Opinion
Criminal I.D. # 9902016686.
Submitted: February 25, 2000.
Decided: April 7, 2000.
Decision Upon Defendant's Motion for New Trial-Denied
Natalie S. Woloshin, Esquire, Deputy Attorney General, Department of Justice, 820 N. French St., Wilmington, DE 19801, C600
Kester I. H. Crosse, Esquire, Assistant Public Defender, Office of the Public Defender, 820 N. French St., Wilmington, DE 19801, C500
Dear Counsel:
The defendant has filed a motion seeking a trial pursuant to Rule 33 of the Superior Court Rules of Criminal Procedure. The defendant was charged with eight crimes arising from events which occurred on February 24, 1999:
I. Possession of a Deadly Weapon during the Commission of a Felony
II. Assault Third Degree
III. Terroristic Threatening
IV. Criminal Mischief
V. Endangering the Welfare of a Child [Jamar Lott] State v. David Odom
VI. Endangering the Welfare of a Child [Kairron Griffin]
VII. Aggravated Menacing
VIII. Endangering the Welfare of a Child [Dav-Var Odom]
On February 10, 2000 the Odom was convicted of Counts I, II, and VI.
Odom asserts two grounds for motion for a new trial: that it is required in the interest of justice, and that there is newly discovered evidence.
The Evidence:
The State's case was built around the 911 call from the complaining witness, Mia Lott ("Lott") and her son Lamar Lott ("lamar") as well as the statements made to the investigating officer, Detective Trala, who arrived at the scene shortly after the 911 call was received.
The controversy arose in the apartment occupied by Lott, lamar, Odom and an infant, Dav-Var Odom. The transcript of the 911 tape indicates David Odom as the individual residing at that address, presumably on the basis of the telephone listing. Also present was an unrelated child, Kairron Griffin. Lott and lamar, who had cohabited with the defendant for 7 years prior to this incident, gave statements to the investigating officer which were substantially different from the story given at the time of trial. A brief summary of the evidence will explain the challenge presented to the jury.
The transcript of the 911 tape, a key piece of evidence regarding the emotional state of Lott at the time of her call, provides little coherent information. It says, corresponding to a running time-count: "female crying, fem hung up; just rec'd another call from female saying he had a knife; male has a knife and took the baby outside; female hysterical; fm talking to someone can't understand her." A review of the tape itself indicates that the police were in communication with Lott, on and off, for about six minutes. Lott was hysterical in the beginning, but after the police had arrived she was calmer and able to speak coherently in response to questions on the open line. She said she had been kicked in the back and the side but did not need an ambulance. Jamar, too, spoke to 911. When questioned he responded that the man with the knife was his Mom's boyfriend, that the police had the boyfriend, and that the boyfriend was not fighting. He said that the baby was back with his mother, unhurt.
The Chief Investigating Officer and first person to arrive in response to the 911 call was Detective Joseph Trala. When Trala arrived at the scene, he saw Odom walking along the street and took him into custody. Odom was not carrying the baby nor did he have a knife. Trala spoke with Lott. She was very upset, "hysterical." Lott said she had received a telephone call from a female who had asked for Odom. She had become upset, an argument ensued, which became physical. Odom grabbed a knife, waived it in her face threatening her. He then cut the couch, pushed Lott down, kicked her in the face. He then grabbed the baby and started out of the house. Although Lott had said on the 911 tape that Odom had their child and her car, she explained to Trala that Odom had returned to the house to get the keys to her car, and had returned the knife and left the baby.
The Detective also spoke to Jamar Lott who was fifteen years old at the time of the incident. Jamar told him that he was watching television when he heard his mother and Odom get into argument — he did not know what about. Next, he saw Odom enter the living room with a knife and cut the couch. He said he tried to stop Odom from cutting the couch. Odom then turned to Lott. lamar thought he heard Odom say "I'll kill you." Odom then pushed his mother down and kicked her in the head. He tried to stop Odom from kicking his mother, and he encouraged her to call 911.
At trial the witnesses offered different testimony. Lott said that what she told the police was a lie. She said she had initiated a scuffle with the defendant. She claimed to have been using cocaine and explained that she has a lengthy history of institutional care due to her bipolar condition. She said she initiated the fight: she jumped on Odom's back and grabbed him around the neck. He was cooking, so he had a knife in his hand. They fell together onto the couch, cutting the couch. She wanted him to leave but he said he would not leave, so she called the police. She explained that on the 911 tape she said the defendant took their child because she was very angry and knew that the police would respond to a statement like that. She denied being kicked in the head, as she had reported.
The testimony of Jamar was essentially a denial of everything attributed to him by Detective Trala. He said he did not remember talking to the police officer in person, nor did he remember talking on the 911 call. He did not remember saying that Odom had a knife or kicked his mother. He did not remember that his mother had a swollen chin. He said he was upstairs when everything occurred. He denied that Odom had taken the baby outside, testifying that the baby was upstairs. He did not see any fighting or kicking. He did not know how the sofa was cut.
Odom, testifying on his own behalf, said that he was in the kitchen cutting broccoli with a kitchen knife, was hit in the head, walked toward the dining room, and was jumped on from the rear by Lott. He says they fell, the knife went into the couch, and Lott demanded that he leave. He said he was not leaving. She persisted in arguing and since he has had programs and knows how to deal with her when she gets like this, he walked out of the house, took a deep breath, and kept walking. He said the children were upstairs when the argument occurred. The next thing he knew, a police car arrived, and Lott pointed at him. He was arrested. Odom claimed that he did not kick. He explained that she was not taking her medication and, as a result, she had these "outbursts." The outbursts had happened before. He claimed that the telephone call from the female which had precipitated the argument was related to an engagement ring — Lott wanted to get married.
Defendant's argument:
The defendant argues that the inconsistency in the evidence is sufficient to conclude that a new trial is necessary in the interests of justice. The defendant further argues:
The 911 tape was given to defense counsel shortly before trial. It was played by the State in Court. Defendant argues that newly discovered evidence may constitute a basis to set aside the verdict since the tape when reviewed by a licensed psychiatrist psychologist (sic) may likely provide evidence indicating and confirming the bipolar diagnosis and the fact that a person with the diagnosis would have acted consistent with the complaining witness' behavior. This evidence would belie the likelihood that the witnesses' emotional state on the tape would evidence veracity. Indeed, it would indicate the opposite. A licensed psychiatrist has been contacted who could review the tape if it is made available pending this motion
Defendant's motion for new trial, p. 2-3.
A claim of newly discovered evidence must be reviewed against a well-established standard, renewed in State v. Hamilton, Del. Super., 406 A.2d 879, 880 (1974):
The leading case in Delaware considering the granting of a new trial on the grounds of newly discovered evidence is State of Delaware v. Lynch, 2 W.W.Harr. 600, 32 Del. 600, 128 A. 565 (Del.Term.R. 1925). That case holds that: "In order to warrant the granting of a new trial on the ground of newly discovered evidence, it must appear (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial and could not have been discovered before by the exercise of due diligence; (3) that it is not merely cumulative or impeaching.Analysis
The jury was given the clear task of having to decide which version of the incident to accept. The State's position was supported by the 911 tape, the statements taken by Detective Trala immediately after the incident, and the physical evidence of a damaged couch. The defendant's position was supported by the testimony of Lott and Jamar at trial as well as his own testimony. The 911 tape is very compelling. There is ample evidence to support the jury's verdict, a verdict rendered against the opposing testimony of the victim and her son. Such a change of heart in the context of a domestic case is well known and while understandable, does not excuse the underlying crime.
As to the argument of new evidence, it is clear that the defendant has not made out a case for such relief. The defendant speculates that if an expert were to be retained, that expert may be able to challenge the statements made on the 911 tape and to the investigating officer. The defendant fails to meet any of the three criteria for considering a new trial based on newly discovered evidence.
The motion for a new trial is DENTED.
IT IS SO ORDERED.