State Of Del. v. Desmond

Decision Date05 January 2011
Docket NumberI.D. No. 91009844DI
PartiesSTATE OF DELAWARE, v. CHRISTOPHER R. DESMOND, Defendant
CourtDelaware Superior Court

Upon Defendant's Motion for Recusal. DENIED.

Upon Defendant's Seventh Motion for Postconviction Relief.

SUMMARILY DISMISSED.

MEMORANDUM OPINION

Steven P. Wood, Esquire and Paul R. Wallace, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware, Attorneys for the State.

Christopher R. Desmond, Smyrna, Delaware, pro se.

COOCH, R.J.

I. INTRODUCTION

Christopher R. Desmond ("Defendant") has filed his seventh motion for postconviction relief, together with a "Motion for Recusal" of the undersigned judge. It is manifest on the face of Defendant's moving papers that all of his claims for postconviction relief are procedurally barred. Similarly, Defendant has made no showing of bias or prejudice that would warrant this judge's disqualification or recusal.

Given the foregoing, in no sense is this Court's decision to deny Defendant's motion for recusal anywhere near a close call. Nonetheless, this Court has elected to address Defendant's motion for recusal at some length in order to summarize the law in Delaware regarding judicial recusal and disqualification, with particular emphasis on the factors underlying a judge's decision to recuse or disqualify.

II. FACTUAL AND PROCEDURAL HISTORY

On November 9, 1992, Defendant was convicted in Superior Court, following a jury trial, of ten counts of Robbery in the First Degree, ten counts of Possession of a Deadly Weapon During the Commission of a Felony, two counts of Conspiracy in the Second Degree, three counts of Possession of a Deadly Weapon by a Person Prohibited, three counts of Theft, and one count of Escape in the Third Degree.1 These convictions stem from a series of five armed robberies of supermarkets and grocery stores in New Castle County occurring between December 1990 and October 1991.2 Defendant's convictions were affirmed on direct appeal to the Supreme Court of Delaware.3

Over the years, Defendant has filed a plethora of motions in Delaware state courts for postconviction relief and recusal of the undersigned judge, and motions in federal court for habeas corpus relief.4 Defendant's first motion for postconviction relief was based on nine grounds: 1) he was denied his constitutional right to proceed pro se at trial; 2) he was denied effective assistance of counsel; 3) the State had a duty to preserve certain exculpatory evidence; 4) allowing certain robbery charges to go to the jury based upon a single theft violated the double jeopardy clause; 5) the trial judge's ex parte communication with a juror was error; 6) the State failed to establish that a deadly weapon was used in any of the robberies; 7) evidence was unlawfully seized and not suppressed; 8) adequate "notice" was notgiven as to whether he was being charged with felony theft; and 9) the police engaged in suggestive photographic identification.5

This Court denied Defendant's first motion for postconviction relief.6 This Court found that Defendant's contention that he was denied the right to proceed pro se was merely a "conclusory and unsubstantiated" claim that will not be addressed in Superior Court Criminal Rule 61 motions and, moreover, Defendant did not show cause as to why this issue was not raised in direct appeal nor did Defendant demonstrate prejudice.7 With respect to Defendant's claims of ineffective assistance of counsel, this Court found that Defendant did not satisfy either prong of the two-fold test set forth in Strickland v. Washington; thus, this claim was without merit.8

Defendant's claim that the state failed to preserve exculpatory evidence was not raised on direct appeal and as result was procedurally barred by Rule 61(i)(3).9 Similarly, Defendant's double jeopardy claims were not timely raised, nor did he make the requisite showing of cause and prejudice.10

With respect to Defendant's claims regarding the trial judge's ex parte communication with a juror, the state's alleged failure to establish Defendant's use of a deadly weapon during the commission of the crimes, and the introduction of unlawfully seized evidence, these issues were argued and resolved by the Supreme Court of Delaware on Defendant's direct appeal.11 Finally, Defendant's claims that he was not given adequate notice that he was being charged with felony theft were not raised on direct appeal nor was cause shown, and Defendant's argument that suggestive identification procedures were utilized was a conclusory and unsubstantiatedclaim.12 Accordingly, Defendant's first motion for postconviction relief was denied by this Court.

This Court's decision denying Defendant's second motion forpostconviction relief was affirmed by the Supreme Court of Delaware.13 The Supreme Court held that Defendant's claims that he was denied the right of self representation and that his motion was improperly denied on procedural grounds were without merit because "the issues presented on appeal are controlled by settled Delaware law, and, to the extent that judicial discretionis implicated, clearly there was no abuse of discretion."14 The Court noted that Defendant's claims were procedurally barred because 1) they were not raised in the proceeding leading to the judgment and Defendant had not shown cause for relief; and 2) his claims were previously adjudicated in the first motion for postconviction relief, and Defendant had not shown that reconsideration was warranted in the interests of justice.15

Defendant's third motion for postconviction relief was similarly denied.16 Therein, Defendant again alleged that he was denied his constitutional right to self representation, he received ineffective assistance of counsel, and there was "improper and suggestive" photographicidentification by the police. 17 Although these claims had been previously reviewed and denied by this Court and the Supreme Court of Delaware, Defendant included a "fundamental fairness" argument to attempt to trigger Rule 61(i)(5) and to avoid the procedural bars that would otherwise attach tothe earlier rulings. 18 Defendant also included an allegation that the undersigned judge could not decide the motion because of "bias," apparentlybased on this judge's earlier rulings.19 Because all of Defendant's claims were previously argued and decided and Defendant could not demonstrate an exception to the procedural bars of Rule 61, this Court denied Defendant's third motion for postconviction relief. Further, to the extent Defendant alleged bias on the part of the undersigned judge, this Court noted that the Supreme Court of Delaware denied Defendant's petition for a Writ of Habeas Corpus, and the petition contained an allegation of "bias at trial [by the undersigned judge, which] deprived...[Defendant] of dueprocess."20 Thus, "[b]y thereafter ruling that Defendant's appeal was without merit, the Supreme Court (at least implicitly) found that this judge was not biased such that he cannot now consider the current motion forpostconviction relief."21

Defendant's fourth motion for postconviction relief claimed "fundamental error-fraud" in that there was alleged improper influence of a juror to vote for his conviction and, yet again, a claim for denial of hisconstitutional right to self-representation. 22 Although the substance of Defendant's claims was again procedurally barred, Defendant "recast his argument in light of the fundamental constitutional violation exception and the 'miscarriage of justice' exception contained in Rule 61(i)(5) and also a violation of the Delaware Lawyer's Rules of Professional Conduct, 3.8(b)(c)(d)."23 This Court held that

[t]he fundamental constitutional violation exception and the "miscarriage of justice" exception contained within Rule 61(i)(5) do not apply here because Defendant's claims are procedurally barred under the "former adjudication" bar of Superior Court Criminal Rule 61(i)(4) and Defendant does not qualify for the 'interest of justice' exception to that rule; that exception has been "narrowly defined to require the movant to show that the trial court lacked the authority to punish or convict him."24

Accordingly, this Court denied Defendant's motion because: 1) the claims had been previously ruled upon; 2) the motion was filed ten years after the conviction became final; 3) the motion contained grounds for relief not asserted in prior postconviction proceedings; and 4) Defendant could notdemonstrate any exceptions to the procedural bars contained in Rule 61(i).25 This Court also noted Defendant's "pattern of reasserting past claims by couching the claims in slightly different language in an attempt to preservethe appearance that the claim has not been previously adjudicated and is not procedurally barred by Rule 61(i)."26

Defendant's fifth motion for postconviction relief claimed that theSupreme Court of Delaware's holdings in Walton v. State 27 and Word v.State 28 created a "newly recognized right" to reduce five of his convictionsfor Robbery First Degree to Robbery Second Degree. 29 Defendant alleged that the definition of what constitutes "displays" a deadly weapon for purposes of first-degree robbery was altered by virtue of the Walton andWordholdings. 30 This Court held that neither Walton nor Word was applicable to Defendant's case, as several victims observed Defendant with a handgun during the course of the robberies, and the Walton and Word holdings were directed only at those situations where no weapon was physically manifested and Defendant "only alluded to, or implied that he orshe was armed." 31 Thus, there was no newly recognized right that would toll the procedural bar contained in Rule 61(i)(1), and that Defendant's claim would fail in any event because "a mere physical appearance [of a weapon]will suffice [to satisfy the requirements for first-degree robbery.]"32 Accordingly, Defendant's ...

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