IN THE SUPREME COURT OF THE STATE OF DELAWARE

DERRICK POWELL,

Defendant Below, 

Appellant,

v.

STATE OF DELAWARE,

Plaintiff Below, 

Appellee.

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No. 310, 2016

Court Below–Superior Court of 

the State of Delaware

Cr. ID No. 0909000858 (S) 

Submitted: September 20, 2017

 Decided: October 27, 2017

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

O R D E R

On this 27th day of October 2017, upon consideration of the parties’ briefs, 

oral argument, and the record on appeal, it appears that:

(1) The Appellant, Derrick Powell, was convicted of First Degree Murder 

and related crimes for recklessly causing the death of Officer Chad Spicer. He 

appeals from the Superior Court’s denial of his Motion for Post-Conviction Relief. 

He first claims that the Superior Court erred by finding that the State did not commit 

a Brady violation when it failed to disclose an eyewitness to the crimes until after 

the close of the evidence at trial. He also claims that appellate counsel was 
2

ineffective for failing to raise the Brady issue on direct appeal. We find these 

claims to be without merit and affirm.

(2) Powell and two co-conspirators attempted to commit a robbery in the 

parking lot of a McDonald’s restaurant in Georgetown, Delaware. The attempt was 

unsuccessful, and they fled the scene in a Chrysler Sebring vehicle. Christopher 

Reeves was driving the Sebring. Derrick Powell was in the rear seat behind the 

driver. Luis Flores was in the rear seat behind the empty front passenger seat. 

Soon a police car occupied by Georgetown officers Spicer and Shawn Brittingham

attempted to pull the Sebring over. After a short pursuit, Reeves brought his 

vehicle to an abrupt stop and opened his driver’s car door. The police car struck the 

open driver’s door and came to a stop. Reeves got out of his car, slid across the 

hood of the police car, and fled. Officer Brittingham pursued him on foot. 

Moments later, Officer Brittingham heard a gunshot. Flores testified that Powell 

fired a handgun at the stopped police car. The shot struck and killed Officer Spicer. 

Eyewitnesses testified that a person fitting Powell’s description exited the Sebring 

immediately after the shot was fired, holding a gun. They testified that the person 

then fled. All agreed on the direction in which he fled. They did not all agree on 

which door of the vehicle he exited, but all agreed it was not the driver’s door. 

Flores remained at the scene and tried to help Officer Spicer out of the police car. 
3

About 20 minutes later, Powell was found with the murder weapon and taken into 

custody.

(3) At trial defense counsel argued there was reasonable doubt as to 

whether Powell was the shooter and that the evidence demonstrated that it was more 

likely that Flores was the shooter. There was some testimony that the person 

carrying the gun got out through the rear passenger side of the Sebring and that 

Flores then also exited through the passenger side. Defense counsel argued that it 

was implausible to think that Powell shot from the driver’s side and then climbed 

over Flores, who weighed about 300 pounds, to exit on the passenger side, 

suggesting that Flores had been the one on the driver’s side. The defense also relied 

on other evidence, including DNA evidence from a defense expert which indicated

that Flores was probably a major contributor of DNA on the trigger of the gun, and 

Reeves and Powell were possibly minor contributors.

(4) Opening statements at Powell’s trial were delivered on January 20, 

2011. On Friday, January 28, Lieutenant Robert Hudson, an investigating police 

officer, was contacted by a previously unknown witness named Damian Coleman. 

Lieutenant Hudson interviewed Coleman on Sunday, January 30. Coleman stated 

that he was seated on the porch of a house when a car being chased by police went 

by. The cars stopped and the driver had trouble getting out and had to jump over 
4

the police car to escape. He then saw a light skinned black man get out of the 

passenger side, point a gun over the car at the police car, and then run off behind a 

blue house. After he saw the man with the gun, Coleman went into his house and 

called 911. Lieutenant Hudson took notes and on February 2 prepared a 

supplemental police report.

(5) The defense rested and the evidence closed on February 3, 2011. The 

State first disclosed Coleman’s existence to Powell’s trial attorneys on February 4, 

2011. On Monday, February 7, trial counsel disclosed the recent discovery of 

Coleman to the trial judge during an office conference. The trial judge ordered that 

the State bring Coleman to the courthouse so that defense counsel could interview 

him, and stated that he would allow the defense to reopen its case if defense counsel 

wanted to present testimony from Coleman. After interviewing Coleman, defense 

counsel elected not to call him as a witness. Closing arguments then followed.

(6) This Court reviews the Superior Court’s decision on a motion for postconviction relief for an abuse of discretion.1

 Questions of law and constitutional 

claims are reviewed de novo.

2

 

 

1 Zebroski v. State, 12 A.3d 115, 119 (Del. 2010).

2

Id.
5

(7) A Brady violation occurs where there exists “suppression by the 

prosecution of evidence favorable to an accused . . . [that] violates due process where 

the evidence is material either to guilt or to punishment, irrespective of the good 

faith or bad faith of the prosecution.” 3 There are three elements to a Brady 

violation: “(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.”4

(8) In denying Powell’s Brady claim, the Superior Court first noted that the 

claim was not technically a Brady claim because the potential evidence was not 

suppressed. The court further reasoned that Coleman would have testified that a 

light skinned black male exited the vehicle, pointed a handgun over the vehicle roof 

at the police car, and then ran behind a blue house in the direction where Powell was 

found minutes later. The court further reasoned: since defense counsel decided not 

to call Coleman after interviewing him, it must be concluded that the information 

Coleman possessed was not favorable to the defense; eyewitnesses’ testimony 

differed as to which door the gun man exited; “muddying” the waters further on the 

door issue, together with additional testimony that the shooter ran in the direction 

 

3 Brady v. Maryland, 373 U.S. 83, 87 (1963).

4

Starling v. State, 882 A.2d 747, 756 (Del. 2005).
6

where Powell was captured, would not have advanced Powell’s case; defense 

counsel were justifiably concerned that Coleman may identify Powell; a reasonable 

person would have concluded that Coleman’s testimony was not only not helpful, 

but potentially harmful; and Coleman’s testimony was not valuable impeachment 

evidence, given the conflicting statements already in the record as to which door the 

shooter exited. Thus, the Superior Court reasoned that none of the three elements 

of a Brady claim had been established. We find no error in the Superior Court’s 

analysis. The same analysis leads to the conclusion that appellate counsel was not 

ineffective for not raising Coleman as an issue on appeal. The Superior Court also 

expressed its disapproval of the State’s delay in revealing Coleman and his potential 

testimony until after the defense had rested, at trial and again in its post-conviction 

relief opinion, as do we.

(9) On appeal the State also argues that Powell’s Brady claim is barred 

under Superior Court Criminal Rules 61(i)(3) and (4) as they existed at the time his 

motion was filed.5 We agree that his claim is barred by Rule 61(i)(3). Rule 

61(i)(3) bars any claim that was not asserted in the proceedings leading to the 

judgment of conviction unless the movant shows cause for relief from the procedural 

default and prejudice from a violation of the movant’s rights. In this case no Brady

 

5 Superior Court Criminal Rule 61 has been modified since Powell’s motion was filed.
7

claim was asserted at trial or on appeal. Powell’s Brady claim is barred under Rule 

61(i)(3) because his rights were not violated and he suffered no prejudice.6 

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior 

Court is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr. 

Justice

 

6 Since Powell cannot show prejudice, the narrow relief from the bar of Rule 61(i)(3) set forth in Rule 61(i)(5) has 

no effect here.