Starling v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHAUNCEY S. STARLING, §

§ No. 533, 2014

Defendant Below, §

Appellant, § Court Below – Superior Court

§ of the State of Delaware

v. § in and for New Castle County

§

STATE OF DELAWARE, § Cr. ID No. 0104015882

§

Plaintiff Below, §

Appellee. §

Submitted: October 7, 2015

Decided: December 14, 2015

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and

SEITZ, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. REVERSED.

James J. Haley, Jr., Esquire, Wilmington, Delaware, Steven H. Brose, Esquire,

David M. Fragale (Argued), Esquire, Jeremy D. Engle, Esquire (Argued), Steptoe

& Johnson LLP, Washington, D.C., for Defendant Below, Appellant.

Elizabeth R. McFarlan, Esquire, Maria T. Knoll (Argued), Esquire, Karen V.

Sullivan, Esquire, Department of Justice, Wilmington, Delaware, for Plaintiff

Below, Appellee.

SEITZ, Justice, for the majority:

I. INTRODUCTION

A masked gunman entered a Wilmington, Delaware barbershop, shot to

death his intended victim, and also shot and killed a five-year-old boy. The police

arrested Chauncey Starling one month after the shooting, when the State’s key

witness, Alfred Gaines, identified Starling as the shooter after Starling allegedly

shot Gaines in a separate incident in Chester, Pennsylvania.

In 2003, the State tried Starling for first degree murder, conspiracy, and

related weapons charges. No physical evidence linked Starling to the crime.

Instead, the State relied primarily on Gaines’ testimony and statements made to

police by Starling’s brother and girlfriend. The State also relied on testimony from

the victim’s girlfriend, who identified Starling as the shooter based on his eyes. A

Superior Court jury convicted Starling of all charges, and the judge sentenced him

to death. On direct appeal, this Court affirmed the conviction but remanded the

case for resentencing. After remand, the Superior Court again sentenced Starling

to death. We then affirmed the death sentences.

Starling then moved for postconviction relief in the Superior Court. Starling

claimed that his counsel during trial (“Trial Counsel”) was ineffective, that the

State failed to disclose exculpatory evidence under Brady v. Maryland, 1 and that

1

373 U.S. 83 (1963).

2

the prosecution engaged in misconduct at trial. Following years of discovery,

evidentiary hearings, and briefing, the Superior Court on September 5, 2014,

denied Starling’s motion and this appeal followed. Starling renews the same

constitutional arguments on appeal.

With no physical evidence to link Starling to the crimes, it was essential to a

fair trial that Trial Counsel use all available impeachment evidence, and make

timely and appropriate objections to the admission of evidence going to the heart

of the State’s case. It was also incumbent on the State to provide Trial Counsel

with accurate information about exculpatory evidence relevant to the credibility of

the State’s central witness. Our review of the record leads us to conclude that

mistakes were made that undermine confidence in the fairness of the trial.

First, Starling’s Trial Counsel intended to but forgot to examine an

eyewitness to the shooting about statements the witness made to an investigator

shortly after the shooting. That eyewitness stated that he recalled seeing

photographs in the newspaper of the two barbershop shooting suspects, one of

which was Starling, and told the investigator that “none of those individuals had

the same appearance as the shooter.” Second, Trial Counsel failed to object to the

State’s admission of Starling’s brother’s statement to police, where after several

hours of interrogation the twenty-three year old told police that Starling said he

3

was sorry for what he did to the boy. A substantial argument could have been

made that the statement was involuntary and therefore inadmissible.

Finally, before trial the State dismissed a capias and violation of probation

(“VOP”) charges against Gaines, the State’s central witness at trial, but at the time

of trial the State represented to Trial Counsel that the charges remained “pending.”

We have long held that whenever the State reduces pending charges against any

State witness, whether the charges are related to the crime at trial or not, disclosure

to the defense is mandatory. 2 Instead of providing accurate information, the State

misinformed Trial Counsel about the status of Gaines’ charges. This mistake,

unintentional as it was, deprived the defense of important evidence that might have

been used to attack the credibility of the State’s main witness.

The cumulative effect of each of these errors leads us to conclude that there

is a reasonable probability that the outcome of the trial would have been different

without the errors. Therefore we reverse Starling’s conviction and remand for a

new trial.

2

See, e.g., Michael v. State, 529 A.2d 752, 756 (Del. 1987).

4

II. BACKGROUND 3

A. The Shooting

On March 9, 2001, at about 8:30 p.m., several patrons were in the Made 4

Men Barbershop in Wilmington. A masked gunman wearing a black hooded

sweatshirt entered the barbershop and opened fire on Darnell Evans, who was

sitting in a barber’s chair near the entrance. Evans ran to the back of the

barbershop, and the shooter followed him. After Evans fell to the ground, the

shooter stood over Evans and shot him twice in the head. Evans suffered “five

gunshot wounds to the head, chest, abdomen, and groin.” 4 At some point, five-

year-old Damon Gist, Jr., who was there with his father, was shot in the jaw. Both

Evans and Gist died from their wounds.

The barbershop’s owner, Lawrence Moore, initially pursued the shooter, but

ultimately abandoned the chase. Although Moore and the barbershop patrons

witnessed the shooting, none of them could identify the shooter by name. The

police did not recover any DNA, fingerprints, or the murder weapon.

On April 7, 2001, Pennsylvania police discovered Alfred Gaines in Chester,

Pennsylvania. Gaines had been shot multiple times around 11:18 p.m. and was in

possession of crack cocaine. He was also in violation of his probation in

3

Unless otherwise noted, the following facts are taken from the Superior Court’s opinion, State

v. Starling, 2014 WL 4386127 (Del. Super. Sept. 5, 2014).

4

Id. at *1.

5

Delaware, which, among other things, forbade him from leaving the State of

Delaware, possessing controlled substances, or being out after 10:00 p.m. After

police arrested him for violation of his probation and possession of crack cocaine,

Gaines told detectives that Starling was the person who shot him, and that Starling

had also committed the barbershop shooting. Starling had allegedly been pursuing

Gaines because Gaines had shot an acquaintance of Starling’s the day before in

Wilmington.

In November 2001, a grand jury indicted Starling for the barbershop

shooting. Starling was charged with two counts of first degree murder, two counts

of possession of a firearm during the commission of a felony, and one count of first

degree conspiracy.

B. Starling’s Trial

The State’s primary witness was Gaines, who testified that he was with

Starling and Richard Frink on the evening of the shooting. He testified that the

three men were driving around Wilmington and that when they passed the

barbershop, Frink saw Evans through the window. According to Gaines, Starling

then exited the car, tucked a gun into his pants, and said he was going to “put in

some work,” which Gaines interpreted to mean that Starling would shoot or fight

6

someone.5 Gaines testified that Starling was dressed in all dark clothing and

wearing a black hooded sweatshirt. According to Gaines, after fifteen minutes,

Starling came back to the car where Gaines and Frink had remained and said, “I

got him. I got him. I think I got a little boy, too.” 6 Gaines testified that Frink then

drove Gaines home.

Gaines also testified that Starling called him the evening of the shooting,

because Starling was upset and wanted to talk. Gaines apparently took a taxi to

meet Starling at the home of Vicki Miller, Starling’s girlfriend. Gaines testified

that Starling “was a wreck” and mentioned shooting “a little boy.” 7 Starling’s

brother Michael was present, and Gaines alleged that both he and Michael heard

Starling say he was sorry for what he did to the boy. Michael drove Gaines home.

At trial, the State introduced Michael’s statement to police detectives

obtained during his interrogation on April 27, 2001.8 Several days earlier,

Michael, who was twenty-three years old at the time, had been arrested and held in

custody for six or seven hours before being released. 9 Then, on April 27, police

came to Michael’s workplace and drove him to the station for questioning. The

detectives took Michael’s cell phone, would not let him make phone calls, and

5

App. to Opening Br. at 532-33 (Trial Test. of A. Gaines, Oct. 16, 2003).

6

Id. at 535.

7

Id. at 536.

8

Id. at 582 (Trial Tr., Oct. 17, 2003).

9

Id. at 574-75 (Trial Test. of M. Starling, Oct. 17, 2003).

7

ignored his repeated requests for his mother. 10 Michael at first denied that his

brother was involved in the shooting. The Detectives then threatened Michael with

criminal charges and suggested that he could spend the rest of his life in jail for

crimes he did not commit, 11 or in the alternative, obstruction of justice. 12 The

police told Michael that his brother had confessed. They questioned Michael

extensively, reiterating that everyone else’s story was the same, and told Michael

repeatedly what they wanted him to say—that Starling said the night of the

shooting he was sorry for what he did to the boy. 13 After being told he could see

his mother and the questioning would end when he repeated the statement back,

Michael finally told the detectives that Starling had said he was sorry for what he

did to the boy. 14 The State introduced Michael’s statement at trial without

10

Id. at 574; id. at 313 (Interview of M. Starling, Apr. 27, 2001) (“Where’s my mom?”); id. at

326 (“Can I see my mom?”).

11

Id. at 284 (“[D]on’t get dragged into something [i.e. the barbershop shooting] that you weren’t

there for [because] that’s what’s gonna happen.”); id. at 289, 291 (“The bottom line is don’t drag

yourself down the sewer when you weren’t even there! Unless you want to get charged? I don’t

think you’re that you know, you’re not that stupid are you? You don’t have to take a charge for

something you didn’t do? Particularly when you don’t have to.”); id. at 294 (“Mike, you are a

smart man, don’t throw your life away for something you weren’t involved in.”); id. at 1590

(Evidentiary Hr’g Tr., Test. of Det. Mullins, Nov. 29, 2012) (“Q. Did you or did Detective

Sullivan threaten Michael with being criminally charged in connection with something he didn’t

do? . . . A. Yeah I guess.”).

12

Id. at 285 (“You ever heard of obstruction of justice?”).

13

Id. at 289 (“I know what was said . . . but the bottom line is I need to hear it from you.”); id. at

294 (“It’s over with, . . . your brother made a very big mistake, he knows it, he’s sorry for it, no

one intended for the little kid to get killed but it happened.”); id. at 302, 310, 317, 319, 320-21,

325, 326, 327, 332, 344.

14

App. to Opening Br. at 305, 332, 348-49.

8

objection and without a determination by the trial judge that the statement was

voluntary.

Shaylynn Flonnory, Evans’ girlfriend, made an in-court identification of

Starling. She claimed that she was standing outside the barbershop right before the

shooting and that she saw the shooter dressed in all black, including a black

hooded sweatshirt, holding a gun. Flonnory testified that she saw the shooter’s

eyes through the openings in the shooter’s mask. At trial, she identified Starling as

the shooter based on his eyes.

The jury convicted Starling on each count of the indictment on October 22,

2003. 15 On November 4, 2003, the jury concluded that the aggravating factors

outweighed the mitigating factors and unanimously recommended the death

penalty. The Superior Court agreed with this recommendation and sentenced

Starling to death on June 10, 2004.16

C. Starling’s Direct Appeal

In his direct appeal, Starling raised a number of arguments relating to the

jury venire, use of peremptory challenges, and denial of his Fifth Amendment right

against self-incrimination. He also challenged the constitutionality of Delaware’s

death-penalty statute under the Sixth Amendment, as well as the Superior Court’s

15

Starling v. State, 882 A.2d 747, 752 (Del. 2005).

16

State v. Starling, Cr. ID No. 0104015882 (Del. Super. June 10, 2004).

9

sentencing decision. Further, Starling argued that the prosecution failed to disclose

Miller’s statement to police, “den[ying] that Starling admitted anything to her or

that she saw Starling on the night of the shootings.”17

This Court affirmed the convictions but vacated the death sentences because

the Superior Court judge “erred as a matter of law by stating that he was ‘directed’

to give the recommendation great weight.” 18 This Court then remanded the case to

the Superior Court for resentencing. The Superior Court resentenced Starling to

two death sentences on October 2, 2005. We affirmed those sentences on appeal. 19

D. Starling’s Motion For Postconviction Relief

In April 2007, Starling filed three pro se Rule 61 motions for postconviction

relief. 20 The Superior Court appointed counsel, who filed an Amended Petition for

Postconviction Relief on April 1, 2008. During the next six years, the Superior

Court held numerous hearings on various petitions and responses.

At the postconviction relief hearings, Starling’s post-conviction counsel

examined various individuals involved in his prosecution between 2001 and 2004.

On November 26, 2012, one of the prosecutors testified about her recollections of

dealing with the potential extradition of Gaines after he was shot in Chester, and of

17

Starling, 882 A.2d at 751.

18

Id. at 759.

19

Starling v. State, 903 A.2d 758, 767 (Del. 2006).

20

Starling, 2014 WL 4386127, at *2.

10

a possible cooperation agreement with Gaines.21 The prosecutor was not able to

recall many details about her work on the case. She did, however, testify that she

requested that the Superior Court withdraw a pending capias and VOP charges

against Gaines such that he would not be extradited to Delaware. 22 The lead

prosecutor also testified. He testified that he believed and told Trial Counsel

before trial that Gaines’ VOP was “pending” and “we weren’t doing anything or

that nothing was being done with them, they were being held in abeyance until

after his trial . . . .” 23

Trial Counsel also testified and submitted an affidavit. Trial Counsel

testified that he was not aware that the State had asked the Superior Court to

withdraw the capias and Gaines’ VOP charges. Trial Counsel said that the State

provided him with a summary of Gaines’ prior criminal history just before trial,

which listed Gaines’ VOP charges as pending. Trial Counsel also testified that he

forgot to ask Moore about the statements Moore made to an investigator—that

neither of the photographs in the newspaper of suspects in the barbershop shooting,

one of which was Starling, looked like the shooter. Moore had also described the

shooter as substantially taller than Starling. According to Trial Counsel, Moore’s

opinion that Starling did not look like the shooter “was something that obviously

21

App. to Opening Br. at 1178-273.

22

Id. at 1229.

23

Id. at 1333.

11

was favorable to the defense.”24 Additionally, Trial Counsel admitted that his

failure to cross-examine Moore about it “certainly wasn’t strategic or tactical.” 25

Finally, Trial Counsel testified that he believed Michael’s statement was coerced

and involuntary, but that rather than object to its admission, he sought to let the

jury decide whether to believe it by playing them the recording of the entire

interview.

Starling based his Rule 61 motion on various grounds. We discuss only

those necessary to resolve this appeal. First, Starling argued that Trial Counsel

was ineffective for failing to examine Moore on his statements to an investigator.

The Superior Court concluded that Trial Counsel was not ineffective for failing to

do so because Starling failed to establish how “Moore’s testimony would have

altered the outcome of Starling’s trial.” 26 The Court noted that various

eyewitnesses testified regarding the shooter’s height and weight, and Starling made

no showing that Moore’s additional 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.” 27

24

Id. at 1840.

25

Id. (“I recall filling out the affidavit, shaking my head, I missed it, how did I miss it, I have no

clue.”). Despite Trial Counsel’s attempts to recall Moore to the stand after realizing the mistake,

he was unable to locate Moore. Id. at 1840-42; id. at 921.

26

Starling, 2014 WL 4386127, at *10.

27

Id. The record indicates that Starling had only one attorney representing him at trial.

12

Second, Starling asserted that Trial Counsel was ineffective for failing to

object to the State’s admission of Michael’s statement to detectives into evidence.

The Superior Court also rejected this argument. It observed that the tape’s

introduction “permitted the jury to consider the credibility of Michael’s confession,

thus providing potentially exculpatory evidence for Starling.” 28 Third, Starling

argued that the State violated its obligation under Brady v. Maryland by

withholding information useful to impeach Gaines’ testimony. At the

recommendation of Gaines’ probation officer and the request of the Delaware

Attorney General’s office, the State withdrew Gaines’ capias and VOP charges on

October 17, 2001. 29 The Superior Court first concluded that Rule 61(i)(3) barred

this claim. 30 On the merits, the Superior Court accepted the State’s assertion that it

made no deal with Gaines, and concluded that the State allowed Gaines to remain

in Pennsylvania because of safety concerns related to Starling’s alleged shooting of

Gaines in Chester. 31 The Superior Court also explained that “disclosure was not

28

Id. at *11.

29

App. to Opening Br. at 358 (Probation Progress Report, Oct. 16, 2001).

30

Starling, 2014 WL 4386127, at *3.

31

See id. at *5 (“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.”).

13

mandated because Trial Counsel . . . knew that Gaines’ probation had been

discharged.” 32

The Superior Court rejected these arguments for postconviction relief and

his other claims. Starling renews the same claims on appeal.33

III. ANALYSIS

We review the Superior Court’s denial of a motion for postconviction relief

for abuse of discretion. 34 We review ineffective assistance of counsel claims and

alleged Brady violations de novo. 35

A. The Strickland Standard

In Strickland v. Washington, the United States Supreme Court established a

two-pronged test for ineffective assistance of counsel claims:

First, the defendant must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious

that counsel was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This

32

Id.

33

Starling raises a host of other claims that we need not and do not reach. These include: (i) that

Trial Counsel was ineffective for failing to object to the in-court identification of Starling by a

witness, Shaylynn Flonnory; (ii) that the State violated Brady by failing to disclose Frink’s cell

phone records, which Starling claimed he could have used to impeach Gaines; (iii) that the State

engaged in prosecutorial misconduct by arguing in its rebuttal closing argument that Starling

ignored incoming calls on his cell phone around the time of the barbershop shooting; and (iv)

that the State violated Brady by failing to disclose a statement Vicki Miller made to police on

April 19, 2001.

34

Ploof v. State, 75 A.3d 811, 820 (Del. 2013).

35

Id.

14

requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable. 36

We evaluate Starling’s ineffective assistance of counsel claims using this

approach, determining whether Trial Counsel was deficient and, if so, whether

Starling suffered prejudice from the ineffectiveness. Defense counsel is deficient

where counsel’s representation falls below an objective standard of

reasonableness.37 To demonstrate prejudice caused by counsel’s ineffectiveness, a

defendant “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” 38 A

reasonable probability of a different result means a “probability sufficient to

undermine confidence in the outcome,” a standard lower than “more likely than

not.”39 “The likelihood of a different result must be substantial, not just

conceivable.”40

B. Starling’s Trial Counsel Was Ineffective For Failing To Elicit

Exculpatory Evidence From Moore

Starling argues that Trial Counsel was ineffective for failing to cross-

examine Moore about his exculpatory statements. As the only person who saw the

shooter during the shooting and chased him afterward, Moore had the best

36

Strickland v. Washington, 466 U.S. 668, 687 (1984).

37

Gattis v. State, 697 A.2d 1174, 1178 (Del. 1997).

38

Strickland, 466 U.S. at 694.

39

Id. at 693-94.

40

Harrington v. Richter, 562 U.S. 86, 112 (2011) (citing Strickland, 466 U.S. at 693, 697).

15

opportunity to identify him. 41 According to an investigator’s report, Moore stated

during an interview, after seeing the newspaper photographs of two suspects in the

barbershop shooting, one of which was Starling, that neither of the photographs

looked like the shooter, and that the shooter was substantially taller than Starling.42

Trial Counsel forgot to ask Moore about these exculpatory statements during cross-

examination. In his testimony during postconviction proceedings, Trial Counsel

testified that Moore’s opinion that Starling did not look like the shooter “was

something that obviously was favorable to the defense.”43 Additionally, Trial

Counsel testified that his failure to cross-examine Moore about it “certainly wasn’t

strategic or tactical.” 44 The Superior Court nonetheless determined that Trial

Counsel’s representation was effective because “[t]here is no requirement that

Trial Counsel elicit all possible evidence at trial.”45

41

Moore stated to an investigator that “he believes that he was the only person in the shop at the

time who stood and watched the entire incident unfold.” App. to Opening Br. at 361 (Memo re

L. Moore).

42

Id. (“Mr. Moore states that he recalls seeing photographs of individuals . . . who were

suspected of the crime and/or charged . . . [and] none of those individuals had the same

appearance as the shooter.”). Moore stated that the shooter was approximately 6’1” or 6’2”

when he was interviewed on December 20, 2001, id. at 360, and testified at trial that the shooter

was about 5’11”, id. at 496 (Trial Test. of L. Moore, Oct. 15, 2003). Starling is 5’6”. Id. at 630

(Trial Test. of K. Taylor, Oct. 21, 2003).

43

App. to Opening Br. at 1840.

44

Id. (“I recall filling out the affidavit, shaking my head, I missed it, how did I miss it, I have no

clue.”).

45

Starling, 2014 WL 4386127, at *10.

16

It is correct, as a general matter, that trial counsel does not have to elicit all

possible evidence at trial. But where eyewitness testimony played a central role in

the State’s case, and no physical evidence linked Starling to the crime, Trial

Counsel’s failure to use important exculpatory evidence fell below any objective

standard of reasonableness and was ineffective representation. Trial Counsel had

in hand a private investigator’s report where eyewitness Moore, who claimed to be

the only witness to view the entire incident, recounted to the investigator that he

saw two photographs of the shooting suspects, one of which was Starling, and said

that “none of those individuals had the same appearance as the shooter.”46

Despite attempts by Trial Counsel to recall Moore to the stand after realizing the

mistake, Trial Counsel could not locate Moore. 47 Forgetting to examine a witness

on critical exculpatory eyewitness testimony was ineffective assistance of counsel.

The Superior Court determined that Starling failed to demonstrate actual

prejudice from the mistake because “the jury heard various pieces of testimony on

the height and stature of the shooter” and Moore’s testimony would not have

“altered the jury’s perception of the shooter’s body type in a way that would have

produced a different trial outcome.” 48 We disagree. Moore arguably had the best

view of the shooter. The jury could have found Moore’s description of the

46

App. to Opening Br. at 360-62 (Memo re L. Moore).

47

Id. at 1840-42; id. at 921.

48

Starling, 2014 WL 4386127, at *10.

17

shooter’s physical characteristics the most reliable, which would have been

favorable to Starling. The jury could have also used Moore’s testimony to aid in

its evaluation of other eyewitness testimony offered by the State.

For instance, Moore’s initial recollection of the shooter’s height was 6’1” or

6’2.” Starling is 5’6.” 49 Charrod Ali Batts and Damon Gist, Sr., also

eyewitnesses, gave conflicting testimony about the shooter’s appearance. Batts

testified that the shooter “wasn’t too tall” and “wasn’t too short,” but rather was

“probably the same size as me if not a little bit shorter.” 50 Batts testified that he is

5’8” or 5’9.”51 Gist, on the other hand, testified closer to Moore that the shooter

was 5’11” or 6’0.”52 Moore also believed the shooter was “about 200, 205”

pounds, which differed from Gist’s recollection of “around 170.” 53

Given the serious conflict among the eyewitnesses about the shooter’s

appearance, and the lack of any physical evidence connecting Starling to the crime,

Trial Counsel’s failure to elicit important exculpatory testimony from the witness

with perhaps the best vantage point to view the shooter caused serious prejudice to

Starling’s defense.

49

App. to Opening Br. at 630 (Trial Test. of K. Taylor, Oct. 21, 2003).

50

Id. at 488 (Trial Test. of A. Batts, Oct. 15, 2003).

51

Id.

52

Id. at 506 (Trial Test. of D. Gist, Oct. 15, 2003); App. to Answering Br. at 1 (Transcribed

Statement of D. Gist).

53

App. to Opening Br. at 506 (Trial Test. of D. Gist, Oct. 15, 2003). Batts testified that the

shooter had a “medium build.” Id. at 490, 506 (Trial Test. of A. Batts, Oct. 15, 2003).

18

C. Starling’s Trial Counsel Was Ineffective For Not Objecting

To Michael Starling’s Statement

Starling asserts that Trial Counsel was ineffective for failing to object to the

State’s admission into evidence of Michael’s pre-trial statement. As explained

previously, during interrogation by two detectives two months after the shooting,

Michael told police that he heard Starling say that he was sorry for what he did to

the boy. Without objection, the State entered the statement into evidence at the

conclusion of a detective’s examination, not during Michael’s examination as

required by the statute. Trial Counsel never asked the court to make a threshold

voluntariness determination, and none was made by the trial court. 54

Under § 3507 of the Delaware Criminal Code, “[i]n a criminal prosecution,

the voluntary out-of-court prior statement of a witness who is present and subject

to cross-examination may be used as affirmative evidence with substantive

independent testimonial value.”55 The General Assembly enacted the statute to

allow the statements of turncoat witnesses to be admitted into evidence.56 The

statement must be voluntary to be admissible. 57 The voluntariness requirement

54

There is some confusion in the briefs and in the record regarding which party actually

introduced the tapes, but Trial Counsel made the decision to play the tapes for the jury. Id. at

613-15 (Trial Tr., Oct. 21, 2003).

55

11 Del. C. § 3507(a).

56

Collins v. State, 56 A.3d 1012, 1019 (Del. 2012).

57

Taylor v. State, 23 A.3d 851, 853 (Del. 2011).

19

ensures that coercion by improper conduct does not taint the reliability of these

statements.58

There are certain threshold requirements to admissibility that must be met

before the statement can be heard by the jury:

A statement offered under Section 3507 must be offered before the

conclusion of the direct examination of the declarant. The prosecutor

must inquire about the voluntariness of the statement during the direct

examination of the declarant, and the judge must make a ruling on

whether the declarant made the statement voluntarily before the

statement may be submitted to the jury for consideration.59

“Determining whether a statement was voluntary requires a ‘careful evaluation of

all the circumstances of the interrogation.’” 60 For a statement to be involuntary, it

must have been obtained by tactics that are so coercive as to “overbear the person’s

will and rational thinking processes.” 61 A statement obtained by threats can be

involuntary. 62

The Superior Court ruled that Starling essentially waived this claim because

“Trial Counsel introduced the tape himself,” and in any event introduction of the

58

See State v. Rooks, 401 A.2d 943, 946 (Del. 1979) (“[T]he possibility of coercion by improper

conduct is no less present in out-of-court statements of witnesses than it is in out-of-court

confessions by defendants . . . .”); Hatcher v. State, 337 A.2d 30, 32 (Del. 1975).

59

Dunn v. State, 2014 WL 4698488, at *2 (Del. Sept. 22, 2014); Woodlin v. State, 3 A.3d 1084,

1087 (Del. 2010) (“[T]he trial judge ‘must be satisfied that the offering party has shown by a

preponderance of the evidence that the statement was voluntarily made, and must render an

explicit determination on the issue before admitting it for the jury’s consideration.’”) (quoting

Hatcher, 337 A.2d at 32).

60

Flowers v. State, 858 A.2d 328, 330 (Del. 2004) (quoting Rooks, 401 A.2d at 948).

61

Rooks, 401 A.2d at 948.

62

Id. at 947 (citing State v. Winsett, 205 A.2d 510, 521 (Del. Super. 1964)).

20

tape “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.” 63 We disagree with the

Superior Court and determine that counsel’s failure to object to Michael’s

statement was ineffective and caused material prejudice to Starling’s defense.

As an initial matter, the record contradicts the finding of waiver. The State

moved the admission of Michael’s statement, not Starling.64 Trial Counsel did

thereafter play the full interview for the jury, but only after the statement was in

evidence.65 Trial Counsel’s decision to play the entire interrogation for the jury,

rather than being a tactical decision, is better described as damage control after

failing to object. It is also no answer to say, as the State claims and as the Superior

Court held, that Starling delegated to the jury the voluntariness determination.

Under § 3507 the voluntariness determination is the exclusive province of the trial

judge, not the jury. 66 Although we need not determine at this juncture whether

Michael’s statement was voluntary, serious doubt existed about the voluntariness

of Michael’s statement such that Trial Counsel should have objected and insisted

63

Starling, 2014 WL 4386127, at *11.

64

The State introduced the tapes without objection from Trial Counsel. App. to Opening Br. at

582 (Trial Tr., Oct. 17, 2003).

65

Id. at 615 (Trial Tr., Oct. 21, 2003).

66

Woodlin, 3 A.3d at 1087.

21

that the statute’s requirements be satisfied, including a voluntariness determination

by the trial court.

If there had been an objection, the trial judge would have had to determine,

under the totality of the circumstances, whether Michael’s “will was so overborne

that the statements produced were not the product of a rational intellect and free

will.” 67 This is a fact-specific inquiry where the trial judge “consider[s] the

specific tactics utilized by the police in eliciting the admissions, the details of the

interrogation, and the characteristics of the defendant.” 68

In this case, Michael found himself surprised by a “hallway full of cops” at

his workplace who took him away for interrogation.69 He was then held at the

police station for approximately five or six hours and interrogated by two

detectives. 70 Michael was not read his Miranda rights. Michael was not allowed

to make any phone calls.71 While in custody, Michael repeatedly asked to speak to

67

Roth v. State, 788 A.2d 101, 108 (Del. 2001) (quoting Martin v. State, 433 A.2d 1025, 1032

(Del. 1981)); see also Collins, 56 A.3d at 1018.

68

Baynard v. State, 518 A.2d 682, 690 (Del. 1986); see also id. (“Factors which bear on these

circumstances include the following: ‘the youth of the [declarant]; his lack of education or his

low intelligence; the lack of any advice to the [declarant] of his constitutional rights; the length

of detention; the repeated and prolonged nature of the questioning; and the use of physical

punishment such as the deprivation of food or sleep.’”) (quoting Schneckloth v. Bustamonte, 412

U.S. 218, 226 (1973)).

69

App. to Opening Br. at 620 (Trial Test. of M. Starling, Oct. 21, 2003).

70

Id. at 575 (Trial Test. of M. Starling, Oct. 17, 2003).

71

Id. at 574.

22

his mother, 72 who the police promised would be arriving shortly (though she did

not).73 The police also told Michael exactly what they wanted to hear him say:

“[W]e already know what happened, we know the story, but we know that he told

you [sic] that he was sorry for I just need to hear it from you! And we’re done!” 74

The police then repeatedly threatened to charge Michael with crimes if he

did not say what they wanted to hear.75 Specifically, the police told him that he

could be charged with the barbershop murders, telling him: “The bottom line is

don’t drag yourself down the sewer when you weren’t even there! Unless you

want to get charged? . . . You don’t want to take a charge for something you didn’t

do? Particularly when you don’t have to.”76 The police also threatened to charge

72

Id. at 574; id. at 313 (Interview of M. Starling, Apr. 27, 2001) (“Where’s my mom?”); id. at

326 (“Can I see my mom?”).

73

Id. at 183 (“[S]he’s on her way in here, alright . . . .”).

74

Id. at 310.

75

See, e.g., App. to Opening Br. at 267 (Interview of M. Starling, Apr. 27, 2001) (“I don’t think

you want to get caught up in it. Trust me on this one.”); id. at 268 (“Bottom line is you don’t

want to get dragged in on this man, okay? Alright?”); id. at 269 (“What I’m telling you is, don’t

lie because you don’t want to get caught up in this, alright?”); id. at 282 (“Because we know the

answer Michael and I don’t want to see you get jammed up. . . . Michael, we know the answer

but I don’t want to see you get jammed up on this.”); id. at 284 (“You are not a suspect in

anything, but don’t get dragged into something that you weren’t there for cause that’s what’s

gonna happen”); id. at 288 (“Nobody wants to go to jail for something they didn’t do Michael,

and I hope you’re on the same page.”); id. at 290 (“I know, but the thing is don’t involve yourself

in a double murder investigation.”); id. at 336 (“[A]nd I explained it to you from the beginning,

don’t get jammed up in this.”).

76

Id. at 291.

23

Michael with obstruction of justice.77 The police admitted to making these threats:

“Q. Did you or did Detective Sullivan threaten Michael with being criminally

charged in connection with something he didn’t do? . . . A. Yeah I guess.”78

Michael testified at trial that “[he] just told them what they wanted to hear, or [he

believed he] was going to . . . jail.” 79 In the face of substantial evidence pointing to

the involuntariness of Michael’s statement, Trial Counsel did not object and did

not invoke the procedural requirements of § 3507.

Finally, the State argues that Trial Counsel’s testimony reflects that the

failure to object was a tactical decision, and should not be second-guessed by this

Court. Trial Counsel stated that, because he believed that the statement was

admissible under § 3507, he “sought to suggest to the jury that it had been the

product of coercion by the interviewing detectives.” 80 Some judgments made by

trial counsel, however, are so far out of the realm of reasonable trial strategy that

they qualify as ineffective assistance.81 Trial Counsel recognized that Michael’s

statement “was the biggest problem for the defense case [and] was the best part of

77

See id. at 285 (“You ever heard of obstruction of justice?”); id. at 281 (“Now don’t be pretty

sure cause a lot of that’s gonna depend on whether or not you’re hindering okay a police

investigation and that’s not good Michael . . . .”).

78

Id. at 1590 (Evidentiary Hr’g Tr., Test. of Det. Mullins, Nov. 29, 2012).

79

Id. at 623 (Trial Test. of M. Starling, Oct. 21, 2003).

80

Id. at 921-22.

81

Trial Counsel harbored doubts about the voluntariness of Michael’s statement. See id. at 1806

(interrogation was “very, very suggestive, very coercive”); see also id. (Trial Counsel agreed

Michael’s statement “wasn’t a voluntary and intelligent description of the alleged events”).

24

the prosecution case.” 82 Trial Counsel would have risked nothing by objecting to

Michael’s statement and forcing the State to follow the requirements of § 3507 and

prove voluntariness. Even if the trial court overruled Starling’s objection, Trial

Counsel would still have been able to play the full tape for the jury and argue

involuntariness. As such, Trial Counsel’s performance fell below the standard of

objectively reasonable performance and prejudiced Starling’s right to a fair trial. 83

D. The State Violated Brady By Telling Trial Counsel That Gaines’

Capias And VOP Were Pending During Trial

Starling argues that the State violated its obligation to provide accurate

information to the defense and to disclose exculpatory information under Brady

about the disposition of Gaines’ capias and VOP charge. The State argues in

response, and the Superior Court agreed, that the claim was procedurally barred,

and also without merit because Trial Counsel was allegedly aware of the dismissal

82

App. to Opening Br. at 1800-01.

83

Other courts have held that Trial counsel’s unjustified failure to object to the admission of

evidence or testimony that is highly detrimental to the defense prejudices the defendant, and does

not satisfy the minimum requirements of Strickland. See, e.g., Thomas v. Varner, 428 F.3d 491,

501 (3d Cir. 2005) (“[F]ailure to move to suppress or otherwise object to an in-court

identification by the prosecution’s central witness, when there are compelling grounds to do so,

is not objectively reasonable representation . . . .”); Henry v. Scully, 78 F.3d 51, 53 (2d Cir.

1996) (finding ineffective assistance of counsel arising from several unjustified “instances of

inaction” by trial counsel where he failed to object to a co-defendant’s testimony against the

defendant and to hearsay testimony that “explained away” defendant’s strongest argument at

trial); Tomlin v. Myers, 30 F.3d 1235 (9th Cir. 1994) (finding ineffective assistance of counsel

where trial counsel failed to object to an in-court identification of the defendant that was based

on an earlier unconstitutional and illegal live line-up); Commonwealth v. Costa, 742 A.2d 1076,

1077 (Pa. 1999) (“Trial counsel failed to object to [an] impermissible reference to appellant’s

post-arrest silence. No reasonable basis exists for that failure.”).

25

before trial. The Superior Court also found that Trial Counsel would not have used

the impeachment evidence to avoid opening the door to other evidence unhelpful

to Starling’s case. After our review of the record, we hold that the claim was not

procedurally barred. We also find that the State violated Brady by inaccurately

describing the status of Gaines’ criminal charges, and the error caused material

prejudice to the defense.

Gaines was a probationer when he was shot in Chester, Pennsylvania. The

terms of his probation required him to remain in Delaware, to observe a 10:00 p.m.

curfew, and not to consume or possess controlled substances.84 Gaines’ probation

officer, Jason Garrick, secured a capias for his arrest and instituted a VOP charge

after Gaines was shot because Gaines was out of state, out of his house after his

curfew, and possessed crack cocaine at the time he was shot.85 Garrick

recommended that Gaines be extradited, his probation be revoked, and he be

returned to Delaware to serve out the remainder of his prison sentence. 86 The State

also filed a detainer against Gaines and obtained an extradition order to allow

Gaines to be taken into custody upon his release from prison in Pennsylvania after

being held on charges of possessing crack cocaine. 87

84

App. to Opening Br. at 185 (Capias for A. Gaines Issued Apr. 18, 2001).

85

Id. at 184-89.

86

Id. at 1727.

87

Id. at 1728.

26

After a prosecutor spoke to Officer Garrick about Gaines’ shooting in

Chester, Officer Garrick wrote in Gaines’ October 16, 2001 probation progress

report: “After speaking with [the assistant attorney general], she advised me that

she spoke to Your Honor and requested that [Gaines’] VOP and Capias be

withdrawn. This Officer is respectfully recommending that Your Honor

withdrawal [sic] the VOP and Capias on Mr. Gaines.” 88 The first prosecutor who

made the request was one of the prosecutors in Starling’s case. She testified that

Gaines’ VOP and capias were withdrawn because Gaines was physically unable to

return to Delaware. 89 The court dismissed the capias and the VOP charge,90 and

allowed Gaines to stay in Pennsylvania while he recovered from his injuries.

Gaines was no longer reporting to his probation officer, but was instead allegedly

“being supervised by the Attorney General’s Office.” 91

88

Id. at 358-59 (Probation Progress Report for A. Gaines).

89

The deputy attorney general testified that she did so only because Gaines was not going to be

able to comply with his parole because he had been shot. See id. at 1229 (“I recall that we

contacted the Court and asked the capias and violation of probation be withdrawn because, at

that time, Alfred Gaines was either in the hospital or not able to come to Delaware because he

had been injured.”); id. (“I don’t know how the capias and VOP, what the process was to have it

withdrawn, if it was at a hearing. I don’t recall the specifics of that. I recall only the general

nature of that. That we asked the Court to withdraw the capias and VOP because Gaines was not

able to comply because he’d been shot.”).

90

Id. at 919 (Super. Ct. Crim. Docket, Mar. 13, 2008).

91

Id. at 397-99 (Progress Report Disposition, Mar. 27, 2002). The lead prosecutor’s testimony

suggested that the idea that Gaines was “being supervised by the Attorney General’s Office” may

have been wrong. Id. at 1344 (“[W]e weren’t supervising anybody.”).

27

After the dismissal of charges, but before trial, the first prosecutor did not

inform Trial Counsel of the dismissal of the capias and VOP charges, and the

second prosecutor, who was unaware of the dismissal, incorrectly told Trial

Counsel that Gaines’ VOP was still pending, and would be held in abeyance until

after his trial.92 The prosecution also provided Trial Counsel with a summary of

Gaines’ prior criminal history, which listed Gaines’ VOP as “pending.”93

1. No Procedural Bar To Starling’s Capias/VOP Brady Claim

Superior Court Criminal Rule 61 generally bars claims that were not raised

on direct appeal. Specifically, Rule 61(i)(3) provides that “[a]ny ground for relief

that was not asserted in the proceedings leading to the judgment of conviction . . .

is thereafter barred, unless the movant shows (A) [c]ause for relief from the

procedural default and (B) [p]rejudice from violation of the movant’s rights.” 94

As it stood when Starling filed his claim, Rule 61(i)(5) exempts from this

procedural bar “a colorable claim that there was a miscarriage of justice because of

a constitutional violation that undermined the fundamental legality, reliability,

92

Id. at 1332-33.

93

Id. at 456-59 (A. Gaines’ Rapsheet, Apr. 15, 2002); id. at 1722-23. Gaines’ rapsheet was

generated on October 14, 2003 and provided to the defense some time on or shortly after that

date. Id. at 1723. The guilt phase of Starling’s trial started on October 15, 2003 and the jury

returned a guilty verdict on October 22, 2003.

94

Super. Ct. Crim. R. 61(i)(3).

28

integrity or fairness of the proceedings leading to the judgment of conviction.”95

“To invoke this exception, there must be both a claim of a constitutional violation,

and a showing that the claim is ‘colorable.’” 96 When considering a Brady claim,

which is a constitutional claim, “[a] colorable claim of a [Brady] violation falls

within this exception.” 97 “When the Brady rule is violated, postconviction relief

cannot be barred by Rule 61(i)(3) because a Brady violation undermines the

fairness of the proceeding leading to the judgment of conviction.” 98

Because Starling had alleged a colorable claim of a Brady violation, that

claim was not barred by Rule 61(i)(3) as it existed when the claim was filed.

2. The State Violated Brady By Representing To Trial Counsel That Gaines’

VOP And Capias Were Pending During Trial

In State v. Wright, we recently set forth the proper analysis for evaluating a

Brady claim:

Under Brady . . . , the State’s failure to disclose exculpatory and

impeachment evidence material to the case violates a defendant’s due

process rights. The reviewing court may also consider any adverse

effect from nondisclosure on the preparation or presentation of the

95

Super. Ct. Crim. R. 61(i)(5). Although Rule 61(i)(5) was amended on June 4, 2014, we must

apply the version that existed at the time Starling filed his Rule 61 motion. See Collins v. State,

2014 WL 2609107, at *2 (Del. June 9, 2014) (applying the version of Rule 61(e)(1) “in effect at

the time [the defendant] filed his first postconviction motion”); State v. Jones, 2013 WL

5372415, at *3 (Del. Sept. 24, 2013) (“[T]he recently amended Rule 61 ha[s] no effect after [the

defendant’s] initial Rule 61 petition.”).

96

Taylor v. State, 32 A.3d 374, 388 (Del. 2011) (quoting Super. Ct. Crim. R. 61(i)(5)).

97

State v. Wright, 67 A.3d 319, 324 (Del. 2013).

98

Jackson v. State, 770 A.2d 506, 515 (Del. 2001).

29

defendant’s case. There are three components of a Brady violation:

(1) evidence exists that is favorable to the accused, because it is either

exculpatory or impeaching; (2) that evidence is suppressed by the

State; and (3) its suppression prejudices the defendant. In order for

the State to discharge its responsibility under Brady, the prosecutor

must disclose all relevant information obtained by the police or others

in the Attorney General’s Office to the defense. That entails a duty on

the part of the individual prosecutor to learn of any favorable evidence

known to the others acting on the government’s behalf in the case,

including the police.99

For a Brady violation to be material such that it causes prejudice, the

defendant need not show that “the disclosure of the suppressed evidence would

have resulted in an acquittal.”100 The defendant must show, however, that the

suppressed evidence “creates a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.”101

In other words, the suppression of evidence must “undermine[] confidence in the

outcome of the trial.” 102 We will not reverse a conviction based on a Brady

violation if there is “overwhelming evidence establish[ing a defendant’s] guilt.” 103

In Michael v. State, 104 we addressed a Brady violation in circumstances

similar to this case. Defendant John Michael faced charges of attempted murder.

The prosecutor was concurrently prosecuting the victim for driving under the

99

91 A.3d at 987-88 (quotations and citations omitted).

100

Id. at 988.

101

Id. (quotations omitted) (emphasis in original).

102

Id. (quotations omitted) (citing Kyles v. Whitley, 514 U.S. 419, 434 (1995)).

103

Jackson, 770 A.2d at 517.

104

529 A.2d 752 (Del. 1987).

30

influence of alcohol in an unrelated criminal prosecution, and allowed the victim to

plead guilty to the lesser offense of reckless driving. The prosecutor did not

inform the defense of the reduced charge against the victim. The State had not

reduced the charges in exchange for testimony at the defendant’s trial, and the

prosecutor denied any quid pro quo for the reduction of charges. 105

Even in the absence of any quid pro quo arrangement, this Court established

a mandatory disclosure rule, where the failure to disclose a reduction of related or

unrelated charges against a trial witness is a Brady violation:

Whenever the State reduces any pending charges (related or not) or

makes any arrangement with any State witness, disclosure is

mandatory. The State was required to disclose a reduction in [the

victim’s] traffic charges and failed to do so. 106

Our decision in Michael v. State leads us to the conclusion that a Brady

violation occurred here. The first prosecutor secured the dismissal of the capias

and VOP charges against Gaines before trial, and did not provide the information

to Trial Counsel. The second prosecutor, who was unaware of the dismissal,

mistakenly told Trial Counsel before trial that the charges remained pending. The

prosecutor who requested dismissal of the charges denied any quid pro quo for the

105

Id. at 757 n.10.

106

Id. at 756.

31

dismissal, but was one of the prosecutors in Starling’s trial. 107 The evidence would

also have been material to the defense, where Gaines was the main State’s witness

and no physical evidence linked Starling to the murders. 108 As this Court noted in

Michael v. State:

Evidence which the defense can use to impeach a prosecution witness

by showing bias or interest, as well as exculpatory evidence, falls

within the Brady rule. Such evidence is “evidence favorable to an

accused” so that, if disclosed and used effectively, it might make the

difference between conviction and acquittal. The jury’s estimate of

the truthfulness and reliability of a given witness may well be

determinative of guilt or innocence. Indeed, it is upon such subtle

factors as the possible interest of the witness in testifying falsely that a

defendant’s life or liberty may depend.109

The Superior Court ruled that the prosecution was not required to disclose

the dismissal of charges because Trial Counsel allegedly knew after reviewing

Gaines’ records that Gaines was on probation when Starling shot Gaines, and also

knew that Gaines’ probation had been discharged. The court’s ruling, however,

107

Starling, 2014 WL 4386127, at*6. Officer Garrick’s memo is clear that the DDOJ sought

dismissal of the capias and VOP charges: “After speaking with [the assistant attorney general],

she advised me that she spoke to Your Honor and requested that [Gaines’] VOP and Capias be

withdrawn.” App. to Opening Br. at 358-59 (Probation Progress Report).

108

The Superior Court recognized Gaines’ central role in this case:

Mr. Gaines’ role as a witness in this case is very important. His credibility is a

very significant issue in the case. The shooter in the barbershop cannot be

identified, as far as I know. There was no eyewitness identification of the shooter

in the barbershop or any other substance such as a fingerprint or DNA or anything

else linking—that I’m aware of—Mr. Starling to the barbershop, so that puts more

of a central role on Mr. Gaines.

App. to Opening Br. at 449.

109

Michael, 529 A.2d at 756 (quoting United States v. Bagley, 473 U.S. 667, 676 (1985)).

32

misapprehends Starling’s argument. Starling focuses on the State’s failure to

notify Trial Counsel of the withdrawal of the capias and VOP charges, not Gaines’

discharge from probation. Trial Counsel at some time may have seen a report of

the probation discharge, but there is no proof that Trial Counsel knew that the

capias and VOP charges had been dismissed against Gaines.110 Perhaps more

importantly, Trial Counsel was entitled to and did in fact rely on the prosecution’s

representation and the summary of charges provided to the defense just before trial.

The prosecution told Trial Counsel, and the rap sheet confirmed, that the VOP

charges were pending at the time of trial and would remain pending until after

trial.111 In fact, the State argued in closing that it had been completely forthcoming

about Gaines’ criminal history: “When Alfred Gaines . . . took the stand, did we

hide anything about him from you? Was he—did you learn all about his criminal

past?”112 The State also argued that Gaines motive for testifying arose from his

“decision to try and give some peace to a couple of families of murder victims and

110

The Superior Court found that “Trial Counsel . . . was aware of the discharge of the violation

of probation . . . .” Starling, 2014 WL 4386127, at *5. No evidence supports this finding. On

the contrary, Trial Counsel testified that he did not know that the State had asked to Superior

Court to withdraw Gaines’ VOP and capias. App. to Opening Br. at 1729; id. at 922 (“I knew

that Mr. Gaines was on probation and that he was being permitted to reside out of state pending

trial in Mr. Starling’s case.”). Neither the State nor Trial Counsel asked Gaines about any active

capiases or VOPs at trial.

111

See App. to Opening Br. at 1333; id. at 1725; id. at 468-69 (Trial Counsel’s Handwritten

Notes Showing VOP Pending).

112

Id. at 645 (Trial Tr., Oct. 22, 2003).

33

come forward with what he said. You saw Alfred Gaines testify. It is your

judgment on credibility that most matters.”113

The Superior Court also ruled that it was unlikely that Trial Counsel would

have used the information to impeach Gaines, and therefore Starling did not suffer

prejudice from the Brady violation. Specifically, the court found that Trial

Counsel “properly avoided making this presentation to the jury which would have

implicated Starling in another shooting.” 114 The court was referring to the shooting

in Chester, where Starling allegedly shot Gaines while Gaines was on probation.

Starling allegedly shot Gaines in retaliation for Gaines’ shooting of Starling’s

acquaintance in Wilmington the day before.115 According to the court, Trial

Counsel and the State had an agreement not to mention the Chester shooting at

trial. The court inferred from this agreement that raising the Chester shooting at

trial would have abrogated the agreement and opened the door to the State

questioning Gaines about the circumstances of the shooting, including testimony

from Gaines that Starling shot him. We are unconvinced that any of these reasons

would have prevented Trial Counsel from using the Brady material to impeach

Gaines at trial.

113

Id.

114

Starling, 2014 WL 4386127, at *5.

115

App. to Opening Br. at 445, 450 (Trial Tr., Oct. 10, 2003).

34

As an initial matter, the State and Trial Counsel did not have an agreement

not to mention the Chester shooting at trial. A Chester police detective testified at

trial that Gaines was shot in Chester. 116 Gaines also testified that after being shot

in Chester he decided to tell the police about the Wilmington shooting. 117 Instead,

counsel agreed that Gaines could not testify that Starling shot him in Chester. 118

The agreement would not have prevented Trial Counsel from impeaching Gaines

with the dismissal of the capias and the VOP charges.

Further, questioning Gaines about the VOP charge would not necessarily

have opened the door for the prosecution to question Gaines about the Chester

shooting. Both the State and Starling were at risk if either party opened the door to

the Chester shooting details. If the State asked to pursue the details of the Chester

shooting, Gaines, the State’s main witness whose credibility was at stake, would

also be questioned about the Wilmington shooting, where he allegedly shot

Starling’s acquaintance the day before. This standoff in all likelihood led to the

agreement between counsel. In any event, Trial Counsel was never in the position

to make a strategic call on the use of the evidence, because he was unaware of it.

116

App. to Opening Br. at 524-26 (Trial Test. of Officer Hampel, Oct. 16, 2003).

117

Id. at 537 (Trial Test. of A. Gaines, Oct. 16, 2003).

118

Id. at 528 (Trial Tr., Oct. 16, 2003).

35

We note that Trial Counsel testified that had he been aware of the Brady

information, he would have used the information to impeach Gaines at trial. 119

The judge at Starling’s trial was keenly focused on issues that would arise if

either the prosecution or the defense opened the door to the details of the Chester

and Wilmington shootings. The main trial could have turned into a “mini-trial” of

the Chester and Wilmington shootings.120 To prevent this, the trial judge had

options for allowing the impeachment to be used by Trial Counsel, while

permitting the State a fair opportunity to respond, without abrogating the

agreement between counsel. For example, the trial judge could have permitted

Trial Counsel to impeach Gaines using the dismissal of the capias and VOP

charge. Consistent with counsel’s agreement, the State would be able to respond

with what it contended was the reason the capias and VOP charges were

dismissed—not for any quid pro quo with Gaines but instead “because Gaines was

not able to comply because he’d been shot.” 121 All of this examination could be

done without referring to the shooter in either alleged shooting.

119

Id. at 1729.

120

Id. at 440-50 (Trial Tr., Oct. 10, 2003).

121

Id. at 1229.

36

E. The Cumulative Effect Of Ineffective Assistance Of Counsel And The

Brady Violation Undermines Our Confidence In The Verdict

Counsel’s ineffective performance under Strickland for failing to object to

Michael’s statement and for failing to effectively examine Moore, combined with

the State’s Brady violation, undermines our confidence in the verdict. The

touchstone of either test, Strickland or Brady, is the fairness of the trial.122 Where

there are multiple material errors in a trial, the Court must weigh their cumulative

effect and determine if, combined, they are “prejudicial to substantial rights [so] as

to jeopardize the fairness and integrity of the trial process.” 123 The relevant inquiry

is, after considering the errors, “whether we can be confident that the jury’s verdict

would have been the same.” 124 We find that the procedural errors in this case

resulted in an unfair trial.

Gaines was the State’s main witness, and his credibility was already at risk

due to his criminal record and the Wilmington shooting. Trial Counsel could have

used the dismissal of the capias and VOP charges to counter Gaines’ testimony that

it was a concern for the victims’ families that brought him to testify. As noted in

122

See Breakiron v. Horn, 642 F.3d 126 (3d Cir. 2011) (cumulative effect of Brady violation and

ineffective assistance of counsel deprived defendant of a fair trial).

123

Hoskins v. State, 102 A.3d 724, 735 (Del. 2014) (quoting Turner v. State, 5 A.3d 612, 615

(Del. 2010)); see also Wright, 91 A.3d at 993-94 (holding that cumulative effect of multiple

Brady violations undermined confidence in the fairness of the proceedings such that a new trial

was warranted).

124

Kyles v. Whitley, 514 U.S. 419, 453 (1995).

37

Michael v. State, impeachment evidence of this kind can make the difference

between conviction and acquittal. Counsel’s ineffectiveness also deprived Starling

of two major avenues of attack on the credibility of the State’s corroborating

witnesses. Substantial issues existed about the voluntariness of Michael’s

statement to police, and Trial Counsel would have risked nothing by objecting to

the statement and demanding a voluntariness hearing. Trial Counsel also forgot to

ask the eyewitness with perhaps the best view of the shooter about his review of

Starling’s photograph and statement that Starling did not look like the shooter.

The cumulative effect of these mistakes, unintentional as they may be, requires

reversal, and a remand for a new trial. Because we have found reversible error on

the foregoing grounds, we do not reach Starling’s other claims.

IV. CONCLUSION

Darnell Evans and Damon Gist, Jr. were the victims of a heinous and violent

crime. Starling stands accused of the murders and must face trial. Like all

citizens, he is entitled to a fair trial that adheres to procedural requirements with

effective representation. Because those procedural requirements were not met, and

counsel defending him was ineffective, we are compelled to reverse and remand

for a new trial and proceedings not inconsistent with this opinion.

38

The judgment of the Superior Court is reversed and this matter is remanded

for a new trial.

39

VAUGHN, Justice, concurring:

I agree that a Brady violation occurred, and I am satisfied that it warrants a

new trial. I write separately because I do not agree with the Court’s conclusions on

the Moore cross-examination or the Michael Starling statement.

On direct examination at trial, Moore stated that he, himself, was 5’11”, and

that the shooter was “about my height.” 125 When asked whether he was sure that

the shooter was neither taller nor shorter than him, he responded:

I mean, it happened so quick, so it was like, you know, I just

gave my guesstimate. He was either shorter or taller, but I

know he wasn’t taller than me. I know that for a fact. 126

On cross-examination, Moore estimated the shooter’s height at 5’11” or a

little shorter. He testified that his own weight was 175, and that the shooter had a

little smaller build than his.

Trial counsel then confronted Moore with the fact that he had told an

investigator that the shooter’s height was 6’1” or 6’2”. Moore admitted telling the

investigator that the shooter was 6’1” or 6’2”, but explained it this way:

Now that I’m looking at it, I remember saying it. Like I said, it

happened so quick, I mean, just basically threw it out there. 127

125

Appellant’s Op. Br. App. at A496.

126

Id.

127

Id. at A498.

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Thus, trial counsel elicited on cross-examination that Moore had given the

investigator an estimate of the shooter’s height which was substantially at variance

with Starling’s actual height. Moore also admitted that he had reported to the

investigator that the shooter weighed about 200 or 205 pounds. In his closing

argument, trial counsel argued these conflicts to the jury, and argued that 6’1” or

6’2” and 200 or 205 pounds better described Gaines than Starling.

On this record, Starling has failed to establish prejudice from trial counsel’s

failure to ask about the photos of the suspects. A question about the photos would

have informed the jury that Moore had said that neither photo looked like the

shooter, and that the shooter was taller than Starling. But counsel did put before

the jury the fact that Moore had said to an investigator that the shooter was 6’1” or

6’2” and 200 to 205 pounds. It made no difference. Nothing in the record

suggests that repeating it a second time in the context of the photos would have

made any difference. And there is nothing in the record to indicate how Moore

would have handled the question if he had been asked. When asked about his

statement that the shooter was 6’1” or 6’2”, he tried to minimize it, saying that he

had “just basically, threw it out there.” 128 Since Starling has failed to establish

prejudice, I need not consider whether trial counsel’s failure to ask about the

128

Id.

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photos fell below an objective standard of reasonableness. I do think it merits

mention, though, that here we have an instance of human error, the forgetting to

ask a question. In my opinion, when trial counsel’s cross-examination of Moore is

considered as a whole, the Court’s finding that his failure to ask about the photos

fell below an objective standard of reasonableness sets an unfortunate precedent.

Starling has also failed to establish prejudice with regard to Michael

Starling’s statement. Prejudice exists only if the statement is involuntary and thus

inadmissible. The place to make that showing is in this post-conviction

proceeding, where the Strickland analysis is taking place. In the Superior Court,

Starling’s claim of ineffectiveness regarding Michael Starling’s statement included

an assertion that the statement was involuntary. In its post-conviction opinion, the

Superior Court rejected Starling’s claim. The fact that he can make the same

assertion when he goes back to his new trial, with an unknown outcome, does not

establish prejudice under Strickland.

I express no opinion on the voluntariness or lack of voluntariness of Michael

Starling’s statement, as the issue may come back to us on a developed Superior

Court record if Starling is convicted at his new trial. I hope the Superior Court

judge hearing Starling’s case will not be influenced, even slightly, by this Court’s

statement that “serious doubt existed about the voluntariness of Michael’s

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statement.” I hope that the Superior Court judge will render her own, independent

judgment based upon her evaluation of the evidence.

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