           IN THE SUPREME COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                       §
                                         §     No. 52, 2016
      Plaintiff Below-                   §
      Appellant,                         §     Court Below: Superior Court
                                         §     of the State of Delaware
      v.                                 §
                                         §     ID No. 9904019329
LUIS E. REYES,                           §
                                         §
      Defendant Below-                   §
      Appellee.                          §


                         Submitted: November 16, 2016
                           Decided: January 19, 2017



Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and
SEITZ, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. REVERSED AND REMANDED FOR
SENTENCING.

Elizabeth R. McFarlan, Esquire (Argued), Maria T. Knoll, Esquire, Delaware
Department of Justice, Wilmington, Delaware for Appellant.

Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware for
Appellee.




VAUGHN, Justice:
                                     I. INTRODUCTION

          In 2001, Luis E. Reyes was convicted of two counts of Murder in the First

Degree, two counts of Possession of a Firearm During the Commission of a Felony, and

two counts of Conspiracy in the First Degree in what came to be known as the

Rockford Park Murders. After a penalty hearing, he was sentenced to death. This

Court affirmed Reyes’ convictions and sentences on direct appeal.1

          On March 25, 2004, Reyes filed a timely motion for postconviction relief. On

January 27, 2016, after a lengthy procedural process, during which the trial judge

retired and the postconviction proceeding was assigned to his successor, the Superior

Court issued an opinion granting Reyes’ motion and vacating his convictions and

sentences.2 The Superior Court found that several errors occurred during the guilt

phase of Reyes’ trial. It found that Reyes’ election not to testify was not a knowing

and intelligent decision; that testimony which Reyes had given in a previous case,

admitted in the State’s case in chief in this case, included inadmissible character

evidence and undermined Reyes’ decision not to testify; that the trial court’s deferral

of co-defendant Luis Cabrera’s sentencing until after Reyes’ trial deprived Reyes of

important exculpatory testimony from Cabrera; that the testimony of a State’s witness,


1
    Reyes v. State, 819 A.2d 305, 318 (Del. 2003).
2
    State v. Reyes, 2016 WL 358613, at *38 (Del. Super. Ct. Jan. 27, 2016).

                                                  2
Roderick Sterling, was unreliable, inadmissible hearsay; and that the State violated

Brady v. Maryland3 by failing to disclose Sterling impeachment evidence. The

Superior Court further broadly found that none of the procedural bars of Superior Court

Criminal Rule 61(i)(1-4) applied to any of these findings because “there was a

miscarriage of justice pursuant to Rule 61(i)(5), [and] . . . reconsideration of otherwise

procedurally barred claims is warranted in the interest of justice pursuant to Rule

61(i)(4).”4

         The Superior Court also found that Reyes’ trial attorneys were ineffective for

failing to establish that Sterling’s testimony was based on hearsay; by failing to call

Ivan Galindez as a witness; by failing to request a missing evidence instruction

regarding a document called the Sterling Letter; and by failing to offer into evidence

statements Cabrera made in an interview with one of Reyes’ trial attorneys.

         In addition, Reyes contends that his trial attorneys were ineffective in ways not

ruled upon by the Superior Court: in not moving in limine to obtain a ruling that a prior

murder conviction on Reyes’ record was not admissible for impeachment under

Delaware Rule of Evidence (“DRE”) 609(a)(1) if Reyes testified; in not presenting a

thorough and accurate objection to a portion of the above-mentioned Reyes’ prior


3
    373 U.S. 83 (1963).
4
    Reyes, 2016 WL 358613, at *4.

                                             3
testimony in which Reyes admitted to lying to his girlfriend; in failing to request Brady

material regarding Sterling; and in appellate counsel’s failing to raise the Sterling

hearsay issue on direct appeal.

      The State claims that the Superior Court committed error in all of its rulings.

The State also contends that the other ineffective assistance of counsel claims asserted

by Reyes are without merit. We have carefully reviewed each of the issues and

concluded that the State is correct. For the reasons which follow, the Superior Court’s

grant of Reyes’ postconviction motion is reversed.

                  II. FACTS AND PROCEDURAL HISTORY

      The facts as they appear in this Court’s 2003 opinion on direct appeal, with

footnotes omitted, are as follows:

                   Reyes, and his co-defendant, Luis Cabrera, were
             charged with the murders of Vaughn Rowe and Brandon
             Saunders. The murders occurred on January 20, 1996. The
             defendants were not arrested until 1999. The cases were
             severed and the defendants were tried separately. Cabrera
             went to trial first and was convicted, as charged, and
             sentenced to death.

                   Early in the morning of January 21, 1996, the bodies
             of two teenagers were discovered by a passerby in a
             wooded section of Rockford Park in Wilmington. The
             bodies of Vaughn Rowe and Brandon Saunders were in a
             shallow grave that was covered by a maroon bed sheet.
             Rowe and Saunders had, according to expert testimony,


                                           4
been killed about twelve to eighteen hours before their
bodies were discovered.

       Both teens had been shot in the back of the head.
Rowe also had internal injuries to his spleen, liver and left
kidney as well as facial lacerations. The additional injuries
suffered by Rowe were consistent with the repeated use of
blunt force. Some of the injuries were inflicted by a belt
buckle.

       The police recovered several pieces of evidence at the
scene including bullets, four small bags of marijuana found
in the victim Rowe’s clothes, and a watch Rowe was
wearing that had a memory bank of telephone numbers. The
memory bank listed a telephone number that corresponded
with the residence of Luis Cabrera’s father.

      At the victim Saunders’ home, the police also
recovered a business card for “ISS Servicesystem, Inc.”
Handwritten on the card was “434-6154 Big Lou.” Both
Cabrera and Reyes worked at ISS and some people referred
to Cabrera as “Big Louie” and Reyes as “Little Louie.”

        In March 1996, the police learned that the bullet,
which killed Vaughn Rowe, came from a 38-caliber gun.
The bullet had certain identifiable markings on it. A year
later, in March 1997, police were investigating the unrelated
murder of a man named Fundador Otero, who was killed in
January 1995. As part of that investigation, the police
conducted two searches at Luis Cabrera’s father’s house.
During that search, they found a 38-caliber pistol and a
single maroon fitted bed sheet. When the 38-caliber pistol
was test fired, the test bullet had markings almost identical
to the bullet found in Vaughn Rowe’s head.

      On or about January 20, 1998, the police interviewed
Roderick Sterling, an inmate at Gander Hill prison. Sterling

                             5
advised the police that he had overheard Reyes having
conversations with Ivan Galindez, who was Sterling’s
cellmate. At the time of those conversations, Reyes was
also incarcerated at the Gander Hill prison, serving a
twelve-year sentence for the Otero murder.

       Sterling heard Reyes admit to Galindez his
involvement in the Saunders-Rowe double murder, along
with a man named Luis Cabrera. Sterling testified that he
had overheard Reyes tell Galindez that Rowe and Saunders
had “shorted” Cabrera on a marijuana deal. Sterling also
stated that Reyes said he beat someone with a belt in the
basement of a house at “601 something.” He also heard
Reyes say that a neighbor came down during the beating
because there was so much noise coming from the
basement.

       Sterling heard Reyes recount to Galindez how he and
Cabrera decided to take the person they were beating from
the basement to a park. The victim was transported in the
trunk of a black BMW. Reyes and Cabrera then picked up
the second victim so that they could kill both of them at the
same time. Sterling heard Reyes say that once he and
Cabrera picked up the second victim, they went to Canby
Park. Arriving there, they made both of the victims lie on
the softball field and shot them. The bodies were then taken
to Rockford Park and left there.

       At the time of the murders, Cabrera and Reyes lived
together at 610 W. 20th Street in a three-story house.
Cabrera and Reyes lived on the second floor. The tenant on
the first floor was Donna Ashwell. Clavel Clamamont and
Maribel Skjefte lived on the third floor.

      Following Sterling’s interview, the police located the
female tenants of Reyes’ former apartment building, Donna
Ashwell and Maribel Skjefte. Although they were

                             6
interviewed two and a half years after the murders, the
women remembered a fight in the basement. Donna
Ashwell remembered that the fight occurred just a day or
two before the two bodies were found in Rockford Park.
The women recalled hearing the voices of Luis Cabrera and
Luis Reyes during the fight. They also heard the voice of a
third person, which they did not recognize.

       At trial, both Ashwell and Skjefte testified. Ashwell
recalled that on a Saturday night in January 1996, she heard
what she described as a fight in the basement of her
building. Ashwell also heard an argument. One voice,
which sounded like that of Cabrera, asked another person a
question. After a negative response to the question, Ashwell
heard a metal crashing noise. Ashwell then went to the
basement and banged on the door. Reyes came to the door
and Ashwell said to him, “Take the fight elsewhere or I’ll
call the police.” Reyes asked her not to do that and told her
they would take the fight elsewhere.

       Skjefte testified that she went down to the basement
shortly after Ashwell did. She stated that Cabrera answered
the door and told her they were taking care of some
business. Skjefte also heard Reyes’ voice. Shortly
thereafter, Cabrera came into the first floor foyer. He
apologized to the women and said they were leaving.

      Several items of physical evidence linked Rowe and
Saunders to Cabrera, albeit indirectly. The first item was a
watch that Rowe was wearing at the time of his death. That
watch had a memory bank of phone numbers, one of which
was for a woman. That telephone number was for the
Wilmington residence of Luis Cabrera’s father, Luis
Cabrera, Sr. The second item of evidence was an ISS
Servicesystem, Inc. business card found at the Saunders
family home. On it was written a telephone number and the


                             7
words “Big Lou.” Both Cabrera and Reyes worked at ISS
and were known as “Big Louie” and “Little Louie.”

       On February 3, 1996, shortly after the murders,
Cabrera returned Saunders’ pager to a Page One store in
Wilmington. The pager was identified as Saunders’ by a
code number inside it. Page One does not generally give
receipts for returned pagers, however, when Cabrera
returned Saunders’ pager, he also bought a new one,
generating a receipt. Cabrera’s name and address appear on
the back of the receipt.

       Cabrera’s estranged wife testified for the State at
Reyes’ trial. She stated that they had both worked for a
cleaning service that was located on Silverside Road. The
business card with “Big Lou” on it found in Saunders’
bedroom had a Silverside Road address. Cabrera’s wife
also testified that she had owned a set of bed sheets that
were similar to the single maroon sheet that was found
covering the victim’s bodies. When she separated from
Cabrera, she left the maroon sheets behind for Cabrera.
When police searched Mr. Cabrera Sr.’s house, they found
a maroon sheet on the floor in a pile of laundry. Mr.
Cabrera Sr. said it was his son’s sheet. Both the sheet found
during the search and the one covering the bodies had nearly
identical labels.

      Another inmate at the Gander Hill prison, Waymond
Wright, testified Reyes told him that he had gone to school
with Saunders and Rowe. Wright testified that Reyes told
him that after the murder several classmates hugged Reyes.
Commenting on this, Reyes told Wright, “if they only
knew.” Wright also testified that when Reyes admitted to
the murders, he said the victims were “short” on a pound of
marijuana. Wright’s testimony about Reyes’ account of



                             8
               how the murders were committed was similar to the events
               attributed to Reyes by Sterling’s testimony.5

       After Reyes filed his initial motion for postconviction relief, amended motions

were filed, with the last being filed on October 13, 2009. An evidentiary hearing was

conducted by the trial judge over a period of approximately nine days between May 8,

2012 and April 1, 2013. Depositions were taken and made a part of the record.

Shortly after the conclusion of the evidentiary hearing, the trial judge retired. As

mentioned, the case was then assigned to his successor. Briefing then occurred, and

after briefing was completed, the successor judge requested supplemental briefing

relating to Reyes’ election not to testify, a matter which theretofore had not been an

issue. Supplemental briefing was completed on November 23, 2015 and the Superior

Court then issued its opinion. This appeal by the State followed.

                             III. STANDARD OF REVIEW

       We review a Superior Court judge’s decision to grant postconviction relief for

an abuse of discretion.6        To the extent the parties raise questions of law or

constitutional violations, they will be reviewed de novo.7




5
  Reyes, 819 A.2d at 308-10.
6
  Ploof v. State, 75 A.3d 840, 851 (Del. 2013); Norcross v. State, 36 A.3d 756, 765 (Del. 2011).
7
  Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010).

                                                9
                                 IV. DISCUSSION

                           Reyes’ Election Not to Testify

      The first ground for relief addressed by the Superior Court relates to Reyes’

election not to testify in the guilt phase of his trial. At the conclusion of the defense

case in the guilt phase, the trial judge was informed that Reyes elected not to testify.

The trial judge engaged Reyes in the following colloquy:

             Court:        Mr. Reyes.
             Reyes:        Yes.
             Court:        Do you mind standing Mr. Reyes? Mr.
                           Reyes, your attorneys have rested your case.
                           Do you understand that?
             Reyes:        Yes, sir.
             Court:        That means that they have finished
                           presenting any evidence that they wish to
                           present on your behalf. Have you fully
                           consulted with them as far as you’re
                           concerned about the evidence which has
                           been presented or not presented?
             Reyes:        Yes, I have.
             Court:        You’re satisfied with the evidence that has
                           been presented and/or not presented at this
                           point?
             Reyes:        Yes.
             Court:        Okay. Now, Mr. Reyes, obviously you
                           chose not to take the witness stand in
                           connection with the presentation of your
                           case; correct?
             Reyes:        Correct.
             Court:        Do you understand, of course, that you had a
                           constitutional right to take the witness stand
                           or not take the witness stand?

                                           10
Reyes:   Yes, I do.
Court:   And you chose not to take the witness stand?
Reyes:   That is correct.
Court:   Did you consult with your attorneys about
         that decision?
Reyes:   Yes, I did.
Court:   Do you understand that they can only advise
         you, and I’m not asking what their advice is,
         but whatever their advice was, it is only
         advice; do you understand that?
Reyes:   Yes, sir.
Court:   And, by that, I mean, do you understand that
         the decision to take the witness stand or not
         take the witness stand is yours alone and not
         your lawyers?
Reyes:   Yes, I do.
Court:   Was it your decision alone not to take the
         witness stand?
Reyes:   Yes, it was, altogether.
Court:   Were there any threats, promises or other
         matters made in connection with that
         decision?
Reyes:   No, sir.
Court:   Do you believe the decision on your part was
         a voluntary one?
Reyes:   Yes, I do.
Court:   Do you believe that you were adequately,
         from your perspective, advised about the
         choices of taking the witness stand or not
         taking the witness stand?
Reyes:   Yes, I do.
Court:   Do you feel you had sufficient time to talk to
         your lawyers about the decision to take – to
         not take the witness stand?
Reyes:   Yes, sir.



                        11
                 Court:        Do you wish to consult with them any further
                               about this decision about not taking the
                               witness stand?
                 Reyes:        No, sir.
                 Court:        And, are you satisfied in your mind as you
                               stand there now, having listened to all this
                               case, including the presentation of your
                               evidence over the last few days that you
                               made the correct decision?
                 Reyes:        Yes, I did.
                 Court:        All right.8

         Despite this colloquy, the Superior Court in its postconviction opinion ruled that

Reyes’ decision to waive his right to testify was not a knowing and intelligent waiver

of that right. The ruling was based upon a comment which Reyes made during

allocution near the end of the penalty phase of his trial. During allocution, Reyes

stated:

                 I didn’t get on the stand during trial because I didn’t want
                 what I was presently incarcerated for to come up. I felt that
                 by that coming out, you, the jury, would automatically think
                 I was guilty. Therefore, I chose not to take the stand.9

         At the time of his trial, Reyes was serving a sentence for Murder in the Second

Degree and other offenses arising from the 1995 murder of Fundador Otero, a murder

in which Cabrera was also involved. The State presented the Otero murder as an

aggravating factor in the penalty phase. In its postconviction opinion, the Superior

8
    App. to Appellant’s Opening Br. at 93-94.
9
    Id. at 135.

                                                12
Court interpreted Reyes’ comment during allocution as indicating that he had wanted

to testify during the guilt phase to profess his innocence, but decided not to do so in

order to avoid having the jury hear of the Otero murder in either the guilt or the penalty

phase. Since the commission of a prior murder is something that would be admissible

as an aggravating factor as a matter of course in a penalty phase, the Superior Court

reasoned that Reyes’ decision not to testify at the guilt phase was based on a

misunderstanding and that the decision was therefore not knowing and intelligent.

Specifically, the Superior Court explained its reasoning as follows:

                While it appears that Reyes understood the right that he
                waived in waiving his right to testify on his own behalf,
                Reyes did not understand the consequences of choosing to
                forego that right. Reyes’ explanation to the jury during the
                sentencing phase of the Reyes Rockford Park Trial that he
                wanted to testify to profess his innocence during the guilt
                phase, but did not do so to avoid presentation to the jury
                about Reyes role in the Otero murder shows that Reyes
                expectation was that such evidence would not be admitted
                . . . . In making the decision not to testify, Reyes should
                have had the opportunity to consider that evidence regarding
                his involvement in the Otero murder would be admitted
                during the penalty phase as an aggravating factor.10

         The State contends that consideration of this issue by the Superior Court in this

postconviction proceeding is barred under then existing Superior Court Criminal Rule

61(i)(4) as formerly adjudicated by the trial judge through his colloquy with Reyes at

10
     Reyes, 2016 WL 358613, at *6.

                                            13
trial.11 We agree. It is clear from the transcript of the colloquy that the trial court

determined that Reyes had fully consulted with his attorneys concerning the evidence

which had been presented or not presented on his behalf; that Reyes was satisfied with

the evidence that had been presented; that Reyes understood that he had a

constitutional right to take the witness stand or not take the witness stand; that Reyes

had consulted with his attorneys about his decision not to testify; that Reyes understood

that the decision whether to testify or not was his decision and his decision alone; that

his attorneys’ role was limited to giving him their advice; that the decision whether to

testify was, in fact, being made by Reyes himself; that no one had made any threats or

promises to Reyes on the matter; that the decision was a voluntary one on Reyes’ part;

that Reyes believed the advice he had received from his counsel on the matter was

adequate; that Reyes had sufficient time to talk to his lawyers about the decision; that

Reyes felt no need to talk with his counsel further about the decision; and that Reyes

was satisfied that he was making the correct decision.

        The natural conclusion to be drawn from this careful and thorough colloquy is

that the trial court made a determination, an adjudication, that Reyes’ election not to


11
   Rule 61(i)(4) read as follows at all times relevant to this case: “Former adjudication. Any ground
for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of
conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding,
is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.” Super.
Ct. Crim. R. 61(i)(4) (2004).

                                                   14
testify was knowing, intelligent and voluntary. Moreover, it is not at all clear in the

quoted comment from his allocution that Reyes would have taken the stand in the guilt

phase “to profess his innocence”12 if he had known that the Otero murder would be

admitted into evidence at the penalty phase. It appears that he simply gave the jury his

reason why he did not testify in the guilt phase, that is, he did not wish to risk that his

testifying might make the Otero murder, which, like the one in this case, involved both

Cabrera and him, admissible for impeachment or some other purpose at the guilt phase

where the jury would determine his guilt or innocence. Reyes never claimed to be

under any misapprehension concerning his decision not to testify at any part of his trial

through sentencing, his direct appeal, or even in this postconviction proceeding until

the Superior Court raised the issue sua sponte near the conclusion of the proceeding

in that court.

          “Generally, the waiver of a constitutional right will be intelligent and voluntary

if the defendant is aware of the right in question and the likely consequences of

deciding to forego that right.”13 The admission of the Otero murder evidence at the

penalty phase was not a consequence of Reyes’ decision not to testify in the guilt

phase. The careful colloquy which the trial judge conducted with Reyes established


12
     Reyes, 2016 WL 358613, at *6.
13
     Davis v. State, 809 A.2d 565, 569 (Del. 2002).

                                                 15
that his election not to testify was a knowing, intelligent and voluntary decision. Since

Reyes’ election not to testify was knowing, intelligent and voluntary, the “interest of

justice” exception in Rule 61(i)(4) is not reached.14 It was error for the Superior Court

to find that Reyes election not to testify was not knowing, intelligent and voluntary.15

       Reyes contends that his trial attorneys were ineffective for not moving in limine

to obtain a ruling that Reyes’ Otero conviction was not admissible for impeachment

purposes under DRE 609(a)(1) so that he would have had the benefit of that ruling in

making his decision whether or not to testify. He contends that such a motion would

likely have been granted, and he could then testify with the assurance that the Otero

conviction would not be admitted for impeachment during cross-examination.

       To prevail on a claim of ineffective assistance of counsel, the defendant must

satisfy the two-prong standard of Strickland v. Washington.16 This test requires that

he prove that trial counsel's performance was objectively unreasonable and that the

14
   The “miscarriage of justice” relief from the Rule 61 bars does not apply to any claim barred by Rule
61(i)(4). Super. Ct. Crim. R. 61(i)(5).
15
   We also observe that the Superior Court’s Rule 61 analysis here, as well as in other aspects of its
opinion, was flawed in another way. The Superior Court applied the Rule 61 exceptions broadly to
all of Reyes’ claims, without articulating how each exception applied to each claim. In addition, it
took certain claims that Reyes had framed in his post-evidentiary hearing brief as support for
ineffective assistance of counsel and transformed them into support for a freefloating assertion of
miscarriage of justice at the Reyes trial. Rule 61 analysis should proceed claim-by-claim, as indicated
by the language of the rule. Super. Ct. Crim. R. 61(i)(2) (“Any ground for relief”); id. 61(i)(3) (“Any
ground for relief”); id. 61(i)(4) (“Any ground for relief”); see generally Bradley v. State, 135 A.3d
748 (Del. 2016) (analyzing individual claims for being barred or not barred); Sykes v. State, 2015 WL
417514 (Del. 2015) (same).
16
    466 U.S. 668, 686 (1984).

                                                 16
defendant was prejudiced as a result.17 Under the first prong, judicial scrutiny is “highly

differential.”18 Courts must ignore the “distorting effects of hindsight” and proceed

with a “strong presumption” that counsel’s conduct was reasonable.19 The Strickland

court explained that “a court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct.”20

       Under the second prong, “[i]t is not enough for the defendant to show that the

errors had some conceivable effect on the outcome of the proceeding.”21 In other

words, “not every error that conceivably could have influenced the outcome

undermines the reliability of the result of the proceeding.”22 “Some errors will have a

pervasive effect . . . , and some will have had an isolated, trivial effect.”23 The movant

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

errors, the result of the proceeding would have been different.”24 “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”25 The


17
    Id. at 688, 694.
18
    Id. at 689.
19
    Id.
20
    Id. at 690.
21
    Id. at 693.
22
    Id.
23
   Id. at 695-96.
24
   Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 694).
25
   Strickland, 466 U.S. at 694.

                                                17
“court must consider the ‘totality of the evidence,’ and ‘must ask if the [movant] has

met the burden of showing that the decision reached would reasonably likely have been

different absent the errors.’”26

       We find that Reyes cannot establish that there is a reasonable probability that the

result of his trial would have been different if a motion in limine regarding his prior

conviction had been filed. The manner in which the trial court would have addressed

such a motion involves speculation. A trial court has no obligation to rule upon such

a motion before the defendant testifies. The trial court may have deferred the motion

until the conclusion of Reyes’ direct examination, if he did elect to testify. A trial court

generally has the option “to defer ruling on evidentiary issues until the evidence is

actually offered for admission.”27 “This is particularly true under Rule 609(a)(1) ,

which directs the court to weigh the probative value of a prior conviction against the

prejudicial effect to the defendant. To perform this balancing, the court must know the

precise nature of the defendant’s testimony, which is unknowable” until he actually

testifies.28




26
   Swan v. State, 28 A.3d 362, 384 (Del. 2011) (quoting Strickland, 466 U.S. at 695-96).
27
   Dawson v. State, 581 A.2d 1078, 1087 (Del. 1990) (quoting United States v. Burkhead, 646 F.2d
1283, 1286 (8th Cir. 1981)).
28
   Fennell v. State, 691 A.2d 624, 626 (Del. 1997) (quoting Luce v. U.S., 469 U.S. 38, 41 (1984)).

                                               18
      Even if the trial court had granted a motion in limine prior to Reyes’ testimony,

the ruling would have been subject to change as the evidence unfolded. If Reyes had

testified, he would have been subject to vigorous cross-examination concerning his

relationship with Cabrera. Whether he might have given an answer that rendered the

Otero murder admissible for impeachment or another relevant purpose is speculation.

Under these circumstances Reyes has failed to establish prejudice from his trial

attorneys’ failure to file a motion in limine regarding his Otero conviction.

                               Reyes’ Prior Testimony

      The next ground for relief addressed by the Superior Court relates to testimony

which Reyes gave in the State’s case in chief in Cabrera’s earlier trial for the Otero

murder. This prior testimony was presented during the State’s case in chief in the guilt

phase of the trial. The specific testimony at issue is:

             Q. Okay. And you don’t recall telling your girlfriend that
             or do you recall telling your girlfriend that you were with
             Luis and somebody came over to the house and you went
             down the basement and beat them up?
             A. No. I don’t recall telling her that. Not that moment. I
             told her that another time.
             Q. Another time?
             A. Yes.
             Q. When was that?
             A. When we was at our house.
             Q. So you lied to your girlfriend when you were at your
             house?
             A. Yes.

                                          19
                 Q. And when was that?
                 A. I couldn’t give you an exact date.29

          The Superior Court in this postconviction proceeding found that this evidence

was improper and objectionable. Specifically, the Superior Court stated in its opinion:

                 This was improper and objectionable. Although Reyes Trial
                 Counsel objected to the reading in of Reyes prior testimony,
                 the Trial Court permitted Reyes prior testimony to be read
                 to the jury in Reyes Rockford Park Trial. The Trial Court
                 simply explained that the testimony was probative and
                 determined there was no Delaware Rule of Evidence
                 (“DRE”) 403 issue that prohibited its admission. However,
                 Reyes former testimony was nevertheless inadmissible
                 hearsay and undermined Reyes choice to invoke his Fifth
                 Amendment right not to testify.

                                              *   *    *

                 There is nothing in the record to suggest that Reyes Trial
                 Counsel introduced evidence regarding the character trait for
                 truthfulness or untruthfulness for Saunders, Rowe, or Reyes.
                 Further Reyes’ testimony that was introduced was neither
                 opinion nor reputation evidence as permitted under the
                 DRE. Instead, it was a specific instance of conduct, which
                 is inadmissible in the form of extrinsic evidence and can
                 only be inquired into on cross-examination. Accordingly,
                 evidence of Reyes’ character trait for truthfulness was
                 inadmissible because he was not a witness in the Reyes
                 Rockford Park Trial because he invoked his Fifth
                 Amendment right, and his character for truthfulness was not
                 otherwise attacked. Moreover, even if Reyes’ character for
                 truthfulness was at issue, extrinsic evidence – the reading of
                 testimony into evidence and introducing it as an exhibit –

29
     App. to Appellant’s Opening Br. at 75.

                                                  20
                 was inadmissible under the DRE. Presentation of Reyes’
                 own testimony from a prior proceeding undermined Reyes’
                 decision not to testify as a witness against himself.30

          The State contends that consideration of this issue by the Superior Court in this

postconviction proceeding is barred by Rule 61(i)(4) as formerly adjudicated.

          The record reveals that Reyes’ trial attorneys strongly objected to the admission

of this excerpt from Reyes’ testimony at the Otero trial in its entirety. A lengthy

sidebar took place in which defense counsel argued that the statement was irrelevant

and unfairly prejudicial. They argued that there was nothing in Reyes’ reference to a

beating in the basement that identified such beating to the Rockford Park murders.

Toward the end of the arguments over the admissibility of the statement, defense

counsel specifically objected to the line where Reyes said he lied to his girlfriend:

                 [Defense Counsel]: So if the Court is now ruling that the
                 evidence about the fight is going to come in, why do we
                 need, what’s the point of lines 13 through 17? So you lied
                 to your girlfriend when you were at her house? Lied about
                 what?31

The State responded, arguing for the admission of the lines in question as showing that

Reyes was initially unwilling to admit he was involved in a fight in the basement.

Ultimately, the trial court ruled that the lines would be admitted:


30
     Reyes, 2016 WL 358613, at *7 (citations omitted).
31
     App. to Appellant’s Opening Br. at 73.

                                                21
              Unless someone can show something to me otherwise,
              considering that the only thing Mr. Reyes says was
              something about a beating and did not mention any possible
              events thereafter, that’s an inference that a jury can take
              from that particular series of questions and answers on page
              118, lines13 through 17, that he lied to her by not telling her
              the whole thing.32

        On his direct appeal, Reyes argued that the first question and answer from his

transcript testimony should have been excluded under DRE Rule 403.33 This Court

rejected that argument.34 On appeal Reyes did not argue against the admissibility of

the balance of the testimony.35

       There is no doubt that the admissibility of Reyes’ transcript testimony from the

Otero trial was adjudicated by the trial court. The trial court ruled that all the of

proffered transcript testimony could be read into evidence over the objection of defense

counsel, including the part where Reyes said that he lied to his girl friend.

       Reyes contends that his trial counsel exhibited a “lack of vigilance and failure

to properly object,” and failed to state “a properly grounded objection” to the lines

from the transcript in which Reyes said he lied to his girlfriend.36 However, a




32
   Id. at 74.
33
   Reyes, 819 A.2d at 311.
34
   Id. at 311-12.
35
   Id.
36
   Appellant’s Answering Br. at 35.

                                            22
“defendant is not entitled to have a court re-examine an issue that has been previously

resolved ‘simply because the claim is refined or restated.’”37

       Reconsideration of the admissibility of Reyes’ testimony from the Otero trial is

barred by Rule 61(i)(4) as formerly adjudicated, unless Reyes can satisfy Rule

61(i)(4)’s “interest of justice” exception.

       The “interest of justice” exception in Rule 61(i)(4) applies when the previous

ruling was “clearly in error or there has been an important change in circumstances, in

particular, the factual basis for the issues previously posed.”38 Here, the trial court was

not clearly wrong and there has been no change in circumstances. Therefore, the

“interest of justice” exception is unavailing to Reyes.

                          Cabrera’s unavailability as a witness

       The next ground for relief addressed by the Superior Court relates to Reyes’ co-

defendant, Luis Cabrera. Cabrera’s trial in the Rockford Park Murders took place

before Reyes’ trial. Cabrera’s trial concluded on February 15, 2001 with his being

convicted of two counts of Murder in the First Degree, two counts of Conspiracy in the

First Degree, and other offenses. The jury recommended death by an 11-1 vote. The

Cabrera trial judge, who was the same trial judge assigned to the Reyes case, deferred

37
   Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (quoting Riley v. State, 585 A.2d 719, 721
(Del. 1990), abrogated on other grounds by Morgan v. Illinois, 504 U.S. 719 (1992)).
38
   Weedon v. State, 750 A.2d 521, 527 (Del. 2000).

                                              23
Cabrera’s sentencing until after Reyes’ trial. Reyes’ trial ended October 26, 2001.

Cabrera did not testify at Reyes’ trial. Cabrera and Reyes were both sentenced on

March 14, 2002.

          The issues relating to Cabrera appear to begin with a letter which Cabrera’s

attorney wrote to Cabrera dated March 6, 2001. There had apparently been some talk

of Cabrera testifying at Reyes’ trial. In his March 6, 2001 letter, however, Cabrera’s

attorney stated, in part:

                 I agree with your decision. I know that you genuinely wish
                 to assist Mr. Reyes in his trial, however, I think that any
                 testimony you give at this point will seriously undermine
                 your chances of success in your appeal, or during any other
                 Postconviction action.

                 Notwithstanding your decision not to testify, [Mr. Reyes
                 defense attorneys] would like the opportunity to speak with
                 you so you can focus their efforts in defending Mr. Reyes.
                 I personally see no downside to this type of communication
                 . . . Based upon your very clear desire not to testify,
                 however, I have to insist that [defense counsel] keep this
                 discussion “off the record..” Essentially this means that
                 anything you say to them will be used for trial preparation
                 for the Reyes trial, but you will not be asked to testify as to
                 any matters given during this conversation.39

          The suggested meeting between Cabrera and one of Reyes’ trial attorneys did

take place, with an investigator present. At the meeting, Cabrera stated that Saunders


39
     App. to Appellant’s Answering Br. at 1482.

                                                  24
and Rowe were murdered by a person named Neil Walker and that Reyes was not

involved. Defense counsel and their investigator made notes of Cabrera’s account of

the murders. Cabrera had also identified Neil Walker as the killer in a statement he

gave to an investigator in 1997.

          Next, Cabrera wrote a letter to one of Reyes’ attorneys on September 23, 2001

saying that he had been approached by Reyes’ mother and that he did “want to help,”

but not at the expense of admitting his own guilt.40

          Finally, however, on October 9, 2001 Cabrera’s attorney wrote a letter to Reyes’

attorneys which stated, in pertinent part:

                    I understand my client may have communicated a
                    willingness and desire to testify on behalf of Mr. Reyes.

                    Notwithstanding these prior communications, my client
                    indicated to me that he did not wish to appear as a witness
                    in the Reyes trial. Moreover, if Mr. Cabrera was called as
                    a witness in the Reyes trial, he would refuse to testify based
                    upon his counsel’s advice and based upon his assertion of
                    his Fifth Amendment privileges.41

By then, Reyes’ trial had already commenced.




40
     Id. at 1480.
41
     Id. at 1481.

                                                 25
         On August 29, 2012, at the evidentiary hearing in this postconviction proceeding,

Cabrera was called as a witness. Citing “upcoming hearings of my own,” Cabrera

invoked his Fifth Amendment privilege and refused to answer questions.42

         The successor Superior Court judge seems to fault her predecessor for deferring

Cabrera’s sentencing until after Reyes’ trial. The Superior Court states in its

postconviction opinion:

                Had Cabrera testified as a witness at the Reyes Rockford
                Park Trial, Cabrera may have introduced reasonable doubt
                regarding Reyes role in the Rockford Park Murders.
                Specifically, Reyes Trial Counsel met with Cabrera in
                March 2001 and Cabrera explained to Reyes Trial Counsel
                that Reyes was not responsible for the Rockford Park
                Murders, but instead that a man named Neil Walker had
                committed the murders. Cabrera detailed an altercation that
                involved Walker, Cabrera, Saunders, and Rowe that gave a
                motive for Walker to commit the Rockford Park Murders.

                However, instead of testifying on behalf of Reyes, Cabrera
                advised that, if called as a witness in the Reyes Rockford
                Park Trial, Cabrera would invoke his Fifth Amendment right
                because he had not yet been sentenced. Accordingly, a
                critical witness with exculpatory evidence for Reyes was
                unavailable because of the Trial Court’s exercise of
                discretion as to the timing of Cabrera’s sentencing. The
                Trial Court’s delay in sentencing Cabrera rendered Cabrera
                unavailable as a witness in the Reyes Rockford Park Trial,
                denying access to exculpatory evidence and undermining the
                fairness of the trial.43

42
     Id. at 1161.
43
     Reyes, 2016 WL 358613, at *8.

                                            26
          The Superior Court’s reasoning does not identify any legal rule which controls

the discretion of a trial judge in scheduling a sentencing, nor are we aware of one. In

fact, there is nothing in the record to suggest that the trial judge was even aware of the

goings on concerning Cabrera. However, the dispositive point on this issue is that on

October 9, 2001, after Reyes’ trial had begun, Cabrera’s counsel unequivocally

informed Reyes’ attorneys that Cabrera would not testify at Reyes’ trial and, if called,

would exercise his Fifth Amendment privilege not to testify. This statement on the part

of Cabrera’s attorney would seem to be supported by the fact that at the evidentiary

hearing in this proceeding Cabrera did invoke his Fifth Amendment privilege, due to

his “upcoming hearings.”44 The clear weight of the evidence is that Cabrera would

have exercised his right not to testify if called as a witness at Reyes’ trial. There was

no error on the part of the trial court in deferring Cabrera’s sentencing until after

Reyes’ trial so that they could be sentenced together. The Superior Court’s ruling that

delaying Cabrera’s sentencing deprived Reyes of exculpatory evidence and undermined

the fairness of his trial is error.

          The Superior Court also ruled that Reyes’ trial counsel were ineffective for not

attempting to introduce at trial the statement they had received from Cabrera in the

interview with him in which he stated that the murders were committed by Neil Walker.

44
     App. to Appellant’s Answering Br. at 1161.

                                                  27
The court reasoned that Cabrera’s statement was admissible under DRE 804(b)(3).

That rule allows statements against interest made by an unavailable witness to be

admitted under some circumstances. One element for admissibility is that the statement

must be one which “so far tended to subject the declarant to civil or criminal liability

. . . that a reasonable person in the declarant’s position would not have made the

statement unless the declarant believed it to be true.”45 Where the statement is one

“tending to expose the declarant to criminal liability and offered to exculpate the

accused,” the statement is “not admissible unless corroborating circumstances clearly

indicate the trustworthiness of the statement.”46 The extent to which Cabrera’s

statement tended to expose him to criminal liability seems somewhat arguable. To the

extent that Cabrera’s statement did not tend to expose him to criminal liability, it is not

admissible under this rule. To the extent that it did tend to expose him to criminal

liability, it would have been offered “to exculpate the accused,” Reyes.47 Under these

circumstances, Cabrera’s statement was admissible only if “corroborating

circumstances clearly indicate[d] the trustworthiness of the statement.”48 Reyes

contends that there is some independent corroboration of Cabrera’s claim, in that


45
   D.R.E. 804(b)(3).
46
   Id.
47
   Id.
48
   Id.

                                            28
Cabrera was charged and indicted for physically assaulting Neil Walker in anger that

Walker had apparently exposed him to suspicion. However, we do not regard this as

corroboration of Cabrera’s statement that Neil Walker was the killer. Cabrera’s

statement was not supported by any corroborating circumstances that clearly indicate

the trustworthiness of the statement. Therefore, Cabrera’s statement to Reyes’ trial

attorneys was inadmissible hearsay. Accordingly, Reyes can not establish prejudice

from his trial counsel’s failure to offer Cabrera’s statement into evidence. It was error

for the Superior Court to find that Reyes’ trial counsel were ineffective for not

attempting to introduce Cabrera’s statement.

                                 Sterling’s Testimony

      Roderick Sterling was an important witness against Reyes. As described in the

Statement of Facts, Sterling, an inmate at Gander Hill prison, overheard Reyes admit

to another inmate, Ivan Galindez, that he, Reyes, was involved in the Rockford Park

Murders.

      At the time he overheard Reyes speaking with Galindez, Sterling was awaiting

trial on two counts of Unlawful Sexual Intercourse in the First Degree. The victim was

his seven year old niece. In June 1997, he notified his attorney by letter that he had

information about the Rockford Park Murders. On December 1, 1988, Sterling pled

guilty to one count of Unlawful Sexual Intercourse in the Second Degree and was

                                           29
sentenced to twenty years at Level V, suspended after ten years, followed by ten years

of community probation. After Sterling testified at Reyes’ trial, the State joined in a

motion to withdraw his guilty plea to Unlawful Sexual Intercourse in the Second

Degree. The motion was granted. Sterling then pled guilty to Unlawful Sexual

Intercourse in the Third Degree. The State recommended a sentence of ten years at

Level V, suspended immediately, with the expectation that Sterling would be deported

to Jamaica. The recommended sentence was imposed and Sterling was deported. The

Superior Court reasoned that Sterling had received a “huge benefit”

for his testimony.49 It stated that “[t]he benefit offered to Sterling by the State in

exchange for Sterling’s testimony rendered Sterling’s testimony unreliable.”50

         Based upon an interview with Sterling conducted by an investigator in 2008 in

Jamaica, Reyes has contended in this postconviction proceeding that Sterling’s

testimony was actually hearsay. Specifically, he contends that Sterling did not overhear

Reyes speaking, and that his testimony was hearsay passed on to him by Galindez. The

Superior Court ruled that Sterling’s testimony violated Reyes’ Sixth Amendment right

to confront witnesses. Specifically, the court stated:

                Sterling testified inaccurately at the Reyes Rockford Park
                Trial that Sterling overheard a conversation at HRYCI

49
     Reyes, 2016 WL 358613, at *9.
50
     Id. at *8.

                                           30
                 between Reyes and Galindez and that, in that conversation,
                 Reyes admitted to Galindez that Reyes killed Saunders and
                 Rowe. In other words, when Sterling testified, he claimed
                 to have personal knowledge regarding Reyes’ alleged
                 statements. However, in September 2008 when private
                 investigators interviewed Sterling in Jamaica, Sterling
                 claimed that he learned details of the Rockford Park
                 Murders from Galindez and not from Reyes. Reyes had a
                 Sixth Amendment right to confront the witnesses who
                 testified against him. Because Sterling testified against
                 Reyes and not Galindez, Reyes’ Sixth Amendment right was
                 violated.51

          The interview with Sterling in 2008 was conducted as part of defense preparation

during this postconviction proceeding. In the interview, Sterling said that Galindez

gave him some details after Sterling overheard the conversation between Reyes and

Galindez. He stated that his testimony at trial was some of what he overheard Reyes

say and Galindez filled in to give a full explanation. Because of the time which had

passed, Sterling did not remember much of the conversation he overheard in 1997. He

said the detail of the motive for the killings came from Galindez.

          After Reyes’ attorneys in the postconviction proceeding received the interview

with Sterling, they moved for an order to take Sterling’s deposition. In an opinion

issued November 13, 2012, the trial judge denied the motion.52 He compared Reyes’



51
     Id. at *9.
52
     State v. Reyes, 2012 WL 8256131, at *9 (Del. Super. Ct. Nov. 13, 2012).

                                                 31
trial testimony and the statement which Reyes had given to the investigator during the

2008 interview. He explained his ruling as follows:

                 The Court sees an insufficient basis to authorize Sterling’s
                 deposition. First, he professed lack of memory on some
                 things eleven years after the date he overheard Reyes speak
                 to Galindez. Second, while he identified one area–the
                 motive, which he said Galindez gave some detail, that was
                 the one identified. There were a series of details he recited
                 in his 1998 statement and at trial and no basis has been
                 presented to believe those were not things he actually
                 overheard. Third, Sterling did not recant his trial testimony
                 or the 1998 statement. Fourth, a careful reading of the 2008
                 statement simply makes no compelling case or cause to take
                 his deposition. No glaring changes or inconsistencies
                 appear, and he made no statement that what he said at trial
                 was not truthful.53

          Reyes’ attorneys filed a motion for reargument, in which they argued, among

other things, that they should be permitted to take Sterling’s deposition to develop

potential claims, including Due Process violations.54 The trial judge denied the motion

for reargument.

          In her opinion granting Reyes’ motion for postconviction relief, the successor

judge made no mention of the trial judge’s ruling.

          The State contends that the trial judge’s 2012 ruling formed the law of the case

and that the successor judge should not have reconsidered the issue of Sterling’s

53
     Id. at *9.
54
     The Ivan Galindez affidavit, discussed hereinafter, was attached to the motion for reargument.

                                                  32
testimony. We have recently reiterated that a trial court’s previous decision in a case

will form the law of the case for the issue decided.55 In State v. Wright, we stated:

              It is also established that a trial court’s previous decision in
              a case will form the law of the case for the issue decided. In
              Nationwide Emerging Managers, LLC v. Northpoint
              Holdings, LLC, a Superior Court judge dismissed a
              plaintiff’s claim that was based on a specific contractual
              provision. Subsequently, the judge retired and the case was
              assigned to his successor. The plaintiff renewed the claim.
              The successor judge rejected the defendant’s contention that
              the law of the case doctrine barred reconsideration of the
              dismissal, reinstated the claim, and found that the defendant
              breached the contractual provision. This court reversed,
              reasoning that under the law of the case, the Superior
              Court’s legal ruling at an earlier stage of the proceedings
              controls later stages of those proceedings, provided the facts
              underlying the ruling do not change.56

       By denying Reyes’ motion to take Sterling’s deposition and denying the motion

for reargument, in which Reyes argued that Sterling’s testimony was hearsay passed

on from Galindez and that a deposition was necessary to develop potential Due Process

claims, the trial court rejected Reyes’ hearsay and Sixth Amendment challenges. That

ruling forms the law of the case regarding Sterling’s testimony unless the ruling is

“clearly wrong, produced an injustice or should be revisited because of changed

circumstances.”57 The 2012 ruling is not clearly wrong and no circumstances have

55
   State v. Wright, 131 A.3d 310, 321 (Del. 2016).
56
   Id. (citations omitted).
57
   Hoskins v. State, 102 A.3d 724, 729 (Del. 2014).

                                               33
changed since the ruling was issued. Furthermore, whether the benefit offered to

Sterling by the State in exchange for his testimony rendered his testimony unreliable

was for the jury to decide. The successor judge should not have disregarded her

predecessor’s well-reasoned ruling and revisited Reyes’ challenge to Sterling’s

testimony. Her decision to do so was error.

       The Superior Court also ruled that Reyes’ trial counsel were ineffective in

connection with Sterling’s testimony. As mentioned, Sterling first surfaced as claiming

to have knowledge of the Rockford Park Murders in a letter which he wrote to his

attorney (“the Sterling letter”). At Reyes’ trial, Sterling said the letter was written by

Galindez but signed by him, Sterling.58 In ruling that Reyes’ trial attorneys were

ineffective in connection with Sterling’s testimony, the Superior Court stated as

follows:

               Sterling sent a letter to his counsel (“Sterling Letter”)
               claiming that Reyes admitted his role in the Rockford Park
               Murders and Sterling testified about the Sterling Letter at
               the Reyes Rockford Park Trial. Sterling admitted at the
               Reyes Rockford Park Trial Galindez wrote the Sterling
               Letter and that Sterling signed it. At the Reyes Rockford
               Park Trial, Reyes Trial Counsel objected to Sterling’s
               testimony regarding the Sterling Letter on hearsay grounds.
               Overruling Reyes Trial Counsel’s objection, the Trial Court
               found that even though Galindez and not Sterling wrote the

58
  There is some dispute about who actually did the writing of the letter and whether Galindez also
signed it.

                                               34
Sterling Letter, Sterling adopted the contents of the Sterling
Letter and, therefore, testimony regarding the Sterling Letter
was admissible under the DRE.

Although Reyes Trial Counsel properly objected to
Sterling’s testimony about the Sterling letter, Reyes Trial
Counsel did not present an accurate and thorough basis for
the hearsay objection to the Trial Court. Specifically, even
if the Trial Court agreed with the State that Sterling adopted
the statements of Galindez by signing the Sterling letter, the
letter was hearsay. Particularly, Sterling testified at the
Reyes Rockford Park Trial that the information within
Sterling’s letter was learned by Sterling when Sterling
overheard a conversation between Reyes and Galindez.
However, in September 2008 when private investigators
interviewed Sterling in Jamaica, Sterling stated that he
learned details of the Rockford Park Murders from Galindez
directly and not by overhearing a conversation between
Galindez and Reyes. In other words, even though Sterling
claimed at the Reyes Rockford Park Trial that he had
personal knowledge of the Sterling letter, Sterling did not
have personal knowledge. Accordingly, the Sterling letter
was hearsay, but this argument was not presented for the
Trial Court’s consideration.         This failure reflected
inadequate trial preparation which was not reasonable
performance under the circumstances especially, where, as
here, Sterling was the only witness to link Reyes to the
Rockford Park Murders.

Moreover, Sterling may have signified adoption of
Galindez’s writing, but adoptive admissions are only
considered non-hearsay as to parties. Neither Galindez nor
Sterling was a party in the Reyes Rockford Park Trial.
Therefore, Reyes Trial Counsel should have presented
argument that the Sterling letter was hearsay if it was to be
offered for the truth of its contents. Reyes Trial Counsel’s


                             35
                 failure to make this argument was unreasonable and Reyes
                 has established the performance prong of Strickland.59

          The “Sterling Letter” was not introduced into evidence at trial. The whereabouts

of the original are unknown. The contents of the letter are, however, preserved in a

verbatim recitation thereof contained in a police report. The letter read as follows:

                 I am writing this letter to inform you of some information
                 regarding two bodies found at Rockford Park. The victims
                 were shot, I believe the case is unsolved. Me and my
                 roommate heard a conversation about that – ... check about
                 that. Check out the DA to see if we can make deal. That a
                 visit a letter to notify.60

          The letter itself seems to have little probative value.

          At trial, Reyes’ trial attorneys did raise a hearsay objection to Sterling’s

testimony when Sterling testified that Galindez wrote the letter and he, Sterling, signed

it. The trial court overruled the objection on the grounds that Sterling adopted its

contents by signing it.

          The nature of the framing of the questions posed to Sterling by the prosecutor,

and Sterling’s responses, are illustrated by the following excerpts taken from the

transcript of his testimony:

                 Prosecutor: Was-during this time period we are talking
                             about, May, July, on into the fall of 1997, was

59
     Reyes, 2016 WL 358613, at *17.
60
     App. to Appellee’s Answering Br. at 2383.

                                                 36
             there ever a time where you heard the
             defendant talking about the murder which had
             happened at Rockford Park with Ivan
             Galindez?
Sterling:    Yes, there was.

                        *   *    *

Prosecutor: Where you were located, who was there, those
            kinds of things.
Sterling:   Well, him – he was talking to Ivan Galindez,
            and I happened to have been sitting at the
            table, in close proximity to where he was
            talking.
Prosecutor: Were you participating in this conversation
            yourself or were you simply hearing it?
Sterling:   I was overhearing it.

                        *   *    *

Prosecutor: Do you remember if he told you how it was
            that he knew the victims?
Sterling:   As I said, he didn’t – he wasn’t talking to me.
            He was talking to Galindez. I overheard.

                        *   *    *

Prosecutor: What did you overhear the defendant saying
            about what happened after the person was
            called over to 601 in the basement? What
            happened?
Sterling:   What I recall is that somewhere along the line,
            they got into some type of argument and fight,
            and where this guy was being beaten.
Prosecutor: Where did the beating occur, according to
            what you heard the defendant say?
Sterling:   In the basement of – in the basement.

                            37
Prosecutor: Did you overhear the defendant talk about
            whether there were any weapons involved at
            the time, down in the basement of 601?
Sterling:   The only thing I recall was a belt.
Prosecutor: What do you recall the defendant saying about
            a belt?
Sterling:   Well, that he was beating the individual with
            the belt.


                        *    *   *

Prosecutor: What did you overhear the defendant say about
            what happened after they got to the area of
            Canby Park near the softball fields?
Sterling:   I’m [sic] gone blank. I’m not recalling. I just
            recall them – that they drove them into the
            park and – up by the softball field which is
            where they were killed.
Prosecutor: All right. So they were killed at the softball
            fields in Canby Park, right?
Sterling:   Yes.
Prosecutor: Where did you get that information from?
Sterling:   That’s what I heard.

                        *    *   *

Sterling:   With Cabrera.
Prosecutor: Did the defendants anything [sic] which you
            heard about how it was the victims were shot?
Sterling:   I still don’t understand your question.
Prosecutor: All right. Were they standing, sitting, laying
            down, in the car, outside those kinds of things?
Sterling:   Oh, they were outside, laying down on the
            ground.
Prosecutor: When they were shot?
Sterling:   Yes.

                            38
                 Prosecutor: You heard the defendant say that?
                 Sterling:   Yes.61

          These excerpts clearly illustrate that during direct examination Sterling’s

testimony was tightly confined to what he said he overheard Reyes saying. There is

simply no basis in his testimony to justify a conclusion that Reyes’ trial attorneys

should have been more vigorous in asserting a hearsay objection or that appellate

counsel should have raised the Sterling hearsay issue on appeal. Trial counsel’s failure

to assert a more vigorous hearsay objection and appellate counsel’s failure to raise the

issue on appeal were not objectively unreasonable. The Superior Court’s ruling that

Reyes’ trial attorneys were ineffective in not asserting a more vigorous hearsay

objection to Sterling’s testimony is error.

          Next, with regard to Sterling, the Superior Court found that the State violated its

Brady obligations by failing to disclose impeachment evidence to the defense which

related to Sterling’s “history of drug and alcohol abuse, convictions, and treatment.”62

Reyes also contends that trial counsel were ineffective for not requesting Brady

material relating to Sterling.

          The Brady material which Reyes claims should have been disclosed consists of

the following. In his interview with the police, Sterling said he needed “some . . . a

61
     App. to Appellee’s Answering Br. at 133, 134, 137, 138-39.
62
     Reyes, 2016 WL 358613, at *10.

                                                39
drug rehab program.”63 When he was sentenced on the charge of Unlawful Sexual

Intercourse in the Second Degree, he made reference in open court to his drug and

alcohol addiction, and his need for a rehabilitation program. The court included in his

sentence a special condition that he undergo a substance abuse and mental health

evaluation. The presentence report prepared in connection with his sentencing also

discussed drug and alcohol abuse.

       A defendant seeking to establish a Brady violation must show (1) that the

evidence at issue must be favorable to the accused, either because it is exculpatory, or

because it is impeaching, (2) that the evidence must have been suppressed by the State,

either willfully or inadvertently, and (3) prejudice must have ensued.64 As to the third

element, the defendant must establish that “there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would have

been different.”65

       The police report appears to contain only a reference to Sterling needing a drug

rehab program. At the evidentiary hearing in this case, Reyes’ trial counsel testified

that he may have gotten a copy of Sterling’s sentencing transcript.66 He also testified


63
   App. to Appellee’s Answering Br. at 2383-84.
64
   Starling v. State, 882 A.2d 747, 756 (Del. 2005).
65
   Id. (quoting Jackson v. State, 770 A.2d 506, 516 (Del. 2001)).
66
   App. to Appellant’s Answering Br. at 687, 688.

                                               40
that he believed that he had reviewed Sterling’s presentence report prior to Sterling’s

cross-examination.67

       The jury was made well aware that Sterling had been convicted of committing

Unlawful Sexual Intercourse in the Second Degree upon his seven year old niece.68

The jury was also made aware that, in exchange for his testimony, Sterling had an

agreement with the State that would result in the suspension of the balance of a ten year

Level V term and allow for his immediate release and deportation to Jamaica. The jury

was therefore aware that Sterling received a very substantial benefit from the State for

his testimony. On cross-examination, trial counsel also elicited from Sterling that he

had been a drug dealer and had used “weed.”69

       Given the significant impeachment evidence which was presented concerning

Sterling’s conviction, the benefit he was receiving from the State in exchange for his

testimony, and his drug dealing and drug use, we think it unlikely that more vigorous

cross examination about drug and alcohol abuse would have led to a different result.

We conclude that Reyes failed to establish prejudice in connection with impeachment


67
   Id. at 687.
68
   On direct examination at trial, Sterling also admitted that he was convicted of misdemeanor theft
in 1995. App. to Appellee’s Answering Br. at 141. That testimony is consistent with the presentence
report which was prepared in connection with his sentencing on his conviction of Unlawful Sexual
Intercourse in the Second Degree. Id. at 2023. Therefore, there were apparently no more convictions
for cross-examination.
69
   App. to Appellant’s Answering Br. at 150.

                                                41
of Sterling. The Superior Court erred in finding a Brady violation. Since we find that

Reyes failed to establish prejudice, it unnecessary to address the first and second

elements of Brady.70 This finding on our part also disposes of Reyes’ claim that trial

counsel was ineffective in not specifically asking for drug and alcohol impeachment

evidence pertaining to Sterling.

       Finally, with respect to Sterling, the Superior Court found that Reyes’ trial

counsel were ineffective for not requesting a missing evidence instruction with regard

to the Sterling Letter. Specifically, the Superior Court ruled as follows:

               The State never produced the Sterling Letter. Importantly,
               Reyes Trial Counsel did not request a missing evidence
               instruction for the Sterling Letter. Had Reyes Trial Counsel
               requested the instruction, the jury would have received the
               standard DeBerry instruction, providing that the jury is to
               assume the missing evidence is exculpatory for Reyes[.]

                                               ***

               Reyes Trial Counsel’s performance fell below an objective
               standard of reasonableness and Reyes has established the
               performance prong of Strickland71.



70
   The State would have had an opportunity to review Sterling’s presentence report in connection
with his sentencing, but under the Superior Court’s policy of confidentiality of presentence reports,
it would not have been proper for the State to make a copy. For this reason, the trial judge refused
to consider the contents of the presentence report at the evidentiary hearing. Since we find that the
defendant cannot show prejudice from the alleged Brady violation, we need not discuss issues
regarding disclosure of the presentence report further.
71
   Reyes, 2016 WL 358613, at *18.

                                                42
       To determine whether a missing evidence instruction is appropriate, it must first

be determined whether the material “would have been subject to disclosure under

Superior Court Criminal Rule 16 or under Brady v. Maryland.”72 If disclosure was

required, it must next be determined “whether the State had a duty to preserve the

material” and if so, “whether the State breached that duty and what consequences

should flow from that breach.”73 Such consequences are determined by considering the

following three factors: “[(i)] the degree of negligence or bad faith involved; [(ii)] the

importance of the missing evidence considering the probative value and reliability of

secondary or substitute evidence that remains available; and [(iii)] the sufficiency of the

other evidence produced at trial to sustain the conviction.”74 “Where ‘the State does

not act negligently or in bad faith in failing to preserve evidence, and the missing

evidence does not substantially prejudice the defendant’s case,’ a missing evidence

instruction is not necessary.”75

       The Superior Court did not consider these factors in reaching its conclusion.

There is no finding, nor, apparently, any evidence of negligence or bad faith on the part

of the State. As mentioned, the contents of the letter did not seem to have significant


72
   McCrey v. State, 2008 WL 187947, at *2 (Del. Jan. 3, 2008).
73
   Id.
74
   Id. (quoting Hammond v. State, 569 A.2d 81, 86 (Del. 1989)).
75
   Id. (quoting Wainer v. State, 2005 WL 535010, at *3 (Del. Feb. 15, 2005)).

                                               43
probative value. Although the original of the letter is lost, its contents are known.

Under these circumstances, there is no proper basis for giving a missing evidence

instruction. Therefore, Reyes failed to establish prejudice from the loss of the “Sterling

Letter,” and the Superior Court’s ruling that his trial attorneys were ineffective in not

requesting a missing evidence instruction is error.

                       Failure to Call Galindez as a Witness

      The court below also found that trial counsel was ineffective for failing to call

Ivan Galindez as a witness at trial because Galindez was the only person who could

challenge Sterling’s testimony. Specifically, the Superior Court ruled as follows:

             Reyes Trial Counsel was ineffective by failing to call
             Galindez as a witness. Only Galindez could have
             challenged Sterling’s testimony, which was “the most
             significant testimony” against Reyes.

             Sterling claimed that Sterling overheard and understood
             conversations between Reyes and Galindez. However, if
             Galindez had testified, Galindez would have demonstrated
             that Sterling’s claim was false because Sterling could not
             possibly have understood any conversation between
             Galindez and Reyes. At trial, Sterling testified that he did
             not speak Spanish and only understood Spanish “a little bit.”
             Sterling further testified that he heard the conversation
             between Galindez and Reyes in English. However, in a
             2012 affidavit, Galindez provided:

                    [] While I was serving my sentence [at Gander
                    Hill], I was on the same pod as Luis Reyes. []
                    Luis Reyes and I talked about a lot of things

                                           44
                      while we were on the same pod. [] When I
                      spoke to Luis Reyes, I spoke to him in Spanish
                      because at the time, I spoke very little English.
                      [] At the time, my cell [mate] was Roderick
                      Sterling. [] Roderick Sterling did not speak
                      Spanish.

              Reyes Trial Counsel fell below an objective standard of
              reasonableness when they failed to call Galindez as a
              witness. It was critical to challenge Sterling’s claim that
              Sterling heard Reyes tell Galindez that Reyes participated in
              the Rockford Park Murders. Accordingly, Reyes has
              established the performance prong of Strickland.76

       Galindez was not called as a witness in this postconviction proceeding and was

not subject to cross-examination concerning his affidavit.

       At the Cabrera trial where Reyes testified, Reyes stated that he did not

understand much Spanish, but understood it “a little bit.”77 Luz Diaz, Reyes’ aunt,

testified at the evidentiary hearing in this proceeding. Her testimony was that “[W]e

speak English to him. He tried to speak to my mom in Spanish, you know, broken

Spanish. But, you know, he don’t speak very good Spanish. We always kid him.

English please.”78

       At the evidentiary hearing, both of Reyes’ trial attorneys testified concerning his

ability to speak Spanish. One trial attorney testified as follows:

76
   Reyes, 2016 WL 358613, at *18.
77
   App. to Appellant’s Opening Br. at 64.
78
   Id at 179.

                                             45
Q. Okay. I believe, and if we need to get the transcripts,
we can do that, that Mr. Sterling testified that he overheard
Mr. Reyes talking to Ivan Galindez –

A. That sounds familiar.

Q. And it was an issue as to whether that was in English or
in Spanish.

A. Okay.

Q. And do you recall that the State presented in rebuttal to
that, the State presented some evidence that Mr. Reyes did
not know Spanish?

A. I do remember that there was some testimony about Mr.
Reyes’ ability to speak Spanish and whether or not he ever
had conversations in Spanish. And my memory is that it
was a bit surprising to me that he didn’t.

Q. Okay. Did you speak to any of Mr. Reyes’ family
members about his ability to speak Spanish?

A. I think we did.

Q. Do you know – do you recall what they told you?

A. Again, my memory is that he was not fluent in Spanish
and probably wasn’t much better than I was at the time.

Q. And did you ever contemplate having Mr. Reyes tested
for his ability to read and understand Spanish?

A. I don’t know whether you’re asking me did we
contemplate that before the trial –

Q. Yes.

                             46
                 A. Well, I don’t – I can’t sit here and tell you that I know
                 that it was going to be an issue before the trial. If you’re
                 asking me did we ever consider that during the trial, I think
                 that the information that we got from the family members
                 was that that test wasn’t going to be helpful.79

          Reyes’ other trial attorney testified as follows:

                 Q. What is your understanding of Mr. Reyes’ ability to
                 speak Spanish.

                 A. I believe it’s – he does not speak Spanish very well.
                 Minimally, I would say. That’s my recollection.

                 Q. And obviously every time you spoke to him it was in
                 English; is that correct.

                 A. Yes.80

          The Superior Court did not address any of this admissible evidence, but relied

entirely upon Galindez’s untested affidavit.

          The record clearly establishes that at the time of the trial, Reyes’ trial attorneys

reasonably believed that he did not speak Spanish. Reyes’ own testimony from the

Otero trial and the testimony from Reyes’ family at the evidentiary hearing corroborates

the trial attorneys’ reasonable belief. Accordingly, the evidence does not establish that

Reyes’ trial attorneys were objectively unreasonable in not calling Galindez as a

witness. Moreover, calling Galindez, to whom Reyes was alleged to have confessed

79
     App. to Appellant’s Answering Br. at 689.
80
     Id. at 750.

                                                 47
by Sterling, may have been a serious mistake. The Superior Court should not have

disregarded the admissible evidence that Reyes was not fluent in Spanish in favor of

an untested affidavit written eleven years after trial. The Superior Court’s ruling that

Reyes’ trial attorneys were ineffective in not calling Galindez as a witness is error.

                                    IV. CONCLUSION

         For the foregoing reasons, the judgment of the Superior Court is reversed.

Reyes’ convictions are reinstated. Under our recent decisions of Rauf v. State81 and

Powell v. State,82 Reyes’ death sentence remains vacated. The matter is remanded to

the Superior Court for resentencing on the two convictions of Murder in the First

Degree. The Superior Court shall impose on each of the murder convictions a sentence

of imprisonment for the remainder of Reyes’ natural life without benefit of probation

or parole or any other reduction.




81
     145 A.3d 430 (Del. 2016).
82
     2016 WL 7243546 (Del. Dec. 15, 2016).

                                             48
