Opinion
IK94-08-0330
Submitted: May 4, 2000
Decided: August 31, 2000
Upon Consideration of the Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61, DENIED.
John R. Garey, Esq., Attorney for the State. Joseph M. Bernstein, Esq., Attorney for the Defendant.
Upon consideration of the defendant's motion for postconviction relief, the Commissioner's Report and Recommendation, the defendant's appeal from the Commissioner's Report, and the record in this matter, it appears that:
1. On June 29, 1995 the defendant, James A. Chance, Jr., was convicted by a jury of Murder in the Second Degree in the death of Michael Keesser. He was sentenced to 16 years of incarceration, followed by probation. On appeal the Supreme Court of Delaware affirmed his conviction. Three others were also charged with Murder in the Second Degree in connection with Mr. Keesser's death. One, James Bonds, pled guilty to Manslaughter in November 1995. Another, Joshua Holder was convicted of Manslaughter in a separate trial in March 1996. The third, James Mayhall, subsequently pled guilty to Manslaughter.
Chance v. State, Del. Supr., 685 A.2d 351 (1996).
2. The defendant has now filed this motion for postconviction relief. In it he claims that his trial was tainted by perjured testimony from a witness, Helen Cox. He also claims that his trial counsel was ineffective in that counsel failed to consult an expert pathologist on the cause of death, failed to adequately investigate exculpatory witnesses, and failed to object to the jury instruction on accomplice liability. The motion for postconviction relief was referred to the Court Commissioner, Andrea M. Maybee, for proposed findings and recommendations pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62.
3. With regard to the defendant's claim that his trial was tainted by perjured testimony, the Commissioner found that one of the witnesses, Helen Cox, did give false testimony concerning the involvement of another person, Caen Carter, in the assault on Mr. Keesser. The Commissioner concluded, however, that "there is not any reasonable possibility that the jury could have reached a different decision" as to Mr. Chance's guilt. As to the defendant's claims of ineffective assistance of counsel, the Commissioner determined that he had failed to show prejudice. The Commissioner therefore recommended that the motion be denied. A copy of the Commissioner's Report and Recommendation, dated November 15, 1999, is attached hereto.
4. On November 29, 1999 the defendant filed an appeal from the Commissioner's Report and Recommendation. On January 4, 2000 defense counsel wrote to the Court noting that the State had not filed a response to the defendant's appeal from the Commissioner's Report and Recommendation, and requesting oral argument. On January 5, 2000, the State did file its response. Oral argument was held on May 4, 2000.
5. In his appeal, the defendant contends that the Commissioner committed error in two respects: (1) by concluding that the evidence of alleged perjury in the defendant's trial did not establish grounds for a new trial, and (2) by concluding that the defendant did not establish prejudice resulting from trial counsel's failure to object to the jury instructions. The Court has conducted a de novo review and determination of those portions of the Commissioner's Report and Recommendation to which the defendant has taken exception. It is noted that the defendant has not objected to those portions of the Commissioner's Report and Recommendation relating to trial counsels s alleged failure to consult an expert pathologist on the cause of death or adequately investigate exculpatory witnesses. Those two issues, therefore, will not be further addressed.
6. The statement of facts set forth on pages three through 23 of the Commissioner's Report and Recommendation is hereby adopted. By way of elaboration, the victim, Michael Keesser, was beaten and kicked to death during fights which occurred at the end of an hours long birthday party for Paul Lunsford at his residence in or near Dover. The party was attended by numerous young people, most in their late teens or early twenties. Estimates varied, and to some extent people came and went while the party was ongoing, but it would appear that as many as thirty to forty people attended. Most, including the defendant, were drinking heavily. Some were also using marijuana and LSD. As the day progressed, bad blood developed between factions at the party. Eventually a fight broke out in Mr. Lunsford's house. That fight then erupted into a drunken melee which spilled out of the house into the front yard. The trial testimony painted a picture for the jury of numerous young men fighting. There were approximately five separate fights going on outside the house. They were not one-on-one encounters, but group fights which involved numerous young men hitting and kicking on individual victims. Participants moved back and forth among the fights. The location of the individual fights, including the one with Keesser, moved around outside the house. In addition to Michael Keesser being killed, two other victims were knocked unconscious. There was testimony that Mr. Chance, and others, were observed beating or kicking Mr. Keesser. Mr. Chance, according to the evidence, wearing boots, was observed kicking Mr. Keesser repeatedly in the head.
7. As to the issue of alleged perjured testimony, at trial Helen Cox, James Ford, and Paul Lunsford all testified that they saw Chance kick Mr. Keesser in the head repeatedly. Ms. Cox also testified that she saw Christine Lunsford pushing the defendant off Mr. Keesser in an attempt to break it up. Mr. Ford testified that he saw Christine Lunsford standing on the sidewalk yelling at Chance. Paul Lunsford testified that he saw Christine Lunsford near Chance. All three also testified that Paul Lunsford attempted to give Keesser CPR after it was all over. Ms. Cox was asked directly whether she saw Caen Carter involved in any type of face-to-face confrontation with Mr. Keesser, and she said "Not that I know of and I don't know." None of the three testified as to seeing anybody else apart from Chance striking or kicking Keesser. Neither Ford nor Lunsford were specifically asked about any involvement on Carter's part. Lunsford denied hitting anybody outside, in essence thereby denying that he had struck Keesser.
8. In the fall of 1995, after Bonds entered his plea, Ms. Cox reported to one of the investigating police officers that she had additional information that she wanted to make known. In January 1996 she gave a formal statement to police in which she stated that Carter had held Keesser in a headlock and punched him prior to Chance's kicking Keesser in the head. In that statement she also said that she did not see Lunsford or Josh Holder hit Keesser, although they were walking toward Keesser while Carter was hitting him. Later, at the trial of Josh Holder she admitted that she had lied at Chance's trial when she said Carter wasn't involved. Her final version was given at the Rule 61 hearing. There she said that at one point, Carter, Paul Lunsford and Josh Holder were all beating and kicking on Keesser. As they were "doing so, a Duane Baynard got in his car and started to drive off, which given the location of his vehicle had the effect of interrupting the assault on Keesser. After Baynard's car had pulled away, she saw Chance stomping on Keesser's head. She then saw Christine Lunsford pushing Chance off in an attempt to break things up. She further testified that a day or two after the incident she had been in back of Lunsford's house with Lunsford and Carter, that Lunsford and Carter were saying "[i]t wasn't us, it was Chance," that she confronted them that "Chance was out there doing it and so were you guys," and that Lunsford and Carter suggested that maybe she ought to keep quiet about it. In all her accounts, she has insisted that her testimony that Chance kicked Keesser repeatedly is truthful.
The assault on Keesser that night was not one assault but a series of assaults. At certain points Ms. Cox's attention was distracted from the assaults on Keesser by the chaos of all the fights taking place. Therefore, her account is not one, uninterrupted, continuous observation of each assault on Keesser and is, therefore, not necessarily a complete account of the assaults on Keesser. A review of the entire record reveals that this is characteristic of the various eyewitness's observations.
9. Several months after Chance's trial, an Ernest Gallo came forward and reported to the police that Caen Carter had confided to him that he, Carter, had been involved in the assault on Keesser. At the Rule 61 hearing, Gallo testified that Carter told him that Carter had hit Keesser and held him in a headlock, that Holder, Lunsford and Mayhall all struck Keesser, that after the others started hitting and kicking Keesser Carter backed away, that Paul Lunsford was the last one on Keesser, that Christine Lunsford had pulled Paul Lunsford off Keesser, and that Carter didn't see Chance "anywhere around there."
Mr. Gallo gave a statement to the police, signed an affidavit in the Rule 61 proceeding, and testified at the Rule 61 hearing. This account is from his testimony at the Rule 61 hearing. To the extent of any conflict between his statement, his affidavit, and his sworn testimony, the Court accepts the sworn testimony as the most reliable evidence of his account.
10. Based upon Cox's admission in the Holder trial that she had lied in Chance's trial, the statement's and testimony given by Cox subsequent to Chance's trial, and Gallo's account of what he was told by Carter, the defendant argues that his conviction was based upon materially false testimony. He argues that Cox, Lunsford and Ford fabricated their testimony that Chance was kicking Keesser and that Chance is, in fact, completely innocent. His argument is that Lunsford was the one who was actually kicking Keesser in the head and was pulled off by Christine Lunsford. In other words, he argues that Cox, Lunsford and Ford put Chance in Lunsford's place. Secondarily, he argues that Cox, Lunsford and Ford intentionally omitted any reference to Carter and Lunsford in the assault on Keesser, causing Chance's degree of culpability to appear to be much higher at his trial than would be the case if they had not given false testimony.
11. In support of his contention that the Commissioner erred in concluding that the evidence of alleged perjury in the defendant's trial did not establish grounds for a new trial, Mr. Chance cites two specific grounds of alleged error: (1) that the Commissioner erred by concluding that testimony of Ernest Gallo, who did not testify at the defendant's trial, would be inadmissible hearsay at a new trial; and (2) that the "Commissioner incorrectly applied the second prong of the Larrison test in that she entered the province of a jury by weighing and assessing evidence, including the credibility of witnesses. Based upon my review of the entire record, and for the reasons which follow, I conclude that the defendant's motion on the grounds of perjured testimony must be denied even if the two issues just mentioned are resolved in his favor.
Larrison v. United States 24 F.2d 82, 87-88 (7th Cir. 1938). The Larrison test for determining whether a new trial should be granted based upon newly discovered evidence consisting of the discovery that trial testimony was false requires (a) that the court be reasonably well satisfied that the testimony given by a material witness is false, (b) that without it, the jury might have reached a different conclusion, and (c) that the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial. See also Blankenship v. State, Del. Supr., 447 A.2d 428 (1982).
12. In order to grant a new trial based upon alleged perjured testimony, the Court must first be reasonably well satisfied a material witness gave false testimony at the defendant's trial. The Commissioner concluded that Helen Cox gave false testimony at Chance's trial when she denied that Carter was one of Keesser's assailants. That conclusion is well founded and I adopt the Commissioner's finding on that point. However, the defendant's larger argument — that Cox and, by implication, Lunsford, and perhaps Ford lied when they testified that Chance repeatedly kicked Keesser in the head — is not persuasive and must be rejected.
Based upon Ms. Cox's testimony at the Rule 61 hearing, Mr. Lunsford may also have given false testimony at Chance's trial when he denied hitting anyone outside.
13. The defendant's argument that Cox, Lunsford and Ford all lied when they testified that Chance kicked Keesser repeatedly fails to account for significant other evidence that Chance assaulted Keesser. Chance admitted to Brian Funk that he kicked Keesser. His complaint to Funk was that he was not the only one and not the last one to kick Keesser. In his offender interview given as part of his presentence report, Mayhall said that he saw Chance kicking the victim. Bonds, in his offender interview, said that he saw Chance stomping someone in the next door neighbor's yard. There is nothing in the record to suggest that Chance stomped someone other than Keesser. In addition, due regard should be given to the fact that while Helen Cox admitted lying about Carter, she has steadfastly and repeatedly swore that she told the truth about Chance.
14. In his testimony at the Rule 61 hearing, Gallo said that Carter told him that he, Carter, hit Keesser, and that he thought he was the first one to do so. He said that Paul Lunsford, Josh Holder and James Mayhall then got involved with hitting and kicking Keesser. He said that Paul was the last one on Keesser, and Christine Lunsford tried to pull Paul off. As to Chance, he said that "he didn't see Jimmy Chance anywhere around there." However, Mr. Gallo also said under cross examination that Carter never made any suggestion that Cox, Paul Lunsford and/or others had created a story that Chance was involved when in fact he wasn't. The suggestion that "they put Jimmy where Paul was" didn't come from Carter. It was a conclusion that Gallo himself drew based upon Carter's saying Paul Lunsford was "the last one on Keesser, and that Christine Lunsford tried pulling him off. Carter's account as related by Gallo is certainly not mutually exclusive of the accounts of Chance's kicking Keesser and being pulled off by Christine Lunsford, particularly when viewed in the context of all the accounts of what happened that night, which not surprisingly are different and inconsistent in some respects. Based upon the entire record, I am not reasonably well satisfied that any witness at Chance's trial offered false testimony in testifying that Chance repeatedly kicked Keesser.
In his appeal, the defendant argues that the Commissioner determined that Gallo's testimony would not be admissible at any retrial under D.R.E. 804(b)(3). The Commissioner does refer to the statement as hearsay on page 34 of her report, but it is not clear that she made a determination of its admissibility under Rule 804(b)(3). The defendant makes a credible argument that at least parts of Carter's statement to Gallo are admissible under Rule 804(b)(3). In addition, other possible grounds for admission of Carter's statement to Gallo, such as the extent to which Carter's statement to Gallo, or parts of it, may become admissible as a prior inconsistent (801(d)(1)(A)), have not been addressed. The Court anticipates that at least parts, and perhaps all, of Carter's statement to Gallo would be admissible at a trial on some grounds. As indicated above, the Court concludes that the defendant's Rule 61 motion should be denied even assuming that Carter's statement to Gallo would be admissible at a retrial.
According to Gallo's testimony, Carter apparently didn't see Bonds strike Keesser either, since he couldn't understand why Bonds had taken a plea. Bonds admitted to Detective Harding that he kneed the victim twice and ultimately pled guilty to manslaughter. See footnote 3.
15. As to Cox's testimony at Chance's trial falsely denying that Carter was one of Keesser's assailants and its implications that at least Paul Lunsford may also have falsely omitted involvement on his part, I conclude that the jury would still have convicted Chance if it had been informed that both Carter and Paul Lunsford were among Keesser's assailants. The jury was presented with substantial evidence that several individuals assaulted Keesser. Joseph Deselle, a neighbor, testified that he saw about five people beating on Keesser, and that after Keesser fell, five or seven people were kicking him. Duane Baynard testified that he saw Mayhall hitting Keesser with somebody else holding him. The jury was also presented with evidence that Holder, Bonds and Mayhall admitted that they had hit and/or kicked Keesser. In fact, Mayhall's statement was that he had kicked Keesser to death. Based upon the entire record, I find that there is no basis for concluding that the jury might have reached a different result, either as to the defendant's guilt or the degree of his culpability, if the jury were presented with testimony that Carter and Lunsford were involved with assaulting Keesser, as well as Chance. I further conclude that the addition of the testimony of Mr. Gallo, if admissible, would not change the result if a new trial were granted, either as to the defendant's guilt or the degree of his culpability.
16. As to the claim of ineffective assistance of counsel based upon trial counsel's failure to object to the trial Court's instructions on accomplice liability, the defendant contends that the Commissioner committed error by concluding that the defendant was "procedurally barred" from raising this issue because of the Delaware Supreme Court's prior determination on his direct appeal that the instructions did not constitute plain error. The defendant contends that ineffective assistance of counsel land plain error are two separate issues with different standards. This is, of course, true. Making this point, however, does not constitute a valid objection to the Commissioner's report. The Commissioner concluded that the Delaware Supreme Court's decision on the jury instructions in the defendant's direct appeal precluded him from establishing prejudice resulting from his trial counsel's alleged ineffectiveness. Establishing prejudice is a necessary element both to avoid procedural default under Rule 61(i)(3) and to satisfy the Strickland test. In its decision on the defendant's direct appeal the Supreme Court of Delaware concluded that the jury instructions as given, even with the omission of Section 274 instruction, informed the jury that it was required to determine Chance's liability for Keesser's death, and also to determine his own degree of culpability, and that the jury understood its task. After reviewing the Commissioner's Report and Recommendation, the Delaware Supreme Court's decision on the defendant's direct appeal, and the decision of Skinner v. State, I agree with the Commissioner's determination that the defendant is unable to establish prejudice resulting from trial counsels failure to object to the jury instructions.
Strickland v. Washington, 466 U.S. 668 (1984).
Skinner v. State, Del. Supr., 607 A.2d 1170 (1992).
NOW, THEREFORE, the defendant's motion for postconviction relief is denied.
IT IS SO ORDERED.