            IN THE SUPREME COURT OF THE STATE OF DELAWARE

SHAQUILLE CAMPBELL,                             §
                                                §      No. 474, 2016
       Defendant Below,                         §
       Appellant,                               §
                                                §      Court Below: Superior Court
       v.                                       §      of the State of Delaware
                                                §
STATE OF DELAWARE,                              §      Cr. ID. No. 1507010845
                                                §
       Plaintiff Below,                         §
       Appellee.                                §

                             Submitted: May 3, 2017
                             Decided:   May 8, 2017

Before STRINE, Chief Justice; VAUGHN and SEITZ, Justices.

                                         ORDER

       (1)    The appellant, Shaquille Campbell, was found guilty by a jury of

Attempted Murder in the First Degree, two counts of Possession of a Deadly Weapon

During the Commission of a Felony, Reckless Endangering in the First Degree, and

Possession of a Firearm by a Person Prohibited.1 In this appeal, Campbell raises two

issues. First, Campbell argues that the State impermissibly asked a police officer

witness five times during two separate exchanges whether statements that an

eyewitness, Waynetta Wilson, and the victim, Brian Bey, gave to the police were



1
 After trial, the State entered a nolle prosequi on the Reckless Endangering in the First Degree
charge and related Possession of a Deadly Weapon During the Commission of a Felony charge.
App. to Appellant’s Opening Br. at A006 (Docket).
consistent with surveillance footage of the incident and their testimony during trial.2

Campbell argues that this constituted improper vouching for Wilson and Bey by the

police officer witness. But, the State asked these questions five times, and Campbell

objected to only one of the police officer witness’s responses.3 Thus, we review for

plain error, and we find none.4 However inartful and irrelevant the questions were,

the Superior Court’s failure to intervene over what were innocuous questions given

the total context within which they were asked is understandable, and there is no

conceivable prejudice given the non-inflammatory nature of the questions and the

overwhelming evidence against Campbell, including identifications of Campbell by

Wilson and Bey and Campbell’s own admission that he was in the area before the

shooting and had a confrontation with Wilson’s cousin. Campbell objected to one

response by the police officer witness—that Bey’s statement to the police five days

after the shooting was consistent with what the police officer witness observed on


2
  Although Campbell does not raise this on appeal, during the second exchange, the police officer
witness also testified that Bey’s statement the night of the shooting that “it all happened so fast”
was inconsistent with what he told the police five days later. Id. at A095 (Testimony of Det.
Ricardo Flores, WPD).
3
  Without objection from Campbell, the police officer witness testified that: i) Bey’s and Wilson’s
trial testimony was “very consistent” with what they told him at the police station; ii) Bey’s
statement at the police station before reviewing the surveillance footage was “very consistent”
with his trial testimony; iii) Bey’s statement at the police station, as compared to the surveillance
footage, was “[c]onsistent as if he was narrating the video”; and iv) Wilson’s statement at the
police station was “very consistent” with the surveillance footage. Id. at A084, A095 (Testimony
of Det. Ricardo Flores, WPD).
4
  Supr. Ct. R. 8; Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (“Under the plain error
standard of review, the error complained of must be so clearly prejudicial to substantial rights as
to jeopardize the fairness and integrity of the trial process.”).

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the surveillance footage—on relevancy grounds, which the Superior Court

overruled. Because that objection was based on relevancy, not improper vouching,

we review for plain error.5 And, again, there is no conceivable prejudice that would

justify reversal.

       (2)     Second, Campbell argues that the Superior Court erred when it deferred

ruling on his motion for judgment of acquittal of Reckless Endangering in the First

Degree and one count of Possession of a Deadly Weapon During the Commission

of a Felony at the conclusion of the State’s case, and, therefore, forced Campbell to

elect whether to testify without knowing whether the Superior Court would grant his

motion. Campbell argues that because he presented his motion at the close of the

State’s case, the Superior Court was required to rule on it under Superior Court

Criminal Rule 29(a).6 This argument is presented in a confusing way given the

record. The sequence of events was as follows.7 After the State rested, the jury was

dismissed for lunch. The Superior Court then asked defense counsel “what can I



5
  See Weedon v. State, 647 A.2d 1078, 1082–83 (Del. 1994) (“A party making an objection to the
introduction of evidence must specify a proper basis for exclusion and a failure to do so constitutes
waiver for appellate review purposes. Even where an objection is raised, if the argument for
exclusion on appeal is not the one raised at trial, absent plain error, the new ground is not properly
before the reviewing court.” (citations omitted)).
6
  Super. Ct. Crim. R. 29(a) (“The court on motion of a defendant . . . shall order the entry of
judgment of acquittal of one or more offenses charged in the indictment or information after the
evidence on either side is closed if the evidence is insufficient to sustain a conviction of such
offense or offenses.”).
7
  The relevant portions of the transcript detailing these events are located in App. to Appellant’s
Opening Br. at A097–A100 (Motion for Judgment of Acquittal).

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expect this afternoon from the defendant?”8       After conferring with Campbell,

defense counsel replied, “[y]our honor, expect us to rest. As of now, Mr. Campbell

does not want to testify.”9 The Superior Court then told defense counsel: “Okay. He

can still – you have lunchtime to change your mind. What I think you’re telling me

is that we are then going to get to closing arguments when the jury comes back from

lunch?”10 Defense counsel and the State both replied “[c]orrect.”11 A lunch recess

then occurred. After the parties returned from lunch, but before the jury was brought

back in, the Superior Court asked Campbell if he was going to testify or remain

silent. Campbell responded that he would remain silent. Defense counsel then

presented the motion for judgment of acquittal. The Superior Court decided to defer

ruling and let the charges go to the jury. When the jury was brought back in, the

Superior Court asked the defense if it wished to present any evidence so the jury

would understand that Campbell was not going to testify and that the evidentiary

record was closed. Defense counsel replied “[n]o. The defense rests.”12 That is, the

trial judge made sure that the defense’s prior decision to rest was memorialized on

the record in the jury’s presence.




8
  Id. at A097.
9
  Id. (emphasis added).
10
   Id. (emphasis added).
11
   Id. (emphasis added).
12
   Id. at A100.

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       (3)     In alleging that the Superior Court violated Rule 29(a) by deferring its

ruling on the motion, Campbell is arguably taking the record out of context. It is

quite possible that all parties, including the trial judge, understood that by indicating

that Campbell would not testify, the defense in fact intended to rest and present no

evidence at all. Thus, when the defense moved for judgment of acquittal after

Campbell stated that he would not testify, the trial judge may have assumed that the

evidence was closed and therefore thought it was within his discretion to defer ruling

on the motion under Rule 29(b).13 But, as a formal matter, all that Campbell said

before the motion for judgment of acquittal was made was that he was not going to

testify. Although the trial judge (and in fact, all parties) may have assumed that

meant that the defense would not present any evidence and the evidence was in fact

closed, that is not what the transcript literally says. And, the State does not argue

that Rule 29(b) applies here. Thus, it may be that Campbell has a technical point

that the motion should have been ruled on at the time it was presented. Even if we

accept this point, we review for plain error because Campbell did not object when

the Superior Court decided to defer ruling, and we find none.14 The argument on

appeal is that, by deferring its ruling, the Superior Court impermissibly burdened


13
   Super. Ct. Crim. R. 29(b) (“If a motion for judgment of acquittal is made at the close of all the
evidence, the court may reserve decision on the motion, submit the case to the jury and decide the
motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged
without having returned a verdict.”).
14
   See supra note 4.

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Campbell’s decision whether or not to testify. We are not sure how this argument

can be fairly made given that the defense moved for judgment of acquittal after

Campbell had already decided he would not testify. It contradicts the record and is

unfair to the trial judge for Campbell to argue that his decision not to testify was

influenced by the Superior Court’s decision to defer ruling on the motion. In any

event, that argument does not make any sense given that, if the motion was granted,

Campbell still would have been exposed to conviction for Attempted Murder in the

First Degree, and he had every rational incentive to testify if he thought that was

useful to his defense.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                      BY THE COURT:
                                      /s/ Leo E. Strine, Jr.
                                      Chief Justice




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