Submitted January 15, 2014
Case Closed April 10, 2014.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below: Superior Court of the State of Delaware in and for New Castle County. ID No. 1111021773.
Before HOLLAND, BERGER, and RIDGELY, Justices.
Henry duPont Ridgely, Justice
On this 25th day of March 2014, it appears to the Court that:
(1) Defendant-Below/Appellant Thomas Brown appeals from a jury conviction in the Superior Court of Aggravated Possession, Drug Dealing, two counts of Possession of a Firearm During the Commission of a Felony, Receiving a Stolen Firearm, Carrying a Concealed Deadly Weapon, and Conspiracy Second Degree. Brown was also found guilty following a bench trial of Possession of a Firearm or Ammunition by a Person Prohibited. Brown raises three claims on appeal. Brown contends that (1) the trial court committed plain error when it admitted evidence of Brown's prior crimes and failed sua sponte to provide the jury with a limiting instruction, (2) the trial court committed plain error when it allowed testimony about Brown's co-defendant's plea negotiations, and (3) Brown was improperly sentenced for two drug offenses and two firearm offenses in violation of a recently passed Delaware statute. The State concedes Brown's third claim. We conclude that Brown's first and second claim are without merit but that there is merit to his third claim. Accordingly, we affirm in part and reverse in part and remand for resentencing.
(2) In November 2011, Jameel Lunnon, a confidential informant, called Brown while Delaware State Police monitored the call. Lunnon agreed to assist police in order to avoid a possible life sentence following a July 2011 drug arrest. Lunnon asked to purchase nine ounces of cocaine, but Brown explained that he could only get eight ounces. Lunnon and Brown agreed to meet that evening for the exchange. Police set up surveillance at the exchange site as well as the location from which they believed Brown would obtain the cocaine.
(3) Before the exchange could occur, police stopped Brown's vehicle. Police ordered Brown and his passenger, John Dupree, out of the vehicle. After a search of the vehicle, police found 216.57 grams (roughly eight ounces) of crack cocaine; a loaded, stolen .38 caliber revolver behind the driver's seat; a loaded, stolen 9mm semi-automatic handgun under the front passenger seat; and less than a gram of crack cocaine on Dupree. Brown and Dupree were arrested and charged with two counts of drug dealing, four firearms offenses, and related offenses. Dupree later accepted a plea deal on the condition that he testify against Brown.
(4) At trial, Lunnon, Dupree, and Detective Christopher Sutton all testified for the State against Brown. After Dupree had testified, Brown called John Malik, Dupree's defense counsel, to testify to the favorable plea deal that Dupree received. The jury found Brown guilty of Aggravated Possession of Cocaine, Drug Dealing, Conspiracy Second Degree, two counts of Possession of a Firearm During the Commission of a Felony, Receiving a Stolen Firearm, and Carrying a Concealed Deadly Weapon related to the 9mm handgun. The jury found Brown not guilty of two counts of Possession of a Firearm During the Commission of a Felony, Receiving a Stolen Firearm, and Carrying a Concealed Deadly Weapon related to the .38 caliber revolver. The trial judge also found Brown guilty of Possession of a Firearm or Ammunition by a Person Prohibited following a separate bench trial. Brown was sentenced to seventeen years at Level 5 supervision reduced to probation thereafter. This appeal followed.
(5) On appeal, Brown argues that the trial court erred when it (1) admitted evidence of Brown's prior crimes and failed to sua sponte provide a limiting instruction, (2) allowed testimony about Brown's co-defendant's plea negotiations, and (3) improperly sentenced Brown for two drug offenses and two firearm offenses that should have merged. Because none of these claims were raised below, our review is limited to plain error. " 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."  The plain error standard " is limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice."  " [P]lain error is predicated upon oversight, as opposed to a tactical decision, of counsel." 
(6) Brown first argues that the Superior Court erred in allowing references to Brown's criminal history and for failing to provide a limiting jury instruction. Under Delaware law, evidence of other crimes, wrongs, or bad acts is not admissible to prove the character of a defendant to show that he acted in conformity therewith. Such evidence may be used for another purpose, " such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."  Where character ...