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State v. Restrepo-Duque

Superior Court of Delaware, Kent

April 16, 2019

STATE OF DELAWARE
v.
JUAN C. RESTREPO-DUQUE, Defendant.

         RK10-03-0781-01, Murder 2nd LIO Murder 1st (F), RK10-03-0782-01 PDWDCF (F) RK10-03-0783-01 Theft MV (F) RK10-06-0458-01 CCDI

         Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61

          Jason C. Cohee, Esquire, Deputy Attorney General, Department of Justice, for the State of Delaware.

          Juan C. Restrepo-Duque, Pro se.

          William T. Deely, Esquire

          Alexander W. Funk, Esquire

          James M. Stiller, Jr., Esquire

          Jayce R. Lesniewski, Esquire

          Thomas D. Donovan, Esquire

          Patrick C. Collins, Esquire

          COMMISSIONER'S REPORT AND RECOMMENDATION

          Andrea M. Freud Commissioner

         The defendant, Juan C. Restrepo-Duque ("Restrepo-Duque") was found guilty, following a jury trial on November 26, 2014 of one count of Murder in the Second Degree, as a lesser-included offense of Murder in the First Degree, 11 Del. C. § 635; one count of Possession of a Deadly Weapon During the Commission of a Felony, 11 Del C. § 1447; one count of Theft of a Motor Vehicle, 11 Del. C. § 841 A; and one count of Carrying a Concealed Dangerous Instrument, 11 Del. C. §1443. A presentence investigation was ordered by the Court. On December 9, 2014 through counsel, Restrepo-Duque filed a Motion for Judgment of Acquittal and Motion for a New Trial with a request for a Franks hearing. On January 15, 2015 the Superior Court denied Restrepo-Duque's motions and sentenced him to a total of sixty-eight years incarceration suspended after serving thirty years, fifteen of which were minimum mandatory followed by varying levels of probation.

         A timely appeal was filed by Restrepo-Duque's counsel. The issues on appeal were noted by the Delaware Supreme Court as follows:

Restrepo appeals and argues that the Superior Court erred by (1) finding the nighttime search warrant of his residence and his subsequent arrest valid; (2) admitting into evidence Restrepo's statement made to police; and (3) admitting into evidence information found on Wolf s laptop computer and a social media profile and posts linking him to Wolf.[1]

         The Supreme Court, on December 17, 2015, affirmed Restrepo-Duque's conviction and sentence. The Supreme Court denied Restrepo-Duque's motion for reargument en banc on January 5, 2016 and the mandate issued.

         On January 6, 2017, ten days prior to the expiration of the time allowed under Superior Court Criminal Rule 61 to file a Motion for Postconviction Relief, Restrepo-Duque, through counsel, Leo John Ramuno, Esquire, filed a "First Motion for Postconviction Relief. This "First Motion for Postconviction Relief raised three grounds for relief but did not include any memoranda in support of the motion. The motion also included the following language "The defendant reserves the right to amend this argument to include specific reference to the numerous Err (sic) made by his attorney and to file a memorandum with specific references to the record and case law." By order dated January 24, 2017, the Court gave Restrepo-Duque until April 28, 2017 to file an amended motion to include ALL grounds for relief or to notify the Court that he does not wish to file an amended motion.

         On January 31, 2017, the Court was notified by Donna L. Culver, Esquire that Restrepo-Duque's postconviction counsel Mr. Ramunno had been disbarred by the State Supreme Court pursuant to an order dated January 26, 2017, and that she had been appointed as Receiver of Mr. Ramunno's practice. Ms. Culver - requested that Restrepo-Duque's Postconviction Motion therefore be put on hold until Restrepo-Duque could secure new counsel.

         On March 17, 2017, Ms. Culver informed the Court by letter that she had discussed the pending motion with Restrepo-Duque and that he was requesting that the Court appoint counsel to represent him in his motion for postconviction relief. On March 21, 2017, the Court granted the request and forwarded the matter to the Office of Conflicts Counsel to appoint counsel to represent Restrepo-Duque. Patrick J. Collins, Esquire was subsequently appointed to represent Restrepo-Duque. Mr. Collins notified the Court on May 8, 2017 that he was awaiting receipt of the file from the Office of Conflicts Counsel and requested permission to notify the Court when he had the file so the Court could then issue a briefing schedule. The Court granted the request.

         On March 1, 2018 the Court issued a briefing order giving Mr. Collins, on behalf of Restrepo-Duque, until May 1, 2018 to file either an amended motion for postconviction relief or a statement that the motion will proceed as initially filed or to file or notice of intent to withdraw as counsel pursuant to Superior Court Criminal Rule 61(e)(7). Mr. Collins subsequently on April 16, 2018, requested an extension of time to file. The Court granted the request and issued a new briefing order. On June 27, 2018, Mr. Collins filed an Amended Motion for Postconviction Relief on behalf of Restrepo-Duque raising one ground for relief.

         On July 6, 2018 Restrepo-Duque pro se filed a Motion to Discharge his Postconviction Counsel and to proceed pro se. The Court then scheduled a hearing to assure that Restrepo-Duque was knowingly, voluntarily and intelligently asking to proceed pro se.

         A hearing was held by the Court on August 1, 2018 at which, Mr. Collins, Deputy Attorney General Jason C. Cohee, on behalf of the State and Restrepo-Duque were all present. Following a colloquy the Court determined that Restrepo-Duque knowingly, intelligently and voluntarily was seeking to proceed pro se without the benefit of counsel.

         On August 23, 2018, the Court received the pending "Pro-se Amended Motion for Postconviction Relief signed on August 5, 2018, [2] and received and docketed on August 23, 2018. The Court then issued yet another briefing order.[3] The matter has completed briefing and is ready for decision.

         FACTS

         Following are the facts as set forth by the Delaware Supreme Court:

(1) On February 14, 2010, Kenton Wesley Wolf was shot with a BB gun and stabbed to death in his Smyrna residence. The police arrested Juan Restrepo Duque ("Restrepo"), an eighteen-year-old Colombian national who had been living in the U.S. for seven years, and charged him with Wolfs murder. A Superior Court jury found Restrepo guilty of second degree murder, possession of a deadly weapon during the commission of a felony, motor vehicle theft, and carrying a concealed dangerous instrument. The Superior Court judge sentenced Restrepo to a lengthy jail term, followed by decreasing levels of supervision.[4]
(4) Restrepo, using the profile "purecolombianblood," met Wolf on the internet. On January 29, 2010 Wolf picked up Restrepo at a Newark grocery store, and together they drove to Wolfs home in Smyrna, Delaware. There they drank beer and watched television. On February 14, 2010, Wolf sent Restrepo an email asking to meet again in person. Wolf picked up Restrepo from the Newark library around 3:00 p. m., and the two bought beer before driving to Wolf s house. According to Restrepo, they went upstairs to Wolfs bedroom to watch television and drink beer. Eventually, as Wolf attempted to touch Restrepo sexually, Restrepo claimed that he noticed a nine-inch knife on the nightstand. Restrepo testified that Wolf reached for the knife when he rebuffed Wolfs advances, but Restrepo grabbed the knife first. Restrepo sliced Wolf across the throat. Wolf then chased Restrepo out of the room, yelling at him to get out.
(5) Fearful that Wolf would call the police, Restrepo testified that he returned to the upstairs bedroom and found the door locked. He kicked the door open, shot Wolf with a BB gun and stabbed him repeatedly. Once he was sure Wolf was dead, Restrepo pulled the bedding, the mattress and the dresser on top of Wolf. He opened the windows and turned off the heat, despite it being a cold February day. Restrepo then retrieved the beer from the kitchen and packed a box with some of Wolf s belongings, including CD's, cellphones, a beeper, Wolfs laptop and three sets of keys. Restrepo then left in Wolfs distinctive green 1994 Volkswagen Jetta. He stopped at a Kmart to buy new clothing and to dispose of his bloody clothes and shoes.
(6) On February 15, 2010, Restrepo drove Wolfs car to the Newark Farmers Market. He used Wolfs credit card to purchase two tasers and three knives. He then threw the knife that he used to stab Wolf and the BB gun in a creek near his home. He left Wolfs laptop buried in the snow in Deacons Walk Park. Finally, he abandoned Wolfs Jetta in Brook Haven Park.
(7) On February 19, 2010, after Wolf failed to show up to work, two of his coworkers went to his home to check on him. They noticed the windows were open and saw his wallet and other personal belongings scattered on the front lawn. They called the police, who discovered Wolfs body upstairs.
(8) The police sent a desktop computer recovered from Wolf s home to the State Police High Tech Crimes Unit for analysis. Later that same day, a tree surgeon in Deacons Walk Park discovered Wolfs laptop under the snow. The police analyzed both of Wolf s computers and discovered that Wolf had communicated with someone using the screen name "purecolombianblood" on January 29 and February 14. An internet search of "purecolombianblood" led to pictures and online profiles that linked the screen name to Restrepo. The police also learned that Wolfs credit card had been used at the Newark Farmers Market on February 15. A February 15 surveillance video of the Farmers Market parking lot showed Wolfs distinctive green Jetta pulling in and leaving, though the driver and the license plate number could not be identified.
(9) The police secured a nighttime search warrant and went to Restrepo's house around midnight on February 22, 2010. The search warrant affidavit alleged that there was probable cause to suspect that Restrepo had stolen Wolfs car and used his credit card. At Restrepo's house, the police discovered the keys to Wolfs missing Jetta in the pocket of a pair of Restrepo's pants. The police brought Restrepo in for questioning in the early hours of February 23. After reading Restrepo his Miranda rights, Detective William Porter said, "Having these rights in mind, do you wish to talk to me about this case? Tell me your side of the story." Restrepo answered. "I don't know. What would be better? If I talk to a lawyer." The detective replied. "I mean it's up to you I mean, it's perfectly up to you I mean. It be nice to get your ahh side of the story out because if you don't get your side of the story out we got to go with...you know what I'm saying?" Restrepo said he understood. The detective then said, "Okay. So you wish to tell me your side of the story?" Restrepo replied, "Yeah why not."
(10) Restrepo then described the events of February 14 and 15. He also told the detective where Wolfs Jetta was and where the police could find the knife he used to stab Wolf. The police subsequently located Wolfs car in Brook Haven Park, where Restrepo said it would be, and the knife in the creek near his house.
(11) Restrepo was charged with murder in the first degree, possession of a deadly weapon during the commission of a felony, theft of a motor vehicle, second degree forgery, and carrying a concealed dangerous instrument. He was indicted on June 7, 2010. On November 13, 2012, Restrepo filed a morion in limine, a motion to suppress, a motion for a Franks hearing, and a motion to prohibit the death penalty. The Superior Court denied the motions on February 19, 2013. A jury trial was held from January 27 to February 4, 2014, and Restrepo was convicted of all charges except second degree forgery.
(12) On April 15, 2014, the Superior Court held an office conference regarding the transcripts of Restrepo's police interview that were submitted to the jury during trial. The court found the submission of the transcripts to be conceivably prejudicial to Restrepo and granted a new trial on May 6, 2014. The second jury trial was held from November 17 to 26, 2014. Wolfs laptop and social media posts linking "purecolombianblood" to Restrepo were admitted into evidence. Restrepo was again convicted of second degree murder, possession of a deadly weapon during the commission of a felony, theft of a motor vehicle, and carrying a concealed dangerous instrument. He appeals his convictions and the denial of his motions to suppress and for a Franks hearing.[5]

         RESTREPO-DUQUE'S CONTENTIONS

         Restrepo-Duque filed the instant Motion for Postconviction Relief pursuant to Superior Court Rule 61. In his motion, he raises the following grounds for relief:

Ground one: Ineffective Assistance of Counsel in violation of State and Federal law. See Attachment: Ground one supporting facts.
Ground two: There was insufficient evidence to support the conviction. See Attachment: Ground two supporting facts.
Ground three: There were numerous errs (sic) in the trial that were not raised on Appeal. See Attachment: Ground three supporting facts.
Grounds not previously raised: See attachment.

         In Restrepo-Duque's "attachment" to his motion he lists a number of alleged faults of his various counsel in a rambling format. I have condensed his arguments into the following areas:

         Ground one:

A. Restrepo-Duque alleges that his counsel were ineffective for failing to investigate the case fully and not obtaining an expert.[6]
B. Restrepo-Duque alleges his counsel failed to give him sufficient advice on whether or not to testify at trial.[7]
C. Restrepo-Duque complains multiple places that his attorney failed to argue errors in the search warrant both at ...

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