   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                 IN AND FOR NEW CASTLE COUNTY

                                     )
STATE OF DELAWARE                    )
                                     )      I.D. No. 0107010230
      v.                             )
                                     )
ROBERT K. GARVEY                     )
                                     )
                   Defendant.        )


                         Submitted: July 6, 2015
                       Decided: September 30, 2015

           On Defendant’s Fifth Motion for Postconviction Relief.
                     SUMMARILY DISMISSED.

           On Defendant’s Motion for the Appointment of Counsel.
                                DENIED.

             On Defendant’s Motion for an Evidentiary Hearing.
                          DENIED AS MOOT.


                                ORDER
Martin O’Connor, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State

Robert K. Garvey, James T. Vaughn Correctional Center, Smyrna Delaware,
pro se

COOCH, R.J.

      This 30th day of September, 2015, upon consideration of Defendant’s
Fifth Motion for Postconviction Relief, it appears to the Court that:
       1.      Robert K. Garvey (“Defendant”) was convicted in 2003 of
               Murder First Degree1; Robbery First Degree; Attempted
               Robbery First Degree2; 2 counts of Possession of a Firearm
               During the Commission of a Felony; 2 counts of Carrying a
               Concealed Deadly Weapon; and Conspiracy Second Degree.3
               Defendant was sentenced to Life at Level V, plus 30 additional
               years at Level V to be served consecutively. Defendant was
               also sentenced to 2 years at Level II.4 The Delaware Supreme
               Court affirmed Defendant’s convictions on April 28, 2005.5

       2.      This is Defendant’s fifth Motion for Postconviction Relief.6
               Each of Defendant’s previous motions were denied entirely. 7
               Defendant filed the instant Motion on June 24, 2015. He then
               filed a Memorandum of Law In Support of Movant’s Rule 61
               Motion (“Supplement”) on August 4, 2015. Defendant argues
               that he is entitled to postconviction relief because:

             i.    Newly-discovered evidence exists that Dr.
                   Richard Callery “lied during his testimony at
                   Garvey’s trial about several material facts to
                   strengthen his rebuttal testimony as Chief
                   Medical Examiner for the State of Delaware”; 8




1
  The Court notes that Defendant stated in his Motion that he was convicted of
“Criminally Negligent Homicide.” However, the Verdict Sheet from his trial plainly
states that he was convicted of “Murder First Degree.” Compare Verdict Sheet at 1 D.I.
# 112 with Def.’s Mot. for Postconviction Relief at 1.
2
  Again, Defendant represents that he was convicted of “Robbery Second Degree” in his
Motion. However, he was actually convicted of “Attempted Robbery First Degree.”
Compare Verdict Sheet at 2 D.I. # 112 with Def.’s Mot. for Postconviction Relief at 1.
3
  Verdict Sheet at 1-2 D.I. # 112.
4
  Sentencing Worksheet D.I. # 134.
5
  Garvey v. State, 873 A.2d 291 (Del. 2005) (holding the trial court did not abuse its
discretion when it denied Defendant’s motion to suppress or motion to declare a mistrial,
and holding inconsistent jury findings during the guilt and penalty phases of his trial did
not violate Defendant’s right of due process).
6
  D.I. # 185, 208, 222, 232, 252.
7
  See State v. Garvey, 2013 WL 6913365 at* 2 (Del. Super. Dec. 20, 2013) (discussing
briefly Defendant’s claims) aff’d 93 A.3d 653, 2014 WL 2650114 at* 1 (Del. June 11,
2014) (TABLE).
8
  Def.’s Mot. for Postconviction Relief at 2-i.
                                             2
            ii.   “[T]he prosecutions [sic] silence regarding
                  Callerys [sic] illegal private consult business
                  [sic] is a clear Brady violation”; 9
           iii.   “[H]is right of confrontation was violated by
                  the admission of Jordans [sic] [(the victim)]
                  toxicology report because the chemist who
                  actually performed the test did not testify to it
                  at Garveys [sic] trial”; 10
           iv.    “Callery purposefully listed Jordans [sic] Race
                  [sic] as white on his death certificate to assure
                  Garveys [sic] case would be prosecuted as a
                  capital offense”; 11
            v.    “The discussion’s [sic] between the
                  prosecutor’s [sic] and Garveys [sic] trial court
                  pertaining to the clear and convincing evidence
                  [showing] that some one [sic] other than
                  Garvey, [sic] fired the fatal shot that killed
                  Jordan”; 12
           vi.    “[T]he prosecutions [sic] very own fire arm
                  [sic] expert . . . confirmed that . . . the bullet . . .
                  that killed Jordan could not be matched to . . .
                  the Bryco Arms 9mm firearm that the
                  prosecution concedes Garvey possessed and
                  fired on the night in question”;13
          vii.    “[S]ince all of the[] prosecutorial witnesses
                  [sic] statements corroborates . . . Garveys [sic]
                  immediate concern of being shot in his back;
                  [sic] this evidence strongly supports
                  [Defendant’s] contention that there had to have
                  been some one [sic] other than Garvey inside
                  th[e] building shooting”; 14
         viii.    “[A]ll four prosecutorial-codenfendant
                  witnesses testified to actually witnessing a [sic]
                  unknown man, whom they all assumed/believed
                  was Jordan, flee from the building right after

9
  Memorandum of Law In Support of Movant’s Rule 61 at 4 [hereinafter Supplement].
10
   Id. at 2-iii.
11
   Id.
12
   Supplement, supra note 9, at 9.
13
   Id. at 13.
14
   Id. at 23 (emphasis in original).
                                           3
                  the shooting. [Defendant] contends that this
                  unknown man had to be the person who shot
                  and killed Jordan.”; 15 and
            ix.   “[T]he prosecution violated Rule 3.8(d)(1), (2),
                  and (3) of the Delaware Lawyers [sic] Rules of
                  Professional Conduct, by not informing
                  [Defendant] when they/the prosecution heard of
                  their [sic] witness, Dr. Callerys [sic] egregious
                  conduct.” 16

       3.      Defendant’s Motion for Postconviction Relief is controlled by
               Superior Court Criminal Rule 61.17 Before addressing the
               merits of this Motion, the Court must address any procedural
               requirements of Superior Court Criminal Rule 61(i).18

       4.      Under Rule 61(i), a motion for postconviction relief can be
               procedurally barred for time limitations, successive motions,
               procedural defaults, and former adjudications.19 If a procedural
               bar exists, then the Court will not consider the merits of the
               postconviction claim unless the Defendant can show that,
               pursuant to Rule 61(i)(5), the procedural bars are inapplicable.

       5.      Rule 61(i)(5), provides that consideration of otherwise
               procedurally barred claims is limited to claims that the Court
               lacked jurisdiction, or to a “colorable claim that there was a
               miscarriage of justice because of a constitutional violation that
               undermined the fundamental legality, reliability, integrity or
               fairness of the proceedings leading to the judgment of
               conviction.” 20

       6.      This Court finds that all claims asserted are time-barred pursuant
               to Rule 61(i)(1). Motions filed more than 1 year after
               Defendant’s conviction is finalized are time-barred.21
15
   Id. at 25.
16
   Supplement, supra note 9, at 42.
17
   Super. Ct. Crim. R. 61.
18
   See Younger v. State, 580 A.2d 552, 554 (Del. 1990).
19
   See Super. Ct. Crim. R. 61(i)(1)-(4).
20
   Super. Ct. Crim. R. 61(i)(5).
21
   See Super. Ct. Crim. R. 61(i)(1) (barring postconviction motions filed more than 1 year
after judgment of conviction is final); Felton v. State, 945 A.2d 594, 2008 WL 308231
at* 2 (Del. Feb. 1, 2008) (TABLE) (measuring the start of the filing period for a Rule 61
                                            4
              Defendant’s judgment of conviction was finalized on April 25,
              2005, by the Delaware Supreme Court. Defendant did not file
              this Motion until June 24, 2015. However, the Court will
              consider the merits of four of Defendant’s claims, because he
              asserts constitutional violations caused a miscarriage of justice.

       7.     Furthermore, Defendant’s claims iv – viii call into question the
              sufficiency of the evidence with which he was convicted. All of
              these evidentiary claims are barred as former adjudication under
              Rule 61(i)(4). Defendant’s counsel filed a Motion for Judgment
              of Acquittal on October 24, 2003, arguing insufficient evidence
              was presented by the State to sustain a guilty verdict for Murder
              First Degree.22 That motion was denied by this Court on
              December 4, 2003.23 In his current Motion, Defendant attempts
              to revisit the issue of insufficient evidence without showing a
              cause for relief from the procedural bar. Therefore, this Court
              declines to consider the evidentiary arguments raised in this
              Motion, because they are barred under Rule 61(i)(4).

       8.     First, Defendant’s argument that Dr. Callery lied during
              testimony is barred Rule 61(i)(3), because this claim was never
              brought in any proceeding leading up to Defendant’s conviction.
              This claim is also barred by Rule 61(i)(2), because Defendant
              based part of his fourth motion for postconviction relief on the
              accusation of perjured testimony, but did not include the facts he
              now alleges.24 Although implicitly known to Defendant since
              2003, he failed to bring this accusation in his four previous
              motions for postconviction relief until after the controversy
              surrounded the Office of Chief Medical Examiner (“OCME”).
              The Court further holds that Defendant’s claim—without more
              and in light of the timing of the accusation—fails to meet the
              pleading requirements of Rule 61(d)(2).

       9.     Similarly, Defendant’s claim that the State’s failure to disclose
              Dr. Callery’s private consulting business is a violation of Brady

motion from the date the direct Supreme Court mandate was issued and direct appeal
process concluded). The Supreme Court mandate was issued in Defendant’s case on
April 28, 2005. See Garvey v. State, 873 A.2d 291 (Del. 2005).
22
   Mot. for J. of Acquittal D.I.# 116.
23
   Order D.I.# 130.
24
   State v. Garvey, 2013 WL 6913365 at* 1 (Del. Super. Dec. 20, 2013).
                                          5
               v. Maryland and Rule 3.8 of the Rules of Professional Conduct is
               unfounded. Defendant was convicted in 2003. The controversy
               at the OCME did not surface until 2014—more than a decade
               after his conviction. There is no evidence that the controversy at
               the OCME caused the State to fail to disclose material
               impeachment evidence in violation of Brady. 25 Further, the
               Rules of Professional Conduct govern the members of the
               Delaware State Bar. They are not a cause for postconviction
               remedy. Therefore, these claims lack merit.

       10.     Next, the Court does not find the Defendant’s Sixth Amendment
               right of confrontation was violated. Defendant claims that his
               right to confrontation was violated because Dr. Callery testified
               about the toxicology report, but was not the person who
               conducted the tests. The Sixth Amendment states that “[i]n all
               criminal prosecutions, the accused shall enjoy the right . . . to be
               confronted with the witnesses against him.” 26 However, this
               right only applies to testimonial evidence.27 Business records are
               not testimonial evidence.28 Business records are reports made by
               a person with knowledge; “kept in the course of a regularly
               conducted business”; and it being the regular practice of the
               business to make those reports.29 The Court finds that the
               toxicology report is a business record, because: (1) it was taken
               by Jill M. Winterling, the forensic chemist who conducted the
               tests and signed the report; (2) it was within the OCME regular
               conducted business to conduct toxicology tests; and (3) it was the
               regular practice of the OCME to produce toxicology reports.
               Since the toxicology report is a business record it is non-
               testimonial. Therefore, the Sixth Amendment’s confrontation
               clause does not apply and Defendant is not entitled to
               postconviction relief.
25
   Hickman v. State, 116 A.3d 1243, 2015 WL 4066797 at* 1 (Del. July 1, 2015)
(TABLE) (“The alleged misconduct by OCME employees was not revealed until 2014,
and thus did not raise a concern that the State concealed material impeachment evidence,
as required to find a Brady violation, at [the defendant’s] trial in 2001.”).
26
   U.S. Const. Amend. VI.
27
   Davis v. Washington, 547 U.S. 813, 821 (2006) (“It is the testimonial character of the
statement that separates it from other hearsay that, while subject to traditional limitations
upon hearsay evidence, and not subject to the Confrontation Clause.”).
28
   Crawford v. Washington, 541 U.S. 36, 56 (2004) (“Most hearsay exceptions covered
statements that by their nature were not testimonial—for example, business records.”).
29
   D.R.E. 803(6).
                                              6
       11.     Since all of Defendant’s claims for postconviction relief are
               denied or summarily dismissed, his Motion for an Evidentiary
               Hearing is denied as moot.

       12.     Finally, finding no merit in any of the claims asserted by
               Defendant in his Motion for Postconviction Relief, Defendant’s
               Motion for Appointment of Counsel is denied. 30


       IT IS SO ORDERED.

                                                           ______________________
                                                             Richard R. Cooch, R.J.

oc:    Prothonotary
cc:    Investigative Services




30
   The Court received an Application for Discovery in the form of a letter on September
30, 2015. In it, the Defendant asks for 45 separate items pertaining to Dr. Callery’s
qualifications; former testimony in his and other cases; criminal indictment and guilty
plea; attendance record at the OCME; disciplinary and criminal records; and anything
else that “is favorable or significant to [Defendant] or might possibly create a reasonable
doubt as to his guilt.” Since the Court does not find any good cause shown for this
request, Defendant’s Application for Discovery is denied.
                                             7
