Opinion
N440.
November 25, 2003.
Daniel R. Cousins, Smyrna, DE 19977.
Dear Mr. Cousins:
On September 8, 2003, the Court received your Motion for Postconviction Relief. This is your first Motion for Postconviction Relief. It was filed within three years of the date of the mandate when your conviction was affirmed. That date was November 25, 2001. The Court obtained the positions of you and your attorney pursuant to Rule 61(g).
BACKGROUND
Following a jury trial, you were convicted on August 31, 2001 of two counts of rape in the first degree, one count of rape in the fourth degree, and unlawful sexual contact in the second degree. With the benefit of a presentence investigation, you were sentenced to thirty years incarceration, followed by probation. Following your conviction, there was a direct appeal to the Delaware Supreme Court which raised claims of misconduct by the prosecutor during closing argument. The Court found some of the claims to have merit, but the Court found that you were not prejudiced and therefore, the conviction was affirmed. Cousins v. State, 793 A.2d 1249 (Del. 2001).
On October 22, 2002, you filed a Motion for Acquittal under Superior Court Criminal Rule 29(c). That was also a lengthy application which raised the claims contained in the present postconviction application. That application was denied as being time-barred under Rule 29(c).
Whether or not any claim is procedurally barred will be addressed with each claim.
GROUNDS ONE THROUGH SIX
The bulk of the claims in the present Motion concern the Defendant's attack on the use of a videotape interview of the child witness. During the investigation of the case, the investigating authorities utilized the Child Advocacy Center for purposes of the interview. One of the goals of the Child Advocacy Center is to allow the investigating authorities to obtain an interview with an experienced interviewer, in a neutral environment which might be satisfactory to interested parties so that the repeated interviews of young children would be unnecessary.
Defendant's trial counsel received the tape of this interview on June 28, 2000. Because he had not received that tape earlier, the Defendant's trial counsel had previously filed a Motion in Limine seeking to exclude the tape under 11 Del. C. § 3513, which is the section of the Code creating an evidentiary exception for a young child's out-of-court statement, so long as certain conditions and safeguards exist. At trial, the child victim testified. Therefore, 11 Del. C. § 3513 was never in play. The videotape was admitted following the child's testimony pursuant to 11 Del. C. § 3507.
The Defendant argues that he should have had the benefit of 11 Del. C. § 3511 which sets forth a procedure for a videotaped deposition of a child witness. The videotaped deposition would be presented at trial in lieu of having the child testify live at trial.
The Defendant is mistaken in his belief that any videotape of the child must comply with 11 Del. C. § 3511. The videotape which was introduced was of an investigatory interview. It was not introduced until the child was presented for examination and cross-examination as required under 11 Del. C. § 3507. The Defendant's case did not involve 11 Del. C. § 3511 or § 3513.
All of the claims involving the introduction of this videotape are procedurally barred as these are evidentiary issues which could have been raised at trial and on appeal. Pursuant to Superior Court Criminal Rule 61(i)(3), the Defendant is barred from presenting these issues unless he shows cause for relief for the procedural default and prejudice from the violation of the Defendant's rights. He has not attempted to address the procedural bar of Rule 61(i)(3). Therefore, he has not shown cause for relief for the procedural default and I find no prejudice from the violations. As aforestated, there can be no prejudice because the Defendant is under the mistaken belief that both 11 Del. C. § 3511 and 11 Del. C. § 3513 barred the use of this investigatory videotape. Therefore, Grounds One, Two, Three, Four, Five, and Six are all procedurally barred as they deal with the videotape of the child witness.
In Ground Seven the Defendant attacks the competency of the child witness and complains that the voir dire as to her understanding of truthfulness was ineffective. This claim is procedurally barred. Following the voir dire, the Court permitted the child to testify citing 10 Del. C. § 4302 and Feleke v. State, Del. Supr., 620 A.2d 222 (1993). There was no appeal of this decision. Therefore, there has been a previous adjudication as to this matter which was unappealed and is procedurally barred under Rule 61(i)(4). To the extent the Defendant could have sought a review of this decision, it is barred under Rule 61(i)(3) as there has been no explanation as to why the Defendant did not pursue the matter on appeal. Nor has the Defendant shown any prejudice.
Grounds Eight and Nine involve allegations of prosecutorial misconduct. Ground Eight is difficult to follow, but it appears the Defendant complains that there was prosecutorial misconduct because of inconsistencies in testimony. Therefore, the Defendant concludes the prosecution ignored its responsibilities by presenting "obviously known false testimony". Defendant has provided no basis for his complaint other than stating inconsistencies exist in the record of his case. I do not find the Defendant has laid any basis for a conclusion that the prosecutor intentionally or negligently suborned perjury.
As noted earlier, the entire attack on direct appeal was a series of allegations of prosecutorial misconduct. That attack failed. These claims could have likewise been presented and therefore are barred under Rule 61(i)(3) as explained above. In passing on the lack of prejudice, I note that it is a rare trial that there are not some inconsistencies in the testimony of either witnesses or in the testimony of a single witness. The Defendant so acknowledges, but complains that the prosecutor "ignored his responsibility to impeach the government's own witness". I do not agree with that conclusory observation. For the aforementioned reasons, Ground Eight is procedurally barred.
In Ground Nine, the Defendant criticizes the prosecutor's closing argument and argues misconduct occurred. I again repeat, the Defendant raised arguments of closing argument misconduct on direct appeal. I've reviewed the transcript of the pages that Defendant references in his motion. Comments as to how the Defendant's credibility may have been affected by the consumption of 24 beers in ten hours was not an improper argument. The consumption of a large quantity of alcohol during the time of the alleged criminal conduct was relevant for the prosecutor to raise. The Defendant is procedurally barred from raising the present complaint as he has not addressed the Rule 61(i)(3) bar. He offers no reason why it wasn't raised at trial or on appeal. Nor has he shown any prejudice.
The comment about "justice for the victim" was previously adjudicated on appeal and there is no need to revisit that issue as it is barred by Rule 61(i)(4). The Supreme Court found no prejudice so the matter is at an end.
I've reviewed the pages in the transcript where the Defendant alleges the State was making inflammatory and/or vouching remarks. The Defendant is wrong. The transcript does not support his arguments.
Therefore, in applying the procedural bar of Rule 61(i)(3), I note the Defendant has offered no reason this issue wasn't raised earlier, nor has he shown any prejudice. Argument Nine is dismissed.
In Count Ten, the Defendant alleges that it was plain error to allow multiple counts and therefore multiple punishments to be pursued from an alleged single act. Defendant alleges that from a temporal viewpoint, he should have been prosecuted for a single act because it all occurred at the same time. While this may have been a single act of sexual gratification for the Defendant, it constituted separate sexual acts such as vaginal intercourse and oral intercourse. The evidence established that there were separate sexual acts and crimes that took place when the Defendant molested this young girl. Wyant v. State, 516 A.2d 649 (Del. 1986).
This claim is also a claim that could have and should have been raised at the time of trial and on appeal but wasn't, and therefore is procedurally barred under Rule 61(i)(3). I especially note that there was no prejudice to the Defendant because of the Defendant's misunderstanding as to what constitutes a single offense.
In Argument Eleven, the Defendant complains that the court committed judicial misconduct in dismissing his Motion for a judgment of acquittal filed approximately one year after his conviction was affirmed by the Delaware Supreme Court. This complaint has nothing to do with his original conviction. This is a frivolous claim under Rule 61 and it is denied.
In Argument Twelve, the Defendant alleges ineffective assistance of counsel. These claims, having been brought for the first time, are not procedurally barred and should be addressed by the court on their merits.
Claims of ineffective assistance of counsel must meet a two-part test under Strickland v. Washington, 466 U.S. 668 (1984). First the Defendant must show that his attorney's representation fell below an objective standard of reasonableness. In other words, he must show his counsel committed unprofessional errors in either the preparation for or trial of his case.
But it is not enough for the Defendant to show that errors occurred. It is not enough for the Defendant to show the errors had some conceivable impact on his trial. The Defendant must show that there was a reasonable probability that had these errors not occurred, the result of the proceedings would have been different. If the Defendant fails on either the error prong or the prejudice prong, he fails on the ineffective assistance claim.
The court will attempt to address each of the claims of ineffective assistance of counsel, even though some are difficult to understand
1. The first claim of ineffective assistance of counsel is difficult to decipher. He references the testimony of Rosemary Hammond. Ms. Hammond was called as a defense witness for the purposes of establishing bias and potential motivation for fabrication on the part of the victim's grandmother. Rosemary Hammond was not helpful. While she testified she was present during alleged conversations, it is apparent she was out of earshot and was repeating what others had told her. Presumably the Defendant is complaining that this other person, Liz Rogers wasn't present to testify. Assuming a more thorough pretrial interview with Ms. Hammond would have revealed that Ms. Hammond had no direct knowledge of the grandmother's alleged comments and also revealed they should subpoena Liz Rogers, defendant's ineffective assistance of counsel still fails. There has been nothing offered as to what Liz Rogers' testimony might have been and how it could have changed the outcome of the trial. The Defendant offers nothing to establish prejudice. I also note that this attack was pursued through other means at trial. This ground fails.
The Defendant also complains that Ms. Hammond knew more than she testified to, but due to her medical condition must have forgotten. Defendant claims his attorney was ineffective for not getting the witness to sign an affidavit when she was first interviewed, thereby preserving what the Defendant thought she'd say. I do not find counsel ineffective on this basis. There is no evidence to support Defendant's theory. There is no prejudice shown and this ground fails.
2. The next complaint concerns DNA testing. The Defendant alleges his trial counsel was ineffective by failing to obtain exculpatory DNA evidence which would have directly corroborated the statements the Defendant made to the police. After reviewing the trial transcripts and the evidence, I find that the Defendant has not met his Strickland burden.
A pair of blue shorts was seized from the Defendant at the time of his arrest. The Defendant acknowledged these were the same shorts that he had worn the day before, which was the day of the alleged crime. DNA testing was conducted on the shorts. Seminal fluid of the Defendant was found on the shorts. The DNA analysis was also done to see whether any of the victim's DNA was on the shorts. Her DNA was not found on the shorts. Other non-sperm DNA or what is called epithelial cell faction was found on the shorts. The majority was that of the Defendant, as might be expected. Some was determined to be from another person and that person was categorized as "unknown individual".
The Defendant alleges that DNA testing of Danae Abney would have established that the unknown DNA was hers. Danae Abney was the fiancee' or girlfriend of the Defendant. She testified at trial that she was interviewed by the police the day after the Defendant was arrested. She told the police that she had had sex with the Defendant in the same bathroom that the Defendant was alleged to have had sex with the child. By her account, this occurred three or four days before the incident resulting in Defendant's conviction. She reported that the Defendant had been wearing the same blue shorts that were taken from him four days later as evidence.
I have reviewed the testimony of Danae Abney, the Defendant's taped statement to the investigating officers and the testimony as to the DNA.
I do not find that trial counsel was ineffective for not obtaining DNA from Danae Abney in order to establish that she was the "unknown donor" of DNA found on the Defendant's shorts. She testified that she was his fiancee' and that she had sexual relations with him. To confirm her DNA was on his shorts would not have been helpful.
Defendant's final argument is that testing the DNA of the unknown individual would have had a collateral beneficial impact as to his statement. The statement that the Defendant gave to the police was that the shorts he was then wearing were the same shorts worn the night before, i.e. the night of the alleged incident with the child. He told the police that he had not had sexual relations with anyone while he had been wearing those shorts and that there should be no semen found on them. To the contrary, the DNA testing found his semen in his shorts. Finding Danae Abney's DNA would not have corroborated his statement, but would have potentially contradicted his statement to the investigating officers.
The Court is sensitive to DNA testing which may provide exculpatory evidence but this allegation is baseless.
3. Defendant alleges that his attorney was ineffective by agreeing to a postponement of a defense Motion in Limine and this resulted in illegal evidence used at his trial. The Defendant is wrong. The Motion in Limine that Defendant references was a Motion filed by trial counsel before he had obtained the Child Advocacy Center videotape of the investigatory interview. The Motion in Limine was based upon the then belief that the State was going to use the tape under 11 Del. C. § 3513 as a hearsay exception. Since that did not occur, there was no reason to pursue the Motion in Limine hearing. This Ground is denied.
4. The Defendant complains that his attorney should have objected to allowing the videotape to go into the jury room during deliberations. The jury is allowed to have exhibits and if audio tape or video tape is in evidence, the jury gets any equipment to play it. The videotape was introduced into evidence. This was not videotaped testimony in lieu of live testimony by way of 11 Del. C. § 3511. Nevertheless, assuming an objection could have prevented the videotape from being considered during jury deliberations, the Defendant has established no prejudice whatsoever other than his conclusory claim that he was denied a fair trial. The claim fails.
5. The Defendant alleges that his trial counsel was ineffective to object to the State's "badgering of the defense witness". The Defendant neither establishes this conclusory claim as being error on his attorney's part, nor does he establish any prejudice. This ground is denied.
6. The Defendant alleges that he requested that his trial attorney obtain a continuance so as to "secure first hand testimony of Janicia Thomas". The Defendant claims he was denied a fair trial by not having this witness available. This witness was subpoenaed by the State, but didn't appear because she hadn't been served. Ms. Thomas is a medical doctor and was the examining physician for the child. She saw the child the day after the incident occurred. Defendant fails to establish how this proposed witness' testimony would in any way be helpful. He makes no proffer. It is important to note that the registered nurse who was also present during the examination did testify at trial. The jury heard that the doctor's report found no obvious signs of trauma, but there was reddening of the labia. I do not find that the absence of the doctor would have in any way impacted upon the verdict. The testimony would have been cumulative as the defendant, through cross-examination of the nurse, was able to introduce the evidence which was favorable to him. Since there is no prejudice, this claim fails.
7. The Defendant complains that his attorney failed to sufficiently explore voir dire of the witnesses and thereby allowed false testimony. (See Ground Seven). Thus he did not get a fair trial. These are conclusory statements upon which I can neither find that counsel fell below an objective standard of reasonable professionalism nor can I find prejudice.
8. The Defendant complains that his attorney did not object to improper comments by the prosecutor in closing arguments. This claim has been previously adjudicated indirectly in that the Delaware Supreme Court has found that there was no prejudice to the Defendant by any of the comments of the prosecutor regardless of their appropriateness. Therefore, he cannot meet the second prong of Strickland and this allegation provides him no relief. His additional claims of prosecutorial misconduct in closing argument have been resolved against the Defendant in this decision. Therefore, there is no prejudice.
9. Following his guilty verdict, the Defendant filed a pro se motion for judgment of acquittal pursuant to Superior Court Criminal Rule 29. The Court responded that it only acts on motions filed by attorneys, when attorneys represent the parties. Defendant complains that his lawyers should have then pursued his Rule 29 motion. Having had the benefit of a jury trial, direct appeal and this Rule 61 application, I do not find Defendant's attorneys to be ineffective for not refiling his motion nor do I find Defendant has established any prejudice.
10. The Defendant alleges that his attorney did not tell him that he had been disciplined by the Delaware Supreme Court on another case and therefore he was somehow prejudiced in having this attorney represent him in his case. This claim is frivolous. Each case must stand on its own legs and what happened in another case involving his trial attorney and the jury selection process in the other case is irrelevant. This claim is denied.
Finally, in the Thirteenth complaint, the defendant alleges newly discovered evidence. A Rule 61 application is not the appropriate vehicle for presenting newly discovered evidence. Newly discovered evidence must come forward by way of Superior Court Criminal Rule 33. Therefore, I shall apply Rule 33.
Defendant's newly discovered evidence is a letter he received from a recently divorced individual that would like to meet him. In the letter this individual makes disparaging remarks about some of the State's witnesses which would be irrelevant and inadmissible at trial. Therefore, even had the defendant filed the motion under Rule 33, it has no merit.
For the aforementioned reasons, the Defendant's Motion for Postconviction Relief is denied.