State of Delaware v. Thelinous Love

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
STATE OF DELAWARE
v. Case No.: 1306024587
THELINOUS LOVE,
Defendant.
§/\/\J&\J§\/S\/S
On Defendant’s Motion for Pr0ducti0n of Police Reports
Submitted: May 14, 2014
Decided: June 28, 2014
Defendant’s Motion is DENIED
Stephen R. Welch, Jr. Esq., Department of Justice, 102 West Water Street, Dover, Delaware
19904, Deputy Attorney General for the State of Delaware.
Lloyd A. Schmid, Esquire, Off1ce of the Public Defender, 45 The Green, Dover, DE 19901,
Attorney for the Defendant at time of Preliminary Hean`ng
A1exander W. Funk, Esquire, Curley & Benton, LLC, 250 Beiser Boulevard, Suite 202, Dover,
De1aware 19904, Attorney for the Defendant.
Thomas D. Donovan, Esquire, 424 South State Street, Dover, Delaware 19901, Attomey for the
Defendant.
Reigle, J.
PROCEDURE
On October l3, 2013, the defendant, Thelinous Love, was arrested and charged with
Home Invasion with Intent to Commit a Felony,l Possession of a Firearm During the
Commission of a Felony,z Conspiracy in the Second Degree,3 Theft Under $1500,4 Offensive
Touching§ and Criminal Mischief Under $10006 for incidents allegedly occurring on June 25,
2013. On October 18, 2013, this Court held a preliminary hearing to detennine if there was
probable cause to believe that the offenses had been committed and if the defendant had
committed them.7 At the hearing, defense counsel moved for the Court to compel the State to
produce police reports written during the investigation, pursuant to Court of Common Pleas
Criminal Rules of Procedure 5.l and 26.2. The State objected. The Court reserved decision on
the motion. The Court denied defense counsel’s motion for a continuance of the preliminary
hearing pending the Court’s decision on the grounds that it would not be in the interests of
justice to delay the defendant’s case. At the conclusion of the preliminary hearing, the Court
found that the State had established probable cause to support the charges against Mr. Love and
his case was transferred to Superior Court. Written submissions on the issue of production of the
police reports were subsequently made by the Deputy Attomey General and defense counsels
Mr. Love was indicted on January 6, 2014 and his case is currently pending in Superior Court.
1De1. code Ann. tit. 11, § 826.
2 De1. code Ann. tit 11, § 1447.
3 De1. code Ann. tit 11, § 512.
‘ Dei. code Ann. tit 11, § 341.
5 De1. code Ann. tit 11, § 601.
°Del. codeAnn. tit 11, § 811.
7 ct. com. P. crim. R. s.i(e).
8 Initially this issue was raised in two cases in which a public defender represented defendants before this Court
during preliminary hearings. Both cases were transferred to Superior Court. The other defendant, Quaheem Hall,
(C.A. 1310003660) pled guilty in Superior Court and his motion was rendered moot. In the case of Thelinous Love,
the public defender was replaced twice by private court-appointed counsel due to asserted conflicts of interest. The
Court provided all counsel the opportunity to submit argument before a final decision was made.
2
At the preliminary hearing, Detective Mark Csapo of the Delaware State Police testified
as the State’s only witness. He stated that the initial investigation of the alleged crime was
performed by responding patrol officers. As a member of the Criminal investigations Unit,
Detective Csapo conducted the follow-up investigation. He testified that, prior to the hearing, he
reviewed the reports of the responding patrol officers and prepared his own report that
incorporated their reports. He did not testify from his report and his recollection was not
refreshed by his report.9
Prior to cross-examination of Detective Csapo, defense counsel moved for the production
of the report prepared by Detective Csapo, and for the production of any reports prepared by the
responding patrol officers incorporated by Detective Csapo into his report, pursuant to Court of
Common Pleas Criminal Rules of Procedure 5.l and 26.2. The State objected to a compelled
blanket production of the police reports. The Court reserved decision and requested written
argument by counsel. In subsequently filings, defense counsel argued that pursuant to Jencks v.
United Statesl° and Hooks v. State,ll at every stage of the prosecution, including preliminary
hearings, the State is required to tum over any written or recorded statements made by the State’s
witness regarding the subject matter of the witness’ direct examination upon a motion by the
defendant, The State subsequently conceded that, subject to conditions, police reports may be
required to be produced under Court Rules, but, the State argued production was limited to those
police reports written by Detective Csapo, in the possession of the State on the date of the
previous preliminary hearing and for use for impeachment purposes only. The State also argued
that the issue became moot pursuant to the Court’s finding of probable cause and the defendant’s
subsequent indictment.
’ see D.R.E. 612.
1° Jeneks v. united s¢dtes, 353 U.s. 657, 77 s.ct. 1007, 1 L.Ed.zd 1103 (1957).
" Hooks v. std¢e, 416 A.zd 189, 200 (Dei. 1980).
THE JENCKS RULE
In Jencks v. United States, the United States Supreme Court created what became known as
the "Jencks rule," which requires the government to turn over statements made by a witness to
defense counsel for use during cross-examination of a government witness. It was determined that
this procedure was necessary for defense counsel to have all of the information that it needed to
potentially impeach a witness. 12
The "Jencks rule" was later limited and codified in the federal "Jencks Act,"” and
narrowed in Palermo v. United States. 14 lt was also subsequently adopted as part of the Federal
Rules of Criminal Procedure.l$ The Delaware Supreme Court officially adopted the "Jencks rule"
in Hooks v. State.“’ Delaware also incorporated it into its Rules of Criminal Procedure in the
Superior Couitw and the Court of Common Pleas.ls The relevant portion of Court of Common
Pleas Criminal Rule 26.2 states:
Rule 26.2. Production of statements of witnesses.
(a) Motion for production. After a witness other than the defendant has
testified on direct examination, the Court, on motion of a party who did
not call the witness, shall order the Attorney General or the defendant
and the defendant’s attorney, as the case may be, to produce, for the
examination and use of the moving party, any statement of the witness
that is in their possession and that relates to the subject matter
concerning which the witness has testified . . . .19
This Rule essentially spells out the procedure to be used by counsel and the Courts to
follow the "Jencks rule."
" Jeneks v. United stdtes, 353 U.s. 657, 77 s.ct. 1007, 1 L. Ed. 2d 1103 (1957).
"" 13 u.s.c.A. § 3500 (1957)
“ Pdzermo v. United std¢es, 360 U.s. 343, 79 s.ct. 1217, 3 L.Ed.zd 1287 (1959).
15 Fed. Crim. R. 26.2 (enacted in 1980).
‘° Hooks v. s¢o¢e, 416 A.2d 139, 200 (Del. 1980).
" super. ct. crim. R. 26.2.
'“ crt. com. P. Crim. R. 26.2.
19 ct. comm. P. Crim. R. 26.2 (emphesis edded).
APPLICATION IN A PRELIMINARY HEARING
There are many cases which discuss the applicability of the "Jencks Rule" in a trial.z°
However, the rule also applies in preliminary hearings in the federal courtszl and the Delaware
Courts.zz The relevant portions of Rules 5.l and 26.2 of the Court of Common Pleas Criminal
Rules of Procedure mirror the Federal Rules of Criminal Procedure.” The logic of the extension
of the rule was discussed by the Advisory Committee in the adoption of the Federal Rules. Rule
26.2 was extended to preliminary hearings through Rule 5.l due to the "compelling need for
accurate information affecting a witness’ credibility . . . [at preliminary hearings] where both the
prosecution and defense have high interests at stake."” "There is a continuing need for
information affecting the credibility of witnesses who present testimony and that need exists
without regard to whether the witness is presenting testimony at a pretrial hearing, at a trial, or at
a post-trial proceeding."zs
Court of Common Pleas Criminal Rule of Procedure 5.l outlines the rule for Preliminary
hearings in this Court and it incorporates the "Jencks Rule." The relevant portion states:
Rule 5.1. Preliminary hearing.
(d) Production of statements (l) In general. Rule 26.2(a)--(d) and (f) applies at
any hearing under this rule, unless the court, for good cause shown, rules
otherwise in a particular case. (2) Sanctions for failure to produce statement. If a
party elects not to comply with an order under Rule 26.2(a) to deliver a statement
to a moving party, the court may not consider the testimony of a witness whose
statement is withheld.% '
This Rule specifically extends the "Jencks rule" to the preliminary hearing.
2° see zdznd v. szdte, 694 A.2d 845, 1997 WL 328593, at *2 (De1. 1997.
” Fed. Crim. R. 5.1.
22 ct. comm. P. Crim. R. 5.1.
23 see Fed. crim. R. 5.1, 26.2; ct. com. Crim. R. 5.1, 26.2.
24 Fed. Crim. R. 5.l Advisory Committee Notes, 1998 Amendments; Fed. Crim. R. 26.2 Advisory Committee Notes,
1998 Amendments.
25 See Fed. Crim. R. 26.2 Advisory Committee Notes, 1993 Amendments.
26 Ct. Com. P. Crim. R. 5.l(d) (emphasis added).
USE OF POLICE REPORTS
The cases of Jenclcs” and H00ks28 involved civilian witnesses that were called by the
govemment to testify and the Courts held that their statements had to be turned over to the
defense. Statements made by police witnesses are also subject to the same rule regarding
examination of statements by the defense for purposes of impeachment.29 The request for a
complete production of all police reports simply because a police officer has testified at a
hearing, however, is too broad of a request. The Delaware Rules of Evidence do not require that
the State make such a production of any and all police reports.30 "A preliminary hearing . . . is
not a discovery mechanism for defendants."“ The State is required to produce certain
statements under the rules of discovery;” however, that production is triggered after a written
request for discovery and a response from the State, which is typically after a preliminary
hearing is over.
The "general statutory aim" of Jencks material is for purposes of impeaching the
credibility of a witness.33 In accordance with that purpose, "only those statements which could
properly be called the witness’ own words should be made available for the purposes of
impeachment."34 Rules 5.l and 26.2 provide defense counsel with an opportunity to conduct a
meaningful cross-examination at the preliminary hearing stage by enabling defense counsel to
use prior written statements by the police officer to impeach the officer during cross-
examination.3 5
"Jeneks, 353 U.s. et 657.
28 Hooks, 416 A.2d 189.
29 see United states v. Veldez-Gtttt'ereee, 249 F.R.D. 368 (D. N.M. 2007).
’° see D.R.E. 612.
31 United States v. Ram0s, 2013 WL l776047, at *l (D. R.I. 2013). jenkins v. State, 305 A.2d 610, 615 (Del. 1973).
32 see ct. com. Crim. R. 16.
33 Palermo v. United States, 360 U.S. 343, 349 (1959).
34 Palermo, 360 U.S. at 352 (emphasis added).
35 ct. Com. P. Crim. R. 26.2, 5.1.
When defense counsel requests production of such a statement, the Court must first
determine whether the police report in question qualifies as a "statement" of the police officer.
Rule 26.2 defines a statement of a witness as follows:
(f) Definz`tion. As used in this rule, a "statement" of a witness means:
(l) 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.36
Under the rules and the case law, it is clear that a written statement in a police report
made directly by a police officer who testifies at a preliminary hearing is subject to production to
defense counsel. However, statements not made directly by the police officer may also be
subject to production. If a police report contains statements made by other officers, other than
made by the testifying officer, the statements may still be considered the testifying witnesses’
statements under Rule 26.2. The Court must detennine whether the police reports drafted by
other officers, which were incorporated into the police report and reviewed prior to testifying at
the preliminary hearing, may be properly offered as a statements of the testifying officer. The
Federal Courts have recognized "a limited joint investigation doctrine . . . i.e., a report is a
Jencks statement even if the testifying witness did not author the report, if the testifying witness
participated in the investigative activity specified in the report and concurs in the report’s
accuracy."” "The only situations in which [federal courts] have held that a testifying witness
adopted a statement or report prepared by someone else is where the testifying witness either had
some part in making the statement or report or the testifying witness participated in conducting
36 ct. com. P. Crim. R. 26.2(1) (empheeis edded).
" Begeye, 236 F.R.D. 448, 452 (D. Arizone 2006).
the underlying investigation and later approved the accuracy of the contents of the statement or
report of the investigation."zg There must be some evidence that the testifying officer intended to
be held accountable for the statement sought in the event that he did not author it himself.”
Merely reviewing a report drafted by a third-party officer is not sufficient to qualify as a
statement adopted or approved by the officer testifying on the stand.40
ANALYSIS IN THIS CASE
In this case, Detective Csapo testified that he was not involved in the initial investigation
made by the responding patrol officers, nor was he involved in drafting the responding patrol
officers’ reports. Detective Csapo only became involved in this matter after the responding
patrol officers completed their initial investigation and reports. While Detective Csapo did
review the reports made by the responding patrol officers, prior to writing his own report and
prior to testifying at the hearing, it cannot be construed that merely reviewing the reports
demonstrated his intent to be held accountable for their contents. Detective Csapo cannot vouch
for the accuracy of the responding patrol officers’ police reports because he was not involved in
their initial investigation, and thus lacks the personal knowledge to confirm or deny the veracity
of the infonnation contained therein. The reports made by the responding patrol officers would
not facilitate the defendant’s effort to impeach the credibility of Detective Csapo. Therefore, the
Court denies the defendant’s request for production of the responding patrol officers’ police
reports as a statement of Detective Csapo pursuant to Rule 26.2.
Portions of the police reports authored by Detective Csapo qualify as his own statement,
Therefore, assuming that the police reports were written and in the possession of the State at the
time of the preliminary hearing, the Court finds that defense counsel should have been able to
38 Valdez-Gutierrez, 249 F.R.D. at 369-72; See United States v. Sink, 586 F.2d 1041, 1050-51 (5th Cir. 1978)
39 United states v. Geteht'e, 803 F.2d 74, 77-8 (2nd cir. 1986).
"° Getehis, 803 F.2d et 78.
obtain the portions of Detective Csapo’s police reports regarding the subject matter of his direct
testimony after his testimony concluded. The State was not required to tum over the police
report for the defense to retain indefinitely. Rules 5.l and 26.2 are only intended to be used to
obtain witness statements to facilitate impeachment on cross-examination. Rule 26.2 explicitly
states that a statement must be produced "for the examination and use of the moving party."‘“
Thus, even if the portions of Detective Csapo’s report that qualified as his statement were
produced at the preliminary hearing for review, defense counsel would not have been permitted
to retain the statement or report at the conclusion of his cross-examination.
REMEDY
"[V]iolations of the Jencks rule are subject to harmless error analysis."” "In performing
a hannless error analysis, the ‘reviewing court must consider both the importance of the error
and the strength of the other evidence presented at trial’ to detennine whether the error may have
affected the judgment."“ The Delaware Supreme Court has also held that "Rule 5.l has no
application after indictment."44 "It is quite clear that an indictment for a felony by the Grand
Jury eliminates the need for a preliminary hearing."45 Therefore, in light of the defendant’s
indictment on January 6, 2014, any alleged error made by the Court at the preliminary hearing
was rendered moot.46
"' ct. com. P. Crim. R. 26.2(a) (emphasis added).
42 Zdina, at *2 (citations omitted).
43 Zdina,. at *2 (citations omitted).
"" Jenkins, 305 A.2d 610, et 615.
45 jenkins at 615 (citing Joy v. Superior Court, 298 A.2d 315 (Del. 1972).
"° see Beown v. stete, 2008 wL 5308097, et *2 (Del. Deo. 22, 2008) (TABLE); Joy, 298 A.2d et 315.
CONCLUSION
The motion to compel the production of the police reports is denied.
IT IS SO ORDERED.
jlnne Hartnett Q{¢z;g[e
The Honorable Anne Hartnett Reigle