Opinion
I.D. No. 99504004126.
Submitted: January 16, 2007.
Decided: April 15, 2008.
Upon Defendant's Motion for Postconviction Relief. DENIED..
Colleen K. Norris, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Daryl Andrus, Smyrna, Delaware, pro se.
ORDER
This 15th day of April, 2008, upon consideration of Defendant's second motion for postconviction relief, it appears to the Court that:
1. Daryl Andrus ("Andrus") was jointly tried in a non-capital Murder First Degree prosecution with codefendant Jeffrey Fogg ("Fogg") in 1996. A jury convicted both Fogg and Andrus of Murder First Degree, and Conspiracy First Degree, for the April 5, 1995 death of James Dilley ("Dilley"). Both Andrus and Fogg were sentenced to life without probation or parole for the murder conviction. The Supreme Court of Delaware affirmed the convictions on direct appeal.
Andrus v. State, 1998 WL 736338 (Del.); Fogg v. State, 1998 WL 736331 (Del.).
2. In December 2002, Andrus submitted his first motion for postconviction relief, alleging various grounds for the motion, largely couched in claims of ineffective assistance of counsel. The Court found all but one of Andrus claims "procedurally defaulted, formerly adjudicated, or summarily dismissed," and determined that "Andrus's counsel was not ineffective." The Court preserved Andrus's final claim, that he deserved an evidentiary hearing on certain letters allegedly sent by a State witness, for future briefing, and it is that claim that Andrus has presented in the instant motion, Andrus's second motion for postconviction relief.
State v. Andrus, 2003 WL 1387115, at *1 (Del.Super.) (denying Andrus's claims as either procedurally barred or without merit), aff'd, 2004 WL 691922 (Del.) (holding that the Superior Court did not abuse its discretion in denying Andrus's motion for postconviction relief).
Id. at *8.
3. The issue now before the Court is whether Andrus is entitled to an evidentiary hearing on those letters, allegedly written by Robert Richmond ("Richmond"), a cellmate of Andrus's in Delaware's Gander Hill MultiPurpose Criminal Justice Facility. In the letters Richmond alleged that there had been an oral agreement between himself and the State whereby Richmond would offer to testify against Andrus in order to receive relief from his sentence. Andrus claims that, by not informing Andrus of the agreement prior to the trial, the State's actions were in contravention of Brady v. Maryland.
Richmond testified at trial that Andrus had told him that Andrus was worried the police would match marks on Dillon's face to a ring Andrus had worn. State v. Andrus, 2003 WL 1387115, at *4 (Del.Super.).
Brady v. Maryland, 373 U.S. 83 (1963) (holding that following request, the suppression by the prosecution of evidence favorable to an accused violates due process where that evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution).
The situation at the time of Andrus's first motion, which remains the situation now, is that the whereabouts of Richmond were unknown or it was impossible to extradite Richmond to Delaware. The letters were, and remain, inadmissible hearsay without Richmond's presence. For that reason, the Court held that the Andrus's claims related to the Richmond letters were "preserved for a future date if and when Richmond is transported back to Delaware."
State v. Andrus, 2003 WL 1387115, at *7 (Del.Super.) ("Following Andrus's submission of his Motion, however, it was determined that Richmond was no longer within Delaware; Andrus then hired a private investigator to ascertain Richmond's whereabouts. After the passage of many months, it was determined that Richmond was being held within Georgia's penal system, and that both parties and the Court recognized that his immediate extradition to Delaware was not feasible or practicable").
Id. at *8.
"This Court is aware of no authority . . . which stands for the blanket proposition that a defendant can compel the government to produce witnesses." The burden is on the Defendant to establish grounds for a subpoena. Andrus has not alleged any factual changes since his last motion for postconviction relief as to the whereabouts of Richmond; thus, the circumstances upon which the Court based its previous ruling have not changed. As a result, there is no basis for an evidentiary hearing based on the letters allegedly written by Richmond, since Richmond's whereabouts remain unknown.
State v. Maddrey, 1992 WL 1477042, at *4 (Del.Super.) (citing Pennsylvania v. Ritchie, 480 U.S. 39 (1987)).
Id. at 4.
4. Based on the above, Defendant's motion is DENIED.