State v. Perkins
Opinion
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) v. ) ID # 1507018423A & B ) GARY PERKINS, ) ) Defendant. )
MEMORANDUM OPINION
Submitted: August 15, 20231 Decided: November 8, 2023
Upon Consideration of the Commissioner’s Report and Recommendation on Defendant’s Motion for Postconviction Relief, ADOPTED
Upon Consideration of Defendant’s Motion for Postconviction Relief, DENIED
Upon Consideration of Rule 61 Counsel’s Motion to Withdraw, GRANTED
Upon Consideration of Defendant’s Motion to Substitute Rule 61 Counsel, DENIED AS MOOT
Carolyn S. Hake, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State
Patrick J. Collins, Esquire, and Kimberly A. Price, Esquire, Collins & Associates, Wilmington, Delaware, Postconviction Counsel for Defendant Gary Perkins
Anthony A. Figliola, Jr., Esquire, Greto Law, 715 N. Tatnall St., Wilmington, Delaware, Trial Counsel for Defendant Gary Perkins
JURDEN, P.J.
1 The matter was reassigned by the President Judge to herself on August 15, 2023. TABLE OF CONTENTS
I. INTRODUCTION ..............................................................................................1 II. BACKGROUND AND PROCEDURAL HISTORY ........................................2 A. The Evidence Presented at Trial ......................................................................3 i. The 911 call ................................................................................................3 ii. Video evidence ............................................................................................4 iii. Corporal Vice’s observations .....................................................................5 iv. DNA, forensic, and blood spatter evidence ................................................6 v. Perkins’ statements to police ......................................................................7 vi. Underwood’s interview testimony ..............................................................8 vii. Underwood’s trial testimony ......................................................................9 B. Postconviction Relief Procedural History .......................................................9 C. Perkins’ Rule 61 Claims ................................................................................13 D. Commissioner’s Characterization of Perkins’ Rule 61 Claims .....................15 E. Perkins’ Objections to the Commissioner’s Report ......................................16 III. STANDARDS OF REVIEW ............................................................................18 A. Rule 61: Procedural Bars to Relief ................................................................18 B. Rule 61: Ineffective Assistance of Counsel...................................................20 C. Rule 61 Counsel’s Motion to Withdraw ........................................................22 IV. DISCUSSION ...................................................................................................22 B. Perkins’ Objections to the Commissioner’s “Relevant Facts” are Without Merit .....................................................................................................................23 i. The green grocery bag..............................................................................24 ii. Underwood’s testimony ............................................................................24 iii. Arresting officer’s knowledge ..................................................................26 iv. Perkins’ DNA on the McDonald’s cup straw ...........................................27 C. Ineffective Assistance of Counsel Claims .....................................................27 i. Ground One: Trial Counsel provided Perkins with his chosen defense ..28 ii. Ground Two: Trial Counsel’s communications were not deficient .........31
ii iii. Ground Three: Perjury First Degree; and Ground Four: “Prosecutorial Misconduct” ......................................................................................................32 iv. Ground Five: “The Use of False Evidence” ............................................36 1. Trial Counsel was not unreasonable when deciding not to test some of Perkins’ clothing for DNA ............................................................................36 2. Trial Counsel was not deficient by failing to obtain a voice expert .....38 3. There was no suppression issue at the time of the arrest ......................40 D. Rule 61 Counsel’s Motion to Withdraw ........................................................41 E. Perkins’ Motion to Substitute Rule 61 Counsel ............................................42 V. CONCLUSION .................................................................................................43
iii I. INTRODUCTION
On October 26, 2017, Defendant Gary Perkins (“Perkins”) was found guilty
by a jury of Murder First Degree and Possession of a Deadly Weapon During the
Commission of a Felony for the fatal stabbing of his girlfriend, Jamie Murphy
(“Murphy”).2 He now moves for Postconviction Relief under Superior Court
Criminal Rule 61 (“Rule 61 Motion”).3 This Memorandum Opinion addresses his
Rule 61 Motion, Rule 61 Counsel’s Motion to Withdrawal,4 and Defendant’s Motion
for Substitute Rule 61 Counsel,5 encompassing all outstanding motions. For the
reasons set forth below, the Commissioner’s Report and Recommendation
(“Commissioner’s Report”) is ADOPTED, Defendant’s Motion for Postconviction
Relief is DENIED, Rule 61 Counsel’s Motion to Withdraw is GRANTED, and
Defendant’s Motion for Substitute Rule 61 Counsel is DENIED as MOOT.
2 D.I. 73(A). Docket numbers followed by the letter (A) refer to the A Case docket and docket numbers followed by the letter (B) refer to the B Case docket. 3 D.I. 95(A). 4 D.I. 116(A). 5 D.I. 150-53(A). 1 II. BACKGROUND AND PROCEDURAL HISTORY6
On the morning of July 23, 2015, Murphy’s body was discovered in the
playground area of Canby Park,7 located between the City of Wilmington and
Elsmere.8 Murphy was found partially clothed on top of the slide platform9 with
thirty to forty stab wounds on her face, neck, and chest.10 The wounds produced
such heavy bleeding that blood flowed down the slide and puddled beneath it.11 The
surrounding playground equipment was smeared and spattered with her blood.12 The
cause of death was multiple stab wounds to the neck.13 Perkins was Murphy’s
boyfriend at the time of her death.14 The same day Murphy’s body was found,
Perkins was arrested in connection with her murder.15
On October 26, 2016, Perkins was indicted for Murder First Degree,
Possession of a Deadly Weapon During the Commission of a Felony (“PDWDCF”),
Possession of a Deadly Weapon by a Person Prohibited (“PDWBPP”), and Criminal
Contempt.16 On January 19, 2017, he filed a motion to sever the PDWBPP and
6 All references to Rule 61 Counsel’s Appendix to the Motion to Withdraw are referred to as “C___” and all references to the State’s Appendix are referred to as “D___”. 7 C230-33, C236-38, C248-49, C289. 8 C206. 9 C248. 10 C237, C268-7, C438, C448-49. 11 C237. 12 C268-71, C278-84, C530-34, C540-41. 13 C449. 14 C218. 15 D.I. 1(A). 16 D.I. 3(A). 2 Criminal Contempt charges from the Murder First Degree and PDWDCF charges.17
The Court granted the motion on May 11, 2017.18 On October 20, 2017 following a
jury trial on the Murder First Degree and PDWDCF charges (the “A Case”), Perkins
was found guilty of both charges.19 After a bench trial conducted the same day, the
Court found Perkins guilty of PDWDCF and Criminal Contempt (the “B Case”).20
A.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) v. ) ID # 1507018423A & B ) GARY PERKINS, ) ) Defendant. )
MEMORANDUM OPINION
Submitted: August 15, 20231 Decided: November 8, 2023
Upon Consideration of the Commissioner’s Report and Recommendation on Defendant’s Motion for Postconviction Relief, ADOPTED
Upon Consideration of Defendant’s Motion for Postconviction Relief, DENIED
Upon Consideration of Rule 61 Counsel’s Motion to Withdraw, GRANTED
Upon Consideration of Defendant’s Motion to Substitute Rule 61 Counsel, DENIED AS MOOT
Carolyn S. Hake, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State
Patrick J. Collins, Esquire, and Kimberly A. Price, Esquire, Collins & Associates, Wilmington, Delaware, Postconviction Counsel for Defendant Gary Perkins
Anthony A. Figliola, Jr., Esquire, Greto Law, 715 N. Tatnall St., Wilmington, Delaware, Trial Counsel for Defendant Gary Perkins
JURDEN, P.J.
1 The matter was reassigned by the President Judge to herself on August 15, 2023. TABLE OF CONTENTS
I. INTRODUCTION ..............................................................................................1 II. BACKGROUND AND PROCEDURAL HISTORY ........................................2 A. The Evidence Presented at Trial ......................................................................3 i. The 911 call ................................................................................................3 ii. Video evidence ............................................................................................4 iii. Corporal Vice’s observations .....................................................................5 iv. DNA, forensic, and blood spatter evidence ................................................6 v. Perkins’ statements to police ......................................................................7 vi. Underwood’s interview testimony ..............................................................8 vii. Underwood’s trial testimony ......................................................................9 B. Postconviction Relief Procedural History .......................................................9 C. Perkins’ Rule 61 Claims ................................................................................13 D. Commissioner’s Characterization of Perkins’ Rule 61 Claims .....................15 E. Perkins’ Objections to the Commissioner’s Report ......................................16 III. STANDARDS OF REVIEW ............................................................................18 A. Rule 61: Procedural Bars to Relief ................................................................18 B. Rule 61: Ineffective Assistance of Counsel...................................................20 C. Rule 61 Counsel’s Motion to Withdraw ........................................................22 IV. DISCUSSION ...................................................................................................22 B. Perkins’ Objections to the Commissioner’s “Relevant Facts” are Without Merit .....................................................................................................................23 i. The green grocery bag..............................................................................24 ii. Underwood’s testimony ............................................................................24 iii. Arresting officer’s knowledge ..................................................................26 iv. Perkins’ DNA on the McDonald’s cup straw ...........................................27 C. Ineffective Assistance of Counsel Claims .....................................................27 i. Ground One: Trial Counsel provided Perkins with his chosen defense ..28 ii. Ground Two: Trial Counsel’s communications were not deficient .........31
ii iii. Ground Three: Perjury First Degree; and Ground Four: “Prosecutorial Misconduct” ......................................................................................................32 iv. Ground Five: “The Use of False Evidence” ............................................36 1. Trial Counsel was not unreasonable when deciding not to test some of Perkins’ clothing for DNA ............................................................................36 2. Trial Counsel was not deficient by failing to obtain a voice expert .....38 3. There was no suppression issue at the time of the arrest ......................40 D. Rule 61 Counsel’s Motion to Withdraw ........................................................41 E. Perkins’ Motion to Substitute Rule 61 Counsel ............................................42 V. CONCLUSION .................................................................................................43
iii I. INTRODUCTION
On October 26, 2017, Defendant Gary Perkins (“Perkins”) was found guilty
by a jury of Murder First Degree and Possession of a Deadly Weapon During the
Commission of a Felony for the fatal stabbing of his girlfriend, Jamie Murphy
(“Murphy”).2 He now moves for Postconviction Relief under Superior Court
Criminal Rule 61 (“Rule 61 Motion”).3 This Memorandum Opinion addresses his
Rule 61 Motion, Rule 61 Counsel’s Motion to Withdrawal,4 and Defendant’s Motion
for Substitute Rule 61 Counsel,5 encompassing all outstanding motions. For the
reasons set forth below, the Commissioner’s Report and Recommendation
(“Commissioner’s Report”) is ADOPTED, Defendant’s Motion for Postconviction
Relief is DENIED, Rule 61 Counsel’s Motion to Withdraw is GRANTED, and
Defendant’s Motion for Substitute Rule 61 Counsel is DENIED as MOOT.
2 D.I. 73(A). Docket numbers followed by the letter (A) refer to the A Case docket and docket numbers followed by the letter (B) refer to the B Case docket. 3 D.I. 95(A). 4 D.I. 116(A). 5 D.I. 150-53(A). 1 II. BACKGROUND AND PROCEDURAL HISTORY6
On the morning of July 23, 2015, Murphy’s body was discovered in the
playground area of Canby Park,7 located between the City of Wilmington and
Elsmere.8 Murphy was found partially clothed on top of the slide platform9 with
thirty to forty stab wounds on her face, neck, and chest.10 The wounds produced
such heavy bleeding that blood flowed down the slide and puddled beneath it.11 The
surrounding playground equipment was smeared and spattered with her blood.12 The
cause of death was multiple stab wounds to the neck.13 Perkins was Murphy’s
boyfriend at the time of her death.14 The same day Murphy’s body was found,
Perkins was arrested in connection with her murder.15
On October 26, 2016, Perkins was indicted for Murder First Degree,
Possession of a Deadly Weapon During the Commission of a Felony (“PDWDCF”),
Possession of a Deadly Weapon by a Person Prohibited (“PDWBPP”), and Criminal
Contempt.16 On January 19, 2017, he filed a motion to sever the PDWBPP and
6 All references to Rule 61 Counsel’s Appendix to the Motion to Withdraw are referred to as “C___” and all references to the State’s Appendix are referred to as “D___”. 7 C230-33, C236-38, C248-49, C289. 8 C206. 9 C248. 10 C237, C268-7, C438, C448-49. 11 C237. 12 C268-71, C278-84, C530-34, C540-41. 13 C449. 14 C218. 15 D.I. 1(A). 16 D.I. 3(A). 2 Criminal Contempt charges from the Murder First Degree and PDWDCF charges.17
The Court granted the motion on May 11, 2017.18 On October 20, 2017 following a
jury trial on the Murder First Degree and PDWDCF charges (the “A Case”), Perkins
was found guilty of both charges.19 After a bench trial conducted the same day, the
Court found Perkins guilty of PDWDCF and Criminal Contempt (the “B Case”).20
A. The Evidence Presented at Trial
i. The 911 call
The State presented overwhelming evidence against Perkins at trial. Most
significant was the 911 recording that captured Murphy’s murder.21 This 911 call
was made from Murphy’s cell phone at 4:01 a.m. on July 23, 2015.22 As the 911
operator attempted to communicate with the caller, the jury could hear gasping,
moaning, and wheezing.23 The audio captures a male voice stating, among other
things; “Die bitch,” . . . “I told Jim I was gonna kill your motherfucking ass,” and
what could be interpreted as, “don’t fuck with G.”24 Perkins’ Probation Officer
17 D.I. 32(A). 18 D.I. 47(A). 19 D.I. 66(A). 20 D.I. 13(B). These convictions were affirmed by the Supreme Court. Perkins v. State, 2019 WL 327959, at *1 (Del. Jan. 23, 2019). Counsel raised only one issue on direct appeal, claiming that an outburst from the gallery during opening statements was so prejudicial that it should have resulted in a mistrial. C786-796. 21 C173-75. 22 Id., C366-69, C372-73, C717; D108. 23 Id. 24 Id. 3 testified at trial that it was Perkins’ voice on the 911 call.25 He testified he was
familiar with Perkins’ voice as a result of his weekly in-person meetings and phone
calls with Perkins over the course of eighteen months.26
ii. Video evidence
At the scene, law enforcement officers found a purse containing Murphy’s
photo ID, a green grocery bag,27 and two McDonald’s cups next to her body.28 The
State presented video footage from the McDonald’s located in Elsmere near Canby
Park that depicted Murphy and Perkins purchasing two drinks on the evening of July
22, 2015 around 7:30 p.m.29 In the video, Perkins can be seen carrying a green
grocery bag similar to the bag found at the scene.30 Video footage from a second
McDonald’s on 4th Street in the early morning hours of July 23, 2015 showed
Perkins wearing orange sweatpants and speaking to another individual by the name
of Thomas Underwood (“Underwood”).31 When Perkins was arrested around 5:30
p.m. on July 23, 2015, he was wearing orange sweatpants.32
25 C392-96. The Probation Officer was not identified to the jury as Perkins’ Probation Officer. 26 Id. 27 C267-68, C287-89. 28 C275-78, C291-92, C573. 29 C298-03, C573-75. 30 C298-301; D5. 31 C314, C577; D7. Because there are two McDonald’s, the McDonald’s near Elsmere will be referred to as “Elsmere McDonald’s” and the McDonald’s on 4th Street will be referred to as the “4th Street McDonald’s.” 32 C206-07, C351-54. 4 iii. Corporal Vice’s observations
Corporal Vice testified he saw Perkins wearing bright orange sweatpants on
the morning of July 23, 2015.33 Corporal Vice knew Perkins from prior encounters
and was familiar with Murphy’s and Perkins’ relationship.34 Corporal Vice testified
that on the morning of Perkins’ arrest he saw Perkins on Walnut Street between 8th
Street and 9th Street but made no contact.35 Later that day, following a police call
notifying him that Perkins was a suspect in Murphy’s death, Corporal Vice located
and approached Perkins at a local bus shelter.36 While patting Perkins down,
Corporal Vice noticed that Perkins wore a pair of blue sweatpants underneath his
orange sweatpants.37 After pulling the orange sweatpants partially down, Corporal
Vice noticed Perkins’ blue sweatpants were covered in blood.38 Inside the pocket of
the blue sweatpants, Corporal Vice found a pen knife and fresh blood.39 Corporal
Vice testified that law enforcement collected Perkins’ clothing.40 The inventory
taken included a surfboard keychain attached to a small knife with a two-inch
33 C350. Corporal Vice’s full title is Corporal Damian Vice of the Wilmington Police Department. C346-47. 34 C347-48, C355. 35 C350, C355. 36 C350-52, C356-57. 37 C352-53. 38 C353. At trial, the State’s DNA expert testified it was Murphy’s blood. 39 Id. 40 C361. 5 blade.41 Both the keychain and knife appeared to have dried blood on them.42 Blood
was also found on the Perkins’ gray long-sleeved shirt, blue short-sleeved shirt, and
Timberland boots.43
iv. DNA, forensic, and blood spatter evidence
The State introduced DNA evidence through its DNA expert, Sarah Lindauer
(“Lindauer”). Lindauer explained that Perkins’ clothing and knife, and the
McDonald’s cups, among other items, were collected from the crime scene and
tested for DNA.44 The tests revealed that one of the McDonald’s cups had Murphy’s
fingerprints and DNA on it.45 The other cup had Murphy’s DNA on the cup stain
and Perkins’ DNA on the straw.46 Blood from Perkins’ gray long-sleeved shirt
produced a mixed DNA profile of at least two individuals which included Murphy.47
Blood from Perkins’ blue sweatpants and left boot also produced mixed DNA
profiles of at least two individuals with Murphy being the major contributor.48 Blood
on the blade of the knife taken from Perkins’ pocket at the time of his arrest and
blood found on one of his boots produced a single source profile that was consistent
41 Id. 42 C361-62, C401, C414-15, C577. 43 C405-11. 44 C474-75. 45 C482. 46 C482-83. 47 C485-89. 48 Id. 6 with Murphy’s DNA.49 The knife handle swab produced a mixed DNA profile with
Perkins as a possible contributor.50
The State’s forensics expert, Dr. Gary Collins, testified that the cause of
Murphy’s death was multiple stab wounds to her neck caused by a sharp object
consistent with the knife found on Perkins at the time of his arrest.51
The State’s bloodstain pattern expert, Paul Kish (“Kish”), who performed a
pattern analysis on the physical evidence and looked for blood-like stains,52 testified
that the blood spatter observed on the playground equipment and Perkins’ clothing
correlated with the DNA report.53 He also testified that the blood spatter patterns on
Perkins’ sweatpants indicated he was near Murphy when the stabbing occurred.54
v. Perkins’ statements to police
Detective Bucksner testified that, after being read his Miranda rights, Perkins
agreed to speak with the police.55 Initially, Perkins denied seeing or speaking with
Murphy for several weeks, but when confronted with information regarding the
McDonald’s video footage of him with Murphy, he admitted to seeing her the
49 C478-81. 50 C484. 51 C437, C449-54. 52 C523-24. 53 C528-47. 54 C556-57. 55 C133-C581. Detective Bucksner’s full title is Detective Corporal Joseph Bucksner of the Wilmington Police Department. C34-35. 7 evening of her murder.56 Perkins claimed that he and Murphy parted ways after
leaving McDonald’s, and he spent the night in the 10th Street Park.57 He told the
police that he developed a rash after having sex with Murphy one week prior to her
death and presented to Christiana Hospital to be tested for a venereal disease.58
Medical records confirmed that Perkins was examined on July 21, 2015 for a
sexually transmitted disease.59
vi. Underwood’s interview testimony
Prior to trial, police interviewed Underwood, and Underwood provided
incriminating information about Perkins. Underwood testified in his interview that
Perkins was angry with Murphy because he believed she had given him a venereal
disease.60 In his interview, Underwood claimed Perkins said he was going to “beat
her up” for giving him a venereal disease.61 During cross-examination, defense
counsel, Anthony Figliola, Esq. (“Figliola”), vigorously attacked Underwood’s
credibility, using his prior statement to impeach him before the jury.62
56 C139-45, C158, C160. 57 C146, C161. 58 C136, C150-54, C160. 59 C583-84. 60 C311-14. 61 C312-13, C317, C320-23. 62 Id. 8 vii. Underwood’s trial testimony
At trial, Underwood testified that he spoke to Perkins (who he referred to as
“G”) the day before Murphy was killed.63 Underwood testified he saw Perkins again
on the morning of July 23, 2015 at the 4th Street McDonald’s.64 At the 4th Street
McDonald’s, Perkins admitted to Underwood that he had seen Murphy the night
before on the bus.65 During that conversation, Underwood observed blood stains
between Perkins’ finger and thumb. Underwood testified that Perkins always carried
a pocketknife.66
B. Postconviction Relief Procedural History67
On March 12, 2019, Defendant filed a Motion for Postconviction Relief and
the Appointment of Counsel.68 His Motion was referred to a Superior Court
63 C311-14. 64 C311-13, C576. Underwood met Perkins through a mutual friend named Ellis Whiteman, who is known as “Jimmy.” C310. 65 C312. 66 C311-12, C331-32, C576. 67 This case has a long, drawn out, post-conviction procedural history. This is attributable, in part, to the deluge of letters filed by Perkins. Since filing his Motion for Postconviction Relief in March 2019, Perkins has filed 35 letters. D.I. 97(A), D.I. 103-04(A), D.I. 106-08(A), D.I. 110-13(A), D.I. 119-20(A), D.I. 131(A), D.I. 133(A), D.I. 135-37(A), D.I. 146(A), D.I. 148(A), D.I. 152- 53(A), D.I. 155-56(A), D.I. 163(A), D.I. 165(A), D.I. 170-73(A), D.I. 176(A), D.I. 179(A), D.I. 182(A), D.I. 184(A), D.I. 185(A), D.I. 187(A). 68 D.I. 90-91(A). The State in its Response concisely framed Perkins’ initial Rule 61 claims as follows: (1) ineffective assistance of counsel for (a) failing to prepare a defense at trial, (b) mailing him discovery 18 days before the trial started, (c) refusing to communicate; (2) “perjury in the first degree” by an unnamed State witness; (3) prosecutorial misconduct for “misleading the jury with untruthfulness”; (4) “the use of false evidence”; (5) failure of the police to inform him of his right to remain silent; (6) Trial Counsel violated Delaware Rules of Professional Conduct 1.4(a)(4) by failing to promptly comply with reasonable requests for legal information he needed. 9 Commissioner for proposed findings of fact and recommendations pursuant to 10
Del. C. § 512(b) and Superior Court Criminal Procedure Rule 62(a)(5).69
Two months later, on May 6, 2019, Perkins filed a second pro se Motion for
Postconviction Relief, raising nearly identical claims as those in his first Motion,
and again requesting the appointment of counsel.70 On June 20, 2019, the
Commissioner granted his appointment of counsel request and Patrick J. Collins,
Esq. and Kimberly A. Price, Esq. became Perkins’ Rule 61 Counsel (“Rule 61
Counsel”).71
On February 19, 2021, Perkins’ Rule 61 Counsel found no meritorious
grounds for relief and moved to withdraw.72 Perkins requested a continuance on
March 3, 2021 to respond to his Rule 61 Counsel’s Motion, and the Commissioner
granted his request.73
On April 21, 2021, Perkins filed a Motion for Substitute Rule 61 Counsel and
an extension of time to respond to Rule 61 Counsel’s Motion to Withdraw.74 The
State’s Resp. at 3. 69 D.I. 94(A). 70 D.I. 95-96(A). The Court considers Perkins’ second pro se motion as a supplement to his original Rule 61 Motion. 71 D.I. 98(A). 72 Id. 73 D.I. 119-121(A). 74 D.I. 126-127(A). Although Perkins does not describe his request for substitute counsel as a Motion, the Court will review it, and his corresponding supplemental letters, as such. 10 Commissioner granted a 30-day extension,75 and on June 15, 2021, Perkins filed
pro se his responses to Rule 61’s Counsel’s Motion to Withdraw.76
On July 27, 2021, Perkins’ Trial and Appellate Counsel, Anthony Figliola, Jr.,
responded to Perkins’ claims of ineffective assistance of counsel (“IAC”).77
In August 2021, Perkins filed a series of supplemental letters and
documentation to support his previously filed responses to his Rule 61 Counsel’s
Motion to Withdraw.78
On August 27, 2021, the State filed its response to Rule 61 Counsel’s Motion
to Withdraw and Perkins’ Rule 61 Motion.79
On December 10, 2021, the record was further expanded to allow his original
Trial Counsel, who withdrew prior to the case going to trial, Eugene Maurer, Jr.,
Esq., to file an affidavit in response to Perkins’ Rule 61 Motion.80
Throughout early 2022, Perkins continued to file various submissions with the
Court, including letter requests for extensions of time to file his reply, a stay of all
75 D.I. 127(A). 76 D.I. 128(A). In Perkins’ responses, he further clarifies that the witnesses he asserts submitted false claims were both Detective Bucksner and Underwood. 77 D.I. 130(A). 78 D.I. 131(A), 133(A), 135-37(A). 79 D.I. 138-39(A). 80 D.I. 143-44(A). Maurer served as counsel for Perkins until the Court granted his motion to withdraw on January 23, 2017. See D.I. 36(A). The State was permitted to supplement its response to Rule 61 Counsel’s Motion to Withdraw and Perkins’ IAC claims after Mauer filed his affidavit responding to the IAC claims. However, Maurer’s affidavit did not prompt any further briefing by the State. By letter dated January 5, 2022, the State indicated it was relying on its Response to Perkins’ Pro Se Motion for Postconviction Relief filed on August 27, 2021. D.I. 145(A). 11 proceedings, an evidentiary hearing request, and additional requests for the
appointment of substitute Rule 61 counsel.81 In response to Perkins’ request to stay
the proceedings, the Commissioner granted his request and stayed the matter until
November 30, 2022, to give him time to retain substitute Rule 61 counsel.82 He was
unsuccessful in retaining substitute counsel and, on November 23, 2022, he filed his
pro se brief in support of his Motion for Postconviction Relief.83
On March 24, 2023, the Commissioner issued her Report and
Recommendation to the Court to deny Defendant’s Motion for Postconviction Relief
and grant Rule 61 Counsel’s Motion to Withdraw.84 The Commissioner also denied
“all other motions related to the Rule 61 motion filed by [Perkins] not previously
ruled upon by the Court.”85
On April 5, 2023, Perkins filed his “Appeal from the Commissioner’s
Findings of Fact and Recommendation” (“Objections”).86
81 D.I. 148-50(A), 152-57(A). 82 D.I. 161(A). 83 D.I. 169(A). Perkins then filed requests for a decision on December 16, 2022 and December 19, 2022, respectively. D.I. 170-173(A). There are errors in the docket. First, D.I. 169 is filed as Perkins’ “Motion for Postconviction Relief.” This is not a second motion, but rather is his “Brief in Support of his Motion for Postconviction Relief.” The Commissioner’s Report refers to a D.I. 168(A) but there is no D.I. 168(A) in the docket. 84 Commissioner’s Report and Recommendation, ID No. 1507018423 A&B, D.I.174(A) (Del. Super. Mar. 23, 2023) (herein “Comm. Rep.”). 85 D.I. 177(A). See Comm. Rep. at 21 n.102. 86 D.I. 177(A). Although Perkins refers to his response as an “appeal,” the Court will refer to them as objections consistent with 10 Del. C. § 512(b)(1)d. 12 On May 24, 2023, the Court granted the State’s request for an extension of
time to respond to Perkins’ Objections.87
On June 2, 2023, Perkins filed a letter objecting to his Rule 61 Counsel’s
“decision not to oppose the State’s [request for an] extension” because he “was not
in agreement with that decision . . . .” 88
On June 16, 2023, the State filed its Response to Defendant’s Objections
(“State’s Response”).89
On July 17, 2023 and July 27, 2023, Perkins filed requests seeking a decision
on his Objections.90
On August 24, 2023, Perkins filed a letter asking whether a decision had been
made, again requesting to substitute Rule 61 Counsel, and requesting “docket
sheets.”91 The Court provided Perkins with a copy of the case docket on September
15, 2023 and considers his Rule 61 Motion and Motion for Substitute Rule 61
Counsel below.92
C. Perkins’ Rule 61 Claims
Consolidating all of Perkins’ Rule 61 filings, Perkins asserts the following
Rule 61 claims:
87 D.I. 181(A). 88 D.I. 182(A). 89 D.I. 183(A). 90 D.I. 184(A). 91 D.I. 187(A). 92 D.I. 188(A). 13 (1) “Trial Counsel failed to present a defense, failed to provide him with discovery until 18 days before trial, and failed to communicate with him[;]
(2) ‘Perjury in the First Degree,’ namely that State witnesses provided false testimony in the court proceedings[;]
(3) Prosecutorial misconduct that the State mislead the jury and was untruthful during trial[;]
(4) ‘Use of False Evidence,’ that because some of his clothing was never tested for DNA that the use of that clothing by the forensic consultant in his testimony was tantamount to providing false evidence[;]
(5) Violation of his Miranda Rights in that law enforcement essentially failed to fully explain either his right to remain silent or his right to counsel[;]
(6) A violation of the Rules of Professional Conduct and that his Trial Counsel violated Section 1.4(a)(4) of the Delaware Rules of Professional Responsibility for failing to promptly respond to his requests for legal information before trial and during his direct appeal.
(7) failing to impeach or otherwise object to the testimony of certain police officers at trial;
(8) failing to file a motion to suppress the clothing he was wearing that was not tested for DNA and/or failing to present evidence that some of the clothing he was wearing was not tested for DNA;
(9) failing to call a voice authentication expert to testify that the voice on the 911 call was not Perkins’ voice;
(10) failing to cross-examine the officer who testified regarding the 911 call with a transcript of the call ‘allowing the jury to see that there was inconsistency with his statement;’
(11) failing to object to the testimony of Thomas Underwood;
(12) failing to refute the statements about the Perkins having a venereal disease; and 14 (13) failing to move to suppress evidence taken from Perkins at the time of his arrest because Perkins was taken into custody [and searched] without a warrant in violation of his Fourth and Fourteenth Amendment rights.”93
D. Commissioner’s Characterization of Perkins’ Rule 61 Claims
As the Commissioner notes, in Perkins’ November 15, 2022 pro se Brief in
Support of Motion for Postconviction Relief he seems to abandon certain claims and
attempts to whittle down the foregoing list into five claims:
Claim One – Petitioner’s rights under the United States and Delaware Constitutions were violated by Trial Counsel’s failure to investigate, failure to move to suppress and present evidence of Detective Bucksner[‘s] false statements made during Petitioner’s August 26, 2015 preliminary hearing;
Claim Two – Petitioner was deprived of a fair trial because the State knowing[ly] presented and/or failed to correct false testimony at his trial; to the extent Trial Counsel could have objected and presented evidence of prosecutorial misconduct an[d] perjury in the first degree;
Claim Three – Petitioner’s rights under the United States and Delaware Constitutions were violated by Trial Counsel’s failure to investigate and arrange for a voice expert to attend Petitioner’s trial allowing the use of false evidence to be presented;
Claim Four – Petitioner’s rights under the United States and Delaware Constitutions were violated by Trial Counsel’s failure to object to Thomas Underwood[‘s] testimony and failure to request a self-serving instruction where State’s witness had offenses that were never explored; and
Claim Five – The cumulative effect of two or more of the above- described violations of Petitioner’s rights deprived Petitioner of a fair
93 D.I. 167(A), 169(A). 15 trial and, thus, due process of law under the United States and Delaware Constitutions.94
E. Perkins’ Objections to the Commissioner’s Report
Perkins objects to the following:
(1) Commissioner’s finding that the green bag carried by Perkins in the surveillance footage from the McDonald’s near Canby Park was consistent with the green bag found near Murphy’s body at the scene.95
(2) Commissioner’s classification that Underwood testified on stand that if Murphy gave Perkins a venereal disease that he would beat up or kill her.96
(3) Commissioner’s finding, “when the officer learned that Perkins was a suspect in the death of Ms. Murphy, he located Perkins at a bus shelter at the intersection of 10th and King Streets.”97
(4) Commissioner’s finding, “[o]ne of the McDonald’s cups found on the playground had Ms. Murphy’s fingerprints and DNA on it and the other cup had Ms. Murphy’s and the Defendant’s DNA on it.”98
(5) Commissioner’s organizing of Perkins’ postconviction relief request, placing prosecutorial misconduct and perjury in the first degree under an ineffective assistance of counsel claim.99
(6) Commissioner’s categorization that Perkins chose the defense that Trial Counsel presented at trial.100
94 D.I. 169(A) (i), (ii). 95 Comm. Rep. 96 Id. at 6-7. 97 Id. at 7. 98 Id. at 9. 99 Id. at 21. 100 Comm. Rep. at 24. 16 (7) Commissioner’s determination that Trial Counsel was not ineffective for not producing Perkins’ laboratory tests to refute statements of him having a venereal disease.101
(8) Commissioner’s contention that Trial Counsel communicated with Perkins through in-person meetings to review the evidence on numerous occasions.
(9) Commissioner’s statement that “[n]othing in the record indicates Detective Bucksner intentionally lied at any stage of the proceedings.”102
(10) Commissioner’s explanation that the inconsistencies in Underwood and Detective Bucksner’s comments “do not establish perjury but are rather credibility questions for the jury.”103
(11) Commissioner’s conclusion, “Perkins’ ‘use of false evidence’ assertion is procedurally barred under Rule 61(i)(3) because he failed to raise it in the proceedings leading to his conviction and, as such, should be summarily denied.”104
(12) Commissioner’s finding that Trial Counsel was not deficient because they failed “to present evidence that some of his clothing was not tested for DNA.”105
(13) Commissioner’s finding that Trial Counsel was not deficient in failing to obtain a voice expert to refute Perkins’ Probation Officer’s testimony.106
(14) Commissioner’s finding that the police had probable cause to arrest and search Perkins without a warrant.107
101 Comm. Rep. at 43-44. 102 Id. at 30. 103 Id. at 31. 104 Id. at 33. 105 Id. at 36. 106 Id. at 38-39. 107 Id. at 47. 17 III. STANDARDS OF REVIEW
Pursuant to 10 Del. C. § 512(b)(1), the Court may designate a commissioner
to review a motion for postconviction relief and provide a report and corresponding
recommendation to the Court.108 Following the issuance of a report and
recommendation, any party may file timely objections to the Commissioner’s
findings.109 In reviewing a party’s objections, the Court “shall make a de novo
determination of those portions of the report or specified findings of fact or
recommendations to which an objection is made.”110 The Court may then “accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
Commissioner.”111
A. Rule 61: Procedural Bars to Relief
Rule 61 governs postconviction relief.112 Under Rule 61, an incarcerated
individual may seek abrogation of his conviction by establishing a lack of
jurisdiction or alternative ground that sufficiently establishes a factual and legal
basis for a collateral attack upon the conviction.113 The rule is designed as a
safeguard to allow the Court to correct constitutional infirmities in a conviction or
108 10 Del. C. § 512(b)(1)b. 109 10 Del. C. § 512(b)(1)d. 110 Id.; State v. Bartell, 2020 WL 6480845, at *1 (Del. Super. Nov. 4, 2020). 111 Id. 112 Super. Ct. Crim. R. 61(a)(1). 113 Id. 18 sentence.114 However, while “Rule 61 is intended to correct errors in the trial
process, [it does] not allow defendants unlimited opportunities to relitigate their
convictions.”115
Before considering the merits of any claims for postconviction relief, the
Court must first consider whether any procedural bars exist.116 Rule 61(i) establishes
four procedural bars to postconviction relief.117 Rule 61(i)(1) requires a motion for
postconviction relief must be filed within one year of a final judgement or
conviction.118 Rule 61(i)(2) bars successive motions for postconviction relief unless
certain conditions are met.119 Pursuant to Rule 61(i)(3) and (4), any ground for relief
not previously raised is deemed waived and any claims formerly adjudicated are
thereafter barred.120
There is an exception to the Rule 61(i)(3) procedural bar to relief. Procedural
default may be overcome if the movant shows “(A) cause for relief from the
114 Harris v. State, 410 A.2d 500 (Del. 1970). 115 Ploof v. State, 75 A.3d 811, 820 (Del. 2013). 116 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 117 Super. Ct. Crim. R. 61(i)(1)-(4). 118 Super. Ct. Crim. R. 61(i)(1). 119 Rule 61(i)(2) bars successive or subsequent motions for postconviction relief unless the movant is able to “pled with particularity” that (i) “new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted” or (ii) “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 or death sentence invalid.” Super. Ct. Crim. R. 61(d)(2). 120 This includes proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding. See Super. Ct. Crim. R. 61(i)(5), (d)(2)(i), (ii). 19 procedural default and (B) prejudice from violation of the movant’s rights.”121 A
“cause” for procedural default can be shown through IAC.122 However, “[a]ttorney
error short of ineffective assistance of counsel does not constitute ‘cause’ for a
procedural default even when that default occurs on appeal rather than trial.” 123
Because IAC claims cannot be raised at any earlier stage in the proceedings and are
properly presented by way of a motion for postconviction relief.124
B. Rule 61: Ineffective Assistance of Counsel
To succeed on IAC claims, a defendant must meet the test set out in Strickland
v. Washington.125 That is, the defendant must demonstrate that: (1) trial counsel’s
performance was objectively unreasonable,126 and (2) if counsel was deficient, there
was a “reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.”127
Although not insurmountable, the Strickland standard is highly demanding
and leads to a strong presumption that counsel’s conduct fell within a wide range of
reasonably professional assistance.128 Mere allegations of ineffectiveness are not
121 Super. Ct. Crim. R. 61(i)(3)A, B. 122 Younger v. State, 580 A.2d 552, 556 (Del. 1990). 123 Id. 124 Sabb v. State, 2021 WL 2229631, at *1 (Del. May 28, 2021); Green v. State, 238 A.3d 160, 187-188 (Del. 2020); Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan- Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016). 125 Strickland v. Washington, 466 U.S. 668, 694 (1984). 126 Sykes v. State, 147 A.3d 201, 211 (Del. 2015) (citing Strickland, 466 U.S. at 694). 127 Strickland, 466 U.S. at 694. 128 Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008). 20 enough.129 Counsel “may not be faulted for reasonable miscalculation or lack of
foresight or for failing to prepare for what appear to be remote possibilities.”130
There is a strong presumption that a defense counsel’s conduct constituted sound
trial strategy,131 and a defendant must make and substantiate concrete allegations
that overcome this presumption.132 When reviewing a defendant’s allegations of
deficient counsel, the reviewing court must “avoid peering through the lens of
hindsight.”133 The “[b]enchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.”134
The Court also utilizes the Strickland test when reviewing the performance of
appellate counsel.135 Importantly, appellate counsel has wide discretion to decide
which issues to appeal and is not constitutionally required to raise all possible
issues.136 “A defendant can only show that his appellate counsel ineffectively
represented him where the attorney omits issues that are clearly stronger than those
the attorney presented” on appeal.137 Even where a defendant is successful in
129 Younger, 580 A.2d at 556. 130 State v. Finn, 2012 WL 1980566, at *4 (Del. Super. May 23, 2012) (citing Harrington v. Richter, 562 U.S. 86, 102-110 (2011)). 131 Strickland, 466 U.S. at 694. 132 See Salih, 962 A.2d at 257; see also Albury, 551 A.2d at 59. 133 State v. Wright, 653 A.2d 288, 295 (Del. Super. 1994). 134 Cooke v. State, 977 A.2d 803, 840 (Del. 2009) (internal quotations omitted). 135 Flamer v. State, 585 A.2d 736, 753 (Del. 1990). 136 Neal v. State, 80 A.3d 938, 946 (Del. 2013). 137 Ploof, 75 A.3d at 832. 21 demonstrating the foregoing, he must then establish a reasonable probability that,
but for appellate counsel’s failure to raise the issue, the defendant would have
prevailed on appeal.138
C. Rule 61 Counsel’s Motion to Withdraw
Rule 61 Counsel’s Motion to Withdraw is governed by Superior Court
Criminal Rule 61(e)(7). Under Rule 61, counsel may move to withdraw if they find
the movant’s claim to be “so lacking in merit that counsel cannot ethically advocate
it, and counsel is not aware of any other substantial ground for relief available to the
movant.”139 When evaluating a motion to withdraw, the Court must determine if its
satisfied that moving counsel made conscientious examinations of the record and the
law for any claims that could arguably support the Rule 61 motion.140 The Court
should also undertake its own review of the relevant claims to determine whether
the Rule 61 motion would be devoid of “any, at least, arguable postconviction
claims.”141
IV. DISCUSSION
In her forty-nine-page Report and Recommendation detailing why Perkins
fails to establish he is entitled to postconviction relief, the Commissioner concludes:
138 Neal, 80 A.3d. at 947. 139 Super. Ct. Crim. R. 61(e)(7). 140 State v. Coston, 2017 WL 6054944, at *2 (Del. Super. Dec. 7, 2017). 141 Id. 22 [t]he evidence presented at trial implicating Perkins in the death of Jaime Murphy was overwhelming. It included, among other things, (i) an audiotape of the 911 call made from the victim’s phone during the attack. . . in which her killer’s voice is heard and then identified as being Perkins’ voice at trial, (ii) surveillance video of the victim and the Defendant together the evening before she was killed, (iii) DNA evidence of the victim found on the murder weapon and Perkins’ clothes and (iv) witness testimony implicating Perkins in the crime and establishing motive. The Court finds no professional errors on the part of trial or appellate counsel much less any errors that would meet the exacting standards set forth in Strickland or otherwise convince the Court that the trial cannot be relied on as having produced a just result. . . Perkins has failed to establish that either his appellate counsel or Trial Counsel was deficient in any regard or that he suffered actual prejudice as a result thereof. The Court has reviewed the record carefully and has concluded that Defendant’s Rule 61 motion is without merit and devoid of any other substantial claims for relief. The Court is also satisfied that appointed Rule 61 counsel made a conscientious effort to examine the record and the law and has properly determined that Perkins does not have a meritorious claim to be raised in his Rule 61 motion.142
The Court now addresses each of Perkins’ Objections to the Commissioner’s
Report.
B. Perkins’ Objections to the Commissioner’s “Relevant Facts” are Without Merit Perkins first objects to the following factual findings made by the
Commissioner: (1) the green grocery bag found at the murder scene was consistent
with the grocery bag Perkins carried in the McDonald’s video; (2) Perkins told
Underwood that if Murphy had given him a venereal disease that he was going to
kill her; (3) the arresting officer knew he was a suspect in Murphy’s death before he
142 Comm. Rep. at 48-49. 23 took Perkins into custody; and (4) Perkins’ DNA was on one of the McDonald’s
cups.143
i. The green grocery bag
Perkins’ objection to the Commissioner’s finding that the green bag at the
scene was “consistent” with the bag he was carrying as depicted in the video
evidence is based on Detective Bucksner’s 2015 preliminary hearing testimony that
“there were no fingerprints found at the scene that belong to Perkins.”144 This
objection is without merit. The Commissioner’s Report relies on the undisputed
evidence presented at trial. Investigators found a green grocery bag and a black
purse at the top of the sliding board where Murphy’s body was found. 145 The
surveillance video from the Elsmere McDonald’s shows Perkins and Murphy on the
evening before the murder and Perkins is carrying a green grocery bag.146 This is
ample evidence to support the Commissioner’s finding.
ii. Underwood’s testimony
Perkins next argues that Underwood lied in his trial testimony. He contends
that, in Underwood’s interview with Detective Bucksner, Detective Bucksner asked
whether Perkins said he was going to beat up Murphy and Underwood responded,
143 C482-83. 144 Objections at 1. 145 C267-68, C287-89. 146 C298-303; D5. 24 “No.”147 Perkins overlooks the fact that Detective Bucksner asked Underwood two
questions: “Did he say he was going to beat her up? Did he say anything else?” to
which Underwood answered, “No.”148 Underwood’s “No” was in response to
Detective Bucksner’s second question, not his first. Underwood had already told
Detective Bucksner earlier in the interview that “[Perkins], like he, you know, he
say to get to her, he’d beat her up.”149 When Detective Bucksner asked for
clarification as to why Perkins said he would beat up Murphy, Underwood replied,
“because he thought she gave him a venereal disease.”150 The inconsistency between
Underwood’s trial testimony—that Perkins said he was going to “kill” Murphy and
Underwood’s police interview—that Perkins said he was going to “beat her up”—
was highlighted and explored by Perkins’ Trial Counsel in front of the jury.151 On
cross-examination, pursuant to 11 Del. C. §3507, Perkins’ Trial Counsel introduced
Underwood’s prior inconsistent statement made to police to impeach Underwood’s
credibility.152 When Trial Counsel pointed out to Underwood that there was no
mention of Perkins saying he was going to kill Murphy in the Underwood’s
interview with police, Underwood testified:
[n]o, that’s not true. You only reading two pages of a statement, man. I told [Detective Bucksner] that. He said that day I remember telling 147 Objections at 3-4. 148 D44. 149 D43. 150 Id. 151 C312-13, C317, C322. 152 C324-325. 25 him because he said he was going to kill her. . . Why it ain’t in the transcript, I don’t know. I know I told him that because that man said that.153
Trial Counsel then called Detective Bucksner as an adverse witness in the defense’s
case.154 During the State’s cross-examination questioning when the State asked
whether Detective Bucksner remembered Underwood talking about whether Perkins
would injure Murphy, Detective Bucksner replied “Yes.”155 This objection is
without merit.
iii. Arresting officer’s knowledge
Perkins objects to the Commissioner’s factual finding that Perkins’ arresting
officer had knowledge that Perkins was a suspect in Murphy’s murder at the time of
his arrest because the officer’s report does not state that Perkins was “wanted for the
death of [Murphy] before he made the stop.”156 Corporal Vice testified that, after he
saw Perkins, he learned of the murder and received a communication asking if he
recognized Perkins.157 He responded, “Yes…[w]hat did he do now?”158 It was after
this call that he looked for Perkins, found him, and took him into custody.159
153 C322. 154 D84-85, D.I. 167(A) at (i), 3-5. Detective Bucksner testified at Perkins’ preliminary hearing held on August 26, 2015 as follows: “The witness also stated that on July 22nd they had a conversation with Perkins in which Mr. Perkins stated he was going to kill Murphy.” C41. 155 C329-31. 156 Objections at 2. 157 C349-52. 158 Id. 159 C352-53. 26 Whether this was memorialized in a police report is of no consequence. This
objection is without merit.
iv. Perkins’ DNA on the McDonald’s cup straw
Perkins objects to the Commissioner’s factual determination regarding DNA
found on the straw of one of the McDonald’s cups. He argues that because his DNA
was only found on the straw of one of those cups, it proves he did not place the cup
in that location.160 While Perkins’ DNA was not found on the cup stains, this does
not vitiate the fact that Perkins’ DNA was found on the straw of the cup, nor does it
“prove” that Perkins did not leave the cup at the murder scene. This objection is
On de novo review, the Court adopts all of the Commissioner’s factual
findings, and now turns to Perkins’ six grounds for relief based on IAC.
C. Ineffective Assistance of Counsel Claims161
Perkins objects to the Commissioner’s characterization of his six claims for
relief as “IAC claims” because he does not believe they are properly characterized
as such.162 His objection on this point is difficult to understand given that Perkins’
only avenue to relief is through IAC claims. To prevail under Rule 61, Perkins must
160 Objections at 2. 161 The Court condenses a few of the headings and sections in the Commissioner’s Report for brevity and clarity. 162 Objections at 3. 27 show there was cause for relief and prejudice from the violation of his rights.163
Because Perkins’ claims would otherwise be procedurally barred under Rule 61,
Perkins must show an IAC claim amounts to showing of cause for relief. 164 The
Commissioner’s characterization of the claims as IAC claims benefits Perkins.165
While the Commissioner identified six claims for relief, on de novo review
the Court condenses Perkins’ claims into five grounds.166
i. Ground One: Trial Counsel provided Perkins with his chosen defense
Perkins claims that Trial Counsel was deficient in not allowing him to pick
his chosen defense. The Commissioner concluded that Perkins’ claim is merely
conclusory and fails to prove an IAC claim.167 The Court agrees. As the
Commissioner correctly notes:
[t]rial counsel pursued an identity defense as Perkins asserted that he was not the individual who killed Murphy. Trial Counsel hired a private investigator to attempt to substantiate Perkins’ claim that another person at Canby Park killed Ms. Murphy and he merely came upon her after the attack, but the private investigator found no evidence to support his allegations.
Despite the lack of evidence to support these assertions, Trial Counsel nevertheless argued in opening statements and closing arguments that
163 Super. Ct. Crim. R. 61(i)(3). 164 Id. 165 Comm. Rep. at 21, n.102. 166 The Court combines the Commissioner’s Ground Six: Trial and Appellate Counsels’ violations of the Professional Rules of Conduct into her Ground One IAC claims. 167 Comm. Rep. at 22 (citing Jordan v. State, 1994 WL 466142, at *1 (Del. Aug. 25, 1994) (holding that conclusory allegations are legally insufficient to prove ineffective assistance of counsel) (citing Younger, 580 A.2d at 556). 28 Perkins was not the killer, and introduced the possibility that Perkins may have tried to help Murphy to explain why Perkins was covered in her blood.
Trial Counsel also questioned witnesses about other people who were seen in Canby Park that day as well as the other 911 calls that were placed around the park area in the early morning hours of July 23, 2015, including that another 911 call had been placed seconds after Murphy’s call, to raise reasonable doubt and suggest that perhaps that caller was the killer.
The record reflects that Trial Counsel prepared and presented Perkins’ chosen defense, despite the overwhelming evidence against him. . . The fact that the chosen strategy did not yield an acquittal does not make the Trial Counsel’s performance legally ineffective under Strickland.168
Perkins claims his Trial Counsel was ineffective for failing to refute
statements that he had a venereal disease. He relies on evidence from laboratory
tests conducted while he was in custody of the Department of Correction that yielded
results “basically within normal limits.”169 Because Trial Counsel did not present
his “negative test” results, Perkins claims that the Commissioner’s finding that he
chose his defense is incorrect. In support of this argument, Perkins focuses on his
July and September 2016 letters to Trial Counsel regarding “errors” in the
preliminary hearing transcripts. Those “errors” pertained to the laboratory tests
“showing he did not have a disease” and “false statements and mistakes made at his
168 Comm. Rep. at 23-24. 169 D99-102, D152-55. The laboratory tests to which Perkins referred to were taken at DOC in August 2015 and May 2016, but the exact nature of what he was tested for is unclear, except that the results were deemed “basically within normal limits.” Id. 29 preliminary hearing.”170 The Commissioner determined that Trial Counsel was not
deficient because he would have had no logical basis upon which to introduce the
results of the laboratory tests taken while Perkins was incarcerated.171 Additionally,
the Commissioner found that the failure to introduce the results was neither
objectively unreasonable nor was Perkins prejudiced by that failure.172 The Court
agrees.
The State’s theory regarding Perkins’ motive for the murder was that Perkins
believed Murphy had given him a venereal disease. Underwood’s testimony
established that in the days leading up to Murphy’s murder Perkins was angry with
Murphy because Perkins believed she had given him a venereal disease,173 and
Perkins told Underwood if she had, he was going to kill her.174 Perkins told the
police in his interview that two days before Murphy was murdered, he went to
Christiana Hospital because a rash had developed after having sex with Murphy the
week prior to her death.175 Perkins’ medical records from Christiana Hospital were
admitted into evidence at trial and confirmed he was treated for exposure to a
sexually transmitted disease.176
170 Objections at 3. 171 Comm. Rep. at 23-24. 172 Comm. Rep. at 42-43. 173 C312-13, C317, C321. 174 C312-13, C317. 175 C136, C150-54, C157-58. 176 C583-84; D75. 30 Despite all this evidence, Perkins argues that his “normal” test results would
have disproved the State’s motive theory. He is incorrect and misses the point. The
fact that Perkins did not actually have a venereal disease does not undermine the
State’s motive theory. Perkins’ belief that Murphy had given him a venereal disease
was the reason he wanted to kill her. The Court agrees with the Commissioner’s
determination that “the fact that Perkins may have tested ‘normal’ after the date of
the murder has no bearing on his belief or state of mind at the time of [the]
murder.”177
It is clear from the record, Trial Counsel prepared and presented Perkins’
chosen defense. On de novo review, the Court agrees with and adopts the
Commissioner’s finding and determination on Ground One that Perkins fails to
establish IAC under either prong of Strickland.
ii. Ground Two: Trial Counsel’s communications were not deficient
Perkins contends that Trial Counsel failed to communicate with him and did
not promptly comply with his requests for legal information.178 Like his claim for
failure to choose a defense, the Commissioner rejected it as conclusory and for
177 Comm. Rep. at 26. 178 C802-03, C807-08. 31 failing to meet either prong under Strickland.179 She also concluded that the record
reflects Perkins’ contention is factually untrue.180 The Court agrees.
On de novo review, the Court finds ample support in the record that Trial
Counsel communicated with Perkins through letters, at court proceedings, and at in-
person meetings.181 Trial Counsel reviewed the evidence with Perkins on numerous
occasions182 and had multiple discussions regarding trial strategy.183 Additionally,
immediately prior to trial, Trial Counsel communicated with Perkins regarding
witness statements that implicated him in the killing as well as all the evidence the
State intended to present at trial.184 The notion that Trial Counsel failed to “respond
promptly” is unfounded.
The Court adopts the Commissioner’s finding and determination on Ground
Two that mere allegations of failing to communicate are insufficient to demonstrate
that counsel’s performance was deficient or prejudicial under Strickland.
iii. Ground Three: Perjury First Degree; and Ground Four: “Prosecutorial Misconduct”
In Ground Three, Perkins argues that his Trial Counsel should not have
allowed the State’s witnesses to swear falsely and give false statements during their
179 Comm. Rep. at 26. 180 Id. 181 See e.g. C82, C86-87, C101-04, C108, C120-22, C123-25, D89-91, D97-98, D103, D150-51, D156. 182 C102-04. 183 D89-91, C82, C86-86, C101-05, C108, C120-25. 184 D90-91. 32 testimony.185 In Ground Four, he makes a similar conclusory statement that the
prosecution allowed the “false” statements to be presented to the jury and therefore
misled the jury with “untruthfulness” during trial.186 Since both grounds (perjury
and prosecutorial misconduct) stem from the same factual findings, the Court
consolidates the review below.
The Commissioner correctly determined that the claims asserting false
statements, perjury, and prosecutorial misconduct are procedurally barred under
Rule 61(i)(3) for failing to raise them on direct appeal.187 Because these claims were
not raised on direct appeal, the Commissioner recast them as IAC claims and
conducted a Strickland analysis.
With regard to Perkins’ argument that his Counsel should be “punished” for
allowing the State’s prosecutors to perpetuate “perjury,” the Court reviews Trial
Counsel’s decision not to object to the alleged perjury and prosecutorial misconduct
and Appellate Counsel’s decision to not object on appeal under a Strickland. Thus,
Perkins must demonstrate that his counsel’s performance was (1) objectively
185 C802, C807. By objecting to the Commissioner’s characterization of Perkins’ claims as IAC claims, Perkins is essentially arguing in favor of a procedural bar. 186 Id. 187 Id. at 29 (citing Ruffin v. State, 2019 WL 719038, at *2 (Del. Feb 19, 2019) (holding that claims of prosecutorial misconduct not raised on direct appeal are procedurally barred under Rule 61(i)(3)); see also Reeder v. State, 2006 WL 1210986, at *2 (Del. May 3, 2006) (holding that perjury claims raised for the first time on a motion for postconviction relief are procedurally barred under Rule 61(i)(3)). 33 unreasonable and (2) there was a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”188
Rule 61 Counsel in their Motion to Withdraw conducted a thorough review of
both Trial Counsel’s and Appellate Counsel’s responsibility to raise the perjury and
prosecutorial misconduct claims during trial and on appeal and found the claims
were meritless.189 The Commissioner found the same.190
In support of his argument, Perkins again points to Underwood’s prior
inconsistent statement. But, the Court has already addressed this inconsistency and
finds that on de novo review Trial Counsel was not ineffective and Perkins was not
prejudiced because he used Underwood’s inconsistent statement to impeach
Underwood at trial.191
Perkins also objects to the Commissioner’s finding that “Detective Bucksner
did not intentionally lie at Perkins’ preliminary hearing.”192 Perkins asserts (for the
first time) that during his preliminary hearing when Detective Bucksner was asked
by Trial Counsel about Underwood’s statements to investigators, Detective
Bucksner testified that Underwood told him Perkins made a statement saying “you
188 Strickland, 466 U.S. at 694. 189 D.I. 116-118. Anthony Figliola served as Perkins’ Trial and Appellate Counsel. However, because he operated in a different capacity for each of his roles, the Court will review his conduct as Trial and Appellate Counsel separately. 190 Comm. Rep. at 32. 191 Supra pp 25-26. 192 Objections at 5. 34 know, I got her.”193 Perkins claims this testimony is false because the transcript from
Underwood’s police interview never referenced any statements by Perkins that he
“got her.”194 This is of no consequence. It is correct that Detective Bucksner
testified at Perkins’ preliminary hearing that Underwood told him Perkins said, “I
got her” when Underwood saw Perkins at the 4th Street McDonald’s the day
following the murder.195 But, at trial, neither Detective Bucksner nor Underwood
testified that Perkins said, “I got her.” Luckily for Perkins, the jury never heard this
evidence.196
As Rule 61 Counsel correctly notes:
Any inconsistencies in prior statements and the testimony at trial do not give rise to a postconviction claim. Upon a review of the record, the prosecution did not mislead the jury or engage in misconduct. The prosecutor asked the witnesses questions, to which they responded. Trial counsel had an opportunity to cross-examine witnesses regarding any inconsistencies in their testimony from prior statements.197
The Court agrees with Rule 61 Counsel and adopts the Commissioner’s
determination that Perkins’ IAC claims regarding perjury and prosecutorial
misconduct are without merit and fail Strickland.198
193 Id. 194 Id. 195 C61-62. 196 See generally, C309-327, C328-331. 197 Id. 198 Comm. Rep. at 32. 35 iv. Ground Five: “The Use of False Evidence”
1. Trial Counsel was not unreasonable when deciding not to test some of Perkins’ clothing for DNA
Perkins argues that Trial Counsel should have presented evidence that some
of his clothing was not tested for DNA, and the use of such evidence at trial was
“false evidence.”199 The Commissioner found that, as a free-standing claim,
Perkins’ “use of false evidence” assertion “is procedurally barred under Rule
61(i)(3) because he failed to raise it in the proceedings leading to his conviction, and
as such, should be summarily dismissed.”200 The Court agrees. But the
Commissioner gave Perkins the benefit of the doubt and reviewed this claim on its
merits.201
While it is true the State did not test all of Perkins’ clothing for DNA, as the
Commissioner correctly notes, “Delaware law does not require that the State perform
any specific testing on the physical evidence it gathers.”202 Trial Counsel was not
ineffective for failing to raise an objection because such an objection would have
199 C803, C808; D80-88. 200 Comm. Report. at 33. 201 Comm. Rep. at 34 (“In his subsequent pro se filings, however, Perkins attempts to couch the same ‘use of false evidence’ argument into one of ineffective assistance of counsel by claiming that Trial Counsel was ineffective for failing to (i) present evidence that some of his clothing was not tested for DNA; (ii) object to police testimony that his blue shirt and keychain had blood stains on them; (iii) object to police testimony that he was wearing orange sweatpants over his blood- stained blue sweatpants; and (iv) file a motion to suppress with respect to certain evidence.”). 202 Dennis v. State, 2013 WL 1749807, at *3 (Del. Apr. 23, 2013) (citing Anderson v. State, 1999 WL 504332, at *3 (Del. Mar. 18, 1999); Comm. Rep. at 36. 36 been meritless. Lindauer testified with specificity regarding which items were tested
for DNA, and the DNA tests were performed to determine whether the blood on the
items tested was Murphy’s.203
The State did not elicit “false evidence” by admitting into evidence Corporal
Vice’s observations regarding the physical evidence. Perkins’ argument is that the
photos of the clothing presented to the jury showed “no visible blood,” and if his
Trial Counsel raised this, it would “prove” the State introduced false evidence.204
Perkins’ claim is without merit. The testimony of the police officer who collected
Perkins’ clothing at the time of his arrest testified about what he observed: what
appeared to be dried blood on the keychain, knife blade, long-sleeve thermal t-shirt,
blue t-shirt, blue sweatpants, and boots.205 Although the blue t-shirt Perkins wore
under the gray long-sleeve thermal t-shirt was not tested for blood or DNA, this does
not make it “false.” Witnesses are not precluded from testifying about what they
observed simply because the photographs of the clothing do not show signs of visible
blood.
Although the orange sweatpants were not tested for blood or DNA, Kish’s
testimony as to what he observed on the sweatpants was properly admitted. The
same is true of Corporal Vice’s testimony—that Perkins was wearing orange
203 C473-97. 204 Objections at 9. 205 C400-10. 37 sweatpants over his blue sweatpants at the time of his arrest, he observed “blood all
over the blue sweatpants,” and when he pulled the orange sweatpants down slightly,
he saw “a bunch of blood, fresh blood, [not] dried up blood,” in Perkins’ pocket.206
This is not “false evidence,” and Trial Counsel would have had no good faith basis
to file a motion to suppress as to any of this testimony.
The Commissioner determined that Trial Counsel was not ineffective because
he failed to object to the introduction of Perkins’ clothing when there was not a basis
for the objection.207 The Court agrees.
2. Trial Counsel was not deficient by failing to obtain a voice expert
Perkins claims the 911 call was a “use of false evidence” because he disputes
that the male voice on the call was his and takes issue with the testimony of his
probation officer who identified his voice.208 Perkins contends his Trial Counsel
was ineffective for failing to investigate and arrange for a voice expert to refute that
evidence and testify that the voice on the 911 call was not his.209 The Commissioner
deemed this claim procedurally barred under Rule 61(i)(4),210 the Commissioner
states:
206 C353. 207 Id. at 37. 208 D83-88. 209 Id.; D.I. 169(A). 210 Comm. Rep. at 38 (“The issue regarding the admissibility of the testimony of Perkins’ probation officer regarding his identification of Perkins’ voice on the 911 call was previously adjudicated by this Court and is therefore barred by Rule 61(i)(4). No Rule 61 exceptions apply.”). 38 [t]he issue regarding the admissibility of the testimony of Perkins’ probation officer regarding his identification of Perkins’ voice on the 911 call was previously adjudicated by this Court and is therefore barred by Rule 61(i)(4). No Rule 61 exceptions apply.211
Perkins perseverates, objecting now to the Commissioner’s explanation that
the decision to call a voice expert was well within Trial Counsel’s discretion and his
decision not to do so was not ineffective.212 Perkins maintains that expert testimony
would have “prove[d] the use of false evidence, since John French is the only witness
claiming it’s my voice who isn’t a voice expert and I claim it is not my voice.”213
The Commissioner correctly determined that Trial Counsel’s decision not to
call a voice identification witness fails under Strickland because it is unlikely that
such a witness would have changed the result of the trial.214 The jury heard on the
audiotape of the 911 call the speaker refer to himself as “G,” and Underwood
testified Perkins went by this nickname.”215 The jury heard Underwood say he met
Perkins through a friend named “Jimmy,” and the male speaker makes reference to
a “Jim” on that 911 call.216 Finally, the jury heard Perkins’ voice when portions of
211 Comm. Rep. at 38 (internal citations omitted). 212 Comm. Rep. at 39. 213 C803-08. 214 Comm. Rep. at 39. 215 C310-12, C576. 216 Id. 39 his interview were played during the trial.217 The Court finds this objection without
merit and agrees with the Commissioner’s Report.
3. There was no suppression issue at the time of the arrest
Perkins claims that Trial Counsel was ineffective for failing to file a motion
to suppress his warrantless arrest in violation of his Fourth and Fourteenth
Amendment rights.218 He argues Appellate Counsel was likewise ineffective for
failing to raise this issue on direct appeal.219 The Commissioner determined that this
claim is without merit because there was sufficient probable cause to arrest Perkins
and the search was incident to his arrest.220 Murphy’s body was found on the
morning of July 23, 2015, at approximately 8:00 a.m., and Perkins was arrested at
approximately 5:30 p.m.221 A search warrant was executed at 7:57 p.m.222 During
that timeframe, enough evidence was gathered to establish probable cause.
Detective Bucksner did not testify that Perkins was not a suspect at the time of his
arrest; to the contrary he stated that at the time the investigators first found Murphy’s
217 C581. 218 D83-88. Perkins contends all evidence seized was illegally obtained because it was not pursuant to a warrant. D87-88, D.I. 167(A). This contention is without merit. 219 Id., D.I. 169(A). 220 Comm. Rep. at 47. U.S. v. Robinson, 414 U.S. 218, 235 (1973) (“[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification . . . it is the fact of the lawful arrest which establishes the authority to search.”). 221 C29-30. 222 Id. 40 body, Perkins was not yet a suspect.223 Once the police identified the victim as
Murphy, Perkins became a suspect.224 Although on the video footage, Perkins and
Murphy do not appear to be fighting at the McDonald’s eight hours prior to her
murder, that does not, as Perkins argues, establish a lack of probable cause.225 The
video establishes they were together eight hours before the murder, shows them with
the McDonald’s cups, and shows Perkins with a green grocery bag.
There was no good faith basis for Trial Counsel to file a suppression motion
given the facts here. Trial Counsel recognized this and advised Perkins that there
was no colorable basis for filing a motion.226 Likewise, Appellate Counsel was not
deficient for failing to raise a meritless issue on appeal. For the foregoing reasons,
the Commissioner’s Report is ADOPTED and Perkins’ Motion for Postconviction
Relief is DENIED.
D. Rule 61 Counsel’s Motion to Withdraw
On February 19, 2021, Rule 61 Counsel filed a Motion to Withdraw as
Postconviction Counsel pursuant to Superior Court Criminal Rule 61(e)(6). Rule
61(e)(6) provides that:
[i]f counsel considers the movant’s claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may 223 C54-55. 224 Id. 225 Objections at 10-11. 226 D.I. 115-118. See Motion to Withdraw as Counsel along with the accompanying Memorandum in Support of Motion to Withdraw and Appendix. 41 move to withdraw. The motion shall explain the factual and legal basis for counsel’s opinion and shall give notice that the movant may file a response to the motion within 30 days of service of the motion upon the movant.227
Rule 61 Counsel represents that, after undertaking a thorough examination of the
record to evaluate Perkins’ claims, they determined the claims to be so lacking in
merit that Counsel cannot ethically advocate them.228 They are not aware of any
other substantial claims for relief available to Perkins.229 Because they find no
potential meritorious grounds on which to base a Rule 61 motion, they seek to
withdraw as counsel.230 The Court is satisfied that Rule 61 Counsel has made a
conscientious and thorough examination of the record and upon de novo review of
the record, the Court finds that Perkins’ Rule 61 Motion is devoid of any meritorious
postconviction claims. Consequently, Rule 61 Counsel’s Motion to Withdraw is
GRANTED.231
E. Perkins’ Motion to Substitute Rule 61 Counsel
Because Perkins’ Rule 61 Motion is denied, Perkins’ Motion for Substitute
Rule 61 Counsel is DENIED AS MOOT.
227 Super. Ct. Civ. R. 61(e)(6). 228 Id. 229 Id. 230 Id. 231 Matos v. State, 2015 WL 5719694, at *2 (Del. Sept. 29, 2015). 42 V. CONCLUSION
After careful and de novo review, the Court accepts and ADOPTS, in whole,
the Commissioner’s Report.232 Defendant’s Motion for Postconviction Relief is
DENIED, Rule 61 Counsel’s Postconviction Counsel’s Motion to Withdraw is
GRANTED, and Perkins’ Motion for Substitute Rule 61 Counsel is DENIED AS
MOOT.
IT IS SO ORDERED.
/s Jan R. Jurden Jan R. Jurden, President Judge
oc: Prothonotary cc: Carolyn S. Hake, Esquire Patrick J. Collins, Esquire Kimberly A. Price, Esquire Anthony A. Figliola, Jr., Esquire Gary Perkins (SBI #285925)
232 See Super. Ct. Crim. R. 62(a)(5)(iv) (“A judge may accept, reject, or modify, in whole or in part, the findings of fact or recommendations made by the Commissioner.”). 43
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