Submitted: April 8, 2015
Christopher S. Koyste, Esquire, Attorney for Defendant.
Martin B. O'Connor, Deputy Attorney General, Department of Justice, Attorney for the State of Delaware.
Honorable Andrea L. Rocanelli Judge
I. PROCEDURAL HISTORY
On May 18, 2010, a Superior Court jury found Defendant Efrain Rivera guilty of one count of Rape in the First Degree; one count of Rape in the Second Degree; one count of Menacing; one count of Assault in the Third Degree; two counts of Terroristic Threatening; and one count of Endangering the Welfare of a Child. Andrew J. Witherell, Esquire ("Trial Counsel") represented Defendant at trial. On July 23, 2010, the Trial Court sentenced Defendant to eighteen (18) years at Level V, suspended after fifteen (15) years for three years at Level IV, suspended after six months for two years at Level III. On July 25, 2011, the Delaware Supreme Court affirmed Defendant's conviction.
On October 22, 2012, Defendant filed a Motion for Appointment of Counsel to pursue postconviction relief. On December 11, 2012, the Court appointed Christopher S. Koyste, Esquire ("Rule 61 Counsel"). After motion practice regarding discovery,  Defendant filed the pending Motion for Postconviction Relief ("PCR Motion").
II. FACTS PRESENTED AT TRIAL SUPPORTING CONVICTION
On August 14, 2009, Defendant was at the residence of Juan Pacheco. Cariely Rosado, Pacheco's niece, also lived at the residence with Rosado's infant child. Defendant left the residence when Pacheco was going to bed. Rosado was asleep in her bedroom on the first floor, which Rosado shared with her infant child. Later, Defendant returned to the residence and entered Rosado's bedroom. Defendant held a knife to Rosado's throat and sexually assaulted Rosado while Rosado's infant child was in the bed with Rosado.
Defendant left the residence and Rosado ran upstairs to alert Pacheco, who then called the police. Rosado, Pacheco, and Defendant were all interviewed by the police following the report. In addition, Rosado was examined by a nurse who testified as a witness at trial.
III. DEFENSE STRATEGY AT TRIAL
Trial Counsel's defense was to deny any relationship between Defendant and Rosado. This strategy was consistent with Defendant's statements to the police when he was interviewed at the time of the criminal report.
IV. DEFENDANT'S PCR MOTION THEORY OF AN AFFAIR-DEFENSE
The central gravamen of Defendant's PCR Motion claims that Defendant and Rosado were having a consensual affair and that Trial Counsel was ineffective for failing to present evidence consistent with this defense theory. However, as discussed in connection with each of the claims, presentation of such a defense was inconsistent with the evidence to the contrary and there was no evidence to support an affair-defense other than Defendant's own testimony. The testimony of Rosado, the testimony of the nurse who examined Rosado after the assault, and other physical evidence supported a finding that the sexual intercourse was not consensual. Other than Defendant's own proffered testimony, there is no evidence to support the version of events offered by Defendant in his PCR Motion.
For example, Defendant now claims that on the night of the assault he and Rosado had a fight and that Rosado made up the rape when Pacheco heard the argument in order to hide their affair. However, Pacheco testified that he only woke up when Rosado went upstairs to tell him about the rape. At no point did Pacheco testify that he heard an argument between Defendant and Rosado.
Moreover, Defendant has not presented any support for his recent claim that he even told Trial Counsel before the trial about the claimed affair. As discussed below, even if Defendant had raised with Trial Counsel an affair-defense at the time of trial, it was professionally reasonable to reject an affair-defense as a trial strategy.
V. ASSERTED GROUNDS FOR POSTCONVICTION RELIEF
Defendant asserts six grounds for relief in his PCR Motion: (1) ineffective assistance of Trial Counsel in failing to appeal the Trial Court's ruling that Rosado's Section 3507 statement was admissible; (2) ineffective assistance of Trial Counsel for failing to properly advise Defendant of his right to testify; (3) ineffective assistance of Trial Counsel for failing to adequately cross examine Pacheco; (4) ineffective assistance of Trial Counsel for failing to investigate the contents of Defendant's cell phone; (5) multiple Brady violations including (a) that the State failed to disclose information in relation to Pacheco and a Wilmington Police Officer involved in the police interviews and (b) ...