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State v. Brown

Superior Court of Delaware

February 28, 2019


          Submitted: January 28, 2019

         Upon Consideration of Defendant's Motion to Transfer Charges to Family Court, GRANTED.

          Allison Abessinio, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State.

          Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware. Attorney for the Defendant.


          MEDINILLA, J.


         Avorery Brown[1] ("Defendant") faces charges for alleged criminal conduct that occurred when he was sixteen years old[2] related to two separate robberies and his actions following the death of his twelve-year old brother. The charges include two counts of Robbery First Degree, two counts of Possession of a Firearm During the Commission of a Felony ("PFDCF"), two counts of Possession or Control of a Firearm by a Person Prohibited ("PFBPP"), two counts of Conspiracy Second Degree, and one count of Tampering with Physical Evidence.[3]

         Defendant filed this Motion to Transfer Charges to Family Court under 10 Del. C. § 1011 and the recently amended 11 Del. C. § 1447A. After consideration of the parties' submissions, oral arguments, and the record in this case, the Court finds that the State has not established proof positive or presumption great that Defendant used or displayed a firearm during the commission of the respective felonies to establish a fair likelihood of conviction for the firearm charges under 11 Del. C. § 1447A(f), and that both the preliminary considerations and enumerated factors under 10 Del. C. § 1011(b) weigh in favor of transfer. Therefore, Defendant's Motion to Transfer Charges to Family Court is GRANTED.


         Defendant's juvenile criminal history is only two years old, beginning when he was approximately fourteen years old. Unfortunately, all divisions of the Department of Services for Children, Youth and Their Families ("DSCYF") were involved in his life. Since age four, between 2006 and 2016, Defendant has been on the DFS radar and his family has been investigated on five separate occasions.[5] On May 11, 2016, a Hotline Abuse Report was filed which alleged that his mother was whipping her children.[6] DFS investigated the allegations of child abuse, and confirmed the abuse against all seven children in the home.[7] The DFS case was substantiated against his mother and she was also prosecuted by the State for her criminal conduct.[8] DFS reports confirm all seven children were subjected to physical discipline with a cord and belt. During their investigation, the children were separated from each other, removed from their mother's care, and Defendant was placed with his paternal grandmother and father.[9] During this time period, Defendant often ran to Riverside to see his mother. Less than three months after being removed from his mother's care, Defendant had his first encounter with the juvenile justice system.[10] He was detained and participated in various programs through the DSCYF, specifically through the Division of Youth Rehabilitative Services ("YRS") for two felony and three misdemeanor adjudications.

         On August 14, 2018, Defendant was arrested and charged in the Family Court for these robbery charges, and the companion firearm and person prohibited charges, as well as conspiracy.[11] The State decided instead to indict him in this Court on August 27, 2018.[12] On October 22, 2018, Defendant was re-indicted for Tampering with Physical Evidence related to an accidental shooting.[13] The shooting occurred on August 3, 2018 when Defendant's twelve-year-old brother died as a result of an accidental self-inflicted gunshot wound.[14] Through stipulation of the parties, the undisputed factual record reflects that at the time of the fatal shooting, Defendant was home during the incident, in a different room. Defendant told police he threw the gun out of a window and into a field.[15] Defendant denied that the gun was his.[16]A law enforcement officer observed Defendant running from and then returning to the home before police arrived to investigate Defendant's brother's death.[17] No firearm was ever recovered.

         Defendant was arrested eleven days after his brother's death and has since been detained at the New Castle County Detention Center ("NCCDC"). This charge is also brought against Defendant on the theory that his consciousness of guilt establishes that the weapon he removed from his home was the same one he possessed in the two robberies on July 25 and 31 for which he stands charged. It is these robberies that were the focus of the evidence presented at the reverse amenability hearing.

         The Court heard testimony from two State witnesses. The State called Wilmington Police Department officers, Master Corporal Jose Santana ("Santana") and Detective Steven Bender ("Bender") to testify about their respective robbery investigations of July 25 and July 31. Their responses on cross-examination prompted Defense counsel to seek a stay of the proceedings and a request was made for additional materials germane to the reverse amenability determination.[18] On January 17, this Court granted Defendant's request and, although challenged, the State eventually turned over the requested information.[19]

         On January 28, 2019, the Court heard oral arguments and Defendant submitted an additional exhibit for the Court's consideration to include transcripts of the interviews of the two victims and one witness, the 911 call transcript, and the transcript of the testimony of the two officers from the reverse amenability hearing.[20]Defendant also introduced a "Confidential Report of Psychological Evaluation" from licensed psychologist, Dr. Robin Belcher-Timme, Psy. D., and an "Amenability Report" prepared by Taunya Batista, M.A., a Sentencing Advocate/Mitigation Specialist.[21] Both opine a transfer to Family Court is warranted to further Defendant's rehabilitative efforts and ensure public safety.

         The State's evidence included a "Reverse Amenability Report" from Jennifer Skinner, a Family Service Specialist Supervisor for YRS.[22] She recommended that Defendant remain in this Court because this Court had exclusive jurisdiction of the firearm charges. As the law has changed, this is no longer the case. The matter is now ripe for review.


         The reverse amenability process is meant to identify those juveniles charged as adults who are amenable to the rehabilitative processes of the Family Court.[23] If the juvenile files a motion to transfer the adult charges, this Court must hold a reverse amenability hearing and weigh the four factors set forth in 10 Del. C. § 1011(b).[24]

         Under § 1011(b), the Court may consider evidence of: (1) "[t]he nature of the present offense and the extent and nature of the defendant's prior record, if any;" (2) "[t]he nature of past treatment and rehabilitative efforts and the nature of the defendant's response thereto, if any;" (3) "[w]hether the interests of society and the defendant would be best served by trial in the Family Court or in the Superior Court;" and any "other factors which, in the judgment of the Court are deemed relevant."[25]

         Before weighing the § 1011(b) factors, "the Court must preliminarily determine whether the State has made out a. prima facie case against the juvenile, meaning whether there is a fair likelihood that [the defendant] will be convicted of the crimes charged."[26] There is a fair likelihood that the defendant will be convicted if, after reviewing the totality of the evidence presented, it appears that, if the defense does not sufficiently rebut the State's evidence, "the likelihood of a conviction is real. . . ."[27] The Supreme Court has previously explained that the type of hearing required under § 1011(b) "requires the Superior Court to conduct an investigation akin to a proof positive hearing... [which has] a purpose analogous to the reverse amenability hearing."[28]

         Further, 11 Del. C. § 1447A(f) no longer mandates that PFDCF charges remain under the exclusive jurisdiction of the Superior Court for juvenile offenders.[29] As amended:

Every person charged under this section over the age of 16 years who, following an evidentiary hearing where the Superior Court finds proof positive or presumption great that the accused used, displayed, or discharged a firearm during the commission of a Title 11 or a Title 31 violent felony as set forth in § 4201 (c) of this title, shall be tried as an adult, notwithstanding any contrary provisions or statutes governing the Family Court or any other state law. The provisions of this section notwithstanding, the Attorney General may elect to proceed in Family Court.[30]

         The amendment entitles a juvenile defendant to an evidentiary hearing and allows the firearm charges to be transferred back to Family Court if the Court does not find proof positive or presumption great that the juvenile used, displayed, or discharged a firearm during the commission of a felony.[31] The proof positive or presumption great standard is commonly understood as whether "after [a] full hearing there is good ground to doubt the truth of the accusation."[32] If so, then "the Court in its discretion [may] conclude [] from the evidence that the State does not have a fair likelihood of convicting the accused of the.. .offense."[33]


         A. Proof Positive or Presumption Great - Fair Likelihood of Conviction

         1. Identification of Defendant

         Under 10 Del. C. § 1011(b), the State acknowledges that to make out its prima facie case for Robbery First Degree and the companion firearm charges, it relies heavily upon the victims' testimony and their accounts to identify Defendant as the perpetrator of each robbery. The State is required to "prove each element of the offense beyond a reasonable doubt, including that the defendant was the person who committed the offense."[34] The test for determining identity is "whether 'the [trier of fact] could rationally [find] sufficient evidence to conclude beyond a reasonable doubt' that the defendant committed the crime charged."[35] The totality of the evidence for each robbery is riddled with issues and demonstrates significant weaknesses in the State's prima facie case.

         Identification of July 25 Robbery

         Master Corporal Santana testified that on July 25, 2018, two juvenile males approached a victim ("Victim 1") in the area of 27th Street and Claymont Street. According to the victim, he was to provide his friend a ride to purchase drugs. Two young males approached his vehicle and brandished firearms. One juvenile demanded he turn over everything he had and forcibly removed the victim's necklace, cell phone, and wallet. The same juvenile told him he had "five seconds" to flee the area. Victim 1 immediately reported the incident. His wife used a phone finder and WPD located two suspects. Both suspects were detained by WPD but Victim 1 reported that they were not the juveniles that robbed him. The second juvenile was never apprehended. No other eyewitnesses were available. The victim described the gun as black in color but no firearm was recovered.

         Approximately three weeks later, on August 15, 2018, Santana interviewed Victim 1. He told the officer that he recognized the juveniles as two kids who lived in the neighborhood. He also told Santana that he spoke to other people in the neighborhood and conducted his own independent investigation to try to identify the suspects.[36] Santana then administered a photo line-up to Victim 1 and provided three or four photo arrays.

         Santana testified that he followed the policies employed by the WPD that permit the same person to both populate and administer the photo array to the victim. On cross-examination, he acknowledged this practice is apparently counter to the "joint model policies for custodial interrogations and eyewitness identifications"

promulgated by the Department of Justice ("DOJ") and the Delaware Police Chiefs Council.[37] Santana conceded that he was not familiar with the joint policies. He agreed that the WPD policy was at odds with what the joint policies consider "best practices," but stated his process is efficient and in accordance with the WPD policy. He did not have the policy available to offer additional comment.

         During the photo lineup with the Victim 1, Santana explained that the person the victim identified has "already been picked up for something."[38] Santana and the victim discussed others who were possibly robbed and Santana stated "And now he's got your case and, you know, obviously, we'd be - we'd be interested in putting more cases on him[, ]"[39] referencing the person the victim identified from the photo lineup. Santana explained that the victim may want to let these other people know that "something's already going and it could help" if they reached out to police.[40]

         Identification of July 31 Robbery

         Detective Bender testified that on July 31, 2018, a victim ("Victim 2") reported she was approached by two young black juveniles while responding to a food delivery call at 1200 East 22nd Street. One was wearing a ski mask. She alleged that the person without the ski mask ordered her "to give it up," with a countdown from "5 seconds" to flee.[41] She relinquished $56 and a can of soda. According to Bender, Victim 2 described this individual as a shorter black male with possibly a small afro with curly hair, and he was wearing all black clothing. Another eyewitness advised the investigating officers that two young black males were seen running down 22nd Street, where one dropped a sweatshirt, and one was overheard to say that they "got the money and the drugs."[42] Nothing related to drugs was mentioned by the victim.

         Victim 2 believed that the persons who robbed her frequented the area of 27thStreet and Claymont Street so WPD patrol officers immediately responded to the area and conducted a pedestrian stop of Defendant and another male individual. WPD officer ordered Defendant to be photographed in front of a police vehicle and sent the photo via text message to Sergeant Saunders who was conducting his investigation with Victim 2 at her place of employment. When shown the photo, she was unable to positively identify Defendant as the person who robbed her.[43] Surveillance videos from the surrounding areas proved unsuccessful in identifying the Defendant.

         Detective Bender also created and administered a photo array. Unaware of any particular WPD policy related to photo identification, he used an entirely different approach. Instead of using a standard "six-pack" array with a single sheet, he selected 20 photos of known juvenile suspects from an "Intelligence Bulletin" in the Riverside area, included Defendant, and presented Victim 2 with 20 single 8x10 black and white photographs. He conceded that no consideration was given to provide the victim with photos of individuals with similar traits.

         Victim 2 stated that the suspect without the mask displayed and used a gun and she was unsure if the juvenile with the ski mask possessed a gun.[44] When shown the photo line-up, Victim 2 identified Defendant as the one without the ski mask, who also had the gun.[45] But when asked if she had been shown his picture before- the aforementioned photo taken on the day of the robbery against the police vehicle-she stated "[a]nd I had said that that was.. .the one in the ski mask. But he. His face looked like he was the one that was right here."[46] When asked if Defendant was the one without the mask and with the gun, she stated "uh-huh."[47] Bender then states, "All right. Fair enough. I mean that -that works for me." To which she says "But I was so scared. I thought he had like longer hair."[48] Also, she indicated that a woman from the Riverside area may have been involved and that she has seen this woman talking to the boy she identified from the photos.[49] No woman or other juvenile was apprehended.

         Victim 2 provides different statements about whether Defendant was the one with or without the gun, and with or without the ski mask. It is unclear. So, too, when asked to describe the gun, she conceded she did not know guns. When interviewed, she described it as a silver or dirty silver color, [50] inconsistent with her description on the 911 call when she describes the gun as "blackish, like a dirty brownish."[51] Two houses from where the robbery occurred, patrol officers located a toy gun, and it was shown to her via a video chat application on the officers' phones. For unknown reasons, WPD discarded the toy gun after Victim 2 confirmed that the gun was too small to be the one used in the robbery. No firearm was recovered.

         It is not appropriate for this Court to determine issues of admissibility at this juncture, or whether the WPD employed appropriate protocol in its population or administration of the arrays used to identify Defendant. The Court does not have to decide whether the identification procedures were impermissibly suggestive.[52] However, even if admissible, the Court may weigh the totality of the evidence.

         Master Corporal Santana's statements to the victim that Defendant had "already been picked up" for other crimes, and asking for assistance to charge him for more may face challenges. Whether or not impermissibly suggestive, the process and his statements may undermine the admissibility of an in-court identification. Detective Bender's use of a wholly different approach to select only the juveniles from the Riverside area ...

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