Submitted: December 10, 2014
Martin O'Connor, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
John A. Barber, Esquire, 1232 N. King Street, Suite 300, Wilmington, Delaware 19801, Attorney for Defendant Myron Gibbs.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED._
This 27th day of January, 2015, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. On July 7, 2010, after a five-day trial, a Superior Court jury found Defendant Myron Gibbs guilty of Rape in the Second Degree (as a lesser included offense of Rape in the First Degree), Rape in the Fourth Degree and Offensive Touching. Defendant Gibbs was acquitted of Kidnapping in the Second Degree.
2. On September 17, 2010, after a presentence investigation, Defendant Gibbs was sentenced to a total of 20 years at Level V, suspended after 15 years, for 30 months at Level IV, suspended after 6 months, for two years Level III probation.
3. Defendant filed a direct appeal to the Delaware Supreme Court. On August 3, 2011, the Delaware Supreme Court affirmed the judgment of the Superior Court.
DEFENDANT'S RULE 61 MOTION
4. On August 6, 2012, Defendant filed a pro se motion for postconviction relief.Thereafter, Defendant was assigned counsel and an Amended Motion for Postconviction Relief was filed on June 2, 2014. In the subject motion, as amended by Rule 61 counsel, Defendant claims that trial counsel and, thereafter appellate counsel, were ineffective for failing to object to the introduction of the out-of-court statement of the alleged victim. Defendant claims that the State did not establish the foundational requirement of truthfulness, as required by 11 Del. C. § 3507, for the admission of the out-of-court statement.
5. Before making a recommendation, the Commissioner enlarged the record by directing Defendant's trial and appellate counsel to each submit an Affidavit responding to Defendant's ineffective assistance of counsel claim. Thereafter, the State filed a response to the motion. Defendant was also given an opportunity to file a reply thereto.
FACTS RELEVANT TO RULE 61 MOTION
6. The subject charges stem from the sexual assault of Naifisah Butler on November 12, 2009. Ms. Butler, who was 17 years old at the time of the incident, claimed that on November 12, 2009, while she was walking home in the rain, Defendant stopped his truck and offered to give her a ride home. Since it was raining, she accepted the ride. Instead of taking her the short distance to her home, Defendant Gibbs made several other stops around the City of Wilmington and ultimately took her back to his apartment on the other side of town.
7. At trial, Ms. Butler testified that Defendant Gibbs forced her into his apartment, locked her in a room, tied her hands behind her back, pushed her repeatedly on the bed, slapped her, removed her pants and underwear, penetrated her vagina with his penis and ultimately ejaculated inside of her. Ms. Butler testified that when she was able to leave the apartment, she immediately went to her aunt's home a block away and called her father. Ms. Butler described going to the hospital, having an examination by the SANE (Sexual Assault Nurse Examiner) nurse and speaking with Detective Ronald Mullin at the Wilmington Police Department.
8. Ms. Butler's interview with Detective Mullin on the day of the incident, November 12, 2009, was recorded.
9. The DNA evidence offered at trial conclusively established that a sexual encounter occurred between Ms. Butler and Defendant Gibbs.
10. The defense, therefore, was that the sexual encounter that occurred between Ms. Butler and Defendant Gibbs on November 12, 2009 was consensual in nature. The defense further contended that the State's evidence failed to show any forcible rape or kidnapping by Defendant Gibbs.
11. After testifying at trial about the sexual encounter with Defendant Gibbs and before Ms. Butler's prior recorded statement was admitted, the prosecutor ...