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Thomas v. State

Supreme Court of Delaware

March 26, 2019

DAMIAN THOMAS, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: January 9, 2019

          Court Below-Superior Court of the State of Delaware Cr. ID No. N1505012411

          Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.



         This 26th day of March, 2019, after careful consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         (1) Following a Superior Court jury trial, Damian Thomas was convicted of first-degree murder, possession of a firearm during the commission of a felony, and carrying a concealed deadly weapon. At a later bench trial, [1] Thomas was also found guilty of possession of a firearm by a person prohibited. The Superior Court sentenced him to life in prison for the first-degree murder charge plus twenty years' incarceration for the remaining offenses.

         (2) The charges and convictions arose out of the following events. On a mid-April evening in 2015, Etta Reid and her son, Deshannon Reid, were sitting on the front porch of their home on West 27th Street in Wilmington. Shortly thereafter, Damian Thomas joined the Reids, sitting in a porch chair beside Deshannon. After a brief conversation, Thomas left and walked toward Market Street.

         (3) About five minutes later, Thomas returned to the porch, sat in the same chair next to Deshannon, and whispered in Deshannon's ear. Deshannon stood up and said, "Man, I told you I don't have anything for you."[2] Arguing, the two men left the porch and walked two houses down towards Moore Street. It appeared to Etta that the two men were arguing about drugs or money.

         (4) Etta observed the two men walk towards the corner across Moore Street. Because there was a large group of people talking on the corner, Etta could not hear everything that was said. As Deshannon turned to cross the street opposite Thomas, Etta overheard people exclaiming, "No, [m]an, no."[3] Thomas pulled out a gun and shot Deshannon. After Deshannon fell, Thomas stood over him and shot him twice more before he fled through the parking lot of Pete's Pizzeria, located on the corner of 27th and Market Streets. According to the chief investigating officer, Detective Thomas Curley of the Wilmington Police Department, the shooting occurred at 9:44 p.m.

         (5) Deshannon died three days later as a result of the gunshot wounds he sustained that evening.

         (6) Police recovered several surveillance videos recorded near the scene, four of which are of particular relevance to Thomas's appeal. Three of the videos from Pete's Pizzeria depict arguably relevant events: (i) an individual in dark clothing walking along the north side sidewalk on 27th Street at 9:33 p.m., heading westbound from Market Street toward the scene of the shooting; (ii) an individual- also in dark clothing-walking on the north side sidewalk with two other individuals coming through the parking lot at 9:44 p.m., also heading in the direction of the crime scene; and (iii) an individual who was in front of the pizzeria at 9:44 p.m. and "react[ed]" as if he was "startled" as the incident occurred.[4]

         (7) The fourth video from Crestview Apartments-where Thomas's girlfriend lived-shows Thomas entering the apartment building at 9:36 p.m. and signing in with the security guard. He then walked past the elevator doors and entered his girlfriend's apartment. He left her room after about thirty seconds, walked past the elevator doors and the security guard, and left the building at 9:38 p.m. At trial, Thomas did not contest that he arrived at and departed from Crestview Apartments in this manner and at these times.[5]

         (8) Approximately six minutes after Thomas left Crestview Apartments, police received a report of shots fired.

         (9) Another Wilmington police officer, Detective Puit, testified that the distance between the Crestview Apartments and the crime scene was approximately 350 feet. Detective Puit walked the route at what he considered to be a normal pace, and it took him approximately a minute and a half.

         (10) In an effort to corroborate Etta Reid's testimony that Thomas left her porch after a short visit and conversation, the State-over Thomas's objection- asked Detective Curley whether, in his opinion, the persons seen in dark clothing in two of the pizzeria videos was Thomas. Detective Curley opined that the person in one of the video clips, who was dressed in a dark jacket, blue jeans, and tan boots- just as Thomas was dressed in the Crestview video-was in fact Thomas. And when the State asked about the person in one of the other pizzeria video clips, [6] Detective Curley noted that he was wearing "dark or black pants, and . . . a knit hat or his hair's a little bit longer on top, but definitely the pants are not blue jeans."[7] Detective Curley then opined that this person was not Thomas.

         (11) In response to Thomas's objection to Detective Curley's identification testimony, the prosecutor downplayed the materiality of Curley's opinion. Nevertheless, in closing argument, the State highlighted the video evidence in service of its theory that Thomas used his brief absence from Etta Reid's porch to retrieve a gun from his girlfriend's apartment.

         (12) On appeal, Thomas argues that the Superior Court abused its discretion by allowing Detective Curley to offer his lay opinion identifying Thomas as the person depicted in one of the pizzeria surveillance videos. Additionally, Thomas argues that the State did not present sufficient evidence to establish that he concealed a deadly weapon from the ordinary sight of another person.

         (13) We review the Superior Court's evidentiary rulings for abuse of discretion. "A decision to admit testimony as relevant is within the sound discretion of the trial judge and will not be reversed absent a clear abuse of that discretion."[8]An abuse of discretion occurs when the trial judge "has exceeded the bounds of reason in view of the circumstances or so ignored recognized rules of law or practice so as to produce injustice."[9]

         (14) Under Delaware Rule of Evidence 701, if a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is (i) rationally based on the witness's perception, (ii) helpful to clearly understanding the witness's testimony or to determining a fact in issue, and (iii) is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.[10] Rule 701 "permits a lay witness to testify about his own impressions when they are based on personal observation."[11] "The ultimate question of the identity . . . remains one for the jury to decide, and lay opinion testimony ...

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