MICAH O. CUFFEE, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: August 8, 2014
Court Below Superior Court of the State of Delaware, in and for Kent County Cr. ID No. 1209013919
Before HOLLAND, RIDGELY, and VALIHURA Justices.
Randy J. Holland Justice
This 14th day of October 2014, upon consideration of the briefs of the parties and the record in this case, it appears to the Court that:
(1) The defendant-appellant, Micah O. Cuffee, appeals from his convictions for Attempted Theft, Conspiracy in the Second Degree, and Criminal Mischief after a Superior Court jury trial. On appeal,  Cuffee claims: (i) the Superior Court erred in allowing the State to amend the indictment before trial and during trial; (ii) the Superior Court erred in admitting a picture of Cuffee the night of his arrest; (iii) the prosecutor made improper statements during his opening and closing arguments; (iv) the State committed discovery and Brady violations by failing to produce a recording of police radio communications; and (v) Cuffee was deprived of his right to self-representation. We find no merit to these claims and affirm the judgment of the Superior Court.
(2) On the night of September 19, 2012, a resident of a development located near Walker Road in Dover heard a vehicle, a screeching, metallic noise like something was being dragged, and voices outside the back of her townhouse. Office buildings, which were closed for the day, were located behind the caller's townhouse. The resident called 911 to report the noises at approximately 10:30 p.m. Corporal Gregory Hopkins and other members of the Dover police responded to the 911 call.
(3) Initially, Hopkins and the other police officers checked businesses and communities along Walker Road for the source of the reported noises. Hopkins checked 1155 Walker Road and did not see anything there. Hopkins then went to the 911 caller's townhouse and spoke to her about what she had heard in order to pinpoint the location of the noises. Based on that conversation, Hopkins drove back to 1155 Walker Road, which was located behind the townhouse.
(4) Hopkins walked around the building located at 1155 Walker Road and saw four, disconnected air conditioning units behind the building and near a shed. The air conditioners had been cut from the building located at 1155 Walker Road. Hopkins reported his findings and it was decided that he would stay in the area to conduct surveillance in case someone returned to pick up the disconnected air conditioners. Other officers set up a perimeter near Walker Road.
(5) Shortly after Hopkins concealed himself under some trees to monitor the area where the air conditioners were located, he observed a maroon minivan, with no headlights on, driving in from Walker Road. After driving into the parking lot that was closest to the disconnected air conditioners, the minivan began backing up over a bed of rocks near the air conditioners and became stuck.
(6) Hopkins watched the minivan occupants attempt to remove the minivan from the rocks. They were unsuccessful and called somebody for assistance. Although Hopkins could see the occupants of the minivan walk around it, he could not see them at all times. Hopkins observed a white pick-up truck drive in from Walker Road and tow the minivan off of the rocks. Cuffee's cousin, Walter Cuffee, testified that Cuffee called him the night of September 19, 2012 for assistance. Walter Cuffee drove his white pick-up truck to Walker Road, where he testified that he picked up Cuffee and Mark McDonald, and then helped Cuffee and McDonald tow the minivan from the rocks. After Hopkins watched the white pick-up truck and maroon minivan leave the parking lot, he saw that the disconnected air conditioners were no longer where he had previously seen them. Hopkins radioed police units on Walker Road to report that the air conditioners had been taken and that both the white pick-up truck and maroon minivan should be stopped. Hopkins then walked around the area and saw that the air conditioners had been moved to the other side of the shed.
(7) Police stopped the white pick-up truck and maroon minivan. Cuffee was driving the minivan and McDonald was the passenger. Both men were arrested. In a search of the minivan, the police found a pair of bolt cutters, Channellock pliers, a flashlight, and two pairs of work gloves. All of the seats, except for the driver seat and front passenger seat, had been removed from the minivan. Cuffee's daughter testified that she owned the minivan and that the equipment in the minivan belonged to her husband.
(8) The jury found Cuffee guilty of Attempted Theft, Conspiracy in the Second Degree, and Criminal Mischief. Cuffee was declared a habitual offender under 11 Del. C. § 4214(a) and sentenced to eight years of Level V incarceration for Attempted Theft, two years of Level V incarceration, suspended for one year of Level III probation, for Conspiracy in the Second Degree, and a fine of $250 for Criminal Mischief. This appeal followed.
(9) Cuffee first argues that the Superior Court erred in granting the State's motions to amend the indictment before and during the trial. This Court reviews the Superior Court's decision on a motion to amend an indictment for abuse of discretion. The Superior Court "may permit an indictment . . . to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." Amendment is not permitted if it changes an essential element of the charged offense or prevents the defendant "from pursuing his initial defense strategy." In the absence of prejudice to ...