State v. McGuiness ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) ID No. 2206000799
)
KATHLEEN MCGUINESS )
)
Defendant. )
Submitted: August 1, 2022
Decided: August 30, 2022
Defendant’s Motion for Judgment of Acquittal – GRANTED in part
and DENIED in part
Defendant’s Motion for a New Trial – DENIED
MEMORANDUM OPINION
Mark A. Denney, Jr., Esquire, Maria Knoll, Esquire, and Nicole Mozee Esquire,
Department of Justice, 820 North French Street, 7th Floor, Wilmington, Delaware
19801. Attorneys for State of Delaware.
Steven P. Wood, Esquire, Chelsea A. Botsch, Esquire, and Dean A. Elwell, Esquire,
McCarter & English, LLP, Renaissance Centre, 405 North King Street, 8th Floor,
Wilmington, Delaware 19801. Attorneys for Defendant.
CARPENTER, J.
1
Before this Court is Defendant’s Motion for Judgment of Acquittal and
Motion for a New Trial. For the reasons set forth in this Opinion, Defendant’s
Motion for Judgment of Acquittal is GRANTED in part and DENIED in part and
Defendant’s Motion for a New Trial is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 6, 2022, the Defendant was indicted by a Grand Jury in Kent County,
Delaware.1 Defendant was charged with Conflict of Interest (Count One), Felony
Theft (Count Two), Structuring: Non-Compliance With Procurement Law (Count
Three), Official Misconduct (Count Four), and Act of Intimidation (Count Five).2
On June 14, 2022, the Court began a jury trial in this matter.3 The State rested
its case-in-chief on June 28, 2022, and the Defendant moved for a judgment of
acquittal on each of the five counts pursuant to Rule 29(a).4 The Court reserved its
decision and Defendant put on her case, resting on June 29, 2022.5 On June 30,
2022, the parties presented closing arguments and the Court instructed the jury on
the law.6
1
Def.’s Mot. for J. of Acquittal, D.I. 39, at ¶6 (July 20, 2022).
2
Kent Co. Indictment, D.I. 1 (June 6, 2022).
3
Def.’s Mot. for J. of Acquittal at ¶4.
4
Id. at ¶5.
5
Id. at ¶6.
6
Trial Tr. June 30, 2022, Case No. 2206000799.
2
On July 1, 2022, the twelve-person jury found Defendant guilty on Counts
One, Three, and Four of the Indictment.7 Defendant promptly renewed her Rule
29(a) motion and informed the Court of her intention to file a Rule 29(c) motion and
a Rule 33 motion.8
On July 20, 2022, Defendant timely submitted a Renewed Motion for
Judgment of Acquittal and a Motion for a New Trial.9 The State responded on July
25, 2022.10 On August 1, 2022, the Defendant submitted a reply in support of her
motions for Judgment of Acquittal and New Trial.11 This is the Court’s decision on
the Defendant’s motions.
II. DISCUSSION
A. Motion for Judgment of Acquittal
1. Standard of Review
A motion for judgment of acquittal is governed by Superior Court Criminal
Rule 29, which provides that such motions should be presented at the close of the
State’s evidence, or within seven (7) days after the jury is discharged. 12 “The court
on motion of a defendant or of its own motion shall order the entry of judgment of
7
Def.’s Mot. for J. of Acquittal at ¶8.
8
Id. at ¶8.
9
Def.’s Mot for J. of Acquittal at p. 38; Def.’s Mot. for a New Trial, D.I. 40, at p. 57 (July 20,
2022).
10
State’s Resp. to Def.’s Mot. for J. of Acquittal and New Trial, D.I. 41, at p. 20 (July 25, 2022).
11
Def.’s Reply in Support of Her Motions for J. of Acquittal and New Trial, D.I. 42, at p. 40
(Aug. 1, 2022).
12
Super. Ct. Crim. R. 29.
3
acquittal of one or more offenses charged in the indictment or information after the
evidence on either side is closed if the evidence is insufficient to sustain a conviction
of such offense or offenses.”13
The standard of review for a motion for judgment of acquittal is whether any
rational trier of fact, viewing the evidence in the light most favorable to the State,
could find a defendant guilty beyond a reasonable doubt of all the elements of the
crime.14 “Evidence that is insufficient to support a conviction warrants reversal, but
the mere fact that the evidence is in conflict does not.”15 As such, the Court will not
supplement its position over the jury’s, when there is sufficient evidence to support
the jury’s finding. Upon consideration of a motion for judgment of acquittal, the
evidence and all reasonable inferences are considered in the light most favorable to
the State.16
2. Analysis
a. Count One – Conflict of Interest
First, the Defendant contends that in order to be guilty of Conflict of Interest,
Elizabeth “Saylar” McGuiness (“Daughter”) must have received a financial benefit
to a greater extent than other similarly situated employees at the Delaware State
13
Id.
14
State v. Williams, 2015 WL 351872, at *1 (Del. Super. Ct. Jan. 27, 2015).
15
State v. Dixon, 2022 WL 2840041, at *2 (Del. Super. Ct. July 20, 2022).
16
Id.4
Office of Auditor of Accounts (“OAOA”).17 But Defendant argues that no rational
jury could place the three individuals referenced in the Indictment, Lizbethmary
Vargas, Rooslie Maurice, and Lydia August, in the “same class or same group of
persons” nor find that Daughter received a greater financial benefit than those
individuals.18 Defendant contends that Daughter and the other casual/seasonal
employees were subjected to the same hour restrictions and same tasks.19 Also, two
other casual/seasonal interns, Virginia Bateman and Kyra Marshall, testified that
they were permitted to “bank” hours for weeks they exceeded their hour
restrictions.20
The Defendant asserts that while the evidence presented during the trial
reflected that Daughter was the only casual/seasonal college employee permitted to
continue her work remotely while away at college, there is no evidence to suggest
that other casual/seasonal employees were denied the same privileges.21 While the
records reflect that the Daughter held a position that would allow her to work beyond
the 29.5 hours limitation for seasonal/casual employees, the Defendant argues the
evidence demonstrates she never did and the higher allotted hours in the system was
a clerical mistake.22 Finally, Defendant argues that Vargas, Maurice, and August all
17
Trial Tr. June 28, 2022, Case No. 2206000799, at 179 (2022).
18
Def.’s Mot. for J. of Acquittal at ¶¶14-15.
19
Id. at ¶¶28, 30.
20
Id. at ¶29.
21
Id. at ¶32-33.
22
Id.; Trial Tr. June 28, 2022, at 180.
5
resigned for personal reasons and were not fired by the OAOA due to Daughter’s
employment.23
Conversely, the State argues that the evidence produced at trial established
that the Defendant participated in the review of disposition of a matter pending
before the State in which she had a personal or private interest.24 The State asserts
that the Defendant was the Daughter’s immediate supervisor and highlights several
official documents confirming that status, such as Daughter’s “onboarding”
paperwork.25 Moreover, the State highlights the Daughter’s informal hiring,
available work hours, ability to work remotely while attending college out of state,
“banked” hours applied to later weeks, inactivity on her State email and State VPN,
and Defendant’s handling of Daughter’s work complaints about OAOA staff. 26 The
State argues that these bases support that Count One was proved beyond a reasonable
doubt, and urges the Court to uphold the jury’s accurate finding that Defendant is
guilty.27
Before addressing the elements of this offense, the Court wants to emphasize
that there is no statute that prohibits a state officer such as the Auditor from hiring a
close relative. However, when this occurs, the state officer must remove themselves
23
Def.’s Mot. for J. of Acquittal at ¶¶38-39.
24
State’s Resp. at 4.
25
Id. at 4.
26
Id. at 4-5.
27
Id. at 5.
6
from the hiring decision and allow the normal administrative function of the office
to make the decision, particularly when they have a personal or private interest in
that decision. While the Court is not naïve enough to believe these decisions would
generally be contrary to the wishes of the state officer, the Delaware code28 at least
provides some minimum oversight in the process.
Here it is difficult to even suggest that Defendant did not have a personal
interest in the hiring decision. A summer job for Daughter and Daughter’s friends
clearly by any commonsense analysis would end in the conclusion that Defendant
had a personal interest in this matter. As a result, Defendant’s conduct was required
to be consistent and in compliance with that set forth in 29 Del. C. § 5805, and her
failure to exercise reasonable and good judgment here placed her in jeopardy of
violating that statute.
Conflict of Interest required the State to prove beyond a reasonable doubt that
(1) the Defendant was a “state officer” at the time of the charged offense; (2) the
Defendant “participated on behalf of the State in review or disposition of a matter
pending before the State,” and (3) the matter was one in which the Defendant had a
“personal or private interest.”29 The first element is easily satisfied as it is
undisputed that the Defendant was serving as the Delaware State Auditor during the
28
See generally 29 Del. C. § 5801 (“State Employee’s, Officer’s and Official’s Code of
Conduct”).
29
29 Del. C. §5805.
7
dates alleged in the Indictment. She began her tenure as the State Auditor in January
of 2019 and remains in that position.
Next, the evidence clearly established that the Defendant participated in the
hiring and supervising of Daughter as a casual/seasonal worker in 2020. It appears
that Daughter did not apply nor sit for a formal interview but was hired at the
insistence of her mother. It was also established that Defendant generally oversees
the hiring and firing of personnel in her office, and immediately oversaw that of
Daughter’s, as evidenced by the Defendant’s signature on various official
employment documents. Additionally, the Defendant directly oversaw and assigned
work to Daughter while she was employed at the OAOA. There was sufficient
evidence presented to the jury which established the second element of this offense.
The final element relates to the state officer’s “personal or private interest” in
a matter and is defined in the code as meaning “an interest which tends to impair a
person’s independence of judgment in the performance of the person’s duties with
respect to that matter.”30 The statute specifically reflects that when “a financial
benefit may accrue to a close relative to a greater extent than such benefit to others
who are members of the same class or group of persons” the state officer’s judgment
and independence is impaired. 31
30
Jury Instructions, Case No. 2206000799, at 6 (June 30, 2022); Trial Tr. June 30, 2022, at 116.
31
Id.
8
Even when evidence regarding the use of state vehicles, the “banking” of
hours, or the work performed by Daughter is removed, the bottom line, which is
undisputed, is that Daughter was allowed to continue to work after she left Delaware
to attend college in Charleston, South Carolina and received payments during those
months. This extra salary earned while away at school is a sufficient financial
benefit secured by Daughter and one, based on the evidence presented, that was not
granted to other casual/seasonal employees during the same timeframe. The
evidence clearly established that Daughter was not present in the OAOA during this
timeframe and did not utilize her state email to transmit the work that she was
allegedly performing for the OAOA.
The decision whether to accept Daughter’s testimony as to the work she
allegedly performed while in South Carolina is a credibility decision to be made by
the jury and not the Court. The Court, however, is satisfied there was a reasonable
basis for the jury to conclude this was a benefit unique to Daughter’s situation and
not one generally available to other casual/seasonal employees at the OAOA.
In sum, Defendant’s poor judgment allowed a close relative to receive a
greater financial benefit than others similarly situated and there can be no other
reasonable conclusion based upon the facts presented during the trial. Therefore, the
Court will not disturb the jury’s decision. The Court finds the State has met its
9
burden of proving beyond a reasonable doubt the elements of the conflict of interest
statute and the Motion for Judgment of Acquittal on Count One is DENIED.
b. Count 3 – Structuring: Non-Compliance With
Procurement Code
Next, Defendant challenges the jury’s finding of her guilt as to Count Three
Structuring: Non-Compliance With the Procurement Code. To start, Defendant
attacks the State’s legal theory underlying Count Three and argues that the
fragmenting of payments of a contract cannot form the basis for a violation of 29
Del. C. § 6903(a) (“Section 6903(a)”) because the plain language of the statute
requires that a contract be fragmented, not payments under a contract.32
And, even if the State furthered a viable legal theory, the Defendant argues
that the State has failed to prove that Defendant had the requisite mentes reae for
this charge, in that she willfully fragmented or subdivided the My Campaign Group
(“MyCG”) contract into multiple parts somehow with the intent to avoid compliance
with the State Procurement Code.33 Defendant asserts that the evidence shows the
circumstances surrounding the MyCG were a result of staff turnover and confusion
that ultimately resulted in miscommunication and scrambled attempts to pay an
overdue invoice to a valued vendor.34
32
Def.’s Mot. for J. Acquittal, at ¶¶55-57.
33
Id. at ¶43.
34
Id. at ¶¶64-71; Trial Tr. June 28, 2022, at 185.
10
Conversely, the State asserts that it provided sufficient evidence to support
Count Three and specifically, the Defendant’s mental state.35 The State contends
that the Defendant intended to violate 29 Del. C. § 6981 (“Section 6981”), which
governs professional service procurement process for contracts that are larger than
the threshold amount.36 The State argues that Defendant clearly sought to avoid
compliance with the State Procurement Code when she inquired about splitting
payments due under the September 2020 MyCG invoice, and then ordered her Chief
of Staff, Thomas Van Horn, to make a PayPal payment to MyCG on a state credit
card.37 And, the State argues that Defendant was aware of but failed to submit an
after-the-fact waiver (“ATF Waiver”) and follow proper accounting procedures.38
The State argues that the Defendant directed payments to MyCG to avoid oversight
and Division of Accounting approval, and therefore, the requisite mental state to
support this Count has been established.39
In response, the Defendant asserts that the splitting of payments, which is
prohibited by the Budget and Accounting Policy Manual (“BAPM”), is not codified
in a criminal statute because the General Assembly never intended to criminalize all
violations of the agency manual.40
35
State’s Resp. at 6-7.
36
29 Del. C. §6981.
37
State’s Resp. at 6.
38
Id.
39
Id.
40
Def.’s Reply at ¶22.
11
For Count Three, the State was required to prove beyond a reasonable doubt
that (1) the Defendant entered into a contract for professional services, (2) the
Defendant willfully fragmented or subdivided the contract, and (3) the Defendant’s
fragmentation or subdivision of the contract was made with the intent to avoid
compliance with the State Procurement Code.41
On May 13, 2022, the Court explained in an Opinion that the State had
adequately alleged this Count but would be required to establish at trial the section
of Chapter 69 that the Defendant had violated.42 The State submits that Defendant
intended to violate Section 6981 of the State Procurement Code which provides that
“[a]ny state contract for which an agency is a party…greater than the threshold
amount…will be subject to the provisions of this subchapter.”43 During the relevant
period, the contract threshold was $50,00044 and there was a $5,000 threshold that
required invoices to be reviewed and approved by the Division of Accounting.45 In
addition, the BAPM advised that invoices could not be split into multiple payments
to avoid review and oversight by the Division of Accounting.46
The procurement statute violation has been a difficult one for the State to
establish as it is the classic example of trying to fit conduct into a statute for which
41
29 Del. C. §6903.
42
State v. McGuiness, 2022 WL 1538488, at *4 (Del. Super. Ct. May 13, 2022).
43
29 Del. C. § 6981.
44
Trial Tr. June 15, 2022 P.M., Case No. 2206000799, at 51.
45
Id. at 77.
46
Id. at 68; State’s Ex. 49 (Ch. 7 of BAPM) at §§7.2, 7.3.1.
12
it was never intended to address. The State’s initial theory in the case was that the
Defendant violated Section 6903(a) when she had manipulated a contract to ensure
that when executed it did not violate the $50,000 threshold to avoid placing it out
for bid, conduct clearly contemplated by that section of the code.
When it became evident there was no splitting of the initial contract into two
or more separate ones, however, the State’s theory mollified into a theory that when
one intentionally breaks invoices down into smaller amounts to avoid the $5,000
review threshold, such conduct would violate Section 6981 and be subject to the
criminal penalties listed in Section 6903(a). The problem with relying upon Section
6981 is that subchapter of Chapter 69 does not criminalize that conduct. While
clearly a violation of the State’s accounting procedures, neither the legislature nor
the Division of Accounting has sought criminal penalties for this violation.
Moreover, it is true that the early monthly invoices were less than $5,000, but
the evidence reflects this was simply due to the limitation the vendor self-imposed
upon herself because she was only recently returning from maternity leave and did
not want to be overworked during this period. There was no evidence that the
invoices were intentionally manipulated to avoid the $5,000 accounting review
procedure and, in fact, two of the invoices toward the end of the contract exceeded
$9,000 and were submitted for payment and approved by the Division of
Accounting. If the State’s theory of intentional manipulation of invoices was
13
correct, clearly these invoices would have been broken up and submitted in an
amount to avoid review. That simply did not occur.
Finally, the evidence clearly established the process for granting relief from
exceeding either the $5,000 invoice approval requirement or the total contract
amount of $50,000 was routine and regularly approved. At trial a mountain of ATF
Waivers was introduced, some exceeding millions of dollars that had not obtained
accounting pre-approval and were regularly granted after the transaction. The Court
has no question that an overage of only a few thousand dollars would have raised no
red flags and been approved without question. As such, the criminalization of the
failure to submit a routine accounting form was never intended by the legislature nor
the Division of Accounting.
After reviewing the evidence, it appears that the MyCG contract was properly
executed between the OAOA and MyCG because it was below the $50,000 threshold
and not subject to the provisions in Section 6981. And the fact that at the end of the
contract, the total amount exceeded the $50,000 threshold amount is irrelevant.
While the Defendant’s conduct is arguably improper pursuant to the relevant
accounting rules, the Court cannot find that any violation of those rules is criminal.
As such, the State has failed to connect the Defendant’s conduct to any wrongdoing
in the Delaware Code.
14
Even if the State had offered a relevant section of the State Procurement Code,
the Court is not satisfied that Defendant’s violation of Count Three has been proven
beyond a reasonable doubt. In fact, it appears that the evidence produced shows no
more than an improper accounting procedure followed by the Defendant’s office,
during a time when there was high staff turnover and delays in employee training
complicated by the COVID-19 pandemic.
The evidence also shows that the Defendant relied on her administrative and
accounting staff to handle the transaction, while admitting that the State Procurement
Code “is not in [her] wheelhouse.”47 It appears that Defendant questioned her
accounting staff about various ways to pay the MyCG invoices that would comply
with relevant accounting principles and relied on her staff to confirm that such
processes could be done. Unfortunately, her Chief of Staff was inexperienced and
while perhaps politically savvy, lacked any degree of reasonable sophistication as to
the inner workings of the State’s accounting procedure. Without the appropriate staff
familiar with the accounting process, the situation here was simply a comedy of
errors and not criminal conduct.
The Court therefore finds that there is insufficient evidence to support a
conviction on Count Three and the Defendant’s Motion for Judgment of Acquittal
on that Count is GRANTED.
47
Def.’s Mot for J. Acquittal at ¶82; Def.’s Ex. 123.
15
c. Count Four – Official Misconduct
Lastly, Defendant argues that Official Misconduct is not a catchall for any
alleged misconduct, and because its fate rests on Counts One and Three, it must also
fail.48 Whereas the State contends that it proved multiple ways that the Defendant
conferred a personal benefit at the Defendant’s request upon a third person.49
Under Delaware law, Official Misconduct requires that (1) the Defendant was
a public servant at the time of the charged offense, (2) the Defendant intended to
obtain a personal benefit, or cause harm to a person; and (3) the Defendant either
committed an act constituting an unauthorized exercise of official functions,
knowing that the act is unauthorized, or the Defendant performed an official function
in a way intended to benefit the Defendant’s own property or financial interests,
under circumstances in which the Defendant’s actions were not reasonably justified
in consideration of the factors which ought to have been taken into account in
performing official functions.50 Obviously the Defendant was a public servant at the
time of this offense and therefore the Court will proceed to review the remaining
two elements of this offense.
The official misconduct statute found in 11 Del. C. § 1211 is intentionally
broad to encompass a wide range of inappropriate conduct by state officials. At its
48
Def.’s Mot. for J. of Acquittal at ¶ 85; Trial Tr. June 28, 2022, at 186.
49
State’s Resp. at 8.
50
Jury Instructions at 15-16; Trial Tr. June 30, 2022, at 121-22.
16
core, the statute prohibits a state official from receiving a personal benefit and in
return either performing an unauthorized act or some act that results in the receipt of
a property or financial benefit to that official.
At trial, it was clear that the Defendant had a different view of the role of the
Auditor’s Office from her predecessor and intended to dramatically increase the
public knowledge and perception of the office. This led to an increased use of social
media, the implementation of special reports regarding the different functions of
state government and leading a regional effort to ensure the appropriate use of
COVID-19 funding.
These efforts raised the prominence of the office and in return the Defendant
personally and were critical to the decisions to hire her daughter who had social
media skills at least beyond those in the office and enter into the contract with
Christie Gross of MyCG.51 Gross’s expertise was creating effective messaging and
communicating those messages to the public and the MyCG contract was intended
to do just that. So clearly the hiring of the Defendant’s daughter and the contract
with MyCG were at least partially intended to directly benefit the Defendant
personally.
51
While the Court has found the jury’s verdict as to Count Three was not supported by the
evidence, the facts surrounding the interaction between MyCG, Christie Gross and the Defendant
can still be considered and are relevant to whether the facts support the Official Misconduct offense
found in Count Four. Count Three is a technical one relating specifically to the procurement
process while Count Four is broader in scope and relates to the relationship between the Defendant,
Daughter and MyCG.
17
The final element is that the Defendant performed official functions in a way
intended to benefit her property or financial interest. While an odd term to use in
the context of Official Misconduct, the Court believes the word “property” was
intended to be broad in scope and would encompass benefits beyond those of a
financial nature. This would include reputation, status, effectiveness, and perhaps
even in the context of an elected official, one’s electability. There is no question
that the efforts made in social media by the Defendant’s daughter as well as the
communication efforts led by Christie Gross were intended, to a significant degree,
to promote the Defendant individually. There was evidence to suggest that the
Defendant clearly wanted to emphasize her position as the State Auditor and it was
her name and not the office that would be prominent in all communications that were
made public. Whether this conduct was reasonably justified in the performance of
her official function was one for the jury to decide. The Court, however, finds the
State has presented sufficient evidence to support this element of the offense and the
jury had a reasonable basis to render a guilty verdict on this count. Based upon the
above, the Defendant’s Motion for Judgment of Acquittal as to Count Four is
DENIED.
18
B. Motion for a New Trial
1. Standard of Review
A motion for a new trial is governed by Superior Court Criminal Rule
33, which provides that such a motion must be made within seven (7) days after
verdict or finding of guilty or within such further time as the court may fix during
the seven-day period.52 A trial court has discretion to grant a new trial if it is required
in the interest of justice.53 A new trial is warranted “only if the error complained of
resulted in actual prejudice or so infringed upon defendant’s fundamental right to a
fair trial as to raise a presumption of prejudice.”54
2. Analysis
The Defendant raises six arguments to support her motion for a new trial as
to Counts One, Three, and Four. 55
a. Defendant alleges Brady violations
First, Defendant asserts that the State failed to uphold its Brady obligations
when it failed to search voluminous discovery and produce it in an easily accessible
manner pursuant to 29 Del. C. § 2508(b).56 Defendant contends that the State’s
52
Super. Ct. Crim. R. 33.
53
Id.; See also State v. Biddle, 2022 WL 102376, at *1 (Del. Super. Ct. Jan. 10, 2022).
54
State v. Ryle, 2015 WL 5004903, at *1 (Del. Super. Ct. Aug. 14, 2015).
55
Def.’s Mot. for New Trial, at p. 1.
56
Id. at ¶18.
19
Brady violation prejudiced her at trial and can only be remedied by the ordering of
a new trial.57
The State argues that it upheld its Brady obligations because the State
diligently searched filtered material for exculpatory and relevant evidence, and did
not suppress but rather provided that evidence to Defendant.58 Moreover, the State
contends that the complained-of discovery contained information that the Defendant
had continuous access to, including her State of Delaware email and State of
Delaware OAOA network.59 The State asserts that the Defendant did not suffer any
prejudice because she was offered, on multiple occasions, extended time to search
the discovery production but declined because she wanted the trial to occur
quickly.60
A Brady violation occurs where there is a “suppression by the prosecution of
evidence favorable to an accused…[that] violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.”61 In order for the State to discharge its responsibility under
Brady, the prosecutor must disclose all relevant information obtained by the police
57
Id. at ¶21.
58
State’s Resp. at 12, 14.
59
Id. at 15.
60
Id. at 15.
61
Wright v. State, 91 A.3d 972, 987 (Del. May 19, 2014)(quoting Brady v. Maryland, 373 U.S.
83, 87 (1963)).
20
or others in the prosecutor’s office to the defense.62 That entails a duty on the part
of the individual prosecutor “to learn of any favorable evidence known to others
acting on the government’s behalf in the case, including the police.”63
The Delaware Supreme Court explained that defendants are “not entitled to a
perfect trial, but…are entitled to a fair one where material exculpatory and
impeachment evidence is disclosed and not suppressed.”64 A Brady violation occurs
where the State fails to disclose material evidence that is favorable to the accused,
because it is either exculpatory or impeaching, causing prejudice to the defendant.65
Exculpatory evidence is any evidence that is “material either to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution.”66
When you cut through the Brady shouting that has occurred nearly every time
the defense received documents from the State, the Defendant’s real complaint here
is that she was not given sufficient time to review large volumes of material provided
to her months before the trial. First, it is important to note that the documents here
are ones that were contained on the Defendant’s laptops in her office. The Court
agrees and has indicated in previous opinions that the State should have cloned the
material from the computer and either returned the copies or the computer itself to
62
Wright, 91 A.3d at 987.
63
Id. (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)).
64
Id. at 977.
65
Id.
66
Id. at 989.
21
the defense. This would have allowed all parties to have timely access to its contents
and to search the material for relevant documents well before trial. Unfortunately,
that did not occur here.
Consequently, while unsatisfactory to the defense, the Court did limit the use
in the State’s case of documents that were produced after March 31, 2022. It also
has on numerous occasions given the Defendant the option to delay the trial until the
fall of 2022 to allow for a more thorough review of the documents provided. The
Court appreciates that other “election” factors were in play, but the decision to move
forward was at the insistence of the defense and not the Court. In addition, due to
the decision to reindict the case in Kent County and to hold the trial in that forum,
there was an additional delay of several weeks before the trial began.
Brady requires disclosure but not a “hand-me-on-a-plate” roadmap to all
documents. There is no suggestion by the defense that they did not have the
documents that were in the possession of the State. The complaint is that they did
not have them timely or in the documents they did receive, the State had not
diligently searched for exculpatory information. Certainly, if the State discovered
exculpatory documents, it is required to produce them to the defense. However, the
Court finds that the State has no obligation to look through hundreds of thousands
of documents, one by one, and decide if a Brady disclosure obligation is warranted
as to that document.
22
For a routine robbery or drug case, it generally is not unreasonable to require
the State to thoroughly review documents and statements to comply with its Brady
obligation. However, in a complex white-collar criminal matter that often involves
hundreds of thousands of documents, such a standard is simply unrealistic,
unmanageable and will lead to endless claims of Brady violations as has occurred
here.
In addition, there is no claim that the State has intentionally withheld
documents or that it has produced a significant volume of documents simply to
overwhelm the defense and to hide documents from their discovery. In fact, it
appears the opposite has occurred. To satisfy the Defendant’s constant claims of a
Brady violation, the State simply produced the discovery documents they had in their
possession and did so in a searchable format. Despite the defense’s contrary claim,
they clearly were able to review the documents by using appropriate search terms
and used many of those documents during trial.
A Brady violation requires that the Court find that documents meeting the
Brady criteria have been suppressed by the State. That has not occurred here. While
the State could have searched and interviewed other casual/seasonal employees or
used different search terms when retrieving documents, the Court does not find that
the State was required to do so. Such conduct may reflect a sloppy investigation by
inexperienced investigators, but not a Brady violation. Several months before trial,
23
the defendant was provided the documents she now claims may have some
exculpatory material therein but never asked for more time to review or search what
had been produced. To complain now that she did not have sufficient time to review
and prepare for trial is simply unreasonable.
The Court also wants to be clear that it is not suggesting that simply because
the defense had the same documents as the State, it had a “due diligence” obligation
to search those documents. Nor would it excuse the State from providing documents
it discovers which are exculpatory. The State may not “hide” exculpatory
documents and then argue the non-disclosure excuse because the Defendant had
access to the file containing the document.
In this case, a large volume of documents was seized from the Defendant’s
computers. With today’s modern technology, the days of going through each
document one-by-one has passed and now logical search terms are used to discover
relevant documents. In a half-a-million documents production, there may be some
exculpatory documents that no one will find as they did not use the correct search
term to gain access. That is not a Brady violation, as the State is unaware that the
document even exists. Some degree of commonsense is required under these
circumstances, and the failure to find documents alone cannot be a Brady violation
as it is impossible to suppress unknown information. And suppression of evidence
by the State is what the Brady rule was created to avoid.
24
What the Court finds particularly disturbing in the Brady assertions found in
the Defendant’s Motion for a New Trial is that the defense has discovered several
additional casual/seasonal employees who were also allowed to continue to work for
payment while attending college. Certainly, the Defendant would have appreciated
that the unique attending college/working situation would call into question the
benefits provided to Daughter that other similarly situated individuals had not been
provided. Since it appears these individuals were unknown to the State and thus not
interviewed, this unique information as to these two other individuals is something
the defense and not the State would be aware of and either counsel was not
discussing this issue with his client, the client was not being candid with counsel or
perhaps the Defendant amazingly had a total lack of awareness of the importance of
this issue.
While certainly significant information, the Court’s assessment of a new trial
request must rely on the evidence presented during the trial and not post-trial
affidavits. It appears only the Defendant was in possession of this critical
information and there is nothing to suggest the State was aware of the situation or
suppressed that evidence. What is even more remarkable is it appears these two
casual/seasonal employees were allowed to work from college in 2021, almost a year
after the Defendant’s daughter was given that same benefit. The Court can only
assume that since the Defendant allowed this conduct by Daughter, she felt it was
25
appropriate to approve the request for these two other individuals. Unfortunately for
the Defendant, consistent bad judgment does not make it right.
Finally, the defense argues that it was error to prevent the Defendant from
obtaining internal prosecution work product and discussions when it was discovered
that prosecutorial decisions had been made by a team of investigators and attorneys
in the Attorney General’s Office. When it was disclosed to the defense that, besides
the lead prosecutor in the case, the Chief Deputy Attorney General was also involved
in assisting with the investigation, the Defendant sought information about his
involvement. While the argument and discussions in this area have been sealed, the
Court will simply indicate that the areas defense counsel wanted to explore were
beyond the preparation of the search warrant and would have spun the case into an
unsubstantiated assertion of political espionage.67 It was clearly not relevant to the
indicted charges and duplication of the investigator’s testimony at best.
The Court finds the Defendant was provided a fair trial, one that she was given
significant latitude to explore all aspects of the investigation and prosecution, and
no Brady violation occurred in this matter.
67
The Court notes that the Defendant advised the Court during the trial that she was not pursuing
a claim for selective prosecution, nor did she assert an allegation of vindictive prosecution.
26
b. Count Five Evidence
The Defendant next argues that inadmissible character evidence regarding the
act of intimidation charge was erroneously admitted by the Court and compromised
the Defendant’s trial.68 In sum, Defendant asserts that any testimony regarding
Count Five that concerned events before June of 2021, when the Defendant allegedly
was aware she was under investigation, is irrelevant and prejudicial.69 Defendant
argues that the Court failed to apply the Getz test and the DeShields factors which
weigh the probative value of the evidence and its prejudicial effects. 70 Defendant
contends that this evidence repeated uncharged misconduct evidence that tainted the
jury’s consideration of all of the charged counts.71
The State argues that the not guilty verdict on the act of intimidation charge
suggests that the jury was able to parse through the evidence objectively and
consistently with the jury instructions and that Defendant’s “prejudicial spillover”
argument is speculative and unsupported by the record.72
The Act of Intimidation charge in Count Five required a showing that (1) the
Defendant’s conduct was intended to prevent a witness from attending or giving
testimony at any proceeding or inquiry authorized by law; (2) the person to whom
68
Def.’s Mot. at ¶¶57-59.
69
Id. at ¶76.
70
Id. at ¶79-80.
71
Id. at ¶¶84-88.
72
State’s Resp. at 16-17.
27
the Defendant’s conduct is directed was a witness; (3) the Defendant acted
knowingly, that is, the Defendant was aware that the person was a witness and aware
that her conduct was intended to prevent or dissuade that person from attending or
giving testimony at any proceeding or other inquiry authorized by law; and (4) the
Defendant acted with malice.73
On May 2, 2022, the Court found that Count Five could not be dismissed
because it was adequately pled in the indictment and articulated that the State must
also prove that the Defendant was aware of the “trial, proceeding or inquiry.”74
Therefore, any evidence that tended to show the Defendant’s awareness of a “trial,
proceeding, or inquiry” was relevant to the determination of Count Five.75
First, the Court finds that the evidence the Defendant now claims was
improper character evidence was relevant and admissible as to the Act of
Intimidation charge set forth in Count Five. From the beginning of the case, the
State has asserted the Defendant was aware she was under investigation well before
the execution of the search warrant. Therefore, it was clearly appropriate and fair to
allow the State to introduce evidence that would support this assertion. As such,
evidence regarding the interaction of employees with the Defendant and her conduct
73
Jury Instructions at 18-19; Trial Tr. June 30, 2022, at 122-24.
74
State v. McGuiness, 2022 WL 1489572, at *3 (May 2, 2022).
75
Del. R. of Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.”).
28
toward them was relevant as to whether they were acts of intimidation intended to
prevent their cooperation with the State investigation. While the jury ultimately
rejected the State’s position and found the Defendant not guilty of this offense, it
does not convert direct evidence of potential intimidation into improper evidence. If
the Defendant had such a concern, she could have requested the Court to sever and
try this matter separately at a later date. The Defendant did not do so and cannot
now complain this evidence somehow has tainted the jury’s verdict and view of the
Defendant.
Further, simply because the Defendant asserts that she first learned of the
investigation in June of 2021 does not mean it is true. The State was allowed to
present evidence during its case of acts that would reasonably reflect a concern by
the Defendant that her conduct was under investigation or at least a concern that her
disgruntled employees were complaining of her conduct.
Interestingly, the counts that the jury did find the Defendant guilty of had no
relationship to the interaction of the Defendant with the witnesses that testified
regarding the intimidation count. Clearly the jury was able to compartmentalize each
offense and the verdict suggests no prejudicial spillover occurred.
The Court also finds the Defendant’s argument that the Court erroneously
failed to conduct a Getz analysis regarding the testimony of these witnesses to be
unpersuasive. The evidence was not introduced to suggest or infer that the
29
Defendant was a bad character but again was evidence directly relevant to the
intimidation charge. Under such a circumstance a Getz analysis would have been
inappropriate.
In spite of defense counsel’s long dissertation concerning errors that the Court
may have committed regarding this evidence, the Court simply finds it unpersuasive
and will not grant a new trial as a result.
c. Theories of Structuring
As the Court has granted the Defendant’s Motion for Judgment of Acquittal
as to Count Three, the Court finds the issues raised in this portion of the Motion for
New Trial to be moot.
d. Court’s Comment
Next, Defendant asserts that the Court unconstitutionally commented on the
credibility of a witness in the purview of the jury.76 The Defendant argues that the
Court improperly conveyed to the jury the Court’s view that false statements made
for the purposes of an “investigation technique” were not “false” statements.77
The State argues that the Court did not make an “unconstitutional” comment
that prejudiced the Defendant but rather prevented Defendant from pursuing a
76
Def.’s Mot. for a New Trial, at ¶¶115-116.
77
Id. at ¶118.
30
fruitless argument on a minor, commonly understood investigative technique that
was not coercive and did not affect the voluntariness of the witness’s statement.78
After defense counsel pressed the Chief Investigating Officer to confirm that
he “lied” while interviewing witnesses during the McGuiness investigation, upon
the State’s objection, the Court ruled that:
If you want to pursue this, we all know what this is. It’s an investigative
technique used by the officer. You want to ask him that, that’s fine. But to
imply that because this is false, he is lying. That’s simply unfair, Mr. Wood.
So you can ask him about investigation techniques if you’d like. But to imply
it otherwise is not acceptable.79
The Court then instructed defense counsel to move on in his line of
questioning.80
“A trial judge has discretion to exercise reasonable control over the mode and
order of the interrogation of witnesses and presenting evidence so as to: (1) make
those procedures effective for determining the truth, (2) avoid wasting time; and (3)
protect witnesses from harassment or undue embarrassment.”81 The Court’s
comment did not undermine the defense’s theory of unfair investigation nor the
questioning of the officer’s tactics, but simply put a stop to a line of questioning that
78
State’s Resp. at 18.
79
Trial Tr. June 29, 2022 A.M., Case No. 2206000799, at 88.
80
Id. at 89.
81
Jones v. State, 940 A.2d 1, 16 (Del. 2007); D.R.E. 611(a).
31
was belabored and the subject of previous cross-examination of the witness by
defense counsel.
While it is not uncommon for a defendant to attempt to blame others when the
outcome of the trial was not as they hoped, the weeks of pounding the idea of a
flawed investigation was so overwhelming and so pronounced it lost its
effectiveness. Reasonable questions regarding the manner in which the investigation
was conducted are fair. But, to consistently call the investigator a liar and to attempt
to mislead the jury as to his conduct, not only once but multiple times, and to now
suggest the Court’s comment would have affected the jury’s decision is nearly
laughable.
The Court is not simply a referee to make calls when requested but has an
obligation and duty to ensure the trial is conducted fairly. The Court in this trial
exercised extreme patience with counsel and provided defense counsel
overwhelming latitude to make his point that this was a sloppy and ineffective
investigation. However, to imply the investigator was intentionally lying when the
failure to be candid with a witness was an investigative technique routinely utilized
in criminal matters crossed the line. A fair trial required the Court to moderate this
conduct and it had no effect on the jury’s decision.
32
Even if the comment was found to be improper, the Court’s jury instructions
allay any potential prejudice caused.82 The Court provided clear instructions for the
jurors, advising that:
You must determine whether the Defendant is guilty or not guilty solely from
the evidence presented during the trial. If your recollection of that evidence
disagrees with anything said, either by counsel [or by the Court], you should
be guided entirely by your own recollection. It is your decision, and only your
decision, to determine the true facts and any inferences from the proven
facts.83
The Court further instructed:
You are the sole judges of the credibility of each witness. You decide the
weight to be given to each witness’s testimony. You should consider each
witness’s means of knowledge, strength of memory and opportunity for
observation, the reasonableness or unreasonableness of the testimony, the
consistency or inconsistency of the testimony, the motivations of the witness,
whether the testimony has been contradicted, the bias, prejudice or interest of
the witness, if any, the manner or demeanor of the witness upon the witness
stand, and all other facts and circumstances shown by the evidence that affect
the credibility of testimony.84
These instructions were sufficient to cure any potential bias or prejudice
inadvertently presented through the Court’s comment.
e. Multiplicity
Next, Defendant moves for a new trial based on multiplicity in violation of
the Double Jeopardy Clause for Counts One, Three, and Four for the same reasons
82
Logue v. Dore, 103 F.3d 1040, 1046-7 (1st Cir. 1997).
83
Trial Tr. June 30, 2022, at 113; Jury Instructions at p. 3.
84
Trial Tr. June 30, 2022, at 127-28; Jury Instruction at p. 25.
33
asserted in her Motion for Judgment of Acquittal.85 The State contends that the
official misconduct charge does not implicate multiplicity because a conviction
required the jury to find elements that were not contained in either Counts One or
Three, and thus, an entirely separate charge.86
The Double Jeopardy Clause of the United States Constitution states that no
“person [shall] be subject for the same offense to be twice put in jeopardy of life or
limb.”87 The Delaware State Constitution similarly mirrors that clause in Article I,
Section 8.88 The Constitutional protection against Double Jeopardy is intended to
protect a defendant from successive prosecutions for the same crime, from multiple
charges under separate statutes requiring proof of the same factual events, and from
multiple charges under the same statute.89
Defendant’s multiplicity argument concerns the second multiplicity
configuration—protection against multiple charges under separate statutes.90 To
determine whether there is a violation, the Court will consider the Blockburger test.
In Blockburger, the United States Supreme Court articulated the same-elements test
to determine whether double jeopardy has been offended when a person is charged
85
Def.’s Mot. for a New Trial, at ¶122-123.
86
State’s Resp. at 11.
87
U.S. Const. amend. V.
88
Del. Const. art. I, § 8.
89
Spencer v. State, 868 A.2d 821, 822-23 (Del. Mar. 1, 2005).
90
Williams v. State, 796 A.2d 1281, 1285 (Del. 2002).
34
with violating two statutes as a result of one act.91 “[T]he question is whether, both
sections being violated by the same act, the accused committed two offenses or only
one” and the standard is “whether each [statutory] provision requires proof of a fact
which the other does not.”92
In this case, Counts One, Three, and Four require the finding of different
elements and therefore do not offend Blockburger or the Defendant’s protection
against Double Jeopardy. The conflict of interest charge focuses on the Defendant’s
review of a matter before the State in which she had a personal or private interest.
As explained, that count focused on the hiring of Daughter and the special benefits
received by Daughter while employed at the OAOA, such as the ability to work
while away at college. And the procurement code violation charge focused on the
Defendant’s tactical accounting procedures in connection with the MyCG contract.
Whereas the official misconduct charge focuses on the Defendant’s own
benefit that resulted from her official acts that were not justified under the
circumstances. Specifically, the benefit received by the Defendant was the personal
promotion from Daughter’s social media posts or the work with MyCG aimed at
raising the profile of the office and Defendant.93 Since Counts One, Three, and Four
91
Blockburger v. U.S., 284 U.S. 299, 304 (1932).
92
Id.93
Trial Tr. June 22, 2022, Case No. 2206000799, at 30, 159-161.
35
require the proof of different facts, multiplicity is not an issue and is not a basis that
warrants a new trial.
f. Cumulative Error
Finally, Defendant contends that all grounds asserted individually may serve
as a basis for a new trial, but the cumulative effect of all of these errors “cinches the
matter.”94 Defendant argues that only a new trial can cure the multiple errors during
the course of this prosecution and trial, resulting in a fundamentally unfair
proceeding.95 The State asserts that there was no cumulative error and that
Defendant received a fair trial that included many evidentiary decisions in her
favor.96
Cumulative error must derive from multiple errors that caused actual
prejudice.97 Here, none of the arguments raised by the Defendant were errors that
caused prejudice, as found above. For that reason and the reasons state above in this
Opinion, the Defendant has failed to establish any cumulative error.
94
Def.’s Mot. for a New Trial, at ¶124.
95
Id. at ¶126.
96
State’s Resp. at 18.
97
Michaels v. State, 970 A.2d 223, 222 (Del. Mar. 17, 2009).
36
III. CONCLUSION
For the foregoing reasons, the Defendant’s Motion for Judgment of Acquittal
is DENIED in part and GRANTED in part and Defendant’s Motion for a New
Trial is DENIED.
IT IS SO ORDERED.
/s/ William C. Carpenter, Jr.
Judge William C. Carpenter, Jr.
37