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State v. Reyes

Supreme Court of Delaware

January 19, 2017

STATE OF DELAWARE, Plaintiff Below-Appellant,
LUIS E. REYES, Defendant Below-Appellee.

          Submitted: November 16, 2016

         Court Below: Superior Court of the State of Delaware ID No. 9904019329

         Upon appeal from the Superior Court. REVERSED AND REMANDED FOR SENTENCING.

          Elizabeth R. McFarlan, Esquire (Argued), Maria T. Knoll, Esquire, Delaware Department of Justice, Wilmington, Delaware for Appellant.

          Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware for Appellee.

          Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en Banc.

          VAUGHN, Justice.


         In 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.[1]

         On 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.[2] 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[3] 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)."[4]

         The 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 attorneys.

         In 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.

         The 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.


         The 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 Louie."
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 left there.
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 recognize.
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 the receipt.
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 testimony.[5]

         After 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.


         We review a Superior Court judge's decision to grant postconviction relief for an abuse of discretion.[6] To the extent the parties raise questions of law or constitutional violations, they will be reviewed de novo.[7]


         Reyes' Election Not to Testify

         The 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 following colloquy:

Court: Mr. Reyes.
Reyes: Yes.
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?
Reyes: Yes.
Court: Okay. Now, Mr. Reyes, obviously you chose not to take the witness stand in connection with the presentation of your case; correct?
Reyes: Correct.
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 stand?
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 voluntary one?
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 stand?
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.[8]

         Despite 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.[9]

         At the 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.[10]

         The 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.[11] 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.

         The 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"[12] 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.

         "Generally, 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."[13] 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.[14] It was error for the Superior Court to find that Reyes election not to testify was not knowing, intelligent and voluntary.[15]

         Reyes 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 during cross-examination.

         To prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-prong standard of Strickland v. Washington.[16] This test requires that he prove that trial counsel's performance was objectively unreasonable and that the defendant was prejudiced as a result.[17] Under the first prong, judicial scrutiny is "highly differential."[18] Courts must ignore the "distorting effects of hindsight" and proceed with a "strong presumption" that counsel's conduct was reasonable.[19] 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."[20]

         Under 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."[21] In other words, "not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding."[22] "Some errors will have a pervasive effect . . ., and some will have had an isolated, trivial effect."[23] 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."[24] "A reasonable probability is a probability sufficient to undermine confidence in the outcome."[25] 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 the errors.'"[26]

         We find 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."[27] "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 testifies.[28]

         Even if 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 conviction.

         Reyes' Prior Testimony

         The 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?
A. Yes.
Q. When was ...

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