IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
V. DEF. I.D.: 1512002451
VINCENT CLARK,

Defendant.

\/\/\/\/\/\/V

Subrnitted: December 22, 2016
Decided: February 13, 2017

MEMORANDUM OPINION
Upon Consideration of the State ’s Motion

to Aa’mz't Out of Court Statements
GRANTED in Part and DENIED in Part

Brian J. Robertson, Esquire and Christina M. Kontis, Esquire, Departrnent of
Justice, Wilmington, Delaware. Attorneys for the State of Delaware.

Dade D. Werb, Esquire and David C. Skoranski, Esquire, Ofi`lce Of Defense
Services, Wilmington, Delaware. Attorneys for the Defendant.

BUTLER, J.

STATEMENT OF THE CASE

The facts necessary to understand the issues in this case take us through the
parking lot of a north Wilmington apartment compleX, through a police station and
eventually to the tragic death of the State’s star Witness, Who is now unavailable to
tell the story of What happened. Her death has caused an evidentiary quagmire that
the State has asked the Court to rule on pretrial. The Court Will do so by first
discussing the story of the case, as understood through the lens of the deceased
Witness’ statements

Molly Hoffman Was a nearby Pennsylvania resident Whose life put her in
contact With drug addiction and its attendant personalities. By December, 2015,
she had prior convictions for shoplifting and Was actively on probation in
Pennsylvania from a drug conviction. She had been to rehab, had been on home
confinement, yet continued to battle her demons. She Was living in the basement
of her sister’s house, trying to stay clean; her success cannot be claimed With any
certainty.

On December 3, 2015, Ms. Hoffman asked her sister Michelle to drop Molly
off at the family doctor’s office for a routine visit, assuring her sister that she
Would get a ride home from someone else. Michelle Was acutely aware of Molly’s
drug use but believed Molly Was capable of getting a ride. Once Michelle left

Molly, Molly proceeded to her doctor’s appointment and contacted “l\/lartin” (not

otherwise specified) who lived in the Brandywine Apartments in North
Wilmington, a short drive away from the doctor’s office. Martin invited Molly to
visit and asked Molly to obtain illegal drugs (cocaine) for him to ingest when she
arrived. Molly agreed to Martin’s request.

Molly knew at least two individuals who could satisfy Martin’s request:
Jamai White and Vincent Clark. Molly called Jamai White to request $60 in crack,
but the battery on White’s phone apparently died mid-order and she was unable to
be certain the arrangement had been solidified. After waiting a while near the
doctor’s office to see if White got the message clearly, she tried Vincent Clark.
Clark responded affirmatively and offered to pick up Molly and bring her to
Brandywine Apartments.

According to Molly, Vincent Clark and a female picked her up in Clark’s car
and drove her to Brandywine Apartments Along the way, they engaged in casual
conversation. At one point Clark asked Molly if she had seen Jarnai White, who
had recently been in custody. Molly told Clark she had heard that White was out
ofjail, and Vincent Clark asked Molly to reach out to Jamai White and ask him to
bring the $60 in cocaine to the Brandywine Apartments.

We pause briefly here to note the obvious: Molly already had $60 in cocaine
that she was procuring from Vincent Clark. She had no more money and did not

want another $60 in cocaine from Jamai White. According to Molly’s subsequent

statements, she knew Clark and White were acquainted and assumed (incorrectly)
that Clark simply wanted to see White to say hello. She did not question why
Clark wanted her to order drugs from White, an odd request indeed given Clark’s
status as a drug dealer himself She accepted uncritically why Clark wanted her to
engage in this ruse with White, and obliged Clark anyway.

lt was a fateful error. When Molly and Vincent Clark got to the Brandywine
Apartments, she still had not heard back from Jamai White with his dead phone
battery. Clark left, asking Molly to get in touch with him if and when Jamai White
contacted her. Martin came out of his apartment, paid Clark for the cocaine and
Martin and Molly proceeded into Martin’s apartment

Just a few minutes later, Jamai White phoned Molly and, as requested, she
asked White if he could still deliver the $60 worth of cocaine they had previously
discussed to her at the Brandywine Apartments. White agreed. Molly
immediately called Clark, who told her he was still in the parking lot and Clark
would see White when he arrived.

When White arrived at the apartment compleX, he pulled up in a pickup
truck that Molly did not immediately recognize She approached the truck to
confirm it was indeed White, at which point she realized Clark was approaching
the truck on foot. Clark fired multiple shots into the truck, hitting White and

causing his demise.

Exactly where Molly was as the shots were fired is not entirely clear, despite
numerous statements recounting the event. What is certain, however, is that she
was very quickly back in Martin’s apartment Clark had left for points unknown.
Within minutes of returning to the apartment, she got a phone call from Clark
threatening her life if she reported anything she had seen and directing her to get
rid of her phone. Molly quickly removed the SlM card from the phone and flushed
it down the toilet. She then put the phone between the cushions in Martin’s
apartment

Police swarmed the area and knocked on Martin’s door. She and Martin
avowed they knew nothing about what had happened in the parking lot, but it was
all a bit much for Molly. She walked away from the complex and, borrowing a
friend’s phone, she called her sister Michelle for a ride out of the area. Michelle
arrived shortly and quickly realized that Molly had been through an ordeal. Molly
gave Michelle a somewhat truncated version of what had happened, at which point
Michelle told Molly it was essential that she return to the scene and tell the police
what she knew.

Michelle and Molly flagged down one of the swarming County police
officers. The officer drove her to the police station and while doing so, switched
on an audio recorder. Thus, Molly gave her first recorded statement concerning

what had just happened. lt is beyond question that her mental state was one of

extreme agitation and her statement was disjointed, punctuated by frequent bursts
of “Oh my God.”

The County officer brought Molly to the police station where she gave her
second audio recorded statement to a detective. By then, and over the course of the
statement, she calmed down to the point that she was able to convey a fairly
consistent, coherent _ if not entirely logical - version of what happened.

After her interviews in December 2015, Molly Hoffman was sent home
while the investigation continued. lt is unknown whether and when Ms. Hoffman
relapsed into her drug addiction. What is known is that on August l6, 2016, Molly
died of a fatal dose of chemicals. We are told she succumbed to an opioid
analgesic called U-47700, which has a street name of “Pink,” a drug with 7.5 times
the potency of heroin.

After Molly Hoffman’s death, the police called her sister Michelle into the
police station to give a recorded statement concerning her conversation with Molly
in those moments after she picked up Molly on December 3, 2015 and before she
contacted the police a short time later. This statement can thus be called
“Statement l” because Molly made it closest to the event, or “Statement 3”
because it is the last one procured by the police.

The State correctly surmises that Molly’s death casts the admissibility of any

of her prior statements in doubt and has sought a ruling from the Court.

Arguments are pressed for the admissibility of all three, and they coalesce around
common themes: D.R.E. 803(1) (present sense impression) D.R.E. 803(2) (excited
utterance) and D.R.E. 807 (the residual exception). But the “elephant in the room”
as to all of them is Crawford v. Washingtonl and the Supreme Court’s
jurisprudence on the Confrontation Clause. For if a statement violates the
Confrontation Clause, it matters not that it may “fit” within a hearsay exception.
ANALYSIS
l. THE CONFRONTATION CLAUSE

This Court had occasion to consider the Confrontation Clause and the U.S
Supreme Court’s decision in Crawford v. Washington last year in our decision in
State v. Benson.2 ln that case, we were ruling on the admissibility of an autopsy
report prepared by a pathologist no longer available for trial. But we would do
well to recall the specific facts in Crawford.

Michael Crawford was arrested for stabbing Kenneth Lee. Michael and his
wife Sylvia were both brought to the police station and each gave statements that
generally coincided with the proposition that the stabbing occurred during a fight
over an allegation that Kenneth Lee had tried to rape Sylvia. By the time of trial,

Sylvia was “unavailable,” relying upon the state’s marital privilege law to decline

 

1 541 U.s. 36 (2004).

z 2015 WL 3539995, at *3 (Del. Super. June 2, 2015).

to give testimony against her husband. The state was permitted to play her
previously recorded statement, despite Michael’s hearsay objections

The Supreme Court announced a completely new formulation of
Confrontation Clause analysis. Justice Scalia, examining English common law
from the 17th Century, noted that the Constitution’s framers were particularly
concerned with trials predicated on affidavits and unsworn, out of court
declarations gathered by the government and not subject to cross examination
Ohio v. Roberts,3 which set the standard for Confrontation Clause admissibility
from 1980 until Crawford was decided in 2004, had always relied upon those
“indicia of reliability” of an out of court statement that would give the statement
“particular guarantees of trustworthiness” to overcome a Confrontation Clause
objection. Justice Scalia, in effectively overturning Roberts, pointed out that, for
example, in Crawford’s case itself, “reliability” had been 1) found in the trial
court, 2) not found in the Court of Appeals, and 3) found again in the Washington
Supreme Court. ln repudiating Rol)erts, the Court said, “The Roberts test allows a
jury to hear evidence, untested by the adversary process, based on a mere judicial
determination of reliability. lt thus replaces the constitutionally prescribed method

of assessing reliability with a wholly foreign one.”4 The “constitutionally

 

3 448 U.s. 56 (1980).

4 Crawford, 541 u.s. at 62.

prescribed method” to which he was referring was, of course, confrontation and
cross examination. As Justice Scalia put it, “The Clause thus reflects a judgment,
not only about the desirability of reliable evidence (a point on which there could be
little dissent), but about how reliability can best be determined.”5

Another significant Confrontation Clause opinion from the U.S. Supreme
Court bearing upon our analysis here is Davis v. Washington.6 Davis called for the
application of the principles laid down in Crawford in two specific contexts. ln
Davis, a domestic violence victim was on the phone with a 911 call taker,
describing an attack as it was ongoing. ln a companion case decided with it,
Hammon v. Ina’icma,7 a domestic violence victim gave a statement to the police in
her home when they arrived to investigate a report of domestic violence. While
originally telling police everything was fine, when separated from her husband at
the home, she gave statements used against him at trial. ln both cases, the
complaining witness did not testify and the defendants were convicted based upon
1) the 911 tape and 2) a police officer’s account of her statement to them

respectively.

 

51d. ar61.
6 547 U.s. 813 (2006).

7 ld.

The Supreme Court found the 911 call tape “nontestimonial” and the report
of the interview with Hammon “testimonial.” As such, one conviction was
affirmed and the other wasn’t. ln distinguishing the two cases, the Court attempted
to flesh out its definition of “testimonial” hearsay:

Statements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the

primary purpose of the interrogation is to enable police assistance to

meet an ongoing emergency. They are testimonial when the

circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.8

Since the term “primary purpose” was used consecutively in two sentences
describing the difference between the two types of testimony, this has come to be
called the “primary purpose” test. The primary purpose of the 911 call was to seek
police assistance and the primary purpose of much of the questioning was to
ascertain the presence of the suspect and whether he was armed and dangerous
Notably, the Court held that only those portions of the 911 call related to the
ongoing emergency were not testimonial and should be admitted and the defense
should seek redaction of those portions that were testimonial9

ln Hammon, the Court felt it had no difficulty ruling the statements

testimonial, as it was merely a logical extension of its Crawford holding. Even

 

8 Id. 31822.

91¢1. 31829.

though her husband was still on the scene at the residence, the Court found that
there was no emergency in progress, no immediate threat of harm to the
complainant, and police asked questions “primarily” to determine “what
happened” as opposed to “what is happening?” Crawford was thus virtually
indistinguishable from Hammon:

Both statements deliberately recounted, in response to police

questioning, how potentially criminal past events began and

progressed. And both took place some time after the events described

were over. Such statements under official interrogation are an obvious

substitute for live testimony, because they do precisely what a witness

does on direct examination; they are inherently testimonial.10

A case demonstrating just how messy determinations of what is
“testimonial” can get is Michigan v. Bryant, ll a case arising 7 years after Crawford
upset the Confrontation Clause apple cart. ln Bryant, a shooting victim was found
in a parking lot and told the police he had been shot by Bryant, at Bryant’s house,
before succumbing to his wounds His “excited utterance” was reiterated by a
police officer at Bryant’s trial and Bryant was convicted.

ln ruling on the case, the Supreme Court had to dig further into the question
of what an “ongoing emergency” is. While the 911 call in Davz's recited an active,

ongoing assault, in Bryant, the shooter was not on the scene, the victim had

obviously been shot, and had removed himself to the parking lot. Nonetheless, the

 

1°1¢1 a1830.

" 562 U.s. 344 (2011).

10

Court held that the victim’s statement to the police was not testimonial According
to the Court, the “primary purpose” test requires an objective determination
whether the purpose of the interrogation of the declarant was to enable police
assistance to deal with an ongoing emergency12

ln what we will call a “vigorous” dissent, Justice Scalia was wont to recall
that the statement by the shooting victim concerned a past event and there was no
evidence of any ongoing emergency and therefore, in his view, the majority
opinion was a major expansion of the limited permissible hearsay wrought by his
decisions in Davz's and Crawford and indeed, inconsistent with the ruling in
Hammon v. lndiana.

The Delaware Supreme Court has weighed in on Crawford in the context of
documentary proof admitted without an opportunity to cross examine, but that
issue takes us down a somewhat different path.13 ln Dixon v. State, we have the
Court affirming the admissibility of a 911 call in the context of a Crawford

objection.14 This is helpful, but adequately explained by Davis v. Washington. So

 

12 1a ar 378.

13 See Milligan v. State, 116 A.3d 1232, 1242 (Del. 2015) (Confrontation Clause did not require State to present live
testimony of each person who exercised custody or control over defendants blood sample, for purposes of
establishing chain of custody, in trial for DUI); see also Martin v. Stale, 60 A.3d 1100, 1108 (Del. 2013) (admission
of blood analysis report prepared and certified by laboratory manager Who did not perform or observe chemists
testing of defendants blood sample, which report certified that defendants blood tested positive for phencyclidine
(PCP), violated defendants right of confrontation, in trial for driving while under influence or with prohibited drug
content).

14 996 A.2d 1271 (2010).
1 1

these essential decisional tools must suffice for our analysis of the three subject
statements in light of Crawford.

2. MOLLY’S INTERVIEW WITH DETECTIVES AT THE
POLICE STATION IS “TESTIMONIAL.”

Of the three statements at issue here, the one that most clearly meets the
Crawford “definition” of a “testimonial” statement is the one given by Molly
Hoffman to Detective Reid at the County Police Headquarters, hours after the
events at the apartment complex. The “primary purpose” of the statement was to
memorialize Molly’s best recollection of what occurred and who did it. Were it
played into evidence against the defendant with no opportunity to cross examine
Molly, it has all of the hallmarks of the evils Justice Scalia conjured in Crawford
and Davis.

lndeed, while the State argues in its brief that the statement should be
admitted through the residual hearsay exception, because of its circumstantial
guarantees of trustworthiness even the State makes no argument that this
statement satisfies the “testimonial” hearsay bar under Crawford. The State can be
forgiven the failure to do so, because there is simply no more to say. The

statement is testimonial and cannot be admitted.

12

3. MOLLY’S STATEMENT TO HER SISTER, BEFORE
FLAGGING DOWN THE POLICE, IS NOT
“TESTIMONIAL.”

Just as surely as Molly’s statement to detectives at the station is testimonial,
her statement to Michelle is not. The “primary purpose” for making the statement
was essentially to download to her sister the flood of emotions she was feeling
immediately after witnessing a shocking event. Neither she nor her sister would
have had any inkling that it was important to utter a word with an eye to the
niceties of forensic evidence or criminal prosecution. Neither was employed by,
associated with, or even interested in seeing, anyone connected with law

enforcement This was not a “testimonial” statement

4. MOLLY’S STATEMENT TO THE PATROL OFFICER,
RECORDED BY THE OFFICER IN THE BACK SEAT OF
THE PATROL CAR ON THE WAY TO THE STATION, IS
“TESTIMONIAL.”

Of the three statements, the one sitting astride the two “clearly” opposed
extremes is the one she made to Officer Herrera. According to the papers, Officer
Herrera was the one that was flagged down by Molly and Michelle when they
conferred and concluded this was the appropriate course of action. The shooting
was quite over, the perpetrator had quite clearly fled the scene. Thus, any

argument that the statement “fits” into the “ongoing emergency” rubric of Davis is

strained at best.

13

Taking our direction from Michigan v. Bryant, with which this case shares
some similarities we consider the “primary purpose” of the statement lt is
intriguing here, because in Bryant, the “primary purpose” in the statement maker’s
making the statement was to get assistance for his gunshot wound, while the Court
ruled that the “primary purpose” in the statement recipient’s asking the questions -
the police - was to determine the immediacy of a present threat and the location of
any weapons lndeed, Justice Sotomoyor made specific reference to the gun
question in distinguishing the “primary purpose” of the questioning in Bryant from
the questioning in the domestic battery cases of Davis and Hammon that did not
involve a weapon.

Here, it must be conceded that turning on a tape recorder in a squad car
while driving a witness/ suspect to the police station was an inspired decision by an
alert patrol officer. Doing so preserved an important, detailed statement by a direct
eyewitness (and at that point, surely a potential suspect) in a murder that had
occurred within the past hour.

But unlike Bryant, Molly was not a gunshot victim in need of immediate
assistance. And the questions directed to her over what happened were virtually all
in the past tense - seeking to understand who the various actors were and how they

related to each other. After hearing the whole statement, it is difficult to call the

14

statement anything but one whose “primary purpose” was the historical
preservation of the testimony of Molly Hoffman.

The State asks the Court to consider the Delaware case of Urquhart v.
State,U to which we now turn.

Urquhart was a case in which a police officer, responding to a robbery at a
street corner store, approached a woman in the adjacent block who told the officer
that she had seen someone flee the area, driving a particular car with a particular
license plate number. The woman did not appear at trial and the State was
permitted to introduce her statement as an “excited utterance.” As to defendants
Crawford objection, the Supreme Court affirmed the trial court’s conclusion that
“the witness answered the officer voluntarily and did so to assist him in an ongoing
emergency ’rather than simply to learn what happened in the past.”’16

Of course, we recognize this “ongoing emergency” issue from its discussion
in the Supreme Court’s Michigan v. Bryant case. And this forces the Court to
consider the theoretical shortcomings of the majority opinion on Bryant, as so
eloquently pointed out by Justice Scalia in his dissent ln Bryant, the victim was
located in a parking lot, having driven himself there after being shot at another

location. While the majority found an “ongoing emergency” in the fact that an

armed gunman remained on the loose, the same may be said of any shooting until

 

15 2016 wL 768268 (Del. Feb. 26, 2016).

16 ld. ar *3 (quoting Davis, 547 U.s. at 822).
1 5

the said gunman is captured. lt strains credulity to conclude that the victim or
police in Bryant were under a current, ongoing, life threatening emergency when
police elicited statements from the shooting victim. lt must be concluded that
Bryant marks a decided expansion of the scope of the ongoing emergency
“exception” recognized by the Court in Davis v. Washington. But even as
expanded, the statements were made by a witness/victim while still on the scene _
or at least a scene - being administered first aid, not in the ambulance or at the
hospital.

Obviously, it is not for a trial court to pronounce a rule that statements made
at the crime scene when police first arrive and before the suspect is apprehended
will always qualify as “ongoing emergency/nontestimonial” statements But it does
seem that once the non-testifying witness has been removed from the crime scene
and is safely in a squad car on the way to the police station, it is simply incorrect to
conclude that an “emergency” within the meaning of Davis, or Bryant, or
Urquhart, still exists Thus, while Urquhart and Bryant both authorize the
admissibility of statements to police made at the crime scene shortly after their
arrival, neither sanction the statement here, made in a squad car on the way to the
station.

Having concluded that the only one of the three statements that “pass”

through the gauntlet of admissibility under post-Crawford Confrontation Clause

16

analysis, we will examine that remaining statement for admissibility under the

Delaware Rules of Evidence.

5. MOLLY’S STATEMENT TO HER SISTER SATISFIES THE
EXCITED UTTERANCE EXCEPTION TO THE HEARSAY
RULE.

We proceed on the assumption that the State will produce Michelle Hoffman
who will testify to the statements made by Molly to her in the few minutes from
when she picked up Molly in the parking lot until when they flagged down a patrol
officer and were separated.

Delaware Rule of Evidence Rule 803(2) provides that hearsay statements are
inadmissible except “a statement relating to a startling event or condition made
while the declarant was under the stress or excitement caused by the event or
condition.”

ln order to establish admissibility as an excited utterance, the following
elements must be shown: “(1) the excitement of the declarant must have been
precipitated by an event; (2) the statement being offered as evidence must have

been made during the time period while the excitement of the event was

continuing; and (3) the statement must be related to the startling event.’717 There is

 

17 Gannon v. State, 704 A.2d 272, 274 (Del. 1998).

17

no particular “contemporaneity” requirement, so long as the declarant remains
influenced by the excitement caused by the precipitating event18

Here, the Court has little difficulty concluding that Molly’s statement made
to her sister Michelle within minutes of being picked up were made “while the
declarant was under the stress or excitement caused by the event or condition.”
While the Court cannot admit her recorded statement to Officer Herrera made a
few minutes afterward in the patrol car, her voice is recorded and its mood and
manner of speech at that point can only be described as distraught That is
consistent with Michelle’s description of her sister’s condition when she met her in
the parking lot. Michelle acknowledged that while she has seen her sister under
the influence of drugs before, Molly’s behavior on the night in question was
clearly not the behavior of her sister when she is high, but rather behavior she had
never seen in her before. She was crying, panicked and scared, to the point that she
noticed Molly’s face was paler than her usual complexion.

While the defense takes the State to task regarding whether her later
statements are “excited utterances” or “present sense impressions,” it does little to

attack the question whether Molly’s statement to her sister meets the definition.

 

18 See e.g. Evans v. State, 2004 WL 1790191, at *2 (Del. 2004) (holding that two out-of-court statements were
properly admitted under the excited utterance exception even though the statements were made four hours and nine
hours after the shooting because the declarant was still under the stress of excitement caused by that event); Dixon v.
State, 996 A.2d 1271, 1276 (Del. 2010) (holding that 911 call made fifteen minutes after a shooting was made under
the stress of excitement and was properly admitted under excited utterance exception); Warren v. State, 774 A.2d
246, 253 (Del. 2001) (holding that 911 call to describe events that occurred over one hour before call was admissible
under excited utterance exception to hearsay rule).

18

Because the Court here rules that her other statements are inadmissible under
Crawford, the defense’s arguments concerning the Delaware Rules of Evidence as
to those statements are largely irrelevant Her statement to her sister clearly
satisfies Rule 803(2) as an “excited utterance” and may be admitted
CONCLUSION
For the foregoing reasons, the State’s Motion to Admit Out of Court
Statements is GRANTED in Part and DENIED in Part

IT IS SO ORDERED.

   

 

JLidge'learles E. B’ui`l'er~.

19

