Burns v. State
2013 Del. LEXIS 492
| Del. | 2013Background
- Robert Burns was tried and convicted of multiple sexual offenses against two children; convictions and a 41-year sentence (35 years suspended) were affirmed on direct appeal.
- Prosecutor offered a plea to two counts of Unlawful Sexual Contact with a State recommendation of probation; Burns rejected the offer after counsel explained terms and risks but made no affirmative recommendation.
- Burns filed a post-conviction ineffective-assistance claim raising multiple alleged counsel errors (plea advice, questioning that suggested silence, waiver of §3507/Smith foundational rules, use of the word “victim,” failure to object to summation), and argued cumulative prejudice.
- The Superior Court (adopting a Commissioner’s report) denied relief; the case was remanded to consider Lafler v. Cooper and relief was again denied.
- The Delaware Supreme Court reviewed the denial for abuse of discretion and applied Strickland and Lafler standards for performance and prejudice in both trial and plea-bargaining contexts.
Issues
| Issue | Burns' Argument | State/Counsel's Argument | Held |
|---|---|---|---|
| Counsel failed to affirmatively recommend accepting plea | Counsel should have urged acceptance of probation offer; rejection caused harsher sentence | Counsel informed Burns fully, explained risks/benefits, voiced case was "winnable"; Burns insisted he would not accept sex-offender registration | No deficient performance; Burns failed Strickland/Lafler prejudice prong |
| Cross-examination implied Burns invoked Fifth Amendment (police couldn’t interview him) | Counsel’s questioning elicited testimony implying Burns invoked right to silence, requiring corrective instruction | Detective only said he attempted to interview Burns; did not reference Fifth Amendment or invocation | No prejudice shown; insufficient to meet Strickland |
| Waiver of Smith/§3507 foundational requirements (use of prior statements) | Waiver allowed multiple State witnesses before declarants testified, undermining confrontation safeguards | Waiver was a tactical decision to expose inconsistencies; State agreed witnesses could be recalled | Strategic choice entitled to deference; not objectively unreasonable or prejudicial |
| Defense counsel (and witnesses) called complainants "victims" | Using the term prejudiced the jury and was improper where commission disputed | Counsel later qualified with "alleged victims"; jury acquitted on several counts related to one complainant, showing lack of prejudice | No prejudice; verdict pattern undermines claim of unfair bias |
| Failure to object to State’s summation (vouching) | Prosecutor implied personal knowledge/guilt; counsel should have objected | Summation drew logical inferences; prosecutor warned attorneys’ statements are not evidence and did not assert superior personal knowledge | No objectionable vouching; counsel’s nonobjection reasonable |
| Cumulative error | Combined errors deprived Burns of a fair trial | Alleged errors were individually nonprejudicial and strategic choices; no plain error shown | No cumulative prejudice; conviction affirmed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Lafler v. Cooper, 566 U.S. 156 (2012) (Strickland applies to plea negotiations; prejudice requires reasonable probability plea would have been accepted and resulted in lesser sentence)
- Griffin v. California, 380 U.S. 609 (1965) (prohibition on comment that penalizes defendant for silence)
- Kirkley v. State, 41 A.3d 372 (Del. 2012) (prosecutorial vouching standard; impermissible to imply personal superior knowledge)
- Jackson v. State, 600 A.2d 21 (Del. 1991) (caution against use of term "victim" where commission of crime is disputed)