IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) ID. No. 1605012921A ) DIAMONTE TAYLOR, ) ) Defendant. )

MEMORANDUM OPINION
Date Submitted: March 4, 2022

Date Decided: June 30 , 2022 Upon Defendant’s Motion to Dismiss DENIED

.

Benjamin S. Gifford IV , Esq. of The Law Office of Benjamin S. Gifford IV and John A. Barber, Esq. of The Law Office of John A. Barber, Wilmington, DE. Attorneys for Defendant

. Matthew Frawley and Mark Denney, Deputy Attorneys General, Wilmington, DE. Attorneys for State of D elaware

.

MEDINILLA, J.2 INTRODUCTION
After a ten

- day jury trial in March of 2018, 1 a jury returned guilty verdicts against Defendant Diamonte Taylor (“Defendant”) for Murder in the First Degree, Gang Participation, two counts of Reckless Endangerment, Possession of a Firearm during the Commission of a Felony, two counts of Aggravated Menacing, and Assault in the First Degree. 2 On direct appeal, 3 t he Supreme Court reversed Defendant’s conviction and remanded the case for a new trial

. 4 Defendant now moves to dismiss his indictment claiming a new trial violates the Double Jeopardy Clause of the Delaware Constitution 5 due to alleged prosecutorial misconduct in a pretrial hearing. 6 H aving considered Defendant’s Motion to Dismiss , the State’s Response in Opposition, oral arguments, and the record in this case, Defendant’s Motion is DENIED . FACTUAL AND PROCEDURAL HISTORY 7 This case stems from various charges related to a gang feud in the City of Wilmington between a Wilmington street gang called Shoot to Kill (“STK”) and a rival gang Only My Brothers (“OMB”) . What began following the murder of a n

1 See Jury Trial Held Before Judge Medinilla, D.I. 77. 2 See Verdict Sheet, D.I. 78. 3 See Letter from Supreme Court RE: A Notice of Appeal was Filed, D.I. 106. 4 See generally Taylor v. State , 260 A.3d 602 (Del. 2021). 5 See Del. Const. Art. I, § 8. 6 Defendant’s Motion to Dismiss , D.I. 136, at 1 [hereinafter Motion to Dismiss]. 7 The recitation of facts is from the Supreme Court of Delaware decision in Taylor v. State , 260 A.3d 602 (Del. 2021).3 STK affiliate in January of 2015 culminated in the murder of fourteen

- year - old Brandon Wingo , shot in the face when walking home from school on May 19, 2016. Defendant was indicted for charges of Murder in the First Degree , as well as charges of Gang Part icipation, Conspiracy in the First Degree, and multiple other gang related violen t felonies to include Reckless Endangerment, Possession of a Firearm during the Commission of a Felony, two counts of Aggravated Menacing, and Assault in the First Degree

. 8 On January 22, 2018, Defendant filed a Motion to Suppress regarding evidence seized from his cell phone pursu ant to a search warrant. 9 He raised two separate arguments as to why evidence downloaded from his cell phone should have been excluded. First, t hat the search warrant failed to establish a specific nexus between any crime and the device to be searched, 10 and second that the search warrant was inadequately particular and thus constituted an impermissible general

warrant. 11
This Court held a suppression hearing on F ebruary 16, 2018

. Defendant argued that the use of female pronouns throughout the search w arrant

— and its averments in support

— clearly demonstrated that the targeted cell phone was that of

8 See Indictment, True Bill Filed No. 55 , D.I. 1. 9 See Motion to Suppress, D.I. 53. 10 See Exhibit A to Motion to Dismiss, ¶¶ 20

- 34. 11 See id. ¶¶ 35

- 47.4 his girlfriend. Thus , the search warrant did not sufficiently establish probable cause to search his phone. At the suppression hearing, the prosecutor re spo nded that any incorrect pronouns were merely a scrivener’s error , not substantive to warrant suppression. As to the first argument, t h is Court accepted the State’s representations and , as to the second, it based its decision on the law applicable at that time ; t his
Court denied suppression

. 12
After a two

- week trial in March 2018, 13 the jury returned its guilty verdicts. 14 On August 2, 2019, Defendant filed a M otion for New Trial , 15 wh ich this Court denied on D ecember 2, 2019. 16 On January 31, 2020, Defendant was sentenced to a mandatory life sentence for Murder First Degree and an additional eleven years incarceration

. 17
On Defendant ’s direct appeal , 18 t he Supreme Court reversed Defendant’s convictions and remanded the case for a new trial on the basis that the search warrant used to search Defendant’s cell phone constituted an impermissible general

warrant

. 19

12 See Motion to Suppress Search Warrant Denied, D.I. 59. 13 See Jury Trial Held Before Judge Medinilla, D.I. 77. 14 See Verdict Sheet, D.I. 78. 15 See Motion for New Trial, D.I. 98. 16 See Order for a New Trial is Denied, D.I. 104. 17 See Sentence: ASOP Order Signed and Filed, D.I. 105. 18 See Letter from Supreme Court RE: A Notice of Appeal was Filed, D.I. 106. 19 See generally Taylor , 260 A.3d 602

.5 During the pendency of the direct appeal, the defense discov ered a search warrant for the cell phone of Defendant’s girlfriend, Latasha Pierce (“Pierce”) , of which a redacted copy had been provided by the State in its initial discovery
response. 20 The language of a particular paragraph in th at search warrant is id entical to a paragraph in the search warrant that targeted Defendant’s devices. 21 U pon a closer review of the Affidavit and Application for Defendant’s devices, Pierce’s name on the page is obstructed by the Justice of the Peace Court seal stamped on the center of the page. 22 Based on this discovery, o n November 5, 2021, Defendant filed this Motion to Dismiss ( the “Motion”) , alleging the State misrepresented information to the Court at the suppression hearing

. The State filed its response on November 9, 202 1

. The day before oral arguments were scheduled to be heard, defense counsel noticed
that he mistakenly attached the in correct search warrant to the Motion and substituted the correct warrant in a subsequent letter. 23 Oral arguments were h eard

on March 4, 2022. This matter is now ripe for decision.

20 See Exhibit D to Motion to Dismiss. 21 See id. ¶ 22; Exhibit B to Motion to Dismiss, at Exhibit A, ¶ 23. 22 Motion to Dismiss, ¶ 11. 23 See Letter from Defense Counsel, D.I. 148.6 CONTENTIONS
Defendant claims a retrial would constitute double jeopardy on the basis of prosecutorial misconduct

. Essentially that the prosecutor made an intentional or reckless misrepresentation to the Court that the use of female pronouns in Defendant’s warrant w as merely a scrivener’s error when the prosecu tor knew or should have known that the language was copied from another warrant

. 24 He further posits he has satisfied the Hughes v. State 25 test for prosecutorial misconduct through his Supreme Court r e mand

. 26 Alternatively, he argues he has also satisfied the
Hunter v. State 27 test by extension through State v. Bobby Taylor

. 28
The State ’s response is brief. It succinctly contends the scrivener’s error was “self

- evident from the warrant and the Court agreed.” 29 It further asks this Court to reject the Motion as meritless. The State elects not to respond to the constitutional arguments raised , nor does it address the claims of prosecutorial misconduct.

24 Defendant argues that the detective who authored a search warrant targeting Pierce’s cell phone drafted a paragraph designed to establish a nexus between her device and evidence of an alleged crime . The detective then used the language aimed at Pierce’s device and “recycled” it four days later when she applied for a war rant to search Defendant’s cell phone. See Defendant’s Reply to State’s Letter Responding to His Motion to Dismiss, D.I. 141, ¶¶ 2

- 3 [hereinafter Defendant’s Reply]. 25 437 A.2d 559, 571 (Del. 1981)

. 26 Motion to Dismiss, ¶¶ 72

- 73. 27 815 A.2d 730 (Del. 2002). 28 2019 WL 4647669 (Del. Super. Sept. 23, 2019). This case will be referred to as Bobby Taylor , rather than Taylor , to avoid confusion with the matter presently before this Court. 29 State’s Response to Defendant’s Motion to Dismiss, D.I. 138, at 2

.7 F inally , the State argues it was the form, not t he substance , of the warrant that led to the Supreme Court’s reversal and dismissal is therefore inappropriate. 30
DISCUSSION Both the United States and Delaware Constitutions protect the rights of ordinary citizens from double jeopardy. 31 “The underlying idea . . . is that the State . . . should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of a nxiety and insecurity . . . .” 32 Under Delaware law, Double Jeopardy provides protection against a second prosecution
for the same offense after an acquittal or a conviction , and against multiple punishments for the same offense. 33
I. Double Jeopardy Does Not Attach Defendant was tried and now after vacatur, he may be tried for that same charge again. That in itself poses no double

- jeopardy problem, because as the U.S. Supreme Court held in Ball v. United States , the Double Jeopardy Clause does not p revent a defendant from being retried for an offense if he succeeds in having his conviction vacated. [Therefore,] . . . a

30 Id. 31 See U.S. Const. Amend. V (“...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb....”); Del. Const. Art. I, § 8 ( “ [N]o person shall be for the same offense twice put in jeopardy of life or limb.”). 32 Blake v. State , 65 A.2d 557, 561 (Del. 2013) (quoting Green v. U.S. , 355 U.S. 18 4, 187 (1957) )

. 33 See 11 Del. C. §§ 206

- 210 ; Blake , 65 A.2d at 561.8 retrial following vacatur is . . . ongoing jeopardy, not successive prosecution for the same offense. 34 This should end the analy sis . B ut Defendant asks for further review of the protections and distinctions afforded under both the federal and our state

c onstitutions. Defendant conced es that under Oregon v. Kennedy 35 he has no viable claim under the U.S. Constitution. T he federal framework is clear under Kennedy that

m erely because an act before the factfinder (none here) is so unfairly prejudicial as

to necessitate a mistrial (none here), this alone does not suffice to bar retrial even when that act was undertaken wrongfully by the prosecutor. 36 Thus, Defendant acknowledges he is afforded no double jeopardy protection under the U.S. Constitution.
Defendant further acknowled ges that Delaware’s Double Jeopardy Clause is “virtually identical” to the federal D ouble J eopardy C lause and follows the same standards. 37 Thus, “it is [also] specific intent by the prosecution to cause a mistrial that the Court must find in order for that resulting mistrial to bar retrial and mandate dismissal.” 38

34 Grimes v. State , 188 A.3d 824, 826 (Del. 2018) (citing Price v. Georgia , 398 U.S. 323, 326 (1970)). 35 456 U.S. 667, 676 (1982). 36 Kennedy , 456 U.S. at 675

– 76. 37 See Hughey v. State , 522 A.2d 335, 338 n.5 (Del. 1987). 38 Bobby Taylor , 2019 WL 4647669, at * 3 (citing Sudler v. State, 611 A.2d 945, 948 (Del. 1992) (It is only “[w]here ‘the governmental conduct in question is intended to ‘goad’ the defendant9 R ecognizing no viable claim exists under Delaware’s current legal framework, Defendant proposes a novel theory and invites the Court to: (1) reject and lower Delaware’s Double Jeopardy inte nt requirement; (2) modify the procedural application of this lower standard outside the context of a trial; and (3) apply this lower standard in the absence of a mistrial.
Defendant’s solution is to look at the 2003 decision of Poteat v. State , 39 where the Delaware Supreme Court recognized the similarities in both the federal and state Double Jeopardy clauses but observed that the Court “ha[d] not been called upon to decide whether the federal and state Double Jeopardy provisions are identical in scope in all respects.” 40 He states that in the 2019 case of Parker v. State , 41 the question remain ed unanswered, 42 and open for consideration here. The law does not advance Defendant’s argument. To be clear, Poteat concerned whether , under the Double Jeopardy Clause, a charge of Aggravated Menacing was a lesser

- included offense of Robbery First Degree such that an acquittal on the lesser

- included o ffen s e prevented the State from

into moving for a mistrial...[that] a defendant [can] raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.’”) ) (quoting Kennedy , 456 U.S. a t 676). 39 Poteat v. State , 840 A.2d 599 (Del. 2003). 40 See Motion to Dismiss, ¶ 16 (quoting Poteat , 840 A.2d at 602 n.3 ). 41 201 A.3d 118 1 (Del. 2019)

. 42 Motion to Dismiss, ¶ 17 (citing Parker , 201 A.3d at 1184 n.5 (“ [Defendant] is not clear about whether his claim is based on the U.S. or Delaware Constitution

. We proceed under the assumption that he is claiming a double jeopardy violation under only the U.S. Constitution.”) ) ( citing Poteat , 840 A.2d at 602 n.3).10 retrying him for the greater offense. 43 That is not this case. This matter involves ongoing prosecution for the same offense. Defendant’s tour of the history of Delaware’s Constitution and considerations for how our constitutional protections have been broader in some instances than its federal counterpart 44 do little to persuade this Court. The recitation of when a state constitutional violation may be raised by a party under Jones v. State 45 is also not persuasive

. 46 Not only is the law well

- established , there also exists a procedural problem

. The prosecutor’s comments took place at a pre - trial proceeding. D ouble jeopardy considerations arise w h en a defendant moves for a mistrial , and these D ouble
J eopardy clauses to bar retrial apply only when the mistrial was intentionally provoked by the government or the State

. 47 Here, t here were no representations made at trial. Nor did Defendant move for a mistrial. Nor is the prosecutor alleged to have goaded a mistrial.

43 See Poteat , 840 A.2d at 601. 44 See Motion to Dismiss, ¶¶ 15

- 30. 45 745 A.2d 856 (Del 1999). 46 Defendant argues: “To properly raise a state constitutional violation, a party ‘should include a discussion and analysis of one or more of the following non

- exclusive criteria: textual language, legislative history, preexisting state law, structural diffe rences, matters of particular state interest or local concerns, state traditions, and public attitudes.’” See Motion to Dismiss, ¶ 31 (quoting Wallace v. State , 956 A.2d 630, 637

– 38 (Del. 2008)). 47 See Kennedy 456 U.S. at 676; Sullins v. State, 930 A.2d 911, 916 (Del. 2007) (observing this includes causing mistrial by intentional violations of due process that goad defendant into seeking a mistrial).11 Defendant fails to provide Delaware authority as to why this Court should consider the application of double jeo pardy in a pre - trial context in the absence of a mistrial caused by intentional s tate action

. The Court rejects the proposal that we follow Pennsylvania’s lead where c ertain c ourts have either relaxed the intentional standard or have considered prosecutor ial misconduct in the absence of a mistrial. 48
Defendant’s reliance on these cases do es little to support his argument. The unique circumstances presented in those cases are not present here and he fails to convince this Court that our Double Jeopardy standards should be lowered as presented.
II. No Basis t o Consider Prosecutorial Misconduc t Defendant next contends that the prosecutor’s actions at the suppression hearing were intentional or reckless to support a finding of prosecutorial misconduct.
He argues that this Court should find prosecutorial misconduct on the bases of prior

court r ulings and order a remedy that does not exist as a matter of law

. Ordinarily, when reviewing a claim of prosecutorial misconduct that was timely raised, the Court utilizes a harmless error standard. 49 Here, t he allegations of

48 See Motion to Dismiss, ¶¶ 15

- 35, 40

- 62; Defendant’s Reply, ¶ 15; see also Commonwe alth v. Smith , 615 A.2d 321 (Pa. 1992) (In the absence of prosecutorial misconduct to provoke the defendant into moving for a mistrial, the State was barred from a second prosecution “when the conduct of the prosecutor was intentionally undertaken to prejudice the defe ndant to the point of the denial of a fair trial.”); se e also Commonwealth v. Johnson , 231 A.3d 807, 826 (Pa. 2020) (holding the Pennsylvania Constitution provides that “prosecutorial overreaching sufficient to invoke double jeopardy protections includes m isconduct which not only deprives the defendant of his right to fair trial, but is undertaken recklessly . . . .”). 49 See, e.g. , Justice v. State , 947 A.2d 1097, 1100 (Del. 2008).12 prosecutorial misconduct were not raised at trial nor on direct appeal because the basis of this allegation stems from a discovery made by the defense team during Defendant’s pending appeal. Even if timely made, when a such a claim is raised,

t he Court mu st conduct a de novo review of the record to determine if misconduct actually occurred. 50 If so , the Court must then determine whether a substantial right of the defendant was prejudiced by the improper comments or conduct, applying the Hughes test. 51 Bu t here, Defendant argues this Court need not conduct a de novo review . Instead, he argues that the Supreme Court ’s vacatur satisfies the Hughes

test. This argument is unavailing. 52
The Supreme Court’s holding was limited to a determination that the search warrant used to search Defendant’s cell phone constituted an impermissible general

warrant

. 53 It said nothing about prosecutorial misconduct. Nor did the Court
consider whether a substantial right of the defenda nt was prejudiced by anything related to the comments or conduct of the prosecutor. Defendant fails to establish

50 Id. 51 Id. at 1101. If prosecutorial misconduct is found, Delaware Courts determine the prejudicial affect by applying the three factors established in the Hughes test: “the closeness of the case, the centrality of the issue affected by the (alleged) error, and the steps take n to mitigate the effects of the error.” Hughes , 437 A.2d at 571

. 52 Defendant argues the Supreme Court reversal essentially operated as a de facto finding to satisfy the Hughes test because the Court “[could not] conclude beyond a reasonable doubt that the jury’s verdict would have been the same without the illegally seized smartphone evidence” and further noted that “the jury convicted [him] on all charges related to the crimes where the State presented evidence from the [smart phone] extraction re port ,” finding “[t]he smartphone evidence was critical to the State’s case and Taylor’s convictions .” See Taylor , 260 A.3d at 618. 53 See generally id.13 how the Supreme Court’s decision related to the validity of a search warrant satisfies the Hughes test

. Defendant’s argument that he has established a pattern of misconduct under
Hunter is equally without merit. 54 He argues the Hunter “pattern of misconduct” is established by two events : (1) the comments of the prosecutor to this Court in Defendant’s 2018 s uppression hearing ; and (2) a subsequent cross

- examination conducted by the same prosecutor in 2019 in the case of State v. Bobby Taylor

. 55
I n Bobby Taylor , that C ourt limited its review to whether a mistrial was intentionally provoked by the State and considered only whether double jeopardy
barred retrial due to the prosecutor’s cross - examination of Defendant. Even after that C ourt granted a mistrial, it found no double jeopardy bar and denied the motion to dismiss because there was no evidence that the prosecution’s conduct was an intentional attempt to achieve a mistrial. 56 Importantly, though the Court castigated the prosecutor , it never determined the prosecutor committed prosecutorial misconduct under Hunter or Hughes

. 57

54 T he Supreme Court found that various statements made by the prosecutor during trial warranted a finding of prosecutorial misconduct after a Hughes analysis failed to find that reversal was appropriate. There, the court found “a persistent pattern of prosecutorial misconduct,” such that “the integrity of the judicial process was compromi sed,” requiring reversal. Hunter , 815 A.2d at 737

– 38. 55 2019 WL 464766 9 (Del. Super. Sept. 23, 2019). 56 See id. at *5. 57 See id.14 For the sa me reasons that the Supreme Court’s vacatur cannot satisfy the Hughes test, nor can the Bobby Taylor ruling

— decided after the 2018 suppression hearing

— establish a “pattern” of misconduct under Hunter. Even if the Court conducted a de novo review of the record , at best all that can be said is there was a mutual mistake discovered years later and both side s were operating under the assumption that the search warrant submitted for review was Defendant’s. This does not translate into a finding of misconduct against the State. The analysis ends here. No further analysis is required under Hunter or Hu ghes , a nd Defendant’s reliance on either case as presented is misplaced.
III. Remedy Has Been Afforded Lastly, even if prosecutorial misconduct had been found, the relief of a new trial available under e ither Hughes or Hunter has already been afforded here

. 58
Defendant’s insistence that he is entitled to the remedy of dismissal

— not just retrial

— is i nconsistent with Delaware law

. The Delaware Supreme Court in State v. Robinson 59 addressed the remedy of dismissal even upon a finding of “egregious” State misconduct. 60 Though the

58 The relief available under either a Hunter or Hughes analysis is limited to reversal and a new trial. See Hughes , 437 A.2d at 566

– 73 (remanding for a new trial after finding prosecutorial errors substantially affected the defendant’s right to a fair trial); Hunter , 815 A.2d at 738 (reversing the conviction following a finding of prosecutorial misconduct which compromised the judicial process); Trala v. State , 244 A.3d 989, 998

– 99 (Del. 2020) (discussing the ability to reverse under the Hughes and Hunter tests). 59 209 A.3d 25 (Del. 2019). 60 See id. at 58

.15 prosecutorial misconduct there involved a Sixth Amendment violation of defendant’s attorney

- client privilege , 61 the Supreme Court determined that
dismissa l of the indictment was inappropriate where “[a] remedy less severe than dismissal” would ensure the defendant’s “right to a fair trial [was] protected.” 62 A ny relief therefore ‘“should be tailored to the injury suffered and should not unnecessarily infri nge upon society’s competing interest in the administration of criminal justice.”’ 63 For these reasons, where t he relief of a new trial ha s been afforded , Defendant f ails to establish a legal basis to warrant dismissal. CONCLUSION Defendant’s request to meld various legal theories and methods and have this Court serve as a catalyst to create a new body of law is reminiscent of a bad experiment. The Court would need to dissect the “intent” requirement out of Delaware’s Double Jeopard y analysis and replace it with a lesser standard. Next, it would need to implant double jeopardy analyses in pre

- trial court proceedings without the necessary trial prerequisites to include mistrial or intentional goading caused by prosecutorial conduct. Then, the Court would need to transplant Defendant’s vacatur to establish intentional or reckless prosecutorial misconduct under the Hughe s test

.

61 See id

. at 54

– 55

. 62 Id. at 59. 63 Id. at 61 (quoting Bailey v. State , 521 A.2d 1069, 1084 (Del. 1987) )

.16 Alternatively, the Court would need to bolt remnants of dictum from the subsequen t decision of Bobby Taylor in order to find a pattern of intentional or reckless prosecutorial misconduct under Hunter

. These Shelleyan 64 theories, though creative, cannot survive for the reasons stated. Therefore, Defendant’s Motion to Dismiss is DENIED

. IT IS SO ORDERED . /s/ Vivian L. Medin illa Vivian L. Medinilla Judge cc: Prothonotary

64 See M ARY S HELLEY , F RANKENSTEIN ; O R , T HE M ODERN P ROMETHEUS (Lackington, Hughes, Harding, Mavor & Jones, 1st ed. 1818).