Turner v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MAX TURNER, §
§ No. 669, 2014
Defendant Below, §
Appellant, §
§ Court Below – Superior Court
v. § of the State of Delaware, in
§ and for New Castle County
STATE OF DELAWARE, §
§ Cr. ID. Nos. 1301011443A and
§ 1301011443B
Plaintiff Below, §
Appellee. §
Submitted: November 4, 2015
Decided: November 9, 2015
Before STRINE, Chief Justice; VALIHURA, and SEITZ, Justices.
ORDER
This 9th day of November 2015, it appears to the Court that:
(1) On January 22, 2013, a New Castle County grand jury indicted Max
Turner on charges of second degree murder (11 Del. C. § 635), second degree
assault (11 Del. C. § 612), first degree reckless endangerment (11 Del. C. § 604),
three counts of possession of a firearm during the commission of a felony
(“PFDCF” 11 Del. C. § 1447A), and possession of a firearm by a person prohibited
(“PFBPP” 11 Del. C. § 1448). The Superior Court later severed the PFBPP
charge. The charges arose from the tragic shooting on July 24, 2012, of two
people, one of whom died, who were innocent bystanders in a street shooting.
(2) After a seven day trial in the Superior Court in June, 2014, the jury
found Turner guilty of all charges. The trial judge later found Turner guilty of
PFBPP. The Superior Court sentenced Turner to a total of seventy eight years at
Level V, suspended after sixty nine years for decreasing levels of supervision.
(3) Turner appeals his convictions and raises two claims of error. First,
Turner claims the Superior Court abused its discretion when it admitted into
evidence a 9 millimeter handgun found on a third party, Iban Rice, several hours
after the shooting. According to Turner, there was insufficient evidence to tie the 9
millimeter handgun to the shooting and its admission was prejudicial to the
defense.
(4) Relevancy and prejudice determinations are within the sound
discretion of the trial court, and will not be reversed absent a clear abuse of
discretion. 1 The Superior Court did not abuse its discretion. Police found the 9
millimeter handgun on Iban Rice within hours and blocks of the shooting. An
eyewitness placed Iban Rice near Turner at the time of the shooting. At the crime
scene police found 9 millimeter shell casings and a 9 millimeter projectile. Within
hours of the shooting, Turner sent text messages to his girlfriend that police had
arrested Iban Rice with “tha gun” and Turner “might b goin for a while.”2 There
1
Smith v. State, 913 A.2d 1197, 1232 (Del. 2006).
2
App. to Opening Br. at 141 (State’s Exhibit 90).
2
was ample evidence to connect the 9 millimeter handgun to the crime scene, and
therefore the Superior Court properly admitted the handgun as evidence.
(5) Turner also claims that the Superior Court erred by not giving the jury
a specific unanimity instruction under Probst v. State. 3 Because Turner did not
raise the issue in the Superior Court, we review only for plain error. Plain error
must be “so clearly prejudicial to substantial rights as to jeopardize the fairness and
integrity of the trial process.” 4 The defects must be plain and clear from the
record, and must be of a “basic, serious and fundamental” character such that they
deprive the defendant of a fundamental right or reflect manifest injustice. 5
(6) The absence of a specific unanimity instruction was not plain error.
The jury was given a general unanimity instruction, which is usually sufficient.6
The Superior Court also reinforced the unanimity requirement when charging the
jury on accomplice liability. 7 Finally, unlike Probst, where the jury could have
determined guilt based on multiple shooters involved in different incidents
involving conceptually different actions, the State in Turner’s case proceeded on a
theory that there were two shooters (Turner and Iban Rice) involved with one
3
547 A.2d 114, 119 (Del. 1988).
4
Turner v. State, 5 A.3d 612, 615 (Del. 2010) (citing Wainwright v. State, 504 A.2d 1096, 1100
(Del. 1984)).
5
Blake v. State, 65 A.3d 557, 562 (Del. 2013) (citing Wainwright, 504 A.2d at 1100).
6
App. to Opening Br. at 153 (Jury Instructions); Dougherty v. State, 21 A.3d 1, 4 (Del. 2011).
7
App.to Opening Br. at 156-57 (Jury Instructions).
3
shooting incident, and Turner could be convicted either as a principal or an
accomplice. Therefore, a specific unanimity jury instruction was not required.
NOW, THEREFORE IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
4