      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                           )
                                             )
       v.                                    )
                                             )
CLIFFORD WRIGHT,                             )
                                             )    Cr. ID. No. 0801010328
             Defendant.                      )
                                             )
                                             )

                          Submitted: November 24, 2014
                           Decided: February 12, 2015

            Upon Defendant’s Amended Motion for Postconviction Relief
                                  DENIED



                                    OPINION

Morgan T. Zurn, Deputy Attorney General, Department of Justice, Attorney for the
State.

Albert J. Roop, V, Esquire, Patrick J. Collins, Esquire, Collins & Roop, Attorneys
for Defendant.




JOHNSTON, J.
                 FACTUAL AND PROCEDURAL CONTEXT


      In June of 2006, Defendant Clifford Wright (“Wright”) resided with his

girlfriend, Tamela Gardner (“Gardner”), at Gardner’s home. Wright and Gardner

had a contentious relationship. After the relationship ended on or about July 1,

2006, Wright began harassing Gardner. Wright’s harassment culminated during

the early hours of July 9, 2006, when Wright snuck into Gardner’s home and

murdered Gardner and her friend Gabriel Gabrielli (“Gabrielli”) while they slept.

      The exact murder weapon used by Wright is unknown. However, Gardner

and Gabrielli suffered at least 8 and 11 injuries to the head, respectively, without

displaying any defensive wounds. Following the murders, Wright dragged the

bodies out of Gardner’s home and into Gardner’s van. Wright then drove the van

to Tweed’s Park, and set the van on fire. On July 13, 2006, the van, along with

Gardner and Gabrielli’s bodies, were found.

      On January 22, 2008, a grand jury indicted Wright for, among other crimes,

the murders of Gardner and Gabrielli. The State of Delaware (“State”) requested

the death penalty. Wright’s jury trial began on October 5, 2009, and concluded on

November 19, 2009. Wright was represented by Jerome M. Capone, Esquire and

Brian J. Chapman, Esquire (collectively “Trial Counsel”).

      At trial, the State called two key witnesses. The first was Robert Mahan

(“Mahan”), a convicted felon who shared a jail cell with Wright for five days in
                                         2
2008 at the Howard R. Young Correctional Institute. The second was Jennie

Vershvovsky, M.D. (“Dr. Vershvovsky”), the Assistant Medical Examiner for the

Delaware Office of the Chief Medical Examiner.

      Mahan testified that during the five days he and Wright shared a cell, they

discussed Wright’s background, Wright’s relationship with Gardner, and

eventually the murders of Gardner and Gabrielli.       There were two critically

important aspects of Mahan’s testimony. First, Mahan testified: “[Wright] said

Detective Abrams had told [Wright’s] brother that the weapon used against

[Gardner and Gabrielli] was a hammer and [Wright] proceeded to tell me…this

wasn’t the case at all…[Gardner and Gabrielli] were killed with a bat…an

aluminum [baseball] bat.” Second, Mahan testified that after Wright came back to

their shared jail cell from a meeting with Trial Counsel, Wright appeared pale. He

told Mahan: “[The State is] talking about executing me, taking my life.” Mahan, in

an attempt to calm Wright, told him not to worry because he did not commit the

murders, to which Wright responded: “But I did.”

      A few days later Dr. Vershvovsky testified at trial. Dr. Vershvovsky was the

forensic pathologist who conducted the autopsies of Gardner and Gabrielli. Dr.

Vershvovsky testified that the cause of death for both Gardner and Gabrielli was

“blunt force injury to [the] head.” Dr. Vershvovsky did not opine on the specific

object used to murder Gardner and Gabrielli, but did testify that: “It can be any


                                        3
blunt object which has a smooth, circular surface.” When confronted by Trial

Counsel on cross-examination as to whether a baseball bat could have been the

murder weapon, Dr. Vershvovsky testified that it was a possibility.

       At the close of trial, the jury returned a guilty verdict for all charges.1

Wright subsequently filed a Motion for a New Trial.

       Following the guilty verdict, but before ruling on Wright’s Motion for a

New Trial, the Superior Court held a penalty phase hearing from November 30 to

December 10, 2009. At the end of the penalty phase hearing the jury returned a

verdict of 7-5 in favor of death. On March 5, 2010, this Court sentenced Wright to

life in prison without parole for each conviction of first degree murder. 2

       Wright filed a timely appeal to the Delaware Supreme Court on March 31,

2010. Upon Wright’s motion, the Delaware Supreme Court remanded Wright’s

case to the Superior Court to rule on Wright’s motion for a new trial. On July 30,

2010, the Superior Court denied Wright’s Motion for a New Trial.3 Subsequently,

on October 24, 2011, the Delaware Supreme Court affirmed Wright’s conviction.4

       On August 23, 2012, Wright filed a motion for appointment of counsel to

pursue postconviction relief. The Superior Court granted the motion and appointed

1
  The jury found Wright guilty of four counts of first degree murder, five counts of possession of
a deadly weapon during the commission of a felony, first degree burglary, second degree arson,
noncompliance with conditions of a bond, aggravated harassment, third degree arson, and theft
of a motor vehicle.
2
  State v. Wright, 2010 WL 746240, at *1 (Del. Super.).
3
  State v. Wright, 2010 WL 3005445, at *1 (Del. Super.).
4
  Wright v. State, 31 A.3d 77 (Del. 2011) (TABLE).
                                                4
counsel on October 17, 2012. On October 18, 2012, Wright filed a pro se Motion

for Postconviction Relief (“Motion”) pursuant to Superior Court Rule 61. On

August 1, 2014, Wright’s appointed counsel filed an amended motion.


                           DEFENDANT’S RULE 61 MOTION

         Wright’s Motion raises only one ground for postconviction relief: that Trial

Counsel was ineffective in failing to investigate and present any evidence or

testimony to rebut the testimony of the Dr. Vershvovsky and Mahan.


                                  STANDARD OF REVIEW

         Rule 61 of the Superior Court Rules of Criminal Procedure (“Rule 61”)

governs motions for postconviction relief. In reviewing motions for postconviction

relief, Delaware law requires the Court to first look at Rule 61’s procedural

requirements before examining the motion on its merits.5 Rule 61(i) sets forth the

possible procedural bars to post-conviction relief: (1) a motion for postconviction

relief cannot be filed more than one year after the judgment of conviction is final;

(2) any ground for relief not asserted in a prior postconviction motion is barred; (3)

any ground for relief not asserted in the proceedings leading to the judgment of




5
    Ayers v. State, 802 A.2d 278, 281 (Del. 2002).
                                                     5
conviction is barred; (4) any ground for relief that was formerly adjudicated is

barred.6


                                         ANALYSIS

                            Ineffective Assistance of Counsel

       Rule 61(a)(1) provides in relevant part:

       This rule governs the procedure on an application by a person in
       custody under a sentence of this court seeking to set aside the
       judgment of conviction…on the ground that the court lacked
       jurisdiction or any other ground that is a sufficient factual and legal
       basis for a collateral attack upon a criminal conviction….(emphasis
       added).

       Therefore, claims of ineffective assistance of counsel at trial and on direct

appeal are appropriate in motions for postconviction relief.7 Ineffective assistance

of counsel claims are evaluated under the two-pronged test set forth in Strickland

v. Washington.8 To succeed on a claim under Strickland, the petitioner must show:

(1) that “counsel’s representation fell below an objective standard of

reasonableness;” and (2) that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.”9


6
  Super. Ct. Crim. R. 61(i).
7
  Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
8
  466 U.S. 668 (1984). See also Ayers, 802 A.2d at 281 (“A petitioner’s claim that he received
ineffective assistance of counsel is measured under the test articulated by the United States
Supreme Court in Strickland v. Washington.”).
9
  Strickland, 466 U.S. at 688, 694. See also Flamer, 585 A.2d at 753.
                                               6
       The test articulated in Strickland creates a strong presumption that counsel’s

representation was professionally reasonable. 10 The “benchmark for judging any

claim of ineffectiveness [is to] 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.” 11 Therefore, a motion for postconviction relief

“must make concrete allegations of actual prejudice, and substantiate them,” or risk

being dismissed.12


                                    Parties’ Contentions

       Wright contends that Trial Counsel was ineffective because their failure to

investigate and present any evidence or testimony to rebut the testimony of Mahan

and Dr. Vershvovsky prejudiced Wright. Specifically, Wright asserts that Trial

Counsel should have consulted with an expert in forensic pathology to aid in the

cross-examination of Dr. Vershvovsky and to rebut Mahan’s testimony concerning

the alleged murder weapon. Wright argues that if a forensic pathologist could have

ruled out the possibility that a baseball bat was used to murder Gardner and

Gabrielli it would have effectively rebutted Mahan’s testimony.

       Conversely, the State argues that Trial Counsel’s failure to hire a forensic

pathologist was not objectively unreasonable. The State also argues that Wright

10
   Flamer, 585 A.2d at 753.
11
   Cooke v. State, 977 A.2d 803, 840 (Del. 2009) (quoting Strickland, 466 U.S. at 688).
12
   Couch v. State, 2008 WL 390754, at *1 (Del.).
                                                7
cannot show there is a reasonable probability that, but for Trial Counsel’s failure to

hire a forensic pathologist expert the result of trial would have been different. The

State asserts that a forensic pathologist’s rebuttal opinion on the murder weapon

would not have impeached Mahan’s testimony. The State argues that the purpose

of Mahan’s testimony was to show that Wright had told Mahan the police’s theory

about the murder weapon—information that Mahan only could have received from

Wright. The State asserts it used the murder weapon testimony to support Mahan’s

credibility, not as proof of the actual murder weapon used in the murders.


                                     Discussion

         The Court initially will address Wright’s motion with respect to Rule 61’s

procedural requirements. The Court first finds that Wright’s motion was filed

timely under Rule 61(i)(1). Wright filed this motion on October 18, 2012, which

was within one-year from the Delaware Supreme Court’s affirmation of Wright’s

conviction on October 24, 2011. Second, the Court finds that Rule 61(i)(2) is

satisfied because this is Wright’s first-filed motion for postconviction relief. Third,

the Court finds that Rule 61(i)(3) is satisfied because Wright’s ineffective

assistance claim has not been previously raised. A claim of ineffective assistance

is only proper in a motion for postconviction relief.13 Finally, Rule 61(i)(4) is



13
     Flamer, 585 A.2d at 753.
                                          8
satisfied because this is the first time Wright has raised an ineffective assistance of

counsel claim. Thus, Wright’s claim has not been previously adjudicated.

      Turning to the merits of Wright’s motion, Wright argues that Trial Counsel

were ineffective because they did not solicit advice or testimony from a forensic

pathologist. Wright contends:


             Trial counsel’s failure in this regard was significant. Mr.
      Wright needed a forensic pathologist to review Dr. Vershvovsky’s
      findings and to rebut Mahan’s claim that a bat had been used to
      murder Ms. Gardner and Mr. Gabrielli. Had trial counsel’s expert
      ruled out the possibility that a bat was used, as Vershvovsky would
      not, it would have established that Mahan – a man in an unenviable
      situation given his condition at the time – lied. A lie would have
      called into question the remainder of Mahan’s testimony, which was
      already questionable.
             A forensic pathologist ruling out a bat would have provided
      meaningful rebuttal to the State’s arguments regarding Mr. Wright’s
      supposed admissions to Mahan. Instead, trial counsel failed to hire an
      expert and as a result was ineffective. Trial counsel was totally
      unprepared to confront Mahan’s statement. It missed out on the
      opportunity to rule out the use of a bat due to the diameter of the
      injuries and to discuss the amount of force necessary to use the handle
      of a bat to cause the injuries in this case, as the State suggested was
      possible on re-direct. The mechanics of swinging a hammer differ
      greatly from poking someone with the handle of a baseball bat, and
      thus the force generated will vary. Either way, trial counsel’s mistake
      allowed the State to tie its circumstantial case together with a
      “confession,” and therefore prejudiced Mr. Wright.


      Assuming arguendo that a forensic pathologist would have testified that a

baseball bat could not have been the murder weapon, Wright has failed to show

that the testimony of a forensic pathologist would have changed the outcome of the
                                          9
trial. With regard to Mahan’s testimony, the identity of the actual murder weapon

is irrelevant. The only pertinent information was what had been conveyed to

Wright, by Trial Counsel, about their impression of what the State believed about

the murder weapon. At the time Wright and Mahan were incarcerated together, the

State’s investigator believed that the murder weapon was a hammer. That belief

was provided to Trial Counsel, who in turn conveyed the hammer theory to

Wright. Wright subsequently told Mahan what the State believed.

      The only purpose of forensic rebuttal expert testimony would be to rule out a

bat as the actual murder weapon. Having such testimony would not serve to

discredit Mahan. Mahan’s statement went to the conveyed belief of the State’s

investigator, not to the accuracy of that belief. The Court finds the State’s purpose

for eliciting Mahan’s testimony regarding the weapon—that Wright had told

Mahan the police were incorrect about the murder weapon—was to buttress

Mahan’s credibility as to the other statements made by Wright.

      In short, the State did not use Mahan’s testimony to pursue a theory that the

murder weapon was a baseball bat. A forensic pathologist’s opinion that a baseball

bat could not have been the murder weapon would not have changed the fact that

Mahan knew intimate details of the murder investigation, which were not readily

known to the public. Nor would it change the fact that Wright confessed the

murder to Mahan in their shared jail cell.


                                         10
      Wright also suggests that “Mahan was a drug-addicted inmate serving time

for a felony DUI and suffering immense pain from esophageal cancer.             He

admitted that he was withdrawing from his narcotic medications and could not

sleep at the time he met Mr. Wright. He was ripe for impeachment.” However,

the Court finds that Trial Counsel did attempt to impeach Mahan’s credibility

based on those same factors. Trial Counsel confronted Mahan several times about

the physical and mental symptoms he was experiencing during his narcotic

withdrawal.    Trial Counsel also questioned Mahan about the circumstances

surrounding how Mahan came to know about the police’s thoughts as to the

murder weapon.

      Similarly, a forensic pathologist’s opinion would not necessarily undermine

Dr. Vershvovsky’s opinion. Dr. Vershvovsky did not opine that a baseball bat was

the actual weapon used to murder Gardner and Gabrielli.               Instead, Dr.

Vershvovsky opined that Gardner and Gabrielli were killed because of “blunt force

injuries” that could have been caused by “any blunt object which has a smooth,

circular surface.”   Only when confronted by Trial Counsel with hypothetical

questions on cross-examination did Dr. Vershvovsky state that it was possible that

the murder weapon could be a baseball bat.         Therefore, a defense forensic

pathologist ruling out a baseball bat as the murder weapon may have eliminated the

potential for a baseball bat to be the murder weapon, but it would not have changed


                                        11
Dr. Vershvovsky’s opinion that the murder weapon was a blunt object with a

smooth, circular face.

                                 CONCLUSION

      The Court finds that Wright is unable to establish a claim for ineffective

assistance of counsel under Strickland. Wright has failed to show that: (1) Trial

Counsel’s representation fell below an objective standard of reasonableness; and

(2) there is a reasonable probability that, but for Trial Counsel’s unprofessional

errors, the result of the proceeding would have been different.

      THEREFORE, Defendant Clifford Wright’s Amended Motion for

Postconviction relief is hereby DENIED.

      IT IS SO ORDERED.



                                               /s/__Mary M. Johnston___________
                                                  The Honorable Mary M. Johnston




                                         12
