Submitted: November 2, 2016
Below-Superior Court of the State of Delaware Cr. ID No.
appeal from the Superior Court. AFFIRMED.
J. O'Connell, Esquire (Argued), Bernard J. O'Donnell,
Esquire, Misty A. Seemans, Esquire, Office of Public
Defender, Wilmington, Delaware, Attorneys for Defendant
P. Lugg, Esquire (Argued), Andrew J. Vella, Esquire,
Department of Justice, Wilmington, Delaware.
STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ,
Justices, constituting the Court en Banc.
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.
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.
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
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.
determined that all of Jeffrey's arguments are without
merit. Therefore, the judgment of the Superior Court must be
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."
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
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.
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
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.
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
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.
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.
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
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.
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.
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."
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
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
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
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.
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
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
Q: And they instructed you not to talk about the witness
A: No, they didn't tell me not to talk about a witness
protection-they didn't instruct me to talk about a
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
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
Q: Do you recall, do you recall me telling you that I
wasn't going to ask you about witness protection?
Q: Did I explain to you that defense counsel would then ask
you about witness protection?
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.
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
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
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.
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 material, which led to the introduction of
prejudicial evidence-namely, the testimony from Allen
concerning the witness protection agreement. In Pena
v. State,  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. In Revel v.
State 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.'" 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." And "[j]uries are presumed to follow
the trial judge's instructions."
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.
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
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
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 ...