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Hearne v. State

Supreme Court of Delaware

December 11, 2017

ROBERT HEARNE, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: September 19, 2017

         Court Below-Superior Court of the State of Delaware Cr. ID No. 1605006649 (N)

          Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.


          Gary F. Traynor, Justice.

         This 11th day of December 2017, upon consideration of the no-merit brief under Supreme Court Rule 26(c), appellate counsel's motion to withdraw, and the State's response, it appears to the Court that:

         (1) 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 conducted an interview of the child involved. The child, Theresa, told Detective Levy that she had been sexually abused by her father over an eight-year period.[1] Detective Levy conducted an investigation that led to the indictment of the appellant, Robert Hearne, on more than twenty sexual offenses.

         (2) Hearne went to trial before a Superior Court jury in New Castle County and was convicted of seven counts of Rape First Degree and other offenses, including two counts of Continuous Sexual Abuse of a Child. On March 31, 2017, Hearne was sentenced to seven life terms-one for each rape conviction-and an additional ninety-five years at Level V followed by decreasing levels of supervision. The Superior Court merged the two convictions of Continuous Sexual Abuse of a Child and sentenced Hearne to thirty-five years at Level V.[2] This is Hearne's direct appeal.

         (3) On appeal, Hearne's appellate counsel has filed a no-merit brief under Rule 26(c) and a corresponding motion to withdraw. Hearne has submitted written points for the Court's consideration. The State has responded to the position taken by Hearne's appellate counsel and the points raised by Hearne and has moved to affirm the Superior Court's judgment.

         (4) When considering a Rule 26(c) brief and an accompanying motion to withdraw, our standard and scope of review is twofold. First, the Court must be satisfied that the appellant's counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal.[3] Second, the Court must conduct its own review of the record to determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.[4]

         (5) The State's witnesses included Hearne's former girlfriend, Stephanie Digrerio, and brother, Thearon "Bud" Hearne. Stephanie and Bud testified about the contents of a video they watched in 2007. Stephanie testified that she watched the video after finding it in Hearne's car. On the video, she saw Theresa, at age seven or eight, wearing nothing but "a black thong" and heard a voice, which she recognized as Hearne's, telling the child to "turn around."[5] Stephanie testified that, after watching a few seconds of the video, she turned it off and took it to Bud's wife. Stephanie testified that she confronted Hearne a few days later about the video, and that Hearne expressed remorse about making the video and assured her it would never happen again.

         (6) Bud also testified that he watched "just moments"[6] of a video that showed a naked young girl standing near a bathroom shower with a towel draped on her shoulders, and the same girl posing on a bed, wearing "an adult thong that clearly didn't fit."[7] Bud testified that he recognized the rooms in the video as the master bathroom and master bedroom in his mother's house. Bud testified that the video did not show the girl's face, and it did not have sound, but he assumed that the girl was his niece, Theresa, and that Hearne had recorded the video. Bud testified that, after consulting with a deacon from a local church, he decided to burn the video because he "didn't see any touching on the tape, " and he "didn't think bringing [the] tape to somebody's attention would have a beneficial value."[8] Bud testified that he confronted Hearne about the video, and that Hearne acknowledged making the video and assured him it was a "one-time thing."[9]

         (7) Theresa was sixteen years old at Hearne's trial in 2017. She testified that Hearne began sexually abusing her when she was three or four years old and continued abusing her until she was twelve. Theresa testified that the sexual contact, which started as touching and escalated over time to oral sex and digital penetration, occurred more than one hundred times. Theresa described the abuse as occurring at various locations in Wilmington, including the basement of her parents' house, her paternal grandmother's house, in Hearne's car, and in a motel, where Hearne made her wear lace underwear that was too big for her. Theresa testified that she could not recall Hearne taking photos or videos of her, but she did recall him connecting a camera to a television in her grandmother's house and seeing naked photos of herself on the television screen.

         (8) Hearne's defense at trial was a complete denial of the charges against him. He testified that he did not touch Theresa in an inappropriate manner or engage in oral sex with her. Hearne admitted that he videotaped Theresa coming out of a shower with a towel wrapped around her and acknowledged that Stephanie and Bud confronted him about the video. But Hearne denied that he intended to videotape Theresa in a sexual act or that the video depicted anything sexual.

         (9) The jury found Hearne guilty of seven counts of Rape First Degree, four counts of Unlawful Sexual Contact Second Degree, two counts of Continuous Sexual Abuse of a Child, two counts of Dangerous Crime against a Child, one count of Sexual Abuse of a Child by a Person in a Position of Trust, Authority or Supervision First Degree, and one count of Unlawful Sexual Contact First Degree. The jury acquitted Hearne of one count of Rape First Degree, two counts of Unlawful Sexual Contact Second Degree, and a single count of Sexual Exploitation of a Child.

         (10) Hearne has submitted four points on appeal. He contends that "the process [was] tainted" because Theresa's mother, his ex-wife, works for the Superior Court Prothonotary in New Castle County. He claims that he is innocent of the charges against him and that Theresa's trial testimony was untruthful and was coached by Detective Levy and the trial prosecutor. He questions whether the elements of the charges were "fully explained" to the jury, and he complains that the first degree rape charges in the indictment described "the exact same offense."

         (11) Hearne's first point on appeal was raised during his jury selection when his lawyer informed the judge-who did not preside over Hearne's trial-that Theresa's mother, Hearne's ex-wife, was employed by the Superior Court Prothonotary in New Castle County. Counsel suggested that the circumstances warranted reassignment of the case to a judge in one of the other two counties in Delaware to avoid the appearance of impropriety. The judge did not know Theresa's mother and ...

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