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State v. Green

Superior Court of Delaware, Kent

November 21, 2019

STATE OF DELAWARE
v.
TODD GREEN, Defendant.

          Submitted: October 25, 2019

         RK15-02-0044-01 Att Child Abuse (F) RK15-02-0049-01 Att Rape 2nd (F) RK15-06-0362-01 Unlaw Sex Con (F)

          ORDER

          Jeffrey J Clark Judge.

         On this 21st day of November, 2019, upon consideration of Defendant Todd Green ("Mr. Green")'s motion for postconviction relief, the State's response, the Commissioner's Report and Recommendation, Mr. Green's exceptions, and the record in this case, it appears that:

         1. The State prosecuted Mr. Green for various sex offenses. The matter was tried before a jury in June 2015.

         2. At the conclusion of the State's case, trial defense counsel successfully moved for a judgment of acquittal on several counts. Namely, the Court entered a judgment of acquittal regarding 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. At the conclusion of the trial, the jury found Mr. Green guilty 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. It found him not guilty of the following: 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; one count of Attempted Rape in the Second Degree; and one count of Unlawful Sexual Contact in the Second Degree.

         3. The Court then ordered a presentence investigation. On September 15, 2015, the Court sentenced Mr. Green to sixty-eight years of incarceration suspended after fifty years and nine months, for varying levels of probation. Fifty years of the unsuspended sentence constituted a minimum mandatory sentence.

         4. Mr. Green then appealed the matter to the Delaware Supreme Court. He contended that the cumulative effect of irrelevant and prejudicial testimony deprived him of a fair trial. In its decision, the Supreme Court held that the challenged testimony did not jeopardize Mr. Green's right to a fair trial and did not change the outcome of the trial. Accordingly, it affirmed his convictions and sentences.[1] When doing so, the Supreme Court addressed the cumulative effect of the evidence admitted without defense objection.[2] It found that the cumulative effect of the challenged testimony and evidence did not jeopardize trial fairness.[3]

         5. Mr. Green next filed a pro se motion for postconviction relief and motion for appointment of counsel. The Court appointed Rule 61 counsel on January 23, 2017.[4]Mr. Green then filed an amended motion for post conviction relief. In it, he advances an ineffective assistance of counsel claim. He alleges that trial counsel's representation was objectively unreasonable because of her failure to object in certain circumstances and to request a mistrial in others. He also alleges that the cumulative impact of these failures caused him prejudice.

         6. After considering Mr. Green's motion, the State's response, and the record, the Commissioner issued her Report and Recommendation. In it, she recommended that the Court deny Mr. Green's motion.

         7. Mr. Green then filed written exceptions to the Commissioner's Report and Recommendation. Primarily, he alleges that the Report and Recommendation conflate the Supreme Court's decision on direct appeal and the Strickland analysis required in the present motion. The Court disagrees. First, trial counsel's performance was reasonable. In large part, his trial counsel's strategy was successful. Second, Mr. Green did not substantiate that, but for his trial counsel's allegedly unprofessional performance, the outcome of the proceedings would have been different.[5] Although the Supreme Court undertook a plain error analysis on direct appeal, its holding regarding the same alleged cumulative errors controls this aspect of Mr. Green's Rule 61 motion. When deciding the direct appeal, the Supreme Court examined the trial record and recognized the overwhelming evidence of Mr. Green's guilt.[6] That it did so under a plain error review does not obviate the applicability of its finding. Namely, the State recovered Mr. Green's DNA from the thirteen year old victim. That, coupled with eyewitness testimony and physical evidence of injury to the victim, provided overwhelming evidence of guilt sufficient to make inapplicable the second prong of the Strickland analysis. Namely, Mr. Green fails to demonstrate that but for his trial counsel's decisions, the outcome would have been different.

         NOW, THEREFORE, after a de novo review of the record, for the reasons discussed above, and for the reasons provided in the Commissioner's Report and Recommendation dated September 23, 2019;

         IT IS HEREBY ORDERED that the Commissioner's Report and Recommendation attached as Exhibit "A", is adopted by the Court in its entirety. Mr. Green's motion for postconviction relief pursuant to Superior Court Criminal Rule 61 is therefore DENIED.

         Exhibit A

         FREUD, Commissioner September 23, 2019

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

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

         COMMISSIONER'S REPORT AND RECOMMENDATION

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

         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, pro 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.[7]

         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).[8]

         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.[9]

         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 ...

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