White v. State

816 A.2d 776, 2003 Del. LEXIS 75, 2003 WL 292132
CourtSupreme Court of Delaware
DecidedFebruary 6, 2003
Docket354,2002
StatusPublished
Cited by23 cases

This text of 816 A.2d 776 (White v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. State, 816 A.2d 776, 2003 Del. LEXIS 75, 2003 WL 292132 (Del. 2003).

Opinion

STEELE, Justice.

In April 2002, a Superior Court jury found the Appellant, Waverly White, guilty of Robbery in the First Degree, 1 Assault *778 in the Third Degree, 2 and Possession of Drug Paraphernalia. 3 In this appeal, White asserts three grounds of error: (i) the State’s untimely disclosure of a witness’ criminal record denied him the right to a fair trial; (ii) the prosecutor’s comments regarding the victim’s absence from trial amounted to plain error; and (iii) the trial judge erred by denying his motion for judgment of acquittal.

I.

White and co-defendant, Kathy Dottery, allegedly encountered three men outside a tavern. One of the three men, Steve Swift, was wearing silver necklaces. White allegedly pushed Swift to the ground, grabbed Swift’s chains, and walked off.

Swift’s companion, Frank Petroccitto, allegedly chased after White and demanded the return of the necklaces. Petroccitto testified to grabbing White in an attempt to neutralize him. White then punched Petroccitto and threw Petroccitto to the ground. Petroccitto again chased after White and caught him from behind. White allegedly brandished a semi-automatic weapon, struggled with Petroccitto, and ran into the woods.

' The police arrived at the scene within minutes and soon apprehended White and Dottery. The police drove Petroccitto to the area and he identified White and Dot-tery as the attackers. The police searched White and found a crack pipe. The necklaces and gun were never located.

II.

White asserts that the State’s disclosure of Petroccitto’s criminal history a week before trial should be considered an untimely discovery disclosure, and therefore, a Brady 4 violation. In Brady, the United States Supreme Court held that the State cannot suppress evidence favorable to a defendant if that evidence is material either to guilt or to punishment. 5 If the evidence is both favorable and material, a determination must be made whether its “delayed disclosure precluded ... effective use of the information at trial.” 6 When “a defendant is confronted with delayed disclosure of Brady material, reversal will be granted only if the defendant was denied the opportunity to use the material effectively.” 7

Here, defense counsel had the opportunity to object to any untimely disclosure or assert a Brady violation before trial, but chose not to do so. In addition, defense counsel had a week to decide how to use the criminal history the State did disclose. At trial, defense counsel questioned Pe-troccitto outside the presence of the jury and after hearing Petroccitto’s responses, voluntarily chose not to use the criminal history during cross-examination before the jury. Defense counsel claims the delayed disclosure resulted in the inability to subpoena any further criminal records. Defense counsel, however, neither asked for a continuance nor objected at trial. This untimely disclosure did not deny defense counsel an opportunity to use the criminal history effectively and therefore does not constitute a Brady violation.

*779 III.

In a related and almost synonymous argument, White also asserts that the untimely disclosure denied him the right to cross-examine Petroccitto effectively about multiple arrests for falsely reporting an incident. The record reveals that defense counsel never attempted to cross-examine Petroccitto in front of the jury about his criminal record, and agreed to the State’s suggestion that voir dire examination take place outside the presence of the jury. Defense counsel merely asked to clarify Petroccitto’s record, and after doing so, chose not to make a further inquiry. Although Petroccitto’s credibility was an important issue, accepting White’s argument would require the trial judge to ask the questions for counsel. The disclosure, although untimely, provided enough information for defense counsel to make an inquiry. Accordingly, White cannot establish a Brady violation on the theory that his trial tactics were driven by untimely disclosure.

IV.

White next asserts plain error occurred when the prosecutor explained why Swift did not appear at trial. At trial, Petroccitto testified that Swift moved to Chicago for work-related reasons. Defense counsel argued during his summation that the State’s case hinged on the robbery charge and that the State’s case was weak because the jury had “not heard from the robbery victim.” 8 He repeated the argument about the missing robbery victim later in his summation. 9 The prosecutor responded in rebuttal as follows:

Mr. Swift is another part of this case. There is again no law or rule, although the innuendo is such from [defense counsel] that he would have to have Mr. Swift here for there to be a good case, when you’ve got Mr. Petroccitto and Kathy Dottery both as eyewitnesses, seeing that man snatch this silver necklace of Mr. Swift. You don’t need Mr. Swift here. And you were even given testimony as to where Mr. Swift is; Chicago with a new job. 10

Although White did not object to this remark, he now argues the State improperly bolstered Petroccitto’s testimony by implying that Swift’s testimony would support the State’s position. He also argues that the reference to Chicago “implied Swift’s cooperation but for the distance needed to return to testify in Delaware.” 11 Improper vouching occurs when the prosecutor implies some personal superior knowledge, beyond that logically inferred from the evidence at trial, that the witness has testified truthfully. 12 When analyzing the impact of prosecutorial vouching, this Court has approved the three-prong test formulated in Hughes v. State. 13 However, we need not analyze the “impact” of the vouching because the prosecutor’s remarks here were appropriate. The prosecutor merely repeated Petroccitto’s testimony about Swift’s whereabouts, defense counsel’s contention from his summation, and argued that the jury should rely on testimony they had heard from witnesses who had been subject to cross examination. The explanation for Swift’s absence, given by a witness subject to cross, was neither corroborated nor made more credible simply by the prosecutor’s reference to it *780 during rebuttal summation. No vouching occurred.

V.

Finally, White asserts that the trial judge improperly denied the motion for judgment of acquittal on the charge of Robbery in the First Degree.

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Bluebook (online)
816 A.2d 776, 2003 Del. LEXIS 75, 2003 WL 292132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-del-2003.