Sullins v. State

• Decision Date: 23 July 2007
• Docket Number: No. 466, 2006.,466, 2006.
• Citation: 930 A.2d 911
• Parties: Jerome SULLINS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

930 A.2d 911

Jerome SULLINS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 466, 2006.

Supreme Court of Delaware.

Submitted: May 23, 2007.

Decided: July 23, 2007.

Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr. I.D. No. 0405017780.

Upon Appeal from the Superior Court.

AFFIRMED.

Jan A.T. van Amerongen, Jr., Esquire, Wilmington, Delaware for Appellant.

Timothy J. Donovan, Jr., Esquire, Department of Justice, Wilmington, Delaware, for Appellee.

Before, HOLLAND, BERGER and JACOBS, Justices.

JACOBS, Justice.

Jerome Sullins ("Sullins") appeals from his Superior Court convictions and sentences on various drug charges. Sullins claims that the Superior Court reversibly erred in: (1) denying his motion to dismiss the indictment on Double Jeopardy grounds after the Superior Court declared a mistrial; and (2) permitting the State to introduce testimony that Sullins was under probation supervision at the time of his arrest. We find no merit to Sullins' claims and, therefore, affirm.

FACTS

On April 21, 2004, Delaware State Police Detective Vincent Clemons ("Detective Clemons") learned from an informant that Sullins had crack cocaine for sale at his residence on Carter Street in Wilmington. At Detective Clemons' request, the informant telephoned Sullins and arranged to buy cocaine from him. Clemons then notified the Wilmington police of the impending drug transaction. Because Sullins was on probation, Wilmington police notified officials at Probation and Parole.

Probation officers, accompanied by Wilmington police, drove to Sullins' Carter Street residence, where Sullins was standing in his doorway. Upon seeing the probation officers, whose shirts identified them as such, Sullins went inside his house and shut the door. The officers followed. While inside, the officers heard noises coming from the second floor, and ordered Sullins to surrender. Sullins complied. He came downstairs from a second floor bedroom, and was apprehended in the kitchen. On Sullins' person, police officers found $1,630. Checking the bedroom from which he had come, officers noted that a vent cover had been removed from the wall. At the bottom of the duct, in the basement police officers found two bags of crack cocaine weighing approximately two and half ounces. Sullins admitted that the drugs belonged to him. The police also found an electronic scale.

Sullins was indicted for Trafficking Cocaine in Excess of 50 grams, Possession with Intent to Deliver Cocaine, Maintaining a Dwelling for Keeping Controlled Substances, Possession of Drug Paraphernalia and Resisting Arrest. At Sullins' first trial, which began on February 15, 2005, Sullins' defense counsel moved for a mistrial when the prosecutor asked the first witness, Detective Clemons, whether he was "working with an individual or an informant." Defense counsel argued that the reference to an informant would unfairly buttress the credibility of the police witnesses. The trial court denied the mistrial motion, but cautioned the prosecution that the police witness should not "even come close to testifying as to what an informant told him."

On re-direct examination, the prosecutor asked Detective Clemons to describe his "role in this, what actually went down on April 21st, 2004." Clemons replied that he "had information that a black male named George who lived on Carter Street was selling crack cocaine." (Another witness testified that George was a name used by Sullins.) At this point defense counsel renewed his motion for a mistrial, arguing that both the existence of an informant had been disclosed as well as the information the informant had supplied. The trial court denied the motion but instructed the jury to disregard the testimony as hearsay.¹ Later that day, the defense requested a Flowers² hearing to determine whether the confidential informant could testify favorably to the defense case. The Superior Court denied the motion, based on its recollection of the Flowers opinion.

During the overnight recess, the trial judge re-read Flowers and concluded that his previous day's ruling was erroneous. At the beginning of the next trial day, the trial court discussed possibly reversing its ruling. The prosecutor protested that the motion for a Flowers hearing should have been made before trial, but stated that "if I need some time to do that and I'll need to contact Detective Clemons. . . ." The trial judge then addressed defense counsel:

THE COURT: Well, Mr. Malik [defense counsel], I don't know if there's anything for you to say since I told you I'm about 98 percent toward granting your motion.

MR. MALIK: Sometimes, Your Honor, it's better to say nothing and just sit down. That's what I'm going to do. I agree with the Court.

THE COURT: I will grant then the defendant's motion for a mistrial based on not having had an opportunity to have a Flowers hearing pretrial. The case will go back on the list so the State can then determine whether it's necessary at the subsequent trial to refer to the informer because that appears to be the key element here. So a mistrial is declared.

The prosecutor then began to re-argue the merits of his Flowers position:

MR. CHAPMAN [prosecutor]: Mr. Malik didn't file the pretrial Flowers hearing before the trial. I don't see why the State is being — why the case — there's got to be a mistrial declared.

MR. MALIK: Your Honor, if I can just respond just for the purposes of the record. I'd like to respond to why I didn't file for a Flowers hearing before trial. That was because under the three scenarios of Flowers, I didn't think that anything applied where there was a basis for it when we got into trial. And then when the State started mentioning the informant — they mentioned the informant, not me.

THE COURT: I find that as well.

After the Superior Court declared a mistrial, Sullins then moved to dismiss the indictment, claiming that a second trial would violate his constitutional right against double jeopardy, because the Superior Court had declared a mistrial sua sponte. Delaware case law holds that the Double Jeopardy clause does not preclude a defendant's retrial if the record shows that the mistrial was declared sua sponte by the Court for reasons of "manifest necessity."³ The Superior Court conceded that it did "not consider whether there was a manifest necessity for a mistrial."⁴ Nevertheless, it denied Sullins' motion to dismiss, ruling that Sullins' double jeopardy argument lacked merit because there was no indication that the prosecution had deliberately provoked a mistrial.⁵

At his second trial, Sullins produced two witnesses, James Brown and Robert Truitt. Both witnesses claimed that they had been living with Sullins at his Carter Street residence at the time of the search and arrest. In rebuttal, the State proffered the testimony of Andrea Sullivan, Sullins' probation officer. Sullivan testified that, as a condition of Sullins' probation, Sullins was required to notify her of the persons with whom he was living, and that Sullins had never notified her of either Brown or Truitt. Sullins objected to Sullivan's testimony under D.R.E. 403, arguing that the relevance of that evidence was substantially outweighed by the danger of unfair prejudice to the defense from Sullins being identified as a probationer. The trial judge overruled the objection, and after Sullivan testified, gave the jury an appropriate limiting instruction.

In April 2006, the jury returned verdicts of guilty of the charges of Trafficking in Cocaine, Possession of Cocaine (a lesser included offense of Possession with Intent to Deliver), Maintaining a Dwelling, and Possession of Drug Paraphernalia. The jury found Sullins not guilty of Possession with Intent to Deliver and Resisting Arrest. Following the verdict, Sullins moved for a new trial, claiming that the Superior Court had abused its discretion in permitting the proffered probation officer's testimony that Sullins was on probation at the time of the alleged offense. The Superior Court denied Sullins' motion.

In August 2006, the court sentenced Sullins to fifteen years at Supervision Level 5, suspended after ten years for eighteen months at Supervision Level 3 for Trafficking in Cocaine; and for the other convictions, for a total of five years at Supervision Level 5, suspended immediately for Supervision Level 3.

On appeal, Sullins presents two issues. The first is whether the Superior Court erroneously denied Sullins' motion to dismiss his indictments based on violations of the Double Jeopardy clauses of the Delaware and United States Constitutions. The second is whether the trial court abused its discretion by admitting Sullins' probation officer's testimony that Sullins was under probation supervision at the time of his arrest. These issues are addressed in that order.

ANALYSIS

I. The Double Jeopardy Claim

We review claims alleging an infringement of a constitutionally protected right, including the right not to be subjected to double jeopardy, de novo.⁶

The Double Jeopardy Clauses of the United States and the Delaware Constitutions protect a criminal defendant against multiple punishments or successive prosecutions for the same offense.⁷ In Green v. United States,⁸ the United States Supreme Court described the policy underlying the Double Jeopardy provision as follows:

[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.⁹

A criminal defendant owns "the valued right to have his trial completed by a particular tribunal."¹⁰ The declaration of a mistrial implicates that right. The declaration of a mistrial does not always contravene...