March 23, 1994
Eugene T. REED, Sr., Defendant Below, Appellant,
STATE of Delaware, Plaintiff Below, Appellee.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Submitted: Feb. 1, 1994.
Court Below: Superior Court of the State of Delaware, in and for Sussex County; Cr.A. No. IN90-07-0930.
Superior Court, Sussex County, 1992 WL 179234.
Before VEASEY, Chief Justice, and WALSH and HOLLAND, Justices.
This 23rd day of March 1994, it appears to the Court that:
(1) Appellant Eugene T. Reed, Sr. ("Reed"), a former Democratic County Chairman for New Castle County, was convicted of Criminal Solicitation in the Second Degree after a jury trial in the Superior Court. Reed was also charged with Attempted Bribery, but the jury could not reach a verdict on that count.
(2) At Reed's trial, Ronald Aiello ("Aiello"), who had previously pleaded guilty to extortion, cooperated with federal and state authorities, and testified as a state's witness. He testified that, at a fund raising event, Reed had given him an envelope containing $5,000 and had indicated that it was from Frank Acierno, a real estate developer who was trying to obtain County Council approval to rezone certain property owned by Acierno. Aiello also testified that he tried to return the money to Reed at a subsequent meeting, but Reed encouraged Aiello to keep it. This meeting was secretly tape-recorded by Aiello, and the tape was admitted into evidence at Reed's trial.
(3) Reed appeals from his conviction and the Superior Court's denial of his motion for a new trial. Reed asserts three grounds for overturning his conviction: (a) the Superior Court improperly excluded three witnesses who were to testify for the purpose of impeaching Aiello; (b) there was insufficient evidence to support a guilty verdict; and (c) the Superior Court's instructions regarding accomplice liability were defective.
(4) Reed called 11 witnesses at trial to attack Aiello's credibility. These witnesses testified regarding various earlier events, including alleged incidents of dishonesty involving Aiello and purportedly inconsistent statements. Reed also tried to introduce testimony from three additional witnesses regarding other prior collateral incidents bearing on Aiello's credibility. The Superior Court ruled that the testimony should be excluded because it was excessively collateral to the matters at issue and risked jury confusion. Moreover, the trial court found that the testimony of one of the witnesses, Aiello's attorney in his extortion case, was privileged and cumulative. Reed contends that the Superior Court violated Delaware Rule of Evidence ("D.R.E.") 402 and the Confrontation and Due Process Clauses of the United States Constitution by so ruling.
(5) We hold that the Superior Court properly excluded the testimony at issue. The testimony of two of the witnesses concerned specific incidents, unrelated to Reed, that allegedly contradicted Aiello's testimony regarding his motivation to take bribes. Reed argues that the testimony could be introduced under D.R.E. 402 because that Rule provides that all relevant evidence is admissible and the credibility of a witness is always relevant. This argument ignores the fact that D.R.E. 608(b), which specifically addresses the use of character evidence to attack credibility, gives the trial court discretion to limit such evidence "to avoid 'mini-trials' into the 'bad acts' of a witness which would require the use of extrinsic evidence to prove such acts." Weber v. State, Del.Supr., 457 A.2d 674, 680 (1983). The Superior Court properly exercised its discretion under D.R.E. 608(b) in this case to exclude the collateral evidence being proffered by Reed.
(6) Reed's constitutional claims are also without merit. Reed's right to a fair trial under the Due Process Clause of the Fifth Amendment was not abridged simply because the Superior Court excluded the testimony of three out of the fourteen witnesses called by Reed to attack Aiello's credibility. See U.S. v. Hasting, 461 U.S. 499, 508-09 (1983) (recognizing that due process guarantees a fair trial, not a perfect trial). Similarly, Reed's right to cross-examine witnesses under the Confrontation Clause of the Sixth Amendment was not infringed. "The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (emphasis in original) (quoting 5 J. Wigmore, Evidence § 1395, at 123 (3d ed. 1940)). Reed was given ample opportunity to cross-examine Aiello and was provided substantial latitude to attack Aiello's credibility, as evidenced by the 11 impeachment witnesses who testified on Reed's behalf. The exclusion of three additional witnesses, two of whom were to testify about completely collateral incidents, does not rise to a deprivation of Reed's constitutional right of confrontation.
(7) Reed's second ground for overturning his conviction is that there was insufficient evidence to support a verdict finding him guilty of Criminal Solicitation. In reviewing such a claim, we must consider whether the evidence, viewed in the light most favorable to the prosecution, would permit any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. E.g. Shipley v. State, Del.Supr., 570 A.2d 1159, 1170 (1990). Our review of the record in this case shows sufficient evidence to meet this standard, including the transcript of the tape-recorded conversation between Aiello and Reed, as well as the testimony of Aiello, Acierno, and other witnesses for the prosecution.
(8) Reed also contends that it is impossible as a matter of law for him to be convicted of soliciting a criminal act that has already been accomplished. The basis of Reed's conviction for criminal solicitation, however, was his attempt to persuade Aiello to keep the $5,000 after Aiello tried to return it. This conduct is separate from the original delivery of the money, and constitutes a distinct and independent criminal act.
(9) Reed's final argument on appeal is that the instructions given by the Superior Court to the jury regarding accomplice liability constituted reversible error. Our review of the instructions reveals no significant error, either as to their substance or the manner in which they were given. See Probst v. State, Del.Supr., 547 A.2d 114, 199-20 (1988). Moreover, the instructions relating to accomplice liability pertained to the charge of Attempted Bribery, for which Reed was not convicted. Therefore, he could not have been prejudiced by the instructions even assuming arguendo that they were erroneous in some way (which has not been demonstrated).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is,