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State v. Vickers

Superior Court of Delaware, Sussex

May 18, 2017

State
v.
Donta Vickers

         Dear Counsel;

         Donta 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.

         Procedural Background

         On 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, [1] and the mandate returning the case was filed on June 29, 2015.

         After 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.

         Discussion

         The 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.

         All 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.[2] The Defendant must overcome the "strong presumption" that the representation was reasonable.[3]

         Merits

         1. Ground One: Trial Counsel Failed to Move to Suppress the "Show Up " Identification

         In the 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.

         Following 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.

         The 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 identification.

         Case law establishes that show-up identifications are "necessary to the proper functioning of the ...


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