Walls v. State

• Decision Date: 21 February 1989
• Citation: 560 A.2d 1038
• Parties: Joseph M. WALLS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 1038

560 A.2d 1038

Joseph M. WALLS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: Feb. 21, 1989.

Decided: June 1, 1989.

Jerome M. Capone, Wilmington, for appellant.

Richard E. Fairbanks, Jr. and Timothy J. Donovan, Jr., Dept. of Justice, Wilmington, for appellee.

Before HORSEY, WALSH and HOLLAND, JJ.

HOLLAND, Justice:

Following a jury trial in the Superior Court, the defendant-appellant, Joseph M Walls ("Walls"), was convicted of one count each of First Degree Burglary, Second Degree Conspiracy, Terroristic Threatening, and Possession of a Deadly Weapon during the Commission of a Felony, and two counts each of First Degree Robbery, Second Degree Kidnapping, and Second Degree Assault. Identical charges, except for Terroristic Threatening, were brought against Efrain Hernandez ("Hernandez"), as a co-defendant. The same jury which convicted Walls was unable to reach a unanimous verdict with respect to Hernandez on any charge. A mistrial was declared as to Hernandez. This is Walls' direct appeal of his convictions.

Walls raises eight issues in this appeal. He argues through his attorney that: (1) the Superior Court erred, as a matter of law, in permitting his in-court identification by certain witnesses and thereafter by refusing to allow the jury to hear evidence that it had ruled that Walls' out-of-court identification by the same witnesses had resulted from an impermissibly suggestive police photographic line-up; (2) the Superior Court's decision to permit the introduction of his nicknames "Mad Dog" and "Wild Dog" into evidence by the State was improper and prejudicial; (3) the Superior Court committed plain error in failing to order, sua sponte, the severance of Walls' and Hernandez's trials; (4) the jury's failure to convict his co-defendant, Hernandez, precluded the State from proving a material element of the charges against Walls; (5) the evidence did not support a guilty verdict on the count of First Degree Burglary; (6) the prosecutor's closing arguments were improper and denied Walls a fair trial; (7) the evidence failed to support Walls' convictions of the Second Degree Kidnapping charges; and (8) the Superior Court improperly instructed the jury on the legal elements of the kidnapping charge.

In this appeal, the State acknowledges that the jury instruction on the kidnapping charge was incomplete. The State suggests that the incomplete nature of the instructions to the jury resulted in reversible error, with respect to the kidnapping charge. We have independently reviewed the Superior Court's instructions to the jury and reach the same conclusion. Therefore, Walls' convictions for Second Degree Kidnapping must be reversed. We find no merit in any of Walls' other contentions.

Facts

On the evening of December 14, 1985, the Pancoasts, Jeffrey, Anna, and their six-year-old son, Justin, were at home in their residence in Newport, Delaware. ¹ A family friend, Dmytro Shevchenko, was with them. At approximately 8:45 P.M., there was a knock at the front door. Mrs. Pancoast opened the front door thinking that her father-in-law was there.

When Mrs. Pancoast opened the door, two strangers pushed their way into the house, knocking her into a table. One of the men was white, with reddish-brown hair and a beard. He was carrying a metal baseball bat. He was later identified by the Pancoasts as Walls. The other man was described as being dark complected, with a mustache. He had a hand gun. The Pancoasts later identified this man as Hernandez. Neither of the men wore a mask or disguised his face in any way.

Mr. Pancoast jumped up and demanded to know what was happening. Walls struck him on the head with the metal bat, causing a wound that was closed later with four sutures. Walls told Mrs. Pancoast to take her son and to sit on the sofa. The other man then held the handgun to Justin's head. He said that he would shoot Justin if anyone did not cooperate. He then ordered Mr. Pancoast and Mr. Shevchenko to face the wall.

Walls demanded money from both Mr. Pancoast and Mr. Shevchenko. Mr. Pancoast gave him twelve dollars that he had in his pockets. Mr. Shevchenko gave Walls his wallet, which contained more than four hundred dollars. The victims were told that they would be shot if they looked outside through the windows. The two intruders then pulled the telephone wires out of the wall. As the strangers left the Pancoasts' home, one of them sarcastically said "Merry Christmas."

Approximately one week later, the Pancoasts saw Walls at a gasoline station near their home. They testified that when Walls saw them, he became "jittery." After he paid for his gasoline, Walls got into his car quickly and drove away. Although it was dark at the time, Walls did not turn on his automobile's headlights. Therefore, the Pancoasts were unable to see his license plate number. However, the Pancoasts testified that there was sufficient artificial illumination for them to see Walls' face before he got into his car.

Sometime in the middle of January, 1986, the New Castle County Police showed a photographic line-up to the Pancoasts ² for the Caucasian man. The Pancoasts were shown the line-up at the same time, while seated next to each other. Mr. Pancoast identified Walls first from the photographs. Mrs. Pancoast then identified Walls from the same photographs. At a later date, the Pancoasts were shown another photographic line-up by the Newport Police. At that time, they both identified the photograph of Hernandez. The Pancoasts subsequently returned to the Newport Police station and were shown the same two photographic line-ups for a second time. Again, they both identified the photographs of Walls and Hernandez.

On February 7, 1986, the police executed a search warrant at Walls' home. The return of the search warrant did not reveal the discovery of any stolen items. However, a photograph of Hernandez and his brother, Carlos Hernandez ("Carlos"), was seized during the search. There was some writing on the back of the photograph addressed to Walls and his wife, Donna. The names "Wild Dog" and "Mad Dog" were also written on the back of the photograph.

Walls and Hernandez were jointly indicted, arrested, and tried together as co-defendants and co-conspirators. Both men asserted alibis as their defenses at trial. Hernandez testified that he was in New York at the time of the crimes. Walls testified that he was moving furniture into a new apartment with his sister's boyfriend.

At trial, the Pancoasts identified Walls and Hernandez as the perpetrators of the crimes in their home. Mr. Shevchenko was not able to identify Walls or Hernandez, with certainty, at the trial. Justin Pancoast was also unable to identify either of the defendants at trial, stating that he "forgot what they look like."

In-Court Identifications

Walls and Hernandez both filed pretrial motions to suppress the out-of-court identifications of them that were made by the Pancoasts at the photographic line-ups. The Superior Court found that the photographic line-ups were impermissibly suggestive ³ and granted the motions to suppress. It held that the State would not be permitted to inform the jury of the results of those line-ups. However, the Superior Court held that the State could ask the Pancoasts to try to make in-court identifications of their assailants.

Walls' first argument on appeal is that the trial judge abused his discretion in permitting the Pancoasts to make in-court identifications of Walls. Furthermore, Walls asserts that the trial judge erred, as a matter of law, in refusing to permit the jury to know that he had ruled that the out-of-court identifications made by the Pancoasts were the result of an impermissibly suggestive photographic line-up and, therefore, inadmissible. Each of these arguments will be addressed separately.

Once the trial judge determines that a pretrial identification of a defendant is impermissibly suggestive, a question is always raised about whether a subsequent in-court identification of the same person is tainted and rendered unreliable. The resolution of this issue requires a determination, by the trial judge of "whether under the 'totality of the circumstances' the [in-court] identification was reliable even though the [prior] confrontation procedure was suggestive." Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). "[R]eliability is the linchpin in determining the admissibility of identification testimony...." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).

The Supreme Court has set forth several factors which should be considered by a trial judge in ruling on the issue of the reliability of an in-court identification, which follows a pretrial procedure that was impermissibly suggestive. These factors are:

the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. at 382; Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; Harris v. State, Del.Supr., 350 A.2d 768, 772 n. 7 (1975); see also, United States v. Wade, 388 U.S. 218, 241, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967). The Superior Court noted that because the Pancoasts had seen Walls at the time of the crimes ⁴ and at a gas station after the crimes occurred ⁵ but before the photographic line-ups were administered, the in-court identifications were reliable and not tainted by the photographic line-ups.

A conviction "based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly...