Opinion
I.D. No. 0808021606.
October 21, 2010.
ORDER
On this 21 st day of October, 2010, it appears to the Court that:
1. Defendant Cory D. Washington ("Washington") moves for judgment of acquittal pursuant to Superior Court Criminal Rule 29. Under Rule 29, after the jury returns a verdict of guilty a motion for judgment of acquittal "may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period." When considering a motion filed pursuant to Rule 29 the Court must view the evidence and inferences drawn from the evidence, in the light most favorable to the State. The motion will only be granted if the evidence was insufficient to sustain a conviction.
Super. Ct. Crim. R. 29.
Id.
State v. Bider, 119 A.2d 894 (Del. 1955).
Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982).
2. Washington claims the evidence was insufficient to sustain a conviction for delivery of heroin. However, Washington failed to file this motion within seven days after discharge of the jury. He was convicted on February 3, 2009 and filed this motion on July 26, 2010, almost eighteen months later.
Del. C. § 4751.
3. This is Washington's second written motion for judgment of acquittal. At the close of the State's case counsel for Washington moved for judgment of acquittal. This Court reserved ruling on the motion. A written motion was then filed on February 17, 2009. The witness in question, Koffenberger, was able to testify through his experience as a heroin addict of thirteen years that the substance he purchased from Washington was heroin. At sentencing the written motion was denied as untimely and alternatively, without merit. Washington then appealed to the Delaware Supreme Court and the ruling in this Court was affirmed.
Washington v. State, 2009 WL 3823211 (Del. 2009).
4. Washington's claim is procedurally time barred under Rule 29 and any subsequent motions for judgment of acquittal will also be denied as time barred. Accordingly, Washington's motion is DENIED. IT IS SO ORDERED.
On this 21st day of October, 2010, it appears to the Court that:
1. Defendant Cory D. Washington ("Washington") moves for a new trial pursuant to Superior Court Criminal Rule 33. Under Rule 33, a motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment. A motion based on any other grounds shall be made within 7 days after verdict or finding of guilty or within such further time as the court may fix during the 7-day period.
Super. Ct. Crim. R. 33.
Id.
2. Washington claims that he was denied his right to a fair trial because the Wilmington Police Department failed to obtain video tape evidence that may have been recorded by Downtown Visions. This fact was put on the record at trial therefore it is not "new evidence." Since Washington's claim does not involve newly discovered evidence, he was required to file his motion within seven days of the verdict. Washington was convicted by a jury of possession with intent to deliver a narcotic schedule I controlled substance, delivery of a narcotic schedule I, and loitering on February 3, 2009 and he filed this motion on July 26, 2010; almost a year and a half later. Therefore, his motion is procedurally time barred under Rule 33.
3. Even if Washington's claim was not procedurally time barred it would fail. Washington impliedly argues that the video tape evidence may prove he did not sell heroin. The video tape evidence Washington relies upon is video surveillance that may have been captured by Downtown Visions. However, the video tape evidence was not available at trial because it had been permanently erased by Downtown Visions. Therefore, this Court could not grant Washington's motion for a new trial based on newly discovered evidence because the evidence was permanently destroyed before his trial.
4. Washington's claim is procedurally time barred under Rule 33, and even if it is not time barred his claim will fail. Accordingly, his motion is DENIED.
IT IS SO ORDERED.