Fayton v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

REGINALD FAYTON, §
§
Defendant Below, § No. 510, 2024
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. N2307001417A/B
§
Appellee. §

Submitted: November 7, 2025
Decided: January 9, 2026

Before SEITZ, Chief Justice; VALIHURA and GRIFFITHS, 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, the

appellant’s points, and the Superior Court record, it appears to the Court that:

(1) This is Reginald Fayton’s direct appeal from his convictions for

attempted first-degree murder and other crimes. Fayton’s counsel has filed a brief

and a motion to withdraw under Supreme Court Rule 26(c). Counsel asserts that he

has made a conscientious review of the record and the law and concluded that the

appeal is without merit. Counsel informed Fayton 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 Fayton of his right to supplement counsel’s
presentation. Fayton provided points for the Court’s consideration. 1 The State

argues that the Superior Court’s judgment should be affirmed.

(2) Fayton and Vernell Fayton (“Ms. Fayton”) were married and lived in

New York. In early 2020, they separated and Ms. Fayton moved to an apartment in

New Castle, Delaware, where Fayton sometimes visited her. On February 12, 2023,

law enforcement responded to Ms. Fayton’s residence for an incident during which

Ms. Fayton reported that Fayton had physically assaulted her. The responding

officer observed injuries to Ms. Fayton’s face. Fayton was charged with third-degree

assault and ordered to have no contact with Ms. Fayton or her residence, but the

parties continued to communicate.

(3) Several months later, on July 2, 2023, Ms. Fayton returned from

vacationing in Florida with her stepson, Fayton’s son. She had parked her car in the

parking garage in the building in New York where she and Fayton had lived before

she moved to Delaware, and where Fayton continued living after the separation. She

went to the garage to retrieve the car, and Fayton confronted her angrily and tried to

“start a fight” with her. 2 After the encounter, Ms. Fayton drove her stepson to the

ferry on Staten Island, visited family in New York, and then returned to Delaware.

1
Fayton provided points (the “October Points”) after the deadline for filing the brief. Counsel
submitted and requested that the Court consider them, and the Court has done so. The Court also
considered the similar document that counsel originally submitted with the Rule 26(c) brief, which
Fayton provided to counsel before Rule 26(c) was at issue. To the extent the issues presented in
that document differed from those presented in the October Points, we find no merit in them.
2
App. to Opening Brief at A487.

2
When she entered her apartment, she found that it had been disturbed and believed

that Fayton had entered the apartment using a stolen key. Leaving her suitcase by

the door, she went downstairs to ask the apartment manager to change the locks. She

encountered Fayton in the stairwell, and he shot her multiple times, including in the

shoulder, abdomen, legs, and side. As Ms. Fayton lay bleeding on the ground, she

called 911 and identified Fayton as the shooter. She also told responding officers

that Fayton had shot her.

(4) Surveillance footage depicted Fayton arriving at and leaving the

apartment complex in a white Nissan Maxima on the day of the shooting. License

plate readers on the Delaware Memorial Bridge and the Goethals Bridge in New

York captured Fayton’s car at times consistent with his having driven from New

York to Delaware after confronting Ms. Fayton in the parking garage in New York

and returning from Delaware to New York immediately after the shooting. As he

fled toward New York, Fayton attempted to dispose of the gun over the Delaware

Memorial Bridge. Construction workers at a job site under the bridge found a

firearm in multiple pieces on July 10, 2023; ballistics testing confirmed it was the

same handgun used in the July 2 shooting.

(5) A grand jury indicted Fayton for seven offenses relating to the February

and July 2023 incidents: attempted first-degree murder; stalking; possession of a

firearm during the commission of a felony; possession of a firearm by a person

3
prohibited (“PFBPP”); second-degree burglary; noncompliance with bond

conditions; and third-degree assault. A Superior Court jury found Fayton guilty of

all the charged offenses, including the PFBPP charge, which was tried in a separate

“B” trial. After a presentence investigation, the court sentenced Fayton to life

imprisonment for attempted murder and a total of fifty-five years of imprisonment,

suspended after forty-eight years, for his other crimes.

(6) 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. 3 The

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.”4

(7) Fayton argues that the Superior Court abused its discretion as to a jury

note about testimony provided by Ms. Fayton and her granddaughter. The jury note

stated: “Count 4. 1: Granddaughter’s testimony on Count 4? Also Vernell’s

testimony on Count 4.” 5 The court interpreted the note as requesting a transcript or

3
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).
4
Penson, 488 U.S. at 82.
5
Appendix to Opening Brief at A687. In the “A” trial, when the note was submitted, “Count 4”
referred to the second-degree burglary charge, as to which the jury was also instructed on the
lesser-included offense of first-degree criminal trespass. Id. at A609-13, 683.

4
“read back” of those witnesses’ testimony and invited counsel’s response.6 The

prosecutor opined that the court should simply instruct the jury that they should rely

on their recollection of the testimony, and defense counsel stated: “I concur, Your

Honor.”7 The court indicated that it would instruct the jury that the court could not

provide additional information and that they should rely on their collective

recollection of the testimony. Both counsel stated that they did not object, and the

court then instructed the jury consistent with the discussion with counsel. 8 There is

no merit to Fayton’s argument that the court exceeded its discretion as to the jury

note.9

(8) Fayton asserts that the prosecutor engaged in misconduct by making

inconsistent statements about whether Fayton “emptied the clip” or not. During

closing arguments, the prosecutor stated that Fayton “nearly emptied the clip in her,

. . . shooting all but one of his loaded bullets into [Ms. Fayton’s] shoulder, stomach,

hips and legs”10 and that Fayton “emptied a clip” into Ms. Fayton’s body. 11 The

6
Id. at A687.
7
Id. at A-687-88.
8
Id. at A-688-89.
9
See Anderson v. State, 2018 WL 6344697, at *1-2 (Del. Dec. 4, 2018) (finding no merit to
appellant’s argument, in points submitted under Rule 26(c), that court erred in its response to a
jury note, and stating that “[b]oth the prosecutor and defense counsel agreed before the judge
answered the note that this was the appropriate response”).
10
Appendix to Opening Brief at A636-37.
11
Id. at A660; see also id. at A677-78 (responding to defense argument that Fayton did not intend
to kill because he did not hit any major organs by querying whether the jury should make that
inference or should instead infer that Fayton could not continue shooting because had “already
emptied the clip”).

5
prosecutor also pointed to evidence that the construction workers found a gun and a

hollow point bullet.12 To the extent those statements were inconsistent, we discern

no reversible error. Defense counsel did not object to the prosecutor’s statement,

and there was no dispute that Ms. Fayton was shot multiple times. Any

inconsistency as to whether the gun was “emptied” or “nearly emptied” did not

jeopardize substantial rights or undermine the fairness of the trial in the context of

this case in which the victim indisputably suffered multiple gunshot wounds. 13

(9) Fayton contends that the Superior Court abused its discretion because

the judge who presided over trial had signed a pen register or “track and trace”

warrant before Fayton’s arrest. The State identified this issue before trial and

brought it to the court’s and defense counsel’s attention.14 At a pretrial conference,

the court asked whether either party were seeking recusal, and both the prosecutor

and defense counsel said they were not and that they wanted to move forward with

trial as scheduled.15 After consulting with Fayton, defense counsel reiterated, “we’re

12
Id. at A652.
13
See Miller v. State, 270 A.3d 259, 267 (Del. 2022) (“Generally, when a defendant fails to
contemporaneously object to prosecutorial misconduct, the right to raise the issue on appeal is
waived. ‘However, where substantial rights are jeopardized and the fairness of the trial imperiled,
this Court will apply a plain error standard of review.’ In other words, if defense counsel fails to
object to alleged misconduct by the prosecutor at trial, and the trial judge does not intervene sua
sponte, this Court reviews for plain error.” (footnotes omitted)).
14
Appendix to Opening Brief at A43, 50.
15
Id. at A50, 55, 57, 59.

6
good to go forward.”16 After considering this Court’s decision in Willis v. State,17

the parties’ positions, and the practical effects of recusal (which would likely require

rescheduling trial), and after conducting a Los analysis,18 the court determined that

recusal was not necessary. Fayton’s claim as to this issue is both waived and

meritless.

(10) Fayton also argues that the warrant for his arrest falsely indicated an

“alleged death,” creating a “Franks issue.” The affidavit supporting an application

for an arrest warrant must provide sufficient information to support an independent

judgment that there is probable cause to believe that the accused has committed a

crime.19 “Under Franks v. Delaware, a false statement in an affidavit can serve as a

basis to set aside a warrant only if a reviewing court finds that the false statement

was necessary to the finding of probable cause.” 20 “The court makes the required

finding by reviewing the affidavit with the false statement removed to determine if

16
Id. at A59.
17
302 A.3d 417 (Del. 2023) (finding no error in trial judge’s determination, after conducting an
analysis under Los v. Los, 595 A.2d 381 (Del. 1991), that his having signed a search warrant during
the investigation did not require him to recuse from presiding at trial).
18
In Los, 595 A.2d 381, this Court established the following process for considering a motion to
recuse: “[W]hen confronted with a motion to recuse, the trial judge must engage in a two-step
analysis to determine whether disqualification is appropriate. The first step requires the judge to
be subjectively satisfied that she can proceed to hear the cause free of bias or prejudice concerning
that party. Even if the judge is satisfied that she can proceed to hear the matter free of bias or
prejudice, the second step requires the judge to examine objectively whether the circumstances
require recusal because there is an appearance of bias sufficient to cause doubt as to the judge’s
impartiality.” Jones v. State, 940 A.2d 1, 18 (Del. 2007) (citations and internal quotations omitted).
19
Wingate v. State, 2018 WL 3005445, at *3 (Del. June 14, 2018).
20
Id. (citing Franks v. Delaware, 438 U.S. 154 (1978)).

7
the remaining information in the affidavit is sufficient to find probable

cause.”21 Because Fayton did not raise this claim in the Superior Court, it was not

preserved for appellate review.22 And, in any event, the claim is without merit. Even

without considering the “alleged death” language, the affidavit contained allegations

sufficient to establish probable cause for Fayton’s arrest for numerous crimes,

including attempted murder.

(11) Fayton challenges his sentence on several grounds. He contends that

the Superior Court should not have considered a thirty-year-old domestic violence

incident because the incident was an accident. He argues that the court erroneously

considered undue depreciation of his offense and prior abuse of the victim when

determining the sentence. And he asserts that the court’s statement that Fayton

would remain in prison “until you do not breathe” “took on a real personal note.”

(12) We review the Superior Court’s sentencing of a criminal defendant for

abuse of discretion. 23 The sentencing judge has broad discretion to consider

information about a defendant’s personal history and past conduct when determining

the sentence.24 “Delaware does not provide for appellate review of punishments

simply because the punishment deviates from sentencing guidelines.” 25 When

21
Id.
22
DEL. SUPR. CT. R. 8.
23
Gingerich v. State, 2025 WL 1793398, at *2 (Del. June 30, 2025).
24
Id.
25
Stanley v. State, 2013 WL 543897, at *1 (Del. Feb. 12, 2013) (citing Siple v. State, 701 A.2d 79
(Del. 1997)).

8
the sentence is within the statutory limits, as here, we will not find that the trial court

abused its discretion unless the sentencing judge clearly “relied on impermissible

factors or exhibited a closed mind.”26

(13) Fayton has not demonstrated such error here. To the extent that he

contends that the court misunderstood the facts of the older incident, he did not

present that position at sentencing. Moreover, the court stated that it considered

Fayton’s history as suggesting a pattern of poor conduct toward women but

acknowledged that some of the history was from “quite a while ago” and specifically

declined to apply the “SENTAC label” of “repetitive criminal conduct or a similar

type of aggravator.”27 Fayton’s disagreement with the application of aggravating

factors is not a basis for reversal.

(14) Nor does the judge’s remark about remaining in prison until “you do

not breathe” establish that the judge had a closed mind. Read in context, it appears

that the statement was not directed at Fayton personally but at the idea that a sentence

above the minimum would have a deterrent effect, one of the well-recognized

purposes of criminal punishment. 28 Moreover, the sentencing record reflects that

26
Gingerich, 2025 WL 1793398, at *2 (internal quotation omitted).
27
Appendix to Opening Brief at 740-41.
28
See id. at 743 (“I am going to give you a natural life sentence. Now, you’re already 60. Even
if I just gave you the minimum 18 and a half, you probably would not leave prison alive most
likely. But I want to make it very clear that a woman who goes through what Vernell Fayton went
through, who seeks, does everything she can to try to protect herself, that the law would protect
her. If, in fact, you [a would-be perpetrator] decide you’re going to take her life, you will forfeit

9
the court maintained an open mind about the prospective sentence. A judge

“sentences with a closed mind when the sentence is based on a preconceived bias

without consideration of the nature of the offense or the character of the

defendant.”29 In this case, the judge heard from Ms. Fayton, the prosecutor, defense

counsel, and Fayton. His remarks indicated that he had given significant thought to

the sentence before the hearing, that he wanted to consider everyone’s statements at

sentencing before making his final determination, and that the court maintained an

open mind about the potential sentence.30 Fayton’s claims challenging his sentence

are without merit.

(15) Finally, Fayton contends that his conviction for third-degree assault,

which related to the February 2023 incident, unfairly manipulated the judicial

process and violated his protection against double jeopardy because the State had

entered a nolle prosequi on the assault charge in June 2023 but then reindicted him

for the February assault after the July shooting. Because Fayton did not raise these

the rest of your life in decent society. You will stay within the Department of Correction until you
do not breathe.”).
29
Ferguson v. State, 283 A.3d 74, 79 (Del. 2022).
30
See Appendix to Opening Brief at A730 (stating that, even though the impact on the victim was
an important factor in the sentencing decision, “I want to hear from everybody and then make my
final determination”); id. at A744 (“I’ve given long thought to it. And until I sat and listened to
Ms. Fayton today, listened to your statement about what your thoughts are in the crime, because I
did not have those before either in the PSI, it brings into clear relief for me that you are one of
those few people, and I have not done it often in my judicial career, who does deserve a
discretionary natural life sentence.”).

10
claims in the Superior Court, we review for plain error. 31 “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.”32 “Furthermore, the doctrine of plain error is limited to material defects

which are apparent on the face of the record; which are basic, serious and

fundamental in their character, and which clearly deprive an accused of a substantial

right, or which clearly show manifest injustice.” 33

(16) We find no plain error. “The Double Jeopardy Clause provides three

related protections: ‘It protects against a second prosecution for the same offense

after acquittal. It protects against a second prosecution for the same offense after

conviction. And it protects against multiple punishments for the same offense.’”34

“In a jury trial, jeopardy attaches when the jury is empaneled and sworn.” 35 Because

jeopardy had not attached when the State dropped the assault charge for the February

incident in June 2023, Fayton’s double-jeopardy claim is without merit.36

31
See Blake v. State, 65 A.3d 557, 562 (Del. 2013) (“Blake did not raise directly the issue of
Double Jeopardy below, and the Superior Court did not address the issue on its own. Our standard
of review is therefore plain error.”).
32
Id. (internal quotations omitted).
33
Id. (internal quotations omitted).
34
Id. at 561 (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
35
Butler v. State, 95 A.3d 21, 32 (Del. 2014); see also Scott v. State, 2003 WL 22416036, at *1
(Del. Oct. 21, 2003) (“In a criminal proceeding, jeopardy does not attach until the jury has been
empaneled and sworn or, in a non-jury trial, when the first witness has been sworn.”).
36
See Scott, 2003 WL 22416036, at *1 (“Because jeopardy had not yet attached when the Superior
Court vacated its order of dismissal and scheduled Scott’s case for trial, Scott’s claim of a double
jeopardy violation must fail.”).

11
(17) Fayton’s claim that the State unfairly manipulated the judicial process

by reviving the assault charge also fails. The State may “file a dismissal, terminating

prosecution in a case, at any time prior to trial without the Superior Court’s

permission,” and the “State is not prohibited from reindicting and prosecuting a

defendant for the same offense where a nolle prosequi has been entered” on a

charge.37 Fischer 38 and Pruitt,39 on which Fayton relies, are distinguishable. In

those cases, the Court determined that the State unfairly manipulated the judicial

process by attempting to bring revived charges in different courts “to avoid an

unfavorable ruling in Fischer’s case[] and to try to hide a due process violation in

Pruitt’s case.”40 There was no such manipulation here. Rather, it appears that the

victim and the State decided to pursue the assault charge for the February incident

after Fayton continued stalking the victim and then shot her multiple times in July.

(18) We have carefully reviewed the record and conclude that Fayton’s

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

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

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

claim in this appeal.

37
Thornton v. State, 1998 WL 309837, at *1 (Del. June 3, 1998).
38
State v. Fischer, 285 A.2d 417 (Del. 1971).
39
State v. Pruitt, 805 A.2d 177 (Del. 2002).
40
State v. Hazelton, 178 A.3d 1145, 1152 (Del. 2018).

12
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED. The motion to withdraw is moot.

BY THE COURT:

/s/ Collins J. Seitz, Jr.
Chief Justice

13