Opinion
No. 651, 2002
Submitted: May 28, 2003
Decided: July 8, 2003
Court Below: Superior Court of the State of Delaware in and for New Castle County Cr. I.D. No. 0110011346A
Affirmed.
Unpublished opinion is below.
TEREK DOWNING, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 651, 2002 Supreme Court of Delaware. Submitted: May 28, 2003 Decided: July 8, 2003
Before VEASEY, Chief Justice, HOLLAND and BERGER, Justices.
ORDER
Carolyn Berger, JUSTICE
This 8th day of July, 2003, on consideration of the briefs of the parties, it appears to the Court that:
1) Terek Downing appeals from his conviction, following a jury trial, on two counts of first degree robbery, two counts of possession of a deadly weapon during the commission of a felony, second degree conspiracy and second degree assault. He argues that the trial court erred in denying his motion for a mistrial, which was based on the last minute production of a witness's exculpatory statement.
2) On October 16, 2001, Downing's girlfriend, Erica Garnett, picked him up and drove him to 23rd Street, Wilmington, Delaware, to pick up another man. Garnett did not know the other man, but Downing called him "Dog." Garnett drove the two men to a Foreman Mills store, where Dog bought a dark gray sweatshirt. Garnett then drove the men to the South Bridge area of Wilmington, where she was told to park the car and wait. The two men went around the corner and when they returned, they were running. They were both wearing sweatshirts (one dark gray and one black) and Downing was carrying a black bandana.
3) Downing told Garnett to drive back to the place she had picked him up earlier that day. He also gave her a roll of quarters and told her to wash clothes. After Garnett dropped the two men off, she drove to a friend's house and was stopped by the police.
The officers searched her car and found a "whole bunch of money" in the glove compartment that had not been there before Garnett picked Downing up, as well as two bandanas and a Foreman Mills shopping bag.
4) At the same time that Garnett was waiting in the car for Downing and Dog, two men wearing dark sweatshirts robbed Kowosky's Market, which is located in South Bridge. Jayesh Shah and his brother, Gaurang Shah, are the owners of the store.
Jayesh testified that the two men had guns, and one told him, "This is a hold up — don't move and lay down." The shorter man hit Jayesh several times in the head with his weapon and then removed the cash from the store's cash register. The taller man brought Gaurang over to the cash register, holding a gun to his head. After the taller man asked Gaurang about where to find the money, the shorter man took Jayesh into the office to open the safe. The two men fled with more than $3,500 in bills bundled in rubber bands, coins, and food stamps. Although they wore scarves over their faces during the robbery, they removed the scarves as they left the store. Jayesh got a good look at the taller man and identified him as Downing.
5) On the morning of trial, the State provided Downing with the tape recording of Garnett's statement to the police. Downing requested time to review the tape and the trial court agreed to delay opening testimony until the following day. On the second day, Downing asked for a mistrial. He argued that Garnett's statement included Brady material that should have been disclosed earlier. Downing's counsel claimed to have been prejudiced by the late production because Garnett mentioned an address for Dog, and counsel would have tried to locate and interview Dog if he had known the address before trial. The trial court denied Downing's motion and Downing was convicted on all charges.
6) Brady v. Maryland holds that the State may not withhold from a defendant exculpatory evidence that is material either to guilt or punishment. Where the so-called Brady evidence is disclosed at the last minute, the court must decide whether the "delayed disclosure precluded . . . effective use of the information at trial."
7) We are satisfied that, to the extent that the Garnett statement contained any Brady material, Downing suffered no prejudice. At the beginning of the police interview, Garnett apparently was trying to protect Downing. She misinformed the police about the clothing he was wearing and she said that he was walking, not running, when he returned to the car at the South Bridge stop. Later in the statement, she corrected her testimony on those two points. Since Downing had the opportunity to review the tape prior to the start of trial, he was free to point out those inconsistencies during cross-examination.
8) Downing does not directly dispute his ability to impeach Garnett. Instead he argues that he learned Dog's address from Garnett's statement and did not have the opportunity to locate Dog to determine whether he could corroborate Garnett's exculpatory statements. This argument lacks merit. Garnett did not know Dog. It was Downing who directed Garnett to pick up Dog at the 23rd Street location. Thus, if Downing's counsel wished to find or interview Dog, he could have done so at any time by asking his own client for the address.
Brady v. Maryland, 373 U.S. 83 (1963).
Id.
Lilly v. State, 649 A.2d 1055, 1057 (Del. 1994).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.