Opinion
No. 157, 2003.
Submitted: October 27, 2003.
Decided: January 13, 2004.
Superior Court of the State of Delaware in and for New Castle County, Cr. I.D. No. 0105015446.
Before VEASEY, Chief Justice, HOLLAND and BERGER, Justices.
ORDER
This 13th day of January, 2004, on consideration of the briefs of the parties, it appears to the Court that:
1) Joseph Galloway appeals from his convictions, following a jury trial, on two counts of attempted rape first degree, assault third degree, and terroristic threatening. He argues that the Superior Court erred in: (i) denying his motion to suppress a photographic identification; and (ii) denying his motion for a new trial based on newly discovered evidence.
2) At about 4:00 a.m. on May 10, 2001, Yvonne Davis was walking to the bus stop at 4th and Church Streets, Wilmington, Delaware, on her way to work at the DuPont Experimental Station. As she passed a gasoline station, she noticed Galloway, a person she had seen numerous times in the neighborhood. Galloway asked Davis for a cigarette, but she told him she did not smoke. Then he asked her for a match, but she did not have any matches, either. Galloway started walking next to Davis, and told her that he had recently been released from prison.
3) As they were walking, Galloway suddenly kicked Davis down an embankment. Davis rolled down the hill and Galloway ran down after her. Galloway took his penis out of his pants and ordered Davis to "Suck my dick." Davis started calling for help, but Galloway told her to shut up and take her pants off. During the assault, Galloway hit Davis several times in the head with a bottle and kicked her in her side.
4) Corporal Phyllis Johnson of the Wilmington Police Department was on routine patrol when she heard Davis's cry for help. The lights from the police car scared Galloway off and the police officers who responded were unable to locate him at the scene of the crime. Over the next few days, Detective Scott Chaffin compiled a list of men who had recently been released from prison and showed Davis three six-picture photo arrays. Davis did not identify her assailant from those pictures, but she told Chaffin that people in her neighborhood told her that "Joe-Joe" and "Marley" were known for doing similar things to women in the area. Chaffin found three subjects with the nickname "Joe-Joe" in the appropriate age group and he showed the three pictures to Davis, who immediately identified Galloway as the perpetrator.
5) In searching Galloway's residence, the police found clothing and shoes matching Davis's description of her attacker's attire. At trial, Davis identified Galloway as her attacker and a pair of boots seized from his residence as the boots he was wearing at the time of the assault. Galloway did not testify at trial, but three defense witnesses testified that Galloway was asleep in his cousin's house at the time of the attack.
6) Galloway argues that the Superior Court abused its discretion in denying his motion to suppress the photographic identification. He contends that the three photographs were unduly suggestive. The trial court acknowledged that the presentation of only three photographs was suggestive, but determined that it was not unduly suggestive under all the circumstances. Those circumstances included the fact that the victim had been shown more than 30 photographs, in total; she had seen Galloway in her neighborhood numerous times before the assault; and she did not hesitate in identifying Galloway when she saw his photograph. We agree with the trial court's analysis.
See: Younger v. State, 496 A.2d 546, 550 (Del. 1985) (Identification procedure does not require exclusion of evidence unless it is so unduly suggestive that it creates a substantial likelihood of misidentification.)
7) Galloway also contends that the trial court erred in denying his motion for a new trial based on newly discovered evidence. The newly discovered evidence was the testimony of Bernadette Selby, who claimed that Davis described her assailant differently to Selby than she did to the police, and identified him as "Marley." After an evidentiary hearing, the trial court denied the motion, describing Selby's testimony as "unreliable" and "inconsistent," and finding that her description of the victim was "completely off the mark." In addition, the trial court noted that Selby uses drugs, has a prior conviction, and was being paid small sums of money every time she spoke with Galloway's investigator or attorney. We agree with the trial court's conclusion that Selby's testimony did not provide an adequate basis to grant a new trial. Selby would have been a very weak defense witness who was not likely to change the jury's decision, and it appears that her evidence could have been discovered before trial with due diligence.
Lloyd v. State, 534 A.2d 1262, 1267 (Del. 1987).
NOW, THEREFORE, IT IS ORDERED that the judgments of the Superior Court be, and the same hereby are, AFFIRMED.