Robertson v. State

• Decision Date: 21 November 1990
• Citation: 596 A.2d 1345
• Parties: Rodney ROBERTSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 1345

596 A.2d 1345

Rodney ROBERTSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: Nov. 21, 1990.

Decided: July 31, 1991.

Upon appeal from Superior Court. Reversed and Remanded.

Joseph A. Hurley (argued), Wilmington, for appellant.

Fred S. Silverman, Chief Deputy Atty. Gen., and Timothy J. Donovan, Jr., Deputy Atty. Gen. (argued), Wilmington, for appellee.

Before CHRISTIE, C.J., HORSEY and HOLLAND, JJ.

HORSEY, Justice:

Defendant, Rodney Robertson, was convicted in a jury trial in Superior Court of Trafficking in Cocaine (16 Del.C. § 4753A) and Possession of Cocaine (16 Del.C. § 4754), the lesser included offense of the charge of Possession with Intent to Deliver Cocaine (16 Del.C. § 4751). See 16 Del.C. § 4762. Defendant was sentenced to a term of five years' incarceration on the trafficking conviction, of which the first three years were mandatory. Defendant was also fined $50,000, which was suspended, and given a suspended sentence of one year's incarceration on the possession charge. Defendant's appeal raises four issues: (1) whether the detention and search of the defendant and subsequent seizure of evidence violated defendant's Fourth Amendment rights; (2) whether the trial court's instructions adequately explained to the jury the elements of the offense of trafficking in cocaine; (3) whether there was sufficient evidence to support the convictions; and (4) whether the State's repeated oblique references to defendant's failure to testify constituted plain error, in violation of defendant's Fifth Amendment rights. We find no merit in the first three issues raised by defendant on appeal. However, we find that the prosecutor's remarks constituted impermissible comments on defendant's election not to testify, and further that such remarks amount to plain error. Accordingly, we reverse defendant's convictions and remand the case for a new trial.

I

At about 10:00 p.m. on September 1, 1989, a City of Wilmington police officer, on routine patrol in a section of Wilmington known to have a high incidence of drug and alcohol traffic, was attracted by loud music coming from a car parked at the curb of 13th and Wilson Streets. Officer Michael Maggitti observed defendant Robertson sitting in the driver's seat of a Cadillac Eldorado, a "very nice looking car," with a male passenger in the front seat and a third male standing by the partially opened door on the driver's side. Officer Maggitti stopped his cruiser in front of the Cadillac with the intention of telling the occupants to turn the car radio down. As he approached on foot the music subsided, but the officer continued on--his suspicions aroused by the combination of the youthful appearance of the driver and make of the car.

Maggitti asked Robertson who owned the car, and Robertson replied that it belonged to his brother. When Maggitti asked the name of his brother, Robertson replied that the car was not in his brother's name. Maggitti then ordered Robertson out of the car and frisked him for weapons. At some point, a second police car arrived with patrolmen Brown and Butler. Patrolman Brown had already taken custody of the young man standing at the side of the vehicle, and Patrolman Butler came forward to take charge of the defendant. As Butler approached, he noticed a brown paper bag on the ground under the Cadillac, lying four to six inches in from the driver's side. As Maggitti retrieved the bag, Robertson exclaimed that the bag was not his. The bag contained U.S. currency and foil wrapped packets, typical of illegal drug packaging. Robertson was read his Miranda rights. More cash was found in a voluntary search of the car ($90) and on Robertson's person. The paper bag contained $20 cash and 6.01 grams of cocaine.

Defendant did not move to suppress the evidence. The defendant did not testify at trial, nor did he offer any witnesses. In both opening and rebuttal summations, the prosecutor repeatedly characterized the evidence as "undisputed":

1) It is not disputed, at least there's been no dispute from that witness stand, no witness has come in to question the state's evidence that on September 1st, 1989, at about ten p.m. the police came upon an automobile containing the defendant; that located, as the police officer described for you, inches from the defendant's hand was a bag that contained over six grams of cocaine.

2) You'll see what [defendant's attorney] says, but I suggest to you for now that there's going to be no real dispute, no basis to dispute anything of what I just said. The defendant was seated in that car, and there was a bag of cocaine right by his hand.

3) It's undisputed from the witness stand that the police approached the car and they did not see any kind of movement out of "C" [the person standing outside of the car] along the lines of this or this (demonstrating).

4) Well, we know that the bag was by the defendant's left hand, the hand that would be hanging down by the car. For A to have gotten the bag there, he would have to have somehow reached all the way, way down under the car and thrown it under. Again, it's undisputed that that did not happen.

5) There is no testimony whatsoever that the drugs, if they were possessed by him, were possessed by him for his personal use.

6) A, B and C. A is the defendant. He got arrested, as you can see from the evidence, because the drugs were right by his hand. There's no evidence that came from the witness stand that those drugs came from B, who was on the other side of the car, or C, who was on the other side of the door. There's no--there's no evidence that came from this witness stand that those drugs were in the street before the defendant arrived. There's no evidence that came from the witness stand that those drugs came from B or C. And the evidence is actually to the contrary, that it did not come from them.

The defendant did not object to any of these statements, nor did the trial court intercede. After the parties' closing statements, as part of the jury charge, the trial judge gave the jury a routine instruction that they were not to draw an inference of guilt from the defendant's failure to testify. The jury found Robertson guilty of Trafficking in and Possession of Cocaine. 16 Del.C. §§ 4753A and 4754.

II

We first address defendant's contention that the seizure and detention of the defendant was illegal, and therefore that all evidence subsequently discovered should be suppressed. Since defendant raises this claim for the first time on appeal, we must apply a plain error standard of review. Brokenbrough v. State, Del.Supr., 522 A.2d 851, 856 (1987). Defendant argues that under the totality of the circumstances, Officer Maggitti did not have the "reasonable and articulable suspicion" necessary in order to seize or detain the defendant. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Defendant argues that the officer's observation of a young person in an "older model" Cadillac does not even approach the level of suspicion necessary to justify detaining the defendant, ordering him out of the car, and frisking him for weapons.

In response, the State argues that the officer's questioning of Robertson as to the ownership of the car while Robertson was sitting in a parked car was not a "stop" or "seizure" under the Fourth Amendment. The State further suggests: (1) that the officer had a legitimate reason to approach the car, based on the noise violation; (2) that defendant's contradictory statements of the car's ownership reasonably aroused Officer Maggitti's suspicion that the car might be stolen; and (3) that the officer had reason to detain the defendant based on the defendant's response, his age, the type of car and the fact that the police had been receiving complaints of crime in the area. The State argues that these facts justified a brief Terry-type detention to determine the status of the vehicle. Therefore, the police were properly proceeding with an investigatory stop when the bag containing drugs appeared in plain view. Alternatively, the State contends that Robertson did not have standing to challenge the search and seizure, or that Robertson's Fourth Amendment rights were not implicated, even if he did have standing, because society does not recognize a privacy interest in "street trash." Finally, the State contends the search of the car was justified pursuant to defendant's arrest for drug trafficking.

The Fourth Amendment protects individuals against unreasonable searches and seizures. The individual's privacy interest is balanced against the public interest in law enforcement. Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 361-62 (1979). There is an additional concern for the investigating officer's safety, who must be personally secure to perform his or her duties. Terry, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. "Thus, the permissibility of a particular law-enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Goldsmith v. State, Del.Supr., 405 A.2d 109, 111 (1979) (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667-68 (1979)).

For each encounter between a private citizen and a law enforcement agent, the degree of suspicion required varies with the nature of the seizure. See Coleman v. State, Del.Supr., 562 A.2d 1171, 1174 (1989), cert. denied, 493 U.S. 1027, 110 S.Ct. 736, 107 L.Ed.2d 754 (1990). As the stop becomes more invasive, the articulable facts which form the basis of the stop must edge towards probable cause from reasonable suspicion. The minimum level of detention is the brief investigatory stop identified in Terry. Since a stop does not rise to the level of an arrest, probable cause is not required. United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585, ...