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State v. Brooks

Superior Court of Delaware, Kent

September 29, 2017

STATE OF DELAWARE
v.
WARREN A. BROOKS, Defendant.

         RK13-06-0128-01 PFBPP PABPP (F) RK13-06-0130-01 PDWBPP (F) RK13-06-0131-01 CCDW(F) RK13-06-0133-01 Resist Arrest (M)

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

          Stephen R. Welch, Jr., Esquire, Deputy Attorney General, Department of Justice, for the State of Delaware.

          Patrick J. Collins, Esquire and Colleen E. Durkin, Esquire, Collins and Associates, Wilmington, Delaware for Defendant.

          COMMISSIONER'S REPORT AND RECOMMENDATION

          ANDREA M. FREUD, COMMISSIONER

         The defendant, Warren A. Brooks ("Brooks") was found guilty, following a jury trial on February 6, 2014, of one count of Possession of a Firearm or Firearm Ammunition by a Person Prohibited, 11 Del. C. § 1448; one count of Possession of a Deadly Weapon by a Person Prohibited, 11 Del. C. § 1448; one count of Carrying a Concealed Deadly Weapon, 11 Del. C. § 1442; and one count of Resisting Arrest, 11 Del. C. § 1257. A presentence investigation was ordered by the Court. On April 16, 2014, Brooks was sentenced to ten years and nine months incarceration, pursuant to 11 Del. C. § 4214 habitual offender status, followed by probation.

         Brooks, through counsel, appealed his conviction to the Delaware Supreme Court. The issues on appeal were noted by the Court as follows:

Brooks raises four claims of error in this direct appeal. First, Brooks argues that the trial court denied his federal Constitutional rights to due process and to be free from double jeopardy when it denied his motion for a judgment of acquittal and sent the indictment to the jury without clarifying which alleged acts were being charged in each of the individual counts. Second, Brooks contends that the prosecutor's continued questioning and testimonial references to the police viewing an allegedly much clearer video at the police station then the DVD presented as evidence to the jury amounted to improper vouching. Third, Brooks submits that the prosecutor's improper statements at trial and during the State's closing were repetitive errors central to the State's case and cast doubt on the integrity of the judicial process. Finally, Brooks argues that, even if this Court were to conclude that each individual error, was harmless, the cumulative impact of the errors requires reversal.[1]

         The Supreme Court, on February 24, 2015, affirmed Brooks' conviction and sentence stating "We have concluded that all of Brooks' claims are without merit. Therefore, the judgment of the Superior Court must be affirmed."[2]

         On June 1, 2015, Brooks filed a. pro se motion for postconviction relief in which he raised multiple grounds for relief including ineffective assistance of counsel. After briefing on the motion was complete, the Court appointed counsel to represent Brooks in his motion. Next Appointed Counsel filed an Amended Motion for Postconviction Relief and waived all the grounds raised earlier in Brooks' pro se motion. The pending amended motion alleges ineffective assistance of Trial Counsel.

         FACTS

Following are the facts as set forth by the Delaware Supreme Court:
(3) On the early morning of May 24, 2013, Dover Police Department Patrolman First Class (PFC) John Michael Willson was on patrol on South New Street, 'a high-crime, high-drug area' in the city of Dover. FN1 Around 2 a.m., PFC Willson observed a large, very animated group of 10 to 15 people in the vicinity of the Colonial Apartments at 132 South New Street. Two or three individuals were throwing their hands up in the air, and Willson saw one person being restrained by someone. Sensing there might be a potential problem, Willson reported the situation by radio to Sergeant David Spicer, his supervisor. Since Willson was alone, Spicer told Willson to return to the Dover Police station, pick up other officers, and formulate a plan.
(4) Pursuant to Spicer's order. Willson radioed five other Dover Police Officers on his shift (Master Corporal Brian Sherwood, PFC Joseph Bauer, and Patrolmen Krough, Wood, and Schmidt), and requested that they meet at the Dover Police station. Once assembled at the station dispatch center, Sergeant Spicer and the six Dover Police officers were able to observe the group of civilians assembled on South New Street by means of a remote surveillance camera located behind Kunkel's Auto Supply.
(5) The City of Dover has multiple cameras that allow the police to monitor activity on downtown streets. The Dover downtown surveillance cameras may be moved by a police dispatcher and there is a zoom feature for closer viewing of a particular location. At the Dover Police Station, the images detected by the remote surveillance cameras maybe viewed live on two 72# High Definition screens in the-station dispatch area. In addition, the cameras have a recording system.
(6) At the Dover Police Station, one of the remote surveillance cameras was pointed directly at 132 South New Street at 2:22 a.m. on May 24, 2013. At that time it was raining. In the area of the Colonial Apartments, there was an alley between that South New Street location and South Queen Street. There was also a wrought iron gate and fence in the alley.
(7) The assembled Dover Police officers watched the activities at the 132 South New Street location on the Stations's 72# screens. Accordingly to Sergeant Spicer, it appeared that the group on South New Street was about to fight. While watching the South New Street activity on the remote surveillance camera, the Dover Police officers observed Jenkins walk to a silver Malibu automobile parked on South New Street, retrieve an object from the driver's compartment, place the object in his right rear pocket, return, and jump over a fence in the alley.
(8) While still observing the remote surveillance camera broadcast at the station, the police officers then saw Brooks walk to the same silver car, open the car trunk, remove a long object covered with clothing (jeans) or cloth, and walk to the alleyway fence that Jenkins had previously jumped. At the alleyway, Brooks set the concealed object to the side of the fence where it was retrieved by Snipes.
(9) Viewing this activity remotely at the station, the assembled police officers suspected that Jenkins and Brooks had both retrieved firearms from the silver car. Spicer thought the long object covered with clothing that Brooks removed from the car trunk was a long gun (a rifle or shotgun). Officer Sherwood also thought the concealed object Brooks obtained might be a "chopper, " or sawed-off shotgun.'
(10) Sergeant Spicer believed that "something was about to happen, " and he feared that "there was going to be a shooting." Spicer ordered Willson and Sherwood to go to New Street and the other four officers (Krogh, Schmidt, Bauer, and Wood) to go to South Queen Street.
(11)When Willson and Sherwood got to South New Street, they noticed that the unoccupied silver Malibu was running. Willson thought that because the Malibu was running it could be a get-away vehicle. Sherwood blocked in the Malibu with his police vehicle, and removed the keys from the Malibu ignition. The Malibu was later towed to the Dover Police station, and searched.
(12) Officer Krogh and Wood went to South Queen Street where individuals on the front porch of 133 South Queen Street pointed down the alleyway where the large group was still gathered. Krogh shined his flashlight down the alleyway at the group, and three of the individuals (Brooks, Jenkins, and Snipes) started running. Krogh yelled, "Stop, police, " but they continued fleeing. Wood saw Snipes throw down the jeans containing the hard object that Brooks had taken from the car trunk.
(13) Officer Wood took Snipes into custody while Officer Bauer retrieved the jeans Snipes had just discarded. Inside the wet jeans, Bauer discovered a sawed-off shotgun loaded with two 12-gauge rounds. The shotgun Snipes discarded was admitted into evidence at the joint jury trial of all three defendants (Brooks, Jenkins and Snipes) as State's Exhibit # 4, and the two shotgun shells removed from the firearm were admitted as State's Exhibit # 5.
(14) Brooks was also apprehended at the scene when he jumped the alleyway fence and began running north on South New Street directly at Officers Sherwood and Willson. Both policemen drew their weapons and yelled "Police." Brooks was taken into custody when he slipped on the wet roadway and fell. At trial Sherwood confirmed that Brooks was the same person who removed the concealed shotgun from the car trunk and who slipped and fell on South New Street when he ran toward Sherwood and Willson.
(15) Once Wilson gained control of Brooks, Sherwood joined Officer Krogh in pursuing Jenkins who ran toward Loockerman Street. Jenkins ran for a few blocks in downtown Dover, although he lost at least one of his shoes near Bradford Street during his attempted escape. Jenkins, the last fleeing suspect, ...

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