Dunnell v. State

1

DWAYNE DUNNELL, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee.

No. 159, 2021

Supreme Court of Delaware

January 20, 2022

Submitted: December 3, 2021

Court Below-Superior Court of the State of Delaware Cr. ID No 1604008485A (N)

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

Karen L. Valihura Justice

(1) The appellant, Dwayne Dunnell, has appealed the Superior Court's denial of his first motion for postconviction relief under Superior Court Criminal Rule 61. After careful consideration of the parties' briefs and the record, we affirm the Superior Court's judgment.

(2) In 2016, a grand jury indicted Dunnell for several drug- and firearm-related offenses. The charges arose after a confidential informant advised Detective Bruhn of the New Castle County Drug Control Unit that a man known as "Buck" was selling drugs. The informant provided two phone numbers for Buck. Through further investigation Detective Bruhn determined that Buck was a nickname for Dunnell. The informant reviewed a photo of Dunnell and positively identified him as Buck.

(3) During the week of April 4, 2016, the New Castle County Police Department ("NCCPD") had the same informant arrange a heroin purchase with Buck. The informant called Buck in the presence of NCCPD to arrange the purchase, then went to a residence located at 24 Gull Turn in Newark Delaware, to purchase heroin from a person known as "Dreads." NCCPD determined that Dunnell's cousin, Kyle Dunnell ("Kyle"), listed 24 Gull Turn as his address. They showed a picture of Kyle to the informant, and the informant identified the person in the photo as Dreads. NCCPD used the informant to purchase heroin from 24 Gull Turn again during the week of April 11, 2016. Again, the informant called Buck to arrange the transaction and purchased the heroin from Dreads.

(4) On April 12, 2016, the investigating officers obtained a search warrant for 24 Gull Turn. Officers executed the warrant on April 13, 2016. Dunnell and Kyle were in the home when the warrant was executed. The officers found no contraband on Dunnell or Kyle, but they found a safe in the laundry room that contained 3, 488 bags of heroin, a loaded handgun, a loaded extended magazine, and a digital scale. They found the key to the safe in the pocket of a pair of Kyle's pants. They also found a bag of pink glassine baggies in the kitchen, a paystub with Dunnell's name on it in the laundry room, and shotgun shells in the laundry room and hall closet. They found $371 in cash and two cell phones in Dunnell's bedroom, two more cell phones in Kyle's room, and another digital scale in a spare bedroom. NCCPD found no fingerprint or DNA evidence that connected Dunnell to the safe or its contents.

(5) Following the search of 24 Gull Turn and the discovery of the drugs and gun, NCCPD obtained search warrants for a silver Lexus that was parked in the driveway and for a Jeep Grand Cherokee that was parked across the street. Police found a fifth phone, an Alcatel flip phone, in the Lexus. Dunnell told a detective that everything in the car was his and did not deny that the Alcatel flip phone was his when the detective later described the car's contents when interviewing Dunnell.

(6) Police then obtained search warrants to search the contents of all the cell phones. One text message that was sent from the Alcatel flip phone at 2:54 a.m. on March 12, 2016, read "King Kong." Some of the heroin found in the safe was stamped "King Kong." Incoming and outgoing text messages that were found on a Samsung phone that had been located in Dunnell's bedroom suggested involvement in drug-dealing activity.

(7) On March 3, 2017, following a four-day jury trial, a Superior Court jury convicted Dunnell of drug dealing (Tier 4 heroin), aggravated possession of heroin, and second-degree conspiracy. The jury acquitted Dunnell of the firearm offenses and possession of drug paraphernalia. The Superior Court sentenced Dunnell as follows: for drug dealing, under the habitual-offender statute, ^[1] to seven years of incarceration; for second-degree conspiracy, to two years of incarceration, suspended for one year of Level III probation.^[2] This Court affirmed on direct appeal.^[3]

(8) Dunnell filed a pro se motion for postconviction relief. The Superior Court appointed postconviction counsel, who later filed a motion to withdraw after finding no meritorious claims to assert. The Superior Court granted the motion to withdraw and denied the motion for postconviction relief, and Dunnell has appealed to this Court. On appeal, Dunnell asserts three claims of ineffective assistance of his trial counsel and one claim of ineffective assistance of his appellate counsel. He contends that his trial counsel was ineffective for failing to challenge the warrants to search the contents of the cell phones on two grounds: that the warrants were overbroad and that the affidavits presented in support of the applications for the search warrants did not establish a sufficient nexus between the cell phones and the alleged crimes. Dunnell also contends that his trial counsel was ineffective for failing to seek a limiting instruction concerning the King Kong text message and the messages from the Samsung phone that suggested drug-dealing activity. Finally, he contends that his appellate counsel was ineffective for failing to appeal the denial of the motion to suppress.

(9) This Court reviews the Superior Court's denial of a motion for postconviction relief for abuse of discretion.^[4] We review legal or constitutional questions, including claims of ineffective assistance of counsel, de novo^[5] The Court considers the procedural requirements of Rule 61 before addressing any substantive issues.^[6]

(10) The claims of ineffective assistance of counsel that Dunnell asserts on appeal are not procedurally barred.^[7] In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that (i) his defense counsel's representation fell below an objective standard of reasonableness, and (ii) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.^[8] Although not insurmountable, there is a strong presumption that counsel's representation was professionally reasonable.^[9] The same Strickland framework applies when evaluating a claim that appellate counsel provided ineffective assistance.^[10]

(11) Dunnell asserts two ineffective-assistance claims relating to the cellphone search warrants. First, he contends that his trial counsel was ineffective for failing to challenge the warrants on the basis that the affidavits presented in support of the applications for the search warrants did not establish a sufficient nexus between the cell phones and the alleged crimes. The affidavit that trial counsel submitted to the Superior Court in response to Dunnell's ineffective-assistance claims states that counsel sought to suppress the contents of the flip phone found in Dunnell's Lexus on the basis that the affidavit submitted in support of the warrant application did not establish probable cause and that, if the motion had been successful, the "King Kong" text message would have been excluded from evidence at trial.^[11] Trial counsel's affidavit further stated that he did not challenge the search warrants for the other cell phones because in his professional opinion the affidavits in support of those warrants did support a finding of probable cause.^[12]

(12) The Superior Court determined that counsel's performance with respect to this issue was not objectively unreasonable ^[13] and we agree. To the extent that Dunnell contends that trial counsel did not seek to exclude evidence from the flip phone, he is incorrect: counsel filed a motion to suppress on the basis that the warrant to search that phone lacked probable cause and also filed a motion in limine that sought to exclude the text messages from that phone. To the extent that Dunnell challenges trial counsel's decision not to challenge the warrants for the other phones, we cannot conclude that counsel's decision was objectively unreasonable. The affidavits submitted in support of the warrants stated that Dunnell used Kyle's assistance to facilitate drug transactions from 24 Gull Turn; that the affiant had used a confidential informant to conduct controlled purchases of heroin from that property; that the phones were located in Dunnell's and Kyle's bedrooms at 24 Gull Turn during the execution of a search warrant at that property; that a substantial amount of heroin, drug paraphernalia, and a firearm and ammunition were also found in the property; and that, based on the affiant's training and experience, persons involved in selling drugs use their cell phones in various ways relating to drug sales.^[14] Counsel's conclusion that there was no reasonable basis to raise a probable-cause argument was not objectively unreasonable.^[15] (13) Second, Dunnell asserts that the warrants to search the cell phones were overbroad because they allowed a "top to bottom" search of the phones and did not limit the information to be searched to any relevant timeframe. Relying on Taylor v. State, ^[16] he contends that his counsel should have sought to suppress evidence obtained from the phones on those grounds. Although Dunnell does not specifically identify the text messages at issue, it appears that the relevant text messages include (i) the March 12, 2016, "King Kong" message located on the flip phone that was found in Dunnell's Lexus and (ii) a series of incoming and outgoing text messages that were sent during the first two weeks of April 2016, which were extracted from the Samsung phone that was found in...