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:
2

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. 
3

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). 
4

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 
5

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). 
6

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 nontestimonial. 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). 
7

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.