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




STATE OF DELAWARE                      )
                                       )
      v.                               )          Cr. ID No. 090813580
                                       )
EFRAIN RIVERA,                         )
                                       )
            Defendant.                 )

                         Date Submitted: April 8, 2015
                          Date Decided: July 9, 2015


                         MEMORANDUM OPINION




Christopher S. Koyste, Esquire, Attorney for Defendant.

Martin B. O’Connor, Deputy Attorney General, Department of Justice, Attorney
for the State of Delaware.



Rocanelli, J.
I.       PROCEDURAL HISTORY

         On May 18, 2010, a Superior Court jury found Defendant Efrain Rivera

guilty of one count of Rape in the First Degree; one count of Rape in the Second

Degree; one count of Menacing; one count of Assault in the Third Degree; two

counts of Terroristic Threatening; and one count of Endangering the Welfare of a

Child. Andrew J. Witherell, Esquire (“Trial Counsel”) represented Defendant at

trial.     On July 23, 2010, the Trial Court sentenced Defendant to eighteen (18)

years at Level V, suspended after fifteen (15) years for three years at Level IV,

suspended after six months for two years at Level III. On July 25, 2011, the

Delaware Supreme Court affirmed Defendant’s conviction. 1

         On October 22, 2012, Defendant filed a Motion for Appointment of Counsel

to pursue postconviction relief. On December 11, 2012, the Court appointed

Christopher S. Koyste, Esquire (“Rule 61 Counsel”). After motion practice

regarding discovery, 2 Defendant filed the pending Motion for Postconviction

Relief (“PCR Motion”).

II.      FACTS PRESENTED AT TRIAL SUPPORTING CONVICTION




1
    Rivera v. State, 26 A.3d 214 (Del. 2011).
2
    State v. Rivera, 2014 WL 2538678 (Del. Super. June 4, 2014).
                                                1
       On August 14, 2009, Defendant was at the residence of Juan Pacheco.

Cariely Rosado, Pacheco’s niece, also lived at the residence with Rosado’s infant

child. Defendant left the residence when Pacheco was going to bed. Rosado was

asleep in her bedroom on the first floor, which Rosado shared with her infant child.

Later, Defendant returned to the residence and entered Rosado’s bedroom.

Defendant held a knife to Rosado’s throat and sexually assaulted Rosado while

Rosado’s infant child was in the bed with Rosado.

       Defendant left the residence and Rosado ran upstairs to alert Pacheco, who

then called the police. Rosado, Pacheco, and Defendant were all interviewed by

the police following the report. In addition, Rosado was examined by a nurse who

testified as a witness at trial.

III.   DEFENSE STRATEGY AT TRIAL

       Trial Counsel’s defense was to deny any relationship between Defendant

and Rosado. This strategy was consistent with Defendant’s statements to the

police when he was interviewed at the time of the criminal report.

IV.    DEFENDANT’S PCR MOTION THEORY OF AN AFFAIR-DEFENSE

       The central gravamen of Defendant’s PCR Motion claims that Defendant

and Rosado were having a consensual affair and that Trial Counsel was ineffective

for failing to present evidence consistent with this defense theory. However, as

discussed in connection with each of the claims, presentation of such a defense was


                                         2
inconsistent with the evidence to the contrary and there was no evidence to support

an affair-defense other than Defendant’s own testimony. The testimony of Rosado,

the testimony of the nurse who examined Rosado after the assault, and other

physical evidence supported a finding that the sexual intercourse was not

consensual. Other than Defendant’s own proffered testimony, there is no evidence

to support the version of events offered by Defendant in his PCR Motion.

       For example, Defendant now claims that on the night of the assault he and

Rosado had a fight and that Rosado made up the rape when Pacheco heard the

argument in order to hide their affair. However, Pacheco testified that he only

woke up when Rosado went upstairs to tell him about the rape. 3 At no point did

Pacheco testify that he heard an argument between Defendant and Rosado.

       Moreover, Defendant has not presented any support for his recent claim that

he even told Trial Counsel before the trial about the claimed affair.4 As discussed

below, even if Defendant had raised with Trial Counsel an affair-defense at the

time of trial, it was professionally reasonable to reject an affair-defense as a trial

strategy.

V.     ASSERTED GROUNDS FOR POSTCONVICTION RELIEF




3
  Trial Tr. at 55, May 11, 2010.
4
  Trial Counsel’s affidavit does not suggest that Defendant ever informed Trial Counsel of his
alleged affair with Rosado. See Trial Counsel Aff., Oct. 20, 2014.
                                              3
         Defendant asserts six grounds for relief in his PCR Motion: (1) ineffective

assistance of Trial Counsel in failing to appeal the Trial Court’s ruling that

Rosado’s Section 3507 statement was admissible; (2) ineffective assistance of Trial

Counsel for failing to properly advise Defendant of his right to testify; (3)

ineffective assistance of Trial Counsel for failing to adequately cross examine

Pacheco; (4) ineffective assistance of Trial Counsel for failing to investigate the

contents of Defendant’s cell phone; (5) multiple Brady violations including (a) that

the State failed to disclose information in relation to Pacheco and a Wilmington

Police Officer involved in the police interviews and (b) that the State failed to

disclose information regarding any deal between Rosado and the State; and (6)

cumulative due process error undermining Defendant’s right to a fair trial.

VI.      PROCEDURAL BARS TO POSTCONVICTION RELIEF

         Before addressing the merits of a motion for postconviction relief, this Court

must consider the procedural requirements of Rule 61(i). 5 Rule 61(i)(1) requires a

motion for postconviction relief be filed within one year after the judgment of

conviction is final. The Supreme Court affirmed Defendant’s conviction and

sentence on July 25, 2011. Defendant did not seek appointment of counsel to

pursue postconviction relief until October 22, 2012, after the one-year time limit

under Rule 61(i)(1) had already lapsed.                 Even assigning the filing date to


5
    Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
                                                  4
Defendant’s first inquiry, Defendant’s PCR Motion does not satisfy the procedural

time bar of Rule 61(i)(1) and, therefore, his claims are time-barred.

       In order to avoid the procedural time bar of Rule 61(i)(1), Defendant must

satisfy the requirements of Rule 61(i)(5), which was amended on June 4, 2014.

Pursuant to the pre-amendment version of Rule 61(i)(5), procedural bars to relief

“shall not apply to a claim that the court lacked jurisdiction or to a colorable claim

that there was a miscarriage of justice because of a constitutional violation that

undermined the fundamental legality, reliability, or fairness of the proceedings

leading to the judgment of conviction.” 6 The June 4, 2014 amendments to Rule 61

eliminated this constitutionally based fundamental fairness exception.7 Pursuant to

the post-amendment version of Rule 61(i)(5), procedural bars “shall not apply

either to a claim that the court lacked jurisdiction or to a claim that satisfies the

pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this

rule.” 8 Defendant’s PCR Motion does not qualify for the Rule 61(i)(5) exception

to the procedural bars under the pre-amendment 9 or post-amendment 10 version of


6
  Super. Ct. Crim. R. 61(i)(5) (pre-June 4, 2014 amendment).
7
   See Gibbs v. State, 2015 WL 3843378, at *2 n.23 (Del. June 18, 2015) (discussing Rule
61(d)(2)).
8
  Super. Ct. Crim. R. 61(i)(5).
9
   Defendant’s PCR Motion does not satisfy the fundamental fairness exception, which is a
narrow exception applied in limited circumstances. Younger v. State, 580 A.2d 552, 555 (Del.
1990).
10
   Defendant’s PCR Motion does not claim that the court lacked jurisdiction nor does it “plead
with particularity that new evidence exists that creates a strong inference that the movant is
actually innocent[;]” or “plead with particularity a claim that a new rule of constitutional law,
                                               5
Rule 61. Nevertheless, even if Defendant’s PCR Motion was procedurally sound,

Defendant’s claims fail on the merits for the reasons that follow.

VII. DEFENDANT’S CLAIMS OF INEFFECTIVE ASSISTANCE OF
     COUNSEL

       Defendant raises four claims of ineffective assistance of counsel. 11 Claims

of ineffective assistance of counsel are governed by the two-prong Strickland

test.12 The movant must demonstrate (1) that counsel’s representation fell below

an objective standard of reasonableness, 13 and (2) that counsel’s errors prejudiced

defendant.14 In considering the first prong, there is a strong presumption that

counsel’s actions were professionally reasonable.15 Additionally, judicial scrutiny

should be highly deferential to counsel’s decisions on trial strategy. 16                       In

considering the second prong, the movant must show “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” 17 Failure to prove either prong renders the

claim insufficient.18


made retroactive . . . [and] appli[cable] to the movant’s case and renders the conviction . . .
invalid.” Super Ct. Crim. Rule 61(d)(2)(i), (ii).
11
   Defendant’s claims of ineffective assistance of counsel are not subject to the procedural bar of
Rule 61(i)(3) because ineffective claims are meant to be raised in the postconviction setting. See
Duross v. State, 494 A.2d 1265, 1267 (Del. 1985).
12
   Strickland v. Washington, 466 U.S. 668 (1984).
13
   Id. at 688.
14
   Id. at 694.
15
   Id. at 688.
16
   Id. at 689.
17
   Id. at 694.
18
   Id. at 700.
                                                6
A. Failure to Appeal the Admission of Rosado’s Section 3507 Statement

       Defendant claims that Trial Counsel was ineffective for not appealing the

admission of Rosado’s statement to the police into evidence at trial.                     The

admission of Rosado’s statement is governed by Section 3507 of Title 11 which

provides that “the voluntary out-of-court prior statement of a witness who is

present and subject to cross examination may be used as affirmative evidence with

substantive independent testimonial value.” 19 Proper admission of a voluntary out-

of-court statement under Section 3507 requires the declarant to testify as to the

events and the truthfulness of the statement on direct examination. 20

       Defendant argues that Rosado’s statement was improperly admitted because

Rosado never testified as to its truthfulness. Further, despite objecting at the time,

Defendant argues that Trial Counsel was ineffective for not appealing the improper

admission. Defendant’s claim does not satisfy the first prong of Strickland because

Defendant cannot overcome the strong presumption that Trial Counsel’s actions

were professionally reasonable. Contrary to the claim in Defendant’s PCR Motion,

Trial Counsel made an effort to exploit Rosado’s statement during cross-

examination as a method of challenging Rosado’s credibility and to address



19
   11 Del. C. § 3507(a).
20
   See Wyche v. State, 113 A.3d 162, 165 (Del. 2015) (discussing the voluntariness of § 3507
statements); Ray v. State, 587 A.2d 439, 443 (Del. 1991) (requiring the declarant of the § 3507
statement testify as to the truthfulness of the statement).
                                              7
inconsistencies between Rosado’s statement and her testimony at trial.21

Additionally, during cross-examination Rosado stated, “I’m going to try and keep

[to] the truth as much as possible and say everything I thought that happened that

day.” 22 Therefore, despite Trial Counsel’s initial objection to the admission of

Rosado’s statement, Rosado did testify as to the truthfulness of events discussed in

her statement.

       Once Rosado testified about the events and the truthfulness of her statement,

it was reasonable for Trial Counsel to conclude that the Section 3507 violation was

one of form and not substance or that it was more technical in nature. The

Delaware Supreme Court has held that such technical violations do not overcome

the presumption of professional reasonableness. 23 Therefore, the Court finds that

Trial Counsel’s decision not to appeal the admission of Rosado’s statement into

evidence was reasonable under the prevailing professional norms. 24


21
   Trial Tr. at 44–45, May 12, 2010.
22
   Id. at 30.
23
   See Hoskins v. State, 102 A.3d 724, 735 (Del. 2014) (stating that the awkward phrasing of the
§ 3507 foundation was “insufficient grounds…to overcome the presumption of trial counsel’s
reasonableness.”); Jackson v. State, 643 A.2d 1360 (Del. 1994) (finding that the “technical non-
compliance with the foundational requirements” was harmless).
24
   See e.g., Turner v. State, 5 A.3d 612, 616–17 (Del. 2010) (providing that § 3507 statements
“must be offered into evidence no later than at the conclusion of direct examination of the
declarant” to avoid placing “any strategic burden on the non-offering party.”) (quoting Smith v.
State, 669 A.2d 1, 8 (Del. 1995)). In Turner, the State did not offer the declarant’s Section 3507
statement into evidence until defense counsel began cross-examination without objection from
defense counsel. The Turner Court concluded that, despite trial counsel’s failure to object, the
defendant could not establish a claim of ineffective assistance of counsel because defense
counsel had asked only four questions on cross-examination before the State offered the
statement into evidence and, therefore, defense counsel was not subject to strategic burden. Id.
                                                8
       Moreover, even assuming that Trial Counsel’s performance did fall below a

reasonable professional standard, Defendant is unable to demonstrate prejudice.

Defendant argues that the admission of Rosado’s statement was prejudicial

because Rosado offered evidence of penetration, which Rosado did not state in her

trial testimony. However, Defendant’s argument ignores the testimony by other

witnesses who presented evidence of penetration at trial. First, the nurse who

examined Rosado after the assault testified at trial that Rosado told the nurse

during the physical examination that there had been penetration during the rape.25

Second, DNA evidence from a vaginal swab of Rosado provided evidence of

penetration; specifically, that Defendant had ejaculated inside Rosado. 26 Thus, the

record included evidence of penetration even without Rosado’s statement during

her police interview. Accordingly, the admission of Rosado’s statement did not

prejudice Defendant.

       Defendant cannot satisfy either prong of Strickland and, therefore, his claim

of ineffective assistance of counsel must be denied.


Here, however, the State admitted Rosado’s statement into evidence in a timely manner despite
the fact that Rosado testified as to the truthfulness of her statement on cross-examination. Even
if Trial Counsel did appeal the admission of Rosado’s statement, the error would not mandate
reversal under the plain error standard of review. See Smith, 669 A.2d at 8 (concluding that
under the plain error standard of review—an error so clearly prejudicial that it jeopardizes the
defendant’s right to a fair trial—the improper introduction of a § 3507 did not deprive the
defendant of a fair trial). Therefore, because Rosado did testify as to truthfulness, albeit on
cross-examination, the Court is satisfied that Trial Counsel’s decision not to appeal the
admission of Rosado’s statement was reasonable.
25
   Trial Tr. at 14, May 13, 2010.
26
   Trial Tr. at 83–86, May 12, 2010.
                                               9
B. Failure to Seek Suppression of Defendant’s Statement to Police Which
Defendant Claims Undermined His Right to Decide Whether to Testify

       Defendant argues that Trial Counsel was ineffective because Trial Counsel

did not move to suppress Defendant’s statement to the police. Defendant contends

that Trial Counsel should have moved to suppress Defendant’s statement because it

was involuntary in violation of the Fourteenth Amendment. 27                   Furthermore,

Defendant argues that suppression of his prior incriminating statement would have

allowed Defendant to decide to testify at trial without worrying that the State

would use his statement against him on cross-examination.                      Specifically,

Defendant claims that he would have testified that he and Rosado were having a

consensual affair and that Rosado fabricated the rape in order to prevent Pacheco

from discovering the affair.

       Defendant cannot satisfy the second prong of Strickland. 28                  Even if

Defendant had testified about an affair, it is likely that such testimony would have

hurt Defendant, not helped him, because his testimony about an affair was

inconsistent with the weight of the evidence to the contrary.               Moreover, had


27
  See Spano v. New York, 360 U.S. 315 (1959); Colorado v. Connelly, 479 U.S. 157 (1986).
28
   See Hoskins, 102 A.3d at 730 (“‘In particular, a court need not determine whether counsel's
performance was deficient before examining the prejudice suffered by the defendant as a result
of the alleged deficiencies.’”) (quoting Strickland, 466 U.S. at 697).
                                             10
Defendant testified he would have been subjected to cross-examination, including

his criminal history (albeit limited to arrests for driving under the influence) and

the State would have exploited the inconsistencies between Defendant’s testimony

and the testimony, and prior consistent statements, of Pacheco and Rosado as well

as the testimony of the nurse who examined Rosado, all of which would have

contradicted Defendant’s claimed affair-defense. It was therefore reasonable for

Trial Counsel to have concerns about how the jury would have perceived

Defendant’s credibility.

       Accordingly, Defendant cannot satisfy the prejudice prong of Strickland and,

therefore, his claim of ineffective assistance of counsel must be denied.29 Because

the Court finds no prejudice, the Court will not address whether Trial Counsel’s

decision not to file a motion to suppress Defendant’s statement to the police was

objectively reasonable under the prevailing professional norms.

C. Failure to Adequately Cross Examine Pacheco

       Defendant argues that Trial Counsel was ineffective for failing to use

statements Pacheco made during his police interview to impeach Pacheco on cross-

examination. Pacheco’s police interview was conducted in Spanish with an officer

serving as an interpreter (“Interpreting Officer”) for the English-speaking


29
   See Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often be so, that course should be
followed.”).
                                               11
detective. In Pacheco’s voluntary statement to the police—not in response to a

question—Pacheco offered that Defendant entered the residence through a window

that Defendant first broke and then opened.30 Pacheco made this statement in

Spanish and it was not translated by the Interpreting Officer at the time of the

interview or included in the police report prepared by the English-speaking officer.

Defendant contends that the absence of any broken window at the residence

supports the theory that Rosado let Defendant inside the residence as part of their

affair and that Pacheco made up the story about the broken window to help Rosado

cover up the affair.

       However, there was no inconsistency to exploit on cross-examination

because Pacheco—in response to police questioning—stated that he had locked all

of the windows and doors before going to bed. 31 Defendant argues that Trial

Counsel should have used Pacheco’s statement about the broken window to

impeach Pacheco because Pacheco was the only person to ever mention a broken

window and no police officer testified regarding a broken window at the residence.

Pacheco testified at trial that he saw a window open after he came downstairs. 32

       Pacheco’s prior statement did not contradict Pacheco’s testimony at trial.

Although Pacheco did not say that the window was broken, and no other testimony


30
   Pacheco Tr. Police Interview at 5, Aug. 15, 2009.
31
   Id.
32
   Trial Tr. at 55, May 11, 2010.
                                               12
was offered to that effect, Pacheco’s testimony was reasonably consistent with his

previous statement. Accordingly, Defendant’s reliance on Moore v. Secretary

Pennsylvania Department of Corrections 33 is misplaced. In Moore, the Third

Circuit held “Counsel’s failure to introduce evidence that contradicts a key

witness’s trial testimony is patently unreasonable.”34 Here, however, Pacheco’s

prior statement was not a contradiction.

         Defendant’s claim does not satisfy the first prong of Strickland because

Defendant has not demonstrated that Trial Counsel’s performance fell below an

objective standard of reasonableness. Moreover, even assuming that Trial Counsel

was ineffective in failing to translate Pacheco’s statement into English, Defendant

cannot demonstrate prejudice. Defendant is unable to demonstrate that, but for

Trial Counsel’s error the outcome of the proceedings would have been different.

Defendant argues that Pacheco’s statement contained exculpatory information

because, if there was no broken window, it is likely that Rosado let Defendant into

the residence in connection with the affair Defendant claims they were having.

However, Pacheco did testify at trial that he saw a window open after he came

downstairs. Therefore, it would not have changed the outcome of the trial even if

Trial Counsel had cross-examined Pacheco on the statement he previously made



33
     457 Fed.Appx. 170 (3d Cir. 2014).
34
     Id. at 182.
                                           13
about a broken window, which was not included in the police report and was not a

central focus of the State’s case against Defendant.

          Defendant cannot satisfy either prong of Strickland and, therefore, his claim

of ineffective assistance of counsel must be denied.

D. Failure to Investigate Contents of Defendant’s Cell Phone

          Defendant claims that Trial Counsel was ineffective for failing to investigate

the contents of Defendant’s cell phone, which the Wilmington Police Department

seized following Defendant’s arrest. Defendant argues that reviewing the phone

would have provided evidence that Defendant and Rosado were having an affair,

which would have helped to impeach Rosado’s testimony at trial. Defendant

cannot establish that Trial Counsel’s performance fell below an objective standard

of reasonableness. Strickland provides that “counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes particular investigations

unnecessary.” 35        Strickland further states that decisions not to investigate are

assessed for “reasonableness in all the circumstances, applying a heavy measure of

deference to counsel’s judgments.”36

          During Defendant’s police interview, Defendant consistently denied having

any sort of relationship with Rosado. This denial is inconsistent with Defendant’s

recently purported defense of an affair. As discussed above, Trial Counsel’s

35
     Strickland, 466 U.S. at 691.
36
     Id.
                                             14
decision not to focus on an affair-defense was a sound trial strategy and was

professionally reasonable. Trial Counsel reasonably concluded that investigating

the contents of Defendant’s cell phone would have been fruitless to the defense

strategy, which did not include any mention of an affair. Therefore, consistent

with Strickland, Trial Counsel made a professionally reasonable strategic decision

that investigation into the contents of Defendant’s cell phone was unnecessary.

Trial Counsel’s decision, being reasonable under the circumstances, is entitled to

deference by the Court.

          Even if Defendant established that Trial Counsel’s performance fell below

an objective standard of reasonableness, Defendant is unable to establish prejudice

as a result because Defendant would still need to overcome the inconsistencies

between his purported defense of an affair and his statements made immediately

following the incident that he had no relationship whatsoever with Rosado. Any

evidence from Defendant’s cell phone would also be inconsistent with the

testimony of other witnesses, including Rosado and the nurse who examined her.

Defendant cannot establish “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.”37




37
     Id. at 694.
                                          15
      Defendant cannot satisfy either prong of Strickland and, therefore, his claim

of ineffective assistance of counsel must be denied.




                                         16
VIII. DEFENDANT’S CLAIMS OF BRADY VIOLATIONS

       Defendant’s PCR Motion argues that the State committed multiple Brady

violations during the trial that warrant reversal of his conviction.38          The United

States Supreme Court held in Brady v. Maryland,39 that “suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” 40 In U.S. v. Bagley, the United States

Supreme Court further held that the State has an affirmative duty to produce

favorable evidence regardless of whether or not it is requested by the defense.41

The Bagley Court held that favorable evidence must be disclosed where “there is a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” 42 Additionally, the prosecutor

has a duty to seek out “any favorable evidence known to the others acting on the

government's behalf in the case, including the police.” 43




38
    The Court will examine Defendant’s claims of Brady violations because Brady violations
undermine the core principles of a fair proceeding. See Jackson v. State, 770 A.2d 506, 515–16
(Del. 2001).
39
   373 U.S. 83 (1963).
40
   Id. at 87.
41
   United States v. Bagley, 473 U.S. 667, 682 (1985).
42
   Id.
43
   Kyles v. Whitley, 514 U.S. 419, 437 (1995).
                                             17
          The Court must conduct a three-prong analysis to determine if a Brady

violation occurred: “(1) evidence exists that is favorable to the accused, because it

is either exculpatory or impeaching; (2) that evidence is suppressed by the State;

and (3) its suppression prejudices the defendant.”44

A. Alleged Failure by State to Disclose Broken Window Statement by Pacheco
to Wilmington Police

          Defendant argues that information relating to Pacheco’s statement

concerning a broken window at the residence during his police interview, and the

identity of a Wilmington Police Officer conducting the interview, were suppressed

in violation of Defendant’s rights under Brady and that he was prejudiced as a

result.

          During Pacheco’s police interview, Pacheco made the unsolicited statement

that Defendant broke a window to enter the residence, but the identity of the

Interpreting Officer—who failed to translate Pacheco’s broken window

statement—is unknown.45                 Defendant contends that information regarding

Pacheco’s claim of a broken window, including the identity of the Interpreting

Officer and the Interpreting Officer’s notes or reports were Brady information

because it was favorable in impeaching Pacheco’s testimony at trial. Defendant

further contends that this information was suppressed by the prosecution and that


44
     Starling v. State, 882 A.2d 747, 756 (Del. 2005) (internal citations omitted).
45
     Pacheco Tr. Police Interview at 5, Aug. 15, 2009.
                                                   18
Defendant was prejudiced because the information would have impeached Pacheco

and supported Defendant’s purported defense that Rosado let Defendant into the

residence in connection with their ongoing affair.

       Defendant has not established a Brady violation because the information is

neither exculpatory nor impeaching.      As discussed in relation to Defendant’s

ineffective assistance of counsel claims, Pacheco’s testimony was reasonably

consistent with Pacheco’s statement to the police and with the testimony of the

other witnesses.   Pacheco testified at trial that a window was open when he came

downstairs. There was no other report of a broken window and no other mention

of a broken window aside from the unsolicited statement made by Pacheco during

his police interview. A broken window was not a central part of the State’s case

against Defendant and was not inconsistent with the trial testimony of Pacheco.

Presentation of Pacheco’s prior statement would not have affected the outcome of

the trial.

       Even assuming that the unsolicited statement about a broken window was

Brady information, Defendant cannot establish that the statement was suppressed

by the State. Trial Counsel had access to Pacheco’s police interview as a result of

discovery. Therefore, Trial Counsel had an actual recording of the interview with

the Wilmington Police Officer during which the statement about the broken

window was made. The statement was made available to Defendant.


                                         19
      Accordingly, the Court finds that there was no Brady violation regarding

Pacheco’s broken window statement.

B. Alleged Failure by State to Disclose “Deal” between Rosado and the State
Regarding Rosado’s Probation

      Defendant argues that the State committed a Brady violation in suppressing

information concerning any express or implied “deal” between the State and

Rosado that Trial Counsel could have used to impeach Rosado’s testimony at trial.

During the trial, Rosado was on probation for possession with intent to deliver a

controlled substance. Rosado was discharged from probation some time after

Defendant’s trial after completing all the special conditions of her probation and

for Rosado’s overall compliance while on probation. Defendant contends that the

special conditions of Rosado’s probation are unknown; that one of these special

conditions could have been her agreeing to testify against Defendant in exchange

for less time on probation; and that an evidentiary hearing is needed to uncover

evidence of any explicit or implied deal between the State and Rosado.

      The Court finds no Brady violation.       Defendant has not provided any

evidence that there was any deal between the State and Rosado. Further, as the

State notes, there is no evidence of an agreement in the record. Regardless of the

State’s concession that an evidentiary hearing would discern whether or not

Rosado had an implied understanding that her probation would be shorter as a



                                        20
result of her testimony, the Court finds Defendant has not provided sufficient

evidence to support his claim of an agreement to testify that warrants a hearing.

          Accordingly, the Court finds that there was no Brady violation regarding an

alleged deal between the State and Rosado regarding Rosado’s probation.

C. Cumulative Brady Violation

          Defendant argues that the cumulative impact of the multiple instances of

suppressed information result in a Brady violation. However, Defendant’s claims

do not establish that the State suppressed any evidence, Brady or otherwise.

Accordingly, because Defendant has not established that even a single Brady

violation occurred, the Court finds that no cumulative Brady violation has

occurred.

IX.       DEFENDANT’S CLAIM OF CUMULATIVE ERROR

          Defendant argues that the cumulative impact of the ineffective assistance of

counsel and Brady violations violated his due process rights and warrants reversal

of his conviction. The applicable decisional law provides that the cumulative

result of errors at trial may result in plain error requiring reversal even where the

individual errors standing alone would not. 46 The Court finds that Defendant has

not established any of his claims of ineffective assistance of counsel or Brady




46
     Wright v. State, 405 A.2d 685, 690 (Del. 1979).
                                                 21
violations. Because Defendant has not established any individual errors, there can

be no cumulative error denying Defendant due process.

X.    CONCLUSION

      This Court finds Defendant’s postconviction claims are time-barred and

without merit. Defendant has not established that Trial Counsel was ineffective.

Additionally, Defendant has not established that any Brady violation occurred.

      NOW, THEREFORE, this 9th day of July, 2015, Defendant Efrain

Rivera’s Motion for Postconviction Relief is hereby DENIED.

      IT IS SO ORDERED.

                                      Andrea L. Rocanelli
                                      ____________________________________
                                      The Honorable Andrea L. Rocanelli




                                        22
