ALEX J. DURHAM, Defendant-Below, Appellant,
STATE OF DELAWARE, Plaintiff-Below, Appellee.
November 13, 2019.
Closed December 19, 2019.
Below: Superior Court of the State of Delaware. I.D. No.
1805019020A & 1805019020B.
VALIHURA, VAUGHN and TRAYNOR, Justices.
L. Valihura, Justice.
this 3rd day of December 2019, having considered the briefs
and the record below, it appears to the Court that:
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
. 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.
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."
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
Bird and Drummond declined to identify Durham as the intruder
in the possible home invasion.
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.
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). 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 ...