      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,                  )
                                   )
     Defendants.                   )



                          September 2, 2015

                   SUPPLEMENTAL OPINION


John Downs, Esquire, Ipek Medford, Esquire, and Periann Doko, Esquire, Deputy
Attorney Generals, Delaware Department of Justice, Wilmington, Delaware.
Attorneys for the State of Delaware.

Anthony A. Figliola, Esquire, 1813 Marsh Road, Suite 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 Defenders, Public Defender’s Office,
Wilmington, Delaware. Attorneys for Defendant Jeffrey Phillips.




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

admissibility of documents reflecting convictions and guilty pleas of persons

whom the State asserts are gang participants in this case.                    Defense counsels,

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

that the admission of these documents violates the Defendants’1 Sixth Amendment

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

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

opinion on this issue. For the reasons set forth below, the State’s request 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 that 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

      showing that other members of the Sure Shots gang engaged in criminal

      activity, individually. For that reason, the Court found the documents relevant

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

      the admission of the documents based on authenticity, as the documents at issue

      are certified copies of public records, which are self-authenticating and


1
    Defendant Otis Phillips and Defendant Jeffrey Phillips (collectively the “Defendants”).
                                                  2
    admissible under D.R.E. 902(4). 2 Furthermore, these documents are admissible

    as exceptions to hearsay under D.R.E. 803(8) because they are public records.3

2. The 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 violates 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 court “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 testimony 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
  Crawford, 541 U.S. at 59.
                                                 3
       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 guilty pleas are testimonial or

    nontestimonial.

3. As stated 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

    purpose 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 guilty plea as

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

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


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. 2011).
11
   Bisaccia v. Attorney Gen. of State of N. J., 623 F.2d 307, 312 (3d Cir. 1980).


                                               4
     convictions become testimonial – triggering a confrontation issue – if offered as

     “proof of facts 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 Court held that the

     defendant’s confrontation 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 found 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 confrontation

     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

     records of conviction of other Sure Shot gang members are admissible. Here,

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

     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
   See 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; see Com. v. Weeks, 927 N.E.2d 1023, 1029 (Mass. App. Ct. 2010).
                                               5
     as part of a common act, transaction or scheme with the Defendants. While

     every 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 prosecution against someone else,” the prior convictions in this case

     are not offered to prove the Defendants’ 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 statutory 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 members 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 …. [Kirby] 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).
                                                 6
     The statute 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 that distinguishes Kirby from this

     case is § 616(a)(2), which defines the requirement that the State prove a

     “pattern of criminal gang 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 these 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 the plain language of the

     statute expressly permits the State to 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 the 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 the
                                                7
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 The records presented by the State are

   admissible under Crawford because they are nontestimonial in nature.

   Moreover, no confrontation issue is triggered because the records are offered

   for the limited purpose of proving a pattern 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 members in this case, for

   the limited purpose of showing 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 expert. The court held that the testimony of the state's gang expert 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 proving
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.
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