State v. Hoskins

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE : ID No. 0809018844
: RK 09-12-1214-02 MURDER 2nd
: RK 08-09-1286-02 PFDCF (F)
v. : RK 08-11-0556 02 PFDCF
: RK 08-11-0558 02 PFDCF
: RK 08-11-0560 02 PFDCF
: RK 08-11-0555 02 RECK END 1st (F)
TREMEIN D. HOSKINS, : RK 08-11-0557 02 RECK END 1st (F)
: RK 08-11-0559 02 RECK END 1st (F)
Defendant. :
Submitted: July 5, 2022
Decided: September 16, 2022
ORDER
Upon Consideration of a Commissioner’s Report and Recommended Denial of
Defendant’s Second Postconviction Relief Motion – ADOPTED
On this 16th day of September 2022, having considered Defendant Tremein
Hoskins’ second motion for postconviction relief, the Commissioner’s Report and
Recommendation (the “Report”) recommending that the Court deny his motion, Mr.
Hoskins’ appeal of that Report, and the record, it appears that:
1. On October 9, 2009, a jury found Mr. Hoskins guilty of four counts of
Possession of a Firearm During Commission of a Felony, 11 Del. C. § 1447A, and
three counts of Reckless Endangering First Degree, 11 Del. C. § 604. The jury failed
to reach a unanimous verdict on a Murder First Degree count. The Court then held a
second trial on the murder charge and the second jury found Mr. Hoskins guilty of the
lesser included offense of Murder Second Degree, 11 Del. C. § 635.
2. After his convictions and a presentence investigation, the Court sentenced
Mr. Hoskins to forty-three years at Level V, followed by descending levels of
probation. Thirty-five years of that sentence constituted minimum mandatory time.
Mr. Hoskins then filed a direct appeal. On March 11, 2011, the Delaware Supreme
Court affirmed his convictions.1
3. After Mr. Hoskins’ unsuccessful direct appeal, he filed a motion for
postconviction relief. With the assistance of postconviction counsel, Mr. Hoskins
unsuccessfully litigated his first postconviction motion nearly eight years ago.2 The
Delaware Supreme Court then affirmed the Superior Court’s decision denying him
relief.3 Mr. Hoskins then filed a pro se habeas corpus petition in the United States
District Court for the District of Delaware. The District Court denied that petition as
well.4
4. Mr. Hoskins now files a second motion for postconviction relief. In it,
he claims that there is newly discovered evidence that came into being after his direct
appeal and first postconviction motion. Namely, he contends that the State’s ballistics
witness at trial, Carl Rone (the “Expert”), had significant credibility and qualification
issues pertinent to his trial testimony because of the Expert’s subsequent misconduct.
This evidence, Mr. Hoskins contends, overcomes Rule 61’s procedural bar against
subsequent postconviction motions. Specifically, he highlights (1) the Expert’s lapse
in certification that occurred years after his trial and (2) the Expert’s conviction for
falsifying business records that postdated Mr. Hoskins’ two trials by approximately
eight years. Because Mr. Hoskins contends that no procedural bar applies, the second
part of his postconviction challenge addresses substance: that is, whether this “newly
1
Hoskins v. State, 14 A.3d 554 (Del. 2011).
2
Hoskins v. State, Del. Super., ID No. 0809018844 (January 28, 2014) (ORDER) (adopting Comm’r
Report of June 28, 2013).
3
Hoskins v. State, 102 A.3d 724, 735 (Del. 2014).
4
Hoskins v. Pierce, 217 F. Supp. 3d 798, 813 (D. Del. 2016).
2
discovered” evidence, if known to the jury, would have changed the result of his trial.
5. After he filed his motion, the Court referred the matter to a Superior Court
commissioner as permitted by 10 Del. C. § 512(b) and Superior Court Criminal Rule
62. The Commissioner who received the referral considered the parties’ briefing and
the record. She then issued her Report and recommended that the Court deny Mr.
Hoskins’ motion as “untimely and successive.”5 She refused his request to conduct
an evidentiary hearing and explained why Rule 61(d)(2) requires the Court to dismiss
his motion.6
6. Presently, Mr. Hoskins appeals the Commissioner’s Report. He raises
three objections. First, he contends that the Commissioner erred when she found that
the Expert’s convictions and lapsed certification cannot be considered newly
discovered evidence of actual innocence. Second, Mr. Hoskins contends that because
there is no procedural bar to his motion, his trial counsel’s failure to object to a
superfluous jury instruction was unreasonable. He contends that this unreasonable
choice prejudiced him to the extent that it would have likely changed the result. Third,
after assuming that his motion is not procedurally barred, he contends that the Expert’s
testimony was so unreliable, yet so central to the State’s case, that he deserves a new
trial.
7. For the reasons discussed in the Report, the Court need not address his
second and third arguments as to substance. It need not because his motion is
procedurally barred.
8. As to the Court’s scope of review for this appeal, a judge who reviews a
commissioner’s recommendations and report must conduct a de novo review of the
record to examine “those portions of the report or specified proposed findings or
5
Hoskins v. State, ID No. 0809018844, Freud, Comm’r, at 15 [hereinafter Comm’r. Report] (June
15, 2022) (review pending).
6
Id. at 16.
3
recommendations to which an objection is made.”7 During the judge’s review, he or
she may request further evidence from the parties or recommit the matter to the
commissioner for further action.8 At the conclusion of the review, the judge either
accepts, rejects, or modifies the report in whole, or in part.9
9. Since this is Mr. Hoskins’ second motion for postconviction relief, he has
a heavy burden when seeking to overcome Rule 61(d)(2)’s pleading requirements.10
Namely, the Rule requires him to plead with particularity that either: (1) new evidence
exists that creates a strong inference that he is actually innocent; or (2) there is a new
rule of constitutional law that renders his convictions invalid.11 Mr. Hoskins does not
allege that a new rule of law applies. Rather, he relies upon the first exception.
10. As explained in the Report, Mr. Hoskins’ appeal fails because what he
alleges is “new” evidence does not create a strong inference of innocence. Namely,
the unrelated fraudulent conduct that he pleads postdated both trials by eight years.
Furthermore, the Expert’s subsequent fraudulent conduct is different in kind than (1)
the Expert’s analysis, and (2) the Expert’s opinions based upon that analysis.
Similarly, any lapse in the Expert’s certification, after the trials, bears no relationship
to his testimony during the trials. When accepting Mr. Hoskins’ allegations as true,
new information regarding the Expert’s fraudulent business record filings and lapsed
certification has no nexus to his prior trial testimony.
WHEREFORE, after considering Mr. Hoskins’ objections to the Report, and a
de novo review of the record, the Court ADOPTS the Report attached as Exhibit A in
its entirety. For the reasons explained above and for those explained in the Report,
7
Super. Ct. Crim. R. 62(a)(5)(iv).
8
Super. Ct. Crim. R. 62(a)(5)(iv).
9
Id.
10
Super. Ct. Crim. R. 61(d)(2)(i) & (ii).
11
Id.
4
Mr. Hoskins’ second motion for postconviction relief must be DENIED.
IT IS SO ORDERED.
/s/Jeffrey J Clark
Resident Judge
JJC
oc: Prothonotary
cc: The Honorable Andrea M. Freud
Trial Counsel
Postconviction Counsel of Record
5
Exhibit
A
6
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
: ID. No. 0809018844
STATE OF DELAWARE, : RK 09-12-1214- 02 MURDER 2nd
:
v. : RK 08-09-1286-02 PFDCF (F)
: RK 08-11-0556 02
TREMEIN D. HOSKINS, : RK 08-11-0558 02
: RK 08-11-0560 02
DEFENDANT. :
: RK 08-11-0555-02 RECK END 1ST (F)
: RK 08-11-0557-02
RK 08-11-0559-02
COMMISSIONER'S REPORT AND RECOMMENDATION
Upon Defendant's Second Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61
Jason C. Cohee, Esq., Deputy Attorney General, Department of Justice, for the State
of Delaware.
Herbert W. Mondros, Esq. for Defendant.
FREUD, Commissioner
June 15, 2022
The Defendant, Tremein D. Hoskins (“Hoskins”), was found guilty on October
9, 2009, by a jury of four counts of Possession of a Firearm During Commission of a
Felony, 11 Del. C. § 1447A and three counts of Reckless Endangering First Degree,
11 Del. C. § 604. The jury was unable to reach a unanimous verdict on the one count
of Murder in the First Degree. The Murder count proceeded to a second trial as a lesser
included count of Murder in the Second Degree. On December 10, 2009, the second
7
jury found Hoskins guilty of Murder in the Second Degree. Prior to the second trial
the State entered a nolle prosequi on one count of Conspiracy Second Degree. On
January 26, 2010, Hoskins was sentenced to forty-three years at Level V, followed by
varying levels of probation. Thirty-five years were minimum mandatory time.
A timely Notice of Appeal to the Delaware Supreme Court was filed. Hoskins’
counsel raised three issues on appeal which the Supreme Court classified as follows:
Hoskins raises three arguments on appeal. First, Hoskins
contends that the trial judge committed plain error in failing
to instruct the jury specifically on how it should evaluate the
credibility of the testimony of the alleged accomplice.
Second, Hoskins contends that the trial judge committed
plain error by failing to instruct the jury that it must agree
unanimously upon the particular act or acts of criminality.
Third, Hoskins contends that the trial judge committed plain
error in admitting a witness’s prior out-of-court statements
pursuant to title 11, section 3507 of the Delaware Code.12
The Supreme Court affirmed Hoskins’ conviction and sentence as to all of his
claims.13 The mandate issued on March 11, 2011.
Next, Hoskins, through new counsel, filed a Motion for Postconviction Relief
pursuant to Superior Court Criminal Rule 61. In his first Postconviction Motion,
Hoskins raised multiple grounds for relief including ineffective assistance of counsel.
This Court denied Hoskins’ Motion and that ruling was affirmed by the State Supreme
Court on appeal.14 Next, Hoskins filed a Federal Habeas Corpus Motion which was
likewise denied.15 Finally, Hoskins filed the pending second Motion for Postconviction
12
Hoskins v. State, 14 A.3d 554, 556 (Del. 2011).
13
Id. at 566.
14
State v. Hoskins, Aff’d 102 A.3d 724 (Del. 2014)
15
Hoskins v Pierce, 217 F.Supp.3d 798 (D. Del. Nov. 16, 2016) See also Hoskins v. Vaughn, No.16-4331 (3d
Cir. April 18, 2017) denying application Certificate of Appealability
8
Relief through counsel on January 28, 2021. The matter was set for briefing and there
were several extensions to the briefing order.
FACTS
The following is a summary of the facts as noted by the Supreme Court in its
opinion:
Late one September evening, fifteen to twenty people were
socializing outside of a community known as Capital Green
in Dover. The group was ‘just standing out there talking,
having fun.’ Music could be heard playing from one of their
cars. The group included Brandon Beard, Leia Tolson,
Jermaine Brown, Lentia Brown, Ashley Walton, and Lisa
Moaney.
Meanwhile, less than two miles away in a residential area
known as Capitol Park, another group of individuals was
preparing to make the short trip to Capital Green. That group
included Tremein Hoskins, Brett Hoskins, Darryl
Copperhead, and Alonzo West. FN2 Those four men got into
West’s burgundy Buick. West drove the car, Tremein
Hoskins sat next to him in the front passenger seat, and Brett
Hoskins and Copperhead sat in the back of the car. The group
stopped at a nearby Royal Farms to get gas and continued on
to Capital Green. FN3
FN2. Although never confirmed, the two groups allegedly
were involved in an ongoing dispute. The State alleged that
the Capitol Park group was targeting Jermaine Brown on the
night of the crime. In a statement to police, West explained
that members of the Capital Green group assaulted
Copperhead and that the Capitol Park group may have been
retaliating.
FN3. At Hoskins’ trial, West testified that, during the stop at
Royal Farms, Brett Hoskins exited the burgundy Buick with
a gun and got into a Jeep Cherokee that also was traveling to
Capital Green.
9
Shortly thereafter, Leia Tolson observed at least two vehicles
approach the crowd at Capital Green. First, a Jeep Cherokee
drew near, and then a burgundy Buick ‘slowed down in front
of [the crowd]’ and ‘the person in the back seat rolled their
window down.’ At that time, Tolson knew ‘something
wasn’t right,’ and that ‘some shots or something was going
to get fired because of the way the cars [ ] came in at that
time of night, you don’t usually see cars come in like that.’
The cars parked one behind the other, not far from the crowd.
FN4
Then Tolson ‘just heard gunshots’ coming from ‘where
the cars had parked at.’FN5 Although it is unclear how many
shots were fired that night, Tolson heard ‘at least fifteen
gunshots.’FN6 Tolson and the others then started to run to
Lisa Moaney’s nearby house.
FN4. Tolson’s testimony was not consistent entirely. She
also testified that ‘[t]here was at least four cars out there.’
FN5. Tolson testified: ‘That wasn’t just one gun. Yeah, it
would have been more than one person shooting.
FN6. Lisa Moaney testified that she heard ‘six or seven’
shots. Officer Jeffrey S. Welch, who was patrolling nearby,
testified that he heard ‘a string of five, then a pause, then a
string of four’ shots.
Tolson looked back ‘to make sure that [they] didn’t leave
anybody outside.’ She saw Brandon Beard ‘on his knees;
and he was holding his chest with one of his arms out.’
Tolson and a friend then carried Beard into Moaney’s house
and laid him on a couch. Beard ‘patted his chest’ and
informed his friends that he had been hit. Then, Tolson
observed ‘the blood just [ ] coming through his sweats.’
Tolson called 911 from her cell phone. Beard stated, ‘I can’t
breathe.’ Beard then told his friends: ‘[c]all my mom’ and
‘[d]on’t leave me.’ Beard repeatedly stated: ‘I am going to
die’ and [t]ake care of my kid.’ Shortly thereafter,
paramedics arrived and transported Beard to nearby Kent
10
General Hospital. Dr. Samuel Wilson, who was on call that
night received a page and reported to the hospital. Doctors
began operating on Beard at approximately 2:00 a.m., but
they were unable to save him. Beard was pronounced dead
at 5:36 a.m. Doctor Judith Tobin identified the cause of
death as ‘irreversible shock due to massive hemorrhage due
to a gunshot wound to the left lung and the left subclavian
vein.’ Tobin opined that Beard ‘had his back to where the
bullet came from.’
Later that day, Detective Robert Roswell interviewed
Tremein Hoskins. First, Hoskins told Roswell that he was
not at Capital Green when Beard was shot. Later in that
interview, he recanted and admitted that he was at Capital
Green, but stated that he did not see the shooting. During
that interview with Tremein Hoskins, Roswell learned that
Tremein and Brett Hoskins were in a burgundy Buick on the
night of Beard’s death and that a man named ‘Lonny’
supposedly drove the car.
Two days later, Roswell and another detective drove to
Capitol Park, where they believed ‘Lonny’ resided. As they
approached the entrance to the development, Roswell saw a
burgundy Buick pulling out of the Capitol Park entrance.
Roswell stopped the vehicle and its driver, Alonzo West.
Roswell searched the vehicle, with West’s consent, but found
nothing related to the homicide. West arrived at a nearby
police station approximately thirty minutes later and
voluntarily discussed the events of the night in question.
West stated that he was playing pool with friends earlier
during the night of the shooting and that he had drank one
beer. He also stated that he went to various liquor stores in
Dover and then returned to Capitol Park. When asked who
got into West’s car later that night to go to Capital Green,
West replied: ‘Well, Copperhead, as well call him, and me
and Tre[mein]. And that is it.’FN7 West then admitted that he
owned a Ruger 9mm,FN8 but that neither he nor Copperhead
exited the vehicle or fired a gun that night. But West stated
that Hoskins used his gun:
11
FN7 Later in the interview, the detective stated: ‘They said—
the guys, got out of the burgundy car, that were shooting. So,
you need to be very clear on exactly who was with you.’
West replied: ‘It was Tre[mein], um, Copperhead.’
FN8. West also stated that another man, ‘Boojie,’ had a gun
that night and that ‘[i]t may have been a nine too.’
Detective: So who did you let use your gun? Was it somebody in your
car?
West: Hm, yeah.
Detective: Which one?
West: Ah, Tre[mein].
Detective: Ok, now afterwards, does he give it back to you?
West: Well, yeah.
Detective: All right. Does he get out and shoot, or does he shoot out the
window, or what?
West: Hm, got out FN9
FN9. Earlier in the interview, in contrast, West stated:
“Listen. Like I said, I don’t know if anybody got out, if
Doobie got out. I don’t know.
***
Detective: How many times you figure he shot?
West: Who?
Detective: Tre[mein].
12
West: Could only shoot five rounds.
At the end of the interview, Roswell obtained West’s consent
to retrieve the Ruger 9mm from West’s girlfriend’s trailer.
Roswell found a blue gym bag, which contained a gun case.
That gun case contained a Ruger 9 mm handgun. The Ruger
9mm contained a magazine, but no bullets. Roswell also
found a receipt for the Ruger 9mm that identified West as its
purchaser. The gym bag also contained, among other things,
‘a Wal-Mart bag with a box of .22 -caliber bullets, a 50—
count box, and all the bullets were in the box.’
Roswell then interviewed Tremein Hoskins again. In that
interview, Hoskins finally admitted that he fired West’s gun
on the night of Beard’s death, but Hoskins did not describe
the type of gun he fired. In his previous interview, Hoskins
had denied even observing the shooting. Hoskins explained
his recantation as follows: “I didn’t know what was going on
yet. I didn’t know what was what. I am not—that’s
something that I don’t do all the time, so I wasn’t involved
in anything like that on any other occasion.’
Back at the scene of the crime, police recovered twelve spent
shell casings. Carl Rone of the Delaware State Police
Forensic Firearms Service Unit determined that seven were
fired from one gun and five were fired from another. When
police recovered those spent shell casings, the group of five
and the group of seven were approximately twelve to fifteen
feet apart. Rone determined that all were fired from 9mm
handguns. No. 22 caliber casings were found. Rone
analyzed test rounds fired from the Ruger 9mm that Roswell
recovered from West’s residence and determined that the
bullet that killed Beard had been fired from that Ruger 9mm.
Rone also determined that of the twelve shell casings that
were recovered from the crime scene, five matched West’s
Ruger 9mm.FN10
FN10. Police never recovered the other 9mm handgun that
was fired on the night of the crime.
13
There was additional forensic evidence, but it proved
inconclusive. Corporal Marc Gray found one fingerprint on
the magazine of West’s Ruger 9mm. The fingerprint was on
the middle of the magazine. So it likely resulted from that
person either loading the magazine with bullets or loading
the gun with the magazine. Police determined that the
fingerprint did not match Tremein Hoskins’ fingerprint.
Approximately one year after his first statement to police,
West gave a second interview in connection with a plea. He
stated: ‘[Hoskins] asked me yo can you go get you um get
you um get your gun. I got you this and that. He asked me
about 3 or 4 times so.’ West confirmed that he drove the
burgundy Buick that night and stated that ‘Tremein, Brett,
and um Copperhead was in the car,’ but when they stopped
at Royal Farms, ‘Brett got out the car and jumped [ ] in the
Jeep.’ FN11 West stated that he followed a Jeep into Capital
Green and the following occurred:
FN11. West stated that he could not recall if anyone spoke during
the ride because he ‘was drinking a little bit’ that night.
[The Jeep] was like little bit behind me I mean I was like like
here may been on the other side like little back in back or
whatever and then me [ ] Trem[e]in and Copperhead were
sittin in the car then um next thing we was talking next thing
we heard uh was bop bop bop then Tremein jumped out the
car he grabbed the gun, jumped out the car me and
Copperhead stayed in the car and then when uh when I heard
shots (unintelligible) you know what I mean (unintelligible).
West stated that the group then returned to Capitol Park,
discussing what had just occurred. West recalled:
Yeah and um um Brett and um (unintelligible) about
something and (unintelligible) said um about mentioned
about um yeah I shot up in the air whatever something like
that. Didn’t nobody shoot up in the air. The um Brett said
14
um pointed to what 2 or 3 people you all see what I done
right. You see what I done. You see what I done.FN12
FN12. West also stated that between the time of his first and second
statements, he saw Tremein in prison: West recalled: ‘He said well
I sh I shot up in the air and that’s all he said. You know he said
maybe 2 3, times and well I shot up in the air. I ain’t shoot at
nobody. I I just shot up in the air.’
---
After declaring a mistrial as to the murder first degree and
conspiracy first degree counts, the Superior Court scheduled
another jury trial. The State dropped the conspiracy count
and proceeded on the lesser-included charge of murder
second degree.
West testified at Hoskins’ second trial. When asked why
Hoskins exited the burgundy Buick, West explained: ‘It was
a couple of shots. But then he had jumped out of the car.
Grabbed the gun, and jumped out of the car.’ West also
testified that, upon Hoskins’ request, West brought his Ruger
9mm with him that night and that Hoskins grabbed it from
under the armrest when exiting the car. West recalled that
he heard ‘a couple more shots,’ and then Hoskins got back
into the car ‘maybe two, three seconds after that.’ West
testified that ‘[b]etween four and five’ bullets were in the gun
when Hoskins exited the car and that the gun was empty
when Hoskins returned. As for the blue gym bag that police
recovered from West’s home, West testified that everything
in it belonged to him,FN14 except the .22 caliber rounds.FN15
Despite pleading guilty to conspiracy first degree, West
testified that he did not conspire with anyone on the night of
Beard’s death. West was unable to explain inconsistencies
that existed between his prior police statement and his
testimony at trial.
FN14. The blue gym bag contained, among other
things, the Ruger 9mm, a receipt for that gun with
West’s name on it, prescription bottles with West’s
15
name on it, bills addressed to West, and a cell phone
charger.
FN15. When asked why the .22 caliber rounds were
in his bag, West explained: ‘Like I told you, somebody
had left them in my car—left them in my car when I
went in my house. I checked my car and stuff, and I
seen the bag in the back. I opened it up; I seen there
was 22 shells in it. So [one or two months before
Beard’s death], I took the shells inside the house
instead of leaving them in the car. I put them in the
bag. So if I ran into them, I would ask them: Yo, you
left your things. I would have gave them back to him.’
When asked why he put someone else’s .22 caliber
rounds in a bag that contained all of his own personal
items, West explained: ‘The reason I put them in the
bag was because there was a little child in the house.
So, I put them in a bag where it would be safe at where
he couldn’t get to them.’
Tremein Hoskins also testified at his second trial. He
testified that he did not shoot Brandon Beard and that he shot
a .22 caliber revolver, not a Ruger 9mm. Hoskins stated that
West had a .22 revolver that night and that West handed that
gun to him. Hoskins testified that the .22 caliber revolver
was ‘black and silver—or chrome, black and chrome; either
one of those’ and that West had owned it only for a few
months. But, Hoskins recalled that he had used the .22
caliber revolver to ‘shoot beer bottles and things like that.’
Hoskins testified that he shot the .22 caliber revolver into the
air on the night that Beard was killed ‘[l]et them know I had
a gun too, and just to scare somebody off.’ Lastly, Hoskins
testified that West refers to the .22 caliber as a ‘walkie’
because ‘it’s unregistered, and he carries it with him.’FN16
FN16. Police never recovered the .22 caliber revolver that Hoskins
described.
16
At the prayer conference, defense counsel did not request
accomplice credibility or single theory unanimity jury
FN17
instructions. But, the State requested a general accomplice
liability instruction, which the trial judge gave.FN18 The jury found
Hoskins guilty of murder second degree, and for that conviction,
the trial judge sentenced him to forty years at Level V, with a
mandatory prison term of fifteen years. This appeal followed.
FN17. Defense counsel also did not request those jury instructions
at Hoskins’ first jury trial When asked why defense counsel did
not request an accomplice credibility jury instruction, appellate
counsel, who was also defense counsel, stated at oral argument: ‘It
was not requested. . .It was a matter of oversight. . . Looking back
on it, it should have been done, but it’s a matter of oversight.’
FN18. The trial judge also gave a general instruction on the
credibility of witnesses as follows: ‘You are the sole judge of the
credibility of each witness including the defendant and of the
weight to be given to the testimony of each. You should take into
consideration each witness’ means of knowledge; strength of
memory and opportunity for observation; the reasonableness or
unreasonableness of his/her testimony; the consistency or
inconsistency of his/her testimony; the motives actuating him/her;
the fact, if it is a fact, that his/her testimony has been contradicted;
his/her bias, prejudice, or interest, if any; his/her manner or
demeanor upon the witness stand; and all other facts and
circumstances shown by the evidence which affect the credibility
of his/her testimony.’16
HOSKINS’ CONTENTIONS
In this corrected Second Motion for Postconviction Relief, Hoskins, through
counsel raises the following three grounds for relief:
Ground One: The interests of justice, and Rule 61(d)(2)(i),
require Petitioner be granted a new trial based
16
Hoskins v. State, 14 A.3d 554, at 556-559 (Del. 2011)
17
on monumental credibility issues surrounding
the State’s expert witness, discovered after
direct and Postconviction review, where
Petitioner’s conviction hinged on the witness’s
testimony
Ground Two: Based on the first jury’s acquittal of the intent
to kill element, trial counsel’s allowing this
Court to instruct on intent to kill, constituted a
miscarriage of justice, and separately warrants
Rule 61 (d)(2)(i) relief.
Ground Three: Rone’s match testimony was critical in
obtaining convictions in both trials – there is no
longer any basis to assume its reliability.
DISCUSSION
Under Delaware law, this Court must first determine whether Hoskins has met
the procedural requirements of Superior Court Criminal Rule 61 before it may consider
the merits of his postconviction relief claim.17 The Court considers a Motion for
Postconviction Relief under Rule 61 as a matter of discretion.18 Prior to addressing the
merits of a Rule 61 motion, the Court must first consider and apply the procedural bars
set forth in Rule 61.19 “To protect the procedural integrity of Delaware’s rules, the
Court will not consider the merits of a postconviction claim that fails any of Rule 61’s
procedural requirements.”20 “Rule 61 is intended to correct errors in the trial process,
not to allow defendants unlimited opportunities to relitigate their convictions.”21
17
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
18
Durham v. State, 2017 WL 5450746, at *1 (Del. Nov 13, 2017)
19
Id.; Wright v. State, 91 A.33d 972,985 (Del.2014); Maxion v. State, 686 A.2d 148, 150 (Del. 196) (Citing
Younger v. State, 580 A.2d 552 ,544 (Del.1990)).
20
State v. Page, 2009 WL 1141738, at *3 (Del. Super. Apr.28, 2009).
21
Ploof v. State, 75 A.3d 811, 820 (Del. 2013); Walls v. State, 2016 WL 4191922,at *1(Del. Aug.1, 216)
(“[The Court] will not continue to invest scarce judicial resources to address untimely and repetitive claims.”);
18
The version of Rule 61 in place at the time a defendant files his or her motion
for postconviction relief controls.22 Here, Hoskins filed his corrected second Rule 61
motion on January 28, 2021. Accordingly, Hoskins’ motion is governed by the version
of Rule 61 existing after the substantial amendments effective June 4, 2014.23
Rule 61(i) establishes four procedural bars to postconviction relief.24 Rule
61(i)(1) provides that a motion for postconviction relief must be filed within one year
of a final judgment of conviction.25 Under Rule 61(i)(2), successive motions are
barred, unless under Rule 61(d)(2)(i), the movant “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, under Rule
61(d)(2)(ii), that a new rule of constitutional law, made retroactive to cases on
collateral review by the United States Supreme Court or this Court, applies to his case
and renders his conviction invalid.26 Rule 61(i)(3) bars consideration of any claim not
asserted in the proceedings leading up to the judgment of conviction unless the movant
can show “cause for relief from the procedural default” and “prejudice from violation
of movant’s rights.” 27
Rule 61(i)(4) provides that any claim that has been formerly
Flamer v. State, 585 A.2d 736, 745 (Del.1990) (“It is a matter of fundamental import that there be a definitive
end to the litigable aspect of the criminal process.”) I also note that Hoskins has had multiple opportunities to
litigate his claims both in this Court, before the State Supreme Court, the Federal District Court, and before
the Third Circuit Court of Appeals.
22
See, e.g., Durham, 2017 WL 5450746, at *2 (applying version of Rule 61 in effect when defendant filed
Rule 61 motion); Coles v State, 2017 WL 3259697, at *2 (Del. July 31, 2017) (same); Redden v. State, 150
A.3d 768, 772 (Del. 2016) (same); Bradley v. State, 135 A.3d 748, 757 n.24 (Del. 2016) (same); Jones v State,
2015 WL 6746873, at *1 & n.4 (del. Nov. 4, 2015) (same); Turnage v. State, 2015 WL 6746644, at *1 (Del.
Nov. 4,2015) (same); Collins v. State, 2015 WL 4717524, at *1 (Del. Apr. 28, 2016) (“Superior Court
erroneously applied the provisions of Superior Court Rule 61 that were in effect before the appellant filed his
second Rule 61 Petition on September 1, 2015.”)
23
Rule 61 was substantially amended in June 2014 with the adoption, among other things, of new procedural
bars for second and subsequent motions found in Rule 61 (d)(2) and referenced in Rule 61(i)(5). These new
procedural requirements apply to any postconviction motion filed after June 4, 2014.
24
Super. Ct. Crim. R. 61(i)(1)-(4)
25
Super. Ct. Crim. R. 61(i)(1).
26
Super. Ct. Crim. R. 61(i)(2)
27
Super. Ct. Crim. R. 61(i)(3).
19
adjudicated is thereafter barred.28 Rule 61(i)(5) provides that any claim barred by Rule
61(i)(1)-(4) may nonetheless be considered if the claim is jurisdictional or otherwise
satisfies the pleading requirement of Rule 61(d)(2)(i) or (d)(2)(ii).29
Hoskins’ Motion for Postconviction relief is clearly barred under Rule 61(i)(1)
and (2). Hoskins’ convictions became final in February 2011, when the Delaware
Supreme Court issued its mandate. Hoskins filed this corrected second Motion for
Postconviction Relief in January 2021, nearly ten years after his conviction was final.
Accordingly, Hoskins’ second Rule 61 motion is procedurally barred by Rule
61(i)(1)and (2), as untimely and successive,30 and should be summarily dismissed
under Rule 61 (d)(2)31 unless Hoskins can show his claims satisfy the exceptions to the
procedural bars.
There are no “miscarriage of justice” or “interest of justice” exceptions to the
procedural bars of Rule 61(i)(1) and (2) available to Hoskins as a result of the June
2014 amendments of Rule 61. Hoskins can only overcome the procedural default and
avoid summary dismissal of his untimely and successive postconviction motion, if he
presents a claim that the Court lacked jurisdiction32 or pleads with particularity that:
28
Super. Ct. Crim. R. 61(i)(4).
29
Super. Ct. Crim. R. 61(i)(5).
30
The extent Hoskins appears to be attempting to relitigate previously adjudicated claims, such claims are
procedurally barred by Rule 61(i)(4), as previously adjudicated. Further, to the extent Hoskins could have
raised his claims in his direct appeal, those claims are barred by Rule 61(i)(3) as a result of Hoskins’ failure to
assert these grounds for relief in the proceedings leading up to conviction, because he has not established cause
for failure to do so or prejudice from a violation of his rights.
31
Merritt v. State, 2018 WL 5831275 (Del. Nov. 5, 2018) (affirming summary dismissal of second Rule 61
motion under Rule 61(d)(2)); Sykes v. State, 2018 WL 49*32731, at *1-2 (Del. Oct.10, 2018); Young v. State,
2018 WL 2356412, at *1 (Del. May 23, 2018) (same); Williams v. State, 2018 WL 2110967, at *1 (Del. May7,
2018) (same); Holmes v. State, 2018 WL 637312, at *1 (Del. Jan. 30, 2018) (same); Durham, 2017 WL
5450746, at *2 (same); State v. Jones, 2016 WL 7338591, at *7-8 (Del. Super. Dec.16, 2016), Aff’d, 2017 WL
47535974 (Del. Oct. 10, 2017) (same); Coles, 2017 WL 3259697, at *1-2 (same); State v. Worley, 2018 WL
3302806, at *2-3 (Del. Super. July 3, 2018) (Summarily dismissing defendant’s second Rule 61 motion as a
successive motion under Rule 61(i)(2), because defendant could not meet pleading requirements of Rule
61(d)(2)).
32
Super. Ct. Crim. R. 61(i)(5).
20
(1) “new evidence exists that creates a strong inference that [he] is actually innocent in
fact of the act underlying the charges of which he was convicted,” or (2) a new rule of
constitutional law made retroactive to cases on collateral review applied to his case and
rendered his convictions invalid.33 Hoskins fails to satisfy these pleading requirements,
and thus, his motion must be “summarily dismissed” under Rule 61(d)(2) without
consideration of the merits.34
Hoskins does not present a claim under Rule 61(i)(5) that the Court lacked
jurisdiction over his convictions. Hoskins also does not plead the existence of a
retroactively applicable rule of constitutional law to his case under Rule 61(d)(2)(ii).
Instead, Hoskins claims to be in possession of “newly discover evidence”
demonstrating his innocence, thereby satisfying the actual innocence exception to the
procedural bars. Specifically, Hoskins asserts that State Forensic Firearms Examiner,
Carl Rone’s recent arrest and subsequent guilty plea demonstrate that he is actually
innocent of his charges. Rone was indicted in 2018 for criminal acts that occurred over
a period of time in 2016-2017. He pled guilty to Theft by False Pretense and Falsifying
Business Records in 2018. The allegations involved Rone falsifying payroll records
and being paid for time when he was not working. The allegations did not involve
mishandling evidence, falsifying documents related to his examinations of evidence,
or the reports he produced and to which he later testified.
Hoskins has not proffered any new evidence that calls into question Carl Rone’s
testimony in the case. In postconviction, Hoskins retained forensic ballistics examiner
Frederick Wentling to provide evidence in support of his motion. Hoskins includes a
September 15, 2020 report from Wentling which, he contends, invalidates Carl Rone’s
testimony. He is mistaken. This 2020 report is not Mr. Wentling’s first exposure to
33
Super. Ct. Crim. R. 61(d)(2)
34
Id.21
this case. Hoskins retained Wentling in 2009 to provide forensic ballistics analysis in
support of his defense, at trial.35 Wentling and Hoskins’ trial counsel were given access
to Carl Rone, his case file and his laboratory (standard practice) to review the ballistics
evidence in this matter.36 On September 11, 2009, Hoskins revealed to the State the
substance of Wentling’s opinion.37 Ultimately, Hoskins elected not to call Wentling in
his defense at trial. Nothing contained in Wentling’s 2020 report is premised on
evidence unavailable to him in 2009 (when he actually handled the ballistics evidence).
Hoskins made a tactical decision by not calling Wentling as a witness. Hoskins’
allegations fail to make even a preliminary showing of his actual innocence of the
charges he committed in 2008. The only thing that has changed is Rone’s conviction
in 2018, for crimes committed after Hoskins’ trial. Which had no bearing on his firearm
competence.
In his reply to the State’s brief, Hoskins attempts to argue that the fact that his
current/former expert, (who Hoskins now claims totally invalidates Rone’s testimony),
was consulted by Hoskins’ trial attorney and reviewed the evidence fully prior to trial,
is irrelevant to this Court’s determination concerning whether he has presented “new
evidence of actual innocence.” Hoskins is incorrect. The ballistic evidence is the same,
as it was when Wentling had the opportunity to review the evidence before the trial.
Had Wentling concluded that it pointed to Hoskins’ innocence, it could have been
presented at trial. Hoskins’ circular argument appears to be that because we now know
that Rone falsified payroll records, (not forensic evidence), for his financial gain, that
somehow that changes the actual facts of his case; it does not. Hoskins presents no
evidence that would lead the Court to believe that Rone’s testimony in his trial was
false. If he had issues with Rone’s “methods” etc., he had the opportunity at his trial to
35
Letter from trial counsel referenced at Event number 14 in the Criminal Docket.
36
See Paragraph 7 of State’s Response to Defendant’s Motion in Limine. Daubert Hearing
37
Letter from trial counsel State’s Exhibit D
22
present that evidence with the very same expert he now wishes to use. That evidence
is not new.
Hoskins also contends that Carl Rone’s testimony was the only evidence offered
by the State to refute the defense ricochet theory. Hoskins is mistaken. Dr. Judith
Tobin, the State’s forensic pathology expert, conducted the autopsy of Brandon Beard
and testified at Hoskins’ trial.38 Dr. Tobin described the entry would as follows:
Now, this is the entry wound.
This is his back – here is the back of his head; and here is the entry
wound. You can see it is quite round. It’s a typical entry wound
really. It’s round.
There is slight beveling, which is – part of the wound is more
shallow. In other words, if the bullet goes – say this is the
person. If the bullet goes straight, then there would be no
beveling; it would be round.
If the bullet goes in from – I want to say the bottom, down here
– if it goes in slightly at an angle, you get a flattening or more
shallow beveled edge here. So, it doesn’t go straight down on
that side, and then it goes at an angle.
So, this beveling would imply that the bullet sort of came in at
an angle like this.39
Dr. Tobin further explained the beveling as follows: “See how this part is
shallower and this is deeper here, so that is probably came in at an angle like that or
like that.”40 Dr. Tobin went on to explain that the bullet entered the body and proceeded
through it at a 45-degree angle going from back to front and from “ inferior to superior,
that’s from down to up.”41 She also explains that the fact that the bullet went through
at a 45-degree angle did not necessarily mean that the bullet was fired at a 45-degree
angle because Beard’s body may have been bent over at the time he was shot.
38
Tobin Transcript.
39
Tobin Transcript, page 65 L 7-22
40
Tobin Transcript, page 66 L 3-5
41
Tobin Transcript, Page 68 L21-22
23
Especially if he was running trying to escape the gunfire. 42 Finally she stated that the
beveling on the wound was “slight, slight.”43 All of this testimony, corroborates Rone’s
testimony that the bullet had not ricocheted prior to entering Beard’s back.
Of course, Dr. Tobin’s evaluation of the entry wound was different than the
evaluation offered by the defendant’s expert, Dr. Arden. The jury was able to evaluate
both opinions and come to its decision. Additionally, as noted by the Supreme Court
in its opinion on Hoskins’ direct appeal, Alonzo West stated that Hoskins did not fire
the gun up in the air, in direct contradiction of Hoskins testimony, and was evidence
that Hoskins was in fact firing the weapon into the crowd. Of note also, is the fact that
Hoskins changed his story several times. Initially Hoskins said he wasn’t at the scene.
Next, he admitted he was there but didn’t see any shooting. Subsequently, at a second
interview he finally admitted to shooting “up in the air” but didn’t say what type of gun
he used. Only after hearing that the bullet that killed Beard was a 9mm did Hoskins
claim to have used a .22 caliber revolver.44 Only 12 - 9mm shell casings were found at
the scene. All of this evidence further contradicted Hoskins self-serving story, which
apparently the jury simply did not believe.
Additionally, of the 12 - 9mm shell casing that were found, 7 of them were
located together and the other 5 were located in another grouping several feet away
from the cluster of 7 casings. Importantly, West’s Ruger 9mm gun, which Hoskins was
accused of using, had only a 5-shell capacity and it was one of those bullets that caused
Beard’s death. West also testified that Hoskins had asked him to bring his gun when
they left Capitol Park. Hoskins in his motion attempts to suggest that there were
“multiple” guns used, i.e., several 9mm and possibly a .22 revolver and that the crowd
42
Tobin Transcript, Pages 70-76
43
Tobin Transcript, Page 76
44
The fact that he claimed to have shot a revolver is also interesting since revolvers typically do not
have shell casings thus providing a “reason” for why no .22 casings were located at the scene
24
may have been shooting at Hoskins. However, the one trained police officer who heard
the shots testified that he heard two bursts of gun fire. First a string of five shots,
followed by a string of four shots. Unlike the civilian witness, Officer Welch, as a
trained police officer, was more likely to have a better idea of the precise number of
shots fired. His testimony is closer to the physical evidence found on the scene of one
cluster of 5 shells and a separate cluster of 7 shells confirming the fact that only the
two 9mm guns were used. Interestingly, the fact that the first cluster Officer Welch
heard was a burst of five shots could indicate that it was West’s Ruger 9mm that killed
Beard was the first gun to have been fired. Consequently, wasn’t shot out of self-
defense or fear as Hoskins claimed. In this case there was far more evidence
supporting Hoskins’ guilt than merely Rone’s testimony. Hoskins had ample
opportunity to contradict Rone’s testimony during his trial with the very witness he
now alleges supports his actual innocence.
On August 14, 2009, Hoskins filed a Motion in Limine, or in the alternative, for
a Daubert Hearing seeking to preclude the State from introducing Rone’s ballistic
testimony. As noted by the State in its response, it answered this Motion on August 28,
2009. On July 1, 2009, the Defendant gave notice that Frederick M. Wentling was
retained to provide “Forensic Ballistics Analysis” in the matter. The State made Carl
Rone, his entire case file and his laboratory available to defense counsel and his expert
(Frederick M. Wentling). As a result of that review, Wentling’s opinion was provided
by defense counsel letter on September 11, 2009. Specifically, Hoskins informed the
State:
I expect that Mr. Wentling will testify that, based on his
knowledge, training and experience in the field of forensic
ballistics and firearm toolmark analysis, the evidence is not
inconsistent with the following: (1) the bullet that struck the
25
victim was fired from a distance, (2) the bullet ricocheted or
deflected off of a surface prior to striking the victim, and (3)
the bullet struck the victim and traveled at a 45-degree angle.
Mr. Wentling is also expected to testify about the range and
trajectory characteristics associated with a Ruger caliber
9mm Luger semi-automatic pistol, model P89-DC45
On September 23 and 28 of 2009, the Superior Court heard testimony and
argument on Hoskins’ Motion. The testimony included lengthy direct, cross and Court
questions regarding Rone’s methods. The Superior Court denied defendant’s Motion
on September 28, 2009, and Carl Rone testified to his conclusions at trial.
In October 2018, this Court, in State v. Pierce, 46 concluded that Rone’s expert
testimony regarding ballistics was sufficiently dissimilar and attenuated from his
falsification of his payroll records to not be an issue, finding:
The Court’s limited finding for purposes of this hearing
regarding Mr. Rone’s falsification of business records
creates a significant issue that the Court has carefully
weighed. Mr. Pierce is correct in that payroll records, chain
of custody records, and testing records are all “business
records.” In the Court’s overall evaluation, however, the
Court does not find the same motivation to be present when
submitting records seeking extra pay that was not earned,
compared to submitting allegedly false evidence logs and
testing documentation when handling evidence. There is
significant dissimilarity between these two types of business
records. Likewise, the two types of duties at issue regarding
Mr. Rone’s payroll submissions versus his expert testing and
evidence processes have significant differences. As a final
matter in the Court’s evaluation, Mr. Rone’s false
45
State’s Exhibit D. I note that Dr. Tobin also states that the bullet traveled “through the body” at a
45-degree angle, but the actual angle the bullet entered the body could have been quite different
depending on what position Beard’s body was in at the time he was struck by the bullet.
46
2018 WL 4771787 (Del. Super. Oct. 1, 2018)
26
verification in his payroll records occurred in 2016 and 2017.
In contrast, Mr. Rone’s relevant participation as a link in the
chain of custody for the subject casing was in 2009.47
Since that time, there have been other similar rulings, in State v. George, the
Superior Court stated that there was “nothing regarding the dismissal of Mr. Rone from
DSP and his subsequent arrest leads me to question the reliability of the work he
actually performed in connection with Defendant’s trial. Moreover, Defendant has
presented no evidence tending to show that the trial testimony given by Mr. Rone was
in any way false or misleading.”48
Hoskins argues that Fowler v. State stands for the proposition that a conviction
should be set aside when the reliability of key evidence that defendant was the shooter
was called into question.49 Hoskins case is distinguishable from Fowler. Fowler v. State
(Decided in August of 2018), where the Delaware Supreme Court reversed the Superior
Court’s judgment denying Fowler postconviction relief, finding that the Jencks
violations were not harmless error when combined with the credibility issue of the
State’s ballistic expert (Rone) witness.50 This was so because Fowler’s conviction was
based solely on Rone’s expert testimony and the only eyewitness to both shootings,
whose testimony was called into question by the Jencks statements.51 Here, we have a
much different scenario as there were no Jencks violations in this case and Carl Rone’s
expert certifications were not lapsed at the time of the trial. Additionally, Fowler dealt
with the first postconviction relief motion for that defendant. This is Hoskins’ second
postconviction relief motion which requests the exceptions contained in Rule 61(d)(2)
47
Id. at *4
48
State. v. George, 2018 WL 4482504, at *3 (Del. Super. Ct. Sept. 17, 2018), dismissing reconsideration, 2019
WL 338669 (Del. Super. Ct. Jan. 4, 2019).
49
Hoskins Corrected Second Rule 61 Motion at page 28.
50
See Fowler v State, 194 A.3d 16, 27 (Del.2018).
51
Id. at 21-22
27
be met before any relief can be given. As noted by the State Supreme Court in Dixon
v State. 52 The fact that Rone’ testimony was alleged to be “false and misleading” was
not based on “new evidence” but on evidence that had been available to the defense at
the time of trial.53 The burden to show “new evidence” is very high.54
Hoskins has presented nothing that was not available to the defense at the time
of trial to suggest that Rone’s trial testimony regarding ballistics was inaccurate or
unreliable. Hoskins complains that Rone, in the 12 years since he testified in Hoskins’
case, has pled guilty to falsifying his time sheets. Moreover, that plea involved conduct
that post-dated Hoskins’ crime by eight years. As this Court has stated, Rone’s criminal
conduct did not impinge on his work as a toolmark examiner. Indeed, Hoskins has not
suggested it has. Hoskins’ claim falls far short of “[pleading] with particularity that
new evidence exists that creates a strong inference” that he is actually innocent, 55
as
Rule 61 requires.
The Delaware Supreme Court has rejected ad hoc attacks on the credibility of
witnesses when there is no evidence that the witness’ credibility directly impacted the
case.56 Likewise, the Supreme Court has rejected the same type of argument requesting
an evidentiary hearing in cases where the trial and witness’ testimony predated the
52
2021 WL 3404223 (Del. Aug. 4, 2021)
53
Id. at 4
54
See, Pernell v State, 2021 WL 2470511 at 36-37 (Del. June 17, 2021)
55
Super. Ct. Crim. R. 61(d)(2)(i).
56
See Ira Brown v. State, 108 A.3d 1201, 1206 n.30 (del.2015) (holding that the evidence of employee
misconduct at the OCME was “impeachment evidence that came to light after Brown pled guilty and was
sentenced [and] did not go to his actual innocence or affect the voluntariness of his plea”). See also Anzara
Brown v. State, 117 a.3d 568,581 (Del. 2015) (defendant not entitled to a new trial where he could no
demonstrate that misconduct at the OCME affected his case); Bunting v. State, 2015 WL 2147188, at *3 (Del,
May 5, 2015) (rejecting defendant’s argument that he was entitled to relief based on misconduct at OCME
when he failed to allege or offer any proof that the misconduct compromised the integrity of his trial
proceedings).
28
alleged misconduct.57 For the foregoing reason, I recommended that Hoskins’ first
claim be denied.
Hoskins next claims that the trial counsel was ineffective for allowing the Court
to give an instruction on “intent to kill.” Pursuant to Superior Court Criminal Rule
61(d)(2) this claim meets neither requirement for relief. This claim does not concern
new evidence as contemplated in 61(d)(2)(i). It also does not claim any new rule of
constitutional law, made retroactive to cases on collateral review by the United States
Supreme Court or the Delaware Supreme Court pursuant to Rule 61(d)(2)(ii). This
claim is also procedurally barred as it could have been raised either on direct appeal or
in the defendant’s first postconviction relief motion that was filed in January 2012.58
Additionally, this claim fails on its merits because the trial court’s answer to the jury
question was firmly grounded in the law. The Superior Court did nothing more than
convey that which was codified in the Delaware Criminal Code describing the criminal
states of mind.59 The Court’s answer did not require the jury to find an intentional act;
rather, it simply elaborated on the statutory definition of “recklessness.” There was no
constitutional violation here and I recommend this claim be denied.
Finally, Hoskins claims that Rone’s testimony was unreliable. This claim
mirrors to Hoskins’ first claim and as detailed above is meritless. Additionally, this
claim must also meet the requirements of Superior Court Criminal Rule 61(d)(2) to
avoid summary dismissal. The defendant does not meet either burden in this claim.
Hoskins argues that Rone’s Testimony is flawed and the Wentling could prove
that point if he were able to “for the first time” review the ballistics evidence in this
case. However, Wentling was retained by trial counsel prior to both trials in 2009. As
previously noted, Wentling offered an opinion in this case in 2009. Wentling and trial
57
Cannon v. State, 127 A.3d 1164, 1168 (Del. 2015).
58
Mundy v. State, 788 A.2d 131 (Del. 2001)
59
11 Del.C. §253
29
counsel were given access to Carl Rone, his entire case file and Mr. Wentling was
given use of Rone’s laboratory to conduct his own analysis. For chain of custody
reason, the analysis had to be done at Rone’s laboratory.
After Wentling completed his analysis trial counsel provided the substance of
his forensics ballistics opinion by letter to the State on September 11, 2009. There is
nothing contained in the 2009 disclosed opinions that suggest unreliability with respect
to Rone’s opinion. Hoskins chose not to call Wentling at trial.60
Now, after reviewing the trial testimony and evidence, Wentling offers another
opinion regarding Rone’s testimony regarding the ricochet theory. A close review of
Wentling’s 2020 report reveals that he never reviewed Dr. Tobin’s testimony, Carl
Rone’s testimony during the Motion in Limine/Daubert Hearing, Carl Rone’s
testimony during the State’s case in chief, nor did he review his 2009 analysis of the
ballistics evidence. I recommend this claim be summarily dismissed.
Finally, Hoskins requests an evidentiary hearing. There is no constitutional right
to an evidentiary hearing or to expand the record in a postconviction proceeding.61
Rather, Rule 61(d)(2) provides that the Court must summarily dismiss a second
postconviction motion that has not been sufficiently pled under the Rule. 62 Because
Hoskins fails to plead actual innocence and makes no attempt to invoke a new rule of
constitutional law, Hoskins is not entitled to an evidentiary hearing.
Furthermore, Hoskins’ requested to review the ballistic evidence for a second
time. This request is moot. Wentling reviewed the firearms evidence in this case in
2009 and offered his opinion prior to trial. This should be denied. This claim does not
concern a new constitutional claim made retroactive by precedent. Defendant cites the
60
See Dixon v. State, 2021 WL 3404223, (Del. Aug. 4, 2021), (where evidence available at the time
of trial did not satisfy the requirement of Rule 61(d)(2)
61
Gattis, 697 A.2d at 1187-88.
62
Super. Ct. Crim. R. 61(d)(2).
30
2009 National Academy of Science report as calling into question Rone’s opinion. That
report was issued prior to Hoskins’ trial. As such it was available to trial counsel and
Wentling. In a similar case, the Delaware Supreme Court found:
Finally, we are not persuaded by Dixon’s argument that based
largely on the authority of a 2009 National Academy of
Science report, the nature of Rone’s ballistic analysis was so
subjective as to render the new impeachment evidence
decisive. Dixon had the opportunity to highlight the
subjective nature of toolmark analysis at his trial, which
occurred three years after the publication of the NAS report
and chose not to do so. We decline to expand the field of our
inquiry into areas that Dixon chose not to explore at trial 63
CONCLUSION
In reviewing the record in this case, it is clear that Hoskins has failed to avoid
the procedural bars of Rule 61(i). Consequently, I recommend that Hoskins’
postconviction motion be denied as procedurally time barred by Rule 61(i)(1) and (2)
as time barred and as a subsequent motion and as meritless.
/s/Andrea Maybee Freud
Commissioner Andrea Maybee Freud
AMF/jan
63
Dixon v. State, 2021 WL 3404223 at 4 (Del. Aug.4, 2021)
31