Opinion
ID No. 0603009059.
Submitted: March 22, 2007.
Decided: March 30, 2007.
On Defendant's Motion for Judgment of Acquittal.
DENIED.
John A. Barber, Esquire, Department of Justice, Carvel State Office Building, Wilmington, Delaware.
Peter N. Letang, Esquire, Wilmington, Delaware.
Dear Counsel:
Before the Court is Defendant's Motion for Judgment of Acquittal. Because the Court finds there was sufficient evidence to sustain his conviction, Defendant's motion is DENIED.
Defendant was indicted for Attempted Murder First Degree, Possession of a Firearm During the Commission of a Felony, and Possession of a Deadly Weapon by a Person Prohibited. Pursuant to 11 Del. C. § 3507, the State introduced at trial the victim's two prior statements, in which he identified Defendant as the person who shot him. A videotape of the second identification, which was played for the jury (but not furnished to the jury during its deliberation), also showed the victim making it clear to the chief investigating officer that he would not cooperate or testify in the event of a trial. When the victim testified in court, he did in fact recant his prior statements. He did not deny making the two prior statements, but rather alleged that he was not telling the truth at that time when he identified Defendant as the shooter.
Defendant presented two alibi witnesses, his mother and his sister. Both testified that Defendant was with his sister at the time of the shooting. Defendant also showed a videotape of a statement the victim's brother made to the police. The victim's brother testified that he was present at the shooting, but stated that the photographic line-up, which included a picture of Defendant, did not contain a picture of the shooter. He also stated that he would not testify in the event of a trial.
On March 2, 2007, the jury returned a verdict of guilty on the lesser-included offense of Assault First Degree and on both weapons charges. On March 13, Defendant filed a motion for judgment of acquittal pursuant to Superior Court Criminal Rule 29.
When deciding a motion for judgment of acquittal, the Court must view the evidence and all legitimate inferences drawn from the evidence in the light most favorable to the State. Only if the evidence was insufficient to sustain a conviction for the offense charged should the motion be granted.
Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982); State v. Biter, 119 A.2d 894, 898 (Del.Super. 1955).
Id.
The evidence presented a trial showed that the victim twice identified Defendant to the police as the shooter. The jury could have found that the victim's in-court statement was not credible because he had previously stated that he would not cooperate at trial, because he was beginning a five and a half year sentence in federal prison for dealing heroin, or because he feared retaliation by Defendant. Therefore, jury could have reasonably concluded from the evidence that the victim's two out-of-court statements were more credible than his in-court statement.
Likewise, the jury could have discredited the testimony of the Defendant's sister and mother. As family members, both witnesses were potentially biased. Furthermore, both witnesses were present during the trial and could have fashioned their testimony around the evidence the State presented. In addition, the jury could have found that the victim's brother's statement was not credible because he had told the police that he would not cooperate at trial.
Therefore, after viewing all the evidence in the light most favorable to the State, the Court finds that there was sufficient evidence to convict Defendant on each of the three offenses. As a result, Defendant's motion for judgment of acquittal is DENIED. Sentencing will take place on May 25, 2007 at 9:30 a.m.
IT IS SO ORDERED.