Clay v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
CHRISTOPHER CLAY, §
§ No. 8, 2016
Defendant Below, §
Appellant/Cross-Appellee, § Court Below: Superior Court of
§ the State of Delaware
v. §
§ ID No. 1408007714A (S)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee/Cross-Appellant. §
§
§
Submitted: April 12, 2017
Decided: June 1, 2017
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
Upon appeal from the Superior Court. AFFIRMED in part, REVERSED in part.
Michael W. Andrew, Esquire, Law Office of Mooney & Andrew, P.A., Georgetown,
Delaware, for Appellant/Cross-Appellee, Christopher Clay.
Kathryn J. Garrison, Esquire, Delaware Department of Justice, Georgetown,
Delaware, for Appellee/Cross-Appellant, State of Delaware.
VAUGHN, Justice:
I. INTRODUCTION
Defendant-below/Appellant Christopher Clay appeals from a Superior Court
jury verdict finding him guilty of Robbery in the First Degree, Possession of a
Firearm During the Commission of a Felony, Tampering with Physical Evidence,
Conspiracy in the Second Degree, and Resisting Arrest. He asserts three claims on
appeal. First, he claims that the trial court abused its discretion by denying his
motion to sever his trial from the trial of his co-defendants. Second, he claims that
the trial court erred by denying his motion for judgment of acquittal on all charges.
Finally, he claims that the trial court erred by finding the police possessed a
reasonable, articulable suspicion to seize him and probable cause to arrest him. On
cross-appeal, the State claims that the Superior Court abused its discretion by
requiring the State to provide the defendant with a redacted copy of a Department of
Justice intake document and a copy of the prosecutor’s notes from witness interviews
under Superior Court Criminal Rule 26.2.
For the reasons which follow, we find that the trial court abused its discretion
when it denied Clay’s motion for judgment of acquittal on the Tampering with
Physical Evidence charge, but reject his remaining claims. We also find that the
trial court erred by requiring the State to provide a copy of the Department of
Justice’s intake document and copies of the prosecutor’s notes under Rule 26.2.
1
The judgment of the Superior Court is, therefore, affirmed in part and reversed in
part.
II. FACTS AND PROCEDURAL HISTORY
On August 9, 2014, an employee of the Dollar General store in Georgetown,
Delaware was taking a register till to her office shortly before 9:00 p.m. As she
entered her office, a man wearing a black hat and a t-shirt that said “Security” on the
back approached her in her office while displaying a black handgun. He ordered
her to give him the money from the register till she had and another till that was in
the office. After she did so, he told her to get on the ground. The man then exited
the store and the employee called the police.
Shortly after the robbery occurred, Corporal Joel Diaz of the Georgetown
Police Department observed three black males run across the street. Corporal Diaz
testified that his attention was initially drawn to the men because a series of robberies
had recently taken place in the area. As Corporal Diaz continued to observe the
men, a call came over his radio that a robbery had just taken place at the Dollar
General store, which was a quarter of a mile away from his location. The radio call
described the suspect as a black male dressed in all black and possibly armed with a
handgun. Corporal Diaz realized that one of the three men that he was observing
was dressed in all black. The officer approached the men, rolled down his window
and asked them to stop. At first, the men ignored him, but when Corporal Diaz
2
stopped and exited his vehicle, one of the men, later identified as Christopher Clay,
ran. Corporal Diaz radioed to other officers to pursue Clay and ordered the other
two men, later identified as Maurice C. Land and Booker T. Martin, to stop.
Corporal Diaz and another Georgetown Police officer, Officer Derrick
Calloway, were eventually able to detain Land and Martin. As Land was getting
on the ground, he removed his shirt, which was black with “Security” written across
the back in yellow letters. The officers also found a black baseball cap on the
sidewalk near where Land had been standing. At the time of his arrest, Land had a
latex glove and $81 in cash on his person. Martin had $897 in cash in his pocket
in three bundles that were folded and organized by denomination.
While Corporal Diaz and Officer Calloway were with Land and Martin,
Officer John Wilson was responding to Corporal Diaz’s call to pursue Clay.
Officer Wilson saw Clay running in the opposite direction of his car. He exited his
vehicle and began chasing Clay on foot. Clay continued to run, and Officer Wilson
observed him raise his hand into the air. Officer Wilson testified:
I didn’t know if [Clay] was going to run like he was going
to turn or if he was throwing something. And I thought -
- I did think I saw something leave his hand, but the lights
are - - it was dark; my overheads on my police car are on;
everything’s flashing. 1
1
App. to Appellee’s Answering Br. at 57.
3
Clay eventually got into a parked vehicle, and Officer Wilson ordered him out of the
vehicle at gunpoint. Clay had $280 in cash in his pocket, folded and organized by
denomination, and $1.17 in change. Officers later recovered a black handgun on
the opposite side of a fence near where Officer Wilson observed Clay making a
throwing motion.
Security footage from the Dollar General store showed Clay entering the store
with Land shortly before 9:00 p.m. Land went to the back of the store and into the
office, where surveillance cameras recorded him putting on a clear glove and taking
money out of an employee’s wallet. When the employee entered the office, Land
pointed a handgun at her and demanded the money from the register tills. He then
made her get on the ground, and he left the office. As Land was in the back of the
store, Clay placed several items on the counter. Four seconds after Land left the
store, Clay followed without purchasing any of those items.
On November 10, 2014, Clay was indicted on charges of Robbery in the First
Degree, two counts of Possession of a Firearm During the Commission of a Felony
(“PFDCF”), Aggravated Menacing, Conspiracy in the Second Degree, Possession
of a Firearm by a Person Prohibited (“PFBPP”), Possession of Ammunition by a
Person Prohibited (“PABPP”), Receiving a Stolen Firearm, Tampering with
Physical Evidence, and Resisting Arrest. The Superior Court scheduled a joint trial
for Clay and his two co-defendants. Before trial, Clay filed a motion to suppress
4
evidence. After a hearing, the Superior Court denied Clay’s motion. Clay filed
motions to sever his case from Land and Martin and to sever his Person Prohibited
charges. The court granted Clay’s request to sever the charges, but denied his
request to sever his trial from his co-defendants. The State then filed an amended
indictment charging Clay with Robbery in the First Degree, PFDCF, Conspiracy in
the Second Degree, Tampering with Physical Evidence, and Resisting Arrest. Clay
filed another motion to suppress which was also denied following a hearing.
Trial went forward and at the conclusion of the State’s case, Clay moved for
judgment of acquittal on all charges. The Superior Court denied Clay’s motion,
and at the end of the trial, the jury found Clay guilty of Robbery in the First Degree,
PFDCF, Tampering with Physical Evidence, Conspiracy in the Second Degree, and
Resisting Arrest. Clay was sentenced to forty years and six months of Level V
incarceration followed by probation. He then filed a notice of appeal with this
Court and the State filed its notice of cross-appeal.
III. DISCUSSION
A. The Trial Court Did Not Abuse its Discretion by Denying Clay’s Motion to
Sever His Trial from the Trial of his Co-defendants
Clay’s first claim is that the trial court abused its discretion by denying his
motion to sever his trial from his co-defendants’ trial. Motions to sever a
defendant’s trial from the trial of co-defendants “lie in the sound discretion of the
trial court and will not be overturned, absent a showing of prejudice by the
5
defendant.”2 This Court “review[s] such motions to determine only if, under the
specific facts and circumstances of the case before us, the trial court abused its
discretion in denying the motion.” 3
As a general rule, the factors to be considered when
determining whether a motion for a separate trial should
be granted are: [1] problems involving co-defendant’s
extra-judicial statements; [2] an absence of substantial
independent competent evidence of the movant’s guilt; [3]
antagonistic defenses as between the co-defendant and the
movant; and [4] difficulty in segregating the State’s
evidence as between the co-defendant and the movant.4
Clay contends that the second and fourth factors are applicable. He claims
that the State did not offer substantial independent competent evidence of his guilt,
and that the jury had difficulty segregating the evidence between Clay and his co-
defendant, Land. Both of Clay’s claims lack merit.
The State presented evidence against Clay at the joint trial that would have
been admissible against Clay had he been tried separately from Land. The video
surveillance from the Dollar General store showed Clay entering the store with Land
and leaving the store just after Land without purchasing the items he had placed on
the counter. A police officer also saw Clay walking across the street with Land
shortly after the robbery, and when the officer approached the men, Clay ran. Clay
2
Skinner v. State, 575 A.2d 1108, 1119 (Del. 1990).
3
Floudiotis v. State, 726 A.2d 1196, 1210 (Del. 1999).
4
Manley v. State, 709 A.2d 643, 652 (Del. 1998).
6
continued to run from a second officer, who observed Clay throw his hands into the
air as though he was throwing something. Officers later found a gun near where
the officer made this observation. Clay also does not dispute the fact that evidence
that Land committed the robbery would still be admissible at Clay’s trial had his
motion to sever been granted. This evidence collectively constitutes substantial
independent competent evidence of Clay’s guilt that is attributable only to Clay, and
therefore, Clay did not suffer any prejudice because of the joint trial. The record
reflects that the Superior Court appropriately exercised its discretion in denying
Clay’s motion to sever his trial.
B. The Trial Court Erred by Denying Clay’s Motion for Judgment of
Acquittal as to the Tampering with Physical Evidence Charge
Clay contends that the trial court erred by denying his motion for judgment of
acquittal because the State failed to produce sufficient evidence to establish beyond
a reasonable doubt that Clay was guilty of the offenses of Robbery in the First
Degree, PFDCF, Conspiracy in the Second Degree, and Tampering with Physical
Evidence. This Court reviews an appeal from the denial of a motion for judgment
of acquittal de novo.5 Specifically, this court examines “whether any rational trier
of fact, viewing the evidence in the light most favorable to the State, could find a
defendant guilty beyond a reasonable doubt of all the elements of the crime.” 6 We
5
Cline v. State, 720 A.2d 891, 892 (Del. 1998).
6
Id.
7
conclude that the trial court did err in denying Clay’s motion for judgment of
acquittal as to the tampering charge, but did not err in denying the motion as to the
remaining charges.
i. Accomplice Liability for Robbery in the First Degree and PFDCF
Clay argues that the State did not produce sufficient evidence to establish his
liability as an accomplice on the first degree robbery charge. Specifically, Clay
argues that the State failed to establish that Clay and Land had a prior ongoing
relationship, or that Clay and Land came together at any point prior to being at the
Dollar General on the night of the robbery. Clay also contends that he cannot be
held liable as an accomplice as to the PFDCF charge because the State did not
present evidence that Clay knew that Land possessed a firearm during the robbery.
We reject these contentions.
An individual is liable for the conduct of another when “[i]ntending to
promote or facilitate the commission of the offense the person . . . [a]ids, counsels
or agrees or attempts to aid the other person in planning or committing [the
offense].”7 While mere presence at the scene of a crime is not sufficient to prove
accomplice liability, “a simple word or gesture may be enough” to show that an
individual “actively encouraged the principal to commit the crime.” 8 Such
7
11 Del. C. § 271(2)(b).
8
Dalton v. State, 252 A.2d 104, 105 (Del. 1969).
8
encouragement must occur prior to or during the other person’s commission of the
crime.9
At trial, the State presented a video showing Clay enter the Dollar General in
front of Land, and showing him exit the store seconds after Land without purchasing
the items he had placed on the counter. The State also presented the following
evidence: police saw Clay walking with Land and Martin shortly after the robbery;
Clay ran when an officer attempted to stop the men; Clay continued to run from a
second police officer; Clay made a throwing motion as he was running; and police
later recovered a gun near the area where Clay was observed making the throwing
motion. Viewing this evidence in the light most favorable to the State, a rational
juror could find that Clay intended to facilitate the commission of the robbery by
being Land’s “lookout” while he was in the back of the store, and that Clay knew
that Land was armed.
ii. Conspiracy in the Second Degree
Clay asserts that the State did not establish the elements of conspiracy because
the State did not offer evidence to show that Land and Clay planned to commit a
robbery nor did the State offer any evidence that the pair knew each other. Under
11 Del. C. § 512,
A person is guilty of conspiracy in the second degree
when, intending to promote or facilitate the commission of
9
Id.
9
a felony, the person: (1) Agrees with another person or
persons that they or 1 or more of them will engage in
conduct constituting the felony or an attempt or
solicitation to commit the felony; or (2) Agrees to aid
another person or persons in the planning or commission
of the felony or an attempt or solicitation to commit the
felony; and the person or another person with whom the
person conspired commits an overt act in pursuance of the
conspiracy.
For the reasons given above in connection with accomplice liability, we are satisfied
that when the evidence is viewed in the light most favorable to the State, a rational
juror could find that Clay conspired with Land to commit the robbery and assisted
Land by acting as his lookout.
iii. Tampering with Physical Evidence
Clay contends that no rational juror could find him guilty of Tampering with
Physical Evidence because the evidence in this case, the gun, was immediately
retrievable and therefore was not successfully suppressed. We agree. In pertinent
part, 11 Del. C. § 1269 states:
A person in guilty of physical evidence when . . .
[b]elieving that certain physical evidence is about to be
produced or used in an official proceeding or a prospective
official proceeding, and intending to prevent its
production or use, the person suppresses it by any act of
concealment, alteration or destruction, or by employing
force, intimidation or deception against any person.
As this Court stated in Harris v. State, “11 Del. C. § 1269 criminalizes neither
inchoate tampering nor tampering with items, but, rather, successful suppression of
10
evidence.” 10 Where evidence is immediately retrievable by the police, an
individual has failed to actually suppress the evidence, and is therefore not guilty of
tampering under § 1269. 11 Evidence is immediately retrievable if the police
perceive the evidence or the defendant’s “act of suppression” through sight, sound
or otherwise.12 This includes when an officer observes an individual “making a
throwing motion during pursuit.”13
In this case, Officer Wilson observed Clay make a throwing motion as he was
running away from the officer. Police later recovered a gun in the area where Clay
made the throwing motion. The gun was immediately retrievable because Officer
Wilson perceived Clay’s “act of suppression.” Therefore, Clay failed to actually
suppress the evidence as is required for an individual to be found guilty of
Tampering with Physical Evidence under § 1269. We therefore reverse the
Superior Court’s denial of Clay’s motion for judgment of acquittal as to the
tampering charge.
C. The Trial Court Did Not Abuse its Discretion When it Denied Clay’s
Motions to Suppress
Clay argues that the Superior Court abused its discretion when it denied his
motions to suppress. In particular, Clay claims that Corporal Diaz, the initial
10
991 A.2d 1135, 1138 (Del. 2010) (emphasis added).
11
Id. (citing Pennewell v. State, 977 A.2d 800, 803 (Del. 2009)).
12
Id. at 1140-41.
13
Id. at 1141 (citing Commonwealth v. Delgado, 679 A.2d 223, 225 (Pa. 1996)).
11
officer that approached Clay, did not have a reasonable, articulable suspicion that
Clay had engaged in criminal activity to justify stopping him. Clay also contends
that officers lacked probable cause to arrest Clay. The Superior Court rejected both
of Clay’s motions to suppress, finding that the officers had reasonable suspicion to
stop Clay, and probable cause to arrest him.
“We review the grant or denial of a motion to suppress for an abuse of
discretion.”14 “[T]his Court will defer to the factual findings of a Superior Court
judge unless those findings are clearly erroneous.” 15 We review the trial judge’s
application of the law to his or her factual findings de novo.16
Clay first claims that the Superior Court erred when it denied his first motion
to suppress because Corporal Diaz did not have a reasonable, articulable suspicion
of criminal activity to justify stopping Clay and Martin simply because they were
walking near Land after the robbery. When “reviewing the denial of a motion to
suppress evidence based on an allegedly illegal stop and seizure, we conduct a de
novo review to determine whether the totality of the circumstances, in light of the
trial judge’s factual findings, support a reasonable articulable suspicion for the
stop.”17 “Reasonable suspicion has been defined as the officer’s ability to ‘point to
14
Lopez-Vazquez v. State, 956 A.2d 1280, 1285 (Del. 2008).
15
State v. Rollins, 922 A.2d 379, 382 (Del. 2007).
16
Burrell v. State, 953 A.2d 957, 960 (Del. 2008).
17
Lopez-Vazquez, 956 A.2d at 1285.
12
specific and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant th[e] intrusion.’” 18 “A determination of reasonable
suspicion must be evaluated in the context of the totality of the circumstances as
viewed through the eyes of a reasonable, trained police officer in the same or similar
circumstances, combining objective facts with such an officer’s subjective
interpretation of those facts.”19
When Corporal Diaz first encountered the men, they were running across the
street at an intersection near the Dollar General store just after it had been robbed.
Corporal Diaz testified that upon seeing his marked police vehicle, the trio began
walking quickly, and the Superior Court found that such “behavior is reasonably
seen as furtive.”20 The Superior Court judge also found that it was reasonable for
the officer to find Land, Clay and Martin’s “concerted activity” suspicious
considering a robbery had just taken place near where the men were seen, and one
of the men matched a description of the suspect. No other individuals were in the
area. Viewing the totality of the circumstances through the eyes of a trained police
officer in the same or similar circumstances, the foregoing facts as well as rational
inferences from those facts warranted Corporal Diaz’s effort to detain Clay. Thus,
18
Coleman v. State, 562 A.2d 1171, 1174 (Del. 1989) (quoting Terry v. Ohio, 392 U.S. 1, 21
(1968)).
19
Jones v. State, 745 A.2d 856, 861 (Del. 1999).
20
Appellant’s Opening Br., Ex. A at 11.
13
the Superior Court did not abuse its discretion when it denied Clay’s first motion to
suppress.
Second, Clay contends that the Superior Court erred when it denied his second
motion to suppress because Officer Wilson did not have probable cause to arrest
him. “This Court has stated that a police officer has probable cause to arrest
someone when the officer possesses ‘information which would warrant a reasonable
man in believing that a crime has been committed.’” 21 The Superior Court found
that Officer Wilson did have probable cause to arrest Clay for the crimes of robbery
and conspiracy, and we agree.
As discussed, shortly after the robbery an officer observed Clay walking near
the Dollar General store with a man who matched the description of the robbery
suspect. After a lawful encounter with that officer, Clay ran. As he was running,
he appeared to throw an object over a fence. Given the totality of the circumstances,
it was reasonable for Officer Wilson to believe that Clay was involved in the robbery
and therefore had probable cause to place him under arrest. The Superior Court did
not abuse its discretion by denying Clay’s second motion to suppress.
21
Clendaniel v. Voshell, 562 A.2d 1167, 1170 (Del. 1989).
14
D. The Superior Court Abused its Discretion when it Required the State to
Provide a Copy of a Department of Justice Intake Sheet and Copies of the
Prosecutor’s Notes from Witness Interviews to Defense Counsel under
Superior Court Criminal Rule 26.2
On cross-appeal, the State claims that the Superior Court abused its discretion
when it required the State to provide a redacted copy of the Department of Justice’s
intake document and copies of the prosecutor’s notes from witness interviews to
defense counsel under Superior Court Criminal Rule 26.2. “We review a trial
judge’s application of the Superior Court Rules relating to discovery for an abuse of
discretion.”22
Rule 26.2 codifies the decision of the United States Supreme Court in Jencks
v. United States,23 and provides that following the direct examination of a witness,
the party who did not call the witness may move for the opposing party “to produce,
for the examination and use of the moving party, any statement of the witness that
22
Oliver v. State, 60 A.3d 1093, 1095 (Del. 2013).
23
353 U.S. 657 (1957). As this Court noted in Valentin v. State, “Superior Court Criminal Rule
26.2 substantively mirrors Federal Rule of Criminal Procedure 26.2” which was adopted to
incorporate the Jencks Act, 18 U.S.C. §3500, into the Federal Rules. 74 A.3d 645, 648 n. 10 (Del.
2013). In these situations, this Court i) reviews the Superior Court’s application of the Superior
Court Rules of Criminal Procedure for an abuse of discretion, and, if the Rules were misapplied
or an abuse of discretion occurred, ii) applies “a three-factor test that considers ‘(1) the centrality
of the error to the case; (2) the closeness of the case; and (3) the steps taken to mitigate the results
of the error.’” Id. at 649 (quoting Oliver, 60 A.3d at 1096–97). “We will reverse a conviction
on the basis of a discovery violation only if the defendant’s substantial rights are ‘prejudicially
affected.’” Id. (quoting Oliver, 60 A.3d at 1097).
15
is in their possession and that relates to the subject matter concerning which the
witness has testified.”24 A “statement” under the rule is defined as:
(1) A written statement made by the witness that is signed
or otherwise adopted or approved by the witness; (2) A
substantially verbatim recital of an oral statement made by
the witness that is recorded contemporaneously with the
making of the oral statement and that is contained in a
stenographic, mechanical, electrical, or other recording or
a transcription thereof; or (3) A statement, however taken
or recorded, or a transcription thereof, made by the witness
to a grand jury.25
It was error for the Superior Court to require the State to provide Clay’s
counsel with a redacted copy of the Department of Justice’s intake document
following direct examination of Corporal Diaz. The Superior Court reviewed the
intake document, in camera, and determined that certain portions of the intake
document were “beyond the purview of Rule 26 cross-examination” as “work
product and investigative techniques.” 26 The Superior Court also determined,
however, that certain portions of the document had to be disclosed under Rule 26.2
because the intake officer, Detective Cordrey, was “reporting what others have
reported to him, and in context, you can see where [Corporal Diaz’s] input is
reflected.”27
24
Super. Ct. Crim. R. 26.2(a) (emphasis added).
25
Super. Ct. Crim. R. 26.2(f).
26
Appellee’s Answering Br., Ex. A at 3-4.
27
Id. at 5.
16
While we understand the trial court’s commendable concern that defense
counsel have all the information necessary to address the State’s case, Rule 26.2
does not authorize the production of the intake sheet, as the intake sheet was not a
statement as that term is defined by the rule.28 As previously stated, a statement is
defined, in relevant part, as “a written statement made by the witness that is signed
or otherwise adopted or approved by the witness” 29 or “a substantially verbatim
recital of an oral statement made by the witness.” 30 Clay’s counsel sought the
intake document as Corporal Diaz’s statement following his direct examination.
However, Corporal Diaz was not present when the intake sheet was created, and he
did not sign, adopt or approve the intake document.31 Further, Diaz had not made
an oral statement that had been reduced to a substantially verbatim recital. Thus,
the Department of Justice’s intake sheet is not discoverable under Rule 26.2 because
it is not Corporal Diaz’s “statement” as defined under the rule.
28
Additionally, Superior Court Criminal Rule 16 specifically provides that it “does not authorize
the discovery or inspection of reports, memoranda, or other internal state documents made by the
attorney general or other state agents in connection with the investigation or prosecution of the
case, or of statements by state witnesses or prospective state witnesses.” Super. Ct. Crim. R.
16(a)(2).
29
Super. Ct. Crim. R. 26.2(f)(1).
30
Super. Ct. Crim. R. 26.2(f)(2).
31
The prosecutor explained that during an intake, the intake officer, in this case Detective Cordrey,
gives a general narrative of events to an intake paralegal who will then type notes into a document
called the Department of Justice Intake Sheet. The narrative typically reflects what is written in
the police report.
17
The Superior Court also committed error by requiring the prosecutor to
produce notes she had taken during witness interviews in preparation for the
suppression hearings and trial to Clay’s defense counsel under Rule 26.2. The trial
court initially ordered the prosecutor to turn over notes she had taken during her
interview with Karl Woody, the custodian of the Dollar General store surveillance
video from the night of the robbery. The trial court denied the prosecutor’s request
that the court review her notes in camera, reasoning that the prosecutor should have
had an investigator present during the interview. At a later point, acknowledging
that defense counsel would likely make a request under Rule 26.2 for every witness,
the prosecutor made the trial court aware that she possessed notes from interviews
with several police officers, which she took when preparing for the suppression
hearings and trial. The prosecutor reiterated that she objected to turning over her
notes, but wanted to ensure that she was complying with the trial court’s earlier
ruling. The trial court ordered the prosecutor to turn over the notes.
The notes that the prosecutor was required to turn over do not qualify as
witness statements under Rule 26.2(f). During the trial court’s initial discussion
with the prosecutor regarding the notes from her interview with Mr. Woody, the
prosecutor stated that she “read the notes to the witness and he confirmed their
accuracy.” 32 However, the notes were merely notes and were not a statement
32
App. to Appellee’s Answering Br. at 68.
18
signed, adopted or approved by the witness. The prosecutor also stated that none
of her notes were substantially verbatim recitations of the witness’s oral statement.
The record supports the prosecutor’s characterization of her notes as to all of the
witnesses. Therefore, the Superior Court abused its discretion by ordering that the
prosecutor turn over her notes as qualifying witness statements under Rule 26.2.
IV. CONCLUSION
For the foregoing reasons, we REVERSE in part and AFFIRM in part the
judgment of the Superior Court.
19