Morris v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANTHONY E. MORRIS, §
§ No. 394, 2018
Defendant Below, §
Appellant, § Court Below: Superior Court of
§ the State of Delaware
v. §
§ Cr. ID Nos. 1702013025 and
STATE OF DELAWARE, § 1702012586
§
Plaintiff Below, §
Appellee. §

Submitted: March 27, 2019
Decided: May 13, 2019

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

ORDER

On this 13th day of May 2019, upon consideration of the parties’ briefs and the

record on appeal, it appears that:

(1) The appellant, Anthony E. Morris, was found guilty by a Superior Court

jury of several crimes that occurred during two related incidents on February 18,

2017—one in the morning and the other later in the day following his release on bail

from the first incident. The same jury also found him guilty of violating the terms

of his bond and engaging in witness intimidation while he was in in jail awaiting

trial for the February 18 incidents. On appeal, Morris asserts five claims. The

first pertains to his conviction for the offense of home invasion. The home-
invasion charge arose from the second February 18 incident. He contends the

Superior Court erred by not setting aside his conviction for that offense because the

jury was unable to agree on a verdict on a predicate offense of rape in the first degree.

Second, he contends the Superior Court erred in failing to hold a proof-positive

hearing under 11 Del. C. § 2116 in connection with his bail on the first February 18

incident after he was arrested for the second February 18 incident. Third, he

contends the Superior Court erred in not suppressing recordings of phone

conversations he had while in prison awaiting trial because the subpoena used to

obtain the recordings was overly broad and invalid under the United States and

Delaware Constitutions. Fourth, he contends the Superior Court erred in admitting

these recordings into evidence because the State did not lay a proper foundation for

their admission. Finally, he contends the Superior Court erred in denying his

motion for a mistrial because delayed disclosure of Brady1 material prejudiced his

defense. We reject all of Morris’s contentions and affirm.

(2) On the morning of February 18, 2017, Seaford Police Officer Kyle

Jones reported to a motel to investigate a domestic incident occurring in the parking

lot. When Officer Jones drove to the motel’s rear parking lot he observed Morris

standing near a vehicle. Once Officer Jones pulled up behind the rear of the

vehicle, he observed Morris standing between the open driver’s door and the vehicle

1
Brady v. Maryland, 373 U.S. 83 (1963).
2
and Jennifer Middleton in the driver’s seat with her legs pointed out. According to

Officer Jones, “Morris appeared to be standing in between her legs so that she

couldn’t get out.”2 As Officer Jones approached, Morris looked at him and then

“looked back at Ms. Middleton and struck her with an open hand,” hitting her “[i]n

her face.”3 Jones immediately pulled Morris off Middleton and placed him under

arrest.

(3) Morris was arraigned via a video phone, and the judge imposed

unsecured bail with a condition that Morris have no contact with Middleton. At

12:14 p.m., after the no-contact order was explained to Morris and he indicated he

understood it, Morris was released from the Seaford Police Department. Officer

Jones called Middleton, who had returned to her apartment in Laurel, and informed

her of Morris’s release and the no-contact order.

(4) The second incident occurred later that same day, shortly after Morris

was released. Morris went to Middleton’s apartment and began kicking her front

door and demanding to be let inside. Middleton did not want him in her apartment,

but she also did not want him to kick in her door. Concerned with the noise and

afraid someone might report the incident to her landlord, she opened the door to try

to “diffuse the situation.”4

2
App. to Appellee’s Answering Br. at B34.
3
Id.
4
App. to Appellant’s Opening Br. at A93.
3
 (5) Once inside her apartment, Morris accused her of getting him in trouble

and started punching her. Middleton “tried to run upstairs so [she] could lock the

door,” but Morris grabbed her and threw her on the couch. 5 According to

Middleton, he then took off her underwear and pulled down his pants; she repeatedly

told him no and asked him to stop; she tried to get up, but he was on top of her

holding her down; and he then began having sexual intercourse with her, while she

continued telling him to stop. When he finished, she got up and ran upstairs to the

bathroom, locked the door, and took a bath. Morris then left her apartment.

(6) Following her bath, Middleton called the police to report the incident.

Police officers subsequently arrived at her apartment, and Middleton was taken to

the hospital. At the hospital, a nurse conducted a forensic examination. As part

of the examination, the nurse photographed Middleton’s injuries and conducted a

vaginal examination, during which she observed “a copious amount of white fluid

located in her vaginal wall” that was “consist [sic] with semen.”6 According to the

medical records, Middleton was examined at 3:15 p.m. Later that day, at

approximately 7:45 p.m., after Middleton was released from the hospital, Detective

Christopher Story, the chief investigating officer, went to Middleton’s apartment to

take photographs of the scene.

5
Id. at A100.
6
App. to Appellee’s Answering Br. at B65.
4
 (7) For the events that occurred on February 18, Morris was indicted on

charges of home invasion, rape in the first degree, strangulation, assault in the second

degree, two counts of noncompliance with bond, assault in the third degree,

kidnapping in the first degree, misdemeanor theft, and misdemeanor criminal

mischief.

(8) Because at least one charge from each of the February 18 incidents was

a violent felony, 11 Del. C. § 2116 came into play. That section applies if a person

is arrested for a violent felony and released on bail and, while released, is arrested

for a second violent felony. It provides that the person’s bail on the original charge

“shall be temporarily revoked by any court” becoming aware that the person is

subject to § 2116.7 It further provides that the person “shall be brought before the

Superior Court.”8 If, after a hearing, the Superior Court finds that there is “proof

positive or presumption great” that the person committed the subsequent offense, the

court “shall” then revoke bail on the original offense.9 If that occurs, the court must

then set cash-only bail on the original offense in an amount at least twice as much

as the original bail.10

7
11 Del. C. § 2116(c).
8
Id. § 2116(b).
9
Id.
10
Id. § 2116(d).
5
 (9) A proof-positive hearing was scheduled for Morris to be held on March

16, 2017. On that day Morris appeared with counsel for the hearing. The State

also appeared. Rather than proceeding directly with the proof-positive hearing, the

parties and the court discussed the fact that some of the indicted charges arising out

of the first February 18 incident differed from the charges that Morris had been

arrested for and that bail had not yet been set on these different charges. The

Superior Court then proceeded to set bail on those charges for which bail needed to

be set. At the conclusion of that process, Morris was subject to bail of $205,000,

cash only, for the charges that differed in the indictment and for the charges arising

out of the second February 18 incident. The State then indicated its satisfaction

with bail and waived the proof-positive hearing. Morris had subpoenaed

Middleton to appear for the hearing with the intent of calling her as a witness and

examining her about the incidents in question. His counsel insisted that the hearing

go forward. Since the State was content with bail without a § 2116 hearing,

however, the Court decided that there was no need for a hearing, and none was held.

Morris’s bail for the original charges was not increased.

(10) While at Sussex Correctional Institution (SCI) awaiting trial, Morris

made two calls to Middleton, indirectly through a third party, in violation of the no-

contact order. The State issued an Attorney General subpoena to SCI for “all phone

recordings for inmate Anthony Morris as well as any calls placed to [two specific

6
phone numbers] from February 18, 2017 thru present [May 1, 2017].” 11 SCI

produced all of Morris’s recorded phone conversations as requested. Morris,

arguing that the Attorney General subpoena was overbroad, moved to suppress the

recordings. The Superior Court denied his motion.

(11) Following a review of the recordings, Morris was re-indicted to add

four additional counts of noncompliance with bond, two counts of act of

intimidation, and one count of conspiracy in the second degree for the

communications he had with Middleton (and others) while he was in prison awaiting

trial.

(12) At trial, the State sought to introduce the recordings of the phone calls

Morris made while in prison that related to Morris’s efforts to get Middleton to drop

the charges. Sergeant Brian Hubbs, a facility investigator at SCI who handles the

subpoena processing for SCI’s inmate telephone system, testified as to the process

of logging inmates’ calls based on each inmate’s State Bureau of Investigation (SBI)

number and the process by which an inmate makes a call, explaining that the inmate

must first enter his unique SBI number and then verify his voice with the system

before placing a call.12 He testified that Morris’s call log, which was admitted into

evidence, was accurate and automatically generated by the computer based on

11
App. to Appellant’s Opening Br. at A63.
12
SCI houses an all-male population.
7
Morris’s SBI number and the requested date range. He further testified that the log

“is a que list file of a series of telephone calls that were burnt at the State’s request

under subpoena”13 and that he “provide[d] recordings of the calls to the State.”14

Middleton testified as to each recording to identify Morris as the caller. As

mentioned, two of the calls were to a third party who then added Middleton to the

call. Since she was a party to those two phone calls, she identified two of the

recordings as those two calls. Although her voice was not on the other recordings,

she was able to identify the speakers on four subsequent recordings as being Morris

and his friend Jeremiah Handy because she recognized their voices.

(13) Morris objected to the admission of these recordings. He argued that

there was not a proper foundation because the State had not shown that the

recordings had not been altered. The Superior Court overruled his objection

following a voir dire of Middleton. It found that her testimony, which established

that Morris was the originator of each call and that the other party to each call (other

than herself) was Handy, paired with Sergeant Hubbs’s testimony regarding the

prison phone system, was sufficient to support a finding that the recordings were

what the State claimed them to be and, therefore, admissible under Delaware Rule

of Evidence 901(a).

13
App. to Appellant’s Opening Br. at A134.
14
Id. at A137.
8
 (14) During his testimony, Detective Story revealed for the first time, on

cross-examination, that he had spoken to two individuals who were standing outside,

across the courtyard from Middleton’s apartment when he went there to take pictures

the evening after the second February 18 incident. He asked them whether they

“heard or saw anything.”15 He testified that they told him they had not seen or

heard anything and that they said “[t]hey didn’t know nothing [sic],” although he

could not recall if he had specified a time frame when he asked whether they had

seen or heard anything. 16 He said that the response of the two individuals was

common practice and that “in the apartment complexes in Laurel, nobody talks to

the cops. So being in uniform, I asked, and nobody saw anything.”17 He did not

make a report of this contact or the names of the individuals.

(15) Following the detective’s testimony, Morris moved for a mistrial on the

grounds that the statements of the two individuals that they had not seen or heard

anything was undisclosed Brady material. The Superior Court denied this motion,

finding that Morris was able to make effective use of the evidence because it was

before the jury and counsel would be able to include it in Morris’s closing argument.

Then, citing Deberry v. State,18 Morris sought “an instruction that the jury has to

15
Id. at A157.
16
Id. at A157, A156-57.
17
Id. at A156.
18
457 A.2d 744 (Del. 1983).
9
accept that neighbors that were there didn’t hear anything or didn’t see anything.”19

The Superior Court denied the request.

(16) During his closing argument, Morris highlighted the fact that the two

individuals told Detective Story the evening of the second incident that they had not

seen or heard anything and that he failed to note this in his report: “They said, We

didn’t see anything, we didn’t hear anything. He characterized that—instead of

making a report of it and taking the people’s names, he characterized that as they

just don’t want to cooperate with the police. I won’t make a report of it. I won’t

do anything.”20

(17) At the conclusion of the trial, the jury failed to reach a verdict on the

charge of rape in the first degree, found Morris not guilty of strangulation, and found

him guilty of home invasion and the rest of the indicted charges.21

(18) Morris’s first claim on appeal is that the Superior Court erred in not

vacating, or setting aside, his conviction for home invasion. He argues that a

finding of guilt on the rape charge was a predicate to a finding of guilt on the home-

invasion charge. Since the jury was unable to reach a verdict on the rape charge,

he argues, an element of the home-invasion charge was not proved and the verdicts

19
App. to Appellant’s Opening Br. at A251.
20
App. to Appellee’s Answering Br. at B89.
21
The court had (following the close of the State’s case) acquitted Morris of kidnapping and
reduced the charge of assault in the second degree to assault in the third degree.
10
were inconsistent. For these reasons, he argues, the conviction for home invasion

must be vacated. Whether a jury’s guilty verdict on the home-invasion charge is

inconsistent with its failure to reach a verdict on the rape charge is a question of law

subject to de novo review.22

(19) There are a number of elements to the crime of home invasion, but for

purposes of this appeal it is sufficient to state that a home invasion occurs when a

person enters or remains unlawfully in a dwelling with the intent to commit a violent

felony therein, and while in the dwelling commits or attempts to commit one of six

designated felonies.23 The indictment in Morris’s case charged him, in pertinent

part, with having entered or remained in Middleton’s apartment with the intent to

commit a violent felony therein, and when in the dwelling, “the defendant committed

or attempted to commit the felony of Rape.”24 Morris asserts that his conviction

for home invasion should have been vacated for two reasons. First, he contends

that it should have been vacated because the jury was unable to reach a verdict on

the predicate charge of rape and the State’s evidence at trial was insufficient to

support a conviction of attempted rape. Second, and alternatively, he contends that

22
Van Vilet v. State, 148 A.3d 257, 2016 WL 4978436, at *3 (Del. Sept. 16, 2016) (Table) (citing
Priest v. State, 879 A.2d 575, 580 (Del. 2005) (en banc)).
23
11 Del. C. § 826A(a).
24
App. to Appellant’s Opening Br. at A77.
11
it should have been vacated because the jury instructions did not provide adequate

legal guidance as to the elements of an attempt.

(20) It should first be noted that a conviction for rape or attempted rape is

not an element of the offense of home invasion. The element of home invasion in

issue is the fact of the commission or attempted commission of rape. Both of

Morris’s arguments as to this issue fail for the same reason: the rule of jury lenity.

“Under the rule of jury lenity, this Court may uphold a conviction that is inconsistent

with another jury verdict if there is legally sufficient evidence to justify the

conviction.” 25 Here, the parties focus exclusively on attempted rape, but this

misses the point. Middleton testified that Morris actually raped her. Her

testimony was supported by the pictures of her injuries taken at the hospital and by

the nurse’s testimony that there was a fluid consistent with semen in her vagina.

Viewed in the light most favorable to the State, this evidence establishes that a

rational fact finder could have found Morris guilty beyond a reasonable doubt of

home invasion.26 Because this evidence is sufficient to sustain the conviction of

home invasion, any inconsistency between the guilty verdict on the charge of home

25
King v. State, 126 A.3d 631, 2015 WL 5168249, at *2 (Del. Aug. 26, 2015) (Table) (citing
Tilden v. State, 513 A.2d 1302, 1306-07 (Del. 1986) (en banc)); see also United States v. Powell,
469 U.S. 57, 65-67 (1984).
26
See Tilden, 513 A.2d at 1307; see also Powell, 469 U.S. at 67 (“Sufficiency-of-the evidence
review involves assessment by the courts of whether the evidence adduced at trial could support
any rational determination of guilty beyond a reasonable doubt. This review should be
independent of the jury’s determination that evidence on another count was insufficient.”
(citations omitted)).
12
invasion and the jury’s failure to agree on the charge of rape in the first degree is of

no avail to Morris, and there is no need to consider the sufficiency of the evidence

or the instructions as to attempted rape.

(21) Morris’s second argument is that the Superior Court erred in denying

his request that the court proceed with the proof-positive bail hearing despite the

State waiving its request that his bail for the first February 18 incident be revoked

and that bail at least twice the amount originally set be imposed for the original

charges. He contends that a proof-positive hearing was mandatory because the

statute, 11 Del. C. § 2116(b), provides that the defendant “shall be brought before

the Superior Court.” We review questions of statutory interpretation de novo.27

(22) The statute provides that “if after release [on the first offense] the

defendant is charged by arrest . . . with the commission of a subsequent offense, that

defendant shall be brought before the Superior Court.”28 It then provides, “If after

a hearing, the Superior Court finds proof positive or presumption great that the

defendant has committed [the] subsequent offense during such period of release . . .

the Court shall revoke” the defendant’s bail on the original offense29 and impose a

cash-only bail at least twice the amount of the bail originally set.30 Morris was

27
Pardo v. State, 160 A.3d 1136, 1142 (Del. 2017).
28
11 Del. C. § 2116(b).
29
Id.
30
Id. § 2116(d).
13
“brought before the Superior Court”31 on the day his proof-positive hearing was

scheduled. But once the court set bail for the charges alleged to have occurred after

the first February 18 incident and for the charges from the first incident that differed

in the indictment, the State was content with not seeking to have Morris’s bail

increased for the unchanged first-incident charges. This eliminated the need to

have the proof-positive hearing. Section 2116 does not create a right of discovery

for a defendant. The Superior Court did not err in deciding that the hearing was

not necessary.

(23) Morris’s third argument is that the Superior Court erred in not

suppressing the recordings of Morris’s prison phone calls. He contends that the

subpoena used to obtain the recordings violated his federal and state constitutional

rights because it required the production of materials that were not relevant to the

investigation and covered an unreasonable period of time. We review alleged

constitutional violations de novo.32

(24) “The Fourth Amendment to the United States Constitution requires that

a subpoena for the seizure of documents be reasonable.” 33 To be reasonable, a

subpoena must: (1) “specify the materials to be produced with reasonable

31
Id. § 2116(b).
32
Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010) (en banc).
33
Johnson v. State, 983 A.2d 904, 921 (Del. 2009) (en banc); see also Okla. Press Publ’g Co. v.
Walling, 327 U.S. 186, 208-09 (1946).
14
particularity,” (2) “require the production only of materials relevant to the

investigation,” and (3) “not cover an unreasonable amount of time.”34

(25) Morris takes issue with the second and third requirements. He argues

that the subpoena required the production of nonrelevant material because it required

production of all of Morris’s phone recordings as opposed to just the two calls he

arranged with Middleton. He argues that the subpoena covered an unreasonable

period of time for essentially the same reason—“[t]he State ha[d] no reasonable basis

to believe that all of Mr. Morris’s conversations while he was in prison from

February 18, 2017 through May 1, 2017 somehow related to this singular alleged

contact of [sic] March 8, 2017.”35

(26) We find that the subpoena was reasonable. First, the subpoena did not

require the production of material that was not relevant to the investigation of

whether Morris violated the no-contact order or was engaged in witness intimidation.

There was evidence that Morris had attempted to intimidate Middleton by calls

through a third party to her, and in any event, these calls violated the no-contact

order. Because Morris could not contact Middleton directly (her phone number

was not on his permitted call list) and, therefore, could contact her only indirectly

through a third party, the State had a reasonable basis to suspect that he might have

34
Johnson, 983 A.2d at 921.
35
Appellant’s Opening Br. at 26.
15
tried to contact her at other times through different third parties (and thus different

phone numbers) and that he might have tried to convince someone to intimidate

Middleton in person, since he could not do so while in prison.36 In addition, the

time span covered by the subpoena was reasonable. It was reasonable to require

the production of all of the recordings of the phone calls Morris made during the

entirety of his pretrial incarceration to ascertain whether he had contact with

Middleton either directly or indirectly.37 Because the subpoena was reasonable,

Morris’s constitutional rights were not violated and the Superior Court did not err in

denying his motion to suppress.

(27) Morris’s fourth argument is that the Superior Court erred in admitting

into evidence the recordings of his prison phone calls because, he contends, there

was not a proper foundation. We review a trial court’s evidentiary rulings for abuse

of discretion. 38 “An abuse of discretion occurs when a court has exceeded the

bounds of reason in light of the circumstances, or so ignored recognized rules of law

or practice so as to produce injustice.”39

36
See Johnson, 983 A.2d at 921-22 (rejecting Johnson’s argument that the subpoena was overly
broad because it required production of all the letters he wrote while in prison instead of just those
he sent directly to the victim he was suspected of attempting to intimidate).
37
See id. at 922 (“It was reasonable to require the production of all letters that Johnson sent during
the entirety of his incarceration pending trial in order to ascertain whether he had contact with
Truitt [the victim and key witness] either directly or indirectly.”).
38
McNair v. State, 990 A.2d 398, 401 (Del. 2010).
39
Id.
16
 (28) Delaware Rule of Evidence 901 governs the authentication of evidence.

Under that rule, “the proponent must produce evidence sufficient to support a finding

that the item is what the proponent claims it is.”40 “The burden of authentication is

easily met. The State must establish a rational basis from which the jury could

conclude that the evidence is connected with the defendant.”41

(29) The Superior Court acted within its discretion when it determined that

the State had made a showing sufficient to support a finding that the recordings were

the actual recordings of Morris’s phone calls. The court considered Sergeant

Hubbs’s testimony explaining how the telephone system functions, including its

need to verify the inmate’s voice before placing a call, how he obtained the records

and recordings using Morris’s SBI number, and how the call log was connected to

the recordings he gave to the State. The court also considered Middleton’s

testimony identifying Morris’s voice at the beginning of each recording during the

voice-verification process and identifying the other person’s voice as Morris’s

friend.

(30) Morris primarily argues on appeal (as he did at the trial court) that there

was no positive testimony as to whether the recordings had been altered. He

contends that Sergeant Hubbs did not testify as to whether the recordings had been

40
D.R.E. 901(a).
41
Cabrera v. State, 840 A.2d 1256, 1264-65 (Del. 2004) (en banc).
17
altered in any way and that Middleton did not (and could not) know whether the

recordings of the beginning portions of the two phone calls involving her had been

altered (those portions before she was merged in by Morris’s friend) or whether the

other four recordings, which did not involve her, had been altered. He fails,

however, to point to anything that suggests the recordings were altered. Although

the State had the burden of establishing authenticity and admissibility under Rule

901, absent some indication that the recordings had been impermissibly altered,42

the State was not required to present affirmative evidence that they were unaltered.

Authentication of an item offered into evidence does not require the offering party

to prove a negative. Accordingly, the Superior Court did not abuse its discretion

in finding that the State had produced evidence sufficient to support a finding that

these recordings were the actual recordings of Morris’s prison phone calls.

(31) Morris’s final argument is that the Superior Court erred in denying his

motion for a mistrial on the grounds that the State failed to disclose Brady 43

evidence that materially prejudiced his defense. This Court reviews claims of

Brady violations de novo.44 When delayed disclosure of Brady information occurs,

it must be determined “whether the disclosure of the cumulative exculpatory and

42
There were some redactions from the recordings, but these redactions were done either with
Morris’s consent or at his direction.
43
Brady, 373 U.S. 83.
44
Robinson v. State, 149 A.3d 518, 2016 WL 5957289, at *2 (Del. Oct. 13, 2016) (Table).
18
impeachment evidence withheld by the State creates a reasonable probability of a

different outcome.”45 As part of this analysis, we consider whether the delayed

disclosure precluded effective use of the information at trial.46

(32) Morris contends that he was unable to effectively use the fact that the

two individuals told Detective Story the evening of the second incident that they had

not seen or heard anything and that “[t]hey didn’t know nothing [sic].”47 He argues

that this delayed disclosure prejudiced his defense because it impeached Middleton’s

testimony that Morris was banging on her door and yelling loudly. He argues that

he was further prejudiced because Detective Story did not just reiterate what these

people said but also characterized their remarks by saying that “in the apartment

complexes in Laurel, nobody talks to the cops. So being in uniform, I asked, and

nobody saw anything.”48 For these reasons, Morris contends that he “was at least

entitled to a Deberry instruction that there were two witnesses that were present but

did not hear or see Morris at Middleton’s apartment, nor hear Morris yelling and

screaming or see him kicking her door on February 18, 2017.”49

(33) The State concedes that there was a delayed disclosure of Brady

material but argues that because Morris was able to—and indeed did—make

45
Wright v. State, 91 A.3d 972, 993 (Del. 2014).
46
White v. State, 816 A.2d 776, 778 (Del. 2003).
47
App. to Appellant’s Opening Br. at A157.
48
Id. at A156.
49
Appellant’s Opening Br. at 34, 33-34 (citing Deberry, 457 A.2d at 751).
19
effective use of the information, he suffered no prejudice and reversal is

inappropriate.

(34) It is not clear that this information actually impeached Middleton’s

testimony. Detective Story questioned these individuals more than four hours after

the incident had occurred, and there was no indication that these individuals were

present at the time the incident occurred. Moreover, the Brady material did not

involve possible testimony that was likely, if given, to create a reasonable probability

of a different outcome. For starters, the two witnesses would have had to have been

at the apartment complex at the exact time of the relatively brief incident at the door

in the early afternoon. At best, if they were, they would have said that they did not

hear or observe anything unusual. But, of course, the victim herself said she let

Morris in because she did not want him to continue making a racket that would

disturb neighbors and lead to a complaint to her landlord. Not only that, there was

photographic evidence of the victim’s door that depict muddy footprints, 50 which

would be an oddment if Morris was not kicking it as the victim said. And there was

evidence that Morris obsessively called the victim in violation of a no-contact order

during the period before the alleged crimes at her apartment. 51 Finally, the

objective evidence of physical force used against the victim—which included

50
See App. to Appellant’s Opening Br. at A141–42.
51
See App. to Appellee’s Answering Br. at B74.
20
photographs of bruises on her arms and face, a swollen eye, and swollen lips 52—is

very strong. For all these reasons, there is not a reasonable probability that the

result would have been different had the officer disclosed this information in a timely

manner.53 The Superior Court did not err in denying Morris’s motion for a mistrial

or in refusing to give a Deberry instruction. 54 Accordingly, reversal is not

warranted.55

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr.
Justice

52
See id. at B58–64.
53
We are reluctant to conclude that the defense was able to make effective use of the fact that the
two witnesses say they saw or heard nothing for a simple reason. Detective Story injected his
own opinion that the witnesses said that, not because it was true, but because people in that
neighborhood will not talk to the police. This opinion testimony was arguably not proper, but in
any event, it makes it difficult for us to conclude that the defense could make any effective use of
the witnesses’ ignorance of any loud incident at the complex that day
54
See Robinson, 2016 WL 5957289, at *3 (finding that the delayed disclosure of a prior
inconsistent statement was not a Brady violation requiring reversal because the defendant had
made effective use of the statement by cross-examining the witness about it and relying on it during
his closing argument).
55
See White, 816 A.2d at 778 (“When a defendant is confronted with delayed disclosure of Brady
material, reversal will be granted only if the defendant was denied the opportunity to use the
material effectively.” (internal quotation marks omitted)).
21