Opinion
ID No. 84006375DI.
Submitted: January 7, 2008.
Decided: February 4, 2008.
Upon Consideration of Motion for Postconviction Relief.
DENIED.ORDER
This 4th day of February, 2008, upon consideration of defendant's motion for postconviction relief pursuant to Superior Court Criminal Rule 61, it appears to the Court that:
1. A jury found defendant guilty in 1985 of rape in the first degree, kidnapping in the first degree, possession of a deadly weapon during the course of a felony and possession of a deadly weapon by a person prohibited.
2. For the first degree rape, defendant was sentenced to serve life in prison, the first twenty years of the sentence being mandatory. For kidnapping, he was sentenced to life in prison. For possession of a deadly weapon during the commission of a felony he was sentenced to serve five years, which is a mandatory sentence. For possession of a deadly weapon by a person prohibited, he is to serve one year in prison.
3. Before addressing the merits of any postconviction relief claim, the Court must determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61. Superior Court Criminal Rule 61(i) imposes four procedural imperatives: 1) the motion must be filed within three years of a final order of conviction ; 2) any ground for relief that was not asserted in a prior postconviction proceeding is thereafter barred; 3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules; and 4) any ground for relief must not have been formerly adjudicated in any proceeding leading to the judgment of conviction.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
The July 1, 2005 amendment substituted "one year" for "three years" twice in (i)(1). Since the judgment of conviction in the case at hand falls prior to the date of this amendment, the one year time limit is not applicable here.
4. Just like his previous motion for post-conviction relief, this motion is procedurally barred because it was filed more than three years after his final order. Additionally, the grounds asserted by defendant in this motion were not raised in his prior postconviction proceeding.
State v. Tatem, 2003 WL 22048227 (Del.Super.).
5. Defendant states that he "had no opportunity to raise prosecutorial misconduct due to only finding out that it existed based upon this most recent case wherein prosecutor's racial comment was injected into the proceeding of the Charles Burley case . . ." No citation or additional information is provided. It appears defendant is referring to State v. Burley, as this case was recently decided, however that case does not involve the issue of prosecutorial misconduct. Nevertheless, the Court has researched the issue of race and prosecutorial misconduct and will address the matter below.
2007 WL 2309747 (Del.Super.)
6. Defendant alleges prosecutorial misconduct as the prosecutor said during his closing argument that the defendant "is not very bright." According to defendant, this statement improperly injected race into his trial such.
Trial transcript, p. 161.
7. Defendant's rationale is that the prosecutor's statement implied "that the defendant who is black was inferior when he called him stupid, a comment which historically labeled blacks . . ."
Defendant's Motion at 3.
8. Having determined that the present motion is procedurally barred, the Court will now address whether defendant's allegation meets a statutory exception to the procedural bars to relief.
9. Under 61(i)(5) the procedural bars of Rule 61 are inapplicable where the defendant claims the court lacked jurisdiction or that there was a constitutional violation which "undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."
10. Defendant does not claim the Court lacked jurisdiction, then the issue is whether the prosecutor's comments undermine the proceedings and created a Constitutional deprivation.
11. The law in Delaware establishes that where there is an "improper injection of race as an issue into a criminal proceeding [it] violates the right of due process."
Weddington v. State, 545 A.2d 607 (Del. 1988).
12. However, the cases in which such statements or evidence warranted a new trial are markedly distinct from the statement made in this case. Those cases involved instances where a racial slur was admitted into evidence or a question was asked that was relevant only for the purposes of determining the race or racist feelings of a defendant, victim, or witness.
See Id.
13. In Holtzman v. State the defendant was accused of raping his daughter after discovering that she had been sexually active with her boyfriend, who was of another race. It was held to be an improper injection of race into the proceedings when a question sought to elicit the boyfriend's race to the jury.
718 A.2d 528 (Del. 1998).
14. Also in Floudiotis v. State, photos of the defendants, wearing racist tee-shirts were shown to the jury, but race was not alleged as the motivation for the attack. This was an improper insertion of race into the proceedings.
726 A.2d 1996 (Del. 1999).
15. In this case, the issue of defendant's intelligence was first raised by the defense as argument to mitigate the charges. The comment made by the prosecutor was to refer to defense counsel's comment in his closing statement and to rebut that argument.
Trial transcript p. 161.
16. There is no link between the comment made by the prosecutor and race. No racial slurs or epithets used by the prosecutor or elicited in testimony. No evidence or statements relating to race or racist motives was presented to the jury.
17. Based upon the above reasoning, Defendant's Motion for postconviction Relief is DENIED.
IT IS SO ORDERED.