Collins v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
SOLOMON COLLINS, §
§ No. 88, 2015
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 0910019961
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: April 27, 2016
Decided: May 2, 2016
Before VALIHURA, VAUGHN, and SEITZ, Justices.
ORDER
This 2nd day of May, 2016, it appears to the Court that:
(1) In July of 2011, the Superior Court tried Solomon Collins for the
murder of Tommear Tinnin. Before trial, two eyewitnesses identified Collins from
a photo lineup. Detective Patrick Conner of the Wilmington Police Department
had interviewed the witnesses. Detective Conner made an audio recording of
eyewitness Violet Gibson’s statement. For the other witness, Shakira Romeo, he
made notes on a notepad and directly on the photo array. At trial, Romeo’s and
Gibson’s testimony contradicted their previous statements. The State relied on 11
Del. C. § 3507 to introduce their previous statements through Detective Conner. A
Superior Court jury convicted Collins of murder and related crimes. We affirmed
his convictions on direct appeal.
(2) In 2013, Collins filed a motion for postconviction relief alleging
ineffective assistance of trial and appellate counsel for failing to object to and
appeal Detective Conner’s testimony admitted under § 3507. The Superior Court
denied the motion because Detective Conner’s testimony reflecting Gibson’s and
Romeo’s photo identification of Collins was not improper narrative interpretation
or embellishment, and Collins could not demonstrate prejudice.
(3) During Collins’ second appeal to this Court, the State learned that
there was a discrepancy between the photo array the State admitted at trial that
Romeo had used to identify Collins, and the copy that the State had sent to Collins’
attorney during discovery. Detective Conner had written the word “shooter” on the
photo array admitted at trial, but Collins’ copy did not have the word “shooter” on
it. At the parties’ joint request, we remanded the case to the Superior Court for a
hearing to explore the nature of the discrepancy between the photos.
(4) The Superior Court held a two day hearing on remand and
determined, in a thorough opinion, that Detective Conner added the word “shooter”
to the photo array shown to Romeo after the discovery copy was sent to Collins.
The court also determined that the addition was not made in bad faith or in
response to the § 3507 issue that arose at trial. Further, the Superior Court held
2
that Collins’ trial counsel was not ineffective because Collins could not show how
the discrepancy had caused any prejudice. This appeal followed.
(5) After reviewing the record and the arguments on appeal, we find that
the Superior Court correctly concluded in its opinion on remand that Collins
cannot demonstrate prejudice from the trial exhibit dispute as it pertained to
Romeo’s § 3507 statement, and also that trial counsel’s failure to discover the
discrepancy did not violate Strickland.1 The Superior Court also correctly
concluded in its first opinion that Gibson’s § 3507 statement was not an improper
narrative and therefore counsel was not ineffective for failing to object to it.2 We
therefore affirm.
(6) On October 8, 2009, Tommear Tinnin was shot to death while sitting
in the back seat of a parked car with his two cousins and another young relative.
The assailant fled the scene and passed two bystanders, Violet Gibson and Shakira
Romeo. Gibson and Romeo met with Detective Conner after the incident. They
both identified Solomon Collins as the shooter from a photo array. Detective
Conner made an audio recording of his interview with Gibson. He did not record
his interview with Romeo. Instead, he took notes on his notepad and directly on
the photo array he presented to Romeo during the interview.
1
State v. Collins, Cr. ID No. 0910019961 (Del. Super. Dec. 22, 2015).
2
State v. Collins, 2015 WL 412924, at *1 (Del. Super. Jan. 30, 2015).
3
(7) At trial, the testimony of Gibson and Romeo was inconsistent with
their prior statements to Detective Conner. The State used 11 Del. C. § 3507 to
introduce their out of court statements through Detective Conner during his
testimony. The State also played the audio recording of Gibson identifying Collins
as the shooter, and introduced into evidence the photo array Detective Conner had
written on reflecting Romeo’s identification. During his testimony, Detective
Conner clarified that Gibson had identified Collins as the shooter because the
recording identified the suspects by number rather than name. Further, he testified
that Romeo identified Collins as the shooter and that he wrote notes regarding her
statements onto the photo array during the interview.
(8) After an eight day trial, a jury found Collins guilty of Murder First
Degree, three counts of Reckless Endangering First Degree, two counts of
Possession of a Firearm During the Commission of a Felony, and Possession of a
Deadly Weapon by a Person Prohibited. On July 15, 2011, the Superior Court
sentenced Collins to life imprisonment for the murder conviction, and additional
time for the remaining counts.
(9) We affirmed Collins’ conviction on direct appeal in 2012.3 In 2013,
Collins filed a motion for postconviction relief alleging ineffective assistance of
counsel. The Superior Court denied the motion and held that counsel was not
3
Collins v. State, 56 A.3d 1012 (Del. 2012).
4
ineffective for failing to object, because admission of the § 3507 statements of both
Romeo and Gibson had been proper.4 Collins appealed the Superior Court’s
rulings on the admission of each witness’ § 3507 statement. During the appeal, the
State learned that there was a discrepancy between the photo array that Romeo had
used to identify Collins, which the State admitted at trial (“State’s Exhibit 84”),
and the copy that the State had sent to Collins’ attorney during discovery. The
word “shooter” was written on State’s Exhibit 84, but Collins’ copy did not have
the word “shooter” on it. At the parties’ joint request, we remanded the case to the
Superior Court for a hearing to explore the nature of the discrepancy between the
photos and retained jurisdiction. We declined to address Collins’ second argument
at that time, which pertains to Gibson’s § 3507 statement, at the time we issued the
remand order.
(10) On remand, the Superior Court held a hearing to address the
discrepancy. The State offered the testimony of Detective Conner, the trial
prosecutors, and the trial defense attorney. The Superior Court found that (1)
Detective Conner added the word “shooter” to the original photo array shown to
Romeo after the discovery copy was made for Collins; (2) the alteration made to
the original photo was not done in bad faith or in response to the § 3507 issue that
arose at trial; (3) Romeo identified Collins as the shooter during her interview with
4
Collins, 2015 WL 412924.
5
Detective Conner; and (4) exclusive of the photo array, the trial prosecutors and
defense counsel were aware during the pendency of the case that Romeo had
identified Collins as the shooter and expected her to testify consistent with that
identification at trial.5
(11) Based on these findings, the Superior Court held that Collins’
ineffective assistance of counsel claim failed. The court found that the issue of
when Detective Conner wrote the word “shooter” on the photo array was
immaterial because Romeo’s statement still would have been introduced as a §
3507 statement at trial. Therefore, even if trial counsel had noticed the discrepancy
and raised the issue, the outcome would have been the same. Further, the Superior
Court held that Collins could not show he was prejudiced by the discrepancy
because Romeo’s identification of Collins as the shooter was never withheld from
trial counsel. Therefore, trial counsel was aware of Romeo’s pretrial identification
of Collins as the shooter and could have expected testimony consistent with that
identification at trial.
(12) This Court reviews the Superior Court’s decision to deny post
conviction relief for abuse of discretion.6 “Similarly, our review on a ruling on the
admissibility of a § 3507 statement is for abuse of discretion. Thus the trial court’s
judgment is reversible only if we find that the decision to admit the § 3507
5
App. to Opening Br. at 180-81.
6
Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
6
evidence was clearly erroneous.”7 We review questions of law de novo.8 We
review the Superior Court’s factual findings and credibility determinations
deferentially, and will reverse only if the findings are clearly erroneous.9
(13) Collins argues that his trial counsel was ineffective by failing to object
to the admission of Gibson’s § 3507 statement as amounting to improper
embellishment. Second, Collins argues that his appellate counsel was ineffective
for failing to raise the issue on direct appeal of whether Romeo’s § 3507 statement
was an inadmissible interpretive narrative.10 Finally, Collins argues that his trial
counsel was ineffective for failing to identify the discrepancy between the photo
array the State provided during discovery and the one admitted at trial.
(14) Collins argues that his trial counsel was ineffective for failing to
object to the admission of Detective Conner’s “embellished,” narrative testimony
on the substance of Gibson’s identification. Collins made this argument in his
Opening Brief in this appeal, but the Court declined to address it in the remand
order, as the resolution of the photographic array discrepancy issue pertaining to
Romeo could have potentially made it moot.11 To prevail on this claim, Collins
must be able to satisfy the two-prong test from Strickland v. Washington, showing
both that his trial counsel’s failure to object fell below an objective standard of
7
Flonnory v. State, 893 A.2d 507, 515 (Del. 2006).
8
Id.9
Woody v. State, 765 A.2d 1257, 1261 (Del. 2001).
10
Opening Supp. Mem. at 3.
11
Collins v. State, No. 88, 2015 (Del. Oct. 23, 2015).
7
reasonableness and that but for that deficient performance, there was a reasonable
probability that the outcome of the proceedings would have been different; in other
words, that there was prejudice to his defense.12 To eliminate “the distorting
effects of hindsight,” there is a strong presumption that trial counsel’s
representation was professionally reasonable.13 And “there is no need to examine
whether an attorney performed deficiently if the deficiency did not prejudice the
defendant.”14
(15) Essentially, because it was not possible from the audio recording to
ascertain who Gibson was identifying as the shooter without additional information
(she could be heard identifying the person in photograph number three), Detective
Conner, who showed Gibson the array, testified that the person she identified was
Collins. In another part of the recording, Gibson contradicted her earlier
identification by stating that Collins had “nothing to do with it.” Collins argues
that because Gibson’s statement was recorded, only the recording should have
been admitted—not Detective Conner’s testimony on the substance of the
recording. He finds this particularly pressing because Detective Conner’s
testimony “contradicted” the recording, and emphasized inculpatory portions (the
12
466 U.S. 668, 687 (1984).
13
Hoskins v. State, 102 A.3d 724, 730 (Del. 2014).
14
Ploof v. State, 75 A.3d 811, 825 (Del. 2013).
8
identification) while ignoring the exculpatory statement about Collins having
“nothing to do with it.”
(16) The fact that Gibson’s statement needed some explanation because it
was an audio recording of an exchange in which a witness identified a person in a
numbered photograph by number does not transform Detective Conner’s testimony
into an “interpretive narrative.” Gibson had identified Collins’ picture as the
“shooter” or “the boy with the shooter,” and thus it was neither narrative
interpretation nor embellishment for Detective Conner to clarify who Gibson
identified in the array.
(17) In addition, the jury heard the complete recording, including the
exculpatory statement about Collins having “nothing to do with it.” Detective
Conner’s testimony served merely to make understandable an identification that
would otherwise be meaningless to anyone listening only to the audio recording,
rather than to put emphasis on any particularly damning portions of Gibson’s
statement. Collins cannot demonstrate that Detective Conner’s statement was an
improper interpretive narrative, and therefore cannot show that there was a
reasonable probability that an objection would have resulted in a different
outcome.
(18) Collins also argues that the word “shooter” was an interpretive
narrative because it was not written contemporaneously with Romeo’s statement
9
and therefore was “not memorialized by a verbatim written, audio or video record,
or contemporaneous shorthand notes.”15 In his opening brief, Collins argued that
his appellate counsel was ineffective for failing to appeal the admission of
Romeo’s § 3507 statement because it was an interpretive narrative. Collins makes
the related argument following remand that the Superior Court erred by finding
that regardless of when the word “shooter” was written, it was admissible as a §
3507 statement at trial.
(19) Under 11 Del. C. § 3507:
(a) In a criminal prosecution, the voluntary out-of-court prior
statement of a witness who is present and subject to cross-examination
may be used as affirmative evidence with substantive independent
testimonial value.
(b) The rule in subsection (a) of this section shall apply regardless of
whether the witness’ in-court testimony is consistent with the prior
statement or not. The rule shall likewise apply with or without a
showing of surprise by the introducing party.
The offering party must lay a proper foundation as to both the events perceived or
heard as well as the statement itself.16 Further, to comport with Collins’ Sixth
Amendment right to confront witnesses against him, the declarant must be subject
to cross examination on the content of the statement as well as its truthfulness.17
(20) This Court has emphasized:
15
Opening Supp. Mem. at 3.
16
Keys v. State, 337 A.2d 18 (Del. 1975).
17
Ray v. State, 587 A.2d 439, 443 (Del. 1991) (citing Johnson v. State, 338 A.2d 124, 126-27
(Del. 1975)).
10
It is the statement of the declarant that is being admitted, not the
interpretive narrative of the person who heard the statement. Care
should be taken to guarantee that [§ 3507] is not abused by permitting
a witness, such as a police officer, to embellish the prior statement by
his own interpretation, even if the embellishment is made in the
utmost good faith.18
We have stated that the preferred way to present § 3507 evidence “is by a written
statement from the declarant or a redacted recorded statement of only the
declarant’s words.”19 But this Court has never required that the State present a
verbatim recording of the declarant’s statement. Rather, we have held that in the
absence of a verbatim record, the admission of a witness’ statement as recorded in
a police officer’s shorthand notes is permissible where the officer writes down the
“words said by the person that he was interviewing, which gave him certain factual
information that he thought was important to be recorded.”20
(21) In its first postconviction opinion, the Superior Court determined that
Collins failed to satisfy either prong of Strickland with his § 3507 argument. The
court held that counsel on the direct appeal was not deficient for failing to raise the
argument there, and that there was no prejudice because “Romeo’s identification of
[Collins] as the shooter is expressly recorded” in his notes.21 The later discovery
of the discrepancy between the two photographs does not affect the Superior
Court’s conclusion.
18
Hassan-el v. State, 911 A.2d 385, 395-96 (Del. 2006).
19
Id. at 398.
20
Flonnory, 893 A.2d at 522-23.
21
Collins, 2015 WL 412924, at *3-4.
11
(22) The Superior Court found after the remand hearing that Romeo
identified Collins as the shooter during her interview, but for some reason
Detective Conner failed to write it on the photo array at that time. There is ample
evidence in the record to support the court’s determination. Detective Conner
testified consistently at trial and at the hearing as to the substance of Romeo’s
statements during his interview with her. Further, trial counsel was aware that
Romeo had identified Collins as the shooter before trial and expected her to testify
to that fact at trial. Finally, Detective Conner’s police report and affidavit of
probable cause, both authored well in advance of trial, reflect Romeo’s pretrial
identification of Collins as the shooter. The Superior Court’s factual determination
is therefore supported by the record and is not “clearly erroneous.” We defer to
that factual finding.22
(23) The fact that Detective Conner did not write the word “shooter” on the
photo array contemporaneously with Romeo’s statement, though imprudent, does
not transform his trial testimony into an interpretive narrative. The law requires
that the detective accurately represent the witness’s actual statement and not give a
personal interpretation of the statement. In this case, Romeo identified Collins as
“the shooter” during the interview. Therefore, the Superior Court properly
determined that the statement was not an interpretive narrative.
22
See Woody, 765 A.2d at 1261.
12
(24) To prevail on his ineffective assistance of appellate counsel claim for
failure to raise the § 3507 issue on direct appeal, Collins would have to satisfy the
deficient performance and prejudice prongs of Strickland.23 Because Detective
Conner’s testimony was not an interpretive narrative, the Superior Court correctly
found that Romeo’s statement was admissible, and there was no reasonable
possibility that appealing the issue would have been fruitful. Collins’ argument
thus fails under the second prong of Strickland.
(25) Finally, Collins argues that trial counsel was ineffective for failing to
discover the discrepancy between State’s Exhibit 84 and the discovery copy. He
argues that the disclosure would have provided grounds to exclude the photo or
impeach Detective Conner’s testimony. Once again, under Strickland,24 Collins
must show (1) that counsel’s representation fell below an objective standard of
reasonableness, and (2) prejudice.25
(26) Collins cannot demonstrate prejudice from trial counsel’s failure to
recognize the discrepancy. State’s Exhibit 84 was not the only time where
Detective Conner recorded that Romeo had identified Collins as the shooter.
Detective Conner’s police report and affidavit of probable cause reflect Romeo’s
pretrial identification of Collins as the shooter. Furthermore, trial counsel was
23
Stone v. State, 690 A.2d 924, 925 (Del. 1996) (citing Strickland, 466 U.S. at 694) (applying
Strickland test to ineffective assistance of appellate counsel claim).
24
466 U.S. at 687; see also Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003).
25
Brooks, 40 A.3d 346, 354 (Del. 2012).
13
aware that Romeo had identified Collins as the shooter before trial and expected
her to testify to that fact at trial. The State also introduced evidence that gunshot
residue and Collins’ DNA were found on the sweatshirt that both witnesses saw
him wearing.26 Further, the State presented the recording of Gibson identifying
Collins in the lineup. Therefore, it is not “reasonably likely the outcome would
have been different” if trial counsel had identified the discrepancy.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
26
Collins, 56 A.3d at 1016.
14