Opinion
I.D. No. 91009844DI.
Submitted: November 29, 2004.
Decided: February 28, 2005.
On Defendant's Fifth Motion for Postconviction Relief.
DENIED.Thomas E. Brown, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Christopher R. Desmond, Smyrna, Delaware.
ORDER
This 28th day of February, 2005, upon the fifth motion for postconviction relief filed by Christopher Desmond ("Defendant"), it appears to the Court that:
1. Defendant was convicted by a jury on November 9, 1992 of ten counts of Robbery in the First Degree, 11 Del.C. § 832, two counts of Conspiracy in the Second Degree, 11 Del.C § 512, ten counts of Possession of a Deadly Weapon During the Commission of a Felony ("PDWDCF"), 11 Del.C. § 1447, ten counts of Possession of a Deadly Weapon by a Person Prohibited ("PDWBPP"), 11 Del.C. § 1448, three counts of Theft (felony), 11 Del.C. § 841 and one count of Escape Third Degree, 11 Del.C. § 1251. These charges arose out of a series of robberies at three supermarkets committed in 1991 in northern New Castle County. The jury was unable to reach a verdict on two counts of Robbery in the First Degree, two counts of PDWDCF, two counts of PDWBPP, one count of Conspiracy and two counts of Theft (felony) stemming from an additional supermarket robbery and pharmacy robbery in 1990 and 1991 and a mistrial was declared as to those latter nine counts.
2. At the conclusion of the State's case, Defendant moved for a judgment of acquittal pursuant to Super. Ct. Crim. Rule 29(a) as to the twelve counts of PDWDCF and the twelve counts of PDWBPP on the grounds that 1) the alleged gun used during the various robberies was never recovered, 2) the alleged gun was never discharged during the robberies and 3) there was no testimony from anyone with personal familiarity with the alleged gun that it was in fact "real." The motion was denied, from the bench, after oral argument on October 30, 1992. Defendant renewed the motion after the close of all of the evidence on November 5, 1992 and it was again denied. The Court issued a post-trial opinion denying defendant's motion for judgment of acquittal on the twelve counts of PDWDCF and the twelve counts of PDWBPP on November 17, 1992.
3. Defendant's convictions have spawned much litigation. The Delaware State Supreme Court affirmed defendant's conviction on direct appeal on November 14, 1994 in Desmond v. State, 654 A.2d 821 (Del. 1994). A motion for rehearing was denied in December 1994. Defendant's first motion for postconviction relief was denied in State v. Desmond, 1995 Del. Super. LEXIS 508 aff'd, 692 A.2d 411 (Del. 1996). Defendant's writ of habeas corpus before the United States District Court for the District of Delaware was denied in Desmond v. State, 1999 WL 33220036 (D. Delaware 1999). Defendant's second motion for postconviction was denied in Desmond v. State, Del. Super., ID #91009844DI, Cooch, J. (Dec. 4, 2000), aff'd, 768 A.2d 468 (Del. 2001). In July 2001, this Court denied defendant's motion for a writ of habeas corpus. A Writ of certiorari was dismissed by the Delaware Supreme Court in In re Desmond, 782 A.2d 263 (Del. 2001). Defendant's appeal of the denial of his writ of habeas corpus was affirmed in Desmond v. Snyder, 788 A.2d 527 (Del. 2001). Defendant's third motion for postconviction relief was denied in State v. Desmond, 2002 Del. Super. LEXIS 481, aff'd, 818 A.2d 970 (Del. 2003). Defendant's fourth motion for postconviction relief was denied in State v. Desmond, 2004 Del. Super. LEXIS 120, aff'd 2004 Del. LEXIS 307. The Court notes that Defendant has made 11 motions to various courts since his conviction. Eight of those motions have been made after the three-year limit to file postconviction motions provided by Superior Court Criminal Rule 61.
4. Before addressing the merits of any claim raised in a motion seeking postconviction relief, the Court must first apply the rules governing the procedural requirements of Super. Ct. Crim. R. 61. Rule 61(i)(1) provides that "[a] motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court." Defendant's fifth motion for postconviction relief was filed approximately 10 years after his conviction became final and is therefore time barred under Rule 61(i)(1).
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) ( citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Super. Ct. Crim. R. 61(i)(1).
However, the procedural bar of Rule 61(i)(1) may potentially be overcome by Rule 61(i)(5), which provides that "[t]he bars to relief in paragraph (1) . . . shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."
In a recent case, State v. Smith, this Court held that "Rule 61(i)(1) and (5) both speak to an exception consisting of a newly recognized right, and [that] Rule 61(i)(5) acts as a general default provision." Defendant has presented a "colorable claim" in this fifith motion for postconviction relief. Therefore, this Court will, "in deference to the Defendant, and in a light most favorable to the Defendant . . . address the nature, applicability, and diminution of this right, as it pertains to the Defendant's case, within the constructs of Rule 61(i)(5)" and will, following Smith, "forego addressing the assertion of a newly created retroactive right within the purview of the constraints imposed by Rule 61(i)(1)." The procedural bars do not apply in connection with this fifth motion for postconviction relief for the reasons explained below.
State v. Smith, 2004 Del. Super. LEXIS 208 (holding that "[t]he `miscarriage of justice' or `fundamental fairness' exception contained in Rule 61(i)(5) is `[a] narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal") (quoting Younger, 580 A.2d 552 , 555 (citing Teague v. Lane, 489 U.S. 288 , 297-99, (1989)). Unlike the case at bar, the defendant in Smith had not physically manifested a weapon but implied he had a weapon by his actions (the defendant had his hand in his pocket as if he were armed). In Smith this Court decided the defendant's claim based on the application of amended § 832(a)(2) because it wanted to distinguish the amended § 832 from Walton because under the facts of Smith the defendant was potentially eligible for relief under the Walton standard.
State v. Smith, 2004 Del. Super. LEXIS 208 *13.
5. Defendant seeks to have five of his convictions for Robbery First Degree reduced to Robbery Second Degree and that he be sentenced accordingly. Defendant bases his motion on the Delaware Supreme Court's rulings in Word v. State and Walton v. State. In Word, the Delaware Supreme Court held that a bank teller's testimony that she thought the defendant had a weapon, because his note stated, "I am armed," did not establish that defendant had displayed what appeared to be a deadly weapon, and was thus unaccompanied by a physical manifestation of a weapon, a required element of first-degree robbery. In Walton, the defendant entered a bank and handed the bank teller a note that read, "I have a bomb. Give me all your money and no dye pack." The bank teller later testified that she did not see anything that appeared to be a weapon on the robber's person but that he did have his hand in his pocket, which scared her. Yet, there was no evidence that the hand in the pocket "appeared to be a deadly weapon." The Walton Court adopted a two-part analysis to examine the "displays" requirement in § 832(a)(2): (1) the victim must subjectively believe the defendant has a weapon; (2) the defendant's threat must be accompanied by an objective manifestation of a weapon.
Defendant's Fifth Motion for Postconviction Relief at 7.
Defendant also relies on two other cases, State v. Lawrence, ID No. 9706017912, Cooch, J. (April 29, 2004) and State v. Keith, ID No. 9904017767, Cooch, J. (May 14, 2003) for the proposition that this Court has reduced other Robbery First Degree conviction based on Walton; however, in both Lawrence and Keith the State consented to the reductions in convictions and this Court did not reach the merits of the defendants' claims in those cases.
State v. Smith, 2004 Del. Super. LEXIS 208 *19.
State v. Smith, 2004 Del. Super. LEXIS 208 *19-20.
Defendant claims a "newly recognized right" in that the State in his case did not present sufficient evidence to prove the "displays what appears to be a deadly weapon" element of 11 Del. C. § 832(a)(2). Defendant argues that three of the victims testified that they either did not know if the weapon displayed was real or that they did not believe the weapon was real and two of the victims were never called to testify. Defendant also argues that this Court should not follow State v. Smith by applying amended 11 Del. C. § 832(a)(2) as this would be a violation of the ex post facto clauses of the United States Constitution and the Delaware State Constitution.
The General Assembly amended § 832(a)(2), in reaction to Walton, by inserting the words "or represents by word or conduct that he or she is in possession or control of a deadly weapon" after the phrase "deadly weapon." However, given the Court's holding herein, the Court need not reach the ex post facto issues.
6. The State responds that Defendant has misapplied the Supreme Court's holdings in Word and Walton to his case. The State contends that Word and Walton are potentially applicable to cases where no weapon was physically displayed during the commission of the crime and where a defendant only alluded to, or implied that he or she was armed. The State argues that the statements attributed to three victims relied upon by Defendant do not support his argument because all three victims testified that they saw Defendant brandish a gun. The State contends that the fact that two of his robbery victims did not testify at trial does no his convictions because the sufficiency of evidence required to sustain a conviction under Delaware law does not require in-court testimony by a victim. The State also points out that the Delaware Supreme Court held in defendant's direct appeal that Defendant "appeared to possess [what] was, in fact a deadly weapon." The State contends that "the display element is satisfied even under the heightened definitional standard articulated in Walton."
Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
State's Answering Brief at 9.
7. The Court agrees with the State's analysis of the issues raised by this motion: "The evolving definition of `displays' under the holdings of Walton and Word . . . is simply inapplicable to [Defendant's] case." Victim Elizabeth Beatty testified that she saw defendant holding a handgun during the Stanton Shop-Rite robbery, stating that "it was a silver gun." Victim Linda Mikolaitis testified that she saw Defendant with a handgun during the Tri-State Thriftway robbery and described the gun as "small and silver." Victim Dale Moore testified that during the Stanton Shop-Rite robbery as he chased Defendant, Defendant pulled out a gun.
State's Answering brief at 8.
Oct. 26, 1992 Tr. at 76-91.
Oct. 28, 1992 Tr. at 9-18.
Oct. 29, 1992 Tr. at 15.
The Delaware Supreme Court has held that an actual physical manifestation of a weapon is sufficient to meet the "display" requirement of § 832(a)(2). Neither Word nor Walton changed that concept. In Defendant's direct appeal, the Delaware Supreme Court held that
Johnson v. State, 588 A.2d 1142 (Del. 1990) (holding that "a mere physical appearance [of a weapon] will suffice [to meet the requirements of § 832]").
[e]xamining the evidence presented in the light most favorable to the State, we find the circumstantial eyewitness testimony sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Desmond, in fact, possessed a deadly weapon. The record reflects that most of the witnesses viewed the weapon at close range and for extended periods of time. The substantial similarity of their detailed descriptions of the weapon enabled a rational trier of fact to conclude that what Desmond appeared to possess was, in fact, a deadly weapon.
Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
8. Thus, even under the Walton standard, Defendant's claim would still fail because Walton applied to cases where no weapon was physically manifested and victims only perceived the weapon indirectly through the defendant's actions or words. In the instant case, however, Defendant physically brandished a weapon during the commission of the crimes. All of the victims acted as though the gun was real and complied with Defendant's demands for money. None of the victims responded in a manner that would indicate that they seriously doubted the authenticity of the gun. Because the Walton applied only to cases where a weapon was not physically manifested, Defendant's claim is not amenable to an application of the Walton standard of § 832(a)(2).
9. This Court holds that Defendant is not entitled to postconviction relief based on a claim that the Supreme Court's holding in Walton v. State created a "newly recognized right." This Court holds that under whichever interpretation of § 832(a)(2) this Court were to use, the pre- Walton interpretation of § 832(a)(2), the Walton interpretation or the post-amendment § 832, Defendant's claim would still fail under any of the interpretations because the one constant between the three interpretation of § 832 is that even "[the] mere physical appearance [of a weapon] will suffice [to meet the requirements of § 832]."
For the forgoing reasons, Defendant's fifth motion for postconviction relief is DENIED.