by Douglas Ankney

The Supreme Court of Delaware, sitting en banc, reversed Yony Morales-Garcia’s convictions and remanded for a new trial, holding that the State committed plain error when it repeatedly referred to his brother and co-defendant’s guilty plea during trial. The Court concluded that the prosecutor’s opening-statement reference to Emner Morales-Garcia having “admitted to this crime already” and pleaded guilty to robbery, followed by testimony elicited from a detective that Emner pleaded guilty to robbery and conspiracy, violated Allen v. State, 878 A.2d 447 (Del. 2005), affected Yony’s substantial rights, and created a reasonable probability of a different verdict.

Background

On January 22, 2022, two masked men entered a crowded Sussex County restaurant. One man ripped a gold chain from a patron’s neck, and the other shot and killed two people. The State’s theory was that Yony Morales-Garcia was the gunman and fired to protect his brother, Emner, who later admitted stealing the chain.

The brothers were indicted jointly on 17 counts, including two counts of first-degree murder, first-degree robbery, firearm offenses, wearing a disguise during commission of a felony, and first-degree conspiracy. The Superior Court ordered separate trials. Emner accepted a plea offer, pleading guilty to first-degree robbery and second-degree conspiracy. Yony’s first trial ended in a deadlocked jury.

At Yony’s second trial, the prosecutor told the jury in opening statement that when Emner tripped after stealing the chain, Yony “opened fire” to protect him. Between two statements identifying Yony as the shooter, the prosecutor stated that Emner had “admitted to this crime already” and had pleaded guilty to robbery. The State made that reference even though it did not intend to call Emner in its case-in-chief and did not know whether the defense would call him.

Before Emner testified, the State also elicited testimony from Detective Daniel Grassi that Emner had resolved his charges by pleading guilty to first-degree robbery and another charge, which Grassi believed was conspiracy. The defense subsequently called Emner, who suggested that Ely Ortiz, not Yony, was the second masked man and shooter. Yony also testified and denied being the gunman. The jury convicted Yony on all 17 counts, including two counts of first-degree murder.

Analysis

Plain-Error Review
and Forfeiture

The Court began its analysis by applying the plain-error framework recently restated in Suber v. State, 2026 Del. LEXIS 13 (2026). Because Yony did not object to the prosecutor’s opening statement or Grassi’s testimony, the Court reviewed the prosecutorial-misconduct claim for plain error rather than harmless error. Under Suber, the Court stated that courts must determine whether the record is adequate, whether the right was waived, whether the error violated current law, and whether the error adversely affected substantial rights. Baker v. State, 906 A.2d 139 (Del. 2006). To affect substantial rights, the error must be clearly prejudicial enough to jeopardize the fairness and integrity of the trial process, which requires a reasonable probability that the outcome would have been different but for the error. Johnson v. State, 813 A.2d 161 (Del. 2001); Greer v. United States, 593 U.S. 503 (2021).

The Court first ruled that the trial record was adequate. The alleged misconduct appeared in the trial transcript, and the State was not deprived of an opportunity to develop a record. The Court explained that this fact distinguished Swanson v. State, 2025 Del. LEXIS 504 (2025), where a suppression issue raised for the first time on appeal would have unfairly prevented the State from presenting evidence in the trial court. In the present case, the absence of an objection did not leave the State similarly disadvantaged, according to the Court. Suber; Swanson.

The Court then rejected the State’s waiver argument. Waiver requires a knowing and intelligent relinquishment of a right, while forfeiture is the failure to make a timely assertion of a right. The State bears the burden to prove waiver, and courts make every reasonable presumption against waiver. Flamer v. State, 490 A.2d 104 (Del. 1983); Purnell v. State, 254 A.3d 1053 (Del. 2021). Although defense counsel told the trial court he had made a tactical decision not to object to certain hearsay testimony because he planned to call Emner, that exchange concerned Emner’s statement about where he had hidden a duffle bag. It did not establish a tactical waiver of objections to the opening-statement reference to Emner’s guilty plea or to Grassi’s testimony about that plea, the Court explained. Thus, the Court ruled that the claims were forfeited, not waived, and remained subject to plain-error review. Suber.

Allen Violations

The Court next held that both challenged acts violated current law under Allen. In Allen, the Delaware Supreme Court held that a co-defendant’s plea agreement, like a co-defendant’s conviction, is not generally admissible in the defendant’s trial. The Court stated that a co-defendant’s plea agreement may not be used as substantive evidence of a defendant’s guilt, to bolster a co-defendant’s testimony, or to directly or indirectly vouch for a co-defendant who pleaded guilty and testified against the accused. Allen. Such evidence may be admitted only for limited purposes, including allowing the jury to assess the credibility of a co-defendant witness, addressing possible concerns about selective prosecution, or explaining how the co-defendant witness has first-hand knowledge of the events. Allen.

Although Allen involved a written plea agreement, the Court determined that its foundational principle applied equally to the State’s verbal references to Emner’s guilty plea. A defendant has the right to have guilt or innocence determined by the evidence against him, not by what happened in another person’s prosecution. United States v. Gambino, 926 F.2d 1355 (3d Cir. 1991); Bisaccia v. Attorney General of New Jersey, 623 F.2d 307 (3d Cir. 1980); Allen. The Court reasoned that the State’s verbal references introduced the same prejudicial information that Allen barred, i.e., the risk that the jury would convict Yony based on Emner’s admission of guilt rather than proof that Yony was the shooter.

The Court explained that the opening statement constituted misconduct because the prosecutor told the jury that Emner had admitted to the crime and pleaded guilty to robbery while framing Yony as the gunman who fired to protect him. The Court rejected the State’s reliance on Dillard v. State, 337 A.3d 1267 (Del. 2024), and Wheatley v. State, 465 A.2d 1110 (Del. 1983), explaining that those cases involved more general references and did not explicitly identify a co-defendant’s guilty plea or underlying facts in a manner suggesting guilt by association. In the present case, the prosecutor’s specific reference to Emner’s plea, placed between statements accusing Yony of shooting to protect him, created an inference that Yony was guilty because Emner was guilty, according to the Court. Allen.

The Court also ruled that the opening statement violated prosecutorial standards. The Delaware Supreme Court had previously been guided by American Bar Association standards in assessing prosecutorial tactics and had adopted part of Standard 3-6.6 in Watson v. State, 303 A.3d 37 (Del. 2023), which bars prosecutors from bringing inadmissible matters to the fact finder’s attention. The Court now adopted the relevant portion of Standard 3-6.5, which confines an opening statement to evidence the prosecutor reasonably believes will be available, offered, and admitted to support the prosecution case and instructs prosecutors to avoid speculating about possible defenses. Watson. Because the State did not intend to call Emner and did not know whether the defense would call him, it could not reasonably rely on his later testimony to justify telling the jury about his guilty plea in opening statement, the Court explained.

The Court then concluded that eliciting Grassi’s testimony about Emner’s guilty plea was independently impermissible. The State argued that the testimony was relevant to impeach Emner and to show that Emner had conspired with another person, most likely Yony, to commit the robbery and murders. The Court rejected both theories. The impeachment rationale failed because Grassi testified before Emner took the stand; the State could not impeach testimony that had not yet occurred. Allen; Getz v. State, 538 A.2d 726 (Del. 1988). The conspiracy rationale failed because it treated Emner’s guilty plea as substantive evidence that Yony was the other participant, precisely what Allen forbids.

The Court also rejected the State’s attempt to distinguish use of the facts underlying Emner’s plea from use of the plea itself because the facts underlying the plea showed only that Emner stole the chain and conspired with another person to commit robbery; they did not identify Yony as the gunman. The testimony also violated Standard 3-6.6(d), which prohibits a prosecutor from bringing inadmissible matters to the jury’s attention, because the State elicited the plea testimony before Emner testified and used it to imply Yony’s guilt rather than for a proper purpose under Allen, the Court determined.

Prejudice and Probability
of a Different Verdict

Finally, the Court concluded that the misconduct created a reasonable probability of a different verdict. Identity was the central issue. The State’s claim that the evidence was overwhelming was undermined by the first trial’s deadlock, the absence of eyewitness testimony identifying Yony as the gunman, the absence of a firearm linked to Yony, the lack of gunshot-residue testing of Yony or Emner, and Ely’s testimony that he did not see Yony with a firearm. Because the trial turned largely on whether the jury believed Ely or Emner, either improper reference to Emner’s guilty plea could have carried decisive weight, and their combined effect clearly prejudiced Yony’s substantial rights, the Court concluded. Suber; Johnson; Greer.

Conclusion

Thus, the Court held that the prosecutor’s opening-statement reference to Emner’s guilty plea and the State’s eliciting testimony about that plea were plain errors under Allen and that the errors jeopardized the fairness and integrity of the trial process. The Court further held that Yony showed a reasonable probability that the verdict would have been different absent the misconduct.

Accordingly, the Court reversed Yony’s convictions and remanded for a new trial. See: Morales-Garcia v. State, 2026 Del. LEXIS 62 (2026).  

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