Opinion
IK94-08-0330-R1
November 15, 1999
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
John R. Garey, Esq. and Daniel R. Miller, Esq., Deputy Attorneys General, for the State of Delaware.
Joseph M. Bernstein, Esq., for the Defendant.
COMMISSIONER'S REPORT AND RECOMMENDATION
On June 29, 1995, after a lengthy trial, a jury found the Defendant James Chance ("Chance") guilty of Murder in the Second Degree, 11 Del. C. § 635. Following a presentence investigation, Chance was sentenced on September 15, 1995, to 16 years imprisonment. On appeal the State Supreme Court affirmed Chance's conviction and sentence.
Chance v. State, Del. Supr., 685 A.2d 351 (1996).
Chance filed the pending motion for postconviction relief in a timely manner and subsequently amended the motion. In the motion Chance alleged one of the State's witnesses committed perjury. The State responded. In his reply to the State, Chance, for the first time, made allegations that the witnesses who testified against "him had conspired to "frame" him for Michael Keesser's ("Keesser") murder. The State neglected to respond to this new allegation. Upon review of the matter, the Court determined that in the interest of justice an evidentiary hearing should be held concerning the allegations of perjury and the alleged "plot" to frame Chance for the actions of others. Due to witness availability, the hearing was held on two separate dates. A transcript was ordered and the parties were instructed to amend their original submissions based on the hearing testimony. The parties have responded. Following my review of the trial transcript, the file, the hearing record, the applicable law and my assessment of the creditability of the witnesses, I conclude that the Defendant has failed to meet his burden under Rule 61 and that justice requires that his motion be denied. I am therefore recommending the Court deny the motion.
I. THE FACTS
The following is a brief summary of the facts as noted by the Supreme Court in its opinion:
On August 19, 1994, Chance attended a party hosted by his friend, Paul Lunsford ("Lunsford"). Prior to arriving at the party, Chance had spent the day drinking heavily. He described himself as "crazy."
Keesser came to the party with a group of friends. Keesser remained with them, rather than mixing with the other guests. This apparently angered Chance, who told several people that there would be a fight with the Keesser group.
Chance began to provoke fights with other guests at the party. Chance eventually accosted one of Keesser's friends at the party. When a general fight ensued inside of Lunsford's house, Keesser decided to leave the party. Keesser left the backyard and walked toward his car with his keys in hand.
Keesser was accosted before he reached his vehicle. Keesser was then beaten by James Mayhall ("Mayhall"), Joshua Holder ("Holder"), James Bonds ("Bonds"), and Chance. Lunsford and other party guests [Helen Cox and James Ford] witnessed Chance repeatedly kicking Keesser in the head. Keesser was left motionless in the Street. Attempts to resuscitate Keesser failed. He died a short time later.
Chance and the other assailants [Mayhall, Holder and Bonds] were each charged separately with Murder in the Second Degree. In November, 1995, Bonds entered a guilty plea to Manslaughter. In March, 1996, Holder was convicted of Manslaughter. Although the charges against Mayhall were pending at the time of Chance's trial, Chance was tried alone.
Id. at 352-353.
Mayhall subsequently pled guilty to Manslaughter. Although the Supreme Court gives a succinct overview of the facts, additional information concerning the testimony is needed to fully address Chance's contentions.
From the testimony and evidence presented at Chance's trial, the following version of events was given to the jury. On the afternoon of August 19, 1994 Chance arrived at Lunsford's home around 1:30 in the afternoon to help his good friend, Lunsford, set up for the party which was to celebrate Lunsford's twentieth birthday. The party was centered in the backyard where a keg of beer was located. Chance began drinking soon after he arrived at the party and spent the rest of the day and evening drinking beer and whiskey. In fact, several guests testified that Chance was walking around carrying a half gallon bottle of Lord Calvert Whiskey throughout the party.
The number of party guests ebbed and flowed throughout the day and evening with estimates of up to 40 persons at one time. Most of the guests were in their late teens or early twenties. In addition to the beer and whiskey, there was marijuana and LSD use going on at the party.
Lunsford had invited his friend Kevin Bissette ("Bissette" AKA "Salty") to the party and told him he could bring along some friends. Bissette brought his friends, Steven Gunser ("Gunser") and brothers Jason and Bruce Moffett ("Jason" and "Bruce"). The four initially arrived around 8:30 p.m. and gravitated to the backyard where the keg was located. They noted that the other guests, particularly those inside seemed rather sedated and depressed when they arrived. The four had a few beers and left shortly after arriving to pick up Keesser and Michael Thompson ("Thompson"). The six then returned to Lunsford's party and again made their way out back. There was testimony that Gunser made a pass at one of the women at the party and that one of the few adults at the party, Dawn Maderios (Joshua Holder's mother), wanted Bissette's group to leave because they were drunk and making trouble.
Gunser is referred to throughout the trial as the guy from New Jersey with the black hair and goatee.
During the trial, there was extensive testimony concerning Chance's demeanor at the party. Michael Adams ("Adams") testified that Chance was drunk and combative with other party guests including Greg Austin ("Austin"). Adams stated that Chance never came to blows with Austin, but that he was clearly upset and "on the brink of fighting." Adams tried to mediate and Chance backed off only to confront Austin several minutes later. Adams also heard Chance say that there was going to be a fight with Keesser's group and the others, so he decided to leave the party, prior to any violence breaking out.
Brian Funk ("Funk"), a friend of both Lunsford and Chance was also at the party prior to the violence, he too noticed "weird stuff." Funk arrived in the early afternoon when there were only five or six people at the party. He testified that "[e]veryone was really excited. There were running around slapping each other and doing weird stuff . . . they were like mock fighting but playing like between friends." At this time Bonds, Lunsford and Chance were present. Funk was drinking while at the party. He eventually left around 9:00 p.m. because he was concerned Chance was going to provoke a fight with him. Funk testified Chance was giving him "dirty looks" and getting up very close to him, in his face. Funk along with others testified Chance was wearing jeans, boots and no shin. He testified that the boots the State had obtained from Chance resembled the boots Chance wore the evening of the party. Cean Carter, ("Carter") who was Helen Cox's boyfriend at the time, testified that he and Chance were discussing how "messed up" they were and Chance told Carter he was "tripping." Lunsford also testified concerning Chance's demeanor saying he had been loud and vulgar with everyone and that he had seen Chance knock someone out of a chair.
Transcript of Chance's trial, ("Chance Trans."), June 21, 1995, p. 63.
Chance Trans. June 21, 1995, p. 65.
Jason Moffett knew Chance from a job he previously had. When Jason arrived, he noticed Chance walking around the party. At one point Jason went to get a beer from the keg. Chance was there and tried to force Jason to take a shot of the Lord Calvert Whiskey. Jason refused, but Chance persisted. Eventually, Jason grabbed a beer and walked away from Chance. After leaving to get Keesser, Jason and the others returned to the backyard of Lunsford's house. Eventually, Jason and Gunser noticed the backyard party was winding down so they went inside. Once inside, Jason was approached by Chance who told Jason that he was "crazy." Jason testified that "[a]t this point, I didn't feel he was trying to be aggressive to me. I figured he was trying to mess around. When I realized something was getting serious, he got up in my face again, told me how crazy he was again looking up at me in an eerie look and his face looked really strange." Duane Baynard ("Baynard") observed this altercation.
Chance Trans., June 20, 1995, p. 20-21.
At this point, Lunsford pulled Jason into another room in what Jason believed to be an attempt to stop the pending fight between Jason and Chance. Lunsford testified that he took Jason away from Chance telling him he did not want fighting in his house, while pushing Jason in the chest and telling him to leave. According to Jason, Lunsford was acting aggressive. Bissette came up and tried to get Jason to leave at which point Jason saw Gunser being beaten up by a group of people so he went to help his friend. Jason then recalled being set upon by the group as well. He lost consciousness and woke up near a car in the driveway. At this point he noticed people leaving and his brother, Bruce, attempting CPR on Keesser with Lunsford helping. While the altercation was occurring inside, Baynard grabbed Chance and pulled him away from the fighting around Gunser. Baynard told Chance not to do anything stupid.
Meanwhile, Keesser, Thompson and Bruce Moffett were in the backyard. Bruce noticed the party was dwindling so he headed for the front yard. As he came out front he noticed a melee in progress. Immediately, he saw his brother lying unconscious against a car. As he went to help his brother, he was set upon by a number of people, knocked to the ground and beaten. Bissette, who had left the house, was also involved in an altercation with Lunsford and Mayhall. Bissette was knocked unconscious.
Keesser, too, was attempting to leave, walking from the back around the left side of the house to where his car was parked. He had his car keys with him. As he came into the front yard, he was attacked by several people including Mayhall, who began beating Keesser. Holder and Bonds also attacked Keesser. Duane Baynard testified that as he was attempting to leave the party, he saw someone holding Keesser as Mayhall hit Keesser. As Baynard was starting his car, Holder slid across the hood. Baynard, who knew Keesser, observed Keesser with a group of people. As Baynard pulled his car out to leave, Keesser went to the left into the road along with Christine Lunsford and the others went to the right.
While the fights were progressing, another party guest, James Ford ("Ford") was sitting in a car with two friends smoking marijuana. The car windows were fogged up so Ford tried to exit the car only to be prevented by his friends. Eventually. Ford got out of the car. When he looked around he saw people running away and then noticed Chance "stomping" on Keesser's head. Keesser was located in the road in front of the neighbor's yard. Ford observed Chance stomp on Keesser's head approximately four or five times. During this time period Ford observed Bissette in the road with some people he did not recognize. Ford also saw Lunsford's neighbor, Joseph Desselle ("Desselle") yelling at everyone. Ford recalled seeing Christine Lunsford ("Christine") standing on the sidewalk yelling to Chance to stop kicking Keesser. Ford then jumped into Carter's car along with Cox, Carter, Carter's brother and another individual named Gary. As they were driving away, Ford observed Lunsford dragging/carrying Keesser out of the road. According to Ford, Carter drove the vehicle away and after driving a mile or so, they turned around and drove back past Lunsford's house where the police had already congregated. The group drove past Lunsford's house and ended up at Carter's house. Ford went to the police to give a statement on August 23, 1994.
Lunsford confirmed his role during the initial outbreak of violence inside the house. He attempted to go outside where he heard more fighting, however, his girlfriend, Tasha Holder and Tasha's mother, Dawn Maderios, were blocking the front door, so Lunsford exited the residence via a side door which led into the garage. When he got to the front yard, Lunsford observed Mayhall fighting with Gunser. Mayhall stopped this fight and proceeded down the driveway along with Holder and Bonds. At this time, Lunsford also stated he saw the Moffett brothers being roughed up. Bissette, according to Lunsford, then came over to him and punched him whereupon Lunsford hit Bissette back. Mayhall then proceeded to knock Bissette out. Eventually Lunsford saw Jason trying to get Bissette into their van. Bissette was groggy and was flailing his arms around as Jason tried to get him into the van. Lunsford looked around and saw his sister, Christine, in the road near Keesser who was being kicked in the head by Chance. Lunsford went over and pulled Keesser out of the street and began CPR with the assistance of Bruce Moffett. The police arrived and Lunsford was questioned. Initially, he omitted mentioning Chance's involvement because he was a good friend of more than ten years. Eventually, however, after Chance had been arrested, Lunsford gave a second statement to the police in which he implicated Chance.
Helen Cox ("Cox") was also at Lunsford's party. She was sixteen at the time and had gone with her then boyfriend, Cean Carter. Cox had left the party along with Carter, Ford and Carter's brother, as Lunsford and Bruce Moffett were administering CPR to Keesser. After initially leaving the group, they drove back past Lunsford's house and saw the police. They did not stop and proceeded home. Within 25 hours of Keesser's death, Cox, along with Carter went to the Dover Police Department to give a statement about what they had observed at the party.
According to the Supplemental Police Report filed with the Court during the pendency of this motion, Cox and Carter arrived at the Police Station just before midnight on Saturday, August 20, 1995. Cox spoke with Duty Officer Raymond Taraila at 12:03 a.m. on August 21, 1995. According to Sergeant Taraila's notes of the interview and his Supplemental Police Report, Cox stated that she arrived at Lunsford's around 4:00 p.m. on August 19, 1995 and left before the police arrived. She stated that as they came out of the house she observed Keesser lying face down in the roadway, bent over with his face between his legs. At first there was no one with the victim. Christina Lunsford went to Keesser to see if he was alright. At this point, Helen stated she saw Chance start "bouncing" his foot on Keesser's head while Keesser lay in the street. Chance was wearing "combat" type boots with a large metal ring. Christina pushed Chance away and Lunsford pulled Keesser to the sidewalk and began CPR. Carter stated he only observed Lunsford pull Keeser from the street as he had been involved in a separate fight.
After reviewing the trial transcript I noticed references to these documents and requested that the State supplement the record with Sergeant Taraila's notes and supplemental report.
At the time Helen initially went to the Police Department, none of the Officers assigned to the case were present. Consequently, she was asked to return the next day to give a more complete statement. On August 22, 1994 at 3:50 p.m. Cox returned, as directed, to the Police Station to give a typed statement. Cox told Detective Szramiak that she arrived at the party with Carter and was outside with Carter when they heard scuffling inside. On the way in Gunser (whom she described as "the guy with the black goatee and black curly hair") pushed her into a wall on his way outside. She stated that Lunsford and Carter went outside and Carter punched him. Next she stated "then Cean [Cean Carter] had some guy in a headlock, I don't know who it was cause I didn't see his face" (emphasis added). She stated the person who Carter had in the headlock was the person who allegedly had hit Holder's mother. While Carter had this person in a headlock, Lunsford punched him, then Carter let him go and "the guy got up. And he . . ." The Detective interrupted Cox. She proceeded stating:
Transcript of taped statement of Helen Cox, August 22, 1994, p. 2.
And then the guy that had fallen had gotten up and Duane [Baynard] was leaving, he was telling everybody to get out of his way cause he's not going to get into it . . . Duane left and as Duane was leaving I saw, I guess it was Michael Keesser, the one with the blond hair, fell from behind Duane's car and fell into the road. And then as I turned away and I looked back and the only one I saw over by the guy, Michael Keesser laying in the road was Jimmy Chance. And I turned back around after Christina had pushed Jimmy Chance off and turned back around and that's when [we] left.
Id. at 2-3.
Later during the interview she elaborated and described Chance's actions as, "stomping" on Keesser's head.
At Chance's trial, Cox testified that she arrived at Lunsford's at approximately 4:00 p.m. along with Carter. She also stated that her relationship with Carter had terminated prior to Chance's trial. Cox stated she knew Chance as a friend of Carter's and saw him when she arrived at Lunsford's. Chance appeared to have been drinking. Cox stated that Chance "wasn't really acting like himself. He was a little wild. He wasn't calm or anything. He was just wild." Cox testified that she observed Chance trying to pick a fight with Brian Funk.
Chance Trans., June 20, 1995, p. 56.
When the fighting began, Cox was sitting in the back yard and heard some noise inside. She and Carter and several other people tried to run inside to see what was happening. When they got to the door, Gunser came running out with a bloody nose and pushed her as he went by. At this point Lunsford came up yelling to everyone to "Get the guy." Caner asked who and Lunsford indicated Gunser. Cox tried to exit the front door, but was stopped by several women and girls, so she followed Lunsford out through the garage door. When she finally got outside, she observed Carter holding Gunser in a headlock and Lunsford hitting Gunser. When asked what she saw going on in the street, Cox replied:
Okay. Cean [Carter] dropped the guy from the headlock and then Josh Holder had come over there and Josh and Paul were kicking the guy and then Cean [Carter] moved Josh out of the way and he kicked the guy a few times and the guy got up because it was right in front of Duane's [Baynard] car and the guy got up and walked over to the sidewalk and Duane was yelling "Everybody get the hell out of the way I want to leave. I don't want nothing to do with this" . . . [Duane] was in his car and he had started his car and everything. He was getting ready to leave. Josh [Holder] slid over the hood of his car — like he was on the sidewalk. He slid over the hood of his car to the street where Paul was and he [Baynard] was just like 'Everybody get out of my way . . .'
Chance Trans., June 20, 1995, p. 65-66.
After watching Baynard's car pull away, Cox testified she saw "a guy" fall out from behind Baynard's car and into the street. Cox next began looking for Carter and first saw Mayhall up the driveway before noticing that Carter was standing next to her. Carter also saw Mayhall and pulled away from Cox to join him. Cox testified that:
I turned back around and I noticed Jimmy Chance was like jumping or whatever on this guy's head that was in the road and then next thing I noticed was Christina Lunsford ran over there and she had pushed Jimmy off and she was just yelling "somebody call an ambulance. Call 911. Call 911"
Chance Trans., June 20, 1995, p. 67-68.
Cox described Chance's actions as "kicking and bouncing" on Keesser's head. Keesser was cradled down with his hands on his head, face down. After Christina yelled for someone to call 911, Cox saw Lunsford go over and drag Keeser into the yard and start administering CPR. Cox estimated that Chance stomped on Keesser's head 10 to 15 times.
During cross examination, Chance's attorney spent a good deal of time questioning Cox about her activities in the days and hours following the death of Michael Keesser in order to suggest that she may have concocted her story along with Carter, Lunsford and Ford. On redirect, Cox testified that in addition to Chance, Carter was also wearing black boots at the party. She emphasized that while Chance was stomping on Keesser, Carter was on the lawn near the house watching Mayhall.
In addition to the party guests and police officers who testified, the jury heard from Lunsford's elderly neighbor, Joseph Desselle ("Mr. Desselle"). Mr. Desselle told the jury he had been watching some sporting events on TV when he heard a loud noise and his wife asked him to investigate. Mr. Desselle heard several people hollering "Kill the MF" and some yelling "Stop." When he opened the door for the first time he noticed a bunch of young men near his car hitting a young man. The victim backed up and at that point the victim was hit with a motorcycle helmet, and fell. The group then began kicking him. Mr. Desselle yelled to them to stop and said he was going to call the police. He went inside to call 911.
After a minute or so inside Mr. Desselle came outside a second time and yelled to the crowd that the police were coming. At this point everyone scattered. Two to three of the young men who had been attacking the victim jumped into a white car parked in the driveway. Mr. Desselle stated both at the trial and in his taped statement given the day of the murder, that two girls and two to three boys, young men, got into the white car. Other testimony at the trial showed the white car to be the one driven by Renee Slezak, which Chance testified he left in, along with Slezak, Madeline Isarry and Mayhall. Mr. Desselle testified at the trial that the first time he noticed Lunsford was after everyone else disbursed and he saw Lunsford attempting CPR on the victim. In his taped statement, however, he told the police that he had seen Lunsford in the yard but not participating in the beating. When Mr. Desselle saw Lunsford administering CPR he stated he went over and checked the victim's pulse which was nonexistent. Mr. Desselle then called 911 a second time to ask for an ambulance. Finally, Mr. Desselle returned outside and sat on his front steps waiting for the police, who came quickly. All the time he waited, Lunsford and Bruce Moffett were "working real hard" to resuscitate Keesser.
The tape was admitted into evidence at the trial.
In addition to the witnesses who testified as to the events of August 20th, the State called Brian Funk to tell the jury what Chance told him following his arrest. Funk stated that at some time during the Fall of 1994, Chance came to his house dressed in a suit carrying what appeared to be a stack of legal papers. Funk surmised that Chance had just been to Court or his attorney's office due to his dress. Chance proceeded to look at some "witness statements" and get mad. Funk testified that Chance "got mad because Paul Lunsford had said something against him, and Jimmy [Chance] got mad and he was like, well, I wasn't the only one out there and I wasn't the last one. He was like, well, Paul was out there." Chance also told Funk that "he wasn't the last person to kick the boy, and he said he wasn't the only one out there. He was mad because everyone was trying to blame him and he was not the only one."
Chance Trans., June 21, 1995, p. 72.
Chance Trans., June 21, 1995, p. 73.
At the trial, Chance testified in his own behalf. He stated he arrived at Lunsford's around 1:30 p.m. and began drinking. He claimed to have stopped drinking around 10:00 p.m. and to have consumed nine to ten beers and a couple of "shots." He recalled saying that he thought there would be a fight with the Keesser group because "there was tension." Concerning the incident with Jason Moffett, Chance claimed that it was Jason who was giving him dirty looks and provoking a fight. He claimed he had nothing to do with the fighting. Chance testified that when the fighting began he went outside and got in the white car because he was feeling sick. He claims to have exited the car when he saw Bissett punch Lunsford. When he did get out Bissett allegedly hit Chance. Chance told the jury that as a result of being hit by Bissett he was "pretty dazed and Madelline Isarry helped me to my car. I got in and put my head down because I was pretty dazed and wasn't feeling too good." Shortly after getting in the car for the second time, Madelline, Renee Slezak and Mayhall got into the car and they drove away. On cross-examination Chance denied using any illegal drugs that evening or telling Carter he was "crazy" and "tripping." Chance also claimed not to be looking for a fight and not to have been angry with Jason Moffett.
Chance Trans., June 27, 1995, p. 120.
Chance Trans., June 27, 1995, p. 130.
Based on the facts presented above, the jury found Chance guilty of Murder in the Second Degree. A few months after Chance's trial, several events occurred which ultimately led to the allegations in Chance's Postconviction Motion. After Chance's co-defendant James Bond pled guilty to Manslaughter in November, 1995, Cox went to Detective Harding in the Courthouse and stated she had additional information. Cox eventually gave a revised statement to the police on January 22, 1996. She stated she came forward because she "couldn't live with it anymore." Consistent with her trial testimony, she stated when she first came outside she saw Carter holding Gunser in a headlock and Lunsford and Holder punching Gunser. Gunser then fell and they began kicking him. Cox stated someone called her name and she looked away towards where Mayhall was attacking someone else. Next, she claimed she turned back and saw Carter holding Keesser in a headlock punching him with Lunsford and Holder walking towards Carter. This occurred near the shoulder of the road. Again someone called her name and Cox looked away. When she looked back Keesser was alone struggling to get up. She began looking for where Carter went. When she looked back again to Keesser she stated she saw Chance stomping on Keesser's head until Christine Lunsford pushed him off. Cox told Detective Harding that she did not see Carter kick Keesser or anyone else hit or kick Keesser besides Chance.
Statement of Helen Cox, January 27, 1996, p. 2.
Cox explained why she had not originally mentioned Carter's involvement. In the days following the party, everyone was discussing what happened and Lunsford was stating he never hit the "blond guy" 'i.e.' Keesser. Carter was saying he thought he had, but Lunsford insisted he hadn't and they had been hitting the Moffett brothers. Finally, she told Detective Harding that the only thing she didn't mention at Chance's trial was Carter's headlock and hitting Keesser.
Next, Cox testified at Holder's trial on March 4, 1996. Her testimony began consistent with her prior statements concerning the pre-fight activity and the action inside the house. Her testimony concerning the attack on Gunser was also consistent. She testified that after the beating of Gunser, Baynard came outside and went to leave. As Baynard was leaving, Holder slid across the hood of Baynard's car. As Baynard pulled out, Carter was near Baynard's car punching Keesser. Lunsford and Holder were walking towards Carter and Keesser. Someone called her name and she looked away. When she turned back, she observed Carter going towards Mayhall and Keesser laying in the road. Lunsford and Holder walked to the garage and Bissette punched Lunsford. Next Cox turned back to look at Keesser and saw Chance "stomping" on Keesser's head. Cox stated Christine Lunsford went over and tried to stop Chance. Everyone then left.
Bissette has blond, curly hair.
Finally, Ms. Cox made her last statement concerning the events of August 20, 1994 at the evidentiary hearing on this Motion. I was able to see her demeanor and candor for myself and found her testimony, particularly concerning Chance's involvement, compelling and sincere. The following is her story as told at the hearing.
Me, Cean [Carter] and some other people were sitting in the backyard. Everybody else was inside. We heard scuffling going on. We ran around. I went into the door. This guy had a beard, black hair, his nose was all bloody. He was running out the door the same time I was running in. He pushed me off to the side and I ran into like a wall and the kitchen counter. And then all the girls, ladies there piled in the front door and went and let Paul and Josh out. Supposedly, this guy had hit Josh Holder's mom.
Well, Cean [Carter] was still outside. Paul and Josh were both hollering, "Get that m.f.e.r." And Cean was like, "This one?" He said yes. So Cean ran over. The guy in the black hair was already gone. He was running across the street. Cean ran over. There was a blonde hair guy in the road. Like I said, at the time I did not know that that was Michael Keesser until I had seen a picture.
Cean grabbed him up underneath, under the arms and behind the neck. His arms were up. Josh and Paul went out the side door. I followed them out there, and that's how he was when we got out there. Josh and Paul was sitting there hitting the guy in the chest and the face. And then Cean said "I want a piece of him." Threw him down on the ground and they all started kicking him.
Paul was barefoot, Josh had on sandals, and Cean had on black boots, black combat boots. They pushed — Cean pushed Paul and Josh out of the way, said, "Let me get a piece." He started kicking him, and then that's when Duane [Baynard] came out and got in his car and was getting ready to leave. Josh and Paul — I'm sorry. Paul tried to stop Duane from leaving. Josh came running across — I don't know where he went afterward, but he came running across to Duane's car and slid across the hood. The guy in front was already up because when he pulled away, there was nobody there. At the time Cean was over next to me.
And then the next thing you know there was a whole crowd up by the next door neighbor's house by a tree, hitting on people. And that's where Mayhall was.
And then next thing I noticed was the car pulled away and then there's somebody stumbling out from behind Duane's car. And then that's when I seen Chance right before we were getting ready to leave. Chance was over there stomping on him and Christine Lunsford went over and pushed him away. And then he came back and started doing it again. Christine pushed him away again. Christine knelt down to the guy with blond hair, which was Mr. Keesser and was like, "Help me, help me, somebody call 911. Help me." At that time we were leaving. When Paul and Christine were picking the guy up, trying to get the guy up out of the road, that's at the time we left.
Transcript of Evidentiary Hearing, October 29, 1998, p. 67-69.
What is apparent from Ms. Cox's many recollections concerning the evening is that she has given bits and pieces throughout. At the hearing, she for the first time, did not mention Carter having Gunser in a headlock. For the first time, however, she described Carter kicking Keesser. One thing, however, is consistent throughout that being her description of Chance's involvement. Whether she forgot parts at different times or was trying to protect Carter or implicate him we may never know, but her testimony concerning the events of the party and Carter holding Keesser in a headlock along with her description of Chance's action is consistent with other testimony during the trial. Baynard's description of a man holding Keesser up as Mayhall punched him while Baynard went to leave matches Cox's description of Carter's actions. Additionally, I have reviewed the reports prepared by the Presentence Office prior to Bond's and Mayhall's sentencings. Each of these co-defendants told the Presentence Officer that they saw Chance stomping on Keesser immediately before Lunsford drug Keesser into the lawn and began CPR. Mayhall's account in particular was very helpful. He impressed the Presentence Officer with his forthrightness, leading the Officer to state that with Mayhall's account "we may finally know more about what actually happened that tragic evening." Mayhall's account of Carter's, Lunsford's and Chance's involvement is similar to Cox's final version of events.
Superior Court Criminal Rule 32(c)(1) allows the Court to disclose contents of a presentence report where the defendant has pled guilty. Additionally, 11 Del. C.., § 4322(a) vests the Superior Court with exclusive authority over the usage of presentence reports. Oney v. State, Del. Supr., 446 A.2d 389, 394-395 (1982); See also State v. Honie, Del. Super., No. 9711002501, 1999 WL 167733, Silverman, J. (Feb. 5, 1999) (Order).
Finally, in addition to the testimony and statements of those individuals who had the misfortune to attend Lunsford's ill-fated birthday party are the testimony and statements of Ernest, "Ernie" Gallo (" Gallo"). Gallo was several years older than most of the witnesses and participants. He was acquainted with Keesser, Holder, Lunsford, Chance and Carter. He had been invited to the party but never went. According to Gallo's two taped statements and his testimony at the hearing, some time after James Bonds pled guilty to Manslaughter in Keesser's death, Carter was at Gallo's house. Carter had been drinking and was upset and drunk. Carter apparently had been thinking about the night of the party and wanted to get something off his chest. According to Gallo, Carter told him that he, Carter, had been the first person to punch Keesser and that he had him in a headlock. Carter continued that Lunsford, Holder and Mayhall all kicked Keesser, after he had stopped. Carter also stated that Christine Lunsford pulled her brother off Keesser. Finally, Carter allegedly stated he never saw Chance around Keeser. Carter also testified at the evidentiary hearing and denied ever punching, kicking or in any way fighting with Keesser, or telling Gallo that he had.
Gallo gave his initial statement to John Garey, Esq., Deputy Attorney General, in late November or early December, 1995 and gave follow-up interviews to Detective Harding on January 18, 1996.
H. CHANCE'S CONTENTIONS
In his Motion and Amended Motion for Postconviction Relief, Chance raises the following grounds for relief.
Ground one: Chance's convictions should be set aside because of the alleged perjured testimony of Helen Cox.
Ground two: Trial counsel was ineffective when he failed to consult an expert pathologist on the cause of death.
Ground three: Trial counsel was ineffective for failing to adequately investigate exculpatory witnesses.
Ground four: Trial counsel was ineffective in failing to object to the jury instruction on "Accomplice Liability."
III. PROCEDURAL CONSIDERATIONS
Under Delaware Law the Court must first determine whether Chance has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claims. Under Rule 61 postconviction claims for relief must be brought within three years of the conviction becoming final. Chance's motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is Chance's initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either.Grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred unless the movant demonstrates: 1) cause for the procedural default, and 2) prejudice from a violation of the movant's rights. The bars to relief are inapplicable to a jurisdictional challenge or to a colorable claim of miscarriage of justice stemming from a constitutional violation that undermines "the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."
Super. Ct. Grim. R. 61(i)(3).
Super. Ct. Grim. R. 61(i)(5)
All of Chance's allegations, except his first, are premised on allegations of ineffective assistance of counsel. Chance's first ground for relief is premised on "newly discovered evidence" that being the alleged perjury of Helen Cox. Thus, Chance has raised counsel's ineffectiveness in three grounds for relief and alleged cause for failing to raise the remaining ground sooner. He has therefore alleged sufficient cause for not having asserted these grounds for relief at trial and on direct appeal. Claims based on ineffective counsel are not normally subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal. For this reason, many defendants, including Chance, allege ineffective assistance of counsel in order to overcome the procedural default.
However, this path creates confusion if the defendant does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. The United State Supreme Court has held that:
State v. Gattis, Del. Super., ID No. 90004567DI-R1, Barron, J. (Dec. 28, 1995) (Mem. Op.) at 8.
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the responsibility for the default be imputed to the State, which may not "conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance"; ineffective assistance of counsel then is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage in the two part analysis enunciated in Strickland v. Washington and adopted by the Delaware Supreme Court in Albury v. State.
466 U.S. 668 (1984) (" Strickland").
Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant show that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional error the outcome of the proceedings would have been different, that is, actual prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal.
Strickland at 687. See Dawson, 673 A.2d at 1190.
Id. at 694; Dawson, 673 A.2d at 1190; Skinner v. State, Del. Supr., 607 A.2d 1170, 1172 (1992).
Righter v. Stare, Del. Supr., 704 A.2d 262, 264 (1997); Younger v. State, 580 A.2d at 556; Robinson v. State, Del. Supr., 562 A.2d 1184, 1185 (1989); Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER); Kerchliner v. State, Del. Supr., No. 451, 1994, Holland, J. (June 21, 1995) (ORDER); Accord Wells v. Petstock, 941 F.2d 253, 259-60 (3rd Cir. 1991).
Generally, a claim for ineffective assistance of counsel fails unless both prongs of the test have been established. However, the showing of prejudice is so central to this claim that the Strickland court stated "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone. Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation."
Strickland at 687.
Id. at 697.
State v. Gattis, Supra, at 9.
Strickland at 689; Dawson, 673 A.2d at 1190; Wright v. State, Del. Supr., 671 A.2d 1353, 1356 (1996).
In the case at bar, Chance attempts to show cause for his procedural default in grounds two and three by making merely conclusory assertions activeness of counsel. Additionally, I find Chance's trial counsel affidavit concerning his trial preparation and strategy more creditable than Chance's allegations and ineffectiveness. In regards to prejudice as to those two grounds, I can discern no effort to make concrete allegations of actual prejudice or to substantiate said allegations of prejudice. These failures are fatal to Chance's Rule 61 petition and should result in summary dismissal of grounds two and three of his ineffective assistance of counsel claims.
See e.g. Wright, 671 A.2d at 1356; Skinner v. State, supra; Brawley v. State, Del. Supr., No. 372, 1992, Moore, J. (Oct. 7, 1992) (ORDER); Wright v. State, Del. Supr., No. 400, 1991, Walsh, J. (Feb. 20, 1992) (ORDER). See also, Dixon v. State, Del. Supr., No. 153, 1991, Holland, J. (Jan. 14, 1992) (ORDER).
Chance's fourth ground for relief is that his counsel was ineffective because he failed to object to the jury instruction given on accomplice liability. On direct appeal the issue of the lack of this jury instruction was raised. The Supreme Court gave an in-depth review of the issue ultimately finding that while the instruction should have been given the error did not amount to plain error. Therefore, under the Delaware Supreme Court's ruling in Skinner v. State Chance is precluded from establishing prejudice in his present postconviction claim of ineffective assistance of counsel as required by Strickland. I recommend that this ground for relief also be denied as procedurally barred.
Chance, supra at 359-360.
Del. Supr., 607 A.2d 1170 (1992).
Id. at 1171-1173.
Chance's remaining ground for relief will be discussed below.
IV. THE ALLEGED PERJURY OF HELEN COX
A. The Applicable Standard.
In Delaware, Courts have adopted the so-called "Larrison" test for determining whether a new trial is warranted based upon "newly discovered" evidence, where that evidence is alleged to be perjured testimony. The Larrison test 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. In this case there is no dispute that the third prong of the test has been met. I will therefore focus on the first and second prongs.
See State v. Chao, Del. Super., 1995 WL 412364, Gebelein, J. (Feb. 17, 1995).
Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928). See also Chao, supra at 2; Blankenship v. State, Del. Supr., 447 A.2d 428 (1982).
In this case, Chance has made two separate allegations of perjury against Cox, one directly and one indirectly. Directly, Chance argues that Cox lied during his trial when she stated that Carter was not involved in the beating of Keesser and by failing to mention Lunsford's alleged involvement. Also, by inference Chance has accused Lunsford and Ford of leaving out Carter's and Lunsford's involvement. Secondly, Chance, by inference has alleged that Cox, Lunsford, Ford and Christine Lunsford (who did not testify at Chance's trial) all lied about Chance's involvement. Specifically, Chance infers that these witnesses all got together and decided to say that Chance was involved in place of Lunsford, essentially giving a story with the names changed. I will deal with the two allegations separately as the amount of proof concerning the alleged perjury differs significantly.
B. Cox's Testimony Concerning Carter's Involvement.
Cox has testified three times under oath and given three additional statements concerning the events of August 20, 1994. Her testimony concerning events prior to the altercation and Chances s involvement have been consistent throughout. Cox's testimony concerning the involvement of her ex-boyfriend Carter has evolved over time. At Chance's trial and in her initial two statements to the police, she failed to say anything about Carter's involvement in the beating of Keesser. Several months after Chance's trial, for the first time, Cox mentions that Carter was involved. In her January, 1995 statement to the police, Cox stated that Carter's involvement was limited to placing Keesser in a headlock and punching him before leaving to join another altercation. She again stated that Carter's involvement was limited to holding Keesser in a headlock and punching him at Holder's trial. Finally, at the hearing, Cox eliminated Carter's involvement with Gunser and increased his role vis a vie Keesser, now having him involved not only in punching but kicking Keesser. She also claimed she saw Lunsford and Holder punching and kicking Keesser for the first time at the evidentiary hearing.
The State argues that Cox is a vindictive ex-girlfriend who is now implicating Carter to get back at him for leaving her when she became pregnant with his child. I find that while Cox's feelings towards Carter may have provided some of the motivation for her ultimate disclosure of his role and perhaps in her more "enhanced" version of Carter's role at the hearing, that she was telling the truth when she stated that Carter had some involvement in Keesser's beating. I base this find on Cox's hearing testimony; Gallo's testimony and his recitation of Carter's "confession" of his role; Mayhall's statements to the Presentence officer claiming that he saw Carter hit Keesser; and finally to the fact that Carter fits the description of the person Baynard claims to have seen holding Keesser in a headlock, as he went to leave the party. As to the extent of Carter's involvement, I find it more reasonable to believe that he had Keesser in a headlock and punched him prior to leaving to join Mayhall in another fight and that he did not kick Keesser.
The State argues secondarily, that even if Carter was involved, Cox never actually committed perjury because she was never specifically asked if Carter hit Keesser. While this argument would probably be persuasive were Cox ever charged with perjury, I do not find it so in this case. Cox did leave out, either intentionally or unintentionally, Carter's role in the assault on Keesser and to that extent did not give the jury the entire story.
Turning to the second prong of the Larrison test, I find that Chance has not shown that the jury "might" have reached a different result if Cox's trial testimony had been expanded to include Carter's, and or Lunsford's, involvement. In this case the State's theory was that Chance, along with his three identified co-defendants, beat up Keesser causing his death and that Chance was the primary actor. The jury heard that Bonds, Mayhall and Holder were involved, along with Chance, in beating Keesser. The jury also heard that Chance was the last person stomping on Keesser's head. Had the jury known that Carter had also been involved in beating Keesser it would have only been cumulative evidence and would not have resulted in an acquittal or a lesser verdict for Chance. I cannot conclude based upon my review of the record in this case, that the jury might have reached a different result had they known that a fifth or sixth person, i.e. Carter, and possibly Lunsford were also involved in Keesser's beating. The most compelling evidence against Chance was the witnesses' description of him stomping repeatedly on Keesser's head, as he lay huddled up in the street utterly defenseless. For these reasons, I recommend the Court deny this ground for relief.
C. Cox's Testimony Concerning Chance's Involvement.
Chance has indirectly alleged that Cox, Ford, Lunsford and Carter somehow decided to omit Lunsford's and Carter's involvement in Keesser's beating and replace Lunsford with Chance in their stories. The gravity of this allegation is that Chance is innocent and the others conspired to get him convicted and save Lunsford and Carter from prosecution. Obviously, if this allegation were true, Chance would be entitled to a new trial as it would clearly meet the second prong of the Larrison test. However, in order to reach the second prong the Court must be reasonably well satisfied that Cox, along with Ford and Lunsford, committed perjury when they testified that Chance repeatedly stomped on Keesser's head. The sole "evidence" that Chance puts forward to support his allegation is the testimony of Ernie Gallo. Gallo testified at the hearing that Carter, while drunk, told him that Christine Lunsford pulled her brother, Paul Lunsford, off of Keesser not Chance, as testified to by Cox, Ford and Lunsford.
There are several problems with Chance's argument. Initially, Cox testified at the hearing that Carter was not around when Christine pulled Chance off, therefore, it is conceivable that Christine pushed both her brother off and Chance off Keesser, if one were to believe Gallo's recitation of Carter's alleged drunken confession. Secondly, Gallo's statement is hearsay and directly contradicted by ?" Carter. Thirdly, Cox's statements are consistent from the day after the party through the hearing concerning Chance's involvement. I witnessed Cox's demeanor as she described Chance stomping Keesser's life out and find it credible. Fourth, Cox, Ford and Lunsford's testimony is bolstered by Funk's testimony at trial that Chance admitted kicking Keesser. Fifth, the statements of Chance's co-defendants, Bonds and Mayhall, made to the presentence investigator, corroborate Chance's Involvement in Keesser's death. Bonds told the officer he remembered seeing Chance stomping someone. Mayhall stated Chance had been using LSD and that he observed Chance kicking Keesser. According to Mayhall, after being pushed away, Chance stated "flick him, he got what he deserved." Finally, and perhaps most damming is Chance's own testimony. He claimed to the jury that he was simply at the party to have a good time and didn't want to get in any fights. He claimed it was everyone else who was acting aggressive and that he was just trying to avoid any trouble. Interestingly, Chance did not provide any witnesses to bolster his "story." Clearly the jury dismissed these self serving statements and found Chance's testimony unbelievable. Chance's version of his attitude and demeanor was simply at odds with nearly every single witness that testified at trial, not simply Cox, Ford and Lunsford. Adams, Funk, Jason Moffett, Cox, Lunsford, Ford, and Carter all testified that Chance had been trying to pick fights, and acting provocative and "crazy" all day long. The jury clearly found the other witnesses to be more credible on this point and chose to dismiss Chance's affirmations of innocence. After reading and re-reading the trial transcript and going through the complete record, I find it impossible to find that there is any credible evidence that Cox, Ford or Lunsford lied at Chance's trial concerning his involvement in Keesser's death. For this reason, I recommend the Court deny this ground for relief.
V. CONCLUSION
As to Chance's second, third and fourth grounds for relief, I find he has failed to overcome the procedural bars of Rule 61, specifically he has not shown the necessary prejudice under Rule 61(i)(3). As to the alleged perjury concerning Carter's involvement I find that: 1) the Court can be reasonably satisfied that Cox did not tell the jury the entire truth concerning Carter; and 2) that even with Cox's testimony about Carter, there is not any reasonable possibility that the jury could have reached a different conclusion. As to the alleged perjury concerning Chance's involvement, I conclude that there is no credible evidence that Cox or the other witnesses committed perjury when they testified that Chance was the final person to be stomping repeatedly on Michael Keesser's head that tragic evening in August 1994. For these reasons, I recommend that the Court deny Chance's motion for Postconviction Relief.