Date: 03-13-2016

Case Style: STATE OF DELAWARE v. LUIS REYES

Case Number: 9904019329

Judge: Andrea L. Rocanelli

Court: SUPERIOR COURT OF THE STATE OF DELAWARE

Plaintiff's Attorney: Elizabeth R. McFarlan, Esquire, Maria T. Knoll, Esquire

Defendant's Attorney: Patrick J. Collins, Esquire

Description: The bodies of Brandon Saunders and Vaughn Rowe were discovered in a wooded area of Rockford Park in Wilmington, Delaware, on January 21, 1996. Nearly four years later, on December 6, 1999, Luis Reyes ("Reyes") and Luis Cabrera ("Cabrera") were indicted as co-defendants for the murders of Saunders and Rowe ("Rockford Park Murders").1 The State sought the death penalty for both Reyes and Cabrera in connection with the Rockford Park Murders. Counsel was appointed for both defendants.2 The trials of Cabrera and Reyes were severed by the Trial Court.3

A. Reyes Rockford Park Trial and Direct Appeal

Cabrera was tried first and convicted of all counts by a jury, which recommended by a vote of 11-1 that the death sentence be imposed. Reyes' trial for the Rockford Park Murders took place thereafter ("Reyes Rockford Park Trial"): jury selection started on September 18, 2001; the guilt phase began on October 2, 2001; jury deliberations began on October 18, 2001; and, on October 19, 2001, the jury returned a verdict finding Reyes guilty of two counts of First

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Degree Murder, two counts of Possession of a Firearm During the Commission of a Felony, and two counts of Conspiracy in the First Degree.

During the guilt phase, Reyes moved for a mistrial on grounds of juror misconduct. The Trial Court denied the motion, concluding that the jurors were able to continue in an unbiased manner. The penalty phase began on October 23, 2001, and ended on October 26, 2001. The jury recommended that Reyes receive the death sentence for each of the two murders by a vote of 9-3. By decision and Order dated March 14, 2002, the Trial Court sentenced both Reyes and Cabrera to death.4

An automatic, direct appeal was filed with the Delaware Supreme Court,5 which addressed several issues: (i) the Trial Court's denial of individual voir dire during jury selection; (ii) the admission into evidence of Reyes' testimony during cross-examination in the Otero trial;6 (iii) the admission into evidence of two statements attributed to co-defendant Cabrera; (iv) the admission into evidence of testimony about the victims' state of mind on the night of the Rockford Park Murders; (v) alleged juror misconduct; (vi) whether jury deliberations were tainted by consideration of information not in evidence; (vii) the constitutionality of the

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1991 Delaware Death Penalty Statute; and (viii) an independent review of the death sentence, including statutory aggravators, and whether the imposition of the death penalty was arbitrary or capricious. The Supreme Court affirmed Reyes' convictions and death sentences by Opinion and Order dated March 25, 2003.7

B. Appointment of Rule 61 Counsel and Postconviction Motions

By letter dated March 8, 2004, Reyes notified the Trial Court that Reyes intended to pursue postconviction relief and requested appointment of counsel. The Trial Court appointed counsel to represent Reyes in the postconviction proceedings ("Rule 61 Counsel").8 Reyes' Rule 61 motion filed in March 2004—amended in 2005, 2007, in 2009, and as briefed in 2014, and 2015—is now pending before this Court for decision.9

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There was little physical evidence presented at the Reyes Rockford Park Trial that connected Reyes to the Rockford Park Murders. Rather, most of the evidence presented at the Reyes Rockford Park Trial tied Cabrera to the Rockford Park Murders. With little physical evidence linking Reyes to the Rockford Park Murders and with the possibility of a sentence of death, it was essential to a fair trial and sentencing that Reyes Trial Counsel use all available evidence and "make timely and appropriate objections to the admission of evidence going to the heart of the State's case."10 Therefore, it was especially important that Reyes Trial Counsel use all available exculpatory evidence and make appropriate objections to challenge the State's minimal case. This Court's review of the record leads the Court to conclude that mistakes were made that undermine this Court's confidence in the Reyes Rockford Park Trial conviction and sentencing.

First, Reyes' decision to invoke his Fifth Amendment right during the guilt phase was not knowing, intelligent, and voluntary. Second, the Trial Court's delay in sentencing Cabrera rendered Cabrera unavailable as a witness in the Reyes Rockford Park Trial, denying access to important exculpatory evidence. Third, the testimony of Roderick Sterling was the most significant evidence against Reyes; however, it was highly suspect and because Sterling did not have personal

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knowledge of the claims he made, Reyes was deprived of his Sixth Amendment Right to Confrontation. Fourth, Reyes has established various claims of ineffective assistance of counsel in both the guilt and penalty phases of the Reyes Rockford Park Trial that cumulatively prejudiced Reyes.

There is a reasonable probability that the outcome of the Reyes Rockford Park Trial verdict and sentencing would have been different absent these errors. Therefore, Reyes' judgments of conviction and death sentence imposed by Order dated March 14, 2002 must be vacated.

II. CONSIDERATION OF PROCEDURAL BARS

Superior Court Criminal Rule 61 governs Reyes' motion for postconviction relief.11 Postconviction relief is a "collateral remedy which provides an avenue for upsetting judgments that have otherwise become final."12 To protect the finality of criminal convictions, the Court must consider the procedural requirements for relief set out under Rule 61(i) before addressing the merits of the motion.13

Rule 61(i)(1) bars a motion for postconviction relief if it is filed more than three years from the final judgment; this bar is not applicable as Reyes' first postconviction motion was filed in a timely manner.14 Rule 61(i)(2) bars

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successive postconviction motions;15 this bar is not applicable as Reyes has not filed successive postconviction motions. Rule 61(i)(3) bars relief if the motion includes claims not asserted in prior proceedings leading to the final judgment; this bar will be addressed in the discussion of the claims to which it applies. Rule 61(i)(4) bars relief if the motion includes grounds for relief formerly adjudicated in any proceeding leading to the judgment of conviction, in an appeal, or in a postconviction proceeding; this bar will be addressed in the discussion of the claims to which it applies.

This Court rejects the State's contention that certain claims set forth in the pending Rule 61 Motion should not be considered because those claims were not presented in prior Rule 61 Motions. This is Reyes' first Rule 61 Motion because the prior motions were not adjudicated. Moreover, the Trial Court allowed postconviction evidentiary hearings that further developed the record. There have been numerous changes in Reyes' postconviction counsel since Reyes first filed his Rule 61 Motion in 2004. The Trial Court permitted successive, amended, and supplemental motions to be filed on Reyes' behalf. To consider claims barred after the Court permitted amendments and supplements would render the expanded record superfluous, Rule 61 Counsel's efforts futile, and would violate Reyes' rights to full and fair consideration of whether Reyes' death penalty trial and

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sentencing was conducted in a manner consistent with Reyes' due process rights. Accordingly, this Court will consider the claims presented in the briefing without regard to whether claims were presented in Rule 61 motions were not adjudicated.

The procedural bars to postconviction relief under Rule 61(i)(3)16 can be overcome if the motion asserts a colorable claim that there has been a "miscarriage of justice" as the result of a constitutional violation that undermined the fundamental fairness of the proceedings.17 Likewise, the procedural bar under Rule 61(i)(4)18 can be overcome if consideration of the claim on its merits is warranted in the "interest of justice."19

Finally, Reyes' postconviction motion asserts multiple claims of constitutional violations, including claims of ineffective assistance of counsel. The Delaware Supreme Court has declined to hear claims of ineffective assistance of counsel on direct appeal.20 Therefore, the first opportunity for Reyes to assert such claims is in an application for postconviction relief.

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III. THERE ARE COLORABLE CLAIMS OF MISCARRIAGE

OF JUSTICE IN THE REYES ROCKFORD PARK TRIAL.

Pursuant to Rule 61(i)(5), procedural bars to postconviction claims are not applicable to a "colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."21 Not every constitutional violation merits relief under the "miscarriage of justice" exception.22 Rather, a criminal defendant must establish a colorable claim of a constitutional violation, which requires the criminal defendant show "some credible evidence which takes the claim past the frivolous state."23

Moreover, pursuant to Rule 61(i)(4), the Court must address any postconviction claim that has been formerly adjudicated if "reconsideration is warranted in the interest of justice." A criminal defendant may trigger the interest of justice exception by presenting legal or factual developments that have emerged subsequent to the conviction.24 The interest of justice exception is narrow in scope; however, the Court must also preserve the purpose of Rule 61(i) procedural bars: achieving finality of judgments.25

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Upon consideration of the entire record, this Court finds there was a miscarriage of justice pursuant to Rule 61(i)(5), that reconsideration of otherwise procedurally barred claims is warranted in the interest of justice pursuant to Rule 61(i)(4). Legal developments have emerged subsequent to the convictions, Reyes was deprived of his constitutional rights, and the integrity of the Reyes Rockford Park Trial was compromised.

A. Reyes' Fifth Amendment rights were violated.

1. Reyes' decision to invoke his Fifth Amendment right at the guilt phase was not knowing, intelligent, and voluntary.

The decision of whether or not to testify is a fundamental right.26 In making that decision, Reyes should have had the opportunity to consider that evidence regarding his involvement with the Otero murder would be admitted during the penalty phase as an aggravating factor. In his allocution during the penalty phase of the Reyes Rockford Park Trial, Reyes professed his innocence. Specifically, Reyes stated: "[O]n everything that I love and on the Word of God, I did not kill Brandon and Vaughn. I did not take their life. No matter how bad things may look, the evidence that was presented, I'm not the murderer of them two."27 Reyes explained to the jury that he had wanted to testify to profess his

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innocence during the guilt phase, but he did not do so because Reyes did not want the jury to hear about Reyes' role in the Otero murder.28

A criminal defendant alone must make the fundamental decision whether to testify on his own behalf.29 The decision regarding whether to testify must be made by a criminal defendant and cannot be made by defense counsel30 because such a choice "implicate[s] inherently personal rights which would call into question the fundamental fairness of the trial if made by anyone other than the defendant."31 Furthermore, waiver of the right to testify on one's own behalf must be knowing, intelligent, and voluntary.32 Whether a waiver of a constitutional right is knowing, intelligent, and voluntary depends upon the facts and circumstances of each case.33 A waiver of a constitutional right is knowing, intelligent, and voluntary "if the defendant is aware of the right in question and the likely consequences of deciding to forego that right."34

Although the Trial Court conducted an appropriate colloquy with Reyes and Reyes stated in open court that his decision was voluntary and not a product of a

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threat or promise,35 Reyes' waiver of his right to testify was predicated on the mistaken understanding that, if he did not testify, then information regarding his involvement in the Otero murder would not be presented to the jury. During his allocution, Reyes explained: "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."36

Despite this very significant step taken by Reyes, i.e. not testifying in his own defense to profess his innocence, the jury heard about the Otero murder in great detail—not only from the State, but also from Reyes' own lawyers. For example, during the penalty phase, the State started its opening statement with a photograph of Otero and told the jury that the Rockford Park Murders were not the first time that Reyes had committed murder. The Otero murder was the central focus of the State's arguments in favor of death. In addition, Reyes Trial Counsel introduced the transcript from Reyes' sentencing for the Otero murder. Highlighting the prior murder, in introducing the transcript to the jury,37 Reyes Trial Counsel stated:

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I'm going to skip the niceties. I'm going to get right to the heart of the matter and I want to tell you that this—and I'm going to tell you that this is the sentencing transcript of September 25th, 1988 of Luis Reyes who was being sentenced on a murder second charge for the murder of Fundador Otero.38


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, including by Reyes Trial Counsel. In making the decision not to testify, Reyes should have had the opportunity to consider that evidence regarding his involvement with the Otero murder would be admitted during the penalty phase as an aggravating factor.

Accordingly, Reyes' decision was not knowing or intelligent because it was premised on a misunderstanding. The introduction of evidence about Otero

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coupled with Reyes' expectation that such evidence would not be introduced seriously undermines whether Reyes' decision was knowing, intelligent, and voluntary.

2. The State's presentation of Reyes' prior testimony from another proceeding undermined Reyes' decision to invoke his Fifth Amendment right not to testify.

When Reyes was interviewed by police regarding the Otero murder, Reyes told police that he made a statement to his girlfriend/fiancé, Elaine Santos, that one night Reyes was with Cabrera, someone came to Reyes' house, and Cabrera and Reyes went to the basement to beat him up. As part of Reyes' plea agreement in the Otero murder, Reyes agreed to testify as a witness against Cabrera in Cabrera's Otero murder trial in 1998. During Cabrera's Otero murder trial, the State questioned Reyes about his statement to Ms. Santos and Reyes admitted that he lied to Ms. Santos. Subsequently, during the guilt phase of the Reyes Rockford Park Trial, the State read into evidence (with a detective on the witness stand) this part of Reyes' trial testimony from Cabrera's Otero murder trial.39 It appears the State's purpose in introducing this testimony was twofold: (1) to suggest that the beating involved Saunders and Rowe and had taken place on the night of the Rockford Park Murders; and (2) to suggest to the jury that Reyes is a liar.

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This was improper and objectionable. Although Reyes Trial Counsel objected to the reading in of Reyes' prior testimony,40 the Trial Court permitted Reyes' prior testimony to be read to the jury in the Reyes Rockford Park Trial. The Trial Court simply explained that the testimony was probative and determined there was no Delaware Rule of Evidence ("DRE") "403 issue that prohibit[ed] its admission."41 However, Reyes' former testimony was nevertheless inadmissible hearsay and undermined Reyes' choice to invoke his Fifth Amendment right not to testify.

"Evidence of a person's character or a trait of his character is not admissible for the purpose of proving action in conformity therewith on a particular occasion."42 However, an exception to this rule includes "[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same."43 Moreover, a witness' credibility may be impeached by evidence in the form of reputation or opinion.44 Generally, a witness' credibility may not be impeached with extrinsic evidence of a specific instance of conduct.45 However, in the discretion of the Court, a specific instance of conduct related to the witness'

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credibility may be "inquired into on cross-examination of the witness" if it concerns "the witness' character for truthfulness or untruthfulness" or it concerns "the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified."46

There is nothing in the record that suggests that Reyes Trial Counsel introduced evidence regarding the character trait for truthfulness or untruthfulness for Saunders, Rowe, or Reyes. Further, Reyes' testimony that was introduced was neither opinion nor reputation evidence as permitted under the DRE. Instead, it was a specific instance of conduct, which is inadmissible in the form of extrinsic evidence and can only be inquired into on cross-examination. Accordingly, evidence of Reyes' character trait for truthfulness was inadmissible because he was not a witness in the Reyes Rockford Park Trial because he invoked his Fifth Amendment right, and his character for truthfulness was not otherwise attacked. Moreover, even if Reyes' character for truthfulness was at issue, extrinsic evidence—the reading of the testimony into evidence and introducing it as an exhibit—was inadmissible under the DRE. Presentation of Reyes' own testimony from a prior proceeding undermined Reyes' decision not to testify as a witness against himself.

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B. Cabrera was unavailable as a witness in the Reyes Rockford Park Trial because Cabrera was not promptly sentenced after his conviction.

Cabrera's trial for the Rockford Park Murders took place in early 2001. The jury returned a verdict on February 11, 2001, finding Cabrera guilty of two counts of First Degree Murder, two counts of Conspiracy in the First Degree, and other offenses. The Cabrera penalty phase began on February 13, 2001, and ended on February 15, 2001. The jury recommended that Cabrera receive the death sentence for each of the Rockford Park Murders by a vote of 11-1. The Court postponed Cabrera's sentencing until the completion of the Reyes Rockford Park Trial. Ten months later, Reyes was convicted on October 19, 2001, and on October 26, 2001, the jury recommended that Reyes receive the death sentence for each of the Rockford Park Murders by a vote of 9-3. By decision and Order dated March 14, 2002, the Trial Court sentenced both Cabrera and Reyes to death.47

Although Cabrera's trial concluded more than eight months before the Reyes Rockford Park Trial, Cabrera had not been sentenced by the Trial Court at the time of Reyes' trial. Indeed, the Cabrera death sentence was imposed more than thirteen months after the jury recommended a death sentence for Cabrera. Because his sentencing was still pending, Cabrera was unavailable as a witness at the Reyes Rockford Park Trial.48

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Had Cabrera testified as a witness at the Reyes Rockford Park Trial, Cabrera may have introduced reasonable doubt regarding Reyes' role in the Rockford Park Murders. Specifically, Reyes Trial Counsel met with Cabrera in March 2001 and Cabrera explained to Reyes Trial Counsel that Reyes was not responsible for the Rockford Park Murders, but instead that a man named Neil Walker had committed the murders. Cabrera detailed an altercation that involved Walker, Cabrera, Saunders, and Rowe that gave a motive for Walker to commit the Rockford Park Murders.

However, instead of testifying on behalf of Reyes, Cabrera advised that, if called as a witness in the Reyes Rockford Park Trial, Cabrera would invoke his Fifth Amendment right because he had not yet been sentenced.49 Accordingly, a critical witness with exculpatory evidence for Reyes was unavailable because of the Trial Court's exercise of discretion as to the timing of Cabrera's sentencing. The Trial Court's delay in sentencing Cabrera rendered Cabrera unavailable as a witness in the Reyes Rockford Park Trial, denying access to exculpatory evidence and undermining the fairness of the trial.

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C. The testimony offered by Sterling was highly suspect yet it was the most significant evidence linking Reyes to the Rockford Park Murders.

There was very limited evidence presented at the Reyes Rockford Park Trial that linked Reyes to the Rockford Park Murders. Indeed, there was no physical evidence at all that connected Reyes to the Rockford Park Murders. Instead, most of the evidence presented linked the murders to Cabrera who had already been tried and convicted. Instead, the only evidence presented at Reyes Rockford Park Trial that linked Reyes to the Rockford Park Murders was the testimony of Roderick Sterling, a convicted sex offender who received a significant advantage by testifying against Reyes and who did not even have personal knowledge about the claims he made against Reyes. The Trial Court described this as "the most significant testimony" presented against Reyes by the State.50

1. The benefit offered to Sterling by the State in exchange for Sterling's testimony rendered Sterling's testimony unreliable.

Sterling was arrested on May 2, 1997, for raping a seven-year-old child. Sterling was charged with two counts of Unlawful Sexual Intercourse First Degree and detained at Howard R. Young Correctional Institution ("HRYCI"). At that time, Reyes was also detained at HRYCI for the Otero murder and no one had yet been charged with the 1996 Rockford Park Murders.51

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In June 1997, Sterling—with the assistance of his cellmate Ivan Galindez—sent a letter to Sterling's attorney in the child rape case claiming to have information in connection with the Rockford Park Murders. Specifically, Sterling claimed he had overheard Reyes admit Reyes was responsible for the Rockford Park Murders when Reyes was speaking to Galindez. On January 20, 1998, Sterling gave a statement to the police claiming that sometime between May 1997 and June 23, 1997, a conversation took place between Galindez and Reyes regarding the Rockford Park Murders, which Sterling claimed to have overheard.

On December 1, 1998, Sterling pled guilty to one count of Unlawful Sexual Intercourse Second Degree and was sentenced by Order dated January 29, 1999, to twenty (20) years at Level V, suspended after ten (10) years at Level V, followed by ten (10) years of community-based supervision. On December 6, 1999, Cabrera and Reyes were indicted for the Rockford Park Murders. On September 14, 2001, four days before jury selection for the Reyes Rockford Park Trial, Sterling agreed to testify at the Reyes Rockford Park Trial about the alleged jailhouse confession by Reyes.

Sterling received a huge benefit for his testimony against Reyes. Indeed, after Sterling's testimony in the Reyes Rockford Park Trial, the State joined Sterling's motion to withdraw his guilty plea to Unlawful Sexual Intercourse Second Degree. The motion was granted; Sterling withdrew his plea; the State

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offered Sterling a plea to the lesser offense of Unlawful Sexual Intercourse Third Degree, and recommended a sentence of ten (10) years at Level V, suspended immediately for time served for non-reporting probation at Level I, with the expectation that Sterling would promptly be deported to Jamaica. Therefore, in exchange for his testimony against Reyes, Sterling was released immediately from prison for time served on February 4, 2002, serving half the time to which he was originally sentenced.

2. Sterling did not have personal knowledge regarding the claims he made and, therefore, Reyes was deprived of his Sixth Amendment Right of Confrontation.

Sterling testified inaccurately at the Reyes Rockford Park Trial that Sterling overheard a conversation at HRYCI between Reyes and Galindez and that, in that conversation, Reyes admitted to Galindez that Reyes killed Saunders and Rowe. In other words, when Sterling testified, he claimed to have personal knowledge regarding Reyes' alleged statements. However, in September 2008 when private investigators interviewed Sterling in Jamaica, Sterling claimed that he learned details of the Rockford Park Murders from Galindez and not from Reyes.52 Reyes had a Sixth Amendment right to confront the witness who testified against him.53

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Because Sterling testified against Reyes and not Galindez, Reyes' Sixth Amendment right was violated.

3. The State violated Brady by failing to disclose impeachment evidence.

The State violated Reyes' constitutional rights by failing to disclose impeachment evidence concerning Sterling. Specifically, the State knew that Sterling had a history of drug and alcohol use, convictions, and treatment, yet failed to provide this information to Reyes Trial Counsel. Reyes was prejudiced because without access to this impeachment evidence, Sterling could not properly be cross-examined with information that called into question Sterling's reliability.

Under Brady, the State may not suppress evidence that is favorable to a defendant if the evidence is material to either guilt or punishment.54 Under Delaware law, there are three necessary elements for a finding that a Brady violation occurred: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued.55 Impeachment evidence falls within Brady because it is "'evidence favorable to an accused,' so that, if disclosed and used effectively, it

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may make the difference between conviction and acquittal."56 Moreover, "[e]ffective cross-examination is essential to a defendant's right to a fair trial" because it is the "'principal means by which the believability of a witness and the truth of [his] testimony are tested.'"57 To reverse a conviction based on a Brady violation, a defendant must show that the undisclosed evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."58 The suppressed evidence must "create[] a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."59

Most recently, the Delaware Supreme Court addressed Brady violations in Starling v. State.60 The Court held that the State violated Brady when it "inaccurately describe[ed] the status of [] criminal charges" of a pivotal witness.61 Indeed, the witness identified Starling as the shooter involved in the deaths of two individuals.62 The Delaware Supreme Court identified the witness as "the State's main witness" whose credibility was at stake.63 Specifically, the State inaccurately represented to Starling's trial counsel that the witness' violation of probation and

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outstanding capias were pending during trial; however, those pending legal matters had in fact been dismissed before Starling's trial.64

The reasoning of the Delaware Supreme Court in Starling is applicable here. Just as there was no physical evidence linking Reyes to the Rockford Park Murders, there was also "no physical evidence linking Starling to the crime" of which he was convicted.65 Like the identification witness about whom the Supreme Court expressed concerns, Roderick Sterling was the State's "main witness" in the Reyes Rockford Park Trial. In Starling, the State inaccurately described the pending criminal charges against the State's pivotal witness; similarly, in the Reyes Rockford Park Trial, the State failed to disclose Roderick Sterling's history of drug and alcohol abuse, convictions, and treatment. Reyes could have utilized this information to cast doubt on the credibility of Roderick Sterling as a witness. Cross-examination is critical to a fair trial.66

D. There was a miscarriage of justice in the Reyes Rockford Park Trial.

Viewing the Reyes Rockford Park Trial conviction and sentencing as a whole, Reyes' right to a fair trial was seriously undermined. There are colorable claims of miscarriage of justice in the Reyes Rockford Park Trial, and Reyes was

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deprived of his constitutional trial rights. Accordingly, because the integrity of the Reyes Rockford Park Trial was compromised, the conviction must be vacated.

IV. REYES' ROCKFORD PARK SENTENCING DID NOT MEET

CONSTITUTIONAL STANDARDS BECAUSE THERE WAS

INADEQUATE CONSIDERATION OF REYES' STATUS AS AN

ADOLESCENT AND HIS IMMATURE BRAIN DEVELOPMENT.

When Fundador Otero was murdered, Reyes was just seventeen (17) years old. At the time, Reyes was a high school student and varsity member of the A.I. DuPont High School wrestling team. Reyes confessed to his role in Otero's murder, and agreed to testify against Cabrera.67 At Cabrera's Otero murder trial, Reyes admitted his role, but also explained his reluctance to participate in the crime. Reyes explained how he succumbed to pressure placed on him by Cabrera. In the Reyes Rockford Park Trial—although Reyes was only seventeen (17) years old at the time and despite his confession and cooperation with the police during the Otero investigation and trial—the State and the Trial Court emphasized Reyes' role in the Otero murder as the most significant non-statutory aggravating factor supporting the death penalty for the Rockford Park Murders.

At the time of the Otero murder, Reyes was seventeen (17) years old. At the time of the Rockford Park Murders, Reyes was eighteen (18) years old.68

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Although Reyes had reached the chronological age of adulthood, Reyes was a youthful offender at the time of the Rockford Park Murders. The weight attributed to the Otero crime, for purposes of the penalty phase for the Rockford Park Murders, is inconsistent with the constitutional standards established by the United States Supreme Court for youthful offenders, especially in consideration of the relationship between Cabrera and Reyes. The constitutional standards for sentencing of a youthful offender demand full consideration of Reyes' youth and brain development, as well as consideration of Cabrera's negative influence, particularly in a death penalty case.

A. Constitutional jurisprudence pre-2001

In 1982, the United States Supreme Court decided Eddings v. Oklahoma,69 and held:

[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults.70


The Eddings Court noted: "'[D]uring the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment'

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expected of adults."71 The conclusions reached in Eddings relied, in part, on task force reports dating back to 1967, which provided:

Adolescents everywhere, from every walk of life, are often dangerous to themselves and to others. [A]dolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults. Moreover, youth crime as such is not exclusively the offender's fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America's youth.72


The Eddings Court explained that consideration of an adolescent defendant's background, as well as the defendant's mental and emotional development, did not serve to excuse the defendant's legal responsibility for the crime committed.73 Rather, such considerations are important because "just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing [for the crime of murder]."74

In 1988, the United States Supreme Court held in Thompson v. Oklahoma75 that "the execution of a person who was under 16 years of age at the time of his or

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her offense" is unconstitutional.76 The Thompson Court's reasoning, rather than its holding, is of interest to this Court. Specifically, the decision in Thompson explained that distinctions between juveniles and adults abound in society and these distinctions should apply for purposes of sentencing young criminal defendants:

Justice Powell has repeatedly reminded us of the importance of "the experience of mankind, as well as the long history of our law, recognizing that there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults. Examples of this distinction abound in our law: in contracts, in torts, in criminal law and procedure, in criminal sanctions and rehabilitation, and in the right to vote and to hold office."77


* * * *

It is generally agreed "that punishment should be directly related to the personal culpability of the criminal defendant." There is also broad agreement on the proposition that adolescents as a class are less mature and responsible than adults. We [have] stressed this difference in explaining the importance of treating the defendant's youth as a mitigating factor in capital cases . . . . Thus, the Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. The basis for this conclusion is too obvious to require extended explanation. Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.78

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In 1993, the United States Supreme Court revisited the issue of youth as a mitigating factor in Johnson v. Texas.79 The Johnson Court made clear that "[t]here is no dispute that a defendant's youth is a relevant mitigating circumstance that must be within the effective reach of a capital sentencing jury if a death sentence is to meet the requirements of Lockett and Eddings."80 The Johnson Court held:

A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions. A sentencer in a capital case must be allowed to consider the mitigating qualities of youth in the course of its deliberations over the appropriate sentence.81


The Johnson Court stressed the importance of presenting the qualities of youth as mitigating evidence:

Even on a cold record, one cannot be unmoved by the testimony of petitioner's father urging that his son's actions were due in large part to his youth. It strains credulity to suppose that the jury would have viewed the evidence of petitioner's youth as outside its effective reach in answering the second special issue. The relevance of youth as a mitigating factor derives from the fact that the signature qualities of


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youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.82


Therefore, the constitutional precedent at the time of the Reyes Rockford Park Trial—as established in 1982, 1988, and 1993—required Reyes Trial Counsel to present the transient qualities of youth as mitigating evidence. The purpose of such a presentation was to advise a jury that the youthfulness of a criminal defendant is to be viewed as more than a chronological age. Rather, youthful criminal defendants, such as Reyes, are adolescents, susceptible to their environment, negative influences, and peer pressures but often without the fully developed brain and ability to appreciate the consequences for their reckless and dangerous behaviors. More importantly, evidence of youthfulness allows a jury to consider the fact that, as the youthful defendant ages, his emotional and mental intelligence will develop along with the wherewithal to reason, rationalize, and comprehend consequence.

B. Roper v. Simons

In 2005, the United States Supreme Court readdressed the presentation in a capital trial of youthfulness as mitigating evidence in Roper v. Simmons.83 The Roper Court recognized that capital punishment, the ultimate punishment, should be limited to a narrow category of defendants who commit the most heinous crimes

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with extreme culpability. The Court held that a defendant under the age eighteen (18)—a juvenile—could not receive the death penalty even when the juvenile defendant commits a heinous crime.84

In reaching its conclusion, the Roper Court noted three general differences between juveniles and adults that render the death penalty unconstitutional for juveniles. First, according to scientific and sociological data, juveniles lack maturity and have an underdeveloped sense of responsibility.85 Second, "juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure."86 "This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment."87 Third, juveniles have not developed a sense of character as their personality traits are "more transitory, less fixed."88

The Roper Court summarized the significance of a juvenile's transient youth as follows:

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The susceptibility of juveniles to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult." Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.89


The Roper decision was issued three years after the imposition of Reyes' death sentence. Despite the timing of Roper after the Reyes Rockford Park Trial, the decision is significant. First, the Roper decision is rooted in United States Supreme Court precedent and data from scientific and sociological studies that pre-date the Reyes Rockford Park Trial. Indeed, brain development—particularly development of the brain's executive functions—was already a topic of discussion and scientific research at the time of the Reyes Rockford Park Trial.90 Accordingly, while the Roper decision did establish a new constitutionally-based rule of law three years after the Reyes Rockford Park Trial, Roper did so, almost

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entirely, based on information readily available to Reyes Trial Counsel in 2001. Second, this Court acknowledges that Reyes was eighteen (18) years old at the time of the Rockford Park Murders and, therefore, the rule of Roper does not strictly apply; nevertheless, as the Roper Court explained: "the qualities that distinguish juveniles from adults do not disappear when an individual turns 18."91

Reyes Trial Counsel should have explored and presented mitigating evidence concerning the qualities of Reyes' youth. Moreover, in its penalty phase presentation, the State emphasized Reyes' involvement in the Otero murder, which occurred when Reyes was only a seventeen (17) year old juvenile. More importantly, the Trial Court relied heavily on the Otero murder in sentencing Reyes to death, explaining that the "non-statutory aggravating circumstance [of Reyes' involvement in the Otero murder] weighs about as heavily as such circumstance can get."92

C. Evolving Standards Evidenced in Graham v. Florida and Miller v. Alabama

The trend of recognizing the constitutional differences between youth and adulthood continued in the United States Supreme Court's 2010 decision in Graham v. Florida.93 Noting that juvenile offenders are less culpable than adults, the Graham Court held that it was unconstitutional to sentence a juvenile to life

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imprisonment for any crimes less serious than murder. Referencing Roper, the Graham Court explained that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence."94 The underlying message of Graham is consistent with the message of its decisional predecessors: "[j]uveniles are more capable of change than are adults, and their actions are less likely to be evidence of 'irretrievably depraved character' than are the actions of adults."95

In 2012, the United States Supreme Court decided Miller v. Alabama.96 Reiterating the notion that juveniles are "less deserving of the most severe punishments,"97 and relying on the aforementioned constitutional precedent, the Miller Court held it was unconstitutional to "require[] that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes."98

The reasoning and analysis in support of the rule of Miller, rather than the rule itself, is relevant to the matter pending before this Court. The Miller Court

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concluded that such a mandate—that all juveniles convicted of homicide receive life without a chance of parole—precludes the sentencer from considering critical factors related to the youthful offender even when imposing the harshest penalties. According to the Miller Court, such a mandate precluded consideration of factors such as: (1) the hallmark features of chronological age (immaturity, impetuosity, and the failure to appreciate consequence); (2) the family and home environment from which the youthful offender could not extricate himself; (3) the circumstances surrounding the homicide offense (including the offenders involvement and the effects of peer pressure); (4) the vulnerabilities to negative influence; (5) the features that distinguish adolescents from adulthood; and (6) the possibility of rehabilitation.99 The concept explained in Miller was not new, it was just simplified: children are different.100

In response to Graham and Miller, in 2013, the Delaware General Assembly amended Chapter 42 of Title 11 of the Delaware Code by inserting Section 4209A101 and amending Section 4204A102 to conform Delaware law to the

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constitutional requirements stated by the United States Supreme Court, specifically the differences between juveniles and adult offenders for purposes of sentencing.103

D. Reyes Trial Counsel's mitigation presentation did not include adequate information regarding Reyes' youth as a mitigating factor and, therefore, did not meet constitutional standards.

Reyes Trial Counsel did not present the transient qualities of Reyes' youth in accordance with constitutional demands. To the contrary, Reyes Trial Counsel emphasized Reyes' status as an irredeemable adult predisposed to violence, which Reyes was unable to avoid as an adult. Instead of presenting Reyes as a youthful offender who should be considered less culpable, Reyes Trial Counsel actually presented a so-called "mitigation" case that emphasized Reyes as a violent and dangerous person.

In their penalty phase opening statement, Reyes Trial Counsel showed a picture of Reyes as a toddler—"Point A"—and pointing to Reyes, a convicted murder, in the courtroom—"Point B"—Reyes Trial Counsel explained to the jury that its penalty phase presentation would present evidence meant to "take [the jury] from point A to B. We will introduce this evidence to you for one purpose so you

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can understand why Luis Reyes turned out the way he is."104 Reyes Trial Counsel explained its point A to B theory to the jury as follows:

[T]he evidence is important to help you understand how a child at risk, [a] child like Luis Reyes is molded into a teenager who makes horrible wrong choices. You will hear from our witnesses that at certain important stages of his development Luis Reyes was exposed to certain behaviors by his family members that put him at high risk to commit violent acts . . . . You will hear Mr. Reyes lived in as home with domestic violence both physical and verbal.105


Additionally, in its closing statements of the penalty phase, Reyes Trial Counsel stated, "[t]here is only one truly important question in this case and that's how and why Luis Reyes developed the capacity to commit murder."106 Then Reyes Trial Counsel asked the jury, rhetorically, "How does a child, born like any other child, develop into a teenage murderer?"107 Finally, in one of the final comments for the jury's consideration, Reyes Trial Counsel told the jury: "Reyes' life was marked, measured, and set into place when he was still a child. [Reyes] was unable to escape from the tragic path of his life, though others have escaped, and he became a criminal like all the men who grew up in the Reyes household."108

The record demonstrates that Reyes Trial Counsel only discussed Reyes' "youth" to support a theme that Reyes had been "hardwired for violence" and became a violent and dangerous adult. Reyes was presented as someone who was

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fully developed and beyond the capacity for change. Reyes Trial Counsel did not offer even the possibility for change as Reyes matured chronologically, mentally, intelligently, and so on. Indeed, the jury never heard the idea that the capacities of a youthful offender are less than that of an adult and that youths are still developing and maturing even though these concepts are at the very heart of the jurisprudence demanding consideration of the qualities of youth as mitigating evidence.

This Court is not suggesting that it is per se unreasonable for defense counsel to present only "negative" aspects as its mitigation strategy. It seems that the strategy of Reyes Trial Counsel was meant to avoid death for their client. Nevertheless, in light of constitutional demands, prevailing professional norms, the mitigation investigation conducted, and all of the relevant mitigating evidence in the record, including the postconviction record, the Court finds the presentation did not meet constitutional standards. This is especially because of the Trial Court's significant reliance on Reyes' involvement at age seventeen (17) in the Otero murder as well as Reyes' age at the time of the Rockford Park Murders.

Reyes Trial Counsel failed to present the age-related characteristics of Reyes that weighed against Reyes' moral culpability for the Rockford Park Murders. Instead, Reyes Trial Counsel solely presented "negative" aspects of Reyes and his childhood and argued, essentially, that Reyes was born and raised to become the

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violent man sitting before the jury. Such a mitigation strategy is entirely inconsistent with the well-known concepts of youth underlying our constitutional jurisprudence.109 Executing Reyes based on this presentation would violate constitutional standards. For these reasons, Reyes' death sentence must be vacated.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Standard for Ineffective Assistance of Counsel

Reyes claims that Reyes Trial Counsel provided ineffective legal assistance in violation of Reyes' rights under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Article 1, Section 7 of the Delaware Constitution. The standard used to evaluate claims of ineffective counsel is the two-prong test articulated by the United States Supreme Court in Strickland v. Washington,110 as adopted in Delaware.111 The movant must show that (1) trial counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for trial counsel's unprofessional errors, the result of the proceeding would have been different.112 Failure to prove either prong will render the claim insufficient.113 Moreover, the Court shall dismiss entirely

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conclusory allegations of ineffective counsel.114 The movant must provide concrete allegations of prejudice, including specifying the nature of the prejudice and the adverse affects actually suffered.115

With respect to the first prong—the performance prong—the movant must overcome the strong presumption that counsel's conduct was professionally reasonable.116 To satisfy the performance prong, Reyes must assert specific allegations to establish Reyes Trial Counsel acted unreasonably as viewed against "prevailing professional norms."117 With respect to the second prong—the prejudice prong—cumulative error can satisfy the prejudice prong when it undermines confidence in the verdict.118

B. Reyes has established Ineffective Assistance of Counsel in the guilt phase of the Reyes Rockford Park Trial.

With no physical evidence linking Reyes to the Rockford Park Murders, it was essential for a fair trial that Reyes Trial Counsel "use all available impeachment evidence, and make timely and appropriate objections to the admission of evidence going to the heart of the State's case."119 Roderick Sterling's testimony was at the heart of the State's case against Reyes. This Court finds that the errors by Reyes

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Trial Counsel during the guilt phase of the Reyes Rockford Park Trial resulted in cumulative prejudice to Reyes.

1. Reyes Trial Counsel failed to establish that the information Sterling provided in the letter to Sterling's counsel was hearsay.

Under the DRE, hearsay is inadmissible unless otherwise provided by the DRE or law.120 It is well-established under the DRE that admissions by party opponents are considered non-hearsay.121 Admissions by a party include statements made by the party himself and "statements which he has manifested his adoption or belief in its truth."122

Sterling sent a letter to his counsel ("Sterling Letter") claiming that Reyes admitted his role in the Rockford Park Murders and Sterling testified about the Sterling Letter at the Reyes Rockford Park Trial. Sterling admitted at the Reyes Rockford Park Trial that Galindez wrote the Sterling Letter and that Sterling signed it.123 At the Reyes Rockford Park Trial, Reyes Trial Counsel objected to Sterling's testimony regarding the Sterling Letter on hearsay grounds.124 Overruling Reyes Trial Counsel's objection, the Trial Court found that even though Galindez and not Sterling wrote the Sterling Letter, Sterling adopted the

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contents of the Sterling Letter and, therefore, testimony regarding the Sterling Letter was admissible under the DRE.125

Although Reyes Trial Counsel properly objected to Sterling's testimony about the Sterling Letter, Reyes Trial Counsel did not present an accurate and thorough basis for the hearsay objection to the Trial Court. Specifically, even if the Trial Court agreed with the State that Sterling adopted the statements by Galindez by signing the Sterling Letter, the letter was hearsay. Particularly, Sterling testified at the Reyes Rockford Park Trial that the information within the Sterling Letter was learned by Sterling when Sterling overheard a conversation between Reyes and Galindez.126 However, in September 2008 when private investigators interviewed Sterling in Jamaica, Sterling stated that he learned details of the Rockford Park Murders from Galindez directly and not by overhearing a conversation between Galindez and Reyes.127 In other words, even though Sterling claimed at the Reyes Rockford Park Trial that he had personal knowledge of the contents of the Sterling Letter, Sterling did not have personal knowledge. Accordingly, the Sterling Letter was hearsay, but this argument was not presented for the Trial Court's consideration. This failure reflected inadequate trial preparation which was not reasonable performance under the circumstances

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especially, where, as here, Sterling was the only witness to link Reyes to the Rockford Park Murders.

Moreover, Sterling may have signified adoption of Galindez's writing, but adoptive admissions are only considered non-hearsay as to parties. Neither Galindez nor Sterling was a party in the Reyes Rockford Park Trial. Therefore, Reyes Trial Counsel should have presented argument that the Sterling Letter was hearsay if it was to be offered for the truth of its contents. Reyes Trial Counsel's failure to make this argument was unreasonable and Reyes has established the performance prong of Strickland.

2. Reyes Trial Counsel's failure to call Galindez as a witness was objectively unreasonable.

Reyes Trial Counsel was ineffective by failing to call Galindez as a witness. Only Galindez could have challenged Sterling's testimony, which was "the most significant testimony" against Reyes.128

Sterling claimed that Sterling overheard and understood conversations between Reyes and Galindez. However, if Galindez had testified, Galindez would have demonstrated that Sterling's claim was false because Sterling could not possibly have understood any conversation between Galindez and Reyes. At trial, Sterling testified that he did not speak Spanish and only understood Spanish "a

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little bit."129 Sterling further testified that he heard the conversation between Galindez and Reyes in English.130 However, in a 2012 affidavit, Galindez provided:

[] While I was serving my sentence [at Gander Hill], I was on the same pod as Luis Reyes. [] Luis Reyes and I talked about a lot of things while we were on the same pod. [] When I spoke to Luis Reyes, I spoke to him in Spanish because at the time, I spoke very little English. [] At the time, my cell[mate] was Roderick Sterling. [] Roderick Sterling did not speak Spanish.131


Reyes Trial Counsel fell below an objective standard of reasonableness when they failed to call Galindez as a witness. It was critical to challenge Sterling's claim that Sterling heard Reyes tell Galindez that Reyes participated in the Rockford Park Murders. Accordingly, Reyes has established the performance prong of Strickland.

3. Reyes Trial Counsel failed to request a missing evidence instruction.

The State never produced the Sterling Letter. Importantly, Reyes Trial Counsel did not request a missing evidence instruction for the Sterling Letter. Had Reyes Trial Counsel requested the instruction, the jury would have received the standard DeBerry instruction, providing that the jury is to assume the missing evidence is exculpatory for Reyes:

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In this case, the Court has determined that the State failed to create or to preserve certain evidence, which is material to the defense. The failure of the State to create or preserve such evidence entitles the Defendant to an inference that, if such evidence were available at trial, it would be exculpatory. This means that, for purposes of deciding this case, you are to assume that the missing evidence, had it been created or preserved, would not have incriminated the Defendant, but would have been favorable to his assertion of not guilty.132


Reyes Trial Counsel's performance fell below an objective standard of reasonableness and Reyes has established the performance prong of Strickland.

4. Reyes Trial Counsel failed to notify the Court that presenting Cabrera as a witness was critical to Reyes' defense.

Approximately one week before the Reyes Rockford Park Trial, Reyes Trial Counsel received a letter from Cabrera who wanted to help Reyes, but not at the expense of admitting his own guilt.133 Cabrera's counsel subsequently advised Reyes Trial Counsel that Cabrera would not be testifying on behalf of Reyes and if Cabrera was called, he would invoke his Fifth Amendment privilege.134

Cabrera was a critical witness for Reyes' defense. Had Cabrera been available as a witness, Cabrera would have testified that Reyes was not responsible for the Rockford Park Murders. Furthermore, Cabrera would have testified that a man named Neil Walker had committed the murders. Additionally, Cabrera would

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have offered details about an altercation that involved Walker, Cabrera, Saunders, and Rowe that gave a motive for Walker to commit the Rockford Park Murders.135

Under DRE 803(b)(3), statements against interest are those statements that "at the time of its making, so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true." Statements against interest are admissible when a declarant is unavailable to testify, which includes when a declarant has invoked his Fifth Amendment privilege against self-incrimination.136 Moreover, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."137

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Cabrera's proposed statements about Reyes' factual innocence met the standard under DRE 803(b)(4) because the statements exposed Cabrera to criminal liability and were contrary to Cabrera's penal interests.138 Nevertheless, the Trial Court did not rule on the admissibility of Cabrera's statements during the Reyes Rockford Park Trial because Reyes Trial Counsel did not even seek to admit the statements.139 This was objectively unreasonable performance. Accordingly, the performance prong of Strickland has been established.

5. The cumulative effect of Reyes Trial Counsel's errors in the guilt phase of the Reyes Rockford Park Trial resulted in prejudice to Reyes.

It was imperative for Reyes Trial Counsel to make timely objections and utilize appropriate impeachment and exculpatory evidence. The cumulative effect of Reyes Trial Counsel's errors during the guilt phase of the Reyes Rockford Park Trial resulted in prejudice to Reyes. Accordingly, Reyes' convictions must be vacated.

C. Reyes has established Ineffective Assistance of Counsel in the penalty phase of the Reyes Rockford Park Trial.

The Court finds that the errors by Reyes Trial Counsel in the penalty phase of the Reyes Rockford Park Trial resulted in cumulative prejudice to Reyes.

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1. Reyes Trial Counsel was ineffective for failing to limit the presentation to the jury of Reyes' role in the Otero murder.

Reyes Trial Counsel did not file a motion in limine, or otherwise argue, that evidence regarding Reyes' role in the Otero murder was inadmissible. As detailed above,140 Reyes explained to the jury during his allocution that he wanted to testify to profess his innocence during the guilt phase, but refrained from doing so to avoid presentation of his role in the Otero murder.141 While no evidence of Reyes' Otero conviction was admitted during the guilt phase of the Reyes Rockford Park Trial,142 and would have been inadmissible during the guilt phase,143 the State's penalty phase opening statement immediately began with the murder of Otero by Reyes.144 The State's presentation also included details of the Otero murder, including that Reyes physically held Otero down while Cabrera suffocated Otero with a plastic bag, then Cabrera and Reyes took Otero's body to New Jersey where they disposed of Otero's body in a dumpster and incinerated him.145 The State

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further explained to the jury that while Reyes could have received the death penalty for the death of Otero, he was actually only sentenced to twelve years because of a plea agreement.146 Then, Reyes Trial Counsel read a portion of the transcript from Reyes' Otero sentencing that included that Reyes participated in the Otero murder because of Cabrera's influence; Reyes fully cooperated in the investigation into Cabrera; Reyes gave a detailed confession to the murder of Otero; Otero's daughter gave a "wrenching" testimony of dreaming of walking down the aisle with her father; Otero's "charred remains" were found in New Jersey; and Reyes "physically was a principal in the murder by holding down Mr. Otero."147

"The record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant or the absence of any such prior criminal convictions and pleas shall also be admissible in evidence [during the penalty phase]."148 However, even though Reyes' conviction and guilty plea in connection with the Otero murder were likely admissible during the penalty phase, Reyes Trial Counsel should at least have made an effort to limit the presentation to the jury of highly prejudicial details of the Otero murder on the basis that the danger of unfair

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prejudice substantially outweighed the probative value.149 Accordingly, Reyes has established the performance and prejudice prongs of Strickland.

2. Reyes Trial Counsel's representation with respect to mitigation during the penalty phase of the Reyes Rockford Park Trial was ineffective.

Reyes Trial Counsel was ineffective under the prevailing professional norms because their mitigation presentation was based on an incomplete and inadequate investigation that failed to consider Reyes' youth and brain development. Moreover, Reyes Trial Counsel missed crucial opportunities to rebut the State's presentation of aggravating factors. Reyes Trial Counsel presented a one-dimensional, negative portrayal of Reyes in an effort to demonstrate to the jury that Reyes never had a chance and, therefore, the strategy was "to focus on, instead of the positive aspect of Luis Reyes, the negative things that happened to [Reyes] in his life."150 This presentation did not meet prevailing professional norms and was prejudicial to Reyes.

a. The Standard for Mitigation in a Capital Case

The United States Supreme Court has recognized that defense counsel in a capital case is "obligat[ed] to conduct a thorough investigation of the defendant's background."151 In 1989, the American Bar Association promulgated guidelines

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for defense attorneys in capital cases ("ABA Guidelines").152 Section 11.4.1 of the ABA Guidelines provides:

A. Counsel should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase of a capital trial. Both investigations should begin immediately upon counsel's entry into the case and should be pursued expeditiously.

B. The investigation for preparation of the guilt/innocence phase of the trial should be conducted regardless of any admission or statement by the client concerning facts constituting guilt.

C. The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.


The ABA Guidelines serve to "enumerate the minimal resources and practices necessary to provide effective assistance of counsel."153 Although failure to follow the ABA Guidelines is not tantamount to ineffective assistance of counsel per se;154 the ABA Guidelines set a standard for evaluation of Reyes Trial Counsel's representation regarding its mitigation investigation.155 According to the ABA Guidelines, defense counsels' "duty to investigate is not negated by the

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expressed desires of a client. Nor may [defense] counsel sit idly by, thinking that the investigation would be futile. The attorney must first evaluate the potential avenues of action and then advise the client on the merits of each."156 Moreover, the ABA Guidelines suggest that the mitigation investigation "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the [State]."157 The ABA Guidelines recommend obtaining the following sources for investigative information: all charging documents;158 information from the accused concerning the incident relating to the offense charged;159 and records—including but not limited to—medical records, birth records, school records, employment and training records or reports, family and social history, prior records, and religious or cultural influences.160 The ABA Guidelines further suggest obtaining the names of sources to contact for verification of the information in the collected records.161

b. Reyes Trial Counsel's mitigation strategy was not based on a reasonable mitigation strategy and instead was counterproductive by presenting Reyes as a man with inevitable propensity for violence.

Reyes Trial Counsel pursued a mitigation strategy that compared Reyes' background with the findings of a report issued in April 2000 by the Office of

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Juvenile Justice and Delinquency Prevention of the United States Department of Justice ("Youth Violence Report").162 The Youth Violence Report, Predictors of Youth Violence, identified risk factors that "confidently predict which youth would be prone to commit violent acts."163 The Youth Violence Report identified violence-predicting risk factors within each of five domains: individual factors, family factors, school factors, peer-related factors, and community and neighborhood factors.164 According to the Youth Violence Report "[t]he risk of violence is also compounded by the number of risk factors involved [with the youth]."165 Reyes Trial Counsel presented to the jury that the characteristics and life of Reyes closely matched the Youth Violence Report risk criteria, which demonstrated Reyes' potential for future violence.166 As Reyes Trial Counsel explained at the postconviction evidentiary hearing:

And I think we decided that . . . was going to be the strategy to say, do you know what, instead of saying what a good guy . . . [Reyes] was or how responsible [Reyes] was, that what we were focusing on was - - as I sit here, this is my recollection - - what a pretty lousy childhood [Reyes] had and how the cards were stacked against [Reyes]. And


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[Reyes] met most of the risk factors for that [Youth Violence Report], which would indicate tendency for violence or future violence.167


i. Dr. Caroline Burry's testimony focused on Reyes' amenability to violence and was based on a cursory investigation.

Reyes Trial Counsel hired Dr. Caroline Burry as a mitigation specialist to assist with the mitigation investigation. According to Dr. Burry, Reyes Trial Counsel specifically hired Dr. Burry to "determine the factors and events in [Reyes'] developmental, family, and/or social history which may have influenced his subsequent functioning as an adult."168 The majority of Dr. Burry's mitigation investigation consisted of twenty (20) hours of interviews.169 Specifically, in addition to interviewing Reyes, Dr. Burry interviewed: (1) Reyes' mother, Ruth Reyes, (2) Reyes' grandmother, Candida Reyes, (3) Reyes' aunts, Luz Diaz and (4) Damarias Reyes, (5) Reyes' girlfriend/fiancé, Elaine Santos, (6) Reyes' daughter, Desiree Reyes, and (7) Reyes' stepson, Raymond Sanchez.170 Dr. Burry also reviewed family photographs and Reyes' presentencing investigation report ("PSI Report"). Dr. Burry compiled her findings in an informal document titled Draft of Dr. Caroline Burry Personal Notes ("Dr. Burry Notes").171

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During the penalty phase, Dr. Burry testified on behalf of Reyes as an expert in family assessment. To explain her findings to the jury, Dr. Burry created a genogram172 that showed four generations of Reyes' family and identified repetitive themes throughout the family.173 Dr. Burry testified that Reyes' genogram contained repetitive themes of criminal history, substance abuse, and relationships Reyes' mother had with "substitute father figure[s]."174 Moreover, Dr. Burry testified that the father role in Reyes' life was later filled by Cabrera.175

Dr. Burry testified that, in her professional opinion, "Reyes' family history reveal[s] a number, in fact, a strikingly large number of risk factors predictive of violence."176 Indeed, Dr. Burry presented to the jury a number of charts that highlighted the factors indicated in the Youth Violence Report and the applicability of each factor as to Reyes. Dr. Burry testified that Reyes had been exposed to twenty out of twenty-seven risk factors identified by the Youth Violence Report. Specifically, Reyes experienced five out of the eight individual risk factors; all seven of the family risk factors; all four of the school risk factors; one of the three peer-related factors; and three out of the five community and neighborhood risk

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factors.177 Dr. Burry also elaborated on the risks associated with having a teen mother, noting that Reyes' mother was sixteen when she gave birth to Reyes.

Dr. Burry noted that a full assessment of a youth requires consideration of protective factors, which are factors that "may help to balance against risk[,]" because "even a child out of a negative background might still do well if he or she has a number of strong protective factors."178 In this case, Dr. Burry testified that out of four groups of factors, which each contain multiple protective factors, Reyes qualified for only two protective factors.179 Dr. Burry provided that it was her professional opinion "that Reyes had numerous risk factors and very few protective factors . . . particularly at the individual and family level, [and] that [Reyes] was at very high risk and did in fact become dangerous."180

In addition to this Court's concern with the counterproductive presentation of Dr. Burry's testimony that Reyes was seemingly inevitably violent, this Court is also concerned with the adequacy of Dr. Burry's mitigation investigation as it relates to the information obtained through a limited number of interviews from one narrow source - relatives. Even though Dr. Burry presented a genogram

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addressing four-generations of Reyes' family, Dr. Burry conducted interviews with only seven of Reyes' family members.

This Court is also concerned with the limited scope of records that Dr. Burry reviewed. Dr. Burry testified that she obtained her information to compile Reyes' social history from her interviews, the materials within Reyes' PSI Report, and family photographs.181 Dr. Burry wanted more records to review; she noted: "Information needed: 1. Criminal records on the entire family [and] 2. Medical records."182 Dr. Burry never obtained any of these records.183 Accordingly, the information presented was inadequate and insufficient.

Dr. Burry's narrow set of investigative sources is troubling. Dr. Burry was retained to complete a social history of Reyes; however, a mitigation investigation should be broader than social information. Mitigation investigations should include the discovery of "all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced[.]"184 It is ineffective for defense counsel to abandon an investigation after gathering "'rudimentary knowledge of [the defendant's] history from a narrow set of sources.'"185 This is because such a cursory mitigation investigation makes it

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impossible for defense counsel to make a fully informed decision with respect to a mitigation strategy.186

Moreover, "[i]n assessing the reasonableness of an attorney's investigation, however, a court must consider not only the . . . evidence already known to counsel but also whether the known evidence would lead a reasonable attorney to investigate further."187 Here, the information Dr. Burry began to uncover during her limited mitigation investigation—family drug abuse, physical and verbal abuse, and child abandonment—is exactly the type of information that would lead reasonable attorneys to pursue additional mitigation investigation.188 The failure to do so did not meet prevailing professional norms.

ii. Dr. Harris Finkelstein's testimony offered a rudimentary explanation for Reyes' behaviors and relied on Dr. Burry's cursory investigation and Reyes' unsubstantiated self-report.

Dr. Harris Finkelstein testified during the penalty phase as an expert in the field of psychology. Reyes Trial Counsel retained Dr. Finkelstein to "determine some type of insight into . . . what would contribute to [Reyes] doing the kinds of

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behaviors which at that point [Reyes] was accused of and later convicted of."189 Dr. Finkelstein testified as to his opinion on Reyes' psychological adjustment, which he explained as the "clear end point in terms of a person's behavior . . . . [and how to] understand those kinds of behaviors . . . . not necessarily excusing the behavior, [but] simply trying to explain it [to] reach a deeper level of understanding."190 In forming his opinion, Dr. Finkelstein performed a limited review, including an interview of Reyes for a total of four hours during which Dr. Finkelstein conducted projective psychological tests, and a review of a report prepared by court personnel in connection with sentencing, as well as other records kept by the various courts.191

Dr. Finkelstein explained that Reyes tends to think of himself in two divided psychological standpoints.192 According to Dr. Finkelstein, these two psychological standpoints are in conflict and, as a result of this conflict, Reyes became "dependent upon the validation and affirmation of other people who are important to him."193 As an example, Dr. Finkelstein explained that Reyes' success in high school wrestling earned him the support and recognition that fed into Reyes' positive self-concept and helped him make good choices. Dr.

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Finkelstein also explained that Reyes' home life and background pulled Reyes to his more withdrawn, hopeless, and despondent side.194

Finally, Dr. Finkelstein addressed Reyes' relationship with Cabrera to demonstrate the complexities of Reyes' divided psychological self-perception. According to Dr. Finkelstein, Cabrera provided Reyes with an important source of support and validation that Reyes desired but the "dilemma was when Cabrera started to give [Reyes] validation that was in part based on [Reyes] being able to win [Cabrera's] support by doing very, very awful things."195 Moreover, Dr. Finkelstein offered an opinion that Reyes possessed impulsive tendencies and may have suffered from Attention Deficit Hyperactivity Disorder ("ADHD"). Dr. Finkelstein explained that Reyes was someone with "narcissistic vulnerability" whose background created "somebody who is very much compromised in terms of their abilities to use other people [for support or advice], compromised in terms of decision-making abilities and [somebody] . . . very much in conflict over how to sustain good feelings about himself."196

Decisional law mandates that defense counsel's strategic decisions properly involve consideration of the defendant's own statements, actions, and

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preferences;197 however, the mitigation investigation should not be limited to the degree of information offered by the defendant as to his own past.198 Nevertheless, during cross-examination at the Reyes Rockford Park Trial, Dr. Finkelstein conceded that his testimony represented mere opinions as to Reyes' psychological adjustment more than true medical diagnoses because Dr. Finkelstein's conclusions were "based mostly on the defendant['s] data utilizing just a few selected points from history."199

Dr. Finkelstein further explained that he did not review any of Reyes' medical or school records, and that he did not have conversations with any of Reyes' family members. Rather, Dr. Finkelstein reviewed only a brief version of facts presented to him by Reyes Trial Counsel and Dr. Burry. Indeed, Dr. Finkelstein testified that he did not necessarily have full confidence that he received "all the matters about [Reyes'] factual history."200

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It was the responsibility of Reyes Trial Counsel to make this information available for a complete review. The failure to provide the information necessary for Dr. Finkelstein to act as an effective witness for Reyes was unreasonable.

iii. Reyes Trial Counsel failed to contact mitigation witnesses.

Reyes Trial Counsel presented only three family members on behalf of Reyes during the penalty phase. Candida Reyes, Reyes' grandmother, testified regarding her relationship with Reyes as well as Reyes' difficult childhood without a father and with a mother who was always partying.201 Elaine Santos, Reyes' fiancé/girlfriend and mother of Reyes' two children, testified that Reyes supported their family financially and emotionally and that Reyes had a close relationship with his children.202 Reyes' stepson, Raymond Sanchez, described his relationship with Reyes and said that he (Raymond) "would not feel good" if he could no longer see Reyes.203

Presentation of three family members was inadequate for the jury to have a complete picture of Reyes. Many additional witnesses were available to discuss Reyes' dysfunctional upbringing, as well as Reyes' leadership skills developed on the wrestling team and his ability to act as a role model for the younger wrestlers on the team.

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First, Reyes Trial Counsel failed to call George Lacsny, a teacher at Reyes' high school and Reyes' wrestling coach. At the postconviction evidentiary hearing, Mr. Lacsny testified that he does not think Reyes Trial Counsel ever contacted him to testify at the Reyes Rockford Park Trial because, as he stated, "If they did, I said I would."204 Second, Reyes Trial Counsel failed to call Victor Reyes (of no relation to defendant Reyes), Reyes' wrestling coach during the 1995-1996 winter wrestling season.205 Third, Reyes Trial Counsel failed to call Kathleen Corvelli-Reyes (Victor Reyes' wife and no relationship to Reyes) who became close with Reyes as a result of her husband's coaching. Although Ms. Corvelli met Reyes Trial Counsel before the Reyes Rockford Park Trial, they did not ask her to testify.206 At the evidentiary hearing, Ms. Corvelli stated that she would have testified on behalf of Reyes.207 Fourth, Reyes Trial Counsel failed to call Paul Perets, a teacher, band director, and timekeeper for the wresting team at A.I. DuPont High School. These additional witnesses would have allowed the jury an understanding of Reyes as a high school student and successful wrestler.

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At the postconviction evidentiary hearing, Reyes Trial Counsel maintained that some of Reyes' Otero supporters were not interviewed because the strategy was "to focus on, instead of the positive aspect of Luis Reyes, the negative things that happened to [Reyes] in his life."208 Reyes Trial Counsel did admit, however, that they "probably would have or should have" presented to the jury any and all credible admissible evidence that was supportive of their presentation of Reyes' dysfunctional childhood.209 Moreover, Reyes Trial Counsel admitted that Ms. Covelli should have been called as a mitigation witness and, in fact, there was no excuse not to do so.210

Reyes Trial Counsel did not meet prevailing professional norms and their strategy was not based on an adequate investigation. Under the applicable decisional law, the deference owed to Reyes Trial Counsel's mitigation strategy depends on the adequacy of the mitigation investigation supporting their strategy.211 A strategy that is based on a "'thorough investigation of law and facts relevant to plausible [mitigation] options [is] virtually unchallengeable[.]'"212 Here, Reyes Trial Counsel did not perform a thorough investigaiton.

Certain mitigation strategies may limit the scope of the mitigation investigation as long as defense counsel reasonably decides that "'particular

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investigations [are] unnecessary.'"213 A decision not to investigate further must be assessed for reasonableness in light of all the circumstances.214 Here, it was not reasonable to limit the investigation. For instance, in Williams v. Taylor, the United States Supreme Court concluded, under Strickland, that defense counsel could not justify its failure to uncover and present certain mitigation evidence as a strategic decision because defense counsel failed to "fulfill their obligation to conduct a thorough investigation of the defendant's background" to support such a strategy.215 The reasoning of Williams is applicable here and supports a finding that the investigation was inadequate.

Accordingly, the question for this Court is not whether Reyes Trial Counsel should have presented more mitigating evidence in support of its mitigation strategy.216 Rather, the question is whether reasonable judgment supported the extent of Reyes Trial Counsel's mitigation investigation. This Court finds that Reyes Trial Counsel's mitigation strategy was not reasonable, was not based on a proper investigation, and was counterproductive.

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c. The jury did not have the opportunity to consider mitigating evidence regarding Reyes' adolescent brain functioning.

There was extensive mitigating evidence that Reyes Trial Counsel would have uncovered if a proper mitigation investigation was undertaken.

i. Dr. Jonathan Mack determined Reyes had limited executive functions.
The bodies of Brandon Saunders and Vaughn Rowe were discovered in a wooded area of Rockford Park in Wilmington, Delaware, on January 21, 1996. Nearly four years later, on December 6, 1999, Luis Reyes ("Reyes") and Luis Cabrera ("Cabrera") were indicted as co-defendants for the murders of Saunders and Rowe ("Rockford Park Murders").1 The State sought the death penalty for both Reyes and Cabrera in connection with the Rockford Park Murders. Counsel was appointed for both defendants.2 The trials of Cabrera and Reyes were severed by the Trial Court.3A. Reyes Rockford Park Trial and Direct Appeal Cabrera was tried first and convicted of all counts by a jury, which recommended by a vote of 11-1 that the death sentence be imposed. Reyes' trial for the Rockford Park Murders took place thereafter ("Reyes Rockford Park Trial"): jury selection started on September 18, 2001; the guilt phase began on October 2, 2001; jury deliberations began on October 18, 2001; and, on October 19, 2001, the jury returned a verdict finding Reyes guilty of two counts of FirstPage 3 Degree Murder, two counts of Possession of a Firearm During the Commission of a Felony, and two counts of Conspiracy in the First Degree. During the guilt phase, Reyes moved for a mistrial on grounds of juror misconduct. The Trial Court denied the motion, concluding that the jurors were able to continue in an unbiased manner. The penalty phase began on October 23, 2001, and ended on October 26, 2001. The jury recommended that Reyes receive the death sentence for each of the two murders by a vote of 9-3. By decision and Order dated March 14, 2002, the Trial Court sentenced both Reyes and Cabrera to death.4 An automatic, direct appeal was filed with the Delaware Supreme Court,5 which addressed several issues: (i) the Trial Court's denial of individual voir dire during jury selection; (ii) the admission into evidence of Reyes' testimony during cross-examination in the Otero trial;6 (iii) the admission into evidence of two statements attributed to co-defendant Cabrera; (iv) the admission into evidence of testimony about the victims' state of mind on the night of the Rockford Park Murders; (v) alleged juror misconduct; (vi) whether jury deliberations were tainted by consideration of information not in evidence; (vii) the constitutionality of thePage 4 1991 Delaware Death Penalty Statute; and (viii) an independent review of the death sentence, including statutory aggravators, and whether the imposition of the death penalty was arbitrary or capricious. The Supreme Court affirmed Reyes' convictions and death sentences by Opinion and Order dated March 25, 2003.7B. Appointment of Rule 61 Counsel and Postconviction Motions By letter dated March 8, 2004, Reyes notified the Trial Court that Reyes intended to pursue postconviction relief and requested appointment of counsel. The Trial Court appointed counsel to represent Reyes in the postconviction proceedings ("Rule 61 Counsel").8 Reyes' Rule 61 motion filed in March 2004—amended in 2005, 2007, in 2009, and as briefed in 2014, and 2015—is now pending before this Court for decision.9Page 5 There was little physical evidence presented at the Reyes Rockford Park Trial that connected Reyes to the Rockford Park Murders. Rather, most of the evidence presented at the Reyes Rockford Park Trial tied Cabrera to the Rockford Park Murders. With little physical evidence linking Reyes to the Rockford Park Murders and with the possibility of a sentence of death, it was essential to a fair trial and sentencing that Reyes Trial Counsel use all available evidence and "make timely and appropriate objections to the admission of evidence going to the heart of the State's case."10 Therefore, it was especially important that Reyes Trial Counsel use all available exculpatory evidence and make appropriate objections to challenge the State's minimal case. This Court's review of the record leads the Court to conclude that mistakes were made that undermine this Court's confidence in the Reyes Rockford Park Trial conviction and sentencing. First, Reyes' decision to invoke his Fifth Amendment right during the guilt phase was not knowing, intelligent, and voluntary. Second, the Trial Court's delay in sentencing Cabrera rendered Cabrera unavailable as a witness in the Reyes Rockford Park Trial, denying access to important exculpatory evidence. Third, the testimony of Roderick Sterling was the most significant evidence against Reyes; however, it was highly suspect and because Sterling did not have personalPage 6 knowledge of the claims he made, Reyes was deprived of his Sixth Amendment Right to Confrontation. Fourth, Reyes has established various claims of ineffective assistance of counsel in both the guilt and penalty phases of the Reyes Rockford Park Trial that cumulatively prejudiced Reyes. There is a reasonable probability that the outcome of the Reyes Rockford Park Trial verdict and sentencing would have been different absent these errors. Therefore, Reyes' judgments of conviction and death sentence imposed by Order dated March 14, 2002 must be vacated.II. CONSIDERATION OF PROCEDURAL BARS Superior Court Criminal Rule 61 governs Reyes' motion for postconviction relief.11 Postconviction relief is a "collateral remedy which provides an avenue for upsetting judgments that have otherwise become final."12 To protect the finality of criminal convictions, the Court must consider the procedural requirements for relief set out under Rule 61(i) before addressing the merits of the motion.13 Rule 61(i)(1) bars a motion for postconviction relief if it is filed more than three years from the final judgment; this bar is not applicable as Reyes' first postconviction motion was filed in a timely manner.14 Rule 61(i)(2) barsPage 7 successive postconviction motions;15 this bar is not applicable as Reyes has not filed successive postconviction motions. Rule 61(i)(3) bars relief if the motion includes claims not asserted in prior proceedings leading to the final judgment; this bar will be addressed in the discussion of the claims to which it applies. Rule 61(i)(4) bars relief if the motion includes grounds for relief formerly adjudicated in any proceeding leading to the judgment of conviction, in an appeal, or in a postconviction proceeding; this bar will be addressed in the discussion of the claims to which it applies. This Court rejects the State's contention that certain claims set forth in the pending Rule 61 Motion should not be considered because those claims were not presented in prior Rule 61 Motions. This is Reyes' first Rule 61 Motion because the prior motions were not adjudicated. Moreover, the Trial Court allowed postconviction evidentiary hearings that further developed the record. There have been numerous changes in Reyes' postconviction counsel since Reyes first filed his Rule 61 Motion in 2004. The Trial Court permitted successive, amended, and supplemental motions to be filed on Reyes' behalf. To consider claims barred after the Court permitted amendments and supplements would render the expanded record superfluous, Rule 61 Counsel's efforts futile, and would violate Reyes' rights to full and fair consideration of whether Reyes' death penalty trial andPage 8 sentencing was conducted in a manner consistent with Reyes' due process rights. Accordingly, this Court will consider the claims presented in the briefing without regard to whether claims were presented in Rule 61 motions were not adjudicated. The procedural bars to postconviction relief under Rule 61(i)(3)16 can be overcome if the motion asserts a colorable claim that there has been a "miscarriage of justice" as the result of a constitutional violation that undermined the fundamental fairness of the proceedings.17 Likewise, the procedural bar under Rule 61(i)(4)18 can be overcome if consideration of the claim on its merits is warranted in the "interest of justice."19 Finally, Reyes' postconviction motion asserts multiple claims of constitutional violations, including claims of ineffective assistance of counsel. The Delaware Supreme Court has declined to hear claims of ineffective assistance of counsel on direct appeal.20 Therefore, the first opportunity for Reyes to assert such claims is in an application for postconviction relief.Page 9 III. THERE ARE COLORABLE CLAIMS OF MISCARRIAGEOF JUSTICE IN THE REYES ROCKFORD PARK TRIAL. Pursuant to Rule 61(i)(5), procedural bars to postconviction claims are not applicable to a "colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."21 Not every constitutional violation merits relief under the "miscarriage of justice" exception.22 Rather, a criminal defendant must establish a colorable claim of a constitutional violation, which requires the criminal defendant show "some credible evidence which takes the claim past the frivolous state."23 Moreover, pursuant to Rule 61(i)(4), the Court must address any postconviction claim that has been formerly adjudicated if "reconsideration is warranted in the interest of justice." A criminal defendant may trigger the interest of justice exception by presenting legal or factual developments that have emerged subsequent to the conviction.24 The interest of justice exception is narrow in scope; however, the Court must also preserve the purpose of Rule 61(i) procedural bars: achieving finality of judgments.25Page 10 Upon consideration of the entire record, this Court finds there was a miscarriage of justice pursuant to Rule 61(i)(5), that reconsideration of otherwise procedurally barred claims is warranted in the interest of justice pursuant to Rule 61(i)(4). Legal developments have emerged subsequent to the convictions, Reyes was deprived of his constitutional rights, and the integrity of the Reyes Rockford Park Trial was compromised.A. Reyes' Fifth Amendment rights were violated. 1. Reyes' decision to invoke his Fifth Amendment right at the guilt phase was not knowing, intelligent, and voluntary. The decision of whether or not to testify is a fundamental right.26 In making that decision, Reyes should have had the opportunity to consider that evidence regarding his involvement with the Otero murder would be admitted during the penalty phase as an aggravating factor. In his allocution during the penalty phase of the Reyes Rockford Park Trial, Reyes professed his innocence. Specifically, Reyes stated: "[O]n everything that I love and on the Word of God, I did not kill Brandon and Vaughn. I did not take their life. No matter how bad things may look, the evidence that was presented, I'm not the murderer of them two."27 Reyes explained to the jury that he had wanted to testify to profess hisPage 11 innocence during the guilt phase, but he did not do so because Reyes did not want the jury to hear about Reyes' role in the Otero murder.28 A criminal defendant alone must make the fundamental decision whether to testify on his own behalf.29 The decision regarding whether to testify must be made by a criminal defendant and cannot be made by defense counsel30 because such a choice "implicate[s] inherently personal rights which would call into question the fundamental fairness of the trial if made by anyone other than the defendant."31 Furthermore, waiver of the right to testify on one's own behalf must be knowing, intelligent, and voluntary.32 Whether a waiver of a constitutional right is knowing, intelligent, and voluntary depends upon the facts and circumstances of each case.33 A waiver of a constitutional right is knowing, intelligent, and voluntary "if the defendant is aware of the right in question and the likely consequences of deciding to forego that right."34 Although the Trial Court conducted an appropriate colloquy with Reyes and Reyes stated in open court that his decision was voluntary and not a product of aPage 12 threat or promise,35 Reyes' waiver of his right to testify was predicated on the mistaken understanding that, if he did not testify, then information regarding his involvement in the Otero murder would not be presented to the jury. During his allocution, Reyes explained: "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."36 Despite this very significant step taken by Reyes, i.e. not testifying in his own defense to profess his innocence, the jury heard about the Otero murder in great detail—not only from the State, but also from Reyes' own lawyers. For example, during the penalty phase, the State started its opening statement with a photograph of Otero and told the jury that the Rockford Park Murders were not the first time that Reyes had committed murder. The Otero murder was the central focus of the State's arguments in favor of death. In addition, Reyes Trial Counsel introduced the transcript from Reyes' sentencing for the Otero murder. Highlighting the prior murder, in introducing the transcript to the jury,37 Reyes Trial Counsel stated:Page 13 I'm going to skip the niceties. I'm going to get right to the heart of the matter and I want to tell you that this—and I'm going to tell you that this is the sentencing transcript of September 25th, 1988 of Luis Reyes who was being sentenced on a murder second charge for the murder of Fundador Otero.38 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, including by Reyes Trial Counsel. In making the decision not to testify, Reyes should have had the opportunity to consider that evidence regarding his involvement with the Otero murder would be admitted during the penalty phase as an aggravating factor. Accordingly, Reyes' decision was not knowing or intelligent because it was premised on a misunderstanding. The introduction of evidence about OteroPage 14 coupled with Reyes' expectation that such evidence would not be introduced seriously undermines whether Reyes' decision was knowing, intelligent, and voluntary. 2. The State's presentation of Reyes' prior testimony from another proceeding undermined Reyes' decision to invoke his Fifth Amendment right not to testify. When Reyes was interviewed by police regarding the Otero murder, Reyes told police that he made a statement to his girlfriend/fiancé, Elaine Santos, that one night Reyes was with Cabrera, someone came to Reyes' house, and Cabrera and Reyes went to the basement to beat him up. As part of Reyes' plea agreement in the Otero murder, Reyes agreed to testify as a witness against Cabrera in Cabrera's Otero murder trial in 1998. During Cabrera's Otero murder trial, the State questioned Reyes about his statement to Ms. Santos and Reyes admitted that he lied to Ms. Santos. Subsequently, during the guilt phase of the Reyes Rockford Park Trial, the State read into evidence (with a detective on the witness stand) this part of Reyes' trial testimony from Cabrera's Otero murder trial.39 It appears the State's purpose in introducing this testimony was twofold: (1) to suggest that the beating involved Saunders and Rowe and had taken place on the night of the Rockford Park Murders; and (2) to suggest to the jury that Reyes is a liar.Page 15 This was improper and objectionable. Although Reyes Trial Counsel objected to the reading in of Reyes' prior testimony,40 the Trial Court permitted Reyes' prior testimony to be read to the jury in the Reyes Rockford Park Trial. The Trial Court simply explained that the testimony was probative and determined there was no Delaware Rule of Evidence ("DRE") "403 issue that prohibit[ed] its admission."41 However, Reyes' former testimony was nevertheless inadmissible hearsay and undermined Reyes' choice to invoke his Fifth Amendment right not to testify. "Evidence of a person's character or a trait of his character is not admissible for the purpose of proving action in conformity therewith on a particular occasion."42 However, an exception to this rule includes "[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same."43 Moreover, a witness' credibility may be impeached by evidence in the form of reputation or opinion.44 Generally, a witness' credibility may not be impeached with extrinsic evidence of a specific instance of conduct.45 However, in the discretion of the Court, a specific instance of conduct related to the witness'Page 16 credibility may be "inquired into on cross-examination of the witness" if it concerns "the witness' character for truthfulness or untruthfulness" or it concerns "the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified."46 There is nothing in the record that suggests that Reyes Trial Counsel introduced evidence regarding the character trait for truthfulness or untruthfulness for Saunders, Rowe, or Reyes. Further, Reyes' testimony that was introduced was neither opinion nor reputation evidence as permitted under the DRE. Instead, it was a specific instance of conduct, which is inadmissible in the form of extrinsic evidence and can only be inquired into on cross-examination. Accordingly, evidence of Reyes' character trait for truthfulness was inadmissible because he was not a witness in the Reyes Rockford Park Trial because he invoked his Fifth Amendment right, and his character for truthfulness was not otherwise attacked. Moreover, even if Reyes' character for truthfulness was at issue, extrinsic evidence—the reading of the testimony into evidence and introducing it as an exhibit—was inadmissible under the DRE. Presentation of Reyes' own testimony from a prior proceeding undermined Reyes' decision not to testify as a witness against himself.Page 17 B. Cabrera was unavailable as a witness in the Reyes Rockford Park Trial because Cabrera was not promptly sentenced after his conviction. Cabrera's trial for the Rockford Park Murders took place in early 2001. The jury returned a verdict on February 11, 2001, finding Cabrera guilty of two counts of First Degree Murder, two counts of Conspiracy in the First Degree, and other offenses. The Cabrera penalty phase began on February 13, 2001, and ended on February 15, 2001. The jury recommended that Cabrera receive the death sentence for each of the Rockford Park Murders by a vote of 11-1. The Court postponed Cabrera's sentencing until the completion of the Reyes Rockford Park Trial. Ten months later, Reyes was convicted on October 19, 2001, and on October 26, 2001, the jury recommended that Reyes receive the death sentence for each of the Rockford Park Murders by a vote of 9-3. By decision and Order dated March 14, 2002, the Trial Court sentenced both Cabrera and Reyes to death.47 Although Cabrera's trial concluded more than eight months before the Reyes Rockford Park Trial, Cabrera had not been sentenced by the Trial Court at the time of Reyes' trial. Indeed, the Cabrera death sentence was imposed more than thirteen months after the jury recommended a death sentence for Cabrera. Because his sentencing was still pending, Cabrera was unavailable as a witness at the Reyes Rockford Park Trial.48Page 18 Had Cabrera testified as a witness at the Reyes Rockford Park Trial, Cabrera may have introduced reasonable doubt regarding Reyes' role in the Rockford Park Murders. Specifically, Reyes Trial Counsel met with Cabrera in March 2001 and Cabrera explained to Reyes Trial Counsel that Reyes was not responsible for the Rockford Park Murders, but instead that a man named Neil Walker had committed the murders. Cabrera detailed an altercation that involved Walker, Cabrera, Saunders, and Rowe that gave a motive for Walker to commit the Rockford Park Murders. However, instead of testifying on behalf of Reyes, Cabrera advised that, if called as a witness in the Reyes Rockford Park Trial, Cabrera would invoke his Fifth Amendment right because he had not yet been sentenced.49 Accordingly, a critical witness with exculpatory evidence for Reyes was unavailable because of the Trial Court's exercise of discretion as to the timing of Cabrera's sentencing. The Trial Court's delay in sentencing Cabrera rendered Cabrera unavailable as a witness in the Reyes Rockford Park Trial, denying access to exculpatory evidence and undermining the fairness of the trial.Page 19 C. The testimony offered by Sterling was highly suspect yet it was the most significant evidence linking Reyes to the Rockford Park Murders. There was very limited evidence presented at the Reyes Rockford Park Trial that linked Reyes to the Rockford Park Murders. Indeed, there was no physical evidence at all that connected Reyes to the Rockford Park Murders. Instead, most of the evidence presented linked the murders to Cabrera who had already been tried and convicted. Instead, the only evidence presented at Reyes Rockford Park Trial that linked Reyes to the Rockford Park Murders was the testimony of Roderick Sterling, a convicted sex offender who received a significant advantage by testifying against Reyes and who did not even have personal knowledge about the claims he made against Reyes. The Trial Court described this as "the most significant testimony" presented against Reyes by the State.50 1. The benefit offered to Sterling by the State in exchange for Sterling's testimony rendered Sterling's testimony unreliable. Sterling was arrested on May 2, 1997, for raping a seven-year-old child. Sterling was charged with two counts of Unlawful Sexual Intercourse First Degree and detained at Howard R. Young Correctional Institution ("HRYCI"). At that time, Reyes was also detained at HRYCI for the Otero murder and no one had yet been charged with the 1996 Rockford Park Murders.51Page 20 In June 1997, Sterling—with the assistance of his cellmate Ivan Galindez—sent a letter to Sterling's attorney in the child rape case claiming to have information in connection with the Rockford Park Murders. Specifically, Sterling claimed he had overheard Reyes admit Reyes was responsible for the Rockford Park Murders when Reyes was speaking to Galindez. On January 20, 1998, Sterling gave a statement to the police claiming that sometime between May 1997 and June 23, 1997, a conversation took place between Galindez and Reyes regarding the Rockford Park Murders, which Sterling claimed to have overheard. On December 1, 1998, Sterling pled guilty to one count of Unlawful Sexual Intercourse Second Degree and was sentenced by Order dated January 29, 1999, to twenty (20) years at Level V, suspended after ten (10) years at Level V, followed by ten (10) years of community-based supervision. On December 6, 1999, Cabrera and Reyes were indicted for the Rockford Park Murders. On September 14, 2001, four days before jury selection for the Reyes Rockford Park Trial, Sterling agreed to testify at the Reyes Rockford Park Trial about the alleged jailhouse confession by Reyes. Sterling received a huge benefit for his testimony against Reyes. Indeed, after Sterling's testimony in the Reyes Rockford Park Trial, the State joined Sterling's motion to withdraw his guilty plea to Unlawful Sexual Intercourse Second Degree. The motion was granted; Sterling withdrew his plea; the StatePage 21 offered Sterling a plea to the lesser offense of Unlawful Sexual Intercourse Third Degree, and recommended a sentence of ten (10) years at Level V, suspended immediately for time served for non-reporting probation at Level I, with the expectation that Sterling would promptly be deported to Jamaica. Therefore, in exchange for his testimony against Reyes, Sterling was released immediately from prison for time served on February 4, 2002, serving half the time to which he was originally sentenced. 2. Sterling did not have personal knowledge regarding the claims he made and, therefore, Reyes was deprived of his Sixth Amendment Right of Confrontation. Sterling testified inaccurately at the Reyes Rockford Park Trial that Sterling overheard a conversation at HRYCI between Reyes and Galindez and that, in that conversation, Reyes admitted to Galindez that Reyes killed Saunders and Rowe. In other words, when Sterling testified, he claimed to have personal knowledge regarding Reyes' alleged statements. However, in September 2008 when private investigators interviewed Sterling in Jamaica, Sterling claimed that he learned details of the Rockford Park Murders from Galindez and not from Reyes.52 Reyes had a Sixth Amendment right to confront the witness who testified against him.53Page 22 Because Sterling testified against Reyes and not Galindez, Reyes' Sixth Amendment right was violated. 3. The State violated Brady by failing to disclose impeachment evidence. The State violated Reyes' constitutional rights by failing to disclose impeachment evidence concerning Sterling. Specifically, the State knew that Sterling had a history of drug and alcohol use, convictions, and treatment, yet failed to provide this information to Reyes Trial Counsel. Reyes was prejudiced because without access to this impeachment evidence, Sterling could not properly be cross-examined with information that called into question Sterling's reliability. Under Brady, the State may not suppress evidence that is favorable to a defendant if the evidence is material to either guilt or punishment.54 Under Delaware law, there are three necessary elements for a finding that a Brady violation occurred: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued.55 Impeachment evidence falls within Brady because it is "'evidence favorable to an accused,' so that, if disclosed and used effectively, itPage 23 may make the difference between conviction and acquittal."56 Moreover, "[e]ffective cross-examination is essential to a defendant's right to a fair trial" because it is the "'principal means by which the believability of a witness and the truth of [his] testimony are tested.'"57 To reverse a conviction based on a Brady violation, a defendant must show that the undisclosed evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."58 The suppressed evidence must "create[] a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."59 Most recently, the Delaware Supreme Court addressed Brady violations in Starling v. State.60 The Court held that the State violated Brady when it "inaccurately describe[ed] the status of [] criminal charges" of a pivotal witness.61 Indeed, the witness identified Starling as the shooter involved in the deaths of two individuals.62 The Delaware Supreme Court identified the witness as "the State's main witness" whose credibility was at stake.63 Specifically, the State inaccurately represented to Starling's trial counsel that the witness' violation of probation andPage 24 outstanding capias were pending during trial; however, those pending legal matters had in fact been dismissed before Starling's trial.64 The reasoning of the Delaware Supreme Court in Starling is applicable here. Just as there was no physical evidence linking Reyes to the Rockford Park Murders, there was also "no physical evidence linking Starling to the crime" of which he was convicted.65 Like the identification witness about whom the Supreme Court expressed concerns, Roderick Sterling was the State's "main witness" in the Reyes Rockford Park Trial. In Starling, the State inaccurately described the pending criminal charges against the State's pivotal witness; similarly, in the Reyes Rockford Park Trial, the State failed to disclose Roderick Sterling's history of drug and alcohol abuse, convictions, and treatment. Reyes could have utilized this information to cast doubt on the credibility of Roderick Sterling as a witness. Cross-examination is critical to a fair trial.66D. There was a miscarriage of justice in the Reyes Rockford Park Trial. Viewing the Reyes Rockford Park Trial conviction and sentencing as a whole, Reyes' right to a fair trial was seriously undermined. There are colorable claims of miscarriage of justice in the Reyes Rockford Park Trial, and Reyes wasPage 25 deprived of his constitutional trial rights. Accordingly, because the integrity of the Reyes Rockford Park Trial was compromised, the conviction must be vacated.IV. REYES' ROCKFORD PARK SENTENCING DID NOT MEETCONSTITUTIONAL STANDARDS BECAUSE THERE WASINADEQUATE CONSIDERATION OF REYES' STATUS AS ANADOLESCENT AND HIS IMMATURE BRAIN DEVELOPMENT. When Fundador Otero was murdered, Reyes was just seventeen (17) years old. At the time, Reyes was a high school student and varsity member of the A.I. DuPont High School wrestling team. Reyes confessed to his role in Otero's murder, and agreed to testify against Cabrera.67 At Cabrera's Otero murder trial, Reyes admitted his role, but also explained his reluctance to participate in the crime. Reyes explained how he succumbed to pressure placed on him by Cabrera. In the Reyes Rockford Park Trial—although Reyes was only seventeen (17) years old at the time and despite his confession and cooperation with the police during the Otero investigation and trial—the State and the Trial Court emphasized Reyes' role in the Otero murder as the most significant non-statutory aggravating factor supporting the death penalty for the Rockford Park Murders. At the time of the Otero murder, Reyes was seventeen (17) years old. At the time of the Rockford Park Murders, Reyes was eighteen (18) years old.68Page 26 Although Reyes had reached the chronological age of adulthood, Reyes was a youthful offender at the time of the Rockford Park Murders. The weight attributed to the Otero crime, for purposes of the penalty phase for the Rockford Park Murders, is inconsistent with the constitutional standards established by the United States Supreme Court for youthful offenders, especially in consideration of the relationship between Cabrera and Reyes. The constitutional standards for sentencing of a youthful offender demand full consideration of Reyes' youth and brain development, as well as consideration of Cabrera's negative influence, particularly in a death penalty case. A. Constitutional jurisprudence pre-2001 In 1982, the United States Supreme Court decided Eddings v. Oklahoma,69 and held:[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults.70The Eddings Court noted: "'[D]uring the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment'Page 27 expected of adults."71 The conclusions reached in Eddings relied, in part, on task force reports dating back to 1967, which provided:Adolescents everywhere, from every walk of life, are often dangerous to themselves and to others. [A]dolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults. Moreover, youth crime as such is not exclusively the offender's fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America's youth.72 The Eddings Court explained that consideration of an adolescent defendant's background, as well as the defendant's mental and emotional development, did not serve to excuse the defendant's legal responsibility for the crime committed.73 Rather, such considerations are important because "just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing [for the crime of murder]."74 In 1988, the United States Supreme Court held in Thompson v. Oklahoma75 that "the execution of a person who was under 16 years of age at the time of his orPage 28 her offense" is unconstitutional.76 The Thompson Court's reasoning, rather than its holding, is of interest to this Court. Specifically, the decision in Thompson explained that distinctions between juveniles and adults abound in society and these distinctions should apply for purposes of sentencing young criminal defendants:Justice Powell has repeatedly reminded us of the importance of "the experience of mankind, as well as the long history of our law, recognizing that there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults. Examples of this distinction abound in our law: in contracts, in torts, in criminal law and procedure, in criminal sanctions and rehabilitation, and in the right to vote and to hold office."77* * * *It is generally agreed "that punishment should be directly related to the personal culpability of the criminal defendant." There is also broad agreement on the proposition that adolescents as a class are less mature and responsible than adults. We [have] stressed this difference in explaining the importance of treating the defendant's youth as a mitigating factor in capital cases . . . . Thus, the Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. The basis for this conclusion is too obvious to require extended explanation. Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.78Page 29 In 1993, the United States Supreme Court revisited the issue of youth as a mitigating factor in Johnson v. Texas.79 The Johnson Court made clear that "[t]here is no dispute that a defendant's youth is a relevant mitigating circumstance that must be within the effective reach of a capital sentencing jury if a death sentence is to meet the requirements of Lockett and Eddings."80 The Johnson Court held:A lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions. A sentencer in a capital case must be allowed to consider the mitigating qualities of youth in the course of its deliberations over the appropriate sentence.81The Johnson Court stressed the importance of presenting the qualities of youth as mitigating evidence:Even on a cold record, one cannot be unmoved by the testimony of petitioner's father urging that his son's actions were due in large part to his youth. It strains credulity to suppose that the jury would have viewed the evidence of petitioner's youth as outside its effective reach in answering the second special issue. The relevance of youth as a mitigating factor derives from the fact that the signature qualities ofPage 30 youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.82 Therefore, the constitutional precedent at the time of the Reyes Rockford Park Trial—as established in 1982, 1988, and 1993—required Reyes Trial Counsel to present the transient qualities of youth as mitigating evidence. The purpose of such a presentation was to advise a jury that the youthfulness of a criminal defendant is to be viewed as more than a chronological age. Rather, youthful criminal defendants, such as Reyes, are adolescents, susceptible to their environment, negative influences, and peer pressures but often without the fully developed brain and ability to appreciate the consequences for their reckless and dangerous behaviors. More importantly, evidence of youthfulness allows a jury to consider the fact that, as the youthful defendant ages, his emotional and mental intelligence will develop along with the wherewithal to reason, rationalize, and comprehend consequence. B. Roper v. Simons In 2005, the United States Supreme Court readdressed the presentation in a capital trial of youthfulness as mitigating evidence in Roper v. Simmons.83 The Roper Court recognized that capital punishment, the ultimate punishment, should be limited to a narrow category of defendants who commit the most heinous crimesPage 31 with extreme culpability. The Court held that a defendant under the age eighteen (18)—a juvenile—could not receive the death penalty even when the juvenile defendant commits a heinous crime.84 In reaching its conclusion, the Roper Court noted three general differences between juveniles and adults that render the death penalty unconstitutional for juveniles. First, according to scientific and sociological data, juveniles lack maturity and have an underdeveloped sense of responsibility.85 Second, "juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure."86 "This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment."87 Third, juveniles have not developed a sense of character as their personality traits are "more transitory, less fixed."88 The Roper Court summarized the significance of a juvenile's transient youth as follows:Page 32 The susceptibility of juveniles to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult." Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.89 The Roper decision was issued three years after the imposition of Reyes' death sentence. Despite the timing of Roper after the Reyes Rockford Park Trial, the decision is significant. First, the Roper decision is rooted in United States Supreme Court precedent and data from scientific and sociological studies that pre-date the Reyes Rockford Park Trial. Indeed, brain development—particularly development of the brain's executive functions—was already a topic of discussion and scientific research at the time of the Reyes Rockford Park Trial.90 Accordingly, while the Roper decision did establish a new constitutionally-based rule of law three years after the Reyes Rockford Park Trial, Roper did so, almostPage 33 entirely, based on information readily available to Reyes Trial Counsel in 2001. Second, this Court acknowledges that Reyes was eighteen (18) years old at the time of the Rockford Park Murders and, therefore, the rule of Roper does not strictly apply; nevertheless, as the Roper Court explained: "the qualities that distinguish juveniles from adults do not disappear when an individual turns 18."91 Reyes Trial Counsel should have explored and presented mitigating evidence concerning the qualities of Reyes' youth. Moreover, in its penalty phase presentation, the State emphasized Reyes' involvement in the Otero murder, which occurred when Reyes was only a seventeen (17) year old juvenile. More importantly, the Trial Court relied heavily on the Otero murder in sentencing Reyes to death, explaining that the "non-statutory aggravating circumstance [of Reyes' involvement in the Otero murder] weighs about as heavily as such circumstance can get."92 C. Evolving Standards Evidenced in Graham v. Florida and Miller v. Alabama The trend of recognizing the constitutional differences between youth and adulthood continued in the United States Supreme Court's 2010 decision in Graham v. Florida.93 Noting that juvenile offenders are less culpable than adults, the Graham Court held that it was unconstitutional to sentence a juvenile to lifePage 34 imprisonment for any crimes less serious than murder. Referencing Roper, the Graham Court explained that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence."94 The underlying message of Graham is consistent with the message of its decisional predecessors: "[j]uveniles are more capable of change than are adults, and their actions are less likely to be evidence of 'irretrievably depraved character' than are the actions of adults."95 In 2012, the United States Supreme Court decided Miller v. Alabama.96 Reiterating the notion that juveniles are "less deserving of the most severe punishments,"97 and relying on the aforementioned constitutional precedent, the Miller Court held it was unconstitutional to "require[] that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes."98 The reasoning and analysis in support of the rule of Miller, rather than the rule itself, is relevant to the matter pending before this Court. The Miller CourtPage 35 concluded that such a mandate—that all juveniles convicted of homicide receive life without a chance of parole—precludes the sentencer from considering critical factors related to the youthful offender even when imposing the harshest penalties. According to the Miller Court, such a mandate precluded consideration of factors such as: (1) the hallmark features of chronological age (immaturity, impetuosity, and the failure to appreciate consequence); (2) the family and home environment from which the youthful offender could not extricate himself; (3) the circumstances surrounding the homicide offense (including the offenders involvement and the effects of peer pressure); (4) the vulnerabilities to negative influence; (5) the features that distinguish adolescents from adulthood; and (6) the possibility of rehabilitation.99 The concept explained in Miller was not new, it was just simplified: children are different.100 In response to Graham and Miller, in 2013, the Delaware General Assembly amended Chapter 42 of Title 11 of the Delaware Code by inserting Section 4209A101 and amending Section 4204A102 to conform Delaware law to thePage 36 constitutional requirements stated by the United States Supreme Court, specifically the differences between juveniles and adult offenders for purposes of sentencing.103 D. Reyes Trial Counsel's mitigation presentation did not include adequate information regarding Reyes' youth as a mitigating factor and, therefore, did not meet constitutional standards. Reyes Trial Counsel did not present the transient qualities of Reyes' youth in accordance with constitutional demands. To the contrary, Reyes Trial Counsel emphasized Reyes' status as an irredeemable adult predisposed to violence, which Reyes was unable to avoid as an adult. Instead of presenting Reyes as a youthful offender who should be considered less culpable, Reyes Trial Counsel actually presented a so-called "mitigation" case that emphasized Reyes as a violent and dangerous person. In their penalty phase opening statement, Reyes Trial Counsel showed a picture of Reyes as a toddler—"Point A"—and pointing to Reyes, a convicted murder, in the courtroom—"Point B"—Reyes Trial Counsel explained to the jury that its penalty phase presentation would present evidence meant to "take [the jury] from point A to B. We will introduce this evidence to you for one purpose so youPage 37 can understand why Luis Reyes turned out the way he is."104 Reyes Trial Counsel explained its point A to B theory to the jury as follows:[T]he evidence is important to help you understand how a child at risk, [a] child like Luis Reyes is molded into a teenager who makes horrible wrong choices. You will hear from our witnesses that at certain important stages of his development Luis Reyes was exposed to certain behaviors by his family members that put him at high risk to commit violent acts . . . . You will hear Mr. Reyes lived in as home with domestic violence both physical and verbal.105 Additionally, in its closing statements of the penalty phase, Reyes Trial Counsel stated, "[t]here is only one truly important question in this case and that's how and why Luis Reyes developed the capacity to commit murder."106 Then Reyes Trial Counsel asked the jury, rhetorically, "How does a child, born like any other child, develop into a teenage murderer?"107 Finally, in one of the final comments for the jury's consideration, Reyes Trial Counsel told the jury: "Reyes' life was marked, measured, and set into place when he was still a child. [Reyes] was unable to escape from the tragic path of his life, though others have escaped, and he became a criminal like all the men who grew up in the Reyes household."108 The record demonstrates that Reyes Trial Counsel only discussed Reyes' "youth" to support a theme that Reyes had been "hardwired for violence" and became a violent and dangerous adult. Reyes was presented as someone who wasPage 38 fully developed and beyond the capacity for change. Reyes Trial Counsel did not offer even the possibility for change as Reyes matured chronologically, mentally, intelligently, and so on. Indeed, the jury never heard the idea that the capacities of a youthful offender are less than that of an adult and that youths are still developing and maturing even though these concepts are at the very heart of the jurisprudence demanding consideration of the qualities of youth as mitigating evidence. This Court is not suggesting that it is per se unreasonable for defense counsel to present only "negative" aspects as its mitigation strategy. It seems that the strategy of Reyes Trial Counsel was meant to avoid death for their client. Nevertheless, in light of constitutional demands, prevailing professional norms, the mitigation investigation conducted, and all of the relevant mitigating evidence in the record, including the postconviction record, the Court finds the presentation did not meet constitutional standards. This is especially because of the Trial Court's significant reliance on Reyes' involvement at age seventeen (17) in the Otero murder as well as Reyes' age at the time of the Rockford Park Murders. Reyes Trial Counsel failed to present the age-related characteristics of Reyes that weighed against Reyes' moral culpability for the Rockford Park Murders. Instead, Reyes Trial Counsel solely presented "negative" aspects of Reyes and his childhood and argued, essentially, that Reyes was born and raised to become thePage 39 violent man sitting before the jury. Such a mitigation strategy is entirely inconsistent with the well-known concepts of youth underlying our constitutional jurisprudence.109 Executing Reyes based on this presentation would violate constitutional standards. For these reasons, Reyes' death sentence must be vacated.V. INEFFECTIVE ASSISTANCE OF COUNSELA. Standard for Ineffective Assistance of Counsel Reyes claims that Reyes Trial Counsel provided ineffective legal assistance in violation of Reyes' rights under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Article 1, Section 7 of the Delaware Constitution. The standard used to evaluate claims of ineffective counsel is the two-prong test articulated by the United States Supreme Court in Strickland v. Washington,110 as adopted in Delaware.111 The movant must show that (1) trial counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for trial counsel's unprofessional errors, the result of the proceeding would have been different.112 Failure to prove either prong will render the claim insufficient.113 Moreover, the Court shall dismiss entirelyPage 40 conclusory allegations of ineffective counsel.114 The movant must provide concrete allegations of prejudice, including specifying the nature of the prejudice and the adverse affects actually suffered.115 With respect to the first prong—the performance prong—the movant must overcome the strong presumption that counsel's conduct was professionally reasonable.116 To satisfy the performance prong, Reyes must assert specific allegations to establish Reyes Trial Counsel acted unreasonably as viewed against "prevailing professional norms."117 With respect to the second prong—the prejudice prong—cumulative error can satisfy the prejudice prong when it undermines confidence in the verdict.118B. Reyes has established Ineffective Assistance of Counsel in the guilt phase of the Reyes Rockford Park Trial. With no physical evidence linking Reyes to the Rockford Park Murders, it was essential for a fair trial that Reyes Trial Counsel "use all available impeachment evidence, and make timely and appropriate objections to the admission of evidence going to the heart of the State's case."119 Roderick Sterling's testimony was at the heart of the State's case against Reyes. This Court finds that the errors by ReyesPage 41 Trial Counsel during the guilt phase of the Reyes Rockford Park Trial resulted in cumulative prejudice to Reyes. 1. Reyes Trial Counsel failed to establish that the information Sterling provided in the letter to Sterling's counsel was hearsay. Under the DRE, hearsay is inadmissible unless otherwise provided by the DRE or law.120 It is well-established under the DRE that admissions by party opponents are considered non-hearsay.121 Admissions by a party include statements made by the party himself and "statements which he has manifested his adoption or belief in its truth."122 Sterling sent a letter to his counsel ("Sterling Letter") claiming that Reyes admitted his role in the Rockford Park Murders and Sterling testified about the Sterling Letter at the Reyes Rockford Park Trial. Sterling admitted at the Reyes Rockford Park Trial that Galindez wrote the Sterling Letter and that Sterling signed it.123 At the Reyes Rockford Park Trial, Reyes Trial Counsel objected to Sterling's testimony regarding the Sterling Letter on hearsay grounds.124 Overruling Reyes Trial Counsel's objection, the Trial Court found that even though Galindez and not Sterling wrote the Sterling Letter, Sterling adopted thePage 42 contents of the Sterling Letter and, therefore, testimony regarding the Sterling Letter was admissible under the DRE.125 Although Reyes Trial Counsel properly objected to Sterling's testimony about the Sterling Letter, Reyes Trial Counsel did not present an accurate and thorough basis for the hearsay objection to the Trial Court. Specifically, even if the Trial Court agreed with the State that Sterling adopted the statements by Galindez by signing the Sterling Letter, the letter was hearsay. Particularly, Sterling testified at the Reyes Rockford Park Trial that the information within the Sterling Letter was learned by Sterling when Sterling overheard a conversation between Reyes and Galindez.126 However, in September 2008 when private investigators interviewed Sterling in Jamaica, Sterling stated that he learned details of the Rockford Park Murders from Galindez directly and not by overhearing a conversation between Galindez and Reyes.127 In other words, even though Sterling claimed at the Reyes Rockford Park Trial that he had personal knowledge of the contents of the Sterling Letter, Sterling did not have personal knowledge. Accordingly, the Sterling Letter was hearsay, but this argument was not presented for the Trial Court's consideration. This failure reflected inadequate trial preparation which was not reasonable performance under the circumstancesPage 43 especially, where, as here, Sterling was the only witness to link Reyes to the Rockford Park Murders. Moreover, Sterling may have signified adoption of Galindez's writing, but adoptive admissions are only considered non-hearsay as to parties. Neither Galindez nor Sterling was a party in the Reyes Rockford Park Trial. Therefore, Reyes Trial Counsel should have presented argument that the Sterling Letter was hearsay if it was to be offered for the truth of its contents. Reyes Trial Counsel's failure to make this argument was unreasonable and Reyes has established the performance prong of Strickland. 2. Reyes Trial Counsel's failure to call Galindez as a witness was objectively unreasonable. Reyes Trial Counsel was ineffective by failing to call Galindez as a witness. Only Galindez could have challenged Sterling's testimony, which was "the most significant testimony" against Reyes.128 Sterling claimed that Sterling overheard and understood conversations between Reyes and Galindez. However, if Galindez had testified, Galindez would have demonstrated that Sterling's claim was false because Sterling could not possibly have understood any conversation between Galindez and Reyes. At trial, Sterling testified that he did not speak Spanish and only understood Spanish "aPage 44 little bit."129 Sterling further testified that he heard the conversation between Galindez and Reyes in English.130 However, in a 2012 affidavit, Galindez provided:[] While I was serving my sentence [at Gander Hill], I was on the same pod as Luis Reyes. [] Luis Reyes and I talked about a lot of things while we were on the same pod. [] When I spoke to Luis Reyes, I spoke to him in Spanish because at the time, I spoke very little English. [] At the time, my cell[mate] was Roderick Sterling. [] Roderick Sterling did not speak Spanish.131 Reyes Trial Counsel fell below an objective standard of reasonableness when they failed to call Galindez as a witness. It was critical to challenge Sterling's claim that Sterling heard Reyes tell Galindez that Reyes participated in the Rockford Park Murders. Accordingly, Reyes has established the performance prong of Strickland. 3. Reyes Trial Counsel failed to request a missing evidence instruction. The State never produced the Sterling Letter. Importantly, Reyes Trial Counsel did not request a missing evidence instruction for the Sterling Letter. Had Reyes Trial Counsel requested the instruction, the jury would have received the standard DeBerry instruction, providing that the jury is to assume the missing evidence is exculpatory for Reyes:Page 45 In this case, the Court has determined that the State failed to create or to preserve certain evidence, which is material to the defense. The failure of the State to create or preserve such evidence entitles the Defendant to an inference that, if such evidence were available at trial, it would be exculpatory. This means that, for purposes of deciding this case, you are to assume that the missing evidence, had it been created or preserved, would not have incriminated the Defendant, but would have been favorable to his assertion of not guilty.132 Reyes Trial Counsel's performance fell below an objective standard of reasonableness and Reyes has established the performance prong of Strickland. 4. Reyes Trial Counsel failed to notify the Court that presenting Cabrera as a witness was critical to Reyes' defense. Approximately one week before the Reyes Rockford Park Trial, Reyes Trial Counsel received a letter from Cabrera who wanted to help Reyes, but not at the expense of admitting his own guilt.133 Cabrera's counsel subsequently advised Reyes Trial Counsel that Cabrera would not be testifying on behalf of Reyes and if Cabrera was called, he would invoke his Fifth Amendment privilege.134 Cabrera was a critical witness for Reyes' defense. Had Cabrera been available as a witness, Cabrera would have testified that Reyes was not responsible for the Rockford Park Murders. Furthermore, Cabrera would have testified that a man named Neil Walker had committed the murders. Additionally, Cabrera wouldPage 46 have offered details about an altercation that involved Walker, Cabrera, Saunders, and Rowe that gave a motive for Walker to commit the Rockford Park Murders.135 Under DRE 803(b)(3), statements against interest are those statements that "at the time of its making, so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true." Statements against interest are admissible when a declarant is unavailable to testify, which includes when a declarant has invoked his Fifth Amendment privilege against self-incrimination.136 Moreover, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."137Page 47 Cabrera's proposed statements about Reyes' factual innocence met the standard under DRE 803(b)(4) because the statements exposed Cabrera to criminal liability and were contrary to Cabrera's penal interests.138 Nevertheless, the Trial Court did not rule on the admissibility of Cabrera's statements during the Reyes Rockford Park Trial because Reyes Trial Counsel did not even seek to admit the statements.139 This was objectively unreasonable performance. Accordingly, the performance prong of Strickland has been established. 5. The cumulative effect of Reyes Trial Counsel's errors in the guilt phase of the Reyes Rockford Park Trial resulted in prejudice to Reyes. It was imperative for Reyes Trial Counsel to make timely objections and utilize appropriate impeachment and exculpatory evidence. The cumulative effect of Reyes Trial Counsel's errors during the guilt phase of the Reyes Rockford Park Trial resulted in prejudice to Reyes. Accordingly, Reyes' convictions must be vacated.C. Reyes has established Ineffective Assistance of Counsel in the penalty phase of the Reyes Rockford Park Trial. The Court finds that the errors by Reyes Trial Counsel in the penalty phase of the Reyes Rockford Park Trial resulted in cumulative prejudice to Reyes.Page 48 1. Reyes Trial Counsel was ineffective for failing to limit the presentation to the jury of Reyes' role in the Otero murder. Reyes Trial Counsel did not file a motion in limine, or otherwise argue, that evidence regarding Reyes' role in the Otero murder was inadmissible. As detailed above,140 Reyes explained to the jury during his allocution that he wanted to testify to profess his innocence during the guilt phase, but refrained from doing so to avoid presentation of his role in the Otero murder.141 While no evidence of Reyes' Otero conviction was admitted during the guilt phase of the Reyes Rockford Park Trial,142 and would have been inadmissible during the guilt phase,143 the State's penalty phase opening statement immediately began with the murder of Otero by Reyes.144 The State's presentation also included details of the Otero murder, including that Reyes physically held Otero down while Cabrera suffocated Otero with a plastic bag, then Cabrera and Reyes took Otero's body to New Jersey where they disposed of Otero's body in a dumpster and incinerated him.145 The StatePage 49 further explained to the jury that while Reyes could have received the death penalty for the death of Otero, he was actually only sentenced to twelve years because of a plea agreement.146 Then, Reyes Trial Counsel read a portion of the transcript from Reyes' Otero sentencing that included that Reyes participated in the Otero murder because of Cabrera's influence; Reyes fully cooperated in the investigation into Cabrera; Reyes gave a detailed confession to the murder of Otero; Otero's daughter gave a "wrenching" testimony of dreaming of walking down the aisle with her father; Otero's "charred remains" were found in New Jersey; and Reyes "physically was a principal in the murder by holding down Mr. Otero."147 "The record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant or the absence of any such prior criminal convictions and pleas shall also be admissible in evidence [during the penalty phase]."148 However, even though Reyes' conviction and guilty plea in connection with the Otero murder were likely admissible during the penalty phase, Reyes Trial Counsel should at least have made an effort to limit the presentation to the jury of highly prejudicial details of the Otero murder on the basis that the danger of unfairPage 50 prejudice substantially outweighed the probative value.149 Accordingly, Reyes has established the performance and prejudice prongs of Strickland. 2. Reyes Trial Counsel's representation with respect to mitigation during the penalty phase of the Reyes Rockford Park Trial was ineffective. Reyes Trial Counsel was ineffective under the prevailing professional norms because their mitigation presentation was based on an incomplete and inadequate investigation that failed to consider Reyes' youth and brain development. Moreover, Reyes Trial Counsel missed crucial opportunities to rebut the State's presentation of aggravating factors. Reyes Trial Counsel presented a one-dimensional, negative portrayal of Reyes in an effort to demonstrate to the jury that Reyes never had a chance and, therefore, the strategy was "to focus on, instead of the positive aspect of Luis Reyes, the negative things that happened to [Reyes] in his life."150 This presentation did not meet prevailing professional norms and was prejudicial to Reyes. a. The Standard for Mitigation in a Capital Case The United States Supreme Court has recognized that defense counsel in a capital case is "obligat[ed] to conduct a thorough investigation of the defendant's background."151 In 1989, the American Bar Association promulgated guidelinesPage 51 for defense attorneys in capital cases ("ABA Guidelines").152 Section 11.4.1 of the ABA Guidelines provides:A. Counsel should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase of a capital trial. Both investigations should begin immediately upon counsel's entry into the case and should be pursued expeditiously.B. The investigation for preparation of the guilt/innocence phase of the trial should be conducted regardless of any admission or statement by the client concerning facts constituting guilt.C. The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor. The ABA Guidelines serve to "enumerate the minimal resources and practices necessary to provide effective assistance of counsel."153 Although failure to follow the ABA Guidelines is not tantamount to ineffective assistance of counsel per se;154 the ABA Guidelines set a standard for evaluation of Reyes Trial Counsel's representation regarding its mitigation investigation.155 According to the ABA Guidelines, defense counsels' "duty to investigate is not negated by thePage 52 expressed desires of a client. Nor may [defense] counsel sit idly by, thinking that the investigation would be futile. The attorney must first evaluate the potential avenues of action and then advise the client on the merits of each."156 Moreover, the ABA Guidelines suggest that the mitigation investigation "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the [State]."157 The ABA Guidelines recommend obtaining the following sources for investigative information: all charging documents;158 information from the accused concerning the incident relating to the offense charged;159 and records—including but not limited to—medical records, birth records, school records, employment and training records or reports, family and social history, prior records, and religious or cultural influences.160 The ABA Guidelines further suggest obtaining the names of sources to contact for verification of the information in the collected records.161 b. Reyes Trial Counsel's mitigation strategy was not based on a reasonable mitigation strategy and instead was counterproductive by presenting Reyes as a man with inevitable propensity for violence. Reyes Trial Counsel pursued a mitigation strategy that compared Reyes' background with the findings of a report issued in April 2000 by the Office ofPage 53 Juvenile Justice and Delinquency Prevention of the United States Department of Justice ("Youth Violence Report").162 The Youth Violence Report, Predictors of Youth Violence, identified risk factors that "confidently predict which youth would be prone to commit violent acts."163 The Youth Violence Report identified violence-predicting risk factors within each of five domains: individual factors, family factors, school factors, peer-related factors, and community and neighborhood factors.164 According to the Youth Violence Report "[t]he risk of violence is also compounded by the number of risk factors involved [with the youth]."165 Reyes Trial Counsel presented to the jury that the characteristics and life of Reyes closely matched the Youth Violence Report risk criteria, which demonstrated Reyes' potential for future violence.166 As Reyes Trial Counsel explained at the postconviction evidentiary hearing:And I think we decided that . . . was going to be the strategy to say, do you know what, instead of saying what a good guy . . . [Reyes] was or how responsible [Reyes] was, that what we were focusing on was - - as I sit here, this is my recollection - - what a pretty lousy childhood [Reyes] had and how the cards were stacked against [Reyes]. AndPage 54 [Reyes] met most of the risk factors for that [Youth Violence Report], which would indicate tendency for violence or future violence.167 i. Dr. Caroline Burry's testimony focused on Reyes' amenability to violence and was based on a cursory investigation. Reyes Trial Counsel hired Dr. Caroline Burry as a mitigation specialist to assist with the mitigation investigation. According to Dr. Burry, Reyes Trial Counsel specifically hired Dr. Burry to "determine the factors and events in [Reyes'] developmental, family, and/or social history which may have influenced his subsequent functioning as an adult."168 The majority of Dr. Burry's mitigation investigation consisted of twenty (20) hours of interviews.169 Specifically, in addition to interviewing Reyes, Dr. Burry interviewed: (1) Reyes' mother, Ruth Reyes, (2) Reyes' grandmother, Candida Reyes, (3) Reyes' aunts, Luz Diaz and (4) Damarias Reyes, (5) Reyes' girlfriend/fiancé, Elaine Santos, (6) Reyes' daughter, Desiree Reyes, and (7) Reyes' stepson, Raymond Sanchez.170 Dr. Burry also reviewed family photographs and Reyes' presentencing investigation report ("PSI Report"). Dr. Burry compiled her findings in an informal document titled Draft of Dr. Caroline Burry Personal Notes ("Dr. Burry Notes").171Page 55 During the penalty phase, Dr. Burry testified on behalf of Reyes as an expert in family assessment. To explain her findings to the jury, Dr. Burry created a genogram172 that showed four generations of Reyes' family and identified repetitive themes throughout the family.173 Dr. Burry testified that Reyes' genogram contained repetitive themes of criminal history, substance abuse, and relationships Reyes' mother had with "substitute father figure[s]."174 Moreover, Dr. Burry testified that the father role in Reyes' life was later filled by Cabrera.175 Dr. Burry testified that, in her professional opinion, "Reyes' family history reveal[s] a number, in fact, a strikingly large number of risk factors predictive of violence."176 Indeed, Dr. Burry presented to the jury a number of charts that highlighted the factors indicated in the Youth Violence Report and the applicability of each factor as to Reyes. Dr. Burry testified that Reyes had been exposed to twenty out of twenty-seven risk factors identified by the Youth Violence Report. Specifically, Reyes experienced five out of the eight individual risk factors; all seven of the family risk factors; all four of the school risk factors; one of the three peer-related factors; and three out of the five community and neighborhood riskPage 56 factors.177 Dr. Burry also elaborated on the risks associated with having a teen mother, noting that Reyes' mother was sixteen when she gave birth to Reyes. Dr. Burry noted that a full assessment of a youth requires consideration of protective factors, which are factors that "may help to balance against risk[,]" because "even a child out of a negative background might still do well if he or she has a number of strong protective factors."178 In this case, Dr. Burry testified that out of four groups of factors, which each contain multiple protective factors, Reyes qualified for only two protective factors.179 Dr. Burry provided that it was her professional opinion "that Reyes had numerous risk factors and very few protective factors . . . particularly at the individual and family level, [and] that [Reyes] was at very high risk and did in fact become dangerous."180 In addition to this Court's concern with the counterproductive presentation of Dr. Burry's testimony that Reyes was seemingly inevitably violent, this Court is also concerned with the adequacy of Dr. Burry's mitigation investigation as it relates to the information obtained through a limited number of interviews from one narrow source - relatives. Even though Dr. Burry presented a genogramPage 57 addressing four-generations of Reyes' family, Dr. Burry conducted interviews with only seven of Reyes' family members. This Court is also concerned with the limited scope of records that Dr. Burry reviewed. Dr. Burry testified that she obtained her information to compile Reyes' social history from her interviews, the materials within Reyes' PSI Report, and family photographs.181 Dr. Burry wanted more records to review; she noted: "Information needed: 1. Criminal records on the entire family [and] 2. Medical records."182 Dr. Burry never obtained any of these records.183 Accordingly, the information presented was inadequate and insufficient. Dr. Burry's narrow set of investigative sources is troubling. Dr. Burry was retained to complete a social history of Reyes; however, a mitigation investigation should be broader than social information. Mitigation investigations should include the discovery of "all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced[.]"184 It is ineffective for defense counsel to abandon an investigation after gathering "'rudimentary knowledge of [the defendant's] history from a narrow set of sources.'"185 This is because such a cursory mitigation investigation makes itPage 58 impossible for defense counsel to make a fully informed decision with respect to a mitigation strategy.186 Moreover, "[i]n assessing the reasonableness of an attorney's investigation, however, a court must consider not only the . . . evidence already known to counsel but also whether the known evidence would lead a reasonable attorney to investigate further."187 Here, the information Dr. Burry began to uncover during her limited mitigation investigation—family drug abuse, physical and verbal abuse, and child abandonment—is exactly the type of information that would lead reasonable attorneys to pursue additional mitigation investigation.188 The failure to do so did not meet prevailing professional norms. ii. Dr. Harris Finkelstein's testimony offered a rudimentary explanation for Reyes' behaviors and relied on Dr. Burry's cursory investigation and Reyes' unsubstantiated self-report. Dr. Harris Finkelstein testified during the penalty phase as an expert in the field of psychology. Reyes Trial Counsel retained Dr. Finkelstein to "determine some type of insight into . . . what would contribute to [Reyes] doing the kinds ofPage 59 behaviors which at that point [Reyes] was accused of and later convicted of."189 Dr. Finkelstein testified as to his opinion on Reyes' psychological adjustment, which he explained as the "clear end point in terms of a person's behavior . . . . [and how to] understand those kinds of behaviors . . . . not necessarily excusing the behavior, [but] simply trying to explain it [to] reach a deeper level of understanding."190 In forming his opinion, Dr. Finkelstein performed a limited review, including an interview of Reyes for a total of four hours during which Dr. Finkelstein conducted projective psychological tests, and a review of a report prepared by court personnel in connection with sentencing, as well as other records kept by the various courts.191 Dr. Finkelstein explained that Reyes tends to think of himself in two divided psychological standpoints.192 According to Dr. Finkelstein, these two psychological standpoints are in conflict and, as a result of this conflict, Reyes became "dependent upon the validation and affirmation of other people who are important to him."193 As an example, Dr. Finkelstein explained that Reyes' success in high school wrestling earned him the support and recognition that fed into Reyes' positive self-concept and helped him make good choices. Dr.Page 60 Finkelstein also explained that Reyes' home life and background pulled Reyes to his more withdrawn, hopeless, and despondent side.194 Finally, Dr. Finkelstein addressed Reyes' relationship with Cabrera to demonstrate the complexities of Reyes' divided psychological self-perception. According to Dr. Finkelstein, Cabrera provided Reyes with an important source of support and validation that Reyes desired but the "dilemma was when Cabrera started to give [Reyes] validation that was in part based on [Reyes] being able to win [Cabrera's] support by doing very, very awful things."195 Moreover, Dr. Finkelstein offered an opinion that Reyes possessed impulsive tendencies and may have suffered from Attention Deficit Hyperactivity Disorder ("ADHD"). Dr. Finkelstein explained that Reyes was someone with "narcissistic vulnerability" whose background created "somebody who is very much compromised in terms of their abilities to use other people [for support or advice], compromised in terms of decision-making abilities and [somebody] . . . very much in conflict over how to sustain good feelings about himself."196 Decisional law mandates that defense counsel's strategic decisions properly involve consideration of the defendant's own statements, actions, andPage 61 preferences;197 however, the mitigation investigation should not be limited to the degree of information offered by the defendant as to his own past.198 Nevertheless, during cross-examination at the Reyes Rockford Park Trial, Dr. Finkelstein conceded that his testimony represented mere opinions as to Reyes' psychological adjustment more than true medical diagnoses because Dr. Finkelstein's conclusions were "based mostly on the defendant['s] data utilizing just a few selected points from history."199 Dr. Finkelstein further explained that he did not review any of Reyes' medical or school records, and that he did not have conversations with any of Reyes' family members. Rather, Dr. Finkelstein reviewed only a brief version of facts presented to him by Reyes Trial Counsel and Dr. Burry. Indeed, Dr. Finkelstein testified that he did not necessarily have full confidence that he received "all the matters about [Reyes'] factual history."200Page 62 It was the responsibility of Reyes Trial Counsel to make this information available for a complete review. The failure to provide the information necessary for Dr. Finkelstein to act as an effective witness for Reyes was unreasonable. iii. Reyes Trial Counsel failed to contact mitigation witnesses. Reyes Trial Counsel presented only three family members on behalf of Reyes during the penalty phase. Candida Reyes, Reyes' grandmother, testified regarding her relationship with Reyes as well as Reyes' difficult childhood without a father and with a mother who was always partying.201 Elaine Santos, Reyes' fiancé/girlfriend and mother of Reyes' two children, testified that Reyes supported their family financially and emotionally and that Reyes had a close relationship with his children.202 Reyes' stepson, Raymond Sanchez, described his relationship with Reyes and said that he (Raymond) "would not feel good" if he could no longer see Reyes.203 Presentation of three family members was inadequate for the jury to have a complete picture of Reyes. Many additional witnesses were available to discuss Reyes' dysfunctional upbringing, as well as Reyes' leadership skills developed on the wrestling team and his ability to act as a role model for the younger wrestlers on the team.Page 63 First, Reyes Trial Counsel failed to call George Lacsny, a teacher at Reyes' high school and Reyes' wrestling coach. At the postconviction evidentiary hearing, Mr. Lacsny testified that he does not think Reyes Trial Counsel ever contacted him to testify at the Reyes Rockford Park Trial because, as he stated, "If they did, I said I would."204 Second, Reyes Trial Counsel failed to call Victor Reyes (of no relation to defendant Reyes), Reyes' wrestling coach during the 1995-1996 winter wrestling season.205 Third, Reyes Trial Counsel failed to call Kathleen Corvelli-Reyes (Victor Reyes' wife and no relationship to Reyes) who became close with Reyes as a result of her husband's coaching. Although Ms. Corvelli met Reyes Trial Counsel before the Reyes Rockford Park Trial, they did not ask her to testify.206 At the evidentiary hearing, Ms. Corvelli stated that she would have testified on behalf of Reyes.207 Fourth, Reyes Trial Counsel failed to call Paul Perets, a teacher, band director, and timekeeper for the wresting team at A.I. DuPont High School. These additional witnesses would have allowed the jury an understanding of Reyes as a high school student and successful wrestler.Page 64 At the postconviction evidentiary hearing, Reyes Trial Counsel maintained that some of Reyes' Otero supporters were not interviewed because the strategy was "to focus on, instead of the positive aspect of Luis Reyes, the negative things that happened to [Reyes] in his life."208 Reyes Trial Counsel did admit, however, that they "probably would have or should have" presented to the jury any and all credible admissible evidence that was supportive of their presentation of Reyes' dysfunctional childhood.209 Moreover, Reyes Trial Counsel admitted that Ms. Covelli should have been called as a mitigation witness and, in fact, there was no excuse not to do so.210 Reyes Trial Counsel did not meet prevailing professional norms and their strategy was not based on an adequate investigation. Under the applicable decisional law, the deference owed to Reyes Trial Counsel's mitigation strategy depends on the adequacy of the mitigation investigation supporting their strategy.211 A strategy that is based on a "'thorough investigation of law and facts relevant to plausible [mitigation] options [is] virtually unchallengeable[.]'"212 Here, Reyes Trial Counsel did not perform a thorough investigaiton. Certain mitigation strategies may limit the scope of the mitigation investigation as long as defense counsel reasonably decides that "'particularPage 65 investigations [are] unnecessary.'"213 A decision not to investigate further must be assessed for reasonableness in light of all the circumstances.214 Here, it was not reasonable to limit the investigation. For instance, in Williams v. Taylor, the United States Supreme Court concluded, under Strickland, that defense counsel could not justify its failure to uncover and present certain mitigation evidence as a strategic decision because defense counsel failed to "fulfill their obligation to conduct a thorough investigation of the defendant's background" to support such a strategy.215 The reasoning of Williams is applicable here and supports a finding that the investigation was inadequate. Accordingly, the question for this Court is not whether Reyes Trial Counsel should have presented more mitigating evidence in support of its mitigation strategy.216 Rather, the question is whether reasonable judgment supported the extent of Reyes Trial Counsel's mitigation investigation. This Court finds that Reyes Trial Counsel's mitigation strategy was not reasonable, was not based on a proper investigation, and was counterproductive.Page 66 c. The jury did not have the opportunity to consider mitigating evidence regarding Reyes' adolescent brain functioning. There was extensive mitigating evidence that Reyes Trial Counsel would have uncovered if a proper mitigation investigation was undertaken. i. Dr. Jonathan Mack determined Reyes had limited executive functions. injection of a substance or substances in a lethal quantity sufficient to cause death and until such person sentenced to death is dead, and such execution procedure shall be determined and supervised by the Commissioner of the Department of Correction.283The Delaware Supreme Court has consistently upheld the constitutionality of the Delaware Death Statute.284 The Delaware Supreme Court has upheld the constitutionality of the Delaware Death Statute as applied to Reyes.285 Moreover, lethal injection as a form of execution does not violate the United States Constitution or the Delaware Constitution.286 The determination of whether the application of Delaware's Death Statute is unconstitutional because of an alleged national lethal injection drug shortage is notPage 91 for this Court to decide. To the extent that Reyes needs to reserve this argument for further proceedings, it is so reserved.

Outcome: This Court has determined that Reyes' constitutional rights were violated during the guilt and penalty phases of the Reyes Rockford Park Trial. Moreover, Reyes Trial Counsel was ineffective. The cumulative effect of Reyes Trial Counsel's errors leads this Court to conclude that "mistakes were made that undermine the confidence in the fairness of the [Reyes Rockford Park T]rial" and "there is a reasonable probability that the outcome of the [Reyes Rockford Park] [T]rial would have been different without the errors."287 Based on the record before the Court and consideration of decisional law, this Court finds that the fundamental legality, reliability, integrity, and fairness of the proceedings leading to Reyes' convictions and sentencing are not sound. Accordingly, the judgments of convictions and death sentenced imposed by Order dated March 14, 2002 must be vacated.

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