       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                            :    In and for Kent County
                                             :    ID No. 1406002733
                                             :
       v.                                    :   RK15-02-0044-01 Att Child Abuse (F)
                                             :   RK15-02-0049-01 Att Rape 2nd (F)
TODD GREEN,                                  :   RK15-06-0362-01 Unlaw Sex Con (F)
                                             :
              Defendant.                     :


                                          ORDER

                                 Submitted: October 25, 2019
                                 Decided: November 21, 2019

       On this 21st day of November, 2019, upon consideration of Defendant Todd
Green (“Mr. Green”)’s motion for postconviction relief, the State’s response, the
Commissioner’s Report and Recommendation, Mr. Green’s exceptions, and the record
in this case, it appears that:
       1. The State prosecuted Mr. Green for various sex offenses. The matter was
tried before a jury in June 2015.
       2. At the conclusion of the State’s case, trial defense counsel successfully
moved for a judgment of acquittal on several counts. Namely, the Court entered a
judgment of acquittal regarding the following charges: one count of Child Abuse; one
count of Rape in the First Degree; one count of Attempted Rape in the Second Degree;
one count of Attempted Rape in the Fourth Degree; and two counts of Attempted Child
Abuse. At the conclusion of the trial, the jury found Mr. Green guilty of one count of
Attempted Rape in the Second Degree, 11 Del. C. § 772; one count of Attempted Child
Abuse, 11 Del. C. § 778; and one count of Unlawful Sexual Contact in the Second
Degree, 11 Del. C. § 768. It found him not guilty of the following: two counts of Rape
in the First Degree; six counts of Child Abuse; three counts of Rape in the Second
Degree; one count of Continual Sexual Abuse of a Child; one count of Attempted Child
Abuse; one count of Attempted Rape in the Second Degree; and one count of Unlawful
Sexual Contact in the Second Degree.
       3. The Court then ordered a presentence investigation. On September 15, 2015,
the Court sentenced Mr. Green to sixty-eight years of incarceration suspended after
fifty years and nine months, for varying levels of probation. Fifty years of the
unsuspended sentence constituted a minimum mandatory sentence.
       4. Mr. Green then appealed the matter to the Delaware Supreme Court. He
contended that the cumulative effect of irrelevant and prejudicial testimony deprived
him of a fair trial. In its decision, the Supreme Court held that the challenged testimony
did not jeopardize Mr. Green’s right to a fair trial and did not change the outcome of
the trial. Accordingly, it affirmed his convictions and sentences.1 When doing so, the
Supreme Court addressed the cumulative effect of the evidence admitted without
defense objection.2 It found that the cumulative effect of the challenged testimony and
evidence did not jeopardize trial fairness.3
       5. Mr. Green next filed a pro se motion for postconviction relief and motion for
appointment of counsel. The Court appointed Rule 61 counsel on January 23, 2017.4
Mr. Green then filed an amended motion for post conviction relief. In it, he advances
an ineffective assistance of counsel claim. He alleges that trial counsel’s representation
was objectively unreasonable because of her failure to object in certain circumstances

1
   Green v. State, 147 A.3d 748 (Table), 2016 WL 4699156, at *1 (Del. 2016)..
2
  Id. at *2-3.
3
  Id.
4
   State v. Green, Del. Super., ID No. 1406002733, Clark, J. (Jan. 23, 2017) (ORDER).

                                              2
and to request a mistrial in others. He also alleges that the cumulative impact of these
failures caused him prejudice.
       6. After considering Mr. Green’s motion, the State’s response, and the record,
the Commissioner issued her Report and Recommendation. In it, she recommended
that the Court deny Mr. Green’s motion.
       7. Mr. Green then filed written exceptions to the Commissioner’s Report and
Recommendation. Primarily, he alleges that the Report and Recommendation conflate
the Supreme Court’s decision on direct appeal and the Strickland analysis required in
the present motion. The Court disagrees. First, trial counsel’s performance was
reasonable. In large part, his trial counsel’s strategy was successful. Second, Mr.
Green did not substantiate that, but for his trial counsel’s allegedly unprofessional
performance, the outcome of the proceedings would have been different.5 Although the
Supreme Court undertook a plain error analysis on direct appeal, its holding regarding
the same alleged cumulative errors controls this aspect of Mr. Green’s Rule 61 motion.
When deciding the direct appeal, the Supreme Court examined the trial record and
recognized the overwhelming evidence of Mr. Green’s guilt.6 That it did so under a
plain error review does not obviate the applicability of its finding. Namely, the State
recovered Mr. Green’s DNA from the thirteen year old victim. That, coupled with
eyewitness testimony and physical evidence of injury to the victim, provided
overwhelming evidence of guilt sufficient to make inapplicable the second prong of the
Strickland analysis. Namely, Mr. Green fails to demonstrate that but for his trial
counsel’s decisions, the outcome would have been different.
       NOW, THEREFORE, after a de novo review of the record, for the reasons
5
  See Strickland v. Washington, 466 U.S. 668, 687 (U.S. 1984) (discussing this second prong of the
test).
6
  Green, 2016 WL 4699156, at *3.

                                                3
discussed above, and for the reasons provided in the Commissioner’s Report and
Recommendation dated September 23, 2019;
      IT IS HEREBY ORDERED that the Commissioner’s Report and
Recommendation attached as Exhibit “A”, is adopted by the Court in its entirety. Mr.
Green’s motion for postconviction relief pursuant to Superior Court Criminal Rule 61
is therefore DENIED.


                                                   /s/Jeffrey J Clark
                                                           Judge




                                         4
Exhibit A




    5
       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                      ) In and for Kent County
                                       ) ID No. 1406002733
                                       )
      v.                               ) RK15-02-0044-01 Att Child Abuse (F)
                                       ) RK15-02-0049-01 Att Rape 2nd (F)
TODD GREEN,                            ) RK15-06-0362-01 Unlaw Sex Con (F)
                                       )
            Defendant.                 )




           COMMISSIONER'S REPORT AND RECOMMENDATION

               Upon Defendant's Motion for Postconviction Relief
                 Pursuant to Superior Court Criminal Rule 61




Kathleen A. Dickerson, Esq., Deputy Attorney General, Department of Justice, for the
State of Delaware.

Benjamin S. Gifford, IV, Esq., for Defendant.


FREUD, Commissioner
September 23, 2019

      The defendant, Todd Green (“Green”), was found guilty following a jury trial on
June 22, 2015 of one count of Attempted Rape in the Second Degree, 11 Del. C. § 772;
one count of Attempted Child Abuse, 11 Del. C. § 778; and one count of Unlawful
Sexual Contact in the Second Degree,11 Del. C. § 768. At the conclusion of the State’s

                                          6
case the defense moved for a Judgment of Acquittal as to several counts. The Court
granted the motion and a Judgment of Acquittal was entered as to the following charges:
one count of Child Abuse, one count of Rape in the First Degree, one count of
Attempted Rape in the Second Degree, one count of Attempted Rape in the Fourth
Degree and two counts of Attempted Child Abuse. Green was found not guilty on two
counts of Rape in the First Degree, six counts of Child Abuse, three counts of Rape in
the Second Degree, one count of Continual Sexual Abuse of a Child, one Count of
Attempted Child Abuse, and one Count of Attempted Rape in the Second Degree and
one Count of Unlawful Sexual Contact in the Second Degree. A presentence report was
ordered and on September 15, 2015 Green was sentenced to a total of sixty-eight years
incarceration suspended after serving fifty years and nine months incarceration for
varying levels of probation. The first fifty years were minimum mandatory.
      Green, through counsel, appealed his conviction to the Delaware Supreme Court.
Once the Notice of Appeal was filed in the Supreme Court by Appellate Counsel, Green,
pro se, requested that he be permitted to represent himself on appeal. The Supreme
Court remanded the matter back to this Court to determine if Green was capable of
representing himself. On remand this Court held an evidentiary hearing at which Green
initially stated he wanted to proceed pro se because Appellate Counsel would not raise
all the issues he wanted raised. Upon further questioning by the Court however, Green
withdrew his request to proceed pro se and stated that he did not wish to waive his right
to counsel on appeal and would proceed with his current Appellate Counsel if the
Supreme Court denied his motion for appointment of new Appellate Counsel. The
issues on appeal were noted by the Supreme Court as follows:

             (2) Green makes one argument on appeal. He contends that
             the cumulative effect of irrelevant and prejudicial testimony

                                           7
                deprived him of a fair trial. After a careful review of the
                record on appeal, we find that the challenged testimony did
                not jeopardize Green’s substantial rights or deprive him of a
                fair trial. We therefore affirm his convictions.7

        The Supreme Court on September 7, 2016 affirmed Green’s conviction and
sentence stating:
                (18) Green has not shown that the cumulative effect of the
                witnesses’ statements deprived him of a fair trial or resulted
                in “manifest injustice.” As we have noted before, the
                statements were isolated events in the trial, the trial judge
                properly addressed evidentiary objections brought to his
                attention, and gave a curative instruction when requested.
                Any prejudicial effect of the testimony relied upon by Green
                is also far outweighed by the overwhelming evidence of
                his guilt. Thus, the Superior Court was not required to grant
                Green a new trial based on the evidentiary issues raised by
                Green (emphasis not in the original).8

        On January 5, 2017 Green filed a pro se motion for postconviction relief and
Motion for Appointment of Counsel. The Motion for Appointment of Counsel was
granted on January 23, 2017.9
      FACTS
        Following are the facts as set forth by the Delaware Supreme Court:
                (3) Mother and her three daughters lived for a time in
                Connecticut, but moved to Mother’s sister’s house in
                Camden, Delaware due to conflict between Mother and
                Green. In February 2012, Mother and her daughters then
                moved to Kent Acres in Dover, Delaware. Green soon
                moved into the Kent Acres home. The five then moved to
                another home on Thames Drive in Dover. In August 2013,
 7
     Green v. State, 147 A.3d 748 (Table), 2016 WL 4699156, at *1.
 8
     Id. at *3 (footnote omitted).
 9
     State v. Green, Del. Super., ID No. 1406002733, Clark, J. (Jan. 23, 2017) (ORDER).

                                                8
they again moved, this time to Stevens Street in Kent County
just south of Dover. The victim and her older sister shared a
bedroom in the Stevens Street home.

(4) On May 28, 2014, the victim stayed home from school
because she did not feel well. That evening, Mother left the
house at around 8 p.m. to go bowling. The victim’s older
sister was away from the house at work. After the youngest
daughter went outside to play, the victim and Green were the
only ones in the house. Green went into the victim’s
bedroom while she was sleeping and removed her clothes.
Green then sexually assaulted the victim. When the victim’s
older sister came home from work after missing calls from the
victim, the victim told her that Green raped her. Green had
gone ‘out somewhere’ and was not at the house when the
victim’s older sister returned. The victim’s older sister called
911.

(5) When a police officer arrived at the Stevens Street home
around midnight, they spoke with the victim and collected the
clothes she wore during the assault. Once Mother returned
home, the officer accompanied Mother, the victim, and the
victim’s sisters to Kent General Hospital for a medical
examination. Dawn Culp, a sexual assault nurse examiner,
examined the victim. Culp swabbed the victim’s chest for
seminal fluid residue and noted abrasions in the victim’s
vagina. A DNA analysis of seminal fluid stains from the
victim’s clothes and the swab from her breast revealed a
match with Green’s DNA.

(6) On February 2, 2015, a grand jury indicted Green on
fifteen counts of sexual assault. The indictment alleged that
four counts occurred at the Kent Acres home, four counts
occurred at the Thames Drive home, and the remaining seven
counts occurred at the Stevens Street home.

(7) At Green’s June 2015 trial, the victim, the Mother,

                               9
              victim’s older sister, and Culp testified. The victim, who was
              fourteen at the time, testified that Green raped her on three
              separate occasions, once at each of their homes. The victim’s
              older sister testified that when she returned from work the
              night of the May 2014 incident, the victim told her that Green
              raped her and that it was not the first time. Mother testified
              that after she came home from her bowling league, police
              were at the house. She also testified that she went to the
              hospital with her daughters where the victim was crying and
              did not want to talk about the incident. Culp testified that she
              performed an extensive examination of the victim. During her
              examination, she found abrasions in the victim’s vagina and
              swabbed for DNA material. The DNA taken from the
              victim’s clothes and breast matched Green’s DNA.

              (8) As part of some background questions about Green’s
              relationship with Mother, the victim’s older sister testified
              that she had problems with Green because “He would hit
              [her] mom.” Green’s counsel did not object. Mother also
              testified that she and her daughters moved from Connecticut
              to Delaware because she and Green had a fight while living
              in Connecticut and he threatened to kill them. Green’s
              counsel objected and the court sustained the objection.
              Counsel did not request a curative instruction.

              (9) During Culp’s testimony, in response to a question about
              whether the victim’s complaints were consistent with the
              injuries she found, Culp responded that she believed what the
              victim told her about what occurred. Green’s counsel
              objected to Culp’s vouching for the credibility of the victim.
              The court sustained the objection and instructed the jury to
              disregard Culp’s personal opinion testimony on the victim’s
              credibility. After trial the jury found Green guilty of three of
              the fifteen counts of sexual assault. The court sentenced
              Green to a mandatory fifty year and nine month Level V
              sentence.10
10
     Green, 2016 WL 4699156, at **1-2.

                                            10
                                GREEN’S CONTENTIONS
          Green’s Appointed Counsel filed an Amended Motion for Postconviction Relief
pursuant to Superior Court Rule 61. In the motion, he raises the following claims for
relief:
                Claim I: Trial counsel failed to provide Mr. Green with
                effective representation throughout his trial in violation of Mr.
                Green’s Sixth, Eighth and Fourteenth Amendment rights
                under the United States Constitution, as well as his Delaware
                Constitutional rights under Article 1, §§ 4, 7 and 11.


                A. Applicable Law.
                B. Trial Counsel failed to object during trial.
                C. Trial Counsel failed to request a mistrial after the jury was
                exposed to highly prejudicial testimony from an expert
                witness.
                D. Trial Counsel failed to effectively cross-examine Ms.
                Paolo.
                E. Trial Counsel failed to request a specific unanimity
                instruction.
                F.     The cumulative prejudice of Trial Counsel’s
                ineffectiveness throughout trial necessitate relief.

                Claim II: Appellate Counsel was ineffective by failing to
                provide Mr. Green with effective representation in the
                appellate phase of the case in violation of Mr. Adkins’s
                [(sic?] Sixth and Fourteenth Amendment rights under the
                United State Constitution and his rights under Article I, §§ 4,
                7, and 9 of the Delaware Constitution by failing to raise
                arguably meritorious claims.

                A. Applicable Law.
                B.     Appellate Counsel’s constitutionally            deficient
                performance prejudiced Mr. Green.

                                               11
                                         DISCUSSION
         Under Delaware law, the Court must first determine whether Green has met the
procedural requirements of Superior Court Criminal Rule 61(i) before it may consider
the merits of the postconviction relief claims.11 Under Rule 61, postconviction claims
for relief must be brought within one year of the conviction becoming final.12 Green’s
motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the
motion. As this is Green’s initial motion for postconviction relief, the bar of Rule
61(i)(2), which prevents consideration of any claim not previously asserted in a
postconviction motion, does not apply either. Rule 61(i)(4) bars claims that have been
previously adjudicated.13 To some extent Green’s litany of errors alleged to have been
made by Trial Counsel are similar to his claims on direct appeal, concerning his Trial
Attorney’s failure to have objected to testimony. Consequently these claims should be
procedurally barred.
         To the extent Green now raises new claims not previously raised on direct appeal
they should be barred unless he demonstrates: (1) cause for relief from the procedural
default; and (2) prejudice from a violation of the movant's rights.14 The bars to relief are
inapplicable to a jurisdictional challenge or “to a claim that satisfies the pleading
requirements of subparagraph (2)(i) or (2)(ii) of subdivision (d) of Rule 61.15 To meet
the requirements of Rule 61(d)(2) a defendant must plead with particularity that new
evidence exists that creates a strong inference that the movant is actually innocent in fact
of the acts underlying the charges of which he was convicted16 or that he pleads with

 11
      Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
 12
      Super. Ct. Crim. R. 61(i)(1).
 13
      Super. Ct. Crim. R. 61(i)(4).
 14
      Super. Ct. Crim. R. 61(i)(3).
 15
      Super. Ct. Crim. R. 61(i)(5).
 16
      Super. Ct. Crim. R. 61(d)(2)(i).

                                                 12
particularity a claim that a new rule of constitutional law, made retroactive to cases on
collateral review by the United State or Delaware Supreme courts, applies to the
defendant’s case rendering the conviction invalid.17 Green’s motion pleads neither
requirement of Rule 61(d)(2).
         Each of Green’s grounds for relief are premised on allegations of ineffective
assistance of counsel. Therefore Green has alleged sufficient cause for not having
asserted these grounds for relief at trial and on direct appeal. Green’s ineffective
assistance of counsel claims are not subject to the procedural default rule, in part
because the Delaware Supreme Court will not generally hear such claims for the first
time on direct appeal. For this reason, many defendants, including Green, allege
ineffective assistance of counsel in order to overcome the procedural default. “However,
this path creates confusion if the defendant does not understand that the test for
ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit
similar, standards.”18 The United States Supreme Court has held that:
                [i]f the procedural default is the result of ineffective assistance of
                counsel, the Sixth Amendment itself requires that the responsibility
                for the default be imputed to the State, which may not ‘conduc[t]
                trials at which persons who face incarceration must defend
                themselves without adequate legal assistance;’ [i]neffective
                assistance of counsel then is cause for a procedural default.19

A movant who interprets the final sentence of the quoted passage to mean that he can
simply assert ineffectiveness and thereby meet the cause requirement will miss the mark.
Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage
in the two part analysis enunciated in Strickland v. Washington20 and adopted by the
 17
      Super. Ct. Crim. R. 61(d)(2)(ii).
 18
      State v. Gattis, 1995 WL 790961 (Del. Super.).
 19
      Murray v. Carrier, 477 U.S. 478, 488 (1986).
 20
      466 U.S. 668 (1984).

                                                13
Delaware Supreme Court in Albury v. State.21
       The Strickland test requires the movant show that counsel's errors were so
grievous that his performance fell below an objective standard of reasonableness.22
Second, under Strickland the movant must show there is a reasonable degree of
probability that but for counsel's unprofessional error the outcome of the proceedings
would have been different, that is, actual prejudice.23 In setting forth a claim of
ineffective assistance of counsel, a defendant must make and substantiate concrete
allegations of actual prejudice or risk summary dismissal.24
       Generally, a claim for ineffective assistance of counsel fails unless both prongs
of the test have been established.25 However, the showing of prejudice is so central to
this claim that the Strickland court stated "[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed."26 In other words, if the Court finds that there is no
possibility of prejudice even if a defendant's allegations regarding counsel's
representation were true, the Court may dispose of the claim on this basis alone.27
Furthermore, Green        must     rebut a "strong presumption" that trial counsel’s
representation fell within the "wide range of reasonable professional assistance," and this
Court must eliminate from its consideration the "distorting effects of hindsight when
viewing that representation."28

 21
    551 A.2d 53, 58 (Del. 1988).
 22
    Strickland, 466 U.S. at 687; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
 23
    Id.
 24
    See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995 WL
 466465 at *1 (Del. Supr.)).
 25
    Strickland, 466 U.S. at 687.
 26
    Id. at 697.
 27
    State v. Gattis, 1995 WL 790961 (Del. Super.).
 28
    Strickland, 466 U.S. at 689; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

                                              14
         Moreover, there is a strong presumption that defense counsel’s conduct
constituted sound trial strategy.29 In Harrington v. Richter,30 the United States Supreme
Court explained the high bar that must be surmounted in establishing an ineffective
assistance of counsel claim. In Harrington, the United States Supreme Court explained
that representation is constitutionally ineffective only if it so undermined the proper
functioning of the adversarial process that the defendant was denied a fair trial.31 The
challenger’s burden on an ineffective assistance of counsel claim is to show that counsel
made errors so serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. It is not enough to show that the errors had some
conceivable effect on the outcome of the proceeding. Counsel’s errors must be so
serious as to deprive the defendant of a fair trial.32
         Counsel’s representation must be judged by the most deferential of standards.
The United States Supreme Court cautioned that reviewing courts must be mindful of the
fact that unlike a later reviewing court, the attorney observed the relevant proceedings,
knew of materials outside the record, and interacted with his client, with opposing
counsel, and with the judge. In light of this strong precedent I have reviewed the file,
considered Trial and Appellate Counsels’ affidavits and the arguments of counsel and
I conclude that Green is simply nit picking at each conceivable potential instance when
an objection or defense request could have been made based on a “Monday Morning
Quarterback” rational. Both Trial and Appellate Counsel have vast and extensive
criminal trial and appellate experience respectively. Between them they have nearly
seventy years of criminal practice and are well versed in trial and appellate strategy. I

 29
      Strickland v. Washington, 466 U.S. 668, 689 (1984).
 30
      Harrington v. Richter, 131 S.Ct. 770 (201l).
 31
      Id., at 791.
 32
      Id.

                                                15
find Trial and Appellate Counsels’ affidavits far more compelling than Green’s nit
picking Monday Morning Quarterbacking. Trial Counsel was “on the ground” and made
wise strategy decisions not to object at various points during the trial. The fact that she
was able to secure both judgments of acquittals for several charges and not guilty
verdicts on many more counts is impressive in light of the “overwhelming” evidence of
Green’s guilt, as noted by the Delaware Supreme Court in its opinion. The Delaware
Supreme Court in Strickland clearly sought to foreclose the type of “ticky tacky” claims
Green makes in hindsight. I find that Trial and Appellate Counsel represented Green
effectively. I chose not to go through each and every little instance Green claims some
potential error, because I do not see any conceivable way that the errors he has alleged
could possibly have prejudiced Green under the facts of this case. I find the State’s
detailed discussion of each of Green’s claims well done and adopt their arguments
concerning Trial and Appellate Counsel well reasoned strategic choices.33 Bottom line,
I conclude that Trial and Appellate Counsel represented Green in a competent manner
and that there was no prejudice resulting from any act or omission.34

                                       CONCLUSION

       After reviewing the record in this case, it is clear that Green has failed to avoid
the procedural bars of Superior Court Criminal Rule 61(i). A review of his counsels’
affidavits clearly show that counsel represented Green in a competent fashion and was
not ineffective. Additionally, Green has failed to demonstrate any concrete prejudice.
Consequently, I recommend that Green’s motion be denied as procedurally barred by
Rule 61(i)(3) and (4) for failure to prove cause and prejudice and as previously
 33
    State v. Green, Del. Super., ID No. 1406002733, D.I. 85, pp. 4-15.
 34
   I also note that this case could easily have been a candidate for a Motion to Withdraw as Counsel
 under Super. Ct. Crim. R. 61(e)(6) as lacking merit. Just because counsel is appointed does not
 automatically mean that there are meritorious claims.

                                                16
adjudicated.


               /s/ Andrea M. Freud
                 Commissioner




                 17
