Thompson v. State ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
AARON THOMPSON, §
§ No. 454, 2017
Defendant Below, §
Appellant, § Court Below: Superior Court of
§ the State of Delaware
v. §
§ I.D. No. 1602016732 (N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: December 12, 2018
Decided: February 21, 2019
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Elise K. Wolpert, Esquire (Argued), and Eugene J. Maurer, Jr., Esquire, Eugene J.
Maurer, Jr., P.A., Wilmington, Delaware, for Appellant, Aaron Thompson.
Maria T. Knoll, Esquire, Deputy Attorney General, Wilmington, Delaware, for
Appellee, State of Delaware.
VAUGHN, Justice:
I. INTRODUCTION
Appellant, Aaron Thompson, appeals from a Superior Court jury verdict
finding him guilty of two counts of Murder in the First Degree, two counts of
Possession of a Firearm During the Commission of a Felony, and Conspiracy in the
First Degree. The charges arose from the double homicide of Joseph and Olga
Connell, who were shot to death on September 22, 2013. The State’s theory of the
case at trial was that Mr. Connell’s business partner, Chris Rivers, paid to have the
Connells killed so he could collect on an insurance policy listing Mr. Connell as the
insured and Rivers as the beneficiary. The theory was that Rivers paid Joshua Bey,
who in turn hired Dominique Benson and Thompson to carry out the murders. The
success of the State’s theory at Thompson’s trial largely depended on the testimony
and credibility of Bey. Thompson contended throughout the trial that Bey was
lying and made up the connection with Thompson to get himself a favorable plea
deal.
Thompson makes two claims on appeal. First, he contends that two
statements by the State during its rebuttal argument constituted prosecutorial
misconduct that undermined the fairness of the trial. According to Thompson, the
first statement in question was one in which the State argued facts that were not
supported by record. The second statement, he argues, was one that improperly
appealed to the jury’s emotion. Second, he contends that the trial court abused its
1
discretion in allowing Bey’s recorded statement to the police to be played for the
jury following his testimony, arguing that this was inadmissible hearsay not subject
to an exception.
We find that the Superior Court should be affirmed on both claims. First, we
conclude that the two statements made by the State during its rebuttal do not rise to
the level of prosecutorial misconduct. Second, we conclude that Bey’s recorded
statement to the police was admissible under Delaware Rule of Evidence 106, the
rule of completeness.
II. FACTS AND PROCEDURAL HISTORY
Rivers and Mr. Connell were joint owners of C&S Automotive Repair. In
October 2012, Rivers and Mr. Connell secured a nearly one million–dollar mortgage
in connection with their business. As part of that transaction, they were both
required to purchase life insurance in the amount of $977,500, with the other partner
named as the beneficiary, so that the surviving partner could pay off the mortgage if
one of them were to die.
At approximately 1:30 a.m., on September 22, 2013, New Castle County
police officers responded to a reported shooting at the Connells’ residence in
Wilmington. The officers discovered that the Connells had been shot and killed.
After an extensive investigation, the police arrested Rivers and charged him with
their murders.
2
Early on in the investigation, on October 4, 2013, Bey was questioned by
Detective James Leonard because Rivers’s phone records revealed that, around the
time of the murders, he had deleted certain communications with a phone number
associated with Bey’s girlfriend. Initially, Bey declined knowing anyone by the
name of Chris Rivers, but after the detective confronted him with Rivers’s phone
records, Bey admitted that Rivers was his mechanic. During the questioning, it
became apparent that Bey was not telling the entire truth with regard to his contact
with Rivers around the time of the murders. As for his location on the night of the
murders, Bey stated that he worked an overnight shift at a department store (from
approximately 10:00 p.m. to 6:00 a.m.). His timesheet and video surveillance of
the parking lot corroborated Bey’s statement that he was at work at the time of the
murders.
Detective Leonard questioned Bey again on October 24, 2013, and this time
Bey admitted he was Rivers’s drug dealer. The next day, Bey was arrested for
providing a false statement to the police. This arrest violated the terms of a
probationary term he was serving and led to a violation of probation proceeding
against him.
After almost ten months of incarceration, while awaiting trial on the charge of
providing a false statement to the police, and moments before trial was to start, Bey
agreed to provide information about the murders in exchange for a deal from the
3
State. On August 14, 2014, Bey gave a proffer that implicated not only himself,
but also Rivers and Benson (the “August 14 proffer”). At that time, however, Bey
declined to enter into an agreement with the State.
Bey was arrested for the Connells’ murders the following month. He then
agreed to cooperate. In exchange for his cooperation, the State made a plea offer
involving a plea of guilty to Conspiracy in the First Degree and a finding that he had
violated his probation. On September 5, 2014, after becoming a cooperating
witness, Bey provided his fourth and final statement to the police (the “September 5
statement”).
At Thompson’s trial, Bey testified for the State, and his testimony provided
the main narrative of the Connells’ murders. He explained that shortly after
meeting Rivers in 2012, he started selling him prescription pills and cocaine and that
in 2013, Rivers asked him to hire someone to kill the Connells. Bey and Rivers
negotiated over the price, eventually settling on $60,000. Rivers agreed and
arranged to pay half up front and the other half in installments. Bey told Rivers
that he needed $5,000 immediately, which Rivers paid in cash.
Bey testified that he hoped to make money from this transaction by hiring
someone else to do the murders for less. Bey asked Benson to do it and brought
him to C&S to see the shop and meet Rivers. After learning from Rivers that Bey
had lied to him about how much Rivers was willing to spend (so that he could keep
4
the extra for himself), Benson nonetheless agreed to find someone else to do it for
them. As the planning progressed, Bey was under the impression that Benson
would commit the murders, but at some point, Benson told Bey that he would ask
Thompson to assist him.
Bey further testified that Benson’s cousin, Willis Rollins, was also asked to
carry out their plan. Benson arranged for Bey and Rollins to meet at a restaurant
near the Connells’ residence so that Bey could show Rollins where the Connells
lived. Bey testified that Thompson arrived at the restaurant and handed Rollins a
gun with a silencer. After showing Rollins the path to take to get to the Connells’
residence, Bey went back to his car and waited for Rivers to provide updates as to
their location. The next day, Bey called Benson to ask what happened. Benson
stated that Rollins “froze up” and did not go through with the plan.1
Bey then testified about a second attempt to kill the Connells. Benson told
Bey, who in turn told Rivers, that they were having trouble finding a car to use.
Rivers offered to let them drive his truck, a Chevrolet Tahoe, so Bey picked it up at
C&S and then met Benson and Thompson in a parking lot behind his mother’s house.
Bey testified that Benson and Thompson got into the car and drove off. But the
Connells were not killed this time either. Bey explained that because Rivers’s car
was equipped with On Star, Thompson was concerned about driving it.
1
App. to Appellant’s Opening Br. at A170.
5
On September 22, 2013, the night of the murders, shortly before beginning his
overnight shift at the department store, Bey learned from Rivers that the Connells
would be returning home from dinner in about thirty minutes. Bey relayed this
information to Benson. Bey did not speak to Benson again until after his shift
ended the next morning. When Bey first called Benson the next morning to ask
what happened, Benson said he needed to call Thompson to find out. A few hours
later, Bey received a call from Benson saying that it was official and to “go collect.”2
Apart from the initial $5,000 payment, Bey did not receive any other money
prior to the murders. After the murders, Rivers eventually paid another $5,000 to
Bey on September 26. Bey testified that after he received the money from Rivers,
he “called up Dom [Benson]” and then met with Benson, who was accompanied by
Rollins, at a park near Benson’s house to give Benson this $5,000 payment. 3
According to Bey, Benson refused the payment. Later that day, Bey received a
phone call from Benson instructing him to meet with Thompson. Bey went to
Thompson’s house and gave him the $5,000 and explained that Rivers would be
receiving more money from an insurance payout.
On cross-examination, Thompson confronted Bey with several statements
from his prior statements to the police that were inconsistent with his testimony at
2
Id. at A174.
3
Id. at A175, A175-76.
6
trial. A substantial portion of Bey’s cross-examination involved Thompson’s
counsel confronting Bey with several statements he made in the August 14 proffer
that were inconsistent with his trial testimony. He also questioned Bey about two
discrete points in the September 5 statement that were inconsistent with his trial
testimony.
Before beginning its redirect, the State announced that it intended to play
Bey’s September 5 statement for the jury as a prior consistent statement under
Delaware Rule of Evidence 801(d)(1)(B) to rehabilitate his credibility.4 Thompson
objected, arguing that this exception did not apply because Bey’s motive to lie
existed prior to the September 5 statement. The trial court heard arguments about
this issue following Bey’s cross-examination. The State explained that it intended
to play the September 5 statement, and not the August 14 proffer, because it had
higher quality audio. Thompson admitted that the August 14 proffer and the
September 5 statement were largely consistent with each other, but he maintained
that both were made after Thompson’s motive to lie arose. And although the trial
court asked whether the September 5 statement was independently admissible under
4
At the time of trial, Rule 801(d)(1)(B) provided that a statement is not hearsay if the declarant
testifies at trial and is subject to cross-examination about the statement and the statement is
“consistent with his testimony and is offered to rebut an express or implied charge against him of
recent fabrication or improper influence or motive.” This rule was amended, effective January 1,
2018, such that this exception applies only in civil cases. See D.R.E. 801(d)(1)(B). The rule now
provides that for criminal cases, the admissibility of prior consistent statements is governed by 11
Del. C. § 3507. See id. 801(d)(1)(C).
7
either 11 Del. C. § 3507 or Delaware Rule of Evidence 106, the parties focused their
arguments on Rule 801(d)(1)(B).
The morning after the hearing, the trial court ruled from the bench that the
September 5 statement was admissible under both Rule 801(d)(1)(B) and 11 Del. C.
§ 3507. The trial court explained that Thompson attacked Bey’s credibility by
showing that his motives were improper—“they were to get a deal, to save himself,
and to curry whatever favor he had in order to minimize his own legal difficulties”—
and, therefore, found that Bey’s prior consistent statement, offered to rehabilitate his
credibility, “fit squarely within Rule 801(d)(1)(B).” 5 As to § 3507, the court
explained that because Thompson cross-examined Bey about the statement, the prior
statement was admissible under that statute. In light of this ruling, Thompson
agreed to allow the State to introduce the September 5 statement through Detective
Leonard. After Detective Leonard set the foundation for the statement, it was
played in its entirety for the jury.
In addition to Bey’s (and other witnesses’) testimony, the State presented
phone records and cellular location information that generally was consistent with,
and circumstantially corroborated, Bey’s testimony. The State presented phone
records of all persons involved in the murders. Some of this evidence, at least on
its face, contradicted certain portions of Bey’s testimony. Of particular concern
5
App. to Appellant’s Opening Br. at A207-08.
8
was Bey’s testimony as to whom he called a few days after the murders. Bey
testified that on September 26, he called Benson and then met with Benson, who was
accompanied by Rollins, at a park near Benson’s house. The phone records,
however, showed that there were multiple phone calls between Rollins’s phone and
Bey’s phone that day, but none between Bey’s and Benson’s. The State presented
evidence that Benson and his girlfriend shared a phone and that during the day she
typically took that phone with her to work, meaning Benson ordinarily did not have
access to the phone during the daytime.
Ultimately, the jury found Thompson guilty of all charges. He was
sentenced to two natural life sentences plus forty-five years at Level V incarceration.
This is Thompson’s direct appeal.
III. DISCUSSION
Thompson’s first claim is that two separate incidents of prosecutorial
misconduct occurred during the State’s rebuttal argument and that this misconduct
prejudiced him and compromised the integrity of the trial.
The standard of review for claims of prosecutorial misconduct depends on
whether the issue was fairly presented below.6 “If defense counsel raised a timely
and pertinent objection to prosecutorial misconduct at trial, or if the trial judge
intervened and considered the issue sua sponte, we essentially review for harmless
6
Baker v. State, 906 A.2d 139, 148 (Del. 2006) (en banc).
9
error.”7 If, on the other hand, defense counsel failed to object and the trial judge
did not intervene sua sponte, “we review only for plain error.”8 Regardless of the
standard of review, however, we must first conduct a de novo review to determine
whether misconduct actually occurred. 9 If no misconduct occurred, then the
analysis ends under either standard.10
In Thompson’s closing argument, he argued that Bey’s testimony was false
and that Bey had made up his entire story. In its rebuttal, the State argued, among
other things, that, based on Bey’s testimony and the evidence indicating that Benson
did not have access to his phone during the daytime, Benson must have been
communicating with Bey using Rollins’s phone. Thompson objected to this as
beyond the scope of the closing argument his counsel had made. The Superior
Court overruled the objection. On appeal, Thompson contends that the State
improperly argued facts that were not supported by the evidence when it “suggested
that Bey was actually speaking to Benson when he called Rollins on September 26,
2013—the day on which Bey attempted to give Benson a partial $5,000 payment.”11
We find that the State’s argument concerning Bey’s phone calls was supported
by the record and, therefore, no misconduct occurred. The State argued that Bey’s
7
Id. (internal quotation marks omitted).
8
Id.9
Id. at 148, 150.
10
Id.11
Appellant’s Opening Br. at 20.
10
testimony, that he called Benson on September 26, 2013, was consistent with the
phone records even though the records indicated that Bey actually called Rollins’s
phone on that day. Bey testified at trial that on September 26, he “called up Dom
[Benson]” and that he met with Benson, who was accompanied by Rollins, at a park
near Benson’s house. 12 That testimony alone supports the State’s argument.
However, there was also testimony at trial that established that Benson’s girlfriend
worked during the day and that when she worked she took their phone (that is,
Benson’s phone for the purposes of the phone records) to work with her. Thus,
record evidence supported the reasonable inference that Benson likely did not have
access to his phone at this time (because it would have been with his girlfriend) and
that, as a substitute, Benson would use Rollins’s phone to contact Bey because he
was with Rollins at that time. Because the State’s argument was a reasonable
inference supported by the record, it cannot and did not constitute misconduct.
In his closing argument, Thompson’s counsel also tried to impugn Bey’s
motive for testifying against Thompson by suggesting that Bey was getting a
sweetheart deal in exchange for his testimony. The second statement that
Thompson complained of arose in that context. During the State’s rebuttal
argument, the prosecutor said: “He [Bey] is a flipped co-defendant. He is a snitch.
He is a rat. All of those things. He will serve eight-and-a-half years in prison,
12
App. to Appellant’s Opening Br. at A175, A175-76.
11
and then he will get out. And what will happen to him then?” 13 Thompson
objected and said he would address the objection later. The court responded,
saying “[l]et her finish her point.” 14 The prosecutor then moved on to another
topic. After the State completed is rebuttal, Thompson’s counsel renewed the
objection and asked for a mistrial, arguing that the prosecutor’s statement created a
clear and prejudicial inference that Bey would be at risk of personal danger upon his
release from prison. The State argued that Bey would experience other adverse
circumstances upon his release from prison and that to “the extent it causes a
problem,” the court should give a curative instruction informing the jury to disregard
the statement. 15 The court denied the request for a mistrial and Thompson’s
counsel declined a curative instruction. We find that the trial court’s denial of
Thompson’s request for a mistrial was not error. We agree with the State that the
statement was ambiguous and did not rise to the level of prosecutorial misconduct.
Rather than being an attempt to evoke sympathy, the more plausible explanation was
that the State was trying to rebut the defense’s continual attacks on Bey’s credibility
and suggestion that he was getting a good deal in exchange for his testimony. In
essence, the State was pointing out that Bey’s decision to testify was a double-edged
sword: Although he got a shorter prison sentence, he also risked being labeled a
13
Id. at A306.
14
Id.15
Id. at A308.
12
snitch. And even if the statement is viewed as improper, it did not cause prejudice
to Thompson sufficient to justify the granting of a mistrial.
Thompson’s second claim on appeal involves an issue of admissibility of
evidence, which we review under the abuse of discretion standard.16 “An abuse of
discretion occurs when a court has exceeded the bounds of reason in light of the
circumstances, or so ignored recognized rules of law or practice so as to produce
injustice.”17 The Superior Court found that Bey’s September 5 statement, played
to the jury following Bey’s testimony, was admissible under both Delaware Rule of
Evidence 801(d)(1)(B) and 11 Del. C. § 3507. Although the court asked the parties
about the applicability of Rule 106, it did not expressly base its ultimate decision on
that rule. For the following reasons, we find that the entirety of Bey’s September
5 statement was admissible under Rule 106 to put into context the various
inconsistent statements brought out by Thompson on cross-examination.
Rule 106 codifies the common-law rule of completeness, and its purpose is
“to prevent misleading impressions which often result from taking matters out of
context.”18 In certain circumstances, Rule 106 can render otherwise inadmissible
evidence, such as hearsay, admissible.19 It states, “If a party introduces all or part
16
McNair v. State, 990 A.2d 398, 401 (Del. 2010).
17
Id.18
Flamer v. State, 953 A.2d 130, 135 (Del. 2008) (internal quotation marks omitted).
19
United States v. Sutton, 801 F.2d 1346, 1368 (D.C. Cir. 1986). Although in Banther v. State,
823 A.2d 467, 487 (Del. 2003) (en banc), we stated that “D.R.E. 106 does not make otherwise
13
of a writing or recorded statement, an adverse party may require the introduction, at
that time, of any other part—or any other writing or recorded statement—that in
fairness ought to be considered at the same time.”20 Importantly, Rule 106 “applies
to an oral quotation from a part of a document,” and “the offer of the document itself,
in whole or in part, is unnecessary to the application of the Rule.”21 Therefore,
when Thompson questioned Bey about specific parts of the September 5 statement
by quoting portions of his statement, Thompson “introduce[d]” part of the
September 5 statement for purposes of Rule 106.22
“Once a party introduces a portion of a recording or writing, the burden shifts
to the other party to require the admission of all or part of the remainder of the
recording or writing which ought in fairness be considered contemporaneously with
inadmissible evidence admissible,” that was in the context of evidence being inadmissible under
Rule 403, which trumps all other evidence rules. The rule against hearsay, Rule 802, says,
“Hearsay is not admissible except as provided by law or by these Rules.” Thus, Rule 106, as part
of “these Rules,” can authorize the admission of hearsay in certain circumstances. See Sutton,
801 F.2d at 1368 (interpreting the analogous federal rule and explaining that “every major rule of
exclusion in the Federal Rules of Evidence contains the proviso, ‘except as otherwise provided by
these rules,’ which indicates ‘that the draftsmen knew of the need to provide for relationships
between rules and were familiar with a technique for doing this,’” and “[t]here is no such proviso
in Rule 106, which indicates that Rule 106 should not be so restrictively construed” (footnote
omitted) (first quoting Fed. R. Evid. 402, 501, 602, 613(b), 704, 802, 806, 901(b)(1), 1002; and
then quoting C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5078, at 376
(1977 & 1986 Supp.))). Moreover, for a prior case illustrating the law covered by the Delaware
rule, the Editors’ Notes for Rule 106 cite to Lowber v. State, 100 A. 322, 324 (Del. 1917), where
this Court held that what would have been hearsay under the modern rules should have been
admitted at trial so that the whole statement could have been considered.
20
D.R.E. 106.
21
Burke v. State, 484 A.2d 490, 497 (Del. 1984).
22
See id.14
it.”23 Rule 106 is further circumscribed by two qualifications: “The portions sought
to be admitted (1) must be relevant to the issues and (2) only those parts which
qualify or explain the subject matter of the portion offered by the opponent need be
admitted.”24
Where, as here, the cross-examiner’s goal is to impeach the credibility of the
testifying witness by arguing that the witness’s whole story is made up and does this
by bringing up isolated examples of inconsistencies with a prior statement that are
insignificant to the whole story, it is appropriate under Rule 106 for the jury to hear
the entire prior statement to properly assess the witness’s credibility. Thompson’s
line of attack was that since Bey could not keep his story straight (or consistent), he
must have made the whole thing up. The recorded statement, however, was largely
consistent with Bey’s trial testimony. Therefore, playing the entire statement
countered Thompson’s argument that Bey was making everything up.
For these reasons, and because the State sought to play only one of
Thompson’s recorded statements, we do not think that there was any impermissible
bolstering of the witness or needless presentation of cumulative evidence.
Although Rule 106 does not always require the admission of an entire recorded
23
Flamer, 953 A.2d at 135 (internal quotation marks omitted).
24
Id. (internal quotation marks omitted).
15
statement, the Superior Court did not abuse its discretion in admitting the entirety of
the September 5 statement.
Since we find that Bey’s September 5 statement was admissible under Rule
106, we need not consider its admissibility under Rule 801(d)(1)(B) or § 3507.
IV. CONCLUSION
For the foregoing reasons, the Superior Court is affirmed.
16