Opinion
Cr.A. No. IN80-07-0858R3, IN80-07-0857R3 IN80-07-0856R3, IN80-07-0855R3
Date Submitted: August 23, 2002
Date Decided: October 28, 2002
Upon Defendant's Motion for Postconviction DNA Testing: GRANTED.
ORDER
Upon review of Movant Tyrone Brookins ("Defendant")'s Motion for Postconviction Relief and the record, it appears to the Court that:
1. Defendant filed a Motion for Postconviction DNA Testing pursuant to 11 Del. C. § 4504 on August 23, 2002.
2. On May 29, 1981, Defendant was convicted by a jury of Murder in the first degree, Possession of a Deadly Weapon During the Commission of a Felony, Burglary 2nd, and Conspiracy 1st. On June 12, 1981, Defendant was sentenced to life in prison without the possibility of parole for the Murder in the first degree charge (IN80-07-0855), to five years imprisonment for the Possession of a Deadly Weapon During the Commission of a Felony charge (IN80-07-0857), to five years imprisonment for the Burglary 2nd charge (IN80-07-0858), and to five years imprisonment for the Conspiracy charge (IN80-07-0856). Defendant's convictions were affirmed on direct appeal to the Delaware Supreme Court.
See generally, Lampkins and Brookins v. State, Del. Supr., 465 A.2d 785 (1983).
3. The Delaware Supreme Court has held that in reviewing motions for postconviction relief, this Court must first determine whether a defendant's claims are procedurally barred prior to considering them on their merits. Section 4 of 72 Del. Laws, c. 320 provides that: ". . . Any motion filed pursuant to the provisions of § 4504(a) of Title 11 as promulgated by § 3 of this act by any person whose judgement of conviction is final prior to September 1, 2000, may not be filed after September 1, 2002." Defendant's motion was filed on August 23, 2002 which is in compliance with the time limitations provided by 11 Del. C. § 4504. The court has determined that there are no procedural bars to Defendant's claim. Therefore, the court will address the merits of Defendant's claim.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Flamer v. State, 585 A.2d 736, 747 (Del. 1990).
4. Pursuant to 11 Del. C. § 4504(a), a motion for DNA testing may be granted if: (1) the testing is to be performed on evidence secured in relation to the trial which resulted in the conviction; (2) the evidence was not previously subject to testing because the technology for testing was not available at the time of the trial; (3) the movant presents a prima facie case that identity was an issue in the trial; (4) the movant presents a prima facie case that the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been substituted, tampered with, degraded, contaminated, altered or replaced in any material aspect; (5) the requested testing has the scientific potential to produce new, noncumulative evidence materially relevant to the person's assertion of actual innocence; and, (6) the requested testing employs a scientific method which is generally accepted within the relevant scientific community, and which satisfies the pertinent Delaware Rules of Evidence concerning the admission of scientific testimony or evidence. Failure to satisfy any one of the six requirements of § 4504(a) precludes the requested remedy of DNA testing because the statute's requirements are stated in a conjunctive manner.
Id; see also State v. Klosowski, 310 A.2d 656, 657 (1973) (indicating that "[a]nd" is conjunctive, in its commonly accepted meaning, and is not generally used to express an alternative unless it is followed by words which clearly indicate that intent).
5. Based upon the record, it appears that Defendant has meet his burden in this case. Defendant is requesting that the blood collected from a green glass vase, that was secured as evidence in relation to his trial, be subject to DNA testing. The blood in question was previously only subjected to type analysis because DNA testing was not available at the time of Defendant's trial. Identity also appears to have been an issue in this case. The victim was hit from behind with the glass vase and was pronounced dead prior to being afforded the opportunity to identify her assailant. Defendant was found to have a cut on his hand and the State, in closing, suggested that blood from Defendant's cut was transferred to the vase when he picked it up and struck the victim in the back of the head. The blood type analysis testing that was performed found the blood to be the same type as the Defendant and different from the victim's. In addition, no eyewitnesses were present at the time the murder. According to the testimony of a co-defendant, he remained outside the building and did not witness the actual murder. The glass vase has remained in the custody of the New Castle County Prothonotary since Defendant's trial. If DNA testing reveals that the blood on the glass vase is not the Defendant's, it would provide noncumulative evidence that is material to Defendant's claim of innocence. The restriction fragment length polymorphism ("RFLP") analysis of DNA has been deemed reliable and admissible pursuant to 11 Del. C. § 3515. The Delaware statute fails to include other types of DNA testing, however, the court in State v. Crowe, held that DNA testing other than the statutory RFLP method, may be admissible with the requisite showing.
Title 11 Del. C. § 3515(b).
State v. Crowe, 1997, WL 1280 91 (Del.Supr.)
For the above stated reasons, Defendant's motion for post-conviction DNA testing is GRANTED. The costs of testing are to be born by the State through the Office of the Public Defender.
IT IS SO ORDERED.