IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,

Plaintiff,

Cr. ID. No. 0512020169

BRUCE WOOD,

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\/\_/\/\/\/\/\./V\/\/\/

Defendant.

Submitted: May 16, 2017
Decided: June 27, 2017

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE SUMMARILY DISMISSED, DEFENDANT’S
MOTION FOR APPOINTMENT OF COUNSEL SHOULD BE DENIED
AND DEFENDANT’S MOTIONS TO COMPEL SHOULD BE DENIED

Joseph Grubb, Deputy Attorney General, Depz;rtment of Justice, Wilmington,
Delaware, Attorney for the State.

Bruce Wood, J ames T. Vaughn Correctional Center, Smyrna, Delaware, pro se.

MAYER, Commissioner

This 27th day of June, 2017, upon consideration of Defendant’s Motion for
Postconviction Relief and the record in this matter, the following is my Report and
Recommendation.

BACKGROUND, FACTS AND PROCEDURAL HISTORY

l. After a jury trial, Bruce Wood (“Defendant”) Was found guilty of sixteen
(16) counts of Rape First Degree and two (2) counts of Continuous Sexual Abuse
of a Child.l On September 7, 2007, Defendant Was sentenced to a total of 290
years of Level 5 incarceration.2 Defendant appealed his conviction and the
Delaware Supreme Court issued a mandate on September 30, 2008 affirming the
judgment3

2. Defendant filed his first motion for postconviction relief on April 9, 2009
(the “First Motion”).4 After full briefing, this Court denied the motion.5
Defendant appealed and the Delaware Supreme Court again affirmed the Superior

Court Judgment.6

 

‘ D.I.#65.
2 D.I.#66.
3 D.I.#77.
4 D.I.#Sl.
5 D.I.#93,94.

6 D.I.#103.

3. Defendant then filed a second motion for postconviction relief on March 16,
2011 (the “Second Motion”).7 This Court denied the Second Motion8 and when
Defendant once again appealed, the Delaware Supreme Court affirmed the denial
of the Second Motion as well.9

4. Defendant has now filed his third motion for postconviction relief10 as well
as a motion for appointment of counsel11 and his fourth and fifth motions to
compel.12 Based upon my review of the record, l do not see a reason to order
additional briefing or set the matter for an evidentiary hearing.

DEFENDANT’S RULE 61 MOTION

5. Before considering the merits of a claim, the Court must first determine
whether there are any procedural bars to the motion.l3 After reviewing
Defendant’s motion, it is evident that pursuant to Super. Ct. Crim. R. 61(d)(5) the

motion may be summarily dismissed because it is procedurally barred and it

 

7 D.I. # 104.

8 D.l.#107-109.

9 D.I. # 113.

‘° D.I. # 123.

11 D.I. # 124.

'2 See D.l. # 116, 117, 118, 119, 125, 127. Defendant’s papers also refer re a federal court
matter and appeal pending before the United States Court of Appeals for the Third Circuit, as

well as a plea having been made to the Department of Justice Innocence Proj ect.

‘3 Younger v. Szare, 580 A.2d 552, 554 (Del. 1990).

plainly appears from the record in the case that the movant is not entitled to relief.
As such, the Court should not consider the merits of the claims.14

6. Defendant’s motion is procedurally barred by Superior Court Criminal Rule
61(i)(l) for having been filed more than one year after the conviction became
final.15 As this is Defendant’s third motion for postconviction relief, Defendant
admittedly, can only overcome this bar if the motion either (i) 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; or (ii) pleads with particularity a claim that a new rule of
constitutional law, made retroactive to cases on collateral review by the United
States Supreme Court or the Delaware Supreme Court, applies to the movant’s
case and render the conviction or death sentence invalid.16

7. Defendant does not argue that a new rule of constitutional law applies but
rather relies on the “new evidence” and “actual innocence” prong of the test. In

summary, Defendant argues that he has uncovered “new evidence” supporting his

 

14 Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Paul v. State, 2011 WL 3585623
(Del. Aug. 15, 2011), at *1 (“Delaware law provides that the Superior Court must first consider
whether the defendant has Satisfied the procedural requirements of Rule 61 before considering
the merits of his postconviction motion.”)

15 Defendant’s conviction became final 30 days after the Delaware Supreme Court issued its
mandate affirming the conviction or on October 30, 2008. Super. Ct. Crim. R. 61(m).

16 Super. Ct. Crim. R. 61(i)(2); Super. Ct. Crim. R. 61 (d)(2).

innocence, that he has just become lucid, and that he never had counsel during his
first collateral proceedings Collectively, Defendant believes this justifies allowing
a third motion for postconviction relief, filed more than eight years af`ter the
deadline, to proceed.

8. As an initial matter, the issue of Defendant’s lucidity and use of
psychotropic medications has already been addressed by this Court and the
Delaware Supreme Court in response to Defendant’s First and Second Motions.
Moreover, in its decision affirming the denial of Defendant’s First Motion, the
Delaware Supreme Court addressed Defendant’s argument that the Superior Court
erred in failing to appoint counsel. Therefore, these arguments are not only barred
as untimely, but are also barred as having been previously adjudicated17

9. In order to overcome the procedural bars, Defendant is required to plead
with particularity that there is new evidence demonstrating a strong inference that
he is actually innocent of the charges.18 Defendant must establish “(1) that the

evidence is such as will probably change the result if a new trial is granted; (2) that

 

17 Super. Ct. Crim. R. 61(i)(4). See also State v. Zebroski, 2009 WL 807476 (Del. Super. Mar.
19, 2009) (recognizing settled law that a defendant does not have a constitutional right to counsel
in a postconviction proceeding) (internal citations omitted).

18 see S¢aza v. Phlipe¢, 2017 wL 2266836, at *3 (Dei. super. May 24, 2017) (denying
successive motion when defendant failed to present “new evidence” that was unavailable at trial
or through the exercise of reasonable diligence at the time of the trial could not be available),
citing Phlipol v. Johnson, 2015 WL 1906127 (D.Del. Apr. 27, 2015) (requiring a showing that in
light of the new evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.)

it has been discovered since the trial and could not have been discovered before by
the exercise of due diligence; and (3) that it is not merely cumulative or
impeaching.”]9
10. Defendant’s present arguments can be divided into three categories: (a)
matters that should have been and/or were raised in the direct appeal or previous
adjudications; (b) his claimed “new evidence” demonstrating he did not work for
Lowe’s; and (c) the combination of all of the foregoing - and more - resulted in
cumulative error.

11.

As to the first category, Defendant’s arguments are not only untimely, but

also barred by Superior Court Criminal Rules 61(i)(3) and (4) as follows:

 

ARGUMENT

PREVIOUS ADJUDICATION

 

Ground 2 and Ground 3
paragraph 5 argue counsel
was ineffective for failing

to instruct the jury
regarding the internet
records

The Court first addressed the internet records
in response to the defense’s efforts to attack the
victim’s credibility and the application of 11
D_el. Q. §3508. The Court again addressed the
issue of jury instructions, effectiveness of
counsel and counsel’s pretrial investigation as
well as the credibility of witnesses in the First
Motion that was affirmed by the Supreme
Court. The Court also reviewed the Section
3508 issue in the Second Motion that was also
affirmed by the Supreme Court.

 

 

Ground 3, paragraphs 6, 9
through 12 and 14

 

Claims of ineffective assistance of counsel
were addressed in the First Motion and

 

 

 

19 Dewnes v. S¢aze, 1999 WL 743629, at *7 (Del. super. Aug. 12, 1999), eiting Hieks v. S¢aze,
913 A.2d 1189, 1194 (Del. 2006). See also Downes v. State, 771 A.2d 289 (Del. 2001) (applying
standard in context of postconviction relief).

 

through 18 present claims
of ineffective assistance
of counsel

affirmed on appeal.

 

Ground 3, paragraphs 7
and 8 raise issues relating
to the possible
collaboration between the
victims

This issue was litigated at trial and addressed
in the Supreme Court’s denial of Defendant’s
direct appeal.

 

Ground 4 and Ground 3
paragraph 13, argue that
Defendant’s Sixth
Amendment rights were
violated because he was
prohibited from
presenting the victim’s
counselors as witnesses

The Court ruled on a motion to quash the
subpoena of the records and eventually
reviewed the records in camera.20 This issue
was litigated by trial counsel and not raised by
Defendant in his direct appeal and is therefore
waived.

 

Ground 5 argues counsel
was ineffective with
respect to the motion to
sever

This issue was addressed on direct appeal and
rejected by the Supreme Court. The matter
was again addressed by way of the First
Motion and affirmed on appeal.

 

 

Ground 7 and Ground 3
paragraphs 19 through 21
argue prosecutorial
misconduct

 

This issue was addressed on direct appeal and
rejected by the Supreme Court. The Court
dismissed the argument again in response to
the First Motion, and the Supreme Court
affirmed the Superior Court’s decision.

 

All of the preceding legal arguments, having been previously adjudicated, are

procedurally barred and do not meet the “new evidence” exception.

 

20 See D.I. # 60.

 

12. Defendant’s remaining “new evidence” argument21 rests almost entirely on
the premise that he was not employed by Lowe’s.22 According to Defendant’s
motion, during the trial, Detective Greer testified that a mother of a complaining
witness told him that Defendant worked for Lowe’s. One complaining witness
also alleged that Wood had intercourse with her in three motels. Detective Greer
interviewed employees of the motels and none of them had a record of him staying
or working at the motels. However, one hotel had reportedly had carpet work done
by Lowe’s and it was proffered that Defendant sub-contracted for Lowe’s, thereby
possibly placing him at one of the scenes supporting the alleged crime. Defendant
recognizes that the State produced no evidence from Lowe’s that he ever did work
for them. In support of his motion, Defendant presents: (i) a letter from the IRS
that purports to show that he was not employed by Lowe’s; (ii) an unsigned letter
and affidavit from someone who may have called Lowe’s and spoke with an
unnamed person that had no record of employment; and (iii) several affidavits

from Defendant himself. Defendant now argues that this new evidence shows that

 

21 Defendant’s “new evidence” arguments were set forth in his papers as Ground l (false
evidence regarding his employment at Lowe’s Was presented to the jury), Ground 3 paragraphs
1-4 (duplicative argument) and Ground 6 (the State withheld favorable evidence demonstrating
he did not work for Lowe’s).

22 Through his exhibits, Defendant appears to also be arguing that the victim’s internet records
(Defense Exhibit 3 from trial) and the original police reports are “new evidence.” Defendant
also proffers an affidavit from his mother referencing a conversation she had with Defendant’s
counsel during trial (also presented during the adjudication of his First Motion). However, all of
this was available at the time of trial and could have been - or was - referenced on appeal or
pursuant to the First Motion. Therefore, these exhibits do not assist Defendant here.

7

(i) multiple witnesses “lied” about him having worked for Lowe’s; (ii) the State
and defense counsel created cumulative error by allowing Detective Greer’s
testimony to stand; and (iii) the State withheld favorable evidence from the defense
by not disclosing at trial that Defendant did not work for Lowe’s.

13. Defendant’s motion fails to meet the required standard for presentation of
new evidence. Defendant testified at the trial at which time there was no
impediment to his ability to attest to his employment relationship with Lowe’s.
Defendant recognizes that the State produced no evidence that he worked at
Lowe’s and that Detective Greer’s interviews produced no record of his work at
the motels. The unauthenticated IRS letter as well as the unsigned letter and
affidavit from his acquaintance could have amounted to nothing more than
cumulative (and very possibly inadmissible) evidence. ln reviewing the trial
transcript and evidence presented, Defendant’s possible employment at Lowe’s
was a tangential issue - at best. Despite this, it is noteworthy that Defendant’s
exhibits to the motion show that he worked at “Bruce’s Carpet” and the testimony
at trial was that he sometimes sub-contracted his carpet work. The jury could have
easily inferred that this entity was a sub-contractor for Lowe’s. lf Defendant was
indeed a subcontractor employed by Bruce’s Carpet - and not directly by Lowe’s -
then neither the IRS, nor Lowe’s itself, would have a record of having employed

Defendant. Furthermore, it is presumed that a jury will follow the instructions laid

out by the court that there must be proof beyond a reasonable doubt.23 Based on a
review of the weight of the testimony and evidence presented at the trial, there is
no basis to believe that Defendant’s proffered “new evidence” would have changed
the outcome of the proceedings and convinced a reasonable jury to aquit.

14. Finally, for all of the reasons set forth above, Defendant’s argument of
“cumulative error” must also fail. This argument was presented with 21 subparts
that have all been addressed through Defendant’s original appeal, First Motion,
Second Motion and/or herein. Defendant cannot avoid the procedural bars by
simply re-categorizing the same arguments that have been adjudicated and denied.
Absent a true showing of new evidence or a change in applicable constitutional
law, the motion fails.

DEFENDANT’S MOTION FOR APPOINTMENT OF COUNSEL

15. In support of his Motion for Appointment of Counsel, Defendant re-iterates
his arguments set forth in his third Motion for Postconviction Relief. Defendant’s
post-conviction arguments were set forth at length in the motion and supported by
citations to legal authorities as well as numerous exhibits. The Delaware Supreme
Court also addressed the issue of appointment of counsel through its decision on
the First Motion. The Court may appoint counsel on a second or subsequent

motion only if it is determined that the motion satisfies the pleading requirements

 

23 Capono v. State, 781 A.2d 556, 589(De1. 2001) (intemal citations omitted).
9

of Superior Court Criminal Rule (d)(2)(i) or (2)(ii).24 In light of the above
recommendation regarding Defendant’s third Motion for Postconviction Relief, the
request for appointment of counsel should be denied.25

DEFENDANT’S MOTIONS TO COMPEL

16. Along with the aforementioned motions, Defendant presented his fourth and
fifth motions to compel. On May 2, 2017, Defendant filed the motions seeking
copies of Detective Greer’s investigation results regarding whether Defendant
worked for Lowe’s and copies of the victim’s counseling records. On October 18,
2016, this Court denied previous motions from the Defendant seeking the same
information In addition, the Delaware Supreme Court’s decision on Defendant’s
First Motion recognized that defense counsel did in fact subpoena counseling
records for both of the victims, the trial court reviewed the records, and Defendant
attached some of the counseling records to his motion. Even if additional
documentation were to exist, it would have been reasonably available to Defendant
at the time of trial and cannot now form a basis for relief as “new evidence.” As
Superior Court Criminal Rule 61 includes no provision for the allowance of

discovery, it has been held that the court may exercise its discretion to grant

 

24 super. Ct. Crim. R. oi(e)(4).

25 Defendant’s previous motions to the Court, as well as the present motions, were fully briefed
with extensive arguments and citations to legal authority. Thus, there has been no prejudice to
the Defendant throughout the entirety of this lengthy and litigious process.

10

particularized discovery for good cause shown.26 Here, the documentation sought
by Defendant was either available at the time of trial, could have been discovered
through due diligence, or in fact, was made available during the process.
Therefore, Defendant has failed to demonstrate a compelling reason or good cause
for the requests and the motions should be denied.

For all of the foregoing reasons, Defendant’s Motion for Postconviction
Relief should be summarily dismissed,27 Defendant’s Motion for Appointment of
Counsel should be denied, and Defendant’s motions to compel should be denied.

IT IS SO RECOMMENDED.

a Hl'll'le .. E|.y€l`

oc: Prothonotary
cc: Bruce Wood
Joseph Grubb, Esquire

 

26 Dawson v. State, 673 A.2d 1186, 1197-1198 (Del. 1996).

27 On June 19, 2017, Defendant filed a Motion to Amend Post-Conviction Motion Pending
Before the Court [D.l. # 128]. Defendant again argues “new evidence” in the form of a letter
indicating Lowe’s has no record that Bruce Wood was employed there. As set forth herein, the
Court has already considered this argument and the letter does not change the result. On June
26, 2017, Defendant filed a Second Motion to Amend [D.I. # 129] arguing that he became aware
of a “Newly Discovered Superior Court Case” that supports his argument that his rights were
violated when the Superior Court quashed the subpoenas for the victim’s psychiatric records.
However, neither case cited by Defendant is “new” (a United States Supreme Court case dated
1987 and a 1998 Delaware Superior Court case cited in the Trial Court’s Opinion on the Motion
to Quash), nor does either case raise an issue of constitutional concerns or present “new

evidence” as necessary to bypass the procedural bars. Therefore, both motions are meritless and
should be denied.

11

