Submitted: January 31, 2014
Upon Defendant's Motion to Be Transferred Back to the Family Court of Delaware. Denied.
Vincent H. Vickers III, Stumpf Vickers & Sandy Attorney for Defendant
Melanie C. Withers, Esq. and Casey L. Ewart, Esq., Delaware Department of Justice, Attorneys for the State
RICHARD F. STOKES, JUDGE
Defendant Jackeline Perez ("Perez"), who was 15-years-old at the time of the charged crimes, will be tried as an adult in this Court. Her application to transfer her case from this Court to the Family Court pursuant to 10 Del.C. § 1011(b) is DENIED.
In April 2013, Perez was charged with Kidnapping in the First Degree, a class B felony, Carjacking in the First Degree, a class B felony, Robbery in the First Degree, a class B felony, and three counts of Conspiracy in the Second Degree, class G felonies. These charges stemmed from Perez's alleged involvement in a criminal episode inflicted by Perez and her co-defendants upon Margaret Smith ("Mrs. Smith"), who, at the time of her encounter with the defendants, was 89-years-old.
Facts and Circumstances Hearing
A Facts and Circumstances hearing was held in this Court on July 18, 2013. The evidence presented pertained to the involvement of Defendants Rondaiges Harper ("Harper"),  Phillip Brewer ("Brewer"),  Junia McDonald ("McDonald"),  and Perez in the charged crimes. Harper, Perez, and McDonald were all present at this hearing. The following facts were taken from that hearing and are common to all three defendants.
Margaret Smith ("Mrs. Smith") is an 89-year-old widow living in her own home in Milford, Delaware. At the fact hearing, Mrs. Smith gave a full rendition of the criminal incident. Although she was sometimes forgetful or confused about incidentals, she provided a consistent version of the material facts.
On March 18, 2013, at about 2:00 p.m., Mrs. Smith left her home to get an ice cream cone and buy a gift for her sister. Mrs. Smith carried some money in her purse, and a larger amount rolled up and pinned to the strap of her brasier. As she sat in her 2001 tan Buick Le Sabre at a convenience store called the Chicken Man, two female juveniles, later identified as Perez and McDonald, approached her car. They tapped on the driver's side window and asked Mrs. Smith if she would take them home. At the fact hearing, Mrs. Smith referred to the girls as "teenagers, " stating that one was white and one was black, and that one was shorter and stockier than the other. Mrs. Smith did not observe any other physical traits.
At first Mrs. Smith hesitated, but then agreed to give the girls a ride home. One juvenile got in the front passenger seat, and the other in the back. Mrs. Smith assumed that the juveniles lived in Milford; but they directed her to a residence farther away. Upon arriving at that residence, Mrs. Smith was told that the mother was not home and was asked to go to a second residence. Once there, Mrs. Smith was told that the aunt was not home.
The juveniles directed Mrs. Smith to a third residence where they asked for her keys. Mrs. Smith adamantly refused. Both juveniles then grabbed her while she struggled to remain in the car. Mrs. Smith was yanked out of the car, resisting until the three were at the rear of the Buick. The shorter juvenile wrestled the keys from Mrs. Smith and the trunk door was opened. Mrs. Smith was then shoved inside the trunk, and the trunk door slammed. The juveniles then got back in the car and, with the shorter juvenile driving, took off at a fast pace. Mrs. Smith hollered and knocked on the back of the trunk but received no response. Perhaps this could have been, in part, because the car's radio was playing at full volume. According to Mrs. Smith, while in the trunk, she received no food or water and was given no bathroom breaks. She also was not given the medication she took for high blood pressure or arthritis, which she carried with her.
During this episode, the two juveniles also took $500 in cash from Mrs. Smith. They went to the Seaford Walmart to buy clothes and may have given some of the money to two male juveniles to buy a new battery for the car. That evening, the juveniles used stolen money to book a room at the Days Inn in Seaford, Delaware. Mrs. Smith spent the night in the trunk of her car. In the morning, she was taken to a cemetery and dumped out, along with her cane and a black Ace Hardware bag of prescription medications.
Having wet herself in the trunk, Mrs. Smith apparently removed her pants and left them on the ground. She crawled around the cemetery looking for a road. The surface of the cemetery being part dirt and part grass, Mrs. Smith scraped her knees, but attained no other observable injuries. The cold temperatures caused numbness in her hands and feet, which is not yet resolved.
At approximately 9:00 p.m. on March 19, 2013, Trooper John Wilson ("Trooper Wilson"), a member of the Delaware State Police Department ("DSPD"), received a missing person call. A woman who identified herself as Sabrina Carol ("Ms. Carol") said that she had not seen her elderly aunt, Margaret Smith, since 2:00 p.m. the previous day. Ms. Carol went to her aunt's house, but neither she nor her purse were there. The family was concerned because Mrs. Smith showed early signs of either Alzheimer's Disease or some form of dementia. The previous day, a neighbor saw Mrs. Smith putting things in her car at approximately 11:00 a.m., and drive away about an hour later. Mrs. Smith's sister spoke to her on the phone at about 2:00 p.m. the previous day. Mrs. Smith was thought to be driving her tan 2001 Buick Le Sabre. Ms. Carol stated that her aunt often went to Milford to shop and to Rehoboth Beach to visit her sister.
Trooper Wilson entered Mrs. Smith's identification information into the national data base for missing persons and issued a Gold Alert which lists missing persons with mental conditions. He also filed a DSPD report.
On March 20, 2013, Corp. James Gooch, Jr. ("Corp. Gooch") received a call from a woman named Betty Edwards ("Ms. Edwards"). Ms. Edwards said that when she came to visit her son's tombstone at Mount Calvary Methodist Cemetery ("the cemetary") east of Seaford, she found a half-clothed, apparently disoriented elderly woman crawling on the ground. Corp. Gooch stated that the cemetery is not visible from King Road and is surrounded by trees. When Corp. Gooch arrived at the cemetery, Ms. Edwards told him that the elderly woman had initially tried to run from her, but Ms. Edwards reached her and convinced her to sit on one of the tombstones. Mrs. Smith was wearing brown spandex shorts and a coat, but no pants or shoes. Her hands were dirty and her knees were scratched.
Mrs. Smith initially told Corp. Gooch that she had walked from her home to the cemetery, but upon questioning, said that two girls in Milford asked her for a ride, and then took her money and keys and put her in the trunk of her car. She remained in the trunk for two days, without food, water, or medication. Mrs. Smith was also forced to urinate on herself because her requests to use a bathroom were ignored. When she was left in the cemetery she was not familiar with her surroundings. Hence, she got on her hands and knees and crawled around looking for an opening to get to a road. The night was cold. Ms. Edwards told Corp. Gooch that Mrs. Smith had money rolled up and pinned to the strap of her brasier.
Corp. Gooch drove Mrs. Smith to Nanticoke Hospital where Ms. Carol met them. Mrs. Smith was able to give her name, date of birth, and age, although she was still somewhat confused. When Corp. Gooch ran her information in the police system, he found the Gold Alert with a photograph and a reference to possibly being armed. Corp. Gooch gave Mrs. Smith a light pat down and found no weapon. A nurse, having found money pinned to the strap of Mrs. Smith's brasier, put the money in a hospital safe. Mrs. Smith then told Corp. Gooch the rest of the details of the incident. Mrs. Smith was treated and then released to the care of Ms. Carol.
Corp. Gooch returned to the cemetery to look for Mrs. Smith's car because Mrs. Smith told him that at one point, the two juveniles drove her car up to the top of a hill and let it slide down so that she would meet her death. Corp. Gooch also hoped to find the wig that Mrs. Smith apparently wore in the Gold Alert photograph. Neither the car nor the wig was found. Corp. Gooch, however, found what looked like the tracks of someone crawling in the sand over a recent grave site. He also saw tire tracks indicating that a vehicle had made a U-turn in an area of soft sand. Even with the aid of a DSPD helicopter, the car was not found. Later that day, Corp. Gooch removed Mrs. Smith's name, but not her missing car, from the Gold Alert.
At approximately 7:00 p.m. on March 20, 2013, Trooper Patrick Schlimer ("Trooper Schlimer") of the DSPD was sitting at one of his routine patrol sites at the intersection of Coverdale Road and Seashore Highway when a tan Buick with five passengers passed him. Trooper Schlimer ran the car's tag number and found a flag to stop the vehicle. He then followed the car, stopping it on Chapel Chapman's Road. None of the vehicle's occupants had any form of identification. Two of the three female occupants each stated that the vehicle belonged to the other's grandmother. The occupants were identified as McDonald in the driver's seat, Brewer in the front passenger seat, Harper in the rear left passenger seat, Perez in the rear right passenger seat, and Deniaya Smith ("Deniaya") in the center rear passenger seat.
Trooper Schlimer learned from police dispatch that the car had been involved in a carjacking. When his back-up arrived, the officers took the individuals and the car to Troop 4 in Georgetown, Delaware. Trooper Schlimer had no further discussion with any of the suspects.
After a search warrant for the car was obtained, Det. Michael Maher ("Det. Maher") from the Evidence Detection Unit photographed the vehicle as well as the contents of the trunk. Among other things, the trunk contained seven bags of clothing, an Ipod lamp, three jackets, five cans of unopened ginger ale, and a so-called egg crate mattress. These items were left in the trunk, which measured 3 feet by 9 inches from front to back, 5 feet wide but 3 feet by 6 inches in the area where the tires were located, and 1 foot by 6 inches high.
On March 29, 2012, Det. Maher and Det. Robert Truitt, Jr. ("Det. Truitt"), the chief investigating officer, went to the cemetery. A residence is located on each side of King Road at the turn onto Calvary Road; but there is no signpost indicating the presence of the cemetery. The distance from King Road to the cemetery at the end of Calvary Road is 133 yards. The area is heavily wooded. Trash and debris are found all along the unpaved road, which is in a wretched condition. A chain link gate leads into the cemetery; and a chain link fence runs its perimeter. The area is surrounded by large trees, allowing for little light.
Det. Maher and Det. Truitt observed the tracks seen by Corp. Gooch indicating that someone had crawled over the sand. They did not observe shoe prints. To the right of the entrance, the detectives found a black metal cane, a black bag from Ace Hardware containing prescriptions, and a pair of urine-soaked blue jeans on the ground near the fence.
On March 20, 2012, after being released from the hosptial, Mrs. Smith and Ms. Carol went to the authorities to report her stolen car. Mrs. Smith was interviewed by Det. Truitt. She had been without her medication and was somewhat confused in her thinking. Ms. Carol stated that her aunt was in the early stages of dementia. During the interview, Mrs. Smith described the incident with the two girls stealing her keys and money and keeping her in the trunk of her car for two days without food, water, or bathroom stops. She stated that she had been dropped off in a cemetery, and then crawled around, in the cold, trying to find a road. After Mrs. Smith's car was located, Det. Truitt returned it to her.
Harper, McDonald, Brewer, and Perez were all interviewed about the incident. The interviews of McDonald and Harper are addressed in their respective opinions. Perez's interview is addressed below.
On April 4, 2013, Det. Truitt interviewed Mrs. Smith at her home. She showed him bruises and scrapes on her knees from crawling around the cemetery. She also stated that her hands and lower extremities were still numb from exposure to cold temperatures while in the trunk. She said that she had tried to talk to the kidnappers but was told to "shut up, " and that one of the girls said they would kill her if she reported the incident to the police.
At the hearing, Det. Truitt testified that he found a receipt for clothing from the Walmart in Seaford. He reported that the temperature on the night of the kidnapping ranged from the mid-to-upper 30's to the mid-to-lower 40's. Det. Truitt stated that the girls blamed one another for the car theft, and that Brewer told him the Buick was stolen.
Upon being arrested, Perez was interviewed by Det. Truitt. She stated that she and McDonald met Mrs. Smith at the Chicken Man in Milford, where they asked her for a ride. Perez stated that she told Mrs. Smith that the girls needed to go to Perez's house. When they got there, Perez told Mrs. Smith that no one was home. They then went to a second house, and then told Mrs. Smith that they needed to use her car. McDonald asked for Mrs. Smith's keys. Perez stated that Mrs. Smith was a little hesitant to give the keys over, and then agreed that Mrs. Smith resisted in giving over the keys. The girls then put her in the trunk.
Perez then stated that the girls went to Coverdale for awhile, and then picked up Brewer and Harper. That night, Harper heard Mrs. Smith speaking from the trunk. After riding around smoking marijuana, the four rented a room at the Days Inn in Seaford. Perez indicated that they spent Mrs. Smith's money on clothes from Walmart, food, gas, and the hotel room. She claimed that she got $500 from Mrs. Smith's purse. Perez also stated that Brewer and Harper got money from Mrs. Smith at some point, as well.
Perez stated that, once inside the cemetery, they opened the trunk and Mrs. Smith got out of the trunk. She claimed that all four were present for this. Perez claimed that Mrs. Smith got out of the trunk, fell, and was caught by Perez, who sat her down on the ground.
Brewer's October 16, 2013 Testimony
After being arrested, Brewer gave a statement to the police in which he claimed that he did not know that during this criminal episode, the youths were driving a stolen car with its owner locked in the trunk. He also stated that he was not in the cemetery. As part of his agreement with the State, Brewer testified at one of Perez's subsequent reverse amenability hearings. At this hearing, he gave a much different account of events. The Court summarizes Brewer's testimony below because Brewer essentially provided a play-by-play account, albeit alleged, of what happened during the two days that Mrs. Smith was held captive by the defendants.
At the time of Mrs. Smith's kidnapping and his testifying, Brewer was 17-years-old. He grew up in Coverdale, a part of Bridgeville, Delaware. He attended Woodbridge High School through the ninth grade. He also attended the Sussex County Opportunity Program in Education ("SCOPE"), an alternative school in Bridegeville, for six months. He was 16-years-old when he ultimately left school. In Coverdale, he lived with his mother.
Brewer knew Harper all of his life. He knew Perez and McDonald for only a few days before he was arrested. The first time he met the girls was in Coverdale. On that occasion, the girls were with Harper in a dark blue car that had the back windows smashed. McDonald was driving. Brewer asked them for a ride to Seaford; and they took him. Harper stayed behind. Brewer was around the girls that day for about a couple of hours. He did not strike a friendship with either girl in particular. Brewer was supposed to meet up with the girls later that night; but they did not arrive.
The girls said for Harper and Brewer to meet up the next night to go a party in Dover. The plan was for the girls to provide the transportation. The next night, the girls picked Harper and Brewer up in the same dark blue car. The four went to Dover, but could not find the party. They therefore returned to Coverdale, picked another person up, and went back to Dover. Once there, they still could not find the party. On the way back from the second trip to Dover, a policeman stopped the car. At some point, McDonald, who drove sometimes but not all of the time, had told Brewer that the car was her mother's, but when it was pulled over, stated that it was stolen.
That night, McDonald sent Brewer a message on Facebook asking him how he was and stating that they would meet up. The next day, around 12:00 p.m. or 1:00 p.m., McDonald and Perez showed up in what Brewer believed to be a tan Mercury. McDonald was driving. Brewer got in the car; and they went to pick up Harper. McDonald informed Brewer that the car was her aunt's.
The four then went to a community park in Coverdale. They sat in the parking lot for about a half an hour talking, and then went to Royal Farms to get gas. McDonald and Perez paid for the gas in cash. Brewer did not see how much money the girls had on them, but knew they had money. They then went back to the park in Coverdale. They sat there for a couple of hours until the tan car died. While they had been sitting there, the engine was running, the heater was turned on, and the radio was playing.
Brewer told the group he would get his mother's car. He and Harper then left for his mother's house, which was around the corner from the park. Brewer drove his mother's car back to the park. Brewer told the group he was going to try and get some jumper cables, and left and brought someone back to jump start the tan car. The car's battery, however, could not be found. The person who was brought back to jump start the car told the group to open the trunk. Brewer tried to do this, but McDonald and Perez would not let him. McDonald then said that her uncle was coming. The person brought to jump start the car then left.
Brewer's mother's car and the tan car sat side-by-side. Brewer and McDonald then got into Brewer's mother's car and had sex. Harper and Perez got into the tan car. At some point, Harper came over to Brewer's mother's car and asked for Brewer's cell phone because Perez wanted to listen to some music. Brewer said no. Harper then came back a little later and said "Yo, I hear someone in the trunk. I hear someone in the car."
Brewer testified that at that point, he had to check the trunk. He got out of his mother's car, and ordered that the trunk be opened. McDonald remained in Brewer's mother's car. Brewer also stated that one of the youths knocked on the trunk and asked if anyone was there. The voice inside responded by saying "This is my car."The trunk was opened, revealing an old African American woman. Because it was nighttime, Brewer could not see her face. He thought she was wearing something dark. According to Brewer, upon opening the trunk, Perez acted like she was surprised. Brewer stated that he was shocked.
Harper and Brewer then helped the woman, Mrs. Smith, out of the trunk.Harper and Brewer asked the girls why the woman was in the trunk. The girls claimed that she was an alcoholic, had traded them her car for liquor, and did not want to be in the backseat. Harper and Brewer placed Mrs. Smith back in the trunk. Brewer never asked her if she wanted to get back into the trunk. However, according to Brewer, Mrs. Smith did not try resist, which allowed him to believe the girls' story about the liquor. Mrs. Smith did not ask for help or to be released.
The four then got into Brewer's mother's car and went to his grandmother's house. They left Mrs. Smith and the tan car in the park in Coverdale. They stayed at Brewer's grandmother's house for at least four or five hours. During the night, the four returned to the park in order to check to see if there were jumper cables in the trunk of the tan car. They opened its trunk a second time, with Mrs. Smith still there. They asked her if there were jumper cables in the trunk. She responded that she did not know, but that there should be. Mrs. Smith stayed in the trunk while it was searched for the cables. Also, according to Brewer, Mrs. Smith actually helped search for the cables. Brewer then found the cables; and Harper assisted Mrs. Smith out of the trunk a second time. The girls remained in Brewer's mother's car. Brewer tried to jump start the car; but the cables did not work. Harper then assisted Mrs. Smith back into the trunk. The four returned to Brewer's grandmother's house for the rest of the night.
In the morning, Brewer went to his uncle for assistance in jump starting the tan car. Brewer's uncle did not have jumper cables. Therefore, Brewer got cables from another person in Coverdale. Brewer then brought his uncle to the park to jump start the tan car using his mother's car. The tan car started. Afterward, Brewer, McDonald, and Brewer's uncle got into Brewer's mother's car and drove to Brewer's uncle's house to drop his uncle off, with Harper and Perez following in the tan ...