Johnson v. State

• Decision Date: 09 September 1989
• Citation: 587 A.2d 444
• Parties: Tyrone Lee JOHNSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 444

587 A.2d 444

Tyrone Lee JOHNSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: Sept. 9, 1989.

Rehearing en banc: May 15, 1990.

Decided: March 5, 1991.

Upon appeal from Superior Court. AFFIRMED.

Nancy Jane Perillo, Asst. Public Defender, Wilmington, for appellant.

Timothy H. Barron, Deputy Atty. Gen., Wilmington, for appellee.

Before CHRISTIE, C.J., HORSEY, WALSH, and HOLLAND, JJ., and ALLEN, Chancellor, constituting the Court en banc.

CHRISTIE, Chief Justice.

The opinion in this case dated January 11, 1990, which was released after argument before a panel of three justices and which affirmed Tyrone Johnson's convictions, is withdrawn. The following opinion of the Court en banc is substituted.

Johnson appeals his convictions in Superior Court for possession of a controlled substance with the intent to deliver and conspiracy in the second degree, in violation of 16 Del.C. § 4751(a) ¹ and 11 Del.C. § 512. ² He was convicted of these charges following a jury trial on February 11, 1988. He raises three contentions on appeal. First, he argues that the trial court erred in denying a motion for a mistrial when it became evident that a prosecution witness was not telling the truth during testimony. Secondly, he asserts that testimony regarding his out-of-court identification by an undisclosed informant was inadmissible hearsay and that its admission into evidence was reversible error. Finally, he contends that the trial judge should have instructed the jury that a defense under Wharton's Rule, as codified in 11 Del.C. § 521(c), ³ existed for the conspiracy charge. After hearing oral argument and reviewing the record and the briefs, we affirm the decision of the Superior Court.

The trial record reveals that on the night of Thursday, June 18, 1987, Delaware State Police Detective Harry Downs, working undercover and based on a tip from a confidential informant, sought to make a purchase of cocaine in Middletown, Delaware. He was introduced by the informant to the appellant who listened to his request and walked over to a parked car occupied by two men. The appellant returned saying that the men indicated that they had no drugs left, but they would go and get some more. The two men left in the car and were gone for approximately one-half hour while Downs waited with the appellant. When the car returned, the appellant approached it alone, paid the occupants $20.00 supplied by Downs, and received a small bag of cocaine. The appellant then returned and gave the cocaine to the police officer. Upon returning from the purchase, Downs gave descriptions of the appellant and the two others who had participated in the transaction to the New Castle County Police in the presence of the confidential informant. As Downs described the participants, the confidential informant provided names of the individuals. New Castle County Police arrested Johnson, Adam Daniels, and Devin Dickerson on August 6, 1987. From their arrest photographs, Downs confirmed that they were the three persons involved in the June 18 drug sale. All three were charged with delivery of a Schedule II narcotic in violation of 16 Del.C. § 4751(a) and conspiracy in the second degree in violation of 11 Del.C. § 512. Daniels was charged with additional violations. Prior to trial appellant moved for disclosure of the identity of the confidential informant. The Superior Court held an in camera Flowers hearing during which the judge met with and interrogated the confidential informant. The appellant's motion was denied because the court found

... that the informant can offer no testimony supporting [Johnson's] contention that he was misidentified as a participant in the drug transaction which is the subject matter of this prosecution.

Under terms of a plea agreement entered on the day of trial, Daniels pleaded guilty to the drug delivery charge, the State dropped several other charges against him, and Daniels agreed to testify against Johnson and Dickerson. In his testimony, Daniels said that Johnson had not been with Dickerson and himself in the car on June 18. Johnson had purchased drugs from Daniels but had not directly indicated that the purchase was for someone else. Daniels had observed the other man (Downs) and testified that he "just figured [Johnson] was coming for someone else." Daniels also testified that Johnson only approached his car once that evening.

During his testimony, Daniels stated that he had never participated in a drug sale before or since the June 18, 1987 incident. However, at the end of the State's case, the deputy attorney general read into the record an affidavit which stated that a police detective had purchased cocaine from Adam Daniels on a date prior to June 18, and that Daniels had been indicted for that offense. Defense counsel moved for a mistrial on the basis that the State had knowingly relied on perjured testimony by Daniels. The court denied the motion, holding that while it was clear that the witness had not been truthful about his other drug dealing, there was no proof that his account of the transaction at issue in this trial was false.

Detective Bruce Arterbridge of the New Castle County Police testified that after the drug transaction he met with Detective Downs and the confidential informant. As Downs described the events and the individuals involved, the informant assisted by matching the descriptions of the participants to the names of individuals he knew. Over defense objection, Arterbridge testified that the informant identified the three defendants. The trial court ruled that Arterbridge's testimony did not constitute hearsay because it was offered only to explain the ensuing activities of the police who arrested the three defendants six weeks later. Additionally, the trial judge noted that the testimony of other eyewitnesses, Downs and Daniels, had established the identity of the defendants as those who took part in the transaction. The jury was given a specific instruction that the confidential informant's naming of the defendants was not to be considered as evidence of their guilt.

At trial the appellant's defense was mistaken identity. The appellant and his wife were the only new witnesses called by the defense. They testified that the appellant's usual habit was to be at home with his family on weekday evenings.

Co-appellant Dickerson did not put on a defense. He and Johnson were found guilty of both counts against them. Johnson alone has brought this appeal.

I.

Johnson's first contention on appeal is that the court erred by failing to grant his motion for a mistrial following the perjured testimony by Daniels. Appellant relies upon Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). The court below held that no proof had been introduced which called into doubt Daniels' testimony concerning the drug transaction on June 18, 1987. We agree with the trial court's holding on this issue. Contrary to the situation in the Napue case, the prosecutor had not knowingly allowed the witness to lie, and he had entered into the record evidence which contradicted the false testimony. The prosecutor also mentioned in his closing remarks the falsehood told by the witness. The jury was fully informed of Daniels' perjury. We hold that the false testimony affected only the credibility of the witness which could be properly weighed and determined by the jury. Tyre v. State, Del.Supr., 412 A.2d 326, 330 (1980).

II.

Johnson next argues that an out-of-court statement by an unnamed informant which identified the defendants was inadmissible hearsay, and its admission into evidence was reversible error. He also asserts that the admission of Downs' and Arterbridge's testimony concerning identifications made by the confidential informant violated the appellant's right to confront witnesses guaranteed by the Sixth Amendment of the United States Constitution.

A.

Delaware Rules of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." If a statement is introduced for a purpose other than its truth, however, it may be admissible under some circumstances. If it is admitted for another purpose, that purpose must be relevant to an issue of the trial. D.R.E. 401. ⁴ However, while evidence may be relevant, it must also be substantially more probative to an issue than prejudicial to the defendant. D.R.E. 403. ⁵ It is under these rules that the testimony in question must be analyzed.

Problems arise when the statement to be quoted may serve more than one purpose. McCormick states:

In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct. His testimony that he acted "upon information received," or words to that effect, should be sufficient. Nevertheless, cases abound in which the officer is allowed to relate historical aspects of the case, replete with hearsay statements in the form of complaints and reports, on the ground that he was entitled to give the information upon which he acted. The need for the evidence is slight, the likelihood of misuse great.

McCormick, Evidence § 249 at 734 (Cleary 3d ed. 1984).

This Court has held that testimony regarding statements which explain why the police believed a particular person was a suspect is not hearsay, because the accuracy of the statements is not asserted. Whalen v. State, Del.Supr., 434 A.2d 1346 (1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1258, 71 L.Ed.2d 449 (1982). ⁶ In that case, an investigating officer stated during cross-examination by defense counsel that specific information which indicated that the defendant may have committed the crime was provided by interviews with neighbors. This Court...