IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

Case ID No.: 1204()()2559

KEVIN L. WILLIAMS,

Defendant.
MEMORANDUM OPINION & ORDER

Submitted: March 26, 2018
Decided: June 29, 2018

Upon Consideration of the Commissioner ’s Report and Recommendation on
Defena'ant ’S Motion for Postconviction Relief,

ADOPTED.

Upon Consideration of Defendant ’s Appealfrom the Commissioner’$
Report and Recommendation on Defena'ant ’s Motionfor Postconviction Relief,

DENIED.

Eric H. Zubrow, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attomeyfor the State.

Natalie S. Woloshin, Esquire, Woloshin, Lynch & Associates, P.A., Wilmington,
Delaware. Attorneyfor the Defendant.

MEDINILLA, J.

INTRODUCTION

Defendant Kevin L. Williams (“Defcndant”) filed an Amended Motion for
Postconviction Relief under Delaware Superior Court Criminal Rule 61. He argues
that his trial counsel Was ineffective because he failed to file a Bill of Particulars and
failed to object to the State’s Motion to Amend the Re-Indictment. As to both
contentions, Defendant maintains that counsel’s alleged deficiencies resulted in
violations of Defendant’s Sixth Amendment and Due Process rights. After
considering the multiple submissions associated with Defendant’s Amended
Motion, Defendant’s Appeal of the Commissioner’s Report, and the record in this
case, the Court ADOPTS the Commissioner’s Report and DENIES Defendant’s
Appeal.

FACTUAL AND PROCEDURAL BACKGROUND
F actual Background1

On November 10, 2011, Michelle Smith2 brought her two daughters, Jean and
Ava Smith, to speak to the Delaware State Police to report that Defendant had
repeatedly sexually assaulted her daughters over the span of many years, throughout

their childhood. The alleged victims are also Defendant’S biological daughters

 

1 The Court’s recitation is based on the testimony of Defendant’s trial counsel and/or exhibits
presented at the evidentiary hearing on May 31, 2017 before Commissioner Manning and on his
Report dated October 30, 2017.

2 Pseudonyms have been used throughout this case to protect the privacy of the victims and their
mother.

Both girls were interviewed by the police, who documented the interviews in police
reports. On December 12, 2011, both girls were additionally interviewed at the
Child Advocacy Center (“CAC”).

The eldest_then aged seventeen-is Jean, who reported that her first memory
of a sexual assault took place when she was approximately eight years of age, in
third grade. She recalled being on the couch at her Aunt’s house on Fourth Street in
Wilmington and fell asleep on Defendant’s stomach/chest, as she would often do as
a young child. On this occasion, she woke up to Defendant rubbing his private part
(penis) against her private part (vagina).3 J can reported that Defendant had unzipped
his pants and had pulled her underwear off to the side.4 She explained that Defendant
told her on their walk back home, “that’s how everybody learns how to have sex.”5

Although Jean reported this specific sexual incident, she disclosed that similar
sexual assaults or encounters “happened all the time.”6 Defendant would regularly
enter her bedroom during the night, kiss her neck, and rub his private part on her

private part.7 Jean reported that once she became older, it became “out of control.”8

 

3 Evidentiary Hr’g Ex. at Bl77.

41d.atB177-B178.
5 Id. at B178.
6 Id. at B179.
71a atBiso-Bisi.

8la'. atBlSl.

Jean described how Defendant would take off his clothes, touch her chest and
buttocks with his hands, and ejaculate on her stomach.9 Jean further recalled an
incident in the kitchen of her home where Defendant forced her to touch his penis.
She reported that this incident made her sick and that she had to run to the bathroom
to throw up.10

The younger child, Ava, spoke to law enforcement when she was sixteen years
old and divulged that Defendant began engaging in sexual acts with her when she
was in seventh grade. She reported that one evening, after Defendant had chastised
her for spending time with a girlfriend, he went in to her bedroom, locked the door,
climbed on top of her, and tried to kiss her neck. However, Defendant heard Ava’s
mother coming down the stairs and jumped away before Ava’s mother entered the
room.ll

Ava reported that she then had minimal contact with Defendant for
approximately one year. However, Defendant repeatedly called her and requested
that she go to the mall and have dinner with him. She complied On one occasion,
after they went shopping, Ava recalled an incident when they were walking home

through Brandywine Park. She described in detail how Defendant pushed her on to

 

91d. at 13183_13186.
101d.at13187_13188.

11 Id. atB143-B144.

a picnic table, pulled his pants down, and attempted to sexually assault her. In the
police reports and during the trial, this event became known as the “Monkey Hill”
incident due to the location of the alleged assault.12 Ava also described a separate
incident when she was showering and Defendant made her touch his erect penis,
while he stood outside the shower.13

On November 19, 2012, Defendant was indicted by a Grand Jury on nineteen
counts of Unlawful Sexual Contact in the First Degree (“USC”) and one count of
Continuous Sexual Abuse of a Child.14 As noted by the Commissioner, each of the
nineteen counts of USC was worded identically and used the same date range:
August 1, 2002 to June 30, 2003. All of the indicted counts concerned the same
alleged child victim, J can Smith.

Defendant was then re-indicted on March 4, 2013.15 The re-indictment
included the identical language for each count, but two of the counts of USC were
changed to denote the second victim, Ava Smith. The date range for all charges,
with the exception of the count for Continuous Sexual Abuse of a Child, were

modified to cover different periods of time between August l, 2002 and June 30,

 

12 Id. at13036, B151_13155.

131d.atB161_Bi63.
14 See D.I. #2 (Nov. 19, 2012).

15 See D.I. #14 (Mar. 4, 2013).

2008.16 On May 31, 2013, the State again sought to make changes and filed a Motion
to Amend the re-indictment.17 The motion sought to amend the dates of counts 18
and 19.18 The Motion to Amend was granted on June 10, 2013, without objection
by trial counsel.19

Prior to trial, the State produced discovery to include the Affidavit of Probable
Cause, redacted police reports, redacted Division of Family Services (“DFS”)
records, and the recorded CAC interviews20 Although the names throughout the
reports were also redacted, trial counsel testified that he was able to identify the

alleged victims with the assistance of Defendant.21 On June ll, 2013, prior to the

 

16 The re-indictment listed the following dates for each count: Count l - August l, 2002 through
June 30, 2003; Count 2 - August 1, 2004 through October 31, 2004; Count 3 - August 1, 2004
through January 31, 2005; Count 4 - August l, 2005 through April 30, 2005; Count 5 - May 1,
2005 through July 31, 2005; Count 6 ~ August 1, 2005 through October 31, 2005; Count 7 - August
1, 2005 through January 31, 2006; Count 8 ~ February l, 2006 through April 31, 2006; Count 9 -
May 1, 2006 through July 31, 2006; Count 10 ~ August 1, 2006 through October 31, 2006; Count
ll ~ November l, 2006 through January 31, 2007; Count 12 - February 1, 2007 through April 30,
2007; Count 13 - May l, 2007 through July 31, 2007; Count 14 ~ August 1, 2007 through October
31, 2007; Count 15 - August l, 2002 through January 31, 2008; Count 16 - February l, 2008
through April 30, 2008; Count 17 - May 1, 2008 through July 31, 2008; Count 18 - August 1,
2007 through June 30, 2008; and Count 19 - August l, 2007 through June 30, 2008.

11 See D.I. #25 (May 31, 2013).

18 The motion sought to amend the dates of count 18 from August 1, 2007 through June 30, 2008
to become May l, 2006 through September 30, 2006 and the dates of count 19 from August l,
2007 through June 30, 2008 to become September 1, 2009 through June 30, 2010.

19 S@e D.I.#26(June10,2013).

20 Copies of the CAC interviews were sent to trial counsel on June 6, 2013 and marked as
“received” by his office on June 10, 2013. Evidentiary Hr’ g Ex. at B118. Trial counsel also
received twenty-three pages of redacted DFS records at the same time.

21 Evidentiary Hr’g Tr. at 25.

start of trial, the State entered a nolle prosequi on all but six counts of the amended
re-indictment. The State therefore proceeded to trial on five counts of USC, three
as to Jean Smith and two as to Ava Smith, and one count of Continuous Sexual
Abuse of a Child relating solely to J can Smith.

A jury trial was held from June 11 through June 14, 2013. Jean and Ava
testified accordingly, and the Smith girls’ allegations constituted the entirety of
evidence presented at trial. Since both daughters were close in age and name, the
evidence introduced to support the five charges were compartmentalized into named
“incidents” in order to give the jury both the proper timeframes of when the alleged
offenses were said to occur, but also to properly apply the named incident to the
respective alleged victim/daughter. Defendant testified in his defense. He did not
dispute that the events described by the girls were accurate, but rather flatly denied
that any sexual contact occurred when he was with his daughters. The jury returned
verdicts of guilty against Defendant on all counts.

On September 20, 2013, this Court sentenced Defendant to twenty-three years
of unsuspended Level V supervision, followed by various levels of probation.
Defendant’s conviction was subsequently affirmed by the Delaware Supremc Court

on August 21, 2014.22

 

22 See Williams v. Szaze, 100 A.3d 1022, 2014 wL 4179121 (Dei. Aug. 21, 2014) (TABLE).

Procedural Background

Defendant filed his pro se Motion for Postconviction Relief on January 12,
2015.23 On February 2, 2015, the Court sent a request for the Office of Conflicts
Counsel to appoint counsel to represent Defendant on his pending motion.24 The
Court then referred the Motion for Postconviction Relief to a Superior Court
Commissioner

After Defendant obtained appointed counsel for his Motion, he filed an
Amended Motion for Postconviction Relief on April 18, 2016.25 Defendant’s trial
counsel submitted an affidavit responding to the allegations26 The State responded
to the Amended Motion on June 28, 2016.27 Defendant filed a reply to the State’s
Response on August l, 2016.28 An evidentiary hearing was held on May 31, 2017,
after which both parties also filed supplemental briefing at the Commissioner’s

request.29

 

23 See D.I. #43 (Jan. 12, 2015).

24 See D.I. #45 (Feb. 2, 2015). Later, Defendant filed a pro se Motion for Appointment of Counsel.
See D.I. #46 (Apr. 13, 2015). The Court considered it moot as the Court had previously requested
the appointment of counsel from the Office of Conflict Counsel. See D.I. #47 (Apr. 30, 2015).

25 See D.I. #59 (Apr. 18, 2016) [hereinafter Am. Mot.]

26 See D.I. #61 (June 9, 2016).

21 See D.I. #63 (June 30, 2016).

28 See D.I. #67 (Aug. 1, 2016).

29 see D.I.#74(Ju1y 20,2017);13.1.#75 (Aug. 18, 2017).
7

On October 30, 2017, the Commissioner filed his Report recommending
Defendant’s Amended Motion be denied, 30 after conducting the appropriate analysis
of Defendant’s two claims under Strickland v. Washington.31 The Commissioner
determined that counsel’s actions “did not prejudice [Defendant] in the end,”32 and
that he was “not convinced that there is a reasonable probability that the outcome
might have changed had trial counsel done anything differently.”33

On November 9, 2017, Defendant filed his Appeal from the Commissioner’s
Findings of Fact and Recommendations.34 The State responded to Defendant’s
Appeal on March 12, 2018.35 On March 26, 2018, Defendant filed a reply.36 After
considering all of the filings in Defendant’s Motion and the record in this case, the

Motion and Defendant’s Appeal from the Commissioner’s Report is ripe for

decision.

 

30 See Comm’r Report.
31466 U.s. 668 (1984).

32 Comm’r Report at 17.
33 Id.

34 See D.I. #77 (Nov. 9, 2017) [hereinafter Appeal].
35 See D.I. #80 (Mar. 12, 2018) [hereinafter State’s Resp.].

36 See D.I. #82 (Mar. 26, 2018) [hereinafter Reply].

8

STANDARD OF REVIEW

Rule 62 of the Delaware Superior Court Criminal Rules outlines the procedure
for the Commissioner’s review of motions.37 Under Rule 62(a)(5), the
Commissioner is permitted to conduct hearings into the motion and “submit to a
judge of the Court proposed findings of fact and recommendations for the
disposition, by a judge,” of any such motion.38 Upon receiving timely objections to
the Commissioner’s recommendations, the Court must make a de novo review of
“those portions of the report” to which an objection is made.39 The judge “may
accept, reject, or modify, in whole or in part, the findings of fact or recommendations
made by the Commissioner. Having received timely objections to the
Commissioner’s Report, this Court now conducts its de novo review.

DISCUSSION

The right to counsel, enshrined in the Sixth Amendment of the United States

Constitution and Article I, Section 7 of the Delaware Constitution, contains a

correlative right to effective assistance of counsel.40 This right extends to all “critical

 

37 See DEL. SUPER. CT. CRIM. R. 62(a).
38 See Rule 62(a)(5).
39 Ruie 62(a)(5)(iv).

40 U.S. CONST. amend. VI; DEL. CONST. art. I, § 7. See, e.g., Strickland v. Washington, 466 U.S.
668, 686 (1984) (Clting MCMGI’ZH v. RiCthFdSm’l, 397 U.S. 759, 771 1114 (1970)).

stages” of the criminal case.41 In the postconviction setting, this right has been
molded through generations of litigation involving a defendant’s claim of ineffective
assistance of counsel. The seminal case on such claims is Strickland v.
Washington.42 This case and its progeny established a two-part test: a defendant
must show that, (1) “counsel's performance was objectively unreasonable,” and (2)
“the defendant was prejudiced as a result.”43 The nuances of this test have been
exhaustively distilled since Strickland was decided:

Under the first prong [of Stricklana’], judicial scrutiny is ‘highly
differential.’ Courts must ignore the ‘distorting effects of hindsight’
and proceed with a ‘strong presumption’ that counsel'S conduct was
reasonable The Strickland court explained that ‘a court deciding an
actual ineffectiveness claim must judge the reasonableness of counsel's
challenged conduct on the facts of the particular case, viewed as of the
time of counsel's conduct.’

Under the second prong, ‘[i]t is not enough for the defendant to
show that the errors had some conceivable effect on the outcome of the
proceeding.’ In other words, ‘not every error that conceivably could
have influenced the outcome undermines the reliability of the result of
the proceeding.’ ‘Some errors will have a pervasive effect . . . , and
some will have had an isolated, trivial effect.’ The movant must show
‘that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different.’ ‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ The court must consider the
‘totality of the circumstances,’ and ‘must ask if the [movant] has met

 

41 See Lajler v. Cooper, 566 U.s. 156, 165 (2012).
42 466 U.s. 668 (1984).

43 Sykes v. S¢aze, 147 A.3d 201, 211 (Del. 2015) (citing Szrickland, 466 U.s. at 694).

10

the burden of showing that the decision reached would reasonably
likely have been different absent the errors.’44

Defendant’s Amended Motion focuses solely on his trial counsel’s failure to
file or object in relation to the indictment, re-indictment, and the amended re-
indictment. Defendant’s Amended Motion claims two bases for relief under
Strickland:

Claim 1: Trial Counsel was ineffective in failing to file a bill of

particulars in Mr. Williams’ case, which resulted in a violation of Mr.

Williams’ Sixth Amendment and Due Process rights.45

Claim 21 Trial Counsel was ineffective in failing to object to the motion

to amend the indictment in violation of Mr. Williams’ Sixth

Amendment and Due Process rights.46

As stated above, the Commissioner rejected both of Defendant’s claims under
the second prong of Strickland_the “prejudice” prong. The Court does not deem it
necessary to undergo a full first prong analysis under Stricklana' where the focus is
Defendant asserting substantial prejudice However, where trial counsel expressly
testified that filing a Bill of Particulars would not have assisted him with the defense

and he made a strategic decision not to do so, any failure to file was not objectively

unreasonable, satisfying the first prong under Strickland. For the reasons stated

 

44 Id. at 211-12 (internal footnotes omitted) (quoting Stricklana', 466 U.S. at 689-90, 693-96;
Albury v. State, 551 A.2d 53, 58 (Del. 1988)).

45 Am. Mot. at 13.

46 Id. at 19.
ll

below, this Court agrees with the Commissioner’s findings of fact and
recommendations
Claim 1 - Bill of Particulars

A Bill of Particulars provides supplemental information when an indictment
does not inform the defendant of the facts and charges against him to sufficiently
enable the defendant to prepare for his defense47 lt should “serve[] to protect a
defendant against unfair surprise at trial and prevent subsequent prosecutions for an
insufficiently described offense.”48 However, there are limitations While a Bill of
Particulars supplements or clarifies the allegations against the defendant, “it is not
meant to compel the State to disclose the theory of the case or evidentiary
information.”49 In other words, it does not serve as an alternative discovery device.

ln his appeal, Defendant objects to the Commissioner’s determination that
Dobson v. State50 and Luttrell v. State$1 could be distinguished from Defendant’s

case. Defendant contends that these Delaware Supremc Court cases decided after

 

47 State v. Block, 2000 WL 706794, at *1 (Del. Super. Ct. Feb. 11, 2000).

48 Id. (citing Lovett v. State, 516 A.2d 455, 467 (Del. 1986)); Um`ted States v. Cantu, 557 F.2d
1173, 1178 (5th Cir. 1977), cert. denied, 434 U.S. 106 (1978)).

49 Id. (citing United States v. Hajecate, 683 F.2d 894, 897 (5th Cir. 1982); State v. Strughola', 973
S.W.2d 876, 890 (Mo. Ct. App. 1998)).

36 80 A.3d 959, 2013 wL 5918409(D61. oct 31, 2013) (TABLE).

31 97 A.3d 70 (Del. 2014).

12

Defendant’s trial are factually similar on the issue of failing to file a Bill of
Particulars, and that their holdings should have been binding authority requiring
post-conviction relief in this case.

The Court agrees with the Commissioner that Dobson and Luttrell are
distinguishable from Defendant’s case. Without repeating the Commissioner’s
extensive factual analysis, certain aspects of each case should be highlighted In
Dobson, the Supremc Court found that the defendant Was substantially prejudiced
by the defense counsel’s failure to object to the State’s presentation of testimony
from the child victim concerning two additional, uncharged incidents of rape.52
Compounding the problem was that defense counsel in Dobson did not know the
specific factual allegations that formed the basis of each of the six identically worded
counts of Rape in the Second degree, each covering a period of one year.53

Unlike in Dobson, here there were no additional incidents revealed to the jury
that had not been previously disclosed to Defendant and his trial counsel.54
However, the Commissioner found_and this Court agrees_that these “incidents”

were not new or separate, but rather consistent with what Jean Smith had previously

 

32 Dobs@n, 2013 wL 5918409, at *3.

331d. at *1.

34 Id. at *3.

13

described to the police or during the CAC interview, or both.55 For example, the
Commissioner determined that any details related to what was referenced at trial as
the “Taron Hackett incident” were merely to provide additional details regarding the
timeframe of one of the already known five charges Any reference to Taron Hackett
was only to provide a timeframe regarding the ongoing sexual abuse described at the
CAC interview; Defendant began entering her room after Defendant met her
boyfriend, Taron Hackett, for the first time. These details related to the charged
incidents and were not new incidents that Jean testified to at trial.56 Rather,
additional facts came out through Jean’s trial testimony that provided further context
for acts which were previously disclosed.57 The evidence presented at trial provided
only more detailed background information or what the Commissioner described as
“temporal reference points” for previously disclosed-and indicted_incidents.58
Further, unlike in Dobson, trial counsel was aware of the five incidents and

allegations made against Defendant.59

 

55 Comm’r Report at 10-12.
36 Id.

57 Ia’.

33 Id.

32 Id. at 12.

14

Likewise, Luttrell is distinguishable from the facts of this case. There, the
Supreme Court determined that reversal and a new trial were warranted where the
trial court denied counsel’s request for a Bill of Particulars and the defendant was
not provided adequate notice of the charges against him.60 Indeed, the Supreme
Court found that neither defense counsel nor the jury were aware of what conduct
constituted which charge on the indictment.61 Although Defendant here takes issue
with the timeframe of when discovery was turned over to trial counsel, it is
undisputed on this record that trial counsel had substantially more information
available to him than counsel in Luttrell.62

Had the State elected to proceed to trial on all nineteen USC counts in the re-
indictment, then arguably the facts could be considered more comparable to those of
Luttrell, as trial counsel may not have been aware of underlying facts or evidence
that supported each of those counts However, here, it is clear that through

communications with the State, trial counsel was aware that the State would only be

 

66 Lunrell v. Szaze, 97 A.3d 70, 77-78 (De1. 2014).

61 Id. at 77 (describing how “the State never explained to the jury which factual allegations aligned
with which count of the indictment” and how the State admitted that information in the indictment,
the probable cause affidavit, and recitation of the charges during the State’s closing argument
“didn’t line up.”).

62 Ia'. at 77-78 (describing how “neither the indictment, nor any of the underlying materials
[defendant] received provided sufficient information for him to understand for what particular
conduct he was being prosecuted.”). Further, any information that the defendant did receive in
Luttrell contradicted other information and the dates contained in the indictment Id. at 73-74.

15

going forward on five USC counts and well aware of the evidence expected to be

introduced to support each of the five incidents63 As highlighted at the evidentiary

hearing,

Commissioner: So, and 1 don’t want to put words in your mouth, but it
sounds like what you’re telling me is the DFS records you received the
day before trial didn’t help you figure out ultimately which specific
incidents went to the five charges that actually went to trial?

Trial Counsel: Well, 1 knew which charges were, the charges -- there
were five specific incidents that 1 was aware of that we were defending
against . . . . Some of these had been identified even with the initial
police reports Like 1 said, the girl down the street incident, the Monkey
Hill incident, and then the falling asleep on the chest incident. They
were pretty apparent from the beginning that these were instances And
to me, it would seem to be more important to discuss to discuss those
specific incidences with Mr. Williams during our discussion. 1t wasn’t
like, “Gosh, if this happened in 2013, 1 wasn’t around for that.”64

Further, trial counsel made a strategic decision not to file a Bill of Particulars:

1 was dealing with him at arm’s length. Sometimes there’s a couple
ways to go about doing things And 1 had never gotten really any
Satisfaction from filing a Bill of Particulars other than having them
denied. So 1 felt that 1 was making more headway by discussing things
with [the State]. Because 1 was getting some answers, 1 was getting
some responses And the number of charges were ultimately . . .
reduced significantly.65

 

63 Evidentiary Hr’g Tr. at 59:01-22; 72:13-73:04; 80:13-83:13.
64 Id. 6158;18»59:19.

63 1a 6180;01-13.

16

Additionally_unlike in Luttrell_the State provided a full explanation to the
jury regarding what incidents corresponded to each charge in the indictment.66 1f
anything, identifying the time frame of the events such as the “l\/Ionkey Hill” incident
allowed the girls to recall the events as they remembered them and provide the jury
with the appropriate timeframes for each of the five USC charges

Furtherrnore, as for any claim that there was a failure on the part of the State
to disclose the identity of Taron Hackett and whether his name would have been
disclosed prior to trial if trial counsel had filed a Bill of Particulars, Defendant’s
Reply shows that any such prejudice is far attenuated from the act of filing. The Bill
of Particulars would not have yielded the information Defendant claims may have
been helpful to his defense. Trial counsel confirmed as much. The State is correct
that “[a] witness’ identity is not included in any 1ndictment, regardless of a Bill of
Particulars”67 and that the “[t]he State does not have a duty to disclose witness
identities where their testimony is not exculpatory.”68 Defendant therefore attempts
to clarify his position, but in doing so shows how far attenuated any prejudice would

be. Defendant clarifies that “while Taron Hackett’s name may not have been

 

66 Am. Mot. App’X at A164.

67 State’s Resp. at 11 4.

63 ld. (citing Liket v. State, 719 A.2d 935, 937 (Del. 1998)).

17

disclosed, trial counsel would have been put on notice of the existence of a witness
who may or may not have collaborated the victim’s testimony.”69

This argument shows how far afield Defendant must go to show even potential
prejudice. Defendant is no longer arguing that counsel’s failure to file a Bill of
Particulars prevented Defendant from obtaining the name of an additional witness-
information that he would not have obtained. Rather, Defendant argues that
clarifications and additional details about the incident in a Bill of Particulars could
have placed Defendant on notice to the potential existence of an additional witness
who may or may not have had any relevant information. This hypothetical argument
does not constitute a “reasonable probability” that the outcome of the trial would
have been different had trial counsel filed a Bill of Particulars.

Even assuming that trial counsel’s election not to file a Bill of Particulars had
fallen below “an objective standard of reasonableness,” the showing of prejudice
from this alleged deficiency is hypothetical, at best. Under Strickland, the burden

of proving prejudice rests on the defendant to show a “reasonable probability” that,

“but for counsel's unprofessional errors, the result of the proceeding would have

 

69 Reply at 11 2 (emphasis added).

18

been different.”70 “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”7l Defendant does not meet this burden.

Therefore, Defendant’s showing of prejudice under Strickland is insufficient
and, for the reasons stated above, the Court ADOPTS the Commissioner’s Report
as to this claim and DENIES Defendant’s Appeal.

Claim 2 - Not Objecting to the Motion to Amend the 1ndictment

Defendant’s second claim is that trial counsel’s failure to object to the Motion
to Amend the 1ndictment violated Strickland. Defendant objects to the
Commissioner’s determination, “which exclusively relied upon trial counsel’s
testimony.”72

As highlighted in the Commissioner’s Report, trial counsel testified that the
dates in the indictment had very little bearing, if any, on counsel’s defense strategy.
Trial counsel testified that he would have objected if he believed that the change in

dates had impaired his defense in any way.73 The Court agrees with the

Commissioner that a change in dates may have been significant had Defendant

 

70 Albury v. State, 551 A.2d 53, 58 (1988) (quoting Stricklana' v. Washington, 466 U.S. 668, 688,
694 (1984)).

71 Stricklana', 466 U.S. at 694.
72 Appeal at 11 5.

13 Evidentiary Hr’g Tr. at 104:23 -106;01.

19

offered a different strategy to his defense. For example, the dates would have been
critical if Defendant was preparing to present alibi witnesses at trial. Defendant did
not employ this strategy.

1nstead, Defendant did not dispute the underlying events of any of these
allegations denying only that anything sexual had ever occurred.74 Defendant
himself testified to that effect at trial. Ultimately, the jury chose to accept the
testimony of the Smith girls over his Any change related to the dates would
therefore have had no impact on the defense strategy.

Defendant argues that prejudice can be shown because “if trial counsel had
objected there is a probability that the Court would have denied the State’s motion
which was made on the eve of trial” and that therefore “the defense could have
prevailed on the charges based upon the State’s failure to charge the offenses
correctly.”75 This argument lacks merit.

Delaware Superior Court Criminal Rule 7(e) provides that “[t]he court may
permit an indictment . . . to be amended at any time before verdict or finding if no
additional or different offense is charged and if substantial rights of the defendant

are not prejudiced.”76 The rule is designed to protect a defendant’s right to notice of

 

14 Id. 6183:23-86;06.

73 Appeal at 11 5.

76 DEL. SUPER. CT. CRIM. R. 7(e).

20

the charges against him and against double jeopardy.77 Again, it bears repeating that
trial counsel had communicated with the prosecutor and knew of factual
underpinnings to each of the five USC charges that went forward to trial, and
Defendant’s arguments concerning the dates in the indictment had no bearing on the
formulation of his defense

The record also makes it clear that the State did not place the prior dates in
the re-indictment to mislead Defendant and trial counsel. Rather, these changes
reflect some of the difficulties of working with minor victims of sexual assault.78
Forcing the State to proceed to trial on dates in the indictment that it then knew were
inaccurate would be akin to the Court dismissing the indictment_an extreme
remedy, only appropriate for the most severe of constitutional violations.79 No
Constitutional foul existed here and such a remedy would have been inappropriate
Therefore, the reasonable probability is that this Court would have denied any

application for dismissal had it been made after the State properly made its

application to amend.

 

77 See Cojj’ielcl v. State, 794 A.2d 588, 593 (Del. 2002); Keller v. State, 425 A.2d 152, 155 (Del.
1981).

73 See e.g. Jeffrey H. Gallet & Maureen M. Finn, Corroboration of a Chila"s Sexual Abuse
Allegation with Behavioral Evidence, 25 AM. JURIS. PROOF OF FACTS 3D 189, at §§ 7, 9 (2018)
(describing common issues in prosecuting sexual abuse of a child, including victims’ delayed
reporting of alleged sexual abuse and trouble pinpointing when events occurred).

79 See Unitea' States v. Morrison, 449 U.S. 361, 365 (1981) (describing dismissal of an indictment
as “plainly inappropriate” in most cases, even for deliberate or extreme constitutional violations);
Bailey v. State, 521 A.2d 1069, 1086 (Del. 1987).

21

OCZ
CCZ

Defendant, again, fails to meet his burden to demonstrate prejudice under
Strickland for trial’s counsel decision not to object to the State’s leave to amend the
re-indictment. Therefore, for the reasons stated above, the Court ADOPTS the
Commissioner’s Report as to this claim and DENIES Defendant’s Appeal.

CONCLUSION

The Court has conducted a de novo review of Defendant’s Amended Motion
and his Appeal of the Commissioner’s Report. After this review, the Court
ADOPTS the Commissioner’s Report for the reasons stated above and in the
Commissioner’s Report. Defendant’s Amended Motion for Postconviction Relief is
DENIED. Consequently, Defendant’s Appeal from the Commissioner’s Findings

of Fact and Recommendations is DENIED.

 
 

 

IT IS SO ORDERED.
/ f
Vivran L. Medinilla
Judge
Prothonotary 77
Defendant

Department of Justice
Office of Defense Services
1nvestigative Services Office

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