Opinion
ID No. 0208005710.
Submitted: January 29, 2007.
March 22, 2007.
Carlos Ortiz, SBI No. 00485068, Delaware Correctional Center, Smyrna, DE.
John K. Hyde, Esquire, Office of the Public Defender, Georgetown, DE.
Melanie C. Withers, Esquire Department of Justice, Georgetown, DE.
Dear Mr. Ortiz and Counsel:
This is my decision on defendant Carlos Ortiz's ("Ortiz") motion for postconviction relief. Ortiz was convicted of two counts of Rape in the First Degree, one count of Attempted Rape in the First Degree, six counts of Possession of a Firearm During the Commission of a Felony, one count each of Kidnaping in the First Degree, Possession of a Firearm by Person Prohibited, Burglary in the First Degree, Aggravated Menacing, Terroristic Threatening, Criminal Contempt, and three counts of Endangering the Welfare of a Child. The convictions arose out of Ortiz's rape of his estranged wife, Marisol Ortiz ("Marisol"). Ortiz and Marisol were separated. During the night of August 8, 2002, Marisol awoke to find Ortiz in her bedroom. He pointed a gun at her and demanded that she come back to him. Ortiz also wanted to have sex with Marisol. When Marisol refused, Ortiz raped her. While this was happening in Marisol's bedroom, her children, Geovany, Carlos, Jr., and Karla, were paralyzed with fear in the living room. Marisol eventually escaped and ran next door to her brother's house for help.
I sentenced Ortiz to 84 years at Supervision Level V, suspended after serving 68 years for declining levels of probation. The Supreme Court affirmed Ortiz's convictions on January 15, 2004. Ortiz filed his motion for postconviction relief on November 14, 2005. This is his first motion for postconviction relief and it was filed in a timely manner.
Ortiz v. State of Delaware, 841 A.2d 308, 2004 WL 77860 (Del. Jan. 15, 2004).
Ortiz alleges that (1) his attorney was ineffective, (2) the Court did not determine that statements made by his children to Detective John B. Mitchell ("Mitchell") and introduced into evidence pursuant to 11Del.C. § 3507 were made "voluntarily," (3) the Court improperly commented on the evidence, and (4) the State of Delaware (the "State") failed to turn over exculpatory evidence to his attorney. The State was represented by Deputy Attorney General Melanie C. Withers ("Withers"). Ortiz was represented by Karl Haller ("Haller"). Haller and Withers filed affidavits responding to Ortiz's allegations. Given the nature of the allegations, I have concluded that an evidentiary hearing is not necessary.
I. Ineffective Assistance of Counsel
A. Trial Preparation
Strickland v. Washington, 466 U.S. 668 (1984).
Strickland, 466 U.S. at 687.
Id. at 687.
Id. at 687.
State v. Coleman, 2003 WL 22092724 (Del.Super. Feb. 19, 2003).
Coleman, 2003 WL at *2, quoting Strickland, 466 U.S. at 689.
Haller and an investigator went to the crime scene, a mobile home in the Walker's Mill Mobile Home Park, and took photographs. While at the mobile home park, they tried to see if there was anyone who had information about the crimes. They could not find anyone who did. Haller, or his investigator, also interviewed everyone that Ortiz thought would be helpful to his case. Haller also got discovery from the State and its answers to Haller's request for a Bill of Particulars. The medical evidence in the case was reviewed by Lisa Schwind, a DNA expert, who prepared a report for Haller. Haller also sent the discovery and other documents to Ortiz for his review. He also met with Ortiz at the Sussex Correctional Institution ("SCI") and at the courthouse a number of times to discuss the case and prepare for trial. Given that Haller knew what each witness would say about the events, visited the crime scene, had the medical evidence reviewed by an expert, conducted dis cov ery, corresponded and met with Ortiz, and interviewed everyone Ortiz identified as a possible witness, I am satisfied that Halle r conducted a thorough investigation of the facts and was adequately prepared for trial.
Ortiz's chief complaint is that Haller allegedly did not investigate the allegations in a letter written by Carlos, Jr. In this letter, which was written while Carlos, Jr. was staying with the defendant's brother, Roberto Ortiz, Carlos, Jr. wrote that his father did not have a gun and that his mother made everything up. Haller, although admittedly skeptical of the contents of this letter, did use it w hen he cr oss-ex ami ned Car los, Jr . in an ef for t to und erm ine his cred ibi lit y. Thus, Haller used the information to Ortiz's benefit.
B. Client Meetings
Ortiz alleges that Haller failed to meet with him. This allegation is not supported by the record. Haller and an investigator met with Ortiz at SCI on December 23, 2002 and April 14, 2003. Haller also met with Ortiz at the courthouse before trial. In addition to these face-to-face meetings, Haller also regularly communicated with Ortiz. On at least seven occasions, Haller sent materials regarding the case to Ortiz. Ortiz wrote regularly to Haller. I am satisfied that Haller and Ortiz met enough times to properly prepare for trial.
C. Applicable Law
D. Witnesses
E. Mistrial
F. DFS Reports
Ortiz, 841 A.2d 308, 2004 WL 77860, at *2.
G. Failure to Develop a Defense
Ortiz alleges that Haller did not present a defense to the charges at trial. The record does not support this. All of the charges in this case arose out of Ortiz's rape of Marisol and occurred practically in front of his three children while he possessed a gun. Haller's defense was that the sex was consensual and that Ortiz did not possess a gun at all. He offered evidence in support of this defense. He got two of the three children to admit on cross-examination that, at times, they had stated that Ortiz did not have a gun and that Marisol had made everything up. Ortiz testified that Marisol made everything up to cover up an affair that she was having. Unfortunately for Ortiz, the jury believed Marisol and the trial testimony of the children, not the statements the children made while under the influence of Ortiz's brother.
II. 11 Del. C. § 3507 Statements
Ortiz alleges that the Court abused its discretion when it admitted Geovany's out-of-court statements to Mitchell. Marisol went to the hospital after Ortiz raped her for an examination. The children went with her. Mitchell came to the hospital and interviewed the children. During the trial Withers asked Geovany if he had spoken to Mitchell "freely and voluntarily." Geovany responded in the negative and then stated that Mitchell "called us into a room and we talked separately." Withers then asked him if "it upset [him] to have to talk to him that night" and Geovany responded "no." Haller objected to the admission of Geovany's out-of-court statements to Mitchell on the ground that they were not voluntary. I reviewed Haller's objection and determined that Geovany's statements were voluntary. This is the same argument that Ortiz made in his direct appeal to the Supreme Court. The Supreme Court held that the Court's decision was supported by sufficient facts in the record. The Supreme Court also found that "Geovany's testimony, when viewed in its tot ali ty, did not raise the issue of whether his statement was voluntarily made, and thus the trial court was not required to conduct voir dire to inquire into that issue." Since this issue was previously adjudicated in Ortiz's direct appeal it is now barred under Super. Ct. Rule 61(i)(4).
Transcript at C — 42.
Tr. at C — 42-43.
Tr. at C-43.
Ortiz, 841 A.2d 308, 2004 WL 77860 at *2.
Id. at *3.
III. Commenting on the Evidence
Ortiz alleges that the Court improperly commented on the evidence when it concluded that Geovany's out-of-court statements were not coerced. This argument has no basis in fact. When Withers sought to introduce Geovany's statements pursuant to 11 Del.C. § 3507, Haller objected because, in his view, the statements had not been made voluntarily. The Court, in ruling on the objection, concluded that Geovany's statements had been made voluntarily and overruled Haller's objection. This was done at a side-bar conference outside the presence of the jury. Thus, the Court did not comment on the evidence in front of the jury.
IV. Brady Material
Ortiz alleges that Withers withheld the DFS reports from the defense. The DFS reports contained, as discussed previously, statements made by two of Ortiz's three children to Hill that were inconsistent with the State's theory of the case and were, as such, exculpatory. Thus, pursuant to Brady, they should have been turned over to the defense before trial. However, as I discussed prev iously, I stopped the trial when I learned that there had been a DFS investigation and ordered the State to get the DFS reports and give them to Haller. I also gave Haller time to review the reports and to prepare to examine Hill. Thus, I am satisfied that the State's failure to give the DFS reports to Haller earlier did not prejudice Ortiz, partially since Haller knew that Goevany had made similar statements long before the trial started.
Brady v. Maryland, 373 U.S. 83 (1963).
CONCLUSION
Ortiz's motion for postconviction relief is denied.
IT IS SO ORDERED.