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 2" (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 case the defense moved for a Judgment of Acquittal as to several
State v. Green
ID No. 1406002733
September 23, 2019

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 ofa 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
State v. Green
ID No. 1406002733
September 23, 2019

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 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.’

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).’

On January 5, 2017 Green filed a pro se motion for postconviction relief and

 

' Green vy. State, 147 A.3d 748 (Table), 2016 WL 4699156, at *1.

* Td. at *3 (footnote omitted).
State v. Green
ID No. 1406002733
September 23, 2019

Motion for Appointment of Counsel. The Motion for Appointment of Counsel was

granted on January 23, 2017.
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,
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.

 

> State v. Green, Del. Super., ID No. 1406002733, Clark, J. (Jan. 23, 2017) (ORDER).

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State v. Green
ID No. 1406002733
September 23, 2019

(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,
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
ofthe victim. During her examination, she found abrasions
in the victim’s vagina and swabbed for DNA material. The

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State v. Green
ID No. 1406002733
September 23, 2019

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.’

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:

 

* Green, 2016 WL 4699156, at **1-2.
State v. Green
ID No. 1406002733
September 23, 2019

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.
State v. Green
ID No. 1406002733
September 23, 2019

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.’ Under Rule 61, postconviction claims
for relief must be brought within one year of the conviction becoming final.° 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.’ 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.* The

bars to relief are inapplicable to a jurisdictional challenge or “to a claim that satisfies

 

5 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
° Super. Ct. Crim. R. 61(i)(1).
7 Super. Ct. Crim. R. 61(i)(4).

* Super. Ct. Crim. R. 61(i)(3).
State v. Green
ID No. 1406002733
September 23, 2019

the pleading requirements of subparagraph (2)(1) or (2)(1i) of subdivision (d) of Rule
61.2. 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
convicted’? or that he pleads with 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.'' 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

 

* Super. Ct. Crim. R. 61(i)(5).
'° Super. Ct. Crim. R. 61(d)(2)(i).

'' Super. Ct. Crim. R. 61(d)(2)(ii).
State v. Green
ID No. 1406002733
September 23, 2019

distinct, albeit similar, standards.”'? 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;’
[ilneffective assistance of counsel then is cause for a procedural
default.'°
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. Washington" and
adopted by the Delaware Supreme Court in Albury v. State.'°
The Strickland test requires the movant show that counsel's errors were so
grievous that his performance fell below an objective standard of reasonableness. '®

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

 

' State v. Gattis, 1995 WL 790961 (Del. Super.).
'S Murray v. Carrier, 477 U.S. 478, 488 (1986).

4 466 U.S. 668 (1984).

> 551 A.2d 53, 58 (Del. 1988).

° Strickland, 466 U.S. at 687; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).

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State v. Green
ID No. 1406002733
September 23, 2019

would have been different, that is, actual prejudice.'’ 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.'®

Generally, aclaim for ineffective assistance of counsel fails unless both prongs
of the test have been established.'? 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."”° 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.”’ 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."”

 

" Td.

'8 See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995
WL 466465 at *1 (Del. Supr.)).

" Strickland, 466 U.S. at 687.

°° Id. at 697.

*! State v. Gattis, 1995 WL 790961 (Del. Super.).

* Strickland, 466 U.S. at 689; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

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State v. Green
ID No. 1406002733
September 23, 2019

Moreover, there is a strong presumption that defense counsel’s conduct
constituted sound trial strategy. In Harrington v. Richter,“ 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.” 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.”°

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

 

23 Syrickland v. Washington, 466 U.S. 668, 689 (1984).
** Harrington vy. Richter, 131 S.Ct. 770 (201).

> Id., at 791.

°° Td.

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State v. Green
ID No. 1406002733
September 23, 2019

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 find Trial and Appellate Counsels’ affidavits far more
compelling than Green’s nit picking Monday Morning Quarter backing. 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.*’ Bottom line, I conclude that

Trial and Appellate Counsel represented Green in a competent manner and that there

 

27 State v. Green, Del. Super., ID No. 1406002733, D.I. 85, pp. 4-15.

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State v. Green
ID No. 1406002733
September 23, 2019

resulting from any act or omission.”®
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 adjudicated.

/s/_ Andrea M. Freud
Commissioner

AMF/dsc
oc: Prothonotary

 

*8 | 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.

14
