Opinion
I.D. No. 30806137DI
Submitted: September 3, 2002
Decided: October 28, 2002
Appearances: Maria T. Knoll, Esquire, Deputy Attorney General
Lisa Schwind, Esquire, and William Deeley, Esquire, Attorneys for Defendant
OPINION
This is the Court's decision on Defendant Isaac Redding's motion for postconviction DNA testing, filed pursuant to 11 Del. C. § 4504. For the reasons explained below, the motion is denied.
FACTS
On September 21, 1989, Defendant Isaac Redding was convicted of two counts of Burglary first degree, four counts of Unlawful Sexual Intercourse first degree and one count of Unlawful Sexual Penetration third degree. These convictions stemmed from an incident in May 1998 and a second incident in September 1988, both perpetrated against the same victim. Defendant was sentenced to four consecutive life terms with a mandatory term of incarceration of 20 years and three suspended five-year terms. The Supreme Court affirmed the conviction. Defendant filed two postconviction relief motions pursuant to Super.Ct.Crim.R. 61, both of which were denied by this Court and affirmed on appeal.
Redding v. State, Del.Supr., No. 5 Walsh, J. (October 2, 1990) (ORDER).
Defendant now seeks a postconviction remedy under 11 Del. C. § 4504(a), which provides for posttrial DNA testing where six conditions are met.
DISCUSSION
The first statutory requirement under § 4504(a) is that the "testing is to be performed on evidence secured in relation to the trial which resulted in the conviction. . . ." Based on information provided by William Wade, Esquire, counsel for Christiana Hospital, the parties agree that the Hospital has custody of two slides which contain vaginal material taken from the victim, during investigation into the two incidents. In light of the uncontested fact that Christiana Hospital has in its possession specimens acquired during the investigation into the crimes for which Redding was convicted, the Court finds that Defendant has met the statute's first requirement.
Section 4504(a)(1).
The second requirement is that the "evidence was not previously subject to testing because the technology for testing was not available at the time of trial." The Court accepts Defendant's position that the technology for testing was not widely available at the time of trial.
Section 4504(a)(2).
The third requirement is that Defendant must present a prima facie case that identity was an issue at trial. The record shows that Defendant denied perpetrating any of these crimes, and identity was therefore an issue. However, the evidence that Defendant was the attacker was strong.
Section 4504(a)(3).
The victim was unable to identify her assailant after the first attack because she never had a clear view of his face. She told police that he had a moustache, a scar on the side of his face and bumpy facial skin. On September 2, 1988, shortly after the second attack, she identified Defendant as the assailant in both incidents in a photo array which included pictures of eight different individuals. The Delaware Supreme Court found that this identification "has strong evidential force" and that the identification procedures were not suggestive and posed no risk of misidentification.
Redding v. State, Del. Supr., No. 5, 1990, Walsh, J. (October 2, (1990) Order at 3.
In addition, the victim's trial testimony shows that she had several occasions during the second incident to observe Defendant as he turned off various lights in the apartment. After breaking into her apartment, Defendant took the victim into the kitchen and told her to turn the light out. He later took her into the bathroom and again told her to turn the light off. The light switch did not work, and Defendant had to unscrew the bulb himself while the victim watched. Taking her into the living room, Defendant broke the light while trying to turn it off. Thus, the victim had at least three occasions to see Defendant while the lights were on in her home. During the second attack Redding told the victim that he was going to assault her just as he had before.
Transcript at 67-68.
Id. at 70.
Sergeant James Strawbridge of the Wilmington Police Department testified that he arrived on the scene of the second attack while it was taking place. When additional officers arrived, Strawbridge and another officer climbed a fire escape and forced their way into the victim's apartment, interrupting "a lot of confusion and problems going on right at that moment." Strawbridge next "saw a figure run from that area [of the kitchen] out to the hallway of the apartment." The person ran down the stairs to first floor, where he paused to jar open the exterior door. Strawbridge, who was right behind him, could not see his face, but could see that he was a black male. The man ran past an officer on the front steps, headed west on Seventh to Jefferson, where several other officers took up the pursuit. When they cut him off, he turned around and Strawbridge tackled him.
Id. at 189.
Id.
Id. at 190-92.
When asked if he was sure that Defendant Redding was the man he had seen in the apartment, Strawbridge, acknowledging that the apartment was dark, responded as follows:
I can't say. I know it's the same subject that I chased. Okay. But at the time — I'm not trying to be confusing. I couldn't see other than the figure. Okay. But the figure went out the apartment down the steps, and I kept him in sight.
Id. at 193.
In further corroboration, a bystander named Eric Lloyd testified that he had been walking down the 500 block of Seventh Street when he heard a woman shout from a second floor window, "Help! Somebody help me!" The woman appeared to be jerked back from the window by an unseen hand, and Lloyd called the police. When the police arrived, they surrounded the building, and after several minutes, Lloyd saw a man dash out the front door and run down Seventh Street onto Jefferson Street. Lloyd watched the man from the time he ran from the building until the police tackled him.
Thus despite the fact that Defendant denied attacking the victim, there was sturdy evidence that he was the attacker. The victim had at least three opportunities to observe her attacker as he turned off various lights in the apartment and she picked him out of a photo line-up of eight people. Sergeant Strawbridge saw a figure run out of the victim's apartment, followed him into the street and had him in plain view until he tackled him. Eric Lloyd, a disinterested bystander, verified that a man ran out of the building and was eventually tackled as described by Sergeant Strawbridge.
The fourth requirement is that Defendant makes a prima facie showing that the evidence 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." At the office conference, the parties agreed that the evidence has been in a sealed container in the possession of Christiana Hospital since it was obtained in 1988. Defendant has met this requirement.
Section 4504(a)(4).
The fifth requirement is that the requested testing has the scientific potential to produce new, noncumulative evidence relevant to the question of Defendant's assertion of innocence. The parties agree that there are two slides containing vaginal material taken from the victim after each of the two incidents. At the office conference, defense counsel stated that the slides contain material swabbed from the victim's internal vaginal and cervical area after both incidents. There is no evidence to suggest that Defendant ejaculated at any time during the first incident, much less that he ejaculated in her vagina. Furthermore, the victim testified that she immediately washed herself and changed clothes after Defendant left her home. She did not report to the police or seek any medical attention until the next day. Thus, requested testing would be meaningless. The Court finds nothing to suggest that DNA testing of the vaginal material taken after the first incident could show Defendant's innocence.
Section 4504(a)(5).
In regard to the second incident, the victim testified that Defendant had just pulled down his pants and was trying to put his penis in her vagina when the police broke into the apartment and Defendant ran away. Thus there is no evidence of either vaginal penetration or ejaculation, although there is evidence of oral penetration as alleged in the indictment. As the Court sees it, this review of the evidence ends the inquiry. Based on the facts, performance of forensic DNA testing on either or both slides could not demonstrate Defendant's "actual innocence," as required by § 4504(a).
Tr. at 72.
For all these reasons, Defendant Isaac Redding's motion for postconviction DNA testing is Denied.
It Is So ORDERED.