Opinion
Cr. I.D. No. 0310017732.
Submitted: August 30, 2010.
Decided: November 30, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.
Allison Texter, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Jonathan D. Black, Delaware Correctional Center, Smyrna, Delaware, pro se.
This 30th day of November, 2010, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. In April 2004, Defendant Jonathan D. Black was convicted by a Superior Court jury of three counts of unlawful sexual contact in the second degree. The jury acquitted Defendant of first degree rape. The Superior Court sentenced Defendant Black as a habitual offender to fifteen years at Level V incarceration on each conviction.
2. Defendant Black did not file a direct appeal. In May 2008, Defendant filed a motion for postconviction relief alleging that his trial counsel was ineffective for failing to file a direct appeal. The Superior Court granted postconviction relief and thereafter resentenced Defendant, with the assistance of substitute counsel, to the same forty-five year term of incarceration.
State v. Black, 2008 WL 2371522 (Del.Super.).
3. The facts giving rise to these offenses, as presented at trial, are as follows: In August 2003, Defendant Black resided with Nicole Blackston, the victim's aunt. Also staying at the residence was the child victim T.B., a four year old girl, and the victim's mother. During this period the Defendant would babysit the victim. In October 2003, the victim told her grandmother that the defendant had touched her "kitty," a term which the victim uses to refer to her genitals, as well as put his "kitty," referring to his genitals, on her butt. In a later interview at the Child Advocacy Center, the child further disclosed that Defendant was laying on a bed when he placed the victim on top of him. At this time, Defendant touched the outer area of the victim's vagina and buttock with his finger as well as touched the outer area of her buttock with his penis. During this interview, the child also indicated that Defendant placed his penis in her vagina. Defendant was arrested on October 26, 2003, and was charged with Rape in the First Degree and three counts of Unlawful Sexual Contact in the Second Degree. As previously stated, in April 2004, Defendant was convicted of the three counts of unlawful sexual contact in the second degree and acquitted of the charge of rape in the first degree.
April 2, 2004 Trial Transcript, pgs. 50-79
See, Black v. State, 2009 WL 804631, at *2 (Del.).
4. After being resentenced, Defendant Black then filed a direct appeal. On March 27, 2009, the Delaware Supreme Court affirmed Black's convictions and sentences. In Defendant's direct appeal, he raised various issues for the Delaware Supreme Court's consideration. First, Defendant contended that the Superior Court improperly questioned the child victim regarding her competency to testify in front of the jury. Second, Defendant contended that he was denied his constitutional right to effectively confront the child victim at trial. Third, Defendant contended that the evidence was insufficient to support his convictions. Defendant also asserted that the Superior Court committed plain error in sentencing him as a habitual offender. After consideration of each of the claims raised by Defendant, the Delaware Supreme Court concluded that Defendant's appeal was wholly without merit and affirmed the Superior Court's convictions and sentences.
Black v. State, 2009 WL 804631 (Del.).
Id.
5. On March 22, 2010, Defendant filed this motion for postconviction relief. After filing his motion for postconviction relief, Defendant requested, and was granted, additional time to file a memorandum of law in support of his motion. Defendant's memorandum of law in support of his Rule 61 motion was filed on June 10, 2010. Thereafter, before making a recommendation, the Commissioner enlarged the record by directing Defendant's trial counsel to submit an Affidavit responding to Defendant's claims. Trial counsel submitted an Affidavit and after receiving the State's response to Defendant's motion also filed a supplemental Affidavit. The State filed a response to the motion and Defendant filed a reply thereto.
Super.Ct.Crim.R. 61(g)(1) and (2).
6. In the subject motion, all of Defendant's claims are couched as ineffective assistance of counsel contentions. Defendant states five grounds for relief. First, Defendant contends that his trial counsel was ineffective for failing to challenge jury instructions. Second, Defendant contends that his trial counsel was ineffective for failing to challenge the medical report. Third, Defendant contends that his counsel was ineffective for failing to challenge his habitual status. Fourth, Defendant contends that his counsel was ineffective for failing to challenge the prosecutorial misconduct. Fifth, Defendant contends that his counsel was ineffective for failing to obtain exculpatory evidence.
7. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61. If a procedural bar exists, then the claim is barred and the Court should not consider the merits of the postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
8. Rule 61 (i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in a prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formally adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do 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. Moreover, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice."
If a final order of conviction occurred on or after July 1, 2005, the motion must be filed within one year. See, Super.Ct.Crim.R. 61(i)(1) (July 1, 2005).
Super.Ct.Crim.R. 61(i)(5).
Super.Ct.Crim.R. 61 (i)(4).
9. At the onset it is noted that Defendant's motion for postconviction relief is not time barred. The Delaware Supreme Court affirmed Black's convictions and sentences on March 27, 2009, and this motion, filed on March 22, 2010, was filed within one year of his final order of conviction. Although other procedural bars may apply to some of Defendant's claims, as more fully discussed herein, Defendant's Rule 61 motion was timely filed.
10. Since all of Defendant's contentions in his Rule 61 motion are couched as ineffective assistance of counsel claims, it is important to set forth the test that must be employed to determine if a defendant has met the standard to prevail on such claims. To prevail on an ineffective assistance of counsel claim, the defendant must meet the two-pronged Strickland test by showing that: (1) counsel performed at a level "below an objective standard of reasonableness" and that, (2) the deficient performance prejudiced the defense. The first prong requires the defendant to show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requires him to show that there is a reasonable probability that, but for defense counsel's unprofessional errors, the outcome of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Id. at 687-88, 694.
11. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. Although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy.
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
Strickland v. Washington, 466 U.S. 668, 689 (1984).
12. Furthermore, an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of conviction if the error had no effect on the judgment.
Strickland v. Washington, 466 U.S. 668, 691 (1984).
13. In the subject action, as discussed more fully herein, Defendant's ineffective assistance claims are undermined by the record and fail to satisfy Strickland. Defendant fails to state a legitimate ground for relief against his counsel.
14. Defendant's specific claims are addressed below.
1) FAILURE TO CHALLENGE JURY INSTRUCTIONS
15. Defendant first contends that his counsel was ineffective for failing to challenge the jury instructions in two instances. Defendant alleges that the jury was not properly instructed in regard to the portion of the child-victim's testimony that determined competency to testify or to the expert testimony presented at trial. 16. Initially it is noted that a defendant does not have a right to have the jury instructed in a particular form. The defendant is entitled to have the jury instructed with a correct statement of the substantive law. The primary function of jury instructions is to inform the jury of the law and its application to the facts as the jury finds them. Each case should be viewed on its own facts and each set of jury instructions must be viewed in its entirety. In this case, the jury instructions as given were fair and adequate.
Stones v. State, 1996 WL 145775, at *3 (Del.).
Guy v. State, 913 A.2d 558, 563 (Del. 2006).
Garden v. State, 815 A.2d 327, 341 (Del. 2003) (superseded by statute on other grounds).
17. Defendant contends that the jury should have been instructed that they were not to consider the child-victim's testimony at trial which was elicited to determine her competency to testify. Defendant is wrong in this regard. Such a jury instruction would have been improper, since the jury was, in fact, permitted to consider the child-vicitm's testimony in assessing her credibility. On direct appeal, the Delaware Supreme Court already held that the Superior Court did not err by questioning the child-victim in front of the jury in order to determine her competency to testify. The Delaware Supreme Court already noted that 10 Del. C. § 4302 provides that a child's age and degree of understanding of the obligation of an oath may be considered by the trier of fact in judging the child's credibility.
Black v. State, 2009 WL 804631, at *1-2 (Del.).
Id.
18. To the extent that Defendant is contending that the jury improperly heard evidence regarding the child-victim's competency, this claim is procedurally barred by Rule 61(i)(4) since this issue was already previously adjudicated by the Delaware Supreme Court on Defendant's direct appeal. The Delaware Supreme Court already held that the competency examination of the child-victim was permissibly conducted in the jury's presence. This issue was already addressed by the Delaware Supreme Court in Defendant's direct appeal and will not be re-examined simply because the claim is now refined or restated or relabeled as an ineffective assistance of counsel contention.
Super.Ct.Crim.R. 61(i)(4); Johnson v. State, 1992 WL 183069 at *1 (Del.).
19. Defendant appears to misunderstand that the testimony taken at the competency hearing is to be considered by the jury in their deliberations, not on the legal issue which the judge had decided, but on the factual issues which the jury is being asked to decide. Defendant appears to misunderstand that the trier of fact (the jury) is permitted to consider the testimony taken at the competency hearing when assessing the child's credibility.
Id.
20. The jury instructions given in this case were fair and accurate and properly instructed the jury as to the nature of the proceedings and the significance of any legal rulings made in the case. The jury instructions provided that the jury was not to be concerned about any legal ruling made by the court and that they were to act as the sole judges of the facts. The trial court made it clear to the jury that their role was as the trier of fact and that their role was to determine the credibility of the witnesses and determine the factual issues. The jury instructions need not have been challenged by Defendant's trial counsel. The conduct of the defense counsel does not appear to be deficient in this regard.
April 2, 2004 Trial Transcript, at pgs. 154-74.
21. Defendant's second challenge to the jury instructions is his allegation that the jury instruction regarding expert testimony was improper. Defendant contends that the court failed to instruct the jury concerning the significance of the expert witness testimony. Defendant is incorrect in this regard. The court properly instructed the jury on the significance of the expert witness testimony.
April 2, 2004 Trial Transcript, at pgs. 168-169.
22. More importantly and dispositive of this issue, is the fact that only one expert witness, Dr. Allen DeJong, testified at trial. Dr. DeJong's expert testimony was on the issue as to whether there were acts of penetration of the victim. The jury acquitted Defendant of the only charge, rape first degree, that involved acts of penetration. Consequently, Defendant cannot establish that he was prejudiced by the testimony of the expert witness or the jury charges related thereto. The jury was instructed that it could accept or reject the expert testimony and they apparently rejected it. The jury gave the expert testimony the weight that felt it deserved. Defendant cannot satisfy either prong of the Strickland standard. His claim of ineffective assistance of counsel is without merit.
2) FAILURE TO CHALLENGE THE MEDICAL REPORT
23. Defendant's second claim is that his counsel was ineffective for failing to challenge the medical report or call Dr. Kathy Palmer as a witness. To add some insight into this claim, it was Dr. Kathy Palmer that performed the physical examination of the child-victim on October 14, 2003. She concluded in her report that there were no signs of physical injury at the time of the examination. At trial, the State called Dr. Allen DeJong, the supervisor of Dr. Palmer as well as the Director of the Children at Risk Evaluation Program at the A.I. DuPont Hospital for Children, rather than Dr. Palmer, herself. Dr. DeJong was offered as an expert witness on the issue of whether there were any acts of penetration. Dr. DeJong testified that he was not the examining physician but that the examining physician found no signs of physical injury. He then opined that there could still be acts of penetration even though there was no signs of physical injury.
April 1, 2004 Trial Transcript, at pgs. 114-136.
24. The jury must have concluded that there was no acts of penetration in this case because they acquitted Defendant on the only charge which involved acts of penetration. The jury therefore must have disregarded Dr. DeJong's testimony and felt that it was outweighed by other evidence.
25. Defendant contends that his counsel should have sought to have Dr. DeJong removed from jury consideration. Defendant also contends that Dr. Palmer should have been subpoenaed so that he could challenge her medical findings and evaluation face-to-face. Defense counsel, in his Affidavit, represented that Defendant never requested that Dr. Palmer be subpoenaed, that defense counsel did not want to challenge the medical report of the examination performed by Dr. Palmer or the expert testimony of Dr. DeJong because the medical report was favorable to Defendant. Indeed, the results of the physical examination was that there were no signs of physical injury. The testimony of Dr. DeJong, as supported by the medical records were exculpatory to Defendant, resulting in his acquittal on the charge of rape first degree. There is a strong presumption that defense counsel's conduct in the handling of the expert testimony and the medical report constituted sound trial strategy. Defendant has not overcome this presumption.
Affidavit of Defendant's Trial Counsel, at ¶ 8.
26. Yet, even if defense counsel was somehow ineffective, Defendant can not meet the second prong of the Strickland standard and establish prejudice. Defendant, having been acquitted of rape first degree, the only charge involving acts of penetration cannot establish that the outcome of that charge would have been different had Dr. DeJong not been permitted to testify, or had Dr. Palmer testified instead or in addition to Dr. DeJong. Defendant has failed to make concrete allegations of actual prejudice and substantiate them.
3) FAILURE TO OBTAIN EXCULPATORY EVIDENCE
27. Defendant also claims that his counsel was ineffective for failing to obtain the medical report of Dr. Palmer prior to trial. Defendant contends that the medical report, containing exculpatory evidence, was withheld by the State. Defense counsel, in his Affidavit, indicates that the medical report was obtained by defense counsel pre-trial and discussed with Defendant at that time. Defense counsel was therefore not ineffective for failing to obtain the medical report. Moreover, there is no question that defense counsel had Dr. Palmer's report at trial and that he used it to Defendant's benefit. Here again, even if defense counsel was somehow deficient, Defendant cannot establish prejudice resulting from any such deficiency because he was acquitted of the only charge for which the medical report was utilized.
Affidavit of Defendant's Trial Counsel, at ¶ 8.
4) FAILURE TO CHALLENGE HABITUAL OFFENDER STATUS
28. Defendant next contends that his attorney was ineffective for failing to contest his habitual offender status. Defendant appears to contend that his counsel did not appear at his sentencing. This is simply incorrect. Defense counsel was present at Defendant's sentencing.
See, Sentencing Transcript of July 9, 2004.
29. Defendant also contends that his counsel was ineffective for failing to challenge his habitual offender status. This claim is barred pursuant to Rule 61(i)(4) because it has already been previously adjudicated. The Delaware Supreme Court already held that there was no error in the Superior Court's sentencing of Defendant as a habitual offender. Since this issue has already received "substantive resolution" and was already addressed by the Delaware Supreme Court in Defendant's direct appeal it should not be re-examined simply because the claim is now refined or restated or relabeled as an ineffective assistance of counsel contention.
Black v. State, 2009 WL 804631, *2 (Del.)
Super.Ct.Crim.R. 61(i)(4); Johnson v. State, 1992 WL 183069 at *1 (Del.).
30. In addition to being procedurally barred, this claim is also legally and factually unsubstantiated. Notably absent from Defendant's motion is any concrete allegations as to what grounds existed to warrant a good faith opposition to the habitual offender status motion. Conclusory, unsupported and unsubstantiated allegations are insufficient to establish a claim under Rule 61.
State v. Mobley, 2007 WL 3287999, at *3 (Del.Super. 2007); State v. Chambers, 2008 WL 4137988, at *1 (Del.Super.).
31. Indeed, Defendant was convicted of three underlying offenses that rendered him eligible for habitual offender status under 11 Del. C. § 4214(a). Defendant was convicted of robbery first degree in 1981, unlawful sexual contact second degree in January 1997, and unlawful sexual contact second degree in December 1997.
32. Defense counsel placed on the record at sentencing and he reiterated in his Affidavit in response to Defendant's Rule 61 motion, that he personally confirmed that the motion was properly presented and that he did not contest the motion because he did not have any meritorious basis to do so. At sentencing, defense counsel stated on the record that he had received a copy of the motion to declare Defendant a habitual offender. He looked at it closely, made sure that each predicate offense was, in fact, a felony, made sure that Defendant was represented by counsel and that all of the convictions were properly obtained.
Sentencing Transcript of July 9, 2004, at pgs. 3-4.
33. Likewise, Defense counsel, in his Affidavit represented that he thoroughly reviewed the habitual offender motion which contained certified copies of Defendant's prior convictions and consulted with his client regarding the motion before sentencing. Since the motion was correct and outlined the Defendant's prior convictions, the Defendant was thus eligible for such sentencing status. Consequently, no opposition to the motion was appropriate and no response was filed. The motion was accurate, filed in a timely manner, and there was no valid objection. This claim is procedurally barred and without merit. There is no factual or legal support for this claim.
Defense Counsel's Affidavit in Response to Rule 61 Motion, at ¶ 9.
Defense Counsel's Supplemental Affidavit in Response to Rule 61 Motion, at ¶¶ 13-14.
5) PROSECUTORIAL MISCONDUCT
34. Defendant's final claim is that his counsel was ineffective for failing to object to statements made by the prosecutor. Defendant couches this claim as an ineffective assistance of counsel claim rather than a claim of prosecutorial misconduct. If couched as a claim for prosecutorial misconduct it would have been procedurally barred by Rule 61(i)(2) and Rule 61(i)(3), since this issue was not raised previously either on direct appeal or in any other postconviction proceeding.
35. On the other hand, an ineffective assistance of counsel claim is not procedurally barred because a Rule 61 motion is the appropriate vehicle for such a claim, even when it has not been previously raised. Perhaps in order to overcome this procedural hurdle, Defendant instead couched his claim as ineffective assistance of counsel for not objecting to the prosecutorial misconduct rather than a claim for prosecutorial misconduct itself.
Malin v. State, 2009 WL 537060, at *5 (Del.Super. 2009); Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
36. In the subject motion, Defendant claims that defense counsel was ineffective at trial for failing to object to improper statements made by the prosecutor in her opening and closing arguments, and in her rebuttal summations. Defendant identifies eight instances of improper comments by the prosecutor during trial. He argues that the State misrepresented evidence, misled the jury regarding the burden of proof, and improperly vouched for the State's case and State's witnesses.
37. Defendant claims that the prosecutor misrepresented evidence on two matters and that his trial counsel was ineffective for failing to object. The first alleged misrepresentation of evidence purportedly occurred during the State's opening statement, when the prosecutor stated that the evidence would show that Defendant "put his kitty in her kitty." Defendant contends that the State produced no evidence to support this statement. Defendant is simply incorrect in this regard. In the child victim's out-of court statement, which was obtained at the Child Advocacy Center and was properly admitted at trial, the victim testified that Defendant put his kitty in her kitty. This testimony is direct evidence, and thus, the prosecutor's opening statement was consistent with the evidence presented at trial. Consequently, this statement was not improper, and defense counsel had no grounds to object to such a statement and Defendant's argument is without merit.
April 1, 2004 Trial Transcript, pg. 31.
See, Black v. State, 2009 WL 804631, at *2 (Del.) (the Delaware Supreme Court on Defendant's direct appeal held that the victim's out-of-court statement was properly admitted).
38. The second contention of misrepresentation of evidence allegedly took place in the prosecutor's closing argument. Defendant claims that in the State's closing argument, the prosecutor said that the victim told her mother what the defendant did to her when the evidence shows that the victim's mother testified that the victim did not talk to her directly about what happened. First, it did not appear that the prosecutor said in her closing that the victim told her mother what the defendant did to her. The prosecutor said that the victim made a statement in court to the jury, to the interviewer, her grandmother, and her mother.
Defendant's Memorandum of Law at pg. 18.
April 2, 2004 Trial Transcript, pg. 133.
Id.
39. There was, in fact, evidence consistent with this assertion by the prosecutor. Actually, the victim testified at trial that she told her mother what had occurred. Thus, even if the prosecutor had said that the victim told her mother directly what had happened, there was evidence in the record to support that statement. Specifically, the child victim testified at trial that she told her mother about the bad things that Johnny did. The victim testified that she told the hospital, her grandmother, and her mother about everything that had happened. Consequently, this statement was not improper and defense counsel had no grounds to object.
April 1, 2004 Trial Transcript, pg. 72-75.
Id.
40. Second, the statement raised by Defendant appears to be taken out of context. In the statement at issue, the prosecutor merely states that the child victim made statements at trial, to the interviewer, to her grandmother and to her mother. This statement is consistent with the evidence. The child victim did make statements at trial, to the interviewer, to her grandmother and to her mother. The prosecutor does not elaborate at that moment on the specific statements that were made to each. At that point, the prosecutor only states that statements were made.
April 2, 2004 Trial Transcript, pg. 133.
41. In addition to the testimony of the child victim that she told her mother what happened, the mother testified that her daughter told her directly that the Defendant was bad. That is a direct statement made by the child victim to her mother. The mother also testified that she was present when her daughter told the social worker at the hospital when had happened, on the same day that they called the police and the child victim was taken to the hospital for a physical examination.
April 2, 2004 Trial Transcript, pgs. 11, 45.
April 2, 2004 Trial Transcript, pgs. 11-12, 38-41.
42. From other comments made by the prosecutor in her closing, the prosecutor elaborates on what was said by the child victim and to whom they were said. As to the mother, the prosecutor elaborates that her mother learned what happened from what she heard from the DFS worker. That is consistent with the mother's testimony that she heard what happened from the social worker. There does not appear to be any prosecutorial misconduct in this regard.
April 2, 2004 Trial Transcript, pgs. 134 (Is the victim consistent with what she tells her grandmother and with what her mother hears from the DFS worker . . .)
Id.
April 2, 2004 Trial Transcript, pgs. 11-12, 38-41.
43. Even if there was a misstatement, not every improper remark arises to prosecutorial misconduct requiring reversal. Only comments that prejudicially affect the substantial rights of the accused compromise the integrity of the verdict and the fairness of the trial. As previously discussed, there was evidence in the record to support this statement. To the extent there was a misstatement, it was slight and did not go to any material element of any offense. Defendant has not established that defense counsel's conduct was deficient in failing to object to this statement nor has he established that he suffered any prejudice as a result thereof.
Dailey v. State, 956 A.2d 1191, 1195 (Del. 2008).
44. Next, Defendant claims that the prosecutor misrepresented the burden of proof in two instances in her closing argument. He contends that the first improper statement was the prosecutor's assertion that if the jury believed the victim's testimony, this testimony was evidence. This statement was accurate. There was nothing improper about this statement. Second, this statement has no bearing on the burden of proof. Consequently, this statement could not give grounds to an assertion that the prosecutor misrepresented the burden of proof. Defense counsel's conduct in not objecting to this statement is not deficient in any regard.
45. Defendant contends that the prosecutor also misrepresented the burden of proof in her closing argument when she indicated that the jury could have doubts and still convict the defendant. In classifying this statement as improper, it appears that Defendant is mistaken about the burden of proof required to convict in a criminal proceeding. The burden of proof in a criminal proceeding requires the prosecution to prove each element of the offense beyond a reasonable doubt. This standard does not require exact certainty as Defendant seems to assert. The prosecutor's statement was not improper and defense counsel was not deficient for not objecting.
Specifically, the prosecutor's comments in this regard were:
The State is in the position that, yeah, the evidence we have is the word of a little girl. And that evidence has to be convincing to you beyond a reasonable doubt. And you can have doubts and convict the defendant. Because you can have doubts that don't take away from you or your firm convincing belief of the defendant's guilt. You can have doubts which don't cloud the entire harmonious picture of it all. You can have doubts that pop up that you say those aren't reasonable because I don't believe them.
As the law anticipates the fact that proof to a certainty is not required, it says that there are very few things in this life that anyone knows to an absolute certainty. So what you have to do is ask yourself does this evidence fit the human common practical standard of beyond a reasonable doubt? . . .
April 2, 2004 Trial Transcript, pg. 140.
46. The prosecutor has not misrepresented the burden of proof and defense counsel was not deficient for not objecting. Moreover, the court in its jury instructions addressed the burden of proof. The court fully and accurately instructed the jury as to the reasonable proof standard.
April 2, 2004 Trial Transcript, pg. 171-72.
47. Defendant alleges that four statements made by the prosecution were improper because the prosecutor was impermissibly vouching for the State's case. Prosecutors are prohibited from vouching for the credibility of a witness by stating or implying personal knowledge of the truth of the testimony, beyond that which can be logically deduced from the witness' trial testimony. Improper vouching occurs when the prosecutor implies some personal knowledge that the witness has testified truthfully.
Torres v. State, 979 A.2d 1087, 1096 (Del. 2009).
Id.
48. The first statement alleged to be improper as vouching is the statement in which the prosecutor suggested that the victim's statements about the sexual contact was consistent. This argument, as made by the prosecutor, is not impermissible as it can be logically deduced from testimony by witnesses at trial. In no way did the prosecutor imply that she possessed knowledge outside the evidence presented at trial. The prosecutor did not suggest that she had any additional personal knowledge that the victim was telling the truth. The prosecutor does not imply any personal knowledge about the truth of the victim's testimony, but instead addresses the evidence presented at trial and logical deductions resulting therefrom. This statement was not improper and defense counsel was not ineffective for failing to object thereto.
49. The second and third statements that Defendant argues are improper occurred in the State's closing argument. In these statements, the prosecutor suggested that the evidence supports the charges and that the victim likely testified that the events happened because they did happen. Defendant argues that these statements were impermissible as they vouched for the State's case. In closing summation, a prosecutor is permitted to argue any inferences which could be made from the evidence presented at trial. The first of the statements made by the prosecution in closing simply advocates the State's position, as the prosecutor is permitted to do.
Dailey v. State, 956 A.2d 1191, 1195 (Del. 2008).
50. The second statement also advocates a logical inference that can be drawn from the evidence. The prosecutor did not suggest that she held any additional personal knowledge that the victim was telling the truth nor imply any personal knowledge about the truth of the victim's testimony. A logical inference that can be drawn from the evidence is that the victim testified to the events because the events occurred. These statements were not improper and need not have been challenged by defense counsel.
See, Dailey v. State, 956 A.2d 1191, 1195 (Del. 2008).
51. In the fourth and final statement alleged by Defendant to be improper, occurring in the prosecutor's rebuttal summation, the prosecutor asked the jury "how [the victim] could [point to the anatomical pictures] if [the offense] didn't happen to her?
Specifically, the prosecutor stated:
Back when she originally said these things, there were no promises, there was no Burger King, there was nothing to prompt her to motivate her to talk about it. Even the questioning at the CAC, the purpose of it is to be non-leading-what happened? How did he touch you? Where were you? It's not did he lay on top of you? Is this how they did it? Or did they do it like this (indicating)? You touch the pictures, [T.B.], and you do it. And she did. And how could she do that if it didn't happen to her?
Is this just a young girl's fantasy? Maybe it's just the fact that it happened. As Mr. Pankowski said, maybe it happened and she's just pointing the finger at Johnny. Well, you've heard the evidence, there was no argument between the families. You've even watched [T.B.] in the courtroom have no problem identifying him, saying she played with him. Perhaps waving to him when we weren't paying attention. What she has a problem with is talking about the bad things he did. And it wasn't her daddy that she said did it, and it wasn't her uncle, and it wasn't her mom's boyfriend, the person she pointed at was him. And if it was him she pointed at, and if it was him that you believe did the things that she said, then he's the one who's guilty, and we ask you to find him guilty.
April 2, 2004 Trial Transcript. pg. 153-154.
52. The prosecutor is not testifying as to her own opinion. The credibility of the child victim is at issue in the case and the prosecutor is arguing why the child should be believed. The prosecutor is not improperly vouching for the witness. Moreover, in phrasing this argument as a question the State did not make an affirmative statement that the crime occurred because the victim pointed to the pictures. The prosecutor is asking the jury to draw a logical inference. This statement was not improper and defense counsel was not ineffective in failing to object. Counsel's argument was acceptable comment. As there was no error made, and the statements alleged to be improper were not so, Defendant has not demonstrated prosecutorial misconduct.
53. Yet, even if something was amiss, not every improper remark requires reversal. Only comments that prejudicially affect the substantial rights of the accused compromise the integrity of the verdict and the fairness of the trial would require reversal. None of the contentions raised herein rise to that level. Defendant has not established that defense counsel's conduct in failing to object to any of the contentions raised herein were deficient. Moreover, Defendant has not established that he suffered any prejudice as a result of defense counsel's alleged deficient conduct.
Dailey v. State, 956 A.2d 1191, 1195 (Del. 2008).
54. In this case, Defendant has failed to overcome any of the procedural bars by showing a "colorable claim that there was a miscarriage of justice" or that "reconsideration of the claim is warranted in the interest of justice." The "miscarriage of justice" exception is a "narrow one and has been applied only in limited circumstances. The defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." The Defendant has failed to provide any basis, and the record is devoid of, any evidence of manifest injustice. The Court does not find that the "interests of justice" require it to consider the otherwise procedurally barred claims for relief.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
Id.
55. Defendant's motion for an evidentiary hearing is hereby denied. Having carefully considered the parties' submissions and the evidentiary record, Defendant's allegations were, in fact, either reasonably discounted as not supported by the record, persuasively rebutted by counsel's affidavit, or not material to a determination of Defendant's claims.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief and motion for an evidentiary hearing should be denied.