Vickers ("the Defendant") has filed a Motion for
Postconviction Relief pursuant to Superior Court Criminal
Rule 61 ("Rule 61"). The Court sees no reason to
conduct an evidentiary hearing on the issues raised and this
is its decision on the merits.
October 13, 2015, the Defendant timely filed his first Motion
for Postconviction Relief The Defendant's underlying
convictions are for serious crimes of violence including home
invasion, attempted robbery in the first degree, assault in
the second degree, and three counts possession of a firearm
during the commission of a felony. In a nutshell, the
Defendant committed a home invasion and, unprovoked, shot the
victim in the leg. Because of his convictions for prior
felonies, the Defendant received a nondiscretionary life
sentence pursuant to 11 Del. C. § 4214(b). The
Defendant's conviction was affirmed by the Delaware
Supreme Court on June 11, 2015,  and the mandate returning
the case was filed on June 29, 2015.
the Defendant filed his Motion for Postconviction relief, the
Court appointed counsel who necessarily had to review the
entire record in exercising due diligence. An Amended Motion
for Postconviction Relief was filed on December 15, 2016.
Trial counsel filed a Rule 61(g) affidavit and the State and
defense have submitted responses. The final submission was
docketed May 5, 2017.
Defendant alleges trial counsel was ineffective because (i)
he failed to challenge or seek the suppression of the show-up
identification of the Defendant; (ii) he failed to move to
admit a gun shot residue test showing there was no gunshot
residue on the Defendant's hands; and (m) he
failed to investigate potential impeachment evidence against
an investigating officer.
three grounds for relief are based on allegations of
ineffective assistance of counsel. Claims premised upon
ineffective assistance of counsel must satisfy a two pronged
test. The Defendant has the burden of showing trial
counsel's representation fell below an objective standard
of reasonableness and that trial counsel's professional
errors or mistakes prejudiced the Defendant. The Defendant
must overcome the "strong presumption" that the
representation was reasonable.
Ground One: Trial Counsel Failed to Move to Suppress the
"Show Up " Identification
minutes leading up to the crime, the victim was engaged in
sexual intercourse with a female prostitute known to him as
"Neta" when the woman received a phone call Neta
took the call and then left the bedroom briefly. When she
returned, the victim locked the bedroom door and they resumed
having sex. A few minutes later, a man broke down the bedroom
door, entered the bedroom, pointed a gun at the victim, and
demanded money. The intruder had covered his face with a
black cloth - or "doo-rag" - but the victim could
still see his face in the light, and recognized him as the
Defendant. The victim also saw a second, larger man hiding
outside the bedroom but did not see the second man's
face. The victim told the Defendant he had money in his
pants' pocket. After procuring the victim's cash, the
Defendant shot the victim in the leg. The victim saw three
people running toward the Perdue plant on Savannah Drive,
where the victim knew the Defendant lived.
the shooting, the victim called 911. The victim told the
police the person who shot him was the Defendant, a man with
whom he used to work. The victim also told the police where
the Defendant lived.
ambulance used to transport the victim to the hospital was
diverted by the Defendant's house where the Defendant was
being taken into custody. The victim identified the Defendant
as being the person who broke into his house and shot him The
Defendant argues this show-up identification was
impermissibly suggestive and created a likelihood of
misidentification that also tainted the victim's in-court
law establishes that show-up identifications are
"necessary to the proper functioning of the ...