• Delaware Superior Court
  • D66384

DELAWARE SUPERIOR COURT

Delaware v. McLaughlin, DeFAX Case No. D66384 (Del. Super. July 2, 2014) Rocanelli, J. (9 pages).

Defense counsel's decision not to aggressively cross-examine 10-year-old rape victim did not support defendant's claim of ineffective assistance, and claim for postconviction relief lacked merit. Defendant's motion for postconviction relief denied; appointed counsel's motion to withdraw granted.

Defendant was arrested, indicted and tried for rape in the second degree of his eight-year-old stepdaughter. The jury's inability to reach a unanimous verdict resulted in a mistrial.

McLaughlin was represented by the same counsel when he was retried. His attorney relied on primarily the same strategy he employed in the first trial. The second trial resulted in a jury finding McLaughlin guilty of four counts of rape in the second degree. He was sentenced to a lengthy prison term. His convictions were affirmed on appeal.

McLaughlin filed a motion for postconviction relief on the grounds of ineffective assistance of counsel. An attorney, John Barber, was appointed to represent McLaughlin. Barber later moved to withdraw from representing 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.

In response, McLaughlin disputed Barber's conclusion there was not sufficient evidence to demonstrate ineffective assistance of counsel. McLaughlin challenged his trial counsel's cross-examination of the alleged victim, a child who was eight years old at the time of the incidents, and 10 years old at time of the trials. McLaughlin had been the victim's legal guardian and acted as her stepfather from the time that custody was taken away from the victim's mother until McLaughlin was charged with raping her.

McLaughlin argued that his trial counsel did not challenge the alleged victim's motive for testifying and therefore "acquiesced" to the state's prosecution of him, resulting in a failure to subject the prosecution's case to a meaningful adversarial testing. The court denied McLaughlin's claim for relief and granted his appointed counsel's motion to withdraw.

It is established that a claim of ineffective assistance requires a showing that the attorney made a professionally unreasonable error and that the error had an effect on the judgment.

Trial counsel made a strategic decision not to directly challenge the 10-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 prejudicing the jury against McLaughlin. The attorney 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 victim. Furthermore, the attorney had reason to believe that such a strategy could be effective because the first trial resulted in a hung jury.

But even assuming trial counsel made a professional error by not more aggressively cross-examining the alleged victim, McLaughlin would still need to show that the error had an effect on the verdict. Given the extremely sympathetic nature of the child victim, and the impact that her testimony had on the jury, as discussed on the record, avoiding aggressive cross-examination was a reasonable strategy.

With respect to the withdrawal motion, the appointed attorney emphasized that the jury's inability to reach a verdict in the first trial was evidence that the cross-examination of the alleged victim was reasonable, given that the substance of the cross-examination was similar in both trials. The court concluded there were no grounds for relief sufficiently for the attorney to ethically advocate for McLaughlin.

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