Martin B. O'Connor, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Patrick J. Collins Esquire and Albert J. Roop, V., Esquire, Attorneys for Defendant Otto Gibbs.
COMMISSIONER'S REPORT AND RECOMMENDATION DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF (SECOND) SHOULD BE DENIED AND COUNSEL'S MOTION TO WITHDRAW SHOULD BE GRANTED.
This 12th day of November, 2014, upon consideration of Defendant's Motion for Postconviction Relief and Defendant's Rule 61 Counsel's Motion to Withdraw, it appears to the Court that:
BACKGROUND AND PROCEDURAL HISTORY
Following a three day trial, on September 8, 1997, Defendant Gary Gibbs was found guilty by a Superior Court jury of Unlawful Sexual Intercourse Second Degree. He was sentenced on October 31, 1997, to 20 years in jail suspended after 15 years, followed by probation. Defendant was arrested under the name Garry Gibbs, but it was later discovered that his real name is Bobby Miller. Defendant was represented at trial by Scott M. Davis, Esquire, of New York, who was admitted pro hac vice for the case on November 18, 1996.
After sentencing, Defendant timely appealed his conviction to the Delaware Supreme Court. The conviction was affirmed on November 19, 1998. The Mandate from the Supreme Court was filed with the Superior Court on December 9, 1998.
Defendant filed his first Motion for Postconviction Relief September 26, 2001. At that time, Defendant made the following claims: (1) that he was denied due process because the State failed to turn over an FBI DNA report that he claimed was exculpatory, (2) ineffective assistance of counsel for trial counsel "failing to recognize the obvious exculpatory potential of semen in a sexual assault case, " (3) trial counsel "abandoned" the agreed upon defense strategy, (4) trial counsel failed to object to "pictures of blood" and related police testimony, (5) trial counsel failed to request a missing evidence instruction, (6) trial counsel improperly referred to the young woman as "the victim, " and (7) trial counsel did not understand the Delaware Court rules, in particular the rape shield law. All of these claims were denied by the Superior Court on January 7, 2002. Undeterred, Defendant appealed this decision to the Delaware Supreme Court, which affirmed the ruling against him on August 28, 2002.
Defendant is now again before the Superior Court having filed a Second Motion for Postconviction Relief (the "Motion") on March 8, 2013.
The facts in this case, as taken from the Delaware Supreme Court Opinion in 1998, are as follows:
The evidence [at trial] proved that Gibbs engaged in sexual intercourse with a sixteen-year-old girl on April 28, 1996. On that date, Gibbs and his friends brought two girls they had met on the street back to his motel room for some drinks. Inside the motel room, Gibbs told the victim that he wanted to talk to her in private and he invited her into the bathroom. In the bathroom, Gibbs stated. "I'm not going to hurt you, " and then pushed the victim to the floor, covered her mouth, and began raping her. The victim managed to escape the motel room when Gibbs noticed her bleeding and ran from the bathroom. She immediately reported the rape to the police and an ambulance took her to the hospital.
Defendant was positively identified during trial by both the victim and her friend. It is also worth noting that the police took photographs of what appeared to be blood on the floor of the bathroom where the victim claimed to have been raped and that she was observed to be bleeding from the vaginal area immediately after the rape. Medical examination at the hospital revealed traces of dried blood and evidence of various injuries to the victim's vaginal area. Finally, ...