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State v. Booker

Superior Court of Delaware

July 3, 2019


          Submitted: May 15, 2019

         Defendant's Motion for Postconviction Relief DENIED.

         Motion to Withdraw as Counsel for Petitioner Jermaine Booker. GRANTED.


          Charles E. Butler, Judge

         This 3rd day of July, 2019, it appears to the Court that:

         1. Defendant Jermaine Booker ("Booker") has filed a motion for postconviction relief. This is his first postconviction motion following a jury trial and direct appeal. New counsel was appointed to support whatever arguments he wished to make in connection with the postconviction motion. That counsel, however, has filed a motion to withdraw on grounds that a conscientious review has failed to unearth any arguably meritorious issues. Booker was given time to respond to the motion and has communicated with the Court with his own pro se pleading.

         2. As briefly as can be stated, defendant entered a home in a north Wilmington suburb on the morning of January 2, 2014. His apparent intent was burglary, as he had committed a separate burglary in that neighborhood a couple of months earlier. The homeowner, Jacqueline Fiori was either present when he entered or interrupted the burglary in progress. We do not know because Jacqueline Fiori suffered egregious, life threatening injuries as a result of her confrontation Mr. Booker.

         3. After his convictions were affirmed on appeal, Booker filed this motion for post-conviction relief. Counsel was appointed for him to articulate such arguments as he could make to mount a collateral attack on his conviction. After some months, counsel filed a brief with the Court seeking leave to withdraw as counsel on grounds that after a thorough review of the entire record, neither the grounds stated in Booker's initial pleading nor any other grounds counsel could conceptualize were worthy of consideration by the Court.

         4. Booker's first argument was that he was denied effective assistance of counsel in that trial counsel failed to cross-examine the two victims about their exculpatory statements of identification. Jacqueline Fiore, blinded by her attacker and incompetent to answer questions while in the intensive care unit, appeared to identify her attacker as a white person.

         5. What Booker ignores in his pleading is the sympathy any juror would have felt about Jacqueline Fiore as she was wheeled into the courtroom and to the witness stand. Any rational defense counsel would want her off the stand and out of the courtroom as quickly as possible. The state gave the defense what it needed concerning her failure to identify the defendant and her "identification" of a white person as she lay, semi-conscious in the Emergency Room.[1]

         6. Likewise, cross-examining the prior burglary victim, Van Dyk, on his non-identification of the defendant had its own problems. While Van Dyk did not pick Booker out of a standard photo lineup, postconviction counsel noted that the police reports show that he did recognize the defendant when he saw his photo in the newspaper after his arrest. Had defense counsel deliberately drawn out Van Dyk's failure to make a pretrial identification via cross examination, he'd have risked Van Dyk making an identification in a dramatic gesture in open court.

         7. Without conceding that trial counsel met a threshold of ineffective assistance, defendant was identified by any number of evidentiary items, not the least being Jacqueline Fiore's blood on his sneakers. The lack of good identification testimony from the victims was placed before the jury, albeit by the prosecution* Defendant has failed to demonstrate prejudice from whatever choices counsel made concerning the witness' pretrial statements of identification.

         8. Secondary to these arguments, Booker claimed that his trial counsel was ineffective for failing to call his aunt and his cousin as alibi witnesses to testify that he was at home sleeping on the couch at the time of Jacqueline Fiore's attack.

         9. But the police reports, reviewed by post-conviction counsel, belie his asserted alibi. His aunt told police that on the date of the crime, she left the house early, did not know if Booker was home, and did not see him until 8 p.m. that night. Admittedly, she gave a second statement a week later saying she made breakfast for Booker that morning, but the damage was done - there was a prior statement by the alibi witness that did not ...

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