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Brathwaite v. State

Supreme Court of Delaware

April 27, 2015

KEVIN C. BRATHWAITE, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee

Submitted: February 10, 2015.

Case Closed May 13, 2015.

Editorial Note:

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 New Castle County. Cr. ID No. 9510007098.

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

ORDER

Karen L. Valihura, Justice.

This 27th day of April 2015, upon consideration of the appellant's opening brief and the appellee's motion to affirm, it appears to the Court that:

(1) The appellant, Kevin C. Brathwaite, filed this appeal from the Superior Court's August 29, 2014 order that denied his third motion for postconviction relief and motions for appointment of counsel and discovery.[1] The appellee, State of Delaware, has moved to affirm the Superior Court's judgment on the ground that it is manifest on the face of Brathwaite's opening brief that the appeal is without merit.[2] We agree and affirm.

(2) In a thirty-one count superseding indictment filed in 1996, Brathwaite was charged with having committed a series of sexual assaults between September 1995 and June 1996.[3] At Brathwaite's jury trial in 1998, the Superior Court severed three counts and dismissed six counts, and the State nolle prossed one count. Of the twenty-one counts that remained, the jury acquitted Brathwaite of two counts and convicted him of nineteen counts, including six counts of Unlawful Sexual Intercourse (" USI" ) in the First Degree, two counts of USI in the Second Degree, and seven counts of USI in the Third Degree.[4]

(3) On December 4, 1998, the Superior Court sentenced Brathwaite to six consecutive life sentences for the first degree USI convictions and to a total of 110 years for the second and third degree USI convictions.[5] On direct appeal, we affirmed the convictions and sentences.[6]

(4) At the conclusion of his direct appeal in 1999, Brathwaite filed a motion for new trial (" New Trial Motion" ) under Superior Court Criminal Rule 33 (" Rule 33" ) based on claims of newly discovered evidence and ineffective assistance of trial counsel. The Superior Court appointed counsel (hereinafter " Postconviction Counsel" ) to represent Brathwaite. Postconviction Counsel supplemented the New Trial Motion with a claim under Superior Court Criminal Rule 61 (" Rule 61" ) that the Superior Court had violated Brathwaite's constitutional right to represent himself at trial (hereinafter " self-representation claim" ).

(5) The Superior Court held evidentiary hearings on November 2, 2001 and May 21, 2002. At the first evidentiary hearing, the defense submitted a sexually explicit photograph that, according to Brathwaite, he took in his apartment in 1995, and a hostile anonymous letter gloating that Brathwaite was falsely convicted. After Brathwaite testified that the photograph was of one of the victims and that the anonymous letter was written by the same victim, the defense argued that the photograph and letter were exculpatory because the photograph proved that Brathwaite and the victim had a consensual sexual relationship, and that the letter proved that the victim testified falsely at trial. Brathwaite further testified that he had additional, similar photographs and a sexually explicit videotape of the same victim, but that those items were confiscated by the Department of Correction (" DOC" ) in 2000 and 2001 and then misplaced by the Office of the Attorney General.

(6) At the second evidentiary hearing, Brathwaite testified that the DOC had, earlier that morning and during the previous week, confiscated eighteen additional letters that he intended to submit as exculpatory evidence at the hearing. According to Brathwaite, three letters were from the victim's sister and the rest were from a female friend of Brathwaite, who testified as a defense witness at the first evidentiary hearing. As to the additional eighteen letters, the Superior Court indicated that it would " assume that the letters existed, for present purposes," that three letters from the victim's sister " basically said all the charges by [the victim] were made up," and that the remaining ...


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