Opinion
No. 295, 2007.
Submitted: January 9, 2008.
Decided: January 31, 2008.
Court Below: Superior Court of the State of Delaware in and for New Castle County Cr. ID. No. 0607025498.
Before STEELE, Chief Justice, HOLLAND, and JACOBS, Justices.
ORDER
This 31st day of January 2008, it appears to the Court that:
(1) Defendant-appellant Allen T. Cannon appeals his Superior Court conviction of Reckless Endangering First Degree, Possession of a Firearm During Commission of a Felony, Possession of a Deadly Weapon by Person Prohibited, and Criminal Mischief under $1,000. On appeal, Cannon claims that the trial judge erred by not excluding, sua sponte, certain hearsay testimony by two witnesses.
After consideration, we find that the trial judge did not err by not excluding the witnesses' testimony now challenged. Cannon's counsel decided for tactical reasons to not object to the testimony at trial and the inclusion of the alleged inadmissible testimony was not so clearly prejudicial that it constituted plain error. Accordingly, we affirm.
(2) On the evening of July 31, 2006, someone fired at least four shots at Terrence Dendy (Dendy, Jr.). The target's father, Richard Dendy (Dendy, Sr.) witnessed the shooting. First at the scene, and then later that evening at the police station, both Dendy, Jr. and Dendy, Sr. told the police that the shooter was Cannon and picked Cannon's photograph out of a photo lineup. By the time of trial, however, the two witnesses recanted their identification, testified that they did not know who the shooter was, and presented a version of the events excluding Cannon as the shooter.
(3) At trial, Dendy, Jr. testified that the day before the shooting that he fought with the family of a young girl who had used his car without permission. Dendy, Jr. went to the girl's house to complain to her mother.
The next evening, Dendy, Jr. drove his mother's car to a convenience store operated by his family on 10th Street in Wilmington. At about 8:30 p.m., Dendy, Sr. asked Dendy, Jr. to go to the car to retrieve a phone charger. He accompanied his son to the store door. While Dendy, Jr. was crossing the street towards the car, he heard someone yell "Watch out." He turned around, "saw the gun," and ducked behind the car. When the shooting stopped, Dendy, Jr. got up and started running after the shooter but did not catch him.
Dendy, Sr. testified that as he stood in front of the store watching his son, Cannon passed by, greeted him, and started crossing the street. Then he heard two shots. According to Dendy, Sr., Cannon ran back toward him, after which someone fired three more shots. Dendy, Sr. further testified that he went over to the shooter and told him to stop firing the gun at his son. The shooter then ran away.
(4) Because their trial testimony was factually incompatible with their previous statements to the police identifying Cannon as the shooter, Dendy, Jr. and Dendy, Sr. explained to the jury why they had changed their testimony. Dendy, Sr. testified that he only got a brief glimpse at the shooter because he was focused on his son, but that he identified Cannon as the shooter because "people" told him that it was "Messy" (Cannon's nickname):
And then later I asked people about [who was the shooter] and they said Messy, and I took for granted that it was Messy, but I found out later that it wasn't Messy.
Similarly, Dendy, Jr. testified that he did not get a good look at the shooter and did not know his identity. He explained that his statements to the police at the scene and at the police station were based on "people" or "somebody" telling him that Cannon was the person shooting at him:
I didn't know who it was. I didn't know his name. People told me who it was. Just like on the tape, Detective Selekman said everybody knows him. So, he obviously knew before I got there. So, somebody else told him . . . I told [the detective] what . . . somebody told me who it was.
Dendy, Jr. further testified that, some time after the shooting, he told Cannon's attorney that Cannon was not the shooter, but did not contact the police to give them that information. Dendy, Jr. also testified that he recognized Cannon's face in the photo lineup from the argument that had occurred the day before the shooting and that he picked out "the person that people . . . were saying . . . is the guy."
(4) Cannon's sole claim on appeal is that the trial judge erred by not excluding, sua sponte, testimony by Dendy, Jr. and Dendy, Sr. about what unnamed persons ("people") told them regarding the shooter's identity. Cannon contends that the testimony was inadmissible hearsay. At trial, Cannon's counsel did not object to the admission of the challenged testimony.
(5) The State contends in response that counsel's failure to object at trial "usually constitutes a waiver of a defendant's right to raise the issue on appeal unless the error is plain." Under Delaware Rule of Evidence 103(d), we may take notice of "plain errors affecting substantial rights although they were not brought to the attention of the [trial] court." We have held that plain error review "assumes oversight [and] does not encompass conscious, tactical decisions on the part of trial counsel."
Chance v. State, 685 A.2d 351, 354 (Del. 1996) (citing Probst v. State, 547 A.2d 114, 119 (Del. 1988)).
Ferguson v. State, 642 A.2d 772, 780 (Del. 1994) (citing Tucker v. State, 564 A.2d 1110, 1118-19 (Del. 1989)).
Cannon concedes that counsel's decision not to object was a "deliberate tactical maneuver," because the defense wanted the jury to hear the two witnesses testify about the reasons leading to their initial misidentification of the culprit. Several elements show evidence of the deliberate character of the decision not to object: the testimony at issue was not isolated; both witnesses made repeated references to what "people" had told them; Cannon's counsel elicited those statements, either on direct or on redirect examination; and Dendy, Jr. testified that he had informed Cannon's counsel of the "mistaken" identification several months before the trial.
(6) The State also contends that the statements at issue do not even constitute hearsay. Under D.R.E. 801(c), an out-of-court statement is hearsay if it is offered "to prove the truth of the matter asserted." Here, the "matter asserted" in the challenged testimony that, according to unnamed "people," Cannon was the shooter. The witnesses did not offer this information for its truth, but rather to explain their recantations to the jury. Out-of-court statements offered for some purpose other than to prove the truth of the matter asserted are not inadmissible hearsay. Here, the Dendys' testimony about what "people" had said was admissible because it was offered to explain to the jury why these two witnesses had changed their position.
See Edwards v. State, 925 A.2d 1281, 1291 (Del. 2007) (out-of-court statement was admissible because it was not offered to prove that defendant did not shoot the victim but to impeach the credibility of a State's witness who had testified that defendant had admitted his involvement in the crime to him); Whalen v. State, 434 A.2d 1346, 1355 (Del. 1981), cert, denied, 455 U.S. 910 (1982) (out-of-court statements were admissible to show why police believed defendant was a suspect and were not intended to show that the statements were true).
(7) Cannon argues that "[t]he need for the State to explain why the Dendys had changed their testimony was clearly outweighed by the prejudice to the defendant flowing from the jury being allowed to hear that other `people' had identified Cannon as the shooter," because these out-of-court statements by unknown and unidentified "people" on the street were the only evidence that went to the essential element of the shooter's identity. Cannon relies on Johnson v. State, where we recognized that certain out-of-court statements are inadmissible if, in addition to their clarifying purpose, they may also allow the jury to infer guilt.
587 A.2d 444, 448-50 (Del. 1991) (en banc) ("Problems arise when the [out-of-court] statement to be quoted may serve more than one purpose").
Here, however, the challenged statements about what "people" said were not the only evidence presented to the jury on the issue of identity. The two witnesses testified about their identification at the scene, and the jury also heard the videotaped statements of Dendy, Sr. and Dendy, Jr. at the police station. The jury is the sole judge of witness credibility and was free to believe either the initial, or the later Dendy statements. Because the trial judge's decision to admit the challenged statements was clearly not so prejudicial "as to jeopardize the fairness and integrity of the trial process," we conclude that Cannon has failed to demonstrate plain error. Accordingly, we affirm.
See Pryor v. State, 453 A.2d 98, 100 (Del. 1982) (holding that the jury is the sole judge of a witness's credibility and is responsible for resolving conflicts in testimony).
Morgan v. State, 922 A.2d 395, 402 (Del. 2007).
After conceding that the failure to object to the challenged statements by Cannon's attorney in the Superior Court was likely deliberate, Cannon argues in his Reply Brief (for the first time on this appeal) that his trial counsel ineffectively assisted him — not only by not objecting — but also by not requesting a limiting instruction. Cannon's argument regarding ineffective assistance of counsel will not be considered on direct appeal. See Wright v. State, 513 A.2d 1310, 1315 (Del. 1986); Duross v. State, 494 A.2d 1265, 1267 (Del. 1985).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT: