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Dunn v. State

Supreme Court of Delaware

September 22, 2014

TONY DUNN, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

Submitted: September 17, 2014

Court Below: Superior Court of the State of Delaware, in and for New Castle County Cr. I.D. No. 1109019790

Before HOLLAND, RIDGELY and VALIHURA, Justices.

ORDER

Karen L. Valihura Justice

This 22nd day of September 2014, upon consideration of the briefs of the parties and the record in this case, it appears to the Court that:

1. Defendant below, Tony Dunn ("Dunn"), appeals from his conviction and sentence for Hindering Prosecution. Dunn raises two issues on appeal. First, he contends that the Superior Court erred in admitting the prior out-of-court statement of a witness at trial. Second, he contends that the Superior Court erred in denying his motion for judgment of acquittal. We find no merit to the appeal and affirm.

2. On September 14, 2011, Dominique Helm ("Helm") was shot in the back outside his mother's home at 124 West 23rd Street in Wilmington. Helm's mother, Nicole, testified that before the shooting she was standing in her kitchen and heard her son arguing with someone. She looked out the window and saw two men, whom she identified at trial as Dunn and his son, Lynell Tucker ("Tucker"). The two men approached her son and told him to go back inside his house. Nicole opened the window and told her son to come inside. She was walking toward her front door when she heard her son trying to open the door. Nicole heard a shot, her front door opened, and her son stepped through the door and collapsed. Police officers arrived at 8:40 p.m. They administered CPR until emergency personnel arrived. Helm was pronounced dead at 9:13 p.m. The forensic expert testified that Helm died from a single gunshot wound to his back.

3. Helm's cousin, Devin Marsh, testified at trial that he and Helm were on the porch of the house of another cousin, Shakeem Davis ("Davis"). Davis lived in his grandmother's house across the street from Helm's mother. Marsh testified that Tucker came along and told Helm and Marsh that anyone who is "not a Dunn" had to get off the porch. Marsh further testified that Tucker drove off in a green truck but returned on foot a few minutes later. When he returned, according to Marsh, Tucker approached Helm, exchanged words with him, and then punched Helm in the face. During the ensuing fight, Dunn appeared and began hitting Helm. Marsh testified that when the physical fight ended, Helm and Tucker continued to argue and that Tucker then pulled out a gun and shot Helm.

4. Davis testified that he is related to Helm, Tucker, and Dunn. At trial, Davis stated that he was with Helm on the day of the murder. He saw Tucker earlier in the day but claimed not to have seen him later. The State offered into evidence a taped statement that Davis had made to police the day after the murder. The trial court allowed the taped statement into evidence over defense counsel's objections. In that statement, Davis told police that he had been on his grandmother's porch with Helm when Tucker approached and told them that anyone who was not a "Dunn" had to leave and get off of the porch. According to Davis' statement, Tucker left and then came back with his father. Davis was inside his grandmother's house when he heard a gunshot. He ran outside, saw Dunn standing in the area, and saw Helm in the doorway of his mother's house, apparently bleeding.

5. Another witness, Shawn Whalen, testified that on September 14, 2011, he was standing on his porch smoking a cigarette when he saw Helm, whom he knew, in a fist fight with another man, whom he did not know. During the fight, Whalen saw a third man run over and push Helm away. Whalen heard Helm say to the man with whom he had been fighting, "You're lucky your pop saved your life." Whalen testified that he saw the unknown man then pull out a gun and shoot Helm, and that the third person who had interceded in the fight was standing beside the shooter.

6. The evidence at trial established that, after the shooting, Tucker and Dunn left the scene together. Using cell phone tower records, the police were able to track the pair from Wilmington to Florida. At trial, the State introduced evidence of two traffic citations that were issued, one to Tucker and one to Dunn, by South Carolina authorities on September 15, 2011. On September 23, 2011, police apprehended Tucker, who was found hiding in the trunk of a car in Florida. Tucker was arrested on multiple charges including Murder in the First Degree. On September 26, 2011, Dunn was arrested at his residence in Wilmington on a felony charge of Hindering Prosecution.

7. Dunn testified at trial, but Tucker did not. Dunn stated that he was present when Helm was shot. He claimed that Tucker and Helm had fought briefly and that, after the fight, Helm had threatened Tucker. Dunn testified that Devin Marsh was the person who shot Helm. He testified that he feared for his son's life, so he fled with him to Florida. Dunn claimed that he did not know that Tucker was wanted by police and was unaware that Tucker had been accused in Helm's murder until the two had reached Florida. The jury convicted Dunn of Hindering Prosecution. The Superior Court sentenced Dunn to two years in prison followed by six months' probation.

8. Tucker and Dunn were tried jointly. At the close of the State's evidence, Dunn moved for a judgment of acquittal. He argued that the State had failed to prove that he was guilty of hindering the prosecution of his son for first degree murder, as indicted, because Helm was still alive when Dunn and Tucker left the crime scene. The Superior Court denied Dunn's motion.

9. Dunn raises two issues on appeal. First, he contends that the Superior Court abused its discretion in allowing Davis' taped statement to police into evidence because the statement was not voluntary under 11 Del. C. ยง 3507 ("Section 3507"). Second, he argues that the Superior Court erred in denying his motion ...


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