Opinion
ID# 9609013997.
Submitted: May 31, 2000.
Decided: August 22, 2000.
On Defendant's Pro Se Motion for Postconviction Relief. DENIED.
ORDER
This 22nd day of August, 2000, upon consideration of Defendant's Pro Se Motion for Postconviction Relief, it appears to this Court that:
1. Kevin D. Floray (Defendant) has filed this Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. For the reasons stated below, Defendant's motion for postconviction relief is DENIED.
2. Following a trial by jury, Defendant was convicted of three counts of Unlawful Sexual Intercourse First Degree in violation of 11 Del. C. § 775, two counts of Continuous Sexual Abuse of a Child in violation of 11 Del. C. § 778, and Attempted Unlawful Sexual Intercourse First Degree in violation of 11 Del. C. § 531 for sexually molesting his daughter, age seven, and her friend, age ten. Defendant was convicted of all charges and was sentenced to 64 years of Level 5 imprisonment.
Defendant took a direct appeal to the Supreme Court alleging that (1) the Superior Court improperly excluded expert testimony with respect to the propensity of children, who are the subject of parental custody and visitation conflicts, to falsify allegations of abuse; (2) that the Superior Court erred by admitting the expert testimony of the examining physician that his physical findings were "consistent with child abuse" when the physical findings were equally consistent with no abuse; and (3) that the Court erred in instructing the jury that the testimony of the alleged victims alone was sufficient to support a conviction. The Supreme Court affirmed the decision below and stated that the
Superior Court correctly excluded the expert testimony regarding the credibility of the complaining child victims. We find that the expert testimony of the examining physician was relevant and although some questions posed to him were properly phrased, the errors were harmless. We also find that part of one jury instruction was appropriate, but any error was harmless. We therefore affirm.
Floray v. State, Del. Supr., No. 444, 1997, Hartnett, J. (Dec. 2, 1998) (Mem. Op.) at 2-3.
On December 9, 1999, Defendant filed this Motion For Postconviction Relief
3. In his motion and supplemental memorandum of law in support of the motion, Defendant alleges three grounds of ineffective assistance of counsel. Specifically, Defendant alleges in Ground One that this Court "repeatedly inquired as to whether [trial counsel] wanted a DRE 404(b) instruction and [trial counsel] declined without specifying the basis;" Ground Two states that a "[d]iscovery violation on the part of the State was identified by the Court and [trial counsel] failed to request any ruling or action" by this Court; and Ground Three alleges that "[trial counsel] made a Motion for Judgment of Acquittal and failed to argue it."
Defendant's Motion For Postconviction Relief at 3.
Id.
Id.
4. To succeed on a claim of ineffective assistance of counsel, Defendant must show both (a) that "counsel's representation fell below an objective standard of reasonableness" and (b) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would be different." Since Defendant must prove both prongs in order to succeed on an ineffective assistance of counsel claim, failure to prove either prong will render the claim unsuccessful. In addition, the Delaware Supreme Court has consistently held that when setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal.
See n. 19, supra.
See n. 20, supra.
5. With respect to the 404(b) instruction issue, Defendant has failed to meet the first prong of Strickland and to show how trial counsel's strategic decision to decline the instruction related to the 404(b) evidence fell below an objective standard of reasonableness. Furthermore, Defendant has failed to meet the second prong of Strickland and show that but for counsel's unprofessional errors, there was a reasonable probability that the result of the proceeding would have been different. Defendant has failed to substantiate this claim with any concrete allegations of actual prejudice. Ground One of Defendant's motion is denied.
See Affidavit of Michael E. Marr, Esquire at ¶ 5 (A).
6. Ground Two of Defendant's motion alleging a discovery violation also fails to meet the standard espoused in Strickland. Although there appears to be a technical discovery violation, it appears to this Court that the evidence in question was provided to the Defendant by the State and it was used in trial. Considering Defendant's knowledge and use of this evidence, defense counsel's choice to not ask the court for a sanction does not show that defense counsel's representation fell below and objective standard of reasonableness. Defendant is unable to satisfy either the performance or prejudice prong of Strickland and Ground Two of Defendant's motion is denied.
7. Ground Three of Defendant's Motion with respect to the failure of trial counsel to argue for Judgment of Acquittal also fails the Strickland test. Trial counsel states in his affidavit that he "purposefully did not argue for a judgment of acquittal . . . because of a concern that the prosecution would pick up on deficiencies that were pointed out and correct them either in rebuttal or by reopening their case. . . ." Considering the amount of overwhelming evidence presented by the State against the Defendant, this Court finds that trial counsel's choice to not argue for a judgement of acquittal did not fall below the objective standard of reasonableness required by Strickland. Furthermore, Defendant has failed to show how the outcome would have been different if trial counsel had argued for acquittal. Moreover, Defendant has failed to substantiate this allegation with actual prejudice. Ground Three of Defendant's motion is denied.
Id at ¶ 5(C).
8. For the reasons stated above, Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.