Submitted: February 6, 2012
Elizabeth R. McFarlan, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Joseph M. Bernstein, Esquire, Attorney for Defendant Purnell.
On April 25, 2008, Mark Purnell ("Purnell" or "Defendant") was convicted, following a trial by a jury, of Murder in the Second Degree, Attempted Robbery in the First Degree, Possession of a Firearm During the Commission of a Felony, Possession of a Deadly Weapon During the Commission of a Felony, Conspiracy in the Second Degree, and Possession of a Deadly Weapon by a Person Prohibited. On October 17, 2008, this Court sentenced Purnell to an aggregate of 77 years of Level V incarceration, 21 years of which was mandatory, suspended after 45 years for decreasing levels of supervision. Purnell filed a timely appeal of the sentence to the Delaware Supreme Court, which affirmed his conviction and sentence on August 25, 2009.
On March 25, 2010, Purnell filed a pro se Motion for Postconviction Relief. Purnell subsequently retained counsel, and, with the Court's consent, filed an Amended Motion for Postconviction Relief on October 11, 2011. In the Amended Motion, Purnell raised three grounds for relief, all of them alleging ineffective assistance of counsel. These claims are as follows:
a. Ineffective assistance of trial counsel for failure to request a jury instruction concerning the credibility of accomplice testimony under Bland v. State and its progeny;
b. Ineffective assistance of counsel for failure to request a jury instruction concerning the effect of Harris' guilty plea and failure to raise the issue on direct appeal; and
c. Ineffective assistance of counsel for failure to object to prosecutorial "vouching" for credibility of Harris.
The State filed a response to the motion and Defendant filed a reply thereto. Following the Delaware Supreme Court's decision on February 23, 2012, in Brooks v. State,  counsel were offered an opportunity to file supplemental submissions, which they did.
This Court referred the matter to Superior Court Commissioner Lynn M. Parker pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for findings of fact and recommendations based on the application of pertinent law. The Commissioner, after considering the merits of any claim of ineffective assistance by trial counsel, issued the Findings of Fact and Recommendations on July 3, 2012, recommending that Purnell's Amended Motion for Postconviction Relief be denied. On July 17, 2012, Purnell appealed from the Commissioner's Findings of Fact and Recommendations. Additional submissions were received, and on December 6, 2012, this Court held Oral Argument on the matter. A transcript was requested, and received by the Court on February 6, 2013, at which time the Court took the matter under advisement.
The Commissioner's recitation of the facts in this matter is quite complete and is substantially included herein.
In the early evening hours of January 30, 2006, Ernest and Tameka Giles were walking along the sidewalk near Fifth and Willing Streets in Wilmington, Delaware. The married couple were carrying several shopping bags containing their recent purchases from Walmart. As they walked, two young men approached them and demanded money. Mrs. Giles recognized one of the men, calling him by his name, Mark. Mrs. Giles refused to give up her belongings and kept walking. The young man then fired a single shot, hitting Mrs. Giles in the back. She fell to the ground and Mr. Giles screamed for help. The two men fled the scene. Paramedics transported Mrs. Giles to the Christiana Hospital where she died from her injuries.
Angela Rayne, who was smoking crack cocaine, witnessed the murder/attempted robbery while sitting on a step near the intersection of Fifth and Willing Streets. Rayne saw two young men walk past her, turn around, and then walk past her again. She then saw a man and a woman coming up the hill and observed the two pairs of people walk past each other. Rayne heard one gunshot and then saw the two young men running away.
Rayne testified that she had seen one of the two assailants earlier in the day at Fifth and Jefferson Streets in the company of the Wilmington police. Using that information, the police developed a suspect, Ronald Harris, and included his picture in a photo array. After viewing that array during an interview with the police on February 16, 2006, Rayne identified Harris as the assailant whom she had seen earlier on the day of the attack.
Shortly after the shooting, the police briefly interviewed Mr. Giles at the hospital while his wife was being treated for her injuries. Mr. Giles was interviewed a second time at the police station on February 3, 2006. By that time, the police had discovered a number of facts that led them to believe that Mr. Giles might have had some involvement in the incident. He then became a person of interest in the investigation of his wife's murder. Mr. Giles had a history of domestic violence directed against his wife. The police discovered that Mr. Giles lied to them about his reason for being in the vicinity of the shooting and about his whereabouts after Mrs. Giles died in the hospital. The police also discovered that Mrs. Giles had made statements that her husband had stolen her tax refund in 2005. Additionally, the police learned that only a day or two before the murder, Mrs. Giles had received a tax refund check in the amount of $1748. Tameka Giles had cashed the tax refund check the day she was murdered. Mr. Giles lied to the police about how the refund check was spent.
During his second interview with police on February 3, 2006, Mr. Giles initially stated that he did not believe that he would be able to recognize the perpetrators unless they were dressed the same way that they had been at the time of the crime. Later, while alone in the interview room, Mr. Giles made several cell phone calls and indicated to his callers that the police viewed him as a suspect. After this, the police asked Mr. Giles to look at a photo array, which did not contain Purnell's photo. Mr. Giles selected two pictures that he stated, taken in combination, were "close" to what one of the perpetrators looked like, but only if the men in the photos were 5'4" or 5'5" in height.
On February 16, 2006, police interviewed Mr. Giles a third time. During that interview, Mr. Giles stated that he had only seen the shooter from the side and that the shooter was wearing a hat. Shown another photo array, Mr. Giles then selected two more photographs that he said looked similar to the shooter. One of those photos was of Kellee Mitchell. Mr. Giles then pointed to the picture of Mitchell and said "it might have been him, " and that between the two photos, the shooter looked most like Kellee Mitchell. Then, after some hesitation, he said that he could be wrong, it might have been the other one.
Based on Rayne's identification of Harris and Mr. Giles' identification of Mitchell, the police applied for and were granted search warrants for Harris' and Mitchell's apartments. Both apartments were in the same building about five blocks from the shooting. The police executed the search warrants on February 18, 2006 and arrested both Harris and Mitchell.
Purnell, who was not a suspect at the time of the search warrant, was inside Harris' apartment. The police did not arrest Purnell.
The police did not charge Harris or Mitchell with killing Mrs. Giles. Harris was charged with attempted robbery in the first degree, possession of a deadly weapon during the commission of a felony, and conspiracy. Mitchell was charged with an unrelated firearms offense.
A few days after the police execution of the search warrants and the arrest of Harris and Mitchell, the police separately showed Giles and Rayne photo arrays containing Purnell's picture. Neither Giles nor ...