Coles v. State

• Decision Date: 15 September 2008
• Docket Number: No. 310, 2007.,310, 2007.
• Citation: Coles v. State, 959 A.2d 18 (Del. 2008)
• Parties: David COLES, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

959 A.2d 18

David COLES, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 310, 2007.

Supreme Court of Delaware.

Submitted: August 27, 2008.

Decided: September 15, 2008.

Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr. I.D. No. 0301011099.

Upon Appeal from the Superior Court.

AFFIRMED.

James J. Haley, Jr., Esquire, of Ferrara, Haley & Collins, Wilmington, DE, for Appellant.

James T. Wakley, Esquire, Department of Justice, Wilmington, DE for Appellee.

Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices.

JACOBS, Justice.

David Coles ("Coles"), the defendant below, appeals from a Superior Court final judgment of conviction. Coles was charged with Murder in the First Degree and two weapons offenses. A jury found Coles guilty of the lesser-included offense of Murder in the Second Degree, and also of the two weapons offenses. On appeal, Coles claims that the Superior Court abused its discretion by: (1) refusing to issue a bench warrant to compel the appearance of a "material" witness; (2) excluding from evidence that witness' videotaped statement to the police; and (3) instructing the jury on the lesser-included offenses of Murder in the Second Degree and Manslaughter. We find no merit to Coles' claims and affirm.

FACTS

On the morning of January 10, 2003, Coles noticed a package in the alley adjoining the house where he lived, in Wilmington, Delaware. Coles retrieved the package (which contained marijuana and cocaine), and brought it inside his home. Sometime later, Aaron Fairley ("Fairley") knocked on Coles' door, and accused Coles of stealing his drugs. Coles handed the drugs to Fairley, who then walked away from Coles' residence.

Moments later, Coles also walked out of his residence and heard Fairley yelling to others on the street that Coles had "stolen [his] package [and that] [Fairley] should bust [Coles] in the face." An argument between Fairley and Coles then ensued. According to Coles, Fairley "never took his hand out of his pocket [which] in the streets . . . is a non-verbal [cue] for I have a weapon." At some point, Coles flinched, as if Fairley was about to hit him.¹ Coles then backed away and flashed a semiautomatic gun he had under his waistband.² Fairley saw the gun and started walking away while threatening Coles that he would return to "get [him] when the sun go[es] down." Coles testified that he then turned and began walking towards the car that was waiting for him. As he was proceeding towards the car, Coles heard a shot, to which he responded by firing his gun four times (presumably in the direction of the shot), while retreating to his home. Two of the four bullets hit Fairley, who died shortly afterwards.³

On January 15, 2003, five days after the shooting, the police interviewed Kimberly Brown Sudler ("Sudler"), who lived across the street from Coles' home. Sudler had called the police because "[e]very day gunshots [had] been going off" on the block where she lived. Sudler was interviewed generally about incidents occurring on that block, but the subject of Fairley's homicide was also specifically discussed. Sudler stated:

I seen them going in and out of that house, take off [. . .]. I didn't actually see them with the guns. I seen them out there. I seen Keith [Evans] throw something behind the wall, and he said something to the boys that's on the porch next door to the house that's for rent.

* * *

The day of the homicide I heard the shots go off . . . I seen the boys run off the second porch. I seen them pass something to somebody else . . . I seen Keith [Evans] standing here. . . . I heard them say, "Get him out of here, get him out of here, get him out of here." And these boys [are] always on this porch . . . [A]nd the light-skinned boy . . . with a beard and grays going straight back, stocky, he was the one that passed something to Keith [Evans].⁴

On May 31, 2005, Coles was indicted on charges of Murder in the First Degree, Possession of a Firearm During the Commission of a Felony, and Possession of a Deadly Weapon by a Person Prohibited. In October and November 2006, Coles' case was tried before a Superior Court jury. On October 17, 2006, a subpoena that had been issued to compel the appearance of Sudler (as a witness for the State) could not be served, because the address indicated on the subpoena was a vacant house.

On the first day of the trial (October 31, 2006), the prosecutor indicated that the State did not intend to call Sudler as a witness because they were unable to find her. On the second day of the trial (November 1, 2006), defense counsel indicated that he had prepared a subpoena for Sudler (as a defense witness) and that an investigator would to attempt to find Sudler and serve her with the subpoena. On the third day of the trial, November 6, 2006, defense counsel informed the trial judge that the subpoena had been handed to Sudler's mother by the investigator, on November 3, 2006. The investigator believed that Sudler was residing at her mother's house, because from outside the house the investigator saw someone in the living room who matched the (oral) description of Sudler that defense counsel had provided to him—based on counsel's review of Sudler's videotaped statement to the police.

Because Sudler did not appear at the courthouse at the time and date indicated on the subpoena (November 6, 2006, at 9:00 a.m.), defense counsel asked the court to issue a bench warrant for Sudler's apprehension as a material witness for the defense.⁵ Alternatively, defense counsel requested that Sudler's videotaped out-of-court statement to the police be admitted into evidence under D.R.E. 807. The trial court summarily denied the request for a bench warrant, stating:

[I]t appears that there was an attempt to serve a subpoena which was apparently unsuccessful. I'm not persuaded on the existing record that a basis exists for issuing an arrest warrant or capias to this witness at this time.⁶ If the defense is unable to serve a subpoena in a time which avoids unreasonable disruption of the trial, admissibility of her statement based on her alleged unavailability will be considered. If the defendant desires, I can address the issue on this basis [on November 8, 2006, the next trial day] or if efforts to subpoena her are still ongoing, later. And if . . . I proceed with that analysis, I may just listen to this tape or watch this tape to . . . [determine whether] there are two separate incidents mixed up.

On the fourth day of trial, November 8, 2006, the investigator testified about his efforts to locate Sudler. The investigator stated that based on his review of the videotape from the police station, the person he saw in the living room at Sudler's mother's house was Sudler. In light of the investigator's testimony, the Superior Court declared Sudler an "unavailable" witness under D.R.E. 804(a)(5). Later that same day, after reviewing the videotape, the trial court denied the application to have the videotape admitted into the evidence, holding that:

I see that [Sudler] begins by describing an incident in which two men are shooting and four or five men are running. It becomes clear that this incident is different from the one which is later described as the homicide, which is the incident in this case. [. . .] Therefore, the first incident involving two men shooting would have to be redacted out anyway as irrelevant, intending to mislead the jury.

As to the remainder, [Sudler]'s statement is no more probative on what occurred than the testimony of the witnesses who have already testified here in Court and doesn't tend to establish any new material fact. In addition, I am not persuaded that the statement is particularly reliable in the absence of an opportunity to have the witness cross-examined in Court to clarify what she says and I am not persuaded that admission of the videotape serves the purposes of the rules of evidence or the interest of justice. Therefore, the State's objection to the admission of the videotape is sustained.

At the prayer conference which took place on November 9, 2006, defense counsel proposed a self-defense instruction that included a theory of "imperfect self-defense." The Superior Court agreed to give a self-defense instruction but refused to incorporate the language suggested by the defense counsel. The trial court did, however, entertain defense counsel's suggestion that the word "subjectively" be inserted in the instruction, as follows:

A defense raised by the defendant in this case . . . is justification. The Delaware Code defines the defense as follows: The use of force upon or toward another person is justifiable when the defendant believes that such force is immediately necessary for the purpose of protecting the defendant against the use of unlawful force by the other person on the present occasion.⁷ [. . .] Justification, or as it is sometimes called, self-defense, is a defense that the defendant subjectively believed that the force used was immediately necessary to protect himself against the use of unlawful force by the other person . . .

The trial court then granted, over defense counsel's objection, the State's request that the jury be instructed on Murder in the Second Degree and Manslaughter, as lesser-included offenses to the lead charge of Murder in the First Degree.

On November 13, 2006, the jury returned a verdict finding Coles guilty of Murder in the Second Degree and of the two weapons offenses. On November 22, 2006, Coles moved for new trial. The Superior Court denied that motion on March 30, 2007. Coles was sentenced in on June 20, 2007. This appeal followed.

ANALYSIS

Coles first claims that the Superior Court erred in denying his request to issue a warrant to compel the appearance of Sudler to testify as a defense witness. The decision to issue a material witness warrant lies within the Superior Court's discretion,⁸ but that discretion...