Opinion
C.A. No: 9603000529
Submitted: October 13, 2000
Decided: November 15, 2000
On Defendant's "Motion to Access the Evidence for Purposes of DNA Testing." DENIED.
Dear Mr. Wallace and Mr. Washington:
Pending before this Court is Defendant's August 31, 2000 Motion to Access the Evidence for Purposes of DNA Testing. The State has filed a Response in opposition to the Motion. For the reasons set forth below, Defendant's "Motion to Access the Evidence for Purposes of DNA Testing" is DENIED.
Summary of Facts and Procedural History
On April 31, 1998 Defendant was convicted after a trial of two counts of Unlawful Sexual Intercourse First Degree, one count of Unlawful Sexual Contact Second Degree and one count of Unlawful Sexual Penetration Third Degree. The charges against Defendant involved sexual assaults against his then eight-year-old daughter. The victim reported the incidents to her mother after observing a television commercial. The victim, her mother, and the examining physician testified at Defendant's trial. The examining physician testified that the evidence was inconclusive as to manifestations of sexual abuse. Defendant denied that the assaults ever occurred. As the Supreme Court noted in Defendant's appeal, Defendant's tactic at trial appeared to be an attempt to portray his former wife as vengeful.
Trial Transcript at 57, State v. Washington, Cr. ID. No. 9603000529, Cooch, J. (Apr. 29 30, 1998).
For a more detailed summary of the facts of Defendant's trial, see Washington v. State, Del. Supr., No. 421, 1998, 2000 WL 275638, Walsh,Id, at ¶ 1(Mar. 3, 2000) (ORDER).
This Court sentenced Defendant on September 18, 1998 to serve 70 years at Level 5 for the two Unlawful Sexual Intercourse First Degree charges; 2 years at Level 5 for the Unlawful Sexual Penetration Third Degree charge; and 2 years at Level 5 for Unlawful Sexual Contact Second Degree suspended after one year to one year at Level 4.
On appeal to the Supreme Court Defendant asserted three claims of plain error: (1) admission of evidence of Defendant's abusive conduct toward his former wife; (2) admission of bad character evidence depicting the "stormy relationship" of Defendant and his former wife in the State's case-in-chief; and (3) insufficient evidence to convict as to the charge of Unlawful Sexual Contact. The Supreme Court affirmed Defendant's conviction and rejected all three claims of plain error. Defendant also filed a Motion for Postconviction Relief on July 20, 1999. That motion was denied by this Court due to lack of jurisdiction. Defendant subsequently filed this motion.
Washington v. State, Del. Supr., No. 421, 1998, 2000 WL 275638, Walsh, J. at ¶ 1(Mar. 3, 2000) (ORDER).
Id at ¶ 6.
Letter from Richard R. Cooch, Resident Judge, to Kevin Washington, Defendant (Aug. 18, 1999) (letter denying Defendant's claim for Postconviction Relief).
Requirements for a Motion Requesting the Performance of Forensic DNA Testing Pursuant to 11 Del. C. § 4504 .
The requirements for a Motion Requesting the Performance of Forensic DNA Testing flow from 11 Del. C. § 4504 (a). This newly enacted statute states in pertinent part:
The effective date of this statute was September 1, 2000.
(a) Except at a time when direct appellate review is available.. . a person convicted of a crime may file in the court that entered the judgement [sic] of conviction a motion requesting the performance of forensic DNA testing to demonstrate the person's actual innocence. . . . The motion may be granted if:
(1) the testing is to be performed on evidence secured in relation to the trial which resulted in the conviction; and
(2) the evidence was not previously subject to testing because the technology for testing was not available at the time of the trial; and
(3) the movant presents a prima facie case that identity was an issue in the trial; and
(4) the movant presents a prima facie case that the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been substituted, tampered with, degraded, contaminated, altered or replaced in any material aspect; and
(5) the requested testing has the scientific potential to produce new, non-cumulative evidence materially relevant to the person's assertion of actual innocence; and
(6) the requested testing employs a scientific method which is generally accepted within the relevant scientific community, and which satisfies the pertinent Delaware Rules of Evidence concerning the admission of scientific testimony or evidence.
As the State has noted, Defendant must satisfy each one of the six requirements in order for this Court to grant his Motion. Because the statute's requirements are stated in a conjunctive manner, failure to satisfy any one of the six paragraphs of § 4505(a) precludes the requested remedy of DNA testing. As is evident from Defendant's motion Defendant's application falls short of satisfying at least four of the necessary requirements.
State's Response at 3.
11 Del. C. § 4505 (a); see also State v. Klosowski, Del. Supr., 310 A.2d 656, 657 (1973) (stating that "[a]nd" is a connective, in its commonly accepted meaning, and is not generally used to express an alternative — unless it is followed by words which clearly indicate that intent).
Defendant's Motion in its entirety reads: Comes now defendant Kevin Washington Pro Se to move this Court to Grant this Motion. In support of Motion defendant supports the following: 1) Examination of alledged [sic] victim by a medical expert: found no obvious evidence of sexual abuse/penetration. 2) Blood work and test were performed on alledged [sic] victim and DNA testing will prove defendants innocence: State v. Thomas 586 A.2d 250 (1991). 3) The testing would provide newly discovered evidence that would provide conclusive proof that a different verdict would have been reached: Wilkes: State Post-conviction remedies and relief 1-13 at 31-32 (1996) (d) 1-13 at 30-32 and Wilkes Supra. [sic] app. B at 905[.] (This Court is uncertain as to what legal authority to which Movant is referring).
In Defendant's case, there was no relevant physical evidence produced at trial which could be subjected to DNA forensic testing. The State asserts that biological samples or similar evidence were not collected from Defendant because this was a "late report" case by a child victim. At trial, Defendant did not contest the identity of the person who assaulted his daughter. Defendant merely denied the assaults occurred." Defendant claimed the charges were false and prompted by a vindictive former wife. Defendant has not thus identified "evidence secured in relation to the trial" which could be tested for relevant DNA findings as required by 11 Del. C. § 4505(a)(1).
State's Response at 2 (noting that the eight-year-old child first reported the offenses to her mother "weeks" after the offenses occurred).
Washington, 2000 WL 275638, at *1.
Id.
Additionally, Defendant's trial occurred at a time when DNA forensic testing was available and admissible in the courts of Delaware. Defendant's trial occurred in April 1998. DNA testing technology has apparently been admissible in Delaware since at least 1989. DNA testing was available when his trial occurred. Defendant therefore fails to satisfy the requirement of 11 Del. C. § 4504(a)(2).
See State's Response at 4.
Mistaken identity is another crucial component to this statute. Identity must be an issue for a movant successfully to argue application of this statute. At Defendant's trial, identity was not an issue. To the contrary, Defense counsel stated at trial, "Judge, identification is not an issue. We stipulate that Mr. Washington is obviously the father of this young lady." Defendant simply denied that his daughter was sexually abused. In support of that contention, Defendant claimed his former wife prompted the charges in a vengeful effort to "get rid of Defendant." Because the identity of the sexual offender was not an issue in Defendant's trial, Defendant has failed to allege proper grounds for relief under 11 Del. C. § 4505(a)(3).
"The motion may be granted if... the movant presents a prima facie case that identity was an issue in the trial. . . ." 11 Del. C. § 4505(a)(3).
Trial Tr. at 59-60.
Id.
State's Response at 4.
Lastly, Defendant cannot prove a proper chain of custody pursuant to 11 Del. C. § 4505 (a)(4). Since Defendant has proffered no relevant evidence that could be tested, Defendant cannot "present a prima facie case that the evidence to be tested has been subject to a chain of custody sufficient to establish that the evidence has not been substituted or tampered with." This Court finds the requirement of 11 Del. C. § 4505(a)(4) to be insufficiently satisfied by Defendant.
11 Del. C. § 4505(a)(4).
Defendant has not proffered sufficient grounds to claim relief under this statute. In not meeting all the necessary requirements of 11 Del. C. § 4505, Defendant's Motion is DENIED.
IT IS SO ORDERED.