IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAQUAN CRUMP, § § Defendant Below, § No. 290, 2018 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID No. 1707005117 § Plaintiff Below, § Appellee. §
Submitted: December 28, 2018 Decided: February 7, 2019
Before STRINE, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
After consideration of the parties’ briefs and the record on appeal, it appears
to the Court that:
(1) In February 2018, a Superior Court jury found the defendant-appellant,
JaQuan Crump, guilty of Assault in the First Degree and Possession of a Deadly
Weapon During the Commission of a Felony. The Superior Court sentenced Crump
to twenty years in prison, suspended for decreasing levels of supervision after five
years, for each offense. This is Crump’s direct appeal.
(2) The evidence presented at trial reflects that around midnight on July 8,
2017, Brandy Gross was outside of Irish Mike’s, a bar on Loockerman Street in
Dover, when Crump, whom she had known for approximately five years, approached her. Gross and Crump argued, and he punched her in the face, knocking
her to the ground. Gross testified that Crump was angry because Gross had recently
told him that she did not want a romantic relationship with him. After Crump
punched her, Gross borrowed a friend’s phone in order to report the assault. Crump
then stabbed her in the back with a knife and ran away. The knife remained in
Gross’s back. A friend drove Gross to the hospital, where the knife had to be
surgically removed. Gross had three stab wounds and a punctured lung; she
remained in the hospital for approximately one week.
(3) Corporal Derrick Mast of the Dover Police Department was one of the
officers who responded to the scene of the incident. Shortly after arriving at the
scene, he learned that the victim had gone to the hospital with stab wounds. Corporal
Mast went to the hospital emergency room and located Gross in a trauma bay with
the knife protruding from her back. Gross identified Crump as her assailant.
Approximately ten days later, Crump was apprehended in a vacant house in Dover.
(4) A public defender was appointed to represent Crump. Shortly before
trial was scheduled to begin, Crump requested to waive his right to counsel based on
disagreements between Crump and his attorney concerning the defense. After a
colloquy, the Superior Court granted Crump’s request and allowed him to proceed
pro se. The Court ordered Crump’s former counsel to remain as standby counsel.
2 (5) Crump raises six issues in his pro se opening brief on appeal. First, he
contends that his right to Brady1 material was violated because he was not permitted
to inspect Gross’s medical records before or during trial. Second, Crump argues that
the State committed a Brady violation when it failed to disclose that, before Crump’s
trial, one of the police officers who had investigated the stabbing was placed on
administrative leave after being arrested for driving under the influence of alcohol.
Third, he asserts that the prosecutor committed various forms of prosecutorial
misconduct. Fourth, Crump argues that the testimony of a witness who authenticated
a surveillance video during the trial constituted impermissible opinion testimony by
a lay witness. Fifth, he contends that the Court’s decision to permit certain increased
security measures during closing arguments was prejudicial. Sixth, Crump argues
that, even if none of the foregoing arguments justifies reversal on its own, they
constitute “cumulative error” warranting reversal. We address these issues in order.
(6) This Court generally reviews properly preserved claims of
constitutional error de novo.2 Because Crump did not preserve any of his claims of
error below, we review for plain error.3 To constitute plain error, an error must be
1 Brady v. Maryland, 373 U.S. 83 (1963).
2 Goode v. State, 136 A.3d 303, 312 (Del. 2016).
3 Id.
3 so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity
of the trial process.4
The Victim’s Hospital Records
(7) Crump’s first argument on appeal is that the State’s and the Superior
Court’s refusal to allow him to inspect the hospital records relating to the victim’s
treatment following the stabbing violated his right to Brady material, the
Confrontation Clause, and Superior Court Criminal Rule 16.
(8) Under Brady v. Maryland, “suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment.”5 In order to demonstrate a Brady violation,
the defendant must establish three elements: the evidence is favorable to the accused
because it is either exculpatory or impeaching; the State suppressed the evidence,
either willfully or inadvertently; and the defendant was prejudiced.6
(9) Crump contends that the hospital records are favorable because they
might have allowed him to impeach Gross’s testimony in order to demonstrate that
she suffered only “physical injury” sufficient to support a conviction for second-
4 Id.
5 373 U.S. at 87.
6 Goode, 136 A.3d at 312-13 (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).
4 degree assault, rather than the “serious physical injury” necessary to support a
conviction for first-degree assault. Specifically, he argues that Gross testified during
direct examination that she was in the hospital for “four weeks” following the
stabbing and then, in response to the very next question, indicated that she was in
the hospital for one week. Viewing the testimony as a whole, the Court concludes
that the hospital records would not have been useful for impeachment purposes. The
records, which show that Gross was in the hospital for one week, were admitted into
evidence; other than the single reference to “four weeks” in the transcript, which
may have been a simple misstatement or a transcription error, there was no
suggestion that she spent more than one week in the hospital.7 If the statement were
significant, Crump could have cross-examined Gross about her purportedly
inconsistent testimony, but he did not.
(10) The State also did not suppress the records. The State produced the
records to Crump’s attorney when Crump was still represented by counsel.8 And
7 See Robinson v. State, 2016 WL 5957289, at *3 (Del. Oct. 13, 2016) (“Officer Cumming’s testimony that she heard [a witness] shout ‘they killed Cam and she shot him for some pills’ is nothing more than a typographical error. There was no evidence that a female was present during the incident. Had Officer Cummings actually said ‘she’ rather than ‘he,’ counsel on both sides would have explored the statement further. Throughout the entire case, the witnesses consistently testified that three men were involved in the drug transaction and shooting.”).
8 See id. (holding that there was no suppression where the prosecutor disclosed to the defendant’s counsel favorable information that she received during trial as soon as she received it). Crump’s reliance on Wright v. State, 91 A.3d 972 (Del. 2014), for the proposition that disclosure to Crump’s former counsel was insufficient when Crump later became pro se because a prosecutor must “insure communication of all relevant information on each case to every lawyer who deals with it in order to discharge the government’s Brady responsibility,” Op. Br. at 13, is misplaced. Wright
5 during the Court’s colloquy with Crump regarding his decision to represent himself,
the Court warned Crump that, as a pro se defendant, he would not be entitled to
receive the hospital records. Crump did not object, and in fact conceded that he had
“checked with the law library” and determined not to seek to be permitted to review
the hospital records.9 The records were also admitted into evidence at trial without
objection from Crump, and Crump stipulated to their authenticity.10 Because the
hospital records were not favorable impeaching evidence and were not suppressed,
the Court concludes that there was no Brady violation.
(11) To the extent that Crump’s Confrontation Clause argument differs from
his Brady argument, we find it meritless. Crump does not identify a witness that he
did not have the opportunity to confront, nor does he explain why admission of the
hospital records, which he stipulated were authentic, violated the Confrontation
Clause. Admission of hearsay statements does not violate the Confrontation Clause
if the evidence falls within a firmly rooted hearsay exception or contains
and the cases cited therein address whether one prosecutor may be imputed with the knowledge of Brady information known to others acting on the government’s behalf, not whether a prosecutor must redisclose Brady material to a defendant’s new counsel or to a defendant who later elects to represent himself.
9 Tr. of Colloquy, Jan. 10, 2018, at 8-9.
10 Tr. of Trial, Feb. 6, 2018, at B-5, B-9.
6 particularized guarantees of trustworthiness.11 Crump does not suggest that the
hospital records were not trustworthy, and they were admissible under a firmly
rooted hearsay exception.12
(12) Finally, Crump’s claim that the State violated Superior Court Criminal
Rule 16 also does not provide a basis for reversal. The State provided the hospital
records to Crump’s counsel. Crump conceded at his pro se colloquy that he could
not review the records and later stipulated to their admissibility. We find no plain
error with respect to the production or admission of the hospital records.
The Internal Affairs Investigation
(13) Crump’s second argument on appeal is that the State violated his right
to Brady material by failing to disclose to Crump that Keith Boris, one of the officers
who investigated the stabbing, was later placed on administrative leave, and by
calling Officer Boris’s supervisor, rather than Boris, to testify at trial.
(14) Officer Boris was a trainee on the Dover Police force when he and his
field training officer, Corporal Mast, responded to the scene of the stabbing outside
Irish Mike’s and then to the hospital where Gross had been taken.13 They spoke to
11 McGriff v. State, 781 A.2d 534, 538 (Del. 2001).
12 DEL. R. EVID. 803(6) (records of a regularly conducted activity); DEL. R. EVID. 803(4) (statements made for purposes of medical treatment).
13 Tr. of Trial, Feb. 6, 2018, at B-35, B-40-41.
7 witnesses and collected the knife after it was removed from Gross’s back by hospital
personnel.14 Corporal Mast asked Gross who had stabbed her, and she identified
Crump.15 Officer Boris prepared the report of the stabbing investigation, but he did
not testify at Crump’s preliminary hearing or at trial. On or about January 11, 2018,
approximately six months after the stabbing and approximately four weeks before
Crump’s trial began, Officer Boris was involved in an alleged drunken driving and
hit-and-run incident. He was placed on administrative leave pending an internal
affairs investigation. The Delaware State News reported the incident on January 16,
2018, approximately three weeks before Crump’s trial. Corporal Mast, but not
Officer Boris, testified at Crump’s trial.
(15) We conclude that there was no plain error. Even assuming that
information concerning Officer Boris’s arrest and an incomplete internal affairs
investigation was favorable under Brady and that it was suppressed by the State,
there was no prejudice. Evidence of Boris’s arrest and investigation would not have
been admissible for the purpose of impeaching Officer Boris, if he had testified,
14 Id. at B-53-55, B-67.
15 Id. at B-42-43.
8 because he had not been convicted.16 It also was not admissible for the purpose of
impeaching Corporal Mast’s testimony.17
(16) Nor was it plain error for the State to call Corporal Mast but not Officer
Boris. The State generally may select which witnesses to call during the presentation
of its evidence.18 It need not call witnesses whose testimony would be merely
cumulative.19 Corporal Mast was Officer Boris’s supervising officer on the night of
the stabbing and testified that he was with Officer Boris when Boris placed the knife
into evidence packaging and every time Boris was speaking with witnesses.20 It is
not clear what non-cumulative testimony Officer Boris could have offered.
Moreover, it appears that the police report that Officer Boris prepared was produced
16 See Gist v. State, 1987 WL 38069, at *3 (Del. July 10, 1987) (“Evidence of arrest or indictment has been widely regarded as inadmissible for the purpose of impeaching a witness in criminal cases because arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty.” (internal quotations omitted). 17 See Dollard v. State, 838 A.2d 264, 267 (Del. 2003) (“Rule 609(a) does not permit the impeachment of a witness through evidence of another person’s convictions . . . .”).
18 See Cooper v. State, 453 A.2d 800, 801 (Del. 1982) (“[T]he State is usually entitled to prove its case through witnesses it chooses . . . .”).
19 Cf. Harris v. State, 2014 WL 3888254 (Del. Aug. 7, 2014) (finding no plain error where prosecutor told the jury during opening statement that they would hear from a witness whose child found a gun in their yard but then prosecutor did not call that witness because the “additional testimony would have been largely cumulative”).
20 Tr. of Trial, Feb. 6, 2018, at B-54, B-67.
9 to the defense—if Crump wanted to call Officer Boris as a witness, he could have
done so.
Prosecutorial Misconduct
(17) As his third claim of error, Crump argues that the prosecutor engaged
in misconduct. Specifically, Crump claims that the prosecutor misled the Court and
the jury about Corporal Mast’s role in the investigation, elicited false testimony from
a witness by asking leading questions, incorrectly stated during her closing argument
that three witnesses had identified Crump as the perpetrator, and asked the jury to
find the defendant guilty.
(18) We find no plain error with respect to any of these arguments. Crump’s
assertion that the prosecutor misled the Court about Corporal Mast’s role is not
supported by the record. To the extent that the prosecutor asked leading questions,
the number of such questions was minimal and Crump did not object. 21 Moreover,
Crump’s claims that certain witnesses testified falsely are based on purported
inconsistencies in the evidence. But it was within the province of the jury to assess
the witnesses’ credibility and to determine whether any inconsistencies created a
21 Fields v. State, 2005 WL 3200359 (Del. Nov. 28, 2005).
10 reasonable doubt as to Crump’s guilt. We also find no error in the prosecution’s
asking the jury to find the defendant guilty.22
(19) Crump’s assertion that the prosecutor incorrectly stated that three
eyewitnesses identified Crump as the perpetrator also fails to demonstrate plain
error. Crump contends that Devon Wilson, one of the eyewitnesses who testified at
trial, did not identify Crump. The record reflects that Wilson testified that he had
seen Crump, whom Wilson recognized but did not know by name, sitting with a
group of people on a ledge outside Irish Mike’s on the night of the stabbing, and that
Wilson had given cigarettes to people in the group a number of times during the
evening.23 Wilson further testified that he saw Gross involved in a physical
altercation with one of the people who had been sitting on the ledge.24
(20) To the extent that Wilson’s testimony fell just short of explicitly
identifying Crump as Gross’s assailant, we find that the prosecutor’s implicit
suggestion during closing arguments that Wilson identified Crump did not rise to the
22 Cf. Spence v. State, 129 A.3d 212, 228-29 (Del. 2015) (holding that State’s use during its closing argument of a slide that displayed the words “[t]he defendant is guilty of all the charges against him” was improper but did not rise to the level of plain error, and suggesting that the impropriety would have been cured by the use of a qualifier, such as “the evidence demonstrates” that “the defendant is guilty”).
23 Tr. of Trial, Feb. 5, 2018, at A-58-59, A-62-63, A-65-66.
24 Id. at A-59, A-66.
11 level of prosecutorial misconduct.25 The prosecutor’s statement that Wilson had
identified Crump as the perpetrator was a rational inference from the evidence
presented.26 In any event, any error was not unduly prejudicial. The identification
of Crump as the perpetrator was not close: Gross and her best friend, Shunaira
Bowers, both identified Crump as Gross’s attacker; Gross testified that she and
Crump had been friends for approximately five years; Bowers testified that she was
familiar with Crump because she had previously seen Crump and Gross together;
and Crump did not present any evidence or elicit any testimony that called his
identification into question.27
Testimony of Surveillance Video Owner
(21) Crump next argues that the Superior Court erred by allowing Samuel
Chick—a local business owner who provided the State with surveillance video of
the street near Irish Mike’s from the night of the stabbing—to testify regarding who
25 See Jones v. State, 2015 WL 6941516, at *2 (Del. Nov. 10, 2015) (“This Court’s review of prosecutorial misconduct requires a two-step analysis. First, we determine whether misconduct has occurred. If it has not, our analysis ends. If it has, then we must analyze the misconduct under the framework outlined in Hughes v. State to determine whether it unduly prejudiced the defendant and thus amounted to reversible error. In Hughes, this Court adopted a three-factor balancing test to determine whether prosecutorial misconduct prejudiced the defendant such that it justifies reversal: ‘(1) the closeness of the case, (2) the centrality of the issue affected by the error, and (3) the steps taken to mitigate the effects of the error.’” (citations omitted)).
26 See id. (closing arguments may include statements that are supported by the evidence presented or are direct, rational inferences from the evidence presented).
27 Tr. of Trial, Feb. 5, 2018, at A-70-73, A-77-78.
12 he “thought” committed the crime. Crump contends that the testimony constituted
opinion testimony by a lay witness because Chick was not a witness to the crime and
therefore had no basis on which to identify the perpetrator. Crump did not object to
Chick’s testimony at trial, and he chose not to cross-examine Chick.
(22) Chick owned a business near Irish Mike’s. He testified that on the
morning of July 8, 2017 he heard that there had been an incident near the front of
his shop overnight.28 Chick went outside and saw blood on the sidewalk.29 He then
began reviewing the video from his surveillance cameras.30 He stated that he
identified a time on the video when he “saw police officers walking up and down
the street.”31 Chick testified that he then “went back in the video to see how far back
I could see” “the person who I think committed it.”32 Once he “saw the person who
I thought perpetrated the stabbing sitting on the stoop, coming up and sitting down,”
he “took the clip” of the video and provided it to the police.33 The video and certain
28 Tr. of Trial at B-11.
29 Id.
30 Id. at B-12.
31 Id. at B-13.
32 Id.at B-19.
33 Id. at B-13. See also id.at B-19-20 (Q: “[A]t this point on the screen the individuals who are sitting and standing and sitting on your stoop/planter box have moved away and there’s now two people standing to the right and one standing to the left . . . is that the same person that you had tracked from the beginning to the end of making this surveillance?” A: “Yeah. The person who
13 still photos that were created from the video were admitted into evidence. The
stabbing was captured on those images, though the perpetrator’s face is obscured.
(23) Chick did not testify that Crump was the perpetrator. He merely
explained that he determined where to begin the video excerpt by looking at the
characteristics of the person shown on the video to be the perpetrator and reviewing
the tape backward in time until Chick first saw that person on the video. To the
extent Chick’s testimony even constituted an opinion, it was not inadmissible
because it did not identify Crump as the perpetrator, was limited to explaining how
Chick clipped the video based on his observations about the images on the video,
and was not based on any specialized knowledge.34
(24) Moreover, even if Chick’s testimony was an inadmissible lay opinion,
its admission would have been harmless. The jury viewed the video and could make
its own determination about whether the person sitting in front of Chick’s store at
the beginning of the video was the person who grappled with Gross later in the video.
And several eyewitnesses who were familiar with Crump—including Gross, who
is standing right in front of the planter box who put his jacket up like this (indicating) and put the hat on is the same person.”).
34 See DEL. R. EVID. 701 (“If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”).
14 had known Crump for several years—identified Crump as the assailant.35 We find
no plain error with respect to Chick’s testimony.
Increased Security During Closing Arguments
(25) Crump’s fifth claim of error is that he was prejudiced by the Superior
Court’s decision to allow additional security measures in the courtroom during the
final day of trial. The presentation of evidence at trial had been completed on
February 6, 2018. Only the presentation of closing arguments and jury instructions
remained to be completed on the final day of trial. On February 7, Crump was not
transported to court. In a courtroom conference, in which the prosecutor and
Crump’s standby counsel participated, a corrections officer reported that Crump had
not been transported because he been involved in an altercation with another inmate
overnight and then had been placed on suicide watch. When Crump was transported
for the final day of trial on February 9, the Court granted the State’s request that
extra security measures be permitted. The extra security precautions included a
requirement that Crump deliver his closing statement while standing at counsel table,
instead of at the podium, and enhanced officer coverage in the courtroom.
35 See Cooke v. State, 97 A.3d 513, 546-47 (Del. 2014) (detective’s testimony that voice on 911 call belonged to defendant was lay opinion testimony, but its admission was harmless because the jury heard the recordings of the calls, watched a videotape of the defendant’s post-arrest interview, and heard the defendant speak in court, and because defendant’s girlfriend testified that she was certain that the voice on the 911 call was defendant’s).
15 (26) The United States Supreme Court has held that “the conspicuous, or at
least noticeable, deployment of security personnel in a courtroom during trial” is not
“the sort of inherently prejudicial practice that, like shackling, should be permitted
only where justified by an essential state interest specific to each trial.”36 In this
case, we cannot conclude that the extra precautions presented a scene to the jurors
that was “so inherently prejudicial as to pose an unacceptable threat to defendant’s
right to a fair trial,” and Crump has failed to show actual prejudice. 37 We therefore
find no plain error.
Cumulative Error
(27) Finally, Crump claims that the alleged errors cumulatively resulted in
an unfair trial. When there are multiple errors in a trial, this Court weighs their
cumulative effect to determine if, combined, they are “prejudicial to substantial
rights so as to jeopardize the fairness and integrity of the trial process.” 38 Because
all of Crump’s assignments of error are without merit, his claim of cumulative error
also fails.39
36 Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986). 37 See id. at 572 (finding no prejudice from the presence of four additional armed guards seated in the front row of the courtroom during trial of six defendants).
38 Johnson v. State, 2015 WL 8528889, at *3 (Del. Dec. 10, 2015) (internal quotations and modification omitted).
39 Id.
16 NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura Justice