State v. King
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Opinion
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) Plaintiff, ) ) ) v. ) Cr. ID. No. 1606002410 A/B ) ) MARZETTE KING, ) ) Defendant. )
Submitted: March 12, 2025 Decided: June 6, 2025
COMMISSIONER’S REPORT AND RECOMMENDATION THAT DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF SHOULD BE GRANTED
Matthew C. Bloom, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Natalie S. Woloshin, Esquire, 3200 Concord Pike, P.O. Box 7329, Wilmington, Delaware, Attorney for Defendant Marzette King.
PARKER, Commissioner SUMMARY
Defendant Marzette King, with the assistance of court-appointed counsel,
raised a number of claims in his Rule 61 postconviction relief motion. For the
reasons discussed herein, the Court finds King’s claim of a Brady violation to be
meritorious. The Court finds that the State committed a Brady violation when it
failed to advise King’s trial counsel that King’s co-defendant, Randy Barber,
would testify at King’s trial that the guns belonged to him (Barber) and that he
never saw King with any guns.
To put the importance of Barber’s statements in context, both King and
Barber were living at the residence at issue and both sold marijuana from the
residence. Three guns were found at the residence. Barber was given a plea offer
to probation. King was given a plea offer to 25-years imprisonment as a habitual
offender. Barber accepted his plea and was sentenced to probation. King rejected
his plea, went to trial, and was convicted on all the charges. On the gun charges
stemming from the three guns at issue, King was sentenced to 120-years
imprisonment.
For the reasons discussed herein, in light of this Brady violation, the
judgment should be set aside and a new trial granted.
1 PROCEDURAL HISTORY
Marzette King and his co-defendant, Randy Barber, were arrested on June 3,
2016, and indicted on August 15, 2016. They were both charged with Drug
Dealing Marijuana, Possession of Drug Paraphernalia, three counts of Possession
of a Firearm During the Commission of a Felony (“PFDCF”), three counts of
Possession or Control of a Firearm by a Person Prohibited (“PFBPP”), one count
of Possession or Control of Ammunition by a Person Prohibited (“PABPP”), and
Conspiracy Second Degree.
Barber was offered a plea deal to drug dealing marijuana and conspiracy
second degree with a recommended sentence by the State to probation.1 King was
offered a plea deal to one count of PFDCF as a habitual offender with a
recommended sentence by the State to the minimum-mandatory term of 25-years
incarceration.2 Barber accepted his plea. King rejected his plea.
On January 20, 2017, Barber accepted the State’s plea offer and pled guilty
to drug dealing marijuana and conspiracy second degree.3 The Court followed the
1 As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A675 (Barber Plea Agreement). 2 Marzette King Plea Offer dated January 9, 2017. 3 As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A675 (Barber Plea Agreement). 2 State’s recommendation and sentenced Barber to probation.4 The plea agreement
did not require Barber to testify at King’s trial.5
King proceeded to trial. Prior to trial, the State dismissed the conspiracy
second degree charge against King.6
Prior to trial, the three counts of PFBPP and the one count of PABPP were
severed and were to be decided by the same jury immediately following the verdict
on the other charges. King’s trial began on May 9, 2017. On May 11, 2017, a jury
found King guilty of all charges, including the severed PFBPP/PABPP charges.
On June 14, 2017, the State filed a motion to declare King a habitual
offender on all the convictions on all the gun charges.7 There were three guns at
issue, and convictions for PFDCF and PFBPP as to each of the three guns, for a
total of six convictions on the gun charges.8
Prior to ruling on the State’s habitual offender petition, the Court asked to
speak with the attorneys privately in a conference room.9 During that conference,
the Court asked the State to reconsider its position that habitual status was
warranted on all six of the convictions on the gun charges.10 The Court also
4 As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A691-693 (Barber Sentencing Order). 5 See, as to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A675 (Barber Plea Agreement). 6 May 9, 2017 Trial Transcript, at pg. 14. 7 As to ID No. 1606002410A: D.I. 28- June 14, 2017 Motion to Declare King a habitual offender. 8 Id. 9 July 13, 2017 Sentencing Transcript, at pg. 2. 10 July 13, 2017 Sentencing Transcript, at pg. 3-7. 3 expressed concern as to the inequity of the vast disparity of the sentences between
the two co-defendants.11 The Court thought it was “draconian” to move for
habitual status on all six gun convictions.12 The Court urged the State to seek
habitual status on only one of the gun charges, in which event King would still be
facing a lengthy prison term.13
The State elected to continue to pursue habitual status on all six of the gun
convictions. The Court, not having any discretion, was compelled to grant the
State’s habitual status petition.14 As to each of the three firearms, King was
sentenced to 25 years minimum-mandatory on the PFDCF conviction, and 15 years
minimum-mandatory on the PFBPP conviction, 40 years imprisonment per
firearm, for an aggregate sentence of 120 years of incarceration.15
On the remaining convictions, drug dealing, possession of drug
paraphernalia, and PABPP, King was sentenced to probation.16
King’s direct appeal was denied by the Delaware Supreme Court on
September 24, 2018.17 The mandate was issued on October 15, 2018.18 King did
not become aware of the denial of his appeal until March 2020, beyond the one-
11 July 13, 2017 Sentencing Transcript, at pg. 3-4, 7. 12 July 13, 2017 Sentencing Transcript, at pg. 5-6. 13 July 13, 2017 Sentencing Transcript, at pg. 3-5. 14 As to ID No. 1606002410A: D.I. 30- July 13, 2017 Order granting State’s habitual offender motion. 15 As to ID No. 1606002410A: D.I. 31- July 13, 2017 Sentencing Order; July 13, 2017 Sentencing Transcript, at pg. 16-17. 16 As to ID No. 1606002410A: D.I. 31- July 13, 2017 Sentencing Order. 17 King v. State, 2018 WL 4671232 (Del.). 18 As to ID No. 1606002410A: D.I. 40- Mandate filed from Delaware Supreme Court. 4 year period for the timely filing of a Rule 61 motion. Rule 61 counsel requested
that the Delaware Supreme Court reissue its mandate so that the one-year period
could be reset for the timely filing of a Rule 61 motion. The State opposed the
motion.
On March 9, 2023, the Delaware Supreme Court found that the reissuance of
the mandate was appropriate and granted King’s motion.19 On March 27, 2023, the
mandate was reissued.20
Counsel was appointed to represent King on this Rule 61 motion.21 After the
Delaware Supreme Court reissued the mandate on King’s direct appeal, King had
one year to timely file his Rule 61 motion. The mandate was reissued on March
27, 2023, and on March 27, 2024, King filed an Amended Motion for
Postconviction Relief.
Upon the filing of the Amended Rule 61 motion, a briefing schedule was
entered. King’s trial counsel was directed to submit an Affidavit responding to the
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) Plaintiff, ) ) ) v. ) Cr. ID. No. 1606002410 A/B ) ) MARZETTE KING, ) ) Defendant. )
Submitted: March 12, 2025 Decided: June 6, 2025
COMMISSIONER’S REPORT AND RECOMMENDATION THAT DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF SHOULD BE GRANTED
Matthew C. Bloom, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Natalie S. Woloshin, Esquire, 3200 Concord Pike, P.O. Box 7329, Wilmington, Delaware, Attorney for Defendant Marzette King.
PARKER, Commissioner SUMMARY
Defendant Marzette King, with the assistance of court-appointed counsel,
raised a number of claims in his Rule 61 postconviction relief motion. For the
reasons discussed herein, the Court finds King’s claim of a Brady violation to be
meritorious. The Court finds that the State committed a Brady violation when it
failed to advise King’s trial counsel that King’s co-defendant, Randy Barber,
would testify at King’s trial that the guns belonged to him (Barber) and that he
never saw King with any guns.
To put the importance of Barber’s statements in context, both King and
Barber were living at the residence at issue and both sold marijuana from the
residence. Three guns were found at the residence. Barber was given a plea offer
to probation. King was given a plea offer to 25-years imprisonment as a habitual
offender. Barber accepted his plea and was sentenced to probation. King rejected
his plea, went to trial, and was convicted on all the charges. On the gun charges
stemming from the three guns at issue, King was sentenced to 120-years
imprisonment.
For the reasons discussed herein, in light of this Brady violation, the
judgment should be set aside and a new trial granted.
1 PROCEDURAL HISTORY
Marzette King and his co-defendant, Randy Barber, were arrested on June 3,
2016, and indicted on August 15, 2016. They were both charged with Drug
Dealing Marijuana, Possession of Drug Paraphernalia, three counts of Possession
of a Firearm During the Commission of a Felony (“PFDCF”), three counts of
Possession or Control of a Firearm by a Person Prohibited (“PFBPP”), one count
of Possession or Control of Ammunition by a Person Prohibited (“PABPP”), and
Conspiracy Second Degree.
Barber was offered a plea deal to drug dealing marijuana and conspiracy
second degree with a recommended sentence by the State to probation.1 King was
offered a plea deal to one count of PFDCF as a habitual offender with a
recommended sentence by the State to the minimum-mandatory term of 25-years
incarceration.2 Barber accepted his plea. King rejected his plea.
On January 20, 2017, Barber accepted the State’s plea offer and pled guilty
to drug dealing marijuana and conspiracy second degree.3 The Court followed the
1 As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A675 (Barber Plea Agreement). 2 Marzette King Plea Offer dated January 9, 2017. 3 As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A675 (Barber Plea Agreement). 2 State’s recommendation and sentenced Barber to probation.4 The plea agreement
did not require Barber to testify at King’s trial.5
King proceeded to trial. Prior to trial, the State dismissed the conspiracy
second degree charge against King.6
Prior to trial, the three counts of PFBPP and the one count of PABPP were
severed and were to be decided by the same jury immediately following the verdict
on the other charges. King’s trial began on May 9, 2017. On May 11, 2017, a jury
found King guilty of all charges, including the severed PFBPP/PABPP charges.
On June 14, 2017, the State filed a motion to declare King a habitual
offender on all the convictions on all the gun charges.7 There were three guns at
issue, and convictions for PFDCF and PFBPP as to each of the three guns, for a
total of six convictions on the gun charges.8
Prior to ruling on the State’s habitual offender petition, the Court asked to
speak with the attorneys privately in a conference room.9 During that conference,
the Court asked the State to reconsider its position that habitual status was
warranted on all six of the convictions on the gun charges.10 The Court also
4 As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A691-693 (Barber Sentencing Order). 5 See, as to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A675 (Barber Plea Agreement). 6 May 9, 2017 Trial Transcript, at pg. 14. 7 As to ID No. 1606002410A: D.I. 28- June 14, 2017 Motion to Declare King a habitual offender. 8 Id. 9 July 13, 2017 Sentencing Transcript, at pg. 2. 10 July 13, 2017 Sentencing Transcript, at pg. 3-7. 3 expressed concern as to the inequity of the vast disparity of the sentences between
the two co-defendants.11 The Court thought it was “draconian” to move for
habitual status on all six gun convictions.12 The Court urged the State to seek
habitual status on only one of the gun charges, in which event King would still be
facing a lengthy prison term.13
The State elected to continue to pursue habitual status on all six of the gun
convictions. The Court, not having any discretion, was compelled to grant the
State’s habitual status petition.14 As to each of the three firearms, King was
sentenced to 25 years minimum-mandatory on the PFDCF conviction, and 15 years
minimum-mandatory on the PFBPP conviction, 40 years imprisonment per
firearm, for an aggregate sentence of 120 years of incarceration.15
On the remaining convictions, drug dealing, possession of drug
paraphernalia, and PABPP, King was sentenced to probation.16
King’s direct appeal was denied by the Delaware Supreme Court on
September 24, 2018.17 The mandate was issued on October 15, 2018.18 King did
not become aware of the denial of his appeal until March 2020, beyond the one-
11 July 13, 2017 Sentencing Transcript, at pg. 3-4, 7. 12 July 13, 2017 Sentencing Transcript, at pg. 5-6. 13 July 13, 2017 Sentencing Transcript, at pg. 3-5. 14 As to ID No. 1606002410A: D.I. 30- July 13, 2017 Order granting State’s habitual offender motion. 15 As to ID No. 1606002410A: D.I. 31- July 13, 2017 Sentencing Order; July 13, 2017 Sentencing Transcript, at pg. 16-17. 16 As to ID No. 1606002410A: D.I. 31- July 13, 2017 Sentencing Order. 17 King v. State, 2018 WL 4671232 (Del.). 18 As to ID No. 1606002410A: D.I. 40- Mandate filed from Delaware Supreme Court. 4 year period for the timely filing of a Rule 61 motion. Rule 61 counsel requested
that the Delaware Supreme Court reissue its mandate so that the one-year period
could be reset for the timely filing of a Rule 61 motion. The State opposed the
motion.
On March 9, 2023, the Delaware Supreme Court found that the reissuance of
the mandate was appropriate and granted King’s motion.19 On March 27, 2023, the
mandate was reissued.20
Counsel was appointed to represent King on this Rule 61 motion.21 After the
Delaware Supreme Court reissued the mandate on King’s direct appeal, King had
one year to timely file his Rule 61 motion. The mandate was reissued on March
27, 2023, and on March 27, 2024, King filed an Amended Motion for
Postconviction Relief.
Upon the filing of the Amended Rule 61 motion, a briefing schedule was
entered. King’s trial counsel was directed to submit an Affidavit responding to the
ineffective assistance of counsel claims raised. The State was directed to file a
response to the motion and Rule 61 counsel filed a reply thereto.22
After briefing was completed, on March 12, 2025, a hearing was held to
further address some of the claims raised in King’s Rule 61 motion.
19 King v. State, No. 312, 2017 (Del. March 9, 2023). 20 As to ID No. 1606002410A: D.I. 69- Delaware Supreme Court reissued mandate. 21 As to ID No. 1606002410A: .D.I. 44 - Order appointing Rule 61 counsel. 22 As to ID No. 1606002410A: D.I. 73- Rule 61 briefing schedule. 5 FACTS
Marzette King and co-defendant Randy Barber both resided at 218 West
22nd Street, Wilmington, Delaware. The house was owed by King’s uncle, the
brother of King’s mother.23 King’s uncle was a retired police officer who had been
shot and was paralyzed and bedridden.24
Marzette King had a brother, DaShawn King, who also resided at Marzette’s
uncle’s house but was “away” during the time period at issue.25 At the time of
sentencing in July 2017, DaShawn had been “away” for almost three years.26
Randy Barber grew up around Marzette and DeShawn King but is not
related to them or to their uncle.27
At the time of this incident, Marzette King was a six- time convicted felon.28
Marzette was convicted in 2000 of three counts of Robbery in the First Degree and
23 July 13, 2017 Sentencing Transcript, at pg. 23; As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion attached as Exhibit C (the undated Interview Recording of Randy Barber). 24 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion attached as Exhibit C (the undated Interview Recording of Randy Barber); May 9, 2017 Trial Transcript, at pgs. 41- 42. 25 July 13, 2017 Sentencing Transcript, at pg. 20-24. 26 July 13, 2017 Sentencing Transcript, at pg. 24. 27 July 13, 2017 Sentencing Transcript, at pg. 24-25; D.I. 82- State’s Response to Rule 61 Motion attached as Exhibit C (the undated Interview Recording of Randy Barber). 28 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 12; D.I. 28- June 14, 2017 Motion to Declare King a habitual offender.
6 one count of Burglary in the First Degree, in 2005 with Possession with Intent to
Deliver; and in 2010 with aggravated menacing.29
Barber was a two- time convicted felon.30 Barber was convicted in 1998 of
trafficking cocaine 5-50 grams and in 2003 for maintaining a vehicle.31
Both King and Barber are prohibited from possessing a firearm or
ammunition.32
The Underlying Events
It is undisputed that both Marzette King and Randy Barber sold marijuana
from the residence.33 After Marzette was arrested, in his post-Miranda interview
29 As to ID No. 1606002410A: D.I. 28- June 14, 2017 Motion to Declare King a habitual offender with supporting documentation.
As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at 30
A675 (Barber Plea Agreement) & A676 (Barber Immediate Sentencing Form).
As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at 31
A675 (Barber Plea Agreement) & A676 (Barber Immediate Sentencing Form). 32 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 12. 33 As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A675 (Barber Plea Agreement)(Barber admitted to drug dealing marijuana as part of his plea); D.I. 71 Appendix to Rule 61 Motion at A681-689 (Barber’s plea colloquy); D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peache Court No. 11 Commitment (After his arrest, King admitted to the police that he sells marijuana from the residence); D.I. 82- State’s Response to Rule 61 Motion, Exhibit C (Barber’s Interview Recording admitting he and King sold marijuana from the residence).
7 with the police, he admitted that he sold marijuana from the residence.34 Barber
pled guilty to drug dealing marijuana and admitted to doing so.35 Later, in the
undated recorded interview with the State’s detective that occurred sometime
during the briefing on this Rule 61 motion, Barber again reiterated that he and
King sold marijuana from the residence.36
Corporal Evans, an officer employed by the Wilmington Police Department
was contacted by a Cooperating Source (“C.S.”) and advised that Randy Barber
was selling marijuana from his residence at 218 West 22nd Street.37 The C.S. also
told Corporal Evans that Randy Barber keeps a firearm inside of the residence for
the protection of his illegal drug distribution organization.38 The C.S. told
Corporal Evans that Randy Barber keeps the firearm under a seat cushion of a
34 As to ID No. 1606002410A : D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 11-12.
As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at 35
A685-A686 (January 20, 2017 Barber Plea Hearing, pgs. 8-9). 36 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion attached as Exhibit C (the undated Interview Recording of Randy Barber). 37 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pgs. 4, 13. 38 As to ID No. 1606002410A : D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pgs. 4, 13. .
8 red/burgundy couch in the living room.39 The C.S. stated that he has observed the
firearm on several occasions.40
Corporal Evans was also advised by a different individual, a confidential
informant, that Marzette King was known to sell marijuana from the same
residence.41
A controlled buy was arranged whereby the Confidential Informant was sent
to the residence to purchase marijuana. The Confidential Informant purchased one
bag of marijuana from King who was standing outside in front of the residence.42
After the transaction, the Confidential Informant observed Marzette King hand a
large bag of marijuana to Randy Barber who was standing on the front porch of the
residence, and Randy Barber returned inside the residence with the large bag of
marijuana.43
39 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016. 40 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016. 41 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 4-5. 42 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 5-6. 43 D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 7-8, 20. .
9 The Execution of the Search Warrant
On June 3, 2016, the police obtained a search warrant to search the residence
and on that same day executed the warrant.44 Upon approaching the residence,
King was standing outside the residence next to his vehicle, a 1993 Chevrolet
Suburban SUV.45 King was taken into custody without incident.46
At the time of his arrest, King was searched and one clear plastic sandwich
bag containing marijuana was found on him.47 He also had $670 in cash.48 In
King’s vehicle the police found marijuana and a digital scale.49
The officers then entered the residence to execute the search warrant. Upon
entering the residence, Randy Barber was sitting in a chair in the living room.50
44 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 7. 45 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pgs. 7-8. 46 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pgs. 7-8. 47 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 7-8. 48 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016. 49 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 8.
10 Also in the residence was an older gentleman, King’s uncle, who was bedridden.51
He was in the dining room area of the residence with a person who appeared to be
his caretaker or nurse.52
Before beginning the search of the residence, the officers asked Randy
Barber if there was anything illegal in the residence. Randy Barber stated that he
had some weed in his bedroom dresser.53 When asked if there were any firearms
in the residence, Barber became very nervous and his entire body started to shake.
He started breathing heavily and started to perspire. The police officer saw Barber
glance over to the maroon/burgundy couch and then immediately look away. He
then stated that there were no firearms in the residence. 54 Based on Barber’s
50 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 9. 51 May 9, 2017 Trial Transcript, at pgs. 41-42; As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion attached as Exhibit C (the undated Interview Recording of Randy Barber). 52 May 9, 2017 Trial Transcript, at pgs. 41-42, 79; May 10, 2017 Trial Transcript, at pgs. 134- 135. 53 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 23. 54 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pgs. 23-24; May 9, 2017 Trial Transcript, at pgs. 78- 79.
11 reaction to the question, Corporal Evans had no doubt there were guns in the
couch.55
Under the cushions of the maroon/burgundy couch the police located two
firearms. A black Canik 55 9 mm handgun with 17 rounds of ammunition and a
Ruger SR9 9mm handgun with a silver slide and black receiver loaded with ten 9
mm rounds of ammunition.56
There was a makeshift bedroom on the first floor of the residence where
King’s uncle slept in order to accommodate his physical limitations.57 There were
four bedrooms on the second floor.58 There was a second-floor front bedroom, two
hallway bedrooms, and a rear bedroom.59
In the second-floor front bedroom, police found mail addressed to Marzette
King. They also found a clear bag containing marijuana, three digital scales,
sandwich bags, and vacuum sealed bags.60
In the second-floor hallway bedroom, located next to the bathroom, the
police found two boxes of .38 special ammunition located in the top dresser drawer
55 June 14, 2016 Preliminary Hearing Transcript, at pg. 24. 56 As to ID No. 1606002410A: D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 9. 57 May 9, 2017 Trial Transcript, at pgs. 79-80. 58 June 14, 2016 Preliminary Hearing Transcript, at pgs. 26-28. 59 June 14, 2016 Preliminary Hearing Transcript, at pgs. 26-28. 60 D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 9-10, 25; May 9, 2017 Trial Transcript, at pgs. 47-49.
12 of the bedroom.61 The ammunition did not fit any of the guns found in the
residence and was not the sort of ammunition used for any of the firearms that
were recovered in the residence.62 In this bedroom, police also found a piece of
mail addressed to Marzette King, a tuxedo rental receipt with Marzette’s name on
it; male clothing in Marzette’s size, a photo album containing pictures of Marzette
King, and a marriage certificate with the name of Marzette King on it.63
As the State recognized, it was apparent that these two rooms were used by
Marzette King because these rooms contained mail addressed to him, his clothes,
his photographs, and his other personal belongings. Everything one would keep in
a bedroom.64
In the second-floor rear bedroom, police found mail addressed to Randy
Barber, two bags of marijuana, a digital scale, a black LG phone, and a black
Samsung smart phone.65 This bedroom belonged to Randy Barber because his
personal belongings and everything one would keep in a bedroom was in this
bedroom.
61 D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016; June 14, 2016 Preliminary Hearing Transcript, at pg. 27. 62 May 9, 2017 Trial Transcript, at pg. , 51-56, 61-62. 63 D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016. 64 May 9, 2017 Trial Transcript, at pgs. 51-56; May 11, 2017 Trial Transcript, at pgs. 7-8. 65 D.I. 1- Affidavit of Probable Cause attached as Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on June 15, 2016.
13 In a fourth bedroom, the bedroom located in the hallway north of the stairs,
the police found a black Anderson AM-15 rifle in the closet.66 The rifle was not
loaded.67 There was no ammunition found anywhere in the house that could be
used with this rifle.68 In this bedroom, the police also found mail addressed to
DaShawn King.69 There was male clothing piled up in the closet such that you
could not fully shut the closet door in this bedroom.70 The rifle was found in the
closet laying on top of clothing.71 The room looked as if no one had lived in there
for a long time.72
Using the same logic used to deduce the occupants of the other three
bedrooms, this bedroom belonged to Marzette’s brother DeShawn. His clothes
were there, his mail was there, and it looked like someone had not lived there for a
long time consistent with DeShawn being “away” from his bedroom for almost
three years.73
66 June 14, 2016 Preliminary Hearing Transcript, at pgs. 10, 25-26. 67 May 9, 2017 Trial Transcript, at pg. 58. 68 May 11, 2017 Trial Transcript, at pg. 23. 69 May 9, 2017 Trial Transcript, at pgs. 85-86. 70 June 14, 2016 Preliminary Hearing Transcript, at pg. 27; May 9, 2017 Trial Transcript, at pgs. 82-86. 71 May 10, 2017, at pgs. 133-134. 72 May 9, 2017 Trial Transcript, at pgs. 58-60, 82-86. 73 See, July 13, 2017 Sentencing Transcript, at pg. 24 (DeShawn lived at the residence but was “away” for almost three years). 14 DNA Test Results
The State conducted DNA testing on the three firearms. The DNA testing
was performed for Marzette King and Randy Barber. No DNA testing was
performed for DaShawn King or Marzette’s uncle, individuals related to Marzette
King either currently residing (Marzette’s uncle) or that had been residing
(DaShawn King) at the residence. These individuals were not related to Barber.
The DNA results are set forth in a report dated November 12, 2016. 74 The
DNA results are as follows:
• Gun No. 1: Canik 9 MM semi-automatic pistol (found under the seat cushions of the couch in the living room)
Grip- mixed DNA profile
Consistent with a mixture of at least three (3) individuals, at least one of which is male. No conclusions can be made due to the complexity of the mixtures.
Slide- mixed DNA profile
Consistent with a mixture of two (2) individuals, at least one of which is male. No conclusions can be made regarding the inclusion or exclusion of Marzette King and Randy Barber to this mixture.
Trigger- mixed DNA profile
Consistent with being a mixture of two (2) individuals, at least one of which is male. Marzette King can be included as a potential DNA contributor to this mixture. Randy Barber is excluded as a potential DNA contributor to this mixture.
74 As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A077-A080 (November 22, 2016 DNA Report); May 10, 2017 Trial Transcript, at pgs. 96-106. .
15 The probability of randomly selecting an unrelated individual that can be included as a contributor is, inter alia, 1 in 468 in the African American population.
Hammer- mixed DNA profile
Consistent with being a mixture of two (2) individuals. Marzette King and Randy Barber are excluded as potential contributors to this mixture.
Magazine- no conclusions can be made
Cartridge – no conclusions can be made
• Gun No. 2: Ruger 9 mm semi-automatic pistol (found under the seat cushions of the couch in the living room)
Consistent with a mixture of at least three (3) individuals, at least one of which is male. No conclusions can be made due to the complexity of the mixtures.
Consistent with a mixture of at least three (3) individuals, at least one of which is male. No conclusions can be made due to the complexity of the mixtures.
Consistent with being a mixture of two (2) individuals, at least one of which is male. The DNA profile of the major contributor is consistent with an unknown individual. No conclusions can be made regarding the minor DNA contributor.
Magazine- no DNA profile
Cartridge- no DNA profile
16 • Gun No. 3: Anderson 223 cal. rifle (found unloaded in DaShawn King’s bedroom closet)
Consistent with being a mixture of two (2) individuals, at least one of which is male. Marzette King can be included as a potential DNA contributor to this mixture. Randy Barber is excluded as a potential DNA contributor to this mixture.
The probability of randomly selecting an unrelated individual that can be included as a contributor is, inter alia, 1 in 2 in the African American population.
Consistent with a mixture of at least three (3) individuals, at least one of which is male. No conclusions can be made due to the complexity of the mixtures.
Consistent with being a mixture of two individuals. Marzette King can be included as a potential contributor to this mixture. Randy Barber is excluded as a potential DNA contributor to this mixture.
The probability of randomly selecting an unrelated individual that can be included as a contributor is, inter alia, 1 in 40,490 in the African American population.
Stock- mixed DNA profile
Consistent with a mixture of at least three (3) individuals, at least one of which is male. No conclusions can be made due to the complexity of the mixtures.
17 The DNA analyst testified at trial. She explained that when no conclusion
can be made, you cannot say whether the person is included or excluded.75
The DNA analyst further explained that when DNA is found, you do not
know when the DNA was actually left on an object or how it ended up on the
object.76
In sum, the DNA test results on the three guns at issue revealed that
Marzette King’s DNA could be included as a potential contributor on the trigger of
the Canik 9mm, and excluded as a contributor on the hammer. No conclusions
could be drawn on the grip, slide, magazine and cartridge of the Canik 9 mm gun.
As to the Ruger 9 mm, no conclusions could be drawn from the DNA testing as to
whether King could be included or excluded. On the Anderson rifle, Marzette
King’s DNA could be included as a potential contributor on the trigger and grip of
the Anderson 223 caliber rifle, no conclusions could be drawn on the slide or
stock.
As to Barber, the DNA results excluded him as a potential contributor from
the trigger and slide of the Canik 9 mm gun. No conclusions could be made as to
whether Barber was included or excluded as a potential contributor on the grip,
hammer, magazine and cartridge. As to the Ruger 9 mm gun, like Marzette King,
no conclusions could be drawn from the DNA testing as to whether Barber was
included or excluded as a potential contributor. On the Anderson rifle, Barber was 75 May 10, 2017 Trial Transcript, at pgs. 90-91, 97. 76 May 10, 2017 Trial Transcript, at pg. 116; May 11, 2017 Trial Transcript, at pg. 21. 18 excluded as a contributor on the grip and trigger. No conclusions could be made as
to whether Barber was included or excluded as a possible contributor on the slide
or stock.
The Plea Offers
Despite the C.S. observing Randy Barber with a firearm on several
occasions that he kept under the seat cushion of the couch in the living room, and
despite Randy Barber’s visceral reaction to the police officer’s questioning during
the search of the residence as to whether there were any firearms in the residence,
the State offered Randy Barber a plea to drug dealing marijuana and conspiracy
second degree, with a recommended sentence to probation.77
Despite the fact that no guns were found in Marzette’s vehicle, person or
bedrooms, and the only evidence possibly linking Marzette to the guns at issue
were the DNA test results, the State offered King a plea deal to one count of
PFDCF, with sentencing as a habitual offender, with a recommended sentence of
25 years incarceration.78
Barber accepted his plea offer. King rejected his plea offer.
On January 20, 2017, Barber pled guilty to Drug Dealing Marijuana and
Conspiracy Second Degree.79 During his plea colloquy, Barber admitted that on
77 As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A675 (Barber Plea Agreement). 78 Marzette King Plea Offer dated January 9, 2017. 79 As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A675 (Plea Agreement). 19 June 3, 2016, he knowingly possessed marijuana with the intent to deliver. 80
Barber also admitted that, on June 3, 2016, “while intending to promote or
facilitate the commission of the felony of drug dealing and possession of a firearm
during the commission of a felony, he agreed with Marzette King they would
commit one of the felonies, and one of them did some act in furtherance of the
felony.”81
A condition of the plea agreement was that Barber “forfeit any interest in the
firearms seized during this incident.”82 During the plea colloquy, Barber’s counsel
stated that the agreement to forfeit any interest in the firearms was “easy since Mr.
Barber never claimed an ownership interest in the firearm.”83 The Court followed
the State’s recommendation and sentenced Barber to probation.84
The plea agreement did not require Barber to testify at King’s trial.
As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at 80
A685-686 (January 20, 2017 Barber Plea Hearing, pgs. 8-9).
As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at 81
A686-687 (January 20, 2017 Barber Plea Hearing, pgs. 9-10).
As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at 82
A675 (Plea Agreement).
As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at 83
A683 (January 20, 2017 Barber Plea Hearing, pg. 6).
As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at 84
A691-693 (Barber Sentencing Order).
20 State’s Pretrial Interview with Barber
After Barber accepted his plea agreement, and while he was serving his
probation sentence, the charges against King proceeded to trial.
King’s trial was scheduled to begin on March 7, 2017,85 but was continued
until April 11, 2017.86 The parties thereafter mutually agreed to continue the trial
to May 9, 2017.87
The State arranged a meeting through Barber’s probation officer to interview
Barber about his trial testimony in King’s trial.88 It appears that this meeting took
place on April 5, 2017.89
The attendees at this meeting were two State Prosecutors, Investigating
Officer Neil Evans, and Randy Barber.90
This interview was not recorded and no contemporaneous notes were
provided.
Randy Barber, in his Affidavit dated January 25, 2022, represents that at the
meeting the State was insistent that he blame everything- the drug dealing and the
guns- on Marzette King and that he testify at King’s trial that everything belonged
85 As to ID No. 1606002410A: D.I. 15. 86 As to ID No. 1606002410A: D.I. 18. 87 As to ID No. 1606002410A: D.I. 21. 88 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion Exhibits D-H; As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A695- A696 (Affidavit of Barber). 89 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion Exhibits D-H. 90 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion Exhibit B (Affidavit of Officer Evans); As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A695-A696 (Affidavit of Barber).
21 to King. Barber told the State he would not do so. Barber told the State that he
never saw King with any guns. He further told the State that if called as a witness
at trial, he would testify that the guns were his (Randy Barber’s).91
Officer Evans, in his Affidavit dated September 4, 2024, recalls that at the
pretrial meeting, the State was insistent that Barber testify at King’s trial.92 Barber
expressed his refusal to do so. He recalls that a State Prosecutor made a statement
to the effect of: “Well, I’m putting you on the stand, and you’re going to testify.” 93
In response, Barber said: “That’s fine, if you put me up there, I’ll just say the guns
were mine.”94
After receiving King’s Amended Rule 61 motion, with Randy Barber’s
Affidavit as an exhibit to that submission, the State had an investigator interview
Barber. This interview was recorded and provided as Exhibit C to the State’s
response to the Rule 61 motion.95
In that recorded interview, Barber states that both he and Marzette King sold
marijuana from Marzette’s uncle’s residence where they both lived. Barber stated
that he never saw weapons in the house and he never saw King with any weapons.
91 As to ID No. 1606002410A: D.I. 71- Appendix to Defendant’s Amended Rule 61 Motion, at A695-A696 (Affidavit of Barber). 92 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion Exhibit B (Affidavit of Officer Evans). 93 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion Exhibit B (Affidavit of Officer Evans). 94 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion Exhibit B (Affidavit of Officer Evans). 95 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion, at pgs. 27-28, & Exhibit C (Randy Barber Rule 61 Interview Recording). 22 He further states that at the pretrial meeting with the State, the State wanted Barber
to testify and blame everything on King. Barber refused to do so.96
Barber also told the Investigator that after his pretrial meeting with the State
he called Marzette’s wife and told her what the State was trying to do- trying to get
him to blame everything on King.97
On the first day of trial the Court asked the State whether Barber would be
called as a witness. The State replied that it did not know yet.98
Barber was never called as a witness to testify at Marzette King’s trial.
It is undisputed that the State never advised Marzette King’s trial counsel of
Barber’s statements during this pretrial meeting.
Marzette King’s Trial
At King’s trial, the State essentially air brushed Barber completely out of the
drug dealing operations.
Prior to the start of King’s trial, the State dropped the conspiracy charge
against King.99 There was no mention at King’s trial of Barber’s plea. There was
no mention that (as part of that plea) Barber had admitted that on June 3, 2016, that
he was dealing marijuana and that he had conspired with King to do so.
96 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion, Exhibit C (Randy Barber Rule 61 Interview Recording). 97 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion, at pgs. 27-28, & Exhibit C (Randy Barber Rule 61 Interview Recording). 98 May 9, 2017 Trial Transcript, at pg. 24. 99 See, May 9, 2017 Trial Transcript, at pg. 14. 23 The State never mentioned that it was alerted to the residence at issue
because it had received information from a C.S. that Barber was selling marijuana
from the residence and that he (Barber) kept a firearm under the seat cushion of the
couch in the living room, which the C.S. had seen Barber handle on several
occasions.
The State never introduced the controlled buy during which Marzette King
sold one bag of marijuana to the Confidential Informant outside the residence,
while Barber was standing on the porch during the transaction. After the
transaction, King handed Barber a large bag of marijuana and he (Barber) took the
bag inside the residence.
The State’s trial presentation painted the picture of King as the only drug
dealer living in the residence and that the drug dealer needed protection leading to
the only and inevitable conclusion that the guns had to be King’s because nobody
else in that house was dealing drugs.
King’s trial began on May 9, 2017. The State called five witnesses. It first
called Corporal Neil Evans who testified about the arrest of King and the search of
his car and residence and the finding of the three guns inside the house.100
On cross-examination, King’s trial counsel brought out Barber’s visceral
reaction to the police inquiry as to whether there were any firearms in the
residence.101
100 May 9, 2017 Trial Transcript, at pgs. 38-69. 24 The State then called a ballistics expert, Corporal Henry Law who testified
that he was not able to obtain any identifiable fingerprints on the firearms.102 The
third witness was Ashley Rush from the Department of Forensic Science who
testified that the substances seized were marijuana.103 The fourth witness was
Sergeant Andrew Lloyd who testified as a drug dealing expert. He testified that
King possessed marijuana with the intent to deliver it, that drug dealers needed
guns for protection, and that the guns found in the house were part of the drug
dealing operation.104
Finally, the State called Niyrai Dawn Hall, a forensic DNA analyst, who
testified about the DNA evidence.105
The State’s theme throughout the trial, which it emphasized during closing
argument, was that King was running a drug house on June 3, 2016, and while
doing so he possessed three firearms.106 Randy Barber was a user. 107 King was
the drug dealer. Drug dealing is a dangerous business. Drug dealers need firearms
to protect their product and themself.108 This was the defendant’s operation, the
defendant’s drugs, the defendant’s guns, and the defendant’s drug dealing.109
101 May 9, 2017 Trial Transcript, at pgs. 78-79. 102 May 9, 2017 Trial Transcript, at pgs. 94-102. 103 May 10, 2017 Trial Transcript, at pgs. 8-25. 104 May 10, 2017 Trial Transcript, at pgs. 28-52. 105 May 10, 2017 Trial Transcript, at pgs. 81-116. 106 May 11, 2017 Trial Transcript, at pg. 7. 107 May 11, 2017 Trial Transcript, at pg. 11, 13. 108 May 11, 2017 Trial Transcript, at pg. 9-13. 109 May 11, 2017 Trial Transcript, at pg. 31.
25 King was convicted of all the charges.
The State moved to declare King a habitual offender on all six of the gun
charges. For each of the three guns, King was convicted of PFDCF and PFBPP.
King was sentenced to 25-years imprisonment for each conviction of PFDCF, and
15-years imprisonment for each conviction of PFBPP. 40-years imprisonment per
gun, for a total period of 120-years imprisonment. He was sentenced to probation
on the other convictions of drug dealing marijuana, PABPP, and possession of
drug paraphernalia.
KING’S RULE 61 MOTION
King raised a number of claims in his Amended Rule 61 motion. Because
this Court finds that the failure to disclose the potentially exculpatory statements
made by Barber during his pretrial interview with the State was a Brady violation
and that, as a result thereof, the judgment should be set aside and a new trial held,
it is unnecessary to address any of the remaining issues raised.
The 120- year question in this case was did King constructively possess the
three firearms found in the residence. There was no direct evidence that showed
that King had knowledge of the firearms or possessed those firearms.
Of the three guns, King’s DNA profile was included as a potential
contributor on the trigger of one of the guns found under the couch, and his DNA
profile was found as a potential contributor on the grip and trigger of the rifle
26 found in the closet in his brother’s room. King’s uncle also resided at the
residence, and his brother had resided at the residence, but no DNA testing was
performed on either of these related individuals.
The only evidence potentially linking King to these two guns was the DNA
test results. There were no DNA test results that potentially linked King to the
second gun found under the couch.
Barber, King’s co-defendant, also lived at the residence and was also a drug
dealer. Barber was not related to any of the other individuals residing in the
residence, and therefore, it was improbable that his DNA could match theirs.
A C.S. told the police that Barber sold marijuana from the residence and
kept a gun under the cushions of the couch, which the C.S. had seen Barber handle
on several occasions. At the time of the search, when the police asked Barber if
there were any guns in the house, Barber had a visceral reaction. He became very
nervous and his entire body started to shake. He started breathing heavily and
started to perspire. He looked over at the couch and then immediately looked
away. He then told the police that there were no firearms in the residence. Based
on Barber’s reaction, the police had no doubt that Barber knew that there were
firearms under the couch.110
At the time of King’s trial, Barber had already accepted a plea to probation.
There was no condition of the plea that Barber testify at King’s trial. The State
110 June 14, 2016 Preliminary Hearing Transcript, at pg. 24. 27 met with Barber to discuss his trial testimony at King’s trial. Barber claims that at
that pretrial meeting, the State was insistent that he blame everything on King – the
guns and drugs, but that Barber refused to do so. Barber told the State that he never
saw King with any guns and that if called to testify at King’s trial, he would testify
that the guns were his.
Officer Evans was also at the meeting. In his September 4, 2024 Affidavit,
he recalls that the State was insistent that Barber testify at King’s trial but Barber
was adamant in his refusal to do so. A State Prosecutor told Barber that despite his
refusal to testify, he was going to call him as a witness. Barber said that if called
to testify at King’s trial, he would testify that the guns were his.
Later, in a recorded interview with the State sometime after he provided his
Affidavit to King’s Rule 61 counsel, Barber reiterated that at the pretrial meeting
the State kept insisting that Barber blame everything on King, but that Barber
refused to do so. Barber again stated that he never saw King with any weapons.
This time, Barber stated that he too also never saw any weapons in the house.
The State never disclosed Barber’s statements made during this pretrial
meeting to King’s trial counsel. The State never called Barber as a witness at trial.
It is undisputed that King’s trial counsel never knew that Barber, if called as a
witness at trial, was going to testify that the guns were his and that he never saw
King with any guns.
28 Even if Barber had said at the meeting, that he never saw King with any
guns and he too was not aware of the existence of any guns in the house, that
would still be exculpatory and impeaching. The one thing we know beyond any
reasonable doubt is that Barber was aware of the existence of the guns under the
couch.
To understand the material effect that Barber’s trial testimony would have
had on King’s trial, you only need to review the State’s closing argument at King’s
trial.
[King’s] business, his DNA, on June 3rd 2016, the defendant’s business was running a drug house, and while doing so he possessed three firearms. 218 West 22nd Street is a drug house, plain and simple. . . I want to talk to you a little bit about Randy Barber, the other person in the house, the other person who was not bedridden in the house. His DNA is excluded from the Canik gun, his DNA is excluded from the long gun. He is found with a small amount of marijuana, he’s found with one scale in his room, he’s a user. . . The defendant used every part of his house and his vehicle as part of this business. . . [T]he defendant was running a marijuana sale operation to start in his room and ended in his car. You saw that he had access to three firearms in the midst of that operation.111
And the State’s rebuttal:
You heard the DNA expert testify that if secondary transfer were to occur, the first person’s DNA would also be on that item. Randy Barber’s DNA was excluded from the guns. This was not secondary transfer, this was the defendant’s operation, the defendant’s drugs, the defendant’s guns, and the defendant’s dealing.112
111 May 11, 2017 Trial Transcript, at pgs. 7-16. 112 May 11, 2017 Trial Transcript, at pg. 31. 29 As an aside, the State’s arguments in its closing and rebuttal that Randy
Barber’s “DNA was excluded from the guns” is misleading and incorrect.
Barber’s DNA was excluded as a potential DNA contributor on the trigger of the
Canik 9 mm gun, and both King and Barber’s DNA were excluded as a potential
DNA contributor on the hammer of the Canik 9 mm gun. No conclusions as to
whether Barber could be included or excluded could be drawn on the slide, grip,
magazine and cartridge of that gun. When there is no conclusion that can be drawn,
there is not enough information to conclude whether the person is included or
excluded.113 It is therefore misleading and incorrect to state that Barber’s DNA
was excluded from this gun.
Likewise, no conclusions could be drawn as to the grip, slip, trigger,
magazine and cartridge of the Ruger 9 mm. Barber’s DNA was not excluded from
this gun. There were no conclusions that could be drawn from any part of this gun.
As to the Anderson rifle, Barber was excluded as a potential contributor on
the grip and trigger. No conclusions could be drawn as to whether he could be
included or excluded on the slide, trigger or stock.
Turning back to the Brady issue, Barber’s suppressed pretrial statements to
the State were material and relevant to the most significant issue in the case- who
owned or possessed the firearms. A Brady violation is shown when the suppressed
113 May 10, 2017 Trial Transcript, at pg. 90-91, 97. 30 evidence could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.114
The United States Supreme Court held in Brady v. Maryland115 that when
the State suppresses evidence that is favorable to the accused and material to either
guilt or punishment, the State violates the defendant’s right to due process
irrespective of good faith or bad faith of the prosecution.116 The touchstone of due
process analysis in cases alleging a Brady violation is the fairness of the trial, not
the culpability of the prosecutor.117
Under Brady and its progeny, the prosecution in criminal proceedings has a
constitutional obligation to disclose exculpatory and impeachment evidence within
its possession to the defense when that evidence might be material to the outcome
of the case.118
A Brady violation occurs where the State fails to disclose material evidence
that is favorable to the accused, because it is either exculpatory or impeaching,
causing prejudice to the defendant.119 A new trial will be ordered when the State
fails to provide the defendant with material evidence that is favorable to the
accused.120 Impeachment evidence falls within the Brady rule. Such evidence is
114 Kyles v. Whitley, 115 S.Ct. 1555, 1558 (1995). 115 373 U.S. 83 (1963). 116 Brady, 373 U.S. at 87; Wright v. State, 91 A.3d 972, 987-989 (Del. 2014). 117 Wright v. State, 91 A.3d 972, 993 (Del. 2014). 118 Ray v. State, 280 A.3d 627, 646 (Del. 2022). 119 Wright v. State, 91 A.3d 972, 977 (Del. 2014). 120 Atkinson v. State, 778 A.2d 1058, 1062 (Del. 2001). 31 evidence favorable to the accused, so that, if disclosed and used effectively, it may
make the difference between conviction and acquittal.121
The three prong test to determine whether there is a violation of the Brady
rule includes: (1) evidence exists that is favorable to the accused, because it is
either exculpatory or impeaching; (2) the evidence is suppressed by the State; and
(3) the suppression prejudices the defendant.122 The failure to produce evidence
will not, by itself, constitute a Brady violation. Brady requires the State to provide
evidence to the defendant when there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.123
It is important to emphasize that determining whether the proceeding would
have been different does not require the Court to find that the defendant would
have been acquitted.124 Rather, the defendant must show that the State’s evidence
creates a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.125 A reasonable
probability of a different result occurs where the government’s evidentiary
suppression “undermines confidence in the outcome of the trial.”126
121 Id. 122 Starling v. State, 882 A.2d 747, 756 (Del. 2005); Wright v. State, 91 A.3d 972, 987-989 (Del. 2014). 123 Starling, 882 A.2d at 756. 124 Atkinson v. State, 778 A.2d 1058, 1063 (Del. 2001). 125 Wright v. State, 91 A.3d 972, 987-989 (Del. 2014). 126 Id. 32 Those accused of crimes are afforded the right to a fair trial, which is
understood to mean a trial with a “verdict worthy of confidence.”127 Consequently,
the burden of showing a reasonable probability of a different result only requires
the defendant to show that the suppressed evidence “undermines the confidence in
the outcome of the trial.”128
In this case, all three prongs are met. First, the evidence suppressed was
favorable to King, because it was either exculpatory or impeaching. Second, the
evidence was suppressed by the State. Third, the suppression prejudiced the
defendant.
The State argues that because Barber said that after the pretrial meeting he
told King’s wife that the State was trying to get him to blame everything- the guns
and drugs- on King and that he was refusing to do so, King is precluded from
raising this Brady issue at this time. However, nobody knows what was actually
conveyed to King’s wife by Barber. Nobody knows if, in fact, anything was
conveyed to her and that, if so, whether she thereafter relayed the communication
to King. King’s wife is not an attorney. King’s wife either was not told about
Barber’s exculpatory statements or failed to appreciate the significance of those
statements. What is known, and undisputed, is that King’s trial attorney was never
made aware of Barber’s expected trial testimony.
127 Atkinson v. State, 778 A.2d 1058, 1063 (Del. 2001). 128 Id.
33 When a defendant is serving a 120-year prison sentence, relief from the
State’s Brady violation should not rest on whether the witness making the
exculpatory statement mentioned something about it to another layperson. The
State’s obligation is to advise King’s trial counsel of the statements and it is
undisputed that the State did not do so.
The State also claimed that it did not bring Barber’s statements to King’s
trial attorney’s attention because it believed that Barber’s statements of ownership
of the firearms was false, and therefore, neither favorable nor exculpatory. The
State reasoned that since Barber had already pled guilty and been sentenced, he
faced no legal danger by making “such a bald assertion.”129
In order for the State to discharge its responsibility under Brady, the
prosecutor must disclose all relevant information obtained by the police or others
in the Attorney General’s Office to the defense.130 Here, Barber’s statements,
whether believed by the prosecution team or not, were potentially exculpatory and
material.
A prudent prosecutor will resolve doubtful questions in favor of
disclosure.131 This is as it should be. Such disclosure will serve to justify trust in
the prosecutor as the representative of a sovereignty whose interest in a criminal
129 As to ID No. 1606002410A: D.I. 82- State’s Response to Rule 61 Motion, at pg. 27. 130 Wright v. State, 91 A.3d 972, 987-989 (Del. 2014). 131 Kyles v. Whitley, 115 S.Ct. 1555, 1568-1569 (1995). 34 prosecution is not that it shall win a case, but that justice will be done. 132 And it
will tend to preserve the criminal trial, as distinct from the prosecutor’s private
deliberations, as the chosen forum for ascertaining the truth about criminal
accusations.133
The prosecutor’s job is not to be the gatekeeper and is not to make
credibility decisions as to the truthfulness of the potentially exculpatory testimony
of the co-defendant that go to the very heart of this case. The prosecutor’s job is to
disclose this potentially exculpatory evidence to defense counsel and then let the
jury do its job.
The third component- materiality does not require the defendant to show that
the disclosure of the suppressed evidence would have resulted in an acquittal. 134
Evidence falls within a Brady violation when the evidence if disclosed and used
effectively, might make the difference between conviction and acquittal.135 A
Brady violation is shown when the favorable evidence could reasonably be taken
to put the whole case in such a different light as to undermine confidence in the
verdict.136 While King is not entitled to a perfect trial, he is entitled to a fair one
132 Id. 133 Id. 134 Wright v. State, 91 A.3d 972, 987-989 (Del. 2014). 135 Id. at 989. 136 Kyles v. Whitley, 115 S.Ct. 1555, 1558 (1995). 35 where material exculpatory and impeachment evidence is disclosed and not
suppressed.137
The reviewing court may consider any adverse effects from nondisclosure
that resulted on the preparation and presentation of the defendant’s case.138
In this case, Barber’s testimony, if used effectively, might have made the
difference between King’s conviction and acquittal. Barber’s testimony that the
guns were his, to be sure, does not prove King’s innocence. Of course, possession
of an object may be the joint possession of two or more persons acting in
concert.139 The jury could find that both Barber and King constructively possessed
one, two or all three of the firearms. At 40 years imprisonment for each firearm
conviction, an acquittal on any one or more of the three firearms would
significantly reduce King’s sentence.
In the trial, as presented, the State completely removed Barber out of the
drug dealing operations and centered the trial around the theme that King was
running a drug house, and Barber was a user. Drug dealers need guns for the drug
dealing operation. King was the only drug dealer in the residence therefore the
guns had to be his.
137 See, Wright v. State, 91 A.3d 972, 977 (Del. 2014). 138 Wright v. State, 91 A.3d 972, 987-989 (Del. 2014). 139 Stevenson v. State, 2018 WL 1136524, *2 (Del. 2018); Lecates v. State, 987 A.2d 413, 426 (Del. 2009)(constructive possession may exist either directly or through another person). 36 The presentation of King’s case could have been markedly different if
King’s trial counsel was aware that Barber would testify that he never saw King
with any guns and that the guns were his (Barber’s).
In the trial as presented, the jury never learned that Barber was also a drug
dealer. The jury never learned of the controlled drug transaction witnessed by the
police in which both King and Barber participated. The jury never learned that a
C.S. identified Barber as a drug dealer selling marijuana from the residence and
that Barber kept a firearm under the seat cushion of the couch which the C.S. had
observed on several occasions. The jury never learned that Barber admitted to, and
was convicted of, drug dealing and conspiring to drug dealing and possessing
firearms on the date at issue.
Although King’s trial counsel did raise Barber’s visceral reaction to the
police inquiry when asked whether there were any firearms in the house during the
execution of the search warrant, without knowledge that Barber was also selling
drugs from the house, his reaction standing alone had no context.
In this case, there was no overwhelming proof that the guns at issue were
King’s. There was no evidence that anybody ever saw King with any of the guns.
The guns were not found in King’s car, or in either of the two bedrooms he used
in the residence. The only evidence linking King to the guns was the DNA test
results.
37 If King’s trial counsel had been made aware that Barber was going to testify
that the guns were his and that he never saw King with the guns, trial counsel
would have been able to present the jury with a viable alternative, another
individual living in the house also dealing marijuana, that the guns could have
belonged to. The evidence was material and relevant to the most important issue in
the case, who owned or possessed the firearms.
The issue is not whether the State would have had a case to go to the jury if
Barber’s statements had been disclosed, but whether we can be confident that the
jury’s verdict would have been the same.140 Confidence that it would have been
cannot survive a recap of the suppressed evidence and its significance for the
prosecution. The jury would have been entitled to find that:
• Barber was credible and truthful that the guns were his and that he
never saw King with the guns.
• If Barber testified that he never saw any guns, and never saw King
with any guns, the jury would in all likelihood find that Barber was
not telling the truth about his knowledge of the guns under the
couch. The jury would almost certainly conclude that the guns
were Barber’s. The 120-year question would become, in addition
to the guns belonging to Barber, did they also belong to King.
140 Kyles v. Whitley, 115 S.Ct. 1555, 1575 (1995).
38 • The State argues that Barber claimed that he would testify that the
guns were “mine”, but he did not say they were “all mine”. But
Barber also said that he never saw King with any guns. Barber
claiming the guns were his and that he never saw King with any
guns, infers that the guns were all Barber’s. That would be the
issue for the jury to resolve. The State would be able to argue to
the jury that the guns were not only Barber’s but also King’s, and
the defense would be able to argue that the guns were only
Barber’s.
But this is a far different issue presented to the jury than the issue
presented at trial- that King was the only drug dealer, Barber a user,
and therefore, the guns had to belong to King since there was no
other viable alternative. Now the jury is presented with a choice, a
viable alternative.
• The jury could find that the investigation was limited to the State’s
uncritical readiness to believe that King was in possession of the
guns that led to the disparate treatment of Barber and King in the
resolution of the charges. (ie. Barber was given a plea to probation
but the State sought significant jail time for King).
39 • The jury could reasonably find that the rifle found in King’s
brother’s closet belonged to Barber, or to King’s brother, or to
someone else in the house. Again, there is now a viable alternative
to the guns having to belong to King because he is the only drug
dealer in the house.
Of course, the jury could also find that the guns, while Barber’s, were also
King’s. But the issue is not whether Barber’s suppressed testimony would have
resulted in an acquittal. The issue is whether in light of the suppressed statements,
King received a fair trial. King’s potential defense was significantly impaired by
the suppression of this exculpatory evidence. Since all of these possible findings
were precluded by the prosecution’s failure to disclose the evidence that would
have supported them, “fairness” cannot be stretched to the point of calling this a
fair trial.
Because the net effect of the suppressed evidence favoring King raises a
reasonable probability that its disclosure to competent counsel would have made a
different result reasonably probable, the conviction cannot stand, and King is
entitled to a new trial.
40 REMAINING ISSUES
Although it is unnecessary to address any of the other issues raised in King’s
Rule 61 motion, the Court would be remiss if it did not make one final observation.
As to the unloaded rifle in King’s brother’s bedroom, the State’s drug-
dealing expert, Sergeant Lloyd, testified at trial that the AM-15 long gun found in
Bedroom No. 2 was “the ultimate home defense system.”141
The State, in its closing argument, stated: “[King’s] business, his DNA, on
June 3rd, 2016, the defendant’s business was running a drug house, and while
doing so he possessed three firearms. . . . The next part of [King’s] business,
upstairs security, bedroom No. 2. Inside, an AM-15 long gun rifle. . . [D]rug
dealing is a dangerous business, drug dealers need firearms to protect themselves
and to protect their product, what better way to protect your product than having
that long gun between your product and the stairs.”142
Perhaps the AM-15 long gun rifle may be the “ultimate home defense
system”, if it had been loaded, or if there was ammunition stored someplace
nearby. But this rifle was unloaded and there was no ammunition found anywhere
in the house. This rifle was not serving as the “ultimate home defense system” on
June 3, 2016.
The concept of this unloaded rifle, found in the closet of King’s brother’s
room, with no ammunition anywhere in the house, serving as the “ultimate home 141 May 10, 2017 Trial Transcript, at pg. 41. 142 May 11, 2017 Trial Transcript, at pgs. 7-9. 41 defense system” is overreaching. Afterall, it really could not be used for its
intended purpose. And yet King is serving a 40-year prison sentence for his
convictions related to this rifle.
CONCLUSION
Barber’s statements made to the State were both favorable to King and
material in that it may have affected the outcome of the trial. Because the State
withheld this evidence making it unavailable for the preparation and presentation
of King’s case, there was a reasonable probability of a different result had the
favorable evidence the State withheld been provided prior to trial.
For all of the foregoing reasons, Marzette King’s Motion for Postconviction
Relief should be granted, the judgment set aside, and a new trial held.
IT IS SO RECOMMENDED.
/s/ Lynne M. Parker Commissioner Lynne M. Parker
cc: Prothonotary John A. Barber, Esquire
Related
Cite This Page — Counsel Stack
State v. King, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-king-delsuperct-2025.