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State v. Green

Superior Court of Delaware, Kent

September 23, 2019

STATE OF DELAWARE
v.
TODD GREEN, Defendant.

         RK15-02-0044-01 Att Child Abuse (F)

         RK15-02-0049-01 Att Rape 2nd (F)

         RK15-06-0362-01 Unlaw Sex Con (F)

         COMMISSIONER'S REPORT AND RECOMMENDATION

         Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61

          Kathleen A. Dickerson, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.

          Benjamin S. Gifford, IV, Esq., for Defendant.

          FREUD, COMMISSIONER

         The defendant, Todd Green ("Green"), was found guilty following a jury trial on June 22, 2015 of one count of Attempted Rape in the Second Degree, 11 Del. C. § 772; one count of Attempted Child Abuse, 11 Del. C. § 778; and one count of Unlawful Sexual Contact in the Second Degree, 11 Del. C. § 768. At the conclusion of the State's case the defense moved for a Judgment of Acquittal as to several counts. The Court granted the motion and a Judgment of Acquittal was entered as to the following charges: one count of Child Abuse, one count of Rape in the First Degree, one count of Attempted Rape in the Second Degree, one count of Attempted Rape in the Fourth Degree and two counts of Attempted Child Abuse. Green was found not guilty on two counts of Rape in the First Degree, six counts of Child Abuse, three counts of Rape in the Second Degree, one count of Continual Sexual Abuse of a Child, one Count of Attempted Child Abuse, and one Count of Attempted Rape in the Second Degree and one Count of Unlawful Sexual Contact in the Second Degree. A presentence report was ordered and on September 15, 2015 Green was sentenced to a total of sixty-eight years incarceration suspended after serving fifty years and nine months incarceration for varying levels of probation. The first fifty years were minimum mandatory.

         Green, through counsel, appealed his conviction to the Delaware Supreme Court. Once the Notice of Appeal was filed in the Supreme Court by Appellate Counsel, Green, /?ro se, requested that he be permitted to represent himself on appeal. The Supreme Court remanded the matter back to this Court to determine if Green was capable of representing himself. On remand this Court held an evidentiary hearing at which Green initially stated he wanted to proceed pro se because Appellate Counsel would not raise all the issues he wanted raised. Upon further questioning by the Court however, Green withdrew his request to proceed pro se and stated that he did not wish to waive his right to counsel on appeal and would proceed with his current Appellate Counsel if the Supreme Court denied his motion for appointment of new Appellate Counsel. The issues on appeal were noted by the Supreme Court as follows:

(2) Green makes one argument on appeal. He contends that the cumulative effect of irrelevant and prejudicial testimony deprived him of a fair trial. After a careful review of the record on appeal, we find that the challenged testimony did not jeopardize Green's substantial rights or deprive him of a fair trial. We therefore affirm his convictions.[1]

         The Supreme Court on September 7, 2016 affirmed Green's conviction and sentence stating:

(18) Green has not shown that the cumulative effect of the witnesses' statements deprived him of a fair trial or resulted in "manifest injustice." As we have noted before, the statements were isolated events in the trial, the trial judge properly addressed evidentiary objections brought to his attention, and gave a curative instruction when requested. Any prejudicial effect of the testimony relied upon by Green is also far outweighed by the overwhelming evidence of his guilt. Thus, the Superior Court was not required to grant Green a new trial based on the evidentiary issues raised by Green (emphasis not in the original).[2]

         On January 5, 2017 Green filed a pro se motion for postconviction relief and Motion for Appointment of Counsel. The Motion for Appointment of Counsel was granted on January 23, 2017.[3]

         FACTS

         Following are the facts as set forth by the Delaware Supreme Court:

(3) Mother and her three daughters lived for a time in Connecticut, but moved to Mother's sister's house in Camden, Delaware due to conflict between Mother and Green. In February 2012, Mother and her daughters then moved to Kent Acres in Dover, Delaware. Green soon moved into the Kent Acres home. The five then moved to another home on Thames Drive in Dover. In August 2013, they again moved, this time to Stevens Street in Kent County just south of Dover. The victim and her older sister shared a bedroom in the Stevens Street home.
(4) On May 28, 2014, the victim stayed home from school because she did not feel well. That evening, Mother left the house at around 8 p.m. to go bowling. The victim's older sister was away from the house at work. After the youngest daughter went outside to play, the victim and Green were the only ones in the house. Green went into the victim's bedroom while she was sleeping and removed her clothes. Green then sexually assaulted the victim. When the victim's older sister came home from work after missing calls from the victim, the victim told her that Green raped her. Green had gone 'out somewhere' and was not at the house when the victim's older sister returned. The victim's older sister called 911.
(5) When a police officer arrived at the Stevens Street home around midnight, they spoke with the victim and collected the clothes she wore during the assault. Once Mother returned home, the officer accompanied Mother, the victim, and the victim's sisters to Kent General Hospital for a medical examination. Dawn Culp, a sexual assault nurse examiner, examined the victim. Culp swabbed the victim's chest for seminal fluid residue and noted abrasions in the victim's vagina. A DNA analysis of seminal fluid stains from the victim's clothes and the swab from her breast revealed a match with Green's DNA.
(6) On February 2, 2015, a grand jury indicted Green on fifteen counts of sexual assault. The indictment alleged that four counts occurred at the Kent Acres home, four counts occurred at the Thames Drive home, and the remaining seven counts occurred at the Stevens Street home.
(7) At Green's June 2015 trial, the victim, the Mother, victim's older sister, and Culp testified. The victim, who was fourteen at the time, testified that Green raped her on three separate occasions, once at each of their homes. The victim's older sister testified that when she returned from work the night of the May 2014 incident, the victim told her that Green raped her and that it was not the first time. Mother testified that after she came home from her bowling league, police were at the house. She also testified that she went to the hospital with her daughters where the victim was crying and did not want to talk about the incident. Culp testified that she performed an extensive examination of the victim. During her examination, she found abrasions in the victim's vagina and swabbed for DNA material. The DNA taken from the victim's clothes and breast matched Green's DNA.
(8) As part of some background questions about Green's relationship with Mother, the victim's older sister testified that she had problems with Green because "He would hit [her] mom." Green's counsel did not object. Mother also testified that she and her daughters moved from Connecticut to Delaware because she and Green had a fight while living in Connecticut and he threatened to kill them. Green's counsel objected and the court sustained the objection. Counsel did not request a curative instruction.
(9) During Gulp's testimony, in response to a question about whether the victim's complaints were consistent with the injuries she found, Culp responded that she believed what the victim told her about what occurred. Green's counsel objected to Culp's vouching for the credibility of the victim. The court sustained the objection and instructed the jury to disregard Culp's personal opinion testimony on the victim's credibility. After trial the jury found Green guilty of three of ...

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