State v. Bass, I.D. 83000508DI

CourtSuperior Court of Delaware
Writing for the CourtVivian L. Medinilla, Judge
PartiesSTATE OF DELAWARE, v. ALAN BASS, Defendant.
Docket NumberI.D. 83000508DI
Decision Date10 June 2022

STATE OF DELAWARE,
v.

ALAN BASS, Defendant.

I.D. No. 83000508DI

Superior Court of Delaware

June 10, 2022


Submitted: February 25, 2022

Upon Consideration of the Commissioner's Report and Recommendation on Defendant's Motion for Postconviction Relief ADOPTED.

Upon Consideration of Defendant's Appeal from the Commissioner's Report and Recommendation on Defendant's Motion for Postconviction Relief DENIED.

Maria T. Knoll and Brian L. Arban, Deputy Attorneys General, Department of Justice, Wilmington, Delaware. Attorneys for the State.

Patrick J. Collins, Esquire of Collins & Price, Wilmington, Delaware. Attorney for Defendant.

MEMORANDUM OPINION

Vivian L. Medinilla, Judge

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INTRODUCTION

In 1983, Alan Bass ("Defendant") received five life sentences plus forty-five years[1] for rapes, kidnappings, robberies, and burglaries committed in Wilmington and Claymont between November 1981 and August 1982. Today, he seeks a new trial or the dismissal of his indictment. With the assistance of appointed counsel, he brings this seventh Motion for Postconviction Relief under Superior Court Criminal Rule 61, where he claims actual innocence and raises two separate and distinct constitutional due process challenges under the 14th Amendment to the U.S. Constitution.[2] The Court has considered all relevant pleadings, [3] the Commissioner's Report and Recommendation, [4] the sentence imposed upon Defendant, and the record in this case.[5] For the reasons set forth herein, the Commissioner's Report and Recommendation are ADOPTED. Defendant's Motion for Postconviction Relief is DENIED.

2

FACTUAL BACKGROUND[6]

To best understand Defendant's Motion, the Court begins with the three separate incidents that formed the bases of these charges and convictions. A. November 1981 Assault #1 (S.K.)

On November 10, 1981, 20-year-old victim S .K. was working alone at a North Wilmington law office at 7:00 PM when she saw a black male enter the office.[7] The man ran over to her, stuck an object into her side and demanded money.[8] He forced her to hang up the phone and took some petty cash. He then went through her purse and took her watch and jewelry.[9]

The assailant then forced her into a conference room in the law office and ordered her to lift her sweater and cover her face.[10] The assailant tied up her feet, forced her to unbutton her pants, and raped her vaginally for twenty to thirty seconds.[11] He had difficulty maintaining an erection and did not ejaculate.[12] Victim S.K. caught a glimpse of his face when her assailant permitted her to remove the sweater from her face.[13] He went to another room and returned with a different

3

sweater to put over her head again.[14] He covered her face and gagged her mouth with that sweater, tied her hands behind her back, and left.[15] Police later found a screwdriver in the conference room where she was raped.[16]

B. July 1982 Assault #2 (A.S.)

On July 10, 1982, 26-year-old victim A.S. was working alone on the third floor of an office at an insurance company in Claymont.[17] A black man entered the office at approximately 9:30 AM holding a screwdriver and wearing dark glasses and a cardigan sweater over his head, [18] covering the sides of his face and hair.[19] She saw him for ten to thirty seconds before he approached her.[20] He shoved the screwdriver into her side and forced her to look at the floor.[21] After demanding money, he emptied her purse, and gagged her by tying his sweater over her head.[22] She could only see his gray shoes as he forced her into a conference room.[23]

Thereafter he demanded her wedding and engagement rings which she begged him not to take.[24] Her assailant then threatened to kill her, punched her in the face,

4

took her rings, and tied her hands and feet.[25] He then removed her clothes from the waist down, undressed himself, and raped her vaginally for about sixty to ninety seconds.[26] He had trouble penetrating her and maintaining an erection.[27] After this time period of penetration, he seemed disgusted, gave up and said "forget it."[28] He then dressed her and himself, retied her hands and feet, covered her with a raincoat, and left.[29]

C. August 1982 Assault #3 (S.M.)

Six weeks prior to her attack, on July 16, 1982, 30-year-old victim S.M. attended an office party hosted by her employer in North Wilmington where her wallet and personal checks were stolen.[30] Two of the stolen checks were forged and cashed.[31]

On the morning of August 26, 1982, she was alone in her office when a male assailant approached her from behind and covered her mouth.[32] When she asked what he wanted, he told her to shut up and asked if she had money.[33] She responded that she did not.[34] After a few exchanges wherein she tried to convince him that

5

someone else was in the office, [35] he forced her into a windowless lab room and struck her on the head.[36] She tried to persuade him that the police were on the way because her purse had been stolen.[37] After accusing her of lying, [38] he became angrier, ordered her to kneel[39] and to shut up.[40] At some point during the attack, she lost control of her bladder and urinated.[41] Shortly thereafter, she heard her assailant walk out of the room.[42] After she managed to stand, she locked herself in the office and called the police.[43] She never saw his face.[44]

PROCEDURAL BACKGROUND - TRIAL

The evidence presented at trial included, but was not limited to, the assailant's race, height, build, voice, facial features, clothing, and shoes. The State called various witnesses at trial that testified about the identification of the assailant and the similarities of the three incidents. These witnesses included law enforcement, the victims, two eyewitnesses, and a long-time friend of Defendant. Two witnesses positively identified Defendant at trial as the assailant, including one of the victims.

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A. Testimony of Victims

At trial, first victim S.K. (who caught a glimpse of the assailant's face when she removed the sweater from her face after the rape) unequivocally identified Defendant as her attacker at trial.[45] She told the jury that her attacker was a black male with a dark complexion, slender, 20 to 30 years old, 5'8" to 5'10", possibly with a mustache, and with a deep, soft-spoken voice.[46] She further described him as tall and thin.[47] She recalled that he wore a hat, sunglasses, a sport coat, a turtleneck, and dark pants.[48]

Before trial, she was unable to identify her assailant from a physical lineup.[49]Defendant was not in that lineup.[50] She also did not make any positive identifications from a photo lineup although Defendant's photo was included, [51] and she thought one or more of the men resembled her assailant.[52] She was cross-examined about her inability to identify Defendant pre-trial.[53] On re-direct, she

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offered the jury an explanation as to why she was unable to identify Defendant until trial.[54]

At trial, the second victim, A.S., who had seen her attacker for ten to thirty seconds before he approached her, described her assailant as a thin black male with a small hair growth on his chin, early thirties, 5'11" to 6'0", with a medium complexion, [55] and that Defendant "resembles the person who attacked me."[56] Through two photo lineups in July 1982 and October 1982, this victim had narrowed the identification to two individuals, to include Defendant, but was unable to make a positive identification.[57] At trial, she stated that Defendant's height and build were similar but that her attacker was thinner and did not have a mustache.[58] The State elicited testimony from law enforcement that Defendant had gained 15 to 20 pounds since his arrest.[59]

A.S. also testified that she saw the assailant's gray shoes as he forced her into a conference room.[60] She further described them as a gray slip-on type[61] "that had a

8

suede top, and what [she] thought was some kind of soft crepe sole."[62] The State provided a pair of Defendant's shoes at trial, but this victim was unable to identify them as belonging to her attacker.[63]

The third victim S.M. never saw her attacker's face[64] and was not able to positively identify Defendant. But she testified that her attacker was 5' 10" to 6'0" and had a thin build with long, thin black fingers, a blue shirt, and a calm voice.[65]Though no witnesses were present during her attack, the jury heard from two eyewitnesses who were in the same office building on the day of the attack. Both provided evidence favorable to the State.

B. Testimony of Additional Eyewitnesses

One of these two eyewitnesses was Roger Reynolds, a building manager in the office building where the third victim, S.M., was assaulted.[66] He testified that shortly after the attack, he received a call from police and began looking around the building.[67] Mr. Reynolds noticed a man located in a bathroom stall of the men's restroom about thirty feet away from S.M.'s office.[68]

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While in the stall, it appeared that this man's pants were up, he was not using the toilet, and his shoes were clearly visible.[69] He described the man as black, about 6'0" tall, with facial hair, and wearing gray suede shoes with a flat sole and heel.[70]When shown the same gray shoes which were presented to second victim A.S., Mr. Reynolds stated they "looked like the same shoes"[71] as those worn by the man in the bathroom stall. Although he acknowledged that he did not see the man's entire face, he selected an individual from a photo lineup based on the "definite formation" of the forehead.[72] He selected a photo of Defendant.[73]

The second eyewitness, Christine Shaw, testified that on the morning of the third assault she passed a man in the hallway who was exiting the office where the attack occurred.[74] She described him as a neatly dressed tall black man, who stood about 5'10" and 130 pounds,...

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