State v. Smith

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v. ) Cr. ID. No. 2209007025
)
)
SEAN A. SMITH, )
)
Defendant. )

Submitted: May 1, 2024
Decided: August 9, 2024

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE SUMMARILY DISMISSED

Jillian L. Schroeder, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.

Sean A. Smith, Howard R. Young Correctional Institution, P.O. Box 9561,
Wilmington, DE 19809, pro se.

O’CONNOR, Commissioner.
This 9th day of August, 2024, upon consideration of Defendant’s Motion for

Postconviction Relief;1 Defendant’s Memorandum in support of his Motion for

Postconviction Relief;2 the State’s Response to Defendant’s Motion for

Postconviction Relief; Defendant’s Reply Brief;3 the Affidavit of defense counsel;4

and the record in this matter, the following is my Report and Recommendation.

PROCEDURAL BACKGROUND

On September 14, 2022, Sean A. Smith (“Defendant”) was arrested by

officers from the Wilmington Police Department (“WPD”) for Possession of a

Firearm by a Person Prohibited, Possession of Firearm Ammunition by a Person

Prohibited, and Possession of Marijuana. On November 7, 2022, a New Castle

County Grand Jury indicted the Defendant for Possession of a Firearm by a Person

Prohibited, and Possession of Firearm Ammunition by a Person Prohibited.5

This Court presided over a jury trial from July 31, 2023 to August 1, 2023.

On August 1, 2023, A New Castle County jury found Defendant guilty of both

offenses, Defendant’s bail was revoked, and sentencing was deferred.

On August 30, 2023, this Court sentenced Defendant, imposing an aggregate

sentence of nine years Level V, suspended upon serving five years Level V

1
Docket Item (“D.I.”) 37.
2
D.I. 38.
3
D.I. 45.
4
D.I. 44.
5
The State dismissed the possession of marijuana charge prior to Indictment.
2
(mandatory, pursuant to 11 Del. C. § 1448(e)(1)(b)), followed by one year Level III

probation. The Defendant did not appeal his conviction and sentence.

On October 25, 2023, Defendant filed a pro se Motion for Postconviction

Relief (“Motion”),6 and a Memorandum of Law in Support of his First Motion for

Post-Conviction Relief Pursuant to Superior Court Criminal Rule 61

(“Memorandum”).7 In the Motion and accompanying Memorandum, Defendant

raises two ineffective assistance of counsel claims: first he asserts trial counsel was

ineffective for failing to file a motion to suppress, claiming that the police “exceeded

the scope of a protective search substantiated by Terry v. Ohio;”8 and second,

Defendant argues defense counsel’s representation compromised his trial rights and

autonomy interest.9

In support of his claims, Defendant alleges that, while detained during the

execution of a daytime search warrant at 112 East 23rd Street, Wilmington,

Delaware, police officers patted him down and seized from his pockets a set of car

keys and a zip lock bag containing approximately .5 grams of a green leafy substance

that field tested positive for marijuana.10 According to Defendant, at the same time,

6
D.I. 37.
7
D.I. 38.
8
Id. at 7.
9
Id. at 13.
10
Id. at 3. The Adult Complaint and Warrant provides that several individuals present at 112 East
23rd Street were detained in front of the residence on the curtilage, and they were “observed directly
associating with the address and potential targets.” See State of Delaware v. Sean A. Smith, Case
No. 2209007025, Adult Complaint and Warrant, Exhibit B, at 3. Defendant also concedes he was
3
the police “reported directly to a Black 2014 Nissan Rogue . . . parked directly in

front of 112 East 23rd Street,” where the officers observed, in plain view on the rear

seat of the vehicle, a black firearm.11 Defendant argues that the police exceeded the

scope of a Terry search by “conducting a further investigation as to what vehicle the

keys belonged to.”12

The police obtained a search warrant for the Nissan Rogue, and after towing

the vehicle back to WPD, they executed the search warrant, seizing a black Taurus

nine-millimeter handgun loaded with eleven rounds of nine-millimeter ammunition

from the rear seat of the vehicle.13

Defense counsel submitted an Affidavit in response to Defendant’s ineffective

assistance of counsel allegations.14 In response to Defendant’s claims, defense

counsel explained he did not identify any suppression issue that was either

meritorious or would have changed the outcome of the trial. He also summarized

his understanding of the circumstances of Defendant’s detention and arrest.

“present on the residence’s porch” during the execution of the warrant. D.I. 38, Memorandum at
5 (“The Defendant was present on the residence’s porch, which was encompassed within the search
warrant’s description of the curtilage.”)
11
State v. Smith, Adult Complaint and Warrant, Ex. B, at 3.
12
As will be discussed infra, Defendant’s sequence of events does not comport with the body
camera evidence recorded at the scene and entered into evidence by the State at trial.
13
Id.
14
D.I. 44, Affidavit. In addition to the Affidavit, counsel attached a February 14, 2023 letter sent
to Defendant as an exhibit, detailing the procedural posture of the case, the potential penalties he
faced, communicated the State’s plea offer, and summarized the evidence counsel believed was in
the State’s possession and likely to be offered at trial.
4
Specifically, while the police were executing the search warrant, an officer observed

a firearm in plain view in the rear seat of a vehicle parked immediately in front of

the residence being searched.15 The police then conducted a DMV inquiry, which

indicated the vehicle was registered to Defendant.16 The police secured the vehicle,

transported it to WPD headquarters, obtained a search warrant, and searched the

vehicle.17 Subsequent DNA analysis of swabbings taken by WPD of the firearm

indicated that “Defendant’s DNA was on the firearm.”18 Defense counsel also

generally denies that his representation violated Defendant’s trial and/or autonomy

rights.19

PROCEDURAL BARS

In any motion for postconviction relief, this Court must first determine

whether a defendant has satisfied the procedural requirements of Superior Court

Criminal Rule 61 (“Rule 61”) before considering the merits of any underlying

claim.20 Rule 61(i) prohibits the Court from considering motions for postconviction

15
Id. at 1-2.
16
Id.
17
Id.
18
Id. at 2.
19
Id.
20
Taylor v. State, 32 A.3d 374, 388 (Del. 2011) (quoting Shelton v. State, 744 A.2d 465, 474 (Del.
1999)).
5
relief that are untimely,21 repetitive,22 procedurally defaulted,23 and/or formerly

adjudicated.24

This is Defendant’s first Motion, and it was timely filed on October 25, 2023,

less than two months after this Court imposed sentence. Additionally, pursuant to

Rule 61(i)(3), any claim not previously asserted is considered waived, and here,

Defendant did not raise his claims before the judgment of conviction was entered.

However, because ineffective assistance of counsel motions cannot be raised at any

earlier stage of the proceedings, they are properly asserted in a motion for

postconviction relief, and the procedural bar of Rule 61(i)(3) is inapplicable as to

those claims.25

Finally, the procedural bar, found in Rule 61(i)(4) does not apply to

Defendant’s postconviction motion, as his postconviction claims were not formerly

adjudicated.

Because Defendant’s Motion is not procedurally barred, his claims will be

addressed in the order they were presented.

21
Super. Ct. Crim. R. 61(i)(1).
22
Super. Ct. Crim. R. 61(i)(2).
23
Super. Ct. Crim. R. 61(i)(3).
24
Super. Ct. Crim. R. 61(i)(4).
25
See Green v. State, 230 A.3d 160, 175-76. (Del 2020).
6
DISCUSSION

To successfully present an ineffective assistance of counsel claim, a defendant

must not only show that defense counsel’s performance was deficient; he must also

show that defense counsel’s deficient performance prejudiced him.26 Judicial

scrutiny of defense counsel’s performance is “highly deferential.”27 To properly

assess defense counsel’s performance, this Court is to make every effort to eliminate

the distorting effects of hindsight, to reconstruct the circumstances of counsel’s

alleged defective conduct, and to evaluate counsel’s performance at the time

strategic decisions were made.28 There exists “a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance . . . .”29

And, to present a successful postconviction claim, a defendant “must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.”30

Here, defense counsel indicated he was aware of the factual circumstances of

the police officer’s discovery and seizure of the handgun, and concluded a motion

to suppress would be meritless under the circumstances.31

26
Strickland v Washington, 466 U.S. 668, 687 (1984).
27
Id. at 689.
28
Id.
29
Id.
30
Id. at 694.
31
D.I. 44, Affidavit at 1.
7
To consider Defendant’s Motion in the context of the evidence presented at

trial, State’s Exhibits 3 and 4, the bodycam videos of WPD Detective Anthony Lerro

(“Det. Lerro) and WPD Detective Hector Cuadrado (“Det. Cuadrado”), recorded the

events leading up to Defendant’s detention, the officer’s observation of the firearm

in the vehicle, the recovery of the key fob from Defendant’s pants pocket, which,

when activated, provided circumstantial evidence that Defendant possessed the

Nissan Rogue, and inferentially, the recovered handgun, and Det Cuadrado

contacting WPD dispatch to determine the registered owner of the Nissan Rogue.32

These recordings are the best objective evidence available to review the police

conduct during the execution of the search warrant and detention and search of the

Defendant, and the content of the videos will be discussed in detail, below.

As depicted on Det. Lerro’s bodycam video as he arrived at the target

residence and exited a police vehicle with several other officers, Defendant was

moving away from the residence.33 In fact, the officers commented as they exited

the vehicle that they believe Defendant intended to “run,” or flee the area.34 But

Defendant had not gotten more than a few yards from the residence, and Det. Lerro

detained him and brought him back to the sidewalk.35 After Defendant was patted

32
State’s trial Exs. 3 and 4, Bodycam videos of Det. Lerro and Det. Cuadrado. Det. Lerro felt a
set of car keys in Defendant’s pocket when he patted him down. Also see D.I. 52, Trial Tr. at
52:20 – 53:8.
33
State’s trial Ex. 3, Bodycam video of Det. Lerro.
34
Id.
35
Id.
8
down, he was handcuffed and seated on the sidewalk just outside the residence, along

with several other subjects.36 A short time later, another WPD officer announced

that he saw a firearm in the rear interior of a black Nissan Rogue parked directly in

front of the residence.37

Once the firearm was observed and the other officers on scene were notified

of its existence, Det. Lerro returned to Defendant and removed a key fob from his

pants pocket, as he “knew he had a set of car keys on him.”38 The officer then

attempted to activate the key fob, and it appeared the Nissan Rogue was activated

by the officer’s actions.39 Contrary to Defendant’s version of events, the key fob

was not removed from Defendant’s pocket until after a police officer observed the

gun in the rear of the vehicle.40

Shortly after the firearm was discovered in the vehicle, Det. Cuadrado was

advised of this discovery, exited the residence, and responded to the sidewalk

immediately in front of the home being searched and the vehicle containing the

firearm.41 Det. Cuadrado immediately began calling in license plate information to

WPD dispatch to obtain the vehicle registration and owner information for the cars

36
Id. According to the video, Det. Lerro did not remove any items from Defendant’s pants pockets
during the initial pat down and detention.
37
Id.
38
Id. D.I. 52, Trial Tr. at 55:9-13.
39
State’s trial Ex. 3, Det. Lerro bodycam video.
40
Id.
41
State’s trial Ex. 4, Det. Cuadrado bodycam video.
9
in the block, including the Nissan Rogue.42 In fact, the Nissan Rogue was the second

vehicle called in to WPD dispatch, and Det. Cuadrado was informed Defendant was

the registered owner of the vehicle.43 A short time later, Defendant also confirmed

at the scene that the Nissan Rogue was his.44 At this point, WPD had neither entered

the Nissan Rogue nor seized the firearm. It was only later, after they towed the

vehicle and obtained a search warrant for the vehicle, that WPD searched the vehicle

and seized the firearm.

To the extent the Defendant is challenging the legality of his initial detention,

it is well established that a detention of a person found at the scene of the execution

of a search warrant, supported by probable cause, is reasonable under the Fourth

Amendment. As the United States Supreme Court held in Michigan v Summers:

If the evidence that a citizen’s residence is harboring contraband is
sufficient to persuade a judicial officer that an invasion of the citizen’s
privacy is justified, it is constitutionally reasonable to require that
citizen to remain while officers of the law execute a valid search
warrant to search his home. Thus, for Fourth Amendment purposes, we
hold that a warrant to search for contraband founded on probable cause
implicitly carries with it the limited authority to detain the occupants of
the premises while a proper search is conducted.45

42
Id.
43
Id.
44
Id.
45
Michigan v. Summers, 452 U.S 692,704-05 (1981). Summers is predicated on recognizing three
important law enforcement interests which justify the detention of an occupant on scene during
the execution of a search warrant: officer safety, facilitating the completion of the search, and
preventing flight. Id. at 702-703. The Delaware Supreme Court reiterated the substance of the
Summers holding in Harris v. State, 2015 WL 4164837, at *2 (Del. July 8, 2015) (“A search
warrant implicitly carries with it the right to detain the occupants of the premises that are being
searched while the search is conducted.”). And, this Court has held that the term “occupants”
10
During the investigation and in his Memorandum, Defendant conceded that he was

on the porch of the residence as the police approached the residence to execute the

search warrant,46 and based on the video recording of State’s Ex. 3, he was a little

more than a car length from the subject property when detained, well within the

“immediate vicinity of the premises to be searched,” and subject to detention while

the search warrant was executed.47 Defendant’s reliance on Terry v. Ohio48 to

suggest his detention was unreasonable or unlawful is misplaced.

Here, as noted supra, Defendant’s detention at the scene of the search warrant

was reasonable. As the police officers approached to execute the search warrant, the

Defendant was observed at the residence, and immediately began walking away. He

was clearly within the “immediate vicinity” of the residence when contacted and

detained. And, like Summers, officer safety concerns, facilitating the completion of

the search, and preventing flight were paramount considerations, as the police were

executing a search warrant related to a narcotics investigation, which the United

“includes all persons on the premises during the execution of the search warrant, and not merely
the actual residents of the dwelling.” State v Pesikey, 1991 WL 138414, at fn. 15 (Del. Super. July
11, 1991).
46
D.I. 38, Defendant’s Memorandum at p. 6 (“The Defendant was present on the residence’s
porch, which was encompassed within the search warrant’s description of the curtilage.”)
47
Bailey v United States, 568 U.S. 186, 201 (2013).
48
392 U.S. 1 (1968).
11
States Supreme Court recognized as “the kind of transaction that may give rise to

sudden violence or frantic efforts to conceal or destroy evidence.”49

Once detained, Defendant was handcuffed and patted down for weapons.

Feeling a key fob in Defendant’s pocket, Det. Lerro did not remove it from

Defendant’s pocket, but left it in place and lowered Defendant to a seated position

on the sidewalk.50 Another WPD officer, as observed on Det. Lerro’s bodycam

video, a short time later saw what appeared to be a firearm in the rear passenger area

of the Nissan Rogue, and alerted other officers to its presence.51 It was only after

the firearm was observed by an officer and announced to other law enforcement on

scene that Det. Lerro returned to Defendant, removed the key fob from Defendant’s

pocket, and attempted to activate the vehicle with the key fob.52 Upon doing so,

WPD officers retained possession of the key fob.53

Assuming that Det. Lerro’s recovery of the key fob after the discovery of the

firearm and his attempt to activate the vehicle with it constituted a “search” within

the meaning of the Fourth Amendment, Defendant’s claim that he was improperly

searched is meritless, because defense counsel’s decision not to file a motion to

suppress was reasonable under these specific circumstances.

49
Summers, 452 U.S. at 702.
50
State’s trial Ex. 3, Det. Lerro bodycam video.
51
Id.
52
Id.
53
Id.
12
Here, the Inevitable Discovery Doctrine provides ample justification for

defense counsel to exercise his professional judgment in declining to file a motion

to suppress.54 The Inevitable Discovery exception to the Exclusionary Rule allows

a court to admit arguably illegally obtained evidence if the evidence would have

inevitably been discovered through independent, lawful means.55 At the scene, the

police lawfully detained Defendant, consistent with Summers, and in accord with the

execution of a residential search warrant at 112 East 23 rd Street. A pat down of

Defendant suggested he possessed car keys in his pocket, but the keys were not

removed from his pocket or seized at that time. A short time later, a police officer

looked inside the windows of a black Nissan Rogue parked directly in front of the

target residence and saw what appeared to be a firearm in the back seat area.

Detective Lerro then retrieved the key fob from Defendant’s pants pocket and

pressed a button on it, causing the car to alert, providing law enforcement

circumstantial evidence that the Defendant had some possessory interest in the

vehicle and inferentially, the firearm observed in the back seat. Approximately one

minute later, Detective Cuadrado conducted a registration check with WPD dispatch

on several vehicles in the block, including the black Nissan Rogue.56 As a result of

54
See generally Roy v State, 62 A.3d 1183, 1189 (Del. 2012); Thomas v. State, 8 A.3d 1195, 1198-
99 (Del. 2010).
55
See generally Nix v. Williams, 467 U.S. 431, 444 (1984).
56
State’s trial Ex. 4, Det. Cuadrado bodycam video.
13
this inquiry, Defendant’s ownership interest in the vehicle was confirmed,

independent of Detective Lerro’s seizure of the key fob. Stated differently,

Defendant’s ownership interest in the vehicle was confirmed by independent, lawful

means, and Defendant’s postconviction claim fails to demonstrate defense counsel

provided ineffective assistance of counsel in not filing a motion to suppress on that

basis. It was a reasonable exercise of professional judgment for counsel to conclude

that filing a motion to suppress the search and seizure of the handgun was futile and

there would be no resulting prejudice to the Defendant.57 Stated differently,

Defendant has failed to establish “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”58

As to Defendant’s second postconviction claim, Defendant argues counsel’s

alleged ineffectiveness “compromised [his] trial rights and autonomy.”59 Citing U.S.

v Chronic,60 Defendant argues counsel provided defective representation, and

defense counsel’s extensive ineffective assistance relieves Defendant of his

57
To the extent the parties discussed the Plain View Doctrine in their respective submissions, as a
practical matter, this doctrine does not apply here. The Plain View Doctrine allows law
enforcement to seize contraband without a warrant so long as certain elements are met.
Specifically, “a law enforcement officer may seize, without a warrant, contraband that the officer
observes in plain view, but only if (1) the officer is lawfully in a position to observe the contraband,
(2) the item's evidentiary value is immediately apparent, and (3) the officer has a lawful right of
access to the item.” Hardin v. State, 844 A.2d 982, 985 (Del. 2004). Here, as the police obtained
a search warrant for the vehicle and gun, the Plain View Doctrine is inapplicable.
58
Strickland, 466 US. at 694.
59
D.I. 38 at 10.
60
466 U.S. 648 (1984).
14
obligation “for a specific showing of prejudice.”61 Upon review of Defendant’s

autonomy argument, he has not specifically identified the “pivotal moments” of the

trial where defense counsel failed to provide effective representation, and he has

failed to otherwise identify circumstances when counsel either compromised his trial

rights or affected Defendant’s autonomy interest.62

Defendant’s primary argument in support of his claim is that defense counsel

did not file a motion to suppress, which, as was discussed in detail supra, would not

have been meritorious. Moreover, documentation provided by defense counsel

indicates he communicated with Defendant by letter prior to trial (Defendant failed

to appear for relevant Court proceedings on two occasions during the prosecution of

this case (December 9, 2022 and July 10, 2023)), and Defendant did not respond to

the letter or otherwise attempt to further discuss his case with counsel.63

Representation between an attorney and their client is not a one-way street. Without

participation, communication, and cooperation from the client, which appears to

have been lacking here, a defense counsel’s representation can be adversely

impacted by their client’s lack of cooperation.64 Additionally, defense counsel: (1)

61
Id. at 11.
62
Id. “Self-serving assertions are no substitute for facts and evidence.” State v. Smith, 2024 WL
1434184, at *2 (Del. Super. Apr. 2, 2014)..
63
D.I. 44, Affidavit (see exhibit, attached).
64
As the United States Supreme Court noted in Strickland, “Counsel's actions are usually based,
quite properly, on informed strategic choices made by the defendant and on information supplied
by the defendant. In particular, what investigation decisions are reasonable depends critically on
such information.” Strickland, 466 U.S. at 691.
15
presented an opening statement and closing argument, cross-examined all State’s

witnesses, and directed Defendant’s trial testimony; (2) presented a credible defense,

consistent with Defendant’s trial testimony that someone other than Defendant put

the gun in the back of Defendant’s car; (3) filed appropriate trial motions, including

a motion for a Lolly/Deberry65 jury instruction; and (4) after consultation with

Defendant, opposed the State’s request for an Allen66 charge. Defendant’s claim that

trial counsel was derelict in his duty to zealously represent Defendant or otherwise

compromised Defendant’s trial rights and autonomy is unsupported by the record.

CONCLUSION

For all of the aforestated reasons, I recommend the Motion for Postconviction

Relief should be SUMMARILY DISMISSED.

IT IS SO RECOMMENDED.

/S/ Martin B. O’Connor
Commissioner
oc: Prothonotary

65
Lolly v State, 611 A2d 956 (Del 1992); Deberry v. State, 457 A.2d 744 (Del. 1983).
66
Allen v. United States, 164 U.S. 492 (1896).
16