State v. Miller

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) Plaintiff, ) ) Case No.: 1611008842A/B v. ) ) KEVIN MILLER, ) Defendant. )

Submitted: November 14, 2025 Decided: December 8, 2025

ORDER AND OPINION Upon Consideration of Defendant’s Motion for Postconviction Relief - DENIED

Elizabeth R. McFarlan, Deputy Attorney General, Attorney General’s Office, 820 N. French Street, 7th floor, Wilmington, Delaware, Attorney for the State.

Christopher S. Koyste, Esquire, Law Office of Christopher S. Koyste LLC, Wilmington, Delaware Attorney for Defendant.

Jones, J.

1 On April 22, 2022, Kevin “Chevy” Miller (“Miller”) filed a pro se Motion for

Postconviction Relief pursuant to Superior Court Criminal Rule 61 (“Rule 61

Motion”) and a request for appointment of counsel.1 The Court appointed counsel

for the instant postconviction proceedings, and an Amended Opening Brief was filed

on November 6, 2024. 2 Trial Counsel filed an Affidavit in Response to Miller’s

Motion on April 22, 2025. 3 A Supplemental Amended Motion was filed on August

6, 2025 adding an Erlinger claim.4 The State filed its Response on September 2,

2025. 5 Defendant filed a Reply Brief on November 14, 2025.

I. BACKGROUND AND PROCEDURAL HISTORY

Miller’s convictions, and the instant Postconviction Motion, stem from an

incident which took place on July 17, 2012, in the neighborhood Brookmont Farms. 6

On the evening of this date, Jeremiah “Farmer” McDonald (“McDonald”) was with

two women in the Heron Street cul-de-sac when a person in a wolf mask approached

him and shot him multiple times.7 McDonald was pronounced dead at the scene,

and the initial investigation was left as a cold case with no arrests. 8 However, in

1 Docket Item (“D.I.”) 166. 2 D.I. 184. 3 D.I. 202. 4 Erlinger v. United States, 602 U.S. 821 (2024). 5 D.I. 209. 6 Miller v. State, 270 A.3d 259, 262 (Del. 2022). 7 Id. 8 Id.

2 2016, the New Castle County Cold Case Homicide Squad reopened the investigation

which led to the arrest and indictment of Miller.9

On November 21, 2016, Miller was indicted on charges of Murder First Degree,

Possession of a Firearm During the Commission of a Felony (“PFDCF”), and

Possession of a Firearm By a Person Prohibited (“PFBPP”). 10 The State reindicted

Miller on April 23, 2018 and added the charge of Witness Tampering.11 The Trial

Court found Miller guilty of PFBPP at a severed bench trial, and a jury found Miller

guilty of the other two charges. 12 Subsequently, the Trial Court declared Miller a

habitual offender and sentenced him to a life sentence plus thirty-five (35) years.13

The Delaware Supreme Court affirmed the Superior Court on Miller’s timely

appeal. 14

Before the Court is Miller’s Motion for Postconviction Relief which asserts

multiple allegations of Trial Counsel’s inefficiencies and a Brady violation by the

State. The following facts are pertinent to these allegations.

A. Pre-Trial Investigation

9 Id. 10 D.I. 184 p.1. 11 Id. 12 Id. p.2. 13 Id. 14 Id. p.3.

3 On July 17, 2012, law enforcement responded to 911 calls from Warner “Gene”

Wheeler (“Wheeler”) and Shantell Newman reporting a shooting in Brookmont

Farms.15 The victim, McDonald, was pronounced dead on scene. 16

Ms. Newman and Marquita Brooks were standing with McDonald when he was

shot. Ms. Newman testified that she saw “an individual walking from by the lights,

I just see a furry hoodie, a big jacket, and when the individual comes close – I mean,

it’s a mask, it’s a shiny mask.” 17 Ms. Brooks testified that the shooter “came from

behind,” McDonald and was wearing a “big fleece coat that had fur on the head, it

looked like a mask up under it.” 18 She specified the mask to look like an “animal

mask.”19 Ms. Brooks further stated that the shooter fled “between some [nearby]

houses.”20 Neither Ms. Newman nor Ms. Brooks could identify the individual. 21

On July 20, 2012, law enforcement executed a search warrant at 6 Heron Court,

also known as the “Trap House,” where law enforcement found a mask and two

jackets, one with a fur collar.22 Detective Shahan testified at trial that Mr. Wheeler,

Ms. Newman, and Ms. Brooks confirmed the mask in the Trap House was not the

one on the shooter.23

15 D.I. 184 p.5. 16 Id. 17 Id. (quoting A261-262). 18 Id. (quoting A254). 19 Id. 20 D.I. 184 (quoting A255). 21 Id. 22 Id. p.6. 23 Id.

4 During his interview on October 31, 2012, Mr. Wheeler told law enforcement

that he observed Miller wearing a wolf mask and walking towards Heron Court from

Flamingo Drive on the night of the incident.24 Mr. Wheeler further stated he then

saw Miller walk down Heron Court’s cul-de-sac, shoot McDonald, and then flee

through a nearby opening between houses. 25

The case became a cold case until 2016 when Detective Shahan and Sergeant

David re-opened the investigation in which they interviewed several people and

indicted Miller on charges related to McDonald’s death. 26

Law enforcement interviewed Wheeler again on January 22, 2016. 27 During this

interview, Wheeler shed light on what was happening in Heron Court earlier in the

day. 28 He stated “everybody was playing games with each other. They had a

paintball gun, BB guns, and everybody was running around wearing masks shooting

each other, playing.”29 He identified individuals he saw wearing masks earlier in

the day as “Boo,” “Bell,” “D-Man,” and “M-7/M7.” 30 Additionally, Mr. Wheeler

recounted the following events leading up to the shooting:

Mr. Wheeler indicated that he left the “Trap House” in order to retrieve a beer from Tamika Gary’s residence 44 Heron Court. (A114). As he crossed to the other side of Heron Court, Mr. Wheeler noticed that there was a jeep backed into a driveway a few houses down from the “Trap

24 Id. (See A38-76). 25 D.I. 184 p.6. 26 Id. 27 Id. (See A102-166). 28 D.I. 184 p.6. 29 Id. p.7. (quoting A110). 30 D.I. 184 p.7 (quoting A149; 154-56).

5 House”. (A116-18). Inside the jeep, Mr. Wheeler indicated that “Boo” and “Bell” were smoking weed and that “M-7/M7” could have also been inside the jeep. (A116-18; A145; A149).

After retrieving the beer, Mr. Wheeler claimed he returned to the front step of Ms. Gary’s residence which is where he alleges that he saw Mr. Miller put on the wolf mask, walk down Heron Court, and then shoot Mr. McDonald.31 (A118-22).

The same day, law enforcement interviewed Ms. Gary. 32 She ensured that Mr.

Wheeler was inside her home, 44 Heron Court, at the time of the incident because

of his probation-enforced curfew. 33 She further stated that Mr. Wheeler did not tell

her anything he saw that night.34

Law enforcement interviewed Miktrell Spriggs, “Bell,” on March 5, 2018.35 Mr.

Spriggs told law enforcement that he was in New Jersey at the time of the incident

and not at the crime scene, as other individuals claimed. 36

B. Witness Testimony at Trial

The State called multiple witnesses to testify to Miller’s conduct before, during,

and after the incident.37

31 D.I. 184 p.7. 32 Id. p.7-8. (See A167-193). 33 D.I. 184 p.8; n.11. 34 Id. p.8. 35 Id. p.8. (See A905-925). 36 Id. 37 See also, the Delaware Supreme Court decision on Miller’s direct appeal which summarized the trial testimony. Miller at 270 A.2d at 262-266.

6 Krystal Bivings, the mother of McDonald’s daughter, testified that her

relationship with Miller created animosity between Miller and McDonald.38 She

also testified that the morning after the incident, Miller called her to check on her

and stated that he was in Newark at the time of the shooting.39

James Watson’s 2013 and 2016 pretrial statements to law enforcement were

entered into the record via Detective Shahan under 11 Del. C. § 3507.40 At first, Mr.

Watson refused to testify if people from Brookmont Farms were in the courtroom,

likely due to witness intimidation concerns.41 Additionally, Mr. Watson stated

“[j]ust give me the capias, then, I’m not getting on that stand in front of those

people.”42 Eventually, Mr. Watson agreed to take the stand but stated he did not

recall the night of the incident nor making either statement. 43 The entire 2016

pretrial statement was played into the record. 44 Detective Shahan read parts of Mr.

Watson’s 2013 pretrial statement.45 The significant portions read into the record

include:

(1) [J]ust before the murder, Mr. Watson was standing at the end of a driveway on Heron Court when he saw someone with a gray wolf mask on walk from the side of the house; (2) the individual in the mask then pointed a gun at him to which Mr. Watson responded “stop playin”

38 Id. p.9. 39 Id. 40 D.I. 184 p.9 (See A282). 41 Id. 42 Miller v. State, 270 A.3d 259, 263-64 (Del. 2022). 43 D.I. 184 p.9. 44 Id. 45 Id. p.10.

7 before running to the other side of the house; (3) the masked individual then walked up to Mr. McDonald and shot him.46

Mr. Watson’s identification of Miller to law enforcement was also read into the

record.

Q. Detective asks, “When did you say somebody’s name,” what is Mr. Watson’s answer? A. “Nah. After a while down the line, and me and my peoples were talkin’, I’m like “yo, I’m like ‘yo the first person that popped in my mind was such and such, I’m like…” Q. Detective Eckerd asks, ‘Was who?” What is the answer? A. “Some dude named Chevy.” Q. And when Detective Eckerd asks why, what does Mr. Watson say? A. “Because like I’m from Brookmont, you feel what I’m sayin’? So I’ve been out there my whole life so if you – if I grew up with you all my life if you walk up on me you don’t got to say nothing’ I know what you look like by, by the way you figures like I’m thinkin’ like you know what I’m sayin’ damn somebody this height, this description damn like. Some – one the thing – I’m like yo’ I wanted to talk about my people, like yo’ what I seen dude I wanted to say yo’ stop playin’ Chevy, but like uh, stuck you know what I’m sayin’. But I’m like damn I’m glad I didn’t it ‘cause it might not have been him, but that’s the first logical think that popped in my mind, like yo’ stop playin’. You know what I mean? Like I’m sure if I’m went up Brookmont and rob somebody, somebody would be like I know it was Bocker and you got say nothing’. Just by my frame, the way I walk, like you know what I’m sayin’ like, but it might – that’s just what I thought, you know what I mean?” 47

The State additionally called Michael Mude who testified that a few days before

the incident Miller asked Mr. Mude where he could find McDonald.48 Mr. Mude

further stated that on the day of the incident he witnessed Miller on the phone asking

46 Id. (citations omitted). 47 Id. p.10 (quoting A286). 48 Id.

8 about the whereabouts of an individual and then heading towards a neighborhood

near Brookmont Farms. 49 Mr. Mude testified to several conversations with Miller

indicating admissions, including: (1) Miller telling Mr. Mude he was not concerned

about witnesses to the murder because “Motherf***ers that seen me do it know

better than to say my name, and the people that know I did it ain’t going to say

s**t;”50 (2) Miller informing Mr. Mude he was at McDonald’s funeral “keeping up

appearances, making it look good;” 51 and, finally, (3) Miller told Mr. Mude he could

“end up just like [his] boy Farmer” when Miller saw Mr. Mude’s memorial tattoo

for McDonald.52 Mr. Mude also testified that after Miller told him he was “starting

to worry him,” Miller subsequently responded with a threat: “I don’t need to tell you,

I know where your mom live.” 53 During cross-examination of Mr. Mude, Trial

Counsel had the opportunity to question Mr. Mude on his cooperation with the

State. 54 Mr. Mude responded that he spoke to law enforcement in 2014 with the

intent to get consideration for his criminal charges in Delaware, but he did not get

any. 55

49 D.I. 184 p.11 (See A327) (Miller “read [a] text, picked up the phone, and he called and he said ‘He’s out there right now, where at?’ Then he said, ‘Just keep him right there.’” Miller told the individual on the phone to “[d]o whatever you got to do, talk to him, I’ll be right there five minutes.” 50 A373. 51 Id. 52 Id. 53 Id. 54 D.I. 184 p.12. 55 Id.; A376.

9 Mr. Wheeler testified to what he told law enforcement in his 2016 pretrial

statement concerning the night of the incident.56 As to Miller’s witness tampering,

Mr. Wheeler explained that he gave false statements to Miller’s attorney in January

2018 “to help [Miller] out” after Miller discovered Mr. Wheeler gave statements to

the police.57 Mr. Wheeler also stated that Miller asked him to talk to his attorney.58

Further, Mr. Wheeler testified that him and Miller would talk on the phone “in code,”

then Mr. Wheeler would receive letters from Miller with instructions on what Miller

wanted Mr. Wheeler to do.59

Finally, the State admitted Tony Pruitt’s pretrial statement via forfeiture by

wrongdoing.60 In his statement, Mr. Pruitt told law enforcement that Miller told him

to “tell [his] boy [Mr. McDonald] Halloween is coming early.” 61 Additionally,

following Mr. Pruitt being served with a subpoena in person at the Office of the

Attorney General, Mr. Pruitt informed his probation officer, as well as Amy Miller,

“that he was terrified, that he had been threatened, that he did not want to go to

court.”62 After being told by his probation officer to still show, Mr. Pruitt did not

appear pursuant to the subpoena.63 Police discovered that Mr. Pruitt, from a phone

56 A425-27. 57 A453-54; 461; 463; 485. 58 A456-57. 59 A464; 466-69; 479. 60 D.I. 184 p.13 (citing A409). 61 Id. (citing A406). 62 A388. 63 A389.

10 collected pursuant to a valid search warrant, that he informed a family member via

text that five people showed up to his place of work. 64 Furthermore, the phone also

revealed a text between an individual and Detective Shahan, that “Mr. Pruitt himself

had been threatened not to come to court, that they saw his picture that he was going

to testify,” as Mr. Pruitt’s photo was displayed in the opening. 65

Following Mr. Pruitt’s failure to appear pursuant to the subpoena, Mr. Pruitt

subsequently testified that his absence was due to the fear he had for his family’s

life. 66 As a result, Mr. Pruitt was in prison for his failure to appear.67 The Court

ultimately found that “the government has shown that defendant has some type of

wrongdoing, witness intimidation, that the wrongdoing was intended to procure the

declarant’s unavailability, and that the wrongdoing did procure his unavailability.”68

Trial Counsel first called two witnesses, Dashanna Jones and Rose Miller, to

support Miller’s alibi.69 Ms. Jones, the mother of one of Miller’s children, testified

on cross that Miller told her he was “in Smyrna with my wife” for a reason outside

of this case.70 Trial Counsel sought this testimony to show Miller was not giving

different alibis for the night of the incident.71 Ms. Miller, Miller’s wife, testified that

64 Id. 65 A390. 66 A419 67 Id. 68 A569 69 Id. 70 A642-43. 71 A640.

11 Miller was living in Frenchtown Woods, near Maryland’s border, in 2012, and that

she spoke to him the night of the murder.72 Ms. Miller testified that she spoke to

Miller on his landline, but the State refuted this by playing a prison call in which

Ms. Miller recalled talking to Miller that night on his cellphone.73

Trial Counsel also called Gregory Johnson, a former prison acquaintance of

Miller and Mr. Wheeler. Mr. Johnson testified to a phone call with Mr. Wheeler

who indicated when he arrived at Heron Court after the murder Miller was not

there. 74 Finally, Trial Counsel admitted photos of the crime scene through William

Browne, the private investigator. 75 Mr. Browne also testified to the distance during

Mr. Wheeler’s alleged identification of Miller. 76

C. Post-Trial Interview of Tamika Gary

In his investigative report, Mr. Browne describes his post-trial interview of

Tamika Gary on April 9, 2020. 77 Ms. Gary told Mr. Browne that Mr. Wheeler

testified falsely against Miller “because he owed Miller $20,000 and he believed that

Miller was having a relationship with her.”78 Ms. Gary also apprised Mr. Browne

of Mr. Wheeler’s observations and whereabouts on the night of the incident:

…on the night of the incident, she believed that Wheeler was home at 32 Teal Circle, between the hours of 10:00 pm and 11;00 [sic] pm

72 D.I. 184 p.13. 73 A741-42. 74 D.I. 184 p.13. 75 Id. 76 Id. See A651-56 77 A835-36. 78 A835.

12 because he was on probation as a level 3 sex offender and he knew that his probation officer would routinely conduct home visits during those hours to insure [sic] compliance with his curfew. Ms. Gary said that Wheeler showed up at her house on the night of the murder just after 11:00 pm. He did not say that he witnessed anything. Ms. Gary confirmed that she could not say where Wheeler was prior to arriving at her home.

I asked Ms. Gary if she and Wheeler had any conversation about what he observed at any time. She said that after the police had been looking for him and questioned him, he assured her that he didn’t see anything and he had been in his house at the time of the murder.79

D. Postconviction Investigation

Postconviction Counsel hired another private investigator, Stephen Kempski.80

Mr. Kempski took pictures of the crime scene during the day and night, measured

the distance between Miller and Mr. Wheeler during the alleged identification, and

interviewed witnesses, including Mr. Spriggs, Mr. Bradley, and Ms. Gary.81 Each

witness provided Mr. Kempski with information consistent with their prior

statements to either law enforcement or Mr. Browne.82

Postconviction Counsel also retained Dr. Suzanne Mannes to testify to Mr.

Wheeler’s ability to identify Miller the night of the incident.83 Dr. Mannes is of the

opinion that, considering factors such as the lighting, distance, and the use of a mask,

Mr. Wheeler “could not see, and thus could not identify the perpetrator’s face.” 84

79 Id. 80 D.I. 184 p.15. 81 A926-79. 82 Id. 83 A846-57. 84 A851.

13 II. GROUNDS FOR RELIEF

Miller puts forth five (5) grounds for relief which the Court summarizes as

follows:

1. Trial Counsel was ineffective for failing to present impeachment evidence

against Mr. Wheeler’s identification of Miller.

2. Trial Counsel was ineffective because he did not call an expert witness to

refute Mr. Wheeler’s identification of Miller.

3. The State committed a Brady violation by failing to timely disclose evidence

which was crucial to the defense’s impeachment of Mr. Wheeler.

4. Trial Counsel was ineffective for failing to object at trial to the reading of

inadmissible hearsay evidence – Mr. Watson’s 2013 pretrial statement.

5. The above violations amount to cumulative error which resulted in a violation

of Miller’s rights and a deprivation of a fair trial.

III. PROCEDURAL BARS UNDER RULE 61(i)

Before the substantive arguments of a Rule 61 Motion can be addressed, the

Court must first ensure the Motion passes all procedural bars.85 The Court does not

need to consider the merits of claims that do not surpass all procedural bars.86

85 State v. Appiah, 2023 WL 5608927 (Del. Super. Ct. Aug. 28, 2023) (citing Younger v. State, 580 A.2d 552, 554 (Del. 1990)). 86 Younger, 580 A.2d at 552.

14 First, a Rule 61 Motion “may not be filed more than one year after the judgment

of conviction is final.” 87 In the case that a defendant files a direct appeal, a final

judgement of conviction occurs “when the Supreme Court issues a mandate or order

finally determining the case on direct review.”88 The period does not begin to run

until the date that the court hearing direct appeal issues an order or mandate. 89 The

Delaware Supreme Court issued a decision from Miller’s direct appeal on January

11, 2022.90 Miller’s initial motion for postconviction relief was filed on April 22,

2022. 91 Therefore, Miller’s motion is timely and is not impacted by this procedural

bar.

Second, a movant may not file a second or subsequent Rule 61 Motion. 92 The

instant motion for postconviction relief is Miller’s first, therefore this procedural bar

is inapplicable. 93

Third, “any ground for relief not asserted in the proceedings leading to judgement

of conviction” is procedurally barred unless the movant can show “cause for relief

from procedural default” and “prejudice from violation of movant’s rights.”94

Generally, ineffective assistance of counsel claims are not procedurally barred under

87 Super. Ct. Crim. R. 61(i)(1). 88 Id. R. 61(m)(1)(ii). 89 State v. Allen, 2024 WL 1654514, at *12 (Del. Apr. 15, 2024) (citing Felton v. State, 945 A.2d 594 (Del. 2008). 90 Miller v. State, 270 A.3d 259 (Del. 2022). 91 D.I. 166. 92 Super. Ct. Crim. R. 61(i)(2). 93 D.I. 166. 94 Super. Ct. Crim. R. 61(i)(3)(A)-(B).

15 this provision because these claims cannot be brought in proceedings leading to

conviction under Court rules and precedent nor are they heard for the first time on

direct appeal.95 However, if petitioner cannot sufficiently show counsel’s

performance amounted to ineffective assistance of counsel, then there is no cause

for relief from the procedural bar.96 When that is the case, petitioner cannot surpass

this procedural bar solely on the basis that these claims could not be brought in prior

proceedings.97

On the other hand, a Brady violation accusing the prosecution of misconduct can

be brought on direct appeal and in a defendant’s conviction proceedings. 98 Thus, a

failure to raise a Brady violation in prior proceedings is subject to the procedural bar

absent a showing of cause and prejudice.99 Miller did not raise the alleged Brady

violation until the instant Postconviction Motion. Nonetheless, Miller asserts the

claim is not procedurally barred because he can show cause for relief and prejudice

from violation of his rights.100 To show cause, Miller must present an “external

impediment” which “prevented counsel from constructing or raising the claim.”101

95 Green v. State, 238 A.3d 160, 175 (Del. 2020); State v. Bartell, 2023 WL 7905368 (Del. Super Ct. Nov. 16, 2023); see McGriff v. State, 2024 WL 3770733, at *2 (Del. August 12, 2024) (“[t]he procedural bars of Rule 61 do not bar a timely claim of ineffective assistance of counsel.”) 96 Shelton v. State, 744 A.2d 465, 475 (Del. 2000). 97 Id. 98 McGriff, 2024 WL 3770733, at *2 (holding Defendant’s Brady violation claim barred by Rule 61(i)(3) because Defendant failed to contest the matter during trial, bring up on direct appeal, and provide a basis for cause-and- prejudice from the procedural default.) 99 Id. 100 D.I. 184 p. 52-53. 101 Younger, 580 A.2d at 556 (citing Murray v. Carrier, 477 U.S. 478, (1986) (“[W]e hold that counsel’s failure to raise a particular claim on appeal is to be scrutinized under the cause and prejudice standard when that failure is

16 Miller argues Appellate Counsel could not raise the Brady violation on appeal

because the State has yet to provide the defense with Mr. Bradley’s custodial record

containing “crucial impeachment information.” 102

Finally, “any ground for relief that was formerly adjudicated,” including

“proceedings leading to the judgment of conviction, in an appeal, in a postconviction

proceeding, or in a federal habeas corpus proceeding” is barred. 103 None of the

claims in Miller’s Motion have been formerly adjudicated, therefore, Miller

surpasses this procedural bar.

Rule 61(i)(5) provides several exceptions to the procedural bars discussed above.

It precludes these bars from applying to claims that the court lacked jurisdiction over

and to subsequent postconviction motions made that meet one of the following

requirements: either (1) the motion “pleads with particularity” that new evidence has

come to light creating a “strong inference the movant is actually innocent,” or (2)

the motion “pleads with particularity” that a constitutional law reviewed

retroactively by the Delaware Supreme Court or the Supreme Court of the United

States invalidates movant’s conviction. 104 These exceptions do not apply to

treated as a procedural default by the state courts…cause for a procedural default on appeal ordinarily requires a showing of some extern impediment preventing counsel from constructing or raising the claim.”). 102 D.I. 184 p.52. 103 Id. R. 61(i)(4). Compare State v. Allen, 2024 WL 1654514 (Del. Super. Ct. Apr. 15. 2024) (holding Rule 61(i)(4) inapplicable to their Brady violation claim raised on appeal because the Delaware Supreme Court found the claim to be speculative and did not “address the underlying merits,” leading the Court to not fully adjudicate the claim), with Appiah, 2023 WL 5608927, at *15-16 (holding Defendant’s Brady violation claim is procedurally barred by Rule 61(i)(4) because this claim was brought up at trial and was the basis for Trial Counsel’s motion for a mistrial denied by the Court; therefore, the claim was fully adjudicated at proceedings leading to Defendant’s conviction.) 104 Super. Ct. Crim. R. 61(d)(2)(i)-(ii).

17 Defendants postconviction motion because he does not argue lack of jurisdictional

claims nor is it a subsequent motion.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

In Strickland v. Washington, the United States Supreme Court established the

standard for an ineffective assistance of counsel claim for a criminal defendant.105

The standard is a two-prong test requiring both prongs be met before a judgment is

set aside.106 The Strickland Court emphasizes the importance of reviewing the

court’s responsibility to make an ineffective assistance determination without “the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the

time.” 107

The first prong, or the performance prong, asks whether counsel’s representation

was deficient in failing to meet an objective standard of reasonableness. 108 This is a

stringent burden for the movant to overcome because there is a “strong presumption

that counsel’s conduct falls within a wide range of reasonable professional

assistance.” 109 The objective standard utilized in this prong considers “prevailing

professional norms” in determining the reasonableness of counsel’s actions.110

105 466 U.S. 668, 687 (1984). 106 Id. at 689. 107 Id. 108 Id. 109 Id. at 689. 110 Neal v. State, 80 A.3d 935, 941 (citing Strickland, 466 U.S. at 689).

18 “[C]ounsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.” Therefore, “in any

ineffectiveness case, a particular decision not to investigate must be directly assessed

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

to counsel’s judgments.”111

If the performance prong is met, we move onto the second prong, or the prejudice

prong, to determine whether deficiencies in counsel’s representation caused the

defendant substantial prejudice. 112 Under this prong, the defendant must show

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” 113 The potential of a different

outcome “must be substantial, not just conceivable.” 114 A reasonable probability is

a probability “sufficient to undermine confidence in the outcome” of the

proceeding. 115

Claim I: Trial Counsel’s Failure to Investigate and Present Impeaching Evidence of Mr. Wheeler

Miller argues Trial Counsel had the ability, yet neglected to, thoroughly

investigate and pursue evidence to impeach the State’s key witness in identifying

Miller – Mr. Warner “Gene” Wheeler (“Wheeler”).116 Specifically, Miller asserts

111 Strickland, 466 U.S. at 691. 112 Id. at 687. 113 Id. at 694. 114 Neal, 80 A.3d at 942 (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)). 115 Id. 116 D.I. 184 p. 21.

19 four potential witnesses whose testimony could have impeached Wheeler’s

testimony. 117

In Wheeler’s 2016 pretrial statement to law enforcement, he stated that he saw

“Boo,” “Bell,” “D-Man,” and “M-7/M7” wearing masks while “running around” and

“playing games” on the day of the incident. 118 Wheeler also indicated that he saw

Boo, Bell, and possibly M7 sitting in a driveway two doors down from the Trap

House in a Jeep as Miller was headed in his wolf mask to shoot McDonald.119

Postconviction Counsel retained a private investigator, Mr. Stephen Kempski

(“Kempski”), who investigated into the identities of Boo, Bell, and M7.120 Kempski

identified Bell as Miktrell Spriggs (“Spriggs”).121 Spriggs confirmed with Kempski

that he was living in New Jersey at the time of the incident – what he repeatedly told

police in his 2018 pretrial statement.122 Kempski also pinned down D-Man as

Demarius Bradley (“Bradley”) and established that Bradley was incarcerated at the

Ferris School at the time of the incident. 123 M7, identified as Mercedes Taylor

(“Taylor”), stated to law enforcement in his 2013 pretrial statement that he was

117 Id. p. 21-30. 118 D.I. 184 A154-155. 119 Id. A148-49. 120 Id. p. 22-23. 121 Id. p. 23 A928. 122 Id. A905-07, 911-12, 915. 123 Id. p.23 A 928-29.

20 inside the Trap House during the incident and not sitting in the Jeep with Boo and

Bell as Wheeler suggested.124

Tamika Gary (“Gary”) provided conflicting testimony between her 2016 pretrial

statement to law enforcement and her posttrial interview with Browne. In her 2016

statement, Gary told law enforcement that Wheeler was inside her home at the time

of the incident.125 However, in Browne’s report of his interview with Gary, he

represents that Gary told him that Wheeler’s trial testimony was “malicious,” that

Wheeler believed Miller and Gary were in a relationship and was jealous, and that

Wheeler owed Miller $20,000. 126 Gary further told Browne that she believed, on the

night of the incident, Wheeler was in his house between 10pm and 11pm because he

had a curfew check for probation and that he arrived to Gary’s residence at 11pm.127

Gary gave a similar statement to Kempski during her postconviction investigation

interview.128

Miller contends the above witnesses should have been investigated further,

interviewed, and called as defense witnesses to impeach Wheeler’s credibility.129

By failing to do so, Miller argues that Trial Counsel acted ineffectively and

124 Id. p. 24 A82, 85, 93. 125 D.I. 184 A170, 173, 186. 126 Id. A835. 127 Id. 128 Id. A946, 952-55. 129 Id. p.24, 29.

21 prejudiced Miller’s chance at a fair trial because Wheeler was the State’s key

identification witness. 130

Trial Counsel ensures he conducted a full investigation, interviewed potential

witness, and inspected the crime scene.131 Following this review, trial counsel

formed a defense strategy. Trial counsel noted that the individuals who spoke with

his investigator offered nothing favorable to the defense and they did not want to get

involved. He admits Wheeler’s eyewitness testimony is prominent, but the State had

more helpful evidence to its case, including Watson’s pretrial testimony, Miller’s

confession to Mude, Pruitt’s testimony, and Miller’s witness intimidation charges.132

Trial Counsel did not find witness statements given six years after the incident

reliable nor did he believe testimony undercutting who Wheeler claimed he “saw or

drank with prior to the shooting” impacts his credibility.133 Further, Trial Counsel

asserts that he made a strategic choice to not call Gary as a witness as “her testimony

would possibly do more harm to the defense.”134 This is because her changed

testimony made her an unreliable and non-credible witness, and the statements given

to the investigators were unsupported opinions. 135

130 Id. p.30-33. 131 D.I. 202 p.1-2. 132 Id. p.2. 133 Id. 134 Id. p. 4-5. 135 Id.

22 Trial Counsel also points out that Mr. Wheeler stated that Bradley was “playing

games” in the area at the time of the murder. Defendant does not demonstrate with

certainty that Mr. Bradley is the same person. Additionally, it does not appear that

Mr. Bradley was interested in providing any additional help to the defense. Other

than stating that he was 17 years old at the time of the shooting and that he was in

the Ferris Detention Center, Mr. Bradley “declined to answer any further questions

about the matter.”

It also does not appear that Mr. Spriggs would have been helpful to the defense

as his account of the events have been vague and contradictory. In an interview with

a detective, Mr. Spriggs stated that he was definitely in New Jersey at the time of the

murder. When the detective asked Mr. Spriggs how he knew he was in New Jersey

at the time, Mr. Spriggs no longer appeared to be as certain and responded: “I can’t

tell you like exactly I know, but I just know.” When asked when he came back from

New Jersey, Mr. Spriggs answered: “I’m not even sure. I was like back and forth.”

He could not recall who told him about the murder. The detective also pointed out

to Mr. Spriggs that multiple people stated that he was present in the area when the

murder occurred. Likewise Mr. Spriggs informed Investigator Kempski that “other

individuals had said that he was in the area of the shooting at the time, but refuted

those claims…” Mr. Spriggs’ account is vague and contradictory and that other

23 witnesses could have refuted it severely undermines Defendant’s argument that Trial

Counsel was ineffective for failing to call him as a witness.

Defendant’s arguments that these two individuals could have meaningfully

impeached Mr. Wheeler are based upon layers of speculation. And this is not enough

to overcome the presumption that Trial Counsel’s conduct was professionally

reasonable, nor does Defendant’s speculation, in any way, meet the high burden

required to assert a valid ineffective assistance of counsel claim.

Miller relies on Starling v. State to support his argument. In Starling, the

Delaware Supreme Court held that the trial counsel acted ineffectively by failing to

cross-examine the State’s sole eyewitness concerning a prior photograph

identification of the defendant in which the eyewitness stated that the man in the

picture – the defendant – was not the shooter The court reasoned “where eyewitness

testimony played a central role in the State’s case, and no physical evidence linked

[defendant] to the crime, Trial Counsel’s failure to use important exculpatory

evidence fell below any objective standard of reasonableness and was ineffective

representation.”

The instant case differs in two ways from Starling. First, the evidence Miller

alleges Trial Counsel is ineffective for not raising, goes to the credibility of

Wheeler’s memory on the day of the incident and not to exculpatory evidence.

Second, Trial Counsel in this case made a strategic decision to not call the above-

24 mentioned witnesses for reasons pertaining to reliability and memory. Trial

Counsel’s strategic decision made after a thorough investigation of law and facts is

“virtually unchallengeable.”136 Strategic choices made after a “less than complete”

investigation, are reasonable “to the extent that reasonable professional judgments

support the limitations on investigation.” 137 Trial counsel in Starling simply forgot

to cross examine the eyewitness on the issue. 138

In contrast to Starling where trial counsel merely forgot to cross examine the

eyewitness at issue, Trial Counsel’s decision here to not call Ms. Gary as a witness

was a strategic and tactical one based on Ms. Gary’s previous inconsistent

statements. Indeed, Ms. Gary’s statement to Investigator Kempski that Mr. Wheeler

was not at her home during the murder would likely not have been helpful to

Defendant because it is inconsistent with her pretrial statement to police that Mr.

Wheeler “was inside of her residence at the time of the murder and that ‘he might

been upstairs in the bedroom or something…’”139 But she changed her account

during Investigator Kempski’s interview by stating that Mr. Wheeler was not at the

house. Moreover, there is no indication that Trial Counsel was aware of this version

of her story, and it should be “viewed with suspicion…” as it is inconsistent with

136 Strickland, 466 U.S. at 690-91. 137 Id. 138 Starling, 130 A.3d at 324, 326. 139 Rule 61 Motion at 27.

25 what she told the police. 140 “Review of counsel’s representation is subject to a strong

presumption that the representation was professionally reasonable.” 141 Following

that rule, it is the Court’s opinion that Trial Counsel’s reasonable tactical decision

should not be second-guessed given the prior inconsistency of Ms. Gary’s

statements.

C. Claim II: Trial Counsel’s Failure to Call an Identification Expert to Undermine Mr. Wheeler’s Identification of Miller

Next, Miller claims Trial Counsel was ineffective for failing to call an

identification expert witness to discount Wheeler’s identification. 142 Miller bases

this argument on the findings of Postconviction Counsel’s retained expert, Dr.

Mannes. Dr. Mannes produced a report which considered multiple factors in

reaching her conclusion that “[Mr. Wheeler] could not see, and thus could not

identify the perpetrator’s face.”143 The factors Dr. Mannes evaluated include (1) the

200-foot distance between Wheeler and Miller; (2) the short period of time Miller’s

face was visible before putting on the mask; and (3) the time of day and poor lighting

from where Wheeler could see. 144 Miller maintains there is reasonable doubt that

the State would have met its burden if Trial Counsel presented an identification

expert at trial because Wheeler was the State’s sole eyewitness. 145

140 See Blankenship, 447 A.2d at 433. 141 Flamer v. State, 585 A.2d 736, 753 (Del. 1995). 142 D.I. 184 p.35. 143 Id. p.37 A851. 144 Id. A849-50. 145 D.I. 184 p.40.

26 Trial Counsel denies this claim.146 Trial Counsel asserts he found no value in

calling an expert witness because he crossed Wheeler on issues similar to that relied

upon by Postconviction Counsel’s expert – including lighting, distance, and potential

obstructions. 147 Further, Trial Counsel contends because the incident took place four

years before Miller’s arrest, the testimony as to the physical surroundings at the time

of trial changed. 148

Trial Counsel did attempt to undermine Mr. Wheeler as an eyewitness. In his

affidavit, Trial Counsel writes that “Wheeler’s identification was based upon his

personal knowledge of [Defendant]” and that Trial Counsel “attacked Wheeler on

bias, conditions of the lighting and distance from the crime” and that he “saw no

value in calling an expert.” 149 Trial Counsel also entered photos taken of the crime

scene area and from Google maps showing visual obstructions, and at closing he

attacked Mr. Wheeler’s eyewitness account by, again, pointing out that the crime

occurred at night; that Mr. Wheeler was almost 200 feet away from the crime; and

that, shortly after the crime, it was so dark in the area that the police needed to use

lights to collect evidence.150 An expert is not needed to explain the obvious to the

jury that “it is difficult to see in the dark and at distances.”151 As “Trial Counsel

146 D.I. 202 p.6. 147 Id.; see A424-27, 501-02, 520, 563, 148 D.I. 202 p.7. 149 Tr. Counsel Affidavit at 6. See also, A490-502, A508-57. 150 A775-76, A779. 151 D.I. 209 p.21.

27 succinctly put it, ‘[t]he argument that it was dark, the only witness was far from the

scene, was apparent without an expert.’” 152 This Court finds that it was not

ineffective assistance of Trial Counsel to not call an expert to merely state the

obvious, that it is more challenging to see at night from a distance.

D. Claim IV: Trial Counsel’s Failure to Object to Inadmissible, Speculative Hearsay from Mr. Watson’s 2013 Pretrial Statement

Next, Miller claims Trial Counsel was objectively unreasonable in allowing

Detective Shahan to read into the record Watson’s 2013 pretrial statement because

it is speculative hearsay under Delaware Rules of Evidence (“DRE”) 602 and

801(d)(1). 153

Due to Watson’s limited testimony 154, the State sought to admit Watson’s pretrial

statements via 11 Del. C. §3507 which allows a “voluntary out-of-court statement

of a witness who is present and subject to cross-examination” to be used “as

affirmative evidence with substantive independent testimonial value.”155 Watson

was deemed a recalcitrant witness as he would only agree to testify if there was no

one from Brookmont Farms in the gallery. 156 Upon party agreement, the State played

Watson’s 2016 pretrial statement and read into the record portions of his 2013

pretrial statement, 157 including the following identification:

152 Id. p.22 (citing D.I. 202 p.8). 153 D.I. 184 p.55. 154 Watson stated he had no memory of the night of the incident nor his 2013 pretrial statement. A279-80, 283. 155 11 Del. C. § 3507; see D.I. 184 A279. 156 D.I. 209 p.5. 157 A280, 283, 285-86.

28 Q. Detective asks, “When did you say somebody’s name,” what is Mr. Watson’s answer? A. “Nah. After a while down the line, and me and my peoples were talkin’, I’m like ‘yo, I’m ‘yo the first person that popped in my mind was such and such, I’m like…” Q. Detective Eckerd asks, “Was who?” What is the answer? A. “Some dude named Chevy.” Q. And when Detective Eckerd asks why, what does Mr. Watson say? A. “Because like I’m from Brookmont, you feel what I’m sayin’? So I’ve been out there my whole life so if you – if I grow up with you all my life if you walk up on me you don’t got to say nothin’ I know what you look like by, by the way you figures like I’m thinkin’, like you know what I’m sayin’ damn somebody this height, this description damn like. Some – one the thing – I’m like yo’ I wanted to talk about my people, like yo’ what I seen dude I wanted to say yo’ stop playin’ Chevy, but like uh, stuck you know what I’m sayin’. But I’m like damn I’m glad I didn’t say it ‘cause it might not have been him, but that’s the first logical thing that popped in my mind, like yo’ stop playin’. You know what I mean? Like I’m sure if I’m went up Brookmont and rob somebody, somebody would be like I know it was Bocker and you got say nothin’. Just by my frame, the way I walk, like you know what I’m sayin’ like, but it might – that’s just what I thought, you know what I mean?”158 Miller first argues the above statement contains double hearsay which is

inadmissible unless each layer of hearsay “qualif[ies] independently as an exception

to the hearsay rule.” 159

Miller acknowledges 11 Del. C. §3507 is an exception to hearsay but offers that

it “does not permit a court to admit otherwise-inadmissible embedded hearsay within

the §3507 statement.”160 Miller argues Watson’s statement “after a while down the

158 A286. 159 Demby v. States, 695 A.2d 1152, 1162 (Del. 1997). 160 D.I. 184 p.58 (citing Downs v. State, 2019 WL 1040407, at *4 (Del. 2019)).

29 line, and me and my peoples were talkin’” suggests that Watson’s identification of

Miller “was directly derived from the out-of-court statements made to Mr. Watson

by his ‘peoples’ as is evident by Mr. Watson’s own concession that ‘it might not

have been [Mr. Miller].” 161 This statement is not hearsay. Watson’s testimony does

not suggest to the Court that he did not identify Miller as the shooter until after he

talked to his people or based upon what his people told him. In fact, his statement

is clear in that he told his people the first person he thought of was “Chevy” – a.k.a.

Miller.

Watson’s statement was, “[a]fter a while down the line, me and my peoples were

talkin’, I’m like ‘yo, I’m like ‘yo the first person that popped into my mind was”

Defendant.162 The State sets forth:

In no way does this statement contain out-of-court- statements made by Mr. Watson’s “peoples.” Mr. Watson merely states that he was talking to his “people” at some point without providing any hearsay statements. Mr. Watson states that “the first person that popped” into his mind when he was identifying the person in the mask was Defendant, indicating that he made the identification on his own and without the need for statements made by others. 163 There is no indication that another party made an out-of-court statement that led

Mr. Watson to believe it was Defendant wearing the mask. Consequently, it shows

161 D.I. 184 p.58 (citing A286). 162 D.I. 209 p.24. 163 Id. p.24-25.

30 that the statement from Watson’s 2013 pre-trial statement was not formulated

because of talking with his “people.” In short, the statement is not hearsay.

Objecting to this statement would not have changed the outcome because

Watson’s identification still properly came out through his trial testimony.

Next, Miller argues that Trial Counsel should have objected to Watson’s

statement under DRE 602.164 DRE 602 states that “a witness may testify to a matter

only if evidence is introduced sufficient to support a finding that the witness has

personal knowledge of the matter.”165 Miller contends Watson did not have personal

knowledge that the individual he saw was Miller because Watson did not see the

individual without the werewolf mask on.166

It is evident from Watson’s testimony that he observed the masked individual to

be Miller based on his longstanding personal knowledge of his figure and stature.

As stated above, Watson’s testimony reflects that he believed the individual was

Miller before talking to other people and not after. Additionally, Miller asserts

Watson’s testimony “cause it might not have been him” discredits Watson’s

identification. The Court disagrees and finds the proceeding statement, “but that’s

the first logical thing that popped in my mind, like yo’ stop playin” 167 as well as the

rest of Watson’s testimony to support his identification of Miller. As a result, the

164 D.I. 184 p. 60. 165 DEL. R. EVID. 602. 166 D.I. 184 p.61. 167 Id. p.10 (quoting A286)

31 Court finds that Watson had sufficient personal knowledge of the matter for his

testimony to be permissible pursuant to DRE 602. 168

V. BRADY VIOLATION

A Brady violation occurs when the prosecution violates the defendant’s due

process rights by suppressing favorable evidence that is “material either to guilt or

punishment, irrespective of the good faith or bad faith of the prosecution.” 169 The

prosecution has duty to investigate and turn over favorable evidence that is “known

to the others acting on the government’s behalf in the case, including the police.”170

However, Brady does not impose a duty on the prosecution to “ferret out any

potential defense-favorable information from materials that are so disclosed,” nor

“furnish a defendant with information which [s]he already has or, with reasonable

diligence, she can obtain for [her]self.”171

The three components of a Brady violation include: (1) the existence of

exculpatory or impeaching evidence that is favorable to the accused; (2) suppression

of that evidence by the State; and (3) the suppression prejudices the defendant.172

Prejudice in this respect means there is a “reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been

168 DEL. R. EVID. 602. 169 Brady v. Maryland, 373 U.S. 83, 87 (1963). 170 Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). 171 State v. McGuiness, 2022 WL 1580601, at *4 (quoting Wright v. State, 91 A.3d 972, 987 (Del. 2014)). 172 Wright v. State, 91 A.3d 972, 988 (Del. 2014).

32 different,”173 and this reasonable probability “undermines confidence in the outcome

of the trial.”174 The defendant must show that the evidence suppressed “creates a

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

of the proceeding would have been different.”175 A conviction will not be reversed

based on a Brady violation if there is “overwhelming evidence establish[ing a

defendant’s] guilt.”176 A new trial is only required if the Court finds that

“undisclosed Brady information materially affected Defendant’s right to a fair

trial.”177

A defendant must be procedurally able to bring his Brady claim, meaning there

are no procedural bars preventing him from doing so. As asserted by the State,

Delaware Superior Court Criminal 61(i)(3) places sufficient bars on this claim as the

Brady allegation should have been raised on appeal. In addition to, and in analysis

of Miller’s Brady claim, the Court does not find such a violation.

Miller’s Claim III asserts the State failed to disclose evidence critical to impeach

their key eyewitness – Wheeler.178 The evidence at issue is the impeachment

evidence concerning “D-Man” – or Demarius Bradley’s – custodial status on the day

of the incident.179 Miller asserts this evidence would bring to light the “clear factual

173 Starling v. State, 130 A.3d 316, 333 (Del. 2015) (quoting Jackson v. State, 770 A.2d 506, 517 (Del. 2001)). 174 Kyles v. Whitley, 514 U.S. 419 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). 175 Starling, 130 A.3d at 333. 176 Id. (quoting Jackson v. State, 770 A.2d 506, 517 (Del. 2001)). 177 State v. Andrus, 2010 WL 2878871, at *8 (Del. Super. July 22, 2010). 178 D.I. 184 p.45. 179 Id.

33 inaccuracies” in Wheeler’s testimony which stated that Bradley was “playing

games” in Brookmont Farms on the day of the incident when he was actually

incarcerated at the Ferris School. 180 Miller contends the operator of the Ferris

School, Delaware’s Division of Youth Rehabilitative Services, should be considered

a part of the “prosecution team” because the Delaware Attorney General’s Office

exercises control over that Division as well as its parent division, Department of

Services for Children, Youth, and their Families.

Trial Counsel “would agree that a Brady violation warrants a New Trial, if in fact

the issue of who Wheeler was with prior to the shooting was relevant.” 181 However,

Trial Counsel contends the violation is not crucial to the defense because, like the

other individuals’ testimony Miller claims were key impeachment evidence, the

interviews were conducted years after the incident. 182 Further, Trial Counsel

maintains that proving Wheeler misidentified who was in the Trap House or the Jeep

at the time of the incident would not overcome material evidence at trial. 183

There was an overwhelming amount of evidence against Miller which would not

constitute grounds for reversal of a conviction, even if there were a violation of

Brady, given the magnitude of overwhelming evidence establishing Miller’s guilt.184

180 Id. p.46. 181 D.I. 202 p.8. 182 Id. p.10. 183 Id. p.10-11. 184 Starling v. State, 130 A.3d 316, 333 (Del. 2015) (quoting Jackson v. State, 770 A.2d 506, 517 (Del. 2001)).

34 Mr. Watson was able to identify Miller as the shooter despite not seeing his face, as

Mr. Watson recognized Miller since they grew up together in Brookmont. 185 Mr.

Mude testified that prior to the incident, Miller asked him were McDonald lived.186

The day after McDonald’s murder, “Miller admitted to the shooting stating, ‘[n]ah.

Mother f*ckers that seen me do it know better than to say my name, and the people

that know I did it ain’t going to say sh*t.’” 187 Mr. Mude was also threatened by

Miller with statements such as “I don’t need to tell you, I know where your mom

live” and “listen mother f*cker, you can end up just like your boy Farmer.”188 Mr.

Wheeler identified Miller as in the testimony as the shooter, and Mr. Wheeler also

received threatening phone calls to not testify, specifically “karma may miss you but

it will hit your kids.”189 Finally, Pruitt was told by Miller to “tell McDonald that

‘Halloween is coming early.’” 190

To support his argument, Miller cites to numerous Circuit Court cases, including

United States v. Pelullo.191 In Pelullo, the Court acknowledged the general principle

that “the prosecution is only obligated to disclose information known to others acting

on the government’s behalf in a particular case.”192 In applying this principle, the

185 Miller v. State, 270 A.3d 259, 264 (Del. 2022). 186 Id. 187 Id. 188 Id. at 265. 189 Id. 190 Id. 191 399 F.3d 197 (3d. Cir. 2005). 192 Id. at 218 (citing United States v. Merlino, 349 F.3d 144 (3d. Cir. 2003); United States v. Locascio, 6 F.3d 924 (2d. Cir. 1993)).

35 Court held a government agency which was not in a “joint investigation” nor

“otherwise shared labor or resources” with the prosecution was not a part of the

“prosecution team.” 193 Pelullo does not suggest, as Miller argues, that because

agencies are under the umbrella of the same governmental department the agency

members, whom the prosecution exerts no control over, are part of the “prosecution

team” for Brady purposes. 194 The prosecution does not have a duty “to learn of

information possessed by other government agencies that have no involvement in

the investigation or prosecution at issue.”195 Thus, the Division of Youth

Rehabilitative Services, which had no role in this case, is not in the “prosecution

team” merely because it falls under the Delaware Attorney General’s Office. While

Departments and Divisions of the Attorney General’s Office very well may share

labor and resources, the proper inquiry is whether there were shared labor and

resources pertaining to the investigation at hand.196

Additionally, Miller cites to Atkinson v. State to support his argument. Atkinson,

Defendant stood trial for and was convicted of Attempted Unlawful Sexual

Intercourse in the Second Degree.197 On appeal, the Brady issue involves the

193 Pelullo, 399 F.3d at 218. 194 Id. (holding prosecution did not have control over agency officials in the Department of Labor (“DOL”) nor was the entire DOL considered part of the “prosecution team” despite some DOL agents partaking in the investigation.) 195 Id. (quoting Merlino, 349 F.3d at 154). 196 Pelullo, 399 F.3d at 218 (citing United States v. Antone, 603 F.2d 566, 569-70 (5th Cir. 1979) (holding state investigation information was imputed to federal prosecutors because “the two governments, state and federal, pooled their investigative energies [to prosecute the defendants]”). 197 Atkinson v. State, 778 A.2d 1058, 1060 (Del. 2001).

36 prosecution not turning over notes taken by Deputy Attorney General Daniel Miller

during witness interviews with police.198 These notes suggested that there was no

sexual component mentioned by the Victim and the Court found this to be “favorable

evidence that would be material to impeachment of one or more key witnesses.”199

This finding concluded a “reasonable probability of a different result had the

favorable evidence the State withheld been provided in a timely fashion.” 200 The

Court in Atkinson found the withheld evidence to be “both favorable to Atkinson and

material in that it may have affected the outcome of the trial,” which warranted a

new trial. 201

In the instant case, the alleged Brady violation by Miller covers the custodial

status of Demarius Bradley on the date of the incident. The evidence surrounding

the custodial status of a person not directly involved does not go towards the grounds

that would fall within the Brady rule and warrant reversal, as Miller states that

Atkinson requires.

Trial Counsel, in its sworn affidavit, swears to the following:

If defense elected to go in that direction, that is, Wheeler was lying about who he witnessed shooting Farmer , because he mis identified [sic] who was in trap house or in the Jeep, the fact that Bradley ( if in fact it was him ) was in custody would have enabled defense to argue that Wheeler was wrong. This however would only apply

198 Id. at 1061. 199 Id. at 1064. 200 Id. 201 Id.

37 if in fact Wheeler was correct in who he saw in the trap house or in the area. It also would not aide in the attack on Mude and Pruit, as well as Wheeler on the issue of witness intimidation.202

Trial Counsel also notes in its affidavit that this would only be applicable if who

Wheeler was with prior to the shooting was relevant. 203 Wheeler also “in any of his

statements never claimed that he was with anyone at the time he witnessed the

shooting.”204 Even if there were a violation of Brady that raised a question as to

Wheeler incorrectly identifying who he was with earlier on the date of the incident,

that would not negate the overwhelming evidence already existing against Miller.

In the alternative, Miller argues the State still had a duty to search JIC for relevant

court background.205 This simple search, Miller contends, would show the Family

Court docket which reflects Bradley’s custody on the day of the incident As

previously stated, “Brady does not impose a duty on the prosecution to “ferret out

any potential defense-favorable information from materials that are so disclosed.”206

Therefore, the Court does not find that the State suppressed evidence. Because the

Court does not find that the State committed a Brady violation, the analysis does not

need to reach whether the defendant was prejudiced. Nonetheless, the Court holds

Miller would not be prejudiced without Bradley’s custodial status. As discussed

202 D.I. 202 p.10-11. 203 Id. p.8. 204 Id. 205 D.I. 184 p.48. 206 U.S. v. Pelullo, 399 F.3d 197, 212 (3d. Cir. 2005).

38 above, even though the Division of Youth Rehabilitative Services falls under the

same umbrella as the Attorney General’s Office, that mere overlap is not sufficient

to find that the Division is a part of the prosecution’s team.

Given these facts, the Court cannot find a Brady violation in the instant case. As

such, there is no prejudice placed on Miller. Despite the fact that there is no Brady

violation in this case, the Brady claim regardless is procedurally barred by Rule

61.207

VI. ERLINGER

In his supplemental Motion Miller raises a claim related to his conviction for

possession of a firearm by a person prohibited. The State filed a Habitual Offender

Motion as to this charge which the Court granted. On this charge the Court pursuant

to 11 Del. C. §4214A sentenced Miller to 25 years at Level V suspended after 10

years for five years at Level III.

This Court has denied Miller’s claims for postconviction relief. Therefore

Miller’s conviction for First Degree Murder remains in place. The First Degree

Murder conviction requires a life sentence without the benefit of probation or parole.

207 Super. Ct. Crim. R. 61(i)(3).

39 Given this sentence Miller’s Erlinger claim is not ripe. 208 Therefore this claim is

dismissed as it does not create an actual controversy.

VII. CUMULATIVE ERROR

Miller’s Claim V argues the cumulative impact of the above errors warrant

reversal of his conviction and a new trial. 209 “Where there are multiple material

errors in a trial, the Court must weigh their cumulative effect and determine if,

combined, they are ‘prejudicial to substantial rights [so] as to jeopardize the fairness

and integrity of the trial process.’”210 The Court must ask “whether [it] can be

confident that the jury’s verdict would have been the same.” 211

In the above analyses, the Court found none of the claims prejudiced Miller. This

is in stark contrast to the holdings of the cases which Miller relies on.212 Therefore,

there is no cumulative impact of error which would undermine the Court’s

confidence in the jury’s verdict.

IV. CONCLUSION

208 State v. Kellan, 317 A.2d 285, 300 (Del Super. 2024); State v. Hearne, 2023 WL 2980324 (Del. Super. 2023) Govan v. State 832 A.2d 1251 (Del. 2003); State v. Twyman, 2010 WL 4261921 (Del. Super. 2010). 209 D.I. 184 p.64. 210 Starling, 130 A.3d at 336 (quoting Haskins v. State, 102 A.23d 724, 735 (Del. 2014)). 211 Starling, 130 A.3d at 336 (quoting Kyles v. Whitley, 514 U.S. 419, 453 (1995)). 212 See D.I. 184 p. 64-66 (citing Starling, 130 A.3d at 336-37 (finding cumulative impact based on multiple claims of ineffectiveness); Breakiron v. Horn, 642 A.F.3d 126, 132 n.5 (3d. Cir. 2011) (finding cumulative error because three claims “individually warranted relief” and their cumulative impact did as well)).

40 Defendant’s Brady violation claim, Cumulative Error claim, and multiple

Ineffective Assistance of Counsel claims fall short and fail for the above stated

reasons. The claim based on Erlinger is not ripe.

For the reasons stated herein, Defendant’s Motion for post-conviction relief

is DENIED.

IT IS SO ORDERED. /s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge

cc: Original to the Prothonotary Andrew Fletcher, Deputy Attorney General Christopher S. Koyste, Esq.