Opinion
ID No. 9604003355
Date Submitted: August 30, 2002
Date Decided: October 31, 2002
Upon Defendant's Motion for Postconviction DNA Testing: DENIED. Cr.A. No. IN96-05-0389R1, IN96-05-0390R1,
ORDER
Upon review of Movant David A. White ("Defendant")'s Motion for Postconviction Relief and the record, it appears to the Court that:
1. Defendant filed a Motion for Postconviction DNA Testing pursuant to 11 Del. C. Section 4504.
2. On August 22, 1997, Defendant was convicted by a jury of Murder in the first degree and Possession of a Deadly Weapon during the commission of a felony. On November 7, 1997, Defendant was sentenced to life in prison without the possibility of parole for the Murder in the first degree charge (IN96-05-0389) and to five years Level V for the Possession of a Deadly Weapon during the commission of a felony charge (IN96-05-0390). Defendant's convictions were affirmed on direct appeal to the Delaware Supreme Court.
See generally, White v. State, Del. Supr., 723 A.2d 398 (1998).
3. The Delaware Supreme Court has held that in reviewing motions for postconviction relief, this Court must first determine whether a defendant's claims are procedurally barred prior to considering them on their merits. Section 4 of 72 Del. Laws, c. 320 provides that: ". . . Any motion filed pursuant to the provisions of § 4504(a) of Title 11 as promulgated by § 3 of this act by any person whose judgement of conviction is final prior to September 1, 2000, may not be filed after September 1, 2002." Defendant's motion was filed on August 30, 2002 which is in compliance with the time limitations provided by 11 Del. C. § 4504. The court has determined that there are no procedural bars to Defendant's claim. Therefore, the court will address the merits of Defendant's claim.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Flamer v. State, 585 A.2d 736, 747 (Del. 1990).
4. Defendant is requesting that microscope slides, that were made from cotton swabs used during autopsy examinations of the victim's vagina and anus (that were shown to contain acid phosphatase), and the untested semen stains from the victim's underpants, be subject to DNA testing. Defendant requests that these items that are in the possession of the Prothonotary be subjected to forensic DNA testing because such testing has "scientific potential to produce, new, non-cumulative evidence materially relevant to Mr. White's assertion of actual innocence."
5. The facts in this case indicate that eight separate semen stains were present in the victim's underpants. Three of these stains were never subjected to DNA testing. Two of the stains were tested and the results were inconclusive. One of the stains that was tested matched a DNA sample taken from the Defendant. A "mixed" sample matched the DNA of both the Defendant and the victim's estranged husband, Samuel Hackett. As a part of the autopsy, Dr. Callery testified that he took two swabs of the victim's mouth, vagina and anus. One of the sets of swabs was used to make microscope slides, which upon review revealed no sperm. The other set of swabs showed the presence of acid phosphatase, which is an enzyme present in male ejaculate, in the victim's vaginal and anal regions.
6. All of the DNA testing conducted by the FBI in this case was performed using the restrictive fragment length polymorphism ("RFLP") technology. Despite RFLP testing requiring a larger sample than other forms of DNA testing, it gives a more definitive identification rendering it the testing method of choice. Defendant is requesting that the microscope slides and untested underwear stains be tested using the polymerase chain reaction ("PCR") form of DNA testing.
7. Pursuant to 11 Del. C. § 4504(a), a motion for DNA testing may be granted if: (1) the testing is to be performed on evidence secured in relation to the trial which resulted in the conviction; (2) the evidence was not previously subject to testing because the technology for testing was not available at the time of the trial; (3) the movant presents a prima facie case that identity was an issue in the trial; (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; (5) the requested testing has the scientific potential to produce new, noncumulative 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.
8. Failure to satisfy any one of the six requirements of § 4504(a) precludes the requested remedy of DNA testing because the statute's requirements are stated in a conjunctive manner. Defendant fails to meet the second and fifth requirements of the statute.
Id; see also State v. Klosowski, 310 A.2d 656, 657 (1973) (indicating that "[a]nd" is conjunctive, 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).
9. Defendant is requesting that an enhanced form of PCR testing, known as short tandem repeat ("STR") testing, which had not yet been developed at the time of Defendant's trial, be employed in this case. RLFP and PCR testing were both available forms of DNA testing at the time of Defendant's trial. Defendant also claims that PCR and RFLP testing require larger samples than are likely to be found on the microscope slides. There is no evidence indicating that the samples were not tested for DNA because the sample sizes were inadequate. Therefore, because the technology for DNA testing was available at the time of Defendant's trial, the samples should have been tested at that time.
10. If the underwear stains that were not previously subjected to DNA testing show evidence of DNA material not matching the Defendant's, based upon Agent Errera's testimony, there is no test to determine how long each semen stain had been in the victim's underpants. Since one of the strains did positively match the Defendant, any additional DNA testing would prove to be cumulative evidence not materially relevant to Defendant's assertion of actual innocence. In addition, Dr. Callery testified that he could not say with absolute certainty how long the acid phosphatase (which is contained in pre-ejaculate), which was found to present after swabs were taken of the victim's anus and vagina, would have been present.
For the above stated reasons, Defendant's motion for post-conviction DNA testing is DENIED.
IT IS SO ORDERED.
State v. Williams, 9902014111 (Del.Super. 10-28-2002) RE: State v. Alfred Williams ID Nos. 9902014111 and 9903010817 Superior Court of the State of Delaware, New Castle County Submitted: August 26, 2002 Decided: October 28, 2002
AJ On Defendant's Motion for Postconviction Relief. Denied.
AT Joseph Bernstein, Esquire 300 Delaware Avenue, Suite 1130 Wilmington, DE 19801
OJ Judge William C. Carpentor, Jr.
TX Dear Mr. Bernstein:
The Court has reviewed the petition for Rule 61 relief filed for the defendant, Alfred William s and the response of his trial counsel, Mr. Edinger. The Court finds the assertions by the defendant in his petition to be frivolous and the requested relief is denied.
It appears from are view of the case files in this matter that Mr. Williams was indicted on March 15, 1999 on charges of aggravated menacing, possession of a deadly weapon during the commission of a felony and terroristic threatening, all related to events occurring in February of 1999. Subsequently, on April 12, 1999, he was again indicted on charges of attempted murder first degree, possession of a deadly weapon during the commission of a felony, possession of a deadly weapon by a person prohibited and non-compliance with conditions of bond . This indictment related to events occurring on March 14, 1999. As a result of the above, not only was the defendant facing significant mandatory time, but a possible life sentence.
On October 18, 1999, the defendant's trial counsel was able to obtain from the State a plea agreement resolving all of the above charges if the defendant pled to assault in the first degree as a lesser included offense of the murder charge and aggravated menacing. The defendant executed a truth in sentencing guilty plea form indicating that no threats had been made nor had he been forced in any way to enter the plea. The Court would have made similar inquiry during the plea colloquy and nothing prompted the Court to vacate the plea process. On December 17, 1999, Mr. Williams was sentenced by Judge DelPesco to four years of incarceration at supervision level 5 followed by supervision levels 4 and 3.
The Court finds it nearly incredible that the defendant would now complain in a Rule 61 motion of the sentence he received or of the frank conversations his counsel probably had with him concerning the possibility of a life sentence versus the plea that was offered. The trial counsel's actions clearly were in the best interest of his client, and were nothing less than amazing under the circumstances facing the defendant. The defendant's conclusory statement of fear or improper influence simply lacks any degree of credibility and fails miserably in establishing any basis for postconviction relief. In the Court's view, instead of complaining about his counsel's actions, he should be writing him on a regular basis thanking him for not serving the rest of his life in jail.
Finally, it is also surprising that an experienced member of the criminal defense bar would have participated in the filing of what is clearly a non-meritorious petition particularly when the allegations related to the conduct of another respected member of the bar. Counsel has an obligation to insure that there is a good faith basis to file such pleadings and not simply be a mouthpiece for a disgruntled defendant. Since I believe this conduct to be an isolated incident and inconsistent with the general practice of counsel, no additional action will be taken. However, care should be taken in the future when filing such petitions.
Based upon the above, the defendant's petition for postconviction relief is hereby DENIED as being without merit pursuant to Superior Court Criminal Rule 61(d)(4).