      IN THE SUPREME COURT OF THE STATE OF DELAWARE


DASHAWN AYERS                 §
                              §     No. 646, 2013
          Defendant Below,    §
          Appellant,          §
                              §     Court Below: Superior Court
          v.                  §     of the State of Delaware,
                              §     in and for Kent County
STATE OF DELAWARE,            §
                              §     Cr. I.D. No. 1208001950
          Plaintiff Below,    §
          Appellee.           §
       ____________________________________________________

MICHAEL E. DEMBY,                      §
                                       §    No. 667, 2013
            Defendant Below,           §
            Appellant,                 §
                                       §    Court Below: Superior Court
           v.                          §    of the State of Delaware,
                                       §    in and for Kent County
STATE OF DELAWARE                      §
                                       §    Cr. I.D. No. 1206011513
           Plaintiff Below,            §
           Appellee.                   §


                              Submitted: June 11, 2014
                               Decided: July 21, 2014

Before STRINE, Chief Justice, BERGER and RIDGELY, Justices.

Upon appeal from the Superior Court. AFFIRMED in part, REMANDED in part.

Benjamin A. Schwartz, Esquire (argued), Schwartz & Schwartz, Attorneys at Law,
P.A., Dover, Delaware for Appellant Dashawn Ayers.

André M. Beauregard, Esquire (argued), Brown, Shiels & Beauregard, LLC,
Dover, Delaware for Appellant Michael E. Demby.
Andrew J. Vella, Esquire (argued), Department of Justice, Wilmington, Delaware,
for Appellee State of Delaware.


BERGER, Justice:




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      In this consolidated appeal we consider, among other things, whether the

admission of wiretap recordings in a criminal trial violated appellants’

confrontation rights under our state or federal constitutions. Appellants contend

that the recordings were “testimonial” because two witnesses explained the

meaning of the codes used in the recorded conversations, and appellants were

unable to cross-examine the declarants about the coded language. We hold that the

wiretap recordings, used to prove that appellants committed the crime of

conspiracy, were admissible.    There was no constitutional violation, and the

appellants’ remaining arguments lack merit.       Accordingly, the judgments of

conviction are affirmed.

                      Factual and Procedural Background

      In May and June 2012, the Delaware State Police led a multi-agency law

enforcement team that was investigating drug sales in Kent County, Delaware.

The team used wiretaps to monitor communications by Galen Brooks, the target of

the investigation.   On May 26, 2012, the police heard a phone conversation

between Brooks and Michael Demby, which led them to believe that a drug deal

was about to take place. Based on that call, the police established surveillance at

the McKee Crossing Shopping Center, and at Brooks’s father’s home on Red Oak

Drive in Dover. In the next call, the police heard Brooks telling Demby to prepare

a package of cocaine and to bring it to the buyer, who would be driving a Dodge



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Caravan. Brooks told Demby that the price was $2400. The police saw Demby

leave the Red Oak Drive home and place a package in the trunk of a Honda parked

at the house. Demby and Brooks’ brother, James, then got into the Honda and

drove off.

      At the McKee Crossing Shopping Center, the police saw Dashawn Ayers

seated in a Dodge Caravan in the parking lot. Demby and James arrived in the

Honda and parked next to the Caravan. Demby got out of the Honda and got into

the Caravan, while James went into a store in the shopping center. After a few

minutes, Demby got out of the Caravan and went into the store James had entered.

Shortly thereafter, the two men left the store, returned to the Honda, and drove

away. Ayers, driving the Caravan, also left the parking lot.

      One of the officers in the surveillance unit that was following Ayers

instructed Delaware State Police Corporal Timothy Valeski to conduct a traffic

stop on the Caravan. Ayers produced his license, but when Valeski told him to exit

the car, Ayers put the Caravan in gear and fled before the police could search it.

Valeski was instructed not to pursue Ayers for public safety reasons.

      After the meeting at the shopping center, the police contrived to monitor

Brooks’ phone conversations. Demby called Brooks and told him that everything

had gone well and that he had the money. Brooks told Demby to keep $100 for his

participation and to give the remaining $2300 to Valerie Brooks, his mother.



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Valerie called Brooks a few minutes later to tell him that she received the money.

Brooks told his mother to keep $50 for herself.

       Ayers turned himself in to the Delaware State Police on June 1, 2012, stating

that he knew he had outstanding warrants. The next day, Brooks and Demby had a

telephone conversation in which Brooks agreed to give Demby one ounce of

cocaine for the good work Demby had done. Police later observed an exchange of

money between the two men.             On June 14, 2012, the Delaware State Police

arrested Demby. A Kent County Grand Jury returned an indictment against Ayers,

Demby, Brooks, and 11 other individuals. Ayers was charged with one count of

Drug Dealing, one count of Aggravated Possession, and one count of Conspiracy

Second Degree.1       Demby was charged with two counts of Drug Dealing, two

counts of Aggravated Possession, two counts of Conspiracy Second Degree, one

count of Criminal Solicitation Second Degree, and one count of Possession of

Drug Paraphernalia.

       Before trial, Ayers and Demby unsuccessfully moved to suppress the

wiretap evidence. Ayers also filed a Motion to Sever, which was denied. The jury

convicted Ayers on all counts.          Demby was convicted of one count of Drug

Dealing, one count of Aggravated Possession, one count of Conspiracy Second

Degree, and one count of Possession of Drug Paraphernalia. He was acquitted on

1
 Ayers and Demby also were charged with one count of Racketeering, but the State entered a nolle
prosequi on those charges before trial.

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the remaining charges. Ayers and Demby filed separate appeals, which were

consolidated for consideration and decision.2

                                       Discussion

        The Sixth Amendment to the United States Constitution provides that “the

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

Article I, Section 7 of the Delaware Constitution, similarly, provides that “the

accused hath a right . . . to meet the witnesses in their examination face to face.”

Ayers argues that the admission of the wiretap recordings violated his

confrontation rights under both constitutions. Settled law defeats this claim.

       In Crawford v. Washington,3 the United States Supreme Court held that the

Confrontation Clause 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 Jones v. State,5 this Court

explained the circumstances under which a statement is “testimonial” for purposes

of the Confrontation Clause:

       [A] statement is testimonial and implicates the Confrontation Clause
       where it is given in non-emergency circumstances and the declarant
       would recognize that his statements could be used against him in
       subsequent formal proceedings. By contrast, a casual remark to an
       acquaintance is a nontestimonial statement. Similarly, . . . statements
2
   The two appellants will be referred to collectively as Ayers, unless the context requires
differentiation.
3
  541 U.S. 36 (2004).
4
  Id. at 53-54.
5
  940 A.2d 1 (Del. 2007).

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          made in furtherance of a conspiracy are nontestimonial.6

The wiretap recordings are not testimonial under the Sixth Amendment because the

declarants obviously did not expect their statements to be used against them, and

because the statements were made in furtherance of a conspiracy.

          Ayers argues that, even if the wiretap recordings would be nontestimonial in

other circumstances, this case is different because Special Agent Jeffrey Dunn, and

another officer, told the jury what the coded language in the wiretaps meant. For

example, in the wiretap, a person says, “Take three germs and put it on the scizzy.”

Dunn testified that “three” refers to three grams of cutting material that is added to

the cocaine before sale, and that a “scizzy” is a scale.7 Dunn also testified that the

price per ounce was consistent with the price of cocaine in that location at that

time.

          Ayers complains that he was unable to confront the declarants to determine

whether Dunn had correctly interpreted the conversation. But Dunn’s interpretive

testimony did not change the nontestimonial nature of the wiretap recordings. It is

true that Dunn may have misinterpreted the coded language, but his interpretation

was open to challenge during cross-examination. In addition, Ayers could have

presented his own witnesses to testify that the wiretap recordings meant something

entirely different. In sum, admission of the wiretap recordings did not violate the

6
    Id. at 12-13 (internal quotations and citations omitted).
7
    Appellee’s Appendix at B-28-29.

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Sixth Amendment.

        Alternatively, Ayers claims that the wiretap recordings violate his

confrontation rights under the Delaware Constitution. He says that the right to

“examine witnesses face to face”8 means just that.           Under Ayers’ view, the

Delaware Constitution would preclude all hearsay evidence. This Court rejected

the same argument in McGriff v. State:9

        A strict reading of the phrase “face to face” would virtually foreclose
        the State’s ability to admit hearsay testimony against a criminal
        defendant, including those statements determined to be particularly
        trustworthy, substantially eliminating many exceptions to the rule
        prohibiting hearsay . . . . The right to meet witnesses “face to face” is
        not mandatory in all circumstances; rather, Article I, § 7 expresses a
        preference for “face to face” confrontation in accordance with the law
        of the land – due process. That preference must yield in those hearsay
        situations that are consistent with due process: firmly rooted
        exceptions and hearsay statements that have particularized guarantees
        of trustworthiness.10

        Ayers’ remaining claims also are unavailing.        He says that the wiretap

recordings should not have been admitted because the trial court failed to follow

proper procedure. Under Delaware Rule of Evidence (D.R.E.) 801(d)(2)(e), a

statement is not hearsay if made by a co-conspirator during the course and in

furtherance of the conspiracy. The Rule requires, however, that “the conspiracy

has first been established by the preponderance of the evidence to the satisfaction


8
  Del. Const. Art. I, § 7.
9
  781 A.2d 534 (Del. 2001).
10
   Id. at 541-42 (internal citation omitted).

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of the court.”11 To satisfy this requirement, the trial court conducted a voir dire

examination of Lloyd outside the presence of the jury. Lloyd testified about the

content of the wiretaps, the subsequent surveillance of the parties, and the

circumstantial evidence indicating that a drug transaction did take place in

accordance with the plan discussed in the wiretaps. Based on this proffer, the trial

court ruled that the existence of a conspiracy had been established by a

preponderance of the evidence.

       Ayers complains that the trial court should have admitted the wiretap

recordings “provisionally” and should have made finding as to the existence of a

conspiracy and the members of the conspiracy at the end of the trial. There is no

such rigid requirement under Delaware law. In Harris v. State,12 this Court held:

       Even if the trial court had enunciated an incomplete standard or failed
       to articulate all three elements of the co-conspirator exception, the
       record indicates that the trial court did not abuse its discretion in its
       evidentiary ruling. The evidence clearly established that: 1) a
       conspiracy existed; 2) [the defendant and other named participants]
       were members of the conspiracy; and 3) [the co-conspirators’]
       statements were made during and in furtherance of the conspiracy.13

The same analysis applies in this case, and the record indicates that the trial court

did not abuse its discretion in admitting the wiretap recordings.         The record

establishes that there was a conspiracy between Demby, Ayers, Brooks, and

Valerie Brooks and that the wiretap statements were made during and in
11
   D.R.E. 801(d)(2)(e).
12
   695 A.2d 34 (Del. 1997).
13
   Id. at 42.

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furtherance of the conspiracy.

      Ayers raises two additional claims unrelated to the wiretap evidence. First,

he claims that the State violated the Double Jeopardy Clause by indicting him on

separate charges of Drug Dealing and Aggravated Possession.               But the two

offenses do not include all the same elements. The offense of Drug Dealing, 16

Del. C. § 4752(1), requires proof that the defendant delivered or possessed with the

intent to deliver 20 or more grams of cocaine.           The offense of Aggravated

Possession, 16 Del. C. § 4752(3), requires proof that the defendant knowingly

possessed 25 or more grams of cocaine. In other words, Drug Dealing requires an

intent to deliver a smaller quantity of cocaine, whereas Aggravated Possession

requires only possession, but of a larger quantity of cocaine. Although Ayers’

Double Jeopardy claim lacks merit, the State acknowledges that the two crimes

merge for purposes of sentencing. Accordingly, we remand for the sole purpose of

merging the two charges and resentencing.

      Finally, Ayers alone appeals the trial court’s denial of his Motion to Sever.

In deciding whether to grant a motion to sever, the trial court should consider:

“(1) problems involving a co-defendant’s extra-judicial statements; (2) an absence

of   substantial independent      competent evidence of         the movant’s guilt;

(3) antagonistic defenses . . . ; and (4) difficulty in segregating the State’s evidence




                                          10
as between the co-defendant and the movant.”14 Ayers contends that there would

be difficulty in segregating the State’s evidence because he was involved in only

the first of the two drug transactions discussed in the wiretap recordings. Ayers

says that evidence of the second transaction prejudiced him. Also, for the first time

on appeal, Ayers contends that he was deprived of the right to call Demby as a

witness.

          We find no abuse of discretion in the trial court’s denial of the Motion to

Sever.       Ayers had the burden of demonstrating “a reasonable probability that

substantial injustice may result from a joint trial.”15 There is no reason why a jury

could not differentiate between the two drug deals, and the State did not suggest

that Ayers was involved in the second one. Thus, there is no reason to believe that

Ayers would be substantially prejudiced.               The untimely claim that Ayers was

deprived of calling Demby as a witness is even weaker. In separate trials, Demby

could not be required to testify. If called as a witness, Demby most likely would

have invoked his Fifth Amendment right not to incriminate himself, given his

decision not to testify at the trial. Ayers presented nothing to suggest otherwise.




14
     Floudiotis v. State, 726 A.2d 1196, 1210 (Del. 1999).
15
     Bates v. State, 386 A.2d 1139, 1141 (Del. 1978).

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                                    Conclusion

      Based on the foregoing, this matter is remanded for resentencing on the

merged offenses of drug dealing and aggravated possession. In all other respects,

the judgments of conviction are affirmed. Jurisdiction is not retained.




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