IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

ID No. 1511006774-B

KEVIN COLEMAN,

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Defendant.

Submitted: May 21 , 2016
Decided: June 3, 2016

MEM0RAN1)UM 0_1>1N10N AND_ 0R1)ER

Upon State ’s Motion to Reopen,
GRANTED.

John S. Taylor, Esquire, Deputy Att0rney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Jonathan Layton, Esquire, Layton & Ass0ciates, P.A., 1308 Delaware Avenue,
Wilmington, Delaware, Attorney for Defendant.

MEDINILLA, J.

INTRODUCTION

On May 2, 2016, this Court conducted a bench trial in the above-captioned
matter on the charges of Possession Of A Firearrn By A Person Prohibited and
Possession Of Ammunition By A Person Pr0hibited. The State called no witnesses
in support of its case but submitted into evidence one exhibit, without objection
from Defendant: a certified copy of a 20ll prior conviction for Robbery Second
Degree to establish Defendant’s guilt that he was a person prohibited. In closing
arguments, Defendant challenged the sufficiency of the State’s evidence, arguing it
did not adequately identify Defendant as the person whose record had been
introduced for the 2011 Robbery Second Degree conviction. On May 3, 2016, the
State moved to reopen the evidence in the bench trial. Defendant opposes. After
consideration of the parties’ briefmgs, and a full review of the oral representations
made during the jury and bench trials in this matter, for the reasons stated below,
the State’s Motion to Reopen the evidence in the bench trial is GRANTED.

FACTUAL AND PROCEDURAL HISTORY

Defendant was charged through indictment with the following six offenses:
Carrying A Concealed Deadly Weapon, Possession Of Heroin, Resisting Arrest,
Bicycle In Use At Night Shall Be Equipped With A Lamp, Possession Of A
Firearrn By A Person Prohibited ("PFBPP"), and Possession Of Ammunition By A

Person Prohibited ("PABPP"). On April 28, 2016, and April 29, 2016, this Court

presided over a jury trial in the above-captioned matter after severing the PFBPP
and PABPP offenses; the jury returned a guilty verdict against Defendant for
Carrying A Concealed Deadly Weapon and Resisting Arrest.

At the conclusion of the jury trial, Defendant, without objection from the
State, waived to bench trial on the PFBPP and PABPP offenses Notably, prior to
commencing the bench trial, Defense counsel raised an issue related to when
Double Jeopardy would attach in a bench trial,l knowing that the State had no
intention of calling any witnesses.z On May 2, 2016, the State brought to court
three witnesses from law enforcement but did not call them-or any witnesses-on
irs behaif. 3

Instead, the State asked the Court to do two things: incorporate the evidence
from the jury trial and take judicial notice of the Defendant’s conviction of

Robbery Second Degree under Delaware Rule of Evidence ("D.R.E.")

l The Court does not consider Double Jeopardy issues in this analysis. lt is mentioned only as procedural
background as it pertains to Defendant’s arguments that the State had ample opportunity to properly
present and prepare for its case.

2 Defense counsel’s request for clarification regarding Double Jeopardy prompted the prosecutor to
request a brief postponement in order to confer with his Offlce; the Court granted this request and
rescheduled the matter to the next available weekday for Monday, May 2, 2016.

3 The State indicated that it only brought the three witnesses out of an abundance of caution in case
Defendant raised objections to the admissibility of the 2011 conviction. Since it was introduced-and
admitted_without objection, the State determined it unnecessary to call its witnesses.

202(d)(l)(B).4 In support of moving under D.R.E 202(d)(l)(B), the State supplied
the Court with State’s Exhibit l, a certified copy of the Superior Court Criminal

3

Docket for a 2011 conviction of a "Kevin Coleman.’ Defense counsel did not
object to the admissibility of the document and expressly - and carefully - stated
there was no good faith basis to oppose the admissibility of this evidence as "self-
authenticating."s This Court took judicial notice of the record under D.R.E.
ZOZ(d)(I)(B). "’ The State rested. No motions were presented by Defendant nor did
Defendant present evidence,

In closing arguments, the State briefly asked that the Court find Defendant
guilty of PFBPP and PABPP and argued it had proven beyond a reasonable doubt
the elements of the charged offenses. Defendant argued that the Court had
insufficient evidence to link this Defendant to the certified copy the 2011

conviction. Defendant argued that no evidence was presented that established that

the person at defense counsel table was the person to whom the certified record of

1.1..

4 D.R.E. 202(d)(l)(B) ("Judicial notice may be taken, without request by a party, of  records of the
court in which the action is pending and of any other court of this State or federal court sitting in or for
this State.").

5 Bench Trial, State v. Kevin Coleman, I.D. No. 1511006774, May 2, 2016, by Def. at appx. lO:26:l5am.
See also Def.’s Resp. at 7. Defense counsel concedes that Defendant’s "response was that there was no
objection as to the authenticity of the documents pursuant to Delaware Uniform Rules of Evidence
902(4), while at the same time carefully wording the response so as to allow for argument at closing. ln
particular, undersigned counsel did not comment upon the matter of judicial notice, as it appeared
duplicative_if the documents are admissible under D.U.R.E. 902, then it does not matter if they are
admissible under judicial notice." Id.

6 Bench Trial, State v. Kevz`n Coleman, I.D. No. 1511006774, May 2, 2016, by Court at appx. l0:27:00am.

4

conviction be1onged. While the first and last name on the State’s exhibit matched
Defendant’s, there was no pedigree evidence presented in the jury or bench trials
such as a date of birth, SBI number, address, or any other identifying inforrnation,
to connect him to the 2011 conviction. Therefore, while the record may have been
admissible, Defendant argued the State failed to establish proof beyond a
reasonable doubt that he was the person prohibited from possessing a
firearm/ammunition at the time of the incident. No authority was presented during
Defendant’s closing argument to support his position.

Defense counsel further pronounced that his trial strategy included waiting
until the close of the State’s case to argue this position, explaining that to say
anything sooner would have "telecasted" Defendant’s strategy and given the State
an opportunity to cure any defect regarding its evidence.

The State’s responded that it was not required to present witnesses to
establish a nexus linking Defendant to the evidence because Defendant’s failure to
object meant that Defendant conceded it was his record. In addition, the
Defendant’s express statement that he had no good faith basis to object also meant
that he waived any and all rights to argue that the evidence was insufficient for a
finding of guilt. Again, no authority was presented during oral arguments to

support this position. The Court asked for briefing from both sides.

On May 3, 2016, the State submitted its brief in support of its position and
maintains that by taking judicial notice of the conviction, the Court acknowledged
the relevance of the evidence under D.R.E. 4()2, and implicitly, Defendant’s
identity. Therefore, the evidence sufficiently allows this Court to make any and all
reasonable inferences for a finding of guilt. Alternatively, it also moves to reopen
the evidence, if needed, to establish the nexus between Defendant and his record of
conviction.

On May l2, 2016, Defendant responded that his failure to object regarding
the admissibility of evidence does not constitute a waiver of subsequent arguments
concerning the sufficiency of this evidence, nor does it relieve the State from
meeting their burden of proof. On May 21, 2016, the State submitted its reply and
provided additional authority in support of its altemative request to reopen the
evidence, Having considered these submissions, as well as statements made during
the bench trial, the matter is ripe for review.

STANDARD OF REVIEW

Applications moving a court to reopen the State’s case, even after both sides

have rested, are addressed to the discretion of the trial court.7 Under well-settled

Delaware law, this Court has the "power and authority to reopen, on timely

7 State v. Patnovic, 129 A.2d 780, 782 (Del. Super. 1957). See also Pepe v. State, l7l A.2d 216, 219

(Del. 1961).

application and for good cause shown, a dismissal of a criminal proceeding,

whether entered with or without prejudice."s This Court has such powers in order

to "undertake whatever action is reasonably necessary to ensure the proper

administration of justice."9

The Court is guided by the standards set forth in State v. Guthmanm and
Um'tea’ States v. Ali“ in making the determination of whether to reopen a case. As
noted in Ali:

In exercising its discretion, the court must consider the
timeliness of the motion, the character of the testimony,
and the effect of the granting of the motion. The party
moving to reopen should provide a reasonable
explanation for failure to present the evidence in its case-
in-chief. The evidence proffered should be relevant,
admissible, technically adequate, and helpful to the jury
in ascertaining the guilt or innocence of the accused. The
belated receipt of such testimony should not imbue the
evidence with distorted importance, prejudice the
opposing party's case, or preclude an adversary from
having an adequate opportunity to meet the additional
evidence offered.lz

8 s¢a¢e v. Gu¢hman, 619 A.zd 1175, 1176 (Del. 1993).
°ld. 611178.

‘° 619 A.2d1175.

" 2007 WL 3120326.

12 United States v. Ali, 2007 WL 3120326, at *3 (3d Cir. Oct. 25, 2007) (quoting Um`led States v. Coward,
296 F.3d 176, 181 (3d Circ. 2002)).

lt is important to note that this matter is still in the midst of trial proceedings
and this Court has not ascertained the guilt or innocence of Defendant. Both sides
in this case employed their respective trial strategies. The Court is less concemed
about addressing their strategies, carefully selected wording, or the timing of when
their arguments were made. This Court is most "properly interested in seeing that

all salient facts are presented to the [finder of facts] to bring about a just result.""

ANALYSIS

The State moved this Court pursuant to D.R.E. 202(d)(l)(B) to "tal<e judicial
notice of the Defendant’s conviction for Robbery Second in case number
1010013648."14 Having now reviewed the statements made by the prosecutor
when it asked the Court to take judicial notice of the conviction, the record
establishes that the State was submitting it as "the Defendant’s conviction."
Common sense suggests that if it was not his record, Defendant would have been
obligated to properly object to its admissibility under D.R.E. 402 as irrelevant and
inadmissible. Defendant did not do so.

lt is true that the State is expected to meet its burden and Defendant should
not be considered to have waived any challenges regarding the sufficiency of this

evidence merely because he did not object to its admissibility. However, out of an

'3 Uni¢ed sims v. Ram@s, 291 F. supp. 71, 73 (D.R.I. 1963), a/fd, 413 F.zd 743 (ist cir. 1969).

14 Bench Trial, State v. Kevin Coleman, I.D. No. 1511006774, May 2, 2016, by State at appx. lO:25:l3am
(emphasis added).

8

abundance of caution, the State came prepared with three witnesses, presumably
ready, willing and able to establish the identity of this Defendant. When
Defendant did not object to the admissibility of "the Defendant’s conviction," the
State reasonably believed that additional witnesses were not needed to further
connect Defendant to the record. This was a fair interpretation of what the State
believed was sufficient to obtain a conviction.

Here, Defendant essentially argues that while the State may have properly
offered evidence to begin to establish the identity of the Defendant, the State fell
short of finishing the task. While this Court may rely on the evidence from which
to make reasonable inferences in this case to connect Defendant to the sole piece of
evidence in this case, since no witnesses were presented, and no other evidence
was offered, out of an abundance of caution, this Court finds that the motion to
reopen is appropriate.

The State has timely and sufficiently shown good cause, and the
administration of justice so requires that the proceedings be reopened. Pedigree
evidence linking Defendant and the certified prior conviction record may be
"relevant, admissible, technically adequate, and helpful to [this Court] in
ascertaining the guilt or innocence of the accused."]§ This Court will afford both

sides an opportunity to address any additional evidence or testimony that may be

‘5 Alz, 2007 wL 3120326, ar *3 (quoting Coward, 296 F.zd ar 181).

9

l()]d

offered such that any delayed introduction of evidence will "not imbue the
evidence with distorted importance, prejudice [Defendant’s] case, or preclude
[Defendant] from having an adequate opportunity to meet the additional evidence
offered."]é

This Court finds that good cause to allow the State to reopen has been
properly measured; there is no surprise to Defendant since he is aware that his
connection to the 2011 conviction has been a focus of the PFBPP and PABPP
charges. He will have an opportunity to meet his proof through cross-examination
Lastly, there is little detriment to the Defendant since the only evidence presented
is the 2011 conviction record and it does not contradict defense evidence.

CONCLUSION

Based on the foregoing, the State’s Motion to Reopen the evidence in the

above-captioned matter is GRANTED. Defendant will have an opportunity to

supplement his case and to rebut any additional evidence o'i`j§?;z~`i’§§' '  the State.

  
  

IT IS SO ORDERED.

oc: Prothonotary
cc: John S. Taylor, Esquire, Deputy Attomey General

Jonathan Layton, Esquire, Attomey for Defendant  _ '
Kevin Coleman, Defendant § _r -
Investigative Services Office »'-»»-~»““

lO

