IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE
Submitted: February 22, 2002
Decided: April 29, 2002
On Defendant’s Pro Se Motion for Postconviction Relief.
This 29th day of April, 2002, upon consideration of a pro se Motion
for Postconviction Relief filed by Kevin Washington (the “Defendant”), it
appears to the Court that:
Defendant has filed this Motion for Postconviction Relief (the
“Motion”) pursuant to Superior Court Criminal Rule 61. For the reasons
stated below, Defendant’s Motion is DENIED.
On April 31, 1998, Defendant was convicted by a jury of two
counts of Unlawful Sexual Intercourse First Degree, one count of Unlawful
Sexual Contact Second Degree, and one count of Unlawful Sexual
Penetration Third Degree. The charges against Defendant involved sexual
assaults against his then eight-year-old daughter. The charges came to light
when the victim related the incidents to her mother, the defendant’s former
wife. The child later repeated the allegations to the police and to a social
worker. The child, her mother, and the examining physician testified at
Defendant’s trial. The examining physician testified that the evidence was
inconclusive as to physical manifestations of sexual abuse. Defendant
denied the assaults and claimed that the charges were prompted by the
vindictiveness of his former wife.
Following his conviction, Defendant was sentenced to 70 years at
Level V for the two Unlawful Sexual Intercourse First Degree charges; two
years at Level V for the Unlawful Sexual Penetration Third Degree charge;
and two years at Level V (suspended after one year for one year at Level IV)
for the Unlawful Sexual Contact Second Degree charge.
Defendant raised three grounds of “plain error” on appeal to the
Supreme Court: admission of evidence of marital abuse towards his former
wife; admission of bad character evidence depicting the “stormy
relationship” between Defendant and his former wife; and the sufficiency of
the evidence as to the charge of Unlawful Sexual Contact Second Degree.
The Supreme Court affirmed, writing that its “rejection of [Defendant’s]
plain error claims in this direct appeal does not preclude the later assertion of
an ineffective assistance of counsel claim under Superior Court Criminal
Rule 61.”1 Defendant now brings this Motion under that Rule.2
Defendant raises five grounds in the current Motion. Grounds
One, Four, and Five are ineffective assistance of counsel claims; Defendant
argues that counsel failed to file requested pretrial motions, failed to
subpoena requested witnesses, and failed to allow Defendant to speak in
court, requesting instead that Defendant “remain silent upon entering the
court room…[because] it would look good if [Defendant] showed that [he]
was under control.” In Ground Two of his Motion, Defendant argues a
speedy trial violation, writing that the “trial court allowed unnecessary delay
in favor of the State under multiplicity [sic] violations which violated due
process and also showed bias.” And in Ground Three of his Motion,
Defendant argues that “prosecutorial misconduct was shown towards
[D]efendant”; Defendant alleges this “misconduct” was the result of an
Washington v. State, 2000 WL 275638 (Del. Supr.).
Following his direct appeal, Defendant also filed in this Court a “Motion to Access the
Evidence for Purposes of DNA Testing”. This Court denied that motion, in part because
there was no relevant physical evidence produced at trial which could have been
subjected to DNA forensic testing, and in part because Defendant had otherwise failed to
satisfy the statutory requirements necessary for a motion requesting the performance of
forensic DNA testing. State v. Washington, 2000 WL 33115698 (Del. Super.).
In response, the State argues that Grounds Two and Three of the
Motion (those claims Defendant makes which are unrelated to defense
counsel’s performance) are procedurally barred under Superior Court
Criminal Rule 61(i)(3)3; the State argues that Defendant has not shown why
that rule should not otherwise apply. Alternatively, the State argues that
Defendant’s claim of prosecutorial misconduct is barred under Superior
Court Criminal Rule 61(i)(4)4; the State argues that that claim had been
previously adjudicated by the Delaware Supreme Court on direct appeal.
The State argues that Defendant has otherwise failed to show that the
interest of justice warrants reconsideration of that claim.
Regarding Defendant’s ineffective assistance of counsel claims, the
State argues that Defendant has failed to “rebut [the] presumption” under the
“high standard” enunciated in Strickland v. Washington5 that counsel was
both reasonable and professional in his representation of Defendant.
That rule provides that “[a]ny ground for relief that was not asserted in the proceedings
leading to the judgment of conviction…is thereafter barred, unless the movant shows (A)
[c]ause for relief from the procedural default and (B) [p]rejudice from violation of the
movant’s rights.” Super. Ct. Crim. R. 61(i)(3).
That rule provides that “[a]ny ground for relief that was formerly adjudicated, whether
in the proceedings leading to the judgment of conviction, in an appeal, in a
postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred,
unless reconsideration of the claim is warranted in the interest of justice.” Super. Ct.
Crim. R. 61(i)(4).
446 U.S. 668 (1984).
At the Court’s request, defense counsel submitted an affidavit of his
recollection of the matter. Defendant’s public defender file was previously
sent to archives and destroyed. Counsel, in response to Defendant’s
argument that he failed to file requested pretrial motions, states that
Defendant’s case “involved an issue of credibility between defendant and his
own child and…there weren’t any substantial legal issues to be addressed
pre-trial or during trial.”6 Regarding Defendant’s statement that he should
have been allowed to speak in court, counsel replies “to advise otherwise
[than to “stay under control and make an appropriate appearance before the
jury”] would have been inappropriate.”7 Finally, defense counsel states that
he cannot respond to Defendant’s claim that favorable witnesses were not
called because “Defendant does not specify [which] witnesses were…[not]
subpoenaed for trial, what their testimony would have been and what
prejudice he suffered as a result….”8
Before addressing the merits of any claim raised in a motion
seeking postconviction relief, the Court must first apply the rules governing
Winslow Aff. ¶ 2.
Winslow Aff. ¶ 8.
Winslow Aff. ¶ 7.
the procedural requirements of Superior Court Criminal Rule 61.9 Rule
61(i)(3) provides that “any ground for relief that was not asserted in the
proceeding leading to the judgment of conviction…is thereafter barred,
unless the movant shows (A) [c]ause for relief from the procedural default
and (B) [p]rejudice from violation of the movant’s rights.” The procedural
bar of Rule 61(i)(3) may potentially be overcome by Rule 61(i)(5), which
provides that “[t]he bar[ ] to relief in paragraph[ ]…(3)…shall not apply to a
colorable claim that there was a miscarriage of justice because of a
constitutional violation that undermines the fundamental legality, reliability,
integrity or fairness of the proceedings leading to the judgment of
conviction.” This “fundamental fairness” exception contained in Rule
61(i)(5) is “a narrow one and has been applied only in limited circumstances,
such as when the right relied upon has been recognized for the first time
after [a] direct appeal.”10 Additionally, Rule 61(i)(4) provides that “[a]ny
ground for relief that was formerly adjudicated, whether in the proceedings
leading to the judgment of conviction, in an appeal, in a postconviction
proceeding, or in a federal habeas corpus proceeding, is thereafter barred,
unless reconsideration of the claim is warranted in the interest of justice.”
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554
(Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Younger , 580 A.2d at 555.
The “interest of justice” exception of Rule 61(i)(4) has “been narrowly
defined to require the movant to show that the trial court lacked the authority
to convict or punish [the movant].”11
Defendant now raises for the first time the alleged violation of
his right to a speedy trial. Because he did not assert this claim at trial or on
appeal, i.e., “in the proceeding leading to the judgment of conviction,”
Defendant’s speedy trial argument is potentially barred by Superior Court
Civil Rule 61(i)(3). In order to overcome that procedural bar, Defendant
must show both cause for relief and prejudice, or otherwise qualify for the
“fundamental fairness” exception contained in Rule 61(i)(5). The totality of
Defendant’s argument on this ground is that “trial court allowed unnecessary
delay in favor of the state under multiplicity [sic] violation which violated
due process and showed bias.” Defendant has failed to explain his argument
other than to offer the above-quoted conclusory and unsubstantiated claim.
The Court will not address claims of cause for relief and prejudice that are
conclusory and unsubstantiated.12 Defendant’s claim of a violation of his
right to a speedy trial is therefore without merit.
State v. Wright, 653 A.2d 288, 298 (Del. Super. Ct. 1994) (citing Flamer v. State, 585
A.2d 736, 746 (Del. 1990)
Zimmerman v. State, 1991 WL 190298 (Del. Super. Ct.) (citing State v. Conlow, Del.
Super., Cr.A. Nos. IN-78-09-0985-R1, Herlihy, J. (Oct. 5, 1990)).
Defendant raised on direct appeal the sufficiency of the
evidence relating to the charge of Unlawful Sexual Contact Second Degree
for which he was convicted. Defendant’s claim that “prosecutorial
misconduct was shown towards defendant” because of “improper indictment
under elements of the charges” is therefore barred by Superior Court
Criminal Rule 61(i)(4) “unless reconsideration of the claim is warranted in
the interest of justice.” As previously stated, however, the “interest of
justice” exception is narrow and requires a showing that this Court lacked
the authority to convict or punish. Defendant has not made a showing that
the interest of justice requires reconsideration of the sufficiency of the
evidence for which a jury convicted him. Defendant’s claim of
“prosecutorial misconduct during sentencing” is therefore also without
To succeed on a claim of ineffective assistance of counsel, a
defendant must show that “counsel’s representation fell below an objective
standard of reasonableness” and “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result would have been
different.”13 In attempting to establish a claim of ineffective assistance of
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland v. Washington, 466
U.S. 668, 688, 694 (1984)).
counsel, the defendant must allege concrete allegations of actual prejudice
and substantiate them.14 Defense counsel’s performance should be evaluated
by eliminating “the distorting effects if hindsight” or speculation about what
trial counsel could have done better.15 Moreover, any "review of counsel's
representation is subject to a strong presumption that the representation was
Defendant contends that counsel’s performance fell below an
objective standard of reasonableness and that had counsel adequately
represented him at trial, the outcome of Defendant’s case would have been
different. In support of his assertions, Defendant argues that defense counsel
should have investigated and challenged the chain of custody of any DNA
evidence, as well as retained an expert to rebut the examining physician’s
testimony that the evidence was inconclusive as to physical manifestations
of sexual abuse. Defendant also argues that counsel failed to preserve issues
for appeal, apparently because counsel did not object when there was no
relevant physical evidence produced at trial and the examining physician
Younger, 580 A.2d at 555-56.
Gattis v. State, 697 A.2d 1174, 1178 (1997).
Flamer, 585 A.2d at 753.
testified that the evidence was inconclusive. Defendant believes that the
destruction of his public defender file is prejudicial to his current motion.
Despite Defendant’s assertions, the Court finds that resolution of his
case ultimately turns on issues of credibility, which are for a jury to decide.
In Defendant’s case, a jury convicted him and the Supreme Court affirmed.
Given that there was no relevant physical evidence produced at trial and the
examining physician testified that the evidence was inconclusive, counsel’s
attempts to portray Defendant’s former wife as vengeful and motivated by
an effort to get rid of him through manufactured charges appear to this Court
to have been reasonable. Counsel’s tactics apparently were effective, given
that Defendant’s former wife admitted that she “wanted [him] out of [the]
house [and] out of [her] life.”17
The Court understands Defendant’s argument that the destruction of
his public defender file may potentially be prejudicial. However, defense
counsel submitted a sworn statement of his recollection of Defendant’s case.
In his affidavit, counsel notes that there were not any substantial legal issues
to be addressed pretrial or during trial. Counsel believes he did “a vigorous
job in defense of [D]efendant and that any possible legal issues were
Washington v. State, 2000 WL 275638, at *1 (Del. Supr.).
preserved for appeal.”18 Defendant should not now be heard to complain of
his conviction by the jury.
Counsel is empowered to make tactical decisions at trial.19 The
decision to pursue a particular defense and eschew another is usually based
on informed strategic choices.20 Given the strong presumption that
counsel’s representation was professionally reasonable, this Court cannot
now say that counsel’s tactics were prejudicial to Defendant. This is
especially so given that credibility was the central issue and given that there
was a lack of relevant physical evidence upon which Defendant could have
asserted his defense. Defendant has therefore failed to prove ineffective
assistance of counsel.
For the reasons stated above, Defendant’s Motion for
Postconviction Relief is DENIED.
IT IS SO ORDERED.
Peter W. Veith, Esquire, Deputy Attorney General
Kevin L. Washington
J. Dallas Winslow, Jr., Esquire
Winslow Aff. ¶ 6.
Strickland, 466 U.S. at 690
Id. at 691.