Bass v. State

299 A.3d 336

Alan BASS, Defendant Below, Appellant, v. STATE of Delaware, Appellee.

No. 218, 2022

Supreme Court of Delaware.

Submitted: April 19, 2023

Decided: June 20, 2023

Patrick J. Collins, Esquire, Collins & Price, Wilmington, Delaware for Appellant.

Brian Arban, Esquire, Delaware Department of Justice, Wilmington, Delaware for Appellee.

Before SEITZ, Chief Justice; VALIHURA, and TRAYNOR, Justices.

VALIHURA, Justice:

I. Introduction

In June 1983, a Superior Court jury found Alan Bass ("Bass") guilty of two counts of Rape First Degree, three counts of Kidnapping First Degree, two counts of Robbery First Degree, one count of Attempted Robbery First Degree, two counts of Burglary Second Degree, and one count of Burglary Third Degree. The Superior Court sentenced Bass to five consecutive life sentences plus 45 years in prison. Bass appealed. In September 1985, this Court affirmed his convictions. ¹ The rapes, kidnappings, robberies, and burglaries were committed in Wilmington and Claymont between November 1981 and August 1982.

Before the instant postconviction motion on appeal, Bass filed six motions for postconviction relief. ² All six motions were denied. After Bass's six prior Rule 61 motions, on April 20, 2015, the Federal Bureau of Investigation ("FBI"), the United States Department of Justice ("USDOJ"), the Innocence Project, and the National Association of Criminal Defense Lawyers issued a joint statement (the "Joint Statement") in which the FBI announced the results of a years-long investigation into whether trial testimony by FBI forensic examiners contained erroneous statements regarding microscopic hair comparison ("MHC") analysis used in certain cases. ³ It announced that in cases prior to December 31, 1999, 26 of 28 FBI MHC examiners testified erroneously, and "[i]n the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 (96 percent) of the cases." ⁴ In a June 2015 letter, the USDOJ/FBI notified the Delaware Department of Justice ("Delaware DOJ") that their joint review determined that the testimony of the FBI forensic examiner who testified in Bass's case, Andrew Gary Podolak ("Podolak"), "included statements that exceeded the limits of science." ⁵ Specifically, the USDOJ/FBI determined that Podolak stated or implied that the evidentiary hair could be associated with a specific individual to the exclusion of all others.

Following the USDOJ/FBI's disclosure, Bass filed his seventh Rule 61 motion, with assistance of appointed counsel, wherein he asserted claims of actual innocence as well as two constitutional due process challenges under the 14 ^th Amendment to the United States Constitution. Bass sought a new trial or the dismissal of his indictment.

As part of his seventh Rule 61 motion, Bass asserted that the USDOJ/FBI's 2015 acknowledgment regarding the limitations of the MHC testimony constituted "new" evidence that creates a strong inference that he is actually innocent in fact of the charges of which he was convicted. ⁶ According to Bass, without this improperly admitted testimony, the State's remaining evidence was insufficient to support a conviction. As a result, he asserted that the State's use of this unreliable hair evidence violated his right to a fair trial and that he is entitled to a new trial.

Bass raised a second constitutional challenge after supplementing his initial Rule 61 motion. ⁷ He asserted that the State's failure to dismiss his indictment violated due process and demonstrated disparate treatment in view of the Delaware Attorney General's dismissal of an indictment in another case involving hair comparison evidence. ⁸

Bass's Rule 61 motion was referred to a Superior Court Commissioner pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62(a)(5). The Commissioner issued her Report and Recommendation ("Commissioner's Report") concluding that Bass's Rule 61 motion should be denied. ⁹

The Superior Court affirmed the denial. ¹⁰ Bass appealed the Superior Court's judgment. Oral argument before this Court occurred on April 19, 2023.

II. Factual and Procedural Background¹¹

A. Facts

Three separate incidents underlie Bass's June 1983 convictions. Each occurred between November 1981 and August 1982 in Wilmington and Claymont. The attacks, which involved three separate women, occurred within a few miles of where Bass was living in Delaware.

1. Attack on S.K. – November 1981

The first attack occurred on November 10, 1981, about a mile from where Bass was living in Delaware. At around 7:00 p.m., 20-year-old S.K. was finishing up her workday at a Northern Wilmington law office. While S.K. was speaking to a friend on the phone, a thin, well-dressed Black male entered the law office where she worked. He was wearing surgical gloves and carried a bag. ¹² He rushed to her and stuck a sharp object, which police later identified as a screwdriver, into her side. The man demanded that she not look at him, hang up the phone, and give him the petty cash that was in her office drawer. After taking the cash, the man ordered S.K. to call her friend back and tell the friend that she hung up because someone came into the office who needed her assistance, but that she would call back later. The man then went through S.K.’s purse and stole her watch, bracelet, and gold ring.

After taking S.K.’s jewelry, the man locked the front door and led S.K. to a conference room at the back of the law office. He again directed her not to look at him and covered her face by pulling her sweater up over her head. He had her lie face down on the floor, where he tied her feet with telephone wire he found in the office. He then directed her to stand up and remove her underwear and pants. The assailant did the same. He then made S.K. lie face up on the floor, with the sweater still blocking her view, and forced her to help him penetrate her vaginally. He raped her for 20 to 30 seconds but had trouble maintaining an erection. He did not ejaculate.

After raping her, the assailant got dressed and allowed S.K. to do the same. While she was putting on her clothes, S.K. caught a glimpse of her attacker's face. The assailant then stuck her in the side with the sharp object and ordered her to sit down while he tied another secretary's sweater around S.K.’s neck and put it in her mouth. He placed another sweater found in the office over her head. Finally, he tied S.K.’s hands behind her back, told her not to call the police, and left. Shortly after he left, S.K. untied herself and called her boyfriend and her employer. The police arrived at the scene shortly after S.K.’s boyfriend. They found a screwdriver in the conference room where S.K. had been tied up.

2. Attack on A.S. – July 1982

Eight months later, on July 10, 1982, at around 9:30 a.m., 26-year-old A.S. was beginning work alone in her office on the third floor of an insurance company in Claymont. She looked up from her work when a well-dressed, thin Black man entered her office. She viewed his face for 10 to 30 seconds before he ran to her and stuck a screwdriver in her side. He wore dark glasses and a cardigan sweater over his head, which covered the sides of his face and his hair.

The man forced A.S. to look at the floor and asked if she had any money. She offered him her checks from her purse. Taking her purse, he emptied its contents on the desk and then tore the strap off of her purse. The attacker then gagged A.S. by tying his sweater over her head, making it so she could only see his shoes.

The assailant then ordered A.S. to lead him around the office. After looking into other offices and making A.S. point out nearby exits, the man led A.S. into a conference room. He demanded her wedding and engagement rings, despite A.S.’s pleading for him not to take them. The assailant refused, threatened to kill her, punched her, took the rings, and then tied her hands and feet. He removed her underwear and pants and undressed himself. The man proceeded to vaginally rape A.S. for 60 to 90 seconds but, similar to the assailant in S.K.’s rape, had trouble maintaining an erection. He seemed frustrated, gave up, and said "forget it." He then redressed himself and A.S., retied A.S.’s hands and feet, covered A.S. with a raincoat, and left the building. A.S. waited about an hour before fleeing the office to a nearby restaurant, where she called the police and her husband.

Eight days before the attack on A.S., on July 2, 1982, a robbery was committed at the same insurance company in Claymont. The checkbook and dictating machine of A.S.’s co-worker, William Stevens, were stolen from his desk. That same day, Bass's long-time friend, Loretta Schoell, cashed a forged check belonging to William Stevens. Bass had given her the stolen check one or two hours beforehand. A dictating machine of the same make, model, and description as that stolen from Mr. Stevens’ office was found in Ms. Schoell's car.

3. Attack on S.M. – August 1982

About a month and a half later, on the morning of August 26, 1982, 30-year-old S.M. was working alone in her North Wilmington office when she was suddenly approached from behind by a man who covered her mouth. S.M. asked her assailant what he wanted. He responded by telling S.M. to shut up and asking if she had any money. S.M. said she had none.

The man then forced S.M. into a windowless lab room and struck her on the head. He became angry when S.M. tried to convince him the police were on the way to her office because her purse had been stolen weeks earlier. The assailant accused S.M. of lying and ordered her to kneel and to shut up. At some point during the assault, S.M. lost control of her bladder and urinated on herself. Shortly afterward, S.M. heard her assailant leave the room. He was in the office for a total of about three to five minutes. She then armed herself with a metal object and called the police. S.M. never saw her assailant's face.

Six weeks...