Opinion
C.A. No. 02M-08-001 HDR.
August 4, 2003.
Upon Petition for Return of Property.
Stephen R. Welch, Jr., Esq., Deputy Attorney General, Dover, Delaware, for the State of Delaware.
Gary A. Crawford, pro se.
ORDER
On this 4th day of August, 2003, upon consideration of Gary Crawford's Petition for Return of Property, the Commissioner's Report and Recommendation, and the record in this case, it appears that:
(1) Petitioner Gary Crawford ("Petitioner") filed a Petition for Return of Property pursuant to 16 Del. C. § 4784 and Superior Court Civil Rule 71.3. The property sought to be returned is one multi-colored blanket; one blue hard hat and safety glasses; eighteen assorted VHS tapes; one Polaroid land camera; one blue Dallas Cowboy's pillow; and one set of electrical wire probes seized by the Delaware State Police on November 18, 2000. The matter was referred to a Superior Court Commissioner for findings of fact and recommendation pursuant to 10 Del. C. § 512(b) and Superior Court Civil Rule 132.
(2) The Commissioner has filed a Report and Recommendation that the Court deny the petition to return the following items, as property validly seized and used in the commission of a crime per 11 Del. C. § 2311(a)(2); the multicolored blanket; the blue hard hat and safety glasses; the Polaroid land camera; the Dallas Cowboy's pillow; and the electrical wire probes. The Commissioner also recommends that the Court grant the petition to return the 18 VHS tapes unless the State can provide the Court with a factual basis for denying the return within ten (10) days of this Order. The State has not objected to the return of the tapes.
NOW, THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated July 8, 2003;
IT IS ORDERED that:
(A) The well-reasoned Commissioner's Report and Recommendation is adopted by the Court;
(B) The petitioner's Petition for Return of Property is GRANTED as to the 18 VHS tapes and in all other respects it is DENIED.
COMMISSIONER'S REPORT AND RECOMMENDATION
FREUD, Commissioner
July 8, 2003
Gary A. Crawford ("Petitioner") has filed a Petition for Return of Property pursuant to Superior Court Civil Rule 41(e). The property sought to be returned is one multi-colored blanket; one blue hard hat and safety glasses; eighteen assorted VHS tapes; one Polaroid land camera; one blue Dallas Cowboy's pillow; and one set of electrical wire probes seized by the Delaware State Police pursuant to a search warrant issued on November 18, 2000. The Petition was referred to the Court Commissioner pursuant to Superior Court Civil Rule 132(a)(3). For the reasons below, I recommend the Petition be denied.
The petitioner was indicted on one count of Rape in the First Degree, one count of Rape in the Second Degree, two counts of Sexual Exploitation of a Child, ten counts of Possession of Child Pornography and two counts of Endangering the Welfare of a Child. At the time of his arrest, the items in question were seized by the police as evidence against the defendant. On June 1, 2001, the petitioner pled guilty to one count of Rape in the Third Degree and two counts of Sexual Exploitation of a Child as a result of a plea bargain with the State. He was subsequently sentenced to nine years incarceration. The victims of the offense were the petitioner's two nieces who were ages six and seven at the time of the offenses.
Among the charges against the petitioner were that he had his young niece pose in the nude wearing some of the items and sitting on or resting on the other items petitioner now seeks to have returned. At the petitioner's preliminary hearing, Detective William Porter, of the Delaware State Police, testified that the two victims explained that their uncle, the petitioner, had been babysitting for them. After making the girls dinner, the petitioner gave the victims a bath and told them not to get dressed. Instead he had the young victims go into his bedroom where he used the Polaroid camera in question to take a variety of erotic photographs of the girls in the nude wearing the hard hat and safety glasses while laying on the blanket in question along with the Cowboy's pillow at issue. Nine of the ten photographs seized graphically showed the victim's genitalia. Clearly the blue hard hat, the safety goggles, the multicolor blanket, the Cowboy's pillow and the Polaroid camera were all used in the commission of the crimes for which the petitioner pled guilty. As such they are subject to be disposed of as this Court directs pursuant to 11 Del. C. § 2311(a)(2). The State is requesting that these items along with the electrical wire probes be forfeited to the State. I recommend that the Court grant the State's request for forfeiture and deny the Petitioner's motion for return of these items.
Turning to the 18 VHS tapes that were seized, in its reply, the State was not sure why the tapes were seized and as such did not have a position regarding the forfeiture of the tapes. I recommend that unless, within 10 days of this order, the State provides the Court with some facts that would indicate that the tapes should also be forfeited, that the tapes be returned to the Petitioner.
In conclusion, I recommend that the Court deny the petition to return the following items, as property validly seized and used in the commission of a crime per 11 Del. C. § 2311(a)(2); the multicolored blanket; the blue hard hat and safety glasses; the Polaroid land camera; the Dallas Cowboy's pillow and the electrical wire probes. I also recommend that the Court grant the petition to return the 18 VHS tapes unless the State can provide the Court with a factual basis for denying the return within ten (10) days of this Order.
Commissioner Andrea M. Freud