State v. Ward

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) I.D. No. 1806006562
)
PRESTON A. WARD )
)
Defendant. )
Submitted: November 1, 2021
Decided: February 23, 2022
OPINION
Upon Defendant, Preston Ward’s, Motion for Postconviction Relief,
DENIED
BACKGROUND AND PROCEDURAL HISTORY
On direct appeal, the Delaware Supreme Court, in its September 28, 2020
Order, made the following findings:
Ward and his wife, M.W., lived together in a three-bedroom home
along with their three children. The eldest, A.M., was M.W.’s
biological daughter and Ward's stepdaughter; the youngest two were
the Wards’ biological sons.
On Sunday, June 10, 2018, M.W. was awoken briefly between 5:00
and 6:00 a.m. by Ward, who asked her whether she had a dollar to put
1
under A.M.’s pillow. A.M. had lost a baby tooth the night before and
put the tooth under her pillow for the tooth fairy. The record indicates
that after speaking with her husband, M.W. fell back asleep. Sometime
later she was awoken by her 6-year old son who wanted her to fix
something on the TV. She told him to have his father do it, but the son
said Ward was at work. Knowing this could not be true because her
husband did not work on Sundays, M.W. got up and looked around for
her husband. While doing so, she noticed that A.M.’s bedroom door
was shut. This was unusual to her, as it was the custom in their home
to leave doors open. She opened the door. The room was still dark, but
M.W. saw her husband, wearing a t-shirt and underwear, laying on the
bed next to A.M. Ward immediately “jumped out” of A.M.’s bed and
fell. M.W. also saw A.M. pull up her pajama bottoms. M.W. began
screaming and yelling, and asked Ward what was going on. She
grabbed his genitals through his clothes and realized he was not
aroused. Ward told her, “See, I'm not hard.”
M.W. called her sister-in-law over to the house. When the sisterin-law
arrived, she told Ward he should leave. She and M.W. then took A.M.,
who was eleven years old at the time, to Christiana Hospital. At
Christiana Hospital, Anita Symonds, R.N., a forensic nurse examiner,
2
performed a sexual assault examination on A.M. As part of that
examination, Symonds took swabs of A.M.’s vaginal area. During the
examination, in response to Symonds’ questions, A.M. stated that Ward
had touched her vagina with his hand that morning. Symonds observed
no genital injuries on A.M., and A.M. indicated that she had no pain in
that area. Symonds testified during direct examination at Ward's trial
that, in her experience, less than 10 percent of potential victims of
sexual abuse have genital injuries, so it was not unusual that she did not
observe any injuries on A.M. This testimony is the subject of Ward's
third claim on appeal. Defense counsel did not object to Symonds’
testimony.
Christiana Hospital reported A.M.’s allegations of sexual abuse to the
New Castle County Police Department, which opened an investigation.
M.W. was instructed to take A.M. to A.I. DuPont
Hospital. Once there, A.M. was interviewed by Amy Kendall of the
Children's Advocacy Center (CAC). Kendall recorded her interview of
A.M. In the interview, A.M. told Kendall that Ward had touched her
vagina and had done so before. She had not said anything about the
prior incidents to her mother. She expressed concern that M.W. and
3
Ward would get divorced. She also told Kendall that the prior incidents had
started maybe a few months earlier and occurred less than once a week. She
said that she was eleven when all the incidents took place.
Police arrested Ward and collected a DNA sample from him.
Officers also collected swabs from A.M.’s bedsheets. Officers sent the swabs
taken at Christiana Hospital, the swabs from the bedsheets, and
Ward's DNA sample to the Division of Forensic Science in
Wilmington, Delaware, for testing. Testing was performed at the
Division of Forensic Science by Bethany Kleiser. She testified at trial
that she found that swabs from A.M.’s vagina and the swabs from the
bedsheets tested positive for male DNA. From the sample taken from
A.M.’s fitted sheet, she testified, “Preston Ward c[ould] ... be included
as [a] potential DNA contributor,” and the likelihood “of randomly
selecting an unrelated individual that c[ould] be included as a
contributor to the mixture ... in this case [i]s one in 76,980,000” or
“about 76 Delawares [sic] as far as the amount of people in order to
find another person included in this mixture.” She also testified that the
sample taken from the fitted sheet had a “strong positive reaction” to a
Brentamine test, a test specifically designed to test for the presence of
seminal fluid. While she could not definitively say that what she
4
observed was seminal fluid, she noted that the Brentamine test
indicated a positive reaction with regard to the sample from the fitted
sheet. Because of that reaction, she took the sample through further
testing and discovered that the sample did not contain any seminal
fluid.
At trial the State offered A.M.’s prior, recorded statement to
Kendall at the CAC into evidence. In direct examination of A.M. before
the § 3507 statement was admitted, the State asked A.M. whether she
talked to people other than her mother that day about what had
happened, and she answered that she had. When asked whether she was
“trying to tell them the truth” when she talked to people the morning of
the incident, she answered, “I don't remember, but I – I tried, but I don't
– I don't know.” When specifically asked about the CAC interview, she
said she spoke to the interviewer about what had happened that morning
and did so voluntarily. Defense counsel did not raise any § 3507
foundational objection to admission of the statement. Defense counsel
did object, however, on Rule 4045 grounds, to those parts of the
statement in which A.M. indicated that Ward had sexually touched her
on previous occasions.
5
Ward was found guilty of Sexual Abuse of a Child by a Person in a Position of Trust
in the Second Degree. Ward was sentenced on November 19, 2019 to 8 years Level
5 incarceration, suspended for 6 months Level 4 home confinement followed by 2
years Level 3 supervision. Ward was required to register as a sex offender pursuant
to statute.
The Supreme Court denied Ward’s appeal. Ward filed a Rule 61 Motion for
Postconviction Relief on September 23, 2021. The Motion then was assigned to a
Superior Court Commissioner pursuant to 10 Del. C. § 512(b) and Superior Court
Criminal Procedure Rule 62. The assigned Commissioner subsequently was
appointed as a Court of Common Pleas Judge. The pending motion reverted to the
assigned Superior Court Judge.
LEGAL ANALYSIS OF CLAIMS
Rule 61 Standard of Review
Before considering the merits of the claims, the Court first must determine
whether there are any procedural bars to the Motion. 1 This is Defendant's first
motion for post-conviction relief, and it was timely filed. 2 Pursuant to Superior
Court Criminal Rule 61 (i)(3) and (4), any ground for relief that was not previously
1
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
2
See Super. Ct. Crim. R. 61 (i)(1) (motion must be filed within one year of when conviction
becomes final); Super. Ct. Crim. R. 61(m)(1) (If the defendant does not file a direct appeal, the
judgment of conviction becomes final 30 days after the Superior Court imposes sentence).
6
raised is deemed waived, and any claims that were 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, are thereafter
barred.3 Ineffective assistance of counsel claims cannot be raised at any earlier stage
in the proceedings and are properly presented by a motion for postconviction relief. 4
In order to prevail on an ineffective assistance of counsel claim, a defendant
must show that counsel's representation fell below an objective standard of
reasonableness, and that the deficiencies in counsel's representation caused the
defendant actual prejudice.5 To prevail in the context of a case involving a guilty
plea, Defendant must show that but for counsel's errors, there is a reasonable
probability that Defendant would not have pleaded guilty and instead would have
insisted on going to trial.6 Defendant also must overcome a strong presumption that
counsel's conduct was reasonably professional under the circumstances. 7 Further,
mere allegations of ineffectiveness will not suffice, rather, Defendant must make and
3
See also Super. Ct. Crim. R. 61(i)(5) and (d)(2)(i), (ii) (setting forth exceptions to the procedural
bars).
4
Whittle v. State, 2016 WL 2585904, at *3 (Del.); State v. Evan-Mayes, 2016 WL 4502303, at
*2 (Del. Super.).
5
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State, 757 A.2d 1278(Del. 2000).
6
Albury v. State, 551 A.2d 53, 59 (Del. 1988) (quoting Strickland, 466 U.S. at 694).
7
State v. Wright, 653 A.2d 288, 293-94 (Del. Super. 1994) (citations omitted).
7
substantiate concrete allegations of actual prejudice.8 Great weight and deference
are given to tactical decisions by the trial attorney and counsel cannot be deemed
ineffective for failing to pursue motions that lack merit. 9
Foundation for 11 Del. C. § 3507 Prior Recorded Statement
11 Del. C. § 3507 provides:
(a) In a criminal prosecution, the voluntary out-of-court prior
statement of a witness who is present and subject to
crossexamination may be used as affirmative evidence with
substantive independent testimonial value.
(b) The rule in subsection (a) of this section shall apply
regardless of whether the witness' in-court testimony is
consistent with the prior statement or not. The rule shall
likewise apply with or without a showing of surprise by the
introducing party.10
In Collins v. State, the Delaware Supreme Court established that “a purpose
of § 3507 is to allow the admission into evidence the out-of-court statements of
turncoat witnesses.”11 This allows the jury to assess the credibility of the witness
who testified about prior statements.12
In Stevens v. State, the Supreme Court reinforced that evidence is only admissible
under § 3507 if it is “the voluntary out-of-court statement of a witness who is present
8
Younger, 580 A.2d at 556.
9
State v. Miller, 2013 WL 871320, at *4 (Del. Super.).
8
and subject to cross-examination.”13 The “statute must be construed narrowly in
order to preserve ‘a defendant's constitutional rights to confront and cross-examine
witnesses providing testimonial evidence.’”14
10
11 Del. C. § 3507.
11
56 A.3d 1012, 1019 (Del. 2012)
12
Id.13
3 A.3d 1070, 1072 (Del. 2010).
14
Id. at 1072-73.
10
In Woodlin v. State, the Delaware Supreme Court reaffirmed the holding in Keys
v. State to further clarify the foundational requirements of § 3507.15 The Keys Court
held: “In order to offer the out-of-court statement of a witness, the Statute requires
the direct examination of the declarant by the party offering the statement, as to both
the events perceived or heard and the out-of-court statement itself.”11 The witness
must testify “about both the events and whether or not they are true.” 1213 In Moore
v. State, the Supreme Court further elaborated that § 3507 does not require “that the
witness either affirm the truthfulness of the out-of-court statement or offer consistent
trial testimony.”18 “[O]ut-of-court statements are admissible even where the witness
10
A.3d 1084, 1087 (Del. 2010).
11
Id. (citing Keys v. State, 337 A.2d 18, 20 n. 1 (Del. 1975)).
12
Id. at 1088; see Ray v. State, 587 A.2d 439, 443 (Del. 1991).
13
WL 67104, at *2 (Del. 1995); see Ray v. State, 587 A.2d 439, 443 (Del. 1991).
9
cannot remember either the events of the alleged crime or the outof-court
statements.”14
In this case, the victim was asked numerous times whether she remembered talking
to other people on the day the crime occurred. The victim’s responses were that she
spoke with others about “things, like, what happened that morning….I don’t
remember. I think, or I know I, like, just answered their questions.” The victim was
asked if she was trying to tell the truth. She answered: “I don’t remember, but I – I
tried, but I don’t – I don’t know.” Further, the victim was asked if she remembered
going to the hospitals. The victim stated that she went to the hospitals and talked
about “[w]hat happened that morning.” The victim confirmed that no one forced her
to talk or told her what to say.
The Court finds that the trial transcript, when read in context, demonstrates that the
questioning at trial established the foundational requirement of inquiring into the
truthfulness of the statements. The victim testified she “tried” to tell the truth. Her
answer encompasses both conversations which took place the day she was
questioned. The questioning sufficiently addressed the truthfulness of both §
3507 statements. Therefore, Counsel had no duty to object to the admission of the
14
Id.
10
§ 3507 statements on that basis. Defendant suffered no prejudice as a result of
Counsel’s failure to object.
Rule 404(b) Prior Bad Acts Evidence
Delaware Rule of Evidence 404(b) provides:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person's character in order to show that on a
particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be
admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.
Counsel argues that the Superior Court abused its discretion by admitting
evidence of Defendant’s prior bad acts pursuant to D.RE. 404(b). Defendant claims
the evidence failed to meet the foundational requirements of Getz v. State.20 In Getz,
the Supreme Court set forth guidelines that govern the admissibility of prior bad acts:
(1) The evidence of other crimes must be material to an issue or
ultimate fact in dispute in the case. If the State elects to present such
evidence in its case-in-chief it must demonstrate the existence, or
reasonable anticipation, of such a material issue. (2) The evidence of
other crimes must be introduced for a purpose sanctioned by Rule
404(b) or any other purpose not inconsistent with the basic prohibition
against evidence of bad character or criminal disposition. (3) The other
crimes must be proved by evidence which is “plain, clear and
conclusive.” (4) The other crimes must not be too remote in time from
the charged offense. (5) The Court must balance the probative value of
such evidence against its unfairly prejudicial effect, as required by
D.R.E. 403. (6) Because such evidence is admitted for a limited
purpose, the jury should be instructed concerning the purpose for its
admission as required by D.R.E. 105.21
11
Defendant also argues that the Superior Court’s failure to apply the nine
Deshields factors—to conduct the balancing test that the fifth Getz factor requires—
disregarded a clear rule of law and was an abuse of discretion. In Deshields v. State,
the Court set forth nine factors a court should consider in applying the Rule 403
balancing test to Rule 404(b) evidence:
(1) the extent to which the point to be proved is disputed; (2) the
adequacy of proof of the prior conduct; (3) the probative force of the
evidence; (4) the proponent's need for the evidence; (5) the availability
of less prejudicial proof; (6) the inflammatory or prejudicial effect of
the evidence; (7) the similarity of the prior wrong to the charged
20
538 A.2d 726 (Del. 1988).
21
Id. at 734.
offense; (8) the effectiveness of limiting instructions; and (9) the extent to
which prior act evidence would prolong the proceedings. 22
Additionally, “if other crime evidence is admitted during the State's case-in-chief to
prove the charged offense, it must have independent logical relevance and the jury
should be carefully instructed regarding the limited purpose for which it can be
considered.”23
At trial, Defendant’s Counsel argued that the prior conduct the State was
trying to use to establish credibility was ambiguous. During an interview with the
victim, a few dates were provided but details were not given. During the same
interview, the victim recanted those dates. Trial Counsel further argued that if an
12
act did occur on the alleged dates, the State would have indicted Defendant on those
acts. Because of the lack of an indictment, Counsel believed the State could not rely
on such evidence to bolster credibility of the witness. Counsel argued that the
statement was not credible and relevance was minimal.
The State countered that during the victim’s disclosure, the victim indicated
on multiple occasions that these prior acts had occurred. The State believed this
disclosure went to the credibility of the victim. The State argued the disclosure
speaks to the victim’s reaction to the incident as a whole. The State further asserted
that the prior information should be admitted regarding credibility, motivation to lie,
22
706 A.2d 502, 506–07 (Del. 1998).
23
Id. at 507.
and bias. Further, the evidence is relevant not only for credibility, but to describe
the relationship between the victim and Defendant.
The Superior Court then conducted a D.R.E. 403 balancing test pursuant to
the fifth factor of the Getz guidelines. The Court found that the probative value of
the alleged prior bad acts was not substantially outweighed by the danger of unfair
prejudice. Further, the alleged bad acts were found not to be too remote in time from
the charged offense and were admitted for a limited purpose.
The Superior Court held the following regarding D.R.E. 404(b):
I find that the evidence is used for another purpose and is going
to be admissible to demonstrate intent, absence of mistake on the part
13
of the witness, and lack of an accident. So the repetitive nature of the
conduct goes to those issues. It’s also relevant when the credibility of
the witness is being attacked, but I think in this case more importantly
it goes to absence of mistake, lack of accident, intent, it even goes
toward knowledge and perhaps plan. So I am denying the Defense
motion to exclude those past alleged acts, but I will give the instruction
to the jury.
The Superior Court held the following regarding the D.R.E. 403 balancing
test for the fifth Getz factor:
I have conducted a balancing analysis pursuant to Rule 403 in which I
have found that the probative value of the alleged prior bad acts is not
substantially outweighed by the danger of unfair prejudice, confusing
the issues, misleading the jury, or presents cumulative evidence. I also
find that the prior alleged bad acts are not too remote in time from the
charged offense, and that I am going to instruct the jury that the
evidence will be admitted for a limited purpose and not for the purpose
of them concluding on the basis of that evidence that the Defendant
committed the charged act on the occasion contained in the indictment.
On appeal, the Delaware Supreme Court held the following regarding D.R.E.
404(b):
On appeal, for the first time, Ward also argues that the prior bad acts
evidence was not “plain, clear, and conclusive;” that it was too remote
in time; that its probative value was substantially outweighed by its
prejudicial effect; and that the Superior Court failed to give the
necessary limiting instruction contemporaneously when the evidence
was admitted, instead waiting to include it in the final jury instructions.
We are satisfied that the evidence was sufficiently “plain, clear, and
conclusive,” as it took the form of the prior statement of the alleged
victim of those prior acts, A.M. Although A.M.’s prior statement was
at times inconsistent and sparse on details, she was unequivocal in her
responses to Kendall that Ward had previously touched her vagina in
the same manner in which he touched her the morning of her interview
with Kendall. We also find that the evidence was not too remote in time
14
to be admissible. While A.M. could not provide the precise dates of
those alleged prior incidents or the number of prior incidents that took
place, she consistently maintained that all of the prior incidents had to
have occurred in the months prior to the incident for which she was
being interviewed because she was eleven years old when the incidents
began and she was still eleven years old at the time of the incident for
which Ward was ultimately convicted. Next, while the trial court did
not go through the Deshields factors on the record, we see no plain error
in its ruling that the probative value of the other bad acts evidence was
not substantially outweighed by the danger of unfair prejudice. Finally,
there is no merit to Ward's claim that the Superior Court erred in not
giving the limiting instruction to the jury contemporaneously with the
presentation of the statement. While that is a better practice, Ward does
not cite any case law suggesting that the trial court must provide the
Getz limiting instruction in such a fashion, at least not in the absence of
a request from defense counsel that it do so. In sum, any legal error in
the just discussed arguments which Ward makes for the first time on
appeal, if any, is not basic, serious, and fundamental in its character,
did not clearly deprive the accused of a substantial right, or clearly
show manifest injustice.15
In this case, the Court finds that it properly applied the Getz factors. The
Supreme Court found that the issue was preserved by Trial Counsel for appeal. The
Trial Court did not err by basing the ruling on Counsel’s proffer, rather than
reviewing the actual statement.
Under Deshields, admission of the evidence was not an abuse of discretion. The
Supreme Court addressed this issue on direct appeal. The Supreme Court held that
prejudice did not result from Trial Counsel not requesting that the Trial Court review
the statement verbatim prior to ruling. Further, the Supreme Court held prejudice
15
Ward v. State, 2020 WL 5785338, at *6 (Del.).
15
did not result from Trial Counsel’s failure to object to the Trial Court’s 404(b)
analysis or to application of the Deshields factors.
Statistical Evidence
Defendant argues Trial Counsel’s failure to object to Nurse Symond’s
testimony -- that in her experience less than ten percent of children who may be
victims of sexual assault manifest physical injury -- was not a reasonable trial
strategy. Defendant claims Symond’s experience in other cases is not relevant to
whether a sexual assault occurred in this case. Additionally, any statistics the
forensic nurse may have learned during training constitute inadmissible hearsay.
Defendant further argues the use of the statistics to support the premise that the
victim was sexually assaulted, despite the lack of physical injury, is improper.
Defendant asserts that the unfair prejudice of the statistics outweighs any probative
value, and that the statistics likely had a distorting effect on the jury.
At trial, based on the history obtained during conversation with the mother and
victim, Nurse Symond conducted a sexual assault exam and collected potential
evidence. During the examination it was noted that the victim did not have any
genital injuries. Nurse Symond attested that the lack of injury was normal, based on
her training and experience with children. Nurse Symond testified that
approximately less than ten percent of child victims of sexual assault have any
16
genital injuries. While proceeding with the examination, Symond’s asked the victim
if she had been touched in the areas she was investigating. The victim indicated she
had been touched, but she did not have any pain.
In Wheat v. State, the Delaware Supreme Court ruled that the expert’s role in in
child sex abuse cases is to “provide the trier of fact with background concerning the
behavior of the alleged child abuse victim based on the expert's experience and
training so that the jury, or judge, may place the child witness' testimony in a
behavioral context.”25 The Supreme Court outlined the following conditions for
admissibility:
1. The State must provide notice of its intention to use such a witness
sufficiently in advance of trial to enable the defendant to prepare to
cross-examine the witness. There is a fundamental inconsistency in
seeking acceptance of an expert witness' testimony on the basis of
25
527 A.2d 269, 275 (Del. 1987).
its scientific or specialized value while resisting application of the
pretrial notice requirements which attend the use of scientific and
specialized evidence.
2. Any voir dire concerning the qualifications or subject areas of
proposed testimony of the witness must be conducted out of the
presence of the jury.
3. If the witness qualifies as an expert, the witness may express
opinions consistent with the holding in this case. The expert may not
directly or indirectly express opinions concerning a particular
witness' veracity or attempt to quantify the probability of truth or
falsity of either the initial allegations of abuse or subsequent
statements.
17
4. In a jury trial, the jury must be specifically instructed concerning the
significance of the expert's testimony. Where evidence is admissible
only for a specific, limited purpose, the court must guide the jury's
discretion by ensuring that the jury understands the evidence's
inherent limitations. 1617
In Floray v. State, the Supreme Court reinforced the safeguards imposed under
Wheat.27 The Court held: “The general rule is that the common experience of the
jury provides a sufficient basis to assess the credibility of the child-witness and the
testimony of an expert witness is not necessary to assist the jury.”18 However, the
Court noted an exception to the general rule regarding intrafamily child sex abuse
cases.19
Expert testimony is admissible to help the jury understand the childvictim's
behavior when the child “has displayed behavior (... delay in
reporting) or made statements (... recantation) which, to [an] average
[lay person], are superficially inconsistent with the occurrence of
sexual abuse and which are established as especially attributable to
intrafamily child sexual abuse rather than simply stress or trauma in
general.20
“The use of expert evidence in child sexual abuse prosecutions is limited ‘to assist
the finder of fact . . . in evaluating the psychological dynamics and resulting
16
Id. at 275-76.
17
A.2d 1132, 1135 (Del. 1998).
18
Id.19
Id.20
Id.18
behavior patterns of alleged victims of child abuse, where the child's behavior is
not within the common experience of the average juror.’” 21
Delaware Rule of Evidence 701 provides:
If a witness is not testifying as an expert, testimony in the form of an opinion
is limited to one that is:
(a) rationally based on the witness’ perception;
(b) helpful to clearly understanding the witness's testimony or to determining
a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702.22
In this case, the State provided necessary and adequate notice of expert
witness testimony. The expert did not testify in attempt to quantify the probability
of truth or falsity of the complainant’s statements. Rather, the expert opined based
on her professional experience that less than ten percent of child sex abuse victims
have any genital injuries. This statement of fact was rationally based on the expert’s
experience. The statement was helpful to clearly understand a fact in issue that was
outside the scope of persons without specialized knowledge.
21
Id.22
D.R.E. 701.
19
It is axiomatic that all evidence and testimony by any party is designed to
support a proposition favorable to that party. The fact that the expert’s opinion may
have bolstered the claimant’s testimony is not, in itself, unduly prejudicial to
Defendant. The probative value was not outweighed by the danger of unfair
prejudice. The expert was subject to cross-examination. The issue of witness
credibility remained in the sole discretion of the jury. Therefore, Trial Counsel did
not have a duty to object to the expert opinion testimony. There is no prejudice to
Defendant on this issue.
CONCLUSION
The foundation for the § 3507 statements was established at trial when the
State inquired into the truthfulness of the statements. Counsel had no duty to object
to the admission of the § 3507 statements on that basis. No prejudice occurred
because of lack of an objection.
Regarding D.R.E. 404(b), the Court properly applied the Getz factors. The Court
did not err by basing its ruling on Counsel’s proffer rather than reviewing the actual
statement. Under Deshields, the admission of prior bad acts was not an abuse of
discretion. Further, the Supreme Court found Trial Counsel’s failure to object to the
Court’s D.R.E. 404(b) analysis or lack of objection to application of the Deshields
factors did not result in prejudice.
20
The statistical evidence provided by the expert witness did not create unfair
prejudice. The State provided adequate and necessary notice of the expert testimony.
The testimony did not attempt to quantify the probability of truth or falsity of the
victim’s statement. The statement of fact rationally based on experience helped
clarify a fact in issue outside the scoop of persons without specialized knowledge.
Trial Counsel did not have a duty to object to expert opinion testimony. No prejudice
occurred because of Trial Counsel’s failure to object.
As a result of these findings, there is no cumulative effect of Trial Counsel’s errors
that could warrant a new trial. In consideration of the entire record, the Court finds
that Defendant has failed to establish ineffective assistance of Trial Counsel.
Trial Counsel did not err in a manner that deprived Defendant of a fair trial.
THEREFORE, Defendant’s Rule 61 Motion for Postconviction Relief is hereby
DENIED.
IT IS SO ORDERED.
21