Opinion
Case No. 30806137DI.
October 19, 2010.
ORDER
On this 19th day of October, 2010, upon consideration of Defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it is hereby ORDERED that Defendant's Motion is DENIED.
1. On September 21, 1989, Defendant was convicted of four counts of First Degree Unlawful Sexual Intercourse, two counts of First Degree Burglary, and one count of Unlawful Sexual Penetration arising from a May 1988 forced intrusion into an apartment building and rape of an occupant (the victim could not clearly see her attacker's face during the May incident) and a second similar incident in September 1988 where defendant told the victim that he would "f — [her] like he did the first time" and proceeded to perform various unwanted sexual acts. As this was occurring, a passerby heard screaming, called the police, and waited for the police. The police arrived, burst through the back door and interrupted defendant as he was attempting vaginal intercourse with the victim.
2. The defendant fled the apartment, the police and the passerby never lost sight of him, and he was captured by the police forthwith.
3. The victim, passerby, and police subsequently identified defendant.
4. The defendant testified at trial and posited that the victim selected him because he may have been a familiar face due to his acquaintanceship with her husband, presented an alibi defense as to the first incident, and alleged that he was jumped by the police as he was running home.
5. Defendant appealed his conviction and the Delaware Supreme Court affirmed his conviction and sentence in October 1990.
6. Defendant then filed a Motion for Postconviction Relief in July 1991. It was denied by the Superior Court and the denial was affirmed on appeal.
7. Defendant filed a second Motion for Postconviction Relief in May 1993. It was also denied by the Superior Court.
8. Defendant filed a Motion for Postconviction DNA Testing on two slides containing vaginal material taken from the victim. After denial, reversal and remand, a hearing was held and the Superior Court granted the request for DNA testing.
9. Defendant was represented by counsel and an attorney from the Innocence Project. In December, 2007, Defendant was informed by letter that testing was completed, yielded no results, and that the entire sample had been consumed. In January 2008, he was told that the case was being closed. In October, 2008, an Innocence Project attorney informed the court that the case was closed.
10. Two years and eight months after receiving the DNA notification, Defendant filed the instant Motion for Postconviction Relief on August 23, 2010, alleging ineffective assistance of counsel for not pursuing his innocence claim based on newly discovered evidence; prosecutorial misconduct and due process violation (because the State did not notify the Court concerning the DNA test results and the "truly persuasive evidence of innocence"); and a violation of due process because the Court did not rule on the DNA test results that were favorable to him.
11. The Court referred this Motion to Superior Court Commissioner Parker pursuant to 10 Del.C. § 521(b) and Superior Court Rule 62 for proposed finds of fact and conclusions of law.
12. On September 22, 2010, the Commissioner filed a Report and Recommendation that the Court deny Defendant's Motion for Postconviction Relief including that Defendant's Motion was time-barred pursuant to Super. Ct. Crim. R. 61(i)(1) because Defendant had one year to file said Motion after learning of the DNA results.
13. The Commissioner also found that the Defendant did not provide argument to support (nor did the record support) a claim of miscarriage of justice and that Defendant's ineffective assistance of counsel claim at the postconviction stage was inapplicable.
14. Additionally, the Commissioner recommended that Defendant's Motion be summarily dismissed because the Motion lacked merit. The DNA testing yielded no results — hence it was neither favorable nor unfavorable to the Defendant or the Prosecution. In the first incident, any vaginal material was limited because the victim had washed herself and changed clothes after the rape and in the second incident, the Defendant was interrupted before there was vaginal penetration.
15. After careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation of September 22, 2010,
It is ORDERED, that the Commissioner's Report and Recommendation is adopted by this Court and that Defendant's Motions for Postconviction Relief is DENIED.