         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                  IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                                           )
                                                             )
                 v.                                          )        ID No. 91004136DI
                                                             )
JERMAINE WRIGHT,                                             )
                                                             )
                 Defendant.                                  )



                                       CORRECTED OPINION


        In 1991 Defendant Wright made a videotaped statement to police

in which he admitted a role in the murder of Philip Seifert. His

confession was used at his trial, and he was convicted of murder and

associated offenses.                    He was sentenced to death.                                 A complex

procedural history followed, and Wright was eventually granted a new

trial. Presently before the Court is Wright’s motion to suppress his

confession in which he contends, among other arguments,1 that it

should be suppressed because the Miranda warnings administered to

him before his confession were insufficient. The State responds that

the Court should not consider Wright’s argument because it is


1
  Wright also contends that his waiver of his Miranda rights and his statement were both involuntary. Because of the
Court’s resolution of the argument centered on the adequacy of the Miranda warnings given to Wright, the Court need
not reach his other arguments.
foreclosed by the doctrine of the law of the case. Alternatively, the

State argues the warnings given to Wright satisfied Miranda.

     The threshold question here is whether Wright’s claims are

barred by the law of the case doctrine.          Although the Delaware

Supreme Court previously held that these claims were procedurally

barred by Superior Court Criminal Rule 61, that rule does not apply

to these proceedings. The law of the case doctrine differs from the

procedural bars of Rule 61 in that the law of the case doctrine

extends only to issues which were actually decided. Wright’s Miranda

claims were never presented to the Delaware Supreme Court, much

less decided by that Court.        Likewise, those claims were never

presented to, or decided by, this Court. Consequently, his argument

is not barred by the law of the case.

     Turning to the merits, the law does not require any specific

language be used when administering the warnings so long as they

reasonably   convey   all   four   of   the   so-called   Miranda   rights.

Importantly, any warning which suggests a limitation on one of those

rights renders those warnings invalid.        The warnings given in this

case contain such a limitation.         The interrogating detective told

Wright he had a right to appointed counsel if “the State feels you’re


                                    2
diligent and needs one,” thus incorrectly suggesting to Wright that he

was entitled to appointed counsel only if the State felt he needed one.

Accordingly, the ensuing statement may not be used by the State as

part of its case-in-chief in Wright’s retrial.

                                   Facts

     Philip Seifert was murdered in January 1991 while working as a

clerk at his brother’s liquor store, known as the HiWay Inn, which

was located just outside the Wilmington city limits on Governor Printz

Boulevard.    Since the HiWay Inn was located outside the city the

Delaware State Police had responsibility for investigating this crime.

The police had little evidence to go on when the investigation began—

there were no eye witnesses to the shooting, the murder weapon was

never recovered, no shell casings were found, and there were no

fingerprints at the scene other than those of the store owner. In an

effort to develop a lead, State Police Detective Edward Mayfield, the

chief investigating officer, walked the local neighborhoods at night

offering twenty dollar bills in exchange for information. Little or no

information was forthcoming until an anonymous note appeared at

the HiWay Inn stating that someone named “Marlo” was involved in

the killing. Police knew that Wright’s street name was “Marlow,” and


                                      3
they quickly identified him as a possible suspect.        They lacked

sufficient evidence to obtain a warrant for Wright’s arrest for the

HiWay Inn murder, but they did have enough to arrest him for two

unrelated crimes which had taken place within the Wilmington city

limits. The Wilmington Police obtained a warrant to arrest him for

these unrelated crimes and a daytime warrant to search his home.

     Wright’s home was located within the city, so shortly after six

a.m. on January 30, 1991 a Wilmington police S.W.A.T. team

executed the arrest warrant and assisted other officers in searching

Wright’s home. Wright was immediately taken to Wilmington Police

Department’s central headquarters where he was searched and

booked. He was then placed in an interrogation room where he was

shackled to a chair. By design, the room, which measured seven feet

by seven feet, had no windows or clock. It contained only a chair for

the suspect, a small table, and a chair for the interrogator. There was

also a camera mounted on the ceiling which could be used to make

video and audio recordings of interviews taking place in the room. The

police also had the capability of transmitting the audio of interviews

from the interrogation room to nearby detective offices where others

could listen in.


                                   4
         Wright’s first interrogation was conducted by Detective Merrill of

the Wilmington Police Department, who questioned him about one of

the unrelated crimes.                    The detective later testified that he advised

Wright of his Miranda rights prior to questioning. By 1991 Miranda

was 25 years old, and police had considerable experience with it.

Most, if not all, police agencies had developed standard routines in

order to avoid the “litigation risk of experimenting with novel Miranda

formulations.”2 One such tool was the use of cards from which to read

the Miranda warnings.                      Indeed, Delaware judicial opinions written

prior to Wright’s interrogation often refer to the use of a “Miranda

card” by officers administering those warnings. 3 Nonetheless, in the

instant case Detective Merrill did not use a Miranda card, but instead

recited the warnings from memory.




2
  Florida v. Powell, 559 U.S. 50, 64 (2010).
3
  E.g., State v. Oakes, 373 A.2d 210, 212 (Del. 1977) (Delaware State Police Officer “read defendant the Miranda
warnings from a card and asked if defendant understood his rights.”); State v. Aiken, 1992 WL 301739, at *3 (Del.
Super. Oct. 9, 1992) (Before interrogating defendant on two occasions in 1991 police used a “Miranda card designed
for police to use when questioning suspects.”); State v. Kopera; 1991 WL 236970, at *1 (Del. Super. Oct. 17, 1991)
(Detective “read to Mr. Kopera the Miranda rights contained on the Delaware State Police Miranda rights card.”). See
also United States v. Velasquez, 885 F.2d 1076, 1079 (3d Cir. 1989) (“[Delaware State Police officer] Durnan testified
that he read Velasquez Miranda warnings from a card, reading slowly, in English, and stopping after each sentence to
ask if she understood. She answered in the affirmative each time. Durnan also testified that he provided Velasquez with
a card containing the Miranda warnings in Spanish.”); United States v. Smith, 679 F. Supp. 410, 411 (D. Del. 1988) (“At
about 11:25 a.m. [Delaware State Police] Corporal Durnan handcuffed Mr. Smith, placed him under arrest and read him
the Miranda warnings from a card.”). In one case in which the adequacy of the warnings was contested the Delaware
Supreme Court noted that the card “was the best evidence” of the warnings actually given to the defendant. Walley v.
State, 622 A.2d 1097, 1993 WL 78221, at *2 (Del. 1993) (TABLE).


                                                          5
         The risk, even for seasoned detectives, of not using a Miranda

card is illustrated by testimony elicited in 2009 from Detective Merrill

by the State during the Rule 61 hearing.                                           The Deputy Attorney

General asked Detective Merrill:

                  Q. (By State): Do you recall, sitting here, what rights
                  you recited to him?

                  A. Yes.

                  Q. And can you tell the Court what they were?

                  A. You have the right to remain silent. Anything you say
                  can and will be used against you in a court of law. You
                  have the right to have an attorney present during this
                  questioning, and you can terminate the questioning at
                  any time.

These warnings omitted the right to appointed counsel.                                                  The Court

does not believe that eighteen years later Detective Merrill could

remember the precise warnings he gave Wright, even though the State

asked him and he said he remembered them.4 It does underscore the

risk, however, of misstating the Miranda rights when giving them from

memory.

         The next detective to question Wright was Wilmington Detective

Robert Moser. At various times throughout this prolonged litigation

Detective Moser offered conflicting testimony about whether he


4
  In an earlier hearing Detective Merrill was also asked to recite the warnings he gave to Wright, and in that hearing he
recited them in a manner which satisfied Miranda.

                                                            6
administered Miranda warnings to Wright. At a pretrial suppression

hearing he testified he gave such warnings, but a few months later at

Wright’s trial he testified he did not give any warnings because Wright

had already been “Mirandized.”                                In a 2009 evidentiary hearing

Detective Moser again testified that he gave those warnings, but this

time he added he obtained a written acknowledgement of those

warnings from Wright. Contemporaneous judicial opinions from the

period often refer to the use of written Miranda waivers,5 and

Detective Moser stated that it was standard procedure in 1991 to

obtain written acknowledgements and waivers before questioning a

suspect. No written waiver form from any of the three interrogations

of Wright, however, has ever been produced.

        Detective          Moser’s         unrecorded             interrogation            began         with      a

discussion about the second unrelated Wilmington crime. According

to the detective, the atmosphere during his interrogation was

relaxed—he stated he leaned back in his chair and listened to Wright,

5
   Liu v. State, 628 A.2d 1376, 1380 (Del. 1993) (Expert testified in 1990 trial on Defendant’s understanding of
warnings “after examining the Miranda waiver forms the police use.”); Black v. State, 616 A.2d 320, 322 (Del. 1992)
(During the 1990 interrogation Defendant “was once again advised of his Miranda rights and signed a form to that
effect.”); Torres v. State, 608 A.2d 731, 1992 WL 53406, *4 (Del. 1992) (TABLE) (“The record also shows that Torres
voluntarily waived his Miranda rights by executing a written Miranda waiver form prior to giving each tape-recorded
statement.”); Lodge v. State, 599 A.2d 413, 1991 WL 134474, at *1 (Del. 1991) (TABLE) (Defendant completed
“another Miranda waiver form and relinquishing his Miranda rights for a second time.”); Deputy v. State, 500 A.2d
581, 586 (Del. 1985) (Defendant “signed a written [Delaware State Police] form acknowledging the Miranda
warnings.”); State v. Dyson, 1989 WL 48580, at *1 (Del. Super. May 5, 1989) (“The defendant executed a Miranda
warning waiver form.”); State v. Brophy, 1986 WL 13100, at * 4 (Del. Super. Sept. 12, 1986) (Detective “testified that
he watched the defendant sign the Miranda form.”).

                                                          7
who seemed anxious to talk. During the course of the day Wright was

given a submarine sandwich and two sodas. Except for occasional

bathroom breaks, Wright remained in the interrogation room prior to

Detective Mayfield’s interrogation.                            The relaxed atmosphere during

Detective Moser’s interrogation was interrupted when a second State

Police detective assigned to the case burst into the room and told

Wright, “I’m in charge here and you’re going to tell me what I want.”

Wright refused to speak to the interloper, who apparently did not stay

long. After the second State Police detective departed, Wright again

started to talk with Detective Moser. At some indeterminate time

during the interrogation, Wright brought up the subject of the HiWay

Inn killing. At first, according to Detective Moser, Wright suggested

that someone else was involved, but as the questioning wore on

Wright’s story shifted and he eventually told Detective Moser that he

was involved.             Wright stated that an acquaintance, Lorinzo Dixon,6

was the mastermind of the crime and threatened to kill him if he did

not shoot the clerk.




6
    Dixon was arrested later and denied any complicity in the HiWay Inn killing. He ultimately pled to robbery in the
first degree and possession of a firearm during the commission of a felony in exchange for a sentence he believed would
result in his release after serving an additional five months. At a 2009 Rule 61 evidentiary hearing Dixon denied any
complicity and testified he entered his plea only because his friend Wright was sentenced to death for a crime they did
not commit and Dixon was afraid the same thing would happen to him.

                                                          8
        Detective Mayfield listened to Detective Moser’s interrogation via

a remote connection to a nearby detective’s office.                                                   Eventually

Detective Mayfield decided he had heard enough and was ready to

interrogate Wright himself. 7                         This interrogation began roughly 13

hours after Wright was first arrested.                                     Wright was moved to a

conference room where video equipment had been set up, and

Detective Mayfield began to question Wright ostensibly shortly after

7:30 p.m.8                Unlike the previous interrogations, this one was

videotaped.

        Despite the fact that the police had the capability of recording

Wright’s first interrogations using the camera mounted on the ceiling,

neither of the first two interviews nor the warnings alleged to have

been given to Wright was recorded.                                 Detective Moser explained the

absence of recordings; “believe it or not, back then video tape was

expensive.” On the other hand, Detective Mayfield told the Court that

the “Delaware State Police practice at that time was we always audio

or videotape the interviews of people.” The State offered no

7
   During the Rule 61 evidentiary hearing, Detective Mayfield objected to the nomenclature “interrogation” and insisted
his interaction with Wright was an “interview.” The Court has chose to use the term “interrogation” to refer to
questions asked of a suspect, and the tem “interview” to refer to questions asked of a non-suspect (i.e. a witness). The
Supreme Court uses the term “interrogation” in Miranda and its progeny, and the court will use it here. It does not
ascribe any negative connotation to the term.
8
   Detective Mayfield at the beginning of the interrogation said that the time was 7:34 p.m., and indeed a clock behind
Wright in the video indicated it was 7:34. However, the video shows that throughout the interrogation, the hand of the
clock never moved. This creates considerable doubt as to when the interrogation actually began.

                                                           9
explanation why, even if video tape was expensive, audio recordings

were not made of the first two interviews.

     Turning to Wright’s condition at the time of the interrogation,

Detective Mayfield testified that in 1991 it was the practice of the

State Police not to interview suspects who were intoxicated on drugs

or alcohol.   According to the detective, this practice as well as his

training often caused him to delay interviews when the suspect was

thought to be intoxicated. In fact, prior to interrogating Lorinzo Dixon

the detective asked Dixon whether he was intoxicated. He asked no

such question of Wright, however.

     The trial judge found that Wright was intoxicated on heroin

while he was being interrogated.         At least part of that finding was

based on her comparison of Wright’s demeanor on the videotaped

confession with his later demeanor in the courtroom.          Substantial

other evidence corroborates her finding.           The search of Wright

conducted when he was booked that morning failed to disclose that

Wright was then in possession of heroin. The trial judge found that

he used the secreted heroin during bathroom breaks occurring during

the day. Another indication of his intoxication was the bizarre

behavior Wright exhibited during the Moser interview. At one point,


                                    10
he began speaking softly, almost inaudibly, because he feared his

answers were being overheard by others. Later, Wright curled up in a

fetal position under the table in the interview room. At yet another

point during the Moser interrogation, Wright insisted on writing down

his answers on a piece of paper, passing the paper to Detective Moser

who in turn handed it back to Wright, whereupon Wright would eat it.

           In the 2009 hearing Wright presented unopposed substantial

credible testimony from several nationally-recognized experts leading

to the conclusion that Wright’s confession was unreliable.                                      That

expert testimony was discussed in this Court’s 2012 opinion.9 Some

examples will suffice to describe its nature and import. There was

expert          testimony            that      Wright           was      withdrawing   from    heroin

intoxication              during        the       last     interrogation,      and     that   persons

undergoing heroin withdrawal will do or say anything in order to get

another fix. Still another expert testified about Wright’s intellectual

deficits, noting he was profoundly impaired to a point akin to mental

retardation.                Another expert testified that he administered a

Gudjonsson Suggestibility Scale, which is a recognized test used to

determine the degree to which a person is subject to suggestion. That


9
    State v. Wright, 2012 WL 1400932, at *12-18 (Del. Super. Jan. 3, 2012).

                                                           11
test showed that Wright was “extremely suggestible” and was more

likely than 998 people out of 1000 to change his answers in response

to suggestion or pressure from his interrogator. The expert pointed to

multiple instances during the recorded interrogation when Wright

changed his answers in response to suggestions from Detective

Mayfield.     For example, a witness who saw two unidentified

individuals fleeing the scene told police they were wearing dark

clothing.    In the interrogation Wright told the police he did not

remember what pants he was wearing.                   The transcript shows that

Detective Mayfield steered him into stating he was probably wearing

jeans:

     EM [Detective Mayfield]: What about yourself, what were you wearing?

     W: I can't really say. I forgot. It's been, I can't really say.

     EM: You have no idea at all?

     W: No, sir.

     EM: Do you usually wear jeans?

     W: Yeah.

     EM: Well, do you think you had jeans on that night?

     W: Yeah. I probably had jeans on.




                                           12
Although forewarned of the array of expert evidence Wright intended

to call and the substance of their proposed testimony, the State

offered nothing to contradict it.

          There is other evidence calling into question the credibility of

Wright’s confession. During his interrogation Wright repeatedly got

key facts wrong. For example, he stated the caliber of the pistol he

used was different than the caliber of the gun actually used to kill Mr.

Seifert. At another time during the interrogation he told the detective

that one shot was fired, when in fact there were three. At still another

point Wright told the police that Mr. Seifert was lying on the floor

when he fled the liquor store. In fact the victim’s head and chest were

still on the counter when he was first discovered.

          The unopposed expert evidence and the inconsistencies between

Wright’s statement and the facts led this Court to conclude that his

statement was unreliable:

                  In particular, the court finds that (1) Wright likely did not
                  understand his rights when given the Miranda warnings;
                  (2) Wright was predisposed to being easily persuaded; (3)
                  Wright's lack of sleep, the length of his interrogation, his
                  heroin intoxication, and the early withdrawal stages all
                  exacerbated his predisposition to suggestion; and (4) the
                  interrogation was designed in part to suggest the
                  “correct” answers to Wright. 10



10
     Wright, 2012 WL 140932, at *18.

                                               13
The State urges that despite all of this, Wright’s confession was

reliable because he told Detective Mayfield things only the killer would

know.          The State has never explained, however, precisely what

information Wright knew (and got correct) that “only the killer would

know.”

        The notion that Wright knew information only the real killer

would know is belied by the fact that at least some information was

likely fed to him.                  The Court discussed a moment ago Wright’s

amenability to suggestion and how Detective Mayfield’s questioning at

least sometimes steered Wright in the direction of “correct” answers.

Wright contends that he was also fed information about the killing

during the Moser interrogation, a contention that the trial judge

rejected because the only thing Detective Moser knew about that

killing was the sketchy information contained in the so-called State

Police pass-on. 11 Since then, new evidence—unavailable to the trial

judge—has come to light which leads the Court to conclude that

Detective Moser had access to far more information than what was

available from the pass-on.




11
   This is a document routinely created by police departments to circulate basic information about unsolved crimes to
other officers.

                                                          14
     Detective Mayfield denied providing any information to Detective

Moser about the HiWay Inn killing. According to Detective Mayfield,

at that time there was considerable inter-agency rivalry between the

Delaware State Police and the Wilmington Police, and those agencies

were reluctant to share information with each other about their cases.

The detective testified he would therefore not have shared information

about the HiWay Inn killing with the Wilmington Police, including

Detective Moser.   The Court finds otherwise.         There is substantial

evidence that the Wilmington Police cooperated with the Delaware

State police in connection with the HiWay Inn murder:

       • The entire operation was geared toward obtaining evidence
         in the HiWay Inn case. Detective Merrill met with the
         Wilmington Police in the early morning prior to the
         execution of the arrest and search warrants. He was
         present when Wright was arrested and when his home was
         searched. When he was asked about the presence of
         Delaware State Police detectives Wilmington Detective
         Merrill testified:

             Q. And the Delaware State Police detectives?

             A. They were there also.

             Q. What was their reason for being there?

             A. It was their case. They were investigating another
             case and they thought there might be some evidence
             in this one.




                                    15
       • Detective Mayfield listened by remote connection
         as the Wilmington detectives interrogated
         Wright.

       • Detective Mayfield met with Detective Moser
         during the latter’s interrogation of Wright and
         urged Moser to “Keep it up. It takes a long time.
         Do the best you can. We don't have anything
         now, just try to get what you can.”

       • Detective Mayfield asked Detective Moser to sit
         in during the former’s interrogation of Wright.

       • Detective Mayfield again asked Detective Moser
         to sit in on his interrogation of co-perpetrator
         Lorinzo Dixon, who was arrested weeks later and
         who was not implicated in the unrelated city
         crimes for which Wright was arrested.

       • Detective Mayfield authored a contemporaneous
         report in which he wrote he and “the Wilmington
         Police Detectives worked hand in hand with
         suspects, informants and anonymous phone
         calls and/or messages, in developing a suspect.”

       • Detective Mayfield met with Detective Browne of
         the Wilmington Police to discuss whether the
         HiWay Inn killing could have been related to an
         attempted robbery of a nearby liquor store,
         which occurred roughly an hour before the
         HiWay Inn robbery/murder.

When the trial judge ruled that Detective Moser could not have fed

information   to   Wright   because    Moser   was   unaware   of   such

information, she did not know that Detective Mayfield conferred with

Detective Moser during the latter’s interrogation. In light of this new


                                  16
evidence and the other evidence described above, the Court now finds

it is more likely than not that Wright was fed information “that only

the killer would know.” 12

        It is against this factual backdrop that Wright challenges the

sufficiency of the Miranda warnings give to him. Detective Mayfield’s

warnings consisted of the following:

                 Basically, you have the right to remain silent. Anything
                 that you say can and will be used against you in a court
                 of law. You have the right, right now, at any time, to
                 have an attorney present with you, if you so desire.
                 Can't afford to hire one, if the state feels that you're
                 diligent and needs one, they'll appoint one for you. You
                 also have the right at any time while we're talking not to
                 answer.

He concluded his Miranda warnings with the following:

                 Do you understand what I’ve asked [sic.] you today?
                 Okay. Do you also understand that what we’re going to
                 be taking is a formal statement and that this statement’s
                 going to be video taped? Okay. Are you willing to give a
                 statement in regards to this incident? Say yes or no.

The alleged defect is that Wright was told: “Can't afford to hire one, if

the state feels that you're diligent and needs one, they'll appoint one

for you.”         Detective Mayfield denied he used the phrase “if you are

diligent” and insisted he said “if you are indigent.” In the past the

12
    The law of the case doctrine does not preclude this Court from changing its earlier finding. That doctrine is
discussed in some detail in the “Analysis” portion of this opinion. Suffice for now, the Delaware Supreme Court has
held “[t]he law of the case doctrine does not preclude this Court or the Superior Court from reexamining the prior
rulings in this case when the factual premises of those prior rulings are demonstrated to have been mistaken.” Hamilton
v. State, 831 A.2d 881, 887 (Del. 2003). Given the new evidence about Detective Mayfield conferring with Detective
Moser, the Court is not bound by the law of the case here.


                                                          17
State has asserted that, because of his experience, Detective Mayfield

most likely used the word “indigent.” According to the State, “[a]t the

time Detective Mayfield read Wright his Miranda warnings, he had

been a State Trooper for 9 years, and had made thousands of arrests

and administered Miranda warnings in all non-traffic arrests.”13 The

detective’s experience, however, hardly suggests that he gave proper

Miranda warnings here. A few weeks after giving Wright his Miranda

warnings, the detective once again had occasion to administer those

warnings, this time to Lorinzo Dixon. Once again he dropped the ball,

telling Dixon:

                   What I'm gonna do first is read your rights to you.
                   Okay? You have the right to remain silent. If you give up
                   your right to remain silent, anything you say can and will
                   be used against you in a court of law. You have the right
                   at any time to request a lawyer, if, ah, if you can afford it.
                   Or if you're, or if the court finds out that you're negligent
                   for it. Okay? You also at any time have the right to
                   answer any and all questions. Do you understand those
                   rights?

          In its 2012 opinion the Court found as fact that the detective

used the phrase “if you are diligent” when he administered the

warnings to Wright. There is more than ample evidence to support

this finding.             The transcript of that interrogation prepared by the

State Police reads “if you are diligent.”                        The State has sought to

13
     Supreme Court docket in No. 10, 2012, D.I. 34 at 14.

                                                            18
characterize this as a “typographical error,” yet it stipulated to the

accuracy of that transcript and Detective Mayfield also twice testified

it was accurate. The Court itself has reviewed the videotape of the

confession many times and finds that the detective used the phrase “if

you are diligent.” In a sense this is much ado about nothing because

even if the detective used the phrase “if you are indigent” the

warnings were flawed because he indisputably told Wright he could

have a court-appointed lawyer “if the State feels . . . [you] need[] one.”

Nonetheless, the Court notes that, for the reasons the second part of

the Analysis section below, the phrase “if you are diligent” in its own

right is sufficiently misleading to negate the effectiveness of the

warnings.

                             Procedural history

     Because the application of the law of the case is an issue here, it

is necessary to present more detail about the complex procedural

history than might ordinarily be required. Perhaps the clearest way

to do this is to summarize the salient procedural events in

chronological order.

        • Before his trial Wright moved before trial to suppress his
          confession, but did not assert the Miranda warnings given
          to him were inadequate. This Court found that Wright’s
          waiver of his Miranda rights was knowing, voluntary and

                                    19
                   intelligent, and denied the motion to suppress.        No
                   argument was made about the adequacy of the warnings
                   given by Detective Mayfield and there was no discussion of
                   those warnings in the court’s opinion.

              • Wright was tried before a jury and convicted of murder and
                related crimes. This Court sentenced him to death.

              • Wright appealed his conviction and sentence to the
                Supreme Court, which affirmed both in 1993.14

              • In 1994 Wright filed his first motion for post-conviction
                relief in which he challenged the adequacy of his
                representation at both the guilt and penalty phases of his
                trial.   This Court found that Wright had effective
                representation during the guilt phase, but that his
                representation during the penalty phase was ineffective. It
                therefore granted him a new penalty hearing. The result
                did not change after the second penalty hearing, and
                Wright was again sentenced to death.

              • In 1996 the Delaware Supreme Court affirmed the death
                penalty imposed after Wright’s second penalty hearing. It
                also affirmed this Court’s conclusion that Wright’s counsel
                was not ineffective during the guilt phase of his trial. 15

              • In 1998 Wright filed another motion for post-conviction
                relief.   One of his claims was that that “he received
                ineffective assistance of counsel in conjunction with his
                1992 trial and appeal.” The basis for that claim was, in
                part, his trial counsel’s failure to argue that his waiver of
                his Miranda rights was not knowing, intelligent and
                voluntary. There was no contention that the warnings
                themselves were inadequate. This Court denied Wright’s
                motion.16 It did not have occasion to review the warnings
                actually given to Wright and did not do so in its opinion.



14
     Wright v. State, 633 A.2d 329 (Del.1993).
15
     Wright v. State, 671 A.2d 1353, 1357-9 (Del. 1996).
16
     State v. Wright, 1998 WL 734771 (Del.Super.)

                                                           20
             • Wright appealed the denial of his 1998 Rule 61 motion, and
               in 2000 the Supreme Court affirmed by judgment order
               this Court’s 1998 denial of that motion. 17

             • Wright was resentenced after the Supreme Court affirmed
               the denial of his motion for post-conviction relief and his
               execution was scheduled for May 25, 2000. Two weeks
               before his scheduled execution Wright filed a petition for a
               writ of habeas corpus in the federal court, and that court
               promptly issued a stay of Wright’s execution.

             • In 2003, while the federal habeas corpus matter was
               pending, Wright filed his third motion for post-conviction
               relief. This Court stayed any resolution of that matter
               pending disposition of the petition for habeas corpus.

             • In 2008 Wright filed his fourth motion for post-conviction
               relief in this Court. At the time his third Rule 61 motion
               was still pending. Wright asked that consideration of his
               fourth motion be stayed. Shortly thereafter the parties and
               the federal court agreed it would be more efficient if this
               Court were to first resolve the pending Rule 61 motions
               before it addressed the federal petition. 18

             • After this Court again took up the pending Rule 61
               motions, Wright filed an amended fourth motion in which
               he asserted an actual innocence claim.

             • In May 2009 Wright filed a “Consolidated” Rule 61 motion,
               which consolidated the claims presented in his third,
               fourth and amended fourth motions.

             • In September 2009 Wright amended the consolidated
               motion to present his Miranda claims. Thereafter followed
               a lengthy series of evidentiary hearings, briefings and oral
               arguments culminating in this Court’s 2012 opinion.

17
   Wright v. State, 2000 WL 139974 (Del.)
18
   Federal law requires that a petitioner exhaust all of his claims in the state court before presenting them in federal
court. 28 U.S.C. § 2254(b)(1)(A). At the time Wright’s federal petition was a “mixed petition,” meaning that it
contained both exhausted and unexhausted claims. The apparent purpose of the third and fourth Rule 61 motions was to
present the unexhausted claims in the state court. Rather than dismiss the mixed petition, the federal court allowed
Wright the opportunity to present those claims in state court.

                                                          21
              • In January, 2012 this Court issued an opinion in which it
                held that Wright’s conviction and sentence was
                constitutionally infirm and that Wright was entitled to a
                new trial. It found that (1) the Miranda warnings given to
                Wright were inadequate, and (2) exculpatory evidence had
                been withheld from him. 19

              • In 2013 the Supreme Court reversed this Court’s 2012
                decision and remanded the matter to this court for re-
                imposition of the death penalty. The Supreme Court found
                that Wright’s Miranda claims were procedurally barred by
                Superior Court Rule 61(i)(4). It found that Wright’s Brady
                claim was not procedurally barred, but a divided Court
                held that Wright had failed to show prejudice from the
                withholding of the evidence.20

              • This matter was remanded to this Court, which re-imposed
                Wright’s death penalty, whereupon Wright now appealed to
                the Delaware Supreme Court.       This time, in a 2014
                opinion, the Supreme Court found that possibly
                exculpatory evidence which this Court rejected in 2012,
                when coupled with other withheld exculpatory evidence,
                made out a claim of a constitutional violation sufficient to
                warrant a new trial. 21

              • The matter is now on remand, and Wright has moved to
                suppress his confession. This is the court’s opinion on that
                motion.



                                                        Analysis

          In Part I of this opinion the Court will consider the law of the

case doctrine and will explain why it does not bar consideration of


19
     State v. Wright, 2012 WL 1400932 (Del.Super.), rev’d 67 A.3d 319 (Del. 2013)
20
     State v. Wright, 67 A.3d 319 (Del. 2013)
21
     Wright v. State, 91 A.3d 972 (Del. 2014)



                                                         22
Wright’s Miranda argument. In Part II it will discuss why Miranda

warnings were inadequate.



I.      The law of the case doctrine does not bar Wright’s Miranda
        claim.

        In its 2013 opinion the Delaware Supreme Court held that

Wright’s Miranda claim was barred:

        The Superior Court decided to address the adequacy of Wright's Miranda
        warnings sua sponte. It listened to the same videotaped confession that was
        the subject of a motion to suppress before trial; a claim of error on direct
        appeal; the second Rule 61 motion; and the appeal of that motion. Each
        challenge was rejected after addressing Wright's understanding of his
        Miranda rights. In deciding Wright's fourth postconviction motion, the
        Superior Court did not have any new evidence upon which to conclude that
        Wright's warnings were defective. “[A] defendant is not entitled to have a
        court re-examine an issue that has been previously resolved ‘simply
        because the claim is refined or restated.’ ” Wright did not ask for that relief,
        but if he had, there would be no basis on which to find that he overcame
        the procedural bar 22



At first blush it may seem strange for this Court to hold that Wright’s

Miranda claim is not barred when in 2013 the Supreme Court held

that the claim was procedurally barred by the procedural rule

governing motions for post-conviction relief.                                  The result is different

here because different procedural rules are in play.                                            In 2013 the


22
    State v. Wright, 67 A.3d 319, 323 (Del. 2013). The Supreme Court was apparently misinformed about what
occurred in this case. Contrary to the statement that “Wright did not ask for that relief,” Wright filed an amended
motion expressly alleging that the Miranda warnings given to him were defective. And contrary to the statement that
this court “addressed the issue sua sponte,” there were multiple rounds of briefing and oral arguments specifically
addressing the Miranda issue.

                                                         23
Supreme Court held that Criminal Rule 61(i)(4)23 barred consideration

of Wright’s Miranda claim because the admissibility of his confession

had previously been adjudicated. 24 In the Supreme Court’s words,

under Rule 61 a “defendant is not entitled to have a court re-examine

an issue that has been previously resolved simply because the claim

is refined or restated.” 25                       But this is no longer a post-conviction

proceeding, and, as the State tacitly concedes,26 Criminal Rule 61(i)(4)

no longer applies. 27                  It shows no disrespect to the Supreme Court,

therefore, for this Court to again consider the Miranda claim is

procedurally barred.

         No doubt there are some similarities between Rule 61(i)(4) and

the law of the case doctrine,28 but there is at least one critical

difference:              The law of the case doctrine—unlike Criminal Rule

61(i)(4)—applies only to “specific issues” which have actually been

litigated and decided. Although the Supreme Court and this Court

have previously considered certain contentions about Wright’s

confession, the adequacy of his Miranda warnings was not among
23
    At the time of the Supreme Court’s 2013 opinion Criminal Rule 61(i)(4) provided that any post-conviction ground
“for relief that was formerly adjudicated ... is thereafter barred, unless reconsideration of the claim is warranted in the
interest of justice.”
24
    State v. Wright, 67 A.3d 319, 323 (Del. 2013).
25
    Id. (internal quotation marks omitted).
26
    The State does not rely upon Criminal Rule 61 in its response to the motion to suppress.
27
    The State tacitly concedes the point because it does not argue that the Supreme Court’s holding is dispositive of the
issue here. Nor does it argue that Criminal Rule 61, upon which the Supreme Court relied, still applies here.
28
    Hoskins v. State, 102 A.3d 724, 729 (Del. 2014).

                                                            24
them. Because this “specific issue” has never been decided in this

matter, those previous rulings are not law of the case with respect to

this issue.

     Before discussing the doctrine the court must mention some

shorthand it has decided to employ.      Throughout this opinion this

court refers to the fact that Wright never previously presented, and

the courts never decided, whether the Miranda warnings given to him

were adequate. In point of fact, Wright did raise the issue in 2009

and it was decided in his favor in this court’s 2012 opinion. The

Supreme Court reversed without reaching the merits of the Miranda

claim. The State does not contend for present purposes that the

rulings following Wright’s assertion of his Miranda claim constitute

law of the case.      It argues instead that rulings made before he

asserted that claim are law of the case. Rather than repeatedly draw

this distinction throughout this opinion the court, except where

otherwise noted, will be referring to the rulings occurring before

Wright asserted his claim.

     A. The doctrine applies only to issues which were actually
        decided.

              The Delaware Supreme Court has recently described the

law of the case doctrine in Hoskins v. State wherein it wrote:

                                   25
                   Under the law of the case doctrine, issues resolved by
                   this Court on appeal bind the trial court on remand, and
                   tend to bind this Court should the case return on appeal
                   after remand. The ‘law of the case’ is established when a
                   specific legal principle is applied to an issue presented by
                   facts which remain constant throughout the subsequent
                   course of the same litigation The law of the case doctrine
                   requires that there must be some closure to matters
                   already decided in a given case by the highest court of a
                   particular jurisdiction. Yet the doctrine is not inflexible
                   in that, unlike res judicata, it is not an absolute bar to
                   reconsideration of a prior decision that is clearly wrong,
                   produces an injustice or should be revisited because of
                   changed circumstances. 29

An essential element of the doctrine is that the “specific legal

principle” has previously been applied. 30 In other words, the issue in

question            must         have         been        “actually           decided”           in      the   earlier

proceeding. 31               Our Supreme Court has repeatedly stated in one

fashion or another that a fundamental principle of the law of the case

doctrine is that the specific issue must actually have been decided:

               • “The ‘law of the case’ is established when a specific legal
                 principle is applied to an issue presented by facts which
                 remain constant throughout the subsequent course of the
                 same litigation.”32
               • “The prior decisions by this Court on any adjudicated issue
                 . . . became the law of the case in all subsequent stages of
                 his continuing criminal proceedings.” 33

               • “[A] court's decision in the first appeal is the law of the case
                 on all questions involved and decided.”34

29
     Id. at 729 (emphasis in original) (internal alterations, footnotes, and quotation marks omitted).
30
     Id. (internal quotation marks omitted).
31
     May v. Bigmar, Inc., 838 A.2d 285, 288 n.8 (Del. Ch. 2008).
32
     Kenton v. Kenton, 571 A.2d 778, 784 (Del.1990) (emphasis added).
33
     Brittingham v. State, 705 A.2d 577, 579 (Del. 1998) (emphasis added).

                                                             26
              • “The doctrine is not inflexible, however. It applies only to
                those matters necessary to a given decision and those
                matters which were decided on the basis of a fully
                developed record. Where, as here, this Court could not
                have envisioned the full factual posture of a particular
                claim, the prior ruling cannot be considered to be the law of
                the case.”
                  35

              • “Arguments which have been previously adjudicated
                resulting in rulings which became the law of the case may
                not be reasserted in later proceedings.” 36

              • “The doctrine of law of the case, a doctrine referring to the
                principle that issues once decided in a case, that recur in
                later stages of the same case, are not to be redetermined,
                could be applicable here if the issue was actually litigated
                and necessary to the court's judgment.”37

              • “[T]he trial court on remand is not constrained by the
                mandate as to issues not addressed on appeal.” 38

              • Although the trial court is required to make a
                determination consistent with the appellate court's review,
                it is also “free to make any order or direction in further
                progress of the case, not inconsistent with the decision of
                the appellate court not settled by the decision.” 39

          The federal courts also hold that the law of the case doctrine

applies only to issues which have actually been decided. “The law-of-

the-case doctrine only applies to issues the court actually decided.”40


34
     Marine v. State, 624 A.2d 1181, 1184 n.5 (Del. 1993) (emphasis added).
35
     Zirn v. VLI Corp., 681 A.2d 1050, 1062 n.7 (Del. 1996) (emphasis added).
36
     Fenton v. State, 567 A.2d 420, 1989 WL 136962, at *1 (Del. 1989) (TABLE) (emphasis added).
37
     French v. French, 622 A.2d 109, 1992 WL 453269, at *3 (Del. 1992) (TABLE) (emphasis added).
38
     Cede & Co. v. Technicolor, Inc.884 A.2d 26, 38 (Del. 2005) (emphasis added).
39
     Motorola Inc. v. Amkor Technology, Inc., 958 A.2d 852, 859 (Del. 2008) (emphasis added).
40
     John B. v. Emkes, 710 F.3d 394, 403 (6th Cir. 2013).

                                                       27
This means that the issues “were fully briefed and squarely decided in

an earlier appeal.” 41 According to the United States Supreme Court,

the law of the case doctrine “presumes a hearing on the merits” and it

will not apply when the                           “case does not involve a previous

consideration of the merits.”42 In short, as a federal court of appeals

put it, the “law of the case doctrine precludes a court from

reconsideration of identical issues.” 43

        The       doctrine’s         requirement             that     the      “specific        issue”       has

previously been raised gives rise to the key difference between the law

of the case doctrine and the procedural bars found in Criminal Rule

61: the law of the case doctrine does not extend to issues which could

have been raised but were not. Retired Superior Court Judge Bernard

Balick,44 the draftsperson of Rule 61, included 61(i)(4) because “[i]t is

essential to have some principle of res judicata for issues that were

previously decided.” 45 However, the law of the case doctrine is not as

broad as res judicata and does not reach issues which “could have

been” presented. In Insurance Company of America v. Barker, the
41
   Perkins v. Am. Elec. Power Fuel Supply, Inc., 91 F. App'x 370, 374 (6th Cir. 2004) (quoting 1B James Wm. Moore,
Moore's Federal Practice ¶ 0.404[1], at II–5 (2d ed.1996)).
42
   United States v. Hatter, 532 U.S. 557, 566 (2001).
43
   McKenzie v. BellSouth Telecomm., Inc., 219 F.3d 308, 512 n.3 (6th Cir. 2000) (quoting Hanover Ins. Co. v. Am.
Eng’g Co., 105 F.3d 306, 312 (6th Cir. 1997)(emphasis added)..
44
   Judge Balick also served with distinction as a Vice Chancellor of the court of chancery.
45
   B. Balick, Proposed Rule for Post Conviction proceedings in the Superior Court of the State of Delaware.
Reported at 2012 WL 1400932 *52 (Del.Super.)


                                                        28
Delaware Supreme Court held that “[t]he law of the case does not

have the finality of res judicata since it only applies to “litigated issues

and does not reach issues which could have been but were not

litigated.” 46 This principle is commonly applied in other jurisdictions,

including opinions from other jurisdictions cited by the Delaware

Supreme Court. For example, in law of the case matters our Supreme

Court has relied upon47 the Third Circuit’s opinion in Bankers Trust

Co. v. Bethlehem Steel Corp. 48 There the Third Circuit held that when

determining whether an opinion constitutes law of the case that

opinion must be considered “with particular reference to the issues

considered.”49

        The Delaware Supreme Court’s opinion in In re Walt Disney

Derivative Litigation illustrates the necessity of determining precisely

what was decided in the earlier ruling:

                 The appellants base their contrary argument upon their
                 reading of this Court's opinion in Brehm v. Eisner. A
                 “central holding” of Brehm, which the appellants claim is
                 the “law of the case,” is that the Disney board had a duty
                 to approve the OEA because of its materiality. The
                 appellants misread Brehm. There, in upholding a
                 dismissal of the complaint in a procedural setting where
                 the complaint's well-pled allegations must be taken as
                 true, we observed that “in this case the economic

46
   628 A.2d 38, 41 n.5 (Del. 1993).
47
   Insurance Co. of Am. v. Barker, 628 A.2d 38 (Del. 1993); Cede & Co. v. Technicolor, Inc., 884 A.2d 26 (Del. 2005);
Wright v. Moore, 953 A.2d 223 (Del. 2008).
48
   761 F.2d 943 (3d Cir. 1985)
49
   Id. at 950.

                                                         29
                  exposure of the corporation to the payout scenarios of
                  the Ovitz contract was material, particularly given its
                  large size, for purposes of the directors' decision-making
                  process.” Contrary to the appellant's position, that
                  observation is not the law of the case, because in Brehm
                  this Court was not addressing, and did not have before it,
                  the question of whether it was the exclusive province of
                  the full board (as distinguished from a committee of the
                  board) to approve the terms of the contract. . . .Therefore,
                  in deciding the issue of which body-the full board or the
                  compensation committee-was empowered to approve the
                  OEA, the Chancellor was not constrained by any
                  pronouncement made in Brehm. 50

Thus, this Court is tasked with examining the earlier opinions in this

matter to determine whether any court has specifically held that the

Miranda warnings actually given to Wright were adequate. No such

holding exists.

         B. Neither the Supreme Court nor this Court has ever
            addressed the adequacy of the Miranda warnings given to
            Wright.

         In his motion to suppress Wright made the point that no court

has ever considered the adequacy of the Miranda warnings given to

him. The State did not dispute that in its response, but instead relied

upon rulings that Wright’s waiver was voluntary or that his

confession was voluntary.51                              Ever since Wright first raised his

Miranda claim the State has responded with this contention.                                                         For


50
    906 A.2d 27, 54 (Del. 2006) (emphasis added).
51
    For example, on one occasion this Court summarized its earlier rulings, noting that “the Court [previously]
examined the totality of circumstances including the behavior of the interrogators, the conduct of the defendant, his age,
his intellect, his experience, and all other pertinent factors.”

                                                           30
example, in its brief before the Delaware Supreme Court, for example,

the State wrote “[n]o issue has been more heavily litigated in Wright’s

case than the voluntariness of his confession.52 In that same brief it

asserted          that      this       Court’s         earlier        opinions          were        about          the

“voluntariness of Wright’s confession.” 53 But these considerations are

distinct from the adequacy of the warnings given to Wright.

        To be effective, a waiver of Miranda rights must be “knowing,

intelligent and voluntary.” 54 The adequacy of the warnings given to

the suspect goes to the “knowing and intelligent” standard:                                                    “The

Miranda warnings ensure that a waiver of these rights is knowing and

intelligent by requiring that the suspect be fully advised of this

constitutional privilege.”55 On the other hand, the “voluntariness” of

the waiver encompasses the suspect’s mental state and his “capacity

for self-determination.” 56                     In Moran v. Burbine the United States

Supreme Court wrote:

                 Miranda holds that the defendant may waive effectuation
                 of the rights conveyed in the warnings provided the
                 waiver is made voluntarily, knowingly and intelligently.
                 The inquiry has two distinct dimensions. First, the
                 relinquishment of the right must have been voluntary in
                 the sense that it was the product of a free and deliberate
52
   Supreme Court docket in No. 10, 2012, D.I. 34 at 6.
53
   Id. at 18 (“The now-retired Superior Court Judge considered the voluntariness of Wright’s confession in three
separate opinions.”).
54
   Maryland v. Shatzer, 559 U.S. 98, 104 (2010).
55
   Colorado v. Spring, 479 U.S. 564, 74 (1987) (internal citations omitted).
56
   Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).

                                                          31
                 choice rather than intimidation, coercion, or deception.
                 Second, the waiver must have been made with a full
                 awareness of both the nature of the right being
                 abandoned and the consequences of the decision to
                 abandon it. Only if the totality of the circumstances
                 surrounding the interrogation reveals both an uncoerced
                 choice and the requisite level of comprehension may a
                 court properly conclude that the Miranda rights have
                 been waived. 57

Not surprisingly the Delaware Supreme Court has drawn the same

distinction.58            Consequently, the judicial findings upon which the

State relies—that Wright’s waiver of his Miranda rights was voluntary

or that his confession was voluntary—are not law of the case. 59

        Turning to the rulings themselves, the Court will begin its review

with those cited by the Delaware Supreme Court when it held that

Criminal Rule 61 barred consideration of the adequacy of the Miranda

warnings. In its 2013 Wright opinion 60 the Supreme Court cited two of

its rulings and two rulings of this Court for the proposition that “the

admissibility of Wright's confession has been challenged and upheld

repeatedly.” 61 They are discussed separately below.




57
   475 U.S. 412, 421 (1986) (emphasis added) (internal citations and internal quotation marks omitted).
58
   E.g., Markward v. State, 667 A.2d 1319, 1995 WL 496947, at *2 (Del. 1995) (TABLE); Marine v. State, 607 A.2d
1185, 1195-96 (Del. 1992).
59
   There are occasions when this Court wrote that Wright’s waiver of his Miranda rights was “knowing, intelligent and
voluntary.” In each of those opinions, however, the only issue presented was whether his waiver was “voluntary;” the
adequacy of the warnings given him was never argued.
60
   State v. Wright, 67 A.3d 319 (Del. 2013).
61
   Id. at 323. The cases discussed in the text were cited in footnote 12 of the Supreme Court’s opinion.

                                                         32
                   Wright v. State, 633 A.2d 329, 334–35 (Del.1993).

          This is the Supreme Court’s opinion on Wright’s direct appeal

from his conviction. The Miranda warnings given to Wright were never

mentioned in this opinion and their adequacy was never discussed.

The Supreme Court listed the issues presented by Wright in that

appeal:

                   Wright raises five separate claims on appeal: (1) his
                   incriminating statements should have been suppressed
                   because they were obtained following an unreasonable
                   delay between arrest and initial presentment; (2) jury
                   instructions during the penalty phase of his trial were
                   insufficient in defining mitigating circumstances; (3) the
                   trial judge erred in her determination of non-statutory
                   aggravating       circumstances        and       mitigating
                   circumstances; (4) imposition of the death sentence was
                   disproportionate to the penalty imposed in similar cases;
                   and (5) application to Wright of the death penalty statute,
                   as revised after the date of the offenses, violated the Ex
                   Post Facto Clause of the United States Constitution. 62

As the highlighted portion shows, there was a dispute about the

admissibility of Wright’s statement, but this dispute had nothing to do

with the Miranda warnings given him. Rather, it turned on whether

“there was an unreasonable delay between arrest and presentment.”

The Supreme Court’s conclusion in its 1993 opinion confirms that its

decision about the statement’s admissibility was limited to this issue:

                   Wright was arrested shortly after the 6:00 a.m. raid on
                   his residence. After administrative matters were
                   concluded, questioning of him began around noon. For

62
     Wright v. State, 633 A.2d 329, 333 (Del. 1993).

                                                       33
                   the next eight and one-half hours, he willingly spoke with
                   detectives concerning various crimes about which he had
                   knowledge, waiving his Miranda rights three times. He
                   was given food, drink, and opportunities to use the
                   restroom in a non-threatening atmosphere. As counsel
                   for the State observed at oral argument, the length of the
                   interrogation and resulting delay in presentment was
                   largely the result of the fact that Wright had a lot to say
                   and was willing to say it. Under such circumstances, the
                   trial court's determination that there was no unreasonable
                   delay is clearly supported by the record and the product
                   of    an     orderly  and     logical  deductive   process.
                   Consequently, Wright's first claim of error must be
                   rejected. 63

Finally, any lingering doubt that this opinion did not concern

constitutional issues arising from Miranda is quickly dispelled by the

Supreme Court’s comment that “Wright concedes that the question of

whether there was unreasonable delay is purely one of statutory

construction under Delaware law.”64


                   Wright v. State, 746 A.2d 277, 2000 WL 139974 (Del. 2000 ).

          This is a judgment order of the Delaware Supreme Court

affirming this Court’s 1998 denial of an earlier Rule 61 petition by

Wright. The order reads in its entirety:

                   This 18th day of January 2000 upon consideration of the
                   decisions of the Superior Court dated September 28,
                   1998 and December 18, 1997 and the briefs of the
                   parties and their contentions in oral argument, it
                   appears to this Court that: to the extent the issues raised
                   on appeal are factual, the record evidence supports the
                   trial judge's factual findings; to the extent the errors
63
     Id. at 336.
64
     Id. at 334.

                                               34
                    alleged on appeal are attributed to an abuse of
                    discretion, the record does not support those assertions;
                    and to the extent the issues raised on appeal are legal,
                    they are controlled by settled Delaware law, which was
                    properly applied. 65


As is usually the case with such orders, there is no reference to the

specific issues considered by the Supreme Court, so it is necessary to

refer to the trial court’s opinion to determine precisely what has been

affirmed. That opinion is discussed immediately below; suffice it to

say the adequacy of the Miranda warnings was never an issue.


              State v. Wright, 1998 WL 734771 (Del.Super. Sept. 28, 1998).

           As mentioned, this is the Superior Court opinion which gave rise

to the Supreme Court’s 2000 judgment order. It arose from Wright’s

second motion for post-conviction relief. The argument presented by

Wright and decided by this Court did not concern the adequacy of the

Miranda warnings actually given to Wright. Instead, Wright argued

his heroin intoxication made it impossible for him to knowingly and

voluntarily waive his rights.                              This court summarized Wright’s

contentions in its opinion:

                    Wright claims that his trial counsel was ineffective
                    because he did not present evidence or argue that Wright's
                    heroin intoxication at the time of his confession rendered
                    him incapable of knowingly and intelligently waiving his

65
     Wright v. State, 746 A.2d 277, 2000 WL 139974, at*1 (Del. 2000).

                                                          35
                   Miranda rights. As a preliminary matter, the Court
                   observes that, whether argued with particularity by
                   counsel or not, the matter of Wright's knowing and
                   intelligent waiver of his Miranda rights was addressed in
                   Wright's suppression motion 66

The Court never analyzed, or even mentioned, the actual warnings

given to Wright.

          Insofar as the confession itself is concerned, this Court focused

on Wright’s ability to understand the “words that the officers used

during the interrogation.” That issue turned on Wright’s mental state,

not the language of the warnings given to him:

                   Although his testimony at the post conviction evidentiary
                   hearing was learned and informative, Dr. Maslansky
                   added no new information or analysis to his previous
                   testimony at the 1992 guilt-phase trial. The value of Dr.
                   Maslansky's ultimate conclusions is undermined by its
                   lack of foundation. Dr. Maslansky was unaware, for
                   example, that Wright already had a familiarity with his
                   Miranda rights from previous arrests or that Wright had
                   received Miranda warnings a number of times before
                   giving his videotaped testimony.         Dr. Maslansky's
                   conclusions about the effect of heroin on Wright's ability
                   to comprehend the questions posed during his
                   interrogation were based on Wright's own estimate of
                   how much heroin he had ingested. Such information was
                   never corroborated and is inherently suspect. At the
                   hearing, Dr. Maslansky further conceded that Wright
                   understood the words that the officers used during the
                   interrogation, that there was no thought disorder, and that
                   Wright was responsive to the officers' questions. Finally,
                   in earlier testimony that Dr. Maslansky gave during
                   Wright's 1992 trial, he stated that Wright demonstrated
                   an awareness of the consequences of what he said
                   regarding his role in the murder in that he gave an



66
     State v. Wright, 1998 WL 734771, at *5 (Del. Super. Sept. 28, 1999) (emphasis added).

                                                          36
                  explanation for what he did: He had to shoot Seifert or
                  Dixon would have shot him. 67


          As close as this Court got to the adequacy of the Miranda

warnings was to mention that Wright was aware of his right to remain

silent. Once again, however, this was raised, however, in the context

of his ability to understand and was not an examination of the

warnings themselves:

                  That Wright may not have fully grasped the ultimate
                  consequences of his statements does not save him from
                  his decision to speak when he knew he had the right to
                  remain silent. A criminal suspect need not know and
                  understand every possible consequence of a waiver of the
                  Fifth Amendment privilege, and the police are not
                  required to advise a suspect on every nuance of
                  constitutional law as to whether he should speak or
                  stand by his rights. 68



In sum, nothing in this Court’s 1998 opinion even purports to be a

ruling on the adequacy of the warnings.


          State v. Wright, 1992 WL 207255 (Del. Super. Aug. 6, 1992).

          The adequacy of the Miranda warnings was not contested in the

motion giving rise to this opinion either. Instead the issue addressed

in this opinion related to the delay in bringing Wright before a judicial

officer and the length of his interrogation:

67
     Wright, 1998 WL 734771, at *6 (emphasis added) (internal footnotes omitted).
68
     Id.

                                                          37
                  There are two concerns which must be addressed
                  regarding the time that the police interviewed the
                  defendant: first, the defendant alleges that he should
                  have been presented after Detective Merrill's interview
                  regarding the assault charge was completed; and second,
                  the lengthy period of time during which the defendant was
                  interviewed must be examined. 69

This Court’s holding confirms that it was a question of the delay in

bringing Wright before a judicial officer—not the adequacy of the

Miranda warnings—which was decided:

                  There is no evidence in this case of unreasonable delay in
                  presenting the defendant to a judicial officer. The police
                  finished searching the defendant's home, attended
                  strategy meetings, interviewed Lester Mathis, and then
                  began to interview the defendant. The defendant did not
                  ask to end the interview or request the assistance of
                  counsel. Instead, he voluntarily gave information about
                  various crimes, including the Hi-Way Inn murder, to
                  Detective Moser. Because the length of the interview was
                  due to the defendant's continuing conversation with
                  Detective Moser, I hold that the delay was not
                  unreasonable. 70

          Having considered the rulings cited by the Supreme Court as

constituting procedural bars under Criminal Rule 61, this Court will

turn its attention to the remainder of the record. Perhaps the logical

place to start is the suppression hearing this Court conducted before

Wright’s trial. Wright did not raise the adequacy of the warnings in

his motion to suppress. Rather, he claimed “that his detention from

the time of arrest until the time the statement was made was

69
     State v. Wright, 1992 WL 207255, at *2 (Del. Super. Aug. 6, 1992) (emphasis added).
70
     Id. at *4.

                                                          38
unreasonable                and        in      violation           of      11       Del.C.         §1909          and

Super.Ct.Crim.R. 5(a).” 71                    Also, as the trial judge later wrote, “[a]t the

suppression hearing, the Court specifically considered whether Wright

had the capacity to know what he was saying.” 72

         None of this Court’s other pre-trial or trial rulings considered the

adequacy of the warnings.                              This Court has also examined the

Supreme Court’s 1996 opinion in which Wright appealed from the

denial of an ineffective assistance of counsel claim relating to his trial

counsel’s performance during the guilt phase of his trial, and in

which he appealed the re-imposition of the death penalty following his

second penalty hearing. 73                        No mention is made anywhere in that

opinion of the adequacy of the warnings given Wright.

         In its opposition to the current motion to suppress, the State

directs the Court’s attention to instances in which the name

“Miranda” was mentioned or implied:

             • “In this case, the interrogation began with a recitation of
               the Miranda rights.” 74




71
   Id. at *1.
72
   Wright, 1998 WL 734771, at *6.
73
   Wright v. State, 671 A.2d 1353 (Del. 1996).
74
   State’s Resp. at (D.I. # 510) (quoting State v. Wright, I.D. No. 91004136DI, D.I.# 28, at 16-17 (Del. Super. Oct. 31,
1991).

                                                           39
              • “Nor has the Defendant provided the Court with any proof
                that he did not understand the importance of his Miranda
                rights.” 75

              • “Dr. Maslansky was unaware, for example, that Wright
                already had a familiarity with his Miranda rights from
                previous arrests or that Wright had received Miranda
                warnings a number of times before giving his video-taped
                testimony.”76

              • “At the hearing, Dr. Maslansky further conceded that
                Wright understood the words that the officers used during
                the interrogation, that there was no thought disorder, and
                that Wright was responsive to the officer’s questions.” 77

              • “A criminal suspect need not know and understand every
                possible consequence of a waiver of the Fifth Amendment
                privilege, and the police are not required to advise a
                suspect of every nuance of constitutional law as to whether
                he should speak or stand by his rights.” 78

              • “Wright’s claim of ineffective [assistance of counsel] is
                procedurally barred under Rule 61(i)(4) as well as
                substantively without merit because the waiver of his
                Miranda rights was knowing and intelligent.”79

In none of the passages relied upon by the State (or in any other

passage, for that matter) was there even a mention of the actual

warnings given to Wright, much less a consideration of their

adequacy. There is no reason to believe, therefore, that the Supreme



75
     Id. at 6.
76
     Id. at 8-9 (quoting Wright, 1998 WL 734771, at *6).
77
     Id. at 9.
78
     Id.
79
     Id.

                                                           40
Court or this court has ruled on the adequacy of the warnings given

to Wright.


        C. The adequacy of the Miranda warnings                                                  was       never
           previously presented to any Court.

        Not only did the Supreme Court and this Court never decide

whether the Miranda warnings given Wright were adequate, they also

were never presented with this issue. It perhaps goes without saying

that the surest way to determine whether an argument was presented

is to examine the briefs or motions filed by the parties.                                            The Sixth

Circuit Court of Appeals recently articulated the significance of the

briefing when determining whether an issue was decided for purposes

of the law of the case doctrine:

                 Application of these doctrines is limited to those
                 questions necessarily decided in the earlier appeal. The
                 phrase necessarily decided describes all issues that were
                 fully briefed and squarely decided in an earlier appeal. 80

        The significance of the prior briefing in determining law of the

case questions is underscored by the Delaware Supreme Court’s long-

standing practice that it will not decide issues unless they were fully

briefed. For example, in Roca v. E.I. DuPont de Nemours and Company

the Court summarized the rule this way:

80
  Kindle v. City of Jeffersontown, Ky., 2014 WL 5293680, at *5 (6th Cir. 2014) (internal quotations and quotations
omitted).

                                                         41
                  This Court has held that the appealing party's opening
                  brief must fully state the grounds for appeal, as well as
                  the arguments and supporting authorities on each issue
                  or claim of reversible error. Casual mention of an issue
                  in a brief is cursory treatment insufficient to preserve the
                  issue for appeal and a fortiori no specific mention of a
                  legal issue is insufficient. The failure of a party appellant
                  to present and argue a legal issue in the text of an
                  opening brief constitutes a waiver of that claim on
                  appeal. Accordingly, we hold that, assuming arguendo
                  that Roca preserved the . . . issue in the Superior Court,
                  Roca abandoned and waived that issue in his appeal to
                  this Court by raising it for the first time at oral
                  argument. 81

Although Roca post-dates the Supreme Court’s opinions on Wright’s

appeals, the rule requiring full briefing to preserve an issue was the

same at the time of his appeals.82 In light of this, there is no reason

to believe that the Supreme Court would ever have ruled on the

adequacy of the Miranda warnings unless that issue had been briefed.

         This Court has reviewed the briefs and appendices in the two

aforementioned Supreme Court appeals.                                        Nowhere did the parties

present any argument to the Supreme Court on the adequacy of the

Miranda warnings given to Wright.                                 Indeed, Miranda was not even

mentioned in some of those briefs and mentioned only in passing in

others. In any event there was never a discussion in the briefing of

the requirements of Miranda:
81
   842 A.2d 1238, 1242-43 (Del. 2004).
82
   E.g, .Black v. State, 625 A.2d 278, 1993 WL 132989 (Del. 1993) (“The failure to brief an issue that was raised below
constitutes a waiver and abandonment of that issue on appeal”); Barr v. State, 571 A.2d 786, 1989 WL 160445, at *2 (Del.
1989) (Appellant “has failed to argue the point in his brief, or even to refer to it. We conclude that Barr has waived or
abandoned this contention.”).

                                                           42
        • In Wright’s direct appeal in 1993 neither Wright nor the
          State cited Miranda in any of their briefs, and neither side
          made mention in the briefs of the language used by
          Detective Mayfield in his warnings.


        • In his two briefs filed in connection with the Supreme
          Court’s 2000 decision Wright again did not cite Miranda.
          The State cited Miranda in passing on three occasions in its
          brief, but not in connection with the warnings given by
          Detective Mayfield. Once again, neither side referred to the
          language of the warnings given by Detective Mayfield, nor
          did either side include the transcript of those warnings in
          its appendix.     The Supreme Court therefore had no
          information in this appeal about the contents of the
          warnings given to Wright.


     This Court has similarly examined the papers filed with this

court in connection with its opinions. There was no reference to the

adequacy of the Miranda warnings in any of those papers. The Court

finds, therefore, that the adequacy of the Miranda warnings was never

presented to either this Court or the Supreme Court. It necessarily

follows that neither court ever decided the issue.


     D. Because the adequacy of the Miranda warnings was never
        decided, Wright’s arguments are not barred by law of the
        case.

     The hierarchical nature of our judicial system demands that an

inferior court faithfully adhere to the directions given it by an

appellate court.   This obligation is sometimes referred to as the

                                   43
“mandate rule.” That rule requires adherence to the decisions of the

appellate court but leaves the inferior court free to make such other

rulings as it sees fit.                 “While the mandate does not control a trial

court as to matters not addressed on appeal, the trial court is bound

to strictly comply with the appellate court's determination of any

issues expressly or impliedly disposed of in its decision.” 83 The

mandate is limited to only those matters which were actually decided.

The trial court is “free to make any order or direction in further

progress of the case, not inconsistent with the decision of the

appellate court not settled by the decision.” 84 Given that the Supreme

Court never decided or even took up the issue whether the warnings

given Wright were sufficient, its opinions do not prohibit this Court

from considering Wright’s Miranda argument.

         As discussed previously, this Court’s earlier decisions are not

law of the case insofar as Wright’s Miranda argument is concerned

because, like the Supreme Court, it never ruled on that argument.

But even assuming that this Court had, in fact, previously ruled on

Wright’s Miranda claims, such a ruling would not necessarily spell

their end. A court has considerably more flexibility when applying the

83
     Insurance Corp. of Am., 628 A.2d at 39.
84
     Motorola Inc., 958 A.2d at 860.

                                                 44
law of the case doctrine to its own decisions. In such instances the

doctrine “is not an absolute bar to reconsideration of a prior decision

that is clearly wrong, produces an injustice or should be revisited

because of changed circumstances.” 85                                    Under the circumstances

presented here, the Court would not feel constrained by the law of the

case doctrine to follow the hypothetical ruling by this Court. It is true

that the law of the case doctrine serves to promote finality and

judicial economy. But it was never intended to foster an injustice,

particularly in a capital case.                        Our Supreme Court has “recognized

the importance of finality in criminal litigation and especially in the

context of capital litigation. Balanced against that interest, however,

is the important role of courts in preventing an injustice.”86

Precluding review, under the banner of finality and judicial efficiency,

of a meritorious contention never previously raised is inconsistent

with this Court’s role of preventing injustice.                                      Almost seventy-five

years ago Hugo Black wrote:

                 Rules of practice and procedure are devised to promote
                 the ends of justice, not to defeat them. A rigid and
                 undeviating judicially declared practice under which
                 courts of review would invariably and under all
                 circumstances decline to consider all questions which
                 had not previously been specifically urged would be out

85
   Hoskins, 102 A.3d at 79 (quoting Gannet Co. v. Kanaga, 750 A.2d 1174, 1181 (Del. 2000).
86
   Zebroski v. State, 12 A.3d 1115, 1120 (Del. 2010). Our Supreme Court is “acutely sensitive to the special scrutiny
capital cases merit on review.” Jackson v. State, 21 A.3d 27, 37 (Del. 2011).

                                                          45
                  of harmony with this policy. Orderly rules of procedure
                  do not require sacrifice of the rules of fundamental
                  justice. 87

The same holds true today.

          In sum, because neither the Supreme Court nor this Court has

ever been presented with and never decided the specific issue whether

the warnings given to Wright were adequate, his Miranda claims are

not barred by the doctrine of the law of the case.


II. Wright’s confession must be suppressed because the warnings
given to him by the interrogating detective do not satisfy
Miranda.

          Courts do not require police officers to recite the warnings

exactly as they appear in the Miranda opinion. Rather, officers are

free to use whatever language they want so long as it reasonably

conveys the essence of the warnings in Miranda and does not suggest

any limitation on the so-called rights. The warnings given to Wright

are deficient because they suggest a limitation on Wright’s right to

court-appointed counsel. In particular, the officer told Wright he was

entitled to a court-appointed attorney “if the State feels . . .[you]

need[] one.”             This, of course, is untrue—Wright’s entitlement to a

court-appointed attorney is not a matter of grace from the State.


87
     Hormel v. Helvering, 312 U.S. 552, 557 (1941).

                                                      46
Rather, he had an absolute right to a court-appointed attorney if he

wanted one. The warnings given to him fail to satisfy Miranda and the

ensuing statement must, as a matter of law, be suppressed.

           A. The warnings given to Wright.

          The first step in analyzing the sufficiency of the warnings is to

identify precisely which of them must be scrutinized.                   In its 2012

opinion this Court addressed whether the State was required to

refresh the Miranda warnings allegedly give to Wright before

interrogations preceding Detective Mayfield’s. The Court weighed the

required factors set forth in Ledda v. State 88 and concluded:

                  Perhaps no single factor discussed above would have
                  required re-administration of the Miranda warnings, but
                  after considering the circumstances in their totality of
                  the circumstances, including the Ledda factors and
                  Wright's obviously impaired condition, the court finds
                  that Detective Mayfield was obligated to re-administer
                  the warnings to Wright before he began his
                  interrogation. 89

The State did not challenge this Court’s application of Ledda when it

appealed that decision. More importantly, in the instant motion to

suppress Wright expressly relied upon this Court’s ruling that a

balancing of the Ledda factors required that Detective Mayfield give a

new set of warnings to him. Yet, the State again chose not to dispute


88
     564 A.2d 1125 (Del.1989).
89
      Wright, 2012 WL 1400932, at*44.

                                            47
this holding. It is well settled that the failure to brief an argument

constitutes a waiver of that argument. 90 The State’s silence is

therefore dispositive of this issue, and the court adheres to its earlier

ruling that Detective Mayfield was required to give a fresh set of

Miranda warnings to Wright. Accordingly, the issue here is whether

the specific warnings given by Detective Mayfield satisfy Miranda. 91

          B.       The requirements of Miranda.

          A core principle of the Bill of Rights is that coerced confessions

are not admissible in the trial of the accused. The Fifth Amendment

provides that no person “shall be compelled in any criminal case to be

a witness against himself.” Over the years the Supreme Court “has

recognized and applied several prophylactic rules designed to protect


90
     Superior Court Criminal Rule 12(f) provides:

          (f) Effect of Failure to Raise Defenses or Objections. Failure by a party to raise defenses or
          objections or to make requests which must be made prior to trial, at the time set by the court pursuant
          to subdivision (c), or prior to any extension thereof made by the court, shall constitute waiver thereof,
          but the court for cause shown may grant relief from the waiver.

The State has never asked for relief from its decision not to brief the Ledda-issue. Consequently, the State has waived
any argument that this court incorrectly applied Ledda. Brown v. United Water Del., Inc, 3 A.3d 272, 276 (Del. 2010)
(party’s decision not to brief issue in Superior Court constitutes waiver).
91
    Even assuming the State had not waived any argument that Detective Mayfield was required to refresh the Miranda
warnings, it is questionable whether the State could successfully rely on the earlier warnings allegedly given to Wright.
“Under Miranda the burden of proving that proper warnings were given is on the government. . . . While there was
testimony that the police officers read to appellant a card concerning his rights, the evidence does not demonstrate that a
constitutionally adequate warning was given. The government's burden may not be met by presumptions or inferences
that when police officers read to an accused from a card they are reading Miranda warnings or that what is read, without
revelation of its contents, meets constitutional standards.” Moll v. United States, 413 F.2d 1233, 1237-38 (5th Cir.
1969). If the State had failed to prove that adequate warnings had been given to Wright by Detective Merrill or
Detective Moser Wright’s confession would possibly be suppressed because a statement given after a Miranda warning
is inadmissible of the defendant first gave an unwarned confession. Missouri v. Seibert, 542 U.S. 600 (2004). Because
of this court’s unchallenged Ledda-ruling it need not reach these issues.

                                                             48
the core privilege against self-incrimination.”92 Foremost among these

is the proverbial landmark 1966 decision in Miranda v. Arizona. 93

Before Miranda the admissibility of a confession was determined

solely on the basis whether it was “voluntary” as that term was

understood under the Due Process Clause.94 The Miranda Court

“presumed that interrogation in certain custodial circumstances is

inherently          coercive         and       that       statements            made         under         those

circumstances are inadmissible unless the suspect is specifically

informed of his Miranda rights and freely decides to forgo those

rights.” 95 According to the Miranda court, the defendant

                 [M]ust be warned prior to any questioning that he has
                 the right to remain silent, that anything he says can be
                 used against him in a court of law, that he has the right
                 to the presence of an attorney, and that if he cannot
                 afford an attorney one will be appointed for him prior to
                 any questioning if he so desires. 96


The prophylactic Miranda warnings are “not themselves rights

protected by the Constitution but [are] instead measures to insure

that the right against compulsory self-incrimination [is] protected.” 97


92
    United States v. Pantene, 542 U.S. 630, 637 (2004).
93
    384 U.S. 436 (1966).
94
    E.g., Haynes v. Washington, 373 U.S. 503, 513-14 (1963) (Defendant's written confession was involuntary and
therefore inadmissible where it was made while the defendant was held by the police incommunicado and after he was
told by police officers that he could not communicate by telephone with his wife until after he made written
confession.).
95
    New York v. Quarles, 467 U.S, 649, 654 (1984).
96
    384 U.S. at 479.
97
    Michigan v. Tucker, 417 U.S. 443, 444 (1974).

                                                        49
           The United States Supreme Court has, on several occasions,

visited the issue whether particular warnings given to a suspect

complied with the requirements of Miranda. The Court’s most recent

such occasion was Florida v. Powell 98 which, the State contends is

central to this issue. Powell cannot be considered in a vacuum

because, as the Court wrote,          “[o]ur decisions in Prysock[ 99] and

Duckworth[ 100] inform our judgment here.”101 Taken together, these

three opinions—Prysock, Duckworth, and Powell—provide guidelines

for evaluating the sufficiency of warnings given to a suspect. Most

notable among them is the principle that the warnings cannot convey

a limitation on the rights Miranda requires to be conveyed to the

suspect.

                              California v. Prysock 102

           The defendant in this case contended that although the

warnings conveyed to him that he had the right to counsel during

questioning, they did not explicitly state that he had the right to court-




98
      559 U.S. 50 (2010).
99
      453 U.S. 355 (1981).
100
       492 U.S. 195 (1989).
101
       559 U.S. at 60.
102
       453 U.S. 355 (1981).

                                      50
appointed counsel during questioning. 103 The defendant was advised

in pertinent part as follows:

                   You have the right to talk to a lawyer before you are
                   questioned, have him present with you while you are
                   being questioned, and all during the questioning. Do you
                   understand this?

                                                            ***

                   You all, uh,—if,—you have the right to have a lawyer
                   appointed to represent you at no cost to yourself. Do you
                   understand this? 104

The Court’s analysis began with the principle that Miranda and its

progeny do not require a strict, talismanic incantation of the warnings

as they were articulated in Miranda. 105 What is required, however, is

that the warnings touch all four bases, that is, they must reasonably

convey all four of the Miranda warnings, without suggesting a

limitation on any of those rights.

          The Prysock Court compared the warnings given to the

defendant with warnings in two lower court cases in which the courts

found the warning to be inadequate.106 In one case the defendant was

advised she had “an attorney appointed to represent you when you

first appear before the U. S. Commissioner or the Court.”107 In the


103
      See id. at 558-59.
104
      Id. at 357.
105
      Id. at 359-60.
106
      Id. at 360-61.
107
      United States v. Garcia, 431 F.2d 134, 134 (9th Cir. 1970) (per curiam).

                                                            51
other the defendant was told “if he was charged ... he would be

appointed counsel.”108                       The warnings in these two cases were

defective, according to the Supreme Court, because “[i]n both

instances the reference to appointed counsel was linked to a future

point in time after police interrogation, and therefore did not fully

advise the suspect of his right to appointed counsel before such

interrogation.” 109 The Supreme Court found the warnings given to

Prysock to be critically different because “[h]ere, in contrast, nothing

in the warnings given [Prysock] suggested any limitation on the right to

the presence of appointed counsel different from the clearly conveyed

rights to a lawyer in general.” 110 The proverbial bottom line is: he

warnings cannot suggest a limitation on the right to appointed

counsel.


                                                Duckworth v. Eagan

        The second case in the trilogy is Duckworth v. Eagan, 111 where

police gave the defendant the following warning:


108
    People v. Bolinski, 67 Cal.Rptr. 347, 355 (Cal. App.1968).
109
    453 U.S. at 360.
110
    Id. at 360-61.
111
    492 U.S. 195, 198 (1989) (emphasis in original). Eagan made an ostensibly exculpatory statement after receiving
the warnings quoted in the text. Id. The next day Eagan was questioned a second time. Id. Prior to that questioning he
signed a form in which he acknowledged he was told “that if I do not hire an attorney, one will be provided for me.” Id.
at 199. Eagan admitted his participation in the crime during the second round of questioning. Id. The issue before the
Supreme Court turned on the adequacy of the first warnings. Id. at 201-02. The warnings given Eagan before his
second interrogation did not figure in the Supreme Court’s analysis. Id. at 203-05.

                                                          52
                    Before we ask you any questions, you must understand
                    your rights. You have the right to remain silent. Anything
                    you say can be used against you in court. You have a
                    right to talk to a lawyer for advice before we ask you any
                    questions, and to have him with you during questioning.
                    You have this right to the advice and presence of a
                    lawyer even if you cannot afford to hire one. We have no
                    way of giving you a lawyer, but one will be appointed for
                    you, if you wish, if and when you go to court. If you wish
                    to answer questions now without a lawyer present, you
                    have the right to stop answering questions at any time.
                    You also have the right to stop answering at any time
                    until you've talked to a lawyer.” 112


Defendant Eagan argued that the portion of the warning—“we have no

way of giving you a lawyer, but one will be appointed for you if and

when you go to court”—rendered the warnings inadequate because it

conveyed to that he was not entitled to a court-appointed attorney

during any interrogation.113

            The analysis in Duckworth again began with the observation

that Miranda does not require adherence to the “exact form” of the

language used in that opinion to describe the required warnings.114

The Court upheld the warnings because they “touched all the bases,”

and taken as a whole did not suggest a limitation on the right to

appointed counsel. 115 It noted that the defendant was told he had the

“right to talk to a lawyer” both “before we ask you any questions” and

112
      Id. at 199.
113
      Id.
114
      Id. at 202.
115
      Id. at 203.

                                               53
“during questioning.” 116      In the sentence immediately following, the

defendant was told he had a right to the advice and presence of a

lawyer even if he could not afford one.117 Taken together, these two

sentences reasonably conveyed that the defendant was entitled to a

lawyer before and during questioning even if he could not afford

one. 118

           The Supreme Court rejected the notion that the “if and when you

go to court” language negated those warnings by suggesting a

limitation on the defendant’s right to court-appointed counsel.119

Rather, “[w]e think it must be relatively commonplace for a suspect,

after receiving Miranda warnings, to ask when he will obtain counsel.

The ‘if and when you go to court’ advice simply anticipates that

question.”120

           Insofar as the present case is concerned, the key to Duckworth is

that the defendant was explicitly told he had the “right to the advice

and presence of a lawyer even if you cannot afford to hire one.” That

never occurred here. Wright was only told he would have an attorney




116
      Id. at 198.
117
      Id.
118
      Id.
119
      Id. at 204.
120
      Id.

                                        54
appointed for him only if the State felt he needed one; he was never

told he had an unconditional right to appointed counsel.


                                                  Florida v. Powell 121

          The State told both this Court and the Supreme Court that

“Powell’s relevance to Wright’s case can hardly be overstated.”122 In

Powell the police read the defendant his Miranda rights from a card

and the defendant also signed a waiver form acknowledging he had

received those rights and was willing to waive them. 123 The warnings

given to Powell were far more understandable than those given to

Wright. The defendant in Powell was advised:

                   You have the right to remain silent. If you give up the
                   right to remain silent, anything you say can be used
                   against you in court. You have the right to talk to a
                   lawyer before answering any of our questions. If you
                   cannot afford to hire a lawyer, one will be appointed for
                   you without cost and before any questioning. You have
                   the right to use any of these rights at any time you want
                   during this interview. 124


He contended that the warning “you have the right to talk to an

attorney before answering any our questions” conveyed that he had




121
      559 U.S. 50 (2010).
122
      Supreme Court Docket in No. 10, 212; D.I. 34 at 28.
123
      559 U.S. at 53-54.
124
      Id. at 54.

                                                            55
the right to speak to an attorney before questioning began but not

during the questioning itself. 125

          The Powell Court’s analysis began with the now-familiar adage

that when determining the adequacy of the warnings given to a

defendant courts should not parse the warnings as if they were

“construing a will or defining the terms of an easement.” 126 Rather,

the “inquiry is simply whether the warnings reasonably convey to a

suspect his rights as required by Miranda.” 127                             Of particular

importance to Wright’s claim, the Powell court repeated that a key

element in this inquiry was whether the warnings suggested any

limitation on the Miranda rights:

                    Our decisions in Prysock and Duckworth inform our
                    judgment here. Both concerned a suspect's entitlement
                    to adequate notification of the right to appointed counsel.
                    In Prysock, an officer informed the suspect of, inter alia,
                    his right to a lawyer's presence during questioning and
                    his right to counsel appointed at no cost. The Court of
                    Appeals held the advice inadequate to comply with
                    Miranda because it lacked an express statement that the
                    appointment of an attorney would occur prior to the
                    impending interrogation. We reversed. “[N]othing in the
                    warnings,” we observed, “suggested any limitation on the
                    right to the presence of appointed counsel different from
                    the clearly conveyed rights to a lawyer in general,
                    including the right to a lawyer before [the suspect is]
                    questioned, ... while [he is] being questioned, and all
                    during the questioning.” 128


125
      Id.
126
      Id. at 60 (quoting Duckworth, 492 U.S. at 203).
127
      Id. at 59 (internal alterations, citations and quotations omitted).
128
      Id (emphasis added) (internal citations omitted).

                                                               56
         The Powell court upheld the warnings given there because they

would reasonably be understood to mean that the defendant had a

right to counsel during questioning. 129                                        To reach the opposite

conclusion—that the suspect had a right to consult with counsel

before, but not during, questioning—would require the suspect to first

“come to the counterintuitive conclusion that he is obligated, or

allowed, to hop in and out of the holding area to seek his attorney's

advice [during the questioning]. Instead, the suspect would likely

assume that he must stay put in the interrogation room and that his

lawyer would be there with him the entire time.” 130

         A synthesis131 of these three opinion yields, at a minimum, the

following principles:

                       1. The police are not required to recite the Warnings
                          verbatim as they appear in Miranda.

                       2. The police must “touch all the bases” of Miranda and
                          explain them in understandable terms.

                       3. The police cannot suggest any limitation or
                          precondition on any of the rights described in the
                          Miranda warnings.

129
     Id. at 62.
130
    Id. at 62-63.
131
     This synthesis is similar to the standard for judging the adequacy of jury instructions: “The test is whether the jury
instruction correctly states the law and is not so confusing or inaccurate as to undermine the jury's ability to reach a
verdict. A trial court's jury instruction is not a ground for reversal if it is reasonably informative and not misleading,
judged by common practices and standards of verbal communication.” Perkins v. State, 920 A.2d 391, 398 (Del. 2007).
The warning given here would not meet this standard because the warning was inaccurate—it told Wright he could only
have a court-appointed attorney if the state felt he needed one.

                                                            57
The most important for present purposes is the principle—which

comes from Prysock and is reiterated in Powell—that the police

cannot suggest any limitations or preconditions on the rights

described in Miranda. The importance of this principle is emphasized

in an opinion upon which the State itself relies—the Third Circuit’s

decision in United States v. Warren: 132

                   Rather, as the Powell decision underscores in quoting
                   Prysock, attention must be focused upon whether
                   anything in the warning suggested any limitation on the
                   right to the presence of appointed counsel different from
                   the clearly conveyed rights to a lawyer in general,
                   including the right to a lawyer before the suspect is
                   questioned, while he is being questioned, and all during
                   the questioning. 133

Other federal courts of appeal have drawn the same conclusion. The

Eleventh Circuit, for instance, has opined that “Prysock thus stands

for the proposition that a Miranda warning is adequate if it fully

informs the accused of his right to consult with an attorney prior to

questioning and does not condition the right to appointed counsel on

some future event.” 134

          In short, the Court must examine the warnings to determine if

they explain all four of the so-called Miranda rights and do not

suggest any limitation on any of those rights.

132
      642 F.3d 182 (3d Cir. 2011).
133
      Id. at 185 (internal alterations and quotations omitted).
134
      United States v. Contreras, 667 F.2d 976, 979 (11th Cir. 1982).

                                                            58
        C. Why the warning was defective.

        The warnings given by Detective Mayfield fail to satisfy Miranda

because they contain a limitation on Wright’s right to appointed

counsel.         As mentioned several times previously, the detective told

Wright “[c]an't afford to hire one, if the state feels that you're diligent

and needs one, they'll appoint one for you.”                                   The idea conveyed to

Wright that his right to appointed counsel was dependent upon the

State’s decision he “needs one” is wholly inconsistent with Miranda.

According to the Miranda Court, “[i]f the individual desires to exercise

his privilege, he has the right to do so. This is not for the authorities

to decide.”135

        This case is little different than the one before the Maryland

Supreme Court in State v. Luckett:

                 [N]o police officer advising a suspect of his rights under
                 Miranda should intimate, much less declare affirmatively,
                 a limitation upon the right to counsel. Detective Barba's
                 statements that the right to counsel applied only to
                 discussion of the specifics of “the case,” being wrong as a
                 matter of law, rendered the advisements constitutionally
                 infirm. The constitutional infirmity of the warnings
                 rendered similarly infirm Respondent's subsequent
                 waiver of his rights, because his purported waiver was
                 not made with a full awareness of both the nature of the
                 right being abandoned and the consequences of the
                 decision to abandon it. 136

135
    Miranda, 384 U.S. at 480.
136
    993 A.2d 25, 28 (Md. 2010) (internal footnote and quotation marks omitted); see also Commonwealth v. Seng, 766
N.E.2d 492, 545 (Mass. 2002) (Warning that “ if you don't have money for a lawyer, they can help find one for you,”
was defective.).

                                                        59
 In the instant case the detective “declare[d] affirmatively a limitation

on the right to counsel”—he told Wright he could have court

appointed counsel only if the State feels he needed one.

          Another case illustrating the error of telling the defendant his

entitlement to a court-appointed lawyer was dependent upon the

State’s approval is the Ninth Circuit’s decision in United States v.

Connell. 137 In that case warnings to the defendant that “a lawyer may

be appointed to represent you” and if the defendant wanted a lawyer

but could not afford one “arrangements will be made for me to obtain

a lawyer in accordance with the law” were held to be defective because

the police also told the defendant that “you must make your own

arrangements to obtain a lawyer and this will be at no expense to the

government.” 138               Of particular significance in Connell was that the

language “the government may appoint one for you” suggested that

the       defendant’s            right   to   counsel   was   dependent   upon   the

government’s approval. The court reasoned:

                   Application of the above principles to the facts of
                   Connell's case compels the conclusion that the warnings
                   at issue fell below minimum required standards. Like the
                   warnings issued in Garcia and Twomey, the warnings
                   Connell received were equivocal and open to

137
      869 F.2d 1349 (9th Cir. 1989)
138
      Id. at 1350-51, 1353.

                                                 60
                     misinterpretation. Although told that he had the right to
                     talk to an attorney before, during, and after questioning,
                     this statement was immediately followed by a strong
                     assertion that such an attorney could not be obtained at
                     the Government's expense. The subsequent statements
                     regarding appointed counsel in both the oral and written
                     warnings—that “a lawyer may be appointed to represent
                     you” (oral) and that if I want but cannot afford a lawyer
                     “arrangements will be made for me to obtain a lawyer in
                     accordance with the law ” (written)—did not clearly
                     inform Connell that if he could not afford an attorney one
                     would be appointed for him prior to questioning, if he so
                     desired. The oral warning, using the word “may”, leaves
                     the impression that providing an attorney, if Connell could
                     not afford one, was discretionary with the government,
                     particularly in light of the previous strong statement that
                     “you must make your own arrangements to obtain a
                     lawyer and this will be at no expense to the
                     government. 139



The Court of Appeals invalidated the warnings because they left “the

impression providing an attorney if Connell could not afford one was

discretionary with the government.” 140 The same is true of a warning

which told Wright he was entitled to court-appointed counsel “if the

State feels . . . [you] need[] one.”

          D. The State’s other arguments.

          The State raises several arguments, none of which require a

different result. It should be recalled that the State was responding to

a three-pronged motion to suppress—(1) the Miranda warnings were

inadequate; (2) Wright’s waiver of his Miranda rights was not

139
      Id. at 1353.
140
      Id.

                                                 61
voluntary; and (3) Wright’s confession was not voluntary. It may well

be that certain of the State’s arguments in its response were not

addressed to the first prong, but rather to one of the latter two.

Nonetheless the Court will separately consider them.

                   1. Simply advising Wright he had a right to counsel is
                   not sufficient.

          In its brief in its 2012 appeal to the Delaware Supreme Court,141

and again here, the State urges that Detective Mayfield told Wright he

had a right to counsel. The State stressed that Detective Mayfield told

Wright that “[y]ou have the right, right now, at any time, to have an

attorney present with you.” This is fine as far as it goes, but it falls

short because it does not tell Wright that he has a right to a court-

appointed attorney if he cannot afford one. According to the Miranda

court the right to have an attorney present and the right to a court-

appointed attorney are distinct and both must be covered:

                   In order fully to apprise a person interrogated of the
                   extent of his rights under this system then, it is
                   necessary to warn him not only that he has the right to
                   consult with an attorney, but also that if he is indigent a
                   lawyer will be appointed to represent him. Without this
                   additional warning, the admonition of the right to consult
                   with counsel would often be understood as meaning only
                   that he can consult with a lawyer if he has one or has the
                   funds to obtain one. The warning of a right to counsel
                   would be hollow if not couched in terms that would
                   convey to the indigent—the person most often subjected

141
      Supreme Court Docket in No. 10, 2012: D.I. 34.

                                                       62
                   to interrogation—the knowledge that he too has a right to
                   have counsel present. As with the warnings of the right
                   to remain silent and of the general right to counsel, only
                   by effective and express explanation to the indigent of
                   this right can there be assurance that he was truly in a
                   position to exercise it. 142

The Supreme Court has stated that “the four warnings Miranda

requires are invariable.”143 Advice to a suspect that he has “the right,

right now, at any time to have an attorney present with you” is

therefore no substitute for the invariable requirement that the suspect

be advised he is entitled to free counsel if he is indigent.

          While on the subject of the four “invariable” Miranda warnings,

the Court will distinguish some dictum from the Delaware Supreme

Court which neither side has mentioned.                                       The Court is not in the

habit of setting up straw men and knocking them down, but in this

instance it will mention the Delaware Supreme Court’s opinion

Crawford v. State, 144 even though the State has not relied upon it. In

Crawford our Supreme Court was confronted with a claim that a

suspect had invoked his right to counsel and therefore his statement

should have been suppressed—an issue not present here. During the

course of its analysis the court referred to the United State’s Supreme



142
      Miranda, 384 U.S. at 480 (emphasis added).
143
      E.g., J.D.B. v. North Carolina , ___U.S.___, 131 S.Ct. 2394, 2401 (2011).
144
      580 A.2d 571 (Del. 1990).

                                                           63
Court’s decision in Michigan v. Tucker145 and suggested in a

parenthetical expression following a citation that Tucker stands for

the proposition that a “failure of interrogating officers to advise

suspect of right to appointed counsel did not invalidate an otherwise

voluntary statement.”146 Specifically the Crawford court wrote:

                  Although it has not specifically addressed the question of
                  an ambiguous invocation of the right to counsel, the
                  Supreme Court has considered related issues on several
                  occasions. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct.
                  2357, 41 L.Ed.2d 182 (1974) (since the procedural rules
                  of Miranda were not themselves rights protected by the
                  constitution, strict adherence to the form suggested in
                  Miranda was not constitutionally required, thus failure of
                  interrogating officers to advise suspect of right to
                  appointed counsel did not invalidate an otherwise
                  voluntary statement). 147

Because it was unnecessary to the Crawford Court’s holding, its

interpretation of Michigan v. Tucker is dictum and is not binding upon

this Court. It is therefore permissible for this Court to say that it has

a different view of the holding in Tucker. The issue before the United

States Supreme Court in Tucker was whether a statement taken in

violation of Miranda could be used to impeach the defendant if he

testified. The officer in that case failed to advise the defendant of his

right to appointed counsel, and the lower courts held that this


145
      417 U.S. 433 (1974).
146
      Crawford, 580 A.2d at 574.
147
      Id.

                                             64
omission required suppression of his statement. 148 That holding was

never disturbed by the Supreme Court. 149 To the contrary the high

court observed that Miranda had been satisfied because Tucker’s

statement was excluded during the prosecution’s case in chief:

                   Our determination that the interrogation in this case
                   involved no compulsion sufficient to breach the right
                   against compulsory self-incrimination does not mean
                   there was not a disregard, albeit an inadvertent
                   disregard, of the procedural rules later established in
                   Miranda. The question for decision is how sweeping the
                   judicially imposed consequences of this disregard shall
                   be. This Court said in Miranda that statements taken in
                   violation of the Miranda principles must not be used to
                   prove the prosecution's case at trial. That requirement
                   was fully complied with by the state court here. 150



Tucker therefore does not support the notion that an interrogating

officer may omit the required advice about the right to a free attorney

so long as the officer simply tells the suspect he has a right to

counsel. To the contrary, Tucker reinforces the essential nature of the

advice about a court-appointed attorney, and that the omission of

such advice requires exclusion during the prosecution’s case-in-chief.

                   2. Duckworth v. Eagan is distinct

          The State directs this Court’s attention to the United State’s

Supreme Court’s holding in Duckworth v. Eagan. That case is readily

148
      417 U.S. at 437-38.
149
      Id. at 445.
150
      Id.

                                             65
distinguished from the present matter. As discussed previously, the

Duckworth Court upheld a warning in which the suspect was told that

a lawyer would be appointed for him “if and when you go to court.”

The Supreme Court based its holding on the fact that the suspect was

also told that he had a right to counsel before and during questioning

and, in the immediately following sentence, that one would be

appointed for him if he could not afford one. 151 In this case the

detective never told Wright that he had the unconditional right to

appointed counsel; instead he was only told that a lawyer would be

appointed for him if the State felt he needed one.                                           Thus this case,

unlike Duckworth, lacks a catchall phrase that would have apprised

Wright of his right.

                      3. Adequate Miranda warnings are not a mere
                      “component part”

                The State also suggests that the Court should ignore the

      defective Miranda warnings if it finds that Wright’s confession was

      voluntary.152 In its opposition to the motion to suppress it argues:

151
     The warning given in Duckworth was:
         You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you
         during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire
         one. 492 U.S. at 198.
152
     The State uses the terms “voluntary waiver of Miranda rights” and “voluntary confession” interchangeably. They
are, however, distinct concepts. The State begins its argument with the assertion“[i]t is the voluntariness of a
confession. . .that courts must employee when reviewing a defendant’s confession,” which is immediately followed by
a discussion that “[t]he Delaware Supreme Court has adopted a two-part test to determine whether a waiver of Miranda
is voluntary.”

                                                           66
                  As the United States Supreme Court has repeatedly held,
                  Miranda warnings are prophylactic, and Miranda did not
                  create a substantive right. It is the voluntariness of a
                  confession, with the provision of Miranda warnings
                  functioning as an important component in the totality of
                  circumstances analysis that courts must employee when
                  reviewing a defendant’s confession.       The Delaware
                  Supreme Court has developed a two-part test to
                  determine whether a waiver of Miranda is voluntary . . . .

This argument is contradicted by the United States Supreme Court,

which on numerous occasions has held that effective Miranda

warnings are an absolute prerequisite to admission of a confession.

While it is true that the Miranda warnings given a suspect in a

custodial interrogation are part of the mix to be considered when

determining whether the waiver of those rights is voluntary, it would

be a mistake to relegate them to a mere “component in the totality of

circumstances” to be considered in making that determination.

Rather, adequate warnings are essential, and without them any

ensuing statement is inadmissible as a matter of law during the

prosecution’s             case-in-chief.                  They        are      “prerequisites              to      the

admissibility of any statement made by a defendant.” 153 “The central

principle established by [Miranda],” according to the Supreme Court,

is “if the police take a suspect into custody and then ask him

questions without informing him of the rights enumerated above, his

153
   Miranda, 384 U.S. at 476; Schneckloth, 412 U.S. at 232 (“[I]n Miranda . . ., we found that the Constitution required
certain now familiar warnings as a prerequisite to police interrogation.”).

                                                          67
responses cannot be introduced into evidence to establish his

guilt.” 154 Put another way, Miranda’s “core ruling [is] that unwarned

statements may not be used as evidence in the prosecution's case in

chief.” 155

                      4. Wright’s previous experience with Miranda
                         warnings is irrelevant

        The State points out that Wright has had previous experience

with Miranda warnings. That experience, whatever it might be, does

not lessen the obligation of the police to give adequate Miranda

warnings:

                 Whether a suspect in custody is mature or young, a
                 Ph.D. or a high school drop-out, a repeat offender
                 familiar with the criminal justice system or an individual
                 with a previously clean record does not vary the fact that
                 sufficient Miranda warnings must be given. 156

                      5. The jury’s verdict does not validate the warnings
                         given

        The State refers to the jury verdicts in Wright’s first trial (in the

guilt and penalty phases) and its verdict after Wright’s second penalty

hearing. The adequacy of the Miranda warnings is a question of law

for the court, not a question of fact for the jury. 157

154
    Berkemer v. McCarty, 468 U.S. 420, 429 (1984).
155
    Dickerson v. United States, 530 U.S. 428, 443–44 (2000).
156
    Rush v. State, 939 A.2d 689, 703 (Md. 2008).
157
    Connell, 869 F.2d at 1351 (“Whether Connell was given adequate Miranda warnings is a question of law.”); United
States v. Caldwell, 954 F.2d 496, 501 (8th Cir. 1992); United States v. Campbell, 2008 WL 202555, at *2 (S.D. Fl. Jan.
23, 2008); Commonwealth v. Edwards, 830 N.E.2d 158, 165 (Mass. 2005).

                                                         68
          E. Suppression is required

          Every day that a police officer leaves for work the officer does so

uncertain that he or she will return home at the end of the shift. At

any moment a police officer can face an unexpected, split-second

decision in which a life can hang in the balance. In the words of the

United States Supreme Court, “police officers are often forced to make

split-second judgments—in circumstances that are tense, uncertain,

and rapidly evolving.” 158                  Indeed, there are emergency situations in

which the Miranda warnings need not be given before custodial

questioning:

                  [T]he need for answers to questions in a situation posing
                  a threat to the public safety outweighs the need for the
                  prophylactic rule protecting the Fifth Amendment's
                  privilege against self-incrimination. We decline to place
                  officers . . . in the untenable position of having to
                  consider, often in a matter of seconds, whether it best
                  serves society for them to ask the necessary questions
                  without the Miranda warnings and render whatever
                  probative evidence they uncover inadmissible, or for
                  them to give the warnings in order to preserve the
                  admissibility of evidence. 159

This, however, was not such a situation.                     Wright was in a tightly

controlled situation, and the police were not faced with any on-going

emergency at the time he was interrogated.



158
      Graham v. Connor, 490 U.S. 386, 396-97 (1989).
159
      New York v. Quarles, 467 U.S. 649, 656 (1984).

                                                       69
          Courts do not “expect police officers to read United States Reports

in their spare time, to study arcane constitutional law treatises, or to

analyze            constitutional            developments      with   a     law     professor's

precision,”160 but as discussed previously, the strictures of Miranda

were familiar by the time Wright was questioned and police in

Delaware, as elsewhere, had developed adequate procedures designed

to insure compliance with them. Nonetheless, Wright did not receive

warnings which even arguably satisfied Miranda. “The Miranda rule is

not a code of police conduct,” 161 but rather is a prophylactic rule

designed to protect core constitutional rights.                           There is only one

remedy here—Wright’s confession must be suppressed and the State

cannot use that confession during its case-in-chief.                              The Miranda

Court itself made it clear that the “warnings required and the waiver

necessary in accordance with our opinion today are, in the absence of

a fully effective equivalent, prerequisites to the admissibility of any

statement made by a defendant.” 162 There is simply no reason here to

allow the admission of a statement obtained in violation of Miranda.

Therefore the court has no choice but to suppress Wright’s statement.



160
      Ganwich v. Knapp, 319 F.3d 1115, 1125 (9th Cir. 2003).
161
      United States v. Patane, 542 U.S. 630, 636 (2004).
162
      Miranda, 384 U.S. at 476.

                                                         70
      Wherefore, Defendant’s motion to suppress is GRANTED.



Date:     February 2, 2015           _______________________________
                                          John A. Parkins, Jr.
                                          Superior Court Judge



oc:   Prothonotary




                                71
