State v. McDougal
1311013513
Del. Super. Ct.Dec 11, 2017Background
- In November 2013 police stopped a silver car after reports of a domestic disturbance; McDougal was removed to a patrol car and officers later observed a loaded .45 handgun behind the driver’s seat. No usable DNA or fingerprints linked McDougal to the gun.
- Maurice Harding testified at trial that the gun belonged to him and had been left in the car when he exited to buy drugs; Harding earlier gave an affidavit to that effect but was a cellmate of McDougal at the time of trial.
- McDougal was tried by jury and convicted of: Possession of a Firearm by a Person Prohibited (PFBPP), Possession of Ammunition by a Person Prohibited (PABPP), and Carrying a Concealed Deadly Weapon (CCDW). Sentence: aggregate 19 years Level V (11 years active for PFBPP, with statutory minimums noted).
- McDougal filed a Rule 61 postconviction motion asserting (1) the constructive-possession theory/instruction for PFBPP/PABPP was legally incorrect, and (2) trial counsel was ineffective for failing to object to prosecutorial comments; pro se he also challenged counsel’s stipulation that he was a person prohibited and failure to sever charges.
- The Commissioner found the jury instructions on constructive possession (as given) omitted the required element of intent to exercise dominion/control and that the prosecutor misstated law in closing; trial counsel admitted he failed to catch the erroneous instruction.
- Recommendation: vacate PFBPP and PABPP convictions and grant a new trial on those charges; affirm CCDW conviction; deny the remaining ineffective-assistance and severance-related claims.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (McDougal) | Held |
|---|---|---|---|
| Whether the jury instruction on constructive possession for PFBPP/PABPP was legally correct | Instruction as given sufficiently informed jury about possession and control | Instruction omitted required element that defendant intended to exercise dominion/control over weapon | Instruction was legally incorrect; convictions for PFBPP and PABPP vacated and new trial ordered |
| Whether prosecutor’s closing comment (implying witness had nothing to lose) warranted reversal or counsel’s ineffective assistance for not objecting | Comment was not so prejudicial; court admonished jury and counsel tactically limited objections | Failure to object prejudiced jury by bolstering State’s view of witness credibility | Claim denied — counsel’s choices were tactical, jury was appropriately admonished; no Strickland relief granted |
| Whether counsel was ineffective for stipulating McDougal was a person prohibited and not moving to sever CCDW from PFBPP/PABPP | Joinder and stipulation were proper trial strategy to avoid exposing prior conviction; limiting instruction was given | Stipulation and joinder prejudiced McDougal and counsel should have severed | Claim denied — stipulation and joint trial were reasonable strategy; no prejudice shown |
| Whether the CCDW conviction should be set aside because of instruction or joinder issues | CCDW instruction differed and correctly stated law (immediate control/availability) | Same errors that affected PFBPP/PABPP require reversal of CCDW | CCDW instruction was correct; conviction affirmed and remains in place |
Key Cases Cited
- Gallman v. State, 14 A.3d 502 (Del. 2011) (constructive-possession instruction must require both power and intention to exercise control over a weapon)
- Lum v. State, 101 A.3d 970 (Del. 2014) (cited on possession-law principles)
- Albury v. State, 551 A.2d 53 (Del. 1988) (deference to tactical decisions of trial counsel)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Harrington v. Richter, 562 U.S. 86 (2011) (deference to counsel’s strategic choices under Strickland)