Madison v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JEROME MADISON, §
§
Defendant Below, § No. 147, 2015
Appellant, §
§
v. § Court Below: Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § Cr. ID No. 1312014951
§
Plaintiff Below, §
Appellee. §
Submitted: November 6, 2015
Decided: January 28, 2016
Before VALII-IURA, VAUGHN, and SEITZ, Justices.
0 R D E R
This 28'11 day of January 2016, upon consideration of the briefs of the parties
and the record in this case, it appears to the Court that:
(1) The appellant, Jerome Madison, appeals from his convictions for
Rape in the First Degree, Attempted Rape in the First Degree, Unlawful Sexual
Contact in the First Degree, Home Invasion, Possession of a Deadly Weapon
During the Commission of a Felony, two counts of Kidnapping in the First Degree,
Assault in the Second Degree, Assault in the Third Degree, and two counts of
Terroristic Threatening. Madison was sentenced to sixty years of Level V
incarceration, suspended afier forty-two years for decreasing levels of supervision.
This is Madison’s direct appeal.'
(2) The trial record reflects that in early December 2013 Madison’s ex-
girlfiiend, A.T., obtained a protection from abuse (“PFA”) order prohibiting
Madison from entering her house. Around 1 am. on December 24, 2013, A.T.’s
friend, E.C., came to A.T’s house with a bottle of vodka. Madison had previously
warned EC. to stay away from A.T. While A.T. and EC. were making out in
A.T.’s bedroom, Madison burst through the bedroom door.
(3) AT. and EC. testified that Madison was carrying two knives and
threatened to kill A.T. They also testified that Madison claimed to have a gun.
Madison punched, kicked, and cut A.T. Madison also punched and cut EC.
(4) Madison forced A.T. to perform oral sex on EC. and then ordered
EC. to perform oral sex upon A.T. There was conflicting testimony as to whether
E.C. performed oral sex upon A.T. or pretended to do so. Madison ordered E.C.,
who was bleeding, to clean himself up and lock himself in the bathroom. While
BC. was in the bathroom, Madison fondled A.T. Madison then told EC. to come
out of the bathroom. Before leaving, Madison threatened to hurt the victims and
their families if they contacted the police.
' Madison was represented by counsel at trial, but waived his right to counsel on appeal and was
permitted to represent himself.
2
appropriate action, which may include a confidential referral to a lawyer orjudicia]
assistance program.” At one point during the trial, Madison’s counsel did not hear
the Superior Court judge’s question regarding whether a witness could be excused
and the judge had to repeat the question. Madison’s counsel joked that his wife
said he needed hearing aids and that he should probably look into her advice. This
passing comment did not require the Superior Court to take any action and does
not constitute reversible error.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
1'1.
(5) After Madison left, E.C. went to his house. A.T. arranged for a fi'iend
to come over and look after her children. A.T. then picked up EC. and they went
to the hospital for treatment. Both victims were interviewed by the police at the
hospital.
(6) At trial, Madison admitted to violating the PFA order and hitting EC.
and A.T. Madison denied that he threatened A.T. and BC. with knives, forced
A.T. and EC. to have oral sex, or fondled A.T. The Superior Court found
Madison guilty of Rape in the First Degree, Attempted Rape in the First Degree as
a lesser included offense of Rape in the First Degree, Unlawfiil Sexual Contact in
the First Degree, Home Invasion, Possession of a Deadly Weapon During the
Commission of a Felony, two counts of Kidnapping in the First Degree, Assault in
the Second Degree, Assault in the Third Degree, and two counts of Terroristic
Threatening.
(7) After the Superior Court’s verdict, Madison’s counsel filed a motion
to withdraw, which the Superior Court denied. Madison filed pro se motions to
dismiss his counsel, recuse the Superior Court judge who presided over the trial,
participate with his counsel in his defense, and vacate the judgment or enter a
judgment of acquittal based upon the Superior Court judge’s failure to recuse
himself. The Superior Court granted Madison’s motion to participate in his
defense in order to resolve Madison’s pro se motions. The Superior Court denied
the rest of Madison’s pro se motions. Madison was subsequently sentenced to
sixty years of Level V incarceration, suspended after forty-two years for
decreasing levels of supervision.
(8) On appeal, Madison first argues that the Superior Court judge who
presided over the trial erred in failing to recuse himself because he was a former
prosecutor who had previously supervised the prosecutor in Madison’s case. This
claim is without merit.
(9) When deciding whether to recuse himself, ajudge engages in a two-
part analysis. First, the judge must be satisfied, as a matter of subjective belief,
that he can hear the matter free of bias or prejudice.2 Second, even if the judge
believes he is free of bias or prejudice, he must objectively consider whether the
circumstances require recusal because there is an appearance of bias sufficient to
cast doubt on the judge’s impartiality.3 On appeal, we review the subjective
analysis for abuse of discretion and the objective analysis de novo.4
(10) In applying the two-part analysis for recusal, the Superior Courtjudge
noted that: (i) he had not presided over any matters in which the State of Delaware
was a party (and therefore the Department of Justice was counsel for the State) for
one year after he became a Superior Court judge in January 2013; (ii) he did not
2 Los v. L05, 595 A.2d 381, 384-85 (Del. 1991).
3 1d. at 335.
4 Fritzinger v. State, 10 A.3d 603, 611 (Del. 2010).
4
have any involvement in Madison’s case before he became a judge because the
crimes were not committed until December 2013; and (iii) he had not directly
supervised the trial prosecutor since 2005 and had not indirectly supervised the
trial prosecutor since 2008. The Superior Court judge concluded, as a matter of
subjective belief, that he could and did hear the matter free of bias or prejudice and
that an objective observer would not question his impartiality. Under the
circumstances, we do not discern any abuse of discretion in the Superior Court’s
subjective analysis nor, after de novo review, do we discern any appearance of bias
sufficient to cast doubt on the Superior Court judge’s impartiality. We also reject
Madison’s contention that the Superior Court judge had to disclose his previous
supervision of the prosecutor sua sponte during Madison’s waiver of his right to a
jury trial.
(11) Madison next contends that his waiver of a jury trial was defective
because his counsel filed a motion to withdraw several months before the waiver
colloquy stating, among other things, that he believed Madison intended to subom
or commit perjury. This claim is without merit.
(12) The record reflects that the Superior Court accepted Madison’s waiver
of his right to a jury trial after engaging in a colloquy with Madison that was
consistent with the form of waiver colloquy we endorsed in Davis v. States and
5 809 A.2d 565, 571-72 (Del. 2002).
reviewing the waiver of jury trial form signed by Madison and counsel. At the
time of this waiver, Madison knew that his counsel had filed a motion to withdraw
referring to his belief that Madison intended to suborn or commit perjury. That
motion was heard and denied by a different Superior Court judge than the judge
who accepted Madison’s waiver of his right to a jury trial and presided over his
trial. The record also reflects that Madison wanted a different Superior Court
judge than the judge who denied his counsel’s motion to withdraw to preside over
his trial, which is exactly what happened. Under these circumstances, the Superior
Court did not err in determining that Madison’s waiver of his right to a jury trial
was knowing and voluntary.
(13) Madison next claims that the State violated Superior Court Criminal
Rule 16 and Brady v. Marylaer6 by suppressing exculpatory results of DNA
testing on swabs taken from the victims’ bodies and by failing to identify an expert
witness who testified at trial. There claims were not raised below and are subject
to plain error review.7 There is no plain error here.
(14) In its March 19, 2014 Superior Court Criminal Rule 16 disclosures,
the State indicated that DNA was pending. At trial, Detective DiSabatino testified
that no DNA testing was performed. The State confirmed in its closing arguments
that no evidence was sent for DNA testing. The State is not required to test
6 373 us. 33 (1963).
7 Supr. Ct. R. 8.
physical evidence seized by the police.8 Madison’s claim that the State suppressed
exculpatory results of DNA testing is without merit.
(15) As to the identification of expert witnesses, the State indicated in the
March 19, 2014 disclosures that it intended to call Sexual Assault Nurse Examiners
(“SANE”) Steaphine Taggart and Anita Symonds as experts in medical diagnosis
and treatment. The disclosures stated that Taggert and Symonds would testify
consistently with the enclosed medical records and offer expert opinions that the
victims’ injuries or lack thereof were consistent with their versions of the sexual
assaults. At trial, the State called Symonds, the SANE who treated and collected
evidence from BC, but did not call Taggert. Instead, the State called Oldham, the
SANE who treated and collected evidence from A.T. Madison did not object to
Oldham testifying and has not identified any prejudice he suffered as a result of
Oldham testifying instead of Taggert. Madison’s claim regarding the identification
of Oldham as an expert witness does not constitute plain error. 9
(16) Madison next contends that the State violated Superior Court Criminal
Rule 26.2 and his constitutional right to confront witnesses by failing to produce
statements of the victims and a typed report of Detective DiSabatino, who
3 Rufi‘in v. State, 2015 WL 7890052, at *1 1 (Del. Dec. 3, 2015).
9 Cf Bacon v. State, 1993 WL 433528, at *4 (Del. Oct. 15, 1993) (finding no reversible error
where defendant objected at trial to State calling doctors who treated victims instead of doctor
identified under Superior Court Criminal Rule 16(a)(1)(e)).
7
interviewed A.T. and was the chief investigating officer. This claim was not raised
below and is subject to plain error review.lo There is no plain error here.
(17) Superior Court Criminal Rule 26.2 provides that after a witness other
than the defendant has testified on direct examination, the Superior Court shall,
upon the motion of the party who did not call the witness, order the party who
called the witness to produce any statement of the witness that is in their
possession and that relates to the subject matter of the witness’ testimony.
Madison’s counsel did not move for the State to produce statements of the victims
after their direct examinations by the State. The record reflects that several months
before trial the State produced, among other things, the report of Officer Drake,
who interviewed A.T. before Detective DiSabatino, the report of Detective Breslin,
who interviewed EC, and a cd with an interview of at least one of the victims.
The cross-examinations and closing argument of Madison’s counsel reflect that he
had access to statements made by the victims because he emphasized that they
testified at trial about comments Madison made that did not appear in any of their
previous statements to the police or hospital staff.
(18) As to Detective DiSabatino’s typed report, the trial transcript reflects
that Madison’s counsel had Detective DiSabatino’s handwritten notes during his
first cross-examination of Detective DiSabatino, but did not have a c0py of a typed
'0 Supr. Ct. R. 8.
report prepared by Detective DiSabatino. It was agreed that the State would
provide a copy of the report during the evening recess and that Detective
DiSabatino would be available for additional cross-examination the next day. The
next day Madison’s counsel stated that he had received a copy of Detective
DiSabatino’s report and further cross-examined Detective DiSabatino about
statements A.T. made to him. Under these circumstances, we find no plain error
relating to the State’s production of the victim’s statements or Detective
DiSabatino’s typed report.
(19) Madison next claims that his absence from the courtroom during his
counsel’s resumed cross-examination of Detective DiSabatino on September 25,
2014 violated Superior Court Criminal Rule 43 and his constitutional right to be
present at trial. Madison did raise this claim below so we review for plain error.II
The record does not support this claim. There is no indication in the trial transcript
that the trial started on September 25, 2014 before Madison entered the courtroom
or that Madison entered the courtroom after Detective DiSabatino testified.
(20) Madison next contends that the Superior Court’s verdict failed to
address Madison’s state of mind or missing evidence adequately. In a bench trial,
the Superior Court “shall make a general finding and shall in addition, on request
made before the general finding, find the facts specifically.”12 Neither party
requested that the Superior Court make specific findings of fact. “It is well
established that, under Rule 23(c) if neither party requests specific findings, the
judge has the discretion to render a general verdict without any findings or to make
specific findings on his own motion?”
The Superior Court therefore did not err
in rendering a general verdict without any factual findings.
(21) When the Superior Court renders a general verdict without factual
findings, we resolve all factual questions in favor of the Superior Court’s findings
if there is sufficient evidence to support those findings.14 “As long as there are
facts in the record to support the general verdict, under this standard, our deference
is nearly absolute.”15 The facts in this case are sufficient to support the Superior
Court’s verdict.
(22) Finally, Madison claims that the Superior Court judge violated Rule
2.14 of the Judges’ Code of Judicial Conduct because he did not take any action
after Madison’s counsel commented that his wife believed he needed hearing aids.
Rule 2.14 of the Judges’ Code of Judicial Conduct provides that a judge who has
“a reasonable belief that the performance of a lawyer or another judge is impaired
by drugs or alcohol, or by a mental, emotional, or physical condition, should take
'2 Super. Ct. Crim. R. 23(c) (emphasis added).
‘3 Cruz v. State, 12 A.3d 1132, 1135 (Del. 2011).
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