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State v. White

Superior Court of Delaware

November 21, 2018

STATE OF DELAWARE
v.
ANTHONY WHITE, Defendant.

          Submitted: September 19, 2018

          ORDER

          Ian R. Jurden, President Judge

         AND NOW TO WIT, this 21st day of November, 2018, upon consideration of the Defendant's Third Motion for Postconviction Relief, the State's Response, the Commissioner's Report and Recommendation, Defendant's objections, and de novo review of the record in this case, IT APPEARS THAT:

         1. In 2007, a jury found Anthony White guilty of Attempted Murder First Degree and Possession of a Firearm During the Commission of a Felony.[1] The Delaware Supreme Court affirmed White's conviction on September 5, 2008.[2]

         2. On January 14, 2009, White filed his first Motion for Postconviction Relief ("First Motion") under Superior Court Criminal Rule 61 ("Rule 61"). White alleged claims of ineffective assistance of counsel, prosecutorial misconduct and trial judge errors. The Superior Court denied the First Motion. On May 4, 2010, the Supreme Court affirmed the Superior Court's judgment, [3] noting that, in addition to the eyewitness testimony of Tucker, Maddrey and Phoenix, the State presented to the jury the following evidence: (1) a surveillance camera videotape, (2) gun casings, (3) testimony from the chief investigating officer, Detective Curley, and (4) the police evidence technician's testimony.[4] The record reflects that Tucker, Maddrey and Phoenix's trial testimony contradicted their prior statements to Detective Curley about the shooting of Tucker. Tucker told Curley he did not know who shot him (Tucker). Maddrey told Curley that he (Maddrey) shot Tucker. Phoenix told Curley that White shot Tucker. At trial, Tucker and Maddrey both testified that White shot Tucker and Phoenix testified that he did not witness the shooting and did not know anything about the shooting. The Supreme Court noted that "not surprisingly, White's defense strategy focused on attacking the credibility of Tucker, Maddrey, and Phoenix..."[5] and trial record shows that defense counsel thoroughly examined their contradictions, biases, motives and potential misrepresentations to the police or at trial.[6]

         4. On August 16, 2010, White filed his second Motion for Postconviction Relief ("Second Motion") under Rule 61. In his Second Motion, White challenged certain communications between the trial judge and the jury, and the introduction of contradictory statements of a trial witness. The Superior Court denied the Second Motion and the Supreme Court affirmed.[7]

         5. Now before the Court is White's third Motion for Postconviction Relief ("Third Motion"), [8] filed on November 6, 2017. Four months later, White filed a Supplemental Report and Reasons for Relief.[9] Together, White's Third Motion asserts the following claims: (1) the Superior Court lacked jurisdiction to convict him of Attempted First Degree Murder and he cannot be convicted of a "non-crime;" (2) newly discovered evidence shows White's innocence of the crimes for which he is convicted; and (3) Strickland!Brady claims for ineffective assistance of counsel and Brady violations.[10]

         6. Upon the Court's request, White expanded on his claim of new exculpatory evidence by submitting the following[11]:

         (1) an unsigned/unsworn statement summarizing a purported interview of Qy-Mere Maddrey ("Maddrey Summary") conducted by an investigator on April 13, 2017. The Investigative Insert states that Maddrey is the uncle of White's child, Maddrey admits to shooting Tucker, and Maddrey changed his testimony at trial because of pressure from law enforcement;

         (2) an unsigned/unsworn summary which purports to be a statement of Jeree "Re-Re" Richardson to Curley ("Richardson Statement"), which purports that Richardson witnessed Tucker rob Maddrey;

         (3) James Anthony Brown's Affidavit of Updated Statement ("Brown Affidavit") dated March 15, 2018. Brown testifies that he dropped Maddrey off at the police station when Maddrey turned himself in and confessed;

         (4) Zekita Ann Maddrey's Affidavit of Updated Statement ("Zekita Affidavit") dated March 15, 2018. Zekita testifies that she is Maddrey's older sister and the mother to White's child. She claims that Maddrey confessed to the crime.

         7. White further argues that with respect to State witnesses Maddrey, Tucker and Phoenix: (1) trial counsel did not attack the credibility of the witnesses; (2) all three witnesses are pathological liars; and (3) Maddrey confessed and later recanted, but White was denied his right to challenge Maddrey's change of testimony at trial.[12]

         8. The State filed a Response to White's Third Motion arguing that it should be denied as untimely, and/or subject to certain procedural bars, and/or denied on the merits.[13]

         9. Pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62, the Third Motion was referred to a Superior Court Commissioner for proposed findings of fact and recommendations ("the Report").[14] On September 13, 2018, the Commissioner issued the Report recommending summary dismissal of White's Third Motion.[15]

         10. On September 19, 2018, White submitted an Exception to Commissioner's Report[16] and two amendments.[17] Because the initial Exception was filed within 10 days of the Report, the Court must conduct a de novo review of "those portions of the report" objected to.[18] The judge "may accept, reject, or modify, in whole or in part, the findings of fact or recommendations made by the Commissioner."[19]

         11. The Court need not consider the merits of White's Third Motion because it does not overcome the Rule 61 procedural bars.[20]

         12. Rule 6l(i)(1) provides that a motion for postconviction relief must be filed within one year of a final judgment of conviction.[21] A judgment of conviction becomes final, in relevant part, when "the defendant files a direct appeal" to the Delaware Supreme Court and the Court "issues a mandate or order finally determining the case on direct review."[22] White's judgment was final in 2008.[23] The Third Motion was filed nine years after White's final judgment.

         13. Rule 6l(i)(2) bars successive motions unless the motion satisfies the pleading standards of Rule 6l(d)(2)(i)-(ii).[24] To overcome this procedural bar, White is required to plead with particularity either:

(i) new evidence exists that creates a strong inference that the movant is actually innocent of the acts for which he was convicted; or
(ii) a new rule of constitutional law retroactively applies to the case on collateral review by either the United States or Delaware Supreme Court and the new law invalidates the movant's conviction.[25]

         14. White argues that Rambo v. State, [26] creates constitutional law establishing that Attempted Murder First Degree is a "non-crime." White does not meet the pleading standard of Rule 6l(d)(2)(ii) because Rambo does not apply to this case and it does not invalidate White's conviction. In Rambo, the Court held that Attempted Felony Murder is not a recognized crime in Delaware. A person cannot attempt a Felony Murder because attempt requires intent and a person cannot attempt to commit a crime that can only be recklessly committed.[27] In Rambo, the defendant was convicted of Attempted Felony Murder under 11 Del. C. § 636(a)(2) for the reckless murder of a victim during a robbery. In contrast, White was convicted of Attempted Murder First Degree under 11 Del. C. § 636(a)(1).[28] At trial, the State's evidence demonstrated that White "attempted to 'intentionally cause[] the death of another person,' - Jaywann Tucker, by repeatedly shooting him with a firearm."[29]

         15. White's case is similar to Sykes v. State[30] not Rambo. In Sykes, the Court rejected the defendant's argument, which was based on Rambo, that his plea to Attempted Murder First Degree was invalid and the Superior Court lacked jurisdiction to accept his plea. The Court held that the Rambo decision was inapplicable in Syke's case because defendant pled guilty to Attempted intentional Murder in the First Degree - an offense within the jurisdiction of the Superior Court. White, like the defendant in Sykes, was convicted of Attempted intentional ...


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