IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CHRISTOPHER DESMOND, )
)
Plaintiff, )
) LD. No.: 91009844DI
V. )
)
STATE OF DELAWARE, )
)
Defendant. )
ORDER
On this 17" day of February, 2021, the Court has considered Defendant
Christopher Desmond’s “Motion to Amend the Motion to Dismiss Eight Counts of
Robbery First Degree” (hereinafter “Motion”). It appears to the Court that:
1. Defendant was arrested in 1991 by Delaware State Police for allegedly
committing a series of robberies in New Castle County, Delaware. After a
full trial, Defendant was convicted of ten counts of Robbery First Degree,
ten counts of Possession of a Deadly Weapon During Commission of a
Felony, three counts of Possession of a Deadly Weapon by a Prohibited
Person, three counts of Felony Theft, two counts of Second Degree
Conspiracy, and one count of Third Degree Escape.! Defendant was
sentenced to 78 years of Level V incarceration for these convictions.
' Def.’s Mot. At p. 2.
2. Defendant’s direct appeal to the Supreme Court of Delaware was denied
on November 16, 1994.? Defendant has also filed a large body of additional
appeals in the Superior Court and various other state and federal courts.
All of Defendant’s additional appeals as well as all related motions and
petitions by Defendant have been unsuccessful at every level. This Court
has frequently noted that Defendant has a long history of repeating
previously rejected arguments in his filings, and that Defendant often tries
to avoid procedural bars to relief by rephrasing and recharacterizing his
past arguments.
3. This Order will address Defendant’s latest Motion. In his latest Motion,
Defendant claims that his convictions for First Degree Robbery should be
vacated because the State withheld exculpatory evidence from the
Defendant, in violation of the State’s obligation to turn over all exculpatory
evidence to Defendant under Brady v. Maryland.
4. For the following reasons, Defendant’s Motion will be DENIED.
5. According to Defendant’s Motion, the State’s case at trial hinged on
witness identification of Defendant as the perpetrator of multiple armed
robberies which took place in New Castle County, Delaware, in 1990-
1991. Defendant states that the key evidence of the State consisted of
witness identifications, where eye-witnesses to the robberies identified
Desmond v. State, 654 A.2d 821 (Del. 1994).
Defendant as the perpetrator of the robberies based on photo displays in
which witnesses picked Defendant’s photograph out among photos of five
other suspects and identified Defendant as the perpetrator of the robberies.3
6. According to Defendant, the State arranged the photos of potential
perpetrators in a suggestive manner which made it more likely that
witnesses would choose his photo from the lineup and identify him as the
perpetrator of the robberies. Additionally, according to Defendant, the
State also suppressed evidence of “five additional eyewitnesses who could
not identify Desmond after witnessing [two of the robberies for which
Defendant was convicted.]”’ Defendant also states that the State chose to
use photo displays rather than using security camera surveillance footage
which showed the robberies taking place, claiming that the latter
constituted stronger evidence and would have cast doubt about whether
Defendant was the actual perpetrator of the robberies.> Defendant claims
that he we “prevented from reviewing these materials at trial, after trial,
and during collateral proceedings by the state’s denials and failure to
disclose favorable materials under Brady.’”®
7. Before addressing the substance of Defendant’s contentions, this Court
must determine if his Motion meets the procedural bars to relief contained
> Def.’s Mot., at p. 2.
* Def.’s Mot., at p. 2.
> Def.’s Mot. At 5-6 (suggesting that Defendant had a lookalike whose resemblance was so strong that the lookalike
was virtually a “twin” of Defendant.)
° Def.’s Mot. At 5.
in Superior Court Criminal Rule 61. Under Rule 61, second or subsequent
motions by a criminal defendant for postconviction relief — such as the
instant motion — must be summarily dismissed unless the movant can show
that either (i) new evidence exists which creates a strong inference that the
movant is actually innocent of the charges for which he has been convicted,
or (ii) pleads with particularity that a new rule of Constitutional law
applicable on collateral review has rendered his sentence invalid. Neither
of these exceptions apply, and Defendant’s Motion must be summarily
dismissed under Rule 61. Defendant has failed to meet either standard, and
summary dismissal is therefore appropriate.
. Defendant has previously made the allegations contained in his current
Motion before this Court under the theory that his defense attorney was
ineffective for failing to obtain this evidence and use it to cast doubt on the
State’s case at trial, thereby violating Defendant’s rights under the Sixth
Amendment to the Constitution of the United States.’ The Superior Court
has previously rejected these arguments.* Defendant’s has also suggested
that police used suggestive photo identification procedures during the
course of their investigation, and this argument has also been rejected by
both the Superior Court and the Supreme Court of Delaware.’ As such,
7 See State v. Desmond, 2011 WL 91984 (Del. Super. 2011), at *14-15.
8 Td.
* State v. Desmond, 1995 WL 717628 (Del Super. 2011), at *3 “Lastly, Desmond argues that the police used
suggestive photographic identification procedures. Desmond's ‘argument’, which consists of three sentences,
concludes that the police used suggestive procedures and that therefore the identifications should have been
Defendant is procedurally barred by Rule 61 from reintroducing his
argument with respect to the alleged manipulation of photo identification
displays, and his Motion is DENIED on this ground.
9. It appears that Defendant has also made his current Brady claim to this
Court previously, and that this claim has been rejected.'? Defendant claims
that he “made reasonable attempts to pursue claims [that the State withheld
evidence in violation of Brady] in state court” but does not describe the
efforts he made nor the reason why they were rejected. As such,
Defendant’s Brady claim fails to meet the bars to procedural relief
contained in Rule 61 and will be DENIED.
10.Finally, Defendant’s current Motion also opines at great length about the
unreliability of eyewitness identification as a form of evidence in general.
A motion for postconviction relief is not the appropriate vehicle for
Defendant to seek relief from his conviction based on the alleged
unreliability of eyewitness testimony in general. Instead, if a Defendant
seeks postconviction relief pursuant to Rule 61, the Defendant should
identify a specific defect with the eyewitness testimony upon which he was
excluded from evidence.”) See also State v. Desmond, 2011 WL 91984, at *3 (noting that in his third motion for
postconviction relief, Defendant claimed that “there was ‘improper and suggestive photographic identification by
the police” and noting that Defendant had attempted to recharacterize his underlying claim in order to avoid the
procedural bars to relief contained in Rule 61).
'° See State v. Desmond, 2011 WL 91984, at *4 (“With respect to Defendant's claim that the State intentionally
withheld evidence [made in his Sixth Motion for Postconviction Relief, filed in 2005], this Court found that ‘[t]his is
effectively a Brady claim and it appears that defendant raises it for the first time here.’)
convicted. Defendant has failed to do so in his current Motion, and in any
event, such claims are procedurally barred under Rule 61 and should have
been asserted in his first motion for postconviction relief.
11.For the foregoing reasons, Defendant’s Motion is DENIED.
p>
Francis J. Jones, Jud
IT ISSO ORDERED.
Original to Prothonotary