Opinion
No. 60, 2002
Submitted: October 30, 2002
Decided: November 19, 2002
Court Below: Superior Court of the State of Delaware in and for Sussex County Cr.A. Nos. S01-02-0384 through 0386
Affirmed.
Unpublished opinion is below.
DARUS YOUNG, § Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 60, 2002 In the Supreme Court of the State of Delaware. Submitted: October 30, 2002 Decided: November 19, 2002
Before VEASEY, Chief Justice, WALSH and BERGER, Justices.
This matter was originally submitted on briefs before a panel consisting of Chief Justice Veasey, Justice Walsh and Justice Holland. Due to Justice Holland's unavailability, this matter was argued before the panel as listed.
WALSH, Joseph T., Justice
ORDER
This 19th day of November 2002, upon consideration of the briefs of the parties and oral argument it appears that:
(1) The appellant, Darus E. Young ("Young") appeals from his conviction in the Superior Court following a jury trial of charges of Possession with Intent to Deliver Cocaine, Conspiracy in the Second Degree and Possession of Drug Paraphernalia. He asserts two claims of error: (i) that the trial court erred in permitting the State to introduce certain evidence of prior bad acts and (ii) that the prosecutor engaged in impermissible vouching in his closing summation to the jury. We find no merit in either claim and accordingly affirm.
(2) Young's arrest resulted from the activities of an alleged acquaintance, William Sharpe ("Sharpe"), who agreed to cooperate with the police following Sharpe's own arrest for a drug offense. While police were present at his home, Sharpe recorded a telephone call from an individual, whom Sharpe identified as Young, during which arrangements were made to purchase drugs at a specific location. Young arrived at the location in the company of Bettie Whaley ("Whaley") who was driving, and another individual, Willie Bynes, who was seated in the rear. The police stopped the vehicle and arrested all three occupants after finding plastic bags containing crack cocaine underneath the driver's seat. Later Whaley claimed the drugs were hers and attempted to exonerate Young.
(3) At trial, the State, over Young's objection, attempted to present evidence of prior drug transactions between Sharpe and Young. Initially, the court refused to admit such evidence. Later in the trial, however, when Whaley testified as a reluctant State witness and claimed that Young was not involved in the drug transaction, the State was permitted to offer the prior bad acts evidence. Young argued to the Superior Court that Sharpe's testimony concerning prior instances when Sharpe claimed he had purchased drugs from Young was vague and indefinite, thus failing the Getz factor that requires the evidence of prior bad acts to be "plain, clear and conclusive."
Getz v. State, 538 A.2d 726 (Del. 1988), promulgated standards for the admissibility of prior bad acts evidence, including the giving of an appropriate jury instruction. In this case, the trial judge carefully analyzed and complied with all factors.
(4) While the record supports Young's claim that Sharpe was not precise in his recounting of his prior drug transactions with Young, he was emphatic that those prior events occurred. To a great extent, the admissibility of Sharpe's testimony involved an assessment of his demeanor as he testified — a function reserved to the judge in the first instance, and later as a matter of weight for the jury. In any event, given our limited standard of review, we cannot conclude that Sharpe's testimony lacked a foundation or was clearly erroneous. While the Getz analysis may be required as a matter of law, to the extent that factual determinations are embedded in that exercise, we review the trial court's factual finding under a clearly erroneous standard. In this regard, the standard of review is analogous to that employed in reviewing a trial court's factual findings in a suppression hearing. See, e.g., Gregory v. State, 616 A.2d 1198, 1200 (Del. 1992). (Trial court's findings after evidential standard reversed only if determined to be clearly erroneous.)
(5) Young next complains that the prosecutor engaged in improper conduct injecting the prosecutor's own version of pretrial events in cross-examining Whaley, and in vouching for that testimony in his closing jury summation. Although Whaley had pleaded guilty to a conspiracy charge and was called as a State's witness at trial, she testified that Young was not implicated in her possession of the drugs seized from her vehicle. The State sought to impeach her by extracting from her an admission that she had pled guilty to a charge that alleged that she conspired with Young to possess drugs with cocaine with intent to deliver. After further attempts by the prosecutor to persuade Whaley to admit that she pleaded guilty to the conspiracy charge, the State, without objection, entered into evidence the Information reflecting the conspiracy charge.
(6) Young maintains that the prosecutor, in his closing summation to the jury, injected his personal knowledge of Whaley's plea negotiations and her attempt to exonerate Young and thus became a witness for the State. Preliminarily, we note that there was no objection raised during the prosecution's summation and thus any claim of error is reviewed under a plain error standard. Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (to constitute plain error "the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."). (citing Dutton v. State, 452 A.2d 127, 146 (Del. 1982)).
(7) While the prosecutor's comments relating his knowledge of the particulars of Whaley's plea arrangements were borderline objectionable, any error was harmless in view of uncontested admission of the Information which established what the prosecution was arguing to the jury: that Whaley's trial testimony to the effect that Young was not involved in the drug transaction which led to her arrest was contradicted by her plea of guilty to conspiracy with Young to commit a drug transaction on the same date. The prosecutor's conduct here, while suggestive of offering his personal knowledge, is clearly distinguishable from the circumstances present in Hughes v. State, 490 A.2d 1034, 1048 (Del. 1985), and Martin v. State, 433 A.2d 1025 (Del. 1981), where the prosecutor's prior contact with a witness and his subsequent effort to impeach the witness required that he withdraw in order to testify. Given the import of the admission contained in the Information, the prosecutor's characterization of Whaley's pretrial actions, even if based on personal participation, added little to the impeaching effort of the stipulated evidence. We find no basis to attribute plain error to the prosecutor's conduct in this case.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.