Phillips v. State

• Decision Date: 17 January 2017
• Docket Number: No. 511, 2015,511, 2015
• Citation: 154 A.3d 1146
• Parties: Jeffrey PHILLIPS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

154 A.3d 1146

Jeffrey PHILLIPS, Defendant Below, Appellant,

v.STATE of Delaware, Plaintiff Below, Appellee.

No. 511, 2015

Supreme Court of Delaware.

Submitted: November 2, 2016

Decided: January 17, 2017

Kevin J. O'Connell, Esquire (Argued ), Bernard J. O'Donnell, Esquire, Misty A. Seemans, Esquire, Office of Public Defender, Wilmington, Delaware, Attorneys for Defendant Below, Appellant.

Sean P. Lugg, Esquire (Argued ), Andrew J. Vella, Esquire, Department of Justice, Wilmington, Delaware.

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en Banc.

HOLLAND, Justice; for the Majority:

This is a direct appeal from a final judgment of convictions in the Superior Court. A grand jury issued a 54 count indictment charging the defendant below Appellant, Jeffrey Phillips ("Jeffrey"), Otis Phillips ("Otis"), and fourteen other co-defendants with gang participation charges relating to criminal activities of the Sure Shots street gang (the "Sure Shots"). Jeffrey was charged with two counts of Murder in the First Degree, Attempted Murder in the First Degree, Gang Participation, Conspiracy in the First Degree, Reckless Endangering in the First Degree, Four Counts of Possession of a Firearm During the Commission of a Felony, Riot, Conspiracy in the Second Degree, Disorderly Conduct, Two Counts of Assault in the Third Degree, and Criminal Mischief. The State sought the death penalty for Jeffrey.

The Superior Court denied severance motions and, instead, conducted a joint capital trial of Jeffrey and Otis that began on October 20, 2014 and lasted 21 days. On November 21, 2014, the jury convicted Jeffrey of Murder in the First Degree, Manslaughter (as a lesser-included offense), Gang Participation, Conspiracy in the First Degree, Four Counts of Possession of a Firearm During the Commission of a Felony, Assault in the Second Degree, Reckless Endangering in the First Degree, and Disorderly Conduct (as a lesser-included offense). The jury acquitted Jeffrey of Assault in the Third Degree and Conspiracy in the Second Degree.

The penalty hearing began on December 18, 2014, and the jury found " ‘two in the affirmative, 10 in the negative’ on the question of whether the aggravating circumstances outweighed the mitigating circumstances." The State withdrew its intent to seek the death penalty on September 4, 2015, and the Superior Court sentenced him to life imprisonment and an additional 72 years in prison, followed by decreasing levels of supervision, for the remaining convictions.

Jeffrey raises five issues on appeal. First, Jeffrey challenges the Superior Court's refusal to grant a mistrial on the basis of prosecutorial misconduct and prejudicial testimony. Second, Jeffrey claims that the Superior Court denied him the right to effectively prepare for trial by granting the State's protective orders. Third, Jeffrey contends that the Superior Court erred in refusing to grant severance from a joint trial with Otis and from joining the Gang Participation and Riot charges with the homicide charges. Fourth, Jeffrey argues there was insufficient evidence for a reasonable jury to convict him of Gang Participation. Finally, Jeffrey claims that the Superior Court's deficient jury instructions require reversal.

We have determined that all of Jeffrey's arguments are without merit. Therefore, the judgment of the Superior Court must be affirmed.

Facts

On January 27, 2008, Christopher Palmer was shot and killed inside an after-hours nightclub in Wilmington, Delaware. Herman Curry witnessed the murder. More than four years later, on July 8, 2012, Curry and Alexander Kamara were shot and killed during a soccer tournament at Eden Park in Wilmington, Delaware. Wilmington Police Department ("WPD") officers investigated the 2008 and 2012 murders. The investigations revealed that the suspects in the homicides, Otis and Jeffrey, were members of a gang known as the "Sure Shots."

Christopher Palmer Murder. There was a birthday party for Curry on January 27, 2008 at a nightclub on Locust Street in Wilmington. Palmer, the security guard responsible for checking guests for weapons prior to entry, denied three individuals—believed to be Otis, Jovani Luna, and Dwayne Kelly—entry into the club because "one or more of them was armed." A bystander, Clayon Green, witnessed the trio of men return and saw one of them push Palmer after he was again denied entry. According to Green, "Palmer and his assailant fell into a nearby bathroom, Otis ‘reached around’ into the bathroom and Green heard three shots." Palmer died as a result of the gunshot wounds. Curry also witnessed the incident and identified Otis as Palmer's shooter in a photo lineup. Afterwards, Kelly told Paula Thompson—his girlfriend at the time—that he and Otis were going to New York and Kelly did not see Otis after that visit.

Nightclub Incident. Four years later, on July 7, 2012, Jeffrey was involved in another shooting at a nightclub. According to the State, Kelmar Allen's testimony established that Allen removed Jeffrey from the club after Jeffrey got into an altercation with a rival gang member. As Allen and Kirt Williams waited for an elevator, Christopher Spence shot at them, "killing Williams and wounding Allen." After running outside, Allen "saw Jeffrey firing a .40 caliber gun at a person named ‘Mighty,’ " a rival gang member. The next day, Allen saw Jeffrey at a house on Lamotte Street, where he and other Sure Shots members were "collecting guns and bullets in the basement of the home." According to Allen, the members were angry because they wanted to find the rival gang members from the night before. The Sure Shots leader, Seon Phillips ("Seon", Otis's brother, no relation to Jeffrey), loaded a .40 caliber gun and gave it to Jeffrey.

Eden Park Murder. On July 8, 2012, Curry organized an annual soccer tournament at Eden Park in Wilmington, Delaware. While Ricardo Brown was preparing food at the outdoor kitchen with Curry, he noticed two men walk through a gate onto the soccer field. Shortly after that, he heard "fire rockets go off" and "turned and saw one of the men shoot Curry while the other shot his gun ‘wild[ly].’ " Curry and Kamara died as a result of their gunshot wounds (the "Eden Park Homicides").

There were other witnesses to the homicides. Nearby soccer player, Raoul Lacaille saw two men approach Curry, tap him on the shoulder, and shoot him, identifying Otis as Curry's shooter. Omar Bromfield also heard what he described as firecrackers, saw a crowd running through the parking lot, and discovered shortly after that he had been shot. Venus Cherry, a tournament participant, saw two men enter the field, approach Curry, tap him on the shoulder, and one said, "Ninja, run, pussy, today you are dead," prior to shooting him. According to Cherry, "[t]he second man turned toward the ‘kitchen’ area and fired his gun; a bullet hit Kamara and Cherry." Cherry identified Otis as Curry's shooter and Jeffrey as Kamara's shooter.

Green witnessed Otis and Jeffrey walk across the field and then "saw Otis shoot at Curry, and Jeffrey shoot toward the parking lot as if to clear the way." Green then saw Otis and Jeffrey return to a gold car, and saw Christopher Spence approach the car and shoot the driver, Serge. Minutes after the shooting, officers found the gold car crashed at a nearby intersection. Officer Corey Staats found a handgun on the rear seat, "and observed the semi-conscious driver bleeding from his torso." Upon searching the vehicle, police discovered a 9 mm handgun, .40 caliber handgun, and black baseball cap containing DNA that matched that of Otis. According to firearm examiner Carol Rone, the shell casings collected from the Eden Park crime scene were fired from the recovered firearms.

Officers searched the surrounding area for the two men who had fled from the crashed gold car and located Otis and Jeffrey in a back yard approximately four blocks north of Eden Park. A brief standoff followed, and then the officers arrested Otis and Jeffrey. The police noticed Jeffrey was wounded from a gunshot in the leg and discovered 20 rounds of 9 mm ammunition in his pants pocket.

The State's primary witness against Jeffrey was Allen. During his direct testimony, Allen asserted that Jeffrey was a member of the Sure Shots, had received a loaded .40 caliber semi-automatic handgun from the leader of the Sure Shots, Seon, just prior to going to Eden Park on July 8, 2012, and was a willing participant in the shootout that took place in Eden Park on July 8, 2012. Prior to trial, Allen had pleaded guilty to Gang Participation. The sentence imposed by the trial judge was a period of incarceration suspended for time served (119 days) followed by level III probation.

Gang Participation. The Sure Shots originated in Delaware in 1995 and was involved primarily in illegal drug trafficking. Sure Shots members had a reputation of carrying and using their firearms and engaging in various assaults, shootings, and homicides. The State alleges that Otis and Jeffrey were members of the Sure Shots. This allegation is predicated upon the WPD's investigation into the Palmer murder, the nightclub incident, and the Eden Park Homicides, as well as an altercation at a Royal Farms (the "Royal Farms Incident").

On February 26, 2012, Shanice Kellam, her brother, Jeremy Showell, and three other friends went to a Royal Farms store in Bridgeville, Delaware. As they entered the store, Kellam heard a man say "[y]ou're a bad bitch," to which Showell responded, "she's not a bitch, she's a lady." A group of men approached them and one punched Kellam in the face. The men then attacked Kellam and Showell. A second carload of men arrived at the Royal Farms and joined the first group in their attack of Kellam and Showell. The altercation was captured on video and Detective Curley identified Jeffrey and other members of the Sure Shots gang as Kellam's and Showell's assailants. The WPD homicide investigations and the...