IN THE SUPREME COURT OF THE STATE OF DELAWARE

REUEL RAY, §

§ No. 197, 2021

Defendant Below, §

Appellant, § Court Below: Superior Court

§ of the State of Delaware 

v. §

§ Cr. ID No. 1210020570A(N)

STATE OF DELAWARE, § 

 §

Appellee. §

Submitted: April 6, 2022

Decided: July 1, 2022

Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and

MONTGOMERY-REEVES, Justices, constituting the Court en banc.

Upon appeal from the Superior Court. REVERSED IN PART, AFFIRMED IN 

PART, AND REMANDED.

Benjamin S. Gifford IV, Esquire, Wilmington, Delaware, for Appellant Reuel Ray.

Matthew C. Bloom, Esquire, DELAWARE DEPARTMENT OF JUSTICE, 

Wilmington, Delaware, for Appellee State of Delaware. 
2

TRAYNOR, Justice, for the Majority:

On May 21, 2012, at approximately 7:30 p.m., Craig Melancon was felled by 

three gun shots, one from a .22 caliber firearm and the two others from what 

appeared to be a .38 caliber revolver. An hour later, Melancon was pronounced dead 

at the hospital.

The shooting occurred outside the home of a friend, who found Melancon 

lying on the ground and struggling for his life. The friend, Anthony Coursey, and 

another bystander, Marla Johnson, saw two hooded individuals running from the 

scene. Coursey later identified one of the fleeing men as Reuel Ray.

Ray was charged with, and ultimately convicted of, felony murder, attempted 

robbery, and related crimes, for which he received a life sentence plus 20 years. He 

appealed those convictions to this Court, claiming that the trial court erred by: (1) 

not granting a mistrial after a juror expressed concerns for her safety, and (2) not 

providing the jury with certain cautionary instructions, neither of which Ray 

requested, following the denial of Ray’s mistrial request. In July 2017, this Court 

affirmed Ray’s convictions.

Soon after that, Ray moved for postconviction relief under Superior Court 

Criminal Rule 61 and, in due course, his appointed counsel filed an amended Rule 

61 motion. In his amended motion, Ray claimed that he was entitled to an 

evidentiary hearing and postconviction relief for three reasons. First, he argued that 
3

the State’s failure to disclose that, approximately one month before Ray’s trial, it 

had dismissed a criminal charge then pending against a key prosecution witness 

violated his due process rights under Brady v. Maryland.

1

 Had Ray been armed with 

knowledge of this dismissal, he believes that it is reasonably probable that he could 

have demonstrated the witness’s bias and gained an acquittal. Next, Ray claimed 

that his trial counsel’s inadequate pretrial investigation, which failed to uncover the 

witness’s pending charge and its eventual dismissal, constituted ineffective 

assistance of counsel in violation of Ray’s right to counsel and due process. Finally,

Ray asserted that his counsel failed to provide effective representation at trial and on 

appeal by allowing an obviously flawed jury instruction on the elements of felony 

murder to guide the jury’s deliberations.

The Superior Court rejected each of Ray’s arguments and denied the amended 

Rule 61 motion.2 In his appeal to this Court, Ray has abandoned his claim that his 

trial counsel mounted a constitutionally ineffective investigation but maintains his 

Brady claim and his ineffective-assistance claim as it relates to the court’s felonymurder instruction. 

In this opinion, we conclude that the Superior Court’s erroneous felonymurder instruction—an instruction that, by everyone’s lights, does not embody an 

1 Brady v. Maryland, 373 U.S. 83 (1963). 

2

State v. Ray, 2021 WL 2012499 (Del. Super. Ct. May 19, 2021).
4

accurate statement of the law—and Ray’s counsel’s failure to object or to raise the 

error on direct appeal warrant the entry of postconviction relief in the form of a new 

trial on the felony-murder charge and the related firearm charge. We reject, 

however, Ray’s contention that the State’s Brady violation justifies relief as to all 

his convictions. Because those convictions were not influenced by the flawed 

felony-murder instruction and are supported by abundant evidence independent of 

the putatively biased witness’s testimony, we remain confident in them. 

I

A

During the afternoon of May 21, 2012, Ray had a phone conversation with his 

brother Richard, who was detained at Howard R. Young Correctional Institution in 

default of $50,000 secured bail. Ray told his brother that if he could “hit a lick,”

that is, commit a robbery, he “could put that money up” for Richard’s bail.3 A few 

minutes before 9:00 that evening—about an hour and a half after Melancon was shot 

and killed—the Ray brothers had a follow-up conversation on the phone. Ray then 

reported to Richard that he tried “to hit a lick,” but it didn’t work out as planned.4 

According to Ray, “[i]t just happened. You are going to read about it tomorrow. He 

got checked out.”5 According to the prosecution, the first of these conversations 

3 State’s Ex. 16.

4 State’s Ex. 17.

5

Id.
5

describes the Rays’ hatching of a plan to commit robbery, and the second describes 

how that plan went awry and devolved into the murder of Craig Melancon. This 

translation of Ray’s slang was supported by the testimony of the detective in charge 

of the homicide investigation.6

Perhaps the most damning trial testimony came from Tyare Lee, Ray’s codefendant. Lee, who was 21 years old at the time of trial and Ray’s friend since 

elementary school, had pleaded guilty a year earlier to an array of crimes, including 

second degree murder, for his role in Craig Melancon’s murder.7 Because of those 

guilty pleas, Lee was facing a possible sentence of life plus 77 years in prison, with 

a minimum mandatory prison sentence of 24 years. 

Lee explained how he and Ray had encountered Melancon at a basketball 

court in the Southbridge section of Wilmington during the afternoon of May 21. Lee 

was carrying a .22 revolver in his waistband, while Ray was carrying a .38 revolver. 

Lee asked Melancon, who was known to sell marijuana for Anthony Coursey, if he 

might purchase some that day. Melancon then walked, along with Lee, Ray, a 

female, and a child, in the direction of Coursey’s residence on Townsend Place. 

Melancon parted company with the others and was next seen by Lee coming out of 

6

See, e.g., the testimony of Detective Michael Gifford of the Wilmington Police department at 

App. to Opening Br. at A277 (“Doing a lick means you are committing a robbery . . . checked 

out . . . means that someone has been killed.”).

7 On January 6, 2014, Lee entered pleas of guilty to murder in the second degree, attempted robbery 

in the first degree, conspiracy in the second degree, and two counts of possession of a firearm 

during the commission of a felony.
6

Coursey’s front doorway. Right before that, Ray had told Lee that he intended to 

“get” Melancon, meaning he planned to rob him.8

As Melancon approached, Lee and Ray pulled out their guns, and Ray told 

Melancon not to move. Lee described what happened next: “[Melancon] was 

standing in front of us, and he went to reach -- I guess he was going into his pocket 

or something[.] I had a reflex. I pulled the trigger . . . [and] the gun went off.”

9

 In 

Lee’s telling, Melancon did not fall after Lee’s shot, but he turned around “facing 

away” from Lee and Ray.10 Lee recalled that he started to run and as he ran, Ray 

fired his gun at Melancon “[a]bout four or five times.”

11

 Lee believed that Ray’s 

shots hit Melancon, because he fell after the second round of shots. After Ray shot 

his gun, he turned and ran, following Lee.

Ray and Lee parted ways, and, soon after that, Lee flagged down a friend—

Barry Miller—who was in his car heading to another section of Wilmington. Lee 

asked Miller for a ride to his residence, which was in the same general direction as 

Miller’s destination. As the two proceeded out of Southbridge, they encountered 

Brandon Tann, who was riding a bicycle. Tann also hitched a ride with Miller, who 

testified that Tann appeared “scared” and possibly armed.12 Miller dropped off Lee 

8 App. to Opening Br. at A342.

9

Id. at A343.

10 Id. at A344.

11 Id.

12 Id. at A249.
7

and Tann at their respective Wilmington residences, Lee first and then Tann. During 

this drive, Miller was unaware of the shooting of Melancon in Southbridge.

Lee did not speak again with Ray that day but ran into him the next day. In 

the following days, Ray helped Lee sell his .22 revolver. Lee also knew that Ray 

had sold his .38 revolver to Darren Lamotte.

Lamotte did not testify at Ray’s trial, but the parties stipulated that, during the 

second week of June, Lee and Ray approached Lamotte and asked him if he wanted 

to purchase a gun for $400. In due course, Lee and Ray went to Lamotte’s residence 

at 433 South Claymont Street and, “[w]hile in Lamotte’s bedroom, Ray pulled a 

revolver handgun from his person and laid it on the bed.”13 Lamotte then took 

possession of the gun in exchange for $400. A couple weeks later, Lee and Ray 

asked Lamotte to return the gun, but he refused. 

Other witnesses filled in details that were missing from Tyare Lee’s account. 

For instance, the female who walked from the basketball court in the direction of 

Coursey’s residence—Marla Johnson—recounted that she was at the court with her 

four-year-old grandson. Melancon, who had been dating Johnson’s daughter, and 

two men wearing black hooded sweatshirts—“[o]ne . . . short and stubby” and the 

other “thinner [and] taller”—were also there.14 Ray is 5’7” tall and weighs nearly 

13 Id. at A509.

14 Id. at A214.
8

200 pounds, while Lee stands 6-feet tall and weighs 145 pounds. The two 

unidentified men chatted with Melancon and then, as Lee described, walked away 

from the court on Townsend Place.

Johnson and her grandson eventually parted ways with the three men. She 

went toward her residence, while the other three headed in the direction of Coursey’s 

house. Johnson was at her house for “about a good five minutes”15 when, as she was 

making a sandwich for her grandson, she heard four gunshots. She ran outside, 

finding Melancon lying on the ground, “clenching . . . the grass . . . , just really 

trying to hold onto life . . . .”16 Johnson also saw the two previously described 

hooded men running away from the scene. Although Johnson did not identify either 

of the two men, she did confirm that they were the same two men who had walked 

with her, her grandson, and Melancon from the park.

Anthony Coursey confirmed that Melancon visited his house on Townsend 

Place in Southbridge shortly before the shooting. While Melancon was there, 

Coursey noticed Lee peeking from behind a nearby house as if he was “up to 

something.”17 After that, Coursey ordered a pizza, and, about ten minutes later, 

Melancon left the house. As the pizza was being delivered to Coursey at the back 

of his house, he heard five shots, causing him to run to the front of the house, from 

15 Id. at A216.

16 Id. at A215.

17 Id. at A228.
9

which he could then see Melancon on the ground. Coursey noticed that, while his 

friends and “another lady . . . [who was] living next door” went to the prone 

Melancon, Lee and Ray were running away. The police arrived ten to fifteen 

minutes later.

That was the last Coursey saw of Ray that day. But a few days later, Coursey 

encountered Ray and Lee at a nearby gas station. According to Coursey, Ray 

approached him and said, “I ain’t mean to shoot your friend. . . . He was talking 

about taking over Southbridge. I shot him.”18

Coursey was not the only person to whom Ray allegedly admitted that he had 

shot Melancon. In the days following the Melancon homicide—“[l]ike a week or a 

couple a days after”19—Jonda Tann saw Ray at a local store. Concerned about a 

rumor that her son Brandon “had something to do with”20 Melancon’s death, she 

asked Ray if he knew if that was true. Ray responded that he and Lee were 

“supposed to rob”21 Melancon and that they shot him. Although Tann was 

interviewed by police approximately one month after Melancon’s death, she did not 

report Ray’s admission until September 2014—more than two years later. 

18 Id. at A229. On cross-examination, Coursey acknowledged that, when he was questioned by 

the police in early June 2012—two and a half weeks after the shooting—he did not tell them of his 

encounter with Ray at the gas station or Ray’s admission. On that occasion, he did, however, 

identify Lee and Ray as the two individuals, both wearing black hoods, he saw running from the 

scene.

19 Id. at A396.

20 Id.

21 Id.
10

Approximately three months after Tann’s belated account and one month before 

trial, the State dismissed a felony charge that was pending against her. The State 

provided Ray a copy of the recording in which she recounted Ray’s admission but 

did not disclose, before trial, the pendency and subsequent dismissal of Tann’s 

felony charge.

Detective Michael Gifford, who headed up the Wilmington Police 

Department’s homicide investigation, interviewed Ray in late June 2012. Before 

Detective Gifford identified his reasons for interviewing Ray, Ray volunteered that 

he knew what Gifford wished to discuss; he knew because “1001 people” had 

already approached him and asked: “Did you shoot that boy?”22 Ray then claimed

that he was at his mother’s house when Melancon was shot. Not only did Ray say 

that he knew who the shooter was, but he also offered to arrange a meeting with the 

shooter “with the murder weapon,”23 which he described as a .38 special. At first, 

Ray’s identification of the shooter was vague but, in due course, he provided his 

name—Darren Lamotte. Ray also offered that Lamotte was living with his girlfriend 

on South Claymont Street. Armed with this information, the police obtained a search 

warrant for the South Claymont Street residence. Upon execution of the warrant, 

the police recovered a .38 caliber firearm.

22 State’s Ex. 35.

23 Id. 
11

The State also introduced evidence of Ray’s attempt to recruit witnesses to 

testify falsely on his behalf. Included in this evidence was a letter Ray sent to a 

friend asking her to appear at trial and to testify that she was with Ray in the area 

and at the time of the shooting. Ray asked the friend “to say that story,”24 which was 

that she and another friend were with Ray when they heard gunshots and observed 

“two tall boys”—Ray is short and stocky, while Lee and Brandon Tann are much 

taller—“running with hoods up.”25 At trial, the friend depicted Ray’s “story” as 

“[m]e basically lying for him.”26

The Deputy Chief Medical Examiner, Dr. Adrienne Sekula Perlman,

determined that multiple gunshot wounds caused Melancon’s death. During her 

autopsy, Dr. Sekula Perlman noted three penetrating gunshot wounds in Melancon’s 

back, two on his left upper back and one on the right side of his lower back. She 

recovered bullets from each of the three locations. One of the bullets found in 

Melancon’s upper back was a “small size, gray metal bullet,”27 while each of the 

other two recovered bullets was described as “large size, gray metal, 

[and] . . . deformed.”28 The Delaware State Police firearms-and-tool-mark examiner 

opined that the larger bullets were either .38 or .357 bullets, and the smaller one was 

24 App. to Opening Br. at A499.

25 Id.

26 Id.

27 State’s Ex. 23 at 3.

28 Id. at 3–4. The large bullet found in Melancon’s left upper back was “slightly deformed”; the 

other large bullet was “deformed.”
12

a .22 caliber bullet. Because of the damage suffered by the larger bullets, he could 

not conclude that they had been fired from the .38 revolver that the police recovered 

during the search of Darren Lamotte’s residence. 

B

Relying on this evidence, the State presented its theory of the case to the jury 

in simple and direct terms:

Reuel Ray was out with a .38-caliber black revolver handgun. He was 

on the hunt. He was on the hunt for bail money to bail his brother 

Richard Ray out of jail. He was out in Southbridge armed, ready. He 

recruited the logical, natural choice Tyare Lee, identified their target, 

approached their targets, pulled guns on their target. Tyare shoots once. 

[The robbery] has gone wrong at that point.

At that point, [Ray] decides to finish the job Tyare Lee accidentally 

started. He fired bullet, after bullet, after bullet, into the back of a 

fleeing man as he is trying to get away.29

By contrast, in its effort to sow reasonable doubt in the jurors’ minds, the 

defense mounted a multi-pronged attack on the prosecution’s evidence. First, the 

defense discounted the significance of Ray’s telephone conversations with his 

imprisoned brother on the date of the homicide as well as his apparent efforts to 

solicit false testimony as he prepared for trial. The police and prosecution, according 

to Ray, misinterpreted the recorded phone conversations, and Ray’s solicitation of 

false testimony, admitted to by Ray’s counsel, was the product of Ray’s poor 

judgment and frustration with the likely non-appearance of real witnesses who 

29 App. to Opening Br. at A512–13.
13

would otherwise have offered testimony favorable to Ray. The defense attempted 

to bolster his challenge to the meaningfulness of Ray’s post-homicide conduct and 

comments by arguing that his direction of the police to the murder weapon pointed 

to Ray’s innocence rather than to his guilt.

The defense then asked the jury to consider the absence of physical evidence 

linking Ray to the shooting, placing special emphasis on the apparent absence of 

Ray’s DNA on the recovered .38 caliber firearm. In fact, the defense went so far as 

to suggest that the absence of DNA “exclude[d] Reuel Ray from being the 

shooter.”30

But the dominant theme of the defense’s argument to the jury was that, for a 

variety of reasons, the testimony of Anthony Coursey, Jonda Tann, and—most of 

all—Tyare Lee was unworthy of belief. Coursey, Ray argued, was a marijuanaaddled drug dealer whose testimony was contrived to secure a reduction in drug 

charges he was facing. Jonda Tann was lying to protect her son Brandon. And Lee 

was unreliable because, as Ray’s counsel put it bluntly: “He just lies.”31 Lee’s 

propensity to fabricate was intensified, according to Ray, by his desire to avoid a life 

sentence—a goal accomplished by testifying for the prosecution and against Ray—

30 Id. at A524.

31 Id. at A526.
14

and his fear of Brandon Tann. Ray closed by positing that it was Brandon Tann—

and not he—who joined Lee in the shooting of Craig Melancon.32

C

As the prosecution’s presentation of evidence neared its conclusion, the court 

convened a prayer conference to consider draft jury instructions as prepared and 

previously circulated by the court. The draft instructions were not made part of the 

record in the Superior Court, but our review of the prayer-conference transcript leads 

us to conclude that, at the conference, there was no substantive discussion of the 

draft jury instruction on felony murder, as charged under Count IV of the 

indictment.33

The felony-murder instruction as read to the jury before its deliberation stated, 

in pertinent part, that:

32 This theory does not account for the testimony of Marla Johnson that one of the two hooded 

individuals she saw running from the scene was “short and stubby,” id. at A214, a description that 

fits Ray (5’7”, 195 pounds) but not Lee (6’0”, 145 pounds) or Tann (6’3”, 187 pounds).

33 Id. at A419:

[THE COURT:] Next one technically would be the second murder charge. Count IV. I 

would put that after -- I would put that right after the Count I. I would go out of order.

[DEFENSE COUNSEL]: I understand.

THE COURT: Felony murder, that brings us to this document that I handed to you. This 

would be as to Count IV, under Delaware law, a person is guilty of Murder First Degree 

when in the course of committing a felony. So let’s go back to the first murder one. See 

if there is anything that is duplicative. One is intentional, one is reckless.

[THE STATE]: I don’t think there’s any overlap.

THE COURT: This gets added where I put it, after the first murder is the second murder.

After this exchange, the court and counsel moved on to other topics.
15

As to Count 4, under Delaware law, a person is guilty of Murder 

in the First Degree, when, in the course of and in the furtherance of the 

commission or attempted commission of any felony . . . or immediate 

flight therefrom, that person recklessly causes the death of another 

person.

In other words, in order to find the defendant guilty of Murder in 

the First Degree, you must find that each of the following three 

elements has been established beyond a reasonable doubt:

First, the defendant caused Craig Melancon’s death; and

Second, the defendant acted recklessly; and

Third, Craig Melancon’s death occurred in the course of and in 

furtherance of the defendant’s commission of a felony.

In order to prove that the defendant “caused” Craig Melancon’s 

death, the State must establish that Craig Melancon would not have died 

but for the defendant’s conduct. . . .

“In the course of” means that Craig Melancon’s death occurred 

during the defendant’s commission of a felony. “In furtherance of” 

means that Craig Melancon’s death was caused by the defendant or his 

accomplice, who committed a felony. The State does not have to prove 

that the defendant or his accomplice caused Craig Melancon’s death for 

the purpose of committing a felony. If, after considering all the 

evidence, you find that the State has established beyond a reasonable 

doubt that the defendant acted in such a manner as to satisfy all of the 

elements that I have just stated, on or about the date and at the place 

stated in the indictment, you should find the defendant guilty of Murder 

in the First Degree. If you find that the State has not proved every 

element of the offense beyond a reasonable doubt, then you must find 

the defendant not guilty of Murder in the First Degree.34

The substance of this instruction conformed generally with the then-extant 

Delaware Pattern Criminal Jury Instruction 11.636(a)(2), entitled “MURDER IN 

THE FIRST DEGREE [FELONY MURDER].” But the pattern instruction was 

34 App. to Opening Br. at A457–58 (emphasis added); see also id. at A534.
16

based on the text of 11 Del. C. § 636(a)(2) as it existed before the Delaware General 

Assembly amended the felony-murder statute in 2004. Before that amendment, the 

statute provided that “[a] person is guilty of murder in the first degree when . . . in 

the course of and furtherance of the commission or attempted commission of a 

felony, the person recklessly causes the death of another person.”

35

In response to a 2003 decision of this Court,36 the General Assembly amended 

Section 636(a)(2) to provide that “[a] person is guilty of murder in the first degree 

when[,] . . . [w]hile engaged in the commission or attempt to commit, or flight after 

committing or attempting to commit any felony, the person recklessly causes the 

death of another person.”37 Thus, to prove felony murder in the first degree under 

post-2004 Section 636(a)(2), no longer must the prosecution prove that the reckless 

killing was “in furtherance of” the underlying felony.

Although the Superior Court’s felony-murder instruction is central to Ray’s 

present claim for post-conviction relief, the instruction flew under the radar at trial. 

35 11 Del. C. § 636(a)(2) (emphasis added); 2004 Del. Laws Ch. 246 (S.B. 238) (“This Act updates 

the language used to define the crimes of felony murder in the Delaware criminal code. This Act 

eliminates the phrase ‘in the course of and in furtherance of’ a felony that currently appears in 

Delaware’s felony murder statutes. This language is used in the felony murder statutes of only a 

few other states. The Act will instead adopt language defining felony murder which is similar to 

the language used by thirty-eight other states, and which is already used in the felony murder 

provisions of Delaware’s death penalty statute.”). 

36 In Williams v. State, this Court held that the statute’s requirement that, to qualify as felony 

murder, the reckless killing must be “in the course of and in furtherance of the commission or 

attempted commission of a felony,” meant two things: “that the murder occur during the felony 

and that the murder occur to help move the felony forward.” 818 A.2d 906, 911–12 (Del. 2003)

(emphasis added).

37 11 Del. C. § 636(a)(2) (emphasis added).
17

Neither the prosecution nor the defense objected to the court’s incorrect recitation 

of the elements of felony murder or the arguably troublesome references to 

accomplice liability. When the court asked Ray’s lawyer who attended the prayer 

conference at which the proposed jury instructions were vetted and represented Ray 

on direct appeal to “file [an] affidavit[] pursuant to Rule 61(g) in regard to [Ray’s 

postconviction relief] claims,”38 he responded:

Counsel acknowledges that the felony-murder instruction tracked the 

pre-2004 language and that no instruction on accomplice liability was 

sought or given. The felony-murder instruction given was derived from 

the criminal pattern instructions published and maintained by the 

Superior Court. Counsel’s reliance upon the instruction was, evidently,

misplaced.39

Counsel’s affidavit does not address the failure to raise this issue on direct appeal. 

D

The jury was asked to consider Ray’s responsibility for the homicide of 

Melancon under two alternative theories. Under Count I of the indictment, Ray was 

charged with murder in the first degree for intentionally causing Melancon’s death, 

while under Count IV he was charged with murder in the first degree for recklessly 

causing Melancon’s death while engaged in the commission of, or attempt to 

commit, robbery in the first degree, i.e., felony murder. The State also charged Ray 

with conspiracy in the second degree, alleging, among other things, that he had 

38 App. to Opening Br. at A26.

39 Id. at A762–63.
18

agreed with Tyare Lee to rob Melancon. The jury acquitted Ray of intentional 

murder but convicted him of felony murder, two counts of possession of a firearm 

during the commission of felony murder, conspiracy in the second degree, attempted 

robbery, two counts of possession of a firearm during the commission of attempted 

robbery, and two counts of criminal solicitation in the second degree.40 

After the Superior Court sentenced Ray to life in prison (mandated by statute) 

for felony murder and twenty additional years for the other convictions, he appealed 

to this Court. Represented by one of the two lawyers who represented him at trial, 

Ray raised two issues on direct appeal, neither of which questioned the propriety of 

the trial court’s felony-murder instruction. As mentioned at the outset of this 

opinion, this Court affirmed Ray’s convictions. 

In a timely filed motion for postconviction relief under Superior Court 

Criminal Rule 61, Ray has mounted a collateral attack on his convictions, 

challenging the adequacy of his counsel’s representation during trial and on direct 

appeal. More specifically, Ray claims that his lawyers, in violation of prevailing 

professional norms, failed to ensure that the trial court’s jury instruction related to 

felony murder accurately stated the relevant law and also neglected to raise this 

inaccuracy on direct appeal. According to Ray, had his counsel alerted this Court 

40 At Ray’s sentencing hearing, the State entered a nolle prosequi on two of the four firearm 

charges. 
19

on direct appeal to the trial court’s flawed instruction, we would have reversed his 

convictions and ordered a new trial. He now claims that such relief is appropriate 

under Rule 61. 

The State concedes that the Superior Court’s felony-murder instruction was 

“outdated,”41 but argues that it was nevertheless “more than sufficient to correctly 

guide the jury”42 in its consideration of the elements—and the adequacy of the 

prosecution’s proof—of felony murder. Not surprisingly, the State’s argument does 

not seek to justify counsel’s failure to notice and object to the flawed instruction but, 

instead, urges us to conclude that the trial court’s and trial counsel’s missteps should 

not undermine our confidence in the outcome of Ray’s trial. 

Ray also contends that the Superior Court erred when it concluded that the 

State did not violate Brady by failing to disclose that Jonda Tann’s pending felony 

charge had been dismissed after she gave her statement to police implicating Ray in 

Melancon’s murder. The State concedes that it should have disclosed the dismissal 

of the charge against Tann to the defense, but counters that the Superior Court’s 

denial of this claim was correct in light of “the State’s other, independent evidence[, 

which] overwhelmingly established Ray’s guilt.”43

41 Answering Br. at 35. 

42 Id. at 26. 

43 Opening Br. at 3.
20

II

This Court reviews ineffective-assistance-of-counsel claims de novo.

44

 The 

analytical framework under which we review such claims was established by the 

United States Supreme Court in Strickland v. Washington and, at its most basic level, 

is reducible to two steps.45 “[T]o establish that his Sixth Amendment right to 

effective assistance of counsel was violated, [a postconviction relief movant] must 

show, first, that his counsel’s representation fell below an objective standard of 

reasonableness and, second, that the deficiencies in counsel’s performance caused 

him substantial prejudice.”46 

A

It is beyond dispute that the Superior Court’s felony-murder instruction did 

not reflect the 2004 amendment of the felony murder statute. But the court’s 

departure from the current statutory text is not Ray’s only objection to the 

instruction. He also points out that the court’s explanation of the “in furtherance of” 

element—to repeat, at the time of Ray’s trial, no longer a component of felony 

murder under Section 636(a)(2)—interjected the notion of accomplice liability into 

the jury’s consideration of Ray’s guilt. This is particularly problematic, according 

44 Starling v. State, 130 A.3d 316, 325 (Del. 2015) (citing Ploof v. State, 75 A.3d 811, 820 (Del. 

2013)). 

45 Strickland v. Washington, 466 U.S. 668 (1984). 

46 Green v. State, 238 A.3d 160, 174 (Del. 2020).
21

to Ray, because when the prosecutor asked the court, albeit after the parties’ closing 

argument, to give a standard accomplice-liability instruction,47 the court refused, 

finding that accomplice liability “wasn’t argued, wasn’t presented, [and] there is no 

record evidence of it . . . .”48

What is more, although the Court did not give an accomplice-liability 

instruction defining the contours of one’s criminal liability for the conduct of another 

actor, it did provide an accomplice-testimony instruction. Among other things, the 

court reminded the jury that it had heard the testimony of “an admitted participant 

in the crime”—Tyare Lee—referring to him four times as “an alleged accomplice.”49

Thus, the court’s sua sponte interjection of the potential for accomplice liability in 

the felony-murder instruction was accompanied by its identification of Lee as Ray’s 

alleged accomplice in the accomplice-testimony instruction. But neither of these 

instructions—nor any separate accomplice-liability instruction—gave the jury any 

guidance as to how it was to determine whether Lee had acted, in fact, as Ray’s 

accomplice. 

47 A typical accomplice liability instruction would track 11 Del. C. § 271, which is entitled 

“Liability for the conduct of another—Generally.” For instance, Delaware Superior Court 

Criminal Pattern Jury Instructions 4.32 provides, in pertinent part, that “[t]he defendant is guilty 

of a crime committed by another person only when, with the intent to promote, facilitate, or assist 

the commission of the crime, the defendant either: solicits, requests, commands, importunes or 

otherwise attempts to cause the other person to commit the crime; or aids, counsels, or agrees or 

attempts to aid the other person in planning or committing the crime[.]” 

48 App. to Opening Br. at A531.

49 Id. at A537. 
22

To the Superior Court’s credit, when it denied Ray’s Rule 61 motion, it 

candidly acknowledged that its felony-murder instruction was “incorrect” and “did 

not accurately reflect the most recent statutory language for Felony Murder.”50 The 

court found that “[n]either the Court nor the State nor trial counsel noticed that the 

instruction was outdated and should have been updated to reflect the changes to the 

statute.”51 The court did not, however, find that this oversight by Ray’s counsel 

constituted deficient performance under Strickland’s first prong. Instead, the court 

determined that Ray’s failure to show prejudice under Strickland’s second prong 

was fatal to his ineffective-assistance claim, regardless of the adequacy of Ray’s 

lawyer’s performance. 

B

Because, for reasons set forth later, we disagree with the Superior Court’s 

prejudice analysis, we begin our de novo review of Ray’s ineffective-assistance-ofcounsel claim with an assessment of the objective reasonableness of counsel’s 

failure to object to the incorrect felony-murder instruction. This assessment 

necessarily involves a brief discussion of the purpose of jury instructions and the 

roles that the trial court and counsel play in the instruction process.

50 Ray, 2021 WL 2012499, at *10.

51 Id. 
23

In Bullock v. State, this Court observed that:

52

The primary purpose of jury instructions is to define with substantial 

particularity the factual issues and clearly to instruct the jury as to the 

principles of law [that] they are to apply in deciding the factual issues 

presented in the case before them. A trial court must give instructions 

to a jury as required by evidence and law whether the parties request 

the instruction or not. Indeed, the trial judge is charged with the 

responsibility for instructing the jury. This is not controlled by the 

parties as their function and duty is to bring to the court’s attention the 

instructions they consider applicable and the reasons why they should 

be given.

And we have long recognized that, although a defendant is not entitled to an 

instruction of his choosing, “he does have the unqualified right to a correct statement 

of the substance of the law.”53 In the direct-appeal context, deficient jury 

instructions will provide grounds for reversal if the deficiency “undermine[s] the 

ability of the jury ‘to intelligently perform its duty in returning a verdict.’”54

Here, the court’s instructions do not pass muster under these standards. The 

trial court, the State, and the defense all concur that the felony murder instruction is 

not a correct statement of the post-2004 felony-murder statute. Moreover, the trial 

court’s decision to introduce the concept of accomplice liability carried with it the 

responsibility for explaining that concept so that the jury could intelligently consider 

52 Bullock v. State, 775 A.2d 1043, 1047 (Del. 2001) (quotation marks, footnotes, and brackets 

omitted) (quoting Zimmerman v. State, 565 A.2d 887, 890–91 (Del. 1981) and United States v. 

Cooper, 812 F.2d 1283, 1286 (10th Cir. 1987)). 

53 Flamer v. State, 490 A.2d 104, 128 (Del. 1983). 

54 Probst v. State, 547 A.2d 114 (Del. 1998) (quoting Storey v. Castner, 314 A.2d 187, 194 (Del. 

1973)). 
24

its ramifications for Ray’s guilt or innocence. Could it nevertheless be said that 

Ray’s lawyer’s failure to object to the instructions and, having thus failed, to raise 

the issue on direct appeal, met Strickland’s standard of objective reasonableness? 

We think not. 

C

When evaluating the adequacy of counsel’s representation in the face of an 

ineffective assistance of counsel claim, this Court has hewed closely to the principles 

the United States Supreme Court laid down in Strickland.

55

 As mentioned, to prevail 

on an ineffective-assistance claim, a defendant must first show that “counsel’s 

representation fell below an objective standard of reasonableness.”56 Counsel’s 

performance is entitled to a strong presumption that it was reasonable. Strickland

teaches further that “[a] fair assessment of attorney performance requires that every 

effort be made to eliminate the distorting effects of hindsight, to reconstruct the 

circumstances of counsel’s challenged conduct, and to evaluate that conduct from 

counsel’s perspective at the time.”57 The reasonableness of counsel’s challenged 

conduct must be judged on the facts of the particular case. A determination that 

defense counsel’s conduct was “the result of reasonable professional judgment” or 

55 See, e.g., State v. Flowers, 150 A.3d 276, 282 (Del. 2016); Rodriguez v. State, 109 A.3d 1075, 

1079 (Del. 2015): Somerville v. State, 703 A.2d 629, 631 (Del. 1997).

56 Strickland, 466 U.S. at 687–88.

57 Id. at 689.
25

“within the wide range of professional competent assistance” will defeat an 

ineffective-assistance claim.58

Under these principles, a lawyer’s decision to refrain from objecting to a 

faulty jury instruction or requesting a clarifying one can be perfectly reasonable if it 

is the product of reasonable professional judgment and strategic considerations. But 

that did not happen here. In the affidavits Ray’s counsel submitted in these Rule 61 

proceedings, neither of the lawyers who represented Ray at trial or on direct appeal 

claims to have noticed that the instruction was inaccurate and referred to potential 

accomplice liability. It seems obvious that, as the Superior Court found, none of the 

key actors in Ray’s trial—not the trial judge, not the prosecutors, and not the defense 

lawyers—noticed that the instruction was outdated. It is equally clear that no one 

compared the felony-murder instruction to the felony-murder count—Count IV—in 

the indictment or the text of the applicable felony-murder statute.

Thus, defense counsel did not bring their professional judgment, reasonable 

or otherwise, to bear on this issue. As a consequence of this failure and as will be 

developed more fully below, the jury instruction that would guide the jury’s 

consideration of Ray’s guilt on the felony-murder count, conviction under which 

58 Id. at 690.
26

carried the life sentence Ray is now serving, contained an incorrect statement of the 

law, a fact that a reasonably competent attorney should have recognized.

59

In addition, the instruction introduced a theory of criminal liability, i.e., 

accomplice liability, that ran contrary to the defense’s theory of the case. What is 

more, according to the trial judge, there was “no record evidence” supporting this 

theory of liability.60 It follows in our view—and on this point neither the trial court 

nor the State (except in the most conclusory fashion) effectively engaged, focusing 

instead on Strickland’s prejudice prong61—that trial counsel’s failure to object to the 

instruction was objectively unreasonable.

Likewise, it was objectively unreasonable for Ray’s counsel to forgo raising 

the deficiency of the felony-murder instruction on direct appeal. Only one of the 

two lawyers who defended Ray at trial represented him in his direct appeal to this 

Court. His affidavit does not respond to Ray’s claim that he was ineffective for not 

identifying the issue on direct appeal. We are left to assume, therefore, that just as 

counsel did not notice the instruction’s flaw during Ray’s trial, his ignorance of the 

defect persisted through Ray’s direct appeal. Put another way, counsel’s decision 

59 See Smith v. State, 991 A.2d 1169, 1174 (Del. 2010) (“A reasonably competent attorney patently 

is required to know the state of the applicable law.” (quoting Everett v. Beard, 290 F.3d 500, 509 

(3d Cir. 2002))).

60 App. to Opening Br. at A531.

61 The gist of the State’s argument regarding the adequacy of counsel’s performance was that the 

felony-murder instruction was not deficient. Therefore, according to the State, “Ray’s counsel did 

not perform deficiently by failing to request an instruction in a different form . . . .” Answering 

Br. at 29.
27

not to raise the issue on appeal was not the product of a considered judgment about 

its merit. Because the instruction was so obviously incorrect and this issue was 

clearly stronger than those Ray’s counsel actually presented on appeal, we conclude 

that Ray has overcome the presumption that his counsel was effective on appeal. 

D

As we have noted above, the Superior Court rejected Ray’s ineffective

assistance claim not because it found his lawyers’ performance to have been 

objectively reasonable but, rather, because it concluded that Ray was not prejudiced 

by the erroneous instruction at trial. The basic premise of the court’s conclusion was 

that the outdated instruction “placed a higher burden on the State to establish [Ray’s] 

guilt beyond a reasonable doubt for Felony Murder than was required by the postamendment, applicable version of the statute.”62

 Under the court’s reasoning, this 

cured both the court’s recitation of an element of felony murder that was no longer 

in the felony-murder statute and its reference to accomplice liability. This premise, 

coupled with the applicability of the plain-error review standard that would 

presumably be applied on appeal because of trial counsel’s failure to object to the 

instruction, also formed the underpinning of the Superior Court’s conclusion that 

Ray’s counsel was not ineffective on appeal. We disagree with the Superior Court’s 

prejudice analysis.

62 Ray, 2021 WL 2012499, at *10.
28

“To demonstrate prejudice caused by counsel’s ineffectiveness, a defendant 

must show that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.”63 

When the probability is such that our confidence in the proceeding’s outcome is 

undermined, we will find prejudice.64 This framework applies to our review of 

claims of ineffective assistance of counsel at trial and on appeal.65

Although we are confident that the trial court would have brought its felonymurder instruction into compliance with the operative statute upon a timely 

objection from defense counsel, we cannot say with certainty whether the court 

would have then given a proper accomplice-liability instruction, as our precedent 

requires, or if the court would have decided to strike all references to the accompliceliability theory from the instructions. The latter outcome—deletion of the 

accomplice-liability references—would have benefitted Ray’s defense. It is 

plausible that the court would have chosen that alternative given that, when the State 

requested an accomplice-liability instruction, the court responded that the theory 

“wasn’t argued, wasn’t presented, [and] there is no record evidence of it . . . .”66

Indeed, this exchange presented defense counsel with yet another opportunity that it 

63 Green, 238 A.3d at 174 (quoting Starling, 130 A.3d at 325).

64 Starling, 130 A.3d at 325 (quoting Strickland, 466 U.S. at 694).

65 Neal v. State, 80 A.3d 935, 946 (Del. 2013).

66 App. to Opening Br. at A531. 
29

did not take advantage of: counsel could have credibly argued that, according to the 

trial court’s own statements, no references to accomplice testimony or liability were 

appropriate. Succeeding on this objection would have undoubtedly been beneficial 

to Ray’s defense against the felony-murder charge, especially considering that Ray 

was charged with, and acquitted of, intentional murder. Put differently, the jury did 

not agree that Ray intentionally and singlehandedly caused Melancon’s death. For 

this reason, we are not confident that, absent the trial court’s incomplete invocation 

of accomplice liability, the jury would have unanimously agreed to convict Ray of 

felony murder.

What is more, the failure of Ray’s counsel to notice and flag the problematic 

jury instruction extended beyond Ray’s trial and into Ray’s direct appeal. We turn 

next to the effect of the failure of Ray’s appellate counsel to bring the error to this 

Court’s attention on direct appeal.

E

Because Ray’s trial counsel did not object to the flawed felony-murder 

instruction at trial, had he raised it on direct appeal, we would have reviewed the 

argument for plain error. Under that standard, “the error complained of must be so 

clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of 

the trial process.”67 Applied here, this means that Ray must show a reasonable 

67 Wainwright v. State, 504 A. 2d 1096, 1100 (Del. 1986).
30

probability that, had his appellate counsel pointed out the trial court’s mistake on 

direct appeal, he would have prevailed under the plain-error standard of review.68

The question thus framed then is whether there is a reasonable probability 

that, had this court been apprised of the fact that Ray’s felony-murder conviction 

rested on a jury instruction that, in addition to being outdated and incorrect, referred 

to potential accomplice liability without defining that concept, this Court would have 

reversed Ray’s conviction. We are confident that we would have. Ray is therefore 

entitled to postconviction relief. 

The jury instruction was likely to have an adverse effect on the jury’s 

understanding of felony murder as defined by 11 Del. C. § 636(a)(2) for several 

reasons. First—and most obviously—the instruction as actually given did not 

accurately track the elements of the offense as defined by the then-operative statute. 

Although the Superior Court attempted to play down the significance of the 

instruction’s departure from the statute and even suggested that the mistake 

redounded to Ray’s benefit, we see it differently. To be sure, telling the jury that an 

element of the offense was the causing of death “in the course of . . . the defendant’s 

commission of a felony” (the instruction as given) is close to telling the jury, in 

68 See Neal, 80 A.3d at 947 (when an argument is not preserved or raised at trial, to prevail on a 

claim of ineffective assistance of appellate counsel, “the defendant must show a reasonable 

probability that his appellate counsel would have prevailed on direct appeal under a plain error 

standard of review”).
31

accordance with the post-2004 statute, that the murder must occur “while engaged 

in” the commission, attempt to commit or flight from the commission or attempt to 

commit a felony. The trial court, indeed, instructed the jury that “‘[i]n the course 

of’ means that Craig Melancon’s death occurred during the defendant’s commission 

of a felony.”69 Thus, “in the course of” could reasonably be understood as meaning 

“while engaged in.” 

But the instruction also retained the “in furtherance of’” language from the 

pre-2004 statute and explained that “‘[i]n furtherance of’ means that Craig 

Melancon’s death was caused by the defendant or his accomplice, who committed a 

felony.”70 This explanation was incorrect even under the pre-2004 statute, under 

which “in furtherance of” was interpreted to mean that the murder must have 

facilitated commission of the felony, or “help[ed] to move the felony forward.”71 

The instruction also improperly cleared a new path to a finding that Ray was 

guilty of first-degree murder. In particular, the instruction told the jury that Ray 

69 App. to Opening Br. at A457–58 (emphasis added); see also id. at A534.

70 App. to Opening Br. at A457–58.

71 Williams, 818 A.2d at 913. The Superior Court’s instruction here appears to have been fashioned 

after Chao v. State, 604 A. 2d 1351 (Del. 1992). But, in Williams, we overruled the relevant 

portion of Chao. Williams, 818 A.2d at 913 (“To the extent that the Chao opinion states that ‘in 

furtherance of’ language of the statute addresses solely the identity of the person who is 

committing the actual killing, it is overruled. Accordingly, we . . . hold that the felony murder 

language requires not only that the defendant, or his accomplices, if any, commit the killing but 

also that the murder helps to move the felony forward.”); see also Comer v. State, 977 A.2d 334, 

339–40 (Del. 2009).
32

could be held responsible for first-degree felony murder even upon a finding that he 

had not caused Melancon’s death if it determined that his “accomplice” had done so.

This portion of the felony-murder instruction is fundamentally in conflict with 

the trial judge’s statement, when asked by the prosecution to instruct the jury on the 

principles of accomplice liability, that there was no evidentiary basis for such an 

instruction. This contradiction, standing alone, is sufficient to support our 

determination that the instruction jeopardized the fairness and integrity of Ray’s 

trial.

Not surprisingly, Ray agrees with the trial court’s conclusion that an 

accomplice-liability instruction was not supported by the record; if that conclusion 

is correct, it was unreasonable and necessarily confusing for the court to identify Lee 

as Ray’s accomplice and tell the jury that Ray was responsible for Lee’s conduct. 

But our concern over the trial judge’s references to accomplice liability is not 

dependent upon its questionable conclusion that “there [was] no record evidence” of 

a principal/accomplice relationship between Ray and Lee.72 The problem, in our 

view, with the trial court’s references to an accomplice—references that in context 

unmistakably referred to Lee—and its instruction that Ray could be found guilty if 

72 App. to Opening Br. at A531. The trial court’s conclusion appears to ignore Lee’s testimony 

from which the jury could infer that Lee aided or attempted to aid Ray in the attempted robbery of 

Melancon and Jonda Tann’s testimony that Ray had admitted to her that he and Lee intended to 

rob Melancon. It also cannot be squared with the court’s giving of an “accomplice testimony” 

instruction in which Lee was referred to, albeit indirectly, as “an alleged accomplice.” Id. at A537.
33

Ray’s accomplice caused Melancon’s death, is that the court did not instruct the jury 

on the principles relevant to accomplice liability. 

As this Court held in Johnson v. State, when a prosecution proceeds on a 

theory of accomplice liability, Sections 271 and 274 of the Delaware Criminal Code 

require the jury to apply a two-step analysis.73 “First the jury must decide whether 

the State has established that the defendant was an accomplice to a criminal offense 

committed by another person.”74 To assist the jury performing this step, the trial 

court should tell the jury what it means to act as an accomplice under Section 271.75 

As one Superior Court pattern instruction explains:

A person charged with a crime may be convicted as a principal for acts 

that the person personally committed, or as an accomplice for aiding 

the principal in committing the crime.

A person is guilty as an accomplice, that is, guilty of a crime committed 

by another person when, with the intent to promote or facilitate the 

commission of the crime, the person either solicits, requests, commands 

or otherwise attempts to aid the other person in planning or committing 

the crime: or aids, counsels, or agrees or attempts to aid the other person 

in planning or committing the crime.76

Second, if the jury finds the existence of a principal/accomplice relationship between 

two actors for an offense that is divided into degrees, as is the case for homicide,77

73 Johnson v. State, 711 A.2d 18 (Del. 1998).

74 Id. at 30.

75 Id.

76 Delaware Pattern Criminal Jury Instruction § 4.34.

77 Under the Delaware Criminal Code, the possible degrees of guilt are murder first degree, murder 

second degree, manslaughter, and criminally negligent homicide.
34

the jury must then determine what degree of the offense the defendant committed. 

This step is mandated by 11 Del. C. § 274, which provides:

When, pursuant to § 271 of this title, 2 or more persons are criminally 

liable for an offense which is divided into degrees, each person is guilty 

of an offense of such degree as is compatible with that person’s own 

culpable mental state and with that person’s own accountability for an 

aggravating fact or circumstance.

In Johnson, we stressed that this second step must be based on “an 

individualized determination of the defendant’s mental state and culpability for any 

aggravating factor or circumstances.”78 Here, the Superior Court did not spell out 

these principles for the jury’s consideration. By failing to do so, the court 

undermined the jury’s ability to intelligently decide factual issues that, according to 

the court’s felony-murder instruction, could form a predicate of a felony-murder 

conviction. This further shakes our confidence in the fairness and integrity of Ray’s 

trial and reinforces our conclusion that, had Ray’s appellate counsel raised this issue 

on direct appeal, we would have found plain error and reversed Ray’s felony-murder 

conviction and, along with it, the conviction for possession of a firearm during the 

commission of felony murder. Hence, Ray has demonstrated that he is entitled to 

postconviction relief as to that conviction.

78 Johnson, 711 A.2d at 30 (emphasis in original).
35

III

Because the erroneous felony-murder instruction was unlikely to have 

affected the jury’s consideration of the remaining counts of the indictment, we must 

also address Ray’s Brady claim. “We review questions of law and constitutional 

claims, such as claims based on the State’s failure to disclose exculpatory or 

impeaching evidence, de novo.”79

A

Under Brady and its progeny, the prosecution in criminal proceedings “has a 

constitutional obligation to disclose exculpatory and impeachment evidence within 

its possession to the defense when that evidence might be material to the outcome 

of the case.”80 The Brady rule is violated when “(1) evidence exists that is favorable 

to the accused, because it is either exculpatory or impeaching; (2) that evidence is 

suppressed by the state; and (3) its suppression prejudices the defendant.”81 And 

this Court has held that 

[i]n order for the State to discharge its responsibility under Brady, the 

prosecutor must disclose all relevant information obtained by the police 

or others in the Attorney General’s Office to the defense. That entails 

a duty on the part of the individual prosecutor to ‘learn of any favorable 

evidence known to the others acting on the government’s behalf in the 

case, including the police.’

82

79 Risper v. State, 250 A.3d 76, 87 (Del. 2021).

80 Brady, 373 U.S. at 91. 

81 Starling, 882 A.2d at 756 (citing Strickler v. Greene, 527 U.S. 263, 281–82 (1999)).

82 Wright v. State, 91 A.3d 972, 988 (Del. 2014) (quoting Kyles v. Whitley, 514 U.S. 419, 438 

(1995)).
36

Here, the State, in effect, concedes that it should have disclosed to the defense 

that one of its witnesses benefited from the State’s dismissal of charges against her 

shortly before Ray’s trial. Instead, like the Superior Court, the State focuses on 

Ray’s inability to demonstrate that he suffered prejudice as a consequence of the 

non-disclosure.83 We therefore train our attention on the materiality of the withheld 

evidence to Ray’s trial.

B

In the Brady context, to demonstrate prejudice or materiality, “the defendant 

must show that the State’s evidence creates a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the proceeding would have been 

different.”84 Such a reasonable probability exists when the withholding of 

exculpatory or impeaching evidence undermines confidence in the outcome of the 

trial.85

83 Answering Br. at 11 (“[T]he State has an obligation to disclose whenever it reduces charges 

against one of its witnesses. In this case, the Superior Court found that the State did not disclose 

to Ray that it had dismissed the charges against Tann. The suppression of such impeachment 

evidence, even if inadvertent, might establish both cause under Rule 61(i)(3) and the first two 

elements of Brady.” (footnotes omitted)).

84 Wright, 91 A.3d at 988 (emphasis in original) (quoting Starling, 882 A.2d at 756).

85 Id.; see also Kyles, 514 U.S. at 434 (“The question is not whether the defendant would more 

likely than not have received a different verdict with the evidence, but whether in its absence he 

received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”).
37

C

The principal theme of Ray’s prejudice argument is that the defense’s crossexamination of Tyare Lee and Anthony Coursey was so effective as to make the 

acceptance of Jonda Tann’s testimony essential to the jury’s guilty verdicts. 

According to Ray, the withholding of evidence with impeachment value—that Tann 

was the beneficiary of favorable treatment by the State and therefore biased in its 

favor—drastically undermined Ray’s ability to persuade the jury that Tann should 

not be believed. Ray also argues that the Superior Court applied a legally incorrect 

materiality analysis, that is, that the court applied a “sufficiency of the evidence” test 

rather than the materiality test we have described above. We disagree with Ray on 

both counts.

Ray’s first argument depends on the premise that Lee and Coursey were so 

lacking in credibility that the jury’s verdict must have hinged on its acceptance of 

Tann’s testimony that Ray had told her that he and Lee intended to rob Melancon

and shot him. It also assumes that, had the jury known that Tann’s felony charge 

was dismissed one month before Ray’s trial, it would have rejected her testimony as 

the product of bias. It is reasonably probable, according to Ray, that the jury in turn 

would have rejected the eyewitness testimony of Lee, Coursey, and Marla Johnson, 

ignored the recorded phone calls between Ray and his brother and his efforts to 
38

solicit false testimony, and disregarded Ray’s connection to the .38 revolver, which 

he himself described as the murder weapon. 

In the first place, we do not accept Ray’s conclusion that Lee’s and Coursey’s 

testimony was so unreliable as to render it a nullity. To be sure, defense counsel 

mounted an effective cross-examination of both and argued to the jury why their 

testimony, self-serving and arguably inconsistent as it was, should be rejected. But 

Lee’s testimony lined up accurately with Marla Johnson’s testimony and the forensic 

evidence. And though defense counsel’s cross-examination of Coursey was 

effective, exposing that his initial statement to police omitted Ray’s admission and 

that he had received a plea bargain on drug charges before testifying, it was hardly 

devastating. In sum, we cannot conclude on the record before us that it is reasonably 

probable that, had the evidence of the dismissal of Tann’s felony charge been 

disclosed to the defense and then put before the jury, the result of Ray’s trial would 

have been different.

We also disagree with Ray’s contention that, in rejecting his Brady claim, the 

Superior Court applied a “sufficiency of the evidence” test rather than the correct 

Brady materiality standard. It is the case that the Superior Court considered the 

strength of the State’s case and it is implicit that it did so in relation to evidence 

independent of Jonda Tann’s testimony. It found that evidence “extensive”86 and 

86 Ray, 2021 WL 2012499, at *6.
39

“overwhelming.”87 That is not a “sufficiency of the evidence” test, which typically 

determines whether evidence, viewed in a light most favorable to the prosecution, 

is sufficient to demonstrate to a reasonable factfinder that the defendant is guilty 

beyond a reasonable doubt.88 Ray’s contention on this point is without merit.

IV

Our consideration of Ray’s claims has yielded mixed results—a reversal of 

the Superior Court’s denial of postconviction relief from Ray’s felony-murder 

conviction and the attendant firearm convictions while affirming his other 

convictions. The Superior Court’s felony-murder jury instruction was so flawed that 

it would have warranted a reversal of Ray’s felony-murder conviction had the issue 

been flagged on direct appeal even under the plain error standard of review. We are 

confident that a majority of this Court would not have placed its stamp of approval 

on a conviction—much less one that condemns the defendant to life in prison—that 

rests on a jury instruction that misstates the elements of the crime of conviction in a 

material way and introduces a theory of liability without explaining that theory to 

the jury. 

87 Id. at *7.

88 Williamson v. State, 113 A.2d 155, 158 (Del. 2015) (the standard of review of the sufficiency of 

evidence in a criminal case is “whether any rational trier of fact, viewing the evidence in the light 

most favorable to the State, could find [a] defendant guilty beyond a reasonable doubt.” (quoting 

Monroe v. State, 652 A.2d 560, 563 (Del. 1995) (emphasis in original)).
40

To be clear, however, we do not hold that it is reasonably probable that, had 

Ray’s jury been properly instructed, he would have been acquitted of felony murder. 

As our recitation of the prosecution’s case and our treatment of Ray’s Brady claim 

should suggest, the evidence against Ray was sufficient to support a conviction for 

felony murder beyond a reasonable doubt by a well instructed jury. But all persons 

who stand accused of crime, even—and perhaps especially—those against whom 

the evidence is strong, have the right to effective representation before a jury guided 

by a correct statement of the law. Because Ray was deprived of that right, his request 

for relief from his felony-murder conviction and the related firearm conviction

should have been granted. Yet because we are satisfied that the erroneous instruction 

did not infect the jury’s consideration of the counts other than felony murder and 

that Ray was not prejudiced by the State’s non-disclosure as discussed above, we 

remain confident in the jury’s verdicts on those counts.

For these reasons, we reverse in part the Superior Court’s denial of Ray’s 

motion for postconviction relief, vacate his convictions for felony murder (Count 

IV) and possession of a firearm during the commission of felony murder (Count V) 

and remand for a new trial on those counts. We affirm the Superior Court’s 

judgment as to Ray’s other convictions.
41

VAUGHN, Justice, concurring in part and dissenting in part:

I concur in the Majority’s rejection of the defendant’s Brady claim. I dissent 

because I believe the defendant has failed to establish prejudice from the use of the 

obsolete felony-murder instruction.

The old, pre-amendment instruction informed the jury that in order to find the 

defendant guilty of felony-murder, it must find that the State had established three 

elements beyond a reasonable doubt: (1) that the defendant caused the death of Craig 

Melancon; (2) that the defendant acted recklessly; and (3) that the victim’s death 

occurred in the course of and in furtherance of the defendant’s commission of a 

felony.

If the current, correct version of the instruction had been given, it would have 

instructed the jury that in order to find the defendant guilty of felony-murder, it must 

find that the State had established the following three elements beyond a reasonable 

doubt: (1) that the defendant caused the death of Craig Melancon; (2) that the 

defendant acted recklessly; and (3) that the defendant caused the victim’s death 

while engaged in the commission of a felony.

The change in the third element—from “in the course of and in furtherance of 

the defendant’s commission of a felony” to “while engaged in the commission of a 

felony”—was brought on by this Court’s decision in Williams v. State.

89

 In that case, 

89 818 A.2d 906 (Del. 2003).
42

this Court held that the phrase, “in the course of and in furtherance of” the 

commission of a felony “requires not only that the defendant, or his accomplices, if 

any, commit the killing but also that the murder helps to move the felony forward.”90 

The synopsis of the 2004 amendment to the felony-murder statute cited Williams

with disapproval and rejected the Williams requirement that the evidence show that 

the killing facilitated the underlying felony or helped move it forward. The new 

language, “while engaged in the commission of a felony,” the synopsis explained, 

meant “only that the killing must be directly associated with the predicate felony as 

one continuous occurrence.”91 The Superior Court in this case found that the preamendment language, requiring that the victim’s death occur “in the course of and 

in furtherance of” the commission of the felony, placed a “higher burden”92 of 

establishing guilt on the State than the post-amendment version, which requires only 

that the defendant caused the victim’s death “while engaged” in the commission of 

the felony. I agree with the Superior Court’s finding on that point. I think that the 

jury’s finding that the defendant caused the victim’s death “in the course of and in 

furtherance of” the felony necessarily means that the jury was convinced that the 

defendant caused the victim’s death “while engaged” in the commission of the 

90 Id. at 913. 

91 Comer v. State, 977 A.2d 334, 338 (Del. 2009) (quoting the synopsis of the bill amending the 

felony-murder statute). 

92 Opening Br. Ex. A at 28. 
43

felony. There is ample evidence in the record to support this conclusion. Therefore, 

as regrettable as it is that the trial judge gave the old instruction, I do not see that in 

this case it caused the defendant any prejudice as required by Strickland.

The defendant also contends that the instruction allowed the jury to decide the 

case on an accomplice liability theory without an accomplice liability instruction. 

This contention is based upon the reference to an accomplice in two sentences in the 

instruction. Those sentences read: “‘In furtherance of’ means that Craig Melancon’s 

death was caused by the defendant, or his accomplice, who committed a felony. The 

State does not have to prove that the defendant or his accomplice caused Craig 

Melancon’s death for the purpose of committing a felony.”93

The instruction also informed the jury that in order to find the defendant 

guilty, it “must find that each” of the three elements of the offense was established 

beyond a reasonable doubt. The first element was that “the defendant caused the 

death of Craig Melancon.” The instruction further informed the jury that “In order 

to prove that the defendant caused Craig Melancon’s death, the State must establish 

that Craig Melancon would not have died but for the defendant’s conduct.”94 The 

jury’s verdict of guilty means that the jury found that this first element was 

established beyond a reasonable doubt, which means that the jury found that the 

93 App. to Opening Br. at A534.

94 Id.
44

defendant, by his conduct, caused the death of the victim.

The jury was not given an accomplice liability instruction that would have 

allowed it to find that the first element of the felony-murder instruction could be 

satisfied on an accomplice liability basis. The accomplice testimony instruction 

gave the jury information to assist the jury in assessing the co-felon’s testimony, but 

it did not inject an accomplice liability theory into the case. 

The two references to an accomplice in the felony-murder instruction appear 

in a part of the instruction that explains the meaning of “in the course of” and “in 

furtherance of.” Those sentences do not refer to the first element and do not appear 

to bear on or qualify the first element. They do not inform the jury that death caused 

by the accomplice could satisfy the first element of the offense. Nothing in the 

instructions informs the jury that the first element can be satisfied by anything other 

than the defendant’s own conduct. 

Having been instructed that it must find that each element of the offense was 

established beyond a reasonable doubt in order to find the defendant guilty, the jury, 

following the instructions as it is presumed to do, would have considered each 

element and determined whether each element was satisfied. I think the jury’s 

finding on the first element, that the defendant, by his conduct, caused the death of 

Craig Melancon, must be interpreted as meaning that the jury found that the 

defendant fired the fatal shots. I would find that the references to the death being 
45

caused by an accomplice are in connection with the third element only and are 

harmless error beyond a reasonable doubt, given the jury’s finding on the first 

element.

Whether this Court, as composed at the time of the defendant’s direct appeal, 

would have reversed the defendant’s conviction on a plain error analysis of the 

instruction, had the problems with the instruction been raised on appeal, is 

speculation. Based on the facts presented, there is no way to know how the Court 

would have responded to the arguments the parties would have made in that 

proceeding.

I would affirm the judgment of the Superior Court.