Starling v. State

I. INTRODUCTION

A masked gunman entered a Wilmington, Delaware barbershop,- shot to .death his intended victim, and also- shot and killed a five-year-old boy. -The police arrested Chauncey Starling one month after the shooting, when the State’s key witness; Alfred Gaines, identified Starling as the shooter after Starling allegedly shot Gaines in a separate incident in Chester, Pennsylvania.

*320In 2003, the State tried Starling for first degree -murder, conspiracy, and related weapons charges. No physical evidence linked Starling to the crime. Instead, the State relied primarily on Gaines’ testimony and statements made to police by Starling’s brother and girlfriend. The State also relied on testimony from the victim’s girlfriend, who identified Starling as the shooter based on his eyes. A Superior Court jury convicted Starling of all charges, and the judge sentenced him to death. On direct appeal, this Court affirmed the conviction but remanded the case for resentencing. After remand, the Superior Court again sentenced Starling to death. We then affirmed the death sentences.

Starling then moved for postconviction relief in the Superior Court. Starling claimed that his counsel during tidal (“Trial Counsel”) was ineffective, that the State failed to disclose exculpatory evidence under Brady v. Maryland,1 and that the prosecution engaged in misconduct at trial. Following years of discovery, evidentiary hearings, and briefing, the Superior Court on September 5, 2014, denied Starling’s motion and this appeal followed. Starling renews the same constitutional arguments on appeal.

With no physical evidence to link Starling to the crimes, it was essential to a fair trial that Trial Counsel use all available impeachment evidence, and make timely and appropriate objections to the admission of evidence going to the heart of the State’s case. It was also incumbent on the State to provide Trial Counsel with accurate information about exculpatory evidence relevant to the credibility of the State’s central witness. Our review of the record leads us to conclude that mistakes were made that undermine confidence in the fairness of the trial.

First, Starling’s Trial Counsel intended to but forgot to examine an eyewitness to the shooting about statements the witness made to an investigator shortly after the shooting. That eyewitness stated that he recalled seeing photographs in the newspaper of the two barbershop shooting suspects, one of which was Starling, and told the investigator that “none of those individuals had the same appearance as the shooter.” Second, Trial Counsel failed to object to the State’s admission of Starling’s brother’s statement to police, where after several hours of interrogation the twenty-three year old told ‘police that Starling said he was sorry for what he did to the boy. A substantial argument could have been made that the statement was involuntary and therefore inadmissible.

Finally, before trial the State dismissed a capias and violation of probation (“VOP”) charges against Gaines, the State’s central witness at trial, but at the time of trial the State represented to Trial Counsel that the charges remained “pending.” We have long held that whenever the State reduces pending charges against any State witness, whether the charges are related to the crime at trial or not, disclosure to the defense is mandatory.2 Instead of providing accurate information, the State misinformed Trial Counsel about the status of Games’ charges. This mistake, unintentional as it was, deprived the defense of important evidence that might have been used to attack the credibility of the State’s main vntness.

The cumulative effect of each of these errors leads us to conclude that there is a reasonable probability that the outcome of the trial would have been different without *321the errors. Therefore we reverse Starling’s conviction and remand for a new trial.

II. BACKGROUND3 A. The Shooting

On March 9, 2001, at about 8:30 p.m., several patrons were in the Made 4 Men Barbershop in Wilmington. A masked gunman wearing a black hooded sweatshirt entered the barbershop and opened fire on Darnell Evans, who was sitting in a barber’s chair near the entrance. Evans ran to the back of the barbershop, and the shooter followed him, After Evans fell to the ground, the shooter stood over Evans and shot him twice in the head. Evans suffered “five gunshot wounds to the head, chest, abdomen, and groin.”4 At some point, five-year-old Damon Gist, Jr., who was there with his father, was shot in the jaw. Both Evans and Gist died from their wounds.

The barbershop’s owner, Lawrence Moore, initially pursued the shooter, but ultimately abandoned the chase. Although Moore and the barbershop patrons witnessed the shooting, none of them could identify the shooter by name. The police did not recover any DNA, fingerprints, or the murder weapon.

On April 7, 2001, Pennsylvania police discovered Alfred Gaines in Chester, Pennsylvania. Gaines had been shot multiple times around 11:18 p.m. and was in possession of crack cocaine. He was also in violation of his probation in Delaware, which, among other things, forbade him from leaving the State of Delaware, possessing controlled substances, or being out after 10:00 p.m. After police arrested him for violation of his probation and possession of crack cocaine, Gaines told detectives that Starling was the person who shot him, and that Starling‘had also committed the barbershop shooting. Starling had allegedly been pursuing Gaines because Gaines had shot an acquaintance of Starling’s the day before in Wilmington.

In November 2001, a grand jury indicted Starling for the barbershop shooting. Starling was charged with two counts of first degree murder, two counts of possession of a firearm during the commission of a felony, and one count of first degree conspiracy.

B. Starling’s Trial

The State’s primary witness was Gaines, who testified that he was with Starling and Richard Frink on the evening of the shooting; He testified that the three men were driving around Wilmington and that when they passed the barbershop, Frink saw Evans through the window. According to Gaines, Starling then exited the car, tucked a gun into his pants, and said he was going to “put in some work,” which Gaines interpreted to mean that Starling would shoot or fight someone.5 Gaines testified that Starling was dressed in all dark clothing and wearing a black hooded sweatshirt. According to Gaines, after fifteen minutes, Starling came back to the car where Gaines and Frink had remained and said, “I got him. I got him. I think I got a little boy, too.” 6 Gaines testified that Frink then drove Gaines home.

Gaines also testified that Starling called him the evening of the shooting, because Starling was upset and wanted to talk. *322Gaines apparently took a taxi' to meet Starling at the 'home of Vicki Millet, Starling’s girlfriend. Gaines testified that Starling “was a wreck” and mentioned shooting “a little boy.”7 Starling’s brother Michael was present, and Gaines alleged that both he and Michael heard Starling say he was sorry for what he did to the boy. Michael drove Gaines home.

At trial, the State introduced Michael’s statement to police detectives obtained during his interrogation op April 27, 2001.8 Several days earlier, Michael, who was twenty-three years old at the time, had been arrested and held in custody for six or seven hours before being released.9 Then, on April 27, police came to Michael’s workplace and drove him to the station for questioning. The detectives took Michael’s cell phone, would not let him make phone calls, and ignored his repeated requests for his mother. 10 Michael at first denied that his brother was involved ip the shooting. The Detectives then threatened Michael with criminal charges and,suggested that he could spend the rest of his life in jail for crimes he did not commit,11 or in the alternative, obstruction of justice.12 The police told Michael that his brother had confessed. They questioned Michael extensively, reiterating that everyone else’s story was the same, and told Michael repeatedly what they wanted him to say — that Starling said the night of the shooting he was sorry for what he did to the boy.13 After being told he could see his mother and the questioning would end when he repeated the statement back, Michael finally told the detectives that Starling had said he was sorry for what he did to the boy.14 The State introduced Michael’s statement at trial without objection and without a determination by the trial judge that the statement was voluntary.

Shaylynn Flonnory, Evans’ girlfriend, made an in-court identification of Starling. She claimed that she was standing outside the barbershop right before the shooting and that she saw the shooter dressed in all black, including a black hooded sweatshirt, holding a gun. Flonnory testified that she saw the shooter’s eyes through the openings in the shooter’s mask. At trial, she identified Starling as the shooter based on his eyes.

The jury convicted Starling on each count of the indictment on October 22, *3232003.15 On November 4, 2003, the jury concluded that the aggravating factors outweighed the mitigating factors and unanimously recommended the death penalty. The Superior Court agreed with this recommendation and sentenced Starling to death on June 10, 2004.16

C. Starling’s Direct Appeal

In his direct appeal, Starling raised a number of arguments relating to the jury venire, use of peremptory challenges, and denial of his Fifth Amendment right against self-incrimination. He also challenged the constitutionality of Delaware’s death-penalty statute under the Sixth Amendment, as well as the Superior Court’s sentencing decision. Further, Starling argued that the prosecution failed to disclose Miller’s statement to police, “den[ying] that Starling admitted anything to her or that she saw Starling on the night of the shootings.”17

This Court affirmed the convictions but vacated the death sentences because the Superior Court judge “erred as a matter of law by stating that he was ‘directed’ to give the recommendation great weight.”18 This Court then remanded the case to the Superior Court for resentencing. The . Superior Court resentenced Starling to two death sentences on October 2, 2005. We affirmed those sentences on appeal.19

D. Starling’s Motion For Postconviction Relief

In April 2007, Starling filed three pro se Rule 61 motions for postconviction relief.20 The Superior Court appointed counsel, who filed an Amended Petition for Post-conviction Relief on April 1, 2008. During the next six years, the Superior Court held numerous hearings on various petitions and responses.

At the postconviction relief hearings, Starling’s post-conviction counsel examined various individuals involved in his prosecution between 2001 and 2004. On November 26, 2012, one of the prosecutors testified about her recollections of dealing with the potential extradition of Gaines after he was shot in Chester, and of a possible cooperation agreement with Gaines.21 The prosecutor was not able to recall many details about her work on the case. She did, however, testify that she requested that the Superior Court with-? draw a pending capias and VOP charges against Gaines such that he would not be extradited to Delaware.22 The lead prosecutor also testified. He testified that he believed and told Trial Counsel before trial that Gaines’ VOP was “pending” and “we weren’t doing anything or that nothing was being done with them, they were being held in abeyance until after his trial....”23

Trial Counsel also testified and submitted an affidavit. Trial Counsel testified that he was not aware that the State had asked the Superior Court to withdraw the capias and Gaines’ VOP charges. Trial Counsel said that the State provided him *324with a summary of Gaines’ prior criminal history just before trial, which listed Gaines’ VOP charges as pending. Trial Counsel also testified that he forgot to ask Moore about the statements Moore made to an investigator — that neither of the photographs in the newspaper of suspects in the barbershop shooting, one of which was Starling, looked like the shooter. Moore had also described the shooter as substantially taller than Starling. According to Trial Counsel, Moore’s opinion that Starling did not look like the shooter “was something that obviously was favorable to the defense.”24 Additionally, Trial Counsel admitted that his failure to cross-examine Moore about it “certainly wasn’t strategic or tactical.”25 Finally, Trial Counsel testified that he believed Michael’s statement was coerced and involuntary, but that rather than object to its admission, he sought to let the jury decide whether to believe it by playing them the recording of the entire interview.

Starling based his Rule 61 motion on various grounds. We discuss only those necessary to resolve this appeal. First, Starling argued that Trial Counsel was ineffective for failing to examine Moore on his statements to an investigator. The Superior Court concluded that Trial Counsel was not ineffective for failing to do so because Starling failed to establish how “Moore’s testimony would have altered the outcome of Starling’s trial.”26 The Court noted that various eyewitnesses testified regarding the shooter’s height and weight, and Starling made no showing that Moore’s additional testimony “would have altered the jury’s perception of the shooter’s body type in a way that would have produced a different trial outcome.”27

Second, Starling asserted that Trial Counsel was ineffective for failing to object to the State’s admission of Michael’s statement to detectives into evidence. The Superior Court also rejected this argument. It observed that the tape’s introduction “permitted the jury to consider the credibility of Michael’s confession, thus providing potentially exculpatory evidence for Starling.”28 Third, Starling argued that the State violated its obligation under Brady v. Maryland by withholding information useful to impeach Gaines’ testimony. At the recommendation of Games’ probation officer and the request of the Delaware Attorney General’s office, the State withdrew Gaines’ capias and VOP charges on October 17, 2001.29 The Superior Court first concluded that Rule 61(i)(3) barred this claim.30 On the merits, the Superior Court accepted the State’s assertion that it made no deal with Gaines, and concluded that the State allowed Gaines to remain in Pennsylvania because of safety concerns related to Starling’s alleged shooting of Gaines in Chester.31 The Superior Court *325also explained that “disclosure was not mandated because Trial Counsel ... knew that Gaines’ probation had been discharged.” 32

The Superior Court rejected these arguments for postconviction relief and his other claims. Starling renews the same claims on appeal.33

III. ANALYSIS

We review the Superior Court’s denial of a motion for postconviction relief for abuse of discretion.34 We review ineffective assistance of counsel claims and alleged Brady violations de novo.35

A. The Strickland Standard

In Strickland v. Washington, the United States Supreme Court established a two-pronged test for ineffective assistance of counsel claims:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result' is reliable.36

We evaluate Starling’s ineffective assistance of counsel claims using this approach, determining whether Trial Counsel was deficient and, if so, whether Starling suffered prejudice from the ineffectiveness. Defense counsel is.deficient where counsel’s representation falls below an objective standard of reasonableness.37 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.”38 A reasonable'probability of a different result means a “probability sufficient to undermine confidence in the outcome,” a standard lower than “more likely than not.”39 ■ “The likelihood of a different result must be substantial, not just conceivable.” 40

B. Starling’s Trial Counsel Was Ineffective For Failing To Elicit Exculpatory Evidence From Moore

Starling argues that Trial Counsel was ineffective for failing to cross-examine *326Moore about his exculpatory statements. As the only person who saw the shooter during, the shooting and chased him. afterward, Moore had the best opportunity to identify him.41 According to an investigator’s report, Moore,stated during an interview, after seeing the newspaper photographs of two suspects in the barbershop shooting, one of which was Starling, that neither of the photographs looked like the shooter, and that the shooter was substantially taller than Starling.42 Trial Counsel forgot to ask Moore about these exculpatory statements during cross-examination. Ip, his testimony during postconviction proceedings, Trial Counsel testified that Moore’s opinion that Starling did not look like the shooter ‘Vas something that obviously was favorable to the defense.”43 Additionally, Trial Counsel testified that his failure to cross-examine Moore about it “certainly wasn’t strategic or tactical.”44 The Superior Court nonetheless determined that Trial Counsel’s representation was effective because “[t]here is no requirement that Trial Counsel elicit all possible evidence at trial.”45

It is correct, as a general matter, that trial counsel does not have to elicit all possible evidence at trial. But where eyewitness testimony played a central role in the State’s case, and no physical evidence linked Starling to the crime, Trial Counsel’s failure to use important exculpatory evidence.fell below any objective standard of reasonableness and was ineffective representation. Trial Counsel had in hand a private investigator’s report where eyewitness Moore, who claimed to be the only witness to view the entire incident, recounted to the investigator that he saw two photographs of the shooting suspects, one of which was Starling, and said that “none of those individuals had the same appearance as the shooter.”46 Despite attempts by Trial Counsel to recall Moore to the stand after realizing the mistake, Trial Counsel could not locate Moore.47 Forgetting to examíne a witness on critical exculpatory eyewitness testimony was ineffective assistance of counsel.

The Superior Court determined that Starling failed to demonstrate actual prejudice from the mistake because “the jury heard various pieces of testimony on the height and stature of the shooter” and Moore’s testimony would not have “altered the jury’s perception of the shooter’s body type in a way that would have produced a different trial outcome.”48 We disagree. Moore arguably had the best view of the shooter. The jury could have found Moore’s description of the shooter’s physical characteristics the most reliable, which would have been favorable to Starling. *327The jury could have also used Moore’s testimony to aid in its evaluation of other eyewitness testimony offered by the State.

For instance, Moore’s initial-recollection of the shooter’s height was 6’1" -or 6’2." Starling is 5’6."49 Charrod Ali Batts, and Damon Gist, Sr., also eyewitnesses, gave conflicting testimony about the shooter’s appearance. Batts testified that the shooter “wasn’t too tall” and “wasn’t too short,” but rather was “probably the same size as me if not a little bit shorter.”50 Batts testified that he is 5'8" or 5'9."51 Gist, on the other hand, testified closer to -Moore that the shooter was 5'11” or ,6'0."52 Moore also believed the shooter was “about 200, 205” pounds, which differed from Gist’s recollection of “around 170.”53

Given the serious conflict among the eyewitnesses about .the shooter’s appearance, and the lack of any physical evidence connecting Starling to the crime, Trial Counsel’s failure to elicit important exculpatory testimony from the witness with perhaps the best vantage point to view the shooter caused serious prejudice to Starling’s defense.

C. Starling’s Trial Counsel Was Ineffective For Not Objecting To Michael Starling’s Statement

Starling asserts that Trial Counsel was ineffective for -failing to object to the State’s admission into evidence of Michael’s pre-trial statement. As explained previously, during interrogation by two detectives two months after the shooting, Michael told police that he heard Starling say that he was sorry for what he did. to the boy.. Without objection, the State entered the statement- into evidence at the conclusion of a detective’s examination, not during ■ Michael’s examination as required by the statute. - Trial Counsel never asked the court to make- a threshold voluntariness determination, and none was made by the trial court.54 - -

Under § 3507 of the Delaware Criminal Code, “[i]n a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative -evidence with substantive independent testimonial value.”55 The General Assembly enacted the statute to allow the statements of turncoat witnesses to be admitted into evidence.56 The statement must be voluntary to be admissible.57 The voluntariness requirement ensures that coercion by improper conduct does not taint, the reliability of these statements.58

*328There are certain threshold requirements to admissibility that must be met before the statement can be heard by the jury:

A statement offered under Section 3507 must be offered before the conclusion of the direct examination of the declarant. The prosecutor must inquire about the voluntariness of the statement during the direct examination of the declarant, and the judge must make a ruling on whether the declarant made the statement voluntarily before the statement may be submitted to the jury for consideration.59

“Determining whether a statement was voluntary requires a ‘careful evaluation of all the circumstances of the interrogation.’ ”60 For a statement to be involuntary, it must have been obtained by tactics that are so coercive as to “overbear the person’s will and rational thinking processes.”61 A statement obtained by threats can be involuntary.62

The Superior Court ruled that Starling essentially waived this claim because “Trial Counsel introduced the tape himself,” and in any event introduction of the tape “was not objectively unreasonable because Michael’s taped interview permitted the jury to consider the credibility of Michael’s confession, thus providing potentially exculpatory evidence- for Starling.”63 We disagree with the Superior Court and determine that counsel’s failure to object to Michael’s statement was ineffective and caused material prejudice to Starling’s defense.

As an initial matter, the record contradicts the finding of waiver. The State moved the admission of Michael’s statement, not Starling.64 Trial Counsel did thereafter play the full interview for the jury, but only after the statement was in evidence:65 Trial Counsel’s decision to play the entire interrogation for the jury, rather than being a tactical decision, is better described as damage control after failing to object. It is also no answer to say, as the State claims and as the Superi- or Court held, that Starling delegated to the jury the voluntariness determination. Under § 3507 the voluntariness determination is the exclusive province of the trial judge, not the jury.66 Although we need not determine at this juncture whether Michael’s statement was voluntary, serious doubt existed about the voluntariness of Michael’s statement such that Trial Counsel should have objected and insisted that the statute’s requirements be satisfied, in-*329eluding a voluntariness determination by the trial court.

If there had been an objection, the trial judge would have had to determine, under the totality of the circumstances, whether Michael’s “will was so overborne that the statements produced were not the product of a rational intellect and free will.”67 This is a fact-specific inquiry where the trial judge “eonsider[s] the specific tactics utilized by the police in eliciting the admissions, the details of the interrogation, and the characteristics of the defendant.”68

' In this case, Michael found himself surprised by a “hallway full of cops” at his workplace who took him away for interrogation.69 He was then held at the police station for approximately five or six hours and interrogated by two detectives.70 Michael was not read his Miranda rights. Michael was not allowed to make any phone calls.71 While in custody, Michael repeatedly asked to speak to his mother,72 who the police promised would be arriving shortly (though she did not).73 The police also told Michael exactly what they wanted to hear him say: “[W]e already know what happened, we know the-story, but we know that he told you [sic] that he was sorry for I just need to hear it from you! And we’re done!”74

The police then repeatedly threatened to charge Michael with crimes if he did not say what they wanted to hear.75 Specifically, the police told him that he could be charged with the barbershop murders, telling him: “The bottom line is don’t drag yourself down the sewer when you weren’t even there! Unless you want to ' get charged? ... You don’t want to take a charge for something you didn’t do? Particularly when you don’t have to.”76 The *330police also threatened to charge Michael with obstruction of justice.77 The police admitted to making these threats: “Q. Did you or did Detective Sullivan threaten Michael with being criminally charged in connection with something he didn’t. do? ... A. Yeah I guess.”78 Michael testified at trial that “[he] just told them what they wanted to hear, or [he believed he] was going to ... jail,”79 In- the face of substantial evidence pointing to the involuntariness of Michael’s statement, Trial Counsel did not object and did not invoke the procedural requirements of § 3507.

Finally, the State argues that Trial Counsel’s testimony reflects that the failure to object was a tactical decision, and should not be second-guessed by this Court. Trial Counsel stated that, because he believed that the statement was admissible under § 3507, he “sought to suggest to the jury that it had been the product of coercion by the interviewing detectives.”80 Some judgments made by trial counsel, however, are so far out of the -realm of reasonable trial strategy that they qualify as ineffective assistance.81 Trial Counsel recognized that Michael’s statement “was the biggest problem for the defense case [and] was the best part of the prosecution case.”82 ' Trial Counsel would have risked nothing by objecting to Michael’s statement and forcing the State to follow the requirements of § 3507 and prove volun-tariness. Even if the trial court overruled Starling’s objection, Trial Counsel would still have been able to play the full tape for the jury and argue involuntariness. As such, Trial Counsel’s performance fell below the standard of objectively reasonable performance and prejudiced Starling’s right to a fair trial.83

D. The State Violated Brady By Telling Trial Counsel That Gaines’ Capias And VOP Were Pending During Trial

Starling argues that the State violated its obligation to provide accurate informa*331tion to the defense and to disclose-exculpatory information under Brady about the disposition of Gaines’ capias and VOP charge. The State argues in response, and the Superior Court agreed, that the claim was procedurally barred, and also without merit because Trial Counsel was allegedly aware of the ■ dismissal before trial. , The Superior Court also found that Trial Counsel would not have used the impeachment evidence to avoid opening the, door to other evidence unhelpful to, Starling’s case. After our review of the record, we hold that the claim was not procedurally barred. We also find that the State violated Brady by inaccurately describing the status of Gaines’ criminal charges, and the error caused material prejudice to the defense.

Gaines was a probationer when he was shot in Chester, Pennsylvania. The terms of his probation required him to remain in Delaware, to observe a 10:00 p.m. curfew, and not to consume or possess controlled substances.84 Gaines’ probation officer, Jason Garrick, secured a capias for his arrest and instituted a VOP charge after Gaines was shot because Gaines was out of state, out of his house after his, curfew, and possessed crack cocaine at the time he was shot.85 Garrick recommended that Gaines be extradited,- his probation be revoked, and he be returned to Delaware to serve out the remainder of his prison sentence.86 The State also filed a detainer against Gaines and obtained an extradition order to allow Gaines to be taken into custody upon his release from prison in Pennsylvania after being held on charges of possessing crack cocaine.87

After a prosecutor spoke to Officer Garrick about Gaines’ shooting in Chester, Officer Garrick wrote in Gaines’ October 16, 2001 probation progress report: “After speaking with [the assistant attorney general], she advised me that she spoke to Your Honor and requested that [Gaines’] VOP and Capias be withdrawn. This Officer is respectfully recommending that Your Honor withdrawal [sic] the VOP and Capias on Mr. Gaines.”88. The first prose-cútor who made the request was one of the prosecutors in Starling’s case. She- testified that Gaines’ VOP and capias were withdrawn because Gaines was physically unable to return to Delaware.89 The court dismissed the capias and the . VOP charge,90 and allowed Gaines to stay in Pennsylvania while he recovered from his injuries. Gaines was no longer reporting to his probation, officer, but was instead allegedly “being supervised by the Attorney General’s Office.”91

*332After the dismissal of charges, but before trial, the first prosecutor did not inform Trial Counsel of the dismissal of the capias and VOP charges, and the second prosecutor, who was unaware of the dismissal, incorrectly told Trial Counsel that Gaines’ VOP was still pending, and would be held in abeyance until after his trial.92 The prosecution also provided Trial Counsel with a summary of Gaines’ prior criminal history, which listed Gaines’ VOP as “pending.”93

1. No Procedural Bar To Starling’s Capias/VOP Brady Claim

Superior Court Criminal Rule 61 generally bars claims that were not raised on direct appeal. Specifically, Rule 61(i)(3) provides that “[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction ... is thereafter barred, unless the movant shows (A) [clause for relief from the procedural default and (B) [prejudice from violation of the movant’s rights.”94

As it stood when Starling filed his claim, Rule 61(i)(5) exempts from this procedural bar “a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.”95 “To invoke this exception, there must be both a claim of a constitutional violation, and a showing that the claim is ‘colorable.’”96 When considering a Brady claim, which is a constitutional claim, “[a] colorable claim of a [Brady] violation falls within this exception.”97 “When the Brady rule is violated, postconviction relief cannot be barred by Rule 61(i)(3) because a Brady violation undermines the fairness of the proceeding leading to the judgment of conviction.” 98

Because Starling had alleged a colorable claim of a Brady violation, that claim was not barred by Rule 61(i)(3) as it existed when the claim was filed.

2. The State Violated Brady By Representing To Trial Counsel That Gaines’ VOP And Capias Were Pending During Trial

In Wright v. State, we recently set forth the proper analysis for evaluating a Brady claim:

Under Brady ..., the State’s failure to disclose exculpatory and impeachment evidence material to the case violates a *333defendant’s due process rights. The reviewing court may also consider any adverse effect from nondisclosure on the preparation or presentation of the defendant’s case. There are three components of 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. In 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.99

For a Brady violation to be material such that it causes prejudice, the defendant need not show that “the disclosure of the suppressed evidence would have resulted in an acquittal.”100 The defendant must show, however, that the suppressed evidence “creates a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”101 In other words, the suppression of evidence must “undermine[] confidence in the outcome of the trial.”102 We will not reverse a conviction based on a Brady violation if there is “overwhelming evidence establishing a defendant’s] guilt.”103

In Michael v. State,104 we addressed a Brady violation in circumstances similar to this case. Defendant John Michael faced charges of attempted murder. The prosecutor was concurrently prosecuting the victim for driving- under the influence of alcohol in an unrelated criminal prosecution, and allowed the victim to plead guilty to the lesser offense of reckless driving. The prosecutor did not inform the defense of the reduced charge against the victim. The State had not reduced the charges in exchange for testimony at the defendant’s trial, and the prosecutor denied any quid pro quo for the reduction of charges.105

Even in the absence of any quid pro quo arrangement, this Court established a mandatory disclosure rule, where the failure to disclose a reduction of related or unrelated charges against a trial witness is a Brady violation:,

Whenever the State reduces any pending charges (related or not) or makes any arrangement • with any State witness, disclosure is mandatory. The State was required to disclose a reduction in [the victim’s] traffic charges and failed to do so:106

Our decision in Michael v. State leads us to the conclusion that a Brady violation occurred here. The first prosecutor secured the dismissal of the capias and VOP charges against Gaines before trial, and did not provide the information to Trial Counsel. The second prosecutor, who was unaware of the dismissal, mistak*334enly told Trial Counsel before trial that the charges remained pending. The prosecutor who requested -dismissal of the charges denied any quid pro quo for the dismissal, but was one of the prosecutors in Starling’s trial.107 The evidence would also have been material to the defense, where Gaines was the main State’s witness and no physical evidence linked Starling to the murders.108 As this Court noted in Michael v. State:

Evidence which the defense can use to impeach a prosecution witness by showing bias or interest, as well as exculpatory evidence, falls within the Brady rule. Such evidence is “evidence favorable to an accused” so that, if disclosed and used effectively, it might make the difference between conviction and acquittal. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence. Indeed, it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.109

The Superior Court ruled that the prosecution was not required to disclose the dismissal of charges because Trial Counsel allegedly knew after reviewing Gaines’ records that Gaines was on probation when Starling shot Gaines, and also knew that Gaines’ probation had been discharged. The court’s ruling, however, misapprehends Starling’s argument. Starling focuses on the State’s failure to notify Trial Counsel of the withdrawal of the capias and VOP charges, not Gaines’ discharge from probation. Trial .Counsel at some time may have seen a report of the probation discharge, but there is no proof that Trial Counsel knew that the capias and VOP charges had been dismissed against Gaines.110 Perhaps more importantly, Trial Counsel- was entitled to and did in fact rely on the prosecution’s representation and the summary of charges provided to the defense just before trial. The prosecution told Trial Counsel, and the rap sheet confirmed, that the VOP charges were pending at the time of trial and would remain pending until after trial.111 In fact, the State argued in closing that it had *335been completely forthcoming about Gaines’ criminal history: “When Alfred Gaines ... took the stand, did we hide anything about him from you? Was he — did you learn all about his criminal past?”112 The State also argued that Gaines motive for testifying arose from-his “decision to try and give some peace to a "couple of families of murder victims and come forward with what he said. You saw Alfred Gaines testify. It is your judgment on credibility that most matters.”113

The Superior Court also ruled that it was unlikely that Trial Counsel would have used the information to impeach Gaines, and therefore Starling did not suffer prejudice from the Brady violation. Specifically, the court found that Trial Counsel “properly avoided making this presentation to the jury which would have implicated Starling in another shooting.”114 The court was referring - to the shooting in Chester, where Starling • allegedly ■ shot Gaines while Gaines was on probation. Starling allegedly shot Gaines in retaliation for Gaines’ shooting of Starling’s acquaintance in Wilmington the day before.'115 According to the court, Trial Counsel and the State had an agreement not to mention the Chester shooting at trial. The court inferred from this agreement that raising the Chester shooting at trial would have abrogated the agreement and opened the door to the State questioning Gaines about the circumstances of the shooting, including testimony from Gaines that Starling shot him. We are unconvinced that any of these reasons would have prevented Trial Counsel from using the Brady material to impeach Gaines at trial.

As an initial matter, the State and Trial Counsel did not have an agreement not to mention the Chester shooting at trial. A Chester police detective testified at trial that Gaines was shot in Chester.116 Gaines also testified that.after being shot in Chester he decided to tell the police about the Wilmington shooting.117- Instead, counsel agreed that Gaines could not testify that Starling shot him in, Chester.118 . The agreement would not have prevented Trial Counsel from impeaching Gaines with the dismissal of the capias and the YOP charges. -

Further, questioning Gaines about the VÓP charge would not necessarily have opened the door for the prosecution to question Gaines about the Chester shooting. Both the State and Starling were at risk if either party opened the door to the Chester shooting details. If the State asked to pursue the details of the Chester shooting, Gaines, the State’s main witness whose credibility was at stake, would also be questioned about the Wilmington shooting, where he allegedly shot Starling’s acquaintance the day before; This ■ standoff in all likelihood led’ to - the agreement between counsel. In any event, Trial Counsel" was never in the position to make a strategic call on the use of the evidence, because he was’ unaware of it. We note that Trial Counsel testified that had he been aware of the Brady information, he would have used the information to im*336peach Gaines at trial.119

The judge at Starling’s trial was keenly-focused on issues that would arise if either the prosecution or the defense opened the door to the details of the Chester and Wilmington shootings. The main trial could have turned into a “mini-trial” of the Chester and Wilmington shootings.120 To prevent this, the trial judge had options for allowing the impeachment to be used by Trial Counsel, while permitting the State a fair opportunity to respond, without abrogating the agreement between counsel. For example, the trial judge could have permitted Trial Counsel to impeach Gaines using the dismissal of the capias and VOP charge. Consistent with counsel’s agreement, the State would be able to respond with what it contended was the reason the capias and VOP charges were dismissed — not for any quid pro quo with Gaines but instead “because Gaines was not able to comply because he’d been shot.”121 All of this examination could be done without referring to the shooter in either alleged shooting.

E. The Cumulative Effect Of Ineffective Assistance Of Counsel And The Brady Violation Undermines Our Confidence In The Verdict

Counsel’s ineffective performance under Strickland for failing to object to Michael’s statement and for failing to effectively examine Moore, combined with the State’s Brady violation, undermines our confidence in the verdict. The touchstone of either test, Strickland or Brady, is the fairness of the trial.122 Where there are multiple material errors in a trial, the Court must weigh them cumulative effect and determine if, combined, they are “prejudicial to substantial rights [so] as to jeopardize the fairness and integrity of the trial process.”123 The relevant inquiry is, after considering the errors, “whether we can be confident that the jury’s verdict would have been the same.”124 We find that the procedural errors in this case resulted in an unfair trial.

Gaines was the State’s main witness, and his credibility was already at risk due to his criminal record and the Wilmington shooting. Trial Counsel could have used the dismissal of the capias and VOP charges to counter Gaines’ testimony that it was a concern for the victims’ families that brought him to testify. As noted in Michael v. State, impeachment evidence of this kind can make the difference between conviction and acquittal. Counsel’s ineffectiveness also deprived Starling of two major avenues of attack on the credibility of the State’s corroborating witnesses. Substantial issues existed about the volun-tariness of Michael’s statement to police, and Trial Counsel would have risked nothing by objecting to the statement and demanding a voluntariness hearing. Trial Counsel also forgot to ask the eyewitness with perhaps the best view of the shooter about his review of Starling’s photograph and statement that Starling did not look like the shooter. The cumulative effect of *337these mistakes, unintentional as they may be, requires reversal, and a remand for a new trial. Because we have found reversible error on the foregoing grounds, we.do not reach Starling’s other claims.

IV. CONCLUSION

Darnell Evans and Damon Gist, Jr. were the victims of a heinous and violent crime. Starling stands accused of the murders and must face trial. Like all citizens, he is entitled to a fair trial that adheres to procedural requirements with effective representation. Because those procedural requirements were not met, and counsel defending him was ineffective, we are compelled to reverse and remand for a new trial and proceedings not inconsistent with this opinion.

The judgment of the Superior Court is reversed and this matter is remanded for a new trial.