Date Submitted: May 1, 2014
Edward C. Gill, Esquire Law Office of Edward C. Gill, P.A.
Casey L. Ewart, Esquire Department of Justice
This is my decision on Stanley O. Taylor's Motion for Postconviction Relief. Taylor was convicted of numerous sexual offenses that arose out of his sexual abuse of his eight-year-old stepgranddaughter, M.H. I sentenced Taylor to eight life sentences plus 225 years at Level 5. Taylor appealed his convictions to the Supreme Court. The Supreme Court upheld his convictions in a decision dated May 6, 2013. This is Taylor's first motion for postconviction relief and it was filed in a timely manner. Taylor is now represented by Edward C. Gill, Esquire.
Taylor alleges that his trial counsel was ineffective because he did not (1) file a motion to suppress the evidence seized by the police as the result of their search of his home pursuant to their execution of an invalid nighttime search warrant, (2) file a motion pursuant to 11 Del.C. § 3508 seeking the admission into evidence of allegations made by M.H. that her cousin had inappropriately touched her, (3) file a motion to exclude the testimony of sexual assault nurse examiner Cheryl Littlefield, (4)object to the testimony of sexual assault nurse examiner Ashley Thompson-Hill, (5)move for a mistrial after the jury was allowed to hear allegations of unsupported sexual abuse against E.H., (6) file a motion for a bill of particulars, (7) object to remarks made by the State in its closing arguments, and (8) object to the Court's instruction to the jury on the procedure for viewing M.H.'s CAC interview during deliberations. Taylor's trial counsel and the prosecutor have submitted affidavits in response to Taylor's allegations.
STANDARD OF REVIEW
In order to prevail on a claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, the defendant must engage in a two-part analysis. First, the defendant must show that counsel's performance was deficient and fell below an objective standard of reasonableness. Second, the defendant must show that the deficient performance prejudiced the defense. Further, a defendant "must make and substantiate concrete allegations of actual prejudice or risk summary dismissal." It is also necessary that the defendant "rebut a 'strong presumption' that trial counsel's representation fell within the 'wide range of reasonable professional assistance, ' and this Court must eliminate from its consideration the 'distorting effects of hindsight when viewing that representation.'"
I. Search Warrant
Taylor alleges that his trial counsel was ineffective because he did not file a motion to suppress the evidence seized by the police as the result of their search of his home pursuant to their execution of an invalid nighttime search warrant. Taylor argues that the warrant was invalid because the affidavit supporting it did not set forth exigent circumstances justifying a nighttime search of his home. Taylor further argues that the nighttime search warrant itself did not authorize its execution at night.
The police executed a search warrant on Taylor's home at 3:55 a.m. on June 5, 2011. As a result of their search, the police (1) a digital camera, (2) a Compaq Presario computer, (3) an HP Pavilion Slimline computer, (4) a cellular phone, (5) a .22 caliber rifle, (6) several DVDs, and (7) 18 rounds of ammunition. When the police examined Taylor's camera and computers, they found numerous nude pictures of M.H. and E.H. This evidence was admitted into evidence at Taylor's trial. Taylor's trial counsel states that he did not file a motion to suppress because he believed the warrant contained probable cause and that it complied with the statutory requirements for a nighttime search warrant.
11 Del.C. § 2308 states that a "search warrant shall not authorize the person executing it to search any dwelling house in the nighttime unless the judge, justice of the peace or magistrate is satisfied that it is necessary in order to prevent the escape or removal of the person or thing to be searched for, and then the authority shall be expressly given in the warrant. For purposes of this section the term "nighttime" shall mean the period of time between 10:00 p.m. and 6:00 a.m."
In State v. White,  the Court ruled that a nighttime search warrant was improperly issued because the supporting affidavit did not include sufficient exigent circumstances. In that case, the search warrant was issued to search a hotel room after an infant had been rushed to a hospital and subsequently died. The sole exigency offered to support the nighttime search warrant was a "possibility of degradation of evidence." The Court held this was nothing more than a conclusory allegation because no explanation was offered as to why the evidence would degrade before a daytime warrant could be executed.
The affidavit in this case does provide probable cause to obtain a warrant to search Taylor's home during the daytime. However, §2308 is clear and unambiguous. Under Delaware law, even when a search warrant is supported by probable cause, a nighttime search may not be conducted "absent the showing of exigent circumstances which make it necessary to conduct the search at night."Under §2308 two things must be present to authorize a nighttime search warrant. One, the warrant must include sufficient facts on the face of the affidavit for a magistrate to find that the nighttime warrant is necessary to prevent the removal or destruction of potentially incriminating evidence. Two, authorization must be expressly given in the warrant for a nighttime search. In determining whether the issuance of the warrant satisfies these statutory requirements, the Court may only consider those facts presented in the affidavit of probable cause supporting the warrant application, otherwise known as the "four-corners" of the affidavit. It is also worth noting that a probable cause determination by a magistrate is entitled to "great deference by a reviewing court and will not be invalidated by a hypertechnical, rather than common sense, interpretation of the warrant affidavit."
The facts contained in the affidavit do not establish that there were exigent circumstances justifying a nighttime search of Taylor's home. In fact, they support the opposite conclusion. The statements in the affidavit discussing the issue of staleness with computer investigations mention that data can be recovered many years after being written. Furthermore, the affidavit mentions how "collectors and traders are known to store and retain their collections for extended periods of time, usually in their home and/or computer." Nothing in the affidavit discusses a need for exigency in order to recover this data. Outside of the affiant's conclusory opinion that a nighttime search warrant is necessary, there are no facts to back up that claim. In short, there is no mention in the affidavit about the immediate potential destruction of evidence.
Not only did the application for the nighttime search warrant fail to satisfy the specific initial statutory requirements of §2308, but the warrant itself did not meet the statutory requirements. The form of the search warrant to be issued when a nighttime search of a dwelling has been authorized is ...