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 Delaware.

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 the 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 

Constitution5 due to alleged prosecutorial misconduct in a pretrial hearing.6

 Having 

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 HISTORY7

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 an

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 Participation, Conspiracy in the First Degree, and multiple other gangrelated violent 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 pursuant to a search warrant.9

 He raised two 

separate arguments as to why evidence downloaded from his cell phone should have 

been excluded. First, that 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 February 16, 2018. Defendant 

argued that the use of female pronouns throughout the search warrant—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 responded that any 

incorrect pronouns were merely a scrivener’s error, not substantive to warrant 

suppression. As to the first argument, this Court accepted the State’s representations 

and, as to the second, it based its decision on the law applicable at that time; this

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 Motion for New Trial,

15 which this Court 

denied on December 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 the 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 discovered 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 that search warrant is identical 

to a paragraph in the search warrant that targeted Defendant’s devices.21 Upon 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, on 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, 2021. 

The day before oral arguments were scheduled to be heard, defense counsel noticed 

that he mistakenly attached the incorrect search warrant to the Motion and 

substituted the correct warrant in a subsequent letter.23 Oral arguments were heard

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 was merely a scrivener’s error when the prosecutor knew or 

should have known that the language was copied from another warrant.

24 He further 

posits he has satisfied the Hughes v. State25 test for prosecutorial misconduct through 

his Supreme Court remand.

26 Alternatively, he argues he has also satisfied the 

Hunter v. State27 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 warrant 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

Finally, the State argues it was the form, not the 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 anxiety 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 prevent 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. 184, 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 analysis. But Defendant asks for further review of the

protections and distinctions afforded under both the federal and our state

constitutions.

Defendant concedes that under Oregon v. Kennedy35 he has no viable claim 

under the U.S. Constitution. The federal framework is clear under Kennedy that

merely 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 acknowledges that Delaware’s Double Jeopardy Clause is 

“virtually identical” to the federal Double Jeopardy Clause 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 defendant 
9

Recognizing 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 intent 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 remained 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 offense 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. at 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 1181 (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 counterpart44 do little to 

persuade this Court. The recitation of when a state constitutional violation may be 

raised by a party under Jones v. State45 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. Double jeopardy 

considerations arise when a defendant moves for a mistrial, and these Double 

Jeopardy clauses to bar retrial apply only when the mistrial was intentionally 

provoked by the government or the State.

47 Here, there 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 differences, 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 jeopardy in a pre-trial context in the absence of a 

mistrial caused by intentional state action. The Court rejects the proposal that we 

follow Pennsylvania’s lead where certain courts have either relaxed the intentional 

standard or have considered prosecutorial misconduct in the absence of a mistrial.48 

Defendant’s reliance on these cases does 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 to Consider Prosecutorial Misconduct 

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 rulings 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, the allegations of 

48 See Motion to Dismiss, ¶¶ 15-35, 40-62; Defendant’s Reply, ¶ 15; see also Commonwealth 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 defendant to the point of 

the denial of a fair trial.”); see 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 misconduct 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, 

the Court must 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 But 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 defendant 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 taken 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 report,” 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 suppression hearing; and (2) a subsequent cross-examination 

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

55

In Bobby Taylor, that Court 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 Court 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 The 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 compromised,” requiring 

reversal. Hunter, 815 A.2d at 737–38.

55 2019 WL 4647669 (Del. Super. Sept. 23, 2019). 

56 See id. at *5.

57 See id.
14

For the same 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 sides 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 Hughes, and 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 either 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 inconsistent with Delaware law. 

The Delaware Supreme Court in State v. Robinson59 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 

dismissal 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 Any 

relief therefore ‘“should be tailored to the injury suffered and should not 

unnecessarily infringe upon society’s competing interest in the administration of 

criminal justice.”’63 For these reasons, where the relief of a new trial has been 

afforded, Defendant fails 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 Jeopardy 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 Hughes 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 subsequent

decision of Bobby Taylor in order to find a pattern of intentional or reckless 

prosecutorial misconduct under Hunter. These Shelleyan64 theories, though 

creative, cannot survive for the reasons stated. Therefore, Defendant’s Motion to 

Dismiss is DENIED.

IT IS SO ORDERED.

/s/Vivian L. Medinilla

Vivian L. Medinilla

Judge

cc: Prothonotary

64 See MARY SHELLEY, FRANKENSTEIN; OR, THE MODERN PROMETHEUS (Lackington, Hughes, 

Harding, Mavor & Jones, 1st ed. 1818).