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Holland v. State

Supreme Court of Delaware

March 22, 2017

DJAVON P. HOLLAND, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: January 11, 2017

         Court Below: Superior Court of the State of Delaware Cr. ID No. 1404005828A

         Upon appeal from the Superior Court. REVERSED IN PART.

          Benjamin S. Gifford IV, Esquire (Argued), The Law Office of Benjamin S. Gifford IV, Wilmington, Delaware, for Appellant.

          Karen V. Sullivan, Esquire (Argued), Delaware Department of Justice, Wilmington, Delaware, for Appellee.

          Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.

          STRINE, CHIEF JUSTICE:

         This appeal addresses the legal issues raised by the second of two criminal trials over a single incident where Djavon Holland-the defendant-allegedly burst into an apartment, brandished a gun, and demanded money. A brawl unfolded in which Holland and the apartment's occupants-Vanessa Grier, Nemesis Moore, and Semaj Deshields-were all injured. Holland was indicted before the first trial for two counts of Assault First Degree along with twelve other related charges. After trial, Holland was acquitted on both of the Assault First Degree counts, but the jury was unable to reach a conclusion on the other charges.

         The various issues in this appeal stem from the State's decision to reindict Holland. The second indictment included both the charges on which the first jury hung, and, for the first time, three counts of Attempted Robbery First Degree. After the second trial, the jury convicted Holland of two of the three counts of Attempted Robbery and the majority of the other charges from the second indictment. On appeal, Holland makes a series of arguments assailing the new charges in the second indictment, and attacks the second trial as a whole on Sixth Amendment grounds.

         Holland challenges the State's ability to subject him to the charges in the second indictment that were not in the first indictment on three grounds. First, he argues that the Superior Court incorrectly interpreted 11 Del. C. § 208. He contends the statute in fact bars his indictment for Attempted Robbery. Second, he argues that the State was estopped from proving all the elements of Attempted Robbery of Moore in the second trial. Finally, and most convincingly, he argues that the new charges constituted vindictive prosecution. We reject his first two arguments but find favor with the third.

         As to Holland's argument that 11 Del. C. §208 barred the State from indicting him on charges not in the first indictment, the Superior Court interpreted § 208(1)(a), which bars new prosecutions for offenses a defendant could have been convicted of in an earlier prosecution that resulted in acquittal, to bar the second indictment for offenses that were lesser included offenses of the counts previously indicted and therefore that the defendant could have been convicted of at his first trial. The Superior Court then applied § 208(1)(b)(1) to allow the new charges because Attempted Robbery is not a lesser included charge of Assault, and Attempted Robbery met § 208(1)(b)(1)'s requirements that the new charge require proof of facts not required by Assault and was intended to prevent a substantially different sort of crime than Assault. The Superior Court's interpretation of the statute makes more sense than Holland's interpretation. Holland's broader interpretation of § 208(1)(a) would, in essence, bar any new indictment on charges that conceivably could have been brought in the first indictment. That interpretation undercuts the choices the General Assembly made in enacting § 208 and deprives § 208(1)(b)(1) of any real use.

         We decline to consider Holland's estoppel argument because he did not properly present it before the Superior Court and the Superior Court's failure to separately assess the case for these estoppel claims was not plainly erroneous. If we did take up Holland's argument that the State cannot prove all the elements of Attempted Robbery because it is estopped from arguing that Holland caused Moore injury or that Holland possessed a firearm, because Holland was acquitted by the first jury of Assault in the First Degree and the related Possession of a Firearm During the Commission of a Felony, though, we would do so within the framework of 11 Del. C. § 208. Using the statute, we would find that Holland's acquittals at the first trial did not bar his indictment for Attempted Robbery because they fit within § 208(1)(b)(1)'s exception and do not run afoul of § 208(2).

         By contrast, we are persuaded by Holland's argument that the new indictment for Attempted Robbery constitutes vindictive prosecution. The U.S. Supreme Court has held that recharging a defendant with different charges after a first, inconclusive trial poses a "realistic likelihood" of vindictiveness and due process "requires that a defendant be freed of apprehension" of "retaliatory motivation" on the part of prosecutors.[1] Thus, when the State brings different, similarly weighty charges at a second trial, a defendant is entitled to a presumption of vindictive prosecution and does not have to prove that a prosecutor was actually improperly motivated in bringing new charges. The State may overcome that presumption by showing legitimate reasons why it was unable to present the new charges at the first trial. Before and during the first trial, the State had abundant evidence that Holland's likely motivation for entering the apartment was that he believed Moore was a drug dealer who he could rob of cash and drugs. Even if Moore testified he was not currently selling marijuana at the time Holland entered the apartment, as the State expected he would at the first trial, the evidence available to the State such as marijuana and baggies found in Moore's bedroom after the melee, Moore's "weed man" nickname, Holland's text messages suggesting he was targeting Moore's apartment for drugs and drug money, and, indeed, Moore's own statement after the incident that it was possible his apartment was targeted because of his reputation, all still would have easily supported an Attempted Robbery charge. Indeed, although the State contests that the issue was fairly raised, it conceded at oral argument that the presumption of vindictive prosecution would apply on these facts.

         The State argues that the only reason it recharged Holland was that Moore's testimony that he was a drug dealer at the time of the incident was the critical piece establishing the necessary motive for Holland to rob the apartment. But, nothing in the State's original theory at the first trial suggested Holland was just wandering Moore's neighborhood randomly and just happened to pick Moore's apartment to enter because the number on the door inspired violent thoughts. Rather, the evidence in the State's possession all along supported the inference that Holland knew Moore lived there, that Holland needed cash, and targeted Moore's apartment because he believed Moore was a drug dealer who would have cash and drugs on hand that could be stolen. Therefore, the State fails to show a material change in the facts available to it to overcome the presumption of vindictive prosecution. Because we find that the presumption of vindictive prosecution applies, we reverse Holland's convictions for Attempted Robbery and Home Invasion and the associated counts of Possession of a Firearm During the Commission of a Felony, leaving only the convictions for charges from the first trial standing.

         Seeking total victory, Holland seeks to escape all of the convictions he suffered after his second trial by contending that his waiver of his Sixth Amendment right to counsel was not knowing, intelligent, and voluntary. We disagree. His argument requires accepting both that the Superior Court always must mechanistically go through a series of factors, which this Court has regularly held to be examples rather than a mandatory checklist, and also that the Superior Court committed reversible error when it, in part, relied on a colloquy from the first trial-before the same judge, less than a year earlier-when it made its finding in the second trial that Holland's waiver was knowing, intelligent, and voluntary. When, as here, the Superior Court made its decision to allow Holland to proceed pro se only after examining Holland on the majority of factors this Court has found relevant and a number of other factors tailored to Holland's particular motivation for representing himself, this Court declines to fault the Superior Court's careful decision.

         I.[2]

         On April 8, 2014, Djavon Holland burst into Vanessa Grier's apartment. Grier was at home with her two adult sons, Nemesis Moore and Semaj Deshields. Moore had been living with his mother in the apartment for six to nine years before the incident.[3] Holland pointed a gun at Grier and, according to Grier, said "[g]ive me the money."[4] Moore heard Holland enter and came into the room Grier, Deshields, and Holland were in, and confronted Holland. This turned into a brawl in which Holland shot his gun several times, injuring Deshields and Moore before ultimately being subdued by Grier, Moore, and Deshields. "Responding officers observed that all of the parties were injured."[5] Although Holland was arguably an armed home invader who sprung upon the occupants of Moore's apartment, the defenders would seem to have likely been deemed the victors of the brawl if it were an MMA title fight. Holland was found by police pinned down under a dinner table, bleeding and moaning[6] and, according to Holland, he suffered the greatest injuries and longest hospital stay of the combatants.[7] This may help explain the comparatively more merciful view the first jury later took of Holland's actions.

         The police found 103 grams of marijuana and baggies used for distributing drugs in the apartment. They learned that Moore was known to sell marijuana and was nicknamed the "weed man."[8] The police also recovered text messages from Holland's cell phone indicating he was trying to get money-at least $1, 500[9]-as well as text messages from a friend of Holland's suggesting "[t]omorrow might be better. That way, you could catch . . . the order coming . . . out."[10] As part of their investigation, the police interviewed Moore, who told them he sold marijuana in the past but no longer.[11] Moore also maintained in his statement that it was possible Holland entered the apartment because he knew Moore had been a drug dealer.[12]

         On July 21, 2014, Holland was indicted for:

• Home Invasion (predicate crime: Assault First Degree and/or Assault Second Degree)
• Assault First Degree as to Nemesis Moore
• Assault First Degree as to Semaj Deshields
• Assault Second Degree as to Vanessa Grier
• Aggravated Menacing as to Vanessa Grier
• Wearing a Disguise During the Commission of a Felony
• Possession of a Firearm by a Person Prohibited
• Possession of Ammunition by a Person Prohibited
• Misdemeanor Criminal Mischief
• Five counts of Possession of a Firearm During the Commission of a Felony

         On the morning jury selection was supposed to begin, Holland requested new counsel because he was dissatisfied with his public defender. The Superior Court determined that a continuance for new counsel was not warranted because the request was made on the day of trial and Holland's lawyer was otherwise ready to proceed.[13] Instead, the Superior Court asked Holland if he wanted to waive his right to counsel rather than continue with his public defender. The Superior Court outlined the framework for ensuring that defendants make the choice to waive their right to counsel and represent themselves knowingly, intelligently, and voluntarily, invoking the "searching inquiry" framework from the U.S. Third Circuit Court of Appeals decision in United States v. Welty.[14] That framework has been adopted by this Court in cases such as Briscoe v. State.[15] Using that framework, the Superior Court asked Holland a series of questions about his understanding of the case, experience with the criminal justice system, and education, among other things.[16]Based on that colloquy, the Superior Court confirmed that Holland could proceed pro se and appointed Holland's lawyer standby counsel.

         At trial, contrary to his earlier statement to the police that he no longer sold marijuana, Moore testified on cross examination that at the time of the incident he made money by selling marijuana.[17] The State later asserted that "[u]p until the eve of trial, the State was not aware that [Moore] was a drug dealer at the time" of the incident.[18] After trial, the jury acquitted Holland of Assault First Degree as to Moore and Deshields and the related Possession of a Firearm During the Commission of a Felony charges. The jury could not reach a verdict on the remaining charges.

         After the first trial, the State presented the incident to a new grand jury and that grand jury indicted Holland for:

• Home Invasion (predicate crime: Attempted Robbery First Degree)
• Attempted Robbery First Degree as to Nemesis Moore
• Attempted Robbery First Degree as to Semaj Deshields
• Attempted Robbery First Degree as to Vanessa Grier
• Assault Second Degree as to Vanessa Grier
• Wearing a Disguise During the Commission of a Felony
• Possession of a Firearm by a Person Prohibited
• Possession of Ammunition by a Person Prohibited
• Criminal Mischief
• Five counts of Possession of a Firearm During the Commission of a Felony

         Before the second trial began, Holland wrote two letters, one to his attorney and one to the Superior Court, arguing that the new prosecution was "vindictive."[19] Separately, Holland moved to dismiss the charges for Home Invasion, Attempted Robbery, and related Possession of a Firearm During the Commission of a Felony charges on the basis of the prohibition on double jeopardy and 11 Del. C. § 208. The Superior Court denied the motion.

         On the morning of jury selection for the second trial, Holland indicated that he wanted to represent himself. Holland and his attorney-Anthony Figliola- indicated this was specifically related to Figliola's advice that Holland testify. Holland believed that conducting his own defense was a preferable substitute to taking the stand, based on his experience conducting his own defense in the first trial. The Superior Court then examined Holland about his choice.[20]

         The Superior Court concluded that Holland's waiver of his right to counsel had been knowing, intelligent, and voluntary and proceeded to jury selection and pretrial motions. Holland, through Figliola, had made a motion in limine to exclude evidence of injury to Deshields and Moore, [21] as well as a motion to reargue the Superior Court's decision that the State could argue, without implicating the Double Jeopardy Clause, that Holland possessed a firearm even though he had been found not guilty of the Assault charges.[22] The Superior Court also invited Holland to "make any argument you wish over and beyond what was set forth in Mr. Figliola's motion."[23] Holland contested his second indictment on grounds the prosecutors "lied."[24] The Superior Court denied Holland's motion for reargument as well as the motion in limine.[25]

         Holland proceeded to represent himself at trial. The State argued that Holland wanted to rob the apartment because he "knew Nemesis Moore was a drug dealer and [Holland] knew [Moore] sold marijuana for a living, and [Holland] knew that around the neighborhood [Moore's] name was =the weed man.'"[26] After trial, the jury found Holland guilty of all charges except for Attempted Robbery of Deshields and the related Possession of a Firearm During the Commission of a Felony, and Wearing a Disguise During the Commission of a Felony.

         II.

         Holland argues that his second indictment on charges of Attempted Robbery was flawed in three ways. He argues both that the Superior Court incorrectly interpreted 11 Del. C. § 208 because the statute in fact bars Holland's indictment for Attempted Robbery, and also that the State was estopped from arguing in the second trial that Holland's behavior met all the elements of Attempted Robbery of Moore. Most compellingly, he argues that the second indictment for Attempted Robbery constituted vindictive prosecution.

         A.

         We reject Holland's argument that the Superior Court erred in its statutory interpretation when it concluded that 11 Del. C. § 208 did not bar the charges of Attempted Robbery of Moore and Deshields.[27] The relevant part of the statute states:

Although a prosecution is for a violation of a different statutory provision or is based on different facts, it is barred by a former prosecution in a court having jurisdiction over the subject matter of the second prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal which has not subsequently been set aside or in a conviction as defined in § 207 of this title and the subsequent prosecution is for:
a. Any offense of which the defendant could have been convicted on the first prosecution; or
b. The same conduct, unless:
1. The offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or
2. The second offense was not consummated when the former trial began.[28]

         This language is almost identical to the Model Penal Code provision.[29] Holland argued before the Superior Court that § 208(1)(a) barred the State from indicting him for Attempted Robbery of Moore and Deshields, along with the accompanying Possession of a Firearm During the Commission of a Felony charges because he had been acquitted of the Assault charges against them.[30] Before the Superior Court and this Court, Holland maintains that § 208(1)(a)'s phrase "any offense of which the defendant could have been convicted on the first prosecution" bars any offense that could have been indicted in the first prosecution, but was not. In contrast, the State argued that § 208(1)(b) allows the new charges because they are different offenses. The Superior Court agreed with the State, observing that "[b]ecause the State did not originally indict on those counts, Defendant could not have been convicted of those offenses under the original indictment, and thus he cannot now claim the protection of subsection (1)(a)."[31] Now, Holland urges this Court to find that the Superior Court incorrectly interpreted § 208.

         But, the Superior Court's interpretation of the statute is the one that better gives meaning to each part of the statute in the fashion that the General Assembly adopted it. One of § 208 's handful of deviations from the Model Penal Code text is relevant here. The Model Penal Code's § 1.09, which § 208 generally tracks, includes another provision, which says a prosecution is barred if it is for "any offense for which the defendant should have been tried on the first prosecution.'"[32]Delaware's statute, though, omits that provision. Thus, Holland's interpretation would require this Court to read into the statute words explicitly excluded by the General Assembly.

         Additionally, the Delaware Criminal Code with Commentary does not offer Holland's interpretation the support he claims it does when it offers lesser included offenses as an example of what § 208(1)(a) bars.[33] Holland argues that, because lesser included offenses are offered as an example, they are not the exclusive set of offenses barred by § 208(1)(a) and, therefore, his circumstance is also barred. Even though he is right to observe lesser included offenses are an example rather than a complete set, it does not follow that his situation must therefore be included. Section 208(1)(a)'s language could easily cover other situations than Holland's, for example, a defendant being recharged on charges for which the defendant had actually been indicted in the first case.[34] This illustrates that other examples exist, which don't suffer from the problems associated with Holland's expansive interpretation.[35]

         Furthermore, when Holland argues that § 208(1)(a) covers anything that could have been conceivably included in an initial indictment, he doesn't account for what happens to (1)(b). The relevant part of § 208(1)(b) states that a new prosecution is not barred if "[t]he offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil."[36] If (1)(a) is actually as broad as Holland argues, it is hard to see how there could be any charge that would fit under (1)(b)(1) because (1)(b)(1) plainly allows new charges brought on the same conduct when the charges meet certain criteria.

         Finally, Holland argues that the Superior Court's reading makes parts of § 208 incompatible with § 207, which bars prosecutions for "a violation of the same statutory provisions and. . . based upon the same facts as a former prosecution" under certain circumstances.[37] Although the two sections are closely related, they are not redundant under the Superior Court's interpretation. Unlike § 207, which deals with a prosecution on the same facts and same statutory provision, § 208(1)(a) addresses a situation where a defendant is being prosecuted on different facts, but for an offense that was part of the events for which the defendant was indicted for in the first prosecution. Thus, even under the Superior Court's reading, the two sections offer subtly different protections for defendants. For these reasons, we find the Superior Court properly found that § 208 did not bar Holland's indictment for Attempted Robbery.

         B.

         We also reject Holland's argument that the State is estopped from proving all the elements of Attempted Robbery of Moore because Holland was acquitted by the first jury of Assault in the First Degree and the related Possession of a Firearm During the Commission of a Felony.[38] Holland did not raise this argument explicitly before the Superior Court and so this Court reviews the Superior Court's failure to separately assess the case for these estoppel claims for plain error.[39]

         If this Court considered Holland's estoppel argument, it would not embrace it, much less find a plain error on the part of the Superior Court in not proactively considering and accepting the theory. Although Holland frames his argument in terms of general principles of estoppel, [40] this Court has recognized that, for criminal prosecutions, the "General Assembly has codified the collateral estoppel doctrine in Title 11, Section 208 of the Delaware Code, "[41] and so this Court considers the estoppel claim within that framework. This is supported by the Model Penal Code Commentaries, which observe that the section of the Model Penal Code which Delaware codified as § 208(1)(b) "defines the scope of res judicata, "[42] the doctrine of which collateral estoppel is considered a part, [43] as well as the Delaware Criminal Code With Commentary, which describes § 208(2) as "giving collateral estoppel effect to a former prosecution."[44]

         Here, 11 Del. C. § 208(1)(b)(1) allows the indictment for Attempted Robbery. That section allows second prosecutions for the same conduct when "[t]he offense for which the defendant is subsequently prosecuted requires proof of a fact not required by the former offense and the law defining each of the offenses is intended to prevent a substantially different harm or evil."[45] Attempted Robbery in the First Degree requires a jury to find beyond a reasonable doubt that:

(1) The defendant's conduct must have occurred in the course of committing theft, or in an attempt to commit theft; and
(2) The defendant must have used or threatened the immediate use of force on another person . . .; and
(3)(a) The defendant must have acted with the intent to prevent or overcome the resistance to the taking of the property or to the retention thereof immediately after the taking; or
(3)(b) The defendant must have acted with the intent to compel the owner of the property or another person to deliver up the property; and
(4)(a) In the course of the commission of the commission of the crime or the immediate flight therefrom, the defendant (1) caused physical injury to [the victims] or (2) displayed what appeared to be a firearm. . ., [46]

         In contrast, Assault First Degree requires a jury to find beyond a reasonable doubt that: "[t]he defendant caused serious physical injury [to the victim]; . . . [t]he defendant acted intentionally; and . . . [t]he defendant used a firearm to cause the injury."[47] There are thus several facts necessary to prove either offense, which are not common to both. And, assault and robbery are sufficiently distinct offenses. One is against just persons (assault) and the other is against both persons and property for the sake of obtaining that property (robbery). Thus, § 208(1)(b)(1) allows the second indictment.

         Alternatively, § 208(2), which bars a second prosecution when the former prosecution "necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense, "[48] allows the second indictment because at the first trial the jury was instructed that the State had to prove Holland intentionally caused "serious physical injury" and used a firearm to cause the injury.[49] Thus, the jury could have determined that Holland did not intentionally cause Moore's injuries or that those injuries did not meet the definition of "serious physical injury." Thus, its conclusion did not necessarily require a determination inconsistent with Holland possessing a firearm or using it to cause injury. Therefore, under either relevant provision of § 208, the State was not estopped from proving all the elements of Attempted Robbery of Moore.

         C.

         1.

         Holland prevails on his final argument challenging the second indictment, which is that indicting him for Attempted Robbery ran afoul of the federal due process concept of vindictive prosecution. We are confronted with a situation where the State had ample evidence from the beginning to charge Holland with Attempted Robbery, motivated by Holland's perception that Moore was a drug dealer, even if the State also believed Moore would testify he did not currently sell marijuana at the time of the incident. But, the reality is that the State did not charge Attempted Robbery before the first trial and exclusively focused on Assault. Attempted Robbery was only pressed after Holland proceeded pro se and was cleared of the most serious charges at his first trial. Although those facts do not implicate 11 Del. C. § 208's bars on new prosecutions, they do implicate the related federal due process concept of vindictive prosecution, which "requires that a defendant be freed of apprehension" of "retaliatory motivation" on the part of prosecutors.[50]

         The State argues that the vindictive prosecution argument was not presented to the Superior Court and thus should be reviewed for plain error.[51] Holland contends he raised the argument "repeatedly."[52] We agree with Holland. In this context, "vindictive" does not have the normal meaning of desiring revenge.[53] Rather, vindictive prosecution is a federal due process concept that, generally, on reindictment or retrial, the State may not substitute a more serious charge for one brought in the initial proceedings.[54] This is based on the intuition that prosecutors could dissuade defendants from pursuing their rights by holding as-or-more serious charges for the same behavior in reserve. As the U.S. Supreme Court described in Blackledge v. Perry[55]:

There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that "since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be free of apprehension of such retaliatory motivation on the part of the sentencing judge." ... A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.[56]

         In Johnson v. State, [57] this Court confronted a case where a defendant was initially indicted for charges that would have resulted in possible penalties of life imprisonment and thirty-four years of prison time.[58] After a mistrial, the defendant appealed, and was later reindicted with charges that would have resulted in mandatory life imprisonment, and seventy-four years of prison time.[59] This Court applied Blackledge, and observed that everything Blackledge "said about indictment for a felony following an appeal from a misdemeanor conviction is equally applicable to an enlarged indictment following a defendant's successful motion for mistrial."[60] "The only reason appearing in the record for reindicting the defendant on the more serious charges is a statement of the prosecutor . . . that the defendant was undercharged."[61]

         The situation here fits within the circumstances recognized in Blackledge and Johnson as giving rise to a presumption of vindictive prosecution, as the State itself conceded.[62] There is also a human reality at work in this case. The State could not have been pleased to have a defendant like Holland represent himself at trial, be confronted with what seemed to be very strong evidence of inexcusable and unprovoked criminal behavior, and to walk out of court acquitted on multiple major charges and without a conviction on the others. Any prosecutor would feel the sting of that. Because the circumstances therefore invoke the presumption of vindictive prosecution, the State must show there was some legitimate reason why the charges couldn't be presented the first time.[63] Before we reach the merits, though, we explain how we understand Holland to have presented his argument to the Superior Court.

         2.

         Holland first raised the vindictive prosecution argument in two pro se letters he wrote to his attorney at the time and the Superior Court-both letters were received before Holland elected to proceed pro se. In the first letter, sent to Holland's attorney and entered into the record, Holland stated his concerns that the State knew before the first trial that Moore had a reputation as a drug dealer, contradicting what the State, in Holland's view, asserted after the fact to justify the new indictment on Attempted Robbery.[64] Holland then stated "I don't want to call the State['s] attorney a liar, and I won't, but I will say that it's prosecutorial misconduct and somewhat vindictive" and cited Johnson v. State, [65] the main case where this Court addresses the federal due process concept of vindictive prosecution. Similarly, in his letter to the Superior Court, Holland outlined what he thought were the State's misrepresentations about what it knew before the first trial about Moore's reputation for being a drug dealer.[66] He also expressed frustration that his attorney had not raised this argument with the Superior Court. Holland then asked the Superior Court to find some way to "address" the State's alleged misrepresentations to ensure "this is a fair trial and lying of an official of the court of law does not constitute fairness as well as holding back of this information by a lawyer or official."[67] Holland closed the letter, asking "[p]lease stop this maliciousness and vindictiveness, in the interest of justice."[68] In both letters, Holland contrasted the evidence available to the State before the first trial, including evidence the State used at that trial, all tending to show the State was aware Moore had been a drug dealer in the past and, at a minimum, was perceived to be a drug dealer, with the State's statements before the second trial that it was not aware Moore was a drug dealer at the time of the incident.[69] Thus, we understand Holland to mean, when he referred to lying, that he believed the State's indictment on Attempted Robbery was not based on new information, but rather that the State lied when it denied that it could have brought the Attempted Robbery charges with the information it had before the first trial. Indeed, at oral argument, the State conceded the letters raised a vindictive prosecution claim, but argued that Holland did not renew the claim before the Superior Court when he was actually representing himself.[70]

         But, Holland raised his vindictive prosecution argument at trial as well. On the morning of jury selection, Holland stated that he had a disagreement with his lawyer about a point he wanted to make, that "the prosecutor lied in their motion, and I wanted that addressed to the courts."[71] The combined reference to the State lying and his lawyer's failure to press the argument refers back to Holland's letter to the Superior Court.[72]

         Furthermore, on the first day of trial, the Superior Court invited Holland to "make any argument you wish over and beyond what was set forth in Mr. Figliola's motion for reargument filed September 4."[73] After some back and forth, Holland stated "I wanted to bring up the fact that the prosecution lied in the last motion. I wasn't done rearguing that fact, that they lied. And I wanted my lawyer to bring that up and he didn't bring that up. That basically was my issue."[74]Again, this is a return to his rhetoric in the letters, where the State concedes a vindictive prosecution claim was raised. Changing tack from its original direction that Holland could make any argument above and beyond the motions already on the table, the Superior Court replied that the only argument he would hear at that point was on the motion in limine. Holland replied: "if they lying, I can't get a fair trial if they're lying."[75] By lying, we understand Holland to be referring to the State's contention that it did not have evidence to prosecute him for Attempted Robbery at his first trial. Holland reiterated "I don't think lying constitutes a fair trial. For the record, lying doesn't constitute a fair trial. And that's a violation of a fair trial, to be lied about."[76] The Superior Court then observed that Holland could address his concerns on appeal. In ...


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