Submitted: November 28, 2018
Defendant's Motion for Postconviction Relief (R-1) DENIED
Hrivnak, Esquire, Deputy Attorney General, Department of
Justice, Attorney for State of Delaware.
Christopher S. Koyste, Esquire Law Office of Christopher S.
Koyste LLC, 709 Brandywine Blvd., Wilmington, DE 19809;
Attorney for Petitioner Anthony Nastatos.
AMENDED MEMORANDUM OPINION
December of 2012, a jury found defendant Anthony Nastatos
("Defendant" or "Nastatos") guilty of one
count of Harassment (as a lesser included offense of
Stalking), three counts of Breach Conditions of
Bond During Commitment("BCBDC"), and sixteen counts of
Non-Compliance with Bond Conditions("NCBC"). In March of
2013, he was sentenced to thirty-two years at Level V,
suspended after sixteen years for decreasing levels of
probation. The Delaware Supreme Court affirmed the
conviction in April of 2014. Defendant has now filed a Motion
for Postconviction Relief under Superior Court Criminal Rule
61 on the basis that he was denied effective assistance of
counsel at his 2012 trial and during his subsequent appeal in
raises several claims under both the United States
Constitution and the Delaware Constitution alleging that his
conviction and his sentence resulted from violations of his
right to due process and right to effective assistance of
counsel. Specifically, he claims that trial counsel was
ineffective for: (1) failure to limit references to prior bad
acts (incarceration) and mental health issues and to request
a limiting jury instruction thereon, either during or after
trial; (2) failure to object to a police officer's
impermissible hearsay testimony; (3) failure to object to
prejudicial errors committed by the State of Delaware (the
"State") during its direct examination of the
victim; (4) failure to object to the Court's limiting
instruction on inadmissible evidence; (5) failure to review
the victim's cell phone records; and, (6) failure to move
for the trial judge's recusal before sentencing.
Defendant claims that the State failed to provide him with
the complaining witness' cell phone records, which
might have contained Brady material. He
claims these cumulative errors denied him a fair trial. He
alleges appellate counsel was ineffective on direct appeal
for: (1) failure to raise cumulative errors at the trial;
and, (2) failure to object to certain comments made by the
judge before the sentencing hearing.
that Defendant has failed to satisfy the prejudice portion of
the two-part test set forth in Strickland v.
Washington 'Strickland"), as
discussed more fully below, as to his allegation of
ineffective assistance of trial counsel. I further find that
Defendant has failed to satisfy either the performance
portion or the prejudice portion of the
Strickland'test as to his allegation of
ineffective assistance of appellate counsel. Finally, I find
that Defendant's speculative Brady claim is
procedurally barred. Accordingly, the Motion is DENIED.
was arrested and charged in October of 2010 with Stalking
which was later reduced to two counts of
Harassment. In February of 2011, Nastatos was
arrested and charged with Stalking and twenty counts of
misdemeanor NCBC. In all instances, Alexandra Koval
("Koval") was the complaining witness. The cases
were consolidated after being transferred to the Superior
Court in March 2011.
Superior Court ordered Nastatos to undergo a psychiatric
evaluation in April 2011. On June 20, 2011, Nastatos was
indicted by a grand jury. As a result of allegations he
violated the no contact order against him, Nastatos was
re-indicted on March 12, 2012,  and again on May 21,
trial began on December 11, 2012. At trial, the State
entered nolle prosequis on six counts of misdemeanor
NCBC after the Court excluded exhibits which it ruled were
not properly authenticated. Nastatos' motion for
judgment of acquittal on the remaining counts was
four-day trial, a jury found Nastatos guilty of the remaining
charges, including: three counts of felony BCBDC, one count
of Harassment (as a lesser included offense of Stalking), and
sixteen counts of misdemeanor NCBC. A presentence
investigation was conducted and on March 1, 2013, and,
effective February 22, 2011, Nastatos was sentenced to 32
years at Level V, suspended after 16 years for decreasing
levels of probation. Nastatos appealed his conviction and
sentence and the Delaware Supreme Court affirmed the Superior
convictions arise from a series of events where he
continuously sought out his former co-worker at her home, her
place of work, by mail, and through social media despite
police warnings, court orders, and incarceration. The facts
are summarized as follows:
Nastatos and Alexandra Koval ("Koval") met in
August 2009, while working at the same restaurant on Route
202 in New Castle County.
The two developed a friendly relationship. Soon after they
met, Nastatos anonymously covered Koval's car with flower
petals. He later admitted to the act and told her he had
romantic feelings for her. Koval told Nastatos she did not
have romantic feelings for him.
A few days later, Koval and Nastatos went shopping together,
had dinner at a restaurant, and met another co-worker for
drinks that night. Nastatos' behavior that night made
Koval uncomfortable. Koval's discomfort forced her to
cancel other plans they had made together. After that, she
A couple of months later, Koval's car ran out of gas and
she was required to take a different vehicle to work.
Nastatos left a can of gas for Koval at work. Later, another
can of gas was found at her house next to her car. After
this, Nastatos began to regularly send Koval lengthy love
poetry via text messages, and to wait for Koval after work.
Koval told Nastatos that these overtures made her
uncomfortable and asked him to leave her alone.
Nastatos then attempted to "friend" Koval on
Facebook, under the pseudonym "Anakin Skywalker."
Koval rejected this friend request. Next, Nastatos attempted
to friend Koval from a Facebook account attached to his real
name. Koval neither accepted nor denied this friend request.
The pending friend request allowed Nastatos to send Koval
private messages on the Facebook website.
In the spring of 2010, Nastatos sent Koval a late night text
message containing a long poem. Koval told her coworker about
the text, and Nastatos' previous behavior. The co-worker
told the restaurant's management. Koval's manager
examined the text messages and transferred Nastatos to
Around this time, Koval also made her first report to the New
Castle County Police Department ("NCCPD"). The
NCCPD told Koval to block Nastatos' cell phone number,
which she did. Nastatos then began regularly contacting Koval
on Facebook, both through the account associated with his own
name and the account with the name "Anakin
In various messages, Nastatos called Koval his
"wife" and "soul sister." He also
referenced Koval contacting the police, a necklace he had
given Koval, and mutual friends and co-workers. Nastatos
asserted his belief that the restaurant management was
conspiring against him. In one message, Nastatos said,
"I love you like I've never loved another person,
but I can only do so much, especially when you are working
against me." Nastatos also referenced a desire to
"challenge" anyone for Koval's
In September 2010, Koval again contacted the NCCPD. Police
visited Nastatos, who claimed he and Koval were dating. The
police advised Nastatos to stay away from Koval. Nastatos
then expressed a belief that the police, the restaurant
management, and Koval's father were all "in on"
keeping Koval and Nastatos apart.
The police visit did not dissuade Nastatos. He sent Facebook
messages to Koval twice after the visit, referencing their
prior dinner together and stating he was going to come to her
new restaurant working location to see her. The NCCPD then
arrested Nastatos. The Justice of the Peace placed bail
conditions on Nastatos to have no more direct or indirect
contact with Koval.
Nastatos continued to regularly send Koval Facebook messages,
begging her to talk to him. Nastatos also sent a message to
Koval's father discussing Koval and referencing the
restaurant management's conspiracy to keep him and Koval
apart. In January 2011, Nastatos sent Koval a Facebook
message telling her the no-contact order did not matter
because the two were bound by a higher power. Nastatos
continued to regularly send Koval Facebook messages
referencing her employer, the NCCPD, and his desire to meet
On February 9, 2011, Nastatos sent Koval a message stating he
would be at the Riverfront in Wilmington waiting for her.
Koval was at her second job at a restaurant at the Riverfront
and saw Nastatos outside of the window of the restaurant. The
two did not interact.
Six days later, Nastatos arrived at the restaurant, which was
Koval's primary place of employment, and attempted to
speak with Koval. Koval ran to her car. As she was fleeing,
Nastatos threw a ring box at her. Koval contacted the NCCPD.
Nastatos sent Koval a Facebook message saying that the
restaurant manager would be holding the ring for Koval.
days later, Nastatos sent Koval the following Facebook
Allie, I'm in love with you. Never in my life have I
cared about one person more than you. Half of me wants to
kill people for interfering. If you ask, I will.... I have
had many people take a knee to me. Never have I kneeled to
another person until I kneeled to you. I will be wearing our
wedding bands until I see you again.
Koval contacted the NCCPD, who arrested Nastatos for
additional charges. The Justice of the Peace Court issued a
second no-contact order.
In March 2011, while incarcerated, Nastatos sent Koval a
letter asking if she would marry him. He sent her a second
letter five months later, referring to her as "Alexandra
Nastatos" and professing his continued love for her. In
this second letter, he also referenced her employer and his
interactions with the NCCPD. Eight months later, Nastatos
sent Koval a third letter. In this letter, he referenced her
employer, the restaurant manager, the NCCPD, and Koval's
Nastatos was charged with one count of felony Breach of
Conditions of Bond During Commitment for each letter. He was
also charged with Stalking and one count of misdemeanor
Non-Compliance with Conditions of Bond for each of the
Facebook messages he sent after his bond condition was
Subpoenaed Cell Phone Records
trial, the State subpoenaed the victim's cell phone
provider, requesting copies of "subscriber and call
detail records for all incoming and outgoing calls."
Text messages were neither requested nor received. The State
reviewed the call records and found that neither of the two
telephone numbers associated with Nastatos appeared in those
records. The State did not produce a copy of the call records
to Trial Counsel, but it did notify Trial Counsel that he
could review the records in full. Trial Counsel never
arranged a time to review the cell phone records.
initially found incompetent to stand trial, Nastatos was
later deemed competent after receiving treatment at the
Delaware Psychiatric Center. Nastatos' case proceeded
to trial and the jury was selected on December 11, 2012.
Testimony began the next day.
Complaining Witness' Testimony
State's first witness in its case-in-chief was Koval.
Koval's testimony included several statements describing
the messages, Emails and letters that Nastatos had sent her.
After the first mention of receiving a message from Nastatos,
Trial Counsel objected on the grounds that a proper
foundation was required under Delaware Rules of Evidence
("D.R.E.") 901 before Koval could testify that
Nastatos indeed sent the message. In sustaining the
objection, the Court advised the State to "establish a
foundation as to why she concluded [the message] was from
[Nastatos] and what she based that on."
Counsel objected on numerous occasions during the State's
direct examination of Koval to the non-authentication under
D.R.E. 901 of the messages, Emails and letters referenced by
the State. The Court conducted several sidebar conferences
with counsel discussing how to lay a proper foundation, and
instructed and corrected the State in front of the jury on
several occasions. Trial Counsel also maintained a continuing
objection to the conditional admission of all of the evidence
on the grounds that the D.R.E 901 requirements had not been
References to Mental Health and Prior Incarceration
trial the State sought to introduce thirty-eight documents
consisting of emails, text messages, Facebook messages and
posts, and letters sent from Nastatos to Koval while he was
in prison. Trial Counsel objected to the admission of each
document, arguing that the State failed to properly
authenticate them pursuant to D.R.E. 901. The Court
conditionally admitted the evidence, provided the State could
lay the proper foundation.
documents there were several statements about Nastatos'
prior incarceration and psychiatric hospitalization. The
statements were written by Nastatos himself in various
communications to Koval. Three references were made to
Defendant's prior incarceration:
• ".. .But I did go to jail."
• "., . again I'll be in
• "I've been in jail before, longest bit, one
year. A lot of people can't handle jail; it definitely
tests a person. Though I'd rather be free, I'm
Counsel did not specifically object to these references, but
maintained a continuing objection on Rule 901 grounds. The
State suggested the possible need for a curative instruction
based on the "[I]'ve been in jail before . .."
statement, but did not have preference as to when the
instruction was given. Trial Counsel asked that the
instruction be given at the end of trial. The trial
testimony also included six references to Defendant's
mental illness or hospitalization at a mental health
• "First, I have an OCD"
• "I ended up in a hospital"
• "I woke up in Meadow
• "When I was in Meadow
• "I was diagnosed
• "They sent us to the State
Hospital-they sent me to the State Hospital for
treatment because I believe the above statement. They pumped
me full of drugs for months. . ."
Counsel did not specifically object to any of these
references, although he maintained a continuing objection on
D.R.E. 901 grounds.
direct examination of Officer Kerri Clarke, the State
elicited testimony about prior statements made by witness
Koval to Officer Clarke. These prior witness statements were
not inconsistent with Koval's testimony, were not offered
to rebut an "express or implied charge against [Koval]
of recent fabrication or improper influence or motive,"
nor were they identifying Defendant. Thus they constitute
hearsay under D.R.E. 801(d)(1) and were inadmissible. The
State did not seek to admit the prior witness statement under
11 Del. C. §3507. Trial Counsel did not object
to this testimony.
Jury Instruction and Verdict
the State concluded its case-in-chief, the Court excluded six
of the thirty-eight exhibits that had been conditionally
admitted because the State did not lay a sufficient
foundation for them. As a result, the State entered nolle
prosequis on the six related counts of NCBC.
close of the evidence, the Court instructed the jury. The
jury was not given a limiting instruction as to either the
references to Nastatos' prior incarceration or his mental
concluded on December 19, 2012. Nastatos was convicted of one
count of Harassment (as a lesser included offense of
Stalking), three counts of felony BCRDC, and the remaining
sixteen counts of misdemeanor NCBC. A presentence
investigation was ordered, and sentencing was scheduled for
the following March. No post-verdict motions were filed.
March 1, 2013, when the State moved for Nastatos'
sentencing, Trial Counsel immediately asked the Court for a
sidebar conference. At sidebar, Trial Counsel asked to put on
the record comments that were allegedly made by the Court
during or before trial:
TRIAL COUNSEL: What I want to put on the record is that
during either the pretrial or during the trial conference in
Chambers, the Court indicated to counsel that the Court has
four daughters, and that if the Defendant had been doing what
he was doing in this case to the Court's daughters, then
the Court would have to stop him. And I forget the exact
language used, but it was: I would have to run him down or
gun him down, or stop him.
COURT: Mr. Flockerzie, first of all, I don't use that
kind of terminology. I might have said he'd tuck his head
between his legs and kiss something good-bye, but personally
I wouldn't have said that. But what are you telling me?
That if he was found guilty, ...