Opinion
No. 578, 2000
Submitted: April 9, 2002
Decided: June 18, 2002
Court Below: Superior Court of the State of Delaware in and for Kent County Cr. A. Nos. IK99-08-0130, 0133, 0134, 0137, 0138.
Affirmed.
Unpublished opinion is below.
ROGER JOHNSON, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 578, 2000 In the Supreme Court of the State of Delaware. Submitted: April 9, 2002 Decided: June 18, 2002Before VEASEY, Chief Justice, WALSH and STEELE, Justices.
MYRON T. STEELE, Justice.
ORDER
This 18th day of June 2002, upon consideration of the briefs of the parties, it appears to the Court that:
1) In May 2000, a Superior Court jury convicted Appellant Roger Johnson of two counts of Robbery in the First Degree, two counts of Possession of a Firearm During Commission of a Felony and one count of Conspiracy in the Second Degree. The jury acquitted Johnson of two additional counts each of Robbery in the First Degree and Possession of a Firearm During Commission of a Felony. On June 23, 2000, the State filed a Motion to Declare Defendant an Habitual Offender. On November 9, 2000 Johnson filed a document entitled "Motion to Declare 11 Del. C. § 4214(a) Unconstitutional or in the Alternative to Declare 11 Del. C. § 4214(a) Not Applicable to This Defendant." On November 15, the trial judge denied Johnson's motion and declared him an habitual offender. The judge then sentenced Johnson to a mandatory minimum of eighty years to be served at Level V supervision. This is Johnson's direct appeal of his conviction and sentence.
Del. C. Ann. tit. 11 Del. C. § 4214 is Delaware's Habitual Offender Statute.
2) On July 31, 1999, Appellant Roger Johnson (Roger) traveled to Dover with two of his cousins, John Johnson (John) and Ronald Bacon, as well as a third, unrelated individual, Larry Johnson (Larry). At trial, the State presented evidence that, once in Dover, the three Johnsons robbed Eric Tilghman, Darryl Langston, and Jermaine Jones at gunpoint and, soon after, robbed and shot at close range a fourth individual, Bennie Murphy. There was conflicting testimony about whether Roger was actually involved in the robberies and shooting. Both John and Larry entered into plea agreements for charges stemming from these incidents. In addition, at the time of his guilty plea, John had also been charged with Capital Murder in New Castle County for an unrelated attack in Wilmington.
3) At trial, the State offered Bacon's videotaped statement as affirmative evidence under Del. C. Ann. tit. 11 Del. C. § 3507. Among the requirements for the admission of an out of court statement under this provision is that the declarant have made the statement voluntarily. It is clear from the record that, after receiving a Miranda warning, Bacon conditioned his agreement to make a statement on the basis that he not be recorded. The officer interrogating him showed him that an audio recorder on the table was switched off. That officer did not, however, inform Bacon that he was being recorded by a hidden surveillance system. We have held that a statement given subject to certain conditions is not admissible because it violates Miranda unless those conditions have been met.
Draper v. State, Del. Supr., No. 147, 2000, Berger, J. (January 28, 2002).
4) Here, the State did not introduce Bacon's statement against his interests, but as evidence against Roger. To be introduced for this reason, the statement must have been given voluntarily. For purposes of ruling on the voluntary nature of a Section 3507 statement, we have found that the trial judge must determine by a preponderance of the evidence that the declarant made the statement voluntarily. To arrive at a finding on this issue, a trial judge must consider whether, under the totality of the circumstances, the declarant's will "was so overborne that the statements produced were not the product of rational intellect and free will." At trial, Bacon admitted on voir dire that he made the statement voluntarily. Moreover, the record reveals that the trial judge indeed reviewed the statement in the totality of the circumstances and found that Bacon did speak voluntarily. Because there are sufficient facts in the record to support his conclusions, we will not disturb that ruling.
Hatcher v. State, 337 A.2d 30, 32 (Del. 1975).
5) Roger contends that the trial judge erred by refusing to allow questioning during John's direct testimony on the minimum and maximum sentences John faced before he entered into a plea bargain. In this instance, Roger had little need to impeach John's credibility because John, called as a defense witness, testified almost entirely beneficially to Roger's case. The sole exception seems to have been testimony concerning John's guilty plea to a charge that he criminally conspired with Roger. On direct examination, John testified that he, in fact, had conspired with Larry, not Roger. D.R.E. 607 permits Roger to impeach his own witness. Thus, the trial judge properly allowed testimony about the generally favorable terms of the plea agreement to support the defense theory that John pled to a factually incorrect charge because of the benefit he derived from the deal.
6) The judge's narrowly tailored ruling precluded only the discussion of the actual minimum and maximum sentences because they were nearly identical to those faced by Roger himself. We have warned of the possibility that knowledge of potential sentences may interfere with the proper functioning of the jury's deliberative role. In light of this, we find that the trial judge correctly weighed the potential for the sentencing information to prejudice Roger or the State against its probative value to Roger's case. We conclude that the trial judge acted well within his discretion to exclude this testimony under D.R.E. 403. The carefully tailored ruling properly allowed Roger's counsel to examine John about the reasons for the discrepancy between his statements and present to the jury those reasons along with favorable inferences that could be taken from them without improperly introducing the range of punishment that Roger, like John, could potentially face.
Kauffman v. State, 452 A.2d 945, 947 (Del. 1982).
7) At trial, Roger's counsel also attempted to introduce into evidence the record of Larry's plea agreement even though Larry did not testify. In general, the courts allow the introduction of evidence of criminal conduct only for the purpose of attacking the credibility of a witness. Here, Roger sought to introduce this testimony to bolster John's testimony that he had conspired with Larry. In light of the fact that the State's case rested on a conspiracy among all three Johnsons, Larry's plea of guilty has, at best, only marginal relevance to the question of Roger's guilt. Indeed, it does nothing to prove or disprove Roger's involvement in the robberies and shooting at issue in this case. Given the minimal aid that document could provide the jury in this case, we cannot find that the trial judge abused his discretion when he determined that the potential prejudice arising from the jury being aware of Roger's potential sentence substantially outweighed the probative value of that information.
As with John, Larry entered a guilty plea on substantially the same charges as those on which the jury convicted Roger.
8) Finally, Appellant argues that Delaware's habitual offender statute is unconstitutional because the statute lacks guidelines for its application by the State and that it removes sentencing from the discretion of the Court, violating both the Equal Protection and Due Process clauses of the Fourteenth Amendment to the United States Constitution. This argument is without merit. In Reeder v. State, and more recently in Hawkins v. State we reaffirmed our view that the State has the discretion to seek habitual offender status for each count or none. The State may constitutionally exercise its prosecutorial discretion to seek an enhanced sentencing in the absence of an arbitrary or capricious application. The record before us does not support such an allegation here.
783 A.2d 124, 2001 WL 355732 (Del. 2001) (Steele, J., order).
792 A.2d 189, 2002 WL 384436 (Del. 2002) (Walsh, J., order).
Ward v. State, 414 A.2d 499 (Del. 1980) (citing Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and hereby is, AFFIRMED.