State v. Cephas

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE In and for Kent County
ID. No. 1503005476
V.
RK15-03-0415-01 through
RK15-03-0418-01 USC < 13

LIO of Rape 1“ (F)
RK15-03-419-01 through
RK15-03-0421-01 Rape 2™ < 12 (F)
RK15-03-0422-01

Cont Sex Abuse (F)
RK15-03-0423-01

Sex Solic Child (F)

VERNON D. CEPHAS,

Defendant.

Nee’ ee ee ee ee ee ee ee Ne

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Kathleen A. Dickerson, Esq., Deputy Attorney General, Department of Justice, for the
State of Delaware.

Julianne E. Murray, Esq., Law Offices of Murray, Phillips & Gay, for Defendant.

FREUD, Commissioner
December 14, 2020

The defendant, Vernon D. Cephas (“Cephas”), was found guilty following a
jury trial on September 13, 2016 of three counts of Rape in the Second Degree, 11
Del. C. § 772; one count of Continuous Sexual Abuse of a Child < 13, 11 Del. C.§
776; four counts of Unlawful Sexual Contact in the Second Degree,11 Del. C. § 769,
as a lesser included offense of Rape in the First Degree and one count of Sexual
Solicitation of a Child , 11 Del. C. §1112A. Prior to trial Cephas rejected two plea
offers from the State one of which would have resulted in Cephas serving ten years
incarceration and another plea offer to serve 11 years. A presentence report was
ordered and on December 13, 2016 Cephas was sentenced to a total of 157 years
incarceration suspended after serving 79 years. The first 75 years were minimum
mandatory.

A timely Notice of Appeal to the Delaware Supreme Court was filed. Cephas’s
counsel filed a brief and motion to withdraw pursuant to Supreme Court Rule 26(c).
In the motion to withdraw, appellate counsel represented that he conducted a
conscientious review of the record and concluded that no meritorious issues existed.
By letter, counsel informed Cephas of the provisions of Rule 26(c)and attached a
copy of the motion to withdraw and accompanying brief. Cephas was informed of his
right to supplement his attorney’s presentation. Cephas, pro se, raised seven issues
for appeal for the Supreme Court to consider which the Supreme Court classified as
follows:

In his first claim on appeal, Cephas argues that the Superior Court
should have suppressed his statement to the police on the ground that his
waiver of Miranda rights was involuntary. ...

In his second claim on appeal, Cephas contends that the Superior Court
erred when denying the motion to reopen the motion to suppress. ...

In his third claim on appeal, Cephas argues that his statement should
have been suppressed because of a deficiency in the application for the
arrest warrant. ...

Cephas’s fourth claim on appeal challenges the jury instructions. First, Cephas
argues that the jury instruction on “evasion of arrest’ was not supported by the
evidence. ... Second, Cephas claims for the first time that the jury instruction
“for 3507 statement” was “inadequate.” ...

In his fifth claim on appeal, Cephas contends that the prosecutor engaged in
improper vouching. ...

In his sixth claim, Cephas argues that the lack of physical evidence should
have resulted in his acquittal at trial on the basis of insufficient evidence. ...

In his seventh and last claim on appeal, Cephas contends that the Superior
Court was biased against him because the Trial Judge did not appoint him new
counsel despite knowing of ‘the obvious disconnect’ between Cephas and
Defense Counsel.'

The Supreme Court granted the State’s motion to affirm as to all of Cephas’s claims.’

The Supreme Court affirmed Cephas’s conviction on July 18,2017 and the mandate

issued on August 4, 2017.

Next Cephas filed a pro se motion for postconviction relief pursuant to

Superior Court Criminal Rule 61 on August 28, 2017 along with a motion for

appointment of counsel. The Court granted the motion to appoint counsel on

November 22, 2017 and referred the matter to the Office of Conflicts Counsel. On

March 15, 2018 Julianne E. Murray, Esquire (“Appointed Counsel”) was appointed

' Cephas v. State, 169 A.3d 352 (Table), 2017 WL 3048466, *2-4.

2 Id. at *4.
to represent Cephas. On November 7, 2018 Appointed Counsel filed an Amended
Motion for Postconviction Relief and an opening brief in support of the motion. The
matter was set for briefing. On March 5, 2019 while the matter was still in briefing,
Cephas filed a pro se Motion to Disqualify his Appointed Counsel which was
referred to Appointed Counsel for a response. On July 15, 2019 Appointed Counsel
notified the Court that Cephas requested that he be allowed to proceed pro se. On
August 19, 2019 the Court held a colloquy with Cephas to determine if he wished to
proceed pro se. At the hearing Cephas stated that he had not reached a decision as
to whether he wished to proceed pro se and the Court gave Cephas until August 23,
2019 to inform the Court how he wished to proceed. On August 23, 2019 Appointed
Counsel notified the Court that after speaking with Cephas the day before that he
decided to have Appointed Counsel continue to represent him and not to proceed pro
se. Several further extensions of the briefing order were issued at the request of the
parties. The matter was further delayed due to the State of Emergency issued by the
Governor during the Coronavirus pandemic.
CEPHAS’S CONTENTIONS

Cephas’s Appointed Counsel filed an Amended Motion for Postconviction
Relief pursuant to Superior Court Rule 61. In the motion, the following grounds for
relief were raised:

Claim I: Cephas’s 6" and 14" Amendment rights under the
U.S. Constitution and Article I, § 7 rights under the
Delaware Constitution were violated by Trial
Counsel’s failure to file a motion to suppress
directed to Cephas’ invocation of his right to remain
silent and an unlawful warrant.
Claim II: | Cephas’s 6" and 14" Amendment rights under the
U.S. Constitution and Article I, § 7 rights under the
Delaware Constitution were violated by Trial
Counsel’s ineffectiveness in failing to communicate
at least one plea.

Claim III: Cephas’s 6" and 14" Amendment rights under the
U.S. Constitution and Article I, § 7 rights under the
Delaware Constitution were violated by Trial
Counsel’s ineffectiveness in failing to object to
and/or challenge key witnesses in the State’s case.

Claim IV: Cephas’s 6" and 14" Amendment rights under the

U.S. Constitution and Article I, § 7 rights under the

Delaware Constitution were violated by the Court’s

failure to conduct a more thorough examination into

the problems between Trial Counsel and Cephas.
DISCUSSION

Under Delaware law, the Court must first determine whether Cephas has met
the procedural requirements of Superior Court Criminal Rule 61(i) before it may
consider the merits of the postconviction relief claims.2 Under Rule 61,
postconviction claims for relief must be brought within one year of the conviction
becoming final.“ Cephas’s motion was filed in a timely fashion, thus the bar of Rule
61(1)(1) does not apply to the motion. As this is Cephas’s initial motion for

postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any

claim not previously asserted in a postconviction motion, does not apply either.

* Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

4 Super. Ct. Crim. R. 61(i)(1).
None of Cephas’s claims were previously raised at trial or on direct appeal and
they should be barred unless he demonstrates: (1) cause for relief from the procedural
default; and (2) prejudice from a violation of the movant's rights.° The bars to relief
are inapplicable to a jurisdictional challenge or “to a claim that satisfies the pleading
requirements of subparagraph (2)(i) or (2)(ii) of subdivision (d) of Rule 61.° To meet
the requirements of Rule 61(d)(2) a defendant must plead with particularity that new
evidence exists that creates a strong inference that the movant is actually innocent in
fact of the acts underlying the charges of which he was convicted’ or that he pleads
with particularity a claim that a new rule of constitutional law, made retroactive to
cases on collateral review by the United State or Delaware Supreme courts, applies
to the defendant’s case rendering the conviction invalid.’ Cephas’s motion pleads
neither requirement of Rule 61(d)(2).

Each of Cephas’s grounds for relief are premised on allegations of ineffective
assistance of counsel. Therefore Cephas has alleged sufficient cause for not having
asserted these grounds for relief at trial and on direct appeal. Cephas’s ineffective
assistance of counsel claims are not subject to the procedural default rule, in part
because the Delaware Supreme Court will not generally hear such claims for the first
time on direct appeal. For this reason, many defendants, including Cephas, allege

ineffective assistance of counsel in order to overcome the procedural default.

5 Super. Ct. Crim. R. 61(i)(3).
° Super. Ct. Crim. R. 61(i)(5).
” Super. Ct. Crim. R. 61(d)(2)(i).

8 Super. Ct. Crim. R. 61(d)(2)(ii).
“However, this path creates confusion if the defendant does not understand that the
test for ineffective assistance of counsel and the test for cause and prejudice are
distinct, albeit similar, standards.”” The United States Supreme Court has held that:

[i]fthe procedural default is the result of ineffective assistance of
counsel, the Sixth Amendment itself requires that the
responsibility for the default be imputed to the State, which may
not ‘conduc[t] trials at which persons who face incarceration must
defend themselves without adequate legal assistance;’
[i]neffective assistance of counsel then is cause for a procedural
default.'°
A movant who interprets the final sentence of the quoted passage to mean that he can
simply assert ineffectiveness and thereby meet the cause requirement will miss the
mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant
must engage in the two part analysis enunciated in Strickland v. Washington"' and
adopted by the Delaware Supreme Court in Albury v. State."
The Strickland test requires the movant show that counsel's errors were so
grievous that his performance fell below an objective standard of reasonableness."

Second, under Strickland the movant must show there is a reasonable degree of

probability that but for counsel's unprofessional error the outcome of the proceedings

” State v. Gattis, 1995 WL 790961 (Del. Super.).

'° Murray y. Carrier, 477 U.S. 478, 488 (1986).

'' 466 U.S. 668 (1984).

'2 551 A.2d 53, 58 (Del. 1988).

'° Strickland, 466 U.S. at 687; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).

q
would have been different, that is, actual prejudice.'* In setting forth a claim of
ineffective assistance of counsel, a defendant must make and substantiate concrete
allegations of actual prejudice or risk summary dismissal.’°

Generally, a claim for ineffective assistance of counsel fails unless both prongs
of the test have been established.'® However, the showing of prejudice is so central
to this claim that the Strickland court stated "[i]f 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.""’ In other words, if the Court finds
that there is no possibility of prejudice even if a defendant's allegations regarding
counsel's representation were true, the Court may dispose of the claim on this basis
alone.'* Furthermore, Cephas must rebut a "strong presumption" that trial counsel’s
representation fell within the "wide range of reasonable professional assistance," and
this Court must eliminate from its consideration the "distorting effects of hindsight
119

when viewing that representation.

Moreover, there is a strong presumption that defense counsel’s conduct

"Id.

'> See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995
WL 466465 at *1 (Del. Supr.)).

'© Strickland, 466 U.S. at 687.

'7 Td. at 697.

'8 State v. Gattis, 1995 WL 790961 (Del. Super.).

"° Strickland, 466 U.S. at 689; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

8
constituted sound trial strategy.”” In Harrington v. Richter,’' the United States
Supreme Court explained the high bar that must be surmounted in establishing an
ineffective assistance of counsel claim. In Harrington, the United States Supreme
Court explained that representation is constitutionally ineffective only if it so
undermined the proper functioning of the adversarial process that the defendant was
denied a fair trial.” The challenger’s burden on an ineffective assistance of counsel
claim is to show that counsel made errors so serious that counsel was not functioning
as the “counsel” guaranteed the defendant by the Sixth Amendment. It is not enough
to show that the errors had some conceivable effect on the outcome of the proceeding.
Counsel’s errors must be so serious as to deprive the defendant of a fair trial.”°
Counsel’s representation must be judged by the most deferential of standards.
The United States Supreme Court cautioned that reviewing courts must be mindful
of the fact that unlike a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted with his client, with
opposing counsel, and with the judge. In light of this strong precedent I have
reviewed the file, considered Trial and Appellate Counsels’ affidavits and the
arguments of counsel and I conclude that Cephas has failed to meet the burden
imposed by Strickland. Both Trial and Appellate Counsel clearly deny all of
Cephas’s allegations. I find Trial and Appellate Counsels’ affidavits more

*° Strickland v. Washington, 466 U.S. 668, 689 (1984).
*' Harrington vy. Richter, 131 S. Ct. 770 (2011).
2 Td., at 791.

Td.
compelling than Cephas’s allegations. I find that Trial and Appellate Counsel
represented Cephas effectively. To the extent, if any, that Cephas’s claims are not
procedurally barred I will address each claim.

Cephas’s first claim alleges that Trial Counsel’s representation was ineffective
because she failed to file additional suppression motions. First, Cephas argues that
he invoked his right to remain silent during his interrogation. Cephas claims that the
interrogation should have ended when he told Detective Csapo “I can’t even do this
no more.” Second, Cephas claims that his arrest was unlawful and therefore any
subsequent statement would be inadmissible as “fruits of the poisonous tree.”

Trial Counsel disputes Cephas’s version of events and assessment of potential
suppression issues. First, Trial Counsel states that she engaged in lengthy
discussions, including a review of his recorded statement and other discovery
materials, with Cephas on at least five occasions prior to the suppression hearing.
According to Trial Counsel’s affidavit, during a discussion with Cephas on the day
of his preliminary hearing, he decided not to have copies of discovery due to his
incarceration and the lack of privacy at the prison. Trial Counsel states that she
discussed discovery with Cephas at length on October 22, 2015, and Cephas “advised
he was not interested in a plea.” On November 7, 2015, Trial Counsel states that she
again conducted a lengthy visit with Cephas to discuss his case, including potential
suppression issues. Trial Counsel again discussed the case with Cephas during his
final case review on November 10, 2015. On this date Cephas received additional
time to consider a plea offer that had been extended to him on that day. Cephas

refused the plea offer and the case was set for trial on November 16, 2015. The day

10
before trial Cephas indicated to Trial Counsel that he wished to hire private counsel.
Cephas indicated to Trial Counsel that he might accept a plea if his mother advised
him to do so but when she did not, he again rejected the plea offer. Thereafter,
Cephas asked the Court for a continuance to allow him time to seek private counsel.
Cephas did not retain private counsel. Subsequently, Trial Counsel filed a motion out
of time and a motion to suppress on July 11, 2016. The motions were sent to Cephas
on July 22, 2016 and the hearing was held on August 4, 2016. Trial Counsel was
aware of Cephas’s desire to suppress his statement based upon the grounds currently
articulated in his motion for postconviction relief but she did not believe that either
argument was meritorious. Trial Counsel believed that “a lone statement, ‘I can’t do
this no more.’ ... must be viewed in context based on the questioning before and
continued conversations after this statement.” Trial Counsel, states that prior to the
contested statement, the detective discussed the allegations against Cephas, his
possible motivations for the alleged conduct and getting help for Cephas. After these
statements, Cephas then stated that he “can’t even do this no more.” The detective
then continues to discuss help for Cephas. Trial Counsel did not feel that this
scenario equated to an invocation of the right to remain silent.

Second, Cephas claims that his arrest was unlawful because the police did not
possess a valid warrant prior to entry in to the house to seize him. Again, Trial
Counsel disagrees with Cephas’s assessment of the situation. According to Trial
Counsel this issue was clarified during the suppression hearing. Det. Csapo described
his process for obtaining the warrant, which involved him getting the signed warrant

prior to leaving for Cephas’s home. Trial Counsel also notes that the police were

11
given access to the house by a juvenile occupant. Trial Counsel concluded that
Cephas’s second issue was explored at the suppression hearing and that the testimony
demonstrated that this claim was “not a meritorious argument.”

Tagree with Trial Counsel’s analysis on the issue of invocation. To determine
whether an ambiguous invocation of Miranda occurred, the entire context of the
conversation must be examined “analyzing the totality of the circumstances.” 4
When the statement is viewed in the light of its context and there is no ambiguity,
Pulliam is not implicated. During the contested exchange between Det. Csapo and
Cephas, the detective is discussing the allegations with Cephas. He told Det. Csapo
that “My whole life ... it seems like ... it’s been rough, boy” In response the detective
tells him that his life isn’t that bad but that Cephas “took advantage of someone.”
Cephas responds that “Don’t matter what I say.” The detective continues talking to
Cephas whereupon he states: “TI can’t do this no more.” When viewed in context, this
is not an invocation but a response to the detective discussing his life, behaviors and
the need for help. There was no need for a suppression motion because Cephas did
not invoke Miranda. Cephas was simply stating that he could not live the way he had
been living anymore.

Additionally, I agree with Trial Counsel’s analysis of the arrest warrant issue.
The State previously addressed this claim in its response to Cephas’s Delaware
Supreme Court Rule 26© brief. Quite simply, there is nothing in the record from the
suppression hearing to support Cephas’s claim that he was arrested before the

execution of the warrant. Det. Csapo was clear in his testimony during the

4 State v. Pulliam, 2012 WL 6845693 (Del. Super. Dec. 13, 2012), at *5.

12
suppression hearing. He received the arrest warrant over video phone prior to
leaving for Cephas’s house. During his testimony the detective estimated the actual
time when different tasks were accomplished but he was certain on the order of
events. In his testimony the detective stated that he received the warrant “between
one and two in the afternoon.” During cross examination Det. Csapo stated his
arrival time at Cephas’s house was “approximately 2:30.” Again, the time is clearly
inexact. The detective is exact, however, in distinguishing the order of events. He
was clear that the warrant came before he left for Cephas’s house. The sworn
testimony at the suppression hearing demonstrates that there was no issue. Trial
Counsel clearly had no basis to file for suppression on this issue.

Both arguments presented by Cephas fail. First, Cephas has failed to
demonstrate a Miranda invocation given the totality of the circumstances surrounding
the statement. Cephas’s second claim was explored during the suppression hearing
and the appellate process and has no merit. Cephas cannot show that there is either
a cause for relief or prejudice as required by Superior Court Criminal Rule 61(1)(3).
As Cephas’s claim of ineffective assistance of counsel fails to meet either prong of
Strickland his first ground for relief should be denied.

Cephas’s second claim is that Trial Counsel failed to communicate a 25 year
plea offer to him on or about June 29. Cephas agrees that he rejected the plea offers
to ten years and eleven years. Cephas never states that he would have accepted the
twenty-five year plea.

Again, Trial Counsel contradicts Cephas’s version of events. She maintains

that she communicated all plea offers to Cephas. According to Trial Counsel’s

13
affidavit, Cephas was not willing to entertain any plea offer after the November 2015
conversation with his mother.

Plea negotiations were ongoing during the pendency of this case. The best
offer extended to Cephas was for Rape Second Degree and Sexual Solicitation with
a 10 year Level V sentence. This plea was rejected on the record by Cephas. He was
given another plea offer to eleven years at Level V, which was rejected and Cephas
subsequently requested a continuance to seek private counsel. A plea offer was
extended to Cephas in June and he rejected this plea on September 6, 2016. Cephas’s
intent was unequivocal in his plea rejection colloquy on September 6 — he was not
going to entertain the plea offer. According to the transcript of the September
Colloquy:

THE COURT: Today if you were offered a plea of 25 years
recommended sentence, you would not take it?

THE DEFENDANT: No.

THE COURT: You would want to go to trial?

THE DEFENDANT: Yes.

THE COURT: And you would want to go to trial based on your
decision not to take that offer, and knowing that your decision not
to take that offer, and knowing that if convicted, you will be
facing minimum mandatory time of 177 years if you are convicted
of all offenses, and it would be by all intents and purposes life
with no chance of parole or probation.

THE DEFENDANT: Yes sir.
THE COURT: Okay. Have had the chance to talk over this

14
matter fully with Ms. Macpherson-Johnson in making that
decision?

THE DEFENDANT: No.

THE COURT: Okay. Is there something else that you need to

talk to her about?

THE DEFENDANT: A lot of stuff.

THE COURT: With regard to — not with regard to your trial
preparation, but with regard to the decision regarding that plea?

THE DEFENDANT: I’m not taking it. I’m not trying to be ignorant.
THE COURT: No. I think we are kind of two ships passing in the

night. Maybe we need to line up and talk for a second.

You had enough chance to consider whether or not you want to
take that plea, and you don’t want to take that plea?

THE DEFENDANT: No, sir.

THE COURT: Is that correct?

THE DEFENDANT: That’s correct.

The COURT: Okay. And at least with regard to that decisions,

you’ve had enough time to talk to Ms. Macpherson-Johnson?

THE DEFENDANT: for the purposes of this motion or this, I’ll say
25
yes.

Cephas was clear during the Plea Colloquy. He would not accept the plea to 25 years

of Level V. He also clearly stated that he had sufficient time to discuss this decision

> Plea colloquy trans. At 5-7.

15
with his Trial Counsel.

Trial Counsel was adamant that she presented all plea offers to Cephas.
Furthermore, Cephas cannot show any prejudice since he clearly had no intention to
accept the plea offer. Except for the one instance when he expressed that he may
consider accepting a plea if his mother recommended it, Cephas steadfastly refused
to entertain the pleas. He was clear in his November 6" Plea Colloquy with the
Court. He would not accept the plea. Cephas has failed to demonstrate either a cause
for relief or prejudice from the alleged defect in representation. Therefore, this claim
of ineffective assistance of counsel should fail.

In his third claim Cephas argues that Trial Counsel should have objected to
portions of testimony from Dr. Alwan, Christina Lynch and Det. Csapo. First,
Cephas points out that Dr. Alwan testified that the victim reported that the abuse had
occurred for a year, contrary to the victim’s statement at the Children’s Advocacy
Center [“CAC”]. Secondly, the doctor admitted on direct that he noted a fissure or
gap in the child’s hymen but that he “put a question mark in my notes because I don’t
have a lot of experience in these findings.”

A full examination of the trial transcript of Dr. Alwan’s testimony shows that
the doctor asked the victim to recount the abuse to him. Dr. Alwan testified that to
get a time frame “I had to give her options like weeks, months, years, and she said
one year.” That was the extent off the testimony relating to the time frame. From the
context of the testimony, it is clear that the victim was not providing him with an
exact time frame.

Dr. Alwan’s testimony regarding his physical examination made no finding of

16
abuse. The full response given by the physician, shows that Dr. Alwan never testified
that there was physical evidence of abuse. According to the transcript:

Q: So the purpose of your genital exam during this well-
child visit is not to assess whether there’s been sexual
abuse?

A: No.

Q: And when you examined [victim’s] genital area, were
there any findings of significance?

A: I did notice a small gap or fissure in her hymen
membrane. I put a question mark in my notes again
because I don’t have a lot of experience in these
findings. It’s not a nonspecific finding. Sometimes
we find that in normal kids.

Q: So it’s basically something you just noted?

A: Uh-hum. And we see that usually after trauma, any
type of trauma.

Dr. Alwan never correlated the hymen gap or fissure to abuse. Trial Counsel
questioned Dr. Alwan abut his findings and he agreed with her that this condition is
found in children “[e]ven without a history of abuse.” The State does not believe that
this portion of testimony was prejudicial to Cephas. Dr. Alwan testified about a
physical feature found in the victim. He never stated that the physical feature meant
the victim was abused.

Second, the forensic nurse examiner Christina Lynch (“Lynch”) stated that she

did not get a detailed statement from the victim because she expected her to be

17
interviewed at the Child Advocacy Center. She described the interviewers as persons
“whose only job it is to talk to kids and kind of find out the truth.” Again, it is a
stretch to argue that Lynch’s statement created the idea that the victim’s statement at
the CAC was the truth. Lynch stated “kind of find out the truth.” This is not a
statement of certainty. Lynch also made no opinion of whether the victim’s statement
at the CAC was the truth. Lynch only knew what had been told to her at the hospital.

Third, Cephas objects to two statements made by Det. Csapo. The first was a
response to whether it was “common for a suspect to come in and tell the information
that you want.” The detective replied that it was uncommon. This question must be
viewed in context. It was long interview. The question was not designed to call
Cephas a liar but to explain that interviews can be a long process.

The Supreme Court of Delaware examined this statement in Cephas’s direct
appeal. The Court found:

the records reflects one instance when the Superior Court
interrupted the direct examination of Detective Csapo
specifically out of concern that some of the questions
presented to him ‘should [might] have been reasonably
expected to have elicited potential vouching with regard to
the truth or falsity of the defendant’s statement.” The Trial
Judge’s sua sponte interruption of the testimony was an
appropriate use of the court’s discretion and prevented the
possibility of Detective Csapo giving an impermissible
opinion of the veracity of Cephas’s statement.”°

The second challenged response by Det. Csapo involves the CAC. Det. Csapo

*° Cephas v. State, Del. Supr., No. 12, 2017 (Del. Supr. July 18, 2017) at *9.

18
testified that with victim’s of a certain age, contact is through the CAC and that he
“would direct the interviewer to ask specific questions to elicit a result that I needed
in my investigation.” The trial court, swa sponte, interrupted the detective’s
testimony. Cephas claims that “police officers are presumed to be tellers of truth, his
statement casts a certain reliability on the truthfulness of the alleged victim” and this
testimony impacted the outcome of the outcome of the case is a stretch.

Trial Counsel refutes Cephas’s opinion of what is critical trial testimony. Trial
Counsel found the victim’s trial testimony particularly compelling. Trial Counsel
recalled the victim as being “poised and responsive to questions.” She also noted that
the victim “burst into tears” when asked to identify Cephas. To Trial Counsel, who
was obviously present in the courtroom, the victim’s testimony was key to the verdict.
Trial Counsel states that the transcript did not fully capture the trial. She relied on
many factors when deciding how to react to a given witness, including the
“attentiveness of the jurors.”

The Court has found that failing to object during trial because of a “conscious
strategic decision on the part of trial counsel may not be “objectively
unreasonable.”*’ In Walker the Court added that it could not find prejudice from trial

*8 Here

counsel’s actions because the defendant was acquitted of several offenses.
Trial Counsel stated she made strategic decisions not to object to many of the
contested statements. She based these decisions on details including “the

attentiveness of the jurors with regard to various witnesses.” In other words, if Trial

°7 Walker v. State, 2007 WL 2949145, at *2 (Del.).
°8 Td. at *2.

19
Counsel felt that the jurors were not paying particular attention to the witness, she did
not feel it was necessary to highlight testimony that might otherwise be given little
weight.

Furthermore, Cephas must show prejudice. It should be noted that Cephas was
not convicted on all indicted charges. He was originally charged with three counts
of Rape First Degree but convicted of the lesser included offense of Unlawful Sexual
Contact First Degree. To arrive at this verdict, the jury must not have believed
beyond a reasonable doubt the victim’s statement at the CAC that Cephas had
engaged in penile-vaginal intercourse with her. To arrive at this verdict, the jury had
to conclude that Cephas engaged in sexual contact, not intercourse as the victim
described. As Cephas has failed to provide a cause for relief or a demonstration of
prejudice, his claims should fail.

In his fourth claim Cephas alleges that his rights were violated by an
insufficient colloquy by the Court into issues between Cephas and Trial Counsel.
Cephas wanted certain motions filed and Trial Counsel did not feel they were
appropriate. Cephas told the Court that he was not smart enough to proceed on his
own. In basic terms, he wanted the Court to appoint another attorney for him.

Trial Counsel denies many of the allegations made by Cephas about her
representation. According to Trial Counsel she met with Cephas to discuss his case
on many occasions, beginning at his preliminary hearing. After Cephas requested a
continuance to hire private counsel, Trial Counsel met with him seven times prior to
trial. Trial Counsel agrees that discovery was not given to Cephas to have in prison

but states that this was his choice. Trial Counsel noted that Cephas did not want

20
materials related to this case “due to the sensitive nature of the case and the lack of
privacy at the prison.”

In his appeal, Cephas claimed that the Court was biased against him because
the Court did not appoint him a new counsel. The Supreme Court denied the
allegation and ruled that Cephas presented no evidence to support this claim.
Contrary to Cephas’s claim, the Supreme Court found the trial judge accommodated
him. The Supreme Court found that during the suppression hearing “the Trial Judge
addressed Cephas’ concern and gave him the option to proceed through the required
colloquy. Cephas chose to stay with Defense Counsel.””’

A defendant is “guaranteed the right of self-representation [and] the right to be
represented by counsel” by the United States Constitution.*? The right to self-
representation, however, is only invoked after “the defendant has made a knowing
and intelligent waiver of the right to counsel.”*! In Hooks the defendant wanted to
proceed with trial counsel serving as his co-counsel but the Delaware Supreme Court
concluded that it was not an abuse of discretion for the court to “forc[e] defendants
to make the choice between accepting appointed counsel or conducting their
defense.” As such, Cephas has failed to show where he is entitled to postconviction

relief through either cause or prejudice.

*? Cephas at 11.

*° Hooks v. State, 416 A.2d 189, 197 (Del. 1980), citing Faretta v. California, 422 U.S. 806
(1975).

*' Td.
Td. At 198.

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CONCLUSION

After reviewing the record in this case, it is clear that Cephas has failed to
avoid the procedural bars of Superior Court Criminal Rule 61(i). A review of his
counsel’s affidavit clearly shows that counsel represented Cephas in a competent
fashion and was not ineffective. Additionally, Cephas has failed to demonstrate any
concrete prejudice. Consequently, I recommend that Cephas’s motion be denied as

procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice and as

meritless.
/s/ Andrea M. Freud
Commissioner
AMEF/dsc

oc: Prothonotary

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