Reindictment After Nolle Prosequi (Before Jeopardy Attaches) Does Not Offend Double Jeopardy or “Judicial Manipulation” Absent Improper State Purpose

1. Introduction

Fayton v. State is a direct appeal arising from Reginald Fayton’s jury convictions for attempted first-degree murder and related offenses stemming from (i) a February 2023 domestic-violence incident and (ii) a July 2023 shooting of his estranged wife, Vernell Fayton, in her Delaware apartment building stairwell. On appeal, defense counsel proceeded under Supreme Court Rule 26(c), representing that a conscientious review revealed no non-frivolous issues, while Fayton filed pro se points.

The Delaware Supreme Court’s Order addresses multiple recurring criminal-procedure themes: (1) the appellate court’s gatekeeping role under Rule 26(c); (2) trial-court discretion in responding to jury notes; (3) plain-error review of unpreserved prosecutorial-misconduct claims; (4) recusal when the trial judge previously signed an investigative warrant; (5) the framework for Franks v. Delaware challenges to allegedly false warrant affidavits; (6) sentencing review for “closed mind” or impermissible factors; and (7) the limits of double jeopardy and “judicial-process manipulation” arguments when the State enters a nolle prosequi and later reindicts.

2. Summary of the Opinion

The Court affirmed all convictions and the sentence, concluding that the appeal was “wholly without merit” under the Rule 26(c) standard. The Court held, in substance:

• The trial court acted within its discretion in instructing the jury to rely on its collective memory rather than providing a transcript/readback.
• Any inconsistency in closing argument about whether Fayton “emptied the clip” did not amount to reversible plain error.
• The recusal issue—based on the trial judge’s earlier signing of a pen register/track-and-trace warrant—was waived and, applying Willis v. State and a Los v. Los analysis, meritless.
• A claimed “Franks issue” about “alleged death” language in the arrest warrant affidavit was unpreserved and, in any event, not material to probable cause.
• The sentence (including life imprisonment for attempted murder) was within statutory limits and not infected by impermissible factors or a “closed mind.”
• Reindictment on the February assault charge after a prior nolle prosequi did not violate double jeopardy because jeopardy had not attached, and it did not constitute unfair manipulation of the judicial process absent the kind of improper State motive identified in prior cases.

3. Analysis

3.1. Precedents Cited

Jury note responses: The Court’s rejection of Fayton’s jury-note claim relied on practical trial-management discretion and cited Anderson v. State for the proposition that, where counsel concurs in the response to a jury inquiry, claims of error generally fail—especially in Rule 26(c) posture.

Unpreserved prosecutorial misconduct: The Court invoked Miller v. State to apply plain-error review where no contemporaneous objection was made, focusing on whether “substantial rights” were jeopardized or the fairness of the trial imperiled.

Judicial recusal after prior warrant activity: The Court leaned on Willis v. State, which approved a trial judge’s decision not to recuse after signing a search warrant, so long as the judge conducts the two-step recusal inquiry required by Los v. Los. The Court also quoted Jones v. State describing that two-step test: (1) subjective ability to be fair and (2) objective appearance-of-bias assessment.

Warrant affidavit challenges: For the asserted “Franks issue,” the Court cited Wingate v. State (which itself cites Franks v. Delaware) for the rule that a false statement warrants suppression only if it was necessary to probable cause—tested by excising the statement and reassessing the remainder.

Sentencing review and “closed mind”: The Court cited Gingerich v. State for abuse-of-discretion review and the “impermissible factors or closed mind” limitation; Stanley v. State (citing Siple v. State) to reiterate that guideline deviations are not independently appealable; and Ferguson v. State to define “closed mind” as sentencing based on preconceived bias without considering offense and character.

Preservation rules: The Court referenced DEL. SUPR. CT. R. 8 to reject unpreserved arguments (e.g., the Franks claim).

Double jeopardy attachment and plain error: The Court cited Blake v. State for plain-error review when double jeopardy is not raised below; North Carolina v. Pearce for the three protections of the Double Jeopardy Clause; and Butler v. State (with Scott v. State) for the rule that, in a jury trial, jeopardy attaches when the jury is empaneled and sworn.

Nolle prosequi and reindictment; “manipulation” doctrine: The Court relied on Thornton v. State for the State’s authority to dismiss before trial and reindict after nolle prosequi. It distinguished State v. Fischer and State v. Pruitt—and referenced State v. Hazelton—as instances where the State improperly manipulated proceedings (e.g., to avoid an unfavorable ruling or obscure a due process problem).

3.2. Legal Reasoning

The Order is best understood as a disciplined application of procedural filters and deference standards rather than an expansion of substantive criminal law. The Court repeatedly asked: (a) was the issue preserved; (b) if not, does plain error appear on the face of the record; and (c) even if preserved, did the trial court act within discretionary bounds?

(a) Jury note handling as discretionary trial management. The key fact was not merely the court’s response, but defense counsel’s explicit concurrence. The Court treated the instruction—rely on collective recollection—as a conventional, non-prejudicial response to transcript/readback requests, and found no abuse of discretion.

(b) Closing argument “emptied” versus “nearly emptied” as non-prejudicial. Under Miller v. State’s plain-error lens, the Court considered the totality: multiple gunshot wounds were undisputed, counsel did not object, and any semantic inconsistency did not undermine trial fairness or the verdict’s integrity.

(c) Recusal: waiver plus a Los-compliant analysis. The Court emphasized that the State proactively disclosed the judge’s prior warrant signature; the court invited recusal motions; both sides declined after consultation; and the court nonetheless performed the Los v. Los subjective/objective inquiry. With Willis v. State as the controlling analogue, prior judicial authorization of an investigative tool (here, pen register/track-and-trace) did not itself require recusal absent bias or an objective appearance of partiality.

(d) The asserted “Franks issue” fails on preservation and materiality. Even assuming the “alleged death” phrasing was inaccurate, the Court applied the Franks v. Delaware materiality concept (via Wingate v. State): excise the challenged statement and ask whether probable cause remains. The Court concluded it did—so no relief would be available even if preserved.

(e) Sentencing: statutory-range deference and the “closed mind” safeguard. Applying Gingerich v. State and Ferguson v. State, the Court treated Fayton’s arguments as disagreements with weight and rhetoric rather than proof of impermissible considerations. Notably, the sentencing judge acknowledged the age of some history and declined to apply a “SENTAC label” of repetitive-conduct aggravation, undercutting the claim that the court reflexively enhanced punishment. The “until you do not breathe” remark was read in context as an articulation of deterrence and condemnation rather than personal animus.

(f) Reindictment after nolle prosequi: no double jeopardy; no “manipulation” on this record. The Court’s reasoning has two layers:

• Double jeopardy: Under Butler v. State and Scott v. State, jeopardy attaches at jury empanelment and swearing. Because the State’s June 2023 nolle prosequi occurred before that point, double-jeopardy protections under North Carolina v. Pearce were not triggered.
• Judicial-process manipulation: Under Thornton v. State, reindictment following nolle prosequi is generally permissible. The Court distinguished State v. Fischer and State v. Pruitt (as framed by State v. Hazelton) because there was no suggestion the State revived charges to evade an adverse ruling, to forum shop, or to conceal a due process violation. The Court credited an ordinary, non-improper explanation: escalation of conduct culminating in the July shooting prompted renewed pursuit of the earlier assault charge.

3.3. Impact

Although issued as a Rule 26(c) affirmance, the Order meaningfully consolidates several practical points likely to shape litigation choices:

• Recusal practice: Parties should expect that a judge’s earlier signing of investigative warrants (including pen register/track-and-trace authorizations) will not automatically require recusal if a Los v. Los analysis supports impartiality—especially where the issue is disclosed and no party seeks recusal.
• Preservation discipline: The Order exemplifies the consequences of failing to raise claims below (Rule 8 waiver; plain-error hurdles), particularly for Franks challenges and double-jeopardy/judicial-manipulation theories.
• Nolle prosequi strategy: For defendants, the decision underscores that a pre-jeopardy nolle prosequi is not a double-jeopardy shield against future prosecution. For the State, it signals that reindictment is sustainable unless the record reflects improper motive of the type condemned in State v. Fischer and State v. Pruitt.
• Sentencing appeals: Within-range sentences remain difficult to disturb absent clear reliance on impermissible factors or a demonstrable “closed mind,” with contextual reading of the judge’s remarks favored over isolated phrases.

4. Complex Concepts Simplified

• Supreme Court Rule 26(c): Delaware’s mechanism (analogous to the federal Anders procedure) allowing counsel to seek withdrawal when no non-frivolous appellate issues exist, while still ensuring the court independently reviews the record.
• Plain error: A narrow appellate safety valve for unpreserved mistakes; relief requires an obvious, fundamental error apparent on the record that threatens trial fairness or integrity.
• Pen register / “track and trace” warrant: Court authorization to collect routing/identifying information (and related tracking data as authorized) during an investigation; prior approval does not itself mean the judge is biased at trial.
• Los v. Los recusal test: Two steps—(1) the judge’s subjective confidence in impartiality; (2) whether an objective observer would reasonably question impartiality (appearance of bias).
• Franks v. Delaware issue: If a warrant affidavit contains a false statement, the warrant is invalid only if the falsehood was necessary to probable cause; courts test this by removing the challenged statement and reassessing probable cause.
• Nolle prosequi: The State’s formal decision to drop a charge (often without prejudice) before trial; it typically permits later reindictment.
• When jeopardy “attaches”: In a jury trial, when the jury is empaneled and sworn; only then do core double-jeopardy protections against reprosecution for the same offense generally apply.
• “Closed mind” at sentencing: A sentence driven by preconceived bias rather than consideration of the offense and the defendant; it is one of the few bases to overturn a within-range sentence.
• SENTAC: Delaware’s sentencing accountability framework; the judge’s refusal to apply a repetitive-conduct “label” was used as evidence of individualized consideration.

5. Conclusion

Fayton v. State is an affirmance that reinforces procedural guardrails: rigorous preservation requirements, restrained plain-error intervention, deference to trial management and within-range sentencing, and a pragmatic recusal doctrine under Los v. Los even where the trial judge previously authorized an investigative warrant. Most notably, the Order reaffirms that a pre-jeopardy nolle prosequi does not trigger double-jeopardy protections and that “judicial-process manipulation” requires the kind of improper State purpose identified in State v. Fischer and State v. Pruitt, not merely a later decision to pursue additional charges after escalation of criminal conduct.