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03/19/97 JABBAR BURKE v. STATE DELAWARE

March 19, 1997

JABBAR BURKE, DEFENDANT BELOW, APPELLANT,
v.
STATE OF DELAWARE, PLAINTIFF BELOW, APPELLEE.



Court Below: Family Court of the State of Delaware, in and for Sussex County, File No. JS95-0845.

Released for Publication April 4, 1997.

Before Holland, Hartnett, and Berger, Justices.

The opinion of the court was delivered by: Hartnett

ORDER

This 19th day of March, 1997, upon consideration of the briefs and arguments of the parties, it appears to the Court that:

1. Jabbar Burke ("Burke"), defendant below, appellant in this direct appeal, challenges his conviction of the crime of manslaughter following a Family Court bench trial. We find no reversible error and, therefore, AFFIRM.

2. Burke claims that the Family Court erred in three instances during the trial: 1) in admitting as evidence out of court statements of a child witness without there being a proper foundation under 11 Del.C. § 3507; 2) in not granting a post-trial evidentiary hearing or new trial because Burke, after the trial, learned that a state witness, a police officer, was alleged to have committed acts of dishonesty unrelated to the charges against Burke; and 3) in admitting evidence of Burke's prior bad acts when Burke did not testify at trial.

3. According to the testimony at trial, on July 15, 1995, while Burke was baby-sitting three year old Ricky Blake and his five year old sister Latasha, Ricky spit food and urinated in Burke's car. After Ricky urinated, Burke hit Ricky in the stomach. Later that afternoon, Burke took Ricky to the hospital, where Ricky died. The medical evidence showed that the cause of Ricky's death was blunt force trauma to the abdomen caused less than twelve hours prior to death.

4. Burke first objects to the admission at trial of three videotaped out of court statements by Latasha because they were not offered as evidence until after she had completed her testimony. Burke raises this objection for the first time in this appeal. The standard of review, therefore, is whether the trial court committed plain error. See Smith v. State, Del. Supr., 669 A.2d 1, 8 (1995); Tucker v. State, Del. Supr., 564 A.2d 1110, 1119-20 (1989). "Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process." Wainwright v. State, Del. Supr., 504 A.2d 1096, 1100 (1986).

5. Our decision in Smith v. State, Del. Supr., 669 A.2d 1 (1995), set forth the requirements as to when a pretrial statement of a witness present and available for cross examination may be offered into evidence under 11 Del.C. § 3507. The timing of the admission of Latasha's videotaped statements was contrary to the rule that a prior taped statement of a declarant be offered into evidence before the Conclusion of the direct examination of the declarant. Id. at 8. That rule ensures that a defendant will have the opportunity to cross-examine the declarant as to the prior statement. Id.

6. In Smith, however, this Court concluded that the improper introduction of the taped statement did not amount to plain error because the State had adduced sufficient evidence even without the taped statements. Id. at 8. We likewise find that in the present case, the late introduction of the taped statement did not amount to plain error. Burke was not deprived of a fair trial. He was not unfairly surprised by the contents of Latasha's three videotaped statements because he had stipulated to their admission as a joint exhibit prior to the trial. The State also presented six witnesses who testified that Latasha had made statements to them that Burke had struck Ricky. Even without that testimony, the expert medical evidence that Ricky's injuries occurred while he was with Burke was sufficient to have permitted the trial court to have found Burke guilty.

7. Next Burke complains that the State never disclosed to him that the police officer who took his statement was being investigated during the time of Burke's trial for official misconduct in falsely reporting an incident not related to Burke. The State must disclose evidence if: 1) the information is requested by the accused and withheld by the prosecution, 2) the information is favorable to the accused's case, and 3) the evidence is material to either the determination of guilt or the appropriate sentence. Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Brady applies to impeachment evidence as well as exculpatory evidence. See Michael v. State, Del. Supr., 529 A.2d 752, 755, 756 (1987). See also United States v. Bagley, 473 U.S. 667, 675, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). There is, however, no obligation on the part of the government to disclose purely speculative and preliminary information. United States v. Agurs, 427 U.S. 97, 109 & n. 16, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976). The post-trial arrest and indictment of the police officer for conduct not related to Burke were not relevant to the charges against Burke. United States v. Veras, 7th Cir., 51 F.3d 1365, 1375 (1995). The police officer did not have any incentive to give untruthful testimony against Burke and her testimony at Burke's trial was largely confirmed by other witnesses. No prejudice to Burke, therefore, occurred.

8. Finally, Burke claims that statements of witnesses indicating that he had previously hit Ricky or Latasha violated D.R.E. 404(b), which forbids use of uncharged misconduct to infer bad character when the defendant does not testify. See Getz v. State, Del. Supr., 538 A.2d 726, 730 (1988). Because Burke did not object to the statements at trial, however, our standard of review is whether plain error occurred.

9. The trial was a bench trial. "" Judge, sitting as a trier of fact, is presumed to have made his verdict only on the admissible evidence before him and to have disregarded that which is inadmissible." United States v. Cardenas, 5th Cir., 9 F.3d 1139, 1156 (1993). In her decision, the Family Court Judge focused on the events that occurred within the twelve hours preceding Ricky's death, not on events occurring weeks before. Because there is ...


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