Wheeler v. State

• Decision Date: 07 February 2012
• Docket Number: No. 365,2011.,365
• Citation: 36 A.3d 310
• Parties: Daemont WHEELER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

36 A.3d 310

Daemont WHEELER, Defendant Below, Appellant,

v.STATE of Delaware, Plaintiff Below, Appellee.

No. 365

2011.

Supreme Court of Delaware.

Submitted: Jan. 11, 2012.Decided: Feb. 7, 2012.

Court Below—Superior Court of the State of Delaware, in and for Kent County Cr. ID. No. 0911008949.Upon appeal from the Superior Court. AFFIRMED.

Bernard J. O'Donnell, Esquire, Office of the Public Defender, Wilmington, Delaware, for appellant.

John Williams, Esquire, Department of Justice, Dover, Delaware, for appellee.

Before STEELE, Chief Justice, HOLLAND and JACOBS, Justices.

HOLLAND, Justice:

Following a jury trial in the Superior Court, the defendant-appellant, Daemont Wheeler (“Wheeler”), was convicted of Attempted Murder in the First Degree, Possession of a Firearm During the Commission of a Felony, Possession of a Firearm by a Person Prohibited, and Possession of Ammunition by a Person Prohibited. The State's motion to have Wheeler sentenced as an habitual offender was granted. He was sentenced to natural life imprisonment for Attempted Murder in the First Degree, and was sentenced to thirty-eight years of imprisonment at Level 5 for the remaining offenses.

In this direct appeal, Wheeler argues that his Sixth Amendment right to confrontation was violated when the Superior Court admitted into evidence hearsay statements by persons who did not testify at the trial. Wheeler's argument raises two distinct questions: whether the testimony presented violated the hearsay rule and whether that testimony violated the Sixth Amendment's Confrontation Clause. We have concluded that both questions must be answered in the affirmative. We have also concluded, however, that the erroneous admission of the testimonial hearsay evidence was harmless. Therefore, the judgments of the Superior Court must be affirmed.

Facts

On November 13, 2009, Herbie Davis was shot in the back and leg several times while he was in the kitchen of Tricia Scott's home near Dover. Davis lived in Wilmington but stayed at Scott's home occasionally and considered her his fiancée. Davis and Scott were planning on Davis moving into her home. Several of Tricia Scott's children, including Shani and Amber, and grandchildren, also lived with her.

Wheeler was Amber's boyfriend and frequently stayed in Amber's bedroom in the basement of Scott's home. In 2009, Amber gave birth to a baby, fathered by Wheeler. Davis testified that he and Wheeler did not get along after Davis told Wheeler that he should get a job to help support Amber, the baby, and the household.

Davis testified that shortly before the shooting on November 13, 2009, Wheeler had been downstairs with Amber. Davis and Shani were in the kitchen area. When Wheeler came upstairs, he had a disagreeable exchange with Davis before Wheeler walked out the back door. Davis then went out the front door to smoke a cigarette and returned several minutes later.

Davis testified that after he returned and was talking with Shani in the kitchen area, Wheeler came up behind him and shot him several times ¹ after saying, “I really don't like you.” After shooting Davis, Wheeler fled. Davis fell to the kitchen floor and told Shani that he could not feel his legs. Shani called 911 and applied pressure to Davis' leg. When Amber rushed upstairs to the kitchen, after hearing the gun shots, Shani told her: “Daemont just shot Herbie—Mr. Herbie.”

At 8:55 p.m. on November 13, 2009, Delaware State Police Corporal Thomas Lamon was dispatched to investigate a report that someone had been shot. Corporal Lamon was the first police officer to arrive at Trisha Scott's home. When Corporal Lamon entered the residence, he saw Davis on the kitchen floor surrounded by blood. Shani was kneeling over Davis. Corporal Lamon testified that Davis and Shani were the only people in the kitchen, and that Shani “was clearly upset, shaken.” Davis told Corporal Lamon, “Daemont shot me.”

Delaware State Police Detective Mark Ryde was the chief investigating officer. When he arrived at the Scott residence, Detective Ryde conducted separate recorded interviews of Trisha Scott's two daughters, Shani and Amber. Those interviews were conducted in Detective Ryde's police car.

After the on-scene investigation concluded, Detective Ryde attempted to locate the suspect, Wheeler. After Detective Ryde was unable to locate Wheeler at two addresses, he prepared an arrest warrant. That arrest warrant was placed in the National Crime Index Center database.

On November 23, 2009, Detective Ryde received information that Wheeler might be at a certain apartment in Harrington, Delaware. The apartment house was owned by Mary Zachery. Detective Ryde obtained a search warrant. Inside the unoccupied apartment, Detective Ryde found a document and prescription medication with Wheeler's name. Later, Detective Ryde conducted an unrecorded interview of Mary Zachery at State Police Troop No. 3.

In January 2010, in an effort to locate Wheeler, Detective Ryde contacted the United States Marshall's Task Force. Wheeler was apprehended on January 27, 2010, in Wayne County, Michigan. After waiving an extradition hearing, Wheeler was returned to Delaware on February 17, 2010.

At trial, in April 2011, Wheeler elected not to testify, and the defense rested without presenting any witnesses.

Victim's Eyewitness Identification

The first witness at Wheeler's trial was the shooting victim, Davis. During his direct examination, Davis identified Wheeler for the jury as the man who came from behind and shot him multiple times while Davis was standing in the kitchen of Tricia Scott's home talking to Shani. Davis turned around after he was shot. He testified: “I seen his face. I seen the gun,” which was described as a silver semi-automatic. Davis also testified that he recognized Wheeler's voice and that before the shooting, Davis heard Wheeler shout “I really don't like you.” Davis repeated his identification of Wheeler as the shooter at several other points during his direct testimony. For example, Davis testified that he had immediately identified Davis as the shooter to Trooper Lamon when the trooper arrived at the scene and found Davis wounded on the kitchen floor. On cross- examination, Davis added: “I knew who shot me,” and “I seen him shoot me....”

Victim Relates Excited Utterance

Davis also testified that after he was shot, Amber Scott immediately came upstairs to the kitchen from the basement. According to Davis, Shani Scott told Amber that “Daemont just shot Herbie—Mr. Herbie.” Defense counsel raised a hearsay objection to Davis relating what eyewitness Shani Scott told her sister, Amber. Herbie Davis also testified without objection that Shani Scott told the troopers who first arrived at the scene that Wheeler had shot Davis. Those statements are not at issue in this appeal. The trial judge overruled the objection stating: “Well, I think that would qualify as a present sense reaction to what the scene was at the time.” When the prosecutor added that Shani's statement to her sister immediately after the shooting also qualified for admission as an excited utterance, the trial judge agreed.

The State argues that the trial judge did not abuse his discretion in overruling the defense trial hearsay objection and permitting the shooting victim, Davis, to state what the second eyewitness, Shani Scott, told Amber had occurred. We agree. Present sense impression and excited utterance are both well recognized exceptions to the general evidentiary rule against hearsay.²

A witness's statement made during or immediately after an event qualifies as a present sense impression that is admissible at trial even though the declarant may be unavailable for cross-examination.³ The declarant, Shani Scott, was physically present in her mother's kitchen when Wheeler shot Davis. Apparently hearing the gunshots, Amber Scott rushed up from the basement after Wheeler fled the house. Shani's statement to Amber identifying Wheeler as the shooter was a personal perception by an eyewitness describing the event and made immediately after the shooting.⁴

An “excited utterance” is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” ⁵ In order to qualify as an excited utterance: the excitement of the declarant must have been precipitated by an event; the statement being offered as evidence must have been made during the time period while the excitement of the event was continuing; and the statement must be related to the startling event.⁶

Shani's statement to Amber satisfied the three requirements for an excited utterance: the shooting of Davis by Wheeler precipitated Shani's excitement; the statement identifying the shooter was made during the time the excitement of the event was continuing; and Shani's statement was related to the startling event.⁷ An excited utterance is deemed to be reliable because the declarant is excited by the startling event and does not have an opportunity to fabricate a response.⁸

Under the circumstances of the shooting in her mother's kitchen, Shani Scott's statement to her sister Amber that “Daemont just shot Herbie—Mr. Herbie” was properly admissible as a present sense impression under Delaware Uniform Rule of Evidence (“D.R.E.”) 803(1) and also as an excited utterance under D.R.E. 803(2). There was no abuse of discretion in the trial judge's admission of Shani's statement to Amber as related by the victim, Davis.

Detective Ryde's Testimony

In support of its case against Wheeler, the State introduced into evidence the substance of out-of-court statements by three witnesses who were unavailable to testify at trial: Shani Scott, Amber Scott, and Mary Zachery. Shani Scott was with Davis when the shooting occurred and Amber Scott was downstairs in the basement. Mary Zachery, Wheeler's landlord at a rooming house, was not present at the crime scene.

Detective Ryde took statements from...