Harris v. State

• Decision Date: 06 April 2010
• Docket Number: 2009.,No. 270,270
• Citation: 991 A.2d 1135
• Parties: Mark T. HARRIS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

991 A.2d 1135

Mark T. HARRIS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 270, 2009.

Supreme Court of Delaware.

Submitted: January 13, 2009.

Decided: April 6, 2010.

Thomas D. Donovan, Donovan & Hopkins, LLC, Dover, DE, for appellant.

John Williams, Department of Justice, Dover, DE, for appellee.

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the court en banc.

STEELE, Chief Justice, BERGER, and JACOBS, Justices for the Majority:

Dover police officers detained Mark Harris 165 feet from the Bibleway Church, and then found a plastic "baggie" containing marijuana in his mouth. Harris asserts that the trial judge erroneously denied his motions for judgment of acquittal of Tampering with Evidence, and of Possession of a Controlled Substance within 300 feet of a Church. Because the police perceived and immediately retrieved the baggie, we REVERSE his tampering conviction. Because LIDAR provided a reliable and trustworthy measurement of the distance to Bibleway, and Bibleway presumptively constitutes a "church, synagogue or other place of worship," we AFFIRM his possession conviction.

FACTUAL AND PROCEDURAL BACKGROUND

Harris placed a "baggie" of marijuana in his mouth.

Dover Police Officers Davis and Barrett observed a car, idling in a parking lot, with its headlights off and windows fogged. Harris and two other men occupied this car. The officers approached the car, and Davis tapped on the window and smelled marijuana when an occupant rolled down the window. The occupants denied having any marijuana, and the officers ordered them out of the car.

A third police officer, Corporal Connick, arrived on the scene. A search of the car revealed a warm, burnt, moist cigarette that the officers suspected — but never confirmed — contained marijuana.

During the search, Connick spoke with Harris. He observed that Harris's speech was muffled, and saw a small piece of plastic in Harris's mouth. Connick waited to catch the other officers' attention, grabbed Harris, and instructed him to spit out the plastic object. Harris did not immediately comply, but eventually spat out a small plastic bag containing 0.55 grams of marijuana.

The police measured the distance from the car to Bibleway.

Following the search, Davis noticed the Bibleway Temple Institutional Church of God and Christ located across the street. Davis requested that Stubbs measure the exact distance from the car to Bibleway with a LIDAR. Stubbs measured 165 feet from the car to Bibleway.

At trial, the trial judge overruled Harris's objection to the State's introducing the LIDAR measurement into evidence. Stubbs testified about his qualifications to use the LIDAR device, and that he measured the distance by standing near the passenger's side and "shooting" the distance. The log book confirmed he had calibrated that same LIDAR earlier in the day. External tests confirmed the accuracy and calibration of that LIDAR device.

Bibleway's sign read "Temple Institutional Church of God and Christ."

Davis saw that the building across the street from the parking lot had a sign that read "Bibleway Temple Institutional Church of God and Christ." He also testified at trial that Bibleway was a church, and that he had gone into Bibleway while responding to an earlier complaint.

STANDARDS OF REVIEW

We review the trial judge's denial of Harris's motions for a judgment of acquittal de novo to determine whether, considering the evidence in the light most favorable to the State, any rational trier of fact could have found Harris guilty, beyond a reasonable doubt, of the essential elements of the crime.¹

We review the trial judge's evidentiary rulings for abuse of discretion.²

ANALYSIS

A. Tampering with Evidence

11 Del. C. § 1269 criminalizes neither inchoate tampering nor tampering with items, but, rather, successful suppression of evidence.³

1. Police immediately retrieved the evidence from Harris's mouth.

Section 1269 does not apply to an attempted "act of concealment, alteration or destruction." Rather, it applies when the defendant "suppresses" the evidence by actual completed concealment, alteration, or destruction.

In Pennewell v. State, we held that the defendant did not tamper with evidence, because the drugs were "visible and immediately retrievable."⁴ Although Pennewell attempted to hide drugs from an approaching police officer, we held that he failed to commit the crime of Tampering with Evidence.⁵

Here, Connick saw plastic in Harris's mouth. Connick obviously believed that the plastic may have been a baggie containing contraband. Harris did not immediately spit out the baggie when the police officers told him to do so, nor did he successfully partially conceal the item for more than a brief moment. Pennewell does not require the police to retrieve potential evidence immediately. Rather, it requires "immediately retrievable" evidence. This rule makes sense, because it focuses on whether the defendant actually completed the required act of suppressing evidence.⁶ This rule in Pennewell also comports with our earlier decisions.

The exception, as we explained in Pennewell, applied to "abandonment," which results from failed "concealment." Whether Harris attempted to "destroy" the evidence does not materially affect our application of Pennewell. Rather, we may consider whether the evidence was "visible and immediately retrievable" to determine whether Harris failed to "destroy" — and by actually doing so, "suppress" the evidence. If he failed to suppress the evidence, then he did not meet the § 1269 felony tampering requirements.

In Pennewell, we discussed cases where the police could immediately retrieve evidence that the defendant attempted to suppress. We noted that police could immediately retrieve evidence from on top of a garage roof,⁷ the ground,⁸ and a bush.⁹ In each of these cases, the police officers saw the defendant attempt to suppress evidence, and they could "immediately" retrieve that evidence, thus frustrating the defendant's attempt to prevent its use against him in an official proceeding.

In Hardy v. State, when upholding a § 1269 conviction of a defendant who placed a bag of drugs in his mouth during a traffic stop, we misstated the applicable standard.¹⁰ We held that the jury had properly considered whether "Hardy had damaged or was attempting to destroy the drugs."¹¹ That, regrettably misstated the law. Section 1269 does not punish `attempted suppression of evidence,' nor does it punish `attempted concealment, alteration, or destruction of evidence.' The statute provides that "the person suppresses evidence by any act of concealment, alteration or destruction. ..."¹² The police officer noticed that Hardy clenched his jaw while speaking, and surmised that Hardy was concealing contraband in his mouth.¹³ Hardy's conviction could have been affirmed under the proper standard. That said, we emphasize here that § 1269 punishes only materialized suppression — not its mere attempt.

Delaware law punishes attempted crimes in a manner that corresponds to the underlying offense's severity. 11 Del. C. § 531 applies proportionate penalties to inchoate criminal actions.¹⁴ Section 1269, on the other hand, punishes a substantive offense, and does not allow the underlying offense to determine the degree of punishment. Whereas prosecutors may charge § 531 attempt crimes with the proper level of statutory force, § 1269 always carries felony penalties. We must, therefore, apply § 1269 consistent with the statutory intent. Our concurring colleagues believe that we misconstrue the General Assembly's intent. We believe the General Assembly relied on the commentary when it adopted our Penal Code. The commentary makes it clear that § 1269 cannot be read to felonize misdemeanor infractions of the Code.

The Delaware Criminal Code Commentary to § 1269 guides our understanding and the State's prosecution. The Commentary states that tampering deserves felony penalties, because "the crime is serious ... so the dangers of a miscarriage of justice are multiplied when such evidence is fabricated or concealed."¹⁵ Anyone who breaks into an evidence room, takes something from a police officer, or frustrates a search warrant obtained through probable cause has committed a "serious crime." But, someone who temporarily frustrates a police officer's happenstance investigation of a hand- or bag-full of drugs, has not committed a "serious crime." Harris did not commit a "serious crime" or "multiply dangers of a miscarriage of justice."

As Pennewell explains, briefly hiding contraband until the police take the contraband and the defendant into custody, does not constitute "suppression by any act of concealment." At best, that constitutes `delay by an act of concealment.' In these circumstances, that defendant has failed to suppress evidence from production or use against him. Whether the defendant briefly hides evidence on a rooftop or in his mouth, if the police perceive the act of concealment and could immediately retrieve the evidence, the defendant has failed to "suppress" evidence under § 1269.

Because Connick saw the baggie and "immediately retrieved" it from Harris's mouth, Harris did not suppress evidence within the meaning of to 11 Del. C. § 1269.

2. Police must perceive — visually, aurally, or otherwise — the evidence.

Although Connick testified to seeing the evidence in Harris's mouth, he also testified to hearing something muffle Harris's voice. Whether he initially detected the evidence through visual or auditory perception should not be controlling. Because both hearing the baggie's muffling effect and seeing the plastic in Harris's mouth gave Connick notice of Harris's attempt to suppress evidence, either perception would have frustrated Harris's requisite completion of the act of suppression. Pennewell states that a defendant has not committed tampering, when the evidence is "vi...