Opinion
Def. ID# 02080015610.
DATE SUBMITTED: June 30, 2003.
DATE DECIDED: September 30, 2003.
Cr. A. No. 03-03-0145
Kim Ayvazian, Esquire, Department of Justice, 114 E. Market Street, Georgetown, DE 19947
Eric G. Mooney, Esquire, 11 S. Race Street, Georgetown, DE 19947
MEMORANDUM OPINION
Pending before the Court is an appeal which the State of Delaware ("the State") has filed from a decision of the Family Court remanding the case to a Family Court Commissioner and ordering that further proceedings take place because of a Brady violation. Two issues on appeal exist: first, whether the State has the right to appeal this decision and second, whether the Family Court erred in its decision.
Brady v. Maryland, 373 U.S. 83 (1963).
FACTS
The record in this case shows the following.
In June, 2002, Joseph A. Zellmer ("defendant") was charged with trespassing with intent to peep in violation of 11 Del. C. § 820. The alleged victim was Linda Zellmer ("Ms. Zellmer" or "the victim"), defendant's estranged wife. A bond condition imposed was that defendant have no contact with Ms. Zellmer. In August, 2002, defendant was charged with breach of release in violation of 11 Del. C. § 2113 after Ms. Zelimer complained to the Seaford Police Department that defendant had violated the no contact order by walking around a building she was about to enter and saying "another place, another time".
The trial on the two charges was held before a Family Court Commissioner on September 27, 2002.
At that trial, two witnesses testified with regard to the charge of trespassing with intent to peep. The victim testified as follows on behalf of the State. On June 27, 2002, she saw defendant peeping into the skylight of the bedroom of the trailer in which she was staying. She called the police, defendant was arrested, and a no contact order was issued. The defense called only one witness, Ward Melson, who owns the trailer park where the alleged trespass occurred. Mr. Melson, who also happens to be the victim's father, testified that defendant had permission to be on the property and to go into the trailer or live in the trailer.
The only testimony regarding the charge of non-compliance with the bond came from the victim. She testified as follows. The no contact order was in effect on August 20, 2002. On that date, the victim had gone to the Auto Zone in Seaford, Delaware. She was walking across the parking lot and defendant came around the right side of the building, looked at her, said, "Another place another time", and left. The victim went into the store and then came back out. When she came back out, she saw the defendant's van leaving the parking lot.
The defense sought to attack the victim's credibility and question her motives in bringing charges against defendant. Defense counsel sought to impeach the victim by cross-examining her on some inconsistencies in her testimony. During a recross-examination, the following colloquy occurred:
Mr. Mooney: Alright. When you walked back out of the Auto zone [sic] after you went in, did you have anybody accompany you?
Ms. Zellmer: Yeah. My boyfriend.
Mr. Mooney: Okay. So you were with your boyfriend?
Ms. Zellmer: Uh huh.
Mr. Mooney: Who is your boyfriend?
Ms. Zellmer: Gene Wiser.
Mr. Mooney: And did Gene Wiser hear this?
Ms. Zellmer: Did he hear that? I don't think he heard it. He was at the, he was going in the door.
Mr. Mooney: Okay. Okay. So you two were walking into the Auto Zone together?
Ms. Zellmer: No. He was walking from this side of the building, because I had just been on the side, and he told me to pull forward. He wanted to see where the noise was coming from from my car, and he says, go ahead park the car and we'll go inside. So I parked the car, he started walking across and was going in when I started crossing the parking lot to come into the store.
Mr. Mooney: Okay. So he was in front of you?
Ms. Zellmer: Yes.
Mr. Mooney: How far in front of you?
Ms. Zellmer: He was going into the door, when I was halfway, you know, before I got halfway, or right around the halfway point.
Mr. Money: Halfway point where?
Ms. Zellmer: In the parking lot.
Mr. Mooney: Okay. So at the moment that you saw Mr. Zellmer and he said this, your boyfriend was at the door?
Ms. Zellmer: He was at the door.
Mr. Mooney: Okay. And the door is much closer to the south side of the building than half way across the parking lot.
Ms. Zellmer: Right. He was going in the door. Right.
Mr. Mooney: Right. And your boyfriend didn't hear Mr. Zellmer say that.
Ms. Zellmer: I don't know if he heard it. He didn't say anything. I just told him I had heard it. He looked right at me.
Mr. Mooney: Well, he's been your boyfriend after this, isn't he?
Ms. Zellmer: Yes.
Mr. Mooney: Are you still seeing him?
Ms. Zellmer: Yes.
Mr. Mooney: Okay. Have you guys ever talked about this? Boy, did you hear Joe Zellmer say that to me? Didn't that sound threatening?
Ms. Zellmer: I told him what he said to me.
Mr. Mooney: Okay. And he never told you he heard it, did he?
Ms. Zellmer: I don't think so. No.
Mr. Mooney: And you never told the police about your boyfriend being with you when this happened?
Ms. Zellmer: No. Because he was saying it to me, not him.
Mr. Mooney: I have nothing further Your Honor.
During closing arguments, defense counsel uses this information which first came to light during the trial in an effort to discredit Ms. Zellmer. He argues:
She actually tells four different stories. * * * * So, in response to my questioning of well, you were scared, didn't you say that to the police? Well, it doesn't say that in the police report. If she was scared, why would she come walking back out. And I was getting ready to go into that line of questioning, and I said, were you accompanied by anybody? And a light bulb goes off in her head. Yeah, I was with my boyfriend. He came out with me because I was scared. She didn't mention that to the police and the biggest thing, Your Honor, the boyfriend, apparently is waling [sic] in front of her. He is out the door when she is halfway across the parking lot. And Mr. Zellmer is supposedly on the side of the building. When he says this, another time, another place in a threatening manner, the boyfriend doesn't hear it. And she conveniently forgets or doesn't mention that there could have been a witness to this. Albeit, not independent, but there could have been a witness to this, where a police officer could have contacted this witness, and say, hey, did you see Joe Zellmer? You were there. Did you see the van driving away? Did you hear him say anything? She doesn't say that. And puts, puts it in a position where the police now can't try to corroborate her story, because she doesn't say, she says, well, I didn't think it was important to tell.
The Commissioner found defendant not guilty of the charge of trespass with intent to peep because the owner of the trailer park testified he had given the defendant permission to be there. However, with regard to the crime of non-compliance with a bond, she found defendant guilty because she found Ms. Zellmer to be credible and because she found there to be no contrary evidence otherwise.
Defendant thereafter sought review from the Family Court of the Commissioner's order on several grounds. The only ground pertinent to this appeal is that "the existence of Mr. Wiser as a potential witness was not disclosed to him or the police prior to trial, thus preventing effective cross-examination of an eyewitness to the alleged events leading to Petitioner's conviction." Zellmer v. State, Fam. Ct., Def. ID# 0208015610, Henricksen, J. (January 3, 2003) at 2. The Court held as follows:
With regard to Petitioner's claim that the prosecution failed to disclose the existence of Mr. Wiser, as an eyewitness to the events leading to his conviction, the Court finds that the prosecution violated Brady. As the Delaware Supreme Court stated in Jackson, effective cross-examination is "the principal means by which the believability of a witness and the truth of his testimony is tested. . . . Jurors should have every opportunity to hear impeachment evidence that may undermine a witness' credibility." Jackson v. State, 770 A.2d 506, 516 (Del. 2000). In the instant case, the credibility of Ms. Zellmer as a witness was a significant issue. As the earlier quoted portion of the Commissioner's statement indicates, her decision to enter a finding of guilty against Petitioner was based primarily on her belief that Ms. Zellmer's testimony was credible. Thus, the non-disclosure of Mr. Wiser as an eyewitness to the events leading to Petitioner's conviction was a material error on the part of the prosecution so as to jeopardize Petitioner's right to a fair trial. Specifically, Mr. Wiser's testimony could have been used to contradict Ms. Zelliner's testimony that he was too far away from her to hear the threatening words Petitioner allegedly directed towards her. Further, Mr. Wiser was also in a position to either support or contradict Petitioner's theory that Ms. Zelliner was providing the Commissioner with inconsistent stories as to her actions upon hearing his alleged threats. Thus, without the testimony of Mr. Wiser, the Commissioner was not able to hear potentially material impeachment evidence as to the credibility of Ms. Zellmer. Accordingly, it is the Court's determination that the prosecution violated Brady by failing to disclose the existence of Mr. Wiser as an eyewitness. Thus, the verdict entered by the Commissioner cannot be said to be one worthy of confidence. The instant proceedings are remanded to the Commissioner for further consideration consistent with this opinion. [Citations and footnote omitted.]
Id. at 3-4.
The State then appealed to this Court, citing as authority therefore the statutory provisions of 10 Del. C. § 1051(b) and 1053(a)(1)b. The State argues that the Family Court, in granting a new trial to defendant, erred by ruling that a Brady violation occurred. Defendant argues that the Family Court did not order a new trial; consequently, the appeal is of an interlocutory order and there is no right to appeal such. Defendant does not address the merits of the appeal.
In 10 Del. C. § 1051(b), it is provided:
From any order, ruling, decision or judgment of the [Family] Court in any criminal proceeding, there shall be the right of appeal in the first instance as provided by law to the Superior Court in the same county in which the case was adjudicated by the Court, with the further right of appeal as provided by law to the Supreme Court from an affirmance by the Superior Court of the order of the Court which was appealed, or from the entry of a judgment of conviction by the Superior Court upon a trial de novo on appeal to that Court.
In 10 Del. C. § 1053, it is provided:
(a) An appeal may be taken by the State from the Family Court to an appellate court in the following instances:
(1) Appeal as of right
b. Notwithstanding any section of this chapter to the contrary, the State shall have an absolute right to appeal to an appellate court from any order of the Family Court which grants an accused any of the following: a new trial. . . . [Emphasis added.]
DISCUSSION
The first issue which must be addressed is the procedural one. If this Court does not have jurisdiction of the appeal, then it cannot reach the merits of the appeal. State v. Reid, Del. Super., No. K87-11-0079A, Ridgely, R.J. (July 19, 1988)
In this case, the Family Court ruled that a Brady violation rendered the decision of the Commissioner to be unworthy of confidence. That ruling requires the granting of a new trial. Atkinson v. State, 778 A.2d 1058, 1063 (Del. 2001), cert. den., 535 U.S. 1011 (2002) (a defendant is entitled to a new trial where he shows "that the suppressed evidence "undermines [the] confidence in the outcome of the trial.'" [Footnote and citation omitted.]). Consequently, the State had the statutory right to appeal the Family Court's order pursuant to 10 Del. C. § 1051(b) and 1053(a)(1)b.
I now turn to the merits of the case.
The Court below determined there was a Brady violation. This Court looks at the matter anew. Atkinson v. State, 778 A.2d at 1061.
In Brady, the United States Supreme Court held that the State cannot suppress evidence favorable to a defendant if that evidence is material either to guilt or to punishment. If the evidence is both favorable and material, a determination must be made whether its "delayed disclosure precluded . . . effective use of the information at trial." When "a defendant is confronted with delayed disclosure of Brady material, reversal will be granted only if the defendant was denied the opportunity to use the material effectively." [Footnotes and citations omitted.]
White v. State, 816 A.2d 776, 778 (Del. 2003). Brady encompasses impeachment evidence, Atkinson v. State, 778 A.2d at 1062, "where the impeachment evidence is directly favorable to the accused, rather than simply providing a basis for investigation." Dawson v. State, 673 A.2d 1186, 1193 (Del. 1996), cert. den., 519 U.S. 844 (1996)
The error here is the conclusion there was a Brady violation. The Family Court found that Gene Wiser's testimony might be impeachment evidence. A finding of a Brady violation cannot be based on such speculation. See id. See also Stroik v. State, 671 A.2d 1335, 1340 (Del. 1996) (if it is not clear the evidence is favorable to the defense, Brady does not apply); Johnson v. State, 607 A.2d 1173 (Del. 1992) (it was established during the trial that material which had not been disclosed until the midst of trial was Brady material). In this case, there is an insufficient record for ruling that Brady was violated.
Brady also does not apply for other reasons.
The record clearly establishes that the victim first mentioned Gene Wiser's presence at the scene during the trial in this case. Information a victim has not shared with the police or prosecutor is not within the "possession" of the State. See State v. Patterson, Del. Super., Def. ID# 93K04715DI, Terry, J. (May 1, 1998) (the State includes police agencies and some other government agencies)
Defense counsel used this fact to support his argument that the victim made up stories to answer questions calling her credibility into question.
In addition, the prosecutor did not have exclusive control over this information; the defense had the opportunity to question the victim before the trial. Where the evidence is available to the defense, Brady is not violated. Crivens v. Roth, 172 F.3d 991, 996-97 (7th Cir. 1999); U.S. v. Ringwalt, 213 F. Supp.2d 499, 517 (E.D. Pa. 2002), aff'd, 2003 U.S. App. LEXIS 11626 (3d Cir. 2003); State v. Sarinske, 280 N.W.2d 725, 735 (Wis. 1979)
Based on the record as it existed at the time the victim said Gene Wiser was in the area of the crime, the only possible objection was that there had been a discovery violation. However, there had not been such. Nothing in the discovery requests defendant propounded or in the Family Court's rules of discovery required the production of the name of Gene Wiser. Liket v. State, 719 A.2d 935 (Del. 1998)
For the foregoing reasons, this Court reverses the decision of the Family Court. The matter is remanded in order for the Family Court to affirm the decision of the Commissioner.
IT IS SO ORDERED.