State v. Dawson

• Decision Date: 11 April 1995
• Docket Number: No. 88K00413DI,88K00413DI
• Citation: 681 A.2d 407
• Parties: STATE of Delaware v. David F. DAWSON, Defendant, ID IK86-12-0024R1, IK87-01-0834R1 to IK87-01-0847R1. . Submitted:
• Court: Delaware Superior Court

Page 407

681 A.2d 407

STATE of Delaware v. David F. DAWSON, Defendant, ID No. 88K00413DI.

IK86-12-0024R1, IK87-01-0834R1 to IK87-01-0847R1.

Superior Court of Delaware Kent County.

Submitted: April 11, 1995.

Decided: June 9, 1995.

Richard E. Fairbanks, Jr., Ferris W. Wharton, and Loren C. Meyers, Deputy Attorneys General, Department of Justice, Wilmington, for State of Delaware.

Kevin J. O'Connell, Wilmington, and Sheryl Rush-Milstead, Wilmington, for defendant.

MEMORANDUM OPINION

RIDGELY, President Judge.

Defendant David F. Dawson (Dawson) was convicted in 1988 by a Kent County jury of four counts of Murder in the First Degree, 11 Del.C. § 636; one count of Burglary in the Second Degree, 11 Del.C. § 825; one count of Robbery in the First Degree, 11 Del.C. § 832; six counts of Possession of a Deadly Weapon During the Commission of a Felony, 11 Del.C. § 1447; and one count of Possession of a Deadly Weapon by a Person Prohibited, 11 Del.C. § 1448, all stemming from the robbery and murder of Madeline Kisner after his escape from imprisonment at the Delaware Correctional Center. ¹ Following a penalty hearing the jury unanimously recommended a sentence of death pursuant to 11 Del.C. § 4209 for each count of first degree murder. This Court sentenced Dawson to death on each of the four counts of Murder in the First Degree and a term of 100 years incarceration on the remaining counts.

On direct appeal, the Delaware Supreme Court affirmed the convictions and sentences. Dawson v. State, Del.Supr., 581 A.2d 1078 (1990) (Dawson I ). Dawson's death sentences (not his convictions) were vacated and remanded for further proceedings by the United States Supreme Court. Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). On remand, the Delaware Supreme Court reversed the death sentences and ordered a new penalty hearing. Dawson v. State, Del.Supr., 608 A.2d 1201 (1992). This Court granted Dawson's motion for a change of venue to New Castle County for that hearing. In 1993 the New Castle County jury also unanimously recommended sentences of death on each of the first degree murder convictions. This Court subsequently sentenced Dawson to death for each count of Murder in the First Degree. State v. Dawson, Del.Super., IK86-12-024, Ridgely, P.J. (April 2, 1993). On appeal, the Delaware Supreme Court affirmed the sentences of death. Dawson v. State, Del.Supr., 637 A.2d 57 (1994) (Dawson II ). After the remand of this case, Dawson filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 alleging among other things, that his counsel were ineffective in representing him in violation of his rights under the Sixth Amendment. This Court appointed new counsel for Dawson and stayed his scheduled execution in order that this motion could be considered. Venue was returned to Kent County by my Order. The Court ordered Dawson's former trial and appellate counsel to file affidavits in response to the allegations of ineffective assistance of counsel raised. An evidentiary hearing on the factual issues to be resolved was conducted and briefing was completed on April 10, 1995.

After careful consideration of the evidence presented, the expanded record, and the arguments of counsel, I conclude that Dawson's motion is devoid of merit and that he is not entitled to any form of postconviction relief from his convictions or the sentences of death which have been imposed.

I. FACTS

A comprehensive statement of facts is contained within the 1990 opinion of the Delaware Supreme Court. Dawson I, 581 A.2d at 1082-85. A summary of those facts as well as any additional facts necessary to decide the present motion follow.

On the morning of December 1, 1986 between 1:15 a.m. and 2:20 a.m., Dawson escaped from the Delaware Correctional Center near Smyrna, Delaware with three other inmates, Larry Nave, Richard Irwin and Mark McCoy. That same morning before 5:00 a.m., a 1965 Ford Mustang was stolen from a location on the north side of Smyrna. This automobile was discovered later that morning at 6:15 a.m., on the shoulder of northbound U.S. Route 13, approximately one-half mile south of Fieldsboro, Delaware. Fieldsboro is between eight and eight-and-a-half miles north of Smyrna. Subsequent forensic investigation identified a latent finger-print on the passenger door window to be that of McCoy and an address book belonging to Nave was uncovered in the back seat.

Wilbert Dill ("Dill") testified that he operated the Fieldsboro service station, located at the intersection of Route 13 and Noxontown Road. When Dill arrived at work around 5:45 a.m. on December 1, 1986, he saw three men, dressed in similar blue clothing, standing by the station's bathroom. Dill noticed the three men attempt to enter vehicles parked at the other businesses located at the intersection. Dill observed only these three men for nearly an hour, until approximately 6:40 a.m.

Cathy Spence ("Spence"), Nave's sister, identified the three men seen by Dill as Irwin, McCoy and Nave. Spence initially told the police that Nave had called her seeking assistance, but that she had refused. At trial, however, Spence testified that she went to the Fieldsboro service station and gave the men a change of clothing. Spence further testified that she remained with Nave, McCoy and Irwin until approximately 6:30 p.m. to 7:50 p.m. that day. Finally, she testified that at no point in time during that day did she see Dawson.

Around the same time that McCoy, Nave and Irwin were at the Fieldsboro service station a 1970 Oldsmobile Starfire automobile was stolen from the south side of Smyrna. The car was taken at some point between 10:00 p.m., November 30 and 7:15 a.m. on December 1st. The car was first noticed in the early morning hours of December 1st and was found by the police the next day on County Road 139, east of Kenton.

The location of the abandoned Oldsmobile Starfire was approximately two miles southwest of the home of Frank and Dorothy Seeney ("Seeneys"). Mr. Seeney left his home at approximately 5:30 a.m. on December 1st and his wife followed at about 6:30. At 3:30 p.m. Mrs. Seeney discovered their home had been burglarized in their absence. The stolen items were a man's size forty-eight motorcycle jacket, several pocket watches, and some containers of loose change. No other men's clothing was missing. Dawson pled guilty to the Seeney burglary and theft.

Approximately one-half mile from the Seeney home was the residence of Richard and Madeline Kisner, the victim, and their son Brian. Mr. Kisner told the jury that he and his sixteen year old son left their home on December 1st at approximately 7:30 a.m. The couple's truck and 1986 Chrysler LeBaron were in the driveway when they left. Mrs. Kisner was home in the shower when her husband and son departed. Although she routinely arrived at her job everyday by 8:30 a.m., on December 1st she failed to appear at work. Her co-worker phoned the Kisner home several times during the day without any response.

Brian arrived home from school around 3:30 p.m. and noticed his mother in her red housecoat lying on her bed. Thinking she was ill, Brian did not disturb her. Shortly after he arrived home one of his mother's co-workers phoned the house and told Brian his mother had not come to work. Brian went to his mother's room, saw blood around her head and yelled to her. He received no response. He grabbed a knife for protection, called the police, and went outside to wait in the truck.

When the police arrived they observed Mrs. Kisner and a large amount of blood on the bed. The base of a trophy was nearby. She had been gagged with a sock placed over her mouth and knotted at the back of her head. A nylon stocking was around her neck. Her hands were bound with shoestrings. Her obvious injuries included a laceration to the forehead and multiple stab wounds in the chest. An autopsy conducted by the Medical Examiner determined that there were twelve stab wounds to the neck and chest. The cause of Mrs. Kisner's death was cardiac tamponade, a hemorrhage within the pericardial sac which prevents the heart from pumping, and hemorrhage due to the stab wounds.

When Mr. Kisner arrived home he told the police that his wife's 1986 Chrysler LeBaron and her car keys were missing. Also missing was some money. Mr. Kisner explained that his wife routinely carried several two dollar bills in her wallet. No men's clothing was missing.

Mrs. Kisner's car was found in Milford, Delaware on the evening of December 1st, about a half block from a tavern named the Zoo Bar. Inside the car the police located a carton of cigarettes and a corn chip bag, each of which bore Dawson's fingerprints. Patty Davis testified that she and her roommate Geraldine Ryan encountered Dawson at the Zoo Bar that evening. He was wearing a black leather jacket that was too large for him. That same evening the Milford Police spotted a man fitting Dawson's description leaving the Zoo Bar, but were unable to find him. Later that evening, the State Police found a Ford LTD which had been in a one-car accident in Lincoln. The car had been stolen near where the Kisner vehicle was found. In the Ford the police found a leather hat, similar to that worn by the man the Milford Police had seen leaving the Zoo Bar. Approximately 1/2 to 1/2 mile from the accident the police found Dawson hiding on the floor of another car.

When he was apprehended, Dawson was wearing the black leather jacket stolen from the Seeneys'. In the jacket, police found four pocket watches belonging to Mr. Seeney and a two dollar bill. A fifth watch was turned over to the police by Geraldine Ryan, one of Dawson's companions at the Zoo Bar. Dawson also had in his possession a cotton sock which matched in all microscopic and optical properties, as well as in color, composition, and construction, the sock used to gag Mrs. Kisner. Two Excedrin bottles filled with coins and a small knife were also...