IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) ) v. ) ) DAVID A. WHITE, ) ID NO. 9604003355 ) Defendant. ) ) ) ) )
Date Decided: May 16, 2022 Date Corrected: August 30, 2022
Upon the Defendant’s Motion for Postconviction Relief Pursuant to Rule 61. DENIED.
CORRECTED ORDER
Brian L. Arban, Esquire, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware, 19801, Attorney for the State of Delaware.
David A. White, Pro Se.
SCOTT, J.
1 INTRODUCTION
Before the Court is Claimant David White’s (“White”) Motion for
Postconviction Relief pursuant to Rule 61. The Court has review White’s Motion
for Postconviction Relief, in addition to the State of Delaware’s (“State”) opposition.
For the following reasons, White’s Motion for Postconviction Relief is DENIED.
BACKGROUND
On May 13, 1996, a Superior Court grand jury indicted David White for
murder in the first degree, possession of a deadly weapon during the commission of
a felony (“PDWDCF”), and conspiracy in the first degree. On August 22, 1997,
after a nine-day trial, a jury found White guilty of murder in the first degree and
PDWDCF, however, acquitted him on the conspiracy charge.
On November 7, 1997, the Superior Court sentenced White to life
imprisonment for the murder in the first degree and five years at Level V
imprisonment followed by six months of Level IV supervision for the PDWDCF.
White appealed to the Delaware Supreme Court and his convictions and sentences
were affirmed on November 16, 1998.
After his convictions and sentences were affirmed, White filed a pro se motion
for transcripts, which this Court denied on February 20, 2001. White appealed. The
2 Delaware Supreme Court dismissed his case because it lacked jurisdiction over an
interlocutory appeal.
On August 30, 2002, White filed a postconviction motion for additional DNA
testing and this Court denied the motion on October 31, 2002 because the DNA
evidence “did positively match the defendant” and any additional testing would be
cumulative.
White appealed the denial for additional DNA testing to the Delaware
Supreme Court and the Supreme Court affirmed the decision.
Thereafter, White filed motions for transcripts and for sentence modification
and this Court denied his requests. White did not appeal those denials.
On September 13, 2021, White filed a pro se motion for postconviction
relief pursuant to Superior Court Criminal Rule 61 and included a memorandum of
law. On December 16, 2021, the State responded to his motion and on April 4,
2022, White replied.
DEFENDANT’S ASSERTIONS
In White’s present motion, he states in previous motions he has repeatedly
argued that his counsel was wholly and totally ineffective and that his trial counsel
never properly challenged chain of custody violations regarding the DNA evidence.
However, in this motion, White does not assert any claims to ineffective assistance
of counsel other than using the buzz words in the preceding sentence. Instead, White 3 argues that a witness the State used against him, Mr. Devon Scott (“Mr. Scott”),
recanted the incriminating statements made against White. White asserts such
evidence should be considered newly disclosed exculpatory recanted statements,
entitling him to postconviction relief because of Purnell v. State. Further, White
argues that Mr. Scott recanting his statements should, at the least, warrant an
evidentiary hearing.
DISCUSSION
Before addressing the merits of any postconviction relief claim, the Court
must first determine whether the defendant has met the procedural requirements of
Superior Court Criminal Rule 61 and is not procedurally barred.1 If a procedural bar
exists, then the Court will not consider the merits of the postconviction claim. 2
Rule 61(i)(l) bars relief if the motion is filed more than one year after the
judgment of conviction is final or, if it asserts a retroactively applicable right that is
newly recognized after the judgment of conviction is final, more than one year after
the right is first recognized by the Supreme Court of Delaware or by the United
States Supreme Court.3 White’s Motion is untimely as he filed this Motion nearly
23 years after his conviction became final, thus is barred by Rule 61(i)(1). Rule
1 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 2 Id. 3 Super. Ct. Crim. R. 61(i)(1). 4 61(i)(2) prohibits second or subsequent motions. Since this Motion is the second for
White, Rule 61 (i)(2) would ordinarily bar his Motion.4 Rule 61(i)(3) bars relief if
the motion includes claims not asserted in the proceedings leading to the final
judgment.5 This bar is not applicable because Defendant claims newly discovered
evidence, which could not have been raised in any direct appeal. Finally, Rule
61(i)(4) bars relief if the motion is based on a formerly adjudicated ground—this bar
is also inapplicable in the current case.6
Under Rule 61, however, none of these four procedural bars applies to a claim
that pleads “with particularity that 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.”7
Similarly, Rule 61 provides in pertinent part: “A second or subsequent motion
under this rule shall be summarily dismissed, unless the movant was convicted after
a trial and the motion ... pleads with particularity that 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.”8
4 Super. Ct. Crim. R. 61(i)(2). 5 Super. Ct. Crim. R. 61(i)(3). 6 Super. Ct. Crim. R. 61(i)(4). 7 Super. Ct. Crim. R. 61(i)(5). 8 Super. Ct. Crim. R. 61(d)(2)(i). 5 Generally, the law favors the finality of criminal judgments after the
exhaustion of applicable post-trial motions, appeals and collateral proceedings. In
the matter, White has exhausted remedies of a direct appeal to the Delaware Supreme
Court, a motion for postconviction relief in this Court. There is an exception,
however, on public policy grounds where there is particular new evidence that
creates a strong inference that you are actually innocent in fact of the acts underlying
the charges of which you were convicted. A defendant shall not be denied the right
to prove actual innocence based on new facts. The bar for creating a strong inference
in the opinion of the Court that a defendant is actually innocent is exceedingly high.
The mere assertion of actual innocence will not suffice. Innocence of the “acts
underlying the charges” requires “more than innocence of intent; it requires new
evidence that a person other than the petitioner committed the crime.”9
The most recent Delaware Supreme Court case addressing actual innocence
in fact is Purnell v. State.10 In Purnell, the Delaware Supreme Court found that
certain critical evidence was not obtained or presented by trial counsel at trial. The
Supreme Court found that this evidence was “new” under the language of Rule 61
and included: ballistic evidence that favored the defendant; an affidavit containing a
9 State v. Taylor, 2018 WL 3199537, at *7 (Del. Super. June 28, 2018), aff'd, 206 A.3d 825 (Del. 2019). 10 254 A.3d 1053, 2021 WL 2470511 (Del. June 17, 2021).
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) ) v. ) ) DAVID A. WHITE, ) ID NO. 9604003355 ) Defendant. ) ) ) ) )
Date Decided: May 16, 2022 Date Corrected: August 30, 2022
Upon the Defendant’s Motion for Postconviction Relief Pursuant to Rule 61. DENIED.
CORRECTED ORDER
Brian L. Arban, Esquire, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware, 19801, Attorney for the State of Delaware.
David A. White, Pro Se.
SCOTT, J.
1 INTRODUCTION
Before the Court is Claimant David White’s (“White”) Motion for
Postconviction Relief pursuant to Rule 61. The Court has review White’s Motion
for Postconviction Relief, in addition to the State of Delaware’s (“State”) opposition.
For the following reasons, White’s Motion for Postconviction Relief is DENIED.
BACKGROUND
On May 13, 1996, a Superior Court grand jury indicted David White for
murder in the first degree, possession of a deadly weapon during the commission of
a felony (“PDWDCF”), and conspiracy in the first degree. On August 22, 1997,
after a nine-day trial, a jury found White guilty of murder in the first degree and
PDWDCF, however, acquitted him on the conspiracy charge.
On November 7, 1997, the Superior Court sentenced White to life
imprisonment for the murder in the first degree and five years at Level V
imprisonment followed by six months of Level IV supervision for the PDWDCF.
White appealed to the Delaware Supreme Court and his convictions and sentences
were affirmed on November 16, 1998.
After his convictions and sentences were affirmed, White filed a pro se motion
for transcripts, which this Court denied on February 20, 2001. White appealed. The
2 Delaware Supreme Court dismissed his case because it lacked jurisdiction over an
interlocutory appeal.
On August 30, 2002, White filed a postconviction motion for additional DNA
testing and this Court denied the motion on October 31, 2002 because the DNA
evidence “did positively match the defendant” and any additional testing would be
cumulative.
White appealed the denial for additional DNA testing to the Delaware
Supreme Court and the Supreme Court affirmed the decision.
Thereafter, White filed motions for transcripts and for sentence modification
and this Court denied his requests. White did not appeal those denials.
On September 13, 2021, White filed a pro se motion for postconviction
relief pursuant to Superior Court Criminal Rule 61 and included a memorandum of
law. On December 16, 2021, the State responded to his motion and on April 4,
2022, White replied.
DEFENDANT’S ASSERTIONS
In White’s present motion, he states in previous motions he has repeatedly
argued that his counsel was wholly and totally ineffective and that his trial counsel
never properly challenged chain of custody violations regarding the DNA evidence.
However, in this motion, White does not assert any claims to ineffective assistance
of counsel other than using the buzz words in the preceding sentence. Instead, White 3 argues that a witness the State used against him, Mr. Devon Scott (“Mr. Scott”),
recanted the incriminating statements made against White. White asserts such
evidence should be considered newly disclosed exculpatory recanted statements,
entitling him to postconviction relief because of Purnell v. State. Further, White
argues that Mr. Scott recanting his statements should, at the least, warrant an
evidentiary hearing.
DISCUSSION
Before addressing the merits of any postconviction relief claim, the Court
must first determine whether the defendant has met the procedural requirements of
Superior Court Criminal Rule 61 and is not procedurally barred.1 If a procedural bar
exists, then the Court will not consider the merits of the postconviction claim. 2
Rule 61(i)(l) bars relief if the motion is filed more than one year after the
judgment of conviction is final or, if it asserts a retroactively applicable right that is
newly recognized after the judgment of conviction is final, more than one year after
the right is first recognized by the Supreme Court of Delaware or by the United
States Supreme Court.3 White’s Motion is untimely as he filed this Motion nearly
23 years after his conviction became final, thus is barred by Rule 61(i)(1). Rule
1 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 2 Id. 3 Super. Ct. Crim. R. 61(i)(1). 4 61(i)(2) prohibits second or subsequent motions. Since this Motion is the second for
White, Rule 61 (i)(2) would ordinarily bar his Motion.4 Rule 61(i)(3) bars relief if
the motion includes claims not asserted in the proceedings leading to the final
judgment.5 This bar is not applicable because Defendant claims newly discovered
evidence, which could not have been raised in any direct appeal. Finally, Rule
61(i)(4) bars relief if the motion is based on a formerly adjudicated ground—this bar
is also inapplicable in the current case.6
Under Rule 61, however, none of these four procedural bars applies to a claim
that pleads “with particularity that 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.”7
Similarly, Rule 61 provides in pertinent part: “A second or subsequent motion
under this rule shall be summarily dismissed, unless the movant was convicted after
a trial and the motion ... pleads with particularity that 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.”8
4 Super. Ct. Crim. R. 61(i)(2). 5 Super. Ct. Crim. R. 61(i)(3). 6 Super. Ct. Crim. R. 61(i)(4). 7 Super. Ct. Crim. R. 61(i)(5). 8 Super. Ct. Crim. R. 61(d)(2)(i). 5 Generally, the law favors the finality of criminal judgments after the
exhaustion of applicable post-trial motions, appeals and collateral proceedings. In
the matter, White has exhausted remedies of a direct appeal to the Delaware Supreme
Court, a motion for postconviction relief in this Court. There is an exception,
however, on public policy grounds where there is particular new evidence that
creates a strong inference that you are actually innocent in fact of the acts underlying
the charges of which you were convicted. A defendant shall not be denied the right
to prove actual innocence based on new facts. The bar for creating a strong inference
in the opinion of the Court that a defendant is actually innocent is exceedingly high.
The mere assertion of actual innocence will not suffice. Innocence of the “acts
underlying the charges” requires “more than innocence of intent; it requires new
evidence that a person other than the petitioner committed the crime.”9
The most recent Delaware Supreme Court case addressing actual innocence
in fact is Purnell v. State.10 In Purnell, the Delaware Supreme Court found that
certain critical evidence was not obtained or presented by trial counsel at trial. The
Supreme Court found that this evidence was “new” under the language of Rule 61
and included: ballistic evidence that favored the defendant; an affidavit containing a
9 State v. Taylor, 2018 WL 3199537, at *7 (Del. Super. June 28, 2018), aff'd, 206 A.3d 825 (Del. 2019). 10 254 A.3d 1053, 2021 WL 2470511 (Del. June 17, 2021). 6 recantation of a statement by a fellow inmate of the defendant that the defendant had
confessed to the offense while they were both in jail; evidence inculpating two
witnesses who testified against the defendant at trial (including a former client of
trial counsel and the defendant's fellow inmate who recanted); impeachment
evidence from the parents of the co-defendant who testified against the defendant at
trial; and, impeachment evidence that was not raised on cross-examination of a key
government witness due to trial counsel's conflict of interest.
Our Supreme Court observed that “legitimate claims of actual innocence are
exceedingly rare. Indeed, this is the first case where a defendant has satisfied the
actual innocence exception to the procedural bars in Rule 61. Because they are so
rare, the actual innocence exception, in our view, poses no threat to our State's
interest in finality. We believe the result in this case strikes the appropriate balance
between our justice system's interests in “finality, comity and conservation of
judicial resources, and the overriding individual interest in doing justice in the
‘extraordinary case.’”11
While White makes asserts his case closely resembles Purnell, this Court does
not agree. As mentioned, a finding of actual innocence is an extraordinary case, and
such a finding is exceedingly rare. Our Supreme Court found actual innocence when
11 Id. at *55. 7 exculpatory evidence was discovered. The recanted statement did not stand alone,
like it does in this case. Further, even in light of the several other factors the court
considered, it relied on the recanted statement contained in an affidavit. The
recanted statement contained in an affidavit gives assurance of reliability. White,
here, simply claims a key witness the State used against him recanted his statement.
This alone is a mere allegation of actual innocence, therefore, White cannot
overcome to procedural bars of Rule 61.
Even if the recanted statement contained a scintilla of reliability, Mr. Scott’s
testimony was not the only evidence presented to the jury, therefore the recantation
is not likely to change the result if a new trial was ordered. DNA testing linked
White to the murder. In addition to DNA evidence, Mr. Brooks, an acquaintance of
White, testified that White confessed to committing the murder and his girlfriend at
the time, Ms. Ellerbee corroborated that testimony. On cross-examination, the State
questioned White’s alibi witnesses about their failure to provide the police with
White’s alibi. His family claimed the night of the murder, White was present at a
family gathering to watch a televised wrestling match. The State then presented
evidence that on the night of murder, there was not a televised wrestling match
underlining the alibi. Further, on cross-examination of White, the State confronted
White about inconsistent testimony regarding hiring a prostitute and how he claimed
he had not left his house for four to five months after being released from prison.
8 With the evidence presented at trial, putting aside Mr. Scott’s alleged recanted
testimony, it is likely the result of a new trial would be the same as White’s first trial.
CONCLUSION
Therefore, for the reasons stated above, the Defendant’s Motion for
Postconviction Relief is DENIED.
IT IS SO ORDERED.
______________________
Judge Calvin L. Scott, Jr.