Sutton v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

DEAN SUTTON, §
§
Defendant Below, § No. 333, 2023
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. N2104001561
§
Appellee. §

Submitted: May 1, 2024
Decided: June 20, 2024

Before VALIHURA, TRAYNOR, and LEGROW, Justices.

ORDER

After consideration of the brief and motion to withdraw filed by the

appellant’s counsel under Supreme Court Rule 26(c), the State’s response, and the

Superior Court record, it appears to the Court that:

(1) On August 31, 2021, a grand jury indicted Dean Sutton for first-degree

murder, attempted first-degree murder, and two counts of possession of a firearm

during the commission of a felony (“PFDCF”). The charges arose from an incident

in which Sutton shot and killed Larry Porter and shot at Porter’s son, Breon Harmon.

During the four-day jury trial, Sutton admitted that he fired the gun but contended

that his use of force was justified. On the evening of April 2, 2021, Porter and

Harmon arrived at the Sutton family residence at 222 West 19th Street in
Wilmington to confront Sutton’s cousin, Shaun Irby, about domestic issues between

Irby and his wife. Irby’s wife was Porter’s niece, and Irby was staying at the Sutton

residence at the time. Sutton was leaving the house when Porter, whom Sutton did

not know, asked whether Irby was at home.1 Sutton went into the house to call for

Irby, and then Irby and Sutton walked outside together.2 As they exited the house,

Sutton saw Harmon, whom he also did not know, getting out of a car wearing a black

ski mask, which raised “red flags” for Sutton.3

(2) Porter and Irby engaged in a heated conversation as Sutton and Harmon

stood nearby.4 Porter was “really angry,” irate, loud, and yelling, and Sutton asked

the others to leave and “take it somewhere else.”5 The verbal confrontation turned

physical when Porter “swung on” Irby.6 Porter got the upper hand in the fight; Porter

grabbed Irby, pulled him down off the steps, punched him, and knocked him out.7

As Porter continued to punch Irby as Irby lay on the ground, Sutton tried to push

1
Appendix to Opening Brief at A460.
2
Id. at A461-62.
3
Id. at A462, A479-81. Harmon testified that he was wearing a black hat, not a ski mask. Id. at
A374-75. When asked whether Harmon was wearing a hat or mask, Irby testified that Harmon
might have been wearing a hoodie but that he did not really remember. Id. at A363. Harmon did
not appear to be wearing a mask in surveillance videos that captured some of the events of the
night at issue.
4
Id. at A369-72, A464-66, A358-59.
5
Id. at A463, A465, A385.
6
Id. at A372, A466; see also id. at A384 (Harmon testimony agreeing that Porter “took the first
swing on Mr. Irby”).
7
Id. at A466-67.

2
Porter away.8 Harmon then intervened, and Sutton and Harmon began tussling near

the cars parked in the street, as Porter continued to assault Irby.9 A neighbor

attempted to break up the fight between Sutton and Harmon, spraying them with

mace, but they continued fighting.10

(3) Sutton had a permit to carry a concealed weapon, and he had a gun that

night.11 As Harmon restrained Sutton against a car in a headlock, Porter left Irby

lying on the sidewalk and joined Harmon in the fight with Sutton.12 Sutton testified

that he believed that Porter realized that Sutton was armed and might be able to grab

the gun and use it against Sutton.13 He testified that he “feared for [his] life” because

he had “two guys jumping on [him],” he had “just seen what he did to my cousin,

beating him unconscious and continue beating him. My life was—my life was in

danger ultimately. And he had access to my weapon and what else can I do? No

other option but to defend myself.”14 Sutton took out the gun and fired at Harmon

and then at Porter.15 Harmon felt the first shot go past his beard and started running

8
Id. at A467-68, A372-73.
9
Id. at A467-68, A372-73, A383-84.
10
Id. at A372, A375, A378, A468, A490-92.
11
Id. at A470-72, A313.
12
Id. at A372-74, A468-72, A475.
13
Id.at A472-73.
14
Id. at A474.
15
Id. at A471-74.

3
away.16 Porter said “stop, stop, stop.”17 Sutton fired one more shot in Harmon’s

direction as he fled, and then turned toward Porter and fired three more shots.18

Three bullets struck Porter; he died from his injuries. Sutton then walked around the

area, retrieving some of his possessions that had fallen to the ground, before getting

into his car and driving away.19

(4) Police officers arrived on the scene in response to a “shot spotter” alert.

They found Irby injured20 and Porter shot at the scene. They collected evidence,

including ballistics evidence and several videos from surveillance cameras in the

area, including a neighbor’s front-porch Ring camera. The video evidence showed

the men talking before the physical altercation began, Porter assaulting Irby while

Irby was on the ground, Sutton and Harmon struggling between the cars, Sutton

firing the gun, Porter saying “stop,” and Harmon running down the street after the

shooting.

(5) Over the defense’s objection, the court instructed the jury on the lesser-

included offenses of second-degree murder and manslaughter as to the first-degree

16
Id. at A374-76, A481.
17
Sutton acknowledged that Porter told him to stop, though he denied having heard it at the time
because “adrenalin [was] rushing.” Id. at A494-95; see also id. at A376 (Harmon testimony that
he heard Porter say “stop” after Sutton fired the first shot).
18
Id. at A482, A497.
19
Id. at A497-98, A500-01.
20
Irby was transported to the hospital and woke up there the following day; he sustained a
concussion, several lacerations, and several broken bones in his face and around his eye. Id. at
A361-62.

4
murder charge and the lesser-included offense of first-degree reckless endangering

as to the attempted first-degree murder charge. The jury found Sutton guilty of the

lesser-included offenses of manslaughter and first-degree reckless endangering and

acquitted him of the PFDCF charges. On September 1, 2023, the Superior Court

sentenced Sutton to a total of thirty years of imprisonment, suspended after ten years

for decreasing levels of supervision.

(6) In this direct appeal, Sutton’s counsel has filed a brief and a motion to

withdraw under Supreme Court Rule 26(c). Sutton’s counsel asserts that, based

upon a conscientious review of the record, there are no arguably appealable issues.

Counsel informed Sutton of the provisions of Rule 26(c) and provided him with a

copy of the motion to withdraw and the accompanying brief. Counsel also informed

Sutton of his right to supplement counsel’s presentation. Sutton responded with

points he wanted to present for the Court’s consideration, which counsel included

with the Rule 26(c) brief. The State has responded to the Rule 26(c) brief and argues

that the Superior Court’s judgment should be affirmed.

(7) When reviewing a motion to withdraw and an accompanying brief

under Rule 26(c), this Court must be satisfied that the appellant’s counsel has made

a conscientious examination of the record and the law for arguable claims.21 This

21
Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429,
442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).

5
Court must also conduct its own review of the record and determine whether “the

appeal is indeed so frivolous that it may be decided without an adversary

presentation.”22

(8) Sutton’s first argument is that his use of force was justified. Sutton

asserts that he was permitted to use the force that he believed was necessary to

protect himself from unlawful force or to protect Irby from death or serious bodily

harm.23 He also contends that he was not obligated to retreat from his dwelling

before using force in self-protection.24 Because the Superior Court provided the jury

with a self-defense instruction, including as to the law governing retreat, we construe

Sutton’s argument to be that the Superior Court should have instructed the jury

regarding the use of force for the protection of other persons, as provided in 11 Del.

C. § 465.

22
Penson, 488 U.S. at 82.
23
Cf. 11 Del. C. § 464(a) (“The use of force upon or toward another person is justifiable when the
defendant reasonably believes that such force is immediately necessary for the purpose of
protecting the defendant against the use of unlawful force by the other person on the present
occasion.”); id. § 464(c) (“The use of deadly force is justifiable under this section if the defendant
reasonably believes that such force is necessary to protect the defendant against death, serious
physical injury, kidnapping or sexual intercourse compelled by force or threat.”); id. § 465
(establishing the circumstances under which the use of force to protect a third person is justifiable).
24
Cf. id. § 464(e)(2)a (providing that the use of deadly force in self-defense is not justifiable if the
defendant “knows that the necessity of using deadly force can be avoided with complete safety by
retreating,” except that the defendant “is not obliged to retreat in or from the defendant’s
dwelling”); id. § 465(b)-(d) (governing when retreat is required before using force for the
protection of a third person).

6
(9) Sutton requested a self-defense instruction but did not ask the Superior

Court to provide an instruction as to the use of force for the protection of another

person; we therefore review for plain error.25 “Under the plain error standard of

review, the error complained of must be so clearly prejudicial to substantial rights

as to jeopardize the fairness and integrity of the trial process.”26 By the time Sutton

fired the gun, Porter had left Irby lying on the sidewalk and joined with Harmon in

fighting with Sutton. Moreover, Sutton testified that he believed that it was

necessary to use the gun after Porter punched Sutton’s side, may have realized that

Sutton had a gun, and tried to reach for it. Thus, the more immediate threat by the

time of the shooting was to Sutton, not Irby, yet the jury declined to find that Sutton’s

conduct was justified as self-defense.27 On the facts of this case, we conclude that

25
See Canty v. State, 394 A.2d 215, 217 (Del. 1978) (“A request for instruction on defense of
others was not made before the charge was given, nor was an objection made thereafter. The Trial
Judge’s failure to instruct [s]ua sponte on that concept was not plain nor reversible error . . . .”);
see also Rivera v. State, 2023 WL 1978878, at *8 (Del. Feb. 13, 2023) (“Rivera did not request a
jury instruction on self-defense . . ., so we review for plain error.”); Probst v. State, 547 A.2d 114,
119 (Del. 1988) (reviewing for plain error because defendant did not object “at trial to any of the
jury instructions on the grounds that are currently before us”).
26
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
27
Consistent with 11 Del. C. § 470(a), the court instructed the jury that if it found that Sutton
believed that the use of force upon Harmon and Porter was necessary to protect himself against
death or serious physical injury, but he was reckless in having such belief, self-defense was
unavailable. See 11 Del. C. § 470(a) (“When the defendant reasonably believes that the use of
force upon or toward the person of another is necessary for any of the purposes for which such
relief would establish a justification under §§ 462-468 of this title but the defendant is reckless or
negligent in having such belief . . ., the justification afforded by those sections is unavailable in a
prosecution for an offense for which recklessness or negligence, as the case may be, suffices to
establish culpability.”); Clark v. State, 65 A.3d 571, 578 (Del. 2013) (holding that Section 470(a)
provides that justification is unavailable for offenses that require a reckless mental state if the
defendant’s belief that force is justified is itself reckless). The offenses of which Sutton was

7
the trial court did not plainly err by not sua sponte providing a defense-of-others

instruction.

(10) Next, Sutton claims that the police officers’ testimony at trial was

inconsistent or contradictory in various respects, amounting to perjury and a

violation of due process. For example, he asserts that one officer testified that Irby

spoke to her when she arrived on scene and then later testified that they did not have

a conversation; another officer said that he saw Porter on the ground but did not see

Irby; Detective Mosley, the lead investigator, testified that he obtained an arrest

warrant on April 5, 2021, and then later stated that he obtained it on April 2, 2021;

and Detective Mosley testified that he could not locate Sutton between April 2 and

13, 2021. After careful consideration, we conclude that, to the extent that Sutton has

identified inconsistencies or contradictions at all, they “were such as would usually

be found in the trial of criminal cases”28 and merely raised a credibility issue for the

convicted required a reckless mental state. See Appendix to Opening Brief at A623-24 (instructing
jury that “a person is guilty of manslaughter when a person recklessly causes the death of another
person” and that to find Sutton guilty of manslaughter “you must find that the State has proved the
following two elements beyond a reasonable doubt: 1, the defendant caused the death of Larry
Porter and; 2, in causing this death, the defendant acted recklessly”); id. at A630 (instructing jury
that “a person is guilty of reckless endangering in the first degree when the person recklessly
engages in conduct which creates a substantial risk of death to another person” and that “[i]n order
to find the defendant guilty of reckless endangering in the first degree, you must find the State has
proved the following two elements beyond a reasonable doubt: 1, the defendant engaged in
conduct that created substantial risk of death to Breon Harmon. 2, the defendant acted recklessly”).
28
Zutz v. State, 160 A.2d 727, 729 (Del. 1960).

8
jury to resolve.29 Sutton has not demonstrated that the State knowingly used perjured

testimony, and reversal is not warranted.30

(11) Sutton also argues that Detective Mosley edited a video from the night

of the shooting so that it did not show that Harmon was wearing a ski mask. Sutton

did not object to the introduction of the video at trial or argue that it had been edited

as he now claims. On appeal, Sutton has not substantiated his speculative assertion

that the video was edited and would have shown Harmon wearing a ski mask. We

find no merit to this claim.31

(12) Sutton asserts that there were certain text messages between Porter,

Harmon, and Michelle Porter (Porter’s wife and Harmon’s mother), which the State

29
See Romeo v. State, 2011 WL 1877845, at *3 (Del. May 13, 2011) (“[M]ere contradictions in a
witness’s testimony may not require reversal because those contradictions may not constitute
knowing use of false or perjured testimony. Rather, mere contradictions in trial testimony
establish a credibility question for the jury.” (citations omitted)); see also Knight v. State, 690 A.2d
929, 932 (Del. 1996) (“It is well-settled that the trier of fact is the sole judge of the credibility of
the witnesses and responsible for resolving conflicts in the testimony.” (internal quotation
omitted)).
30
Jenkins v. State, 305 A.2d 610, 616 (Del. 1973) (“There is nothing before us to indicate that the
State knowingly used perjured testimony. The fact that there were contradictions within Hall’s
testimony does not require reversal.”); see also Zutz, 160 A.2d at 495-96 (“The rule is too well
established that a verdict of a jury, based upon competent evidence, even though conflicting, will
not be set aside upon appeal. An appellate court does not weigh the testimony; to do so would
usurp the function of the jury. The only thing which an appellate court may do in such case is to
determine if there was competent evidence upon which the verdict might reasonably be based. If
there was, as we believe to be the case here, the judgment of conviction must be affirmed.” (citation
omitted)).
31
Cf. Blackwood v. State, 2023 WL 6629581, at *8-9 (Del. Oct. 11, 2023) (rejecting claim that
“the prosecution presented to the jury an ‘altered and manipulated’ video” of defendant’s interview
with police, because defendant “has not provided any evidence that the State altered or
manipulated the video, other than applying the approved redactions[, n]or does he assert that the
State did not provide the defense with an unredacted copy of the video, such that the defense could
have argued to the Superior Cour that the State had spliced the video, if that were true”).

9
did not introduce into evidence, that would have shown that Porter and Harmon went

to 222 West 19th Street on the night of the incident intending to fight Irby, not just

talk to him. The record reflects that the State produced the contents of Harmon’s

cellphone extraction, which included the text messages, in discovery in September

2021. Thus, the defense could have introduced the messages if they would have

been helpful to the defense. In any event, Harmon’s and Sutton’s testimony and the

video evidence reflected that the interaction quickly turned physical and that Porter

threw the first punch, and Sutton has not shown how the text messages would have

changed the result of the trial.32

(13) Sutton contends that the prosecution misled the jury by playing a

version of the neighbor’s Ring-camera video that was edited to omit Porter’s assault

on Irby. The trial transcript reflects that the neighbor observed that the video played

during his testimony was “cropped” and did not “show the whole video.”33 Sutton

concedes that the prosecution later played the full video for the jury. During closing

arguments defense counsel encouraged jurors to “[w]atch the uncropped version of

the video in realtime.”34 We find no reversible error as to this issue.

32
Sutton’s claim that he was denied a fair trial because the State failed to disclose any evidence
before trial is not supported by the record, which reflects that the State provided substantial
discovery beginning in September 2021; the discovery included, among many other things, the
surveillance videos, the crime-scene video, cell phone extractions, numerous police reports,
medical records and the report of Porter’s autopsy, warrants, a recording and transcript of Sutton’s
police interview, and a ballistics report.
33
Appendix to Opening Brief at A313.
34
Id. at A581.

10
(14) Sutton also claims that he was denied his right to a speedy trial. To

determine whether a speedy-trial violation occurred, we use the four-factor

balancing test set forth in Barker v. Wingo.35 The four factors are the length of the

delay, the reason for the delay, the defendant’s assertion of the right, and the

prejudice to the defendant.36 “The length of the delay is the trigger that necessitates

the consideration of the other three Barker factors.”37 “Unless the length of delay is

determined to be ‘presumptively prejudicial,’ it is not necessary to consider the other

Barker factors.”38 “The right to a speedy trial attaches as soon as the defendant is

accused of a crime through arrest or indictment, whichever occurs first.”39 If the

delay between arrest or indictment and trial approaches one year, then the Court will

generally consider the additional factors.40

(15) Sutton was arrested on April 13, 2021, and indicted on August 30, 2021.

Thus, his speedy-trial right attached when he was arrested. More than two years

passed between Sutton’s arrest on April 13, 2021, and the beginning of jury selection

35
407 U.S. 514 (1972). See Johnson v. State, 305 A.2d 622, 623 (Del. 1973) (adopting the Barker
framework for evaluating speedy-trial claims).
36
Johnson, 305 A.2d at 623 (citing Barker).
37
Dabney v. State, 953 A.2d 159, 164 (Del. 2008).
38
McGriff v. State, 2023 WL 600118, at *3 (Del. Jan. 27, 2023) (quoting Middlebrook v. State,
802 A.2d 268, 274 (Del. 2002)).
39
Middlebrook, 802 A.2d at 273.
40
McGriff, 2023 WL 600118, at *3.

11
on April 27, 2023, and we will therefore consider the additional Barker factors.41 As

to the reason for the delay, it was attributable to the judicial emergency that was

declared in response to the COVID-19 pandemic. The speedy-trial guidelines were

tolled during some of the period between Sutton’s arrest and his trial. 42 With the

exception of a brief period in October and November 2020, jury trials were

suspended between March 16, 2020, and June 1, 2021.43 Other proceedings,

including grand jury proceedings, were also suspended during the initial periods of

41
Compare Rivera v. State, 2023 WL 1978878, at *5 (Del. Feb. 13, 2023) (considering the
additional Barker factors “because there is more than one year between Rivera’s arrest (June 11,
2019) and the start of his trial (August 10, 2021),” and concluding that although approximately
eight weeks of delay were attributable to the State, “most of the trial delay” was the result of the
COVID-19 judicial emergency), with McGriff, 2023 WL 600118, at *3 (“More than one year
passed between McGriff’s arrest in May 2020 and trial in November 2021. McGriff fails, however,
to acknowledge the reason for this delay. For a significant portion of the time between McGriff’s
arrest (May 19, 2020) and trial (November 16, 2021 to November 18, 2021), there was a judicial
emergency in effect because of the COVID-19 pandemic. With the exception of a brief period
between October 5, 2020 and November 16, 2020, jury trials were suspended between March 2020
and June 1, 2021. The Chief Justice’s judicial emergency orders tolled the time requirements
under the Speedy Trial Guidelines. McGriff also fails to identify any prejudice that he suffered
from the delay. He has not shown that the delay caused any impairment to his defense. There was
no violation of McGriff’s right to a speedy trial.” (citations omitted), and McGriff v. State, 2023
WL 469122, at *2-3 (Del. Jan. 27, 2023) (similar discussion relating to different prosecution, in
which defendant was arrested on April 22, 2020 and trial began on July 20, 2021).
42
See In re COVID-19 Precautionary Measures, Administrative Order No. 22 Extension of
Judicial Emergency, at 1-3 (Del. June 29, 2021), available at https://courts.delaware.gov/forms/
download.aspx?id=157738 (reciting that a judicial emergency went into effect on March 16, 2020,
was repeatedly extended, and would be lifted on July 13, 2021, and providing: “Until the
expiration of the judicial emergency on July 13, 2021, all time requirements under the Speedy
Trial Guidelines are tolled. . . . After the judicial emergency expires, the trial courts shall comply
with those guidelines, as amended.”).
43
McGriff, 2023 WL 469122, at *2 & nn. 10-11 (citing administrative orders).

12
the judicial emergency.44 The suspensions created a backlog of proceedings to

resolve as the courts moved toward resuming normal operations. On June 29, 2021,

in connection with the anticipated end of the judicial emergency on July 13, 2021,

the Chief Justice authorized the Superior Court to prioritize cases in which the

defendant was indicted between March 16, 2020, and December 31, 2021, “as [the

Superior Court] determines to be in the best interests of justice and of allowing for

the prompt and efficient management of the caseload resulting from the COVID-19

pandemic.”45 Sutton was indicted on August 30, 2021. On October 18, 2021, the

Superior Court entered a scheduling order that provided for Sutton’s jury selection

to begin on April 27, 2023, and trial to begin on May 1, 2023. Those dates stuck:

jury selection began on April 27, 2023, and the jury was sworn and trial began on

May 1, 2023. The delay in this case was clearly attributable to the COVID-19

judicial emergency, and this factor therefore is neutral and does not weigh in

Sutton’s favor.46

44
See, e.g., In re COVID-19 Precautionary Measures, Administrative Order No. 13 Return to
Phase 2 of the Reopening Plan (Del. Nov. 16, 2020) (providing for return to Phase 2 of courts’
reopening plan and permitting grand jury proceedings during Phase 2).
45
In re COVID-19 Precautionary Measures, Administrative Order No. 22 Extension of Judicial
Emergency, supra note 42, Exhibit 1 ¶ (a)(iv).
46
See United States v. Small, 2023 WL 4399212, at *4 (3d Cir. July 7, 2023) (describing the
COVID-19 pandemic as a “neutral reason” for a delay that “weighs against neither party” in the
Barker analysis, and citing cases from other federal courts of appeal); see also United States v.
Allen, 86 F.4th 295, 305 (6th Cir. 2023) (“[F]rom July 2020 to August 2021, the district court
delayed the trial because of the COVID-19 pandemic. We and other courts have treated this type
of delay as a valid reason that also weighs against the defendants (or at least as a neutral reason
that favors neither party).”); United States v. Pair, 84 F.4th 577, 589 (4th Cir. 2023) (analyzing

13
(16) As to the defendant’s assertion of his right to a speedy trial, Sutton’s

counsel did not assert a speedy-trial violation, a fact that might be attributable to

counsel’s recognition that the Superior Court scheduled the matter within the

authority afforded it in light of the judicial emergency. Sutton did submit pro se

correspondence to the court in which he mentioned the length of time that he had

been incarcerated and his right to a speedy trial, although the correspondence

focused largely on his claims that his use of force was justified. The Superior Court

forwarded the correspondence to counsel under Superior Court Rule of Criminal

Procedure 47. This factor is neutral in our analysis.

(17) As to the fourth Barker factor, this court considers prejudice “in light

of three of defendants’ interests that the speedy trial right was designed to protect:

(1) preventing oppressive pretrial incarceration; (2) minimizing the anxiety and

concern of the accused; and (3) limiting the possibility that the defense will be

impaired.”47 “Of these, the most serious is the last, because the inability of a

defendant adequately to prepare his case skews the fairness of the entire system.”48

“Not only is impairment of a defendant’s defense the most serious type of prejudice,

but it is also the most difficult form of speedy trial prejudice to prove because time’s

“presumptively prejudicial” delay of 401 days and determining that the judicial response to the
COVID-19 pandemic was “a valid reason for delay” that “favor[ed] the government” under the
second Barker factor).
47
Middlebrook, 802 A.2d 268, 276 (Del. 2002).
48
Barker v. Wingo, 407 U.S. 514, 532 (1972); Middlebrook, 802 A.2d at 277.

14
erosion of exculpatory evidence and testimony can rarely be shown.”49 “[W]hether

the delay has hurt the defense is not a point to be resolved with mathematical

certainty.”50 After careful consideration, we conclude that Sutton has not established

that the delay in this case prejudiced his defense. The fact that Sutton shot Porter

was not disputed, and the witnesses’ testimony regarding the incident was generally

consistent—to the extent that there were material inconsistencies, they appear to be

attributable to normal differences in witnesses’ motivations or observations, rather

than to faded memories.51 The issue in the case was whether Sutton was justified in

shooting Porter, which turned on Sutton’s state of mind and his belief about the threat

posed by Porter and Harmon. Sutton has not demonstrated how he was prejudiced

by the delay.52 We conclude that the pandemic-related delay in this case did not

violate Sutton’s constitutional right to a speedy trial.

49
Middlebrook, 802 A.2d at 277 (internal quotations omitted).
50
Id. (internal quotations omitted).
51
For example, Harmon testified that he was not wearing a ski mask on the night in question, and
Sutton testified that Harmon was wearing a ski mask. That difference in testimony is more likely
explained by the differing motivations of those witnesses than by faded memories, and it presented
a credibility question to be resolved by the jury.
52
Cf. United States v. Chu, 99 F.4th 610, 615 (3d Cir. 2024) (holding that COVID-19-related
delays did not violate defendant’s constitutional right to a speedy trial, in case in which defendant
was indicted in September 2019 and trial began March 1, 2022; stating that the defendant did not
“provide evidence that the delay impaired her ability to prepare a defense, and only asserted claims
of emotional distress,” and that defendant’s “desire to minimize the stress she felt from delays in
her trial, while understandable, is simply not sufficient on its own to establish prejudice”); United
States v. Allen, 86 F.4th 295, 306 (6th Cir. 2023) (holding that defendants were required to—and
failed—to show actual prejudice from delays for which there were valid reasons, including
pandemic-related delays); United States v. Pair, 84 F.4th 577, 590-91 (4th Cir. 2023)
(acknowledging defendant’s arguments concerning prejudice from pretrial incarceration and
heightened anxiety from the delay, especially in light of high rates of COVID-19 among inmates,

15
(18) Sutton also appears to challenge the Superior Court’s decision to grant

the State’s request for lesser-included-offense instructions, over Sutton’s objection.

We review this claim de novo.53 A trial court should instruct the jury on a lesser-

included offense if: (1) a party makes a proper request; (2) the lesser-included

offense contains some, but not all, of the elements of the charged offense; (3) the

elements differentiating the two offenses are in dispute; and (4) there is some

evidence that would allow a rational jury to acquit the defendant of the greater charge

and convict him of the lesser charge.54

(19) The State requested that the court instruct the jury on second-degree

murder and manslaughter as lesser-included offenses of the first-degree murder

charge and on first-degree reckless endangering as a lesser-included offense of

attempted first-degree murder. The offenses on which the court instructed the jury

differed as to the intent element, which was in dispute. The Superior Court

determined that there was some evidence that would allow a rational jury to find that

but concluding that defendant had not demonstrated prejudice under Barker because he did not
show that “any evidence was damaged or lost, that any witnesses could not be found, or that his
case was harmed in any manner by the delay” (internal quotation omitted)).
53
Capano v. State, 781 A.2d 556, 628 (Del. 2001).
54
Clark v. State, 65 A.3d 571, 581-82 (Del. 2013); see also State v. Cox, 851 A.2d 1269 (Del.
2003) (“In criminal proceedings, a trial judge is required to instruct the jury on a lesser-included
offense over the objection of an opposing party if: it is requested by any party; there exists a
rational basis in the evidence for the jury to convict the defendant of the lesser charge and acquit
the defendant of the greater charge; and prosecution for the lesser-included offense is not time
barred. In this case, the trial judge committed legal error by sustaining the defendant’s objection
and denying the State’s request for a lesser-included offense instruction that was rationally
supported by the evidence.”).

16
Sutton acted without the requisite intent for first-degree murder or attempted first-

degree murder but instead acted recklessly or with a cruel, wicked, and depraved

indifference to human life.55 We agree. Among the evidence from which a rational

jury might have concluded that Sutton acted recklessly rather than intentionally was

Sutton’s testimony concerning the perceived threat; his testimony that he could

barely see when he reached for the gun,56 he could not hear because adrenaline was

rushing,57 he was “in shock,”58 “in a panic,”59 and “did not want to hurt them;”60 and

his statement to Detective Mosley that on the night of the incident he thought he

might have shot Irby.61 The Superior Court correctly concluded that lesser-included-

offense instructions were warranted.

(20) Sutton also argues that, by convicting him of manslaughter and first-

degree reckless endangering but acquitting him of the two PFDCF counts, the jury

rendered inconsistent verdicts. Sutton did not present this argument to the Superior

55
Appendix to Opening Brief at A530.
56
Id. at A473.
57
Id. at A494.
58
Id. at A475.
59
Id. at A500.
60
Id. at A484.
61
Id. at A492-93.

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Court.62 To the extent the verdicts are inconsistent,63 the Court may uphold the

manslaughter and reckless endangering convictions under the rule of jury lenity

because there was sufficient evidence to justify those convictions.64

(21) Finally, Sutton inquires whether it was “legal for [Detective Mosley] to

sit in on the entire trial as a state witness?” Sutton did not ask the Superior Court to

exclude Detective Mosley, the chief investigating officer, from the trial. “This Court

has ruled that the chief investigating officer for the prosecution in a criminal case is

62
See DEL. SUPR. CT. R. 8 (“Only questions fairly presented to the trial court may be presented for
review; provided, however, that when the interests of justice so require, the Court may consider
and determine any question not so presented.”).
63
See Tilden v. State, 513 A.2d 1302, 1306 (Del. 1986) (“Inconsistent verdicts may take the form
of acquittal of a predicate offense but conviction of a compound offense; or conviction of a lesser
included offense which implicitly results in an acquittal of a more serious offense the aggravating
element of which is required for the conviction of a related compound offense.”). The jury’s
verdict in this case does not fit either of the inconsistent-verdict scenarios described in Tilden.
Sutton was convicted of offenses—manslaughter and first-degree reckless endangering—each of
which was one of the three elements of the corresponding PFDCF count and acquitted of PFDCF.
See Appendix to Opening Brief at A625-26 (“[T]o find the defendant guilty of possession of a
firearm during the commission of a felony, you must find that each of the following three elements
have been established beyond a reasonable doubt: 1, the defendant committed the felony, in this
case attempted murder in the first degree, murder in the second degree or manslaughter. 2, the
defendant possessed a firearm during the commission of a felony. 3, the defendant acted
knowingly. . . . Knowingly means that a defendant knew or was aware that the defendant was
engaging in unlawful conduct.”); id. at A631-32 (“[T]o find the defendant guilty of possession of
a firearm during the commission of a felony, you must find that each of the following three
elements has been established beyond a reasonable doubt. 1, the defendant committed a felony, in
this case attempted murder in the first degree or reckless endangering in the first degree. 2., the
defendant possessed a firearm during the commission of a felony. 3, the defendant acted
knowingly. The terms firearm and possession and knowingly have all previously been defined for
you, so I’m not going to reread them. They will be in your instructions.”). The jury might have
determined that the State did not prove one of the other elements of PFDCF, such as the
“knowingly” element.
64
Williams v. State, 2020 WL 388431, at *3 (Del. Jan. 22, 2020).

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exempted from sequestration” under Delaware Uniform Rule of Evidence 615(b).65

“Thus, absent other reasons for sequestration, the chief investigating officer may not

be excluded from the trial even if he is scheduled to testify.”66 We find no error as

to this issue.

(22) We have reviewed the record carefully and conclude that Sutton’s

appeal is wholly without merit and devoid of any arguably appealable issue. We

also are satisfied that Sutton’s counsel has made a conscientious effort to examine

the record and has properly determined that Sutton could not raise a meritorious

claim in this appeal.

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

Court be AFFIRMED. The motion to withdraw is moot.

BY THE COURT:

/s/ Gary F. Traynor
Justice

65
Taylor v. State, 849 A.2d 405, 408 (Del. 2004). D.R.E. 615(b) provides that, although the court
may order sequestration of witnesses, the rule does not authorize excluding “an officer or employee
of a party that is not a natural person, after being designated as the party’s representative by its
attorney.”
66
Taylor, 849 A.2d at 408.

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