State v. Reyes

IN THE SUPREME COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, §
§ No. 52, 2016
Plaintiff Below- §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ ID No. 9904019329
LUIS E. REYES, §
§
Defendant Below- §
Appellee. §
Submitted: November 16, 2016
Decided: January 19, 2017
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and
SEITZ, Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. REVERSED AND REMANDED FOR
SENTENCING.
Elizabeth R. McFarlan, Esquire (Argued), Maria T. Knoll, Esquire, Delaware
Department of Justice, Wilmington, Delaware for Appellant.
Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware for
Appellee.
VAUGHN, Justice:
I. INTRODUCTION
In 2001, Luis E. Reyes was convicted of two counts of Murder in the First
Degree, two counts of Possession of a Firearm During the Commission of a Felony, and
two counts of Conspiracy in the First Degree in what came to be known as the
Rockford Park Murders. After a penalty hearing, he was sentenced to death. This
Court affirmed Reyes’ convictions and sentences on direct appeal.1
On March 25, 2004, Reyes filed a timely motion for postconviction relief. On
January 27, 2016, after a lengthy procedural process, during which the trial judge
retired and the postconviction proceeding was assigned to his successor, the Superior
Court issued an opinion granting Reyes’ motion and vacating his convictions and
sentences.2 The Superior Court found that several errors occurred during the guilt
phase of Reyes’ trial. It found that Reyes’ election not to testify was not a knowing
and intelligent decision; that testimony which Reyes had given in a previous case,
admitted in the State’s case in chief in this case, included inadmissible character
evidence and undermined Reyes’ decision not to testify; that the trial court’s deferral
of co-defendant Luis Cabrera’s sentencing until after Reyes’ trial deprived Reyes of
important exculpatory testimony from Cabrera; that the testimony of a State’s witness,
1
Reyes v. State, 819 A.2d 305, 318 (Del. 2003).
2
State v. Reyes, 2016 WL 358613, at *38 (Del. Super. Ct. Jan. 27, 2016).
2
Roderick Sterling, was unreliable, inadmissible hearsay; and that the State violated
Brady v. Maryland3 by failing to disclose Sterling impeachment evidence. The
Superior Court further broadly found that none of the procedural bars of Superior Court
Criminal Rule 61(i)(1-4) applied to any of these findings because “there was a
miscarriage of justice pursuant to Rule 61(i)(5), [and] . . . reconsideration of otherwise
procedurally barred claims is warranted in the interest of justice pursuant to Rule
61(i)(4).”4
The Superior Court also found that Reyes’ trial attorneys were ineffective for
failing to establish that Sterling’s testimony was based on hearsay; by failing to call
Ivan Galindez as a witness; by failing to request a missing evidence instruction
regarding a document called the Sterling Letter; and by failing to offer into evidence
statements Cabrera made in an interview with one of Reyes’ trial attorneys.
In addition, Reyes contends that his trial attorneys were ineffective in ways not
ruled upon by the Superior Court: in not moving in limine to obtain a ruling that a prior
murder conviction on Reyes’ record was not admissible for impeachment under
Delaware Rule of Evidence (“DRE”) 609(a)(1) if Reyes testified; in not presenting a
thorough and accurate objection to a portion of the above-mentioned Reyes’ prior
3
373 U.S. 83 (1963).
4
Reyes, 2016 WL 358613, at *4.
3
testimony in which Reyes admitted to lying to his girlfriend; in failing to request Brady
material regarding Sterling; and in appellate counsel’s failing to raise the Sterling
hearsay issue on direct appeal.
The State claims that the Superior Court committed error in all of its rulings.
The State also contends that the other ineffective assistance of counsel claims asserted
by Reyes are without merit. We have carefully reviewed each of the issues and
concluded that the State is correct. For the reasons which follow, the Superior Court’s
grant of Reyes’ postconviction motion is reversed.
II. FACTS AND PROCEDURAL HISTORY
The facts as they appear in this Court’s 2003 opinion on direct appeal, with
footnotes omitted, are as follows:
Reyes, and his co-defendant, Luis Cabrera, were
charged with the murders of Vaughn Rowe and Brandon
Saunders. The murders occurred on January 20, 1996. The
defendants were not arrested until 1999. The cases were
severed and the defendants were tried separately. Cabrera
went to trial first and was convicted, as charged, and
sentenced to death.
Early in the morning of January 21, 1996, the bodies
of two teenagers were discovered by a passerby in a
wooded section of Rockford Park in Wilmington. The
bodies of Vaughn Rowe and Brandon Saunders were in a
shallow grave that was covered by a maroon bed sheet.
Rowe and Saunders had, according to expert testimony,
4
been killed about twelve to eighteen hours before their
bodies were discovered.
Both teens had been shot in the back of the head.
Rowe also had internal injuries to his spleen, liver and left
kidney as well as facial lacerations. The additional injuries
suffered by Rowe were consistent with the repeated use of
blunt force. Some of the injuries were inflicted by a belt
buckle.
The police recovered several pieces of evidence at the
scene including bullets, four small bags of marijuana found
in the victim Rowe’s clothes, and a watch Rowe was
wearing that had a memory bank of telephone numbers. The
memory bank listed a telephone number that corresponded
with the residence of Luis Cabrera’s father.
At the victim Saunders’ home, the police also
recovered a business card for “ISS Servicesystem, Inc.”
Handwritten on the card was “434-6154 Big Lou.” Both
Cabrera and Reyes worked at ISS and some people referred
to Cabrera as “Big Louie” and Reyes as “Little Louie.”
In March 1996, the police learned that the bullet,
which killed Vaughn Rowe, came from a 38-caliber gun.
The bullet had certain identifiable markings on it. A year
later, in March 1997, police were investigating the unrelated
murder of a man named Fundador Otero, who was killed in
January 1995. As part of that investigation, the police
conducted two searches at Luis Cabrera’s father’s house.
During that search, they found a 38-caliber pistol and a
single maroon fitted bed sheet. When the 38-caliber pistol
was test fired, the test bullet had markings almost identical
to the bullet found in Vaughn Rowe’s head.
On or about January 20, 1998, the police interviewed
Roderick Sterling, an inmate at Gander Hill prison. Sterling
5
advised the police that he had overheard Reyes having
conversations with Ivan Galindez, who was Sterling’s
cellmate. At the time of those conversations, Reyes was
also incarcerated at the Gander Hill prison, serving a
twelve-year sentence for the Otero murder.
Sterling heard Reyes admit to Galindez his
involvement in the Saunders-Rowe double murder, along
with a man named Luis Cabrera. Sterling testified that he
had overheard Reyes tell Galindez that Rowe and Saunders
had “shorted” Cabrera on a marijuana deal. Sterling also
stated that Reyes said he beat someone with a belt in the
basement of a house at “601 something.” He also heard
Reyes say that a neighbor came down during the beating
because there was so much noise coming from the
basement.
Sterling heard Reyes recount to Galindez how he and
Cabrera decided to take the person they were beating from
the basement to a park. The victim was transported in the
trunk of a black BMW. Reyes and Cabrera then picked up
the second victim so that they could kill both of them at the
same time. Sterling heard Reyes say that once he and
Cabrera picked up the second victim, they went to Canby
Park. Arriving there, they made both of the victims lie on
the softball field and shot them. The bodies were then taken
to Rockford Park and left there.
At the time of the murders, Cabrera and Reyes lived
together at 610 W. 20th Street in a three-story house.
Cabrera and Reyes lived on the second floor. The tenant on
the first floor was Donna Ashwell. Clavel Clamamont and
Maribel Skjefte lived on the third floor.
Following Sterling’s interview, the police located the
female tenants of Reyes’ former apartment building, Donna
Ashwell and Maribel Skjefte. Although they were
6
interviewed two and a half years after the murders, the
women remembered a fight in the basement. Donna
Ashwell remembered that the fight occurred just a day or
two before the two bodies were found in Rockford Park.
The women recalled hearing the voices of Luis Cabrera and
Luis Reyes during the fight. They also heard the voice of a
third person, which they did not recognize.
At trial, both Ashwell and Skjefte testified. Ashwell
recalled that on a Saturday night in January 1996, she heard
what she described as a fight in the basement of her
building. Ashwell also heard an argument. One voice,
which sounded like that of Cabrera, asked another person a
question. After a negative response to the question, Ashwell
heard a metal crashing noise. Ashwell then went to the
basement and banged on the door. Reyes came to the door
and Ashwell said to him, “Take the fight elsewhere or I’ll
call the police.” Reyes asked her not to do that and told her
they would take the fight elsewhere.
Skjefte testified that she went down to the basement
shortly after Ashwell did. She stated that Cabrera answered
the door and told her they were taking care of some
business. Skjefte also heard Reyes’ voice. Shortly
thereafter, Cabrera came into the first floor foyer. He
apologized to the women and said they were leaving.
Several items of physical evidence linked Rowe and
Saunders to Cabrera, albeit indirectly. The first item was a
watch that Rowe was wearing at the time of his death. That
watch had a memory bank of phone numbers, one of which
was for a woman. That telephone number was for the
Wilmington residence of Luis Cabrera’s father, Luis
Cabrera, Sr. The second item of evidence was an ISS
Servicesystem, Inc. business card found at the Saunders
family home. On it was written a telephone number and the
7
words “Big Lou.” Both Cabrera and Reyes worked at ISS
and were known as “Big Louie” and “Little Louie.”
On February 3, 1996, shortly after the murders,
Cabrera returned Saunders’ pager to a Page One store in
Wilmington. The pager was identified as Saunders’ by a
code number inside it. Page One does not generally give
receipts for returned pagers, however, when Cabrera
returned Saunders’ pager, he also bought a new one,
generating a receipt. Cabrera’s name and address appear on
the back of the receipt.
Cabrera’s estranged wife testified for the State at
Reyes’ trial. She stated that they had both worked for a
cleaning service that was located on Silverside Road. The
business card with “Big Lou” on it found in Saunders’
bedroom had a Silverside Road address. Cabrera’s wife
also testified that she had owned a set of bed sheets that
were similar to the single maroon sheet that was found
covering the victim’s bodies. When she separated from
Cabrera, she left the maroon sheets behind for Cabrera.
When police searched Mr. Cabrera Sr.’s house, they found
a maroon sheet on the floor in a pile of laundry. Mr.
Cabrera Sr. said it was his son’s sheet. Both the sheet found
during the search and the one covering the bodies had nearly
identical labels.
Another inmate at the Gander Hill prison, Waymond
Wright, testified Reyes told him that he had gone to school
with Saunders and Rowe. Wright testified that Reyes told
him that after the murder several classmates hugged Reyes.
Commenting on this, Reyes told Wright, “if they only
knew.” Wright also testified that when Reyes admitted to
the murders, he said the victims were “short” on a pound of
marijuana. Wright’s testimony about Reyes’ account of
8
how the murders were committed was similar to the events
attributed to Reyes by Sterling’s testimony.5
After Reyes filed his initial motion for postconviction relief, amended motions
were filed, with the last being filed on October 13, 2009. An evidentiary hearing was
conducted by the trial judge over a period of approximately nine days between May 8,
2012 and April 1, 2013. Depositions were taken and made a part of the record.
Shortly after the conclusion of the evidentiary hearing, the trial judge retired. As
mentioned, the case was then assigned to his successor. Briefing then occurred, and
after briefing was completed, the successor judge requested supplemental briefing
relating to Reyes’ election not to testify, a matter which theretofore had not been an
issue. Supplemental briefing was completed on November 23, 2015 and the Superior
Court then issued its opinion. This appeal by the State followed.
III. STANDARD OF REVIEW
We review a Superior Court judge’s decision to grant postconviction relief for
an abuse of discretion.6 To the extent the parties raise questions of law or
constitutional violations, they will be reviewed de novo.7
5
Reyes, 819 A.2d at 308-10.
6
Ploof v. State, 75 A.3d 840, 851 (Del. 2013); Norcross v. State, 36 A.3d 756, 765 (Del. 2011).
7
Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010).
9
IV. DISCUSSION
Reyes’ Election Not to Testify
The first ground for relief addressed by the Superior Court relates to Reyes’
election not to testify in the guilt phase of his trial. At the conclusion of the defense
case in the guilt phase, the trial judge was informed that Reyes elected not to testify.
The trial judge engaged Reyes in the following colloquy:
Court: Mr. Reyes.
Reyes: Yes.
Court: Do you mind standing Mr. Reyes? Mr.
Reyes, your attorneys have rested your case.
Do you understand that?
Reyes: Yes, sir.
Court: That means that they have finished
presenting any evidence that they wish to
present on your behalf. Have you fully
consulted with them as far as you’re
concerned about the evidence which has
been presented or not presented?
Reyes: Yes, I have.
Court: You’re satisfied with the evidence that has
been presented and/or not presented at this
point?
Reyes: Yes.
Court: Okay. Now, Mr. Reyes, obviously you
chose not to take the witness stand in
connection with the presentation of your
case; correct?
Reyes: Correct.
Court: Do you understand, of course, that you had a
constitutional right to take the witness stand
or not take the witness stand?
10
Reyes: Yes, I do.
Court: And you chose not to take the witness stand?
Reyes: That is correct.
Court: Did you consult with your attorneys about
that decision?
Reyes: Yes, I did.
Court: Do you understand that they can only advise
you, and I’m not asking what their advice is,
but whatever their advice was, it is only
advice; do you understand that?
Reyes: Yes, sir.
Court: And, by that, I mean, do you understand that
the decision to take the witness stand or not
take the witness stand is yours alone and not
your lawyers?
Reyes: Yes, I do.
Court: Was it your decision alone not to take the
witness stand?
Reyes: Yes, it was, altogether.
Court: Were there any threats, promises or other
matters made in connection with that
decision?
Reyes: No, sir.
Court: Do you believe the decision on your part was
a voluntary one?
Reyes: Yes, I do.
Court: Do you believe that you were adequately,
from your perspective, advised about the
choices of taking the witness stand or not
taking the witness stand?
Reyes: Yes, I do.
Court: Do you feel you had sufficient time to talk to
your lawyers about the decision to take – to
not take the witness stand?
Reyes: Yes, sir.
11
Court: Do you wish to consult with them any further
about this decision about not taking the
witness stand?
Reyes: No, sir.
Court: And, are you satisfied in your mind as you
stand there now, having listened to all this
case, including the presentation of your
evidence over the last few days that you
made the correct decision?
Reyes: Yes, I did.
Court: All right.8
Despite this colloquy, the Superior Court in its postconviction opinion ruled that
Reyes’ decision to waive his right to testify was not a knowing and intelligent waiver
of that right. The ruling was based upon a comment which Reyes made during
allocution near the end of the penalty phase of his trial. During allocution, Reyes
stated:
I didn’t get on the stand during trial because I didn’t want
what I was presently incarcerated for to come up. I felt that
by that coming out, you, the jury, would automatically think
I was guilty. Therefore, I chose not to take the stand.9
At the time of his trial, Reyes was serving a sentence for Murder in the Second
Degree and other offenses arising from the 1995 murder of Fundador Otero, a murder
in which Cabrera was also involved. The State presented the Otero murder as an
aggravating factor in the penalty phase. In its postconviction opinion, the Superior
8
App. to Appellant’s Opening Br. at 93-94.
9
Id. at 135.
12
Court interpreted Reyes’ comment during allocution as indicating that he had wanted
to testify during the guilt phase to profess his innocence, but decided not to do so in
order to avoid having the jury hear of the Otero murder in either the guilt or the penalty
phase. Since the commission of a prior murder is something that would be admissible
as an aggravating factor as a matter of course in a penalty phase, the Superior Court
reasoned that Reyes’ decision not to testify at the guilt phase was based on a
misunderstanding and that the decision was therefore not knowing and intelligent.
Specifically, the Superior Court explained its reasoning as follows:
While it appears that Reyes understood the right that he
waived in waiving his right to testify on his own behalf,
Reyes did not understand the consequences of choosing to
forego that right. Reyes’ explanation to the jury during the
sentencing phase of the Reyes Rockford Park Trial that he
wanted to testify to profess his innocence during the guilt
phase, but did not do so to avoid presentation to the jury
about Reyes role in the Otero murder shows that Reyes
expectation was that such evidence would not be admitted
. . . . In making the decision not to testify, Reyes should
have had the opportunity to consider that evidence regarding
his involvement in the Otero murder would be admitted
during the penalty phase as an aggravating factor.10
The State contends that consideration of this issue by the Superior Court in this
postconviction proceeding is barred under then existing Superior Court Criminal Rule
61(i)(4) as formerly adjudicated by the trial judge through his colloquy with Reyes at
10
Reyes, 2016 WL 358613, at *6.
13
trial.11 We agree. It is clear from the transcript of the colloquy that the trial court
determined that Reyes had fully consulted with his attorneys concerning the evidence
which had been presented or not presented on his behalf; that Reyes was satisfied with
the evidence that had been presented; that Reyes understood that he had a
constitutional right to take the witness stand or not take the witness stand; that Reyes
had consulted with his attorneys about his decision not to testify; that Reyes understood
that the decision whether to testify or not was his decision and his decision alone; that
his attorneys’ role was limited to giving him their advice; that the decision whether to
testify was, in fact, being made by Reyes himself; that no one had made any threats or
promises to Reyes on the matter; that the decision was a voluntary one on Reyes’ part;
that Reyes believed the advice he had received from his counsel on the matter was
adequate; that Reyes had sufficient time to talk to his lawyers about the decision; that
Reyes felt no need to talk with his counsel further about the decision; and that Reyes
was satisfied that he was making the correct decision.
The natural conclusion to be drawn from this careful and thorough colloquy is
that the trial court made a determination, an adjudication, that Reyes’ election not to
11
Rule 61(i)(4) read as follows at all times relevant to this case: “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.” Super.
Ct. Crim. R. 61(i)(4) (2004).
14
testify was knowing, intelligent and voluntary. Moreover, it is not at all clear in the
quoted comment from his allocution that Reyes would have taken the stand in the guilt
phase “to profess his innocence”12 if he had known that the Otero murder would be
admitted into evidence at the penalty phase. It appears that he simply gave the jury his
reason why he did not testify in the guilt phase, that is, he did not wish to risk that his
testifying might make the Otero murder, which, like the one in this case, involved both
Cabrera and him, admissible for impeachment or some other purpose at the guilt phase
where the jury would determine his guilt or innocence. Reyes never claimed to be
under any misapprehension concerning his decision not to testify at any part of his trial
through sentencing, his direct appeal, or even in this postconviction proceeding until
the Superior Court raised the issue sua sponte near the conclusion of the proceeding
in that court.
“Generally, the waiver of a constitutional right will be intelligent and voluntary
if the defendant is aware of the right in question and the likely consequences of
deciding to forego that right.”13 The admission of the Otero murder evidence at the
penalty phase was not a consequence of Reyes’ decision not to testify in the guilt
phase. The careful colloquy which the trial judge conducted with Reyes established
12
Reyes, 2016 WL 358613, at *6.
13
Davis v. State, 809 A.2d 565, 569 (Del. 2002).
15
that his election not to testify was a knowing, intelligent and voluntary decision. Since
Reyes’ election not to testify was knowing, intelligent and voluntary, the “interest of
justice” exception in Rule 61(i)(4) is not reached.14 It was error for the Superior Court
to find that Reyes election not to testify was not knowing, intelligent and voluntary.15
Reyes contends that his trial attorneys were ineffective for not moving in limine
to obtain a ruling that Reyes’ Otero conviction was not admissible for impeachment
purposes under DRE 609(a)(1) so that he would have had the benefit of that ruling in
making his decision whether or not to testify. He contends that such a motion would
likely have been granted, and he could then testify with the assurance that the Otero
conviction would not be admitted for impeachment during cross-examination.
To prevail on a claim of ineffective assistance of counsel, the defendant must
satisfy the two-prong standard of Strickland v. Washington.16 This test requires that
he prove that trial counsel's performance was objectively unreasonable and that the
14
The “miscarriage of justice” relief from the Rule 61 bars does not apply to any claim barred by Rule
61(i)(4). Super. Ct. Crim. R. 61(i)(5).
15
We also observe that the Superior Court’s Rule 61 analysis here, as well as in other aspects of its
opinion, was flawed in another way. The Superior Court applied the Rule 61 exceptions broadly to
all of Reyes’ claims, without articulating how each exception applied to each claim. In addition, it
took certain claims that Reyes had framed in his post-evidentiary hearing brief as support for
ineffective assistance of counsel and transformed them into support for a freefloating assertion of
miscarriage of justice at the Reyes trial. Rule 61 analysis should proceed claim-by-claim, as indicated
by the language of the rule. Super. Ct. Crim. R. 61(i)(2) (“Any ground for relief”); id. 61(i)(3) (“Any
ground for relief”); id. 61(i)(4) (“Any ground for relief”); see generally Bradley v. State, 135 A.3d
748 (Del. 2016) (analyzing individual claims for being barred or not barred); Sykes v. State, 2015 WL
417514 (Del. 2015) (same).
16
466 U.S. 668, 686 (1984).
16
defendant was prejudiced as a result.17 Under the first prong, judicial scrutiny is “highly
differential.”18 Courts must ignore the “distorting effects of hindsight” and proceed
with a “strong presumption” that counsel’s conduct was reasonable.19 The Strickland
court explained that “a court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.”20
Under the second prong, “[i]t is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the proceeding.”21 In other
words, “not every error that conceivably could have influenced the outcome
undermines the reliability of the result of the proceeding.”22 “Some errors will have a
pervasive effect . . . , and some will have had an isolated, trivial effect.”23 The movant
must show “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”24 “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”25 The
17
Id. at 688, 694.
18
Id. at 689.
19
Id.
20
Id. at 690.
21
Id. at 693.
22
Id.
23
Id. at 695-96.
24
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 694).
25
Strickland, 466 U.S. at 694.
17
“court must consider the ‘totality of the evidence,’ and ‘must ask if the [movant] has
met the burden of showing that the decision reached would reasonably likely have been
different absent the errors.’”26
We find that Reyes cannot establish that there is a reasonable probability that the
result of his trial would have been different if a motion in limine regarding his prior
conviction had been filed. The manner in which the trial court would have addressed
such a motion involves speculation. A trial court has no obligation to rule upon such
a motion before the defendant testifies. The trial court may have deferred the motion
until the conclusion of Reyes’ direct examination, if he did elect to testify. A trial court
generally has the option “to defer ruling on evidentiary issues until the evidence is
actually offered for admission.”27 “This is particularly true under Rule 609(a)(1) ,
which directs the court to weigh the probative value of a prior conviction against the
prejudicial effect to the defendant. To perform this balancing, the court must know the
precise nature of the defendant’s testimony, which is unknowable” until he actually
testifies.28
26
Swan v. State, 28 A.3d 362, 384 (Del. 2011) (quoting Strickland, 466 U.S. at 695-96).
27
Dawson v. State, 581 A.2d 1078, 1087 (Del. 1990) (quoting United States v. Burkhead, 646 F.2d
1283, 1286 (8th Cir. 1981)).
28
Fennell v. State, 691 A.2d 624, 626 (Del. 1997) (quoting Luce v. U.S., 469 U.S. 38, 41 (1984)).
18
Even if the trial court had granted a motion in limine prior to Reyes’ testimony,
the ruling would have been subject to change as the evidence unfolded. If Reyes had
testified, he would have been subject to vigorous cross-examination concerning his
relationship with Cabrera. Whether he might have given an answer that rendered the
Otero murder admissible for impeachment or another relevant purpose is speculation.
Under these circumstances Reyes has failed to establish prejudice from his trial
attorneys’ failure to file a motion in limine regarding his Otero conviction.
Reyes’ Prior Testimony
The next ground for relief addressed by the Superior Court relates to testimony
which Reyes gave in the State’s case in chief in Cabrera’s earlier trial for the Otero
murder. This prior testimony was presented during the State’s case in chief in the guilt
phase of the trial. The specific testimony at issue is:
Q. Okay. And you don’t recall telling your girlfriend that
or do you recall telling your girlfriend that you were with
Luis and somebody came over to the house and you went
down the basement and beat them up?
A. No. I don’t recall telling her that. Not that moment. I
told her that another time.
Q. Another time?
A. Yes.
Q. When was that?
A. When we was at our house.
Q. So you lied to your girlfriend when you were at your
house?
A. Yes.
19
Q. And when was that?
A. I couldn’t give you an exact date.29
The Superior Court in this postconviction proceeding found that this evidence
was improper and objectionable. Specifically, the Superior Court stated in its opinion:
This was improper and objectionable. Although Reyes Trial
Counsel objected to the reading in of Reyes prior testimony,
the Trial Court permitted Reyes prior testimony to be read
to the jury in Reyes Rockford Park Trial. The Trial Court
simply explained that the testimony was probative and
determined there was no Delaware Rule of Evidence
(“DRE”) 403 issue that prohibited its admission. However,
Reyes former testimony was nevertheless inadmissible
hearsay and undermined Reyes choice to invoke his Fifth
Amendment right not to testify.
* * *
There is nothing in the record to suggest that Reyes Trial
Counsel introduced evidence regarding the character trait for
truthfulness or untruthfulness for Saunders, Rowe, or Reyes.
Further Reyes’ testimony that was introduced was neither
opinion nor reputation evidence as permitted under the
DRE. Instead, it was a specific instance of conduct, which
is inadmissible in the form of extrinsic evidence and can
only be inquired into on cross-examination. Accordingly,
evidence of Reyes’ character trait for truthfulness was
inadmissible because he was not a witness in the Reyes
Rockford Park Trial because he invoked his Fifth
Amendment right, and his character for truthfulness was not
otherwise attacked. Moreover, even if Reyes’ character for
truthfulness was at issue, extrinsic evidence – the reading of
testimony into evidence and introducing it as an exhibit –
29
App. to Appellant’s Opening Br. at 75.
20
was inadmissible under the DRE. Presentation of Reyes’
own testimony from a prior proceeding undermined Reyes’
decision not to testify as a witness against himself.30
The State contends that consideration of this issue by the Superior Court in this
postconviction proceeding is barred by Rule 61(i)(4) as formerly adjudicated.
The record reveals that Reyes’ trial attorneys strongly objected to the admission
of this excerpt from Reyes’ testimony at the Otero trial in its entirety. A lengthy
sidebar took place in which defense counsel argued that the statement was irrelevant
and unfairly prejudicial. They argued that there was nothing in Reyes’ reference to a
beating in the basement that identified such beating to the Rockford Park murders.
Toward the end of the arguments over the admissibility of the statement, defense
counsel specifically objected to the line where Reyes said he lied to his girlfriend:
[Defense Counsel]: So if the Court is now ruling that the
evidence about the fight is going to come in, why do we
need, what’s the point of lines 13 through 17? So you lied
to your girlfriend when you were at her house? Lied about
what?31
The State responded, arguing for the admission of the lines in question as showing that
Reyes was initially unwilling to admit he was involved in a fight in the basement.
Ultimately, the trial court ruled that the lines would be admitted:
30
Reyes, 2016 WL 358613, at *7 (citations omitted).
31
App. to Appellant’s Opening Br. at 73.
21
Unless someone can show something to me otherwise,
considering that the only thing Mr. Reyes says was
something about a beating and did not mention any possible
events thereafter, that’s an inference that a jury can take
from that particular series of questions and answers on page
118, lines13 through 17, that he lied to her by not telling her
the whole thing.32
On his direct appeal, Reyes argued that the first question and answer from his
transcript testimony should have been excluded under DRE Rule 403.33 This Court
rejected that argument.34 On appeal Reyes did not argue against the admissibility of
the balance of the testimony.35
There is no doubt that the admissibility of Reyes’ transcript testimony from the
Otero trial was adjudicated by the trial court. The trial court ruled that all the of
proffered transcript testimony could be read into evidence over the objection of defense
counsel, including the part where Reyes said that he lied to his girl friend.
Reyes contends that his trial counsel exhibited a “lack of vigilance and failure
to properly object,” and failed to state “a properly grounded objection” to the lines
from the transcript in which Reyes said he lied to his girlfriend.36 However, a
32
Id. at 74.
33
Reyes, 819 A.2d at 311.
34
Id. at 311-12.
35
Id.
36
Appellant’s Answering Br. at 35.
22
“defendant is not entitled to have a court re-examine an issue that has been previously
resolved ‘simply because the claim is refined or restated.’”37
Reconsideration of the admissibility of Reyes’ testimony from the Otero trial is
barred by Rule 61(i)(4) as formerly adjudicated, unless Reyes can satisfy Rule
61(i)(4)’s “interest of justice” exception.
The “interest of justice” exception in Rule 61(i)(4) applies when the previous
ruling was “clearly in error or there has been an important change in circumstances, in
particular, the factual basis for the issues previously posed.”38 Here, the trial court was
not clearly wrong and there has been no change in circumstances. Therefore, the
“interest of justice” exception is unavailing to Reyes.
Cabrera’s unavailability as a witness
The next ground for relief addressed by the Superior Court relates to Reyes’ co-
defendant, Luis Cabrera. Cabrera’s trial in the Rockford Park Murders took place
before Reyes’ trial. Cabrera’s trial concluded on February 15, 2001 with his being
convicted of two counts of Murder in the First Degree, two counts of Conspiracy in the
First Degree, and other offenses. The jury recommended death by an 11-1 vote. The
Cabrera trial judge, who was the same trial judge assigned to the Reyes case, deferred
37
Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (quoting Riley v. State, 585 A.2d 719, 721
(Del. 1990), abrogated on other grounds by Morgan v. Illinois, 504 U.S. 719 (1992)).
38
Weedon v. State, 750 A.2d 521, 527 (Del. 2000).
23
Cabrera’s sentencing until after Reyes’ trial. Reyes’ trial ended October 26, 2001.
Cabrera did not testify at Reyes’ trial. Cabrera and Reyes were both sentenced on
March 14, 2002.
The issues relating to Cabrera appear to begin with a letter which Cabrera’s
attorney wrote to Cabrera dated March 6, 2001. There had apparently been some talk
of Cabrera testifying at Reyes’ trial. In his March 6, 2001 letter, however, Cabrera’s
attorney stated, in part:
I agree with your decision. I know that you genuinely wish
to assist Mr. Reyes in his trial, however, I think that any
testimony you give at this point will seriously undermine
your chances of success in your appeal, or during any other
Postconviction action.
Notwithstanding your decision not to testify, [Mr. Reyes
defense attorneys] would like the opportunity to speak with
you so you can focus their efforts in defending Mr. Reyes.
I personally see no downside to this type of communication
. . . Based upon your very clear desire not to testify,
however, I have to insist that [defense counsel] keep this
discussion “off the record..” Essentially this means that
anything you say to them will be used for trial preparation
for the Reyes trial, but you will not be asked to testify as to
any matters given during this conversation.39
The suggested meeting between Cabrera and one of Reyes’ trial attorneys did
take place, with an investigator present. At the meeting, Cabrera stated that Saunders
39
App. to Appellant’s Answering Br. at 1482.
24
and Rowe were murdered by a person named Neil Walker and that Reyes was not
involved. Defense counsel and their investigator made notes of Cabrera’s account of
the murders. Cabrera had also identified Neil Walker as the killer in a statement he
gave to an investigator in 1997.
Next, Cabrera wrote a letter to one of Reyes’ attorneys on September 23, 2001
saying that he had been approached by Reyes’ mother and that he did “want to help,”
but not at the expense of admitting his own guilt.40
Finally, however, on October 9, 2001 Cabrera’s attorney wrote a letter to Reyes’
attorneys which stated, in pertinent part:
I understand my client may have communicated a
willingness and desire to testify on behalf of Mr. Reyes.
Notwithstanding these prior communications, my client
indicated to me that he did not wish to appear as a witness
in the Reyes trial. Moreover, if Mr. Cabrera was called as
a witness in the Reyes trial, he would refuse to testify based
upon his counsel’s advice and based upon his assertion of
his Fifth Amendment privileges.41
By then, Reyes’ trial had already commenced.
40
Id. at 1480.
41
Id. at 1481.
25
On August 29, 2012, at the evidentiary hearing in this postconviction proceeding,
Cabrera was called as a witness. Citing “upcoming hearings of my own,” Cabrera
invoked his Fifth Amendment privilege and refused to answer questions.42
The successor Superior Court judge seems to fault her predecessor for deferring
Cabrera’s sentencing until after Reyes’ trial. The Superior Court states in its
postconviction opinion:
Had Cabrera testified as a witness at the Reyes Rockford
Park Trial, Cabrera may have introduced reasonable doubt
regarding Reyes role in the Rockford Park Murders.
Specifically, Reyes Trial Counsel met with Cabrera in
March 2001 and Cabrera explained to Reyes Trial Counsel
that Reyes was not responsible for the Rockford Park
Murders, but instead that a man named Neil Walker had
committed the murders. Cabrera detailed an altercation that
involved Walker, Cabrera, Saunders, and Rowe that gave a
motive for Walker to commit the Rockford Park Murders.
However, instead of testifying on behalf of Reyes, Cabrera
advised that, if called as a witness in the Reyes Rockford
Park Trial, Cabrera would invoke his Fifth Amendment right
because he had not yet been sentenced. Accordingly, a
critical witness with exculpatory evidence for Reyes was
unavailable because of the Trial Court’s exercise of
discretion as to the timing of Cabrera’s sentencing. The
Trial Court’s delay in sentencing Cabrera rendered Cabrera
unavailable as a witness in the Reyes Rockford Park Trial,
denying access to exculpatory evidence and undermining the
fairness of the trial.43
42
Id. at 1161.
43
Reyes, 2016 WL 358613, at *8.
26
The Superior Court’s reasoning does not identify any legal rule which controls
the discretion of a trial judge in scheduling a sentencing, nor are we aware of one. In
fact, there is nothing in the record to suggest that the trial judge was even aware of the
goings on concerning Cabrera. However, the dispositive point on this issue is that on
October 9, 2001, after Reyes’ trial had begun, Cabrera’s counsel unequivocally
informed Reyes’ attorneys that Cabrera would not testify at Reyes’ trial and, if called,
would exercise his Fifth Amendment privilege not to testify. This statement on the part
of Cabrera’s attorney would seem to be supported by the fact that at the evidentiary
hearing in this proceeding Cabrera did invoke his Fifth Amendment privilege, due to
his “upcoming hearings.”44 The clear weight of the evidence is that Cabrera would
have exercised his right not to testify if called as a witness at Reyes’ trial. There was
no error on the part of the trial court in deferring Cabrera’s sentencing until after
Reyes’ trial so that they could be sentenced together. The Superior Court’s ruling that
delaying Cabrera’s sentencing deprived Reyes of exculpatory evidence and undermined
the fairness of his trial is error.
The Superior Court also ruled that Reyes’ trial counsel were ineffective for not
attempting to introduce at trial the statement they had received from Cabrera in the
interview with him in which he stated that the murders were committed by Neil Walker.
44
App. to Appellant’s Answering Br. at 1161.
27
The court reasoned that Cabrera’s statement was admissible under DRE 804(b)(3).
That rule allows statements against interest made by an unavailable witness to be
admitted under some circumstances. One element for admissibility is that the statement
must be one which “so far tended to subject the declarant to civil or criminal liability
. . . that a reasonable person in the declarant’s position would not have made the
statement unless the declarant believed it to be true.”45 Where the statement is one
“tending to expose the declarant to criminal liability and offered to exculpate the
accused,” the statement is “not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.”46 The extent to which Cabrera’s
statement tended to expose him to criminal liability seems somewhat arguable. To the
extent that Cabrera’s statement did not tend to expose him to criminal liability, it is not
admissible under this rule. To the extent that it did tend to expose him to criminal
liability, it would have been offered “to exculpate the accused,” Reyes.47 Under these
circumstances, Cabrera’s statement was admissible only if “corroborating
circumstances clearly indicate[d] the trustworthiness of the statement.”48 Reyes
contends that there is some independent corroboration of Cabrera’s claim, in that
45
D.R.E. 804(b)(3).
46
Id.
47
Id.
48
Id.
28
Cabrera was charged and indicted for physically assaulting Neil Walker in anger that
Walker had apparently exposed him to suspicion. However, we do not regard this as
corroboration of Cabrera’s statement that Neil Walker was the killer. Cabrera’s
statement was not supported by any corroborating circumstances that clearly indicate
the trustworthiness of the statement. Therefore, Cabrera’s statement to Reyes’ trial
attorneys was inadmissible hearsay. Accordingly, Reyes can not establish prejudice
from his trial counsel’s failure to offer Cabrera’s statement into evidence. It was error
for the Superior Court to find that Reyes’ trial counsel were ineffective for not
attempting to introduce Cabrera’s statement.
Sterling’s Testimony
Roderick Sterling was an important witness against Reyes. As described in the
Statement of Facts, Sterling, an inmate at Gander Hill prison, overheard Reyes admit
to another inmate, Ivan Galindez, that he, Reyes, was involved in the Rockford Park
Murders.
At the time he overheard Reyes speaking with Galindez, Sterling was awaiting
trial on two counts of Unlawful Sexual Intercourse in the First Degree. The victim was
his seven year old niece. In June 1997, he notified his attorney by letter that he had
information about the Rockford Park Murders. On December 1, 1988, Sterling pled
guilty to one count of Unlawful Sexual Intercourse in the Second Degree and was
29
sentenced to twenty years at Level V, suspended after ten years, followed by ten years
of community probation. After Sterling testified at Reyes’ trial, the State joined in a
motion to withdraw his guilty plea to Unlawful Sexual Intercourse in the Second
Degree. The motion was granted. Sterling then pled guilty to Unlawful Sexual
Intercourse in the Third Degree. The State recommended a sentence of ten years at
Level V, suspended immediately, with the expectation that Sterling would be deported
to Jamaica. The recommended sentence was imposed and Sterling was deported. The
Superior Court reasoned that Sterling had received a “huge benefit”
for his testimony.49 It stated that “[t]he benefit offered to Sterling by the State in
exchange for Sterling’s testimony rendered Sterling’s testimony unreliable.”50
Based upon an interview with Sterling conducted by an investigator in 2008 in
Jamaica, Reyes has contended in this postconviction proceeding that Sterling’s
testimony was actually hearsay. Specifically, he contends that Sterling did not overhear
Reyes speaking, and that his testimony was hearsay passed on to him by Galindez. The
Superior Court ruled that Sterling’s testimony violated Reyes’ Sixth Amendment right
to confront witnesses. Specifically, the court stated:
Sterling testified inaccurately at the Reyes Rockford Park
Trial that Sterling overheard a conversation at HRYCI
49
Reyes, 2016 WL 358613, at *9.
50
Id. at *8.
30
between Reyes and Galindez and that, in that conversation,
Reyes admitted to Galindez that Reyes killed Saunders and
Rowe. In other words, when Sterling testified, he claimed
to have personal knowledge regarding Reyes’ alleged
statements. However, in September 2008 when private
investigators interviewed Sterling in Jamaica, Sterling
claimed that he learned details of the Rockford Park
Murders from Galindez and not from Reyes. Reyes had a
Sixth Amendment right to confront the witnesses who
testified against him. Because Sterling testified against
Reyes and not Galindez, Reyes’ Sixth Amendment right was
violated.51
The interview with Sterling in 2008 was conducted as part of defense preparation
during this postconviction proceeding. In the interview, Sterling said that Galindez
gave him some details after Sterling overheard the conversation between Reyes and
Galindez. He stated that his testimony at trial was some of what he overheard Reyes
say and Galindez filled in to give a full explanation. Because of the time which had
passed, Sterling did not remember much of the conversation he overheard in 1997. He
said the detail of the motive for the killings came from Galindez.
After Reyes’ attorneys in the postconviction proceeding received the interview
with Sterling, they moved for an order to take Sterling’s deposition. In an opinion
issued November 13, 2012, the trial judge denied the motion.52 He compared Reyes’
51
Id. at *9.
52
State v. Reyes, 2012 WL 8256131, at *9 (Del. Super. Ct. Nov. 13, 2012).
31
trial testimony and the statement which Reyes had given to the investigator during the
2008 interview. He explained his ruling as follows:
The Court sees an insufficient basis to authorize Sterling’s
deposition. First, he professed lack of memory on some
things eleven years after the date he overheard Reyes speak
to Galindez. Second, while he identified one area–the
motive, which he said Galindez gave some detail, that was
the one identified. There were a series of details he recited
in his 1998 statement and at trial and no basis has been
presented to believe those were not things he actually
overheard. Third, Sterling did not recant his trial testimony
or the 1998 statement. Fourth, a careful reading of the 2008
statement simply makes no compelling case or cause to take
his deposition. No glaring changes or inconsistencies
appear, and he made no statement that what he said at trial
was not truthful.53
Reyes’ attorneys filed a motion for reargument, in which they argued, among
other things, that they should be permitted to take Sterling’s deposition to develop
potential claims, including Due Process violations.54 The trial judge denied the motion
for reargument.
In her opinion granting Reyes’ motion for postconviction relief, the successor
judge made no mention of the trial judge’s ruling.
The State contends that the trial judge’s 2012 ruling formed the law of the case
and that the successor judge should not have reconsidered the issue of Sterling’s
53
Id. at *9.
54
The Ivan Galindez affidavit, discussed hereinafter, was attached to the motion for reargument.
32
testimony. We have recently reiterated that a trial court’s previous decision in a case
will form the law of the case for the issue decided.55 In State v. Wright, we stated:
It is also established that a trial court’s previous decision in
a case will form the law of the case for the issue decided. In
Nationwide Emerging Managers, LLC v. Northpoint
Holdings, LLC, a Superior Court judge dismissed a
plaintiff’s claim that was based on a specific contractual
provision. Subsequently, the judge retired and the case was
assigned to his successor. The plaintiff renewed the claim.
The successor judge rejected the defendant’s contention that
the law of the case doctrine barred reconsideration of the
dismissal, reinstated the claim, and found that the defendant
breached the contractual provision. This court reversed,
reasoning that under the law of the case, the Superior
Court’s legal ruling at an earlier stage of the proceedings
controls later stages of those proceedings, provided the facts
underlying the ruling do not change.56
By denying Reyes’ motion to take Sterling’s deposition and denying the motion
for reargument, in which Reyes argued that Sterling’s testimony was hearsay passed
on from Galindez and that a deposition was necessary to develop potential Due Process
claims, the trial court rejected Reyes’ hearsay and Sixth Amendment challenges. That
ruling forms the law of the case regarding Sterling’s testimony unless the ruling is
“clearly wrong, produced an injustice or should be revisited because of changed
circumstances.”57 The 2012 ruling is not clearly wrong and no circumstances have
55
State v. Wright, 131 A.3d 310, 321 (Del. 2016).
56
Id. (citations omitted).
57
Hoskins v. State, 102 A.3d 724, 729 (Del. 2014).
33
changed since the ruling was issued. Furthermore, whether the benefit offered to
Sterling by the State in exchange for his testimony rendered his testimony unreliable
was for the jury to decide. The successor judge should not have disregarded her
predecessor’s well-reasoned ruling and revisited Reyes’ challenge to Sterling’s
testimony. Her decision to do so was error.
The Superior Court also ruled that Reyes’ trial counsel were ineffective in
connection with Sterling’s testimony. As mentioned, Sterling first surfaced as claiming
to have knowledge of the Rockford Park Murders in a letter which he wrote to his
attorney (“the Sterling letter”). At Reyes’ trial, Sterling said the letter was written by
Galindez but signed by him, Sterling.58 In ruling that Reyes’ trial attorneys were
ineffective in connection with Sterling’s testimony, the Superior Court stated as
follows:
Sterling sent a letter to his counsel (“Sterling Letter”)
claiming that Reyes admitted his role in the Rockford Park
Murders and Sterling testified about the Sterling Letter at
the Reyes Rockford Park Trial. Sterling admitted at the
Reyes Rockford Park Trial Galindez wrote the Sterling
Letter and that Sterling signed it. At the Reyes Rockford
Park Trial, Reyes Trial Counsel objected to Sterling’s
testimony regarding the Sterling Letter on hearsay grounds.
Overruling Reyes Trial Counsel’s objection, the Trial Court
found that even though Galindez and not Sterling wrote the
58
There is some dispute about who actually did the writing of the letter and whether Galindez also
signed it.
34
Sterling Letter, Sterling adopted the contents of the Sterling
Letter and, therefore, testimony regarding the Sterling Letter
was admissible under the DRE.
Although Reyes Trial Counsel properly objected to
Sterling’s testimony about the Sterling letter, Reyes Trial
Counsel did not present an accurate and thorough basis for
the hearsay objection to the Trial Court. Specifically, even
if the Trial Court agreed with the State that Sterling adopted
the statements of Galindez by signing the Sterling letter, the
letter was hearsay. Particularly, Sterling testified at the
Reyes Rockford Park Trial that the information within
Sterling’s letter was learned by Sterling when Sterling
overheard a conversation between Reyes and Galindez.
However, in September 2008 when private investigators
interviewed Sterling in Jamaica, Sterling stated that he
learned details of the Rockford Park Murders from Galindez
directly and not by overhearing a conversation between
Galindez and Reyes. In other words, even though Sterling
claimed at the Reyes Rockford Park Trial that he had
personal knowledge of the Sterling letter, Sterling did not
have personal knowledge. Accordingly, the Sterling letter
was hearsay, but this argument was not presented for the
Trial Court’s consideration. This failure reflected
inadequate trial preparation which was not reasonable
performance under the circumstances especially, where, as
here, Sterling was the only witness to link Reyes to the
Rockford Park Murders.
Moreover, Sterling may have signified adoption of
Galindez’s writing, but adoptive admissions are only
considered non-hearsay as to parties. Neither Galindez nor
Sterling was a party in the Reyes Rockford Park Trial.
Therefore, Reyes Trial Counsel should have presented
argument that the Sterling letter was hearsay if it was to be
offered for the truth of its contents. Reyes Trial Counsel’s
35
failure to make this argument was unreasonable and Reyes
has established the performance prong of Strickland.59
The “Sterling Letter” was not introduced into evidence at trial. The whereabouts
of the original are unknown. The contents of the letter are, however, preserved in a
verbatim recitation thereof contained in a police report. The letter read as follows:
I am writing this letter to inform you of some information
regarding two bodies found at Rockford Park. The victims
were shot, I believe the case is unsolved. Me and my
roommate heard a conversation about that – ... check about
that. Check out the DA to see if we can make deal. That a
visit a letter to notify.60
The letter itself seems to have little probative value.
At trial, Reyes’ trial attorneys did raise a hearsay objection to Sterling’s
testimony when Sterling testified that Galindez wrote the letter and he, Sterling, signed
it. The trial court overruled the objection on the grounds that Sterling adopted its
contents by signing it.
The nature of the framing of the questions posed to Sterling by the prosecutor,
and Sterling’s responses, are illustrated by the following excerpts taken from the
transcript of his testimony:
Prosecutor: Was-during this time period we are talking
about, May, July, on into the fall of 1997, was
59
Reyes, 2016 WL 358613, at *17.
60
App. to Appellee’s Answering Br. at 2383.
36
there ever a time where you heard the
defendant talking about the murder which had
happened at Rockford Park with Ivan
Galindez?
Sterling: Yes, there was.
* * *
Prosecutor: Where you were located, who was there, those
kinds of things.
Sterling: Well, him – he was talking to Ivan Galindez,
and I happened to have been sitting at the
table, in close proximity to where he was
talking.
Prosecutor: Were you participating in this conversation
yourself or were you simply hearing it?
Sterling: I was overhearing it.
* * *
Prosecutor: Do you remember if he told you how it was
that he knew the victims?
Sterling: As I said, he didn’t – he wasn’t talking to me.
He was talking to Galindez. I overheard.
* * *
Prosecutor: What did you overhear the defendant saying
about what happened after the person was
called over to 601 in the basement? What
happened?
Sterling: What I recall is that somewhere along the line,
they got into some type of argument and fight,
and where this guy was being beaten.
Prosecutor: Where did the beating occur, according to
what you heard the defendant say?
Sterling: In the basement of – in the basement.
37
Prosecutor: Did you overhear the defendant talk about
whether there were any weapons involved at
the time, down in the basement of 601?
Sterling: The only thing I recall was a belt.
Prosecutor: What do you recall the defendant saying about
a belt?
Sterling: Well, that he was beating the individual with
the belt.
* * *
Prosecutor: What did you overhear the defendant say about
what happened after they got to the area of
Canby Park near the softball fields?
Sterling: I’m [sic] gone blank. I’m not recalling. I just
recall them – that they drove them into the
park and – up by the softball field which is
where they were killed.
Prosecutor: All right. So they were killed at the softball
fields in Canby Park, right?
Sterling: Yes.
Prosecutor: Where did you get that information from?
Sterling: That’s what I heard.
* * *
Sterling: With Cabrera.
Prosecutor: Did the defendants anything [sic] which you
heard about how it was the victims were shot?
Sterling: I still don’t understand your question.
Prosecutor: All right. Were they standing, sitting, laying
down, in the car, outside those kinds of things?
Sterling: Oh, they were outside, laying down on the
ground.
Prosecutor: When they were shot?
Sterling: Yes.
38
Prosecutor: You heard the defendant say that?
Sterling: Yes.61
These excerpts clearly illustrate that during direct examination Sterling’s
testimony was tightly confined to what he said he overheard Reyes saying. There is
simply no basis in his testimony to justify a conclusion that Reyes’ trial attorneys
should have been more vigorous in asserting a hearsay objection or that appellate
counsel should have raised the Sterling hearsay issue on appeal. Trial counsel’s failure
to assert a more vigorous hearsay objection and appellate counsel’s failure to raise the
issue on appeal were not objectively unreasonable. The Superior Court’s ruling that
Reyes’ trial attorneys were ineffective in not asserting a more vigorous hearsay
objection to Sterling’s testimony is error.
Next, with regard to Sterling, the Superior Court found that the State violated its
Brady obligations by failing to disclose impeachment evidence to the defense which
related to Sterling’s “history of drug and alcohol abuse, convictions, and treatment.”62
Reyes also contends that trial counsel were ineffective for not requesting Brady
material relating to Sterling.
The Brady material which Reyes claims should have been disclosed consists of
the following. In his interview with the police, Sterling said he needed “some . . . a
61
App. to Appellee’s Answering Br. at 133, 134, 137, 138-39.
62
Reyes, 2016 WL 358613, at *10.
39
drug rehab program.”63 When he was sentenced on the charge of Unlawful Sexual
Intercourse in the Second Degree, he made reference in open court to his drug and
alcohol addiction, and his need for a rehabilitation program. The court included in his
sentence a special condition that he undergo a substance abuse and mental health
evaluation. The presentence report prepared in connection with his sentencing also
discussed drug and alcohol abuse.
A defendant seeking to establish a Brady violation must show (1) that the
evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching, (2) that the evidence must have been suppressed by the State,
either willfully or inadvertently, and (3) prejudice must have ensued.64 As to the third
element, the defendant must establish that “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different.”65
The police report appears to contain only a reference to Sterling needing a drug
rehab program. At the evidentiary hearing in this case, Reyes’ trial counsel testified
that he may have gotten a copy of Sterling’s sentencing transcript.66 He also testified
63
App. to Appellee’s Answering Br. at 2383-84.
64
Starling v. State, 882 A.2d 747, 756 (Del. 2005).
65
Id. (quoting Jackson v. State, 770 A.2d 506, 516 (Del. 2001)).
66
App. to Appellant’s Answering Br. at 687, 688.
40
that he believed that he had reviewed Sterling’s presentence report prior to Sterling’s
cross-examination.67
The jury was made well aware that Sterling had been convicted of committing
Unlawful Sexual Intercourse in the Second Degree upon his seven year old niece.68
The jury was also made aware that, in exchange for his testimony, Sterling had an
agreement with the State that would result in the suspension of the balance of a ten year
Level V term and allow for his immediate release and deportation to Jamaica. The jury
was therefore aware that Sterling received a very substantial benefit from the State for
his testimony. On cross-examination, trial counsel also elicited from Sterling that he
had been a drug dealer and had used “weed.”69
Given the significant impeachment evidence which was presented concerning
Sterling’s conviction, the benefit he was receiving from the State in exchange for his
testimony, and his drug dealing and drug use, we think it unlikely that more vigorous
cross examination about drug and alcohol abuse would have led to a different result.
We conclude that Reyes failed to establish prejudice in connection with impeachment
67
Id. at 687.
68
On direct examination at trial, Sterling also admitted that he was convicted of misdemeanor theft
in 1995. App. to Appellee’s Answering Br. at 141. That testimony is consistent with the presentence
report which was prepared in connection with his sentencing on his conviction of Unlawful Sexual
Intercourse in the Second Degree. Id. at 2023. Therefore, there were apparently no more convictions
for cross-examination.
69
App. to Appellant’s Answering Br. at 150.
41
of Sterling. The Superior Court erred in finding a Brady violation. Since we find that
Reyes failed to establish prejudice, it unnecessary to address the first and second
elements of Brady.70 This finding on our part also disposes of Reyes’ claim that trial
counsel was ineffective in not specifically asking for drug and alcohol impeachment
evidence pertaining to Sterling.
Finally, with respect to Sterling, the Superior Court found that Reyes’ trial
counsel were ineffective for not requesting a missing evidence instruction with regard
to the Sterling Letter. Specifically, the Superior Court ruled as follows:
The State never produced the Sterling Letter. Importantly,
Reyes Trial Counsel did not request a missing evidence
instruction for the Sterling Letter. Had Reyes Trial Counsel
requested the instruction, the jury would have received the
standard DeBerry instruction, providing that the jury is to
assume the missing evidence is exculpatory for Reyes[.]
***
Reyes Trial Counsel’s performance fell below an objective
standard of reasonableness and Reyes has established the
performance prong of Strickland71.
70
The State would have had an opportunity to review Sterling’s presentence report in connection
with his sentencing, but under the Superior Court’s policy of confidentiality of presentence reports,
it would not have been proper for the State to make a copy. For this reason, the trial judge refused
to consider the contents of the presentence report at the evidentiary hearing. Since we find that the
defendant cannot show prejudice from the alleged Brady violation, we need not discuss issues
regarding disclosure of the presentence report further.
71
Reyes, 2016 WL 358613, at *18.
42
To determine whether a missing evidence instruction is appropriate, it must first
be determined whether the material “would have been subject to disclosure under
Superior Court Criminal Rule 16 or under Brady v. Maryland.”72 If disclosure was
required, it must next be determined “whether the State had a duty to preserve the
material” and if so, “whether the State breached that duty and what consequences
should flow from that breach.”73 Such consequences are determined by considering the
following three factors: “[(i)] the degree of negligence or bad faith involved; [(ii)] the
importance of the missing evidence considering the probative value and reliability of
secondary or substitute evidence that remains available; and [(iii)] the sufficiency of the
other evidence produced at trial to sustain the conviction.”74 “Where ‘the State does
not act negligently or in bad faith in failing to preserve evidence, and the missing
evidence does not substantially prejudice the defendant’s case,’ a missing evidence
instruction is not necessary.”75
The Superior Court did not consider these factors in reaching its conclusion.
There is no finding, nor, apparently, any evidence of negligence or bad faith on the part
of the State. As mentioned, the contents of the letter did not seem to have significant
72
McCrey v. State, 2008 WL 187947, at *2 (Del. Jan. 3, 2008).
73
Id.
74
Id. (quoting Hammond v. State, 569 A.2d 81, 86 (Del. 1989)).
75
Id. (quoting Wainer v. State, 2005 WL 535010, at *3 (Del. Feb. 15, 2005)).
43
probative value. Although the original of the letter is lost, its contents are known.
Under these circumstances, there is no proper basis for giving a missing evidence
instruction. Therefore, Reyes failed to establish prejudice from the loss of the “Sterling
Letter,” and the Superior Court’s ruling that his trial attorneys were ineffective in not
requesting a missing evidence instruction is error.
Failure to Call Galindez as a Witness
The court below also found that trial counsel was ineffective for failing to call
Ivan Galindez as a witness at trial because Galindez was the only person who could
challenge Sterling’s testimony. Specifically, the Superior Court ruled as follows:
Reyes Trial Counsel was ineffective by failing to call
Galindez as a witness. Only Galindez could have
challenged Sterling’s testimony, which was “the most
significant testimony” against Reyes.
Sterling claimed that Sterling overheard and understood
conversations between Reyes and Galindez. However, if
Galindez had testified, Galindez would have demonstrated
that Sterling’s claim was false because Sterling could not
possibly have understood any conversation between
Galindez and Reyes. At trial, Sterling testified that he did
not speak Spanish and only understood Spanish “a little bit.”
Sterling further testified that he heard the conversation
between Galindez and Reyes in English. However, in a
2012 affidavit, Galindez provided:
[] While I was serving my sentence [at Gander
Hill], I was on the same pod as Luis Reyes. []
Luis Reyes and I talked about a lot of things
44
while we were on the same pod. [] When I
spoke to Luis Reyes, I spoke to him in Spanish
because at the time, I spoke very little English.
[] At the time, my cell [mate] was Roderick
Sterling. [] Roderick Sterling did not speak
Spanish.
Reyes Trial Counsel fell below an objective standard of
reasonableness when they failed to call Galindez as a
witness. It was critical to challenge Sterling’s claim that
Sterling heard Reyes tell Galindez that Reyes participated in
the Rockford Park Murders. Accordingly, Reyes has
established the performance prong of Strickland.76
Galindez was not called as a witness in this postconviction proceeding and was
not subject to cross-examination concerning his affidavit.
At the Cabrera trial where Reyes testified, Reyes stated that he did not
understand much Spanish, but understood it “a little bit.”77 Luz Diaz, Reyes’ aunt,
testified at the evidentiary hearing in this proceeding. Her testimony was that “[W]e
speak English to him. He tried to speak to my mom in Spanish, you know, broken
Spanish. But, you know, he don’t speak very good Spanish. We always kid him.
English please.”78
At the evidentiary hearing, both of Reyes’ trial attorneys testified concerning his
ability to speak Spanish. One trial attorney testified as follows:
76
Reyes, 2016 WL 358613, at *18.
77
App. to Appellant’s Opening Br. at 64.
78
Id at 179.
45
Q. Okay. I believe, and if we need to get the transcripts,
we can do that, that Mr. Sterling testified that he overheard
Mr. Reyes talking to Ivan Galindez –
A. That sounds familiar.
Q. And it was an issue as to whether that was in English or
in Spanish.
A. Okay.
Q. And do you recall that the State presented in rebuttal to
that, the State presented some evidence that Mr. Reyes did
not know Spanish?
A. I do remember that there was some testimony about Mr.
Reyes’ ability to speak Spanish and whether or not he ever
had conversations in Spanish. And my memory is that it
was a bit surprising to me that he didn’t.
Q. Okay. Did you speak to any of Mr. Reyes’ family
members about his ability to speak Spanish?
A. I think we did.
Q. Do you know – do you recall what they told you?
A. Again, my memory is that he was not fluent in Spanish
and probably wasn’t much better than I was at the time.
Q. And did you ever contemplate having Mr. Reyes tested
for his ability to read and understand Spanish?
A. I don’t know whether you’re asking me did we
contemplate that before the trial –
Q. Yes.
46
A. Well, I don’t – I can’t sit here and tell you that I know
that it was going to be an issue before the trial. If you’re
asking me did we ever consider that during the trial, I think
that the information that we got from the family members
was that that test wasn’t going to be helpful.79
Reyes’ other trial attorney testified as follows:
Q. What is your understanding of Mr. Reyes’ ability to
speak Spanish.
A. I believe it’s – he does not speak Spanish very well.
Minimally, I would say. That’s my recollection.
Q. And obviously every time you spoke to him it was in
English; is that correct.
A. Yes.80
The Superior Court did not address any of this admissible evidence, but relied
entirely upon Galindez’s untested affidavit.
The record clearly establishes that at the time of the trial, Reyes’ trial attorneys
reasonably believed that he did not speak Spanish. Reyes’ own testimony from the
Otero trial and the testimony from Reyes’ family at the evidentiary hearing corroborates
the trial attorneys’ reasonable belief. Accordingly, the evidence does not establish that
Reyes’ trial attorneys were objectively unreasonable in not calling Galindez as a
witness. Moreover, calling Galindez, to whom Reyes was alleged to have confessed
79
App. to Appellant’s Answering Br. at 689.
80
Id. at 750.
47
by Sterling, may have been a serious mistake. The Superior Court should not have
disregarded the admissible evidence that Reyes was not fluent in Spanish in favor of
an untested affidavit written eleven years after trial. The Superior Court’s ruling that
Reyes’ trial attorneys were ineffective in not calling Galindez as a witness is error.
IV. CONCLUSION
For the foregoing reasons, the judgment of the Superior Court is reversed.
Reyes’ convictions are reinstated. Under our recent decisions of Rauf v. State81 and
Powell v. State,82 Reyes’ death sentence remains vacated. The matter is remanded to
the Superior Court for resentencing on the two convictions of Murder in the First
Degree. The Superior Court shall impose on each of the murder convictions a sentence
of imprisonment for the remainder of Reyes’ natural life without benefit of probation
or parole or any other reduction.
81
145 A.3d 430 (Del. 2016).
82
2016 WL 7243546 (Del. Dec. 15, 2016).
48