State v. v. Morris-Whitt

• Court: Superior Court of Delaware
• Decided: September 15, 2023
• Docket: 2205008809 & 22010077496
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ) WALIKE PARHAM ) ID Nos. 2205008776; 2201008514 KYAIR KEYS ) ID Nos. 2205008790; 2201008498; 2201008460 JAHMIR MORRIS-WHITT, ) ID Nos. 2205008809; 22010077496 ) Defendants. )

Submitted: July 26, 2023 Decided: September 15, 2023

ORDER

Upon Defendant Jahmir Morris-Whitt’s Motion to Sever, GRANTED in part, DENIED in part, and DEFERRED in part.

Jillian L. Schroeder, Esquire and Samuel B. Kenney, Esquire, Deputy Attorneys General, DEPARTMENT OF JUSTICE, 820 North French Street, Wilmington, Delaware 19801, Attorneys for the State.

Dade D. Werb, Esquire, GIORDANO, DELCOLLO, WERB, & GAGNE, LLC, 5315 Limestone Road, Suite 210, Wilmington, DE 19808, Attorney for Defendant Walike Parham.

Eugene J. Maurer, Jr., Esquire and Molly R. Dugan, Esquire, 1201-A King Street, Wilmington, DE 19801, Attorneys for Defendant Kyair Keys.

Kevin P. Tray, Esquire, 1400 North Market Street, Wilmington, Delaware 19801, Attorney for Defendant Jahmir Morris-Whitt.

WHARTON, J. This 15th day of September, 2023, upon consideration of Defendant Jahmir

Morris-Whitt’s Motion to Sever;1 the State’s Responses,2 and the record in this case,

it appears to the Court that:

1. On May 23, 2022, a 44 count indictment was returned against Jahir

Morris-Whitt (“Morris-Whitt”); Markel Richards (“Richards”); Walike Parham

(“Parham”); and Kyair Keys (“Keys”).3 All of the seven incidents alleged in the

Indictment occurred between January 14, 2022 and January 22, 2022, but not all of

the defendants are charged in each incident. Specifically, Counts 1 and 2 charge

Richards and Parham with theft of a motor vehicle and conspiracy involving the theft

in Newark of a 2012 Kia Optima occurring on January 14th.4 Counts 3 through 11

charge Morris-Whitt and Keys with attempted assault first degree (two counts) and

related charges for a shooting incident occurring in the 2200 block of North

Washington Street in Wilmington, also on January 14th.5 Counts 12 and 13 charge

Richards and Parham with theft of a motor vehicle and conspiracy involving the theft

of a Mazda 3 sedan occurring in Wilmington on January 20th. The Kia Optima stolen

in Count I was utilized to facilitate the theft of the Mazda.6 Counts 14 through 22

1 D.I. 24. (Docket Items numbers are from ID No. 2201007496.) 2 D.I. 25. 3 D.I. 5. 4 Id.; Def.’s Mot. to Sever, D.I. 24; State’s Resp, D.I. 25. 5 Id. 6 Id.

1 charge Richards, Parham and Morris-Whitt with attempted murder first degree (two

counts) and related offenses involving a shooting on the east side of Wilmington

occurring on January 20th. The Kia Optima was recovered and Morris-Whitt was

arrested.7 Counts 23 through 29 charge Richards, Parham and Keys with attempted

murder and related offenses involving a shooting on South Heald Street in

Wilmington occurring on January 22nd.8 Counts 30 through 33 charge Keys with

reckless endangering first degree and related charges involving a shooting in the 300

block of W. 7th Street in Wilmington on January 22nd.9 Counts 34 through 37 charge

Keys with disregarding a police officer’s signal and various weapons offenses

involving a high-speed chase in Wilmington later on January 22nd.10 Counts 38 and

39 charge Richards with weapons offenses occurring on January 22nd.11 Counts 40

and 41 charge Parham with weapons offenses occurring on January 22nd.12 Counts

42 through 44 charge Keys with resisting arrest and traffic offenses occurring on

January 22nd.13 On May 1, 2023, Richards resolved the charges against him by

7 Id. 8 Id. 9 Id. 10 Id. 11 Id. 12 Id. 13 Id.

2 pleading guilty to a number of them.14 Final case reviews are pending for the

remaining defendants.

2. Morris-Whitt seeks severance both of certain charges and from his

codefendants. He asks the Court to sever: (1) his charges of possession of a firearm

by a person prohibited (“PFBPP”) - Counts 9 and 19, from his other charges; (2) the

counts associated with his charges from January 14th from those from January 20th;

and (3) his trial from his codefendants’ joint trial scheduled for December 4, 2023.15

3. In support of his request to sever the PFBPP charges, he contends that

it would be unduly prejudicial to him if the jury were to learn that he was prohibited

from possessing a firearm due to his prior criminal record.16 He contends that the

charges from the incident on January 20th should be severed from those on the 22nd

because: (1) the strength of the evidence in each incident differs significantly and

the jury might cumulate the evidence of the various crimes and find him guilty when,

if considered separately, it would not; 17 (2) the jury may use the evidence of one of

the crimes to infer a general criminal disposition of the defendant in order to find

him guilty;18 and (3) he may be prevented in presenting different and separate

14 See, State v. Richards, ID No 2205008758, D.I. 13. 15 Def.’s Mot. to Sever, at 8, D.I. 24. 16 Id. at 9. The Indictment alleges in both Counts 9 and 19 that Morris-Whitt previously was convicted of the violent felony of reckless endangering first degree, D.I. 5. 17 Id. at 10-12. 18 Id. at 12.

3 defenses to the different charges19. Finally regarding severance from his

codefendants, he argues that there is an absence of substantial independent

competent evidence against him in the January 14th case, whereas his codefendants

are much more closely tied to that incident and to each other.20 He further argues

that it is “unavoidable” that he will present defenses antagonistic to his codefendants

and that the jury will have difficulty segregating the State’s case as between his

codefendants and him.21

4. In response, the State does not oppose severance of Morris-Whitt’s

PFBPP charges.22 It does oppose severance of the charges from January 14 th from

those from the 20th and the severance of his trial from that of the other defendants..23

The State maintains that both sets of Morris-Whitt’s charges are properly joined

since they are of the same general character, involve a similar course of conduct, and

occurred within a relatively short span of time.24 The State discounts the possibility

that the jury will cumulate the evidence from both incidents to find him guilty of

both where it might not do so if the incidents were tried separately. It argues that

the crimes are “inextricably intertwined” because it intends to offer evidence in the

19 Id. at 12-14. 20 Id. at 14-15. 21 Id. at 15-16. 22 State’s Resp. to Def.’s Mot top Sever, at 5, D.I. 25. 23 Id. 24 Id. (citing Younger v. State, 496 A.2d 546, 550 (Del. 1985).

4 form of a recovered firearm from January 20th as proof of his involvement in the

January 14th shooting, among other overlapping evidence.25 In its view, proper

instructions directing the jury to consider Morris-Whitt’s liability for each offense

separately and the evidence for each offense separately are sufficient to alleviate any

cumulative effect from the joinder of the two incidents.26 Further, the notion that

Morris-Whitt might be precluded by virtue of joinder of the incidents from

presenting an alibi defense to the January 14th incident thorough his own testimony

is, at best, hypothetical and insufficient to warrant severance.27 Finally, the State

maintains that Morris-Whitt is properly joined with his codefendants.28 It contends

that there is substantial independent competent evidence of Morris-Whitt’s guilt; he

has not shown mutually antagonistic defenses going to the core of each defendant’s

defense, only potential hostility or inconsistent defenses; and any prejudice from a

joint trial can be mitigated by a jury instruction directing the jury not to consider the

evidence against one defendant in determining the guilt of the others.29

5, Under Delaware law, a criminal defendant may be tried simultaneously

for two or more offenses.30 Offenses will only be tried together if they are “of the

25 Id. at 8-9. 26 Id. at 10. 27 Id. at 11. 28 Id. at 12-15. 29 Id. 30 Super. Ct. Crim. R. 8(a).

5 same or similar character or are based on the same act or transaction or on two or

more acts or transactions connected together or constituting parts of a common

scheme or plan.”31 The Court, however, has discretion to sever if the defendant

shows “a reasonable probability that substantial prejudice may result from a joint

trial.”32 The Defendant must show that the alleged prejudice manifestly outweighs

the “dominant concern” of judicial economy and efficiency.33 A showing of

hypothetical prejudice is not enough.34

6. Delaware recognizes three types of prejudice:

(1) when the jury may cumulate evidence of the various crimes charged and find guilt when, if considered separately, it would not; (2) when the jury may use evidence of one crime to infer a defendant’s general criminal disposition in order to determine guilt of another crime/crimes; (3) when a defendant may be subject to embarrassment or confusion in presenting different and separate defenses to different charges.35

31 Id. 32 Skinner v. State, 575 A.2d 1108, 1118 (Del. 1990) (citing Bates v. State, 386 A.2d 1139, 1141 (Del. 1978)); see Super. Ct. Crim. R. 14. 33 State v. Howard, 1996 WL 190045 at *4 (Del. Super. 1996) (citing Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964); United States v. Kenny, 645 F.2d 1232 (9th Cir. 1981)). 34 Skinner, 575 A.2d at 1118 (citing Bates, 386 A.2d at 1142). 35 Ashley v. State, 85 A.3d 81, 84–85 (Del. 2014) (citing Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988)).

6 7. When deciding whether to grant severance, the Court must consider

each submission on a case-by-case basis.36 Factors to consider include the number

of charges,37 the temporal and geographic proximity between acts,38 and the

reciprocal admissibility of evidence.39 The Court also considers judicial economy.40

8. The Court agrees with the parties and finds severance of the PFBPP

charges in Counts 9 and 19 appropriate. Morris-Whitt’s Motion to Sever the PFBBB

charges is GRANTED.

9. Neither Morris-Whitt, nor the State specify how they would prefer that

the PFBPP charges be resolved. However, it makes no sense to the Court in terms

of judicial economy to hold a separate trial on the PFBPP charges before a new jury

at some future date where the State would be required to re-present its evidence on

the possession element of the charge, rather than merely presenting its evidence as

to Morris-Whitt’s felony conviction to the same jury that already heard the

possession evidence. Therefore, the Court will hold a bifurcated trial, either a jury

trial with the same jury or a bench trial at the parties’ election. This determination

36 Lampkins v. State, 465 A.2d 785, 794 (Del. 1983). 37 McKay, 382 A.2d, at 262. 38 State v. Hardy, 2019 WL 4678123 (Del. Super. 2019). 39 Wiest, 542 A.2d, at 1196 n. 3 (citing Bates, 386 A.2d at 1142); see Getz v. State, 538 A.2d 726, 734 (Del. 1988) (outlining the six guiding factors in determining admissibility of evidence of other crimes). 40 Mayer v. State, 320 A.2d 713, 717 (Del. 1974).

7 is consistent with the Court’s past practice and has the imprimatur of the Delaware

Supreme Court.41

10. It is clear to the Court that the two incidents in which Morris-Whitt is

charged are of the same or similar character. Both incidents occurred in Wilmington

and involved gunmen exiting vehicles and firing a number of shots at unknown

individuals. The incidents were separated by less than a week, are sufficiently alike

to be part of a common scheme and demonstrate a common modus operandi. Thus

the Court finds that the incidents are properly joined under Superior Court Criminal

Rule 8(a).42

11. Morris-Whitt does not argue that the offenses were improperly joined,

however. Instead, he argues that he is entitle to severance under Superior Court

Criminal Rule 14 because he will be prejudiced by joinder.43 In particular, he

contends that: (1) the jury may cumulate the various charges against him and find

him guilty, when if considered separately, it would not; (2) the jury may use the

evidence of both sets of charges to infer a general criminal disposition to find guilt;

and (3) he may be subject to embarrassment or confusion in presenting different and

separate defenses to different charges.44 In support of the last type of prejudice he

41 Monceaux v. State, 51 A.3d 474 (Del. 2012). 42 Super. Ct. Crim. R. 8(a). 43 Def.’s Mot to Sever at 8-9, D.I. 24. 44 Id. at 12-13.

8 cites as an example, the possibility that the January 14th case might allow for him to

testify as to an alibi defense, but because of the possible inclusion of his statement

in the January 20th case, he would be discouraged from doing so due to its apparent

lack of credibility.45 He also cites as an example a potential prejudicial level of jury

confusion because of “the anticipated range of anticipated defenses” ranging from

lack of mens rea to alibi.46

12. Under Rule 14, only when joinder will substantially prejudice a

defendant will severance be appropriate.47 The burden of demonstrating prejudice

is on the defendant and “mere hypothetical prejudice” is insufficient.48 Such

prejudice must be “so manifestly prejudicial that it outweighs the dominant concern

with judicial economy and compels the Court’s discretion to sever.”49

13. None of the arguments Morris-Whitt presents are persuasive. Morris-

Whitt argues that there is a substantial disparity in the strength of the evidence in the

two incidents such that a jury likely would cumulate the evidence from the two and

convict him of the weaker January 14th incident where it might not do so if the

incidents were severed. But, that argument ignores the fact that the State intends to

present evidence that a firearm ballistically matching one used in the January 14 th

45 Id. at 13. 46 Id. 47 Skinner v. State, 575 A.2d 1108. 48 Id. at 1118. 49 State v. Howard, 1996 WL 190045, at *4.

9 incident was discarded in the path of his flight in the January 20 th incident.50 Such

evidence would be admissible at a severed trial of the January 14th incident. So,

even accepting that there may be some disparity in the relative strengths of the

evidence in each incident (which Morris-Whitt overstates in the Court’s view), there

would be no diminution in any prejudice to him if the incidents were severed,

because much of the same evidence would be presented against him in a severed

trial as it would be in a joint trial.

14. Morris-Whitt is charged in only two incidents spanning less that a

week’s time. After severance of the PFBPP charges, there remain 13 counts against

him - two counts of attempted assault first degree, two counts of possession of a

firearm during the commission of a felony (“PFDCF”), one count of reckless

endangering, one count of criminal mischief and one count of conspiracy second

degree from the January 14th incident, and two counts of attempted murder first

degree, one count of PFDCF, one count of conspiracy first degree, one count of

criminal mischief and one count of resisting arrest from the January 20 th incident.51

Of those 13, three are PFDCF, two are conspiracies, two are criminal mischief, one

is resisting arrest, and two allege attempted murder first degree. The last charges –

two counts of attempted assault first degree and reckless endangering first degree

50 State’s Resp. to Def.’s Mot. to Sever, at 3, D.I. 23. 51 D.I. 5.

10 often are lesser included offenses of attempted murder first degree. A fair summary

of the allegations is that on two occasions Morris-Whitt and his codefendants agreed

to shoot at people, shot at people, damaged property when they shot at people, and

fled when the police arrived. Under these facts, the Court concludes that the charges

against Morris-Whitt are neither so numerous, nor so diverse that they would cause

the jury to infer a general criminal disposition in order to find him guilty.

15. Morris-Whitt also contends that if the two incidents are not severed, he

will be prejudiced in presenting different and separate defenses to different charges,

citing a possible intention to present an alibi defense through his own testimony in

the January 14th incident and a mens rea defense or insufficiency of evidence defense

in the other. The prejudice Morris-Whitt claims here is merely hypothetical

prejudice, and not particularly substantial hypothetical prejudice at that. The Court

suspects there is little to no chance Morris-Whitt will testify in either a severed or

joint trial. If he were to testify, he runs the risk of being impeached with his prior

violent felony conviction, negating the rationale for his request to sever the PFBB

charges.52 Moreover, Morris-Whitt has not provided the Court with any specific

bases that might support any of his prospective defenses. Morris-Whitt’s request to

sever his January 14th charges from his January 20th charges is DENIED.

52 See, D.R.E. 609. The Court makes no ruling on the admissibility of that conviction here, but merely points out the possibility of its admissibility.

11 16. Lastly, Morris-Whitt moves to sever his trial from that of his

codefendants. In support of this request, he cites the absence of substantial

independent competent evidence of his guilt, “unavoidable” antagonistic defenses

with his codefendants, and the difficulty in segregating the State’s evidence as

between his codefendants and him.53 One of Morris-Whitt’s codefendants –

Richards – has resolved his charges, while the others – Keys and Parham have not.

Before determining whether Morris-Whitt’s defense is antagonistic to that of his

codefendants and what evidence a jury would need to segregate as between him and

them, it would be helpful to the Court to know whether any of his codefendants will

resolve their charges before trial. After they have had their final case reviews, which

are scheduled for October, the Court will be in a better position to determine this

portion of Morris-Whitt’s severance motion. Accordingly, a decision on whether to

sever Morris-Whitt’s trial from his codefendants’ trial is DEFERRED until after

their final case reviews.

THEREFORE, for the reasons stated above, Defendant Jahmir Morris-

Whitt’s Motion to Sever the two counts of possession of a firearm by a person

prohibited, Counts 9 and 19, is GRANTED. Those counts shall be tried in a

bifurcated trial, either by the jury empaneled to try the other counts against him, or,

if the parties elect, by the Court. His Motion to Sever offenses occurring on January

53 Def.’s Mot. to Sever, at 14-15, D.I. 24.

12 14, 2022 and January 20, 2022 is DENIED. His Motion to Sever his trial from that

of his codefendants, Walike Parham and Kyair Keys is DEFERRED until after their

final case reviews.

IT IS SO ORDERED.

/s/ Ferris W. Wharton Ferris W. Wharton, J.