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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) I.D.: 2209000664
)
JOHN McCURDY, )
)
Defendant. )
Submitted: October 20, 2025
Decided: October 22, 2025
OPINION AND ORDER
Upon Defendant’s Motion for Post-Conviction Relief
DENIED
Beth Savitz, Esquire, Deputy Attorney General, Office of the Attorney General,
Wilmington, Delaware, Attorney for State of Delaware.
Mr. John McCurdy, 900 North East Road, North East, MD 21901, pro-se Defendant.
Jones, J.
1
On November 7, 2022, a New Castle County grand jury indicted McCurdy and
Marisol Karg for Drug Dealing (marijuana), Drug Possession (marijuana), and
Conspiracy Second Degree.1 McCurdy filed a Motion to Suppress the drug evidence
found pursuant to the search warrant of his storage unit and apartment.2 The Superior
Court denied the motion.3 A motion to sever the cases of McCurdy and Karg was
granted.4 A two day jury trial for the charges against McCurdy occurred on February
20 and 21, 2024. The issue at trial was who was the owner of the drugs. Karg testified
on behalf of McCurdy and claimed ownership of the drugs. The jury found McCurdy
guilty on all counts.5 McCurdy received a probationary sentence. He filed a direct
appeal to the Delaware Supreme Court which resulted in an affirmance of his
conviction.6
On June 17, 2025 McCurdy filed a pro-se Motion for Postconviction Relief
asserting three claims: (1) trial counsel was ineffective for failing to adequately
prepare for trial; lead counsel turned the case over to a more junior attorney giving her
little or no oversight; failed to identify or subpoena a key witness who took
photographs of Defendant’s storage shed; and failed to compel the state to turn over
exculpatory materials: (2) Defendant’s right to confront witnesses was violated when
1
D.I. 2.
2 D.I. 12.
3 D.I. 19.
4 D.I. 22.
5 D.I. 37.
6
McCurdy v. State of Delaware, 2025 WL 751352 (Del. Supr., 2025).
2
the person who took photos of his storage shed was never identified and therefore not
subject to cross examination; and (3) there was a Brady violation in that an email from
the codefendant along with a voice mail left by the codefendant in which she admitted
to the ownership of the marijuana found was not disclosed before or during trial.7
Defendant has also filed a Motion for Appointment of counsel.
FACTS
In August 2022, Officer Drew Hunt (“Officer Hunt”) of the New Castle
County Police received detailed information from a Crime Stoppers Tip advising
that “John McCurdy” of 162 Greenbridge Drive, 8 Apt, E3, Newark, Delaware
19711 was selling marijuana and prescription drugs from his residence.8 The tipster
also advised that McCurdy was storing marijuana in unit #1526 at Storage Rentals
of America located at 20990 Stafford Way, Newark, Delaware 19711. 9 The tipster
gave police detailed information about McCurdy including his physical description,
address, telephone number, and the description and license plate number of the car
he drove. 10
The unknown tipster also gave police two photos from what was purported to
be the storage unit in question. The first photo is purported to be an image of
7
It was not crystal clear in Defendant’s Motion Papers as to what photographs he was referring to and what voicemail.
Defendant, at a hearing called by the Court, confirmed that the photographs being complained about were from the
tipster and the voicemail was from the Co-Defendant to the prosecutor.
8
Affidavit of Probable Cause.
9 Id.
10
See, page 48-49 Appendix of Appellant’s Supreme Court BRHJ.
3
McCurdy inside of a storage unit.11 The second photo does show a container of two
large vacuum sealed bags.12
The police corroborated the information given by the tipster. Through various
CJIS/DELJIS inquiries, police positively identified “John McCurdy” as McCurdy.
Officer Hunt conducted a property check and located the identified vehicle, with the
reported license plate number, parked in front of 162 Greenbridge Drive, 8 Apt, E3.13
A CJIS inquiry showed that the vehicle was registered to McCurdy.14
Officer Hunt responded to Storage Rentals of America located at 2090
Stafford Way, Newark, Delaware 19711.15 Staff there confirmed that McCurdy
rented storage unit number 1526, as reported by the tipster.16 Storage Rentals of
America staff granted officers access to the secured building where unit 1526 was
located so that they could conduct an “open air K9 sniff” of the units.17
Officer Smack of the K9 Unit and his canine partner Thor responded to the
storage facility to conduct the open-air sniff from outside the unit.18 Thor alerted for
the presence of “a controlled dangerous substance” outside of unit 1526. 19 This
prompted police to seek, and subsequently obtain, a search warrant for that storage
11
Id.
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
17
Id.
18
Id.
19
Id.
4
unit.20 The affidavit of probable cause to obtain the search warrant included the
above facts.21
From within the unit, police seized three bags, totally 1,006.16 grams, of a
green leafy plant-like substance that field tested positivity for marijuana.22 They also
seized cash and money orders totaling $7,420.00.23 The next day, police obtained a
search warrant for 162 Greenbridge Drive, Apt E3 to search McCurdy’s apartment.24
In response to McCurdy’s ineffective assistance of counsel claims affidavit of
Eugene Maurer and Molly Dugan have been filed.25 Those affidavits provide as
follows:
AFFIDAVIT OF EUGENE J. MAURER, JR.
I, Eugene J. Maurer, Jr., having been duly sworn, do hereby state
as follows:
1. I am a criminal defense attorney practicing in the State of
Delaware and a licensed member of the Delaware Bar since September
of 1975.
2. I, together with my associate and co-counsel, Molly R.
Dugan, were retained to represent Mr. McCurdy in the above-captioned
matter in September of 2022.
3. McCurdy was indicted in November of 2022 on charges of
Drug Dealing, Possession of Marijuana (Felony), and Conspiracy in the
Second Degree, along with co-defendant Marisol Karg.
4. I have reviewed the affidavit of associate counsel, Molly R.
Dugan, to whom this case was primarily assigned. I hereby incorporate
all of Ms. Dugan’s assertions as to the steps she took individually and the
steps we took jointly in representing Mr. McCurdy.
20
Id.
21
Id.
22
DI. 12.
23
Id.
24
Id.
25
D.I. 67, 68.
5
5. The evidence against Mr. McCurdy was extremely strong,
consisting primarily of drugs and cash seized from a storage unit in
McCurdy’s name. Additionally, marijuana was found in the defendant’s
residence. There is a co-defendant in this case by the name of Marisol
Karg.
6. In response to McCurdy’s Motion for Post-Conviction
Relief, counsel would assert the following with regard to ¶ 2.
a. Counsel consulted regularly with co-counsel Dugan
in preparation for trial. There were no witnesses to investigate
except for Ms. Karg and, as noted by Ms. Dugan in her affidavit,
that witness’s potential testimony was explored in detail and in
fact Karg did appear and testify at the trial in a fashion favorable
to McCurdy;
b. Counsel understood all of the details of the
defendant’s case and at no time pressured the defendant to accept
a plea deal. Counsel admits that he presented the defendant with
a proposed Plea Agreement and recommended strongly that the
defendant accept it given the strength of the State’s evidence, the
likelihood that the defendant would be convicted, and the
improbability of the story that the defendant provided to counsel;
c. Counsel at no time removed himself from the case but
it was decided that the case would be better tried by Ms. Dugan
for reasons that can be articulated in more detail when there is a
hearing on this matter. As noted above, counsel continued to
discuss the case with Ms. Dugan and also discussed with her on
many occasions trial strategy;
d. Acting on the defendant’s behalf, Ms. Dugan and
counsel prepared and filed a Motion to Suppress Evidence. The
claim that there was little support or oversight is inaccurate;
e. It is true that Ms. Dugan is and was less experienced
than counsel in areas of criminal defense. However, counsel felt
that the case would be better handled at trial by Ms. Dugan in that
the case was not unduly complicated. Counsel felt that she would
better be able to make an effective presentation in front of a jury.
However, as noted above, counsel stayed involved in the process
throughout and supervised Ms. Dugan’s activities and remained
in regular contact with her. Counsel and Ms. Dugan regularly
discussed trial strategy.
f. There was no issue with respect to the photographs
that were used by the State in evidence and there was no reason
6
to subpoena the person who took the photographs. Counsel is
unclear as to what significance the defendant is attributing to the
photographs;
g. Counsel never accused the defendant of lying but
rather pointed out to him the improbabilities of the story that he
provided to the defense with respect to the case;
h. There is no understanding by counsel as to how the
defendant’s right to confront witnesses was denied. As noted
above, counsel has no idea what the defendant means when he
talks about the crucial nature of the identity of the individual who
took the photographs in the case. Again, there is no Crawford
issue in this matter;
i. The co-defendant in this case did admit to the
commission of the crime and did in fact testify in front of the jury;
j. The issue regarding the person who took the
photographs is discussed above. The photographs spoke for
themselves. The witness who took the photographs was not in a
position to testify one way or the other as to whether or not the
marijuana depicted in the photographs was possessed by the
defendant and the photographs were properly authenticated;
k. Counsel reviewed the work of Ms. Dugan, both with
respect to the suppression issues and also with respect to the trial.
Counsel was at all times satisfied that Ms. Dugan was more than
capable of handling this case and she, in fact, provided effective
representation on behalf of Mr. McCurdy. The fact that she had
not been a member of the Bar for much longer than one year did
not in any way prejudice the defendant given the excellent job
which she did on his behalf at trial; and
l. Ms. Dugan and counsel had tried several felony cases
jointly prior to this one.
AFFIDAVIT OF DEFENSE COUNSEL
I, Molly R. Dugan, having been duly sworn, do hereby state
as follows:
1. I am a criminal defense attorney practicing in the State of
Delaware and a licensed member of the Delaware Bar since January
2022.
7
2. In that capacity, Eugene J. Maurer, Jr. and I were retained to
represent John McCurdy in the above-captioned matter in September
2022.
3. McCurdy was indicted in November 2022 on charges of
Drug Dealing, Possession of Marijuana (Felony) and Conspiracy Second
Degree, along with co-defendant Marisol Karg.
4. By way of background, an anonymous tip was submitted to
the New Castle County Police Department (“NCCPD”) in August 2022
which alleged McCurdy was a drug dealer and that he kept the drugs
hidden in a storage unit as well as in his residence. The tipster provided
corroborated information about McCurdy, including the make and model
of his vehicle and the addresses of his residence and storage unit. The
anonymous tip also included two photos – one of which purported to be
McCurdy standing inside of the unit and the second photo of a plastic
storage bin seemingly containing a vacuum-sealed bag of marijuana.
NCCPD subsequently conducted an open-air K9 sniff at McCurdy’s
storage unit facility. The K-9 indicated the presence of illegal drugs
within McCurdy’s storage unit. NCCPD obtained and executed a search
warrant for the unit, during which they found approximately 1,000 grams
of marijuana and $15,000 in cash and money orders. NCCPD also
obtained a search warrant for the body of McCurdy. When officers
arrived at McCurdy's residence to execute same, they met Marisol Karg,
who was exiting the residence. NCCPD officers smelled a strong odor of
marijuana emanating from Karg’s person. Officers searched the bag that
Karg was carrying and found an additional 1,161 grams of marijuana.
During execution of a warrant to search McCurdy’s residence, officers
found another 44 grams of marijuana in his kitchen, as well as vacuum-
sealed bags and other paraphernalia. Both Karg and McCurdy were
charged with Drug Dealing, Possession of Marijuana and Conspiracy
Second Degree.
5. McCurdy’s arraignment in the Superior Court took place on
December 9, 2022. On January 30, 2023, defense counsel sent McCurdy
via letter a summary of all discovery materials. First Case Review
occurred on February 21, 2023. At or about the time of the First Case
Review, defense counsel communicated a Plea Offer to McCurdy that
was extended by the State. The State offered for McCurdy to plead guilty
to Drug Dealing Marijuana (Class D Felony) and Conspiracy Second
Degree with a recommendation of probation. McCurdy declined the plea
offer at that time. Shortly after, defense counsel sent McCurdy a letter
8
asking him to consider accepting the State’s plea offer given the evidence
against him.
6. Defense counsel (to include Mr. Maurer) drafted and filed a
Motion to Suppress Evidence on March 29, 2023. The Motion alleged
that neither the anonymous tip submitted to NCCPD nor the K9 sniff
established probable cause to search McCurdy’s storage unit.
6. On July 28, 2023, a Suppression Hearing took place before
Judge Danielle Brennan, at which time undersigned counsel represented
McCurdy. The Court orally denied the Motion at the conclusion of the
hearing.
7. The Final Case Review occurred on July 31, 2023, at which
time McCurdy engaged in a plea rejection colloquy with the Court.
8. On August 2, 2023, undersigned counsel received multiple
emails from McCurdy’s co-defendant Ms. Karg, who stated that all of
the marijuana found at McCurdy’s storage unit and residence belonged
to her. Following a discussion with Karg’s defense attorney, counsel
forwarded the emails to the State.
9. Given this late development, defense counsel (to include Mr.
Maurer) filed a Motion to Sever Defendants on August 2, 2023 and a
preemptive Motion to Withdraw as Counsel on August 25, 2023.
10. The case proceeded to trial on February 19, 2024 and lasted
for two days. Prior to the start of trial, the Court granted the Motion to
Sever Defendants given Karg’s assertions to counsel. The State elected
to have McCurdy tried first. Undersigned counsel, with the guidance of
Mr. Maurer, represented McCurdy at trial. In addition to the
aforementioned evidence, the State presented an expert in drug dealing
who testified that the manner in which the marijuana was stored was
indicative of drug dealing.26 Counsel cross-examined the expert on these
points as well as on his level of expertise. Counsel objected to numerous
items of evidence, including body-worn camera footage and photos of
items taken from McCurdy’s residence. After the conclusion of the
State’s case-in-chief, Karg testified for the defense. Consistent with her
emails to undersigned counsel several months prior to trial, Karg testified
that the marijuana was hers and McCurdy had no knowledge of it.
McCurdy was ultimately convicted on all charges.
11. On April 1, 2024, defense counsel submitted a Sentencing
Memorandum to the Court which outlined McCurdy’s background and
26
The State did not make mention of the anonymous tipster at trial, instead beginning at their execution of
the warrant for McCurdy’s storage unit.
9
requested that the Court sentence him to probation. Undersigned counsel
represented McCurdy at sentencing on April 12, 2024, at which time the
State requested Level IV/V time followed by probation. The Court
sentenced McCurdy to probation and other conditions.
12. With respect to McCurdy’s various claims of ineffective
assistance of counsel, counsel responds as follows:
Subsection A – Ineffective Assistance:
Ground One: McCurdy fails to identify any specific evidence or
witnesses that counsel neglected to investigate. Although undersigned
counsel is not mentioned, both undersigned and Mr. Maurer spent hours
over the course of the case reviewing the evidence and investigating any
potential defenses. There were no eyewitnesses to illegal drug activity
that could have been identified except Karg, who was also charged with
Drug Dealing and represented by other defense counsel.
Ground Two: Although undersigned counsel is not mentioned,
counsel was with Mr. Maurer during most, if not all, meetings with
McCurdy throughout the pendency of the case. At no time in counsel’s
recollection did Mr. Maurer fail to recall details of McCurdy’s case. Even
if he had, it did not render his performance deficient or prejudice
McCurdy. As to the State’s Plea Offer, undersigned and Mr. Maurer
advised McCurdy both in person and in writing to strongly consider
accepting it given the evidence against him. Regardless, McCurdy
knowingly and voluntarily rejected the Plea Offer before the Court at the
Final Case Review.
Ground Three: Counsel acknowledges having only been a member
of the Delaware Bar for approximately one year prior to trial. It was not,
however, counsel’s first jury trial. Counsel represented defendants in
several jury and non-jury trials in Superior Court and Family Court prior
to McCurdy’s February 2024 trial, including a two-week Attempted
Murder trial in December 2023. McCurdy is correct to point out that
counsel filed a Motion to Suppress on his behalf, as was stated above.
Counsel also filed the Motion to Sever Defendants on the same date that
she received the previously mentioned emails from Ms. Karg.
Nonetheless, counsel had the full support and oversight of Mr. Maurer
throughout the case, which included during trial and in the filing of all
pre-trial Motions.
Ground Four: McCurdy fails to identify what key witness(es)
counsel failed to identify or subpoena for trial. Counsel believes that
McCurdy may be referring to the individual who submitted photos to
NCCPD of McCurdy’s storage unit. The photos were submitted
10
anonymously, which counsel confirmed with the State. Therefore, it is
counsel’s understanding neither NCCPD nor the Attorney General’s
Office could identify (or subpoena) that individual.
Ground Five: Although undersigned counsel is not mentioned,
McCurdy fails to assert when counsel would have accused McCurdy of
lying and what “critical evidence” was of issue. Counsel does not recall
herself or Mr. Maurer having accused McCurdy of lying about any aspect
of the case. In addition, McCurdy fails to state what exculpatory
materials that counsel failed to compel the State to turn over.
Subsection B – Denial of Right to Confront Witnesses:
Ground Six: See Ground Four above.
STANDARD OF REVIEW
I first address the four procedural bars of Rule 61.27 If a procedural bar exists,
as a general rule I will not address the merits of the postconviction claim.28 A Rule
61 Motion can be barred for time limitations, successive motions, failure to raise
claims below, or former adjudication.29
First, a motion for postconviction relief exceeds time limitations if it is filed
more than one year after the conviction becomes final.30 The Supreme Court issued
its mandate of Mc Curdy’s direct appeal on March 25, 2025. His postconviction
petition is timely.
27
Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del. 1990)).
28
Bradley v. State, 135 A.3d 748 (Del. 2016); State v. Page, 2009 WL 1141738, at*13 (Del. Super. April 28,
2009), aff’d 994 A.2d 745 (Del. 2010).
29
Super. Ct. Crim. R. 61(i).
30
Super. Ct. Crim. R. 61(i)(1).
11
Second, second or subsequent motions for postconviction relief are not permitted
unless certain conditions are satisfied.31 Since this is McCurdy’s first petition for
postconviction relief, consideration of the Motion is not barred by this provision.
Third, grounds for relief “not asserted in the proceedings leading to the judgment
of conviction”32 or on direct appeal are procedurally barred. This procedural bar also
applies “even when ineffective assistance of counsel is asserted, unless the
defendant successfully demonstrates that counsel was in fact ineffective and
that ineffectiveness prejudiced his rights."33 It is well-settled Delaware law that, as
collateral claims, ineffective assistance of counsel claims are properly raised for the
first time in postconviction proceedings.34 Most of McCurdy’s claims are grounded in
ineffective assistance of counsel. Thus, those claims are not barred by this provision.
The ineffective assistance of counsel claims are assessed under the two-part
standard established in Strickland v. Washington,35 as applied in Delaware.36 Under
Strickland, McCurdy must show that (1) Trial Counsel’s representation “fell below an
objective standard of reasonableness” (the “performance prong”); and (2) the
31
Super. Ct. Crim. R. 61(i)(2).
32
Super. Ct. Crim. R. 61(i)(3).
33
Wilson v. State, 900 A.2d 102 (Table), 2006 WL 1291369, at *2 (Del. May 9, 2006) (citing Gattis
v. State, 697 A.2d 1174 (Del. 1997)).
34
State v. Schofield, 2019 WL 103862, at *2 (Del. Super. January 3, 2019); Thelemarque v. State, 2016 WL
556631, at *3 (Del. Feb. 11, 2016) (“[T]his Court will not review claims of ineffective assistance of counsel
for the first time on direct appeal.”); Watson v. State, 2013 WL 5745708, at *2 (Del. Oct. 21, 2013) (“It is
well-settled that this Court will not consider a claim of ineffective assistance that is raised for the first time
in a direct appeal.”).
35
466 U.S. 668 (1984).
36
Albury v. State, 551 A.2d 53 (Del. 1988).
12
“deficient performance prejudiced [his] defense” (the “prejudice prong”).37 In
considering the performance prong, the United States Supreme Court was mindful that
“[S]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.”38 Strickland requires an objective
analysis, making every effort “to eliminate the distorting effects of hindsight” and to
“indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.”39 “[S]trategic choices about which lines of
defense to pursue are owed deference commensurate with the reasonableness of the
professional judgments on which they are based.”40
As to the performance prong, McCurdy must demonstrate that Trial Counsel’s
alleged failures were unreasonable decisions.
As to the prejudice prong, McCurdy must demonstrate that there exists a
reasonable probability that, but for Trial Counsel’s errors, the outcome of the trial
would have been different.41 Even if Trial Counsel’s performance was professionally
unreasonable, it would not warrant setting aside the judgment of conviction if the error
37
Strickland, 466 U.S. at 687.
38
Id. at 690.
39
Id. at 689.
40
Id. at 681.
41
Albury, at 687; Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003); Wright v. State, 671 A.2d
1353, 1356 (Del. 1996).
13
had no effect on the judgment.42 A showing of prejudice “requires more than a
showing of theoretical possibility that the outcome was affected.”43
Strickland teaches that there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in a particular order, or even to address both
prongs of the inquiry if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant because of the alleged
deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, that course should be followed.44 In every case, the court
should be concerned with whether, despite the strong presumption of reliability, the
result of the particular proceeding is unreliable because of a breakdown in the
adversarial process that our system counts on to produce just results.45
The Constitution does not require that the performance of Trial and
Appellate Counsel be error free to satisfy the effectiveness standard.46 The
performance inquiry turns on whether counsel's assistance was reasonable under all
42
Strickland, at 691.
43
Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992).
44
Strickland, at 697.
45
Id. at 696.
46
McMann v. Richardson, 397 U.S. 759, 770-71 (1970).
14
the circumstances.47 Evidence of isolated poor strategy, inexperience, or bad tactics
does not necessarily establish ineffective assistance.48
ANALYSIS
I turn first the claims of ineffective assistance of counsel. The claims
of ineffectiveness are as follows:
• Attorney Maurer failed to adequately prepare for trial and
neglected key responsibilities related to investigating
evidence and witnesses.
• He consistently forgot the details of Defendant’s case and
pressured the Defendant to take a plea deal that was not in
the Defendant’s best interest.
• Mr. Maurer later attempted to remove himself from the
case after the Defendant declined the plea deal.
• Mr. Maurer left the case in the hands of a less experienced
associate, Ms. Molly Dugan, who attempted to suppress
evidence and file motions late in the process, with little
support or oversight
• Mr. Maurer failed to identify the subpoena the key witness
involved in takin photographs used by the State as
evidence.
• He also accused the Defendant of lying about critical
evidence and failed to compel the State to turn over
exculpatory materials.
Having reviewed the affidavits of counsel and the record I am satisfied that
trial counsel adequately investigated the case and prepared for trial. The primary
issue at trial was the owner of the drugs found in a storage unit rented by the
defendant and in his house. Counsel presented the testimony of the codefendant who
47
Wong v. Belmontes, 558 U.S. 15, 17 (2009); Strickland, 466 U.S. at 688.
48
Bellmore v. State, 602 N.E. 2d 111, 123 (Ind. 1992) rehearing den. 1993.
15
took responsibility for ownership of the drugs. That the jury decided the issue
differently was not as a result of counsel’s performance. I find no merit to the factual
allegation that Mr. Maurer forgot the details of Defendant’s case. As to the
allegation that Maurer pressured the defendant to take a plea deal I find no merit to
this allegation in light of Maurer’s affidavit and even if I discounted Maurer’s
testimony on this point any failure on the part of Maurer resulted in no prejudice to
McCurdy because he did not accept the plea.
I agree that Ms. Dugan was less experienced that Mr. Maurer. However, less
experienced does not equate with ineffectiveness. A review of the record leads to a
conclusion that Ms. Dugan mounted the defense that needed to be mounted. I have
reviewed the suppression motion and the hearing and I conclude that it was more
than adequate and covered the points and arguments that needed to be made.
McCurdy asserts the motion was filed late, which is not supported by the record.
The motion was considered by the Court and ultimately affirmed by the Supreme
Court on appeal. Again the fact that the Court denied the suppression motion does
not mean that the motion was not well presented which it was.
Similarly, this Court’s review of the entire trial record leads to a conclusion
that Ms. Dugan mounted the defenses that needed to be made. There was no
ineffectiveness in her trial presentation.
16
McCurdy claims that counsel failed to identify or subpoena a key witness who
took the photos that were utilized to obtain the search warrant and as such his right
under the confrontation clause were violated. The confrontation clause is only
implicated where the testimonial statements are introduced against the defendant.49
What McCurdy complaints about is that the photographs taken and used to support
the affidavit of probable cause to search the storage unit were used against him at
trial.50 In fact the State attempted to enter the informant’s photographs, the
defendant objected and the Court sustained the objection.51 The photographs taken
by the informant were not admitted at trial.
In Flowers v. State the Delaware Supreme Court set forth the four contexts in
which the issue of disclosing an informant’s identity typically arises: (1) the informer
is used merely to establish probably cause for a search; (2) the informer witnesses the
criminal act; (3) the informer participated but is not a party to the illegal transaction
and (4) the informer is an actual party to the illegal transaction. The Supreme Court
has made it clear that under RULES OF EVIDENCE 509 the identify of an informant is
protected in the first Flowers scenario.52 The first Flowers scenario is exactly what
occurred in the instant case. The informant was used merely to establish that the
49
Smith v. Arizona, 602 U.S. 779 (2024).
50
What was admitted into evidence as photographs were the photos taken by law enforcement at the time of
the execution of the warrant. Trial transcript 2/21/24 pages 46, 49.
51
Trial transcript 9/22/24 pages 57-59 and 93-95.
52
Cooper v. State, 2011 WL 6039613 (Del. 2011); Burcher v. State, 906 A.2d 798, 802-803 (Del. 2006).
17
informant was not a participant in the criminal act nor did he witness it. The informant
who took the photos was not required to be disclosed by the police. So, any failure, if
any, to investigate the identity of the photographer would not have prejudiced the
defendant because the State, under Flowers, would not have had to disclose the
identity of the informant photographer. As such not only was there no ineffectiveness
but there was no prejudice even if there was ineffectiveness.
Defendant next complains that the State violated Brady v. Maryland, 373 U.S.
83 (1963) in two ways. First, Defendant again points to the photographs taken by the
confidential informant as the basis for the first Brady claim. What Defendant fails to
appreciate is that these photos were made available to the Defendant and were
referenced and viewed by the Court as part of the suppression hearing. The
photographs were marked as exhibits at the suppression hearing.53 There is no basis
to argue that the state withheld any evidence related to the photographs used to
establish probable cause. To the extent defendant is focused on the identity of the
informant the State, as discussed above, was under no obligation to turn over the
informant’s identity.
Defendant next argues that the State failed to produce information related to the
codefendant. According to the Defendant, the State failed to disclose an email and
voicemail from the codefendant where she implicated herself as the owner and/or
53
See Suppression Hearing transcript pages.
18
possessor of the drugs. The problem with this argument is that defense actually had
the email in question and used it in its cross-examination of Officer Hunt. The defense
also called Karg as a witness and she admitted to sending the email to Detective Hunt
and that the email said that she, rather than McCurdy, was the owner of the marijuana
and that she stored the drug in both the storage shed and McCurdy’s apartment without
his knowledge. The email was available to the defendant prior to trial and was in fact
used by the defendant to support his theory of the case. On this record there is no
Brady violation.54
For the stated reasons, Defendant’s request for Postconviction Relief is
DENIED. As the Court has denied the request for relief, the Court also DENIES
Defendant’s request for the appointment of counsel.
For the reasons outlined above, McCurdy’s instant motion is DENIED.
IT IS SO ORDERED.
/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge
cc: Original to the Prothonotary
54
Defendant also references a voice mail without any other identifying information. On this basis alone
Defendant’s motion is still denied. Even if Karg left a voice mail message for the detective and the State
failed to disclose that information there is no prejudice to the defendant. Even without the voice mail the
Defendant was still able to have Karg testify that it was she, not McCurdy who owned or possessed the
drug. The addition of a voice mail would not have changed the weight or the credibility of the Defendant’s
evidence.
19
Case Information
- Court
- Del. Super. Ct.
- Decision Date
- October 22, 2025
- Status
- Precedential