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Phillips v. State

Supreme Court of Delaware

January 17, 2017

OTIS PHILLIPS, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: December 7, 2016

         Court Below-Superior Court of the State of Delaware Cr. ID No. 1210013321

         Upon appeal from the Superior Court. AFFIRMED and REMANDED FOR RESENTENCING.

          Anthony A. Figliola, Jr., Esquire (Argued), Michael C. Heydon, Esquire, Greto Law, Wilmington, Delaware, Attorneys for Defendant Below, Appellant.

          Andrew J. Vella, Esquire (Argued), Sean P. Lugg, Esquire, Department of Justice, Wilmington, Delaware.

          Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en Banc.

          HOLLAND, Justice

         A 54 count indictment charged Otis Phillips ("Otis") and numerous co-defendants with Gang Participation and charges associated with the activities of the Sure Shots criminal street gang. The indictment charged Otis with three counts of Murder in the First Degree, Attempted Murder in the First Degree, Assault First Degree, Gang Participation, Conspiracy First Degree, Reckless Endangering in the First Degree, six counts of Possession of a Firearm During the Commission of a Felony ("PFDCF"), Conspiracy Second Degree, and Possession of a Deadly Weapon by a Person Prohibited ("PDWBPP").

         The Superior Court denied severance motions and conducted a joint capital trial of co-defendants Otis and Jeffrey Phillips ("Jeffrey"). The jury found Otis guilty of Murder in the First Degree, Murder in the Second Degree (as a lesser-included offense of Murder in the First Degree), Manslaughter (as a lesser-included offense of Murder in the First Degree), Gang Participation, Conspiracy in the First Degree, five counts of Possession of a Firearm During the Commission of a Felony, Assault Third Degree (as a lesser-included offense of Assault in the First Degree), Assault Second Degree, and Reckless Endangering. The jury acquitted him of one count of PFDCF and Conspiracy Second Degree.

         The Superior Court conducted a four-day penalty hearing. The jury found, unanimously and beyond a reasonable doubt, two statutory aggravating circumstances: that Otis's "course of conduct resulted in the deaths of two or more persons where their deaths [were] the probable consequence of [Otis's] conduct"; and that the "murder was premeditated and a result of substantial planning." The jury weighed the aggravating and mitigating circumstances presented and unanimously found by a preponderance of the evidence that the aggravating circumstances outweighed the mitigating circumstances. The Superior Court sentenced Otis to death for Murder in the First Degree, life imprisonment for Murder in the Second Degree, and 130 years of incarceration for the remaining offenses.

         Otis raises several issues on appeal. First, he contends that the Superior Court abused its discretion when it denied his motions to sever his trial and some of the charges. Second, he argues that the Superior Court erred by admitting co-conspirator statements, certified records of conviction of non-testifying co-defendants, and the statement of an unavailable witness. Third, Otis submits that the Superior Court abused its discretion by denying his motion for a mistrial following Clayon Green's comment that, "[i]f you think I'm lying, ask Otis and what's his name if I'm lying." Fourth, Otis argues that the Superior Court improperly responded to jury notes. Fifth, Otis contends that his right to a speedy trial was violated.

         Finally, Otis argues that his death sentence is unconstitutional based upon the United States Supreme Court's decision in Hurst v. Florida[1] In Rauf v. State, [2] this Court held that Delaware's death penalty statute was unconstitutional because it violated the Sixth Amendment role of the jury as set forth in Hurst. In Powell v. State, [3] this Court held that our decision in itaw/applied retroactively.[4] Accordingly, the State acknowledges that Otis's death sentence must be vacated and asks that this case be remanded to the Superior Court with directions that Otis be resentenced on the charge of Murder in the First Degree.

         We agree that Otis's death sentence must be vacated and that he must be resentenced on the conviction of Murder in the First Degree to "imprisonment for the remainder of his natural life without benefit of probation or parole or any other reduction."[5] We have concluded that none of Otis's other arguments are meritorious. Therefore, the judgment of convictions by the Superior Court must be affirmed.


         On January 27, 2008, Christopher Palmer was shot and killed inside an after-hours nightclub in Wilmington, Delaware. Herman Curry witnessed the murder. More than four years later, on July 8, 2012, Curry and Alexander Kamara were shot and killed during a soccer tournament at Eden Park in Wilmington, Delaware. Wilmington Police Department ("WPD") officers investigated the 2008 and 2012 murders. The investigations revealed that the suspects in the homicides, Otis and Jeffrey, were members of a criminal gang known as the "Sure Shots."

         Christopher Palmer Murder. There was a birthday party for Curry on January 27, 2008 at a nightclub on Locust Street in Wilmington. Palmer, the security guard responsible for checking guests for weapons prior to entry, denied three individuals-believed to be Otis, Jovani Luna, and Dwayne Kelly-entry into the club because "one or more of them was armed." A bystander, Clayon Green, witnessed the trio of men return and saw one of them push Palmer after he was again denied entry. According to Green, "Palmer and his assailant fell into a nearby bathroom, Otis 'reached around' into the bathroom and Green heard three shots." Palmer died as a result of the gunshot wounds. Curry also witnessed the incident and identified Otis as Palmer's shooter in a photo lineup. Afterwards, Kelly told Paula Thompson-his girlfriend at the time-that he and Otis were going to New York and Kelly did not see Otis after that visit.

         Nightclub Incident. Four years later, on July 7, 2012, Jeffrey was involved in a shooting at The River nightclub. According to the State, Kelmar Allen's testimony established that Allen removed Jeffrey from the club after Jeffrey got into an altercation with a rival gang member. As Allen and Kirt Williams waited for an elevator, Christopher Spence shot at them, "killing Williams and wounding Allen." After running outside, Allen "saw Jeffrey firing a .40 caliber gun at a person named 'Mighty, '" a rival gang member. The next day, Allen saw Jeffrey at a house on Lamotte Street, where he and other Sure Shots members were "collecting guns and bullets in the basement of the home." According to Allen, the members were angry because they wanted to find the rival gang members from the night before. The Sure Shots leader, Seon Phillips ("Seon", Otis's brother, no relation to Jeffrey), loaded a .40 caliber gun and gave it to Jeffrey.

         Eden Park Murder. On July 8, 2012, Curry organized an annual soccer tournament at Eden Park in Wilmington, Delaware. While Ricardo Brown was preparing food at the outdoor kitchen with Curry, he noticed two men walk through a gate onto the soccer field. Shortly after that, he heard "fire rockets go off and "turned and saw one of the men shoot Curry while the other shot his gun 'wild[ly].'" Curry and Kamara died as a result of their gunshot wounds (the "Eden Park Homicides").

         There were other witnesses to the homicides. Nearby soccer player, Raoul Lacaille saw two men approach Curry, tap him on the shoulder, and shoot him, identifying Otis as Curry's shooter. Omar Bromfield also heard what he described as firecrackers, saw a crowd running through the parking lot, and discovered shortly after that he had been shot. Venus Cherry, a tournament participant, saw two men enter the field, approach Curry, tap him on the shoulder, and one said, "Ninja, run, pussy, today you are dead, " prior to shooting him. According to Cherry, "[t]he second man turned toward the 'kitchen' area and fired his gun; a bullet hit Kamara and Cherry." Cherry identified Otis as Curry's shooter and Jeffrey as Kamara's shooter.

         Green witnessed Otis and Jeffrey walk across the field and then "saw Otis shoot at Curry, and Jeffrey shoot toward the parking lot as if to clear the way." Green then saw Otis and Jeffrey return to a gold car, and saw Christopher Spence approach the car and shoot the driver, Serge. Minutes after the shooting, officers found the gold car crashed at a nearby intersection. Officer Corey Staats found a handgun on the rear seat, "and observed the semi-conscious driver bleeding from his torso." Upon searching the vehicle, police discovered a 9 mm handgun, .40 caliber handgun, and black baseball cap containing DNA that matched that of Otis. According to firearm examiner Carol Rone, the shell casings collected from the Eden Park crime scene were fired from the recovered firearms.

         Officers searched the surrounding area for the two men who had fled from the crashed gold car and located Otis and Jeffrey in a back yard approximately four blocks north of Eden Park. A brief standoff followed, and then the officers arrested Otis and Jeffrey. The police noticed Jeffrey was wounded from a gunshot in the leg and discovered 20 rounds of 9 mm ammunition in his pants pocket.

         The State's primary witness against Otis and Jeffrey was Allen. Prior to trial, Allen pled guilty to Gang Participation. The sentence imposed by the trial judge was a period of incarceration suspended for time served (119 days) followed by level III probation.

         Gang Participation. Otis and Jeffrey actively participated in the Sure Shots gang. In addition to the murders of Palmer, Curry, and Kamara, they participated in other gang-related activity. Maria Dubois testified that she had been a member of the gang since 2003. She sold drugs for the gang and had daily contact with other gang members, including Otis. Dubois was present at The River nightclub when Palmer was killed. She testified that Otis was present that evening and, while she did not see him with a firearm at that time, he carried a firearm "as often as he needed." Dubois did not remember seeing Otis after the Palmer murder.

         Michael Young joined the Sure Shots gang in 2003. He sold drugs for the gang on 7th Street in Wilmington. According to Young, Otis was also a member of the gang and would always fire a gun in the air after being at a club that closed down for the evening. On May 5, 2007, Young, Otis, Dwayne Kelly and other members of the Sure Shots gang were at the nightclub at 8th and Adams Street. When the group left the nightclub, Young approached Harris and lifted his shirt, thinking that Harris was armed. Harris pushed Young's arm away, and Otis immediately punched him. Kelly then hit Harris in the head with a handgun, stepped back, and shot him one time. Otis and Kelly fled to a nearby home where Kelly's girlfriend lived.

         As a result of the Palmer, Curry, and Kamara murders, the assault and shooting of Antoine Harris, the illegal possession and use of firearms, and the illegal possession and distribution of controlled substances, Otis was charged with three counts of Murder in the First Degree, Attempted Murder in the First Degree, Assault First Degree, Gang Participation, Conspiracy First Degree, Reckless Endangering in the First Degree, six counts of Possession of a Firearm During the Commission of a Felony, Conspiracy Second Degree, and PDWBPP. The Superior Court conducted a joint trial of Otis and Jeffrey.

         Joinder of Defendants Proper

         Ordinarily, defendants indicted together should be tried together, but, if justice requires it, the trial judge should grant separate trials.[6] This Court set forth four factors that a trial court should consider when determining whether to sever defendants: "(1) problems involving a co-defendant's extra-judicial statements; (2) an absence of substantial independent competent evidence of the movant's guilt; (3) antagonistic defenses as between the co-defendant and the movant; and (4) difficulty in segregating the State's evidence as between the co-defendant and the movant."[7]

         This Court reviews the trial court's decision on a motion to sever for abuse of discretion.[8] A trial judge's denial of a motion to sever will not be set aside on appeal "unless [the] defendant demonstrates a reasonable probability that the joint trial caused substantial injustice."[9]

         During trial, after Allen testified to his participation in the witness protection program, Otis moved to sever his case from Jeffrey's case. Otis argued that severance was required because he and his co-defendant sought to engage in different cross-examination strategies to address the witness protection issue. The Superior Court denied Otis's motion, finding:

In this case, both the Defendants argue that one defendant's decision to cross-examine the State's witness regarding their participation in witness protection would prejudice the other defendant, whose trial strategy was to not address witness protection. However, neither of the Defendants' positions present separate defenses as to a State's witness's participation in witness protection, or otherwise, that the jury could only reasonably accept the core of if it rejects the core of the defense offered by his co-defendant. Moreover, neither of the Defendants testified or presented evidence that directly implicated the other in their own defense.

         Otis argues that the differences between his and Jeffrey's cross-examination strategies for Allen created antagonistic defenses that compelled severance.

         "[T]he presence of hostility between a defendant and his codefendant or 'mere inconsistencies in defenses or trial strategies' do not require a severance."[10] Jeffrey wanted to explore Allen's witness protection agreement on cross-examination. Otis did not want to address Allen's participation in the witness protection program. Their differing positions on cross-examination did not create a situation in which they were presenting separate defenses that required "the jury [to] reasonably accept the core of the defense offered by either defendant only if it reject[ed] the core of the defense offered by his codefendant."[11]

         The trial judge instructed the jury to "weigh the evidence and apply the law individually to render separate verdicts as to each defendant." Juries are presumed to follow the court's instructions.[12] Otis has failed to demonstrate a "reasonable probability that substantial prejudice may [have resulted] from a joint trial."[13] The Superior Court properly exercised its discretion when it denied Otis's motion to sever the defendants' trials.

         Joinder of Offenses Proper

         Prejudice from joinder of offenses may arise in the following three situations:

[F]irst, when the jury might cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find; second, when the jury might use the evidence of one of the crimes to infer a general criminal disposition of the defendant in order to find guilt of the other crime or crimes; and, third, when the defendant might be subject to embarrassment or confusion in presenting different and separate defenses to different charges.[14]

         "The defendant has the burden of demonstrating such prejudice and mere hypothetical prejudice is not sufficient."[15]

         Prior to trial, Otis moved to sever two charges of PDWBPP and the gang participation-related charges. The trial judge denied Otis's motion. On appeal, Otis argues that the joinder of the PDWBPP and Gang Participation charges demonstrated that he "was a felon and in fact used a gun previously during the commission of a crime" and that the jury "hear[d] evidence about the conduct of others that could be attributed to [him]." Otis also claims that joinder of the Gang Participation charges "would allow the [S]tate to introduce evidence about the conduct of these other people that otherwise would not be admissible." This Court considered, and rejected, similar arguments in Taylor v. State[16]

         In Taylor, Kevin Rasin, Taylor's co-defendant, argued that "the inclusion of the Gang Participation charge at his trial for Murder, Attempted Murder, and additional felonies was unfairly prejudicial to him because it allowed the State to proffer evidence that portrayed Rasin as a frequent drug dealer."[17] Rasin claimed that "without the Gang Participation charge, the State would not have been able to admit prior bad acts evidence during its case-in-chief."[18] The Court rejected Rasin's argument, stating:

Rasin's argument is premised on the assumption that evidence of his drug dealing would not have been admissible at a separate trial for the First Degree Murder Charge and his two Attempted First Degree Murder charges. That is not a sound premise. The State presented witnesses who portrayed Rasin as a frequent drug dealer between 2008 to 2010, and introduced his prior drug convictions during its case-in-chief. This evidence was relevant to prove the existence of a gang, as well as Rasin's knowing promotion of the Trap Stars' criminal purpose. This same evidence also would have been admissible in a separate trial of Rasin's Murder, Attempted Murder, and additional felony charges. Gang motivation and retaliation would have been an important part of the State's case-in-chief to prove Rasin's motive to commit those violent crimes. Otherwise, the crimes would have seemed like random acts of violence. In sum, the evidence supporting the charges in the indictment was "inextricably intertwined" and, therefore, admissible. Because the evidence would have been admitted even if the charges were severed, the trial court acted well within its discretion in denying severance.[19]

         "In determining whether the trial court abused its discretion [when denying a motion to sever charges], it is necessary to examine the facts in each case."[20] Otis was part of the Sure Shots and he engaged in violent acts with other members of the gang. The murder of Herman Curry was "inextricably intertwined" with the murder of Christopher Palmer, and the evidence relating to Palmer's murder was relevant in showing the motive behind Curry's murder. Gang motivation and retaliation were part of the State's case as it related to the Eden Park Homicides. The evening prior to those homicides, gang members were involved in an altercation at a nightclub where two people were shot, one of whom, Kelmar Allen, was a Sure Shots member. Retaliation for the nightclub shooting was one of the motives behind the Eden Park Homicides. As was true in Taylor, "the evidence supporting the charges in the indictment was 'inextricably intertwined' and, therefore, admissible."[21]

         The record reflects that the jury neither cumulated evidence among counts, nor inferred a criminal disposition to find Otis guilty. The trial judge instructed the jury to consider the evidence of each offense separately. The jury's verdict shows that they followed that instruction: finding Otis guilty of three lesser-included offenses, and acquitting him of one count of PFDCF and Conspiracy Second Degree. Accordingly, the record reflects the jury was able to distinguish the offenses and segregate the evidence.[22] Consequently, Otis has not demonstrated a "reasonable probability of substantial prejudice."[23]

         Co-Conspirator Statements

         Under Delaware Rule of Evidence 801(D)(2)(E), statements made by coconspirators during the course of a conspiracy are not hearsay if the offering party can show by a preponderance of the evidence that: (1) a conspiracy existed; (2) the co-conspirator and the defendant against whom the statement is offered were members of the conspiracy; and (3) the statement was made during and to further the conspiracy.[24]

         Otis, and several others, including Allen and Seon, were charged with Gang Participation. The Delaware Criminal Code provides:

A person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and who knowingly promotes, furthers or assists in any criminal conduct by members of that gang which would constitute a felony ...

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