White v. State

• Decision Date: 10 December 2020
• Docket Number: No. 467, 2019,467, 2019
• Citation: 243 A.3d 381
• Parties: Dwayne WHITE, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

243 A.3d 381

Dwayne WHITE, Defendant Below, Appellant,

v.STATE of Delaware, Plaintiff Below, Appellee.

No. 467, 2019

Supreme Court of Delaware.

Submitted: September 30, 2020

Decided: December 10, 2020

Michael W. Modica, Esquire (argued), Wilmington, Delaware for Appellant.

Andrew J. Vella, Esquire (argued), Delaware Department of Justice, Wilmington, Delaware for Appellee.

Before SEITZ, Chief Justice; VALIHURA, and MONTGOMERY-REEVES, Justices.

VALIHURA, Justice:

Dwayne White faces a lengthy sentence of incarceration at Level V followed by various levels of probation after a jury convicted him of twenty-one felony charges. On appeal, White challenges his conviction and sentence on a number of grounds that were not raised in the proceedings below. In his first two claims of error, White contends that several of the counts of which he was convicted and separately sentenced merge under the Double Jeopardy Clauses of the Delaware and United States Constitutions. Third, White contends the trial court committed plain error by placing the accomplice liability instructions at the end of the instructions for the felony conspiracy offenses. Fourth, White alleges that his conviction for conspiracy to commit Drug Dealing Cocaine is invalid because it relies on an indictment containing a numbering error. Fifth, White contends the trial court erred by failing to bar the State from eliciting testimony from White's attorney regarding the scope of the attorney's representation of members of the criminal enterprise. Finally, White contends that the trial court abused its discretion by failing to specify adequately its reasons for imposing a sentence in excess of the SENTAC guidelines and by relying upon certain factual predicates which he challenges on various grounds. As explained below, we find no plain error and AFFIRM the judgment below.

I. FACTUAL AND PROCEDURAL BACKGROUND

We provide the following background facts consistent with the jury verdict and based upon the record before us. White was tried with two other defendants, Damon Anderson and Eric Lloyd.¹ Of the three, White was the only one charged with Attempted Murder. Other than disputing involvement in or connection with any attempted murder, Dwayne White conceded the truth of most of the State's accusations against him. He concedes his involvement in a complex narcotics enterprise. White was a key figure and eventually, the leader of it.² From 2015 until 2019, the members of that enterprise sold large amounts of cocaine and heroin, and conducted sophisticated business operations, including maintaining multiple limited liability companies ("LLCs"), concealing activity by assigning property ownership to others, and maintaining detailed financial records.³

Certain members of the enterprise, the so-called "Big Screen Boys," feuded with one of their former affiliates, Markevis Stanford.⁴ Believing him to be a "rat," the Big Screen Boys produced and disseminated on the internet rap music videos insulting Stanford, and a pornographic tape of some of the members with Stanford's girlfriend, Keyonna Perkins.⁵ Their feud escalated to violence, including reprisal robberies, and eventually a shooting in the Riverside housing projects.⁶ Certain other members of the enterprise called themselves "The Four Horsemen of Riverside." Those members, Dwayne White, his brother Rasheed White, Teres Tinnin, and Michael Pritchett, were high level drug dealers in the City of Wilmington.⁷

On June 6, 2017, Markevis Stanford was targeted in two shootings, one in Newark and one later in Wilmington.⁸ Stanford avoided being hit by the gunfire in both incidents. But, in the second shooting, a stray bullet struck six-year-old innocent bystander Jashown Banner in the head causing him to suffer paralysis and brain damage.⁹ The shooting left the child confined to a ventilator and able to move only his eyes. Banner was sitting in his mother's car with his younger sister, mother, and grandmother while Stanford hid behind it. In the third incident on that same day, assailants kidnapped and murdered Perkins.¹⁰

During the State's investigation, it discovered a recorded phone call between Stanford and an imprisoned associate during which Stanford identified Michael Pritchett as a shooter in both June 6 attacks on him. Police arrested Pritchett.¹¹ In response, White offered Jashown Banner's family members a $20,000 bribe to produce a sworn statement denying Pritchett's involvement and to deliver it to attorney Joseph Benson. At trial, White stipulated to the fact that he attempted to bribe Banner's family.¹²

Investigating with FBI assistance, the State obtained a wiretap on White's cell phone. This wiretap revealed the existence of the enterprise to law enforcement, and produced a significant amount of information about the scope of its operations.¹³ It also recorded White communicating with imprisoned associates, seeking to have Stanford intimidated or killed.¹⁴

In early September 2017, police executed a search warrant on White's home.¹⁵ They found paraphernalia associated with the drug trade, large amounts of cash, cellular phones, and business records relating to the enterprise's financial dealings and drug transactions, and some of White's personal tax records.¹⁶ Some of these items smelled of or field-tested positive for the presence of cocaine. Police also discovered that White's girlfriend obtained an apartment at the Whitney Apartments in Claymont for White to use. White paid for it with cash and money orders. Police searched this apartment and located cocaine residue, scales, pots, bags and other items used in the drug operation.¹⁷

Police arrested White on October 25, 2017.¹⁸ On November 13, 2017, a New Castle County grand jury handed down a thirty-six count indictment against White and his codefendants.¹⁹ The indictment spanned a period from January 2015 to January 2019. The State brought twenty-four counts to trial.²⁰

White proceeded to a joint jury trial with co-defendants Eric Lloyd and Damon Anderson beginning on June 3, 2019. Among the evidence presented, three associates of the enterprise (William Wisher, Tyrone Roane and Dontae Sykes) testified as to their direct involvement with Lloyd and White, among others, and the crimes that were committed. They cooperated after being charged with criminal offenses.

Roane testified about selling drugs for the enterprise and about his interactions with White in such activity.²¹ Roane testified that members of the enterprise, including White, were sometimes able to access and review discovery in their co-defendants’ criminal cases through use of an attorney, Joseph Benson, who represented some of its members.²² White called Roane's wife suspecting that Roane was cooperating with the police. White obtained a sealed copy of Roane's plea agreement.²³ White discussed the agreement on prison calls with Darryl Kelley and Tawayne Powell, and White said he wanted them to spread the word.²⁴ After Roane pled guilty, a copy of his plea agreement was posted on social media along with a wedding picture of Roane and his wife.²⁵ The obvious purpose for publishing the sealed agreement was to intimidate Roane. Roane also testified about the feud with Markevis Stanford and how a bounty on Stanford began and was increased and how the hostility escalated.²⁶ He discussed White's involvement in trying to bribe Jashown Banner's family in order to help Pritchett. Roane was present when White hosted the party at the 8th & Union restaurant in 2017 as a farewell to Lloyd, who was about to serve a federal prison sentence for violation of probation.²⁷

Wisher stated that Lloyd was head of the enterprise and that he was involved in dealing cocaine for Lloyd. Wisher maintained a consignment arrangement with Lloyd whereby Lloyd would provide Wisher with powder cocaine for an agreed price. Wisher would keep as profit amounts he received above the agreed price.²⁸ Wisher also described the meeting at the 8th & Union restaurant, when the operation was transferred from Lloyd to White. He stated that he then began selling heroin for White.²⁹

Sykes testified as a State's witness and discussed the drug operation. According to Sykes, Lloyd was at the top of the cocaine trade in Wilmington and White, backed by Lloyd, was at the top of the heroin trade.³⁰ When Lloyd went to federal prison in 2017, Sykes began dealing with White directly.³¹ Both Lloyd and White, in their cross-examinations of Sykes and Wisher, attempted to discredit their testimony as cooperating witnesses for the State.³² Although the offenses for which White was convicted included two drug dealing charges, Lloyd was found Not Guilty of Drug Dealing Cocaine, but Guilty of two drug conspiracy charges among other charges.³³

Sykes also explained their use of LLCs to hide physical assets and money.³⁴ He testified about the investment properties obtained to launder money and about the transfer of leadership at the 8th & Union restaurant. He was familiar with the feud with Markevis Stanford. He testified in detail about the bounty and White's involvement in increasing the bounty on Stanford's life.³⁵ He was aware of White's plan to bribe the family of Jashown Banner.

Detective Barnes and Special Agent Haney provided details of the money laundering operation. This included gambling at casinos, sports betting, use of money orders, purchase of high-end items, and the purchase of real estate. The State presented evidence of White's gambling activity totaling $1.3 million from 2015 to 2017. No taxes were paid on any of the revenue generated by the criminal activity detailed by the State.³⁶

The State presented testimony from Michelle Hoffman, a forensic accountant. She focused mainly on the activities of White and Lloyd involving amounts in excess of $750,000.00. She also described facts surrounding certain of the limited liability companies connected to Lloyd, White's wife, and White, among others. She described a property in Elkton, Maryland that...