State v. Brown ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) I.D. No. 1505023582A
)
MARSHALL BROWN, )
)
Defendant. )
Submitted: September 28, 2022
Decided: October 7, 2022
Upon Defendant’s Motion for Recusal of the Delaware Attorney General’s Office
Vacating of the Verdict Due to Conflict of Interest Given the Defendant’s Former
Counsel in His First Trial Became a Deputy Attorney General in the Second Trial
Which Presented a Conflict of Interest Which Adversely Affected the Defendant’s
Defense in His Second Trial, Treated as a Motion for Postconviction Relief,
SUMMARILY DISMISSED.
ORDER
Marshall Brown, SBI# 315027, Delaware DOC – 1101, P.O. Box 96777, Las Vegas,
NV, 89193, alternatively, James T. Vaughn Correctional Center 1181 Paddock
Road, Smyrna, DE 19977, pro se.
Zachary Rosen, Esquire, Deputy Attorney General, DEPARTMENT OF JUSTICE,
820 North French Street, Wilmington, DE 19801, Attorney for the State.
Christopher S. Koyste, Esquire, LAW OFFICE OF CHRISTOPHER S. KOYSTE,
LLC, 709 Brandywine Blvd., Wilmington, DE 19809, Attorney for Defendant
Marshall Brown.1
WHARTON, J.
1
Mr. Koyste represented the Defendant on his Amended Motion for Postconviction
Relief (D.I. 95) and is currently representing him on his Motion to Modify February
18, 2016 Protective Order (D.I. 102).
This 7th day of October, 2022, upon consideration of Defendant Marshall
Brown’s (“Brown”) Motion for Recusal of the Delaware Attorney General’s Office
Vacating of the Verdict Due to Conflict of Interest Given the Defendant’s Former
Counsel in His First Trial Became a Deputy Attorney in the Second Trial Which
Presented a Conflict of Interest Which Adversely Affected the Defendant’s Defense
in His second Trial, which the Court treats as a motion for postconviction relief
(“Motion”),2 and the record in this matter, it appears to the Court that:
1. Brown was indicted by the Grand Jury on the charges of Home
Invasion, two counts of Assault First Degree, Reckless Endangering First Degree,
three counts of Robbery First Degree, eight counts of Possession of a Firearm During
the Commission of a Felony, eight counts of Wearing a Disguise During the
Commission of a Felony, Conspiracy Second degree, endangering the Welfare of a
Child, and Possession of a Firearm by a Person Prohibited.3 Brown’s first trial ended
in a mistrial when the jury was unable to reach a unanimous verdict.4 He was
represented at that trial by Assistant Public Defender Beth Deborah Savitz, Esquire.
Prior to his second trial, Ms. Savitz resigned from the Office of Defense Services
and accepted a position with the Department of Justice as a Deputy Attorney
General. Ms. Savitz did not appear on behalf of the State at Brown’s re-trial. Rather,
the State was represented by Deputy Attorney Zachary Rosen. Brown’s second trial,
2
D.I. 107.
3
D.I. 3.
4
D.I. 34.
2
where he was represented by Michael W. Modica, Esquire, resulted in him being
convicted of all charges except the Possession of a Firearm by a Person Prohibited
charge, which had been severed for trial and as to which the State entered a nolle
prosequi after the verdict.5 Prior to sentencing, the State moved to have Brown
declared a habitual offender and sentenced as one on all felony charges for which he
was convicted.6 After declaring Brown a habitual offender, the Court sentenced him
to life imprisonment plus 388 years.7 Brown appealed to the Delaware Supreme
Court. On appeal, he raised a single issue: whether the observation of Brown by two
witnesses at his first trial was the equivalent of an impermissibly suggestive pretrial
identification procedure.8 His appeal was unsuccessful and his convictions were
affirmed.9 Brown filed timely pro se motions for postconviction relief and
appointment of counsel.10 Counsel was appointed, and submitted an Amended
Motion for Postconviction Relief, alleging ineffective assistance of counsel, which
this Court denied.11 That denial was affirmed by the Delaware Supreme Court on
June 15, 2020.12 Currently before the Court is a motion to modify the protective
5
D.I. 60.
6
D.I. 63.
7
D.I. 66.
8
Brown v. State, 2018 WL 1313036 (Del. 2018).
9
Id.10
D.I. 80, 83.
11
State v. Brown, 2019 WL 5681524 (Del. Super. Ct. Oct. 31, 2019).
12
Brown v. State, 2020 WL 3250235 (Del. 2020).
3
order entered in this case, filed by postconviction counsel, so that Brown might have
access to materials necessary for him to seek federal habeas corpus relief pro se.13
2. In this Motion, Brown seeks to vacate his convictions based on a denial
of his 6th Amendment right to counsel because his former attorney was employed by
the Department of Justice at the time of his second trial. He states incorrectly, that
“his prior counsel failed to report her conflict of interest with the court and trial
counsel.”14 Counsel and the Court were well aware that Ms. Savitz was a Deputy
Attorney General at the time of Brown’s second trial. He argues, also incorrectly,
that Ms. Savitz’ new position “obligated her to reveal to the attorney general that
prosecuted him information relating to the defendant’s strategy at a second trial.”15
Obviously, no such obligation exists. Brown appears simply to have made it up out
of whole cloth as he sites nothing in support of such a purported obligation’s
existence.
3. Normally, the Court would not entertain Brown’s current pro se motion
since he is represented by counsel.16 However, because postconviction counsel’s
representation continues only for the limited purpose of securing certain information
13
D.I. 102
14
D.I. 107.
15
Id.16
See, Super Ct. Cr. R. 47. (“The court will not consider pro se applications by
defendants who are represented by counsel unless the defendant has been granted
permission to participate with counsel in the defense.”).
4
for Brown so that he might seek federal habeas corpus relief pro se, the Court grants
Brown limited permission to participate with postconviction counsel to submit this
Motion.
4. Superior Court Criminal Rule 61 “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 on
any other ground that is a sufficient factual and legal basis for a collateral attack
upon a criminal conviction.”17 “The remedy afforded by this rule may not be sought
by a petition for habeas corpus or in any other manner other than as provided
herein.”18 Thus, Rule 61 provides the exclusive vehicle for obtaining the relief
Brown seeks in his Motion. Accordingly, despite its caption, the Court treats the
Motion as a motion for postconviction relief under Rule 61.
5. Before addressing the merits of a defendant’s motion for postconviction
relief, the Court must first apply the procedural bars of Superior Court Criminal Rule
61(i).19 If a procedural bar exists, then the Court will not consider the merits of the
postconviction claim.20
4. Under Delaware Superior Court Rules of Criminal Procedure, a motion
for postconviction relief can be barred for time limitations, repetitive motions,
17
Super. Ct. Crim. R. 61(a).
18
Super. Ct. Crim. R. 61(b).
19
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
20
Id.5
procedural defaults, and former adjudications. A motion exceeds time limitations if
it is filed more than one year after the conviction becomes final or if it asserts a
newly recognized, retroactively applied right more than one year after it was first
recognized.21 A second or subsequent motion is repetitive and therefore barred.22
The Court considers a repetitive motion only if the movant was convicted at trial and
the motion pleads with particularity either: (1) actual innocence;23 or (2) the
application of a newly recognized, retroactively applied rule of constitutional law
rendering the conviction invalid.24 Grounds for relief “not asserted in the
proceedings leading to the judgment of conviction” are barred as procedurally
defaulted unless the movant can show “cause for relief” and “prejudice from [the]
violation.”25 Grounds for relief formerly adjudicated in the case, including
“proceedings leading to the judgment of conviction, in an appeal, in a post-
conviction proceeding, or in a federal habeas corpus hearing” are barred.26
5. Treating the Motion as one under Rule 61, the Court finds that it is
procedurally barred under Rule 61 because it is untimely, successive, and raises
grounds not asserted previously. Brown fails to overcome these bars because he
offers no evidence of actual innocence or the application of a newly recognized,
21
Super. Ct. Crim. R. 61(i)(1).
22
Super. Ct. Crim. R. 61(i)(2).
23
Super. Ct. Crim. R. 61(d)(2)(i).
24
Super. Ct. Crim. R. 61(d)(2)(ii).
25
Super. Ct. Crim. R. 61(i)(3).
26
Super. Ct. Crim. R. 61(i)(4).
6
retroactively applied rule of constitutional law rendering his convictions invalid.
Moreover, he fails to allege “cause for relief” for his failure to raise the issue he
raises here, either on direct appeal or in postconviction relief. Further, his allegations
of impropriety, without any evidentiary support, and based on a flawed
understanding of Ms. Savitz’ obligations to her new employer, do not establish
prejudice.
6. Summary dismissal is appropriate if it plainly appears from the motion for
postconviction relief and the record of prior proceedings in the case that the movant
is not entitled to relief.27 Here, it is plain to the Court from the Motion and the record
in this case that Brown is not entitled to relief.
THEREFORE, Brown’s Motion for Recusal of the Delaware Attorney
General’s Office Vacating of the Verdict Due to Conflict of Interest Given the
Defendant’s Former Counsel in His First Trial Became a Deputy Attorney general
in the Second Trial Which presented a Conflict of Interest Which Adversely
Affected the Defendant’s Defense in His Second Trial, treated as a Motion for
Postconviction Relief, is SUMMARILY DISMISSED.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
27
Super. Ct. Crim. R. 61(d)(5).
7