           IN THE SUPREME COURT OF THE STATE OF DELAWARE

VICTOR RODRIGUEZ                     §
                                     §     No. 199, 2014
      Defendant Below,               §
      Appellant,                     §     Court Below:
                                     §
      v.                             §     Superior Court of the
                                     §     State of Delaware, in and
STATE OF DELAWARE,                   §     for Sussex County
                                     §
      Plaintiff Below,               §     Cr. I.D. No. 0904025840
      Appellee.                      §

                         Submitted: November 12, 2014
                           Decided: January 29, 2015

Before STRINE, Chief Justice, HOLLAND, and VAUGHN, Justices.

Upon appeal from the Superior Court. AFFIRMED.


Edward C. Gill, Esquire, Georgetown, Delaware, Attorney for Appellant.

Kathyrn J. Garrison, Esquire, Department of Justice, Dover, Delaware, Attorney
for Appellee.
VAUGHN, Justice, for the Majority:

         The appellant, Victor Rodriguez, filed this appeal from the Superior Court’s

denial of his motion for postconviction relief pursuant to Superior Court Rule 61. We

agree with the Superior Court’s denial and affirm.

                              I. Facts and Procedural History

         On July 22, 2010, a Superior Court jury found Rodriguez guilty of Reckless

Burning, Burglary in the Third Degree, two counts of Criminal Trespass in the Third

Degree, and three counts of Arson in the Second Degree. After finding that he was

an habitual offender, the Superior Court sentenced Rodriguez to life in prison for

each of his arson convictions. This Court affirmed Rodriguez’s convictions on direct

appeal.1

         On November 2, 2012, Rodriguez, filed a pro se motion for postconviction

relief alleging ineffective assistance of counsel. On April 11, 2013, he filed a pro se

motion for an evidentiary hearing. Thereafter, counsel was appointed to represent

Rodriguez. Rodriguez amended his filings, adding a request for funding to retain an

arson investigation expert. The Superior Court denied Rodriguez’s motion for

postconviction relief and refused his requests for funding to hire an expert and for an


1
    See Rodriguez v. State, 30 A.3d 764 (Del. 2011).

                                                 2
evidentiary hearing.2

         The charges against Rodriguez arose out of five fires. Three of them occurred

on April 13, 2009 and were reported to authorities between 4:10 a.m. and 5:30 a.m.

(the Hampton Inn, Reynolds Pond, and Milton Meadows fires, collectively the Milton

fires). The fourth and fifth occurred on April 24, 2009. One, the Heritage Creek Fire,

was reported to authorities at 3:50 a.m. While investigating that fire, investigators

found the second fire nearby (the Arch Street fire). Fire investigators determined that

all five had been deliberately set.

         At the scene of the Milton Meadows fire, Deputy Fire Marshal Harry Miller

discovered and photographed two sets of fresh, undisturbed bicycle tracks that led

from the road to the area where the fire had originated. While investigating the

Heritage Creek and Arch Street fires, investigators found bicycle tire tracks and shoe-

prints in an alley between the Heritage Boulevard house and the Arch Street house.

Investigators took two castings of the tracks, and Assistant Chief Fire Marshal

Richard Ward took pictures of the track impressions on his cell phone. Tire tracks

and shoe-prints were also found at the rear of the Arch Street house and by a nearby

dumpster.


2
    State v. Rodriguez, 2014 WL 1724778 (Del. Super. Apr. 14, 2014).

                                                3
      Investigators determined that the April 13 Milton fires followed a single line

of travel stretching sixteen miles from the Hampton Inn to Milton Meadows. After

the fires, investigators canvassed the area for a bicycle with tires that matched the tire

tracks found at the Milton Meadows scene. On April 15, Miller found a green

mountain bike belonging to Rodriguez outside of Allen Family Foods, a facility

located 1.9 miles from Milton Meadows. The width and tread of the bike tires

appeared similar to those indicated by the tracks at the Milton Meadows fire.

      Rodriguez worked at Allen Family Foods. On April 13, 2009, he clocked in

late to work at 4:59 a.m. Rodriguez’s roommate testified that Rodriguez used his

bike to get around and to work. Investigators calculated the distance between the

April 13, 2009 fires, and determined that someone traveling on a bicycle at fifteen

miles per hour could have set the three fires and arrived at Allen Family Foods by

5:00 a.m.

      Between April 13 and 24, Rodriguez moved from Smyrna to Milton. On April

23, 2009, Rodriguez was seen riding his bicycle on Route 5, approximately one-half

of a mile north of where the Heritage Creek and Arch Street fires would occur one

day later. Rodriguez’s most direct route from his new residence in Milton to Allen

Family Foods would have taken him on Route 5 past the Heritage Creek


                                            4
Development. On April 24, 2009, Rodriguez rode his bike to work. He arrived

between 4:05 a.m. and 4:10 a.m., and had bags with him. Ward estimated that the

Heritage Boulevard fire had been set that morning between 3:00 and 3:15 a.m. and

that the Arch Street fire had been burning since approximately 3:15 a.m.

      Based on comparisons of Rodriguez’s bike tires to the tire impressions found

at the Milton Meadows fire and the Heritage Creek fire, his past history of arson and

knowledge of Rodriguez’s route of travel between his residence and Allen Family

Foods, Ward decided to charge Rodriguez with setting the fires. Officials awaited

Rodriguez at his residence in Milton to arrest him. Rodriguez arrived in a white

pickup truck driven by his coworker and roommate. Rodriguez’s mountain bike,

which had been observed at Allen’s earlier that day, was in the back of the truck.

Rodriguez was also wearing the same rubber boots he wore for work. After his arrest,

the boots and the mountain bike were seized as evidence for later analysis.

      During a search of Rodriguez’s rented room with his consent, officials found

four to seven bags of newspapers in the room and a laptop computer. No shoes were

found. The newspapers appeared to have been discarded by stores and did not appear

to have been read. Later investigation of the laptop revealed that, prior to April 23,

2009, a user of Rodriguez’s laptop had viewed an April 14, 2009 Milton Beacon


                                          5
article describing the Milton fires.

       Rodriguez was charged with multiple counts, including arson, related to all five

fires. Trial in Rodriguez’s case began on July 12, 2010. At the conclusion of the

State’s case, Rodriguez moved for and the trial court granted a judgment of acquittal

on all charges related to the Hampton Inn and Reynold’s Pond fires because there was

no physical evidence connecting Rodriguez to these fires. As mentioned, on July 22,

2010, the jury found Rodriguez guilty of Reckless Burning, Burglary in the Third

Degree, two counts of Criminal Trespass in the Third Degree, and three counts of

Arson in the Second Degree in connection with the other three fires.

       In his postconviction motion, Rodriguez alleges that his trial counsel was

ineffective by (i) failing to object to Fire Marshal Ward’s testimony; (ii) deferring his

opening statement until the close of the State’s case; (iii) failing to move for a mistrial

after Rodriguez was acquitted of charges arising from the Hampton Inn and

Reynold’s Pond fires; (iv) failing to object to the State’s experts’ conclusions that all

the fires were the result of arson; and (v) failing to file a pre-trial motion to suppress

the search and seizure of his bicycle and boots. Rodriguez raises the same allegations

on appeal and, in addition, alleges that the Superior Court erred in the postconviction

proceeding by (vi) denying his request for funds to retain a defense expert; (vii)


                                            6
denying his request to hold an evidentiary hearing on his claims of ineffective

assistance of counsel and (viii) denying his request to hold an evidentiary hearing

concerning the circumstances of the search and seizure of his bicycle and boots.

                                          II. Discussion

          We review a trial court’s denial of postconviction relief for abuse of

discretion.3 To prevail on an ineffective assistance of counsel claim, Rodriguez must

satisfy the two-prong Strickland standard, which requires that he prove that trial

counsel’s performance was objectively unreasonable and that the defendant was

prejudiced as a result.4           Under the first prong, judicial scrutiny is "highly

deferential."5 Courts must ignore the "distorting effects of hindsight" and proceed

with a "strong presumption" that counsel’s conduct was reasonable.6 Under the

second prong, Rodriguez must show "a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different."7 "A

reasonable probability is a probability sufficient to undermine confidence in the

3
    Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
4
    Strickland v. Washington, 466 U.S. 668, 694 (1984).
5
    Id. at 689.
6
    Id.
7
    Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 687).

                                                  7
outcome."8 Thus, "[a]n error by counsel, even if professionally unreasonable, does

not warrant setting aside the judgment of a criminal proceeding if the error had no

effect on the judgment."9

          Rodriguez first contends that trial counsel was ineffective by failing to object

to testimony from Ward. The testimony complained of is as follows:

                   Three major fires. I had a great deal of interest in it. There
                   was no way that I could, from experience or from just
                   common sense, that I couldn’t relate that the three fires
                   were connected in one way or the other. I mean, you have
                   a better chance of getting hit by lighting then having
                   something like that happen.

The Superior Court presumed that counsel’s failure to object was ineffective, but

determined that a curative instruction which it gave concerning the testimony cured

any potential prejudicial effect. Rodriguez argues that the curative instruction only

increased the prejudicial effect of counsel’s initial failure to object. However, it is

presumed that the jury follows the instruction of the trial court.10 Further, on two of

the three fires referred to by Ward, Rodriguez was acquitted by the trial court. The

Superior Court did not abuse its discretion in finding that Rodriguez failed to


8
     Strickland, 466 U.S. at 687.
9
     Id. at 692.
10
     See Claudio v. State, 585 A.2d 1278, 1280 (Del. 1991).

                                                 8
establish prejudice with respect to this claim.11

       Rodriguez’s second contention is that trial counsel was ineffective for deferring

his opening statement until the close of the State’s case. There is no constitutional

requirement that defense counsel give an opening statement prior to the start of the

State’s case. Instead, the timing and content of an opening statement are matters of

litigation strategy. The record reflects that trial counsel made a tactical decision to

wait until the State finished its case before giving his opening in this case.12 The

Superior Court did not abuse its discretion in finding that trial counsel’s decision was

within the range of reasonable professional assistance.13

       Third, Rodriguez claims his trial counsel was ineffective for failing to move

11
    See Manlove v. State, 527 A.2d 281, 1987 WL 37711, *1 (Del. June 3, 1987) (TABLE)
(holding “[t]his Court need not consider these criteria in any particular order or even address both
if the defendant makes an insufficient showing on one”); Swan v. State, 28 A.3d 362, 391 (Del.
2011) (quoting Strickland, 466 U.S. at 697). This Court is free to assume ineffective
representation, or bypass it altogether, “[i]f it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, . . .” Id.
12
   Holmes v. State, 422 A.2d 338, 339 (Del. 1980) (holding counsel’s decision to open after the
State’s case-in-chief did not amount to a constitutional violation). Moreover, Superior Court
Criminal Rule 57(d) provides that where the criminal rules are silent on a point, the Superior
Court will regulate its practice in accordance with the applicable Superior Court civil rule.
Superior Court Civil Rule 42.1 expressly permits a defense attorney to make an opening
statement immediately following the State’s opening statement, or at the close of the State’s
evidence, as counsel chooses.
13
    See State v. Manlove, 1986 WL 14001, *2 (Del. Super. Nov. 17, 1986), aff’d 527 A.2d 281,
1987 WL 37711 (Del. June 3, 1987) (TABLE) (nature of an opening statement is mostly a
litigation strategy).

                                                 9
for a mistrial after the trial court granted a motion for judgment of acquittal on two

of the five fires at the conclusion of the State’s case. As a result, he argues, the jury

was exposed to evidence of other alleged bad acts without the proper analysis

pursuant to Delaware Rule of Evidence 404(b). However, when the evidence of the

two fires was admitted during the State’s case, it was admitted for a proper purpose

as evidence of charged crimes. The trial court instructed the jury that it must not

consider the evidence pertaining to the charges upon which judgment for acquittal

was granted and it is presumed that the jury followed that instruction. The Superior

Court did not abuse its discretion in finding that Rodriguez failed to prove prejudice

with regard to this claim.

      Rodriguez’s fourth claim is that trial counsel was ineffective for failing to

object to the State’s experts’ conclusions that all of the fires were the result of arson.

The record reflects that trial counsel made the tactical decision to forego challenging

whether the fires were deliberately set or accidental because the issue was immaterial

to Rodriguez’s defense at trial that he did not set the fires. We find no abuse of

discretion in the Superior Court’s conclusion that the charge of ineffectiveness did

not satisfy the Strickland standard.

      Rodriguez’s fifth claim is that trial counsel was ineffective for failing to seek


                                           10
suppression of the bicycle and boots. The record reflects that the bicycle was

photographed while in plain view and that the boot prints were compared to a

standard pair of boots issued by Rodriguez’s employer, not his boots specifically.

Neither the bicycle nor boots were seized prior to his arrest. The trial court concluded

that a motion to suppress had no merit, and we find no abuse of discretion.

      Rodriguez’s sixth claim is that the Superior Court committed error by not

authorizing funds for a defense expert in the postconviction proceeding. He makes

conclusory statements that arson investigations are not based on sound science

without attempting to explain how the experts’ opinions in this case could have been

challenged. The expenditure of funds for the defense is discretionary, and we find no

abuse of discretion in the trial court’s conclusion that Rodriguez’s challenge to the

validity of arson investigations was unpersuasive or its decision to deny funds for a

defense expert.

      Rodriguez’s seventh claim is that the Superior Court erred by denying his

request for an evidentiary hearing on his claim that counsel was ineffective by failing

to object to the State’s experts’ testimony.       For the reasons given regarding

Rodriguez’s fourth and sixth claims, we find no abuse of discretion in the trial court’s

decision not to hold an evidentiary hearing.


                                          11
      Finally, Rodriguez argues that the Superior Court erred by refusing to hold an

evidentiary hearing to determine whether the search and seizure of his bicycle and

boots was constitutional. For the reasons given regarding Rodriguez’s fifth claim, we

find no abuse of discretion in the Superior Court’s denial of Rodriguez’s request for

an evidentiary hearing on this issue.

      Rodriguez has not met the two-prong Strickland standard to establish

ineffective assistance of counsel. Moreover, he has not shown that the Superior Court

abused its discretion in denying funds to retain a defense expert or denying his

request for an evidentiary hearing.

                                  III. Conclusion

      Accordingly, we affirm the Superior Court’s denial of Rodriguez’s motion for

postconviction relief on the basis of and for the reasons assigned by the Superior

Court in its Opinion dated April 14, 2014.




                                         12
STRINE, Chief Justice, concurring:

       I concur in my colleagues’ ultimate resolution of this matter and in their finding

that Rodriguez did not establish prejudice under Strickland. Accordingly, I agree that

the judgment of the Superior Court should be affirmed. But I write separately to

emphasize two points.

       First, in responding to Rodriguez’s claims that his trial counsel was ineffective

for failing to object to Fire Marshal Ward’s testimony and that the Superior Court’s

limiting instruction did not cure any prejudice, my colleagues invoke the presumption

that jurors can and will disregard information they have heard because the judge tells

them to. I confess reticence to relying upon a judicially-invented presumption as a

short-hand to address the admission of improper testimony that could lead a jury to

convict a defendant for improper reasons.14 In confessing that reticence, I in no way

divide with the Majority Opinion on affirming the judgment of the Superior Court.

But I see no reason to jump to reliance on the presumption here, when I fail to see in

the first place how Ward’s statement was prejudicial to Rodriguez, who never

disputed that the fires were deliberately set—only that he was not the one who set

14
   See Richardson v. Marsh, 481 U.S. 200, 211 (1987) (“The rule that juries are presumed to
follow their instructions is a pragmatic one, rooted less in the absolute certitude that the
presumption is true than in the belief that it represents a reasonable practical accommodation of
the interests of the state and the defendant in the criminal justice process.”).

                                                11
them. Ward was responding to a question about the cause of one of the fires for which

Rodriguez was eventually acquitted, so the perception that all of the fires were the

work of a single arsonist may even have assisted Rodriguez.

       Furthermore, I agree with the Majority Opinion that based on the circumstances

of this case, Rodriguez’s argument that the court’s curative instruction was ineffective

and that the presumption is inconsistent with social science research is without merit.

But that is precisely because an analysis of the arguably prejudicial evidence indicates

that it is of the sort that a jury could put out of its mind after being so instructed.15 In

situations when the improper evidence or argument is of a kind that bears more on the

defendant’s guilt, it would be difficult for anyone to “unhear and unthink.” To ask a


15
   See, e.g., David Alan Sklansky, Evidentiary Instructions and the Jury As Other, 65
STANFORD L. REV. 407 (2013) (finding that, contrary to the popular myth that they are per se
ineffective, “[e]videntiary instructions probably do work, although imperfectly and better under
some circumstances than others”); Cassandra L. Wilson & Eric Laws, The Effect of Judges’
Instructions About Case Information on Jury Memory, 4 LONGWOOD UNIV. J.
UNDERGRADUATE SCHOLARSHIP (2011), available at
http://blogs.longwood.edu/incite/2011/08/29/the-effect-of-judges%E2%80%99-instructions-abou
t-case-information-on-jury-memory/ (citing S.M. Kassin & C.A. Studebaker, Instructions to
Disregard and the Jury: Curative and Paradoxical Effects, INTENTIONAL FORGETTING:
INTERDISCIPLINARY APPROACHES, Golding, J. M., & MacLeod, C. M., eds. (1998)) (“if
the presented information is considered to be irrelevant or only slightly influences the case at
hand, then it is much more likely that the juror will be able to disregard the statement.”). See also
Kerri L. Pickel, et al., Jurors’ Responses to Unusual Inadmissible Evidence, 36 CRIM. JUSTICE
& BEHAVIOR 466 (2009), available at
http://kpickel.iweb.bsu.edu/PickelKaram&Warner(2009).pdf (finding that jurors are able to
disregard or forget inadmissible evidence when the content of the evidence is neutral or not
“especially memorable”).

                                                 12
jury to do so, as Learned Hand noted in 1932, is “a mental gymnastic which is

beyond, not only their powers, but anybody’s else.”16 We should be reticent to invoke

a judge-made presumption without considering whether it is a reliable basis for

upholding a conviction under the specific circumstances of the case at hand.

         Likewise, I cannot join my colleagues’ determination that Rodriguez’s trial

counsel made a reasoned, tactical decision to defer his opening argument until after

the State had presented its case and that this decision was not ineffective under the

first prong of Strickland. Counsel’s sole explanation in his Rule 61(g)417 affidavit for

deferring his opening statement until the end of the State’s case-in-chief was that he

“believed that the State’s ability to connect the defendant with various incidences of

arson was tenuous and therefore reserved opening statements until the full

presentation of the State’s case.” No doubt the Superior Court Rules permit attorneys

to choose to defer making an opening statement.18 Thus, there is no invariable

requirement that a defendant must give an opening statement at the beginning of trial,




16
     Nash v. U.S., 54 F.2d 1006, 1007 (1932).
17
     Super. Ct. Crim. R. 61(g).
18
     See Super. Ct. Civ. R. 42.1.

                                                13
as this Court has recognized on multiple occasions.19 But the decision not to do so

should be made carefully because it leaves the jury with only the State’s version of

events until deep into the trial process.

       Not only that, a reading of the opening argument that Rodriguez’s counsel

eventually made does not suggest that it was the careful product of counsel’s

searching consideration of the State’s case-in-chief, and a distillation of its key

weaknesses into an explanation for the jury of how the defense’s case would highlight

the many reasons the State could not meet its high burden of proof. Instead, the

opening that counsel had supposedly delayed for strategic advantage was perfunctory,

occupying a full four transcript pages. Given other efforts of counsel during the case,

which resulted in Rodriguez being acquitted of charges related to two of the fires, and

the overall record, I agree with my colleagues that Rodriguez has not shown that had

his counsel made an opening argument at the beginning of trial, there is a reasonable

probability of a different outcome. Rodriguez has thus not satisfied his burden to

demonstrate prejudice under the second prong of Strickland. But I cannot embrace

19
   See, e.g., Shockley v. State, 565 A.2d 1373, 1380 (Del. 1989) (holding that counsel’s
“unorthodox” choice to waive both opening and closing statements was not constitutionally
defective under Strickland); State v. Manlove, 1986 WL 14001, *2 (Del. Super. Nov. 17, 1986),
aff’d, 527 A.2d 281 (Del. 1987) (“The nature of the opening statement of counsel is largely a
matter of litigation strategy. It cannot be said that counsel’s following a particular strategy of
speaking of certain matters and not of others constitutes ineffective assistance of counsel.”).

                                                14
the notion that counsel’s unexplained deferral of the right to speak to the jury on his

client’s behalf and later generic opening can be deemed the product of a reasonable

strategic decision-making process.




                                          15
