Opinion
Cr.A. No. IN-84-06-0594.
Submitted: December 8, 1998.
Decided: February 2, 1999. Motion Denied: February 8, 2000
ORDER
This 2nd day of February, 1999, upon review of the record in this case, it appears to this Court that:
1) Defendant Dean Cornelius Black ("Defendant") moves for a New Trial pursuant to Rule 33 of the Delaware Superior Court Criminal Rules.
2) On March 12, 1985, Defendant was found guilty on two charges of Attempted Rape First Degree in IN-84-06-0594 and IN-84-07-1944.
3) As to IN-84-06-0594, he was sentenced to be imprisoned for five years served consecutive to the sentence Defendant was serving at the time and he received credit for 52 days previously served on the first charge of Attempted Rape. As to IN-84-07-1944, he was sentenced to be imprisoned for 20 years served consecutive to the sentence imposed in IN-84-06-0594, that is, beginning July 11, 1991 and ending July 10, 2011. After 10 years served, the balance of the imprisonment was suspended to place Defendant on probation, subject to supervision by the Department of Correction, for the balance of the term.
4) Defendant violated the terms of his probation by changing his residence and by not properly notifying his supervising probation officer.
5) On June 10, 1997, Defendant was sentenced in IN-84-06-0594 on a violation of probation and received, effective April 14, 1997, a Level V sentence in the Custody of the Department of Correction for 10 years. The first nine years of the sentence are a mandatory term of incarceration pursuant to 11 Del. C. § 4204(k). After serving nine years, six months, the remainder of the sentence is suspended for six months at Level IV work release.
6) In support of this motion for a new hearing, Defendant contends that there is newly discovered evidence since his violation for probation hearing that warrants a new hearing on whether Defendant did, in fact, violate his probation. Specifically, Defendant requests that this Court consider two newly discovered witnesses. First, Defendant states that Sherita Barr ("Barr") is a newly discovered witness. He states that she swears in an affidavit that she ". . . never spoke with Jennifer Allen ("Allen") [Defendant's probation officer who notified this Court that Defendant violated his probation] about my father's, Dean Black, whereabouts. The statement she [Allen] made was untrue. He has always lived at 1000 West 9th Street, Wilmington, Delaware, 19806." Second, Defendant states that Deana Lewis ("Lewis") is willing to testify to the same statement as Barr and to testify that she never met Allen and could not, therefore, have told Allen that she (Lewis) did not know Defendant's whereabouts.
7) Defendant states that at the violation of probation hearing, Allen presented statements from Defendant's daughters (Barr and Lewis) that the daughters did not know Defendant's whereabouts and did not know to where he moved. Defendant further states that Allen presented false statements to the Court because, Defendant alleges, Allen "knew when she gave testimony in Court that she did not talk to my daughters." And Defendant contends that Allen did not speak to or receive statements from Barr and Lewis.
8) Defendant argues that the evidence is newly discovered and that it is important that the Court hear the evidence because, Defendant alleges, the Court heard only the State's aggravating factors at the violation of probation hearing and did not hear mitigating evidence. Therefore, Defendant argues, the new evidence "will probably change the result if a new trial/hearing is granted."
9) Superior Court Criminal Rule 33 allows the granting of a new trial if required in the interest of justice. Rule 33 provides in pertinent part that:
If trial was by the court without a jury the court on motion of a defendant for a new trial may vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. A motion for new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment. . . . A motion for new trial based on any other grounds shall be made within 7 days after verdict or finding of guilty. . . .
10) In order to warrant granting of a new trial on the ground of newly discovered evidence, it must appear: (1) that the evidence is such as will likely change the result if a new trial is granted; (2) that it has been discovered since the trial, and could not have been discovered before by the exercise of due diligence; and (3) that it is not merely cumulative or impeaching.
11) Even assuming that Barr and Lewis' statements satisfy the first prong of the test for granting a new trial, the evidence to which Defendant bases his motion is not new nor is it newly discovered. The evidence concerning Barr and Lewis and the alleged discrepancies between their and Allen's statements were readily available to Defendant at the time of his violation of probation hearing and certainly could have been discovered before his hearing. Defendant fails to explain why the evidence was not presented at his hearing. He indicates that the witnesses were not available at the time of the hearing, but fails to explain why the witnesses were unavailable and why, if they were physically unavailable, he did not present affidavits of their statements at the time of the hearing. Accordingly, the evidence cannot be considered to be newly discovered.
12) Because the evidence is not newly discovered, this motion is considered to be "based on . . . other grounds." As such, Rule 33 requires Defendant to have filed this motion within seven days after the Court's finding and sentencing. Defendant filed this motion 18 months after he was sentenced. Both procedurally and substantively, therefore, Defendant's contentions do not require a new hearing.
Defendant Dean Cornelius Black's Motion for a New Trial/Hearing, p. 7.
Defendant Dean Cornelius Black's Motion for a New Trial/Hearing.
Lloyd v. State, Del. Supr., 534 A.2d 1262 (1987), State v. Hamilton, Del. Super., 406 A.2d 879 (1974).
Del. Super. Ct. Crim. R. 33.
Based upon the foregoing, Defendant Black's Motion for a New Hearing is DENIED.
IT IS SO ORDERED.