Brokenbrough v. State

• Decision Date: 20 January 1987
• Citation: 522 A.2d 851
• Parties: John BROKENBROUGH, Appellant, Defendant Below, v. STATE of Delaware, Appellee, Plaintiff Below . Submitted:
• Court: Supreme Court of Delaware

Page 851

522 A.2d 851

John BROKENBROUGH, Appellant, Defendant Below, v. STATE of Delaware, Appellee, Plaintiff Below

Supreme Court of Delaware.

Submitted: Jan. 20, 1987.

Decided: March 18, 1987.

Upon appeal from the Superior Court. Affirmed.

Lawrence A. Ramunno, Wilmington, for appellant-defendant below.

M. Jane Brady (argued), Deputy Atty. Gen., Dover, for appellee, plaintiff-below, Eugene M. Hall, State Prosecutor, Wilmington.

Before MOORE, WALSH and HOLLAND, JJ.

PER CURIAM:

John Brokenbrough was tried before a jury and convicted for Delivery of Cocaine, in the Superior Court, in and for Kent County. A co-defendant, George Atkins, was tried and convicted at the same trial for Delivery of Cocaine and Second Degree Conspiracy. John Brokenbrough was sentenced to be imprisoned for eight years. In this appeal, Brokenbrough sets forth two grounds which he contends require reversal of his conviction. First, he asserts that there was insufficient evidence to support the jury's verdict. Second, he alleges that improper and prejudicial closing argument to the jury by the prosecutor denied him a fair and impartial trial. An understanding of the factual circumstances is important for an analysis of both of the issues that Brokenbrough raises in this appeal.

On March 5, 1986, Detective Bullen, an undercover Delaware State Police officer, met with the co-defendant, Atkins, for the purpose of purchasing a quantity of cocaine. Bullen and Atkins drove to an apartment complex in Dover, Delaware. They both entered the apartment of Mary Scott, who resided in the complex. Inside the Scott apartment, Detective Bullen asked Mary Scott about the possibility of purchasing drugs. At the time, Detective Bullen was wearing a "body microphone" which taped the conversation. Following a brief discussion, Mary Scott left her apartment to procure some drugs. During Scott's absence, the co-defendant, George Atkins, told Detective Bullen that Scott was "only going three doors down." Scott returned to the apartment shortly after leaving and told Bullen that she could not obtain any cocaine at that time but that she could obtain some at about 3:30 p.m. later that day.

Detective Bullen and Atkins left the Scott residence. Atkins stated that he had to go to work but he assured both Scott and Bullen that they could trust each other. Detective Bullen returned to the Scott residence alone at approximately 3:30 p.m. where he met with Scott. Once again, Scott left her apartment after telling Detective Bullen to wait there. She returned promptly with a substance that was subsequently tested and proved to be cocaine. Detective Bullen paid Scott $1,040.00 for the drug and left the Scott apartment.

Scott was arrested later that same evening. Following her arrest, Scott gave a statement to the police indicating that she had obtained the cocaine which she had sold to Detective Bullen from Brokenbrough, the defendant. Prior to receiving the cocaine from Scott, Detective Bullen did not see, hear, or talk to Brokenbrough. Bullen did testify, however, that on his second visit to the Scott residence, he observed a green van which he believed was the same type of van that Brokenbrough drove and which was registered to Brokenbrough. Detective Bullen further testified that he did not believe that the van was present during his first visit to the Scott apartment.

Scott testified that she lived in the apartment complex where she had met with Detective Bullen. Scott further testified that although Brokenbrough lived three doors from her apartment, she knew very little about him. Scott testified that when she left her apartment after the first meeting with Bullen, she went to see Brokenbrough and asked him if she could obtain one ounce of cocaine. According to Scott, Brokenbrough told her that she could only purchase one-half ounce of cocaine and that the cost would be $1,050.00. During the initial conversation with Brokenbrough, Scott and Brokenbrough agreed that the cocaine would be available for her to purchase later in the day at approximately 3:30 p.m. Scott testified that she ultimately obtained the cocaine from Brokenbrough in the parking lot of the apartment complex. She stated that the purchase was completed next to Brokenbrough's green vehicle.

The record reflects that Scott was originally charged with the offenses of Delivery of Cocaine, Second Degree Conspiracy, and Maintaining a Dwelling. Pursuant to a plea agreement, the original charges against Scott were modified and she agreed to testify against Brokenbrough. During the trial, Scott admitted that she had a prior drug record which would have resulted in mandatory incarceration, if she had been convicted of the original charges.

Brokenbrough testified on his own behalf at trial and presented two alibi witnesses, Ernest Sutler and Jackie Tilgman. Tilgman testified that Brokenbrough was working at several jobs at or about the time of the alleged offense. Tilgman further testified that Brokenbrough played cards "just about every Monday night" including the evening prior to the offense. Tilgman testified that it was not unusual for Brokenbrough to come home at 3:00 or 4:00 a.m. as he did on March 5, 1985. Tilgman stated that she could remember nothing unusual or out of the ordinary that occurred on March 5, 1985.

Mr. Sutler testified that he and Brokenbrough both worked for the same employer. Sutler stated that on March 5, 1985, he and Brokenbrough, in the course of their employment, left Dover between 8:30 and 9:30 a.m. to pick up a vacuum cleaner at the home of a Mrs. Nora Sabbagh, who lived in Wilmington near Route 202. Sutler testified that he and Brokenbrough picked up the vacuum cleaner from Mrs. Sabbagh on March 5, 1985, made several other stops, had lunch and returned to Dover at approximately 4:30 p.m. Sutler testified that he had made out a receipt for Mrs. Sabbagh. The original receipt was not available at trial but a copy of the Sabbagh receipt was admitted into evidence.

Brokenbrough testified that he was working in Wilmington on March 5, 1985, with Ernest Sutler. He also testified that he and Sutler went to a residence in North Wilmington, near 202. However, contrary to Sutler's testimony that they went to pick up a vacuum cleaner, Brokenbrough testified that he and Sutler delivered a vacuum cleaner to the Sabbagh residence. Brokenbrough stated that he and Sutler returned to Dover at approximately 4:30 p.m. or 5:00 p.m. on March 5, 1985. During the course of Brokenbrough's testimony, he originally denied owning the green van that had been identified by Detective Bullen. However, during cross-examination, after being shown a Division of Motor Vehicle document evidencing his ownership of the van, Brokenbrough testified that "the vehicle was owned in 1982 when I was busted in Middletown for drugs. I had the vehicle all along." Brokenbrough also admitted during cross-examination that he had been convicted of a felony on two prior occasions.

Sabbagh was called by the State as a rebuttal witness. She testified that she did own a vacuum cleaner that had been serviced by a Dover company. However, she testified that the vacuum cleaner had been serviced some time in December, 1984 or January 1985, although she was inclined to believe that it had been serviced before Christmas. She further testified that she had left her residence near Wilmington on January 22, 1985 for Bangladesh, Pakistan. Sabbagh testified that she returned to her residence from Pakistan on approximately March 19, 1985. Sabbagh testified that when the vacuum cleaner was returned to her, it was returned by one man, not two. She also stated that the man who returned the vacuum cleaner was aware of the fact that she lived overseas. Finally, she testified that the March 5, 1985, date on the copy of the receipt that was introduced into evidence, could not be the date that the vacuum cleaner had been picked up or dropped off at her home.

I

Brokenbrough's first argument is that there was insufficient evidence to support the jury's verdict. In particular, Brokenbrough states that his conviction was based solely upon the uncorroborated testimony of the co-defendant, Scott. At common law, the uncorroborated testimony of an accomplice was sufficient to warrant a conviction, if it satisfied the trier of fact beyond a reasonable doubt. Brokenbrough admits that this common law rule is still the majority rule and is the rule of law in Delaware. However, Brokenbrough urges this Court to reject our present rule and require corroboration of accomplice testimony.

This Court has consistently held that corroboration of accomplice testimony is not required or necessary. Some time ago, we held that "this rule has been followed repeatedly for many years and we consider it too deeply embedded in the law of the State to permit our changing it by judicial action. We accordingly decline to reverse the holding in O'Neal v. State [Del., 247 A.2d 207]." Bland v. State, Del.Supr., 263 A.2d 286, 288 (1970). We reaffirmed that position in Wintjen v. State, Del.Supr., 398 A.2d 780 at 781 (1979). In Wintjen, we stated:

"The law in Delaware is settled on this point and it is contrary to what Wintjen argues. Briefly stated, corroboration of accomplice testimony is not required, absent extraordinary circumstances. Bland v. State, Del.Supr., 263 A.2d 286 (1970); Jacobs v. State, Del.Supr., 358 A.2d 725 (1976). In this case there is no 'irreconcilable conflict' in the testimony of defendant's alleged accomplices which might otherwise warrant removal of the case from consideration by the jury. Bland, supra., 263 A.2d at 288. Rather the testimony of the accomplices is substantially consistent. Its credibility was a matter for the jury to weigh. Wintjen's first argument is without merit." Id. at 781 (Footnote omitted).

Brokenbrough correctly points out that although accomplice testimony need not be corroborated, it does not preclude a court from...