Opinion
ID No. 0806022824
05-19-2017
STATE OF DELAWARE v. DAMIEN P. WILKINSON Defendant.
Jenna R. Milecki, State Prosecutor, Department of Justice, Carvel State Building, 820 N. French Street, 7th Floor, Wilmington, DE 19801, Attorney for the State Damien P. Wilkinson, SBI No. 00616740, James T. Vaughn Correctional Center, 1181 Paddock Road, Smyrna, DE 19977, pro se
Upon Defendant's Motion for Postconviction Relief, SUMMARILY DISMISSED.
Upon Defendant's Motion for Appointment of Counsel, DENIED. OPINION Jenna R. Milecki, State Prosecutor, Department of Justice, Carvel State Building, 820 N. French Street, 7th Floor, Wilmington, DE 19801, Attorney for the State Damien P. Wilkinson, SBI No. 00616740, James T. Vaughn Correctional Center, 1181 Paddock Road, Smyrna, DE 19977, pro se BRADY, J.
I. INTRODUCTION
Before the Court is a Motion for Postconviction Relief and Motion for Appointment of Counsel filed pursuant to Superior Court Criminal Rule 61 ("Rule 61") by Damien P. Wilkinson, ("Defendant") on September 12, 2016. The Defendant argues that because another individual was subsequently convicted of raping the same minor victim, testing unknown DNA samples could have cleared the Defendant of all charges.
II. FACTS & PROCEDURAL BACKGROUND
The facts are adopted from the Delaware Supreme Court's Opinion affirming the Defendant's convictions and sentence. Wilkinson v. State, 979 A.2d 1111 (Del. 2009).
In April 2008, C.W., her four children, her fiancé, Arturo Juarez, and her brother, the Defendant, all lived in the same house in Richardson Park. At the time, C.W.'s daughter, C.B. was four years old. While living with his sister and her family, the Defendant occasionally babysat his nieces and nephews.
The Court will utilize the same initials used by the Delaware Supreme Court to identify the victim's mother.
The Court will utilize the same initials used by the Delaware Supreme Court to identify the minor-child victim.
On the afternoon of April 20, after coming home from work, C.W. observed C.B. making a motion of going in and out of her mouth with her right index finger, a gesture C.W. had never seen her make before. When C.W. asked her daughter "where she got that from," C .B. answered that "Uncle Day-Day makes her do that to him." C.W. asked C.B. "what else Uncle Day-Day makes her do," and C.B. answered that "he stuck his tail in her butt and squirted milk all over my bed." When the Defendant came home that evening, C.W. confronted him with C.B.'s statements. The Defendant became "shaky," and he started throwing up.
Uncle Day-Day was C.B.'s nickname for the Defendant.
The next day, C.W. reported the information to the New Castle County police. Officer Eric Sherkey collected the sheets, pillowcases, and comforter from C.W.'s bed and advised the family to seek immediate medical assistance at the A.I. DuPont Hospital for Children. Genetic testing of bodily fluids on the bedding could not exclude the Defendant as a contributor from the five samples tested. The probability that someone other than the Defendant was the contributor of that genetic material was 1 in 6,536,000,000,000,000,000 (quintillion).
On April 28, C.B. was given a multi-disciplinary evaluation at the Children's Advocacy Center ("CAC"), triggered by the report of sexual abuse. The evaluation consisted of an interview by Terry Kaiser and a medical examination by Allan DeJong, M.D. During her interview, C.B. told Kaiser that her uncle (the Defendant) made her "get the milk out," and that the "milk" went on "Mommy's bed." Dr. DeJong found no signs of recent injury to the genital or anal area.
Through the use of anatomical drawings, Kaiser determined that C.B. used the term "butt" to describe her vagina, and a "tail" to describe a penis.
On May 1, Officer Sherkey and Detective Karen Crowley interviewed the Defendant. He was advised of his Miranda rights and signed a waiver form. He denied the alleged activity. On June 20, the Defendant was arrested and later charged with four counts of Rape in the First Degree.
The Defendant's two-day trial commenced on February 3, 2009. Prior to the start of trial, the State entered a nolle prosequi on two of the counts of Rape. The jury found the Defendant guilty of both remaining counts of Rape in the First Degree. On April 3, the Superior Court sentenced the Defendant to a total of fifty-five years at Level V, suspended after serving fifty years for decreasing levels of supervision.
The Defendant filed an appealed of his conviction to the Delaware Supreme Court. On September 14, 2009 the Delaware Supreme Court affirmed the Defendant's conviction and sentence, finding his appeal to be without merit.
The Defendant filed his first Motion for Postconviction Relief on January 14, 2010, which was denied by this Court on April 29, 2010. The Defendant filed a second Motion for Postconviction Relief on February 18, 2011. In relation to this Motion, trial counsel filed an affidavit addressing the Defendant's claims on May 27, 2011. The Superior Court denied the Defendant's Motion on May 21, 2012, and the Delaware Supreme Court affirmed that decision on December 12, 2012.
The instant Motion for Postconviction Relief was filed by the Defendant on September 12, 2016. The Court asked that the State file a Response to the Defendant's claim. After being granted several extensions, the State submitted its Response on February 28, 2017. The Court then took the matter under advisement. This is the Court's decision.
III. DEFENDANT'S CONTENTIONS
The Defendant contends that if all of the DNA samples taken from the bedding which the victim had been raped on had been tested, there was a chance that he could have been cleared of all of the charges. In support of this contention, the Defendant argues that Arturo Jaurez plead guilty to raping the same minor victim in 2015.
IV. STATE'S RESPONSE
The State contends the Defendant's Motion, his third Motion for Postconviction Relief, should be summarily dismissed because it is procedurally barred. The State argues that the subsequent sexual assault of the same victim by another individual is not new evidence which creates a strong presumption that he is actually innocent. The State also contends that DNA evidence was not the only contributing factor to the Defendant's conviction, but was corroborative of the victim's disclosure that the Defendant raped her.
V. DEFENDANT'S REQUEST FOR APPOINTMENT OF COUNSEL
Rule 61(e)(4) provides that the judge may appoint counsel for a defendant's second or subsequent filed postconviction motion, only if the if the judge determines that the movant plead with particularity either, "that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underling the charges of which he was convicted," or "a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court of the Delaware Supreme Court, applies to the movant's case and renders the convictions or death sentence invalid."
Super. Ct. Crim. R. 61(e)(4).
The Court finds no such grounds in this matter. The Defendant has not alleged new evidence which creates a strong inference of his actual innocence, nor has he claimed that a new rule of constitutional law has been made retroactive which applies to his case. The Defendant's Motion for Appointment of Counsel is, therefore, DENIED.
VI. PROCEDURAL BARS
Before addressing the merits of Defendant's claims, the Court must determine if any procedural bar precludes Defendant's Motion. Defendant's Motion is governed by the version of Rule 61 which took effect on June 1, 2015. The Rule as applied in this case provides,
See Younger v. State, 580 A.2d 552, 554 (Del. 1990) (the Court must first address any procedural bars set forth in Superior Court Criminal Rule 61(i) in effect at the time the motion was filed).
[a] second or subsequent motion shall be summarily dismissed, unless the movant was convicted after a trial and the motion either:
(i) pleads with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted; or
(ii) pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant's case and renders the conviction or death sentence invalid.
Super. Ct. Crim. R. 61(d)(2). --------
The Defendant filed his first Motion for Postconviction Relief on January 14, 2010, which was denied by this Court on April 29, 2010. The Defendant filed a second Motion for Postconviction Relief on February 18, 2011, which was denied by this Court on May 21, 2012. The Delaware Supreme Court affirmed the denial of the Defendant's Motion on December 12, 2012.
The Defendant has not met the pleading standard enumerated in Rule 61(d)(2). The Court finds that the subsequent sexual assault of the same victim by another individual is not new evidence which creates a strong presumption that the Defendant is innocent. In addition to the DNA evidence presented to the jury which convicted the Defendant, the victim recited events of abuse and identified the Defendant as the person that had raped her.
Further, the Defendant has failed to identify a retroactively applicable right that has been newly recognized that would render his conviction invalid, so that exception is inapplicable.
VII. CONCLUSION
For the reasons stated above, the Defendant's Motion for Postconviction Relief is SUMMARILY DISMISSED and the Defendant's Motion for Appointment of Counsel is DENIED.
IT IS SO ORDERED.
/s/_________
M. Jane Brady
Superior Court Judge