Opinion
No. 430, 2001.
Submitted: March 21, 2002.
Decided: May 31, 2002.
Court Below: Superior Court of the State of Delaware in and for Sussex County, Cr. ID No. 0012014953.
Affirmed.
Unpublished Opinion is below.
KEVIN W. WILSON, JR., Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 430, 2001 In the Supreme Court of the State of Delaware. Submitted: March 21, 2002 Decided: May 31, 2002
Before WALSH, HOLLAND and STEELE, Justices.
MYRON T. STEELE, Justice.
ORDER
This 31st day of May 2002, on consideration of the briefs of the parties, it appears to the Court that:
1) In July 2001, a Superior Court jury convicted Appellant Kevin W. Wilson, Jr. of two counts of Rape in the First Degree, one count of Rape in the Second Degree, one count of Assault in the Second Degree, and four counts of Possession of a Deadly Weapon During the Commission of a Felony. They acquitted Wilson of one count of Attempted Rape in the First Degree and one count of Possession of a Deadly Weapon During the Commission of a Felony. This is Wilson's direct appeal.
2) On the evening of Friday, December 21, 2000, Wilson met Jorge Sierra and Naydean Cornish at a tavern in Greenwood, Delaware. Neither Sierra nor Cornish had met Wilson before that night. At the tavern, Wilson, Sierra, and Cornish drank alcohol and played pool until the tavern closed. They then moved to Wilson's nearby apartment and continued drinking. The State argued at trial that, at some point that evening, a visibly intoxicated Sierra went into Wilson's bathroom where Wilson attacked him with a pool stick, leaving Sierra unconscious. Wilson then threatened and repeatedly raped Cornish. Cornish managed to free herself from Wilson and ran outside to Wilson's neighbor's house and called the police. Cornish then went to the hospital where she was examined. As part of the examination, the nurse conducted tests for inclusion in a rape kit.
3) Wilson offers three separate arguments on appeal. First, he contends that the trial judge improperly reseated a juror whom Wilson had directed his counsel to peremptorily challenge. The initial jury venire included only two African-American jurors. After Wilson had used peremptory challenges to strike both of those jurors, the State objected, claiming that he was attempting to strike all African-American jurors from the panel. It is well settled that a party may not use its peremptory challenges to exclude any juror on the basis of race. When a Batson objection is made, the objecting party must make a prima facie showing of discrimination. The trial judge found that the State satisfied this initial prong by noting in the record that both African-American jurors had been struck by a Caucasian defendant (Wilson) who stood accused of raping an African-American woman (Cornish). Once the State had made that prima facie showing of discrimination, the burden shifted to Wilson to articulate a race-neutral explanation for using his peremptory challenges. The trial judge found that defense counsel articulated a satisfactory reason concerning the first juror struck and the State did not object to that ruling. According to defense counsel, Wilson requested that he strike the second juror because "she looked funny at [him]." The judge determined this explanation to be a mere pretext and reseated the juror.
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Robertson v. State, 630 A.2d 1084 (Del. 1993).
4) Because a trial judge's acceptance or rejection of a party's reason for striking a juror is almost solely based on the credibility of that party's counsel, we accord great deference to the findings of the trial judge. We can find no compelling reason to depart from this standard and disturb the trial judge's findings in this instance.
Robertson v. State, 630 A.2d 1084, 1091 (Del. 1993).
5) Wilson next contends that the trial judge abused his discretion by admitting, under Del. C. Ann. tit. 11 § 3507, several statements Cornish made shortly after the incident in question. Section 3507 requires, inter alia, that: a) the declarant of any out-of-court statement falling under this provision testify on direct examination about the events in the statement and the statement's veracity; b) the statement be voluntarily made; and c) the declarant must be subject to cross-examination about the statement. Wilson contends that the trial judge placed a "strategic burden" on his defense by restricting the timing of his cross-examination of Cornish about her out-of-court statements. This argument is without merit. The record clearly indicates that, even though the State presented Cornish's statements after her initial direct testimony and cross-examination, the prosecutor nevertheless made Cornish available for cross-examination after the testimony of each witness that the State called for the purpose of laying the foundation for her Section 3507 statements. While Wilson may well have preferred to have the statements introduced before Cornish testified, there is simply no support in the record before us for Wilson's position that the timing of the admission of those statements into evidence denied him his right to effective cross-examination or otherwise created an unsurmountable "strategic burden" that unfairly prejudiced him. Here, as in Smith upon which Wilson relies, even if the statements were introduced after Cornish testified, any error in the timing of the introduction of the statements does not mandate reversal. Cornish testified about the events surrounding the crimes, i.e., that which she perceived or heard, and was subject to cross-examination about those perceptions. The State made her available in its case after each witness testified about her out-of-court statements. Unlike Smith, there is no suggestion that the State intended to force Wilson, the non-offering party, into calling Cornish during his case. As in Smith, the State had an extremely strong case against Wilson with Cornish's in-court testimony and the physical evidence quite apart from the out-of-court statements. Here, the "timing perspective" would not have affected the outcome of the case.
See Smith v. State, 669 A.2d 1, 8 (Del. 1995) ("the introduction of a § 3507 statement cannot be timed so as to place any strategic burden on the non-offering party").
See Demby v. State, 695A.2d 1152 (Del. 1997).
6) Finally, Wilson argues that the trial court erred by refusing to issue a missing evidence instruction regarding the rape kit taken at the hospital. This contention is similarly without merit. It is well settled that the police have a duty to collect and preserve material evidence that might exculpate a defendant. Moreover, the failure to do so necessitates a missing evidence instruction to the jury that states that it must infer that the missing evidence would tend to exculpate the defendant. That duty, however, does not require that the police affirmatively test any evidence. In this instance, the rape kit in question was never "missing" in the manner envisioned to require the missing evidence instruction. Here, the evidence was not lost through the culpable action of the State; rather the record clearly shows that defense counsel had sufficient access to that evidence and the opportunity to conduct any test he thought necessary. The State is not obligated to conduct an investigation for the benefit of a defendant.
Lolly v. State, 611 A.2d 956, 960-62 (Del. 1992); Deberry v. State, 457 A.2d 744 (Del. 1983).
Lolly, 611 A.2d at 961-62, n. 6.
Daniels v. State, 703 A.2d 643, 1997 WL 776202, **2 (Del. 1997) (order).
NOW, THEREFORE, IT IS SO ORDERED that the judgment of the Superior Court be, and hereby is, AFFIRMED.