Dawson v. State

• Decision Date: 19 March 1996
• Docket Number: No. 277,1995,277
• Citation: 673 A.2d 1186
• Parties: David F. DAWSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 1186

673 A.2d 1186

David F. DAWSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 277, 1995.

Supreme Court of Delaware.

Submitted: March 19, 1996.

Decided: April 17, 1996.

Upon appeal from Superior Court. AFFIRMED and REMANDED.

Court Below: Superior Court of the State of Delaware in and for Kent County; Cr.A. Nos. IK86-12-0024R1 and IK87-01-0834R1 through IK87-01-0847R1.

Kevin J. O'Connell (argued), and Sheryl Rush Milstead, Wilmington, for Appellant.

Loren C. Meyers (argued), and Timothy J. Donovan, Jr., Deputy Attorneys General, Department of Justice, Wilmington, for Appellee.

Before VEASEY, C.J., WALSH, HOLLAND and HARTNETT, JJ., and JACOBS, Vice Chancellor, ¹ constituting the Court en banc.

VEASEY, Chief Justice:

This appeal is from the Superior Court's decision and order denying postconviction relief in a case where the defendant was sentenced to death. We find no error in the trial court's disposition of the defendant's contentions, and therefore AFFIRM and REMAND for resentencing. ²

Defendant-below, appellant, David F. Dawson ("Dawson"), appeals from the Superior Court's denial of all the claims raised in his motion for postconviction relief, filed pursuant to Superior Court Criminal Rule 61. In 1988, Dawson was convicted of, inter alia, four counts of first degree murder arising out of the brutal killing of Madeline Kisner in December 1986. In 1993, Dawson was sentenced to death in connection with these convictions.

Dawson's motion for postconviction relief in the trial court raised seven individual claims which Dawson contends justify the reversal of his convictions and sentences and require a new trial, a new penalty hearing, or both. Dawson's claims are as follows: (1) the State wrongfully failed to preserve certain allegedly exculpatory evidence; (2) the State wrongfully withheld allegedly exculpatory evidence; (3) Dawson's constitutional rights were violated in connection with the jury selection process in his 1988 trial and 1993 penalty hearing; (4) the State made improper and prejudicial remarks during the 1988 trial and 1993 penalty hearing; (5) Dawson's defense counsel were ineffective; (6) the Delaware death penalty statute suffers from certain constitutional infirmities, both as applied to Dawson and generally; and (7) Dawson's death sentence for felony murder was unconstitutional. The trial court rejected all of Dawson's claims, holding that they were either procedurally barred or without merit.

Dawson contends that the Superior Court either erred as a matter of law or abused its discretion in denying the relief requested in connection with the seven claims stated above. Dawson also asserts that: (1) the Superior Court infringed his due process rights by refusing to allow discovery in connection with Dawson's Rule 61 motion; and (2) the Superior Court erred by resentencing Dawson in absentia. We agree with the well-reasoned opinion of the Superior Court, and hold that the Superior Court neither erred as a matter of law nor abused its discretion.

I. Facts

A full statement of the facts relevant to the instant appeal is contained in Dawson I, Del.Supr., 581 A.2d 1078 (1990), Dawson II, Del.Supr., 637 A.2d 57 (1994), and Dawson III, Del.Super., Cr.A. Nos. IK86-12-0024R1 and IK87-01-0834R1 through 0847R1, 1995 WL 411372, mem. op. (June 9, 1995). Only a brief summary is necessary for purposes of this appeal.

In the early morning hours of December 1, 1986, Dawson and three fellow inmates, Mark McCoy ("McCoy"), Richard Irwin ("Irwin") and Larry Nave ("Nave"), escaped from the Delaware Correctional Center, near Smyrna, Delaware. Dawson made his way south from Smyrna to Kenton, Delaware where he engaged in a burglary at the home of Dorothy and Frank Seeney ("Seeney"). In that burglary, Dawson stole a leather jacket which was later recovered in Dawson's possession. Shortly thereafter, Dawson unlawfully entered the home of Madeline and Richard Kisner and their son, Brian. Mr. Kisner and his son had left the house by the time Dawson arrived. Mrs. Kisner was not so fortunate, however. Finding Mrs. Kisner alone, Dawson bound, gagged and brutally stabbed her to death.

The additional facts pertinent to this appeal relate to certain details concerning the movements of the escapees and evidence related to such events as the Seeney burglary and the Kisner crime scene. These facts and other facts relating to Dawson's trial theories, postconviction theories and the decisions of trial counsel are developed hereinafter under the individual headings of Dawson's contentions to which they relate.

II. The State's Alleged Failure to Preserve Potentially Exculpatory Evidence

Dawson claims that the State failed to preserve certain allegedly exculpatory evidence in contravention of this Court's holding in Deberry v. State, Del.Supr., 457 A.2d 744, 752 (1983). Specifically, Dawson contends that several knives seized from Nave, McCoy and Irwin would have substantiated his claim that these individuals, and not Dawson, were responsible for the murder of Kisner. The Superior Court held that this claim was procedurally barred as a result of Dawson's failure to raise the issue on direct appeal. In light of Dawson's related ineffective assistance of counsel claim, however, the Superior Court analyzed the Deberry claim to determine if defense counsel had been responsible for Dawson's failure to raise this issue on direct appeal. After carefully analyzing Dawson's contentions in light of relevant precedents of this Court and the United States Supreme Court, the Superior Court concluded that Dawson's claim was without merit. We agree that Dawson's contentions are without merit, and hold that the Superior Court neither erred as a matter of law nor abused its discretion in finding the claim to be procedurally barred.

This Court reviews for abuse of discretion the Superior Court's decision on an application for postconviction relief. Bailey v. State, Del.Supr., 588 A.2d 1121, 1124 (1991). Nonetheless, questions of law are reviewed de novo. See E.I. du Pont de Nemours & Co., Inc. v. Shell Oil Co., Del.Supr., 498 A.2d 1108, 1113 (1985).

Ordinarily, a claim based on allegedly improper destruction of evidence would be evaluated under the test established by this Court in Deberry, 457 A.2d at 751-52. In light of Dawson's failure to raise this issue in his direct appeal, however, the Court's review must follow the standards set forth in Superior Court Criminal Rule 61(i)(3), which provides that a claim not previously raised will be procedurally barred unless the defendant can establish: (1) cause for the failure to raise the claim in the original proceeding, and (2) actual prejudice flowing from the failure to assert the claim. See also Younger v. State, Del.Supr., 580 A.2d 552, 555 (1990) (citing Johnson v. State, Del.Supr., 460 A.2d 539 (1983), and Conyers v. State, Del.Supr., 422 A.2d 345 (1980)).

Although Dawson does not assert any particular cause for his failure to assert the Deberry claim, the Superior Court proceeded on the basis that Dawson's related ineffective assistance of counsel claim might be sufficient to establish cause under the first prong of the Rule 61(i)(3) test. In essence, the Superior Court reasoned that, if Dawson established the basis for a claim of ineffective assistance, it would be sufficient to show that the Deberry claim should have been raised on direct appeal. Thus, prior to analyzing the Deberry claim, the trial court turned to the merits of the ineffective assistance of counsel claim. Dawson's ineffective assistance claim is grounded on the fact that defense counsel did not make any effort to obtain or analyze the allegedly exculpatory knives.

The standard by which an ineffective assistance of counsel claim is reviewed is well known. The defendant must show that: (1) counsel's representation fell below an objective standard of reasonableness, and (2) the deficiencies in counsel's representation caused the defendant actual prejudice. Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S.Ct. 2052, 2065, 2068, 80 L.Ed.2d 674 (1984). Counsel's efforts, however, enjoy a strong presumption of reasonableness. Flamer v. State, Del.Supr., 585 A.2d 736, 753-54 (1990). Additionally, prejudice in this context is defined as "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Thus, Dawson's claim must overcome the two substantial hurdles set forth in Strickland. Upon review of the facts of record and the arguments presented, it is clear that Dawson cannot make a showing sufficient to meet either prong of the Strickland test.

First, counsel's decision not to pursue the evidence seized from Nave, McCoy and Irwin was clearly reasonable. Dawson's efforts to implicate these three men were not credible. Dawson alleged that he was accompanied by the three men from the time they escaped from the Delaware Correctional Center until the time of the murder. Dawson further claimed that he left Nave, McCoy and Irwin at the Kisner household while he went to fill the Kisner car with gasoline. When he returned, Dawson contends, the three men were gone and Mrs. Kisner was dead. This version of the facts is, however, unsupported by the evidence.

Wilbert Dill, the operator of a gas station near Fieldsboro, testified that he observed Nave, McCoy and Irwin near the gas station at approximately 6:40 a.m. Dawson apparently was not with the other prisoners. The record shows that a telephone call was placed from the gas station to Nave's sister, Kathy Spence, at 6:36 a.m. Thus, these three individuals were clearly in Fieldsboro at or near 6:40 a.m. Dawson claimed that the drive from Fieldsboro south to Kisner's home in Kenton took roughly two hours. This would have placed the four men in Kenton 10 minutes after Mrs. Kisner was scheduled to arrive at work. Even assuming that the ride from...