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Phillips v. State

Supreme Court of Delaware

January 17, 2017

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

          Submitted: November 2, 2016

         Court Below-Superior Court of the State of Delaware Cr. ID No. 1210013272

         Upon appeal from the Superior Court. AFFIRMED.

          Kevin J. O'Connell, Esquire (Argued), Bernard J. O'Donnell, Esquire, Misty A. Seemans, Esquire, Office of Public Defender, Wilmington, Delaware, Attorneys for Defendant Below, Appellant.

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

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

          HOLLAND, Justice

         This is a direct appeal from a final judgment of convictions in the Superior Court. A grand jury issued a 54 count indictment charging the defendant below Appellant, Jeffrey Phillips ("Jeffrey"), Otis Phillips ("Otis"), and fourteen other co-defendants with gang participation charges relating to criminal activities of the Sure Shots street gang (the "Sure Shots"). Jeffrey was charged with two counts of Murder in the First Degree, Attempted Murder in the First Degree, Gang Participation, Conspiracy in the First Degree, Reckless Endangering in the First Degree, Four Counts of Possession of a Firearm During the Commission of a Felony, Riot, Conspiracy in the Second Degree, Disorderly Conduct, Two Counts of Assault in the Third Degree, and Criminal Mischief. The State sought the death penalty for Jeffrey.

         The Superior Court denied severance motions and, instead, conducted a joint capital trial of Jeffrey and Otis that began on October 20, 2014 and lasted 21 days. On November 21, 2014, the jury convicted Jeffrey of Murder in the First Degree, Manslaughter (as a lesser-included offense), Gang Participation, Conspiracy in the First Degree, Four Counts of Possession of a Firearm During the Commission of a Felony, Assault in the Second Degree, Reckless Endangering in the First Degree, and Disorderly Conduct (as a lesser-included offense). The jury acquitted Jeffrey of Assault in the Third Degree and Conspiracy in the Second Degree.

         The penalty hearing began on December 18, 2014, and the jury found '"two in the affirmative, 10 in the negative' on the question of whether the aggravating circumstances outweighed the mitigating circumstances." The State withdrew its intent to seek the death penalty on September 4, 2015, and the Superior Court sentenced him to life imprisonment and an additional 72 years in prison, followed by decreasing levels of supervision, for the remaining convictions.

         Jeffrey raises five issues on appeal. First, Jeffrey challenges the Superior Court's refusal to grant a mistrial on the basis of prosecutorial misconduct and prejudicial testimony. Second, Jeffrey claims that the Superior Court denied him the right to effectively prepare for trial by granting the State's protective orders. Third, Jeffrey contends that the Superior Court erred in refusing to grant severance from a joint trial with Otis and from joining the Gang Participation and Riot charges with the homicide charges. Fourth, Jeffrey argues there was insufficient evidence for a reasonable jury to convict him of Gang Participation. Finally, Jeffrey claims that the Superior Court's deficient jury instructions require reversal.

         We have determined that all of Jeffrey's arguments are without merit. Therefore, the judgment of 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 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 another shooting at a 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 Jeffrey was Allen. During his direct testimony, Allen asserted that Jeffrey was a member of the Sure Shots, had received a loaded .40 caliber semi-automatic handgun from the leader of the Sure Shots, Seon, just prior to going to Eden Park on July 8, 2012, and was a willing participant in the shootout that took place in Eden Park on July 8, 2012. Prior to trial, Allen had pleaded 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. The Sure Shots originated in Delaware in 1995 and was involved primarily in illegal drug trafficking. Sure Shots members had a reputation of carrying and using their firearms and engaging in various assaults, shootings, and homicides. The State alleges that Otis and Jeffrey were members of the Sure Shots. This allegation is predicated upon the WPD's investigation into the Palmer murder, the nightclub incident, and the Eden Park Homicides, as well as an altercation at a Royal Farms (the "Royal Farms Incident").

         On February 26, 2012, Shanice Kellam, her brother, Jeremy Showell, and three other friends went to a Royal Farms store in Bridgeville, Delaware. As they entered the store, Kellam heard a man say "[y]ou're a bad bitch, " to which Showell responded, "she's not a bitch, she's a lady." A group of men approached them and one punched Kellam in the face. The men then attacked Kellam and Showell. A second carload of men arrived at the Royal Farms and joined the first group in their attack of Kellam and Showell. The altercation was captured on video and Detective Curley identified Jeffrey and other members of the Sure Shots gang as Kellam's and Showell's assailants. The WPD homicide investigations and the Royal Farms Incident constituted the predicate offenses for the Gang Participation charge against Jeffrey.

         Mistrial Properly Denied

         On the second day of trial, October 21, 2014, the State informed defense counsel that Maria DuBois had entered into a witness protection agreement with the State. Defense counsel immediately requested that the trial judge require the State to identify any other witnesses that had entered into witness protection agreements with the State, as well as an accounting of the financial benefits that they had received pursuant to those agreements. Over the next several days, the State provided defense counsel with the witness protection agreements of four co-defendants and an accounting of the financial benefits paid to or on behalf of those State witnesses. Three of these witnesses testified.

         The witness protection agreements were written documents that provided financial benefits in exchange for the witnesses' cooperation in the prosecution of various Sure Shots defendants, including Jeffrey. The agreements required the witnesses "to testify truthfully if called as a witness" at trial. The agreements gave the Chief Deputy Attorney General of the Department of Justice "the sole authority to finally determine whether a material breach of this agreement by . . . the witness [had] occurred and the appropriate remedies and sanctions."

         The trial judge recognized that the witness protection agreement evidence had the potential to cause confusion. These agreements implied that the witness was in danger from any or all of the co-defendants in the case to such an extent that the State was willing to expend thousands of dollars to protect the witness. Conversely, the fact that the witnesses were receiving financial benefits as a result of their decision to testify against defendants had the potential to demonstrate bias.

         Prior to the testimony of Maria DuBois, the trial judge ruled that the State could not ask any witness about a witness protection agreement during direct examination but the defense could cross-examine the witness about the financial benefits received as a result of being in witness protection. The trial judge advised the State to discuss this issue with their witnesses in advance of testifying, and that if the State raised the issue in its case-in-chief they did so at their "own peril." Defense counsel for Jeffrey did not raise the issue of witness protection during the cross-examination of Maria DuBois or Michael Young, because neither of those witnesses testified in a manner that inculpated Jeffrey.

         Allen was called as a State witness on October 24, 2014. After a few foundational questions, the State placed Allen's plea agreement in front of him and asked him the following question:

Q: Now, without again looking at the document, what, if any, benefits did the State promise you in exchange for your plea?
A: Just that, just that, like, witness protection.

         All of the attorneys immediately went to sidebar where the State informed the trial judge: "I've instructed this witness multiple times that I was not allowed to ask about witness protection . . . [s]o I don't know why he mentioned that." Defense counsel for Jeffrey initially asked for a curative instruction but then requested a mistrial.

         The trial judge denied the motion for mistrial and then permitted defense counsel to examine Allen outside the presence of the jury. During that examination, Allen revealed that he was in witness protection as a result of his fear of "everything that is going on", but not as a result of threats made by Jeffrey. With regard to what the State had told Allen to say about witness protection, the following exchange occurred upon questioning by counsel for Jeffrey:

Q: Mr. Allen, the prosecutors met with you before you testified, correct?
A: Yeah.
Q: And they instructed you not to talk about the witness protection, correct?
A: No, they didn't tell me not to talk about a witness protection-they didn't instruct me to talk about a witness protection.
Q: Not to talk about it?
A: No. I said they didn't instruct me. They just told me to tell the truth.
Q: There's never any discussion with you and the prosecutors about talking-not talking about witness protection?
A: No.

         The State then asked Allen questions concerning prior discussions with him about witness protection:

Q: Did the State, did I today explain to you about witness protection?
A: Yes.
Q: Do you recall, do you recall me telling you that I wasn't going to ask you about witness protection?
A: Yes.
Q: Did I explain to you that defense counsel would then ask you about witness protection?
A: Yes.
Q: Then did I explain to you that I would then be able to stand up and ask you more?
A: After more, yeah.
Q: So what was your understanding with what I would ask you about witness protection?
A: Can you repeat that question to me?
Q: Yeah. What did you understand me saying when I said I wasn't going to ask you about witness protection and that only they could?
A: I didn't even really understand that.

         Defense counsel for Jeffrey renewed his motion for a mistrial, emphasizing that the State had not made it clear to its witness that evidence concerning witness protection was not to be discussed unless specifically asked by the defense. Both defendants also argued that a curative instruction was insufficient. The trial judge denied the renewed motions for a mistrial.

         Defense counsel for Jeffrey then informed the trial judge of their intent to explore the issue of payments made to Allen pursuant to the witness protection agreement. Defense counsel for Otis objected to action by Jeffrey. Both defendants then moved for a severance and a mistrial. Those motions were denied.

         The Superior Court concluded that "Allen merely stated that his participation in witness protection was a benefit that he received under his plea agreement with the State, " and that Allen's improper mention of his participation in witness protection was not the result of prosecutorial misconduct and "did not sufficiently prejudice either of the Defendants to warrant a mistrial." Instead, a previously prepared limiting instruction was given to the jury as follows:

Ladies and gentlemen, the witness has testified that he currently has some involvement in the Witness Protection Program. There's no evidence before you that the defendants personally made any threats, directly or indirectly, against the witness. The fact that a witness received a benefit in the program may only be considered by you for the purpose of judging the credibility of the witness, it should not be considered by you in determining the guilt of the defendants.

         Jeffrey argues that the Superior Court abused its discretion when it denied his motions for a mistrial. According to Jeffrey, the State failed to disclose exculpatory Brady[1] material, which led to the introduction of prejudicial evidence-namely, the testimony from Allen concerning the witness protection agreement. In Pena v. State, [2] this Court established a four-factor assessment to determine whether a mistrial should be granted in response to an allegedly prejudicial remark by a witness: (1) the nature and frequency of the offending comment; (2) the likelihood of resulting prejudice; (3) the closeness of the case; and (4) the adequacy of the trial judge's actions to mitigate any potential prejudice.[3] In Revel v. State[4] the Court added that a mistrial should only be granted as a last resort when there are no other alternatives-i.e., where there is '"manifest necessity' or the 'ends of public justice would otherwise be defeated.'"[5] Moreover, regarding the fourth factor, a trial judge's prompt curative instructions "are presumed to cure error and adequately direct the jury to disregard improper statements."[6] And "[j]uries are presumed to follow the trial judge's instructions."[7]

         We will apply the four Pena factors in this case. First, Allen only testified on one occasion that he was in witness protection. Second, Allen gave no testimony before the jury that he had a particularized fear of Jeffrey or Otis. Third, this was not a close case. Several witnesses testified to Jeffrey's involvement in the Curry and Kamara homicides and his general involvement in the Sure Shots gang. Fourth, while the jury may have speculated that Allen's participation in witness protection was directly attributable to Jeffrey or Otis, the trial judge's curative instruction addressed such speculation.

         Consideration of the four Pena factors establishes that the trial judge acted within his discretion in denying Jeffrey's motion for a mistrial. The trial judge was in the best position to assess the potential prejudice of Allen's statement and his decision to deny Jeffrey's motion for a mistrial was neither arbitrary nor capricious. To the extent the terms and conditions of Allen's participation in a witness protection program were Brady material, Jeffrey received the information sufficiently in advance of Allen's testimony to use it effectively. To the extent that Allen's comment to the jury that he received witness protection for his plea prejudiced Jeffrey, that prejudice was effectively ameliorated by the trial judge's limiting instruction.

         Protective Orders Proper

         Jeffrey challenges two pre-trial protective orders that restricted his defense counsel's ability to share the identity of co-defendants and witnesses with him, along with others and the content of their statements. This Court reviews "a trial judge's application of the Superior Court Rules relating to discovery"-such as the protective orders at issue here-"for an abuse of discretion."[8]

         On April 16, 2014, upon ex parte application by the State, the trial judge entered a protective order pursuant to Superior Court Criminal Rule 16(d). That order prohibited counsel for each defendant from sharing with their clients, the friends, family, and associates of their clients, or with counsel's employees or agents, the identification of the cooperating co-defendants who had given statements as well as the contents of those statements. On August 14, 2014, upon application by the State, the trial judge entered another protective order that prohibited counsel for the defendants from disclosing the identity of the witnesses whose statements were to be provided to counsel on August 15, 2014. The protective order also prohibited defense counsel from sharing with their client, the friends, family, and associates of their clients, or any employee ...

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