Opinion
ID. No. 0503013152.
Submitted: July 5, 2007.
Decided: July 18, 2007.
On Defendant's Motion for New Trial.
DENIED.
Andrew J. Vella, Esquire Deputy Attorney General Department of Justice Wilmington, Delaware.
Christopher D. Tease, Esquire Wilmington, Delaware, Attorney for Defendant.
Dear Counsel:
Before the Court is Defendant's Motion for a New Trial, which alleges that certain evidence introduced at trial was improper and unfairly prejudicial. Because the Court has determined that the evidence was not improperly introduced, and was not unfairly prejudicial, Defendant's Motion for a New Trial is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts, except as otherwise noted, are quoted verbatim from Defendant's Opening Brief.
On March 17, 2005, members of the Wilmington Police, Drug, Organized Crime and Vice Unit were conducting an investigation in which the defendant was the target. Police set up a controlled purchase of heroin which was to occur in the parking lot of the Ho-Ho Market in a white car which he drove to the location. He was accompanied by his co-defendant, Alfredo Ramos who was seated in the passenger seat of Defendant's car. Shortly after arriving in the parking lot, the Defendant stepped out of his car and entered the passenger seat of a car parked next to his vehicle. The driver of that second vehicle was a confidential informant who purchased heroin from the defendant at that time. Police maintained surveillance of the area and after the transaction was completed, the police attempted to stop the Defendant's car and eluded police by driving on the sidewalk and eventually driving northbound on Market Street in the southbound lanes. While driving head-on against traffic, the Defendant's car rammed into a car driven by Detective Chuck Emory who was responding to the scene and traveling southbound on Market Street. As the defendant approached Emory's vehicle and after the defendant's car struck Emory's car, Alfredo Ramos was throwing drug evidence out of the passenger window of the defendant's car. The evidence included a stamp kit, empty plastic baggies and heroin. The defendant continued to flee after striking Emory's vehicle and led police on a high-speed chase; finally driving into the Brown, Burton, and Winchester Park located at 23rd and Pine Street and abandoning the car. The defendant fled the scene and was apprehended as he attempted to enter the residence at 800 E. 23rd Street. A later search of the defendant's residence uncovered a digital scale, a stamp kit, numerous empty plastic baggies, and paperwork for Jerome Sullins.
Prior to trial, the defendant moved to preclude any reference by the State to the drug transaction that took place with the confidential informant. The State made the following proposal:
State Prosecutor: My proposal to Mr. Tease — and I understand he's opposed to this — would be for the police officer who was conducting the investigation to say that he had set up a controlled purchase of heroin at a particular location using a confidential informant and leave it at that. . .
The Court: Would the confidential informant be identified as the driver of that car?
State Prosecutor: Yes — I don't even know that we have to do that. That's who it was.
The Court: Mr. Tease, your position?
Defense Counsel:. . .I think there was no crime that arose as charged from that incident right there. Everything else occurred as a result of drugs thrown out of a car or a search of a residence. . .I think the testimony should start from the point that police are approaching his vehicle and then they flee. I understand that's a little uncomfortable because we have to be able to do that in a way that the jury understands what's going on.
The Court: I think the State has a right to have the jury understand generally why the police were there. They were not there to go shopping at the Ho-Ho Market. I'll rule on this certainly before opening statements. I'm inclined to try to sanitize it as much as possible. With that guidance, do you think if you spoke further, you could come to an agreement between now and opening statements?
State Prosecutor: I think we could. . .
At the conclusion of the pre-trial conference, the Trial Judge entered the courtroom and inquired if the parties had resolved the issue. The response from the State was as follows:
State Prosecutor: Your Honor, I believe we agreed that the State will limit its discussion and presentation of evidence to what we had discussed earlier, which is the police were conducting a drug investigation in that area with surveillance on that day. (emphasis added).
The Court: Without reference to the defendant.
State Prosecutor: No reference to the defendant, the target of the investigation or any reference to the use of the confidential informant.
Defense Counsel: The only exception, Your Honor, would be reference to a drug investigation. We didn't specifically talk about that one issue, so I apologize.
The Court: Mr. Vella.
State Prosecutor: Your Honor, I think it's sanitized enough so that we're not making reference to who the target is or —
The Court: I think I'll order this be referred to as an investigation rather than a drug investigation. . .
Defense Counsel: Thank you.
State Prosecutor: I'll instruct my witness accordingly.
With these representations, defense counsel made no further request, understanding that the State's evidence would be limited to the proffer just made. After a recess, the State made a specific proffer of what it wished to offer as evidence:
State Prosecutor: The first detective and probably the only person who would testify about what happened in the market or in the parking lot of the market would be Detective Chris Cunningham. He would testify that he was in a position watching the Ho-Ho Market, that the defendant pulled up in a white Cadillac, that vehicle was occupied by another person, the defendant got out of the Cadillac, got into a car that was next to his on the passenger's side, stayed in that car for less than a minute and then returned to his car, and at that point a decision was made for police units to move in and try to apprehend. (emphasis added).
The Court: And Detective Cunningham would not testify that he was surveilling the defendant in particular?
State Prosecutor: No.
The Court: Just generally surveilling the —
State Prosecutor: Watching the parking lot.
The Court: Mr. Tease, any further argument to make?
Defense Counsel: What I put on the record earlier, Your Honor, was — I mean, it's going to be easy for probably any individual to see that, but certainly a jury of 12 to see through that. The danger is that when that's described, they are going to know exactly what was going on and why there was this takedown and that there was a crime being committed.
The Court: Well, I'll overrule the defense position. You've made a record. I think that's a quote, sanitized, unquote and fair way for the State to explain to the jury in the most general, relatively nonprejudicial of ways why the police were there in the parking lot. There's no tie in to the specific defendant, Mr. Sullins, which would be the chief prejudice, but they were just there doing general surveillance. It's no different, in an analogous way, in that the police are often allowed to explain why they are in a house and found drugs is pursuant to a search warrant and that's all that's said. This is very similar to that, in my view. So I will permit the State — and just caution all your witnesses, please, not to get into this testimony, except Detective Cunningham.
The following evidence, or statement's by counsel, were then made at trial concerning the sale of heroin to the confidential informant.
During opening statements, the State Prosecutor indicated that after Sullins entered and exited the CI's vehicle, a decision was made to apprehend him. A defense motion for mistrial was denied and the prosecutor then told jurors that a decision was made to apprehend the vehicle based on what was observed.
Officer Cunningham testified that after Sullins was seen entering and exiting the vehicle, he had broadcast over the radio a description of the Cadillac and the person who exited the Cadillac and got into the Mercury. A decision was then made by Detective Rentz for assisting units to move in and stop the vehicle, the Cadillac. When asked how close he was to the Cadillac, the officer asked counsel, "[d]uring the transaction? I was inside the store." A defense motion for mistrial was denied.
Detective Rentz testified that he was working undercover on that day and that he and other members of his team were conducting an investigation in the Ho-Ho Market. He went on to describe his location during the surveillance along with that of his partner and other units working on the team. Among other testimony, he stated that he "asked Detective Cunningham to be the main surveillance, and he located himself inside the liquor store. We had other officers in unmarked Crown Victoria police cars set up on the outskirts out of view to come into the area in case a stop was — in case I requested a stop. And we had additional members of our unit parked in the area in undercover vehicles." "[Cunningham] was in [the liquor store] because it was in close proximity to get a view." Rentz went on to describe in detail the defendant's action in entering the CI's vehicle and his making the decision to stop the vehicle.
Detective Pfaff was asked by the Prosecutor, "[w]ere you involved in the investigation of Jerome Sullins?" His answer was that he was.
Following a Flowers hearing in this case, another judge of the Superior Court issued a sealed Order denying the defendant's motion. State v. Flowers, 316 A.2d 564, 568 (Del. Super Ct. 1973) (holding that when considering whether to disclose the identity of a confidential informant, the Court "has a duty to inquire further into the `remote possibility' that an informer's testimony might serve some defendant.").
Further facts include the exchange between the Court and defense counsel regarding Detective Cunningham's use of the word "transaction." Despite Officer Cunningham's use of that word, defense counsel did not then object. At a later side bar defense counsel argued for a mistrial because of the use of the word "transaction," but the Court ruled that "defense counsel [had] made the strategic, tactical decision not to pursue anything further after that `transaction' phraseology was uttered by Detective Cunningham in response to a defense question."
Appendix to Def. Mot. for New Trial at A21.
The jury did not return a verdict for about six hours after retiring to deliberate. Upon the conclusion of jury deliberations, a guilty verdict was returned on the charges of Trafficking in Heroin, Possession with Intent to Deliver Heroin, and Possession with Intent to Deliver Cocaine. The defendant was acquitted of Assault Second Degree, PDWDCF and Reckless Endangering Second Degree. After his conviction, Defendant filed this Motion for New Trial.
Def. Mot. for New Trial at 14.
State's Response to Def.'s Mot. for New Trial at 1.
Id.
II. THE PARTIES' CONTENTIONS
Defendant's Motion for New Trial alleges that Rule 403 of the Delaware Rules of Evidence was violated during the course of the trial because the use of the word "transaction" created unfair prejudice, and unfairly linked Defendant to the illegal distribution of drugs. Defendant argues that, prior to trial, the Court imposed a limitation on testimony and ordered that "[n]o reference be made to the defendant, the target of the investigation or any reference to the use of the confidential informant." Defendant further argues that the Court ordered "this to be referred to as an investigation rather than a drug investigation." Defendant contends that the presentation of evidence explaining the police presence around the Ho-Ho Market, the actions of Defendant at the Ho-Ho Market, and the timing of the decision for the arrest, unfairly demonstrated, although circumstantially, that Defendant had engaged in a drug transaction. Defendant argues that this evidence went beyond giving a basic background context of the arrest, and unfairly biased the jury against the defendant. Defendant argues that this supposed link to illegal drugs created substantial prejudice that outweighed any probative value the information might have.
Def. Mot. for New Trial at 5.
Id.
Id. at 1.
Id. at 2.
Id.
In addition, Defendant argues that even the mention that he was the target of a drug operation biased the jury against him. Defendant contends that the jury must have assumed that Defendant was involved in a drug transaction in the Ho-Ho Market parking lot, and unfairly connected Defendant to the drugs shortly thereafter thrown out of the car by his co-defendant. Defendant further argues that the jury must have assumed that Defendant was involved in the distribution of those drugs. Defendant argues that the drug evidence was only "consistent with simple possession," and that mention of the word "transaction" served to give the jury unwarranted information that he was a drug dealer. Defendant contends that the purpose of the limitation was to give the jury some context of the arrest, but that the actual presentation of the testimony resulted in convincing circumstantial evidence that the Defendant was connected to the sale of illegal drugs in the parking lot. Defendant cites the six-hour deliberation time as an indication that the prejudicial evidence existed and suggests that not allowing the introduction of such evidence would have meant a different result.
Id. at 12.
Id.
Id. at 14.
Id.
Id.
Id.
In response, the State argues that Rule 403 of the Delaware Rule of Evidence was not violated and that the introduction of the evidence was not unfairly prejudicial. The State agrees with the defendant that the purpose of the limitation was to allow "the State to introduce evidence that there was a police investigation in the area but [to limit] that evidence by prohibiting the State's witnesses from making any reference to the nature of the investigation (i.e. drug transaction) or the fact that the Defendant was the target of the investigation." The State asserts that the inadvertent mention of a "transaction" was an isolated event that should not be viewed as creating unfair prejudice.
Although Defendant's Reply Brief at 1 alleges that the State mischaracterized the issue as a D.R.E 404(b) issue, the State's response in fact analyzes the legal issue pursuant to D.R.E 403.
State's Response to Def.'s Mot. for New Trial 2.
Furthermore, the State argues that the use of the word "transaction" does not itself create a link to illegal drugs. The State argues that other permissible evidence demonstrates the link to drugs, and the apparent inadvertent use of the word "transaction" is simply not enough to show unfair prejudice and should not form the basis of granting Defendant a new trial.
Id. at 2-3.
Id.
III. DISCUSSION
Rule 33 of the Superior Court Criminal Rules provides for the granting of a new trial "if required in the interests of justice." In cases involving a claim that evidence was improperly introduced, "the fundamental test. . .is whether the evidence at issue was improper and unfairly prejudicial." Therefore, the Court will consider (1) whether the introduction of the evidence was improper, and, if so, (2) whether the introduction of the evidence was unfairly prejudicial.
State v. Savage, 2002 WL 187510 *3 (Del.Super.).
First, the Court will determine whether the evidence in question was, as a whole, improper. "Circumstances attending a particular transaction, when interwoven with each other and with the principal fact that they cannot well be separated without depriving the jury of proof that is essential in order to reach a just conclusion, are admissible as evidence." Furthermore, "[e]vidence otherwise inadmissible may, in some circumstances, be introduced for the purpose of furnishing necessary background material to make proof of the crime intelligible to the jury. . ."
22A C.J.S. Criminal Law § 714 (1989).
Id. at § 715.
In the instant case, the introduction of evidence relating to the presence of the police officers and their reasons for being at the Ho-Ho Market was necessary background information because police presence at the Ho-Ho Market was "interwoven" into the sequence of events that unfolded. Information about the background events leading to arrest and investigation of illegal drug dealings in the area were especially necessary in this case because these pieces of information explain why the police were at the Ho-Ho Market. Even though the mention of an investigation might create some circumstantial link between Defendant and illegal drug activity, this is not enough to exclude important facts and background information. Therefore, the introduction of the background events, and the reason for police presence was necessary for the jury to make a rational inference as to what actually occurred.
Second, the Court must consider whether the introduction of the evidence was unfairly prejudicial. Relevant evidence is often prejudicial, but the rule only protects against unfairly prejudicial evidence. Under the balancing test of Rule 403 of the Delaware Rules of Evidence, the Court examines whether the danger of unfair prejudice substantially outweighs the probative value of the information.
Id. at § 711 ("The prejudicial effect. . .relates to inciting a jury to an irrational decision based on matters other than the evidence presented in the case and does not protect against evidence that is prejudicial only in that it is detrimental to a party's case.").
United States v. Pitrone , 115 F.3d 1, 8 (1st Cir.1997) ("Virtually all evidence is prejudicial-if the truth be told, that is almost always why the proponent seeks to introduce it-but it is only unfair prejudice against which the law protects.").
Hicks v. State, 913 A.2d 1189, 1196 (Del. 2006).
In the instant case, the witness's reference to activity inside the confidential informant's vehicle is not unfairly prejudicial. As stated previously, the testimony of the officers was essential in determining why the officers were present at the Market. Even though Detective Cunningham referred to a "transaction," defense counsel did not then object. In a sidebar that occurred the next day, the Court stated that defense counsel "at sidebar made a strategic, tactical decision not to pursue anything further after that "transaction" phraseology was uttered. . ." Because defense counsel did not object immediately when the word "transaction" was used by Detective Cunningham, defense counsel's subsequent motion was "denied as additionally untimely as well."
Appendix to Def. Mot. for New Trial at A21.
Id.
Furthermore, the mention of a "transaction" was an isolated event, and there was already ample evidence presented to show that Defendant possessed drugs. Despite Defendant's contention that the use of the word "transaction" biased the jury against him, and supposedly triggered a six-hour jury deliberation period, there was already enough evidence for a reasonable jury to conclude Defendant was involved in a drug transaction. The simple mention of the word "transaction" did not unfairly prejudice the jury by giving them access to knowledge they could not otherwise infer. Given the weight of drug evidence against the Defendant, the word "transaction" alone did not serve to establish the link to illegal drug activity.
See Taylor v. State, 777 A.2d 759, 771 (Del. 2001) (stating the function of a jury is to make judgments based on common sense and to use logical steps to form a rational basis for an inference).
Therefore, the use of the word "transaction" did not unfairly prejudice the Defendant and does not serve as a basis for the granting of a motion for new trial.
IV CONCLUSION
For the reasons stated above, Defendant's motion for New Trial is DENIED.