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State v. Nastatos

Superior Court of Delaware

March 29, 2019

STATE OF DELAWARE
v.
ANTHONY NASTATOS, Defendant.

          Submitted: November 28, 2018

         Upon Defendant's Motion for Postconviction Relief`(R-1)

          Renee Hrivnak, Esquire, Deputy Attorney General, Department of Justice, Attorney for State of Delaware.

          Christopher S. Koyste, Esquire, Law Office of Christopher S. Koyste LLC, Attorney for Petitioner Anthony Nastatos.

          MEMORANDUM OPINION

          KARSNITZ, J.

          I. INTRODUCTION

         In December of 2012, a jury found defendant Anthony Nastatos ("Defendant" or "Nastatos") guilty of one count of Harassment[1] (as a lesser included offense of Stalking[2]), three counts of Breach Conditions of Bond During Commitment[3]("BCBDC"), and sixteen counts of Non-Compliance with Bond Conditions[4]("NCBC").[5] In March of 2013, he was sentenced to thirty-two years at Level V, suspended after sixteen years for decreasing levels of probation.[6] The Delaware Supreme Court affirmed the conviction in April of 2014.[7] Defendant has now filed a Motion for Postconviction Relief under Superior Court Criminal Rule 61 on the basis that he was denied effective assistance of counsel at his 2012 trial and during his subsequent appeal in 2014.[8]

         Defendant raises several claims under both the United States Constitution and the Delaware Constitution alleging that his conviction and his sentence resulted from violations of his right to due process and right to effective assistance of counsel. Specifically, he claims that trial counsel was ineffective for: (1) failure to limit references to prior bad acts (incarceration) and mental health issues and to request a limiting jury instruction thereon, either during or after trial; (2) failure to object to a police officer's impermissible hearsay testimony; (3) failure to object to prejudicial errors committed by the State of Delaware (the "State") during its direct examination of the victim; (4) failure to object to the Court's limiting instruction on inadmissible evidence; (5) failure to review the victim's cell phone records; and, (6) failure to move for the trial judge's recusal before sentencing. Defendant claims that the State failed to provide him with the complaining witness' cell phone records, which might have contained Brady[9] material. He claims these cumulative errors denied him a fair trial. He alleges appellate counsel was ineffective on direct appeal for: (1) failure to raise cumulative errors at the trial; and, (2) failure to object to certain comments made by the judge before the sentencing hearing.

         I find that Defendant has failed to satisfy the prejudice portion of the two-part test set forth in Strickland v. Washington[10] 'Strickland'), as discussed more fully below, as to his allegation of ineffective assistance of trial counsel. I further find that Defendant has failed to satisfy either the performance portion or the prejudice portion of the Strickland test as to his allegation of ineffective assistance of appellate counsel. Finally, I find that Defendant's speculative Brady claim is procedurally barred. Accordingly, the Motion is DENIED.

         II. BACKGROUND

         A. Procedural History

         Nastatos was arrested and charged in October of 2010 with Stalking which was later reduced to two counts of Harassment.[11] In February of 2011, Nastatos was arrested and charged with Stalking and twenty counts of misdemeanor NCBC.[12] In all instances, Alexandra Koval ("Koval") was the complaining witness. The cases were consolidated after being transferred to the Superior Court in March 2011.[13]

         The Superior Court ordered Nastatos to undergo a psychiatric evaluation in April 2011. On June 20, 2011, Nastatos was indicted by a grand jury.[14] As a result of allegations he violated the no contact order against him, Nastatos was re-indicted on March 12, 2012, [15] and again on May 21, 2012.[16]

         A jury trial began on December 11, 2012.[17] At trial, the State entered nolle prosequis on six counts of misdemeanor NCBC after the Court excluded exhibits which it ruled were not properly authenticated.[18] Nastatos' motion for judgment of acquittal on the remaining counts was denied.[19]

         After a four-day trial, a jury found Nastatos guilty of the remaining charges, including: three counts of felony BCBDC, one count of Harassment (as a lesser included offense of Stalking), and sixteen counts of misdemeanor NCBC.[20] A presentence investigation was conducted and on March 1, 2013, and, effective February 22, 2011, Nastatos was sentenced to 32 years at Level V, suspended after 16 years for decreasing levels of probation. Nastatos appealed his conviction and sentence and the Delaware Supreme Court affirmed the Superior Court's judgment.[21]

         B. The Offenses

         Nastatos' convictions arise from a series of events where he continuously sought out his former co-worker at her home, her place of work, by mail, and through social media despite police warnings, court orders, and incarceration. The facts are summarized as follows:[22]

Nastatos and Alexandra Koval ("Koval") met in August 2009, while working at the same restaurant on Route 202 in New Castle County.
The two developed a friendly relationship. Soon after they met, Nastatos anonymously covered Koval's car with flower petals. He later admitted to the act and told her he had romantic feelings for her. Koval told Nastatos she did not have romantic feelings for him.
A few days later, Koval and Nastatos went shopping together, had dinner at a restaurant, and met another co-worker for drinks that night. Nastatos' behavior that night made Koval uncomfortable. Koval's discomfort forced her to cancel other plans they had made together. After that, she avoided Nastatos.
A couple of months later, Koval's car ran out of gas and she was required to take a different vehicle to work. Nastatos left a can of gas for Koval at work. Later, another can of gas was found at her house next to her car. After this, Nastatos began to regularly send Koval lengthy love poetry via text messages, and to wait for Koval after work. Koval told Nastatos that these overtures made her uncomfortable and asked him to leave her alone.
Nastatos then attempted to "friend" Koval on Facebook, under the pseudonym "Anakin Skywalker." Koval rejected this friend request. Next, Nastatos attempted to friend Koval from a Facebook account attached to his real name. Koval neither accepted nor denied this friend request. The pending friend request allowed Nastatos to send Koval private messages on the Facebook website.
In the spring of 2010, Nastatos sent Koval a late night text message containing a long poem. Koval told her coworker about the text, and Nastatos' previous behavior. The co-worker told the restaurant's management. Koval's manager examined the text messages and transferred Nastatos to another location.
Around this time, Koval also made her first report to the New Castle County Police Department ("NCCPD"). The NCCPD told Koval to block Nastatos' cell phone number, which she did. Nastatos then began regularly contacting Koval on Facebook, both through the account associated with his own name and the account with the name "Anakin Skywalker."
In various messages, Nastatos called Koval his "wife" and "soul sister." He also referenced Koval contacting the police, a necklace he had given Koval, and mutual friends and co-workers. Nastatos asserted his belief that the restaurant management was conspiring against him. In one message, Nastatos said, "I love you like I've never loved another person, but I can only do so much, especially when you are working against me." Nastatos also referenced a desire to "challenge" anyone for Koval's "hand."
In September 2010, Koval again contacted the NCCPD. Police visited Nastatos, who claimed he and Koval were dating. The police advised Nastatos to stay away from Koval. Nastatos then expressed a belief that the police, the restaurant management, and Koval's father were all "in on" keeping Koval and Nastatos apart.
The police visit did not dissuade Nastatos. He sent Facebook messages to Koval twice after the visit, referencing their prior dinner together and stating he was going to come to her new restaurant working location to see her. The NCCPD then arrested Nastatos. The Justice of the Peace placed bail conditions on Nastatos to have no more direct or indirect contact with Koval.
Nastatos continued to regularly send Koval Facebook messages, begging her to talk to him. Nastatos also sent a message to Koval's father discussing Koval and referencing the restaurant management's conspiracy to keep him and Koval apart. In January 2011, Nastatos sent Koval a Facebook message telling her the no-contact order did not matter because the two were bound by a higher power. Nastatos continued to regularly send Koval Facebook messages referencing her employer, the NCCPD, and his desire to meet with her.
On February 9, 2011, Nastatos sent Koval a message stating he would be at the Riverfront in Wilmington waiting for her. Koval was at her second job at a restaurant at the Riverfront and saw Nastatos outside of the window of the restaurant. The two did not interact.
Six days later, Nastatos arrived at the restaurant, which was Koval's primary place of employment, and attempted to speak with Koval. Koval ran to her car. As she was fleeing, Nastatos threw a ring box at her. Koval contacted the NCCPD. Nastatos sent Koval a Facebook message saying that the restaurant manager would be holding the ring for Koval.

         Four days later, Nastatos sent Koval the following Facebook message:

Allie, I'm in love with you. Never in my life have I cared about one person more than you. Half of me wants to kill people for interfering. If you ask, I will.... I have had many people take a knee to me. Never have I kneeled to another person until I kneeled to you. I will be wearing our wedding bands until I see you again.
Koval contacted the NCCPD, who arrested Nastatos for additional charges. The Justice of the Peace Court issued a second no-contact order.
In March 2011, while incarcerated, Nastatos sent Koval a letter asking if she would marry him. He sent her a second letter five months later, referring to her as "Alexandra Nastatos" and professing his continued love for her. In this second letter, he also referenced her employer and his interactions with the NCCPD. Eight months later, Nastatos sent Koval a third letter. In this letter, he referenced her employer, the restaurant manager, the NCCPD, and Koval's father.
Nastatos was charged with one count of felony Breach of Conditions of Bond During Commitment for each letter. He was also charged with Stalking and one count of misdemeanor Non-Compliance with Conditions of Bond for each of the Facebook messages he sent after his bond condition was ordered.[23]

         C. Subpoenaed Cell Phone Records

         Before trial, the State subpoenaed the victim's cell phone provider, requesting copies of "subscriber and call detail records for all incoming and outgoing calls." Text messages were neither requested nor received. The State reviewed the call records and found that neither of the two telephone numbers associated with Nastatos appeared in those records. The State did not produce a copy of the call records to Trial Counsel, but it did notify Trial Counsel that he could review the records in full. Trial Counsel never arranged a time to review the cell phone records.

         D. Trial

         Though initially found incompetent to stand trial, Nastatos was later deemed competent after receiving treatment at the Delaware Psychiatric Center.[24] Nastatos' case proceeded to trial and the jury was selected on December 11, 2012. Testimony began the next day.

         i. Complaining Witness' Testimony

         The State's first witness in its case-in-chief was Koval. Koval's testimony included several statements describing the messages, Emails and letters that Nastatos had sent her. After the first mention of receiving a message from Nastatos, Trial Counsel objected on the grounds that a proper foundation was required under Delaware Rules of Evidence ("D.R.E.") 901 before Koval could testify that Nastatos indeed sent the message. In sustaining the objection, the Court advised the State to "establish a foundation as to why she concluded [the message] was from [Nastatos] and what she based that on."[25]

         Trial Counsel objected on numerous occasions during the State's direct examination of Koval to the non-authentication under D.R.E. 901 of the messages, Emails and letters referenced by the State. The Court conducted several sidebar conferences with counsel discussing how to lay a proper foundation, and instructed and corrected the State in front of the jury on several occasions. Trial Counsel also maintained a continuing objection to the conditional admission of all of the evidence on the grounds that the D.R.E 901 requirements had not been satisfied.

         ii. References to Mental Health and Prior Incarceration

         During trial the State sought to introduce thirty-eight documents consisting of emails, text messages, Facebook messages and posts, and letters sent from Nastatos to Koval while he was in prison. Trial Counsel objected to the admission of each document, arguing that the State failed to properly authenticate them pursuant to D.R.E. 901. The Court conditionally admitted the evidence, provided the State could lay the proper foundation.

          In the documents there were several statements about Nastatos' prior incarceration and psychiatric hospitalization. The statements were written by Nastatos himself in various communications to Koval. Three references were made to Defendant's prior incarceration:

• "...But I did go to jail."[26]
• "... again I'll be in Gander."[27]
• "I've been in jail before, longest bit, one year. A lot of people can't handle jail; it definitely tests a person. Though I'd rather be free, I'm fine."[28]

         Trial Counsel did not specifically object to these references, but maintained a continuing objection on Rule 901 grounds. The State suggested the possible need for a curative instruction based on the "[I]'ve been in jail before . .." statement, but did not have preference as to when the instruction was given.[29] Trial Counsel asked that the instruction be given at the end of trial.[30] The trial testimony also included six references to Defendant's mental illness or hospitalization at a mental health institution:

• "First, I have an OCD"[31]
• "I ended up in a hospital"
• "I woke up in Meadow Wood"[32]
• "When I was in Meadow Wood"[33]
• "I was diagnosed delusional"[34]
• "They sent us to the State Hospital-they sent me to the State Hospital for treatment because I believe the above statement. They pumped me full of drugs for months. . ."[35]

         Trial Counsel did not specifically object to any of these references, although he maintained a continuing objection on D.R.E. 901 grounds.

         iii. Officer's Testimony

         On direct examination of Officer Kerri Clarke, the State elicited testimony about prior statements made by witness Koval to Officer Clarke. These prior witness statements were not inconsistent with Koval's testimony, were not offered to rebut an "express or implied charge against [Koval] of recent fabrication or improper influence or motive," nor were they identifying Defendant. Thus they constitute hearsay under D.R.E. 801(d)(1) and were inadmissible. The State did not seek to admit the prior witness statement under 11 Del. C. §3507. Trial Counsel did not object to this testimony.

         iv. Jury Instruction and Verdict

         When the State concluded its case-in-chief, the Court excluded six of the thirty-eight exhibits that had been conditionally admitted because the State did not lay a sufficient foundation for them. As a result, the State entered nolle prosequis on the six related counts of NCBC.

         At the close of the evidence, the Court instructed the jury. The jury was not given a limiting instruction as to either the references to Nastatos' prior incarceration or his mental health problems.[36]

         Trial concluded on December 19, 2012. Nastatos was convicted of one count of Harassment (as a lesser included offense of Stalking), three counts of felony BCRDC, and the remaining sixteen counts of misdemeanor NCBC. A presentence investigation was ordered, and sentencing was scheduled for the following March. No post-verdict motions were filed.

         E. Sentencing

         On March 1, 2013, when the State moved for Nastatos' sentencing, Trial Counsel immediately asked the Court for a sidebar conference. At sidebar, Trial Counsel asked to put on the record comments that were allegedly made by the Court during or before trial:

TRIAL COUNSEL: What I want to put on the record is that during either the pretrial or during the trial conference in Chambers, the Court indicated to counsel that the Court has four daughters, and that if the Defendant had been doing what he was doing in this case to the Court's daughters, then the Court would have to stop him. And I forget the exact language used, but it was: I would have to run him down or gun him down, or stop him.
COURT: Mr. Flockerzie, first of all, I don't use that kind of terminology. I might have said he'd tuck his head between his legs and kiss something good-bye, but personally I wouldn't have said that. But what are you telling me? That if he was found guilty, ...

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