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State v. Grimes

Superior Court of Delaware, Kent

July 23, 2019

STATE OF DELAWARE
v.
RUSSELL M. GRIMES, Defendant.

         RK11-09-0249-01, RK11-09-0250-01, RK11-11-0244-01 through RK11-11-0249-01, RK11-11-0260-01

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

          Susan G. Schmidhauser, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.

          Russell M. Grimes, Pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION

          ANDREA M. FREUD COMMISSIONER.

         On May 28, 2013, the Defendant Russell M. Grimes ("Grimes") was found guilty following a jury trial, during which he represented himself pro se, to one count of Robbery in the First Degree; one count of Possession of a Firearm During Commission of a Felony; one count of Possession of a Firearm by a Person Prohibited; and five counts of Reckless Endangering. He was acquitted of six counts of Aggravated Menacing and one count of one count of Conspiracy in the First Degree. His co-defendant William S. Sells ("Sells") was also found guilty at the same trial of Robbery in the First Degree and Possession of a Firearm During the Commission of a Felony with several other charge including Aggravated Menacing. A timely appeal was filed and the Delaware Supreme Court remanded the matter back to this Court due to errors made during the jury selection.

         During Grimes's first trial the State moved to amend the Grand Jury's Indictment to change the name of the Robbery victim from Rose Marie Hase ("Ms. Hase") to Vicki Ebaugh ("Ms. Ebaugh"). Both women were tellers at the bank and both had been listed as victims of Aggravated Menacing during the course of the Robbery during which the robbers had threatened all the tellers. The evidence at trial showed that Ms. Ebaugh was in fact the teller from whom the money was taken during the robbery. The Court allowed the amendment. At his second trial the amended Indictment was again used without any objection by Grimes, who again proceeded pro se. At the conclusion of the second trial the jury again found Grimes guilty of one count of Robbery in the First Degree; one count of Possession of a Firearm During Commission of a Felony; one count of Possession of a Firearm by a Person Prohibited; one count of Conspiracy in the Second Degree and five counts of Reckless Endangering on November 16, 2016.[1] The State moved to declare Grimes an Habitual Offender. The Court declared Grimes an Habitual Offender and sentenced him to a total of sixty-four years at Level V incarceration with credit for time served suspended after fifty-three years, fifty of which were pursuant to 11 Del. C. § 4214(c).

         Grimes filed a timely pro se appeal to the State Supreme Court in which he alleged that because the jury acquitted him of the lesser included offense of Aggravated Menacing at his first trial that the conviction for Robbery in the First Degree at his second trial constituted a violation of the Double Jeopardy clause of the United State Constitution. The Supreme Court denied Grimes's appeal and affirmed his conviction and sentence.[2] Next, Grimes filed a motion for Postconviction Relief, pro se, on August 3, 2018 and an accompanying memorandum in support. Subsequently, Grimes amended his motion.

         FACTS

         Following are the facts as set forth by the Delaware Supreme Court in its opinion in Grimes's co-defendant Sell's initial appeal from their joint trial:

On August 26, 2011, a masked man entered the First National Bank of Wyoming in Felton, Delaware (the "Bank"), displayed what appeared to be firearm, ordered the Bank manager to exit her office, and told the tellers to empty the cash drawers. During the robbery, the man jumped over a counter in the Bank and blood was later discovered on the ceiling above that counter.FN4 The man placed the money from the cash drawers into a satchel and exited the Bank. These events were recorded on the Bank's security cameras. The money taken from the Bank contained dye packs, a security device designed to stain money taken from the Bank, and "bait bills," bills for which the bank had recorded and maintained serial numbers in case of theft. Over $54, 000 was taken from the Bank.
When the suspect exited the Bank, he entered a black SUV. An employee of the Bank who ran outside during the robbery testified that she saw the SUV driving away from the Bank and that the SUV was emitting "pink, red smoke" which indicated to her that the dye pack had gone off. Officer Keith Shyers of the Harrington Police Department ("Officer Shyers") also observed the SUV, and testified that he saw a black male "hanging out [of] the window" of the SUV and a "red poof that "looked like some kind of paint."
Because the vehicle was traveling at a high rate of speed and he thought something was suspicious, Officer Shyers turned around and began following the SUV. Officer Shyers then heard a call that went out over the radio dispatch for a robbery that had just occurred at the Bank. Officer Shyers was the first officer to begin pursuing the car and was the lead vehicle for much of the pursuit. A few minutes into the pursuit, the SUV stopped at an intersection and the passenger got out of the vehicle and began firing shots at the pursuing officers. Officer Shyers testified that he was approximately 20 to 30 feet from the passenger and theat the passenger was a black male wearing a grey hooded sweatshirt.
The passenger then got back in the SUV and a high-speed pursuit ensued involving officers from the Delaware State Police, Harrington Police Department, and Felton Police Department. At various points during the pursuit, the passenger popped up through the sunroof and fired shots at the officers. The left rear tire of Officer Shyer's vehicle was shot and he abandoned his vehicle and jumped into another officer's car to continue the pursuit.
Corporal Scott Torgerson, an assistant shift supervisor for the Delaware State Police ("Corporal Torgerson"), who was driving a fully-marked Crown Victoria, took over as the lead vehicle in the pursuit. The passenger continued to fire shots at the officers from the sunroof. The SUV drove around spike strips that had been set in its path and Corporal Torgerson continued to pursue it. Shortly thereafter, the driver lost control of the SUV and it came to rest in a ditch with its back tires stuck. The driver and the passenger both exited the SUV and began fleeing and Corporal Torgerson fired shots at them. The driver of the SUV was shot in the leg by Corporal Torgerson and was later identified as [Russell] Grimes. The passenger of the vehicle escaped on foot.
The SUV was registered to Sophia Jones ("Jones"). Jones was Sells' girlfriend. Jones and Sells shared an apartment and had a child together. Jones testified that she did not know who was driving the SUV at the time of the bank robbery because she had not seen the SUV in over a week, but that the last time she had seen the SUV, Sells had been driving it. She testified that Sells had the SUV because he was trying to sell it.
After the robbery, police officers searched the apartment that Jones and Sells shared and asked her questions. Jones gave the officers Sells' cell phone number and told them that Sells' best friend was named "Russell." On August 28, Jones contacted the police and inquired about getting her SUV back. The officers then asked Jones if Sells had contacted her, and she replied that he had called her, inquired about his son, and asked whether the police had been to the apartment because he had heard about the SUV being in an incident with Grimes.
On September 6, 2011, Sells was found barricaded in a room at the Shamrock Motel. The SWAT team deployed tear gas grenades, smoke grenades, stringball grenades, FN5 and stun grenades into the room through a small bathroom window that opened to the outside in order to get Sells to exit the room, but those efforts were unsuccessful. The officers used so many of the various types of grenades that Sergeant Ennis testified that he had "no idea how [Sells] stayed" in the room. FN 6
When the standoff ended and Sells was taken into custody, United State currency was collected from three separate locations of the motel room: in the living room, in the bathroom, and outside the motel underneath the bathroom window. Many of the bills that were collected as evidence at the motel were torn and burned. Some of the money that was collected in the living room area of the motel room also appeared to be stained with a red dye. Sells' defense counsel elicited testimony on cross examination that the red stains on the currency could have been caused by some of the explosives, which discharge red dye. A large red stain also appeared on one of the walls of ...

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