Opinion
I.D. 0007020610
January 30, 2002
Stuart E. Sklut, Deputy Attorney General, Andrew J. Vella, Deputy Attorney General, Department of Justice Wilmington, DE.
Anthony A. Figliola, Esquire, Wilmington, DE.
Sheryl Rush-Milstead, Esquire, Heiman, Aber, Goldlust Baker, Wilmington, DE.
Supplement To Oral Rulings Regarding Admissibility of Statements Pursuant to 11 Del. C. § 3507
The Court has utilized the revised Form of Citations as reflected in the December 13, 2001 amendments to Delaware Supreme Court Rules 14(g) and 93.
Dear Counsel,
As you know, the Court has admitted as evidence the out-of-court videotaped statements of three witnesses taken in advance of trial. The State offered the statements pursuant to 11 Del. C. § 3507 ("Section 3507"). Prior to admitting the statements (hereinafter individually or collectively referred to as the "3507 statement(s)"), the Court required the State to produce each witness (hereinafter individually or collectively referred to as the "3507 witness(es)") at trial so that it could lay the requisite foundation for each 3507 statement. Specifically, the Court required the State to elicit testimony from each 3507 witness regarding: (1) the truthfulness (or untruthfulness) of the statement; (2) the events perceived; and (3) the voluntariness of the statement.
Section 3507 provides, in pertinent part:
(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 of 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.
Feleke v. State, 620 A.2d 222, 226-27 (Del. 1993).
After affording defense counsel an opportunity to cross-examine each witness outside of the presence of the jury, the Court admitted the 3507 statements upon concluding that the State had laid the requisite foundation for each statement. The Court's rulings are a matter of record. Nevertheless, the Court has deemed it appropriate to amplify and/or clarify its rulings with respect to the voluntariness component of the Section 3507 foundation as this was the showcase argument in opposition to the admission of each statement.
The Court followed the procedure for the admission of the Section 3507 statements prescribed by Smith v. State, 669 A.2d 1 (Del. 1995).
The Court is satisfied that its rulings with respect to the other two components of the requisite foundation for each 3507 statement are adequately stated on the record. Those components will not be addressed again here.
I. The Issue
The State sought to introduce the 3507 statements of three witnesses: Cornell Garvin, James Singletary and Shemuel Clay. Each of these witnesses recanted their 3507 statements from the witness stand. And each of these witnesses claimed that their 3507 statements were not voluntary. Specifically, each witness identified a threat or inducement made by individuals in a position of authority which had the effect of coercing them to give a statement against their will. The Court conducted an evidentiary hearing outside of the presence of the jury with respect to each 3507 witness to explore the voluntariness of their respective 3507 statements. The Court imposed upon the State the burden of proving the voluntariness of the statements by a preponderance of the evidence.To carry their burden to establish the voluntariness of each of the 3507 statements, the State presented: (1) the testimony of the respective 3507 witness, (2) the testimony of Detective John Ciritella, the police officer who conducted the tape-recorded interviews of each of the 3507 witnesses; and (3) the videotape of the respective 3507 statement. Only one of the witnesses testified that Detective Ciritella improperly coerced the 3507 statement. The other 3507 witnesses identified some other individual or individuals, not present in the courtroom, as having threatened or coerced them in some manner which compelled them to give the 3507 statement. Thus, the Court did not hear directly from all of the individuals alleged improperly to have coerced the 3507 witnesses.
The issue, then, is whether the Court can determine that a 3507 statement was voluntary when confronted with a witnesses' allegation that he unlawfully was coerced into giving the statement if the State does not present the testimony of the individual alleged to have threatened or coerced the witness. For the reasons that follow, the Court has concluded that the preponderance of the evidence can establish the voluntariness of a statement even without the rebuttal testimony of an individual who is alleged by a 3507 witness to have coerced the witness into giving the statement.
II. Discussion A. The Burden of Proof
The Court was mindful of the burden of proof throughout the evidentiary proceedings relating to the 3507 statements and has been vigilant in its application of that burden to the facts presented. As stated, the well-settled burden of proof when determining the voluntariness of a 3507 statement is proof by a preponderance of the evidence. Proof beyond a reasonable doubt is not required. Proof by a preponderance of the evidence means simply proof "that something is more likely so than not so."
Id. See also State v. Rooks, 401 A.2d 943, 949 (Del. 1979).
Accord Outlaw v. State, 327 A.2d 606 (Del. 1974) (stating burden of proof in the context of determining the voluntariness of a defendant's confession) (citing State v. Dickerson, 325 A.2d 367 (Del. 1974) (same)). See also Doan v. State, 234 N.W.2d 824, 827 (Minn. 1975) (remanding case upon concluding that trial court erroneously applied a beyond a reasonable doubt burden of proof when determining voluntariness of defendant's confession).
State v. Winsett, 205 A.2d 510, 518 (Del.Super. 1964).
When determining whether a statement is voluntary, the Court must consider whether, "under the `totality of the circumstances,' the witness' statements were the product of a rational mind and free will." In doing so, the Court should "focus . . . on . . . the behavior of the interrogators, as well as the mental/physical makeup of the individual being interrogated, to determine whether the individual's will was so overborne that the statements produced were not the product of a rational intellect and free will." When the evidence conflicts, the Court must attempt to reconcile the evidence or make appropriate credibility determinations among the witnesses.
Roth v. State, 2001 WL 1692380, at *6 (Del.Supr.) (quoting Martin v. State, 433 A.2d 1025, 1032 (Del. 1981)).
Id.
Id. at *5, 7. See also Miller v. State, 1993 WL 307619, at **2 (Del.Supr.) (upholding the trial judge's decision to accept the testimony of a police officer over a witness who alleged that her 3507 statement was coerced, the Court noted "[w]e have long held that questions regarding witness' credibility remain within the sole province of the trial judge") (citations omitted).
It was through this lens — a lens forged by well-settled case law articulating the manner by which the issue of voluntariness must be decided — that the Court viewed the evidence regarding the voluntariness of the 3507 statements sub judice.
B. Cornell Garvin
Mr. Garvin was interviewed at the Wilmington Police Department for the first time on July 18, 2000. He was interviewed again on July 20, 2000 (the videotaped interview in question) and for a third time on July 24, 2000. Although his age was not established in the record, he appeared to be mature while testifying and while giving his videotaped statement and was clearly over the age of majority. He had experience with the criminal justice system; at the time of his interview with the police, he was on probation and was wanted on active warrants for violating probation. His educational background is not known although he appeared to possess at least average intelligence.
See United States v. Williams, 447 F. Supp. 631, 636-37 (D.Del. 1978) (noting that age, education, experience with the criminal justice system are relevant, but not conclusive, to the outcome of the voluntariness inquiry). See also Alston v. State, 554 A.2d 304, 307-08 (Del. 1989) (noting age, education and criminal history in the analysis of the voluntariness of a confession).
Mr. Garvin testified initially that he was not threatened in any manner prior to giving his tape-recorded statement. Rather, he claimed that Detective Ciritella and other detectives represented to him "if you help me out, I'll help you out if you ever get locked up." He later testified that Detective Ciritella advised him "if you ever get in any trouble, holler at me. All you got to do is say this person [the defendant] shot the boy." During Mr. Garvin's direct examination, he claimed that it was these promises of protection from arrest in the future that coerced him to give his statement implicating the defendant in the crime. On cross examination, however, Mr. Garvin stated for the first time that he was threatened by various officers that he would not be released from prison unless he cooperated with the police investigation. Throughout his testimony, Mr. Garvin was adamant that he was never read his Miranda rights, even during the videotaped interview.
Detective Ciritella testified that he never promised Mr. Garvin protection from arrest, nor did he threaten him in any manner. Moreover, he never heard any other officer threaten Mr. Garvin or promise him anything. Detective Ciritella's testimony was credible.
The videotaped interview enhanced Detective Ciritella's testimony and belied Mr. Garvin's claim of inducement. First, the environment of the interview was not coercive. Detective Ciritella was pleasant and courteous. Mr. Garvin appeared relatively at ease. And, importantly, contrary to Mr. Garvin's ardent denials, Detective Ciritella did, in fact, provide a recitation of the Miranda rights which were promptly waived by the witness.
The Court found other inconsistencies in Mr. Garvin's claim of coercion. Not only did he fabricate a coercive environment during the interview, he also could not remain consistent with respect to the nature of the coercion — at first it was a promise of police protection from arrest and later it was a threat to keep him in prison. When balanced against credible testimony from Detective Ciritella denying police coercion, and an enlightening glimpse of the interview environment as depicted on the videotape, the Court easily concluded that the preponderance of the evidence established that the statements were voluntary.
C. James Singletary
Mr. Singletary's age and educational background were not established during his testimony. From the Court's observation, he appeared to be in his mid-to-late thirties. Notwithstanding his frequent outbursts during the trial, when calm, he appeared intelligent and articulate. He demonstrated these qualities even more so during the video-taped interview conducted by Detective Ciritella. He was experienced with the criminal justice system; according to his testimony, he was on parole out of New York at the time he gave his 3507 statement.
Mr. Singletary was interviewed by the police on two occasions: the first was at the police station on July 21, 2000 and the second was at his work place on July 24, 2000. The first interview followed what, from all accounts, was a swift and decisive apprehension of Mr. Singletary by several armed police officers who seized him from his sister's home while members of his family watched. At first, he gave a false identification. After some checking, the police identified him correctly and placed him in custody.
Mr. Singletary claims that the police found him in possession of a small amount of crack cocaine at the scene. According to Mr. Singletary, because there were children and drugs in the home, an unidentified officer from "child protective services" threatened to remove the children from the home unless he cooperated with the police. Also, at the time he was apprehended, Mr. Singletary was wanted in New York for a parole violation. He claims that he had a close companion who was very ill at the time. He testified that he was quite worried that he would be incarcerated on the parole violation and, consequently, would be unable to care for his companion.
Mr. Singletary first claimed that the children were his but later claimed that the children belonged to his sister.
For his part, then, Mr. Singletary alleged that his 3507 statements were involuntary because: (1) he was afraid he would be incarcerated on the parole violation if he did not cooperate with the police; and (2) he was told by the "child protection" officer that the children would be taken away from their home if he did not cooperate.
Mr. Singletary's first claim of coercion can be addressed summarily. He never claimed that any police officer, or other law enforcement official, ever threatened him with respect to the New York parole violation. Rather, he simply perceived that cooperating with the police offered him the best opportunity to escape incarceration. As best as the Court could discern from his testimony, this perception was not based on anything the police told him but rather on his own sense of what was in his (and perhaps his sick companion's) best interests. "Coercive police activity is a necessary predicate to the finding that a [statement] is not voluntary . . ." No such coercive conduct was alleged or evident with respect to the New York parole violation.
Mr. Singletary stated: "I gave the statements and everything because I thought maybe I was going to get helped on my parole violation."
Miller, supra (citing Colorado v. Connelly, 479 U.S. 157, 167 (1986)).
Mr. Singletary's allegation with respect to the threat to remove his (later his sister's) children from the home is another matter. If such a threat was made, it could be sufficiently coercive to overcome Mr. Singletary's free will to decline to speak with the police. And, to the extent the Court's oral ruling may suggest otherwise, the suggestion was not well-founded.
See e.g. United States v. Lee, 157 F. Supp.2d 316, 327 (D.Del. 2001) ("Express threats that a defendant's children will be taken away . . . if she fails to cooperate have been held to be so coercive that defendant's statements were rendered involuntary") (citing Lynumn v. Illinois, 372 U.S. 528, 534 (1963)).
The Court noted that one possible interpretation of Mr. Singletary's testimony is that the child protective services officer actually was indicating a willingness (or expressing a promise) not to seek removal of the children if he cooperated with police. The Court cited State v. Rooks, 401 A.2d 943, 948 (Del. 1979) for the proposition that a promise or inducement does not necessarily render a statement involuntary "unless so extravagant, or so impressionable as to overbear the person's will and rational thinking process." On reflection, the citation to Rooks was misplaced. Mr. Singletary's testimony described a threat, not a promise or inducement.
Once again, the State presented the testimony of Detective Ciritella in its effort to demonstrate the voluntariness of Mr. Singletary's statement. Detective Ciritella testified that he did not threaten Mr. Singletary in any way, nor did he hear or hear of any other officer threatening Mr. Singletary. He particularly did not hear of any threats to remove children from Mr. Singletary's sister's home. Indeed, he was not aware that Mr. Singletary had any children until he heard him say so at trial. Mr. Singletary did not identify or describe the child protective services officer he claims threatened him, and the State did not call any representative from child protective services as a witness during the hearing.
The State also presented the videotape of Mr. Singletary's interview with Detective Ciritella. As before, Detective Ciritella was pleasant and courteous during the interview. Detective Ciritella recited to Mr. Singletary his Miranda rights and Mr. Singletary promptly waived them. During the interview, Mr. Singletary never once mentioned his or his sister's children or any threats that had been made to him prior to the interview. Indeed, he appeared eager to help, often volunteering information and attempting to remember details even as Detective Ciritella would leave the room to retrieve parts of his file. When he did appear stressed or concerned on the video, he would mention only his concern that he not be sent back to prison; again, no reference was made to children. Significantly, when Mr. Singletary would express concern about returning to prison, Detective Ciritella would either not respond or would indicate generally that he understood the witness' concerns. No promises or inducements were offered.
The parties disputed whether Mr. Singletary was handcuffed during the interview. It appeared to the Court that one of his hands was, in fact, handcuffed to the chair. This is not surprising, of course, since he was in police custody at the time of the interview.
The Court determined that Mr. Singletary's statement "more likely than not" was voluntary. While rebuttal evidence from or about the child protective services representative might have removed any reasonable doubt that the statement was voluntary, the evidence was not necessary to establish voluntariness by a preponderance of the evidence.
This conclusion is drawn from the totality of the circumstances of this case. By no means should this be interpreted by the State as a "hall pass" to make half-hearted evidentiary presentations in support of the Section 3507 foundational elements. Every effort should be made to track down all witnesses who may have knowledge regarding the voluntariness of a statement and to have them available to testify if necessary on voir dire. The Court notes in this case that Mr. Singletary did not identify the child protective services representative with any specificity and apparently mentioned the alleged threat for the first time during his trial testimony. Moreover, to require the State to anticipate every law enforcement officer who may be identified by a witness as a participant in the coercion would be unreasonable. Nevertheless, either the State or the Court sua sponte should require the presence of such witnesses when necessary to enable the Court to fulfill its fact-finding responsibility under Section 3507, even if this requires a brief adjournment of the hearing. As stated, the additional witness was not deemed necessary by the Court in this instance.
Several factors supported the Court's ultimate conclusion that Mr. Singletary was not being truthful when he described the threat from child protective services. First, Mr. Singletary's demeanor on the witness stand was evasive and, at times, explosive when confronted with requests for more detail. He simply did not want to elaborate on his vague description of the threat.
Second, his testimony regarding the nature of the threat was inconsistent — at first the threat was that his children would be removed from the home, later the threat was that his sister's children would be removed from the home. The basis of the threat likewise was not clear from his testimony.
Third, Mr. Singletary's claim of a threat made no sense in the face of Detective Ciritella's credible denial of any knowledge of the threat. While it is true that Mr. Singletary never claimed that Detective Ciritella communicated a threat, implicit in his story is the understanding that Detective Ciritella would be made aware of the threat. If Detective Ciritella did not know to report back to the child protective services representative regarding the quality of Mr. Singletary's cooperation, how would child protective services know whether to "make good" on the threat to remove the children from the home? It is reasonable to expect that the lead investigating officer would be made aware of the leverage afforded to him by the potential removal of the children in the event Mr. Singletary did not cooperate. Again, Detective Ciritella's testimony that he did not even know that Mr. Singeltary had any children, much less that a threat had been made to remove them from the home, was credible.
Lastly, Mr. Singletary's demeanor on the video, and the lively and spontaneous nature of the exchange between officer and witness, both are inconsistent with the claim of coercion.
D. Shemuel Clay
Mr. Clay was 19 years old when he gave his statement. He had a tenth grade education. He was relatively articulate both on the witness stand and during his police interview, and he was clearly knowledgeable of the criminal justice system. The record indicates that he was on probation at the time he gave his 3507 statement.
Mr. Clay was brought into police custody on a warrant for first degree murder and related charges arising from the shooting at issue in this case. The affidavit of probable cause alleged that Mr. Clay was an accomplice in the murder, not the shooter. Mr. Clay was advised of the pending charges, but not of the factual bases of the charges, prior to the police interviews of which there were two. The first, conducted by Detective James Diana, occurred at approximately 1:00 a.m. on the morning of July 30, 2000. The second interview was conducted by Detective Ciritella approximately twelve hours after the first.
Consistent with the other 3507 witnesses, Mr. Clay also claimed that his statement to the police was not voluntary. Mr. Clay's story was that he asked for an attorney before the questioning began but was told by Detective Diana, in essence, that an attorney was not necessary. According to Mr. Clay, the police continued to question him even after he invoked his right to have an attorney present. Because this testimony implicated more than a voluntariness inquiry, the Court directed the State to produce Detective Diana to address the contention that Mr. Clay requested that he be provided with counsel. The Court was advised that Detective Diana was in the hospital and that he would be incapacitated for medical reasons for at least two weeks. The parties agreed that Detective Diana was "unavailable" for trial and that his response to Mr. Clay's allegations could be made by affidavit. Detective Diana's affidavit denies that Mr. Clay ever inquired about his right to counsel.
Mr. Clay's testimony in this regard was unclear and somewhat inconsistent. At first he claimed that he was told that an attorney was not necessary. Later in his testimony he claimed that he was told that an attorney would not be provided to him.
Mr. Clay testified that he requested counsel almost immediately before he was provided with a waiver of Miranda rights form to read and sign. The videotape of the interview with Detective Diana reveals that Detective Diana engaged in a lengthy and deliberate colloquy with Mr. Clay regarding his Miranda rights, including the right to counsel and the right to have counsel present during questioning. Mr. Clay responded unequivocally that he understood his rights and that he did not wish to have counsel present during the interview. He then executed the waiver of Miranda rights form.
The State argued that Mr. Clay's subsequent waiver of his Miranda rights rendered moot any concern regarding Mr. Clay's purported prior invocation of the right to counsel. The Court disagreed, citing Edwards v. Arizona, 451 U.S. 477 (1981) for the proposition that police questioning must cease immediately upon the suspect's invocation of his right to counsel and cannot resume unless and until the suspect is afforded counsel or initiates contact with the police.
The Court finds Mr. Clay's claim that he requested counsel to be incredible. He was well familiar with his rights and did not appear either on tape or on the witness stand to be easily manipulated. The lengthy discussion of the right to counsel between witness and suspect depicted on the videotape — which, according to Mr. Clay, came right on the heels of his request for counsel — also does not square with Mr. Clay's story. In sum, Mr. Clay's transient assertion that he invoked his right to counsel did not outweigh the credible evidence presented by the State to the contrary.
Defense counsel also argued that the fact that Mr. Clay was facing a murder charge supported the notion that his statements to the police were not voluntary. The Court rejected this argument for several reasons. First, the charges were supported by an arrest warrant issued by a neutral and detached magistrate upon a showing of probable cause. No effort was made to challenge the bona fides of the arrest and no basis to do so was evident to the Court. Moreover, the environment during both the Diana and Ciritella interviews was not coercive. The closest to coercion that either officer came was when Detective Diana urged Mr. Clay to "show some remorse" and reminded him that the charges he faced were serious and that the truth could help him. Such tactics are by no means ipso jure coercive. In the totality of the circumstances of this case, such conduct was entirely appropriate. Detective Diana emphasized to Mr. Clay more than once that he could not promise anything and that he did not know how the charges against him would be handled. Finally, when determining whether the witness' statements were coerced, the Court cannot lose sight of the fact that Mr. Clay's statements were self-exculpatory. He was not coerced into a confession of guilt.
See e.g. Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.), cert. denied, 479 U.S. 989 (1986) (noting that it was proper police conduct to attempt to play on a suspect's sympathies and to remind the suspect that honesty may help secure leniency down the road). See also Alston, 554 A.2d at 308 (the focus must be on whether a promise of leniency "overbore [the witness'] thinking process"); United States v. Fraction, 795 F.2d 12, 14-15 (3d Cir. 1986) (statement that interrogating officer would advise others that the witness cooperated is not coercive).
DeJesus 655 A.2d 1180, 1198 (Del. 1995) (stating that defendant's "exculpatory statement . . . serve to undermine his claim of coercion"); McIntyre v. State, 526 A.2d 30, 39 (Md.Ct.App. 1987) ("Also to be factored into the totality [of circumstances] test is that [the defendant's] statement was exculpatory and was given shortly after his arrival at the police station under circumstances that disclosed no police coercion"); People v. Hendricks, 495 N.E.2d 85, 112-13 (Ill.App. 1986) ("The inculpatory or exculpatory nature of the statements is also a factor which may be considered [when determining voluntariness]"), rev'd on other grounds, 560 N.E.2d 611 (Ill. 1990).
Finally, Mr. Clay made vague references to threats made by the police towards his sister. Detective Ciritella clearly and credibly testified that no threats were made to Mr. Clay regarding any issue. Moreover, to the extent Mr. Clay was worried about his sister it did not show on the videotape. He initially provided a story to the police which he later acknowledged was untrue. It was only after he was reminded of his own situation that he determined to "come clean." And, certainly, Mr. Clay's other credibility problems do not lend credence to his claim of a threat here.
For instance, in addition to the credibility concerns already mentioned, the Court was struck by Mr. Clay's testimony that he was told by Detective Diana in advance of the interview that the defendant was the lead suspect in the case. Yet during the interview Detective Diana advised Mr. Clay, in essence, that the police knew "who the shooter was" and then asked if Mr. Clay knew who the police thought was the shooter. Initially, Mr. Clay denied any knowledge of who the lead suspect might be. The taped interview, which immediately followed the purported statement by Detective Diana, does not comport with Mr. Clay's trial testimony.
The preponderance of the evidence indicates that Mr. Clay's statements to the police were voluntary.
III. Conclusion
The Court was presented with the out-of-court videotaped statements of three witnesses recorded shortly after the events which were the subject of the statements. In each tape, the witnesses appear to be forthcoming with detailed information. The stories offered by each witness to the police were consistent. Yet at trial, each witness recanted the substance of their prior statements and alleged that the statements were coerced. The trinity of witnesses alleging coercive police conduct was suggestive of an investigation out of control. The evidence presented at trial, however, suggested no such thing. The preponderance of the evidence revealed that the police were courteous and deliberate in each of their encounters with the witnesses. The Court is satisfied that the statements were not coerced from the witnesses; they were voluntarily given. According, for the reasons set forth herein, and those stated by the Court orally on the record, the statements are admissible under Section 3507.
IT IS SO ORDERED.