Submitted: November 12, 2013
Honorable Andrea L. Rocanelli, J.
Defendant Tze Poong Liu has filed a Motion for a New Trial contending that the interest of justice militates in favor of a new trial. Defendant Liu was charged with several counts of murder, along with co-defendant Vicki Chao. The victims were the wife, daughter, and mother of William Chen. Liu was charged with the intentional murder of the three victims, as well as felony murder of the three victims whose deaths occurred from an intentionally set fire at Chen's home in Claymont, Delaware on March 9, 1988. Liu was also charged with the attempted murder of Chen, as well as arson, burglary in the first degree and conspiracy first degree and second degree.
Chao's trial took place first, in 1989. At Chao's trial, William Chen testified in the State's case-in-chief that his intimate relationship with Chao was limited to one sexual encounter after Chen married his wife. Chao was convicted on August 14, 1989 of three counts of intentional murder and three counts of felony murder, among other charges.
Liu's trial took place almost two years later, from March 11, 1991 to May 28, 1991. William Chen also testified as a witness as part of the State's case-in-chief. However, as discussed below, Chen's testimony changed from the testimony he offered at Chao's trial to the testimony he offered at Liu's trial. Ultimately, Liu was convicted of three counts of murder, three counts of felony murder, and arson, attempted murder, conspiracy and burglary.
Liu's trial began on March 11, 1991. After the second day of trial on March 12, 1991, the State met with Chen to prepare for Chen's testimony the following week. The State learned that Chen intended to testify differently at Liu's trial than he had testified at Chao's trial. Specifically, Chen intended to testify that he had sexual relations with Chao on more than one occasion since Chen's marriage. The next day of trial was March 18, 1991. Chen was sworn as a witness and began testifying.
At some point on or prior to Tuesday, March 19, 1991, the State disclosed to defense counsel that Chen's testimony would be different than it had been at Chao's trial. The record does not reveal the date on which the State disclosed to Liu's counsel that Chen would testify differently than he had previously testified about Chen's relationship with Chao. Nevertheless, on March 19, before Chen testified about his relationship with Chao after Chen's wedding, the State notified the Court that the State had learned about the expected changed testimony and had revealed the information to the defense. Chen was still on the witness stand when the State notified the Court on the record, and Chen had not yet testified inconsistently with his prior testimony.
Defense counsel for Liu did not seek a continuance and did not raise any concerns that Chen's changed testimony would alter Liu's trial strategy or disrupt his defense.
Before the direct examination of Chen continued, the Court recessed so that a lawyer for Chen could be secured. Once a lawyer was present to represent Chen's interests, the direct examination continued and Chen testified that his intimate relationship with Chao had continued after Chen's marriage. Chen testified that he had sexual relations with Chao on more than one occasion since Chen's marriage. Chen acknowledged that Chen was testifying on this subject contrary to his prior testimony at Chao's trial when Chen said he only had sex with Chao once after Chen was married.
Liu seeks a new trial. As grounds, Liu argues that the late disclosure by the State of witness Chen's intention to testify differently at Liu's trial than Chen had testified at Chao's trial should have prompted the Court to continue Liu's trial and allow Liu additional time to investigate. The State responds that a new trial is not mandated in the interest of justice because Liu did not request a continuance at the time of the disclosure; Liu had full opportunity to question Chen on the stand; and Liu has not articulated how his trial strategy would have changed if the trial was continued. Indeed, according to the State, Chen's conflicting testimony was actually consistent with Liu's trial strategy that Chen's testimony should be disregarded by the jury as not credible.
In consideration of Liu's Motion for New Trial, THE COURT FINDS AS FOLLOWS:
1. When testifying as a witness during Chao's trial in 1989, Chen testified that he had only one sexual encounter with Chao after his marriage.
2. Liu's trial began on Monday, March 11, 1991.
3. On or about Tuesday, March 12, 1991, after the trial had recessed for the day, the State met with Chen to prepare his testimony for the next trial day. The State became aware that Chen would testify that Chen had more ...