Submitted: November 16, 2016
Below: Superior Court of the State of Delaware ID No.
appeal from the Superior Court. REVERSED AND REMANDED FOR
Elizabeth R. McFarlan, Esquire (Argued), Maria T. Knoll,
Esquire, Delaware Department of Justice, Wilmington, Delaware
Patrick J. Collins, Esquire, Collins & Associates,
Wilmington, Delaware for Appellee.
STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ,
Justices, constituting the Court en Banc.
2001, Luis E. Reyes was convicted of two counts of Murder in
the First Degree, two counts of Possession of a Firearm
During the Commission of a Felony, and two counts of
Conspiracy in the First Degree in what came to be known as
the Rockford Park Murders. After a penalty hearing, he was
sentenced to death. This Court affirmed Reyes'
convictions and sentences on direct appeal.
March 25, 2004, Reyes filed a timely motion for
postconviction relief. On January 27, 2016, after a lengthy
procedural process, during which the trial judge retired and
the postconviction proceeding was assigned to his successor,
the Superior Court issued an opinion granting Reyes'
motion and vacating his convictions and
sentences. The Superior Court found that several
errors occurred during the guilt phase of Reyes' trial.
It found that Reyes' election not to testify was not a
knowing and intelligent decision; that testimony which Reyes
had given in a previous case, admitted in the State's
case in chief in this case, included inadmissible character
evidence and undermined Reyes' decision not to testify;
that the trial court's deferral of co-defendant Luis
Cabrera's sentencing until after Reyes' trial
deprived Reyes of important exculpatory testimony from
Cabrera; that the testimony of a State's witness,
Roderick Sterling, was unreliable, inadmissible hearsay; and
that the State violated Brady v.
Maryland by failing to disclose Sterling
impeachment evidence. The Superior Court further broadly
found that none of the procedural bars of Superior Court
Criminal Rule 61(i)(1-4) applied to any of these findings
because "there was a miscarriage of justice pursuant to
Rule 61(i)(5), [and] . . . reconsideration of otherwise
procedurally barred claims is warranted in the interest of
justice pursuant to Rule 61(i)(4)."
Superior Court also found that Reyes' trial attorneys
were ineffective for failing to establish that Sterling's
testimony was based on hearsay; by failing to call Ivan
Galindez as a witness; by failing to request a missing
evidence instruction regarding a document called the Sterling
Letter; and by failing to offer into evidence statements
Cabrera made in an interview with one of Reyes' trial
addition, Reyes contends that his trial attorneys were
ineffective in ways not ruled upon by the Superior Court: in
not moving in limine to obtain a ruling that a prior
murder conviction on Reyes' record was not admissible for
impeachment under Delaware Rule of Evidence ("DRE")
609(a)(1) if Reyes testified; in not presenting a thorough
and accurate objection to a portion of the above-mentioned
Reyes' prior testimony in which Reyes admitted to lying
to his girlfriend; in failing to request Brady
material regarding Sterling; and in appellate counsel's
failing to raise the Sterling hearsay issue on direct appeal.
State claims that the Superior Court committed error in all
of its rulings. The State also contends that the other
ineffective assistance of counsel claims asserted by Reyes
are without merit. We have carefully reviewed each of the
issues and concluded that the State is correct. For the
reasons which follow, the Superior Court's grant of
Reyes' postconviction motion is reversed.
FACTS AND PROCEDURAL HISTORY
facts as they appear in this Court's 2003 opinion on
direct appeal, with footnotes omitted, are as follows:
Reyes, and his co-defendant, Luis Cabrera, were charged with
the murders of Vaughn Rowe and Brandon Saunders. The murders
occurred on January 20, 1996. The defendants were not
arrested until 1999. The cases were severed and the
defendants were tried separately. Cabrera went to trial first
and was convicted, as charged, and sentenced to death.
Early in the morning of January 21, 1996, the bodies of two
teenagers were discovered by a passerby in a wooded section
of Rockford Park in Wilmington. The bodies of Vaughn Rowe and
Brandon Saunders were in a shallow grave that was covered by
a maroon bed sheet. Rowe and Saunders had, according to
expert testimony, been killed about twelve to eighteen hours
before their bodies were discovered.
Both teens had been shot in the back of the head. Rowe also
had internal injuries to his spleen, liver and left kidney as
well as facial lacerations. The additional injuries suffered
by Rowe were consistent with the repeated use of blunt force.
Some of the injuries were inflicted by a belt buckle.
The police recovered several pieces of evidence at the scene
including bullets, four small bags of marijuana found in the
victim Rowe's clothes, and a watch Rowe was wearing that
had a memory bank of telephone numbers. The memory bank
listed a telephone number that corresponded with the
residence of Luis Cabrera's father.
At the victim Saunders' home, the police also recovered a
business card for "ISS Servicesystem, Inc."
Handwritten on the card was "434-6154 Big Lou."
Both Cabrera and Reyes worked at ISS and some people referred
to Cabrera as "Big Louie" and Reyes as "Little
In March 1996, the police learned that the bullet, which
killed Vaughn Rowe, came from a 38-caliber gun. The bullet
had certain identifiable markings on it. A year later, in
March 1997, police were investigating the unrelated murder of
a man named Fundador Otero, who was killed in January 1995.
As part of that investigation, the police conducted two
searches at Luis Cabrera's father's house. During
that search, they found a 38-caliber pistol and a single
maroon fitted bed sheet. When the 38-caliber pistol was test
fired, the test bullet had markings almost identical to the
bullet found in Vaughn Rowe's head.
On or about January 20, 1998, the police interviewed Roderick
Sterling, an inmate at Gander Hill prison. Sterling advised
the police that he had overheard Reyes having conversations
with Ivan Galindez, who was Sterling's cellmate. At the
time of those conversations, Reyes was also incarcerated at
the Gander Hill prison, serving a twelve-year sentence for
the Otero murder.
Sterling heard Reyes admit to Galindez his involvement in the
Saunders-Rowe double murder, along with a man named Luis
Cabrera. Sterling testified that he had overheard Reyes tell
Galindez that Rowe and Saunders had "shorted"
Cabrera on a marijuana deal. Sterling also stated that Reyes
said he beat someone with a belt in the basement of a house
at "601 something." He also heard Reyes say that a
neighbor came down during the beating because there was so
much noise coming from the basement.
Sterling heard Reyes recount to Galindez how he and Cabrera
decided to take the person they were beating from the
basement to a park. The victim was transported in the trunk
of a black BMW. Reyes and Cabrera then picked up the second
victim so that they could kill both of them at the same time.
Sterling heard Reyes say that once he and Cabrera picked up
the second victim, they went to Canby Park. Arriving there,
they made both of the victims lie on the softball field and
shot them. The bodies were then taken to Rockford Park and
At the time of the murders, Cabrera and Reyes lived together
at 610 W. 20th Street in a three-story house. Cabrera and
Reyes lived on the second floor. The tenant on the first
floor was Donna Ashwell. Clavel Clamamont and Maribel Skjefte
lived on the third floor.
Following Sterling's interview, the police located the
female tenants of Reyes' former apartment building, Donna
Ashwell and Maribel Skjefte. Although they were interviewed
two and a half years after the murders, the women remembered
a fight in the basement. Donna Ashwell remembered that the
fight occurred just a day or two before the two bodies were
found in Rockford Park. The women recalled hearing the voices
of Luis Cabrera and Luis Reyes during the fight. They also
heard the voice of a third person, which they did not
At trial, both Ashwell and Skjefte testified. Ashwell
recalled that on a Saturday night in January 1996, she heard
what she described as a fight in the basement of her
building. Ashwell also heard an argument. One voice, which
sounded like that of Cabrera, asked another person a
question. After a negative response to the question, Ashwell
heard a metal crashing noise. Ashwell then went to the
basement and banged on the door. Reyes came to the door and
Ashwell said to him, "Take the fight elsewhere or
I'll call the police." Reyes asked her not to do
that and told her they would take the fight elsewhere.
Skjefte testified that she went down to the basement shortly
after Ashwell did. She stated that Cabrera answered the door
and told her they were taking care of some business. Skjefte
also heard Reyes' voice. Shortly thereafter, Cabrera came
into the first floor foyer. He apologized to the women and
said they were leaving.
Several items of physical evidence linked Rowe and Saunders
to Cabrera, albeit indirectly. The first item was a watch
that Rowe was wearing at the time of his death. That watch
had a memory bank of phone numbers, one of which was for a
woman. That telephone number was for the Wilmington residence
of Luis Cabrera's father, Luis Cabrera, Sr. The second
item of evidence was an ISS Servicesystem, Inc. business card
found at the Saunders family home. On it was written a
telephone number and the words "Big Lou." Both
Cabrera and Reyes worked at ISS and were known as "Big
Louie" and "Little Louie."
On February 3, 1996, shortly after the murders, Cabrera
returned Saunders' pager to a Page One store in
Wilmington. The pager was identified as Saunders' by a
code number inside it. Page One does not generally give
receipts for returned pagers, however, when Cabrera returned
Saunders' pager, he also bought a new one, generating a
receipt. Cabrera's name and address appear on the back of
Cabrera's estranged wife testified for the State at
Reyes' trial. She stated that they had both worked for a
cleaning service that was located on Silverside Road. The
business card with "Big Lou" on it found in
Saunders' bedroom had a Silverside Road address.
Cabrera's wife also testified that she had owned a set of
bed sheets that were similar to the single maroon sheet that
was found covering the victim's bodies. When she
separated from Cabrera, she left the maroon sheets behind for
Cabrera. When police searched Mr. Cabrera Sr.'s house,
they found a maroon sheet on the floor in a pile of laundry.
Mr. Cabrera Sr. said it was his son's sheet. Both the
sheet found during the search and the one covering the bodies
had nearly identical labels.
Another inmate at the Gander Hill prison, Waymond Wright,
testified Reyes told him that he had gone to school with
Saunders and Rowe. Wright testified that Reyes told him that
after the murder several classmates hugged Reyes. Commenting
on this, Reyes told Wright, "if they only knew."
Wright also testified that when Reyes admitted to the
murders, he said the victims were "short" on a
pound of marijuana. Wright's testimony about Reyes'
account of how the murders were committed was similar to the
events attributed to Reyes by Sterling's
Reyes filed his initial motion for postconviction relief,
amended motions were filed, with the last being filed on
October 13, 2009. An evidentiary hearing was conducted by the
trial judge over a period of approximately nine days between
May 8, 2012 and April 1, 2013. Depositions were taken and
made a part of the record. Shortly after the conclusion of
the evidentiary hearing, the trial judge retired. As
mentioned, the case was then assigned to his successor.
Briefing then occurred, and after briefing was completed, the
successor judge requested supplemental briefing relating to
Reyes' election not to testify, a matter which
theretofore had not been an issue. Supplemental briefing was
completed on November 23, 2015 and the Superior Court then
issued its opinion. This appeal by the State followed.
STANDARD OF REVIEW
review a Superior Court judge's decision to grant
postconviction relief for an abuse of
discretion. To the extent the parties raise questions
of law or constitutional violations, they will be reviewed
Election Not to Testify
first ground for relief addressed by the Superior Court
relates to Reyes' election not to testify in the guilt
phase of his trial. At the conclusion of the defense case in
the guilt phase, the trial judge was informed that Reyes
elected not to testify. The trial judge engaged Reyes in the
Court: Mr. Reyes.
Court: Do you mind standing Mr. Reyes? Mr. Reyes, your
attorneys have rested your case. Do you understand that?
Reyes: Yes, sir.
Court: That means that they have finished presenting any
evidence that they wish to present on your behalf. Have you
fully consulted with them as far as you're concerned
about the evidence which has been presented or not presented?
Reyes: Yes, I have.
Court: You're satisfied with the evidence that has been
presented and/or not presented at this point?
Court: Okay. Now, Mr. Reyes, obviously you chose not to take
the witness stand in connection with the presentation of your
Court: Do you understand, of course, that you had a
constitutional right to take the witness stand or not take
the witness stand?
Reyes: Yes, I do.
Court: And you chose not to take the witness stand?
Reyes: That is correct.
Court: Did you consult with your attorneys about that
decision? Reyes: Yes, I did.
Court: Do you understand that they can only advise you, and
I'm not asking what their advice is, but whatever their
advice was, it is only advice; do you understand that?
Reyes: Yes, sir.
Court: And, by that, I mean, do you understand that the
decision to take the witness stand or not take the witness
stand is yours alone and not your lawyers?
Reyes: Yes, I do.
Court: Was it your decision alone not to take the witness
Reyes: Yes, it was, altogether.
Court: Were there any threats, promises or other matters made
in connection with that decision?
Reyes: No, sir.
Court: Do you believe the decision on your part was a
Reyes: Yes, I do.
Court: Do you believe that you were adequately, from your
perspective, advised about the choices of taking the witness
stand or not taking the witness stand?
Reyes: Yes, I do.
Court: Do you feel you had sufficient time to talk to your
lawyers about the decision to take - to not take the witness
Reyes: Yes, sir.
Court: Do you wish to consult with them any further about
this decision about not taking the witness stand?
Reyes: No, sir.
Court: And, are you satisfied in your mind as you stand there
now, having listened to all this case, including the
presentation of your evidence over the last few days that you
made the correct decision?
Reyes: Yes, I did.
Court: All right.
this colloquy, the Superior Court in its postconviction
opinion ruled that Reyes' decision to waive his right to
testify was not a knowing and intelligent waiver of that
right. The ruling was based upon a comment which Reyes made
during allocution near the end of the penalty phase of his
trial. During allocution, Reyes stated:
I didn't get on the stand during trial because I
didn't want what I was presently incarcerated for to come
up. I felt that by that coming out, you, the jury, would
automatically think I was guilty. Therefore, I chose not to
take the stand.
time of his trial, Reyes was serving a sentence for Murder in
the Second Degree and other offenses arising from the 1995
murder of Fundador Otero, a murder in which Cabrera was also
involved. The State presented the Otero murder as an
aggravating factor in the penalty phase. In its
postconviction opinion, the Superior Court interpreted
Reyes' comment during allocution as indicating that he
had wanted to testify during the guilt phase to profess his
innocence, but decided not to do so in order to avoid having
the jury hear of the Otero murder in either the guilt or the
penalty phase. Since the commission of a prior murder is
something that would be admissible as an aggravating factor
as a matter of course in a penalty phase, the Superior Court
reasoned that Reyes' decision not to testify at the guilt
phase was based on a misunderstanding and that the decision
was therefore not knowing and intelligent. Specifically, the
Superior Court explained its reasoning as follows:
While it appears that Reyes understood the right that he
waived in waiving his right to testify on his own behalf,
Reyes did not understand the consequences of choosing to
forego that right. Reyes' explanation to the jury during
the sentencing phase of the Reyes Rockford Park Trial that he
wanted to testify to profess his innocence during the guilt
phase, but did not do so to avoid presentation to the jury
about Reyes role in the Otero murder shows that Reyes
expectation was that such evidence would not be admitted . .
. . In making the decision not to testify, Reyes should have
had the opportunity to consider that evidence regarding his
involvement in the Otero murder would be admitted during the
penalty phase as an aggravating factor.
State contends that consideration of this issue by the
Superior Court in this postconviction proceeding is barred
under then existing Superior Court Criminal Rule 61(i)(4) as
formerly adjudicated by the trial judge through his colloquy
with Reyes at trial. We agree. It is clear from the
transcript of the colloquy that the trial court determined
that Reyes had fully consulted with his attorneys concerning
the evidence which had been presented or not presented on his
behalf; that Reyes was satisfied with the evidence that had
been presented; that Reyes understood that he had a
constitutional right to take the witness stand or not take
the witness stand; that Reyes had consulted with his
attorneys about his decision not to testify; that Reyes
understood that the decision whether to testify or not was
his decision and his decision alone; that his attorneys'
role was limited to giving him their advice; that the
decision whether to testify was, in fact, being made by Reyes
himself; that no one had made any threats or promises to
Reyes on the matter; that the decision was a voluntary one on
Reyes' part; that Reyes believed the advice he had
received from his counsel on the matter was adequate; that
Reyes had sufficient time to talk to his lawyers about the
decision; that Reyes felt no need to talk with his counsel
further about the decision; and that Reyes was satisfied that
he was making the correct decision.
natural conclusion to be drawn from this careful and thorough
colloquy is that the trial court made a determination, an
adjudication, that Reyes' election not to testify was
knowing, intelligent and voluntary. Moreover, it is not at
all clear in the quoted comment from his allocution that
Reyes would have taken the stand in the guilt phase "to
profess his innocence" if he had known that the Otero
murder would be admitted into evidence at the penalty phase.
It appears that he simply gave the jury his reason why he did
not testify in the guilt phase, that is, he did not wish to
risk that his testifying might make the Otero murder, which,
like the one in this case, involved both Cabrera and him,
admissible for impeachment or some other purpose at the guilt
phase where the jury would determine his guilt or innocence.
Reyes never claimed to be under any misapprehension
concerning his decision not to testify at any part of his
trial through sentencing, his direct appeal, or even in this
postconviction proceeding until the Superior Court raised the
issue sua sponte near the conclusion of the
proceeding in that court.
the waiver of a constitutional right will be intelligent and
voluntary if the defendant is aware of the right in question
and the likely consequences of deciding to forego that
right." The admission of the Otero murder
evidence at the penalty phase was not a consequence of
Reyes' decision not to testify in the guilt phase. The
careful colloquy which the trial judge conducted with Reyes
established that his election not to testify was a knowing,
intelligent and voluntary decision. Since Reyes' election
not to testify was knowing, intelligent and voluntary, the
"interest of justice" exception in Rule 61(i)(4) is
not reached. It was error for the Superior Court to
find that Reyes election not to testify was not knowing,
intelligent and voluntary.
contends that his trial attorneys were ineffective for not
moving in limine to obtain a ruling that Reyes'
Otero conviction was not admissible for impeachment purposes
under DRE 609(a)(1) so that he would have had the benefit of
that ruling in making his decision whether or not to testify.
He contends that such a motion would likely have been
granted, and he could then testify with the assurance that
the Otero conviction would not be admitted for impeachment
prevail on a claim of ineffective assistance of counsel, the
defendant must satisfy the two-prong standard of
Strickland v. Washington. This test requires that
he prove that trial counsel's performance was objectively
unreasonable and that the defendant was prejudiced as a
result. Under the first prong, judicial scrutiny
is "highly differential." Courts must ignore the
"distorting effects of hindsight" and proceed with
a "strong presumption" that counsel's conduct
was reasonable. The Strickland court explained
that "a court deciding an actual ineffectiveness claim
must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as of the
time of counsel's conduct."
the second prong, "[i]t is not enough for the defendant
to show that the errors had some conceivable effect on the
outcome of the proceeding." In other words, "not
every error that conceivably could have influenced the
outcome undermines the reliability of the result of the
proceeding." "Some errors will have a pervasive
effect . . ., and some will have had an isolated, trivial
effect." The movant must show "that there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." "A reasonable probability
is a probability sufficient to undermine confidence in the
outcome." The "court must consider the
'totality of the evidence, ' and 'must ask if the
[movant] has met the burden of showing that the decision
reached would reasonably likely have been different absent
that Reyes cannot establish that there is a reasonable
probability that the result of his trial would have been
different if a motion in limine regarding his prior
conviction had been filed. The manner in which the trial
court would have addressed such a motion involves
speculation. A trial court has no obligation to rule upon
such a motion before the defendant testifies. The trial court
may have deferred the motion until the conclusion of
Reyes' direct examination, if he did elect to testify. A
trial court generally has the option "to defer ruling on
evidentiary issues until the evidence is actually offered for
admission." "This is particularly true under
Rule 609(a)(1), which directs the court to weigh the
probative value of a prior conviction against the prejudicial
effect to the defendant. To perform this balancing, the court
must know the precise nature of the defendant's
testimony, which is unknowable" until he actually
the trial court had granted a motion in limine prior
to Reyes' testimony, the ruling would have been subject
to change as the evidence unfolded. If Reyes had testified,
he would have been subject to vigorous cross-examination
concerning his relationship with Cabrera. Whether he might
have given an answer that rendered the Otero murder
admissible for impeachment or another relevant purpose is
speculation. Under these circumstances Reyes has failed to
establish prejudice from his trial attorneys' failure to
file a motion in limine regarding his Otero
next ground for relief addressed by the Superior Court
relates to testimony which Reyes gave in the State's case
in chief in Cabrera's earlier trial for the Otero murder.
This prior testimony was presented during the State's
case in chief in the guilt phase of the trial. The specific
testimony at issue is:
Q. Okay. And you don't recall telling your girlfriend
that or do you recall telling your girlfriend that you were
with Luis and somebody came over to the house and you went
down the basement and beat them up?
A. No. I don't recall telling her that. Not that moment.
I told her that another time.
Q. Another time?
Q. When was ...