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Morris v. State

Supreme Court of Delaware

May 13, 2019

ANTHONY E. MORRIS, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: March 27, 2019

          Court Below: Superior Court of the State of Delaware Cr. ID Nos. 1702013025 and 1702012586

          Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.


          James T. Vaughn, Jr. Justice

         On this 13th day of May 2019, upon consideration of the parties' briefs and the record on appeal, it appears that:

         (1) The appellant, Anthony E. Morris, was found guilty by a Superior Court jury of several crimes that occurred during two related incidents on February 18, 2017-one in the morning and the other later in the day following his release on bail from the first incident. The same jury also found him guilty of violating the terms of his bond and engaging in witness intimidation while he was in in jail awaiting trial for the February 18 incidents. On appeal, Morris asserts five claims. The first pertains to his conviction for the offense of home invasion. The home- invasion charge arose from the second February 18 incident. He contends the Superior Court erred by not setting aside his conviction for that offense because the jury was unable to agree on a verdict on a predicate offense of rape in the first degree. Second, he contends the Superior Court erred in failing to hold a proof-positive hearing under 11 Del. C. § 2116 in connection with his bail on the first February 18 incident after he was arrested for the second February 18 incident. Third, he contends the Superior Court erred in not suppressing recordings of phone conversations he had while in prison awaiting trial because the subpoena used to obtain the recordings was overly broad and invalid under the United States and Delaware Constitutions. Fourth, he contends the Superior Court erred in admitting these recordings into evidence because the State did not lay a proper foundation for their admission. Finally, he contends the Superior Court erred in denying his motion for a mistrial because delayed disclosure of Brady[1] material prejudiced his defense. We reject all of Morris's contentions and affirm.

         (2) On the morning of February 18, 2017, Seaford Police Officer Kyle Jones reported to a motel to investigate a domestic incident occurring in the parking lot. When Officer Jones drove to the motel's rear parking lot he observed Morris standing near a vehicle. Once Officer Jones pulled up behind the rear of the vehicle, he observed Morris standing between the open driver's door and the vehicle and Jennifer Middleton in the driver's seat with her legs pointed out. According to Officer Jones, "Morris appeared to be standing in between her legs so that she couldn't get out."[2] As Officer Jones approached, Morris looked at him and then "looked back at Ms. Middleton and struck her with an open hand," hitting her "[i]n her face."[3] Jones immediately pulled Morris off Middleton and placed him under arrest.

         (3) Morris was arraigned via a video phone, and the judge imposed unsecured bail with a condition that Morris have no contact with Middleton. At 12:14 p.m., after the no-contact order was explained to Morris and he indicated he understood it, Morris was released from the Seaford Police Department. Officer Jones called Middleton, who had returned to her apartment in Laurel, and informed her of Morris's release and the no-contact order.

         (4) The second incident occurred later that same day, shortly after Morris was released. Morris went to Middleton's apartment and began kicking her front door and demanding to be let inside. Middleton did not want him in her apartment, but she also did not want him to kick in her door. Concerned with the noise and afraid someone might report the incident to her landlord, she opened the door to try to "diffuse the situation."[4]

         (5) Once inside her apartment, Morris accused her of getting him in trouble and started punching her. Middleton "tried to run upstairs so [she] could lock the door," but Morris grabbed her and threw her on the couch. [5] According to Middleton, he then took off her underwear and pulled down his pants; she repeatedly told him no and asked him to stop; she tried to get up, but he was on top of her holding her down; and he then began having sexual intercourse with her, while she continued telling him to stop. When he finished, she got up and ran upstairs to the bathroom, locked the door, and took a bath. Morris then left her apartment.

         (6) Following her bath, Middleton called the police to report the incident. Police officers subsequently arrived at her apartment, and Middleton was taken to the hospital. At the hospital, a nurse conducted a forensic examination. As part of the examination, the nurse photographed Middleton's injuries and conducted a vaginal examination, during which she observed "a copious amount of white fluid located in her vaginal wall" that was "consist [sic] with semen."[6] According to the medical records, Middleton was examined at 3:15 p.m. Later that day, at approximately 7:45 p.m., after Middleton was released from the hospital, Detective Christopher Story, the chief investigating officer, went to Middleton's apartment to take photographs of the scene.

         (7) For the events that occurred on February 18, Morris was indicted on charges of home invasion, rape in the first degree, strangulation, assault in the second degree, two counts of noncompliance with bond, assault in the third degree, kidnapping in the first degree, misdemeanor theft, and misdemeanor criminal mischief.

         (8) Because at least one charge from each of the February 18 incidents was a violent felony, 11 Del. C. § 2116 came into play. That section applies if a person is arrested for a violent felony and released on bail and, while released, is arrested for a second violent felony. It provides that the person's bail on the original charge "shall be temporarily revoked by any court" becoming aware that the person is subject to § 2116.[7] It further provides that the person "shall be brought before the Superior Court."[8] If, after a hearing, the Superior Court finds that there is "proof positive or presumption great" that the person committed the subsequent offense, the court "shall" then revoke bail on the original offense.[9] If that occurs, the court must then set cash-only bail on the original offense in an amount at least twice as much as the original bail.[10]

         (9) A proof-positive hearing was scheduled for Morris to be held on March 16, 2017. On that day Morris appeared with counsel for the hearing. The State also appeared. Rather than proceeding directly with the proof-positive hearing, the parties and the court discussed the fact that some of the indicted charges arising out of the first February 18 incident differed from the charges that Morris had been arrested for and that bail had not yet been set on these different charges. The Superior Court then proceeded to set bail on those charges for which bail needed to be set. At the conclusion of that process, Morris was subject to bail of $205, 000, cash only, for the charges that differed in the indictment and for the charges arising out of the second February 18 incident. The State then indicated its satisfaction with bail and waived the proof-positive hearing. Morris had subpoenaed Middleton to appear for the hearing with the intent of calling her as a witness and examining her about the incidents in question. His counsel insisted that the hearing go forward. Since the State was content with bail without a § 2116 hearing, however, the Court decided that there was no need for a hearing, and none was held. Morris's bail for the original charges was not increased.

         (10) While at Sussex Correctional Institution (SCI) awaiting trial, Morris made two calls to Middleton, indirectly through a third party, in violation of the no-contact order. The State issued an Attorney General subpoena to SCI for "all phone recordings for inmate Anthony Morris as well as any calls placed to [two specific phone numbers] from February 18, 2017 thru present [May 1, 2017]."[11] SCI produced all of Morris's recorded phone conversations as requested. Morris, arguing that the Attorney General subpoena was overbroad, moved to suppress the recordings. The Superior Court denied his motion.

         (11) Following a review of the recordings, Morris was re-indicted to add four additional counts of noncompliance with bond, two counts of act of intimidation, and one count of conspiracy in the second degree for the communications he had with Middleton (and others) while he was in prison awaiting trial.

         (12) At trial, the State sought to introduce the recordings of the phone calls Morris made while in prison that related to Morris's efforts to get Middleton to drop the charges. Sergeant Brian Hubbs, a facility investigator at SCI who handles the subpoena processing for SCI's inmate telephone system, testified as to the process of logging inmates' calls based on each inmate's State Bureau of Investigation (SBI) number and the process by which an inmate makes a call, explaining that the inmate must first enter his unique SBI number and then verify his voice with the system before placing a call.[12] He testified that Morris's call log, which was admitted into evidence, was accurate and automatically generated by the computer based on Morris's SBI number and the requested date range. He further testified that the log "is a que list file of a series of telephone calls that were burnt at the State's request under subpoena"[13] and that he "provide[d] recordings of the calls to the State."[14]Middleton testified as to each recording to identify Morris as the caller. As mentioned, two of the calls were to a third party who then added Middleton to the call. Since she was a party to those two phone calls, she identified two of the recordings as those two calls. Although her voice was not on the other recordings, she was able to identify the speakers on four subsequent recordings as being Morris and his friend Jeremiah Handy because she recognized their voices.

         (13) Morris objected to the admission of these recordings. He argued that there was not a proper foundation because the State had not shown that the recordings had not been altered. The Superior Court overruled his objection following a voir dire of Middleton. It found that her testimony, which established that Morris was the originator of each call and that the other party to each call (other than herself) was Handy, paired with Sergeant Hubbs's testimony regarding the prison phone system, was sufficient to support a finding that the recordings were what the State claimed them to be and, therefore, admissible under Delaware Rule of Evidence 901(a).

          (14) During his testimony, Detective Story revealed for the first time, on cross-examination, that he had spoken to two individuals who were standing outside, across the courtyard from Middleton's apartment when he went there to take pictures the evening after the second February 18 incident. He asked them whether they "heard or saw anything."[15] He testified that they told him they had not seen or heard anything and that they said "[t]hey didn't know nothing [sic]," although he could not recall if he had specified a time frame when he asked whether they had seen or heard anything.[16] He said that the response of the two individuals was common practice and that "in the apartment complexes in Laurel, nobody talks to the cops. So being in uniform, I asked, and nobody saw anything."[17] He did not make a report of this contact or the names of the individuals.

         (15) Following the detective's testimony, Morris moved for a mistrial on the grounds that the statements of the two individuals that they had not seen or heard anything was undisclosed Brady material. The Superior Court denied this motion, finding that Morris was able to make effective use of the evidence because it was before the jury and counsel would be able to include it in Morris's closing argument. Then, citing Deberry v. State, [18] Morris sought "an instruction that the jury has to accept that neighbors that were there didn't hear anything or didn't see anything."[19]The Superior Court denied the request.

         (16) During his closing argument, Morris highlighted the fact that the two individuals told Detective Story the evening of the second incident that they had not seen or heard anything and that he failed to note this in his report: "They said, We didn't see anything, we didn't hear anything. He characterized that-instead of making a report of it and taking the people's names, he characterized that as they just don't want to cooperate with the police. I won't make a report of it. I won't do anything."[20]

         (17) At the conclusion of the trial, the jury failed to reach a verdict on the charge of rape in the first degree, found Morris not guilty of strangulation, and found him guilty of home invasion and the rest of the indicted charges.[21]

         (18) Morris's first claim on appeal is that the Superior Court erred in not vacating, or setting aside, his conviction for home invasion. He argues that a finding of guilt on the rape charge was a predicate to a finding of guilt on the home-invasion charge. Since the jury was unable to reach a verdict on the rape charge, he argues, an element of the home-invasion charge was not proved and the verdicts were inconsistent. For these reasons, he argues, the conviction for home invasion must be vacated. Whether a jury's guilty verdict on the home-invasion charge is inconsistent with its failure to reach a verdict on the rape charge is a question of law subject to de novo review.[22]

         (19) There are a number of elements to the crime of home invasion, but for purposes of this appeal it is sufficient to state that a home invasion occurs when a person enters or remains unlawfully in a dwelling with the intent to commit a violent felony therein, and while in the dwelling commits or attempts to commit one of six designated felonies.[23] The indictment in Morris's case charged him, in pertinent part, with having entered or remained in Middleton's apartment with the intent to commit a violent felony therein, and when in the dwelling, "the defendant committed or attempted to commit the felony of Rape."[24] Morris asserts that his conviction for home invasion should have been vacated for two reasons. First, he contends that it should have been vacated because the jury was unable to reach a verdict on the predicate charge of rape and the State's evidence at trial was insufficient to support a conviction of attempted rape. Second, and alternatively, he contends that it should have been vacated because the jury instructions did not provide adequate legal guidance as to the elements of an attempt.

         (20) It should first be noted that a conviction for rape or attempted rape is not an element of the offense of home invasion. The element of home invasion in issue is the fact of the commission or attempted commission of rape. Both of Morris's arguments as to this issue fail for the same reason: the rule of jury lenity. "Under the rule of jury lenity, this Court may uphold a conviction that is inconsistent with another jury verdict if there is legally sufficient evidence to justify the conviction."[25] Here, the parties focus exclusively on attempted rape, but this misses the point. Middleton testified that Morris actually raped her. Her testimony was supported by the pictures of her injuries taken at the hospital and by the nurse's testimony that there was a fluid consistent with semen in her vagina. Viewed in the light most favorable to the State, this evidence establishes that a rational fact finder could have found Morris guilty beyond a reasonable doubt of home invasion.[26] Because this evidence is sufficient to sustain the conviction of home invasion, any inconsistency between the guilty verdict on the charge of home invasion and the jury's failure to agree on the charge of rape in the first degree is of no avail to Morris, and there is no need to consider the sufficiency of the evidence or the instructions as to attempted rape.

         (21) Morris's second argument is that the Superior Court erred in denying his request that the court proceed with the proof-positive bail hearing despite the State waiving its request that his bail for the first February 18 incident be revoked and that bail at least twice the amount originally set be imposed for the original charges. He contends that a proof-positive hearing was mandatory because the statute, 11 Del. C. § 2116(b), provides that the defendant "shall be brought before the Superior Court." We review questions of statutory interpretation de novo.[27]

         (22) The statute provides that "if after release [on the first offense] the defendant is charged by arrest . . . with the commission of a subsequent offense, that defendant shall be brought before the Superior Court."[28] It then provides, "If after a hearing, the Superior Court finds proof positive or presumption great that the defendant has committed [the] subsequent offense during such period of release . . . the Court shall revoke" the defendant's bail on the original offense[29] and impose a cash-only bail at least twice the amount of the bail originally set.[30] Morris was "brought before the Superior Court"[31] on the day his proof-positive hearing was scheduled. But once the court set bail for the charges alleged to have occurred after the first February 18 incident and for the charges from the first incident that differed in the indictment, the State was content with not seeking to have Morris's bail increased for the unchanged first-incident charges. This eliminated the need to have the proof-positive hearing. Section 2116 does not create a right of discovery for a defendant. The Superior Court did not err in deciding that the hearing was not necessary.

         (23) Morris's third argument is that the Superior Court erred in not suppressing the recordings of Morris's prison phone calls. He contends that the subpoena used to obtain the recordings violated his federal and state constitutional rights because it required the production of materials that were not relevant to the investigation and covered an unreasonable period of time. We review alleged constitutional violations de novo.[32]

         (24) "The Fourth Amendment to the United States Constitution requires that a subpoena for the seizure of documents be reasonable."[33] To be reasonable, a subpoena must: (1) "specify the materials to be produced with reasonable particularity," (2) "require the production only of materials relevant to the investigation," and ...

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