State v. Hardwick
| Decision Date | 07 June 2011 |
| Docket Number | CRIMINAL ACTION NUMBERS IN-08-03-1247 thru IN-08-03-1274,ID No. 0709006233,IN-08-03-1245,IN-08-03-1281, IN-08-03-1282 |
| Parties | STATE OF DELAWARE v. JAMES HARDWICK Defendant |
| Court | Delaware Superior Court |
Upon Motion of Defendant for Post Conviction Relief
- DENIED
Appearances:
James Kriner, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for State of Delaware
Andrew Witherell, of Wilmington, Delaware, Attorney for Defendant James Hardwick
HERLIHY, Judge James Hardwick has moved for Postconviction relief. He was convicted of 29 counts of rape in the first degree and two counts of attempted rape in the second degree. He was sentenced to thirty-one life sentences. As a result of a prior rape conviction of a step-daughter in Pennsylvania, Hardwick's sentences for first degree rape were enhanced to life imprisonment. The sentences for the two first convictions of rape second were enhanced to twenty-five years to life.1 His convictions were affirmed.2
Hardwick's motion, originally pro se, raises a number of grounds to support his claim for relief. The Court appointed new counsel for Hardwick who declined the Court's invitation to modify the claims, if needed, after consultation with Hardwick.3 For organizational purposes, the Court will not detail them here but will list each claim, his trial counsel's response, the State's response and Hardwick's response to the latter two.
The twenty-nine counts of rape in the first degree involved two underage females who were twelve and thirteen at the time. One of the counts of attempted rape involved one of the females and other count involved a potential but not a real victim, which will be discussed in the context of the evidence. As the Supreme Court did in its affirmance,this Court will use pseudonyms; the same two as the Supreme Court did.4
Alice Smith was born on June 21, 1993. Her mother "met" Hardwick online on December 13, 2003, and personally met him January 2, 2004. He was 44 at that time. They married on February 19, 2004. Hardwick had a teenage nephew, Matthew Hardwick, who lived from time to time at the Smith/Hardwick residence. One of Alice's friends was Peggy Lane who was born on April 11, 1992. The families knew each other through church and a swimming pool.
The first nine counts of the indictment charged rape first degree involving Alice occurred during the period February 1, 2004 and September 5, 2007.5 She testified that Hardwick performed oral sex on her over a period of time. He threatened her in various ways to keep her from telling her mother.
These acts were apparently different from what turned out to be the major precipitating event setting in motion all that followed. In the summer of 2005, Peggy wasover at Alice's home for a sleep over. Late in the evening, Hardwick was watching some pornographic material on a PC. He either called the two girls, then twelve and thirteen, over to him or they got curious about what he was viewing and went over to him. After watching it a while, he asked them if they would like to learn to do what was showing on the PC. The three went down to the basement where he showed them Playboy magazines.
In the basement, Alice and Peggy read several issues of Playboy which Hardwick gave them. He again asked if they would like for him to "teach" them what they had seen. The sexual acts involving all three began. All were eventually naked. Some of it was inside a dog cage. There were various forms of sexual acts vaginal, anal, and oral. Alice and Peggy participated.6
Later in the same week, the two girls and Hardwick went to a location in Delaware City. Matthew Hardwick was there, too, as was Peggy's sister, Kay.7 Kay and Alice went out on an errand. Hardwick, Matthew and Peggy engaged in sexual acts, including Hardwick and Peggy having anal intercourse; she was thirteen when this occurred. There were other incidents of sexual intercourse on other visits to the place in Delaware City.8Most involved Hardwick, a few involved Matt, according to Peggy. There was oral sex by Hardwick on Peggy and vice versa, but she never saw Hardwick and Alice engage in anal intercourse. There were other incidents where, according to Peggy, Hardwick, Matt, Alice and she were engaging in various kinds of intercourse and oral sex. There were many occasions of "foursomes," which Peggy said ended in April or May 2006.9
Peggy said Hardwick used pornography as a precursor to their sexual experiences. He referred to them as "lessons." She told the police she had vaginal intercourse with Matthew on a lot of occasions, when she testified he knew her age, as well as with Hardwick. She and Hardwick went to his place, apparently an office, in Delaware City on several occasion and each time there was sex.
Twenty-two of the Counts involved the charge of rape first degree involving Peggy.10 Peggy testified there were six to eight occasions of anal sex and twenty to thirtyoccasions of vaginal sex with Hardwick. She recalled that the number of occasions of oral sex was around twenty times.
For a while, Peggy and Matt became "boyfriend" and "girlfriend." It had started in May 2005 and at various times broke off, finally ending in January 2007. Matthew did not testify at trial.
Peggy first talked to a church counselor about all of this and, then shortly thereafter, spoke to Det. Andrew Rubin of the Newark Police Department on July 11, 2007. After some discussion with Peggy and her parents about Peggy making a pretext phone call to Hardwick, Peggy called Hardwick. They spoke to each other three times over two days on August 28 and 29, 2007, the first call being from Peggy to him on his cell phone. All were recorded with her parents' consent. The police gave her "talking points." She described her boyfriend's unsatisfactory (alleged) attempts at oral sex to which he asked if she wanted a "refresher" course. The idea, he said, was to get her as "hot" as she could be.
Hardwick asked Peggy when she wanted to do it. She asked if she could bring a friend (there was no "friend" who was going to be there). He asked Peggy if she remembered Delaware City. He said she needed to be really aroused and have energy to do anal intercourse. He spoke to her of past acts of oral sex on him and how she had been rewarded. Hardwick said the girlfriend Peggy was bringing had to be trusted. Peggy said she was fifteen and Hardwick said that was okay.
They set up a meeting in front of a store at Peoples' Plaza in Glasgow at 10:00 a.m. on September 5, 2007. Hardwick showed up as arranged. He was arrested. When searched the police found a condom in his pants pocket. They recovered a cell phone with the same number Peggy had called in late August.
Hardwick was indicted on November 26, 2007. His first case review was January 28, 2008, and his final case review was on May 19, 2008. He went to trial on May 28, 2008 and the jury's verdict was on June 3, 2008. As noted, after sentencing, he appealed and his convictions were upheld.
Before undertaking consideration of the issues Hardwick raises in his current motion, the Court is required to determine if there are any procedural impediments todoing so.11 The mandate was issued May 8, 2009. His motion was filed June 16, 2009.12Hardwick's current motion was timely filed. Counsel was appointed in July 2009 to represent him on his motion. There is a procedural bar, however, to Hardwick's first ground for relief, namely that the Court erred in several of its instructions to the jury. One error now claimed is in regard to the instruction on unanimous verdict and the other involves the Court's instruction on witness credibility.
On appeal, Hardwick, however, argued only that the Court erred by not giving a missing witness instruction covering Matthew Hardwick's non-appearance at trial. Hardwick's motion makes several claims of ineffective assistance of counsel relating to Matthew's non-appearance which are discussed later.13 His claim of erroneous jury instructions on the two above issues was not raised on appeal but could have and should have been and is, therefore, barred.14 To overcome that procedural bar, Hardwick has toshow cause for relief and prejudice.15 He cannot and has not offered anything to address either prong.16 Hardwick's claim of erroneous jury instructions is procedurally barred andhe has not shown why he entitled to relief from that bar.
The balance of Hardwick's motion is a laundry list of claims of ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel Hardwick must show that his lawyer's conduct fell below an objective standard of reasonableness and but for counsel's conduct, there is a reasonable probability the outcome of his trial would have been different.17 Defense counsel's actions are entitled to a strong presumption that they were professionally reasonable.18 When evaluating a claim of ineffectiveness, the Court must strive to eliminate the "'distorting effects of hindsight'."19
Hardwick asserts that trial counsel failed to have two alibi witnesses testify at trial. One is apparently Marlene Ciehoshi. His motion lacks her name and is vague about her; trial counsel uses her name in response to Hardwick's motion. Hardwick says she would have testified when the alleged events occurred and would have provided an alibi. Trial counsel indicates an investigator interviewed her but that she could not recall dates sufficient to provide an alibi. Trial counsel chose not to have her testify. Hardwick's response to counsel's reply did not address this witness or what trial counsel said.
The other alleged alibi witness whom Hardwick faults counsel for not producing is his nephew, Matthew. There is no question Matthew did not testify. His absence was an issue raised at...
To continue reading
Request your trial