IN THE SUPREME COURT OF THE STATE OF DELAWARE
ROBERT MOODY, § § No. 570, 2017 Petitioner Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § ID. No. 1307020184 STATE OF DELAWARE, § § Respondent Below, § Appellee. §
Submitted: August 15, 2018 Decided: September 24, 2018
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
This 24th day of September 2018, upon consideration of the parties’ briefs and
the record on appeal, it appears that:
(1) The Appellant, Robert Moody, appeals from a Superior Court order
which denied his motion for postconviction relief. He asserts three claims. He
contends that: (1) the Superior Court erred by ruling he was not prejudiced by his
trial counsel’s failure to move to sever a person prohibited charge and counsel’s
stipulation to his person prohibited status; (2) the Superior Court erred by ruling that
his trial counsel was not ineffective in failing to move to suppress evidence of a
firearm and ammunition that formed the basis for the charges against him; and (3) the Superior Court abused its discretion by not allowing an expansion of the record
during the postconviction proceedings. We find no merit to Moody’s claims and
affirm.
(2) Around midnight on July 25, 2013, Wilmington Police Officer
Matthew Geiser was patrolling a high crime neighborhood.1 He observed Moody
riding his bicycle with a noticeable bulge around his right rear waistline. Based on
Officer Geiser’s training and experience, he believed Moody was armed. He
sounded his vehicle’s air horn and ordered Moody to stop. Moody looked at the
officer and performed a “security check” of his right rear waistline with his hand.
Then, Moody sped up on his bicycle and turned down an alleyway behind the vacant
Walt’s Flavor Crisp store.
(3) Officer Geiser crossed paths with Moody at the other end of the alley.
He ordered Moody to get off his bicycle and noticed Moody no longer had a bulge
in his right rear waistline. Along with other officers, Officer Geiser searched the
area and arrested Moody after discovering a .357 Magnum on the roof of one the
buildings adjacent to the ally. The gun was loaded with three rounds of
ammunition.
(4) On March 22, 2014, a jury convicted Moody of possession of a firearm
1 All facts are drawn from our previous decision on Moody’s direct appeal. Moody v. State, 2016 WL 768353 (Del. Feb. 26, 2016).
2 by a person prohibited, carrying a concealed deadly weapon, and possession of
ammunition by a person prohibited. Moody was sentenced to a total of 21 years at
level V, suspended after 5 years for decreasing levels of probation.
(5) Moody filed a direct appeal to this Court. We affirmed his conviction.2
Moody then filed a timely Motion for Postconviction Relief. The Superior Court
denied his motion. This appeal followed.
(6) The Superior Court’s denial of a Rule 61 Motion for Postconviction
relief is reviewed for an abuse of discretion.3 Questions of law are reviewed de
novo.4
(7) The two-pronged test for claims of ineffective assistance of counsel was
established by the United States Supreme Court in Strickland v. Washington.5 First,
a defendant must show that his “counsel’s representation fell below an objective
standard of reasonableness.”6 “Second, the defendant must show that the deficient
performance prejudiced the defense.”7
(8) Trial counsel’s actions “are afforded a strong presumption of
2 Id. 3 Neal v. State, 80 A.3d 935, 941 (Del. 2013). 4 Id. 5 466 U.S. 668 (1984). 6 Id. at 687. 7 Id.
3 reasonableness” because of the “distorting effects of hindsight.” 8 The conduct
being challenged must be evaluated “from the counsel’s perspective at that time.” 9
(9) If a defendant is able to demonstrate “that his counsel’s conduct fell
below an objective standard of reasonableness,” he must then demonstrate counsel’s
error was “so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.”10 “Defendant must establish ‘that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’”11
(10) Moody first contends that the Superior Court erred by ruling that his
trial counsel was not ineffective by failing to move to sever the person prohibited
charge. His theory is that he suffered prejudice because trying the person prohibited
charge together with the other two charges allowed the jury to infer that he had a
motive for disposing of the firearm. It allowed the jury to infer, the reasoning goes,
that he threw the weapon on the roof because he knew that he was a person
prohibited and could not be caught with a firearm in his possession. This inference,
he contends, enabled the State to prove that he was carrying a concealed deadly
weapon with ammunition when he was first observed. Had the person prohibited
8 Neal, 80 A.3d at 941-42 (citing Strickland, 466 U.S. at 689). 9 Strickland, 466 U.S. at 689. 10 Neal, 80 A.3d at 942 (citing Strickland, 466 U.S. at 687). 11 Id. (citing Strickland, 466 U.S. at 694).
4 charge been severed, he argues, the State would not have been able to prove that he
was carrying a concealed deadly weapon or that he possessed ammunition.
(11) Under the first Strickland prong, Moody must show trial counsel’s
decision was objectively unreasonable. Trial counsel filed an affidavit in the
postconviction proceeding attesting that he did not believe a good faith basis existed
to move for severance of the person prohibited charges. The trial strategy was to
draw “as little attention as possible to [the person] prohibited status and focus[] on
the reasonable doubt evidence and arguments concerning constructive possession.”12
Superior Court Rule 8(a) allows for joinder of charges that are the product of a
common scheme or plan. We have previously held “that [even though] Person
Prohibited charges are frequently severed, it is also true they are sometimes tried
together with the other charged offenses.”13 “[A] defendant making an ineffective
assistance of counsel claim must show that joinder of the offenses was sufficiently
prejudicial that it was objectively unreasonable for defense counsel not to move for
severance.”14 In this case the charges were properly joined and no showing has
been made that prejudice resulted which rendered it objectively unreasonable for
defense counsel not to move to sever. While it was unlawful for the defendant to
12 Moody v. State, 2017 WL 5952762, at *2 (Del. Super. Ct. Nov. 30, 2017). 13 Dale v. State, 2017 WL 443705, at *2 (Del. Jan. 31, 2017). 14 Id.
5 be in possession of a firearm because he was a person prohibited, it was also
unlawful for him to carry a firearm concealed. The State was free to argue that he
had a motive or reason to dispose of the firearm while in the alley because he was
carrying it concealed illegally when the officer commanded him to stop. Stipulating
to the person prohibited status, which prevented the jury from being aware of the
reason the defendant was a person prohibited, was an acceptable strategic choice.
(12) In addition, the State presented sufficient evidence such that even had
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
ROBERT MOODY, § § No. 570, 2017 Petitioner Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § ID. No. 1307020184 STATE OF DELAWARE, § § Respondent Below, § Appellee. §
Submitted: August 15, 2018 Decided: September 24, 2018
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
This 24th day of September 2018, upon consideration of the parties’ briefs and
the record on appeal, it appears that:
(1) The Appellant, Robert Moody, appeals from a Superior Court order
which denied his motion for postconviction relief. He asserts three claims. He
contends that: (1) the Superior Court erred by ruling he was not prejudiced by his
trial counsel’s failure to move to sever a person prohibited charge and counsel’s
stipulation to his person prohibited status; (2) the Superior Court erred by ruling that
his trial counsel was not ineffective in failing to move to suppress evidence of a
firearm and ammunition that formed the basis for the charges against him; and (3) the Superior Court abused its discretion by not allowing an expansion of the record
during the postconviction proceedings. We find no merit to Moody’s claims and
affirm.
(2) Around midnight on July 25, 2013, Wilmington Police Officer
Matthew Geiser was patrolling a high crime neighborhood.1 He observed Moody
riding his bicycle with a noticeable bulge around his right rear waistline. Based on
Officer Geiser’s training and experience, he believed Moody was armed. He
sounded his vehicle’s air horn and ordered Moody to stop. Moody looked at the
officer and performed a “security check” of his right rear waistline with his hand.
Then, Moody sped up on his bicycle and turned down an alleyway behind the vacant
Walt’s Flavor Crisp store.
(3) Officer Geiser crossed paths with Moody at the other end of the alley.
He ordered Moody to get off his bicycle and noticed Moody no longer had a bulge
in his right rear waistline. Along with other officers, Officer Geiser searched the
area and arrested Moody after discovering a .357 Magnum on the roof of one the
buildings adjacent to the ally. The gun was loaded with three rounds of
ammunition.
(4) On March 22, 2014, a jury convicted Moody of possession of a firearm
1 All facts are drawn from our previous decision on Moody’s direct appeal. Moody v. State, 2016 WL 768353 (Del. Feb. 26, 2016).
2 by a person prohibited, carrying a concealed deadly weapon, and possession of
ammunition by a person prohibited. Moody was sentenced to a total of 21 years at
level V, suspended after 5 years for decreasing levels of probation.
(5) Moody filed a direct appeal to this Court. We affirmed his conviction.2
Moody then filed a timely Motion for Postconviction Relief. The Superior Court
denied his motion. This appeal followed.
(6) The Superior Court’s denial of a Rule 61 Motion for Postconviction
relief is reviewed for an abuse of discretion.3 Questions of law are reviewed de
novo.4
(7) The two-pronged test for claims of ineffective assistance of counsel was
established by the United States Supreme Court in Strickland v. Washington.5 First,
a defendant must show that his “counsel’s representation fell below an objective
standard of reasonableness.”6 “Second, the defendant must show that the deficient
performance prejudiced the defense.”7
(8) Trial counsel’s actions “are afforded a strong presumption of
2 Id. 3 Neal v. State, 80 A.3d 935, 941 (Del. 2013). 4 Id. 5 466 U.S. 668 (1984). 6 Id. at 687. 7 Id.
3 reasonableness” because of the “distorting effects of hindsight.” 8 The conduct
being challenged must be evaluated “from the counsel’s perspective at that time.” 9
(9) If a defendant is able to demonstrate “that his counsel’s conduct fell
below an objective standard of reasonableness,” he must then demonstrate counsel’s
error was “so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.”10 “Defendant must establish ‘that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’”11
(10) Moody first contends that the Superior Court erred by ruling that his
trial counsel was not ineffective by failing to move to sever the person prohibited
charge. His theory is that he suffered prejudice because trying the person prohibited
charge together with the other two charges allowed the jury to infer that he had a
motive for disposing of the firearm. It allowed the jury to infer, the reasoning goes,
that he threw the weapon on the roof because he knew that he was a person
prohibited and could not be caught with a firearm in his possession. This inference,
he contends, enabled the State to prove that he was carrying a concealed deadly
weapon with ammunition when he was first observed. Had the person prohibited
8 Neal, 80 A.3d at 941-42 (citing Strickland, 466 U.S. at 689). 9 Strickland, 466 U.S. at 689. 10 Neal, 80 A.3d at 942 (citing Strickland, 466 U.S. at 687). 11 Id. (citing Strickland, 466 U.S. at 694).
4 charge been severed, he argues, the State would not have been able to prove that he
was carrying a concealed deadly weapon or that he possessed ammunition.
(11) Under the first Strickland prong, Moody must show trial counsel’s
decision was objectively unreasonable. Trial counsel filed an affidavit in the
postconviction proceeding attesting that he did not believe a good faith basis existed
to move for severance of the person prohibited charges. The trial strategy was to
draw “as little attention as possible to [the person] prohibited status and focus[] on
the reasonable doubt evidence and arguments concerning constructive possession.”12
Superior Court Rule 8(a) allows for joinder of charges that are the product of a
common scheme or plan. We have previously held “that [even though] Person
Prohibited charges are frequently severed, it is also true they are sometimes tried
together with the other charged offenses.”13 “[A] defendant making an ineffective
assistance of counsel claim must show that joinder of the offenses was sufficiently
prejudicial that it was objectively unreasonable for defense counsel not to move for
severance.”14 In this case the charges were properly joined and no showing has
been made that prejudice resulted which rendered it objectively unreasonable for
defense counsel not to move to sever. While it was unlawful for the defendant to
12 Moody v. State, 2017 WL 5952762, at *2 (Del. Super. Ct. Nov. 30, 2017). 13 Dale v. State, 2017 WL 443705, at *2 (Del. Jan. 31, 2017). 14 Id.
5 be in possession of a firearm because he was a person prohibited, it was also
unlawful for him to carry a firearm concealed. The State was free to argue that he
had a motive or reason to dispose of the firearm while in the alley because he was
carrying it concealed illegally when the officer commanded him to stop. Stipulating
to the person prohibited status, which prevented the jury from being aware of the
reason the defendant was a person prohibited, was an acceptable strategic choice.
(12) In addition, the State presented sufficient evidence such that even had
the person prohibited charge been severed, there is not a reasonable probability that
the outcome would have been any different. Officer Geiser testified to seeing the
bulge in Moody’s waistline, Moody conducting a “security check,” Moody failing
to stop at his command, and Moody no longer having the bulge after he exited the
other end of the alleyway. After searching the alleyway, the .357 Magnum was
spotted in plain view. Based upon this testimony from Officer Geiser, there is not
a reasonable probability that the outcome of the trial would have been different had
the person prohibited charge been severed.
(13) Next, Moody contends that the Superior Court erred by ruling that his
trial counsel was not ineffective for failing to file a motion to suppress the evidence
of the finding of the .357 Magnum. He contends no reasonable, articulable
suspicion existed that Moody was committing, had committed, or was about to
6 commit a crime and Officer Geiser had no probable cause to stop him. He argues
Officer Geiser had no indication Moody was involved in criminal conduct when he
first ordered him to stop; therefore, the ultimate seizure of the gun in the alleyway
was illegal.
(14) Moody relies upon Jones v. State in arguing the initial stop was illegal.15
Jones stands for the proposition that a reasonable, articulable suspicion cannot be
solely based on a person’s presence in a “particular neighborhood at a particular time
of day with no independent evidence that the defendant has committed, is
committing or is about to commit a crime.”16 Moody’s claim is distinguishable.
Based upon Officer Geiser’s experience and training, he reasonably believed Moody
was concealing a firearm based upon the bulge in his rear waistline and the security
check he performed upon that bulge. His stop was not based solely upon his being
in a high crime neighborhood at night.
(15) Moody further relies on the case of United States v. Cronic to support
his ineffective assistance of counsel claim in regard to suppression of the firearm.17
Cronic lays out three scenarios in which prejudice is presumed in an ineffective
assistance of counsel claim. He relies upon the second scenario: “[counsel] entirely
15 745 A.2d 856 (Del. 1999). 16 Id. at 871. 17 466 U.S. 648 (1984).
7 fail[ing] to subject the prosecution’s case to meaningful adversarial testing.” 18
Moody’s reliance on this case is unavailing. Under this concept from Cronic, the
failure to subject the State’s case to meaningful adversarial testing must be
“complete,” not limited to the failure in filing a single motion.19
(16) Turning to the suppression issue under Strickland, Moody must show
trial counsel’s decision was objectively unreasonable. Trial counsel’s affidavit in
the postconviction proceeding attested that he did not believe a good faith basis
existed under current search and seizure law to move for suppression of the gun
because there was no “lack of reasonable suspicion to detain based on the officer’s
allegations of observing a bulge consistent with a firearm.” 20 Officer Geiser
observed the bulge which he believed to be a concealed firearm based upon his
training and experience. Moody was in a high crime area after midnight and
abruptly went the wrong way down a one-way alley when he became aware Officer
Geiser was following him in his marked police car. These facts support trial
counsel’s objectively reasonable thinking that there was no sufficient basis for filing
a motion to suppress the discovery of the firearm.
(17) Under the second Strickland prong, Moody can similarly not show
18 Id. at 658. 19 Bell v. Cone, 535 U.S. 685, 696–97 (2002). 20 App. Opening Br. at 42.
8 prejudice. As already described, Officer Geiser had a reasonable, articulable
suspicion to stop Moody. The subsequent seizure of the .357 Magnum would likely
be upheld as legal. Thus, there is no reasonable probability that the outcome would
have changed had Moody’s counsel filed the motion.
(18) Moody’s third claim on appeal is that the Superior Court abused its
discretion by not allowing him to expand the record during his postconviction
proceeding. He claims that in order to determine whether a motion to suppress
would have been successful in the original trial proceeding he should be allowed to
present witnesses and evidence to allow the postconviction court to have a more
complete record. He argues he should have been allowed to compel testimony from
Officer Geiser to discover his initial motivations in stopping him. This would be
dispositive of the suppression issue, according to Moody.
(19) Grants or denials of evidentiary hearings are reviewed for an abuse of
discretion. 21 The Superior Court decides whether an evidentiary hearing is
desirable.22 Should it not be desirable, the judge is free to make such disposition as
justice dictates.23
(20) Here, the Superior Court had a full record from the initial trial
21 Rodriguez v. State, 109 A.3d 1075, 1081 (Del. 2015). 22 Del. Super. Ct. R. 61(h)(1). 23 Id. at 61(h)(3).
9 proceeding and found a further evidentiary hearing during the postconviction
proceeding was not necessary. The court had Officer Geiser’s testimony from the
preliminary hearing and from the trial. This testimony relates to his reasonable,
articulable suspicions for stopping Moody. The Superior Court decision not to hold
an evidentiary hearing was not an abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr. Justice