State of Delaware v. Wright. ( 2015 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, )
)
v. )
)
CLIFFORD WRIGHT, )
) Cr. ID. No. 0801010328
Defendant. )
)
)
Submitted: November 24, 2014
Decided: February 12, 2015
Upon Defendant’s Amended Motion for Postconviction Relief
DENIED
OPINION
Morgan T. Zurn, Deputy Attorney General, Department of Justice, Attorney for the
State.
Albert J. Roop, V, Esquire, Patrick J. Collins, Esquire, Collins & Roop, Attorneys
for Defendant.
JOHNSTON, J.
FACTUAL AND PROCEDURAL CONTEXT
In June of 2006, Defendant Clifford Wright (“Wright”) resided with his
girlfriend, Tamela Gardner (“Gardner”), at Gardner’s home. Wright and Gardner
had a contentious relationship. After the relationship ended on or about July 1,
2006, Wright began harassing Gardner. Wright’s harassment culminated during
the early hours of July 9, 2006, when Wright snuck into Gardner’s home and
murdered Gardner and her friend Gabriel Gabrielli (“Gabrielli”) while they slept.
The exact murder weapon used by Wright is unknown. However, Gardner
and Gabrielli suffered at least 8 and 11 injuries to the head, respectively, without
displaying any defensive wounds. Following the murders, Wright dragged the
bodies out of Gardner’s home and into Gardner’s van. Wright then drove the van
to Tweed’s Park, and set the van on fire. On July 13, 2006, the van, along with
Gardner and Gabrielli’s bodies, were found.
On January 22, 2008, a grand jury indicted Wright for, among other crimes,
the murders of Gardner and Gabrielli. The State of Delaware (“State”) requested
the death penalty. Wright’s jury trial began on October 5, 2009, and concluded on
November 19, 2009. Wright was represented by Jerome M. Capone, Esquire and
Brian J. Chapman, Esquire (collectively “Trial Counsel”).
At trial, the State called two key witnesses. The first was Robert Mahan
(“Mahan”), a convicted felon who shared a jail cell with Wright for five days in
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2008 at the Howard R. Young Correctional Institute. The second was Jennie
Vershvovsky, M.D. (“Dr. Vershvovsky”), the Assistant Medical Examiner for the
Delaware Office of the Chief Medical Examiner.
Mahan testified that during the five days he and Wright shared a cell, they
discussed Wright’s background, Wright’s relationship with Gardner, and
eventually the murders of Gardner and Gabrielli. There were two critically
important aspects of Mahan’s testimony. First, Mahan testified: “[Wright] said
Detective Abrams had told [Wright’s] brother that the weapon used against
[Gardner and Gabrielli] was a hammer and [Wright] proceeded to tell me…this
wasn’t the case at all…[Gardner and Gabrielli] were killed with a bat…an
aluminum [baseball] bat.” Second, Mahan testified that after Wright came back to
their shared jail cell from a meeting with Trial Counsel, Wright appeared pale. He
told Mahan: “[The State is] talking about executing me, taking my life.” Mahan, in
an attempt to calm Wright, told him not to worry because he did not commit the
murders, to which Wright responded: “But I did.”
A few days later Dr. Vershvovsky testified at trial. Dr. Vershvovsky was the
forensic pathologist who conducted the autopsies of Gardner and Gabrielli. Dr.
Vershvovsky testified that the cause of death for both Gardner and Gabrielli was
“blunt force injury to [the] head.” Dr. Vershvovsky did not opine on the specific
object used to murder Gardner and Gabrielli, but did testify that: “It can be any
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blunt object which has a smooth, circular surface.” When confronted by Trial
Counsel on cross-examination as to whether a baseball bat could have been the
murder weapon, Dr. Vershvovsky testified that it was a possibility.
At the close of trial, the jury returned a guilty verdict for all charges.1
Wright subsequently filed a Motion for a New Trial.
Following the guilty verdict, but before ruling on Wright’s Motion for a
New Trial, the Superior Court held a penalty phase hearing from November 30 to
December 10, 2009. At the end of the penalty phase hearing the jury returned a
verdict of 7-5 in favor of death. On March 5, 2010, this Court sentenced Wright to
life in prison without parole for each conviction of first degree murder. 2
Wright filed a timely appeal to the Delaware Supreme Court on March 31,
2010. Upon Wright’s motion, the Delaware Supreme Court remanded Wright’s
case to the Superior Court to rule on Wright’s motion for a new trial. On July 30,
2010, the Superior Court denied Wright’s Motion for a New Trial.3 Subsequently,
on October 24, 2011, the Delaware Supreme Court affirmed Wright’s conviction.4
On August 23, 2012, Wright filed a motion for appointment of counsel to
pursue postconviction relief. The Superior Court granted the motion and appointed
1
The jury found Wright guilty of four counts of first degree murder, five counts of possession of
a deadly weapon during the commission of a felony, first degree burglary, second degree arson,
noncompliance with conditions of a bond, aggravated harassment, third degree arson, and theft
of a motor vehicle.
2
State v. Wright, 2010 WL 746240, at *1 (Del. Super.).
3
State v. Wright, 2010 WL 3005445, at *1 (Del. Super.).
4
Wright v. State, 31 A.3d 77 (Del. 2011) (TABLE).
4
counsel on October 17, 2012. On October 18, 2012, Wright filed a pro se Motion
for Postconviction Relief (“Motion”) pursuant to Superior Court Rule 61. On
August 1, 2014, Wright’s appointed counsel filed an amended motion.
DEFENDANT’S RULE 61 MOTION
Wright’s Motion raises only one ground for postconviction relief: that Trial
Counsel was ineffective in failing to investigate and present any evidence or
testimony to rebut the testimony of the Dr. Vershvovsky and Mahan.
STANDARD OF REVIEW
Rule 61 of the Superior Court Rules of Criminal Procedure (“Rule 61”)
governs motions for postconviction relief. In reviewing motions for postconviction
relief, Delaware law requires the Court to first look at Rule 61’s procedural
requirements before examining the motion on its merits.5 Rule 61(i) sets forth the
possible procedural bars to post-conviction relief: (1) a motion for postconviction
relief cannot be filed more than one year after the judgment of conviction is final;
(2) any ground for relief not asserted in a prior postconviction motion is barred; (3)
any ground for relief not asserted in the proceedings leading to the judgment of
5
Ayers v. State, 802 A.2d 278, 281 (Del. 2002).
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conviction is barred; (4) any ground for relief that was formerly adjudicated is
barred.6
ANALYSIS
Ineffective Assistance of Counsel
Rule 61(a)(1) provides in relevant part:
This rule governs the procedure on an application by a person in
custody under a sentence of this court seeking to set aside the
judgment of conviction…on the ground that the court lacked
jurisdiction or any other ground that is a sufficient factual and legal
basis for a collateral attack upon a criminal conviction….(emphasis
added).
Therefore, claims of ineffective assistance of counsel at trial and on direct
appeal are appropriate in motions for postconviction relief.7 Ineffective assistance
of counsel claims are evaluated under the two-pronged test set forth in Strickland
v. Washington.8 To succeed on a claim under Strickland, the petitioner must show:
(1) that “counsel’s representation fell below an objective standard of
reasonableness;” and (2) that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”9
6
Super. Ct. Crim. R. 61(i).
7
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
8
466 U.S. 668 (1984). See also Ayers, 802 A.2d at 281 (“A petitioner’s claim that he received
ineffective assistance of counsel is measured under the test articulated by the United States
Supreme Court in Strickland v. Washington.”).
9
Strickland, 466 U.S. at 688, 694. See also Flamer, 585 A.2d at 753.
6
The test articulated in Strickland creates a strong presumption that counsel’s
representation was professionally reasonable. 10 The “benchmark for judging any
claim of ineffectiveness [is to] be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” 11 Therefore, a motion for postconviction relief
“must make concrete allegations of actual prejudice, and substantiate them,” or risk
being dismissed.12
Parties’ Contentions
Wright contends that Trial Counsel was ineffective because their failure to
investigate and present any evidence or testimony to rebut the testimony of Mahan
and Dr. Vershvovsky prejudiced Wright. Specifically, Wright asserts that Trial
Counsel should have consulted with an expert in forensic pathology to aid in the
cross-examination of Dr. Vershvovsky and to rebut Mahan’s testimony concerning
the alleged murder weapon. Wright argues that if a forensic pathologist could have
ruled out the possibility that a baseball bat was used to murder Gardner and
Gabrielli it would have effectively rebutted Mahan’s testimony.
Conversely, the State argues that Trial Counsel’s failure to hire a forensic
pathologist was not objectively unreasonable. The State also argues that Wright
10
Flamer, 585 A.2d at 753.
11
Cooke v. State, 977 A.2d 803, 840 (Del. 2009) (quoting Strickland, 466 U.S. at 688).
12
Couch v. State, 2008 WL 390754, at *1 (Del.).
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cannot show there is a reasonable probability that, but for Trial Counsel’s failure to
hire a forensic pathologist expert the result of trial would have been different. The
State asserts that a forensic pathologist’s rebuttal opinion on the murder weapon
would not have impeached Mahan’s testimony. The State argues that the purpose
of Mahan’s testimony was to show that Wright had told Mahan the police’s theory
about the murder weapon—information that Mahan only could have received from
Wright. The State asserts it used the murder weapon testimony to support Mahan’s
credibility, not as proof of the actual murder weapon used in the murders.
Discussion
The Court initially will address Wright’s motion with respect to Rule 61’s
procedural requirements. The Court first finds that Wright’s motion was filed
timely under Rule 61(i)(1). Wright filed this motion on October 18, 2012, which
was within one-year from the Delaware Supreme Court’s affirmation of Wright’s
conviction on October 24, 2011. Second, the Court finds that Rule 61(i)(2) is
satisfied because this is Wright’s first-filed motion for postconviction relief. Third,
the Court finds that Rule 61(i)(3) is satisfied because Wright’s ineffective
assistance claim has not been previously raised. A claim of ineffective assistance
is only proper in a motion for postconviction relief.13 Finally, Rule 61(i)(4) is
13
Flamer, 585 A.2d at 753.
8
satisfied because this is the first time Wright has raised an ineffective assistance of
counsel claim. Thus, Wright’s claim has not been previously adjudicated.
Turning to the merits of Wright’s motion, Wright argues that Trial Counsel
were ineffective because they did not solicit advice or testimony from a forensic
pathologist. Wright contends:
Trial counsel’s failure in this regard was significant. Mr.
Wright needed a forensic pathologist to review Dr. Vershvovsky’s
findings and to rebut Mahan’s claim that a bat had been used to
murder Ms. Gardner and Mr. Gabrielli. Had trial counsel’s expert
ruled out the possibility that a bat was used, as Vershvovsky would
not, it would have established that Mahan – a man in an unenviable
situation given his condition at the time – lied. A lie would have
called into question the remainder of Mahan’s testimony, which was
already questionable.
A forensic pathologist ruling out a bat would have provided
meaningful rebuttal to the State’s arguments regarding Mr. Wright’s
supposed admissions to Mahan. Instead, trial counsel failed to hire an
expert and as a result was ineffective. Trial counsel was totally
unprepared to confront Mahan’s statement. It missed out on the
opportunity to rule out the use of a bat due to the diameter of the
injuries and to discuss the amount of force necessary to use the handle
of a bat to cause the injuries in this case, as the State suggested was
possible on re-direct. The mechanics of swinging a hammer differ
greatly from poking someone with the handle of a baseball bat, and
thus the force generated will vary. Either way, trial counsel’s mistake
allowed the State to tie its circumstantial case together with a
“confession,” and therefore prejudiced Mr. Wright.
Assuming arguendo that a forensic pathologist would have testified that a
baseball bat could not have been the murder weapon, Wright has failed to show
that the testimony of a forensic pathologist would have changed the outcome of the
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trial. With regard to Mahan’s testimony, the identity of the actual murder weapon
is irrelevant. The only pertinent information was what had been conveyed to
Wright, by Trial Counsel, about their impression of what the State believed about
the murder weapon. At the time Wright and Mahan were incarcerated together, the
State’s investigator believed that the murder weapon was a hammer. That belief
was provided to Trial Counsel, who in turn conveyed the hammer theory to
Wright. Wright subsequently told Mahan what the State believed.
The only purpose of forensic rebuttal expert testimony would be to rule out a
bat as the actual murder weapon. Having such testimony would not serve to
discredit Mahan. Mahan’s statement went to the conveyed belief of the State’s
investigator, not to the accuracy of that belief. The Court finds the State’s purpose
for eliciting Mahan’s testimony regarding the weapon—that Wright had told
Mahan the police were incorrect about the murder weapon—was to buttress
Mahan’s credibility as to the other statements made by Wright.
In short, the State did not use Mahan’s testimony to pursue a theory that the
murder weapon was a baseball bat. A forensic pathologist’s opinion that a baseball
bat could not have been the murder weapon would not have changed the fact that
Mahan knew intimate details of the murder investigation, which were not readily
known to the public. Nor would it change the fact that Wright confessed the
murder to Mahan in their shared jail cell.
10
Wright also suggests that “Mahan was a drug-addicted inmate serving time
for a felony DUI and suffering immense pain from esophageal cancer. He
admitted that he was withdrawing from his narcotic medications and could not
sleep at the time he met Mr. Wright. He was ripe for impeachment.” However,
the Court finds that Trial Counsel did attempt to impeach Mahan’s credibility
based on those same factors. Trial Counsel confronted Mahan several times about
the physical and mental symptoms he was experiencing during his narcotic
withdrawal. Trial Counsel also questioned Mahan about the circumstances
surrounding how Mahan came to know about the police’s thoughts as to the
murder weapon.
Similarly, a forensic pathologist’s opinion would not necessarily undermine
Dr. Vershvovsky’s opinion. Dr. Vershvovsky did not opine that a baseball bat was
the actual weapon used to murder Gardner and Gabrielli. Instead, Dr.
Vershvovsky opined that Gardner and Gabrielli were killed because of “blunt force
injuries” that could have been caused by “any blunt object which has a smooth,
circular surface.” Only when confronted by Trial Counsel with hypothetical
questions on cross-examination did Dr. Vershvovsky state that it was possible that
the murder weapon could be a baseball bat. Therefore, a defense forensic
pathologist ruling out a baseball bat as the murder weapon may have eliminated the
potential for a baseball bat to be the murder weapon, but it would not have changed
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Dr. Vershvovsky’s opinion that the murder weapon was a blunt object with a
smooth, circular face.
CONCLUSION
The Court finds that Wright is unable to establish a claim for ineffective
assistance of counsel under Strickland. Wright has failed to show that: (1) Trial
Counsel’s representation fell below an objective standard of reasonableness; and
(2) there is a reasonable probability that, but for Trial Counsel’s unprofessional
errors, the result of the proceeding would have been different.
THEREFORE, Defendant Clifford Wright’s Amended Motion for
Postconviction relief is hereby DENIED.
IT IS SO ORDERED.
/s/__Mary M. Johnston___________
The Honorable Mary M. Johnston
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