August 19, 2014
AUGUSTUS H. EVANS, JR., Defendant-Below, Appellant,
STATE OF DELAWARE, Plaintiff-Below, Appellee
Submitted June 9, 2014
Motion for Rehearing en Banc filed 9/24/14; Denied 9/26/14. Case Closed September 29, 2014.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below: Superior Court of the State of Delaware in and for Sussex County. Cr. ID No. 0609011528A.
Before STRINE, Chief Justice, HOLLAND and RIDGELY, Justices.
Leo E. Strine, Jr. Chief Justice
This 19th day of August 2014, it appears to the Court that:
(1) The appellant, Augustus H. Evans, Jr., filed this appeal from the Superior Court's order dated April 23, 2014 denying his third motion for postconviction relief under Superior Court Criminal Rule 61 (" Rule 61" ). After Evans filed his opening brief on appeal, the appellee, State of Delaware, filed a motion to affirm the Superior Court judgment under Supreme Court Rule 25 (" Rule 25" ).
(2) In July 2007, a Superior Court jury convicted Evans of several criminal offenses related to his September 2006 confrontations with a rival drug dealer in Seaford and a police officer in Laurel. On direct appeal, we affirmed Evans' convictions and sentence. We also affirmed the denial of Evans' first and second motions for postconviction relief.
(3) The following excerpt from our decision on direct appeal provides a context for the claims raised by Evans in this appeal.
The evidence presented at trial fairly established that within a ten to twelve hour period, i.e. from Saturday evening, September 16, 2006 through Sunday morning, September 17, 2006, Evans was involved in two gun incidents. The first incident occurred Saturday night in Seaford, Delaware, when Evans fired three shots at a rival drug dealer, William Witherspoon, hitting Witherspoon once in the left thigh. The second incident occurred Sunday morning in Laurel, Delaware, when Evans pointed a gun at Officer Charles Campbell of the Laurel Police Department.
Evans was arrested on September 17, 2006, for the Laurel incident. Two days later, while in custody pursuant to the Laurel arrest, Evans was interviewed by Seaford Police Lieutenant Richard Jamison about the Seaford incident. During that videotaped interview, which was played for the jury at trial, Evans essentially admitted to shooting Witherspoon.
(4) Evans' opening brief repeats, verbatim, the claims raised in his third postconviction motion. Fairly summarized, Evans' claims entitled " Entitlement to Voluntariness Instruction," " Self-Incrimination," and " Pretrial Detentioners" concern the self-incriminating statements he made to Lieutenant Jamison. Evans' claim entitled " Veracity Challenge/Franks Evidentiary Hearing" concerns the denial of his pretrial request for an evidentiary hearing challenging his arrest on the Laurel charges. Finally, in a claim entitled " Judicial Bias/Abuse of Discretion," Evans alleges that the judge who presided over his jury trial and denied his postconviction motions was biased against him.
(5) " It is well-settled that the Superior Court must address the procedural requirements of Rule 61 before considering the merits of a postconviction motion."  Likewise, when reviewing an appeal from the denial of postconviction relief under Rule 61, this Court will address any applicable procedural bars and any exceptions to those bars.
(6) In this case, the Superior Court concluded, and we agree, that Evans' third postconviction motion was untimely under Rule 61(i)(1) and repetitive under Rule 61(i)(2). We also agree that Evans' postconviction motion raised formerly adjudicated claims under Rule 61(i)(4).
(7) Evans' claims entitled " Pretrial Detentioners" and " Veracity Challenge/Franks Evidentiary Hearing" were considered on their merits on direct appeal and in the Superior Court's denial of Evans' first postconviction motion. Thereafter, on appeal from the denial of Evans' first postconviction motion, we barred the claims as formerly adjudicated. In this appeal from the denial of Evans' third postconviction motion, Evans has not demonstrated that either claim warrants further consideration under the narrow " in the interest of justice" exception found under Rule 61(i)(4).
(8) Evans' claims entitled " Entitlement to Voluntariness Instruction" and " Self-Incrimination" could have been raised on direct appeal and were not. Those claims, therefore, are defaulted under Rule 61(i)(3) unless Evans can demonstrate that an exception to the procedural bar should apply. On appeal, Evans has not demonstrated that either claim warrants review because of a constitutional violation so substantial that it constitutes a " miscarriage of justice" undermining the " fundamental legality . . . or fairness" of Evans' conviction under Rule 61(i)(5) or a newly recognized retroactively applicable right under Rule 61(i)(1). Delaware law does not require the court to give a voluntariness instruction after the court has found a defendant's statement was voluntary. The " law of the case doctrine" bars Evans from relitigating the legality of his arrests and, by extension, his claim that his statements were rendered involuntary due to an illegal arrest. As we have also explained, we held Evans' claim that he was improperly detained as procedurally barred in a prior decision. It remains barred, notwithstanding the different spins he attempts to put on the same basic argument.
(9) We therefore agree with the Superior Court's conclusion that Evans' " effort to revisit his [claims] by repackaging same under a claim of judicial bias and/or incompetence must fail." Based on our foregoing analysis of the other claims on appeal, we similarly conclude that Evans' derivative claim of " Judicial Bias/Abuse of Discretion" is not supported by the record and is without merit.
(10) Lastly, we note the obvious: This is Evans' third Rule 61 petition. We have now concluded for a third time that the Superior Court has properly found that Evans' claims do not present grounds for relief from his judgment of convictions by the court. Each time we have invested considerable time to detail our reasons. In the future, if Evans files additional petitions, we do not intend to continue to invest scarce judicial resources in addressing Evans' repetitive claims. We also encourage Evans to be mindful of subsection (j) of Rule 61.
NOW, THEREFORE, IT IS ORDERED, that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.