Getz v. State
| Decision Date | 09 May 1990 |
| Docket Number | 1989,No. 364,364 |
| Parties | Charles R. GETZ, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted: |
| Court | United States State Supreme Court of Delaware |
Before MOORE, WALSH and HOLLAND, Justices.
This 13th day of September, 1990, it appears to the Court that:
(1) Defendant's counsel has filed a brief and moved to withdraw pursuant to Supreme Court Rule 26(c). The defendant has submitted a supplemental statement with fifteen points. The defendant alleges that the Superior Court erred or abused its discretion in denying various motions and objections presented during trial by counsel and post-trial by the defendant pro se. Although presented in a rambling and disjointed fashion, these motions and objections will be considered in seriatim.
(2) The State has answered the Rule 26(c) brief and moved to affirm the judgment.
(3) Defendant was charged with Rape in the First Degree. His first trial resulted in a conviction but, upon appeal, this Court reversed that conviction and remanded for a new trial. Getz v. State, Del.Supr., 538 A.2d 726 (1988). Upon retrial, the victim, the defendant's daughter, who was 12 years old at the time of the incident, testified that the defendant had sexual intercourse with her in March of 1986. The victim stated that during sexual intercourse the defendant was interrupted by the noise created as her stepmother was walking about the house. The following day, the victim, when questioned by her stepmother, denied engaging in sexual intercourse with the defendant. A few weeks later, a violent domestic dispute developed. When the State Police arrived, the victim reported to them the fact that she had engaged in sexual intercourse with the defendant. She was then examined by Dr. Walter Kuhn. After examining the victim, Dr. Kuhn testified that her hymen was partially intact and only a small amount of it was visible at the left base. He stated that this was consistent with the story the victim had related to the police and to him. The defendant denied the claims of his daughter and wife and the jury was thus left with a determination of credibility.
(4) The standard and scope of review applicable to a motion to withdraw and an accompanying brief under Supreme Court Rule 26(c) is two-fold: (1) this Court must be satisfied that defense counsel has, in fact, made a conscientious examination of the record and the law for arguable claims; and (2) this Court must conduct its own review of the record and determine that the appeal is so totally devoid of at least arguable issues that it can be decided without an adversary presentation. Penson v. Ohio, 109 S.Ct. 346, 350-51 (1988); see also McCoy v. Court of Appeals of Wisconsin, 108 S.Ct. 1895 (1988); Anders v. California, 386 U.S. 738 (1967). If the Court finds that the record fairly presents non-frivolous claims, then defense counsel should be permitted to withdraw and new counsel appointed. Penson v. Ohio, 109 S.Ct. at 350-51.
(5) The evidence presented by the State fully supports the conviction of the defendant of Rape First Degree. All elements of the crime are present. In essence, the jury was required to determine, as a matter of credibility, whether to believe the victim and the defendant's wife as opposed to the defendant's denial. The jury resolved that dispute adversely to the defendant. The State has proved that the defendant engaged in sexual intercourse with the victim and that the victim was not his voluntary social companion. State v. Hamilton, Del.Super., 501 A.2d 778 (1985).
(6) There is no basis to conclude that the Superior Court committed any error of law or abused its discretion in denying any of the various motions made by defendant. First, the Superior Court did not abuse its discretion in dismissing either of the defendant's Motions to Dismiss or the Motion of Acquittal for Insufficient Evidence. Dismissal of the indictment was not required because an indictment need only contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." Superior Court Criminal Rule 7(c). Moreover, all of the elements of Rape First Degree were present, see Hamilton, supra, therefore, an acquittal was not in order.
Second, the Superior Court correctly denied defendant's Motion for Judgment of Acquittal for Conflicting Testimony. The defendant sent a letter to the trial judge claiming that various witnesses and the prosecutor had perjured themselves. In addition to requesting an acquittal, the defendant requested that the court initiate criminal...
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