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Walsh v. State

Supreme Court of Delaware

March 11, 2019

HOWARD WALSH, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: January 25, 2019

          Court Below-Superior Court of the State of Delaware Cr. ID No. 1410004172.

          Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

          ORDER

          Leo E. Strine, Jr. Chief Justice.

         (1) The appellant, Howard Walsh, has appealed the Superior Court's denial of his first motion for postconviction relief under Superior Court Criminal Rule 61. After careful consideration of the parties' briefs and the record, we affirm the Superior Court's judgment.

         (2) The record reflects that on May 13, 2015, a Superior Court jury found Walsh guilty of three counts of Possession of a Firearm by a Person Prohibited ("PFBPP") and one count each of Possession of Firearm Ammunition by a Person Prohibited, Carrying a Concealed Dangerous Instrument, and Criminal Impersonation. The evidence presented at trial established that Walsh was convicted of Burglary in the Second Degree, a felony, in New York in 1988. On October 6, 2014, Walsh was seated in the driver's seat of a Nissan Sentra in front of a gun shop. A male customer observed a female customer buying a gun and then exiting the store, approaching the car, and giving Walsh the gun she had purchased. The male customer, who was retired from the military and had experience with guns, saw that Walsh was wearing a camouflage flak jacket and heard Walsh rack a gun.

         (3) The Delaware State Police were notified of suspicious activity. Trooper Jason Fischetti arrived on the scene and approached Walsh. Fischetti saw that, in addition to wearing the flak jacket, Walsh was wearing a badge around his neck that said "Carry Concealed Permit." Fischetti also saw a black and magenta handgun on the floor of the passenger side of the car. Walsh told Fischetti that his wife had purchased the gun for protection because they lived in a bad neighborhood.

         (4) Corporal Christopher Popp then arrived on the scene. When Popp asked Walsh to identify himself, Walsh said he was a detective and then laughed and gave his name. Popp arrested and searched Walsh and found that he had an electronic control device labeled "Police" in a pocket of the flak jacket that he was wearing. Walsh also was wearing a holster, which he explained he used to carry other guns around his home. After Walsh consented to a search of his home and provided the police with the key to a storage container that was located in his closet, the police found two black powder firearms and black powder ammunition.

         (5) Walsh testified that his wife bought the black and magenta gun for herself because she had jewelry and they lived in a bad neighborhood. He testified that he never touched the black and magenta gun. He further testified that when he had purchased the black powder guns at a gun convention shortly before his arrest, a Philadelphia police officer told him it was lawful for him to buy those items.

         (6) Walsh was sentenced under 11 Del. C. § 1448(e)(1)(c)[1] to minimum mandatory Level V time of ten years for each of the PFBPP convictions. He was sentenced to three years of suspended Level V time on the remaining convictions. This Court affirmed on direct appeal.

         (7) Walsh then filed a pro se postconviction motion. The Superior Court appointed postconviction counsel to represent him, and Walsh's appointed counsel filed an amended motion. Walsh later sought to discharge his postconviction counsel and proceed pro se. The Superior Court granted his request, ordering that all previously filed postconviction motions would be deemed moot and Walsh would be permitted to file an amended postconviction motion incorporating all the claims that he wanted the Court to consider.

         (8) In his amended motion for postconviction relief, Walsh argued that his trial counsel was ineffective for failing to (i) seek to suppress evidence obtained from the search of Walsh's home on the grounds that the police coerced his consent, which Walsh asserted would have been shown by police car dashcam video footage that counsel failed to obtain; (ii) object to certain statements made by the prosecutor during opening and closing arguments; (iii) object to the presentation of evidence of his prior burglary conviction at trial; and (iv) present a mistake of law defense. In addition to his claims of ineffective assistance of counsel, Walsh argued that (v) the State violated his due process rights by allegedly coercing his consent to search his home and failing to preserve and produce the purported dashcam video footage; (vi) his due process rights were violated because a juror allegedly overheard defense counsel speaking with Corporal Popp about the case during a recess; (vii) his due process rights were violated when the prosecutor engaged in alleged misconduct; and (viii) his postconviction counsel was ineffective by failing to pursue the arguments that Walsh made in his amended Rule 61 motion.

         (9) The Superior Court rejected each of Walsh's claims, and Walsh now appeals to this Court. We address Walsh's arguments on appeal in turn.

         (10) We review the Superior Court's denial of postconviction relief for abuse of discretion and review questions of law de novo.[2] The Court must consider the procedural requirements of Rule 61 before addressing any substantive issues.[3] Rule 61(i)(3) provides that any ground for relief that was not asserted in the proceedings leading to the judgment of conviction is thereafter barred unless the defendant can establish cause for relief from the procedural default and prejudice from a violation of the defendant's rights. To establish cause, the movant must establish that an external ...


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