Opinion
C. A. NO. S97-11-0516; Unlawful Sexual Intercourse 1st S97-11-0517; Unlawful Sexual Intercourse 1st S97-11-0518; Continuous Sexual Abuse S97-11-0518.
Decided: October 10, 2000.
On this 10th day of October, 2000, upon consideration of the defendant's Motion for Postconviction Relief, the Commissioner's Proposed Findings of Fact and Recommendations, defendant's appeal therefrom and the record in this case, it appears that:
1) 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. Defendant was indicted on these charges on December 15, 1997. The jury, after deliberation, found defendant guilty as charged on all counts. Subsequent thereto, defendant renewed a motion for a mistrial due to the playing of an unredacted portion of a tape and he 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. On appeal to Delaware's Supreme Court, trial counsel asserted that 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 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.
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.
2) On April 18, 2000, defendant filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") . The Court referred the motion to Superior Court Commissioner Alicia B. Howard pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law. On June 6, 2000, the Commissioner filed Proposed Findings of Fact and Recommendations recommending that the Court not appoint counsel to represent defendant in the presentation of the Rule 61 motion, not conduct a hearing in the matter and deny defendant's Rule 61 motion.
3) Defendant filed an appeal from the Proposed Findings of Fact and Recommendations. Therein, he takes exceptions to the Commissioner's Proposed Findings of Fact and Recommendations. He also reargues his positions previously presented. Finally, he advances a few new arguments, which the Court ignores since they were not presented initially. The Court also takes this opportunity to correct a misrepresentation defendant made. He states at page 7 of his June 16, 2000 memorandum:
The Commissioner also states: "... and an investigation of the alleged crime scene would have enabled defense counsel to present a defense and properly discredit the victim, who lied. ... How can this conviction stand?
The Commissioner's full sentence, located at page 24 of her Proposed Findings of Fact and Recommendations, states:
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.
The Commissioner was merely setting forth defendant's argument, not making a finding of fact as defendant so misrepresents.
NOW, THEREFORE, after careful and de novo review of the record in this action, the appeal therefrom, and for the reasons stated in the Commissioner's Proposed Findings of Fact and Recommendations dated June 6, 2000,
IT IS ORDERED that:
(1) The well-reasoned Commissioner's Proposed Findings of Fact. and Recommendations are adopted by the Court;
(2) Defendant's Motion for Postconviction Relief is DENIED.