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Merritt v. State

Supreme Court of Delaware

November 5, 2018

DAVID MERRITT, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: August 8, 2018

          Court Below: Superior Court of the State of Delaware Cr. ID No. N0903001739

          Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

          ORDER

          Gary F. Traynor, Justice

         (1) This appeal is from the Superior Court's summary dismissal of the appellant's second motion for postconviction relief under Superior Court Criminal Rule 61.[1] The State has moved to affirm the Superior Court's judgment on the ground that it is manifest on the face of the appellant's opening that the appeal is without merit. We agree and affirm.

         (2) The appellant, David Merritt, was tried in 2010 on charges that he sexually abused a minor. At the close of the State's case, Merritt's trial counsel moved unsuccessfully for a judgment of acquittal. The jury convicted Merritt of eight counts of Rape First Degree and one count of Continuous Sexual Abuse of a Child. On direct appeal, Merritt's appellate counsel argued that he was denied the right to proceed pro se at trial. We concluded that the claim was without merit and affirmed Merritt's convictions.[2]

         (3) Merritt's first motion for postconviction relief as amended and his related motions for the appointment of counsel and for an evidentiary hearing were referred to a Superior Court Commissioner. After considering counsel's affidavit responding to the allegations of ineffective counsel, the State's response to the motion, and Merritt's reply, the Commissioner issued a report recommending that the postconviction motion and other motions should be denied.[3] The Commissioner determined, in relevant part, that Merritt's stand-alone claims of prosecutorial misconduct and insufficient evidence were procedurally barred under Rule 61 because the issues were raised and ruled on at trial and were not pursued on direct appeal. The Commissioner determined that the ineffective counsel claims were without merit because Merritt did not establish any deficiencies in his counsel's representation or any prejudice from the alleged deficiencies. After considering Merritt's objections to the report and recommendation and conducting a de novo review of the record, the Superior Court adopted the report and recommendation and denied Merritt's first motion for postconviction relief.

         (4) On appeal from the denial of his first motion for postconviction relief, Merritt argued that his trial counsel failed to effectively challenge the sufficiency of the State's proffered evidence of penetration, an essential element of first degree rape. We disagreed and affirmed the Superior Court's judgment.[4]

         (5) Merritt's second motion for postconviction relief raised the same claims as his first postconviction motion. Merritt also filed numerous motions in conjunction with the motion, including a motion to withdraw the postconviction motion and to replace it with another version of the motion. The motion to withdraw and replace was granted by the Superior Court.

         (6) Merritt's replacement postconviction motion raised two claims of ineffective assistance of counsel. Merritt claimed that he would have been granted a directed verdict or a judgment of acquittal based on insufficient evidence of penetration had his trial counsel timely objected to the prosecutor's use of an "anatomically incorrect" hand gesture simulating a penis penetrating a vagina. Second, Merritt claimed that his trial counsel's failure to interview an eyewitness- namely, the complaining witness' younger sister-deprived him of an actual innocence defense. According to Merritt, had the jury heard the trial testimony of the complainant's younger sister, he would have been found not guilty because the younger sister would have testified that she was not aware of any abuse. Merritt contends that evidence of the younger sister's lack of awareness of the alleged sexual abuse was crucial to his defense because it contradicted the complaining witness' testimony that her younger sister was in the room when some of the sexual abuse occurred.

         (7) By order dated January 29, 2018, the Superior Court summarily dismissed Merritt's second postconviction motion under Rule 61(d)(2).[5] On appeal from that decision, Merritt argues that the Superior Court erred when summarily dismissing the motion. His argument is without merit.

         (8) Rule 61(d)(2) provides:

A second or subsequent motion under this rule shall be summarily dismissed, unless the movant was convicted after a trial and the motion either:
(i) pleads with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the ...

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