Opinion
Def. ID# 9911018706, SBI# 00320813. Criminal Action No. 99-12-0398, 99-12-0399.
Date Submitted: December 15, 2000.
Date Decided: December 19, 2000.
Criminal Action No. 99-12-0398 Murder in the First Degree 99-12-0399 Possession of a Firearm During the Commission of a Felony.
Decision on Motion for New Trial — Denied.
James W. Adkins, Esquire and Stephanie Tsantes, Esquire, Department of Justice, Georgetown, DE
Karl Haller, Esquire, Public Defender's Office, Georgetown, DE
On May 16, 2000, defendant Ralph Reed ("the defendant" or "Reed") was convicted of murder in the first degree and a weapons offense as a result of the killing of Gregory Howard. The homicide occurred in the late evening of November 23, 1999. The defendant filed a timely motion for a new trial. He submitted a memorandum of law in support of that motion. Based upon the positions the defense took post-trial, as opposed to at trial, the Court ordered transcripts. The transcripts were filed with the Court in late November. The transcripts, especially of the sidebars, are very helpful in the analysis of the defendant's motion. This is the Court's decision denying the motion for a new trial.
Legal Standard
On a motion for new trial, the Court may grant a new trial if reguired, in the interest of justice. Superior Court Criminal Rule 33.
Questions Presented
As stated by the defense, the issues presented are as follows:
1. Under Title 11 of the Delaware Code, § 3507, did the trial court err when it prevented use of prior out-of-court statements of witnesses present for cross-examination for use as affirmative evidence with substantive independent testimonial value;
2. Under Delaware Rules of Evidence, did the trial court err when it failed to provide a limiting instruction for testimony of the State's witness;
3. Under Delaware Rules of Evidence, did the trial court err when it admitted evidence established by testimony of witnesses of uncharged misconduct of the defendant.
Simply put, this was a drug deal that went bad. Gregory Howard ("Howard"), the victim, was a crack cocaine addict. Reed was a drug dealer. He sold drugs in the Little Creek area of Laurel, Delaware. From the testimony, drugs are sold openly near the entrance of the Little Creek Apartments in Laurel.
In the late evening of November 23, 1999, Howard drove his pickup truck to the entrance of Little Creek Apartments. He stopped his vehicle near the entrance where the defendant was standing nearby. They had had previous transactions. The defendant approached the truck. Suddenly, the pickup truck accelerated, squealing its tires and someone yelled "Flammed".
Flammed is a street word indicating a rip-off and presumably derived from one having been flimflammed.
Reed pulled a pistol and shot at the fleeing vehicle approximately four times; a close pattern of bullets entered through the back of the vehicle, in the area of Howard's head. One bullet struck him in the back of the head, killing him. In the vehicle, the police found a piece of crack cocaine as well as Howard's empty wallet, creating an inference supportive of the flam.
When the police interviewed Reed, he denied being involved in the shooting and stated that he was not at the entrance of Little Creek Apartments when the shooting occurred. He said he was at his grandmother's and had spent the night there. Further, he stated he did not have a gun and had never owned a gun.
Testimony of Sharnelle "Dutch" West
Sharnelle L. West was a friend or the defendant. She was with the defendant and two other people at or about the time or the shooting. She testified she saw the defendant go up to cars and does remember him being at a pickup truck. While she testified she heard a vehicle's tires squeal and shooting, she said she never looked to see what took place. When asked why she did not look, she testified "I didn't want to, I guess".
After the shooting, she drove to Seaford in a vehicle operated by Kenyon Horsey. The State of Delaware ("the State") asked her if she said words to the effect, "I can't believe he did it, I can't believe Ralph shot that man." She denied she said that to Kenyon Horsey. No 11 Del. C., § 3507 foundation was laid with this witness concerning her conversation with Kenyon Horsey during her trip to Seaford.
In Del. C., § 3507, it is provided:
(a) In 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.
(b) The rule in subsection (a) of this section shall apply regardless or whether the witness' in-court testimony is consistent with the prior statement or not. The rule shall likewise apply with or without a showing of surprise by the introducing party.
(c) This section shall not be construed to affect the rules concerning the admission of statements of defendants or of those who are codefendants in the same trial. This section shall also not apply to the statements of those whom to cross-examine would be to subject to possible self-incrimination.
Kenyon Horsey testified that during the trip to Seaford, Ms. West kept saying "I can't believe he did it, I can't believe he did it" and during his examination, he acknowledged he had reported that she told him "Ralph shot the man". Again, there was no 11 Del. C., § 3507 foundation. Nor did the State seek to introduce it by way of a hearsay exception. There was no defense objection. At a sidebar, the Court ruled a limiting instruction would be given concerning Ms. West and Mr. Horsey's conversations while traveling to Seaford limiting the jury's use of it to credibility. The defense did not object.
In its post-trial memoradum, the defense argues that Ms. West's statements to Mr. Horsey or words to the effect "I can't believe he did it" should not have been limited to impeachment, but should have been allowed substantively under 11 Del. C. § 3507. Presumably, the defense desires to have the jury consider Ms. West's words as her opinion and therefore, substantive evidence that Reed did not kill Howard.
While the defendant spends a great deal of time reviewing the case law of 11 Del. C., § 3507, he ignores the following:
1. The State was presenting the evidence in its case and offered this testimony. The State was presumably offering it as a credibility attack on her earlier testimony that she was present but did not see it. The State made it clear it was not seeking to offer it under § 3507. The defense did not object.
2. Had the defense desired to get this evidence in substantively, the defense would have been the proponent and would have had the responsibility to lay the § 3507 foundation. Defense did not ask any § 3507 foundation questions.
I expect the defense did not do this because the statement was Ms. West's opinion which was given in the context of shock and disbelief that Ralph shot that man, as opposed to a statement that Ralph was not the person who shot him.
Ms. West was called as a State witness, but she was a friend of the defendant. The Court required that she be kept available throughout the trial or either party to recall her. This was done as a precaution as to her and other key witnesses. The Court wanted the witness available in the event problems such as this arose. In fact, the State and defense recalled many of the witnesses.
In conclusion, the Court did not err by preventing the admission of Ms. West's statements under § 3507 for the aforementioned reasons. The Court did not prevent this because the Court was not asked to allow it under § 3507.
Testimony of Yvonne DeShields
Yvonne DeShields was probably the most important witness in the entire case. She is a friend of the defendant's family and was his babysitter. She regularly visited his grandmother. She was the critical eyewitness who placed the silver gun in the defendant's hand and identified him as firing at the victim's vehicle.
In the defendant's case, he presented testimony that Ms. DeShields visited with the defendant's grandmother sometime after the shooting. Several witnesses testified that on one visit, Ms. DeShieds said she wished she had been there ten minutes earlier or that she had seen Ralph ten minutes earlier so that she could have prevented the shooting. Ms. DeShields testified as to this statement when called by the defense. She said that she did not say "if she had gotten to the scene" because she was already there. Ms. DeShields testified that she said "if I had seen him ten minutes earlier". On cross-examination by the State, she testified that what she meant by her statement was that she would liked to have seen Ralph to have had an opportunity to talk to him before this happened and prevented it.
The defense argues that this conversation was limited to impeachment and this limitation denied the defense the opportunity to offer this testimony as affirmative evidence with substantive testimonial value under § 3507. Presumably, the defense argument is Ms. DeShields was not an eyewitness because she admitted she was not there.
Here, the defense is simply mistaken. The defense, as the proponent of this testimony, did not lay a proper foundation under § 3507. But the State did not object nor did it request a limiting instruction. In fact, both the State and the defense signed off on the limiting instructions which were given after both sides had the opportunity to comment or object on several occasions. Ms. DeShields was included in the limiting instructions.
The defendant seems to be arguing that because the defense did not lay a proper foundation, Ms. DeShields' testimony on this issue was limited to impeachment. The defense seems to be criticizing the Court for the defense's failure to comply with § 3507.
Regardless of this tangled and confusing argument, the jury never was instructed that this testimony was limited to credibility and thus, it is a moot position.
Since Ms. DeShields' testimony on this issue was not limited to impeachment, there was no error by the Court in not including an instruction which limited this testimony to impeachment.
Finally, if the defense feels that it would have been appropriate to limit it to impeachment, then the defendant had the opportunity under Delaware Rules of Evidence ("DRE"), Rule 105 to request a limiting instruction. That was not done. The defendant's request for a new trial based on this position is denied.
I am finding it difficult to actually nail down the defense's position.
Yvonne DeShields' Testimony Under § 3507 with State being Proponent
As a side issue, the defense asserts that the Court did not comply with case law concerning the implementation of 11 Del. C., § 3507. Specifically, following trial the defense complains that the Court did not comply with Smith v. State, Del. Supr., 669 A.2d 1 (1995) ("Smith").Smith addressed the problem of when cross-examination of the declarant is to be offered by the proponent under 11 Del. C., § 3507. In Smith, the declarant-victim was examined on direct, on cross and again on re-direct. She was then excused. Thereafter, her taped statement was admitted under § 3507. The objection the defense made did not address the lack of opportunity to cross-examine the witness and therefore, the Supreme Court's review of the § 3507 issue was under a plain error standard.
In Smith, the issue was what does "subject to cross-examination" as contained in 11 Del. C., § 3507(a) mean and when should that cross-examination occur, i.e. the timing of the cross-examination as to the prior statement. Smith held that the State should offer a prior statement under § 3507 at the time the State concludes its direct examination of the declarant. Otherwise, the defendant may be placed at strategic disadvantages of having to cross-examine the declarant about the prior statement before the prior statement is being offered or of having to take the risk of ignoring the prior statement and hoping the State does not offer it at all. The heart of the holding in Smith is that the proponent's offering should not be timed so as to peace a strategic burden on the opposite party.
The Supreme Court held it was not plain error on the facts of the case as there had been no objection. One must keep in mind that in Smith, the defendant never had the opportunity to cross-examine as to the tape because the tape was introduced after the witness had been excused.
The holding of Smith, if taken literally, may cause real practical problems not only for the trial court, but also for the litigants. Most of the time, the declarant's § 3507 statement is introduced through the testimony of another witness or other witness. Frequently, the examination and cross-examination of these other witnesses is as important and critical as the cross-examination of the declarant. It is reasonable to conclude that in certain cases, a strict application ofSmith places the non-offering party, which is usually the defense, at a strategic disadvantage. By way of example, it is not uncommon in sexual molestation cases for the State to have several § 3507 witnesses such as teachers, social workers, police officers and family members. The defense, under Smith, would not have the opportunity to cross-examine the child until all the § 3507 witnesses have been exhausted. In other words, that child's cross-examination is held in abeyance and frequently defense counsel want to have the opportunity to cross-examine and potentially discredit the witness-declarant before there is a parade of § 3507 witnesses. Also, I note that the use of § 3507 testimony is seldom a surprise to the non-offering party because if it is not known in discovery, the § 3507 foundation questions put the non-offering party on notice. In other words, lawyers do not usually ask "was the statement voluntary?" unless they are laying a foundation for § 3507 testimony.
What I see to be the importance of Smith is that the introduction of the § 3507 testimony should not be timed so as to put the defense at a strategic disadvantage and the defense should have the opportunity for quality cross-examination of declarant.
With all of this said, I come to the facts of the present case. Yvonne DeShields, as a State's wttness, was cross-examined; then, there was further testimony on redirect and recross-examination. The State then made the Court and defense aware that Ms. DeShields needed to remain available because it would be calling a § 3507 witness. At the sidebar, the Court raised the Smith case. The defense was satisfied with the declarant being put back on the stand after the § 3507 witness had testified. This is no different than what happens in most other trials and has become the preferred practice of most defense attorneys.
Following the § 3507 witness the state was going to put the declarant back on the stand, but the defense advised, at sidebar, that it did not want further cross-examination. The Court noted "so we nave complied with § 3507, alright". The defense made no objection nor comment. This witness remained available throughout the trial and subsequently was called by the defense in its own case where she was examined on direct and two redirect examinations.
I find no error to the procedures used for the introduction of the § 3507 evidence as it complies with the spirit or Smith. There has been no showing that the defense was placed at any strategic disadvantage. Finally, the defense agreed to the § 3507 procedures which were used and made no objections. There is no ground for a new trial based upon this complaint.
The DRE, Rule 404(b) Evidence
In DRE, Rule 404(b), it is provided:
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.
Prior to trial, the State requested a ruling addressing questions of prior conduct by the defendant. The State sought to introouce testimony that the defendant was a drug dealer and evidence that the defendant had an operable, silver gun or pistol prior to the homicide.
Following argument on this, the Court allowed this evidence but prevented the State from going into the circumstances of how the gun was previously used as the Court had concerns as to prejudice and propensity problems if the testimony was not limited.
In the present motion, the defendant renews his objections made at trial. I stand by my previous rulings and deny defendant's application for a new trial because of DRE, Rule 404(b) rulings.
The defense argues that there should be no DRE, Rule 404(b) evidence in this case. This would have limited the State's case to (1) Reed and Howard having a conversation in the street at Little Creek Apartments; (2) Howard driving off quickly; and (3) Reed aiming and firing a gun, resulting in Howard's death agree with the State that this paints an unfair portrait or what took place and it is unfair to the jury in its efforts of trying to figure out "what happened" and "what was the defendant's state of mind"
The Gun
In his post-shooting statement to the police, the defendant denied possessing or ever owning a gun. A State's witness placed the defendant at the scene firing a silver gun at Howard's vehicle. The silver gun never was found, but the State located the cartridges and established the murder weapon to be a .380 caliber. Thus, it was relevant and important for the State to attempt to establish that the defendant had access to an operable silver gun in a timeframe relatively close to the killing. The testimony concerning the defendant's prior possession or the silver gun included that it was a .380 caliber.
I remain satisfied that the testimony concerning the defendant's access or possession of a silver gun which was operable passes muster under DRE, Rule 404(b), Getz v. State, Del. Supr., 538 A.2d 726 (1988) andDeShieds v. State, DeL.Supr., 706 A.2d 502 (1998). It possessed independent logical relevance and was material to the question of identification. It tied the defendant to a .380 caliber silver gun. It was not remote in time. I was satisfied, based upon the proffer and subsequent sworn testimony, that the evidence was credible. The need for the testimony was great as alternative evidence was limited. The identification of the defendant as being the shooter was made by a witness whose credibility was attacked due to potential impairment by alcohol and/or drugs. That she could identify the pistol as being silver and the State could establish the defendant's prior possession of a silver gun increased the relevance under DRE, Rule 404(b). The Court limited the State from presenting the details concerning the prior possession of the gun.
Finally, it is noted that gun ownership is not bad act and the Court's limitations on how the gun was used in the prior instance minimized any potential prejudice.
Under the required DRE, Rule 403, balancing test, I am satisfied the danger of unfair prejudice did not outweigh the probative value, much less substantially outweigh it.
Prior Drug Conduct
I rule likewise, as to the prior drug activity by the defendant. Motive is not an element of the criminal offense of murder in the first degree, but experience shows that a motive for a shooting, the "why it happened?" is important in every murder case. The jury is asked to try to figure out what happened and to do so without a motive is frequently difficult. Motive also may provide an inference as to a defendant's state of mind in that the jury may consider the circumstances surrounding the acts the defendant is alleged to have committed in making a decision as to whether or not the defendant acted with the required state of mind, which in this case is "intentionally". This was a drug deal that went bad. This was a case where drug dealer had just been "flammed". This was a case where the State argued the defendant, as a drug dealer, was not going to be flammed or ripped off. It went directly to the defendant's state of mind and motive as to why he would pull a pistol and shoot. I am satisfied that it had independent logical relevance and was material to the State's presentation of it's case. I am satisfied there was clear and conclusive evidence concerning the defendant's drug dealing, some of which was even offered by the defense. The acts were limited to the time period relatively close to the homicide.
Finally, I believe that there would have been a gap which would have been confusing had the jury not been aware of what was taking place at the entrance of Little Creek Apartments. The victim was a drug addict and the defendant was a drug dealer. Without having this information, the jury would have been handicapped in trying to figure out what was happening. This evidence was necessary and there was not other less prejudicial evidence available. In comparing this with other DRE, Rule 404(b) cases, I note that this is not a situation where the crimes were similar, such as a prior assault in an assault case, and where prejudice may be great. Drug dealing was the background for both the State's case and the defense. Thus, the propensity problems were not great.
I remain satisfied that under DRE, Rule 403, the danger of unfair prejudice did not outweigh the probative value and surely did not substantially outweigh it.
In summary, the Court finds that the motion for a new trial should be denied and the defendant shall be sentenced forthwith.
IT IS SO ORDERED.