IN THE SUPREME COURT OF THE STATE OF DELAWARE
ANTHONY E. MORRIS, § § No. 394, 2018 Defendant Below, § Appellant, § Court Below: Superior Court of § the State of Delaware v. § § Cr. ID Nos. 1702013025 and STATE OF DELAWARE, § 1702012586 § Plaintiff Below, § Appellee. §
Submitted: March 27, 2019 Decided: May 13, 2019
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
On this 13th day of May 2019, upon consideration of the parties’ briefs and the
record on appeal, it appears that:
(1) The appellant, Anthony E. Morris, was found guilty by a Superior Court
jury of several crimes that occurred during two related incidents on February 18,
2017—one in the morning and the other later in the day following his release on bail
from the first incident. The same jury also found him guilty of violating the terms
of his bond and engaging in witness intimidation while he was in in jail awaiting
trial for the February 18 incidents. On appeal, Morris asserts five claims. The
first pertains to his conviction for the offense of home invasion. The home- invasion charge arose from the second February 18 incident. He contends the
Superior Court erred by not setting aside his conviction for that offense because the
jury was unable to agree on a verdict on a predicate offense of rape in the first degree.
Second, he contends the Superior Court erred in failing to hold a proof-positive
hearing under 11 Del. C. § 2116 in connection with his bail on the first February 18
incident after he was arrested for the second February 18 incident. Third, he
contends the Superior Court erred in not suppressing recordings of phone
conversations he had while in prison awaiting trial because the subpoena used to
obtain the recordings was overly broad and invalid under the United States and
Delaware Constitutions. Fourth, he contends the Superior Court erred in admitting
these recordings into evidence because the State did not lay a proper foundation for
their admission. Finally, he contends the Superior Court erred in denying his
motion for a mistrial because delayed disclosure of Brady1 material prejudiced his
defense. We reject all of Morris’s contentions and affirm.
(2) On the morning of February 18, 2017, Seaford Police Officer Kyle
Jones reported to a motel to investigate a domestic incident occurring in the parking
lot. When Officer Jones drove to the motel’s rear parking lot he observed Morris
standing near a vehicle. Once Officer Jones pulled up behind the rear of the
vehicle, he observed Morris standing between the open driver’s door and the vehicle
1 Brady v. Maryland, 373 U.S. 83 (1963). 2 and Jennifer Middleton in the driver’s seat with her legs pointed out. According to
Officer Jones, “Morris appeared to be standing in between her legs so that she
couldn’t get out.”2 As Officer Jones approached, Morris looked at him and then
“looked back at Ms. Middleton and struck her with an open hand,” hitting her “[i]n
her face.”3 Jones immediately pulled Morris off Middleton and placed him under
arrest.
(3) Morris was arraigned via a video phone, and the judge imposed
unsecured bail with a condition that Morris have no contact with Middleton. At
12:14 p.m., after the no-contact order was explained to Morris and he indicated he
understood it, Morris was released from the Seaford Police Department. Officer
Jones called Middleton, who had returned to her apartment in Laurel, and informed
her of Morris’s release and the no-contact order.
(4) The second incident occurred later that same day, shortly after Morris
was released. Morris went to Middleton’s apartment and began kicking her front
door and demanding to be let inside. Middleton did not want him in her apartment,
but she also did not want him to kick in her door. Concerned with the noise and
afraid someone might report the incident to her landlord, she opened the door to try
to “diffuse the situation.”4
2 App. to Appellee’s Answering Br. at B34. 3 Id. 4 App. to Appellant’s Opening Br. at A93. 3 (5) Once inside her apartment, Morris accused her of getting him in trouble
and started punching her. Middleton “tried to run upstairs so [she] could lock the
door,” but Morris grabbed her and threw her on the couch. 5 According to
Middleton, he then took off her underwear and pulled down his pants; she repeatedly
told him no and asked him to stop; she tried to get up, but he was on top of her
holding her down; and he then began having sexual intercourse with her, while she
continued telling him to stop. When he finished, she got up and ran upstairs to the
bathroom, locked the door, and took a bath. Morris then left her apartment.
(6) Following her bath, Middleton called the police to report the incident.
Police officers subsequently arrived at her apartment, and Middleton was taken to
the hospital. At the hospital, a nurse conducted a forensic examination. As part
of the examination, the nurse photographed Middleton’s injuries and conducted a
vaginal examination, during which she observed “a copious amount of white fluid
located in her vaginal wall” that was “consist [sic] with semen.”6 According to the
medical records, Middleton was examined at 3:15 p.m. Later that day, at
approximately 7:45 p.m., after Middleton was released from the hospital, Detective
Christopher Story, the chief investigating officer, went to Middleton’s apartment to
take photographs of the scene.
5 Id. at A100. 6 App. to Appellee’s Answering Br. at B65. 4 (7) For the events that occurred on February 18, Morris was indicted on
charges of home invasion, rape in the first degree, strangulation, assault in the second
degree, two counts of noncompliance with bond, assault in the third degree,
kidnapping in the first degree, misdemeanor theft, and misdemeanor criminal
mischief.
(8) Because at least one charge from each of the February 18 incidents was
a violent felony, 11 Del. C. § 2116 came into play. That section applies if a person
is arrested for a violent felony and released on bail and, while released, is arrested
for a second violent felony. It provides that the person’s bail on the original charge
“shall be temporarily revoked by any court” becoming aware that the person is
subject to § 2116.7 It further provides that the person “shall be brought before the
Superior Court.”8 If, after a hearing, the Superior Court finds that there is “proof
positive or presumption great” that the person committed the subsequent offense, the
court “shall” then revoke bail on the original offense.9 If that occurs, the court must
then set cash-only bail on the original offense in an amount at least twice as much
as the original bail.10
7 11 Del. C. § 2116(c). 8 Id. § 2116(b). 9 Id. 10 Id. § 2116(d). 5 (9) A proof-positive hearing was scheduled for Morris to be held on March
16, 2017. On that day Morris appeared with counsel for the hearing. The State
also appeared. Rather than proceeding directly with the proof-positive hearing, the
parties and the court discussed the fact that some of the indicted charges arising out
of the first February 18 incident differed from the charges that Morris had been
arrested for and that bail had not yet been set on these different charges. The
Superior Court then proceeded to set bail on those charges for which bail needed to
be set. At the conclusion of that process, Morris was subject to bail of $205,000,
cash only, for the charges that differed in the indictment and for the charges arising
out of the second February 18 incident. The State then indicated its satisfaction
with bail and waived the proof-positive hearing. Morris had subpoenaed
Middleton to appear for the hearing with the intent of calling her as a witness and
examining her about the incidents in question. His counsel insisted that the hearing
go forward. Since the State was content with bail without a § 2116 hearing,
however, the Court decided that there was no need for a hearing, and none was held.
Morris’s bail for the original charges was not increased.
(10) While at Sussex Correctional Institution (SCI) awaiting trial, Morris
made two calls to Middleton, indirectly through a third party, in violation of the no-
contact order. The State issued an Attorney General subpoena to SCI for “all phone
recordings for inmate Anthony Morris as well as any calls placed to [two specific
6 phone numbers] from February 18, 2017 thru present [May 1, 2017].” 11 SCI
produced all of Morris’s recorded phone conversations as requested. Morris,
arguing that the Attorney General subpoena was overbroad, moved to suppress the
recordings. The Superior Court denied his motion.
(11) Following a review of the recordings, Morris was re-indicted to add
four additional counts of noncompliance with bond, two counts of act of
intimidation, and one count of conspiracy in the second degree for the
communications he had with Middleton (and others) while he was in prison awaiting
trial.
(12) At trial, the State sought to introduce the recordings of the phone calls
Morris made while in prison that related to Morris’s efforts to get Middleton to drop
the charges. Sergeant Brian Hubbs, a facility investigator at SCI who handles the
subpoena processing for SCI’s inmate telephone system, testified as to the process
of logging inmates’ calls based on each inmate’s State Bureau of Investigation (SBI)
number and the process by which an inmate makes a call, explaining that the inmate
must first enter his unique SBI number and then verify his voice with the system
before placing a call.12 He testified that Morris’s call log, which was admitted into
evidence, was accurate and automatically generated by the computer based on
11 App. to Appellant’s Opening Br. at A63. 12 SCI houses an all-male population. 7 Morris’s SBI number and the requested date range. He further testified that the log
“is a que list file of a series of telephone calls that were burnt at the State’s request
under subpoena”13 and that he “provide[d] recordings of the calls to the State.”14
Middleton testified as to each recording to identify Morris as the caller. As
mentioned, two of the calls were to a third party who then added Middleton to the
call. Since she was a party to those two phone calls, she identified two of the
recordings as those two calls. Although her voice was not on the other recordings,
she was able to identify the speakers on four subsequent recordings as being Morris
and his friend Jeremiah Handy because she recognized their voices.
(13) Morris objected to the admission of these recordings. He argued that
there was not a proper foundation because the State had not shown that the
recordings had not been altered. The Superior Court overruled his objection
following a voir dire of Middleton. It found that her testimony, which established
that Morris was the originator of each call and that the other party to each call (other
than herself) was Handy, paired with Sergeant Hubbs’s testimony regarding the
prison phone system, was sufficient to support a finding that the recordings were
what the State claimed them to be and, therefore, admissible under Delaware Rule
of Evidence 901(a).
13 App. to Appellant’s Opening Br. at A134. 14 Id. at A137. 8 (14) During his testimony, Detective Story revealed for the first time, on
cross-examination, that he had spoken to two individuals who were standing outside,
across the courtyard from Middleton’s apartment when he went there to take pictures
the evening after the second February 18 incident. He asked them whether they
“heard or saw anything.”15 He testified that they told him they had not seen or
heard anything and that they said “[t]hey didn’t know nothing [sic],” although he
could not recall if he had specified a time frame when he asked whether they had
seen or heard anything. 16 He said that the response of the two individuals was
common practice and that “in the apartment complexes in Laurel, nobody talks to
the cops. So being in uniform, I asked, and nobody saw anything.”17 He did not
make a report of this contact or the names of the individuals.
(15) Following the detective’s testimony, Morris moved for a mistrial on the
grounds that the statements of the two individuals that they had not seen or heard
anything was undisclosed Brady material. The Superior Court denied this motion,
finding that Morris was able to make effective use of the evidence because it was
before the jury and counsel would be able to include it in Morris’s closing argument.
Then, citing Deberry v. State,18 Morris sought “an instruction that the jury has to
15 Id. at A157. 16 Id. at A157, A156-57. 17 Id. at A156. 18 457 A.2d 744 (Del. 1983). 9 accept that neighbors that were there didn’t hear anything or didn’t see anything.”19
The Superior Court denied the request.
(16) During his closing argument, Morris highlighted the fact that the two
individuals told Detective Story the evening of the second incident that they had not
seen or heard anything and that he failed to note this in his report: “They said, We
didn’t see anything, we didn’t hear anything. He characterized that—instead of
making a report of it and taking the people’s names, he characterized that as they
just don’t want to cooperate with the police. I won’t make a report of it. I won’t
do anything.”20
(17) At the conclusion of the trial, the jury failed to reach a verdict on the
charge of rape in the first degree, found Morris not guilty of strangulation, and found
him guilty of home invasion and the rest of the indicted charges.21
(18) Morris’s first claim on appeal is that the Superior Court erred in not
vacating, or setting aside, his conviction for home invasion. He argues that a
finding of guilt on the rape charge was a predicate to a finding of guilt on the home-
invasion charge. Since the jury was unable to reach a verdict on the rape charge,
he argues, an element of the home-invasion charge was not proved and the verdicts
19 App. to Appellant’s Opening Br. at A251. 20 App. to Appellee’s Answering Br. at B89. 21 The court had (following the close of the State’s case) acquitted Morris of kidnapping and reduced the charge of assault in the second degree to assault in the third degree. 10 were inconsistent. For these reasons, he argues, the conviction for home invasion
must be vacated. Whether a jury’s guilty verdict on the home-invasion charge is
inconsistent with its failure to reach a verdict on the rape charge is a question of law
subject to de novo review.22
(19) There are a number of elements to the crime of home invasion, but for
purposes of this appeal it is sufficient to state that a home invasion occurs when a
person enters or remains unlawfully in a dwelling with the intent to commit a violent
felony therein, and while in the dwelling commits or attempts to commit one of six
designated felonies.23 The indictment in Morris’s case charged him, in pertinent
part, with having entered or remained in Middleton’s apartment with the intent to
commit a violent felony therein, and when in the dwelling, “the defendant committed
or attempted to commit the felony of Rape.”24 Morris asserts that his conviction
for home invasion should have been vacated for two reasons. First, he contends
that it should have been vacated because the jury was unable to reach a verdict on
the predicate charge of rape and the State’s evidence at trial was insufficient to
support a conviction of attempted rape. Second, and alternatively, he contends that
22 Van Vilet v. State, 148 A.3d 257, 2016 WL 4978436, at *3 (Del. Sept. 16, 2016) (Table) (citing Priest v. State, 879 A.2d 575, 580 (Del. 2005) (en banc)). 23 11 Del. C. § 826A(a). 24 App. to Appellant’s Opening Br. at A77. 11 it should have been vacated because the jury instructions did not provide adequate
legal guidance as to the elements of an attempt.
(20) It should first be noted that a conviction for rape or attempted rape is
not an element of the offense of home invasion. The element of home invasion in
issue is the fact of the commission or attempted commission of rape. Both of
Morris’s arguments as to this issue fail for the same reason: the rule of jury lenity.
“Under the rule of jury lenity, this Court may uphold a conviction that is inconsistent
with another jury verdict if there is legally sufficient evidence to justify the
conviction.” 25 Here, the parties focus exclusively on attempted rape, but this
misses the point. Middleton testified that Morris actually raped her. Her
testimony was supported by the pictures of her injuries taken at the hospital and by
the nurse’s testimony that there was a fluid consistent with semen in her vagina.
Viewed in the light most favorable to the State, this evidence establishes that a
rational fact finder could have found Morris guilty beyond a reasonable doubt of
home invasion.26 Because this evidence is sufficient to sustain the conviction of
home invasion, any inconsistency between the guilty verdict on the charge of home
25 King v. State, 126 A.3d 631, 2015 WL 5168249, at *2 (Del. Aug. 26, 2015) (Table) (citing Tilden v. State, 513 A.2d 1302, 1306-07 (Del. 1986) (en banc)); see also United States v. Powell, 469 U.S. 57, 65-67 (1984). 26 See Tilden, 513 A.2d at 1307; see also Powell, 469 U.S. at 67 (“Sufficiency-of-the evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt. This review should be independent of the jury’s determination that evidence on another count was insufficient.” (citations omitted)). 12 invasion and the jury’s failure to agree on the charge of rape in the first degree is of
no avail to Morris, and there is no need to consider the sufficiency of the evidence
or the instructions as to attempted rape.
(21) Morris’s second argument is that the Superior Court erred in denying
his request that the court proceed with the proof-positive bail hearing despite the
State waiving its request that his bail for the first February 18 incident be revoked
and that bail at least twice the amount originally set be imposed for the original
charges. He contends that a proof-positive hearing was mandatory because the
statute, 11 Del. C. § 2116(b), provides that the defendant “shall be brought before
the Superior Court.” We review questions of statutory interpretation de novo.27
(22) The statute provides that “if after release [on the first offense] the
defendant is charged by arrest . . . with the commission of a subsequent offense, that
defendant shall be brought before the Superior Court.”28 It then provides, “If after
a hearing, the Superior Court finds proof positive or presumption great that the
defendant has committed [the] subsequent offense during such period of release . . .
the Court shall revoke” the defendant’s bail on the original offense29 and impose a
cash-only bail at least twice the amount of the bail originally set.30 Morris was
27 Pardo v. State, 160 A.3d 1136, 1142 (Del. 2017). 28 11 Del. C. § 2116(b). 29 Id. 30 Id. § 2116(d). 13 “brought before the Superior Court”31 on the day his proof-positive hearing was
scheduled. But once the court set bail for the charges alleged to have occurred after
the first February 18 incident and for the charges from the first incident that differed
in the indictment, the State was content with not seeking to have Morris’s bail
increased for the unchanged first-incident charges. This eliminated the need to
have the proof-positive hearing. Section 2116 does not create a right of discovery
for a defendant. The Superior Court did not err in deciding that the hearing was
not necessary.
(23) Morris’s third argument is that the Superior Court erred in not
suppressing the recordings of Morris’s prison phone calls. He contends that the
subpoena used to obtain the recordings violated his federal and state constitutional
rights because it required the production of materials that were not relevant to the
investigation and covered an unreasonable period of time. We review alleged
constitutional violations de novo.32
(24) “The Fourth Amendment to the United States Constitution requires that
a subpoena for the seizure of documents be reasonable.” 33 To be reasonable, a
subpoena must: (1) “specify the materials to be produced with reasonable
31 Id. § 2116(b). 32 Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010) (en banc). 33 Johnson v. State, 983 A.2d 904, 921 (Del. 2009) (en banc); see also Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 208-09 (1946). 14 particularity,” (2) “require the production only of materials relevant to the
investigation,” and (3) “not cover an unreasonable amount of time.”34
(25) Morris takes issue with the second and third requirements. He argues
that the subpoena required the production of nonrelevant material because it required
production of all of Morris’s phone recordings as opposed to just the two calls he
arranged with Middleton. He argues that the subpoena covered an unreasonable
period of time for essentially the same reason—“[t]he State ha[d] no reasonable basis
to believe that all of Mr. Morris’s conversations while he was in prison from
February 18, 2017 through May 1, 2017 somehow related to this singular alleged
contact of [sic] March 8, 2017.”35
(26) We find that the subpoena was reasonable. First, the subpoena did not
require the production of material that was not relevant to the investigation of
whether Morris violated the no-contact order or was engaged in witness intimidation.
There was evidence that Morris had attempted to intimidate Middleton by calls
through a third party to her, and in any event, these calls violated the no-contact
order. Because Morris could not contact Middleton directly (her phone number
was not on his permitted call list) and, therefore, could contact her only indirectly
through a third party, the State had a reasonable basis to suspect that he might have
34 Johnson, 983 A.2d at 921. 35 Appellant’s Opening Br. at 26. 15 tried to contact her at other times through different third parties (and thus different
phone numbers) and that he might have tried to convince someone to intimidate
Middleton in person, since he could not do so while in prison.36 In addition, the
time span covered by the subpoena was reasonable. It was reasonable to require
the production of all of the recordings of the phone calls Morris made during the
entirety of his pretrial incarceration to ascertain whether he had contact with
Middleton either directly or indirectly.37 Because the subpoena was reasonable,
Morris’s constitutional rights were not violated and the Superior Court did not err in
denying his motion to suppress.
(27) Morris’s fourth argument is that the Superior Court erred in admitting
into evidence the recordings of his prison phone calls because, he contends, there
was not a proper foundation. We review a trial court’s evidentiary rulings for abuse
of discretion. 38 “An abuse of discretion occurs when a court has exceeded the
bounds of reason in light of the circumstances, or so ignored recognized rules of law
or practice so as to produce injustice.”39
36 See Johnson, 983 A.2d at 921-22 (rejecting Johnson’s argument that the subpoena was overly broad because it required production of all the letters he wrote while in prison instead of just those he sent directly to the victim he was suspected of attempting to intimidate). 37 See id. at 922 (“It was reasonable to require the production of all letters that Johnson sent during the entirety of his incarceration pending trial in order to ascertain whether he had contact with Truitt [the victim and key witness] either directly or indirectly.”). 38 McNair v. State, 990 A.2d 398, 401 (Del. 2010). 39 Id. 16 (28) Delaware Rule of Evidence 901 governs the authentication of evidence.
Under that rule, “the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.”40 “The burden of authentication is
easily met. The State must establish a rational basis from which the jury could
conclude that the evidence is connected with the defendant.”41
(29) The Superior Court acted within its discretion when it determined that
the State had made a showing sufficient to support a finding that the recordings were
the actual recordings of Morris’s phone calls. The court considered Sergeant
Hubbs’s testimony explaining how the telephone system functions, including its
need to verify the inmate’s voice before placing a call, how he obtained the records
and recordings using Morris’s SBI number, and how the call log was connected to
the recordings he gave to the State. The court also considered Middleton’s
testimony identifying Morris’s voice at the beginning of each recording during the
voice-verification process and identifying the other person’s voice as Morris’s
friend.
(30) Morris primarily argues on appeal (as he did at the trial court) that there
was no positive testimony as to whether the recordings had been altered. He
contends that Sergeant Hubbs did not testify as to whether the recordings had been
40 D.R.E. 901(a). 41 Cabrera v. State, 840 A.2d 1256, 1264-65 (Del. 2004) (en banc). 17 altered in any way and that Middleton did not (and could not) know whether the
recordings of the beginning portions of the two phone calls involving her had been
altered (those portions before she was merged in by Morris’s friend) or whether the
other four recordings, which did not involve her, had been altered. He fails,
however, to point to anything that suggests the recordings were altered. Although
the State had the burden of establishing authenticity and admissibility under Rule
901, absent some indication that the recordings had been impermissibly altered,42
the State was not required to present affirmative evidence that they were unaltered.
Authentication of an item offered into evidence does not require the offering party
to prove a negative. Accordingly, the Superior Court did not abuse its discretion
in finding that the State had produced evidence sufficient to support a finding that
these recordings were the actual recordings of Morris’s prison phone calls.
(31) Morris’s final argument is that the Superior Court erred in denying his
motion for a mistrial on the grounds that the State failed to disclose Brady 43
evidence that materially prejudiced his defense. This Court reviews claims of
Brady violations de novo.44 When delayed disclosure of Brady information occurs,
it must be determined “whether the disclosure of the cumulative exculpatory and
42 There were some redactions from the recordings, but these redactions were done either with Morris’s consent or at his direction. 43 Brady, 373 U.S. 83. 44 Robinson v. State, 149 A.3d 518, 2016 WL 5957289, at *2 (Del. Oct. 13, 2016) (Table). 18 impeachment evidence withheld by the State creates a reasonable probability of a
different outcome.”45 As part of this analysis, we consider whether the delayed
disclosure precluded effective use of the information at trial.46
(32) Morris contends that he was unable to effectively use the fact that the
two individuals told Detective Story the evening of the second incident that they had
not seen or heard anything and that “[t]hey didn’t know nothing [sic].”47 He argues
that this delayed disclosure prejudiced his defense because it impeached Middleton’s
testimony that Morris was banging on her door and yelling loudly. He argues that
he was further prejudiced because Detective Story did not just reiterate what these
people said but also characterized their remarks by saying that “in the apartment
complexes in Laurel, nobody talks to the cops. So being in uniform, I asked, and
nobody saw anything.”48 For these reasons, Morris contends that he “was at least
entitled to a Deberry instruction that there were two witnesses that were present but
did not hear or see Morris at Middleton’s apartment, nor hear Morris yelling and
screaming or see him kicking her door on February 18, 2017.”49
(33) The State concedes that there was a delayed disclosure of Brady
material but argues that because Morris was able to—and indeed did—make
45 Wright v. State, 91 A.3d 972, 993 (Del. 2014). 46 White v. State, 816 A.2d 776, 778 (Del. 2003). 47 App. to Appellant’s Opening Br. at A157. 48 Id. at A156. 49 Appellant’s Opening Br. at 34, 33-34 (citing Deberry, 457 A.2d at 751). 19 effective use of the information, he suffered no prejudice and reversal is
inappropriate.
(34) It is not clear that this information actually impeached Middleton’s
testimony. Detective Story questioned these individuals more than four hours after
the incident had occurred, and there was no indication that these individuals were
present at the time the incident occurred. Moreover, the Brady material did not
involve possible testimony that was likely, if given, to create a reasonable probability
of a different outcome. For starters, the two witnesses would have had to have been
at the apartment complex at the exact time of the relatively brief incident at the door
in the early afternoon. At best, if they were, they would have said that they did not
hear or observe anything unusual. But, of course, the victim herself said she let
Morris in because she did not want him to continue making a racket that would
disturb neighbors and lead to a complaint to her landlord. Not only that, there was
photographic evidence of the victim’s door that depict muddy footprints, 50 which
would be an oddment if Morris was not kicking it as the victim said. And there was
evidence that Morris obsessively called the victim in violation of a no-contact order
during the period before the alleged crimes at her apartment. 51 Finally, the
objective evidence of physical force used against the victim—which included
50 See App. to Appellant’s Opening Br. at A141–42. 51 See App. to Appellee’s Answering Br. at B74. 20 photographs of bruises on her arms and face, a swollen eye, and swollen lips 52—is
very strong. For all these reasons, there is not a reasonable probability that the
result would have been different had the officer disclosed this information in a timely
manner.53 The Superior Court did not err in denying Morris’s motion for a mistrial
or in refusing to give a Deberry instruction. 54 Accordingly, reversal is not
warranted.55
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr. Justice
52 See id. at B58–64. 53 We are reluctant to conclude that the defense was able to make effective use of the fact that the two witnesses say they saw or heard nothing for a simple reason. Detective Story injected his own opinion that the witnesses said that, not because it was true, but because people in that neighborhood will not talk to the police. This opinion testimony was arguably not proper, but in any event, it makes it difficult for us to conclude that the defense could make any effective use of the witnesses’ ignorance of any loud incident at the complex that day 54 See Robinson, 2016 WL 5957289, at *3 (finding that the delayed disclosure of a prior inconsistent statement was not a Brady violation requiring reversal because the defendant had made effective use of the statement by cross-examining the witness about it and relying on it during his closing argument). 55 See White, 816 A.2d at 778 (“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.” (internal quotation marks omitted)). 21