State of Delaware v. Starling.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE )
)
v. ) Cr. ID No. 0104015882
)
CHAUNCEY STARLING, )
)
Defendant. )
)
Upon Defendant’s Motion for Postconviction Relief – DENIED
Submitted: May 30, 2014
Decided: August 28, 2014
James J. Haley, Jr., Esquire, Wilmington, Delaware; Stephen H. Brose, Esquire,
David M. Fragale, Esquire, Jeremy D. Engle, Esquire, Emily B. Nestler, Esquire,
Sarah R. Lamoree, Esquire, of Steptoe & Johnson LLP, Washington, District of
Columbia. Attorneys for Defendant.
Elizabeth R. McFarlan, Esquire, Maria T. Knoll, Esquire, and Karen V. Sullivan,
Esquire, of Delaware Department of Justice, Wilmington, Delaware. Attorneys for
the State of Delaware.
Rocanelli, J.
On March 9, 2001, at 8:30pm, Darnell Evans, an adult, and Damon Gist Jr.,
(“DJ”) a five-year old child, were killed by gunshots at the Made 4 Men
Barbershop (“Barbershop”) on Fourth Street between Market and Shipley Streets
in Wilmington, Delaware. There were numerous other people in the Barbershop.
Several witnesses heard gunshots and saw the shooter. None of the witnesses
identified the shooter by name. Although ballistics testing identified the weapon
used, no gun was ever recovered. No DNA or fingerprint evidence was
recovered.1
According to witnesses, the shooter opened the door of the Barbershop and
shot at Evans. Evans ran to the back of the Barbershop. The shooter followed
him, stood over him, and shot him twice in his head. As a result of five gunshot
wounds to the head, chest, abdomen, and groin, Evans died. Sometime during the
shooting, DJ had been shot in the head and died as a result of this gunshot wound.2
At trial, the State relied heavily upon the testimony of Alfred Gaines who
testified that he, Starling, and Richard Frink were driving around on the day of the
shootings. According to Gaines, when they drove past the Barbershop, Frink saw
Evans. Gaines relayed the following facts: Frink and Starling discussed whether
Evans was “the guy,” but they did not explain what this meant. Frink asked if
1
Senten. Dec. at 5, State v. Starling, No. 0104015882.
2
Id. at 4-5.
1
Starling was going to do anything and Starling testified that he would “put in some
work.” Gaines testified that this meant shooting or fighting someone. Frink
parked the car in the block between Market Street and Shipley Street outside of the
Barbershop. Starling got out and tucked a gun into his pants. Starling was wearing
all dark clothes, including a black hooded sweatshirt. Starling then walked in the
direction of Market Street while Frink and Gaines stayed in the car. Fifteen to
twenty minutes later, Starling returned to the car and said to Frink, “I got him. I
got him. I think I got a little boy, too.”3
At the time of the shooting, Shaylynn Flonnory, Evans’s girlfriend, was
outside the Barbershop and saw someone dressed all in black, holding a gun.
According to Flonnory’s statements before trial, the shooter’s face was covered,
with openings for his eyes. When she testified at trial, Flonnory stated that the
eyes of Defendant, Chauncey Starling, matched those of the gunman she saw
outside the Barbershop. Flonnory also testified that the gunman was wearing a
black hooded sweatshirt.
Gaines also testified to the following facts: Later on the evening of the
shooting, Starling called Gaines at 10:04pm, saying Starling wanted to talk.
Gaines took a taxicab to meet Starling at the home of Vicki Miller, who was
Starling’s girlfriend. Gaines testified that when he met with Starling, Starling
3
Id. at 6-7.
2
looked upset and mentioned shooting the young boy. Then, Starling’s brother,
Michael, entered the room and Starling told Michael that Starling was drunk,
stupid, and sorry for what he had done. Michael later relayed this statement to the
police during an interview.4
In November of 2001, a grand jury indicted Starling and his co-defendant,
Frink. Starling was charged with two counts of murder in the first degree, two
counts of possession of a firearm during the commission of a felony, and one count
of conspiracy in the first degree. The trials were severed.
John S. Malik, Esquire (“Trial Counsel”) represented Starling at trial. On
October 24, 2003, a jury convicted Starling on each count of the indictment. The
jury unanimously agreed on the existence of three statutory aggravating
circumstances 5 and unanimously recommended the death penalty on November 4,
2003. Starling was sentenced to death on June 10, 2004, for the murders of
Darnell Evans and DJ Gist (two death sentences).
In Starling’s direct appeal, the Delaware Supreme Court affirmed Starling’s
convictions, but vacated his death sentences and remanded the case to the Superior
4
Id. at 7-8.
5
11 Del. C. § 4209(e)(1)(i), (k), (s). The aggravating circumstances were: (1) the defendant was
previously convicted of another felony involving the use or threat of violence; (2) the defendant
killed two or more people and the deaths were a probable consequence of such behavior; (3) the
victim was under the age 14 and the defendant is at least four years older than the defendant. Id.
3
Court for resentencing. 6 In the Superior Court on October 2, 2005, Starling was
resentenced to two death sentences. The death sentences were affirmed in a
second appeal to the Delaware Supreme Court. 7
In April 2007, Starling filed three motions for postconviction relief pursuant
to Delaware Superior Court Criminal Rule 61 as a self-represented litigant. Court-
appointed (“Rule 61 Counsel”) filed an Amended Petition for Postconviction
Relief on April 1, 2008. Since the 2008 filing, the parties have submitted
numerous amended petitions and responses and the Court has held numerous
hearings. Most recently, the Court held oral argument on March 28, 2014 to
address the claims of prosecutorial misconduct by Rule 61 Counsel. Supplemental
briefing was completed on May 30, 2014.
Motions for postconviction relief are governed by Superior Court Criminal
Rule 61. As the moving party on a postconviction motion, the defendant bears the
burden of proof. 8 Rule 61 does not establish which burden of proof must govern,
nor has Delaware case law articulated the specific burden. It is clear, however, that
6
Starling v. State, 882 A.2d 747, 760 (Del 2005).
7
Starling v. State, 903 A.2d 758, 767 (Del. 2006).
8
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
4
a petitioner must establish that he has been deprived of a “substantial constitutional
right before he is entitled to any [postconviction] relief.” 9
9
Id.
5
I. STARLING’S CLAIMS OF BRADY VIOLATIONS ARE
PROCEDURALLY BARRED
The Brady rule demands that the prosecution disclose exculpatory evidence
to the defense. 10 Starling claims that the State failed to disclose exculpatory
evidence when the State withheld information that Trial Counsel could have used
to impeach Gaines; information that implicated another person committed the
crimes; and for failing to disclose witness Vicki Miller’s statement. However, a
claim of a Brady violation cannot be made for the first time in a postconviction
proceeding. The Court finds these claims are procedurally barred under Rule
61(i)(3).
Starling’s claims that the State withheld information necessary to impeach Gaines
is procedurally barred under 61(a)(3).
With respect to information to impeach Gaines, the Court finds this claim is
procedurally barred under Rule 61(i)(3). The record reflects that Starling’s claim
of a Brady violation regarding information to impeach Gaines was never presented
at trial or on Starling’s direct appeal. Despite the procedural bar, the Court
addresses this claim on the merits below.
Starling’s claim that the State withheld information regarding other suspects is
procedurally barred under 61(i)(3).
Starling argues that the State did not provide evidence that would tend to
establish that another person committed the crimes. For instance, before the police
10
Brady v. Maryland, 373 U.S. 83, 87 (1963).
6
investigated Starling, the police attempted to question Bruce Stewart for the
shootings and at the scene of the crime; 11 two witnesses told police that Stewart
was the shooter. The State claims it had no evidence that Stewart committed the
murders. Instead, police questioned Stewart’s whereabouts at the scene of the
crime because victim Evans and Stewart had recently been indicted for an
unrelated crime. Police initially theorized that Evans might have been murdered to
prevent him from testifying against Stewart.
The Court finds this claim procedurally barred under Rule 61(i)(3). The
record reflects that Starling’s claim of a Brady violation regarding information that
other people were suspected of the crimes was never presented at trial or on
Starling’s direct appeal.
Starling’s claim that the State withheld information from Vicki Miller is
procedurally barred under Rule 61(i)(3).
Gaines told the police that following the shootings, Gaines, Starling,
Michael Starling, and Vicki Miller all met at Miller’s home. Gaines also stated
that in the presence of those people, Starling admitted to shooting DJ. When the
police attempted to corroborate Starling’s statement with Miller in an interview,
Miller stated that Starling had never made such a comment and the only thing
Starling said was in reference to a news report about the shooting.
11
The Wilmington police even worked with the television show America’s Most Wanted to
attempt to capture Stewart.
7
Starling argues that he was prejudiced without this information because Trial
Counsel was unable to call Miller as a witness to refute Gaines’ story that Starling
said he was sorry in front of Gaines, Michael, and Miller about shooting the little
boy. Starling asserts that this was particularly prejudicial because the jury also
repeatedly heard the police say that Miller corroborated Starling’s story when the
State played Michael Starling’s interview with the police.
Starling notes that Trial Counsel’s motion for a new trial based on this
allegedly withheld information was denied and Starling appealed the issue to the
Delaware Supreme Court.12 Starling argues, however, that this claim is not barred
because the portion of the statement being raised here is distinct from the issue
previously addressed. Starling contends that the Court only ruled on Miller’s
statement that she could not recall whether Starling was at her home on the night of
the shootings and did not consider Miller’s statement about Starling merely saying
that the person should be caught.
The State counters that Trial Counsel knew of the entirety of Miller’s
statement and thus there was no Brady violation. Miller was not an unknown
witness to Starling, but instead she was Starling’s girlfriend and was available as a
12
Starling, 882 A.2d at 756.
8
witness.13 Trial Counsel admitted to the Court that he had an opportunity to
interview Miller before trial and thus the State asserts that there is no Brady
violation when the Defense had equal access to Miller. 14 Moreover, the State
argues that even if this issue was not addressed by the trial court, it is procedurally
barred because Starling did not raise it on direct appeal.
With respect to Miller’s statement, the Court finds this claim procedurally
barred under Rule 61(i)(3). The Court is satisfied that Miller’s statement in
contention here is distinct from Miller’s statement previously litigated such that
Starling’s claim is not barred under Rule 61(i)(4). 15 However, this claim is
procedurally barred under Rule 61(i)(3) because the record reflects that it was
never presented at trial or on Starling’s direct appeal. Moreover, Starling’s
argument that Trial Counsel could not call Miller as a witness is without merit.
Miller, Starling’s girlfriend, was an available witness and Trial Counsel had the
opportunity to interview her before trial. Accordingly, Starling has failed to meet
his burden of establishing prejudice, the third requirement of a valid Brady
violation claim.
13
State v. Starling, I.D. No. 0104015882, Mem. Op. at 22, Herlihy, J. (Del. Super. Apr. 26,
2004).
14
Id.
15
Super. Ct. Crim. R. 61(i)(4) provides a procedural bar for any claim that was previously
adjudicated at trial, on appeal, in a postconviction proceeding, or in a federal habeas corpus
proceeding.
9
II. THE STATE DID NOT VIOLATE BRADY WITH RESPECT TO
GAINES AS A TRIAL WITNESS
The Delaware Supreme Court has held that a defendant must satisfy three
elements to establish a Brady violation: (1) the evidence in contention must be
favorable to the defense, “either because it is exculpatory, or because it is
impeaching;” (2) the State must have suppressed such evidence either
inadvertently or willfully; and (3) prejudice must have resulted from the
suppression of the evidence.16 Under the third prong, the State’s duty to disclose is
only applicable where the evidence is relevant to the defendant’s guilt or
punishment. 17
For Brady purposes, evidence is relevant if it tends to prove someone else
committed the crime or someone else had equal motive to commit the crime. 18 In
order to reverse a conviction based on a Brady violation, the petitioner must “show
that the favorable evidence could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.” 19 Therefore, a Brady
violation cannot serve as the basis to overturn a conviction where “the untainted
16
Atkinson v. State, 778 A.2d 1058, 1063 (Del. 2001).
17
State v. Comer, 2007 WL 313574, at *4 (Del. Super. Feb. 2, 2007).
18
Id.
19
Jackson v. State, 770 A.2d 506, 516 (Del. 2001) (quoting Kyles v. Whitley, 514 U.S. 415, 455
(1995)).
10
evidence of guilt [is] overwhelming.” 20 Moreover, as noted above, these claims are
procedurally barred unless Starling can demonstrate: (1) “cause for relief from the
procedural default” and (2) “prejudice from violation of the movant's rights.”21 In
the absence of any such evidence, the Court concludes that this claim is without
merit. 22
Any evidence that may be used to impeach a prosecution witness must be
disclosed under the Brady rule.23 The Delaware Supreme Court has held that “the
dropping of a charge against a state’s witness is clearly relevant to the issue of
bias” and “falls within the Brady rule.” 24 The Delaware Supreme Court has also
noted: “Whenever the State reduces any pending charges (related or not) or makes
any arrangement with any State witness, disclosure is mandatory.” 25
Starling asserts that the State failed to provide various pieces of information in
violation of the Brady rule.
First, Starling alleges the State did not reveal to Trial Counsel the role the
Delaware Department of Justice (“DDOJ”) played in the discharge of Gaines’
20
Michael v. State, 529 A.2d 752, 757 (Del. 1987); Jackson, 770 A.2d at 512 (holding that there
was untainted evidence of guilt where there was a shoe print analysis, handwriting and
fingerprint analysis, and the defendant’s letter admitting guilt).
21
Super. Ct. Crim. R. 61(i)(3)(A)-(B).
22
Compare Hainey, 945 A.2d at 1167 (Del. 2008) (holding that where defendant failed to raise a
prosecutorial misconduct claim at trial or on direct appeal it was procedurally barred).
23
Jackson, 770 A.2d at 515; Michael, 529 A.2d at 756 (citing Giglio v. United States, 405 U.S.
150 (1972)).
24
Michael, 529 A.2d 752, 756 (Del. 1987) (citing Van Arsdall v. State, 524 A.2d 3 (Del. 1987)).
25
Id.
11
Delaware probation. The Barbershop shootings occurred on March 9, 2001. On
April 7, 2001, Starling shot Gaines in Chester, Pennsylvania. Starling asserted
self-defense in connection with this shooting. Gaines was found with a bag of
crack cocaine in his possession and was on probation at the time in Delaware for a
prior misdemeanor assault charge. Following the discovery of cocaine, Gaines’
probation officer recommended that probation be revoked and Gaines be
sanctioned.
On October 17, 2001 Gaines’ violation of probation was dismissed and his
capias was withdrawn. According to the State, there was no deal between the State
and Gaines. The Court accepts the representations of the prosecutors who
emphatically disclaimed that there was any deal with Gaines and stated firmly that
no promises had been made to Gaines in exchange for his testimony. Gaines was
never extradited back to Delaware, but instead was released from the custody of
Pennsylvania. Gaines was not required to come to Delaware because of safety
concerns related to Starling’s shooting of Gaines.
Starling argues that Gaines was a biased witness and that Trial Counsel did
not have the opportunity to fully disclose Gaines’ bias to the jury. According to
Starling, Gaines received a benefit for testifying against Starling. Had the State
provided this information, Starling asserts, Trial Counsel would have been able to
impeach Gaines, who was the State’s key witness.
12
Nevertheless, disclosure was not mandated because Trial Counsel knew that
Gaines had been on probation at the time that Starling shot Gaines and also knew
that Gaines’ probation had been discharged. Trial Counsel had conducted his own
research into Gaines’ criminal and probation history. Also, the timing of Gaines’
discharge from probation strongly suggests there was no relationship between that
and Gaines’ testimony. Specifically, the probation was discharged in October
2001 and the trial occurred two years later, in October 2003. Furthermore, the
probation was for a misdemeanor assault conviction and it would have been highly
unusual for such a probation term to be extended for several years during the
pendency of an unrelated trial.
Most importantly, it would have been highly prejudicial to allow the jury to
consider the events related to the circumstances of the alleged probation violation.
The cocaine found by police was discovered in Gaines’ possession after Gaines
was shot by Starling. Indeed, any disclosure at Starling’s trial for two other
gunshot murders would have harmed Starling’s capital case. There was no
prejudice to Starling by failing to reveal this information to the jury. To the
contrary, Trial Counsel properly avoided making this presentation to the jury
which would have implicated Starling in another shooting. Indeed, Trial Counsel
and the State agreed not to mention the Chester shooting, which led to Gaines’
violation of probation because if the Chester shooting was mentioned at trial, then
13
Starling’s involvement in the Chester shootings would also have been mentioned.
Therefore, Trial Counsel not only was aware of the discharge of the violation of
probation, but specifically chose as a part of Trial Counsel’s strategy not to
question Gaines about the violation or the Chester shooting. This was sound trial
strategy.
Further, even if this Brady claim was not procedurally barred, Starling has
failed to demonstrate prejudice that would put the “whole case in such a different
light as to undermine confidence in the verdict.” 26 Impeaching Gaines on bias
grounds may not have been helpful or important for Starling’s case to demonstrate
that Gaines was acting in self-interest when he chose to testify. Moreover, Trial
Counsel’s cross-examination of Gaines required a delicate balancing. Finally,
Gaines was released from probation two years before trial occurred, which was for
Gaines’ safety, not in exchange for his testimony at trial, which was two years
later.
Given the very serious nature of the allegations by Rule 61 Counsel and the
statements made in briefing related to allegations of prosecutorial misconduct
related to Gaines’ testimony, the Court scheduled an additional hearing and
granted the opportunity for supplemental briefing so that Rule 61 Counsel might
provide record support for the contention that the DDOJ played a role in the
26
Jackson, 770 A.2d at 516.
14
probation discharge for Gaines, and also failed to disclose their role to Trial
Counsel. Despite these opportunities to supplement the record for the Court’s
consideration, Rule 61 Counsel has not provided any record support for these very
serious allegations of prosecutorial misconduct. The Court concludes that the
DDOJ did not play any role in the discharge of Gaines’ probation. Moreover, the
Court concludes that the prejudicial effect of revealing this information to the jury
substantially outweighed any benefit Starling might have received by impeaching
Gaines. Finally, it would have been entirely inconsistent with Trial Counsel’s
sound trial strategy to discuss the shooting of Gaines by Starling in Chester,
Pennsylvania. Therefore, even assuming arguendo that the claims are not
procedurally barred, there was no violation of Brady.
III. STARLING’S CLAIMS OF INEFFECTIVE ASSISTANCE OF
COUNSEL
Ineffective assistance of counsel may arise during the trial phase and/or
during the sentencing phase. There is a two-pronged test to establish ineffective
assistance of counsel. 27 First, the movant must show, by a preponderance of the
evidence, that counsel’s representation fell below an objective standard of
reasonableness.28 When evaluating the conduct of counsel, there is “a strong
27
Strickland v. Washington, 466 U.S. 668, 687 (1984); Wright v. State, 671 A.2d 1353, 1356
(Del. 1996).
28
Strickland, 466 U.S. at 687-88; Wright, 671 A.2d at 1356.
15
presumption that [counsel’s conduct] was professionally reasonable.” 29 Mere
allegations will not suffice to prove ineffective assistance of counsel. Instead, a
defendant must make concrete allegations of ineffective assistance of counsel and
substantiate them. 30 Second, the movant must establish that there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different.31 A reasonable probability is a probability sufficient to undermine
confidence in the outcome. 32 When a death sentence is challenged, the question is
“whether there is a reasonable probability that, absent the errors, the sentence
[including an appellate court, to the extent it independently reweighs the evidence]
would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” 33
A. Trial Counsel’s Pretrial Representation Was Effective
Starling claims ineffective assistance related to Trial Counsel’s
representation during the discovery phase. Specifically, Starling argues that Trial
Counsel was ineffective with respect to Trial Counsel’s failure to seek pre-trial
discovery of taxicab records and phone records from the night of the shooting. The
29
Gattis v. State, 697 A.2d 1174, 1178 (Del. 1997); Flamer v. State, 585 A.2d 736, 753 (Del.
1990); Delaware v. Miller, 2013 WL 4135019, at *2 (Del. Super. July 25, 2013).
30
See Younger, 580 A.2d at 556.
31
Strickland, 466 U.S. at 694; Wright, 671 A.2d at 1356.
32
Strickland, 466 U.S. at 694.
33
State v. Sykes, 2014 WL 619503, at *13 (Del. Super. Jan 21, 2014) (citing Strickland, 466 U.S.
at 695).
16
State contends that Trial Counsel’s actions were objectively reasonable and that
Starling was not prejudiced by Trial Counsel’s failure to obtain this evidence.
When counsel fails to investigate facts, the determination of prejudice will depend
on whether the expected evidence would have changed the outcome of the trial.34
After the shooting, Gaines testified that he took a taxi from his mother’s
home to Miller’s home to speak with Starling. Gaines testified that Starling said,
“God was going to forgive [Starling] for killing the little boy.” 35 There was no
corroborating evidence that Gaines took a taxicab to Miller’s home as Gaines had
asserted. Starling argues that Trial Counsel was ineffective for failing to issue a
subpoena to the taxi company for its records and failing to interview any taxi
drivers to challenge Gaines’ testimony. The State argues that Starling cannot
demonstrate prejudice from Trial Counsel’s failure to subpoena taxi records.
Particularly, the State notes that a detective called the taxi company and was told
that cash customer logs are routinely destroyed after seven to ten days.
Accordingly, Starling could not have been prejudiced because the information was
not available.
Starling has not demonstrated ineffective assistance of counsel with respect
to the discovery of the taxicab records. Starling has not established that Trial
34
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
35
Def. Amend. Mot. for Postconviction Relief at 29.
17
Counsel’s failure to subpoena taxicab records fell below an objective standard of
reasonableness.36 Because the records did not physically exist, it was not
unreasonable to refrain from requesting records where such. Moreover, the
availability of this information would not have changed the outcome of the trial.
Next, Starling argues that Trial Counsel was ineffective during the pretrial
phase because certain phone records would have yielded exculpatory evidence.
Trial Counsel originally filed a motion to compel Frink’s phone records, but the
motion was withdrawn by Trial Counsel. The only phone records that the State
produced prior to trial were Starling’s cell phone records for March 2001. 37 Rule
61 Counsel eventually received the cell phone records of Frink after the Court’s
ruling on Starling’s motion for postconviction discovery. 38 Starling argues that
this new information can establish that Starling answered Frink’s phone calls
during the time of the shootings, which would be inconsistent with someone
actively engaged in committing murder.
The State argues that it provided Starling with relevant telephone records
pre-trial and that the newly produced records do not establish that Starling
answered his phone during the time of the shootings. Moreover, the State asserts
36
Strickland, 466 U.S. at 687-88.
37
When Trial Counsel requested all phone records in the State’s possession or control, the State
asserted it was only obligated to produce evidence it intended to use at trial. The Defense argues
that in refusing to produce discoverable materials, the State also violated the Rules of Criminal
Procedure. See Super. Ct. Crim. R. 16 (a)(1)(C).
38
See State v. Starling, 2010 WL 2861824 (Del. Super. July 20, 2010).
18
that, even if the Defense could show that Starling answered his phone, it does not
show that Starling did not commit the shootings.
With respect to the phone records, Starling has not established that Trial
Counsel’s withdrawal of the motion to compel discovery fell below an objective
standard of reasonableness.39 Evidence that Starling answered his cell phone very
shortly after the time of the shootings does not establish that Starling did not also
commit the shootings and are therefore not dispositive of whether Starling
committed the crimes. The availability of additional phone records would not have
changed the outcome of the trial.
B. Trial Counsel’s Trial Strategy Was Effective
Counsel’s strategic choices are presumed reasonable and “a court must
indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.”40 Effective assistance of counsel may be
provided in various ways and counsel’s obligation is to “make the adversarial
testing process work in the particular case.” 41 To overcome the presumption that
counsel’s actions were sound trial strategy, the petitioner must establish that: (1)
39
Strickland, 466 U.S. at 687-88.
40
Strickland, 466 U.S. at 689.
41
Id. at 690.
19
the strategy, even if sound, did not in fact motivate counsel; or (2) the strategy
could never be considered sound.42
A Change of Venue for Starling’s Trial Was Not Required
Starling asserts that Trial Counsel was ineffective when he did not request a
change of venue. Starling argues that Starling’s jury could not be impartial as a
result of the pre-trial publicity surrounding the case. Starling contends that the pre-
trial publicity created a reasonable likelihood of prejudice requiring a change in
venue. The State argues that trial counsel’s choice not to seek a change of venue
was reasonable because the media attention had dwindled by the time of the trial,
which was more than two years after the shootings. Also, the State emphasizes
that a large pool of jurors were interviewed and screened. The State contends that
Starling was not prejudiced by the publicity.
Criminal defendants are guaranteed a trial by an impartial jury by the Sixth
Amendment of the United States Constitution and Article I, Section 7 of the
Delaware Constitution. 43 A change of venue may be provided when a criminal
defendant shows there is a reasonable likelihood of prejudice against the
defendant.44 In Delaware, a motion for change of venue will generally not be
42
Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005).
43
U.S. Const. amend. VI; Del. Const. art. I, § 7.
44
Super. Ct. Crim. R. 21(a).
20
granted unless the evidence of prejudice against the defendant is so substantial
“that the defendant cannot obtain a fair and impartial trial” in the county where he
has been charged.45 Routine publicity does not warrant a change in venue46 and
defendant must show publicity that is “highly inflammatory or sensational” or that
actually caused prejudice. 47
With respect to the challenge to venue, Starling has not established
ineffective assistance of counsel. Starling has not shown that Trial Counsel’s
failure to request a change of venue fell below an objective standard of
reasonableness or that Starling was prejudiced because of this alleged failure. Two
hundred jurors were summoned and interviewed, and many were eliminated due to
personal or media contacts with the case. Starling’s jury was properly polled and
Starling’s voir dire process screened the jury pool for pre-existing prejudice.
Trial Counsel was effective in not objecting to Flonnory’s in-court identification of
Starling when Trial Counsel had the opportunity to cross-examine Flonnory on
that issue
Starling argues that Flonnory’s in-court identification of Starling as the
shooter was impermissibly suggestive because there was no doubt that Flonnory
understood that Starling was the defendant. Starling asserts that when Trial
Counsel failed to suppress or object to the identification at trial, Trial Counsel was
45
Id.; see also State v. Cook, 910 A.2d 279, 283 (Del. Super. 2006).
46
Cook, 910 A.2d at 283.
47
Id.
21
ineffective because there was ample opportunity for Trial Counsel to object prior
to when Flonnory made the identification and there was no reasonable trial strategy
for Trial Counsel’s failure to object. Flonnory had not mentioned the shooter’s
eyes prior to trial and Trial Counsel expressed that he did not object out of surprise
of the testimony and he simply did not think to do so. 48
The State argues that although Trial Counsel was surprised by Flonnory’s
identification, Trial Counsel had the opportunity to cross-examine Flonnory in
order to mitigate any damage and elicit other weaknesses in the identification.49
The State asserts that it was sound trial strategy for Trial Counsel address the
identification with Flonnory during cross-examination. According to Starling,
cross-examination of Flonnory was not a substitute for the identification that had
already been made, especially where Flonnory was the only witness
identification.50
48
Malik 1/9/13 Tr. At 109:5-8 (testifying that it was a “legitimate point” but “I didn’t think of it
at the time. And I suppose I could have renewed that application, but I didn’t think of it at the
time.”).
49
For instance, Flonnory admitted: she had not mentioned the shooter’s eyes to the police after
the shootings, she could not articulate any unique distinctions in the shooter’s eyes that prompted
her identification, she only saw the shooter for seconds, and she never identified Starling in other
lineups.
50
See United States v. Emanuele, 51 F.3d 1123, 1132 (1995) (concluding that the defendant was
prejudiced by an unreliable in-court identification where identity was the critical issue and no
physical evidence linked the defendant to the crime).
22
Starling has not demonstrated ineffective assistance in Trial Counsel’s
response at trial to Flonnory’s in-court identification of Starling as the shooter.
Even though Trial Counsel concedes that he did not object to the identification
merely out of surprise rather than strategy, Starling has not established that Trial
Counsel’s representation fell below an objective standard of reasonableness.51
Trial Counsel cross-examined Flonnory regarding her identification and elicited
information which could have placed doubt onto the credibility of Flonnory’s
identification. Furthermore, Starling has not demonstrated prejudice sufficient to
undermine the outcome of his trial.52 If Trial Counsel objected to the identification
or moved to suppress it, there remains a reasonable likelihood that the Trial Court
would have admitted the identification and that Starling still would have been
found guilty considering other evidence of Starling’s guilt.
Counsel’s trial strategy with respect to witnesses Clifford Henry and Lawrence
Moore was effective.
Starling contends that Trial Counsel failed to hire an investigator to
interview two witnesses, Clifford Henry and Lawrence Moore, and that Trial
Counsel failed to utilize information received from the State regarding these
witnesses. First, Trial Counsel did not call Clifford Henry, the barber who cut
Evan’s hair on the night of the shootings, to testify at trial. Starling argues that
51
Strickland, 466 U.S. at 687-88.
52
Id. at 694.
23
Henry would have testified that police claimed Bruce Stewart was the shooter
when they arrived at the scene of the crimes, that everyone present in the
Barbershop looked toward the sound of the first gunshot to contradict Flonnory’s
testimony that she looked into the shooter’s eyes when he entered the Barbershop,
and that the shooter was a man of large stature and was over five feet and eleven
inches tall, significantly taller than Starling.
Second, Starling argues that Trial Counsel failed to elicit excuplatory
evidence from Lawrence Moore, the Barbershop owner who testified that he
watched the entire crime and chased after the shooter after the shooter fled the
Barbershop. Although Trial Counsel cross-examined Moore, Starling alleges that
Trial Counsel did not elicit all relevant information because Moore would have
testified that the police suspected Bruce Stewart of the crime and that the shooter
was significantly taller than Starling. Starling also alleges that Moore would have
testified that he saw pictures of suspects to the shootings in the newspaper and
none of them resembled the shooter he saw on the evening of the crimes.
In response, the State contends that Starling has failed to clearly establish
any prejudice which may have resulted from Trial Counsel’s alleged errors. The
State notes that there were a number of witnesses at trial who testified to varying
24
heights of the shooter and more testimony on the issue would not have changed the
outcome of the trial.53
Counsel was not ineffective in his refusal to call Henry at trial and in his
cross-examination of Moore at trial. Starling has not demonstrated that Trial
Counsel’s failure to call Henry as a witness or elicit more detailed testimony from
Moore establishes that Trial Counsel’s representation fell below a level of
objective reasonableness. There is no requirement that Trial Counsel elicit all
possible evidence at trial.
Furthermore, Starling has not demonstrated actual prejudice. Starling has
failed to establish how Henry and Moore’s testimony would have altered the
outcome of Starling’s trial. There has been no showing that Henry’s testimony
would have convinced the jury that Flonnory’s testimony was falsified.
Additionally, the jury heard various pieces of testimony on the height and stature
of the shooter. Accordingly, Starling has failed to establish how Henry and
Moore’s testimony would have altered the jury’s perception of the shooter’s body
type in a way that would have produced a different trial outcome.
53
For instance, one witness, a barber, testified that the shooter was 5’8’’ or 5’9’’. The owner of
the Barbershop testified that the shooter was 5’11”. On cross-examination, Moore testified that
he told an investigator that the suspect was approximately 6’1” or 6’2”. Gist Sr. testified that the
shooter was 5’11” or 6”. Flonnery testified that the shooter was 5’7” to 5’9” tall. St. Ans.
Amend. Mot. for Postconviction Relief.
25
Trial Counsel’s introduction of the recorded Michael Starling statement did not
rise to the level of ineffective assistance of counsel.
One month after the shootings, the Wilmington police interviewed Michael
Starling, Starling’s half brother. One detective admitted that the interviewing
detectives threatened Michael with imprisonment and falsely told Michael that
Starling had confessed to the shootings. 54 Two hours into the interrogation,
Michael stated that Starling said that Starling “was sorry about the little boy.”
Trial Counsel introduced the recorded interrogation at trial. The recording
included Michael’s statement identifying Starling as the shooter and the detectives’
statements.
Starling asserts that Trial Counsel failed to seek exclusion of the taped
interview of Michael where it was overly prejudicial and unreliable because a
licensed audio engineer testified at trial that there were “continuity problems” with
the tape because there were seven “stop/start” events during the course of the
recording. Starling also asserts that Michael’s statement was involuntary, coerced,
and Trial Counsel should have objected to its introduction.55
54
Detective Mullins admitted this at the November 2012 evidentiary hearing.
55
Starling notes the following: Michael was surprised by a “hallway full of police” at his work
who then forced him to go with them to the police station; Michael was never given his Miranda
rights; he was interrogated for two hours after he stated that he was not at Miller’s house on the
night of the shootings; the police told Michael what to say, and when he did not say it, they
threatened to charge him with double murder; during the interrogation, the police yelled and
banged on the table and Michael cried and begged to speak to his mother.
26
The State responds that Trial Counsel’s failure to object to the introduction
of the interview was objectively reasonable and Starling has failed to establish that
the outcome of the trial would have been different had Trial Counsel objected. The
State also argues that this claim is meritless considering Trial Counsel admitted the
tape into evidence himself to demonstrate that Michael’s statement was coerced
and that the tape was unreliable.
Starling has failed to establish ineffective assistance of counsel in Trial
Counsel’s use of the Michael Starling interview tape. Starling cannot argue that
Trial Counsel was ineffective for failing to object to the introduction of the tape
when Trial Counsel introduced the tape himself. Trial Counsel’s representation
was not objectively unreasonable because Michael’s taped interview permitted the
jury to consider the credibility of Michael’s confession, thus providing potentially
exculpatory evidence for Starling.
C. Starling’s Ineffective Assistance of Counsel Claims at Sentencing Phase
Trial Counsel’s presentation of mitigating evidence was effective.
Starling claims that Trial Counsel was ineffective for failing to obtain and
present mitigating evidence at sentencing. In investigating the availability of
mitigating evidence to be presented at sentencing, defense counsel is required to
27
“conduct a thorough investigation of the defendant’s background.” 56 However,
“there is no duty for defense counsel to pursue all lines of investigation about
potentially mitigating evidence.”57 Instead, counsel has the liberty to choose which
mitigating factors will persuade the jury to not impose death.58 Competency does
not require an attorney to present every witness who can present mitigating
evidence.59
Starling argues that Trial Counsel was ineffective for failing to interview and
obtain testimony from Starling’s biological father because meeting his biological
father had a profound impact on Starling’s life and was a contributor to Starling’s
delinquency. Starling also claims that Trial Counsel was ineffective for failing to
have Starling psychologically tested and failing to obtain testimony from those
who treated or evaluated him, which could have explained evidence of Starling’s
possible antisocial personality disorder. Moreover, Starling argues that Trial
Counsel should have obtained Starling’s school records, which would have
established Starling’s history of mental deficiencies. In response, the State asserts
that Trial Counsel was not required to present all mitigating factors and Trial
Counsel provided sufficient mitigating evidence. Particularly, the State notes that
Trial Counsel provided evidence that Starling’s biological father was absent for
56
Wiggins v. Smith, 539 U.S. 510, 522 (2003) (quoting ABA Guidelines).
57
Flamer v. State, 585 A.2d 736, 757 (Del. 1990).
58
Id.
59
Id.
28
most of his life and that Starling suffered from mental limitations due to fetal
alcohol spectrum disorder and mixed learning disorders.
The Court finds that Trial Counsel’s representation did not fall below an
objective level of reasonableness. Trial Counsel provided mitigating factors which
included Starling’s background, family, and mental/cognitive deficits. Objectively
reasonable representation did not require Trial Counsel to call every possible
witness to establish mitigating evidence. Moreover, even if additional witnesses
were called to testify, there remains a significant likelihood that the jury would
have recommended death, especially where the jury had already heard very similar
mitigating evidence. The State also notes the following: (1) Trial Counsel
presented mitigating evidence on Starling’s behalf and urged the jury to consider it
in sentencing; (2) the State mentioned Starling’s mitigating factors in its closing
argument when it requested the jury sentence Starling to death despite the those
mitigating factors; and (3) Starling presented an allocution to the jury.
Trial Counsel acted properly in refraining to object to mitigation, burden of proof,
and reasonable doubt jury instructions during sentencing
Starling asserts that the Court erred in providing clear and correct jury
instructions at sentencing and Trial Counsel was ineffective for failing to object to
the instructions. In response, the State contends that the jury instructions were
consistent with state and federal law and, therefore, it was not ineffective when
29
trial counsel did not object. If a trial judge’s jury instructions are “reasonably
informative and not misleading by common standards of verbal communication”
they are not a basis for reversal. 60
Starling argues that the Court erred in its instructions in describing the
definition, weight, and standard of proof of the mitigating factors. In its
instruction, the Court stated that, “[a] ‘mitigating circumstance’ is any factor
relating to the crime or to the offender which tends to make the defendant’s
conduct less serious or the imposition of a penalty of death inappropriate.”61
Starling claims that this definition of mitigation was improper because its effect
was to undermine any factor that does not make it “inappropriate” to impose death.
Starling argues that mitigation should encompass all evidence relating to the
defendant’s character or background that might tend to provide a basis for a
sentence other than death. Furthermore, Starling contends that the phrase “relating
to the crime or to the offender” implies that the mitigation must only be related to
the offense; however, other aspects of a defendant’s background can be considered.
In the mitigation instruction, the Court also stated that,
In weighing the aggravating and mitigating
circumstances, it is not a question of mere numbers of
each, but rather, the relative weight of each as compared
60
Mills v. State, 732 A.2d 845, 849 (Del. 1999).
61
Senten. Hrg. Transc. 1-2 (Nov. 4, 2003).
30
to the others . . . [Y]ou do not have to unanimously agree
that a particular mitigating [factor] has been established
in order for you to individually consider such a
mitigating circumstance. 62
Starling argues that this instruction was improper because the assessment should
not have been “the relative weight of each” mitigating circumstance as compared
to the aggravating circumstances. Instead, Starling asserts that there should be a
balancing of the totality of all the mitigating circumstances against the totality of
all the aggravating circumstances and Trial Counsel’s failure to object to these
instructions was ineffective.
The State responds that the mitigation instructions were consistent with state
law, and therefore Starling was not prejudiced by them nor was Trial Counsel
ineffective for failing to object. The Court finds Starling’s claims of ineffective
assistance of counsel with respect to the jury instruction about mitigating evidence
to be without merit. Starling has failed to establish ineffective assistance of
counsel where the instructions properly reflected Delaware law and were otherwise
informative and not misleading.
Next, Starling argues that the Court erred in its instruction to the jury on the
standard of proof when considering its sentencing decision. Although the jury was
instructed to determine whether the aggravating circumstances outweighed the
62
Senten. Hrg. Transc. 110 (Nov. 4, 2003).
31
mitigating by a preponderance of the evidence in accordance with Delaware law, 63
Starling arues that the Delaware Code violates Starling’s Sixth, Eighth, and
Fourteenth Amendment rights. Starling contends that because the sentencing
process is inherently fact-finding, it should be subject to a beyond a reasonable
doubt standard and Trial Counsel was ineffective for failing to object to this
standard.
Starling’s claim regarding the standard of proof jury instruction is
procedurally barred and without merit. First, this claim is barred because Starling
challenged it on direct appeal and the Delaware Supreme Court has ruled on this
claim, finding that Delaware’s dual step capital sentencing procedure is proper
under the Sixth Amendment. 64 Second, this claim is without merit. The jury
instructions were in accord with Delaware law and, therefore, proper.
Finally, Starling argues that the Court’s definition of “reasonable doubt” as
defined in the jury instruction was in violation of Starling’s due process rights and
that Trial Counsel was ineffective when he failed to object to such instructions.
Particularly, Starling contends that the instructions failed to inform the jury that
reasonable doubt can arise from both evidence presented and any absence of
evidence. The State asserts that the Court was not required to give instructions in a
63
11 Del. C. § 4209(c)(3)(2).
64
See Super. Ct. Crim. R. 61(i)(4); see also Starling, 882 A.2d at 756-57.
32
particular format and, therefore, there was no error. The State also argues that
Starling has not argued, nor demonstrated that he was prejudiced by the
instruction.
It is well-established Delaware law that the burden of proof instructions need
not be in a particular format as long as the instructions convey the accurate burden.
The Delaware Supreme Court has held that the “United States Constitution does
not require that any particular form of words be used in advising the jury of the
government’s burden of proof so long as the court instructs the jury on the
necessity that the defendant’s guilt be proved beyond a reasonable doubt.”65 As
long as the jury instructions convey the concept of reasonable doubt, they are not
flawed. 66 Accordingly, it was not objectively unreasonable for Trial Counsel to
concede to such instructions during Starling’s trial.
IV. STARLING’S CONSTITUTIONAL CLAIMS
Starling’s claims of denial of his right to attend his own sentencing hearing is
procedurally barred under Rule 61(i)(3).
Starling argues that his United States and Delaware constitutional rights
were violated when Starling was allegedly denied an opportunity to attend his
sentencing hearing. Starling requested a continuance because the hearing was
scheduled during Ramadan, and Starling did not attend. Starling is a practicing
65
Mills v. State, 732 A.2d at 850.
66
Holland v. United States, 348 U.S. 121, 140 (1954).
33
Muslim and was observing Ramadan during sentencing and Starling claims that
attending the hearing would have breached his religious obligations. Instead of
attending the hearing, he viewed it via video from a lock-up area so that he could
pray at designated times.
The United States Supreme Court has held that a criminal defendant’s right
to be present at all “critical stages of the trial” is fundamental. 67 Delaware also
recognizes a defendant’s right to be present at trial and sentencing; however, this
right can be waived in two instances. 68 First, the right to presence is waived when
the defendant is voluntarily absent after the trial has commenced. 69 Second, the
right to be present is waived when, after being warned of his disruptive conduct
that he will be removed, the defendant’s disruptive conduct persists.70
Starling argues that the two instances of waiver permitted under Delaware
Superior Court Criminal Rule 43 are not applicable to Starling. First, Starling
contends that he was not voluntarily absent, but rather he was compelled to be
absent because of his religious obligations. Second, Starling was not removed due
67
Rushen v. Spain, 464 U.S. 114, 117 (1983).
68
Super. Ct. Crim. R. 43.
69
Super. Ct. Crim. R. 43(b)(1). It does not appear that there is case law which addresses
whether a religious conflict constitutes voluntary absence. See, e.g., Walls v. State, 850 A.2d
287 (Del. 2004) (defendant was voluntarily absent when he disappeared mid-trial without
explanation); see also Thomas v. State, 2004 WL 300444 (Del. Super. Ct. Feb. 9, 2004)
(defendant was voluntarily absent when he refused to be present unless the judge overruled his
order limiting the number of witnesses).
70
Super. Ct. Crim. R. 43 (b)(2).
34
to disruptive behavior. Moreover, Starling claims that Starling was severely
prejudiced because of his absence and notes that the Court explained to Starling
that “there is a risk that [his] absence from most of this proceeding may be
harmful.” 71 Therefore, Starling claims that Trial Counsel was ineffective because
he did not move for a continuance of the hearing date.
The State argues that procedurally defaulted bars this claim unless Starling
can demonstrate cause for his default and actual prejudice because Starling failed
to raise this claim on direct appeal.72 The State notes that Trial Counsel was not
ineffective in proceeding with the scheduled sentencing hearing because Starling
himself failed to raise this concern to Trial Counsel until two days before Ramadan
began. The Court gave Starling the option of attending the penalty hearing,
absenting from the hearing completely, or staying in the holding area next to the
courtroom with audio and video feed and contact with his counsel before cross-
examination of all State witnesses. The Court informed Starling of the potential
negative impact in not attending his own hearing, but he chose to only attend the
State’s closing argument and his allocution. Moreover, the State notes that the
Court explained that Starling had a constitutional right not to attend and during
Starling’s allocution, Starling explained that he was not in attendance due to
religious obligations.
71
Def. Amend. Mot. for Postconviction Relief at 84.
72
See Super. Ct. Crim. R. 61(i)(3), (5).
35
Starling’s claim that he was improperly denied an opportunity to attend his
sentencing hearing is procedurally barred under Rule 61(i)(3). Starling failed to
present this claim on his direct appeal and thus it is barred unless Starling can
demonstrate: (1) “cause for relief from the procedural default” and (2) “prejudice
from violation of the movant's rights.” 73 Starling has failed to demonstrate both
cause and prejudice. Starling was able to mitigate any alleged prejudice by
viewing the hearing from another room, consulting with Trial Counsel about State
witnesses, and explaining that he was not present because of religious reasons
during his allocution.
Starling’s claims of prosecutorial misconduct are procedurally barred under Rule
61(i)(3).
Starling argues that the prosecution engaged in various instances of
misconduct which prejudiced the trial and violated Starling’s right to due process,
a fair trial, and a reliable sentencing hearing. Because of seriousness of sentencing
in a capital case, the prosecutor has a heightened duty. In capital cases, a
prosecutor has a “duty to refrain from conduct designed to inflame the sentencing
jury’s passions and prejudices.”74
First, Starling asserts that the prosecution engaged in misconduct when it
produced Flonnory’s in-court identification on the day of trial where no notice was
73
Super. Ct. Crim. R. 61(i)(3)(A)-(B).
74
Lesko v. Lehman, 925 F.2d 1527, 1541 (3d Cir. 1991).
36
given to Trial Counsel. Second, according to Starling, the State allegedly refused
to provide discovery, which Starling alleges should have included the cell phone
and taxicab records. Third, Starling contends that the State improperly relied on
evidence not in evidence throughout its closing. Fourth, Starling argues that the
State asserts that it elicited Gaines’ testimony because Gaines was upset about the
death of the child; however, Starling argues that the State knew Gaines was lying
and was actually motivated by an unrelated event in which Starling shot Gaines in
self-defense. Fifth, Starling contends that the understanding was that Gaines was
only to testify that Starling, Frink, and he were in the car together on the night of
the crimes; therefore, the State either failed to disclose additional facts to the
Defense or the State elicited Gaines’ story for the first time at trial.
The State argues that the Starling’s claims of prosecutorial misconduct are
procedurally barred because they were not raised at trial or on direct appeal.75
Moreover, the State contends that the claims of prosecutorial misconduct lack
merit. The State, in response to the Defense’s argument that the State failed to
provide discovery, urges that there was no misconduct considering that Trial
Counsel did not request the telephone records in his motion to compel.
Additionally, the State asserts that the Defense had an opportunity to cross-
75
See Super. Ct. Crim. R. 61(i)(1); see also Super. Ct. Crim. R. 61(i)(3).
37
examine Gaines and did so thoroughly so as to elicit any deficiencies in his
testimony.
Starling’s claims of prosecutorial misconduct are procedurally barred under
Rule 61(i)(3) because the claims were never presented at trial or on direct appeal.
Therefore, these claims are procedurally defaulted unless Starling can demonstrate:
(1) “cause for relief from the procedural default” and (2) “prejudice from violation
of the movant's rights.” 76 In the absence of any such evidence, the Court concludes
that Starling’s prosecutorial misconduct claims are without merit. 77 Starling has
not demonstrated cause or prejudice resulting from the alleged prosecutorial
violations.
V. STARLING’S CHALLENGE TO THE DEATH SENTENCE UNDER
THE EIGHTH AND FOURTEENTH AMENDMENTS
Starling claims that that his death sentences violate his constitutional rights
under the Eighth and Fourteenth Amendments because Delaware’s statutory
aggravating factors fail to narrow the class of persons eligible for the death
penalty. Starling also argues that Delaware’s death penalty statute enumerates too
many aggravating factors that the statue does not narrow the pool of offenders
eligible for the death penalty. 78 This argument is without merit. The Delaware
76
Super. Ct. Crim. R. 61(i)(3)(A)-(B).
77
See e.g. Hainey v. State, 945 A.2d 1167 (Del. 2008) (holding that where defendant failed to
raise a prosecutorial misconduct claim at trial or on direct appeal it was procedurally barred).
78
11 Del. C. § 4209(e)(a)-(v).
38
Supreme Court has previously reviewed similar claims and has held Title 11,
Section 4209 of the Delaware Code constitutional. 79
VI. STARLING’S CLAIMS REGARDING CUMULATIVE EFFECT OF
ERRORS
Where one error, standing alone, does not merit basis for reversing a
conviction, cumulative error may. 80 However, harmless errors, even when
cumulative, remain harmless when there is no actual prejudice. 81 Finally, Starling
argues that even if one individual claim does not merit relief, the cumulative effect
of the errors merit relief under Rule 61. The State responds by arguing that
Starling has failed to allege harmless error or actual prejudice, and thus reversal is
unwarranted.
With respect to Starling’s claim of cumulative error, the Court finds this
claim without merit. The Court is not convinced that Starling has been denied any
of his constitutional rights so as to warrant reversal of his convictions or his
sentences.
79
State v. Cohen, 604 A.2d 846, 850 (Del. 1992);
80
See Wright v. State, 405 A.2d 685, 690 (Del. 1979).
81
Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008); Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir.
2007).
39
NOW, THEREFORE, this 28th day of August, 2014, the Defendant’s
Motion for Postconviction Relief is hereby DENIED.
IT IS SO ORDERED.
Andrea L. Rocanelli
_____ ________________
The Honorable Andrea L. Rocanelli
40