Swan v. State ( 2021 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
RALPH SWAN, §
§
Defendant Below, § No. 150, 2020
Appellant, §
§
v. § Court Below – Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§
Plaintiff Below, § ID No. 0002004767A
Appellee. §
Submitted: December 2, 2020
Decided: March 1, 2021
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, Justices.
Upon appeal from the Superior Court of Delaware. AFFIRMED
Stamatios Stamoulis, Esquire, STAMOULIS & WEINBLATT, LLC, Wilmington,
Delaware; Attorney for Appellant, Ralph Swan.
John Williams, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Dover, Delaware;
Attorney for Appellee, the State of Delaware.
MONTGOMERY-REEVES, Justice:
The appellant, Ralph Swan, appeals the denial of his most recent motion for
postconviction relief and motion to recuse. For the reasons set forth below, this Court holds
that the Superior Court did not abuse its discretion by denying Swan’s motion for
postconviction relief. Nor did the court err by denying his motion to recuse. Thus, we
AFFIRM the judgment of the Superior Court.
I. BACKGROUND
On the evening of November 4, 1996, two masked and camouflaged men crashed
through the glass patio door of Kenneth Warren’s home.1 Warren was fatally shot in front of
his wife and child during the subsequent struggle. Tina Warren, Kenneth’s wife, observed
that one assailant appeared to have been shot in the shoulder.2 The investigation went cold
until Bridget Phillips, ex-wife of co-defendant Adam Norcross, contacted Delaware State
Police in 1999.3 She explained that Norcross and Swan had planned to rob a house but found
it occupied.4 Phillips added that the victim fired a shot and died because he tried to play
hero.5
1
App. to Opening Br. 4940 (hereinafter “A . . .”).
2
A4941.
3
A4944.
4
Id.
5
Id.
1
Delaware State Police arrested Norcross on February 9, 2000.6 The next day,
Norcross admitted that he was present during the incident.7 On February 25, 2000, the
Delaware State Police arrested Swan.8 Swan and Norcross9 were indicted on April 3, 2000,
on (i) three counts of first degree murder (one count of intentional and two counts of felony
murder), (ii) one count of first degree robbery, (iii) one count of first degree burglary, (iv) one
count of second degree conspiracy, and (v) multiple counts of possession of a deadly weapon
during the commission of a felony.10 Swan was ultimately convicted of all charges on June
30, 2001.11 The jury recommended that the aggravating circumstances outweighed the
mitigating circumstances, and Swan was sentenced to death.12 On April 9, 2003, this Court
affirmed Swan’s conviction and sentence.13 The United States Supreme Court denied
certiorari on October 6, 2003.14
Swan obtained new counsel and filed his first motion for postconviction relief under
Superior Court Criminal Rule 61 on January 3, 2006.15 Swan also concurrently filed his
second motion for a new trial, which was ultimately denied.16 While his Rule 61 motion
6
Id.
7
A4944-45.
8
A4945.
9
Defendant Norcross was tried separately. See Norcross v. State, 816 A.2d 757 (Del. 2003).
10
A62-68.
11
A2989-91.
12
A3416-48.
13
See Swan v. State, 820 A.2d 342 (Del. 2003).
14
See Swan v. Delaware, 540 U.S. 896 (2003).
15
A16; A3459-76.
16
Opening Br. Ex. A, at 3.
2
was still pending in the Superior Court, Swan appealed the denial of his second motion for a
new trial.17 Swan argued that potential DNA evidence could affect the disposition of the
motion for a new trial. This Court remanded the case, requiring the Superior Court to
consider the DNA evidence in connection with the then-pending motion for postconviction
relief.18
Swan filed an amended Rule 61 motion for postconviction relief on December 14,
2006.19 A second amended motion was docketed on October 2, 2007.20 The Superior Court
conducted a five-day evidentiary hearing in November 200721 and July 2008,22 and
ultimately denied Swan’s motion for postconviction relief and the second motion for a new
trial.23
In April 2010, Swan appealed the Superior Court’s denial of the motion for
postconviction relief and the second motion for a new trial.24 This Court remanded the case,
again, to the Superior Court for further determinations.25 The Superior Court resolved the
issues raised in the second remand.26 Thereafter, this Court affirmed the Superior Court’s
17
Id.18
See Swan v. State, 2007 WL 1138474 (Del. Apr. 17, 2007).
19
A22; A3596-3722.
20
Opening Br. Ex. A, at 3; A24.
21
A24.
22
A26.
23
A4890-915.
24
A4916.
25
A4919-21.
26
A4923; Swan v. State, 2011 WL 976788 (Del. Super. Ct. Mar. 16, 2011).
3
denial of Swan’s motion for postconviction relief and a new trial.27 The United States
Supreme Court denied certiorari.28
On September 27, 2011, Swan filed a petition for writ of habeas corpus in the United
States District Court for the District of Delaware, which he amended on January 24, 2012.29
The State argued that seven of the fifteen claims raised in the habeas petition had never been
raised in State court.30 Swan petitioned the federal court to stay the habeas proceedings to
allow him to return to state courts to exhaust all unexhausted claims.31 The District Court
granted the stay.32 Swan filed another Rule 61 motion for postconviction relief in the
Superior Court on October 21, 2013.33
On February 21, 2017, following this Court’s 2016 death penalty and retroactivity
decisions in Rauf v. State34 and Powell v. State,35 respectively, the Superior Court resentenced
Swan to “life without the possibility of parole or probation or any other reduction of
sentence.”36 Swan filed an “Amendment to Corrected Motion for Postconviction Relief” on
March 28, 2017.37 The Superior Court conducted a hearing on the applicability of the
27
See Swan v. State, 28 A.3d 362 (Del. 2011).
28
Swan v. Delaware, 566 U.S. 912 (2012).
29
Opening Br. Ex. A, at 4.
30
Id.; see Swan v. Coupe, 967 F. Supp. 2d 1008, 1011(D. Del. 2013).
31
Swan, 967 F. Supp. 2d at 1010.
32
Id. at 1013.
33
A29.
34
145 A.3d 430 (Del. 2016).
35
153 A.3d 69 (Del. 2016).
36
Opening Br. Ex. A, at 5.
37
A42.
4
procedural bars of Rule 61(i)(1)-(4) to Swan’s pending postconviction relief motion on May
23, 2017. After consideration, the Superior Court identified six claims that “for the moment
[are] not dismissed on procedural grounds.”38
On March 14, 2019, Judge Graves was assigned to handle Swan’s pending motions.
On April 4, 2019, the parties attended an office conference to address the status of the motion
and the schedule going forward.39 The defense filed a Motion of Recusal on June 19, 2019,
which the court denied on June 20, 2019.40 The court held evidentiary hearings on June 20,
2019, June 26, 2019, October 8, 2019, and December 18, 2019.41 The parties filed final
memoranda on February 3, 2020.42 On February 21, 2020, the Superior Court denied
Swan’s motion for postconviction relief.
II. ANALYSIS
In this appeal, Swan challenges two decisions of the Superior Court. First, he argues
that the Superior Court erred, for many reasons, in denying his Rule 61 motion for
postconviction relief. Second, Swan argues that the Superior Court erred by denying the
motion to recuse.
38
A44; A8253-54.
39
A47-48.
40
A54.
41
A54-55; A60.
42
A61.
5
This Court reviews the Superior Court’s denial of a motion for post-conviction relief
for an abuse of discretion.43 We review “legal or constitutional questions, including
ineffective-assistance-of-counsel claims, de novo.”44 We review a trial judge’s recusal
decision for an abuse of discretion.45
A. The Superior Court Did Not Err in Denying Swan’s Rule 61 Motion
Swan first contends that the Superior Court erred in denying his Rule 61 motion for
postconviction relief. When the 2013 postconviction motion was filed, the “old” version of
Rule 61 was in effect and therefore is applicable to this appeal.46 The 2013 version of Rule
61(i), which governs procedural bars to a defendant’s motion for postconviction relief, states
as follows:
Bars to relief. (l) Time limitation. A motion for
postconviction relief may not be filed more than one year after
the judgment of conviction is final or, if it asserts a retroactively
applicable right that is newly recognized after the judgment of
conviction is final, more than one year after the right is first
recognized by the Supreme Court of Delaware or by the United
States Supreme Court.
(2) Repetitive motion. Any ground for relief that was not
asserted in a prior postconviction proceeding, as required by
subdivision (b)(2) of this rule, is thereafter barred, unless
consideration of the claim is warranted in the interest of justice.
(3) Procedural default. Any ground for relief that was not
asserted in the proceedings leading to the judgment of
43
Richardson v. State, 3 A.3d 233, 237 (Del. 2010) (citing Gattis v. State, 955 A.2d 1276, 1280-81
(Del. 2008)).
44
Green v. State, 238 A.3d 160, 173 (Del. 2020) (citing Ploof v. State, 75 A.3d 811, 820 (Del. 2013));
Starling v. State, 130 A.3d 316, 325 (Del. 2015).
45
Butler v. State, 95 A.3d 21, 31 (Del. 2014) (citing Los v. Los, 595 A.2d 381, 385 (Del.1991)).
46
Opening Br. Ex. A, at 7.
6
conviction, as required by the rules of this court, is thereafter
barred, unless the movant shows:
(A) Cause for relief from the procedural default; and
(B) Prejudice from violation of the movant’s rights.
(4) Former adjudication. Any ground for relief that was
formerly adjudicated, whether in the proceedings leading to the
judgment of conviction, in an appeal, in a postconviction
proceeding, or in a federal habeas corpus proceeding, is
thereafter barred, unless reconsideration of the claim is
warranted in the interest of justice.
(5) Bars inapplicable. The bars to relief in paragraphs (1),
(2), and (3) of this subdivision shall not apply to a claim that the
court lacked jurisdiction or to a colorable claim that there was a
miscarriage of justice because of a constitutional violation that
undermined the fundamental legality, reliability, integrity or
fairness of the proceedings leading to the judgment of
conviction.47
In Younger v. State, this Court noted that the procedural requirements of Rule 61 must
be applied before consideration of the merits of the underlying claims for postconviction
relief.48 All of the procedural bars are in play; thus, this appeal focuses on the exceptions to
the bars.
Swan begins by arguing that Rule 61(i)(1) should not apply because the State engaged
in needless litigation in the District Court, which contributed to the delay in addressing the
unexhausted claims in Delaware. Swan first raised this argument in a January 10, 2020
filing. Swan did not explain why he waited until the last possible minute—at the end of
years-long proceedings, after five days of evidentiary hearings and multiple rounds of
47
Id. at 7-8.
48
580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255 (1989)).
7
filings—to address this argument. As the Superior Court noted, at that late time the State did
not have the opportunity to properly respond. Further, Swan offers no authority to support
the expansion of the equitable tolling doctrine in the manner that he suggests. Thus, we hold
that Swan waived this argument.
Turning to the exceptions outlined in the text of the rules, Rule 61(i)(2) and Rule
61(i)(4) contain an “interest of justice” exception. The interest of justice exception applies
when (i) “the previous ruling was clearly in error or there has been an important change in
circumstances, in particular, the factual basis for issues previously posed,” or (ii) there is an
“equitable concern of preventing injustice.”49
Rule 61(i)(5) provides an exception to the bars of Rule 61(i)(1), (2), and (3) for a
colorable claim that there was a miscarriage of justice because of a constitutional violation
that undermined the fundamental legality, reliability, integrity, or fairness of the proceedings
that lead to the conviction. The Younger court utilized a conservative approach in
interpreting this “fundamental fairness” exception, noting that it is “a narrow one and has
only been applied in limited circumstances . . . .”50 The defendant bears the burden of
proving that he or she was deprived of a substantial constitutional right.51
49
Weedon v. State, 750 A.2d 521, 527-28 (Del. 2000) (footnotes and citations omitted); see also
Zebroski v. State, 12 A.3d 1115 (Del. 2010).
50
Younger, 580 A.2d at 554; see Bailey v. State, 588 A.3d 1121, 1130 (Del. 1991).
51
Younger, 580 A.2d at 555; see Webster v. State, 604 A.2d 1364, 1366 (Del. 1992).
8
The majority of Swan’s claims for postconviction relief involve allegations that initial
postconviction counsel was ineffective for failing to raise claims based on Swan’s trial
counsel’s allegedly deficient performance. A meritorious ineffective assistance of counsel
claim that demonstrates a constitutional violation may be considered an exception under
Rule 61(i)(5). Conclusory claims of ineffective assistance of counsel, however, do not
constitute a miscarriage of justice under Rule 61(i)(5).52 Substantive claims are necessary
for the Court to consider overriding a bar based on ineffective assistance of counsel.53
In Guy v. State, this Court examined the applicability of old Rule 61’s procedural
bars to a subsequent motion for postconviction relief based on allegations of ineffective
assistance of counsel.54 This Court held that Rule 61(i)(2) was inapplicable to claims that
initial postconviction counsel was ineffective for not raising claims that trial counsel were
ineffective.
This rule recognizes, as the United States Supreme Court
recently noted, that in a jurisdiction like Delaware, where
ineffective assistance of trial counsel may not be raised on direct
appeal, the first postconviction “proceeding is in many ways the
equivalent of a prisoner’s direct appeal as to the ineffective-
assistance claim.” Accordingly, when a defendant subsequently
claims that his postconviction counsel was ineffective in
pursuing his ineffective assistance of trial counsel claims, we
hold that those claims must be filed within one year following
the conclusion of the defendant’s first postconviction
proceeding.55
52
Younger, 580 A.2d at 555.
53
Id.54
82 A.3d 710 (Del. 2013).
55
Id. at 715-16.
9
Thus, under this Court’s ruling in Guy, old Rule 61 allows a subsequent
postconviction motion if the claims are based on the failure of the initial postconviction
counsel to raise ineffective assistance of trial counsel claims, as is the case here. When
considering claims that initial postconviction counsel was ineffective for not raising claims
that trial counsel was ineffective, Rule 61(i)(1) still applies. Guy provides that “the one-year
time limitation on a claim of ineffective assistance of postconviction counsel shall begin to
run when the defendant’s appeal to this Court from the Superior Court’s denial of his first
motion for postconviction relief is concluded.” 56 If no appeal was taken, the one-year time
limitation begins to run “within 30 days following the Superior Court’s denial of the
defendant’s first motion for postconviction relief.”57
When examining ineffective assistance of counsel claims, we apply the well-worn
standards announced by the United States Supreme Court in Strickland v. Washington.58
Under Strickland, Swan carries the burden of establishing (i) that counsel’s representation
fell below an objective standard of reasonableness and (ii) that the deficiencies in counsel’s
representation caused him substantial prejudice.59
56
Id.57
Id.58
466 U.S. 668 (1984).
59
Green, 238 A.3d at 174 (citing Strickland, 466 U.S. 687-88).
10
The first prong of “the Strickland test—frequently referred to as the performance
prong—places a heavy burden” on the appellant.60 The appellant must overcome a “strong
presumption that counsel’s conduct falls within a wide range of reasonable professional
assistance.”61 When reviewing counsel’s performance, the court engages in an objective
inquiry into “not what is possible or ‘what is prudent or appropriate, but only what is
constitutionally compelled.’”62 “The burden of persuasion is on the appellant to show that
his counsel’s performance was objectively unreasonable, i.e., that no reasonable lawyer
would have conducted the defense as the lawyer did.”63 “If an attorney makes a strategic
choice after thorough investigation of law and facts relevant to plausible options, that
decision is virtually unchallengeable . . . .”64 The attorney’s conduct viewed as a whole is
the key analysis under Strickland.65
The second prong of the Strickland test examines whether the defendant has been
prejudiced by counsel’s conduct.
To demonstrate prejudice caused by counsel’s ineffectiveness, a
defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
means a probability sufficient to undermine confidence in the
outcome, a standard lower than more likely than not. The
60
Id.61
Id.62
Burger v. Kemp, 483 U.S. 776, 796 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665,
n.38 (1984)).
63
Green, 238 A.3d at 174.
64
Hoskins v. State, 102 A.3d 724, 730 (Del. 2014).
65
Green, 238 A.3d at 174 (citing Atkins v. Zenk, 667 F.3d 939, 945 (7th Cir. 2012)).
11
likelihood of a different result must be substantial not just
conceivable.66
Swan also asserts numerous claims that the State failed to produce evidence in
violation of requirements established by the United States Supreme Court in Brady v.
Maryland.67 In the context of a Rule 61 motion for postconviction relief, this Court considers
a meritorious Brady claim under Rule 61(i)(5)’s narrow “miscarriage of justice” exception.68
This Court recently set forth the analysis for evaluating a Brady claim:
Under Brady . . . , the State’s failure to disclose exculpatory and
impeachment evidence material to the case violates a
defendant’s due process rights. The reviewing court may also
consider any adverse effect from nondisclosure on the
preparation or presentation of the defendant’s case. There are
three components of a Brady violation: (1) evidence exists that
is favorable to the accused, because it is either exculpatory or
impeaching; (2) that evidence is suppressed by the State; and (3)
its suppression prejudices the defendant. In order for the State to
discharge its responsibility under Brady, the prosecutor must
disclose all relevant information obtained by the police or others
in the Attorney General’s Office to the defense. That entails a
duty on the part of the individual prosecutor to learn of any
favorable evidence known to the others acting on the
government’s behalf in the case, including the police.69
Whether a Brady violation occurred often hinges on whether there is prejudice.70
“Whether suppression of the evidence caused prejudice to the defendant depends on the
66
Id. (quoting Starling v. State, 130 A.3d 316, 325 (Del. 2015)).
67
373 U.S. 83 (1963).
68
See Wright v. State, 91 A.3d at 986-87 (Del. 2014); Jackson v. State, 770 A.2d 506, 515-16 (Del.
2001).
69
Starling, 130 A.3d at 332-33 (citing Wright, 91 A.3d at 987-88 (quotations and citations omitted)).
70
Atkinson v. State, 778 A.2d 1058, 1063 (Del.2001).
12
materiality of the evidence.”71 A defendant must show that the suppressed evidence created
“a reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.”72 The suppression of evidence must “undermine
[] confidence in the outcome of the trial.”73 This Court enumerated six factors to consider
when determining the materiality of the suppressed evidence: (i) favorability; (ii)
admissibility; (iii) probative value; (iv) cumulative nature; (v) weight of other evidence; and
(vi) deference to the trial judge.74
Swan’s “Arguments” section of his brief begins with a summary of the “Merits of the
Argument.”75 It states, “Swan’s conviction and sentencing was unconstitutional due to
counsel ineffectiveness, prosecutorial misconduct, due process errors and actual innocence.
These errors establish ‘cause’ to overcome the procedural bars, and warrant conviction
reversal.”76 His brief then includes a detailed “Applicable Law” subsection. In that
subsection, Swan discusses the procedural bars of Rule 61 and the various exceptions to the
procedural bars. He also discusses the applicable law for the consideration of claims of
ineffective assistance of counsel, prosecutorial misconduct, and various types of due process
violations.77 The next subsection of the analysis section is called “Meritorious Claims.” In
71
Gray v. State, 126 A.3d 631, 2015 WL 5926151, *3 (Del. 2015) (TABLE).
72
Starling, 130 A.3d at 333.
73
Id.
74
Stokes v. State, 402 A.2d 376, 380 (Del. 1979).
75
Opening Br. 4.
76
Id. at 4-5.
77
Id. at 5-13.
13
that subsection, Swan argues that he is entitled to postconviction relief for 32 reasons (not
separately counting subclaims). He specifically discusses each of his 32 claims for
postconviction relief; however, Swan fails to mention Rule 61 or any of its exceptions in any
of his 32 claims for postconviction relief. Instead, he discusses the merits of the underlying
challenge in each section.78 Thus, in all 32 sections that follow, we make our best effort to
determine which exception to the procedural bars Swan is attempting to rely on.
1. Jury Foreperson with Incarcerated Brother, a Prior Record, and
a Familial Relationship with a Murder Victim
Swan argues that he “was denied his due process to a fair and impartial jury because
the trial court failed to inquire into the bias of the jury foreperson,” and “prior counsel was
ineffective under Strickland for failing to raise this issue.”79 The juror reported that a family
member was a homicide victim three to four years before Swan’s trial and that her brother
was incarcerated for a DUI charge at the time of Swan’s trial, with three months remaining
on his sentence. She did not report that her brother had additional convictions; nor did she
disclose her own ten-year-old misdemeanor conviction for offensive touching.80
Trial counsel requested follow-up questions regarding the juror’s incarcerated
brother.81 The trial court asked three follow-up questions about the juror’s brother.82 Trial
78
Id. at 14-73.
79
Id. at 14.
80
A598-606.
81
A603-04.
82
A606.
14
counsel also requested follow-up questions regarding the juror’s family member’s murder,
which the court denied.83 During voir dire, the juror reported that neither the murder nor her
brother’s incarceration would affect her ability to be completely fair and impartial in Swan’s
case. Trial counsel did not challenge the juror for cause or exercise a peremptory strike. In
the first motion for postconviction relief, appellate counsel raised issues regarding the jury
selection process but not issues about the jury foreperson.84
This claim attacks trial counsel and initial postconviction counsel for not raising these
issues.85 But this claim is procedurally barred as untimely under Rule 61(i)(1). This Court
affirmed the denial of Swan’s first motion for postconviction relief in September 2011.86
Thus, under Guy, this claim must have been brought in September 2012 to be timely. Swan’s
second postconviction motion was not filed until October 2013.87
Presumably, Swan argues that the miscarriage of justice exception of Rule 61(i)(5)
applies because his trial counsel’s ineffectiveness for failing to adequately investigate and
discover potential juror bias amounted to a constitutional violation that undermined the
fundamental legality, reliability, integrity or fairness of the trial. But Swan fails to show that
his counsel’s actions were objectively unreasonable or prejudicial under Strickland.
83
A603-04.
84
A3657-60.
85
In the vast majority of Swan’s ineffective assistance of counsel claims, he fails to mention initial
postconviction counsel. Nonetheless, we assume that he also necessarily argues that initial
postconviction counsel was ineffective for failing to raise any claims that were not raised.
86
A4938.
87
A5358.
15
First, although the impartiality of jurors is essential to the proper functioning of a jury
and must be protected,88 “the trial judge is in a unique position to evaluate jurors’ assurances
of impartiality.”89 Nothing supports Swan’s vague assertion that the juror’s step-niece’s
murder three to four years before Swan’s trial “rendered [the juror] subject to the Office of
the Attorney General.”90 Swan cites Knox v. State91 as support for his contention. However,
this case is distinguishable from Knox because the potential juror in Knox was a robbery
victim whose interests aligned with the attorney general’s office in a pending criminal trial.
Further, the trial judge in Knox did not conduct a voir dire of the juror and was not able to
personally assess any assurances of impartiality.92 Here, the juror was not the victim of a
crime that was currently being prosecuted, and the court assessed her reliability during voir
dire.
Second, “for the failure of a juror to answer accurately a question on voir dire to
constitute reversible error, a party must . . . demonstrate that a juror failed to honestly answer
a material question on voir dire” and “show that a correct response would have provided a
valid basis for a challenge for cause.”93 Although the juror incorrectly answered two material
voir dire questions, correct responses would not have provided a valid basis for a challenge
88
Schwan v. State, 65 A.3d 582, 587-88 (Del. 2013).
89
Hughes v. State, 490 A.2d 1034, 1041 (Del. 1985).
90
Opening Br. 14-15.
91
29 A.3d 217 (Del. 2011).
92
Knox, 29 A.3d at 221-22.
93
Banther v. State, 823 A.2d 467, 484 (Del. 2003) (quoting McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 555-56 (1984)).
16
for cause. The juror “would not be disqualified from jury service simply because she has
relatives with a criminal record.”94 And a misdemeanor conviction would not have resulted
in disqualification under 10 Del. C. § 4509(b)(6). Further, this Court has “favorably cited
the proposition that a juror’s inaccurate response to a voir dire question based on a factual
inaccuracy rather than dishonesty did not warrant a new trial.”95 The juror’s testimony
during the 2019 evidentiary hearing revealed her genuine confusion on the meaning of the
question concerning her prior arrest and her belief that she was truthful about her brother.96
Thus, we do not believe that trial counsel’s failure to take further action was
objectively unreasonable or that Swan suffered sufficient prejudice. Further, Swan does not
sufficiently show any other colorable claim of a constitutional violation that undermined the
fundamental fairness of the trial. As such, Swan’s claim is time barred under Rule 61(i)(1),
and the exception in Rule 61(i)(5) does not save this claim.
2. Proctor Note
Swan next contends that trial counsel was ineffective for failing to object to the
admission of certain evidence. On February 16, 2000, the morning of the preliminary
hearing, Swan and Norcross were in separate holding cells in the Kent County Courthouse.97
Richard Edwards, who was being held in lockup with Swan, testified that he witnessed
94
Smallwood v. State, 2002 WL 31883015, at *2 (Del. Dec. 26, 2002).
95
Id. at *1 (citing Banther, 783 A.2d at 1291).
96
A8913-18.
97
A4945.
17
Ronald Proctor, another inmate, drafting a letter on Swan’s behalf.98 Edwards stated that he
observed Swan talking to Proctor as Proctor was writing the letter.99 Edwards then testified
that Proctor and Swan asked him to carry the note to Norcross, who was housed around the
corner.100 Edwards successfully delivered the letter to Norcross, but correctional officers
immediately confiscated the letter.101 The note, which was admitted into evidence, contained
the phone number of Margaret Tucker, Swan’s grandmother, and it instructed Norcross to
not trust his lawyer, to keep quiet, and if he talked, to say that he lied about any involvement
in Warren’s death.102 Swan contends that this note improperly established a connection
between Norcross, who had admitted to the murder, and Swan.
Swan argues that trial counsel was ineffective for failing to object to the entry of the
note from a non-testifying witness as hearsay and as a violation of the Confrontation Clause.
Swan also argues that trial counsel was ineffective for failing to call Proctor as a witness to
refute the State’s theory.103 Initial postconviction counsel raised this claim in connection
with the first motion for postconviction relief, and the Superior Court rejected it. Swan does
not address counsel’s failure to raise this issue in the appeal related to the initial motion for
postconviction relief. Instead he seems to argue that the claim is not barred under any of the
98
A2081-82.
99
A2082.
100
Id.
101
A2083-84.
102
A2075; A2137.
103
Opening Br. 17.
18
bars of Rule 61(i) because either the interest of justice exception or the miscarriage of justice
exception applies.
Swan seems to argue that bars under Rule 61(i)(2) and Rule 61(i)(4) do not apply
because he proffered new evidence under the interest of justice exception.104 Specifically, in
2015, Proctor executed an affidavit in which he stated that the letter was his idea and
motivated by his dislike of Norcross’s attorney.105 But this argument fails because the 2015
affidavit executed by Proctor is very similar to his original 2001 affidavit, which articulated
the same points.106 Thus, Swan fails to identify a change in circumstances that would support
the interest of justice exception.
Swan also seems to argue that the miscarriage of justice exception of Rule 61(i)(5)
applies because his trial counsel was constitutionally ineffective for not objecting to the entry
of the Proctor note as hearsay and violative of the Confrontation Clause. Presumably, Swan
also argues that his initial postconviction counsel was ineffective for failing to raise the
argument on appeal of the initial motion for postconviction relief. As the Superior Court
noted, “[d]efense counsel strenuously objected to admission of the note on grounds of
relevance and was overruled by this Court.”107 But, “[e]ven if counsel’s conduct had been
professionally unreasonable, [Swan] cannot show prejudice, that is, he cannot show a
104
Opening Br. 18.
105
A6669-72.
106
Compare A6669-72 with A3822-28.
107
A4908-09.
19
reasonable probability that the outcome of the trial would have been different without the
admission of the note or, in the alternative, with the testimony of Proctor.”108 Swan “argues
that the note demonstrates a connection between Norcross and Swan and that the jury could
have relied on this to find Swan guilty[,]” but “[t]he State’s case included other more
convincing evidence of the connection between the two men, such as the fact that they were
acknowledged friends, lived and worked together for periods of time, moved to Canada
together and had mutual friends.” 109 Thus, we agree with the Superior Court’s conclusion
that this argument does not meet the Strickland standard.110
Swan’s argument that trial counsel was ineffective for failing to introduce Proctor as
a witness to refute the State’s theory also fails. In their affidavit, trial counsel admitted that
they “chose not to call Ronald Proctor to testify at trial.”111 “After numerous meetings with
Proctor, trial counsel concluded that Proctor would be an unreliable witness . . . [and] could
potentially prejudice defendant.”112 “If an attorney makes a strategic choice ‘after thorough
investigation of law and facts relevant to plausible options,’ that decision is ‘virtually
unchallengeable’ . . .”113 Thus, the decision not to call Proctor as a witness also fails to meet
the first prong of the Strickland standard.
108
Id.
109
Id.
110
Id.
111
A4768.
112
Id.
113
Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (citing Ploof, 75 A.3d at 852).
20
In sum, Swan’s challenges based on the Proctor note are barred under Rule 61, and
his changed circumstances and ineffective assistance of counsel arguments do not save these
challenges.
3. Norcross’s Criminal History and Mental Health
Norcross was not proffered as a witness at Swan’s 2001 trial, but several of his
statements were admitted into evidence over hearsay objections. Swan faults trial counsel
for not discovering and using evidence of Norcross’s criminal history and mental health
background to impeach his hearsay statements that were admitted into evidence.
This claim is untimely under Rule 61(i)(1), and Swan’s ineffective assistance of
counsel arguments do not constitute a miscarriage of justice under Rule 61(i)(5)
because trial counsel’s actions were not objectively unreasonable or prejudicial
under Strickland. First, the jury knew Norcross was a criminal. The jury was aware that
Norcross (i) was a burglar and a thief, (ii) had solicited a co-worker to join him and Swan to
rob a drug dealer, (iii) was caught committing fraud at his job by changing the time clock,
and (iv) gave changing stories about his role in Warren’s death. Any additional information
would have been cumulative at best.
Second, Swan’s arguments that competent counsel would have introduced evidence
of Norcross’s mental health background to impeach his statements are not convincing.
Although Swan does not point to specific medical evidence in his brief, we assume he is
referring to alleged mental health conditions mentioned in the 2013 motion for
21
postconviction relief.114 But this argument falls short. The Superior Court correctly
determined that this evidence was inadmissible lay opinion testimony.115 Therefore, Swan’s
challenges are barred by Rule 61(i)(1), and miscarriage of justice exception does not save
these challenges.
4. Cross-Examination of Detective to whom Norcross Confessed
Swan claims that trial counsel was ineffective for failing to sufficiently cross-examine
the detective who obtained the confession from Norcross after falsely telling Norcross that
Swan implicated Norcross. Swan further faults initial postconviction counsel for failing to
assert this claim.
This claim is barred as untimely under Rule 61(i)(1). Presumably, Swan
argues that the exception of Rule 61(i)(5) applies because his counsel was so
constitutionally ineffective that there was a miscarriage of justice that undermined
the fundamental fairness of his trial. But trial counsel’s actions, and initial postconviction
counsel’s failure to challenge those actions, were not objectively unreasonable under the first
prong of Strickland.
Generally, the voluntariness of a statement is analyzed by a “totality of
circumstances” test.116 Nothing in the record supports an argument that the officers coerced
114
A5386.
115
A37.
116
Roth v. State, 788 A.2d 101, 107-08 (Del. 2001) (quoting Martin v. State, 433 A.2d 1025, 1032
(Del. 1981)); see State v. Rooks, 401 A.2d 943, 948–49 (Del. 1979).
22
Norcross into implicating Swan.117 Swan only points to the officer’s lie to Norcross that
Swan had implicated Norcross as the coercive act. “We do not find [the detective’s] untruth
. . . to constitute sufficient trickery to overcome [Norcross’s] will.”118 The lie “was not
sufficient to prevent [Norcross] from making a rational choice of his own free will.”119
Further, this challenge does nothing to rebut the fact that Norcross had already told three
other people that he and Swan were involved in the crime.120 Based on the record before us,
we are not convinced by Swan’s argument. Trial counsel’s cross examination of the detective
was not objectively unreasonable, and initial postconviction counsel was not ineffective for
failing to challenge trial counsel’s actions. Thus, the claim is barred by Rule 61(i)(1), and
Swan has not identified a miscarriage of justice that would save this claim.
5. Norcross Recantation Evidence
Swan argues that trial and initial postconviction counsel were ineffective for failing
to proffer or properly argue that Norcross, allegedly twice, recanted his four statements all
implicating Swan in the Warren murder. Specifically, in 2000, the day after his arrest,
Norcross told a correctional officer that he killed a person who was going to kill three
117
Opening Br. Ex. A, at 39.
118
Bayard v. State, 518 A.2d 682, 691 (Del. 1986).
119
Id.120
A1725-34 (testimony of Adam Howell); A1798-800 (testimony of Gina Ruberto); A1898-906
(testimony of Bridget Phillips).
23
people.121 Norcross further revealed he had not been convicted of that crime.122 Swan
contends that trial counsel erred by not raising the 2000 statement.
In 2005, Norcross sent a letter recanting his statements implicating Swan.123 At the
2006 hearing on Swan’s motion for a new trial, Norcross testified concerning this
recantation. Norcross testified that a man named Wayne was his actual accomplice in the
Warren murder.124 The Superior Court ultimately found this recantation lacked credibility,
as Norcross did not give any corroborating details about Wayne that could verify his story.125
Norcross also denied implicating Swan, which contradicted the recorded statement to the
Delaware State Police.126 Swan contends that initial postconviction counsel was ineffective
for not raising either the 2000 statement, the 2005 letter, or arguing that trial counsel was
ineffective.
These claims are barred by Rule 61(i)(1) as untimely. Presumably, Swan argues that
the exception of Rule 61(i)(5) applies because his trial and postconviction counsel
were so constitutionally ineffective that there was a miscarriage of justice that
undermined the fundamental fairness of his trial. But Swan failed to prove that he was
prejudiced under the second prong of Strickland by trial counsel’s or postconviction
121
A6921.
122
Id.123
A3478.
124
A3479.
125
A3478-502.
126
Opening Br. Ex. A, at 41.
24
counsel’s actions. The 2000 statement he contends should have been introduced is, at best,
vague. But, even if the 2000 statements had been introduced, there remained Norcross’s out
of court statements to Matthew Howell,127 Gina Ruberto,128 Bridget Phillips,129 and Sergeant
Charles Brown,130 all of which implicated Swan.131 The 2005 statements and 2006
testimony, likewise, were extremely vague. Further, Norcross offered no details about
Wayne. Thus, we find no error in the Superior Court’s holding that this claim is barred as
untimely, and Swan has failed to identify a miscarriage of justice that would save this claim.
6. Sergeant Evans Lay Opinion Testimony
Swan argues that trial counsel was ineffective for failing to object to the admission of
Sergeant John Evans’s lay opinion testimony regarding the location of Tina Warren’s
purse.132 Evans testified at trial concerning the purse he found at Eastern Shore Concrete.133
He opined that the stolen purse had been thrown from inside the fence of Eastern Shore
Concrete because he found a Bell Atlantic calling card inside the fence that belonged to Tina
Warren while he found her purse, credit cards, and checkbook outside the fence.134
127
A1722-66.
128
A1797-824.
129
A1890-948.
130
A1967-69; A1979; A1987-2006.
131
A1964-90.
132
Opening Br. 29.
133
A1334-39.
134
A1338; A4941.
25
This claim is untimely under Rule 61(i)(1), and Swan’s ineffective assistance of
counsel arguments do not constitute a miscarriage of justice under Rule 61(i)(5).
First, counsel objected to this testimony, and the objection was overruled.135 Second,
the officer’s conclusion is a commonsense conclusion, rather than an impermissible
lay opinion. Third, another employee of the plant testified that Norcross told him
that he threw the purse into the woods.136 Thus, Swan failed to show a miscarriage
of justice through an ineffective assistance of counsel claim because counsel’s
actions were not objectively unreasonable, and Swan suffered no prejudice due to
counsel’s actions. As a result, the Superior Court did not err in determining that
this claim is procedurally barred under Rule 61(i)(1).
7. The Superior Court’s Instructions on Jury Notes
On June 6, 2001, the Superior Court received three notes with questions from the jury.
Two asked about ballistics; one asked about the layout of the Warren home.137 At an office
conference, the Superior Court read the notes to counsel and indicated he would not answer
these questions.138 The court then addressed the jury as follows:
I have read those questions to the attorneys in open court. They
are aware of what those questions are and it will be up to counsel
to answer them, if they can, or provide explanations for why
they cannot answer them or do nothing at all. But that’s the
135
A1336-38.
136
A1730.
137
A1127-28.
138
A1129.
26
situation. Counsel is aware of it and it’s up to counsel to act on
them.139
Swan contends this instruction erroneously shifted the burden onto Swan and that trial
counsel was ineffective for failing to object. Presumably, Swan also argues that initial
postconviction counsel was ineffective for failing to raise this claim in the first motion.
This claim is procedurally barred under Rule 61(i)(1) as untimely, and Rule 61(i)(5)
does not provide an exception because Swan does not assert a colorable claim that there was
a miscarriage of justice. The Superior Court’s instructions merely restated the fact that
counsel, for both the State and defense, would have to answer those questions. The court
said nothing that altered its instruction from the previous day that the defendant had no
burden to prove his innocence. Thus, counsel’s failure to object was not objectively
unreasonable or prejudicial, and there was no miscarriage of justice that undermined the
fundamental fairness of the trial. As such, this claim is barred under Rule 61(i)(1) as
untimely.
8. Testimony of the Medical Expert
Dr. Judith Tobin, the autopsy physician, testified that Kenneth Warren was shot four
times and died from a shot to the head.140 Near the conclusion of her testimony, she
summarized her statements as follows:
So I felt that most likely number 1 and 2 came in rapid
succession, because the wounds were close together and they
139
A1133.
140
A1139-1145.
27
were parallel. And I would say that he was in an upright
position, because it come [sic] from the side like that. He could
not have been lying down or anything like that, unless a shooter
was lying down on the floor.
Now, number 3 was fairly close because, as I told you,
because of the tattooing, and number 4 was on the top of the
head. So I felt that the victim was down when he sustained that
wound, because the shooter couldn’t have been up above him.
And it went down and its path was down in the body.
So, subsequently, to summarize, I feel that 1 and 2 came
first. 1 probably first before 2. And that number 3 probably was
next, and number 4 was last.141
Swan contends that trial counsel was ineffective for failing to object to Tobin’s
opinion on the trajectory of the bullets, the sequence of the wounds, and the location of the
decedent’s body for each shot. Swan also faults trial counsel for not proffering a witness to
refute Tobin’s testimony. Presumably, initial postconviction counsel was ineffective for
failing to raise these claims in the initial motion.
This claim is barred as untimely under Rule 61(i)(1), and Swan’s ineffective
assistance of counsel arguments do not constitute a miscarriage of justice under Rule
61(i)(5). Swan’s counsel’s failure to object to Tobin’s testimony does not implicate a
miscarriage of justice because the bullet trajectories were not a crucial issue. The importance
of Tobin’s testimony was to explain that Warren was shot four times with two different
caliber bullets and to explain the cause of death. Because no prejudice resulted from the
allegedly objectionable testimony, counsel was not ineffective under Strickland, and Swan
141
A1159.
28
has not identified a miscarriage of justice that undermined the fundamental fairness of the
trial. Thus, the claim is barred as untimely under Rule 61(i)(1).
9. Ballistic Expert’s Falsified Credentials
At trial, the state called ballistic expert Joseph Kopera to testify about the type of
bullets that were used in the murder of Warren. Kopera was employed with the Maryland
State Police Laboratory.142 He testified that Warren had been shot with two different bullets,
a .357 caliber and a .40 caliber.143 In 2007, it was discovered that Kopera had falsified his
educational background.144 Kopera committed suicide shortly after this revelation.145 Swan
argues that the State failed to disclose this impeachment evidence and that his trial counsel
failed to investigate, discover, and use Kopera’s background as impeachment evidence
against Kopera during the trial. Presumably, initial postconviction counsel also was
ineffective for failing to discover and raise this issue.
This claim is barred as untimely under Rule 61(i)(1), and Swan’s allegations of
ineffective assistance of counsel do not constitute a miscarriage of justice under Rule
61(i)(5). Nothing suggests that a reasonable investigation would have uncovered Kopera’s
fraud. After all, Kopera was engaged in affirmative deception, which, according to Swan,
142
A1071-72.
143
A1093-95.
144
A9494.
145
Id.29
he supported with a forged transcript. Thus, we cannot say that trial counsel was objectively
unreasonable under Strickland for failing to discover this affirmative deception.
Additionally, in an effort to address this claim head on, in June, 2019, the Superior
Court ordered the bullets to be removed from evidence and gave both parties the opportunity
to re-examine the bullets.146 The State seized on this opportunity; the defense did not.147
The results of the State’s examination confirmed the testimony the jury heard: two types of
bullets were found at the scene.148
Presumably, Swan also argues that there was a miscarriage of justice because the State
withheld material impeachment evidence regarding a key government witness. While Swan
is correct that this is impeachment evidence, nothing suggests that the State knew these
records were falsified or that a reasonable investigation would have revealed Kopera’s
deception. Thus, Swan has not identified any suppression on the State’s part. As such, Swan
also fails to sufficiently state a miscarriage of justice based on the State’s obligation to
disclose impeachment evidence under Brady and its progeny.
Thus, this untimely claim is barred by Rule 61(i)(1) and is not saved by Rule 61(i)(5).
146
A8776.
147
A9495.
148
A9075
30
10. Detective Marvel’s Trajectory Analysis
At trial, the State called Detective Keith Marvel as the crime scene investigation
witness.149 Marvel was responsible for documenting the crime scene and collecting physical
evidence.150 He returned to the scene nine months after the murder to conduct a bullet
trajectory analysis.151 Marvel concluded that a bullet that was shot through the patio door
struck Warren in the back.152 Swan contends trial counsel failed to present “readily available
evidence” that Marvel’s analysis was unreliable,153 and initial postconviction counsel failed
to raise this claim.
This claim is procedurally barred as untimely under Rule 61(i)(1), and Swan’s claims
of ineffective assistance of counsel do not constitute a miscarriage of justice under Rule
61(i)(5) because, as the Superior Court concluded, Swan does not show that his counsel’s
failure to object was objectively unreasonable under the first prong of the Strickland
analysis.
The reality of this case and the trial was not so much how the
murder went down, but who were the players. Was it Swan?
That is where defense counsel focused their energy. I do not
find that trial counsel were ineffective for not objecting to the
trajectory evidence. If they were ignorant of potential flaws I
still do not fault them as they had to marshal their time and
149
A1164.
150
A1164-65.
151
A1199-1211.
152
A1211.
153
Opening Br. 36.
31
energy, and nobody has the luxury of hiring experts at every turn
of the case.154
Similarly, “the Strickland prejudice prong has [not] been established. . . . [T]his case was not
about how Mr. Warren was murdered[,] but it was about who was present. Therefore, the
trajectory evidence was not critical at all.”155
We find no error in the Superior Court’s analysis. Thus, Swan has failed to show
that there was a miscarriage of justice due to a violation of constitutional rights that
undermined the fundamental fairness of the trial, and this claim is barred under Rule
61(i)(1).
11. Cumulative Forensic Evidence
Swan combines the averments of claims eight, nine, and ten to argue that trial counsel
was ineffective for the cumulative effect that these alleged “deficiencies” produced.
“Cumulative error must derive from multiple errors that caused ‘actual prejudice.’”156 This
claim is barred under Rule 61(i)(1) for the same reasons the individual claims are barred.
Rule 61(i)(5) also is inapplicable. Swan has failed to prove that any single claim has created
a miscarriage of justice due to a violation of constitutional rights that undermined the
fundamental fairness of the trial; the combination of claims fares no better. Thus, the claim
of cumulative error fails.
154
Opening Br. Ex. A, at 54.
155
Id.156
Michaels v. State, 970 A.2d 223, 231-32 (Del. 2009) (citing Fahy v. Horn, 516 F.3d 169, 205 (3d
Cir.2008)).
32
12. Norcross Hearsay Claims
Swan next contends that trial counsel failed to adequately object to the admission of
Norcross’s hearsay statements.157 This claim has been litigated since 2001. Before trial,
Swan’s counsel filed a motion to exclude numerous out-of-court statements made by
Norcross.158 After an evidentiary hearing, the Superior Court partially granted the motion
and only allowed heavily redacted versions of Norcross’s pre-crime statements to be
admitted.159 This was one of the central issues on direct appeal, and this Court affirmed the
Superior Court.160 This issue was raised in the initial postconviction motion where it was
relitigated, and the statements were ruled to have been properly admitted.161 Thus, this claim
is barred under Rule 61(i)(4), and Swan’s challenges to the reliability of Norcross’s
statements (discussed above) do not constitute a changed circumstance under the interest of
justice exception.
13. Improper Closing Argument
Swan contends that trial counsel was ineffective for not objecting to three
prosecutorial remarks in closing argument and a fourth rebuttal reference to a videotape of
Swan kickboxing. Presumably, Swan also argues that initial postconviction counsel was
157
Opening Br. 39.
158
A5.
159
A6.
160
Swan, 820 A.2d at 352-54.
161
See State v. Swan, 2010 WL 1493122, at *3, *9 (Del. Super. Ct. Apr. 8, 2010); see also Swan,
28 A.3d at 384-385.
33
ineffective for failing to raise any of these arguments in the initial motion for postconviction
relief. We affirm the Superior Court’s ruling on each point.
First, Swan contends that trial counsel was ineffective for failing to object to allegedly
improper prosecutorial introduction of victim impact evidence.162 Specifically, Swan claims
statements that Warren’s “friends and relatives lost a good man, a good-hardworking, honest
man” or that Warren was “industrious, hard-working, a good citizen, a good Kent Countian,”
were improper during the guilt phase.163 This claim is procedurally barred by Rule 61(i)(4),
as this Court affirmed the use of such phrases on direct appeal.164 Swan fails to identify any
changed circumstance under the interest of justice exception.
Second, Swan argues that during the guilt phase, the State improperly commented
that “while Mr. Warren was in his home, little did he know what evil lurked outside.”165
Swan contends that the State impermissibly implied that Swan was evil.166 This claim is
barred by Rule 61(i)(1) as untimely. Presumably, Swan argues that there was a
miscarriage of justice under Rule 61(i)(5) because his constitutional right to effective
assistance of counsel was violated when trial counsel failed to object and initial
postconviction counsel failed to raise this claim. But as the Superior Court ruled, while
“the word ‘evil’ can be inflammatory regardless of how it is framed, in this case, the State’s
162
Opening Br. 41-42.
163
Id. at 42.
164
Swan, 820 A.2d at 356; see also Gattis v. State, 637 A.2d 808, 820-21 (Del. 1994).
165
A2849.
166
Opening Br. 42.
34
reference to ‘what’ evil lurked outside is not calling Swan evil. It is more of a foreshadowing
of pending doom.”167 We agree with the Superior Court’s conclusion and do not think
counsel was objectively unreasonable for failing to object. Thus, Rule 61(i)(5) does not save
this claim.
Third, Swan asserts that trial counsel failed to object to improper statements of proof
and the jury’s role.168 In closing, the prosecution commented that “[t]he standard of proof
in a criminal case is proof beyond a reasonable doubt,” and then stated, “Remember, your
job is to search for the truth, not doubt.”169 Swan cites Thompson v. State170 and Boatswain
v. State171 in support of his argument.
This claim is barred as untimely under Rule 61(i)(1), and Swan fails to identify a
miscarriage of justice under Rule 61(i)(5). Swan is correct in stating that the burden of proof
is an essential issue that goes “to the heart of any criminal case.”172 This Court has warned
prosecutors to “not disparage the ‘reasonable doubt’ standard that governs the jury’s
determination of guilt.”173 For example, in Thompson, the prosecutor stated, “The State asks
167
Opening Br. Ex. A, at 60.
168
Opening Br. 42-43.
169
A9504.
170
2005 WL 2878167 (Del. 2005).
171
2005 WL 1000565 (Del. 2005).
172
Hunter v. State, 815 A.2d 730, 738 (Del. 2002).
173
Id. at 732.
35
that you go back not seeking to find reasonable doubt, but to seek the truth.”174 This Court
held that such comments were improper.175
We believe that the State’s comment here was also improper. The State should not
have said, “Remember, your job is to search for the truth, not doubt.” However, even though
the remark was improper, the misconduct must prejudicially affect Swan’s right to a fair trial
to warrant a new trial. Hughes v. State176 requires the application of a three-pronged test to
determine whether an improper prosecutorial remark prejudiced the defendant in a way that
warrants a new trial. The court must consider
[1] the closeness of the case, [2] the centrality of the issue
affected by the (alleged) error, and [3] the steps taken to mitigate
the effects of the error.” In Hunter v. State, this Court added a
fourth prong: whether “the prosecutor’s statements are repetitive
errors that require reversal because they cast doubt on the
integrity of the judicial process.177
Here, even though the state’s statement was improper, Swan did not suffer substantial
prejudice to warrant a new trial. As noted by the Superior Court,
At the beginning of Swan’s trial [the court] informed the jury
that the State had the burden to prove the defendant guilty
beyond a reasonable doubt and the defendant had no burden of
proof whatsoever. At the close of the case, the jury was
instructed on reasonable doubt by [the court], including the
following: “Reasonable doubt does not mean a vague or
speculative doubt or a mere possible doubt . . . doubt that a fair,
reasonable, and intelligent juror would honestly entertain after a
174
2005 WL 2878167, at *2.
175
Id.176
437 A.2d 559 (Del. 1981).
177
Thompson, 2005 WL 2878167, at *2 (quoting Hunter, 815 A.2d at 733).
36
careful and conscientious consideration of all the evidence.” In
Swan, the State’s inappropriate remark was bookended before
and after with the correct standard of proof being beyond a
reasonable doubt.178
There can be little doubt that the burden of proof for determining guilt is a central
issue, and here, because there was no objection, there was no affirmative curative instruction
or other timely mediation efforts by the court. However, this is not a close case; there was a
substantial amount of evidence against Swan. Further, the comment was bookended by
instructions from the judge stating the correct standard. Additionally, the defense responded
to the State’s comments, “If you search for the truth you are going to find reasonable
doubt.”179 As such, we affirm the Superior Court’s ruling that Swan did not suffer prejudice
from the State’s improper statements or trial counsel’s failure to object. As a result, there is
no showing that the miscarriage of justice exception applies, and this claim is barred by Rule
61(i)(1).
Finally, Swan contends trial counsel was ineffective for failing to object to the State’s
suggestion that “one needs to be ‘aggressive’ to commit this ‘type of crime’ and that Swan’s
history of kickboxing was powerful evidence of his aggressive propensity.”180 This claim is
barred by Rule 61(i)(1), and Swan fails to identify a miscarriage of justice under Rule
61(i)(5).
178
Opening Br. Ex. A, at 64.
179
A2923.
180
Opening Br. 44.
37
The prosecutor stated, “[n]o question he’s aggressive. What type of crime was this?
Someone had to be awful doggone aggressive crashing through those doors like Tina said,
right? Absolutely.”181 This argument borders the line of impermissible, as evidence of being
a kickboxer is a far cry from committing murder. However, we do not find that Swan
suffered prejudice. The prosecution was not arguing that Swan’s kickboxing evidenced his
propensity for murder but was arguing that Swan possessed the strength to gain entrance to
the Warren’s home through the glass patio door. Thus, counsel was not ineffective for not
objecting, and Swan has not identified any other constitutional violation that would
constitute a miscarriage of justice under of Rule 61(i)(5). As such, the Superior Court did
not err in finding that this claim is barred by Rule 61(i)(1).
14. Inmate Edwards’s Fear
Next, Swan contends that trial counsel was ineffective for failing to object to
Edwards’s testimony that he was concerned about his safety in prison as a result of testifying
for the State.182 Presumably, Swan also argues that initial postconviction counsel was
ineffective for failing to raise this claim.
This claim is procedurally barred as untimely under Rule 61(i)(1), and Swan’s
claims of ineffective assistance of counsel do not constitute a miscarriage of justice
under Rule 61(i)(5).
181
A2951.
182
Opening Br. 46.
38
Before Edwards’s testimony, the defense objected to the introduction of a written
agreement between the State and Edwards, which indicated that if Edwards testified
truthfully, he would be transferred to a different facility.183 The State sought to introduce this
agreement into evidence, but the Superior Court barred its admission as improper. The court
ruled that the defense could introduce the evidence, but the court noted that doing so may
open the door on redirect. Defense counsel did ask if Edwards was given the opportunity to
transfer.184 The State, on redirect, asked Edwards what his life would be like if he stayed at
his current facility now that inmates knew he was testifying for the State.185 Edwards stated,
I would be in constant fear of my life. As a matter of fact, when
I was just downstairs, just now, Mr. Proctor is in the first cell that
I was talking about earlier, and he asked the other inmates in
there if I was in the cell at the time. Nobody happened to know
me and I kept my mouth shut and didn’t let nobody know what
my name was. As I was walking out, they were all hollering,
calling me a snitch, they were going to do this to me, that to me.
If I go back to DCC, I’m in a minimum-security facility. I have
one of the smaller sentences as far as time with most of the guys
in there, most of them are doing life sentences, fifteen, twenty,
thirty-five, forty years. They feel they have nothing to lose.
They don’t like people who testify to begin with. I would be in
fear of my life.186
Swan contends that a reasonable lawyer would have objected to this testimony
because “it portrayed Swan as a dangerous man . . . .”187 We disagree. This response is
183
A2921.
184
A2093.
185
A2108.
186
A2108-09.
187
Opening Br. 46.
39
merely about how other inmates treat a “snitch,” not about a fear of Swan. Thus, trial
counsel’s failure to object was not objectively unreasonable under the first prong of
Strickland and did not deprive Swan of any constitutional right that resulted in a miscarriage
of justice. As such, the claim is barred under Rule 61(i)(1).
15. Edwards’s Impeachment Evidence
and
16. Edwards’s Carjacking Conviction
Swan’s averments under these sections are closely related to the contentions of section
26 and will be addressed there.
17. Edwards’s Impeachment
Swan next argues that trial counsel was ineffective for not impeaching Edwards with
additional criminal conviction information and his mental health history.188 Presumably,
Swan also argues that initial postconviction counsel was ineffective for failing to raise this
claim.
This claim is procedurally barred as untimely by Rule 61(i)(1), and Swan’s
ineffective assistance of counsel claims do not constitute a miscarriage of justice
under Rule 61(i)(5). The record shows that trial counsel cross-examined Edwards and
elicited damaging information, such as his conviction of burglary of his parents’ house where
188
Id. at 49.
40
he stole his mother’s jewelry.189 Defense also inquired about kidnapping and robbery
convictions.190 Thus, there is no showing that counsel’s conduct was objectively
unreasonable under the first prong of Strickland. Further, there is no prejudice under the
second prong of Strickland because counsel elicited damaging testimony concerning
Edwards’s criminal history that the jury could weigh. Evidence of more criminal conduct,
though probative, would have been cumulative. As to the mental health information, nothing
suggests that any reasonable investigation would have revealed Edwards’s mental health
history. Therefore, this claim is barred by Rule 61(i)(1), and the exception of Rule 61(i)(5)
does not apply.
18. Rathel Lay Opinion Testimony
Swan contends trial counsel was ineffective for failing to object to the lay opinion
testimony of Deborah Rathel, the stepmother of Swan’s ex-girlfriend, about her
confrontation with Swan about his shoulder injury. It appears that trial counsel did object to
the admission of this evidence.191 Regardless, to the extent Swan’s claim is that counsel’s
objections were not better or more frequent, this claim is barred as untimely under Rule
61(i)(1).192 Swan fails to assert any colorable claims of a miscarriage of justice because of a
189
A9513-14.
190
Id.
191
A1649-59; A1709.
192
A1648-59.
41
constitutional violation that undermined the fundamental fairness of the trial. Thus, this
claim is barred under Rule 61(i)(1).
19. Stewart Impeachment
At trial, Michael Stewart testified for the defense to establish an alibi that Swan was
at Tiberi’s Gym on the day of the murder. The State then called Stewart’s manager as a
rebuttal witness to testify that Stewart was a people pleaser.193 Additionally, after Stewart
testified, the prosecutors and a detective visited Stewart. The State then had Stewart, and the
detective that visited, testify on rebuttal. Swan contends that trial counsel was ineffective for
failing to object to lay opinions offered by rebuttal witnesses and the impermissible tactics
the State used to undermine Stewart’s testimony. Presumably, initial postconviction counsel
was ineffective for failing to raise this claim in the initial motion.
This claim is barred as untimely under Rule 61(i)(1). Swan’s claims of ineffective
assistance of counsel do not constitute a miscarriage of justice under Rule 61(i)(5).
Because Stewart’s own rebuttal testimony undermined Stewart’s direct testimony,194 Swan
cannot show prejudice under the second prong of the Strickland analysis. Thus, this claim
is barred by Rule 61(i)(1).
193
Opening Br. Ex. A, at 78.
194
Id. at 79.
42
20. Brittingham Testimony
Swan argues that trial counsel was ineffective for not objecting to and moving to strike
the testimony of Charles Brittingham, who found Tina Warren’s wallet in a wooded area
behind the concrete plant where he worked with Swan.195 Swan contends that the State
asked Brittingham if Swan left his employment after the wallet and purse were found,
improperly inferring that Swan left because incriminating evidence was found.196 Swan
faults trial counsel for not objecting or moving to strike the testimony as improper.
Presumably, Swan also argues that initial postconviction counsel was ineffective for failing
to raise this claim in the first motion for postconviction relief.
This claim is barred as untimely under Rule 61(i)(1), and Swan’s claims of
ineffective assistance of counsel do not constitute a miscarriage of justice under Rule
61(i)(5). Even assuming counsel should have objected to the statement, Swan failed to
establish prejudice under the second prong of Strickland because other State witnesses and
Swan’s employment records informed the jury that Swan was laid off when the plant closed
in December 1996, not immediately after or because the wallet was found.197 As such, this
claim is barred by Rule 61(i)(1).
195
Id. at 80.
196
Id.
197
A6029.
43
21. Swan’s Texas Medical Records
Swan argues that both trial counsel and initial postconviction counsel were ineffective
for mishandling his Texas medical records.198 Trial counsel is faulted for not obtaining
Swan’s medical records from the time he was incarcerated in Texas, while postconviction
counsel is faulted for not presenting expert explanation of the medical records presented.199
These records include a radiologist report related to an X-ray taken of Swan’s shoulder at or
near where the scar is located.200 The report states that “the left shoulder . . . is somewhat
deformed to suggest previous trauma or surgical removal.”201
This claim is barred as untimely under Rule 61(i)(1). Presumably, Swan argues
that the exception of Rule 61(i)(5) applies because his counsel was so
constitutionally ineffective that there was a miscarriage of justice that undermined
the fundamental fairness of his trial. However, trial counsel’s failure to proffer medical
evidence of an X-ray report that did not state whether a scar existed at the time of the
examination was not objectively unreasonable. Further, Swan cannot show prejudice under
Strickland. At trial, the defense offered forensic pathologist Dr. Walter Hoffman who opined
that Swan’s scar was not the result of a gunshot wound.202 Any further evidence would have
198
Opening Br. 54.
199
Id.
200
Opening Br. Ex. A, at 82.
201
Id.
202
Id. at 83.
44
been cumulative, at best. Therefore, this claim fails to establish that Swan’s attorneys were
ineffective regarding the Texas medical records. Thus, this claim is barred by Rule 61(i)(1).
22. Pathology Testimony
Swan next argues that his trial counsel was ineffective in handling defense expert’s,
Dr. Walter Hoffman’s, mistaken testimony that he was “told” that Swan had been shot.
According to Swan, trial counsel should have “disabuse[d] the jury that they told their expert
that Swan had been shot.”203 Initial postconviction counsel presumably was ineffective, in
Swan’s view, for failing to raise this claim in the initial postconviction motion.
On cross examination, when Hoffman was asked about the circumstances relayed to
him in his examination, he answered,
I was told on the 19th of April, of this year, that the Defendant
Swan was shot by some individual in -- at that time, and that two
weapons were involved in a homicide, and that there are
photographs and x-rays . . . .204
When initially asked about the purpose of his examination, however, he answered that he
was first contacted to “ascertain whether or not this individual had sustained a gunshot
wound . . . .”205 Additionally, on redirect, Hoffman emphasized that he was initially told to
determine if the individual had been shot.206
203
Opening Br. 56.
204
A2250.
205
A2224.
206
A2299-300.
45
This claim is barred as untimely under Rule 61(i)(1). Presumably, Swan
argues that the exception of Rule 61(i)(5) applies because his counsel was so
constitutionally ineffective that there was a miscarriage of justice that undermined
the fundamental fairness of his trial. But lawyers are not ineffective under Strickland
because a live witness misspeaks. And here trial counsel reasonably attempted to correct the
mistake as soon as possible by emphasizing on recross that the expert was not told that Swan
had been shot; he was told that the State alleged Swan had been shot. The expert then
confirmed that the scar was not the result of a gunshot. As a result, Swan does not satisfy the
first prong of Strickland. Thus, this claim is barred by Rule 61(i)(1).
23. Tina Warren Cleared as Suspect
Swan argues that his trial counsel was ineffective for failing to object to any of the
testimony concerning Tina Warren’s consideration as a suspect. Presumably, initial
postconviction counsel also was ineffective for failing to raise this claim in the first motion
for postconviction relief.
On cross-examination, defense counsel introduced the topic of whether Warren knew
she was a suspect in the case.207 The Superior Court overruled the State’s objection to the
relevance of this questioning.208 Defense counsel continued its examination of Warren as
the prime suspect because defense counsel made a strategic decision to open the door on this
207
A978-79.
208
A981.
46
topic.209 It was on redirect that the State asked Warren about being cleared and whether the
police apologized.210 Later, Detective Brown testified about Warren as a prime suspect.211
This claim is procedurally barred as untimely under Rule 61(i)(1), and it is not saved
by Rule 61(i)(5) because there was no miscarriage of justice due to a constitutional violation
that undermined the fundamental fairness of the trial. Defense counsel made a strategic
decision to suggest other possible assailants, including Ms. Warren. “If an attorney makes a
strategic choice after thorough investigation of law and facts relevant to plausible options,
that decision is virtually unchallengeable . . . .”212 Thus, Swan fails to satisfy Strickland, and
the claim is barred.
24. DNA Evidence
Swan contends that defense counsel was ineffective for failing to present certain DNA
evidence and for not retaining a DNA expert. The Superior Court summarized the relevant
facts as such:
The State hired a DNA expert to analyze blood splatter samples
found in the Warren home. She determined that both Swan and
Norcross were excluded as contributors. The defense’s opening
statement informed the jury of this and that she would testify to
the same. The State obviously was not going to call her as their
witness, but the defense was.
During trial, the prosecutor spoke with the expert. Her
DNA testimony was not as open and shut as all counsel first
209
See A982-98.
210
A1002.
211
Opening Br. Ex. A, at 88.
212
Hoskins v. State, 102 A.3d 724, 730 (Del. 2014).
47
believed. Under certain scenarios, Swan could not be excluded
even if those circumstances might be remote. Having learned
this, the prosecutor informed defense trial counsel who then
spoke to the expert. After talking with her, he made the tactical
decision not to risk calling her. The defense was that there was
absolutely no physical evidence tying Swan to the murder
scene. The potential that the expert’s testimony might put a
crack in that argument was a remote risk, but a risk . . . .213
This claim is barred under Rule 61(i)(4) because the issue of whether counsel’s
handling of the DNA evidence was ineffective has been formerly adjudicated.214 Swan states
that he meets the requisite criteria to establish the interest of justice exception of Rule
61(i)(4), but he identifies no new facts reflecting any change in circumstances that warrant
its application.
Additionally, Swan argues that the State committed a Brady violation regarding the
disclosure of DNA evidence. He specifically contends that
[t]he prosecution’s failure to turn over this Brady material was
highly prejudicial to Swan. Had it been provided to a reasonably
competent attorney, the attorney would have been able to prove
that: (1) there was just one other contributor; (2) the other
contributor left his blood at the scene; and (3) Swan could not
have been that contributor.215
This claim was also briefed and rejected by the Superior Court in connection with the initial
motion for postconviction relief.216 Presumably, Swan argues that this claim is not barred
because counsel was ineffective for failing to raise the Brady issue on appeal. But the claim
213
Opening Br. Ex. A, at 90-91.
214
See Swan, 2010 WL 1493122, at *2-5; Swan, 28 A.3d 385-87; Opening Br. Ex. A, at 91.
215
Opening Br. 60.
216
A3640-47; A4900.
48
is barred as untimely under Rule 61(i)(1) and is not saved by the miscarriage of justice
exception of Rule 61(i)(5). As Judge Graves explained,
Trial counsel had Pineda’s DNA report that excluded Swan and
Norcross as potential sources of blood found at the crime scene.
They did not need the raw data she used to reach her
conclusions. They did not need another expert; they had the
State’s expert. The problem that caused trial counsel to abandon
calling Pineda occurred in the middle of trial. Trial counsel
testified before Judge Babiarz as to the problem and what
options they might have pursued.
Ultimately, they chose not to take the risk, no matter
how remote, that Pineda could not exclude Swan as a
source. Why? Because their overall defense strategy was
that the State had no physical evidence or confession
putting Swan at the scene. They felt the risk was too high.
Monday-morning quarterbacking does not work.217
We agree. Thus, the Strickland arguments do not save this claim.
25. Investigator Juliano
Swan contends that trial counsel was ineffective for hiring a private investigator with
a criminal record. Furthermore, he contends that counsel erred for failing to request a
colloquy once counsel learned that the trial judge had a familial relationship with the
investigator in question. Presumably, initial postconviction counsel was ineffective for
failing to raise these claims in the first motion for postconviction relief.
These claims are barred as untimely under Rule 61(i)(1), and the ineffective
assistance of counsel claims do not constitute a miscarriage of justice under Rule
217
Opening Br. Ex. A., at 93.
49
61(i)(5). Even if the hiring of this investigator fell below Strickland’s performance prong,
Swan has not carried his burden of showing that there is a reasonable probability that, but for
counsel’s unprofessional error, the result of the proceeding would have been different.
Therefore, the Superior Court did not err in denying this claim.
26. Prosecutorial Misconduct
Swan contends that the State failed to correct testimony from Edwards that it knew
was false and committed three separate Brady violations by not producing evidence relating
to Edwards’s criminal and mental history and the consideration the State offered to Edwards
and Phillips. Swan’s allegations of Brady violations may be barred by Rule 61(i)(1), (2), and
(3), but Swan argues that the miscarriage of justice exception applies because the State
violated his constitutional right to due process.
First, Swan contends that the State committed a Brady violation by failing to disclose
impeachment evidence relating to Edwards’s criminal history and mental health history.
Evidence regarding a witness’s criminal history or mental health issues that relate to the
ability to accurately perceive, recollect, and communicate would be considered
impeachment evidence, as this type of evidence could be helpful to attack the reliability of a
State’s witness. However, Swan has failed to show “a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.”218 Here, defense counsel cross-examined Edwards and elicited strong
218
Starling, 130 A.3d at 333 (quoting Wright, 91 A.3d at 988).
50
impeachment evidence concerning his criminal convictions of carjacking, burglary of his
parents’ home, and robbery.219 Thus, any more criminal history is cumulative.
Regarding Edwards’s mental health issues, it is unclear to us that the State knew about
his mental health issues. But even if the State knew of and improperly failed to disclose
Edwards’s mental health information, Swan has not shown that this creates “a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different,” given the significant amount of evidence against Swan. 220
Furthermore, the State only offered Edward’s testimony to help establish a connection
between Swan and Norcross, which had already been achieved through the testimony of
Bridget Phillips,221 Adam Howell222, and Gina Ruberto.223 Thus, Edwards’s testimony was
cumulative at best, and Swan has failed to identify a miscarriage of justice that would save
this claim.
Second, Swan contends the State failed to disclose the consideration Bridget Phillips
was paid in connection with the case. This claim fails to show any Brady violation resulting
in a miscarriage of justice because the record shows that defense counsel was aware of the
existence of a reward and its potential connection to Phillips, and defense counsel utilized it
219
A2090-92.
220
Starling, 130 A.3d at 333 (quoting Wright, 91 A.3d at 988).
221
A1894-1907.
222
A1722-38.
223
A1797-824.
51
in cross-examination.224 Thus, the jury was aware of the existence of the reward, the fact
that it had not been claimed, and the possibility that Phillips could get it. As such, Swan’s
claim remains barred.
Third, Swan contends the State committed a Brady violation by failing to disclose
that Edwards was granted a transfer to a different correctional facility in exchange for
testifying.225 But Edwards testified about his agreement at Swan’s trial.226 Furthermore,
during trial, defense counsel specifically did not want the agreement admitted into evidence
because it would have prejudicially bolstered Edwards’s testimony as “truthful.”227 Thus,
Swan does not show a colorable claim that there was a miscarriage of justice because
of a constitutional violation that undermined the fundamental legality, reliability,
integrity, or fairness of the proceedings leading to the judgment of conviction.
None of Swan’s Brady allegations reveal any subsequent changes in factual or legal
circumstances that warrant review under the interest of justice exception.228 Likewise, Swan
has not shown a constitutional violation that would constitute a miscarriage of justice
under Rule 61(i)(5).229
224
A9277.
225
Opening Br. 64-65.
226
A2092-95; A9201.
227
A2034-39.
228
Weedon, 750 A.2d at 527-28.
229
Wright, 91 A.3d at 985-86.
52
Fourth and finally, Swan contends that the State improperly elicited false testimony
concerning Edwards’s carjacking.230 This claim faces the same procedural bars as the
allegations of Brady violations. Swan argues that the State violated his due process rights by
using false testimony to affect the jury’s judgment, which presumably constituted a
miscarriage of justice under Rule 61(i)(5).
The United States Supreme Court “has consistently held that a conviction obtained
by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if
there is any reasonable likelihood that the false testimony could have affected the judgment
of the jury.”231 Similarly, this Court has held that the State’s knowing use of false or perjured
testimony violates due process.232 Mere contradictions, however, may not require reversal
because those contradictions may not constitute knowing use of false or perjured
testimony.233 Rather, mere contradictions in trial testimony establish a credibility question
for the jury.234
Here, Swan has proffered no evidence that the State knowingly elicited false or
perjured testimony concerning the facts surrounding Edwards’s carjacking. All of the facts
Swan points to merely created factual discrepancies that went to the reliability of Edwards’s
230
Opening Br. 48.
231
United States v. Agurs, 427 U.S. 97, 103 (1976)).
232
Jenkins v. State, 305 A.2d 610, 616 (Del. 1973) (citing Napue v. Illinois, 360 U.S. 264 (1959)).
233
Id. (citing Zutz v. State, 160 A.2d 727 (Del. 1960)).
234
Romeo v. State, 2011 WL 1877845, at *3 (Del. May 13, 2011) (citing Knight v. State, 690 A.2d
929, 932 (Del. 1996) (“It is well-settled that the trier of fact ‘is the sole judge of the credibility of the
witnesses and responsible for resolving conflicts in the testimony.’”)).
53
testimony. Thus, Swan fails to sufficiently show a colorable claim that there was a
miscarriage of justice because of a constitutional violation that undermined the
fundamental legality, reliability, integrity, or fairness of his trial.
27. Juror Misconduct
“Swan contends that trial counsel was ineffective for failing to object to the extra-
record influence from the public and failing to request an inquiry into the juror who was
discussing Swan’s guilt outside of the courthouse prior to deliberations.”235 Swan argues
that reasonable counsel would have raised the issue of juror taint due to outside influence
and discussion prior to deliberation and that trial counsel’s failure to do so prejudiced Swan.
Presumably, initial postconviction counsel was ineffective for failing to raise this claim in the
initial postconviction motion.
This claim is barred as untimely under Rule 61(i)(1), and Swan fails to identify
a miscarriage of justice under Rule 61(i)(5) that undermined the fundamental
fairness of the trial.
To succeed on a claim of improper jury influence, the defendant must either prove
that he was “identifiably prejudiced” by the juror misconduct or the existence of “egregious
circumstances—i.e., circumstances that, if true, would be deemed inherently prejudicial so
as to raise the presumption of prejudice in favor of the defendant.”236 A trial court has
235
Opening Br. 66.
236
Black v. State, 3 A.3d 218, 220 (Del. 2010).
54
discretion to decide that allegations of juror misconduct are not sufficiently credible or
specific to warrant investigation.237 We review the Superior Court’s “decision on the ‘mode
and depth of investigative hearings into allegations of juror misconduct’ and on the remedy
for such misconduct for abuse of discretion.”238
Here, after a break, a member of the sheriff’s office reported to the court that they
overheard a juror state “guilty guy” and “trial” while out to lunch.239 The Superior Court
noted that there is only one guilty guy and that was Norcross. Further, Norcross’s admission
to this crime had been presented to the jury by this point. Thus, the court decided “that the
remark wouldn’t connote anything.”240 The court then asked defense counsel to express its
concerns. Defense counsel raised the issue that this incident could possibly mean the jurors
were prematurely discussing the case and asked that the court remind the jury of their duty
not to discuss the details of the trial with anyone.241 At the end of the day of trial, the court
reminded the jury “not to discuss the case with people outside the courtroom.”242
237
Id. at 221 (citing Lovett v. State, 516 A.2d 455, 475 (Del.1986)).
238
Cooke v. State, 97 A.3d 513, 549 (Del. 2014) (citing Caldwell v. State, 780 A.2d 1037, 1058 (Del.
2001) (quoting Massey v. State, 541 A.2d 1254, 1257 (Del. 1988))); see also Lovett, 516 A.2d at
475 (“The Trial Judge has very broad discretion in deciding whether a case must be retried or the
jurors summoned and investigated due to alleged exposure to prejudicial information or improper
outside influence.”).
239
A2215-17.
240
A2216.
241
A2217.
242
A2310-11.
55
Two statements taken out of context do not evidence improper jury conduct. It is true
that further investigation, or more pressing by trial counsel for an investigation, could have
quashed any fears. But the court was well within its discretion to decide that “guilty guy”
referred to Norcross and that the statements did not warrant investigation. Further, trial
counsel acted reasonably by raising its concerns to the court. As such, Swan failed to
sufficiently prove either prong of Strickland, and the exception in Rule 61(i)(5) does not
apply. We therefore find no error in the Superior Court’s determination that this claim is time
barred under Rule 61(i)(1).
28. Supreme Court Facts
Swan next contends that this Court violated his constitutional right to meaningful
appellate review by relying upon facts outside the record of his case.243 Swan does not
identify those facts in his appellate briefs, but instead refers to his submissions in the Superior
Court.244 According to Swan’s Superior Court submissions,245 this Court improperly relied
upon the following facts from Norcross’s trial in its opinion resolving Swan’s direct appeal:
Norcross claimed that Swan started shooting, but that Norcross’
gun would not fire. Swan allegedly grabbed Norcross’ gun,
cleared it, and then used it to shoot Warren in the head. After the
two men started running to Swan’s car, Swan told Norcross that
he wanted to go back and kill the woman because she was a
243
Opening Br. 67.
244
Id. at n.238.
245
A5597-600; A7886-90.
56
witness. Norcross stopped Swan by shooting him in the
shoulder.246
These same statements appear in the factual background section (which was taken from the
factual and procedural section of the direct appeal opinion) of this Court’s opinion affirming
the Superior Court’s denial of Swan’s first motion for postconviction relief.247 Swan also
argues that this Court should not have relied upon the following in its postconviction opinion:
(i) the Superior Court’s observation that Swan’s blood could have been somewhere in the
Warren home or on Kenneth Warren’s body or clothes; and (ii) the Superior Court’s reference
to evidence of Swan’s “intellectual deficit.”248
The Superior Court did not address the merits of this claim (finding that it was best
left to this Court), but did hold that the claim was untimely under Rule 61(i)(1) and not saved
by Rule 61(i)(5).249 We agree. Even if Guy applied here,250 this claim is barred by Rule
61(i)(1) as untimely. Swan has not shown ineffective assistance of counsel or another
constitutional violation that would constitute a miscarriage of justice under Rule 61(i)(5).
As to the statements Norcross made to police that Swan identifies in this Court’s
opinion on direct appeal (as well as this Court’s first postconviction opinion), Swan is correct
246
Swan, 820 A.2d at 349.
247
Swan, 28 A.3d at 368.
248
A5597-600; A7886-90.
249
Swan, 2020 WL 7259626, at *46-47.
250
The applicability of Guy to this claim is questionable because Swan’s first postconviction counsel
challenged these statements in the previous postconviction proceedings and cannot be ineffective for
failing to raise them.
57
that those statements were not presented to the jury in his trial. Swan has not shown,
however, that this Court relied upon those statements to reach its rulings and thereby
deprived him of meaningful appellate review. He claims that this Court “specifically noted
its reliance on a review of Mr. Norcross’s trial record in considering and disposing of
Petitioner’s appeal” on direct appeal, but cites nothing to support this statement.251 A
footnote stating that the facts in the opinion could “be liberally cross-referenced to similar
facts found in” Norcross’s trial and another footnote stating that “[a]lthough this Court
independently reviewed Swan’s death sentence, our analysis [of the applicable statutory
aggravating circumstances for imposition of the death penalty] includes several of the same
points discussed in” Norcross’s appeal was not an acknowledgement by this Court that it
relied on facts outside the record to decide Swan’s appeal.252
Swan also fails to mention that the identified statements appear only in the factual and
procedural background section of the direct appeal opinion and the factual background
section of the first postconviction opinion. The statements do not appear in the Court’s
analysis of Swan’s substantive claims in either opinion. For example, in addressing Swan’s
argument that the evidence was insufficient to support his convictions, the Court did not refer
to or rely upon Norcross’s statement attempting to blame Swan for the murder. Instead, this
Court highlighted evidence presented at Swan’s trial, including but not limited to, Tina
251
A5598-99; A7888.
252
Swan, 820 A.2d at 346 n.2 and 360 n.54.
58
Warren’s testimony about what happened the night of her husband’s murder, Norcross’s and
Swan’s employment at the same concrete plant where Tina Warren’s purse was found after
the murder, Bridget Phillips’s testimony that she overheard Norcross and Swan talking about
a time when Swan had been shot and observed a scar on Swan’s left shoulder to which he
pointed, informing her that the bullet was still there, and testimony concerning the presence
of a small red car near the Warrens’ house before the murder and Swan’s ownership of a red
Dodge Daytona.253 There is no indication that this Court relied on the challenged statements
to decide either of Swan’s appeals.
The other statements Swan challenges do not originate from outside the record as he
contends but are instead based on his disagreement with certain findings and rulings in his
first postconviction proceeding. In concluding that Swan had not shown a reasonable
probability of a different result if his trial counsel had adequately investigated and presented
the DNA evidence, the Court stated this was “not a case where the exclusionary results of
the DNA testing would have exonerated Swan.”254 The Court also quoted the Superior
Court’s observation regarding the DNA evidence:
“[T]he fact that Swan’s DNA is absent from the samples does
not prove that he was not one of the murderers. Nor does it
mean that Swan’s blood was not somewhere else in the
Warren home or on Warren’s body or clothes. It only means
that Swan’s blood or DNA was not on the samples tested by
ReliaGene.”255
253
Id. at 349.
254
Swan, 28 A.3d at 385.
255
Id. (quoting Swan, 2010 WL 1493122, at *3 (emphasis added)).
59
Swan contends that the bolded sentence contradicts a police officer’s testimony that the blood
was confined to the kitchen and that he gathered all of the blood evidence he could find,256
which means the Court improperly relied upon evidence outside the record to decide his
appeal. We disagree.
Swan’s description of the police officer’s postconviction testimony is inaccurate and
incomplete. The police officer did recall that “the blood that was found within the scene was
confined to the kitchen area and on the floor surrounding Kenneth Warren.”257 He did not
testify that he gathered all of the blood evidence but that he took “[r]epresentative samples”
from each area where he “visibly saw the blood.”258 In addition to taking representative
samples of the visible blood at the crime scene, the police officer cut three pieces from the
sweatpants Kenneth Warren was wearing for testing.259 ReliaGene tested the blood samples
and sweatpants samples (as well as scrapings of Kenneth Warren’s fingernails and samples
of Kenneth Warren’s shirt and an order form found in the kitchen) and excluded Swan (and
Norcross) as minor contributors to a DNA mix that was found in one of the blood samples
and one of the sweatpants samples.260
256
A5598; A7887.
257
A4705.
258
Id.259
A4661-64.
260
A3774-80; A3790-96.
60
Based on this record, the Superior Court could infer that the absence of Swan’s DNA
from the samples did not necessarily mean it was not present elsewhere at the crime scene
or on the victim or victim’s clothing. The police officer did not collect, and ReliaGene did
not test, all of the blood at the crime scene or all of the victim’s clothing. By quoting the
Superior Court’s findings, this Court did not rely on evidence outside the record to decide
Swan’s appeal. Swan cannot show his counsel was objectively unreasonable for failing to
challenge this statement or that he suffered any prejudice.
In contending that this Court improperly referred to an “intellectual deficit” he never
claimed to have, Swan ignores most of this Court’s analysis of his claim that trial counsel
was ineffective for failing to develop and present mitigating evidence. The mitigating
evidence, which the Court summarized in its postconviction opinion,261 included testimony
and reports of experts retained by Swan’s postconviction counsel about brain damage,
auditory information processing impairments, and memory impairments that Swan
suffered.262 The Court described the evidence of “brain injury,” “brain damage,” “mental
health deficits,” “intellectual deficit,” and “IQ” as “at best, contradictory.”263 The Court also
discussed the Superior Court’s conclusion that this evidence was countered by, among other
things, Swan’s ability to hold responsible jobs and function normally in society.264
261
Swan, 28 A.3d at 379-81.
262
See, e.g., A4775; A4782-88; A4545-47.
263
Swan, 28 A.3d at 393-94.
264
Id.61
Ultimately, the Court concluded that Swan failed to show a reasonable probability that
presentation of the mitigating evidence would have resulted in a different sentence. Swan’s
disagreement with the phrase “intellectual deficit” to describe some of the mitigating
evidence he presented does not show that this Court relied on evidence outside the record as
he contends. A review of the Court’s entire postconviction opinion, as opposed to the two
words selected by Swan, shows that the Court well-understood the nature of the mitigating
evidence Swan presented.
This Court relied on copious facts within the record to affirm Swan’s conviction and
the denial of his first motion for postconviction relief. Nothing in either opinion suggests
that the Court deprived Swan of meaningful appellate review by relying on evidence outside
the record to decide Swan’s appeals. Thus, Swan fails to show a reasonable probability that
if his counsel had sufficiently challenged the statements above, the result of the proceedings
would have been different. Nor has he shown another constitutional violation that would
satisfy Rule 61(i)(5).
29. Confrontation Clause
Swan next contends that the admission of the hearsay statements of co-defendant
Norcross implicating himself and Swan violated his constitutional right to confrontation.265
265
Opening Br. 68.
62
He specifically points to the testimony of Matthew Howell,266 Gina Ruberto,267 Bridget
Phillips,268 and Sergeant Charles Brown.269
This claim is procedurally barred by Rule 61(i)(4). This claim has been repeatedly
litigated.270 For example, in rejecting Swan’s same argument on direct appeal, this Court
explained:
The trial judge properly allowed Bridget Phillips to relay
Swan’s adopted admissions pursuant to D.R.E. 801(d)(2)(A) &
(B). Phillips testified that Norcross admitted that he and Swan
were involved in the murder of Kenneth Warren. With Swan
present, Norcross told Phillips that Swan was shot during the
scuffle with the victim. Norcross pointed to a scar on Swan’s
shoulder and stated that the scar was the result of a gunshot
wound that occurred during the robbery. Swan, present at the
time Norcross made the statement, confirmed it. Swan then
stated that the bullet is still in there, gesturing with his hand
toward the scar. These statements and actions manifested
Swan’s adoption of belief of the truth of Norcross’[s] statements
made while Phillips was present.
The trial judge did not abuse his discretion by denying
Swan’s motion for a mistrial where one plural reference was not
redacted from a taped statement made by Norcross’[s] former
girlfriend, Gina Ruberto. In the statement, Ruberto repeated an
account of the robbery and murder that Norcross gave her
shortly after the murder had occurred. Despite the trial judge’s
order that references to any accomplice be redacted, the State
failed to redact one plural pronoun reference where Ruberto
mentioned that Norcross had said “they” parked the red car near
the victim’s home. Upon defense objection, the trial judge
immediately provided a curative instruction to the jury:
266
A1722-66.
267
A1797-824.
268
A1890-948.
269
A1964-90.
270
See Swan, 820 A.2d at 352-54; Swan, 28 A.3d at 384-85.
63
A portion of the tape you have just heard
and a portion of the transcript . . . contained
material that I have ruled inadmissible. I believe
that it got in there inadvertently, but I do not know
that for sure.
In any event, I have stricken that tape and
that transcript from the record. They are no longer
in evidence and you are to disregard anything you
might recall, either from the tape or from the
transcript. You may be guided by the testimony
that Ms. Ruberto has given from the stand and the
cross-examination you are about to hear. And the
very first tape, the short tape, is still in evidence.
But the tape that was just played for you is no
longer evidence in this case.
This instruction neutralized prejudice to the defendant,
and the jury must be presumed to have followed the court’s
instructions.
The trial judge took great pains to ensure that the portions
of Swan’s accomplice’s statements (Norcross’[s] confession to
the police and his out-of-court statements to Howell, Ruberto,
and Phillips) that inculpated Swan were redacted, as well as any
portions which appeared to shift blame from Norcross to Swan,
or anyone else. Norcross’[s] statements contain sufficient
guarantees of reliability and are consistent in their essential
elements: that Norcross and another person dressed in
camouflage clothing broke into a home occupied by a family,
shot the husband, and a stole a purse. Aside from Norcross’[s]
confession, the statements made to his co-worker, his girlfriend,
and his wife were not made under the pressure of a police
interrogation, where a declarant, arguably, is more likely to shift
blame to others in order to curry favor with authorities.271
271
Swan, 820 A.2d at 353-54.
64
Swan has not identified any change in circumstance that would warrant a review of
this claim under the “interest of justice” exception. Thus, the Superior Court did not err
ruling that this claim is procedurally barred.
30. Limited Evidentiary Hearing
Swan next contends that the Superior Court erred in not granting more time for
evidentiary hearings in connection with the current postconviction motion to address claims
concerning the Proctor note, the Norcross impeachment evidence, Swan’s DNA exclusion,
and other issues.272 Under Rule 61(h)(1), the Superior Court has broad discretion to
determine the need for an evidentiary hearing.273 “While the decision to hold an evidentiary
hearing in a postconviction proceeding is within the discretion of the Superior Court, in
capital cases, holding such an evidentiary hearing should be the norm, not the exception.”274
Here, the Superior Court did allow for evidentiary hearings based on the current motion.275
Judge Parkins held a one-day hearing on March 23, 2017, and Judge Graves held a four-day
hearing in 2019. The decision not to hold more evidentiary hearings was well within the
discretion of the Superior Court. Swan has not demonstrated that the Superior Court abused
its discretion.
272
Opening Br. 70.
273
Del. Super. Ct. Crim. R. 61(h)(1).
274
Outten v. State, 720 A.2d 547, 551 (Del. 1998).
275
See A8877, A9110, A9297.
65
31. Cumulative Error
Next, Swan contends that the culmination of the constitutional infirmities undermined
the integrity and reliability of Swan’s conviction.276 Cumulative error must derive from
multiple errors that caused “actual prejudice.”277 As described above, all of the claims Swan
asserts are procedurally barred. Therefore, Swan has failed to establish cumulative error.
32. Actual Innocence
Finally, Swan contends that he is actually innocent based upon the DNA evidence,
Swan’s Texas prison medical records, Norcross’s October 2006 recantation testimony, and
the fact that Norcross’s denial that Swan was his accomplice is corroborated by statements
Norcross made within 24 hours of his arrest.278 For the reasons discussed throughout this
Opinion, we find that Swan has not established his actual innocence.
B. The Superior Court Did Not Err in Denying Swan’s Motion to Recuse
In the final issue on appeal, Swan contends that the Superior Court erred in denying
his motion to recuse. Swan argues that due process demanded recusal, even if there was no
actual bias, because, objectively speaking, the probability of actual bias was too high to be
constitutionally tolerable. We disagree.
276
Opening Br. 71.
277
Michaels v. State, 970 A.3d 223, 231-32 (Del. 2009) (citing Fahy v. Horn, 516 F.3d 169, 205 (3d
Cir. 2008)).
278
Opening Br. 72-73.
66
When confronted with a motion to recuse or disqualify based on a claim of personal
bias or prejudice, a Delaware judge undertakes a two-step analysis outlined by this Court in
Los v. Los.279 First, the judge must be subjectively satisfied that she can proceed to hear the
matter free from bias or prejudice concerning the party. Even if the judge is satisfied that she
can continue free from bias, “the judge must objectively examine whether the circumstances
require recusal because ‘ there is an appearance of bias sufficient to cause doubt as to judge’s
impartiality.’”280
Generally, “a trial judge satisfies the first prong of the Los test if he makes that
determination on the record.”281 Here, the Superior Court judge explicitly stated that he
believed he could continue to hear the case free from bias.282 We see no abuse of discretion
in this decision.
Therefore, the claim turns on the second prong—the objective test. Swan points to
numerous specific actions he contends demonstrate an objective appearance of bias that
would call the impartiality of the trial judge into question.283 Specifically, Swan argues that
the potential for objective bias is evident in “the court’s repeated derogatory references to the
length of Swan’s pleadings, its irrelevant basis for failing to remove conflicted Delaware
279
595 A.2d at 384-85.
280
Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH, --- A.3d ---, 2021 WL 419146, *8
(Del. Feb. 15, 2021).
281
State v. Wright, 2014 WL 7465795, at *3 (Del. Super. Ct. Dec. 16, 2014).
282
A8885 (“So my subjective belief is that I can remain objective, free of bias and prejudice and try
to decide this case.”).
283
Opening Br. 83-90.
67
counsel, its repeated attack upon Swan’s counsel for the lengthy proceedings despite the
State [and] the court’s contribution to the delays, its erroneous attack on federal counsel for
local counsel’s error, [and] its actions as a third prosecutor throughout the proceedings.”284
The main focus of the second prong is whether an objective observer, examining all
of the circumstances, would conclude that a fair or impartial hearing is unlikely.285 The
Superior Court considered the second Los prong, stating “the appearance of bias has no legs.
The fact that you may not like what I do does not create a bias. So I am fully satisfied that
Mr. Swan is going to be afforded a fair and impartial process.”286 We agree. In Gattis v.
State, this Court, faced with a similar appeal of the denial of a motion to recuse, stated,
Judicial rulings alone, such as the denial of a motion to recuse
or disqualify or of a request to increase the time limitation on the
briefing schedule or the length of the briefs, are insufficient
bases for recusal. To an objective observer, these particular
rulings would carry little or no weight.287
Furthermore, statements that may be construed as hostile toward defense counsel do not
necessarily equal objective bias.288 Nothing Swan has proffered evidences an appearance of
bias. Instead, Swan’s complaints about the behavior of the judge who ultimately decided—
and denied—the postconviction relief motion now before us appear to be the product of
Swan’s disagreement with the decisions the judge made throughout this process. That those
284
Reply Br. at 53.
285
Fritzinger v. State, 10 A.3d 603, 613 (Del. 2010).
286
A8885.
287
Gattis, 955 A.2d 1286; State v. Bradley, 2017 WL 2209896, at *4 (Del. Super. Ct. May 8, 2017).
288
See Jones v. State, 940 A.2d 1, 18-19 (Del. 2007).
68
decisions expressed disagreement with and rejected Swan’s arguments is not evidence of
hostility or bias. Thus, the Superior Court did not abuse its discretion in denying Swan’s
motion for recusal.
III. CONCLUSION
Based on the foregoing, the Superior Court’s February 21, 2020 Memorandum
Opinion is AFFIRMED.
69