State v. Lampkins

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
Plaintiff, )
)
)
v. ) Cr. ID. No. 80001076DI
)
)
JAPHIS LAMPKINS, )
)
Defendant. )

Submitted: July 12, 2023
Decided: September 28, 2023

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE SUMMARILY DISMISSED

Carolyn Hake, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.

Japhis Lampkins, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.

O’Connor, Commissioner.

1
 This 28th day of September, 2023, upon consideration of Defendant’s Motion

for Postconviction Relief, the State’s Response to Defendant’s Motion for

Postconviction Relief, Defendant’s Pro Se Amended Reply to State’s Response to

Defendant’s Pro Se Motion for Postconviction Relief, and the record in this matter,

the following is my Report and Recommendation.

FACTUAL BACKGROUND

On August 2, 1983, the Delaware Supreme Court set forth the following facts

in its Opinion affirming Japhis Lampkins’ (“Defendant” or “Lampkins”) convictions

on direct appeal:1

At trial before a jury, the State presented evidence as follows:

Fifty-nine year old Mary Dugan (hereinafter “victim”) lived with her son in

an apartment at 1409 Delaware Avenue in Wilmington. On April 2, 1980, about

noon, the victim telephoned her son at work, as was her custom. During the

conversation, the son asked his mother to shop for groceries at a local supermarket.

At approximately 3:00 p.m., a police officer responded to a “woman screaming”

complaint at the victim's apartment house. The officer entered the victim's apartment

through an open door after his call went unanswered. Upon entering the living room,

the officer saw the victim on the floor, blood flowing from the left side of her face,

her mouth opening and closing, her eyes fluttering. Standing nearby was her

1
Lampkins v. State, 465 A.2d 785, 786-88 (Del. Aug. 2, 1983).
2
shopping cart with two bags of groceries. Alongside her body were several of her

kitchen knives, including one from which the blade had been broken off. Another

knife was lodged, up to its handle, in the victim's left buttock. Her panties lay beside

her. The officer called immediately for an ambulance. The victim was pronounced

dead at the hospital.

The Medical Examiner who performed the autopsy testified that the condition

of the victim's head and face was “awful.” His examination revealed that she was

repeatedly stabbed in the face, struck on the head with a blunt instrument, and

strangled to the extent that blood vessels in her eyes burst. In addition to her head

wounds, she had stab wounds in her chest, abdomen, back, and crotch. She was

stabbed 23 times. The Medical Examiner testified that any one of several of the

wounds would have been fatal, including the blow to the head, the stab wound in the

heart, and asphyxiation from strangulation. The Examiner concluded that, based on

the number, nature and location of her wounds, the victim had been attacked by more

than one person. The Medical Examiner also testified that a wound, as depicted in a

photograph of Brookins' right hand taken on April 11, 1980, was consistent with

having been caused by a knife with handle breaking off while being used in stabbing

a person; that the wound had occurred within 2 weeks prior to the photograph.

Thomas M. Butler (“Butler”) was indicted with the defendants for Conspiracy

in the Second Degree (11 Del.C. § 512). Prior to trial, Butler plead guilty to

3
Manslaughter (11 Del.C. § 632) and the Conspiracy charge. In return, he testified

for the State against both defendants.

Butler testified as follows: On the morning of April 2nd, he and Japhis

Lampkins committed an armed robbery in Newark and separated upon their return

to Wilmington. In the afternoon, he again met Lampkins, this time with Tyrone

Brookins (“Brookins”). Brookins was a drug addict. The three men smoked

marijuana and Brookins and Lampkins injected themselves with cocaine and “crank”

(methamphetamine). Butler was “high” while Lampkins and Brookins were “messed

up.” Knowing that Lampkins and Butler had committed a successful robbery earlier

in the day, Brookins was anxious to “make a sting.” The three decided to go to the

nearby supermarket. There they saw the victim pulling her cart and followed her

home. Butler waited outside while first Brookins, and then Lampkins, went into the

victim's apartment. When Butler heard Lampkins' voice, scuffling, and a woman

moaning, he fled.

Butler's testimony was corroborated in several ways:

An F.B.I. expert in hair comparisons testified that a hair found on the back

door of the victim's apartment and a hair on a tissue found beside the victim were

microscopically similar to Brookins' head hair and pubic hair, respectively. The

expert testified that such dual hair similarities were rare for one individual.

4
 A shoe print lifted from the bloody floor beside the victim was also examined

by an F.B.I. expert. He testified that, although the print lacked clarity and sufficient

detail to support a positive opinion, similarities existed both in the design and size

of the footprint and the “sneaker” Brookins was wearing when he was arrested.

A blood-stained vase found on a chair near the victim was also introduced. A

blood expert testified that the blood on the vase did not match the victim's blood;

that it matched Brookins' blood type in all but one of the blood components. The

examiner testified that although the variant component could indicate that the blood

on the vase was not Brookins', he had never seen known and unknown samples

match in all but one component. He testified that the sample manifesting the variant

component could have been contaminated by the victim's blood; that such a mix or

contamination would have “masked” the Brookins' component.

A police detective testified that, on April 10, 1980, he spoke with Lampkins'

brother, Acey Lampkins, at the latter's request, and that Acey told him the following:

that Acey had spoken with Butler shortly after the murder; that Butler told Acey that

Butler and two others had followed a woman from a supermarket to her home along

Delaware Avenue; that Butler said they knocked on the door and, when the woman

opened it, stabbed her in the face; that his brother, Japhis, related substantially the

same story to him.

5
 Acey later recanted his statement, both to police and at trial. He conceded at

trial, however, that his initial statement was wholly voluntary. He further testified

that, prior to his recantation, he thought about the possibility of his brother receiving

the death penalty if convicted.

Timothy Wright (“Wright”), Japhis Lampkins' nephew, testified that he had

given statements to police on April 11, and April 14, 1980, regarding his knowledge

of Lampkins' involvement in the murder. Wright testified that in the first statement

he denied any knowledge of Lampkins' involvement but that he had not told police

all he knew. In the second statement, Wright admitted to police that Lampkins told

him he had followed an old lady from a supermarket to her house and robbed her. At

trial, however, Wright recanted the statement, testifying that he never had such a

conversation with Lampkins, that he made the statement only because of threats by

the police “to lock [him] up,” and that the statement was based not on his personal

knowledge but on what the police told him regarding Lampkins' involvement.

A neighbor living above the victim's apartment testified that, just before the

police arrived, she heard the apartment building's front door slam and saw a man

running from the building dressed in white hat, blue denim pants, and blue denim

jacket. A witness who had seen Lampkins and Brookins at the scene of the morning

Newark robbery testified that one of the robbers, who matched Lampkins'

6
description, was dressed almost entirely in dark blue and, at one point, put on a white

hat.

So went the State's case.

At trial, both defendants testified in their own defense, each presenting a

separate alibi.

Lampkins admitted committing the morning Newark robbery with Butler, but

said that at the time of the killing he was across town cleaning his car. When the

prosecutor pointed out to him that the car he claimed to have been cleaning was a

rental car he had rented only a day or two earlier, Lampkins testified that sticky

“cherry things” had dropped on the car the night before and he was concerned with

liability for damage to the finish. When the prosecutor asked Lampkins what type of

tree would be dropping anything at the beginning of April, he responded that it was

“an evergreen.” An expert called by the State testified that there were no trees or

plants growing in New Castle County in general, or on the defendant's street in

particular, which would have been producing a sticky substance in early April, 1980.

Brookins claimed that, at the time of the murder, he was shopping in

downtown Wilmington with Debbie Benson (“Benson”), the mother of his children.

At trial, Benson supported Brookins' alibi. In an earlier written statement, however,

she had indicated that Brookins was with her until only 1:00 p.m. on the day of the

7
murder; that he then told her he was going to a poolroom and she did not see him

again until the evening.

Brookins explained that the cut on his hand was caused by falling on a piece

of glass during a handball game with Eric Jones (“Jones”). Jones testified that

although he told defense counsel he could substantiate Brookins' story, he did so

because he had received a threatening phone call.

PROCEDURAL BACKGROUND

On May 29, 1981, Lampkins was convicted of Murder First Degree,

Conspiracy First Degree, Burglary Second Degree and Possession of a Deadly

Weapon During the Commission of a Felony. On June 12, 1981, this Court

sentenced Defendant to life imprisonment without the possibility of probation or

parole, plus fifteen years.2

On July 1, 1981, Defendant appealed his convictions to the Delaware Supreme

Court.3 On August 2, 1983, the Delaware Supreme Court affirmed Defendant’s

convictions, and on August 22, 1983, the Delaware Supreme Court issued its

mandate.4

Thereafter, Defendant filed a Petition for a Writ of Habeas Corpus (“Petition”)

in the United States District Court for the District of Delaware. In the Petition,

2
Docket Item (“D.I.”) 96. Sentence Order.
3
D.I. 100. Notice of Appeal.
4
D.I. 115. Mandate of the Delaware Supreme Court.
8
Defendant claimed his statement to the police was obtained in violation of his rights

pursuant to Miranda v. Arizona;5 this Court erred in denying a motion to sever the

trial from his co-defendant; and this Court should have suppressed physical evidence

which the police recovered from Brookins. The District Court denied Defendant’s

Petition.6

On March 31, 1988, Defendant filed his first Motion for Postconviction

Relief. Defendant argued the State’s use of his custodial interview at trial was

improper because he did not have the benefit of counsel.7 This Court summarily

dismissed Defendant’s Motion.8 On November 14, 1988, the Delaware Supreme

Court affirmed the dismissal of Defendant’s first postconviction motion.9

On October 5, 2010, Defendant filed a second Motion for Postconviction

Relief.10 Defendant argued he should have been afforded a jury instruction regarding

the applicability of 11 Del. C. §§ 271 and 274; he claimed he could not be convicted

based upon inconsistent witness testimony; and he asserted his Due Process rights

were violated by the State’s expert testimony regarding hair and shoeprint analysis.11

5
384 U.S. 436 (1985).
6
See Lampkins v. State, 1988 WL 137209 (Del. 1988), citing Lampkins v. Redman, Civ.A.No.
85-625-JJF (D.Del. June 30, 1986), vacated, No. 86-5469 (3d Cir. Dec. 31, 1986), on remand No.
85-625-JJF (D.Del. Apr. 10, 1987), certif. Prob. Cause denied after remand, No. 87-3289 (3d. Cir.
Aug. 13, 1987).
7
D.I. 118, March 31, 1988 Motion for Postconviction Relief ¶ 2.
8
State v. Lampkins, 1988 WL 97879 (Del. Super. Aug. 31, 1988).
9
Lampkins v. State, 1988 WL 137209 (Del. Nov. 14, 1988).
10
D.I. 144, October 5, 2010 Motion for Postconviction Relief.
11
Id. at 3.
9
Importantly, as it relates to his present postconviction claim, Defendant attached, as

Exhibit A to his Motion, a February 28, 1983 affidavit from Thomas Butler in which

Butler claimed:

Lampkins had no knowledge of the two murders. I lied when I say that
he did. The Wilmington Police Department told me what to say and
how to say it. Without fear I can say that [Lampkins] had no
involvement in the crimes. At this time also I’m willing to testify on
behalf of Japhis Lampkins. And Tyrone Brookins is the guilty party in
the crimes I will testif[y] to that. I just want to do the right thing. 12

On December 22, 2010, this Court summarily dismissed the Motion as

procedurally barred,13 and on February 22, 2012, the Delaware Supreme Court

affirmed the dismissal of Defendant’s second postconviction motion.14

On December 2, 2013, Defendant filed a third Motion for Postconviction

Relief,15 which was amended on December 11, 2015.16 Therein, Defendant

presented several ineffective assistance of counsel claims.17 On August 11, 2016,

12
D.I. 145, October 5, 2010 Memorandum of Law in Support of Movant’s Postconviction Relief
Motion Rule 61, Exhibit A, February 28, 1983 Affidavit of Thomas Butler.
13
State v. Lampkins, 2010 WL 8250847, at *3 (Del. Super. Dec. 22, 2010).
14
Lampkins v. State, 2012 WL 581703, at *1 (Del. Feb. 22, 2012).
15
D.I. 168. Motion for Postconviction Relief.
16
D.I. 181. Amended Motion for Postconviction Relief.
17
Defendant claimed trial counsel “merely went through the motions;” failed to exclude the trial
testimony of Thomas Butler; failed to file a motion for severance from his co-defendant; failed to
“develop a trial defense;” failing to adequately challenge the testimony of the medical examiner
to establish a “clear cause of death” from a multitude of stab wounds; failed to conduct a
“meaningful investigation;” failed to enlist a expert witness on hair and fiber and footprint
impression testimony; failed to insure “accurate briefs were presented;” failed to interview and
procure “essential witnesses” that could have “boasted Defendant’s innocence;” and failed to
“make a motion for judgment of acquittal.” Id. at 5-12.
10
this Court summarily dismissed Defendant’s claims as procedurally barred,18 and

on February 27, 2017, the Delaware Supreme Court affirmed the dismissal of

Defendant’s third postconviction motion.19

THE PARTIES’ CONTENTIONS

On September 23, 2022, Defendant filed a fourth Motion for Postconviction

Relief.20 Defendant acknowledges that this Motion is otherwise procedurally barred

as untimely and repetitive,21 but asserts he possesses new evidence that creates a

strong inference that he is innocent in fact of the acts underlying the charges.22

Specifically, Defendant claims, without providing an affidavit or other evidence, that

Debbie Benson (“Benson”) would testify that before Brookins’ death more than nine

years ago, Brookins told Benson that Butler testified falsely during the trial, and

Brookins exonerated Defendant from culpability for the Dugan homicide.23

According to Defendant, Benson would testify that Brookins felt guilty about not

correcting Butler’s “false testimony,” and “Brookins confided to her that he

18
State v. Lampkins, 2016 WL 4251155, at *3 (Del. Super. Aug. 11, 2016).
19
Lampkins v. State, 2017 WL 772499, at *1 (Del. Feb. 27, 2017).
20
D.I. 204.
21
Id. at 15 (“Petitioner is concededly time barred and procedurally barred under normal
circumstances due to this motion being untimely and successive.”).
22
Id.
23
D.I. 204, Motion for Postconviction Relief at 1. Despite Defendant’s claim as to what Benson
would testify to regarding Brookins’ almost decade-old statements to her, this Court has not
received any evidence from Benson.
11
acknowledged his guilt in the crimes charged and no longer wished to pursue claims

in court to the contrary, thereby consigning himself to a life in prison.”24

Defendant also claims, without providing an affidavit or other evidence, that,

at the time of the Dugan homicide, he was married but also had a girlfriend – Alfreida

Campbell (“Campbell”). He now claims, for the first time, more than forty years

after his conviction, that he was with Campbell at the time Dugan was murdered.

He explains that he disclosed this potential alibi to trial counsel, but he elected not

to raise this alibi because it would have “effectively ended his marriage,” and he

claims Campbell is now willing to testify in support of this alibi.25

The State asserts Defendant’s fourth Motion for Postconviction Relief is

procedurally barred pursuant to Rule 61(i)(1), (2) and (4).26 The State also contends

that Defendant has failed to plead with particularity the existence of newly

discovered evidence which creates a strong inference he is innocent in fact of the

acts underlying the charges for which he was convicted.27

24
Id. On November 21, 2013, Brookins was reported deceased. D.I. 198, State v. Brookins, Case
ID. No. 80001074DI.
25
D.I. 204, September 23, 2022 Motion for Postconviction Relief at 28.
26
D.I. 210, March 3, 2023, State’s Response to Defendant’s Pro Se Fourth Motion for
Postconviction Relief at 22-24.
27
Id. at 25.
12
DISCUSSION

Superior Court Criminal Rule 61 provides an individual with a limited

opportunity to seek postconviction relief.28 The purpose of postconviction relief is

“to correct errors in the trial process, not to allow defendants unlimited opportunities

to relitigate their convictions.”29 Before considering the merits of any

postconviction relief motion, this Court must first apply Rule 61’s procedural bars.

A motion for postconviction relief can be procedurally barred as untimely, repetitive,

formerly adjudicated, or procedurally defaulted.30 The bars to relief do not apply to

claims that this Court lacked jurisdiction, or a claim that is pled with particularity

that new evidence exists that creates a strong inference of actual innocence.31

A. Procedural Bars

Defendant concedes that his Motion is both untimely and repetitive,32 but he

claims to overcome the procedural bars by identifying “with particularity new

evidence that creates a strong inference that he is actually innocent in fact of the acts

underlying the charges.”33 Despite Defendant’s concession regarding the

28
State v. Washington, 2021 WL 5232259, at *4 (Del. Super. Nov. 9, 2021), aff’d, Washington v.
State, 275 A.3d 1258 (Del. 2022).
29
Ploof v. State, 75 A.3d 811, 820 (Del. 2013).
30
Washington, 2021 WL 5232259, at *4.
31
See Super. Ct. Crim. R. 61(d)(2).
32
D.I. 204, Motion for Postconviction Relief at 15 (“Petitioner is concededly time-barred and
procedurally barred under normal circumstances due to his motion being untimely and
successive.”)
33
Id. (quoting Purnell v. State, 254 A.3d 1053, 1095 (Del. 2021) (citing Super. Ct. Crim. R.
61(d)(2)(i)).
13
procedural bars, this Court will review whether Defendant satisfied the procedural

requirements of Superior Court Criminal Rule 61 before considering the merit of his

underlying claim.34

Rule 61(i)(1) prohibits the Court from considering a motion for

postconviction relief filed more than one year after the judgment of conviction is

final.35 Here, Defendant’s Motion was filed more than thirty-nine years after the

judgment of conviction became final. Moreover, Defendant has failed to allege any

facts implicating the exception to the Rule 61(i)(1) procedural bar.36 Defendant’s

claim is procedurally barred as untimely filed.

Rule 61(i)(2) prohibits the filing of repetitive motions for postconviction

relief, unless: under Rule 61(d)(2)(i) and (ii), Defendant pleads with particularity

that new evidence exists that creates a strong inference of actual innocence, or that

a new rule of constitutional law, made retroactive to cases on collateral review,

34
Taylor v. State, 32 A.3d 374, 388 (Del. 2011) (quoting Shelton v. State, 744 A.2d 465, 474 (Del.
1999)). This Court will apply the post-June 4, 2014 version of Superior Court Criminal Rule 61
to Defendant’s claims. See State v. Taylor, 2018 WL 3199537, at *6 (Del. Super. June 28, 2018)
(“In sum, the Delaware Supreme Court has held amended Rule 61 applies to all motions filed after
June 4, 2014.”).
35
Super. Ct. Crim. R. 61(i)(1). A judgment of conviction is final “when the Supreme Court issues
a mandate or order finally determining the case on direct review.” State v. Drake, 2008 WL
5264880, at *1 (Del. Super. Dec. 15, 2008).
36
Super. Ct. Crim. R. 61(i)(1). To avoid the procedural bar, Defendant can also “allege facts
supporting a claim that there exists a retroactively applicable right that is newly recognized after
the judgment of conviction was final, more than one year after the right was first recognized by
the Delaware Supreme Court or the U.S. Supreme Court.” Id.
14
applies to the movant’s case.37 As this is Defendant’s fourth postconviction Motion,

it is procedurally barred as repetitive. And, as is discussed supra, Defendant has

failed to satisfy Rule 61(d)(2).

Rule 61(i)(4) considers formerly adjudicated postconviction claims. It

provides that “[a]ny ground for relief that was formerly adjudicated, whether in the

proceedings leading to the judgment of conviction, in an appeal, in a postconviction

proceeding, or in a federal habeas corpus proceeding, is thereafter barred.”38

The State argues Defendant’s claim was previously adjudicated. Specifically,

on October 10, 2010, Defendant filed a second Motion for Postconviction Relief,

wherein he claimed he could not be convicted based upon the inconsistent testimony

of two state’s witnesses. Defendant argued, in reliance on co-defendant Butler’s

February 28, 1983 affidavit, which he again relies upon here, that “no rational juror

could conclude beyond a reasonable doubt that Mr. Lampkins was involved [in the

murder of the victim] or what, if any, role he played.”39

In 2010, this Court rejected Lampkins’ inconsistent testimony argument,

specifically noting that co-defendant Butler’s 1983 affidavit recanted his trial

37
Super. Ct. Crim. R. 61(i)(2). Defendant has not availed himself of the exception noted in Rule
61(d)(2)(ii).
38
Super. Ct. Crim. R. 61(i)(4).
39
Lampkins, 2010 WL 8250847, at *5 (Del. Super. Dec. 22, 2010). On April 6, 2011, Upon
completing a de novo review of the record, a Superior Court judge adopted the Superior Court
Commissioner’s Report and Recommendation. State v. Lampkins, ID No. 80001076DI, Order
(Del. Super. April 6, 2011), aff’d Lampkins v. State, 2012 WL 581703 (Del. Feb. 22, 2012).
15
testimony, exculpated the Defendant, and claimed Brookins committed the Dugan

homicide.40 This Court opined:

The totality of the State’s case did not rest on the “inconsistent
testimony of two state’s witnesses” but encompassed much more, as
discussed above and set forth more fully in the Delaware Supreme
Court’s opinion on Lampkins’ direct appeal. There was substantial and
competent evidence against Lampkins to support his convictions.41

Defendant’s claim – that Butler’s incriminating trial testimony was false as to

Defendant’s involvement in the Dugan homicide, was previously adjudicated in

2010 when this Court considered Defendant’s second postconviction relief motion.

It makes little difference if the source of the information was Butler’s 1983 affidavit,

or Benson, who claims Brookins told her almost a decade ago that Butler’s trial

testimony was false.42 At best, Benson’s statement from Brookins is cumulative

evidence of Butler’s 1983 affidavit. Benson’s belated claim that Brookins told her

Butler’s trial testimony was false is just as suspect as Butler’s 1983 affidavit was in

Defendant’s 2010 postconviction motion. Defendant is not entitled to have his claim

that Butler testified falsely re-examined in a subsequent postconviction motion

because it has been “refined or restated.”43 As this Court held in State v. Clay, when

40
Contrary to Butler’s incriminating testimony as a State’s witness as to Defendant, Butler later
claimed Lampkins was not involved in the murder of Mary Dugan. Butler’s affidavit provided:
41
Lampkins, 2010 WL 8250847, at *5 (citing Lampkins, 465 A.2d at 789-95).
42
Brookins would have made this statement to Benson more than thirty years after his
conviction.
43
State v. Clay, 2022 WL 893744, at *2 (Del. Super. Mar. 25, 2022), aff’d Clay v. State, 2022
WL 4295417 (Del. Sept. 16, 2022).
16
a postconviction claim has been previously adjudicated “in a postconviction

proceeding, it cannot constitute newly discovered evidence.”44 As a result, pursuant

to Rule 61(i)(4), Defendant’s Motion is procedurally barred and subject to summary

dismissal.

Assuming for argument’s sake that Defendant’s claim was not subject the

procedural bars pursuant to Rule 61(i)(1), (2) and (4), it nonetheless fails. Under

Rule 61(i)(2) and Rule 61(i)(5), a defendant may overcome applicability of the

procedural bars if he satisfies Rule 61(d)(2)(i): a defendant must “plead with

particularity that new evidence exists that creates a strong inference that movant is

actually innocent in fact of the acts underlying the charges of which he was

convicted.”45

B. New Evidence46

In the context of a motion for postconviction relief, “new” evidence is

evidence discovered after trial which could not have been discovered before trial

with due diligence.47 To establish a valid claim of newly discovered evidence, “the

new evidence must show that it is ‘more likely than not that no reasonable juror

44
Clay, 2022 WL 893744, at *3.
45
Super. Ct. Crim. R. 61(d)(2)(i).
46
Defendant has not provided the Court any evidence directly from Benson, the declarant upon
which his postconviction claim is premised.
47
Lloyd v. State, 534 A.2d 1262, 1267 (Del. 1987).
17
would have convicted’ the defendant.”48 A defendant “shoulders a heavy burden in

establishing that the existence of ‘new evidence’ creates a strong inference of his

actual innocence,”49 and a defendant “cannot successfully navigate the ‘actual

innocence’ standard with evidence that is ‘merely cumulative or impeaching.’ Thus,

any new evidence ‘that goes only to the weight or credibility of that which was

presented to the [factfinder] is almost never adequate to meet the demanding bar for

being granted a new trial.’”50

Moreover, evidence provided by declarants or witnesses who testified at trial

or were known to the parties before trial does not constitute newly discovered

evidence.51 And, this Court “may consider how the timing of the submission [of

actual innocence] and the likely credibility of the affiant [] bear on the probable

reliability of that evidence.”52

Recantation evidence, upon which Defendant relies, is “properly viewed with

great suspicion. It upsets society’s interest in the finality of convictions, is very often

unreliable and given for suspect motives, and most often serves to only impeach

cumulative evidence rather than to undermine confidence in the accuracy of the

48
State v. White, 2018 WL 6131897, at *4 (Del. Super. Nov. 21, 2018), aff’d White v. State,
2019 WL 1529654 (Del. Apr. 8, 2019).
49
State v. Madison, 2022 WL 3011377 (Del. Super. July 29, 2022), aff’d, Madison v. State, 2022
WL 17982946 (Del. Dec. 29, 2022).
50
Id. (citing Purnell v. State, 254 A.3d 1053, 1100 (Del. 2021)).
51
State v. Riddock, 2022 WL 17820366, at *5 (Del. Super. Dec. 19, 2022).
52
State v. Sykes, 2017 WL 6205776, at *5 (Del. Super. Dec. 7, 2017) (citing Schlup v. Delo, 513
U.S. 298, 324 (1995)), aff’d Sykes v. State, 2018 WL 4932731 (Del. Oct. 10, 2018).
18
conviction.”53 When recantation evidence “merely impeaches [a witness’] trial

testimony, - [it] does not constitute new evidence that proves actual innocence.”54

1. Brookins’ Statement to Benson

The Defendant now resubmits Butler’s 1983 affidavit, which he has possessed

for at least twelve years, as “new” evidence. Coupled with the 1983 Butler affidavit,

the Defendant offers as additional/supporting evidence a statement allegedly made

by Brookins to Brookins’ paramour, Benson, almost a decade ago, in which

Brookins allegedly told Benson that Butler lied when Butler testified at trial. It is

these two items taken together, the 1983 Butler affidavit, and the Brookins statement

as relayed by Benson, which together constitute Defendant’s newly discovered

evidence.

The 1983 Butler affidavit is not new evidence, as the Defendant has possessed

it since at least 2010, and presented it to this Court to support a postconviction claim

in his second postconviction motion. As to Brookins’ alleged statement to Benson,

it is not new evidence, for several reasons. First, both Brookins and Benson were

witnesses in the 1981 trial, and they both presented an alibi that the jury rejected –

that Brookins was with Benson shopping in Wilmington at the time of the Dugan

53
Dobbert v. Wainwright, 468 U.S. 1231, 1233-34 (1984). Delaware Courts also view recantation
evidence with suspicion. State v. Washington, 2021 WL 5232259, at *6 (Del. Super. Nov. 9,
2021), aff’d Washington v. State, 2022 WL 1041267 (Del. Apr. 7, 2022).
54
Washington, 2021 WL 5232259, at *6 (citing Taylor v. State, 180 A.3d 41 (Del. 2018)), Downes
v. State, 771 A.2d 289, 291 (Del. 2001).
19
homicide. Any post-trial statement by Brookins which is contrary to or inconsistent

with his original trial testimony constitutes a revised version of Brookins’ prior trial

testimony. And, as the State points out, until his death in 2013, Brookins actively

appealed his conviction, filing numerous postconviction motions in both State and

Federal Court.55 In all of Brookins’ postconviction filings, Brookins never expressed

culpability for the Dugan homicide, and he did not exculpate the Defendant, making

his alleged statement to Benson even more suspect and incredible. Brookins’

statement to Benson is cumulative evidence of Butler’s 1983 affidavit, impeaches

Brookins’ trial testimony, and is not new evidence.56

Additionally, Benson, as the source of the Brookins’s revised statement,

would be impeaching her own 1981 alibi testimony. At trial, Benson supported

Brookins’ alibi by testifying she and Brookins were shopping in Wilmington at the

time Dugan was murdered.57 Assuming Brookins’ statement incriminating himself

and exculpating the Defendant is true, Benson’s 1981 alibi testimony was false.58

Benson’s expected testimony is neither new nor credible.

55
See Brookins v. State, 1986 WL 16796 (Del. May 1, 1986) (affirming denial of Motion for
Postconviction Relief); Brookins v. State, 1999 WL 1090567 (Del. Oct. 14, 1999) (affirming denial
of Motion for Postconviction Relief); Brookins v. Redman, Civ. Act. No. 84-318-WKS (D.Del.
Nov. 26, 1984) (denial of federal habeas relief); Brookins v. Redman, Civ. Act. No. 86-226-JRR
(D.Del. Sept. 10, 1986) (denial of federal habeas relief); Brookins v. Redman, Civ. Act. No. 87-
434-JLL (D.Del. Oct. 5, 1987) (denial of federal habeas relief), Brookins v. Phelps, 2010 WL
3909326 (D.Del. Sept. 30, 2010) (denial of federal habeas relief).
56
Riddick, 2022 WL 17820366, at *5.
57
Id. at 70:16 – 72:22.
58
Id. at 66:18 – 67:1.
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 The record before this Court does not support Defendant’s postconviction

claim of newly discovered evidence which creates a strong inference that he is

actually innocent in fact of the acts underlying the charged offenses. As none of the

evidence upon which Defendant relies constitutes “new” evidence which should

have been discovered before trial with due diligence, Defendant cannot meet the

strict pleading requirements of Rule 61(i)(2)(i) or Rule 61(d)(2)(i)-(ii), and his

Motion is procedurally barred.

2. Alfreida Campbell Alibi

Finally, Defendant claims that Alfreida Campbell (“Campbell”) was his

girlfriend at the time of the Dugan homicide. He claims he informed trial counsel

he was “hesitant at the time to publicize the fact that he had a girlfriend and was with

her at the time of Dugan’s death because [Defendant] was married. Using Campbell

as an alibi would have effectively ended his marriage. At any rate, Campbell is

willing to come forward and act as an alibi witness for Petitioner if given an

opportunity to do so.”59 This purported alibi, which is wholly different than the alibi

Defendant presented at trial in 1981, was known to Defendant and his counsel at

trial, but Lampkins chose not to present it. This claim of a second, independent alibi

is procedurally barred, and it is not “evidence discovered since the trial [which]

59
D.I. 204, Motion for Postconviction Relief at 28. Defendant has again failed to provide the
Court any evidence from Campbell which supports Defendant’s alibi claim.
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could not have been discovered by the exercise of due diligence,” nor is it newly

discovered evidence that creates a strong inference of Defendant’s actual

innocence.60 In fact, it is an alibi that impeaches Defendant’s trial testimony (which

was an entirely different alibi).

CONCLUSION

Defendant’s postconviction claim is procedurally barred pursuant to Rules

61(i)(1), (2), and (4), and Defendant’s claim of “newly” discovered evidence

pursuant to Rule 61(d)(2)(i) is not supported by the record. Defendant has failed to

establish that no reasonable jury would have found him guilty beyond a reasonable

doubt. Moreover, Defendant’s alibi claim that he was with Alfreida Campbell at the

time of the homicide is neither new nor newly discovered evidence, and is

procedurally barred.

60
Washington, 2021 WL 5232259, at *6 (citing Taylor v. State, 180 A.3d 41 (Del. 2018)).
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 For all of the aforestated reasons, Defendant’s Motion for Postconviction

Relief should be SUMMARILY DISMISSED as procedurally barred. Defendant’s

Motion for an Evidentiary Hearing is MOOT.

IT IS SO RECOMMENDED.

/S/Martin B. O’Connor
Commissioner Martin B. O’Connor
oc: Prothonotary

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