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State v. Johnson

Superior Court of Delaware

July 25, 2018


          Date Submitted: April 26, 2018

         Upon Defendant Demonte Johnson 's Motion for New Trial: DENIED

          Matthew Frawley, Esquire, and Eric Zubrow, Esquire, Department of Justice, Carvel State Office Building, Attorneys General.

          John A. Barber, Esquire, Law Office of John A. Barber, 24B Trolley Square, Wilmington, Delaware; Brian J. Chapman, Esquire, Law Office of Brian J. Chapman, Attorneys for Defendant.




         Demonte Johnson was charged with Murder First Degree, Possession of a Firearm During the Commission of a Felony ("PFDCF"), and Possession of a Firearm by a Person Prohibited ("PFBPP") in connection with the May 27, 2014 shooting death of Alphonso Boyd. Johnson's first trial resulted in a mistrial. During the course of his second trial, the State presented three eyewitnesses who identified Johnson as the shooter, two statements made by Johnson in which he admitted to shooting Boyd, [1] expert witness testimony placing Johnson's cell phone at the scene of the crime, [2] and Johnson's prison phone calls during which the State contended he coordinated plans in an effort to prevent a key witness from testifying.[3] The jury found Johnson guilty of Murder First Degree, PFDCF, and PFBPP. Before the Court is Johnson's Motion for New Trial pursuant to Superior Court Criminal Rule 33.[4]For the reasons that follow, Johnson's Motion is DENIED.


         Johnson claims his right to a fair trial was unfairly prejudiced as a result of: (1) Batson violations;[5] (2) improper questioning regarding Johnson's post-arrest silence; (3) prosecutorial misconduct stemming from the State's cross-examination of Johnson about police reports; and (4) prejudicial testimony by Joshua Hinton.[6]Johnson argues the Court should grant him a new trial in the interests of justice.[7]

         In opposition, the State argues that the issues Johnson raises in his Motion were properly resolved during the trial. First, with regard to the Batson challenge, the State argues it articulated race-neutral decisions for striking specific jurors at trial.[8] Second, with regard to the questioning about Johnson's post-arrest silence, the State argues that the curative instruction the Court issued to the jury cured any potential prejudice to Johnson.[9] Third, with regard to the cross-examination of Johnson about police reports, the State contends it was not improper and, even if it was, this was not a close case, a stipulation read to the jury made clear that Johnson had not reviewed police reports, [10] and the Court issued curative instruction to the same effect.[11] Fourth, the State maintains that Hinton's comments were not harmful to Johnson because it was not a close case, and Johnson failed to make a timely objection.[12]


         Superior Court Criminal Rule 33 provides, "[t]he Court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." A new trial is warranted "only if the error complained of resulted in actual prejudice or so infringed upon defendant's fundamental right to a fair trial as to raise a presumption of prejudice, "[13] and the grounds for the new trial must have been asserted during the original trial.[14] Because the trial judge is in the best position to measure the risk of prejudice from events at trial, the decision to grant a new trial in the interest of justice rests in the trial judge's "very broad discretion."[15]


         A. Batson Challenge

         Johnson argues the prosecutor exercised peremptory challenges during jury selection in a racially-discriminatory manner, thereby violating Batson v. Kentucky.[16] In response, the State argues that it struck the particular jurors for race-neutral reasons.[17] Racial discrimination injury selection violates a defendant's right to a fair trial and offends the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.[18] "Defendants are harmed, of course, when racial discrimination injury selection compromises the right of trial by impartial jury, but racial minorities are harmed more generally, for prosecutors drawing racial lines in picking juries establish 'state-sponsored group stereotypes rooted in, and reflective of, historical prejudice."'[19]

         In Batson, the prosecutor used peremptory challenges to strike four African American jurors, resulting in a jury composed of only Caucasian jurors.[20] The United States Supreme Court held that a prosecutor may exercise peremptory challenges '"for any reason at all, as long as that reason is related to his view concerning the outcome' of the case to be tried [but] the Equal Protection Clause forbids the prosecutor to challenge jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant."[21] In so ruling, the U.S. Supreme Court established the following three-part analysis:

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race.... Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question.... Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination....[22]

         Here, Defense Counsel made a Batson challenge after the prosecutor struck three African American women jurors: Jurors 5, 7, and 4.[23] Based on these strikes, the Court found Johnson had made the requisite prima facie showing. "The second step of [the Batson analysis] does not demand an explanation that is persuasive, or even plausible."[24] "[I]f the reason is not discriminatory and relates to the outcome of the case to be tried, it suffices."[25] In the case subjudice, the Court found that the prosecutor offered a race-neutral reason for each peremptory challenge at issue. At sidebar, the prosecutor explained he struck Juror Number 5 because:

[S]he was giving the State ugly looks while she was in the box. [The State] had no information about her employment on the questionnaire. And her dress, including wearing a hat in the courtroom, was concerning to the State in terms of respecting the process.[26]

         The prosecutor explained he struck Juror Number 7 because she "expressed an inability to understand voir dire, which gave the State some concern about her ability to understand some complex things in this trial."[27] The prosecutor explained he struck Juror Number 4 because there was little "information on her juror questionnaire. So the State [had] no idea [] about her background, her employment, or anything like that."[28] According to the State, Jurors Number 5 and 4 were the only jurors on the panel who did not indicate they were retired, and they failed to provide valuable employment information.[29] The Court found at trial that the prosecutor articulated race-neutral explanations.

         "[A]fter the prosecutor offers a race-neutral explanation, the burden shifts back to the defendant to prove purposeful discrimination."[30] When the Court asked for Defense Counsel's response to the State's race-neutral explanations, Defense Counsel responded:

Your Honor, I'm not sure lack of information about a certain juror constitutes a reasonable basis to strike the person when it just appears that -1 mean, they're a person of color. And the State's operating with more information in this case, they have criminal rap sheets. I didn't hear of any convictions of arrests or anything like that.[31]

         In his Motion, Johnson argues the State's explanations for the strikes, "viewed in toto" fail to support a race-neutral basis.[32] With regard to Juror Number 5, Johnson argues that the fact her profile included information on her employment, marriage status, gender, race, and education undermines the State's race-neutral explanation.[33] Johnson argues Juror Number 7 demonstrated her ability to understand the case during an exchange with the Court at sidebar, and Juror Number 4's profile included enough data to contradict the State's representation that it contained "zero information."[34]

         "The question of intentional discrimination is a pure issue of fact, which must be determined by the Court."[35] "The Court must evaluate all evidence introduced by each side tending to show that race was or was not the real reason for the State's exercise of its peremptory challenges and to determine whether the defendant has met his burden of persuasion as mandated by Batson"[36] In addition to determining the credibility of the prosecutor's representations, the Court may consider:

(1) The percentage of African American veniremembers who are the subject of the prosecutor's peremptory strikes;
(2) side-by-side comparisons of some black venire panelists who were struck and white panelists who were allowed to serve in order to determine whether a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve; (3) the prosecutor's use of procedural move African American veniremembers to the back of the panel where they are less likely to be selected; (4) evidence of a contrast between the prosecutor's voir dire questions posed respectively to black and nonblack panel members...and (5) evidence of a systematic policy or practice within the prosecutor's office of excluding minorities from jury service.[37]

         In addition, "the prosecution's decision not to use an available challenge against minority veniremen is also a relevant circumstance to be weighed."[38]

         After reviewing the "totality of the relevant facts," the Court determined then, and now, that the State's explanations for the peremptory challenges at issue demonstrate "permissible racially neutral selection criteria."[39] The prosecutor offered credible explanations to this effect, and other considerations support this conclusion. Not only were the State's explanations at trial specific to the individual jurors and related to the outcome of the case, but the State used only half of its peremptory challenges to strike African American jurors.[40] The State struck a Caucasian juror for his response to voir dire, the same reason it struck Juror Number 7.[41] And the State did not exercise two of its peremptory challenges, despite three African Americans remaining on the jury.[42] The ultimate composition of the jury -nine Caucasians, two Asians, and one African American, with two African American and two Caucasian alternates - although never dispositive, also supports the Court's finding.[43] When the burden shifted back to Johnson, Defense Counsel appeared to base its Batson challenge on its belief that the State exercised strikes based on juror criminal records which Johnson could not access. This was an incorrect assumption.[44]

         Johnson has failed to meet his burden. He has not offered proof of purposeful discrimination, or evidence of a "systematic policy within the prosecutor's office of excluding minorities from jury service." For the foregoing reasons, the Court finds the State properly exercised its peremptory challenges. Defendant's Motion for New Trial based on purported Batson violations is DENIED.

         B. Prosecutor's Questioning About Johnson's Post-Arrest Silence and Access to Police Reports

         The Court reviews timely objections under a harmless error standard of analysis.[45] Under harmless error review, the Court first reviews the record to determine whether the prosecutor's actions were improper.[46] If no misconduct occurred, the analysis ends.[47] If misconduct has occurred, then the Court must determine "whether the misconduct prejudicially affected the defendant."[48] At trial, Johnson timely objected to the prosecutor's questioning about his post-arrest silence and access to police reports.

         Johnson asserts the State violated his due process rights when the prosecutor asked him about "a third opportunity" he had to talk to the police following his arrest.[49] Johnson claims that by asking this question, the State impermissibly used his post-arrest silence to impeach a statement he made at trial.[50] The State argues that the question did not violate Johnson's Fifth Amendment right to remain silent because it did not highlight his silence, Defense Counsel's prompt objection quickly ended the inquiry, and the Court's immediate curative instruction resolved the issue.[51]

         Johnson argues Bowe v. State is applicable here.[52] In Bowe, a defendant (who was convicted of Attempted Robbery Second Degree and Resisting Arrest) claimed he was denied due process of law by prosecutorial misconduct in the form of impermissible cross-examination about his post-arrest silence.[53] At trial, the prosecutor in Bowe engaged in a deliberate and "extensive line of questioning in which the defendant's pretrial silence [and incarceration] was highlighted through ridicule."[54] The defense counsel objected only to the prosecutor's improper reference to the defendant's incarceration.[55] The trial judge, recognizing the prosecutor's improper line of questioning and responding to the objection, issued a curative instruction that cautioned the jury to "disregard the fact of [the defendant's] whereabouts."[56] On appeal, the Delaware Supreme Court emphasized the prosecutor's attempted impeachment of the defendant through mention of the defendant's post-arrest silence, and held such questioning to be "prosecutorial overreaching" that is incompatible with the due process afforded to all defendants under the Delaware Constitution.[57] In discussing the potential impact of the prosecutor's impermissible questions in Bowe, the Delaware Supreme Court noted:

In this case there were no independent eyewitnesses to the altercation between the defendant and the alleged victim. Thus the jury was asked to choose between two conflicting and uncorroborated versions of the incident. In this context impeachment assumes a critical role and to the extent the prosecutor's questioning subjected the defendant to improper impeachment it had the potential to affect the outcome of the trial.[58]

         The facts here differ significantly from those in Bowe. First, the prosecutor here asked one impermissible question: "You actually had a third opportunity to talk to Detective Curley, too; right?"[59] Second, as the Court pointed out at sidebar, Johnson's answer essentially "impeached" the State's credibility and shifted the jury's focus to the State's misstatement, not the question.[60] Third, assuming arguendo that the jury did infer from the question that Johnson did not avail himself of a third opportunity to speak to the police, based on the evidence in the case, the jury could have reasonably inferred it was because Johnson had already spoken voluntarily to the police twice, or, based on Johnson's answer, they could have reasonably inferred he did not have the opportunity suggested by the prosecutor because he was not arrested by Detective Curley on the occasion in question.[61]Fourth, the "context" in Bowe was two conflicting and uncorroborated versions of the incident. Here, in sharp contrast, three eyewitnesses testified that Johnson was the shooter, the jury heard testimony from two more witnesses who testified Johnson admitted to shooting the victim, and expert witness testimony placed Johnson's cell phone at the scene of the crime.[62] Fifth, the Court immediately instructed the jury to "completely disregard" the prosecutor's question about Johnson's post-arrest silence:

THE COURT: Ladies and gentlemen of the jury, I am striking that last question asked by [the prosecutor] and I am striking the answer, the last two questions relating to opportunities to speak to police.
I will remind you that in this trial the defendant has no obligation to do anything. Someone is presumed innocent unless and until proven guilty. And I want you to completely disregard the question and any inference you might have drawn from the question that [the prosecutor] asked about a third opportunity to speak to the police. That was an impermissible question.
Do you understand?
THE JURY: Yes.[63]

         A trial judge's prompt curative instructions are presumed to cure error, and juries are presumed to follow them.[64] The Delaware Supreme Court has held that while the State "may not put a penalty on the exercise of a constitutional right," not "every reference to the exercise of the right to remain silent mandates reversal."[65]

         In United States v. Hale, the U.S. Supreme Court held that evidence of post-arrest silence is so ambiguous that it lacks significant probative value and must therefore be excluded.[66] It is well-settled under Delaware law that "the prosecution may not put a penalty on the exercise of a constitutional right."[67] In other words, the State may not comment on a defendant's exercise of the right to remain silent.[68]Here, the prosecutor asked Johnson "Okay. You actually had a third opportunity to talk to Detective Curley, too; right?"[69] Such inference is equivalent to the State commenting on Johnson's exercise of his right to remain silent.

         1. Hushes Test - Question About Johnson's Post-Arrest Silence

         To determine whether an impermissible question prejudiced Johnson's right to fair trial, the Court applies the test identified in Hughes v. State[70] In Hughes, a prosecutor impermissibly stated in his closing argument that the defendant admitted to having blood on his hands after a murder, although the defendant never actually admitted that fact.[71] The defendant in Hughes was convicted of Murder First Degree. On appeal, the Delaware Supreme Court reversed the conviction, finding that because the prosecutor's error addressed an issue central to a close case, it affected the defendant's substantial rights.[72]

         In so ruling, the Hughes court articulated a three-part test to determine whether the fairness of the trial was adversely affected by prosecutorial misconduct: (1) the centrality of the issue affected by the alleged error; (2) the closeness of the case; and (3) the steps taken to mitigate the effects of the alleged error.[73] The Hughes factors are not conjunctive, i.e., one factor may be determinative.[74] The Court applies the test in a contextual, factually-specific manner.[75]

         Regarding the first factor, the centrality of the issue affected by the error, the prosecutor's single, brief question about whether Johnson refused to speak with police after voluntarily speaking with police on two prior occasions was not central to the case, particularly given the wealth of evidence introduced by the State. This factor weighs in favor of harmless error.[76]

         With regard to the second factor, the closeness of the case, the Court does not find that this case was a close case. It was far from it. Three eyewitness testimonies identified Johnson as the shooter. Aiun-Yea Chambers, one of those eyewitnesses, testified she heard an argument between Johnson and Boyd, and had no doubt the shot that killed Boyd came from Johnson.[77] Despite Defense Counsel's best efforts to impeach her, Chambers' testimony was credible and compelling. The State's case also included Johnson's admissions to witnesses Shakia Hodges and Joshua Hinton that he shot Boyd, expert witness testimony placing Johnson's cell phone at the scene of the crime, and Johnson's prison phone calls during which the State contended he coordinated plans to prevent Shakia Hodges from testifying.[78] This factor weighs heavily in favor of harmless error.

         Regarding the third factor, the steps taken to mitigate the effects of the error, the Court took sufficient steps to avoid prejudice when it immediately instructed the jury to completely disregard the question and any inference drawn from the prosecutor's improper question.[79] Furthermore, any potential prejudice was mitigated when Johnson testified at trial that he voluntarily spoke to the police about the incident twice before his arrest.[80] And the jury was aware that although Johnson had a constitutional right not to testify, he voluntarily did so.[81] After considering the Hughes factors, the Court finds that the alleged prosecutorial misconduct, which was objected to in a timely manner, did not amount to more than harmless error. The question about Johnson's post-arrest silence did not prejudicially affect Johnson's right to fair trial, and thus a new trial is not required under the Hughes test.

         2. Hughes Test - Comment About Johnson's Access to Police Reports

         Johnson next contends the State engaged in prosecutorial misconduct by misrepresenting to the jury that he had reviewed copies of police reports prior to testifying at trial.[82] During cross-examination, the prosecutor held up a file and asked Johnson, "So you and your attorneys have received police reports documenting everything that...." Defense Counsel objected before the prosecutor finished his question. According to Johnson, the question was an "assault[] on [his] credibility" based on inaccurate information because he was not privy to the police reports.[83] Johnson claims this misrepresentation prejudiced the jury and caused jurors to draw the conclusion that Johnson was able to tailor his trial testimony to documents he never saw.[84] The State contends it was merely exercising its right to impeach Johnson's trial testimony that was "conveniently consistent with the State's cell-tower evidence," but inconsistent with prior statements to police.[85] The State argues there was little or no prejudice because the prosecutor promptly corrected his misstatement, the Court issued an immediate curative instruction to that effect, and this was not a close case.[86]

         Johnson argues that Baker v. State is instructive on this issue.[87] The Court disagrees. In Baker, a daughter accused her father of sexual abuse and rape.[88] This was a "she said, he said" case, there was no physical evidence, and many defense witnesses testified that the alleged victim's testimony seemed inconsistent.[89] There were no accusations made by any of the father's other children, and several of his other children testified that the complaining daughter was untruthful.[90] The father's other daughters also testified that he never sexually abused them.[91] At trial, the prosecutor questioned the father as to his familiarity with sex offenses. The defense counsel "appeared to object on the basis that the question was irrelevant and beyond the scope of direct."[92] At sidebar, the trial judge in Baker suggested that the prosecutor avoid the question, and prosecutor resumed his cross-examination.[93] The trial judge did not give a curative instruction, strike the question, or sustain the objection in the jury's presence.[94] Baker was convicted of Second Degree Rape and two counts of unlawful sexual contact.[95] On appeal, Baker argued that the prosecutor engaged in misconduct that unfairly affected the outcome of his trial by asking questions that insinuated he had prior "familiarity with sex offenses."[96] The Delaware Supreme Court applied the Hughes[97] and Hunter[98] tests to determine whether the prosecutor's conduct prejudicially affected Baker's substantial rights. Given the closeness of the case and the fact that the defendant's credibility was a critical issue, [99] the Supreme Court held that the prosecutor's unfounded question "permit[ted] the jury to draw an impermissible conduct-from-character inference that [was] entirely unjustified, "[100] and resulted in reversible error. The ruling noted that the prosecutor's insinuation "may have suggested that the prosecutor had knowledge that Baker had 'some familiarity with sex offenses' when in fact the prosecutor admitted he had no good faith basis in fact to phrase the question as he did."[101]

         This case is very different from Baker. Here, the State presented a wealth of evidence against Johnson, including the testimony of three eyewitnesses to the shooting.[102] And, unlike in Baker, here the Court struck the improper question, instructed the prosecutor to advise the jury he made a mistake, and immediately issued a curative instruction:

THE COURT: I don't even need to hear objection. You've now held up that file and suggested he's been privy to discovery and the evidence. You've now put in the jury's mind potentially that he's sitting here and won't tell the police the truth, even though he knows the truth and he had an obligation to come forward. All that flows from where you're about to head down. So you better get off this track.
[PROSECUTOR]: Okay. Understood.
THE COURT: Right. And part of the way I'm going to cure this is [the prosecutor] is going to stand up and admit he made a mistake in front of the jury.
[PROSECUTOR]: Understood, Your Honor.
THE COURT: And you're going to correct this.
[PROSECUTOR]: Yes, Your Honor.
THE COURT: And I'm going to tell the jury after you correct it that you're to move on and that they should disregard any implication from your comment about holding up the file.
[PROSECUTOR]: Understood, Your Honor. May I supplement the record?
I just want to make clear that the State's intent of the subsequent - that registered the subsequent objection is wholly unrelated to the first objection, Your Honor.
The State's intent was to make the point that the cell tower records emerged subsequent to this interview, and then his story changed which came through discovery.
THE COURT: I understand that. And I take you at your word, because you're an officer of the Court. And I don't believe that you ventured into this with, ill motive.
Having said that, we now need to fix it.
THE COURT: I think you need to say that you misspoke and by "discovery," to the extent you suggested that everything had been given to the defendant, that's inaccurate. And then I'm going to tell them to disregard the question and the answer.
[PROSECUTOR]: Understood, Your Honor.
THE COURT: And I'm also going to tell them to disregard the question about receiving police reports.
You need to focus this line of inquiry to the extent you want to venture into it into information he was actually privy to. And you need to make sure in questioning him on this that you don't in any way suggest he had some obligation to come forward when he heard that he was the suspect or that he was being arrested or thereafter.
[PROSECUTOR]: I'm going to move on, Your Honor, so it's not an issue.
(Jury entered at 12:07 p.m.)
THE COURT: Welcome back. [Prosecutor]?
[PROSECUTOR]: Yes, Your Honor. I apologize to the Court and Mr. Johnson, that holding up the file was inaccurately done along with the question that was asked previously.
THE COURT: Ladies and gentlemen, I am striking the question relating to the file and the follow-up question. And it was an inappropriate question.
You are to disregard the question and the answer. Do you understand?
THE JURY: Yes, Your Honor.
THE COURT: Does everyone feel capable of doing that?
THE COURT: All right. That question - those two questions asked by [the prosecutor] and any response by this witness should not be considered by you in any way, shape or form in your deliberations. Do you understand?
THE JURY: Yes, Your Honor.[103]
[DEFENSE COUNSEL]: I think the jury should have been informed that Demonte Johnson has never received any police reports in this case, and that wasn't said. Because at the point that the State -
THE COURT: I agree. I think the State ought to stipulate to that, I think the State should stipulate to a curative that he did not receive any police reports. ...

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