Goode v. State

• Decision Date: 04 April 2016
• Docket Number: No. 276, 2015,276, 2015
• Citation: 136 A.3d 303
• Parties: Jhavon Goode, Defendant Below, Appellant, v. State of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

136 A.3d 303

Jhavon Goode, Defendant Below, Appellant
v.
State of Delaware, Plaintiff Below, Appellee.

No. 276, 2015

Supreme Court of Delaware.

Submitted: February 17, 2016
Decided: April 4, 2016

André M. Beauregard, Esquire, Brown, Shiels & Beauregard, LLC, Dover, Delaware, for Defendant Below, Appellant, Jhavon Goode.

Kathryn J. Garrison, Esquire, Department of Justice, Georgetown, Delaware, for Plaintiff Below, Appellee, State of Delaware.

Before STRINE, Chief Justice; HOLLAND, and SEITZ, Justices.

SEITZ, Justice:

I. INTRODUCTION

A Superior Court jury convicted Jhavon Goode of first degree assault, possession of a firearm during the commission of a felony, and carrying a concealed deadly weapon. The jury determined that Goode shot Jason Terry in the course of a drug sale in Milford, Delaware. The court sentenced Goode to a total of eighteen years at Level V incarceration with credit for time previously served.

Goode appeals his convictions and raises a number of arguments. For the reasons set forth below, we conclude that each of his arguments is without merit. With respect to Goode's primary argument—that Terry's identification of Goode should have been suppressed as unduly suggestive because Terry identified Goode only after Terry's cousin, Raye Boone, showed him a photograph of Goode—we hold that a state actor must play a role in an identification before due process concerns arise. If no state actor is involved in the identification, as was the case here, then the normal rules of evidence and procedure provide sufficient protection to the rights of the accused to challenge the identification. Accordingly, we affirm the Superior Court's judgment.

II. FACTS AND PROCEDURAL HISTORY

On April 9, 2014, Jason Terry was walking home after playing basketball at a park in Milford, Delaware. Terry passed by 105 Montgomery Street, a house frequented by people who were known for drinking and generally carrying on. While walking by the house he ran into an acquaintance, Tiger Reynolds. Reynolds told Terry that a person behind the house wanted to buy marijuana. Evidently, Terry was someone known to have marijuana on hand to sell.

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Intending to make a sale, Terry walked down the alley to the area behind 105 Montgomery Street to meet the prospective buyer.

Behind the house he encountered two men he did not recognize, one of whom was sitting in a car. The man in the car said he wanted to buy the marijuana. Terry approached him and took the drugs out of his pocket. As he did this, the man in the car pulled out a pistol from under his clothing and pointed it at Terry. Terry, shocked at having the gun pointed at him, asked the man if he was really going to rob him over seven grams of marijuana. The man then shot Terry two times.

Terry stumbled back to the street, where police and an ambulance arrived shortly and took him to the hospital. The shooter and the other man fled. They did not take the drugs. Although there were various individuals present in and around 105 Montgomery Street at the time of the shooting, they were all uncooperative when police questioned them about the shooter's identity.

Fortunately, the neighbors in the house next door witnessed and filmed portions of the episode, and were more forthcoming with police. One neighbor identified Jhavon Goode, whom he recognized from high school, as being present behind 105 Montgomery Street before the shooting. The neighbors also filmed Terry going down the alley before he was shot, men fleeing after the shooting, and the wounded Terry stumbling back up the alley after the shooting. The film also captured the sound of gunshots. The police recovered two shell casings from the ground near where the shooting occurred, but no weapon.

Terry was taken to the Milford Memorial Hospital, where Detective John Horsman questioned him. Detective Horsman had been among the first officers to arrive at the scene of the shooting. Although Terry could not identify the shooter by name, he said that he would be able to recognize the man if he saw him. The next day, Terry was moved to Christiana Hospital. During his second interview with the police there, Terry repeated to Detective Horsman that he would be able to identify the shooter if he saw his face.

After the second interview with the police, Terry's cousin Raye Boone showed Terry a picture of Jhavon Goode that she found on Facebook. According to Boone, Goode had been going around town bragging about shooting Terry.¹ After seeing the picture of Goode, Terry was sure Goode was the man who shot him. The police arrested Goode for the shooting after Terry identified Goode as the shooter based on the picture Boone showed to him.

Before trial Goode filed a motion in limine to exclude Terry's identification of Goode based on the photograph. Although Goode called it a motion in limine , the Superior Court treated it as a motion to suppress. The court denied the motion because a citizen rather than a State official showed Terry the photograph. The Superior Court decided that an identification based on a photograph supplied by non-state actors, such as friends or relatives, would be admissible, even if it might not be admissible if orchestrated by the police.

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A Superior Court jury heard the case from January 12 to 15, 2015. Terry, Detective Horsman, the neighbors, and several other witnesses testified. Boone did not testify. After the close of the evidence, the trial judge read the jury the standard instruction on the burden of proof beyond a reasonable doubt. During their deliberations, the jury asked for additional clarification on the meaning of proof beyond a reasonable doubt. After considering the jury's request, counsel for the parties and the court agreed that it would be problematic to deviate from the standard instruction. With the agreement of counsel, the trial judge re-read the standard instruction. The court also informed the jury that it was the standard instruction approved by the Delaware Supreme Court, and that trial judges do not vary the instructions. Half an hour later, the jury returned a guilty verdict for the charges of first degree assault, possession of a firearm during the commission of a felony, and carrying a concealed deadly weapon. The court set a sentencing date of March 13, 2015.

After trial but before sentencing, the gun used in the shooting was found in a safe in the woods under unusual circumstances.² Although the gun was corroded, investigators were able to identify it as the gun used in the shooting because it matched the shell casings found at the crime scene. The parties and the court agreed that further testing should be done on the weapon.

The court continued Goode's sentencing on April 23, 2015 to permit Goode to do additional testing and if warranted to file a motion for a new trial. By the time of the next status conference on May 26, 2015, the defense still had not filed a motion for a new trial. To prevent further delay and recognizing the diminishing possibility that Goode would file a motion for a new trial, the Superior Court proceeded with sentencing. The court noted that if testing yielded some result that might entitle Goode to a new trial, he could appeal to this Court and have his concerns addressed on remand. The court then sentenced Goode on May 29, 2015 to a total of eighteen years at Level V incarceration with credit for time previously served. This appeal followed.

III. ANALYSIS

Goode makes five arguments on appeal. First, he argues the Superior Court should have suppressed Terry's identification of Goode based on the photograph shown to him by Terry's cousin, Raye Boone, because the identification procedure was overly suggestive and therefore constitutionally infirm. Next, Goode argues the State's failure to reveal Boone's identity earlier than it did amounted to a Brady violation and a violation of Superior Court Criminal Rule 16, and also a violation of the Confrontation Clause. Third, Goode argues there was insufficient evidence to convict him. Fourth, Goode argues the jury convicted him on a lesser standard of proof than “beyond a reasonable doubt” because it asked for an instruction clarifying the burden of proof, and the court merely repeated the standard instruction

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that it had given previously. Finally, Goode contends that the Superior Court should have granted a continuance of his sentencing after the discovery of the weapon used to shoot Terry, so that he could test it and move for a new trial. We address each of Goode's arguments in turn.

A. The Superior Court Did Not Err When It Declined To Suppress Terry's Identification Of Goode

Terry identified Goode as the shooter based on a Facebook photograph that Boone showed Terry. According to Goode, Terry's identification should have been suppressed as unduly suggestive and therefore a violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We review constitutional claims de novo .³ After a careful review of the record and the parties' legal arguments, we follow the United States Supreme...