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State v. Chao

Superior Court of Delaware, New Castle

June 13, 2014

VICKY CHAO Defendant.


Calvin L. Scott, Jr.Judge

On this 13th day of June, 2014 and upon consideration of the Defendant's Motion for Post-conviction Relief, it appears to the Court that:

1. On December 31, 2013, Defendant Vicky Chao ("Defendant") filed this pro se Motion for Post-conviction relief. For the reasons set forth below, Defendant's motion is DENIED.

2. On March 9, 1988, three members of William Chen's family were killed in a fire in his home.[1] The State charged Defendant and her codefendant, Tze Poong Liu, with multiple counts of arson and murder. Trial took place in the summer of 1989. Defendant testified that her codefendant abducted her by forcing her to accompany him to Mr. Chen's house and, in doing so, he bruised her left leg with his fist. The State presented expert medical testimony to refute Defendant's assertion that she was bruised by her codefendant. The State's expert reviewed a photograph of the bruise taken after Defendant's arrest and testified that the bruise was not consistent with blows from a human fist.

3. After the close of trial, the jury found Defendant guilty of six counts of murder in the first degree, one count of attempted murder in the first degree, one count of arson in the first degree, one count of burglary in the first degree and three conspiracy charges.[2] On May 25, 1990, Appellant was sentenced to seven consecutive life imprisonment sentences without probation or parole and fifteen years of imprisonment. Defendant appealed and, on January 29, 1992, the Delaware Supreme Court affirmed her convictions.[3]


5. On October 25, 1995, less than a week before Defendant's second trial, defense counsel requested the disbursement of public funds to retain a medical expert to testify regarding the bruise.[5] The Court gave Defendant until October 27, 1995 to obtain an expert, but denied her request for public funds.[6] Defendant was unable to obtain an expert who would appear without compensation by that deadline.

6. At the second trial, the State's medical expert testified and, after cross-examination, defense counsel tried again to find a medical expert. Defense counsel located an expert, but the Court denied the defense's request for permission to call the expert because it was after the October 27, 1995 deadline. Defendant was convicted of three counts of first-degree felony murder and other offenses.

7. Defendant appealed her convictions, arguing that the Court erred by not reaching the ineffective assistance of counsel claim and denying her requests for public funds to hire a medical expert and to call an expert mid-trial. The Supreme Court remanded the case to allow this Court to consider the claim for ineffective assistance of counsel. On remand, this Court found that Defendant's ineffective assistance claim was without merit and the Supreme Court affirmed.[7] After Defendant's new appellant counsel discovered that the Supreme Court did not rule on two issues that Defendant raised in the second direct appeal, the Court recalled its mandate.

8. On September 20, 2001, the Supreme Court affirmed Defendant's convictions, holding that this Court was not constitutionally required to provide public funding for the defense to obtain a medical expert and that it did not abuse its discretion when it denied Defendant's mid-trial request to call an expert. The Supreme Court issued its mandate on October 11, 2001.

9. On May 22, 2002, Defendant filed her first pro se motion for post-conviction relief, which was denied on August 22, 2002.[8] On September 16, 2004, Defendant filed another motion for post-conviction relief, which was denied on September 16, 2004.[9] Defendant appealed and, on November 3, 2005, also filed her third motion for post-conviction relief. The Supreme Court remanded and this Court appointed counsel to represent Defendant on May 18, 2006. On September 25, 2006, this Court found that, based on a Supreme Court decision in a different case, it was required to reconsider Defendant's felony murder convictions.[10] The State appealed and the Supreme Court remanded and vacated Defendant's felony murder convictions.[11] On June 20, 2008, the Court entered convictions for three counts of manslaughter in place of the three felony murder convictions. On September 22, 2008, the Court resentenced Defendant and, on April 23, 2009, the Supreme Court affirmed.[12] On December 7, 2009, the Court entered a modified sentence order to provide Defendant with credit for time served. On March 27, 2010, Defendant filed her fourth motion for post-conviction relief. The Court adopted the Commissioner's report and denied Defendant's motion. That denial was affirmed.[13] On March 18, 2013, the District Court denied Defendant's petition for writ of habeas corpus.[14]

10. On December 31, 2013, Defendant filed the instant motion for post-conviction relief. On March 14, 2014, the State opposed Defendant's motion. On April 11, 2014, Defendant filed a handwritten letter and additional documents.[15] Defendant moves for post-conviction relief on two grounds. First, Defendant argues that the Court discriminated against her during the second trial by not allowing her to call an expert witness in order to challenge the State's medical expert's testimony. Second, Defendant asserts a claim for ineffective assistance of counsel based on her counsel's failure to identify an expert witness by the deadline and to cross-examine the State's medical witness.

11. Upon a motion for post-conviction relief, the Court must first determine if any of four procedural bars[16] to relief apply under Del. Super. Ct. Crim. Rule 61(i) before it can consider the merits of the underlying claim.[17] The current version of Rule 61(i)(1), which governs the procedural bar regarding time limitations, states, "A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court."[18]However, before Rule 61(i)(1) was amended, it allowed defendants to file motions for up to three years in cases in which the judgment of conviction became final after July 1, 2005.[19] "A judgment of conviction is ...

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