Opinion
ID No. 9911005395
Submitted: April 17, 2000
Decided: April 28, 2000
On Defendant's Motion for a New. Trial. Denied.
Marie O'Connor Graham, Department of Justice, for the State of Delaware.
Paul S. Swierzbinski, Office of the Public Defender, for the Defendant.
ORDER
Before the Court is Defendant's Motion for New Trial pursuant to Superior Court Criminal Rule 33. The Defendant was convicted on March 30, 2000 by a jury of Assault in the Second Degree, Unlawful Imprisonment Second Degree, and Possession of a Deadly Weapon During the Commission of a Felony. The defense is now asserting that the testimony of a State's witness, Lawrence Demby, involved evidence of prior bad acts by the Defendant and the Court should have undertaken a Getz analysis, or in the alternative, the Court should have given a limiting instruction as contemplated by Getz. The Defendant submits that he was surprised by this testimony as it did not conform to the proffer that the State had made regarding the testimony the day before, as well as the day of, his testimony to the Court. As a result, the Defendant contends that a Delaware Rules of Evidence 404(b) analysis should have been undertaken by the Court, and since one was not, a new trial should be granted.
Rule 33. New trial. The Court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice.
The State disputes the Defendant's characterization of the evidence. In its proffer to the Court, the State admitted that it was not sure what Mr. Demby would testify to, as his story had changed since the time of the events. The State also contends that the Defendant had the same opportunity to talk to Mr. Demby prior to trial as the State, and that the Defendant had the opportunity to fully crossexamine Mr. Demby at trial to counteract any alleged prejudice suffered by the Defendant. From the State's perspective, the Defendant had hoped to use self-defense or accident as a defense through the testimony of Mr. Demby. However, when Mr. Demby testified that he was not present when the dispute arose, this defense strategy was no longer viable. The State believes that this change in defense strategy was a tactical matter, was not prejudicial to the Defendant and does not amount to the level of granting a new trial.
As the parties are aware, DRE 404 governs the admissibility of character evidence in a criminal case to prove other crimes or bad acts. Before evidence is admissible under DRE 404(b) to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident, or for another purpose other than to prove character, the offering party must satisfy five factors. Under the Getz test the evidence of specific instances of misconduct or crimes sought to be introduced must:
D.R.E. 404. Character evidence not admissible to prove conduct; exceptions; other crimes. * * *
(b) Other crimes, wrongs or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
Getz v. State, Del. Supr., 538 A.2d 726 (1988).
(1) be material to an issue or ultimate fact in dispute in the case;
(2) be introduced for a purpose sanctioned by 404(b), or any other purpose not inconsistent with the basic prohibition against evidence of bad character or criminal disposition;
(3) be proved by plain, clear and conclusive evidence;
(4) not be too remote from charged offense; and
(5) the court must balance probative value versus prejudice.
In the case at bar, the Court required, upon the Defendant's request, the State to make a record of what Mr. Demby would testify to. The prosecutor made an adequate proffer of Mr. Demby's testimony to the Court; however, after the trial had ended for the day, Mr. Demby contacted the State to change his account of the events. The State appraised the Court, as well as defense counsel, of this change of events as soon as practical, the very next morning before trial started. At that time, nor any other time during the trial, did defense counsel make a motion to the Court to undertake a Getz analysis of Mr. Demby's testimony. Ultimately, Mr. Demby testified that he was not present during the altercation that led to the charges against the Defendant.
I do not see how this testimony by Mr. Demby should have been subject to a Getz analysis at trial. Through Mr. Demby's testimony, it was elicited that the Defendant may have attempted to procure him to commit perjury. However, Mr. Demby's account of the events had changed since the beginning of the proceedings, thus causing a conflict in his testimony. The credibility to be given any witness is solely within the province of the jury. The jury was given the standard criminal jury instruction regarding how to deal with conflicting testimony. It was for the jury to determine which of Mr. Demby's accounts of the events was true and believable, if any. Therefore, this Court will not grant a new trial to the Defendant on the grounds that a Getz analysis was not undertaken.
Defense counsel was granted great latitude at the trial of this matter to crossexamine Mr. Demby. The Court went as far as granting a recess in order for Mr. Swierzbinski to confirm certain pending charges against Mr. Demby. The Defendant had every opportunity to cast doubt on Mr. Demby's memory of the events and to contend that Mr. Demby was in fact present during the altercation. Thus, the Defendant cannot now claim that he was prejudiced by Mr. Demby's testimony. The efficient cross-examination by defense counsel outweighed any alleged prejudice suffered by the Defendant as a result of Mr. Demby's testimony. Therefore, the Defendant's Motion for a New Trial is denied . IT IS SO ORDERED.