Opinion
I.D. No. 0102019547
Submitted: June 27, 2002
Date Decided: July 30, 2002
ORDER
Upon consideration of defendant's motion for a new trial based on newly discovered evidence, the State's response thereto and relevant case law, it appears to the Court that:
(1) The defendant, Denise Jeter ("Jeter"), was indicted on September 24, 2001 on charges of possession with intent to deliver a narcotic schedule II controlled substance, use of a dwelling for keeping controlled substances, possession of drug paraphernalia, and two counts of endangering the welfare of a child. These charges stemmed from the execution of a search warrant at 905 Clifford Brown Walk by the Wilmington Police on February 16, 2001. On that occasion, Wilmington Police Detective Richard Armorer, along with Officer Witte and his K-9, entered the residence located at 905 Clifford Brown Walk and encountered Jeter. Although Jeter was on the first floor, she did not respond to their request to open the door and therefore they entered on their own. Detective Armorer, Officer Witte and the K-9 proceeded to check the residence for the presence of illegal drugs and the K-9 alerted near an oven in the kitchen. Detective Armorer checked the oven and discovered a plastic bag containing an off-white powder which field-tested positive for cocaine. He also discovered in the kitchen a clear plastic bag containing numerous empty zip lock bags. Venturing further in the house, the K-9 also alerted on a cardboard box that was located in the second floor front bedroom. Upon moving the box, the police discovered a brown paper bag was discovered that contained $844.00 of United States Currency. The police also discovered a scale. Jeter was arrested on the aforementioned charges on April 12, 2001.
(2) A jury trial commenced on May 29, 2002. Jeter testified at trial that she had no knowledge of the drugs and drug paraphernalia. Jeter told the jury that at the time of the search she was visiting her daughter, Marocka Jeter, and helping her pack. She testified she did not live at 905 Clifford Brown Walk and asserted that she lived with one of her other children at a different residence. The State's witnesses testified that there was no evidence of packing at the residence, Jeter's claimed addresses were different than that listed on her State identification card, and Jeter was arrested in front of 905 Clifford Brown Walk on April 12, 2001. Further, the State presented evidence that when the search warrant was executed, Jeter was observed exiting the kitchen where the drugs and paraphernalia were later discovered. The drug paraphernalia was on the kitchen table in plain view. On May 30, 2002 the jury returned a verdict of guilty as to all counts.
(3) Jeter timely moved the Court pursuant to Superior Court Criminal Rule 33 for a new trial based on newly discovered evidence. Jeter discovered, post-trial, that 905 Clifford Brown Walk was sold to Centex Home Equity on March 13, 2001 by the Sheriff of New Castle County. This fact, according to Jeter, supports her defense that she was not living at that address and impeaches the credibility of State's witness who testified that Jeter was arrested in front of 905 Clifford Brown Walk. Jeter claims that the newly discovered evidence raises or could raise reasonable doubt in the jurors' minds about the veracity of the testimony of the police. In response, the State argues that evidence of the Sheriff's sale is not probative on the issue of Jeter's residence and, in any event, would not have changed the jury's verdict.
(4) The standard for granting a new trial on the ground of newly discovered evidence is well settled in Delaware. A motion for a new trial based on newly discovered evidence is governed by Superior Court Criminal Rule 33 and is addressed to the Court's discretion. The defendant must establish that: (1) the evidence could not have been discovered before trial by the exercise of due diligence; (2) the evidence is not merely cumulative or impeaching; and (3) the evidence would probably change the outcome of a new trial. When analyzing the new evidence, the Court must determine whether the jury's verdict would be changed by it. Before the Court may grant a new trial, the newly discovered evidence must satisfy all three criteria.
State v. Lynch, 128 A. 565 (Del. 1925); Lloyd v. State, 534 A.2d 1262 (Del. 1987); State v. Joyner, 1996 WL 111129 (Del.Super.).
Johnson v. State, 628 A.2d 83 (Del. 1993).
State v. Middlebrook, 1998 WL 960770 (Del.Super.) (citations omitted).
Id.
Lloyd v. State, 534 A.2d 1262 (Del. 1987).
(5) For present purposes, the Court will assume without deciding that the newly discovered evidence, namely, a Sheriff's deed for 905 Clifford Brown Walk, could not have been discovered by due diligence before trial. Considering Jeter's arguments, however, this is a fairly big assumption. For example, this property was sold to Centex Home Equity on March 13, 2001 and the deed was signed and recorded with the New Castle County Recorder of Deeds on May 11, 2001. The deed is a public document, which was recorded in New Castle County more than a year before trial commenced. Jeter obviously knew there would be a sale of the residence because her defense to the charges rested upon her testimony that she was assisting her daughter complete a move from 905 Clifford Brown Walk and her daughter was forced to move because the landlord had lost the property in foreclosure proceedings.
(6) Turning to the second requirement, Jeter claims that the State provided no notice that it intended to introduce testimony placing her at 905 Clifford Brown Walk on the day of her arrest. Jeter argues that the location of her arrest was a "critical contention," and had the State provided timely notice:
The defense would have had a pre-trial opportunity to investigate and discover the Sheriff's sale . . . on March 13, 2001 which could have raised a reasonable doubt as to the veracity of the State's' witness in this regard.
It seems clear that the probative value of the newly discovered evidence is for impeachment purposes only. As stated above, impeachment evidence submitted in support of a motion for a new trial is an insufficient ground upon which to grant a new trial.
Def's. Mot. New Trial at 2.
(6) As to the third requirement, the Court is not persuaded that the introduction of this evidence would change the outcome of a new trial or the jury's verdict. Its probative value is, at best, limited, especially in light of all of the other evidence proffered by the State. Jeter was present and exiting a room in the house where drugs and paraphernalia were discovered. Additional evidence was located in another room in the house. Jeter claimed she did not reside at that address but provided conflicting evidence regarding her alleged actual residence. She further alleged that she was visiting her daughter to help her pack, but more than one of the State's witnesses testified that they saw no signs of packing in the house. Finally, four young children and two teenagers were with Jeter, the only adult, when cocaine, baggies, a scale and $844.00 of United States Currency were discovered, hidden in various places throughout the house. For these reasons, Jeter's newly discovered evidence does not warrant a new trial.
(7) Under these circumstances, the Court concludes that Jeter is not entitled to a new trial. Accordingly, the motion for a new trial is hereby DENIED.
IT IS SO ORDERED.