IN THE SUPREN[E COURT OF THE STATE ()F DELAWARE

JEFFREY PHILLIPS, §
§ No. 51 1, 2015
Defendant Below, §
Appellant, § Court BeloW-Superior Court
§ of the State of Delaware
V- §
§ Cr. ID No. 1210013272
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: November 2, 2016
Decided: January 17, 2017

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and
SEITZ, Justices, constituting the Court en Banc.

Upon appeal nom the Superior Court. AFFIRMED.
Kevin J. O’Connell, Esquire (Arguea’), Bernard J. O’Donnell, Esquire, Misty A.
Seemans, Esquire, Offlce of Public Defender, Wilmington, Delaware, Attorneys for

Defendant Below, Appellant.

Sean P. Lugg, Esquire (Arguea'), Andrew J. Vella, Esquire, Department of Justice,
Wilmington, Delaware.

HOLLAND, Justice; for the Majority:

This is a direct appeal from a final judgment of convictions in the Superior
Court. A grand jury issued a 54 count indictment charging the defendant below
Appellant, Jeffrey Phillips (“Jeffrey”), Otis Phillips (“Otis”), and fourteen other co-
defendants With gang participation charges relating to criminal activities of the Sure
Shots street gang (the “Sure Shots”). Jeffrey Was charged with two counts of Murder
in the First Degree, Attempted Murder in the First Degree, Gang Participation,
Conspiracy in the First Degree, Reckless Endangering in the First Degree, Four
Counts of Possession of a Firearm During the Commission of a Felony, Riot,
Conspiracy in the Second Degree, Disorderly Conduct, Two Counts of Assault in
the Third Degree, and Criminal Mischief. The State sought the death penalty for
Jeffrey.

The Superior Court denied severance motions and, instead, conducted a joint
capital trial of Jeffrey and Otis that began on October 20, 2014 and lasted 21 days.
On November 21, 2014, the jury convicted Jeffrey of Murder in the First Degree,
Manslaughter (as a lesser-included offense), Gang Participation, Conspiracy in the
First Degree, F our Counts of Possession of a Firearm During the Commission of a
Felony, Assault in the Second Degree, Reckless Endangering in the First Degree,
and Disorderly Conduct (as a lesser-included offense). The jury acquitted Jeffrey of

Assault in the Third Degree and Conspiracy in the Second Degree.

The penalty hearing began on December 18, 2014, and the jury found “‘two
in the affirmative, 10 in the negative’ on the question of whether the aggravating
circumstances outweighed the mitigating circumstances.” The State withdrew its
intent to seek the death penalty on September 4, 2015, and the Superior Court
sentenced him to life imprisonment and an additional 72 years in prison, followed
by decreasing levels of supervision, for the remaining convictions

Jeffrey raises five issues on appeal. First, Jeffrey challenges the Superior
Court’s refusal to grant a mistrial on the basis of prosecutorial misconduct and
prejudicial testimony. Second, Jeffrey claims that the Superior Court denied him the
right to effectively prepare for trial by granting the State’s protective orders. Third,
Jeffrey contends that the Superior Court erred in refusing to grant severance from a
joint trial with Otis and from joining the Gang Participation and Riot charges with
the homicide charges. Fourth, Jeffrey argues there was insufficient evidence for a
reasonable jury to convict him of Gang Participation. Finally, Jeffrey claims that
the Superior Court’s deficient jury instructions require reversal.

We have determined that all of Jeffrey’s arguments are without merit.
Therefore, the judgment of the Superior Court must be affirmed.

Facts
On January 27, 2008, Christopher Palmer was shot and killed inside an after-

hours nightclub in Wilmington, Delaware. Herman Curry witnessed the murder.

More than four years later, on July 8, 2012, Curry and Alexander Kamara were shot
and killed during a soccer tournament at Eden Park in Wilmington, Delaware.
Wilmington Police Department (“WPD”) officers investigated the 2008 and 2012
murders. The investigations revealed that the suspects in the homicides, Otis and
Jeffrey, were members of a gang known as the “Sure Shots.”

Christopher Palmer Murder. There was a birthday party for Curry on
January 27, 2008 at a nightclub on Locust Street in Wilmington. Palmer, the security
guard responsible for checking guests for weapons prior to entry, denied three
individuals-believed to be Otis, Jovani Luna, and Dwayne Kelly_entry into the
club because “one or more of them was armed.” A bystander, Clayon Green,
witnessed the trio of men return and saw one of them push Palmer after he was again
denied entry. According to Green, “Palmer and his assailant fell into a nearby
bathroom, Otis ‘reached around’ into the bathroom and Green heard three shots.”
Palmer died as a result of the gunshot wounds. Curry also witnessed the incident
and identified Otis as Palmer’s shooter in a photo lineup. Afterwards, Kelly told
Paula Thompson_his girlfriend at the time_that he and Otis were going to New
York and Kelly did not see Otis after that visit.

Nightclub Incident. Four years later, on July 7, 2012, Jeffrey was involved
in another shooting at a nightclub. According to the State, Kelmar Allen’s testimony

established that Allen removed Jeffrey from the club after Jeffrey got into an

altercation with a rival gang member. As Allen and Kirt Williams waited for an
elevator, Christopher Spence shot at them, “killing Williams and wounding Allen.”
After running outside, Allen “saw Jeffrey firing a .40 caliber gun at a person named
‘Mighty,”’ a rival gang member. The next day, Allen saw Jeffrey at a house on
Lamotte Street, where he and other Sure Shots members were “collecting guns and
bullets in the basement of the home.” According to Allen, the members were angry
because they wanted to find the rival gang members from the night before. The Sure
Shots leader, Seon Phillips (“Seon”, Otis’s brother, no relation to Jeffrey), loaded a
.40 caliber gun and gave it to Jeffrey.

Eden Park Murder. On July 8, 2012, Curry organized an annual soccer
tournament at Eden Park in Wilmington, Delaware. While Ricardo Brown was
preparing food at the outdoor kitchen with Curry, he noticed two men walk through
a gate onto the soccer field. Shortly after that, he heard “f`ire rockets go off” and
“tumed and saw one of the men shoot Curry while the other shot his gun ‘wild[ly].”’
Curry and Kamara died as a result of their gunshot wounds (the “Eden Park
Homicides”).

There were other witnesses to the homicides. Nearby soccer player, Raoul
Lacaille saw two men approach Curry, tap him on the shoulder, and shoot him,
identifying Otis as Curry’s shooter. Omar Bromfield also heard what he described

as firecrackers, saw a crowd running through the parking lot, and discovered shortly

after that he had been shot. Venus Cherry, a tournament participant, saw two men
enter the field, approach Curry, tap him on the shoulder, and one said, “Ninja, run,
pussy, today you are dead,” prior to shooting him. According to Cherry, “[t]he
second man turned toward the ‘kitchen’ area and fired his gun; a bullet hit Kamara
and Cherry.” Cherry identified Otis as Curry’s shooter and Jeffrey as Kamara’s
shooter.

Green witnessed Otis and Jeffrey walk across the field and then “saw Otis
shoot at Curry, and Jeffrey shoot toward the parking lot as if to clear the way.” Green
then saw Otis and Jeffrey return to a gold car, and saw Christopher Spence approach
the car and shoot the driver, Serge. Minutes after the shooting, officers found the
gold car crashed at a nearby intersection. Off`icer Corey Staats found a handgun on
the rear sea , “and observed the semi-conscious driver bleeding from his torso.”
Upon searching the vehicle, police discovered a 9 mm handgun, .40 caliber handgun,
and black baseball cap containing DNA that matched that of Otis. According to
firearm examiner Carol Rone, the shell casings collected from the Eden Park crime
scene were fired from the recovered firearms.

Officers searched the surrounding area for the two men who had fled from the
crashed gold car and located Otis and Jeffrey in a back yard approximately four

blocks north of Eden Park. A brief standoff followed, and then the officers arrested

Otis and Jeffrey. The police noticed Jeffrey was wounded from a gunshot in the leg
and discovered 20 rounds of 9 mm ammunition in his pants pocket.

The State’s primary witness against Jeffrey was Allen. During his direct
testimony, Allen asserted that Jeffrey was a member of the Sure Shots, had received
a loaded .40 caliber semi-automatic handgun from the leader of the Sure Shots, Seon,
just prior to going to Eden Park on July 8, 2012, and was a willing participant in the
shootout that took place in Eden Park on July 8, 2012. Prior to trial, Allen had
pleaded guilty to Gang Participation. The sentence imposed by the trial judge was
a period of incarceration suspended for time served (119 days) followed by level III
probation.

Gang Participation. The Sure Shots originated in Delaware in 1995 and was
involved primarily in illegal drug trafficking Sure Shots members had a reputation
of carrying and using their firearms and engaging in various assaults, shootings, and
homicides. The State alleges that Otis and Jeffrey were members of the Sure Shots.
This allegation is predicated upon the WPD’s investigation into the Palmer murder,
the nightclub incident, and the Eden Park Homicides, as well as an altercation at a
Royal Farms (the “Royal Farms Incident”).

On February 26, 2012, Shanice Kellam, her brother, Jeremy Showell, and
three other friends went to a Royal Farms store in Bridgeville, Delaware. As they

entered the store, Kellam heard a man say “[y]ou’re a bad bitch,” to which Showell

responded, “she’s not a bitch, she’s a lady.” A group of men approached them and
one punched Kellam in the face. The men then attacked Kellam and Showell. A
second carload of men arrived at the Royal Farms and joined the first group in their
attack of Kellam and Showell. The altercation was captured on video and Detective
Curley identified Jeffrey and other members of the Sure Shots gang as Kellam’s and
Showell’s assailants. The WPD homicide investigations and the Royal Farms
Incident constituted the predicate offenses for the Gang Participation charge against
Jeffrey.
Mistrial Properly Denied

On the second day of trial, October 21, 2014, the State informed defense
counsel that Maria DuBois had entered into a witness protection agreement with the
State. Defense counsel immediately requested that the trial judge require the State
to identify any other witnesses that had entered into witness protection agreements
with the State, as well as an accounting of the financial benefits that they had
received pursuant to those agreements Over the next several days, the State
provided defense counsel with the witness protection agreements of four co-
defendants and an accounting of the financial benefits paid to or on behalf of those
State witnesses. Three of these witnesses testified.

The witness protection agreements were written documents that provided

financial benefits in exchange for the witnesses’ cooperation in the prosecution of

various Sure Shots defendants, including Jeffrey. The agreements required the
witnesses “to testify truthfully if called as a witness” at trial. The agreements gave
the Chief Deputy Attomey General of the Department of Justice “the sole authority
to finally determine whether a material breach of this agreement by . . . the witness
[had] occurred and the appropriate remedies and sanctions.”

The trial judge recognized that the witness protection agreement evidence had
the potential to cause confusion. These agreements implied that the witness was in
danger from any or all of the co-defendants in the case to such an extent that the
State was willing to expend thousands of dollars to protect the witness. Conversely,
the fact that the witnesses were receiving financial benefits as a result of their
decision to testify against defendants had the potential to demonstrate bias.

Prior to the testimony of Maria DuBois, the trial judge ruled that the State
could not ask any witness about a witness protection agreement during direct
examination but the defense could cross-examine the witness about the financial
benefits received as a result of being in witness protection. The trial judge advised
the State to discuss this issue with their witnesses in advance of testifying, and that
if the State raised the issue in its case-in-chief they did so at their “own peril.”
Defense counsel for Jeffrey did not raise the issue of witness protection during the
cross-examination of Maria DuBois or Michael Young, because neither of those

witnesses testified in a manner that inculpated Jeffrey.

Allen was called as a State witness on October 24, 2014. After a few
foundational questions, the State placed Allen’s plea agreement in front of him and
asked him the following question:

Q: Now, without again looking at the document, what, if any,

benefits did the State promise you in exchange for your plea?
A: Just that, just that, like, witness protection.

All of the attorneys immediately went to sidebar where the State informed the
trial judge: “I’ve instructed this witness multiple times that l was not allowed to ask
about witness protection . . . [s]o l don’t know why he mentioned tha .” Defense
counsel for Jeffrey initially asked for a curative instruction but then requested a
mistrial.

The trial judge denied the motion for mistrial and then permitted defense
counsel to examine Allen outside the presence of the jury. During that examination,
Allen revealed that he was in witness protection as a result of his fear of “everything
that is going on”, but not as a result of threats made by Jeff`rey. With regard to what
the State had told Allen to say about witness protection, the following exchange
occurred upon questioning by counsel for Jeffrey:

Q: Mr. Allen, the prosecutors met with you before you testified,

correct?

A: Yeah.

Q: And they instructed you not to talk about the witness protection,

correct?

A: No, they didn’t tell me not to talk about a witness protection_

they didn’t instruct me to talk about a witness protection.
Q: Not to talk about it?

10

A: No. I said they didn’t instruct me. They just told me to tell the
truth.
Q: There’s never any discussion with you and the prosecutors about

talking-not talking about witness protection?
A: No.

The State then asked Allen questions concerning prior discussions with him
about witness protections

Q: Did the State, did l today explain to you about witness
protection?

A: Yes.

Q: Do you recall, do you recall me telling you that l wasn’t going to
ask you about witness protection?

A: Yes.

Q: Did I explain to you that defense counsel would then ask you
about witness protection?

A: Yes.

Q: Then did l explain to you that I would then be able to stand up
and ask you more?

A: After more, yeah.

Q: So what was your understanding with what I would ask you
about witness protection?

A: Can you repeat that question to me?

Q: Yeah. What did you understand me saying when I said I wasn’t
going to ask you about witness protection and that only they could?

A: I didn’t even really understand that.

Defense counsel for Jeffrey renewed his motion for a mistrial, emphasizing
that the State had not made it clear to its witness that evidence concerning witness
protection was not to be discussed unless specifically asked by the defense. Both
defendants also argued that a curative instruction was insufficient The trial judge

denied the renewed motions for a mistrial.

11

Defense counsel for Jeffrey then informed the trial judge of their intent to
explore the issue of payments made to Allen pursuant to the witness protection
agreement Defense counsel for Otis objected to action by Jeffrey. Both defendants
then moved for a severance and a mistrial. Those motions were denied.

The Superior Court concluded that “Allen merely stated that his participation
in witness protection was a benefit that he received under his plea agreement with
the State,” and that Allen’s improper mention of his participation in witness
protection was not the result of prosecutorial misconduct and “did not sufficiently
prejudice either of the Defendants to warrant a mistrial.” Instead, a previously
prepared limiting instruction was given to the jury as follows:

Ladies and gentlemen, the witness has testified that he currently has

some involvement in the Witness Protection Program. There’s no

evidence before you that the defendants personally made any threats,

directly or indirectly, against the witness. The fact that a witness
received a benefit in the program may only be considered by you for

the purpose of judging the credibility of the witness, it should not be
considered by you in determining the guilt of the defendants

Jeffrey argues that the Superior Court abused its discretion when it denied his
motions for a mistrial. According to Jeffrey, the State failed to disclose exculpatory
Braa’yl material, which led to the introduction of prejudicial evidence_namely, the

testimony from Allen concerning the witness protection agreement In Pena v.

 

l Brady v. Maryland, 373 U.S. 83 (1963).
12

State,2 this Court established a four-factor assessment to determine whether a
mistrial should be granted in response to an allegedly prejudicial remark by a
witness: (1) the nature and frequency of the offending comment; (2) the likelihood
of resulting prejudice; (3) the closeness of the case; and (4) the adequacy of the trial
judge’s actions to mitigate any potential prejudice.3 In Revel v. State,4 the Court
added that a mistrial should only be granted as a last resort when there are no other
altematives_i.e., where there is “‘manifest necessity’ or the ‘ends of public justice
would otherwise be defeated.”’5 Moreover, regarding the fourth factor, a trial
judge’s prompt curative instructions “are presumed to cure error and adequately
direct the jury to disregard improper statements.”6 And “[j]uries are presumed to
follow the trial judge’s instructions.”7

We will apply the four Pena factors in this case. First, Allen only testified on
one occasion that he was in witness protection. Second, Allen gave no testimony
before the jury that he had a particularized fear of Jeffrey or Otis. Third, this was
not a close case. Several witnesses testified to Jeffrey’s involvement in the Curry
and Kamara homicides and his general involvement in the Sure Shots gang. Fourth,

while the jury may have speculated that Allen’s participation in witness protection

 

2 856 A.2d 548 (Del. 2004).

3 Id. ar 550.

4 956 A.2d 23 (Del. 2008).

5 Id. at 27 (quoting Brown v. State, 897 A.2d 748, 752 (Del 2006)).
6 Id. (quoting Pena, 856 A.2d at 551).

7 Id.

13

was directly attributable to Jeffrey or Otis, the trial judge’s curative instruction
addressed such speculation.

Consideration of the four Pena factors establishes that the trial judge acted
within his discretion in denying Jeff`rey’s motion for a mistrial. The trial judge was
in the best position to assess the potential prejudice of Allen’s statement and his
decision to deny Jeffrey’s motion for a mistrial was neither arbitrary nor capricious.
To the extent the terms and conditions of Allen’s participation in a witness protection
program were Brady material, Jeffrey received the information sufficiently in
advance of Allen’s testimony to use it effectively. To the extent that Allen’s
comment to the jury that he received witness protection for his plea prejudiced
Jeff`rey, that prejudice was effectively ameliorated by the trial judge’s limiting
instruction.

Protective Orders Proper

Jeffrey challenges two pre-trial protective orders that restricted his defense
counsel’s ability to share the identity of co-defendants and witnesses with him, along
with others and the content of their statements This Court reviews “a trial judge’s
application of the Superior Court Rules relating to discovery”_such as the

protective orders at issue here-“for an abuse of discretion.”8

 

8 Hopkins v. State, 893 A.2d 922, 927 n.5 (Del. 2006).
14

On April 16, 2014, upon ex parte application by the State, the trial judge
entered a protective order pursuant to Superior Court Criminal Rule l6(d). That
order prohibited counsel for each defendant from sharing with their clients, the
friends, family, and associates of their clients, or with counsel’s employees or agents,
the identification of the cooperating co-defendants who had given statements as well
as the contents of those statements On August 14, 2014, upon application by the
State, the trial judge entered another protective order that prohibited counsel for the
defendants from disclosing the identity of the witnesses whose statements were to
be provided to counsel on August 15, 2014. The protective order also prohibited
defense counsel from sharing with their client, the friends, family, and associates of
their clients, or any employee of defense counsel, the contents of statements made
by these witnesses After the protective orders were entered, the State provided
Jeff`rey’s attorney with over 1,100 pages of transcribed statements from 49
witnesses

Jeffrey acknowledges that, upon his request, he was provided some relief from
the protective orders First, prior to trial, Jeffrey’s counsel was permitted to “share
the protected statements with their staff, but not with investigators.” Second, “[t]he
State agreed to the Superior Court granting complete relief from the protective orders
following jury selection but before the beginning of trial.” Jury selection concluded

on October 9, 2014, and the jury was sworn and trial began on October 20, 2014.

15

Prior to any witness testifying, Jeffrey and his counsel possessed, and had the
opportunity to discuss, every witness statement Accordingly, Jeffrey does not argue
that he was not provided access to statements Instead, his challenge focuses on the
timing full access was granted. But, once full access was provided, he did not seek
additional time for review.

Pursuant to Rule 16, the State is required to disclose statements of the
defendant or a co-defendant, the defendant’s prior criminal record, investigative
documents and tangible objects, reports of examinations and tests, and expert
witness evidence. “Rule 16 does not require the State to disclose the identity of its
witnesses prior to trial or to provide a ‘complete and detailed accounting . . . of all
police investigatory work on a case.”’9 The State has a duty to disclose exculpatory
evidence; “[t]his duty, however, does not extend to the disclosure of material that is
non-exculpatory.”10

Jeffrey’s reliance on Rovz'aro v. United Statesll is misplaced. In Rovz'aro, the
prosecution withheld the identity of an undercover informer who was the “sole

participant other than the accused, in the transaction charged.”12 Under these

circumstances the United States Supreme Court concluded that the trial court erred

 

9 Goode v. State, 136 A.3d 303, 312 (Del. 2016) (quoting Lovett v. State, 516 A.2d 455, 472 (Del.
1986)).

10 Liket v. State, 719 A.2d 935, 397 (Del. 1998).

11 353 U.s. 53 (1957).

12 Id. at 64.

16

by allowing the prosecution to withhold the informer’s identity.13 In reaching this
conclusion, though, the Roviaro Court declined to impose a “fixed rule” for
disclosure.14 Rather, the Court held that “[w]hether a proper balance renders
nondisclosure erroneous must depend on the particular circumstances of each case,
taking into consideration the crime charged, the possible defenses, the possible
significance of the informer’s testimony, and other relevant factors.”15

In Jeff`rey’s case, the witnesses’ statements were disclosed well in advance of
trial, their identities were revealed in advance of trial, and they were called to testify
during trial, revealing their identities and the substance of their testimony, and
subjecting them to cross-examination The record reflects that the trial judge struck
a proper balance between witness safety and Jeff`rey’s ability to prepare his defense.

Joimler of Defendants Proper

Ordinarily, defendants indicted together should be tried together, but, if justice
requires it, the trial judge should grant separate trials16 This Court set forth four
factors that a trial court should consider when determining whether to sever
defendants: “(1) problems involving a co-defendant’s extra-judicial statements; (2)

an absence of substantial independent competent evidence of the movant’s guilt; (3)

 

13 Id. at 65.

14 Id. at 62.

15 Id

16 skinner v. smre, 575 A.2d 1108, 1119 (Del. 1990); super. Cr. Crim. R. s(b).

17

antagonistic defenses as between the co-defendant and the movant; and (4) difficulty
in segregating the State’s evidence as between the co-defendant and the movant.”17
This Court reviews the trial court’s decision on a motion to sever for abuse of
discretion.18 A trial judge’s denial of a motion to sever will not be set aside on appeal
“unless [the] defendant demonstrates a ‘reasonable probability’ that the joint trial
caused ‘substantial injustice.”’19
During trial, after Allen testified to his participation in the witness protection
program, Jeffrey moved to sever his case from Otis’s. Jeffrey argued that severance
was required because he and his co-defendant sought to engage in different cross-
examination strategies to address the witness protection issue. The Superior Court
denied Jeffrey’s motion, finding:
In this case, both the Defendants argue that one defendant’s decision to
cross-examine the State’s witness regarding their participation in
witness protection would prejudice the other defendant whose trial
strategy was to not address witness protection. However, neither of the
Defendants’ positions present separate defenses as to a State’s
witness’s participation in witness protection, or otherwise, that the jury
could only reasonably accept the core of if it rejects the core of the
defense offered by his co-defendant. Moreover, neither of the

Defendants testified or presented evidence that directly implicated the
other in their own defense.

 

17 Floua'iotis v. State, 726 A.2d 1196, 1210 (Del. 1999).

18 Winer v. State, 950 A.2d 642, 648 (Del. 2008).

19 Id. (alteration in original) (quoting Walker v. State, 790 A.2d 477, 2002 WL 122643, at *l (Del.
Jan. 24, 2002) (TABLE)).

18

Jeffrey argues that the differences between his and Otis’s cross-examination
strategies for Allen created antagonistic defenses that compelled severance.

“[T]he presence of hostility between a defendant and his codefendant or ‘mere
inconsistencies in defenses or trial strategies’ do not require a severance.”Z° Jeffrey
wanted to explore Allen’s witness protection agreement on cross-examination Otis
did not want to address Allen’s participation in the witness protection program.
Their differing positions on cross-examination did not create a situation in which
they were presenting separate defenses that required “the jury [to] reasonably accept
the core of the defense offered by either defendant only if it rej ect[ed] the core of the
defense offered by his codefendant.”21

However, Jeffrey does not base his argument solely on inconsistent strategies
He also points to general prejudice caused by his association with Otis and Otis’s
attorney’s accusatory statements in closing arguments According to Jeffrey, there
was a potential for prejudice and even confusion considering Otis faced charges for
crimes that occurred before Jeffrey even came to the United States from Jamaica,
including a charge for the murder of Palmer. Jeffrey argues that “the jury could have
had difficulty in segregating the evidence against each defendant,” because no

evidence was presented suggesting Jeffrey’s involvement in the Palmer murder. In

 

20 Outten v. State, 650 A.2d 1291, 1298 (Del. 1994).
21 Bradley v. State, 559 A.2d 1234, 1241 (Del. 1989).

19

other words, there was a danger that the jury would not be able to segregate the
evidence of Otis’s separately charged crimes from the Eden Park Homicides. Jeffrey
also points out that, in closing remarks, Otis’s defense counsel implicated Jeffrey
several times, noting that the evidence showed that Jeffrey was present at the
gunfight at the nightclub when Otis was not, that he was present at Lamotte Street
when Otis was not, and that he was present at Eden Park when Otis was not

The trial judge instructed the jury to “weigh the evidence and apply the law
individually to render separate verdicts as to each defendant.” Juries are presumed
to follow the court’s instructions The record reflects that Jef&ey’s association with
Otis and the closing remarks by Otis’s attorney are the incidental type of prejudice
that is expected with joint defendants and not the substantial injustice required to
find severance is necessary on abuse of discretion review. Jeffrey has failed to
demonstrate a “reasonable probability that substantial prejudice may result from a
joint trial.”22 The Superior Court did not abuse its discretion when it denied Jeffrey’s
motion to sever the defendants’ trials

.Ioinder of Otenses Proper

Prejudice from joinder of offenses may arise in the following three situations:

[F]irst, when the jury might cumulate the evidence of the various crimes

charged and find guilt when, if considered separately, it would not so

find; second, when the jury might use the evidence of one of the crimes
to infer a general criminal disposition of the defendant in order to find

 

22 skinner v. snne, 575 A.2d 1108, 1118 (Del. 1990).
20

guilt of the other crime or crimes; and, third, when the defendant might

be subject to embarrassment or confusion in presenting different and

separate defenses to different charges23
“The defendant has the burden of demonstrating such prejudice and mere
hypothetical prejudice is not sufficient”24

Prior to trial, Jeffrey moved to sever the charges relating to the Eden Park
Homicides from the gang participation-related charges The trial judge denied
Jeffrey’s motion. Jeffrey argues that the Gang Participation and Riot charges were
not of the same or similar character as the charges resulting from the Eden Park
Homicides and that they were not connected. He contends that evidence of the Gang
Participation and Riot charges would not have been admissible in a separate trial for
the charges relating to the Eden Park Homicides This Court previously considered
and rejected a similar argument in Taylor v. State.25

In Taylor, Kevin Rasin, Taylor’s co-defendant, argued that “the inclusion of
the Gang Participation charge at his trial for Murder, Attempted Murder, and
additional felonies was unfairly prejudicial to him because it allowed the State to

proffer evidence that portrayed Rasin as a frequent drug dealer.”26 Rasin claimed

that “without the Gang Participation charge, the State would not have been able to

 

22 Ashley v. Snne, 85 A.3d 81, 84_85 (Dei. 2014).
24 Skinnen, 575 A.2d at 1118.

25 76 A.3d 791 (Dei. 2013).

26 Id. at 800-01.

21

admit prior bad acts evidence during its case-in-chief.”27 The Court rejected Rasin’s
argument, stating:

Rasin’s argument is premised on the assumption that evidence of his
drug dealing would not have been admissible at a separate trial for the
First Degree Murder Charge and his two Attempted First Degree
Murder charges That is not a sound premise. The State presented
witnesses who portrayed Rasin as a frequent drug dealer between 2008
to 2010, and introduced his prior drug convictions during its case-in-
chief. This evidence was relevant to prove the existence of a gang, as
well as Rasin’s knowing promotion of the TrapStars’ criminal purpose.
This same evidence also would have been admissible in a separate trial
of Rasin’s Murder, Attempted Murder, and additional felony charges
Gang motivation and retaliation would have been an important part of
the State’s case-in-chief to prove Rasin’s motive to commit those
violent crimes Otherwise, the crimes would have seemed like random
acts of violence. In sum, the evidence supporting the charges in the
indictment was “inextricably intertwined” and, therefore, admissible
Because the evidence would have been admitted even if the charges
were severed, the trial court acted well within its discretion in denying
severance.28

The State presented evidence that Jeffrey was part of the Sure Shots gang and
that he and others engaged in violent acts as members of the gang. Retaliatory action
for violence inflicted upon fellow gang members was part and parcel of the State’s
case as it related to the Eden Park Homicides. The evening prior to the Eden Park
Homicides, Sure Shots gang members, including Jeffrey, participated in an
altercation at a nightclub that resulted in two people being shot; one of the two,

Allen, was a fellow Sure Shots member. The State presented evidence that

 

27 Ia'. at 801.
281d

22

retaliation for the nightclub shooting was the motive behind the Eden Park
Homicides. This evidence established the existence of the gang and the motive for
the Eden Park Homicides. As in Taylor, “the evidence supporting the charges in the
indictment [against Jeffrey] was ‘inextricably intertwined’ and, therefore,
admissible.”29

The record does not reflect that the jury either cumulated evidence among the
counts or inferred a criminal disposition to find Jeffrey guilty. The trial judge
instructed the jury that the evidence of each offense was to be considered separately.
The jury’s verdict demonstrates that they adhered to the court’s instruction, finding
Jeffrey guilty of Manslaughter (as a lesser-included offense of Murder First Degree
for Kamara), Disorderly Conduct (as a lesser-included offense of Riot), and
acquitting him of Assault Third Degree and Conspiracy Second Degree, The jury
was able to distinguish the offenses and segregate the evidence. Consequently,
Jeffrey cannot establish a reasonable probability of substantial prejudice.30 The trial
court did not abuse its discretion in denying his motion to sever the charges

Gang Participation E vidence

This Court reviews a sufficiency of the evidence claim de n0v0.31 This review

requires the Court to determine “whether any rational trier of fact, viewing the

 

29 Id
211 see skinner v. Siene, 575 A.2d 1108, 1118 (Del. 1990).
31 Ferrner v. Srere, 844 A.2d 297, 300 (Dei. 2004).

23

evidence in the light most favorable to the State, could find [a] defendant guilty
beyond a reasonable doubt.”32

Title 11, Section 616(b) of the Delaware Code provides that an individual is
guilty of illegal Gang Participation if he or she “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.”33

Thus, the statute contains three essential elements: active
participation in a criminal street gang; knowledge that the gang’s members engage
in or have engaged in a pattern of criminal conduct; and knowing promotion,
furtherance, or assistance in felonious conduct

A plain reading of the statute does not require the defendant to commit the
predicate offenses himself. Therefore, the issue is whether a reasonable juror could
find that Jeffrey participated in the Sure Shots knowing it was engaged in a pattern
of criminal gang activity and that he “knowingly promote[d], further[ed], or

assist[ed] in any criminal conduct by members of that gang which would constitute

a felony under Delaware law.”34 The State argues that there was sufficient evidence

 

32 Id. (quotation marks omitted) (quoting Monroe v. State, 652 A.2d 560, 563 (Del. 1995)).

33 ll Del. C. § 616(b). The statute defines “pattem 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 . . . .” (emphasis added). The statute goes on to list the applicable

offenses and also provides that the offenses must have occurred within 3 years of each other.
34 11 Del. C. § 616(b).

24

supporting the jury’s conviction of Jeffrey on the Gang Participation charge. In
support of this contention, the State points to Allen’s testimony, which established
Jeffrey’s awareness and participation in the gang’s criminal activity. Allen testified
that Jeffrey “[took] care of business” for the gang’s leader; that Jeffrey committed a
predicate act when he was convicted of disorderly conduct relating to the assault and
harassment of Kellam and Showell; that the jury’s conviction of Jeffrey for the
murder of Curry Was a predicate act supporting the Gang Participation charge in
addition to a conviction of Manslaughter for Karama, and Attempted Murder in the
First Degree of Bromfield; and that he had been identified as a member of the Sure
Shots. The record reflects that, based on this evidence, a reasonable jury could have
concluded that Jeffrey’s conduct was more than just passive association with the
Sure Shots
Ju)y Instructions

Jeffrey argues that the Superior Court erred in its instructions to the jury on
the Gang Participation charge. According to Jeff`rey, the jury instructions did not
properly state the mens rea requirements of the offense. This Court reviews the trial
court’s denial of a requested jury instruction de riovo.35 The Court will not reverse

the trial court’s jury instruction “if it is ‘reasonably informative and not misleading,

 

35 Floray v. State, 720 A.2d 1132, 1138 (Del. 1998).
25

judged by common practices and standards of verbal communication.”’36 The Court
will reverse, however, “if the alleged deficiency in the jury instructions ‘undermined
. . . the jury’s ability to intelligently perform its duty in returning a verdict.”’37

The State concedes that the trial judge gave an incorrect mens rea instruction.
Rather than instructing on the statute’s use of knowingly, the trial judge provided
instructions on intentional as follows: “The Defendant’s participation in the ongoing
organizations, associations, or group of three or more persons, whether formal or
informal was intentional; that is, it was his conscious object or purpose to engage in
a ‘criminal street gang,’ as that term has been defined for you.” Although this is a
misstatement of law, in this case it constituted a harmless error.

The State cites Flarner v. State38 for the proposition that “intentional is a
higher state of mind” than knowingly. The Delaware Criminal Code’s definitions
of intentionally and knowingly support the State’s contention. Section 231(b)
defines “intentionally”:

A person acts intentionally with respect to an element of an offense

when:

(1) If the element involves the nature of the person’s conduct or as a

result thereof, it is the person ’s conscious object to engage in conduct
of that nature or to cause that result and;

 

36 Id. (quoting Baker v. Reid, 57 A.2d 103, 109 (Del. 1947)).

37 Flamer v. State, 490 A.2d 104, 128 (Del. 1983) (quoting Newman v. Swetland, 338 A.2d 560,
562 (Dei. 1975)).
28 490 A.2d 104 (Del. 1984).

26

(2) If the element involves the attendant circumstances the person is
aware of the existence of such circumstances or believes or hopes they
exist39
Knowingly is defined in 11 Del. C. § 231(c) as follows:

A person acts knowingly with respect to an element of an offense when:

(1) If the element involves the nature of the person’s conduct or the

attendant circumstances, the person is aware that the conduct is of that

nature or that such circumstances exist; and

(2) If the element involves a result of the person’s conduct, the person

is aware that it is practically certain that the conduct will cause that

result40
Based on these definitions “intentionally” does denote a higher mens rea standard
as it requires the result of the conduct to be the person’s “conscious object,” rather
than simply requiring the person be aware of the circumstances and resulting
consequences Although the instructions in Jeffrey’s case contained a misstatement
of the law, the error was harmless beyond a reasonable doubt The instruction did
not undermine the jury’s ability to intelligently perform its duty or call the verdict
into question because the jury found Jeffrey guilty on a higher, albeit incorrect,
standard of mens rea.

Conclusion

For the reasons set forth above, the judgment of convictions by the Superior

Court is affirmed.

 

39 11 Del. C. § 231(b) (emphasis added).
40 11 Del. C. § 231(c) (emphasis added).

27

STRINE, Chief Justice, concurring:

l cannot join fully in the reasoning of my colleagues in the majority for one
reason. The majority holds that the Superior Court did not abuse its discretion in
denying a mistrial after the State’s witness Kelmar Allen, improperly testified to
being in witness protection based on the conclusion that: Allen only testified on
one occasion that he was in witness protection; Allen gave no testimony before the
jury that he feared Jeffrey or Otis; the case was not close; and, even if the jury
speculated that Allen’s participation in witness protection was directly attributable
to Jeffrey or Otis the jury instruction cured any such prejudice. But, this is a case
where the State argued that Otis and Jeffrey killed Herman Curry to eliminate him
as an eyewitness to the 2008 murder of Christopher Palmer that Otis was Wanted

for.1 Here, where the State’s theory at trial was one of “[r]evenge, retaliation, and

 

1 The State’s first remarks during its opening statements set out this theory:
Revenge, retaliation, elimination. Revenge for the murder of their friend Kirt
Williams. Retaliation for the attack on the Sure Shots. And elimination of
Herman Curry as an eyewitness to a 2008 murder Otis Phillips was wanted for.
January 2007 - January 27th, 2008 started out as a birthday party for Herman
Curry and ended in mayhem and murder, as Herman Curry watched Otis Phillips
gun down his friend Christopher Palmer right before his eyes It was Herman
Curry who called 911 that night at that party. It was Herman Curry who told the
police what happened to his friend Chris Palmer. It was Herman Curry who
identified Otis Phillips as being responsible for that murder. Based on Herman
Curry’s statements Otis Phillips was wanted for murder from that point on. . . .
[F]ueled by revenge, retaliation and elimination, armed with guns and extra
ammunition, Otis Phillips and Jeffrey Phillips walked into Eden Park, walked by
dozens of people, walked right up to Herman Curry, tapped him on the shoulder,
and as Herman Curry turned around, they executed him . . . .

Trial Tr., 21-22, Oct. 20, 2014.

elimination,”2 the introduction of witness protection evidence created a high
likelihood of prejudice which could not be cured by an instruction to the jury. But,
because the evidence the State presented against Otis and Jeffrey was so
overwhelming_and therefore this case was not at all close_I concur with the
majority that the Superior Court did not abuse its discretion in denying a mistrial.

1.

After the State disclosed that four of its witnesses had entered witness
protection, the Superior Court instructed the State not to elicit testimony from these
witnesses regarding their participation in the Witness protection program.3 The
State then put Kelmar Allen on the stand and questioned him about his plea
agreement and benefits he was receiving from the State, The following exchange
took place:

Q: I’m handing you now what’s been marked as State’s Exhibit 193.
Take your time with that document, Kelmar, and let us know if you
recognize it?

Yes, ma’am.

What is that document?
That’s my plea agreement

P.>@?.>

>l¢ >l< *

Now, without again looking at the document what, if any, benefits
did the State promise you in exchange for your plea?
J ust the, just the, like, witness protection.4

 

2 Id.
3 App. to State’s Answering Br. at B72 (Excerpt of Witness Protection Sidebar, Oct. 21, 2014).
4 Ia’. at B91 (Excerpt of Trial Test, Kelmar Allen, Oct. 24, 2014) (emphasis added).

2

Jeffrey and Otis immediately moved for a mistrial, arguing that Allen’s
testimony “irreparably damaged both Otis and Jeffrey Phillips’ positions in this
trial.”5 The Superior Court denied the motions for mistrial, finding that Allen’s
remark did not sufficiently prejudice Jeffrey or Otis because “Allen did not testify
in front of the jury that his participation in witness protection was in any way a
result of threats to him made by either defendan ” and “a previously prepared and
approved limiting instruction was immediately given to the jury.”6

The majority properly looks to the four factor analysis outlined in Pena v.
State7 as the governing standard to determine whether the Superior Court abused
its discretion when it denied Jeffrey’s motion for a mistrial.8 Under Pena, this
Court should analyze: (1) the nature and frequency of the offending comment; (2)
the likelihood of resulting prejudice; (3) the closeness of the case; and (4) the
adequacy of the trial judge’s actions to mitigate any potential prejudice.9

But, in my view, neither the majority nor the trial judge has explained how a
jury could ever unhear and unthink the reality that the State was paying for Allen’s

living expenses_including housing and food_so that he would testify against

 

5 Id. at A140.

6 State v. Phillips, 2015 WL 5332388, at *6 (Del. Super. Ct. Sept. 3, 2015).
7 856 A.2d 548 (Del. 2004).

8 Id. at 550.

9 Id.

Otis and Jeffrey.10 As Justice Jackson explained in Krulewitch v. United States,11
“[t]he naive assumption that prejudicial effects can be overcome by instructions to
the jury, all practicing lawyers know to be unmitigated fiction.”12

Not only that, the curative instruction did not in any way give the jury a
logical way to think about what it had just heard. The trial judge told the jury:

Ladies and gentlemen, the witness has testified that he currently has

some involvement in the Witness Protection Program. There’s no

evidence before you that the defendants personally made any threats

directly or indirectly, against the witness The fact that a witness

received a benefit in the program may only be considered by you for

the purpose of judging the credibility of the witness it should not be

considered by you in determining the guilt of the defendants.13

But, in all fairness this is too insubstantial a basis to cause a reasonable
juror to be able to put away what she had just heard. A reasonable juror dealing
with a case where the State’s theory was that the Sure Shots were a dangerous gang
willing to kill and intimidate those who witnessed their crimes-and that Otis and
Jeffrey set out to kill Curry for just that reason14-_would likely presume that the
reason Allen was in witness protection was because of a fear that he would be the

next witness targeted by the Sure Shots. That presumption would be reasonable_

it was in fact why Allen was in witness protection, as the State admitted at oral

 

10 App. to Appellant’s Opening Br. at A80 (July 2, 2014 Witness Protection Services
Agreement).

11336 U.s. 440 (1949).

12 Id. at 453 (Jackson, J., concurring) (citation omitted).

13 App. to Appellant’s Opening Br. at A138 (Oct 24, 2014, Excerpt of Test. And Voir Dire Of
Kelmar Allen).

14 See supra note l.

argument15

_and the State and trial judge gave the jury no reason to think there
was any other basis for Allen to be in witness protection,

Furthermore, telling the jury to consider the fact that Allen was in Witness
protection only for the purpose of judging his credibility has no real utility because
that fact was too important in the context of this case for the jury to disregard it on
mere instructions 1 fear this instruction asks more of jurors than we can honestly
do as judges

And, telling the jury to consider the fact that Allen was being protected by
the State only for credibility purposes does not help cure any prejudice because a
reasonable juror could actually give Allen’s testimony more credence on the
ground that he was some sort of hero for being willing to risk his life and limbs by
testifying against Jeffrey and Otis.

At best, any affirmance of the Superior Court’s decision to deny a mistrial
can rest solely on the fact that this was not a close case_a Pena factor that
basically creates a harmless error safety valve. There were numerous witnesses to
the Eden Park shooting, and the events leading up to it, who testified at trial and

implicated Jeff`rey. Allen_a Sure Shots member-testified that Jeffrey and

several other Sure Shots members were at a nightclub the night before the Eden

 

15 Oral Arg. at 36:00, Phillips v. State, No. 511, 2015 (Del. Nov. 2, 2016). Allen also admitted
during voir dire that he had been threatened by a Sure Shots member and that he was in witness
protection due to his fear of being killed over his participation in this case. App. to Appellant’s
Opening Br. at A139 (Oct 24, 2014 Excerpt of Test. And Voir Dire Of Kelmar Allen).

5

Park shooting. Jeffrey was involved in an altercation with a rival gang, and Kirt
Williams, a member of the Sure Shots was shot and killed. The next morning,
Allen saw Jeffrey at a house on Lamotte Street with other Sure Shots members
where they were collecting guns and loading them with bullets Seon Phillips_the
leader of the Sure Shots-loaded a .40 caliber gun and gave it to Jeffrey.
According to Allen, the Sure Shots were angry and they wanted to find the rival
gang members from the night before.

In addition to Sure Shots witnesses there were numerous witnesses not
affiliated with the Sure Shots who were present at Eden Park and saw Jeffrey and
Otis arrive together and shoot Curry and Kamara. Ricardo Brown, who was at
Eden Park for the soccer toumament, saw Jeffrey and Otis arrive and testified that
he “heard fire rockets go off. And when [he] turned around, [he] saw the two guys

. shooting their gun. One of them was shooting at Curry . . . [the other] was just
shooting wild, just firing wild.”16 Venus Cherry, who was also at Eden Park for
the soccer toumament, saw Otis and Jeffrey enter the park together, and he
identified Otis as Curry’s shooter and Jeffrey as Kamara’s shooter. Clayon Green,
another tournament participant was in the parking lot when the shooting occurred.
He testified that Otis and Jeffrey came out of a gold car and he saw them walk

across the field. He then saw Otis shoot at Curry and Jeffrey “shooting wildly over

 

16 App. to State’s Answering Br. at B133 (Excerpt of Trial test., Ricardo Brown, Oct. 27, 2014).
6

in the field.”17 Green stated that he was “a hundred percent sure” that he saw Otis
and Jeff`rey.18 After the shooting, Green saw Otis and Jeffrey run towards the gold
car, and he saw Jeffrey get into the back seat

Minutes later, the police discovered the gold car crashed at an intersection
Inside the car, police discovered a 9 mm handgun, a .40 caliber handgun, and a
baseball cap containing DNA from Otis Police officers searched the surrounding
area and found Otis and Jeffrey together in a back yard. They discovered 20
rounds of 9 mm ammunition in Jeffrey’s pants pocket and Jeffrey told them that he
had a gunshot wound in his leg. The firearm examiner determined that the shell
casings recovered from Eden Park were fired from the weapons found in the gold
car.

Based on this overwhelming evidence, there was no rational dispute in the
record that Jeffrey and Otis arrived together, Otis shot Curry and Jeffrey shot
Kamara, and they fled together. Thus, this was not a close case for purposes of the
Pena analysis19

Furthermore, the jury verdict demonstrates how carefully the jury considered

the evidence when it convicted Jeffrey, which provides even more support for

 

17 Ia'. at B136 (Excerpt of Trial test., Clayon Green, Nov. 5, 2014).

18 Trial Tr., 25-26, Nov. 5, 2014.

19 See e.g., Payne v. State, 2015 WL 1469061, at *4 (Del. Mar. 30, 2015) (finding a case was not
close under Pena when three witnesses identified the defendant as the person who committed the
crime and “the State put forth substantial circumstantial evidence suggesting Payne was guilty”).

7

upholding the Superior Court’s decision The jury convicted Jeffrey of Murder in
the First Degree (for Curry), Manslaughter (as a lesser-included offense of Murder
in the First Degree for Kamara), Gang Participation, Conspiracy in the First
Degree, four counts of Possession of a Firearm During the Commission of a
Felony, Assault in the Second Degree, Reckless Endangering in the First Degree,
and Disorderly Conduct (as a lesser-included offense of Riot). The jury acquitted
Jeffrey of Assault in the Third Degree and Conspiracy in the Second Degree.

This verdict demonstrates that the jury was able to distinguish between the
evidence presented for the various charges and properly apply the law. For
example, Jeffrey was charged with Murder in the First Degree for the killing of
Kamara. At trial, Jeffrey’s counsel argued that Jeffrey “wasn’t aiming at anyone.
He wasn’t targeting anyone. We have the best example of intent This is an
example of criminally negligent or reckless behavior.”20 Indeed, the witnesses
who testified at trial stated that Jeffrey was shooting “wildly.”21 Instead of
convicting Jeffrey of Murder in the First Degree or Murder in the Second Degree,
the jury convicted Jeffrey of Manslaughter for the killing of Kamara. The jury
instructions accurately stated that in order to find Jeffrey guilty of Manslaughter,
the jury must find that he acted recklessly, which means he “was aware of and

consciously disregarded a substantial and unjustifiable risk that death would result

 

2° Triai. Tr., 35, Nov. 19, 2014.
21 App. to State’s Answering Br. at B136 (Excerpt of Trial test., Clayon Green, Nov. 5, 2014).

8

from his conduct.”22 This is precisely what Jeffrey’s counsel argued Jef&ey was
guilty of. The fact that the jury found Jeffrey guilty of Manslaughter demonstrates
how carefully the jurors considered the evidence and applied the law when
reaching their decision, and supports the conclusion that even if there was an error,
it was harmless

Accordingly, I concur with the majority that the Superior Court did not
abuse its discretion in denying a mistrial after Allen’s remark, but I base my
finding solely on the fact that this was not a close case.

II.

For the future, it is also worth noting that this case presents some learning
lessons There was no reason for the State to ask the question it did about the
benefits Allen was receiving, which he could answer truthfully only by admitting
that he was receiving benefits as a participant in the witness protection program.
Precisely because this was a subject that was discussed by the trial judge, the
prosecution, and the defense,23 best practice would have been for the parties to
agree that the trial judge would tell the jury before Allen went on the stand that he
had received a plea agreement from the State which contained certain benefits that

the jury could and should take into consideration when determining the credibility

 

22 Jury Instrs., 21, Nov. 18, 2014.
23 App. to State’s Answering Br. at B70-72 (Excerpt of Witness Protection Sidebar, Oct. 21,
2014); id. at B76a-76b (Excerpt of Trial Conference, Oct. 22, 2014).

9

of his testimony, Had that happened, this entire issue likely could have been
avoided. Altematively, the prosecution and defense could have agreed on the
prosecutor’s approach. But instead, the State asked an extremely sloppy and open-
ended question on an issue that all parties knew in advance had to be handled with
care. In fact by asking Allen what benefits he was receiving “without again
looking at” his plea agreement the State focused Allen’s mind on benefits outside
the plea agreement inviting the candid response Allen gave, which was that he was
also receiving benefits as a participant in the witness protection program.24
Likewise, it is hard to look back on this case and understand how defense
counsel for Otis and Jeffrey did not recognize that they were likely to come to a
junction in the trial where they would be pointing fingers at each other’s clients
After Allen’s remark about being in witness protection, Jeffrey and Otis moved for
severance in addition to a mistrial because they disagreed about how to deal with
the harm created by the State eliciting testimony that Allen was in witness
protection Jeffrey wanted to cross-examine Allen about the financial benefits that
he was receiving from being in witness protection to discredit him, Otis, however,
did not want the fact that Allen was in witness protection_-which underscored the
State’s theory that the Sure Shots are a danger to witnesses like the deceased

Curry-_to be discussed any further.

 

24 App. to State’s Answering Br. at B91 (Excerpt of Trial Test., Kelmar Allen, Oct. 24, 2014)
(emphasis added).

10

But what Otis and Jeffrey did not argue to the Superior Court was
something far more troubling that would emerge only later in the case. Neither
before trial, when Jeffrey initially sought severance, nor after Allen stated that he
was in witness protection, did defense counsel argue that a mistrial or severance
was required because Jeffrey and Otis would be pointing fingers at each other:
Jeffrey, by suggesting Otis went to Eden Park to kill Curry and Jeffrey was just
there by happenstance and got caught up in a melee during which he accidentally
shot Kamara; Otis by implying that he was not even present at Eden Park and
suggesting Jeffrey killed both Curry and Kamara.

But at closing arguments that is exactly what happened Jeffrey argued that
he was not a member of the Sure Shots and he went to Eden Park innocently that
day without any knowledge that Otis was going to kill Curry. Jeffrey’s counsel
joined the prosecution in telling the jury that Otis should be convicted of
intentional murder when he stated:

We know that the state of mind of Otis Phillip was intentional

conduct That is the best example of intent; walking up to someone,

tapping them on the shoulder, firing two shots and to believe some of

the witnesses Curry falls to the ground, he shoots him one more time

for good matters or Curry starts running and he shoots him another
time, and he continues to shoot at him, That’s intent . . .25

 

25 Trial Tr., 33-34, Nov. 19, 2014.
l l

Jeff`rey’s counsel claimed that Jeffrey was merely “criminally negligent or
reckless” for wildly firing his weapon.26

For his part counsel for Otis flat out argued that there was a reasonable
doubt that Otis was even at Eden Park when Curry and Kamara were killed, and
instead he suggested that Jeffrey was present at Eden Park and was responsible for
both shootings27 Otis’s counsel stated that the night before the Eden Park
shooting, several Sure Shots were at a nightclub where there was a gunfight and
“[i]nvolved in the gunfight the evidence would show, is Jeffrey Phillips. Again,
Otis Phillips isn’t around.”28 The morning of the Eden Park shootings Otis’s
Counsel stated that “[t]wo people -- two people -- leave Lamotte Street according
to Kelmar Allen: Jeffrey Phillips and Sheldon Ogle . . . We do know Otis wasn’t
there.”29

These are not compatible theories and it strikes me as likely that counsel for
Otis and Jeffrey knew before trial_or at least by the time Allen said he was in
witness protection_that these theories could form the primary basis for their
ultimate defense. Furthermore, counsel should have known that the fact that their

clients share the same last name but are not related was likely to create additional

 

26 Id

27 App. to Appellant’s Opening Br. at A161-64 (Nov. 18, 2014 Excerpt of Closing Arg. of Otis
Phiiiips).

28 Id. at Al6l .

29 Id. er A164.

12

confusion for the jury, especially where, as here, there are several other Sure Shots
with the last name Phillips who are related to Otis but not Jeffrey. But counsel did
not raise this argument either time when they moved for severance during trial.

By failing to confer with each other outside of the presence of the State, and
failing to present a timely severance or mistrial motion that focused on the
possibility that Otis and Jeffrey would point fingers at each other, the defenses for
Otis and Jeffrey left the trial judge to focus on weaker arguments for severance that
the majority properly says the trial judge was within his discretion to consider not
compelling enough to accept as justifying the costs and burden of separate trials
In fairness to the trial judge, he could not have known Jef&ey and Otis would
ultimately implicate each other, and trial judges cannot be expected to focus on
arguments that counsel do not present But although there was overwhelming
evidence against Jeffrey and Otis the resulting record is nonetheless concerning
and could have justified reversal and the costs of two retrials in a closer case.
Without underestimating the complexities both the State and defense counsel face
in handling cases where members of gangs are alleged to have committed crimes in
concert the very importance and difficulty of the potential issues arising out of a
joint trial would seem to counsel for early and timely identification of and focus on
those issues so they can be addressed in a thoughtful, non-seat-of-the-pants

mann€r.

13

