Summary
finding a defendant's assertions that the State improperly vouched for the credibility of a turncoat witness in a closing statement to be without merit where the prosecutor merely explained the inconsistencies between a witness's in-court testimony and out-of-court statements
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ID. Nos. 0504010549, 0504010557.
Submitted: April 4, 2007.
Decided: April 17, 2007.
UPON DEFENDANTS' MOTIONS FOR JUDGMENT OF ACQUITTAL AND MOTION FOR NEW TRIAL MOTIONS.
DENIED.
Martin B. O'Connor, Esquire, Mark Chernev, Esquire, Department of Justice, Wilmington, Delaware.
Edmund M. Hillis, Esquire, Nicole M. Walker, Esquire, Wilmington, Delaware, Attorneys for Anderson Brown.
Anthony A. Figliola, Esquire, Peter W. Veith, Esquire, Wilmington, Delaware, Attorneys for Bakr Dillard.
MEMORANDUM OPINION
On July 20, 2006, Anderson Brown and Bakr Dillard were convicted by a jury of Manslaughter, Murder First Degree (Felony Murder), two counts of Robbery First Degree, and Conspiracy Second Degree. On July 26, 2006, Dillard filed a Motion for Judgment of Acquittal. On the same date, Brown filed a Motion for Judgment of Acquittal Notwithstanding the Verdict or a New Trial. The State responded to Brown's and Dillard's motions, arguing that they are without merit and should be denied.
MOTIONS FOR JUDGMENT OF ACQUITTAL Dillard's Motion for Judgment of Acquittal
In his Motion for Judgment of Acquittal, Dillard asks that the Court set aside the jury verdict of July 20, 2006 on the basis of insufficient evidence. Dillard contends that the evidence presented does not put him at the scene of the crime. Dillard argues that the issue is not whether the crime was committed but who committed the crime. Dillard contends that the evidence against him was limited to an out-of-court statement by Ruth Ann Clark that she saw Dillard participate in the crime. Clark's statement was supported only by an out-of-court statement by Joanne Brown.
During trial, Clark stated under oath that Dillard was not at the scene of the crime. The State introduced no physical evidence that would place Dillard at the scene of the crime. The surviving victim could not put Dillard at the scene of the crime. Dillard testified that he was not at the scene of the crime. Alibi witnesses testified that the murder occurred during a period when Dillard could not have been at the crime scene. The State offered no evidence to rebut the alibi witnesses. In closing argument, the State suggested that Clark changed her testimony out of fear of reprisal. Dillard contends that the State was allowed to infer perjury on the part of Clark, but was not required to produce evidence of her perjury. Dillard argues that allowing the State to infer perjury is an unconstitutional presumption undermining the fact finders' responsibility. Due process prohibits use of any presumption that relieves the State of the burden of persuasion on an essential element.
Mullaney v. Wilbur, 421 U.S. 684, 697-702 (1975).
Brown's Motion for Judgment of Acquittal
Brown requests that the Court grant his Motion for Judgment of Acquittal on the basis of insufficient evidence. In support of his motion, Brown asserts that during the State's closing arguments, the prosecutor referred to facts not in evidence. The State argued that Clark had recanted her statement because she feared Brown's family and had received threats from others. There is no evidence in the record to support this contention.Further, the prosecutor motioned to Brown's family in the gallery when he made this comment. Brown asserts that the State's inference, that the presence of Brown's family in the courtroom is evidence for the jury to consider, amounted to improper prosecutorial conduct. Brown contends that Clark, the only witness who allegedly observed the crime, had severe credibility issues because she gave several versions of the events, and no other evidence corroborated her testimony. Finally, this was a close case with respect to guilt.
See infra discussion of this issue as part of the Court's analysis of Brown's Motion for a New Trial.
See Cousins v. State, 2001 WL 1353571, at *2 (Del. 2001); Hughes v. State, 437 A.2d 559, 571-72 (Del. 1981).
State's Response to Defendants' Motions for Judgment of Acquittal
In its response to Dillard's and Brown's Motions for Judgment of Acquittal, the State asserts that the evidence against Dillard and Brown was sufficient, and not limited to out-of-court statements by Clark. The State contends that Clark's statements were appropriately presented to the jury. The State argues that contrary to the claims of Dillard and Brown, there was much evidence, apart from Joanne Brown's out-of-court statement, in support of Clark's statement.
The State asserts that both Clark and Joanne Brown were "turncoat witnesses" as contemplated by 11 Del. C. § 3507. Both witnesses told one version of events outside the courtroom, and another in court.
See Flonnory v. State, 893 A.2d 507, 518 (Del. 2006).
Both Dillard and Brown were given ample opportunity to examine the witnesses as to their original statements and their in-court testimony. Both defendants made arguments challenging the witnesses' credibility, including questioning drug use, lack of recall, motive and bias.
The State argues that Dillard and Brown ignore the evidence corroborating Clark's out-of-court statement. This evidence includes the statement of the victim, Steven Cleveland, as related by Officer Gerald Connor; the testimony of Dion Gibbs; the testimony of Detective DiClemente; and Dillard's own testimony.
The State asserts that the ballistic evidence presented at trial, including the clothing of Steven Cleveland and Dion Gibbs found at the scene of the crime, is consistent with Clark's out-of-court statement. Joanne Brown's statement, although not identical to Clark's, is consistent with Clark's version of events.
Dillard corroborates Clark's testimony and Joanne Brown's Section 3507 statement regarding the fact that Clark and Brown knew Dillard and were familiar with his nickname "Breeze." Dillard testified that he would know Clark and Joanne Brown by sight, and that he owned a black ROCA jacket with green letters, consistent with the description of the clothing that Joanne Brown gave the police when she told them that she recognized Dillard fleeing from the crime scene.
The State asserts that although Dillard testified that he was not present at the time of the shooting, the jury evaluated his credibility, including his motive to testify, and rejected his testimony, as well as the testimony of his alibi witnesses. The State argues that it has no obligation to rebut an alibi. The credibility of an alibi witness, just like the testimony of any other witness, is a determination for the jury to make.
In sum, the State asserts that Clark's statement to the police — her eyewitness account of the shooting and identification of Dillard and Brown as perpetrators — combined with the reasonable inference that she was a turncoat witness who did not want to be a "snitch" and had fear for her safety, are sufficient for the State to satisfy its burden under a Rule 29 challenge to a verdict.
Standard of Review
As the Supreme Court of Delaware held in Bordley v. State:
In determining a motion for judgment of acquittal, the trial judge must consider the evidence and all legitimate inferences to be drawn therefrom, in a light most favorable to the State. Acquittal is appropriate only when the State has presented insufficient evidence to sustain a guilty verdict. The Court is not required to ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt. It must merely inquire as to whether any rational trier of fact could have found that guilt was established.
667 A.2d 1318, 1318 (Del. 1995).
See Conyers v. State, 396 A.2d 157, 159-60 (Del. 1987); Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982) ; Edwards v. State, 285 A.2d 805, 806 (Del. 1971).
Conyers, 396 A.2d at 160.
Skinner v. State, 575 A.2d 1108, 1121 (Del. 1990); see Super. Ct. Crim. R. 29(a).
Analysis
Dillard's and Brown's arguments focus on the testimony of Clark. Both defendants claim that Clark's testimony was neither credible nor corroborated. Without Clark's testimony, argue the defendants, there is insufficient evidence to convict either Dillard or Brown.After presiding at trial and reviewing the record, the Court finds that Clark's out-of-court statements were corroborated. The corroborative evidence includes the physical evidence found at the scene of the crime, including the ballistics evidence; the statements of Steven Cleveland to Cpl. Connor; the testimony of Dion Gibbs; and certain portions of Dillard's own testimony, particularly on the issue of identification.
The jury determines credibility issues. Clearly, the jury believed Clark's Section 3507 video-taped statement. In contrast, although Dillard testified that he was not present at the time of the shooting, the jury evaluated his credibility, including his motive to testify, and rejected his testimony, as well as the testimony of his alibi witnesses.
Nelson v. State, 2001 WL 458264, at *3 (Del. 2001).
Both Dillard and Brown requested judgments of acquittal at the close of the State's case pursuant to Superior Court Criminal Rule 29. Those motions were denied by the Court. Nothing has changed since that ruling. The Court concludes that taking the evidence in the light most favorable to the State, a rational trier of fact could find that there was sufficient evidence to convict Dillard and Brown. The renewed motions are denied.
BROWN'S MOTION FOR NEW TRIAL
Brown argues that he is entitled to a new trial on the basis of: (i) prosecutorial misconduct; and (ii) failure of the Court to provide the jury with an alibi instruction. Brown also argues that because the jury acquitted Brown on all of the weapon charges, the guilty verdicts in charges that stem from the weapon charges should be vacated and a judgment of acquittal entered.
Brown contends that the State made improper prosecutorial comments in an effort to boost the credibility of one of the three inconsistent statements made by Clark. By her own admission, Clark was a crack-cocaine addict. Brown asserts that an objection by defense counsel during the State's closing argument, and request for a jury instruction at that point, only would have exacerbated the problem.
Strategically, such an objection would have been imprudent. Additionally, the only remedy would have been a mistrial. This motion seeks the same relief.
Brown argues that the prosecutor's comments regarding Brown's family were intentional. Prejudice was created by the fact that the defendants' families were not permitted to sit in the front two rows during most of the trial, adding to the appearance that the family was in fact dangerous and threatening. Brown contends that a new trial is warranted because "in the context of the entire trial, the comments were of such a prejudicial nature, that they affected substantive rights."
See Anderson v. State, 1987 WL 44963, at *1 (Del. 1987).
Brown asserts that he was prejudiced when the Court denied his request to give an alibi instruction to the jury. "[T] he jury must not be left free to assume that the defendant bears the burden of providing alibi. There must be an explanation of the context within which evidence of alibi must be evaluated." Brown asserts that a new trial is warranted because Brown presented an alibi, and that is sufficient evidence to justify an instruction on alibi.
Jackson v. State, 374 A.2d 1, 2 (Del. 1977).
Finally, Brown contends that the jury's acquittal of Brown on all of the weapon charges requires that the guilty verdicts in the felony murder charge, and the two robbery first degree charges, be vacated and a judgment of acquittal entered. Further, the conspiracy second degree charge also must be vacated and a judgment of acquittal entered.
State's Response to Brown's Motion for a New Trial
The State contends that in a motion for a new trial, the grounds for a new trial must have been asserted during the trial to preserve those issues for a Rule 33 motion. Brown asserts prosecutorial misconduct regarding the statements of the prosecutor in closing argument. This argument was not raised by Brown's counsel during the trial and, therefore, is not appropriate for consideration in a Rule 33 motion. Brown `s explanation as to his failure to object is that he did not want to bring a "heightened awareness to the issue."
The State argues that the comments made by the prosecutor were appropriate. During her out-of-court statement, Clark stated that she would not testify at trial because she "had to live in that neighborhood." She testified that she did not want to be a "snitch." Although during trial Clark denied being afraid to testify, the State argues that her recantation of her earlier statements is understandable. Given the nature of the crime, combined with the fact that Clark lived in the very neighborhood where the crime occurred, Clark's earlier statements clearly put her at risk. Detective DiClemente testified that the neighborhood is a violent neighborhood where people will not cooperate with the police. Thus, the prosecutor did not offer the comments to bolster the credibility of Clark, but to explain the contradiction between her court testimony and her out-of-court statements to the police.
The State argues that the Court's decision to deny Brown's request for an alibi instruction was not improper. Upon receipt of Brown's request, the Court ruled that the alibi instruction would be an improper comment to the jury on evidence. The State contends that an alibi instruction was not required because the jury instructions included the substantive content of the requested alibi instruction. Therefore, a specific alibi instruction would have been duplicative. The State asserts that Brown has failed to identify any prejudicial effect caused by the omission of the instruction, given the content of the jury instructions as a whole. Unlike affirmative defenses, an alibi instruction does not shift the burden of proof in any way. The State retains the same burden of proof. The requested alibi instruction specifically singles out evidence by a defendant and tells the jury that if that evidence raises a reasonable doubt as to guilt, they must find the defendant not guilty. The evidence of alibi is no different than all other evidence defendants relied upon in arguing that the State did not meet its burden of proof.
The State points out that jurors are presumed to follow the instructions provided by the Court. The jury was instructed: "You, the jury, are the sole and exclusive judges of the facts of the case; of the credibility of the witnesses; and of the weight and value of their testimony." The instructions make no distinction between the evidence of the State or defendants, but refer to all of the evidence presented. The jury was instructed: "The burden of proof is upon the State to prove all the facts necessary to establish each and every element of the crime charged beyond a reasonable doubt . . . If you think there is a real possibility, or in other words, a reasonable doubt, that the defendant is not guilty, you must give the defendant the benefit of the doubt by finding the defendant not guilty."
State asserts that the remaining arguments of Brown are without merit. Brown's conviction of manslaughter, instead of Murder First Degree, is consistent with 11 Del. C. § 274 . The ac quittal of Brown on firearms offenses is consistent with the arguments of the State — that Brown was an accomplice to two other armed defendants, one of whom shot Steven Cleveland.
Standard of Review
The Court may grant a new trial if required in the interest of justice. A motion other than one made during a trial or hearing shall state the grounds upon which it is made and shall set forth the relief or order sought and may be supported by affidavit.
Super. Ct. Crim. R. 33.
Super. Ct. Crim. R. 47.
The moving party must make timely objections at trial. In State v. Halko, the Court ruled that counsel must preserve alleged errors committed by the Court, in order to assert such matters as grounds for a new trial. Defendants cannot gamble on their chances for a favorable verdict and, if disappointed, then seek to use the unasserted alleged error as grounds to obtain another trial.
193 A.2d 817 (Del.Super. 1963), aff'd, 820 A.2d 372 (Del. 1964).
Id. at 830.
A jury verdict will be set aside when, in the judgment of the trial judge, the verdict "is at least against the great weight of the evidence. In other words, barring exceptional circumstances, a trial judge should not set aside a jury verdict on such grounds unless, on a review of all the evidence, the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result." The Court should be reluctant to draw a conclusion different from the jury on a disputed question of fact when the subject matter is within the normal comprehension of a jury and the evidence in the case is not particularly complex.
Storey v. Camper, 401 A.2d 458, 465 (Del. 1979).
Id. at 466-67.
Analysis
Brown's first ground for a new trial is prosecutorial misconduct on the basis of the statements made by the prosecutor during closing argument. However, because the prosecutorial misconduct argument was not raised by Brown's counsel during trial, it is not appropriate for consideration in a Rule 33 Motion. Brown cannot wait for the verdict, and then complain about issues that could have been subject to objection during the trial.Having heard the evidence and reviewed the record, the Court finds that a new trial is not required in the interest of justice. Even if the issue of prosecutorial misconduct had been raised at trial, Clark clearly was the quintessential "turncoat" witness. Brown's assertion that the State made improper comments in an effort to boost Clark's credibility are without merit. The prosecutor offered the relevant comments to explain the contradiction between her court testimony and her out-of-court statements to the police.
Super. Ct. Crim. R. 33.
Additionally, Brown argues that prohibiting defendants' families from sitting in the front two rows during most of the trial was prejudicial by making the family members appear to be dangerous and threatening. This theory is purely speculative.
Again, this was not brought to the attention of the Court during the trial when the Court could have cured any hypothetical problem. Control of the security of the courtroom spectators clearly is a serious matter, wholly within the discretion of the presiding judge.
Immediately following the reading of the verdicts, the Judge left the courtroom and a melee ensued. One of the defendants allegedly assaulted a corrections officer. Certain of defendants' family members allegedly attempted to cross the bar enclosing the spectators' section, in order to join the altercation. The space between defendants and their families during trial specifically was ordered by the Court to avoid just such an event.
Defendants allege prosecutorial misconduct on the basis of comments made by the State during closing argument. The prosecutor argued that Clark's in-court testimony was inconsistent with her out-of-court statement because Clark was intimidated. The prosecutor motioned to the spectators and stated that Clark was in the courtroom with family members seated behind Defendants. The presence of Defendants' family members was irrelevant and not part of the trial record. The State conceded that facts not in evidence should not have been mentioned during closing argument. However, the State contends that such references are not reversible error.
The Court finds that Defendants' rights were not substantially prejudiced by the State's references. Clearly, the fact that family members were in the gallery is not evidence and should not have been the subject of comment before the jury.
Nevertheless, this objection was not raised during trial. Defendants claim that such an objection would have been unwise because a curative instruction would have exacerbated the issue. The Court disagrees. An objection could have been made outside the presence of the jury and a proper curative instruction crafted.
Additionally, there was other considerable evidence in the trial record concerning Clark's reluctance to testify. Law enforcement witnesses testified that people in the neighborhood were afraid to cooperate with police out of fear of reprisal. Clark, herself, stated that because she had to live in the neighborhood, she did not want to be a "snitch" and identify the perpetrators. The jury had the opportunity to assess Clark's demeanor and make an independent determination as to whether Clark was intimidated as she testified in the courtroom. The Court concludes that the improper comments of the prosecutor during closing argument do not jeopardize the substantial rights of Defendants and, therefore, are not plain error.
Brown's contention that the Court should have given the alibi instruction also is without merit. The Court ruled that the alibi instruction was an improper comment to the jury on specific evidence. The Court instructed the jury on reasonable doubt and did not shift the burden of proof to Brown. The State retains the same burden of proof. The requested alibi instruction specifically singles out evidence by a defendant and tells the jury that if that evidence raises a reasonable doubt as to guilt, they must find the defendant not guilty. The evidence of alibi is no different than all other evidence defendants relied upon in arguing that the State did not meet its burden of proof. Contrary to Brown's contention, no prejudicial error resulted from the denial of Brown's request for alibi instruction. In order to successfully assert prejudice, Brown must show that a new trial reasonably could be expected to result in a different verdict and judgment. The Court is satisfied that, given the content of the jury instructions as a whole, there was no prejudice to Brown.
Zimmerman v. State, 1991 WL 190298, at *2 (Del.Super. 1991)( citing State v. Conyers, 413 A.2d 1264, 1267 (Del.Super. 1979), aff'd, 422 A.2d 345 (Del. 1980).
Brown's final argument is that because the jury acquitted Brown of all of the weapon charges, the guilty verdicts in charges that stem from the weapon charges should be vacated and a judgment of acquittal entered.
Section 274 of title 11 of the Delaware Code provides:
When, pursuant to § 271 of this title, 2 or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of an offense of such degree as is compatible with that person's own culpable mental state and with that person's own accountability for an aggravating fact or circumstance.
The jury's acquittal of Brown on weapon charges is consistent with Brown's convictions on other charges. The jury found that Brown participated as an accomplice with two other armed defendants, one of whom shot Steven Cleveland.
The Court is satisfied that there was sufficient evidence supporting Brown's convictions on the more serious charges and that the acquittals on the less serious charges are explainable as a matter of jury lenity. The Court finds that the verdict was not against the weight of the evidence. There was evidence for each crime from which a jury could find Brown guilty as charged.
Bodnari v. State, 2003 WL 22880372, at *2 (Del.Supr. 2003)( citing Tilden v. State, 513 A.2d 1302, 1307 (Del. 1986).
CONCLUSION THEREFORE, Defendants Bakr Dillard's and Anderson Brown's Motions for Judgment of Acquittal are hereby DENIED.
Defendant Anderson Brown's Motion for a New Trial is hereby DENIED.
IT IS SO ORDERED.