Opinion
ID# 0009015005.
Submitted: July 20, 2004.
September 22, 2004.
Melanie C. Withers, DAG, Karl Haller, Esquire, Carole J. Dunn, Esquire.
Dear Mr. St. Louis:
Pending before the Court are the motions of James St. Louis ("defendant") for postconviction relief pursuant to Superior Court Criminal Rule 61 ("R. 61") and for appointment of counsel to represent him in connection with the postconviction relief motion. My decisions on the motions follow.
FACTS AND PROCEDURAL HISTORY
In September, 2000, defendant was arrested on charges of rape in the first degree involving his step-daughter, a victim less than twelve years old, in violation of 11 Del. C. § 773(a)(5); continuous sexual abuse of a child in violation of 11 Del. C. § 778; and incest in violation of 11 Del. C. § 766. The State of Delaware ("the State") nolle prossed the incest charge.
Defendant went to trial on the two remaining charges. At the time of trial, the victim was eight years old. The victim testified. She had been interviewed at the Children's Advocacy Center ("CAC") concerning the events that led to defendant's charges. That interview was videotaped, and this videotape was admitted, over defendant's objections, into evidence pursuant to 11 Del. C. § 3507. The jury found defendant guilty as charged.
In 11 Del. C. § 3507, it is provided in pertinent part as follows:
(a) In a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value.
(b) The rule in subsection (a) of this section shall apply regardless of whether the witness' in-court testimony is consistent with the prior statement or not. The rule shall likewise apply with or without a showing of surprise by the introducing party.
On June 22, 2001, defendant was sentenced as follows. As to the rape in the first degree conviction, he was sentenced to thirty (30) years at Level 5 and after serving twenty (20) years, fifteen (15) years of which were mandatory, at Level 5, the balance was suspended for probation. As to the conviction for continuous sexual abuse, he was sentenced to ten (10) years at Level 5, and after serving a mandatory two (2) years at Level 5, the balance was suspended for probation.
Defendant appealed to the Supreme Court, arguing that the trial court erred by failing to instruct the jury to disregard evidence concerning the charge of rape when considering the charge of continuous sexual abuse of a child. The Supreme Court found no error and affirmed the judgment of the Superior Court. State v. St. Louis, Del. Supr., No. 323, 2001, Steele, J. (May 24, 2002).
DISCUSSION
I. Postconviction relief motion
On May 30, 2003, defendant filed the pending motion for postconviction relief. The first step a Court takes when reviewing such a motion is to determine if any procedural bars exist; the Court only considers the merits of claims which are not procedurally barred. Ayers v. State, 802 A.2d 278, 281 (Del. 2002); Younger v. State, 580 A.2d 552, 554 (Del. 1990).
This matter has taken so long to come before the Court because of the wait involved in having portions of the trial proceedings transcribed.
Although the motion is not time-barred, Super. Ct. Crim. R. 61(i)(1), many of defendant's grounds for relief are procedurally barred otherwise as explained below. Defendant's remaining claims are based on ineffective assistance of counsel and are not procedurally barred. I examine those claims last.
In Superior Court Criminal Rule 61(i)(1), it is provided:
Time limitation. A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
A. Procedurally barred claims
Defendant makes the claims listed below which are procedurally barred pursuant to Superior Court Criminal Rule 61(i)(3). Defendant has not explained why he did not raise these arguments in the proceedings leading to the judgment of conviction. He also has not shown that the procedural bar does not apply because the Court lacked jurisdiction or because he has 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. Super. Ct. Crim. R. 61(i)(5).
In Superior Court Criminal Rule 61(i)(3), it is provided:
Procedural default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
In Superior Court Criminal Rule 61(i)(5), it is provided:
Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim 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.
For clarity's sake, I set forth each of the claims which are procedurally barred for the foregoing reasons.
1) Violation of Due Process Rights
Defendant sets forth his version of what occurred from the time he was arrested until when he was taken for his initial appearance before a Justice of the Peace pursuant to Superior Court Criminal Rule 5 and Justice of the Peace Court Criminal Rule 5. He bases his argument on his contention that he requested counsel for that appearance, but was not provided one.
2) Unsworn submissions
Defendant argues that the original affidavit of probable cause was not valid because the victim did not swear to the allegations contained therein. Consequently, the arrest was invalid and everything thereafter was invalid. Defendant also argues it was improper to admit the videotape of the victim pursuant to 11 Del. C. § 3507 because her statement was not under oath.
See note 1, supra, for text of statute.
3) Improper admission of tape under 11 Del. C. § 3507
Defendant argues that the videotape of the victim was improperly admitted under 11 Del. C. § 3507.
4) Violation of 11 Del. C. §§ 3508 and 3509
Defendant makes mostly unintelligible arguments asserting violations of 11 Del. C. §§ 3508 and 3509. However, I interpret one argument to be that the eight-year-old victim's watching a pornography tape constituted "sexual conduct" on her behalf which should have been addressed by way of these statutes.
In 11 Del. C. § 3508, it is provided in pertinent part:
(a) In any prosecution for the crime of any degree of rape, unlawful sexual penetration or unlawful sexual contact; . . . if evidence of the sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness the following procedure shall be followed:
(1) The defendant shall make a written motion to the court and prosecutor stating that the defense has an offer of proof concerning the relevancy of evidence of the sexual conduct of the complaining witness which the defendant proposes to present, and the relevancy of such evidence in attacking the credibility of the complaining witness.
(2) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.
(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at such hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant.
(4) At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant, and is not inadmissible, the court may issue an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.
In 11 Del. C. § 3509, it is provided in pertinent part:
(a) Notwithstanding any other provision of this Code to the contrary, and except as provided in this section, in any prosecution for any degree of rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, any opinion evidence, reputation evidence and evidence of specific instances of the complaining witness' sexual conduct, or any of such evidence, is not admissible by the defendant in order to provide consent by the complaining witness.
(b) This section, however, shall not be applicable to evidence of the complaining witness' sexual conduct with the defendant.
(c) If the prosecutor introduces evidence, including testimony of a witness, or the complaining witness as a witness gives testimony, and such evidence or testimony relates to the complaining witness' sexual conduct, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence introduced by the prosecutor or given by the complaining witness.
(d) Nothing in this section shall be construed to make inadmissable any evidence offered to attack the credibility of the complaining witness as provided in § 3508 of this title.
5) Violation of 11 Del. C. § 3511
Defendant asserts that the introduction of the videotape of the eight-year-old victim violated 11 Del. C. § 3511 and Superior Court criminal rules regarding the taking of depositions.
11 Del. C. § 3511 permits the use of videotaped testimony in lieu of live testimony by an available witness under the age of twelve years.
6) Allowing the deliberating jury to view the videotape of the victim denied defendant the right to a fair trial
Defendant argues that the jury should not have been allowed to view the videotape of the victim during its deliberations.
7) Introduction of prior bad acts
This argument also is unclear. Defendant appears to argue that it was improper for the prosecutor to present any evidence of prior bad acts of defendant preceding June 15, 1997, the date charged in the information, and she introduced these prior bad acts by way of the victim's videotaped statements indicating she had been molested at times prior to June 15, 1997.
8) Prosecutorial misconduct
Defendant asserts the following allegations of prosecutorial misconduct which he fails to premise on an argument of ineffective assistance of counsel.
i) The prosecutor expressed doubt about the existence of a pornography tape.
ii) The prosecutor is responsible for her "aids", and one such "aid" was Buster Richardson, who exhibited improper conduct.
In summary, each of the above claims fails because each is procedurally barred for the reasons set forth earlier.
B. Ineffective assistance of counsel claims
At trial, Karl Haller, Esquire and Carole J. Dunn, Esquire represented defendant. Defendant appears to address his ineffective assistance of counsel claims against Mr. Haller. However, I will consider them to be advanced against both counsel.
Some of defendant's claims of ineffective assistance of counsel were made in arguments labeled something other than ineffective assistance of counsel. Those claims would otherwise be procedurally barred (as were the claims examined above) except for defendant arguing trial counsel was ineffective in failing to raise them. Since the Supreme Court generally will not hear a claim for ineffective assistance of counsel on direct appeal, the procedural default rules do not bar those assertions of errors premised on ineffective assistance of counsel.
Where a defendant makes a claim of ineffective assistance of counsel, he must show that counsel's errors were so grievous as to fall below an objective standard of reasonableness and he must show to a reasonable degree of probability that but for counsel's unprofessional errors, actual prejudice resulted. Strickland v. Washington, 466 U.S. 668 (1984). If he fails to establish either prong, then his claim for ineffective assistance of counsel fails completely. In addition, the allegations must be concrete; vague and conclusory allegations fail.Younger v. State, 580 A.2d at 555.
1) Vague and conclusory allegations
At least two of defendant's claims fail because they are vague and/or conclusory.
The first such claim is that trial counsel failed to interview witnesses who would have been favorable to his defense. He provides the names of witnesses, but he does not set forth to what these witnesses would have testified. The lack of such specificity renders the claim vague and conclusory, and the Court denies it. Id.
Another of defendant's arguments is so vague that I cannot address it, and it fails for that reason. Id. That argument is as follows:
Also abusing her [the prosecutor's] position she did not permit defendant's wife to see video or to be present during taping of video which is against Delaware Code of Laws but not only Chris Fowler who is said victims [sic] biological father, but his girlfriend Eva to watch it. Then after trial judge explicitly said to talk to no one about the case they took Ashley (1A) to dinner and promised her presents and gifts for her testimony. The question of who paid for this meal is still in question. Ms. Withers pointed out in Court how Mr. Fowler was there to save Ashley from a protection home, and to take custody if need be (See IB). As the Family Court records show he never showed up to back up those statements even though Withers signed the paper for him, knowing that he was an un-convicted and untried rapist who fathered Ashley Graham.
Any time a prosecutor takes it upon herself to deliver justice and forget [sic] she is suppose [sic] to represent {all} the people and not just bolster her prosecutor record is a travesty of justice. Her duty is to find out the truth and not hinder the actions as she did with social services as seen in social services report, where she ordered investigators {not} to interview or have contact with Mr. St. Louis, but later we see where the mistakes was [sic] seen and interviewer did report falsely that an interview was completed. Granted Ms. Withers did not fill out these reports but is very attached to them through her authority? (See Exhibit 1C).
2) Objective standard of reasonableness prong
The first prong of the Strickland standard requires that the defendant overcome "'a strong presumption that the representation was professionally reasonable.'" Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). In assessing a trial attorney's conduct, the Court does not peer "through the lens of hindsight." Id. at 1356-57, citing Strickland v. Washington, 466 U.S. at 689.
I have reviewed the record, defendant's claims, defense counsels' joint affidavit, and defendant's response thereto, and I conclude that trial counsels' pre-trial investigation, preparation, and conduct during the trial were the product of sound trial strategy. I will, however, examine defendant's specific arguments.
a) One of defendant's main arguments is that trial counsel failed to view and to seek to introduce into evidence a pornographic tape which he contends the victim was caught viewing. Defendant's position is as follows. The victim accused defendant of sexual crimes because she was angry at him. She could so graphically describe a penis and sperm as well as sexual activities because she had seen a pornography videotape prior to making her accusations.
There is a factual dispute as to whether defendant agreed with trial counsel that the defense should not attempt to introduce this tape. However, for purposes of this motion, I will assume that defendant demanded trial counsel attempt to introduce the tape at trial and trial counsel refused to introduce it. I also will assume, without addressing the legal merits of such an assumption, that the Court would have admitted the videotape into evidence. See Payne v. State, 2004 Ga. App. LEXIS 691 (Ga.App. 2004); Cantrell v. State, 484 S.E.2d 751 (Ga.App. 1997).
At trial and in the joint affidavit trial counsel submitted, trial counsel explain that they did not want any mention of, let alone introduction of, the pornographic tape because they feared it would prejudice defendant. Transcript of Trial Proceedings of April 30, 2001, at CC-36; Affidavit of Trial Counsel dated September 4, 2003. Trial counsel were concerned that the jury would view the tape and look poorly upon defendant and his wife for possessing pornography. Id. Although trial counsel dance around stating the prejudice, the concern was that the jury would consider defendant a pervert for possessing the pornography in a situation where he was accused of perverted sexual acts.
Trial counsel did not want any mention of the pornography tape. However, the information that the victim had been caught watching a pornographic videotape was placed before the jury.
This was a sound strategic decision. Introduction of the tape itself easily could have caused the jury to consider defendant a pervert because he possessed such a tape. "The fact that defendant disagrees with his counsel's trial strategy is not grounds for relief on a claim for ineffective assistance of counsel." Zimmerman v. State, Del. Super., Cr. A. Nos. IN86-10-0550, et al., Goldstein, J. (September 17, 1991) at 9,aff'd, Del. Supr., No. 376, 1991, Walsh, J. (February 24, 1992). Accord State v. Mundy, Del. Super., Def. ID# 9611005019, Del Pesco, J. (April 12, 2001)at 13, app. den., 788 A.2d 131 (Del. 2001), citing Strickland v. Washington, 466 U.S. at 690-91. As further explained in State v. Mundy, supra:
The movant must demonstrate facts which indicate a "reasonable probability" the result would have been different had counsel handled movant's case differently. A reasonable probability is a probability sufficient to undermine confidence in the verdict or outcome. [Citations omitted.]
Defendant has not overcome the presumption that trial counsels' actions constituted sound trial strategy. This claim fails.
b) Defendant argues that trial counsel failed to introduce fourteen letters of character or call Georgia Davis as a character witness. However, a defendant is not allowed to offer evidence of general good character. Nieves v. State, 817 A.2d 804 (Del. 2003). There was no deficiency in trial counsels' representation for not attempting to introduce this evidence.
c) Defendant also argues trial counsel were ineffective for failing "to obtain medical records or expert testimony to show that said victims [sic] claims of vaginal and rectal intercourse were false". The State did not contend vaginal or rectal intercourse took place. Since that was not a part of the case, trial counsel did not need to obtain such information. There was no deficiency in trial counsel's performance.
d) Defendant alleges trial counsel were ineffective for failing to object to the prosecutor's statement in closing arguments that the State did not have proof or evidence on defendant. What the prosecutor actually said was that the fact there was no physical evidence did not prevent the jury from convicting defendant. Transcript of Trial Proceedings of April 30, 2001, at CC-113. This statement is a correct statement of the law.Owens v. State, 586 A.2d 1202 (Del. 1990) ("Testimonial evidence need not be corroborated by physical evidence in order to be accepted by the jury."). There would have been no basis for trial counsel to object; consequently, there was no deficient performance.
3) Prejudice prong
Since both requirements of Strickland must be met, it sometimes is easier to dispose of a claim under the prejudice prong. Strickland v. Washington, 466 U.S. at 697. Thus, even if counsel's performance was deficient, the ineffective assistance of counsel claim fails if there is no prejudice.
a) Defendant argues trial counsel were ineffective because they did not obtain medical records or expert testimony to show "that the appearance of pinworm on said victims [sic] rectum is highly contagious and defendant was not infected as the rest of said family. . . ."
Nothing in the record establishes that the rest of the family was infected with pinworms. In fact, the victim's mother testified that she did not know of any person in the family who has had them since [the victim had them]. Transcript of Trial Testimony of April 30, 2001, at CC-60. Furthermore, defendant has not established that he did not have pinworms and if he did not, that contact with the victim always would have resulted in his becoming infected. Absent such evidence, defendant cannot show that the outcome of his trial would have been otherwise. Therefore, he cannot establish prejudice. This claim fails.
b) Defendant contends trial counsel were unprepared to deal with the State's attempt to introduce evidence pursuant to 11 Del. C. § 3513 despite the prosecutor's forewarning she may be employing that statute. Since 11 Del. C. § 3513 became irrelevant, trial counsels' lack of preparation for that issue also became irrelevant. Defendant cannot show any prejudice. This claim fails.
This statute pertains to the admissibility of a child victim's out-of-court statement in certain circumstances.
c) Defendant makes a number of assertions of ineffective assistance of counsel based upon trial counsels' failure to object to acts of what defendant labels to be prosecutorial misconduct.
i) One argument, which is advanced several times, is that the prosecutor improperly interjected her opinion that Jeanine St. Louis, the victim's mother, was not being truthful in her testimony. Although at one point he argues the prosecutor "vouched" for Jeanine St. Louis, the remainder of this arguments clarify that he is attacking the prosecutor for, allegedly, expressing her personal opinion or belief about the credibility of Jeanine St. Louis or about the truth of her testimony.
Defendant clearly misunderstands what it means for a prosecutor to improperly "vouch" for a witness. Improper vouching is where a prosecutor's comments imply personal knowledge of the truth of a witness' statement.Williams v. State, 803 A.2d 927, 930 (Del. 2002);Clayton v. State, 765 A.2d 940, 943-44 (Del. 2001);Saunders v. State, 602 A.2d 623 (Del. 1984).
In this case, the victim was reluctant to testify against her stepfather. The evidence showed that reluctance to be based upon the victim's understanding that her mother Jeanine St. Louis continued to have contact with the defendant after his arrest. Transcript of Trial Proceedings of April 30, 2001, at CC-18. It also was established that Jeanine St. Louis had spent most of her married life as a stay-at-home mom, and once defendant was arrested, she had had to start working full-time; her life had become more complex and her financial situation had gotten much worse due to defendant's arrest.
Jeanine St. Louis testified that she considered the victim to be a liar while she considered her husband to be honest. Transcript of Trial Proceedings of April 30, 2001, at CC-68-9. In its closing, the defense argued as follows. A mother protects her young. Jeanine St. Louis knew both the victim and defendant well and she considered the victim to be untruthful. Since a mother's instinct is to protect her young, and since she obviously believed defendant over her own child, then the jury should trust the mother's assessment of who was credible. Transcript of Trial Proceedings of April 30, 2001, at CC-109-10.
The prosecutor sought to explain the victim's reluctance to testify and to discredit the mother and the mother's credibility assessment, arguing as follows:
Mrs. St. Louis has chosen her side here. She's chosen her husband's side. She wants to stay married. She's continued to visit with her husband since his arrest. She's continued to spend the night with him. She's told her child where she's been going when she's been going to go see her husband What kind of an affect do you think that's had on . . . [the victim] since September, to know that her mom is going to go stay with the defendant, that her mom wants to stay married, that her mom still loves the man who did this to her? Do you think maybe it might make it hard for her to talk about this? When she does, when she sits on this witness stand and she has to look at her stepfather, and she has to look at you all, a bunch of strangers, not only is she being asked to talk about something extremely embarrassing for even a grown-up, but when she talks about it, she's betraying not just her stepfather, but her mother as well. She's in a really tough spot.
So if you felt that she was not particularly eager to talk about this last week, I'd have to say you're right. . . . [T]here is a reason for that.
Transcript of Trial Proceedings of April 30, 2001, at CC-100-01.
[Jeanine St. Louis]'s basically a stay-at-home mom. She needs financial support. She knows what side of the bread it's buttered on, and she's made this decision that she has very sound reasons for. It doesn't mean she's a good mother or a protective mother just because she believes him, and it doesn't mean you all have to.
Transcript of Trial Proceedings of April 30, 2001, at CC-113.
A prosecutor may not advance his or her opinion or belief regarding a witness' credibility. Clayton v. State, 765 A.2d at 942-43. However, if the evidence supports the prosecutor's contentions regarding a witnesses' truthfulness, then the statement is not improper. Id. at 943.
The prosecutor's comments were based upon the evidence. The comment, "She knows what side of the bread it's buttered on", is the only potentially objectionable statement, and it, too, is supported by the evidence. There was nothing improper in these comments. Trial counsel was not ineffective for not objecting to the comments. This claim fails.
ii) Defendant maintains that the prosecutor's statement that Jeanine St. Louis went to CAC of her own free will was a false statement. Defendant is wrong. Jeanine St. Louis testified that she voluntarily went to CAC. Transcript of Trial Testimony of April 30, 2001, at CC-57. Trial counsel was not ineffective for not objecting to the prosecutor's statement. This claim fails.
iii) Defendant argues that trial counsel was ineffective for failing to object to the admission of evidence of prior bad acts. That argument is based upon his apparent contention that it was improper for the prosecutor to present any evidence of prior bad acts of defendant preceding June 15, 1997, the date charged in the information by way of the victim's statements in the videotape which indicated she had been molested before June 15, 1997.
The Court charged the jury as follows:
Also, you are instructed that you must not consider any evidence of bad acts, if any, between defendant and . . . [the victim] before June 15, 1997. Further, you must disregard any such evidence and not give it any consideration. The law in our country and Delaware is that a person is presumed to be innocent. A person only stands trial for the accusations in the charging document — in Count 2 the accusation is from June 15, 1997 to September 12, 2000 — not at any earlier time. You must not — in any way — infer the defendant is a person of bad character, and, therefore, is likely to have committed the charged offense in Counts 1 and 2. This is forbidden in our system of justice.
The jury is presumed to have followed the Court's instructions. Johnson v. State, Del. Supr., No. 616, 2003, Steele, J. (July 20, 2004) at 11. Defendant cannot show prejudice. This claim fails.
II. Motion for appointment of counsel
In light of the foregoing decisions, defendant's request for appointment of counsel is rendered moot. The motion is denied.
IV. Copy of transcript
I am providing defendant with a copy of Volume CC of the transcript of the trial proceedings on April 30, 2001, because that volume contains evidence pertinent to many of defendant's arguments.
III. Conclusion
For the foregoing reasons, the Court denies defendant's motions for appointment of counsel and for postconviction relief.