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Defendant was convicted of crimes related to the attempted murder of the victim on January 26, 2006, and the subsequent murder of the victim on April 2, 2007. On appeal, defendant contended that the trial court abused its discretion by denying defendant's motion to sever the trial of the attempted murder case from the murder case; that his right to a fair trial before an impartial jury was violated when the evidence presented at trial did not clearly and convincingly establish the State's proffered "other crime" evidence of motive, due to the unwillingness of a State witness to testify; and his due process rights were violated when the trial judge denied his motions to suppress two separate pretrial eyewitness identifications. The court held that defendant's arguments were without merit and therefore, affirmed the judgments of the Superior Court.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
No. 406, 2010
Court Below – Superior Court
of the State of Delaware,
in and for New Castle County
Cr. I.D. No. 0704002316
Submitted: August 24, 2011
Decided: September 14, 2011
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and
RIDGELY, Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. AFFIRMED.
Patrick J. Collins, Esquire (argued) and Jennifer-Kate Aaronson,
Esquire, Aaronson, Collins & Jennings, LLC, Wilmington, Delaware, for
Paul R. Wallace, Esquire (argued) and Maria T. Knoll, Esquire,
Department of Justice, Wilmington, Delaware, for appellee.
A grand jury indicted Jamaien Monroe (“Monroe”) on one count of
Murder in the First Degree, one count of Attempted Murder in the First
Degree, six counts of Possession of a Firearm During the Commission of a
Felony, four counts of Reckless Endangering in the First Degree, two counts
of Possession of a Deadly Weapon by a Person Prohibited, and three counts
of Endangering the Welfare of a Child. This indictment consolidated two
incidents. Counts 12-14 related to the January 26, 2006 attempted murder of
Andre Ferrell (“Ferrell”) and Counts 1-11 related to the April 2, 2007
murder of Ferrell.1 The jury found Monroe guilty of the Murder in the First
Degree and related charges and not guilty of the Attempted Murder and
related charges. Monroe was sentenced to life imprisonment plus twelve
Monroe has raised three issues in this direct appeal. First, he contends
that the trial court abused its discretion by denying Monroe’s motion to
sever the trial of the attempted murder case from the murder case. Second,
Monroe submits that his right to a fair trial before an impartial jury was
violated when the evidence presented at trial did not clearly and
Originally, the January 26, 2006 incident was indicted under Case No. 0601021343 and
the April 2, 2007 incident was indicted under Case No. 0704002316. Both incidents
were consolidated under Case No. 0601021343A. The Superior Court severed the two
person prohibited charges therefrom and they were segregated to Case No.
convincingly establish the State’s proffered “other crime” evidence of
motive, due to the unwillingness of a State witness to testify. Third, Monroe
argues that his due process rights under the Fourteenth Amendment to the
United States Constitution were violated, when the trial judge denied his
motions to suppress two separate pretrial eyewitness identifications.
We have concluded that each of Monroe’s arguments is without merit.
Therefore, the judgments of the Superior Court must be affirmed.
The facts are stated in chronological order.
They begin with an
uncharged attempted robbery of Ferrell by Monroe. They continue with the
attempted murder of Ferrell by Monroe the next day. The facts end fifteen
months later with the murder of Ferrell by Monroe.
On January 25, 2006, in the early evening, Ferrell, along with his
friends, Jonathan Wisher (“Wisher”), Ronald Wright, and “Sal,” went to the
G&P Deli at 28th and Market Streets in the City of Wilmington. As Ferrell
and Ronald Wright walked towards the deli, they passed by Monroe, Kason
Wright and an unknown person. Ferrell and Ronald Wright went into the
Ferrell left the deli before Ronald Wright. At trial, the State presented
circumstantial evidence that Ferrell got into a struggle with Ronald Wright
and Monroe during an attempt to steal Ferrell’s necklaces. Ferrell was left
bleeding from the back of his head and his necklace chain was broken. The
unknown individual remained in the area and said he had no knowledge of
an attempt to rob Ferrell. No criminal charges were filed.
On January 26, 2006, around 12:30 p.m., Ferrell, his uncle “Tony”
Wisher, Ronald Wright, and “Sal” were driving in the City of Wilmington.
After dropping off his uncle and picking up his brother, Aaron Mummert
(“Mummert”), Ferrell drove to the area of 23rd and Carter Streets. As they
turned left onto Carter Street, they saw a green Suburban parked partially on
the sidewalk on the left side of the street. Some of the occupants of Ferrell’s
vehicle saw Monroe in the backseat of the Suburban holding a .38 caliber
At this time, someone named “Brownie” came out into the street,
encouraging Ferrell to stop and talk. Ferrell stopped in front of and to the
right of the Suburban. The State presented evidence at trial that while
Ferrell and “Brownie” were talking, Monroe fired five or six shots towards
Ferrell’s vehicle. Upon hearing the shots, Ferrell sped off. Bullets hit his
car and Ferrell was shot in the back.
Ferrell drove to his grandmother’s house at 28th and Washington
Streets. He was taken from there to the hospital. Bullet holes were found on
the driver’s side of Ferrell’s car. Warrants were issued for Monroe’s arrest
for attempted murder, but efforts to apprehend him were unsuccessful.
Fifteen months later, on the evening of April 2, 2007, Ferrell, his
girlfriend, Shameka Brown (“Brown”), and his son went to the Village of
Crofton in Newark, Delaware to pick up Ferrell’s and Brown’s minor
daughter. While driving, Brown noticed her co-worker, Ronise Saunders
(“Saunders”), driving a later-model boxed-shaped white car.
acknowledged each other and kept driving, Saunders towards Lexington
Green Apartments where she lived, and Ferrell towards the Village of
After picking up their child, Ferrell and Brown went to Derrs’ Market
(“Derrs”), located in the Taylortowne Shopping Center in Newark,
Delaware, across the street from the Lexington Green Apartments.
Ferrell and Brown drove into Derrs’ parking lot, they again saw the white
car, this time driven by Saunders’ boyfriend (Monroe), backing out of a
parking space and exiting Derrs’ parking lot. Ferrell parked his car in front
of Derrs and went inside. Brown remained in the passenger seat of the car
with the two children in the backseat.
Ferrell was in Derrs for approximately five minutes and returned to
his car. He stood outside the driver’s side with the door open, speaking with
Brown. As Ferrell was about to get into the car, Brown saw someone
wearing a white t-shirt, blue jeans, and a partially red-colored baseball cap.
That person was holding a gun in his right hand. He approached Ferrell
from behind, shot him four or five times, and then ran toward the Lexington
New Castle County Police Officer Jane Paolo (“Officer Paolo”) was
the first police officer to arrive at the scene. She arrived within a minute or
two of getting the dispatch about a shooting. Officer Paolo attempted CPR
and confirmed that Ferrell had no pulse. Officer Paolo took Brown and the
children to her patrol vehicle. At this time, Brown told Officer Paolo that
the shooter looked like her co-worker’s (Saunders’) boyfriend.
At the time of the shooting, several people were in the parking lot,
including Katharine Meier (“Meier”), who was going to the liquor store to
purchase lottery tickets. As Meier was exiting her car, she heard five loud
bangs coming from the area of Derrs. She heard screaming and turned to see
Ferrell lying next to his car in front of Derrs. From approximately twenty
yards away, Meier noticed a medium-tall, husky, black man with a pudgy
face, wearing a white t-shirt, blue jeans, and a red and white baseball cap,
backing away and then walking quickly through the parking lot. She went
into the liquor store to ask someone to call 911. When Meier came back
outside, she saw that same person running across the street into the Avalon
Building of the Lexington Green Apartments.
Around the time of the homicide, Kimberly Klosowski (“Klosowski”)
and Diamonyell Bateman (“Bateman”) were sitting outside their Lexington
Green apartment buildings. Klosowski was watching the children playing in
the front of the Drury building of the Lexington Green Apartments. She saw
a black man, wearing a white t-shirt, blue jeans, and a red cap, running from
the Edison building, through the Avalon building and into the parking lot of
Derrs. Within the next thirty seconds, Klosowski heard gunshots coming
from the area of Derrs. As she gathered the children to go inside, Klosowski
saw the same man running back towards the apartment complex and through
the Avalon building. Bateman was sitting at the picnic tables in front of the
Lasalle building when she heard gunshots and saw a black man with a white
t-shirt and red baseball hat run from Derrs towards the laundromat.
Officer Paolo transported Brown to the New Castle County Police
Department and left her with Detective Diane Smith (“Detective Smith”),
the chief investigating officer. Officer Paolo told Detective Smith about
Brown’s statement that the shooter looked liked her co-worker’s (Saunders’)
boyfriend. Brown’s initial description of the shooter was that of a stocky
black male, who was taller than Detective Smith (approximately 5’5”), with
minimal facial hair and a caramel complexion, wearing a red, blue, and
white hat, each panel of the hat with a different color. Brown selected
Monroe as Ferrell’s assailant out of a six-person photographic lineup. Two
days later, Meier went to the New Castle County Police Department. After
viewing a six-person lineup, Meier identified Monroe’s photograph as most
like the man that she saw walking in the parking lot and running in the area
of the Lexington Green Apartments.
Videotape from the Derrs’ store depicted a man who looked like
Monroe, wearing a black and red jacket in the market, in the immediate area
prior to Ferrell’s arrival. During a search of Saunders’ apartment, located in
the Lexington Green Apartments in the Edison Building, the police found a
jacket fitting the description of the one seen in the videotape.
Further investigation revealed that Saunders owned a 1987 white fourdoor Mercury Marquis. The white Mercury Marquis was found unoccupied
in Chester, Pennsylvania on April 10, 2007. Despite police attempts to find
Saunders after Ferrell’s homicide, she was not located before the February
2009 trial date.
Severance Properly Denied
In a consolidated indictment, Monroe was charged with the Attempted
Murder of Ferrell on January 27, 2006 and Murder in the First Degree for
killing Ferrell on April 2, 2007. On appeal Monroe argues that the denial of
his motion to sever “resulted in substantial injustice.” According to Monroe,
the joint trial of the two shootings of Ferrell “permitted the jury to use
evidence from the attempted murder case to infer a general criminal
disposition of Mr. Monroe to do harm to Andre Ferrell.”
This Court reviews the Superior Court’s denial of a motion to sever
charges under an abuse of discretion standard.2 The denial of a motion to
sever the trial of multiple offenses will not be disturbed on appeal unless a
defendant demonstrates a “reasonable probability that substantial prejudice
may have resulted from a joint trial.”3
Superior Court Criminal Rule 8(a) allows multiple offenses to be
charged in the same indictment provided that one of the following
circumstances exists: the offenses are of the same or similar character; the
offenses are based on the same act or transaction; the offenses are based on
two or more connected acts or transactions; or the offenses are based on two
Caldwell v. State, 780 A.2d 1037, 1055 (Del. 2001).
Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988).
or more acts or transactions constituting parts of a common scheme or plan.4
Monroe does not contest the initial consolidation of the charges relating to
both shootings in one indictment.
Rule 8 “is designed to promote judicial economy and efficiency,
provided that the realization of those objectives is consistent with the rights
of the accused.”5 Therefore, when it appears that the defendant is unduly
prejudiced by a joinder of offenses in an indictment, the Superior Court may
sever the offenses and order separate trials even though the offenses were
properly joined in the same indictment.6 In making that determination, the
trial court must balance the rights of the accused against the legitimate
concern of judicial economy to be achieved by a joint trial.7 Delaware
courts have recognized at least three situations in which prejudice arises:
(1) an accumulation of evidence of the various crimes to
establish guilt, when the separate consideration of the evidence
would not lead the jury to so find; (2) a consideration of the
evidence of one of the crimes would lead the jury to infer a
general criminal disposition of the defendant to commit the
crimes charged; and (3) the confusion of the jury or
embarrassment to the defendant resulting from the presentation
of different offenses to the joined offenses.8
Monroe focuses on the second of these concerns.
Del. Super. Ct. Crim. R. 8(a).
Mayer v. State, 320 A.2d 713, 717 (Del. 1974).
Del. Super. Ct. Crim. R. 14; State v. McKay, 382 A.2d 260, 262-63 (Del. Super. Ct.
Mayer v. State, 320 A.2d at 717.
State v. McKay, 382 A.2d at 262; Caldwell v. State, 780 A.2d at 1055.
The defendant has the burden of demonstrating that there is a
reasonable probability that a joint trial caused substantial prejudice9 to his
defense.10 A crucial factor to be considered by the trial judge in ruling on a
motion to sever is whether the evidence of one crime would be admissible in
the trial of the other crime.11 If such evidence were admissible at a separate
trial, there would be no unfair prejudice in having a joint trial.
“It [is] well established that evidence of other crimes [is] not, in
general, admissible to prove that the defendant committed the offense
charged.”12 Despite this general prohibition on evidence of “other crimes,
wrongs or acts,” Delaware Rule of Evidence (“D.R.E.”) 404(b) provides
Evidence of other crimes, wrongs or acts . . . may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident.
Skinner v. State, 575 A.2d 1108, 1118 (Del. 1990) (citing Younger v. State, 496 A.2d
546, 549-50 (Del. 1985)).
Caldwell v. State, 780 A.2d at 1055 (citing Wiest v. State, 542 A.2d at 1195).
Weist v. State, 542 A.2d at 1195 n.3 (citing Bates v. State, 386 A.2d 1139, 1142 (Del.
Getz v. State, 538 A.2d 726, 730 (Del. 1988) (citing Bantum v. State, 85 A.2d 741, 745
Such “evidence of prior misconduct is admissible when it has ‘independent
logical relevance’ and when its probative value is not substantially
outweighed by the danger of unfair prejudice.”13
D.R.E. 404(b) permits the admission of evidence that the accused
committed “other crimes” to show motive, intent, identity and consciousness
In this case, the trial judge concluded that evidence of the
attempted murder would be admissible at a separate murder trial to show
Monroe’s motive and intent to kill Ferrell. The trial judge’s ruling stated, in
Moreover, the court believes that severance would ultimately be
a drain on judicial economy. If this court were to grant
severance, the Murder First Degree case would presumably be
tried first, and Delaware Rule of Evidence 404(b) would very
likely allow the introduction in the murder trial of the evidence
of the attempted murder as part of motive and/or intent.
The State submits that the Superior Court properly ruled that evidence
of Monroe’s attempt to kill Ferrell would be admissible at a separate murder
trial to prove his intent to cause Ferrell’s death and as a motive to eliminate
Ferrell as a witness to the attempted murder. Accordingly, the State argues,
that evidence was not introduced to show that Monroe had a propensity to
act violently. Instead, the State contends, evidence of the attempted murder
Id. See also Del. R. Evid. 403; Diaz v. State, 508 A.2d 861, 865 (Del. 1986).
was both relevant and admissible to establish that Monroe had the intent and
a motive to kill Ferrell.
Generally, “upon the trial of a criminal case, acts, conduct, and
declarations of the accused occurring after the commission of an alleged
offense which are relevant and tend to show a consciousness of guilt or a
desire or disposition to conceal the crime are admissible in evidence.”14 The
State argues that evidence of a continued intent to kill Ferrell and to
eliminate Ferrell as a witness to the attempted murder meets those criteria
for admissibility.15 We agree.
This Court addressed the same issue in Stevenson v. State.16
Stevenson, the defendant was on trial for the capital murder of Kristopher
Heath (“Heath”). There, the State’s theory was that Heath was murdered to
eliminate him as a witness at Stevenson’s pending trial for theft.
establish that motive, the State sought to introduce evidence of the pending
theft charges against Stevenson and Heath’s role as the State’s key witness.
The Superior Court concluded that this “other crime” evidence was
Goldsmith v. State, 405 A.2d 109, 114 (Del. 1979) (proper to admit “the disputed
evidence of defendant’s attempts to bribe and criminally assault . . . the State’s
See Lovett v. State, 516 A.2d 455, 468-69 (Del. 1986).
Stevenson v. State, 709 A.2d 619 (Del. 1998).
admissible after conducting an analysis pursuant to D.R.E. 404(b) and this
Court’s holding in Getz v. State.17
Although evidence of “other crimes” is generally inadmissible, motive
is an exception expressly recognized by Rule 404(b). The State’s evidence
of Stevenson’s “other crimes” at his murder trial established that Heath, as
the chief investigating security officer at the department store where the
thefts took place, was the primary witness against Stevenson. This Court
held that “[t]he record supports the Superior Court’s conclusion that this
evidence was highly probative to the State’s case and not unfairly prejudicial
In Monroe’s case, at the time of Ferrell’s murder, charges had been
pending against Monroe for more than a year for the attempted murder of
Ferrell. The State’s theory was that Monroe intended to kill Monroe fifteen
months later because of personal animus, and also to eliminate Ferrell as a
witness at Monroe’s attempted murder trial. Here, for the reasons stated in
Stevenson, we also conclude that the attempted murder evidence was highly
probative to the State’s murder case and not unfairly prejudicial to Monroe.19
Getz v. State, 538 A.2d 726 (Del. 1988).
Stevenson v. State, 709 A.2d at 632.
Id. See also United States v. Covington, 565 F.3d 1336, 1341-42 (11th Cir. 2009);
United States v. Siegel, 536 F.3d 306, 316-19 (4th Cir. 2008).
Nevertheless, Monroe argues that the Superior Court erred in
concluding that if the motion to sever were granted, the evidence of the
attempted murder would have been admissible at the severed murder trial.
In support, Monroe contends that the evidence of the attempted murder
would not have been admitted at a severed murder trial because it was sparse
Specifically, Monroe argues that the attempted murder
evidence would not survive a Getz analysis because the eyewitness
testimony was not credible. That argument goes to the weight of the State’s
evidence and not its admissibility. This Court has held that under a Getz
analysis, sworn testimony constitutes clear and convincing evidence for
purposes of admissibility, with credibility to be decided by the trier of fact.20
Whether two crimes are joined for a single trial or the “other crime”
evidence is introduced at a separate trial, the most important consideration is
to carefully instruct the jury on how to consider and use the evidence of
different crimes. If the other crime evidence is introduced at a separate trial
pursuant to D.R.E. 404(b), the jury must be given a limiting instruction.21
That was done in Stevenson’s case. If the other crime evidence is presented
to sustain a separate charge at a single trial following a multi-count or
consolidated indictment, as in Monroe’s case, the jury must be carefully
Howard v. State, 549 A.2d 692, 694 (Del. 1988).
Getz v. State, 538 A.2d at 734.
instructed on how to evaluate the other crime evidence. That was done in
When the trial judge denied Monroe’s pretrial severance motion, he
correctly recognized that he should give a “separate charge” instruction to
the jury. The trial judge instructed the jury as follows:
The defendant is charged in Counts 1 through 10 with criminal
charges relating to the incident on April 2, 2007 and, in Counts
11 and 12, with criminal charges related to the incident on
January 26, 2006. These are separate and distinct offenses and
must, therefore, be independently evaluated by you. Just
because you reach a conclusion with regard to the other
offenses does not mean you need to reach a similar conclusion
as to any of the other charges. Again, each charge is separate
and distinct, and you must evaluate evidence as to one
independently from evidence as to the others.
This Court has held that such an instruction effectively mitigates any
potential prejudice when a defendant is tried for two separate attacks against
a single victim.22 The jury is presumed to have followed that instruction.23
In this case, the record supports that presumption because the jury acquitted
Monroe of the Attempted Murder of Ferrell and the related charges. We
hold that the Superior Court did not abuse its discretion in denying Monroe’s
motion to sever.
Young v. State, No. 602, 2007, 2008 WL 3892792, at *2 (Del. Aug. 22, 2008).
See Capano v. State, 781 A.2d 556, 589 (Del. 2001) (“As a general rule, we must
presume that ‘the jurors followed the court’s instruction.’”) (citation omitted).
Attempted Robbery Properly Admitted
Before the trial, the State indicated that it would seek to introduce
evidence, pursuant to D.R.E. 404(b), of a prior uncharged attempted robbery
of Ferrell by Monroe, to show additional evidence of Monroe’s motive to
murder Ferrell. As has been discussed, establishing motive is a permissible
purpose for the use of other crime evidence under D.R.E. 404(b). In Getz,
we held that evidence of uncharged misconduct can be admitted under
D.R.E. 404(b) if:
(1) the evidence is material to an issue or ultimate fact in
dispute in the case; (2) the evidence is relevant to a purpose not
inconsistent with the basic prohibition against evidence of bad
character or criminal disposition; (3) the uncharged misconduct
is proved by plain, clear and conclusive evidence; (4) the act or
acts of uncharged misconduct are not too remote in time from
the charged offense; (5) the probative value of the evidence is
not substantially outweighed by the danger of unfair prejudice;
and (6) the jury is given an instruction concerning the limited
purpose for which such evidence may be heard.24
Monroe filed a motion in limine to exclude the evidence of an
attempted robbery of Ferrell. The Superior Court held a pretrial hearing, at
which the State called three witnesses, Ronald Wright, Wisher and Kason
Wright. During the pretrial testimony of Kason Wright, the State introduced
into evidence a videotaped statement, pursuant to 11 Del. C., § 3507
Getz v. State, 538 A.2d at 734.
(“section 3507”). In that statement, Kason Wright said that he was with
Monroe when Monroe attempted to rob Ferrell on January 25, 2006.
Based on the combined testimony from the State’s three witnesses, the
trial judge concluded that the facts of the uncharged attempted robbery were
supported by “plain, clear and conclusive evidence.” The trial judge denied
Monroe’s motion in limine and ruled that the attempted robbery would be
admissible as evidence of motive during Monroe’s trial for the attempted
murder and actual murder of Ferrell. In making that ruling, the trial judge
specifically noted the significance of Karon Wright’s section 3507
At trial, Ronald Wright and Wisher testified consistently with their
pretrial testimony at the hearing on Monroe’s motion in limine. Kason
Wright, however, refused to testify at trial, invoking his Fifth Amendment
right against self-incrimination. Since Kason Wright did not testify, the trial
judge properly ruled that his videotaped section 3507 statement was
inadmissible at trial.25
Following his conviction for Ferrell’s murder, Monroe moved for a
new trial, asserting that the jury did not hear “plain, clear, and conclusive”
evidence of the prior uncharged attempted robbery, and therefore, no
Woodlin v. State, 3 A.3d 1084, 1087-88 (Del. 2010).
evidence of that crime should have been admitted at trial. The trial judge
denied Monroe’s motion for a new trial, ruling that the testimony of Wisher
and Ronald Wright provided the “plain, clear, and conclusive” evidence that
was necessary to show the attempted robbery and Monroe’s motive for the
attempted murder and the actual murder of Ferrell. In this appeal, Monroe
argues that the Superior Court erred in denying his motion for a new trial.
In his motion for a new trial, Monroe did not contend that the
evidence presented at the pretrial hearing on his motion in limine was not
“plain, clear, and conclusive.” The only issue raised in Monroe’s motion for
a new trial was whether the State presented “plain, clear, and conclusive”
evidence of the prior uncharged attempted robbery at trial, since only
Wisher and Ronald Wright testified on the subject. Therefore, the Superior
Court had to determine whether the evidence presented to the jury during the
trial, which did not include either the live testimony or the section 3507
statement of Kason Wright, was “plain, clear, and conclusive.”
In ruling on Monroe’s motion for a new trial, the Superior Court
recognized that neither Ronald Wright nor Wisher testified that they saw
Monroe attempt to rob Ferrell by grabbing his necklace. Only Kason Wright
asserted (in his prior out-of-court section 3507 statement) that “Main Dane”
(Monroe) attempted to steal Ferrell’s necklace on January 25, 2006.
Nevertheless, the Superior Court held that the eyewitness testimony of
Ronald Wright and Wisher was sufficient circumstantial evidence to
establish proof of the attempted robbery by “plain, clear, and conclusive”
evidence, for the following reasons:
Despite the fact that neither Wisher nor Ronald Wright
actually saw Defendant [Monroe] commit the robbery, both
were able to place Defendant [Monroe] at the scene of the
necklace robbery. Additionally, Wisher was able to testify that
Kason Wright was fleeing up the street while another individual
was “tussling” with Ferrell.
Based on this testimony, this court finds that there was
“plain, clear, and conclusive” evidence through the testimony of
Wisher and Ronald Wright that tended, if believed by the jury,
to show that [Monroe] was involved in the necklace robbery
and that the incident could tend to show a motive for [Monroe]
to attempt to murder, or to murder, Ferrell. Numerous
Delaware cases involving eyewitness testimony have held that
the requirement of “plain, clear, and conclusive” is a credibility
question for the jury.26 It was up to the jury to assess the
testimony of both Ronald Wright and Jonathan Wisher,
determine the credibility of the testimony, and draw any
permissible inferences from that testimony. . . .27
Even though neither Wisher nor Ronald Wright testified
that either saw Monroe rob Ferrell, evidence of that robbery
was “plain, clear, and conclusive” because those two
eyewitnesses testified that [Monroe] was present when Ferrell
was robbed, and the jury was permitted to assess the credibility
See, e.g., Pope v. State, 632 A.2d 73, 77 (Del. 1993) (holding that “the testimony of
various eyewitness accounts and Pope’s flight from the scene provided ‘conclusive’
evidence of that uncharged misconduct.”); Howard v. State, 549 A.2d 692, 694 (Del.
1988) (holding that “[t]he trial judge properly ruled that [eyewitness’s] testimony plainly,
clearly and conclusively proved the ‘other crimes.’ [The eyewitness’s] credibility was
for the jury to assess.”); see also Renzi v. State, 320 A.2d 711, 712-13 (Del. 1974).
See Howard v. State, 549 A.2d at 694.
of that testimony, draw permissible inferences, including
whether [Monroe] had a motive to attempt to murder, or to
actually murder, consider other evidence in the trial, and
consider whether [Monroe] was, indeed, involved in the
necklace robbery. Even without the testimony of Kason
Wright, evidence of the prior uncharged necklace robbery was
“plain, clear, and conclusive.”
It is well established that eyewitness testimony can be used to satisfy
the requirement that evidence of uncharged misconduct be “plain, clear, and
Kason Wright’s section 3507 statement, which was not
admitted into evidence at trial, would have been direct eyewitness evidence
of Monroe’s attempt to rob Ferrell. However, Wisher and Ronald Wright’s
eyewitness testimony was circumstantial evidence of Monroe’s attempt to
We review the denial of a motion for judgment of acquittal de novo to
determine “whether any rational trier of fact, viewing the evidence in the
light most favorable to the State, could find the defendant guilty beyond a
For purposes of that inquiry, this Court does not
distinguish between direct and circumstantial evidence of a defendant’s
Similarly, for purposes of deciding whether evidence of a
Pope v. State, 632 A.2d at 77.
Seward v. State, 723 A.2d 365, 369 (Del. 1999) (quoting Robertson v. State, 596 A.2d
1345, 1355 (Del. 1991)).
Hardin v. State, 844 A.2d 982, 989 (Del. 2004) (quoting Cline v. State, 720 A.2d 891,
892 (Del. 1998)).
defendant’s prior uncharged misconduct is plain, clear, and conclusive, this
Court will not distinguish between direct and circumstantial evidence. Since
that distinction is the only basis for Monroe’s argument, we hold that the
record supports the Superior Court’s finding that Wisher and Ronald
Wright’s eyewitness testimony constituted plain, clear, and conclusive
circumstantial evidence of Monroe’s attempt to rob Ferrell.
Pretrial Identification Challenges
The trial court held a hearing and briefing on Monroe’s motion to
suppress out-of-court eyewitness identifications made by Brown and Meier.
Following that hearing, the trial judge denied Monroe’s motion to suppress
the identifications made by both witnesses, finding that the procedures
employed by police with regard to Brown and Meier were not impermissibly
suggestive and did not result in a violation of Monroe’s due process rights.
Monroe argues that the Superior Court incorrectly applied the law to the
facts of his case.
A pretrial identification procedure that is “so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification” violates the due process clause of the Fourteenth
Amendment to the United States Constitution.31 The fact that a pretrial
identification procedure is impermissibly suggestive, however, does not ipso
facto constitute a due process violation.32
An impermissibly suggestive
identification procedure must also create the danger of an irreparable
misidentification.33 If the trial court determines, under the totality of the
circumstances, that a pretrial identification procedure is impermissibly
suggestive but the identification is nevertheless reliable, evidence of the
pretrial identification will not be excluded at trial.34
In Younger, this Court noted that to determine whether a pretrial
identification will be admissible as evidence, the trial judge must apply a
First, the trial judge must determine whether the
pretrial identification procedure was impermissibly suggestive. That is, the
trial judge must decide if the identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
Second, if the trial judge determines that a lineup
procedure is impermissibly suggestive, he or she must determine whether the
Simmons v. United States, 390 U.S. 377, 384 (1968); Younger v. State, 496 A.2d 546,
550 (Del. 1985).
Manson v. Brathwaite, 432 U.S. 98 (1977).
Id.; Neil v. Biggers, 409 U.S. 188, 199 (1972).
Younger v. State, 496 A.2d at 550.
identification is nonetheless reliable.37 To determine the reliability of the
identification, the trial judge must apply the Neil v. Biggers totality of the
circumstances test and consider: first, the opportunity of the witness to view
the criminal at the time of the offense; second, the witness’ degree of
attention; third, the accuracy of the prior description; fourth, the level of
certainty demonstrated by the witness at the confrontation; and fifth, the
length of time between the crime and confrontation.38
Brown’s Pretrial Identification
Monroe claims that the police procedures in Brown’s out-of-court
identification were impermissibly suggestive based on (1) Brown’s “fund of
knowledge” coupled with police suggestions of Saunders’ involvement and
Saunders’ presence at the police station; (2) Brown’s phone discussions with
an unknown person; (3) questioning of Brown regarding her knowledge of a
link between Monroe and Ferrell; (4) police showing Brown a picture of a
white Crown Victoria; and (5) the photo array procedure. In support of that
argument, Monroe relies primarily upon the following facts:
Before Detective Smith began the recorded interview of Brown,
she showed her a photo of Ronise Saunders and confirmed that
Saunders was her co-worker. Brown was allowed to keep her
cell phone and made numerous phone calls while the officers
Neil v. Biggers, 409 U.S. at 199-200; Richardson v. State, 673 A.2d 144, 148 (Del.
1996) (citing Manson v. Brathwaite, 432 U.S. at 114).
were not in the room. Ronise Saunders was transported to the
police station for questioning and was placed in the adjacent
room to Brown. The adjoining wall had a window that was
covered over by brown construction paper. During at least one
of her phone calls, Brown referred to a “white lady” who said
that the shooter was a person who drove a white “Crown Vic.”
Detective Seth Polk testified that he was assisting in the
investigation. He showed Brown a photo of a white Crown
Victoria that he said was “related to this.” Brown stated, “I
mean, I don’t know if it’s related to it, it’s just the fact of like,
how, you know how something just coincidence, like
coincidence.” She agreed that it was the make and model of car
driven by Ronise’s boyfriend.
Detective Smith asked Brown several times whether Andre
Ferrell was acquainted with Monroe. After the last inquiry,
Detective Smith asked if Brown were to look at a photo of
“somebody we think may have been involved, do you think you
would be able to recognize them or not?” Brown agreed to give
a try. Later, Polk showed her a six-pack photo lineup, from
which she selected Monroe’s photograph, stating, “I don’t-that
looks like him for some crazy-it looks like him.”
impermissibly suggestive. He does not challenge the mix of six photographs
that were shown to Brown. Consequently, Monroe’s procedural challenge is
based upon what happened at the police station before Brown was shown the
In deciding Monroe’s motion to suppress Brown’s pretrial
identification, the trial judge applied the two-step analysis set forth in
Younger. In doing so, the trial judge considered the same arguments that
Monroe raises in this appeal. In applying step one of its Younger analysis,
the Superior Court began by noting that Monroe is primarily concerned
about the pre-identification actions that occurred as part of the exigencies of
the immediate ongoing police investigation.
One of the first things that Brown said to Officer Paolo when Officer
Paolo arrived at the crime scene was that the shooter looked like her coworker’s (Saunders’) boyfriend.
As the Superior Court noted, it was
therefore logical for the chief investigating officer (Detective Smith) to ask
Brown if Ferrell knew Saunders’ boyfriend and whether there was any
animosity between them.
The trial judge found it not surprising that
Detective Smith asked Brown those questions about Saunders’ boyfriend
more than once, since Detective Smith wanted to ascertain if there was a
reason for what appeared to be an unprovoked shooting. Similarly, in the
context of the ongoing investigation, showing Brown a photograph of a
white Crown Victoria was part of the police effort to confirm immediately
that they were looking for the correct type of car that Brown had seen
Saunders and her boyfriend driving that evening.
Because Brown told police that the assailant looked like Saunders’
boyfriend, the trial judge found it was not unexpected for Saunders to be
brought to the police station for investigatory questioning almost
immediately. Although Saunders and Brown were in adjoining interrogation
rooms that were not soundproof, that appears to have been the result of
inadequate space at the police station. Monroe also emphasizes that Brown
used her cell phone during the times the police officers were not physically
present with her. The trial judge found that it was understandable for the
police to allow Brown to use her cell phone. Brown had just witnessed the
murder of her boyfriend and she was concerned about her children who had
been with her at that time.
Monroe argues that Detective Smith should not have told Brown that
the photographs would include someone whom the police suspected.
However, immediately prior to showing Brown the lineup, Detective Polk
told Brown, “Ok, That’s basically what it is. It’s six photographs. The
person may or may not be in these photographs.” Although Monroe quotes
one of Brown’s statements during her examination of the six photos, the trial
judge noted that when Brown viewed the photographic lineup, she identified
Monroe’s photograph “definitely” as the person who killed Ferrell. Only
sometime later was Saunders told she had identified the photograph of
Saunders’ boyfriend, Monroe.39
In Hubbard v. State, this Court held the fact that police officers informed a witness
some time after the photographic lineup that she had successfully identified the
perpetrator, did not support an inference that the procedures used during the photographic
The foregoing record reflects that, because she was an eyewitness to
Ferrell’s murder, Brown was the central focus of urgent efforts by the police
to gather information about the perpetrator as quickly as possible. There is
no doubt that words and actions that precede a photographic lineup can be
impermissibly suggestive. In a recent opinion by the New Jersey Supreme
Court, the cause for concern about pre-identification actions and words were
In a comprehensive analysis, the New Jersey
Supreme Court emphasized the importance, for purposes of review, of
having a record of the words and actions that precede a pretrial
In Monroe’s case, everything that Brown heard and said in the
interrogation room was tape recorded, including her cell phone calls, when
the police officers were not in the room. The trial judge reviewed the tape
recordings of Brown and heard the witnesses’ testimony, and concluded that
the immediate need to question Brown for investigatory purposes created a
array itself were impermissibly suggestive. Hubbard v. State, 782 A.2d 264 (Del. 2001).
We note, however, that several studies have concluded post-identification confirmation
that the eyewitness correctly identified the suspect can either give the witness a false
sense of confidence or falsely enhance their recollection of the event. See Gary L. Wells
& Amy L. Bradfield, “Good, You Identified the Suspect”: Feedback to Eyewitnesses
Distorts Their Reports of the Witnessing Experience, 83 J. Applied Psychol. 360 (1998);
Jeffrey S. Neuschatz et al., The Effects of Post-Identification Feedback and Age on
Retrospective Eyewitness Memory, 19 Applied Cognitive Psychol., 435, 449 (2005);
Gary L. Wells et al., Distorted Retrospective Eyewitness Reports as Functions of
Feedback and Delay, 9 J. Experimental Psychol: Applied 42, 49-50 (2003).
State v. Henderson, 2011 WL 3715028 (N.J. Supr. Aug. 24, 2011).
pretrial identification situation that was “not perfect.”41 After undertaking
part one of its Younger analysis, however, the trial judge concluded that “the
bottom line” was that Brown’s identification of Monroe in the photo lineup
was “the product of her own memory and not because of impermissible
suggestiveness on the part of the police that gives rise to a very substantial
likelihood of irreparable misidentification.”
Despite reaching that conclusion under the first part of Younger, the
trial judge did not stop his analysis. He assumed arguendo that the pretrial
identification procedures were impermissibly suggestive, and proceeded to
the second part of a Younger analysis, as an alternative basis for his ruling.
The trial judge carefully examined the five Neil v. Biggers’ factors, as
One is the opportunity of the witness to view the criminal at the
time of the crime. Well, here Shameka Brown did have ample
opportunity to observe the defendant. It was relatively – he, the
defendant, was relatively close to her. She was able to provide
a relatively highly detailed description of the shooter. And
while the defense suggests that her vision may have been
partially obstructed, there’s nothing really in the evidence to
support that. I think she did have that opportunity.
See Office of the Attorney General, Attorney General Guidelines for Preparing and
Conducting Photo and Live Lineup Identification Procedures 1 (April 18, 2001); Nat’l
Inst. of Justice, U.S. Department of Justice, Eyewitness Evidence: A Guide for Law
Enforcement 29 (1999). Similar guidance would be helpful to law enforcement agencies
in Delaware, if it is not already available. See Roy S. Malpass et al., Lineup Construction
and Lineup Fairness, in 2 The Handbook of Eyewitness Psychology: Memory for People,
155, 156 (R.C.L. Lindsay et al. eds., 2007).
The witness testified that she had a relatively high degree
of attention. She provided a vivid description of the shooting
and the defendant. Of course, her focus shifted to her children.
That’s natural. But I think that she had a high degree of
attention paid to the actual incident.
I think Shameka Brown’s accuracy of her first
description of the defendant to both Corporal Paolo and
Detective Smith as pretty accurate. She did describe the
defendant as shorter than his actual height, but I think, on
balance, she relatively accurately made a prior description.
I think also that Shameka Brown was relatively certain in
her identification to Detective Polk. It was a very short time
less than three seconds or so, that it took her to identify the
defendant. When she asked if the person she picked out of the
lineup looked like the person who shot the victim, she said,
quote, “yes”, definitely, unquote. That’s a relatively high
Going to the time between the crime and the
confrontation was short. It was just a matter of hours. So, I
think, looked at under a totality of the circumstances, even
finding, which I don’t find, that the initial police actions were
impermissibly suggestive, I don’t find that it was to the extent
that would cause a – give rise to a very substantial likelihood of
irreparable misidentification. That’s a very high standard.
Thus, after undertaking part two of the Younger analysis, the trial judge
determined that, under the totality of the circumstances, Brown’s pretrial
identification of Monroe was reliable and, therefore, satisfied due process.
The trial judge’s factual findings and legal conclusion are supported by the
We hold that the trial judge properly applied both aspects of the twopart Younger analysis in admitting into evidence Brown’s pretrial
identification of Monroe on independent alternative grounds under
Meier’s Pretrial Identification Admissible
Monroe argues that police also employed impermissibly suggestive
procedures before Meier’s out-of-court identification.
interviewed by Detective Smith two days after Ferrell’s death and shown a
six-person photographic lineup.
Monroe argues that Detective Smith’s
preliminary statements and questions were designed to influence Meier’s
identification towards Monroe.
The record reflects that Detective Smith asked Meier whether she
thought she could make an identification and that Meier indicated she was
unsure. Detective Smith told Meier that she wanted Meier to look at the
photographs and see if she recognized anybody but if she didn’t, that was
fine. Meier then reviewed the lineup and selected Monroe, stating “[i]f I had
to just flash, I would have to say him.” Meier also stated that Monroe’s
photograph looked most like the person she saw at the crime scene two days
Younger v. State, 496 A.2d at 550; Neil v. Biggers, 409 U.S. 188 (1972); Manson v.
Brathwaite, 432 U.S. 98 (1977).
The Superior Court found Detective Smith’s conduct of the
photographic lineup and her statements were appropriate under the
circumstances. Again applying the two-part Younger analysis, the Superior
Court ruled that Meier’s identification was not the product of pre-lineup
procedures that were so “impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.”43
Second, and alternatively, the trial judge assumed arguendo
impermissible suggestiveness and applied the five Neil v. Biggers’ factors to
Meier’s identification. The trial judge noted that Meier had two separate
opportunities to view Monroe.
She first saw him walking through the
parking lot after the homicide and then again, running towards the Lexington
Green Apartments. The trial judge noted that rather than identifying Monroe
unequivocally, Meier actually said Monroe’s photograph looked the “most
like” the person she saw.
The Superior Court concluded that, under the totality of the
circumstances, Meier’s out-of-court identification was reliable. We hold
that the trial judge’s factual findings and legal conclusion are supported by
Meier’s out-of-court identification of Monroe was properly
admitted into evidence. Meier’s statements at the time of her identification
Younger v. State, 496 A.2d at 550.
were known to Monroe’s attorney and were proper subjects for crossexamination and closing argument.
The judgments of the Superior Court are affirmed.