Opinion
No. 518, 2000
Decided: January 24, 2002
Court Below: Superior Court of the State of Delaware in and for Kent County Cr.A. Nos. IK99-08-0030 through IK99-08-0032 Cr. I.D. No. 9806001490
AFFIRMED.
Unpublished Opinion is below.
JOSEPH WALKER, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 518, 2000 Supreme Court of the State of Delaware. Decided: January 24, 2002
Court Below: Superior Court of the State of Delaware in and for Kent County Cr.A. Nos. IK99-08-0030 through IK99-08-0032 Cr. I.D. No. 9806001490
Before WALSH, BERGER and STEELE, Justices.
Carolyn Berger, Justice:
ORDER
This 24th day of January, 2002, on consideration of the briefs of the parties, it appears to the Court that:
1) Joseph Walker was convicted, following a jury trial, of receiving stolen property, possession of a firearm by a person prohibited, and carrying a concealed deadly weapon. Walker argues that the trial court erred in: (i) finding no conflict of interest mandating withdrawal of Walker's counsel; (ii) denying his motion to sever the possession of a firearm charge; and (iii) admitting a police report and notes under 11 Del. C. § 3507.
2) On June 2, 1998, a dog-bite complaint precipitated a neighborhood altercation that involved Walker and a man named Nicholas Murray, among others.
Murray pulled out a gun and attempted to fire it, but the gun jammed. Walker responded by pulling a gun out from under his shirt and pointing it at Murray. At about that time, a neighbor called the police. Dover Police Officer Jason M. Pires took Murray into custody and detained Walker to find out "what was going on."
Walker told Pires that he did not have a gun, and he consented to the search of his house, where Pires found a Glock pistol in a kitchen trash can. The Dover Police later determined that the gun had been stolen in 1997.
3) During the State's case in chief, Walker's counsel learned that another attorney in the Office of the Public Defender had represented Murray on the charges against Murray arising out of the dog-bite altercation. The charges against Murray had been fully adjudicated by the time Walker's counsel discovered his office's dual representation. Nonetheless, Walker would not consent to his representation by the Public Defender's Office despite the potential conflict, and counsel moved for a mistrial.
4) "The Sixth Amendment right to the effective assistance of counsel provides for representation that is `free from conflicts of interest or divided loyalties.'" Dual representation is not a per se violation of one's Sixth Amendment right to effective counsel, but when a judge is "alerted to possible conflicts of interest [the judge] must take adequate steps to ascertain whether the conflicts warrant separate counsel."
Lewis v. State, 757 A.2d 709, 714 (Del. 2000) (Internal citations omitted.)
Wheat v. U.S., 486 U.S. 153, 160 (1988).
In this case, the trial court did just that. The court considered the fact that Murray was not going to be called as a witness and determined that there was no material conflict requiring either Walker's counsel to withdraw or a mistrial. That ruling was correct, as Murray's involvement in the altercation did not bear on the charges against Walker, all of which related to Walker's possession of a stolen gun.
5) Walker next argues that the trial court erred in denying his motion to sever the charge of possession of a deadly weapon by a person prohibited. Walker contends that his motion to sever should have been granted because facts concerning his prior felony convictions prejudiced the jury in its consideration of the remaining charges.
6) The denial of a motion to sever is discretionary and will not be disturbed unless defendant demonstrates a "reasonable probability" that the joint trial caused
"substantial injustice." In his opening statement, Walker's counsel conceded that Walker was carrying a concealed deadly weapon. A State witness, Carrie A.
Bates v. State, 386 A.2d 1139, 1141 (Del. 1978).
McCoy, confirmed that Walker drew a gun out from under his shirt. Thus, the jury knew from the outset that Walker was carrying a concealed deadly weapon on the date of the dog-bite altercation. The only contested issue was whether Walker knew that the gun he was carrying was stolen. On that point, Walker told the police that he paid approximately $150 for the weapon, whereas the owner of the gun said that it was worth about $700. Walker did not testify and the decision as to whether he knew the gun was stolen did not turn on his credibility; it turned on the fact that he paid so much less than its actual value. Given these facts, we find no risk of substantial injustice.
7) Finally, Walker argues that the Supplemental Police Report of Officer Pires and Detective Richardson's interview notes should not have been admitted under 11 Del. C. § 3507. He contends that the two documents were cumulative of the two officers' testimony; were improperly offered after the officers had testified; and unfairly added to the reliability of the officers' testimony. Even if the documents should not have been admitted under 11 Del. C. § 3507, we are satisfied that any error was harmless beyond a reasonable doubt. As Walker notes, the documents were cumulative of the officers' testimony. Moreover, as noted above, the only real factual dispute was whether Walker knew the gun was stolen and the facts establishing the value of the gun came from the gun's owner, not the police reports.
NOW, THEREFORE, IT IS ORDERED that the judgments of the Superior Court be, and the same hereby are, AFFIRMED.