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State v. Harmon

Superior Court of Delaware, Kent

October 12, 2018

STATE OF DELAWARE
v.
DA MIER HARMON, Defendant.

         RK15-07-0546-01 Murder 2nd (F) RK1 5-07-0548-01 PFDCF (F)

         Upon Defendant's 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.

          Damier Harmon, Pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION

          ANDREA M FREUD COMMISSIONER

         The defendant, Da Mier Harmon ("Harmon"), pled guilty the day his trial was set to begin November 29, 2016 to one count of Murder in the Second Degree, as a lesser included offense of Murder in the First Degree, 11 Del. C. § 635, and one count of Possession of a Firearm During the Commission of Felony 11 Del. C. § 1447 A. In exchange for his plea the State entered nolle prosequis on the remaining counts including one count of Robbery in the First Degree, one count of Possession of Firearm by a Person Prohibited, and one additional count of Possession of a Firearm During the Commission of a Felony. As part of the Plea Agreement the State recommended a maximum sentence of thirty years incarceration. Due to the nature of the charges Harmon faced mandatory life in prison had he been convicted of the lead charge of First Degree Murder. A presentence office investigation was ordered and the defense presented detailed mitigating evidence. At the sentencing on February 28, 2017 Harmon again admitted his complicity and asked for forgiveness from the victims family. The Court agreed with the State's recommendation and sentenced Harmon to a total of fifty years incarceration suspended after thirty years for probation, eighteen of which were minimum mandatory. Harmon did not appeal his conviction or sentence to the Delaware Supreme Court. He filed, pro se, the pending motion for postconviction pursuant to Superior Court Criminal Rule 61 on August 7, 2017 alleging ineffective assistance of counsel. He also requested the appointment of counsel. This court denied that request pursuant to Superior Court Criminal Rule 61(e)(2). Next Harmon filed a writ of Mandamus with the Delaware Supreme Court concerning this Court's denial of his request for appointment of counsel. The Supreme Court denied the writ on February 13, 2018[1] and the matter was set for briefing on the pending postconviction motion.

         FACTS

         According to the Probable Cause Affidavit[2] and the transcript from the Preliminary Hearing, [3] at approximately 8:54 p.m. on May 13, 2015 Dover Police were dispatched to Harmony Lane north of Walker Road in Dover in reference to a shooting. Upon arriving at the scene Detective Wood of Dover Police Department located the victim Gary Adams ("Adams") on the ground with a gunshot wound to his left upper chest. Adams was taken to Kent General Hospital were he was declared dead. A subsequent autopsy determined that Adams died as a result of a gunshot wound and the death was found to be a homicide.

         Detective Wood spoke with witness # 1 who told the officer that he and Adams had agreed to meet two individuals via text message in order to sell them some marijuana. Witness # 1 stated that Adams' cell phone's battery had run out so Adams used witness # l's cell phone to text the individual they thought intended to purchase the marijuana. Witness # 1 allowed the police to view his cell phone and see the text messages and the phone number of the individual who was arranging the meeting. Witness # 1 stated that when he and Adams arrived on Harmony Lane they were directed where to park their car and two suspects one tall thin black male, later identified as Bruce Manlove ("Manlove"), Harmon's co-defendant, and one a shorter heavyset black male, later identified as Harmon, approached the vehicle and Adams handed a bag of marijuana to Manlove who put it in his pocket according to witness # 1. At this point witness # 1 stated that Harmon produced a handgun and ordered Adams to turn over his property. Adams got out of the vehicle and a scuffle ensued. Witness # 1 observed the scuffle and heard a single gunshot then saw Adams collapse on the ground at which point the two suspects fled the scene in a southbound direction. A single 9 mm casing was found at the scene.

         Detective Wood also interviewed a second witness. Witness # 2 stated he lived in the neighborhood and was outside when he saw two persons he identified as "BJ" and "Hamburger." BJ being a tall skinny black male and Hamburger being a short heavyset black male. Witness # 2 stated he saw the car, later identified as the one witness # 1 and Adams were in, pull into the neighborhood. Witness # 2 stated he saw BJ and Hamburger walk up to the car. Witness # 2 was speaking with an acquaintance when he looked up a second time and saw the passenger from the car struggling with B J and Hamburger. Witness # 2 then heard a gunshot and saw Adams collapse. As they ran away witness # 2 saw Hamburger trying to tuck something into his sweatshirt. Witness # 2 told the police that Hamburger lives at the entrance to the neighborhood and was on home confinement. The investigation revealed that Harmon lives where witness # 2 said "Hamburger" lives and that Harmon was on Level 4 monitoring and was in the vicinity at the time of the murder. The investigation also revealed that shortly after the murder Harmon had cut off his ankle bracelet and fled the area. Witness # 2 positively identified Manlove as "BJ," the tall skinny black male. He also identified Harmon as "Hamburger," the shorter heavy set black male. Manlove and Harmon were apprehended at a hotel in Philadelphia a short time after the crime and extradited to Delaware. Manlove confessed to his involvement in the crime and implicated Harmon as the shooter. As part of his plea agreement Manlove agreed to testify at Harmon's trial.

         HARMON'S CONTENTIONS

         In his motion Harmon raises the following grounds for relief:

Ground one: Ineffective Counsel. Did Counsel fail to investigate into facts relevant to preparing defense for trial, or arguement (sic) for less time, resulting in prejudice and failure to aid client?
Ground two: Ineffective Counsel and Due Process. Was plea accepted knowingly and intellegently (sic), and, did counsel use coercive tactic ...

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