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State v. Kirk

Superior Court of Delaware

November 27, 2019

STATE OF DELAWARE, Plaintiff,
v.
MARK A. KIRK, Defendant.

          Submitted: July 1, 2019

          Amended: August 13, 2019

          Ann Marie Puit, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Mark A. Kirk, James T. Vaugh Correctional Center, Smyrna, DE, pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF (SIXTH) SHOULD BE SUMMARILY DISMISSED

          JANINE M. SALOMONE, COMMISSIONER

         This 27th day of November 2019, upon consideration of Defendant's sixth Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. On October 23, 1997, following a Superior Court bench trial, Defendant Mark A. Kirk was found guilty of three (3) counts of Murder in the First Degree (Felony Murder), two (2) counts of Assault in the First Degree, one (1) count of Assault in the Third Degree and one (1) count of Arson in the Third Degree. These charges stemmed from an incident that occurred on December 3, 1996. After an argument with his girlfriend, Kirk poured rum on a lite stove burner in her apartment causing a fire in the building that resulted in the death of a man and his two children as well as serious injuries to other individuals. The Superior Court sentenced Kirk to three terms of life imprisonment on the Felony Murder convictions, plus a total of 23 years of Level V incarceration on the remaining convictions.

         2. The Delaware Supreme Court affirmed Kirk's conviction and sentence on direct appeal.[1]

         3. On February 4, 2000, Kirk filed a motion for postconviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61") seeking an evidentiary hearing and a new trial. That postconviction relief motion raised three grounds for relief including (i) ineffective assistance of counsel, (ii) falsified evidence and (iii) unconstitutional admission into evidence of Kirk's statements to police.[2] The Superior Court denied the motion on May 23, 2000.[3] The Delaware Supreme Court affirmed the denial of Kirk's first Rule 61 postconviction relief motion on October 16, 2000.[4]

         4. On May 1, 2001, Kirk filed a second Rule 61 motion for postconviction relief. That motion raised two grounds for relief. Specifically, that (i) "no rational trier of fact could have found the essential element[s] of arson beyond a reasonable doubt," and therefore the conviction was a violation of Kirk's due process rights, and (ii) the indictment charging him with Arson in the First Degree did not properly state the elements of the crime and therefore could not support a conviction for Arson in the Third Degree (a lesser included offense). On June 25, 2001, the Superior Court summarily dismissed Kirk's second Rule 61 motion finding that the claims raised were procedurally barred under Rule 61 because they could have (and should have) been raised in his first Rule 61 motion.[5] The Delaware Supreme Court affirmed the denial of Kirk's second Rule 61 motion for postconviction relief on February 12, 2002.[6]

         5. On May 7, 2002, Kirk filed a federal petition for writ of habeas corpus raising, among other things, certain Fifth Amendment violations and ineffective assistance of counsel claims. On January 30, 2003, the United States District Court for the District of Delaware denied Kirk's habeas petition finding that, among other things, (i) Kirk did not make clear and unambiguous requests to the police to cease their interview with him, (ii) Kirk's confession was voluntary under the totality of the circumstances, and (iii) Kirk's claims of ineffective assistance of counsel were deemed exhausted, procedurally defaulted and/or did not constitute ineffective assistance of counsel.[7] On March 1, 2003 and March 19, 2003, respectively, Kirk filed a Notice of Appeal of the District Court decision and a Motion for Certificate of Appealability with the United States Court of Appeals for the Third Circuit. Kirk's motion for Certificate of Appealability was denied on July 21, 2003.

         6. While his appeal to the United States Court of Appeals for the Third Circuit was still pending, Kirk filed a third Rule 61 motion for postconviction relief with the Superior Court on April 9, 2003. In his third Rule 61 motion, Kirk asserted that some of his convictions should be vacated based on the Delaware Supreme Court decision in Williams v. State[8] The Williams decision redefined the phrase "in furtherance of with respect to Delaware's felony murder statute and holds that felony murder cannot attach unless the murder is a consequence of the felony and is intended to help the felony progress.[9] Based upon the Williams decision, the Superior Court granted Kirk's third Rule 61 motion on substantive grounds and vacated Kirk's three convictions for felony Murder in the First Degree and his two convictions for Assault in the First Degree.[10]

         7. Although the State conceded in its response briefing that the Williams decision required that the foregoing convictions be vacated, the State also argued that the appropriate remedy was to modify Kirk's judgment and convict him of the lesser included offenses of Manslaughter (3 counts) pursuant to 11 Del. C. §632 and Assault in the Second Degree (2 counts) pursuant to 11 Del. C. §612. Kirk, on the other hand, argued that the appropriate remedy was for the Superior Court to enter judgments of acquittal, or in the alternative, grant him a new trial.

         8. After reviewing the evidence admitted at Kirk's trial, the findings of fact and conclusions of law, the Superior Court ordered a re-sentencing hearing be held at which time a new verdict was to be entered and Kirk was to be re-sentenced for the lesser included offenses as requested by the State.[11]

         9. Kirk was re-sentenced on February 1, 2005 to 10 years of Level V incarceration on each of the three Manslaughter convictions and 8 years of Level V incarceration on each of the two convictions for Assault in the Second Degree for a total of 46 years of Level V incarceration. Kirk's sentences for Arson in the Third Degree and Assault in the Third Degree remained the same (2 years and 1 year at Level V, respectively).

         10. Kirk appealed the re-sentencing to the Delaware Supreme Court. His sole claim on appeal was that the Superior Court lacked jurisdiction to enter convictions for Manslaughter and Assault in the Second Degree because the 5-year statute of limitations for bringing felony charges under 11 Del. C. §205(b)(1) had run.[12]According to Kirk, the 5-year statute of limitations on those charges expired on December 3, 2002, thereby rendering the February 11, 2005 Order invalid and a violation of his due process rights.[13]

         11. The Delaware Supreme Court affirmed the February 11, 2005 Order of the Superior Court.[14] In so doing, the Delaware Supreme Court stated as follows:

Kirk's, and his former counsel's, claims that the Superior Court's action were barred by the statute of limitations and violate his constitutional rights are based on the assumption that, in implementing a remedy for the miscarriage of justice, the Superior Court initiated a new prosecution against Kirk. That assumption is erroneous.Rather, the Superior Court, properly relying on the findings of the Superior Court judge who presided over Kirk's trial, did no more than re-sentence Kirk on lesser-included charges that relate back to his original convictions. The statute of limitations is not implicated in such a situation. Nor do we find that the remedy implemented by the Superior Court, which was fully consistent with well-settled Delaware law, violated any of Kirk's constitutional rights.[15]

         12. On March 21, 2007, Kirk filed a fourth Rule 61 motion for postconviction relief claiming that newly discovered evidence warranted a new trial.[16] The Superior Court summarily dismissed Kirk's fourth Rule 61 motion finding that the new evidence would not have changed the outcome of the trial, could have been discovered before trial and was merely cumulative and impeaching.[17] On December 5, 2007, the Delaware Supreme Court affirmed the denial of Kirk's fourth Rule 61 motion.[18]

         13. In January 2008, Kirk filed a second federal petition for writ of habeas corpus with the United States District Court for the District of Delaware. The District Court denied and dismissed the second petition for lack of jurisdiction pursuant to 28 U.S.C. ...


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