Morales-Garcia v. State

EFiled: Feb 03 2026 03:22PM EST
Filing ID 78377098
Case Number 311,2024
IN THE SUPREME COURT OF THE STATE OF DELAWARE

YONY MORALES-GARCIA, §
§ No. 311, 2024
Defendant Below, §
Appellant, § Court Below–Superior
§ Court of the State of
v. § Delaware
§
STATE OF DELAWARE, § Cr. ID No. 2201010642(S)
§
Appellee. §
§

Submitted: November 5, 2025
Decided: February 3, 2026

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW, and
GRIFFITHS, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court of the State of Delaware. REVERSED and
REMANDED.

Kimberly A. Price, Esq. (argued), COLLINS PRICE WARNER WOLOSHIN,
Wilmington, Delaware, for Appellant Yony Morales-Garcia.

Julie M. Donoghue, Esq. (argued) and Kenneth J. Nachbar, Esq., DELAWARE
DEPARTMENT OF JUSTICE, Wilmington, Delaware, for Appellee State of
Delaware.

GRIFFITHS, Justice:
On January 22, 2022, two masked men dressed in dark clothing entered a

crowded restaurant in Sussex County, Delaware. After one of the men ripped

jewelry from around a restaurant patron’s neck, the other man shot and killed two

people. The State’s theory of the crime was that Appellant Yony Morales-Garcia

pulled the trigger to protect his brother, Emner Morales-Garcia, who confessed to

stealing the jewelry.

The Morales-Garcia brothers were scheduled to be tried separately. Emner

accepted a plea offer before trial, pleading guilty to first-degree robbery and second-

degree conspiracy. Yony proceeded to trial, and the jury deadlocked. In Yony’s

second trial, the jury convicted him of seventeen counts, including two counts of

first-degree murder. Yony appealed to this Court, raising two claims.

First, Yony claims that the State engaged in two instances of prosecutorial

misconduct during trial. The first time was when the State divulged in its opening

statement that Emner had “admitted to this crime already” and pleaded guilty to the

robbery. The second time was when the State elicited testimony from a detective

that Emner had already pleaded guilty to both robbery and conspiracy.

Yony’s second claim is an alternative argument. He contends that even if it

was proper for the State to mention Emner’s admission of guilt to the jury, it was

plain error for the court not to instruct the jury of the limited purpose for which it

could consider Emner’s guilty plea. We agree with Yony that the State’s repeated

2
references to Emner’s guilt was improper, violated his substantial rights, and

jeopardized the fairness and integrity of the trial process. We therefore reverse his

convictions and remand for a new trial.

BACKGROUND1

As we summarize the trial record, we are mindful that the record contains

conflicting narratives.

On January 22, 2022, Jose Ortiz-Perez began drinking around noon at a

restaurant on DuPont Highway in Sussex County, Delaware. Jose invited his

brother, Feliciano “Ely” Ortiz to join him at the restaurant for lunch. Two other

acquaintances joined them as well. By the time Jose left the restaurant, he had

consumed “more than 15 beers”2 and his recollection of the night was a “little bit

fuzzy.”3

By early evening, several other groups were seated in the restaurant. Seferino

“Frank” Garza and his friends were seated at a table near the restaurant’s backdoor.

Frank’s table included Armando Chilel-Lopez. At another table, a father and his son,

Andy Velasquez, sat and chatted with friends.

1
Because multiple individuals in this case have the same last name, we will use first names, after
the individual has been introduced, to avoid confusion.
2
App. to Opening Br. at A437 [hereinafter “A__”] (Trial Tr. 123:9–22 (Jose Ortiz-Perez)
[hereinafter “Tr.”]).
3
A438 (Tr. 124:13–22) (Jose Ortiz-Perez).

3
Back at his table, Jose was drunk.4 He angrily spewed profanities and argued

with patrons.5 For reasons unknown, Jose pointed at Andy and shouted – “Andy,

I’m going to [f…] you up!”6 Jose’s belligerence resulted in the owner of the

restaurant asking Jose, Ely, and their friends to leave. As Ely walked out of the

restaurant, he threatened Andy’s table. While Jose’s party stood outside the

restaurant, Honorio Velasquez walked in and sat at Andy’s table.

Outside the restaurant, Ely was ready to fight and was “looking for trouble.”7

He called Yony Morales-Garcia for “backup.”8 Ely told Yony that Andy was at the

restaurant. Ely knew that Yony and his brother, Emner Morales-Garcia, held a

grudge against Andy from a prior dispute. Yony drove to the restaurant with Emner

to meet Ely.

Before the Morales-Garcia brothers arrived, Jose’s party piled into a grey Ford

pickup truck and drove to a liquor store. Afterwards, Ely returned to the restaurant

but parked next door at a gas station. Ely claims that he did so because a friend

thought he left his car keys inside the restaurant. Yet no one in their party entered

4
See, e.g., A383–85 (Tr. 69:6–71:22) (Aroldo Figuero Perez); A431 (Tr. 117:21–22) (Selvin
Morales-Ortiz); A463 (Tr. 149:16–18) (Frank Garza).
5
A461, A463, A489–90 (Tr. 147:12–16, 149:16–18, 175:20–176:5) (Frank Garza).
6
A537, A562–64 (Tr. 26:1–12, 51:12–53:5) (Andy Velasquez).
7
A663 (Tr. 152:1–6) (Ely Ortiz).
8
A592–93 (Tr. 81:17–82:23) (Ely Ortiz).

4
the restaurant.9 Instead, they rummaged around inside the Ford until one of the men

exited from the vehicle and searched the ground briefly.10

Ely claimed that he peered through the restaurant’s entrance doors to see if the

keys were still at their table; they were not there. He then walked to a nearby

convenience store and purchased a soda.11 Before entering the store, Ely removed a

balaclava mask that he was wearing so that he did not appear suspicious. The mask

belonged to Jose and, when worn, covered Ely’s entire face except for his eyes and

eyebrows. When Ely returned to the Ford, Yony called him to say that he was almost

there. Ely then drove the Ford around to the back of the gas station and parked along

the side of a used car lot. Ely knew parking there would make the Ford more difficult

to see from the highway.12 Shortly thereafter, Yony and Emner pulled into the

restaurant’s parking lot in a black Kia sports utility vehicle.

At this point, Ely’s and the Morales-Garcia brothers’ accounts of who went

inside the restaurant diverge. According to Ely, he walked over to the Kia in the

restaurant’s parking lot. The Kia was still running. Yony sat in the front passenger

seat, and Emner sat in the backseat. Ely said that he got into the Kia’s driver’s seat,

9
A657–59 (Tr. 146:17–148:21) (Ely Ortiz).
10
State’s Ex. 41 (Security Video from used car lot 22:00–24:53).
11
A664–65 (Tr. 153:2–154:23) (Ely Ortiz); see also State’s Ex. 39 (Convenience Store Security
Video 00:35–02:22) [hereinafter “Convenience Video”].
12
A674 (Tr. 163:20–22) (Ely Ortiz).

5
shifted the vehicle into reverse, and maneuvered it to the side of the restaurant. Yony

and Emner got out of the Kia and entered the restaurant while Ely waited in the

vehicle. Ely claimed to have a view of the restaurant’s storefront and watched as

Yony and Emner entered. He did not see anyone enter behind them. He could not

see inside the restaurant or the Ford parked on the side of the used car lot. Ely claims

that he did not witness Yony holding a firearm at any point.13 Yony tells a different

story.

According to Yony, after he parked the Kia in the restaurant’s parking lot,

Emner told him to wait in the vehicle. Yony turned on the radio and listened to

music. As Emner walked towards the restaurant, Ely intercepted him in the parking

lot. Ely was apparently angry. Ely asked Emner to go into the restaurant and steal

Frank’s crucifix pendant and gold chain from around his neck. Ely wanted to steal

the items because the people at Frank’s table had disrespected him earlier that day.

Ely pointed Frank out in the restaurant.

Emner, who admitted he was “a little tipsy,” thought it was a “joke.”14 Ely

handed Emner a balaclava mask, which Emner wore as he walked into the restaurant.

Emner felt someone enter the restaurant behind him, but he did not turn around. That

person was masked and pointed a firearm at a waitress.

13
A679 (Tr. 168:10–12) (Ely Ortiz).
14
A710 (Tr. 199:2–4) (Emner Morales-Garcia).

6
Emner rushed toward Frank’s table, reached across it, and yanked a crucifix

pendant and gold chain from around Frank’s neck. Frank did not see Emner reach

across his table because he was talking with someone beside him. Frank yelled

instinctively. Armando went after Emner. Emner attempted to run back out of the

restaurant’s entrance but stumbled and fell to the floor. As he lifted himself up off

the floor, he heard a firearm discharge.

Frank screamed for everyone to drop to the floor for cover. The second

masked man was still standing at the restaurant’s entrance with the firearm. Andy

saw the man aim the firearm at Armando and then watched as Armando went limp

and fell to the ground. He then witnessed the same fatal sequence happen to

Honorio. After Emner and the gunman left the restaurant, Frank rushed over to

Armando and Honorio and yelled at the restaurant owner to call 911.

Ely’s and the Morales-Garcia brothers’ accounts of what occurred following

the shooting also differ. According to Ely, Emner and Yony returned to the Kia and

told him that there was a problem and that they needed to leave. Ely claimed that he

did not hear any gunshots or “anything that surprised [him]” while he waited, despite

sitting in the Kia right next to the restaurant.15 He claimed that the windows were

closed and that he was listening to the radio.

15
A606–07 (Tr. 95:22–96:3) (Ely Ortiz).

7
According to the Morales-Garcia brothers, Emner and Ely ran back to the

vehicle minutes after Emner had left to search for Ely. They both got into the Kia

and told Yony to “drive.”16 Emner sat in the front passenger’s seat, and Ely sat in

the backseat. Yony described Ely as “acting weird” and “paranoid.”17 No one talked.

Emner claimed that he was too scared to turn around to see if Ely was wearing, or

holding, a mask.

Delaware State Police (“DSP”) dispatched Trooper First Class Kenny Haynes.

When he arrived at the scene, Trooper Haynes assessed the condition of the shooting

victims. While Trooper Haynes tended to the wounded, Georgetown Police

Department Master Corporal Kenneth W. Rogers collected evidence. DSP Detective

Daniel Grassi eventually arrived and served as lead investigator. He secured the

scene and assigned duties to the other investigators.

In his search for evidence, Trooper Haynes found a brass cartridge casing on

the floor of the restaurant, but he did not find a firearm. The search for evidence

also included gathering video footage. There were no working cameras inside the

restaurant or outside on its premises. However, Detective Grassi was able to recover

video footage from a convenience store and liquor store located north of the

restaurant. He was also able to recover video footage from the used car lot. The

16
A769 (Tr. 258:14–19) (Yony Morales-Garcia).
17
A769 (Tr. 258:2–23) (Yony Morales-Garcia).

8
liquor store footage recorded the Ford parked in front of it before the shooting.

Detective Grassi confirmed that Jose owned the Ford. Detective Grassi also

confirmed through the convenience store footage that Ely had walked in and

purchased a drink. That footage showed Ely meeting with Jose outside as well.18

The police also interviewed the restaurant’s patrons. Patrons described the

masked man who stole Frank’s gold chain as having two shaved lines in one of his

eyebrows. They also said that the man wore a black jacket, hoodie, and black mask.

No one was able to offer a clear description of the gunman. One patron described

the gunman as having black hair, and another said he was taller than the other masked

man.

The next day, after he heard that both victims had died, Emner buried his

clothes and the gold chain in his backyard.19 Emner then messaged Ely and told him

not to tell law enforcement about his involvement in the shooting. This message

caused Ely to become concerned. He began to worry that the Morales-Garcia

brothers might frame him. To make sure the Morales-Garcia brothers did not “pin”

the deaths on him, Ely went to talk to the police.20

18
A286–87 (Tr. 83:1–84:23) (Det. Grassi); see also Convenience Video 00:35–02:22.
19
A743 (Tr. 232:16–23) (Emner Morales-Garcia).
20
A687–88 (Tr. 176:12–177:11) (Ely Ortiz).

9
Ely spoke with Detective Grassi. Based on Ely’s account of the evening,

Detective Grassi drafted an arrest warrant for Emner and Yony and arrested them.21

Detective Grassi interviewed Emner after his arrest. Emner told Detective Grassi

that he had buried a black duffle bag containing his denim jeans, Timberland boots,

and the gold chain in his backyard.22

Emner and Yony were indicted jointly on seventeen counts: two counts of

first-degree murder, seven counts of possession of a firearm during the commission

of a felony, one count of first-degree robbery, three counts of first-degree reckless

endangering, one count of aggravated menacing, one count of carrying a concealed

deadly weapon, one count of wearing a disguise during the commission of a felony,

and one count of first-degree conspiracy.23

In January 2023, the court ordered that the Morales-Garcia brothers be tried

separately.24 Emner accepted a plea offer from the State, pleading guilty to first-

degree robbery and second-degree conspiracy.25 Yony’s case proceeded to trial in

December 2023; however, the court declared a mistrial after the jury deadlocked.26

21
See A621–22 (Tr. 110:11–111:5) (Ely Ortiz); see also A17–24 (Det. Grassi’s Arrest Warrant
dated Jan. 27, 2022).
22
A289–A292 (Tr. 86:18–89:18) (Det. Grassi).
23
A1 (Super. Ct. Dkt. at 1); A25–31 (Indictment by Grand Jury dated Feb. 15, 2022).
24
A6 (Super. Ct. Dkt. No. 38).
25
A757–58 (Tr. 246:20–247:22) (Emner Morales-Garcia).
26
A9–10 (Super. Ct. Dkt. No. 63).

10
The State retried the case in May 2024.27 Following the presiding judge’s

introductory remarks, the second trial began with the State’s opening statement in

which the prosecutor told the jury:

And when [Emner] tripped, the defendant opened fire in the direction
toward his brother to protect his brother. Emner has actually admitted
to this crime already and has pled guilty to the robbery of that chain.
He also told Detective Grassi where to find the chain and some of the
items of clothing that he was wearing that night. . . . [Emner] walked
up to Frank and ripped the chain, as I said, and as he tripped his brother,
the defendant, was nervous that the guys that he just stole from were
going to attack him, so he opened fire.28

The prosecutor made these statements even though the State did not intend to call

Emner as a witness during its case-in-chief. The State also did not know whether

Emner would testify at all because it had not received a defense witness list.29

Additionally, during the State’s case-in-chief and before Emner testified, the

prosecutor elicited the following testimony from Detective Grassi:

State: And did you have another opportunity to actually speak
with Emner after that night?
Grassi: Yes, on January 30th.

27
A12 (Super. Ct. Dkt. No. 83).
28
A210 (Tr. 7:11–23) (emphasis added).
29
Oral Arg. 27:41–54 (July 9, 2025), available at
https://courts.delaware.gov/supreme/oralarguments/ [hereinafter “July Oral Arg.”] (State
conceded at oral argument that it did not receive a witness list from the defense). The State did
receive a defense witness list for the first trial. A91 (Final Case Rev. Tr. 14:1–7) (prosecutor
informing the court that she had received a copy of the defense witness list for the first trial).

11
State: Okay. And has Emner Morales Garcia resolved his
charges in this case?
Grassi: Yes.
State: Are you aware of what the result of those -- of that was?
Grassi: He pled guilty with the lead charge being robbery first.
...
State: You indicated Mr. Emner Morales Garcia pled to the lead
charge of robbery first degree. Are you aware if he pled to
any additional charges?
Grassi: He did plead to another charge. I just don't have it in front
of me. I don’t know what the additional charge was.
State: And --
Grassi: I believe – I’m sorry. I believe it was conspiracy, but
again, I don’t have the sheet in front of me.
State: Okay. Thank you.30

The prosecutor elicited testimony from Detective Grassi that Emner pleaded

guilty to “conspiracy” in addition to first-degree robbery. The prosecutor had not

mentioned the conspiracy guilty plea in her opening statement.

After Detective Grassi’s testimony, Yony’s case-in-chief began, and defense

counsel called Emner to the stand.31 During Emner’s direct examination, he implied

that Ely was the shooter because “Ely was the only other person I spoke to before I

went into the restaurant [].”32

30
A696, A698 (Tr. 185:3–12, 187:3–13) (Det. Grassi).
31
A706 (Tr. 195:11–13).
32
A721 (Tr. 210:17–23) (Emner Morales-Garcia).

12
During Emner’s cross-examination, the following (abridged) exchange

occurred:

State: You were ultimately arrested on criminal charges, correct?
Emner: Yes.
State: And you pled guilty to robbery for stealing Mr. Garza’s
necklace, correct?
Emner: I wasn’t going to take a plea. You guys had offered
manslaughter, robbery, and conspiracy plea. My lawyer
came back and he told me that you guys had offered that
and that was your last offer. And I told him: Well, you
know, I want to go to trial and at least prove my innocence
on the part that those two individuals that were shot I had
nothing to do with that.
...
State: The question was: You pled guilty to robbery, correct?
...
Emner: Yes, I took the plea because after my lawyer came back
with the plea that you guys had offered -- the manslaughter
plea -- I told him no. I didn’t want to take no plea. I
wanted to go to trial. And a couple weeks before the trial,
he came back and he told me that you guys offered another
plea, which was robbery, and he told me that there was no
point in going to trial because, at the end of the trial even
if I prove my innocence on the murder charge, I was still
going to have to do the time for the robbery charge because
I confessed into [sic] taking the chain. So, yes, I did take
the robbery charge for that reason.
State: It was that robbery that you pled to that led to a double
murder, correct?
Emner: Yes.
State: You also pled guilty to conspiracy in the second degree,
correct?
Emner: Yes.

13
State: Conspiracy is agreeing to commit a crime with someone
else, correct?
Emner: Well if that’s what you call the conversation -- yes, if that’s
what you call the conversation that me and Ely had, then,
yes.33

Following Emner’s testimony, Yony took the stand. Yony denied that he was

the gunman.34 He also confirmed that Emner pleaded guilty to robbery for stealing

Frank’s gold chain.35 The jury convicted Yony on all seventeen counts, including

two counts of first-degree murder.36

Yony appealed to this Court, raising two claims. He first argues that the

prosecutor committed two instances of prosecutorial misconduct that substantially

prejudiced his right to a fair trial.37 The first instance was the prosecutor’s remarks

in her opening statement that Emner had pleaded guilty to robbery and “admitted to

this crime already,” both of which she placed between statements claiming that Yony

was the shooter. The second instance was during the State’s case-in-chief – before

Emner testified – when the prosecutor elicited testimony from Detective Grassi that

Emner had pleaded guilty to first-degree robbery and “conspiracy.” Yony’s second

contention is that, even if the prosecutor’s conduct during trial was proper, it was

33
A756–58 (Tr. 245:3–247:22) (Emner Morales-Garcia).
34
A773 (Tr. 262:9–21) (Yony Morales-Garcia).
35
A774 (263:2–4) (Yony Morales-Garcia).
36
A944–47 (Completed Jury Verdict Sheet).
37
Opening Br. 38 (Feb. 28, 2025) [hereinafter “Opening Br.”].

14
plain error for the court not to give a limiting instruction sua sponte. Yony argues

that the instruction would have lessened the resulting prejudice by advising the jury

of the limited purpose for which it could consider Emner’s guilty plea.

The State counters Yony’s appeal with four arguments. First, the State argues

that Yony forfeited his right to claim prosecutorial misconduct by not objecting to

the State’s opening statement or Detective Grassi’s testimony about Emner’s guilty

plea.38 The State also argues that Yony waived his right to claim misconduct when

his trial counsel made a tactical decision not to object to hearsay testimony given by

Detective Grassi.39 Second, the State argues that the references to Emner’s guilty

plea did not constitute prosecutorial misconduct because the references were not

used as substantive evidence to prove Yony was the shooter.40

The State’s third argument is that, even if prosecutorial misconduct occurred,

reversal is unwarranted because the State introduced “overwhelming evidence” of

Yony’s guilt.41 The State’s fourth and final argument is that the Superior Court’s

failure to issue a limiting instruction to the jury did not constitute plain error because

Yony was not prejudiced by the error.42

38
Answering Br. 20–21 (Mar. 31, 2025) [hereinafter “Answering Br.”].
39
Id. at 18–21.
40
Id. at 21–23 (quoting Allen v. State, 878 A.2d 447, 450 (Del. 2005)).
41
Id. at 24.
42
Id. at 29–30. In July 2025, this Court requested supplemental briefing. See Supr. Ct. Letter to
counsel dated July 14, 2025. Both parties submitted timely supplemental briefs. In its

15
STANDARD OF REVIEW

Whether we review a claim of prosecutorial misconduct for plain error or

harmless error depends on whether the defendant fairly raised the issue below.43

Yony did not raise the issue below, so we review for plain error. Recently, in Suber

v. State, we restated the plain error standard of review. There, we posed four

questions that have traditionally formed the plain error standard.44 We start with two

threshold questions.45 The first question is whether an adequate record exists for this

Court to review the issue on appeal.46 The second question is whether “there [was]

an error.”47 That is, we ask whether the party “knowingly and intelligently waived”

supplemental brief, the State departed from its argument that the defense calling Emner alleviated
any prejudice. See Defendant’s Suppl. Br. 7 (Aug. 15, 2025), and State’s Suppl. Br. 5 (Aug. 15,
2025) [hereinafter “State’s Suppl. Br.”] (agreeing that Allen should apply regardless of whether the
State or defense calls the co-defendant).
Following the supplemental briefing, this Court held a second oral argument on this appeal
in November 2025. At the second oral argument, the State conceded that we should vacate Yony’s
conviction for first-degree conspiracy. Oral Arg. 22:30–38 (Nov. 5, 2025), available at
https://courts.delaware.gov/supreme/oralarguments/ [hereinafter “Nov. Oral Arg.”]; see also
A944–47 (Completed Jury Verdict Sheet). The State made this concession because: (1) the jury
was not instructed on an element of first-degree conspiracy, and (2) the indictment’s seventeenth
count, which charged Yony with first-degree conspiracy, was a mistake and should have been
second-degree conspiracy. Nov. Oral Arg. 20:05–22, 22:13–38; see also A944–47 (Completed
Jury Verdict Sheet). Nevertheless, the State remained resolute at oral argument that the prosecutor
did not commit misconduct or violate Allen and, even if the prosecutor did, her conduct did not
constitute plain error.
43
Baker v. State, 906 A.2d 139, 148 (Del. 2006).
44
Suber v. State, __A.3d__, 2026 WL 184867, at *5 (Del. Jan. 15, 2026).
45
Id.
46
Id.
47
Id.

16
the right.48 The State carries the burden of proving waiver and we make “every

reasonable presumption against waiver.”49

If an adequate record exists and the party did not waive the right, we then

proceed to Suber’s third question for forfeited errors, which asks whether the error

was plain.50 An error is plain if it violates “current law.”51 The state of the current

law is determined from the appellate court’s point of view when reviewing the trial

record, not from the trial court’s perspective.52

If we find that the error was plain, we proceed to Suber’s fourth, and final,

question. That question is “whether the error adversely affect[ed] the substantial

rights of the party.”53 “To affect the substantial rights of a party, the error must ‘be

so clearly prejudicial as to jeopardize the fairness and integrity of the trial

process.’”54 An error is clearly prejudicial when there is a “reasonable probability

48
Id.
49
Id. (quoting Flamer v. State, 490 A.2d 104, 113 (Del. 1983)).
50
Id. at *5 & n.27 (“Waiver is often used to describe forfeiture, but the two are distinct concepts.
. . . [W]aiver is the knowing and intelligent waiver of a right. Forfeiture, on the other hand, ‘is the
failure to make the timely assertion of a right.’ Waived issues are not reviewed for plain error. A
forfeited error can lead to reversal but is subject to plain-error review.” (citation omitted) (quoting
Purnell v. State, 254 A.3d 1053, 1101 (Del. 2021))).
51
Id. at *5.
52
Id.
53
Id. at *6.
54
Id. (quoting Johnson v. State, 813 A.2d 161, 165 (Del. 2001)).

17
that, but for the error, the outcome of the proceeding would have been different.”55

The defendant bears the burden of proving prejudice under this question.56 When

the error involves jurisdiction or is otherwise a structural constitutional error, we

presume this fourth question is satisfied.57

ANALYSIS

We apply the Suber questions in turn, determining whether: (a) the trial record

is adequate; (b) the claims were forfeited or waived; (c) the claimed misconduct

violates current law; and (d) there is a reasonable probability that, but for the

misconduct, the outcome would have been different.58

A. Adequacy of the Record

The trial record is adequate to review Yony’s claims. Both instances of alleged

misconduct are contained in the trial transcript. And, unlike Swanson v. State, the

State was not precluded from creating an evidentiary record in the trial court.59 In

Swanson, this Court declined to review a defendant’s argument on appeal that the

55
Id. (quoting Greer v. United States, 593 U.S. 503, 507–08 (2021)) (internal quotation marks
omitted).
56
Id. If we find that the misconduct does not warrant reversal under Suber, we proceed to a Hunter
v. State analysis. In Hunter, we held that a prosecutor’s repeated “improper comments,” which
we had prohibited in past decisions, required reversal. Hunter v. State, 815 A.2d 730, 738 (Del.
2002). The repetitive misconduct must be the “same errors over multiple trials.” Saavedra v.
State, 225 A.3d 364, 383 (Del. 2020). Yony conceded at oral argument that Hunter does not apply
here. July Oral Arg. 17:49–18:39.
57
Suber, 2026 WL 184867, at *6 & n.32.
58
Id. at *5–6.
59
Id. at *5 (quoting Swanson v. State, __A.3d__, 2025 WL 3778943, at *2 (Del. Dec. 31, 2025)).

18
search of his person violated the Fourth Amendment, as he did not move to suppress

the evidence before the trial court.60 There, we warned that it was fundamentally

unfair for Swanson to argue for the first time on appeal that the State had insufficient

evidence to search him when the State would have introduced evidence to counter

the argument at a suppression hearing.61 Here, the State was not disadvantaged by

the lack of a record.

B. Waiver of Claims

Yony did not waive his right to claim prosecutorial misconduct. The State

attempts to cast Yony’s failure to object as a tactical decision to avoid emphasizing

Emner’s guilty plea.62 The record does not support the State’s assumption as to

Yony’s trial strategy. Due to this lack of support, the State attempts to draw a

comparison to a different, express tactical decision made by defense counsel at

trial.63 Following Detective Grassi’s hearsay testimony, defense counsel spoke at

sidebar with the court:

Court: [Defense counsel], I want to direct this to you. There’s
been some hearsay that’s been elicited about what Emner
Morales-Garcia said. I assume that your failure to object
is a tactical decision.

60
Swanson v. State, __A.3d__, 2025 WL 3778943, at *2 (Del. Dec. 31, 2025).
61
Id. at *3.
62
Answering Br. 20.
63
Id. at 18–21.

19
Defense: I have him listed as a witness. I plan on calling him as a
witness.
Court: All right. Very good.64

Counsel’s apparent agreement that he made a tactical decision not to object

concerned Emner’s statement about where he had hidden the duffle bag and had no

relation to the prosecutor’s opening remarks or the testimony elicited about Emner’s

guilty plea. As Yony correctly notes, defense counsel’s “tactical decision not to

object to a certain portion of testimony does not mean that he made a tactical decision

not to object to other portions of it.”65 Because Yony did not waive his claims, we

consider the error forfeited—he failed to make a timely assertion of his right—and

we proceed to Suber’s third question and consider whether the error was plain.66

C. Prosecutorial Misconduct

We find that the prosecutor’s remarks during the State’s opening statement

and her eliciting testimony about Emner’s guilty plea are both plain errors under

Allen v. State. In Allen, the defendant and his co-defendants, Isaiah Howard and

Kevin McCray, were indicted on twenty charges arising from three different

burglaries.67 Before trial, Howard and McCray pleaded guilty to lesser charges.68

64
A293 (Tr. 90:4–11).
65
Reply Br. 4 (Apr. 15, 2025).
66
Suber, 2026 WL 184867, at *5 & n.27.
67
Allen v. State, 878 A.2d 447, 449 (Del. 2005).
68
Id.

20
At trial, Howard testified for the prosecution about his plea agreement.69 McCray

did not testify.70 Following Howard’s testimony, the prosecutor did not introduce

Howard’s written plea agreement into evidence.71 Instead, the prosecutor moved to

introduce McCray’s plea agreement.72 The defendant objected and argued that the

State was using McCray’s guilty plea agreement to improperly bolster Howard’s

testimony.73

This Court held in Allen that a co-defendant’s written plea agreement—like a

co-defendant’s conviction—is not generally admissible in a defendant’s trial.74

Specifically, we held that a “co-defendant’s plea agreement may not be used as

substantive evidence of a defendant’s guilt, to bolster the testimony of a co-

defendant, or to directly or indirectly vouch for the veracity of another co-defendant

who pled guilty and then testified against his or her fellow accused.”75 We permitted

a co-defendant’s guilty plea to be introduced into evidence for three limited

purposes: “allowing the jury to accurately assess the credibility of the co-defendant

witness, to address the jury’s possible concern of selective prosecution[,] or to

69
Id.
70
Id.
71
Id.
72
Id.
73
Id.
74
Id. at 450.
75
Id.

21
explain how the co-defendant witness has first-hand knowledge of the events about

which he or she is testifying.”76 The foundational principle underlying Allen is the

right of every defendant to stand or fall with the proof of the charge
made against him, not against somebody else. The defendant has a right
to have his guilt or innocence determined by the evidence presented
against him, not by what has happened with regard to a criminal
prosecution against someone else.77

Although this matter does not concern the introduction of a written plea agreement

into evidence, the same foundational principle applies. The State’s verbal reference

to a co-defendant’s guilty plea introduces the same prejudicial information to the

jury that, as in Allen, risks the jury convicting a defendant based on a co-defendant’s

admission of guilt rather than on the evidence of the defendant’s guilt.

The prosecutor’s intentional admission of inadmissible evidence violated

prosecutorial standards.78 When assessing the propriety of a prosecutor’s trial

tactics, we have been guided by American Bar Association standards.79 We

previously adopted a portion of Standard 3–6.6 (“Presentation of Evidence”), which

76
Id. at 450–51.
77
United States v. Gambino, 926 F.2d 1355, 1363 (3d Cir. 1991) (quoting Bisaccia v. Attorney
General of New Jersey, 623 F.2d 307, 312 (3d Cir. 1980)) (citation modified).
78
Allen, 878 A.2d at 450.
79
Watson v. State, 303 A.3d 37, 44–45 (Del. 2023); see also Bunting v. State, 907 A.2d 145, 2006
WL 2587074, at *3 (Del. Sep. 7, 2006) (TABLE) (“We have not stated an all-inclusive definition
of prosecutorial misconduct.”); Reyes v. State, 315 A.3d 475, 489 (Del. 2024) (characterizing the
prosecutorial standards and our precedent as “guideposts”).

22
precludes a prosecutor from highlighting inadmissible matters for the fact finder.80

We now adopt a relevant portion of Standard 3–6.5 (“Opening Statement at Trial”),

which restricts what the State may reference in its opening statement.81

We address each instance of misconduct separately below.

1. The Opening Statement

We hold that the State’s remarks in its opening statement amounted to

prosecutorial misconduct.82 The State knew, or should have known, that it was

impermissible to inform the jury that Emner “admitted to this crime already and has

pled guilty to the robbery of that chain” between two statements that Yony fired a

firearm to protect Emner.83 Indeed, at oral argument in this Court, the State

80
Watson, 303 A.3d at 44–45 (“The prosecutor should not bring to the attention of the trier of fact
matters that the prosecutor knows to be inadmissible, whether by offering or displaying
inadmissible evidence, asking legally objectionable questions, or making impermissible comments
or arguments. . . .” (citation omitted)).
81
Crim. Justice Standards for the Prosecution Function Standard 3–6.5(b), Am. Bar Ass’n (2017),
available at
https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEditi
on/ [hereinafter “Standard”] (“The prosecutor’s opening statement at trial should be confined to a
fair statement of the case from the prosecutor’s perspective, and discussion of evidence that the
prosecutor reasonably believes will be available, offered and admitted to support the prosecution
case. The prosecutor’s opening should avoid speculating about what defenses might be raised by
the defense unless the prosecutor knows they will be raised.”).
82
Because prosecutorial misconduct can occur absent intent or malice, this finding is not meant as
a statement on the prosecutor’s culpability. See, e.g., Trala v. State, 244 A.3d 989, 1000 (Del.
2020) (“The prosecutor has a duty to take care that the argument the State presents to the jury
stands or falls on its own merit, rather than relying, even unintentionally, on the respect and
deference to which the public gives the prosecutor’s office.” (emphasis added)); Flemming v.
Warden, 2012 WL 3693859, at *33 (E.D. Cal. Aug. 24, 2012) (“Prosecutorial misconduct does not
require a showing of bad faith or wrongful intent.”).
83
A210 (Tr. 7:11–23) (emphasis added).

23
acknowledged that these remarks were an “unfortunate decision” that “should not

have happened.”84 The remarks violated our decision in Allen v. State, as well as

prosecutorial standards.85

In our view, the prosecutor’s reference to Emner’s guilty plea in her opening

statement served to suggest that the jury infer that Yony was guilty because Emner

was guilty. As in Allen, we therefore “have no basis to conclude” that the jury did

not use Emner’s guilty plea as substantive evidence of Yony’s guilt.86

The State argues that this Court has previously held that a prosecutor’s

“negligible reference” to a co-defendant’s case outcome was not prosecutorial

misconduct.87 This is true. However, the cases cited by the State, Dillard v. State

and Wheatley v. State, are both factually distinguishable. In Dillard, the prosecutor

told the jury: “You saw and heard some things about other defendants. Those other

defendants have resolved their cases. The case today is only about Mr. Dillard and

his actions during this case and how he is involved.”88 In Wheatley, the prosecutor

informed the jury “that the defendant had an altercation with a co-defendant tried

84
July Oral Arg. 21:20–40.
85
Allen, 878 A.2d at 450.
86
Id. at 451.
87
State’s Suppl. Br. 18.
88
Dillard v. State, 337 A.3d 1267, 2024 WL 5165709, at *3 (Del. Dec. 19, 2024) (TABLE).

24
separately.”89 These statements do not explicitly refer to a co-defendant’s guilty plea

or implicate any underlying facts. Here, the prosecutor not only stated that Emner

pleaded guilty to a specific crime but also claimed that Emner “admitted to this

crime” amidst two statements asserting that Yony was the shooter and was acting to

protect Emner. These tactics created an additional inference of guilt by association

that is not present in the more general statements found in Dillard and Wheatley.

The prosecutor’s remarks in the State’s opening statement violated

prosecutorial standards.90 The remarks were impermissible because they violated

Standard 3–6.5(b).91 Under this standard, the State cannot refer to evidence in its

opening statement unless it “reasonably believes” the evidence will be “available,

offered, or admitted to support” its case.92 The State could not have reasonably

believed that the evidence would support its remarks because the State did not intend

to call Emner as a witness. In its answering brief, the State argues that the prosecutor

knew that the defense “would call him as a witness.”93 But, as the State conceded at

oral argument, the prosecutor had not received a defense witness list before trial.94

89
Wheatley v. State, 465 A.2d 1110, 1113 (Del. 1983).
90
Allen, 878 A.2d at 450.
91
Standard 3–6.5(b).
92
Id.
93
Answering Br. 23.
94
Compare Id. (arguing that the prosecutor knew the defense would call Emner to testify), with
July Oral Arg. 27:41–54 (conceding at oral argument that it did not receive a witness list from the
defense).

25
The State was merely speculating about Yony’s defense strategy instead of

attempting to “avoid speculating about what defenses might be raised by the

defense.”95 Although Emner testified at Yony’s first trial, Yony had the right to alter,

or even abandon, the strategy deployed in his first trial. Yony could call different

witnesses or choose not to call any witnesses. In other words, as the State conceded

at oral argument, the prosecutor did not “know” Emner would testify when she made

these remarks.96

2. Testimony Concerning Emner’s Guilt

In the State’s case-in-chief – before Emner testified – the prosecutor re-called

Detective Grassi to the stand, and he testified that Emner pleaded guilty to first-

degree robbery and “conspiracy.”97 Eliciting this testimony was impermissible

because it violated Allen, as well as prosecutorial standards.

We again see no purpose for eliciting such testimony except as substantive

evidence of Yony’s guilt.98 The State claims that Detective Grassi’s testimony was

elicited to

impeach [Emner’s] claim during direct testimony that he did not
conspire with anyone, and [] to show (in conjunction with Ely Oritz
Perez’s testimony as well [as] other witnesses’ testimony who were in

95
Standard 3–6.5(b).
96
Id.; July Oral Arg. 27:28–55.
97
A696, A698 (Tr. 185:3–12, 187:3–13) (Det. Grassi).
98
Allen, 878 A.2d at 450.

26
the restaurant) that Emner Morales-Garcia planned the robbery with
another person and that the most likely person with whom Emner would
have conspired to commit the robbery and murders was his brother,
Yony Morales-Garcia.99

Both arguments fail. The first argument is based on Allen’s limited purpose

exception of “allowing the jury to accurately assess the credibility of the co-

defendant witness.”100 However, Detective Grassi testified that Emner pleaded

guilty to robbery and conspiracy before Emner testified.101 The State cannot

impeach Emner’s testimony before it has occurred.102 In the second argument, the

State concedes that it used Detective Grassi’s testimony to show that Yony conspired

with Emner not only to commit the robbery, but also the murders.103 The State

therefore used a co-defendant’s guilty plea as substantive evidence of a defendant’s

guilt.104 This was not permissible.

99
State’s Suppl. Br. 9 (emphasis added).
100
Allen, 878 A.2d at 450–51.
101
Compare A692 (Tr. 181:11) (Det. Grassi), with A706 (Tr. 195:17) (Emner Morales-Garcia).
102
See Getz v. State, 538 A.2d 726, 731–32 (Del. 1988) (“[T]he State presented the other sexual
misconduct evidence in its case-in-chief and must justify its use at that time and not on the basis
of whether the defendant might later offer evidence of his own character.” (emphasis added)).
103
State’s Suppl. Br. 9 (“The State used Emner Morales-Garcia’s conspiracy guilty plea . . . to
show (in conjunction with Ely Oritz Perez’s testimony as well [as] other witnesses’ testimony who
were in the restaurant) that Emner Morales-Garcia planned the robbery with another person and
that the most likely person with whom Emner would have conspired to commit the robbery and
murders was his brother, Yony Morales-Garcia.”).
104
Allen, 878 A.2d at 451.

27
At oral argument before this Court, the State asserted that it was permissible,

under Allen, for the prosecution to use the “facts underlying the guilty plea to show

that it was Yony Morales-Garcia who was in fact the other person who went into the

restaurant and committed the crimes.”105 There is one major flaw in this argument.

The facts underlying Emner’s guilty plea to first-degree robbery and second-degree

conspiracy are that Emner stole Frank’s gold chain and conspired with another

person to commit robbery. The underlying facts do not implicate Yony as the

gunman. The State repeatedly asserted at oral argument, without further

explanation, that the prosecutor’s reliance on the underlying facts of Emner’s guilty

plea was “different” from using that guilty plea as evidence of Yony’s guilt.106 Under

these circumstances, we are not persuaded that there is a difference.

Moreover, eliciting Detective Grassi’s testimony violated prosecutorial

standards. The State’s conduct violated Standard 3–6.6(d), which prevents a

prosecutor from “bring[ing] to the attention of the trier of fact matters that the

prosecutor knows to be inadmissible.”107 The State knew, or should have known,

that eliciting such testimony from Detective Grassi before Emner testified was

inadmissible. The prosecutor’s decision to elicit this testimony before cross-

105
See July Oral Arg. 25:18–31.
106
See July Oral Arg. 25:30–27:00.
107
Standard 3–6.6(d); see also Watson, 303 A.3d at 44.

28
examining Emner shows that the prosecutor was not introducing this fact for a proper

purpose under Allen. That is, instead of impeaching Emner when he testified, the

prosecutor chose to introduce testimony to imply Yony’s guilt.

D. Reasonable Probability of a Different Outcome

Having found that plain error occurred—in the form of prosecutorial

misconduct—our last step is to determine whether there is a reasonable probability

that, but for this misconduct, the jury’s verdict would have been different.

Regardless of whether we view the instances of misconduct separately or together,

we hold that there was a reasonable probability of a different verdict.

The central issue of this case was the gunman’s identity. As we noted in Suber,

we do not approach “violations lightly when the State relies on the improperly

admitted evidence to identify the perpetrator of a murder.”108 Contrary to the State’s

claim that the evidence of Yony’s guilt was “overwhelming,” an assertion the State

retreated from at oral argument, Yony’s first trial ended in a deadlocked jury.109 Law

enforcement found no direct evidence linking Yony to the shooting. There were no

eyewitness accounts identifying Yony, no firearm was found that was linked to Yony,

108
Suber, 2026 WL 184867, at *7.
See July Oral Arg. 33:50–34:54 (when asked by the Court to clarify how the evidence against
109

Yony was “overwhelming,” the State withdrew the assertion and apologized”); Answering Br. 24;
A9–10 (Super. Ct. Dkt. No. 63 (“Mistrial due to hung jury.”)).

29
and Yony’s hands (and Emner’s hands) were not tested for gunshot residue.110 And

even Ely testified that he did not see Yony with a firearm.111

The trial’s outcome rested almost entirely on whether the jury believed Ely or

Emner. It was a close question. Sufficient cumulative evidence existed in the record

for a jury to believe Emner’s narrative. Either instance of misconduct could have

carried decisive weight with a juror and improperly influenced deliberations.

Further, when the instances of misconduct are viewed collectively, the effect

of both instances clearly prejudiced Yony’s substantial rights because the

prosecutor’s remarks in her opening statement compounded the effect of Detective

Grassi’s testimony about Emner’s guilty plea. Yony has therefore met his burden of

showing that there is a reasonable probability that the outcome of his trial would

have been different if the misconduct had not occurred.112

110
A288, A294–99 (Tr. 85:10–18, 91:14–96:21) (Det. Grassi).
111
A679 (Tr. 168:10–12) (Yony Morales-Garcia). A firearm matching the brass cartridge was
found nearly a month after the shooting, during a routine traffic stop, in the pocket of an individual
who had no connection to the restaurant, Yony, Emner, Jose, or Ely. A294–99 (Tr. 91:14–96:21)
(Det. Grassi).
112
Because Yony’s first argument is dispositive of this appeal, we do not address his second,
alternative argument, which requires this Court find that the evidence of Emner’s plea was
admitted for a proper, limited purpose under Allen. Purnell v. State, 106 A.3d 337, 350–51 (Del.
2014) (quoting Allen, 878 A.2d at 451). For the same reason, we do not consider the State’s waiver
argument that it raised for the first time at oral argument. Specifically, the State asserted that Yony
waived this alternative argument by not agreeing to include an inapplicable jury instruction in the
court’s charge. See July Oral Arg. 34:55–37:25; accord State’s Suppl. Br. 6–8. To the extent the
State intended this waiver argument to apply to Yony’s claims of prosecutorial misconduct, its
argument lacks adequate development and therefore is deemed waived.

30
CONCLUSION

For these reasons, we REVERSE Yony Morales-Garcia’s convictions and

REMAND for a new trial.

31