State v. Wright
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
Plaintiff Below,
Appellant,
v.
JERMAINE WRIGHT,
Defendant Below,
Appellee.
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No. 10, 2012
Court Below: Superior Court
of the State of Delaware,
in and for New Castle County
I.D. No. 91004136DI
Submitted: February 5, 2013
Decided: May 24, 2013
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and
RIDGELY, Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Paul R. Wallace, Esquire, Former Chief of Appeals, (argued), Gregory E. Smith,
Esquire, Maria T. Knoll, Esquire and Danielle J. Brennan, Esquire, State of
Delaware Department of Justice, Wilmington, Delaware, for Appellant.
Herbert W. Mondros, Esquire, Margolis Edelstein, Wilmington, Delaware for
Appellee.
Of Counsel: Billy H. Nolas, Esquire, (argued), James Moreno, Esquire and Tracy
Ulstad, Esquire, Federal Community Defender Office for the Eastern District of
Pennsylvania, Philadelphia, Pennsylvania for Appellee.
BERGER, Justice, for the Majority:
In this appeal we consider whether a murder conviction must be overturned.
The trial court granted appellee’s fourth motion for postconviction relief, finding
that his confession should have been excluded from evidence, and that the State
improperly withheld evidence of a similar crime that the police determined
appellee did not commit. The trial court then granted bail for appellee. We hold
that the trial court erred in reviewing the admissibility of the confession, sua
sponte, and in concluding that there was a so-called Brady violation. The trial
court also erred in deciding that appellee could be granted bail. The judgment is
reversed.
Factual and Procedural Background
On August 26, 1992, Jermaine Wright was convicted of first degree murder
and other crimes arising from a 1991 robbery at the Hi-Way Inn bar and liquor
store. Following a penalty hearing, Wright was sentenced to death on October 22,
1992. This Court affirmed Wright’s conviction and sentence on direct appeal.1 In
1994, the Superior Court granted Wright’s first Superior Court Criminal Rule 61
postconviction motion, and vacated his sentence.2 After a resentencing hearing,
1
Wright v. State, 633 A.2d 329 (Del. 1993).
2
State v. Wright, 653 A.2d 288 (Del. Super. 1994). Super. Ct. Cr. Rule 61 provides a remedy for a
person “in custody or subject to future custody under a sentence of [the Superior Court] seeking to
set aside a judgment of conviction or a sentence of death on the ground that the court lacked
jurisdiction or on any other ground that is a sufficient factual and legal basis for a collateral attack
upon a criminal conviction or a capital sentence.” Super. Ct. Crim. R. 61(a)(1).
2
the Superior Court again sentenced Wright to death in 1995. This Court affirmed.3
In 1997, Wright filed his second Rule 61 motion. This Court affirmed the Superior
Court’s denial of the motion.4 In 2000, Wright filed a petition for writ of habeas
corpus in the United States District Court for the District of Delaware. In 2003,
while his habeas petition was pending in federal court, Wright filed his third Rule
61 motion. The Superior Court stayed that motion pending the outcome of the
federal petition. In 2009, while the third Rule 61 motion was pending, Wright filed
this fourth Rule 61 motion. Wright asked the District Court, which had not yet
ruled on his petition for habeas corpus, to stay the federal proceedings so that he
could exhaust his state law remedies. The District Court granted that motion.
In the fall of 2009, the Superior Court held seven days of hearings on
Wright’s motion, as amended. In January 2012, the Superior Court granted, in
part, Wright’s fourth Rule 61 motion. The trial court held that the admission of
Wright’s confession violated Miranda v. Arizona,5 and that the State violated
Brady v. Maryland,6 when it withheld evidence of a similar crime committed at
3
Wright v. State, 671 A.2d 1353 (Del. 1996).
4
Wright v. State, 746 A.2d 277 (Del. 2000) (TABLE); State v. Wright, 1998 WL 734771 (Del.
Super. Sept. 28, 1998).
5
384 U.S. 436 (1966).
6
373 U.S. 83 (1963).
3
Brandywine Village Liquor Store (“BVLS”) about 30 minutes prior to the Hi-Way
Inn crime. As a result, the trial court vacated Wright’s convictions. This appeal
followed.
After several remands, the Superior Court determined that it had jurisdiction
to conduct a second proof positive hearing and admit Wright to bail.7 The trial
court also found that Wright’s trial counsel “was unaware of the exculpatory
evidence stemming from the BVLS attempted robbery at the time of [Wright’s]
trial.”8 The matter has now been returned to this Court for review.
Discussion
No bail may be set before the appeal is decided.
The first issue is whether the Superior Court has jurisdiction to grant bail
when its decision vacating a capital murder conviction is on appeal. The Delaware
Constitution provides that, “[a]ll prisoners shall be bailable by sufficient sureties,
unless for capital offenses when the proof is positive or the presumption
great . . . .”9 Two statutes address the right to bail in capital cases – 11 Del. C.
§§ 2103 and 4502. Section 2103 provides:
(a) A capital crime shall not be bailable, and a person so charged shall
be held in custody without bail until the charge be withdrawn, reduced
or dismissed or until the court shall otherwise order after a trial which
7
State v. Wright, 2012 WL 1408981 (Del. Super. Apr. 2, 2012).
8
State v. Wright, 2012 WL 5964029, at *4 (Del. Super. Nov. 28. 2012).
9
Del. Const. art. I, § 12.
4
results in less than a conviction of a capital crime or except as
provided in subsection (b) of this section.
(b) The Superior Court may admit to bail a person charged with a
capital crime if, after full inquiry, the Superior Court shall determine
that there is good ground to doubt the truth of the accusation . . . .
Section 4502 addresses the requirements for a stay of execution:
No writ of error or writ of certiorari issuing from the Supreme Court
in any criminal cause shall operate as a stay of execution of the
sentence of the trial court unless . . . the plaintiff in error obtains . . . a
certificate that there is reasonable ground to believe that there is
error . . . which might require a reversal of the judgment below . . . .
In cases where sentence of death has been imposed, the trial court . . .
may stay the execution of the death penalty pending the determination
of the cause by the Supreme Court, but the defendant below shall not
be released from custody.
Although the statutes do not directly address the circumstances presented
here, they express the legislative intent that a person convicted of a capital crime
may not be released on bail while that conviction is on appeal to this Court.
Section 2103(a) states that a capital crime is not bailable unless the charge is
withdrawn, reduced, dismissed or, after trial, the person is convicted of an offense
less than a capital crime. None of those events have transpired. Section 2103 (b)
allows bail if the Superior Court determines that there is good ground to doubt the
truth of the accusation. This subsection is inapplicable because Wright is not
simply accused of a capital crime, he has been convicted of a capital crime. The
statute does not authorize the Superior Court to reconsider the truth of the
accusation, as if Wright had never been convicted, just because the Superior Court
5
has vacated the conviction.
If there were any doubt on this point, Section 4502 makes it clear that the
General Assembly intended convicted capital murderers to remain in custody
pending an appeal. That statute addresses a stay of execution of the sentence, not
the appeal. But, it provides that, even if there is reasonable ground to believe that a
conviction might be reversed, the defendant in a capital case “shall not be released
from custody.” The trial court found that there were grounds for reversal, but that
decision was appealed. Until the appeal is decided, Wright’s conviction is not
finally vacated.
As a person convicted of a capital murder, Wright remains
ineligible for bail.
There was no basis for the Superior Court to reconsider the
admissibility of Wright’s confession.
This Court considers the procedural requirements of Rule 61 before
addressing the merits of claims made in postconviction proceedings.10 Rule 61(i)
bars consideration of a postconviction motion, among other reasons, if it is
untimely (Rule 61(i)(1)), repetitive (Rule 61(i)(2)), procedurally defaulted (Rule
61(i)(3)), or formerly adjudicated (Rule 61(i)(4)).
Rule 61(i)(5) provides an
exception to the first three bars if there is “a colorable claim that there was a
miscarriage of justice because of a constitutional violation that undermined the
10
Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255 (1989)).
6
fundamental legality, reliability, integrity or fairness of the proceedings leading to
the judgment of conviction.” In addition, a repetitive motion, or one formerly
adjudicated, may be reconsidered “in the interest of justice.”11
Notwithstanding the fact that the admissibility of Wright’s confession has
been challenged and upheld repeatedly,12 the trial court found that there is an
“actual innocence” exception embodied in Rule 61(i)(5), and that Wright satisfied
his burden of showing that he is innocent and that there was a constitutional error
in his trial.
The Superior Court then reviewed the Miranda warning Wright
received at the beginning of his taped statement. It found that the warning was
inherently confusing and that the warning did not adequately explain that Wright
was entitled to have counsel appointed for him.
The Superior Court decided to address the adequacy of Wright’s Miranda
warnings sua sponte. It listened to the same videotaped confession that was the
subject of a motion to suppress before trial; a claim of error on direct appeal; the
second Rule 61 motion; and the appeal of that motion.
11
Each challenge was
See Super. Ct. Crim. R. 61(i)(2), (4).
12
See Wright v. State, 746 A.2d 277, at *1 (Del. Jan. 18, 2000) (TABLE); Wright v. State, 633 A.2d
329, 334-35 (Del. 1993); State v. Wright, 1998 WL 734771, at *5-6 (Del. Super. Sept. 28, 1998);
State v. Wright, 1992 WL 207255, at *3 (Del. Super. Aug. 6, 1992); State v. Wright, I.D. No.
91004136, at 16-17, 19-20 (Del. Super. Oct. 30, 1991) (ORDER).
7
rejected after addressing Wright’s understanding of his Miranda rights.13
In deciding Wright’s fourth postconviction motion, the Superior Court did not have
any new evidence upon which to conclude that Wright’s Miranda warnings were
defective.14 “[A] defendant is not entitled to have a court re-examine an issue that
has been previously resolved ‘simply because the claim is refined or restated.’”15
Wright did not ask for that relief, but if he had, there would be no basis on which
to find that he overcame the procedural bar of Rule 61(i)(4). Reconsideration is
not warranted in the interest of justice.
The Superior Court erred in finding a Brady violation.
Rule 61(i)(5) provides an exception to the procedural bars for “a colorable
claim that there was a miscarriage of justice because of a constitutional violation
that undermined the fundamental legality, reliability, integrity or fairness of the
proceedings leading to the judgment of conviction.” A colorable claim of a Brady
13
See Wright v. State, 746 A.2d 277, at *1 (Del. Jan. 18, 2000) (TABLE); Wright v. State, 633 A.2d
329, 334-35 (Del. 1993); State v. Wright, 1998 WL 734771, at *5-6 (Del. Super. Sept. 28, 1998);
State v. Wright, 1992 WL 207255, at *3 (Del. Super. Aug. 6, 1992); State v. Wright, I.D. No.
91004136, at 16-17, 19-20 (Del. Super. Oct. 30, 1991) (ORDER).
14
Super. Ct. Crim. R. 61(i)(4); see Richardson v. State, 3 A.3d 233, 237 (Del. 2010).
15
Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (quoting Riley v. State, 585 A.2d 719, 721 (Del.
1990)); see also Sanders v. United States, 373 U.S. 1, 7-22 (1963)); Salih v. State, 962 A.2d 257,
at *2 (Del. 2008) (TABLE); Younger v. State, 580 A.2d 552, 556 (Del. 1990) (citing Kuhlmann v.
Wilson, 477 U.S. 436, 445-55 (1986)).
8
v. Maryland violation falls within this exception.16 The Superior Court found a
Brady violation based on the State’s failure to disclose evidence relating to a
similar-in-time-and-proximity attempted robbery at BVLS.
Approximately forty minutes before the Hi-Way Inn crime, two young black
males attempted to rob another liquor store, BVLS, which is located approximately
1.5 miles from the Hi-Way Inn. The description of the perpetrators given by the
BVLS witness is similar to those given by the Hi-Way Inn witnesses. The suspects
for both the BVLS attempt and the Hi-Way Inn crime were described as two black
men in their early to mid-twenties; one man approximately six feet tall and the
other one shorter; and one of whom was armed. The police recognized similarities
between the two offenses in a February 2, 1991 police report, and two
contemporaneous news articles reported that police were considering a connection
between the two crimes. The chief investigator of the BVLS attempted robbery
ultimately ruled out Wright as a suspect in that crime.
In Brady v. Maryland, the United States Supreme Court held that the State’s
failure to disclose exculpatory evidence violates a defendant’s due process rights.17
“There are three components of a Brady violation: (1) evidence exists that is
16
See Jackson v. State, 770 A.2d 506, 515-16 (Del. 2001).
17
373 U.S. 83 (1963).
9
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.”18 Assuming, without deciding, that the first two prongs were satisfied,
there was no Brady violation because Wright was not prejudiced.
The third Brady factor requires that there is “a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would
have been different.”19 A “reasonable probability” is “a probability sufficient to
undermine confidence in the outcome.”20 This Court has described the third prong
as requiring that prejudice resulted from the failure to disclose.21
No such
prejudice has been shown.
Although the police initially thought there might be a connection between
the BVLS and Hi-Way Inn crimes, their investigations did not find one.
In addition, the BVLS crime was not solved. Under these circumstances, it is
difficult to see how the fact that Wright was excluded as a participant in the BVLS
18
Starling v. State, 882 A.2d 747, 756 (Del. 2005).
19
Starling, 882 A.2d at 756 (quoting Jackson v. State, 770 A.2d 506, 516 (Del. 2001)) (internal
quotation mark omitted); see United States v. Bagley, 473 U.S. 667, 682 (1985); see also Kyles v.
Whitley, 514 U.S. 419, 433-34 (1995).
20
Bagley, 473 U.S. at 682 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984))
(internal quotation marks omitted).
21
See Atkinson v. State, 778 A.2d 1058, 1063 (Del. 2001) (citing Strickler v. Greene, 527 U.S. 263,
281-82 (1999)).
10
crime would have added to his defense. Wright confessed. He used an alibi
defense. The jury did not believe his alibi. The BVLS “evidence” would not have
bolstered his alibi or otherwise create a reasonable probability that the verdict
would have been different.
Conclusion
Based on the foregoing, the judgment of the Superior Court is REVERSED.
This matter is REMANDED for reinstatement of the convictions. Jurisdiction is
not retained.
RIDGELY, Justice, dissenting:
I agree with the majority that the Superior Court erred in granting bail. I
also agree that Wright’s challenge to the admissibility of his confession is
procedurally barred. The majority and I also agree that the allege Brady violation
is not procedurally barred. I would affirm the Superior Court’s decision granting a
new trial because of a Brady22 violation. The State did not disclose exculpatory
evidence relating to an attempted robbery that same evening at Brandywine Village
Liquors (“BVLS”). Two young black males attempted to rob BVLS thirty to forty
minutes before Philip Seifert was murdered at the Hi-Way Inn. BVLS is only a
mile and a half away from the Hi-Way Inn. The police considered Wright as a
22
Brady v. Maryland, 373 U.S. 83 (1963).
11
suspect in the BVLS crime, but ruled him out based on a physical description by
the BVLS clerk, and his review of Wright’s photograph. In the proceedings below,
the Superior Court concluded that the evidence relating to BVLS should have been
produced to Wright’s counsel, but was not.
The majority finds no prejudice
resulting from this failure to disclose this exculpatory evidence. The Superior
Court did and so do I.
In Brady v. Maryland, the U.S. Supreme Court held that the State’s failure to
disclose exculpatory evidence violates a defendant’s due process rights. The State
must disclose the evidence to the defendant if:
“(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.”23 This Court has also described the third prong, the materiality prong,
as requiring that prejudice resulted from the failure to disclose.24
The record supports the Superior Court’s conclusion that evidence from the
BVLS attempt was exculpatory. The evidence of this close in time and proximity
robbery supports a reasonable inference that the BVLS perpetrators were also the
Hi-Way Inn perpetrators, and thus that Wright was not involved in either crime.
23
Starling v. State, 882 A.2d 747, 756 (Del. 2005) (citing Strickler v. Greene, 527 U.S. 263, 281–82,
119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).
24
See Atkinson v. State, 778 A.2d 1058, 1063 (Del. 2001) (citing Strickler v. Greene, 527 U.S. 263,
281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).
12
The fact that there is also evidence that is inculpatory of Wright—which the
Superior Court questioned—does not change the nature or the importance of this
exculpatory evidence. The crimes occurred 1.5 miles apart within 40 minutes of
each other.
The police report from the BVLS robbery, based on the clerk’s
description, stated:
In this case Suspect #1 is described as a black male, 5’11”, 160 lbs.,
slender build, 23-24 years old, was wearing all dark clothing except
for a white baseball cap, he was clean shaven and a thin face and was
armed with a long barrel blue steel handgun. Suspect #2 is described
as a black male, short, stock built, wearing a tan jacket, white or light
colored pants and white sneakers, no further description.25
George Hummell, a Hi-Way Inn customer, described the two men leaving
the Hi-Way Inn as being in their mid-twenties; one was approximately 6’0
weighing 170 pounds, and the other was approximately 5’8–5’10 weighing 160
pounds. Based on Hummel’s description and the description provided by Debra
Milner—a Hi-Way Inn employee—of the man seen in the bar earlier, police
described the taller man as “wearing possibly a red flannel shirt, black knit hat,
black waist type jacket, dark loose fitting pants [ ] and dark shoes.” The shorter
man was described as wearing “[a] baseball type cap, [and] dark clothing “NFD.”
The suspects for each were described as two black men in their early to midtwenties, one approximately six feet and one shorter, and one of whom was armed.
Although the BVLS crime was a mere attempt using a handgun, the overall
25
Appendix to Appellant’s Opening Brief at A5.
13
similarities between the crimes and the descriptions support the Superior Court’s
determination that the BVLS evidence was exculpatory.
Nor did the Superior Court err in finding that the State suppressed the BVLS
evidence.
A police report by Detective Edward Mayfield acknowledged the
possibility that the same suspects were involved in the BVLS and Hi-Way Inn
crimes:
[Detective Robert Moser] is a detective with the Wilmington Police
Department and assisted this writer with this investigation.
Detectives Merrill, Burke, Moser, and Writer met in regards to the
similarity of cases and the possibility of the same set of suspects in an
earlier attempted robbery.
Detectives Merrill, Burke, and Moser informed writer that on the
same date, Monday, 011491 about 40 minutes prior to the
robbery/homicide their department had an attempted robbery with
two, black, males with a handgun.
A supplement will be forthcoming from the Wilmington Police
Department.26
A contemporaneous news article also reported that police were considering a
connection between the BVLS and Hi-Way Inn crimes.27
The State argues that “there can simply be no suppression when a newspaper
of general circulation publishes multiple articles citing both State and Wilmington
police officers who were investigating a possible connection between two crimes.”
26
Appendix to Appellee’s Answering Brief at B916-17.
27
Appendix to Appellant’s Opening Brief at A30-31.
14
In essence, the State asks this Court to adopt the broad rule—adopted by some
jurisdictions28—that information published in a newspaper of general circulation
cannot be suppressed under Brady. This due diligence rule has been criticized as
inconsistent with Brady.29 The Supreme Court, in dicta, has explained that “[a]
rule declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a
system constitutionally bound to accord defendants due process.”30 In this case, we
need not decide whether a due diligence rule applies because the exculpatory
information included that Wright was ruled out as a suspect in the BVLS robbery,
and that information was not published in the newspaper. The newspaper articles
also did not include descriptions of the perpetrators or the existence of a videotape
and photographs.
The U.S. Supreme Court has explained that “the individual prosecutor has a
duty to learn of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.”31 Because “procedures and
regulations can be established to carry [the prosecutor’s] burden and to insure
28
United States v. Mullins, 22 F.3d 1365, 1371-72 (6th Cir. 1994); Cauthern v. Bell, 2010 WL
1408900, *36 (M.D. Tenn. Mar. 31, 2010); Commonwealth v. Paddy, 800 A.2d 294, 305 (Pa. 2002).
29
See generally Kate Weisburd, Prosecutors Hide, Defendants Seek: The Erosion of Brady Through
the Defendant Due Diligence Rule, 60 U.C.L.A. L. Rev. 138 (2012); Leslie Kuhn Thayer, The
Exclusive Control Requirement: Striking Another Blow to the Brady Doctrine, 2011 Wis. L. Rev.
1027 (2011).
30
Banks v. Dretke, 540 U.S. 668, 696 (2004).
31
Kyles v. Whitley, 514 U.S. 419, 437 (1995).
15
communication of all relevant information on each case to every lawyer who deals
with it, . . . the prosecutor has the means to discharge the government’s Brady
responsibility.”32
Here, the prosecutor was not aware of the BVLS crime and the suspected
similarities with the Hi-Way Inn crime. But, a detective in the Wilmington Police
Department was and acknowledged the similarities in his police report that ruled
Wright out as a suspect. This was the same detective who conferred with Moser
during Moser’s interrogation of Wright. The Superior Court expressly found that
Wright’s attorney had no knowledge of the BVLS evidence.
Wright’s claim
satisfies the second Brady factor of suppression of the evidence.
The third Brady factor is also met. To satisfy the third prong of a Brady
analysis, there must be a “‘reasonable probability’ that disclosure of the suppressed
evidence would have led to a different result.”33 “A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.”34
After
considering all the evidence, the Superior Court expressly so held. That finding
was not an abuse of discretion on the facts of this case.
The similarities between the Hi-Way Inn and BVLS crimes support a
determination that suppression of the BVLS evidence prejudiced Wright. The
32
Id. at 438.
33
Id. at 422; see also United States v. Bagley, 473 U.S. 667, 682 (1985).
34
Bagley, 473 U.S. at 682.
16
State contends the BVLS evidence would have been excluded under D.R.E. Rule
403, due to its tendency to confuse the jury.35 But, the evidence that a similar
crime was committed that evening by other perpetrators likely would have been
admissible as reverse Rule 404(b) evidence, notwithstanding Rule 403.36
For
example, in U.S. v. Stevens, the Third Circuit reversed a conviction where the
District Court had refused to admit evidence that a similar crime had been
committed by someone other than the defendant on the same evening. There, both
crimes “(1) took place within a few hundred yards of one another; (2) were armed
robberies; (3) involved a handgun; (4) occurred between 9:30 p.m. and 10:30 p.m.;
(5) were perpetrated on military personnel; and (6) involved a black assailant who
was described similarly by his victims.”37 The Third Circuit held that this “reverse
404(b) evidence” should have been admissible and that Rule 403 would not bar its
admission.38 Similarly, in Watkins v. State, this Court reversed, under Rule 403,
35
D.R.E. Rule 403 provides: “Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading
the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative
evidence.”
36
D.R.E. Rule 404(b) provides: “Evidence of other crimes, wrongs or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident.”
37
United States v. Stevens, 935 F.2d 1380, 1401 (3d Cir. 1991).
38
Id. at 1406.
17
the exclusion of evidence relating to another robbery unusually similar when the
defense was misidentification.39
The parallels between the two crimes here are similar to the parallels seen in
Stevens and Watkins. The Superior Court also properly considered the lack of
other evidence linking Wright to the Hi-Way Inn crime in finding a sufficient
probability that the BVLS evidence undermined confidence in the outcome. In
Jackson v. State, where this Court found a Brady violation but determined that it
was not material, there was “overwhelming evidence [that] established Jackson’s
guilt.”40 This case is different. Here, a Superior Court Judge has questioned the
credibility of Wright’s confession—and that is a separate issue from its
admissibility. Furthermore, there was no forensic evidence that placed Wright at
the scene of the crime, and no eyewitnesses were able to identify Wright as the
perpetrator—including Hummel.
The State also contends that because the police did not develop any further
links between the two crimes, the BVLS evidence did not qualify as Brady
material. The State argues that “the police neither saw nor developed any evidence
that linked the BVLS attempted robbery to the Hi-Way Inn robbery and murder.”
In Kyles v. Whitley, the U.S. Supreme Court rejected this precise formulation as a
39
Watkins v. State, 23 A.3d 151, 156 (Del. 2011).
40
Jackson v. State, 770 A.2d 506, 517 (Del. 2001).
18
test for Brady disclosure. The Supreme Court emphasized the prosecutor’s duty to
learn information obtained by police investigators for potential disclosure, and
stated: “any argument for excusing a prosecutor from disclosing what he does not
happen to know about boils down to a plea to substitute the police for the
prosecutor, and even for the courts themselves, as the final arbiters of the
government’s obligation to ensure fair trials.”41
The State claims that Wright suffered no prejudice from the suppression of
the BVLS attempted robbery because it was mentioned in pre-trial newspaper
articles discussing the Hi-Way Inn crime and Wright’s arrest. The State argues
that during the trial, the prosecutor repeatedly referenced the articles which
contained reference to the BVLS robbery. If true, then there would have been no
prejudice from the failure to disclose information already known by defense
counsel.42 Wright’s trial counsel affirmatively stated in an affidavit that he was
unaware of the BVLS robbery prior to or during the trial. Given this factual
dispute over the knowledge of defense counsel that had not been addressed
expressly by the Superior Court, we remanded the case to the Superior Court “for
the sole purpose of determining whether the non-disclosure of the BVLS attempted
41
Kyles, 514 U.S. at 438.
42
See Andrew D. Leipold and Peter J. Henning, Discovery by the Defendant—“Brady” Material,
2 Fed. Prac. & Proc. Crim. § 256 (4th ed.).
19
robbery was immaterial because Wright’s trial counsel had actual knowledge of the
BVLS attempted robbery.”43
The Superior Court has resolved the factual issue against the State and in
favor of Wright. The court found that the articles referencing the BVLS robbery
would have “provided notice to any reader, let alone an experience criminal
lawyer, that there was a possible link between the Hi-Way Inn Murder and the
events at BVLS.”44 The court also found that Wright’s defense counsel was aware
of the newspaper coverage. But the court made a crucial factual finding after an
evidentiary hearing. The court found credible defense counsel’s assertion that he
was not aware of the specific references to BVLS.45 The Superior Court accepted
his testimony and cited to his repeated denials of having knowledge of the BVLS
robbery, the fact that defense counsel would have exploited the evidence had he
been aware of it and defense counsel’s demeanor while on the witness stand. The
Superior Court also found important evidence that the prosecuting attorney was not
aware of the BVLS evidence at the time the Wright trial took place, and therefore
the Court could not “agree . . . that [defense counsel] must have read the articles
43
State v. Wright, 2012 WL 4377841 (Del. Sept. 25, 2012) (ORDER).
44
State v. Wright, 2012 WL 5964029, at *3 (Del. Super., Nov. 28, 2012).
45
Id. at *3-4.
20
when [the] prosecutor apparently did not read them either.”46
These factual
findings are entitled to deference by this Court for well-established reasons:
In any appeal, the factual findings of a trial judge will not be set aside
by a reviewing court unless those factual determinations are clearly
erroneous. . . . When factual findings are based on determinations
regarding the credibility of witnesses, however, the deference already
required by the clearly erroneous standard of appellate review is
enhanced. Only the trial judge can be aware of the variations in
demeanor or voice inflections that are frequently dispositive
influences upon the listener’s understanding of and belief in what is
said.47
In light of the evidence presented below and the Superior Court’s credibility
findings, it was not clearly erroneous for the Superior Court to find that Wright’s
counsel “was unaware of the exculpatory evidence stemming from the BVLS
attempted robbery at the time of [Wright’s] trial.”48 Given this factual finding,
Wright was prejudiced by the State not disclosing the BVLS evidence. Had the
disclosure been made, Wright’s trial counsel could have argued that the same
perpetrators of the BVLS robbery—a crime for which the police excluded Wright
as a suspect—likely committed the Hi-Way Inn murder as well. The jury never
heard this exculpatory argument because of the Brady violation which occurred. A
capital murder defendant is not entitled to a perfect trial, but he is entitled to a fair
46
Id. at *4.
47
Cede & Co. v. Technicolor, Inc., 758 A.2d 485, 491 (Del. 2000) (citing Anderson v. City of
Bessemer City, North Carolina, 470 U.S. 564, 575 (1985)).
48
Wright, 2012 WL 5964029 at *4.
21
one consistent with due process and the State’s duty to disclose exculpatory
evidence.
I respectfully dissent.
22
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