          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                             :      ID. No. 0808022374
                                              :      In and for Kent County
          v.                                  :
                                              :
                                              :      RK08-10-0891-01
                                              :      RK08-10-0892-01
JONATHAN L. STEVENS                           :      RK08-10-0894-01
                                              :      RK08-10-0895-01
                Defendant.                    :      RK08-10-0896-01
                                              :      RK08-10-0897-01

                                         ORDER
                              Submitted: August 9, 2017
                               Decided: October 6, 2017

          On this 6th day of October, 2017, having considered Defendant Jonathan
Stevens’ (hereinafter “Mr. Stevens’”) appeal from the Commissioner’s Findings
of Fact and Recommendations Report (hereinafter “Commissioner’s Report”)
pertaining to his amended motion for post-conviction relief, the State’s answer to
Mr. Stevens’ motion, the trial and supplemental record, and the Commissioner’s
Report, it appears that:
          (1)   On May 21, 2009, a jury convicted Mr. Stevens of Robbery in the
First Degree and Possession of a Firearm During the Commission of a Felony as
well as multiple other offenses.1 On July 14, 2009, the Court found Mr. Stevens
to be a habitual offender and sentenced him, inter alia, to 58 years in prison. The
Delaware Supreme Court affirmed this conviction on July 22, 2010.2 Mr. Stevens
then filed a timely motion for post-conviction relief on September 7, 2010. The

1
 For a detailed description of the crime see the Delaware Supreme Court’s decision on direct
appeal in Stevens v. State, 3 A.3d 1070 (Del. 2010).
2
    Id.
Superior Court, adopting the Commissioner’s Report, denied his motion on
January 30, 2013. Mr. Stevens appealed this decision to the Delaware Supreme
Court on June 28, 2013.
       (2)    The Supreme Court, on September 10, 2013, reversed and remanded
the Superior Court’s decision instructing the Court to appoint counsel for Mr.
Stevens’ motion. The Court appointed counsel on April 14, 2014, and his counsel
filed an amended motion for post-conviction relief on May 15, 2015. The
Commissioner reviewed Mr. Stevens’ amended motion and recommended
denying his request. Mr. Stevens then filed an appeal from the Commissioner’s
Report. In this Order, the Court addresses the amended motion and also the
written objections raised by the Defendant to the Commissioner’s Report. The
Court largely adopts the reasoning in the Commissioner’s Report and provides
further explanation necessary to address the Defendant’s objections to that Report.
       (3)    In Mr. Stevens’ amended motion, he argues that his trial counsel was
ineffective for failing to object, review, or request a curative instruction in relation
to the admission of Co-Defendant Jeffery Boyd’s (hereinafter “Mr. Boyd’s”)
statement offered pursuant to 11 Del. C. §3507 (hereinafter “3507 Statement”).
Second, he argues that the State’s failure to redact the 3507 Statement amounts to
prosecutorial misconduct in violation of Mr. Stevens’ due process rights. In his
third argument for relief, he maintains that the State committed a Brady violation
by failing to disclose its witness, Tamara Stratton’s (hereinafter “Ms. Stratton’s”)
criminal conviction. In his fourth argument, he maintains that he was denied a
fair trial due to cumulative due process errors committed during trial. Finally, Mr.
Stevens requests an evidentiary hearing to fully develop the factual record
regarding the claims raised in his motion. For the reasons set forth below, the
Court finds that Mr. Stevens is not entitled to an evidentiary hearing and is not
entitled to a new trial.

                                           2
          (4)          Before addressing the merits of Mr. Stevens’ claims, the Court must
first address whether his motion is procedurally barred, applying the version of
the Rule in effect at the time of filing his pro se motion.3 Rule 61 requires claims
for relief to be filed within one year of the conviction becoming final.4 Here, Mr.
Stevens’ conviction became final on July 22, 2010 when the Delaware Supreme
Court affirmed it. Mr. Stevens filed his pro se motion on September 7, 2010.
Accordingly, he timely filed his motion.
          (5)          However, the third procedural bar in Rule 61 states that grounds for
relief not asserted in the proceedings leading to a judgment of conviction are
thereafter barred unless the movant demonstrates: (1) cause for relief from the
procedural default; and (2) prejudice from a violation of the movant’s rights.5 Mr.
Stevens claims for relief are all based on arguments that were not asserted at trial,
and therefore, this procedural bar applies unless he can show a cause for relief and
prejudice.        Furthermore, Rule 61(i)(5) dictates that the procedural bars are
inapplicable “to 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.”6
          (6)          Here, Mr. Stevens’ four claims are premised, to some extent, on
allegations of ineffective assistance of counsel.7 Ineffective assistance of counsel
is sufficient cause for not having asserted these grounds for relief at trial and on
direct appeal. Accordingly, these claims are not subject to the procedural default
rule in part because the Delaware Supreme Court will not generally hear these


3
    Redden v. State, 150 A.3d 768, 772 (Del. 2016).
4
    Super. Ct. Crim. R. 61(i)(1).
5
    Id. at 61(i)(3).
6
    Rule 61(i)(5).
7
 One of the four claims involves allegations of prosecutorial misconduct regarding the same
evidentiary error as is the subject of an ineffective assistance of counsel claim.
                                                 3
claims on direct appeal. Additionally, a successful ineffective assistance of
counsel argument “that demonstrates a constitutional violation may be considered
an exception under Rule 61(i)(5).”8 However, Mr. Stevens must still meet the
standard set forth in Strickland v. Washington,9 and adopted by the Delaware
Supreme Court in Albury v. State,10 in order to succeed in his ineffective
assistance of counsel claims.
          (7)     In order to prevail on an ineffective assistance of counsel claim,
Strickland requires the defendant to first
          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 requires showing that
          counsel’s errors were so serious as to deprive the defendant of a fair
          trial, a trial whose result is reliable. Unless a defendant makes both
          showings, it cannot be said that the conviction . . . resulted from a
          breakdown in the adversary process that renders the result
          unreliable.11

          (8)    Mr. Stevens’ first claim in his amended motion is that his trial
counsel provided ineffective assistance of counsel by failing to object to the
admission of Mr. Boyd’s 3507 Statement. He argues that the State did not provide
an adequate foundation of admissibility because Mr. Boyd did not testify
regarding the truthfulness of his out-of-court statement.          According to Mr.
Stevens, without the proper foundation, the trial court should not have admitted
the statement. Therefore, by failing to object to its admission, trial counsel
provided ineffective assistance.


8
    State v. Flowers, 150 A.3d 276, 282 (Del. 2016).
9
    466 U.S. 668, 687 (1984).
10
     551 A.2d 53, 58 (1988).
11
     Strickland, 466 U.S. at 687.
                                                4
           (9)    The Delaware Supreme Court set forth the foundation that a party
must lay prior to the admission of a 3507 Statement. In Keys v. State, the Court
held that “[i]n order to offer the out-of-court statement of a witness, the statute
requires the direct examination of the declarant by the party offering the
statement, as to both the events perceived or heard and the out-of-court statement
itself.”12 The Court has interpreted this to require a two-part foundation: the
witness must testif[y] about both the events and whether or not they are true.”13
           (10)   At trial, the State’s foundation for Mr. Boyd’s statement included
asking him whether he answered the detective’s questions relating to a robbery at
the China King in Dover. Additionally, Mr. Boyd testified that he pled guilty to
the robbery and two other related charges14 and he stated that he discussed the
China King robbery with the detective.15 The State also asked Mr. Boyd whether
he answered the detective’s questions to the best of his ability at that time, to
which Mr. Boyd responded “at that time.”16 The State went on to ask Mr. Boyd
whether he responded to the detective’s questions “[f]reely? I mean nobody was
forcing you; you weren’t threatened; nobody beat you into answering the
questions? You were in the room with your mother and detective?” Mr. Boyd
responded “[y]eah, that’s right.”17
           (11) The Court finds that this testimony satisfied the foundation required
for admissibility of the 3507 Statement. Mr. Boyd first testified about the events.
While testifying, he discussed his involvement in the crime through discussing his
plea agreement.           He also testified that he discussed the crime with the

12
     337 A.2d 18, 20 n.1 (Del. 1975).
13
     E.g., Ray v. State, 587 A.2d 439, 443 (Del. 1991).
14
     Id. at B-5–B-8.
15
     Id. at B-8–B-11.
16
     Trial Transcript at B-10.
17
     Id.
                                                 5
investigating detective. This is sufficient to meet the first part of the foundational
requirement that the witness testify about the events.
       (12) Additionally, the State laid a proper foundation with regard to the
truthfulness of this statement.18            Mr. Boyd testified that he answered the
detective’s questions regarding the robbery to the best of his ability at the time.
Implicit in this statement is that Mr. Boyd answered the questions truthfully.
Accordingly, the State satisfied the second part of the foundational requirement.
As the State met both foundational aspects for admission of a 3507 Statement,
Mr. Boyd’s out-of-court statement was admissible, and Mr. Stevens’ trial counsel
did not provide ineffective assistance of counsel by failing to object to this
foundation. His trial counsel was not deficient in this regard, and Mr. Stevens’
first argument for relief is without merit.
       (13) Mr. Stevens next argues that his trial counsel was ineffective for
failing to review Mr. Boyd’s 3507 Statement prior to the State playing it at trial.
When the State played the recorded 3507 Statement to the jury, a portion of the
tape included statements by the detective that were clearly irrelevant and should
have been redacted. However, because Mr. Stevens’ trial counsel did not review
the tape prior to trial, these statements were played before the jury. Mr. Stevens


18
   While the Court finds that the State laid a proper foundation as to the truthfulness of the prior
statement, it is not clear whether the State was required to do so. In State v. Flowers, the
Delaware Supreme Court distinguished “between the right of a defendant’s attorney to insist
that the State established both foundational requirements prior to the admission of a Section
3507 statement into evidence and the right of a defendant’s attorney to make a professional
judgment not to object if the second foundation requirement is not established by the State.”
150 A.3d 276, 280 (Del. 2016)(emphasis added). The Delaware Supreme Court determined
that when an attorney does not object to the truthfulness foundation based on his or her
professional judgment, such a foundation is not required. Id. at 281. Here, trial counsel did
not object to the foundation and therefore it is possible that the failure to object rendered this
foundational requirement unnecessary. Additionally, the Delaware Supreme Court has
explained that “there is no requirement that the witness either affirm the truthfulness of the out-
of-court statement, or offer consistent trial testimony.” Moore v. State, 655 A.2d 308, 1995
WL 67104, at *2 (Del. Feb. 17, 1995) (Table).
                                                 6
argues that the portion of the tape that the State should have redacted was highly
prejudicial and therefore his failure to review the tape fell below the objective
standard of reasonableness and amounted to ineffective assistance of counsel.
           (14) The portion of the tape at issue includes the detective stating that he
thinks “you guys have done some other ones. I think he’s brought you along for
some other ones.”19 When Mr. Boyd responded with “[w]hat do you mean other
ones,” the detective clarified by saying “[s]ome other robberies in particular.”20
Mr. Boyd did not provide an answer and the detective followed up saying “I’m
actually pretty sure you guys have done some more stuff.”21 Mr. Boyd denied this
allegation saying “[o]h nah. Be honest with you I haven’t.”22 The detective then
asked Mr. Boyd “[w]hat else has he done” to which Mr. Boyd responded “[o]nly
thing I know about is when he had the truck.”23 At this point, Mr. Stevens’ trial
counsel objected. During a side bar discussion, the parties agreed that this
exchange was irrelevant and should not have been included. However, once the
State represented that there was no further irrelevant testimony, trial counsel
withdrew his objection. The judge asked whether counsel wanted a curative
instruction. Mr. Stevens’ trial counsel declined the offer.
           (15)   The Delaware Supreme Court has made it clear that only “the
voluntary out-of-court statement of a witness who is present and subject to cross-
examination” is admissible at trial.24 The Delaware Supreme Court determined
that “interrogations that contain both the witness’ statements and inadmissible



19
     Mr. Stevens’ amended motion for post-conviction relief at 13.
20
     Id.
21
     Id.
22
     Id.
23
     Id.
24
     Stevens v. State, 3 A.3d 1070, 1072 (Del. 2010).
                                                 7
statements by third parties must be redacted.”25 Such redactions must occur prior
to trial.26 During Mr. Stevens’ direct appeal, the Supreme Court determined that
the portion of the interview regarding the detective’s beliefs that the two were
involved in prior robberies was not admissible and should have been redacted.27
          (16) Here, it is clear that (1) the State should have redacted this portion of
the interrogation and that (2) Mr. Stevens’ trial counsel should have ensured that
such redactions were done prior to trial to avoid the jury hearing inadmissible
portions of the statement. Mr. Stevens’ trial counsel admitted that he did not
review the 3507 Statement prior to the State playing it at trial. Given the Delaware
Supreme Court’s clear guidance on this issue prior to Mr. Stevens’ initial trial, his
counsel’s failure to review the statement prior to its admission was deficient.
However, this deficient performance did not prejudice Mr. Stevens sufficiently to
warrant a new trial.
          (17) In order to satisfy the second prong of Strickland, Mr. Stevens must
show that the errors were so serious as to deprive the defendant of a fair trial.28 In
this regard, Mr. Stevens must show that the error had an effect on the judgment.29
Accordingly, the Court must determine “whether there is a reasonable probability
that, absent the errors, the factfinder would have had a reasonable doubt
respecting guilt.”30
          (18) While the statement implied that Mr. Stevens committed prior
robberies and was therefore prejudicial in that it could cause the jury to infer that
he has the propensity to commit robberies, this inadmissible statement does not

25
     Id. at 1073.
26
     Miles v. State, 985 A.2d 390, 2009 WL 4114385, at *3 (Del. Nov. 29, 2009) (Table).
27
     Stevens, 3 A.3d at 1077.
28
     Strickland v. Washington, 466 U.S. 668, 687 (1984).
29
     Id. at 691.
30
     Id. at 695.
                                               8
meet the standard of prejudice required by Strickland. Without this inadmissible
portion of the 3507 Statement, there was significant evidence for the jury to find
Mr. Stevens guilty beyond a reasonable doubt. As discussed above, Mr. Boyd’s
3507 Statement was admissible as the State laid a proper foundation (though the
detective’s statements and questions regarding prior robberies should have been
redacted). The section of the statement where Mr. Boyd implicated Mr. Stevens
in the robbery was admissible, however. Accordingly, this was evidence for the
jury to consider.
      (19) Additionally, the State had the victim testify at trial, and the victim
identified Mr. Stevens as the person who committed the robbery and the assault.
While Mr. Stevens’ trial counsel, on cross examination, established that the victim
was unable to identify Mr. Stevens in a photo array two weeks after the robbery
occurred, the jury was still able to consider the victim’s testimony that Mr.
Stevens was the person who robbed and assaulted him. Finally, Tamara Stratton,
who lent Mr. Stevens and his co-Defendant her truck, testified that the same night
of the robbery, she saw Mr. Stevens burning the cash register drawer taken from
the victims. The burnt drawer was recovered from the area she described to the
police. With these State witnesses convincingly implicating Mr. Stevens in the
robbery and assault, the absence of the offending portion of Mr. Boyd’s 3507
Statement would not make it reasonably probable that the trier of fact would have
had reasonable doubt as to Mr. Stevens’ guilt. Accordingly, he is unable to satisfy
the second prong of Strickland, and his claim for ineffective assistance of counsel
for failing to review Mr. Boyd’s 3507 Statement prior to trial is without merit.
      (20) Next, Mr. Stevens argues that his trial counsel provided ineffective
assistance of counsel because he did not request a curative jury instruction upon
hearing the inadmissible section of Mr. Boyd’s 3507 Statement. Mr. Stevens
argues that because all parties determined that this statement was inadmissible
and prejudicial during the side bar conference, his failure to accept the curative
                                        9
jury instruction was unreasonable. Mr. Stevens further argues that the decision to
not seek an instruction to avoid drawing more attention to the statement should
not be given deference because it allowed the jury to consider an improper
statement that was highly prejudicial. Additionally, Mr. Stevens argues that by
withdrawing his objection, Mr. Stevens was not able to raise this issue on appeal
thus depriving him of a fair appellate ruling on the issue.
           (21) Under the first prong of Strickland, it is not clear that his trial
counsel’s decision was deficient. In order to satisfy this prong of Strickland, Mr.
Stevens must show that his counsel’s performance was not reasonable
“considering all of the circumstances.”31        In making this decision, a court
reviewing “counsel’s performance must be highly deferential.”32 There is a
“strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance” meaning that there is a strong presumption
that a lawyer’s conduct is a part of a “sound trial strategy.”33
           (22) As noted above, this section of the interrogation was inadmissible
and prejudicial in that it was impermissible character evidence. However, as soon
as the State played the inadmissible section of Mr. Boyd’s 3507 Statement, Mr.
Stevens’ trial counsel objected. In his affidavit, trial counsel stated that he
objected to “stop the playing of the tape.” He further noted that at first he agreed
with the trial judge’s offer of an instruction. However, “upon further reflection,
[he] concluded that [he] would rather not have an instruction given because [he]
did not want to call any more attention to the comment than had already been
made, and especially in light of Co-Defendant Boyd’s response.”




31
     Id. at 688.
32
     Id. at 689.
33
     Id.
                                          10
          (23) Given the strong presumption that a lawyer’s conduct falls within
sound trial strategy, the Court finds that his decision to decline a curative
instruction was not unreasonable. The record reflects that trial counsel considered
the jury instruction and the circumstances of the statement in the context of the
overall case. Not wanting to draw attention to the statement of a police officer
implying that Mr. Stevens had committed other robberies was a judgment call by
an experienced attorney. The record reflects that this was part of a sound trial
strategy and therefore was not unreasonable performance. Accordingly, Mr.
Stevens’ ineffective assistance of counsel claim on that basis is also without merit.
          (24)     Even if the failure to accept a curative instruction amounted to
deficient performance, Mr. Stevens’ claim would still fail because of insufficient
prejudice in the context of the overall evidence. As discussed above, the absence
of this statement would not have created reasonable doubt with the jury regarding
Mr. Stevens’ guilt. Accordingly, he would not be able to meet the second prong
of Strickland, and his claim would still fail.
          (25) In Mr. Stevens’ second claim, he argues that the State’s failure to
redact Mr. Boyd’s 3507 Statement amounted to prosecutorial misconduct and
violated his Fourteenth Amendment right to due process. Mr. Stevens’ claim
again focuses on the section of Mr. Boyd’s statement that discussed prior
robberies. He claims that the failure to redact this portion of Mr. Boyd’s statement
amounted to a violation of his Federal and State constitutional right to a fair trial.
          (26) Mr. Stevens did not present this claim to the court during trial or on
direct appeal. Accordingly, it is procedurally barred unless he can show cause for
failing to present this argument previously and prejudice.34 Additionally, this
procedural bar will not apply if Mr. Stevens presents a “colorable claim that there
was a miscarriage of justice because of a constitutional violation that undermined

34
     Super. Ct. Crim. R. 61(i)(3).
                                           11
the fundamental legality, reliability, integrity, or fairness of the proceedings
leading to the judgment of conviction.”35
          (27) Here, Mr. Stevens correctly argues that the claim was not raised at
trial or on direct appeal because of a deficient action of trial counsel. However,
as noted above Mr. Stevens is unable to establish prejudice for the ineffective
assistance of counsel claim relating to the redaction of the 3507 Statement.
Accordingly, he can only proceed on this claim if he can satisfy Rule 61(i)(5).
Notably, this is a colorable claim because on direct appeal the Delaware Supreme
Court established that the State should have redacted this section of the statement.
The State’s failure to do so could have impinged on Mr. Stevens’ federal and state
constitutional right to a fair trial. As a consequence, the claim is not procedurally
barred.
          (28) As the claim is not procedurally barred, Mr. Stevens must show that
he is entitled to relief based on this prosecutorial misconduct. As noted above,
the State clearly should have redacted this portion of the 3507 Statement.
Mandatory case authority required this, and that authority predated Mr. Stevens’
trial. Accordingly, it was misconduct for the State to not have redacted this
section of the statement. However, under the circumstances of this case, the Court
declines to overturn Mr. Stevens’ conviction.
          (29) The Delaware Supreme Court has addressed prosecutorial
misconduct and established a test for determining when such actions require a
Court to overturn a conviction on the basis of that misconduct.36 In reviewing a
claim of prosecutorial misconduct, the Court must consider whether the



35
     Id. at 61(i)(5).
36
  See Hughes v. State, 437 A.2d 559, 571 (Del. 1981). While the Court in Hughes confronted
prosecutorial comments that amounted to prosecutorial misconduct, the Court does not see
any reason why the same test should not apply in this context.
                                           12
misconduct “prejudicially affected substantial rights of the accused.”37 The Court
is to consider: (1) “the closeness of the case;” (2) “the centrality of the issue
affected by the (alleged) error;” and (3) “the steps taken to mitigate the effects of
the error.”38
           (30) Here, as already discussed above, the Court does not think that this
was a close case. While it is true that there was no physical evidence other than
the recovered cash register drawer linking Mr. Stevens to the crime, his co-
defendant admitted to his part in the crime and implicated Mr. Stevens as also
being involved. The victim also identified Mr. Stevens in court as the perpetrator
of the robbery and assault. A separate witness testified that (1) she saw Mr.
Stevens burning the cash register drawer on the night of the robbery, and (2) that
Mr. Stevens and Mr. Boyd, who admitted his participation in the crimes, together
borrowed her truck on the night of the robbery. Also, while the jury learned that
the victim was unable to identify Mr. Stevens in a photo array two weeks after the
robbery occurred, he unequivocally identified him at trial and explained why he
was unable to identify him in the photo array. Accordingly, the jury was able to
rely on three witnesses who convincingly implicated Mr. Stevens in the crime.
There was significant direct and circumstantial evidence of his guilt. For these
reasons, the Court does not find that this was a close case.
           (31) With regard to the factor requiring evaluation of the misconduct’s
effect on the issues central to the case, there is certainly risk of that given the fact
that the detective’s inadmissible statements included impermissible character
evidence. On the other hand, the 3507 declarant’s denial of the interrogating
detective’s suggestions regarding other potential robberies somewhat lessens such
evidence from being considered central to the case.


37
     Id.
38
     Id.
                                           13
           (32) With regard to the final factor to consider, the Court notes that little
was done to mitigate the effect of this error. While trial counsel objected
immediately to stop the tape from being played, the Court, at counsel’s request,
did not instruct the jury regarding this statement. Nevertheless, despite the fact
that little was done to mitigate this error, on balance, this prosecutorial misconduct
did not prejudice Mr. Stevens’ right to a fair trial. This was not a close case and
when weighing the three required factors in their totality, the Court finds that Mr.
Stevens does not establish that this prosecutorial misconduct requires post-
conviction relief.
           (33) Mr. Stevens’ third claim for post-conviction relief asserts that the
State committed a Brady violation by failing to disclose Tamara Stratton’s
criminal conviction for shoplifting in 2000.             Mr. Stevens argues that this
amounted to a violation of his due process rights under both the Federal and State
constitutions.
           (34) The Court must first determine whether the State committed a Brady
violation and then, if there was a violation, whether such an error requires post-
conviction relief. To determine whether there is a Brady violation, the Court
performs a three prong analysis.39 The Court must determine whether: “(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.”40
           (35) Here, the information regarding Ms. Stratton’s criminal conviction
for shoplifting in 2000 would be evidence that is favorable to Mr. Stevens for
purposes of impeachment. A criminal conviction for shoplifting that is nine years
old at the time of trial was admissible because this misdemeanor charge involves


39
     Starling v. State, 882 A.2d 747, 756 (Del. 2005).
40
     Id.
                                                14
dishonesty. Accordingly, this information could have been used to impeach her.
Furthermore, there is no evidence of record that would indicate that the State
disclosed this information to Mr. Stevens. Accordingly, it is likely that this
evidence was suppressed by the State.41
          (36) Mr. Stevens must show that he suffered prejudice from the State’s
failure to disclose this evidence. Mr. Stevens argues that this evidence would
have impacted the credibility of Ms. Stratton’s testimony and made the jury less
likely to believe her. He also contends that she was a key witness of the State.
Therefore, without this evidence, he suffered prejudice. Namely, using this
evidence to attack her credibility would have made it more likely that the jury
would not find her less credible. As the Court finds that there is arguably a Brady
violation, post-conviction relief is not procedurally barred by Rule 61.42
Accordingly, the Court will consider its merits.
          (37) Assuming that this did amount to a Brady violation, it does not
amount to grounds for post-conviction relief. In order for a Brady violation to
warrant post-conviction relief, the evidence suppressed must undermine the
confidence in the verdict.43 The Court finds here that the failure to disclose Ms.
Stratton’s prior shoplifting conviction does not undermine the Court’s confidence
in the verdict. As already discussed, this was not a close case. Accordingly,
impeaching Ms. Stratton with a prior shoplifting conviction from nine years
earlier would not have impacted this verdict. Accordingly, Mr. Stevens is not
entitled to post-conviction relief on this claim.




41
   Consistent with the Court’s finding that an evidentiary hearing is not necessary, as with the
other asserted errors, the Court assumes that the Brady material was not given to the Defense.
Accordingly, no further evidence is necessary.
42
   E.g., Jackson v. State, 770 A.2d 506, 514 (Del. 2001).
43
     Id. at 514–15.
                                              15
          (38) Mr. Stevens’ final argument is that cumulative due process errors
require post-conviction relief. Mr. Stevens points the Court to case law where the
impact of one error standing alone might not be a basis for reversal but the
cumulative impact of all the errors warranted relief.44 He maintains that the
several errors committed at his trial cumulatively amounted to a constitutional
violation.
          (39) This claim was not raised during trial, on direct appeal, or in Mr.
Stevens’ original motion. Accordingly, it is procedurally barred unless he can
show cause and prejudice or that it is 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.”45 Mr. Stevens argues that this claim is not barred
because it includes claims of ineffective assistance of counsel which are not
normally raised on direct appeal and it asserts a violation of due process under the
United States Constitution. The Court finds that this argument is procedurally
barred because he cannot show prejudice or that this amounts to a colorable claim
regarding a constitutional violation.
          (40) The Court, in reviewing all of Mr. Stevens claims, has determined
that none are sufficient to warrant post-conviction relief.      While the Court
acknowledges that errors were made during the course of Mr. Stevens’ trial,
including the failure to redact the inadmissible portion of Mr. Boyd’s 3507
Statement, defense counsel’s failure to ensure the redaction occurred, and a Brady
violation, none of those errors caused any reasonable likelihood of a changed trial
outcome. Furthermore, the Court finds that the outcome of this trial would not
change in light of the cumulative impact of these errors. Accordingly, the Court


44
     Wright v. State, 405 A.2d 685, 690 (Del. 1979).
45
     Rule 61(i)(3) and (5).
                                               16
finds that the verdict is worthy of confidence despite the cumulative impact of
these errors. Therefore, Mr. Stevens’ final argument is procedurally barred
because he is unable to show prejudice and because it does not amount to a
colorable claim of a constitutional violation.
      (41) The Court finds that Mr. Stevens’ several arguments for post-
conviction relief are all either procedurally barred or without merit. On the record
before the Court, the Court is comfortable making this decision in the absence of
a further evidentiary hearing. The Commissioner’s recommendation for the lack
of a need for an evidentiary hearing is accordingly accepted.
      THEREFORE, after reviewing the record and considering the
Commissioner’s Report and Recommendation, which is adopted in part,
excepting only the different findings and analysis as outlined herein, it is clear
that Mr. Stevens is not entitled to post-conviction relief, and his motion is
therefore DENIED.
      IT IS SO ORDERED.



                                                     /s/Jeffrey J Clark
                                                            Judge


      JJC:jb




                                        17
