Holland v. State , 158 A.3d 452 ( 2017 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DJAVON P. HOLLAND, §
§ No. 44, 2016
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ C.r. ID No. 1404005828A
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
§
Submitted: January 11, 2017
Decided: March 22, 2017
Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.
Upon appeal from the Superior Court. REVERSED IN PART.
Benjamin S. Gifford IV, Esquire (Argued), Woloshin, Lynch & Natalie, P.A.,
Wilmington, Delaware, for Appellant.
Karen V. Sullivan, Esquire (Argued), Delaware Department of Justice,
Wilmington, Delaware, for Appellee.
STRINE, Chief Justice:
This appeal addresses the legal issues raised by the second of two criminal
trials over a single incident where Djavon Holland—the defendant—allegedly
burst into an apartment, brandished a gun, and demanded money. A brawl
unfolded in which Holland and the apartment‘s occupants—Vanessa Grier,
Nemesis Moore, and Semaj Deshields—were all injured. Holland was indicted
before the first trial for two counts of Assault First Degree along with twelve other
related charges. After trial, Holland was acquitted on both of the Assault First
Degree counts, but the jury was unable to reach a conclusion on the other charges.
The various issues in this appeal stem from the State‘s decision to reindict
Holland. The second indictment included both the charges on which the first jury
hung, and, for the first time, three counts of Attempted Robbery First Degree.
After the second trial, the jury convicted Holland of two of the three counts of
Attempted Robbery and the majority of the other charges from the second
indictment. On appeal, Holland makes a series of arguments assailing the new
charges in the second indictment, and attacks the second trial as a whole on Sixth
Amendment grounds.
Holland challenges the State‘s ability to subject him to the charges in the
second indictment that were not in the first indictment on three grounds. First, he
argues that the Superior Court incorrectly interpreted 11 Del. C. § 208. He
contends the statute in fact bars his indictment for Attempted Robbery. Second, he
argues that the State was estopped from proving all the elements of Attempted
Robbery of Moore in the second trial. Finally, and most convincingly, he argues
that the new charges constituted vindictive prosecution. We reject his first two
arguments but find favor with the third.
As to Holland‘s argument that 11 Del. C. § 208 barred the State from
indicting him on charges not in the first indictment, the Superior Court interpreted
§ 208(1)(a), which bars new prosecutions for offenses a defendant could have been
convicted of in an earlier prosecution that resulted in acquittal, to bar the second
indictment for offenses that were lesser included offenses of the counts previously
indicted and therefore that the defendant could have been convicted of at his first
trial. The Superior Court then applied § 208(1)(b)(1) to allow the new charges
because Attempted Robbery is not a lesser included charge of Assault, and
Attempted Robbery met § 208(1)(b)(1)‘s requirements that the new charge require
proof of facts not required by Assault and was intended to prevent a substantially
different sort of crime than Assault. The Superior Court‘s interpretation of the
statute makes more sense than Holland‘s interpretation. Holland‘s broader
interpretation of § 208(1)(a) would, in essence, bar any new indictment on charges
that conceivably could have been brought in the first indictment. That
interpretation undercuts the choices the General Assembly made in enacting § 208
and deprives § 208(1)(b)(1) of any real use.
2
We decline to consider Holland‘s estoppel argument because he did not
properly present it before the Superior Court and the Superior Court‘s failure to
separately assess the case for these estoppel claims was not plainly erroneous. If
we did take up Holland‘s argument that the State cannot prove all the elements of
Attempted Robbery because it is estopped from arguing that Holland caused
Moore injury or that Holland possessed a firearm, because Holland was acquitted
by the first jury of Assault in the First Degree and the related Possession of a
Firearm During the Commission of a Felony, though, we would do so within the
framework of 11 Del. C. § 208. Using the statute, we would find that Holland‘s
acquittals at the first trial did not bar his indictment for Attempted Robbery
because they fit within § 208(1)(b)(1)‘s exception and do not run afoul of § 208(2).
By contrast, we are persuaded by Holland‘s argument that the new
indictment for Attempted Robbery constitutes vindictive prosecution. The U.S.
Supreme Court has held that recharging a defendant with different charges after a
first, inconclusive trial poses a ―realistic likelihood‖ of vindictiveness and due
process ―requires that a defendant be freed of apprehension‖ of ―retaliatory
motivation‖ on the part of prosecutors.1 Thus, when the State brings different,
similarly weighty charges at a second trial, a defendant is entitled to a presumption
of vindictive prosecution and does not have to prove that a prosecutor was actually
1
Blackledge v. Perry, 417 U.S. 21, 25 (1974) (quoting North Carolina v. Pearce, 395 U.S. 711,
725 (1969)).
3
improperly motivated in bringing new charges. The State may overcome that
presumption by showing legitimate reasons why it was unable to present the new
charges at the first trial. Before and during the first trial, the State had abundant
evidence that Holland‘s likely motivation for entering the apartment was that he
believed Moore was a drug dealer who he could rob of cash and drugs. Even if
Moore testified he was not currently selling marijuana at the time Holland entered
the apartment, as the State expected he would at the first trial, the evidence
available to the State such as marijuana and baggies found in Moore‘s bedroom
after the melee, Moore‘s ―weed man‖ nickname, Holland‘s text messages
suggesting he was targeting Moore‘s apartment for drugs and drug money, and,
indeed, Moore‘s own statement after the incident that it was possible his apartment
was targeted because of his reputation, all still would have easily supported an
Attempted Robbery charge. Indeed, although the State contests that the issue was
fairly raised, it conceded at oral argument that the presumption of vindictive
prosecution would apply on these facts.
The State argues that the only reason it recharged Holland was that Moore‘s
testimony that he was a drug dealer at the time of the incident was the critical piece
establishing the necessary motive for Holland to rob the apartment. But, nothing in
the State‘s original theory at the first trial suggested Holland was just wandering
Moore‘s neighborhood randomly and just happened to pick Moore‘s apartment to
4
enter because the number on the door inspired violent thoughts. Rather, the
evidence in the State‘s possession all along supported the inference that Holland
knew Moore lived there, that Holland needed cash, and targeted Moore‘s
apartment because he believed Moore was a drug dealer who would have cash and
drugs on hand that could be stolen. Therefore, the State fails to show a material
change in the facts available to it to overcome the presumption of vindictive
prosecution. Because we find that the presumption of vindictive prosecution
applies, we reverse Holland‘s convictions for Attempted Robbery and Home
Invasion and the associated counts of Possession of a Firearm During the
Commission of a Felony, leaving only the convictions for charges from the first
trial standing.
Seeking total victory, Holland seeks to escape all of the convictions he
suffered after his second trial by contending that his waiver of his Sixth
Amendment right to counsel was not knowing, intelligent, and voluntary. We
disagree. His argument requires accepting both that the Superior Court always
must mechanistically go through a series of factors, which this Court has regularly
held to be examples rather than a mandatory checklist, and also that the Superior
Court committed reversible error when it, in part, relied on a colloquy from the
first trial—before the same judge, less than a year earlier—when it made its
finding in the second trial that Holland‘s waiver was knowing, intelligent, and
5
voluntary. When, as here, the Superior Court made its decision to allow Holland to
proceed pro se only after examining Holland on the majority of factors this Court
has found relevant and a number of other factors tailored to Holland‘s particular
motivation for representing himself, this Court declines to fault the Superior
Court‘s careful decision.
I.2
On April 8, 2014, Djavon Holland burst into Vanessa Grier‘s apartment.
Grier was at home with her two adult sons, Nemesis Moore and Semaj Deshields.
Moore had been living with his mother in the apartment for six to nine years before
the incident.3 Holland pointed a gun at Grier and, according to Grier, said ―[g]ive
me the money.‖4 Moore heard Holland enter and came into the room Grier,
Deshields, and Holland were in, and confronted Holland. This turned into a brawl
in which Holland shot his gun several times, injuring Deshields and Moore before
ultimately being subdued by Grier, Moore, and Deshields. ―Responding officers
observed that all of the parties were injured.‖5 Although Holland was arguably an
2
Unless otherwise noted, the factual background is taken from the record provided by the parties
in this appeal.
3
App. to Appellant‘s Opening Br. at A088 (Trial Tr., Jan. 23, 2015); id. at A066 (Trial Tr., Jan.
22, 2015) (Grier testified Moore lived with her for nine years); id. at A074 (Moore testified that
he lived with Grier for six to seven years).
4
Id. at A501 (Trial Tr., Sept. 17, 2015). Although the State only elicited this testimony at the
second trial, Grier refreshed her recollection using her statement to the police immediately after
the incident, a statement that would have been available to the State before the first trial. Id. On
appeal, Holland concedes that he demanded money. See Appellant‘s Opening Br. at 8.
5
Id. at 9.
6
armed home invader who sprung upon the occupants of Moore‘s apartment, the
defenders would seem to have likely been deemed the victors of the brawl if it
were an MMA title fight. Holland was found by police pinned down under a
dinner table, bleeding and moaning6 and, according to Holland, he suffered the
greatest injuries and longest hospital stay of the combatants. 7 This may help
explain the comparatively more merciful view the first jury later took of Holland‘s
actions.
The police found 103 grams of marijuana and baggies used for distributing
drugs in the apartment. They learned that Moore was known to sell marijuana and
was nicknamed the ―weed man.‖8 The police also recovered text messages from
Holland‘s cell phone indicating he was trying to get money—at least $1,5009—as
well as text messages from a friend of Holland‘s suggesting ―[t]omorrow might be
better. That way, you could catch . . . the order coming . . . out.‖10 As part of their
investigation, the police interviewed Moore, who told them he sold marijuana in
6
App. to Appellant‘s Opening Br. at A155–57 (Trial Tr., Jan. 26, 2015); id. at A173–74; see also
id. at A069–70 (Trial Tr., Jan. 22, 2015), id. at A097–98 (Trial Tr., Jan. 23, 2015), id. at A137–
39.
7
Id. at A247 (Trial Tr., Jan. 27, 2015 (Afternoon Session)).
8
App. to Appellant‘s Opening Br. at A031 (Search Warrant, April 9, 2014). Moore
acknowledged he was aware of the nickname. Id. at A086 (Trial Tr., Jan. 23, 2015).
9
Id. at A550 (Trial Tr., Sept. 18, 2015). Although the text messages do not appear to have been
used as evidence at Holland‘s first trial, they were obtained as part of the original investigation.
Id. at A544, A546.
10
Id. at A551.
7
the past but no longer.11 Moore also maintained in his statement that it was
possible Holland entered the apartment because he knew Moore had been a drug
dealer.12
On July 21, 2014, Holland was indicted for:
 Home Invasion (predicate crime: Assault First Degree and/or
Assault Second Degree)
 Assault First Degree as to Nemesis Moore
 Assault First Degree as to Semaj Deshields
 Assault Second Degree as to Vanessa Grier
 Aggravated Menacing as to Vanessa Grier
 Wearing a Disguise During the Commission of a Felony
 Possession of a Firearm by a Person Prohibited
 Possession of Ammunition by a Person Prohibited
 Misdemeanor Criminal Mischief
 Five counts of Possession of a Firearm During the Commission
of a Felony
On the morning jury selection was supposed to begin, Holland requested new
counsel because he was dissatisfied with his public defender. The Superior Court
determined that a continuance for new counsel was not warranted because the
request was made on the day of trial and Holland‘s lawyer was otherwise ready to
proceed.13 Instead, the Superior Court asked Holland if he wanted to waive his
right to counsel rather than continue with his public defender. The Superior Court
outlined the framework for ensuring that defendants make the choice to waive their
right to counsel and represent themselves knowingly, intelligently, and voluntarily,
11
Id. at A084 (Trial Tr., Jan. 23, 2015); id. at A437 (Trial Tr., Sept. 16, 2015).
12
Id. at A090 (Trial Tr., Jan. 23, 2015).
13
Id. at A044 (Trial Tr., Jan. 21, 2015).
8
invoking the ―searching inquiry‖ framework from the U.S. Third Circuit Court of
Appeals decision in United States v. Welty.14 That framework has been adopted by
this Court in cases such as Briscoe v. State.15 Using that framework, the Superior
Court asked Holland a series of questions about his understanding of the case,
experience with the criminal justice system, and education, among other things.16
Based on that colloquy, the Superior Court confirmed that Holland could proceed
pro se and appointed Holland‘s lawyer standby counsel.
At trial, contrary to his earlier statement to the police that he no longer sold
marijuana, Moore testified on cross examination that at the time of the incident he
made money by selling marijuana.17 The State later asserted that ―[u]p until the
eve of trial, the State was not aware that [Moore] was a drug dealer at the time‖ of
the incident.18 After trial, the jury acquitted Holland of Assault First Degree as to
Moore and Deshields and the related Possession of a Firearm During the
Commission of a Felony charges. The jury could not reach a verdict on the
remaining charges.
After the first trial, the State presented the incident to a new grand jury and
that grand jury indicted Holland for:
14
United States v. Welty, 674 F.2d 185 (3d Cir. 1982).
15
606 A.2d 103, 109 (Del. 1992).
16
See infra Section IV.B. of this Opinion.
17
App. to Appellant‘s Opening Br. at A084, A092 (Trial Tr., Jan. 23, 2015).
18
Id. at A382 (State‘s Response to Defendant‘s Motion to Dismiss, June 1, 2015).
9
 Home Invasion (predicate crime: Attempted Robbery First
Degree)
 Attempted Robbery First Degree as to Nemesis Moore
 Attempted Robbery First Degree as to Semaj Deshields
 Attempted Robbery First Degree as to Vanessa Grier
 Assault Second Degree as to Vanessa Grier
 Wearing a Disguise During the Commission of a Felony
 Possession of a Firearm by a Person Prohibited
 Possession of Ammunition by a Person Prohibited
 Criminal Mischief
 Five counts of Possession of a Firearm During the Commission
of a Felony
Before the second trial began, Holland wrote two letters, one to his attorney and
one to the Superior Court, arguing that the new prosecution was ―vindictive.‖19
Separately, Holland moved to dismiss the charges for Home Invasion, Attempted
Robbery, and related Possession of a Firearm During the Commission of a Felony
charges on the basis of the prohibition on double jeopardy and 11 Del. C. § 208.
The Superior Court denied the motion.
On the morning of jury selection for the second trial, Holland indicated that
he wanted to represent himself. Holland and his attorney—Anthony Figliola—
indicated this was specifically related to Figliola‘s advice that Holland testify.
Holland believed that conducting his own defense was a preferable substitute to
19
Id. at A408–09 (Pro Se Letter, Sept. 8, 2015); id. at A413 (Pro Se Letter, Sept. 14, 2015); see
also infra Section II.C.2 of this Opinion.
10
taking the stand, based on his experience conducting his own defense in the first
trial. The Superior Court then examined Holland about his choice.20
The Superior Court concluded that Holland‘s waiver of his right to counsel
had been knowing, intelligent, and voluntary and proceeded to jury selection and
pretrial motions. Holland, through Figliola, had made a motion in limine to
exclude evidence of injury to Deshields and Moore,21 as well as a motion to
reargue the Superior Court‘s decision that the State could argue, without
implicating the Double Jeopardy Clause, that Holland possessed a firearm even
though he had been found not guilty of the Assault charges.22 The Superior Court
also invited Holland to ―make any argument you wish over and beyond what was
set forth in Mr. Figliola‘s motion.‖23 Holland contested his second indictment on
grounds the prosecutors ―lied.‖24 The Superior Court denied Holland‘s motion for
reargument as well as the motion in limine.25
Holland proceeded to represent himself at trial. The State argued that
Holland wanted to rob the apartment because he ―knew Nemesis Moore was a drug
dealer and [Holland] knew [Moore] sold marijuana for a living, and [Holland]
20
See infra Section IV.B of this Opinion.
21
Motion in Limine to Exclude Evidence of Injury, Sept. 4, 2015, State v. Holland, Cr. I.D. No.
1404005828A.
22
App. to Appellant‘s Opening Br. at A403 (Motion to Reargue, Sept. 4, 2015).
23
Id. at A425 (Trial Tr., Sept. 15, 2015).
24
Id. at A426.
25
Id.
11
knew that around the neighborhood [Moore‘s] name was ‗the weed man.‘‖26 After
trial, the jury found Holland guilty of all charges except for Attempted Robbery of
Deshields and the related Possession of a Firearm During the Commission of a
Felony, and Wearing a Disguise During the Commission of a Felony.
II.
Holland argues that his second indictment on charges of Attempted Robbery
was flawed in three ways. He argues both that the Superior Court incorrectly
interpreted 11 Del. C. § 208 because the statute in fact bars Holland‘s indictment
for Attempted Robbery, and also that the State was estopped from arguing in the
second trial that Holland‘s behavior met all the elements of Attempted Robbery of
Moore. Most compellingly, he argues that the second indictment for Attempted
Robbery constituted vindictive prosecution.
A.
We reject Holland‘s argument that the Superior Court erred in its statutory
interpretation when it concluded that 11 Del. C. § 208 did not bar the charges of
Attempted Robbery of Moore and Deshields.27 The relevant part of the statute
states:
Although a prosecution is for a violation of a different statutory
provision or is based on different facts, it is barred by a former
26
Id. at A577 (Trial Tr., Sept. 21, 2015).
27
Issues of statutory interpretation are reviewed de novo. Fountain v. State, 139 A.3d 837, 840
(Del. 2016); CML V, LLC v. Bax, 28 A.3d 1037, 1040 (Del. 2011).
12
prosecution in a court having jurisdiction over the subject matter of
the second prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal which has
not subsequently been set aside or in a conviction as defined in
§ 207 of this title and the subsequent prosecution is for:
a. Any offense of which the defendant could have been
convicted on the first prosecution; or
b. The same conduct, unless:
1. The offense for which the defendant is
subsequently prosecuted requires proof of a fact
not required by the former offense and the law
defining each of the offenses is intended to
prevent a substantially different harm or evil; or
2. The second offense was not consummated when
the former trial began.28
This language is almost identical to the Model Penal Code provision.29 Holland
argued before the Superior Court that § 208(1)(a) barred the State from indicting
him for Attempted Robbery of Moore and Deshields, along with the accompanying
Possession of a Firearm During the Commission of a Felony charges because he
had been acquitted of the Assault charges against them.30 Before the Superior
Court and this Court, Holland maintains that § 208(1)(a)‘s phrase ―any offense of
which the defendant could have been convicted on the first prosecution‖ bars any
offense that could have been indicted in the first prosecution, but was not. In
28
11 Del. C. § 208.
29
MODEL PENAL CODE § 1.09.
30
Appellant‘s Opening Br. Ex. A at 5. Holland did not make that argument as to the Attempted
Robbery of Grier, though. Id. at 7.
13
contrast, the State argued that § 208(1)(b) allows the new charges because they are
different offenses. The Superior Court agreed with the State, observing that
―[b]ecause the State did not originally indict on those counts, Defendant could not
have been convicted of those offenses under the original indictment, and thus he
cannot now claim the protection of subsection (1)(a).‖31 Now, Holland urges this
Court to find that the Superior Court incorrectly interpreted § 208.
But, the Superior Court‘s interpretation of the statute is the one that better
gives meaning to each part of the statute in the fashion that the General Assembly
adopted it. One of § 208‘s handful of deviations from the Model Penal Code text
is relevant here. The Model Penal Code‘s § 1.09, which § 208 generally tracks,
includes another provision, which says a prosecution is barred if it is for ―any
offense for which the defendant should have been tried on the first prosecution.‖32
Delaware‘s statute, though, omits that provision. Thus, Holland‘s interpretation
would require this Court to read into the statute words explicitly excluded by the
General Assembly.
Additionally, the Delaware Criminal Code with Commentary does not offer
Holland‘s interpretation the support he claims it does when it offers lesser included
offenses as an example of what § 208(1)(a) bars.33 Holland argues that, because
31
Id. at 6.
32
MODEL PENAL CODE § 1.09 (emphasis added).
33
DELAWARE CRIMINAL CODE WITH COMMENTARIES 19 (1973).
14
lesser included offenses are offered as an example, they are not the exclusive set of
offenses barred by § 208(1)(a) and, therefore, his circumstance is also barred.
Even though he is right to observe lesser included offenses are an example rather
than a complete set, it does not follow that his situation must therefore be included.
Section 208(1)(a)‘s language could easily cover other situations than Holland‘s, for
example, a defendant being recharged on charges for which the defendant had
actually been indicted in the first case.34 This illustrates that other examples exist,
which don‘t suffer from the problems associated with Holland‘s expansive
interpretation.35
Furthermore, when Holland argues that § 208(1)(a) covers anything that
could have been conceivably included in an initial indictment, he doesn‘t account
for what happens to (1)(b). The relevant part of § 208(1)(b) states that a new
prosecution is not barred if ―[t]he offense for which the defendant is subsequently
prosecuted requires proof of a fact not required by the former offense and the law
defining each of the offenses is intended to prevent a substantially different harm
34
See Oral Argument at 22:34, Holland v. State, No. 44, 2016 (Del. Jan. 11, 2017),
https://livestream.com/DelawareSupremeCourt/events/6861166/videos/146496660.
35
The Model Penal Code Commentaries also undercut Holland‘s interpretation. When they
address what Delaware adopted as § 208(1)(a), the Commentaries observe that the section is
meant to ―reach those offenses for which the defendant was in actual jeopardy of conviction on
the first prosecution‖ and observe that lesser included offenses, attempt or solicitation of offenses
initially charged, or offenses that differ ―only in that a less serious injury or risk of injury or a
lesser kind of culpability suffices to establish‖ the offenses all fall within § 208(1)(a)‘s scope. 1
MODEL PENAL CODE COMMENTARIES 157 (1985). This explanation is at odds with Holland‘s
broad interpretation of (1)(a).
15
or evil.‖36 If (1)(a) is actually as broad as Holland argues, it is hard to see how
there could be any charge that would fit under (1)(b)(1) because (1)(b)(1) plainly
allows new charges brought on the same conduct when the charges meet certain
criteria.
Finally, Holland argues that the Superior Court‘s reading makes parts of
§ 208 incompatible with § 207, which bars prosecutions for ―a violation of the
same statutory provisions and . . . based upon the same facts as a former
prosecution‖ under certain circumstances.37 Although the two sections are closely
related, they are not redundant under the Superior Court‘s interpretation. Unlike
§ 207, which deals with a prosecution on the same facts and same statutory
provision, § 208(1)(a) addresses a situation where a defendant is being prosecuted
on different facts, but for an offense that was part of the events for which the
defendant was indicted for in the first prosecution. Thus, even under the Superior
Court‘s reading, the two sections offer subtly different protections for defendants.
For these reasons, we find the Superior Court properly found that § 208 did not bar
Holland‘s indictment for Attempted Robbery.
B.
We also reject Holland‘s argument that the State is estopped from proving
all the elements of Attempted Robbery of Moore because Holland was acquitted by
36
11 Del. C. § 208 (1)(b)(1).
37
Id. § 207.
16
the first jury of Assault in the First Degree and the related Possession of a Firearm
During the Commission of a Felony.38 Holland did not raise this argument
explicitly before the Superior Court and so this Court reviews the Superior Court‘s
failure to separately assess the case for these estoppel claims for plain error.39
If this Court considered Holland‘s estoppel argument, it would not embrace
it, much less find a plain error on the part of the Superior Court in not proactively
considering and accepting the theory. Although Holland frames his argument in
terms of general principles of estoppel,40 this Court has recognized that, for
criminal prosecutions, the ―General Assembly has codified the collateral estoppel
doctrine in Title 11, Section 208 of the Delaware Code,‖41 and so this Court
considers the estoppel claim within that framework. This is supported by the
Model Penal Code Commentaries, which observe that the section of the Model
38
Holland only argues this point on the charge related to Moore because he was acquitted of
Attempted Robbery of Deshields.
39
―Only questions fairly presented to the trial court may be presented for review; provided,
however that when the interests of justice so require, the Court may consider and determine any
question not so presented.‖ Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986). If this Court
chooses to consider such questions, it reviews for plain error. Zhurbin v. State, 104 A.3d 108,
113 (Del. 2014) (―To warrant review on appeal when the issue has not been fairly presented,
there must be ‗plain error.‘ That is, the error complained of must be ‗so clearly prejudicial to
substantial rights as to jeopardize the fairness and integrity of the trial process.‘‖ (quoting
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986))); see Brown v. State, 36 A.3d 321, 323
(Del. 2012) (reviewing appellant‘s sentence for plain error).
40
See Appellant‘s Opening Br. at 24 (―Where a prior judgment of acquittal is based upon a
general verdict, a court must ‗examine the record of a prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury
could have grounded its verdict upon an issue other than that which the defendant seeks to
foreclose from consideration.‘‖).
41
Banther v. State, 884 A.2d 487, 492 (Del. 2005).
17
Penal Code which Delaware codified as § 208(1)(b) ―defines the scope of res
judicata,‖42 the doctrine of which collateral estoppel is considered a part,43 as well
as the Delaware Criminal Code With Commentary, which describes § 208(2) as
―giving collateral estoppel effect to a former prosecution.‖44
Here, 11 Del. C. § 208(1)(b)(1) allows the indictment for Attempted
Robbery. That section allows second prosecutions for the same conduct when
―[t]he offense for which the defendant is subsequently prosecuted requires proof of
a fact not required by the former offense and the law defining each of the offenses
is intended to prevent a substantially different harm or evil.‖45 Attempted Robbery
in the First Degree requires a jury to find beyond a reasonable doubt that:
(1) The defendant‘s conduct must have occurred in the course of
committing theft, or in an attempt to commit theft; and
(2) The defendant must have used or threatened the immediate use of
force on another person . . . ; and
(3) (a) The defendant must have acted with the intent to prevent or
overcome the resistance to the taking of the property or to the
retention thereof immediately after the taking; or
(3) (b) The defendant must have acted with the intent to compel the
owner of the property or another person to deliver up the property;
and
(4) (a) In the course of the commission of the commission of the crime
or the immediate flight therefrom, the defendant (1) caused
42
COMMENTARIES, supra note 35, at 165.
43
See, e.g., 50 C.J.S. Judgments § 926 (―The doctrine of res judicata encompasses four
preclusive effects that a final judgment may have upon subsequent litigation . . . bar, merger,
direct estoppel, and collateral estoppel.‖).
44
DELAWARE COMMENTARIES, supra note 31, at 20.
45
11 Del. C. § 208(1)(b)(1).
18
physical injury to [the victims] or (2) displayed what appeared to
be a firearm . . . .46
In contrast, Assault First Degree requires a jury to find beyond a reasonable doubt
that: ―[t]he defendant caused serious physical injury [to the victim]; . . . [t]he
defendant acted intentionally; and . . . [t]he defendant used a firearm to cause the
injury.‖47 There are thus several facts necessary to prove either offense, which are
not common to both. And, assault and robbery are sufficiently distinct offenses.
One is against just persons (assault) and the other is against both persons and
property for the sake of obtaining that property (robbery). Thus, § 208(1)(b)(1)
allows the second indictment.
Alternatively, § 208(2), which bars a second prosecution when the former
prosecution ―necessarily required a determination inconsistent with a fact which
must be established for conviction of the second offense,‖48 allows the second
indictment because at the first trial the jury was instructed that the State had to
prove Holland intentionally caused ―serious physical injury‖ and used a firearm to
cause the injury.49 Thus, the jury could have determined that Holland did not
intentionally cause Moore‘s injuries or that those injuries did not meet the
definition of ―serious physical injury.‖ Thus, its conclusion did not necessarily
46
App. to Appellant‘s Opening Br. at A588 (Trial Tr., Sept. 21, 2015).
47
Id. at A252 (Trial Tr., Jan. 27, 2015 (Afternoon Session)).
48
11 Del. C. § 208(2).
49
App. to Appellant‘s Opening Br. at A252 (Trial Tr., Jan. 27, 2015 (Afternoon Session)).
19
require a determination inconsistent with Holland possessing a firearm or using it
to cause injury. Therefore, under either relevant provision of § 208, the State was
not estopped from proving all the elements of Attempted Robbery of Moore.
C.
1.
Holland prevails on his final argument challenging the second indictment,
which is that indicting him for Attempted Robbery ran afoul of the federal due
process concept of vindictive prosecution. We are confronted with a situation
where the State had ample evidence from the beginning to charge Holland with
Attempted Robbery, motivated by Holland‘s perception that Moore was a drug
dealer, even if the State also believed Moore would testify he did not currently sell
marijuana at the time of the incident. But, the reality is that the State did not
charge Attempted Robbery before the first trial and exclusively focused on
Assault. Attempted Robbery was only pressed after Holland proceeded pro se and
was cleared of the most serious charges at his first trial. Although those facts do
not implicate 11 Del. C. § 208‘s bars on new prosecutions, they do implicate the
related federal due process concept of vindictive prosecution, which ―requires that
20
a defendant be freed of apprehension‖ of ―retaliatory motivation‖ on the part of
prosecutors.50
The State argues that the vindictive prosecution argument was not presented
to the Superior Court and thus should be reviewed for plain error.51 Holland
contends he raised the argument ―repeatedly.‖52 We agree with Holland. In this
context, ―vindictive‖ does not have the normal meaning of desiring revenge.53
Rather, vindictive prosecution is a federal due process concept that, generally, on
reindictment or retrial, the State may not substitute a more serious charge for one
brought in the initial proceedings.54 This is based on the intuition that prosecutors
could dissuade defendants from pursuing their rights by holding as-or-more serious
charges for the same behavior in reserve. As the U.S. Supreme Court described in
Blackledge v. Perry55:
There is, of course, no evidence that the prosecutor in this case acted
in bad faith or maliciously in seeking a felony indictment against
Perry. The rationale of our judgment in the Pearce case, however,
was not grounded upon the proposition that actual retaliatory
motivation must inevitably exist. Rather, we emphasized that ―since
the fear of such vindictiveness may unconstitutionally deter a
defendant‘s exercise of the right to appeal or collaterally attack his
first conviction, due process also requires that a defendant be free of
50
Blackledge v. Perry, 417 U.S. 21, 25 (1974) (quoting North Carolina v. Pearce, 395 U.S. 711,
725 (1969)).
51
See supra note 37.
52
Appellant‘s Reply Br. at 5.
53
―Disposed to seek revenge; revengeful.‖ Vindictive, AMERICAN HERITAGE DICTIONARY OF
THE ENGLISH LANGUAGE (4th ed. 2000).
54
Johnson v. State, 396 A.2d 163, 165 (Del. 1978).
55
417 U.S. 21 (1974).
21
apprehension of such retaliatory motivation on the part of the
sentencing judge.‖ . . . A person convicted of an offense is entitled to
pursue his statutory right to a trial de novo, without apprehension that
the State will retaliate by substituting a more serious charge for the
original one, thus subjecting him to a significantly increased potential
period of incarceration.56
In Johnson v. State,57 this Court confronted a case where a defendant was initially
indicted for charges that would have resulted in possible penalties of life
imprisonment and thirty-four years of prison time.58 After a mistrial, the defendant
appealed, and was later reindicted with charges that would have resulted in
mandatory life imprisonment, and seventy-four years of prison time.59 This Court
applied Blackledge, and observed that everything Blackledge ―said about
indictment for a felony following an appeal from a misdemeanor conviction is
equally applicable to an enlarged indictment following a defendant‘s successful
motion for mistrial.‖60 ―The only reason appearing in the record for reindicting the
defendant on the more serious charges is a statement of the prosecutor . . . that the
defendant was undercharged.‖61
The situation here fits within the circumstances recognized in Blackledge
and Johnson as giving rise to a presumption of vindictive prosecution, as the State
56
Id. at 27–28 (citations omitted) (emphasis added).
57
396 A.2d 163 (Del. 1978).
58
Id. at 165.
59
Id.
60
Id.
61
Id. at 164; see also State v. Moran, 820 A.2d 381 (Del. Super. 2002).
22
itself conceded.62 There is also a human reality at work in this case. The State
could not have been pleased to have a defendant like Holland represent himself at
trial, be confronted with what seemed to be very strong evidence of inexcusable
and unprovoked criminal behavior, and to walk out of court acquitted on multiple
major charges and without a conviction on the others. Any prosecutor would feel
the sting of that. Because the circumstances therefore invoke the presumption of
vindictive prosecution, the State must show there was some legitimate reason why
the charges couldn‘t be presented the first time. 63 Before we reach the merits,
though, we explain how we understand Holland to have presented his argument to
the Superior Court.
2.
Holland first raised the vindictive prosecution argument in two pro se letters
he wrote to his attorney at the time and the Superior Court—both letters were
received before Holland elected to proceed pro se. In the first letter, sent to
Holland‘s attorney and entered into the record, Holland stated his concerns that the
State knew before the first trial that Moore had a reputation as a drug dealer,
contradicting what the State, in Holland‘s view, asserted after the fact to justify the
62
Oral Argument at 41:33, Holland v. State, No. 44, 2016 (Del. Jan. 11, 2017),
https://livestream.com/DelawareSupremeCourt/events/6861166/videos/146496660.
63
820 A.2d at 388; see also 63C AM. JUR. 2D Prosecuting Attorneys § 23 (―[O]nce a
presumption of prosecutorial vindictiveness is raised, the government must rebut the
presumption by showing objective reasons for its charges, such as the discovery of new
evidence.‖).
23
new indictment on Attempted Robbery.64 Holland then stated ―I don‘t want to call
the State[‘s] attorney a liar, and I won‘t, but I will say that it‘s prosecutorial
misconduct and somewhat vindictive‖ and cited Johnson v. State,65 the main case
where this Court addresses the federal due process concept of vindictive
prosecution. Similarly, in his letter to the Superior Court, Holland outlined what
he thought were the State‘s misrepresentations about what it knew before the first
trial about Moore‘s reputation for being a drug dealer.66 He also expressed
frustration that his attorney had not raised this argument with the Superior Court.
Holland then asked the Superior Court to find some way to ―address‖ the State‘s
alleged misrepresentations to ensure ―this is a fair trial and lying of an official of
the court of law does not constitute fairness as well as holding back of this
information by a lawyer or official.‖67 Holland closed the letter, asking ―[p]lease
stop this maliciousness and vindictiveness, in the interest of justice.‖68 In both
letters, Holland contrasted the evidence available to the State before the first trial,
including evidence the State used at that trial, all tending to show the State was
aware Moore had been a drug dealer in the past and, at a minimum, was perceived
to be a drug dealer, with the State‘s statements before the second trial that it was
64
App. to Appellant‘s Opening Br. at A408–09 (Pro Se Letter, Sept. 8, 2015).
65
396 A.2d 163 (Del. 1978).
66
App. to Appellant‘s Opening Br. at A413 (Pro Se Letter, Sept. 14, 2015).
67
Id. at 414.
68
Id. at 415.
24
not aware Moore was a drug dealer at the time of the incident.69 Thus, we
understand Holland to mean, when he referred to lying, that he believed the State‘s
indictment on Attempted Robbery was not based on new information, but rather
that the State lied when it denied that it could have brought the Attempted Robbery
charges with the information it had before the first trial. Indeed, at oral argument,
the State conceded the letters raised a vindictive prosecution claim, but argued that
Holland did not renew the claim before the Superior Court when he was actually
representing himself.70
But, Holland raised his vindictive prosecution argument at trial as well. On
the morning of jury selection, Holland stated that he had a disagreement with his
lawyer about a point he wanted to make, that ―the prosecutor lied in their motion,
and I wanted that addressed to the courts.‖71 The combined reference to the State
lying and his lawyer‘s failure to press the argument refers back to Holland‘s letter
to the Superior Court.72
Furthermore, on the first day of trial, the Superior Court invited Holland to
―make any argument you wish over and beyond what was set forth in Mr.
Figliola‘s motion for reargument filed September 4.‖73 After some back and forth,
69
Id. at A408 (Pro Se Letter, Sept. 8, 2015); id. at A413–14 (Pro Se Letter, Sept. 14, 2015).
70
Oral Argument at 41:33, Holland v. State, No. 44, 2016 (Del. Jan. 11, 2017),
https://livestream.com/DelawareSupremeCourt/events/6861166/videos/146496660.
71
App. to Appellant‘s Opening Br. at A420 (Trial Tr., Sept. 15, 2015).
72
Id. at A413 (Pro Se Letter, Sept. 14, 2015).
73
Id. at A425 (Trial Tr., Sept. 15, 2015).
25
Holland stated ―I wanted to bring up the fact that the prosecution lied in the last
motion. I wasn‘t done rearguing that fact, that they lied. And I wanted my lawyer
to bring that up and he didn‘t bring that up. That basically was my issue.‖74
Again, this is a return to his rhetoric in the letters, where the State concedes a
vindictive prosecution claim was raised. Changing tack from its original direction
that Holland could make any argument above and beyond the motions already on
the table, the Superior Court replied that the only argument he would hear at that
point was on the motion in limine. Holland replied: ―if they lying, I can‘t get a fair
trial if they‘re lying.‖75 By lying, we understand Holland to be referring to the
State‘s contention that it did not have evidence to prosecute him for Attempted
Robbery at his first trial. Holland reiterated ―I don‘t think lying constitutes a fair
trial. For the record, lying doesn‘t constitute a fair trial. And that‘s a violation of a
fair trial, to be lied about.‖76 The Superior Court then observed that Holland could
address his concerns on appeal. In combination with the letters, these statements
adequately brought the issue of vindictive prosecution to the Superior Court‘s
attention and, in fact, the Superior Court indicated that Holland‘s argument could
be addressed on appeal. Therefore, we consider the argument as one properly
presented to the Superior Court.
74
Id.
75
Id.
76
Id. at A427.
26
3.
Holland‘s statements below and elaboration on them with the assistance of
counsel before this Court present us with a situation where the defendant was
recharged with different, similarly weighty charges at a second trial on essentially
the same facts as the State possessed before his first trial. The State argues, at least
with respect to Moore, that it did not have an Attempted Robbery case until it
learned Moore would testify he was a drug dealer at the time of the incident.77 But,
we do not credit that argument given the large amount of circumstantial evidence
that had been available to the State before the first trial all tending to show Moore
had a reputation as a drug dealer, and thus, Holland was motivated to target his
apartment for the valuable cash and drugs that go along with that occupation. That
evidence includes Moore‘s ―weed man‖ nickname, the marijuana and baggies
found in Moore‘s apartment, Holland‘s text messages, and Moore‘s own statement
to the police at the time of the incident that he had sold marijuana in the past and
he thought it was possible Holland targeted his apartment because he had been a
drug dealer. And, as the State‘s use of the police reports from immediately after
77
However, at oral argument, the State conceded that there had been sufficient evidence before
the first trial to prove beyond a reasonable doubt Attempted Robbery of Grier. Oral Argument at
30:38, Holland v. State, No. 44, 2016 (Del. Jan. 11, 2017),
https://livestream.com/DelawareSupremeCourt/events/6861166/videos/146496660. We respect
the candor of this admission.
27
the incident to refresh Grier‘s recollection at the second trial shows, Grier told
police that Holland said ―[g]ive me the money‖ when he entered the apartment.78
As in Johnson and Blackledge, here ―the central figure . . . is the
prosecutor.‖79 Similarly, the State here had at least a plausible interest in
discouraging Holland from proceeding pro se, as he did so successfully in the first
trial. The prosecutorial vindictiveness concept, though, is ―not grounded upon the
proposition that actual retaliatory motivation must inevitably exist.‖80 Instead,
―due process also requires that a defendant be freed of apprehension of such a
retaliatory motivation . . . .‖81 Thus, the State has the opportunity to demonstrate a
legitimate reason why it was unable to present the new charges at the first trial.
But, we are not persuaded that the State could have only pressed its Attempted
Robbery theory once it knew of Moore‘s actual testimony, given the large amount
of circumstantial evidence available the first trial. Thus, the State fails to overcome
the federal due process presumption of vindictiveness and Holland‘s convictions
for Attempted Robbery and Home Invasion and the associated counts of
Possession of a Firearm During the Commission of a Felony are reversed. The
78
App. to Appellant‘s Opening Br. at A501 (Trial Tr., Sept. 17, 2015).
79
Johnson, 369 A.2d at 165 (quoting Blackledge, 417 U.S. at 28).
80
Id. (quoting Blackledge, 417 U.S. at 28).
81
Id. (quoting Blackledge, 417 U.S. at 28) (emphasis added); see also 63C AM. JUR. 2D
Prosecuting Attorneys § 23 (―The vindictive prosecution doctrine seeks not only to alleviate the
accused‘s apprehension of persecution, but also to prevent the chilling of the exercise of legal
rights by other defendants who must make their choices under similar circumstances in the
future‖).
28
convictions of Holland at the second trial on charges that had also been pressed at
the first trial remain.
IV.
A.
Holland‘s successful challenge to the new charges in the second indictment
does not invalidate all of the convictions resulting from that indictment, because
Holland was convicted of several charges that were part of the first trial and on
which the first jury hung. Holland therefore attempts to avoid all of his
convictions by arguing that the Superior Court erred in allowing him to represent
himself at his second trial. If a defendant wants to represent herself pro se, she
must waive her Sixth Amendment right to counsel knowingly, intelligently, and
voluntarily.82 This Court reviews constitutional claims de novo.83 The Superior
Court is ―entrusted with the responsibility of ensuring that the decision by a
defendant to represent himself is made intelligently and competently‖ 84 through ―‗a
penetrating and comprehensive examination of all of the circumstances‘ and only
after bringing home to the defendant the perils he faces in dispensing with legal
representation.‖85 This Court has adopted the framework articulated by the U.S.
82
Smith v. State, 996 A.2d 786, 790 (Del. 2010); Briscoe v. State, 606 A.2d 103, 107 (Del.
1992).
83
Smith, 996 at 790; Hall v. State, 788 A.2d 118, 123 (Del. 2001).
84
Briscoe, 606 A.2d at 107.
85
Id. (quoting United States v. Welty, 674 F.2d 185, 189 (3d Cir. 1982)).
29
Court of Appeals for the Third Circuit for the Superior Court‘s examination of a
defendant seeking to proceed pro se.86 This framework states:
The trial court should advise the defendant, for example:
(1) that the defendant will have to conduct his defense in
accordance with the rules of evidence and criminal procedure,
rules with which he may not be familiar;
(2) that the defendant may be hampered in presenting his best
defense by his lack of knowledge of the law;
(3) that the effectiveness of his defense may well be diminished by
his dual role as attorney and accused.
(4) the nature of the charges,
(5) the statutory offenses included within them,
(6) the range of allowable punishments thereunder,
(7) possible defenses to the charges and circumstances in
mitigation thereof, and
(8) all other facts essential to a broad understanding of the whole
matter.87
Although the U.S. Court of Appeals‘ language treats the eight factors as examples,
in some later cases this Court has referred to the Welty factors as a mandatory set
of items to be discussed.88 But, even when this Court has used relatively
mandatory language, it has also observed that ―[a] knowing and intelligent waiver
can occur without reviewing each of [the Welty factors].‖89 In a more recent case
this Court introduced the Welty factors as examples of what the Superior Court
86
Id.
87
Id. at 108 (quoting Welty, 674 F.2d at 189).
88
E.g., Smith, 996 A.2d at 790 (―The trial judge should consider the defendant‘s background,
experience, and conduct, and advise the defendant [of the eight factors].‖); Boyer v. State, 985
A.2d 389, 2009 WL 3841973, at *1 (Del. Nov. 16, 2009) (TABLE) (―The trial court should
advise the defendant [of the eight factors].‖).
89
996 A.2d at 792.
30
should discuss with the defendant.90 This Court has found that a defendant did not
effectively waive his right to counsel when the Superior Court did not touch on any
of the Welty factors and therefore did not adequately advise the defendant of ―the
hazards of self-representation.‖91 Similarly, in Morrison v. State,92 this Court
determined that the Superior Court‘s colloquy with a defendant seeking to proceed
pro se was insufficient because the Superior Court ―failed to inform [the
defendant] of the nature of the charges, the statutory offenses included within
them, the range of allowable punishments, possible defenses, possible
circumstances in mitigation, and the dangers of the dual roles of being an attorney
and the accused.‖93 By failing to do so, the Superior Court ―failed to conduct ‗a
penetrating and comprehensive examination of all the circumstances‘ in order to
find a proper waiver.‖94 Similarly, in Smith v. State,95 the Superior Court reviewed
some, but not all of the Welty factors, the defendant‘s ―answers were not
responsive,‖ and ―the trial judge never made a determination on the record that [the
defendant] knowingly and voluntarily waived his right to counsel.‖96 In contrast,
this Court has also found that a Sixth Amendment waiver was knowing, intelligent,
90
Morrison v. State, 135 A.3d 69, 74 (Del. 2016). But, even in that case this Court observed that
―the failure of a trial court to substantially adhere to [the Welty] guidelines requires the
conviction(s) to be reversed.‖ Id.
91
Briscoe, 606 A.2d at 109.
92
135 A.3d 69 (2016).
93
Id. at 74.
94
Id. (quoting Welty, 674 F.2d at 189).
95
996 A.2d 786 (2010).
96
Id. at 791.
31
and voluntary even when the Superior Court did not mechanically go through each
of the Welty factors.97
B.
At the first trial, the Superior Court asked Holland a series of questions as
part of its determination that his waiver was knowing, intelligent, and voluntary,
beginning with ―[s]o do you wish to represent yourself in this case which is going
forward today?‖ Holland replied ―Yes.‖98 The Superior Court confirmed that
Holland filled out and signed the waiver of counsel form with the assistance of his
counsel.99 Then, the Superior Court noted that ―[a]ll the charges are listed on that
waiver of counsel form,‖ summarized them, and stated the mandatory minimum
sentence of thirty-three years, and explained that meant ―[t]he Court could not give
you any lesser sentence, even if it wanted to.‖100 Holland confirmed he
understood.101 The Superior Court then stated the 242 year maximum sentence and
Holland confirmed he understood the maximum.102 The Superior Court then
engaged in the following dialogue with Holland:
97
Hartman v. State, 918 A.2d 1138, 1140–42 (Del. 2007).
98
App. to Appellant‘s Opening Br. at A048 (Trial Tr., Jan. 21, 2015).
99
The Waiver of Counsel form, which must be signed by the defendant and the Superior Court,
states a defendant‘s charges, maximum total period of incarceration, education, previous
experience with the criminal justice system, and contains a series of statements about the hazards
of self representation that the defendant has to acknowledge. App. to State‘s Answering Br. at
B1 (Waiver of Counsel Form, Sept. 15, 2015).
100
App. to Appellant‘s Opening Br. at A048 (Trial Tr., Jan. 21, 2015).
101
Id.
102
Id.
32
THE COURT: Do you believe you are competent to represent
yourself?
THE DEFENDANT: Yes.
THE COURT: What is the extent of your education?
THE DEFENDANT: I have some college.
THE COURT: And how many years of college do you have and
where, which college was that?
THE DEFENDANT: Close to two at PG Community, Prince George
County.
THE COURT: All right. I understand you have previous experience
in the criminal justice system, in that in 2006, pled guilty to a robbery;
is that correct?
THE DEFENDANT: Yes.
THE COURT: Do I understand that you have not participated in a trial
before?
THE DEFENDANT: Yes.
THE COURT: Do you realize that most persons who are charged with
criminal offenses choose to be represented by a lawyer, and that the
constitution guarantees you, as an accused person, the right to a
lawyer?
THE DEFENDANT: Yes.
THE COURT: I understand—do you understand that a competent
lawyer would be knowledgeable in court—of court proceedings,
Rules of Evidence and the law that governs your trial? If this case is
tried, do you understand there may be technical issues, which would
make it very difficult for you as a nonlawyer to assess?
THE DEFENDANT: Yes.
THE COURT: [D]o you understand that a trial in this case will take
place according to the established laws and rules of Court and that you
do not have a constitutional right: A, to receive personal instruction
from the trial judge on courtroom procedure; and B, to have the trial
judge take over the chores for you that would normally be attended to
by a trained lawyer as a matter of course if you have legal
representation?
THE DEFENDANT: Yes.
33
THE COURT: Do you understand that if you become confused or
frustrated, there would be no basis to interrupt the trial nor would it be
permission [sic] for you to raise improper objections or
representations?
THE DEFENDANT: Yes.
THE COURT: Do you understand if you should fail to conduct
yourself with due respect for the laws and rules governing your trial or
if you should become disruptive, it is possible that the trial court,
that‘s me, might then appoint a lawyer, that would be Mr. Armstrong,
to represent you whether you liked it or not?
THE DEFENDANT: Yes.
THE COURT: Do you understand that the Court in its discretion may
appoint a standby lawyer to assist you and offer consultation whether
you desire a standby lawyer or not?
****
THE DEFENDANT: Yes.
THE COURT: Do you understand there are definite hazards in
representing yourself?
THE DEFENDANT: Yes.
THE COURT: Nevertheless, do you wish to represent yourself in this
case?
THE DEFENDANT: Yes.
THE COURT: And do you believe you are knowingly, intelligently
and voluntarily waiving your right to an attorney?
THE DEFENDANT: Yes.
THE COURT: I will also add that if at any time during the trial, you
would ask permission to have Mr. Armstrong be admitted as your
counsel of record, he would then take over the trial. He would then do
whatever things are necessary, opening statements, cross-examination
of witnesses, jury selection, closing arguments, et cetera. Do you
understand that?
THE DEFENDANT: Yes.103
103
Id. at A048–49.
34
When, at the second trial, Holland wanted to represent himself, the Superior Court
engaged in another dialogue with him, again confirming Holland wanted to
represent himself, that Holland understood the potential length of his sentence, and
asked Holland a series of questions:
THE COURT: Do you understand that you have the right to be
represented by counsel, and that‘s a constitutional right?
THE DEFENDANT: Yes.
THE COURT: . . . . But do you understand that Mr. Figliola, or any
lawyer, is going to be more knowledgeable about court procedure and
rules of evidence and the law than someone representing himself, who
hasn‘t been to law school?
THE DEFENDANT: Yes.
THE COURT: Do you understand that you don‘t have a constitutional
right to receive personal instruction from me as the trial judge on
courtroom procedure or to have me take over chores for you that are
normally handled by a trained lawyer as part of the representation?
THE DEFENDANT: Yes.
THE COURT: Do you understand that, if you become confused or
frustrated, that would be no basis to interrupt the trial and it wouldn‘t
be any authority for you to raise improper objections or
representations?
THE DEFENDANT: Yes.
THE COURT: Do you understand that, if you should fail to conduct
yourself with due respect on the laws and rules governing our trial, or
if you should become disruptive, then I might appoint a lawyer, in this
case Mr. Figliola, to represent you, whether you liked it or not?
THE DEFENDANT: Yes.
THE COURT: Do you understand, as in the last trial, if I allow you to
represent yourself—and it‘s your constitutional right to do so—that I
would appoint Mr. Figliola as so-called standby counsel? He would
just be here in Court for the entire trial? He would never address me.
35
He would just offer you any advice that you may want to ask him
about?
THE DEFENDANT: Yes.
THE COURT: Do you understand, as Mr. Figliola said, that whether
or not you take the witness stand or not in your defense is totally 100
percent your decision?
THE DEFENDANT: Yes.
THE COURT: Do you understand that Mr. Figliola can give you his
best advice as to whether or not you should take the witness stand or
not but, ultimately, it‘s your decision?
THE DEFENDANT: Yes.
THE COURT: I gather from Mr. Figliola that his recommendation to
you is that you take the stand but that you have indicated to him that,
now at least—you don‘t have to make this decision until the end of
the—until it gets to be the defense case—that, ultimately, that‘s going
to be your decision?
THE DEFENDANT: Yes.
THE COURT: I mean, you could have Mr. Figliola represent you
during the trial but still decide not to take the witness stand. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: Do you understand that, if you were to take the witness
stand, there would be an out-of-jury hearing to determine what crimes
that you previously were convicted of might be admissible for
impeachment purposes, meaning going to credibility? That‘s a
standard procedure in criminal trials. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: All right. Well, I think the defendant has—do you
believe you have knowingly, intelligently, and voluntarily waived
your right to counsel?
THE DEFENDANT: Yes.
THE COURT: All right. I find that you have knowingly, intelligently,
and voluntarily waived your right to counsel. I incorporate by
36
reference, finding that I made in the first trial, where a similar
colloquy was had. So, I have signed the waiver-of-counsel form.104
C.
Holland now argues that the Superior Court failed to properly determine that
his waiver of counsel was knowing, intelligent, and voluntary because, in essence,
the Superior Court integrated some of its findings from the first trial‘s pro se
colloquy into its determination at the second trial. Specifically, Holland argues
that the colloquy at the second trial was defective because: i) the Superior Court
did not confirm that Holland remembered the first colloquy or still understood the
considerations covered before it relied on some of its findings; ii) the Superior
Court did not specifically state in the second colloquy that the effectiveness of
Holland‘s defense could be diminished by his dual role as defendant and attorney;
iii) the Superior Court did not mention the specific statutory offenses Holland was
charged with; and iv) the Superior Court did not inform Holland of the range of
allowable punishments he was facing.105 In doing so, he argues that this Court‘s
precedents dictate that the Superior Court must explicitly discuss each Welty
factor.
But, the Superior Court adequately determined that Holland‘s waiver of his
right to counsel was knowing, intelligent, and voluntary. At the second trial‘s
104
App. to Appellant‘s Opening Br. at A420–21 (Trial Tr., Sept. 15, 2015) (emphasis added).
105
See Appellant‘s Opening Br. at 36.
37
colloquy, the Superior Court explicitly covered the first and second Welty
factors.106 The Superior Court also spent a great deal of time addressing the issue
that had seemed to precipitate Holland‘s desire to proceed pro se: when and how
he might testify on his own behalf. The Superior Court walked Holland through
the ideas that testifying was his choice alone whether he proceeded with his
attorney or pro se, that Holland‘s attorney could give him good advice on
testifying, and that if Holland took the stand it was conceivable that evidence of
crimes he had been convicted of in the past would be admitted for impeachment
purposes. Additionally, the waiver of counsel form, which Holland had filled out
and the Superior Court referred to throughout the colloquy, listed the charges,
which is the fourth Welty factor.107 Already, the colloquy at the second trial was
more substantial than those in the cases Holland relies on where the Superior Court
barely covered Welty factors and did not tailor its colloquy to the specific reasons
the defendant wanted to proceed pro se.
Furthermore, there is no reason for this Court to exclude the Superior
Court‘s colloquy at the first trial from its analysis of Holland‘s waiver of his right
to counsel at the second trial. Although Holland now objects that the Superior
Court did not confirm Holland recalled the first colloquy, both colloquies were
106
―[T]he defendant will have to conduct his defense in accordance with the rules of evidence
and criminal procedure, rules with which he may not be familiar‖ and ―that the defendant may be
hampered in presenting his best defense by lack of knowledge of the law.‖ Welty, 674 F.2d at
189.
107
App. to State‘s Answering Br. at B1 (Waiver of Counsel Form, September 15, 2015).
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before the same judge, for trials on the same incident, a little over half a year apart.
Additionally, the Superior Court explicitly relied on the first colloquy in the second
colloquy and Holland, or his attorney, who was participating at that juncture, did
not voice confusion at the time even though there was ample opportunity in the
colloquy to do so. It is rational, therefore, for a judge who had thoroughly
reviewed the Welty factors previously with a defendant to carefully tailor the
second proceeding by focusing more acutely on certain key factors and carefully
giving the defendant information to make sure his waiver was knowing, intelligent,
and voluntary. The particular inquiry the Superior Court conducted here reflected
such an effort.
To this point, consideration of the Superior Court‘s colloquy from the first
trial helps further demonstrate the robustness of its inquiry into Holland‘s choice to
waive his right to counsel. For one thing, in the earlier colloquy the Superior Court
directly addressed the third Welty factor, that the effectiveness of Holland‘s
defense might be diminished by his dual role as attorney and accused. 108 The
Superior Court also directly addressed the statutory minimums and maximums,
which addresses the sixth Welty factor. Holland argues that this discussion was
improperly integrated into the second colloquy because the charges against him
were partially changed between the first and second trials. But, both Assault First
108
The Waiver of Counsel form, signed by Holland before the second colloquy, also addresses
this point. Id.
39
Degree, the crime for which he was initially charged, and Robbery First Degree,
the attempt of which he was charged before the second trial, are classified as Class
B Felonies under the Delaware Sentencing Accountability Commission‘s
guidelines and have nearly identical defined maximums and minimums.109
Although a perfect colloquy would likely have acknowledged the variation, this
colloquy‘s failure to do so, by itself, is not a sufficient reason to reverse the
Superior Court.110 Thus, between the two colloquys, only the seventh Welty factor,
possible defenses to the charges and circumstances in mitigation, was left
unaddressed. Although this Court‘s pronouncements on how to use the Welty
factors in this context have been somewhat confusing, the more recent cases
emphasize that not every factor has to be specifically addressed in each case.
Instead, the Welty framework is a guide to use in addressing the Superior Court‘s
ultimate objective here, which is ensuring defendants understand the repercussions
and risks of their choice to proceed pro se. Here, the Superior Court addressed
almost all of the factors and, most importantly, tailored its inquiry to the issue that
109
DELAWARE SENTENCING ACCOUNTABILITY COMMISSION, BENCHBOOK 2015 6, 15, 37–38
(2015). The difference in the minimum amounted to three years.
110
As the State points out, at the second trial, the Superior Court did explain the maximum and
minimum sentences. State‘s Answering Br. at 33. But that explanation came after the Superior
Court found that Holland knowingly, intelligently, and voluntarily waived his right to counsel, so
it‘s difficult to credit that explanation as part of the colloquy. But, in fairness to the State‘s
point, the Superior Court did give Holland the opportunity to confer with his now-standby
counsel and his mother after hearing the minimums and maximums. App. to Appellant‘s
Opening Br. at A423 (Trial Tr., Sept. 15, 2015). Furthermore, the maximum was listed and
acknowledged by Holland on the Waiver of Counsel form. App. to State‘s Answering Br. at B1
(Waiver of Counsel Form, Sept. 15, 2015).
40
was driving Holland‘s request to proceed pro se. The Superior Court‘s generally
careful work here was sufficient to constitute the sort of inquiry this Court requires
and thus sufficient for Holland‘s waiver of his Sixth Amendment right to counsel
to be knowing, intelligent, and voluntary.111
V.
To sum up, the Court reverses Holland‘s convictions for Attempted Robbery
and Home Invasion and the associated counts of Possession of a Firearm During
the Commission of a Felony because the State failed to overcome the presumption
of vindictive prosecution. But, because we find that his waiver of his right to
counsel was knowing, intelligent, and voluntary, and reject his other claims,
Holland‘s convictions for Assault Second Degree, the related count of Possession
of a Firearm During the Commission of a Felony, and Criminal Mischief stand.
The time for filing a motion for rehearing en banc is shortened to five days.112
111
Holland, for the first time on appeal, makes another argument attacking the validity of the
entire trial. He argues that the Superior Court committed plain error when it failed, on its own
motion, to declare a mistrial when Holland became aware of a supplemental DNA report mid-
trial, even though the State had disclosed the report six months earlier. At trial, Holland
successfully objected to the introduction of the supplemental report, App. to Appellant‘s
Opening Br. at A515 (Trial Tr., Sept. 17, 2015), but then decided he preferred the supplemental
report to the original one, id. at A519–20 (Trial Tr., Sept. 18, 2015), and consented to its
introduction. ―[T]his Court has consistently held that a conscious decision to refrain from
objecting at trial as a tactical matter is a waiver that will negate plain error appellate review,‖
Wright v. State, 980 A.2d 1020, 1023 (Del. 2009), and so we do not consider this argument
today.
112
Supr. Ct. R. 4; id. 18.
41