               IN THE SUPREME COURT OF THE STATE OF DELAWARE

ALEX J. DURHAM,                                 §
                                                §
         Defendant-Below,                       §   No. 231, 2019
         Appellant,                             §
                                                §   Court Below:
         v.                                     §   Superior Court
                                                §   of the State of Delaware
STATE OF DELAWARE,                              §
                                                §   I.D. No. 1805019020A &
         Plaintiff-Below,                       §            1805019020B
         Appellee.                              §

                                 Submitted: November 13, 2019
                                  Decided: December 3, 2019

Before VALIHURA, VAUGHN and TRAYNOR, Justices.

                                               ORDER

         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


1
    Getz v. State, 538 A.2d 726 (Del. 1988).
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.




2
    App. to Opening Br. at A-20.


                                             2
         (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




3
 Under D.R.E. 404(b)(1), “[e]vidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in accordance
with the character.” It may, however, be admissible for other purposes, “such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” D.R.E. 404(b)(2). This rule “implements the philosophy that a defendant should not
be convicted because he is an unsavory person, nor because of past misdeeds, but only because of
his guilt of the particular crime charged,” and hence “limits use of prior crimes, calling for
exclusion where the evidence tends only to show propensity.” 1 CHRISTOPHER B. MUELLER &
LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 4:21, Westlaw (last updated June 2019).
4
    App. to Opening Br. at A-13.


                                               3
Counsel for Durham said he “may not have an objection” if “that’s the only purpose of

[Bird’s and Drummond’s description] coming in and it’s not coming in under 404.”5

          (7)      Once the trial commenced, the State called Detective Mullaney as its first

witness. He testified that on May 28, 2018, he arrived at 317 West Division, where he

made contact with two individuals “that were very upset, distraught, very visibly upset

about an incident that occurred.”6 He then gave the description provided by Bird and

Drummond.          As proffered, Detective Mullaney did not mention the possible home

invasion.

          (8)      However, later in the trial, Patrolman Spicer testified that that he was in the

area on the night of the arrest because:

          We got a call for a possible home invasion in the area of 317 West Division
          street. Officer Tim Mullaney was working that night and he responded there,
          put out over the radio that a suspect, a black male wearing a gray sweatshirt
          and black pants - - dark-colored pants, fled the area of 317 West Division
          and had a firearm in his possession and was traveling eastbound.7

          (9)      Counsel for Durham did not raise a contemporaneous objection to the

testimony of either Detective Mullaney or Patrolman Spicer.

          (10)     After the State rested its case, counsel for Durham moved for judgment of

acquittal, arguing that Patrolman Spicer’s testimony was not credible. The State responded

that in addition to Officer Spicer’s testimony, there was Detective Mullaney’s testimony




5
    Id. at A-15.
6
    Id. at A-20.
7
    Id. at A-28–A-29.


                                                  4
“that two individuals described a black male with a firearm at their residence.”8 Counsel

for Durham then argued that the State was using the statement as an uncharged prior bad

act for purposes of establishing identity under D.R.E. 404(b) which “is very prejudicial to

Mr. Durham because it insinuates to the fact-finder that he was involved” with the home

invasion.9 The court denied the motion.

          (11)     After a two-day bench trial on February 11–12, 2019, Durham was convicted

on February 18, 2019 of all charges except for the Receiving a Stolen Firearm charge. As

to that charge, the State entered a nolle prosequi at the conclusion of the case. Durham

was sentenced on May 16, 2019. Durham received a cumulative sentence of nine years of

incarceration followed by decreasing levels of community supervision.

          (12)     Durham appeals his conviction and sentencing, contending that the Superior

Court abused its discretion by considering prior bad act evidence, which he contends was

improperly used for purposes of establishing identity under D.R.E. 404(b), without

conducting a Getz analysis. The State argues that a D.R.E. 404(b) analysis was not required

and that Bird’s and Drummond’s statements to Officer Mullaney qualified as excited

utterances under D.R.E. 803(2). “We review the Superior Court’s rulings on the admission

of evidence for an abuse of discretion.”10 “An abuse of discretion occurs when a court has




8
    Id. at A-55.
9
    Id. at A-58.
10
  Baumann v. State, 891 A.2d 146, 148 (Del. 2005) (citing Lilly v. State, 649 A.2d 1055, 1059
(Del. 1994)).


                                                5
exceeded the bounds of reason in view of the circumstances, or so ignored recognized rules

of law or practice so as to produce injustice.”11

           (13)   Although the Superior Court noted in its bench ruling on the motion for

judgment of acquittal that it “does not recall any discussion of what acts had been

committed at the address of 317 West Division Street that caused the people . . . to be

perturbed and upset,”12 the trial transcript indicates that Patrolman Spicer did testify that

the officers were responding to a possible home invasion at that address and that the

description was that of the home invasion suspect.

           (14)   Based upon our review of the record before us, we affirm the conviction and

sentencing and hold that even if the introduction of the possible home invasion constituted

error, it was harmless error. The Superior Court observed that:

           [T]he Court does not believe that information to be essential in this case
           because this is not a situation which - - might have been different if those
           two individuals, their statement about someone having a gun had been the
           only evidence of the defendant possessing a firearm. In this case, we also
           have Patrolman Spicer’s testimony to that effect.13

The court found Patrolman Spicer’s testimony to be “particularly credible,” and that his

testimony was corroborated by video evidence.14 Our review of the record shows that

Patrolman Spicer testified that during his pursuit of Durham, Spicer “saw [Durham’s] hand

go near his waistband area of his sweatpants and come out with a black firearm, black



11
     Id.
12
     App. to Opening Br. at A-58.
13
     Id. at A-59–A-60.
14
     Opening Br. at Ex. A (Trial Tr. at 4).


                                                6
handgun.”15 Spicer testified that he “saw the black slide of the handgun and I saw his palm

wrapped around the butt of the gun,”16 and that Durham “was turned around looking at me

and had the gun in his right hand.”17 Spicer further testified that he told Durham to stop

and “drop the gun.”18 At that point in the chase, Spicer stated that the lighting was “good”

given the “streetlights up and down West Division.”19 Moreover, Patrolman Spicer’s

description of the firearm matched the gun entered into evidence, and he identified it as the

gun he that saw Durham carrying.20 There was ample evidence to support a conviction

beyond a reasonable doubt.

           (15)     Moreover, we question the applicability of D.R.E. 404(b) to the challenged

testimony. Bird and Drummond’s description of the man with the gun at the site of the

possible home invasion was not referring to a prior bad act that exhibited Durham’s

propensity to illegally possess a firearm. Rather, it explained what prompted the police to

chase Durham. In other words, Bird and Drummond’s hearsay statement described a part

of the sequence of the very act of firearm possession for which he was prosecuted.




15
     App. to Opening Br. at A-31.
16
     Id.
17
     Id. at A-31–A-32.
18
     Id. at A-32.
19
     Id.
20
     Id. at A-55.


                                                 7
      NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the

Superior Court is hereby AFFIRMED.

                                         BY THE COURT:

                                         /s/ Karen L. Valihura
                                         Justice




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