Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1:05-cv—00OO2-JJF Document 13-3 Filed 08/23/2005 Page 1 of 4
EXHIBIT 2

Case 1 :05-cv—00OO2-JJF Document 13-3 Filed 08/23/2005 Page 2 0f 4
Westlaw
Not Reported in A.2d Page l
Not Reported in A.2d, 2004 WL 2914320
(Cite as: Not Reported in A.2d)
H §_lQ Bailey v. Stole 815 A.2d 348
Net Reported in A.2a, 2004 wi. 2914320 t.1L2d&Q;l.
Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT The defense's iynchpin was a motion to suppress
RULES BEFORE C]TlNG_ evidence obtained by suneptitious, video surveillance
Superior Court of Delaware. of a public storage locker where Bailey stored and
STATE of Delaware packaged marijuana. Defendants criminal problems
v_ cascaded after he was videotaped. Before trial,
Edmund BA]LEY’ Dcfgndanp Bailey's trial attomey filed a motion to suppress all
Submgdcd Sept l3,20g4_ evidence derived from the video surveillance. The
Decided Ddd [3’2{]04_ court held a suppression hearing and denied the
motion in a written decision. f__N_3 The suppression
issue was raised again by Bailey in his unsuccessful
Upon Defendants Motion for Postconviction Relief] ducct “Pp°“l·
Under Superior Court Criminal Rule 61 -Summarily
Dismissed _1§'§ State v. Bailqa, Del.Super., Cr. A. No.
Joellc Wright, Deputy Attorney General Edmund 0009007-58* Sil°°"mm•J‘ (N°V· 30*2001)*
Daddy, Ddfdnddm pm sd. Furthermore, all courts who have considered
the Fourth Amendment in the context of
ORDER cameras aimed at public streets or other
areas frequented by large groups of people
*1 Under Superior Court Criminal Rule 6lld), the have dctfcrmlncd that a"_ °xP°°t°“°“ °f
Prothonotary has referred Bailey's motion for P‘°“"F'°-Y m thcsc alms 'S '·'_“'°&$°Pabi°·
postconviction relief and the court has examined the Ch"S‘°ph°r $i°b°gm·
motion and contents of the files relating to the
judgment under attack. Unfortunately, despite Rig
_6_L 's mandate that the preliminary consideration shall reférriflg M Sm"? V· B‘"!ey as
be prompt, this review was delayed for reasons pm°faS¤1ng°'m’°n‘
discussed in the court's letter dated July 12, 2004. In _ _ _
any event, for the reasons discussed below, it plainly Bailsy sfffsrs S°V°m| gmunds f°r p°st°°“V“{“°“
appears from the motion and the record that Bailey is mlm? Fm" hs again, °haH°"g°S thc ""d°°
not entitled to relief and the case is subject to Su“°:°luan?°‘ §°°°nd· Bmlcy _mjg"°s that _h° was
Summary dlsmlssdl unddl, Rule dlldxdl dented his right to ar prehmmary hearing and
assistance of counsel during the pretrial proceedings.
After a bench trial, Bailey was convicted on April 25, BailFY_ r°°°g“iZ‘?S that his sia! ¤9¤¤S¢¤ "“'al"'°d me
2002, of attempted manufacturing methamphetamine, pr°hm_ma'y h°a"mg· but Bmicy "‘S's“ Fhc “""“’°r was
El mlm, dwg offenses and related weapons defective for several reasons. finally, Bailey
offenses. He received a lengthy prison sentence, contends that Us was dcmcd °ff°°[“'° assmancc °f
including many years of mandatory imprisonment. °°u"S°latmal m Sweral ways'
Bailcy filed a direct appeal to the Supreme Court of .
Delaware and his conviction was affirmed on January
24, 2003. QQ I-
Although Bailey's motion is timely, the only issue
PNL Orlglndllyi dw coun convicted that is appropriate for consideration under Rule 6I is
Dgndam Ol- me lddlctdd Offense- By lddcl, Ba1ley's claim of ineffective assistance of counsel.
Order dated July lll, 2002, me com changed The court heard and considered Bai1ey's challenge to
lhc cdmdclldn ld ddd for dndmpmd the video surveillance. The court’s decision about that
mdmd·dcmddd_ is a matter of record and docs not bear repeating. As
noted above, that decision was affirmed.
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I
Case 1 :05-cv—OOOO2-JJF Document 13-3 Filed 08/23/2005 Page 3 of 4
Not Reported in A.2d Page 2
Not Reported in A.2d, 2004 WL 2914320
(Cite as: Not Reported in A.2d)
Accordingly, Bailey's renewed challenge to the video hearing fell below an objective standard, Bailey has
surveillance is barred by Rule 6l§i)j4). fyi not shown that he suffered any prejudice in light of
the subsequent proceedings. @{6
iii; Any ground for relief that was
formerly adjudicated, whether in the _F§@ Grosvenor 849 A.2d at 35.
proceedings leading to the judgment of
conviction, in an appeal is thcreatier Bailey also alleges seven specific failings by his trial
barred, unless reconsideration ofthe claim is counsel. Four of thc seven issues concem the video
wammted in the interest of justice. suweillance of the public storage locker. Otherwise,
Bailey alleges that his trial cotmsel failed to "do the
Bailey’s claims concerning his preliminary hearing necessary investigation of hiring of experts to
fail for two reasons. First, Bailey was required to retaliate against the State's experts,“ "failed to stayin
raise those claims before trial and on direct appeal. contact with his client and prepare a defense ...," and
Bailey has not shown cause for relief from his "failed to question the Miranda issue ..,. "
procedural defaults, nor has he shown prejudice from
violation of his rights. Accordingly, Baileys claims Bailey acknowledges the two prong, Strickland v.
conceming his preliminary hearing are barred by Warhington E_Nj_ standard of review for ineffective
Rule 6l(i)(3), Also, those claims are moot. it is well assistance of counsel claims. He does not, however,
established that the purpose of a prcliminaiy hearing appreciate that a trial artomey can make a mistake,
is to determine whether Defendant can be held until yet still provide effective assistance. Bailey focuses
the case is presented to the Grand Jury. [Nj In other on the mistakes he believes his trial counsel made
words, the preliminary hearing puts a defendants and not on whether those mistakes caused his defense
arrest to the test. It has no direct bearing on a to fall below an objectively reasonable standard. By
subsequent indictment and trial. the samc token, Bailey recognizes S:rfcldand’ s
second prong-trial counseI's substandard performance
caused prejudice to Bailey-but Bailey's prejudice
lll; See Holder v. Smre, 692 A.2d 882, 885 arguments are conclusory.
tDel.l997)(indictment eliminates need for
preliminary hearing). See also Grosvenor v.
Stare, 849 A.2d 33, 3_§ [Dgl.2004) ; Jenkins f_1’~LL 466 U.S. 668 (1934}.
v. State, 305 A.2d 610, 6I4-I5 (Del.l973).
Bailey seems to ignore the fact that on the charges for
*2 The court appreciates that preliminary hearings which he was convicted, the evidence was
sometimes provide valuable discovery for later use overwhelming. Considering the evidence derived
by defendants. Nevertheless, a defect in the through and after the video surveillance, the question
preliminary hearing process, including a defective of Bailey’s overall guilt or innocence was not close.
waiver, has no bearing on a defendants subsequent The evidence easily tied Bailey to large quantities of
conviction. In this case in particular, even if the court dnigs, a stunningly sophisticated methamphetamine
assumes without deciding that Bailey did not waive manufacturing operation and several tirearms.
it, the lack of a preliminary hearing was Basically, the State‘s evidence left no reasonable
inconsequential. As mentioned, Bailey's trial counsel doubt that Bailey was either the mastermind or a
participated in a full-blown suppression hearing substantial figure in a major dnrg operation in
before trial. Moreover, he received discovery under Delaware.
Superior Court Criminal Rule I6.
Trial counsel drew the line in the sand at the
appropriate place, the video surveillance. l-le raised
ll. and fully litigated a substantial search and seizure
question. Once the State breached that line of
Bailcy's claim of ineffective assistance of counsel has defense, the State was left with a highly incriminating
several parts. First, Bailey argues that his trial video tape of Bailey participating in a serious drug-
counsel improperly waived Bailey's preliminary related felony. And that damaging evidence led, in
hearing, That issue was just addressed. Even tum, to other highly incriminating circumstantial
assuming Bailey demonstrated, which he did not, that evidence.
trial counsels decision to waive the preliminary
© 2005 Thomsonfwest. No Claim to Orig. U.S. Govt. Works.

Case 1 :05-cv—00OO2-JJF Document 13-3 Filed 08/23/2005 Page 4 of 4
Not Reported in A.2d Page 3
Not Reported in A.2d, 2004 WL, 2914320
(Cite as: Not Reported in A.2d)
*3 Finally, Bailey questions his decision to waive
trial by jury. Bailey failed to raise the issue on ln summary, Bailey's original hopes tumed on his
appeal. Therefore, the claim is proeedurally motion to suppress the video surveillance tape and
defaulted. At this point, the only proper inquiry is the evidence to which it led. The suppression
whether Bailey received ineffective assistance of question was challenging. But once the suppression
counsel when he decided to waive u·ial by jury. motion was lost, the prosecution was all but a
Bailey does not begin to make a viable claim under walkover. After his motion to suppress was denied,
Strickland Bailey's next best hope was on direct appeal.
Moreover, consistent with Bailey's approach to most Bailey's trial counsel identified and pursued Bailey's
of his other claims, Bailey's substantive arguments best defense with, at least., better than average
are theoretical and conclusory. He fails to explain competence. Bailey has not shown and the court
how his decision to waive thc jury in this case was carmot see how different counsel or a different
uninformed, involuntary and wrong. The record does approach would have produced a better result.
not reflect a coiloquy about Bailey's waiver of jury
trial, but Bailey signed a Stipulation of Waiver of
Jury Trial. IV.
Bailey offers argument and authority for the *4 For the foregoing reasons the Motion for
proposition that before his waiver of jury trial could Postconviction Relief is summarily DISMISSED. The
be knowing and intelligent, he had to understand that Prothonotary shall cause the movant to be notified.
a jury is composed of twelve people, he could
participate in jury selection, the jttry's verdict had to l'l` IS SO ORDERED.
be unanimous and his guilt or innocence would be
decided by a judge. Bailey, however, does not allege Del.Super.,2004.
that he actually was unaware of any of those things. State v. Bailey
And the court takes notice that Bailey reportedly is a Not Reported in A.2d, 2004 WL 29l4320
high school graduate and no stranger to the criminal
justice system. Besides his steady stream of arrests END OF DOCUMENT
over the past twenty years, Bailey was convicted of a
felony drug offense in Pennsylvania in l986, a felony
weapons offense in Delaware in l990, and drug
trafficking in Delaware in 1993. The latter conviction
came alter a plea colloquy.
Beyond that, the reason for Bailey's waiver is
apparent. ln light of the State's evidence, Bailey had
almost no chance of outright acquittal. Meanwhile,
considering the evidence tying him to a major drug
manufacturing and distribution operation, the risk of
ajury being unfairly intiuenced by that evidence was
substantial. In retrospect, the court should have made
a better record about Bailey's waiver. Nevertheless,
Bailey waived a jury trial, in writing, on advice of
experienced counsel. And he waived the claim on
appeal. Furthermore, Bailey does not allege, much
less establish, that his written waiver was
involuntary, uninformed, or even a mistake. Again,
Bailey does not come close to establishing that his
decision to waive trial by jury was produced through
ineffective assistance of counsel, much less that he
su ffered prejudice.
Ill.
GD 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.