Submitted: January 9, 2019
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
F. TRAYNOR JUSTICE.
26th day of March, 2019, after careful consideration of the
parties' briefs and the record on appeal, it appears to
the Court that:
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,  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.
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.
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." 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.
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." 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.
Deshannon died three days later as a result of the gunshot
wounds he sustained that evening.
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
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
Approximately six minutes after Thomas left Crestview
Apartments, police received a report of shots fired.
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.
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,  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." Detective Curley then opined that
this person was not Thomas.
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
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.
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."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."
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. Rule 701 "permits a lay witness to
testify about his own impressions when they are based on
personal observation." "The ultimate question of
the identity . . . remains one for the jury to decide, and
lay opinion testimony ...