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State v. Roth

Superior Court of Delaware

January 25, 2017

RICHARD ROTH, JR. Defendant.

          Submitted: October 21, 2016

         Upon Defendant's Motion for Postconviction Relief, DENIED.

         Upon Conflict Counsel's Motion for Appointment of Counsel, DENIED.

          Scan P. Lugg, State Prosecutor, Department of Justice, Attorney for the State

          Richard Roth, Jr., SBI No. 00275478, Sussex Correctional Institute, pro se


          M. Jane Brady, Superior Court Judge

         I. Introduction

         Before the Court is a Motion for Postconviction Relief and Motion for Appointment of Counsel filed pursuant to Superior Court Criminal Rule 61 ("Rule 61") by Richard Roth, Jr., ("Defendant") on October 21, 2016. The Defendant raises five challenges to the evidence which was used against him: (1) the State produced two forensic witnesses at trial who did not conduct the DNA analysis themselves, (2) the prosecutor committed misconduct by using false identification testimony, (3) the State was allowed to introduce three out-of-court statements from witnesses without laying a proper foundation, (4) there was a violation of a sequestration order, and (5) police provided false testimony at trial.

         II. Facts[1] & Procedural Background

         Roth, Jr. and three codefendants were charged in connection with a series of robberies occurring in the Newport and Stanton area in December 1998. The codefendants were Richard Roth, Sr., James Anderson and Moises Ordorica. The first robbery occurred on December 22, 1998 at the Newport Family Restaurant. The owner of the restaurant, Maria Perdikis, was robbed as she closed the business and walked to her car with the night deposit bag. An armed robber, wearing a mask and gloves, grabbed her from behind and threatened to kill her if she did not give him the deposit bag. The robber discharged pepper spray into Perdikis' face, and she fell to the ground. The robber then discharged pepper spray into Perdikis' face again. She heard a second man say, "What are you doing?" The robbers fled with the night deposit bag containing approximately $3, 000. Perdikis told the investigating police officer that she had seen three men in the bushes that night but did not remember making that statement at trial.

         The second robbery occurred on December 26, 1998 at Bob's Adult Bookstore on Route 13. At about 10:00 p.m., the manager of the bookstore, Mitchell Watson, stepped outside to investigate the possibility of a break in the cable line since the television had gone blank and the credit card machine stopped functioning. When Watson opened the door, a man entered the store and said, "Hi Mitch." When Watson turned around, the man was wearing a mask and pointed a gun at Watson's face. The gunman ordered Watson to step away from the door. A second masked robber entered holding a shotgun. The two gunmen in the store communicated with a third person outside by using a walkie-talkie. The robbers fled with approximately $3, 000 and several coffee cans that each contained approximately $100 in quarters or tokens. Mitchell provided a description of the two gunmen to the police. The description given by Mitchell, and the descriptions given by other witnesses to the crimes, were consistent with Roth, Jr. and James Anderson.

         The most serious offense occurred during the third armed robbery on New Year's Eve 1998 at the J & R Grocery Store on East Newport Pike. The owner of the store, Jaime Antunez, was working inside the shop with his sister, Marisela Rodriguez. Two gunmen wearing ski masks entered the store. One was armed with a .38 caliber revolver. The other was armed with a sawed-off shotgun and a semiautomatic handgun.

         As Antunez struggled with one of the robbers, that gunman's weapon discharged twice. One shot struck that gunman in the hand and the other shot grazed his head. The second robber returned from a back room and fired several shots at Antunez with the semiautomatic handgun. The robbers took money from the cash register, exited the grocery store and entered a getaway car driven by a third person. Antunez survived for fifty-five days before dying from an infection and pneumonia caused by the gunshot wounds that were inflicted during the armed robbery.

         A customer arrived at the J & R Grocery Store during the course of the robbery. He could see the masked gunmen inside and did not enter. He provided a description of the gunmen to police. The police found a sawed-off shotgun at ...

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