Submitted May 28, 2014
Case Closed August 12, 2014.
Court Below: Superior Court of the State of Delaware in and for New Castle County. No. 1210009895.
Nicole M. Walker, Esquire, Office of the Public Defender, Wilmington, Delaware for Appellant.
Maria T. Knoll, Esquire, State of Delaware Department of Justice, Wilmington, Delaware, for Appellee.
Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.
Defendant-Below/Appellant Brandon Williams appeals from a judgment of convictions in the Superior Court of Burglary Second Degree, Unlawful Use of a Credit Card, Misdemeanor Theft, and Resisting Arrest. The State alleged that Williams entered the home of Jeffrey Fisher through an open window and stole his wallet from his home office. Police officers were alerted and initiated a search of the area using a K-9 scent-tracking dog. During the search, a dispatcher told the officers about a white male attempting to break into a nearbye BP gas station. Officers investigated and after a foot chase of that man, who was later identified as Williams, officers found him in possession of Fisher's wallet. The wallet contained a receipt for a purchase with Fisher's credit card minutes earlier at a nearby drug store. Store surveillance video confirmed the use of the card by Williams.
Williams did not object at trial to the evidence of the dispatch to the BP station. In his defense, Williams conceded that he unlawfully used Fisher's credit card and that he resisted arrest. But he denied that he was the person who burglarized the Fishers' home. Instead, Williams claimed that he found the wallet and that he had been too intoxicated to commit the burglary. The jury found Williams guilty of all charges. The trial court sentenced Williams to fifteen years of imprisonment as a habitual offender pursuant to 11 Del. C. § 4214(a). This appeal followed.
Williams raises two claims on appeal. He first contends that the trial court committed plain error when it allowed the State to emphasize through four police officers and closing argument that Williams was arrested in this burglary case after the police responded to a call of an attempted burglary at the BP station. Second, Williams claims that the trial court plainly erred and unfairly bolstered police testimony when it provided an expert-witness jury instruction that referred to police officers because there was no qualified expert who testified at trial.
We find no merit to Williams' appeal. The record shows that Williams' trial counsel did not object to the evidence of the dispatch to the BP station for tactical reasons. Defense counsel also referred to the dispatch call during her closing argument in support of Williams' defense. This tactical decision constitutes a waiver that precludes plain error review. Even if Williams had objected or if defense counsel had not used the dispatch call as part of a trial strategy, any error in admitting the hearsay statements was harmless. We also find ...