Opinion
CR. A. NOS: IN88-02-1007 R2; IN88-02-1008 R2; IN 88-04-0845 R2, DEF. I.D.: 30800813DI.
Submitted: July 14, 2005.
Decided: October 28, 2005.
Upon Consideration of Defendant's Pro Se Motion for Postconviction Relief DENIED.
ORDER
This 28th day of October, 2005, upon consideration of the Motion for Postconviction Relief brought by Defendant, Steven D. Crawford, it appears to the Court that:
1. Mr. Crawford was convicted by a jury on April 13, 1989 of Murder First Degree, Arson First Degree and Possession of a Deadly Weapon During the Commission of a Felony. He was sentenced to life imprisonment. On May 25, 1989, he appealed his conviction to the Supreme Court of Delaware. The conviction and sentence were affirmed on September 21, 1990.
Crawford v. State, 580 A.2d 571 (Del. 1990).
2. On September 21, 1993, Mr. Crawford filed a motion for postconviction relief in which he raised four claims: (1) double jeopardy violations; (2) the lack of a death penalty hearing; (3) improper withholding of evidence; and (4) other prosecutorial misconduct. This Court denied his motion on both procedural and substantive grounds. Mr. Crawford subsequently appealed the denial of his motion to the Supreme Court. On March 15, 1995, the Supreme Court affirmed the ruling. Mr. Crawford now brings his second motion for postconviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61").
State v. Crawford, No. IN88-02-1007R1, 1994 WL 1750390 (Del.Super.Ct. Sept. 13, 1994).
State v. Crawford, No. 394, 1995 WL 120669 (Del. Mar. 15, 1995).
Del. Super. Ct. Crim. R. 61.
3. Mr. Crawford raises three grounds for postconviction relief: (1) ineffective assistance of counsel; (2) destruction of highly exculpatory evidence; and (3) an alleged erroneous ruling by this Court denying Mr. Crawford an evidentiary hearing to determine the circumstances surrounding the destruction of alleged exculpatory evidence. In addition, Mr. Crawford contends that he is entitled to have certain evidence DNA tested pursuant to 11 Del. C. § 4504.
Mr. Crawford's motion does not state a claim pursuant to 11 Del. C. § 4504. However, in his brief in support of his motion he does contend that he has established a prima facie case under section 4504. See Docket Item ("D.I.") 88 at 3.
4. Before addressing the merits of any postconviction relief claim, the Court first must determine whether the claims pass through the procedural filters of Rule 61. To protect the integrity of the procedural rules, the Court will not address the substantive aspects of the claims if Defendant's claims are procedurally barred. Rule 61(i) imposes four procedural imperatives: 1) the motion must be filed within three years of a final order of conviction; 2) any basis for relief must have been asserted previously in any prior postconviction proceeding; 3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules; and 4) any basis for relief must not have been formerly adjudicated in any proceeding. Under Rule 61(i)(5), a defendant may avoid the first three of these procedural imperatives if the claim is jurisdictional or is a "colorable claim that there was a miscarriage of justice because of a constitutional violation."
Younger v. State, 580 A.2d 552, 554 (Del. 1990) ("It is well-settled that the Superior Court and this Court must address the procedural requirements of Rule 61 before considering the merits of this motion.").
Id.
5. Mr. Crawford's motion is procedurally barred. Well over three years have passed since the final order of conviction. Moreover, Mr. Crawford did not previously assert at his trial, direct appeal, or prior postconviction proceeding the basis for relief that he has alleged here. Nevertheless, because Mr. Crawford has, arguably, made a "colorable claim" that his constitutional rights have been violated, the Court will address the substantive merits of his allegations. The Court will also assess Mr. Crawford's contention that he is entitled to have certain evidence subjected to DNA testing pursuant to 11 Del. C. § 4504.
A. Ineffective Assistance of Counsel Claim
6. In 2000, Mr. Crawford submitted an application to the Office of the Public Defender Innocence Project in an attempt to obtain DNA testing of crime scene evidence — specifically a cigarette and fingernail clippings. The Director of the Innocence Project accepted Mr. Crawford's application and subsequently assigned his case to an Assistant Public Defender. After an investigation was conducted by the assigned attorney, "it was determined that DNA testing of the cigarette found in the victim's vagina and victim's fingernail clippings . . . could provide conclusive evidence which could aid [Mr. Crawford] in [his] exoneration. No other items collected would provide conclusionary evidence." After what appeared to be an extensive search, however, the attorney was unable to locate the cigarette and fingernail clippings as the items were not in the possession of the FBI, Office of the Medical Examiner, Wilmington Police Department or the Superior Court Prothonotary. It was therefore concluded that the items were destroyed. As a result, the Director of the Innocence Project informed Mr. Crawford that they were no longer able to assist him and encouraged him to pursue other forms of postconviction relief. Mr. Crawford now alleges that the attorney assigned to his case under the Innocence Project was ineffective for failing to locate the cigarette and fingernail clippings and, as such, denied him the right to effective assistance of counsel under the Sixth Amendment.
D.I. 88, ex. 13.
Id., ex. 23.
7. The "right to effective assistance of counsel . . . is dependent on the right to counsel itself." It is "settled law that there is no constitutional right to counsel during post-conviction proceedings." Therefore, "absent such a Sixth Amendment right, a defendant may not bring a claim of ineffective assistance of counsel."
Shipley v. State, 570 A.2d 1159, 1166 (Del. 1990) (emphasis in original).
Floyd v. State, No. 194, 1992 WL 183086, at *1 (Del. July 13, 1992).
Id.
8. Here, the Public Defender's appointment of an attorney to Mr. Crawford's case under the Innocence Project was entirely discretionary. Mr. Crawford was required to apply and be accepted into the Innocence Project program before an attorney was assigned to his case. He had no constitutional right to have counsel appointed. He may not, therefore, bring an ineffective assistance of counsel claim in connection with this representation.
B. Destruction of Exculpatory Evidence
9. Mr. Crawford contends that the State or the Wilmington Police Department destroyed the cigarette and fingernail clippings in bad faith and in violation of the conditions of his life imprisonment sentence which requires the preservation of the evidence from his trial for the remainder of his natural life. As a consequence of this purported violation of the sentencing order, Mr. Crawford declares that he was denied due process.
Mr. Crawford maintains that the evidence from his trial was to be preserved per the order of the trial judge. No such order can be found in the record. The Court acknowledges, however, that upon a sentence of life imprisonment, the Superior Court Prothonotary preserves all evidence that was introduced and admitted at trial for the remainder of the defendant's life. See Del. Super. Ct. Crim. R. 55; D.I. 84.
10. The federal constitutional standard used to determine whether a defendant's due process rights have been violated by the destruction of evidence is articulated in Arizona v. Youngblood. Youngblood holds that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." The Delaware Supreme Court, however, does not endorse the "federal bright line due process test of police bad faith but adhere[s] to the State constitutional underpinnings of Deberry where `the conduct of the State's agent is a relevant consideration, but is not determinative.'" Under the Deberry standard, due process claims of this type are examined as follows: 1) would the requested material have been subject to disclosure under Superior Court Criminal Rule 16(b) or Brady v. Maryland; 2) if so, did the government have a duty to preserve the material and; 3) if there was a duty to preserve, was the duty breached. In determining whether the duty was breached, the court should consider: 1) the degree of negligence or bad faith by the State or its agent; 2) the importance of the lost evidence and; 3) the sufficiency of the other evidence adduced at the trial to sustain the conviction.
488 U.S. 51 (1988).
Id. at 57-58.
Lolly v. State, 611 A.2d 956, 959-960 (Del. 1992) (quoting Hammond v. State, 569 A.2d 81, 87 (Del. 1989)); see Deberry v. State, 569 A.2d 81 (Del. 1983).
383 U.S. 83 (1963).
Deberry, 457 A.2d at 750.
Id. at 753. The Court notes that in both Deberry and Youngblood, and a majority of other federal and state cases dealing with this issue, the destruction of evidence occurred pre-trial, whereas in this case the destruction of the evidence occurred post-trial. Notwithstanding this factual distinction, the Court sees no reason why the Deberry standard should not apply to this situation. See Lovitt v. Warden, 585 S.E.2d 801, 815 (Va. 2003) ("[F]or purposes of this petition only, we will assume, without deciding, that a habeas petitioner may assert a due process claim regarding the post-trial destruction of evidence, and that the Youngblood standard governing pre-trial destruction of evidence also applies to a due process claim involving evidence destroyed post-trial."); State v. Vickers, 885 P.2d 1086, 1093 (Ariz. 1994) ("In an attempt to circumvent this precedent, defendant argues that the `bad faith' standard enunciated in Youngblood does not apply to this case because Youngblood involved pretrial destruction of evidence, whereas this case involves post-verdict destruction of evidence. We find this argument unpersuasive . . . We fail to see how the pretrial versus post-verdict distinction . . . bears upon [the] issue of fundamental fairness."); State v. Parker, 647 N.W.2d 430, 433 (Wis.Ct.App. 2002) ("[T]he parties have not cited to, nor have we located, any case law addressing the posttrial destruction of evidence. There is a long line of cases addressing the pretrial destruction of evidence and a defendant's due process rights. We see no reason why this line of cases should not apply to the situation at hand.").
11. The destruction of evidence in this case did not abrogate Mr. Crawford's right to due process. While it is likely that the cigarette and fingernail clippings would have been subject to disclosure under Rule 16(b) prior to trial, and that the State would have had a duty to preserve the evidence because it was discoverable, the State did not breach its duty to preserve. There is no indication that the State, or the Wilmington Police Department, acted in bad faith or in a negligent manner in destroying the evidence. Unlike Deberry, where the evidence was lost or destroyed prior to trial, these items were available to Mr. Crawford prior to, during and, for a period of time, after trial. Moreover, although the cigarette and fingernail clippings were the subject of some discussion at trial by the Chief Medical Examiner, neither of these items were entered into evidence. Only a "slide" of the cigarette was entered into evidence. Therefore, contrary to Mr. Crawford's allegations, these items were not required to be preserved because they were not introduced as evidence at trial. As such, neither the State nor the Wilmington Police Department has breached its duty to preserve and thus Mr. Crawford was not denied due process.
See Deberry, 457 A.2d at 751-752.
D.I. 88, ex. 25, 26.
Id., ex. 23, 25.
See fn 13; Super. Ct. Crim. R. 55.
C. Denial of Defendant's Request for an Evidentiary Hearing
12. Mr. Crawford next contends that he was denied due process when this Court denied him an evidentiary hearing to determine the circumstances surrounding the destruction of the cigarette and the fingernail clippings. His argument is without merit. The decision to hold an evidentiary hearing is within the discretion of this Court. In its October 15, 2003 Order, the Court stated that its "docket reveals that neither [the cigarette or fingernail clippings] were introduced as evidence during [Mr. Crawford's] trial. Consequently, the Court is not in possession of this evidence and cannot, therefore, order that it be [DNA] tested. Based on the foregoing, your request for an evidentiary hearing to determine the circumstances surrounding the destruction of the evidence is DENIED." The Court still maintains that an evidentiary is not warranted and does not find that the aforementioned Order was erroneous.
Brown v. State, No. 386, 2000 WL 383782, at *2 (Del. Mar. 16, 2000).
D.I. 87.
13. Lastly, Mr. Crawford contends that he is entitled to have the cigarette and fingernail clippings DNA tested because he has established a prima facie case pursuant to 11 Del. C. § 4504. Even if these items were not previously destroyed and Mr. Crawford had in fact established a prima facie case under section 4504, he would still not be permitted to avail himself of the provisions of section 4504. Section 4 of 72 Del. Laws, c. 320, as amended by 74 Del. Laws, c. 72, § 1, provides: "Any motion filed pursuant to the provisions of § 4504(a) of Title 11 as promulgated by § 3 of this act by any person whose judgment of conviction is final prior to September 1, 2000, may not be filed after September 1, 2004." Because Mr. Crawford's conviction was final prior to September 1, 2000, and further because he did not file a motion pursuant to section 4504 prior to September 1, 2004, he is barred from seeking a remedy under section 4504.
See State v. Wolf, No. IN84-09-0789, 2003 WL 22701445, at *2 (Del.Super.Ct. Nov. 17, 2003) ("On June 30, 2003, Senate Bill No. 38 was enacted effectively amending Chapter 320 of Volume 72 of the laws of Delaware relating to post-conviction remedies. The act extended the time for DNA testing motions for those whose judgment of conviction was final prior to September 1, 2000 to September 1, 2004.").
14. Based on the foregoing, Mr. Crawford's Motion for Postconviction Relief is DENIED.