State v. Hearne ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE
No. 1605006649
Vv.
ROBERT HEARNE,
New! Nee’ Nee Nee Ne Ne ee”
Defendant.
Submitted: September 10, 2020
Decided: December 4, 2020
Upon Defendant’s Motion for Postconviction Relief: Denied
ORDER
This 4th day of December, 2020, upon consideration of the Amended Motion
for Postconviction Relief (the “Motion”) filed on behalf of Defendant Robert Hearne
(“Defendant”), the State’s response thereto, the record on this matter, and the
applicable legal authorities, including Rule 61 of the Superior Court Rules of
Criminal Procedure (“Rule 61”), it appears to the Court that:
FACTUAL AND PROCEDURAL BACKGROUND
l. In 2016, the Delaware Division of Family Services reported a possible
case of child sexual abuse to the New Castle County Police Department.! Detective
Charles Levy interviewed the child involved, Theresa, who told him that her father
had abused her sexually over an eight-year period.” Detective Levy conducted an
! Hearne y. State, 2017 WL 6336910, at *1 (Del. Dec. 11, 2017).
* Id. at *1. The victim’s name has been changed for privacy reasons.
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investigation that led to Defendant’s indictment on more than twenty sexual
offenses.’ On June 20, 2016, a grand jury indicted Defendant on the following
charges: six counts of Unlawful Sexual Contact First Degree, eight counts of Rape
First Degree, one count of Continuous Sexual Abuse of a Child, two counts of Sexual
Abuse by a Person in a Position of Trust Second Degree, one count of Dangerous
- Crime Against a Child, and one count of Sexual Exploitation of a Child.* On January
9, 2017, Defendant was re-indicted to reflect various statutory changes that took
effect over the period of the abuse.’ The revised charges in the reindictment were:
five counts of Unlawful Sexual Contact Second Degree, two counts of Unlawful
Sexual Contact First Degree, eight counts of Rape First Degree, two counts of
Continuous Sexual Abuse of a Child, one count of Sexual Abuse by a Person in a
Position of Trust First Degree, two counts of Dangerous Crime Against a Child, and
one count of Sexual Exploitation of a Child. The date ranges of the abuse did not
change substantially between the indictment and reindictment, ranging from January
2003 to December 2012.”
a At trial, Defendant was represented by Raymond Armstrong, Esquire
(“Trial Counsel”). After a five-day trial, the jury convicted Defendant of seven
3 Td. at *1.
* Appx. to Def.’s Mot. at A013-A020.
> State’s Resp. at 2.
® Appx. to Def.’s Mot. at A025-A032.
” Id. at A025-A032.
counts of Rape First Degree, four counts of Unlawful Sexual Contact Second
Degree, and one count each of Continuous Sexual Abuse, Sexual Abuse of a Child
by a Person in Position of Trust Second Degree, Dangerous Crime Against a Child,
and Unlawful Sexual Contact First Degree.* The Court sentenced Defendant to
seven life sentences plus ninety-five years at Level V.’
BR The Delaware Supreme Court affirmed Defendant’s convictions on
direct appeal.'° Defendant then filed a timely pro se motion for postconviction relief,
and counsel was appointed to represent Defendant for purposes of the motion.!! On
January 16, 2020, Defendant filed through counsel his Amended Motion for
Postconviction Relief (“the Motion”).!?_ In the Motion, Defendant argues he is
entitled to postconviction relief on the grounds that Trial Counsel was ineffective in
not moving for a bill of particulars, which violated Defendant’s rights under the
Sixth and Fourteenth Amendments.
ANALYSIS
4. Before addressing the merits of any claim for postconviction relief, this
Court first must determine whether the motion procedurally is barred under Rule
8 Corrected Sentence Order at 2-4.
° Hearne, 2017 WL 6336910, at *1.
10 Td. at *4.
11 Def.’5 Am. Mot. at 2-3.
12 Td. at 3.
61.'° A motion for postconviction relief may be barred for timeliness and repetition,
among other things. A Rule 61 motion is untimely if it is filed more than one year
after a final judgment of conviction.'* For a defendant who files a direct appeal, this
period accrues when the appeal process is complete.!? A defendant also is barred
from filing successive motions for relief under the rule.'!® Rule 61 further prohibits
motions based on any ground for relief that was not asserted in the proceedings
leading up to the judgment of conviction, unless the movant demonstrates “[c]ause
for relief from the procedural default” and “[p]rejudice from violation of the
movant’s rights.”!” Finally, the Rule bars consideration of any ground for relief that
previously was adjudicated in the case.'®
Dy, Notwithstanding the procedural bars, this Court may consider a motion
that otherwise is barred if the motion is based upon claims that the Court lacked
jurisdiction or the motion satisfies the pleading requirements set forth in Rule
61(d)(2).!? Rule 61(d)(2) requires that the movant plead with particularity that (i)
“new evidence exists that creates a strong inference that the movant is actually
13 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del.
1990).
14 Super. Ct. Crim. R. 61(i)(1).
1S Younger, 580 A.2d at 554.
16 Super. Ct. Crim. R. 61(i)(2); see Super. Ct. Crim. R. 61(d)(2)(i)-(i) (regarding the pleading
requirements for successive motions).
'7 Super. Ct. Crim. R. 61(i)(3)(A)-(B).
'8 Super. Ct. Crim. R. 61(4)(4).
19 Super. Ct. Crim. R. 61(i)(5).
innocent in fact of the acts underlying the charges of which he was convicted;” or
(ii) “a new rule of constitutional law, made retroactive to cases on collateral review
by the United States Supreme Court or the Delaware Supreme Court, applies to the
movant’s case and renders the conviction or death sentence invalid.””°
6. The parties do not dispute that Defendant’s Motion was filed in a timely
manner. Defendant’s convictions were affirmed by the Delaware Supreme Court on
December 11, 2017, and he filed his pro se Motion for Postconviction Relief on May
23, 2018. This is Defendant’s first motion for postconviction relief, and the Motion
therefore is not barred as successive. Defendant’s argument that Trial Counsel was
ineffective was not previously adjudicated and could not have been raised at an
earlier stage in the proceedings.” Accordingly, the Motion is not barred
procedurally. The Motion nonetheless must be denied because Defendant has failed
to prove the elements of an ineffective assistance of counsel claim.
A. Defendant’s claim for ineffective assistance of counsel fails because
Trial Counsel’s decision not to move for a bill of particulars was
reasonable.
7. To prevail on an ineffective assistance of counsel claim, a defendant
must establish both that counsel’s representation fell below an objective standard of
20 Super. Ct. Crim. R. 61(d)(2)(i)-(i).
21 Whittle v. State, 2016 W 12585904 (Del. Apr. 28); State v. Evans-Mayes, 2016 WL 4502303,
at *2 (Del. Super. Aug. 25, 2016). Although not a specific claim in his Motion, Defendant
alludes to an argument that the trial court erred by failing to give a unanimity instruction to the
jury. This argument could have been raised in Defendant’s direct appeal and it therefore is
barred.
reasonableness and that there is a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.” There is a strong
presumption that counsel’s representation was reasonable.”
Accordingly, mere
allegations or conclusory statements will not suffice.”4
8. Defendant’s Motion asserts Trial Counsel was ineffective by failing to
file a motion for a bill of particulars. In Delaware, a bill of particulars functions to
“supplement the information set forth in the indictment,” and “protect the defendant
against surprise during trial.””> When a defendant is unsure of what specific conduct
is being alleged to support each count in the indictment, the burden is on the
defendant to move for a bill of particulars.” When, as in this case, a defendant is
charged with several counts of the same offense, a bill of particulars may be
especially useful.?” But, a bill of particulars is limited to clarifying the allegations
against the defendant. It is not a discovery device intended to compel the State to
disclose evidentiary information.”®
9. Defendant alleges Trial Counsel was ineffective in failing to seek a bill
of particulars because it was unclear from the indictment what alleged incidents the
22 Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
23 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
24 Td. at 1356; Monroe v. State, 2015 WL 1407856, at *3 (Del. March 25, 2015).
25 Luttrell v. State, 97 A.3d 70, 76 (Del. 2014) (citing Lovett v. State, 516 A.2d 455, 467 (Del.
1986)).
26 Howard v. State, 2009 WL 3019629, at *4 (Del. Super. Sept. 22, 2009).
27 See Asbury v. State, 2019 WL 4696781, at *4 (Del. Sept. 25, 2019).
28 State v. Williams, 2018 WL 3211962, at *5 (Del. Super. June 29, 2018).
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State was using to support each charge.”? This argument is not persuasive in light of
the specific facts of this case, namely (i) the victim’s repeated, consistent pretrial
statements, all of which were disclosed to Trial Counsel, (ii) the manner in which
the indictment described the alleged sexual acts and (iii) Trial Counsel’s strategic
determination that a bill of particulars only would focus and strengthen the State’s
trial presentation.
10. First, unlike the cases on which Defendant relies, the victim in this case
gave a detailed statement to the police, which was reflected in the affidavit of
probable cause supporting Defendant’s arrest warrant and in written notes the victim
made. The affidavit of probable cause, witness statements, and victim notes all were
provided to Trial Counsel. These statements allowed Trial Counsel to match the
counts in the indictment to a specific alleged incident.*’ Conversely, in Luttrell v.
State, which Defendant cites, the defendant was charged with multiple counts of the
same general offense, and the victim’s statements repeatedly changed and did not
align with the dates in the indictment.*! The indictment in Luttrell also did not
contain sufficient facts to differentiate one count from others of the same type.*” The
Court found that, absent a bill of particulars, the defendant was not on notice of the
29 Def.’s Am. Mot. at 18-21.
30 Trial Counsel Aff. at 2.
31 Futtrell, 97 A.3d at 74, 77.
32 Td. at 77.
specific conduct with which he was being charged and could not prepare a proper
defense.*?
11. Luttrell is distinguishable from the record in this case. The State’s trial
summation clarified for both the jury and Defendant the precise trial testimony that
corresponded to each charged count. Specifically, the State explained to the jury the
Unlawful Sexual Contact Second Degree charges related to two specific incidents
that occurred when the victim was ages three and four and Defendant touched her
vagina and forced her to touch his penis, as well as another incident when she was
between four and six years old.*4 The State connected the Unlawful Sexual Contact
First Degree charge to an incident when the victim was between four and six years
old and Defendant forced her to touch his penis.*° And, the State explained that the
eight Rape charges corresponded to the victim’s testimony regarding four specific
occasions during which Defendant performed oral sex on the victim and forced her
to perform oral sex on him.°° Unlike in Luttrell, the State took several steps in this
case to clarify what conduct aligned with what charge and provided sufficient detail
for Defendant adequately to prepare his defense without a bill of particulars.
33 Td. at 77.
34 Trial Tr. 171-72, 175.
35 Td. at 172, 175.
36 Td, at 172, 175-77.
12. Second, and relatedly, the indictment also specified the particular
sexual act Defendant allegedly committed for each Unlawful Sexual Contact
charge.*” This further served to clarify the particular offenses with which Defendant
was charged. In comparison, in Dobson vy. State, on which Defendant relies, the
indictment contained identical date ranges and identical wording for six charges, and
the State never clarified which specific incident related to these charges.** The
indictment in Luttrell similarly used identical language to describe each count and
parroted the otherwise expansive statute.*
13. Finally, Trial Counsel’s decision to not request a bill of particulars in
this case was strategic. According to Trial Counsel’s affidavit, the defense strategy
at trial was to attack the victim’s credibility and the strength of her memory about
particular events.*° Trial Counsel was concerned, and Defendant agreed, that filing
any pretrial motions related to evidence would invite the State to better prepare the
victim concerning her prior statements and better prepare its own presentation to the
jury. The Court gives substantial deference to counsel’s strategic decisions.*!
14. This case factually is similar to State v. Williams, where trial counsel
made a strategic decision not to seek a bill of particulars because he believed it would
37 See Appx. to Def.’s Mot. at A024-A032.
38 Dobson v. State, 2013 WL 5918409, at *3 (Del. Oct. 31, 2013).
39 Luttrell, 97 A.3d at 73.
40 State’s Aff. at 1-2.
41 Td. at 4; see State v. Powell, 2016 WL 3023740, at *25 (Del. Super. May 24, 2016) (“Trial
counsel is afforded wide latitude in making strategic trial decisions . . . ”).
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not assist the defense.42 The court in Williams determined that, because trial
counsel’s failure to seek a bill of particulars was strategic, any failure to file
objectively was not unreasonable.*? Defendant attempts to distinguish Williams on
the basis that the State in Williams articulated which allegations corresponded with
which indictment count.44 As set forth above, however, the combination of the
indictment and pretrial discovery placed Defendant and his Trial Counsel on notice
of the specific conduct with which he was charged.
B. Defendant was not prejudiced by Trial Counsel’s decision not to seek a
bill of particulars.
15. Even if Trial Counsel’s decision to not seek a bill of particulars fell
below an objective standard of reasonableness, Defendant is not entitled to
postconviction relief because he has not demonstrated prejudice arising from the
absence of a bill of particulars. Prejudice is defined under Strickland as the
“reasonable probability that, but for counsel’s errors, the result of the proceeding
would have been different.’”*> Defendant must make specific allegations of prejudice
and substantiate them.”
16. Defendant does not meet this burden. A bill of particulars may be
helpful or even necessary in some cases involving multiple, similar counts, but it is
42 Williams, 2018 WL 3211962, at *5.
43 Td. at *5.
“4 Def.’s Reply at 7.
45 Strickland, 466 U.S. at 687-88 (emphasis added).
46 Wright, 671 A.2d at 1356; Monroe, 2015 WL 1407856, at *3.
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not necessary in every case, and the absence of a bill of particulars in any given case
does not lead inexorably to the conclusion that a defendant was prejudiced.*”
Although Defendant did not receive a bill of particulars in this case, the State
provided discovery along with the indictment and specifically addressed what
conduct correlated with what alleged crime.”
Defendant has not alleged any
particular facts that indicate the information provided by the State was insufficient
to put him on notice, nor has he shown how a bill of particulars would have remedied
such a problem. In contrast, the cases on which Defendant relies both involved
specific, identifiable instances of prejudice that Defendant has not raised in his
Motion. In both Dobson and Luttrell, the absence of a bill of particulars was linked
to the introduction into evidence of additional, uncharged crimes.” Accordingly,
Defendant has not shown that but for Trial Counsel’s failure to request a bill of
particulars, there is a reasonable probability he would not have been convicted at
trial.
47 See Dobson, 2013 WL 5918409, at *3 (failure to request a bill of particulars or otherwise
become informed through discovery of which acts corresponded to which crimes amounted to
ineffective assistance of counsel).
48 See FF 10-12, 14, infra.
49 Dobson, 2013 WL 5918409, at *3; Luttrell, 97 A.3d at 77-78, n.18.
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CONCLUSION
NOW, THEREFORE, IT IS ORDERED that Defendant’s Amended Motion
for Postconviction Relief is DENIED.
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