IN THE SUPREl\/]E COURT OF THE STATE C)F DELAWARE

ROBERT I-lEARNE, §
§ No. 148, 2017
Defendant BeloW, §
Appellant, § Court BeloW-Superior Court of the
§ State of Delaware
V. §
§ Cr. ID No. 1605006649 (N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: Septernber l9, 2017
Decided: December ll, 2017

Before STRINE, Chief Justice; SEITZ and TRAYN()R, Justices.
0 R D E R

This l lth day of December 2017, upon consideration of the no-merit brief under
Supreme Court Rule 26(c), appellate counsel’s motion to Withdraw, and the State’s
response, it appears to the Court that:

(l) In 2016, the Delaware Division of Family Services reported a possible
case of child sexual abuse to the NeW Castle County Police Department. Detective
Charles Levy conducted an interview of the child involved. The child, Theresa, told

Detective Levy that she had been sexually abused by her father over an eight-year

period.l Detective Levy conducted an investigation that led to the indictment of the
appellant, Robert Hearne, on more than twenty sexual offenses.

(2) Hearne went to trial before a Superior Court jury in New Castle County
and was convicted of seven counts of Rape First Degree and other offenses, including
two counts of Continuous Sexual Abuse of a Child. On March 31, 2017, Hearne was
sentenced to seven life terms_one for each rape conviction_and an additional ninety-
f1ve years at Level V followed by decreasing levels of supervision. The Superior Court
merged the two convictions of Continuous Sexual Abuse of a Child and sentenced
Hearne to thirty-five years at Level V.2 This is Hearne’s direct appeal.

(3) Gn appeal, Hearne’S appellate counsel has filed a no-merit brief under
Rule 26(0) and a corresponding motion to withdraw. Hearne has submitted written
points for the Court’s consideration The State has responded to the position taken by
Hearne’s appellate counsel and the points raised by Hearne and has moved to affirm
the Superior Court’s judgment

(4) When considering a Rule 26(0) brief and an accompanying motion to

withdraw, our standard and scope of review is twofold. First, the Court must be

 

l Because of the sensitive nature of this case, the Court has used a pseudonym to refer to the
complaining witness Del. Supr. Ct. R. 7(d).
2 See Sentencing Tr. at 15 (Mar. 31, 2017) (“As to IN17010371 [Continuous Sexual Abuse of a Child],
you’re placed in the custody of the Department of Correction for a period of 35 years to be served at
Level V; that charge merges With IN170103 72 [Continuous Sexual Abuse of a Child] for sentencing
purposes.”).

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satisfied that the appellant’s counsel has made a conscientious examination of the
record and the law for claims that could arguably support the appeal.3 Second, the
Court must conduct its own review of the record to determine whether the appeal is so
totally devoid of at least arguably appealable issues that it can be decided without an
adversary presentation4

(5) The State’s witnesses included Hearne’s former girlfriend, Stephanie
Digrerio, and brother, Thearon “Bud” Hearne. Stephanie and Bud testified about the
contents of a video they watched in 2007. Stephanie testified that she watched the
video after finding it in Hearne’s car. On the video, she saw Theresa, at age seven or
eight, wearing nothing but “a black thong” and heard a Voice, which she recognized as
Hearne’s, telling the child to “turn around.”5 Stephanie testified that, after watching a
few seconds of the video, she turned it off and took it to Bud’s wife. Stephanie testified
that she confronted Hearne a few days later about the video, and that Hearne expressed
remorse about making the video and assured her it would never happen again.

(6) Bud also testified that he watched “just moments”6 of a Video that showed
a naked young girl standing near a bathroom shower with a towel draped on her

shoulders, and the same girl posing on a bed, wearing “an adult thong that clearly didn’t

 

3 Penson v. th'o, 488 U.S. 75, 83 (1988); McCoy v. Court oprpeals of Wisconsin, 486 U.S. 429,
442 (1988); Ana'ers v. California, 386 U.S. 73 8, 744 (1967).

4 Penson v. Ohio, 488 U.S. at 82.

5 Trial Tr. at 34~35 (Jan. 19, 2017).

61d. at117.

fit.”7 Bud testified that he recognized the rooms in the video as the master bathroom
and master bedroom in his mother’s house. Bud testified that the video did not show
the girl’s face, and it did not have sound, but he assumed that the girl was his niece,
Theresa, and that Hearne had recorded the video. Bud testified that, after consulting
with a deacon from a local church, he decided to burn the video because he “didn’t see
any touching on the tape,” and he “didn’t think bringing [the] tape to somebody’s
attention would have a beneficial value.”8 Bud testified that he confronted Hearne
about the video, and that Hearne acknowledged making the video and assured him it
was a “one-tirne thing.”9

(7) Theresa was sixteen years old at Heame’s trial in 2017. She testified that
Hearne began sexually abusing her when she was three or four years old and continued
abusing her until she was twelve. Theresa testified that the sexual contact, which
started as touching and escalated over time to oral sex and digital penetration, occurred
more than one hundred times. Theresa described the abuse as occurring at various
locations in Wilmington, including the basement of her parents’ house, her paternal
grandmother’s house, in Hearne’s car, and in a motel, where Hearne made her wear
lace underwear that was too big for her. Theresa testified that she could not recall

Hearne taking photos or videos of her, but she did recall him connecting a camera to a

 

71a ar 120.
81¢1. ar122.
914 at123.

television in her grandmother’s house and seeing naked photos of herself on the
television screen.

(8) Hearne’s defense at trial was a complete denial of the charges against him.
He testified that he did not touch Theresa in an inappropriate manner or engage in oral
sex With her. Hearne admitted that he videotaped Theresa coming out of a shower with
a towel wrapped around her and acknowledged that Stephanie and Bud confronted him
about the video. But Hearne denied that he intended to videotape Theresa in a sexual
act or that the video depicted anything sexual.

(9) The jury found Hearne guilty of seven counts of Rape First Degree, four
counts of Unlawful Sexual Contact Second Degree, two counts of Continuous Sexual
Abuse of a Child, two counts of Dangerous Crime against a Child, one count of Sexual
Abuse of a Child by a Person in a Position of Trust, Authority or Supervision First
Degree, and one count of Unlawful Sexual Contact First Degree. The jury acquitted
Hearne of one count of Rape First Degree, two counts of` Unlawful Sexual Contact
Second Degree, and a single count of Sexual Exploitation of a Child.

(10) Hearne has submitted four points on appeal. He contends that “the process
[was] tainted” because Theresa’s mother, his ex-wife, works for the Superior Court
Prothonotary in New Castle County. He claims that he is innocent of the charges
against him and that Theresa’s trial testimony was untruthful and was coached by

Detective Levy and the trial prosecutor. He questions whether the elements of the

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charges were “fully explained” to the jury, and he complains that the first degree rape
charges in the indictment described “the exact same offense.”

(l l) Hearne’s first point on appeal was raised during his jury selection when
his lawyer informed the judge_who did not preside over Heame’s trial-that
Theresa’s mother, Hearne’s eX-wife, was employed by the Superior Court Prothonotary
in New Castle County. Counsel suggested that the circumstances warranted
reassignment of the case to a judge in one of the other two counties in Delaware to
avoid the appearance of impropriety. The judge did not know Theresa’s mother and
proceeded with jury selection as scheduled, but left empaneling the jury and further
consideration of Hearne’s request to the trial judge.

(12) Before starting trial the following day, Hearne’s trial judge informed the
parties that, although she did not know Theresa’s mother and, to her knowledge, had
never interacted with her, she had considered whether her position as a judge in New
Castle County warranted her recusal in the case under the disqualification rule in the
Delaware Judges’ Code of Judicial Conduct.10

(13) When faced with a claim of personal bias or prejudice concerning a party,
a judge is required to engage in a two-part analysis to determine if recusal is

Warranted.ll First, the judge must be satisfied, as a matter of subjective belief, that she

 

10 See Del. Judges’ Code of Judicial Conduct R. 2.11 (governing Disqualification).
11LGS V. LOS, 595 A.Zd 381 (Del. 1991).

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can hear the matter free of bias or prejudice.12 Second, even if the judge believes she
is free of bias or prejudice, she must objectively consider whether the circumstances
require recusal because of an appearance of bias sufficient to cast doubt on the judge’s
impartiality.13 We review a judge’s subjective analysis for abuse of discretion and
consider the objective analysis de nova14

(14) Hearne’s trial judge determined that, as a matter of subjective belief, she
had no personal bias or prejudice whatsoever concerning the case and “specifically
concerning the fact that the mother of the alleged victim is an employee of the Court.”15
Second, the trial judge determined that, viewed objectively, the circumstances did not
create an appearance of impropriety requiring her recusal. On appeal, we find no basis
to question the trial judge’s subjective analysis and no error in her objective analysis
The trial judge did not know Theresa’s mother; neither party anticipated calling her as
a witness Under these circumstances, a reasonable person, fully informed of the facts
underlying the grounds on which recusal was sought, would not harbor significant
doubts about the trial judge’s impartiality in this case.16

(15) In his second point on appeal, Hearne claims that Theresa’s trial testimony

was untruthful and was coached by Detective Levy and the trial prosecutor. Hearne

 

1214 ar 384_85

13 Id. ar 385.

l41d

15 Trial Tr. ar 5 (Jan. 19, 2017).

16 Gams v. S¢aze, 955 A.2d 1276, 1285 (Del. 2008).

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provides no support for his claim and none is in the record. “It has long been our law
that the jury is the sole judge of the credibility of the witnesses and responsible for
resolving conflicts in the testimony.”17 lt was within the jury’s purview to credit
Theresa’s trial testimony.

(16) Hearne’s third point on appeal questions whether “all the elements [ofthe]
charges were fully explained to the jury,” but he does not explain his concern or identify
any specific deficiency in the jury instructions Nevertheless, we reviewed the jury
instructions for reversible error and found none. The jury instructions provided the
jury with a correct statement of the law and a full explanation of the elements of each
offense.

(17) In his fourth point on appeal, Hearne complains that the rape charges in
the indictment described “the exact same offense.” He is right that the charges were
worded identically. For each of the eight counts of first degree rape, the indictment
alleged that, between January l, 2008 and February 1, 2012, in New Castle County,
Hearne, who was over age eighteen, intentionally engaged in sexual intercourse with
Theresa, who had not yet reached her twelfth birthday.18 lt is not clear whether
Hearne’s point on appeal is that the charges were duplicative or that the charges lacked

specificity, but either way the claim is Without merit.

 

11 Tyre v. szaze, 412 A.2d 326, 330 (Del. 1980).
111 11 Del. C. § 773(3)(5) (supp. 2017).

(18) A person who is alleged to have committed multiple sexual assaults on the
same victim may be charged for each separate act.19 An indictment is sufficiently
specific if it contains a plain statement of the elements of the charges the person is
being called upon to defend and the essential facts of the alleged crimes20 Hearne does
not contend, and the record does not reflect, that the indictment gave him insufficient
notice of the rape charges

(19) Finally, we would be remiss not to address an apparent clerical error in
the Superior Court record. The error is in an automated sentence order docketed on
May 18, 2017.21 In addition to stating the thirty-five-year sentence that was imposed
for the Continuous Sexual Abuse of a Child convictions that were merged at
sentencing,22 the May 18 order includes an extraneous twenty-five-year sentence
purportedly imposed on the second of those two convictions.23 It is not clear why the
twenty-five year sentence was added to the sentence order docketed on May 18, 2017,
but we assume it is a clerical error. In any event, because it is clear from the record

that the twenty-five-year sentence was not imposed at Hearne’s sentencing, we will

 

19 Windsor v. State, 2014 WL 4264915 (Del. Aug. 28, 2014) (citing Feddz'man v. State, 558 A.2d 278,
288 (Del. 1989)).

211 Malloy v. smze, 462 A.2d 1083, 1092 (Del. 1983).

21 See Docket at 36, State v. Hearne, Del. Super., Cr. ID No. 1605006649.

22 Supra note 2.

22 Id. The twenty-five-year sentence does not appear in the court’s prior automated sentence orders
docketed on April 7, 2017 and May 4, 2017. See Docket at 30, 33, State v. Hearne, Del. Super., Cr.
ID No. 1605006649.

9

remand this matter to the Superior Court with instructions to issue a corrected sentence
order.24

(20) With the exception of the error in the sentence order, the Court concludes
that Hearne’s appeal is “wholly without merit.”25 We are satisfied that Hearne’s
appellate counsel made a conscientious effort to examine the record and the law and
properly determined that Hearne could not raise a meritorious claim on appeal.

NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is
GRANTED. The judgment of convictions is AFFIRl\/[ED. The motion to withdraw is
moot. This case is remanded to the Superior Court for corrective action consistent with
this Order. Jurisdiction is not retained.

BY THE COURT:

/s/ Garv F. T raynor
Justice

 

24 Del. Super. Ct. Crim. R. 36. Gibbs v. State, 229 A.2d 502, 504 (Del. 1967). See Smith v. State,
2008 WL 5008575 (Del. Nov. 26, 2008) (remanding for correction of error in written sentence order).
Accord Donovan v. Smte, 1997 WL 597125 (Del. Sept. 23, 1997).

25 Del. Supr. Ct. R. 26(0).

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