State v. Wilson ( 2021 )

THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) ID No. 1901009072
)
BRIAN WILSON, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Upon Consideration of Defendant’s Motion for a New Trial or Dismissal,
DENIED.
Mark A. Denney, Jr., Esq. and Michael B. Cooksey, Esq., Deputy Attorneys
General, Department of Justice, Wilmington, Delaware, Attorneys for the State of
Delaware.
Anthony A. Figliola, Jr., Esq., Greto Law, Wilmington, Delaware. Attorney for
Defendant.
RENNIE, J.
I. INTRODUCTION
Defendant, Brian Wilson moves for a New Trial or Dismissal on the basis
that the State allegedly committed a Brady violation surrounding the testimony of
witness, Timothy Keyes.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 21, 2020, following an eight-day jury trial, Defendant, Brian
Wilson (“Defendant”) was found guilty of one count of Murder First Degree, one
count of Conspiracy First Degree, and one count of Criminal Solicitation First
Degree. On March 13, 2020, Defendant was sentenced to the balance of his
natural life at Level V. 1
Timothy Keyes (“Keyes”) was presented as a witness against Defendant at
trial in the Delaware Superior Court. 2 On December 6, 2019, approximately three
weeks prior to the start of Defendant’s trial, Keyes, with his attorney present,
partook in an interview with Sgt. Robert Fox of the Wilmington Police
Department. During this interview, Keyes made statements against the Defendant
as it pertained to Defendant’s upcoming trial. Even though Keyes was called as a
1
D.I. 49. Defendant received the following sentences: (1) Murder First Degree, the balance of
his natural life at Level V; (2) Conspiracy First Degree, five years at Level V, suspended for six
months at Level IV DOC Discretion, followed by one year at Level III; and (3) Criminal
Solicitation First Degree, five years at Level V, suspended for 6 months at Level IV DOC
Discretion, followed by one year at Level III. See id.
2
See generally D.I. 42 [hereinafter “Keyes’ Partial Trial Tr.”].
2
witness for the State, he was uncooperative, which required the State introduced
his out-of-court statement pursuant to 11 Del. C. § 3507.3 During his examination
before the jury, Keyes repeatedly denied receiving a benefit from the State for his
testimony. 4 This was later determined to be misleading, not as it pertained to an
offer from the State, but as to an offer from the Federal Government (“Federal
Offer”). Defendant takes issue with Keyes’ Federal Offer not being presented to
the jury.
On August 8, 2020, Defendant filed a direct appeal to the Delaware Supreme
Court from his conviction and sentencing. 5 On November 6, 2020, the parties filed
a joint motion to stay briefing in the appeal. On December 11, 2020, the Supreme
Court granted the parties’ request to stay and remanded the case to the Superior
Court to determine the Brady issue. 6 On December 14, 2020, in connection with
the Brady issue, Defendant filed a Motion for New Trial or Dismissal. 7 On
January 22, 2021, the State filed its Response in Opposition. 8 On January 29,
2021, Defendant filed his Reply. 9 This matter is ripe for review.
3
D.I. 63 ¶ 13 (citing Defendant’s Exhibit D, at 10) [hereinafter “Def.’s Mot.”]. See 11 Del. C. §
3507.
4
Def.’s Mot. ¶ 10 (citing Defendant’s Exhibit D, at 17-19).
5
D.I. 60.
6
D.I. 61.
7
Def.’s Mot.
8
D.I. 65 [hereinafter “State’s Resp.”].
9
D.I. 64 [hereinafter “Def.’s Reply”].
3
III. PARTIES’ CONTENTIONS
The gravamen of Defendant’s request for a New Trial or Dismissal is that
the State allegedly failed to disclose that witness Keyes was granted pre-sentence
release from federal prison, and that he received sentencing consideration on his
federal charges in return for his testimony against Defendant. Defendant asserts
that this violated the due process protections outlined by the United States
Supreme Court in Brady v. Maryland. 10 In response, the State argues that
presentation of Keyes’ federal charges and Federal Offer, implicates a Brady
consideration, but is not material because it creates no reasonable probability that
the result of Defendant’s trial would have been any different. 11 Further, the State
posits that as soon as it was apprised of this information, it shared it with
Defendant to avoid a Brady violation.
10
373 U.S. 83, 87 (1963) (“[S]uppression by the prosecution of evidence favorable to an accused
upon request 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.”).
11
State’s Resp. at 1.
4
IV. DISCUSSION
In Brady v. Maryland, the U.S. Supreme Court defined the existence of a
Brady violation as the “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.” 12
A Brady violation stems from the State’s failure “to disclose material
evidence that is favorable to the accused, because it is either exculpatory or
impeaching, causing prejudice to the defendant.” 13 To determine whether a Brady
violation has occurred, courts look for the existence of three components: “(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.” 14 To satisfy this burden, “the State ‘must disclose all
relevant information obtained by the police or others in the Attorney General’s
Office to the defense.’” 15 However, the Delaware Supreme Court has notably
12
Wright v. State, 91 A.3d 972, 987 (Del. 2014) (citing Brady, 373 U.S. at 87).
13
State v. Taylor, 2019 WL 6353355, at *3 (Del. Super. Nov. 26, 2019) (citing Wright, 91 A.3d
at 977).
14
Starling v. State, 882 A.2d 747, 756 (Del. 2005) (citing Strickler v. Greene, 527 U.S. 263,
281–82 (1999)).
15
Taylor, 2019 WL 6353355, at *3 (citing Wright, 91 A.3d at 977 (citing Kyles v. Whitley, 514
U.S. 419, 437–38 (1995); Giglio v. United States, 405 U.S. 150, 154 (1972) (citing Restatement
(Second) of Agency § 272 (1958))).
5
stated that “[t]he State’s failure to disclose exculpatory evidence, . . . does not,
alone and without more, constitute a Brady violation” 16
The Superior Court will grant a motion for new trial on the basis of a Brady
violation, “if it finds the information in question to be material in determining
defendant’s guilt, and where failure to provide said information ‘undermined
confidence in the outcome of the trial.’” 17
A. Brady and its Progeny
In Jackson v. State, the Delaware Supreme Court analyzed and applied
Brady and its progeny. The Court held generally that “[t]he suppression of
material evidence violates Brady.” 18 It specifically found that “[e]vidence [that] the
defense can use to impeach a prosecution witness by showing bias or interest . . .
falls within the Brady rule.” 19 The issue of materiality, as applied to Brady, was
expanded in United States v. Bagley, 20 where the United States Supreme Court
held that “favorable evidence is material . . . ‘if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.’ ”21 This definition was further expanded in Kyles v.
16
Starling, 882 A.2d at 756.
17
Id. (citing State v. Scott, 2018 WL 824207, at *1 (Del. Super. Feb. 12, 2018) (citing Atkinson
v. State, 778 A.2d 1058, 1063 (Del. 2001))).
18
Jackson v. State, 770 A.2d 506, 516 (Del. 2001) (emphasis added).
19
Id. at 515 (citing Michael v. State, 529 A.2d 752, 756 (Del. 1987) (citing Giglio v. United
States, 405 U.S. 150 (1972))).
20
473 U.S. 667 (1985).
21
Jackson, 770 A.2d at 516 (citing Kyles v. Whitley, 514 U.S. 419, 433 (1995)).
6
Whitley, 22 where the U.S. Supreme Court held that although a Brady violation is
“triggered” by the existence of potentially favorable but undisclosed evidence, “‘a
showing of materiality does not require demonstration by a preponderance that
disclosure . . . would have resulted ultimately in the defendant’s acquittal,’ but
rather whether in the absence of the undisclosed evidence the defendant received a
fair trial, ‘understood as a trial resulting in a verdict worthy of confidence.’” 23
In assessing these issues, courts look to whether the alleged suppression
“undermines confidence in the outcome of the trial.” 24 Applying these principles,
the Delaware Supreme Court, in Jackson v. State, held that although a Brady
violation occurred, such violation “did not put the case in such a light ‘as to
undermine confidence in the verdict.’”25 This Court arrives at the same conclusion
in regards to the information surrounding Timothy Keyes’ testimony in this case.
B. The Evidence Was Not Suppressed by the State
Defendant argues that the evidence surrounding Keyes’ motivation to testify
against Defendant was not, but should have been, available for the purposes of
impeachment. Defendant contends that if the jury had known about the
circumstances behind Keyes’ testimony, the verdict in this case may have differed.
22
514 U.S. 419 (1995).
23
Jackson, 770 A.2d at 516 (quoting Kyles, 514 U.S. at 434).
24
Id. (citing Kyles, 514 U.S. at 434 (citing Bagley, 473 U.S. at 678)).
25
Id. at 516–17 (citing Kyles, 514 U.S. at 435).
7
The Court first considers the circumstances surrounding Keyes’ testimony
and whether the evidence was suppressed by the State. The State’s interest in
Keyes’ testimony came as a result of other witnesses stating that Keyes was
someone with whom the police should speak. 26 On December 6, 2019, Keyes was
interviewed by Sgt. Fox of the Wilmington Police Department. This interview was
conducted while Keyes had a pending motion in federal court to be released on
bail. 27 Keyes’ motion resulted in a sealed hearing before the U.S. District Court,
where the U.S. District Court reached its pre-sentencing release decision based on
federal cooperation and medical reasons alone. 28 Only after reaching this decision
as to pre-sentence release in connection with Keyes’ cooperation with the federal
case, did the attorneys raise with the federal court the possibility of Keyes offering
testimony in Defendant’s state court trial. 29 At the time, the State was unaware of
these happenings surrounding any arrangements made with Keyes, as it related to
his testimony in Defendant’s trial. 30
After review of the unsealed transcript of the hearing before the U.S. District
Court, it is reasonable to infer that Keyes was motivated to testify for the State
after his conversation with Sgt. Fox. However, this does not speak to how that
26
Keyes’ Partial Trial Tr. at 14:6–13.
27
Id. 17:3–18:23.
28
State’s Exhibit 4, Unsealed Transcript of January 6, 2020 Motion Hearing in U.S. v. Timothy
Keyes, before The Honorable Leonard A. Stark at 26:12-28:6.
29
Id. at 28:9–29:22.
30
State’s Resp. at 3–4.
8
testimony ultimately panned out at trial. As to disclosure, once the State was in
possession of the information concerning potential impeachment evidence, that
material was provided to Defense Counsel. 31 The State provided information
surrounding Keyes’ motivation to testify at Defendant’s trial when it became
available to it. 32 On this basis, the Court finds that the State did not withhold
information, and the evidence at issue was not suppressed.
C. The Evidence Was Not Material and Did Not Create A Probability of
Undermining the Verdict
Keyes’ Federal Offer would generally be considered as impeachment
evidence. Hence, the Court addresses the issues of materiality and probability of
undermining the verdict. In doing so, the Court considers “whether in the absence
of the undisclosed evidence the defendant received a fair trial, ‘understood as a
trial resulting in a verdict worthy of confidence.’” 33 To assess the issue of
materiality, the Court reviews the relevant portions of the record in aggregate.
On October 21, 2020, the United States Attorney’s Office submitted a letter
to the State addressing the “potential impeachment material for Timothy
Keyes[.]” 34 The letter indicates that the federal prosecutor told Keyes that “if he
testifies in Wilson’s state trial, his cooperation would factor into the government’s
31
State’s Resp. at 2
32
See State v. Taylor, 2019 WL 6353355, at *4 (Del. Super. Nov. 26, 2019).
33
Jackson v. State, 770 A.2d 506, 516 (Del. 2001) (quoting Kyles v. Whitley, 514 U.S. 419, 434
(1995)).
34
State’s Exhibit 1 [hereinafter “USAO Letter”].
9
ultimate sentencing recommendation in Keyes’ federal case.”35 According to the
letter, this offer was provided to Keyes prior to his meeting with Sgt. Fox. 36 The
letter also indicated that the State was not present during the offer meeting, but
later became aware of Keyes’ potential testimony, leading to the State calling him
as a witness in Defendant’s case. 37
At first blush, it would seem reasonable that Keyes would be motivated by
the possibility of receiving a federal sentencing benefit in exchange for his
cooperation. However, any benefit that Keyes anticipated would have been
predicated upon his cooperation with the State in Defendant’s state trial. Keyes
did not cooperate and thus, could not have been expected to receive anything in
exchange for his testimony. To the contrary, Keyes’ testimony appeared purposed
at assisting Defendant’s case. 38
35
USAO Letter at 2–3.
36
Id. at 2–3 (“Prior to [the interview with Sgt. Fox] [the Assistant United States Attorney] told
Keyes that if he testified in Wilson’s state trial, his cooperation would factor into the
government’s ultimate sentencing recommendation in Keyes’ federal case.”).
37
Id. at 3 (“[T]he lead prosecutor on [Defendant’s] state trial, was not present during the [offer
meeting with the Assistant United States Attorney], but later became aware of Keyes’ potential
testimony and ultimately called him as a witness – as well as a number of other cooperating
federal defendants – as part of the state’s case.”).
38
It could be argued that Defendant’s motivation to change his story was his fear of retribution
from Defendant’s cohorts. Keyes informed the State that he feared someone “might try to
impress [Defendant] and exact revenge on him for testifying.” Keyes’ Partial Trial Tr. at 4:11–
21.
10
At the outset, Keyes presented as an uncooperative witness. 39 First, Keyes
only appeared for trial by way of trial subpoena and ultimately a warrant. He was
not inclined to appear for court otherwise. In fact, in his testimony before the jury,
Keyes stated: “I don’t want to be involved with this, with this case. It has nothing
to do with me. And as far as the situation where [Defendant’s] here for, I don’t
know anything . . . he never expressed anything to me about this case.” 40 Next,
before taking the witness stand, Keyes told the prosecutors that he planned on
“taking the 5th” and not testifying. 41 At trial, while on the witness stand, Keyes
retracted his prior statements made to Sgt. Fox, thereby forcing the State to offer
his prior testimony under 11 Del. C. § 3507.42 In addition to stating that his prior
statement to Sgt. Fox was based on hearsay, Keyes unequivocally stated, in
response to a question from Defense Counsel, that Defendant never admitted to
hiring anyone to kill the victim in this case. 43 Indeed, Keyes’ testimony was so
antithetical to the State’s interest that in closing arguments, Defense Counsel
encouraged the jury to believe Keyes’ in-court testimony as “truth.” 44
39
Trial Tr. at 59:3–4. Defense Counsel has also acknowledged that Keyes was “a reluctant
witness . . . .” Def.’s Mot. ¶ 13.
40
Keyes’ Partial Trial Tr. at 8:6–9, 9:22–10:5.
41
Id. at 3:1–22.
42
Trial Tr. at 59:3–10.
43
Keyes’ Partial Trial Tr. at 26:1–5.
44
Trial Tr. at 59:3–10 (“And you can support that basically by, first off, Timothy Keyes. He
didn’t want to be up there. Now, he wrote a letter to [Defendant’s] mother and said, I got him,
because he’s going to get up on the witness stand now and tell the truth. He’s not going to rely
on that story he gave to Mr. Fox. He’s going on the witness stand and tell the truth. And the
11
On the other hand, the State was forced to attempt to impeach Keyes with a
letter that he wrote to Defendant’s mother shortly before Keyes was scheduled to
testify for the State. 45 In that correspondence from Keyes to Defendant’s mother,
Keyes indicated that he would help out Defendant at trial. 46 Defense Counsel
presented to the jury, that Keyes did follow through on his letter by telling the
“truth” and not “rely[ing] on that story he gave to Mr. Fox.”47
In sum, Keyes’ testimony, while offered by the State, was not helpful to the
State. And the disclosure that Keyes was offered possible consideration in his
federal sentencing if he cooperated with the State in Defendant’s trial would not
have been so material as to advance Defendant’s case any further, because his
testimony was more favorable to Defendant than to the State. Hence, even in the
absence of the disclosure of the specifics behind Keyes’ potential deal with the
federal government, Defendant received a fair trial resulting in a verdict worthy of
confidence.
truth is, he didn’t know anything. He heard it in prison.”).
45
The letter was obtained by the defense and provided to the State prior to Keyes’ testimony.
46
Trial Tr. at 59:3–10.
47
Id. at 59:3–10.
12
For this reason, the Court finds that Defendant has failed to demonstrate that
“the evidence creates a reasonable probability that, had the evidence been
disclosed . . . the result of the proceeding would have been different.” 48
D. Defendant’s Claim That Keyes Committed Perjury By Not
Disclosing His Federal Offer Is Unavailing
Defendant also argues against the veracity of Keyes’ testimony, and alleges
that Keyes perjured himself when he stated that he was not offered anything in
exchange for his testimony. Defendant asserts that Keyes’ testimony was central
to the case and thus, Defendant was unfairly prejudiced. The record shows
otherwise.
The Court recognizes that Keyes’ statement that he did not receive any offer
in exchange for his testimony was misleading if understood as pertaining to his
federal charges. However, it remains true as it pertains to any offer from the State
in Defendant’s case. The State did not offer Keyes any benefit in exchange for his
testimony. An objective reading of the transcript could lead to the conclusion that
Keyes understood the questions to pertain to an offer from the State, which was
non-existent. However, even if Keyes was deemed to have perjured himself by
intentionally failing to disclose the Federal Offer that was made for his cooperation
in the state case, Defendant was not precluded from effectively impeaching Keyes.
48
Jackson v. State, 770 A.2d 506, 516 (Del. 2001) (quoting Kyles v. Whitley, 514 U.S. 419, 433
(1995)).
13
Even though the information at issue falls under the “impeachment
evidence” category of Brady, Defendant cannot demonstrate that he was unable to
effectively impeach Keyes without the benefit of such information. During cross
examination, Defense Counsel did inquire into Keyes’ motivation for testifying,
but he quickly realized that Keyes’ testimony was helpful to Defendant’s case and
pivoted from that line of questioning. 49 At that point, it would have been unfruitful
to impeach Keyes since his testimony served to benefit Defendant. Instead,
Defendant argued to the jury that Keyes’ in-court testimony was to be believed,
thereby thwarting the benefit to be derived by the State from its cooperating
witness.
Regardless, because Keyes’ reliability, credibility, and motivations were
posed by Defense Counsel to the jury to be believed, this Court is unable to find
that the absence of such impeachment material prejudiced Defendant. Moreover,
even if this Court did find the evidence to be material, the limited potential for
Keyes’ credibility to be impeached did not put the case in such a light as to
undermine the confidence in the verdict. 50
49
Keyes’ Partial Trial Tr. at 17:15–18, 21:14–22:10, 24:18–26:5.
50
See Jackson, 770 A.2d at 516–17 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995))
(finding that even when presented with the “concern that the prosecutors' tactics denied the jury
the opportunity to evaluate fully and fairly [the witness’] credibility, the potential for [his]
credibility to be impeached did not put the case in such a light ‘as to undermine confidence in the
verdict[,]’” where the overwhelming evidence established the defendant’s guilt.).
14
E. The Evidence of Defendant’s Guilty was Overwhelming
Finally, the Court considers whether the failure to disclose Keyes’ Federal
Offer unfairly prejudiced Defendant, in light of the other evidence that was
presented against him at trial. In reaching its conclusion, the jury had available to
it overwhelming, well corroborated, credible evidence in the forms of text
messages, police testimony, and a 9-1-1 call that established that an attempted
robbery of high-stakes dice game occurred on the East Side of Wilmington, just
days before the murder at issue. Multiple sources and witnesses were presented
against Defendant for the purpose of demonstrating his involvement in the alleged
crimes. 51 In his Reply, Defendant does not refute that such evidence exists.
Instead, his argument is premised on the possibility that the jury’s verdict may
have differed if the circumstances surrounding Keyes’ Federal Offer were directly
presented. 52 Defendant fails to rebut or deny that substantial evidence exists, apart
from Keyes’ testimony, that overwhelmingly establishes Defendant’s guilt. For
these reasons, the Court finds that the evidence does not undermine the confidence
in the outcome of the trial.
51
State’s Resp. at 9–11.
52
Defendant’s reliance on Buckham v. State, 185 A.3d 1 (Del. 2018) in support of this argument
is unavailing, as the facts in Buckham are inapposite to the facts in this case.
15
V. CONCLUSION
For the foregoing reasons, Defendant’s Motion for New Trial Or Dismissal
is DENIED.
IT IS SO ORDERED THIS 19th day of March, 2021.
__________________________
Sheldon K. Rennie, Judge
16