IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, : 

 : ID No. 1511001595 

v. :

 :

MARK A. BARTELL, :

 :

Defendant. :

Submitted: September 13, 2023

Decided: November 16 , 2023

ORDER

On this 16th day of November 2023, upon consideration of Defendant Mark 

A. Bartell’s motion for postconviction relief, the Commissioner’s Report and

Recommendation, Mr. Bartell’s appeal, the exceptions he raises in his appeal, and 

the record in this case, it appears that:

1. A Kent County jury convicted Mr. Bartell of two counts of Rape

Second Degree, one count of Rape Fourth Degree, and two counts of Criminal 

Solicitation in the First Degree on March 28, 2017. Thereafter, the Court sentenced 

him to an unsuspended twenty-six years of incarceration, followed by decreasing

levels of probation. Mr. Bartell filed a direct appeal to the Delaware Supreme Court. 

The Court affirmed his convictions.1 

2. Currently Mr. Bartell seeks postconviction relief pursuant to Superior

Court Criminal Rule 61. Originally, the Court appointed postconviction counsel for 

1 Bartell v. State, 183 A.3d 1280, 2018 WL 1565636, at *4 (Del. March 29, 2018) (TABLE). 
2

Mr. Bartell. The Court then referred the matter to a Superior Court commissioner 

for findings of fact and recommendations as permitted by 10 Del. C. § 512(b) and 

Superior Court Criminal Rule 62 (a)(5). Prior to briefing, Mr. Bartell terminated 

his relationship with his appointed counsel because of irreconcilable differences. 

When doing so, he elected to continue with his motion pro se. 

4. After considering the parties’ positions, the Commissioner issued her 

findings and recommendations in her Report attached as Exhibit A. In her Report, 

she examined Mr. Bartell’s six grounds for relief. After a complete review of the 

record, the Commissioner found that Mr. Bartell’s trial counsel provided competent 

representation and that the issues he raised caused him no concrete prejudice. She 

also examined his other grounds for relief and found them to be without merit, 

including his claims that newly discovered evidence requires the Court to grant him 

a new trial. Accordingly, she recommended that the Court deny Mr. Bartell’s motion 

for postconviction relief. 

5. Mr. Bartell then appealed the Commissioner’s Report, and on the same 

day filed what he refers to as a “Motion to Present An Actual Innocence Claim.” 

The latter filing accompanied his appeal and reiterated the same arguments he made 

to the Commissioner, which she rejected in her Report. Accordingly, the Court 

considers both filings to be Mr. Bartell’s appeal and has considered the exceptions 

he raises in both.

6. When considering Mr. Bartell’s exceptions, the Court conducts a de 

novo review to determine whether the Commissioner erred in those portions of her 

Report to which he objects.2 In Mr. Bartell’s combined submissions, he merely 

reiterates the arguments that he presented to the Commissioner. 

2 Del. Super. Ct. Crim. R. 62(a)(5)(iv).
3

7. After thoroughly considering Mr. Bartell’s exceptions to the Report,

having presided over his trial, and having reviewed his exceptions de novo, the Court 

finds that the Commissioner correctly addressed each of his arguments. She 

committed no error, and as a result, the Court adopts her Report in its entirety. 

NOW, THEREFORE, after a de novo consideration of the exceptions that 

Mr. Bartell makes regarding the Commissioner’s Report and Recommendation 

dated August 31, 2023:

IT IS HEREBY ORDERED that the Court adopts the Commissioner’s 

Report and Recommendation attached as Exhibit A, in its entirety. Accordingly, 

Mr. Bartell’s motion for postconviction relief filed pursuant to Superior Court 

Criminal Rule 61 is DENIED. 

 /s/ Jeffrey J Clark 

Resident Judge

JJC/klc

oc: Prothonotary 

cc: The Honorable Andrea M. Freud

Stephen Welch, Jr., DAG

Mark Bartell, Pro Se

 Trial Counsel
4

Exhibit A
5

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Motion for Postconviction Relief

Pursuant to Superior Court Criminal Rule 61

Stephen Welch, Deputy Attorney General, Department of Justice, for the State of 

Delaware.

Mark Bartell, Pro se.

FREUD, Commissioner

August 31, 2023

The defendant, Mark Bartell (“Bartell”), was found guilty on March 28, 2017, 

of two counts of Rape in the Second Degree 11 Del. C. § 772, as lesser included 

offenses of Rape in the First Degree; and one count of Rape in the Fourth Degree, 

11 Del. C. §770; and two counts of Criminal Solicitation in the First Degree, 11 Del. 

C. § 503. He was found not guilty of Terroristic Threatening and Offensive 

Touching. Bartell was sentenced on June 22, 2017, to seventy-six years 

incarceration; suspended after twenty-six years of incarceration. Followed by 

varying levels of probation and Bartell will have to register as a sex offender. 

Bartell appealed his conviction to the Delaware Supreme Court and raised the 

STATE OF DELAWARE,

v.

MARK A. BARTELL,

SBI # 00201292

Defendant.

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:

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ID No. 1511001595

 RK-15110502-01 Rape 2nd 

 RK-15110503-01 Rape 2nd

 RK-15110504 01 Rape 4th 

 RK-16070241 01 Crim Solic 1st

 RK-16070242 01 Crim Solic 1st
6

following grounds for relief. 

In this direct appeal, Bartell raises two claims of error. First, 

he asserts that the Superior Court erred when it denied his 

motion to sever. He claims to have suffered substantial 

prejudice because the State was permitted to use the 

criminal solicitation evidence to impugn his character and 

draw an improper inference as to his general criminal 

disposition. Second, Bartell contends that he was deprived 

of a fair trial when the Superior Court failed to declare a 

mistrial after witnesses injected inadmissible, irrelevant and 

prejudicial testimony about his past conduct.3

The Delaware Supreme Court affirmed the Superior Courts ruling. Next Bartell filed 

an initial Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 

61 on November 5, 2018, pro se. He also requested to have counsel appointed to 

represent him. The Court granted the Motion for Appointment of Counsel on 

November 29, 2018.

The Appointment of Counsel was referred to the Office of Conflicts counsel. 

On March 27, 2019, Natalie Woloshin, Esq. (“Appointed Counsel”) was appointed 

to represent Bartell. On October 4, 2019, Appointed Counsel filed a Motion to 

Compel Discovery from the State, seeking potentially exculpatory information. The 

State objected on the basis that there is no right to discovery in a postconviction 

proceeding. On January 15, 2020, I ordered the State to submit to the Court 

unredacted copies of the information requested by Appointed Counsel so I could 

review the materials in-camera to see if there was any potentially exculpatory 

information contained in the requested documents. Following my review of the 

redacted and unredacted documents. I granted the motion in-part and denied it inpart on April 8, 2020. In my ruling, I ordered the State to produce unredacted copies 

3 Bartell v. State, 183 A.3d 1280, Del. Supr., Mar. 29, 2018 at pg. 2
7

of the police report, the fingerprint analysis, ant the other documents requested by 

the defense to Appointed Counsel. I also put in place a Protective Order, to the effect 

that Bartell could not himself have access to the unredacted copies, due to valid 

safety concerns for the victim and witnesses raised by the State. Appointed Counsel 

then filed a motion to reconsider my ruling to Resident Judge Clark. The State filed 

a cross motion to reconsider, as well. On November 4, 2020, Resident Judge Clark 

denied both motions. 

There were subsequently several requests for continuance filed by Appointed 

Counsel, after the redacted documents were produced by the State. Ultimately, a 

conflict arose between Bartell and Appointed Counsel on how to proceed with the 

Motion for Postconviction Relief. Bartell requested to be able to proceed pro se. A 

colloquy was held with Bartell on August 17, 2021, to determine if he knowingly 

wished to have appointed Counsel withdrawn and proceed pro se. During the 

colloquy, Bartell stated that due to the differences in opinion concerning the 

direction on the postconviction motion should take, Bartell wished to proceed, pro 

se. I thoroughly questioned Bartell and made it clear to him that if I granted his 

request to proceed pro se, that my prior Protective Order concerning Motion to 

Compel would not change, I other words, he would not be able to have access to the 

unredacted copies provided to Appointed Counsel. Bartell acknowledged that and 

still wished to proceed pro se. 

There after Bartell filed several requests for continuance to file his Amended 

Motion for Postconviction Relief. On March 22, 2022, Bartell filed a Motion for an 

Evidentiary Hearing and a Motion for Appointment of Counsel. I denied Bartell’s 

Motion for Appointment of Counsel and asked the State to respond to the Motion 

for an Evidentiary Hearing. After several more continuance requests, the State filed 

its response on June 25, 2022. Bartell filed a reply to the State on July 11, 2022. On 
8

July 20, 2022, I ruled that due to the fact that Bartell appeared to be raising a number 

of additional issues, I would allow him an opportunity to amend his postconviction 

motion to include the additional issues or they would not be considered. As for the 

request for an evidentiary hearing, I determined it would be prudent to wait until I 

had a complete picture of exactly what Bartell was seeking before determining if an 

evidentiary hearing would be necessary. Therefore, I gave Bartell until September 

23, 2022, to notify the Court if he wished to proceed with his motion as it then stood 

or if he wished to file an amended motion to include the potential additional claims. 

On August 24, 2022, Bartell wrote the Court enumerating the grounds 

from his July 11, 2022, letter and requesting that Deputy Attorney General Stephen 

Welch and I recuse ourselves from this matter. On October 20, 2022, I denied 

Bartell’s request to recuse myself after going through the required analysis set forth 

in Los 4and determining I was not objectively or subjectively biased against Bartell. 

Additionally, due to the fact that this case had gone through a multitude of filing 

etc., and because Bartell had not, as I requested, actually filed a complete list of his 

grounds for relief, I drafted a list of what, I could decipher, as his grounds for relief. 

A briefing schedule was put in place, which first required that Bartell notify the 

Court before November 1, 2022, if he had any objection to my listing of his grounds 

for relief, attached as Appendix A. 

On October 28, 2022, Bartell informed this Court that the listing of 

grounds from Appendix A was correct. Subsequently, the matter proceeded with 

briefing. On February 21, 2023, after trial counsel and the State responded to 

Bartell’s Motion, he requested a Stay in the proceedings due to his upcoming 

surgery. The request was granted. On March 7, 2023, Bartell filed his third or fourth 

4 Los v. Los, 595 A.2d 381, 383 (Del. 1991)
9

Motion for Appointment of Counsel which was denied on March 14, 2023. Finally, 

on May 26, 2023, Bartell filed his response to the State and Trial Counsel and the 

motion was sent to me for my consideration on June 7, 2023.

After a long strange trip, The matter is finally ripe for my review. 

FACTS

According to the Affidavit of Probable Cause, on November 3, 2015, Bartell’s 

wife entered the Cheswold Police Department and stated that she had been raped by 

her husband. She stated that the assault took place between 9:00am -9:45am that day 

and caused her significant pain. According to the victim, she was thrown on her bed 

and forcibly disrobed by Bartell. The victim stated that Bartell forced his penis inside 

over vagina and her anus several times and eventually ejaculated inside her anus. 

During the rape Bartell stopped and “picked her up” by placing several of his fingers 

from his right hand inside her anus, picking her up and throwing her on the bed. The 

victim states all of this took place without her consent. She asked Bartell to stop on 

multiple occasions. She attempted to escape, but Bartell would not allow her to leave 

the bed. The victim stated that on November 2, 2015, at about 7:00 pm, she and 

Bartell were arguing over pizza and soda at which time he “flipped out” and threw 

the living room table across the room. Bartell then followed her into the kitchen area 

and tightly grabbed her around her face with both of his hands causing alarm to her. 

She stated that he held her face tightly and stated, “You are going to die a slow and 

very painful death.” 

The victim was taken to Kent General Hospital and a S.A.N.E. test was 

conducted. It was noted that the victim suffered the following injuries during the 

rape by Bartell: bruises on her knees and her neck, abrasions, and tears in her vaginal 

area, 2-centimeter hemorrhoid in her anus and other redness around her anus – all 

consistent with forceable sex. The victim stated that she was bleeding from her anus 
10

while using the bathroom shortly after she was raped. 

Bartell was arrested on November 3, 2015. While Bartell was held awaiting 

trial, he attempted to solicit two prison inmates (F’chante Robertson and James 

Hammond) to murder the victim, in order to prevent her from testifying at trial. 

Bartell was reindicted on July 5, 2016, on two counts of Criminal Solicitation in the 

First Degree.

BARTELL’S CONTENTIONS

In Bartell’s Amended Motion for Postconviction Relief, he raises the 

following ground for relief: 

Ground One Ineffective Assistance of Counsel.

Defendant was denied his due process right to a fair 

trial and the effective assistance of counsel, pursuant to 

the 5th, 6th and 14th Amendments of the U.S. 

Constitution and Articles 1 § 7 and 8 of the Delaware 

Constitution. 

A.)Defense counsel failed to raise an objection to the 

admissibility of expert witness Christina Nash and 

testimony of Y-STR profiling where a request for 

analysis under Daubert was reasonably professional 

by the Delaware Rules of Evidence.

B.)Defense Counsel failed to put the state’s case through 

meaningful adversarial, testing by waving cross 

examination of expert witness, Christina Nash.

C.)Defense counsel failed to retain services of a 

“counter” expert in the field of DNA sciences for the 

purpose of providing a reconciling defense with regard 

to the 2 types on analysis used in Defendant’s trial.

D.)Defense Counsel failed to move for a judgment of 

acquittal on the charge of rape, where testimony on YSTR profiling was insufficient as a matter of law for 

proof beyond a reasonable doubt on the element of 
11

“intercourse.” The low statistical significance of the 

profile frequency results failed to meet the D.R.E. on 

admissibility of scientific testimony. Hence, Christina 

Nash’s classification of Bode Cellmark’s testing and 

results as a “match” were misleading, confusing to the 

jury and highly prejudicial to the trial proceedings.5

Ground Two The State, through Deputy Attorney’s General, Denise 

Weeks-Tappan and Steven Smith, engaged in 

misconduct resulted in a Napue/Giglio, violation which 

abridged Defendant’s substantial rights and rights to 

due process and confrontation.

Deputy Attorney’s General allowed false testimony 

through expert witnesses Bethany Kleiser and 

Christina Nash with regard to their respective testing 

methods and reported results on the DNA samples 

without a Daubert hearing in order to determine if the 

forensic testing was scientifically sound, despite 

contradicting evidence within the mischaracterization 

of the term ‘excluded’ irrespective to the unchallenged 

“match” proclamation and the extreme prejudice to the 

defendant as a result thereafter.6

Ground Three Prosecutorial misconduct by the State for Brady and 

Jencks violations.

A.)The State failed to disclose, to the defense, the 

unredacted police report obtained by Det. Biddle 

during his investigation on charges of criminal 

solicitation.

B.) Additionally, the State failed to disclose the latent 

fingerprint report, unredacted or otherwise.7

 Ground Four Ineffective Assistance of Counsel

5

 Exhibit 1 - State v. Mark Bartell, Motion for Postconviction Relief, filed March 2, 2022, Pgs. 1-24

6

Id. Pgs. 24-41

7

Id. Pgs. 42-52
12

Defense Counsel, J’Aime Walker, erred as a matter of law 

when she failed to motion the Court for a mistrial after 

multiple violations of a Motion in Limine where highly 

prejudicial statements, deemed inadmissible, were entered 

into the proceedings through two state witnesses. 

Ground Five 4

th Amendment claim as a lack of search warrant for 

prison calls.

Ground Six There is a lack of information that should have been 

preserved regarding the chain of custody on the evidence 

samples of buccal swabs taken from the defendant and 

thereafter transported to 2 different locations by Officer 

Simms who testifies to these events. The lack of Simm’s 

personal notes (having claimed were destroyed) when 

viewed in context to the separation of key DNA samples 

calls into question the entire process surrounding the us of 

Bode CellMark in the prosecution of Bartell. 

DISCUSSION

Under Delaware Law, the Court must first determine whether Bartell has met 

the procedural requirements of the Superior Court Criminal Rule 61(i) before it may 

consider the merits of the postconviction relief claims.8 Under Rule 61, 

postconviction claims for relief must be brought within one year of the conviction 

becoming final.9 Bartell’s Motion was filed in a timely fashion, thus the bar of Rule 

61(i)(1) does not apply to this Motion. As this is Bartell’s initial motion for 

postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any 

claim not previously asserted in a postconviction motion, does not apply either.

8 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991)

9 Super. Ct. Crim. R. 61(i)(1).
13

Grounds for relief not asserted in the proceedings leading to judgment of 

conviction are thereafter barred unless the movant demonstrates: (1) cause for relief 

from the procedural default; and (2) prejudice from a violation of the movant’s 

rights.10 The bars to relief are inapplicable to a jurisdictional challenge or to a claim 

that satisfies the pleading requirements of subparagraph (2)(i) or (2)(ii) of 

subdivision (d) of Rule 61.11 To meet the requirements of Rule 61(d)(2), a defendant 

must plead with particularity that new evidence exists that creates a strong inference 

that the movant is actually innocent in fact of the acts underlying the charges of 

which he was convicted12 or that he pleads with particularity a claim that a new rule 

of constitutional law, made retroactive to cases on collateral review by the United 

States or Delaware Supreme courts, applies to the defendant’s case rendering the 

conviction invalid.13 Bartell’s Motion pleads neither requirement of Rule 61(d)(2). 

Bartell’s first and fourth grounds for relief are premised on ineffective 

assistance of counsel. Therefore, Bartell has alleged sufficient cause for not having 

asserted these grounds for relief at trial and on direct appeal. Bartell’s second, third, 

fifth, and sixth grounds for relief are not based on ineffective assistance of counsel 

and he fails to give any cause for not raising them at trial or on direct appeal and 

consequently they should be barred by Superior Court Criminal Rule 61 (i)(3). 

Bartell’s ineffective assistance of counsel claims are not subject to the procedural 

default rule in part because the Delaware Supreme Court will not generally hear such 

claims for the first time on direct appeal. For this reason, many defendants, including 

Bartell, allege ineffective assistance of counsel in order to overcome the procedural 

default. “However, this path creates confusion if the defendant does not understand 

10 Super. Ct. Crim. R. 61(i)(3).

11 Super. Ct. Crim. R. 61(i)(5).

12 Super. Ct. Crim. R. 61(d)(2)(i).

13 Super. Ct. Crim. R. 61(d)(2)(ii).
14

that the test for ineffective assistance of counsel and the test for cause and prejudice 

are distinct, albeit similar, standards.”14 The United States Supreme Court has held 

that:

[i]f the procedural default is the result of ineffective 

assistance of counsel, the Sixth Amendment itself requires 

that the responsibility for the default be imputed to the 

State, which may not ‘conduc[t] trials at which persons 

who face incarceration must defend themselves without 

adequate legal assistance;’ [i]neffective assistance of 

counsel then is cause for a procedural default.15

A movant who interprets the final sentence of the quoted passage to mean that he 

can simply assert ineffectiveness and thereby meet the cause requirement will miss 

the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a 

movant must engage in the two-part analysis enunciated in Strickland v. 

Washington16 and adopted by the Delaware Supreme Court in Albury v. State.

17

The Strickland test requires the movant to show that counsel’s errors were so 

grievous that his performance fell below an objective standard of reasonableness.18 

Second, under Strickland, the movant must show there is a reasonable degree of 

probability that, but for counsel’s unprofessional effort, the outcome of the 

proceedings would have been different; that is, actual prejudice.19 In setting forth a 

claim of ineffective assistance of counsel, a defendant must make and substantiate 

concrete allegations of actual prejudice or risk summary dismissal.20 Generally, a 

claim for ineffective assistance of counsel fails unless both prongs of the test have 

14 State v. Gattis, 1995 WL 790961 (Del. Super.)

15 Murray v. Carrier, 477 U.S. 478, 488 (1986).

16 466 U.S. 668 (1984).

17 551 A.2d 53, 58 (Del. 1988).

18 Strickland, at 687. See Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996)

19

 Outten v. State, 720 A.2d 547, 557 (Del. 1998), citing Boughner v. State, 1995 WL 466465 at *1 (Del. Supr.).

20 Strickland, at 687.
15

been established.21 However, the showing of prejudice is so central to this claim that 

the Strickland court stated “[i]f it is easier to dispose of an ineffectiveness claim on 

the ground of lack of sufficient prejudice, which we expect will often be so, that 

course should be followed.”22 In other words, if the Court finds that there is no 

possibility of prejudice even if a defendant’s allegations regarding counsel’s 

representation were true, the Court may dispose of the claim on this basis alone.23 

Furthermore, Bartell must rebut a “strong presumption” that trial counsel’s 

representation fell within the “wide range of reasonable professional assistance,” and 

this Court must eliminate from its consideration the “distorting effects of hindsight 

when viewing that representation.”24

Moreover, there is a strong presumption that Trial Counsel’s conduct 

constituted sound trial strategy.25 In Harrington v. Richter,26 the United States 

Supreme Court explained the high bar that must be surmounted in establishing an 

ineffective assistance of counsel claim. In Harrington, the United States Supreme 

Court explained that representation is constitutionally ineffective only if it so 

undermined the proper functioning of the adversarial process that the defendant was 

denied a fair trial.27 The challenger’s burden on an ineffective assistance of counsel 

claim is to show that counsel made errors so serious that counsel was not functioning 

as the “counsel” guaranteed the defendant by the Sixth Amendment. It is not enough 

to show that the errors had some conceivable effort on the outcome of the 

21 Id, at 697.

22 Id. 

23 State v. Gattis, 1995 WL 790961 (Del. Super.).

24 Supra, at 689; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

25 Id., at 668, 689.

26 Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011)

27 Id, at 791.
16

proceeding. Counsel’s errors must be so serious as to deprive the defendant of a fair 

trial.28

Counsel’s representation must be judged by the most deferential of standards. 

The United States Supreme Court cautioned that reviewing courts must be mindful 

of the fact that unlike a later reviewing court, the attorney observed the relevant 

proceedings, knew of materials outside the record, and interacted with his client, 

with opposing counsel, and with the judge. In light of this strong precedent, I have 

reviewed the file, considered the Trial Counsel’s affidavits, and the arguments of 

counsel and I conclude that Bartell has failed to meet the burden imposed by 

Strickland. Trial Counsel denies Bartell’s allegation. I find Trial Counsel’s affidavit 

more compelling than Bartell’s allegation. I find that Trial Counsel represented 

Bartell effectively. I also conclude the State acted appropriate and in no way violated 

any of Bartell’s rights or chance for a fair trial. 

Turning to each of Bartell’s grounds for relief. The first claim of ineffective 

assistance of counsel which Bartell raises in his motion for postconviction relief is 

that his Trial Counsel was constitutionally ineffective because she failed to object to 

the testimony of DNA expert, Christina Nash, (“Nash”), who testified about the 

results of Y-STR DNA testing which was conducted in this case. In her affidavit 

which was filed on January 17, 2023, Trial Counsel states that Y-STR DNA testing 

is “accepted in Delaware Courts and is considered scientifically valid.” A Westlaw 

search for case law on this issue reveals that a large number of courts across the 

United States have accepted the validity of Y-STR DNA testing, which uses the 

standard DNA testing process to seek to match “Y” chromosome DNA which is 

28 Id.
17

transmitted through a male’s paternal line of ancestry.29 In State v. Roth30, after 

conducting a Daubert hearing, the Delaware Superior Court permitted Y-STR DNA 

testing results to be admitted into evidence, with regard to results which could be 

proven to have statistical relevance. 

It appears that the primary difference between Y-STR testing and the more 

familiar DNA testing process which does not focus on the “Y” chromosome is that 

Y-STR testing yields lower levels of statistical certainty31. However, while this 

might preclude admissibility in some situations, Bartell did not cite any cases which 

hold that Y-STR DNA evidence is not admissible in circumstances comparable to 

those in this case.

There are a few Delaware cases dealing with very low levels of statistical 

probability which arguably could support Bartell’s argument. In Strickland,32 the 

Superior Court ruled that DNA evidence was not admissible when the expert would 

have testified that there was one-in-two chance that DNA which was found on a 

weapon matched that of the defendant. Likewise in Roth,33 the Court declined to 

admit certain Y-STR DNA evidence when the expert testimony would have 

established that there was a 50.2% chance that the questioned DNA in a mixed 

sample matched that of the defendant. In Bartell’s case, however, the statistical 

relevance of the evidence is much greater. The DNA expert testified that the profile 

which was developed –matched that of Bartell – did not match any of the 5,259 

profiles in the U.S. STR database. She also testified that she had calculated, with 

95% confidence, that the DNA profile develop in this case would match that of one 

29 See, e.g., Commonwealth v. Clark, 34 N.E.3rd 1(Mass. 2015); State v. Jones, 345 P.3rd 1195 (Utah 2015); 

Nebraska v. Tucker, 920 N.W. 2d 680 (Neb.2018); People v. Stevey, 148 Cal. Rptr. 3d 1 (CA App. 2012).

30 State v Roth, 2000 WL 970673 (Del. Super. 2000)

31 State v. Jones, 345 P.3rd at pp. 1208-1209

32 Strickland v. State, 2016 WL 2732248 (Del. Super. 2016)

33 Supra
18

in every 1,757 males in the population of the United States.34 Given this level of 

statistical discernment, the STR test results in this case were relevant and admissible 

in evidence.35 Considering the foregoing, Trial Counsel would have had no reason 

to file a challenge to the admissibility of the STR DNA testing and no legal basis to 

do so.

Bartell’s second ineffective assistance claim is that Trial Counsel failed to put 

the State’s case through “meaningful adversarial testing” by waiving crossexamination of the DNA expert, Christina Nash, (“Nash”). In her affidavit, Trial 

Counsel responded, that there was no point cross-examining Nash because Bartell 

and the victim were a married couple who lived together, and therefore “the presence 

of his DNA would not be surprising or unexpected.” In her closing statement, Trial 

Counsel suggested to the jury that the victim had “fabricated” the allegation of rape 

because she wanted to “continue a new relationship.”36 She argued that, by the 

victim’s own admission, she had engaged in vaginal and anal intercourse with 

Bartell many times during the course of their 15-year marriage, and therefore the 

presence of Bartell’s DNA wasn’t “that big of a surprise.”

The decision whether to cross-examine a witness is a tactical decision which 

Trial Counsel is entitled to make in pursuance of a reasonable trial strategy.37 As 

long as trial counsel’s decision with regard to cross-examination was reasonable, it 

cannot provide a basis for finding of ineffective assistance of counsel.38

34 State v Bartell, 2017 WL 384314, Del.Super., Jan. 25, 2017, Trial Transcript pp. C-29-31

35 See Washington v. State, 153 A.3d 76 (Table) (Del. 2016) (DNA results admissible when just one of every eleven 

members of the African American population would likely have a DNA profile matching that of the defendant and 

of DNA found on a gun)); Roth v. State, 2000 WL 970673 (Del. Super. 2000) evidence of DNA results from mixed 

samples admissible when testimony would have established a probability of 99% or grater that defendant was the 

donor. 

36 Supra, Trial Transcript p E-49

37 Shelton v. State, 774 A.2d 465, 479 (Del. 2000)

38 Id.
19

There is no reason to believe that trial Counsel would have been able to make 

headway with the jury by trying to challenge testimony about DNA evidence which 

there is no reason to doubt. Clearly, trial counsel made a tactical decision not to 

challenge the DNA evidence but to minimize it by arguing that there was a valid 

reason why Bartell’s DNA would have been present in this case. Without question, 

this was a reasonable trial strategy. 

Bartell’s third ineffective assistance of counsel argument is that Trial Counsel 

failed to retain a ‘counter’ expert in the field of DNA evidence. In her affidavit, Trial 

Counsel concedes this fact but points out that her office retained both a SANE expert 

and a handwriting expert. She states that the DNA evidence in the case was reviewed 

by a forensic nurse who is employed by the Public Defender’s Office – i.e., the 

evidence was in fact reviewed by someone with expertise and training in the filed of 

forensic evidence. While Bartell alleges that an outside expert should have been 

retained to testify at his trial, he has not even arguably established that there was a 

need for this to occur, or that such testimony would have proved to be of value to 

Bartell’s defense. Bartell has not established that his case was prejudiced in any way 

by the failure to retain an outside DNA expert. 

It should be noted that the SANE expert testified at trial, in effect, that the 

physical/medical evidence in the case was inconsistent with the victim’s statements 

about what occurred.39 In other words, Trial Counsel did make a serious effort, 

through the testimony of an expert witness, to challenge the probative value of the 

forensic evidence presented by the State. Retaining a SANE expert was certainly a 

better trial strategy than retaining an outside DNA expert to make a pointless 

challenge to DNA evidence.

39 State v Bartell, 2017 WL 384314, Del.Super., Jan. 25, 2017, Trial Transcript pp. D-20-49
20

Bartell takes issue with the propriety of the State’s decision to retain a second 

laboratory to conduct STR DNA analysis in this case. He points out that the D.F.S. 

analyst, Bethany Kleiser,(“Kleiser”) testified that Bartell was “excluded” as a 

contributor to the mixed samples (the rectal swabs) which she analyzed. These are 

the swabs from which the second laboratory (Bode Cellmark) was able to develop 

the STR DNA which matched that of Bartell. While there is an apparent 

inconsistency in these results, it should be noted that Kleiser testified that the term 

“excluded” can include situations in which DNA is not present or in which the “the 

DNA level is just too low.”40 What happened in this case is that the second 

laboratory, Bode Cellmark, was able to amplify the DNA which was present –

making “millions of copies” – and then to obtain results with Y-STR DNA 

analysis.41 Despite Bartell’s claims, the State did nothing wrong by sending the DNA 

extracts from D.F.S. for follow-up testing at Bode Cellmark. The admission of this 

testimony did not mislead the jury or prejudice Bartell.

Bartell’s fourth claim is that Trial Counsel represented him ineffectively 

because she failed to make a motion for judgement of acquittal regarding the rape 

charge. At various points in his written submission, Bartell complains that trial 

Counsel in effect “conced[ed]” that he had engaged in intercourse with the victim. 

At other times Bartell himself seems to concede that intercourse occurred and to 

argue that, for this reason, DNA testimony was unnecessary: “There was never any 

question as to the accused of the alleged act, so why would the State need to employ 

multiple experts to testify to confirm identity?”

In fact, based on the DNA evidence and the victim’s testimony, there was no 

basis for Trial Counsel to argue that the State’s evidence, when viewed in the most 

40 Id. at Trial Transcript B-128

41 Id. at Trial Transcript C 25-26
21

favorable light, did not establish that intercourse between Bartell and the victim had 

occurred. There would have been no point in making a motion for judgment of 

acquittal regarding the rape charges. 

Bartell’s second ground for relief contends that the State in this case 

committed an act of misconduct by presenting testimony from the two DNA 

analysts, Kleiser and Nash. In part, for reasons previously discussed, this contention 

has not basis. The evidence was admissible, and the presentation of the evidence at 

Bartell’s trial did not amount to prosecutorial misconduct. DNA evidence is 

routinely presented at criminal trials in Delaware. The State in this case had no 

reason to believe that the DNA results were false or inadmissible in evidence. 

Clearly this ground for relief is procedurally barred and meritless.

The third ground for relief made by Bartell alleges that the State failed to 

disclose certain evidence. Bartell claims that the State failed to disclose an 

unredacted police report obtained by Det. Biddle during his investigation. However, 

a redacted copy of the report was sent Bartell’s Trial Counsel on December 14, 2016. 

This was more than three months before Bartell’s trial. The report is dated November 

10, 2016. Consistent with the State’s policy and with the requirements of the 

“Victims’ Bill of Rights,” the report was redacted to prevent disclosure of the names 

and contact information of witnesses.42 It is important to note that Delaware’s 

discovery rules do not require the State to provide police reports to the defense.43 In 

Bartell’s case, the State agreed to provide redacted police reports in return for 

Bartell’s agreement to waive his preliminary hearing. However, the provision of 

redacted reports does not create a right to disclosure of unredacted reports.44 In 

42 11 Del.C.§ 9403

43 Superior Court Criminal Rule 16(a)(2)

44 State v. Cooke, 2022 WL 17817903 (Del.Super. 2022)
22

addition, although the report was redacted when it was provided in discovery, there 

can be no doubt that, during the trial, Trial Counsel knew the identity of the person 

reference in the report.

Bartell also alleges that the State failed to disclose a latent fingerprint report. 

However, the report was provided to Trial Counsel by letter dated October 7, 2016. 

Once again, certain portions of the report were redacted to protect the identity of the 

potential witnesses. However, testimony about the fingerprints results was presented 

by the State at trial. Seemingly, this testimony would have benefited the defense by 

establishing that the fingerprints of persons other than Bartell were on the diagram 

of his residence which was introduced into evidence. In any event, it is unclear how 

the defendant was prejudiced by the manner in which the fingerprint report was 

disclosed and/or by the handling of the evidence at trial. As previously noted, the 

fingerprint results were brought out at trial. Det. Biddle also testified that a person 

who touches a piece of paper does not always leave a fingerprint, and that the 

diagram of the Bartell residence which was admitted into evidence in this case 

accurately depicted the layout of the home.45 This ground for relief is both 

procedurally barred and meritless.

Ground four centers on Trial Counsel’s failure to move for a mistrial after 

several violations of a Motion in Limine occurred. Specifically, the SANE nurse who 

testified for the State, stated non-specifically, that the victim told her, “this has 

happened before.” Trial Counsel immediately objected, and with her agreement, the 

trial judge promptly told the jury to “disregard the last response that you heard. It 

has no basis in evidence in this case.” 46 In Delaware, a trial judge’s prompt curative 

instruction is presumed to correct errors and to adequately direct jurors to disregard 

45 State v Bartell, 2017 WL 384314, Del.Super., Jan. 25, 2017, Trial Transcript pp. C 92-93

46 Id. at pp B 60-62
23

inadmissible evidence. Jurors are presumed to follow the Court’s instructions.47 In 

this case, Trial Counsel acted promptly to cure the error which occurred, and there 

was no manifest necessity for a mistrial. 

During the testimony of Bartell’s sister, Mary Davis, the State played a 

recording of a prison phone call between her and Bartell. During this phone call, Ms. 

Davis made a reference to a “PFA” which the victim had obtained; this reference 

had mistakenly not been redacted as previously agreed. Also, during her live 

testimony, in an answer which was not directly responsive to the prosecutor’s 

question, Ms. Davis testified that “there was a protection order done.” The trial judge 

found that these violations of the pre-trial order were inadvertent and asked Trial 

Counsel, who had not objected to either, of the comments, if she wanted to request 

a curative instruction. The judge suggested that many jurors may not even know 

what a PFA is. In what she expressly agreed was a strategic choice, Trial Counsel 

chose not to request a curative instruction, obviously not wanting to highlight what 

had occurred. The Delaware Supreme Court later referred to these references to 

protective order as “Only vaguely pointing accusatory fingers at Bartell.”48

On direct appeal, the Supreme Court reviewed the three inappropriate 

references under the plain error standard and found that Bartell had not carried his 

burden of showing that hey had substantially prejudiced him. Despite this ruling, 

Bartell now recasts the issue as one of ineffective assistance of counsel. However, 

none of these errors was the fault of Trial Counsel. With regard to the first reference, 

made by the SANE nurse, she immediately objected, and the Court ordered the jury 

to disregard the testimony. With regard to the references to the PFA, Trial Counsel 

made what appeared to have been a reasonable decision not to highlight the 

47 Revel v. State, 956 A.2d 23, 27 (Del. 208)

48 Bartell v. State, 183 A.3d 1280 (Table) (Del. 2018)
24

testimony by seeking a curative instruction. Given that the Supreme Court has 

already found that Bartell was not substantially prejudiced by these comments, it is 

clear that a mistrial was not warranted, and that Trial Counsel did not deal with these 

issues in a constitutionally ineffective manner. 

Bartell next asserts that the State should have obtained a search warrant before 

listening to his prison phone calls. However, the calls in question were made on a 

recorded phone line. A recording which plays during each phone call informs the 

persons on the call that the line is recorded. For this reason, and because the call is 

being made by an inmate inside a correctional facility, there is a reduced expectation 

of privacy, and a search warrant is not needed for the State to obtain copies of the 

recorded calls.49 Rather, the State can subpoena the recordings as long as it has a 

reasonable basis for doing so.50 In this case, the State had a reasonable basis to 

subpoena the phone calls as there were allegations that the defendant was trying to 

make arrangements to have the victim murdered. In these circumstances, it was 

reasonable for the State to subpoena the recordings of the phone calls. The fact that 

other relevant evidence may have been developed during review of the phone calls 

did not render the original subpoena “a Fishing Expedition,” as Bartell asserts in his 

legal memorandum. It should be noted, also that the phone calls did in fact reveal 

that Bartell wanted the victim dead, and that he wanted somebody to “take her out.”51

This ground for relief is both procedurally barred and meritless.

Bartell’s sixth claim relates to an alleged failure to preserve information with 

regard to the chain of custody on buccal swabs which were collected from him and 

49 Whitehurst v. State, 83 A.3d 362, 366-367 (Del. 2013)

50 Id.

51 State v Bartell, 2017 WL 384314, Del.Super., Jan. 25, 2017, Trial Transcript pp. D 84-85
25

analyzed. Bartell also claims that a Brady violation occurred because Officer Simms 

from Cheswold PD failed to preserve certain notes.

Officer Simms testified that he secured a search warrant so that a buccal swab 

could be collected from Bartell. After Bartell was arrested, Detective. Richey of the 

Delaware State Police collected the swab in Officer Simms’ presence. Officer 

Simms also testified that he took possession of the SANE kit which was collected 

from the victim by the SANE nurse when the victim went to the hospital. The SANE 

kit was stored in the evidence locker at the Cheswold Police Department after it was 

packaged and was later transported to the Division of Forensic Sciences (“D.F.S.”) 

in Wilmington, along with some of the other evidence. Officer Simms testified with 

regard to the SANE kit, that he marked the evidence with his initials before sealing 

it and securing it in the evidence locker, to ensure that it would not be tampered with. 

Simms later testified that he picked up the evidence from D.F.S. and transported it 

back to Cheswold Police Department. Simms testified that he took Bartell’s buccal 

swabs to the Bode Laboratory in the D.C. area.

The DNA analyst from the D.F.S. laboratory, Bethany Kleiser, testified about 

D.F.S. evidence handling procedures and said that the evidence which she examined 

was received at the Laboratory on November 12, 2015. Kleiser testified that the 

evidence which was received at the laboratory included the SANE kit, buccal sample 

from Bartell and a comforter from the Bartell residence. After describing the tests 

which were conducted on the evidence, Kleiser testified that some of the samples 

were sent to the Bode laboratory for further testing. She described how the samples 

would have been re-packaged and turned over to the police for transportation to 

Bode. She stated that they were stored in the D.F.S. evidence locker until she turned 

them over to Chris Workman, Chief of the Cheswold Police Department.
26

The DNA analyst from Bode Cellmark, Nash, testified that Bode’s records 

established that Officer Louis Simms hand-delivered evidence to Bode on April 22, 

2016, at 11:22 a.m. Nash testified that she recognized the signature of the Bode 

employee who received the evidence. The evidence was then marked with Bode 

identification numbers and stored in the evidence locker until she subsequently 

tested it. She testified that the evidence would have been checked to make sure that 

it was properly sealed. Nash continued to testify that the evidence received at Bode 

included a sample from an anal swab from the victim, a buccal swab or sample from 

Bartell and two “tubes of extract.”52 It was during Nash’s testimony that the State 

moved the buccal swab from Bartell into evidence, as State’s exhibit number 9, 

without objection from Trial Counsel. This exhibit was signed by PFC Louis Simms 

and establishes proper chain of command of the collected evidence. 

In this case, whatever minor discrepancies or gaps might have existed in the 

testimony there can be no doubt that the buccal sample was collected Bartell by Det. 

Ritchey in the presence of Officer Simms, transported to the D.F.S. laboratory by 

Officer Simms, and then subsequently transported to the Bode Laboratory for further 

analysis. Trial Counsel did not object to the admission of this evidence because there 

was no reason for her to object. Any objection which she raised would have been 

overruled, and if need be, the State would have had the opportunity to present 

additional evidence clarifying or resolving any arguable issues with the chain of 

custody. The key point is that there is no reason to believe that the buccal swab was 

misidentified or tampered with. 

In Hairston53, the Delaware Supreme Court stated:

When the State seeks to authenticate [evidence] by establishing 

chain of custody, it is not required ‘to produce evidence as to every 

52 State v Bartell, 2017 WL 384314, Del.Super., Jan. 25, 2017, Trial Transcript pp. C 20-22

53 Hairston v. State, 249 A.3d 375, 381 (Del. 2021)
27

link in the chain of custody. Rather, the State must simply 

demonstrate an orderly process from which the trier of fact can 

conclude that it is improbable that the original item has been 

tampered with or exchanged.’ This Court has ruled that, where there 

are inconsistencies or gaps in the testimony offered to establish the 

authenticity of evidence, the ‘factual discrepancies, and the 

inferences to be drawn from them, go to the weight to be accorded 

the evidence rather than to its admissibility.’

Note that Hairston involved the admissibility of controlled substances, and thus 

implicated Statutes 10 Del. C. § 4330, et seq. which are not applicable to the DNA 

evidence in Bartell’s case. Nonetheless, the general principle remains the same. The 

chain of custody must “eliminate possibilities of misidentification and adulteration, 

not absolutely, but as a matter of reasonable probability.”54 In Bartell’s case, that 

standard was met. This ground is meritless. 

With regard to Bartell’s desire for an evidentiary hearing on the issue of 

“newly discovered evidence,” Bartell’s request for a new trial based on newly 

discovered evidence it is time-barred and because the alleged newly discovered 

evidence is impeachment evidence rather than substantive evidence of guilt or 

innocence. Additionally, it is evidence that could have been acquired prior to trial 

and as such is not “new.” In fact, Trial Counsel hired handwriting expert, Donna 

Eisenberg, (“Eisenber”). Eisenberg testified that the handwriting on the contested 

diagram of the Bartell residence did not match the known handwriting of Bartell. 

The jury heard this testimony and was also informed that F’Chante Robert’s and 

Jazzman Wilson’s fingerprints were on the diagram, and that Bartell’s fingerprints 

were not on the diagram. It is clear that Trial Counsel made considerable efforts to 

contest the claim that Bartell had prepared the diagram. The most effective evidence 

54 Tricoche v. State, 525 A.2d 151, 153 (Del. 1987)
28

supporting the claim, however, was certainly Det. Biddle’s testimony that the 

diagram of the interior of the Bartell residence was accurate.55 This supported the 

strong inference that the information on the diagram came from Bartell, whether or 

not he was the person who actually wrote the notes on the diagram. Additionally, a 

second inmate, James Hammond, testified at trial that Bartell also solicited him to 

kill the victim. Finally, the recorded prison phone calls established that Bartell 

stated, in his calls to his sister, that he wanted the victim dead, and he wanted her 

“taken out.”56 In light of all the evidence, even if the report from Mr. Baggett is 

deemed “newly discovered,” it seems unlikely that the jury would have had reason 

to doubt the Bartell’s guilt of the two counts of Criminal Solicitation, First Degree. 

Clearly any “new Evidence” Bartell now seeks to admit is merely cumulative and 

only gives to impeachment. Consequently, I deny his request or an evidentiary 

hearing.

CONCLUSION

In conclusion I find Bartell has failed to establish that his Trial Counsel was 

ineffective, or that the State acted inappropriately, nor has he established the need 

for an evidentiary hearing. Consequently, I recommend the Court DENY the 

Motion, as meritless.

/s/ Andrea M. Freud

 Commissioner

55 State v Bartell, 2017 WL 384314, Del.Super., Jan. 25, 2017, Trial Transcript pp. C 92-93

56 State v Bartell, 2017 WL 384314, Del.Super., Jan. 25, 2017, Trial Transcript pp. D 84-85