IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
v. I.D. # 1306023761A

DAVID G. NAUGHTON,

Defendant.

\/\/\_/\_/\/\/\/

Date Submitted: July 14, 2016
Date Decided: October 12, 2016

Upon Defendant’s Motion for Post-Conviction Relief: DENIED

This 12th day of October, 2016, upon consideration of Defendant’s Motion
for Post-Conviction Relief (the “Motion”) under Superior Court Criminal Rule 61
(“Rule 61”) and the record in this case, it appears to the Court that:
FACTUAL AND PROCEDURAL BACKGROUND
1. David G. Naughton vvas arraigned on July 9, 2013 on charges that he
raped, and engaged in unlawful sexual conduct With, his granddaughter. Naughton
Was released on bond With the condition that he have no contact, direct or indirect,
With the alleged victim. In the conditions of release that he signed, Naughton
acknowledged he Was prohibited from (1) being in the physical presence of the
alleged victim, (2) sending any communication to the alleged victim by mail,

through another person, or through electronic means, (3) contacting the victim in

any way, and (4) having anyone else, other than his attorney, contact the alleged
victim.

2. Naughton was indicted on July 22, 2013 on charges of Rape in the
Second Degree and SeX Offender Unlawful SeXual Conduct with a Child. In
August 2013, Naughton Wrote a letter to his daughter, Melissa Naughton, who is
the aunt of the alleged victim. In the letter, Naughton asked l\/Ielissa to speak with
the alleged victim and ask her to “tell the truth.” On September 16, 2013, a grand
jury re-indicted Naughton to add one count of Non-Compliance with Conditions of
Bond. On September 5, 2014, the State dismissed the charges of rape and unlawful
sexual conduct and moved to amend the remaining charge to Attempted Non-
Compliance with Conditions of Bond.

3. At trial on September 9, 2014, Naughton admitted signing the bond
conditions and writing the letter to Melissa Naughton.l Naughton conceded that,
through the letter, he was “asking or telling Melissa to speak to [the alleged
victim].”2 When Melissa Naughton testified at trial, she acknowledged receiving
the letter and stated she recognized, through handwriting and other characteristics,
that Naughton wrote the letter.3 The jury also heard the testimony of Detective

Steven Burse, who was the detective investigating Naughton on the rape and

 

1 Triai Tr. 68-70.
2 Id. at 76, 77.
3 Id. at 41-43.

unlawful sexual conduct charges. Because those charges had been dismissed by
the time of trial, the Court excluded testimony regarding the nature of the
dismissed charges and instructed the jury that those charges were not relevant for
purposes of reaching their verdict for the remaining charge.4 Detective Burse
testified that he arrested Naughton and turned him over for arraignment5 During
his testimony, the State elicited Detective Burse’s background, which included
testimony that “the majority of the cases [he] handle[s] are abuse situations
involving juveniles and serious domestic-related incidents.”6

4. Although the letter Naughton wrote to Melissa was a trial exhibit,
counsel agreed to redact the portions that referred to the alleged victim’s
allegations of sexual misconduct by Naughton. During closing arguments,
however, Naughton’s counsel, Christopher Tease, Esquire (“Trial Counsel”),
referenced a portion of the letter that had been redacted, specifically the alleged
victim’s statement that Naughton “squeezed her tooty real hard.”7 The Court
immediately instructed the jury to disregard that statement, explaining:

Ladies and gentlemen of the jury, whatever other charges there

might be or might have been is really beside the point. For purposes

of the question, you have to decide whether all of the elements of

attempted noncompliance with conditions of bond have been proved.
And it is important for you to simply not be distracted and not to

 

4 Id. at 20-21.
5 Id. at 20-22.
6 Id. at 19-20.
7 Id. at 96-97.

focus on things that are not in front of you for your consideration
about which you did not hear evidence. And with that in mind,
ignore the - and disregard the very last comment that [Trial Counsel]
made.8

5 . After receiving instructions on the law, the jury retired to deliberate
and returned a guilty verdict on the charge of attempted non-compliance with bond
conditions.9 After trial, but before Naughton was sentenced, Trial Counsel was
placed on disability status, and new counsel, Patrick Collins, Esquire (“Substitute
Counsel”) was appointed to represent Naugton. At sentencing on May 29, 2015,
Naughton was sentenced to five years at Level V, with credit for 41 days
previously served, suspended for five years at Level IV Home Confinement,
suspended after six months for 18 months at Level III.10

6. Substitute Counsel timely filed a notice of appeal on Naughton’s
behalf, followed by a brief and a motion to withdraw under Supreme Court Rule
26(c). Substitute Counsel asserted that, based on a complete and careful
examination of the record, there were no arguably appealable issues. Despite
being given an opportunity to do so, Naughton did not raise any issues for the
Supreme Court to consider on appeal. The Delaware Supreme Court reviewed the

record and concluded Naughton’s appeal was “wholly without merit and devoid of

 

8 Id. at ioi.
9 Id. ar 123-24.
10 D.i. 72.

any arguably appealable issue.”ll The Delaware Supreme Court therefore affirmed
Naughton’s conviction.

7. Naughton filed this Motion on February ll, 2016, Naughton raised
two grounds for post-conviction relief in his Motion: (l) ineffective assistance by
his Trial Counsel, and (2) prosecutorial misconduct12 By order dated April 25,
2016, the Court ordered Substitute Counsel to respond to the Motion by affidavit
and further ordered the State to respond after Trial Counsel’s affidavit was filed.
Finally, the Court granted Naughton time to respond to the submissions by Trial
Counsel and the State. Naughton did not file a response.13

ANALYSIS

A. Procedural bars to Naughton’s claims
8. Before addressing the merits of any claim for post-conviction relief,
this Court first must determine whether the motion procedurally is barred under
Rule 6l.14 A motion for post-conviction relief may be barred for timeliness and

repetition, among other things. A motion filed under Rule 61 is untimely if it is

 

11 Naugh¢on v. sze, 2015 WL 9434546, at *i (Dei. Dec. 22, 2015).

12 D.i. 33 at 3.

13 Naughton filed a Motion for Appointment of Counsel on April 18, 2016, This Court denied
that motion by order dated June 28, 2016. On July 12, 2016, Naughton filed a letter detailing
what he believes are the “exceptional circumstances” justifying appointment of counsel. To the
extent that letter constitutes a motion to reargue the motion for appointment of counsel,
Naughton’s request is denied. The “exceptional circumstances” Naughton alleges are his
inability to afford counsel, which this Court previously concluded did not rise to the level of
exceptional circumstances See D.l. 90.

14 See Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554
(Del. 1990).

filed more than one year after a final judgment of conviction.15 A defendant also is
barred from filing successive motions for relief under the rule.16 The rule further
prohibits motions based on any ground for relief that was not asserted in the
proceedings leading up to the judgment of conviction, unless the movant
demonstrates “cause for relief from the procedural default” and “prejudice from
violation of the movant’s rights.”17 Finally, the Rule bars consideration of any
ground for relief that previously was adjudicated in the case.18

9. Notwithstanding the aforementioned procedural bars, this Court may
consider a motion that otherwise is barred if the motion is based on claims that the
Court lacked jurisdiction or the motion satisfies the pleading requirements set forth
in Rule 61(d)(2).19 Rule 61(d)(2) requires that the movant plead with particularity
that (i) new evidence exists that creates a strong inference that the movant actually
is innocent in fact of the acts underlying the charges of which he was convicted, or
(ii) a new rule of constitutional law, made retroactive to cases on collateral review

by the United States Supreme Court or the Delaware Supreme Court, applies to the

movant’s case and renders the conviction or death sentence invalid.

 

15 super ct. crim. R. 61(i)(i).

16 Id. 61(i)(2); see id. 61(d)(2)(i)-(ii) (regarding the pleading requirements for successive
motions).

111¢1.610)(3).

111 id. 61('i)(4).

19!¢1.61(1)(5).

10. Naughton’s claim of prosecutorial misconduct procedurally is barred
because it is one that could have been, but was not, raised in the proceedings
leading up to his conviction Naughton’s Motion does not specifically explain
what misconduct he contends the State committed; he simply asserts that the State
“blatantly erred” by “not following [the] judge’s instruction in direct examination
of . . . Detective [Burse].”20 There were no objections raised during Detective
Burse’s testimony. The State did elicit testimony that Detective Burse’s primary
duties involved investigating juvenile abuse and serious domestic-related cases.
The jury also heard testimony that Detective Burse arrested Naughton in July 2014.
Naughton’s Trial Counsel did not object to that testimony, and neither Naughton
nor Substitute Counsel raised the issue on appeal. This claim therefore is barred by
Rule 61(i)(3). Naughton has not demonstrated “cause for relief’ from that
procedural default, nor has he satisfied the pleading requirements of Rule 61(i)(5)
to overcome that default. Naughton contends no objection was raised at trial
because Trial Counsel was ineffective, but he does not explain why the issue was
not raised on appeal, when he was represented by Substitute Counsel and also

could himself have raised the issue directly to the Delaware Supreme Court.

 

10 D.i. 84 at 3.

11. On the other hand, Naughton’s claim of ineffective assistance of
counsel could not be raised at trial or on direct appeal from his conviction.21
Naughton’s Rule 61 Motion timely was filed and therefore the Court properly may
consider the merits of his claim that Trial Counsel was ineffective.

B. Naughton’s claims of ineffective assistance of counsel

12. Naughton raises two bases that he argues support his contention that
Trial Counsel was ineffective: (1) Trial Counsel “blatantly eired” in closing
remarks, thereby “prejudicing the jury [and] not following [the] judge’s
instructions”; and (2) Trial Counsel suppressed “favorable evidence.”

13. To prevail on a claim for ineffective assistance of counsel, a defendant
must establish both that counsel’s representation fell below an objective standard
of reasonableness and that there is a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.22 There is a strong
presumption that counsel’s representation was reasonable.23 Accordingly, a
defendant must make specific allegations of actual prejudice and substantiate them;
vague allegations or conclusory statements will not suffice.24

14. Naughton first argues that Trial Counsel’s reference during closing

arguments to a portion of the letter that had been redacted was a blatant error.

 

21 State v. Evan-Mayes, 2016 wL 4502303, at *2 (Dei. Super. Aug. 25, 2016).
22 Smckland v. Washmg¢on, 466 U.s. 668, 687-88 (1984).

23 W»-igm v. Smn.», 671 A.2d1353, 1356(i)e1. 1996).

24 !d.; Monroe v. S!afe, 2015 WL 1407856, at *5 (Del. Mar. 25, 2015).

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Although the State argues Trial Counsel may have referred to that material for
strategic reasons, a review of the record indicates it was an unintended error on
counsel’s part.25 Arguably, that error meets the first element of the Strickland test.
Naughton has not shown, however, that there is a reasonable probability that, but
for the error, the result of the proceeding would have been different The trial
judge immediately instructed the jury to disregard the statement. Moreover, there
Was significant evidence of Naughton’s guilt through his own testimony; Naughton
acknowledged at trial that he signed and received the bond conditions, that he
wrote the letter, and that, through the letter, he was “asking or telling Melissa to
speak to [the alleged victim].” For those reasons, Naughton has not shown that, in
the absence of Trial Counsel’s error, the jury would not have convicted him.

15. Naughton also argues that Trial Counsel was ineffective by
suppressing favorable evidence. The entirety of Naughton’s argument is that Trial
Counsel “rehlsed to even attempt to have ‘one specific piece of evidence’ admitted
to trial, that would have proven [Melissa] perjured herself.”26 Although both
Substitute Counsel and the State indicated in their responses that they cannot

identify to what evidence Naughton refers, Naughton did not file any supplemental

 

25 Triai Tr. 98.
26 D.i. 84 at 3.

explanation.27 Naughton’s vague reference to evidence that Melissa perjured
herself, without any specific information regarding the evidence or whether Trial
Counsel was aware of it, is not sufficient to support a finding of ineffective

assistance of counsel.

NOW, THEREFORE, for the foregoing reasons, IT IS ORDERED that

David G. Naughton’s Motion for Post-Conviction Relief is DENIED.

@lm`/).M

Abié\ail M. LeGrow,O.ludge

Original to Prothonotary

cc: Eric H. Zubrow, Deputy Attorney General
Patrick J. Collins, Esquire
David Naughton (SBI 00141362)

 

27 See D.I. 87 (“Def`endant shall have 30 days after service of the State’s and trial counsel’s
submissions, in which to file the reply contemplated by Rule 61 (f)(3) and (g)(3).”).

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