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Buckham v. State

Supreme Court of Delaware

April 17, 2018


          Submitted: January 24, 2018

          Court Below: Superior Court of the State of Delaware Cr. ID No. 1509012122A & B

         Upon appeal from the Superior Court. REVERSED and REMANDED.

          Christina L. Ruggiero, Esquire (argued), Eugene J. Maurer, Jr., Esquire, Eugene J. Maurer, Jr., P.A., Wilmington, Delaware, Counsel for Appellant.

          Abby Adams, Esquire (argued), Department of Justice, Georgetown, Delaware, Counsel for Appellee.

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices.


         David Buckham was convicted at trial of assault in the first degree and related charges in connection with a shooting. His appeal presents two questions of criminal procedure. First, we consider the propriety of the trial court's decision to call a recess at the State's request so that one of the State's witnesses, who was in the middle of testifying-and in the middle of recanting a statement he had given to investigators before trial-could consult with his lawyer. Buckham-who was forbidden by the trial court from cross-examining the witness about what transpired during the consultation-contends it was reversible error to allow it and a violation of his confrontation rights to bar him from cross-examining the witness about it.

         Second, we consider whether it was plain error for the trial court to uphold a warrant that authorized a search of "[a]ny and all store[d] data" on Buckham's cell phone for any evidence of any kind that might link him to the shooting. The trial court sustained the warrant despite recognizing that the only nexus the warrant application established between his phone and the shooting was that the phone might have contained GPS data that might have been useful to investigators. The search instead turned up some arguably incriminating Facebook messages, and Buckham contends that they should have been suppressed. He did not raise this precise contention below, but he contends that the mismatch between the scope of the warrant and the probable cause the trial court found to support it was so apparent, and that the warrant was so lacking in particularity, that upholding the warrant was plain error.

         We agree that the trial court's decision to allow the State's witness a mid-testimony consultation with counsel was reversible error and that the decision to uphold the warrant-and admit the Facebook messages-was plain error. We therefore reverse Buckham's convictions and remand for a new trial.



         During the early morning hours of August 3, 2015, two Wilmington police officers responded to a shooting. They found Gerald Walker-apparently shot in his upper abdomen-lying in a fetal position in the entranceway of a residence. Walker was in pain, but lucid, and he told the officers that he had been shot by the occupants of a dark-colored SUV. He said that three or four shots had come from the front passenger side of the vehicle, but he was unable to see the occupants because the vehicle's windows were heavily tinted. The police did not locate any witnesses or recover any shell casings or other physical evidence from the scene.

         With no identification of the perpetrators and no physical evidence, the investigation languished into September. Then, halfway through the month, a 911 caller reported that a person who had previously shot him had just driven past his house. One of the officers who responded was one of the two who had responded to the August 3 shooting, and when he arrived on the scene, he discovered that the 911 caller was none other than Gerald Walker. Walker reported that he and his fiancé were sitting on the steps of her home when the same vehicle from the August 3 shooting drove by. He identified the driver as David Buckham and the passenger as Imean Waters and said that as the two drove by, one or both of the them said, "We 're on your top"-meaning that they were still after him.[1] Walker also claimed that Waters waved a gun at him to drive the point home.

         The officer also had a brief conversation with Walker about the August 3 shooting. Despite telling the officers on the night of the shooting that he had not been able to get a look at the occupants of the vehicle, Walker now told the officer definitively that Buckham was the assailant. According to the officer's recollection of the conversation, Walker also told him that Buckham had exited the vehicle and fired the shots from there, not while concealed behind the vehicle's tinted windows.

         Later that day, a detective interviewed Walker, and Walker again blamed the shooting on Buckham. He told the detective that Waters was driving and that when Waters said "hit him, " Buckham started shooting.[2] But while he was steadfast that Buckham was the shooter, he admitted that he did not see the shots being fired or "even see the gun"-he "just heard the shot."[3]

          Based on what Walker had told them, law enforcement secured arrest warrants for Waters and Buckham. Waters was arrested that same day, and he too was interviewed by the police. When asked about the shooting on August 3, he admitted that he and Buckham had driven past the site of the shooting, but he initially claimed that he had dropped Buckham off on the side of the road and heard gunshots only after driving away. But after being pressed on his story, Waters told the police that Buckham shot Walker from the passenger seat of his vehicle.

         Based on the information provided by Walker and Waters, police secured a warrant for Buckham's arrest. They were unable to locate him, and it was not until approximately six weeks later that he was arrested in a library in New Jersey by federal law enforcement officers. His cell phone was seized incident to his arrest, and it was turned over to the Wilmington police.

         The gun used in the shooting has never been recovered. The inability of the police to find the gun or to ascertain where Buckham had been residing during the six weeks they had been searching for him prompted them to seek a search warrant for his cell phone. They apparently thought that they may be able to find GPS location data on the phone, which could reveal where Buckham had been residing and, in turn, might lead to the discovery of the gun.

         The warrant they obtained for Buckham's phone authorized them to search not just for GPS location data, but for "[a]ny and all store[d] data contained within the internal memory of the cellular phones [sic]." It is unclear from the record whether the police found any GPS data and, if they did, whether they actually used it to search for the gun. What is clear is that they found and read private messages Buckham had exchanged with various people through the Facebook application on his phone, some of which were later introduced at trial.


         Buckham was charged with a host of offenses, the most serious of which was attempted murder in the first degree. Not surprisingly, at center stage at his trial were Walker and Waters, the only percipient witnesses (other than, allegedly, Buckham) to the shooting. Neither wished to be there.

         Walker appeared at trial only after being arrested and held on a material-witness warrant. When he was called to the stand, his testimony diverged yet again from the previous accounts he had given to the police. Contrary to his claim that Buckham had shot at him from outside the vehicle, Walker testified that Buckham "started shooting out of the window."[4] The prosecutor sought clarification-asking him, "what window?"-but Walkers reiterated that Buckham shot from through the "passenger side window."[5] And despite telling the detective that he had not seen the weapon that had been used to shoot him or who fired it, Walker testified that he had seen "a little black gun" in Buckham's hand just before the shooting started, and he testified, unequivocally, that Buckham was the shooter.[6] He also disclosed, for the first time, that a "senior citizen" named "Mr. Mel" was sitting outside with him when Waters and Buckham pulled up in the SUV and presumably witnessed the entire encounter. As if these inconsistencies did not provide sufficient fodder to question Walker's credibility, he announced-in open court-that defense counsel's questions were "aggravating" him, that he was "just going to keep answering questions with, 'I don't know'" because he was tired of answering them, and, at one point, that he intended to "plead the Fifth to every question from now on" (which, after the jury was excused, prompted a warning of contempt from the trial judge).[7]

         The prosecution then called Waters, whose testimony was more problematic. Before Buckham's trial, Waters had agreed to plead guilty to conspiracy in the second degree (in connection with the allegedly menacing drive-by that occurred in mid-September) in exchange for testifying at Buckham's trial. But despite having admitted on the day of his arrest that Buckham shot Walker from the passenger seat of his vehicle, Waters disavowed even having seen Walker that day:

Q: So, with respect to the August 3rd, 2015, shooting, what do you remember about that day?
A: The only thing I remember was me and Buckham riding around.
I didn't see no gun, or nothing.
Q: Do you remember seeing [Walker]-
A: No.[8] After a brief sidebar conference, the prosecutor attempted to clarify Waters' testimony:
Q: . . . . So, bringing you back to when you stated that you and Mr. Buckham were driving around on August 3rd, 2015.
A: Yes.
Q: And I asked you did you see [Walker] that day.
A: Yes. I hadn't seen him.
Q: So, is it your testimony today that you did not see [Walker] on August 3rd, 2015?
A: No, I did not.
Q: And, Mr. Waters, on August 3rd, 2015, did you hear gunshots that day?
A: No.[9]

         That prompted the prosecutor to request another sidebar conference at which she told the court, "Mr. Waters is facing significant issues, not only by violating the cooperation agreement, but also by potentially perjuring himself . . . [and] he may want to speak to his counsel at this point."[10] Over Buckham's counsel's objection, the trial judge agreed. Buckham's counsel asked whether he would be permitted to cross-examine Waters about the substance of the conversation, but the trial judge answered in the negative:

Well, if you are asking whether or not during the break that he [spoke] with counsel, I think I would let you ask that question.
Obviously, exploring with him what counsel maybe told him would be a violation of the attorney/client privilege and I wouldn't allow you to pursue that. But, I would allow you to say, When you took the break did you have an opportunity to speak with [your lawyer?][11]

         After the consultation took place, the trial judge reiterated that he would not allow Buckham's counsel "to explore the contents of the discussion because of the privileged situation of that conversation."[12]

         Not surprisingly, Waters' testimony took on a different tenor when he returned from speaking with his lawyer. When asked again whether he remembered anything about August 3, the day of the shooting, this time he responded, "Not really."[13] And when asked if he remembered the day Walker was shot, he acknowledged only that he "heard about it."[14] The prosecutor then asked him to confirm that he had told the police on the day of his arrest that he had been present at the shooting, but he denied having any recollection of that either, telling the prosecutor, "I was under the influence. I don't remember."[15] The State then terminated its direct examination so that it could lay the foundation for admitting the statement Waters gave to police on the day of his arrest in lieu of any further live testimony.

         Buckham did not testify. He was ultimately acquitted of attempted murder, but found guilty of the lesser-included offense of first-degree assault and a number of other lesser charges. At a bench trial that followed, he was convicted of possession-of-a-firearm-by-a-person-prohibited and possession-of-ammunition-by-a-person-prohibited charges as a result of the jury's verdict. He was sentenced to twenty-six years of incarceration, suspended after sixteen years.

         II Buckham contends that the trial judge should not have allowed Waters to confer with his lawyer during his direct examination and made matters worse by restricting Buckham's cross-examination after the consultation took place. He contends that the former was an abuse of discretion and that the latter infringed his right of confrontation, both of which, he says, require reversal.

         A It is well settled that the trial judge is vested with wide discretion in regulating the conduct of the trial, [16] including "the mode and order of interrogating witnesses and presenting evidence."[17] That includes the "broad power to sequester witnesses before, during, and after their testimony."[18] The "heartland" of witness sequestration concerns whether witnesses should be barred from hearing the testimony of other witnesses before their own[19]-a method of ferreting out false testimony that has "ancient" roots[20]-but the concept also extends to whether a witness should be barred from discussing his testimony with others once questioning has commenced.[21] The concern, of course, is that permitting mid-testimony consultations may lead to "improper attempts to influence the testimony in light of the testimony already given."[22]

         Whether and how a witness should be sequestered is a matter committed to the trial judge's discretion. Even "[a] criminal defendant, " like Buckham, "has no constitutional right" to any particular type of witness sequestration, [23] and "the failure to sequester prosecution witnesses does not necessarily violate any constitutional right of the defendant to cross-examine those witnesses, or to a fair trial generally."[24]In Delaware, even a request for a "heartland" sequestration order-an order barring witnesses from hearing the testimony of other witnesses-is not granted as of statutory right, as it is in some jurisdictions.[25] The decision instead rests comfortably in the trial judge's authority to control the mode of witness interrogation. The same is true for a "decision to grant a recess and allow a conference between a lawyer and a testifying witness."[26] The scenarios where a mid-testimony consultation might be requested are too varied for there to be a "hard and fast rule governing every contingency."[27]

         But a trial judge must exercise this discretion in service of the trial's truth-seeking function. Trial judges are bound to use their power to control how witnesses are interrogated to "make the interrogation and presentation effective for the ascertainment of truth, "[28] and allowing a witness to consult with counsel in the midst of questioning is fraught with the risk of interfering with the truth-seeking process. As we recognized in the context of a mid-cross-examination consultation-which is not far afield of these circumstances, given how Waters' testimony was going south for the prosecution-allowing a witness who is in the middle of his testimony to consult with his counsel tends to undermine the integrity of the trial process:

It is antithetical to the process of truth-seeking that any witness be permitted to consult with counsel during cross-examination to be "coached" on what to say, or not say, or how-to-say-it, or how to control or "put a better face on" testimonial damage already done.[29]

         Put simply, "the truth-seeking function of a trial will most often be best served by requiring that the witness undergo direct questioning and cross-examination without interruption for counseling."[30] Because of the "tantalizing potential for misconduct" they pose, [31] mid-testimony conferences are "an extremely dangerous practice."[32] No trial judge should allow one without carefully considering whether there is a genuine need for it-one that rises above a bare desire to coach a struggling witness-and, even if there is, whether the risk of coaching is simply too great to allow it.[33]


         The decision to allow this conference suffered from a number of problems. The justification for it was that Waters' testimony, which flatly contradicted the statement he had given to the police, may have put him at risk of perjury or a breach of his plea agreement and that he should have a chance to discuss those risks with his counsel before going any further. But the request for the conference did not come from Waters or even from his own lawyer, who was present in the courtroom. The request came from the prosecutor, just as Waters' testimony started going sideways.[34] There is naturally a greater risk that a mid-testimony conference will be used for coaching when the request comes in the midst of damaging testimony-and comes from the advocate whose case it is damaging.

         These features set this case apart from those where courts have permitted timeouts in the middle of testimony for more benign reasons, like United States v. Loyd, [35]where a prosecutor-who had met a witness for the first time only thirty minutes before trial because the witness was under federal protection-quickly realized that he had not had enough time to speak with the witness to properly tailor his examination and was granted a recess to have a chance for a more thorough interview, or Frierson v. State, [36] where the court granted a prosecutor's request for a recess during the direct examination of a rape victim so that the prosecutor could help her regain her composure. In this case, the very purpose of the recess was to allow Waters to discuss with his lawyer the testimony already given and to consider whether he should stick by it. As the trial judge put it, he was granting the recess to "have counsel speak with him, just to make sure that they are all on the same page."[37]

         Compounding these problems was the trial court's decision to seal the conversation off from cross-examination. Through many of the cases where mid-testimony consultations were sustained runs a common thread: the opposing side was permitted a full opportunity to inquire into what transpired during the consultation.[38] "Skillful cross-examination" can expose a coached witness, [39] and if a court is convinced that there is a legitimate need for a mid-testimony consultation, making the consultation fair-game for inquiry lowers the danger that it will corrupt the proceedings. Worse still, the trial court informed the parties that the consultation would be off-limits for cross-examination before it took place. In many of those cases where consultations have been upheld, the trial judges warned the parties in advance that whatever transpired would be fair-game for inquiry, which can be an effective prophylaxis against coaching. But here, if the temptation to coach Waters was brewing, the trial court's advance ruling telegraphed that there would be no chance for Buckham's counsel to uncover it.

         But not all of the circumstances cut against the trial court's decision. The fact that the lawyer the court was granting Waters a chance to confer with was his own- and not the prosecutor-reduced the risk that the recess would provide the State with an opportunity coach him on his testimony.[40] And the justification the prosecutor offered for the recess-that Waters' testimony could be exposing him to criminal prosecution-was not so unfounded as to be nothing more than a pretext to get him off the stand and into a coaching session. Waters had represented as part of his plea deal that the statement he had given to investigators prior to trial was true, so if he had remained steadfast in his repudiation of that statement as he had started to do before the prosecutor asked for a recess, he risked breaching his cooperation agreement and exposing himself to further criminal prosecution for the shooting.[41]Reversing course and standing by his earlier statement would not have been a risk-free proposition either. If the statement he had given to investigators had been false, reaffirming that statement on the stand would be perjury. The risks Waters faced were varied enough-and real enough-to give credence to the prosecutor's suggestion to let him discuss these scenarios with his lawyer before going any further.

         Aside from concerns about Waters, we have recognized that a lawyer who realizes her client is about to commit perjury has an ethical obligation to try to dissuade her client, and we have suggested that if it happens while the client is on the stand, she may be justified in making a "forthright application to the court for a special ruling permitting limited consultation, " and the court may be justified in granting it.[42] Waters, of course, was not the prosecutor's client, but the ethical obligation to prevent a fraud on the court applies with no less force to any other witness that a lawyer calls.[43]

         Whatever the merits of allowing the conference, there is no question that it cast a "cloud over the fairness of the government's trial behavior, "[44] which illustrates why granting a private, mid-testimony conference treads on treacherous ground. But we need not resolve whether that decision was an abuse of the trial court's discretion, because after ...

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