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Pumphrey v. State

Supreme Court of Delaware

February 8, 2019

ELTON PUMPHREY, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee.

          Submitted: January 16, 2019

          Court Below: Superior Court of the State of Delaware Cr. I.D. No. 1611016239S

          Before VALIHURA, VAUGHN, and SEITZ, Justices.



         This 8th day of February 2019, upon consideration of the briefs of the parties and the record below, it appears to the Court that:

         (1) Defendant Elton Pumphrey appeals his conviction of Carjacking in the First Degree, Robbery in the First Degree, and Offensive Touching. Those convictions result from an incident on November 21, 2016, when a sixty-four-year-old Jeffrey Lessig, Sr. agreed to give Pumphrey a ride home. As Lessig drove Pumphrey home, he slowly pulled into a cul-de-sac to ask Pumphrey for further directions. Pumphrey then pulled the keys out of the ignition, grabbed Lessig's face and threatened to rob him, and, when Lessig stated that he had no money, he took Lessig's car keys and cell phone and exited the vehicle. Lessig also left his vehicle and approached a bystander to ask for help. As Lessig sought help, Pumphrey re-entered the vehicle and drove away.

         (2) On appeal, Pumphrey challenges his convictions on the basis of Due Process and Brady v. Maryland violations.[1] Additionally, he argues that no rational trier of fact could convict him of Offensive Touching. The State denies Pumphrey's Due Process and Brady violation arguments, but it has admitted that the conviction of Offensive Touching was erroneous because it is a lesser-included offense of Robbery in the First Degree.

         (3) We conclude that the Superior Court did not err as to the robbery and carjacking convictions. Because the State has admitted error concerning the Offensive Touching conviction, we need not reach the merits of Pumphrey's argument on that issue.

         (4) Therefore, we AFFIRM Pumphrey's convictions of Carjacking in the First Degree and Robbery in the First Degree, and VACATE Pumphrey's conviction of Offensive Touching.

         (5) On November 21, 2016, Lessig received a call from his granddaughter notifying him that the water heater in her manufactured trailer home, which she rented from Lessig, had malfunctioned. She also stated that there was a man looking at the water heater who wanted to speak with Lessig. When Lessig arrived at the home in the Cool Springs Farms development, he saw his grandson standing outside the home along with three other men. Inside the home, one of the men-later identified as Pumphrey-offered to repair the water heater for $40. Lessig declined the offer and walked outside toward his two-seat Mazda Miata. At this point, the parties' stories diverge.

         (6) The State alleges that Pumphrey asked Lessig for a ride, and, with Lessig's permission, he entered the car and gave directions as Lessig drove. After Lessig turned onto a cul-de-sac and asked Pumphrey where he lived, Pumphrey pulled the keys out of the ignition and twice threatened to rob Lessig-once grabbing him by the face. Lessig gave Pumphrey his empty wallet and told him that he had no money. Pumphrey then took Lessig's keys and mobile phone as he exited the car. Lessig also left the car and approached a man nearby who let him use his cell phone to call the police. During that time, Pumphrey got back into Lessig's car and drove away. The bystander stayed with Lessig until Trooper Murray, the responding police officer, arrived.

         (7) Murray canvassed the neighborhood and asked a local resident if he had heard who committed the crime. The resident began pronouncing a word starting with "B," but was unable to think of the full name. Murray then suggested that it might be "Boyer," a name affiliated with crime in the Cool Springs Farms area, which the resident confirmed. Murray included the possible "Boyer" suspect in his contemporaneous notes. The next day, Detective Doughty took over the investigation and reviewed Murray's police report. Doughty thought that the section of the report concerning Boyer was vague, so he emailed Murray instructing him to "clean it up."[2]

         (8) Police also interviewed Lessig's grandson, who said that "Bowl" was the man inside the trailer home looking at the hot water heater. Another individual in the Cool Springs Farms development told Doughty that "Bowl" was Pumphrey's nickname. Lessig described the perpetrator as a black male between 6'2" to 6'4" and 200 to 210 pounds. Lessig's grandson provided a similar description of the man looking at the water heater, describing him as a black male who was 6'4" to 6'5", 220 to 230 pounds, and appeared to be in his forties.

         (9) After obtaining Pumphrey's name, Doughty created a six-photo lineup using Pumphrey's mugshot and pictures of men of similar appearance. Doughty did not pursue an investigation of "Boyer" because he did not fit the general description of the suspect.[3]Further, the trial court found that there was no evidence that Boyer was in the area at the time of the offense.[4]

         (10) Doughty conducted the photo identification at Lessig's trailer home two days after the incident occurred, which he audiotaped in its entirety. First, Doughty presented the photo lineup to Lessig's grandson, who identified Pumphrey "with not a doubt in [his] mind," "110%" as "the person who jacked my pop."[5] Doughty then presented the photo lineup to Lessig in the kitchen, while his grandson remained in the living room. Lessig told Doughty that he was not certain he could identify the perpetrator. Lessig's grandson can be heard on the audiotape encouraging him to look at the photo lineup. Doughty explained that the perpetrator was not necessarily in the lineup and that, if Lessig did not see him, he should not feel compelled to make an identification. Doughty then showed Lessig the photo lineup and Lessig identified Pumphrey as the perpetrator, although he told Doughty that he did not think Pumphrey wore glasses during the incident, as Pumphrey did in his mugshot.

         (11) Doughty obtained an arrest warrant for Pumphrey, who turned himself in the same day. In his interview with Doughty, Pumphrey offered a different account of the events. He admitted that he was in the trailer home with Lessig and Lessig's grandson to examine the water heater, that he drove the car after borrowing it from Lessig, purchased liquor while driving the car, and later abandoned the car on the side of the road after it broke down without notifying Lessig. He further asserted that those events took place the day after Lessig was carjacked by a different person.

         (12) Leading up to trial in May 2017, Pumphrey filed a Motion to Exclude Identification Evidence, which the trial court denied in June 2017. After trial, the jury found Pumphrey guilty on all counts. Pumphrey then filed a motion for judgment of acquittal based on alleged improper identification, and a motion for a new trial based on the alleged Brady violation. The Superior Court denied both motions.

         (13) On February 13, 2018, Pumphrey filed a Notice of Appeal with this Court. The State filed a Notice of Cross-Appeal on March 9, 2018, but ultimately stipulated to dismissal of its cross-appeal on October 3, 2018.

         (14) Pumphrey challenges his robbery and carjacking convictions on three grounds. He claims that: (1) the denial of his motion to exclude a pre-trial identification constituted a violation of his Due Process Rights; (2) the State committed a Brady violation concerning evidence of a second suspect; and (3) introduction of Detective Doughty's comments during Pumphrey's police interrogation constituted improper vouching of the State's position.

         (15) We review Pumphrey's claims of Due Process and Brady violations de novo.[6] As to Pumphrey's vouching claim, where an objection is raised at trial, this Court applies an abuse of discretion standard to "a trial court's ruling admitting or excluding evidence."[7] But "[a]bsent an objection at trial, this Court reviews an evidentiary issue only if the ruling constitutes plain error affecting substantial rights."[8] Affirmatively waived evidentiary issues "are not reviewable on appeal."[9]

         (16) First, Pumphrey argues on appeal that the Superior Court violated his due process rights when it admitted the pre-trial identification. Specifically, he argues that Lessig's pre-trial identification was impermissibly suggestive and created a substantial likelihood of irreparable misidentification. As a result of the improper pre-trial identification, he also argues that Lessig's in-court identification was tainted. The Superior Court found that "[b]ased on all of the circumstances and considering the facts, as presented; listening to the audiotape, I'm satisfied that there is no unnecessarily suggestive conduct on the part of the police or any circumstances that would create a question of reliability . . . ."[10] Further, the court found that there was "nothing in the manner in which the grandfather exercised his determination of whether the perpetrator was in that lineup that was unnecessarily suggestive or created a risk of misidentification."[11]

         (17) An identification procedure "will not pass constitutional muster where it is 'so impermissibly suggestive as to give rise to a very substantial likelihood of ...

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