McGuiness v. State

312 A.3d 1156

Kathleen MCGUINESS, Defendant Below, Appellant,

v.STATE of Delaware, Appellee.

No. 438, 2022

Supreme Court of Delaware.

Submitted: November 15, 2023

Decided: February 13, 2024

Court Below: Superior Court of the State of Delaware (K), Cr, ID No. 2206000799

Upon appeal from the Superior Court of the State of Delaware. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Steven P. Wood, Esquire (argued), Chelsea A. Botsch, Esquire, MeCARTER & ENGLISH, LLP, Wilmington, DE, Dean A. Elwell, Esquire, MeCARTER & ENGLISH, LLP, Boston, MA, Attorneys for Appellant Kathleen McGuiness.

David C. McBride, Esquire (argued), M. Paige Valeski, Esquire, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, DE, Attorneys for Appellee State of Delaware.

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

LEGROW, Justice, for the Majority:

An elected state official was indicted and tried on criminal charges arising from her conduct while in office. The parties vigorously litigated the case, and the trial court issued numerous well-reasoned and even-handed decisions before, during, and after the trial. The jury ultimately convicted the defendant of three charges while acquitting her of two others. She now appeals, arguing that "the trial that led to the convictions was profoundly unfair and unconstitutional."¹

Notwithstanding the defendant’s inflamed rhetoric, the record amply demonstrates that she received a fair trial. The defendant raises a mélange of issues on appeal, including that the State failed to present sufficient evidence of the charged crimes and violated the defendant’s due process rights by suppressing exculpatory evidence. We reject those arguments because they distort the trial court’s holdings or misapply the law. We conclude, however, that one of the defendant’s convictions must be reversed because the legal insufficiency of one of the charges resulted in the spillover of evidence that prejudiced the jury’s consideration of a closely linked charge. We therefore reverse the defendant’s conviction for Official Misconduct. In all other respects, we affirm the trial court’s decisions and the defendant’s convictions.

FACTUAL BACKGROUND

A. The Investigation and The Indictment

Kathleen McGuiness was elected as the State of Delaware Auditor of Accounts in 2018 and was sworn into office in January 2019.² In April 2020, three Office of the Auditor of Accounts ("OAOA") employees who reported to McGuiness contacted the Delaware Department of Justice (the "DOJ") and alleged that she had engaged in misconduct.³ These employees included the OAOA’s fiscal manager, an outgoing administrative auditor, and a senior auditor.⁴ The employees’ chief complaints concerned office spending, McGuiness’s engagement in political activity while working, and the misuse of no-bid contracts.⁵ In addition to their concerns about McGuiness’s misconduct, the employees expressed fear that they would face retaliation for their roles as whistleblowers.⁶

Several months later, McGuiness’s Chief of Staff contacted the DOJ regarding his concern that McGuiness had awarded a state contract to a company called "My Campaign Group" ("MCG") for campaign work and that the contract became more lucrative when MCG changed its name to "Innovate Consulting."⁷ The Chief of Staff reported that McGuiness had directed him to pay an MCG invoice for $1,950 using his state-issued credit card because the invoice had been rejected by the Delaware Division of Accounting.⁸

Later, in October 2020, two more whistleblowers came forward—an administrative assistant and a human resources specialist—citing concerns that McGuiness’s daughter ("Daughter") and Daughter’s friend were on the state payroll while they were living and attending college out of state.⁹ The Chief of Staff also questioned the propriety of Daughter’s employment, suggesting that she did not do much work.¹⁰

Toward the end of 2020, McGuiness emailed the Delaware Department of Technology and Information ("DTI"), asking for the names of "anyone who had requested records for anyone in the auditors [sic] office since Jan 2019."¹¹ In the first few months of 2021, McGuinness placed one of the whistleblowers—the administrative auditor—on a performance improvement plan and fired her Chief of Staff.¹² The Chief of Staff later testified that, although McGuiness cited an inappropriate work relationship as the reason for his termination, that relationship ended months before he was fired.¹³

The DOJ began investigating the allegations against McGuiness in earnest in May 2021.¹⁴ First, an investigator from the DOJ’s Division of Civil Rights and Public Trust (the "Division"), Franklin Robinson, contacted two OAOA casual-seasonal employees to determine whether Daughter and Daughter’s friend were receiving benefits that other casual-seasonal employees were not.¹⁵ Both employees with whom Robinson spoke stated that they were paid less than Daughter and Daughter’s friend and were not permitted to "bank" their hours as Daughter and Daughter’s friend did.¹⁶ The process of "banking" hours allows employees to work extra hours during one pay period and apply those extra hours to a later pay period.¹⁷

The following month, Robinson called Daughter’s friend to follow up on these reports.¹⁸ After the call ended, Robinson received a call from a blocked number, which he later determined belonged to McGuiness.¹⁹ Robinson also received a call from McGuiness’s new Chief of Staff that same day.²⁰ Later that summer, McGuiness’s new Chief of Staff requested that DTI change Daughter’s job title from "Public Information Officer" to "Intern," and McGuiness filed requests to monitor some of her current and former employees’ emails and one of the whistleblowers’ private messages.²¹

Robinson continued his investigation into the fall of 2021, conducting interviews with McGuiness’s current Chief of Staff and Daughter.²² During her interview, Daughter told Robinson that McGuiness’s former Chief of Staff initially interviewed her for the position, but she could not remember what questions she was asked.²³ In response to inquiries about her limited email correspondence—which Robinson had obtained under a search warrant—Daughter told Robinson that she spent "essentially the whole day" on her email.²⁴ Robinson’s investigation also revealed that Daughter’s onboarding paperwork and payroll documents listed McGuiness as her supervisor.²⁵

On September 28, 2021, the DOJ obtained a search warrant for the OAOA office, authorizing a search of:

the books, papers, records and other documents of any officer, department, board, agency, instrumentality or commission of the state government. In this case, the places to be searched are the state offices of the Auditor of Accounts. Though the Attorney General may have right of access to state records and that the expectations of privacy may be diminished in state offices, your affiant believes probable cause nonetheless exists to show that the offices of the Auditor of Accounts reasonably contain evidence of the crimes described above.²⁶

The following day, the DOJ executed the warrant and seized numerous laptops and computers from the OAOA office.²⁷ Following the seizure, on October 8, 2021, the DOJ obtained a warrant to search the digital devices’ contents.²⁸ In an effort to ensure that investigators did not see McGuiness’s privileged communications, the DOJ implemented a filter process for searching the OAOA devices. Under that process, the Delaware State Police High Tech Crimes Unit first searched the devices and provided those search results to a DOJ team, which would be uninvolved in McGuiness’s prosecution (the "filter team"). The filter team reviewed all the material for privileged communications and then sent all non-privileged materials to the prosecution team.²⁹

On October 11, 2021, a grand jury indicted McGuiness for five criminal charges relating to her conduct as the State’s Auditor of Accounts. Count I charged McGuiness with Conflict of Interest in violation of 29 Del. C. § 5805.³⁰ The basis for Count I was McGuiness’s role in hiring Daughter, acting as Daughter’s supervisor, and giving Daughter a "position with advantages unavailable to other employees."³¹

Count II of the Indictment charged McGuiness with felony Theft in violation of 11 Del. C. § 841.³² Daughter’s employment also formed the basis of this count, and the State contended that McGuiness had taken, exercised control over, or obtained property owned by the State of Delaware valued at more than $1,500 when she hired Daughter and gave her benefits not available to other employees.³³

Count III charged McGuiness with Non-Compliance With Procurement Law in violation of 29 Del. C. § 6903.³⁴ This count arose from McGuiness’s decision to award MCG a state contract totaling less than $50,000 so that the contract would not be subject to a public bidding process.³⁵ Additionally, the State posited that the invoices issued under that contract were artificially divided into amounts totaling less than $5,000 in order to circumvent review by the Delaware Division of Accounting.³⁶ The State also alleged that, after a State employee objected to the contracts being awarded to a political campaign company, MCG established another company called Innovate Consulting, and McGuiness awarded Innovate Consulting contracts totaling $77,500.³⁷

Count IV of the Indictment charged McGuiness with Official Misconduct in violation of 11 Del. C. § 1211.³⁸ Count IV alleged that McGuiness engaged in misconduct relating to Daughter’s employment and the MCG contract with an intent to obtain a personal benefit and with knowledge that the conduct was unauthorized.³⁹

Count V charged McGuiness with Act of Intimidation in violation of 11 Del. C. § 3532.⁴⁰ The State alleged that McGuiness used email surveillance and discriminatory office policies to target whistleblowers in a knowing attempt to prevent or dissuade employees from...