IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE ) ) v. ) C r. ID No. 1104021773 ) EDWARD McLAUGHLIN , ) ) Defendant. ) )

Upon the Motion of Defendant Edward McLaughlin for Post c onviction Relief

– DENIED Submitted: April 2, 2014 Decided: July 2 , 2014 Upon Motion to Withdraw as Counsel for Petitioner Edward McLaughlin
- GRANTED S ubmitted: April 2, 2014 Decided: July 2 , 2014 MEMORANDUM OPINION

Rocanelli, J.2 On April 26, 2011 , Edward McLaughlin was arrested on eight (8) counts of rape in the second degree of his 8 year

- old stepdaughter and two (2) counts of endangering the welfare of a child regarding the same alleged victim

. McLaughlin was ind icted by a grand jury on five (5) counts of rape in the second degree and was tried on these indictments in November of 2011. Counsel was appointed to represent McLaughlin at trial ( “ Trial Counsel”). The trial ended November 10, 2011 in a mistrial when the jury was unable to reach a unanimous verdict. On March 26, 2012 , McLaughlin was again indicted by a grand jury and on April 10, 2012 , a second trial

– in which Trial C ounsel relied on primarily the same strategy he employed in the first trial

– concluded with the jury finding McLaughlin guilty of four (4) counts of rape in the second degree . On July 6, 2012 , McLaughlin was sentence d to 100 years of incarceration

– 25 years for each count

– followed by 10 years of probation. McLaughlin challenged the grand jury indictments on the grounds that each of the rape charges was identical and therefore it was not possible to tell which

count referred to which alleged incident. The trial court fo und the indict ments to be valid and , upon appeal , the Delaware Supreme Cou rt affirm ed the convictions. After the Delaware Supreme Court affirmed the convictions, McLaughlin
filed a motion for postconviction relief on the grounds of ineffective assistance of counsel. J ohn Barber , Esquire was appointed to represent McLaughlin (“Rule 613 Counsel”)

. On March 18 , 2014 , Rule 61 Counsel filed a motion to withdraw from
repr esenting McLaughlin on the basis that the evidence did not support a good faith argument that McLaughlin’s trial counsel had been ineffective in representing him. McLaughlin responded to the motion filed by Rule 61 Counsel on April 2, 2014 challenging the conclusion that there was not sufficient evidence to demonstrate ineffective assistance of counsel, specifically challenging the cross

examination of the alleged victim. T he alleged victim was a child who, at the time of the incidents, was eight years old , and who was ten years old at time of the
trial s . McLaughlin was the victim’s legal guardian and acted as her step father from the time that custody was taken away from the victi m’s mother until McLaughlin was charged with raping her.

I. McLaughlin’s Rule 61 Motion for Postconviction Relief McLaughlin filed a Motion for Postconviction Relief on March 14, 2013 pursuant to Superior Court Criminal Rule 61 as a self

- represented litigant. 1 Rule 61 governs mot ions for postconviction relief. McLaughlin argue s that T rial
C ounsel’s cross

- examination of the alleged v ictim consisted only of questions about where the alleged victim had lived during her lif etime and w as irrelevant to
McL aughlin’s defense. McLaughlin argues that T rial C ounsel did not challenge

1 Del. Super. Crim. R. 61.4 the alleged victim’s motive for testifying and therefore “acq uiesced” to the S tate’s prosecution of him , resulting in a failure to subject the prosecution’s case to a meaningful adversarial testing. The Sixth Amendment guarantee s defendants in criminal trials the right to counsel. 2 In order to assure that the outcome of a criminal trial is just , defendants furthermore have “the right to effective assistance of counsel.” 3 To succeed on a claim for ineffective assistance of counsel, a defendant must show that (1) trial counsel’s rep resentation fell below an objective standard of reasonableness and (2) counsel’s conduct prejudiced defendant. 4 The U.S. Supreme Court has pointed to “prevailing professional norms” as the standard against which to judge the reasonableness of counsel’s rep resentation with great deference given to Trial C ounsel’s strategic judgments. 5 Simply because another strategy may have produced a better outcome in hindsight is not enough fo r a court to rule that a lawyer ’s assistance was ineffective, given the strong presumption that the assistance was adequate. 6 Even if it can be shown that a professionally unreasonable error is made by counsel, a defendant must still show that the error had an effect on the judgment. 7

2 Gideon v. Wainright , 372 U.S. 335 (1963). 3 McMann v. Richardson , 397 U.S. 759, 771 (1970). 4 Strickland v. Washington , 466 U.S. 668, 687

- 88 (1984). 5 Id . at 690. 6 Id

. 7 Id . at 692.5 Here , the court must look to see if there is a reasonable probability that the judgment would have been different had counsel not made the error. 8 This standard is lower than a preponderance of the evidence standard as it only needs to undermine confidence in the outcome of the trial. 9 Because a defendant must show both that an attorney made a pr ofessionally
unreasonable error and that the error had an effect on the judgment , failure to prove either is sufficient to defeat a claim of ineffective assistance.
Tri al Counsel made a strategic decision in this case not to dire ctly challenge the ten

- year old alleged victim’s story on cross

- examination. His professional experience with juries, as well as basic common sense, likely led him to conclude that aggressively questioning a child witness posed a serious risk of p rejudicing the jury against McLaughlin

. T rial counsel instead relied on McLaughlin ’s own testimony to refute the story given by the victim, providing an alternative to conviction if the jury found McLaughlin to be a more credible witness than the child victim

. Furthermore, T rial C ounsel had reason to believe that such a strategy could be effective because the first trial resulted in a hung jury: a result that was achieved using a similar l ine of qu estioning during cross

- examination. Because

8 Id . at 694. 9 Id

.6 this was a reasonable strategic decision in line with professional norms , Trial
C ounsel did not ma k e an unprofessional error

. 10 However, even if it were the case that Trial Counsel had made a professional

error by not more aggressively cross

- examini ng the alleged victim, McLaughlin would still need to show that the error had a n effect on the verdict. Given the extremely sympathetic nature of the child victim, and the impact that her testimon y had on the jury (as discussed on the record ) , avoiding aggressive cross examination was a reasonable strategy. In McLaughlin ’s trial , the child victim had the opportunity to present her story and McLaughlin testified as witness own his own behalf. As triers of fact, the j ury had the sole responsibility to judge the credibility of witnesses and resolve inconsistencies in testimony. Based on the verdict, it is clear that the jury accepted the testimony of the victim and rejected the contrary testimony of McLaughlin

. The Court notes that McLaughlin does not point to any specific line of questioning which may have undermined the alleged victim’s credibility

. G iven all the evidence presented at trial , it is unlikely that aggressive cross - examination of the child victim w ould have had an effect on the outcome of the trial. Furthermore, as was discussed above, there was also a chance that more aggressive cross

-

10 See Id.7 examination would have alienated the jury. There was no prejudice to McLaughlin.
II. Rule 61 Counsel’s Motion to Wit hdraw as Counsel for McLaughlin After reviewing the record to determine if there were any other meritorious grounds for relief and concluding that there are no meritorious grounds for relief , Rule 61 Counsel filed a Motion to W ithdraw as Counsel pursuant to Superior Court Criminal Rule 61(e)(2). Withdrawal may be appropriate when “counsel considers the movant’s claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief

ava ilable to the movant, [and therefore] counsel may move to withdraw.” 11 The Court must also conduct a review of the record to determine wh ether the d efendant’s motion contains any reasonable grounds for relief. 12
Rule 61 C ounsel has stated that he undertook a thorough analysis of the record to evaluate McLaughlin’s claim of ineffective assistance of counsel and has determined th at the claim do es not have enough merit to be ethically advocated. Specifically, Rule 61 Counsel has concluded that there is not suf ficien t evidence to conclude that McL aughlin’s trial counsel was ineffective. Rule 61 Counsel emphasizes that the jury’s inability to reach a guilty verdict in the first tria l i s evidence that the cross

- examination of the alleged victim was reasonable because

11 Sup. Ct. Crim. R. 61(e)(2). 12 State v. West , 2013 WL 6606833, at *3 (Del. Super. December, 12, 2013).8 the substance of the cross

- examination in both trials was substantially similar , and the jury failed to convict McLaughlin in the first trial

. Rule 61 C ounsel also reviewed the record to determine if any other meritorious grounds for relief exist, and concluded that there are no other meritorious grounds for relief. Finally, the Court, in Section I of this opinion, has reviewed McLaughlin ’s Motion for Postconviction R elief on the merits and has determined that there are no meritorious grounds for relief.
III. CONCLUSION There is no merit to the clai m s asserted by McLaughlin . Trial C ounsel made a strategic decision not to directly challenge the testimony of the alleged victim at trial, but instead elected to present the contrary testimony of McLaughlin and allow the jury to decide who m they believed. The alternative strategy, which McLaughlin argues ought to have been pursued, of aggressively challenging the testimony of a ten year

- old victim in front of a jury , had the potential to antagonize the jury and thereby prejudice McLaughlin. T herefore , Trial C ounsel made a reasonable
decision in pursing such the trial strategy. Furthermore, t his C ourt cannot rely on hindsight in determining which strategy would have been superior; it may only determine whether the particular strategy employed was reasonable given the ci rcumstances. Therefore , because there was no unreasonable error by Trial Counsel, the claim of ineffective9 assistance fail s. Additionally, because the first prong of the test for ineffective assistance has not been met, the second, which looks at whether an unprofessional error has prejudiced a defendant, is moot and need not be analyzed. As such , there are no grounds for Postc onviction Relief. Rule 61 Counsel was appointed by the Court to r epresent McLaughlin in the post conviction proceedings and, after a careful review, concluded that there are no meritorious grounds for postconviction relief and that no other grounds for relief exist suff icient for Rule 61 Counsel to ethically advocate for McLaughlin

. A ccordingly, Rule 61 Counsel should be permitted to withdraw as coun sel. NOW, THEREFORE, IT IS HEREBY ORDERED this Ju ly 2 , 2014 , the Motion for Postc onviction Relief by Petitioner Edward McLaughlin is hereby DENIED and the Motion of John Barber, Esquire to Withdraw as Counsel is hereby GRANTED. IT IS SO ORDERED. 

# Andrea L. Rocanelli

_____________________________ Honorable Andrea L. Rocanelli