Supreme Court upholds conviction of Dover man who conspired to rob casino patron

DOVER — The conviction of a Dover man accused of conspiring with a girlfriend to rob a casino patron of his winnings in March 2010 was upheld in Delaware Supreme Court on Monday.

James J. Durham had filed for post-conviction relief on Jan. 27, claiming his defense counsel should have objected to admission of his girlfriend’s immunity agreement into trial testimony, and citing a lack of instruction on accomplice credibility by a Superior Court judge.

“After a careful review of the record, we find that Durham did not suffer prejudice by counsel’s alleged failures and his remaining claim is procedurally barred,” Justice Collins J. Seitz Jr. wrote in an order, joined by Chief Justice Leo Stine and Justice Randy Holland.

Whether defense counsel’s performance was substandard did not apply, the Supreme Court said, since there was “an abundance of circumstantial evidence presented at trial supporting his guilt.”

A jury found Durham guilty of first-degree robbery, second-degree conspiracy, wearing a disguise during the commission of a felony and third-degree assault, documents said. He was sentenced to 27 years of prison as a habitual offender, followed by “decreasing levels of supervision.”

Durham earlier had requested a new trial based on his girlfriend’s recanting of trial testimony, and the motion was denied in Superior Court, documents said.

Regarding the testimony at trial, the Supreme Court determined “the language of the immunity agreement is not objectionable because it was taken directly from the Delaware Immunity Statute.”

While Durham argued the jury’s knowledge of the immunity agreement indicated the Superior Court judge’s belief in his guilt, the Supreme Court ruled “a grant of immunity did not constitute impermissible comment upon the evidence.”

Also the court pointed to jury instructions to base its decision on facts and consider the option of a not guilty verdict.

Citing case law, the court said all witnesses swear to be truthful upon taking the stand, and could be charged with perjury if they don’t. Also, the jury’s knowledge of the immunity agreement gave the defense opportunity to argue potential bias or motives by the witness, to the benefit of the defendant.

According to the Dover Police Department at the time, a Dover Downs patron was asked for a ride home by a woman in the parking lot, and a trip to the Towne Point neighborhood ensued. The woman exited the vehicle, authorities said, and a man quickly approached with a threat to shoot the patron if money was not handed over.

Court papers indicated the patron had earlier won $2,800 playing blackjack, and was tracked from inside and outside the casino. Durham was seen in surveillance video following the man, according to documents, including out of the Dover Downs parking lot and onto U.S. 13 southbound just prior to a robbery.

According to papers, the patron was carrying mostly $100 bills when approached in the parking lot by a woman offering to perform a “pole dance” for money. The duo departed for her apartment to locate the pole, papers said, and the robbery occurred upon arrival.

In making an arrest the next day, Dover Police said, Durham was found with 13 $100 bills and a $50; the girlfriend was found with 10 $100 bills and a $20 when taken into custody, papers said.

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