Boyer v. State

• Decision Date: 01 October 1981
• Citation: 436 A.2d 1118
• Parties: Donald J. BOYER and William T. Harley, Defendants Below, Appellants, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 1118

436 A.2d 1118

Donald J. BOYER and William T. Harley, Defendants Below, Appellants, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted June 16, 1981.

Decided Oct. 1, 1981.

Upon appeal from Superior Court. Affirmed.

A. Gary Wilson (argued), Wilmington, for Boyer, defendant below, appellant.

David M. Lukoff (argued), Asst. Public Defender, Wilmington, for Harley, defendant below, appellant.

John A. Parkins, Jr. (argued), Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.

Before HERRMANN, C. J., McNEILLY and HORSEY, JJ.

McNEILLY, Justice:

Defendants, Donald J. Boyer and William T. Harley, appeal their Superior Court jury convictions and sentences. Defendant Boyer was convicted of Attempted First Degree Murder, First Degree Robbery, First Degree Burglary, Second Degree Conspiracy, First Degree Reckless Endangering, Possession of a Deadly Weapon during the Commission of a Felony, and Possession of a Deadly Weapon by a Person Prohibited. Defendant Harley was convicted of First Degree Robbery, First Degree Burglary, and Second Degree Conspiracy.

The defendants raise several claims of error, some of which overlap. Specifically, defendant Harley contends that the evidence was insufficient to support the Trial Court's decision. Defendant Boyer claims that certain of his oral statements made during custodial interrogation were improperly admitted at trial, that the Trial Court improperly refused to give a missing witness instruction, and that the indictment against him was deficient because it failed to support the charge of reckless endangering. In addition, defendant Boyer contends that hearsay evidence was improperly admitted against him at trial and that his right to be free of double jeopardy was violated when the Trial Court refused to merge his convictions of Attempted Murder in the First Degree and Possession of a Deadly Weapon during the Commission of a Felony and his convictions of Robbery in the First Degree and Burglary in the First Degree. Both defendants argue that the Trial Court failed to give the correct instruction on the burden of proof, that the prosecutors' rebuttal contained prejudicial comments upon the defendants' failure to testify and effectively shifted the burden of proof onto defendants, and that the Trial Court erred in refusing to compel the State to disclose to defendants the criminal record of the State's chief witness. We affirm.

I

The basic facts of this case are not complex. On the evening of October 19, 1979 Ricardo Scott, the victim, and an adult companion, Sherri Pruden, were baby sitting at 2900 Rosemont Avenue, the home of Theresa McDaniel. Sometime close to midnight, as Scott answered a knock at the front door, two men pushed their way into the house. One of the intruders, later identified as defendant Boyer, began pistol whipping Scott. At that point, Sherri Pruden ran from the house pursued by the second intruder, defendant Harley. As the struggle continued, Scott was shot in the head by Boyer who then took one hundred seventy dollars from Scott and fled.

During questioning by the police, Scott and Pruden were uncooperative. However, Scott did describe the getaway car. He also described Boyer as being a black male, six feet tall, light-skinned, and wearing a "Fu-Manchu" mustache. He stated that he had gambled in the area of Taylor and Bennett Streets with Boyer three years before. It was not until January, 1980 that the police learned that Scott and Pruden had recognized both defendants on the night of the intrusion. Pruden knew Boyer by nickname only, but Harley she knew and, in fact, had been with him on the day of the incident in question. Scott, on the other hand, knew neither Boyer nor Harley by name, but he had sold Harley drugs on the day of the shooting at the McDaniel home, a well known drug outlet. Scott also knew approximately where Harley's family lived and associated Harley with the car he drove and by his general appearance. Scott withheld this information from the police because he thought he could find Boyer if he located Harley, and he wanted to retaliate in his own way. Scott's mother, however, convinced him that he should cooperate with the police rather than retaliate on his own.

For more than two months the police investigation stagnated. On January 5, 1980, however, Scott ran into Harley at the home of mutual friends. Apparently a scuffle ensued and Harley jumped out of a window. Harley later returned and was restrained by Scott while the police were called.

After arresting Harley, the police took him to the police station. There he was advised of his rights. Harley stated that he had been at the McDaniel home at 2900 Rosemont Avenue early in the day on October 19; that he had taken Sherri Pruden to the grocery store; and that he and Sherri had gone to New Jersey and gotten a room at the Dutch Inn on Route 295. Harley further stated that he returned to Delaware after Sherri Pruden left the Dutch Inn because he discovered that she had stolen some money from him. After his return to Delaware, defendant Harley proceeded to a bar in Chester and, later that evening, returned to the motel in New Jersey where he remained until the following day. ^*

On the evening of January 5, 1980, Scott was taken to the police station to sign warrants. While at the station, Scott was given several books and stacks of pictures. In one of the stacks of pictures, Scott found the picture of the man who shot him. The picture was of Donald Boyer.

Sherri Pruden was taken to the police station on March 19. At that time, she looked at photographs and was able to identify Donald Boyer as the man who hit Scott. It was then that Sherri Pruden, for the first time, told police that she had recognized the man with the gun who assailed Scott as a man known to her as "Jake." This man was Donald Boyer.

At trial, certain facts were revealed which apparently had not been known previously. Scott repeatedly stated to the police that he did not know his assailants and that he himself does not sell drugs though occasionally he smokes marijuana. Theresa McDaniel testified that Scott had, on October 19, sold drugs, probably methamphetamines, to Anthony Borsello and William Harley. She stated that both Borsello and Harley had been in her house on that day. She further testified that her home is a well-known area for purchasing drugs.

Upon being recalled, Scott testified that he had sold drugs to Harley on October 19 but only as a favor for Ms. McDaniel who was away from the residence. Further, he stated he had recognized Boyer as the man who shot him and Harley as the man who drove Boyer away.

II

Defendant Harley contends that the evidence presented at trial did not support the verdict beyond a reasonable doubt. Specifically, Harley argues that the State failed to introduce any credible evidence connecting him with the crime except for Scott's testimony alone. Defendant Harley claims that Scott's testimony was incredible because Scott gave inconsistent testimony on drug usage, did not tell the police about Harley until January 5, 1980, and did not mention the presence of a getaway car until January 5. Further, defendant argues that because Scott was severely beaten and later shot in the head, a real question existed as to Scott's ability to observe the events in question.

The State argues that, applying the test for sufficiency of the evidence announced in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and adopted in Young v. State, Del.Supr., 407 A.2d 517 (1979), this Court can only conclude that the evidence was sufficient to support the verdict.

The United States Supreme Court stated the test in Jackson:

(T)he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to 'ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt.' Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. 443 U.S. at 319, 99 S.Ct. at 2789.

Here, Scott identified defendant Harley as one of the men involved in the incident of October 19, 1979. Though Scott's credibility and ability to perceive may be subject to attack, we think that a rational trier of fact could believe that testimony, find Harley to be involved, and find guilt beyond a reasonable doubt.

III

At two times in rebuttal summation, the prosecutor attempted to attack defendants' alibi by stating that they had failed to rebut the fact that they did not know each other.

"... there's absolutely no rebuttal on the part of the defense that he does not know defendant Boyer."

"There's no rebuttal on the part of the defense, Harley's defense, that he doesn't know McDaniel, that he doesn't know the house...."

The defendants contend that these remarks by the prosecutor constituted impermissible direct comments on the defendants' failure to testify.

The State argues that the error, if any, must amount to plain error because the defendants neither objected to the summation at trial nor requested a cautionary instruction. The State argues that the prosecutor, in summation, never made a direct reference to defendants' failure to testify. Thus, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the only authority cited by defendant, has no application to...