IN THE SUPREME COURT OF THE STATE OF DELAWARE
RUSSELL GRIMES, § § Defendant Below, § No. 494, 2019 Appellant, § § Court Below: Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1108023033A (K) § Plaintiff Below, § Appellee. §
Submitted: June 12, 2020 Decided: July 21, 2020
Before VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices.
ORDER
Upon consideration of the briefs of the parties and the record below, it appears
to the Court that:
(1) The defendant below-appellant, Russell Grimes, has appealed the
Superior Court’s denial of his first motion for postconviction relief under Superior
Court Criminal Rule 61. For the reasons set forth below, we affirm the Superior
Court’s judgment.
(2) In May 2013, a Superior Court jury found Grimes, who chose to
represent himself, guilty of first-degree robbery, second-degree conspiracy,
possession of a firearm during the commission of a felony, possession of a firearm
or ammunition by a person prohibited, and five counts of second-degree reckless endangering as lesser-included offenses of attempted first-degree murder. The jury
found Grimes not guilty of first-degree conspiracy and six counts of aggravated
menacing. The jury found Grimes’s co-defendant, William S. Sells, guilty of
multiple crimes, including first-degree robbery. The charges arose from a bank
robbery and subsequent car chase with police in which Grimes was the driver of the
getaway car. On appeal, this Court held that there were errors in the jury-selection
process and reversed and remanded both cases for new trials.1
(3) After a new trial, a Superior Court jury found Grimes guilty of first-
degree robbery, second-degree conspiracy, possession of a firearm during
commission of a felony, possession of a firearm or ammunition by a person
prohibited, and five counts of second-degree reckless endangering. On appeal,
Grimes and amicus curiae, as requested by this Court, argued that retrying Grimes
for first-degree robbery after he was acquitted of the lesser-included offense of
aggravated menacing (the same victim—a bank manager—was named in both
counts of the amended indictment) in the first trial violated the Double Jeopardy
Clause. This Court held that the Double Jeopardy Clause did not prevent the State
from retrying Grimes for first-degree robbery after he was found guilty of first-
1 Grimes v. State, 2015 WL 2231801 (Del. May 12, 2015); Sells v. State, 109 A.3d 568 (Del. 2015). Sells subsequently pleaded guilty to first-degree robbery and other charges. 2 degree robbery and acquitted of the lesser-included offense of aggravated menacing
in the first trial.2
(4) On August 3, 2018, Grimes filed a timely motion for postconviction
relief. He argued that the indictment was illegally amended during the first trial and
that this illegal amendment violated the Double Jeopardy Clause and his right to a
fair trial. He later amended the motion to add a claim that the illegal amendment of
the indictment divested the Superior Court of subject matter jurisdiction.
(5) A Superior Court Commissioner recommended denial of Grimes’s
postconviction motion. The Commissioner concluded that the double-jeopardy
claim was previously adjudicated on Grimes’s second appeal and was therefore
procedurally barred by Rule 61(i)(4). As to Grimes’s remaining claims concerning
the amendment of the indictment during the first trial, the Commissioner found those
claims barred by Rule 61(i)(3) because Grimes did not previously challenge the
amendment of the indictment, did not establish cause for his failure to do so, and did
not establish prejudice. The Commissioner further held that amendment of the
indictment did not divest the Superior Court of jurisdiction, and that amendment of
the indictment was not illegal. After a de novo review of the Commissioner’s report
and recommendation, the Superior Court denied Grimes’s motion for postconviction
relief. This appeal followed.
2 Grimes v. State, 188 A.3d 824 (Del. 2018). 3 (6) We review the Superior Court’s denial of postconviction relief for
abuse of discretion, although we review questions of law de novo.3 Both the
Superior Court and this Court on appeal first must consider the procedural
requirements of Rule 61 before considering the merits of any underlying
postconviction claims.4 On appeal, Grimes argues that the substantive amendment
of the indictment during his first trial divested the Superior Court of jurisdiction over
the first-degree robbery charge and violated double-jeopardy principles.
(7) The indictment originally named a bank teller as the victim of the first-
degree robbery charge against Grimes and Sells. Other bank employees, including
the bank manager, were named as victims of the aggravated menacing charges. At
the beginning of the first trial, the manager testified that, as directed by the armed
robber, she assisted with the emptying of the teller drawers. The teller originally
named in the first-degree robbery charge testified that she was present when the
armed robber emptied the teller drawers.
(8) The State moved to amend the indictment under Superior Court
Criminal Rule 7(e) to name the bank manager instead of the teller as the victim in
the first-degree robbery count. Grimes, whose defense was that he did not commit
the robbery and was forced to act as the getaway driver, objected to the amendment
3 Claudio v. State, 958 A.2d 846, 850 (Del. 2008). 4 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 4 on the basis that he only asked the teller, not the bank manager, if she saw anyone
help the robber flee.5 He also requested a mistrial. Sells also objected to the
amendment. The Superior Court held that the amendment was permissible under
Rule 7(e) and denied Grimes’s motion for a mistrial. Neither Grimes nor Sells
argued that the Superior Court erred in amending the indictment in their first appeals.
Grimes also did not make this argument during his second trial6 and second appeal.
(9) As the Superior Court recognized, Grimes’s claims regarding the
amendment of the indictment are barred by Rule 61(i)(3) because he did not raise
those claims in his first appeal, second trial, or second appeal. Rule 61(i)(3) bars
claims for postconviction relief that were not raised during the proceedings leading
to a judgment of conviction, unless the movant can show cause for the procedural
default and prejudice from a violation of the movant’s rights. Grimes does not
attempt to establish cause for the procedural default or prejudice.
(10) Grimes’s double-jeopardy claim is barred by Rule 61(i)(4), which bars
reconsideration of claims that were previously adjudicated. This Court previously
addressed, and rejected, Grimes’s argument that double-jeopardy principles
prevented the State from retrying him for first-degree robbery after he was acquitted
5 Grimes asked both witnesses if the robber was by himself in the bank, and they answered yes. 6 The bank manager testified at Grimes’s second trial, but the teller originally identified in the first- degree robbery count of the indictment did not.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
RUSSELL GRIMES, § § Defendant Below, § No. 494, 2019 Appellant, § § Court Below: Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1108023033A (K) § Plaintiff Below, § Appellee. §
Submitted: June 12, 2020 Decided: July 21, 2020
Before VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices.
ORDER
Upon consideration of the briefs of the parties and the record below, it appears
to the Court that:
(1) The defendant below-appellant, Russell Grimes, has appealed the
Superior Court’s denial of his first motion for postconviction relief under Superior
Court Criminal Rule 61. For the reasons set forth below, we affirm the Superior
Court’s judgment.
(2) In May 2013, a Superior Court jury found Grimes, who chose to
represent himself, guilty of first-degree robbery, second-degree conspiracy,
possession of a firearm during the commission of a felony, possession of a firearm
or ammunition by a person prohibited, and five counts of second-degree reckless endangering as lesser-included offenses of attempted first-degree murder. The jury
found Grimes not guilty of first-degree conspiracy and six counts of aggravated
menacing. The jury found Grimes’s co-defendant, William S. Sells, guilty of
multiple crimes, including first-degree robbery. The charges arose from a bank
robbery and subsequent car chase with police in which Grimes was the driver of the
getaway car. On appeal, this Court held that there were errors in the jury-selection
process and reversed and remanded both cases for new trials.1
(3) After a new trial, a Superior Court jury found Grimes guilty of first-
degree robbery, second-degree conspiracy, possession of a firearm during
commission of a felony, possession of a firearm or ammunition by a person
prohibited, and five counts of second-degree reckless endangering. On appeal,
Grimes and amicus curiae, as requested by this Court, argued that retrying Grimes
for first-degree robbery after he was acquitted of the lesser-included offense of
aggravated menacing (the same victim—a bank manager—was named in both
counts of the amended indictment) in the first trial violated the Double Jeopardy
Clause. This Court held that the Double Jeopardy Clause did not prevent the State
from retrying Grimes for first-degree robbery after he was found guilty of first-
1 Grimes v. State, 2015 WL 2231801 (Del. May 12, 2015); Sells v. State, 109 A.3d 568 (Del. 2015). Sells subsequently pleaded guilty to first-degree robbery and other charges. 2 degree robbery and acquitted of the lesser-included offense of aggravated menacing
in the first trial.2
(4) On August 3, 2018, Grimes filed a timely motion for postconviction
relief. He argued that the indictment was illegally amended during the first trial and
that this illegal amendment violated the Double Jeopardy Clause and his right to a
fair trial. He later amended the motion to add a claim that the illegal amendment of
the indictment divested the Superior Court of subject matter jurisdiction.
(5) A Superior Court Commissioner recommended denial of Grimes’s
postconviction motion. The Commissioner concluded that the double-jeopardy
claim was previously adjudicated on Grimes’s second appeal and was therefore
procedurally barred by Rule 61(i)(4). As to Grimes’s remaining claims concerning
the amendment of the indictment during the first trial, the Commissioner found those
claims barred by Rule 61(i)(3) because Grimes did not previously challenge the
amendment of the indictment, did not establish cause for his failure to do so, and did
not establish prejudice. The Commissioner further held that amendment of the
indictment did not divest the Superior Court of jurisdiction, and that amendment of
the indictment was not illegal. After a de novo review of the Commissioner’s report
and recommendation, the Superior Court denied Grimes’s motion for postconviction
relief. This appeal followed.
2 Grimes v. State, 188 A.3d 824 (Del. 2018). 3 (6) We review the Superior Court’s denial of postconviction relief for
abuse of discretion, although we review questions of law de novo.3 Both the
Superior Court and this Court on appeal first must consider the procedural
requirements of Rule 61 before considering the merits of any underlying
postconviction claims.4 On appeal, Grimes argues that the substantive amendment
of the indictment during his first trial divested the Superior Court of jurisdiction over
the first-degree robbery charge and violated double-jeopardy principles.
(7) The indictment originally named a bank teller as the victim of the first-
degree robbery charge against Grimes and Sells. Other bank employees, including
the bank manager, were named as victims of the aggravated menacing charges. At
the beginning of the first trial, the manager testified that, as directed by the armed
robber, she assisted with the emptying of the teller drawers. The teller originally
named in the first-degree robbery charge testified that she was present when the
armed robber emptied the teller drawers.
(8) The State moved to amend the indictment under Superior Court
Criminal Rule 7(e) to name the bank manager instead of the teller as the victim in
the first-degree robbery count. Grimes, whose defense was that he did not commit
the robbery and was forced to act as the getaway driver, objected to the amendment
3 Claudio v. State, 958 A.2d 846, 850 (Del. 2008). 4 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 4 on the basis that he only asked the teller, not the bank manager, if she saw anyone
help the robber flee.5 He also requested a mistrial. Sells also objected to the
amendment. The Superior Court held that the amendment was permissible under
Rule 7(e) and denied Grimes’s motion for a mistrial. Neither Grimes nor Sells
argued that the Superior Court erred in amending the indictment in their first appeals.
Grimes also did not make this argument during his second trial6 and second appeal.
(9) As the Superior Court recognized, Grimes’s claims regarding the
amendment of the indictment are barred by Rule 61(i)(3) because he did not raise
those claims in his first appeal, second trial, or second appeal. Rule 61(i)(3) bars
claims for postconviction relief that were not raised during the proceedings leading
to a judgment of conviction, unless the movant can show cause for the procedural
default and prejudice from a violation of the movant’s rights. Grimes does not
attempt to establish cause for the procedural default or prejudice.
(10) Grimes’s double-jeopardy claim is barred by Rule 61(i)(4), which bars
reconsideration of claims that were previously adjudicated. This Court previously
addressed, and rejected, Grimes’s argument that double-jeopardy principles
prevented the State from retrying him for first-degree robbery after he was acquitted
5 Grimes asked both witnesses if the robber was by himself in the bank, and they answered yes. 6 The bank manager testified at Grimes’s second trial, but the teller originally identified in the first- degree robbery count of the indictment did not. Grimes had the opportunity to cross-examine the bank manager, but did not ask her any questions during the second trial. 5 of the lesser-included offense of aggravated menacing in his first trial.7 Grimes now
repackages that claim to argue that amendment of the indictment violated double-
jeopardy principles because it resulted in the same person being named the victim of
the first-degree robbery charge as well as the lesser included offense of aggravated
menacing. A defendant cannot obtain re-examination of a previously adjudicated
claim by refining or restating that claim as Grimes does here.8
(11) To overcome these procedural bars, Grimes appears to rely upon Rule
61(i)(5), which provides that the procedural bars do not apply to a claim that the trial
court lacked jurisdiction.9 Grimes argues that the improper amendment of the
indictment divested the Superior Court of jurisdiction. This claim is without merit.
(12) “Under Delaware law, the Superior Court may amend an indictment at
any time prior to verdict as long as ‘no additional or different offense is charged and
if substantial rights of the defendant are not prejudiced.’” 10 The Superior Court
concluded that changing the name of the robbery victim from the teller originally
named in the indictment to the bank manager was permissible because it did not
7 See supra n.2. 8 Skinner v. State, 607 A.2d 1170, 1773 (Del. 1992). 9 Rule 61(i)(5) also provides that the procedural bars do not apply to a claim that satisfies 61(d)(2)(i) (new evidence that creates a strong inference of actual innocence) or (d)(2)(ii) (a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or this Court, applies to the movant’s case and renders the conviction invalid), but Grimes does not invoke these provisions. 10 Owens v. State, 919 A.2d 541, 545-46 (Del. 2006) (quoting Super. Ct. Crim. R. 7(e)). 6 result in additional or different offenses charged and that Grimes’s substantial rights
were not prejudiced. This Court upheld a similar amendment in Coffield v. State.11
(13) In Coffield, the Superior Court permitted amendment of the indictment
to change the name of the first-degree robbery victim from a convenience store
employee who was forced to lie on the floor at gunpoint to the convenience store
employee who was forced to hand over the money to the robber. This Court held
that “where no other prejudice to the defendant exists, the name of the alleged human
victim is not an essential element of the crime of Robbery First Degree and the
amendment of that portion of the indictment does not violate an individual’s right
under the Delaware Constitution to be charged for that felony by a grand jury
indictment.”12 The Court also concluded that the defendant was not prejudiced by
the amendment because both indictments put him on notice that he was charged with
robbing an individual at a convenience store on a particular day and that the defense
was aware that the originally named victim and newly named victim were both
present at the time of the crime and could be called as witnesses.
11 794 A.2d 588 (Del. 2002). See also Cuffee v. State, 2014 WL 5254614, at *3 (Del. Oct. 14, 2014) (affirming the Superior Court’s amendment of indictment that changed the name of the victim of the theft count). 12 Coffield, 794 A.2d at 593. 7 (14) As in Coffield, the amendment of the indictment in this case did not
result in Grimes being charged with different or additional offenses.13 Nor was he
prejudiced by the amendment. Both the bank teller and bank manager were named
as victims of the crimes in the bank in the original indictment so Grimes knew they
were both witnesses to the robbery. Grimes elicited testimony from both witnesses
in the first trial that the robber acted by himself in the bank, which was favorable to
his defense that he did not participate in the bank robbery. In the second trial, he did
not call the teller as a witness or try to obtain any testimony from the bank manager.
Changing the name of the robbery victim did not prejudice Grimes’s defense. The
Superior Court did not err in permitting amendment of the indictment, and was not
divested of jurisdiction.14 Nor did the Superior Court err in finding that Grimes’s
postconviction claims were procedurally barred under Rule 61 and denying his
motion for postconviction relief.
13 This is unlike the case that Grimes relies upon—U.S. v. Williams, 412 F.2d 625 (3d Cir. 1969)— in which the district court’s amendment of the indictment changed the offense that the defendant was charged with from illegal possession of a firearm not registered under the National Firearms Act to illegal possession of a firearm for which no tax been paid. Because the amendment was substantive, the Third Circuit concluded that the district court lost jurisdiction to impose any penalty in the absence of a grand jury indictment. Williams, 412 F.2d at 628. 14 The Superior Court had jurisdiction over all of the felonies, including first-degree robbery, that Grimes was charged with. Del. Const. art. IV, § 7; 10 Del. C. § 2701(c); 11 Del. C. § 541. 8 NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT: /s/ Gary F. Traynor Justice