IN THE SUPREME COURT OF THE STATE OF DELAWARE
ANTHONY A. ABBATIELLO, § § Defendant Below, § No. 159, 2020 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID Nos. 1505015619A § 1505015619B Plaintiff Below, § Appellee. §
Submitted: October 16, 2020 Decided: December 22, 2020
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
ORDER
(1) The appellant, Anthony Abbatiello, has appealed the Superior Court’s
denial of his first motion for postconviction relief under Superior Court Criminal
Rule 61 and his motions to compel and to appoint an expert. After careful
consideration of the parties’ briefs and the record, we affirm the Superior Court’s
judgment.
(2) During a three-day jury trial, the State presented evidence that, on May
9, 2015, an intruder entered a motel room occupied by Carla Weston, pointed a gun
at her, and demanded money. Weston complied and, after also taking Weston’s
purse and cell phones, the intruder fled. Weston then ran out of the room, yelling to
a nearby crowd that she had been robbed. (3) As Weston and others pursued the robber, he turned back and fired three
shots in their direction; the nearest pursuer testified that he felt one of the bullets
whiz by his head. The robber then got into a black Mercedes sport utility vehicle,
which was driven by another person, and left the scene. Weston reported that the
vehicle had a Delaware license plate number of PC19805. Weston also provided a
description of the robber and his clothing that was consistent with a motel
surveillance video, which captured the robber fleeing Weston’s room with the purse
and the ensuing chase and shooting in the parking lot.
(4) Delaware State Police investigators determined that a Delaware license
plate number of PC198056—nearly identical to the number provided by Weston—
had been issued to a 2011 black Mercedes sport utility vehicle. The investigators
later determined that a man named Bernard Bryant was stopped for a speeding
violation while driving that vehicle about one-and-a-half hours after Weston was
robbed. Cell phone records showed that there was attempted contact between cell
phones associated with Abbatiello and Bryant on the night before and the morning
of the robbery—the State pointed to this information to argue that Abbatiello and
Bryant knew each other. The State also called an expert witness to testify that
Abbatiello’s cell phone pinged a cell tower located in Delaware in the early morning
hours of the day of the robbery; on cross-examination, the expert testified that the
2 cell phone records did not contain any information that placed Abbatiello’s cell
phone near the motel that day.
(5) Based on Weston’s physical description of the robber and the
surveillance video, police created a photographic lineup, which included Abbatiello.
Police showed the lineup to Weston, who quickly identified Abbatiello as the man
who robbed her. Several days after the robbery, police went to Abbatiello’s
residence to conduct a search. Abbatiello was outside the residence; upon seeing the
officers, Abbatiello drove off in a car at a high rate of speed. A few minutes later, a
different police officer saw the car speed by and then crash into a shrub; by the time
the officer arrived at the crash scene, the driver had fled. Back at Abbatiello’s
residence, police collected articles of clothing that were consistent with the clothing
worn by the man who robbed Weston.
(6) Abbatiello was apprehended in Pennsylvania on August 17, 2015 and
arrested by Delaware State Police on August 24, 2015. At trial, an inmate that was
housed on the same prison pod as Abbatiello testified that Abbatiello admitted to
him that Abbatiello had robbed a woman at the motel. The podmate said that
Abbatiello also admitted to having a gun and firing it three times at a pursuing male
and that he planned to call alibi witnesses who would say that he was with them at
the time of the robbery. Abbatiello’s brother and another acquaintance testified that
3 Abbatiello was with them in Philadelphia on the day of the robbery. Abbatiello also
took the stand and testified that he was in Philadelphia on the day in question.
(7) On March 24, 2016, the jury found Abbatiello guilty of attempted first-
degree assault, as a lesser-included offense of attempted first-degree murder; home
invasion; first-degree robbery; four counts of possession of a firearm during the
commission of a felony; first-degree reckless endangering; and several traffic
offenses. Following the jury’s verdict, the Superior Court held a bench trial on
charges of possession of a firearm by a person prohibited and possession of
ammunition by a person prohibited and found Abbatiello guilty of both charges.
After a presentence investigation, the Superior Court sentenced Abbatiello to a total
of approximately fifty-three years of Level V incarceration, suspended after forty-
six years and six months for decreasing levels of probation. This Court affirmed on
direct appeal.1
(8) Abbatiello then filed a pro se motion for postconviction relief. The
Superior Court granted Abbatiello’s motion for appointment of postconviction
counsel, and the Office of Conflict Counsel appointed counsel to represent him.
Postconviction counsel later withdrew, based on Abbatiello’s desire to decline
representation and to proceed pro se.
1 Abbatiello v. State, 2017 WL 3725063 (Del. Aug. 29, 2017).
4 (9) After expanding the record with briefing and an affidavit from trial
counsel, the Superior Court denied Abbatiello’s motion for postconviction relief.
The Superior Court also denied a motion to compel and a motion for appointment of
an expert that Abbatiello had filed while the motion for postconviction relief was
pending. Abbatiello now appeals to this Court.
(10) On appeal, Abbatiello argues that the State engaged in prosecutorial
misconduct by presenting false expert testimony regarding the cell phone records;
suppressing the cell phone records of Abbatiello’s girlfriend and objecting to the
admission of those records on the basis that the records that defense counsel tried to
use at trial were not authenticated, when the State purportedly possessed a certified
copy of the records; suppressing the New Jersey criminal history of Abbatiello’s
podmate and knowingly presenting the purportedly false testimony of Abbatiello’s
podmate regarding his criminal history; and presenting false testimony regarding the
circumstances of Weston’s statement to police that the person who robbed her had
tattoos on his arms. He also asserts multiple claims of ineffective assistance of
counsel. He argues that (i) trial and appellate counsel provided ineffective assistance
relating to the cell phone records; (ii) trial counsel provided ineffective assistance in
connection with his handling of the testimony of Abbatiello’s podmate and the
potential alibi witnesses; (iii) trial counsel provided ineffective assistance by failing
to interview Bryant, the alleged driver of the vehicle in which the robber left the
5 scene of the crime; (iv) trial and appellate counsel provided ineffective assistance
relating to evidence concerning the circumstances of Weston’s statement to police
that the person who robbed her had tattoos on his arms; (v) trial counsel provided
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
ANTHONY A. ABBATIELLO, § § Defendant Below, § No. 159, 2020 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID Nos. 1505015619A § 1505015619B Plaintiff Below, § Appellee. §
Submitted: October 16, 2020 Decided: December 22, 2020
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
ORDER
(1) The appellant, Anthony Abbatiello, has appealed the Superior Court’s
denial of his first motion for postconviction relief under Superior Court Criminal
Rule 61 and his motions to compel and to appoint an expert. After careful
consideration of the parties’ briefs and the record, we affirm the Superior Court’s
judgment.
(2) During a three-day jury trial, the State presented evidence that, on May
9, 2015, an intruder entered a motel room occupied by Carla Weston, pointed a gun
at her, and demanded money. Weston complied and, after also taking Weston’s
purse and cell phones, the intruder fled. Weston then ran out of the room, yelling to
a nearby crowd that she had been robbed. (3) As Weston and others pursued the robber, he turned back and fired three
shots in their direction; the nearest pursuer testified that he felt one of the bullets
whiz by his head. The robber then got into a black Mercedes sport utility vehicle,
which was driven by another person, and left the scene. Weston reported that the
vehicle had a Delaware license plate number of PC19805. Weston also provided a
description of the robber and his clothing that was consistent with a motel
surveillance video, which captured the robber fleeing Weston’s room with the purse
and the ensuing chase and shooting in the parking lot.
(4) Delaware State Police investigators determined that a Delaware license
plate number of PC198056—nearly identical to the number provided by Weston—
had been issued to a 2011 black Mercedes sport utility vehicle. The investigators
later determined that a man named Bernard Bryant was stopped for a speeding
violation while driving that vehicle about one-and-a-half hours after Weston was
robbed. Cell phone records showed that there was attempted contact between cell
phones associated with Abbatiello and Bryant on the night before and the morning
of the robbery—the State pointed to this information to argue that Abbatiello and
Bryant knew each other. The State also called an expert witness to testify that
Abbatiello’s cell phone pinged a cell tower located in Delaware in the early morning
hours of the day of the robbery; on cross-examination, the expert testified that the
2 cell phone records did not contain any information that placed Abbatiello’s cell
phone near the motel that day.
(5) Based on Weston’s physical description of the robber and the
surveillance video, police created a photographic lineup, which included Abbatiello.
Police showed the lineup to Weston, who quickly identified Abbatiello as the man
who robbed her. Several days after the robbery, police went to Abbatiello’s
residence to conduct a search. Abbatiello was outside the residence; upon seeing the
officers, Abbatiello drove off in a car at a high rate of speed. A few minutes later, a
different police officer saw the car speed by and then crash into a shrub; by the time
the officer arrived at the crash scene, the driver had fled. Back at Abbatiello’s
residence, police collected articles of clothing that were consistent with the clothing
worn by the man who robbed Weston.
(6) Abbatiello was apprehended in Pennsylvania on August 17, 2015 and
arrested by Delaware State Police on August 24, 2015. At trial, an inmate that was
housed on the same prison pod as Abbatiello testified that Abbatiello admitted to
him that Abbatiello had robbed a woman at the motel. The podmate said that
Abbatiello also admitted to having a gun and firing it three times at a pursuing male
and that he planned to call alibi witnesses who would say that he was with them at
the time of the robbery. Abbatiello’s brother and another acquaintance testified that
3 Abbatiello was with them in Philadelphia on the day of the robbery. Abbatiello also
took the stand and testified that he was in Philadelphia on the day in question.
(7) On March 24, 2016, the jury found Abbatiello guilty of attempted first-
degree assault, as a lesser-included offense of attempted first-degree murder; home
invasion; first-degree robbery; four counts of possession of a firearm during the
commission of a felony; first-degree reckless endangering; and several traffic
offenses. Following the jury’s verdict, the Superior Court held a bench trial on
charges of possession of a firearm by a person prohibited and possession of
ammunition by a person prohibited and found Abbatiello guilty of both charges.
After a presentence investigation, the Superior Court sentenced Abbatiello to a total
of approximately fifty-three years of Level V incarceration, suspended after forty-
six years and six months for decreasing levels of probation. This Court affirmed on
direct appeal.1
(8) Abbatiello then filed a pro se motion for postconviction relief. The
Superior Court granted Abbatiello’s motion for appointment of postconviction
counsel, and the Office of Conflict Counsel appointed counsel to represent him.
Postconviction counsel later withdrew, based on Abbatiello’s desire to decline
representation and to proceed pro se.
1 Abbatiello v. State, 2017 WL 3725063 (Del. Aug. 29, 2017).
4 (9) After expanding the record with briefing and an affidavit from trial
counsel, the Superior Court denied Abbatiello’s motion for postconviction relief.
The Superior Court also denied a motion to compel and a motion for appointment of
an expert that Abbatiello had filed while the motion for postconviction relief was
pending. Abbatiello now appeals to this Court.
(10) On appeal, Abbatiello argues that the State engaged in prosecutorial
misconduct by presenting false expert testimony regarding the cell phone records;
suppressing the cell phone records of Abbatiello’s girlfriend and objecting to the
admission of those records on the basis that the records that defense counsel tried to
use at trial were not authenticated, when the State purportedly possessed a certified
copy of the records; suppressing the New Jersey criminal history of Abbatiello’s
podmate and knowingly presenting the purportedly false testimony of Abbatiello’s
podmate regarding his criminal history; and presenting false testimony regarding the
circumstances of Weston’s statement to police that the person who robbed her had
tattoos on his arms. He also asserts multiple claims of ineffective assistance of
counsel. He argues that (i) trial and appellate counsel provided ineffective assistance
relating to the cell phone records; (ii) trial counsel provided ineffective assistance in
connection with his handling of the testimony of Abbatiello’s podmate and the
potential alibi witnesses; (iii) trial counsel provided ineffective assistance by failing
to interview Bryant, the alleged driver of the vehicle in which the robber left the
5 scene of the crime; (iv) trial and appellate counsel provided ineffective assistance
relating to evidence concerning the circumstances of Weston’s statement to police
that the person who robbed her had tattoos on his arms; (v) trial counsel provided
ineffective assistance by failing to investigate and elicit testimony regarding
Weston’s alleged illegal activities; (vi) trial counsel provided ineffective assistance
by producing to the prosecution a defense investigator’s memoranda regarding
conversations with Abbatiello’s alibi witnesses; and (vii) trial counsel inadequately
cross-examined two police officers regarding the traffic offenses. Abbatiello also
contends that his conviction should be reversed based on cumulative error and that
the Superior Court erred by denying his motion to compel the State or the cell phone
provider to produce an “accurate set” of his cell phone records.
(11) This Court reviews the Superior Court’s denial of a motion for
postconviction relief for abuse of discretion.2 We review legal or constitutional
questions, including claims of ineffective assistance of counsel, de novo.3 The Court
considers the procedural requirements of Rule 61 before addressing any substantive
issues.4
(12) As described above, Abbatiello frames several of his arguments—
including arguments relating to the cell phone records, the criminal history of his
2 Ploof v. State, 75 A.3d 811, 820 (Del. 2013). 3 Id. 4 Bradley v. State, 135 A.3d 748, 756-57 (Del. 2016).
6 podmate, and Weston’s identification of the robber as having tattoos—as claims of
prosecutorial misconduct. The Superior Court held that these claims are
procedurally barred under Superior Court Criminal Rule 61(i) because they were
either previously adjudicated or were not raised during trial or on direct appeal.5 We
agree with the Superior Court that the claims that Abbatiello has asserted, other than
his claims of ineffective assistance of counsel, are procedurally barred. Those claims
challenge the veracity, weight, and implications of testimony and other evidence that
was presented at trial. Abbatiello, with the assistance of counsel, could have raised
those claims in the proceedings leading to his conviction, and he has not overcome
the procedural bars by demonstrating that new evidence exists that creates a strong
inference that he is actually innocent, nor has he pleaded a new rule of constitutional
law that is retroactively applicable to his case.6 Specifically, his assertions about his
and his girlfriend’s cell phone records, his podmate’s New Jersey criminal history,
and the circumstances of Weston’s statements about the robber’s tattoos neither rely
on new evidence nor create a strong inference that Abbatiello is actually innocent.
5 State v. Abbatiello, 2020 WL 1847477, at *3 (Del. Super. Ct. Apr. 8, 2020). See DEL. SUPER. CT. CRIM. R. 61(i) (setting forth procedural bars to postconviction relief). 6 See DEL. SUPER. CT. CRIM. R. 61(d)(2)(i), (ii); id. R. 61(i)(5).
7 (13) As the Superior Court correctly determined, Abbatiello’s claims of
ineffective assistance of counsel are not procedurally barred.7 In order to prevail on
a claim of ineffective assistance of counsel, a defendant must demonstrate that (i)
his defense counsel’s representation fell below an objective standard of
reasonableness, and (ii) there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.8
Although not insurmountable, there is a strong presumption that counsel’s
representation was professionally reasonable.9 A defendant must also make concrete
allegations of actual prejudice to substantiate a claim of ineffective assistance of
counsel.10 The same Strickland framework applies when evaluating a claim that
appellate counsel provided ineffective assistance.11
(14) Abbatiello asserts several ineffective-assistance claims relating to the
cell phone evidence. He argues that his trial counsel provided ineffective assistance
by failing to investigate or consult an expert regarding purported discrepancies
between Abbatiello’s cell phone records and those of his girlfriend, obtain an
admissible copy of Abbatiello’s girlfriend’s cell phone records, and effectively
7 See Green v. State, 238 A.3d 160, 175 (Del. 2020) (“[I]neffective-assistance claims are not subject to Rule 61(i)(3)’s bar because they cannot be asserted in the proceedings leading to the judgement of conviction under the Superior Court’s rules and this Court’s precedent.”). 8 Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 9 Albury v. State, 551 A.2d 53, 59 (Del. 1988). 10 Bradley v. State, 135 A.3d 748, 760 (Del. 2016). 11 Neal v. State, 80 A.3d 935, 946 (Del. 2013).
8 impeach the State’s expert. Pointing to the fact that his girlfriend’s cell phone
records show calls between her phone and his phone on the day of the robbery,
Abbatiello contends that his counsel somehow could have used the records to
demonstrate that Abbatiello was not in Delaware on the day of the robbery and to
otherwise impeach the testimony of the State’s expert.
(15) Abbatiello has failed to show that there is a reasonable probability that
but for counsel’s alleged errors, the result of the proceeding would have been
different.12 Despite his continued assertion that the copies of his cell phone records
that the State used at trial were incomplete, Abbatiello has not produced copies of
his own cell phone records that show any missing entries. And, as the Superior Court
concluded, the use of his girlfriend’s records at trial would have shown, at most, that
she attempted to call him during the day. He has not shown how that would have
made the jury less likely to decide that he committed the robbery. Abbatiello
therefore has not shown a reasonable probability that the result of the proceeding
would have been different, and his claims that his trial counsel provided ineffective
assistance relating to the cell phone records and the cell phone expert fail. To the
extent that he asserts that his appellate counsel provided ineffective assistance with
respect to these issues, that claim similarly fails.
12 Strickland, 466 U.S. at 694.
9 (16) Next, Abbatiello argues that his trial counsel provided ineffective
assistance relating to the testimony of Abbatiello’s podmate and potential alibi
witnesses, including by warning the potential alibi witnesses that the State intended
to present evidence that the alibi defense was manufactured and that they therefore
might face perjury charges and by failing to compel them to testify anyway. We
conclude that Abbatiello has not demonstrated prejudice with respect to this claim.
On direct appeal, Abbatiello argued that the State’s warning about potential perjury
charges, which defense counsel conveyed to the witnesses, constituted prosecutorial
misconduct. This Court held that the warnings did not substantially interfere with
the witnesses’ determination whether to testify or support an inference that the
witnesses were coerced into silence.13 Abbatiello’s attempt to frame this as a claim
of ineffective assistance of counsel therefore fails to demonstrate prejudice.
Moreover, despite the warnings, two witnesses and Abbatiello testified that
Abbatiello was in Philadelphia on the day of the robbery, and additional testimony
would have been cumulative.14
(17) Abbatiello also contends that his trial counsel provided ineffective
assistance by failing to interview Bryant, the driver of the vehicle in which the robber
13 Abbatiello, 2017 WL 3725063, at *2. 14 See Outten v. State, 720 A.2d 547, 553 (Del. 1998) (“To be reasonably competent, counsel need not present cumulative evidence.” (internal quotation and alteration omitted)); Marvel v. State, 1994 WL 19022 (Del. Jan. 18, 1994) (“The failure to ask one more cumulative witness about the conspiracy allegation is of no constitutional import.”).
10 left the scene of the crime, or to call him as a witness. As the Superior Court
determined, Abbatiello participated in the decision not to contact Bryant, informing
counsel that he did not think Bryant would cooperate. Abbatiello cannot now shift
the blame to counsel, particularly where he has not shown that Bryant would have
provided any evidence that was favorable to the defense.15
(18) Abbatiello also argues that his trial and appellate counsel provided
ineffective assistance relating to evidence concerning the circumstances of Weston’s
statement to police that the person who robbed her had tattoos on his arms. After
reviewing the record, we agree with the Superior Court’s conclusion that trial
counsel’s cross-examination of Weston and the detective regarding Weston’s
description of the robber was objectively reasonable. The cross-examination
identified inconsistencies between Weston’s statements to the police and her
testimony at trial concerning the description of the robber; it also elicited testimony
that she was uncertain about the tattoos and had not mentioned any tattoos when
speaking to police on the day of the robbery. Abbatiello’s claims of ineffective
assistance fail with respect to this issue.
(19) Next, Abbatiello contends that trial counsel provided ineffective
assistance by failing to investigate and elicit testimony regarding Weston’s alleged
15 See Tice v. State, 1995 WL 715854, at *3 (Del. Nov. 13, 1995) (“Moreover, Tice does not even allege what testimony Tharp could have provided that would have been helpful to his defense. Thus, Tice has failed to show any prejudice.”).
11 illegal activities, which he asserts would suggest that someone else had a motive to
rob her. The record reflects that trial counsel declined to pursue this strategy because
he did not believe it would result in a favorable outcome for Abbatiello at trial.
Abbatiello has not overcome the presumptions that counsel’s performance was
professionally reasonable and that it was consistent with “sound trial strategy.”16
Moreover, as the Superior Court observed when denying postconviction relief, the
jury was presented with some testimony that Weston was a drug dealer and,
“[f]undamentally, however, the issue of why someone robbed Weston was not
material at trial; the issue at trial was who robbed her.”17 We conclude that counsel’s
performance with respect to this issue was not objectively unreasonable, nor has
Abbatiello demonstrated prejudice.
(20) Abbatiello argues that trial counsel provided ineffective assistance by
producing to the prosecution memoranda prepared by a defense investigator
regarding his conversations with Abbatiello’s brother and acquaintance, who
testified at trial as alibi witnesses. The Superior Court found that trial counsel
reasonably determined that the memoranda constituted witness statements that were
subject to production under Superior Court Criminal Rule 26.2.18 The Superior
16 Strickland, 466 U.S. at 689. 17 Abbatiello, 2020 WL 1847477, at *7. 18 See DEL. SUPER. CT. CRIM. R. 26.2(a) (“After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney general or the defendant and the defendant’s attorney, as the case may be, to produce, for
12 Court also concluded that Abbatiello had “not shown to a reasonable degree of
probability that, but for the production of these witness statements, the jury would
have returned a different verdict” because the State impeached the alibi witnesses’
credibility by other means than just the memoranda and “the credibility of those
witnesses also was imperiled by [the podmate’s] testimony, Weston’s identification,
the physical evidence, and the cell phone records.”19 We agree that Abbatiello has
not shown prejudice regarding the production of the witness statements. We
therefore need not reach the question of whether defense counsel reasonably
determined that the memoranda were subject to production under Rule 26.2.20
(21) Abbatiello argues that trial counsel inadequately cross-examined two
police officers regarding the traffic offenses; he contends that this purported
ineffective representation “forced” him to take the stand to accept responsibility for
those charges so that the defense would not lose credibility with the jury. The
the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.”); id. R. 26.2(f) (defining a witness statement as “(1) A written statement made by the witness that is signed or otherwise adopted or approved by the witness; (2) A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or (3) A statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury.”). 19 Abbatiello, 2020 WL 1847477, at *8. 20 See Richardson v. State, 3 A.3d 233, 240-41 (Del. 2010) (“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.” (internal quotation omitted)); Stone v. State, 690 A.2d 924, 926 (Del. 1996) (“Moreover, even assuming that Stone’s trial counsel was ineffective for failing to interview and present certain witnesses at trial . . ., Stone fails to demonstrate how the presentation of his alleged alibi witnesses . . . would have affected the outcome of his trial.”).
13 evidence that Abbatiello committed the traffic offenses was overwhelming. Thus,
the Court finds no prejudice to Abbatiello with respect to those charges. Moreover,
both counsel and the trial judge discussed with Abbatiello the implications and risks
of testifying and that the decision to testify was his and his alone. Abbatiello also
represented to the court that no one forced him to testify and that he was making that
decision of his own free will; additionally, by the time he took the stand, the court
had already ruled that the record supported instructing the jury regarding the
inferences that could be drawn from the defendant’s flight. Abbatiello’s claim that
trial counsel’s actions somehow forced him to testify or resulted in a flight
instruction is therefore without merit.
(22) Abbatiello’s claim that he is entitled to relief because of cumulative
error also is without merit. “Cumulative error must derive from multiple errors that
caused ‘actual prejudice.’”21 Because the Court has found no errors that caused
actual prejudice, his claim of cumulative error also fails.
(23) Finally, we conclude that the Superior Court did not err by denying
Abbatiello’s motions to compel copies of his cell phone records or to appoint an
expert. The Superior Court determined that the State has produced the records that
it has, and Abbatiello has not provided any nonspeculative information that suggests
21 Michaels v. State, 970 A.2d 223, 231 (Del. 2009).
14 that his cell phone records that were used at trial were incomplete. In the absence of
such information, he also has not demonstrated how an expert would be helpful. 22
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr. Justice
22 Cf. Taylor v. State, 32 A.3d 374, 391 (Del. 2011) (rejecting claim that Superior Court erred by declining to compel a witness to testify at a postconviction hearing because defendant did not show how it would help his case).