Opinion
ID No. 0203014277.
Submitted: September 8, 2006.
December 20, 2006.
Demaris H. Walker, SBI No., Delaware Correctional Center, Smyrna, Delaware.
John F. Brady, Esquire, Brady, Richardson, Beauregard Chasanov, Georgetown, DE.
James W. Adkins, Esquire, Department of Justice, Georgetown, DE.
Dear Mr. Walker and Counsel:
This is my decision on Demaris H. Walker's ("Walker") motion for postconviction relief. The charges against Walker arose out of the rape of Ruby Wilson ("Wilson") by Walker and his co-defendant, Carlton Harding ("Harding"). Wilson was alone in her apartment and getting ready for bed when she heard a knock on her door. Wilson opened her front door slightly. She saw Harding standing in front of her door and Walker standing in front of her neighbor's door. Walker pushed Wilson's door open, causing her to fall to the floor. Walker and Harding then entered Wilson' s apartment. Walker pulled Wilson off of the floor and dragged her into the bedroom, while Harding searched her apartment for money. Walker then instructed Harding to hold Wilson's legs open while he raped her with his fingers, a water bottle covered with a condom and a shaving cream can. After Walker finished, Wilson managed to push the emergency call button on her walker, causing Walker and Harding to run out of the apartment and flee in Wilson's car. Harding returned to Wilson's apartment to collect evidence that he and Walker had left behind. The police caught Harding in Wilson's apartment with a bag containing a condom wrapper and a shaving cream can. The police found the condom-covered water bottle in Wilson's bedroom. Harding originally told the police that he saw some people leaving the scene in Wilson's car. He then t old the police that he and a man named Stephen Wilz committed the crimes. Harding finally told the police that his first two versions of the events were lies and that he and Walker committed the crimes.
Harding pled guilty to Rape in the Second Degree and Attempted Robbery in the First Degree and testified against Walker at trial. Walker was convicted of three counts of Rape in the Second Degree and one count each of Burglary in the First Degree, Attempted Robbery in the First Degree, Theft of a Senior, and Conspiracy in the Second Degree. The Delaware Supreme Court upheld Walker's convictions on December 18, 2003. Walker filed his motion for postconviction relief on January 24, 2006. This is Walker's first motion for postconviction relief and it was filed in a timely manner.
Demaris Walker v. State of Delaware, Del. Supr., No. 214, 2003, Berger, J. (December 18, 2003) (ORDER).
Walker alleges that (1) Brady's representation was deficient, (2) alternate juror number two should not have been seated, (3) testimony regarding Wilson's apartment key should not have been admitted, (4) Harding committed perjury, (5) the police lacked probable cause to search his home, and (6) the three rape convictions subjected him to double jeopardy. Walker was represented at trial and on appeal by John F. Brady, Esquire ("Brady"). The State of Delaware (the "State") was represented by James W. Adkins, Esquire ("Adkins"). Brady and Adkins filed affidavits in response to Walker's motion.
Ineffective Assistance of Counsel
Walker alleges that Brady failed to (1) conduct an adequate pretrial investigation and prepare for trial, (2) file pretrial motions, (3) conduct tests on certain pieces of evidence, (4) interview all of the witnesses, (5) object to testimony regarding Wilson's apartment key, (6) retain an expert witness, (7) impeach Harding's credibility, (8) raise certain issues on appeal, and (9) discuss trial strategy. The United States Supreme Court has established the proper inquiry to be made by courts when deciding a motion for postconviction relief. In order to prevail on a claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, the defendant must engage in a two-part analysis. First, the defendant must show that counsel's performance was deficient and fell below an objective standard of reasonableness. Second, the defendant must show that the deficient performance prejudiced the defense. Further, a defendant "must make and substantiate concrete allegations of actual prejudice or risk summary dismissal." It is also necessary that the defendant "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.'" There is no procedural bar to claims of ineffective assistance of counsel.
Strickland v. Washington, 466 U.S. 668 (1984).
Strickland, 466 U.S. at 687.
Id. at 687.
Id. at 687.
State v. Coleman, 2003 WL 22092724 (Del.Super.Ct.).
Coleman, 2003 WL at *2, quoting Strickland, 466 U.S. at 689.
Coleman, 2003 WL at *1, citing State v. Johnson, Del. Super. Ct., Cr. A. No. 97-10-0164(R1), Graves, J. (August 12, 1999) at 2; State v. Gattis, Del. Super. Ct., Cr. A. Nos. IN90-05-1017 to 1019, Barron, J. (December 28, 1995) at 7, aff'd, 637 A.2d 1174 (Del. 1997).
1. Investigation
Walker alleges that Brady failed to conduct an adequate pretrial investigation and prepare for trial. This case, while very serious, was relatively simple. Wilson, Harding and Walker were the only witnesses to the crimes. Harding confessed to his role in the crimes and testified against Walker at trial. Wilson testified that two black males, one tall and one short, broke into her apartment and raped her. Harding is 6'5" tall. Walker is 5'11" tall. The police found Wilson's driver's license in a jacket in Harding's apartment. Harding testified at trial that Walker gave it to him. The police found Wilson's key ring and a "Lifestyles" condom wrapper in Walker's apartment. The police also found a "Lifestyles" condom wrapper in Wilson's apartment. The police found Wilson's car near the Georgetown Apartments. Walker lived in the Georgetown Apartments. Thus, Walker was linked to the crimes by the testimony of Wilson and Harding and certain evidence found in his home. Walker testified that he did not rape Wilson and was not even with Harding at the time. Brady was aware of the facts of the case, as evidenced by his examination of the witnesses at trial. Walker does not state with any specificity what Brady should have done differently to be better prepared for trial.
2. Pretrial Motions
Walker alleges that Brady should have filed pre-trial motions to "test" the State's evidence. His only specific complaint is that Brady should have requested an evidentiary hearing on the State's effort to link Walker to the crimes by showing that he had gone into Wilson's apartment and stolen things before he raped her. Brady did object to the admission of this evidence. However, the Court conducted a Getz analysis and concluded that this evidence was admissible. Walker also unsuccessfully raised this issue in his appeal to the Supreme Court.
Getz v. State, 538 A.2d 726 (Del. 1998).
On direct appeal, Walker alleged that this Court erred by not holding an evidentiary hearing regarding the prior bad act. The Supreme Court found no plain error in this Court's determination not to hold an evidentiary hearing. Additionally, Walker contended that the Court erred in finding the probative value of the bad act outweighed prejudicial value. The Supreme Court found this argument to be without merit as well. Demaris Walker v. State of Delaware, Del. Supr., No. 214, 2003, Berger, J. (December 18, 2003) (ORDER).
3. Testing
Walker alleges that Brady should have performed testing on Wilson's driver's license, the zip lock bag and a hair. Wilson's driver's license was found in a zip lock bag with her name on it in Harding's apartment. The hair was found in Wilson's vagina. The police tested the zip lock bag, but were unable to get any fingerprints off of it. It would have been repetitive and unnecessary for Brady to test it again. Harding testified that Walker gave Wilson's driver's license to him. Testing the license would not have provided any basis to contradict this testimony. Walker argues that testing the hair would have undermined the rape charges. Harding testified that he saw Walker rape Wilson with his fingers while wearing a condom over them. Testing the hair would not have provided any basis to contradict this testimony. In any event, there was no scientific evidence linking the driver's license, zip lock bag and hair to Walker. Thus, there is no reason to believe that further testing on these items was going to be helpful to Walker.
4. Witnesses
Walker alleges that Brady failed to interview all of the witnesses he requested. However, Walker does not identify anyone Brady should have interviewed. He also does not state what their testimony would have been. Brady says that he interviewed all of the witnesses requested by Walker. There is no reason to believe otherwise.
5. Evidence
Walker alleges that Brady should have objected to testimony regarding Wilson's apartment key. Wilson's key ring was found in Walker's bedroom. A police officer testified that Wilson's apartment key was on the key ring. Wilson testified that it was not. Walker argues that Brady should have checked to see if the key in question fit Wilson's apartment door. Brady pointed out the discrepancy between the testimony over the apartment key. The relevancy of the key ring was that it linked Walker to the crimes against Wilson. Given that Walker and Harding forced their way into Wilson's apartment, whether or not Wilson's apartment key was on the key ring was irrelevant.
6. Expert Witness
Walker alleges that Brady should have retained an expert witness. Walker does not explain what kind of expert should have been retained and how it would have made a difference. Walker was linked to the crimes through the testimony of Harding and Wilson and Wilson's property that was found in his apartment. It is not clear how an expert could have helped Walker.
7. Harding's Credibility
Walker contends that Brady should have challenged Harding' s credibility. Brady did attack Harding's credibility through cross-examination. He repeatedly emphasized the fact that Harding gave a number of conflicting statements to the police. The issue of credibility was for the jury to assess. Brady did all that he reasonably could be expected to do. The jury simply believed Harding.
8. Appeal
Walker alleges that Brady failed to raise certain issues on appeal. Walker's only specific complaint involves alternate juror number two. I addressed this issue at trial and concluded that Walker's argument had no merit.
9. Trial Strategy
Walker alleges that Brady failed to discuss the case or trial strategy with him. This allegation is unfounded. Walker was linked to the crimes largely by Harding' s testimony. Brady's strategy was to attack Harding's credibility and point out inconsistences in the State's case. Walker's defense was that he was not present with Harding and did not commit any crimes against Wilson. He took the stand and testified to this. Thus, his defense and testimony were consistent with Brady's strategy. It was not possible for Brady to have tried this case without discussing it with Walker.
In summary, I have concluded that Brady's representation of Walker was not deficient and did not fall below an objective standard of reasonableness.
Other Claims
All of Walker's other claims could have been raised on appeal and are, therefore, procedurally barred pursuant to Rule 61(i)(3) unless Walker is able to show cause for relief from the procedural bar and prejudice as a result of any violation of his rights. However, "this bar to relief does not apply 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." Therefore, in order to avoid the procedural bar of Rule 61 (i)(3), Walker must show that there was some external impediment that prevented him from raising his claims and that there is a substantial likelihood that if his claims had been raised on appeal, the outcome would have been different. Walker has offered no explanation, other than blaming Brady, for his other claims not being raised on appeal. Having concluded that Brady's representation of Walker was not deficient, the responsibility for not raising these other claims rests with Walker. Moreover, Walker has not established there was a substantial likelihood that if his other claims had been raised on appeal, the outcome would have been different.
Outten v. State, 720 A.2d 547, 556 (Del. 1998).
Outten, 720 A.2d at 556, citing Super. Ct. Crim. R. 61(i)(5).
Flamer v. State, 585 A.2d 736,748 (Del. 1990).
Walker alleges that alternate juror number two should not have been seated because she heard that Stephen Wilz had been arrested for the crimes. I addressed this issue at trial and concluded that there was no problem with her serving on the jury. Walker alleges that the police officer's testimony that a key found in Walker's bedroom fit Wilson's apartment door should not have been admitted. I addressed this argument previously in this decision and concluded that there was no merit to it. Walker alleges that the State knowingly used Harding's perjured testimony. This is not true. Harding told at least three versions of what happened. Adkins and Brady knew this. Harding's testimony was consistent with the last version that he gave to the police. It was also consistent with Wilson's testimony and the other evidence. Thus, if anything, it appears that Harding's testimony was truthful. Walker alleges that the police did not have probable cause to obtain the warrant to search his bedroom. Probable cause is a "practical nontechnical" concept that must be measured by the totality of the circumstances. Probable cause "lies between suspicion and sufficient evidence to convict." The affidavit of probable cause used to obtain the search warrant was based on Harding's confession, which implicated Walker. This was sufficient to establish probable cause. Walker alleges that he was subjected to double jeopardy because the three rape charges were, in his view, only one crime. Walker raised this argument unsuccessfully in his direct appeal to the Supreme Court. There is simply no merit to any of Walker's other claims.
Gardner v. State, 567 A.2d 404, 409 (Del. 1989).
Thompson v. State, 539 A.2d 1052, 1055 (Del. 1988).
CONCLUSION
Walker's motion for postconviction relief is denied.