Submitted: January 16, 2019
Below: Superior Court of the State of Delaware Cr. I.D. No.
VALIHURA, VAUGHN, and SEITZ, Justices.
L. VALIHURA JUSTICE
8th day of February 2019, upon consideration of
the briefs of the parties and the record below, it appears to
the Court that:
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.
appeal, Pumphrey challenges his convictions on the basis of
Due Process and Brady v. Maryland
violations. 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.
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
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.
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.
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.
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."
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
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.Further, the trial court
found that there was no evidence that Boyer was in the area
at the time of the offense.
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." 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.
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.
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.
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.
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.
review Pumphrey's claims of Due Process and
Brady violations de novo. 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." But "[a]bsent an objection at trial,
this Court reviews an evidentiary issue only if the ruling
constitutes plain error affecting substantial
rights." Affirmatively waived evidentiary issues
"are not reviewable on appeal."
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 . .
. ." 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."
identification procedure "will not pass constitutional
muster where it is 'so impermissibly suggestive as to
give rise to a very substantial likelihood of ...