IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE, ) )

v. ) ID No. 1210013321 ) 1210013272 OTIS PHILLIPS ) ) and ) ) JEFFREY PHILLIPS, ) ) Defendant s

. )

S eptember 2 , 2015



### SUPPLEMENTAL OPINION

John Downs , Esquire, Ipek Medford, Esquire, and Periann Doko , Esquire, Deputy Attorney General s , Delaware Department o f Justice, Wilmington, Delaware. Attorney s for the State of Delaware

. Anthony A. Figliola, Esqu ire, 1813 Marsh Road, S ui te A, Wilmington, Delaware 19801. Michael C. Heyden, Esquire, 1201 King Street, Wilmington, Delaware 19801. Attorneys for Defendant Otis Phillips.

Kevin J. O’Connell , Esquire, Raymond D. Armstrong, Esquire, and Misty A. Seemans

, Esquire, Assistant Public Defender s , Public Defender’s Office, Wilmington, Delaware

. Attorney s for Defendant Jeffrey Phillips

.

SCOTT, J

.2 During the State’s case in chief , this Court was asked to determine the

admissibility of doc uments reflecting con victions and guilty pleas of persons

whom the State asserts are g ang participants in this case. D efense counsels

, however, objected to the admission of the se documents as evidence on the basis

that the admission of these documents violate s the Defendants’ 1 Sixth Amendment

right to confrontation. T he Court ruled at trial that the requested certified prior

convictions and guilty pleas were admissible . Below is the Cou rt’s supplemental

opinion on this issue

. For the re asons set forth bel ow, the State’s req uest to admit

certifications of prior convictions and guilty pleas of other Sure Shot gang

members in this case was GRANTED

.

1. One of the indicted charges against the Defendants at trial was gang

participation under 11 Del. C. § 616 , as the State alleged th at both the

Defendants were members of the Sure Shots gang

. The prior convictions and

guilty pleas at issue here were offered by the State for the sole purpose of

show ing that other members of the Sure Shots gang engaged in criminal

activity

, individually

. For that reason, the Court found the documents rel evant

to matters in this case under D.R.E 403 . Moreover, t here was no challenge to

the admission of the do cumen ts based on authenticity, as t he documents at issue

are certified copies of public records, which are self

- authenticating and

1 Defendant Otis Phillip s and Defendant Jeffrey Phillips (collectively the “Defendants”).3 admissible under D.R.E. 902 (4)

. 2 Further more , these documents are admissible

as exceptio n s to hearsay under D.R.E. 803(8 ) because they are public records

. 3

2. T he sole basis of the Defendants’ objection to the admission of the certified

prior convictions and guilty pleas of other Sure Shots gang members is that the

admission of these documents violate s the Defendants’ Sixth Amendment right

to confrontation. The Confrontation Clause of the Sixth Amendment bars

“admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross

- examination.” 4 In Crawford, the c ourt “offered no precise

definition of which statements were to be regarded as testimonial and which

were not.” 5 Instead, the Court set out, “for illustrative purposes, a trio of

formulations that [comes] within the ‘core class' of testimonial statements.” 6

The first formulation encompasses “ex parte in

- court testimo ny or its functional equivalent

- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross

examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially. ” The second encompasses “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” The third encompasses “statements that were made under circumstances which would lead an objective witness

2 See U.S. v. Lechuga , 975 F.2d 397, 399 (7th Cir. 1992).
3 See Id.
4 Crawford v. Washington, 541 U.S. 36, 53

– 54 (2004).
5 United States v. Brito, 427 F.3d 53, 59 (3rd Cir. 2005).
6 Crawfo rd, 541 U.S. at 59.4 reasonably to believe that the statement would be available for use at a later trial.” 7

Thus, to determine the admissibility of the documents in this case , the question

is whether the certified prior convictions and guil ty pleas are t estimonial or

non testimonial.

3. As st ated above, certified records of prior convictions and guilty pleas are

public records. “[I]t is undisputed that public records, such as judgments, are

not themselves testimonial in nature and that these records do not fall within the

prohibition established by the Supreme Court in Crawford

. ” 8 In other words,

prior convictions are “generally admissible absent confrontation ... because

–
having been created for the administration of an entity’s affairs and not for the

pur pose of establishing or proving some fact at trial

– they are not testimonial.” 9

Specifically, certified convictions are nontestimonial if offered to prove the fact

of conviction. 10

4. On the other hand

, it is well settled that “use of a co

- conspirator’s gu ilty plea as

substantive proof of a defendant’s complicity in a conspiracy without a

cautionary instruction is not admissible as evidence.” 11 Therefore, c ertified

7 Id. at 50

- 52.
8 United States v. Weiland , 420 F.3d 1062, 1077 (9th Cir. 2005) (citing Crawford, 541 U.S. at 56).
9 Melendez

- Diaz v. Massachusetts , 557 U.S. 305, 324 (2009).
10 United States v. Causevic , 636 F.3d 998, 1004 (8th Cir. 201 1)

. 11 Bisaccia v. Attorney Gen. of State of N. J. , 623 F.2d 307, 312 (3d Cir. 1980).5 convictions become testimonial

– triggering a confrontation issue

– if offered as

“proof of f acts underlying the crime charged.” 12 This is because a defendant

has “a right to have his guilt or innocence determined by the evidence presented

against him, not by what has happened with regard to a criminal prosecution

against someone else.” 13 In Kirby v. United States , the C ourt held that the

defendant’s c onfrontation rights had been violated because the defendant’s

conviction for receiving stolen property was, in part, based on the admission of

the records of conviction of three individuals who were f ound guilty of stealing

the relevant property. 14 In Kirby , the records of conviction were introduced not

to demonstrate the fact of conviction, but the underlying evidentiary fact, that

the goods were stolen. 15 It was a violation of the defendant’s confron tation

rights because he was not allowed to cross

- examine any witnesses with respect

to that evidentiary element. 16

5. However, this Court finds Kirby distinguishable from this case, such that the

reco rds of conviction of other Sure Shot gang members are admis sible

. Here,

the Defendants’ Sixth Amendment rights have not been violated because t he

convictions are not offered by the State to show that other gang members acted

12 Causevic , 636 F.3d at 1004

. 13 United States v. Toner , 173 F.2d 140, 142 (3d Cir. 1949).
14 174 U.S. 47 , 53 (1899).
15 S ee also United States v. Head , 707 F.3d 1026, 1031 (8th Cir. 2013) (The minute entry of the principal’s guilty plea was offered to prove that he committed the underlying crime, not simply that he was convicted of that crime.).
16 Kirby , 174 U.S. at 55

- 56 ; s ee Com. v. Weeks , 927 N.E.2d 1023, 1029 (Mass. App. Ct. 2010).6 as p art of a common act, transaction or scheme with the D efendant s

. While

e very criminal defendant has a right “to have his guilt or innocence determined

by the evidence presented against him, not by what has happened with regard to

a criminal pr osecution against someone else, ” the prior convictions in this case

are not offered to prove the D efendants’ participation in a conspiracy or the

Defendants’ guilt for the offenses which are the bases of the prior convictions

and guilty pleas. 17

6. More importantly though, this Court finds that Kirby is also distinguishable

from this case based on the st atutory language of the indicted offense. 18 Here,

the Defendants are charged with gang participation under 11 Del. C. § 616,

which provides that

[a] person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and who knowingly promotes, furthers or assists in any criminal conduct by member s of that gang which would constitute a felony under Delaware law, shall be guilty of illegal gang participation. 19

17 Toner, 173 F.2d at 142.
18 See F.R.E. 803(22) Cmt. (22) (“While these rules do not in general purport to resolve constitutional issues, they have in general been drafted with a view to avoiding collision with constitutional principles .... [ Kirb y ] is to be distinguished from cases in which conviction of another person is an element of the crime, e.g. 15 U.S.C. § 902(d), interstate shipment of firearms to a known convicted felon, and, as specifically provided, from impeachment.”).
19 11 Del. C. § 616(b).7 The st atute further defines the requirements for the State to prove the elements

of “criminal street gang” and “pattern of criminal gang activity

. ” 20

7. The section of the gang participation statute th at distinguishes Kirby from this

case is § 616(a)(2), wh ich def ines the requirement that the State prove a

“pattern of criminal g ang activity ” as

the commission of attempted commission of, conspiracy to commit, solicitation of, or conviction of 2 or more of the following criminal offenses, provided at least 1 of thes e offenses occurred after July 1, 2003, 21 and that the last of those offenses occurred within 3 years after a prior offense, and provided that the offenses were committed on separate occasions, or by 2 or more persons... 22

Thus, Kirby is distinguishable from this case because t he plain language of the

statute expressly permits the State t o offer as evidence against the Defendants,

the individual acts of other Sure Shots gang members, including their records of

conviction, as one way of proving the elements of this offense. 23

20 See 11 Del. C. § 616(a) (defining in (a)(1) “Criminal street gang” means any ongoing organization, association, or group of 3 or more persons, whether formal or informal, having as 1 of its primary activities the commission of one or more of th e criminal acts enumerated in paragraph ( a)(2) of this section, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.) (emphasis added).
21 Defendant Otis Phillips argued that an offense occurred prior to 2003. However, the statute does not bar offenses prior to July 1, 2003. It only requires one offense to have occurred after that date.
22 11 Del. C. § 616(a)(2) (emphasis added) ; see People v. Viera , 2012 WL 2899343, at *5 (Cal. Ct. App. July 17, 2012) ( Adequate proof in support of the primary activities element “might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute.”) (emphasis added).
23 See 11 Del. C. § 616(a); see also People v. Ramirez , 153 Cal. App. 4th 1422 ( Cal. Ct. App. 2007) (The prior conviction records of two other gang members and the expert testimony proffering that those criminal acts contained in the prior convictions were committed for the8 8. In this case, the records of conviction of five other Sure Shots gang members

are one piece of the evidence the State offered to establish a pattern of criminal

gang activity, as define by § 616(a)(2). 24 T he reco rds presented by the State are

admissible under Crawford because they are non testimonial in nature.

Moreover, no confrontation issue is trigger ed because the records are offered

for the limited purpose of proving a patte rn of criminal gang activity by

individual members of the gang , which the plain language of the gang

participation statute provides as a permissible way of establishing that element.

9. For the reasons set forth above

, the State’s request to admit the certified

convictions and guilty pleas of other Sure Shot gang member s in this case , for

the limited purpose of show ing that other members of the Sure Shots gang

engaged in criminal activity individually

, was GRANTED

.

IT IS SO ORDERED.



### /s/Calvin L. Scott Judge Calvin L. Scott, Jr.

benefit of the gang were admitted against the defendant at his trial. There was no Confrontation Clause issue regarding admission of the prior conviction records; only the testimony of the state’s gang exper t. The c ourt held that the testimony of the state's gang e xpert that two members of the defendant's gang had prior convictions for murder and attempted murder, and that their crimes were committed for the benefit of the gang, offered for purposes of provi ng gang enhancement, did not violate Confrontation Clause.)

. 24 The Court notes that three of these five gang members had testified on behalf of the State at trial, before the State sought to admit the records of conviction at issue here

.