Opinion
ID#85000061DI
09-21-2016
STATE OF DELAWARE v. COY E. BAILEY, Defendant
Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State. Natalie S. Woloshin, Esquire, Woloshin, Lynch, & Natalie, P.A., Wilmington, Delaware, Attorney for Defendant as to the "ballistic expert" claim. Coy E. Bailey, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se as to all other claims.
Upon Commissioner's Report and Recommendation that Defendant's Motion for Postconviction Relief Be Denied. REPORT AND RECOMMENDATION ACCEPTED. ORDER Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State. Natalie S. Woloshin, Esquire, Woloshin, Lynch, & Natalie, P.A., Wilmington, Delaware, Attorney for Defendant as to the "ballistic expert" claim. Coy E. Bailey, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se as to all other claims. COOCH, R.J.
This 21st day of September 2016, upon consideration of Defendant's second Motion for Postconviction Relief, it appears to the Court that:
1. On or about April 12, 1985, after four trials, Coy E. Bailey ("Defendant") was convicted of one count of First Degree Murder and one count of Possession of a Firearm During the Commission
of a Felony. The Delaware Supreme Court affirmed Bailey's conviction on direct appeal. On October 6, 1994, Defendant filed his first Motion for Postconviction Relief. This Court denied the motion on the basis that it was procedurally barred by the time limitation set forth in Superior Court Criminal Rule 61(i)(1).
2. On March 15, 2013, Defendant filed this, his second, Motion for Postconviction Relief pro se. On June 18, 2013, the previously assigned judge in this Court denied all of Defendant's claims as untimely with the exception of one issue related to Defendant's ballistics expert. Finding good cause for the appointment of counsel, the Court concluded that counsel would be appointed with respect to only the ballistics expert issue. The State then filed a Motion for Judicial Recusal seeking that judge's recusal from the case on the basis that the judge was previously a lawyer representing the State in criminal and civil actions against Defendant. The Court granted the motion, reinstated all of Defendant's previous claims, and left the decision to appoint counsel with respect to Defendant's ballistics expert issue in place.
3. Following the recusal of the previous judge, the State sought to have the June 18, 2013 order vacated in its entirety, including the decision to appoint counsel, in order for each of Defendant's claims to be considered freshly. On June 18, 2014, then-President Judge James T. Vaughn, Jr. issued an order providing that the previously assigned judge's decision to leave the appointment of counsel in place would stand, and that all other claims would be reinstated. The Court then appointed Natalie S. Woloshin, Esquire, as counsel for Defendant on the ballistics expert issue.
4. This Motion for Postconviction Relief was referred to Court Commissioner Lynne M. Parker for proposed findings and
recommendations pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62(a)(5). The Court granted Defendant the opportunity to amend his Rule 61 motion regarding the claims for which he did not have appointed counsel. Defendant requested the court produce documents he thought would be helpful to amending his motion. On March 4, 2015, the Court provided Defendant with the requested documents. Dissatisfied with the materials produced, Defendant advised the Court that he was still awaiting production of additional documents. The Court responded to Defendant, stating that all materials had been produced, and that he would be held to an amendment deadline of May 8, 2015. Defendant filed his Amended Motion for Postconviction Relief on April 23, 2015.
5. Of the multiple claims that Defendant makes in this Amended Motion for Postconviction Relief, the Commissioner found only one claim warranted discussion of the merits. The Commissioner found that "[w]ith one exception, all the issues raised herein were ripe for summary dismissal on the basis that they were untimely, previously adjudicated, or otherwise procedurally barred."
6. The Commissioner discussed in great detail Defendant's claim that his trial counsel was ineffective for failing to call Defendant's ballistics expert, Dr. William J. Bruchey, as a witness. At the time of trial, Defendant's defense was that Michael Sponaugle, a witness to the crime, shot and killed the victim. Defendant hired Dr. Bruchey to opine as a ballistics expert on whether Defendant or Michael Sponaugle shot the defendant based on his investigation of the crime scene and victim. At the time of the trial, Dr. Bruchey's opinion was that his results were inconclusive. Dr. Bruchey noted, "'Data does not contradict, but is to [sic] ambiguous to support Bailey [sic] story.'" In light of this unhelpful opinion, Defendant chose not to call Dr. Bruchey as an expert witness during any of Defendant's four trials.
7. This case then took a strange turn. On November 26, 1999, fourteen years after Defendant's conviction, Dr. Bruchey came to a conclusion apparently favorable to Defendant. On August 1, 1997, Paul F. Wieland, a friend of Defendant, wrote Dr. Bruchey. In response, Dr. Bruchey wrote a report stating his opinion had changed, and that he now was of the opinion that Defendant's contention that Sponaugle shot and killed the victim was accurate. Additionally, in his report, Dr. Bruchey stated that he had that opinion at the time of trial in 1985.
8. On November 20, 2015, the Commissioner conducted an evidentiary hearing. At the hearing, Dr. Bruchey stated that his 1999 report was inaccurate as to whether he held the reported opinion at the time of trial, and that his opinion at the time of trial was inconclusive. However, Dr. Bruchey stated that after reevaluating Defendant's account of what happened, it was now his opinion that Defendant's version of the event was accurate, and that Sponaugle was the more likely shooter. Additionally, at the hearing, Defendant's trial counsel testified that if Dr. Bruchey had
been able to provide a favorable report, then he would have called Dr. Bruchey as an expert witness. But, in the absence of a report, Defendant's trial counsel determined that Dr. Bruchey's testimony would not be helpful to Defendant.
9. Analyzing Defendant's claim under the Strickland v. Washington standard, the Commissioner found that Defendant's ineffective assistance of counsel claim was without merit. The Commissioner stated that since "Dr. Bruchey's testimony would not have been helpful to the defense at the time of trial in 1985, Defendant's trial counsel was not ineffective for not calling him to testify at trial." Additionally, the Commissioner's report notes that Defendant chose not to call Dr. Bruchey in any of his four trials, seeming to indicate that Defendant recognized Dr. Bruchey's testimony was unhelpful at each of his four trials. Defendant now appeals through counsel the Commissioner's findings regarding the ballistics expert pursuant to Superior Court Criminal Rule 62(a)(5)(ii). Defendant has not appealed the Commissioner's findings that his remaining claims are procedurally barred.
10. On appeal, Defendant claims that the Commissioner's findings were erroneous in finding that Defendant's trial counsel was not ineffective for failing to call Dr. Bruchey as an expert witness. Defendant contends that Dr. Bruchey's testimony would have confirmed his contention that Sponaugle was the shooter, and that his trial counsel's failure to call Dr. Bruchey as a witness prejudiced the outcome of his trial. In response, the State contends that the Commissioner correctly determined that Defendant's trial counsel was not ineffective because Dr. Bruchey's opinion at the time of trial was inconclusive, which would not have been helpful to Defendant at the time of his trial.
11. "This Court 'shall make a de novo determination' of any findings of fact or recommendations to which an objection is made. This Court may accept, reject, or modify in whole or in part, the commissioner's findings of fact and recommendations." Having conducted a thorough de novo review of the record, this Court accepts the Commissioner's well-reasoned recommendations and findings of fact. It is apparent that Defendant's trial counsel was not ineffective at the time of trial for failing to call Dr. Bruchey as an expert witness, since Dr. Bruchey's opinion was inconclusive at the time of trial.
12. This finding is supported by inconsistencies in Dr. Bruchey's testimony at the evidentiary hearing. At the evidentiary hearing, Dr. Bruchey and Defendant's counsel had the following exchange relating to Dr. Bruchey's findings after visiting the crime scene in 1985 and after considering a letter from Defendant detailing Defendant's version of the events:
Q. Do you recall discussing with Mr. Figliola what your opinions were after you had reviewed the materials and had visited the scene?
A. I don't - I believe it's pretty - my discussions would have been, and I don't have a record of what they were, it would have been that I pretty much had agreed with the documentation I had gotten from Mr. Bailey in terms of the events that occurred.
Q. So, your assessment was that Mr. Bailey's version of events was more consistent, or was more consistent with the evidence in this scene -
A. Yes.
Q. - that you had visited?
A. Yes.
Q. And you believe that you had relayed that information to Mr. Figliola at some point after you visited the scene?
A. Yes, ma'am.
Upon further direct examination, Dr. Bruchey stated that his findings in 1999 were the same as his findings in 1985:
Q. And your analysis was that using [the handwritten notes taken after visiting the crime scene in 1985] . . . 'The simple geometric representation of the events supports Mr. Bailey's contention that Mr. Sponaugle's location and position was the more likely scenario.'
A. Yes.
Q. And that was - that was your position in 1999; correct?
A. Yes, ma'am.
Q. And was that your position in 1985?
A. Yes, ma'am.
13. However, when the State cross-examined Dr. Bruchey, he gave contrary testimony regarding the consistency between his conclusions in 1985 and 1999:
Q. Dr. Bruchey, those are the notes that you prepared contemporaneously when you did the crime scene examination in 1985; is that correct?
A. Yes, sir.
Q. And you recall making those notes; is that right?
A. They're in my handwriting.
Q. And, then, you, at some later point, and you have testified that it was by phone, contacted Mr. Figliola and reported back your conclusions and findings?
A. I'm sure I did.
Q. And were the conclusions and findings that you told Mr. Figliola had been the same conclusions that you came to in your notes?
A. I believe so.
Q. So, in your notes you say: 'The ultimate conclusion is no conclusion; i.e., assuming one scenario, the bullet course was altered at impact, it would have been deflected upward. Or, assuming scenario one, the head was raised above horizontal eight-tenths to 1.6 inches."
A. That's what it says, yes.
Q. So, the conclusion at that point was no conclusion. And you further go on to explain that in the next paragraph, and you say: "Data does not contradict but is to [sic] ambiguous to support Bailey's story."
A. Based at that point in time, I would assume.
Therefore, for the foregoing reasons, the Commissioner's Report, including its Recommendation that Defendant's Second Motion for Postconviction Relief be denied in its entirety, is ACCEPTED by the Court.
Upon reviewing Dr. Bruchey's testimony at the evidentiary hearing, it appears that he did not have an opinion favorable to Defendant at his 1985 trial. Although Dr. Bruchey initially testified that he had a favorable opinion in 1985, the State successfully established that Dr. Bruchey's 1985 opinion was written in his handwritten notes, and that the opinion was inconclusive. Additionally, in coming to his new opinion, Dr. Bruchey did not revisit the crime scene or review any new information that was not previously available to him. Accordingly, Defendant's trial counsel was not ineffective when he did not call Dr. Bruchey as an expert witness at Defendant's 1985 trial.
D.I. 116. The April 12, 1985 conviction was a product of the Defendant's fourth trial. Defendant's first trial took place in 1981, but was reversed and remanded by the Delaware Supreme Court on direct appeal. Bailey v. State, 440 A.2d 997 (Del. 1982). Defendant had a second trial in 1983 which resulted in a mistrial. Defendant's third trial in 1984 also resulted in a mistrial when the jury could not reach a unanimous verdict.
Bailey v. State, 521 A.2d 1069 (Del. 1987).
State v. Bailey, 1994 WL 762666, at *1 (Del. Super. Dec. 13, 1994).
State v. Bailey, 1994 WL 762666, at *1 (Del. Super. Dec. 13, 1994).
D.I. 185.
State v. Bailey, 2016 WL 154824, at *5 (Del. Super. Jan. 7, 2016).
Id.
Id. at *9.
Id. (quoting Defendant's Exhibit 3 admitted at the November 20, 2015 Evidentiary Hearing).
Defendant's Evidentiary Hearing Exhibit 1, Tab 21, admitted at the Evidentiary Hearing held on November 20, 2015. Wieland's relationship with Defendant and his motivation for contacting Dr. Bruchey is unclear. At the evidentiary hearing, the only testimony to establish Mr. Wieland's identity was testimony from Defendant's trial counsel, Anthony Figliola, Esquire. In his testimony at the evidentiary hearing, the following exchanged occurred:
MR. VELLA: And, first, just so we have a little bit of a clear understanding, who is Paul Wieland?Evidentiary Hearing held on November 20, 2015, at 43. Dr. Bruchey also had communications with Wieland beyond the August 1, 1997 letter and November 26, 1999 response. Dr. Bruchey stated at the evidentiary hearing that he and Wieland had spoken on the phone on more than one occasion. Evidentiary Hearing held on November 20, 2015, at 76. However, Dr. Bruchey mentioned neither how Wieland represented his relationship with Defendant to him, nor whether Wieland specified a motivation for seeking Dr. Bruchey's reconsideration of the matter.
MR. FIGLIOLA: I have no idea who he was. [Wieland] had called, said he was a friend of Mr. Bailey, and he was trying to help him get out of jail. . . He also . . . called me numerous times, eight or nine times, on the telephone; threatened to take me to court if I didn't help. And, then, later on asked me what it would take to get me to change my story.
State v. Bailey, 2016 WL 154824, at *9 (Del. Super. Jan. 7, 2016).
State v. Bailey, 2016 WL 154824, at *10 (Del. Super. Jan. 7, 2016).
Id.
Id. at *7.
Although a deadline was scheduled for Defendant's Reply, Defendant's appointed counsel elected not to file a Reply to the State's Response.
Notably, Defendant does not argue that a new trial is warranted based on Dr. Bruchey's new opinion.
State v. Johnson, 2011 WL 1416377, at *2 (Del. Super. Ct. Apr. 7, 2011).
Evidentiary Hearing held on November 20, 2015, at 71-73.
Evidentiary Hearing held on November 20, 2015, at 80-81.
Evidentiary Hearing held on November 20, 2015, at 96-98. --------
IT IS SO ORDERED.
/s/_________
Richard R. Cooch, R.J. oc: Prothonotary
cc: Investigative Services
Anthony A. Figliola, Jr., Esquire