State v. Nastatos

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
) Def. I.D. #1102018112

v. )

)

ANTHONY NASTATOS )

)

Defendant. )

Submitted: November 28, 2018
Decided: May 13, 2019

Upon Defendant’s Motion for Postconviction Relief (R-1)

DENIED

AMENDED MEMORANDUM OPINION

Renee Hrivnak, Esquire, Deputy Attorney General, Department of Justice, 820 N.
French Street, 5" Floor, Wilmington, DE 19801; Attorney for State of Delaware.

Christopher S. Koyste, Esquire Law Office of Christopher S. Koyste LLC, 709

Brandywine Blvd., Wilmington, DE 19809; Attorney for Petitioner Anthony
Nastatos.

KARSNITZ, J.
I. INTRODUCTION
In December of 2012, a jury found defendant Anthony Nastatos (“Defendant”

or “Nastatos”) guilty of one count of Harassment! (as a lesser included offense of
Stalking’), three counts of Breach Conditions of Bond During Commitment?
(“BCBDC”), and sixteen counts of Non-Compliance with Bond Conditions‘
(“NCBC”).° In March of 2013, he was sentenced to thirty-two years at Level V,
suspended after sixteen years for decreasing levels of probation.© The Delaware
Supreme Court affirmed the conviction in April of 2014.7 Defendant has now filed
a Motion for Postconviction Relief under Superior Court Criminal Rule 61 on the
basis that he was denied effective assistance of counsel at his 2012 trial and during
his subsequent appeal in 2014.8

Defendant raises several claims under both the United States Constitution and
the Delaware Constitution alleging that his conviction and his sentence resulted from
violations of his right to due process and right to effective assistance of counsel.
Specifically, he claims that trial counsel was ineffective for: (1) failure to limit

references to prior bad acts (incarceration) and mental health issues and to request a

111 Del. C.§ 1311.
211 Del. C.§ 1312.

311 Del. C. § 2109.

411 Del. C.§ 2113(c).

5 DI. 47

DIL. 56.

Nastatos v. State, 91 A.3d 562, 2014 WL 1512887 (Del. 2014).

D.I. 81.

oOo st DH

1
limiting jury instruction thereon, either during or after trial; (2) failure to object to a
police officer’s impermissible hearsay testimony; (3) failure to object to prejudicial
errors committed by the State of Delaware (the “State”) during its direct examination
of the victim; (4) failure to object to the Court’s limiting instruction on inadmissible
evidence; (5) failure to review the victim’s cell phone records; and, (6) failure to
move for the trial judge’s recusal before sentencing. Defendant claims that the State
failed to provide him with the complaining witness’ cell phone records, which might
have contained Brady” material. He claims these cumulative errors denied him a fair
trial. He alleges appellate counsel was ineffective on direct appeal for: (1) failure to
raise cumulative errors at the trial; and, (2) failure to object to certain comments
made by the judge before the sentencing hearing.

I find that Defendant has failed to satisfy the prejudice portion of the two-part
test set forth in Strickland v. Washington" (“Strickland”), as discussed more fully
below, as to his allegation of ineffective assistance of trial counsel. I further find
that Defendant has failed to satisfy either the performance portion or the prejudice
portion of the Strickland test as to his allegation of ineffective assistance of appellate
counsel. Finally, I find that Defendant’s speculative Brady claim is procedurally

barred. Accordingly, the Motion is DENIED.

9 Brady v. Maryland, 373 U.S. 83 (1963).
'0 466 U.S. 668 (1984).

2
Il. BACKGROUND

A. PROCEDURAL HISTORY

Nastatos was arrested and charged in October of 2010 with Stalking which
was later reduced to two counts of Harassment.'! In February of 2011, Nastatos was
arrested and charged with Stalking and twenty counts of misdemeanor NCBC.!? In
all instances, Alexandra Koval (“Koval”) was the complaining witness. The cases

were consolidated after being transferred to the Superior Court in March 2011."

The Superior Court ordered Nastatos to undergo a psychiatric evaluation in
April 2011. On June 20, 2011, Nastatos was indicted by a grand jury.'* As a result
of allegations he violated the no contact order against him, Nastatos was re-indicted

on March 12, 2012,'° and again on May 21, 2012.'6

A jury trial began on December 11, 2012.'7 At trial, the State entered nolle

prosequis on six counts of misdemeanor NCBC after the Court excluded exhibits

'l Def. I.D. # 1010004795.

12 Def. I.D. # 1102018112.

'S Defendant’s charges were consolidated into a twenty-six count Superior Court
indictment under which he faced: one count of Stalking, three counts of felony
BCBDC, and twenty-two counts of misdemeanor NCBC.

'4 After the cases were consolidated and Nastatos was indicted, the Court of
Common Pleas dismissed the case stemming from Nastatos’ October 2010 charges.
Def. LD. # 1010004795.

5 DI. 18.

6 DL 31.

7 D.L. 50.
which it ruled were not properly authenticated.'* Nastatos’ motion for judgment of

acquittal on the remaining counts was denied.!°

After a four-day trial, a jury found Nastatos guilty of the remaining charges,
including: three counts of felony BCBDC, one count of Harassment (as a lesser
included offense of Stalking), and sixteen counts of misdemeanor NCBC.2° A
presentence investigation was conducted and on March 1, 2013, and, effective
February 22, 2011, Nastatos was sentenced to 32 years at Level V, suspended after
16 years for decreasing levels of probation. Nastatos appealed his conviction and

sentence and the Delaware Supreme Court affirmed the Superior Court’s judgment.?!

B. THE OFFENSES

Nastatos’ convictions arise from a series of events where he continuously
sought out his former co-worker at her home, her place of work, by mail, and through
social media despite police warnings, court orders, and incarceration. The facts are
summarized as follows:?

Nastatos and Alexandra Koval (“Koval”) met in August 2009, while
working at the same restaurant on Route 202 in New Castle County.

'8 D.I. 48; D.I. 50; D.I. 53.
9 DI. 50.
20 DI. 50.
21 DI. 68.
°° The facts contained in this opinion were set forth by the Supreme Court in its
opinion affirming Nastatos’ conviction on direct appeal. Nastatos v. State, supra, at
*1-3,
4
The two developed a friendly relationship. Soon after they met,
Nastatos anonymously covered Koval’s car with flower petals. He later
admitted to the act and told her he had romantic feelings for her. Koval
told Nastatos she did not have romantic feelings for him.

A few days later, Koval and Nastatos went shopping together, had
dinner at a restaurant, and met another co-worker for drinks that night.
Nastatos’ behavior that night made Koval uncomfortable. Koval’s
discomfort forced her to cancel other plans they had made together.
After that, she avoided Nastatos.

A couple of months later, Koval’s car ran out of gas and she was
required to take a different vehicle to work. Nastatos left a can of gas
for Koval at work. Later, another can of gas was found at her house
next to her car. After this, Nastatos began to regularly send Koval
lengthy love poetry via text messages, and to wait for Koval after work.
Koval told Nastatos that these overtures made her uncomfortable and
asked him to leave her alone.

Nastatos then attempted to “friend” Koval on Facebook, under the
pseudonym “Anakin Skywalker.” Koval rejected this friend request.
Next, Nastatos attempted to friend Koval from a Facebook account
attached to his real name. Koval neither accepted nor denied this friend
request. The pending friend request allowed Nastatos to send Koval
private messages on the Facebook website.

In the spring of 2010, Nastatos sent Koval a late night text message
containing a long poem. Koval told her coworker about the text, and
Nastatos’ previous behavior. The co-worker told the restaurant’s
management. Koval’s manager examined the text messages and
transferred Nastatos to another location.

Around this time, Koval also made her first report to the New Castle
County Police Department (“NCCPD”). The NCCPD told Koval to
block Nastatos’ cell phone number, which she did. Nastatos then began
regularly contacting Koval on Facebook, both through the account
associated with his own name and the account with the name “Anakin
Skywalker.”
In various messages, Nastatos called Koval his “wife” and “soul sister.”
He also referenced Koval contacting the police, a necklace he had given
Koval, and mutual friends and co-workers. Nastatos asserted his belief
that the restaurant management was conspiring against him. In one
message, Nastatos said, “I love you like I’ve never loved another
person, but I can only do so much, especially when you are working
against me.” Nastatos also referenced a desire to “challenge” anyone
for Koval’s “hand.”

In September 2010, Koval again contacted the NCCPD. Police visited
Nastatos, who claimed he and Koval were dating. The police advised
Nastatos to stay away from Koval. Nastatos then expressed a belief that
the police, the restaurant management, and Koval’s father were all “in
on” keeping Koval and Nastatos apart.

The police visit did not dissuade Nastatos. He sent Facebook messages
to Koval twice after the visit, referencing their prior dinner together and
stating he was going to come to her new restaurant working location to
see her. The NCCPD then arrested Nastatos. The Justice of the Peace
placed bail conditions on Nastatos to have no more direct or indirect
contact with Koval.

Nastatos continued to regularly send Koval Facebook messages,
begging her to talk to him. Nastatos also sent a message to Koval’s
father discussing Koval and referencing the restaurant management’s
conspiracy to keep him and Koval apart. In January 2011, Nastatos sent
Koval a Facebook message telling her the no-contact order did not
matter because the two were bound by a higher power. Nastatos
continued to regularly send Koval Facebook messages referencing her
employer, the NCCPD, and his desire to meet with her.

On February 9, 2011, Nastatos sent Koval a message stating he would
be at the Riverfront in Wilmington waiting for her. Koval was at her
second job at a restaurant at the Riverfront and saw Nastatos outside of
the window of the restaurant. The two did not interact.

Six days later, Nastatos arrived at the restaurant, which was Koval’s
primary place of employment, and attempted to speak with Koval.
Koval ran to her car. As she was fleeing, Nastatos threw a ring box at
her. Koval contacted the NCCPD. Nastatos sent Koval a Facebook

6
message saying that the restaurant manager would be holding the ring
for Koval.

Four days later, Nastatos sent Koval the following Facebook message:

Allie, I’m in love with you. Never in my life have I cared
about one person more than you. Half of me wants to kill
people for interfering. If you ask, I will.... [have had many
people take a knee to me. Never have | kneeled to another
person until I kneeled to you. I will be wearing our
wedding bands until I see you again.

Koval contacted the NCCPD, who arrested Nastatos for additional
charges. The Justice of the Peace Court issued a second no-contact
order.

In March 2011, while incarcerated, Nastatos sent Koval a letter asking
if she would marry him. He sent her a second letter five months later,
referring to her as “Alexandra Nastatos” and professing his continued
love for her. In this second letter, he also referenced her employer and
his interactions with the NCCPD. Eight months later, Nastatos sent
Koval a third letter. In this letter, he referenced her employer, the
restaurant manager, the NCCPD, and Koval’s father.

Nastatos was charged with one count of felony Breach of Conditions of
Bond During Commitment for each letter. He was also charged with
Stalking and one count of misdemeanor Non-Compliance with
Conditions of Bond for each of the Facebook messages he sent after his
bond condition was ordered.”

C. SUBPOENAED CELL PHONE RECORDS

Before trial, the State subpoenaed the victim’s cell phone provider, requesting
copies of “subscriber and call detail records for all incoming and outgoing calls.”

Text messages were neither requested nor received. The State reviewed the call

3 Nastatos y. State, supra, at *1-3.
records and found that neither of the two telephone numbers associated with
Nastatos appeared in those records. The State did not produce a copy of the call
records to Trial Counsel, but it did notify Trial Counsel that he could review the

records in full. Trial Counsel never arranged a time to review the cell phone records.

D. TRIAL

Though initially found incompetent to stand trial, Nastatos was later deemed
competent after receiving treatment at the Delaware Psychiatric Center.** Nastatos’
case proceeded to trial and the jury was selected on December 11, 2012. Testimony
began the next day.

i. Complaining Witness’ Testimony

The State’s first witness in its case-in-chief was Koval. Koval’s testimony
included several statements describing the messages, Emails and letters that Nastatos
had sent her. After the first mention of receiving a message from Nastatos, Trial
Counsel objected on the grounds that a proper foundation was required under

Delaware Rules of Evidence (“D.R.E.”) 901 before Koval could testify that Nastatos

** Before trial, Nastatos was ordered to undergo a psychiatric evaluation. On June
13, 2011, he was deemed incompetent to stand trial due to mental illness and was
subsequently treated at the Delaware Psychiatric Center. A second evaluation on
January 26, 2012 found that his competency was restored and Nastatos was
transferred to the Department of Correction to await trial. While incarcerated,
Nastatos refused to take his medication and was again deemed incompetent. He
returned to the Psychiatric Center for treatment. On August 8, 2012, Nastatos was
evaluated for a third time and deemed competent to stand trial.

8
indeed sent the message. In sustaining the objection, the Court advised the State to
“establish a foundation as to why she concluded [the message] was from [Nastatos]
and what she based that on.””>

Trial Counsel objected on numerous occasions during the State’s direct
examination of Koval to the non-authentication under D.R.E. 901 of the messages,
Emails and letters referenced by the State. The Court conducted several sidebar
conferences with counsel discussing how to lay a proper foundation, and instructed
and corrected the State in front of the jury on several occasions. Trial Counsel also
maintained a continuing objection to the conditional admission of all of the evidence

on the grounds that the D.R.E 901 requirements had not been satisfied.

ii. References to Mental Health and Prior Incarceration

During trial the State sought to introduce thirty-eight documents consisting of
emails, text messages, Facebook messages and posts, and letters sent from Nastatos
to Koval while he was in prison. Trial Counsel objected to the admission of each
document, arguing that the State failed to properly authenticate them pursuant to
D.R.E. 901. The Court conditionally admitted the evidence, provided the State could

lay the proper foundation.

25 App. to Appellant’s Opening Br. Vol. I, at A-84.
9
In the documents there were several statements about Nastatos’ prior
incarceration and psychiatric hospitalization. The statements were written by
Nastatos himself in various communications to Koval. Three references were made
to Defendant’s prior incarceration:

e “... ButI did go to jail.””6

e “... again I'll be in Gander.”?’

e “T’ve been in jail before, longest bit, one year. A lot of people can’t
handle jail; it definitely tests a person. Though I’d rather be free,
I’m fine.”

Trial Counsel did not specifically object to these references, but maintained a
continuing objection on Rule 901 grounds. The State suggested the possible need for
a curative instruction based on the “[I]’ve been in jail before . . .” statement, but did

not have preference as to when the instruction was given.”’ Trial Counsel asked that

*6 See App. to Def’s Amended Motion for Postconviction Relief, at A45 (State’s
Ex. 2).
ai A72, State’s Ex. 9

7 A62, 63, State’s Ex. 36

= See A67 (Tr., at 86:8—88:10):

[STATE]: ... What I wanted to bring up to Your Honor was
that in Exhibit No. 36, the second letter that was admitted into evidence,
the last page of the letter has a paragraph that states, “I’ve been in jail
before, longest bit, one year. A lot of people can’t handle jail, it
definitely tests a person. Though I’d rather be free, I’m fine.” And
considering the statement, it’s the State’s belief that this statement
should—that because of the statement being in the document that the
jury has heard, that the Court should give the jury an instruction,

10
the instruction be given at the end of trial.*° The trial testimony also included six
references to Defendant’s mental illness or hospitalization at a mental health

institution:
e “First, I have an OCD”!
e “T ended up in a hospital”

e “TI woke up in Meadow Wood”?

e “When I was in Meadow Wood”?3

curative instruction indicating that any prior alleged or prior
misconduct should be disregarded.
* * * K

[STATE]: ... Your Honor, the State has no position as to when
instructions should be given, we would leave that to defense counsel.
But—

* * * *

COURT: So, what do you want me to do?

[STATE]: Your Honor, the State believes that a simple curative
instruction either—you know, depending on when defense counsel
wants this instruction, when—you know, just that—you know, an
instruction that, you know, uncharged misconduct, meaning uncharged
in this particular case if there’s been any inferences, a limiting
instruction, you know, that the jury should just disregard it.

COURT: — Well, Mr. Flockerzie. Do you have a position?

[TRIAL COUNSEL]: I certainly don’t oppose. I believe that the
State may now be planning to bring in someone from the Department
of Corrections to discuss the letters, to the extent that if that’s the case,
perhaps a general curative at the end of trial while instructing the jury
would be appropriate and all-encompassing of all of this.

30 Id.

7 A48, State’s Ex. 4
2 A55, State’s Ex. 22
7 A56, State’s Ex. 24

1]
e “I was diagnosed delusional’**

e “They sent us to the State Hospital—they sent me to the State
Hospital for treatment because I believe the above statement. They
pumped me full of drugs for months. . .”°°

Trial Counsel did not specifically object to any of these references, although he
maintained a continuing objection on D.R.E. 901 grounds.
iii. Officer’s Testimony

On direct examination of Officer Kerri Clarke, the State elicited testimony
about prior statements made by witness Koval to Officer Clarke. These prior witness
statements were not inconsistent with Koval’s testimony, were not offered to rebut
an “express or implied charge against [Koval] of recent fabrication or improper
influence or motive,” nor were they identifying Defendant. Thus they constitute
hearsay under D.R.E. 801(d)(1) and were inadmissible. The State did not seek to
admit the prior witness statement under 11 Del. C. §3507. Trial Counsel did not

object to this testimony.

iv. Jury Instruction and Verdict

When the State concluded its case-in-chief, the Court excluded six of the

thirty-eight exhibits that had been conditionally admitted because the State did not

ee A62, State’s Ex. 36
2 A70, State’s Ex. 37

12
lay a sufficient foundation for them. As a result, the State entered nolle prosequis
on the six related counts of NCBC.

At the close of the evidence, the Court instructed the jury. The jury was not
given a limiting instruction as to either the references to Nastatos’ prior incarceration
or his mental health problems.*°

Trial concluded on December 19, 2012. Nastatos was convicted of one count
of Harassment (as a lesser included offense of Stalking), three counts of felony
BCRDC, and the remaining sixteen counts of misdemeanor NCBC. A presentence
investigation was ordered, and sentencing was scheduled for the following March.

No post-verdict motions were filed.

E. SENTENCING

On March 1, 2013, when the State moved for Nastatos’ sentencing, Trial
Counsel immediately asked the Court for a sidebar conference. At sidebar, Trial
Counsel asked to put on the record comments that were allegedly made by the Court

during or before trial:

TRIAL COUNSEL: What I want to put on the record is that
during either the pretrial or during the trial conference in Chambers, the
Court indicated to counsel that the Court has four daughters, and that if
the Defendant had been doing what he was doing in this case to the
Court’s daughters, then the Court would have to stop him. And I forget
the exact language used, but it was: I would have to run him down or
gun him down, or stop him.

386 Jury Instructions, D.I. 49.
13
COURT: Mr. Flockerzie, first of all, I don’t use that kind of
terminology. I might have said he’d tuck his head between his legs and
kiss something good-bye, but personally I wouldn’t have said that. But
what are you telling me? That if he was found guilty, that I would
sentence him accordingly because I have four daughters?

TRIAL COUNSEL: What I’ve put on the record is my best
recollection of what the Court said at that conference. And I’m doing
nothing more than putting that into the record.

STATE: Your Honor, Mr. Flockerzie did not raise any issue of
concern about Your Honor presiding over the trial. The State doesn’t
recall any statement regarding a weapon, or running down, anything
like that.

COURT: Well, [Trial Counsel] put it on the record, so I don’t
think we can go forward unless and until we have an evidentiary
hearing. Mr. Flockerzie, I have no recollection, but it has to be put on.
It has to be—what, in effect, you’re saying is you are moving for my
recusal as the sentencing Judge because of prior misconduct and asking
for a new trial. That’s essentially what you’re asking for.

Well I don’t know—I’m not sure how we stand, because I didn’t
have anything to do with the jury verdict, and you haven’t complained
about any evidentiary rulings. You just don’t want me to sentence him
because of comments that you remember.

Again, anybody who has been around here, any of the people that
have been in my court, know I wouldn’t even have said that. Now, I
might have said some other strange comment, but I wouldn’t have
said—used that terminology. That’s why I said I think you’re wrong.

Look it makes no nevermind to me. I assume you’re going to
file a motion for a new trial.°’

°7 A-103 (03/01/2013 Sentencing Tr., at 3:3-#-18; 3:23-4:6; 4:15-5:12).
14
The State continued to express its objection to delaying sentencing because
Trial Counsel had never before raised concerns about the trial judge presiding over
the trial or sentencing, including in the months after trial concluded. The State
argued that raising the issue on the day of sentencing was “disheartening” because
the presentencing investigation was complete, the victim was present in the
courtroom, and the State was “ready to go.” Additionally, the State argued that it
did not know what Trial Counsel was asking for procedurally because Trial Counsel
did not make a request other than to “put something on the record.” Trial Counsel
responded that he was “not asking for recusal,” but rather, just wanted the alleged
statements to be included in the record.*®

After the sidebar conference concluded, the Court proceeded with the
sentencing hearing. The trial judge stated in open court:

{C]ounsel for the defense has raised at sidebar a belief that the

Court prior to trial or going to trial, I’m not sure at which point, because

he didn’t specify the date, indicated that if Mr. Nastatos were found

guilty, the Court would react negatively.

Now, I have no recollection of that, but the defense is entitled to

an evidentiary hearing and the ability to file a motion for postconviction

relief based upon that. I did not have any feeling about his guilt or

innocence, and I had no feeling about sentencing one way or the other,

as far as I can recall. Nor do I ever recall referencing his sentence. But
we need to have a formal evidentiary hearing.

* * * *

38 Td., at 3:3—16:18).
15
It was not raised at any point in time. But, in any event,
everybody’s here. We'll go forward with it. And I gather, Mr.
Flockerzie, again, you indicated, implicitly stating, that I—it doesn’t
bother me. It is what it is—somehow made a statements [sic] that
indicated some sort of closed-mind bias at a point either prior to trial of
during trial, which were not—about which no complaint was made or
any comment noted that somehow invalidates the jury’s verdict or that
somehow I did something to invalidate the jury’s verdict and indicates
a closed mind at this date March 1“ from a December trial.*?

The Court sentenced Nastatos to thirty-two years at Level V, suspended after
sixteen years based on the Court’s finding that there were aggravating factors present

including, past violent behavior and disregard for court orders and incarceration.

F. DIRECT APPEAL

Through counsel, Defendant appealed his conviction and sentence to the
Delaware Supreme Court and raised two claims: (1) the trial court abused its
discretion when it allowed the State to present thirty-eight documents to the jury,
including several Facebook messages, without properly authenticating them under
D.R.E. 901; and (2) the trial court acted with a closed mind and relied on
impermissible and erroneous facts when it imposed a cruel and unusual punishment
by deviating upward from the presumptive sentences.*? While the appeal was

pending, however, Appellate Counsel withdrew the first claim after determining it

39 Td, at 14:22-!5:13; 15:22-16:12.
40 Nastatos v. State, 2013 WL 3283811 (Del. 2013) (Appellate Brief).

16
was no longer justiciable in view of the Delaware Supreme Court’s opinion in
Parker v. State.*'

In regard to the remaining claim - that the trial court acted with a closed mind
and imposed a cruel and unusual punishment - the Supreme Court affirmed this
Court’s judgment, finding:

The record reflects that the trial judge did consider Nastatos’ mental
health history. There is no evidence that the trial judge relied on
inaccurate or unreliable information. The sentence was within the
statutory range and, thus, within the “broad discretion” of the trial court.

The record also demonstrates that, prior to sentencing, the trial judge
addressed Nastatos’ “closed mind” argument. Specifically, the trial
Judge stated: “I do not think I have a closed mind. I do not think I’m
biased. I sentence people for murder, rapes, and all kinds of things. As
I said in a recent homicide case, . . . it’s not personal. It’s just business.
And in this case it’s just business.” These statements indicate the trial
Judge did not sentence Nastatos with a closed mind.

Ey * * *

Nastatos has not raised the threshold inference required by the first part
of the two-part inquiry [for evaluating Eighth Amendment claims of
disproportional sentencing]. The trial judge, considering the record
evidence and Pre—Sentence Report, found multiple aggravating factors,
including past violent behavior and a flagrant disregard for court orders
and incarceration. There is no indication that the trial judge’s sentence
was “grossly disproportional” to the crimes Nastatos committed when
considered with the aggravating factors.”

41 85 A.3d 682 (Del. 2014) (“[T]he trial judge as the gatekeeper of evidence may
admit the social media post when there is evidence sufficient to support a finding
by a reasonable juror that the proffered evidence is what its proponent claims it
to be. . . .[T]he jury will then decide whether to accept or reject the evidence.”)
(internal quotations removed).

2 Nastatos, 2014 WL 1512887, at *5-6.

17
G. POSTCONVICTION PROCEEDINGS

Nastatos filed a pro se motion for postconviction relief on April 8, 2015. The
Court thereafter granted his motion for appointment of counsel, and counsel was
appointed on March 24, 2016. Appointed Counsel then filed Defendant’s Amended
Motion for Postconviction Relief. On March 18, 2018, the Court denied Nastatos’
request to compel the State to produce Koval’s cell phone records in connection with
his motion. An evidentiary hearing was held on July 23, 2018, and both trial and
appellate counsel testified. The parties submitted written post-hearing arguments,

the last of which was the Defendant’s Reply filed on November 12, 2018.

Il. DISCUSSION

A. PROCEDURAL BARS UNDER RULE 61(i).

Before addressing the merits of a defendant’s motion for postconviction relief,
I must first apply the procedural bars of Superior Court Criminal Rule 61(i).“* Ifa
procedural bar exists, I will not address the merits of the postconviction claim.*
Under Delaware Superior Court Rules of Criminal Procedure, a motion for post-
conviction relief can be barred for time limitations, successive motions, procedural

default, or former adjudication.*© A motion exceeds time limitations if it is filed more

43 See, DT. 112, 117, 118.

44 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
45 Id.

46 Super. Ct. Crim. R. 61(i).

18
than one year after the conviction becomes final, or, if it asserts a retroactively
applicable right that is newly recognized after the judgment of conviction is final,
more than one year after the right was first recognized by the Supreme Court of
Delaware or the United States Supreme Court.*” Grounds for relief “not asserted in
the proceedings leading to the judgment of conviction” are barred as procedurally
defaulted unless the movant can show “cause for relief” and “prejudice from [the]
violation.”“® Grounds for relief formerly adjudicated in the case, including
“proceedings leading to the judgment of conviction, in an appeal, in a post-conviction
proceeding, or in a federal habeas corpus hearing” are barred.*” The bars to relief do
not apply either to a claim that the Court lacked jurisdiction or to a claim that pleads
with particularity that new evidence exists that creates a strong inference of actual
innocence,>° or that a new retroactively applied rule of constitutional law renders the
conviction invalid.*!

Most of Defendant’s claims are not procedurally barred. The Motion was
timely filed°? and it is his first postconviction motion.® Additionally, apart from one

claim of a Brady violation which is procedurally barred for failure to raise it below

47 Super. Ct. Crim. R. 61(i)(1).

48 Super. Ct. Crim. R. 61(1)(3).

49 Super. Ct. Crim. R. 61(1)(4).

50 Super. Ct. Crim. R. 61(4)(5).

51 Super. Ct. Crim. R. 61(d)(2)(i) and (ii).
52 Super. Ct. Crim. R. 61(i)(1).

3 Td. at 61(i)(2).

19
(see discussion, infra), Defendant’s motion is based on claims of ineffective
assistance of counsel, which can only be raised in a motion for postconviction relief.
The issues presented in this motion were not formerly adjudicated because ineffective
assistance of counsel claims are not addressed by the Delaware Supreme Court on
direct appeal.°? Therefore, the claims made in Defendant’s postconviction motion

(with exception of his Brady claim) are not procedurally barred.

B. NASTATOS HAS FAILED TO DEMONSTRATE THAT, BUT FOR THE CLAIMED
UNPROFESSIONAL ERRORS OF TRIAL COUNSEL, THE OUTCOME OF THE
TRIAL WOULD HAVE BEEN DIFFERENT.

Nastatos brings numerous claims of ineffective assistance of counsel, which
are assessed under the two-part standard established in Strickland v. Washington.»
Under Strickland, Defendant must show that (1) Trial Counsel’s representation “fell

below an objective standard of reasonableness;” and (2) the “deficient performance
prejudiced [his] defense.”°’ In considering the performance portion, the Court was
mindful that “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.”*® Strickland requires an

objective analysis, making every effort “to eliminate the distorting effects of

54 Id at 61(i)(3).

55 Id at 61(i)(4).

56 466 U.S. 668 (1984).
57 Td. at 687.

38 Id. at 690.

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hindsight” and to “indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”°? And, “strategic choices
about which lines of defense to pursue are owed deference commensurate with the
reasonableness of the professional judgments on which they are based.”

As to the prejudice portion, a petitioner must demonstrate that there exists a
reasonable probability that, but for counsel’s unprofessional errors, the outcome of
the trial would have been different.°' Even if counsel’s performance was
professionally unreasonable, it would not warrant setting aside the judgment of
conviction if the error had no effect on the judgment. A showing of prejudice
“requires more than a showing of theoretical possibility that the outcome was
affected.’””°?

Strickland teaches that there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in a particular order, or even to address both
portions of the inquiry if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

°° Td. at 689.

6° Td. at 681.

61 Id. at 687; Zebroski vy. State, 822 A.2d 1038, 1043 (Del. 2003); Wright v. State,
671 A.2d 1353, 1356 (Del. 1996).

62 Strickland, at 691.

63 Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992).

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Tawra er

deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, that course should be followed.“ In every case the court
should be concerned with whether, despite the strong presumption of reliability, the
result of the particular proceeding is unreliable because of a breakdown in the
adversarial process that our system counts on to produce just results.°

Trial counsel testified that he had strategic reasons for failing to pursue a
limiting instruction regarding Nastatos’ criminal and mental health history. Trial
counsel did not provide strategic reasons for failing to object to Officer Clarke’s
hearsay testimony,” for failing to object to the State’s direct examination of the
complaining witness,” for failing to object to the Court’s jury instruction on
inadmissible evidence,” for failing to review the complaining witness’ cell phone
records,” or for failing to file a motion for recusal of the judge before sentencing.”!
However, in light of the Court’s determination that Nastatos suffered no prejudice,
it need not evaluate trial counsel’s strategy under the performance portion of the

Strickland test.

64 Strickland, at 697.

65 Id. at 696.

66 Aff. of Trial Counsel 91, Dec. 22, 2016.
67 Aff. of Trial Counsel 92, Dec. 22, 2016.
68 Aff. of Trial Counsel 3, Dec. 22, 2016.
69 Aff. of Trial Counsel 74, Dec. 22, 2016.
70 Aff. of Trial Counsel 95, Dec. 22, 2016.
71 Aff. of Trial Counsel 48, Dec. 22, 2016.

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t. The BCRDC and NCBC Charges.

Despite the multiple counts charged in the Indictment, Nastatos was
charged with violations of only three separate criminal statutes, two of which require
proof of very similar elements. In order to be guilty of BCRDC a person must: (1)
knowingly; (2) breach a condition of bail; (3) while committed in default of bail; (4)
in connection with a felony.” Similarly, in order to be guilty of NCBC, a person
must: (1) knowingly; (2) breach a condition of release.”> For all of the charges for
both of these crimes, the condition of bail Nastatos was alleged to have breached
was having contact with Koval. For the BCRDC charges, there was no dispute that
Nastatos was confined in default of bail on a felony charge and that there was a no
contact order imposed for that felony charge. For the NCBC charges there was no
dispute that a condition of Nastatos’ release was that he have no contact with Koval.
The only issue for both the BCRDC and NCBC charges was whether Nastatos
knowingly had contact with Koval.

The evidence that Nastatos had contact with Koval was extensive and
incontrovertible. The content and context of the communications, all of which were

read to the jury by Koval during her testimony, clearly established that Nastatos was

72 11 Del. C. § 2109(c)(1)
73 11 Del. C. 2113(c).

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communicating with Koval in breach of the no contact orders.” In addition,
Nastatos admitted to Officer Clarke that he sent communications to Koval.”> Finally,
in Trial Counsel’s closing argument, which the motion does not argue failed
Strickland’s performance standard, counsel could only attempt to persuade the jury
to impose an artificially high bar for proof beyond a reasonable doubt, arguing that
the State’s investigation was inadequate because it did not seize Defendant’s
computer, contact Facebook, or check cell phone tower information to see if
Defendant’s cell phone pinged messages off of them.”° Apparently, the necessary
implication of that argument was that some unknown individual engaged in a lengthy
campaign of harassing Koval, while impersonating Nastatos for some unknown
reason. No reasonable juror would consider that explanation as raising a reasonable
doubt of Defendant’s guilt. Thus, it is clear to me that the jury’s verdicts on the
BCRDC and NCCB counts was not affected by knowing that Nastatos had been
incarcerated and had mental health issues, any alleged improper hearsay testimony
from Officer Clarke, any alleged improper questioning of the complaining witness
on direct examination, or the absence of an adequate limiting or cautionary

instruction. In short, the evidence against Nastatos on these counts was so strong

74 See generally, Dr. Exam. Alexandra Koval, 12/12/2012 at 26:16-201:8 and
12/13/2012 at 9:13-48:12.

75 12/18/2012 Re-Dir. Exam Off. Kerrie Clarke at 54:5-7; see also
State’s Ex. 41.

76 12/19/2012, Def. Summ. At 54:6-56;14.

24
that any the claimed performance errors by Trial Counsel had no bearing on the
jury’s verdicts. There is very little chance the outcome would have been different.
ii The Stalking Charge.

The Stalking charge alleged that Nastatos: (1) knowingly engaged in a course
of conduct; (2) directed at Koval; (3) that would cause a reasonable person to fear
physical injury, or suffer other significant mental anguish or distress; and (4) that
Nastatos violated a no contact order.’7. On this charge, the only real controverted
issue was the effect Nastatos’ conduct had on Koval. Accordingly, the jury was
instructed on the lesser included offense of Harassment.”® The jury was instructed
on two subsections of Harassment, the most pertinent being that a person is guilty of
Harassment when he: (1) communicates with another person by any form of written
or electronic communication; (2) in a manner which he knows; (3) is likely to cause
annoyance or alarm.” On this charge, Trial Counsel’s strategy and performance in
his closing argument, which again are not the subject of a postconviction challenge,
was twofold. First, he tried to convince the jury that Koval did not experience fear
of physical injury or suffer significant mental anguish or distress.®° In this effort, he

was successful, since Defendant was convicted of Harassment, and not the more

77 Re-Indictment, Count I, D.I. 57.

78 Jury Instructions, at 9-11, D.I. 49.

79 Id.

80 12/19/2019, Def. Summ., at 56:15-60:15.

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serious charge of Stalking. Second, he argued that the State had not proven that
Nastatos had been the one who communicated with Koval. For the same reasons
this effort had very little chance of success as to the BCRDC and NCCB, it had no
success with this charge either. Accordingly, Defendant has failed to meet the

prejudice portion of the Strickland test as well.

C. The Brady Claim.

Defendant’s next claim is that the State potentially committed a Brady
violation by not producing a copy of the victim’s cell phone records to Trial Counsel.
Coupled with this claim is Defendant’s assertion that Trial Counsel was ineffective

for failing to review the victim’s cell phone records.*!

Defendant argues that the State failed to produce a certified copy of Koval’s
cell phone records to Trial Counsel in violation of its obligations under Brady v.
Maryland.** However, as discussed above, Defendant’s claim is procedurally
barred under Superior Court Criminal Rule 61(i)(3) because he failed to assert this

ground for relief in the proceedings leading to his conviction.* He has also failed

81 With respect to the ineffective assistance of Trial Counsel claim based on his
failure to review the victim’s cell phone records, see discussion above.

82 373 US. 83 (1963).
83 Super. Ct. Crim. R. 61(i)(3).

26
to meet the miscarriage of justice exception, which requires a colorable Brady
claim.*4

Even if Defendant’s Brady claim was not procedurally barred by failing to
raise it below, there was no Brady violation by the State. To establish a Brady
violation, a defendant must show (i) evidence exists that is favorable to the accused
because it is either exculpatory or impeaching; (ii) that evidence is suppressed by
the State; and (iii) suppression prejudices the defendant. Although it is a violation
of a defendant’s due process rights for a prosecutor to withhold favorable evidence,
the prosecutor is only required to disclose evidence that “if suppressed, would
deprive the defendant of a fair trial.’®

First, the records were not Brady material because they did not contain any
exculpatory or impeaching material. Defendant’s claim is entirely speculative; just
because he alleges that the cell phone records might have contained Brady material
does not make it so. The State claims that the cell phone records contain none of the
text messages sent from Nastatos to Koval. Defendant has not rebutted this claim.
Because Nastatos has failed to show that the cell phone records contained Brady

material, I find that the State did not violate its duty under Brady.

84 Id. at 61(i)(5). See also, Johnson v. State, 129 A.3d 882, 2015 WL 8528889, at
*3 (Del. 2015) (TABLE).

® State v. Wright, 67 A.3d 319, 324 (Del. 2013).

86 United States v. Bagley, 473 U.S. 667, 675 (1985); Michael v. State, 529 A.2d
752, 755 (Del. 1987).

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Second, there was no Brady violation because Trial Counsel was given an
opportunity to review the records. The State argues it did not produce a copy of the
records to Trial Counsel because the records did not reference either of Nastatos’
telephone numbers, they would have been heavily redacted if produced, and the State
did not intend to use the records as evidence at trial. Nevertheless, the State made
the cell phone records available to Trial Counsel for his review. Thus, even if the
cell phone records contained exculpatory or impeachment material, the State did not
violate the rule because it did not “suppress” the evidence, as required under the
second Brady test, as the records were available to Trial Counsel.

Third, Nastatos cannot show he was prejudiced. He frames his claim as a
“potential” Brady violation but has failed to show that the material either qualified
as exculpatory Brady evidence, or that it was suppressed by the State. Accordingly,
I will not assume he suffered prejudice. Nastatos’ argument that the State committed
a Brady violation fails.®’

D. TRIAL COUNSEL AND APPELLATE COUNSEL WERE NOT INEFFECTIVE FOR

FAILING TO RAISE “CUMULATIVE DUE PROCESS ERROR” AT TRIAL AND ON
APPEAL.

87 In his motion, Defendant also asked the Court to require the State to produce the
victim’s cell phone records during the postconviction proceedings so that Appointed
Counsel could determine the merits of Nastatos’ “potential Brady” and ineffective
assistance of counsel claims. The Court denied that request by letter dated March
15, 2018, holding that Defendant failed to show good cause.

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Defendant also argues that his constitutional right to a fair trial was denied
due to cumulative error, and that both Trial Counsel and Appellate Counsel rendered
ineffective assistance of counsel because they failed to raise this issue at trial and on
appeal, respectively.

Because there was no factual claim of error directed at Trial Counsel, Trial
Counsel made no comment on this claim. Defendant has shown me no prejudicial
error with respect to Trial Counsel (see Strickland discussion, above), and in the
absence of proven error his claim must fail.

Nastatos next claims that his Appellate Counsel was ineffective for failing to
argue “cumulative due process error” on appeal. This claim fails under both portions
of the Strickland test.

First, the decision as to which arguments to raise on appeal is a strategic
decision. Indeed, in her affidavit, Appellate Counsel states that she did not raise
cumulative error on appeal because based on her “experience ... there is little to no
chance of success of a ‘cumulative error’ argument that is based on issues that were
not preserved at trial.”®® Thus, Appellate Counsel’s choice not to raise cumulative
error on appeal was reasonable under the performance portion of the Strickland test.
Appellate Counsel’s tactical decision not to argue cumulative error on appeal does

not amount to ineffective assistance of counsel.

88 Aff. of Appellate Counsel 915, Aug. 7, 2017.
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Second, Defendant cannot show prejudice; i.e., that but for the failure to argue
cumulative error on appeal, the result of the appeal would have been different. Thus,
Appellate Counsel’s choice not to raise cumulative error on appeal does not run afoul

of the prejudice portion of the Strickland test.

E. DEFENDANT IS NOT ENTITLED TO A NEW SENTENCING HEARING.

Defendant also argues that he is entitled to a “new sentencing hearing before
a different judge” because “the trial court sentenced Nastatos with a closed mind and
based on impermissible and erroneous facts.”®? The State opposes resentencing,
arguing that this argument is procedurally barred under Superior Court Criminal
Rule 61(i)(4) (former adjudication) as this precise issue was raised on direct appeal
and rejected by the Supreme Court.””. Defendant attempts to distinguish between
the “closed mind” argument and the recusal argument (see below). I need not
address that purported distinction because the Supreme Court has already settled the
“closed mind” argument.”' I reject the recusal argument as to me it is the identical

argument renamed. There is no merit to it whatever label it is given.

F, DEFENDANT’S REQUEST FOR AN EVIDENTIARY HEARING Is Moot.

89 Aff. of Appellate Counsel 93, Aug. 7, 2017.

°° See Nastatos v. State, 921 A.3d 562 (Del. 2014).
91 Id.

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Finally, Nastatos argues that a Rule 61(h)” evidentiary hearing is required “to
fully develop the factual record in light of the claims raised in this motion” and in
order to comply with due process. This is mooted by the fact that the Court held
such an evidentiary hearing on May 14, 2018.

IV. CONCLUSION
Therefore, for the foregoing reasons, Defendant Anthony Nastatos’ motion

for postconviction relief is DENIED.

92 See Super. Ct. Crim. R. 61(h).
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