Green v. State

• Decision Date: 17 August 2020
• Docket Number: No. 552, 2019,552, 2019
• Citation: 238 A.3d 160
• Parties: Todd GREEN, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

238 A.3d 160

Todd GREEN, Defendant Below, Appellant,

v.STATE of Delaware, Plaintiff Below, Appellee.

No. 552, 2019

Supreme Court of Delaware.

Submitted: June 3, 2020

Decided: August 17, 2020

Benjamin S. Gifford, IV, Esquire, Wilmington, Delaware for Appellant Todd Green.

John R. Williams, Esquire, Department of Justice, Dover, Delaware for Appellee State of Delaware.

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

TRAYNOR, Justice:

Todd Green appeals from the Superior Court's denial of his motion for postconviction relief under Superior Court Criminal Rule 61. Green was arrested during the first week of June 2014 after his girlfriend's thirteen-year old daughter reported to her sister, a sexual abuse nurse examiner, and a Child Advocacy Center forensic interviewer that Green had raped her on the evening of May 28, 2014 and that "it wasn't the first time."¹ A Kent County grand jury returned a twenty-two count indictment against Green, and after a five-day trial in the Superior Court, a jury convicted him on three of those counts: attempted rape in the second degree, attempted sexual abuse of a child, and unlawful sexual contact in the second degree. After a pre-sentence investigation, the Superior Court sentenced Green to a cumulative period of Level V incarceration of 50 years and nine months.

Green appealed his convictions to this Court, arguing that the jury's exposure to several instances of inadmissible testimony had a "cumulative prejudicial effect"² and deprived him of a fair trial. We rejected that argument and affirmed the Superior Court's judgment, concluding that "[a]ny prejudicial effect of the testimony relied upon by Green [was] ... far outweighed by the overwhelming evidence of his guilt."³

Green then filed a timely pro se motion for postconviction relief, which was amended after the Superior Court appointed counsel. In his motion, Green alleged that his trial counsel was ineffective throughout the trial in violation of his Sixth, Eighth, and Fourth Amendment rights under the United States Constitution and under Article I, § § 4, 7, and 11 of the Delaware Constitution. Several of the issues at the heart of Green's ineffective-assistance claims were touched upon in our order denying Green's direct appeal, but a few were not. So Green also alleged in his motion that his counsel on direct appeal was ineffective for not raising those issues.

As will be discussed more fully below, a Superior Court Commissioner "recommend[ed] that Green's motion be denied as procedurally barred by Rule 61(i)(3) and (4) for failure to prove cause and prejudice and as previously adjudicated."⁴ The trial judge, without addressing the commissioner's procedural-bar analysis, adopted the Commissioner's Report and Recommendation and denied Green's motion.

In this appeal, Green drops his claim that his appellate counsel was ineffective but challenges the Superior Court's determination that his claims were procedurally barred and that his trial counsel rendered constitutionally effective representation. Although we agree with Green that his claims were not procedurally barred under Rule 61(i)(3) and (4), we conclude that Green's trial counsel's performance, viewed as a whole, did not fall below an objective standard of reasonableness. And we also agree with the Superior Court that Green has failed to show that but for his trial counsel's decisions—to the extent that their reasonableness might be questioned—it is reasonably probable that the outcome of his trial would have been different. Therefore, we affirm.

I. BACKGROUND

A. Factual Background

For the two years preceding his arrest, Green lived with Sarah Perkins's⁵ mother, Tracy Flambeau, and her three daughters—Sarah (the complaining witness), Cindy Flambeau, and Tia Green—at three different residences in the Dover/Camden area: one in a subdivision known as Kent Acres, another a townhouse on Thames Street, and most recently in a house on Stevens Street. Tia is Green's biological daughter; Sarah and Cindy are not. Although Green and Tracy were not married, Sarah and Cindy considered Green to be their stepfather, and Sarah even referred to Green as "Dad." When Green was arrested, he was 35 years old; Sarah was a 13-year-old seventh grader.

According to Sarah, Green first sexually assaulted her approximately two years earlier when she was in the fifth grade. On that occasion, Green entered Sarah's bedroom, closing the door behind him. He then removed Sarah's pants and engaged in both oral/vaginal and penile/vaginal intercourse with her. Because Sarah felt as though she "couldn't trust anybody,"⁶ she did not tell anyone of the rape.

The following year, Green attacked Sarah again, this time in the basement of a townhouse into which the family had moved during the summer of 2012. Sarah was playing a video game when Green entered the basement, this time locking the door behind him. Sarah reported that Green then removed her clothing and "raped" her meaning "he licked [her] vagina ... and penetrated [her] vagina"⁷ with his penis. Green also attempted anal intercourse on that occasion. Once again, because she was "scared," Sarah did not tell anyone about this assault.

Fast forward yet another year. Sarah was now 13 years old and finishing her seventh-grade year. The family had moved to another house—this one on Stevens Street—since Green raped Sarah in the basement of the townhouse. It was the evening of May 28, 2014, and, because her mother had gone bowling and her sister Cindy was at work, Sarah was babysitting her half-sister Tia. At first, she and Tia were home alone as Green had taken Tracy to the bowling alley.

As Sarah slept in her bedroom with her door locked, Green unlocked the door with a key and "began to take Sarah's clothes off. [He] then licked Sarah's side [and breast,] kiss[ed] down [her legs], and ... licked [her] vagina .... [W]hen he was done, he penetrated [Sarah's] vagina with his penis."⁸ Sarah explained that she tried to resist, kicking Green in his chest. Undeterred, Green ejaculated "on [Sarah's] butt [and then] wiped it off"⁹ before leaving Sarah's bedroom.

Unlike the earlier assaults after which Sarah was too fearful to report what Green had done, this time Sarah "felt like [she] needed to tell somebody [because] [i]t was just time."¹⁰ After discussing the matter with two friends, she tried to call her sister Cindy at work but could not get through. Eventually Cindy came home from work, and Sarah told her that "Todd raped me[,] and it wasn't the first time,"¹¹ prompting Cindy to call 911.

In short order, the Delaware State Police responded to Cindy's call. The first officer on the scene, Trooper Thomas Ford, spoke with Cindy as the reporting person, and then "ask[ed] a couple very brief questions" of Sarah so that he could identify the crime scene and preserve physical evidence. After Sarah identified the clothing she was wearing at the time of the assault, Trooper Ford "collected those items and put them in an evidence package and secured them in [his] vehicle."¹² One of those articles of clothing was a pink "skort"—a pair of shorts that resembles a skirt. Through forensic testing, sperm cells with a single-source DNA profile consistent with Green's known DNA profile were found on the skort.¹³

Trooper Ford remained with Sarah until her mother returned home from the bowling alley. He then accompanied Sarah and her mother and sisters to the hospital for a medical examination by a sexual assault nurse examiner ("SANE"), Dawn Culp. Culp, among other things, swabbed Sarah's chest and noted abrasions in her vagina. The State's forensic DNA analyst later extracted a mixed DNA profile from the swabbing of Sarah's right breast. The major contributor to that mixed profile had a profile consistent with the known profile of Todd Green.¹⁴

The next day, a forensic interviewer from the Child Advocacy Center ("CAC") interviewed Sarah. After observing the CAC interview and collecting photographic evidence from Sarah's bedroom, the chief investigating officer applied for an arrest warrant and, on June 5, 2014, Green was arrested and charged with twelve sexual offenses, the earliest of which was alleged to have been committed in February 2012 when Sarah was 11 years old and the last of which occurred on the night of Sarah's report to her sister.

B. Procedural Background

1. Indictment and Re-Indictment

In September 2014, the grand jury returned an indictment, charging Green with twelve offenses. Three months later, Green filed a motion for a bill of particulars, seeking additional information about each of the charges. Specifically, Green asked the State to disclose, among other things, (1) the location and time of day for each offense; (2) for those charges alleging intercourse, the nature ("penile/vaginal, oral, anal, etc.")¹⁵ of the intercourse; and (3) for the charges alleging unlawful sexual contact, the nature of the contact. After the State filed the requested bill of particulars, it presented the matter to the grand jury again, and this time the grand jury returned a twenty-two count indictment. So the State updated its bill of particulars.

As we understand the second indictment, which was the operative indictment at Green's trial, and the updated bill of particulars, the twenty-two counts can be divided into five subsets. The first subset of charges (Counts 1 through 4), according to the State, was committed between February 1, 2012 and August 30, 2012 in Sarah's bedroom in her family's Kent Acres residence. Likewise, the second subset (Counts 5 and 6) was committed in Sarah's bedroom in the Kent Acres house, but between April 1, 2012 and May 30, 2012. The third subset (Counts 7 through 10) occurred in the basement of Sarah's family's Thames Street residence between August 1, 2012 and August 31, 2013. The fourth subset (Counts 11 through 14) occurred between April 15, 2014 and May 15, 2014 in an unidentified room within the family's Stevens Street residence. And the fifth subset...