IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
v. § ID No. 1109011777
ANTHONY GORDON, §
Defendant. §
ORDER

AND NOW TO WIT, this 8th day of Septernber, 2016, upon consideration
of Defendant’s Amended Motion for Post-Conviction Relief;l the Affidavit of Trial
Counsel;2 the State’s Response;3 Defendant’s Reply;4 the Commissioner’s Report
and Recommendation that Defendant’s Motion for Post-Conviction Relief be
DENIED;5 Defendant’s Appeal from Commissioner’s Findings of Fact and
Recornrnendations;6 and the record in this case, IT APPEARS THAT:

l. On January 23, 2013, Defendant Was brought to trial on two counts of
Rape Second and one count of Rape Fourth for acts that occurred When the Victim
Was less than sixteen years old. At trial, the State introduced testimony from the

victim, the investigating officers, and a» forensic DNA analyst from the Ofiice of

 

'D.I. 101.
21).1.103.
3 D.1.105.
4D.1.107.
5D.I.112.

6 D.1.113.

the Chief Medical Examiner (“OCME”).7 The DNA analyst testified that the DNA
testing established a greater than 99.9998 percent probability that Defendant was
the father of the victim’s child.8

2. Defendant’s trial counsel cross-examined the DNA analyst regarding the
three regions of the child’s DNA for which the DNA analyst could not determine a
profile,9 the DNA analyst’s failure to secure a new DNA sample from the child in
order to produce a complete DNA profile, and the possibility of evidence
tampering10 During closing argument, trial counsel emphasized the DNA
analyst’s testimony that she could determine a percentage of consistency between
the Defendant’s DNA and the child’s,ll but could not say that Defendant “is the
father.”12

3. After closing argument, the trial judge read the jury instructions As the
judge read the instructions, she noted a reference in the written instructions to the
complaining witness as a “victim.” The trial judge did not say the word “victim”

to the jury. The complaining witness was referred to by name.13 Once thejurjy left

 

7 D.1.52,53.

8 Id. 53 at 35;1637:6; 49:5-11.

9 The DNA analyst examined sixteen regions of DNA for comparison between the victim, the
victim’s child, and Defendant. D.I. 53 at 23-48. For three out of sixteen regions, the analyst
could not determine the child’s profile, and therefore, the Defendant could not be excluded as the
father based on those regions. ld. at 30:19-34:9.

10 Id. at 38-47.

“1¢1. at 48:1419:4.

12 Id. at 41 :7-47:14, 70:13-71:3 (emphasis added).

13 Id. at 78-90.

2

the courtroom to begin deliberation, the judge noted the error in the written
instructions to the State and the defense,14 and the written error was corrected
before copies of the written jury instructions were given to the jury.15

4. The jury found Defendant guilty of all counts, and Defendant was
sentenced on April 12, 2013, to 21 years of unsuspended time at Level 5.16
Defendant filed a direct appeal, and the Delaware Supreme Court affirmed the
judgment of conviction.17

5. On November 21, 2014, Defendant filed a Motion for Postconviction
Relief, and counsel was appointed to assist Defendant in the filing of his claims.18
Before submitting an amended postconviction motion, Defendant filed a Motion to
Compel, seeking to compel the victim and her child to undergo new DNA testing.19
In support of this request, Defendant questioned the reliability of the DNA
evidence produced at trial given the OCME’s mishandling of drug evidence in

other cases.20 The Commissioner denied Defendant’s Motion to Compel because

 

1414 at 91:16-23.

15 D.I. 32.

16 D.I. 43.

17 coram v. sme, 82 A.3d 729 (Del. 2013) (TABLE).

18 D.I. 31 91.

19 D.I. 97.

20 See, e.g., Aricidiacono v. State, 125 A.3d 677 (Del. 2015) (discussing the mishandling of drug
evidence at the OCME).

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the mishandling of drug evidence by the OCME does not establish a basis to call
into question the validity of the OCME’s DNA testing unit.21

6. Defendant’s Amended Motion asserts four grounds for relief based on
ineffective assistance of trial counsel: (1) counsel was ineffective for failing to
secure independent DNA testing; (2) counsel was ineffective for failing to
investigate a “sexomnia” defense; (3) counsel was ineffective for failing to
interview a potential witness; and (4) counsel was ineffective for failing to object
to the judge calling the victim a “victim” during trial.

7. On November 30, 2015, the Commissioner issued his Report and
Recommendation that Defendant’s Amended Motion for Post-Conviction Relief be
DENIED. Thereafter, Defendant filed the instant appeal, requesting review of
both the denial of the Motion to Compel and of the Motion for Post-Conviction
Relief.

NOW THEREFORE, after careful and de novo review of the record in this
action, and for the reasons stated in the Commissioner’s Report and
Recommendation that the Defendant’s Amended Motion for Post-Conviction

Relief be DENIED, and having considered the Defendant’s appeal thereof, IT IS

 

21 D.I. 100; see State v. Petty, 2014 WL 2536987, at *1 (Del. Super. May 22, 2014) (“In the
context of postconviction proceedings, the Court has the inherent discretionary authority under
Rule 61 to grant particularized discovery. A Rule 61 petitioner must demonstrate good cause.
Good cause is established ‘Where specific allegations before the court show reason to believe that
the petitioner may, if the facts are fully developed, be able to demonstrate that [defendant is]
entitled to relief`.”’ (first citing Dawson v. State, 673 A.2d 1186, 1197_98 (Del. 1996); then
quoting Bracy v. Gramley, 520 U.S. 899, 908_909 (1997)).

4

HEREBY ORDERED that the Commissioner’s Amended Report and
Recommendation is AFFIRMED, and Defendant’s Amended Motion for Post-
Conviction Relief is DENIED. For the reasons stated in the Commissioner’s June
30, 2015 Letter Order, the Commissioner’s denial of Defendant’s Motion to
Compel is AFFIRMED.

IT IS SO ORDERED.

 

 

M, President Judge

Prothonotary_Ori ginal

cc: Eric Zubrow, DAG
Benjamin Schwartz, Esq.
Ross Flockerzie, Esq.

