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State v. Puryear

Superior Court of Delaware, Kent

September 20, 2017

STATE OF DELAWARE
v.
ROBERT PURYEAR

         RK15-02-0038-01 Rape 4th (F) RKl5-02-0039-01 Cont Sex Abuse (F)

         Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61

          Robert Puryear, Pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION

          Andrea M Freud, Commissioner

         The defendant, Robert Puryear ("Puryear"), pled guilty the day his trial was scheduled to begin on October 5, 2015 to one count of Continuous Sexual Abuse of a Child, 11 Del. C. § 776, and one count of Rape Fourth Degree, 11 Del. C. § 770. He was also facing one count of Rape in the Second Degree without Consent, five counts of Unlawful Sexual Contact Victim under 13 years old, and Unlawful Sexual Contact in the Second Degree. In exchange for the plea, nolle prosequis were entered by the State on the additional charges. A presentence investigation report was ordered. On December 16, 2015 Puryear was sentenced to a total of forty years incarceration suspended after serving four years and six months at Level V, two of which were minimum mandatory for varying levels of probation. Puryear did not appeal his conviction or sentence to the Delaware Supreme Court. Instead on April 27, 2016 he filed a nonconforming motion for postconviction relief pursuant to Superior Court Criminal Rule 61. The motion was rejected. Subsequently Puryear filed a conforming Rule 61 motion for postconviction relief on November 21, 2016.

         FACTS

         On October 4, 2014, the Delaware State Police began an investigation into alleged sexual molestation by Puryear. The report of the investigation is attached to the State's response (Exhibit A). The report recounts that the initial investigating officer was told by the victim that Puryear, who had recently moved into her home, had physically and sexually abused her. Three days later, on October 7, 2014, Detective Surowiec of Delaware State Police's Major Crimes Division began his investigation. At this point, the victim's mother had been notified of the allegations against Puryear and had agreed to remove him from her home. When Det. Surowiec spoke with the victim's mother on October 8, the mother reported that the victim "told her counselor that she fabricated the sexual assault allegations." Two days later the victim was interviewed at the Children's Advocacy Center by forensic interviewer Cynthia Vollmer. During this interview, the victim disclosed that the sexual abuse by Puryear began when she was 10 or 11 years old and living in Whispering Pines, a manufactured homes community in Dover, Delaware. The detective confirmed that the victim, her mother and Puryear lived in this community at the same time. The victim recounted that other instances of sexual assault occurred while she lived at that location. Furthermore, the victim reported that Puryear assaulted her at her new address on South Governor's Avenue in Dover starting when she was 13 years old. She described the defendant digitally penetrating her vagina and engaging in penile-vaginal sexual intercourse. The victim also described Puryear groping her whenever he felt like it. The victim could not state when the abuse ended but told the interviewer that she had not seen Puryear for a year until he returned in October 2014.

         Det. Surowiec interviewed Puryear on October 15, 2014. Puryear denied any illegal behavior but consented to a polygraph examination. After the polygraph examination on October 29, 2014, Det. Surowiec again interviewed Puryear. During this interview, Puryear stated: "I did touch Nicole." He admitted that the abuse started at the victim's previous home in 2007 when she was 8 years-old. He also admitted to touching the victim's vagina at her new residence. Eventually, Puryear admitted that he put his penis into the victim's vagina.[1]

         Puryear was arrested after his interview. He was indicted on February 2, 2015 and charged as noted above. The State provided initial discovery to defense counsel on January 26, 2015, including police reports and recordings of Puryear's statements to the police (Exhibit A). On March 12, 2015, the State provided the defense with redacted copies of the victim's Department of Family Services file (Exhibit B).[2] On October 2, 2015 the defense was provided the transcripts of the victim's and Puryear's statements (Exhibit C).[3]

         PURYEAR'S CONTENTIONS

         In his motion, Puryear raises the following grounds for relief:

Ground one: Puryear claims that "newly discovered" evidence concerning the victim's alleged "recantation" found in the police report and his counsel's failure to notice this is grounds for relief.
Ground two: Puryear argues the Court "sabotaged" his initial Rule 61 filing by not accepting his ...

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