Opinion
No. 343, 2000
Submitted: January 23, 2002
Decided: April 22, 2002
Court Below: Superior Court of the State of Delaware in and for New Castle County, ID No. 9903023368
Reversed and Remanded.
Unpublished Opinion is below.
JAMES CHRISTOPHER DEANGELO, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 343, 2000 In the Supreme Court of the State of Delaware. Submitted: January 23, 2002 Decided: April 22, 2002
Before VEASEY, Chief Justice, HOLLAND and BERGER, Justices.
CAROLYN BERGER, Justice.
ORDER
This 22nd day of April, on consideration of the briefs of the parties, it appears to the Court that:
1) James Christopher DeAngelo appeals from his conviction, following a jury trial, of second degree murder and possession of a deadly weapon during the commission of a felony (PDWDCF). He argues that the trial court erred in: (i) refusing to grant a mistrial based on purported Brady violations; (ii) refusing to grant a mistrial based on alleged prosecutorial misconduct; and (iii) admitting certain evidence, including evidence of prior bad acts. In addition, DeAngelo argues that his PDWDCF conviction should be dismissed because he was not prosecuted within five years after the crime was committed.
2) On October 2, 1990, DeAngelo was renovating his home when his friend, William Perez, stopped by, apparently to collect a debt. DeAngelo's wife, Peggy Mitchell, and another friend, Bobby Williams, were present when Perez arrived. DeAngelo invited Perez to follow him up a ladder to the loft. Moments later, Mitchell and Williams heard gunshots and Perez fell to the bottom of the ladder. Perez had a gunshot in his head and was bleeding profusely. After DeAngelo removed money from Perez's pockets, DeAngelo and Williams moved the body to the bathtub.
3) John McGettigan, another friend, arrived shortly after the shooting. DeAngelo asked to borrow McGettigan's pickup truck to get some decking materials. DeAngelo and Williams placed a bundle wrapped in a blue tarp into the back of the pickup truck and drove to a farm in West Chester, Pennsylvania. During the ride, DeAngelo told Williams that his dispute with Perez was over approximately $800 that DeAngelo owed Perez for drugs. Williams did not see DeAngelo dispose of the body, but Mitchell testified that DeAngelo told her that he chopped up the body and burned the remains.
4) Not long after this incident, two witnesses saw DeAngelo give five $100 bills to a friend at a bar. One of the bills had the number 1000 written on it, and one of the witnesses testified that, because of the handwritten number, she recognized the bill as being the same one she had given to Perez a week earlier.
5) Perez's wife reported him missing several days after he disappeared, and the police began an investigation. The police questioned DeAngelo, but did not file any charges against him. In 1993, a private investigator hired by Perez's wife brought a confidential informant in to speak to Detective William Browne. The confidential informant told Browne that she and several others had seen Perez recently. Browne took down the names of the potential witnesses and tried to contact them. All the witnesses that Browne was able to locate denied having seen Perez.
6) DeAngelo was arrested in March 1999, after the police obtained statements from Mitchell and Williams about their involvement in disposing of Perez's body and cleaning up the crime scene. Although he was charged with first degree murder, the jury found him guilty of second degree murder and PDWDCF. The trial court sentenced DeAngelo to 15 years incarceration for each crime.
7) DeAngelo first argues that the State withheld exculpatory evidence that it was required to produce, as a matter of due process, under Brady v. Maryland. He says that his defense was crippled by the State's failure to produce: (i) reports generated in 1990, when the police first questioned DeAngelo and searched his house; and (ii) the name of the confidential informant who claimed to have seen Perez in 1993.
373 U.S. 83 (1963).
8) In considering alleged Brady violations, the trial court goes through a two-step analysis. First, the court must decide whether the non-disclosures involve evidence that is, in fact, favorable to the defendant. If so, the court must decide whether the Brady evidence is material to the defendant's guilt or punishment. The standard for materiality is whether there is a reasonable probability that the undisclosed evidence would affect the outcome of the trial.
Lilly v. State, 649 A.2d 1055, 1057 (Del. 1994), citing U.S. v. Bagley, 473 U.S. 667, 674 (1985).
9) After carefully reviewing the record, we conclude that the trial court was correct in finding that no Brady material was withheld from DeAngelo. With respect to DeAngelo's 1990 interrogation by the police, the record establishes that there were no notes or other reports in the file at the time of trial. David Glose, the officer who interviewed DeAngelo in 1990, no longer was on the police force. But Detective Jubb, who discussed the matter with Glose, explained that DeAngelo had requested counsel at the time of his 1990 interview and, therefore, never gave a statement about the Perez disappearance. With respect to the 1993 Perez "sightings," the record establishes that the police never knew the identity of the confidential informant who claimed to have seen Perez in 1993. The State, therefore, had no name to disclose to DeAngelo.
10) In short, there were no Brady violations because the State did not have the information that DeAngelo contends the State withheld. Moreover, there is no reasonable probability that the alleged Brady evidence would have affected the outcome of the trial. DeAngelo wanted to use the purported 1990 police reports to show that the police lacked evidence connecting DeAngelo to the crime. But that was established by the fact that DeAngelo was not arrested until nine years after the killing. Thus, the 1990 police reports, if they ever existed, would have added little to the mix of information available to the jury. The "sightings" evidence, likewise, had limited value since the witnesses identified by the confidential informant denied having seen Perez in 1993.
11) DeAngelo alternatively argues that the court should have instructed the jury to infer that the "missing evidence" would have been exculpatory. We disagree. As mentioned above, the 1990 police reports and the identity of the confidential informant were not material and, therefore, did not justify a "missing evidence" instruction.
Lolly v. State, 611 A.2d 956, 961 (Del. 1992).
12) DeAngelo next contends that the State's alleged misconduct warrants a new trial. The first alleged instance of misconduct occurred when the State asked Mitchell when she last saw DeAngelo. She answered that she saw him about a year and a half before trial, in Philadelphia, when he was going to his methadone program. DeAngelo belatedly objected to the reference to methadone. The trial court found that the State had not intentionally sought to elicit evidence of DeAngelo's involvement with drugs and the court offered to give the jury a curative instruction. DeAngelo declined the offer.
13) The second instance of misconduct, according to DeAngelo, arose when the State improperly attempted to introduce hearsay testimony from a police detective about whether the FBI had been able to test a piece of wood for the presence of bleach. Since Mitchell testified that she used bleach to clean Perez's blood from the floor of DeAngelo's house, the absence of any report showing bleach on the wood sample would tend to discredit Mitchell. The State, therefore, wanted to establish that the FBI was unable to test the wood for bleach. The trial court sustained DeAngelo's objections to a series of questions addressed to the detective, and it admonished the jury to disregard the line of questioning. The State later established the same facts it attempted to elicit from the detective by calling the FBI agent who determined that the wood could not be tested for bleach.
14) DeAngelo contends that the State again acted improperly when, during closing argument, it attempted to discredit DeAngelo's testimony that the floor in his house was bare wood in 1990. The State held up a piece of wood taken from the floor in 1999 an effort to demonstrate that the floor had been painted. There was no evidence, however, as to when it had been painted. As a result, the State had no evidentiary basis on which to suggest that DeAngelo was lying when he said the floor was bare wood in 1990. DeAngelo started to object to the State's closing, but he withdrew the objection for tactical reasons.
15) Finally, DeAngelo contends that the State acted improperly by recalling Detective Cunningham several times to bolster the credibility of the State's witnesses. For example, the State asked Cunningham whether Williams had told him various details about the crime and the crime scene when Cunningham interviewed Williams. Cunningham testified that Williams told him all the details during the interview, although Cunningham's report of the interview did not contain any of those details.
16) We find that the trial court acted within its discretion in refusing to grant a mistrial for the several instances of alleged prosecutorial misconduct. Two of the instances DeAngelo complains about did not involve any misconduct or prejudice. The methadone comment was not intentionally elicited and was not particularly prejudicial because it related to a time eight years after the murder. The State's questioning of Cunningham was not improper, either, because Cunningham did not opine as to the witnesses' credibility. Cunningham merely testified that the witnesses told him the same details when he interviewed them as they did on the witness stand.
Hughes v. State, 437 A.2d 559, 578 (Del. 1981).
See: Graves v. State, 1994 WL 416533 (Del.Supr.) (It is improper to bolster another witness's testimony by vouching for witness's credibility.)
17) The attempt to solicit hearsay testimony about bleach in the wood, although inappropriate after the initial objection had been sustained, was not prejudicial. The original witness did not answer any of the objectionable questions and the State then called the proper witness to testify on the same subject. Finally, the closing comment about the painted floor, if improper, was not particularly significant and did not rise to the level of plain error.
DeAngelo withdrew his objection to the prosecutor's comment. Therefore, the comment would warrant reversal only if it amounted to error "so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process." Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
18) DeAngelo also complains that the trial court erred in admitting: (i) evidence about the marked $100 bills; (ii) evidence about DeAngelo's uncharged criminal conduct; and (iii) a letter DeAngelo wrote while incarcerated. We find no merit to any of these claims.
19) The link between Perez, DeAngelo, and the $100 bills was established by Cheryl Kearns, a cook at a bar down the street from DeAngelo's house. Kearns testified that about two days before Perez disappeared, she and her fiancé paid Perez for cocaine with five $100 bills. One of those bills had the number 1000 written across the corner. A few days after Perez disappeared, Kearns again saw those bills when the main cook, whose nickname was "Mom," showed Kearns the money and explained that DeAngelo had given it to her to hold in case he needed bail money. By the time of trial, Mom had died and the money had disappeared. But the bar owner testified that he was present when DeAngelo came in and gave Mom the money.
20) DeAngelo argues that it was an abuse of discretion to allow testimony about the $100 bills because the bills are missing and two critical witnesses, Mom and Kearns' fiancé, are dead. At the time of the original police investigation, it was Kearns' fiancé who identified the bills as being the same ones they had given Perez. DeAngelo argues that is "too convenient" that the currently available witnesses now remember the necessary details about the markings on the money and DeAngelo's comments. We find no abuse of discretion. In essence, DeAngelo is complaining about the witnesses' lack of credibility, but that was for the jury to decide. The testimony was properly admitted.
Tyre v. State, 412 A.2d 326 (1980).
21) DeAngelo next argues that the evidence of his drug debt to Perez and his theft of Perez's money after the shooting should have been excluded under Getz because it was not "plain, clear and conclusive." The drug debt was established by Mitchell's account of Perez coming to DeAngelo's house twice, looking for his money; and the theft was established by Williams' eyewitness account of DeAngelo taking money from Perez's body.
Getz. v. State, 538 A.2d 726 (Del. 1988).
Id. at 734, quoting Renzi v. State, 320 A.2d 711, 712 (Del. 1974).
22) It is settled law that an eyewitness's testimony constitutes clear and convincing evidence for purposes of the Getz analysis. Mitchell's testimony about the drug debt, however, was not entirely based on events she witnessed. She heard Perez demand money that DeAngelo owed him, but Mitchell never saw Perez give DeAngelo the cocaine that gave rise to the debt. Thus, Mitchell's testimony about the drug transaction may not have met the Getz standard. We need not decide this issue, however, since Williams testified that DeAngelo admitted killing Perez over a drug debt and DeAngelo testified that he was a cocaine dealer. Thus, the jury learned about DeAngelo's drug dealing from other sources and the admission of Mitchell's testimony, if erroneous, was harmless beyond a reasonable doubt.
Diaz v. State, 508 A.2d 861, 865 (1986).
23) DeAngelo next argues that the trial court erred in denying his motion to suppress a document that was available to DeAngelo through discovery and was admitted at trial without objection. During the second week of trial, after the document had been admitted, DeAngelo told his counsel that the document was obtained by the police when he was moved from a prison cell in Pennsylvania to Delaware. DeAngelo moved to suppress the document because the police did not have a search warrant when they copied it and the other documents in DeAngelo's cell.
24) DeAngelo never explains what was in the document; whether the jury ever saw the document; whether the trial court ever ruled on its admissibility; or how the document impacted his case. Accordingly, we have no basis on which to consider his claim and we reject it summarily.
25) Finally, we consider an argument raised after briefing had been completed on appeal. DeAngelo belatedly brought our attention to the fact that he was prosecuted and convicted of PDWDCF more than five years after the crime was committed. The State agrees, as it must, that DeAngelo's prosecution was time barred pursuant to 11 Del. C. § 205(b)(1). The only issue is whether this case should be remanded to the Superior Court for resentencing. In White v. State, this Court held that, "[a]fter a related sentence has been vacated on appeal, a trial judge may resentence a defendant up to the combined duration of the original sentences without violating the constitutional prohibition against double jeopardy." We conclude that White controls the result here, even though DeAngelo has attacked the conviction itself and not just the sentence that was imposed. DeAngelo's "related sentence" is being vacated on appeal.
576 A.2d 1322 (Del. 1990).
Id. at 1328.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED with respect to the conviction of second degree murder and REVERSED with respect to the conviction of possession of a deadly weapon during the commission of a felony. This matter is REMANDED to the Superior Court for resentencing on the murder conviction.