IN THE SUPREME COURT OF THE STATE OF DELAWARE
LARRY MORRIS, §
§ No. 284, 2016
Defendant-Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID. No. 1312002629
STATE OF DELAWARE, §
§
Plaintiff-Below, §
Appellee. §
Submitted: December 14, 2016
Decided: December 28, 2016
Before HOLLAND, VAUGHN, and SEITZ, Justices.
ORDER
This 28th day of December, 2016, having considered the briefs and the
record below, it appears to the Court that:
(1) During a custody hearing in Family Court, Larry Morris’ daughter
(“KM”) testified that Morris sexually assaulted her several times. The Division of
Family Services contacted the Delaware State Police to investigate the allegations.
The police interviewed KM twice and recorded her statements. On both occasions,
KM told police that her father had digitally penetrated her vagina and forced her to
masturbate him between ten and twenty times. She was twelve years old at the
time of the attacks. During KM’s second interview, the State’s audio recording
malfunctioned. The interviewing officer, however, summarized both interviews in
a report. The police also interviewed Morris. Morris waived his Miranda rights
and confessed to abusing his daughter. Police arrested Morris and charged him
with multiple counts of sexual abuse of a child by a person of trust, authority or
supervision, continuous sexual abuse of a child, and related offenses.
(2) The State soon began plea negotiations with Morris. Morris’ counsel
e-mailed the prosecutor and said that Morris did not want to go to trial because he
did not want to “put his daughter through all that.”1 Counsel also said Morris
would likely be amenable to a plea if the State offered ten years of incarceration or
less. On May 23, 2014, Morris pled guilty to one count of sexual abuse of a child
by a person in position of trust, authority or supervision in the first degree, and no
contest to one count of continuous sexual abuse of a child. After an extensive plea
colloquy, the Superior Court found that Morris’ plea was knowing, intelligent, and
voluntary.
(3) On July 22, 2014, the Superior Court sentenced Morris to a total of
thirty years at Level V incarceration, suspended after fifteen years and successful
completion of the Transitions Sexual Offender Program, for six months Level IV
work release, followed by two years at Level III probation. He did not appeal.
1
App. to Opening Br. at 21.
2
(4) On June 29, 2015, Morris moved for postconviction relief, alleging
three instances of ineffective assistance of counsel. First, Morris claimed that
counsel violated the attorney-client privilege by e-mailing the prosecutor and
telling the prosecutor that Morris might be willing to take a plea deal to spare his
daughter the trauma of a trial. He also argued that counsel was ineffective for
failing to demand that the State explain why it “lost” the audio recording of KM’s
second interview. Finally, Morris claimed that counsel incorrectly informed him
that he was facing a mandatory minimum of twenty-five years.
(5) On May 12, 2016, after a hearing, the Superior Court denied Morris’
motion. The court found that sending the e-mail with information about what
Morris might accept in a plea deal and why did not violate the attorney-client
privilege or prejudice Morris because counsel was acting in Morris’ best interest
by trying to negotiate a favorable plea. The Superior Court also determined that
the State did not lose KM’s interview. Rather, the audio recording equipment
failed during the interview. Finally, the court held that counsel properly advised
him about the potential penalties he was facing before he accepted the plea. This
appeal followed.
(6) Morris raises two issues on appeal. First, he claims counsel was
constitutionally ineffective for disclosing during settlement negotiations Morris’
unwillingness to go to trial. Second, he claims counsel was ineffective for failing
3
to investigate the victim’s “lost” recorded statement. We review the Superior
Court’s denial of a motion for postconviction relief for abuse of discretion.2 We
review legal and constitutional questions de novo.3
(7) Before addressing the merits of Morris’ claim, this Court must
determine that he met the procedural requirements of Rule 61.4 A motion for
postconviction relief is procedurally barred if it is untimely, repetitive,
procedurally defaulted, or if the issue was formerly adjudicated.5 This was Morris’
first claim for postconviction relief, and it was timely filed and not otherwise
defaulted. Thus, we consider his motion on its merits.
(8) To succeed on an ineffective assistance of counsel claim, Morris must
show: (1) counsel’s representation fell below an objective standard of
reasonableness, and (2) prejudice.6 “To show prejudice, the defendant must show
that the proceeding’s outcome would have been different had counsel not
committed the challenged errors.”7 There is a strong presumption that counsel’s
representation was professionally reasonable.8
2
Neal v. State, 80 A.3d 935, 941 (Del. 2013).
3
Brooks v. State, 40 A.3d 346, 353 (Del. 2012).
4
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
5
Super. Ct. Crim. R. 61(i).
6
Neal, 80 A.3d at 941 (internal quotations omitted); Strickland v. Washington, 466 U.S. 668, 687
(1984).
7
Brooks, 40 A.3d at 353.
8
Id.
4
(9) Morris first claims counsel violated the attorney-client privilege when
he told the prosecutor that Morris did not want to put his daughter through trial,
and thus would be open to a plea deal. Under Delaware Rule of Evidence 502, a
confidential communication between a client and his attorney made for the purpose
of seeking legal advice is protected by the attorney-client privilege.
(10) As the Superior Court correctly held, the statement that Morris might
be amenable to a plea deal to spare his daughter further trauma was already known
to the State and thus would not be privileged. As the Superior Court held, Morris
had already told the State that “he did not want to face his daughter ever again, that
whatever she said was right, and that he loves her and he wanted the officer to let
her know he still loved her.”9 Further, Morris suffered no prejudice by counsel’s
action—on the contrary, Morris received an extremely favorable plea agreement as
a result of counsel’s plea negotiation efforts. The State could have insisted on
prosecuting Morris with a crime carrying a minimum mandatory sentence of
twenty-five years.10 The State also had ample evidence to convict him, including
his own confession. But the State agreed to remove KM’s age from the charges in
exchange for his plea, reducing the mandatory minimum sentence from twenty-five
years to twelve years. Far from being ineffective, counsel secured an extremely
favorable plea agreement for Morris.
9
Opening Br. Ex. A.
10
See 11 Del. C. § 4205A.
5
(11) Next, Morris argues that his counsel was ineffective for failing to
demand proof of what caused the recording equipment to malfunction during one
of two recorded interviews with KM. According to Morris, because the tape could
have potentially included exculpatory information, counsel was ineffective for
failing to move to suppress all of the videos in accordance with Deberry v. State.11
(12) “The obligation to preserve evidence is rooted in the Fourteenth
Amendment to the United States Constitution and Article 1, Sec. 7 of the Delaware
Constitution.”12 In Deberry v. State, this Court held that the State has a duty not
just to disclose, but also to preserve exculpatory evidence. This case, however,
differs materially from Deberry. Deberry involved law enforcement’s failure to
preserve evidence that was once within its possession. Here, as the Superior Court
correctly found, the State did not lose or destroy any evidence. Rather, it is
undisputed that the audio recording equipment malfunctioned. The video was
available, but the sound did not work. Further, there is no evidence that the
statement could have been favorable to Morris. Although the audio malfunctioned,
the police summarized both of the victim’s interviews in his police report.13 The
11
457 A.2d 744, 752 (Del. 1983).
12
Hunter v. State, 55 A.3d 360, 368 (Del. 2012).
13
App. to Answering Br. at 18.
6
summary shows that the victim’s statement would have been incriminating, not
exculpatory. Therefore, Deberry is inapplicable.14
NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
14
Warren v. State, 625 A.2d 280, 1993 WL 132986, at *2-3 (Del. April 8, 1993) (audio recorded
statement was not exculpatory and thus not a Deberry violation).
7