It appears from the record that Francis and Guy were found
shot to death on September 1, 2008 (hereinafter “the
shooting”) in the front seat of a bullet-ridden black
Lexus (hereinafter “the vehicle”) in the 500
block of E. 10th Street. The first police officer to arrive
at the scene found the vehicle stopped in the middle of
traffic, still in gear and wedged against another car.
Detective John Ciritella of the Wilmington Police Department
(hereinafter “Ciritella”) was assigned to
investigate the shooting. As the investigation unfolded,
Ciritella theorized that the shooting occurred from inside
the vehicle as it was leaving the 700 block of E. 10th Street
and that the vehicle continued moving until it came to a stop
in the 500 block.
Ciritella recovered a significant number of bullets, bullet
fragments and/or shell casings, from the interior of the
vehicle, the 700 block of E. 10th Street, and the
victims' bodies following the medical examiner's
autopsies. Ciritella did not, however, recover a weapon that
was used in the shooting.
At trial, Ciritella testified that initially and for several
months after the shooting, he could not develop a lead on a
suspect. Finally, however, in April 2009, Ciritella was
advised that an inmate in federal custody, Christopher
Waterman, was interested in disclosing information about the
shooting that he had allegedly heard from another inmate. The
other inmate turned out to be [Petitioner], Similarly, in May
2009 and December 2009, Ciritella learned that inmates
William Coleman and Isaiah Fields also wanted to disclose
information that another inmate, again [Petitioner],
purportedly told each of them about the shooting. Ciritella
conducted individual one-on-one interviews with Waterman,
Coleman and Fields. As a result of those interviews,
Ciritella learned that between the fall of 2008 and the
spring of 2009, [Petitioner] allegedly individually told
Waterman, Coleman and Fields at different times that he was
either in the vehicle during the shooting or that he was the
shooter, and that the weapon involved in the shooting was a
“Mac 10,” which Ciritella knew was a candidate
weapon. Ciritella also learned from Waterman, Coleman and
Fields that the shooting was possibly the result of a botched
robbery or a dispute over a drug deal, and that the gun had
discharged unexpectedly in the vehicle.
Ciritella learned additional information from Coleman about
[Petitioner's] possible involvement in the shooting,
namely that [Petitioner] was worried that a resident of the
700 block of E. 10th Street, April Gardner, had witnessed the
shooting. Moreover, Fields told Ciritella that he was with
[Petitioner] in June or July 2008 at 930 Spruce Street, a
drug hangout, when the “Mac 10” [Petitioner] was
holding suddenly went off and sprayed gunfire.
As a result of his interview with Fields, Ciritella obtained
a search warrant for 930 Spruce Street and in the ensuing
search found a number of bullet holes in the floor and walls
from which he recovered three bullets. From his interview
with Coleman, Ciritella was able to locate Gardner at her 729
E. 10th Street home. Gardner told Ciritella that she
witnessed the events leading to the shooting on September
1,2008 from the front steps of her home.
At trial, Gardner testified that, prior to the shooting, she
was outside sitting on her front steps watching her grandson
ride his bicycle when she observed [Petitioner] and another
male-later identified as Guy-walking down 10th Street.
Gardner told the jury that she knew [Petitioner] because he
had grown up in the neighborhood and had gone to school with
her children.
Gardner testified that she observed [Petitioner] and his
companion approach another man who was sitting in the
driver's seat of a vehicle that was parked directly in
front of her house. According to Gardner, after the three men
conversed briefly, Guy got into the right front passenger
seat of the vehicle and [Petitioner] got into the right rear
passenger seat.
Gardner testified that moments after the two men entered the
vehicle the vehicle's windows “erupted."
Shocked by the explosion, Gardner said, she immediately
“grabbed [her] grandson" and ran to her
daughter's house around the corner on Bennett Street
where she remained for several hours before returning home.
Gardner testified that as she ran from the scene, she could
feel shards of glass getting caught in her hair, and that she
had “glass all in [her] hair” when she reached
her daughter's house. Gardner further testified that
[Petitioner] came to her home later that evening “to
apologize,” but that she refused to speak to him.
On September 28, 2009, [Petitioner] was charged with two
counts of Murder in the First Degree, two counts of
Possession of a Firearm During the Commission of a Felony and
one count of Possession of a Firearm by a Person Prohibited.
[Petitioner] went to trial on those charges on October 26,
2010.
At trial, the State's ballistics expert, Delaware State
Police Firearms Examiner Carl Rone (hereinafter
“Rone”), opined that the strafing of the
vehicle's interior was the result of a semi-automatic or
automatic weapon discharging more than thirty rounds inside
the vehicle from the area of the right rear passenger seat.
Rone further opined that the sixteen bullets and thirty spent
shell casings he examined, which were recovered from the
vehicle, the victims' bodies, and 930 Spruce Street, all
came from the same semi-automatic or automatic weapon.
[Petitioner] testified at trial that he visited “Miss
April” later in the evening on September 1, 2008,
because he was sorry to hear that Leighton and Francis had
been shot in front of her house, and that she had witnessed
the shooting. [Petitioner] also testified that, a few days
prior to the shooting, he had a conversation with Leighton
and Guy, while in the vehicle, about a gun his cousin wanted
to sell. According to [Petitioner], the gun he was helping
his cousin sell “hold[s] 30 rounds” and was
“the same gun that went off in the house [on] 930
Spruce Street.” [Petitioner] denied any involvement in
the
shooting, however, and he testified that at the time of the
shooting he was “cooking up some drugs” at 930
Spruce Street.
Washington v. State, 31 A.3d 77 (Table), 2011 WL
4908250, at *1-2 (Del. October 14, 2011).
On
September 28, 2009, a New Castle County grand jury charged
Petitioner by indictment with two counts of first degree
murder, two counts of attempt first degree robbery, two
counts of possession of a firearm during the commission of a
felony (“PFDCF”), and one count of possession of
a firearm by a person prohibited (“PFBPP”). (D.1.
76-1 at Entry No. 1;1 D.1. 47-3 at 1-4) On November 11,2010,
a Delaware Superior Court jury found Petitioner guilty of two
counts of the lesser-included offense of manslaughter and two
counts of PFDCF. (D.1. 76-1 at Entry No. 41) The jury found
Petitioner not guilty of the attempted robbery charges.
(Id.) On February 11,2011, the Superior Court
sentenced Petitioner to an aggregate of eighty-six years of
imprisonment at Level V, suspended after sixty-six years for
decreasing levels of supervision. (D.1. 76-1 at Entry No. 48)
The Delaware Supreme Court affirmed Petitioner's
conviction on direct appeal. See Washington, 2011 WL
4908250, at *4.
In
March 2012, Petitioner filed a pro se motion for
postconviction relief pursuant to Delaware Superior Court
Criminal Rule 61 motion (interchangeably referred to as
“Rule 61 motion” or “first Rule 61
motion"). (D.1. 76-3) He filed an amended Rule 61 motion
on August 8, 2012 (also interchangeably referred to as
“Rule 61 motion” or “first Rule 61
motion”). (D.1. 47-1 at Entry No. 77) Defense counsel
filed Rule 61 affidavits in
response to Petitioner's Rule 61 motion. (D.1. 47-1 at
Entry Nos. 81, 82) The State filed a response to the Rule 61
motion on October 31,2012. (D.1. 47-22) The Superior Court
appointed post-conviction counsel to represent Petitioner
during his Rule 61 proceeding. (D.1. 76-1 at Entry Nos.
99-101, 139, 140) Thereafter, the Superior Court sequentially
appointed three substitute postconviction counsel. (D.1. 76-1
at Entry Nos. 110, 112, 115, 120) On July 17, 2015,
Petitioner's last appointed post-conviction counsel
concluded that there were no meritorious issues he could
advocate on Petitioner's behalf and filed a motion to
withdraw as counsel. (D.1. 76-1 at Entry No 125) Petitioner
responded to the motion withdraw, and the Superior Court
ordered postconviction counsel to file an affidavit outlining
the work he had performed. (D.1. 76-1 at Entry Nos. 127, 129)
Post-conviction counsel filed his letter affidavit on
November 15, 2015. (D.1. 76-1 at Entry No. 146)
Petitioner
requested, and was granted, an extension of time to file an
amended pro se Rule 61 motion after consulting with
a private investigator. (D.1. 76-1 at Entry Nos. 131-136
138) Petitioner filed amendments to his Rule 61 motion in
March 2016, which consisted of three new claims (also...
