Opinion
No. 242, 2003.
Submitted: June 8, 2004.
Decided: July 2, 2004.
Superior Court of the State of Delaware in and for New Castle County, Cr.I.D. No. 0111002808.
Before HOLLAND, BERGER and JACOBS, Justices.
ORDER
This 2nd day of July 2004, it appears to the Court that:
(1) Appellant Andre Fletcher ("Fletcher") appeals his Superior Court conviction of second-degree murder and related charges. The convictions arise out of an incident in which Fletcher admittedly shot Richard Holland, but claimed that he acted in self-defense.
The victim, Richard Holland, is not related to Justice Randy J. Holland of this Court.
(2) Fletcher was convicted of one count each of Murder in the Second Degree, Possession of a Firearm During Commission of a Felony, and Possession of a Deadly Weapon by a Person Prohibited, as a result of a fatal shooting that occurred at 1:50 a.m. on November 3, 2001.
(3) At trial, Fletcher claimed self-defense, and testified as follows: Holland and two other men tried to rob him at gunpoint. After an exchange of words, Holland pulled out a gun and Fletcher (who had extensive training in the martial arts) "charged him." Both men struggled over the weapon, bumped into a van, and the gun went off twice — "as quick as you can blink." On a videotaped police interview, however, Fletcher made statements that the prosecution regarded as an admission by Fletcher that the second shot was not fired accidentally.
(4) The State presented two purported eyewitnesses to the shooting. The first, Jerry Taylor, a friend of the victim (Holland), testified that he had planned to meet Holland at the place and time of the shooting. As Taylor approached Holland, he saw Fletcher walking up to the victim, who was standing alone. Although Taylor did not hear any words being exchanged, he did see the victim's hands go up into the air, and immediately thereafter he (Taylor) heard one gunshot. Taylor ducked behind a car, heard a second shot "like seconds afterward," then saw Holland fall to the ground and Fletcher run down the alley.
(5) The second eyewitness, Marvin Cross, testified that he was sitting in his car listening to music in front of the house of his friend, Ivan Simonet, for whom he (Cross) was waiting. Cross testified that although he was not focusing on the victim, he saw the events out of the corner of his eye. When asked if he was under the influence of drugs or alcohol at that time, Cross responded "no, probably not yet." The gunshots and the flash from the barrel drew his attention to the scene, which was five or six houses up from where Cross was parked. Out of the corner of his eye, Cross saw Fletcher approach the victim. It appeared that Fletcher and Holland exchanged words, although Cross could not hear the words. Cross saw the victim put his hands out to the sides with palms up, heard the two shots, and then saw the victim fall to the ground and Fletcher running right past his car. The police arrived within a few seconds, but Cross drove off without talking to the police. Shortly thereafter, Cross returned and talked with Simonet about the shooting. A few days later, Cross contacted the Wilmington Police and told detectives the story recited above.
(6) The defense contended that Cross was not, in fact, a witness to the shooting, but, rather, had obtained information about the shooting from Simonet and others in order to "sell" it to the police to seek "a deal" for his wife, who was facing criminal charges. At trial, Fletcher sought to impeach Cross's testimony with evidence that Cross came to the scene only after the shooting and asked Simonet what had happened.
(7) After his conviction, Fletcher was sentenced to a total of 29 years at Level 5 incarceration, followed by one year at Level 4. On appeal, Fletcher claims that (i) his due process rights were violated because he was denied access to the DELJIS criminal history information of the members of the jury pool; (ii) the trial court erred by sustaining hearsay objections to the conversation between Cross and Simonet, and (iii) the trial court erred by instructing the jury on the lesser-included offenses of Murder in the Second Degree and Manslaughter.
(8) Fletcher's due process claim involves a question of law that is reviewed de novo. That claim arises out of the following facts: immediately before the jury was selected, the State commented on one juror's felony conviction and agreed to inform the defense if any juror had been convicted of a crime involving dishonesty. Fletcher sought a court order affording him equal access to the DELJIS information in the State's possession. The Superior Court denied Fletcher's motion under 11 Del. C. § 8513(g). That ruling, Fletcher argues, violated his due process rights, by giving the State an unfair advantage in the form of exclusive access to potential jurors' criminal and traffic records. Fletcher claims that under the two-pronged test of McBride v. State, he was entitled to equal access because (i) the information was not available through other means; and (ii) the State used the information in jury selection, as evidenced by its disclosure to the trial court that one potential juror had a felony theft conviction.
State v. Guthman, 619 A.2d 1175, 1177 (Del. 1973).
11 Del. C. § 8513(g) states:
g) Notwithstanding any law or court rule to the contrary, the dissemination to the defendant or defense attorney in a criminal case of criminal history record information pertaining to any juror in such case is prohibited. For the purposes of this subsection, "juror" includes any person who has received notice or summons to appear for jury service. This subsection shall not prohibit the disclosure of such information as may be necessary to investigate misconduct by any juror.
477 A.2d 174 (Del. 1984).
(9) The State responds that Section 8513(g) precludes the defense from obtaining the DELJIS information, and that therefore, the trial court correctly applied the law. Additionally, the State argues, the McBride test is not satisfied here because under McBride, a defendant is not entitled to the juror information given the limited discovery available in criminal cases; moreover, peremptory challenges are not constitutionally required. In McBride, the court ruled that the defendant had failed to show how nondisclosure of the DELJIS information impaired her ability to obtain an impartial jury. So too (the State argues), Fletcher failed to do that here.
(10) Under 11 Del. C. § 8513(g), a defense attorney is prohibited from receiving the information about jurors that Fletcher seeks here. Nor has Fletcher made the showing required by McBride. Therefore, his first claim of error fails.
(11) Fletcher next claims that the trial court erroneously sustained hearsay objections to certain testimony relating to conversations between Cross and Simonet. This Court reviews admissibility of evidence questions under an abuse of discretion standard. An abuse of discretion occurs when "a court has . . . exceeded the bounds of reason in view of the circumstances, [or] . . . so ignored recognized rules of law or practice so as to produce injustice."
Lilly v. State, 649 A.2d 1055 (Del. 1994).
Firestone Tire Rubber Co. v. Adams, 541 A.2d 567, 570 (Del. 1988).
(12) Fletcher sought to impeach Cross by showing that after the shooting, Cross gathered information from Simonet to "sell" to the Wilmington Police, thereby suggesting that Cross was not an eyewitness. Fletcher's claim of error flows from the following testimony that occurred during Cross' cross-examination:
Q: Okay. Who did you talk to?
A: I can't say, per se. I talked to Ivan [Simonet].
Q: All right. What did Ivan tell you?
A: He didn't have to tell me anything.
Q: I don't know what he had to tell you. You said you talked to him. Did he tell you anything?
The State then objected on the grounds of hearsay. That objection was sustained.
(13) Fletcher also relies upon the following colloquy which occurred during Ivan Simonet's testimony as a defense witness:
Q: All right. Now, did you have a conversation with Marvin Cross about the shooting? You can answer yes or no.
A: Yes.
Q: Okay. Can you tell us what Marvin Cross said to you or asked you about the shooting?
A: Well, when I saw Marvin Cross, he had drove up —
The State also objected to this testimony on hearsay grounds. That objection was also sustained.
(14) Fletcher argues that those rulings constituted error, because the statements were not hearsay, as they were not being offered for the truth of their contents. Rather (Fletcher claims) the statements were offered to impeach Cross by showing that Cross was not a witness to the shooting. The State responds that the statements were "clearly [offered] for the truth" of their contents and that the trial court properly sustained the objection. Moreover, the State argues, admitting the statements might have caused jury confusion, because the jury might believe that the statements were offered as proof of a fact about the actual shooting.
(15) Assuming without deciding that the trial court's exclusion of the testimony was error, the error was harmless, because during the direct examination of Simonet, Fletcher was able to elicit the very testimony he desired:
Q: What did you tell Marvin about the shooting?
A: That a friend of ours — we call him Fontaine — had been shot.
Q: And why did you tell Marvin that?
A: Because he drove up and asked.
Q: And he asked you what happened after the shooting occurred? He asked you what happened?
A: Yes.
For these reasons, Fletcher's second claim of error also fails.
(16) Fletcher's third claim is that the trial court erred by instructing the jury on the lesser-included offenses of Murder Second Degree and Manslaughter (in addition to the indicted offense of Murder First Degree). This Court reviews de novo a claim that the trial court erred as a matter of law in instructing the jury.
Lewis v. State, 626 A.2d 1350, 1354 (Del. 1993).
(17) Fletcher asserts that because he presented evidence of self-defense, an instruction on a lesser degree of homicide was incompatible with the State's contention that the murder was intentional. Furthermore, Fletcher urges, there was insufficient evidence to support a finding of recklessness, which is required to convict for both of the lesser-included offenses. The State responds that an ample basis for instructing on the lesser-included offense is found in Fletcher's videotaped interview with police, which was presented as evidence at the trial. We agree.
(18) The standard for instructing a jury on lesser-included offenses is 11 Del. C. § 206(c), which states "[t]he court is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense." Having reviewed the record, we conclude that there is a rational basis in the videotaped interview evidence for the trial court to have instructed the jury on the lesser-included offenses. Accordingly, this claim lacks merit as well.
NOW, THEREFORE, IT IS ORDERED that the decision of the Superior Court is AFFIRMED.