IN THE SUPREME COURT OF THE STATE OF DELAWARE
ANDREW ALLEN, § § No. 54, 2020 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § ID. No. 1510018545A STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §
Submitted: May 12, 2021 Decided: July 16, 2021
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
On this 16th day of July 2021, upon consideration of the parties’ briefs and the
record on appeal, it appears to the Court that:
(1) The defendant-appellant, Andrew Allen, appeals from a Superior Court
jury verdict finding him guilty of Home Invasion, Robbery First Degree, Assault
Second Degree, Burglary Second Degree, four counts of Possession of a Firearm
During the Commission of a Felony, and Conspiracy Second Degree. On appeal,
Allen makes three arguments. First, he argues that the Superior Court committed
plain error by instructing the jury that evidence of the complaining witness’s prior
felony conviction “could be used ‘solely’ for general credibility, as set forth in Del.
Rule of Evidence 609, precluding its use as a predicate for proof of the complainant’s bias, motive and incentive to lie, thus abridging appellant’s rights to due process,
confrontation and trial by jury.”1 Second, Allen argues that the Superior Court
committed plain error by not sua sponte “giving an instruction that, because the
complainant had a penal interest in testifying favorably for the State, his testimony
should be considered with great care and caution, abridging appellant’s rights to due
process, confrontation and trial by jury.”2 Allen argues that the same cautionary
witness instruction that is given in cases involving accomplice testimony should
have been given here. Third, Allen argues that, alternatively, the case “should be
remanded for an evidentiary hearing on whether the State violated Brady by failing
to disclose any consideration, tacit or express, given to [the complainant] in
exchange for his testimony.”3 We find no merit to Allen’s claims and affirm.
(2) On July 15, 2015, Troy Williams called the police after two men
allegedly broke into his house, restrained him with duct tape, assaulted him, and
robbed him. On January 4, 2016, Allen and another person, Jeremy Clark, were
indicted on the above-stated charges.4 Clark was tried first because Allen, although
indicted, was not arrested until after Clark’s trial. Clark was tried and found not
guilty on all charges.
1 Appellant’s Op. Br. at 13 [hereinafter OB at __]. 2 Id. at 23. 3 Id. at 37. 4 They were also charged with Possession of a Firearm by a Person Prohibited. However, that charge was severed to be tried later, and, on September 25, 2019, the State entered a nolle prosequi on it. App. to Appellee’s Ans. Br. at B70 [hereinafter B__]. 2 (3) The State’s theory of the case was that Williams was an innocent
victim. Williams testified that on July 15, 2015, between 1:00 and 1:30 p.m., there
was a knock on his front door. Williams looked out his window and saw a white
Chevy with New York plates across from his house. Williams then looked out his
front door and saw someone wearing a blue Yankees hat holding a pizza box.
Williams assumed that the person had the wrong house and opened the door. The
person, brandishing a gun, tried to push into Williams’s house. Williams pushed
the person back outside but could not lock the door because the pizza box became
jammed in the doorway. Williams continued to resist the person’s entry but had
trouble keeping his footing because he was wearing flip flops and pizza had spilled
onto the floor. Eventually, the man in the Yankees hat and a second person forced
entry into Williams’s house.
(4) Once inside, the men ordered Williams to the ground. Williams
complied. They taped his hands and ankles with duct tape. The man in the
Yankees hat held a gun to Williams’s head and the two demanded drugs and money.
Williams denied having any, so one of the men hit him in the ear with a gun, causing
blood to run down his face. Then, one of the men made a phone call to a third
party. Williams heard the man threaten to wait until Williams’s wife came home,
insinuating a threat against her.
3 (5) Angered, Williams decided to fight back. He complained of being
uncomfortable on the floor and asked to be helped up. The man in the Yankees hat
began picking Williams up. Williams—who was 6 ft. 4 in. and 280 lbs.—did not
help. Instead, he slammed the man up against the wall, “flipped” his hands out of
the duct tape around his wrists and “stepped out of” the duct tape around his ankles.
He grabbed the man’s gun, but it would not fire. A struggle ensued. Williams
broke free and ran up to his bedroom where he kept a revolver. Williams retrieved
his revolver and shot at the men as they retreated. One of the bullets went into the
floor at the door entryway. Williams believed it was possible that another one of
the shots hit one of the intruders. The men got into the white Chevy with New
York plates and drove away. A third person was driving the car.
(6) Williams called his wife and told her to come home. He then called
his friend “Al” and told him that he had just been robbed. Next, and roughly ten to
fifteen minutes after the men left, Williams called 911.
(7) Later that day, Williams was interviewed by Detective Steven Rizzo of
the Delaware State Police. Williams told Det. Rizzo that the man in the Yankees
hat was 5 ft. 10 in. tall, thin, and weighed about 180 lbs. Williams did not tell Det.
Rizzo about his revolver or that he fired it because he was afraid of getting in trouble.
Williams knew that because of a 2007 felony drug conviction he was a person
prohibited from possessing a firearm. Instead, he told Det. Rizzo that one of the
4 intruders had fired a shot into the floor as they fled. At a later interview, Det. Rizzo
informed Williams that the police investigation revealed that the intruders probably
had semiautomatic handguns, but ballistics evidence showed that the bullet in the
floor came from a revolver. Confronted with this apparent inconsistency, Williams
confessed that he shot at the men with his revolver and thought he hit one of them.
(8) At trial, defense counsel sought to undermine Williams’s credibility.
On cross-examination, he questioned Williams about his finances and his assets at
length. Williams explained that he owned several rental properties, he and his wife
owned four cars, he paid off his mortgage in five years, and he had remodeled much
of his house and had a pool installed. Defense counsel used this evidence in closing
argument to argue that Williams had substantially more assets than his legal income
could possibly account for, implying that he was still selling drugs. On cross-
examination, Williams confirmed that in 2007, he was convicted of a felony drug
charge. Williams also confirmed that he was not forthcoming with police about
firing his revolver because of that conviction.
(9) The jury also heard evidence obtained by the State Police during the
police investigation. Detective Timothy Harach, who works in the Evidence
Detection Unit, processed the crime scene. Det. Harach found pieces of duct tape
on Williams’s leg and wrist, on the floor in the office, and in his bedroom. There
was a torn pizza box, a roll of duct tape, two nine-millimeter magazines, ear buds, a
5 piece of rope, and a cell phone that did not belong to Williams left at the scene; there
were pieces of pizza inside the doorway; and there was a bullet in the floor by the
front door. Fingerprints were collected from items at the scene and sent to be
processed.
(10) Detective Anthony DiNardo testified that he matched one of Clark’s
fingerprints to a fingerprint found on a piece of duct tape and another on the roll of
duct tape. Det. DiNardo also matched Allen’s fingerprint to a fingerprint found on
the pizza box. Det. DiNardo testified, “I’m 100 percent certain that all my
identifications are a match.”5
(11) Det. Rizzo was the case’s chief investigating officer. He testified that
initially Williams did not say anything about having and firing a revolver.
Williams admitted to having and shooting the revolver later as discussed above.
Williams also admitted that he called his friend “Al” prior to calling 911 to ask what
he should do about his revolver. According to Det. Rizzo, there was no evidence
of any drug dealing in Williams’s house. The cell phone found in his house was
determined to be Clark’s. Clark’s phone was turned over to the high-tech crimes
unit for data extraction. The extraction report showed that Clark was in
communication with Allen and two others—Gees and Sadiqq. Det. Rizzo also
obtained the call detail records for Clark’s phone. On the morning of the alleged
5 B52. 6 robbery, Clark texted Gees “[t]ape and rope.”6 Sadiqq texted Clark to “[h]andle
you’re [sic] business, you know what to do, you in charge.” 7 There were also
several phone calls between these parties.
(12) Special Investigator Brian Daly testified that the call detail records for
Allen’s phone showed that at 8:43 a.m. Allen’s phone was in Philadelphia. At
10:43 a.m. Allen’s phone was hitting off a tower near Williams’s house. It
continued hitting off that tower until 12:41 p.m. At 2:49 p.m. Allen’s phone started
moving in a northerly direction and ended back in Philadelphia.
(13) The defense presented the case as a drug deal gone awry. Clark, the
only defense witness, testified that at the time of the incident, he was a drug dealer.
On July 15, 2015, Clark drove to Philadelphia to pick up Allen. Clark and Allen
headed to Williams’s house so that Clark could purchase cocaine and introduce
Allen to Williams. According to Clark, Williams had been his cocaine supplier for
about two years. On their way to Williams’s house, Williams asked Clark to pick
up duct tape and rope because Williams had work to do on his rental properties.
Clark explained that while speaking with Williams on his drug phone, he was
making a list of the items he needed to purchase on his personal phone. Clark
6 App. to Appellant’s Op. Br. at A68 [hereinafter A__]. 7 Id. 7 accidentally texted this list to his friend Gees. This was his explanation for the
“tape and rope” text message.
(14) Clark and Allen arrived at Williams’s house where Clark purchased
cocaine. After meeting Williams but prior to the cocaine transaction, Allen left.
According to Clark, while at the house, Allen moved a pizza box off Williams’s desk
to give Williams room to count money. This was the defense’s explanation for
why Allen’s fingerprint was found on the pizza box.
(15) After they left, Clark and Allen drove to Chester so that Clark’s uncle,
Sadiqq, could cook the cocaine into crack cocaine. While in Chester, Williams
called and told Clark that he needed to come back because there was a discrepancy.
Clark and Allen picked up their friend Gees and drove back to Williams’s house.
(16) According to Clark, he went into Williams’s house alone, where
Williams accused him of paying $5,000 in counterfeit money. Clark called Sadiqq
and told him to bring replacement money. According to Clark, Williams became
aggressive and pointed a gun at him. Clark allowed Williams to speak with Sadiqq
on Clark’s phone. Williams spoke to Sadiqq for a minute and then threw Clark’s
phone. Williams began restraining Clark with duct tape. Clark tried to fight back,
so he grabbed the scale used for weighing cocaine and hit Williams in the head. A
struggle ensued and Williams began duct taping Clark again.
8 (17) Eventually, Clark freed himself and ran from Williams’s house as
Williams fired a gun at him. Clark was shot once in his shoulder but made it to the
car where Allen and Gees were waiting. The trio drove to Temple University
Hospital where Clark was treated and released. After leaving the hospital Clark
was questioned by a Philadelphia Police Officer. Clark lied and told the officer
that he was shot by a random person while walking to his friend’s house.
(18) On cross-examination, Clark again testified that when returning to
Williams’s house, he went in alone and was not carrying a gun. However, Clark
admitted that he was a five-time convicted felon, including several convictions for
firearms-related offenses. Clark also testified that sometime after the alleged
incident he sent his then-girlfriend to pay Williams the replacement $5,000. Clark
denied that he was trying to bribe Williams.
(19) In its rebuttal case the State offered a videotaped statement that Allen
gave the State Police in July 2017. Through that statement the State pointed out
several inconsistencies between Clark and Allen’s versions of what happened.
(20) The jury found Allen guilty of all charges.
(21) None of the claims Allen makes on appeal were raised at trial. Where
defense counsel did not object at trial to issues now raised on appeal, this Court
9 reviews for plain error.8 Allen concedes that his claims are reviewed for plain error.
To constitute plain error:
[T]he error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process. Furthermore, the doctrine of plain 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.9
(22) Allen first argues that the Superior Court committed plain error relating
to the following instruction:
Witnesses’ conviction of a crime. You may consider evidence that a witness was previously convicted of a felony or a crime involving dishonesty for the sole purpose of judging that witness’s credibility or believability. Evidence of a prior conviction does not necessarily destroy or damage the witness’s credibility and it does not mean the witness has testified falsely. It is simply one of the circumstances you may consider in weighing the testimony of the witness.10
(23) The alleged plain error is in the Superior Court’s use of the phrase “for
the sole purpose of judging that witness’s credibility or believability.” Allen
argues that in this case, Williams’s prior conviction had relevance beyond its
relevance to his general credibility. Since Williams could potentially be prosecuted
currently for his possession of the revolver as a person prohibited from possessing a
8 Small v. State, 51 A.3d 452, 456 (Del. 2012). 9 Id. (quoting Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986)). 10 A146. 10 firearm, Allen argues, the prior conviction was also relevant to show bias, motive or
an incentive to lie “stemming from a witness’s potential criminal exposure that may
inform his testimony, especially when the witness is testifying for the prosecuting
authority that has the power to prosecute him.”11 The instruction should have been
crafted, he argues, to allow the jury to consider Williams’s conviction for the specific
purpose of judging his credibility, bias, motive, or incentive to lie in this case. The
instruction as given, so the argument goes, did not permit the jury to use the prior
conviction for this wider purpose.
(24) Allen gives us three cases, Davis v. Alaska, Weber v. State, and Reid v.
State, which he contends support his position. We will describe these three cases,
and then turn to Allen’s argument. In Davis v. Alaska, a United States Supreme
Court case, the question presented was:
[W]hether the Confrontation Clause requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias deriving from the witness’ probationary status as [a] juvenile delinquent when such an impeachment would conflict with a State’s asserted interest in preserving the confidentiality of juvenile adjudications of delinquency.12
A juvenile was a crucial witness for the State. The juvenile was on probation
for a delinquency adjudication. The defendant sought to introduce, by way of
11 OB at 16. 12 415 U.S. 308, 309 (1974). 11 cross-examination, evidence of the juvenile’s prior juvenile record to show that the
witness acted out of fear of possible legal jeopardy or to shift suspicion away from
himself. The State argued that a juvenile’s delinquency and probationary status
were confidential and should not be admitted. The trial court ruled in favor of the
State and the juvenile’s delinquency record and probationary status were not
admitted. The Supreme Court reversed, holding that the defendant’s Sixth
Amendment Right to Confrontation was violated:
While counsel was permitted to ask [the witness] whether he was biased, counsel was unable to make a record from which to argue why [the witness] might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. . . On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination[.]13
(25) In Weber v. State, a murder case, it was revealed during trial that family
members of the victim had made payments of money to several State witnesses.14
The family members claimed that the payments were made for the witnesses to buy
new clothes to wear at trial. The defense attorney argued that the payments should
be admitted into evidence because they were essential to the jury’s assessment of the
13 Id. at 318. 14 457 A.2d 674, 678 (Del. 1983). 12 witnesses’ character and credibility. The trial court refused to admit the evidence
on the ground that there was no difference between the witnesses’ trial testimony
and their prior statements to the police. On appeal, the defendant argued that he
was denied his constitutional right to impeach the credibility of the witnesses, citing
Davis v. Alaska. This Court reversed and held that the lower court violated the
defendant’s confrontation rights by preventing him from impeaching the witnesses’
credibility with evidence of bias.
(26) In Reid v. State, the issue was whether the trial court committed
reversible error by refusing to allow the defendant to use a witness’s juvenile
adjudication of delinquency for impeachment purposes on cross-examination. 15
This Court’s order on appeal focused on D.R.E. 609(d), which specifically governs
the admissibility of juvenile adjudications, and the Confrontation Clause. Rule
609(d) provides that evidence of juvenile adjudications is generally not admissible
under Rule 609. Rule 609(d) further provides, however, that a juvenile adjudication
may be admitted if it would be admissible “to attack the credibility of an adult and
the court is satisfied that admission in evidence is necessary for a fair determination
of the issue of guilt or innocence.” 16 The Court took the opportunity the case
presented to discuss the analysis necessary to address a defendant’s claim that the
15 2005 WL 3272134, at *2 (Del. Nov. 30, 2005). 16 D.R.E. 609(d). 13 Confrontation Clause entitles him to cross-examine a State’s witness about an
adjudication of delinquency:
Reviewing these cases, it is apparent that when a trial judge is called upon to balance the Confrontation Clause and Rule 609(d), he should ask whether the impeachment evidence of earlier juvenile adjudications of delinquency is (1) offered to show bias (i.e., the motive to lie in the specific case) and (2) important to the assertion of that bias. This second prong tracks the explicit requirement of Rule 609(d) that evidence be “necessary for a fair determination of the issues of guilt or innocence.” In other words, the Confrontation Clause does not mandate a right to use juvenile adjudications of delinquency for general impeachment. The confrontation clause is implicated only where impeachment is used to establish specific bias. The party offering the evidence should have the burden of showing that the exception to impeachment evidence is necessary for a fair determination of the issue of guilt or innocence.17
The Court recognized in Reid a distinction between evidence offered under Rule 609
to undermine credibility in a general sense by showing a witness’s criminal
character, and evidence which shows a bias or motive to lie on the facts and
circumstances of a specific case. The Court held that the Confrontation Clause was
not violated on the facts of that case because the defendant sought only to introduce
the witness’s juvenile record for general impeachment, not for allegations of specific
bias.
17 2005 WL 3272134, at *4 (citations and footnotes omitted). 14 (27) Under D.R.E. 609, evidence that a witness has been convicted of a
felony can be admitted for the purpose of attacking the credibility of the witness.18
The instruction given in this case is a Superior Court pattern instruction. Allen
concedes that it is, in fact, a correct statement of the law as applied to Clark as a
witness. Relying on the case law discussed above, however, Allen argues that the
instruction should have been rewritten sua sponte by the court to instruct the jury
that Williams’s conviction should have been considered not only as it pertained to
his general credibility, but also as it pertained to his specific bias, motive, and
incentive to lie in this case.
(28) In addition to the Rule 609 pattern instruction, the jury was given a
pattern instruction on credibility of witnesses, which reads as follows:
Credibility of witnesses. You are the sole judges of the credibility of each witness. You decide the weight to be given to each witness’s testimony. You should consider each witness’s means of knowledge, strength of memory and opportunity for observation; the reasonableness or unreasonableness of the testimony; the consistencies or inconsistency of the testimony; the motivations of the witness; whether the testimony has been contradicted; the bias, prejudice or interest of the witness, if any; the manner or demeanor of the witness of the witness [sic] upon the witness stand; and all other facts and circumstances shown by the evidence that effect the credibility of the testimony.19
18 D.R.E. 609(a). 19 A146. 15 (29) While the instruction on a witness’s conviction of a crime instructs the
jury to consider the witness’s conviction for the sole purpose of judging a witness’s
credibility, the instruction on witness credibility explains how the jury may go about
judging credibility. It informs the jury that judging credibility may include an
assessment of a witness’s motivation, bias, prejudice, and interest. The two
instructions, taken together, plainly gave the jury full range to consider whether
Williams’s prior felony conviction gave him a motive or incentive to make up a story
which portrayed him as the victim in an attempt to shift law enforcement’s attention
away from prosecting him for possessing a firearm.
(30) The three cases raised by Allen are distinguishable and inapplicable.
In all three cases, the trial judge prevented a defendant from cross-examining a
witness with evidence that would undermine the witness’s credibility or show the
witness’s bias. None of the cases have anything to do with jury instructions. In
this case, no evidence relevant to this appeal was excluded. The trial record reflects
that Allen’s counsel thoroughly cross-examined Williams. On cross-examination,
defense counsel presented evidence of Williams’s prior drug felony conviction, his
finances and assets, his previous lie to police, and his illegal possession and use of
his firearm. Therefore, Allen’s counsel had the opportunity to—and did—present
evidence that allowed the jury to assess Williams’s general credibility and any bias,
motive, and incentive to be untruthful in this specific case. Plain error is limited to
16 defects which are apparent on the face of the record. Giving the witnesses’
conviction of a crime instruction in its pattern form was not plain error.
(31) Allen’s second argument is that the Superior Court erred by not giving
an instruction that Williams’s testimony should be viewed with caution. Such an
instruction was necessary, Allen argues, because Williams had a motive to falsely
accuse him in an effort to avoid being prosecuted himself for possession of a firearm
by a person prohibited. He points to Bland v. State and Brooks v. State, cases
concerning accomplice testimony. In Brooks, this Court established the rule that
when a witness who claims to have been the defendant’s accomplice testifies, the
trial judge’s failure to give an accomplice testimony instruction, even if not
requested by the defendant, is plain error. The instruction informs the jury that the
testimony of an alleged accomplice should be viewed with more care and caution
than a witness who did not participate in the crime. Allen argues that the legal
analysis requiring the giving of an accomplice testimony instruction is applicable to
any interested testimony, such as Williams’s testimony in this case. He also brings
to our attention a pattern instruction from New Jersey titled “Testimony of a
Cooperating Co-Defendant or Witness,” which can be given any time a witness has
a motive to curry favor with the State, including when a witness may be facing
potential charges. 20 He also mentions a Third Circuit model criminal jury
20 OB at 28. 17 instruction for a “witness who has pleaded guilty to [a] same or related offense,
accomplices, immunized witnesses, [or] cooperating witnesses.”21
(32) In this state, the giving of a cautionary instruction for specific witness
testimony has not been extended beyond the witness who claims to have been an
accomplice of the defendant. It was not plain error for the trial judge in this case
not to have given such an instruction. Allen’s second argument is rejected.
(33) Allen’s third argument is that, “[a]lternatively, this case should be
remanded for an evidentiary hearing on whether the State violated Brady by failing
to disclose any consideration, tacit or express, given to Williams in exchange for his
testimony.” 22 Allen argues that, because Williams admitted to police that he
illegally possessed a revolver and shot one of the assailants but was not prosecuted,
“it is utterly improbable that no one made the decision not to prosecute.” 23 These
facts demonstrate, Allen argues, “the overwhelming likelihood that Williams’
received an undisclosed deal in this case, and thus supports granting a hearing on
this claim.”24 Allen concedes that this claim is also reviewed for plain error because
it was not preserved below.
21 Id. 22 Id. at 37. 23 Id. at 38. 24 Id. 18 (34) The State contends that Allen’s argument is mere speculation and does
not amount to plain error, as the record is devoid of any evidence to substantiate his
Brady allegation. We agree. Allen cannot make any showing of a Brady
violation. The record contains no evidence that Williams was given any
consideration for his testimony. There is no plain error here.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr. Justice