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Downs v. State

Supreme Court of Delaware

March 4, 2019

PIERRE DOWNS, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: January 9, 2018

          Court Below-Superior Court of the State of Delaware Cr. ID. K1610003784A&B

          Before VALIHURA, SEITZ, and TRAYNOR, Justices.

          ORDER

          Gary F. Traynor, Justice

         This 4th day of March 2019, after careful consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         (1) Pierre Downs appeals his convictions of first-degree robbery, third-degree assault, theft of a firearm, second-degree conspiracy, and possession of a firearm by a person prohibited. The charges stemmed from an assault and robbery of Jose Acobe outside the Golden Fleece Tavern on Loockerman Street in Dover.

         (2) Downs raises two issues on appeal. First, he argues that the Superior Court erred by admitting a hearsay statement relating to whether the SUV that Downs raided after the assault of Acobe contained a gun-the alleged theft of which formed the basis of the firearm-theft and person-prohibited charges-and that such error was not harmless. Second, Downs argues that there was insufficient evidence to support four of his convictions.

         (3) We reject Downs' insufficient evidence claims, but we agree that the Superior Court erred by admitting the hearsay statement, and we conclude that the error was not harmless. Accordingly, we affirm Downs' convictions of first-degree robbery, third-degree assault, and second-degree conspiracy and vacate in part Downs' convictions of theft of a firearm and possession of a firearm by a person prohibited.

         * * *

         (4) On the evening of September 23, 2016, Acobe went to the Golden Fleece Tavern. Acobe drove a white Chevrolet Blazer ("SUV") that he had borrowed from his aunt and parked it across the street from the bar. After ordering a beer, Acobe left the bar and returned to the SUV to apply cologne. While outside, Acobe noticed a group of men looking at him strangely. After this encounter, Acobe returned to the bar to pay for his beer. Several of the men from outside then entered the Golden Fleece and stared at Acobe. The men from outside then left the Golden Fleece.

         (5) Feeling uncomfortable and scared, Acobe also decided to leave the Golden Fleece. But as soon as Acobe walked into the street, a man punched him in the head, knocking him unconscious. When Acobe regained consciousness, he saw a crowd of people standing around him and discovered that his cell phone and wallet were missing.

         (6) Emergency medical technicians and Corporal Brian Wood of the Dover Police Department responded to the scene. While emergency medical personnel attended Acobe, a Golden Fleece employee told Corporal Wood that something had been taken from the SUV. Upon approaching the SUV, Corporal Wood noticed that the driver's side rear door was open a couple of inches. Corporal Wood inspected the SUV and found a box of shotgun shells on the driver's seat.

         (7) Meanwhile, Acobe was taken to Kent General Hospital. After inspecting the SUV, Corporal Wood went to the hospital to interview Acobe. Acobe told Corporal Wood that "unknown black males had struck him and taken his phone."[1]

         (8) Upon his return to police headquarters, Wood reviewed footage from surveillance cameras near the Golden Fleece. The footage showed men walking from the front of the tavern to Acobe's SUV, entering Acobe's SUV, removing an object, and leaving. The footage then showed the men split up and enter two vehicles: a silver Mercedes-Benz and an orange Dodge Charger. After reviewing the footage, Corporal Wood turned the investigation over to Detective Christopher Bumgarner.

         (9) Detective Bumgarner examined more surveillance footage that had been captured earlier that night. In the footage, he saw a group of people, one of whom he identified to be Downs, walk to Irish Mike's, another bar. When the group left Irish Mike's, they headed toward the tavern. As they were walking, one of the members of the group peered inside Acobe's SUV.

         (10) In the footage, Detective Bumgarner saw a few members of the group entered the Golden Fleece while Downs and other members of the group waited outside. As mentioned, Acobe then walked out of the Golden Fleece only to be punched in the head by an assailant. Detective Bumgarner identified that assailant as Downs. After Acobe fell, Detective Bumgarner could not see whether Downs and the group were kicking Acobe or taking his belongings due to a light pole obscuring the camera's view.

         (11) Following the assault, Downs and two others from the group approached Acobe's SUV. Based on his training and experience, Detective Bumgarner thought that the two others were acting as lookouts for Downs. One of these lookouts opened the front door of the SUV while Downs opened the back door and removed "a large, long object."[2] Detective Bumgarner believed the object was either a rifle or a shotgun based on the butt, barrel protrusion, and shape of the object, but also acknowledged that it could have been a BB gun or other air rifle. Downs then walked away from the SUV at a brisk pace, directly passing under a camera at Bradford and Loockerman Streets which allowed Detective Bumgarner to identify him.

         (12) Other cameras showed the orange Charger and the silver Mercedes-Benz drive away. The Mercedes-Benz followed the Charger until the Mercedes-Benz stopped at a townhouse on Reed Street. There, a person got out of the Mercedes-Benz, took out a long object, [3] walked to the townhouse, and left the townhouse without the object. The Charger stopped at Downs' home.

         (13) After reviewing the surveillance footage, Detective Bumgarner interviewed Acobe at his home and photographed his injuries. Acobe told Detective Bumgarner that after his assault, he "discovered that his cousin, Fruto Cantres, that his [Cantres'] shotgun had been removed from the vehicle."[4] Additionally, Acobe told Detective Bumgarner that Cantres "had left [a shotgun] in the vehicle and described it as a 12-gauge shotgun."[5]

         (14) While at Acobe's home, Detective Bumgarner collected approximately fifteen 12-gauge shotgun shells and a shotgun magazine. After further investigation, Detective Bumgarner discovered that Cantres had purchased a Marlin Model 55, 12-gauge shotgun in Newark, Delaware, about two years before Acobe's assault.

         (15) A week after the robbery, Corporal Wood found the orange Charger parked outside of Downs' home and the ...


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