IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Plaintiff, )
)
)
v. ) Cr. ID. No. 1605006649
)
)
ROBERT HEARNE, )
)
Defendant. )
Submitted: February 6, 2023
Decided: April 17, 2023
COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE SUMMARILY DISMISSED
Diana Dunn, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.
Robert Hearne, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
O’CONNOR, Commissioner
1
This 17th day of April, 2023, upon consideration of Defendant’s Motion for
Postconviction Relief and the record in this matter, the following is my Report and
Recommendation.
PROCEDURAL BACKGROUND
On January 23, 2017, after a four-day trial, a jury found Robert Hearne
(hereinafter “Defendant”) guilty of seven counts of Rape First Degree, four counts
of Unlawful Sexual Contact Second Degree, two counts of Continuous Sexual Abuse
of a Child, two counts of Dangerous Crime Against a Child, one count of Sexual
Abuse by a Person in a Position of Trust, Authority or Supervision First Degree, and
one count of Unlawful Sexual Contact Second Degree.1 Defendant’s victim was his
minor daughter.
On March 31, 2017, the Court sentenced Defendant to serve seven natural life
sentences – one for each Rape First Degree conviction, and an additional ninety-five
years of incarceration, followed by probation supervision, for the remaining
convictions. The Delaware Supreme Court affirmed Defendant’s convictions on
direct appeal.2
1
The jury acquitted Defendant of one count Rape First Degree (Count XI), two counts of Unlawful
Sexual Contact Second Degree (Counts III and IV), and one count of Sexual Exploitation of a
Child (Count XXI).
2
Hearne v. State, 2017 WL 6336910, at *1 (Del. Dec. 11, 2017). On direct appeal, appellate
counsel filed a Rule 26(c) brief and a motion to withdraw from representation. Id. Defendant
submitted written points for the Delaware Supreme Court’s consideration on direct appeal.
Defendant argued that his ex-wife was employed by the New Castle County Prothonotary,
therefore the case should have been assigned to a Superior Court Judge in Kent County or Sussex
2
On May 23, 2018, Defendant filed a pro se Motion for Postconviction Relief,3
and on January 16, 2020, Defendant, through court-appointed counsel, filed an
Amended Motion for Postconviction Relief.4 In the amended motion, Defendant
asserted trial counsel was ineffective for failing to file a Motion for a Bill of
Particulars.5 The Superior Court dismissed Defendant’s postconviction claim,
concluding trial counsel’s decision not to seek a Bill of Particulars was reasonable
and strategic.6 The Court also concluded Defendant could not establish prejudice
pursuant to Strickland v. Washington.7
On May 12, 2022, Defendant filed a Federal Habeas Corpus Petition in the
United States District Court for the District of Delaware.8 While the District Court
preliminarily concluded Defendant’s Petition was time-barred,9 it granted
County, to avoid an appearance of impropriety. Id. at *2. Second, Defendant argued his daughter’s
testimony was untruthful and coached by a detective and the prosecutor. Id. at *3. Third,
Defendant claimed the jury was not fully informed of the elements of the charged offenses. Id.
Finally, Defendant asserted the indicted rape charges were defective in that the Indictment
described the “exact same offense.” Id. at *4. The Delaware Supreme Court concluded, after
conducting its own review of the record, that Hearne’s appeal was wholly without merit, and the
Court affirmed the Judgment of Conviction. Id.
3
Docket Item (“DI”) 48, Pro se Motion for Postconviction Relief.
4
DI 69, Defendant’s Amended Motion for Postconviction Relief.
5
Id.
6
State v. Hearne, 2020 WL 7093407, at *3-4. (Del. Super. Dec. 4, 2020), aff’d, Hearne v. State,
2021 WL 2826451 (Del. July 7, 2021).
7
Id. at *4. Defendant failed to demonstrate that counsel’s failure to file a Motion for a Bill of
Particulars was prejudicial, i.e., Defendant failed to demonstrate that there was a reasonable
probability he would have been acquitted at trial. Id. Strickland v. Washington, 466 U.S. 668
(1984).
8
See generally Hearne v. May, 2022 WL 2064969 (D. Del. June 8, 2022).
9
Id. at *3 n.5.
3
Defendant’s Motion to Stay Proceedings until Defendant presented all unexhausted
habeas corpus claims in State court.10
On January 12, 2023, Defendant filed a second Motion for Postconviction
Relief in this Court.11 In this second Motion, Defendant presents several convoluted
and overlapping claims. He first raises a statute of limitations claim pursuant to 11
Del. C. § 205, arguing that trial counsel was ineffective for failing to raise the statute
of limitations as a jurisdictional bar to the prosecution. Defendant argues that “13
of the charges of the indictment fell outside the time limitations,”12 and therefore the
State’s prosecution is time-barred.
Defendant next argues the evidence produced by the State at trial, namely the
minor victim’s testimony, solely consisted of “repressed memory of a victim that
has been recovered through psychotherapy.”13 According to Defendant, when a
witness’s testimony has been recovered through psychotherapy, Delaware law
requires the State must provide “some evidence of the ‘corpus delicti’ independent
of such repressed memory.”14 And here, Defendant argues trial counsel was
ineffective for failing to require the State to produce evidence independent of his
10
Id.
11
DI 82, January 12, 2023 Pro se Motion for Postconviction Relief.
12
Id. p. 4.
13
Id. p. 5.
14
Id.
4
minor daughter’s testimony which, he argues, consisted of her memory that was
recovered through psychotherapy.
Third, Defendant claims the jury instructions were “inadequate” in that they
did not satisfy 11 Del. C. § 205(j), and the Court failed to properly instruct the jury
on the necessary elements of the crimes charged.15
Fourth, Defendant raises generalized claims that trial counsel was ineffective
for “lack of attention to details”:16 counsel was incapable of grasping or
comprehending the facts;17 counsel failed to file a Motion for a Bill of Particulars;18
counsel failed to investigate the applicability of the statute of limitations;19 counsel
failed to conduct an adequate investigation; counsel failed to consider hiring an
expert to potentially impeach the complaining witness;20 and counsel failed to
consider alternative defenses.21
Finally, Defendant claims the minor victim’s testimony was insufficient to
support a guilty verdict. Specifically, he argues “none of the evidence presented
during the trial can corroborate any elements of the crimes that were brought against
the Defendant by indictment.”22
15
Id. p. 11-12.
16
Id. p. 25.
17
Id. p. 14.
18
Id.
19
Id. p. 15.
20
Id. p. 16.
21
Id. p. 24.
22
Id. p. 36.
5
INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on an ineffective assistance of counsel claim, a defendant
must show: (1) “that counsel’s representation fell below an objective standard of
reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”23
There is a strong presumption that counsel’s legal representation was competent and
falls within the “wide range” of reasonable professional assistance.24 “The standard
for judging counsel's representation is a most deferential one.” 25 Trial counsel
“observed the relevant proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the judge.”26 The
question is whether an attorney's representation amounted to incompetence under
“prevailing professional norms,” not whether it deviated from best practices or most
common custom.27 As such, mere allegations will not suffice; instead, a defendant
must make concrete allegations of ineffective assistance, and substantiate them, or
23
Strickland, 466 U.S. at 694.
24
Premo v. Moore, 562 U.S. 115, 122-23 (2011); also see Flamer v. State, 585 A.2d 736, 753-44
(Del. 1990) (citations omitted).
25
Premo, 562 U.S. at 122.
26
Id.
27
Id. (citing Strickland, 466 U.S. at 690).
6
risk summary dismissal.28 Deference must be given to defense counsel’s judgment
in order to promote stability in the process.29
To overcome the strong presumption that trial counsel provided competent
representation, the defendant must demonstrate that “counsel failed to act
reasonabl[y] considering all the circumstances” and that the alleged unreasonable
performance prejudiced the defense.30 The essential question is whether counsel
made mistakes so crucial that they were not functioning at the level guaranteed by
the Sixth Amendment, thereby depriving defendant of a fair trial.31
Because a defendant must prove both parts of an ineffectiveness claim, a court
may dispose of a claim by first determining that the defendant cannot establish
prejudice.32 The first consideration in the “prejudice” analysis “requires more than
a showing of theoretical possibility that the outcome was affected.”33 “It is not
enough to ‘show that the errors had some conceivable effect on the outcome of the
proceeding.’”34 Defendant must show a reasonable probability of a different result
(i.e., acquittal) but for trial counsel’s alleged errors.35
28
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
29
State v. Fithian, 2016 WL 3131442 at * 3 (Del. Super. May 25, 2016) (citing Premo, 562 U.S.
at 120-122).
30
Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 688).
31
Id.
32
Strickland, 466 U.S. at 697.
33
Frey v. Fulcomer, 974 F.2d 348, 358 (3rd Cir. 1992).
34
Harrington v. Richter, 131 S.Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at 693).
35
Strickland, 466 U.S. at 695.
7
In any motion for postconviction relief, this Court must first determine
whether a defendant has satisfied the procedural requirements of Superior Court
Criminal Rule 61 before giving consideration to the merits of the underlying
claims.36 Rule 61(i)(1) prohibits the Court from considering a motion for
postconviction relief unless it is filed within one year after the judgment of
conviction is final.37 Rule 61(i)(2) prohibits the filing of repetitive motions for
postconviction relief, unless: under Rule 61(d)(2)(i), the movant “pleads with
particularity that new evidence exists that creates a strong inference” of actual
innocence; or, under Rule 61(d)(2)(ii),“that a new rule of constitutional law, made
retroactive to cases on collateral review,” applies to the movant’s case.38
Rule 61(i)(3) provides that “any ground for relief that was not asserted in the
proceedings leading to the judgment of conviction, as required by the rules of this
Court, is thereafter barred, unless the movant shows (a) cause for relief from the
procedural default and (b) prejudice from the violation of movant’s rights.”39
36
Taylor v. State, 32 A.3d 374, 388 (Del. 2011) (quoting Shelton v. State, 744 A.2d 465, 474 (Del.
1999)).
37
Super. Ct. Crim. R. 61(i)(1). A judgment of conviction is final “when the Supreme Court issues
a mandate or order finally determining the case on direct review.” State v. Drake, 2008 WL
5264880, at *1 (Del. Super. Dec. 15, 2008). Rule 61(i)(1) also affords a Defendant an opportunity
to present a motion which “asserts a retroactively applicable right that is newly recognized after
the judgment of conviction is final, more than one year after the right is first recognized by the
Supreme Court of Delaware or by the United States Supreme Court.” Id. Because Defendant has
not claimed a newly recognized retroactively applicable right applies to this second postconviction
motion, this exception is inapplicable.
38
Super. Ct. Crim. R. 61(i)(2).
39
Super. Ct. Crim. R. 61(i)(3).
8
Rule 61(i)(4) provides that “[a]ny ground for relief that was formerly
adjudicated, whether in the proceedings leading to the judgment of conviction, in an
appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is
thereafter barred.”40
Rule 61(i)(5) provides that the procedural bars provided in Rules 61(i)(1)-(4)
do not apply to a claim that the Court lacked jurisdiction or if the Defendant satisfies
the pleading requirements of Rule 61(d)(2)(i) or (d)(2)(ii).41
Defendant’s present Motion for Postconviction Relief was filed on January
12, 2023.42 Defendant’s judgment of conviction became final on July 23, 2021 when
the Delaware Supreme Court issued its mandate.43 Pursuant to Rule 61(i)(1),
Defendant’s Motion was filed more than one year after the Delaware Supreme Court
issued its mandate, and is time-barred. Moreover, Defendant has failed to allege any
facts implicating the exception to Rule 61(i)(1)’s procedural bar.44 Pursuant to Rule
61(i)(1), Defendant’s untimely Motion is procedurally barred.
Defendant’s Motion is also procedurally barred as repetitive pursuant to Rule
61(i)(2), as this is Defendant’s second postconviction Motion. Defendant could
40
Super. Ct. Crim. R. 61(i)(4).
41
Super. Ct. Crim. R. 61(i)(5).
42
DI 82.
43
DI 80. Mandate of the Delaware Supreme Court.
44
Super. Ct. Crim. R. 61(i)(1). To avoid the procedural bar, Defendant must “allege facts
supporting a claim that there exists a retroactively applicable right that is newly recognized after
the judgment of conviction was final, more than one year after the right was first recognized by
the Delaware Supreme Court or the U.S. Supreme Court.” Id.
9
potentially overcome this procedural bar by demonstrating the Motion satisfies the
pleading requirements of Rule 61(i)(2), but Defendant has failed to plead with
particularity that new evidence exists which creates a strong inference that he is
factually innocent,45 and he has not pled with particularity a claim that a new rule of
constitutional law, made retroactive to cases on collateral review by the Delaware
Supreme Court or the U.S. Supreme Court, applies to his case and renders his
conviction invalid.46 Because Defendant has not met the exacting pleading standards
of Rule 61(i) and Rule 61(d)(2), this second postconviction Motion is procedurally
barred as repetitive.
Defendant’s Motion is also procedurally defaulted pursuant to Rule 61(i)(3),
as all of his present claims, except for his claims that the jury instructions were
deficient, and that trial counsel should have filed for a Bill of Particulars, were not
asserted in the proceedings leading to the judgment of conviction.47 Defendant has
failed to explain why he failed to timely raise these claims, and he has not pled
specific prejudice from the failure to do so.48
45
Id.
46
Super. Ct. Crim. R. 61(i)(2); Super. Ct. Crim. R. 61(d)(2)(i)-(ii).
47
Defendant raised the deficient jury instruction claim in the points raised in direct appeal to the
Delaware Supreme Court, and the Bill of Particulars claim in his first motion for postconviction
relief.
48
See Super. Ct. Crim. R. 61(i)(3)(A) and Super. Ct. Crim. R. 61(i)(3)(B).
10
Pursuant to Rule 61(i)(4), Defendant’s jury instruction and bill of particulars
claims are procedurally barred because they were formerly adjudicated on direct
appeal and in the first Motion for Postconviction Relief.49
Finally, the Defendant could potentially have avoided the applicability of the
procedural bars in Rule 61(i)(1)-(4) if he presented valid claims (1) asserting that the
Court lacked jurisdiction or he (2) pled with particularity that (a) new evidence exists
that creates a strong inference that Defendant is innocent in fact of the charged
offenses, or that (b) a new rule of constitutional law made retroactive on cases on
collateral review by the United States Supreme Court or the Delaware Supreme
Court applies to his case and makes his conviction invalid.50 Defendant has not
argued the applicability of Rule 61(i)(5) and Rule 61(d)(2) to avoid the procedural
bars noted supra, and his motion is procedurally barred as untimely and repetitive.
As a result of Defendant’s failure to overcome Rule 61(i)’s procedural bars, I
recommend Defendant’s claims be summarily dismissed.
Despite the procedural bars to Defendant’s Motion, I will briefly address the
merits of Defendant’s claims. As noted previously, Defendant’s claims are
overlapping and convoluted, and fail to demonstrate prejudice under Strickland’s
exacting standards.
49
See Hearne v. State, 2017 WL 6336910, at *3 (Del. Dec. 11, 2017); State v. Hearne, 2020 WL
7093407 (Del. Super. Dec. 4, 2020), aff’d Hearne v. State, 2021 WL 2826451 (Del. July 7, 2021).
50
See Super. Ct. Crim. R 61(d)(2).
11
Claim 1: Statute of Limitations.
Defendant argues that trial counsel was ineffective for “failing to realize that
13 charges of the indictment fell outside the time limitations.”51 Defendant’s
argument as to the applicability of the statute of limitations is misplaced, and the
offenses for which he was convicted were not time-barred.
Prior to July 15, 1992, the statute of limitations applicable to all felony
offenses committed in Delaware, except Murder, was five years.52 So, if committed
before 1992 (and Defendant’s crimes were not), all of the crimes for which the State
indicted the Defendant had a five-year statute of limitations.
On July 15, 1992, the General Assembly enacted the first of two amendments
to 11 Del. C. § 205 by amending § 205(e), which contained a “first disclosure”
clause. The version of § 205(e) implemented on July 15, 1992 provided:
(e) If the period prescribed by subsection (b) of this section has expired,
a prosecution for any sexual offense in which the accused acts include
or constitute any of those crimes delineated in §§ 767-768 and § 1108
of this title where the victim of such sexual offense was a child under
the age of 18, at the time of its occurrence, such prosecution may be
commenced within 2 years following an initial disclosure to the
Delaware Division of Child Protective Services or to an appropriate
law enforcement agency.53
51
DI 82, Motion for Postconviction Relief, p. 4.
52
Hoennicke v. State, 13 A.3d 744, 746 n. 1 (Del. 2010) (citing 11 Del. C. §205(b)(1)).
53
Bryant, 2001 WL 433452, at *1 (quoting 11 Del. C. § 205(e)). (emphasis added).
12
As indicated, the first disclosure clause was a tolling provision which permitted the
prosecution of sexual offenses after the expiration of the five-year statute of
limitations period if the prosecution commenced within two years of the minor
victim’s initial disclosure to Child Protective Services or a law enforcement
agency.54
Approximately eleven years later, on June 24, 2003, the General Assembly
amended 11 Del. C. § 205(e) a second time, striking the text of § 205(e) and
replacing it with its current version. The current version of 11 Del. C. § 205(e), in
effect since June 24, 2003, provides as follows:
(e) Notwithstanding the period prescribed by subsection (b) of this
section, a prosecution for any crime that is delineated in § 787 of this
title and in which the victim is a minor, subpart D of subchapter II of
Chapter 5 of this title, or is otherwise defined as a “sexual offense” by
§ 761 of this title except § 763, § 764 or § 765 of this title, or any attempt
to commit said crimes, may be commenced at any time. No prosecution
under this subsection shall be based upon the memory of the victim that
has been recovered through psychotherapy unless there is some
evidence of the corpus delicti independent of such repressed memory.
This subsection applies to all causes of action arising before, on or after
July 15, 1992, and to the extent consistent with this subsection, it shall
revive causes of action that would otherwise be barred by the section.55
In 2010, the Delaware Supreme Court considered the applicability of the
statute of limitations as it applied to sexual offenses in Hoennicke v. State.56 In
54
Hoennicke, 13 A.3d at 746.
55
11 Del. C. § 205(e) (emphasis added).
56
Hoennicke v. State, 13 A.3d 744 (Del. 2010).
13
Hoennicke, the defendant was alleged to have committed a series of sexual assaults
on his minor son between 1988 and 1992. Hoennicke’s son did not report the sexual
assaults committed by his father to the Delaware State Police until 2009.57 In
considering Hoennicke’s statute of limitations claim, the Delaware Supreme Court
concluded the State’s ability to prosecute Hoennicke “was still within the two year
‘extended disclosure’ limitations period of the previous subsection (e) because [the
victim] had not yet disclosed Hoennicke’s alleged misconduct.” 58 And, because
Hoennicke’s son did not disclose the sexual abuse committed by his father until the
2003 amendments to § 205(e) became operable, the Court concluded “the 2003
amendments clearly extended the previous limitations period of two years after
reporting, to an unlimited period.”59
Here, the twenty-one count Indictment alleges Defendant sexually abused the
minor victim beginning in January 2003, up to late 2012. The Indictment alleges the
Defendant committed Unlawful Sexual Contact Second Degree upon the minor
victim from January 2003 through December 2004.60 All other indicted crimes,
including all Rape First Degree charges, were alleged to have occurred on or after
January 1, 2004.61 Like the defendant in Hoennicke, Defendant’s prosecution was
57
Id. at 745.
58
Id. at 746.
59
Id. at 747 (emphasis added).
60
See Indictment, Counts I-IV. The Jury acquitted Defendant of Counts III and IV.
61
See Indictment, Counts V-XXI.
14
not time-barred on the date of the 2003 amendment that extended the limitations
period indefinitely, because Defendant’s minor daughter had not yet reported the
abuse to any law enforcement agency.62 Therefore, the indefinite extension of the
statute of limitations by the 2003 amendment to 11 Del. C. § 205(e) applies, and
Defendant’s statute of limitations argument is misplaced - all of the crimes for which
the jury found the Defendant guilty were not time-barred, as the State could have
commenced them “at any time.”63
Hearne also argues that the State was required to include in the Indictment
language consistent with the tolling provision in 11 Del. C. § 205(e), namely that the
prosecution was not based on the memory of the victim that had been recovered
through psychotherapy without some additional evidence of the corpus delicti
independent of the victim’s repressed memory. Hearne asserts that trial counsel’s
failure to “subject [the] indictment to scrutiny for any defects shows ineffective
assistance of counsel.” Hearne’s argument is misplaced.
As alleged in the Indictment, Counts I-IV are the only counts which allege
conduct which may have occurred prior to the 2003 amendments to § 205(e), and
the jury did not find the Defendant guilty of Counts III and IV. A review of the
Indictment reveals the State did not address this tolling provision in the Indictment.
62
See Hoennicke, 13 A.3d at 747.
63
See 11 Del. C. § 205(e).
15
In Counts I-IV, Defendant’s unlawful sexual contact of his minor daughter is alleged
to have occurred on or between January 1, 2003 through December 31, 2004.64
Therefore, the first four counts of the Indictment (Unlawful Sexual Contact Second
Degree in violation of 11 Del. C. § 768) may have been subject to the five-year
statute of limitations in effect as a result of the 1992 amendment to § 205(e), if they
occurred prior to June 24, 2003.65 The State could commence prosecution of the
remaining counts of the Indictment which were alleged to have occurred after June
24, 2023 “at any time,” as those offenses (Counts V-XXI) were subject to an
unlimited limitations period.
The tolling provision upon which Defendant relies is an anomaly. It imposes
a specific burden of proof upon the State if it seeks to prosecute a defendant based
on the admission of a victim’s psychotherapeutically refreshed testimony. If the
State does so, they are also required to produce evidence supporting the corpus
delicti independent of the victim’s psychotherapeutically refreshed testimony to
satisfy its burden of proof. The tolling provision is not triggered by an event in
time, and it remains inert if the State does not rely on a victim’s
psychotherapeutically refreshed testimony. Unlike this tolling provision, other
64
All remaining indicted offenses, Counts V-XXI, were alleged to have occurred no earlier than
January 1, 2004.
65
Because the evidence presented at trial did not specify dates on which the first four counts of
the Indictment occurred, the Court will presume, for the sake of argument, they occurred in the
relevant time period of January 1, 2003 through June 24, 2003.
16
tolling provisions found in 11 Del. C. § 205 are connected to a time limitation – for
example, if a defendant had not been prosecuted within five years of the commission
of a sexual offense, the tolling provision of the former version of § 205(e) suspended
the running of the statute of limitations, and required the State to prosecute a
Defendant within two years of disclosure to the Delaware Division of Child
Protective Services or a law enforcement agency.
The purpose of a tolling provision is to suspend the running of the statute of
limitations. Here, all crimes Defendant committed after June 24, 2003, are subject
to an unlimited statute of limitations. And if the limitations period is “unlimited,”
there is no purpose for a tolling provision – the provision does not become operative
because there is no limitations period to toll.66 Therefore, Defendant’s claim as to
any charged offense alleged to have occurred after June 24, 2003 does not constitute
an actual controversy. The tolling provision only applies to pre-2003 offenses
previously subject to a five-year statute of limitations, i.e., Counts I-IV of the
Indictment. And, Counts III and IV resulted in not guilty jury verdicts.
Defendant cannot demonstrate prejudice under Strickland – a reasonable
probability of a different result at trial - from counsel’s failure to object to the State’s
66
See Huffman v. State, 2015 WL 4094234, at *3 (Del. July 6, 2015) (“We concluded [in
Hoennicke] that the unlimited statute of limitations period as applied to appellant’s offenses did
not violate the Ex Post Facto Clause because it simply extended the statute of limitations and did
not revive a prosecution where the statute of limitations had already expired.”)
17
omission of the tolling provision in the Indictment. Even if counsel successfully
objected to those counts, the same objection would not have applied to Counts V-
XXI, and the Defendant was sentenced to seven life sentences without the possibility
of release for the Rape First Degree convictions, plus more than eighty years of
incarceration on the remaining convictions.67 Because Defendant is unlikely to serve
out the seven life sentences, his claim does not present an “actual controversy.”68
Moreover, Defendant suffered no prejudice. The record reflects the State’s
evidence presented at trial was not solely based upon a memory of the victim
recovered through psychotherapy. The record reflects that the victim’s disclosure
of sexual abuse was a delayed report of a series of sexual assaults which Defendant
perpetrated over almost a decade, and her testimony was corroborated, at least in
part, by several other State’s witnesses. There is no record evidence that the
prosecution was solely based upon a memory of the minor victim recovered through
psychotherapy, and as discussed supra, there was additional circumstantial and
corroborating evidence produced by the State at trial to establish corpus delicti
sufficient to support Defendant’s convictions.
67
DI 36, Sentence Order.
68
See Govan v. State, 2003 WL 22227548, at *1 (Del. Sept. 24, 2003), State v. Govan, 2010 WL
3707416 (Del. Super. Aug. 31, 2010).
18
Claim 2: Victim’s memory was recovered through psychotherapy.
Defendant next claims the minor victim’s memory was recovered through
psychotherapy, and as a result the State was required to produce “some evidence of
the corpus delicti independent of such repressed memory.”69 Defendant argues the
State failed to produce evidence beyond the victim’s psychotherapeutically
recovered memory. Defendant’s argument is not supported by the record.
There is no evidence to support Defendant’s claim that the minor victim’s
memory was recovered through psychotherapy, and the Defendant has not identified
any testimony or evidence to support his claim. The minor victim’s uncontradicted
trial testimony is that she discussed the sexual abuse she suffered at the hands of the
Defendant in early 2016, when she made a disclosure to her then-boyfriend.70
Specifically, when asked why she did not say anything about the sexual abuse, she
testified as follows:
It was – I was just it was my dad, like, it was just, like, weird, like, I
knew it wasn’t supposed to happen, but it was still my dad. I didn’t say
anything until, like, it was just as I got older it started to bother me more
and more. I finally, like, when I broke down, told my boyfriend at that
time, and like, ever since then I had told him he was always encouraging
me to tell someone, So I finally did.71
69
See 11 Del. C. § 205(e).
70
DI 32, Jan. 20, 2017 Trial Transcript, p. 23, l. 19 – p. 24, l. 11.
71
Id., p. 58. L. 6-14.
19
Her boyfriend then encouraged her to tell someone else, and she then disclosed the
sexual abuse to her mother.72 Her mother then made her an appointment to speak to
a therapist, and the victim was eventually interviewed by the New Castle County
Police in the spring of 2016.73 There is no record evidence which supports
Defendant’s claim the minor victim’s memory was recovered through
psychotherapy, and the State produced additional circumstantial and corroborative
evidence to satisfy the corpus delicti.74
Claim 3: Inadequate Jury Instructions.
Defendant’s jury instruction claim is premised on the same facts as the Statute
of Limitations argument—that there was a defect in the Indictment which required
the State to include an additional element as to certain charged offenses. Defendant
carries this argument through to the jury instructions, but here he argues counsel was
ineffective for failing to request the Court amend the jury instructions to specifically
reference the tolling provision of the 2003 version of 11 Del. C. § 205(e).
Defendant’s claim lacks record support and he cannot demonstrate prejudice,
because the victim’s testimony was not recovered through psychotherapy, and the
72
Id.
73
Id., p. 89, l. 1-9.
74
On cross-examination, Defendant’s counsel elicited testimony from the minor victim that she
had been seeing therapist to address “disagreements” between the minor victim and her mom, but
the minor victim specifically testified she first disclosed Defendant’s sexual abuse to her mom,
who then informed the therapist of the sexual abuse. See DI 32, Trans. P. 89, l. 23 – p. 91, l. 22.
There is no record testimony that the minor victim’s testimony was recovered through
psychotherapy.
20
State produced evidence to satisfy the corpus delicti. And, Defendant’s jury
instruction claim was considered and rejected by the Delaware Supreme Court on
direct appeal. In considering Defendant’s claim on direct appeal, the Delaware
Supreme Court conducted an independent review of the jury instructions and
subsequently opined:
“[W]e reviewed the jury instructions for reversible error and found
none. The jury instructions provided the jury with a correct statement
of the law and a full explanation of the elements of each offense.”75
Defendant’s claim is unavailing.
Claim 4: Counsel lacked knowledge of the law and failed to prepare a viable
defense; failure to consult an expert; failure to consider alternative defenses.
Defendant presents factually unsupported accusations – counsel didn’t
understand the rules and principles of court; counsel did not obtain a bill of
particulars; counsel failed to investigate and enlist the assistance of an expert; and
counsel failed to consider alternative defenses. But, Defendant does not identify
how any of counsel’s alleged failures prejudiced his defense. He does not identify
which court rules counsel did not understand. He does not identify a specific
defense, or identify an expert witness whose testimony would have resulted in an
acquittal – demonstrating Defendant was actually innocent of the charged offenses.
A defendant must make specific allegations of actual prejudice and substantiate them
75
Hearne, 2017 WL 6336910, at *3.
21
or risk summary dismissal.76 Defendant’s bald accusations of ineffective assistance
of counsel do not establish prejudice. Defendant’s claim is meritless.
Claim 5: Insufficient Evidence
Defendant claims the evidence was insufficient to sustain a conviction. He
argues the minor victim’s memory was “recovered through psychotherapy” and the
State failed to present “some evidence of the corpus delicti independent of such
repressed memory.”77 Defendant argues “none of the evidence presented during the
trial can corroborate any elements of the crimes that were brought against the
Defendant by indictment.”78
When a defendant challenges the sufficiency of the evidence, this Court
considers whether a rational trier of fact viewing the evidence in the light most
favorable to the prosecution could find, beyond a reasonable doubt, the existence of
every element of the crimes charged.79 In the context of sexual assault prosecutions,
“[i]t is well settled law that a victim’s testimony concerning alleged sexual contact
alone is sufficient to support a jury’s verdict. There is no requirement that
testimonial evidence be corroborated either by physical evidence or corroborating
testimony.”80
76
Outten v. State, 720 A.2d 547, 552 (Del. 1998), (citing Wright v. State, 671 A.2d 1353, 1356
(Del. 1996), cert. denied 517 U.S. 1249 (1996).
77
DI 82, p. 27-28.
78
DI 82, p. 36.
79
Jenkins v. State, 2008 WL 4659805, *2 (Del. Oct. 22, 2008).
80
Hardin v. State, 840 A.2d 1217, 1224 (Del. 2003).
22
The State’s burden of proof is to prove a defendant’s guilt beyond a reasonable
doubt.81 To do so, the State must produce, at trial, “some credible evidence tending
to prove each element of the offense.”82 The Delaware Supreme Court has “never
precisely defined the specific quantum of independent evidence required by the State
to establish the corpus delicti.”83 As is noted above, the State can satisfy this burden
through the testimony of the minor victim. But, a review of the record in this case
demonstrates the State produced circumstantial and corroborative evidence at trial,
beyond the credible testimony of the Defendant’s minor victim, to support the jury’s
guilty verdicts.
The minor victim testified that she was sexually abused by her father
beginning around the ages of three or four years old.84 She recalled that at that time,
the Defendant brought her into the basement of their home in Stanton, Delaware and
took off all of her clothing and his pants.85 He rubbed her genitals with his hand and
made her touch his genitals.86 She recalled that the Defendant took her into the
basement on another occasion, began playing a “porno tape,” and “was touching me
and made me touch him.”87
81
11 Del. C. § 301(b).
82
11 Del. C. § 301(a).
83
Wright, 953 A.2d at 192-93 (quoting Bailey v. State, 2007 WL 1041748, at *3 (Del. Apr. 9,
2007)).
84
DI 32, Jan. 20, 2017 Trial Transcript, p. 24, l. 18 to p. 25, l. 3.
85
Id.
86
Id., p. 26, l. 3-15.
87
Id., p. 28, 8-21.
23
After a passage of time, and after the Defendant moved out of the Stanton
residence, the Defendant moved into his mother’s residence in Hockessin. The
victim, then aged five or six, recalled the following:
I would pretty much every night I stayed over, and everyone would go
to sleep. He would, like, I would stay down in the living room with
him, and he would just, like, do the same thing, but as I got older, like,
he would make me give him oral sex. He would give me oral sex.88
The victim indicated this sexual abuse would happen every time she stayed at her
grandmother’s house with Defendant.89 She recalled that around the time she turned
seven years old, the Defendant would “give her oral” and digitally penetrate her
vagina.90 He also would tell her she “did a good job last night” and told her not to
tell anyone, saying “you won’t tell anybody, right, this is our secret.”91
The victim recalled around the time she was in first grade, the Defendant
sexually assaulted her in his bedroom in her grandmother’s house.92 When the
Defendant moved into this house, the minor victim would sleep in the same bed as
the Defendant.93 When she was in the fourth or fifth grade, she recalled the
Defendant babysitting her at her mother’s residence, and “the whole night he was
just making me, like, give him oral sex, giving [her] oral sex.”94 On another
88
Id., p. 31, l. 10-15.
89
Id., p. 31, l. 16 to p. 32, l. 22.
90
The victim performed oral sex on the Defendant at least twenty times. DI 32, p. 36, l. 6-10.
91
Id., p. 34, l. 22 to p. 35, l. 6.
92
Id., p. 37, l. 17-19.
93
Id., p. 38, l. 5-11.
94
Id., p. 41, l. 11-14.
24
occasion, when she was seven or eight years old, she recalled the Defendant returned
from Tennessee to Delaware and was staying at a Red Roof Inn.95 Defendant took
her to the motel, and at the motel, the Defendant had her wear an adult bra and
women’s underwear – a white lace thong.96 She recalled being “so little [the bra and
panties] didn’t even fit.”97 At the Red Roof Inn the Defendant “had a friend [come]
over, and he brought some kind of drugs, then he was smoking it and, like, he tried,
like, he, like, lit it for me, like, I don’t think I inhaled it or anything, Then he, like,
touched me and stuff.”98
When asked if the victim recalled the Defendant recording her with a video
camera, she did not remember it, but she recalled one occasion in her grandmother’s
house, in Defendant’s bedroom, where she saw herself on a TV.99 She also recalled
seeing photographs of herself, naked, but did not specifically recall being video
recorded.100 She believed the Defendant had oral sex with her over fifty times,
assaulted her with a vibrator, and recalled several parking lots in New Castle County
where the Defendant would sexually assault her.101 The minor victim believed the
sexual abuse stopped when she was approximately twelve years old.102
95
Id., p. 42, l. 17-21.
96
Id., p. 44, l. 22.
97
Id., p. 42, l. 20-21.
98
Id., p. 43, l. 21 to p. 44, l. 2.
99
Id., p. 45, l. 8-10.
100
Id., p. 45, l. 8-21.
101
Id., p. 49, l. 6- p. 51, l.23.
102
Id., p. 52, l. 17-19.
25
Portions of the victim’s testimony were corroborated by the State’s trial
witnesses. Stephanie Digrerio, a former girlfriend of the Defendant, was living with
the Defendant in Tennessee when she found a videocassette in a vehicle which
contained video recordings of the victim around the ages of seven or eight, wearing
only adult woman’s underwear and a bra. According to Ms. Digrerio, Defendant
was recording the video, as she heard his voice asking the minor victim to turn
around on the recording.103 Ms. Digrerio recalled the minor victim was wearing
black thong underwear in the video.104
Ms. Digrerio then gave the video recording to the Defendant’s brother’s wife,
and a few days later Ms. Digrerio confronted the Defendant about the content of the
video.105 In response, the Defendant became apologetic, did not want Ms. Digrerio
to leave him, was sorry for what he did, and claimed it “was the drugs and that he
had no desire to ever do it again. And it was that one time.”106
Defendant’s brother, Thearon Hearne, testified that the Defendant came to
live with him in Tennessee around 2007.107 Thearon Hearne recalled that Ms.
Digrerio brought a VHS-type tape over to his house, and he viewed “moments of the
103
DI 35, Jan. 19, 2017 Trial Transcript, p. 34, l. 20-23.
104
Id., p. 35, l. 17.
105
Id., p. 37, l. 16-23.
106
Id., p. 38, l. 6-9. Ms. Digrerio also recalled a time when the Defendant stayed with his
children at a Red Roof Inn. Id., p. 41, l. 18-23.
107
Id., p. 113, l. 14-20.
26
tape.”108 After viewing two short portions of the recording, Thearon Hearne recalled
seeing the minor victim, his niece, “on all four positions on the bed, it was sort of,
with a face down on the bed.”109 The video also depicted his niece “wearing an adult
thong that clearly didn’t fit.”110 Thearon Hearne recognized the room where the
video was recorded as the master bedroom of his mother’s house in Delaware.111
When he confronted the Defendant about the video tape, the Defendant told him “I
never touched her. And I was drunk and high and I just made the film. And it was
a one-time thing.”112
The victim’s brother, Marcus Hearne, corroborated the victim’s testimony that
she and the Defendant repeatedly slept in the same bed. He explained it was
common that the Defendant and victim would “just go into his room and hang out,”
and they had “shared living arrangements” – they would sleep in the same bed or on
the couch together.113 Marcus remembered a time when the victim and Defendant
sleeping in the same bed when he stayed with his father and sister at “Dave’s house,”
and he needed to wake up the Defendant and victim, who were in the same bed in
the morning, because he was going to be late for school.114 He also recalled a time
108
Id., p. 117, l. 3-23.
109
Id., p. 120, l. 1-2.
110
Id., p. 120, l. 7-8; Id., p. 124, l. 3-11.
111
Id., p. 120, l. 15-23; p. 121, l. 121, l. 1. Thearon Hearne testified he destroyed the video
recording. Id., p. 122, l. 10-23.
112
Id., p. 123, l. 16-19.
113
Id., p. 162, l. 18 to p. 162, l. 17.
114
Id., p. 181, l. 17-23, p. 182, l. 19.
27
when the Defendant stayed at a Red Roof Inn in Delaware, and the victim spent the
night with Defendant at the motel.115 Marcus Hearne recalled Defendant repeatedly
asking the minor victim specific questions regarding whether she brought her panties
for visits.116
The minor victim’s testimony regarding the alleged sexual contact was alone
sufficient to form the basis of a conviction for all convicted offenses, and the
Defendant has failed to identify any offense resulting in a conviction where the
victim’s testimony did not establish every element of the offense. The jury found
the minor victim’s testimony credible, and the State’s other witnesses corroborated
portions of the minor victim’s testimony. Defendant’s sufficiency of the evidence
claim is unsupported by the record, and he cannot demonstrate prejudice.
CONCLUSION
Defendant’s second postconviction motion is procedurally barred. It is time
barred and repetitive. Moreover, two of Defendant’s claims are procedurally barred
as they were previously raised in his direct appeal or in his first postconviction
motion. The remaining claims are procedurally barred because Defendant failed to
present the claims during trial, on direct appeal, or in a prior postconviction
115
Id., p. 168, l. 14 to p. 169, l. 4.
116
Id., p. 174, l. 21 to p. 176, l. 1.
28
proceeding. The claims are also meritless, legally deficient and unsupported by the
trial record.
For all of the aforestated reasons, I recommend the Motion for Postconviction
Relief should be SUMMARILY DISMISSED.
IT IS SO RECOMMENDED.
/s/ Martin B. O’Connor
Commissioner Martin B. O’Connor
oc: Prothonotary
29
State v. Hearne
Combined Opinion