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Durham v. State

Supreme Court of Delaware

December 3, 2019

ALEX J. DURHAM, Defendant-Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff-Below, Appellee.

          Submitted: November 13, 2019

          Court Below: Superior Court of the State of Delaware I.D. No. 1805019020A & 1805019020B

          Before VALIHURA, VAUGHN and TRAYNOR, Justices.

          ORDER

          Karen L. Valihura Justice

         On this 3rd day of December 2019, having considered the briefs and the record below, it appears to the Court that:

         (1) On February 18, 2019, after a two-day bench trial, the Superior Court convicted Alex J. Durham of unlawful firearm possession, resisting arrest, and tampering with evidence. On appeal, Durham contends that the court abused its discretion by considering prior bad act evidence, namely, a possible home invasion, that he contends was used to establish his identity under Delaware Rule of Evidence 404(b) without conducting an analysis under Getz v. State.[1] Durham argues further that had the trial court undertaken a Getz analysis, it would have found the evidence inadmissible. Although the possible home invasion was mentioned in testimony, we find that any error in introducing it was harmless error given the other evidence in the record that supports Durham's conviction. We also question the applicability of D.R.E. 404(b) to the testimony at issue.

         (2) On May 28, 2018, Detective Tim Mullaney responded to a possible home invasion at 317 West Division Street in Dover. When he arrived, he made contact with individuals "Bird" and "Drummond," who described the intruder as "a black male, gray sweatshirt, dark pants with a gun [who] had just left the property towards New Street."[2]

         (3) Responding officers canvassed the area and spotted Durham, who matched the description of the intruder. A foot chase ensued. Patrolman Spicer testified that he saw Durham with a gun in his hand, but lost sight of him for three to five seconds toward the end of the pursuit. The chase ended with Durham lying face down in a yard and without a gun. After searching the area, Patrolman Spicer found a firearm lying in the grass on the other side of a fence from where Durham was apprehended. The firearm had fresh mud and grass on it but no surface rust.

         (4) Bird and Drummond declined to identify Durham as the intruder in the possible home invasion.

         (5) Durham was charged with (1) Possession of a Firearm by a Person Prohibited, (2) Possession of Firearm Ammunition by a Person Prohibited, (3) Carrying a Concealed Deadly Weapon, (4) Tampering with Physical Evidence, (5) Resisting Arrest, and (6) Receiving a Stolen Firearm. He was not charged with the possible home invasion.

         (6) Before trial, Durham's counsel and the State conferred with the court about Detective Mullaney introducing into evidence Bird and Drummond's description of the intruder. The State said that it would be introducing this statement into evidence as an excited utterance under D.R.E. 803(2). When Durham's counsel indicated that he would be objecting, the State explained that it would be tailoring the testimony narrowly to avoid triggering D.R.E. 404(b).[3] The State further described the substance of the anticipated testimony:

I have spoken with Detective Mullaney about what testimony should come in and should not come in regarding the statements that were made at the scene, and I believe he will, one, discuss that the two individuals were very upset. He used the term irate. Yelling and cursing. Visibly distraught.
When they finally were spoken to by the police officer, one of them was Mullaney and the other one was Corporal Turner with the Dover Police, Drummond indicated that a black male wearing a gray sweatshirt and dark-colored pants had a handgun.
And Byrd [sic] indicated that he heard a commotion outside - - it may not have been outside - - he heard a commotion and he saw a black male with a handgun. So I wanted to keep it tailored to just the description and not to uncharged events that the police believe occurred that night.[4] Counsel for Durham said he "may not have an objection" if "that's the only purpose of [Bird's and ...

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