Burton v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MARVIN T. BURTON, §
§ No. 522, 2014
Defendant-Below, §
Appellant, § Court Below:
§ Superior Court of the State of
v. § Delaware
§
STATE OF DELAWARE, § Cr. ID. No. 0410003743
§
Plaintiff-Below, §
Appellee. §
Submitted: June 15, 2016
Decided: June 22, 2016
Before HOLLAND, VALIHURA, and SEITZ, Justices.
ORDER
This 22nd day of June, 2016, it appears to the Court that:
(1) A Superior Court jury convicted Marvin Burton of raping his eleven
year old daughter. Because Burton qualified as a habitual offender, the judge
sentenced Burton to two life terms in prison plus two years. We affirmed Burton’s
conviction on direct appeal. The victim then supposedly recanted her testimony
that Burton raped her. The Superior Court explored the truthfulness of the
recantation and denied postconviction relief because the victim’s recantation was
not credible. Burton then appealed from the Superior Court’s denial of his motion
for postconviction relief.
(2) In his reply brief on appeal in this Court, Burton noted that the State
was investigating whether a prosecutor promised the victim assistance in
addressing her own unrelated criminal conduct in exchange for her testimony at
Burton’s evidentiary hearing. Because of the seriousness of the allegation, we
remanded the case and retained jurisdiction to allow the Superior Court to make
factual findings on the issue.1 After two evidentiary hearings, the Superior Court
in a detailed decision found that the State did not promise the victim anything for
her testimony.2
(3) We have carefully reviewed the record on appeal, as supplemented by
further proceedings in the Superior Court. Burton’s appeal is essentially an
argument with the facts found by the Superior Court in all of its evidentiary
hearings. Because those facts are supported by the evidence, and we accord those
factual findings deference on appeal, we find that the Superior Court did not abuse
its discretion in denying Burton’s motion for postconviction relief. Accordingly,
we affirm.
(4) Burton sexually abused his eleven year old daughter after his release
from prison in 2003. In August, 2005, after a four-day trial where the victim
testified as the State’s primary witness, a jury convicted Burton of first and second
degree rape and second degree unlawful sexual contact. Burton qualified as a
1
Burton v. State, No. 522, 2014 (Del. June 29, 2015).
2
Burton v. State, Cr. ID No. 0410003743 (Del. Super. Oct. 28, 2015).
2
habitual offender due to prior burglary and rape convictions. The Superior Court
sentenced him to two life sentences plus two years. This Court affirmed Burton’s
convictions on direct appeal.3
(5) Burton filed his first motion for postconviction relief pro se on August
16, 2007. On June 3, 2008, the Superior Court denied Burton’s motion, finding no
merit to his ineffective assistance of counsel claim, and finding that his remaining
claims were procedurally barred.4 On appeal, with the assistance of counsel,
Burton filed new affidavits containing facts not previously considered by the
Superior Court directed to whether his trial counsel failed to call material
witnesses. In March 2009, we remanded to allow the Superior Court to consider
the new evidence, and limited the remand to consideration of Burton’s ineffective
assistance of counsel claim.5
(6) On remand, the Superior Court conducted an evidentiary hearing.
After completion of post-hearing briefing, but before the Superior Court decided
the motion, the victim told an interviewer at the Child Advocacy Center that she
had falsely accused Burton of having sex with her. The State told Burton about the
supposed recantation, and Burton then filed a motion to reopen and to supplement
the record of the evidentiary hearing. In June 2010, the Superior Court denied the
3
Burton v. State, 2006 WL 2434914 (Del. Aug. 21, 2006).
4
State v. Burton, 2008 WL 2359717 (Del. Super. June 3, 2008); see also Super. Ct. Crim. R.
61(i)(3).
5
Burton v. State, 2009 WL 537194 (Del. Mar. 4, 2009).
3
request as outside the scope of this Court’s remand order,6 and also found without
an additional evidentiary hearing that the recantation was not credible.7 We
affirmed the denial of Burton’s motion for postconviction relief.8
(7) In May 2013, Burton filed his second motion for postconviction relief,
which is the subject of this appeal. Burton argued to the Superior Court that his
convictions should be vacated and a new trial ordered because the victim had
recanted her testimony. The Superior Court held an evidentiary hearing on January
27, 2014. The victim was the only witness, and testified that her father did not
sexually abuse her. The Superior Court found that the victim’s testimony was not
credible, and denied the motion on August 27, 2014.9 Burton has now appealed
from the denial of his second motion for postconviction relief.
(8) In the first round of briefing on this appeal, Burton argued that the
Superior Court abused its discretion when it found that the victim’s recanted
testimony was not credible and denied his motion for postconviction relief. In
Burton’s reply brief, he noted for the first time that there may have been an
agreement in which the State promised the victim something in exchange for her
testimony at the January 27, 2014 hearing. The agreement, according to Burton,
arose out of discussions between the victim and the Attorney General’s office in
6
State v. Burton, Cr. ID No. 0410003743 (Del. Super. June 18, 2010).
7
State v. Burton, 2010 WL 3946275, at *17 (Del. Super. Sept. 30, 2010).
8
Burton v. State, 2011 WL 4342636 (Del. Sept. 15, 2011).
9
State v. Burton, 2014 WL 5468874 (Del. Super. Aug. 27, 2014).
4
connection with an eight year sentence the victim was serving for an unrelated
stabbing conviction. The victim supposedly thought she would receive a sentence
reduction in exchange for her testimony. Burton noted that the State was
investigating whether there was actually such an agreement.10 After learning this
information from Burton’s reply brief, we decided once again to remand to the
Superior Court to determine the merits of Burton’s new argument.
(9) The Superior Court held additional evidentiary hearings on August 31,
2015 and September 9, 2015. The court heard the testimony of the victim, her
counsel, the prosecutor, and the prosecutor’s assistant. The Superior Court
concluded that the State “made no representations to the victim’s counsel regarding
the victim’s request for postconviction relief in exchange for the victim’s
testimony” before Burton’s January 27, 2014 evidentiary hearing.11 The parties
then filed supplemental briefs in this Court, where Burton argued that the Superior
Court also erred in finding that there had been no agreement between the State and
the victim.
(10) We address in this appeal the merits of Burton’s argument made to
this Court in 2014 as well as his new contention that the Superior Court abused its
discretion in connection with the factual findings it made on remand. The Court
10
On March 10, 2015, Burton became aware of a letter that the victim sent to the prosecutor on
November 7, 2014, in which she expressed that she had not received the “relief on [her]
conviction” that she believed she had been promised in exchange for her testimony in Burton’s
postconviction proceedings.
11
State v. Burton, Cr. ID No. 0410003743, at *1 (Del. Super. Oct. 28, 2015).
5
reviews the Superior Court’s decision to deny postconviction relief for abuse of
discretion.12 We address each of Burton’s arguments in turn.
(11) Burton first argues that the Superior Court incorrectly concluded after
examining the evidence that the victim provided false testimony at trial. Our
standard of review for a motion for postconviction relief, and especially as applied
to the Superior Court’s factual determinations as part of the motion, is
deferential.13 We will only disturb the Superior Court’s findings if they are not
based on competent evidence or are clearly erroneous.14 In the specific context of
allegedly recanted testimony, the Superior Court will grant a new trial or other
appropriate relief if: (1) it is reasonably well satisfied that the testimony of a
material witness is false; (2) without the testimony the jury might have reached a
different conclusion; and (3) the party seeking the new trial was taken by surprise
when the false testimony was given and was unable to meet it or did not know of
its falsity until after the trial.15
(12) The Superior Court was not “reasonably well satisfied” that the
victim’s trial testimony was false. Burton asks this Court to re-weigh the evidence
12
Neal v. State, 80 A.3d 935, 941 (Del. 2013).
13
See Flamer v. State, 585 A.2d 736, 754 (Del. 1990) (“[B]ecause the Superior Court . . . had the
opportunity to hear the evidence, evaluate the credibility of the witnesses, and review the
transcripts of the prior proceedings, this Court will not upset its findings unless an abuse of
discretion is evident.”).
14
See Burrell v. State, 953 A.2d 957, 960 (Del. 2008) (“A deferential standard of review is
applied to factual findings by a trial judge. Those factual determinations will not be disturbed on
appeal if they are based upon competent evidence and are not clearly erroneous.”).
15
Weedon v. State, 750 A.2d 521, 528 (Del. 2000).
6
and conclude that the victim’s trial testimony was false. In support, he emphasizes
the victim’s testimony in which she recanted her trial testimony, but ignores the
places in the record where she contradicted her recantation16 as well as the other
factors that supported the Superior Court’s decision. The court determined that the
victim’s recantation was not credible because there was record evidence that she
was pressured into recanting by various relatives, she admitted that she was
motivated to recant by the belief that her father had served enough time, and she
made numerous inconsistent statements that were irreconcilable, destroying her
credibility.17 Burton therefore failed to show that the victim’s testimony at trial
was false. As this conclusion was based on competent evidence in the record and
not clearly erroneous, the Superior Court did not abuse its discretion, and Burton’s
argument is without merit.
(13) Next, Burton contends that the Superior Court abused its discretion
when it determined that there was no tacit agreement between the State and the
victim. Once again, Burton asks this Court to disturb the Superior Court’s factual
findings. The victim did testify that the prosecutor promised her that if she gave
the same testimony in the January 27, 2014 evidentiary hearing that she gave at
Burton’s trial, he would help her get her sentence reduced for the unrelated
16
E.g., App. to Opening Br. at 41–42 (“Q: Did you tell [the prosecutor] that [Burton] did not
have sex with you? A: Yes. Q: Okay. And was that the truth? A: Was it—no.”); id. at 58–59;
App. to Answering Br. at 33 (“She felt like I was the reason my dad touched me . . . .”)
(emphasis added).
17
Burton, 2014 WL 5468874, at *2–6.
7
stabbing crimes.18 The victim’s counsel also testified that she believed there was a
“tacit agreement” that the prosecutor would “go to bat for” the victim if the victim
testified as she did at Burton’s trial.19 But the prosecutor and his assistant gave
contradictory testimony, and disclaimed any agreement.20 The Superior Court
concluded that there was no agreement after considering (1) the likelihood that
sympathy for the victim that the prosecutor expressed to the victim’s counsel was
misinterpreted as a “tacit agreement” to help her,21 (2) the lack of references to an
agreement in the record, (3) the fact that the victim had no pending motions before
the Superior Court at the time the prosecutor allegedly made the agreement to
assist with such motions, (4) the unethical nature of the agreement and the
presumption that Delaware attorneys would not enter into such an agreement, and
(5) the victim’s total lack of credibility contrasted with the prosecutor’s
credibility.22
(14) The Superior Court’s finding that there was no tacit agreement has
support in the record and is not clearly erroneous.23 Burton’s supplemental brief
focuses on the undesirability of secret agreements between the State and witnesses,
18
State v. Burton, Cr. ID No. 0410003743, at *5–6 (Del. Super. Oct. 28, 2015).
19
Id. at *1–2.
20
Id. at *6–9.
21
The Superior Court concluded that misinterpreted sympathy was the most likely source of the
victim’s counsel’s belief that she entered into a tacit agreement with the prosecutor. The
prosecutor was the same deputy attorney general who had originally prosecuted Burton, and was
very familiar with the victim and the troubled life she had led.
22
State v. Burton, Cr. ID No. 0410003743, at *9–14.
23
See Burrell, 953 A.2d at 960; Flamer, 585 A.2d at 754.
8
and this Court is aware of the dangers of agreements of this nature.24 But our
review here is limited to whether the Superior Court abused its discretion in
making the factual determination that there was no tacit agreement between the
State and the victim. Accordingly, Burton’s arguments that the Superior Court
erred in denying his motion for postconviction relief and in finding that there was
no tacit agreement between the State and the victim are without merit.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
24
See Jackson v. State, 770 A.2d 506, 514 (Del. 2001) (noting the “the troubling nature” of
implicit promises of leniency in exchange for the testimony of witnesses).
9