IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE )
)
v. ) Cr. ID No. 090813580
)
EFRAIN RIVERA, )
)
Defendant. )
Date Submitted: April 8, 2015
Date Decided: July 9, 2015
MEMORANDUM OPINION
Christopher S. Koyste, Esquire, Attorney for Defendant.
Martin B. O’Connor, Deputy Attorney General, Department of Justice, Attorney
for the State of Delaware.
Rocanelli, J.
I. PROCEDURAL HISTORY
On May 18, 2010, a Superior Court jury found Defendant Efrain Rivera
guilty of one count of Rape in the First Degree; one count of Rape in the Second
Degree; one count of Menacing; one count of Assault in the Third Degree; two
counts of Terroristic Threatening; and one count of Endangering the Welfare of a
Child. Andrew J. Witherell, Esquire (“Trial Counsel”) represented Defendant at
trial. On July 23, 2010, the Trial Court sentenced Defendant to eighteen (18)
years at Level V, suspended after fifteen (15) years for three years at Level IV,
suspended after six months for two years at Level III. On July 25, 2011, the
Delaware Supreme Court affirmed Defendant’s conviction. 1
On October 22, 2012, Defendant filed a Motion for Appointment of Counsel
to pursue postconviction relief. On December 11, 2012, the Court appointed
Christopher S. Koyste, Esquire (“Rule 61 Counsel”). After motion practice
regarding discovery, 2 Defendant filed the pending Motion for Postconviction
Relief (“PCR Motion”).
II. FACTS PRESENTED AT TRIAL SUPPORTING CONVICTION
1
Rivera v. State, 26 A.3d 214 (Del. 2011).
2
State v. Rivera, 2014 WL 2538678 (Del. Super. June 4, 2014).
1
On August 14, 2009, Defendant was at the residence of Juan Pacheco.
Cariely Rosado, Pacheco’s niece, also lived at the residence with Rosado’s infant
child. Defendant left the residence when Pacheco was going to bed. Rosado was
asleep in her bedroom on the first floor, which Rosado shared with her infant child.
Later, Defendant returned to the residence and entered Rosado’s bedroom.
Defendant held a knife to Rosado’s throat and sexually assaulted Rosado while
Rosado’s infant child was in the bed with Rosado.
Defendant left the residence and Rosado ran upstairs to alert Pacheco, who
then called the police. Rosado, Pacheco, and Defendant were all interviewed by
the police following the report. In addition, Rosado was examined by a nurse who
testified as a witness at trial.
III. DEFENSE STRATEGY AT TRIAL
Trial Counsel’s defense was to deny any relationship between Defendant
and Rosado. This strategy was consistent with Defendant’s statements to the
police when he was interviewed at the time of the criminal report.
IV. DEFENDANT’S PCR MOTION THEORY OF AN AFFAIR-DEFENSE
The central gravamen of Defendant’s PCR Motion claims that Defendant
and Rosado were having a consensual affair and that Trial Counsel was ineffective
for failing to present evidence consistent with this defense theory. However, as
discussed in connection with each of the claims, presentation of such a defense was
2
inconsistent with the evidence to the contrary and there was no evidence to support
an affair-defense other than Defendant’s own testimony. The testimony of Rosado,
the testimony of the nurse who examined Rosado after the assault, and other
physical evidence supported a finding that the sexual intercourse was not
consensual. Other than Defendant’s own proffered testimony, there is no evidence
to support the version of events offered by Defendant in his PCR Motion.
For example, Defendant now claims that on the night of the assault he and
Rosado had a fight and that Rosado made up the rape when Pacheco heard the
argument in order to hide their affair. However, Pacheco testified that he only
woke up when Rosado went upstairs to tell him about the rape. 3 At no point did
Pacheco testify that he heard an argument between Defendant and Rosado.
Moreover, Defendant has not presented any support for his recent claim that
he even told Trial Counsel before the trial about the claimed affair.4 As discussed
below, even if Defendant had raised with Trial Counsel an affair-defense at the
time of trial, it was professionally reasonable to reject an affair-defense as a trial
strategy.
V. ASSERTED GROUNDS FOR POSTCONVICTION RELIEF
3
Trial Tr. at 55, May 11, 2010.
4
Trial Counsel’s affidavit does not suggest that Defendant ever informed Trial Counsel of his
alleged affair with Rosado. See Trial Counsel Aff., Oct. 20, 2014.
3
Defendant asserts six grounds for relief in his PCR Motion: (1) ineffective
assistance of Trial Counsel in failing to appeal the Trial Court’s ruling that
Rosado’s Section 3507 statement was admissible; (2) ineffective assistance of Trial
Counsel for failing to properly advise Defendant of his right to testify; (3)
ineffective assistance of Trial Counsel for failing to adequately cross examine
Pacheco; (4) ineffective assistance of Trial Counsel for failing to investigate the
contents of Defendant’s cell phone; (5) multiple Brady violations including (a) that
the State failed to disclose information in relation to Pacheco and a Wilmington
Police Officer involved in the police interviews and (b) that the State failed to
disclose information regarding any deal between Rosado and the State; and (6)
cumulative due process error undermining Defendant’s right to a fair trial.
VI. PROCEDURAL BARS TO POSTCONVICTION RELIEF
Before addressing the merits of a motion for postconviction relief, this Court
must consider the procedural requirements of Rule 61(i). 5 Rule 61(i)(1) requires a
motion for postconviction relief be filed within one year after the judgment of
conviction is final. The Supreme Court affirmed Defendant’s conviction and
sentence on July 25, 2011. Defendant did not seek appointment of counsel to
pursue postconviction relief until October 22, 2012, after the one-year time limit
under Rule 61(i)(1) had already lapsed. Even assigning the filing date to
5
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
4
Defendant’s first inquiry, Defendant’s PCR Motion does not satisfy the procedural
time bar of Rule 61(i)(1) and, therefore, his claims are time-barred.
In order to avoid the procedural time bar of Rule 61(i)(1), Defendant must
satisfy the requirements of Rule 61(i)(5), which was amended on June 4, 2014.
Pursuant to the pre-amendment version of Rule 61(i)(5), procedural bars to relief
“shall not apply to a claim that the court lacked jurisdiction or to a colorable claim
that there was a miscarriage of justice because of a constitutional violation that
undermined the fundamental legality, reliability, or fairness of the proceedings
leading to the judgment of conviction.” 6 The June 4, 2014 amendments to Rule 61
eliminated this constitutionally based fundamental fairness exception.7 Pursuant to
the post-amendment version of Rule 61(i)(5), procedural bars “shall not apply
either to a claim that the court lacked jurisdiction or to a claim that satisfies the
pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this
rule.” 8 Defendant’s PCR Motion does not qualify for the Rule 61(i)(5) exception
to the procedural bars under the pre-amendment 9 or post-amendment 10 version of
6
Super. Ct. Crim. R. 61(i)(5) (pre-June 4, 2014 amendment).
7
See Gibbs v. State, 2015 WL 3843378, at *2 n.23 (Del. June 18, 2015) (discussing Rule
61(d)(2)).
8
Super. Ct. Crim. R. 61(i)(5).
9
Defendant’s PCR Motion does not satisfy the fundamental fairness exception, which is a
narrow exception applied in limited circumstances. Younger v. State, 580 A.2d 552, 555 (Del.
1990).
10
Defendant’s PCR Motion does not claim that the court lacked jurisdiction nor does it “plead
with particularity that new evidence exists that creates a strong inference that the movant is
actually innocent[;]” or “plead with particularity a claim that a new rule of constitutional law,
5
Rule 61. Nevertheless, even if Defendant’s PCR Motion was procedurally sound,
Defendant’s claims fail on the merits for the reasons that follow.
VII. DEFENDANT’S CLAIMS OF INEFFECTIVE ASSISTANCE OF
COUNSEL
Defendant raises four claims of ineffective assistance of counsel. 11 Claims
of ineffective assistance of counsel are governed by the two-prong Strickland
test.12 The movant must demonstrate (1) that counsel’s representation fell below
an objective standard of reasonableness, 13 and (2) that counsel’s errors prejudiced
defendant.14 In considering the first prong, there is a strong presumption that
counsel’s actions were professionally reasonable.15 Additionally, judicial scrutiny
should be highly deferential to counsel’s decisions on trial strategy. 16 In
considering the second prong, 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.” 17 Failure to prove either prong renders the
claim insufficient.18
made retroactive . . . [and] appli[cable] to the movant’s case and renders the conviction . . .
invalid.” Super Ct. Crim. Rule 61(d)(2)(i), (ii).
11
Defendant’s claims of ineffective assistance of counsel are not subject to the procedural bar of
Rule 61(i)(3) because ineffective claims are meant to be raised in the postconviction setting. See
Duross v. State, 494 A.2d 1265, 1267 (Del. 1985).
12
Strickland v. Washington, 466 U.S. 668 (1984).
13
Id. at 688.
14
Id. at 694.
15
Id. at 688.
16
Id. at 689.
17
Id. at 694.
18
Id. at 700.
6
A. Failure to Appeal the Admission of Rosado’s Section 3507 Statement
Defendant claims that Trial Counsel was ineffective for not appealing the
admission of Rosado’s statement to the police into evidence at trial. The
admission of Rosado’s statement is governed by Section 3507 of Title 11 which
provides that “the voluntary out-of-court prior statement of a witness who is
present and subject to cross examination may be used as affirmative evidence with
substantive independent testimonial value.” 19 Proper admission of a voluntary out-
of-court statement under Section 3507 requires the declarant to testify as to the
events and the truthfulness of the statement on direct examination. 20
Defendant argues that Rosado’s statement was improperly admitted because
Rosado never testified as to its truthfulness. Further, despite objecting at the time,
Defendant argues that Trial Counsel was ineffective for not appealing the improper
admission. Defendant’s claim does not satisfy the first prong of Strickland because
Defendant cannot overcome the strong presumption that Trial Counsel’s actions
were professionally reasonable. Contrary to the claim in Defendant’s PCR Motion,
Trial Counsel made an effort to exploit Rosado’s statement during cross-
examination as a method of challenging Rosado’s credibility and to address
19
11 Del. C. § 3507(a).
20
See Wyche v. State, 113 A.3d 162, 165 (Del. 2015) (discussing the voluntariness of § 3507
statements); Ray v. State, 587 A.2d 439, 443 (Del. 1991) (requiring the declarant of the § 3507
statement testify as to the truthfulness of the statement).
7
inconsistencies between Rosado’s statement and her testimony at trial.21
Additionally, during cross-examination Rosado stated, “I’m going to try and keep
[to] the truth as much as possible and say everything I thought that happened that
day.” 22 Therefore, despite Trial Counsel’s initial objection to the admission of
Rosado’s statement, Rosado did testify as to the truthfulness of events discussed in
her statement.
Once Rosado testified about the events and the truthfulness of her statement,
it was reasonable for Trial Counsel to conclude that the Section 3507 violation was
one of form and not substance or that it was more technical in nature. The
Delaware Supreme Court has held that such technical violations do not overcome
the presumption of professional reasonableness. 23 Therefore, the Court finds that
Trial Counsel’s decision not to appeal the admission of Rosado’s statement into
evidence was reasonable under the prevailing professional norms. 24
21
Trial Tr. at 44–45, May 12, 2010.
22
Id. at 30.
23
See Hoskins v. State, 102 A.3d 724, 735 (Del. 2014) (stating that the awkward phrasing of the
§ 3507 foundation was “insufficient grounds…to overcome the presumption of trial counsel’s
reasonableness.”); Jackson v. State, 643 A.2d 1360 (Del. 1994) (finding that the “technical non-
compliance with the foundational requirements” was harmless).
24
See e.g., Turner v. State, 5 A.3d 612, 616–17 (Del. 2010) (providing that § 3507 statements
“must be offered into evidence no later than at the conclusion of direct examination of the
declarant” to avoid placing “any strategic burden on the non-offering party.”) (quoting Smith v.
State, 669 A.2d 1, 8 (Del. 1995)). In Turner, the State did not offer the declarant’s Section 3507
statement into evidence until defense counsel began cross-examination without objection from
defense counsel. The Turner Court concluded that, despite trial counsel’s failure to object, the
defendant could not establish a claim of ineffective assistance of counsel because defense
counsel had asked only four questions on cross-examination before the State offered the
statement into evidence and, therefore, defense counsel was not subject to strategic burden. Id.
8
Moreover, even assuming that Trial Counsel’s performance did fall below a
reasonable professional standard, Defendant is unable to demonstrate prejudice.
Defendant argues that the admission of Rosado’s statement was prejudicial
because Rosado offered evidence of penetration, which Rosado did not state in her
trial testimony. However, Defendant’s argument ignores the testimony by other
witnesses who presented evidence of penetration at trial. First, the nurse who
examined Rosado after the assault testified at trial that Rosado told the nurse
during the physical examination that there had been penetration during the rape.25
Second, DNA evidence from a vaginal swab of Rosado provided evidence of
penetration; specifically, that Defendant had ejaculated inside Rosado. 26 Thus, the
record included evidence of penetration even without Rosado’s statement during
her police interview. Accordingly, the admission of Rosado’s statement did not
prejudice Defendant.
Defendant cannot satisfy either prong of Strickland and, therefore, his claim
of ineffective assistance of counsel must be denied.
Here, however, the State admitted Rosado’s statement into evidence in a timely manner despite
the fact that Rosado testified as to the truthfulness of her statement on cross-examination. Even
if Trial Counsel did appeal the admission of Rosado’s statement, the error would not mandate
reversal under the plain error standard of review. See Smith, 669 A.2d at 8 (concluding that
under the plain error standard of review—an error so clearly prejudicial that it jeopardizes the
defendant’s right to a fair trial—the improper introduction of a § 3507 did not deprive the
defendant of a fair trial). Therefore, because Rosado did testify as to truthfulness, albeit on
cross-examination, the Court is satisfied that Trial Counsel’s decision not to appeal the
admission of Rosado’s statement was reasonable.
25
Trial Tr. at 14, May 13, 2010.
26
Trial Tr. at 83–86, May 12, 2010.
9
B. Failure to Seek Suppression of Defendant’s Statement to Police Which
Defendant Claims Undermined His Right to Decide Whether to Testify
Defendant argues that Trial Counsel was ineffective because Trial Counsel
did not move to suppress Defendant’s statement to the police. Defendant contends
that Trial Counsel should have moved to suppress Defendant’s statement because it
was involuntary in violation of the Fourteenth Amendment. 27 Furthermore,
Defendant argues that suppression of his prior incriminating statement would have
allowed Defendant to decide to testify at trial without worrying that the State
would use his statement against him on cross-examination. Specifically,
Defendant claims that he would have testified that he and Rosado were having a
consensual affair and that Rosado fabricated the rape in order to prevent Pacheco
from discovering the affair.
Defendant cannot satisfy the second prong of Strickland. 28 Even if
Defendant had testified about an affair, it is likely that such testimony would have
hurt Defendant, not helped him, because his testimony about an affair was
inconsistent with the weight of the evidence to the contrary. Moreover, had
27
See Spano v. New York, 360 U.S. 315 (1959); Colorado v. Connelly, 479 U.S. 157 (1986).
28
See Hoskins, 102 A.3d at 730 (“‘In particular, a court need not determine whether counsel's
performance was deficient before examining the prejudice suffered by the defendant as a result
of the alleged deficiencies.’”) (quoting Strickland, 466 U.S. at 697).
10
Defendant testified he would have been subjected to cross-examination, including
his criminal history (albeit limited to arrests for driving under the influence) and
the State would have exploited the inconsistencies between Defendant’s testimony
and the testimony, and prior consistent statements, of Pacheco and Rosado as well
as the testimony of the nurse who examined Rosado, all of which would have
contradicted Defendant’s claimed affair-defense. It was therefore reasonable for
Trial Counsel to have concerns about how the jury would have perceived
Defendant’s credibility.
Accordingly, Defendant cannot satisfy the prejudice prong of Strickland and,
therefore, his claim of ineffective assistance of counsel must be denied.29 Because
the Court finds no prejudice, the Court will not address whether Trial Counsel’s
decision not to file a motion to suppress Defendant’s statement to the police was
objectively reasonable under the prevailing professional norms.
C. Failure to Adequately Cross Examine Pacheco
Defendant argues that Trial Counsel was ineffective for failing to use
statements Pacheco made during his police interview to impeach Pacheco on cross-
examination. Pacheco’s police interview was conducted in Spanish with an officer
serving as an interpreter (“Interpreting Officer”) for the English-speaking
29
See Strickland, 466 U.S. at 697 (“If 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.”).
11
detective. In Pacheco’s voluntary statement to the police—not in response to a
question—Pacheco offered that Defendant entered the residence through a window
that Defendant first broke and then opened.30 Pacheco made this statement in
Spanish and it was not translated by the Interpreting Officer at the time of the
interview or included in the police report prepared by the English-speaking officer.
Defendant contends that the absence of any broken window at the residence
supports the theory that Rosado let Defendant inside the residence as part of their
affair and that Pacheco made up the story about the broken window to help Rosado
cover up the affair.
However, there was no inconsistency to exploit on cross-examination
because Pacheco—in response to police questioning—stated that he had locked all
of the windows and doors before going to bed. 31 Defendant argues that Trial
Counsel should have used Pacheco’s statement about the broken window to
impeach Pacheco because Pacheco was the only person to ever mention a broken
window and no police officer testified regarding a broken window at the residence.
Pacheco testified at trial that he saw a window open after he came downstairs. 32
Pacheco’s prior statement did not contradict Pacheco’s testimony at trial.
Although Pacheco did not say that the window was broken, and no other testimony
30
Pacheco Tr. Police Interview at 5, Aug. 15, 2009.
31
Id.
32
Trial Tr. at 55, May 11, 2010.
12
was offered to that effect, Pacheco’s testimony was reasonably consistent with his
previous statement. Accordingly, Defendant’s reliance on Moore v. Secretary
Pennsylvania Department of Corrections 33 is misplaced. In Moore, the Third
Circuit held “Counsel’s failure to introduce evidence that contradicts a key
witness’s trial testimony is patently unreasonable.”34 Here, however, Pacheco’s
prior statement was not a contradiction.
Defendant’s claim does not satisfy the first prong of Strickland because
Defendant has not demonstrated that Trial Counsel’s performance fell below an
objective standard of reasonableness. Moreover, even assuming that Trial Counsel
was ineffective in failing to translate Pacheco’s statement into English, Defendant
cannot demonstrate prejudice. Defendant is unable to demonstrate that, but for
Trial Counsel’s error the outcome of the proceedings would have been different.
Defendant argues that Pacheco’s statement contained exculpatory information
because, if there was no broken window, it is likely that Rosado let Defendant into
the residence in connection with the affair Defendant claims they were having.
However, Pacheco did testify at trial that he saw a window open after he came
downstairs. Therefore, it would not have changed the outcome of the trial even if
Trial Counsel had cross-examined Pacheco on the statement he previously made
33
457 Fed.Appx. 170 (3d Cir. 2014).
34
Id. at 182.
13
about a broken window, which was not included in the police report and was not a
central focus of the State’s case against Defendant.
Defendant cannot satisfy either prong of Strickland and, therefore, his claim
of ineffective assistance of counsel must be denied.
D. Failure to Investigate Contents of Defendant’s Cell Phone
Defendant claims that Trial Counsel was ineffective for failing to investigate
the contents of Defendant’s cell phone, which the Wilmington Police Department
seized following Defendant’s arrest. Defendant argues that reviewing the phone
would have provided evidence that Defendant and Rosado were having an affair,
which would have helped to impeach Rosado’s testimony at trial. Defendant
cannot establish that Trial Counsel’s performance fell below an objective standard
of reasonableness. Strickland provides that “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” 35 Strickland further states that decisions not to investigate are
assessed for “reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.”36
During Defendant’s police interview, Defendant consistently denied having
any sort of relationship with Rosado. This denial is inconsistent with Defendant’s
recently purported defense of an affair. As discussed above, Trial Counsel’s
35
Strickland, 466 U.S. at 691.
36
Id.
14
decision not to focus on an affair-defense was a sound trial strategy and was
professionally reasonable. Trial Counsel reasonably concluded that investigating
the contents of Defendant’s cell phone would have been fruitless to the defense
strategy, which did not include any mention of an affair. Therefore, consistent
with Strickland, Trial Counsel made a professionally reasonable strategic decision
that investigation into the contents of Defendant’s cell phone was unnecessary.
Trial Counsel’s decision, being reasonable under the circumstances, is entitled to
deference by the Court.
Even if Defendant established that Trial Counsel’s performance fell below
an objective standard of reasonableness, Defendant is unable to establish prejudice
as a result because Defendant would still need to overcome the inconsistencies
between his purported defense of an affair and his statements made immediately
following the incident that he had no relationship whatsoever with Rosado. Any
evidence from Defendant’s cell phone would also be inconsistent with the
testimony of other witnesses, including Rosado and the nurse who examined her.
Defendant cannot establish “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”37
37
Id. at 694.
15
Defendant cannot satisfy either prong of Strickland and, therefore, his claim
of ineffective assistance of counsel must be denied.
16
VIII. DEFENDANT’S CLAIMS OF BRADY VIOLATIONS
Defendant’s PCR Motion argues that the State committed multiple Brady
violations during the trial that warrant reversal of his conviction.38 The United
States Supreme Court held in Brady v. Maryland,39 that “suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” 40 In U.S. v. Bagley, the United States
Supreme Court further held that the State has an affirmative duty to produce
favorable evidence regardless of whether or not it is requested by the defense.41
The Bagley Court held that favorable evidence must be disclosed where “there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” 42 Additionally, the prosecutor
has a duty to seek out “any favorable evidence known to the others acting on the
government's behalf in the case, including the police.” 43
38
The Court will examine Defendant’s claims of Brady violations because Brady violations
undermine the core principles of a fair proceeding. See Jackson v. State, 770 A.2d 506, 515–16
(Del. 2001).
39
373 U.S. 83 (1963).
40
Id. at 87.
41
United States v. Bagley, 473 U.S. 667, 682 (1985).
42
Id.
43
Kyles v. Whitley, 514 U.S. 419, 437 (1995).
17
The Court must conduct a three-prong analysis to determine if a Brady
violation occurred: “(1) evidence exists that is favorable to the accused, because it
is either exculpatory or impeaching; (2) that evidence is suppressed by the State;
and (3) its suppression prejudices the defendant.”44
A. Alleged Failure by State to Disclose Broken Window Statement by Pacheco
to Wilmington Police
Defendant argues that information relating to Pacheco’s statement
concerning a broken window at the residence during his police interview, and the
identity of a Wilmington Police Officer conducting the interview, were suppressed
in violation of Defendant’s rights under Brady and that he was prejudiced as a
result.
During Pacheco’s police interview, Pacheco made the unsolicited statement
that Defendant broke a window to enter the residence, but the identity of the
Interpreting Officer—who failed to translate Pacheco’s broken window
statement—is unknown.45 Defendant contends that information regarding
Pacheco’s claim of a broken window, including the identity of the Interpreting
Officer and the Interpreting Officer’s notes or reports were Brady information
because it was favorable in impeaching Pacheco’s testimony at trial. Defendant
further contends that this information was suppressed by the prosecution and that
44
Starling v. State, 882 A.2d 747, 756 (Del. 2005) (internal citations omitted).
45
Pacheco Tr. Police Interview at 5, Aug. 15, 2009.
18
Defendant was prejudiced because the information would have impeached Pacheco
and supported Defendant’s purported defense that Rosado let Defendant into the
residence in connection with their ongoing affair.
Defendant has not established a Brady violation because the information is
neither exculpatory nor impeaching. As discussed in relation to Defendant’s
ineffective assistance of counsel claims, Pacheco’s testimony was reasonably
consistent with Pacheco’s statement to the police and with the testimony of the
other witnesses. Pacheco testified at trial that a window was open when he came
downstairs. There was no other report of a broken window and no other mention
of a broken window aside from the unsolicited statement made by Pacheco during
his police interview. A broken window was not a central part of the State’s case
against Defendant and was not inconsistent with the trial testimony of Pacheco.
Presentation of Pacheco’s prior statement would not have affected the outcome of
the trial.
Even assuming that the unsolicited statement about a broken window was
Brady information, Defendant cannot establish that the statement was suppressed
by the State. Trial Counsel had access to Pacheco’s police interview as a result of
discovery. Therefore, Trial Counsel had an actual recording of the interview with
the Wilmington Police Officer during which the statement about the broken
window was made. The statement was made available to Defendant.
19
Accordingly, the Court finds that there was no Brady violation regarding
Pacheco’s broken window statement.
B. Alleged Failure by State to Disclose “Deal” between Rosado and the State
Regarding Rosado’s Probation
Defendant argues that the State committed a Brady violation in suppressing
information concerning any express or implied “deal” between the State and
Rosado that Trial Counsel could have used to impeach Rosado’s testimony at trial.
During the trial, Rosado was on probation for possession with intent to deliver a
controlled substance. Rosado was discharged from probation some time after
Defendant’s trial after completing all the special conditions of her probation and
for Rosado’s overall compliance while on probation. Defendant contends that the
special conditions of Rosado’s probation are unknown; that one of these special
conditions could have been her agreeing to testify against Defendant in exchange
for less time on probation; and that an evidentiary hearing is needed to uncover
evidence of any explicit or implied deal between the State and Rosado.
The Court finds no Brady violation. Defendant has not provided any
evidence that there was any deal between the State and Rosado. Further, as the
State notes, there is no evidence of an agreement in the record. Regardless of the
State’s concession that an evidentiary hearing would discern whether or not
Rosado had an implied understanding that her probation would be shorter as a
20
result of her testimony, the Court finds Defendant has not provided sufficient
evidence to support his claim of an agreement to testify that warrants a hearing.
Accordingly, the Court finds that there was no Brady violation regarding an
alleged deal between the State and Rosado regarding Rosado’s probation.
C. Cumulative Brady Violation
Defendant argues that the cumulative impact of the multiple instances of
suppressed information result in a Brady violation. However, Defendant’s claims
do not establish that the State suppressed any evidence, Brady or otherwise.
Accordingly, because Defendant has not established that even a single Brady
violation occurred, the Court finds that no cumulative Brady violation has
occurred.
IX. DEFENDANT’S CLAIM OF CUMULATIVE ERROR
Defendant argues that the cumulative impact of the ineffective assistance of
counsel and Brady violations violated his due process rights and warrants reversal
of his conviction. The applicable decisional law provides that the cumulative
result of errors at trial may result in plain error requiring reversal even where the
individual errors standing alone would not. 46 The Court finds that Defendant has
not established any of his claims of ineffective assistance of counsel or Brady
46
Wright v. State, 405 A.2d 685, 690 (Del. 1979).
21
violations. Because Defendant has not established any individual errors, there can
be no cumulative error denying Defendant due process.
X. CONCLUSION
This Court finds Defendant’s postconviction claims are time-barred and
without merit. Defendant has not established that Trial Counsel was ineffective.
Additionally, Defendant has not established that any Brady violation occurred.
NOW, THEREFORE, this 9th day of July, 2015, Defendant Efrain
Rivera’s Motion for Postconviction Relief is hereby DENIED.
IT IS SO ORDERED.
Andrea L. Rocanelli
____________________________________
The Honorable Andrea L. Rocanelli
22
State of Delaware v. Rivera.
Combined Opinion