Opinion
C.A. No. S97-11-0516; UNLAWFUL SEXUAL INTERCOURSE 1ST S97-11-0517 UNLAWFUL SEXUAL INTERCOURSE 1ST S97-11-0518 CONTINUOUS SEXUAL ABUSE
Submitted: May 9, 2000
Decided: June 6, 2000
Defendant Richard D. McCane ("defendant") has filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") wherein he raises thirty-two issues. The Court has referred the matter to the Commissioner for proposed findings of fact and recommendations, and this constitutes such this 6th day of June, 2000.
PROPOSED FINDINGS OF FACT
On November 14, 1997, defendant was arrested on three charges: two (2) counts of unlawful sexual intercourse in the first degree in violation of 11 Del. C. § 775(a)(4) and one (1) count of continuous sexual abuse of a child in violation of 11 Del. C. § 778. The crimes were alleged to have occurred between July 16, 1994 and January 1, 1995.
The statute in effect at the time of the commission of the crimes, defendant's arrest, and defendant's conviction read:
(a) A person is guilty of unlawful sexual intercourse in the first degree when the person intentionally engages in sexual intercourse with another person and any of the following circumstances exist:
(4) The victim is less than 16 years of age and the defendant is not the victim's voluntary social companion on the occasion of the crime.
As explained in 11 Del. C. § 761:
(e) "Sexual intercourse" means:
(1) Any act of physical union of the genitalia or anus of 1 person with the mouth, anus or genitalia of another person. It occurs upon any penetration, however slight. Ejaculation is not required. This offense encompasses the crimes commonly known as rape and sodomy; or
(2) Any act of cunnilingus or fellatio regardless of whether penetration occurs. Ejaculation is not required.
***
(h) "Voluntary social companion" means a victim who is in the defendant's company on the occasion of the offense as a result of the, victim's exercise of rational intellect and free will, without trick, coercion or duress. A victim who is less than 16 years of age, or who is mentally defective, is not the voluntary social companion of a defendant in whose custody or care the victim is placed. A victim who is less than 12 years of age is not the voluntary social companion of a defendant 18 years of age or older.
In 11 Del. C. § 778, it is provided in pertinent part:
(a) A person is guilty of continuous sexual abuse of a child when, either residing in the same home with the minor child or having recurring access to the child, the person intentionally engages in 3 or more acts of sexual conduct with a child under the age of 14 years over a period of time, not less than 3 months in duration.
(b) Sexual conduct under this section is defined as any of those criminal sexual acts defined under ... § 775 ... of this title.
(c) To convict under this section, the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred, not on which acts constitute the requisite number.
Defendant was indicted on these charges on December 15, 1997.
On March 13, 1998, counsel for defendant ("trial counsel") presented a Motion for Bill of Particulars, and the Court instructed the State of Delaware ("the State") to submit such by March 27, 1998. On May 8, 1998, counsel presented another Motion for Bill of Particulars, and the State was instructed to provide the Bill of Particulars within two (2) weeks. The State filed a Bill of Particulars on May 22, 1998. On June 4, 1998, trial counsel presented another motion regarding the State's Bill of Particulars, arguing that the State failed to provide specific information as required. The Court agreed and instructed the State to file, by the end of the day, a Bill of Particulars specifying what act was alleged in Count 1 of the indictment and what act was alleged in Count 2. The State filed an amended Bill of Particulars on June 4, 1998.
Trial by jury commenced on June 8, 1998. Before commencement, trial counsel requested the entry of a sequestration order, and the Court granted that request.
Testifying for the State were the victim, the victim's sister, and the chief investigating officer ("the investigating officer") The substance of the victim's testimony is set forth below.
From July, 1994 until December 31, 1994, the victim, her sister and her mother lived with defendant, who was the victim's mother's boyfriend. They lived on a chicken farm in Milton, Delaware. During this period of time, the victim was seven (7)/ eight (8) years old.
Also during this time period, the defendant sexually molested the victim "every other few days, or every few days, or every week." Transcript from June 8, 1998 Proceedings at page 44. The incidents occurred sometimes in a chicken house and sometimes in the defendant's bedroom. The episodes in a chicken house involved defendant licking the victim's vagina and placing his penis in her mouth. The episodes in defendant's bedroom also involved defendant licking the victim's vagina and putting his penis in her mouth.
In November, 1997, the victim told her mother that defendant had molested her. The mother called the police and after an investigation was undertaken, defendant was charged with the three crimes noted above.
The investigating officer testified regarding his investigation. He confirmed that he had not visited the scene of the crimes because three years had passed since the crimes occurred. He also testified regarding his interviews of the victim, her sister and her cousin. He tape recorded the interviews of the victim, her sister and her cousin. During the trial, the taped interviews were played for the jury.
It was agreed that certain portions of the interviews needed to be redacted before the recordings were played to the jury. Unfortunately, comments by the cousin regarding the victim's reputation for truthfulness were not redacted. (Hereinafter, these comments are referred to as "the unredacted portion of the tape".) Trial counsel moved for a mistrial. The Court determined the error was inadvertent and reserved decision on the mistrial motion.
Defendant did not testify at trial; he has explained in his postconviction relief motion that he did not testify due to his prior felony convictions. The Court instructed the jury as follows regarding the defendant's choice not to testify:
The election of a person accused of a crime not to testify must not be construed or commented upon as an indication of his guilt. The defendant has a constitutional right to testify or not to testify as he chooses. The fact that the defendant did not testify must not be construed by you as an indication that the defendant is guilty of the crime charged. Like every other person charged with an offense, this defendant is presumed innocent until proven guilty beyond a reasonable doubt.
The jury, after deliberation, found defendant guilty as charged on all counts.
Subsequent thereto, defendant renewed his motion for a mistrial due to the playing of the unredacted portion of the tape and also moved for a new trial based upon statements by members of the jury to the prosecutor and the investigating officer.
The Court denied the mistrial motion, ruling as follows regarding the unredacted comment that the victim always told the truth:
In view of the testimony during the trial where it was apparent that the child didn't always tell the truth, it would seem to me that the statement, though an error, was not unduly prejudicial, that the comment that the child always told the truth was something that was clearly not true, and therefore, the jury was unlikely to have placed a great significance on the fact that her cousin thought she always told the truth.
Transcript of July 17, 1998 Proceedings at page 11.
The Court also addressed, at that time, the motion for a new trial. The episode involving the jurors was explained as follows to the Court at the presentation of the motion. After the verdict was rendered and after the jury was discharged, two jurors approached the investigating officer and indicated that they viewed the defendant unfavorably for not having testified. These two jurors approached the prosecutor the next day, expressed their unhappiness with trial counsel for being "too harsh on the child in his crossexamination" and said "they were angered by some of his specific arguments." Transcript from July 17, 1998 Proceedings at page 8. The Court denied the new trial motion.
On appeal to Delaware's Supreme Court, trial counsel asserted the trial court erred in denying the mistrial motion based upon the playing of the unredacted portion of the tape and in denying the new trial motion in light of the jurors' comments on defendant's failure to testify. The Supreme Court ruled that the Superior Court did not incorrectly deny the motion for a new trial due to juror misconduct and it did not abuse its discretion when it refused to grant a mistrial after the inadvertent playing of the unredacted portion of the tape. McCane v. State, Del. Supr., No. 343, 1998, Hartnett, J. (April 19, 1999). The Supreme Court affirmed the judgment of the Superior Court. Id.
On April 18, 2000, defendant filed the pending motion for postconviction relief. He filed supporting papers on May 9, 2000. I address, in the discussion section, all allegations contained in both documents.
DISCUSSION AND RECOMMENDATIONS
A) PROCEDURAL BARS
The Court first must determine if there are any procedural bars to the claims in the postconviction relief motion, and if there are, the Court must apply them. Younaer v. State, Del. Supr., 580 A.2d 552, 554 (1990)
This motion is not time-barred since it was brought within three years from the date when the conviction became final. Rule 61(i)(1). See Jackson v. State, Del. Supr., 654 A.2d 829, 833 (1995) . In addition, since this is defendant's first motion for postconviction relief, the bar of Rule 61(i)(2) does not apply.
In Rule 61(i)(2), it is provided:
(i) Bars to relief. ***
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim is warranted in the interest of justice.
However, the procedural bar of Rule 61(i)(3) applies to several claims. Therein, it is provided:
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.
As explained in Downes v. State, Del. Super., Cr. A. No. 94-09-0152, et al., Graves, J. (August 12, 1999) at 3: "This is a two-pronged requirement imposed upon the defendant, and if he fails to satisfy either the cause prong or the prejudice prong, then the procedural bar shall apply."
This defendant may avoid the bar of Rule 61(i)(3) if he shows "the court lacked jurisdiction" or if he establishes "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." Rule 61(i)(5). Defendant has not attempted to establish that either of these exceptions exist in connection with any of the claims which are procedurally barred pursuant to Rule 61(i)(3). Consequently, I recommend that the Court conclude these exceptions do not apply.
In addition, the procedural bar of Rule 61(i)(4) applies to several of defendant's allegations. The Court does not consider any ground for relief which was formerly adjudicated unless reconsideration of the claim is warranted in the interest of justice. Rule 61(i)(4)
In Rule 61(i)(4) , it is provided:
Former adjudication. Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
I now examine each ground which defendant has asserted.
B) GROUNDS OF MOTION
1) Statute of Limitations had Passed
Defendant contends that 11 Del. C. § 2902 provides a three year statute of limitations which bars the prosecution of the offenses. This ground is procedurally barred because defendant did not raise it in the proceedings leading to conviction. Rule 61(i)(3). Furthermore, he has not attempted to establish that an exception to the procedural bar exists.Id. Thus, I recommend the Court deny the ground as procedurally barred. In the alternative, I recommend the Court conclude this ground fails on the merits because even if defendant established the cause prong of the exception, he could not establish the prejudice prong.
Title 11 of the Delaware Code does not contain a section 2902. The pertinent statute of limitations appears in 11 Del. C. § 205 (b)(1), as it existed in 1997. At that time, the statute provided in pertinent part:
In 1998, this statute was amended to provide that a prosecution for any class A felony may be commenced at any time. 71 Del. Laws, c. 264 (1998).
(b) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:
(1) A prosecution for any felony except murder must be commenced within 5 years after it is committed....
Each of the charges on which defendant was prosecuted and convicted were felonies. The prosecution took place within the applicable statute of limitations period. Consequently, I recommend that the Court rule this ground to be meritless.
2) Abuse of Trial Court's Discretion
Defendant argues that the trial court abused its discretion by failing to grant a new trial after learning that the jurors had commented upon defendant's failure to testify, by not granting a mistrial after the State played the unredacted portion of the tape, by not ruling on the Motion for a Bill of Particulars, and "by permitting the prosecution of Defendant, in violation of the Law."
Defendant contends the State intentionally played the unredacted portion of the tape. The trial court found that the State had not intentionally allowed the objectionable statements to be played. Transcript of June 9, 1998 Proceedings at page B-12.
The contentions that the trial court abused its discretion by failing to grant a new trial after learning that the two jurors had commented upon defendant's failure to testify and by failing to declare a mistrial after the playing of the unredacted portion of the tape are procedurally barred because those issues previously have been adjudicated and defendant has not attempted to establish why they should be reconsidered in the interest of justice. Rule 61(i)(4). Thus, I recommend that the Court deny these grounds contained in the Rule 61 motion.
The contention that the trial court abused its discretion by not ruling on the Motion for a Bill of Particulars is procedurally barred pursuant to Rule 61(i)(3), and defendant has not established the existence of any exceptions to the bar. Thus, I recommend the Court deny the ground as procedurally barred. In the alternative, I recommend the Court conclude this ground fails on the merits because even if defendant established the cause prong of the exception, he could not establish the prejudice prong. The contention is meritless and frivolous because the Court did rule on all motions pertaining to a Bill of Particulars, and the State filed the Bill of Particulars as directed by the Court. Thus, I recommend that the Court deny this ground advanced in the Rule 61 motion.
Defendant alleges that the trial court abused its discretion in allowing the prosecution to proceed against him in violation of 11 Del. C. § 2902. As discussed above, defendant's argument regarding the statute of limitations is legally frivolous. Consequently, I recommend the Court deny this ground in the Rule 61 motion.
3) Inadmissible Evidence
Defendant contends he was prejudiced and his constitutional rights were violated when the trial court allowed the portions of the tape which were supposed to be redacted to be played. This ground, also, is procedurally barred as having been adjudicated previously. There is no reason to reconsider it. Consequently, I recommend that the Court deny this ground as procedurally barred.
In connection with this ground, defendant maintains as follows:
Inadmissible evidence, the state introduced a recorded statement of a highly prejudicial nature of the victim, after all the states [sic] witnesses and victim had left the court, thus precluding defense counsel the protected right to cross examine, see exhibit 13, #18-23.
I recommend the Court conclude this claim is procedurally barred pursuant to Rule 61(i)(3), and defendant has not established the existence of exceptions to the bar. In the alternative, I recommend the Court conclude the claim is meritless. Exhibit 13 is page B-11 of the Transcript from the June 9, 1998 Proceedings. Defendant misunderstands what occurred. The proceedings record the sidebar discussion on defense counsel's objections to the playing of the unredacted portions of the tape. Defendant's misunderstanding of what was occurring renders this claim factually and legally frivolous.
In light of the foregoing, I recommend that the Court deny this ground.
4) Legal Weight of Evidence was inadequate to Support Verdict
Defendant contends that there was insufficient evidence to convict him; in particular, there was no physical evidence to support the victim's contentions.
This ground is procedurally barred because defendant did not raise it on direct appeal. Rule 61(i)(3). Furthermore, he has not attempted to establish that an exception to the procedural bar exists. Id. Thus, I recommend the Court deny the ground as procedurally barred. In the alternative, I recommend the Court conclude this ground fails on the merits because even if defendant established the cause prong of the exception, he could not establish the prejudice prong.
"Delaware does not require corroboration of a victim's testimony in a sexual offense case...." Kelluem v. State, Del. Supr., 396 A.2d 166, 168 (1978). Accord State v. Harris, Del. Super., Cr. A. No. IN-88-08-1001-R1, Balick, J. (April 5, 1989) at 2. As further explained in Miller v. State, Del. Supr., 633 A.2d 370 (1993):
When the determination of facts turns on a question of credibility and the acceptance or rejection of "live" testimony, the trial court's findings shall be approved upon review. [Citations omitted.] If there is sufficient evidence to support the findings of the trial court, ... [the Supreme Court] must affirm. [Citation omitted.]
In this case, defendant could not establish prejudice because, upon viewing the evidence in a light most favorable to the State, it is clear there was sufficient evidence for the trier of fact to find beyond a reasonable doubt that defendant committed the crimes of which he was convicted. See In re Travatello, Cr. A. Nos. 95-04-0201-0204 (R1), Graves, J. (August 26, 1997), aff'd, Del. Supr., 710 A.2d 218 (1998).
In determining if there was sufficient evidence to support the verdict, the Court views the evidence in a light most favorable to the State and it determines whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt. Johnson v. State, Del. Supr., 737 A.2d 530 (1999).
In this case, the victim testified that the defendant both licked her vagina and put his penis in her mouth on a regular basis over a period of five months. Any inconsistencies concerned tangential matters; on matters of substance, the victim was consistent. See Coyle v. State, Del. Supr., No. 280, 1991, Walsh, J. (December 2, 1992) at 5-6. The victim's testimony constituted sufficient evidence to establish defendant's guilt on the three charges.
Based on the foregoing, I recommend that the Court conclude that this ground fails.
5) Perjured Testimony
Defendant contends that the victim committed perjury on the stand. In support of this contention, defendant cites to the following statement by the Court in commenting upon whether to grant a mistrial due to the playing of the unredacted portion of the tape:
Oh, the child always told the truth. In view of the testimony during the trial where it was apparent that the child didn't always tell the truth, it would seem to me that the statement, though an error, was not unduly prejudicial, that the comment that the child always told the truth was something that was clearly not true, and therefore, the jury was unlikely to have placed a great significance on the fact that her cousin thought she always told the truth. [Emphasis added.]
Transcript of July 17, 1998 Proceedings at page 11.
This ground is procedurally barred because defendant did not raise it on direct appeal. Rule 61(i)(3). Furthermore, he has not attempted to establish that an exception to the procedural bar exists. Id. Thus, I recommend the Court deny the ground as procedurally barred. In the alternative, I recommend the Court conclude this ground fails on the merits because even if defendant established the cause prong of the exception, he could not establish the prejudice prong.
Since the victim's lies were apparent, then the jury was fully aware of the lies. See Johnson v. State, Del. Supr., 587 A.2d 444, 447 (1991) . It was within the jury's purview, then, to resolve any issues concerning the victim's credibility and to weigh her allegedly conflicting accounts of the incidents. See Johnson v. State, 737 A.2d. As was discussed above, the victim's testimony, viewed in a light most favorable to the State, establishes the elements of the crimes for which defendant was convicted. That the victim may have been untruthful at times during her testimony does not provide a basis for overturning the jury's determination of defendant's guilt.
Based on the foregoing, it is my recommendation that the Court deny this claim.
6) Prosecutorial Misconduct
Defendant asserts the prosecutor committed the following acts of misconduct. She failed to comply with the Court's order regarding the Bill of Particulars. She intentionally allowed the unredacted portion of the tape to be played. She said, in opening statements, that she would introduce a tape of defendant, and she never did. She called defendant a monster. She commented upon defendant's silence. She communicated with jury members without defense counsel being present.
Each contention seeking to support this ground is procedurally barred because defendant did not assert any of these contentions in the proceedings leading to conviction. Rule 61(i)(3). Furthermore, he has not attempted to establish that an exception to the procedural bar exists.Id. Thus, I recommend the Court deny the ground as procedurally barred. In the alternative, I recommend the Court conclude this ground fails on the merits because even if defendant established the cause prong of the exception, he could not establish the prejudice prong.
I address each contention in the order they are listed above.
As has been noted before, the State did respond to the Bill of Particulars. Also, as has been noted earlier, the trial court found that the playing of the unredacted portion of the tape was unintentional. I recommend the Court hold these grounds to be merit less
In her opening statement, the prosecutor stated:
And, finally, you will hear from Detective Conlin, who interviewed the victim and tape-recorded the conversation he had with her, and you will be hearing that taperecording that the defendant made.
Transcript of June 8, 1998 Proceedings at page A-22.
From the context, it is clear that the use of the word "defendant" was a misstatement. I recommend the Court conclude this claim is meritless.
Defendant contends the prosecutor called him a monster. In her closing argument, the prosecutor argued as follows:
Defense counsel in his opening statement told you these are horrible allegations and they are, indeed. They are some of the worse [sic] allegations one human being can make against another in the entire world. This is horrible for the defendant, says his attorney, because they are — it's so difficult to defend yourself against allegations such as these. I would not disagree with that. On the other hand, what he also told you were — [sic] that these are the easiest allegations in the world to make. You have a child that says so and so did such and such to me. The whole world turns to him and believes him to be a monster. It may be an easy allegation to make, but [sic] is also one of the most difficult crimes to prove, because what you have is a small child versus a grown adult. We have a ten year old versus a 40-year-old man, her word against his. You rarely have an eyewitness in cases like this. You don't have them here.
Transcript of June 10, 1998 Proceedings at pages C-5-6.
Again, defendant's argument takes the prosecutor's remarks out of context. The prosecutor did not call defendant a monster. The Court should conclude this ground fails.
Defendant argues that the prosecutor violated defendant's Fifth Amendment right not to be a witness against himself by the statement: "We have a ten year old versus a 40-year-old man, her word against his."
No objection was made to this statement, and consequently, I recommend the Court conclude it is procedurally barred. Rule 61(i)(3). Even if the Court should review the remark in the context of an ineffective assistance of counsel claim, the claim would fail because there was no prejudice.
In order for there to have been prejudice, the prosecutor's comments must have been negative and uninvited, and they must have been prejudicial and must have impermissibly created an inference of guilt, when viewed in the context of the whole record. Robertson v. State, Del. Supr., 596 A.2d 1345, 1355-58 (1991); Miller v. State, Del. Supr., No. 434, 1998, Hartnett, J. (February 16, 2000)
In this case, the statement does not create an inference of guilt. To the contrary, it indicates that defendant asserted his innocence. The statement did not reference his refusal to testify. The comment did not constitute a violation of defendant's right to not be a witness against himself. Therefore, I recommend the Court conclude this ground fails.
Finally, defendant contends that the prosecutor communicated with jurors without defense counsel being present. As the prosecutor explained to the Court, two jurors approached her in the Courthouse the day after the verdict was rendered and after the jurors had been discharged from defendant's case. The prosecutor reported this contact to the Court. The question I address is not whether the contact was improper but whether the contact prejudiced defendant. No prejudice has been shown. Thus, I recommend the Court conclude this ground fails.
For the foregoing reasons, I recommend that the Court deny this ground of defendant's Rule 61 motion.
7) Misconduct of Investigating Officer
Defendant alleges as follows regarding this claim:
Investigator failed to visit — investigate the crime scene for which [sic] was an obligatory duty. Taped defendant during interview with a concealed recorder. Discussed defendants [sic] silence with jury members, employed suggestive questions.
Defendant further maintains that the investigating officer "employed a highly suggestive interviewing [sic] of the victim", in the presence of family members, and those family members testified for the State.
This ground is procedurally barred because defendant did not raise it on direct appeal. Rule 61(i)(3). Furthermore, he has not attempted to establish that an exception to the procedural bar exists. Id. Thus, I recommend the Court deny the ground as procedurally barred. In the alternative, I recommend the Court conclude this ground fails on the merits because even if defendant established the cause prong of the exception, he could not establish the prejudice prong.
I address each contention in the order in which defendant asserted them.
The investigating officer did not owe defendant a duty to investigate the crime scene.
Defendant fails to tie his contention that the investigating officer taped him during an interview with a concealed recorder to any harm done him, and this failure is fatal to his claim. Younger v. State, 580 A.2d at 555.
Two jurors approached the investigating officer after discharge and their comments to him were reported to defense counsel and the Court. Again, the question is whether any prejudice to defendant occurred in light of this contact. Again, no prejudice has been shown.
Finally, the investigating officer's interviewing techniques were subject to cross-examination. Defendant has failed to assert how he was prejudiced by these techniques. This failure is fatal to his claim. Id.
For the foregoing reasons, I recommend the Court conclude these complaints against the investigating officer are meritless and deny this ground of relief.
8) Newly Discovered Evidence
Defendant alleges:
Newly discovered evidence, after the conclusion of trial and conviction, Defendant learned of improper communications involving the prosecutor, the investigating-arresting officer and the Honorable Court. These communicates were conducted with Jury trial members and the bases were [sic] that defendant's guilt was inferred by Defendant's failure to take the stand.
He asserts that the jury's communications and references to petitioner's silence constitute newly discovered evidence. Defendant further maintains that there was exculpatory evidence discovered at the conclusion of the trial because defendant did not know that there was a tape of the interview conducted with defendant which the investigator secretly made but which was never produced at trial. He also asserts there are photos of the crime scene which defendant has acquired since his conviction.
This ground is procedurally barred because defendant did not raise it on direct appeal. Rule 61(i)(3). Furthermore, he has not attempted to establish that an exception to the procedural bar exists. Id. Thus, I recommend the Court deny the ground as procedurally barred. In the alternative, I recommend the Court conclude this ground fails on the merits because even if defendant established the cause prong of the exception, he could not establish the prejudice prong.
The assertions contained in the quote above are confusing. If defendant is alleging there were improper communications between the Court, the prosecutor and the investigating officer, that claim fails because no improper communications occurred. If what defendant is alleging is that it was improper for there to have been communications between the jurors and the investigating officer and the prosecutor, that claim fails because defendant has not shown any prejudice arising from the communications. Thus, I recommend the Court conclude this ground fails.
Defendant maintains that there was exculpatory evidence discovered at the conclusion of the trial because defendant did not know that there was a tape of the interview conducted with defendant which the investigator secretly made but which was never produced at trial. Again, defendant does not present any information on what this tape would establish in connection with defendant' guilt or innocence. The tape, if it exists, was not introduced at trial; consequently, it was of no harm to defendant during the trial. The absence of any intelligent comments regarding the tape precludes the Court from addressing its significance. Younger v. State, 580 A.2d at 555.
Defendant has not developed the argument regarding photos of the crime scene, and a conclusory allegation fails. Id.
Defendant further asserts:
Defendant has since acquired materials and information for which defendant counsel failed previously to secure and such information is believed to exonerate defendant from the substantial offenses.
Defendant fails to detail what the materials and information are and how they can exonerate defendant. This absence of details is fatal to defendant's claims. Id.
In conclusion, I recommend the Court deny this ground of the Rule 61 motion.
9) No Offer of Lesser Offenses
Defendant maintains that instructions on lesser-included offenses should have been given.
This ground is procedurally barred because defendant did not raise it in the proceedings leading to conviction. Rule 61(i)(3). Furthermore, he has not attempted to establish that an exception to the procedural bar exists. Id. Thus, I recommend the Court deny the ground as procedurally barred. In the alternative, I recommend the Court conclude this ground fails on the merits because even if defendant established the cause prong of the exception, he could not establish the prejudice prong.
There was no evidence which provided a rational basis for acquittal of defendant on the two (2) counts of unlawful sexual intercourse in the first degree and one (1) count of continuous sexual abuse of a child and for conviction of any lesser-included offense. Thus, there was no evidence to justify having the Court charge the jury on any lesser include offense. Webb v. State, Del. Supr., 663 A.2d 452, 462-63 (1995).
Based on the foregoing, I recommend the Court deny this ground.
10) Ineffective Assistance of Counsel
Defendant alleges that trial counsel was ineffective in a number of respects.
I turn to State v. Gattis, Del. Super., Cr.A. Nos. IN90-05-1017 to 1019, Barron, J. (December 28, 1995) at 7-9, aff'd, Del. Supr., 637 A.2d 1174 (1997), for setting forth the standard to apply to such a claim:
This type of claim is normally not subject to the procedural default rule, in part because the Delaware Supreme Court will not hear such a claim for the first time on direct appeal, and therefore as a practical matter the first opportunity to raise this issue is in a collateral attack such as the Rule 61 motion for postconviction relief. [Citations omitted.] For this reason, many defendants ... allege ineffective assistance of trial counsel in order to overcome the procedural default.
However, this path creates confusion for the defendant if he does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. For example, the United States Supreme Court has stated that
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth amendment itself requires that responsibility for the default be imputed to the State, which may not 'conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance.' Ineffective assistance of counsel, then, is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 487 (1986) (emphasis added). A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage in the two-part analysis enunciated in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by the Delaware Supreme Court in Albury v. State, Del. Supr., 551 A.2d 53 (1988)
The Strickland test requires the movant to show first that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Strickland at 687. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional errors the outcome of the proceedings would have been different, that is, actual prejudice. Id. at 694. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal. [Citations omitted.]
Generally, the claim for ineffective assistance fails unless both prongs of the test have been established. Strickland at 687. However, the showing of prejudice is so central to this claim that the Strickland Court stated that "[i] f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697. In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone.
Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation." Strickland at 689.
Defendant asserts that trial counsel presented no defense nor an explanation as to why he did not present a defense. The record clearly establishes that trial counsel thoroughly cross-examined each witness the State presented. Defendant has explained that he did not testify due to his felony convictions. Defendant, however, has not explained what defense his attorney could have presented in light of defendant's decision not to testify. These conclusory complaints are insufficient to state a claim. Younger v. State, 580 A.2d at 555.
Defendant maintains that the trial court expressed surprise at trial counsel not presenting a defense. That is not the case. The trial court expressed surprise at the quick completion of the entire case, which included the State's presentation. Transcript of June 9, 1998 Proceedings at page B-18.
Defendant argues that trial counsel failed to have the witnesses sequestered. Defendant's contention is wrong; defense counsel requested a sequestration order, which was granted. This claim is factually frivolous.
Defendant maintains that trial counsel failed to use material which defendant submitted to him. Defendant, however, does not explain what these materials were or how they would have impacted the outcome of his trial. Such conclusory allegations are meritless. Id.
Defendant maintains that he requested trial counsel to call witnesses on his behalf. Defendant has not set forth any names of witnesses whom he requested trial counsel to call nor has he explained to what these uncalled witnesses would have testified. The absence of these concrete allegations precludes consideration of this claim. Id; Tice v. State, Del. Supr., No. 346, 1995, Berger, J. (November 13, 1995) at 7.
Defendant maintains that he instructed trial counsel to take photographs of the chicken house, and trial counsel did not do so. Once more, defendant has failed to detail what it is any photographs would have established and how they would have changed the outcome of the trial. His conclusory allegations fail. The absence of these concrete allegations precludes consideration of this claim. Younger v. State, 580 A.2d at 555.
Defendant further alleges that trial counsel conducted no pretrial investigation, and an investigation of the alleged crime scene would have enabled defense counsel to present a defense and properly discredit the victim, who lied. Defendant's allegations here are vague. He fails to specify exactly what an investigation of the crime scene would have accomplished in connection with his defense and how the victim could "properly" have been discredited. The Court does not consider such conclusory assertions. Without a showing of prejudice, this claim fails. In re Jones, Del. Super., Cr. A. No. 97-09-0316(R1), Graves, J. (February 25, 1999) at 6.
Defendant further argues that trial counsel was ineffective because he failed to investigate "the history of the victim's credibility + past" and because he failed to have the victim seen by a doctor to insure her competence. Defendant, again, has failed to detail what an investigation into defendant's credibility and past would have shown and how such would have changed the outcome of the trial. This failure is fatal. Younaer v. State, 580 A.2d at 555. There was no question regarding the victim's competence. Defendant's broad assertion that his attorney should have had her seen by a doctor to insure such is conclusory and unsubstantiated, and that ground fails. Id.
Finally, defendant asserts that his attorney was ineffective because, with the exception of the tape and juror issues discussed in sections 2 and 3 above, trial counsel did not raise the above-discussed issues on appeal. However, as discussed above, no prejudice existed from the failure of these issues to be asserted in the proceedings leading to conviction. Since the prejudice prong cannot be established, the ineffective assistance of counsel claim fails. Consequently, this claim fails, also.
Based on the foregoing, it is my recommendation that the Court conclude defendant's claims of ineffective assistance of counsel fail.
C. RELATED REQUESTS
Defendant requested that counsel be appointed to represent him in connection with this motion. He is not entitled to have counsel appointed to represent him absent good cause shown. Rule 61(e). Defendant has not shown good cause for the appointment of counsel on this motion. Consequently, I recommend that the Court not appoint counsel in this matter. I also recommend that the Court conclude there is no need for a hearing in this matter since the Court may resolve the issues defendant has raised without a hearing. Rule 61(h)(3).
D. CONCLUSION
In light of the forgoing, I recommend that the Court not appoint counsel to represent defendant in the presentation of this motion, not conduct a hearing in the matter, and deny the Rule 61 motion.