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State v. Felix Hutchinson

Court of Common Pleas of Delaware, New Castle

January 30, 2019

STATE OF DELAWARE
v.
FELIX HUTCHINSON Defendant.

          Submitted: January 25, 2019 [1]

          Anthony J. Hill, Esquire Deputy Attorney General Attorney for the State of Delaware

          Raj Srivatsan, Esquire Assistant Public Defender Attorney for Defendant

          MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO DISMISS

          Hon. Carl C. Danberg, Judge

         The defendant, Felix Hutchinson (hereinafter the "Defendant"), brings this Motion to Dismiss. Defendant stood trial on August 6, 2018, for offensive touching, allegedly committed against Patrick Harsha (hereinafter "Mr. Harsha"), a Wilmington Housing Authority security guard. Mid-trial, Defendant moved for dismissal based on the State's failure to obtain and provide to Defendant 911 recordings pertaining to this matter in violation of Brady v. Maryland[2] The State opposes Defendant's Motion, alleging that the failure to turn over the 911 recordings does not amount to an unfair trial nor would it compromise the confidence in a guilty verdict should the Court so rule.

         During trial, Defendant also moved for a judgement of acquittal, which was denied by the Court. Defendant's Answer Brief pertaining to the instant Motion to Dismiss asserts renewal of Defendant's Motion of Acquittal, which the Court also denies.

         On August 6, 2018, following the Motion to Dismiss, the Court ordered supplemental briefing on whether the 911 calls still existed, and, if so, whether the State's failure to provide Defendant with the recordings constituted a Brady violation. This is the Final Decision and Order of the Court on Defendant's Motion to Dismiss.

         FACTS AND PROCEDURAL HISTORY

         On September 3, 2017, Defendant was charged with Offensive Touching, in violation of 11 Del. C. § 601(a)(1). The alleged offense took place June 30, 2016. On December 14, 2017, Defendant sent the State a discovery request, asking for "[c]opies of all audio or videotapes"[3] and "[a]ll information and materials in the possession of the State which fall within the ambit of Brady."[4] At trial on August 6, 2018, Defendant moved for dismissal of the case and judgment of acquittal during trial for the State's alleged failure to provide Defendant with 911 recordings pertaining to the case. Prior to Defendant's Motions, the State presented its case which consisted of testimony from Mr. Harsha and Senior Corporal Matthew Cavanaugh[5] (hereinafter "Cpl. Cavanaugh") of the Wilmington Police Department. Following Defendant's Motion, the defense presented the testimony of Defendant. Subsequent to trial, the State was able to obtain copies of the 911 recordings and supplied them to defense counsel. Upon review of the supplemental briefs received by the parties, the Court issued an order compelling in camera review of the 911 recordings in question.

         The 911 recordings consist of eight calls. The first call, from an unidentified female, reporting a black man yelling, cursing, and "screaming about Africa" in Madison Gardens Court Yard, was not referenced during trial. The second call, from Wilmington Housing Authority Security Officer, Patrick Harsha, reporting a drunk Jamaican man yelling and screaming in a parking lot and making threats towards the caller, was referenced by complainant, Patrick Harsha, at trial. Upon review of the second call, the subject can be heard yelling "black power" in the background seemingly getting closer to the caller as the call continues. The third call, again from Wilmington Housing Authority Security Officer, Patrick Harsha, reporting that the man was trying to storm the caller's vehicle, was referenced by complainant, Patrick Harsha, at trial. The fourth call, from an unidentified female, reporting a fight in front of her house located on Garden Court, was not referenced at trial. The caller reported the fight was between a Wilmington Housing Authority Security Officer and another man unknown to the caller. The caller further stated: 1) "I thought security would have been called, but I guess not;" 2) "He was trying to leave peacefully .. . I do not know why the man kept badgering him;" 3) "I do not know why the security guard did not call 911 ... I am not sure if he did or didn't... the cops are just not here;" 4) in response to a question by the dispatcher, the caller states, "I guess he is security... I have never seen him before ... but his car says WHA ... looks like he has on a badge and a white shirt... I think it is a white guy . . . and the other guy ... a black guy ... he looks drunk ... I do not even know if he lives here." The fifth caller, from a guard at the Kennedy building, reporting that his rover was on Madison Street behind the McDonald's and needed help because he had been assaulted, was not referenced during trial. The dispatcher tells this caller that the security officer did not say he had been assaulted when he called. The caller explained that the security officer had just called and stated he was assaulted. The sixth caller, again from the guard at the Kennedy building, reporting that the security guard was pinned down and the cops had not yet arrived, was not referenced during trial. The seventh call, from an unidentified female, reporting someone screaming or fighting outside, was not referenced at trial. The eighth call, again from the guard at the Kennedy building, reporting that he keeps trying to talk to his rover but he sounds out of breath, was not referenced at trial. The dispatcher advised the caller that police were on the scene.

         PARTIES' CONTENTIONS

         Defendant argues that the State violated its "duty to disclose evidence that is favorable to ... Defendant."[6] Defendant contends that under the materiality standard found in United States v. Bagley, [7] the State's suppression of the 911 recordings "undermines confidence in the outcome at trial."[8] Defendant asserts that the defense requested "all audio or videotapes"[9] and all materials falling "within the ambit of Brady"[10] which covered the 911 recordings in question. Defendant also highlights various newfound impeachment opportunities presented by the existence of the 911 recordings.

         The State admits its failure to discover and provide the 911 recordings to Defendant, but argues that such failure does "not undermine the confidence in the outcome of Defendant's trial, nor would it implicate the fairness of the proceeding."[11] The State contends that the victim's testimony made no mention of a 911 call pertaining to the charge of offensive touching. Further, the State argues that the victim testified to only two 911 calls wherein the victim complains of a drunk and disorderly person and subsequently when Defendant allegedly began striking the victim's vehicle.

         DISCUSSION

         It has been long established that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."[12] As to materiality of the evidence,

the defendant needs not show that the disclosure of the suppressed evidence would have resulted in an acquittal.[13] The defendant must show, however, that the suppressed evidence creates a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.[14] In other words, the suppression of evidence must undermine[] confidence in the outcome of the trial.[15]

         Reasonable probability does not require the defendant to show by a preponderance that had the evidence been obtained, the defendant would have been acquitted. Additionally, materiality turns on the cumulative effect of all evidence withheld.[16] The Delaware Supreme Court in Michael v. State noted, "evidence which the defense can use to impeach a prosecution witness by showing bias or interest, as well as exculpatory evidence, falls within the Brady rule."[17] "The reviewing court may also consider any adverse effect from nondisclosure on the preparation or presentation of the defendant's case."[18] Ultimately, Defendant must show that "favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."[19] ...


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