           IN THE SUPREME COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                    §
                                      §     No. 64, 2015
      Plaintiff-Below,                §
      Appellant,                      §     Court Below: Superior Court
                                      §     of the State of Delaware
      v.                              §
                                      §
JERMAINE WRIGHT,                      §
                                      §     ID No. 91004136
      Defendant-Below,                §
      Appellee.                       §

                          Submitted: October 28, 2015
                           Decided: January 11, 2016

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


Upon appeal from the Superior Court. REVERSED AND REMANDED.


Elizabeth R. McFarlan, Esquire (argued), Chief of Appeals, Maria T. Knoll, Esquire,
Deputy Attorney General, Department of Justice, Wilmington, Delaware, for
Appellant.


Eugene J. Maurer, Jr., Esquire, Allison S. Mielke, Esquire (argued), Wilmington,
Delaware, for Appellee.




VAUGHN, Justice:
       In 1992 Jermaine Wright was convicted of Murder in the First Degree, Robbery

in the First Degree, and related weapons offenses for his involvement in what was

known as the Hi-Way Inn murder/robbery. The Superior Court imposed the death

penalty for his conviction of Murder in the First Degree. Prior to trial, Wright moved

to suppress a statement he had given to police. He alleged that his waiver of Miranda

rights was invalid and his statement was involuntary because he was high on heroin

at the time. On October 9, 1991, the Superior Court, after a hearing, found that

Wright “had sufficient capacity to know what he was saying and to have voluntarily

intended to say it.”1 The Superior Court further found that Wright had been given the

Miranda rights three times, by three different police officers, and that the State had

“met its burden of proof by a preponderance of the evidence that the Defendant’s

waiver of his Miranda rights was voluntary, knowing and intelligent, and that his

confession was voluntarily made.”2 Wright then filed a second pretrial motion to

suppress his confession on other grounds. In its opinion denying that motion, dated

August 6, 1992, the Superior Court again found that Wright had been given his

Miranda rights three times.3 The confession was admitted into evidence at trial.




1
  State v. Wright, 1991 WL 11766247, at *7-8 (Del. Super. Oct. 30, 1991) (quoting Howard v. State,
458 A.2d 1180, 1183 (Del. 1983)) (internal quotation marks omitted).
2
  Id. at *9.
3
  State v. Wright, 1992 WL 207255, at *3 (Del. Super. Aug. 6, 1992).

                                                2
       On direct appeal, Wright’s convictions and sentences were affirmed.4 Between

then and 2009, Wright filed four motions for postconviction relief. In the second

postconviction proceeding, the Superior Court again rejected Wright’s contention that

his waiver of Miranda rights was not valid.5 In 2014, in the fourth postconviction

proceeding, this Court reversed Wright’s convictions on the ground that the State

violated his rights under Brady v. Maryland.6 The case was remanded to the Superior

Court for a new trial.7

       By the time the fourth motion for postconviction relief was filed, the original

trial judge had retired and the case had been assigned to her successor. In the new

trial proceedings, the successor judge granted a motion to suppress Wright’s

confession on the ground that the Miranda rights he was given were inadequate, and

that his waiver was, therefore, not valid.8 This ruling is now before us on appeal by

the State under 10 Del. C. § 9902(b).9

       For the reasons which follow, we have concluded that the original Superior

Court judge’s determination that Wright’s waiver of his Miranda rights was voluntary,


4
  Wright v. State, 633 A.2d 329, 330-31 (Del. 1993).
5
  State v. Wright, 1998 WL 734771, at *5-6 (Del. Super. Sept. 28, 1998).
6
  373 U.S. 83, 83 (1963).
7
  Wright v. State, 91 A.3d 972, 977 (Del. 2014).
8
  State v. Wright, 2015 WL 475847, at *19-29 (Del. Super. Feb. 2, 2015).
9
  10 Del. C. § 9902(b) (“When any order is entered before trial in any court suppressing or excluding
substantial and material evidence, the court, upon certification by the Attorney General that the
evidence is essential to the prosecution of the case, shall dismiss the . . . indictment . . . .”).

                                                 3
knowing, and intelligent necessarily included an implied determination that the

warnings were adequately given. Those determinations are the law of the case. For

this reason, the successor judge erred in reviewing the admissibility of Wright’s

confession.

          The State also appeals the successor judge’s denial of a motion that he recuse

himself.10 At oral argument, the State candidly conceded that this Court does not have

jurisdiction under 10 Del. C. § 9902 to review that order. Therefore, we do not

address the Superior Court’s ruling on recusal or express any opinion on recusal. At

the conclusion of this opinion, however, we do address reassignment of the case.

                       I. FACTS AND PROCEDURAL HISTORY

          The facts as they appear in this Court’s 1993 opinion on direct appeal, with

footnotes omitted, are as follows:

                    The essential facts underlying Wright’s conviction are not
             in serious dispute. On the evening of January 14, 1991, Debra
             Milner was working at the bar of the Hi-Way Inn, a combination
             bar and liquor store located on Governor Printz Boulevard near
             Wilmington. Philip Seifert was working in the adjacent liquor
             store. At around 9:20 p.m., Milner observed a black man in his
             mid-twenties enter the bar, look around, and leave without making
             a purchase. At about 10:20 p.m., the liquor store door bell rang,
             indicating that someone had entered. Seifert went to wait on the
             customer while Milner answered the telephone.
                    While she was on the telephone, Milner heard the bell ring
             again and assumed that the customer had left the liquor store. She

10
     State v. Wright, 2014 WL 7465795, at *1 (Del. Super. Dec. 16, 2014).

                                                 4
then heard the bell ring a third time followed by a noise that she
thought sounded like a firecracker. Assuming someone was
playing a prank, Milner walked toward the passageway to the
liquor store to investigate. Through the passageway, she saw
Seifert slumped across the counter. She could not see the
customer area of the liquor store from her vantage point. She then
heard a gunshot and upon a closer view saw blood around Seifert.
Fearing for her safety, Milner ran and hid in a room near the
kitchen. Later, she ran back through the bar and out its front door
where she saw a customer she recognized, George Hummell,
making a telephone call.
       Hummell, a machinist inspector employed by Amtrak, was
on his way to work and intended to stop at the Hi-Way Inn to cash
a check. He was a regular customer and knew both Milner and
Seifert. As he was waiting to make a left turn into the parking lot,
he saw two men leave the liquor store. Hummell observed one of
the men, the shorter of the two, return to the store while the other
ran across the parking lot. After a short interval, the man who had
re-entered the liquor store came back outside, ran across the road
and entered a black Volkswagen in a parking lot across the street.
The other man ran down the sidewalk and disappeared into the
night. According to Hummell, the man who returned to the store
and then left again was black, about 5' 8" tall, while the other man
was also black and about 6' tall.
       Suspicious of what he had observed, Hummell walked into
the bar area, which was empty. He called out the names of several
employees of the Hi-Way Inn, but there was no response.
Hummell walked out of the bar and into the liquor store. He then
saw Seifert with his head on the counter and bleeding from a head
wound. Hummell immediately walked to the vestibule and dialed
911.
       Sergeant Gary Kresge, the first police officer to arrive at the
scene, saw Seifert lying on his back on the floor behind the
counter. The cash register drawer was open and approximately
$30 had been stolen. Later Seifert was pronounced dead as a
result of gunshot wounds. He had been shot three times, once in
the neck and twice in the head.


                                  5
        Detective Edward Mayfield of the Delaware State Police
was assigned to investigate Seifert’s murder and robbery.
Through an employee of the Hi-Way Inn, which had offered a
reward for information leading to an arrest for the crimes,
Mayfield received a tip that the perpetrators were “Marlo,” an
alleged drug dealer who lived on East 28th Street in Wilmington,
and another man, “Tee.” With the help of Wilmington police,
Mayfield learned that “Marlo” was Jermaine Marlo Wright, while
“Tee” was the “street name” of Lorinzo Dixon. On the basis of
this tip and Hummell’s description of the men he saw leaving the
scene, Wright was developed as a suspect in the Hi-Way Inn
murder/robbery. However, police did not have probable cause to
arrest him for those crimes at that time.
        In addition to the Hi-Way Inn murder/robbery, Wright was
a suspect in two random shootings under investigation by
Wilmington police. One shooting, being investigated by
Detective Robert Merrill, involved a young boy, Emil Watson,
who had been shot in the foot while riding his bicycle. The other,
being investigated by Detective Robert Moser, involved the
shooting of a young girl in a nearby park. Merrill obtained a
warrant to arrest Wright for the Watson shooting and a warrant to
search Wright’s residence for guns and ammunition.
        On January 30, 1991, at approximately 6:00 a.m., the
warrants were executed. Because of a belief that Wright was
heavily armed, a SWAT team entered and secured the premises
and its occupants. Detectives Mayfield, Merrill, and Moser were
among those executing the warrants. Wright was arrested for
assault and transported to the Wilmington Police Department
between 8:00 and 9:00 a.m. He was then processed while the
detectives were involved in a number of activities including a
SWAT team debriefing, securing evidence that had been seized,
interviewing another person who had been arrested at the Wright
residence, and attending strategy sessions.
        At approximately 12:00 p.m., Wright was first interviewed.
After reading Wright the Miranda warnings, Detective Merrill
questioned him for about 45 minutes regarding the Emil Watson
shooting. Detective Moser then entered the room to interview
Wright about the park shooting. After again receiving his

                                6
              Miranda warnings, Wright talked with Moser about that shooting
              for about 45 minutes. The interview then turned to other subjects,
              with Wright volunteering information regarding other criminal
              activity about which he had knowledge. Except for a few short
              breaks, during which Wright was provided with sodas, a
              sandwich, and opportunities to use the restroom, Moser was alone
              with Wright from the time the interview started until
              approximately 7:30 p.m. Detective Mayfield was listening to the
              conversation in an adjoining room through a speaker system and
              conferred with Moser during breaks in the questioning.
                     Most of this six hour discussion focussed on the Hi-Way
              Inn murder/robbery. Eventually, Wright implicated himself in the
              crimes. At that point, about 7:00 p.m., Mayfield came to the
              interview room and told Wright he wanted to take a videotaped
              statement from him concerning what he had told Moser. Mayfield
              conducted the videotaped interview from 7:35 to 8:20 p.m., at the
              beginning of which Wright was again given Miranda warnings.
                     In his statement to police, Wright claimed that on the night
              of the murder Dixon came to him and told him he knew of a place
              where someone was working alone. They drove to the Hi-Way
              Inn in a stolen black Volkswagen Jetta. Seifert refused to
              cooperate when they demanded money, and Dixon told Wright to
              shoot Seifert or he (Dixon) would kill Wright. Wright then shot
              Seifert once in the back of the head and then fled. Following his
              videotaped statement, Wright was arrested for the Hi-Way Inn
              killing and taken to Municipal Court where bail was set on the
              assault charge and then to Justice of the Peace Court No. 11 for
              presentment on the Hi-Way Inn charges.11

          At the first pretrial suppression hearing, Detective Merrill testified that he began

Wright’s interrogation by reciting the Miranda rights. He testified he informed

Wright:




11
     Wright v. State, 633 A.2d 329, 331-32 (Del. 1993) (footnotes omitted).

                                                  7
             He had the right to remain silent. Anything he said can and would
             be used against him in a court of law. He had the right to an
             attorney. If he couldn’t afford the attorney, the State would
             supply an attorney for him. He also had the right to stop
             answering questions at anytime during the interview.12

Detective Merrill’s interrogation was not recorded.

          Detective Moser of the Wilmington Police Department testified that he began

his interrogation by reading the Miranda rights from a card. Specifically, he said he

advised Wright:

             He had the right to remain silent. Anything he said could and
             would be used against him in a court of law. He had a right to
             have an attorney present at any time during questioning. If he
             could not afford one, the State would provide one for him. If he
             wished to stop at any time, he could do so. And then I asked him
             if he understood each and every one of his rights and he stated that
             he did. I asked him if he wanted to make a statement, and he
             did.13

As mentioned, Wright eventually confessed to shooting Philip Seifert. He agreed to

give an audio/videotaped statement describing his involvement in the Hi-Way Inn

murder/robbery. Moser’s interview with Wright was also not recorded.

          Detective Mayfield began the audio/videotaped interview with a recital of the

Miranda rights, which were not given with the same precision as those given by

Merrill and Moser. Mayfield stated the rights as follows:


12
     Appellant’s Op. Br. App. at A116.
13
     Id. at A118.

                                              8
              What I’ll first do is I’ll read your rights to you, okay? 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 need one, they’ll appoint one for you. You also have
              the right at any time while we’re talking not to answer. Okay?
              And at the same time, during the interview here, I will advise you,
              I am a, ah, member of the Delaware State Police. And I am
              investigating the Highway Inn, the robbery/homicide there.
              Okay? Do you understand what I have asked 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.14

Each time he was given the Miranda rights, Wright agreed to answer the officers’

questions.

          At trial, the following exchange occurred between defense counsel and

Detective Moser:

              Defense counsel:    Did you give Miranda warnings?
              Moser:              He had already been Mirandized.
              Defense counsel:    All right.
              Moser:              By the other detectives.
              Defense counsel:    Who Mirandized him?
              Moser:              I believe Detective Merrill and Detective
                                  Burke.15

The prosecutor objected to further questions concerning Miranda on relevance

grounds. At sidebar, the following exchange took place:

14
     Id. at A92.
15
     Id. at A151.

                                               9
             Defense Counsel: Well, your Honor, it may be significant. I
                              mean, we have gone through two suppression
                              hearings. I was certainly under the impression
                              that he be [sic] Mirandized each time. . . . I
                              just want to ask him if he gave him Miranda
                              Warnings. I’m not going to pursue it further.
             The Court:       You have asked him, he’s answered, and so I
                              would suggest that there’s no appropriate
                              further questioning.
             Defense Counsel: Can I re-emphasize that he did not give him
                              his warnings?
             The Court:       No.16

Because the questioning on Miranda rights was cut off, Detective Moser was not

afforded an opportunity to reconcile his trial testimony with his suppression hearing

testimony or explain any apparent difference. At no point did Detective Moser deny

that he had given the warnings.

          In his direct appeal following his convictions, Wright challenged the admission

of his statement on the ground that it was obtained following an unreasonable delay

between arrest and initial presentment, but did not raise any Miranda issues.17

          Wright’s first motion for postconviction relief resulted in the Superior Court

ordering a new penalty hearing. After that hearing, Wright was again sentenced to

death. On direct appeal, the judgment imposing the death penalty was affirmed. The

Miranda rights were not an issue in Wright’s first motion for postconviction relief.


16
     Appellant’s Op. Br. App. at A152.
17
     Wright, 633 A.2d at 332-33.

                                             10
          Wright filed his second motion for postconviction relief in 1997. In that

proceeding, he again argued that his waiver of the Miranda rights was not valid

because he was intoxicated by heroin at the time.18 The original trial judge heard

Wright’s second motion for postconviction relief. In her 1991 pretrial suppression

ruling, the original trial judge had agreed that Wright was intoxicated on heroin at the

time of his confession, but nonetheless concluded that the confession was voluntary

and the waiver of Miranda rights was valid.19 In her opinion denying the second

motion for postconviction relief, issued after a hearing and listening to expert

testimony offered by Wright, her discussion of the Miranda issue included the

following:

                    At the suppression hearing, the Court specifically
             considered whether Wright had the capacity to know what he was
             saying. In so doing, the Court 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.” These other factors included his
             heroin intoxication at the time of his confession. The Court
             observed that, while appearing more relaxed and speaking more
             slowly at his interrogation than he did, for example, at the
             suppression hearing, Wright’s behavior was consistent and
             coherent throughout the interrogation in which he responded
             appropriately to the questions put to him. Testimony at the
             suppression hearing, moreover, disclosed that Wright had been
             arrested previously and that he was familiar with his Miranda
             right to remain silent. Wright testified that he understood his

18
     Wright, 1998 WL 734771, at *4.
19
     State v. Wright, 1991 WL 11766247, at *7-8 (Del. Super. Oct. 9, 1991).

                                                 11
           Miranda rights on the occasion of the interrogation. There is no
           evidence from the videotape of Wright’s confession that he did
           not understand what was asked of him or that he did not
           comprehend the substance of the questions asked, including the
           nature and importance of the Miranda rights, which had been
           posed three separate times during the interrogation, the last being
           given immediately before he made his videotaped statement.20

Although the original trial judge noted that “[t]he claims regarding waiver of Miranda

rights . . . were previously adjudicated[,]”21 she also held that his Miranda argument

was “substantively without merit because the waiver of his Miranda rights was

knowing and intelligent.”22 The original trial judge also found that there was no new

information that justified overturning the previous ruling on this issue.23 On appeal,

this Court affirmed the Superior Court’s judgment.24

       In 2009, Wright filed his fourth motion for postconviction relief. In that

proceeding, the successor judge sua sponte called into question whether Wright had

been given adequate Miranda rights.25 The successor judge held an evidentiary

hearing concerning the adequacy of the Miranda rights and Wright’s ability to

knowingly and voluntarily waive his rights.26 At the hearing, Detectives Merrill,



20
   Wright, 1998 WL 734771, at *5 (footnote omitted).
21
   Id. at *4.
22
   Id. at *6.
23
   Id.
24
   Wright, 2000 WL 139974, at *1.
25
   State v. Wright, 2012 WL 1400932, at *19 (Del. Super. Jan. 3, 2012).
26
   Id. at *12.

                                               12
Moser, and Mayfield were called to testify. As one might expect after almost twenty

years, the detectives’ testimony was not identical to their previous accounts.27

       The Superior Court found that Detective Moser never advised Wright of his

Miranda rights.28 This finding was based on Detective Moser’s 1992 trial testimony

and testimony at the 2009 hearing that he thought he obtained a signed waiver. There

is no record of a written waiver. However, the finding is contrary to Moser’s

testimony at the 1991 suppression hearing and his testimony at the hearing in the

fourth postconviction proceeding that he did administer the Miranda rights.29

Detective Merrill, by then retired, when asked to recite the warnings at the 2009

hearing, mentioned the right to remain silent, that anything one says can and will be

used against him in a court of law, the right to an attorney, and the right to terminate

questioning, but omitted the right to appointed counsel.                The Superior Court

concluded that there was no record of the precise nature of the warnings Detective

Merrill gave to Wright, or whether the warnings complied with Miranda.

       In its opinion granting Wright’s fourth motion for postconviction relief, dated

January 3, 2012, the Superior Court found that the Miranda rights given by Detective


27
   For instance, Detective Moser, for the first time, testified that he obtained a signed Miranda
waiver from Wright. The Superior Court found that Detective Moser’s inconsistent testimony and
the waiver’s absence supported the finding that Detective Moser never read Miranda warnings to
Wright. Id. at *41.
28
   Id. at *41.
29
   Id.

                                               13
Mayfield at the beginning of the videotaped statement were inherently confusing and

did not adequately explain to Wright that he was entitled to have counsel appointed

for him. Specifically, the court stated:

                  [A]s the court first raised sua sponte, the Miranda warnings given
                  to Wright prior to his only recorded interrogation not only failed
                  to adequately convey to Defendant his right to counsel, but may
                  have misled him into believing he had a right to appointed counsel
                  only if the state felt he needed one. Because the warnings given
                  to Wright were so defective, his statement to the police should
                  have been excluded from evidence. [Next], the court finds that
                  Defendant did not knowingly and intelligently waive his Miranda
                  rights. Therefore, the resulting statement should have been
                  excluded from evidence.30

The Superior Court also found that the State violated Brady by not disclosing that an

attempted robbery had occurred at Brandywine Village Liquors, only a mile and a half

away from the Hi-Way Inn, approximately 30 to 40 minutes before the Hi-Way Inn

murder/robbery. The police determined that Wright was not involved in the attempted

robbery at Brandywine Village Liquors but failed to disclose this information to

Wright. As a result of these rulings, the Superior Court vacated Wright’s convictions.

The State appealed.

           This Court reversed the judgment of the Superior Court, holding that the

Superior Court erred in reviewing the admissibility of the statement and in finding that




30
     Id. at *5.

                                                 14
there was a Brady violation.31 With regard to the statement, the Court ruled that

reconsideration of its admissibility was barred by Superior Court Rule 61(i)(4).

Specifically, the Court stated as follows:

           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 Miranda 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 of Rule 61(i)(4). Reconsideration is not warranted
           in the interest of justice.32

The Court remanded the case to the Superior Court with instructions to reinstate

Wright’s convictions.33

       After the Superior Court reinstated Wright’s convictions, he appealed certain

claims which had been denied by the Superior Court in the fourth postconviction

proceeding. He argued that the State suppressed additional Brady material. This

evidence included impeachment evidence related to Gerald Samuels, a prison

informant who testified that Wright confessed to the murder, and exculpatory and
31
   State v. Wright, 67 A.3d 319, 321 (Del. 2013).
32
    Id. at 323-24 (quoting Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992)).
33
   Wright, 67 A.3d at 325.

                                                15
impeachment evidence related to Kevin Jamison, a witness that Wright contended

committed the murder.

       This Court concluded that the cumulative effect of multiple Brady violations

required reversal and remand for a new trial.34 This Court did not address any

Miranda issues in that decision, which is the most recent from this Court.

       After the case was remanded for a new trial, the Superior Court issued a letter

creating a pretrial agenda for the new trial. One of the items listed was whether

Wright could move to suppress his statement, and, if so, whether such a motion should

be granted.35 In turn, Wright filed a motion to suppress his confession arguing that the

Miranda rights the police gave him were inadequate.36 The State opposed Wright’s

motion and argued that the Superior Court was barred from considering this issue by

the law of the case doctrine.37

       In January 2015, the Superior Court granted Wright’s motion to suppress.38 In

doing so, the court held that the law of the case doctrine did not bar consideration of

the adequacy of the Miranda rights for two reasons: (1) the specific legal issue raised

was never definitively decided; and (2) “new” facts and inconsistencies were



34
   Wright v. State, 91 A.3d 972, 994 (Del. 2014).
35
   Appellant’s Op. Br. App. at A166-67.
36
   State v. Wright, 2015 WL 475847, at *1 (Del. Super. Feb. 2, 2015).
37
   Id.
38
   Id. at *29.

                                               16
developed through the detectives’ testimony, and these developments formed the basis

of an exception to the law of the case doctrine. This appeal followed.39

                                      II. DISCUSSION

               A. The Admissibility of Wright’s Confession is Controlled
                          by the Law of the Case Doctrine

       This Court reviews the Superior Court’s decision to grant or deny a motion to

suppress for abuse of discretion.40 An abuse of discretion occurs when the trial judge

“exceed[s] the bounds of reason in view of the circumstances and has so ignored

recognized rules of law or practice so as to produce injustice.”41 The formulation and

application of legal principles is reviewed de novo.42

       The State contends that the law of the case doctrine bars review of the adequacy

of the Miranda rights in the new trial proceedings. Wright contends that the Superior

Court is not barred by the law of the case doctrine because no court has evaluated or

ruled on the adequacy of the Miranda rights, that there are exceptions to the law of the

case doctrine which apply here, and that the Miranda rights given were inadequate.

He concedes that related issues were litigated, but argues that the law of the case


39
   See 10 Del. C. § 9902(c) (“The State shall have an absolute right of appeal to an appellate court
from an order entered pursuant to subsection (b) of this section and if the appellate court upon
review of the order suppressing evidence shall reverse the dismissal, the defendant may be subjected
to trial.”).
40
   Lopez-Vazquez v. State, 956 A.2d 1280, 1284 (Del. 2008).
41
   Charbonneau v. State, 904 A.2d 295, 304 (Del. 2006).
42
   Cede & Co. v. Technicolor, Inc., 884 A.2d 26, 36 (Del. 2005).

                                                17
doctrine does not apply because the adequacy of the warnings was never specifically

argued or decided.

       The law of the case doctrine is a self-imposed restriction that prohibits courts

from revisiting issues previously decided, with the intent to promote “efficiency,

finality, stability and respect for the judicial system.”43 “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.”44

The doctrine is not an absolute restriction, and it allows the Superior Court and this

Court to reexamine issues that are “clearly wrong, produce[] an injustice or should be

revisited because of changed circumstances.”45

       “The law of the case doctrine presumes a hearing on the merits”46 and “only

applies to issues the court actually decided.”47 Courts usually require the issue to have


43
   Cede & Co., 884 A.2d at 39; accord Ins. Corp. of Am. v. Barker, 628 A.2d 38, 41 (Del. 1993);
United States v. Arce-Jasso, 389 F.3d 124, 131 (5th Cir. 2004); United States v. Tamayo, 80 F.3d
1514, 1520 (11th Cir. 1996); Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949-50 (3d
Cir. 1985).
44
   Hoskins v. State, 102 A.3d 724, 729 (Del. 2014) (quoting Kenton v. Kenton, 571 A.2d 778, 784
(Del. 1990)); see also Nationwide Emerging Managers, LLC v. Northpointe Holdings, LLC, 112
A.3d 878, 894-95 (Del. 2015) (“Under the ‘law of the case doctrine,’ a court’s legal ruling at an
earlier stage of proceedings controls later stages of those proceedings, provided the facts underlying
the ruling do not change.”).
45
   Hoskins, 102 A.3d at 729 (quoting Gannett Co. v. Kanaga, 750 A.2d 1174, 1181 (Del. 2000)); see
also Hamilton v. State, 831 A.2d 881, 887 (Del. 2003) (“The law of the case doctrine does not
preclude this Court or the Superior Court from reexamining [] prior rulings . . . when the factual
premises of those [] rulings are demonstrated to have been mistaken.”).
46
   United States v. Hatter, 532 U.S. 557, 566 (2001).
47
   John B. v. Emkes, 710 F.3d 394, 403 (6th Cir. 2013).

                                                 18
been “fully briefed and squarely decided” in the prior proceedings.48 But “[t]he

decision of an issue need not be express to establish the law of the case.”49 Issues

decided implicitly, “or by necessary inference from the disposition” satisfy the actual

decision requirement.50 Thus a trial court, on remand, is not free to decide issues that

have been “expressly or implicitly disposed of [by the appellate court].”51

       It is also established that a trial court’s previous decision in a case will form the

law of the case for the issue decided.52 In Nationwide Emerging Managers, LLC v.

Northpointe Holdings, LLC, a Superior Court judge dismissed a plaintiff’s claim that

was based on a specific contractual provision.53 Subsequently, the judge retired and

the case was assigned to his successor.54 The plaintiff renewed the claim.55 The

successor judge rejected the defendant’s contention that the law of the case doctrine

barred reconsideration of the dismissal, reinstated the claim, and found that the

defendant breached the contractual provision.56 This Court reversed, reasoning that
48
   Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 312 (6th Cir. 1997).
49
   18B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4478, at 657-58 (2d
ed. 2015) (“Implicit decision suffices, and a terse decision is even more clearly the law of the case
because it does not require a determination whether the actual decision can be inferred.”).
50
   Hanover Ins., 105 F.3d at 312 (quoting Coal Res., Inc. v. Gulf & W. Ind., 865 F.2d 761, 766 (6th
Cir. 1989)).
51
   Cede & Co., 884 A.2d at 38.
52
   Nationwide Emerging Managers, 112 A.3d at 894-95; Bailey v. State, 521 A.2d 1069, 1093 (Del.
1987); Hughes v. State, 490 A.2d 1034, 1048 (Del. 1985); Haveg Corp. v. Guyer, 211 A.2d 910, 912
(Del. 1965).
53
   Nationwide Emerging Managers, 112 A.3d at 894.
54
   Id.
55
   Id.
56
   Id.

                                                 19
under the doctrine of law of the case, the Superior Court’s legal ruling at an earlier

stage of the proceedings controls later stages of those proceedings, provided the facts

underlying the ruling do not change.57 In that case, this Court found that the factual

basis of the Superior Court’s first ruling had not changed.58 This Court further held

that reconsideration was unwarranted because “there was no error or injustice, much

less a clear one, stemming from the first ruling that would justify reconsideration.”59

      In this case, the original trial judge’s 1991 pretrial ruling, not challenged on

appeal, that Wright knowingly, voluntarily and intelligently waived his Miranda

rights established the law of the case on that issue. An implied finding that the rights

were adequately administered is essential to a finding that Miranda rights have been

knowingly, voluntarily and intelligently waived. The 1991 ruling necessarily includes

an implied finding that the rights were adequately explained. Therefore, the original

trial judge’s 1991 ruling is the law of the case on the adequacy of the Miranda rights,

unless an exception to the law of the case doctrine applies. The original trial judge’s

1992 finding that Miranda rights were given and waived three times; her ruling in

Wright’s second postconviction proceeding that he knowingly and intelligently

waived the Miranda rights; and this Court’s finding in our first opinion in Wright’s

fourth postconviction proceeding that litigation of the adequacy of the warnings was
57
   Id. at 895.
58
   Id.
59
   Nationwide Emerging Managers, 112 A.3d at 895.

                                            20
barred by Superior Court Criminal Rule 61(i)(4), serve to strengthen the conclusion

that the original judge’s 1991 ruling that Wright’s statement is admissible is the law

of the case.60

       As mentioned above, the doctrine of law of the case does not bar

“reconsideration of a prior decision that is clearly wrong, produces an injustice or

should be revisited because of changed circumstances.”61                     But none of these

exceptions applies here.

       It cannot be said that the Superior Court’s 1991 opinion denying Wright’s

Miranda challenge was clearly wrong. Wright admitted his involvement in Seifert’s

murder to Detective Moser. The record of the 1991 suppression hearing shows that

Moser correctly explained the Miranda rights and that Wright waived them. Detective

Mayfield became involved to audio/videotape the statement, which Wright had just

given to Moser. It is argued that Detective Mayfield was required to re-administer the

Miranda rights, and do so correctly. However, it cannot be said that the 1991 opinion

is clearly wrong.

       Although the argument in favor of the manifest injustice exception may have

some merit, it is not persuasive. Wright argues that he should receive the benefit of


60
   Super. Ct. Crim. R. 61(i)(4) (“Any ground for relief that was formerly adjudicated, whether in the
proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or
in a federal habeas corpus proceeding, is thereafter barred.”).
61
   Hoskins, 102 A.3d at 729.

                                                 21
the exception because the State seeks to sentence him to death. And his argument

does have some support.62 But Wright has already had multiple opportunities to

challenge the admissibility of his statement. While it is true that he has not explicitly

challenged the adequacy of his Miranda rights until his most recent motion for

postconviction relief, the facts that would be properly evaluated in such a challenge,

as described below, are the same facts considered by the original judge when she

denied his motion to suppress in 1991 and his second motion for postconviction relief.

It is not manifest injustice to deny Wright an opportunity to set the same facts before

a different judge with the hope that he will receive a different ruling.

       With regard to changed circumstances, testimony from the same witnesses

eighteen years after they first took the stand is not the sort of new evidence or changed

circumstances that forms the basis of an exception to the law of the case doctrine.63

This remains true even if inconsistencies are developed as a result.64 Memories


62
   See WRIGHT ET AL., supra note 49, § 4478, at 686-87 (suggesting that death penalty cases are
“special” and courts may be more willing to lower the bar); see also Dobbs v. Zant, 506 U.S. 357,
358-60 (1993) (“We have emphasized before the importance of reviewing capital sentences on a
complete record. . . . [R]efusal to review the transcript [which was previously unavailable] left [the
court of appeals] unable to apply the manifest injustice exception to the law of the case doctrine, and
hence unable to determine whether its prior decision should be reconsidered.”).
63
   See WRIGHT ET AL., supra note 49, at 683-84 (discussing the “high threshold” set by many courts
when considering new evidence as an exception and the reluctance to consider evidence available
during earlier proceedings as sufficient to form the basis of this exception).
64
   Inconsistencies, within a certain degree, should be expected when such a length of time has
passed, and inconsistencies will not be sufficient to form the basis of an exception unless they
significantly undermine the foundation of the prior decisions. See id. at 680-82. But, that
determination generally lies within the trial judge’s discretion. Id.

                                                  22
understandably fade over time, and testimony from the same witnesses elicited years

or decades after the original decision is of questionable value.65 If such testimony

were sufficient to sidestep the doctrine’s restrictions, the goals of efficiency, finality,

and stability would be defeated because such “new” evidence potentially exists in

every case.66

       This does not mean that evidence sufficient to satisfy the doctrine’s exception

cannot come from the same witnesses that testified many years prior. For example,

the doctrine may not prevent the court from reconsidering legal issues when a material

witness recants prior testimony.67 In such a situation, previously unavailable evidence

transforms the factual basis of the prior legal determinations.68 But evidence from

65
  The Superior Court also recognized the effects of time on a person’s memory when it commented
on Detective Moser’s memory in its 2012 decision:

           The court’s findings are not an attack on Detective Moser’s credibility. To
           the contrary, the court believes he was honest in his efforts to recall the
           events of March 14, 1991. It is no criticism of him that time may have
           eroded his memory of those long-ago events.

Wright, 2012 WL 1400932, at *41 n.132 (emphasis added); see also Pierson v. State, 338 A.2d 571,
574 (Del. 1975) (quotation omitted) (discussing the danger of relying on faded and often confused
memories in the context of written affidavits in support of search warrants).
66
   See WRIGHT ET AL, supra note 49, at 680-81 (“The needs for stability and procedural efficiency,
however, counsel that a persuasive justification should be required to support consideration of []
new evidence.”); see also id. at 683-84 n.70 (observing that courts generally do not find testimony
developed at new hearings as sufficient to satisfy the new evidence exception); Cede & Co., 884
A.2d at 40-41 (“The only circumstance that has changed since 1991 was the remand for a new trial.
This was not a basis to change matters already decided and not appealed. Because there was no
available exception to the law of the case doctrine, these findings on the discount rate and corporate
debt of Technicolor were binding upon the Court of Chancery.”).
67
   Weedon v. State, 750 A.2d 521, 528-29 (Del. 2000).
68
   Id.

                                                 23
faded memories eighteen years after an event does not constitute changed

circumstances. All of the facts and circumstances relevant to the adequacy of the

Miranda rights were known when the Superior Court rendered its decision in 1991.

There are no changed circumstances.

       None of the exceptions to the law of the case doctrine applies. For all these

reasons, the Superior Court erred in determining that the law of the case doctrine did

not apply and in suppressing the statement. Based on the law of the case, Wright’s

Miranda rights were adequately explained and waived, and therefore, his statement

is admissible.69

                   B. The President Judge of the Superior Court Shall
                        Assign the Matter to a Different Judge

       As mentioned, we do not consider the Superior Court’s denial of the State’s

motion for recusal, or express any opinion thereon. However, the trial judge in this

case may be called upon to make potentially case dispositive rulings. The judge

currently assigned to the case has stated on the record that he has virtually no

confidence in the State’s evidence. Because of this and other comments of record, we

have concluded that “the public’s confidence in the impartial administration of justice




69
  The State conceded at oral argument that Wright can still argue the voluntariness of his statement
to the jury, as he did in his first trial.

                                                24
would be enhanced if”70 a new judge presided over Wright’s case on remand.71 The

President Judge is directed to assign the case to another judge.

                                    III. CONCLUSION

       For the reasons set forth above, Wright’s statement to the police is admissible

at trial. We reverse the order of the Superior Court dismissing the indictment under

10 Del. C. § 9902(b) and remand the matter for further proceedings consistent with

this opinion. Jurisdiction is not retained.




70
  Flonnory v. State, 778 A.2d 1044, 1057 (Del. 2001).
71
  See In re One Minor Child, 411 A.2d 951, 953 (Del. 1980) (“Since the judge who sat below
expressed an opinion that there was ‘(in)sufficient likelihood that the father could prevail on the
merits of the petition to terminate his parental rights to warrant a reopening of this matter’, the
rehearing should be assigned to another judge.”).

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