State of Delaware v. Luis Reyes

• Court: Superior Court of Delaware
• Decided: January 27, 2016
• Docket: 9904019329
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

) STATE OF DELAWARE, ) ) v. ) Cr. I.D. No. 9904019329 ) LUIS REYES, ) ) Defendant. )

Final Submission: November 24, 2015 Decided: January 27, 2016

Upon Defendant’s Motion for Postconviction Relief GRANTED

MEMORANDUM OPINION

Patrick J. Collins, Esquire, Collins & Associates, Wilmington, DE, Attorney for Defendant.

Elizabeth R. McFarlan, Esquire, and Maria T. Knoll, Esquire, Department of Justice, Wilmington, DE, Attorneys for the State of Delaware.

Rocanelli, J. I. INTRODUCTION AND PROCEDURAL HISTORY

The bodies of Brandon Saunders and Vaughn Rowe were discovered in a

wooded area of Rockford Park in Wilmington, Delaware, on January 21, 1996.

Nearly four years later, on December 6, 1999, Luis Reyes (“Reyes”) and Luis

Cabrera (“Cabrera”) were indicted as co-defendants for the murders of Saunders

and Rowe (“Rockford Park Murders”).1 The State sought the death penalty for

both Reyes and Cabrera in connection with the Rockford Park Murders. Counsel

was appointed for both defendants.2 The trials of Cabrera and Reyes were severed

by the Trial Court.3

A. Reyes Rockford Park Trial and Direct Appeal

Cabrera was tried first and convicted of all counts by a jury, which

recommended by a vote of 11–1 that the death sentence be imposed. Reyes’ trial

for the Rockford Park Murders took place thereafter (“Reyes Rockford Park

Trial”): jury selection started on September 18, 2001; the guilt phase began on

October 2, 2001; jury deliberations began on October 18, 2001; and, on October

19, 2001, the jury returned a verdict finding Reyes guilty of two counts of First

1 At the time they were indicted for the murders of Rowe and Saunders, Reyes and Cabrera were serving sentences imposed for the January 1995 murder of Fundador Otero. Cabrera was serving a life sentence for Murder First Degree. Reyes was serving a twenty-year sentence for Murder Second Degree (Level V time suspended after twelve years for decreasing levels of community- based supervision). 2 “Reyes Trial Counsel” was Jerome M. Capone, Esquire, and Thomas A. Pedersen, Esquire. Reyes Trial Counsel also represented Reyes on direct appeal. 3 The “Trial Court” refers to the presiding judge to whom this case was assigned until September 2013. 1 Degree Murder, two counts of Possession of a Firearm During the Commission of

a Felony, and two counts of Conspiracy in the First Degree.

During the guilt phase, Reyes moved for a mistrial on grounds of juror

misconduct. The Trial Court denied the motion, concluding that the jurors were

able to continue in an unbiased manner. The penalty phase began on October 23,

2001, and ended on October 26, 2001. The jury recommended that Reyes receive

the death sentence for each of the two murders by a vote of 9-3. By decision and

Order dated March 14, 2002, the Trial Court sentenced both Reyes and Cabrera to

death.4

An automatic, direct appeal was filed with the Delaware Supreme Court,5

which addressed several issues: (i) the Trial Court’s denial of individual voir dire

during jury selection; (ii) the admission into evidence of Reyes’ testimony during

cross-examination in the Otero trial;6 (iii) the admission into evidence of two

statements attributed to co-defendant Cabrera; (iv) the admission into evidence of

testimony about the victims’ state of mind on the night of the Rockford Park

Murders; (v) alleged juror misconduct; (vi) whether jury deliberations were tainted

by consideration of information not in evidence; (vii) the constitutionality of the

4 State v. Cabrera, 2002 WL 484641, at *5–8 (Del. Super. Mar. 14, 2002) aff’d and remanded sub nom Reyes v. State, 819 A.2d 305 (Del. 2003) (hereinafter Reyes Sentencing). 5 See 11 Del. C. § 4209(g) (“Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the recommendation on and imposition of that penalty shall be reviewed on the record by the Delaware Supreme Court.”); Reyes’ direct appeal to the Delaware Supreme Court was filed on March 21, 2002. 6 See supra n.1. 2 1991 Delaware Death Penalty Statute; and (viii) an independent review of the

death sentence, including statutory aggravators, and whether the imposition of the

death penalty was arbitrary or capricious. The Supreme Court affirmed Reyes’

convictions and death sentences by Opinion and Order dated March 25, 2003.7

B. Appointment of Rule 61 Counsel and Postconviction Motions

By letter dated March 8, 2004, Reyes notified the Trial Court that Reyes

intended to pursue postconviction relief and requested appointment of counsel.

The Trial Court appointed counsel to represent Reyes in the postconviction

proceedings (“Rule 61 Counsel”).8 Reyes’ Rule 61 motion filed in March 2004—

amended in 2005, 2007, in 2009, and as briefed in 2014, and 2015—is now

pending before this Court for decision.9

7 Reyes v. State, 819 A.2d 305 (Del. 2003) (hereinafter Reyes Direct Appeal). 8 Various lawyers have been appointed to Reyes since 2004: first, Kevin J. O’Connell, Esquire and Jan T. Van Amerongen, Esquire; second, Jan T. Van Amerongen, Esquire and Andrew J. Witherell, Esquire; third, Jan T. Van Amerongen, Esquire and Joseph Gabay, Esquire; fourth, Jan T. Van Amerongen, Esquire and Jennifer-Kate Aaronson, Esquire; fifth, Jennifer-Kate Aaronson, Esquire; sixth Jennifer-Kate Aaronson, Esquire and Michael Modica, Esquire; seventh, Jennifer-Kate Aaronson, Esquire and Natalie Woloshin, Esquire; eighth, Natalie Woloshin, Esquire and Patrick J. Collins, Esquire; ninth, Patrick J. Collins, Esquire and Albert J. Roop, V, Esquire; and tenth, Patrick J. Collins, Esquire. 9 On March 19, 2004, Reyes filed his first motion for postconviction relief. On April 28, 2005, Reyes filed a supplemented motion for postconviction relief. On March 16, 2007, Reyes filed an amended motion for postconviction relief. On October 13, 2009, Reyes filed a second amended motion for postconviction relief. On April 1, 2013, the Trial Court began an evidentiary hearing pursuant to Superior Court Criminal Rule 61(h). The Trial Court held evidentiary hearings in May and August 2012 and April 2013. The presiding judge retired from the Superior Court in May 2013. The matter was reassigned by then-President Judge Vaughn in September 2013. Reyes filed a post-evidentiary hearing brief on April 30, 2014. The State filed a response on October 7, 2014. Reyes replied on November 10, 2014. On January 29, 2015, this Court entered an Order staying Reyes’ postconviction proceedings pending the outcome of Cabrera’s postconviction proceedings. On June 17, 2015, this Court issued its decision with respect to 3 There was little physical evidence presented at the Reyes Rockford Park

Trial that connected Reyes to the Rockford Park Murders. Rather, most of the

evidence presented at the Reyes Rockford Park Trial tied Cabrera to the Rockford

Park Murders. With little physical evidence linking Reyes to the Rockford Park

Murders and with the possibility of a sentence of death, it was essential to a fair

trial and sentencing that Reyes Trial Counsel use all available evidence and “make

timely and appropriate objections to the admission of evidence going to the heart

of the State’s case.”10 Therefore, it was especially important that Reyes Trial

Counsel use all available exculpatory evidence and make appropriate objections to

challenge the State’s minimal case. This Court’s review of the record leads the

Court to conclude that mistakes were made that undermine this Court’s confidence

in the Reyes Rockford Park Trial conviction and sentencing.

First, Reyes’ decision to invoke his Fifth Amendment right during the guilt

phase was not knowing, intelligent, and voluntary. Second, the Trial Court’s delay

in sentencing Cabrera rendered Cabrera unavailable as a witness in the Reyes

Rockford Park Trial, denying access to important exculpatory evidence. Third, the

testimony of Roderick Sterling was the most significant evidence against Reyes;

however, it was highly suspect and because Sterling did not have personal

Cabrera’s motion for postconviction relief and issued a revised opinion on June 22, 2015. The Court requested supplemental briefing, which was submitted on August 24, 2015, November 6, 2015, and November 24, 2015. 10 Starling v. State, 2015 WL 8758197, at *1 (Del. 2015). 4 knowledge of the claims he made, Reyes was deprived of his Sixth Amendment

Right to Confrontation. Fourth, Reyes has established various claims of ineffective

assistance of counsel in both the guilt and penalty phases of the Reyes Rockford

Park Trial that cumulatively prejudiced Reyes.

There is a reasonable probability that the outcome of the Reyes Rockford

Park Trial verdict and sentencing would have been different absent these errors.

Therefore, Reyes’ judgments of conviction and death sentence imposed by Order

dated March 14, 2002 must be vacated.

II. CONSIDERATION OF PROCEDURAL BARS

Superior Court Criminal Rule 61 governs Reyes’ motion for postconviction

relief.11 Postconviction relief is a “collateral remedy which provides an avenue for

upsetting judgments that have otherwise become final.”12 To protect the finality of

criminal convictions, the Court must consider the procedural requirements for

relief set out under Rule 61(i) before addressing the merits of the motion.13

Rule 61(i)(1) bars a motion for postconviction relief if it is filed more than

three years from the final judgment; this bar is not applicable as Reyes’ first

postconviction motion was filed in a timely manner.14 Rule 61(i)(2) bars

11 Super. Ct. Crim. R. 61 has since been amended. All references to Rule 61 refer to the version of the Rule in place in 2004, when Reyes filed his motion for postconviction relief. 12 Flamer v. State, 585 A.2d 736, 745 (Del. 1990). 13 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 14 Rule 61(i)(1) (barring a motion for postconviction relief unless filed within three years after the judgment of conviction is final); Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991). 5 successive postconviction motions;15 this bar is not applicable as Reyes has not

filed successive postconviction motions. Rule 61(i)(3) bars relief if the motion

includes claims not asserted in prior proceedings leading to the final judgment; this

bar will be addressed in the discussion of the claims to which it applies. Rule

61(i)(4) bars relief if the motion includes grounds for relief formerly adjudicated in

any proceeding leading to the judgment of conviction, in an appeal, or in a

postconviction proceeding; this bar will be addressed in the discussion of the

claims to which it applies.

This Court rejects the State’s contention that certain claims set forth in the

pending Rule 61 Motion should not be considered because those claims were not

presented in prior Rule 61 Motions. This is Reyes’ first Rule 61 Motion because

the prior motions were not adjudicated. Moreover, the Trial Court allowed

postconviction evidentiary hearings that further developed the record. There have

been numerous changes in Reyes’ postconviction counsel since Reyes first filed his

Rule 61 Motion in 2004. The Trial Court permitted successive, amended, and

supplemental motions to be filed on Reyes’ behalf. To consider claims barred after

the Court permitted amendments and supplements would render the expanded

record superfluous, Rule 61 Counsel’s efforts futile, and would violate Reyes’

rights to full and fair consideration of whether Reyes’ death penalty trial and

15 Super. Ct. Crim. R. 61(i)(2) (barring successive postconviction motions if the motion includes grounds for relief not asserted in a prior postconviction proceeding). 6 sentencing was conducted in a manner consistent with Reyes’ due process rights.

Accordingly, this Court will consider the claims presented in the briefing without

regard to whether claims were presented in Rule 61 motions were not adjudicated.

The procedural bars to postconviction relief under Rule 61(i)(3)16 can be

overcome if the motion asserts a colorable claim that there has been a “miscarriage

of justice” as the result of a constitutional violation that undermined the

fundamental fairness of the proceedings.17 Likewise, the procedural bar under

Rule 61(i)(4)18 can be overcome if consideration of the claim on its merits is

warranted in the “interest of justice.”19

Finally, Reyes’ postconviction motion asserts multiple claims of

constitutional violations, including claims of ineffective assistance of counsel. The

Delaware Supreme Court has declined to hear claims of ineffective assistance of

counsel on direct appeal.20 Therefore, the first opportunity for Reyes to assert such

claims is in an application for postconviction relief.

16 This exception is also applicable to procedural bars to postconviction relief under Rule 61 (i)(1) and (2), but those bars are not relevant here. 17 Super. Ct. Crim. R. 61(i)(5); see also Younger, 580 A.2d at 555; State v. Wilson, 2005 WL 3006781, at *1 n.6 (Del. Super. Nov. 8, 2005). 18 This exception is also applicable to procedural bars to postconviction relief under Rule 61 (i)(2), but that bar is not relevant here. 19 Super. Ct. Crim. R. 61(i)(5). 20 Flamer, 585 A.2d at 753; State v. Gattis, 1995 WL 790961, at *3 (Del. Super. Dec. 28, 1995). 7 III. THERE ARE COLORABLE CLAIMS OF MISCARRIAGE OF JUSTICE IN THE REYES ROCKFORD PARK TRIAL.

Pursuant to Rule 61(i)(5), procedural bars to postconviction claims are not

applicable to a “colorable claim that there was a miscarriage of justice because of a

constitutional violation that undermined the fundamental legality, reliability,

integrity or fairness of the proceedings leading to the judgment of conviction.”21

Not every constitutional violation merits relief under the “miscarriage of justice”

exception.22 Rather, a criminal defendant must establish a colorable claim of a

constitutional violation, which requires the criminal defendant show “some

credible evidence which takes the claim past the frivolous state.”23

Moreover, pursuant to Rule 61(i)(4), the Court must address any

postconviction claim that has been formerly adjudicated if “reconsideration is

warranted in the interest of justice.” A criminal defendant may trigger the interest

of justice exception by presenting legal or factual developments that have emerged

subsequent to the conviction.24 The interest of justice exception is narrow in

scope; however, the Court must also preserve the purpose of Rule 61(i) procedural

bars: achieving finality of judgments.25

21 Super. Ct. Crim. R. 61(i)(5). 22 See Webster v. State, 604 A.2d 1364, 1366 (Del. 1992). 23 State v. Ducote, 2011 WL 7063381, at *1 n. 4 (Del. Super. Dec. 29, 2011) (citing State v. Wharton, 1991 WL 138417, at *5 (Del. Super. June 3, 1991)). 24 Flamer, 585 A.2d at 746; Weedon v. State, 750 A.2d 521, 527 (Del. 2000) (discussing witness recantation as a factual development for purposes of the exception). 25 State v. Rosa, 1992 WL 302295, at *7 n.10 (Del. Super. Sept. 29, 1992). 8 Upon consideration of the entire record, this Court finds there was a

miscarriage of justice pursuant to Rule 61(i)(5), that reconsideration of otherwise

procedurally barred claims is warranted in the interest of justice pursuant to Rule

61(i)(4). Legal developments have emerged subsequent to the convictions, Reyes

was deprived of his constitutional rights, and the integrity of the Reyes Rockford

Park Trial was compromised.

A. Reyes’ Fifth Amendment rights were violated.

1. Reyes’ decision to invoke his Fifth Amendment right at the guilt phase was not knowing, intelligent, and voluntary.

The decision of whether or not to testify is a fundamental right.26 In

making that decision, Reyes should have had the opportunity to consider that

evidence regarding his involvement with the Otero murder would be admitted

during the penalty phase as an aggravating factor. In his allocution during the

penalty phase of the Reyes Rockford Park Trial, Reyes professed his innocence.

Specifically, Reyes stated: “[O]n everything that I love and on the Word of God, I

did not kill Brandon and Vaughn. I did not take their life. No matter how bad

things may look, the evidence that was presented, I’m not the murderer of them

two.”27 Reyes explained to the jury that he had wanted to testify to profess his

26 See U.S. CONST. amend. V; DEL. CONST. art. 1, § 7. 27 Penalty Phase Tr. Oct. 25, 2001 at 94:20-95:1. 9 innocence during the guilt phase, but he did not do so because Reyes did not want

the jury to hear about Reyes’ role in the Otero murder.28

A criminal defendant alone must make the fundamental decision whether to

testify on his own behalf.29 The decision regarding whether to testify must be

made by a criminal defendant and cannot be made by defense counsel30 because

such a choice “implicate[s] inherently personal rights which would call into

question the fundamental fairness of the trial if made by anyone other than the

defendant.”31 Furthermore, waiver of the right to testify on one’s own behalf must

be knowing, intelligent, and voluntary.32 Whether a waiver of a constitutional right

is knowing, intelligent, and voluntary depends upon the facts and circumstances of

each case.33 A waiver of a constitutional right is knowing, intelligent, and

voluntary “if the defendant is aware of the right in question and the likely

consequences of deciding to forego that right.”34

Although the Trial Court conducted an appropriate colloquy with Reyes and

Reyes stated in open court that his decision was voluntary and not a product of a

28 Id. at 96:3-11. 29 Jones v. Barnes, 463 U.S. 745, 751 (1983); United States v. Lively, 817 F. Supp. 453, 461 (D. Del. 1993) aff’d, 14 F.3d 50 (3d Cir. 1993); Taylor v. State, 28 A.3d 399, 406 (Del. 2011). 30 Lively, 817 F. Supp. at 461. 31 Cooke v. State, 977 A.2d 803, 841 (Del. 2009) (internal citations omitted). 32 See Hall v. State, 408 A.2d 287, 288 (Del. 1979); see also State v. Taye, 2014 WL 785033, at *5 (Del. Super. Feb. 26, 2014) aff’d, 2014 WL 4657310 (Del. Sept. 18, 2014). 33 Lewis v. State, 757 A.2d 709, 714 (Del. 2000). 34 Davis v. State, 809 A.2d 565, 569 (Del. 2002); Richardson v. State, 2015 WL 5601959, at *2 (Del. Super. Sept. 22, 2015). 10 threat or promise,35 Reyes’ waiver of his right to testify was predicated on the

mistaken understanding that, if he did not testify, then information regarding his

involvement in the Otero murder would not be presented to the jury. During his

allocution, Reyes explained: “I didn’t get on the stand during trial because I didn’t

want what I was presently incarcerated for to come up. I felt that by that coming

out, you, the jury, would automatically think I was guilty. Therefore, I chose not

to take the stand.”36

Despite this very significant step taken by Reyes, i.e. not testifying in his

own defense to profess his innocence, the jury heard about the Otero murder in

great detail—not only from the State, but also from Reyes’ own lawyers. For

example, during the penalty phase, the State started its opening statement with a

photograph of Otero and told the jury that the Rockford Park Murders were not the

first time that Reyes had committed murder. The Otero murder was the central

focus of the State’s arguments in favor of death. In addition, Reyes Trial Counsel

introduced the transcript from Reyes’ sentencing for the Otero murder.

Highlighting the prior murder, in introducing the transcript to the jury,37 Reyes

Trial Counsel stated:

35 Guilt Phase Tr. Oct. 16, 2001 at 19:1-21:14. 36 Penalty Phase Tr. Oct. 25, 2001 at 96:3-8. 37 The transcript included statements from Reyes’ Otero trial counsel that Reyes only participated in the Otero murder because of Cabrera’s influence and that Reyes cooperated in the investigation of Cabrera for the Otero murder. Id. at 6:21-7:17. The transcript also included statements from Reyes’ Otero counsel and the State that Reyes, after learning that the police 11 I’m going to skip the niceties. I’m going to get right to the heart of the matter and I want to tell you that this—and I’m going to tell you that this is the sentencing transcript of September 25th, 1988 of Luis Reyes who was being sentenced on a murder second charge for the murder of Fundador Otero.38

While it appears that Reyes understood the right that he waived in waiving

his right to testify on his own behalf, Reyes did not understand the consequences of

choosing to forego that right. Reyes’ explanation to the jury during the sentencing

phase of the Reyes Rockford Park Trial that he wanted to testify to profess his

innocence during the guilt phase, but did not do so to avoid presentation to the jury

about Reyes’ role in the Otero murder shows that Reyes’ expectation was that such

evidence would not be admitted, including by Reyes Trial Counsel. In making the

decision not to testify, Reyes should have had the opportunity to consider that

evidence regarding his involvement with the Otero murder would be admitted

during the penalty phase as an aggravating factor.

Accordingly, Reyes’ decision was not knowing or intelligent because it was

premised on a misunderstanding. The introduction of evidence about Otero

were looking for him, turned himself in, and gave a detailed confession to the murder of Otero. Id. at 7:11-13; 9:23-10:2. The transcript included the State’s reference to the “wrenching” testimony of Otero’s daughter who dreamed of walking down the aisle with her father, the fact that Otero’s “charred remains” were found in New Jersey, and that Reyes “physically was a principal in the murder by holding down Mr. Otero.” Id. at 10:22-11:20. The transcript also included Reyes’ statement to the Otero sentencing judge, in which Reyes conceded that Cabrera’s influence over Reyes did not justify Reyes’ actions, but that Reyes allowed his love for Cabrera to lead him in the wrong direction and that Reyes regrets that every day. See id. at 14:12-15:8. 38 Id. at 4:21-5:4. 12 coupled with Reyes’ expectation that such evidence would not be introduced

seriously undermines whether Reyes’ decision was knowing, intelligent, and

voluntary.

2. The State’s presentation of Reyes’ prior testimony from another proceeding undermined Reyes’ decision to invoke his Fifth Amendment right not to testify.

When Reyes was interviewed by police regarding the Otero murder, Reyes

told police that he made a statement to his girlfriend/fiancé, Elaine Santos, that one

night Reyes was with Cabrera, someone came to Reyes’ house, and Cabrera and

Reyes went to the basement to beat him up. As part of Reyes’ plea agreement in

the Otero murder, Reyes agreed to testify as a witness against Cabrera in Cabrera’s

Otero murder trial in 1998. During Cabrera’s Otero murder trial, the State

questioned Reyes about his statement to Ms. Santos and Reyes admitted that he

lied to Ms. Santos. Subsequently, during the guilt phase of the Reyes Rockford

Park Trial, the State read into evidence (with a detective on the witness stand) this

part of Reyes’ trial testimony from Cabrera’s Otero murder trial.39 It appears the

State’s purpose in introducing this testimony was twofold: (1) to suggest that the

beating involved Saunders and Rowe and had taken place on the night of the

Rockford Park Murders; and (2) to suggest to the jury that Reyes is a liar.

39 See Guilt Phase Tr. Oct. 2, 2001 at 241:22-242:14 (reading into evidence Reyes’ trial testimony dated May 26, 1998, Exhibit 42 in the Reyes Rockford Park Trial). 13 This was improper and objectionable. Although Reyes Trial Counsel

objected to the reading in of Reyes’ prior testimony, 40 the Trial Court permitted

Reyes’ prior testimony to be read to the jury in the Reyes Rockford Park Trial.

The Trial Court simply explained that the testimony was probative and determined

there was no Delaware Rule of Evidence (“DRE”) “403 issue that prohibit[ed] its

admission.”41 However, Reyes’ former testimony was nevertheless inadmissible

hearsay and undermined Reyes’ choice to invoke his Fifth Amendment right not to

testify.

“Evidence of a person’s character or a trait of his character is not admissible

for the purpose of proving action in conformity therewith on a particular

occasion.”42 However, an exception to this rule includes “[e]vidence of a pertinent

trait of character offered by an accused, or by the prosecution to rebut the same.”43

Moreover, a witness’ credibility may be impeached by evidence in the form of

reputation or opinion.44 Generally, a witness’ credibility may not be impeached

with extrinsic evidence of a specific instance of conduct.45 However, in the

discretion of the Court, a specific instance of conduct related to the witness’

40 Reyes Trial Counsel objected to Reyes’ prior testimony at a pre-trial conference and during the guilt phase of the Reyes Rockford Park Trial. See Pre Trial Conf. Tr. Sept. 27, 2001 at 34:19- 53:16; Guilt Phase Tr. Oct. 2, 2001 at 230:17-233:11. 41 Pre Trial Conf. Tr. Sept. 27, 2001 at 49:13-50:11. 42 D.R.E. 404(a). 43 D.R.E. 404(a)(1). 44 D.R.E. 608(a). 45 D.R.E. 608(b). 14 credibility may be “inquired into on cross-examination of the witness” if it

concerns “the witness’ character for truthfulness or untruthfulness” or it concerns

“the character for truthfulness or untruthfulness of another witness as to which

character the witness being cross-examined has testified.”46

There is nothing in the record that suggests that Reyes Trial Counsel

introduced evidence regarding the character trait for truthfulness or untruthfulness

for Saunders, Rowe, or Reyes. Further, Reyes’ testimony that was introduced was

neither opinion nor reputation evidence as permitted under the DRE. Instead, it

was a specific instance of conduct, which is inadmissible in the form of extrinsic

evidence and can only be inquired into on cross-examination. Accordingly,

evidence of Reyes’ character trait for truthfulness was inadmissible because he was

not a witness in the Reyes Rockford Park Trial because he invoked his Fifth

Amendment right, and his character for truthfulness was not otherwise attacked.

Moreover, even if Reyes’ character for truthfulness was at issue, extrinsic

evidence—the reading of the testimony into evidence and introducing it as an

exhibit—was inadmissible under the DRE. Presentation of Reyes’ own testimony

from a prior proceeding undermined Reyes’ decision not to testify as a witness

against himself.

46 Id. 15 B. Cabrera was unavailable as a witness in the Reyes Rockford Park Trial because Cabrera was not promptly sentenced after his conviction.

Cabrera’s trial for the Rockford Park Murders took place in early 2001. The

jury returned a verdict on February 11, 2001, finding Cabrera guilty of two counts

of First Degree Murder, two counts of Conspiracy in the First Degree, and other

offenses. The Cabrera penalty phase began on February 13, 2001, and ended on

February 15, 2001. The jury recommended that Cabrera receive the death sentence

for each of the Rockford Park Murders by a vote of 11–1. The Court postponed

Cabrera’s sentencing until the completion of the Reyes Rockford Park Trial. Ten

months later, Reyes was convicted on October 19, 2001, and on October 26, 2001,

the jury recommended that Reyes receive the death sentence for each of the

Rockford Park Murders by a vote of 9–3. By decision and Order dated March 14,

2002, the Trial Court sentenced both Cabrera and Reyes to death.47

Although Cabrera’s trial concluded more than eight months before the Reyes

Rockford Park Trial, Cabrera had not been sentenced by the Trial Court at the time

of Reyes’ trial. Indeed, the Cabrera death sentence was imposed more than

thirteen months after the jury recommended a death sentence for Cabrera. Because

his sentencing was still pending, Cabrera was unavailable as a witness at the Reyes

Rockford Park Trial.48

47 Reyes Sentencing, 2002 WL 484641, at *5–8. 48 Cabrera v. State, 840 A.2d 1256, 1267 (Del. 2004) (hereinafter Cabrera Direct Appeal). 16 Had Cabrera testified as a witness at the Reyes Rockford Park Trial, Cabrera

may have introduced reasonable doubt regarding Reyes’ role in the Rockford Park

Murders. Specifically, Reyes Trial Counsel met with Cabrera in March 2001 and

Cabrera explained to Reyes Trial Counsel that Reyes was not responsible for the

Rockford Park Murders, but instead that a man named Neil Walker had committed

the murders. Cabrera detailed an altercation that involved Walker, Cabrera,

Saunders, and Rowe that gave a motive for Walker to commit the Rockford Park

Murders.

However, instead of testifying on behalf of Reyes, Cabrera advised that, if

called as a witness in the Reyes Rockford Park Trial, Cabrera would invoke his

Fifth Amendment right because he had not yet been sentenced.49 Accordingly, a

critical witness with exculpatory evidence for Reyes was unavailable because of

the Trial Court’s exercise of discretion as to the timing of Cabrera’s sentencing.

The Trial Court’s delay in sentencing Cabrera rendered Cabrera unavailable as a

witness in the Reyes Rockford Park Trial, denying access to exculpatory evidence

and undermining the fairness of the trial.

49 See Letter from John P. Deckers to Luis Cabrera, March 6, 2001; Letter from Luis Cabrera to Reyes Trial Counsel, Sept. 23, 2001; Letter from John P. Deckers to Reyes Trial Counsel, Oct. 9, 2001. 17 C. The testimony offered by Sterling was highly suspect yet it was the most significant evidence linking Reyes to the Rockford Park Murders.

There was very limited evidence presented at the Reyes Rockford Park Trial

that linked Reyes to the Rockford Park Murders. Indeed, there was no physical

evidence at all that connected Reyes to the Rockford Park Murders. Instead, most

of the evidence presented linked the murders to Cabrera who had already been

tried and convicted. Instead, the only evidence presented at Reyes Rockford Park

Trial that linked Reyes to the Rockford Park Murders was the testimony of

Roderick Sterling, a convicted sex offender who received a significant advantage

by testifying against Reyes and who did not even have personal knowledge about

the claims he made against Reyes. The Trial Court described this as “the most

significant testimony” presented against Reyes by the State.50

1. The benefit offered to Sterling by the State in exchange for Sterling’s testimony rendered Sterling’s testimony unreliable.

Sterling was arrested on May 2, 1997, for raping a seven-year-old child.

Sterling was charged with two counts of Unlawful Sexual Intercourse First Degree

and detained at Howard R. Young Correctional Institution (“HRYCI”). At that

time, Reyes was also detained at HRYCI for the Otero murder and no one had yet

been charged with the 1996 Rockford Park Murders.51

50 Reyes Sentencing, 2002 WL 484641, at *8. 51 Reyes was sentenced for the Otero murder on September 25, 1998. Upon sentencing, Reyes would have been moved to the sentenced population at HRYCI. 18 In June 1997, Sterling—with the assistance of his cellmate Ivan Galindez—

sent a letter to Sterling’s attorney in the child rape case claiming to have

information in connection with the Rockford Park Murders. Specifically, Sterling

claimed he had overheard Reyes admit Reyes was responsible for the Rockford

Park Murders when Reyes was speaking to Galindez. On January 20, 1998,

Sterling gave a statement to the police claiming that sometime between May 1997

and June 23, 1997, a conversation took place between Galindez and Reyes

regarding the Rockford Park Murders, which Sterling claimed to have overheard.

On December 1, 1998, Sterling pled guilty to one count of Unlawful Sexual

Intercourse Second Degree and was sentenced by Order dated January 29, 1999, to

twenty (20) years at Level V, suspended after ten (10) years at Level V, followed

by ten (10) years of community-based supervision. On December 6, 1999, Cabrera

and Reyes were indicted for the Rockford Park Murders. On September 14, 2001,

four days before jury selection for the Reyes Rockford Park Trial, Sterling agreed

to testify at the Reyes Rockford Park Trial about the alleged jailhouse confession

by Reyes.

Sterling received a huge benefit for his testimony against Reyes. Indeed,

after Sterling’s testimony in the Reyes Rockford Park Trial, the State joined

Sterling’s motion to withdraw his guilty plea to Unlawful Sexual Intercourse

Second Degree. The motion was granted; Sterling withdrew his plea; the State

19 offered Sterling a plea to the lesser offense of Unlawful Sexual Intercourse Third

Degree, and recommended a sentence of ten (10) years at Level V, suspended

immediately for time served for non-reporting probation at Level I, with the

expectation that Sterling would promptly be deported to Jamaica. Therefore, in

exchange for his testimony against Reyes, Sterling was released immediately from

prison for time served on February 4, 2002, serving half the time to which he was

originally sentenced.

2. Sterling did not have personal knowledge regarding the claims he made and, therefore, Reyes was deprived of his Sixth Amendment Right of Confrontation.

Sterling testified inaccurately at the Reyes Rockford Park Trial that Sterling

overheard a conversation at HRYCI between Reyes and Galindez and that, in that

conversation, Reyes admitted to Galindez that Reyes killed Saunders and Rowe.

In other words, when Sterling testified, he claimed to have personal knowledge

regarding Reyes’ alleged statements. However, in September 2008 when private

investigators interviewed Sterling in Jamaica, Sterling claimed that he learned

details of the Rockford Park Murders from Galindez and not from Reyes.52 Reyes

had a Sixth Amendment right to confront the witness who testified against him. 53

52 State v. Reyes, 2012 WL 8256131, at *9 (Del. Super. Nov. 13, 2012). 53 Franco v. State, 918 A.2d 1158, 1161 (Del. 2007) (“Both the United States and the Delaware Constitutions guarantee an accused the right to confront the witnesses against him in all criminal prosecutions.”). 20 Because Sterling testified against Reyes and not Galindez, Reyes’ Sixth

Amendment right was violated.

3. The State violated Brady by failing to disclose impeachment evidence.

The State violated Reyes’ constitutional rights by failing to disclose

impeachment evidence concerning Sterling. Specifically, the State knew that

Sterling had a history of drug and alcohol use, convictions, and treatment, yet

failed to provide this information to Reyes Trial Counsel. Reyes was prejudiced

because without access to this impeachment evidence, Sterling could not properly

be cross-examined with information that called into question Sterling’s reliability.

Under Brady, the State may not suppress evidence that is favorable to a

defendant if the evidence is material to either guilt or punishment. 54 Under

Delaware law, there are three necessary elements for a finding that a Brady

violation occurred: (1) the evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is impeaching; (2) that evidence must

have been suppressed by the State, either willfully or inadvertently; and (3)

prejudice ensued.55 Impeachment evidence falls within Brady because it is

“‘evidence favorable to an accused,’ so that, if disclosed and used effectively, it

54 Brady v. Maryland, 373 U.S. 83, 87 (1963); Atkinson v. State, 778 A.2d 1058, 1062 (Del. 2001) (applying Brady). 55 Starling, 2015 WL 8758197, at *12. 21 may make the difference between conviction and acquittal.”56 Moreover,

“[e]ffective cross-examination is essential to a defendant’s right to a fair trial”

because it is the “‘principal means by which the believability of a witness and the

truth of [his] testimony are tested.’”57 To reverse a conviction based on a Brady

violation, a defendant must show that the undisclosed evidence “could reasonably

be taken to put the whole case in such a different light as to undermine confidence

in the verdict.”58 The suppressed evidence must “create[] a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.”59

Most recently, the Delaware Supreme Court addressed Brady violations in

Starling v. State.60 The Court held that the State violated Brady when it

“inaccurately describe[ed] the status of [] criminal charges” of a pivotal witness.61

Indeed, the witness identified Starling as the shooter involved in the deaths of two

individuals.62 The Delaware Supreme Court identified the witness as “the State’s

main witness” whose credibility was at stake.63 Specifically, the State inaccurately

represented to Starling’s trial counsel that the witness’ violation of probation and

56 Atkinson, 778 A.2d at 1062 (internal citations omitted). 57 Id. at 1061-62 (internal citations omitted). 58 Jackson v. State, 770 A.2d 506, 516 (Del. 2001). 59 Starling, 2015 WL 8758197, at *12. 60 See id. at *1. 61 Id. at *10. 62 Id. at *1. 63 Id. at *14, 15. 22 outstanding capias were pending during trial; however, those pending legal matters

had in fact been dismissed before Starling’s trial.64

The reasoning of the Delaware Supreme Court in Starling is applicable here.

Just as there was no physical evidence linking Reyes to the Rockford Park

Murders, there was also “no physical evidence linking Starling to the crime” of

which he was convicted.65 Like the identification witness about whom the

Supreme Court expressed concerns, Roderick Sterling was the State’s “main

witness” in the Reyes Rockford Park Trial. In Starling, the State inaccurately

described the pending criminal charges against the State’s pivotal witness;

similarly, in the Reyes Rockford Park Trial, the State failed to disclose Roderick

Sterling’s history of drug and alcohol abuse, convictions, and treatment. Reyes

could have utilized this information to cast doubt on the credibility of Roderick

Sterling as a witness. Cross-examination is critical to a fair trial.66

D. There was a miscarriage of justice in the Reyes Rockford Park Trial.

Viewing the Reyes Rockford Park Trial conviction and sentencing as a

whole, Reyes’ right to a fair trial was seriously undermined. There are colorable

claims of miscarriage of justice in the Reyes Rockford Park Trial, and Reyes was

64 Id. at *10-11. 65 Id. at *1 66 Atkinson, 778 A.2d at 1062. 23 deprived of his constitutional trial rights. Accordingly, because the integrity of the

Reyes Rockford Park Trial was compromised, the conviction must be vacated.

IV. REYES’ ROCKFORD PARK SENTENCING DID NOT MEET CONSTITUTIONAL STANDARDS BECAUSE THERE WAS INADEQUATE CONSIDERATION OF REYES’ STATUS AS AN ADOLESCENT AND HIS IMMATURE BRAIN DEVELOPMENT.

When Fundador Otero was murdered, Reyes was just seventeen (17) years

old. At the time, Reyes was a high school student and varsity member of the A.I.

DuPont High School wrestling team. Reyes confessed to his role in Otero’s

murder, and agreed to testify against Cabrera.67 At Cabrera’s Otero murder trial,

Reyes admitted his role, but also explained his reluctance to participate in the

crime. Reyes explained how he succumbed to pressure placed on him by Cabrera.

In the Reyes Rockford Park Trial—although Reyes was only seventeen (17) years

old at the time and despite his confession and cooperation with the police during

the Otero investigation and trial—the State and the Trial Court emphasized Reyes’

role in the Otero murder as the most significant non-statutory aggravating factor

supporting the death penalty for the Rockford Park Murders.

At the time of the Otero murder, Reyes was seventeen (17) years old. At the

time of the Rockford Park Murders, Reyes was eighteen (18) years old.68

67 In marked contrast to his admissions during the Otero murder investigation, Reyes steadfastly professed his innocence with respect to the Rockford Park Murders. 68 At the time of the Rockford Park Murders, Reyes was one month shy of his 19th birthday. While the State emphasized that the murder victims were teenagers, the State did not 24 Although Reyes had reached the chronological age of adulthood, Reyes was a

youthful offender at the time of the Rockford Park Murders. The weight attributed

to the Otero crime, for purposes of the penalty phase for the Rockford Park

Murders, is inconsistent with the constitutional standards established by the United

States Supreme Court for youthful offenders, especially in consideration of the

relationship between Cabrera and Reyes. The constitutional standards for

sentencing of a youthful offender demand full consideration of Reyes’ youth and

brain development, as well as consideration of Cabrera’s negative influence,

particularly in a death penalty case.

A. Constitutional jurisprudence pre-2001

In 1982, the United States Supreme Court decided Eddings v. Oklahoma,69

and held:

[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults.70

The Eddings Court noted: “‘[D]uring the formative years of childhood and

adolescence, minors often lack the experience, perspective, and judgment’

acknowledge that Reyes was also only a teenager at the time. Indeed, Reyes was a classmate of the victims. 69 455 U.S. 104 (1982). 70 Id. at 115–116 (emphasis added). 25 expected of adults.”71 The conclusions reached in Eddings relied, in part, on task

force reports dating back to 1967, which provided:

Adolescents everywhere, from every walk of life, are often dangerous to themselves and to others. [A]dolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults. Moreover, youth crime as such is not exclusively the offender’s fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America’s youth.72

The Eddings Court explained that consideration of an adolescent defendant’s

background, as well as the defendant’s mental and emotional development, did not

serve to excuse the defendant’s legal responsibility for the crime committed.73

Rather, such considerations are important because “just as the chronological age of

a minor is itself a relevant mitigating factor of great weight, so must the

background and mental and emotional development of a youthful defendant be

duly considered in sentencing [for the crime of murder].”74

In 1988, the United States Supreme Court held in Thompson v. Oklahoma75

that “the execution of a person who was under 16 years of age at the time of his or

71 Id. at 116 (quoting Bellotti v. Baird, 443 U.S. 622, 635 (1979)). 72 Id. at 115, n.11. 73 Id. at 116 (acknowledging that youths were committing increasingly violent crimes). 74 Id. at 116 (emphasis added). 75 487 U.S. 815 (1988). 26 her offense” is unconstitutional.76 The Thompson Court’s reasoning, rather than its

holding, is of interest to this Court. Specifically, the decision in Thompson

explained that distinctions between juveniles and adults abound in society and

these distinctions should apply for purposes of sentencing young criminal

defendants:

Justice Powell has repeatedly reminded us of the importance of “the experience of mankind, as well as the long history of our law, recognizing that there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults. Examples of this distinction abound in our law: in contracts, in torts, in criminal law and procedure, in criminal sanctions and rehabilitation, and in the right to vote and to hold office.”77

****

It is generally agreed “that punishment should be directly related to the personal culpability of the criminal defendant.” There is also broad agreement on the proposition that adolescents as a class are less mature and responsible than adults. We [have] stressed this difference in explaining the importance of treating the defendant's youth as a mitigating factor in capital cases . . . . Thus, the Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. The basis for this conclusion is too obvious to require extended explanation. Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.78

76 Id. at 838. 77 Id. at 823 (internal citations omitted). 78 Id. at 834–35 (internal citations omitted). 27 In 1993, the United States Supreme Court revisited the issue of youth as a

mitigating factor in Johnson v. Texas.79 The Johnson Court made clear that

“[t]here is no dispute that a defendant’s youth is a relevant mitigating circumstance

that must be within the effective reach of a capital sentencing jury if a death

sentence is to meet the requirements of Lockett and Eddings.”80 The Johnson

Court held:

A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions. A sentencer in a capital case must be allowed to consider the mitigating qualities of youth in the course of its deliberations over the appropriate sentence.81

The Johnson Court stressed the importance of presenting the qualities of youth as

mitigating evidence:

Even on a cold record, one cannot be unmoved by the testimony of petitioner’s father urging that his son’s actions were due in large part to his youth. It strains credulity to suppose that the jury would have viewed the evidence of petitioner's youth as outside its effective reach in answering the second special issue. The relevance of youth as a mitigating factor derives from the fact that the signature qualities of

79 509 U.S. 350 (1993). 80 Id. at 367 (citing Sumner v. Shuman, 483 U.S. 66, 81–82 (1987); Eddings, 455 U.S. at 115; Lockett v. Ohio, 438 U.S. 586, 608 (1978) (plurality opinion)); see Lockett, 438 U.S. at 604 (“[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”) (emphasis added). 81 Johnson, 509 U.S. at 367 (emphasis added). 28 youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.82

Therefore, the constitutional precedent at the time of the Reyes Rockford

Park Trial—as established in 1982, 1988, and 1993—required Reyes Trial Counsel

to present the transient qualities of youth as mitigating evidence. The purpose of

such a presentation was to advise a jury that the youthfulness of a criminal

defendant is to be viewed as more than a chronological age. Rather, youthful

criminal defendants, such as Reyes, are adolescents, susceptible to their

environment, negative influences, and peer pressures but often without the fully

developed brain and ability to appreciate the consequences for their reckless and

dangerous behaviors. More importantly, evidence of youthfulness allows a jury to

consider the fact that, as the youthful defendant ages, his emotional and mental

intelligence will develop along with the wherewithal to reason, rationalize, and

comprehend consequence.

B. Roper v. Simons

In 2005, the United States Supreme Court readdressed the presentation in a

capital trial of youthfulness as mitigating evidence in Roper v. Simmons.83 The

Roper Court recognized that capital punishment, the ultimate punishment, should

be limited to a narrow category of defendants who commit the most heinous crimes

82 Id. at 368 (emphasis added). 83 543 U.S. 551 (2005). 29 with extreme culpability. The Court held that a defendant under the age eighteen

(18)—a juvenile—could not receive the death penalty even when the juvenile

defendant commits a heinous crime.84

In reaching its conclusion, the Roper Court noted three general differences

between juveniles and adults that render the death penalty unconstitutional for

juveniles. First, according to scientific and sociological data, juveniles lack

maturity and have an underdeveloped sense of responsibility. 85 Second, “juveniles

are more vulnerable or susceptible to negative influences and outside pressures,

including peer pressure.”86 “This is explained in part by the prevailing

circumstance that juveniles have less control, or less experience with control, over

their own environment.”87 Third, juveniles have not developed a sense of character

as their personality traits are “more transitory, less fixed.”88

The Roper Court summarized the significance of a juvenile’s transient youth

as follows:

84 Id. at 568, 570–71 (holding that juveniles are of a diminished capacity and, thus, the Eighth Amendment prohibits the imposition of the death penalty on juvenile offenders under eighteen years of age.) 85 Id. at 569 (relying, in part, on data from a 1992 study: Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 DEVELOPMENTAL REV. 339 (1992)). 86 Id. 87 Id. (relying, in part, on data from a 2003 report: Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. PSYCHOLOGIST 1009, 1014 (2003), providing, “[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting.”). 88 Id. at 570 (relying, in part, on data from a 1968 report: E. Erikson, Identity: Youth and Crisis (1968)). 30 The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.89

The Roper decision was issued three years after the imposition of Reyes’

death sentence. Despite the timing of Roper after the Reyes Rockford Park Trial,

the decision is significant. First, the Roper decision is rooted in United States

Supreme Court precedent and data from scientific and sociological studies that pre-

date the Reyes Rockford Park Trial. Indeed, brain development—particularly

development of the brain’s executive functions—was already a topic of discussion

and scientific research at the time of the Reyes Rockford Park Trial.90

Accordingly, while the Roper decision did establish a new constitutionally-based

rule of law three years after the Reyes Rockford Park Trial, Roper did so, almost

89 Id. (internal citations omitted) (emphasis added). 90 See e.g., Anderson, Vicki A., et. al, Development of Executive Functions Through Late Childhood and Adolescence in an Australian Sample, DEVELOPMENTAL NEUROPSYCHOLOGY, Vol. 20, Issue 1, p. 385–406 (2001); Nagera, Humberto, M.D., Reflections on Psychoanalysis and Neuroscience: Normality and Pathology in Development, Brain Stimulation, Programming, and Maturation, NEUROPSYCHOANALYSIS: AN INTERDISCIPLINARY JOURNAL FOR PSYCHOANALYSIS AND THE NEURSCIENCES, Vol. 3, Issue 2, p. 179–191 (2001); Welsh, Marilyn C., et. al., A normative-developmental study of executive unction: A window on prefrontal function in children, DEVELOPMENTAL NEUROPSYCHOLOGY, Vol. 7, Issue 2, p. 131–149 (1991). 31 entirely, based on information readily available to Reyes Trial Counsel in 2001.

Second, this Court acknowledges that Reyes was eighteen (18) years old at the

time of the Rockford Park Murders and, therefore, the rule of Roper does not

strictly apply; nevertheless, as the Roper Court explained: “the qualities that

distinguish juveniles from adults do not disappear when an individual turns 18.”91

Reyes Trial Counsel should have explored and presented mitigating

evidence concerning the qualities of Reyes’ youth. Moreover, in its penalty phase

presentation, the State emphasized Reyes’ involvement in the Otero murder, which

occurred when Reyes was only a seventeen (17) year old juvenile. More

importantly, the Trial Court relied heavily on the Otero murder in sentencing

Reyes to death, explaining that the “non-statutory aggravating circumstance [of

Reyes’ involvement in the Otero murder] weighs about as heavily as such

circumstance can get.”92

C. Evolving Standards Evidenced in Graham v. Florida and Miller v. Alabama

The trend of recognizing the constitutional differences between youth and

adulthood continued in the United States Supreme Court’s 2010 decision in

Graham v. Florida.93 Noting that juvenile offenders are less culpable than adults,

the Graham Court held that it was unconstitutional to sentence a juvenile to life

91 Roper, 543 U.S. at 574 (emphasis added). 92 Reyes Sentencing, 2002 WL 484641, at *512. 93 560 U.S. 48 (2010). 32 imprisonment for any crimes less serious than murder. Referencing Roper, the

Graham Court explained that “developments in psychology and brain science

continue to show fundamental differences between juvenile and adult minds. For

example, parts of the brain involved in behavior control continue to mature through

late adolescence.”94 The underlying message of Graham is consistent with the

message of its decisional predecessors: “[j]uveniles are more capable of change

than are adults, and their actions are less likely to be evidence of ‘irretrievably

depraved character’ than are the actions of adults.”95

In 2012, the United States Supreme Court decided Miller v. Alabama.96

Reiterating the notion that juveniles are “less deserving of the most severe

punishments,”97 and relying on the aforementioned constitutional precedent, the

Miller Court held it was unconstitutional to “require[] that all children convicted of

homicide receive lifetime incarceration without possibility of parole, regardless of

their age and age-related characteristics and the nature of their crimes.”98

The reasoning and analysis in support of the rule of Miller, rather than the

rule itself, is relevant to the matter pending before this Court. The Miller Court

94 Id. at 68. 95 Id. (quoting Roper, 543 U.S. at 570). 96 132 S.Ct. 2455 (2012). 97 Id. at 2464. 98 Id. at 2475 (emphasis added). Further, on January 25, 2016, the Supreme Court of the United States decided Montgomery v. Louisiana and held that Miller’s ban on mandatory life-without parole sentences for juvenile offenders must be applied retroactively. See Montgomery v. Louisiana, 577 U.S. __ (2016). As noted, infra ns.102-04, the Delaware legislature has already extended Miller retroactively by statute. 33 concluded that such a mandate—that all juveniles convicted of homicide receive

life without a chance of parole—precludes the sentencer from considering critical

factors related to the youthful offender even when imposing the harshest penalties.

According to the Miller Court, such a mandate precluded consideration of factors

such as: (1) the hallmark features of chronological age (immaturity, impetuosity,

and the failure to appreciate consequence); (2) the family and home environment

from which the youthful offender could not extricate himself; (3) the circumstances

surrounding the homicide offense (including the offenders involvement and the

effects of peer pressure); (4) the vulnerabilities to negative influence; (5) the

features that distinguish adolescents from adulthood; and (6) the possibility of

rehabilitation.99 The concept explained in Miller was not new, it was just

simplified: children are different.100

In response to Graham and Miller, in 2013, the Delaware General Assembly

amended Chapter 42 of Title 11 of the Delaware Code by inserting Section

4209A101 and amending Section 4204A102 to conform Delaware law to the

99 Miller, 132 S.Ct. at 2468. 100 Id. at 2464. 101 11 Del. C. § 4209A, entitled Punishment for first-degree murder committed by juvenile offenders, provides:

Any person who is convicted of first-degree murder for an offense that was committed before the person had reached the person’s eighteenth birthday shall be sentenced to term of incarceration not less than 25 years to be served at Level V up to a term of imprisonment for the remainder of the person’s natural life to be served at Level V without benefit of probation or parole or any other reduction. 34 constitutional requirements stated by the United States Supreme Court, specifically

the differences between juveniles and adult offenders for purposes of sentencing.103

D. Reyes Trial Counsel’s mitigation presentation did not include adequate information regarding Reyes’ youth as a mitigating factor and, therefore, did not meet constitutional standards.

Reyes Trial Counsel did not present the transient qualities of Reyes’ youth in

accordance with constitutional demands. To the contrary, Reyes Trial Counsel

emphasized Reyes’ status as an irredeemable adult predisposed to violence, which

Reyes was unable to avoid as an adult. Instead of presenting Reyes as a youthful

offender who should be considered less culpable, Reyes Trial Counsel actually

presented a so-called “mitigation” case that emphasized Reyes as a violent and

dangerous person.

In their penalty phase opening statement, Reyes Trial Counsel showed a

picture of Reyes as a toddler—“Point A”—and pointing to Reyes, a convicted

murder, in the courtroom—“Point B”—Reyes Trial Counsel explained to the jury

that its penalty phase presentation would present evidence meant to “take [the jury]

from point A to B. We will introduce this evidence to you for one purpose so you

102 11 Del. C. § 4204A (providing for the confinement of youth convicted in Superior Court). 103 See Del. Bill Summ., 2013 Reg. Session. S.B. 9 (147th General Assembly 2013) (May 16, 2013). 35 can understand why Luis Reyes turned out the way he is.”104 Reyes Trial Counsel

explained its point A to B theory to the jury as follows:

[T]he evidence is important to help you understand how a child at risk, [a] child like Luis Reyes is molded into a teenager who makes horrible wrong choices. You will hear from our witnesses that at certain important stages of his development Luis Reyes was exposed to certain behaviors by his family members that put him at high risk to commit violent acts . . . . You will hear Mr. Reyes lived in as home with domestic violence both physical and verbal.105

Additionally, in its closing statements of the penalty phase, Reyes Trial

Counsel stated, “[t]here is only one truly important question in this case and that’s

how and why Luis Reyes developed the capacity to commit murder.”106 Then

Reyes Trial Counsel asked the jury, rhetorically, “How does a child, born like any

other child, develop into a teenage murderer?”107 Finally, in one of the final

comments for the jury’s consideration, Reyes Trial Counsel told the jury: “Reyes’

life was marked, measured, and set into place when he was still a child. [Reyes]

was unable to escape from the tragic path of his life, though others have escaped,

and he became a criminal like all the men who grew up in the Reyes household.”108

The record demonstrates that Reyes Trial Counsel only discussed Reyes’

“youth” to support a theme that Reyes had been “hardwired for violence” and

became a violent and dangerous adult. Reyes was presented as someone who was 104 Penalty Phase Tr. Oct. 23, 2001 at 27:5–12. 105 Id. at 28:15–21, 29:11–12. 106 Penalty Phase Tr. Oct. 25, 2001 at 113:2–4. 107 Id. at 121:1–2 (emphasis added). 108 Id. at 137:18–23. 36 fully developed and beyond the capacity for change. Reyes Trial Counsel did not

offer even the possibility for change as Reyes matured chronologically, mentally,

intelligently, and so on. Indeed, the jury never heard the idea that the capacities of

a youthful offender are less than that of an adult and that youths are still

developing and maturing even though these concepts are at the very heart of the

jurisprudence demanding consideration of the qualities of youth as mitigating

evidence.

This Court is not suggesting that it is per se unreasonable for defense

counsel to present only “negative” aspects as its mitigation strategy. It seems that

the strategy of Reyes Trial Counsel was meant to avoid death for their client.

Nevertheless, in light of constitutional demands, prevailing professional norms, the

mitigation investigation conducted, and all of the relevant mitigating evidence in

the record, including the postconviction record, the Court finds the presentation did

not meet constitutional standards. This is especially because of the Trial Court’s

significant reliance on Reyes’ involvement at age seventeen (17) in the Otero

murder as well as Reyes’ age at the time of the Rockford Park Murders.

Reyes Trial Counsel failed to present the age-related characteristics of Reyes

that weighed against Reyes’ moral culpability for the Rockford Park Murders.

Instead, Reyes Trial Counsel solely presented “negative” aspects of Reyes and his

childhood and argued, essentially, that Reyes was born and raised to become the

37 violent man sitting before the jury. Such a mitigation strategy is entirely

inconsistent with the well-known concepts of youth underlying our constitutional

jurisprudence.109 Executing Reyes based on this presentation would violate

constitutional standards. For these reasons, Reyes’ death sentence must be

vacated.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard for Ineffective Assistance of Counsel

Reyes claims that Reyes Trial Counsel provided ineffective legal assistance

in violation of Reyes’ rights under the Sixth, Eighth, and Fourteenth Amendments

to the U.S. Constitution and Article 1, Section 7 of the Delaware Constitution. The

standard used to evaluate claims of ineffective counsel is the two-prong test

articulated by the United States Supreme Court in Strickland v. Washington,110 as

adopted in Delaware.111 The movant must show that (1) trial counsel’s

representation fell below an objective standard of reasonableness; and (2) there is a

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

of the proceeding would have been different.112 Failure to prove either prong will

render the claim insufficient.113 Moreover, the Court shall dismiss entirely

109 With respect to the evidence that Reyes Trial Counsel failed to produce in mitigation regarding Reyes’ developmental issues, see infra Section V(C) generally. 110 466 U.S. 668 (1984). 111 See Albury v. State, 551 A.2d 53 (Del. 1988). 112 Strickland, 466 U.S. at 687. 113 Id. at 688; Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996). 38 conclusory allegations of ineffective counsel.114 The movant must provide

concrete allegations of prejudice, including specifying the nature of the prejudice

and the adverse affects actually suffered.115

With respect to the first prong—the performance prong—the movant must

overcome the strong presumption that counsel’s conduct was professionally

reasonable.116 To satisfy the performance prong, Reyes must assert specific

allegations to establish Reyes Trial Counsel acted unreasonably as viewed against

“prevailing professional norms.”117 With respect to the second prong—the

prejudice prong—cumulative error can satisfy the prejudice prong when it

undermines confidence in the verdict.118

B. Reyes has established Ineffective Assistance of Counsel in the guilt phase of the Reyes Rockford Park Trial.

With no physical evidence linking Reyes to the Rockford Park Murders, it was

essential for a fair trial that Reyes Trial Counsel “use all available impeachment

evidence, and make timely and appropriate objections to the admission of evidence

going to the heart of the State’s case.”119 Roderick Sterling’s testimony was at the

heart of the State’s case against Reyes. This Court finds that the errors by Reyes

114 Younger, 580 A.2d at 555; Jordan v. State, 1994 WL 466142, at *1 (Del. Aug. 25, 1994). 115 Strickland, 466 U.S. at 692; Dawson, 673 A.2d at 1196. 116 Strickland, 466 U.S. at 687–88. 117 Id. at 688; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996) (“Mere allegations of ineffectiveness will not suffice.”). 118 See Starling, 2015 WL 8758197, at *14-15. 119 Id. at *1. 39 Trial Counsel during the guilt phase of the Reyes Rockford Park Trial resulted in

cumulative prejudice to Reyes.

1. Reyes Trial Counsel failed to establish that the information Sterling provided in the letter to Sterling’s counsel was hearsay.

Under the DRE, hearsay is inadmissible unless otherwise provided by the

DRE or law.120 It is well-established under the DRE that admissions by party

opponents are considered non-hearsay.121 Admissions by a party include

statements made by the party himself and “statements which he has manifested his

adoption or belief in its truth.”122

Sterling sent a letter to his counsel (“Sterling Letter”) claiming that Reyes

admitted his role in the Rockford Park Murders and Sterling testified about the

Sterling Letter at the Reyes Rockford Park Trial. Sterling admitted at the Reyes

Rockford Park Trial that Galindez wrote the Sterling Letter and that Sterling

signed it.123 At the Reyes Rockford Park Trial, Reyes Trial Counsel objected to

Sterling’s testimony regarding the Sterling Letter on hearsay grounds.124

Overruling Reyes Trial Counsel’s objection, the Trial Court found that even

though Galindez and not Sterling wrote the Sterling Letter, Sterling adopted the

120 D.R.E. 802. 121 D.R.E. 801(d)(2); Flonnory v. State, 893 A.2d 507, 516 (Del. 2006). 122 D.R.E. 801 (d)(2)(A)-(B). 123 Guilt Phase Tr. Oct. 3, 2001 at 36:3-4; 39:12-16. 124 Id. at 36:11-23; 37:1-23. 40 contents of the Sterling Letter and, therefore, testimony regarding the Sterling

Letter was admissible under the DRE.125

Although Reyes Trial Counsel properly objected to Sterling’s testimony

about the Sterling Letter, Reyes Trial Counsel did not present an accurate and

thorough basis for the hearsay objection to the Trial Court. Specifically, even if

the Trial Court agreed with the State that Sterling adopted the statements by

Galindez by signing the Sterling Letter, the letter was hearsay. Particularly,

Sterling testified at the Reyes Rockford Park Trial that the information within the

Sterling Letter was learned by Sterling when Sterling overheard a conversation

between Reyes and Galindez.126 However, in September 2008 when private

investigators interviewed Sterling in Jamaica, Sterling stated that he learned details

of the Rockford Park Murders from Galindez directly and not by overhearing a

conversation between Galindez and Reyes.127 In other words, even though Sterling

claimed at the Reyes Rockford Park Trial that he had personal knowledge of the

contents of the Sterling Letter, Sterling did not have personal knowledge.

Accordingly, the Sterling Letter was hearsay, but this argument was not presented

for the Trial Court’s consideration. This failure reflected inadequate trial

preparation which was not reasonable performance under the circumstances

125 Id. at 37:1-12. 126 Guilt Phase Tr. Oct. 3, 2001 at 8:15-23; 9:1-21. 127 Reyes, 2012 WL 8256131, at *9. 41 especially, where, as here, Sterling was the only witness to link Reyes to the

Rockford Park Murders.

Moreover, Sterling may have signified adoption of Galindez’s writing, but

adoptive admissions are only considered non-hearsay as to parties. Neither

Galindez nor Sterling was a party in the Reyes Rockford Park Trial. Therefore,

Reyes Trial Counsel should have presented argument that the Sterling Letter was

hearsay if it was to be offered for the truth of its contents. Reyes Trial Counsel’s

failure to make this argument was unreasonable and Reyes has established the

performance prong of Strickland.

2. Reyes Trial Counsel’s failure to call Galindez as a witness was objectively unreasonable.

Reyes Trial Counsel was ineffective by failing to call Galindez as a witness.

Only Galindez could have challenged Sterling’s testimony, which was “the most

significant testimony” against Reyes.128

Sterling claimed that Sterling overheard and understood conversations

between Reyes and Galindez. However, if Galindez had testified, Galindez would

have demonstrated that Sterling’s claim was false because Sterling could not

possibly have understood any conversation between Galindez and Reyes. At trial,

Sterling testified that he did not speak Spanish and only understood Spanish “a

128 Reyes Sentencing, 2002 WL 484641, at *8. 42 little bit.”129 Sterling further testified that he heard the conversation between

Galindez and Reyes in English.130 However, in a 2012 affidavit, Galindez

provided:

[] While I was serving my sentence [at Gander Hill], I was on the same pod as Luis Reyes. [] Luis Reyes and I talked about a lot of things while we were on the same pod. [] When I spoke to Luis Reyes, I spoke to him in Spanish because at the time, I spoke very little English. [] At the time, my cell[mate] was Roderick Sterling. [] Roderick Sterling did not speak Spanish.131

Reyes Trial Counsel fell below an objective standard of reasonableness

when they failed to call Galindez as a witness. It was critical to challenge

Sterling’s claim that Sterling heard Reyes tell Galindez that Reyes participated in

the Rockford Park Murders. Accordingly, Reyes has established the performance

prong of Strickland.

3. Reyes Trial Counsel failed to request a missing evidence instruction.

The State never produced the Sterling Letter. Importantly, Reyes Trial

Counsel did not request a missing evidence instruction for the Sterling Letter. Had

Reyes Trial Counsel requested the instruction, the jury would have received the

standard DeBerry instruction, providing that the jury is to assume the missing

evidence is exculpatory for Reyes:

129 Guilt Phase Tr. Oct. 3, 2001 at 72:11-16. 130 Id. at. 75:3-9. 131 Aff. of Ivan Galindez, Nov. 28, 2012. 43 In this case, the Court has determined that the State failed to create or to preserve certain evidence, which is material to the defense. The failure of the State to create or preserve such evidence entitles the Defendant to an inference that, if such evidence were available at trial, it would be exculpatory. This means that, for purposes of deciding this case, you are to assume that the missing evidence, had it been created or preserved, would not have incriminated the Defendant, but would have been favorable to his assertion of not guilty.132

Reyes Trial Counsel’s performance fell below an objective standard of

reasonableness and Reyes has established the performance prong of Strickland.

4. Reyes Trial Counsel failed to notify the Court that presenting Cabrera as a witness was critical to Reyes’ defense.

Approximately one week before the Reyes Rockford Park Trial, Reyes Trial

Counsel received a letter from Cabrera who wanted to help Reyes, but not at the

expense of admitting his own guilt.133 Cabrera’s counsel subsequently advised

Reyes Trial Counsel that Cabrera would not be testifying on behalf of Reyes and if

Cabrera was called, he would invoke his Fifth Amendment privilege.134

Cabrera was a critical witness for Reyes’ defense. Had Cabrera been

available as a witness, Cabrera would have testified that Reyes was not responsible

for the Rockford Park Murders. Furthermore, Cabrera would have testified that a

man named Neil Walker had committed the murders. Additionally, Cabrera would

132 See, e.g., State v. Adgate, 2014 WL 3317968, at *5 (Del. Super. July 7, 2014); see also DeBerry v. State, 457 A.2d 744 (Del. 1983). 133 Letter from Luis Cabrera to Reyes Trial Counsel, Sept. 23, 2001. 134 Letter from John P. Deckers to Reyes Trial Counsel, Oct. 9, 2001. 44 have offered details about an altercation that involved Walker, Cabrera, Saunders,

and Rowe that gave a motive for Walker to commit the Rockford Park Murders.135

Under DRE 803(b)(3), statements against interest are those statements that

“at the time of its making, so far contrary to the declarant’s pecuniary or

proprietary interest, or so far tended to subject the declarant to civil or criminal

liability, or to render invalid a claim by the declarant against another, that a

reasonable person in the declarant’s position would not have made the statement

unless the declarant believed it to be true.” Statements against interest are

admissible when a declarant is unavailable to testify, which includes when a

declarant has invoked his Fifth Amendment privilege against self-incrimination.136

Moreover, “[a] statement tending to expose the declarant to criminal liability and

offered to exculpate the accused is not admissible unless corroborating

circumstances clearly indicate the trustworthiness of the statement.”137

135 Cabrera provided these details to Reyes Trial Counsel during an interview in March 2001. Reyes Trial Counsel also reviewed—prior to meeting with Cabrera—a report from an investigator who interviewed Cabrera for the Otero case in August 1997. The investigator’s report provided similar details, as recounted by Cabrera, regarding the altercation with Saunders, Rowe, and Walker. Importantly, Cabrera maintained the same account even after Reyes testified against Cabrera in the Otero case. 136 D.R.E. 804(a)(1); see also Demby v. State, 695 A.2d 1152, 1158 (Del. 1997) (noting that a witness was “unavailable” because he invoked his Fifth Amendment privilege). 137 D.R.E. 804(b)(3). In determining whether there are sufficient corroborating circumstances to indicate trustworthiness of an unavailable declarant’s statements, the Court considers: (1) whether the statements were made spontaneously and in close temporal proximity to the commission of the crime at issue; (2) the extent to which the statements were truly self- incriminatory and against penal interest; (3) consideration of the reliability of the witness who was reporting the hearsay statement; and (4) the extent to which the statements were corroborated by other evidence in the case. Demby v. State, 695 A.2d 1152, 1158 (Del. 1997). 45 Cabrera’s proposed statements about Reyes’ factual innocence met the

standard under DRE 803(b)(4) because the statements exposed Cabrera to criminal

liability and were contrary to Cabrera’s penal interests.138 Nevertheless, the Trial

Court did not rule on the admissibility of Cabrera’s statements during the Reyes

Rockford Park Trial because Reyes Trial Counsel did not even seek to admit the

statements.139 This was objectively unreasonable performance. Accordingly, the

performance prong of Strickland has been established.

5. The cumulative effect of Reyes Trial Counsel’s errors in the guilt phase of the Reyes Rockford Park Trial resulted in prejudice to Reyes.

It was imperative for Reyes Trial Counsel to make timely objections and

utilize appropriate impeachment and exculpatory evidence. The cumulative effect

of Reyes Trial Counsel’s errors during the guilt phase of the Reyes Rockford Park

Trial resulted in prejudice to Reyes. Accordingly, Reyes’ convictions must be

C. Reyes has established Ineffective Assistance of Counsel in the penalty phase of the Reyes Rockford Park Trial.

The Court finds that the errors by Reyes Trial Counsel in the penalty phase

of the Reyes Rockford Park Trial resulted in cumulative prejudice to Reyes.

138 Although Cabrera never admitted any involvement in the Rockford Park Murders, Cabrera’s statements were nevertheless incriminating. Cabrera’s statements were against Cabrera’s penal interests in that Cabrera admitted to purchasing drugs, unlawfully possessing a handgun, assaulting Rowe during a confrontation prior to the Rockford Park Murders, and assaulting Walker. 139 The Trial Court addressed Cabrera’s statements at a postconviction evidentiary hearing on August 28, 2012. See Evid. Hrg. Tr. Aug. 28, 2012 at 8:10-11; 15-20. 46 1. Reyes Trial Counsel was ineffective for failing to limit the presentation to the jury of Reyes’ role in the Otero murder.

Reyes Trial Counsel did not file a motion in limine, or otherwise argue, that

evidence regarding Reyes’ role in the Otero murder was inadmissible. As detailed

above,140 Reyes explained to the jury during his allocution that he wanted to testify

to profess his innocence during the guilt phase, but refrained from doing so to

avoid presentation of his role in the Otero murder.141 While no evidence of Reyes’

Otero conviction was admitted during the guilt phase of the Reyes Rockford Park

Trial,142 and would have been inadmissible during the guilt phase,143 the State’s

penalty phase opening statement immediately began with the murder of Otero by

Reyes.144 The State’s presentation also included details of the Otero murder,

including that Reyes physically held Otero down while Cabrera suffocated Otero

with a plastic bag, then Cabrera and Reyes took Otero’s body to New Jersey where

they disposed of Otero’s body in a dumpster and incinerated him.145 The State

140 See supra Section III(A). 141 Penalty Phase Tr. Oct. 25, 2001 at 96:3-11. 142 Reyes Sentencing, 2002 WL 484641, at *11 (noting that information regarding the murder of Otero was introduced during the penalty phase). 143 See e.g., D.R.E. 404(b) (providing that evidence of a defendant’s previous crime is inadmissible to prove a defendant’s the character or that a defendant acted in conformity with a crime. However, evidence of a defendant’s previous crimes is admissible for other purposes, including “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”); D.R.E. 609(a) (stating that a defendant’s previous convictions are only admissible for the purposes of impeachment when: (1) the previous conviction was a felony and the court determines that the probative value outweighs its prejudicial effect; or (2) the crime involves dishonesty or false statement). 144 Penalty Phase Tr. Oct. 23, 2001 at 12:19. 145 Id. at 12:23-14:7. 47 further explained to the jury that while Reyes could have received the death

penalty for the death of Otero, he was actually only sentenced to twelve years

because of a plea agreement.146 Then, Reyes Trial Counsel read a portion of the

transcript from Reyes’ Otero sentencing that included that Reyes participated in the

Otero murder because of Cabrera’s influence; Reyes fully cooperated in the

investigation into Cabrera; Reyes gave a detailed confession to the murder of

Otero; Otero’s daughter gave a “wrenching” testimony of dreaming of walking

down the aisle with her father; Otero’s “charred remains” were found in New

Jersey; and Reyes “physically was a principal in the murder by holding down Mr.

Otero.”147

“The record of any prior criminal convictions and pleas of guilty or pleas of

nolo contendere of the defendant or the absence of any such prior criminal

convictions and pleas shall also be admissible in evidence [during the penalty

phase].”148 However, even though Reyes’ conviction and guilty plea in connection

with the Otero murder were likely admissible during the penalty phase, Reyes Trial

Counsel should at least have made an effort to limit the presentation to the jury of

highly prejudicial details of the Otero murder on the basis that the danger of unfair

146 Id. at 15:2-7. 147 Penalty Phase Tr. Oct. 25, 2001 at 6:21-11:20. 148 11 Del. C. § 4209(c)(1). 48 prejudice substantially outweighed the probative value.149 Accordingly, Reyes has

established the performance and prejudice prongs of Strickland.

2. Reyes Trial Counsel’s representation with respect to mitigation during the penalty phase of the Reyes Rockford Park Trial was ineffective.

Reyes Trial Counsel was ineffective under the prevailing professional norms

because their mitigation presentation was based on an incomplete and inadequate

investigation that failed to consider Reyes’ youth and brain development.

Moreover, Reyes Trial Counsel missed crucial opportunities to rebut the State’s

presentation of aggravating factors. Reyes Trial Counsel presented a one-

dimensional, negative portrayal of Reyes in an effort to demonstrate to the jury that

Reyes never had a chance and, therefore, the strategy was “to focus on, instead of

the positive aspect of Luis Reyes, the negative things that happened to [Reyes] in

his life.”150 This presentation did not meet prevailing professional norms and was

prejudicial to Reyes.

a. The Standard for Mitigation in a Capital Case

The United States Supreme Court has recognized that defense counsel in a

capital case is “obligat[ed] to conduct a thorough investigation of the defendant’s

background.”151 In 1989, the American Bar Association promulgated guidelines

149 See D.R.E. 403. 150 Ev. Hrg. Tr. May 9, 2012 at 136:2–13. 151 Williams v. Taylor, 529 U.S. 362, 396 (2000). 49 for defense attorneys in capital cases (“ABA Guidelines”).152 Section 11.4.1 of the

ABA Guidelines provides:

A. Counsel should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase of a capital trial. Both investigations should begin immediately upon counsel’s entry into the case and should be pursued expeditiously.

B. The investigation for preparation of the guilt/innocence phase of the trial should be conducted regardless of any admission or statement by the client concerning facts constituting guilt.

C. The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.

The ABA Guidelines serve to “enumerate the minimal resources and

practices necessary to provide effective assistance of counsel.”153 Although failure

to follow the ABA Guidelines is not tantamount to ineffective assistance of

counsel per se;154 the ABA Guidelines set a standard for evaluation of Reyes Trial

Counsel’s representation regarding its mitigation investigation.155 According to the

ABA Guidelines, defense counsels’ “duty to investigate is not negated by the

152 See Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989) (hereinafter ABA Guidelines). 153 Id. (emphasis added). 154 State v. Taylor, 2010 WL 3511272, at *17 (Del. Super. Aug. 6, 2010) (“Neither the United States Supreme Court nor the Delaware Supreme Court has held that failure to meet the ABA Guidelines in legally tantamount to ineffective assistance of counsel.”). 155 Strickland, 466 U.S. at 688 (“Prevailing norms of practice as reflected in the [ABA Guidelines] and the like . . . are guides to determining what is reasonable.”). 50 expressed desires of a client. Nor may [defense] counsel sit idly by, thinking that

the investigation would be futile. The attorney must first evaluate the potential

avenues of action and then advise the client on the merits of each.”156 Moreover,

the ABA Guidelines suggest that the mitigation investigation “should comprise

efforts to discover all reasonably available mitigating evidence and evidence to

rebut any aggravating evidence that may be introduced by the [State].”157 The

ABA Guidelines recommend obtaining the following sources for investigative

information: all charging documents;158 information from the accused concerning

the incident relating to the offense charged;159 and records—including but not

limited to—medical records, birth records, school records, employment and

training records or reports, family and social history, prior records, and religious or

cultural influences.160 The ABA Guidelines further suggest obtaining the names of

sources to contact for verification of the information in the collected records.161

b. Reyes Trial Counsel’s mitigation strategy was not based on a reasonable mitigation strategy and instead was counterproductive by presenting Reyes as a man with inevitable propensity for violence.

Reyes Trial Counsel pursued a mitigation strategy that compared Reyes’

background with the findings of a report issued in April 2000 by the Office of

156 ABA Guidelines, supra note 152 at § 11.4.1, cmt. (internal quotation omitted). 157 Id. at § 11.4.1(C) (emphasis added). 158 Id. at § 11.4.1(D)(1)(A)–(C). 159 Id. at § 11.4.1(D)(2)(B). 160 Id. at § 11.4.1(D)(2)(C). 161 Id. at § 11.4.1(D)(2)(E). 51 Juvenile Justice and Delinquency Prevention of the United States Department of

Justice (“Youth Violence Report”).162 The Youth Violence Report, Predictors of

Youth Violence, identified risk factors that “confidently predict which youth would

be prone to commit violent acts.”163 The Youth Violence Report identified

violence-predicting risk factors within each of five domains: individual factors,

family factors, school factors, peer-related factors, and community and

neighborhood factors.164 According to the Youth Violence Report “[t]he risk of

violence is also compounded by the number of risk factors involved [with the

youth].”165 Reyes Trial Counsel presented to the jury that the characteristics and

life of Reyes closely matched the Youth Violence Report risk criteria, which

demonstrated Reyes’ potential for future violence.166 As Reyes Trial Counsel

explained at the postconviction evidentiary hearing:

And I think we decided that . . . was going to be the strategy to say, do you know what, instead of saying what a good guy . . . [Reyes] was or how responsible [Reyes] was, that what we were focusing on was - - as I sit here, this is my recollection - - what a pretty lousy childhood [Reyes] had and how the cards were stacked against [Reyes]. And

162 Office of Juvenile Justice & Delinquency Prevention, U.S. DOJ, Predictors of Youth Violence, Juvenile Justice Bulletin (April 2000) (hereinafter Youth Violence Report). 163 Id. at 1. 164 Id. at 2. The Youth Violence Report also identified situational factors, which are “circumstances that surround a violent event and influence the outcome of that event.” Id. at 5 (providing that situational factors may include “consumption of alcohol or other drugs by the offender or victim, the behavior of bystanders, the motives of the offender” but noting that such situational factors are “difficult to assess”). 165 Id. at 7 (“The larger the number of risk factors to which an individual is exposed, the greater the probability that the individual will engage in violent behavior.”). 166 Ev. Hrg. Tr. May 9, 2012 at 122:17–123:1, 124:12–18. 52 [Reyes] met most of the risk factors for that [Youth Violence Report], which would indicate tendency for violence or future violence.167

i. Dr. Caroline Burry’s testimony focused on Reyes’ amenability to violence and was based on a cursory investigation.

Reyes Trial Counsel hired Dr. Caroline Burry as a mitigation specialist to

assist with the mitigation investigation. According to Dr. Burry, Reyes Trial

Counsel specifically hired Dr. Burry to “determine the factors and events in

[Reyes’] developmental, family, and/or social history which may have influenced

his subsequent functioning as an adult.”168 The majority of Dr. Burry’s mitigation

investigation consisted of twenty (20) hours of interviews.169 Specifically, in

addition to interviewing Reyes, Dr. Burry interviewed: (1) Reyes’ mother, Ruth

Reyes, (2) Reyes’ grandmother, Candida Reyes, (3) Reyes’ aunts, Luz Diaz and (4)

Damarias Reyes, (5) Reyes’ girlfriend/fiancé, Elaine Santos, (6) Reyes’ daughter,

Desiree Reyes, and (7) Reyes’ stepson, Raymond Sanchez.170 Dr. Burry also

reviewed family photographs and Reyes’ presentencing investigation report (“PSI

Report”). Dr. Burry compiled her findings in an informal document titled Draft of

Dr. Caroline Burry Personal Notes (“Dr. Burry Notes”).171

167 Id. at 120:9–121:1–2. 168 See Dr. Caroline Burry Draft of Personal Notes (Aug. 27, 2001), Reyes App. 4, (hereinafter Dr. Burry Notes). 169 Id.; Penalty Phase Tr. Oct. 24, 2001 at 96:4–8, 96:14. 170 Dr. Burry Notes supra n.168; Penalty Phase Tr. Oct. 24, 2001 at 96:4–8, 96:14. 171 See Dr. Burry Notes supra n.168. 53 During the penalty phase, Dr. Burry testified on behalf of Reyes as an expert

in family assessment. To explain her findings to the jury, Dr. Burry created a

genogram172 that showed four generations of Reyes’ family and identified

repetitive themes throughout the family.173 Dr. Burry testified that Reyes’

genogram contained repetitive themes of criminal history, substance abuse, and

relationships Reyes’ mother had with “substitute father figure[s].”174 Moreover,

Dr. Burry testified that the father role in Reyes’ life was later filled by Cabrera.175

Dr. Burry testified that, in her professional opinion, “Reyes’ family history

reveal[s] a number, in fact, a strikingly large number of risk factors predictive of

violence.”176 Indeed, Dr. Burry presented to the jury a number of charts that

highlighted the factors indicated in the Youth Violence Report and the applicability

of each factor as to Reyes. Dr. Burry testified that Reyes had been exposed to

twenty out of twenty-seven risk factors identified by the Youth Violence Report.

Specifically, Reyes experienced five out of the eight individual risk factors; all

seven of the family risk factors; all four of the school risk factors; one of the three

peer-related factors; and three out of the five community and neighborhood risk

172 “The genogram is [the] social work term for a family tree . . . . geno meaning generations and gram meaning written.” Penalty Phase Tr. Oct. 24, 2001 at 98:1–3. 173 Id. at 100:4–21. 174 Id. at 100:22–101:14; 104:12–105:3. 175 Id. at 135:14–21. 176 Id. at 107:16–18. 54 factors.177 Dr. Burry also elaborated on the risks associated with having a teen

mother, noting that Reyes’ mother was sixteen when she gave birth to Reyes.

Dr. Burry noted that a full assessment of a youth requires consideration of

protective factors, which are factors that “may help to balance against risk[,]”

because “even a child out of a negative background might still do well if he or she

has a number of strong protective factors.”178 In this case, Dr. Burry testified that

out of four groups of factors, which each contain multiple protective factors, Reyes

qualified for only two protective factors.179 Dr. Burry provided that it was her

professional opinion “that Reyes had numerous risk factors and very few protective

factors . . . particularly at the individual and family level, [and] that [Reyes] was at

very high risk and did in fact become dangerous.”180

In addition to this Court’s concern with the counterproductive presentation

of Dr. Burry’s testimony that Reyes was seemingly inevitably violent, this Court is

also concerned with the adequacy of Dr. Burry’s mitigation investigation as it

relates to the information obtained through a limited number of interviews from

one narrow source – relatives. Even though Dr. Burry presented a genogram

177 Id. at 119:6–127:5. 178 Id. at 130:9–131:1. 179 First, Reyes was socially bonded to his high school; and second, Reyes was subject to early intervention because he attended pre-school. See Penalty Phase Tr. Oct. 24, 2001 at 131:2– 135:13 (explaining that Reyes lacks intelligence, social orientation, a resilient temperament, a pro-social family, and exposure to parental values and standards of no violence and/or the promotion of abstinence from drugs). 180 Id. at 136:7–12 (emphasis added). 55 addressing four-generations of Reyes’ family, Dr. Burry conducted interviews with

only seven of Reyes’ family members.

This Court is also concerned with the limited scope of records that Dr. Burry

reviewed. Dr. Burry testified that she obtained her information to compile Reyes’

social history from her interviews, the materials within Reyes’ PSI Report, and

family photographs.181 Dr. Burry wanted more records to review; she noted:

“Information needed: 1. Criminal records on the entire family [and] 2. Medical

records.”182 Dr. Burry never obtained any of these records.183 Accordingly, the

information presented was inadequate and insufficient.

Dr. Burry’s narrow set of investigative sources is troubling. Dr. Burry was

retained to complete a social history of Reyes; however, a mitigation investigation

should be broader than social information. Mitigation investigations should

include the discovery of “all reasonably available mitigating evidence and

evidence to rebut any aggravating evidence that may be introduced[.]” 184 It is

ineffective for defense counsel to abandon an investigation after gathering

“‘rudimentary knowledge of [the defendant’s] history from a narrow set of

sources.’”185 This is because such a cursory mitigation investigation makes it

181 See id. at 96:1–11. 182 Dr. Burry Notes, supra note 168. 183 Ev. Hrg. Tr. May 9, 2012 at 125:16–126:8. 184 ABA Guidelines, supra note 152 at § 11.4.1(C). 185 Ploof v. State, 75 A.3d 840, 852 (Del. 2013) (quoting Wiggins v. Smith, 539 U.S. 510, 524 (2003)). 56 impossible for defense counsel to make a fully informed decision with respect to a

mitigation strategy.186

Moreover, “[i]n assessing the reasonableness of an attorney’s investigation,

however, a court must consider not only the . . . evidence already known to counsel

but also whether the known evidence would lead a reasonable attorney to

investigate further.”187 Here, the information Dr. Burry began to uncover during

her limited mitigation investigation—family drug abuse, physical and verbal abuse,

and child abandonment—is exactly the type of information that would lead

reasonable attorneys to pursue additional mitigation investigation.188 The failure to

do so did not meet prevailing professional norms.

ii. Dr. Harris Finkelstein’s testimony offered a rudimentary explanation for Reyes’ behaviors and relied on Dr. Burry’s cursory investigation and Reyes’ unsubstantiated self-report.

Dr. Harris Finkelstein testified during the penalty phase as an expert in the

field of psychology. Reyes Trial Counsel retained Dr. Finkelstein to “determine

some type of insight into . . . what would contribute to [Reyes] doing the kinds of

186 Wiggins, 539 U.S. at 527–28. 187 Id. at 527. 188 See id. at 523–25 (finding defense counsel’s mitigation investigation fell short of professional standards where it relied only on the defendant’s PSI and records from social services regarding defendant’s time in foster care, which provided that defendant’s mother was a chronic alcoholic; defendant was transferred from foster home to foster home and displayed emotional difficulties; defendant had frequent, lengthy absences from school; and, on at least one occasion, defendant’s mother left him and his siblings alone for days without food). 57 behaviors which at that point [Reyes] was accused of and later convicted of.”189

Dr. Finkelstein testified as to his opinion on Reyes’ psychological adjustment,

which he explained as the “clear end point in terms of a person’s behavior . . . .

[and how to] understand those kinds of behaviors . . . . not necessarily excusing the

behavior, [but] simply trying to explain it [to] reach a deeper level of

understanding.”190 In forming his opinion, Dr. Finkelstein performed a limited

review, including an interview of Reyes for a total of four hours during which Dr.

Finkelstein conducted projective psychological tests, and a review of a report

prepared by court personnel in connection with sentencing, as well as other records

kept by the various courts.191

Dr. Finkelstein explained that Reyes tends to think of himself in two divided

psychological standpoints.192 According to Dr. Finkelstein, these two

psychological standpoints are in conflict and, as a result of this conflict, Reyes

became “dependent upon the validation and affirmation of other people who are

important to him.”193 As an example, Dr. Finkelstein explained that Reyes’

success in high school wrestling earned him the support and recognition that fed

into Reyes’ positive self-concept and helped him make good choices. Dr.

189 Penalty Phase Tr. Oct. 24, 2001 at 150:17–20. 190 Id. at 163:13–164:2. 191 Id. at 160:22–163:10. 192 According to Dr. Finkelstein, on one hand, Reyes appears to feel quite good about himself, thinks he is capable, and carries himself in a confident fashion. On the other hand, Reyes carries significant self-doubt and sees himself as someone who simply cannot succeed. 193 Penalty Phase Tr. Oct. 24, 2001 at 164:22–165:1. 58 Finkelstein also explained that Reyes’ home life and background pulled Reyes to

his more withdrawn, hopeless, and despondent side.194

Finally, Dr. Finkelstein addressed Reyes’ relationship with Cabrera to

demonstrate the complexities of Reyes’ divided psychological self-perception.

According to Dr. Finkelstein, Cabrera provided Reyes with an important source of

support and validation that Reyes desired but the “dilemma was when Cabrera

started to give [Reyes] validation that was in part based on [Reyes] being able to

win [Cabrera’s] support by doing very, very awful things.”195 Moreover, Dr.

Finkelstein offered an opinion that Reyes possessed impulsive tendencies and may

have suffered from Attention Deficit Hyperactivity Disorder (“ADHD”). Dr.

Finkelstein explained that Reyes was someone with “narcissistic vulnerability”

whose background created “somebody who is very much compromised in terms of

their abilities to use other people [for support or advice], compromised in terms of

decision-making abilities and [somebody] . . . very much in conflict over how to

sustain good feelings about himself.”196

Decisional law mandates that defense counsel’s strategic decisions properly

involve consideration of the defendant’s own statements, actions, and

194 See id. at 165:8–11:7. 195 Id. at 166:8–15. 196 Id. at 170:10; 166:15–169:11, 169:16–20. 59 preferences;197 however, the mitigation investigation should not be limited to the

degree of information offered by the defendant as to his own past.198 Nevertheless,

during cross-examination at the Reyes Rockford Park Trial, Dr. Finkelstein

conceded that his testimony represented mere opinions as to Reyes’ psychological

adjustment more than true medical diagnoses because Dr. Finkelstein’s

conclusions were “based mostly on the defendant[’s] data utilizing just a few

selected points from history.”199

Dr. Finkelstein further explained that he did not review any of Reyes’

medical or school records, and that he did not have conversations with any of

Reyes’ family members. Rather, Dr. Finkelstein reviewed only a brief version of

facts presented to him by Reyes Trial Counsel and Dr. Burry. Indeed, Dr.

Finkelstein testified that he did not necessarily have full confidence that he

received “all the matters about [Reyes’] factual history.”200

197 Strickland, 466 U.S. at 691. 198 See Porter v. McCollum, 558 U.S. 30, 40 (2009) (the United States Supreme Court explained that a “fatalistic or uncooperative [client] . . . does not obviate the need for defense counsel to conduct some sort of mitigation investigation.”); see also Rompilla v. Beard, 545 U.S. 374, 381- 83, 89–90 (2005) (determining that the defense counsel’s mitigation investigation was deficient notwithstanding the defendant’s minimal contributions and unwillingness to address his past and providing “[n]o reasonable lawyer would forgo examination of the file[s] thinking he could do as well by asking the defendant or family[,]” despite knowing that the State intends to introduce prior convictions and damaging testimony). 199 Penalty Phase Tr. Oct. 24, 2001 at 194:9–13. 200 Id. at 178:16–179:16. 60 It was the responsibility of Reyes Trial Counsel to make this information

available for a complete review. The failure to provide the information necessary

for Dr. Finkelstein to act as an effective witness for Reyes was unreasonable.

iii. Reyes Trial Counsel failed to contact mitigation witnesses.

Reyes Trial Counsel presented only three family members on behalf of

Reyes during the penalty phase. Candida Reyes, Reyes’ grandmother, testified

regarding her relationship with Reyes as well as Reyes’ difficult childhood without

a father and with a mother who was always partying.201 Elaine Santos, Reyes’

fiancé/girlfriend and mother of Reyes’ two children, testified that Reyes supported

their family financially and emotionally and that Reyes had a close relationship

with his children.202 Reyes’ stepson, Raymond Sanchez, described his relationship

with Reyes and said that he (Raymond) “would not feel good” if he could no

longer see Reyes.203

Presentation of three family members was inadequate for the jury to have a

complete picture of Reyes. Many additional witnesses were available to discuss

Reyes’ dysfunctional upbringing, as well as Reyes’ leadership skills developed on

the wrestling team and his ability to act as a role model for the younger wrestlers

on the team.

201 See id. at 216:11–234:23. 202 See id. at 19:13–32:2. 203 See id. at 32:20–38:13. 61 First, Reyes Trial Counsel failed to call George Lacsny, a teacher at Reyes’

high school and Reyes’ wrestling coach. At the postconviction evidentiary

hearing, Mr. Lacsny testified that he does not think Reyes Trial Counsel ever

contacted him to testify at the Reyes Rockford Park Trial because, as he stated, “If

they did, I said I would.”204 Second, Reyes Trial Counsel failed to call Victor

Reyes (of no relation to defendant Reyes), Reyes’ wrestling coach during the 1995-

1996 winter wrestling season.205 Third, Reyes Trial Counsel failed to call Kathleen

Corvelli-Reyes (Victor Reyes’ wife and no relationship to Reyes) who became

close with Reyes as a result of her husband’s coaching. Although Ms. Corvelli

met Reyes Trial Counsel before the Reyes Rockford Park Trial, they did not ask

her to testify.206 At the evidentiary hearing, Ms. Corvelli stated that she would

have testified on behalf of Reyes.207 Fourth, Reyes Trial Counsel failed to call

Paul Perets, a teacher, band director, and timekeeper for the wresting team at A.I.

DuPont High School. These additional witnesses would have allowed the jury an

understanding of Reyes as a high school student and successful wrestler. 204 Ev. Hrg. Tr. Sept. 29, 2012 at 23:18–23. 205 Victor Reyes admitted that in December 1996, after Reyes had graduated high school, Victor was charged with third degree sexual assault. Pedersen–of Reyes Trial Counsel–represented Victor on the charges and in June 1997, Victor resolved the charges by entering a plea. Reyes Trial Counsel did not contact Victor to testify on Reyes’ behalf at the Reyes Rockford Park Trial, but Victor provided that he would have testified if contacted. Victor opined that his own personal problems distracted him from paying better attention to Reyes and that “if I would ha[ve] been a little more involved - - I mean, at that time, that was my life, that was my job . . . and I should have known better. If I would have got a little bit more involved, I don’t think we would be here now.” 206 Ev. Hrg. Tr. May 10, 2012 at 61-63. 207 Id. at 63. 62 At the postconviction evidentiary hearing, Reyes Trial Counsel maintained

that some of Reyes’ Otero supporters were not interviewed because the strategy

was “to focus on, instead of the positive aspect of Luis Reyes, the negative things

that happened to [Reyes] in his life.”208 Reyes Trial Counsel did admit, however,

that they “probably would have or should have” presented to the jury any and all

credible admissible evidence that was supportive of their presentation of Reyes’

dysfunctional childhood.209 Moreover, Reyes Trial Counsel admitted that Ms.

Covelli should have been called as a mitigation witness and, in fact, there was no

excuse not to do so.210

Reyes Trial Counsel did not meet prevailing professional norms and their

strategy was not based on an adequate investigation. Under the applicable

decisional law, the deference owed to Reyes Trial Counsel’s mitigation strategy

depends on the adequacy of the mitigation investigation supporting their

strategy.211 A strategy that is based on a “‘thorough investigation of law and facts

relevant to plausible [mitigation] options [is] virtually unchallengeable[.]’”212

Here, Reyes Trial Counsel did not perform a thorough investigaiton.

Certain mitigation strategies may limit the scope of the mitigation

investigation as long as defense counsel reasonably decides that “‘particular 208 Ev. Hrg. Tr. May 9, 2012 at 136:2–13. 209 Id. at 158:13–23. 210 Id. at 164:8–167:16. 211 Wiggins, 539 U.S. at 521. 212 Id. (citing Strickland, 466 U.S. at 690–91). 63 investigations [are] unnecessary.’”213 A decision not to investigate further must be

assessed for reasonableness in light of all the circumstances.214 Here, it was not

reasonable to limit the investigation. For instance, in Williams v. Taylor, the

United States Supreme Court concluded, under Strickland, that defense counsel

could not justify its failure to uncover and present certain mitigation evidence as a

strategic decision because defense counsel failed to “fulfill their obligation to

conduct a thorough investigation of the defendant’s background” to support such a

strategy.215 The reasoning of Williams is applicable here and supports a finding

that the investigation was inadequate.

Accordingly, the question for this Court is not whether Reyes Trial Counsel

should have presented more mitigating evidence in support of its mitigation

strategy.216 Rather, the question is whether reasonable judgment supported the

extent of Reyes Trial Counsel’s mitigation investigation. This Court finds that

Reyes Trial Counsel’s mitigation strategy was not reasonable, was not based on a

proper investigation, and was counterproductive.

213 Id. (citing Strickland, 466 U.S. at 690–91). 214 Id. at 521–22. 215 Williams v. Taylor, 529 U.S. 362, 395–96 (2000). 216 Outten v. Kearney, 464 F.3d 401, 416–19 (3d Cir. 2006); Wiggins, 539 U.S. at 521–23. 64 c. The jury did not have the opportunity to consider mitigating evidence regarding Reyes’ adolescent brain functioning.

There was extensive mitigating evidence that Reyes Trial Counsel would

have uncovered if a proper mitigation investigation was undertaken.

i. Dr. Jonathan Mack determined Reyes had limited executive functions.

In connection with the postconviction motion, Rule 61 Counsel retained Dr.

Jonathan Mack, a forensic psychologist and neuropsychologist. Dr. Mack testified

at a postconviction hearing as a defense expert in the study of the relationship

between brain function and behavior. Dr. Mack testified generally that the

executive functions of the brain are the last to develop and that the frontal lobes are

not mature until age twenty–five.217

Dr. Mack conducted a neuropsychological and psychological evaluation of

Reyes in 2007, when Reyes was twenty-nine years old, to determine Reyes’

executive function sequencing and mental flexibility.218 With respect to Reyes’

executive functions, Dr. Mack testified that Reyes’ abilities fell in the sixth (6th)

percentile among the general population and Reyes suffered mildly to moderately

impaired executive functioning.219 With respect to mental flexibility, Dr. Mack

testified that, based on Reyes’ score, which placed Reyes in the eighth (8th)

217 Ev. Hrg. Tr. Aug. 27, 2012 at 34:5–10; see also Roper, 543 U.S. 551 (discussing the executive functions of the brain in extensive detail). 218 Ev. Hrg. Tr. Aug. 27, 2012 at 8:16–10:1, 34:21–23. 219 Id. at 35:8–13. 65 percentile, Reyes demonstrated definite mental impairment.220 Dr. Mack also

testified that he concluded that Reyes’ full scale IQ—also known as Reyes’ overall

intellectual ability—was in the eighteenth (18th) percentile, which is the low

average range.221 Upon consideration of Reyes’ records, test results, and a clinical

interview of Reyes, Dr. Mack determined that, even at age twenty-nine, Reyes

demonstrated difficulties with “nonverbal problem solving, abstract reasoning,

concept formation and mental flexibility” and that Reyes’ executive functions

would have been worse in 1996, when Reyes was seventeen and eighteen years

old.222

The jury in the Reyes Rockford Park Trial did not have the opportunity to

consider the expert opinion of Dr. Mack or any other expert in this field. Reyes

Trial Counsel should have presented this or similar mitigating evidence to the jury

in deciding whether to recommend a death sentence for Reyes. The failure to

develop this mitigating evidence fell short of objectively reasonable performance

standards.

ii. Dr. Dewey Cornell determined that Reyes’ brain damage had significance for Reyes’ relationship with Cabrera.

In connection with these postconviction proceedings, Dr. Dewey Cornell

was retained as a forensic psychologist focused on the assessment of psychological

220 Id. at 35:18–22. 221 Id. at 21:17–19, 23:5–6; see Ev. Hrg. Tr. April 24, 2013 at 27:5–10. 222 Ev. Hrg. Tr. Aug. 27, 2012 at 36:10–37:1. 66 evidence for the use in legal–decision making. Dr. Cornell conducted a six hour

clinical interview of Reyes and interviewed Reyes’ mother, Ruth Reyes; Reyes’

Aunt, Luz Diaz; Reyes’ cousin, Debbie Diaz; and Reyes’ girlfriend/fiancé, Elaine

Santos. In addition, Dr. Cornell interviewed Kathy Covelli-Reyes; the Skinners;

and reviewed the relevant court proceedings and expert reports for a postconviction

evidentiary hearing.

At a postconviction evidentiary hearing, Dr. Cornell testified that a

neuropsychological evaluation on Reyes should have been conducted before the

Reyes Rockford Park Trial because there were several indicators of brain

dysfunction, prenatal marijuana exposure, teen drug use, and being held back in

elementary school.223 Dr. Cornell noted Reyes’ significant “psychological

dependency on [] Cabrera as magnified by his cognitive impairment and

maturity.”224 In Dr. Cornell’s opinion, Reyes’ mild brain damage, as diagnosed by

Dr. Mack, coupled with Reyes’ incomplete prefrontal cortex development was

significant because:

The young man who does not have the even normal 18-year-old capacity to reflect on consequences of his actions, to separate himself from what other people are telling him to do, sort of use ordinary judgment that would lead you to act more independently rather than dependently on an authority figure or a person that you depend on.225

223 Ev. Hrg. Tr. Aug. 2, 2013 at 22:5–23:1. 224 Id. at 44:12–14. 225 Id. at 21:16–22. 67 This would have been powerful and important information for the jury to

understand Reyes’ relationship with Cabrera. Reyes Trial Counsel’s failure to

develop this evidence fell short of reasonable performance.

iii. Dolores Andrews testified that Dr. Burry’s mitigation investigation was incomplete and it could have had an effect on the jury.

Dolores Andrews, a clinical social worker who works as a mitigation

specialist, particularly in capital cases, was retained in connection with the

postconviction proceedings. Ms. Andrews interviewed Reyes; Reyes’ mother,

Ruth Reyes; his aunts, Demaris and Luz Reyes; his cousin, Debra Diaz; and other

non–family members, including employees of A.I. DuPont High School. Ms.

Andrews authored a report with her findings. At a postconviction evidentiary

hearing,226 Ms. Andrews testified about Reyes’ childhood, including Ruth’s drug

use and attempted abortions during her pregnancy with Reyes; Ruth’s substance

abuse; Ruth’s general inability to parent Reyes; Ruth’s use of corporal punishment

on Reyes; the absence of Reyes’ biological father; and Reyes’ exposure to

prostitution, drug use, and drug sales.

Ms. Andrews was critical of Dr. Burry’s investigation and provided that both

Reyes Trial Counsel and Dr. Burry’s investigation were incomplete. Ms. Andrews

testified that there were various mitigating factors that were underdeveloped during

the penalty phase of the Reyes Rockford Park Trial, including Reyes’ exposure to

226 Ms. Andrews’ complete testimony is contained in: Ev. Hrg. Tr. Aug. 2, 2012 at 80:11-152:3. 68 emotional and physical abuse; Candida’s ability to parent or care for Reyes

considering her age, and physical and mental health; Reyes’ exposure to child

endangerment and criminal activity from his uncle Michael Reyes; the extent of

Ruth’s drug addiction; the fact that despite of Reyes’ unfortunate upbringing, “he

tried his best to engage in lawful behavior, to be a productive citizen, to take care

of himself, particularly when he had to[,]” such as keeping gainful employment;227

Ruth’s incarceration; and the impact Reyes’ execution would have on members of

his family.

Ms. Andrews explained that there were a number of mitigating factors that

were completely ignored, including Reyes’ family’s difficulty in assimilating to a

new country; the lack of Reyes’ biological paternal family’s involvement in Reyes’

life; Ruth’s attempted abortions while pregnant with Reyes; and Reyes’ difficulty

in finding an attachment with Ruth. When Reyes Rule 61 Counsel asked Ms.

Andrews why it was significant that a comprehensive presentation be made for the

jury with respect to Reyes’ life, Ms. Andrews testified:

Because the mitigation report and the mitigation phase addresses the penalty phase, and originally with what the jury knew then, three people had voted to save his life. Had they known more, had these 12 jurors known more, maybe more would have voted, perhaps all, to save his life. That is what this is in pursuit of humanizing him, putting Luis Reyes in a context that people will understand what his life was about, not simply what he is accused of and charged with. 228

227 Id. at 120:16 228 Id. at 124:2–12 (emphasis added). 69 Reyes Trial Counsel did not present a comprehensive mitigation case for the

jury’s consideration. Even without a more rigorous presentation, three jurors voted

for a life sentence. The failure to present a mitigation specialist such as Ms.

Andrews did not meet prevailing professional norms.

d. Reyes suffered prejudice as a result of Reyes Trial Counsel’s deficient mitigation presentation.

Defense counsel in capital cases have an obligation to conduct a thorough

investigation for the purposes of sentencing and mitigation. 229 Per decisional law

and the ABA Guidelines, this obligation involves efforts to discover all reasonably

available mitigating evidence.230 Reyes Trial Counsel failed to properly satisfy

counsel’s obligations. Instead, the mitigation presentation was deficient and

counterproductive by presenting Reyes as an individual “hard wired for violence.”

At best, Reyes Trial Counsel’s performance left the jury with an incomplete

profile and understanding of Reyes, his background, and his mental functioning.

At worst, Reyes Trial Counsel’s deficient performance actually served to

dehumanize Reyes and to portray him as violent. The jury was not given a fair

opportunity to assess Reyes’ culpability for the Rockford Park Murders because

the jurors did not hear complete or sufficient testimony regarding Reyes’ youth,

mental development, abusive, dysfunctional upbringing, and the extent of Reyes’

229 See supra Section V(C)(2)(a) for the legal standard for mitigation in a capital case. 230 Wiggins, 539 U.S. at 524 (emphasis in original); ABA Guidelines, supra note 152, 11.4.1(C). 70 susceptibility to Cabrera as a father figure. Accordingly, Reyes suffered prejudice

as a result of the substandard performance of Reyes Trial Counsel.

3. Reyes Trial Counsel failed to object to prosecutorial misconduct.

The prosecutor, on behalf of the State, made improper comments during the

penalty phase of the Reyes Rockford Park Trial, denying Reyes his right to a fair

and impartial trial as guaranteed by the United States and Delaware

Constitutions.231 Reyes Trial Counsel was ineffective for failing to protect Reyes

from the prosecutorial misconduct (i.e., failing to object to the State’s remarks

during the Reyes Rockford Park Trial). Moreover, Reyes Trial Counsel was

ineffective for failing to assert these claims on direct appeal, thereby limiting

Reyes’ relief to the more stringent Strickland standard of review in these

postconviction proceedings.232 Moreover, because Reyes’ constitutional

challenges were not presented below, those claims are subject to procedural default

under Rule 61(i)(3) unless Reyes can demonstrate cause and prejudice or a

colorable claim of a constitutional violation.233

231 U.S. CONST. amend. VI; DEL. CONST. Art. I § 7; Flonnory v. State, 778 A.2d 1044, 1051 (Del. 2001) (noting that the right to a fair trial before an impartial jury is a bedrock of the American criminal justice system). 232 Notably, despite acknowledging that his postconviction claims are subject to review under Strickland, Reyes focuses the majority of his argument on the grounds that he is entitled to relief under the Wainwright/Hughes standards, which are applicable on direct appeal. 233 Super. Ct. Crim. R. 61(i)(3)(A)–(B); (i)(5); Hainey v. State, 2008 WL 836599, at *1 (Del. Mar. 31, 2008). 71 Reyes’ claims of prosecutorial misconduct will be addressed on the merits as

an ineffective counsel claim. Although the prosecution operates within an

adversarial system, prosecutors must seek justice, not merely convictions.234 In the

role of “minister of justice,” prosecutors must “avoid improper suggestions,

insinuations, and assertions of personal knowledge in order to ensure that guilt is

decided only on the basis of sufficient evidence.”235 Pursuant to ABA Standard 3-

5.8(d), “[t]he prosecutor should refrain from argument which would divert the jury

from its duty to decide the case on the evidence.” Moreover, the conduct of a

prosecutor is of particular importance during the penalty phase of a capital trial.

This is “because of the possibility that the jury will give special weight to the

prosecutor’s arguments . . . because of the prestige associated with the prosecutor’s

office.”236 Ultimately, the trial judge determines whether the defendant will live or

die only after giving substantial weight to the jury’s recommendation.237 As such,

the “jury’s recommendation is significant, and therefore the conduct of the penalty

phase hearing must be conducted fairly.”238

234 ABA Standards, Prosecution and Defense Functions, 3-1.2(c) (“The duty of the prosecutor is to seek justice, not merely to convict.”); Whittle v. State, 77 A.3d 239, 246 (Del. 2013) (reiterating the special weight juror’s give to the prosecutor’s arguments); Brokenbrough v. State, 522 A.2d 851, 855 (Del. 1987). 235 Kirkley v. State, 41 A.3d 372, 377 (Del. 2012); Trump v. State, 753 A.2d 963, 968 (Del. 2000). 236 ABA Standards, Prosecution and Defense Functions, 3-5.8, commentary (3ed. 1993). 237 Capano v. State, 781 A.2d 556, 656 (Del. 2001) (citing 11 Del. C. § 4209). 238 Id. (emphasis added). 72 a. The State’s “unpunished murder” comments were objectionable.

The State’s argument to the jury that a life sentence for Reyes would leave

one of the Rockford Park Murders unpunished was objectionable; yet Reyes Trial

Counsel did not object. First, the State’s argument was a misleading misstatement

of law. Second, the State’s argument was an improper plea for vengeance.

Specifically, in its penalty phase opening statement, the State remarked:

It [the death of two or more individuals] is a significant statutory aggravating circumstance. Because if [Reyes] should be sentenced to life imprisonment for the murder of one of the two victims in this case, either Vaughn Rowe or Brandon Saunders, [Reyes] has only one life to serve. And for the murder of the other [victim] he will receive no punishment.

Oh, the [Trial J]udge would sentence [Reyes] to life without parole, just as [the Trial Judge] would for the other [victim], but the practical effect of that would be [Reyes] would receive no punishment for the second murder he committed in this case.239

Additionally, in the State’s closing argument, the State improperly

emphasized the “practical” effect—rather than the “legal” effect—of

recommending a life sentence:

[A]s you [the jurors] know, as was true with Brandon [Saunders] and with Vaughn [Rowe], [Reyes] only has one life to give. So that second life sentence for the second murder of the two murders [Reyes] committed on January 21, 1996, is essentially a meaningless punishment. If you [the jurors] do not recommend the death penalty in this case; your Honor, if you do not impose the death penalty in this

239 Penalty Phase Tr. Oct. 23, 2001 at 16:12–22 (emphasis added). 73 case, one of those two murders will go unpunished. Justice, ladies and gentlemen, demands that every crime be punished.240

When you convict someone of two murders, if you impose a life sentence for the first murder[,] because we each have but one life to give, there is no real punishment for that second murder.241

I ask you this ladies and gentlemen, [Trial Judge], whose murder will go unpunished? Will it be Brandon’s? Or Vaughn’s? And what have you [the jurors] heard throughout the course of this trial, particularly over the last two days, which suggests, for a minute, that [Reyes] deserves the gift, the grace of being able to go practically and essentially unpunished for one of those two murders? What has he done to deserve that?242

Ladies and gentlemen, [Trial Judge], only a death sentence will ensure that the murders of both Brandon Saunders and Vaughn Rowe are justly and fairly punished. Only a death sentence can ensure that the defendant pays; yes, pays for those murders. Only a death sentence can ensure that justice is done.243

The State also made improper comments in its closing rebuttal argument:

We’re talking about what the [Delaware] General Assembly says, your general assembly, your legislature says what constitutes appropriate procedure to prove a death penalty when one of them is where two people are killed in a particular case. And it’s easy to understand why. It’s easy to understand why because a life sentence for one murder means no punishment for the other [murder]. It’s as simple as that. We’re not talking about an eye for an eye. We’re

240 Penalty Phase Tr. Oct. 25, 2001 at 43:14–44:1 (emphasis added). 241 Id. at 69:13–17. 242 Id. at 69:18–70:4 (emphasis added). 243 Id. at 70:5–11 (emphasis added). 74 talking about accountability. We’re talking about no free murders. No opportunities to kill somebody and not be punished.244

If you [the jurors] return a life sentence for these – if you recommend a life sentence for these murders, [Reyes] will serve a one life sentence and that life sentence will begin at sometime between 2007 and 2009. It won’t even be [Reyes’] entire life because a portion of that life up until that time will be spent serving a sentence for the murder of Fundador Otero. What does it say, ladies and gentlemen? What does it say as the conscience of the community? What does it say about justice if Luis Reyes can kill and kill and kill yet again, and for the last murder, never be punished?245

It is well-established that a prosecutor may not misstate or misrepresent the

evidence or “mislead the jury as to the inferences it may draw.”246 This Court

must consider a prosecutor’s statements in the context of the record as a whole

and in light of all the evidence.247 Upon review of the record and consideration of

the context of the challenged statements, this Court finds the prosecutor’s

statements related to an unpunished murder to be, at a minimum, objectionable.

Here, the State presented to the jury evidence concerning the gravity of

Reyes’ criminal conduct throughout the guilt and penalty phases of the Reyes

244 Id. at 144:21–145:11 (emphasis added). 245 Id. at 153:4–15. 246 ABA Standards, Prosecution and Defense Functions, 3-5.8; Daniels v. State, 859 A.2d 1008, 1011 (Del. 2004) (quoting Sexton v. State, 397 A.2d 540, 545 (Del. 1979)); Kurzmann v. State, 903 A.2d 702, 708 (Del. 2006); Flonnory v. State, 893 A.2d 507, 540 (Del. 2006); Hunter, 815 A.2d at 735; Hughes v. State, 437 A.2d 559, 567 (Del. 1981) (“It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.”) (quoting ABA Standards, Prosecution and Defense Functions (1971)). 247 Daniels v. State, 859 A.2d 1008, 1012 (Del. 2004). 75 Rockford Park Trial. Thereafter, however, the State focused its penalty phase

arguments not on the evidence—i.e., the aggravating and mitigating factors—but

on the idea that Reyes can serve but one life sentence and thus, a life sentence is

not a punishment for both murders. The State’s argument that, absent the death

penalty, Reyes would somehow escape punishment for one of the murders—

notwithstanding the fact that Reyes faced life imprisonment—diverted the jury

from deciding if the aggravating factors outweighed the mitigating factors by a

preponderance of the evidence.248 The State improperly appealed to the jury for

vengeance by death (i.e., a retaliatory sentence).

As the commentary of ABA Standard 3-5.8 makes clear, “The prosecutor

should not make arguments that encourage the jury to depart from its duty to

decide the case on the evidence . . . . Predictions about the effect of an [outcome] .

. . go beyond the scope of the issues in trial and are to be avoided.”

The State’s arguments were improper and Reyes Trial Counsel was

objectively unreasonable for failing to object. Moreover, Reyes was prejudiced by

the State’s improper argument. Accordingly, Reyes has satisfied Strickland.

b. The State improperly characterized Reyes’ mitigation factors as excuses.

In its closing of the penalty phase, the State argued the following:

248 See Small v. State, 51 A.3d 452, 462 (Del. 2012) (“The prosecutorial misconduct tainted the jury’s vote on whether the aggravating circumstances outweighed the mitigating circumstances.”). 76 Well, against the weight of these many aggravating circumstances, [Reyes], through his able and capable counsel . . . has introduced evidence of what he claims are facts where were mitigating which make the death penalty less appropriate. What did we hear?

Well, [Reyes Trial Counsel] began by saying that this evidence would not be introduced in an attempt to excuse the murders. But then consider the testimony of Caroline Burry, and although she never said that she was trying to excuse the murders, what was your [the jurors] read on what she was really saying?249

Folks, although [Dr. Burry] didn’t say it and she never did say it, [Dr. Burry’s mitigation testimony] is an attempt to excuse what [Reyes] has done and [the State] submits you should reject that for exactly what it is.250

This was improper argument, yet Reyes Trial Counsel did not object. The

Delaware Supreme Court addressed this issue as recently as 2012 in its decision in

Small v. State, holding that “mitigating circumstances are different from

excuses.”251 In Small, the State, on eight different occasions, referred to each of

the defendant’s mitigating circumstances individually as an excuse.252 On direct

appeal, the Small Court concluded that the prosecutor’s repeated improper

characterization of the defendant’s mitigating circumstances as excuses “changed

the tenor or the penalty phase” and distracted “the jury from its proper role and

249 Penalty Phase Tr. Oct. 25, 2001 at 63:9–21 (emphasis added). 250 Id. at 64:13–16 (emphasis added). 251 Small, 51 A.3d at 460 (distinguishing the term “excuse” in the context of criminal law from a “mitigating circumstance”). 252 Id. at 459. 77 duty to weigh the aggravating and mitigating circumstances.”253 As a result, the

Small Court remanded the matter for a new penalty hearing.254

The Delaware Supreme Court’s concerns in Small are likewise applicable

here. The State characterized the entirety of Dr. Burry’s mitigation testimony as an

attempt to “excuse” the Rockford Park Murders. Therefore, this was improper

argument by the State and was objectionable. Reyes Trial Counsel was objectively

unreasonable for failing to object to the State’s mischaracterizations of Reyes’

mitigation evidence as an excuse. Reyes suffered prejudice as a result of this

improper presentation. Accordingly, Reyes has satisfied Strickland.

c. The State’s characterization of Reyes as “monstrous” was improper and Reyes Trial Counsel should have objected.

The State injected improper inflammatory remarks into the penalty hearing

by describing Reyes as “monstrous.” Specifically, Reyes challenges the following

from the State’s rebuttal argument:

When you kill, and you kill, and you kill again, you are a murderer. That is what you are. You need go no further in defining him. He is so monstrous. It is so monumental that any definition of Luis Reyes pales into insignificance.255

253 Id. at 461. 254 Id. at 462. 255 Penalty Phase Tr. Oct. 25, 2001 at 148:16–21 (emphasis added). 78 In presenting the State’s case at trial, prosecutors “may argue legitimate

inferences of the [defendant’s] guilt that flow from the evidence.”256 However,

prosecutors must “refrain from legally objectionable tactics calculated to arouse

the prejudices of the jury.”257 For example, it is both inflammatory and

impermissible for a prosecutor to engage in name-calling against the defendant

because such characterizations attempt to inflame the passions of the jury.258

Accordingly, the State’s comments in this regard were improper and Reyes Trial

Counsel was ineffective by failing to object. Moreover, Reyes suffered prejudice.

d. The State improperly presented a “message to the community” argument.

Delaware Courts have held that it is improper for a prosecutor to appeal to a

jury’s sense of personal risk and “‘to direct the jury’s attention to the societal goal

of maintain a safe community.’”259 Arguments that urge the jury to prevent danger

in the community are objectionable because such arguments, for example, direct

juror attention to matters outside the record, implicate varying levels of juror

perception and personal knowledge, and suggest jurors are at personal risk.260

256 Daniels v. State, 859 A.2d 1008, 1011 (Del. 2004) (internal quotations omitted). 257 Brokenbrough, 522 A.2d at 855 (internal quotations omitted). 258 Id. at 857 (finding that it was improper for the prosecutor to insinuate, by analogy, that the defendant was the devil). 259 Williamson v. State, 1998 WL 138697, at *3 (Del. Feb. 25, 1998) (quoting Black v. State, 616 A.2d 320, 324 (Del. 1992)). 260 Black v. State, 616 A.2d 320 at 324 (Del. 1992). 79 The State improperly appealed to the jury’s sense of community. In the final

paragraph of its rebuttal at the penalty phase, the State rhetorically asked the jury,

“What does it say, ladies and gentlemen? What does it say as the conscience of the

community? What does it say about justice if Luis Reyes can kill and kill and kill

yet again, and for the last murder, never be punished?”261 These statements were

objectionable; it was objectively unreasonable for Reyes Trial Counsel to withhold

an objection, and Reyes suffered prejudice. Therefore, Strickland is satisfied.

4. Reyes Trial Counsel failed to rebut the State’s improper and inaccurate characterization of Reyes’ prison record.

While discussing Reyes’ prison record during its penalty phase closing

argument, the State argued the following:

What’s worse and perhaps what’s more significant is what’s not here. There is no evidence that the defendant, since he was incarcerated in 1997, has undertaken any significant efforts whatsoever to rehabilitate himself. Now, remember, he told Dr. Finkelstein and you’ll see [. . . ] Dr. Feinkelstein’s report, that he was convinced you all would exonerate him and that he would be released from prison some day. But he didn’t do anything of any significance to make himself a better person in anticipation of his eventual release. No anger counseling, no psychological counseling, no psychiatric counseling, no Key program, no Crest program, no certificates of achievement, nothing. Nothing.262

261 Penalty Phase Tr. Oct. 25, 2001 at 152:11–15 (emphasis added). 262 Id. at 58:1-16. The State offered a similar argument in its rebuttal argument of the penalty phase, stating:

What’s more important is where are the attempts to rehabilitate himself? Until Friday, if you believe him, he expected to walk out of jail at the end of his 12-year sentence. So where are the attempts to rehabilitate himself? Where are 80 Accordingly, this presentation offered a false impression that Reyes had not

attempted to rehabilitate himself and would not do so if given a life sentence;

therefore, according to the State, execution was the most appropriate sanction.

However, Reyes’ prison records reflect that Reyes participated in various

education programs from 1999 to 2002. Importantly, most of Reyes’ time in

prison before the Reyes Rockford Park Trial was as a pre-trial detainee for both the

Otero murder and the Rockford Park Murders. As a pre-trial detainee, Reyes was

not even eligible for rehabilitative programs at HRYCI. Moreover, at a

postconviction evidentiary hearing, correctional consultant James Aiken testified

that Reyes had enrolled in vocational programs as a sentenced inmate at HRYCI.

Reyes has established the performance prong of Strickland. Where Reyes

Trial Counsel, by their own admission, failed to even investigate Reyes’

involvement in any prison programs as a mitigating factor in a pending death

penalty matter, their representation fell below an objective standard of

reasonableness. Reyes Trial Counsel had an obligation to Reyes to gather

information which would rebut the State’s characterization of Reyes. Ideally,

Reyes Trial Counsel would have objected to the State’s presentation regarding

the certificates from anger management classes, occupational therapy, [sic], anything good? Where are those records?

Id. at 146:6-12. 81 rehabilitative efforts by Reyes and obtained a ruling by the Trial Court that the

probative value was substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury. 263 Had the Trial Court declined to

prohibit this presentation, then Reyes Trial Counsel should have presented

evidence to explain to the jury Reyes’ status as a pre-trial prison detainee made

him ineligible for rehabilitative programs.

The failure of Reyes Trial Counsel to challenge the State’s comments on

Reyes’ alleged failure to participate in rehabilitative programs fell below the

expectations of reasonable performance. Moreover, Reyes was prejudiced because

the State relied on this information to argue that a death sentence was mandated

because Reyes would not make any effort to be rehabilitated during a life sentence.

5. Reyes Trial Counsel failed to object to the State’s improper rebuttal to Reyes’ allocution. Reyes exercised his right to allocate during the penalty phase.264 Before

doing so, the Trial Court engaged in a detailed colloquy regarding the parameters

of allocution.265 Reyes expressed that he had discussed with Reyes Trial Counsel

the potential risks and benefits of personally addressing the jury. The Trial Court

263 See D.R.E. 403. 264 The right to allocution is not constitutional but, rather, is a substantial right grounded in Superior Court Criminal Rule 32(a)(1)(c), Delaware’s death penalty statute, codified at 11 Del. C. § 4209(c)(2), and Delaware decisional law. See Shelton v. State, 744 A.2d 465, 491–98 (Del. 1999). 265 See Penalty Phase Tr. Oct. 25, 2001 at 73:21–87:9. 82 also engaged in a colloquy with Reyes about allocution.266 Reyes Trial Counsel

also specifically addressed on the record that Reyes has been advised that he could

be cross-examined under oath if Reyes’ allocution went beyond the record. The

State expressly agreed with Reyes Trial Counsel that should Reyes exceed the

parameters of allocution, then Reyes must be cross-examined under oath.267

After Reyes personally addressed the jury, the State raised issue with the

following statements:

REYES: I’ve made many bad choices in my life and I’m guilty of many things, and out of all of those bad choices that I’ve made, I admitted to my wrong. Whether it was exactly at that time or a little later down the line, I admitted to what I did. I came forward.268

Before this trial started, [the State] came to me with a plea of life in prison, to spend the rest of my life in jail, but I turned that plea down. My lawyers advised me of the evidence that [the State] had and that it didn’t look good, but regardless of that, I would not take that plea. I told them I would not take a plea for something that I did not do. So we came to trial.269

Specifically, the State submitted and the Trial Court agreed that Reyes had

introduced a new matter into evidence—a plea offer from the State rejected by

Reyes. However, the State never formally extended a plea offer to Reyes.

Nevertheless, while it is technically accurate that a formal plea had never

been extended, there had, in fact, been plea discussions. Indeed, it was made clear

266 Id. at 81:16–82:11. 267 Id. at 84:10–11; see Shelton, 744 A.2d at 496. 268 Penalty Phase Tr. Oct. 25, 2001 at 95:11–16. 269 Id. 95:17–96:2 (emphasis added). 83 by the State that, if Reyes would admit responsibility for the Rockford Park

Murders, then the State would agree to a life sentence and would not seek Reyes’

execution. However, Reyes claimed factual innocence and refused to accept

responsibility for crimes he contended he did not commit.

To correct the record, per the State’s request and as agreed upon by Reyes

Trial Counsel, the State read to the jury—and into the record—a letter the State

wrote to Reyes Trial Counsel on September 17, 2001, before the Reyes Rockford

Park Trial began. Therefore, despite the acknowledgement of all parties and the

Trial Court, the correct procedure was not followed; Reyes was not placed under

oath and cross-examined.

Not only did Reyes Trial Counsel fail to insist upon correct procedure, but

the September 17th letter inserted improper commentary and vouching by the State

that was inappropriate. The State’s rebuttal argument was as follows:

[Reyes’ allocution] talked about a plea agreement, a plea offer. And [Reyes] was wrong about that. [Reyes] presented incorrect information. And because of that, [the State is] permitted to set the record straight . . . so that you’re not under any misapprehensions about what the State’s position is in this case.

What I’m going to read to you [] is a letter sent to [Reyes Trial C]ounsel on September the 17th of this year to [Reyes Trial Counsel] from [the State].

“We also want to comment on [Reyes Trial Counsel’s] arguments concerning a prior plea offer. To be precise, no plea was ever offered. We did ask whether your client would be willing to discuss a possible plea to a life sentence coupled with a proffer to the victim’s families 84 in some undetermined form as to the specifics of what happened and why. Your client expressed no interest in opening those lines of communication, so no plea was ever offered. While we might be willing to talk about waiving the death penalty for someone who accepts responsibility for his actions and helps grieving families cope with their losses, we are not willing to do so for a person we believe to be a triple murderer who does not accept that responsibility. Without an acceptance of responsibility, we believe that the death penalty for your client is absolutely required. It seems to us that while we will be able – that we will be able to seat an unbiased jury. If your client wants to avoid the possibility of a death penalty, we believe he should rethink his earlier position rather than seek unilateral concessions from the State.”270

A prosecutor—seeking justice in his or her “unique role in the adversary

system”—may argue to the jury “all legitimate inferences of the defendant’s guilt

that follow from the evidence.”271 A prosecutor must not, however, engage in

vouching by “impl[ying] personal superior knowledge, beyond what it logically

inferred from the evidence at trial.”272 ABA Standards also warn against a

prosecutor sharing his or her personal opinions or beliefs “as to the truth or falsity

of any testimony or evidence or the guilt of the defendant.”273

270 Id. at 142:8–143:20. 271 Burns v. State, 76 A.3d 780, 789–90 (Del. 2013); Kirkley, 41 A.3d at 377 (referencing Daniels v. State, 859 A.2d 1008, 1011 (Del. 2004) (quoting Hooks v. State, 416 A.2d 189, 204 (Del. 1980)), and Boatson v. State, 457 A.2d 738, 742 (Del. 1983)). 272 Burns, 76 A.3d at 789–90; Kirkley, 41 A.3d at 377; White v. State, 816 A.2d 776, 779 (Del. 2003); Flonnory, 893 A.2d at 539 (“It it well-settled that prosecutors may not express their personal opinions or beliefs about the credibility of witnesses or about the truth of any testimony.”). 273 ABA Standards Prosecution Function, 3-5.8(b), available at http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_p func_blk.html. 85 In Kirkley v. State, the Delaware Supreme Court held that the prosecutor’s

statement—that the State only pursued criminal charges against the defendant

because the defendant was actually guilty—constituted improper vouching of the

defendant’s guilt.274 The Delaware Supreme Court recently addressed this issue in

McCoy v. State.275 The McCoy Court found that the prosecutor vouched for the

testimony of a State witness by expressing a personal opinion on the defendant’s

guilt, which “implicitly and inappropriately corroborated [the State witness’]

testimony and endorsed [the State witness’] credibility.”276 The McCoy Court

determined that the prosecutor’s statements, like statements made in Kirkley,

implied superior knowledge of the evidence.277

In Burns v. State, the Delaware Supreme Court held that the prosecutor’s

statements—that the defendant “did this” and was responsible for the criminal

conduct as charged—did not imply superior knowledge of the evidence but, rather,

274 Kirkley, 41 A.3d at 377–78 (concluding that the prosecutor’s comments regarding the State’s charging decisions suggested superior knowledge of the evidence and resulted in “an improper inference” that could not be drawn from the evidence). 275 112 A.3d 239 (Del. 2015). 276 McCoy, 112 A.3d at 261. 277 Compare McCoy, 112 A.3d at 261 (finding misconduct because the prosecutor vouched for the State’s witness by expressing his personal opinion that the defendant shot the victim, which implied superior knowledge of the evidence); Kirkley, 41 A.3d at 377–78 (finding misconduct because the prosecutor vouched for the State’s case by staying that the State pursued criminal charges only when the defendant was indeed guilty, which implied superior knowledge of the evidence); and Whittle, 77 A.3d at 247–48 (finding misconduct because the prosecutor expressly endorsed the testimony of the State’s witness that the defendant was guilty); with Burns, 76 A.3d at 790–91 (determining the prosecutor’s statements that the defendant committed the criminal conduct charged was logically inferred from the evidence). 86 constituted a logical inference from the evidence.278 The Burns Court noted that

the prosecutor did not speak in the first person and “couched his statements by

saying ‘what the attorneys say is not evidence[,]’” and determined that such a

warning bolstered the Burns Court’s conclusion.279 Unlike the prosecutor’s

statements in Burns, the State’s September 17th letter, written in the first person,

contained the State’s personal opinion that Reyes’ case “absolutely required” the

death penalty.280

It was objectively unreasonable for Reyes Trial Counsel to agree to the

State’s reading of its September 17th letter into the record to “cure” Reyes’

statements that the Trial Court found had exceeded the bounds of allocution.

Reyes Trial Counsel was ineffective by agreeing with the State that reading the

State’s letter into the record “was the fair way to deal with the situation.” 281 This

was not the correct procedure and Reyes Trial Counsel should have objected to the

presentation of the September 17th letter.

Rather than present to the Trial Court an argument that Reyes’ statement

was not completely inaccurate, Reyes Trial Counsel abandoned their client on this

point. Moreover, and perhaps more importantly, Reyes Trial Counsel should have

argued that the remedy for the State was to cross-examine Reyes. The State

278 Burns, 76 A.3d at 790. 279 Id. 280 Penalty Phase Tr. Oct. 25, 2001 at 143:13–14. 281 Id. at 106:9–10. 87 concedes, as it must, that Reyes Trial Counsel could have insisted that Reyes be

cross-examined.282 Had that cross-examination taken place, Reyes could have

explained Reyes’ understanding of the options that were explained to him.

This Court finds, at a minimum, Reyes Trial Counsel should have objected

to the reading of the September 17th letter because it contained the personal beliefs

and opinions of the prosecutors. Indeed, the letter expressly said that “we believe”

(the State) that the death penalty was absolutely required. Accordingly, Reyes

Trial Counsel acted objectively unreasonable with respect to the State’s challenge

to Reyes’ allocution, the subsequent “curative measure,” and the improper

vouching within the September 17th letter. Furthermore, Reyes suffered prejudice

as a result of the State’s improper vouching. Accordingly, this Court finds that

Reyes has satisfied both the performance and prejudice prongs of Strickland.

VI. WHETHER REYES IS ENTITLED TO RELIEF ON HIS GENERAL CONSTITUTIONAL OBJECTIONS TO DELAWARE’S EXECUTION DRUGS IS AN ISSUE RESERVED FOR THE APPELLATE COURT.

Reyes argues that this Court must vacate his death sentence because, in light

of a nationwide shortage of lethal injection drugs, the state of Delaware cannot

administer the death penalty in a manner consistent with Reyes’ constitutional

rights against cruel and unusual punishment. 282 State’s Answer to Reyes’ Brief Following Ev. Hrg., Oct. 8, 2014, p. 60 (“While [Reyes] is correct that rather than agreeing to let the State read the accurate letter into the record, [Reyes Trial Counsel] could have insisted that [Reyes] be placed under oath and cross-examined to his detriment on the issue . . .”). 88 The protocol in Delaware for administering execution via lethal injection is

described as:

Punishment of death shall, in all cases, be inflicted by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such person sentenced to death is dead, and such execution procedure shall be determined and supervised by the Commissioner of the Department of Correction.283

The Delaware Supreme Court has consistently upheld the constitutionality of the

Delaware Death Statute.284 The Delaware Supreme Court has upheld the

constitutionality of the Delaware Death Statute as applied to Reyes.285 Moreover,

lethal injection as a form of execution does not violate the United States

Constitution or the Delaware Constitution.286

The determination of whether the application of Delaware’s Death Statute is

unconstitutional because of an alleged national lethal injection drug shortage is not

283 11 Del. C. § 4209(f). 284 See e.g., Swan v. State, 820 A.2d 342 (Del. 2003) (holding that a jury’s conviction of a defendant unanimously and beyond a reasonable doubt for a crime that itself established a statutory aggravating circumstance satisfied the constitutional requirements set forth in Ring v. Arizona, 536 U.S. 584 (2002), by providing a determination of the actor that rendered the defendant “death eligible”); Brice v. State, 815 A.2d 314 (Del. 2003) (upholding the 2002 version of 11 Del. C. § 4209, noting that “[t]he 2002 Statute transformed the jury’s role . . . from one that was advisory under the 1991 version . . . into one that is now determinative as to the existence of any statutory aggravating circumstances.”); Ortiz v. State, 869 A.2d 285, 305 (Del. 2005) (stating that the Delaware Supreme Court “adhere[s] to [its] holding in Brice that Delaware's hybrid form of sentencing, allowing the jury to find the defendant death eligible and then allowing a judge to impose the death penalty once the defendant is found to be death eligible, is not contrary to the Sixth Amendment of the United States Constitution[.]”); Cabrera Direct Appeal, 840 A.2d at 1272–74. 285 Reyes Direct Appeal, 819 A.2d at 316–17. 286 State v. Deputy, 644 A.2d 411, 420-22 (Del. Super.) aff’d, 648 A.2d 423 (Del. 1994). 89 for this Court to decide. To the extent that Reyes needs to reserve this argument

for further proceedings, it is so reserved.

VII. CONCLUSION

This Court has determined that Reyes’ constitutional rights were violated

during the guilt and penalty phases of the Reyes Rockford Park Trial. Moreover,

Reyes Trial Counsel was ineffective. The cumulative effect of Reyes Trial

Counsel’s errors leads this Court to conclude that “mistakes were made that

undermine the confidence in the fairness of the [Reyes Rockford Park T]rial” and

“there is a reasonable probability that the outcome of the [Reyes Rockford Park]

[T]rial would have been different without the errors.”287 Based on the record

before the Court and consideration of decisional law, this Court finds that the

fundamental legality, reliability, integrity, and fairness of the proceedings leading

to Reyes’ convictions and sentencing are not sound. Accordingly, the judgments

of convictions and death sentenced imposed by Order dated March 14, 2002 must

be vacated.

287 Starling, 2015 WL 8758197, at *2.

90 NOW, THEREFORE, this 27th day of January, 2016, the

Postconviction Motion of Luis Reyes is GRANTED. The judgments of

conviction and death sentence imposed by Order dated March 14, 2002 are

hereby VACATED.

IT IS SO ORDERED.

Andrea L. Rocanelli ___________________________________ The Honorable Andrea L. Rocanelli