      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                IN AND FOR NEW CASTLE COUNTY

LEON POWELL,                           )
                                       )
       v.                              )
                                       )
STATE OF DELAWARE,                      ) ID NO. 82007195D1
                                       )


                    Date Submitted: February 16, 2015
                     Date Decided: March 16, 2015

       On Defendant’s Motion for Postconviction Relief. DENIED.
      On Defendant’s Motion for Appointment of Counsel. DENIED.

                                   ORDER




Leon Powell, pro se Appellant.



Joseph S. Grubb, Esq., Deputy Attorney General, Delaware Department of Justice,
Carvel State Office Building, 820 N. French Street, Wilmington, Delaware 19801.
Attorney for the State.




Scott, J.
                                          Introduction

         Upon remand from the Delaware Supreme Court, the Honorable John A.

Parkins, Jr. entered an order on February 16, 2015, recusing himself from decision

on Defendant Leon Powell’s (“Defendant”) Motion for Postconviction Relief and

Motion for Appointment of Counsel.               Now before the Court are Defendant’s

Motion for Postconviction Relief and Motion for Appointment of Counsel, filed on

October 7, 2014. The relief sought by Defendant is for a reduced sentence in

accordance with Murder Second Degree instead of Murder First Degree. For the

following reasons, Defendant’s Motion for Postconviction Relief and Motion for

Appointment of Counsel are DENIED.

                                          Background

         Defendant was indicted by a Delaware grand jury in 1982 on the charge of

non-capital Murder First Degree.1

         During trial, Defendant challenged the inadmissibility of a polygraph

examination Defendant had taken, which was administered by the Public

Defender’s Office. The Court conducted a colloquy with Defendant, his counsel,

and the State, outside the presence of the jury to resolve this matter. As a result of

the colloquy, the Court ruled that the result of Defendant’s polygraph were

inadmissible.



1
    Pursuant to 11 Del. C. § 636 of the Delaware Code of 1974.
                                             2
      Defendant was subsequently convicted by a jury on the charge of Murder

First Degree for intentionally causing the death of Aaron Portlock on November 2,

1982 by stabbing him in the back. On June 16, 1983, Defendant was sentenced on

the Murder First Degree conviction to life imprisonment without the possibility of

probation or parole.

      On June 24, 1983, Defendant appealed his conviction to the Delaware

Supreme Court on the basis that the trial court erred in denying Defendant’s

motion for a mistrial prompted by the State’s conduct during its cross-examination

of Defendant at trial.   The Delaware Supreme Court issued a mandate affirming

Defendant’s conviction on October 17, 1983.

      On October 7, 2014, Defendant filed a pro se Motion for Postconviction

Relief and Motion of Appointment of Counsel. The Honorable John A. Parkins, Jr.

denied Defendant’s motion for appointment of counsel and dismissed his motion

for postconviction relief on November 24, 2014. Defendant both appealed the

Court’s decision to the Delaware Supreme Court and filed a Motion to Recuse

Judge Parkins in Superior Court. Unopposed by the State, the Delaware Supreme

Court remanded Defendant’s motion for postconviction relief and motion for

appointment of counsel to Superior Court for decision on January 16, 2015.

                               Standard of Review

      Upon a motion for postconviction relief, the Court must first determine if

any of four procedural bars to relief apply under Del. Super. Ct. Crim. Rule 61(i)
                                     3
before it can consider the merits of the underlying claim. 2                   A motion for

postconviction relief can be barred for time limitations, repetitive motions,

procedural defaults, and former adjudications.3 A motion exceeds time limitations

if it is filed more than one year after the conviction is finalized or they assert a

newly recognized, retroactively applied right more than one year after it is first

recognized.4 A motion is considered repetitive and therefore barred if it asserts

any ground for relief “not asserted in a prior postconviction proceeding.”5

Repetitive motions are only considered if it is “warranted in the interest of

justice.”6 Grounds for relief “not asserted in the proceedings leading to the

judgment of conviction” are barred as procedural default unless movant can show

“cause for relief” and “prejudice from [the] violation.”7 Grounds for relief

formerly adjudicated in the case, including “proceedings leading to the judgment

of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas

corpus hearing” are barred. 8         Former adjudications are only reconsidered if

“warranted in the interest of justice.”9




2
  Panuski v. State, 41 A.3d 416, 419 (Del. 2012); Younger v. State, 580 A.2d 552, 554 (Del.
1990).
3
  Super. Ct. Crim. Rule 61(i)(1)-(4).
4
  Super. Ct. Crim. Rule 61(i)(1).
5
  Super. Ct. Crim. Rule 61(i)(2).
6
  Id.
7
  Super. Ct. Crim. Rule 61(i)(3).
8
  Super. Ct. Crim. Rule 61(i)(4).
9
  Id.
                                            4
       The current version of Rule 61(i)(1), which governs the procedural bar

regarding time limitations, states, “[a] motion for postconviction relief may not be

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.” 10 The one

year limitation applies to cases in which the judgment of conviction became final

after July 1, 2005.11 However, prior to its amendment, Rule 61(i)(1) provided

defendants three years after the judgment of conviction became final to file the

motion.12 “A judgment of conviction is final…[i]f the defendant files a direct

appeal or there is an automatic statutory review of a death penalty, when the

Supreme Court issues a mandate or order finally determining the case on direct

review.” 13

       According to Rule 61(i)(5), the Court may still consider an untimely motion

when the defendant asserts “a claim that the court lacked jurisdiction or [] a

colorable claim that there was a miscarriage of justice because of a constitutional

violation that undermined the fundamental legality, reliability, integrity or fairness




10
   Rule 61(i)(1).
11
   State v. Nave, 2005 WL 1953079, at *1, n.2 (Del. Super. July 29, 2005) aff'd, 888 A.2d 232
(Del. 2005).
12
   See Id.
13
   Rule 61(m)(2); Guy v. State, 82 A.3d 710, 715 (Del. 2013).
                                           5
of the proceedings leading to the judgment of conviction.14 However, this

fundamental fairness exception “is a narrow one and has been applied only in

limited circumstances, such as when the right relied upon has been recognized for

the first time after the direct appeal.” 15

                                       Discussion

       Both of Defendant’s motions are procedurally barred under Rule 61(i)(1) for

untimeliness. The judgment of conviction became final on the date of the Supreme

Court’s mandate, October 17, 1983. Under the pre-amendment version of Rule

61(i)(1), Defendant had until October 17, 1986 to file this motion; 16 however,

Defendant did not file his motions until October 7, 2014. Moreover, Defendant

has not asserted a retroactively applicable, newly recognized right.       Nor has

Defendant asserted “a colorable claim that there was a miscarriage of justice.”17

For these reasons, Defendant’s motion for postconviction relief and motion for

appointment of counsel are procedurally barred under Super. Ct. Crim. Rule

61(i)(1).

       Assuming arguendo that Defendant’s motion is not procedurally barred, it

nonetheless fails on the merits.          On this motion for postconviction relief,

Defendant asserts three grounds for relief: (1) Defendant was erroneously charged


14
   Rule 61(i)(5).
15
   Younger, 580 A.2d at 555.
16
   See Nave, 2005 WL 1953079.
17
   See Rule 61(i)(5).
                                          6
with Murder First Degree because there was no underlying felony offense to

support a conviction for felony murder, as required under 11 Del. C. § 636; (2) the

trial court abused its discretion by authorizing a polygraph for Defendant

conducted by the Public Defender’s Office when the results of the polygraph were

not admissible at trial because polygraphs are not considered scientifically reliable;

and (3) the State committed prosecutorial misconduct by consenting to the

defense’s administration of the polygraph of Defendant, despite knowing that the

results of the polygraph were inadmissible because polygraphs are not considered

scientifically reliable.

       Foremost, Defendant misinterprets the requirements for a charge of Murder

First Degree under 11 Del. C. § 636. Section 636(a) provides that a person is

guilty of murder in the first degree when any one of the following six enumerated

requirements is satisfied:

       (1) The person intentionally causes the death of another person;
       (2) While engaged in the commission of, or attempt to commit, or
       flight after committing or attempting to commit any felony, the person
       recklessly causes the death of another person.
       (3) The person intentionally causes another person to commit suicide
       by force or duress;
       (4) The person recklessly causes the death of a law-enforcement
       officer, corrections employee, fire fighter, paramedic, emergency
       medical technician, fire marshal or fire police officer while such
       officer is in the lawful performance of duties;
       (5) The person causes the death of another person by the use of or
       detonation of any bomb or similar destructive device;
       (6) The person causes the death of another person in order to avoid or
       prevent the lawful arrest of any person, or in the course of and in

                                       7
       furtherance of the commission or attempted commission of escape in
       the second degree or escape after conviction.

       In this case, Defendant misinterprets the scope of the legislative intent for §

636 as exclusively requiring the killing to be in the furtherance of the commission

of an underlying felony. While Defendant correctly characterizes the requirements

of felony murder, 18 his argument fails because felony murder is only one of the six

enumerated ways to satisfy a charge of Murder First Degree. Defendant was

properly charged with Murder First Degree for intentionally causing the death of

Aaron Portlock by stabbing him in the back because § 636(a)(1) provides that a

person is guilty of murder in the first degree when he intentionally causes the death

of another person. Therefore, the State was not required to assert or prove that

Defendant caused the death of Aaron Portlock in the furtherance of committing an

underlying felony. As such, Defendant’s argument fails on the merits. 19

       Furthermore, Defendant’s arguments as to the administration and

admissibility the polygraph also fail on the merits. It is well settled in Delaware

18
  See 11 Del. C. § 636(a)(2).
19
  In supplemental briefing, Defendant also asserts that he was wrongly charged with and
sentenced under capital Murder First Degree because there the indictment was reduced to non-
capital Murder First Degree, no special circumstances were presented to support a capital murder
conviction, and the jury was not death qualified. However, while Defendant correctly identifies
the requirements of a statutory aggravating factor and a death qualified jury for a charge of
capital murder in the first degree, Defendant again misinterprets 11 Del. C. § 636 as exclusively
providing for capital Murder First Degree. Section 636 provides only the requirements for
satisfying a charge of Murder First Degree, whereas 11 Del. C. § 4209 provides for the
determination of punishment upon conviction for Murder First Degree. Moreover, at all times,
Defendant was properly charged with, tried for and convicted of non-capital Murder First
Degree, which carries a mandatory sentences of life imprisonment without the possibility of
probation or parole.
                                            8
law that the results of polygraph examinations are “inadmissible for any purpose

because       their     scientific      reliability      has      not     been       established.”20

Similarly, polygraph evidence is never admissible if it is offered to establish that a

witness' version of the events is true.21 These rules reflect a legitimate concern that

jurors will assume that the results of the polygraph are accurate and will therefore

accept the witness' testimony as the truth. 22 In other words, the concern is that a

potentially unreliable polygraph test will take the place of the jury in assessing the

credibility of witnesses. 23 Thus, without prior agreement of the parties, polygraph

examinations are presumed inadmissible. 24




20
   Foraker v. State, 394 A.2d 208, 213 (Del. 1978) (citations omitted); see Melvin v. State, 606
A.2d 69, 71 (Del. 1992); Whalen v. State, 434 A.2d 1346, 1354 (Del. 1981). While several
federal courts were forced to abandon a strict rule prohibiting the admission of polygraph test
results after the United States Supreme Court decision in Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993), these courts have retained a strong suspicion
of polygraph evidence. See, e.g., United States v. Cordoba, 104 F.3d 225, 227–28 (9th Cir.
1997) (“With this holding, we are not expressing new enthusiasm for admission of unstipulated
polygraph evidence. The inherent problematic nature of such evidence remains....
[P]olygraph evidence has grave potential for interfering with the deliberative process.”); United
States v. Posado, 57 F.3d 428, 431–34 (5th Cir. 1995) (“[W]e do not now hold
that polygraph examinations are scientifically valid or that they will always assist the trier of
fact, in this or any other individual case.”).
21
   Capano v. State, 781 A.2d 556, 592 (Del. 2001).
22
   Id.
23
   See Holtzman v. State, 1998 WL 666722 (Del. July 27, 1998) (ORDER), Order at ¶ 14 (“A
fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’”); United
States v. Alexander, 526 F.2d 161, 168 (8th Cir. 1975) (“When polygraph evidence is offered in
evidence at trial, it is likely to be shrouded with an aura of near infallibility, akin to the ancient
oracle of Delphi.”).
24
   Whalen, 434 A.2d at 1354 (This holding preserves the rule prohibiting “the use of the results
of a polygraph test without prior agreement of the parties.”); see State v. Perry, 142 N.W.2d 573
(Minn. 1966) (holding any reference to a polygraph test, without prior agreement of the parties,
is improper).
                                              9
       In this case, the Court did not abuse its discretion in authorizing to

administration of Defendant’s polygraph by the Public Defender’s Office, nor was

it prosecutorial misconduct for the State to consent to the polygraph, despite the

presumption of inadmissibility. Defense counsel explained to Defendant that the

State was entitled to reject or ignore the results of the polygraph, and that if the

State exercised that right, the results would not be admissible at trial. 25 Moreover,

the State informed defense counsel prior to the examination that the polygraph was

not evidence, and that defense counsel could present the results of the polygraph to

the State, but the State made no promises as to whether it would stipulate to their

admissibility. 26 Thus, it was properly within the State’s discretion to reject the

polygraph results, regardless of briefing or an evidentiary hearing on the matter.27

Nonetheless, the State provided reasonable justification for its decision. 28 In that

vein, the trial court did not abuse its discretion by authorizing the polygraph

because the State had consented to it and it was within the State’s discretion to

stipulate to its admissibility. For these reasons, Defendant’s arguments regarding

the administration and admissibility of the polygraph examination fail on the

merits.

25
   Trial Transcript at 203-04.
26
   Id. at 204-05.
27
   See Whalen, 434 A.2d at 1354 (Prohibiting “the use of the results of a polygraph test without
prior agreement of the parties.”).
28
   During the colloquy to resolve this issue, the State offered that defense counsel presented it
with the polygraph results, which included both favorable and non-favorable results, and that the
State declined to accept the results of the polygraph entirely because it questioned the veracity of
polygraph examinations. Trial Transcript at 205.
                                             10
       Defendant also filed a motion for appointment of counsel.           Defendant

appears to argue that the Court's decision in Holmes v. State 29 created a newly-

recognized retroactive right to counsel in order to overcome the procedural bars

of Superior Court Criminal Rule 61(i), requiring this Court to appoint Defendant

counsel, as this is his first motion for postconviction relief. However, Defendant’s

argument misreads Holmes because the Delaware Supreme Court has held that

there is neither a federal nor a state constitutional right to counsel in a

postconviction proceeding. 30 The Delaware Supreme Court in Roten v. State31

held that

       The United States Supreme Court held in Martinez v. Ryan 32 that
       inadequate assistance of counsel during initial postconviction
       proceedings may establish cause for a defendant's procedural default
       of a claim of ineffective assistance of counsel at trial in pursuing
       federal habeas corpus relief. Contrary to [the defendant’s] contention,
       Martinez does not hold that there is a federal constitutional right to
       counsel in first postconviction proceedings. Furthermore, [the
       defendant] misreads this Court's decision in Holmes v. State. In
       Holmes, we held that the Superior Court abused its discretion in
       denying Holmes' motion for the appointment of counsel to assist him
       in his first postconviction proceeding. We remanded for the
       appointment of counsel under the Superior Court's new Criminal Rule
       61(e), which allows for the appointment of counsel in first
       postconviction proceedings. The rule was adopted May 6, 2013 and is
       not retroactive. We did not hold in Holmes that a right to counsel in
       first postconviction proceedings exists as a matter of Delaware
       constitutional law.33

29
   67 A.3d 1022 (Del. 2013).
30
   State v. Grayson, 2014 WL 4058485, at *3 (Del. Super. Aug. 14, 2014).
31
    80 A.3d 961 (Del. 2013).
32
   132 S.Ct. 1309 (2012).
33
   Roten, 80 A.3d at 961.
                                          11
         In this case, Defendant’s motion is procedurally time-barred under Rule

61(i)(1) for the reasons above. Moreover, the right to counsel on Defendant’s first

motion for postconviction relief under Holmes does not apply retroactively.34

Thus, Defendant has not asserted a retroactively applicable newly recognized right

to justify exception to the time bar. Furthermore, as discussed in addressing

Defendant’s substantive arguments, Defendant has not provided any factual

support or legally viable argument which would justify granting exception to the

time bar and the relief sought. Accordingly, Defendant has failed to satisfy his

burden for appointment of counsel.

                                          Conclusion


         For the foregoing reasons, Defendant’s Motion for Postconviction Relief and

Motion for Appointment of Counsel are DENIED.


IT IS SO ORDERED.


                                                    /s/ Calvin L. Scott
                                                    Judge Calvin L. Scott, Jr.




34
     See Holmes, 67 A.3d 1022; see Roten, 80 A.3d at 961.
                                            12
