IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
) ID No. 0909018475 A/B
)
v. )
)
MICHAEL T. WASHINGTON, )
)
Defendant. )
)
Submitted: August 26, 2021
Decided: November 9, 2021
MEMORANDUM OPINION
Upon Defendant’s Second Motion for Postconviction Relief
DENIED.
Carolyn S. Hake, Esquire, Deputy Attorney General, State of Delaware Department
of Justice, 820 North French Street, Wilmington, DE 19801.
Patrick J. Collins, Esquire, Collins & Associates, 8 East 13th Street Wilmington, DE
19801, Attorney for Defendant.
WHARTON, J.
I. INTRODUCTION
Michael T. Washington (“Washington”) filed his second Motion for
Postconviction Relief on August 30, 2019, seeking a new trial based on newly
discovered evidence of actual innocence. After considering Washington’s claims,
the Court finds his claims are barred by Delaware Superior Court Rule 61 (“Rule
61”). In particular, it is barred as untimely under Rule 61(i)(1), as a successive
motion under Rule 61(i)(2), and, in part, by procedural default under Rule 61(i)(3).
The evidence he presents fails to satisfy the new evidence of actual innocence
standard of Rule 61 in order to make the bars to relief inapplicable. For the reasons
stated below, Washington’s Motion is DENIED.
II. FACTUAL AND PROCEDURAL CONTEXT
In November, 2010, Washington was convicted by a Superior Court jury of
two counts of each of Manslaughter and Possession of a Firearm During the
Commission of a Felony (“PFDCF”) in the shooting deaths of Leighton Francis and
Amin Guy, and, in a subsequent bench trial, an additional severed count of
Possession of a Firearm by a Person Prohibited (“PFBPP”).1 Washington was
sentenced on February 11, 2011, to eighty-six years of imprisonment at Level V,
suspended after sixty-four years for decreasing levels of supervision.2
1
Washington v. State, 2011 WL 4908250, at *1 (Del. 2011).
2
Id.
2
The facts of this case as summarized by the Delaware Supreme Court in
Washington’s direct appeal, are as follows:
It appears from the record that Francis and Guy were found shot
to death on September 1, 2008 (hereinafter “the shooting”) in the front
seat of a bullet-ridden black Lexus (hereinafter “the vehicle”) in the 500
block of E. 10th Street. The first police officer to arrive at the scene
found the vehicle stopped in the middle of traffic, still in gear and
wedged against another car.
Detective John Ciritella of the Wilmington Police Department
(hereinafter “Ciritella”) was assigned to investigate the shooting. As the
investigation unfolded, Ciritella theorized that the shooting occurred
from inside the vehicle as it was leaving the 700 block of E. 10th Street
and that the vehicle continued moving until it came to a stop in the 500
block.
Ciritella recovered a significant number of bullets, bullet
fragments and/or shell casings, from the interior of the vehicle, the 700
block of E. 10th Street, and the victims' bodies following the medical
examiner's autopsies. Ciritella did not, however, recover a weapon that
was used in the shooting.
At trial, Ciritella testified that initially and for several months
after the shooting, he could not develop a lead on a suspect. Finally,
however, in April 2009, Ciritella was advised that an inmate in federal
custody, Christopher Waterman, was interested in disclosing
information about the shooting that he had allegedly heard from another
inmate. The other inmate turned out to be Washington. Similarly, in
May 2009 and December 2009, Ciritella learned that inmates William
Coleman and Isaiah Fields also wanted to disclose information that
another inmate, again Washington, purportedly told each of them about
the shooting. Ciritella conducted individual one-on-one interviews with
Waterman, Coleman, and Fields. As a result of those interviews,
Ciritella learned that between the fall of 2008 and the spring of
2009, Washington allegedly individually told Waterman, Coleman,
and Fields at different times that he was either in the vehicle during the
shooting or that he was the shooter, and that the weapon involved in the
shooting was a “Mac 10,” which Ciritella knew was a candidate
3
weapon. Ciritella also learned from Waterman, Coleman, and Fields
that the shooting was possibly the result of a botched robbery or a
dispute over a drug deal, and that the gun had discharged unexpectedly
in the vehicle.
Ciritella learned additional information from Coleman
about Washington's possible involvement in the shooting, namely
that Washington was worried that a resident of the 700 block of E. 10th
Street, April Gardner (“Gardner”), had witnessed the shooting.
Moreover, Fields told Ciritella that he was with Washington in June or
July 2008 at 930 Spruce Street, a drug hangout, when the “Mac
10” Washington was holding suddenly went off and sprayed gunfire.
As a result of his interview with Fields, Ciritella obtained a
search warrant for 930 Spruce Street and in the ensuing search found a
number of bullet holes in the floor and walls from which he recovered
three bullets. From his interview with Coleman, Ciritella was able to
locate Gardner at her 729 E. 10th Street home. Gardner told Ciritella
that she witnessed the events leading to the shooting on September 1,
2008 from the front steps of her home.
At trial, Gardner testified that, prior to the shooting, she was
outside sitting on her front steps watching her grandson ride his bicycle
when she observed Washington and another male—later identified as
Guy—walking down 10th Street. Gardner told the jury that she
knew Washington because he had grown up in the neighborhood and
had gone to school with her children.
Gardner testified that she observed Washington and his
companion approach another man who was sitting in the driver's seat
of a vehicle that was parked directly in front of her house. According
to Gardner, after the three men conversed briefly, Guy got into the right
front passenger seat of the vehicle and Washington got into the right
rear passenger seat.
Gardner testified that moments after the two men entered the
vehicle the vehicle's windows “erupted.” Shocked by the explosion,
Gardner said, she immediately “grabbed [her] grandson” and ran to her
daughter's house around the corner on Bennett Street where she
remained for several hours before returning home. Gardner testified
4
that as she ran from the scene, she could feel shards of glass getting
caught in her hair, and that she had “glass all in [her] hair” when she
reached her daughter's house. Gardner further testified
that Washington came to her home later that evening “to apologize,”
but that she refused to speak to him.
At trial, the State's ballistics expert, Delaware State Police
Firearms Examiner Carl Rone (hereinafter “Rone”), opined that the
strafing of the vehicle's interior was the result of a semi-automatic or
automatic weapon discharging more than thirty rounds inside the
vehicle from the area of the right rear passenger seat. Rone further
opined that the sixteen bullets and thirty spent shell casings he
examined, which were recovered from the vehicle, the victims' bodies,
and 930 Spruce Street, all came from the same semi-automatic or
automatic weapon.
Washington testified at trial that he visited “Miss April” later in
the evening on September 1, 2008, because he was sorry to hear that
Leighton [sic] and Francis had been shot in front of her house, and that
she had witnessed the shooting. Washington also testified that, a few
days prior to the shooting, he had a conversation with Leighton and
Guy, while in the vehicle, about a gun his cousin wanted to sell.
According to Washington, the gun he was helping his cousin sell
“hold[s] 30 rounds” and was “the same gun that went off in the house
[on] 930 Spruce Street.” Washington denied any involvement in the
shooting, however, and he testified that at the time of the shooting he
was “cooking up some drugs” at 930 Spruce Street.3
Washington appealed his convictions to the Delaware Supreme Court. He
raised two issues on appeal: (1) the prosecutor committed misconduct when she
referred to a cell phone call during her opening statement, and (2) the State’s ballistic
expert testified at trial, contrary to his report, that bullet fragments recovered in the
3
Id., at *1-3.
5
700 block of E. 10th Street “matched” those recovered from the victim’s bodies.4
The Delaware Supreme Court affirmed Washington’s convictions.5
On March 7, 2012, Washington filed a timely pro se motion for postconviction
relief pursuant to Rule 61.6 Later, Washington filed an Amended Motion for
Postconviction Relief on August 7, 2012.7 Then, on February 25, 2013, Washington
filed a Motion for Appointment of Counsel.8 After supplementation of the record
by trial counsel, appointment of postconviction counsel, the State’s response, and
postconviction counsel’s motion to withdraw, Washington filed amendments to his
pro se motion for postconviction relief in March 2016.9 Ultimately, Washington’s
postconviction relief motion was denied by the Superior Court.10 The Supreme
Court affirmed that decision.11
On May 24, 2017, Washington filed a timely petition for federal habeas
relief.12 In April of 2019, Washington moved to stay the federal proceedings to
“argue the newly discovered evidence in the Superior Court in order to properly
4
Id., at *3-4.
5
Id.
6
D.I. 64.
7
D.I. 77.
8
D.I. 95.
9
D.I. 139.
10
State v. Washington, 2016 WL 6248462 (Del. Super. 2016).
11
Washington v. State, 2017 WL 1573119 (Del. 2017).
12
State’s Resp. to Def.’s Second Mot. for Postconviction Relief, at 4, D. I. 182.
6
exhaust his remedies and avoid any procedural issue[s]… in this district court.”13
The District Court granted his motion and stayed the matter.14 On August 30, 2019,
Washington filed his second pro se Motion for Postconviction Relief and a Motion
for Appointment of Counsel.15 On September 9, 2019, the Court directed the
appointment of counsel.16 Then, through counsel, Washington filed an amended
second motion on April 28, 2020.17 The State filed its Response on March 1, 2021.18
Next, postconviction counsel sought, and was granted a stay for a reply until the
Delaware Supreme Court issued its opinion in Purnell v. State.19 That opinion was
issued on June 17, 2021. Washington filed reply to the State’s response on July 27,
2021.20 The State responded to Washington’s reply on Aug. 26, 2021.21
III. THE PARTIES CONTENTIONS
Washington contends he is entitled to postconviction relief because newly
discovered evidence creates a strong inference that he is “actually innocent.”
Washington argues three pieces of new evidence exist that undermine confidence in
the result of his trial. First, inmate witness Christopher Waterman (“Waterman”)
13
Def.’s Second Mot. for Postconviction Relief, at 9, D.I. 173.
14
Id.
15
Def.’s Mot. for Postconviction Relief, D.I. 163, 164.
16
D.I. 165.
17
Def.’s Second Mot. for Postconviction Relief, D.I. 173.
18
State’s Resp. to Def.’s Second Mot. for Postconviction Relief, D.I.
19
254 A.3d 1053 (Del. 2021).
20
Def.’s Second Mot. For Postconviction Relief Reply to State’s Resp., D.I. 197.
21
State’s Resp. to Def.’s Reply Brief, D.I. 199.
7
recanted his testimony.22 Second, inmate witness Isaiah Fields (“Fields”) was the
beneficiary of a tacit sentence reduction agreement that was not disclosed to the
defense, resulting in a Brady violation.23 Finally, the State’s expert ballistics
witness, Forensic Firearms Examiner Carl Rone (“Rone”) misled the jury by
misrepresenting his credentials and his identification methods have been shown to
be “subjective and unreliable.”24 The State contends Washington is procedurally
barred from asserting a claim under Rule 61 because: (1) it is untimely; (2) it is a
successive motion; and (3) his claims related to Fields and Rhone were not raised on
direct appeal or in his first postconviction relief motion.25 Additionally, the State
argues that Washington has failed to overcome the bars to relief erected by Rule 61
because his claims are neither newly discovered, nor do they establish actual
innocence.26
IV. STANDARD OF REVIEW
Delaware Superior Court Rule 61 provides an individual with the ability to
seek postconviction relief.27 The Delaware Supreme Court has held that Delaware
22
Def.’s Second Mot. for Postconviction Relief, at 12, D.I, 173.
23
Id.
24
Id.
25
State’s Resp. to Def.’s Second Mot. for Postconviction Relief, at 11-15, D.I. 182.
26
Id., at 9.
27
Super. Ct. Crim. R. 61.
8
courts should apply the version of Rule 61 at the time a defendant filed his motion
for postconviction relief.28 Washington filed his second Rule 61 motion in August
of 2019. Therefore, Washington’s motion is governed by the version of Rule 61
existing after the substantial amendments to it became effective on June 14, 2014.
The Court considers a motion under Rule 61 as a matter of discretion.29
Before looking to the exceptions to Rule 61, this Court must first consider and apply
the procedural bars set forth in Rule 61.30 A motion for postconviction relief can be
barred for time limitations, successive motions, procedural default, or former
adjudication.31 A motion exceeds time limitations if it is filed more than one year
after the conviction becomes final, or, if it asserts a retroactively applicable right that
is newly recognized after the judgment of conviction is final, more than one year
after the right was first recognized by the Supreme Court of Delaware or the United
States Supreme Court.32 A second or subsequent motion is considered successive
and therefore barred and subject to summary dismissal unless the movant was
convicted after a trial and “pleads with particularity that new evidence exists that
creates a strong inference that the movant is actually innocent in fact of the acts
28
Jones v. State, 127 A.3d 397, 1 (Del. 2015).
29
Durham v. State, 2017 WL 5450746, at *1 (Del. Nov. 13, 2017) (citing Claudio
v. State, 958 A.2d 846, 847 (Del. 2008)).
30
Id.
31
Super. Ct. Crim. R. 61(i).
32
Super. Ct. Crim. R. 61(i)(1).
9
underlying the charges of which he was convicted” or “pleads with particularity a
claim that a new rule of constitutional law, made retroactive to cases on collateral
review by the United States Supreme Court or the Delaware Supreme Court, applies
to the movant's case and renders the conviction ... invalid.”33 Grounds for relief “not
asserted in the proceedings leading to the judgment of conviction” are barred as
procedurally defaulted unless the movant can show “cause for relief” and “prejudice
from [the] violation.”34 Grounds for relief formerly adjudicated in the case,
including “proceedings leading to the judgment of conviction, in an appeal, in a post-
conviction proceeding, or in a federal habeas corpus hearing” are barred.35 The bars
to relief do not apply either to a claim that the court lacked jurisdiction or to a claim
that pleads with particularity that new evidence exists that creates a strong inference
of actual innocence,36
To prove a claim that newly discovered evidence exists that creates a strong
inference of actual innocence, a petitioner must show “the evidence (a) will probably
change the result if a new trial is granted; (b) was discovered since the trial and could
not have been discovered before by the exercise of due diligence; and (c) is not
33
Super. Ct. Crim R. 61(i)(2); Super. Ct. Crim. R. 61(d)(2).
34
Super. Ct. Crim. R. 61(i)(3).
35
Super. Ct. Crim. R. 61(i)(4).
36
Super. Ct. Crim. R. 61(i)(5).
10
merely cumulative or impeaching.”37 Satisfying the actual innocence test is a heavy
burden and such claims are rare.38 Furthermore, to prove “[i]nnocence of the ‘acts
underlying the charges’ requires ‘more than innocence of intent; it requires new
evidence that a person other than the petitioner committed the crime.’”39 The
Delaware Supreme Court also held in Purnell that “a body of new evidence that goes
only to the weight or credibility of that which was presented to the jury is almost
never adequate to meet the demanding bar for being granted a new trial.”40
Attacking a witness’s credibility in general will not be sufficient to satisfy the actual
innocence standard.41
V. DISCUSSION
Washington’s Motion is procedurally barred under Rule 61 because it is
untimely, successive, and raises grounds not asserted previously. He has failed to
overcome these bars because the evidence he has produced is either not newly
discovered, fails to establish actual innocence, or both.
37
Taylor v. State, 180 A.3d 41 (Del. 2018) (citing Downes v. State, 771 A.2d 289,
291 (Del. 2001).
38
Purnell v. State, 254 A.3d 1053, 1100 (Del. 2021).
39
Id. at 1095 (citing State v. Taylor, 2018 WL 3199537, at *7 (Del. Super. Ct. June
28, 2018), aff'd, 206 A.3d 825 (Del. 2019)).
40
Id. at 1098.
41
Id.
11
Establishing actual innocence requires evidence that will probably change the
result if a new trial is granted.42 All three of Washington’s claims of newly
discovered evidence fail to address, and therefore to overcome, highly incriminating
testimony of the eyewitness, April Gardner. Gardner testified that while watching
her grandson ride his bicycle in front of her house, she observed Washington enter
the right rear passenger seat of the vehicle where the shooting took place. 43 She
testified that after Washington entered the vehicle, the windows of the vehicle
erupted, causing her to grab her grandson and run to her daughter’s house nearby
where she remained for several hours.44 After the eruption, Gardner testified to
remembering having “glass all in [her] hair.”45 Moreover, Gardner testified that later
on the same evening Washington came to her home to try “to apologize,” but she
refused to speak with him.
Gardner’s eyewitness account that Washington was in the car when the
shooting occurred and her testimony that Washington later tried to apologize for the
shooting is strong independent evidence of Washington’s guilt. The evidence
Washington has proffered (Waterman’s recantation, the alleged Brady violation, and
42
Taylor v. State, 180 A.3d 41 (Del. 2018) (citing Downes v. State, 771 A.2d 289,
291 (Del. 2001).
43
Washington v. State, 2011 WL 4908250 (Del. 2011).
44
Id.
45
Id.
12
Rone’s lack of credibility) has no effect on Gardner’s testimony and, therefore,
would not change the result.
A. Washington’s Motion is Procedurally Barred.
Under Rule 61(i)(1) and Rule 61(i)(2), Washington’s Motion is barred
because it is untimely and successive.46 The Delaware Supreme Court issued its
ruling affirming Washington’s conviction on October 14, 2011.47 This second
postconviction relief motion was not filed until August of 2019, almost eight years
after his conviction was final.48 Because Washington’s motion was filed more than
one year after his conviction became final and is his second motion, it is barred.
Further, his claims related to an alleged tacit agreement with Fields and to Rhone’s
qualifications and methodology are barred as not raised previously.
The State filed its motion to reduce Fields’ sentence based on his substantial
assistance two months after trial, but Washington did not raise this issue in either his
direct appeal or his first postconviction relief motion. Washington has not shown
cause for his failure to raise this claim previously, nor as discussed below, has he
established actual prejudice from the claimed Brady violation.
Washington did not object to Rone’s credentials or methodology at trial. And,
as with his claimed Brady violation, he did not raise this claim in his direct appeal
46
Super. Ct. Crim. R. 61(i)(1)-(2).
47
Washington v. State, 2011 WL 4908250 (Del. 2011).
48
Def.’s Second Mot. for Postconviction Relief, at 1, D.I. 173.
13
or his first conviction relief motion. The issue was available to him since many of
the cases and materials upon which he relies predate either his direct appeal or the
resolution of his first postconviction relief motion. Again, Washington has failed to
show cause for his failure to raise this issue previously, or as discussed below,
prejudice.
B. Washington’s Claims Do Not Overcome Rule 61’s Bars to Relief.
Washington argues he has overcome the procedural defaults in Rule 61
because the evidence he is presenting is “new” and “creates a strong inference that
[he] is actually innocent[.]”49 To prove actual innocence, Washington must satisfy
the heavy burden of showing any newly discovered evidence “(a) will probably
change the result if a new trial is granted; (b) was discovered since the trial and could
not have been discovered before by the exercise of due diligence; and (c) is not
merely cumulative or impeaching.”50 Washington specifically claims: (1) Waterman
recanted his testimony; (2) Fields received a sentence reduction pursuant to an
undisclosed tacit agreement with the State, constituting a Brady violation; and (3)
Rone misled jury by misrepresenting his credentials and using subjective and
49
Super. Ct. Crim. R. 61(d)(2)(i).
50
Taylor v. State, 180 A.3d 41 (Del. 2018) (citing Downes v. State, 771 A.2d 289,
291 (Del. 2001).
14
unreliable identification methods.51 The proffered evidence does not satisfy the
actual innocence requirement.
1. Waterman’s’ Recantation
Evidence of Waterman’s recantation fails to meet the heavy burden of Rule
61. Washington’s conviction was upheld on direct appeal on October 14, 2011.52
This motion was not filed until August 30, 2019.53 Delaware courts generally view
applications based on a witness’ recantation with suspicion.54 The Delaware
Supreme Court has held also that if recantations were “products of prison
atmosphere [they are] to be received with great caution.”55
Here, Washington asserts that Waterman’s recantation of his testimony would
“likely” change the outcome of the judgment.56 Waterman signed an affidavit stating
his testimony was false and that Washington never admitted committing the killings
to him.57 Further, Waterman states that he made up this testimony to get a sentence
reduction for his prison term.58 Waterman claims his false testimony was based on
rumors and the conversations of other inmates.59
51
Def.’s Second Mot. for Postconviction Relief, at 12, D.I. 173.
52
Washington v. State, 2011 WL 4908250 (Del. 2011).
53
Taylor v. State, 180 A.3d 41 (Del. 2018).
54
Blankenship v. State, 447 A.2d 428, 433 (Del. 1982).
55
Id. at 434 (citing Johnson v. State, 410 A.2d 1014, 1015 (Del. 1980)).
56
Def’s Second Mot. for Postconviction Relief, at 26, D.I. 173.
57
Id, at 24 (citing Waterman’s Aff. A252).
58
Id.
59
Id.
15
Waterman’s recantation would not “probably change the result if a new trial
is granted[.]”60 Waterman testified during trial that Washington admitted guilt to
him personally, but in Waterman’s affidavit he states that he heard from other
inmates that Washington committed the crime. Waterman’s recantation must be
viewed with suspicion.61 But even if the Court were to accept it at face value, it does
not provide new evidence that a person other than Washington committed the crime,
nor does it establish that no reasonable jury would have found Washington guilty
beyond a reasonable doubt. Far from establishing that someone other than
Washington committed the crimes, it shows that Washington was rumored to be the
killer. If Waterman’s affidavit is to be believed, it merely eliminates him as a
witness, but does not challenge the factual accuracy of the rumors. Nor does it
challenge the other independent, significant testimony from Fields and Coleman that
Washington incriminated himself to them.62 Most importantly, it does not challenge
Gardner’s eyewitness testimony that she saw Washington enter the vehicle in which
the Francis and Guy were killed moments before its windows “erupted” and that he
60
Taylor v. State, 180 A.3d 41 (Del. 2018) (citing Downes v. State, 771 A.2d 289,
291 (Del. 2001).
61
Blankenship v. State, 447 A.2d 428, 433 (Del. 1982).
62
Def.’s Second Mot. for Postconviction Relief, at 13-17, D.I. 173.
16
later attempted to “apologize.”63 The recantation merely impeaches Waterman’s
trial testimony and does not constitute new evidence that proves actual innocence.64
2. Alleged Brady Violation
Washington does not provide any evidence that an agreement existed between
the State and Fields, tacit or otherwise, at the time of trial. Thus, he has failed to
establish a Brady violation. Furthermore, even if such a tacit agreement existed, it
is insufficient to establish the actual innocence.
In Brady v. Maryland, the United States Supreme Court held “the suppression
by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.”65 Failure to produce impeachment
or exculpatory evidence that is material to the case can constitute a Brady violation.66
A Brady violation consists of three parts: “(1) evidence exists that is favorable to the
accused, because it is either exculpatory or impeaching; (2) that evidence is
suppressed by the State; and (3) its suppression prejudices the defendant.” 67 A
defendant must show that the State’s nondisclosure created “a reasonable
63
Id. at 17-18.
64
Taylor v. State, 180 A.3d 41 (Del. 2018) (citing Downes v. State, 771 A.2d 289,
291 (Del. 2001).
65
Brady v. Maryland, 373 U.S. 83, 87 (1963).
66
Wright v. State, 91 A.3d 972, 987 (Del. 2014) (citing Bagley, 473 U.S. 667, 676
(1985)).
67
Id. at 988 (citing Starling v. State, 882 A.2d 747 (Del. 2005)).
17
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.”68 Furthermore, reasonable probability of a
different outcome occurs when the evidence presented “undermines confidence in
the outcome of the trial.”69
Here, Washington asserts that the State did not disclose a tacit sentence
reduction agreement it had with Isaiah Fields.70 Washington contends that the
State’s motion to reduce Fields’ sentence based on his substantial assistance in
prosecuting Washington is evidence that an undisclosed tacit agreement existed at
the time of his trial.71 That motion was filed and granted in January of 2011, two
months after the conclusion of Washington’s trial, but before his sentencing.72
Washington has presented no real evidence that an agreement between the
State and Fields existed at the time of trial, he merely infers the existence of such an
agreement. In fact, the prosecutor expressly stated that there was no such
agreement.73 Even if a tacit agreement existed at the time of trial, such an agreement
does not constitute as a Brady violation, because Washington was not prejudiced.
Independent, significant incriminating evidence existed to convict Washington, and
68
Id.
69
Id. (citing Bagley, 667 U.S. at 678).
70
Def.’s Second Mot. for Postconviction Relief, at 12, D.I. 173.
71
Id., at 27.
72
Id.
73
Tr. Oct. 27, 2010, at 10.
18
the alleged tacit agreement constitutes, at best, only theoretical de minimis prejudice
to Washington. Put differently, this tacit agreement is merely impeachment
evidence and does not create a reasonable probability that a different outcome would
occur, especially in light of testimony from both Gardner and Coleman.74 Further,
it is insufficient to create an inference of actual innocence under to Rule 61(d)(2)(i)
or Purnell.
3. Carl Rone
The evidence presented regarding Carl Rone’s credibility and his
methodology does not constitute “new” evidence under Rule 61 and does not create
a strong inference that, if retried, the outcome of a new trial would be different.
Washington asserts that Rone’s credibility is in question because of his 2018 guilty
plea to crimes he committed in 2016 and 2017 and that the Delaware Supreme
Court’s decision in Fowler v. State75 supports his request for a new trial.76
Washington argues Rone’s testimony was critical in determining guilt because Rone
presented evidence tying the gun used at 930 Spruce Street to the gun used in the
homicides.77 Further, Rone misled the jury when he incorrectly represented his
certification with the Association of Firearm and Toolmark Examiners (“AFTE”) at
74
Wright, 91 A.3d at 988.
75
194 A.3d 16 (Del. 2018).
76
Def.’s Second Mot. for Postconviction Relief, at 33-34, D.I. 173.
77
Id. at 33-34.
19
the time of trial.78 Finally, Washington asserts the methods used by Rone are
unreliable.79
Washington expends a great deal of energy discussing the fallout from Rone’s
subsequent criminal conduct in cases in which Rone had testified for the State, his
misrepresentation of his credentials, and the deficiencies in his methodology in
making ballistics identifications. But he fails to address the significance of Rone’s
testimony in the context of the defense theory of the case. Rone’s testimony
connecting the firearm used at 930 Spruce Street to the firearm used in the homicide
was not contested by the defense. He was not cross-examined on that connection
and Washington did not argue that the firearm used at 930 Spruce Street was a
different firearm than the one used in the vehicle where the shootings took place.
Specifically, Washington testified at trial that while present at 930 Spruce Street, he
observed Michael Fields with this firearm “looking at it, … playing with it back and
forth and the gun just went off in the floor into the wall[.]”80 Washington further
testified, “next time I seen that gun was the day of the shooting accident.”81
Washington testified that on that date – September 1st – he gave to gun to Kareem
Bay who was interested in buying it.82 Since the ballistics match was not an issue
78
Id. at 51-52.
79
Id. at 39.
80
Tr., Nov. 3, 2010, Michael Washington Direct Examination, at 88.
81
Id., at 89.
82
Id., at 92, 94.
20
contested by Washington, Rone’s testimony connecting the firearm used at 930
Spruce to the one used in the homicides was not crucial in determining guilt.
While Rone’s opinion testimony was not disputed on the issue of whether the
same gun was involved in the shooting at 930 Spruce Street and the homicides, it
was disputed on the issue of whether the gun was an automatic or semi-automatic
firearm. He was cross-examined on that point almost exclusively.83 In summation,
defense counsel framed the dispute this way: “The issue – the issue is, was it
automatic fire or semi-automatic fire.”84 The issue arose because, as defense counsel
put it, “If it’s – if- the State doesn’t want automatic fire, cause automatic fire puts
you in the accident category. This thing took off.”85 Rone had opined that the
weapon was a semi-automatic weapon requiring a separate trigger pull for each shot,
whereas the defense expert said it was automatic fire, requiring only a single trigger
pull.86 The difference reflected the shooter’s state of mind. Thus, a semi-automatic
weapon, requiring 30 separate trigger pulls, indicated intentional first degree
murders. An automatic weapon indicated reckless or criminally negligent killings,
requiring verdicts of manslaughter or criminally negligent homicide. By its verdicts
of manslaughter, the jury rejected the only opinion of Rone’s that Washington
83
Tr., Nov. 1. 2010, Carl Rone Cross-Examination, at 65-104.
84
Tr., Nov. 9, 2010, Defense Summation, at 110-111.
85
Id., at 111.
86
Id., 111-114, 125 .
21
contested. When put in its proper context, Rone’s testimony did not materially
contribute to the jury finding Washington guilty. Washington’s complaints about
Rone do not create a strong inference of actual innocence sufficient to overcome
Rule 61(d)(2)(i)’s procedural bars because they are merely impeachment evidence
on a collateral issue and do not create a strong inference that the outcome probably
would be different if presented to a jury.
Additionally, Rone’s testimony was not central to Washington’s conviction
because other more significant evidence supported the jury’s verdict. Gardner’s
eyewitness testimony observing Washington enter the vehicle moments before the
shooting and her testimony that Washington later tried to apologize is significant,
independent incriminating evidence of guilt, as is Coleman’s additional
incriminating testimony that Washington killed Francis and Guy.
Washington claims that he is entitled to a new trial under Fowler v. State.87
However, his case is procedurally and substantively different from Fowler.
Procedurally, Fowler involved a first postconviction relief motion, which did not
require Fowler to establish his actual innocence.88 Substantively, in Fowler, Rone’s
tainted testimony was crucial for a finding of guilt, especially where the State had
not provided the defense with out of court witness statements in violation of its
87
Fowler v. State, 194 A.3d 16 (Del. 2018).
88
Id. See also, Purnell v. State, 254 A.3d 1053, 1100 (Del. 2021).
22
Jencks obligations. Here, independent, significant, untainted incriminating evidence
was present for the jury to consider.
Washington’s case is more akin to Dixon v. State.89 The Delaware Supreme
Court upheld Dixon’s conviction after he filed a second motion for postconviction
relief.90 The Supreme Court distinguished Dixon from Fowler both substantively
and procedurally. In Dixon, the court held “the key evidence the State used to prove
that Dixon was the shooter, other than that offered by Rone, was admissible…”91
Procedurally, both in Dixon and here, the second motions for postconviction relief
require proof of actual innocence.
Washington’s reliance on Rone’s misrepresentation of his credentials during
trial is insufficient to meet the burden of Rule 61. Rone’s misrepresentation of his
certification with AFTE does not constitute new evidence of actual innocence
because it was available at the time of trial and discoverable with due diligence.
Moreover, the evidence is nothing more than insubstantial impeachment evidence.92
To the extent that it matters, the attack on Rone’s methodology does not
constitute new evidence of actual innocence under Rule 61. In his motion,
Washington relies on a 2009 National Academy of Science report to contest Rone’s
89
Dixon v. State, No. 319, 2020, 2021 WL 3404223, at *1 (Del. Aug. 4, 2021).
90
Id.
91
Id.
92
See, Taylor v. State, 180 A.3d 41 (Del. 2018) (citing Downes v. State, 771 A.2d
289, 291 (Del. 2001).
23
methodology. This report was available in 2010 at the time of Washington’s trial
and therefore, does not constitute newly discovered evidence. Washington had the
opportunity to contest the subjective nature of Rone’s analysis at trial but did not. 93
Washington also relies on a 2016 President’s Council of Advisors on Science and
Technology report. While this report was unavailable at trial, it is merely cumulative
impeachment evidence and does not create a strong inference of actual innocence.
It is not reasonable to believe that, had this evidence regarding Rone’s methodology
been presented at trial, the probable result would have been different.
4. Cumulative Effect
Apparently shifting gears, Washington concedes in his Reply to the State’s
response that “[a]ny of the claims standing alone would be insufficient to satisfy the
‘daunting burden’ established in Purnell for overcoming the procedural bar based
on actual innocence.”94 The Court agrees, but even cumulatively, the evidence is
insufficient to establish actual innocence under Rule 61. None of Washington’s
claims, individually or cumulatively, point to anyone else as the perpetrator and none
of them undermine the strong incriminating evidence provided by Gardner and
93
See Dixon v. State, No. 319, 2020, 2021 WL 3404223, at *4 (Del. Aug. 4, 2021).
94
Def.’s Reply to State’s Response, at 12, D.I 197.
24
Coleman. There is no reason to believe that they would “probably change” the
outcome if presented to a jury.95
C. CONCLUSION
For the foregoing reasons, Washington’s Motion for Postconviction Relief is
DENIED.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
95
Taylor v. State, 180 A.3d 41 (Del. 2018) (citing Downes v. State, 771 A.2d 289,
291 (Del. 2001).
25