Opinion
Case No. 0909000858.
Submitted: July 19, 2010.
July 27, 2010.
Defendant's Motion for Relief from Prejudicial Joinder.
Defendant's Motion to Exclude.
Paula Ryan, Esquire, Martin J. Cosgrove, Jr., Esquire, Department of Justice, Georgetown, DE.
Stephanie Tsantes, Esquire, Dean Johnson, Esquire, Office of the Public Defender, Georgetown, DE.
Dear Counsel:
Pending before the Court are the motions filed by the defense on June 30, 2010, and outlined in this Court's letter of July 2, 2010. This decision addresses the Motion for Relief from Prejudicial Joinder and Motion to Exclude. These motions involve the interplay of both evidentiary rules and procedural criminal rules. Allegations to be considered include both charged conduct and uncharged conduct.
State's Allegations
The below is a nutshell of the allegations presented at the proof positive hearing.
(a) Christopher Reeves ("Reeves") and Luis Flores ("Flores") worked at the Perdue chicken plant in Georgetown on September 1, 2010.
(b) Communications by cell phone took place on September 1, 2010, between Reeves, Flores and Derrick Powell ("Powell") about plans to make a drug transaction later in the da y. The drug deal allegations are uncharged.
(c) When Reeves and Flores got off work from Perdue, Powell was waiting for them in the parking lot. Powell had a handgun.
(d) Eventually the trio wound up in the Georgetown McDonald's parking lot to meet another individual as to the drug transaction.
(e) Powell exited the car to meet the individual as to the drug transaction.
(f) Shots were fired, Powell jumped back into the car, and the car took off. Allegations or inferences support a drug deal gone bad with Powell being involved.
(g) Reeves drove the car, and he headed for the center of Georgetown.
(h) "Shots fired at McDonald's" or words to that effect were broadcast on the police radio with a description of the vehicle that left the scene.
(i) Officers Shawn Brittingham and Chad Spicer were at or near the Circle in Georgetown and observed a vehicle similar to the vehicle in the radio broadcast.
(j) The police attempted to pull the car over. The car did not stop. Reeves later told the police that Powell threatened him if he stopped. The police followed the vehicle for several blocks.
(k) Reeves abruptly stopped his vehicle so quickly that the police car sideswiped Reeves' vehicle. This was described as a minor sideswipe.
(l) In the Reeves vehicle, Reeves was in the driver's seat, Flores was in the right rear seat, and Powell was in the left rear seat.
(m) Reeves immediately bailed out of his vehicle and vaulted across the hood of the police car. His fingerprints or palm print were subsequently lifted from the hood of the police car.
(n) Officer Brittingham immediately exited his vehicle to pursue Reeves. Officer Brittingham was the driver so he exited the driver's side of the police vehicle.
(o) The vehicles were side by side with the Reeves vehicle ahead of the police vehicle. This aligned Officer Spicer, who was in the front passenger seat, closer to the Reeves vehicle's rear seat door.
(p) Flores reported that Powell fired the handgun at the police car one time. Powell fled.
(q) At this time Officer Brittingham was still trying to chase down Reeves and Powell was gone. Flores saw that Officer Spicer was injured. Flores moved the Reeves vehicle to get to and assist Officer Spicer. Officer Brittingham returned from unsuccessfully chasing Reeves. When he realized that Officer Spicer had been shot he gave assistance and radioed for help.
(r) Powell was located in a nearby residence when the resident alerted the police. He was in possession of a handgun which is linked to the gun used to cause the death of Officer Spicer. That same handgun is linked to evidence located at McDonald's.
(s) The timeline on the above is as follows:
(1) 6:42 p.m. — The 911 McDonald's call
(2) 6:45 p.m. — Officer Brittingham and Officer Spicer begin pursuit
(3) By 7:02 p.m. Powell is taken into custody at the nearby residence.
(t) Reeves turned himself in several days later.
Based upon the above allegations, Powell was indicted for two counts of murder in the first degree, seven counts of possession of a firearm during the commission of a felony, burglary in the second degree, assault in the second degree, resisting arrest with force, attempted robbery in the first degree and reckless endangering in the first degree.
The "McDonald's charges" involve the attempted robbery and reckless endangering charges as well as two accompanying firearms charges.
The remaining charges involve the events at the homicide scene, with the exception of the burglary and accompanying firearm charges that allegedly involve Powell's capture and/or arrest.
Superior Court Criminal Rule 8(a) permits the joinder of these three incidents.
Super. Ct. Crim. R. 8(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
The defense seeks to have the "McDonald's charges" severed from the "police shooting" allegations. This is the Motion for Relief from Prejudicial Joinder, pursuant to Superior Court Criminal Rule 14.
Super. Ct. Crim. R. 14 Relief from prejudicial joinder. If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney general to deliver to the court for inspection in camera any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial.
Specifically, the defense seeks not only the severance of the "McDonald's charges", but to also sever Counts Two and Three, the felony murder charge (i.e. murder committed during flight from the attempted robbery at McDonald's) and the accompanying weapons offense.
If the defense motion was to be granted the result would be two capital murder trials.
Combined with the severance motion is the request that in the murder charge involving the death of a police officer in the line of duty, the jury not hear anything about the incident at McDonald's because the probative value is substantially outweighed by the danger of unfair prejudice . Delaware Rules of Evidence ("D.R.E.") 403. The defense also argues that if the McDonald's at tempted robbery is severed, then for trial purposes the McDonald's attempted robbery would be uncharged conduct as to the trial on the shooting of Officer Spicer, and D.R.E. 404(b) should not allow the McDonald's incident to be put before the jury. Additionally, the defense argues that, since the "McDonald's charges" included uncharged prior misconduct (the drug deal), then this evidence should also be barred by D.R.E. 404(b).
D.R.E. 403 Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.
D.R.E. 404(b) Other crimes, wrongs or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
For the reasons set forth below, the Court shall not sever the charges, nor will the Court restrict the State from using the drug deal allegations at trial.
This Court has recently addressed a similar application and I borrow from Judge Richard F. Stokes' decision in State v. Millard Price, 2009 WL 5852853 (Del. Super. Nov. 3, 2009):
Pursuant to Superior Court Criminal Rule 8(a), two or more criminal offenses may be joined in the same indictment if one of the following circumstances exists: (1) the offenses are of the same or similar character; (2) the offenses are based on the same act or transaction; (3) the offenses are based on two or more connected acts or transactions; or (4) the offenses are based on two or more acts constituting parts of a common scheme or plan. The rule of joinder is designed to promote judicial economy and efficiency, so long as the defendant's rights are not compromised by the joinder. Mayer v. State, 320 A.2d 713 (Del. 1974). Rule 8(a) must be read in conjunction with Rule 14, which gives the Court discretion to order severance if it appears that either party will be prejudiced by joinder of either offenses or defendants. State v. Strickland, 2007 WL 949481 (Del. Super.); State v. Garden, 2000 WL 33114325 (Del. Super.). The defendant bears the burden of showing prejudice sufficient to require severance, and a hypothetical assertion of prejudice is not enough. Bates v. State, 386 A.2d 1139 (Del. 1978). The decision whether or not to grant a motion for severance is within the discretion of the Court. Id. at 1141.
If the Court finds joinder appropriate under Rule 8(a), the Court must then determine whether the defendant would be prejudiced by the joinder. State v. Strickland, 2007 WL 949481 (Del. Super.). A defendant might suffer prejudice from joinder because (1) a jury may improperly infer a general criminal disposition on the part of the defendant from the multiplicity of charges; (2) a jury may accumulate evidence presented on all offenses charged in order to justify a finding of guilt of particular offenses; or (3) the defendant may be subject to embarrassment or confusion in attempting to present different defenses to different charges. State v. McKay, 383 A.2d 260 (Del. 1978). On the other hand, where the offenses charged are of the same general nature and give evidence of a modus operandi, severance may be denied even in the face of obvious prejudice to the defendant. Id. The test for determining whether Defendant has met his burden of showing prejudice is whether joinder is so manifestly prejudicial that it outweighs the dominant concern with judicial economy and compels the Court's discretion to sever. State v. Howard, 1996 WL 190045 (Del. Super.).Id. at 1-2.
First, the defense acknowledges that both of the murder counts are potential capital murder offenses. The defense desires two separate capital murder trials. While not questioning this strategy, that would give the State two bites of the apple. I find that two capital murder trials would not promote judicial economy and efficiency, nor would it be practical or possible to divide the alleged evidence of the conduct of the defendant into separate camps.
The timeline from the flight from McDonald's to the officer being shot is literally minutes.
The jury would necessarily be aware of why the police were attempting to stop the Reeves vehicle. It would be unfair to the State for the jury to be led to believe that the police, for no reason, decided to chase and attempt to stop the Reeves vehicle with their emergency equipment on.
The facts surrounding the flight from McDonald's give rise not only to why the police were attempting to stop the Reeves vehicle, but they also give rise to inferences as to why a person in the fleeing vehicle would shoot at the police officer, i.e. motive and intent.
The murder counts both allege that Powell recklessly caused the death of Officer Spicer, but that does not mean the State is restricted to proving a reckless state of mind. Proof that an act was done intentionally establishes the lesser state of mind of recklessly. 11 Del.C. § 253
The timeline of the three incidents is approximately 15 minutes, with allegations that the firearm was in the defendant's possession in the first (McDonald's), second (shooting of Officer Spicer), and third (burglary/capture) incidents. Such evidence is interconnected and relevant as to the ultimate question of criminal liability.
While the attempted robbery, the homicide, and the burglary allegations are separate offenses, they arise from a set of connecting facts which center around the flight and subsequent police contact arising from the flight. See Downes v. State, 1996 WL 145836 (Del. Mar. 13, 1996).
The evidence as to McDonald's, the shooting of Officer Spicer, and the burglary/capture, is inextricably intertwined such that if the McDonald's allegations were to be excluded, there would exist a chronological and conceptual void, creating the potential significant confusion for the jury to understand the what, when, where and who as to September 1, 2009. Pope v. State, 632 A.2d 73 (Del. 1993).
In considering whether a severance of the different incidents is appropriate, the Court should also consider whether the conduct sought to be severed would still be admissible at trial, even if severed. If the conduct in this case involving the McDonald's attempted robbery would be admissible in the charge involving the death of Officer Spicer, then there is no point in severing. This analysis is a replowing of what has been discussed above, but I shall also consider the uncharged drug deal evidence.
Getz v. State, 538 A.2d 726 (Del. 1988) (" Getz"), requires the Court to consider the following when determining the admissibility of evidence of other crimes of wrongs for the limited purposes permitted to D.R.E. 404(b):
(a) The evidence must be material to an issue or ultimate fact in dispute. It must be relevant to the issue in dispute and not evidence which is slanted toward a disposition to commit criminal activity. In the present case, the most important issue is who shot Officer Spicer. The evidence of the criminal plan to get or deal in illegal drugs set the stage for the subsequent unfortunate events. It is expected that at least three witnesses will provide testimony of the plan to do a drug deal at McDonald's, which allegedly turned into a drug deal gone bad, i.e. the attempted robbery and reckless endangering. The evidence of the plan to the drug deal satisfies the requirement of being material to an issue or ultimate fact. The balance of the McDonald's allegations are material to ultimate facts in issue as explained heretofore.
(b) The evidence must be introduced for a relevant purpose. Pursuant to the Rule relevant purposes include proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake. In the present case, the drug deal plan is relevant as to the motive, opportunity and plan to meet the drug dealer. The balance of the "McDonald's charges" (attempted robbery and discharging the firearm) are relevant as to motive for flight, intent to avoid arrest and identity of who had the firearm.
(c) The proof must meet the standard of plain, clear, and conclusive. Based upon the evidence alleged at the proof positive hearing, I am satisfied the evidence concerning the drug deal plan and the balance of the McDonald's incident meets the proof standard of plain, clear, and conclusive. Vanderhoff v. State, 684 A.2d 1232 (Del. 1996).
(d) The prior acts or incidents are not remote in time but all part of the unraveling of events over a 15-minute time frame.
(e) A limiting instruction is appropriate as to the uncharged drug deal plan.
(f) Finally, Getz requires the Court to conduct a D.R.E. 403 balancing test to determine if the "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading to the jury." Deshields v. State, 706 A.2d 502 (Del. 1998) (" Deshields"), is the guide to this factor. None of the Deshields factors weigh towards keeping the drug plan or McDonald's allegations from the jury. As discussed above, the inextricably intertwined nature of the allegations would cause jury confusion if all of the incidents were not presented to the jury as seamlessly as they allegedly occurred on September 1, 2009. The alleged prejudicial impact is simply due to the raw allegations of the criminal activity and this cannot be avoided with the exception of the issuance of a limiting instruction on the drug transaction.
The third incident has been referenced above as the burglary/capture allegations. The relevance from the State's viewpoint of this evidence is significant as it puts the murder weapon in the hands of the defendant minutes after the shooting.
Therefore, because the jury would be exposed to the drug transaction, the "McDonald's charges", the shooting of Officer Spicer, and finally this defendant's capture, there shall be no severance.
The defense is understandably concerned about the potential prejudice against their client, who is charged with the death of a police officer. But the potential prejudice is a fact of life in this case, whether there is one trial (with both murder counts) or two trials separating the two murder counts. As stated in the Court's earlier decision denying the change of venue, the publicity and potential prejudice attached to this case will have to dealt with in the jury voir dire.
Returning to the applicable legal analysis as set forth in Price, I summarize: (a) the allegations of the separate incidents are close in time and involve interconnecting evidence and they are appropriately joined in one indictment; and (b) I am satisfied the defendant has not established he would suffer substantial prejudice arising from a jury inferring if he did one crime he must have done another. His is no more than a conclusory assertion of hypothetical prejudice.
I am satisfied that a fair and impartial jury can, when properly instructed, decide each separate count and not infer if Mr. Powell committed one offense he must have been involved in the other offenses.
The Defendant's Motion for Relief from Prejudicial Joinder is denied. The Defendant's Motion to Exclude, which piggy backs the first motion, is denied.
IT IS SO ORDERED.