Opinion
No. 532, 2002
Submitted: June 4, 2003
Decided: October 2, 2003
Court Below-Superior Court of the State of Delaware, in and for Sussex County in IS01-11-0461 — 0464; IS01-11-0468 — 0471; IS01-11-0473 — 0476; IS01-12-0768, 0769; IS01-12-0773 — 0779; IS-01-12-0707 — 0718. Def. ID No. 0111006853
Before VEASEY, Chief Justice, HOLLAND and STEELE, Justices.
ORDER
This 2nd day of October 2003, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) On July 1, 2002, after a five-day trial, Alvin L. Drummond was convicted by a Sussex County Superior Court jury of one count of Attempted Murder in the First Degree, eights counts of Robbery in the First Degree, one count of Burglary in the First Degree, three counts of Kidnapping in the Second Degree, four counts of Aggravated Menacing, one count of Conspiracy in the Second Degree, one count of Wearing a Disguise During the Commission of a Felony, one count of Possession of a Firearm by a Person Prohibited, and thirteen counts of Possession of a Firearm During the Commission of a Felony.
Drummond was sentenced on August 23, 2002, to life imprisonment plus ninety-six years. This is Drummond's direct appeal.
(2) Drummond's counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Rule 26(c) is twofold. First, the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal. Second, the Court must conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.
Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
(3) Drummond's counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. By letter, Drummond's counsel informed Drummond of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw, the accompanying brief and the complete trial transcript. Drummond was also informed of his right to supplement his attorney's presentation. Drummond responded with a brief that raises three issues for this Court's consideration. The State has responded to the position taken by Drummond's counsel as well as to the issues raised by Drummond and has moved to affirm the Superior Court's judgment.
(4) The evidence at trial established that on Friday, November 9, 2001, at approximately 11:00 p.m., Valerie Harmon's home in Frankford, Delaware was invaded by a masked man who robbed at gunpoint Harmon and her family and a visiting neighbor, Conswella Ayres. At the same time that the masked man was robbing the occupants inside of Valerie Harmon's house, two other unmasked men, who were also armed with guns, were robbing other Harmon family members and friends who were playing cards and socializing in Harmon's garage.
Family members in the house included Valerie Harmon's seventeen year-old son, eleven — year old daughter, and seven year-old granddaughter.
After robbing Harmon and the others inside of the house, the masked man forced everyone from the house and into the garage where they joined the other robbery victims who had been forced by the two unmasked robbers to lie face down on the garage floor.
(5) Soon after the masked man forced the occupants of the house to join those in the garage, a vehicle drove into the Harmon driveway. A passenger, Thomassena White, who lived at the Harmon residence and who was returning home from work, got out of the car intending to go into the house. As she approached the house, however, Ms. White was accosted from behind by the masked man, who forced her to go to the garage. The masked man then approached the vehicle that was still parked in the Harmon driveway. The masked man opened the driver's door and, after a brief exchange of words with the driver, shot several times at point blank range, hitting the driver, Travis White, in the leg.
A third person in the car, Tyrone Brackett, jumped from the car and ran.
(6) Upon hearing the gunshots, the two unmasked robbers fled the garage, and the area, on foot, disposing of their guns in the woods. They were apprehended by police ninety minutes later. Drummond was arrested two days later on November 11, 2001.
(7) Numerous witnesses testified at Drummond's trial as to the events of November 9, 2001. One of the witnesses was nineteen year-old Brandon Gibbs, who was one of the two unmasked men who had robbed the occupants of Valerie Harmon's garage. Gibbs testified that Drummond was the masked man who robbed the occupants of Harmon's house.
(8) Gibbs testified that Drummond, who was driving, and another man, Mark Tingle, picked him up in Seaford at around 9:00 p.m. on November 9, 2001.
Gibbs had a handgun in his possession. According to Gibbs, Drummond, Gibbs, and Tingle, went to Conswella Ayres' house, that was located down the street from Valerie Harmon's house, where Drummond used the telephone. Drummond then drove Gibbs and Tingle to the Harmon residence and parked alongside the road in a wooded area a short distance from the house. Gibbs testified that Drummond gave Tingle a handgun and instructed Gibbs and Tingle to go to Harmon's garage and rob everybody there while Drummond went to the house.
Conswella Ayres is the mother of two of Drummond's children.
Then, according to Gibbs, Drummond removed a mask from the trunk of his car, put the mask on, and all three men walked toward the house and the garage.
(9) As instructed by Drummond, Gibbs and Tingle went inside the garage. Once there, they threatened the occupants with handguns and removed from them money, cell phones and, in one case, a buck knife. Approximately twenty minutes later, after hearing gunshots, Gibbs and Tingle ran from the garage and looked for Drummond's car, but the car was gone. Gibbs and Tingle then began walking, throwing their guns away in the woods. Ninety minutes later, they were picked up by the police and questioned about the robberies.
Gibbs and Tingle were charged with numerous offenses stemming from the incident on November 9, 2001. Gibbs pled guilty on June 10, 2002, to one count of Robbery in the Second Degree and one count of Possession of a Firearm During the Commission of a Felony. State v. Gibbs, Del. Super. Ct., No. 0111006859, Graves, J. (June 10, 2002). As part of his plea agreement, Gibbs agreed to testify at Drummond's trial. At the time of Drummond's trial, Gibbs was awaiting sentencing. Tingle, who refused to testify at Drummond's trial, was found guilty of eleven charges stemming from the robberies and was sentenced. His conviction and sentence were affirmed on direct appeal. Tingle v. State, 2003 WL 141269 (Del.Supr.).
(10) On appeal, Drummond has raised three issues for this Court's consideration. Drummond claims that (i) he was prejudiced by misstatements made by the prosecutor during the State's closing and rebuttal arguments, (ii) the trial court abused its discretion when it admitted Conswella Ayres' out-of-court taped statement, and (iii) he was denied effective the assistance of counsel.
Drummond's claims are without merit.
(11) Drummond cites to several excerpts from the prosecutor's closing and rebuttal arguments that, according to Drummond, misstate the testimony at trial. Specifically, Drummond complains that the prosecutor (i) misstated the time of the robbery, (ii) misstated a witness' testimony about the time of the robbery, (iii) mischaracterized a witness' testimony about the position in which the get-away car was parked, and (iv) misstated that one of the robbers wore gloves. None of the prosecutor's statements were objected to at trial.
(12) We review the prosecutor's uncontested misstatements for plain error. In this case, to constitute plain error, the prosecutor's misstatements, either individually or cumulatively, must have been so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of Drummond's trial. Indeed, the prosecutor's misstatements "must be so clear and defense counsel's failure to object so inexcusable that a trial judge, in the interest of fundamental fairness, has no reasonable alternative than to intervene sua sponte and declare a mistrial or issue a curative instruction."
Derose v. State, ___A.2d___, 2003 WL 21998576 (Del.Supr.); Warren v. State, 774 A.2d 246, 255 (Del. 2001); Del. Supr.Ct.R. 8.
Derose v. State, ___A.2d___, 2003 WL 21998576 (Del.Supr.).
Id. (quoting Trump v. State, 753 A.2d 963, 964 (Del 2000)).
(13) Drummond claims that the prosecutor misstated or misrepresented the time of the robberies when he stated, first, in his opening statement, that the robberies took place at "approximately 11:00, 11:30 at night," and later, in his closing statement, that the masked individual entered the Harmon residence "at 10:30 — approximately 10:00." Contrary to Drummond's contentions, however, these contrasting statements did not misstate or misrepresent the evidence. There were numerous witnesses to the robberies on November 9, 2001. The witnesses' estimates of the time that the robberies took place were imprecise, but they were mostly in the 10:00 to 11:00 p.m. range.
Tr., Vol. E, at 5 (July 1, 2002).
Id. at 17.
(14) Second, Drummond complains that the prosecutor misquoted Brandon Gibbs' testimony with respect to how the get-away car was parked. It is true that in his closing argument, the prosecutor mistakenly stated that Gibbs had testified that the get-away car was parked head out. The misstatement was not, however, so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial. Whether the get-away car was parked head in, head out, or alongside the road, the thrust of Gibbs' testimony about the car was that it was gone when he went to look for it after he fled Valerie Harmon's garage.
Gibbs had actually testified that the car was parked alongside the road. When the prosecutor asked Gibbs whether the car was "backed in so the headlights were facing the road or was front in," Gibbs testified that he could not recall. See Tr., Vol. C., at 135 (June 26, 2002).
(15) Similarly, Drummond complains that the prosecutor in rebuttal argument stated that the masked individual wore gloves when the record did not support such a statement. Drummond is correct that the record does not support the prosecutor's statement that the masked individual wore gloves; however, the prosecutor's misstatement was not so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial. The presence or absence of gloves worn by the masked robber was of no apparent consequence to the case.
(16) Finally, Drummond complains that the prosecutor misrepresented a witness' testimony as to the time of the robbery. In his rebuttal argument, the prosecutor stated that Sol Feliciano, a defense alibi witness, "testified repeatedly" as to the time of day, i.e., "11:00 [p.m.]," that Drummond was at her home in Georgetown. Although Feliciano did testify that Drummond arrived at her apartment in Georgetown "a little after 11:00," the transcript reveals that Feliciano testified repeatedly as to the date, i.e., "November 11," of Drummond's visit, and not the time, as stated by the prosecutor.
Tr., Vol. E, at 53 (July 1, 2002).
Tr., Vol. D, at 35 (June 27, 2002).
The transcript reveals that Drummond's defense counsel initially misstated the date when he questioned Feliciano on direct examination. See Tr., Vol. D, at 34 (June 27, 2002). Eventually, however, Drummond's defense counsel was able to elicit from Feliciano that she had seen Drummond on a Friday; and on cross-examination, Feliciano testified that she had been wrong when she testified earlier that the date was November 11. See Tr., Vol. E, at 8-9 (July 1, 2002).
(17) The prosecutor's confusion regarding Feliciano's testimony as to the time and/or date of Drummond's visit, as well as the other prosecutorial misstatements alleged by Drummond, did not constitute plain error. There is no indication in this record that the prosecutor intentionally misstated the evidence or misled the jury. Viewed individually or collectively, the misstatements were not so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of Drummond's trial.
See Morris v. State, 795 A.2d 653, 659 n. 12 (Del. 2002) (citing to Hughes v. State, 437 A.2d 559, 567 (Del. 1981)).
(18) Next, Drummond complains that the trial court abused its discretion when admitting Conswella Ayres' taped out-of-court statement to the police.
According to Drummond, Ayres' statement implicating Drummond had been coerced by the police and contained falsehoods and hearsay and "falls under fruits of the poison tree."
(19) The record reflects that Ayres was called as a prosecution witness. Ayres had been present when the masked individual entered Valerie Harmon's home, and she may have been aware of Drummond's plans. Ayres' trial testimony, however, favored Drummond. Consequently, the State sought, pursuant to title 11 section 3507 of the Delaware Code, to introduce into evidence Ayres' out-of-court taped statement to the police in which she implicated Drummond in the robberies. Drummond's defense counsel, who had previously reviewed Ayres' taped statement, did not object to its admission nor did he accept the trial court's explicit offer for voir dire of the police officer on the issue of voluntariness.
Ayres was compelled to testify under a grant of immunity. See Del. Code Ann. tit.11, § 3506 (2001).
(20) After the tape was admitted into evidence and played for the jury, Ayres testified on cross-examination that she had lied in her statement, and that Drummond was not the person who had committed the robberies on November 9, 2001. According to Ayres, when the detective threatened to charge her with robbery, she told the detective "what he wanted to hear," i.e., that Drummond had committed the robberies.
Tr., Vol. C., at 109 (June 26, 2002).
(21) On appeal, Drummond challenges the admissibility of Ayres' taped out-of-court statement by questioning the voluntariness of the statement.
Title 11 Del. C. § 3507 of the Delaware Code provides, in pertinent part, that "[i]n a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value" (emphasis added).
Drummond, however, did not properly challenge the voluntariness of Ayres' statement prior to its admission into evidence. Consequently, we review the claim under the plain error standard, i.e., for error that is so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.
Hubbard v. State, 2001 WL 1089664 (Del. Supr).
Id.
(22) There was no plain error in the admission of Ayres' out-of-court statement. At the time the statement was admitted, the issue of voluntariness was not in dispute. Drummond's counsel agreed with the Superior Court, and the record supports, that the State laid a proper foundation for the admission of the statement pursuant to Section 3507. Moreover, Drummond declined the Superior Court's explicit offer for voir dire of the police officer on the issue of voluntariness, and he did not object to the admission of the tape. Under these circumstances, Ayres' statement was properly admitted under Section 3507. From that point on, the issue of voluntariness, and the weight of Ayres' conflicting of accounts of November 9, were matters properly for the jury's consideration. It was the jury's role as the trier of fact to resolve any issues concerning Ayres' credibility and to consider any claim of involuntariness as it affected the weight of the evidence.
A two-part foundation must be established before a witness' out-of-court statement may be offered into evidence pursuant Section 3507: (i) the witness must testify as to the truthfulness of the statement; and (ii) the witness must testify as to the events perceived or heard. Feleke v. State, 620 A.2d 222, 226-67 (Del. 1993).
Hatcher v. State, 337 A.2d 30, 32 (Del. 1975).
Tyre v. State, 412 A.2d 326, 330 (Del. 1980); Riley v. State, 1998 WL 780354 (Del.Supr.).
(23) Finally, Drummond generally accuses defense counsel of ineffective assistance. It is settled law, however, that this Court will not consider a claim of ineffective assistance of counsel for the first time on direct appeal. Accordingly, we will not review Drummond's ineffective assistance of counsel claim in this appeal.
Desmond v. State, 654 A.2d 821, 829 (Del. 1994)
(24) The Court has reviewed the record carefully and has concluded that Drummond's appeal is wholly without merit and devoid of any arguably appealable issue. We are also satisfied that Drummond's counsel has made a conscientious effort to examine the record and has properly determined that Drummond could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to withdraw is moot.