           IN THE SUPREME COURT OF THE STATE OF DELAWARE


BRANDON ROBINSON,                      §
                                       §     No. 152, 2016
      Defendant-Below,                 §
      Appellant,                       §     Court Below: Superior Court
                                       §     of the State of Delaware
      v.                               §
                                       §     Cr. ID. No. 1009012821
STATE OF DELAWARE,                     §
                                       §
      Plaintiff-Below,                 §
      Appellee.                        §

                          Submitted: October 5, 2016
                          Decided:   October 13, 2016

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                       ORDER

      This 13th day of October, 2016, having considered the briefs and the record

below, it appears to the Court that:

      (1)    In 2013, a New Castle County grand jury indicted Brandon Robinson

for First Degree Murder, Attempted First Degree Murder, and two counts of

Possession of a Firearm during the Commission of a Felony for the shooting death

of Cameron Johnson and the shooting injury of Jarren Glandton. In the middle of

trial, one witness told the prosecutor for the first time that Glandton, the main eye

witness to the murder, said he was not sure he saw Robinson shoot the gun. The

prosecutor disclosed the information to Robinson’s counsel and the court
immediately. Another trial witness, a police officer, testified for the first time that

Glandton initially said he did not know who shot him. The officer’s statement was

not in her police report. The jury convicted Robinson of first degree murder and

one of the weapon possession offenses. It acquitted him of the other charges. We

affirmed Robinson’s conviction on direct appeal.

         (2)    Robinson filed a motion for postconviction relief, claiming the State

committed Brady1 violations, and his counsel was ineffective for failing to move

for a mistrial because of those violations. A Superior Court Commissioner denied

relief, holding that although the State violated Brady, Robinson suffered no

prejudice from the timing of the disclosures, counsel was able to exploit the

disclosed information, and counsel made a reasonable tactical decision not to

request a mistrial. The Superior Court adopted the Commissioner’s findings.

Robinson raises the same arguments on appeal. We find Robinson’s arguments to

be without merit, and affirm.

         (3)    On September 14, 2010, at around 9:00 p.m., Glandton and his friend

Johnson were standing at the corner of Elm and Van Buren Streets in Wilmington.

An unidentified male acquaintance of Johnson approached them. While Glandton

was on the phone with his cousin, he overheard the man ask Johnson if he could

buy Percocet from him. Johnson agreed. As Johnson was taking the man’s

1
    Brady v. Maryland, 373 U.S. 83 (1963).




                                             2
money, Robinson and a man known as “RC”2 approached the group. Robinson

walked up to Johnson and shot him from an arm’s length distance. Glandton ran

away. Robinson then shot Glandton in the leg. Glandton fell into the street and

watched the three men run away.            Johnson died from his injuries. Glandton

survived, but required surgery and was immobile for seven months.

       (4)    As first responders arrived, a crowd gathered around Glandton and

Johnson. Officer Monet Cummings of the Wilmington Police Department asked

Glandton who shot him. Glandton initially said he did not know. Glandton’s

initial statement was not in any of the officers’ police reports.3 He then shouted to

an acquaintance in the crowd, “B4 did this, your peoples did this.”5                Officer

Cummings also heard Glandton shout “they killed Cam and she6 shot him for some

pills.”7 Police arrested Robinson and charged him with First Degree Murder,

Attempted First Degree Murder, and two counts of Possession of a Firearm during

the Commission of a Felony.

       (5)    On the fifth day of trial, the prosecutor informed Robinson’s counsel

and the Superior Court that a witness, Keisha Henry, provided her with new


2
  Glandton identified the man as a person he knew as “RC” after viewing pictures on Facebook.
3
  Officer Cummings did not write her own report; her supervisor wrote it.
4
  Glandton knew Robinson as “Brandon” or “B.”
5
  App. to Opening Br. at 23. Officer Cummings also heard Glandton yell to someone in a crowd
of spectators, “your boy B shot me.” App. to Opening Br. at 27.
6
  The word “she” is a typographical error as will be discussed later.
7
  App. to Opening Br. at 23 (emphasis added).




                                             3
information on the way into court.                Henry told the prosecutor that she and

Glandton had spoken multiple times about the shooting through e-mail, text, and

social media. She said that in those conversations, Glandton expressed uncertainty

about who shot him. Robinson’s counsel examined Henry outside the presence of

the jury. Henry testified that Glandton had told her that everything “happened so

fast” and that the “word on the street” was that RC had shot him.8 Henry had

previously told police that Glandton told her Robinson had shot him. She could

only produce one message from Glandton asking her to call him, and a photograph

he sent her of RC as evidence of their conversations.

         (6)     Following a seven day Superior Court jury trial, a jury convicted

Robinson of First Degree Murder and one count of Possession of a Firearm during

the Commission of a Felony. The jury acquitted him of Attempted First Degree

Murder and the other weapons offense. The trial judge sentenced Robinson to life

in prison for First Degree Murder and eight years for Possession of a Firearm

during the Commission of a Felony. This Court affirmed Robinson’s conviction

on direct appeal.9

         (7)     Robinson moved pro se for postconviction relief on October 2, 2013.

The Superior Court appointed counsel, and referred the matter to a Commissioner.


8
    Id.
9
    Robinson v. State, 65 A.3d 617 (Del. 2013).




                                                  4
After the court appointed counsel, Robinson filed an amended motion.             The

Commissioner denied the motion, and the Superior Court affirmed the

Commissioner’s findings. This appeal followed.

       (8)     Robinson raises four issues on appeal: (1) the Superior Court erred by

denying his direct claim of multiple Brady violations; (2) Robinson’s counsel was

constitutionally ineffective for failing to move for a mistrial based on the alleged

Brady violations; (3) the Superior Court erred by denying Robinson’s claim of

cumulative due process errors; and (4) the Superior Court abused its discretion

when it refused to grant an evidentiary hearing. We review the Superior Court’s

denial of a Rule 61 motion for postconviction relief for abuse of discretion.10 “We

review ineffective assistance of counsel claims and alleged Brady violations de

novo.”11

       (9)     Robinson first argues that the State violated Brady by failing to

provide in advance of trial the two statements Glandton made in front of Officer

Cummings, and the conversations that Glandton had with Henry. As with all

motions for postconviction relief, the Court must determine whether the claims are

procedurally barred under Superior Court Criminal Rule 61.12 When Robinson

filed his motion for postconviction relief in 2013, Rule 61(i)(3) provided that

10
   Neal v. State, 80 A.3d 935, 941 (Del. 2013).
11
   Starling v. State, 130 A.3d 316, 325 (Del. 2015).
12
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).




                                                5
claims that could have been raised on direct appeal could not be asserted in

postconviction relief proceedings.13 Here, Robinson’s counsel was aware of the

alleged Brady violations at trial, and could have raised them in the trial court and

on direct appeal.      But under former Rule 61(i)(5), if Robinson can show “a

colorable claim that there was a miscarriage of justice because of a constitutional

violation that undermined the fundamental legality, reliability, integrity or fairness

of the proceedings leading to the judgment of conviction,” he is relieved from the

procedural default.14 This Court has held that viable Brady claims fall within the

miscarriage of justice exception.15 After our review of Robinson’s Brady claims,

we find that they are procedurally defaulted and his counsel was not ineffective for

failing to move for a mistrial.

       (10) In Brady v. Maryland the United States Supreme Court held that the

State’s failure to disclose to the defense material exculpatory evidence violates the

Fourteenth Amendment.16 A Brady violation can occur “irrespective of the good

faith or bad faith of the prosecution.”17 A Brady violation occurs when “[t]he

evidence at issue [was] favorable to the accused, either because it [was]



13
   See Bradley v. State, 135 A.3d 748, 757 (Del. 2016) (holding that the Court must apply the
version of the rule governing postconviction proceedings that was in effect at time of filing).
14
   Id (quoting Super. Ct. Crim. R. 61(i)(5)).
15
   Wright v. State, 91 A.3d 972, 986 (Del. 2014).
16
   373 U.S. at 87.
17
   Starling v. State, 882 A.2d 747, 756 (Del. 2005).




                                              6
exculpatory, or because it [was] impeaching; [the] evidence [was] suppressed by

the State; either willfully or inadvertently; and prejudice . . . ensued.”18

       (11) The Commissioner held that “it [was] clear that Glandton’s statements

to Cummings and Henry were not disclosed prior to trial, despite being within the

reach of the State to do so,” thus violating Brady.19 Further, the Commissioner

held that “[t]he State had an obligation to provide the statements and, had the Court

today found that this resulted in prejudice, the Court would have found in

Defendant’s favor.”20

       (12) After our review of the statements in question, we find that only one

of them is arguably Brady material. Henry’s statement was not Brady material

because it was not suppressed. It was only during the middle of trial that Henry

told the prosecutor that Glandton had told her that “the word on the street” was that

RC had shot him, not Robinson. The prosecutor disclosed the information to

Robinson’s counsel and the Superior Court as soon as she received it. Robinson’s

counsel was then able to effectively cross examine Henry and Glandton about the

statement at trial. Officer Cumming’s testimony that she heard Glandton shout

“they killed Cam and she shot him for some pills” is nothing more than a

typographical error. There was no evidence that a female was present during the

18
   Norman v. State, 968 A.2d 27, 30 (Del. 2009) (citing Atkinson, 778 A.2d at 1063).
19
   Opening Br. Ex. A.
20
   Id.




                                               7
incident. Had Officer Cummings actually said “she” rather than “he,” counsel on

both sides would have explored the statement further. Throughout the entire case,

the witnesses consistently testified that three men were involved in the drug

transaction and shooting.

          (13) Thus, the only statement that is arguably Brady material is Officer

Cumming’s statement that when she first asked Glandton who had shot him, he

said he did not know. As the Commissioner found, the State did not suppress

Officer Cumming’s statement, but delayed disclosure because the information did

not appear in any police reports. Where delayed disclosure occurs:

          If the evidence is both favorable and material, a determination must be
          made whether its delayed disclosure precluded effective use of the
          information at trial. When a defendant is confronted with delayed
          disclosure of Brady material, reversal will be granted only if the
          defendant was denied the opportunity to use the material effectively.21

          (14) The Commissioner properly found that trial counsel was able to make

effective use of the disclosure at trial.               Counsel thoroughly cross-examined

Cummings about the statement and relied on it in his closing argument. Through

counsel’s effective cross examination, he elicited testimony from Glandton that he

had not seen the person who shot him, and that it was possible RC had pulled out a

gun after he turned and ran. Trial counsel stated in his affidavit that the additional



21
     White v. State, 816 A.2d 776, 778 (Del. 2003) (internal citations omitted).




                                                   8
evidence was a “windfall” and that he was able to use it effectively.22 In fact, the

jury acquitted Robinson of Attempted First Degree Murder and the related

weapons offense, indicating that counsel effectively highlighted Glandton’s

uncertain memory. Thus, the State’s delayed disclosure is not a Brady violation

requiring reversal.

       (15) Robinson next argues that trial counsel was ineffective for failing to

request a mistrial when faced with the State’s Brady violations. Under Strickland

v. Washington,23 counsel is constitutionally ineffective if (1) counsel’s

representation fell below an objective standard of reasonableness, and (2)

defendant was prejudiced by counsel’s error.24 To show prejudice, the defendant

must demonstrate that it is reasonably likely the outcome of trial would have been

different had counsel not committed the error.25 A defendant bears a heavy burden

in establishing counsel was constitutionally ineffective.26 Further, “there is no

need to examine whether an attorney performed deficiently if the deficiency did

not prejudice the defendant.”27

       (16) Counsel could not be ineffective for failing to move for a mistrial if

the State did not violate Brady. Further, trial counsel made a strategic decision not

22
   App. to Opening Br. at 109-11.
23
   466 U.S. 668, 688 (1984).
24
   Brooks v. State, 40 A.3d 346, 354 (Del. 2012).
25
   Id.
26
   Hoskins v. State, 102 A.3d 724, 730 (Del. 2014).
27
   Ploof v. State, 75 A.3d 811, 825 (Del. 2013).




                                               9
to request a mistrial. In trial counsel’s Rule 61 affidavit, counsel explained that he

did not feel the need to request a mistrial when he heard Officer Cumming’s

testimony because he was able to use that evidence effectively.28 Robinson also

cannot establish prejudice from the alleged violation.

          (17) Robinson next argues that the cumulative effect of the State’s Brady

violations together with counsel’s ineffectiveness in failing to request a mistrial

requires this Court to order a new trial. Because Robinson’s underlying claims are

without merit or did not prejudice him, he has failed to establish cumulative error.

          (18) Finally, Robinson argues that the case should be remanded because

the Superior Court abused its discretion when it refused to hold an evidentiary

hearing. Superior Court Criminal Rule 61(h) provides that the Superior Court may

order an evidentiary hearing if, after reviewing parties’ submissions, it finds that

one is desirable. “Rule 61 does not mandate the scheduling of an evidentiary

hearing in every case, but, rather, leaves it to the Superior Court to determine

whether an evidentiary hearing is needed.”29                 The record below sufficiently

informed the court of the nature of Robinson’s claims as evidenced by the

Commissioner’s decision.            Thus, the Superior Court acted within its broad




28
     App. to Opening Br. at 109-11.
29
     Getz v. State, 77 A.3d 271, 2013 WL 5656208, at *1 (Del. Oct. 15, 2013) (Table).




                                                10
discretion to summarily dispose of Robinson’s motion without holding an

evidentiary hearing.

      NOW, THEREFORE, it is hereby ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                       BY THE COURT:

                                       /s/ Collins J. Seitz, Jr.
                                               Justice




                                  11
