Buckham v. State
| Decision Date | 17 April 2018 |
| Docket Number | No. 538, 2016,538, 2016 |
| Citation | 185 A.3d 1 |
| Parties | David BUCKHAM, Appellant, v. STATE of Delaware, Appellee. |
| Court | Supreme Court of Delaware |
Christina L. Ruggiero, Esquire (argued), Eugene J. Maurer, Jr., Esquire, Eugene J. Maurer, Jr., P.A., Wilmington, Delaware, Counsel for Appellant.
Abby Adams, Esquire (argued), Department of Justice, Georgetown, Delaware, Counsel for Appellee.
Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices.
David Buckham was convicted at trial of assault in the first degree and related charges in connection with a shooting. His appeal presents two questions of criminal procedure. First, we consider the propriety of the trial court's decision to call a recess at the State's request so that one of the State's witnesses, who was in the middle of testifying—and in the middle of recanting a statement he had given to investigators before trial—could consult with his lawyer. Buckham—who was forbidden by the trial court from cross-examining the witness about what transpired during the consultation—contends it was reversible error to allow it and a violation of his confrontation rights to bar him from cross-examining the witness about it.
Second, we consider whether it was plain error for the trial court to uphold a warrant that authorized a search of "[a]ny and all store[d] data" on Buckham's cell phone for any evidence of any kind that might link him to the shooting. The trial court sustained the warrant despite recognizing that the only nexus the warrant application established between his phone and the shooting was that the phone might have contained GPS data that might have been useful to investigators. The search instead turned up some arguably incriminating Facebook messages, and Buckham contends that they should have been suppressed. He did not raise this precise contention below, but he contends that the mismatch between the scope of the warrant and the probable cause the trial court found to support it was so apparent, and that the warrant was so lacking in particularity, that upholding the warrant was plain error.
We agree that the trial court's decision to allow the State's witness a mid-testimony consultation with counsel was reversible error and that the decision to uphold the warrant—and admit the Facebook messages—was plain error. We therefore reverse Buckham's convictions and remand for a new trial.
During the early morning hours of August 3, 2015, two Wilmington police officers responded to a shooting. They found Gerald Walker—apparently shot in his upper abdomen—lying in a fetal position in the entranceway of a residence. Walker was in pain, but lucid, and he told the officers that he had been shot by the occupants of a dark-colored SUV. He said that three or four shots had come from the front passenger side of the vehicle, but he was unable to see the occupants because the vehicle's windows were heavily tinted. The police did not locate any witnesses or recover any shell casings or other physical evidence from the scene.
With no identification of the perpetrators and no physical evidence, the investigation languished into September. Then, halfway through the month, a 911 caller reported that a person who had previously shot him had just driven past his house. One of the officers who responded was one of the two who had responded to the August 3 shooting, and when he arrived on the scene, he discovered that the 911 caller was none other than Gerald Walker. Walker reported that he and his fiancé were sitting on the steps of her home when the same vehicle from the August 3 shooting drove by. He identified the driver as David Buckham and the passenger as Imean Waters and said that as the two drove by, one or both of the them said, "We're on your top"—meaning that they were still after him.1 Walker also claimed that Waters waved a gun at him to drive the point home.
The officer also had a brief conversation with Walker about the August 3 shooting. Despite telling the officers on the night of the shooting that he had not been able to get a look at the occupants of the vehicle, Walker now told the officer definitively that Buckham was the assailant. According to the officer's recollection of the conversation, Walker also told him that Buckham had exited the vehicle and fired the shots from there, not while concealed behind the vehicle's tinted windows.
Later that day, a detective interviewed Walker, and Walker again blamed the shooting on Buckham. He told the detective that Waters was driving and that when Waters said "hit him," Buckham started shooting.2 But while he was steadfast that Buckham was the shooter, he admitted that he did not see the shots being fired or "even see the gun"—he "just heard the shot."3
Based on what Walker had told them, law enforcement secured arrest warrants for Waters and Buckham. Waters was arrested that same day, and he too was interviewed by the police. When asked about the shooting on August 3, he admitted that he and Buckham had driven past the site of the shooting, but he initially claimed that he had dropped Buckham off on the side of the road and heard gunshots only after driving away. But after being pressed on his story, Waters told the police that Buckham shot Walker from the passenger seat of his vehicle.
Based on the information provided by Walker and Waters, police secured a warrant for Buckham's arrest. They were unable to locate him, and it was not until approximately six weeks later that he was arrested in a library in New Jersey by federal law enforcement officers. His cell phone was seized incident to his arrest, and it was turned over to the Wilmington police.
The gun used in the shooting has never been recovered. The inability of the police to find the gun or to ascertain where Buckham had been residing during the six weeks they had been searching for him prompted them to seek a search warrant for his cell phone. They apparently thought that they may be able to find GPS location data on the phone, which could reveal where Buckham had been residing and, in turn, might lead to the discovery of the gun.
The warrant they obtained for Buckham's phone authorized them to search not just for GPS location data, but for "[a]ny and all store[d] data contained within the internal memory of the cellular phones [sic]." It is unclear from the record whether the police found any GPS data and, if they did, whether they actually used it to search for the gun. What is clear is that they found and read private messages Buckham had exchanged with various people through the Facebook application on his phone, some of which were later introduced at trial.
Buckham was charged with a host of offenses, the most serious of which was attempted murder in the first degree. Not surprisingly, at center stage at his trial were Walker and Waters, the only percipient witnesses (other than, allegedly, Buckham) to the shooting. Neither wished to be there.
Walker appeared at trial only after being arrested and held on a material-witness warrant. When he was called to the stand, his testimony diverged yet again from the previous accounts he had given to the police. Contrary to his claim that Buckham had shot at him from outside the vehicle, Walker testified that Buckham "started shooting out of the window."4 The prosecutor sought clarification—asking him, "what window?"—but Walkers reiterated that Buckham shot from through the "passenger side window."5 And despite telling the detective that he had not seen the weapon that had been used to shoot him or who fired it, Walker testified that he had seen "a little black gun" in Buckham's hand just before the shooting started, and he testified, unequivocally, that Buckham was the shooter.6 He also disclosed, for the first time, that a "senior citizen" named "Mr. Mel" was sitting outside with him when Waters and Buckham pulled up in the SUV and presumably witnessed the entire encounter. As if these inconsistencies did not provide sufficient fodder to question Walker's credibility, he announced—in open court—that defense counsel's questions were "aggravating" him, that he was "just going to keep answering questions with, ‘I don't know’ " because he was tired of answering them, and, at one point, that he intended to "plead the Fifth to every question from now on" (which, after the jury was excused, prompted a warning of contempt from the trial judge).7
The prosecution then called Waters, whose testimony was more problematic. Before Buckham's trial, Waters had agreed to plead guilty to conspiracy in the second degree (in connection with the allegedly menacing drive-by that occurred in mid-September) in exchange for testifying at Buckham's trial. But despite having admitted on the day of his arrest that Buckham shot Walker from the passenger seat of his vehicle, Waters disavowed even having seen Walker that day:
After a brief sidebar conference, the prosecutor attempted to clarify Waters' testimony:
That prompted the prosecutor to request another sidebar conference at which she told the court, "Mr. Waters is facing significant issues, not only by violating the cooperation agreement, but also by potentially perjuring himself ... [and] he may want to speak to his counsel at this point."10 Over Buckham's counsel's objection, the trial judge agreed. Buckham's counsel asked whether he...
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