Williams v. State , 2014 Del. LEXIS 344 ( 2014 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
BRANDON WILLIAMS, §
§ No. 523, 2013
Defendant Below- §
Appellant, § Court Below: Superior Court
§ of the State of Delaware in and
v. § for New Castle County
§
STATE OF DELAWARE, § No. 1210009895
§
Plaintiff Below- §
Appellee. §
§
Submitted: May 28, 2014
Decided: July 25, 2014
Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Nicole M. Walker, Esquire, Office of the Public Defender, Wilmington, Delaware
for Appellant.
Maria T. Knoll, Esquire, State of Delaware Department of Justice, Wilmington,
Delaware, for Appellee.
RIDGELY, Justice:
Defendant-Below/Appellant Brandon Williams appeals from a judgment of
convictions in the Superior Court of Burglary Second Degree, Unlawful Use of a
Credit Card, Misdemeanor Theft, and Resisting Arrest. The State alleged that
Williams entered the home of Jeffrey Fisher through an open window and stole his
wallet from his home office. Police officers were alerted and initiated a search of
the area using a K-9 scent-tracking dog. During the search, a dispatcher told the
officers about a white male attempting to break into a nearby BP gas station.
Officers investigated and after a foot chase of that man, who was later identified as
Williams, officers found him in possession of Fisher’s wallet. The wallet
contained a receipt for a purchase with Fisher’s credit card minutes earlier at a
nearby drug store. Store surveillance video confirmed the use of the card by
Williams.
Williams did not object at trial to the evidence of the dispatch to the BP
station. In his defense, Williams conceded that he unlawfully used Fisher’s credit
card and that he resisted arrest. But he denied that he was the person who
burglarized the Fishers’ home. Instead, Williams claimed that he found the wallet
and that he had been too intoxicated to commit the burglary. The jury found
Williams guilty of all charges. The trial court sentenced Williams to fifteen years
2
of imprisonment as a habitual offender pursuant to 11 Del. C. § 4214(a). This
appeal followed.
Williams raises two claims on appeal. He first contends that the trial court
committed plain error when it allowed the State to emphasize through four police
officers and closing argument that Williams was arrested in this burglary case after
the police responded to a call of an attempted burglary at the BP station. Second,
Williams claims that the trial court plainly erred and unfairly bolstered police
testimony when it provided an expert-witness jury instruction that referred to
police officers because there was no qualified expert who testified at trial.
We find no merit to Williams’ appeal. The record shows that Williams’ trial
counsel did not object to the evidence of the dispatch to the BP station for tactical
reasons. Defense counsel also referred to the dispatch call during her closing
argument in support of Williams’ defense. This tactical decision constitutes a
waiver that precludes plain error review. Even if Williams had objected or if
defense counsel had not used the dispatch call as part of a trial strategy, any error
in admitting the hearsay statements was harmless. We also find that the K-9
handler testified as an expert witness, which means that the expert-witness jury
instruction was proper. Accordingly, we affirm.
3
Facts and Procedural History
On the evening of October 14, 2012, Jeffrey Fisher heard a noise in his
computer room while he and his wife were at home. He went to investigate the
noise because he thought that his cat escaped through an open window. When he
looked out the window for the cat, he saw a tall male running. Although no
computer equipment was taken, Fisher’s wife called 911 to report the incident.
Fisher later learned that his wallet, which he normally left on the office desk, was
missing.
Police were dispatched to the Fisher home. Shortly thereafter, dispatch
advised nearby officers of a tall, white male at a local BP station attempting to kick
in the front window or break into the business. Officer Louis Torres responded to
the BP call and parked his car adjacent to the station. Officer Torres saw, a tall,
shirtless, white male, crossing the BP parking lot. When that man, who was later
identified as Williams, saw Officer Torres, he sprinted away. Officer Torres
chased Williams, but he lost sight of him.
Minutes later, Officer Torres found Williams straddling a fence. Torres
ordered Williams to get off the fence and surrender, but Williams refused and
hopped the fence. Other officers apprehended Williams on the other side of the
fence. Police found a wallet on the ground near Williams containing Fisher’s
driver’s license, credit cards, and a receipt from a nearby Rite Aid. Detectives later
4
obtained surveillance video from the Rite Aid of Williams entering the store,
approaching the register, and spreading out multiple credit cards on the counter
before selecting one and purchasing a drink.
Williams was charged with burglary second degree, misdemeanor theft,
unlawful use of a credit card, and resisting arrest. At trial, four officers testified to
the call from dispatch about the incident at the BP station. Before jury
deliberations, the trial court provided an expert witness instruction without
objection. The instruction included a reference to law enforcement officer
testimony. The jury convicted Williams on all counts. The trial court sentenced
Williams to fifteen years at Level V incarceration, suspended after twelve years for
decreasing levels of supervision. This appeal followed.
Discussion
Williams contends that the trial court plainly erred, first, when it allowed the
State to introduce inadmissible hearsay testimony from the police dispatch and,
second, when it provided an expert-witness jury instruction without qualifying an
expert in the case. Because Williams failed to raise these claims in the proceeding
below, Williams must show plain error to have his conviction overturned on
appeal.1 “Under the plain error standard of review, the error complained of must
be so clearly prejudicial to substantial rights as to jeopardize the fairness and
1
See Turner v. State, 5 A.3d 612, 615 (Del. 2010) (quoting Del. Sup. Ct. R. 8; Monroe v. State,
652 A.2d 560, 563 (Del. 1995)).
5
integrity of the trial process.”2 “[P]lain error is limited to material defects which
are apparent on the face of the record; which are basic, serious and fundamental in
their character, and which clearly deprive an accused of a substantial right, or
which clearly show manifest injustice.”3
When police officers testify about an investigation, “[b]ackground
information may be necessary to give the jury a complete picture at trial and to
ensure the jury is not confused in a way that would be unfavorable to the
prosecution.”4 Such information should be primarily used to “fill in gaps” and
“help the jury understand the case in context.”5 But problems can occur where a
statement can serve more than one purpose. As we have stated:
In criminal cases, an arresting or investigating officer should
not be put in the false position of seeming just to have
happened upon the scene; he should be allowed some
explanation of his presence and conduct. His testimony that he
acted “upon information received,” or words to that effect,
should be sufficient. Nevertheless, cases abound in which the
officer is allowed to relate historical aspects of the case, replete
with hearsay statements in the form of complaints and reports,
on the ground that he was entitled to give the information upon
which he acted. The need for the evidence is slight, the
likelihood of misuse great.6
2
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (citing Dutton v. State, 452 A.2d 127,
146 (Del. 1982)).
3
Id. (citing Bromwell v. State, 427 A.2d 884, 893 n.12 (Del. 1981)).
4
Sanabria v. State, 974 A.2d 107, 112 (Del. 2009).
5
Id. (quoting People v. Resek, 821 N.E.2d 108, 109–10 (N.Y. 2004)).
6
Johnson v. State, 587 A.2d 444, 448 (Del. 1991) (quoting Edward W. Cleary, McCormick on
Evidence § 249, at 734 (3d ed. 1984)).
6
Where evidence can be used for more than one purpose, the “preferable
practice” is to allow the State to introduce the background evidence based “upon
information received” rather than introducing specific statements.7 Alternatively,
the trial court can provide a limiting instruction explaining “the purpose for which
the testimony is received” in order to “avert[] any prejudice to the defendant.”8
Nonetheless, where the trial court fails to limit the hearsay statements or provide a
limiting instruction, such error is still subject to harmless error review.9
Williams argues that plain error occurred here. In Wright v. State, we
explained that “[t]he plain error standard of appellate review is predicated upon the
assumption of oversight.”10 But where “the record reflects that the decision not to
object at trial was a ‘deliberate tactical maneuver by’ defense counsel and did not
result from oversight, then that action constitutes a true waiver.”11 And we have
consistently held that a “conscious decision to refrain from objecting at trial as a
tactical matter” will preclude any plain error appellate review.12
7
McNair v. State, 703 A.2d 644, 1997 WL 753403, at *2 (Del. 1997) (quoting McCormick on
Evidence, supra, § 249, at 734).
8
Sanabria, 974 A.2d at 116 (quoting Curry v. Burge, 2004 WL 2601681, at *25 (S.D.N.Y. Nov.
17, 2004)).
9
See Johnson, 587 A.2d at 451.
10
Wright v. State, 980 A.2d 1020, 1023 (Del. 2009) (citing Tucker v. State, 564 A.2d 1110, 1118
(Del. 1989)).
11
Id. (citing Czech v. State, 945 A.2d 1088, 1097 (Del. 2008)).
12
Id.; e.g., Czech, 945 A.2d at 1098; Crawley v. State, 929 A.2d 783, 2007 WL 1491448, at *3
(Del. 2007); Tucker, 564 A.2d at 1125.
7
Despite Williams’ plain error claim, we find that plain error review of the
officers’ hearsay statements is inapplicable. The record shows that defense
counsel did not object to the admission of this hearsay evidence for tactical
reasons. Specifically, defense counsel argued that dispatch’s description of
Williams at the BP station was not the same as Fisher’s description.13 Because
Williams’ failure to object to the admission of the officers’ hearsay statements
appears to have been a conscious, tactical choice, any plain error review was
waived. Given the lack of an objection and the strategic use of the dispatch’s
statements in closing arguments, Williams’ first claim of plain error is without
merit.
Even if Williams had objected below, any error in admitting the hearsay
evidence was harmless beyond a reasonable doubt. Our harmless error standard
for improperly admitted evidence is well-established. “[W]here the evidence
exclusive of the improperly admitted evidence is sufficient to sustain a conviction,
13
In her closing argument, defense counsel told the jury:
Later when the BP calls, or someone calls and said there’s someone at the BP
kicking either a gas pump or the door to the building, and that person is a white
male with dark hair, don’t confuse the two descriptions. And for one second let’s
talk about tall. I am not tall. Detective Sendek is six-feet tall, he told you that
yesterday. Sergeant Norris is six-feet tall. I didn’t ask Jeff Fisher how tall he
was, but you were able to observe him. He said a tall man. Detective Sendek first
wanted to tell you that Brandon Williams is the same height he is until, once
again, he had to be shown a piece of paper he completed and tell you that it said
Brandon Williams was five-feet-eight-inches tall. So ask yourself if somebody
the size of Jeff Fisher is going to describe somebody who is five-feet-eight-inches
tall as tall.
Appellant’s Op. Br. Appendix at A45.
8
error in admitting the evidence is harmless.”14 Harmless error and plain error are
distinct but analogous doctrines. Harmless error is “[a]ny error, defect, irregularity
or variance which does not affect substantial rights.”15 Whereas plain error
concerns “errors or defects affecting substantial rights [that] may be noticed
although they were not brought to the attention of the court.”16 “[T]he difference
between harmless error and plain error is that for plain error, ‘it is the defendant
who bears the burden of persuasion with respect to prejudice.’”17 Under a
harmless error analysis, “[t]he defendant has the initial burden of demonstrating
error,” and then the State has the burden to demonstrate that any error was
harmless beyond a reasonable doubt.18 Even assuming error in the cumulative use
of the dispatch call, that error was harmless.
In Sanabria v. State, we reversed a conviction where a dispatcher’s out-of-
court statements were introduced, and we “determined that the trial judge in
Sanabria had erred by failing to provide a limiting instruction and in admitting
testimony in violation of the Confrontation Clause of the Sixth Amendment.”19
This was because the out-of-court statements in that case were “not merely
14
Johnson, 587 A.2d at 451 (quoting Collins v. State, 420 A.2d 170, 177 (Del. 1980)).
15
Super. Ct. Crim. R. 52(a).
16
Super. Ct. Crim. R. 52(b).
17
Bullock v. State, 775 A.2d 1043, 1055 n.43 (Del. 2001) (Veasey, C.J., concurring) (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)).
18
Dawson v. State, 608 A.2d 1201, 1204 (Del. 1992) (citing Chapman v. California, 386 U.S.
18, 24, 26 (1967)).
19
Holmes v. State, 11 A.3d 227, 2010 WL 5043910, at *5 (Del. 2010) (citing Sanabria, 974
A.2d at 116–20).
9
cumulative evidence,” but instead were “a principal factor in [the] conviction.”20
Unlike Sanabria, the statements relating to the alleged attempted burglary at the
BP station were not a principal factor in Williams’s conviction. Rather, the record
shows that the sequence of events and timeline were the principal factors
supporting Williams’ conviction.
At roughly 11 p.m., Fisher heard a noise in his office and saw a tall male
running from his home. By 11:14, Williams had entered the Rite Aid and
purchased a beverage three minutes later. Fisher’s wife called 911 at 11:18, and
dispatch relayed information about the Fisher burglary at 11:20. Approximately
seven minutes later, dispatch advised officers that there was a disturbance
involving a tall, white male at the BP station, which was a quarter mile away from
the Fishers’ home. Officer Torres went to the BP station, where he first saw
Williams at 11:36. Williams fled and a foot chase ensued. Officers ultimately
captured Williams at 11:44 p.m.
In addition to this timeline, Williams was found at the time of his arrest with
Fisher’s wallet, driver’s license, and credit cards. Williams used one of the cards
to make an unauthorized purchase as shown by the surveillance video and the
receipt. Evidence of his flight was also relevant to show consciousness of guilt.
This evidence was sufficient to sustain the conviction. Because the dispatch
20
Sanabria, 974 A.2d at 120.
10
statement about the events at the BP station was not a principal factor in the
conviction, any error in the admission of the dispatch statements was harmless.
Williams next claims that the trial court unfairly bolstered the testimony of a
police officer when it issued an expert-witness jury instruction because there was
no expert witness in the case. “Implicit in every jury instruction is the fundamental
principle that the instruction applies to the specific facts in that particular case and
contains an accurate statement of the law.”21 This Court will reverse only “if the
instructions ‘undermined . . . the jury’s ability to intelligently perform its duty in
returning a verdict.’”22
In Smith v. State, we outlined the standard to determine the propriety of a
jury charge:
In evaluating the propriety of a jury charge, we view the jury
charge as a whole with no individual statement read in a
vacuum. “The standard is not one of perfection; some
inaccuracies and inaptness in statement are to be expected in
any charge.” Even where there are some inaccuracies in a
charge, we will reverse only if the alleged deficiency in the jury
instructions undermined the jury’s ability to “intelligently
perform its duty in returning a verdict.”23
Here, the trial judge gave an expert witness instruction, providing:
21
Bullock v. State, 775 A.2d 1043, 1053 (Del. 2001).
22
Moye v. State, 988 A.2d 937, 2010 WL 376872, at *2 (Del. 2010) (omission in original)
(quoting Bullock, 775 A.2d at 1047).
23
Smith v. State, 913 A.2d 1197, 1241–42 (Del. 2006) (footnotes and internal quotation marks
omitted) (quoting Bullock, 775 A.2d at 1047, 1056 n.47; Floray v. State, 720 A.2d 1132, 1138
(Del. 1998); Sirmans v. Penn, 588 A.2d 1103, 1104 (Del. 1991)).
11
A witness who has special knowledge in a particular science,
profession or subject is permitted to testify about that
knowledge and to express opinions within the witness’s field of
expertise to aid you in deciding the issues. You should give
expert testimony the weight you consider appropriate. In
addition to the factors already mentioned for weighing the
testimony of any other witness, you may consider the expert’s
qualifications, the reasons for the expert opinion, and the
reliability of the information assumptions upon which it is
based. Also, you must not give any more or less credit to a law
officer’s testimony simply because he is a law officer.24
Williams did not object to this instruction. Nor would an objection have been
sustained if made. The record demonstrates that the trial court did qualify
Corporal Breitigan as an expert witness to testify about the proper handling of a
K-9 police dog.
Prior to Corporal Breitigan’s testimony, defense counsel argued that
Corporal Breitigan was not listed as an expert witness in violation of the rules of
discovery. The trial court overruled the objection, explaining that it did not “see
any violation of a rule of discovery” or “any prejudice assuming that there were a
violation.”25 The trial court further ruled that it was “satisfied” that Corporal
Breitigan could “testify about the dog’s training and what [the dog] did.”26 He did
so. Because Corporal Breitigan was qualified as an expert and testified as one, the
24
Appellant’s Op. Br. Appendix at A52.
25
Id. at A18.
26
Id.
12
jury instruction concerning his expert testimony could not have been erroneous or
prejudicial. Thus, Williams’ second claim also lacks merit.
Conclusion
The judgment of the Superior Court is AFFIRMED.
13