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Fowler v. State

Supreme Court of Delaware

August 27, 2018

ALAN FOWLER, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: August 15, 2018

          Court Below: Superior Court of the State of Delaware Cr. ID Nos. 1108000561A; 1108000561B

         Upon appeal from the Superior Court. REVERSED and REMANDED.

          Herbert W. Mondros, Esquire, MARGOLIS EDELSTEIN, Wilmington, Delaware; Karl Schwartz, Esquire, THE LAW OFFICE OF KARL SCHWARTZ, Philadelphia, Pennsylvania, for Appellant, Alan Fowler.

          Maria T. Knoll, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, for Appellee, State of Delaware.

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


         In this case, defendant Alan Fowler was admittedly present at two melees during which shots were fired, and in one of those incidents, a mother of two was twice struck by bullets while shielding her sleeping children from the gunfire. Fowler was convicted of serious crimes, several of which were premised on him not just being present and part of a group of folks bent on vengeance for various social grievances against people they knew, but on his being the shooter.[1] After Fowler's trial and direct appeal were over, it emerged during post-conviction proceedings that the State had failed to provide Jencks statements to the defense of not one, but four, of its key witnesses.[2] In ruling on his post-conviction petition, the Superior Court held that the State had proved the error was harmless, largely based on the testimony of the State's ballistics expert, Carl Rone, who said that the same gun was used in both incidents.[3]

         Then, when this case was on appeal and after the Superior Court had already ruled on the Rule 61 petition, evidence emerged that the expert, who was not even properly certified in the relevant area of firearms identification as of trial, [4] was being charged by the State with Theft by False Pretense over $1, 500 and Falsifying Business Records to Make or Cause False Entry for "providing false [Delaware State Police] activity sheets and receiving compensation from [Delaware State Police] for work that was not performed."[5]

         Faced with this new and disturbing development, the State pivoted. Having argued below that its four Jencks violations were harmless in substantial part because of the ballistics evidence it presented, on appeal it did a 180. Now, it tells us that we need not worry that its ballistics expert has serious credibility issues because he claimed pay for work he did not do. Why? Because its witness testimony, including that of the four witnesses for whom it failed to provide Jencks statements, was so strong.[6] In other words, it asked the Superior Court to excuse the Jencks violations as harmless because of the strength of its ballistic expert's testimony. And it now asks us to excuse the serious issues with that expert's credibility because of the compelling nature of testimony by witnesses, several of whose Jencks statements were not timely disclosed.

         When the reliability of both strains of the key evidence the State used to prove Fowler was the shooter has been called into question, Rule 61 requires setting aside the conviction. In this context, it is the State's burden to convince us that the record demonstrates that their multiple violations of Jencks were harmless beyond a reasonable doubt. Given the importance to the case of whether Fowler was the shooter, the utility of the Jencks statements to the defense as to that key issue, and the inability of the State to any longer look to the ballistics testimony to support an argument for harmless error, the State has not met its burden. As important, the confidence-undermining development regarding the ballistics expert's credibility cannot be ignored on the now implausible basis that the eyewitness testimony-i.e., the testimony affected by the Jencks violations-is incontrovertibly dispositive. Rather than impose upon the Superior Court the burdensome step of conducting an evidentiary hearing under Rule 61 in these unusual circumstances, we vacate Fowler's conviction and remand for a new trial.


         Defendant Alan Fowler was convicted of serious crimes for incidents on July 2, 2011 and July 31, 2011 during which the State alleged that Fowler fired an identical .32 caliber firearm.[7] These two incidents might be seen to have some comic elements, if they had not resulted, in the first incident, in two men expecting to engage in a fistfight being instead ambushed by gunfire, and in the second, in a mother of two being shot twice and injured while shielding her sleeping children from gunfire. During the incidents, defendant Alan Fowler was admittedly present and part of a group of people involved in each instance.

         In the first, Fowler and three friends, Brett Chatman, Tammi Boyd, and Danielle Maslin, were hanging out at Fowler's house in the Brookside neighborhood of Newark, Delaware.[8] Maslin was arguing with her ex-boyfriend, Michael Welcher, over the phone.[9] Fowler overheard the argument and began arguing with Welcher on Maslin's phone, and the two agreed to meet and fight.[10] Fowler, Chatman, Boyd, and Maslin drove to the house where Welcher's and others were on the front porch.[11] Shots were fired at the porch from Fowler's car.[12]

         In the second melee, about a month later, Chatman and his friend, Jonathon Duarte, were at the Deer Park Tavern in Newark, Delaware, at the same time as Fowler's brother, Ken Fowler.[13] Another bar patron, Kyle Fletcher, and Ken Fowler got into a parking lot altercation. Fletcher allegedly stabbed Ken Fowler.[14] Chatman alerted Fowler, who was at the beach, of his brother Ken's injury.[15] Fowler and another man, unidentified by either the State or any trial witness, drove to Newark, picked up Chatman and Duarte, and drove around Newark searching for Fletcher.[16]

         They drove to the house where they thought Fletcher lived, parked a few houses away, and all four men got out of the car and walked to the house.[17]According to the State's theory of the case, Chatman and Duarte stood some distance away from the house, Fowler allegedly kicked the front door of house, shot at the front door of the house, and shot through a window on the side of the house.[18] The other unidentified man also shot at the side of the house.[19]

         But Fletcher no longer lived at the house. As it turned out, at the time of the shooting, it was occupied by Linda Lerdo, who was shot twice and injured while shielding her two young children from the gunfire.[20]

         Hours after this second shooting, Fowler and Chatman drove to Chatman's aunt's house in West Palm Beach, Florida, where they were later joined by Duarte; Fowler's on-again, off-again girlfriend, Emily Godek; and Emily's friend, Valentina Vitale.[21]

         The police originally suspected Chatman was the shooter. While in Florida, Chatman learned from his mother that the police had executed a search warrant on his house and car, and he spoke with the Chief Investigating Officer, Detective Eckerd of the New Castle County Police Department, who urged him to return to Delaware for questioning.[22] Chatman was then arrested by local police officers in Florida.[23] Upon Chatman's arrest, Fowler, Duarte, Godek, and Vitale returned to Delaware in Godek's car, [24] because Fowler had abandoned his car in Daytona, Florida. Fowler was arrested in Pennsylvania on August 17, 2011.[25]


         A grand jury indicted Fowler on three counts of Attempted Murder First Degree, two counts of Reckless Endangering First Degree, five counts of Possession of a Firearm During the Commission of a Felony, two counts of Possession of a Firearm by a Person Prohibited and one count of Criminal Mischief.[26]

         At Fowler's trial, in which the charges for both incidents were jointly tried, a great deal of the State's evidence was dedicated to proving that Fowler was the shooter in both incidents and that he used the same gun in each incident. Not coincidentally, defense counsel's strategy at trial was to create reasonable doubt by attacking the credibility of the ballistics evidence and suggesting that Chatman-the only eyewitness to both shootings-either was the shooter or was not credible because he implicated Fowler for the shooting to avoid prosecution for being the shooter.

         To undermine the credibility of the ballistics expert, Carl Rone, defense counsel pointed out that Rone's certification had lapsed at trial and that Rone had failed to have another examiner review and corroborate the results of his analysis.[27]Defense counsel also suggested that Chatman may have been the shooter. The police had caused Chatman to be arrested in Florida before they arrested Fowler, suggesting that Chatman was originally suspected of committing the shootings.[28] The defense tried to build on this by highlighting eyewitness testimony suggesting the shooter at each incident had attributes more like Chatman than Fowler. For example, eyewitnesses to the first shooting identified the shooter as having a full sleeve of tattoos, consistent with a description of Chatman, not Fowler.[29] And as to the second shooting, one eyewitness identified Chatman, not Fowler, as the shooter when shown video of the two.[30] All told, defense counsel suggested that Chatman could have been the shooter because Fowler and Chatman share similar characteristics:

• Both were present at both shootings;
• Both are white;
• Both have tattoos; and
• Both wore striped polo shirts at the second shooting

         To further undermine Chatman's credibility, defense counsel also suggested that Chatman told the police he was scared of Fowler to save himself from prosecution.[31]

         Nonetheless, Fowler was found guilty. The Superior Court granted Fowler's motion for a judgment of acquittal as to the count of Attempted Murder First Degree concerning the First Shooting in which Welcher was shot at, and its related count of Possession of a Firearm During the Commission of a Felony, [32] and the Superior Court sentenced Fowler to 88 years of incarceration, suspended after 50 years, followed by decreasing levels of supervision.[33] Fowler's conviction was then affirmed on direct appeal.[34]

         Then two important developments occurred during the period after Fowler challenged his conviction under Rule 61. Both developments are important and unusual and form the basis for Fowler's request for a new trial. The first involved the State's failure, which it contends was inadvertent, to provide the prior record statements of not one, but four, of its key witnesses, [35] as required by the rule articulated in Jencks v. United States, [36] adopted by this Court in Hooks v. State, [37]and codified in Superior Court Criminal Rule 26.2.[38] The Jencks statements that the State failed to timely produce were those of Brett Chatman, Fowler's friend who was present at both incidents and accompanied Fowler to Florida; Jonathon Duarte, who was present at the second incident and later joined Fowler in Florida; Lance Walstrom, a neighbor who witnessed the second incident; and Emily Godek, Fowler's girlfriend who joined Fowler in Florida after the second incident.

         These statements contain information that contradicts, to various degrees, the trial testimony of these witnesses, and also bears on the motives certain witnesses had to claim that Fowler, rather than others who were present at the incidents, was the shooter. Indeed, these Jencks violations call into question one of the State's two key pieces of evidence: Chatman's eyewitness testimony that Fowler was the shooter at both shootings.

         Recognizing that the State had committed a Jencks violation, the Superior Court properly inquired into whether the State had proved that its multiple violations were harmless beyond a reasonable doubt by using the applicable test, which required weighing "1) the closeness of the case; 2) the centrality of the error to the case; and 3) steps taken to mitigate the effects of the violation."[39]

         In finding against Fowler, the Superior Court acknowledged that "[i]n a case turning in large measure on the credibility of the witnesses . . . it is at an obvious disadvantage, because a different judge presided at the trial," but nevertheless found that the case was not close and that none of the arguable inconsistencies in the statements were, taken together, sufficient to render their non-production non-harmless.[40] In so holding, the Superior Court judge found that Fowler knew about some of the inconsistencies because they involved admissions by the witness of conduct involving the witness and Fowler.[41] The Superior Court judge, however, did not acknowledge that it is much more useful for cross examination to have an admission by a witness to the impeaching fact than simply a question of counsel casting doubt on the witnesses' assertion of fact.[42] Even more importantly, the Superior Court's harmless error analysis heavily relied on "the fact that ballistic evidence linked the same weapon to both incidents [that] makes the evidence of Fowler's guilt in each separate incident mutually reinforcing."[43]

         After this ruling, and when this case was on appeal, the second and even more unusual development occurred. The State arrested Carl Rone, the ballistics expert who testified at Fowler's trial that the same .32 caliber firearm was used in each incident, for Theft by False Pretense and Falsifying Business Records to Make or Cause False Entry.[44] Rone's testimony was vital to both the State's trial case and the Superior Court's opinion because if one accepted the expert's testimony, that the same weapon was present at each incident, it gave the jury and the Superior Court a basis other than eyewitness testimony to conclude that Fowler was the shooter. This new development casts doubt on Rone's credibility. This doubt came on top of the realities that (i) as of the trial, Rone had already let his certification lapse, [45] and (ii) the methodology Rone used, one that has been the subject of increasing scrutiny, is dependent in large measure on the reliability of observations by the expert himself.[46] Because of these new developments, Fowler sought leave to argue that he should receive a new trial during which Rone's credibility and reliability could be tested in light of this new information. That leave was ...

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