Wharton v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

DAI’YANN WHARTON, §
§
§
Defendant-Below, § No. 548, 2019
Appellant, §
§
§
v. § Court Below: Superior Court
§ of the State of Delaware
§
§
STATE OF DELAWARE, §
§ C.A. No. 1705016524 A&B
§
Plaintiff-Below, §
Appellee. §
§

Submitted: November 4, 2020
Decided: January 19, 2021

Before VALIHURA, TRAYNOR, and MONTGOMERY-REEVES, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Elise K. Wolpert, Esquire (argued), Eugene J. Maurer, Jr., Esquire, Wilmington, Delaware,
for Appellant.

Andrew J. Vella, Esquire (argued), Delaware Department of Justice, Wilmington,
Delaware for Appellee.
VALIHURA, Justice:

In a bench trial beginning on June 19, 2019, the Superior Court found Dai’yann

Wharton guilty of several charges, led by a count of Murder in the First Degree for the

slaying of Yaseem Powell. Wharton seeks reversal of his conviction because the State

identified a group of highly incriminating text messages less than two weeks prior to trial,

though the messages themselves had been contained in a digital discovery disclosure made

by the State to Wharton more than a year earlier.

Because of the State’s earlier disclosure, and because we reject Wharton’s assertions

that the State engaged in any discovery violations or other misconduct, we hold that the

Superior Court was within its discretion to deny Wharton’s motion to exclude the text

messages. Accordingly, we AFFIRM the Superior Court’s conviction and judgment of

sentence.

I. Statement of Facts

Shortly after 4:00 p.m. on March 28, 2017, Officer Brenda Merced of the

Wilmington Police Department responded to reports of a shooting in the Riverside

neighborhood of Wilmington.1 Within minutes of the call, Officer Merced arrived on the

scene, and found Yaseem Powell wounded on the ground. Officer Merced immediately

1
App. to Op Br. at A154 (Testimony of Officer Brenda Merced).

2
began performing first aid.2 While she did so, Powell’s cell phone fell out of his pocket.3

Powell later died of a gunshot to his head.4

Police investigators subsequently recovered shell casings 175 feet away from where

Powell lay.5 They also recovered the contents of Powell’s cell phone.6 Shortly before the

shooting, Powell communicated with an associate on a cell phone app that he was walking

behind Dai’yann Wharton and Benjamin Smith.7 Surveillance footage showed instead that

Powell was being followed rather than following others.8

Hours later, Andrew Ervin was shot in the foot on Heald Street.9 While hospitalized,

Ervin told police he was the victim of an armed robbery.10 Ervin asserted that a firearm

recovered at the site of his shooting belonged to one of the robbers whom Ervin had

disarmed.11 Ballistic evidence showed the recovered weapon had fired the shell casings

recovered near the Powell murder.12

2
Id. at A155.
3
Id.
4
Id. at A167 (Testimony of Detective MacKenzie Kirlin).
5
Id. at A177 (Testimony of Detective Hugh Stephey).
6
Id. at A166 (Testimony of Detective MacKenzie Kirlin).
7
Id. at A220 (Testimony of Detective Robert Fox).
8
Id. at A230–31.
9
Id. at A156–57, 161 (Testimony of Andrew Ervin).
10
Id. at A162. Although Ervin was an uncooperative witness and denied almost all memory of
the events surrounding the shooting, he confirmed the authenticity of a video recording of his
conversation with police. Id.
11
Id.
12
Id. at A173 (Testimony of Detective MacKenzie Kirlin); A204 (Testimony of Robert Freese).

3
 According to Smith, he and Wharton were members of the gang “Shoot to Kill”

(“STK”), which formed after the murder of Smith’s friend Jordan Ellerby in 2015.13 The

gang’s purpose was to obtain revenge against another gang, Only My Brothers (“OMB”),

for that killing.14 Smith claims he and Wharton waited outside of the Job Corps building

for Powell to finish work, intending to shoot him.15 Smith asserts that Wharton shot Powell

with Smith’s pistol, then returned the weapon. Smith further recounts that he was with

Ervin when Ervin was shot in the foot a few hours later. Smith described the shooting as

a reprisal attack for the Powell slaying, and claims he gave his gun to Ervin before they

stepped outside and were attacked. According to Smith, Ervin created the story of being

robbed while alone and disarming one of his assailants to disguise Smith’s ownership of

and connection to the firearm.16

Hours after Powell’s death and Ervin’s shooting, Isaiah Baird and Wharton

communicated (“Incriminating Messages”) through a cell phone messaging app.17 In the

first part of this conversation, the two discuss Ervin’s shooting.18 Baird told Wharton that

13
Id. at A233 (Testimony of Benjamin Smith). Smith testified pursuant to a plea agreement for
which he received a five-year sentence for manslaughter and conspiracy for his actions in relation
to Powell’s death. Id. at A244–45.
14
Id. at A233–34.
15
Id. at A239.
16
Id. at A244.
17
Id. at A109–13 (Cell Phone Extraction). The Incriminating Messages begin at 4:45 a.m. EDT
on March 29, 2017 and are between a user “isaiahbaird0@gmail.com” and “Self.” “Self Made” is
Wharton’s name on social media. Id. at A236 (Testimony of Benjamin Smith).
18
Id. at A217–18 (Testimony of Detective Robert Fox); see also id. at A109 (Cell Phone
Extraction):
“isaiahbaird0@gmail.com”: Bro they shot twin
4
Ervin had been shot, and that police had recovered a weapon that Ervin had dropped.19

Wharton expressed apprehension because that weapon had been used to murder someone20

and asked Baird, speaking of the attack on Ervin, if “U think it cus I hit there folks??”21

Two days later, the conversation continued and Wharton discussed with Baird that

a third individual, Aubrey, was telling people that “I killed boul.”22 When Baird asked

why Wharton told Aubrey, Wharton asserted “I didn’t tell him shit.”23 When Baird asked

how Aubrey knew, Wharton explained “before I did it we was all out [in] front of Twin

crib [Ervin’s home].”24

“Self”: I know
Ervin has a twin sibling, Id. at A159 (Testimony of Andrew Ervin), and is nicknamed Twin. Id.
at A238 (Testimony of Benjamin Smith).
19
Id. at A217 (Testimony of Detective Robert Fox); see also id. at A109 (Cell Phone Extraction):
“Self”: How 12 get the pole?
“isaiahbaird0@gmail.com”: Twin dropped it.
“Self”: Omg.
“Twelve” is a slang term for the police. Id. at A217 (Testimony of Detective Robert Fox). “Pole”
is a common term for a firearm. Id.
20
See id. at A109–110 (Cell Phone Extraction):
“Self”: How and it’s already a body on it tf
“isaiahbaird0@gmail.com”: Idk bro facts
“Self”: I’m scar dawg
“isaiahbaird0@gmail.com”: Bro just be cool you going be straight.
21
Id. at A110.
22
Id. at A218 (Testimony of Detective Robert Fox); A110–11 (Cell Phone Extraction) (containing
the timestamps of the messages and showing the two-day gap between them). According to a
police detective, “Boul,” also spelled “Bull” or “Bul” is a slang term akin to “dude” or “guy.” Id.
at A218 (Testimony of Detective Robert Fox); see also id. at 245 (Testimony of Benjamin Smith)
(“It’s referring to somebody, anybody.”).
23
Id.
24
Id. at A218 (alteration added).

5
 II. Procedural History

A grand jury indicted Wharton on May 30, 2017.25 On January 14, 2018, the State

produced discovery material to Wharton and his then-codefendants on a USB flash drive.26

Included in the materials produced were cell phone extractions from Wharton and Baird,

and two other individuals.27 The parties agree that this production included the

Incriminating Messages.28

In response to a supplemental discovery request from Wharton, on May 1, 2018 the

State informed Wharton that at that time it “[did] not intend to present any evidence

obtained from the cellular extraction of Dia’yann Wharton’s cellular telephone.”29 On May

18, 2018, Wharton followed up with a motion under Superior Court Criminal Rule 16(a)(C)

requesting that the State identify with specificity what from the voluminous material

conveyed in discovery it intended to use.30 At an office conference on the motion four

days later, the State described its discovery production as being intentionally over-

inclusive, as it was erring on the side of disclosure out of respect for the defendant’s rights:

“There’s a mountain of stuff we provided. I don’t want to call it all
evidence because 85 percent of it I don’t intend to use at this time.
Sometimes circumstances change that makes something relevant that wasn’t.
But 85 percent of the information I provided was out of an abundance of
caution. I don’t know if there’s something in the cell phone downloads that

25
Id. at A1 (Superior Court Criminal Docket).
26
Id. at A39 (January 2018 Discovery Letter).
27
Id. at A42.
28
Id. at A140–41 (Motion in Limine Hearing).
29
Id. at A43 (May 2018 Discovery Letter).
30
Id. at A47–49 (Motion in Limine to Exclude Certain Evidence).

6
 defense counsel may find that they think it’s helpful to their case and
someone may characterize as Brady evidence down the road.

If I find Brady evidence, I’m alerting them proactively. If I see helpful
evidence that I’m going to present at trial, I will proactively alert them. But
as to all the other stuff, certain aspects of the case where what is or is not
Brady is in the in the eye of the beholder, I guess. So 85 percent of what I’ve
provided is not going to be part of the State’s case in chief. I can identify all
of that stuff versus what will be in a State’s case in chief.”31

At that conference, the Court instructed the State to “sit down with each of the

defense counsel,” and “turn over what the relevant cell phone text messages and calls

are.”32 At the subsequent meetings the State did not identify the Incriminating Messages

to Wharton or his codefendants, and in a letter on May 15, 2019 indicated that “Information

obtained from the cellular extractions of Defendants’ phones will not be used during the

Powell Case.”33

On June 5, 2019, the State brought the first part of the Incriminating Messages to

Wharton’s attention.34 The State only became aware of them the previous day. Wharton

31
Id. at A57–58 (Rule 16(a)(C) Office Conference, May 22, 2018); cf. Brady v. Maryland, 373
U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215 (1963) (“suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).
32
Id. at A91 (Rule 16(a)(C) Office Conference, May 22, 2018). A docket entry for May 22, 2018
states, in part:
OFFICE CONFERENCE PROCEEDING HELD BEFORE PRESIDENT JUDGE
JURDEN. THE STATE IS TO MEET WITH EACH DEFENSE COUNSEL AND
GO OVER WHAT SPECIFIC EVIDENCE IS GOING TO BE USED FOR
WHICH EACH OF THEIR CASE, SUCH AS CELL PHONE EVIDENCE AND
GANG PARTICIPATION EVIDENCE.
Id. at A7.
33
Id. at A97 (May 15, 2019 Discovery Letter).
34
Id. at A103 (Motion in Limine to Exclude Certain Evidence).

7
does not dispute this.35 During an evidence review meeting on June 13, 2019, the State

identified the full slate of Incriminating Messages.36 Wharton promptly moved to exclude

them all.37

III. The Motion and Ruling Below

In his motion to suppress, Wharton acknowledged that “no formal Court ruling was

ever made” in response to his May 18, 2018 request.38 In his motion, Wharton complained

that “[o]n June 5, 2019, the State forwarded by email and brought to the attention of defense

counsel a portion of a phone dump that was sent to defense counsel on January 14, 2018,”

and that “[t]he phone dump came from Isaiah Baird’s cell phone and was dated March 29,

2017, the day after the homicide in this case.”39 He further complained of the second

production at the evidence review meeting just over a week later.40 Both productions

“included statements made by the defendant damaging to his case and potentially

impacting on the defense trial strategy.”41 He also complained that the late revelation was

35
Id. at A114 (State’s Response to Motion in Limine). See Oral Argument video at 10:57 – 11:05
https://livestream.com/accounts/5969852/events/9376916/videos/212923491/player:
Traynor, J.: “Are you contending that the prosecution acted in bad faith?
Defense Counsel: “No, I don’t believe that there is a showing of bad faith.”

36
Id. at A115 (State’s Response to Motion in Limine).
37
Id. at A104 (Motion in Limine to Exclude Certain Evidence).
38
Id. at A102.
39
Id. at A103.
40
Id.
41
Id.

8
“at a time when the defense cannot really do much with it,”42 and he argued that, had he

been aware of the messages, he could have retained “a social media expert to explain the

behavior of individuals utilizing social media and how they oftentimes embellish

information or even make false posts given the nature of the media.”43 He also challenged

the relevance of the Incriminating Messages, arguing that they could have been talking

about a homicide other than the Powell homicide.44

At the hearing, the State represented that its statement in the May 15, 2019 letter

that “cellular extraction of Defendants’ phones will not be used” had a misplaced

apostrophe, and because the State had intended to refer to Defendant’s phones, it never

intended to disavow use of Baird’s phone extraction in Wharton’s trial.45 The State argued

that irrespective of that typographical error, there was no basis to exclude the Incriminating

Messages. Nevertheless, the State agreed that a continuance might be appropriate.46

The trial court delayed the start of trial to the following day to give Wharton’s

counsel time to interview Ervin and Aubrey.47 In the trial court’s view, those interviews

42
Id. at A103–04.
43
Id. at A104.
44
Id.
45
Id. at A143 (Motion in Limine Hearing).
46
See id. at A144 (“if the defense needs more time then they need more time.”).
47
Id. at A148.

9
would cure any prejudice.48 Wharton’s counsel interviewed both Ervin and Aubrey that

same day.49

Wharton waived his right to a jury with the consent of the State.50 The Superior

Court held a bench trial from June 19, 2019 to June 24, 2019.51 The following day, June

25, 2019, the trial judge issued the verdict, finding Wharton guilty of Murder in the First

Degree, Possession of a Firearm During the Commission of a Felony, Conspiracy First

Degree, Possession of a Firearm By a Prohibited Juvenile, and Carrying a Concealed

Deadly Weapon.52 On December 5, 2019, the trial judge sentenced Wharton to twenty-

nine years of unsuspended Level V time, followed by decreasing levels of supervision.53

IV. Issue Raised on Appeal and Contentions of the Parties

Wharton raises only a single issue on appeal, namely, that the Superior Court abused

its discretion by denying his Motion to Exclude the Incriminating Messages. He asserts

that the evidentiary ruling was flawed in two respects. First, he argues that the State’s

belated identification of the Incriminating Messages was contrary to the Superior Court’s

instructions given in response to his May 18, 2018 request for specific identification.

Second, he contends that the Superior Court should have held the State to its statement in

48
Id.
49
Id. at A150 (Trial Transcript).
50
Id. at A127–30 (Jury Waiver Colloquy).
51
Id. at A150–295 (Trial Transcript).
52
Id. at A297–98 (Verdict).
53
Op. Br. Ex. (Sentencing Order); see also App. to Op. Br. at A325–29 (Bench Ruling at
Sentencing Hearing). The State later entered a nolle prosequi on a Gang Participation charge
which had been severed.

10
the May 15, 2019 letter that it would not use cell phone extractions at trial. He asks this

Court to reverse the Superior Court’s evidentiary ruling and to grant a new trial.

Wharton argues that he detrimentally relied on the State’s affirmative statement that

it would not be using “Information obtained from the cellular extraction of Defendants’

phones” and that by permitting the State to introduce those messages, “the Superior Court

rewarded the State” for its error.54 Wharton believes that the State should be bound by its

prior discovery responses because “the State must bear responsibility for its material

misrepresentation.”55 While acknowledging that Superior Court Rule 16 does not impose

on the State a requirement to identify the relevant cell phone evidence, Wharton argues

that, because the State agreed to assume that task, it should be sanctioned for any oversights

in its execution.

The State argues that because it provided the cell phone extractions to Wharton

eighteen months prior to trial, no discovery violation occurred. The State argues that in

granting Wharton time to interview the relevant witnesses, the Superior Court fully cured

any prejudice.

V. Analysis

“When we review an alleged discovery violation, we must first determine whether

a violation occurred.”56 “If we conclude that a discovery violation occurred, then we apply

54
Op. Br. at 15.
55
Id. at 16.
56
Valentin v. State, 74 A.3d 645, 648–49 (Del. 2013) (stating also that, “[w]e review a trial judge’s
interpretation of the Superior Court Rules of Criminal Procedure relating to discovery de novo,
and we review the trial judge’s application of those Rules under an abuse of discretion standard.”).

11
a three-factor test that considers ‘(1) the centrality of the error to the case; (2) the closeness

of the case; and (3) the steps taken to mitigate the results of the error.’”57 We will reverse

a conviction on the basis of a discovery violation only if the defendant’s substantial rights

are prejudicially affected.58 Where there has been no discovery violation, however, the

Court need not engage in that three-part analysis.59

Wharton concedes that the State did not violate Superior Court Criminal Rule 16.60

He received the cellular phone data, which included the Incriminating Messages, promptly

and early in the discovery process. Instead, he asserts that the State violated either the trial

court’s statements at the May 22, 2018 office conference instructing the State to identify

the relevant cellular phone material, or the State’s own representation in its May 15, 2019

letter denying that it would use material from Defendants’ cellular phones.

A. The State Did Not Violate the Trial Court’s May 22, 2018 Instructions

The State made clear at the May 22, 2018 office conference that it could not be

certain what material from the cellular phone extractions would be relevant at trial.61 The

57
Id. (quoting Oliver v. State, 60 A.3d 1093, 1096–97 (Del. 2013)).
58
Id.
59
Wright v. State, 25 A.3d 747, 753 (Del. 2011).
60
See Oral Argument video at 4:40 – 5:03 https://livestream.com/accounts/5969852/events/
9376916/videos/212923491/player:
Traynor, J: [Defense Counsel], do you contend that under the rules the State has the
obligation to identify the evidence that it intends to introduce at trial?
Defense Counsel: Strictly under Rule 16, no, they are not obligated to specifically
identify which portions of the evidence they intend to introduce, but in this case the
State undertook that obligation voluntarily.
61
App. to Op. Br. at A57 (Rule 16(a)(C) Office Conference).

12
State also stated that if it discovered anything new in those extractions, or if it learned of

any other information that changed the apparent meaning of those extractions in a manner

making them relevant, whether that relevance was favorable or unfavorable to the State, it

would immediately alert Wharton and his codefendants.62 The State thus placed Wharton

on notice at the office conference that its continued review of that information might cause

it to reevaluate the relevance of the already-conveyed discovery. Further, the State made

clear that its over-inclusive production of materials recognized that Wharton and his

codefendants might regard something as helpful which the State had not considered, or

which the State had not yet noticed or found.63 Wharton acknowledges that the State

notified him immediately when it identified the Incriminating Messages.

The State also told the trial court that it had several conversations with Wharton’s

counsel and explained that it would not use material from Wharton’s phone because it “did

not want to fight the validity of these search warrants.”64 But, according to the State, it

advised Wharton’s counsel that “the same evidence can be found on the other social-media

mediums or cellphone extractions,”65 and that this “was made crystal clear.”66

Wharton asserts that it is “inexplicable” that the State would start to identify portions

of the discovery which it intended to use before it had fully combed through all of the

62
Id. at A57–58.
63
See id. at A81 (“I haven’t reviewed every page of the 10,000 pages of every cell phone
document. There could be something that the defense loves in those cell phones.”)
64
App. to Op. Br. at A143 (Trial Transcript).
65
Id.
66
Id.

13
digital information in its possession.67 But Wharton’s counsel also had an independent

obligation to review the discovery material. In addition, we note that several of the key

texts were dated the day after the Powell homicide which would have been a logical

timeframe to explore in reviewing the material. The State represented during the trial that

it went to Wharton’s counsel’s office after hours and showed her “how to use the most

recent cellular extraction software, how to find stuff, how to filter stuff.” 68 At oral

argument before this Court, the State reiterated that the database it provided was “entirely

searchable.”69

Moreover, Wharton was in a better position than the State to find the Incriminating

Messages. He is the one who sent them. Thus, Wharton had to know about their contents.

Wharton was necessarily aware that he was at the risk of the State learning of those

67
Op. Br. at 14.
68
App. to Op. Br. at A143 (Trial Transcript).
69
At oral argument before this Court, the State represented that:
Mr. Vella: We’ve heard a lot about these 14,000 pages and if printed out, I’m sure
it is 14,000 pages. What the prosecutor did in this case, as the State does in many
cases, is the prosecutor took these flash drives to defense counsel, uploaded the
software that our people use to review these things. It’s a searchable, it essentially
makes the downloads or the extractions searchable by any number of parameters,
including the date. And granted there may be a lot of information in a particular
date, but these are entirely searchable digital documents, and we provide defense
counsel with the software to use that we would also use. So, I just don’t want the
Court to come away with the feeling that or the sense that there’s just a stack of
documents to the ceiling that defense counsel or the State is going through. It’s a
digital document that is searchable and there are parameters including the date.
Oral argument video at 20:47 – 22:01 https://livestream.com/delawaresupremecourt/events/
9376916/videos/212923491/player.

14
conversations, whether through some digital record or from Baird himself. Thus, the State

could not have “lulled him into a false sense of complacency.”70

In his opening brief, Wharton cites Johnson v. State71 and Valentin v. State,72 in

support of his position that he is entitled to a new trial with the Incriminating Messages

excluded. Both cases involved the State failing to convey material to the defendant in

response to valid discovery requests until the trial was underway or completed. 73 Even in

those cases, the remedy this Court granted was a new trial with the withheld evidence

properly conveyed.74 In neither case did the State, as it did here, produce the evidence to

the defense prior to the trial. Neither case supports the remedy Wharton seeks here,

namely, an order for retrial with the evidence excluded.75

70
Op. Br. at 15.
71
550 A.2d 903 (Del. 1988).
72
74 A.3d 645 (Del. 2013).
73
In Johnson, the State withheld the existence of a police officer’s handwritten notes regarding
the content of the defendant’s oral statement until calling the officer as a rebuttal witness to
contradict the defendant’s testimony. 550 A.2d at 909–10. In Valentin, the State failed to convey
a dispatch recording of a police pursuit that supported the defendant’s version of events and
contradicted key prosecution witnesses. 74 A.3d at 650–52.
74
Valentin, 74 A.3d at 652; Johnson, 550 A.2d at 914. In Johnson, we further precluded the State
from using portions of the defendant’s first trial testimony about his oral statement against him on
retrial, effectively placing him in the position he would have been in had the evidence been
properly disclosed. Id.
75
In his reply brief, Wharton proffers three additional cases, Oliver v. State, 60 A.3d 1093 (Del.
2013), Doran v. State, 606 A.2d 743 (Del. 1992), and Ray v. State, 587 A.2d 439 (Del. 1991). Of
these, only Doran involved an exclusionary remedy. In that case, a police officer claimed that the
defendant made an oral statement to him which the State failed to disclose in discovery. 606 A.2d
at 744. A new prosecutor took over the case, re-interviewed the officer, and upon learning of the
officer’s asserted knowledge of the statement immediately disclosed it to the defendant on the eve
of trial. Id. The trial court excluded the statement in the State’s case-in-chief. Id. But when the
defendant testified, the Court granted the State’s request to use the defendant’s prior oral statement
for purposes of impeachment, permitting the State to cross-examine him about the statement and
15
 Based upon our review of the record, we reject Wharton’s claim of error that the

State violated the trial court’s instructions.

B. The Superior Court’s Did Not Otherwise Abuse Its Discretion

We next address Wharton’s assertion that the Superior Court erred in not excluding

the Incriminating Messages because it should have held the State to its statement in the

May 15, 2019 letter that it would not use the defendants’ cell phone extractions. We first

consider whether the State committed a discovery violation based on the circumstances

surrounding this letter.

At the time it sent the letter, the State had not yet discovered the Incriminating

Messages. The State’s prompt action upon discovery suggests no bad faith or misconduct.

The trial court carefully considered Wharton’s assertions of prejudice and the

circumstances surrounding the State’s mistaken use of a plural-possessive in the letter. The

Superior Court accepted that the misplaced apostrophe was an innocent typographical error

and did not constitute a discovery violation.76 For context, in reaching this conclusion the

trial court noted the “amazing amount of cooperation between the State and the defendant

and the voluminous amount of discovery.”77 The trial court also noted that the State had

then recall the officer to testify about the statement in rebuttal. Id. at 745. We affirmed the trial
court’s rulings as “entirely correct.” Id. at 747-48. Doran is inapposite to the present
circumstances. Here, the Incriminating Messages were recorded in a digital format which the State
promptly conveyed more than a year earlier, and as soon as any agent of the State had actual
knowledge of the Incriminating Messages immediately disclosed them to Wharton.
76
See App. to Op. Br. at A147 (Trial Transcript) (“I understand and I believe completely [the
prosecutor’s] representation that the apostrophe on defendants should have been before the S, not
after, and I believe your explanation as to the intent of the State’s letter of May 15.”).
77
Id.

16
produced discovery that it did not have an obligation to produce to avoid trial by surprise,

and that it “applaud[ed] the State’s efforts in that regard.”78

Nevertheless, at the hearing on the motion to exclude, the Superior Court ordered

time and opportunity for Wharton to conduct two interviews. Wharton did conduct those

interviews, but apparently nothing came of them.79 Although the typo was an unfortunate

unintentional mistake, like the Superior Court, we do not believe the State violated its

discovery obligations.

But, even if we were to assume arguendo that the State’s May 15, 2019 letter gave

rise to a technical discovery violation, we are convinced that the Superior Court addressed

any prejudice suffered by Wharton, and that it did not abuse discretion by granting Wharton

some additional time to conduct the two interviews and denying his request to exclude the

Incriminating Messages.

An application of the three-factor test to this assumed technical violation further

supports this conclusion. As to the centrality of the alleged technical violation (which is

merely assumed arguendo), this factor favors Wharton as the Incriminating Messages are

exactly that -- highly incriminating. Both sides agreed they are highly relevant. They

amount to a virtual confession from Wharton that he pulled the trigger to take Powell’s

life.80

78
Id.
79
Id. at A150.
80
In his opening brief, Wharton states that the contents of his co-defendant’s cell phone extraction
“amounted to a confession by Mr. Wharton.” Op. Br. at 3.

17
 However, as to the closeness of the case, this case was not close in our view.

Security camera footage showed Powell being followed for approximately eleven blocks

and then slain by two individuals. In electronic messages, the victim himself specifically

identified those individuals as Wharton and Smith. The footage does not make clear who

fired the fatal shot, and so absent the Incriminating Messages, the State needed to rely on

Smith’s testimony and on circumstantial evidence to establish Wharton as the shooter.

Although the State concedes that, without the Incriminating Messages, distinguishing

whether Wharton was the shooter or the shooter’s companion was a ‘fairly close’

question,81 Delaware law recognizes that Wharton and Smith were both culpable because

they were charged as co-conspirators. Although the State’s main theory was that Wharton

was the shooter, there was ample evidence supporting the conspiracy theory.82 Thus, even

without the Incriminating Messages, proof of Wharton’s guilt was overwhelming.

The third factor, the steps taken to mitigate prejudice, also does not favor Wharton.

The Superior Court carefully weighed the circumstances and remediated any injury to

Wharton caused by the errant apostrophe. It found the sensible solution to be “to allow the

defense time to speak with Aubrey and Twin if they think it’s necessary, which they have

told the Court they do, and that will cure the prejudice they articulated today in Court.”83

As for Wharton’s assertion that he might have retained a social media expert, the court

81
Ans. Br. at 17.
82
See App. to Op. Br. at A326–27 (Sentencing Hearing and Bench Ruling).
83
Id.

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aptly noted that “this is not a social-media issue.”84 Rather, “[t]his is a text conversation

via cellphone.”85 Thus, the trial court did not “find much prejudice,” and did not “find

overwhelming prejudice or substantial prejudice sufficient to exclude the evidence.”86

Further, Wharton could only have relied on the May 19, 2019 letter for the three weeks

after it was sent. Wharton could have asked for a continuance but he never did. His failure

to do so seriously undercuts his argument for exclusion.87 In sum, we find no merit to

Wharton’s assertions that the Superior Court abused its discretion in determining that

exclusion of the Incriminating Messages was unwarranted.

VI. Conclusion

For the forgoing reasons, the Superior Court’s discovery rulings and its subsequent

verdict and judgment of sentence are therefore AFFIRMED.

84
App. to Op. Br. at A148 (Trial Transcript).
85
Id.
86
Id.
87
See, e.g. Taylor v. State, 982 A.2d 279 (Del. 2008). In Taylor, a rape victim turned over a second
journal that contained corroborating facts on the eve of trial. The State informed the defense about
the journal at the pre-trial conference. The defense moved for a continuance. The trial judge
postponed the State’s case-in-chief until the next morning and the parties proceeded with jury
selection and opening statements that day. The following morning, the defense moved to suppress
the journal but did not renew the motion for a continuance. In affirming, we found that the only
claim of colorable prejudice was defense’s lost time to prepare for cross-examination. We ruled
that the several hours Taylor had was sufficient time to determine whether a continuance was
needed in order conduct further trial preparation. We stated, “[b]ut Taylor did not renew his
motion for a continuance the next day, nor did he point to specific portions of the diary that should
be excluded.” Id. at 284. Accordingly, we held that, “[g]iven the lack of factual support for any
claimed discovery violation, the Superior Court did not abuse its discretion in denying Taylor’s
motion to suppress.” Id.

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