McGuiness v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KATHLEEN MCGUINESS, §
§ No. 438, 2022
Defendant Below, §
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware (K)
§
STATE OF DELAWARE, § Cr. ID No. 2206000799
§
Appellee. §

Submitted: November 15, 2023
Decided: February 13, 2024

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW and
GRIFFITHS, Justices; constituting the Court en Banc.

Upon appeal from the Superior Court of the State of Delaware. AFFIRMED IN
PART, REVERSED IN PART, AND REMANDED.

Steven P. Wood, Esquire (argued), Chelsea A. Botsch, Esquire, McCARTER &
ENGLISH, LLP, Wilmington, DE, Dean A. Elwell, Esquire, McCARTER &
ENGLISH, LLP, Boston, MA, Attorneys for Appellant Kathleen McGuiness.

David C. McBride, Esquire (argued), M. Paige Valeski, Esquire, YOUNG
CONAWAY STARGATT & TAYLOR, LLP, Wilmington, DE, Attorneys for
Appellee State of Delaware.

LEGROW, Justice, for the Majority:
 An elected state official was indicted and tried on criminal charges arising

from her conduct while in office. The parties vigorously litigated the case, and the

trial court issued numerous well-reasoned and even-handed decisions before, during,

and after the trial. The jury ultimately convicted the defendant of three charges while

acquitting her of two others. She now appeals, arguing that “the trial that led to the

convictions was profoundly unfair and unconstitutional.”1

Notwithstanding the defendant’s inflamed rhetoric, the record amply

demonstrates that she received a fair trial. The defendant raises a mélange of issues

on appeal, including that the State failed to present sufficient evidence of the charged

crimes and violated the defendant’s due process rights by suppressing exculpatory

evidence. We reject those arguments because they distort the trial court’s holdings

or misapply the law. We conclude, however, that one of the defendant’s convictions

must be reversed because the legal insufficiency of one of the charges resulted in the

spillover of evidence that prejudiced the jury’s consideration of a closely linked

charge. We therefore reverse the defendant’s conviction for Official Misconduct. In

all other respects, we affirm the trial court’s decisions and the defendant’s

convictions.

1
Video of Oral Argument, at 1:30–1:36 (Nov. 15, 2023).

1
 FACTUAL BACKGROUND

A. The Investigation and The Indictment

Kathleen McGuiness was elected as the State of Delaware Auditor of

Accounts in 2018 and was sworn into office in January 2019.2 In April 2020, three

Office of the Auditor of Accounts (“OAOA”) employees who reported to McGuiness

contacted the Delaware Department of Justice (the “DOJ”) and alleged that she had

engaged in misconduct.3 These employees included the OAOA’s fiscal manager, an

outgoing administrative auditor, and a senior auditor.4 The employees’ chief

complaints concerned office spending, McGuiness’s engagement in political activity

while working, and the misuse of no-bid contracts.5 In addition to their concerns

about McGuiness’s misconduct, the employees expressed fear that they would face

retaliation for their roles as whistleblowers.6

Several months later, McGuiness’s Chief of Staff contacted the DOJ regarding

his concern that McGuiness had awarded a state contract to a company called “My

Campaign Group” (“MCG”) for campaign work and that the contract became more

2
App. to Opening Br. at A31 (Indictment).
3
Id. at A4153–54 (Cousin Direct Exam.); A4244 (Haw-Young Direct Exam.); A4354–55 (Horsey
Direct Exam.).
4
Id. at A4416 (Robinson Direct Exam.).
5
Id. at A4090–111 (Van Horn Direct Exam.).
6
Id. at A4153–54 (Cousin Direct Exam.); A4244 (Haw-Young Direct Exam.); A4354–55 (Horsey
Direct Exam.).

2
lucrative when MCG changed its name to “Innovate Consulting.”7 The Chief of

Staff reported that McGuiness had directed him to pay an MCG invoice for $1,950

using his state-issued credit card because the invoice had been rejected by the

Delaware Division of Accounting.8

Later, in October 2020, two more whistleblowers came forward—an

administrative assistant and a human resources specialist—citing concerns that

McGuiness’s daughter (“Daughter”) and Daughter’s friend were on the state payroll

while they were living and attending college out of state.9 The Chief of Staff also

questioned the propriety of Daughter’s employment, suggesting that she did not do

much work.10

Toward the end of 2020, McGuiness emailed the Delaware Department of

Technology and Information (“DTI”), asking for the names of “anyone who had

requested records for anyone in the auditors [sic] office since Jan 2019.”11 In the

first few months of 2021, McGuinness placed one of the whistleblowers—the

administrative auditor—on a performance improvement plan and fired her Chief of

7
Id. at A3988–989 (Van Horn Direct Exam.).
8
Id. at A3985–86 (Van Horn Direct Exam.); 4190–92 (Thomas Direct Exam.).
9
Id. at A4423 (Robinson Direct Exam.); A4281–83 (Elder Direct Exam.); A4294–96 (Moreau
Direct Exam.).
10
Id. at A3991 (Van Horn Direct Exam.).
11
Id. at A4427 (Robinson Direct Exam.).

3
Staff.12 The Chief of Staff later testified that, although McGuiness cited an

inappropriate work relationship as the reason for his termination, that relationship

ended months before he was fired.13

The DOJ began investigating the allegations against McGuiness in earnest in

May 2021.14 First, an investigator from the DOJ’s Division of Civil Rights and

Public Trust (the “Division”), Franklin Robinson, contacted two OAOA casual-

seasonal employees to determine whether Daughter and Daughter’s friend were

receiving benefits that other casual-seasonal employees were not.15 Both employees

with whom Robinson spoke stated that they were paid less than Daughter and

Daughter’s friend and were not permitted to “bank” their hours as Daughter and

Daughter’s friend did.16 The process of “banking” hours allows employees to work

extra hours during one pay period and apply those extra hours to a later pay period.17

The following month, Robinson called Daughter’s friend to follow up on these

reports.18 After the call ended, Robinson received a call from a blocked number,

12
Id. at A4279–80 (Haw-Young Direct Exam.); A3977 (Van Horn Direct Exam.).
13
Id. at A3973–75 (Van Horn Direct Exam.).
14
Id. at A4464–65 (Robinson Direct Exam.).
15
Id.
16
Id. at A3314 (Vargas Direct Exam.).
17
Answering Br. at 8.
18
App. to Opening Br. at A3063 (Bateman Direct Exam.).

4
which he later determined belonged to McGuiness.19 Robinson also received a call

from McGuiness’s new Chief of Staff that same day.20 Later that summer,

McGuiness’s new Chief of Staff requested that DTI change Daughter’s job title from

“Public Information Officer” to “Intern,” and McGuiness filed requests to monitor

some of her current and former employees’ emails and one of the whistleblowers’

private messages.21

Robinson continued his investigation into the fall of 2021, conducting

interviews with McGuiness’s current Chief of Staff and Daughter.22 During her

interview, Daughter told Robinson that McGuiness’s former Chief of Staff initially

interviewed her for the position, but she could not remember what questions she was

asked.23 In response to inquiries about her limited email correspondence—which

Robinson had obtained under a search warrant—Daughter told Robinson that she

spent “essentially the whole day” on her email.24 Robinson’s investigation also

19
Id. at A4431–34 (Robinson Direct Exam.).
20
Id. at A4430–34 (Robinson Direct Exam.).
21
Id. at A2921–22 (Herron Direct Exam.); A2975–76 (Herron Direct Exam.); A4445–46
(Robinson Direct Exam.).
22
Id. at A4663 (Robinson Direct Exam.); A3795 (Ziamba Direct Exam.).
23
Id. at A3796–97 (Ziamba Direct Exam.).
24
Id.

5
revealed that Daughter’s onboarding paperwork and payroll documents listed

McGuiness as her supervisor.25

On September 28, 2021, the DOJ obtained a search warrant for the OAOA

office, authorizing a search of:

the books, papers, records and other documents of any officer,
department, board, agency, instrumentality or commission of the state
government. In this case, the places to be searched are the state offices
of the Auditor of Accounts. Though the Attorney General may have
right of access to state records and that the expectations of privacy may
be diminished in state offices, your affiant believes probable cause
nonetheless exists to show that the offices of the Auditor of Accounts
reasonably contain evidence of the crimes described above.26
The following day, the DOJ executed the warrant and seized numerous laptops

and computers from the OAOA office.27 Following the seizure, on October 8, 2021,

the DOJ obtained a warrant to search the digital devices’ contents.28 In an effort to

ensure that investigators did not see McGuiness’s privileged communications, the

DOJ implemented a filter process for searching the OAOA devices. Under that

process, the Delaware State Police High Tech Crimes Unit first searched the devices

and provided those search results to a DOJ team, which would be uninvolved in

McGuiness’s prosecution (the “filter team”). The filter team reviewed all the

25
Id. at A2694–95 (Sclesky Direct Exam); A3912-A3916 (Moore Direct Exam.).
26
Id. at A720 (Office Search Warrant).
27
App. to Answering Br. at B192 (DOJ Timeline).
28
Id. at B189 (Digital Search Warrant).

6
material for privileged communications and then sent all non-privileged materials to

the prosecution team.29

On October 11, 2021, a grand jury indicted McGuiness for five criminal

charges relating to her conduct as the State’s Auditor of Accounts. Count I charged

McGuiness with Conflict of Interest in violation of 29 Del. C. § 5805.30 The basis

for Count I was McGuiness’s role in hiring Daughter, acting as Daughter’s

supervisor, and giving Daughter a “position with advantages unavailable to other

employees.”31

Count II of the Indictment charged McGuiness with felony Theft in violation

of 11 Del. C. § 841.32 Daughter’s employment also formed the basis of this count,

and the State contended that McGuiness had taken, exercised control over, or

29
Answering Br. at 12.
30
App. to Opening Br. at A31 (Indictment). 29 Del. C. § 5805(a)(1) provides that “[n]o state
employee, state officer or honorary state official may participate on behalf of the State in the review
or disposition of any matter pending before the State in which the state employee, state officer or
honorary state official has a personal or private interest, provided, that upon request from any
person with official responsibility with respect to the matter, any such person who has such a
personal or private interest may nevertheless respond to questions concerning any such matter. A
personal or private interest in a matter is an interest which tends to impair a person's independence
of judgment in the performance of the person's duties with respect to that matter.”
31
Id. at A35 (Indictment). Even Daughter’s friend did not, according to the State, receive the same
set of benefits as Daughter.
32
Id. 11 Del. C. § 841 provides that “[a] person is guilty of theft when the person takes, exercises
control over or obtains property of another person intending to deprive that person of it or
appropriate it. Theft includes the acts described in this section, as well as those described in §§
841A-846 of this title.”

7
obtained property owned by the State of Delaware valued at more than $1,500 when

she hired Daughter and gave her benefits not available to other employees.33

Count III charged McGuiness with Non-Compliance With Procurement Law

in violation of 29 Del. C. § 6903.34 This count arose from McGuiness’s decision to

award MCG a state contract totaling less than $50,000 so that the contract would not

be subject to a public bidding process.35 Additionally, the State posited that the

invoices issued under that contract were artificially divided into amounts totaling

less than $5,000 in order to circumvent review by the Delaware Division of

Accounting.36 The State also alleged that, after a State employee objected to the

contracts being awarded to a political campaign company, MCG established another

company called Innovate Consulting, and McGuiness awarded Innovate Consulting

contracts totaling $77,500.37

33
Id.
34
Id. at A36 (Indictment). 29 Del. C. § 6903 provides that “Any person, who, with intent to avoid
compliance with this chapter, wilfully fragments or subdivides any contract for the purchase of
materiel, nonprofessional services, public works or professional services, shall be subject to the
penalties listed in this section.”
35
Id. at A36–37 (Indictment).
36
Id. at A37 (Indictment).
37
Id. at A38 (Indictment).

8
 Count IV of the Indictment charged McGuiness with Official Misconduct in

violation of 11 Del. C. § 1211.38 Count IV alleged that McGuiness engaged in

misconduct relating to Daughter’s employment and the MCG contract with an intent

to obtain a personal benefit and with knowledge that the conduct was unauthorized.39

Count V charged McGuiness with Act of Intimidation in violation of 11 Del.

C. § 3532.40 The State alleged that McGuiness used email surveillance and

discriminatory office policies to target whistleblowers in a knowing attempt to

prevent or dissuade employees from testifying against her.41

38
Id. at A39 (Indictment). Under 11 Del. C. § 1211(1) and (3), “A public servant is guilty of
official misconduct when, intending to obtain a personal benefit or to cause harm to another person,
the public servant knowingly does any of the following:
(1) Commits an act constituting an unauthorized exercise of official functions, knowing
that the act is unauthorized.
(3) Performs official functions in a way intended to benefit the public servant's own
property or financial interests under circumstances in which the public servant's actions
would not have been reasonably justified in consideration of the factors which ought to
have been taken into account in performing official functions.”
39
Id. at A39–40 (Indictment).
40
Id. at A40 (Indictment). 11 Del. C. § 3532 provides that “every person who knowingly and with
malice prevents or dissuades (or who attempts to prevent or dissuade) any witness or victim from
attending or giving testimony at any trial, proceeding or inquiry authorized by law is committing
an act of intimidation and is guilty of a class D felony. A person who knowingly and with malice
retaliates against any victim or witness who has attended or given testimony at any trial proceeding
or inquiry authorized by law by committing any crime as defined by the laws of this State against
such victim or witness is committing an act of intimidation and is guilty of a class D felony.”
41
Id. at A41.

9
 B. Pre-Trial Proceedings

Following her indictment, McGuiness vigorously defended the charges

against her, resulting in extensive motion practice before the trial court. We

summarize the relevant pretrial proceedings with as much brevity as possible in light

of the wide-ranging issues raised on appeal.

1. Motion for Appointment of Private Counsel

McGuiness filed her first motion just days after the grand jury returned the

Indictment. McGuiness retained private counsel to represent her in the criminal

proceedings and sought to have her counsel’s fees paid by the State. Under Delaware

law, when a State employee is the subject of litigation arising from her employment,

the employee is entitled to representation by the DOJ. But when, as here, the

employee is facing criminal charges filed by the State, the DOJ is conflicted and

cannot represent the employee’s legal interests. In her Petition for Appointment of

Private Counsel, McGuiness reasoned that under Delaware Supreme Court Rule 68,

the DOJ’s conflict allowed her to retain private counsel at the State’s expense.42

Under Rule 68(f), “the court may appoint an attorney from the private bar, if the

court is satisfied that such [DOJ] conflict exists or may exist.”43

42
Id. at A43 (Petition for Appointment of Private Counsel for a State Officer).
43
Id. (quoting Supr. Ct. R. 68(f)).

10
 In response to the petition, the State argued that under 10 Del. C. § 3925,44

McGuiness was required to first seek appointment of counsel from the Delaware

Office of Defense Services (“ODS”) or the Office of Conflicts Counsel (“OCC”),45

not a lawyer from the private bar whose fees typically are substantially higher than

the fees paid to OCC attorneys.46 The State further argued that because ODS did not

have a conflict in McGuiness’s case, her petition should be denied.47 The State also

contended that, to the extent Supreme Court Rule 68 and Section 3925 differ as to

the procedures for appointing counsel, the statute controls.48

44
10 Del. C. § 3925 provides that “[a]ny public officer or employee, in a criminal or civil action
against the person arising from state employment, shall be entitled to petition the court for a court-
appointed attorney to represent the person's interests in the matter. If the judge, after consideration
of the petition, examination of the petitioner and receipt of such further evidence as the judge may
require, determines that the petition has merit, the judge shall appoint an attorney to represent the
interests of such public officer or employee. The court-appointed attorney shall represent such
person at all stages, trial and appellate, until the final determination of the matter, unless the
attorney is earlier released by such person or by the court. The court may first appoint an attorney
from the Department of Justice. If the court determines that the Department is unable to represent
such public officer or employee, the court may appoint an attorney from the Office of Defense
Services in criminal actions only, and in civil actions may appoint an attorney licensed in this State.
This section shall also apply to all federal courts within this State.”
45
The Office of Defense Services represents indigent criminal defendants in Delaware, and the
Office of Conflicts Counsel appoints members of the private bar to represent indigent criminal
clients whom the Office of Defense Services cannot represent due to a conflict.
46
App. to Opening Br. at A98 (State’s Response in Opposition to Petition for Appointment of
Private Counsel). McGuiness’s counsel charged $550 per hour in her case whereas conflicts
counsel is paid $100 per hour. A44 (Defendant’s Petition for Appointment of Private Counsel for
a State Officer); A104 (State Response in Opposition to Defendant’s Petition for Appointment of
Private Counsel for a State Officer).
47
Id. at A101 (State’s Response in Opposition to Petition for Appointment of Private Counsel).
48
Id. at A102 (State’s Response in Opposition to Petition for Appointment of Private Counsel).

11
 In denying the petition, the Superior Court held that McGuiness had bypassed

Section 3925’s requirement that she first seek appointment of counsel from ODS.49

Private counsel continued to defend McGuiness through trial and on appeal.

2. Motion to Compel Discovery

The State produced some initial discovery to McGuiness on December 17,

2021.50 That production included emails from McGuiness’s state email account,

spreadsheets with casual-seasonal employees’ compensation, Daughter and

Daughter’s friend’s employment paperwork and compensation information,

Daughter’s state email correspondence, and financial information regarding the

MCG and Innovate Consulting contracts.51 The State’s letter indicated that the data

from certain digital devices was not included in the production because the filter

team had not yet completed its review.52

McGuiness filed a motion to compel discovery on January 31, 2022, arguing

that the State had failed to provide all discoverable materials in its possession. 53 In

her January Motion to Compel, McGuiness sought discovery relating to her theory

that she was being subjected to a “selective prosecution” because the conduct

49
State v. McGuiness, 2021 WL 5013826 (Del. Super. Oct. 28, 2021).
50
App. to Opening Br. at A158 (Defendant’s Discovery Request); App. to Answering Br. at B32
(State’s Response to Defendant’s Discovery Request).
51
App. to Answering Br. at B32–34 (State’s Response to Defendant’s Discovery Request).
52
Id. at B34 (State’s Response to Defendant’s Discovery Request).
53
App. to Opening Br. at A156 (Mot. to Compel Discovery).

12
forming the basis of her criminal charges was common in state government, but no

other State official or employee had ever been prosecuted.54 The Superior Court

granted the January motion in part because it held that McGuiness had demonstrated

a “colorable basis” for a selective prosecution defense by adequately alleging some

elements of that claim.55

3. Motion to Dismiss Count V and Motion for a Bill of Particulars

In February 2022, McGuiness moved to dismiss Count V of the Indictment.56

In that motion, she argued that the indictment was facially deficient as to Count V

because it insufficiently described McGuiness’s knowledge of the proceedings or

witnesses against her and therefore failed to provide her with sufficient notice as to

the conduct for which she was being prosecuted.57 The State argued in response that

the indictment provided sufficient detail regarding the nature of the whistleblowers’

allegations and McGuiness’s efforts to prevent the whistleblowers from testifying,

specifically by surveilling their emails and enacting office policies targeting

whistleblowers.58

54
Id. at A163–66 (Mot. to Compel Discovery).
55
State v. McGuiness, 2022 WL 1184407, at *2 (Del. Super. Apr. 13, 2022).
56
App. to Opening Br. at A228 (Mot. to Dismiss Count V).
57
Id. at A233–34 (Mot. to Dismiss Count V).
58
Id. at A253–55 (State’s Response to Mot. to Dismiss Count V).

13
 Also pending before the court was McGuiness’s Motion for a Bill of

Particulars filed in November 2021.59 In that motion, McGuiness sought clarity and

additional facts regarding all five counts.60 Before responding to the motion, and

before the court could rule on it, the State filed a superseding indictment against

McGuiness on March 28, 2022 (the “Superseding Indictment”).61 The Superseding

Indictment did not add any new charges, but it expanded the date range

corresponding to Counts IV and V and added facts to support Count III.62 The State

then responded to McGuiness’s motion the next day, arguing that the additional facts

in the Superseding Indictment mooted McGuiness’s arguments as to Count III and

that her argument concerning the other counts sought information that need not be

contained in an indictment, such as the State’s theory of the case.63 McGuiness

responded with a supplemental motion for a bill of particulars, maintaining her

previous arguments and contending that the Superseding Indictment did not rectify

the lack of factual allegations.64

59
Id. at A128 (Mot. for Bill of Particulars).
60
Id. at A131–41 (Mot. for Bill of Particulars).
61
Id. at A270 (Superseding Indictment).
62
Id.
63
Id. at A266 (State’s Response to Mot. for Bill of Particulars).
64
Id. at A283–85 (Supplemental Mot. for Bill of Particulars).

14
 The Superior Court issued a memorandum opinion on April 21, 2022, granting

in part and denying in part McGuiness’s Motion for a Bill of Particulars.65 The court

granted her motion as to Counts III and V, holding that if the State planned to

introduce contracts in support of Count III other than those awarded to MCG, it must

provide those contracts to McGuiness.66 The court also held that Count V of the

indictment was insufficiently particular because it did not identify the names of the

witnesses whom McGuiness was accused of intimidating. The court directed the

State to provide that information to McGuiness.67

A week later, in May 2022, the court denied McGuiness’s Motion to Dismiss

Count V, holding that the Superseding Indictment sufficiently alleged that she acted

with the requisite knowledge and intent to dissuade the whistleblowers from

testifying against her.68 The court also held that although the indictment did not set

forth a specific date by which McGuiness had knowledge of the investigation, the

State had clarified during oral argument that she had knowledge of the investigation

no later than September 11, 2021, the day she was served with a grand jury

subpoena.69

65
State v. McGuiness, 2022 WL 1410034 (Del. Super. Apr. 21, 2022).
66
Id. at *2.
67
Id.
68
State v. McGuiness, 2022 WL 1489572, at *2 (Del. Super. May 2, 2022).
69
Id. at *3.

15
 4. Motion to Dismiss Count III and Motion to Dismiss the Indictment

In April 2022, McGuiness filed a Motion to Dismiss Count III of the

Indictment along with a Motion to Dismiss the Indictment or Alternatively to

Sanction the State for Discovery Violations.70 In her Motion to Dismiss Count III,

McGuiness argued that the State changed its theory as to Count III in the

Superseding Indictment by abandoning the multiple invoice theory and adopting a

new theory that each invoice was paid from different sources.71 These facts,

McGuiness argued, were vague and failed to allege that her conduct was illegal.72

McGuiness also argued that Count III should be dismissed because the facts

contained within it had been known to the State at the time it obtained the first

Indictment, and the delay in presenting the Superseding Indictment to the grand jury

had prejudiced McGuiness.73

In its response to the motion, the State argued that because Count III of the

Superseding Indictment did not charge McGuiness with a new crime, and because

the Superseding Indictment did not change the State’s theory of Count III, but rather

70
App. to Opening Br. at A301 (Mot. to Dismiss Count III); A378 (Mot. to Dismiss or Sanction).
71
Id. at A318 (Mot. to Dismiss Count III).
72
Id. at A319 (Mot. to Dismiss Count III).
73
Id. at A314–17 (Mot. to Dismiss Count III).

16
explained the allegations in greater detail, McGuiness had failed to demonstrate

prejudice.74

The Superior Court denied the motion on May 13, 2022, holding that the

indictment sufficiently alleged that McGuiness had engaged in conduct satisfying all

the elements of 29 Del. C. § 6903.75 The court found that the indictment specifically

alleged that McGuiness divided payments under the MCG contract to circumvent

the Delaware Division of Accounting’s review, which the court held met Section

6903’s “fragmenting or subdividing” element.76

In her Motion to Dismiss the Indictment or Alternatively Sanction the State,

McGuiness contended that on April 8, 2022, the State produced electronically stored

information (“ESI”) consisting of 511,255 documents collected from some of the

devices it had seized when it executed the search warrant in September 2021.77

McGuiness argued that this delayed production severely prejudiced her ability to

prepare for trial because she could not reasonably review all the documents in the

six or seven weeks remaining before trial.78 McGuiness further contended that

because the State waited seven months to produce the documents, which were in its

74
Id. at A373–74 (State’s Response to Mot. to Dismiss Count III).
75
State v. McGuiness, 2022 WL 1538488, at *3 (Del. Super. May 13, 2022).
76
Id. at *3–4.
77
App. to Opening Br. at A379 (Mot. to Dismiss the Indictment or Alternatively Sanction the
State).
78
Id. at A388 (Mot. to Dismiss the Indictment or Alternatively Sanction the State).

17
possession throughout that period, it had violated both its discovery obligations and

its obligation under Brady v. Maryland79 to disclose exculpatory or impeachment

evidence.80

McGuiness asked the court to dismiss the Superseding Indictment because the

prejudice caused by the late production could not be cured by a trial continuance,

namely because she intended to run for re-election in the fall of 2022 and wanted the

trial to be complete before the election.81 McGuiness alternatively asked the court

to sanction the State for the late production by ordering it (i) not to introduce any of

the newly produced evidence at trial; (ii) to pay the costs she incurred reviewing the

voluminous discovery on an expedited basis; and (iii) to confirm that the newly

produced evidence did not include exculpatory evidence.82

In response to this motion, the State acknowledged that it had recently

produced a large volume of discoverable information, specifically data obtained

from McGuiness’s computer and Daughter’s laptops, but contended that much of the

data included emails and attachments from McGuiness’s email account to which she

maintained access during the pendency of the litigation and that the State had already

79
373 U.S. 83 (1963).
80
App. to Opening Br. at A390–92 (Mot. to Dismiss the Indictment or Alternatively Sanction the
State).
81
Id. at A393 (Mot. to Dismiss the Indictment or Alternatively Sanction the State).
82
Id. at A394–95 (Mot. to Dismiss the Indictment or Alternatively Sanction the State).

18
produced in December 2021.83 The State explained that the delayed production

occurred because the computer and laptops’ password protection and encryption

required the State to hire a third-party vendor to search the data, which began in

February 2022.84 After data was extracted from the laptops and computer, the filter

team finished sorting through the privileged and confidential communications in late

April 2022.85 Notably, the State provided McGuiness with the discovery weeks

before its own prosecution team had access to the materials.86

The Superior Court decided the motion on May 18, 2022, granting some of

the requested discovery sanctions but denying the ultimate sanction of dismissal.87

The court agreed with the State that much of the ESI in the new production was

previously available to McGuiness, including OAOA network files and McGuiness’s

and Daughter’s state email.88 The court also pointed out that the State had produced

the ESI in a searchable format, allowing McGuiness to identify exculpatory

information in a timely fashion.89 The court held that although the State violated the

83
Id. at A440–44 (Response in Opposition to Mot. to Dismiss the Indictment or Alternatively
Sanction the State).
84
Id. at A453 (Response in Opposition to Mot. to Dismiss the Indictment or Alternatively Sanction
the State Ex. B).
85
Id. at A454 (Response in Opposition to Mot. to Dismiss the Indictment or Alternatively Sanction
the State Ex. B).
86
Id.
87
State v. McGuiness, 2022 WL 1580601 (Del. Super. May 18, 2022).
88
Id. at *5.
89
Id.

19
court’s discovery deadlines by making the late production, it did not do so in bad

faith, and dismissing the Indictment therefore was not warranted.90 The Superior

Court further held that McGuiness had not established a claim under Brady because

she had not demonstrated prejudice.91 The court ultimately precluded the State from

introducing any of the newly produced evidence in its case-in-chief.92 The trial court

also offered to continue the trial, which McGuiness declined out of concerns

regarding the upcoming election.

5. Pre-Trial Venue Change

On May 26, 2022, which was to be the first day of trial, McGuiness first

challenged whether venue was properly maintained in New Castle County because

none of the events described in the Indictment occurred there.93 The State conceded

that Kent County was the proper venue and thereafter entered a nolle prosequi on all

the indicted counts.94 The State then re-indicted McGuiness in Kent County, and on

June 6, 2022, a Kent County grand jury returned an indictment substantively

identical to the previous Superseding Indictment.95

90
Id. at *4.
91
Id. at *5.
92
Id. at *4.
93
Answering Br. at 1.
94
App. to Answering Br. at B263 (State’s Letter).
95
App. to Opening Br. at A796 (Kent County Indictment). See A769 (State’s Letter Identifying
Slight Amendments to Indictment).

20
 McGuiness then argued one more motion to dismiss in early June 2022 before

trial began.96 McGuiness renewed her motions that the court previously denied,

contending that it should reconsider its holdings in light of the case’s relocation to

Kent County.97 The court issued an order the next day, on June 9, ordering that its

decisions in the New Castle County case would be binding in the Kent County

proceedings.98

C. Trial

The trial began on June 14, 2022.99 In total, 28 witnesses testified for the

State, most of whom were current and former state employees.100 Six witnesses

testified for McGuiness, including Investigator Robinson, whom McGuiness re-

called as a witness after he testified for the State.101 On June 30, 2022, the parties

96
Id. at A784 (Omnibus Mot. to Dismiss).
97
Id. at A786 (Omnibus Mot. to Dismiss).
98
Id. at A1066–67 (June 9, 2022 Order).
99
Id. at A2607; A2629 (Trial Tr.).
100
See id. at A2685 (Sclesky Direct Exam.); A2698 (Spano Direct Exam.); A2777 (Hyler Direct
Exam.); A2793 (Grossman Direct Exam.); A2815 (Reuban Direct Exam.); A2861 (Purdy Direct
Exam.); A2890 (Herron Direct Exam.); A2995 (Cole Direct Exam.) A3058 (Bateman Direct
Exam.); A3066 (Robinson Direct Exam.); A3282 (Maurice Direct Exam.); A3304 (Vargas Direct
Exam.); A3353 (Schenck Direct Exam.); A3399 (Hamilton Direct Exam.); A3470 (Burd Direct
Exam.); A3605 (Gross Direct Exam.); A3770 (Elizabeth McGuiness Direct Exam.);A3794
(Ziamba Direct Exam.);A3881 (Vasilikos Direct Exam.); A3908 (Moore Direct Exam.); A3969
(Van Horn Direct Exam.); A4113 (Thomas Direct Exam.); A4187 (Cousin Direct Exam.); A4239
(Elder Direct Exam.) A4254 (Haw-Young Direct Exam.) A4344 (Zolper Direct Exam.); A4350
(Horsey Direct Exam.); A4677 (Moreau Direct Exam.).
101
See id. at A4525 (Bayline Direct Exam.); A4560 (Robinson Direct Exam.); A4735 (Gulli Direct
Exam.); A4810 (Marshall Direct Exam.); A4847 (August Direct Exam.); A4898 (Mitchell-Rogers
Direct Exam.).

21
gave their closing arguments and the jury began its deliberations.102 The following

day, on July 1, the jury returned a verdict finding McGuiness guilty of Counts I, III,

and IV and not guilty of Counts II and V.103

D. Post-Trial Proceedings

After the jury returned its verdict, McGuiness moved for judgment of acquittal

and a new trial.104 In her Motion for Judgment of Acquittal, McGuiness contended

that the court should enter judgment in her favor on Counts I, III, and IV.105 As to

Count I, McGuiness posited that the State failed to introduce evidence sufficient for

a rational jury to conclude that Daughter had received benefits that other casual-

seasonal employees in her same position did not receive.106 As to Count III,

McGuiness reasserted her argument that Count III failed to charge her with criminal

conduct.107 She alternatively argued that the State had not offered any evidence as

to McGuiness’s mens rea when structuring the MCG and Innovate Consulting

contracts and therefore did not meet its burden of proof.108

102
Id. at A4974 (State’s Closing Argument); A4006 (Defense’s Closing Arguments); A5077
(Charge to the Jury). McGuiness raised several motions during trial, some of which renewed
arguments she raised before trial began. To the extent these motions are relevant to the appeal, we
identify them within our analysis of McGuiness’s appellate arguments.
103
Id. at A5115–16 (Verdict).
104
Id. at A1104 (Mot. for Judgment of Acquittal); A1474 (Mot. for New Trial).
105
Id. at A1141 (Mot. for Judgment of Acquittal).
106
Id. at A1106–08 (Mot. for Judgment of Acquittal).
107 Id. at A1120, n.2 (Mot. for Judgment of Acquittal).
108 Id. at A1116–24 (Mot. for Judgment of Acquittal).

22
 McGuiness also argued that the court should enter a judgment of acquittal as

to Count IV because (i) a guilty verdict on that count was predicated on the jury

finding her guilty of Counts I or III—which she argued could not stand,109 (ii) the

State had failed to present evidence that she knowingly committed an unauthorized

act when she hired Daughter,110 (iii) the State failed to present evidence that

McGuiness intended to benefit her own financial interests when she hired

Daughter,111 and (iv) Count IV was multiplicitous of Counts I and III and therefore

offended the Constitution’s prohibition against double jeopardy.112

In her Motion for a New Trial, McGuiness argued that a new trial was justified

because (i) the State continued to withhold exculpatory evidence in violation of its

Brady obligations even after the Court denied McGuiness’s Motion to Dismiss the

Indictment;113 (ii) the court improperly admitted character evidence as to Count V,

which then spilled over into the other counts for which she was found guilty;114 (iii)

the State’s theory of Count III evolved such that McGuiness did not have adequate

notice of the conduct for which she was charged;115 (iv) the court improperly

109
Id. at A1125 (Mot. for Judgment of Acquittal).
110
Id. at A1126 (Mot. for Judgment of Acquittal).
111
Id. at A1128 (Mot. for Judgment of Acquittal).
112
Id. at A1132–35 (Mot. for Judgment of Acquittal).
113
Id. at A1477 (Mot. for New Trial).
114
Id. at A1502 (Mot. for New Trial).
115
Id. at A1518 (Mot. for New Trial).

23
commented on Investigator Robinson’s credibility when it stated that McGuiness’s

counsel was unfairly implying that Robinson was “lying”;116 (v) Count IV was

multiplicitous of Counts I and III;117 and (vi) the cumulative effect of these errors

mandated a new trial.118

The Superior Court addressed both motions in an August 30, 2022 opinion in

which it denied McGuiness’s Motion for a New Trial, granted her Motion for

Judgment of Acquittal as to Count III, and denied her Motion for Judgment of

Acquittal as to Counts I and IV.119 In granting her Motion for Judgment of Acquittal

as to Count III, the court agreed with McGuiness that the State had failed to prove

that she intentionally fragmented one contract into multiple contracts in violation of

Section 6981.120 The court further held that because Section 6981 does not

criminalize conduct that fragments multiple payments under one invoice, the State’s

evidence of such conduct was not sufficient to support a conviction.121

The court then denied McGuiness’s Motion for Judgment of Acquittal as to

Counts I and IV, reasoning that the State had met its burden of proving that Daughter

received benefits that other casual-seasonal employees did not—namely the ability

116
Id. at A1526 (Mot. for New Trial).
117
Id. at A1528 (Mot. for New Trial).
118
Id. at A1529 (Mot. for New Trial).
119
State v. McGuiness, 2022 WL 3971195 (Del. Super. Aug. 30, 2022).
120
Id. at *5.
121
Id.

24
to work remotely while attending college.122 The court further held that Count IV

included conduct that exceeded the conduct within the scope of Counts I and III such

that Count IV was not multiplicitous.123

The Superior Court also denied McGuiness’s Motion for a New Trial. As to

her Brady arguments, the court held that she had not sufficiently alleged ongoing

Brady violations because the State’s delayed production of ESI did not amount to a

suppression of exculpatory evidence, and the State was not aware of potential

witnesses who could have testified that Daughter’s benefits were equivalent to

OAOA’s other casual-seasonal employees.124

As to McGuiness’s remaining arguments in support of her Motion for a New

Trial, the court held that evidence of McGuiness’s conduct toward employees before

September 11, 2021, was relevant and properly admitted as to Count V because the

State argued that McGuiness knew of the investigation well before she received the

grand jury subpoena.125 The court rejected McGuiness’s contention that the court’s

comment regarding Robinson’s testimony was improper, holding that the trial judge

has discretion to control the mode of defense counsel’s cross-examination and, even

122
Id. at *3.
123
Id. at *7.
124
Id. at *8–9.
125
Id. at *10. The court also held that McGuiness’s argument regarding Count III was moot
because the court granted her Motion for Judgment of Acquittal as to Count III. Id. at *11.

25
if the comment was improper, the jury instructions cured any prejudice.126 Finally,

the court denied the motion as to cumulative error because McGuiness failed to

demonstrate that any of the errors caused her prejudice that resulted in an unfair

trial.127

The Court sentenced McGuiness on October 19, 2022, to serve one year at

Level V incarceration suspended for one year at Level I probation for Count I, and

one year at Level V incarceration suspended for one year at Level I probation for

Count IV.128 The court also ordered McGuiness to pay a $10,000 fine for Count I,

restitution for Count IV, and the costs of the prosecution.129 McGuiness timely

appealed her convictions.

ANALYSIS
McGuiness raises eight arguments on appeal. In her first two arguments, she

contends that the State violated her due process rights under Brady v. Maryland by

delaying the production of voluminous discovery until less than two months before

trial was scheduled to start and by impeding her efforts to investigate and raise

selective or vindictive prosecution defenses. McGuiness next challenges each of her

126
Id. at *11–12. The court also held that McGuiness’s multiplicity argument was unsupported
for the same reasons it denied McGuiness’s Motion for Judgment of Acquittal as to Count IV—
that Counts I, III, and IV encompassed different conduct. Id. at *13.
127
Id.
128
App. to Opening Br. at A5146 (Sentencing Tr.).
129
Id.

26
convictions for various reasons, including that (i) the State did not admit sufficient

evidence to support her conviction for Count I; (ii) the improper admission of

character evidence relating to Count V prejudiced the jury’s consideration of Counts

I and IV; (iii) the trial court’s failure to dismiss Count III before the case was

submitted to the jury resulted in evidence that prejudicially spilled over into the

jury’s deliberations as to the other counts; and (iv) Counts I and IV were

multiplicitous—and therefore violated double jeopardy principles—because they

penalized the same conduct. McGuiness also contends that the Superior Court’s

comments in the jury’s presence concerning Investigator Robinson’s veracity

amounted to an unconstitutional comment on the witness’s credibility and entitle her

to a new trial. Lastly, McGuiness argues that the court erred when it denied her

motion to appoint private counsel at State expense, and she asks the court to remand

that issue for further proceedings.

A. McGuiness’s arguments arising under Brady v. Maryland and its progeny
In her first two arguments on appeal, McGuiness maintains that the State

violated her due process rights by failing to meet its obligation under Brady v.

Maryland130 to disclose exculpatory and impeachment evidence within its

possession. First, McGuiness argues that the State violated her constitutional rights

by producing a large volume of ESI less than two months before her scheduled trial

130
373 U.S. 83 (1963).

27
and by then failing to properly search that ESI for exculpatory evidence. Second,

she contends that she was entitled, under Brady, to the names of the attorneys who

participated in drafting inaccurate statements in the affidavit of probable cause that

supported the warrant to search OAOA files. McGuiness argues that either or both

of these violations entitle her to a new trial. We review questions of law de novo,

including issues surrounding the State’s obligation to disclose exculpatory or

impeachment evidence.131

1. McGuiness is not entitled to a new trial based on the State’s delayed
production of ESI.
McGuiness first argues that the State suppressed a substantial amount of ESI

until two months before trial and that this suppression fatally undermines confidence

in the trial’s fairness and the jury’s verdict. McGuiness contends that the State’s

delayed production of this volume of discovery, coupled with its failure to search the

ESI for exculpatory or impeachment evidence and point McGuiness to it, resulted in

an unfair trial in violation of her due process rights under the Fourteenth Amendment

to the United States Constitution. We disagree that the State’s delayed production

violated Brady and further hold that the proper remedy for the State’s delayed

production, if any, was a continuance of the trial, which the Superior Court offered

and McGuiness refused.

131
Risper v. State, 250 A.3d 76, 87 (Del. 2021); Wright v. State, 91 A.3d 972, 982 (Del. 2014).

28
 Under the United States Supreme Court’s decision in Brady, the government

violates a defendant’s due process rights if the prosecution suppresses or withholds

evidence that is favorable to the defense and material to the defendant’s guilt or

punishment.132 The State’s Brady obligations arise from a prosecutor’s

responsibility to “search for truth” in criminal cases133 and are founded on the

premise that “[s]ociety wins not only when the guilty are convicted but when

criminal trials are fair.”134 Under Brady and its progeny, the State must produce

exculpatory and impeachment evidence in its possession to a defendant when that

evidence could be material to a case’s outcome.135 A prosecutor therefore is charged

with learning of any evidence favorable to the defense and “known to the others

acting on the government’s behalf in the case, including the police.”136

A defendant who alleges that her Brady rights were violated bears the burden

of proving three elements: (1) evidence exists that is favorable to the defendant

because it is exculpatory or impeaching; (2) the State suppressed that evidence; and

132
Smith v. Cain, 565 U.S. 73, 75 (2012); Brady, 373 U.S. 83, 87 (1963) (“[S]uppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the
prosecution.”).
133
Strickler v. Greene, 527 U.S. 263, 281 (1999).
134
Brady, 373 U.S. at 87.
135
Risper, 250 A.3d at 90; Wright, 91 A.3d at 972.
136
Kyles v. Whitley, 514 U.S. 419, 437 (1995); Wright, 91 A.3d at 988.

29
(3) the suppression prejudiced the defendant.137 The State argues that McGuiness

has not met her burden to prove any, let alone all, of these elements.

McGuiness argues that the State’s delayed production of ESI violated Brady

in two ways. First, she maintains that the State had an affirmative obligation to

search the ESI for exculpatory or impeachment information and provide it to

McGuiness, the State failed to do so, and this failure alone warrants a new trial.138

Second, she contends that specific information contained within the ESI was

exculpatory, but the delayed production prevented her counsel from finding that

evidence and using it at trial, which also violated Brady.

As to McGuiness’s first argument, we cannot conclude in these circumstances

that the State’s failure to review every file within the ESI for exculpatory material

violated Brady. Caselaw does not support McGuiness’s contention that Brady

requires the State to meticulously review the ESI—which was obtained from

computers belonging to McGuiness and her daughter—to specifically identify

exculpatory or impeaching information. To the contrary, courts that have considered

similar issues have concluded that the government generally satisfies Brady by

137
United States, v. Bagley, 473 U.S. 667, 674–75 (1985); Giglio v. United States, 405 U.S. 150,
154–55 (1972) (holding that impeachment evidence falls within the State’s Brady obligations);
Risper, 250 A.3d at 90; Starling v. State, 882 A.2d 747, 756 (Del. 2005).
138
Opening Br. at 12.

30
adopting an open file policy,139 ensuring that the file includes the information known

to other government agencies, including the police,140 and directing a defendant to

exculpatory evidence of which the government is aware.141

For example, in U.S. v. Warshak, the Sixth Circuit Court of Appeals held that

the government satisfied Brady by adopting an open file policy, even though the file

contained a substantial amount of ESI that the government had not painstakingly

reviewed for exculpatory evidence.142 In so holding, the Warshak court expressly

rejected the same argument that McGuiness advances here, i.e., that the State “was

obliged to sift fastidiously through evidence—the vast majority of which came from

[defendant]—in an attempt to locate anything favorable to the defense.”

139
See, e.g., United States v. Gray, 648 F.3d 562, 567 (7th Cir. 2011) (“To charge prosecutors with
knowledge of exculpatory evidence buried in the computer databases of institutions that collect
and store vast amounts of digitized data would be an unreasonable extension of the Brady rule.
The courts, rightly in our view, have refused to make it. The government is not ‘obliged to shift
fastidiously’ through millions of pages (whether paper or electronic). . . . It is ‘under no duty to
direct a defendant to exculpatory evidence [of which it is unaware] within a larger mass of
disclosed evidence.’”); United States v. Warshak, 631 F.3d 266, 296–98 (6th Cir. 2010) (holding
that the government did not “abdicate” its Brady obligations by adopting an open file policy that
contained millions of electronic documents when there was no evidence that the government acted
in bad faith or deliberately concealed evidence); United States v. Skilling, 554 F.3d 529, 576–77
(5th Cir. 2009) rev’d on other grounds, 561 U.S. 358 (2010) (finding that the government’s use of
an open file policy for a file that consisted of several hundred million pages of documents did not
violate Brady); United States v. Gross, 424 F. Supp. 3d 800, 803–04 (C.D. Cal. 2019) (holding that
the government’s open file production of ESI consisting of six million pages of documents did not
violate Brady when the government did not conceal exculpatory material in the voluminous
production, pad its file with pointless information to increase the defendant’s burden, or otherwise
act in bad faith).
140
Kyles, 514 U.S. at 437; Wright, 91 A.3d at 988.
141
Gray, 648 F.3d at 567; Starling, 130 A.3d at 333; Wright, 91 A.3d at 988.
142
Warshak, 631 F.3d at 296–98.

31
 The Warshak court relied, in part, on the Fifth Circuit Court of Appeals’

decision in United States v. Skilling,143 which similarly rejected the defendant’s

argument that the government’s open file consisting of several hundred million pages

of documents resulted in “the effective concealment of a huge quantity of

exculpatory evidence.”144 The Seventh Circuit Court of Appeals also has adopted

the Warshak and Skilling courts’ interpretation of Brady.145 McGuiness has not

pointed to a single authority supporting her contrary position.

All those courts cautioned that the government must act in good faith and

refrain from either padding an open file with superfluous information or producing

the file in a manner that impedes a defendant’s ability to review the information.146

This interpretation of Brady is consistent with its due process roots. Brady is

intended to ensure that a defendant receives a fair trial and can present an effective

defense. At the same time, the prosecution cannot realistically be charged with

searching each electronic document within a voluminous file for material that may

be exculpatory.147

143
554 F.3d 529 (5th Cir. 2009).
144
Id. at 576.
145
Gray, 648 F.3d at 567.
146
Warshak, 631 F.3d at 297–98; Skilling, 554 F.3d at 577.
147
It is not disputed that the government must point a defendant to exculpatory evidence of which
the government becomes aware. That is not the issue raised in this appeal.

32
 In McGuiness’s case, the trial court found that the State acted in good faith in

producing the ESI, and McGuiness points to no evidence that the State intentionally

padded the production in order to conceal Brady material. The State provided the

ESI to McGuiness as soon as it was available, and the record does not support the

conclusion that the State intentionally or recklessly delayed processing the ESI to

prevent McGuiness from using it in her own defense.148 Rather, the encryption and

filtering issues that contributed to the delayed production were matters largely

outside the State’s control. Once decrypted, the files were produced to McGuiness

even before they were provided to the prosecution team. If anything, the delayed

production prejudiced the State because the Superior Court sanctioned the State for

violating discovery deadlines by precluding the prosecution from using the newly

produced ESI in its case-in-chief.149 We can discern no Brady violation from these

facts.

McGuiness also argues that the delayed production prevented her from finding

and using exculpatory evidence at trial. She points to two categories of

148
McGuiness, 2022 WL 1580601, at *3 (Del. Super. May 18, 2022) (“While the State[’s]
justification reflects their failure to use a commonsense management of potential critical
documents, there is nothing to suggest they did so in bad faith or to obtain a litigation advantage.”).
See Gray, 648 F.3d at 567–68 (“the government cannot make disclosure until the exculpatory
evidence comes into its possession . . . that did not happen here until mid-trial; nor was the delay
deliberate or otherwise in bad faith. As soon as the government received the evidence it turned it
over to the defense—which had time to use it but did not do so.”).
149
McGuiness, 2022 WL 1580601, at *4 (Del. Super. May 18, 2022).

33
“exculpatory” documents that she argues were effectively suppressed by the State’s

delayed production: (1) eleven “List of Authorized Positions” reports (the “LAP

Reports”),150 and (2) OAOA documents bearing Daughter’s name or listing her as

the file custodian.151 McGuiness does not carry her burden of proof under Brady

with respect to any of this evidence.

First, McGuiness has not established that the evidence to which she points is

exculpatory. Evidence is exculpatory if it is “material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.”152

McGuiness argues that the LAP Reports identify other casual-seasonal employees

who received some of the same employment benefits as Daughter, thereby

undermining the State’s theory that Daughter received benefits not available to other

employees in her same classification. McGuiness argues that these reports show that

other casual-seasonal employees were paid more than Daughter in the relevant

timeframe, and at least three other casual-seasonal employees were permitted—like

Daughter—to work remotely while attending college. As explained below regarding

the sufficiency of the evidence for Count I, even without these LAP Reports, the

defense presented evidence to the jury that OAOA casual-seasonal employees hired

150
Opening Br. at 15–17.
151
Reply Br. at 4–5.
152
Brady, 373 U.S. at 87.

34
in 2021 received benefits similar to Daughter, and the jury nevertheless convicted

McGuiness of Count I. McGuiness has not established the materiality of this

additional evidence.

McGuiness fares no better with her argument that a group of OAOA

documents were exculpatory because they contained Daughter’s name or listed her

as file custodian. McGuiness advances this argument in a single paragraph in her

reply brief without explaining how the documents weaken the State’s position that

Daughter was paid without performing any work.153 The fact that OAOA documents

used Daughter’s name or listed her as file custodian does not demonstrate that

Daughter performed work commensurate with her compensation, and McGuiness

does not otherwise elaborate on this argument.

Second, McGuiness has not shown that the State suppressed the ESI obtained

from the laptops. McGuiness correctly points out that suppression under Brady is

not limited to cases where the government altogether fails to produce exculpatory or

impeachment evidence to a defendant. Suppression also occurs when the

government’s belated disclosure of exculpatory or impeachment evidence precludes

153
McGuiness did not mention this category of documents in her opening brief, and the argument
therefore is waived. Supr. Ct. R. 14(b)(vi)(A)(3) (“The merits of any argument that is not raised
in the body of the opening brief shall be deemed waived and will not be considered by the Court
on appeal.”). Moreover, McGuiness argues that these documents were found in a “cursory
analysis” of the ESI, directly contradicting her contention that the defense team could not
effectively use the ESI. Reply Br. at 4.

35
a defendant from effectively presenting or using the evidence.154 But the State

cannot disclose evidence that it does not have, and the record shows that the State

provided the ESI to McGuiness as soon as it was available. The delayed production

was directly attributable to the decryption and filtering the State was required to

undertake to convert the ESI to a useable format.

McGuiness also has not shown that the delay prevented her counsel from

using the material “with some degree of calculation and forethought.”155 Once the

ESI was decrypted, the State produced it in a searchable format. When the

prosecution team obtained access to the ESI—which was after McGuiness received

it—the State provided McGuiness with a report regarding the materials contained in

the ESI. Additionally, at least some of the evidence included in the ESI was

duplicative of evidence provided to McGuiness in December 2021, including OAOA

network files, McGuiness’s and Daughter’s state email records, and OAOA

employees’ correspondence with Daughter using her personal email account. The

ESI was drawn from computers that belonged to McGuiness and Daughter, who

presumably were familiar with their contents and able to assist counsel with

154
Risper, 250 A.3d 76, 91 (“[t]he opportunity for use under Brady . . . [includes] the opportunity
for a responsible lawyer to use the information with some degree of calculation and forethought.”)
(quoting Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001)); Dickens v. State, 437 A.2d 159 (Del.
1981) (“[w]hile the State may have violated the rule in [Brady], the defense has not demonstrated
that the tardy disclosure prevented it from effectively presenting the evidence.”).
155
Risper, 250 A.3d at 91 (quoting Leka, 257 F.3d at 101).

36
identifying relevant material. Moreover, the trial court offered McGuiness a

continuance, which would have allowed her counsel additional time to utilize the

ESI. McGuiness made the strategic decision to decline the continuance because of

her political plans regarding the election, but that choice is not a basis on which she

may seek a new trial.

Finally, McGuiness has not shown that she was prejudiced by the delayed

production. Evidence is “material” within Brady’s prejudice prong when “there is a

reasonable probability that, had the evidence been disclosed, the result of the

proceeding would have been different.”156 Although a defendant is not required to

show that disclosure of the suppressed evidence would have resulted in an acquittal,

Brady also does not require a reviewing court to order a new trial whenever a

defendant turns up “evidence possibly useful to the defense but not likely to have

changed the verdict.”157 Ultimately, the question is whether the government’s

suppression of evidence undermines confidence in the trial’s outcome.158 The

evidence McGuiness identified, even if possibly useful to her defense, was not likely

to change the jury’s verdict. To the contrary, its exculpatory value was at best

questionable, and even on appeal McGuiness could not identify material within the

156
Smith, 565 U.S. at 75 (quoting Cone v. Bell, 556 U.S. 449, 469–70 (2009)).
157
Wright, 91 A.3d at 988 (quoting Giglio, 405 U.S. at 154).
158
Id.

37
production that carried a reasonable likelihood of changing the trial’s outcome. Her

Brady claim regarding the ESI therefore fails.

2. McGuiness is not entitled to a new trial or to additional discovery
relating to her vindictive or selective prosecution theories.

McGuiness next argues that she was entitled under Brady to know the names

of the attorneys who contributed to false statements contained in the September 2021

search warrant for OAOA files. She argues that the trial court’s refusal to compel

the State to disclose that information prevented her from exploring selective and

vindictive prosecution defenses.

McGuiness first raised the specter of selective or vindictive prosecution in her

initial discovery requests, which sought, among other things, the production of (i)

state agency personnel policies prohibiting or limiting nepotism in State

employment; (ii) contracts for professional services in the amount of $50,000 or less

entered into by the DOJ or any other state agency within a specified date range; and

(iii) the identity of, and compensation received by, any person, firm, or entity

employed by the DOJ or the State of Delaware who made “any campaign

contributions” during a specified date range.159 The State objected to those requests,

although it produced a copy of the DOJ’s anti-nepotism policy. McGuiness then

159
McGuiness, 2022 WL 1184407, at *3 (Del. Super. Apr. 13, 2022).

38
moved to compel, arguing that the evidence sought was relevant to a “selective

prosecution defense.”160

The trial court granted McGuiness’s motion in part, holding that she had

presented “a ‘colorable basis’ for a selective prosecution defense” by alleging that

she was the first person criminally prosecuted under 29 Del. C. §§ 5805 and 6903,

even though others in state government acted similarly.161 Based on McGuiness’s

allegations, the court ordered the State to produce the following information:

1. The name and job description of any employee, full-time or
seasonal, who is or was hired by the office of a statewide elected official
and who fits within the category of a “close relative” as defined by
Chapter 29 of the Delaware Code, between January 1, 2019, and the
present[;] and[]
2. All professional service contracts in the amount of $50,000 or
less, between January 1, 2019 and the present that were approved by
the Attorney General and/or the Governor.162

The trial court denied the motion to compel as to all the other information

McGuiness sought.

In April 2022, McGuiness filed a motion seeking an evidentiary hearing to

establish that law enforcement included false allegations in the affidavit supporting

the September 2021 search warrant application and that the fruits of that warrant

160
Id. at *4–5.
161
Id. at *5.
162
Id. at *6.

39
therefore should be suppressed under Franks v. Delaware.163 The trial court

conducted an evidentiary hearing at which Investigator Robinson testified about the

averments in the warrant application as compared to the facts known to the DOJ at

the time it applied for the warrant.164 At the hearing’s conclusion, the trial court held

that the information contained in Paragraph 24 of the affidavit was “critical” to the

application, “inaccurate,” and “placed in there to imply that the defendant reduced

invoices to less than $5,000 to avoid oversight by the [Division] of Accounting.”165

The court therefore suppressed the documents related to the false statements.166

At trial, Robinson testified several times that the warrant’s inaccuracies were

attributable to the “investigative team” as a whole, including multiple lawyers.167

Robinson’s testimony during the Franks hearing had not referred to other team

members’ participation in drafting the affidavit. Robinson also acknowledged at trial

that several of the statements were “false” and contrary to other information known

at the time.168 Based on Robinson’s trial testimony, McGuiness asked the State to

(i) identify the attorneys who participated in the affidavit’s drafting, and (ii) produce

163
438 U.S. 154, 155 (1978). See App. to Opening Br. at A699–758 (Defendant’s Mot. to Suppress
and Request for a Franks Hearing).
164
See App. to Opening Br. at A2451–2531 (Suppression Hearing Tr.).
165
Id. at 2528–29 (Suppression Hearing Tr.).
166
Id. The Court held that the State could use the documents if it established that it obtained them
from a source independent of the warrant.
167
Id. at A4481, A4487–88, A4494–96 (Trial Tr. – Robinson).
168
Id. at A4484, A4486, A4487 (Trial Tr. – Robinson).

40
any communications between Robinson and any DOJ lawyer or investigator

regarding the affidavit.169 The State told McGuiness that the members of the

investigative team involved in drafting the affidavit included lead trial counsel and

the Chief Deputy Attorney General, as well as other DOJ attorneys.170 The State,

however, refused to produce any communications regarding the affidavit’s contents,

and the trial court denied McGuiness’s motion to compel any such production.171

McGuiness argues on appeal that she was entitled under Brady to know the

names of the attorneys who drafted the inaccurate statements and to see their

communications regarding the warrant application. She contends that the evidence

would have been exculpatory or impeaching because it would have (i) contributed

to her investigation and possible use of defenses for selective or vindictive

prosecution, and (ii) undermined the investigation’s thoroughness and good faith.

McGuiness again fails to carry her burden with respect to Brady, even when

we consider this evidence in combination with the State’s delayed production of

ESI.172 First, McGuiness has not shown that the names of the attorneys who

169
Id. at A1989 (Email from Defense Counsel to DOJ).
170
Id. at A4554–55 (Trial Tr.).
171
Id. at A4559 (Trial Tr.).
172
See Wright, 91 A.3d at 990 (holding that a reviewing court must consider the cumulative
prejudicial effect of undisclosed Brady evidence); cf. Kyles, 514 U.S. at 440–41 (reversing a
conviction because it was unclear whether the Court of Appeals considered the cumulative
materiality of the Brady evidence).

41
participated in drafting the affidavit or the investigative team’s internal

communications regarding those averments were remotely related to any cognizable

claim for selective or vindictive prosecution. Although McGuiness places

significant emphasis on the fact that the trial court previously held that she had

alleged a “colorable” basis for a selective prosecution defense, that finding did not

entitle her to unlimited discovery into tangential information in support of theoretical

defenses for which she adduced no further support. Second, McGuiness has not

shown that the trial court’s refusal to compel production of this information

prejudiced her defense in this case.

McGuiness’s Brady claim first falters because she failed to show that the

information would have been exculpatory or impeaching. Specifically, she does not

explain how the information at issue would help her investigate or prove either

selective or vindictive prosecution. It is true that the State may not selectively

enforce the law based on a defendant’s protected status, such as race or gender.173

Selective enforcement of that sort would violate the Fourteenth Amendment’s Equal

Protection Clause.174 But a defendant’s burden to prove selective prosecution or

selective enforcement is a demanding one.175

See Whren v. United States, 517 U.S. 806, 813 (1996); Drummond v. State, 909 A.2d 594, 2006
173

WL 2842732, at *2 (Del. Oct. 5, 2006) (TABLE).
174
Whren, 517 U.S. at 813.
175
Drummond, 2006 WL 2842732, at *2 (citing United States v. Armstrong, 517 U.S. 456, 465
(1996)).

42
 To make a prima facie case of selective prosecution, two elements must
be established. The defendant must show that (1) the policy to
prosecute or enforce the law had a discriminatory effect and (2) it was
motivated by a discriminatory purpose. To show a discriminatory
effect, the defendant must show that a similarly situated person [not in
the protected class] could have been arrested for the same offense for
which the defendant was arrested, but was not. To show discriminatory
purpose, the defendant must demonstrate that intent to discriminate was
a ‘motivating factor in the decision to enforce the criminal law against
the defendant.’176

McGuiness did not attempt to argue or provide a basis for any of these

elements in either the trial court or on appeal. McGuiness never identified the

protected class in which she contends she falls. She likewise has not explained how

the evidence at issue would have helped her make out a prima facie showing of

selective enforcement.

McGuiness has similarly failed to identify any factual basis to support a

vindictive prosecution claim.177 The United States Supreme Court has recognized

that claims for vindictive prosecution may arise when an individual is prosecuted

because they exercised constitutionally protected rights such as freedom of speech

or the right to appeal a conviction.178 McGuiness has neither articulated what

constitutional right she ostensibly exercised that prompted the prosecution nor

176
Drummond, 2006 WL 2842732, at *2 (internal quotations and citations omitted).
177
We note that the trial court never found that McGuiness articulated even a “colorable” basis for
a vindictive prosecution claim. Compare McGuiness, 2022 WL 1184407, at *3 (Del. Super. Apr.
13, 2022) (“The Court finds that Defendant presents a ‘colorable basis’ for a selective prosecution
defense and will permit discovery.”).
178
See Acara v. Cloud Books, Inc., 478 U.S. 697 (1986); Blackledge v. Perry, 417 U.S. 21 (1974).

43
explained how the purported Brady evidence would be relevant to establishing a

vindictive prosecution claim.

McGuiness also does not carry her burden with respect to Brady’s prejudice

component. Even when we consider this evidence cumulatively with the State’s late

production of ESI, McGuiness has not shown that there is a reasonable probability

that the additional information would have changed the jury’s verdict. McGuiness

argues that the information would have undermined the jury’s confidence in the

investigation. But McGuiness pointedly demonstrated to the jury that the

investigative team obtained a search warrant based on an affidavit that contained

false statements.179 And McGuiness emphasized that evidence in closing arguments

to the jury:

Here's what you know for sure: Chief Investigator Robinson made
repeated false statements under oath in a search warrant application in
front of a judge and then to a grand jury, and in this trial . . . we learned
it wasn’t just his mistake. That search warrant was reviewed by a
special team of investigators and lawyers and they still got it horribly
wrong. Can you trust that special team of investigators and lawyers to
get it right now?180

A review of the trial record demonstrates that McGuiness’s counsel effectively

highlighted the deficiencies in the State’s investigation. She was permitted to

present evidence of those deficiencies and argue their implications to the jury.

179
See App. to Opening Br. at A4481–4574 (Trial Tr.).
180
Id. at A5008 (Trial Tr.). See also id. at A5016–17 (pointing out several times that statements in
the affidavit were false and the investigation therefore could not be trusted).

44
McGuiness has not established that the individual attorneys’ names or the

investigative team’s internal communications were reasonably likely to alter the

jury’s verdict.

For all the foregoing reasons, we conclude that the State did not violate

McGuiness’s due process rights under Brady v. Maryland.

B. The sufficiency of the evidence supporting Count I

McGuiness next argues that the trial court erred in denying her motion for

judgment of acquittal as to Count I. We review a trial court’s decision on a motion

for judgment of acquittal de novo, specifically deciding “whether any rational trier

of fact, viewing the evidence and all the reasonable inferences to be drawn therefrom

in the light most favorable to the State, could find the defendant guilty beyond a

reasonable doubt of all the elements of the crime.”181

Count I charged McGuiness with Conflict of Interest relating to the hiring and

supervision of Daughter as an OAOA casual-seasonal employee. The charge arose

under 29 Del. C. § 5805, which defines “prohibitions relating to conflicts of interest”

for State employees, officers, and officials. Section 5805 relevantly provides:

a) Restrictions on exercise of official authority. (1) No state employee,
state officer or honorary state official may participate on behalf of the
State in the review or disposition of any matter pending before the State
in which the state employee, state officer or honorary state official has
a personal or private interest, provided, that upon request from any
person with official responsibility with respect to the matter, any such
181
Hopkins v. State, 293 A.3d 145, 150 (Del. 2023).

45
 person who has such a personal or private interest may nevertheless
respond to questions concerning any such matter. A personal or private
interest in a matter is an interest which tends to impair a person’s
independence of judgment in the performance of the person’s duties
with respect to that matter.
(2) A person has an interest which tends to impair the person’s
independence of judgment in the performance of the person’s duties
with respect to any matter when:

a. Any action or inaction with respect to the matter would result in a
financial benefit or detriment to accrue to the person or a close relative
to a greater extent than such benefit or detriment would accrue to others
who are members of the same class or group of persons;
For purposes of Count I, the State was required to prove that McGuiness was

a “state officer” at the time of the charged offense, she participated on the State’s

behalf in reviewing or disposing of a matter pending before the State, and she had a

personal or private interest in that matter as defined by Section 5008.182 The trial

court instructed the jury that the “simple hiring of one’s close relative, without more,

is not a crime.”183 On appeal, McGuiness only challenges whether the State

presented sufficient evidence regarding Count I’s “personal or private interest”

element.

Count I’s “personal or private interest” element required the jury to decide

whether, as a result of her employment with OAOA, financial benefits accrued to

Daughter that were greater than those received by “others who are members of the

182
See App. to Opening Br. at A1073–74 (Jury Instructions).
183
Id. at A1074 (Jury Instructions).

46
same class or group of persons.”184 McGuiness argues that, in denying her motion

for judgment of acquittal, the trial court improperly limited its comparison of

Daughter’s employment benefits to those received by the handful of casual-seasonal

employees hired at the same time as Daughter.185 McGuiness further argues that,

even if that small group comprised the “class or group of persons” to which Daughter

should be compared, the State did not present sufficient evidence of the benefits

received by that group.186

Having reviewed the record, we conclude that the trial court properly denied

McGuiness’s motion for judgment of acquittal as to Count I. The jury was charged

with making the factual determination as to which employees fell within the “same

class or group of persons” as Daughter. McGuiness argued to the jury that the group

should include all OAOA’s casual-seasonal workers employed in 2020 and 2021.187

The State presented the jury with two alternative theories: (1) the relevant class or

group of persons comprised only those casual-seasonal employees who, like

Daughter, were employed at the beginning of the COVID-19 pandemic and before

McGuiness knew she was under investigation;188 and (2) even if the jury considered

184
29 Del. C. § 5008(2)(a); see App. to Opening Br. at A1073 (Jury Instructions).
185
Opening Br. at 28–29.
186
Id. at 29–30.
187
See App. to Opening Br. at A5026–27, A5038 (Trial Tr.).
188
See id. at A5063–64 (Trial Tr.).

47
the broader group for which McGuiness advocated, including those casual-seasonal

employees hired in 2021, none of the employees received the same cumulative

benefits as Daughter.189

The State presented evidence in support of both its theories, and a rational

trier of fact could have found McGuiness guilty beyond a reasonable doubt under

either theory. As to the group of employees to whom Daughter should be compared,

the State presented evidence from which the jury could conclude that the comparator

group should be the casual-seasonal employees hired around the same time as

Daughter. Specifically, the State offered evidence that Daughter and Daughter’s

friend were hired at the beginning of the pandemic as casual-seasonal employees,

were employed without being interviewed by OAOA staff, and were paid more than

two of the other three casual-seasonal workers whom OAOA employed at that

time.190 A number of those employees lost hours at work while Daughter and

Daughter’s friend were working at or close to the maximum hours permitted for

casual-seasonal employees.191 Daughter was allowed to continue working remotely

when she returned to college out of state, but no other casual-seasonal employees

189
See id. at A4978–4982 (Trial Tr.).
190
Id. at A3290 (Maurice Direct Exam), A3059 (Bateman Direct Exam.), A3994 (Van Horn Direct
Exam.), A3779 (Elizabeth McGuiness Direct Exam.), A3807 (Ziamba Direct Exam.); A3314
(Vargas Direct Exam.).
191
Id. at A3099–3101 (Robinson Direct. Exam.).

48
were offered that opportunity until after McGuiness likely was aware that Daughter’s

employment was being scrutinized.192

As to the State’s second theory, the State offered evidence that, even if the

jury considered all of OAOA’s casual-seasonal employees in 2020 and 2021, no

single employee received the same cumulative benefits as Daughter. To this end, the

State offered evidence that no casual-seasonal employee other than Daughter was

permitted to work the number of hours she worked at the hourly rate she received,

while also being permitted to work remotely and “bank” extra hours for use in future

weeks.

Because there was evidence from which a rational jury could find that the

State met the statutory elements of this charge beyond a reasonable doubt, the trial

court correctly denied McGuiness’s motion for judgment of acquittal as to Count I.

C. The trial court’s admission of evidence relating to Count V

McGuiness next argues that the trial court erred in allowing the State to admit

evidence in support of Count V that had no logical relevance to that charge.

McGuiness contends that this inadmissible evidence prejudiced her and constituted

improper character evidence. Count V charged McGuiness with “Act of

Intimidation” on the basis that, while acting in her capacity as an elected official and

Id. at A3061–63 (Bateman Direct Exam.), A3366 (Schenk Cross Exam.), A3776 (Elizabeth
192

McGuiness Direct Exam.).

49
public servant, McGuiness knowingly and maliciously attempted to prevent or

dissuade witnesses from giving testimony against her in the DOJ investigation or the

trial.193 The indictment alleged that between March 1, 2019 and March 25, 2022,

McGuiness surveilled the communications of potential whistleblowers or adverse

witnesses, monitored employees’ email, discriminated against employees who

questioned her misconduct, enacted office policies to limit interactions between

current and former employees, and engaged in several intimidating acts, directly and

indirectly, after she became aware of the investigation into her conduct.194

Under 11 Del. C. § 3532, McGuiness could be found guilty of an Act of

Intimidation if the State proved that she “knowingly and with malice prevent[ed] or

dissuade[d] (or [] attempted to prevent or dissuade) any witness or victim from

attending or giving testimony at any trial, proceeding or inquiry authorized by law.”

McGuiness repeatedly argued to the trial court that she was not aware of the DOJ

investigation until September 11, 2021, when she received a grand jury subpoena,

and any evidence of her conduct toward employees before that date therefore was

irrelevant for purposes of Count V. The State, however, argued that although

McGuiness unquestionably was aware of the investigation when she received the

September 2021 subpoena, the State had evidence that she knew about the

193
Id. at A282 (Superseding Indictment Count V).
194
Id. at A280–82 (Superseding Indictment Count V).

50
investigation before that date and was using “intimidating tactics” to impede

employees from reporting her conduct.195

McGuiness continued to object before and during trial to the relevance of

evidence regarding her conduct toward employees before September 11, 2021.196

The trial court overruled those objections. At trial, the State argued that the evidence

showed McGuiness was aware of the investigation no later than June 2021,197 and

the State further argued to the jury that McGuiness’s other conduct toward

employees, including monitoring their State email in real time, showed that she was

aware of the investigation in 2020.198

The jury ultimately acquitted McGuiness of Count V. She argues on appeal,

however, that the trial court’s evidentiary rulings allowed the jury to hear irrelevant

and inadmissible character evidence that prejudiced the jury’s consideration of the

other charges against her. We review the trial court’s evidentiary rulings for abuse

of discretion.199 “An abuse of discretion occurs when a court has exceeded the

195
Id. at A693 (State’s Response to Def.’s Mot. in Limine).
196
In addition to moving to dismiss Count V, McGuiness also filed a motion in limine to exclude
evidence relating to her conduct before September 2021. The trial court denied that motion. See
Id. at A530 (Mot. in Limine); A2570–71 (Pretrial Hearing Tr.).
197
Id. at A4997–5001 (Trial Tr.). The State’s evidence that McGuiness was aware of the
investigation in June 2021 was based on Robinson’s call to Daughter’s friend on June 15, 2021,
which immediately triggered calls from McGuiness and her Chief of Staff.
198
Id. at A4995–96 (Trial Tr.).
199
Milligan v. State, 116 A.3d 1232, 1235 (Del. 2015).

51
bounds of reason in light of the circumstances, or so ignored recognized rules of law

or practice [] as to produce injustice.”200

In our view, the trial court did not abuse its discretion in admitting most of the

evidence at issue. Although McGuiness maintained throughout trial that she was not

aware of the investigation until she received the subpoena in September 2021, the

trial court properly allowed the State to present evidence to the contrary. The DOJ

began receiving whistleblower complaints in April 2020 alleging that McGuiness

was engaged in misconduct.201 Those complaints came from OAOA employees who

expressed concerns about retaliation.202 The State presented evidence and argued to

the jury that McGuiness’s decision to begin monitoring certain employees’ emails

shortly after the 2020 complaints were made, and her discipline and termination of

whistleblowers in early 2021, was evidence that she was aware of the complaints

and the investigation well before she received the subpoena. The trial court did not

err in concluding that this evidence was relevant or that its probative value was not

substantially outweighed by its prejudicial effect.203 The evidence also was not

improper character evidence; the State presented McGuiness’s conduct toward

200
Chaverri v. Dole Food Co., 245 A.3d 927, 935 (Del. 2021) (en banc) (quoting Senu-Oke v.
Broomall Condo., Inc., 77 A.3d 272, 2013 WL 5232192, at *1 (Del. Sept. 16, 2013) (TABLE)
(ORDER) (citations omitted)).
201
App. to Opening Br. at A4153–54, 4244, 4354–55 (Trial Tr.).
202
Id.
203
See D.R.E. 403. The evidence related directly to one of the indicted charges.

52
employees beginning in April 2020 as direct evidence of the crime for which she

was charged.204

McGuiness argues that the trial court also erred in admitting evidence of her

conduct toward employees in 2019, even before complaints first were made to the

DOJ.205 We agree that this evidence was not relevant to Count V and its admission

therefore amounted to error. The evidence, however, was limited in both scope and

presentation, and we conclude that its admission was harmless.

An error is harmless when, “the evidence exclusive of the improperly

admitted evidence is sufficient to sustain a conviction.”206 The jury acquitted

McGuiness of Count V, but she argues the irrelevant evidence prejudiced the jury’s

consideration of the other counts. The record does not show prejudice occurred in

this instance. The jury’s not-guilty verdict with respect to Count V strongly suggests

that it was not swayed by the irrelevant evidence. McGuiness argues that the jury’s

guilty verdict for Count III establishes prejudice because the trial court later

acquitted McGuiness of this charge.207 But, as we later discuss, the trial court

204
See D.R.E. 403, 404(b).
205
App. to Opening Br. at A3533–38 (trial testimony regarding McGuiness seeking former
employees’ passwords and monitoring employee email in 2019); A3883–98 (trial testimony that
witness worked in 2019 and early 2020 for OAOA before leaving because the environment was
“oppressive” and “toxic”); A4125–30 (trial testimony regarding McGuiness monitoring employee
email and yelling at employees in 2019).
206
Cooke v. State, 97 A.3d 513, 547 (Del. 2014) (quoting Nelson v. State, 628 A.2d 69, 77 (Del.
1993) (citation omitted)).
207
Opening Br. at 40.

53
acquitted McGuiness of Count III because the charge was legally insufficient. And

because we separately have concluded that McGuiness’s conviction for Count IV

must be reversed, Count I is the only remaining count to consider for purposes of

our harmless error analysis. We already have concluded that the admissible evidence

relating to Count I was sufficient to allow the jury to convict McGuiness beyond a

reasonable doubt. The trial court’s error in admitting some of the evidence relating

to Count V therefore does not warrant a new trial.

D. The prejudicial spillover of evidence from Count III to Count IV

McGuiness next argues that she is entitled to a new trial because the Superior

Court’s failure to dismiss Count III before trial allowed the jury to hear “highly

prejudicial evidence and instruction, which spilled over to the remaining

[c]ounts.”208 McGuiness’s argument on this point relies on the doctrine of

“prejudicial spillover,” which addresses whether evidence relating to a vacated

conviction affected the jury’s consideration of any remaining, closely linked

charges.209 Although Delaware has not yet adopted a test for determining whether

prejudicial spillover occurred, the Third Circuit employs a well-defined two-step test

that we believe is an appropriate standard to apply to spillover arguments.210

208
Id. at 42.
209
Wright, 665 F.3d at 575.
210
See, e.g. United States v. Murphy, 323 F.3d 102, 122 (3d Cir. 2003); United States v. Cross, 308
F.3d 308, 318–19 (3d Cir. 2002); United States v. Pelullo, 14 F.3d 881, 898–99 (3d Cir. 1994).

54
 When properly preserved, prejudicial spillover is a question of law that we

review de novo.211 Although the dissent contends that plain error review applies

because this issue was not preserved for appeal, we respectfully disagree.

McGuiness challenged Count III’s legal sufficiency several times before and during

trial, but the trial court consistently rejected that argument and allowed the jury to

consider the evidence and return a verdict. McGuiness could not reasonably be

expected to raise a theoretical prejudicial spillover argument in her post-trial motion

in anticipation that the trial court would finally adopt her legal insufficiency

argument.212

Count III charged McGuiness with “Structuring: Non-Compliance with

Procurement Law” relating to the December 2019 contract that McGuiness executed

with MCG for “communication services.” Because the contract was for $45,000, it

fell below the State’s $50,000 threshold for public bidding. The State, however,

alleged that McGuiness artificially split payments to MCG to reduce the invoices

below $5,000 so that the Delaware Division of Accounting did not need to approve

payments under the contract. The State alleged that McGuiness violated 29 Del. C.

211
See United States v. Fattah, 914 F.3d 112, 186 (3d Cir. 2019) (“We exercise plenary review
over a district court’s denial of a claim of prejudicial spillover.”).
212
Just as a party need not reassert an issue in a motion for reargument in order to preserve it for
appeal, see Allen v. Scott, 257 A.3d 984, 992 (Del. 2021), we cannot realistically expect parties to
re-raise arguments in post-trial motions and also present all the possible permutations of those
previously rejected arguments. To hold otherwise would only increase the burden on our trial
courts.
55
§ 6903 by intentionally subdividing payments under the MCG contract to avoid

compliance with the State’s Procurement Code.213

McGuiness consistently argued to the trial court that Count III was legally

insufficient because it failed to charge her with a criminal offense.214 The trial court

rejected that legal argument both when it denied McGuiness’s pre-trial motion to

dismiss and when it deferred ruling during trial on her multiple motions for judgment

of acquittal as to Count III.215 After trial, however, the court entered judgment of

acquittal in McGuiness’s favor as to Count III, belatedly adopting her view that 29

Del. C. §§ 6891 and 6903 do not criminalize subdividing invoices into amounts less

than $5,000 to avoid review by the Division of Accounting.216 The court held that,

although such conduct violates the State’s accounting procedures, it does not fall

within the conduct criminalized in Section 6903.217

McGuiness now argues on appeal that the trial court’s delay in recognizing

Count III’s legal insufficiency allowed the jury to hear a substantial amount of

evidence that it would not otherwise have heard, and that evidence “spilled over”

into the jury’s consideration of the remaining counts, particularly Counts I and IV.

213
App. to Opening Br. at A278–79.
214
See id. at A317–20 (Def.’s Mot. to Dismiss Count III).
215
McGuiness, 2022 WL 1538488 (Del. Super. May 13, 2022). See also May 17 2022 decision
denying Mot. for reargument; App. to Opening Br. at 4695–4733, 4968–69 (Trial Tr.).
216
McGuiness, 2022 WL 3971195 (Del. Super. Aug. 30, 2022).
217
Id.

56
The State responds that McGuiness has not shown prejudicial spillover in this case,

arguing in particular that the evidence relating to Count III was also relevant—and

therefore independently admissible—with respect to Count IV.218

United States v. Wright provides the clearest statement of the Third Circuit’s

prejudicial-spillover test, which that court has taken to calling the “Wright spillover

test.”219 The Wright test typically applies when two charges are “closely linked” and

an appellate court vacates a conviction on one of them.220 The Third Circuit has,

however, applied the Wright spillover test in the context of a trial court’s acquittal of

one closely linked charge, as happened in this case.221

It is plain that Counts III and IV were closely linked; Count IV charged

McGuiness with Official Misconduct, and some of the misconduct that the State

alleged in Count IV also formed the basis for Count III. Specifically, the State

alleged that McGuiness committed Official Misconduct by (1) hiring Daughter and

Daughter’s friend into State employment and affording Daughter benefits not

available to other state employees (i.e. the conduct that formed the basis for Count

I); or (2) “structuring payments in a no-bid contract to a political campaign

218
Answering Br. at 43–44.
219
See Fattah, 914 F.3d at 188.
220
See Wright, 665 F.3d at 575.
221
See Fattah, 914 F.3d at 188 (“The District Court’s acquittal of Vederman on the RICO count
establishes that step one of the Wright spillover test has been met.”).

57
consulting company” (i.e. the conduct that formed the basis for Count III).222 The

trial court instructed the jury that “[i]n order to find the Defendant guilty of Official

Misconduct, you must unanimously agree that one or both of these allegations have

been established by the State. To be clear, you must be unanimous in which act

occurred, if any.”223 Because the charges are closely linked and the Superior Court

acquitted McGuiness of Count III after trial because of the charge’s legal sufficiency,

it is appropriate to apply the Wright spillover test to determine whether prejudicial

spillover occurred with respect to Count IV.224

The Wright spillover test employs two steps for assessing prejudicial spillover

claims. First, a reviewing court considers “whether the jury heard evidence that

would have been inadmissible at a trial limited to the remaining valid count[s].”225

If the jury did not hear evidence that would have been inadmissible, the inquiry ends

and any conviction on the remaining valid counts stands.226 If, however, any

222
App. to Opening Br. at A1082 (Jury Instructions).
223
Id. at A1082–83 (Jury Instructions).
224
McGuiness argued in passing that her conviction on Count I also resulted from prejudicial
spillover. See Opening Br. at 45. But Counts I and III were not closely linked charges. To the
contrary, they involved entirely separate allegations of misconduct. The Wright prejudicial
spillover test applies only in the context of closely linked charges.
225
Wright, 665 F.3d at 575 (quoting Cross, 308 F.3d at 317).
226
Id.

58
evidence would have been inadmissible, the court proceeds to the second step:

determining whether that evidence was prejudicial.227

Wright’s first step requires us to examine the evidence introduced at trial and

determine whether any evidence would have been inadmissible in a “hypothetical

trial” on the remaining valid counts.228 That analysis can be somewhat textured;

Wright instructs courts to consider, among other things, not only the relevance of

certain evidence but also any likely limitations on relevant evidence’s admissibility

under Rules 403 and 404.229 Wright also, however, “acknowledg[ed] the generous

discretion that [the evidence rules] vest in district courts.”230 In our view, that

discretion—and the associated standard of review we apply to a trial court’s

evidentiary decisions—counsels against concluding that evidence would have been

inadmissible when it is a close question.

Notwithstanding the State’s argument to the contrary, McGuiness meets the

first step of the Wright test. First, even if we accepted the theoretical basis for the

State’s position that Count III evidence would have been independently admissible

to prove Official Misconduct for Count IV, that is not the theory that the State

presented at trial. The record shows that the State effectively treated Count III as a

227
Id.
228
Id.
229
Id. at 576.
230
Id. at 576.

59
predicate offense for Count IV. The State argued to the jury in closing that “if you

find that the defendant committed unauthorized acts, an act unauthorized in Count 1

. . . , Count 2 . . . , or Count 3 of structuring, not all, but any, then you can consider

whether the defendant intended to gain some personal benefit by committing these

acts.”231 The jury instructions likewise came close to treating Counts I and III as

predicate offenses to Count IV. In other words, neither the State’s closing argument

nor the jury instructions suggest that the State pursued the theory that McGuiness’s

invoice splitting amounted to Official Misconduct even if those actions were not

criminal under Count III.

Moreover, even if the State had pursued that theory at trial, it is unlikely that

the trial court would have admitted much of the payment-structuring evidence in the

absence of Count III. The State’s closing argument bears this out. In discussing

Count III, the State noted: “Let’s be real. 90 percent of this trial was seemingly spent

on the intricacies and the technicalities of this one charge.”232 That statement

emphasizes the admissibility concerns that would have arisen regarding this

evidence—including under Rules 403 and 404—had Count III been dismissed

before trial.

231
App. to Opening Br. at A4991–92 (Trial Tr.).
232
Id. at A4986 (Trial Tr.).

60
 Because we conclude that the jury heard evidence that would not have been

admissible without Count III, the Wright spillover test’s first step is satisfied, and we

must examine whether the otherwise inadmissible evidence was prejudicial. The

Wright test prescribes four factors that a reviewing court weighs to determine

whether the evidence was prejudicial, specifically whether:

(1) the charges are intertwined with each other; (2) the evidence for the
remaining counts is sufficiently distinct to support the verdict on these
counts; (3) the elimination of the invalid count significantly changed
the strategy of the trial; and (4) the prosecution used language of the
sort to arouse a jury.233

As with most factor-based tests, the analysis is a fact-intensive, case-by-case inquiry.

We first must consider whether Counts III and IV are so intertwined “as to

create substantial confusion on the part of the jury.”234 Courts undertaking this

inquiry have considered, among other things, whether the same facts underlie both

the defective count and the valid count,235 and whether the jury instructions

“intermingled” the prosecution’s legal theories.236 “[M]ere relatedness,” however,

is not always enough to find prejudice.237 McGuiness has established that Counts

233
Wright, 665 F.3d at 575 (quoting Murphy, 323 F.3d at 118).
234
United States v. Lee, 612 F.3d 170, 181 (3d Cir. 2010) (quoting Pelullo, 14 F.3d at 898).
235
See Wright, 665 F.3d at 576–77 (“The same facts underlay both Count Ten (honest services)
and Count Twelve (traditional) . . . .”).
236
Id.
237
See Fattah, 914 F.3d at 188. In Fattah, the Third Circuit held that a predicate offense for bribery
was not intertwined with the compound racketeering charge. But Fattah involved the converse to
the situation presented here; in Fattah the trial court acquitted the defendant of the compound
racketeering offense. The Third Circuit held that “[r]egardless of the evidence pertaining solely to
61
III and IV were so intertwined that there was a risk of confusion on the jury’s part.

The instructions given to the jury came close to treating Count III (Structuring) as a

predicate to Count IV (Official Misconduct). Moreover, the State expressly argued

to the jury that, if it found McGuiness guilty of Count III, it could consider whether

she obtained a personal benefit from structuring the payments in the manner alleged

and therefore convict her of Count IV.

The second factor in step two of the Wright test examines whether there was

evidence supporting the remaining valid counts that did not also support the

defective count.238 In other words, whereas the first factor examines the charges, the

second factor examines the evidence supporting the charges. This factor weighs

against finding prejudicial spillover in this case. Even if evidence related to the

Structuring charge had been excluded entirely, the jury received sufficient evidence

to convict McGuiness of Conflict of Interest, which also supported the Official

Misconduct charge.

the [racketeering] conviction, the evidence supporting [] the bribery charges . . . would have
remained the same.” Id. Here, however, McGuiness was acquitted by the court of the predicate
offense, and the evidence admitted for the compound offense would not have been the same.
Although Count IV could have remained in the case because it also was premised on Counts I and
II, the evidence admitted for Count IV would not have included the Count III evidence.
238
See Wright, 665 F.3d at 577; Lee, 612 F.3d at 182 (“The second Pelullo factor asks whether the
evidence relating to each charge was sufficiently distinct that a verdict as to one could be supported
without reference to evidence regarding the other.”).

62
 Next, when addressing whether elimination of the invalid count would have

significantly changed the government’s trial strategy, a reviewing court “assess[es]

the extent to which the parties would have called different witnesses and,

correspondingly, the extent to which their opening and closing arguments would

have differed.”239 In Wright, the court considered the evidence and arguments that

the parties “would not have needed to present” if the defective charge had not

proceeded to trial.240 As we previously explained, if the Superior Court had

dismissed Count III before trial, the parties arguably would not have offered or

addressed any evidence involving the MCG contract. At a minimum, the trial court

likely would not have permitted the State to spend such a substantial portion of the

trial presenting that evidence. We cannot confidently conclude that the State’s trial

strategy (or McGuiness’s for that matter) would have been the same had Count III

not remained in the case.241

Finally, in evaluating the prosecution’s use of language to arouse the jury, a

reviewing court generally focuses on the government’s opening statements and

closing arguments.242 The court considers whether the prosecution’s language was

so pejorative or inflammatory as to damage the defendant in ways that would not

239
Wright, 665 F.3d at 577 (citing Lee, 612 F.3d at 182–83; Pelullo, 14 F.3d at 898–99).
240
Id.
241
The State did not address this factor in its brief.
242
See Wright, 665 F.3d at 577.

63
have occurred if the improper charge was not at issue.243 We agree with McGuiness

that there is a substantial risk that the State’s rhetoric regarding Count III inflamed

the jury in this case. For example, the State was permitted to portray McGuiness as

someone who deliberately broke the State’s fiscal rules, which are the same rules

that she was elected to ensure others followed.244

Accordingly, three of the four factors in Wright’s prejudice test support finding

prejudicial spillover. Although the second factor weighs against finding prejudice,

we are not persuaded that this single factor outweighs our findings with respect to

the other three. We recognize that the jury unanimously convicted McGuiness of

Count I, which also served as a predicate to Count IV, but we cannot confidently

conclude that the jury would have convicted McGuiness of Count IV irrespective of

the evidence relating to Count III.

We reach that conclusion because the State blended Counts I and III when it

argued Count IV’s personal-benefit element to the jury. Recall that, to convict

McGuiness of Official Misconduct in Count IV, the jury needed to find that she

243
Id.; Cross, 308 F.3d at 317 (“Of the four factors, this one most clearly highlighted the damage
done by the evidence related to Count 54. Because the District Court allowed the Government to
introduce the evidence supporting Count 54, the defendant ‘was not only branded as a convicted
felon and a racketeer by the government, but also portrayed as a person associated with the
Mafia.’”)(quoting United States v. Ivic, 700 F.2d 51, 65 (3d Cir. 2002)).
244
See, e.g. App. to Opening Br. at A2607 (“Delaware’s Auditor of Accounts, the public official
designed to ensure that others follow the State’s fiscal rules, was instead[] the one breaking those
rules.”); A4991 (“McGuiness knew just how to play the system, and she did.”).

64
intended to obtain a personal benefit in connection with the charged misconduct.245

In arguing that McGuiness received such a benefit, the State relied on the evidence

collectively supporting Counts I and III. Specifically, the State argued that

McGuiness received a “personal benefit” by using social media campaigns,

giveaways, and events directed by Daughter and MCG to personally promote herself

and advance her political career.246 Based on this record, we cannot conclude that

the jury would have found that the State established a personal benefit if it only

considered the evidence supporting Count I. Accordingly, although the second

factor weighs against finding prejudice, the remaining factors support such a finding.

Having concluded that both parts of the Wright spillover test are satisfied, we

hold that there was prejudicial spillover between Counts III and IV, and we therefore

reverse McGuiness’s conviction for Count IV and remand that count to the Superior

Court for a new trial on that charge.

E. McGuiness’s multiplicity argument
McGuiness next argues that Counts I and IV were unconstitutionally

multiplicitous and her convictions therefore should be reversed.247 The “multiplicity

doctrine” arises from the constitutional prohibition against double jeopardy and

245
Id. at A1082 (Jury Instructions).
246
Id. at A4992–93, A5067–86 (Trial Tr.).
247
Although we have reversed McGuiness’s conviction for Count IV, this issue is not moot because
the State may seek to retry McGuiness on that count, which it could not do if we conclude that
Counts I and IV are multiplicitous.

65
prohibits the State from “dividing one crime into multiple counts by splitting it into

a series of temporal or spatial units.”248 We review claims of multiplicity de novo.249

The Double Jeopardy Clauses in the United States and Delaware Constitutions

protect a person against (1) successive prosecutions; (2) multiple charges under

separate statutes, and (3) multiple charges under the same statute for the same act.250

Here, McGuiness contends that the second protection was violated. This argument

requires us to apply the United States Supreme Court’s Blockburger test.

In Blockburger v. U.S., the Supreme Court held that “where [an] act . . .

constitutes a violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is whether each [statutory]

provision requires proof of a fact which the other does not.”251 As we recently

explained in White v. State,

Where the charges derive from two different statutes “the question is
whether, both sections being violated by the same act, the accused
committed two offenses or only one” for which the inquiry is “whether
each provision requires proof of a fact which the other does not.” This
is a principle of statutory construction that derives from the underlying
assumption that the legislature does not intend to punish the same
offense under two different statutes. However, that rule of construction
“gives way in the face of clear legislative intent to the contrary.” This
test is codified in Delaware statute at 11 Del. C. § 206, and is satisfied

248
White v. State, 243 A.3d 381, 396 (Del. 2020).
249
Mills v. State, 201 A.3d 1163, 1169 (Del. 2019).
250
North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Nance v. State, 903 A.2d 283, 286 (Del.
2006).
251
Blockburger v. United States, 284 U.S. 299, 304 (1932).

66
 where an inquiry into the statutes demonstrates “each requires proof of
at least one element that is not required to prove the others.”252
McGuiness rests her argument that Counts I and IV violated the multiplicity

doctrine on the jury instructions in this case. Specifically, she relies on the Superior

Court’s instruction to the jury that, to find McGuiness guilty of Official Misconduct

for Count IV, it must unanimously find that she engaged in the conduct forming the

basis for Counts I or III.253 McGuiness contends that because a conviction of Count

IV required proof of either Count I or Count III, plus proof that McGuiness “intended

to obtain a personal benefit,” Counts I and III were included in Count IV and neither

Count I nor Count III “required proof of a fact” that Count IV did not.254

This argument misapplies the multiplicity doctrine because it relies on the jury

instructions rather than the statutes themselves. As White and our other cases

demonstrate, application of this part of the multiplicity doctrine is “a question of

statutory construction,”255 and that statutory inquiry does not support McGuiness’s

position. Count I charged McGuiness with Conflict of Interest under 29 Del. C. §

5805. Section 5805 required the State to prove McGuiness: (i) was a State employee,

officer, or honorary official; (ii) participated on the State’s behalf in the review or

252
White, 243 A.3d at 397–98 (internal citations omitted).
253
App. to Opening Br. at A1082–83 (Jury Instructions).
254
Opening Br. at 48 (quoting White, 243 A.3d at 397).
255
White, 243 A.3d at n.67. See also Missouri v. Hunter, 459 U.S. 359, 368–69 (1983); Nance,
903 A.2d at 286; Poteat v. State, 840 A.2d 599, 603–04 (Del. 2003).

67
disposition of a matter pending before the State in which she had a personal or

private interest; and (iii) the personal or private interest was one that tended to impair

her independent judgment in the performance of her duties, meaning that any action

or inaction with respect to the matter would cause a financial benefit or detriment to

accrue to McGuiness or her close relative to a greater extent than that benefit or

detriment would accrue to others in the same class or group of persons.256

Count IV charged McGuiness with Official Misconduct under 11 Del. C. §

1211, which provides:

(a) A public servant is guilty of official misconduct when, intending to
obtain a personal benefit or to cause harm to another person, the public
servant knowingly does any of the following:

(1) Commits an act constituting an unauthorized exercise of official
functions, knowing that the act is unauthorized.

* * *

(3) Performs official functions in a way intended to benefit the public
servant’s own property or financial interests under circumstances in
which the public servant’s actions would not have been reasonably
justified in consideration of the factors which ought to have been taken
into account in performing official functions.
A comparison of these statutes shows that Conflict of Interest contains an

element absent from Official Misconduct, namely, whether the matter at issue would

cause an inequivalent benefit or detriment to accrue to McGuiness or a close relative.

256
29 Del. C. § 5805(a). The recitation of these statutory elements contains only the elements
relating to the specific charge against McGuiness. The statute contains alternative elements that
are not relevant in this case.

68
Likewise, Official Misconduct contains a unique element, specifically, whether

McGuiness intended to obtain a personal benefit through performance of an official

function. Although McGuiness seems to urge us to find multiplicity because the

State alleged that the same act violated both statutes, that is not the inquiry. The only

question before us is “whether the statutory elements of one offense necessarily

satisfy the other, not whether, in a specific case, a single act completed both

offenses.”257 Because each statute at issue requires “proof of facts not necessary to

complete the other,” they can “support separate convictions and punishments

without offending the Double Jeopardy Clauses.”258

F. The trial court’s comment regarding Robinson’s testimony

McGuiness next contends that the trial court violated the Delaware

Constitution by commenting on Robinson’s testimony. Article IV, Section 19 of the

Delaware Constitution prohibits judges in jury trials from commenting on the weight

or credibility of the evidence.259 Because this is a constitutional claim, we review

the trial court’s comments de novo.260

This appeal point arises from questions McGuiness’s counsel posed to

Robinson when he was re-called to the witness stand during the defense’s case.

257
White, 243 A.3d at 399 (citing Blockburger, 284 U.S. at 304).
258
White, 243 A.3d at 399 (emphasis omitted).
259
Wright v. State, 405 A.2d 685, 689 (Del. 1979).
260
Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010).

69
Counsel questioned Robinson about calls he made to OAOA employees in May and

June 2021 and whether he told those employees that he was contacting people

“throughout state government” regarding casual-seasonal employment during the

pandemic.261 Robinson conceded that these statements were inaccurate in the sense

that he only contacted OAOA employees, but he refused to agree with McGuiness’s

counsel that his statements were “false.”262 In sustaining the State’s objection that

counsel’s questions were “asked and answered,” the trial court remarked in the jury’s

presence:

THE COURT: If you want to pursue this, we all know what it is. It’s
an investigative technique used by the officer. You want to ask him
that, that’s fine. But to imply that because this is false, he is lying.
That’s simply unfair, Mr. Wood. So you can ask him about investigative
techniques if you like. But to imply otherwise is not acceptable.263

The trial court then instructed McGuiness’s counsel to “Move on.”264

The State argues that the court was not commenting on the evidence but only

exercising its discretion to control the mode and order of witness interrogation.265

But the rules of evidence do not diminish constitutional principles, and the Delaware

Constitution’s prohibition against judges commenting on evidence extends to any

261
App. to Opening Br. at A4889–93 (Trial Tr.).
262
Id. at A4890–92 (Trial Tr.).
263
Id. at A4892 (Trial Tr.).
264
Id. at A4893 (Trial Tr.).
265
D.R.E. 611.

70
comment made by the judge that directly or indirectly conveys the court’s estimation

of the truth, falsity, or weight of a witness’s testimony.266 In commenting on

Robinson’s testimony and counsel’s characterizations of it, the trial court at least

indirectly conveyed its view regarding the truth and weight of Robinson’s testimony.

If the trial court believed McGuiness’s counsel was badgering the witness by unfairly

characterizing his investigative technique, the judge should have raised that concern

outside the jury’s presence.

We conclude, however, that this single comment was harmless error. When

an error relates to a constitutional right, we must determine if it was harmless beyond

a reasonable doubt.267 In applying that test, we weigh the “significance of the error

against the strength of the untainted evidence of guilt to determine whether the error

may have affected the judgment.”268 Here, the testimony at issue related to a minor

point regarding information provided to OAOA employees during investigatory

calls. McGuiness was permitted to present evidence and thoroughly cross-examine

the State’s witnesses regarding the DOJ’s good faith and accuracy in conducting its

investigation. The trial court also instructed the jury that they were the “sole judges

of the credibility of each witness,” they should not view any of the trial judge’s

266
Randy J. Holland, The Delaware Constitution: A Reference Guide 149–51 (2002).
267
Williams v. State, 141 A.3d 1019, 1035 (Del. 2016).
268
Id.

71
evidentiary rulings as a sign of favoritism toward one side, and nothing the judge

said during the course of the trial should be viewed as expressing an opinion about

the case’s outcome.269 Given that record, we are confident that the trial court’s

isolated comment about Robinson’s testimony was not significant to the jury’s

judgment.270

G. McGuiness’s request for appointment of private counsel at State expense

Finally, McGuiness argues that the trial court misinterpreted 10 Del. C. § 3925

and thereby erred in denying her request for the State to pay the costs for private

counsel.271 It is undisputed that McGuiness chose to forgo seeking representation

from ODS or OCC. She asserts that because of her “distrust of other state agencies

due to the nature of her case” she was “forced [] to hire her own private counsel for

trial.”272 McGuiness now asks this Court to “vacate the trial court’s October 28,

2021[] Order and order a hearing on remand to determine the extent of McGuiness’s

expenditures in hiring private counsel and order reimbursement by the State for those

expenses.”273

269
App. to Opening Br. at A1092, A1097, A1100 (Jury Instructions).
270
See Wright, 405 A.2d at 690 (noting that the comments and remarks of the trial judge, standing
alone, may not have constituted error).
271
Opening Br. at 53.
272
Id. at 58.
273
Id.

72
 This Court reviews issues of statutory construction de novo.274 But, when a

statute gives the trial court discretion, this Court reviews the application of that

discretion to determine whether the court exceeded the bounds of reason in light of

the circumstances, or so ignored recognized rules of law or practice [] as to produce

injustice.275

Section 3925 gives the trial court discretion to appoint private counsel in

certain circumstances. It provides:

Any public officer or employee, in a criminal or civil action against the
person arising from state employment, shall be entitled to petition the
court for a court-appointed attorney to represent the person’s interests
in the matter. If the judge, after consideration of the petition,
examination of the petitioner and receipt of such further evidence as the
judge may require, determines that the petition has merit, the judge shall
appoint an attorney to represent the interests of such public officer or
employee. The court-appointed attorney shall represent such person at
all stages, trial and appellate, until the final determination of the matter,
unless the attorney is earlier released by such person or by the court.
The court may first appoint an attorney from the Department of
Justice. If the court determines that the Department is unable to
represent such public officer or employee, the court may appoint an
attorney from the Office of Defense Services in criminal actions

274
State v. Barnes, 116 A.3d 883, 888 (Del. 2015) (“We review issues of statutory construction de
novo.”); Zhurbin v. State, 104 A.3d 108, 110 (Del. 2014) (“[W]e review legal rulings, including
the interpretation of statutes, de novo.”); Wilson v. Sico, 713 A.2d 923, 924 (Del. 1998) (explaining
that when a claim on appeal involves a trial court’s statutory interpretation, it is reviewed de novo
to determine if the trial court erred as a matter of law in formulating or applying legal precepts).
275
See Giuricich v. Emtrol Corp., 449 A.2d 232, 240 (Del. 1982) (applying abuse of discretion
standard); Pitts v. White, 109 A.2d 786, 788 (Del. 1954) (explaining the abuse of discretion
standard in the context of application of a statute by a trial judge).

73
 only, and in civil actions may appoint an attorney licensed in this State.
This section shall also apply to all federal courts within this State.276
Section 3925 states that the trial court “may” appoint an attorney from ODS

if the DOJ is unable to serve as counsel. Although the appointment of counsel from

ODS is discretionary, it does not follow that the trial court may overlook the statute’s

clear legislative mandate or apply an incorrect legal standard. To do so would be to

abuse its discretion.277

Here, McGuiness has not demonstrated that the trial court incorrectly applied

the statute. McGuiness asserts that the trial court “concluded that . . . [Section] 3925

barred appointment of private counsel at public expense.”278 This was not the trial

court’s holding. The trial court agreed with McGuiness “that the DOJ is unable to

represent [her],” but the court found that “ODS is able to represent her.”279 The trial

court therefore declined to appoint private counsel. McGuiness chose to forgo ODS

representation in favor of proceeding with private counsel. Although she vaguely

cites on appeal a generalized distrust of State agencies, she did not articulate to the

trial court any reason why ODS or an OCC conflict attorney could not represent her.

276
10 Del. C. § 3925 (emphasis added). As the trial court correctly explained, the statute provides
a simple process whereby “[a] public officer charged with conduct arising from her State
employment is entitled to a defense provided by the [DOJ]. If the DOJ is unable to represent the
public officer, the [ODS] is the public officer's court-appointed alternative.” McGuiness, 2021 WL
5013826, at *2 (Del. Super. Oct. 28, 2021).
277
Giuricich, 449 A.2d at 240 (applying abuse of discretion standard).
278
Opening Br. at 55.
279
McGuiness, 2021 WL 5013826, at *2 (Del. Super. Oct. 28, 2021).

74
As such, we hold that it was not an abuse of discretion for the court to deny

McGuiness’s petition for appointment of private counsel at State expense.

CONCLUSION

For the foregoing reasons, we AFFIRM McGuiness’s conviction as to Count

I, REVERSE her conviction as to Count IV, and REMAND this matter to the

Superior Court for further proceedings consistent with this opinion. Jurisdiction is

not retained.

75
SEITZ, Chief Justice, concurring in part and dissenting in part:

I concur in the persuasive opinion of my colleagues in the Majority on all but

one issue – that McGuiness’s conviction for Count IV should be reversed and a new

trial ordered because of “prejudicial spillover.” According to the Majority, evidence

relevant to Count III prejudicially spilled over into McGuiness’s conviction for

Count IV after the Superior Court dismissed Count III after trial. I disagree for the

following reasons.

First, McGuiness did not make the Count III/Count IV “prejudicial spillover”

argument before the Superior Court. The Superior Court did not plainly err when it

dismissed Count III and found that evidence relevant to Count III could support a

conviction under Count IV.

Second, the Majority relies on United States v. Wright, where the United

States Court of Appeals for the Third Circuit employed a “prejudicial spillover”

test. To find prejudicial spillover under Wright, evidence relevant to Count III could

not be used to support a conviction under Count IV. The Superior Court found to

the contrary. We should defer to its assessment.

And finally, there was no prejudice to McGuiness from dismissing Count III

after trial. I respectfully dissent.

1
 I.

Appellate review starts by asking two questions – do we have jurisdiction, and

if so, what is our standard of review? In this case, McGuiness filed a timely appeal

and we have jurisdiction to hear criminal appeals from the Superior Court.1 For the

second question, we give great deference to a jury’s factual findings, we review the

trial court’s discretionary rulings to decide whether it exceeded its discretion, and

we review its legal determinations de novo.2 But under Supreme Court Rule 8,

unless the interests of justice require otherwise, the appellant must first fairly raise

the issue on appeal in the trial court. If the appellate issue has not been fairly raised

below, the argument is forfeited, and we usually review for plain error.3

Plain error occurs only when the error is “so clearly prejudicial to substantial

rights as to jeopardize the fairness and integrity of the trial process.” 4 It is “limited

to material defects which are apparent on the face of the record; which are basic,

1
Del. Const. art. IV, § 4(1)(b).
2
Young v. Frase, 702 A.2d 1234, 1236 (Del. 1997) (“Under Delaware law, enormous deference is
given to jury verdicts,”); Zimmerman v. State, 628 A.2d 62, 65 (Del. 1993) (“Under an abuse of
discretion standard, this Court will disturb a discretionary ruling of the trial court only when the
ruling is based upon unreasonable or capricious grounds.”); Nat’l Ass’n v. Sun Life Assurance Co.
of Canada, 294 A.3d 1062, 1071 (Del. 2023) (“This Court reviews questions of law de novo.”).
3
Baker v. State, 906 A.2d 139, 150 (Del. 2006) (“Where defense counsel fails to raise a timely and
pertinent objection to alleged prosecutorial misconduct at trial and the trial judge does not
intervene sua sponte, we review only for plain error.”).
4
Smith v. Delaware State Univ., 47 A.3d 472, 479 (Del. 2012).
2
serious and fundamental in their character, and which clearly deprive an accused of

a substantial right, or which clearly show manifest injustice.”5

Plain error review is a high bar for important reasons. Trial court review gives

the parties “a fair chance to address arguments at the trial court.”6 It is also “prudent

for the development of the law that appellate courts have the benefits that come with

a full record and input from learned trial judges.”7 In other words, “fair presentation

facilitates the process by which the application of rights in an individual case affects

others in other cases and society in general.”8 Here, McGuiness did not fairly raise

the Count III/Count IV prejudicial spillover issue in the Superior Court.9 In a

criminal appeal where the appellant did not raise the issue below, the issue is

forfeited and we review for plain error or for waiver.10

5
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
6
Shawe v. Elting, 157 A.3d 152, 169 (Del. 2017).
7
Id.
8
Id.
9
Under Supreme Court Rule 14(b)(vi) A (1), the appellant must make a “clear and exact” reference
to the appendix pages where “a party preserved each question in the trial court.” McGuiness does
not cite to where the Count III/IV spillover argument was raised below. McGuiness cited A301-
A371, which was McGuiness’s Motion to Dismiss Count Three (which does not speak to spillover
or Count IV) and Opening Brief at 43 (“McGuiness moved pursuant to Rule 29(a) for judgment
of acquittal on Count Three based on the same legal argument raised in her motion to dismiss”).
It would have been preferable if McGuiness acknowledged that the argument was being raised for
the first time on appeal or point us to the exact place where the Count III/IV spillover issue was
raised and considered by the Superior Court.
10
See, e.g., Shawe, 157 A.3d at 168; Czech v. State, 945 A.2d 1088, 1097 (Del. 2008) (“Failure to
raise a contemporaneous objection to allegedly prejudicial testimony constitutes a waiver of that
issue on appeal, unless the error is plain. Counsel’s failure to object to the admission of improper
evidence does not bar plain error review unless the party consciously refrains from objecting as a
tactical matter, in which case the issue is waived and not reviewable.”); Crawley v. State, 929 A.2d
783 (Del. 2007) (“The record shows that defense counsel made a tactical decision to use the drug
3
 The Majority skips over Supreme Court Rule 8 and applies de novo review

because they believe it would be unfair to apply plain error review in this instance.

According to the Majority, McGuiness could not predict whether the Superior Court

would accept her post-trial motion to dismiss Count III, and she should not have to

argue the consequences that flow from a favorable result. But McGuiness sought to

dismiss Count III before, during, and after trial and could have argued the

consequences that flowed from dismissal. And she was aware of the Wright

spillover argument. In her post-trial motion, McGuiness raised a prejudicial

spillover argument under Wright, but based on evidence related to Count V, not

Count III.11 McGuiness’s Count V Wright arguments in the Superior Court were

similar to those in this appeal.

Finally, to employ de novo review, the Majority relies on United States v.

Fattah, where the Third Circuit applied “plenary review over a district court’s denial

of a claim of prejudicial spillover[.]”12 As the italicized words show, in Fattah the

related evidence in a way he believed to be to his client’s advantage; that tactical decision
constitutes a waiver and bars plain error review.”).
11
A1508-A1517 (McGuiness’s post-trial motion); A1508 (“[T]estimony was therefore wholly
irrelevant to the charged offenses as a matter of law, and therefore unfairly prejudicial”); A1509
(“The evidence was clearly irrelevant to the charged conduct, and thus constituted impermissible
uncharged misconduct evidence.”); A1514 (“[T]he admission of this uncharged misconduct
evidence tainted the jury’s consideration of Counts One, Three, and Four. Under the doctrine of
“prejudicial spillover,” evidence erroneously admitted in support of one charge can have a
deleterious effect on a jury’s consideration of other charges.” United States v. Fattah, 914 F.3d
112, 186 (3d Cir. 2019). Prejudicial spillover is a widely recognized basis for a new trial. United
States v. Wright, 665 F.3d 560, 575 (3d Cir. 2012), as amended (Feb. 7, 2012) (vacating judgment
of conviction and remanding for new trial).”).
12
United States v. Fattah, 914 F.3d 112, 186 (3d Cir. 2019) (emphasis added).
4
Third Circuit reviewed the trial court’s prejudicial spillover decision, which is not

the case here. And regardless, a closer look at Fattah shows that de novo review is

the incorrect standard of review when a prejudicial spillover argument is not raised

in the trial court.

To decide the standard of review in Fattah, the Third Circuit relied on its

decision in United States v. Lee.13 In Lee, the appeals court confronted a situation

like here where “the issue of taint was never raised before the District Court” because

the jury acquitted the defendant of the charge.14 After acquittal on one charge, the

defendant argued on appeal that evidence relevant to the acquitted charge tainted his

conviction on another charge. Like here, the defendant could not have known until

after trial that he would be acquitted of the charge.

Addressing the standard of review as a matter of first impression, the Third

Circuit set clear standards depending on whether the issue was first raised in the

district court. If the appellant raised prejudicial spillover in the district court, the

Lee court looked to “how we address challenges to the sufficiency of evidence as a

guide.”15 In that situation, the standard of review is plenary and the court decides

whether there was substantial evidence that, when viewed in the light most favorable

13
United States v. Lee, 612 F.3d 170, 178 (3d Cir. 2010).
14
Id.
15
Id.
5
to the government, would allow a rational trier of fact to convict.16 Even with a

plenary standard of review, the court noted that the standard is still “highly

deferential.”17 But when, like here, the issue was not raised below, the court held

that it reviews for plain error.18 Thus, like Lee, where the prejudicial spillover

argument did not arise until after the jury verdict, the standard of review here is plain

error.

II.

McGuiness argues that, during trial, the jury was exposed to supposedly

inadmissible and inflammatory evidence relevant to Count III that “spilled over” and

prejudiced the jury’s consideration of Count IV. As a matter of first impression, the

Majority adopts a test from Wright v. United States to assess the prejudicial spillover

issue.

In Wright, the government charged the defendants with honest services fraud,

“traditional” mail fraud, and conspiracy. The judge instructed the jury that the

defendants could be convicted for honest services fraud under either a “conflict of

interest” theory or a “bribery” theory.19 On appeal from the convictions, the Third

Circuit ruled that an honest services fraud jury instruction that included the conflict-

16
Id. (quoting United States v. Bornman, 559 F.2d 150, 152 (3d Circ. 2009)).
17
Id.
18
Id. at 179.
19
Wright, 665 F.3d, at 567.
6
of-interest theory was flawed and not harmless error based on an intervening

Supreme Court decision that excluded conflicts-of-interest from the definition of

honest services fraud. Thus, the jury could have mistakenly inferred an intent from

the conflict-of-interest evidence that would not support a bribery theory.

As a threshold matter, the Wright court found that evidence related to conflict

of interest would have been inadmissible to support an honest services fraud

conviction. After making this necessary determination, the court also found that the

“trial environment . . . emphasized the conflict-of-interest theory” and the jury

instructions contained “about eight times more words to the conflict-of-interest

theory than they did to the bribery theory.”20 Also, prejudice existed with “scant”

evidence relevant solely to the preserved fraud count and “most of [the] case’s four-

volume appendix” focused on evidence “essentially irrelevant to the” valid fraud

theory.21

Applying the Wright prejudicial spillover test here, the Superior Court did not

plainly err by failing to detect a “material defect” which was “apparent on the face

of the record.” As required by Wright, the threshold question is whether the State

introduced evidence that would have been inadmissible if the trial was limited to the

remaining valid count.22 The Superior Court found that the Count III evidence

20
Id. at 572.
21
Id. at 575-77.
22
Id. at 575.
7
would be admissible as to Count IV.23 We should defer to that finding and end the

inquiry here.24

But the Majority continues on, stating that “even if we accepted the theoretical

basis for the State’s position that Count III evidence would have been independently

admissible to prove Official Misconduct for Count IV, that is not the theory that the

State presented at trial.”25 The Majority believes it “unlikely that the trial court

would have admitted much of the payment-structuring evidence in the absence of

Count III,” relying on the fact that the State “seemingly spent 90 percent of this trial

on Count III” and “effectively treated Count III as a predicate offense for Count

IV.”26 But this has no bearing on the admissibility of evidence.

Under the first step of the Wright analysis, the question is whether the

evidence would be admissible in a hypothetical trial that discarded Count III.27 By

mixing a trial court’s admissibility determination at a hypothetical trial with the

State’s conduct at the actual trial, the Majority misapplies the Wright test and fails

23
State v. McGuiness, 2022 WL 3971195, at *6 n.51 (Del. Super. Ct. Aug. 30, 2022) (“While this
Court has found the jury’s verdict as to Count Three was not supported by the evidence, the facts
surrounding the interaction between MyCG, Christie Gross and the Defendant can still be
considered and are relevant to whether the facts support the Official Misconduct offense found in
Count Four. Count Three is a technical one relating specifically to the procurement process while
Count Four is broader in scope and relates to the relationship between the Defendant, Daughter,
and MyCG.”).
24
Id.
25
Majority Opinion (“Op.”) at 59, 60.
26
Id. at 59, 58.
27
Wright, 665 F.3d, at 575.
8
to defer to the Superior Court’s express finding. And it is hard to reconcile with the

Majority’s acknowledgment that Wright “counsels against concluding that evidence

would have been inadmissible when it is a close question.”28 The Superior Court

did not err in concluding Count III was relevant to Count IV and “can still be

considered” to “support the Official Misconduct offense[.]”29

Finally, even if the Court reached the prejudice prong of the Wright test, there

was no prejudice here. As explained above, the State would have been allowed to

introduce the same evidence relevant to Count III to convict under Count IV, even

if the court dismissed Count III before trial. The Majority also agrees that sufficient

distinct evidence could support McGuiness’s conviction on Count IV.30 In other

words, “[e]ven if evidence related to Structuring had been excluded entirely, the jury

received sufficient evidence to convict McGuiness of Conflict of Interest, which also

supported the Official Misconduct charge.”31 Also, unlike Wright, each count

charged a separate crime.32 Here, the Superior Court instructed the jury to consider

each count independently. The jury reached a discriminating verdict. We presume

28
Majority Op. at 58.
29
State v. McGuiness, 2022 WL 3971195, at *6 n.51 (Del. Super. Ct. Aug. 30, 2022).
30
Majority Op. at 63.
31
Id.
32
Wright, 665 F.3d, at 576, 577.
9
that juries follow their instructions.33 The jury was not confused by the relationship

between the counts.

Under Wright, the court must also consider the language employed by the

State at trial. But the analysis is incomplete without considering the language

employed by both parties throughout the proceeding. Given McGuiness’s counsel’s

highly charged language,34 McGuiness was not damaged “in ways that would not

have occurred” but for Count III.35

The Superior Court did not plainly err when it found that the evidence relevant

to Count III would support a conviction under Count IV. I respectfully dissent from

the reversal of McGuiness’s conviction under Count IV.

33
United States v. Fattah, 914 F.3d 112, 189 (3d Cir. 2019), Guy v. State, 913 A.2d 558, 566 (Del.
2006). See generally Phillips v. State, 154 A.3d 1146, 1154 (Del. 2017) and Revel v. State, 956
A.2d 23, 27 (Del. 2008).
34
A5008 (“[W]e tell you with reservation and maybe even a tinge of sadness that when the State
tells you she’s guilty, you simply cannot trust what they say because the evidence tells you
something else.”); A5012 (“[the State’s] investigation was incompetent, incomplete, and biased.”);
A5006-A5007 (“the State’s investigation and prosecution is not based on the truth, the whole truth,
and nothing but the truth.”); A5007 (“Folks, the evidence shows that the State’s investigation in
this case was incomplete, incompetent, and biased from the very beginning.”); A5011-A5012
(“You simply can’t trust the State.”); A5032 (“If you’re going to trust somebody in this
investigation, you’re going to trust a woman like Amy Gulli who doesn’t live in Delaware and
doesn’t work for the auditor’s office who you saw? Or are you going to trust the State, who wraps
itself in Thomas Van Horn who they know is a liar who perjured himself in front of a grand jury?”);
A5049 (“This investigation was incompetent, incomplete, and biased from the very beginning.
This was not an investigation designed to ferret out the truth. Early on the State decided Kathy
McGuiness was guilty. They made a conscious choice to ignore evidence that might show she
wasn’t guilty, and when they ran into that evidence anyway, they made a conscious choice to ignore
it here in this trial.”).
35
The Majority cites United States v. Cross, 308 F.3d 308, 316 (3d Cr. 2002) but in Cross, like
Pelullo, the defendant was estopped from contesting the characterizations at issue. That is different
from here, where McGuiness used similar inflammatory tactics throughout a contentious trial.
10