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State v. Fisher

Court of Common Pleas of Delaware, New Castle

February 13, 2018


          Submitted: January 18, 2018

          Julie Mayers, Deputy Attorney General Attorney for the State of Delaware

          Elise K. Wolpert, Esquire Attorney for Defendant


          JOHN K. WELCH JUDGE.

         I. Introduction.

         Trial took place in this matter on Monday, January 8, 2018 in New Castle County Court of Common Pleas at which time the Court reserved decision. Defendant was charged by Information filed by the Attorney General, two (2) Counts; one (1) Count Assault 3rd in violation of 11 Del.C. §611(1) and One (1) Count Criminal Mischief in violation of 11 Del.C. §811(a)(1) in New Castle County on July 3, 2017.

         Prior to trial the State Moved into Evidence photographs of the alleged victim, numbered joint Exhibits 1-17 with no objection by the defendant. During the trial the State also moved into evidence photographs marked as State's 1 and 2 without objection. The defense moved in an additional exhibit as Defense 1 which was received and moved directly into evidence without objection by the State. This is the Court's Final Decision and Order.

         II. The Facts.

         Jennifer Ortiz ("Ortiz"), the alleged victim was sworn and testified as part of the State's case-in-chief. Ortiz is 28 years old, lives in Wilmington, Delaware, but was originally from New Jersey. Ortiz lived at 620 W. 9th Street previously with the defendant Darrick L. Fisher ("defendant") on July 3, 2017, the date of the incident.

         On July 3, 2017 both the defendant and Ortiz were at pool party in Philadelphia, Pennsylvania. The parties were drinking alcoholic beverages and got into a verbal disagreement. They returned to their place of residence set forth above at 620 W. 9th Street. Both were present approximately at the residence for 10-15 minutes watching TV when the defendant "ran down the steps" and "quickly out the door, " and then drove off in his motor vehicle. Ortiz claims she exclaimed, "Where are you going?" The defendant "then peeled off' in his motor vehicle. Ortiz described the controversy as fighting over "ridiculous things." Ortiz went outside the residence to look for the defendant and found that when she returned the front door of the residence at 620 was locked. Ortiz could not enter and return into 620 W. 9th Street. Ortiz then went to the sister of the defendant's house and requested assistance. Ortiz informed her that "Darrick had locked her out of the house." Ortiz and the defendant's sister then returned to the home; stood on a box and entered into the rear of the residence. Five (5) minutes later defendant showed up and Ortiz and the defendant began arguing once again.

         Ortiz claims the defendant choked her and grabbed her in the face which caused blood to protrude from her nose. Later Ortiz awoke at 3:00 AM July 4th in the morning and realized the defendant was now not in the residence. Ortiz called the defendant on her cell phone. According to her cell phone, Ortiz testified, the defendant had checked in at the Sheraton Hotel "up the street". Ortiz later learned that the defendant then changed his location by using of the location device on her cell phone indicated that the defendant was now in Newark, Delaware. Ortiz then sent the defendant an email which was marked and received into evidence as "Joint Exhibit 1."

         Ortiz questioned the defendant why he left the Sheraton. Ortiz traced her phone and drove to that location in Newark. Ortiz observed the defendant's motor vehicle in front of a residential home. Ortiz pulled up and walked into the front door of the residence because she heard a "loud pinging" on her cell phone device which indicated defendant's cell phone was in this residence. A woman walked out "half-naked" past the defendant and Ortiz exclaimed "Are you kidding me?" Ortiz testified her emotions at that moment were "very high." The defendant then went to side door and exited through the car port of that residence. Ortiz exclaimed "Who is she?" The defendant allegedly then punched Ortiz in the face. Ortiz fell on the ground and dropped her cell phone. According to Ortiz, defendant then straddled her on the floor and began "punching her." Ortiz then kicked and punched him to fight back but she was being assaulted on the floor and it was "hard to defend herself. Ortiz had her arms up and pushed and straddled the defendant in order to stop him from beating him. According to Ortiz, she asked the defendant "Why are you putting your hands on me?"

         The defendant then again exited that Newark house. The defendant threw Ortiz's cell phone down the street and yelled to Ortiz "Call the cops now". Defendant then exited the side of his motor vehicle and allegedly slammed Ortiz's body on the road. The defendant kept punching and kicking Ortiz on the street. Defendant then entered into his motor vehicle and drove away. Ortiz followed the defendant on 1-95 and exited 7-A. The defendant traveled into the Capital Parking Garage where he worked. Ortiz followed him directly through the turn-styles. When they met again, defendant allegedly grabbed Ortiz by her arms and pulled her out the car and "began punching her". Ortiz testified she stated "I'm going to call the cops." The defendant then got into his motor vehicle and drove away again.

         At this point, Ortiz traveled back to 620 W. 9th Street, Wilmington and called the police by dialing 9-1-1.

         Ortiz's parents picked her up four (4) hours later with a U-Haul and Ortiz moved out of the defendant's residence at 620 W. 9th Street.

         On July 5, 2017 Ortiz testified her 'head hurt", her "body ached", her "eyes hurt", her head was "pounding", her knees and legs "hurt" and that she had a large bruise on the top of her head. Joint Exhibits 2-17 were shown to Ortiz. The summary of those exhibits is outlined below.[1]

         Ortiz sought medical treatment due to the tender spot on her head. A Wilmington Police Department female police officer took the pictures previously marked joint Exhibit 1-18. Ortiz testified she had "constant migraines" and "pressure on the top of her head"; her "knees hurt" and her hip was "throbbing". According to Ortiz, none of these bruises were present prior to the night in question when the defendant subsequently allegedly punched and assaulted her.

         Ortiz testified she then drove to New Jersey because she was embarrassed to go to the Wilmington Hospital because she "worked there." Ortiz was subsequently examined by a nurse in New Jersey.

         On cross-examination Defense counsel presented to Ortiz Defendant's Exhibit 1, which was moved into evidence. It is a photo taken of Ortiz on July 6, 2017, which included her face which the defense contends indicated there were no bruises or marks on her face.

         On cross-examination, Ortiz testified she and the defendant were drinking at the pool party. Ortiz testified defendant's sister helped her "break into the home" to get her property and the defendant, when he subsequently arrived stated "I don't need this anymore." Ortiz admitted she grabbed the defendant to prevent him from leaving the residence. Ortiz also agreed she sent an email to the defendant that stated "Thank you, you piece of shit." The email also indicated, "I will be there bright and early in the morning." Ortiz, according to the defendant, called the Sheraton at 3:00 AM and kept following the defendant throughout the entire night. Ortiz conceded her emotions "were high" when she arrived at the Newark house and saw the "other woman". Ortiz also testified the defendant punched her in the face with a closed fist and then she told him "I'm calling the cops." Ortiz also testified on cross-examination that she moved out on July 4, 2017 with assistance from her mom and sister using a rented U-Haul.

         On redirect examination, Ortiz testified Defense Exhibit 1 has a "poor shade" and the photograph didn't show the actual physical marks on her face.

         Officer Dominic Brown ("Officer Brown") was sworn and testified. Officer Brown is a Wilmington Police officer who has been employed for three (3) years with the Wilmington Police Department. Officer Brown has been in the particular Enforcement Unit for seven (7) years with the Wilmington Police Department. She handles domestic incidents and criminal complaints. On July 6, 2017 Officer Brown was working when Ortiz came into the Wilmington Police Station. He interviewed Ortiz. Ms. Ortiz was then photographed by a female police officer in accordance with Wilmington Police Department policy. Officer Brown subsequently complied a police report and a female police officer, Officer Mobley, actually took the photos of Ortiz. According to Officer Brown, Ortiz freely spoke with him and explained what happened during the evening. Officer Brown testified that had he known that many of the events occurred in question outside Wilmington, he believed matter would have been within the Delaware State Police jurisdiction or New Castle County Police.

         On cross-examination Officer Brown testified he completed the Police Report and Officer Mobley took the photographs at approximately 9:30 on July 6, 2017. According to Officer Brown, defendant punched Ortiz with a closed fist. He was told it was disputed verbal disagreement that ended up in actual violence between the parties.

         On redirect examination, Officer Brown testified Ortiz was in a "very emotional" and "irate" and that "a lot was going on." Officer Brown also indicated Ortiz was "very emotional" when she entered into the ...

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