Wilson v. State

• Court: Supreme Court of Delaware
• Decided: January 25, 2022
• Docket: 201, 2020
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

BRIAN WILSON, § § No. 201, 2020 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID No. N1901009072 STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: November 10, 2021 Decided: January 25, 2022

Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices, constituting this Court en Banc.

Upon appeal from the Superior Court of the State of Delaware: AFFIRMED.

Zachary A. George, Esquire (argued), Hudson Jones Jaywork & Fisher, Dover, Delaware, and Anthony A. Figliola, Jr., Esquire, Greto Law, Wilmington, Delaware, for Defendant Below, Appellant Brian Wilson.

Elizabeth R. McFarlan, Esquire (argued), Delaware Department of Justice, Wilmington, Delaware, for Plaintiff Below, Appellee State of Delaware. SEITZ, Chief Justice:

A Superior Court jury convicted Brian Wilson of first-degree murder for

hiring someone to kill Allen Cannon. On appeal, Wilson raises three claims of

error—first, the court abused its discretion when it refused to allow testimony about

a witness’s reputation as a snitch introduced to counter the witness’s incriminatory

statement about Wilson and the murder; second, the court erred when it overruled a

hearsay objection and admitted text messages that infer Wilson was the person

responsible for Cannon’s murder; and third, the State committed a Brady violation

when it failed to disclose a witness’s agreement with federal prosecutors to testify

in Wilson’s trial in exchange for a possible lighter sentence.

We affirm Wilson’s convictions. The testimony about the witness’s

reputation as a prison snitch was inadmissible character evidence not subject to any

exceptions. And while the State concedes that the text messages were inadmissible,

the Superior Court’s error in admitting them was harmless. Finally, we agree with

the Superior Court that the impeachment evidence resulting from the alleged Brady

violation was immaterial and does not undermine confidence in the verdict given the

witness’s favorable testimony for the defense and the other evidence supporting

Wilson’s convictions beyond a reasonable doubt.

2 I.

According to the evidence at trial, in the early hours of June 25, 2016, an

unidentified individual called 911 to complain about people gambling in front of her

neighbor’s house. When a Wilmington Police Department detective arrived, the

group scattered. They were involved in a high stakes dice game, and Wilson was

part of this game with $10,000 in his pockets. Before the game, Cannon asked Artie

Pratt to steal the money from Wilson. Wilson owed Cannon money, and Cannon

wanted to collect. Pratt attempted to take the money at the dice game but was

unsuccessful.

Wilson, frustrated that Cannon and Pratt tried to rob him, hired someone to

kill Cannon. Sometime between the dice game and the next morning, Wilson

contacted Robert Shepard and asked if Shepard knew someone “that wanted to put

some work in[.]”1 Shepard later testified this meant he was looking to hire someone

to kill Cannon. Shepard told him he did not know anyone. Wilson contacted another

man named Robert Teat, also known as Bobby Dimes, and asked the same question.

Dimes arranged for an associate, Eric Ray, to kill Cannon for $10,000.

The evening after the dice game, Cannon was in a car near the location of the

dice game. Tomika Tate, Pratt’s mother, saw Cannon crying in the car. She walked

over and asked Cannon to leave with her. Cannon got out of the car but said he was

1 App. to Opening Br. at A72–73.

3 waiting for something and could not leave. About ten to fifteen minutes later,

someone fatally shot Cannon from behind. Tate was standing next to Cannon, so

close that she fell to the ground when the gunshots started. Tate testified that Ray

was the one who shot Cannon. Testimony and footage from security cameras

showed that Dimes and Ray were standing around the scene of the shooting before

it occurred, and Dimes was at the scene immediately after.

In January of 2019, a New Castle County grand jury indicted Wilson for

murder first-degree, conspiracy first-degree, and criminal solicitation first-degree.

At trial, Wilson denied any involvement in the dice game or Cannon’s murder. The

State offered as witnesses several inmates who testified that Wilson told them that

he had ordered Cannon’s murder. One of the witnesses was Timothy Keyes.

Keyes made a statement to Sergeant Robert Fox of the Wilmington Police

Department three weeks before Wilson’s trial. Keyes said Wilson admitted he had

arranged Cannon’s murder by having Dimes hire Ray to kill Cannon in retaliation

for the attempted theft. But when the State called Keyes to testify at Wilson’s trial,

he was uncooperative. He did not comply with a subpoena, and only appeared as a

witness after being served with a warrant. At trial, Keyes said he had not been

promised anything in exchange for his testimony.2 He then directly contradicted his

prior statement to Sergeant Fox, stating “I don’t know anything about—[Wilson]

2 Id. at A54–55.

4 never expressed anything to me about his case.”3 Keyes also said his prior statement

to Sergeant Fox was based on what he read in the papers.4 As a result, the State

introduced Keyes’ prior statement to demonstrate that Keyes’ story had changed

dramatically.5

Wilson’s counsel then attempted to introduce character evidence through the

testimony of Thomas Wisher. Wilson’s counsel asked Wisher, who had been in

prison with Keyes, about Keyes’ reputation. The State objected on the grounds that

Wisher would testify that other people in prison viewed Keyes as a snitch, and this

would be inadmissible hearsay and improper character evidence. The trial court

sustained the objection.6

The State also offered text messages from Pratt’s cell phone relevant to

Wilson’s guilt. Wilson’s counsel objected, arguing that, because Pratt was

unavailable to testify, the text messages were inadmissible hearsay. The State

claimed they were admissible under the business records exception to the rule

against hearsay. The Superior Court agreed and admitted the text messages.7

The jury found Wilson guilty of all charges. The Superior Court sentenced

him to a mandatory life sentence at Level V for the murder charge, along with

3 Id. at A57. 4 Id. at A56. 5 Id. at A57–60. The statement was introduced as a prior, voluntary, out-of-court statement under 11 Del. C. § 3507. 6 Id. at A76–77. 7 Id. at A38; App. to Answering Br. at B31–32; B92.

5 additional Level V time for the remaining charges.8 Wilson timely appealed his

conviction.

Shortly after filing an appeal, new information came to light. On October 21,

2020, the United States Attorney’s Office for the District of Delaware informed the

State that an Assistant United States Attorney told Keyes the Office would consider

his cooperation in Wilson’s case when recommending a sentence for federal charges.

The State informed Wilson’s counsel, and the parties sought a stay of Wilson’s

appeal and a remand to the Superior Court to consider the implications under Brady

v. Maryland,9 which we granted.

On remand, Wilson moved for a new trial or dismissal on the basis that the

State’s failure to disclose the offer to Keyes was a Brady violation. The Superior

Court held that, while the offer was evidence that could be used to impeach Keyes,

no Brady violation occurred because the State did not suppress the evidence.10 It

also found that the State was not aware of the offer until October 2020 and the State

disclosed the evidence as soon as it learned of it.11

The court also ruled that, even if the U.S. Attorney’s Office offer should have

been disclosed to the defense, it was immaterial as impeachment evidence.12 Keyes’

8 State v. Wilson, 2021 WL 1056769 at *1 (Del. Super. Mar. 19, 2021). 9 373 U.S. 83 (1963). 10 2021 WL 1056769 at *3. 11 Id. 12 Id. at *3–5.

6 testimony at trial contradicting his statement to Sergeant Fox was helpful to the

defense and impeachment of his prior statement to Sergeant Fox was unnecessary

and counterproductive.13 Finally, the court ruled that, even if the offer should have

been disclosed to the defense before trial, the other evidence at trial strongly

supported Wilson’s convictions.14

II.

On appeal, Wilson challenges two of the Superior Court’s evidentiary rulings

and raises a constitutional claim. We review a trial court’s evidentiary rulings for

abuse of discretion,15 and we review constitutional claims de novo.16

A.

Wilson argues first that the Superior Court abused its discretion when it

sustained the objection to the admission of Wisher’s testimony. He contends that

Wisher’s testimony was admissible character evidence because Keyes’ character for

truthfulness became relevant when the State introduced Keyes’ prior statement.

According to Wilson, the testimony that Keyes was viewed among prison inmates

as a snitch would show that Keyes has a reputation for untruthfulness and call into

question the credibility of his prior statement.

13 Id. at *5. 14 Id. at *6. 15 Edwards v. State, 925 A.2d 1281, 1284 (Del. 2007). 16 Waters v. State, 242 A.3d 778, 782 (Del. 2020).

7 The State counters that, because the testimony was based on what Wisher

heard from inmates that were not testifying, it was inadmissible hearsay. The State

also argues that Wisher’s testimony does not show that Keyes has a character for

untruthfulness. At most, a reputation as a snitch demonstrates that the witness is

willing to cooperate with the State.

Character evidence is generally inadmissible, but “[e]vidence of a witness’s

character may be admitted under [Delaware Rules of Evidence] 607, 608, and

609.”17 Rule 608 provides that a witness’s credibility may be attacked “by testimony

about the witness’s reputation for having a character for truthfulness or

untruthfulness,” but “only after the witness’s character for truthfulness has been

attacked.”18

Even if we accept that Keyes’ character for truthfulness had been attacked by

the State when it introduced Keyes’ prior inconsistent statement, Wilson has failed

to show that Wisher’s testimony relates to Keyes’ character for truthfulness. A

“snitch” in this context is an inmate who informs the government of what other

inmates have said or done, usually in exchange for preferential treatment. But a

snitch is not necessarily an untruthful person.

17 D.R.E. 404. 18 D.R.E. 608.

8 The distinction was made clear in the Ohio case State v. Spence.19 There, the

defense offered testimony that the prosecution’s witness had a reputation as a prison

snitch. The Court of Appeals of Ohio held that this testimony was inadmissible

character evidence to impeach a witness’s credibility because it would require the

court to “accept the notion that cooperation with authorities in the criminal

prosecution of fellow inmates equates to being untruthful.”20

We agree with this reasoning. A reputation as a snitch could arise because an

inmate truthfully informs the government of what other inmates say. While other

inmates might not tell that individual the truth, this does not mean that the inmate is

an untruthful person, just that he cannot be trusted to withhold incriminating

information from the government. Because Wisher’s testimony would have shown

only that Keyes had a reputation as a snitch and this does not directly relate to Keyes’

character for truthfulness, the Superior Court did not abuse its discretion when it

refused to admit the testimony.

B.

Next, Wilson argues that the Superior Court abused its discretion when it

admitted text messages between Pratt and another person under the business records

19 2006 WL 3438668 at *11 (Ohio Ct. App. Nov. 30, 2006). 20 Id. at *12. The court in Spence relied on Rule 608 of the Ohio Rules of Evidence to reach this conclusion. Both D.R.E. 608 and Rule 608 of the Ohio Rules of Evidence are identical to Federal Rule of Evidence 608.

9 exception to the evidentiary rule against admission of hearsay.21 The State concedes

that the text messages should not have been admitted under this exception.22 While

the error is clear, we find that it was harmless.

We have held that “[a]n error in admitting evidence may be deemed

‘harmless’ when ‘the evidence exclusive of the improperly admitted evidence is

sufficient to sustain a conviction . . . .’”23 Here, the other evidence is extensive, and

supports Wilson’s conviction. At trial, Tate confirmed the illegal dice game that

night, and that Cannon and Pratt tried to rob Wilson at the game.24 Shepard testified

that Cannon and Pratt tried to rob Wilson, that Wilson was upset about the attempted

robbery and wanted to retaliate, and that Wilson asked Shepard if he knew someone

Wilson could hire to kill Cannon.25 The State also presented evidence of extensive

contacts between Wilson and Dimes, and Dimes and Ray.26 Additionally, the State

offered security camera footage showing that Dimes and Ray were near the scene of

the crime immediately before the murder occurred. 27 Tate testified that she was

standing next to Cannon when he was shot,28 and that Ray was the one who shot

21 D.R.E. 803(6). Neither individual testified at trial. 22 Answering Br. at 18 (“The State acknowledges that the text messages were not admissible pursuant to DRE 803(6), the business record exception to the rule against hearsay.”). 23 Capano v. State, 781 A.2d 556, 597 (Del. 2001) (quoting Nelson v. State, 628 A.2d 69, 77 (Del. 1993)). 24 App. to Answering Br. at B24–26. 25 App. to Opening Br. at A70–73. 26 App. to Answering Br. at B105–07. 27 Id. at B12–13. 28 Id. at B22–23.

10 Cannon.29 The State also offered admissible text messages from Dimes’ phone sent

the day after Cannon’s murder that include a picture of Dimes holding a large

amount of cash.30 There was also testimony from other inmates who heard Wilson

admit he hired Dimes and Ray to kill Cannon.31 Finally, Tate testified that she sent

Pratt to North Carolina out of fear for Pratt’s life.32 Because this evidence was more

than sufficient to sustain Wilson’s conviction, the court’s admission of the text

messages was harmless error.

C.

Finally, we address Wilson’s argument that the State improperly suppressed

material impeachment evidence in violation of Brady v. Maryland.33 He claims the

Superior Court erred because the State was aware of the offer to Keyes by the federal

government weeks before Wilson’s trial and failed to disclose it. He also argues that

the impeachment evidence would impact the credibility of Keyes’ prior recorded

statement, which was offered by the State as affirmative evidence that Wilson

committed the alleged crimes. Wilson contends his inability to attack the credibility

of part of the State’s evidence undermines confidence in Wilson’s conviction and

makes the non-disclosure material to the defense.

29 Id. at B30; App. to Opening Br. at A34. 30 Id. at B107. 31 Id. at B47–48; B62–70; B83. 32 Id. at B26–27. 33 373 U.S. 83 (1963).

11 The State responds that the record supports the Superior Court’s finding that

the State disclosed the impeachment evidence to the defense immediately after the

State became aware of it. The State also argues that Wilson’s testimony on direct

already discredited Keyes’ prior recorded statement, and further impeachment would

have been cumulative. And even if the State suppressed the impeachment evidence,

it was not material and does not undermine confidence in the trial record full of other

evidence supporting Wilson’s conviction.

As we said recently in Risper v. State, under the United States Supreme

Court’s decision in Brady, “the prosecution has a constitutional obligation to

disclose exculpatory and impeachment evidence within its possession to the defense

when that evidence might be material to the outcome of the case.”34 There are three

elements of a Brady violation: “(1) evidence exists that is favorable to the accused,

because it is either exculpatory or impeaching; (2) that evidence is suppressed by the

state; and (3) its suppression prejudices the defendant.”35

The Delaware United States Attorney’s Office offer to Keyes was potentially

impeaching. An offer of possible sentencing leniency in exchange for testifying

during Wilson’s trial could have undermined Keyes’ trial testimony if he had

testified that Wilson was implicated in the killing. It is also unclear when

34 250 A.3d 76, 90 (Del. 2021). 35 Risper, 250 A.3d at 90 (quoting Starling v. State, 882 A.2d 747, 756 (Del. 2003)).

12 representatives of the State had knowledge of the offer. 36 But even if the State

should have disclosed the offer earlier, it was immaterial to the trial and Wilson’s

convictions.

Impeachment evidence is material if the failure to disclose the evidence

“undermines confidence in the outcome of the trial.”37 “The question is not whether

the defendant would more likely than not have received a different verdict with the

evidence, but whether in its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.”38 In Kyles v. Whitley, the U.S. Supreme

Court held this is not a “sufficiency of the evidence test[;]” rather, a Brady violation

is shown when “the favorable evidence could reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict.”39

Here, the possible impeachment evidence was not material to a fair trial.

During his trial testimony Keyes “retracted his prior statements made to [Sergeant]

Fox” and “unequivocally stated, in response to a question from [Wilson’s counsel],

36 After Wilson’s trial, the United States Attorney’s Office sent a letter to the State to inform it of the potential impeachment evidence for Keyes. App. to Opening Br. at A90–92. The letter said that Keyes and his lawyer met with Sergeant Fox, an Assistant United States Attorney, and two other federal agents on December 6, 2019. Id. at A91–93. Keyes discussed Wilson at this meeting, and “[p]ortions of Keyes’ statement were recorded by [Sergeant Fox] . . . .” Id. at A91. The letter also said that “[p]rior to that recording, [the Assistant United States Attorney] told Keyes that if he testified in Wilson’s state trial, his cooperation would factor into the government’s ultimate sentencing recommendation in Keyes’ federal case.” Id. at A91–92. The letter does not clarify whether Sergeant Fox was present when this statement was made or aware of the offer presented to Keyes. Id. at A92. 37 U.S. v. Bagley, 473 U.S. 667, 678 (1985). 38 Kyles v. Whitley, 514 U.S. 419, 434 (1995). See also Risper, 250 A.3d at 92–93. 39 Id. at 434–35.

13 that [Wilson] never admitted to hiring anyone to kill the victim in this case.”40 It

would have been counterproductive to impeach Keyes’ out of court statement when

the defense wanted to rely on Keyes’ credibility and his in-court testimony. As

explained by the Superior Court:

During cross examination, Defense Counsel did inquire into Keyes’ motivation for testifying, but he quickly realized that Keyes testimony was helpful to Defendant’s case and pivoted from that line of questioning. At that point, it would have been unfruitful to impeach Keyes since his testimony served to benefit Defendant. Instead, Defendant argued to the jury that Keyes’ in-court testimony was to be believed, thereby thwarting the benefit to be derived by the State from its cooperating witness.41

Finally, as discussed earlier, we agree with the Superior Court that the

evidence of Wilson’s guilt in the trial record supports his convictions beyond a

reasonable doubt. But more important to our Brady analysis is our conclusion that

the prosecution’s disclosure to the defense of the offer to Keyes in the federal case

would not have put Wilson’s case in such a different light as to undermine

confidence in the jury’s verdict. As the Superior Court held:

the jury had available to it overwhelming, well corroborated, credible evidence in the forms of text messages, police testimony, and a 9-1-1 call that established that an attempted robbery of [sic] high-stakes dice game occurred on the East Side of Wilmington, just days before the murder at issue. Multiple sources and witnesses were presented against Defendant for the purpose of demonstrating his involvement in the alleged crimes.42

40 Wilson, 2021 WL 1056769, at *4. 41 Id. at *5. 42 Id. at *6.

14 III.

We affirm the Superior Court’s judgment.