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State v. Flowers

Superior Court of Delaware

November 30, 2017


          Submitted: November 6, 2017

          Andrew Vella, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          Damone Flowers, Sussex Correctional Institution, pro se.



         This 30th day of November, 2017, upon consideration of Defendant's Motion for Postconviction Relief, Motion for Appointment of Counsel and the record in this matter, the following is my Report and Recommendation.


         Damone Flowers ("Defendant") has had a lengthy history with the state and federal courts. Although he prevailed upon the Superior Court to grant him relief from his conviction, that win was short lived and soon thereafter vacated. Defendant's history dates back to October of 2002 when he was convicted of Murder in the First Degree and Possession of a Firearm during the Commission of a Felony.[1]Defendant was sentenced to life in prison, plus ten years.[2] The conviction was subsequently affirmed on appeal.[3] After a series of deficient filings, [4] Defendant's first Motion for Post-Conviction Relief was denied on June 27, 2005 (the "First Motion").[5] Defendant almost immediately thereafter filed a second Motion for Postconviction Relief that was also denied (the "Second Motion").[6] Defendant then pursued an appeal that was dismissed as untimely.[7] Moving to the federal arena, Defendant also sought relief by way of a Petition for Writ of Habeas Corpus (the "First Writ") that was denied on September 22, 2008.[8]

         On May 12, 2010, Defendant filed a Motion to Compel Production of Brady Material with this Court.[9] As the motion did not relate to any pending matter, it was denied.[10] Defendant then filed his third Motion for Post-Conviction Relief on May 14, 2012 (the "Third Motion").[11] Defendant retained counsel to assist him and the Court considered five claims of ineffective assistance of trial counsel. To allow Defendant a full and fair opportunity to raise any possible claims, the Court issued a letter order that provided for the filing of an amended motion but noted that "[a]ny amended motion must be all-inclusive. In other words, it must state all grounds for relief upon which movant relies."[12]

         The amended and superseding Third Motion was filed on April 25, 2013, [13]the record was enlarged and briefing was submitted. While the Third Motion was pending, Defendant's counsel filed a Motion to Compel and the Court ordered the production of certain tape-recorded statements of two witnesses.[14] The Superior Court Commissioner tasked with reviewing the Third Motion eventually issued a Report and Recommendation (the "Report") that Defendant's Third Motion should be granted in part and denied in part.[15] Objections and additional briefing followed and the Superior Court Judge, specially assigned to the matter, issued a decision adopting in part and denying in part the Report (the "Judgment").[16] Upon appeal to the Delaware Supreme Court, the Judgment was reversed[17] with the Mandate issuing on November 14, 2016.[18] On remand, the Superior Court vacated the Judgment, denied Defendant's Third Motion, reinstated Defendant's conviction and issued a new sentencing order.[19] Undeterred, Defendant challenged the ruling by way of a second Petition for Writ of Habeas Corpus. According to Defendant's papers, that petition is still pending.

         Defendant has now filed his Fourth Motion for Postconviction Relief (the "Fourth Motion") along with a Motion for Appointment of Counsel.[20] Defendant's Fourth Motion raises four claims that the State committed a Brady[21] violation and a fifth claim that due to the cumulative nature of the violations, he is entitled to relief.

         Defendant's arguments can be summarized as follows:

(1)The State committed a Brady violation by withholding exculpatory taped statements (the Mayo, Bazemore, Duncan, Bartley and Swanson tapes) that are now lost. This was uncovered by post-conviction counsel through his investigation in preparation for the Third Motion. Defendant refers to these claims as having been previously raised as "Ground Nine in First 61 Motion", "Ground Eleven", and "Ground One & Three in First 61 Motion".[22]
(2) The State committed a Brady violation by failing to alert trial counsel of certain statements (the Bartley statement). Again, post-conviction counsel uncovered this through the retention of an investigator.
(3) The State committed a Brady violation when it misled the Court and trial counsel regarding the statements of a witness (the Mayo statements). Once more, this was addressed by post-conviction counsel and part of the Commissioner's ruling on the Third Motion.
(4) The State committed a Brady violation (or prosecutorial misconduct) by not disclosing a deal it reached with one of the witnesses (the Swanson deal). Defendant recognizes that one of his previous motions put the State on notice of this claim.
(5) Defendant's "cumulative result" argument rests on the preceding claims and in support Defendant states "[i]n one form or fashion the movant has attempted to bring Brady violation allegations before the State court." Defendant further admits that he was not able to retrieve the exculpatory Brady tapes until the proceedings for the Third Motion.

         For the reasons that follow, I recommend that Defendant's Fourth Motion should be summarily dismissed.


         Before considering the merits of the claims, the Court must first determine whether there are any procedural bars to the motion.[23] If a defendant files a direct appeal, then the judgment of conviction is final when the Supreme Court issues a mandate or order finally determining the case on direct review.[24] In this case, despite the Supreme Court's Mandate and new sentencing in 2016, Defendant's Fourth Motion is untimely for having been filed more than ...

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