185 A.3d 1
Del.2018Background
- Early-August 2015 shooting: Gerald Walker was shot; initially could not identify assailants but later identified David Buckham as the shooter. No gun or shell casings recovered.
- Imean Waters gave a statement to police implicating Buckham, but at trial Waters repeatedly recanted, contradicted prior statements, and appeared unreliable.
- During Waters’ direct examination the prosecutor asked for a recess so Waters could consult his counsel mid-testimony; the court allowed the conference but prohibited cross-examination into the content of that consultation.
- Buckham’s phone was seized upon arrest six weeks after the shooting; police obtained a warrant to search “any and all stored data” on the phone—ostensibly to seek GPS data that might locate the gun—but recovered Facebook messages that were introduced at trial.
- Buckham was convicted of first-degree assault and other charges; he appealed, arguing (1) the mid-testimony counsel consultation and the bar on cross-examining about it were error and violated his confrontation rights, and (2) the cell‑phone search warrant was overbroad and lacked the necessary nexus/particularity so the Facebook messages should have been suppressed.
Issues
| Issue | Buckham's Argument | State's Argument | Held |
|---|---|---|---|
| May the court allow a mid-testimony recess for a prosecution witness to consult counsel and bar inquiry into the consultation? | Trial judge erred by permitting the prosecutor-initiated mid-testimony consultation and then preventing cross-examination about it; this prejudiced Buckham. | Trial court has broad discretion to manage testimony; recess was warranted to permit counsel to advise witness about perjury/cooperation risks; error (if any) was harmless. | Court found allowing the recess and barring inquiry reversible error; State conceded the recess was error and the record did not show harmlessness. |
| Did sealing the mid-testimony consultation and barring cross-examination violate Buckham’s confrontation rights? | The attorney-client privilege should not defeat the defendant’s Confrontation Clause rights when a mid-testimony consultation occurs. | Attorney-client privilege protected the consultation content; trial court balanced interests. | Court declined to resolve the constitutional privilege-vs-confrontation conflict because it reversed on other grounds (recess was reversible error). |
| Was the search warrant for Buckham’s phone supported by probable cause and sufficiently particular (or alternatively plain error to admit evidence)? | Warrant lacked sufficient nexus to the shooting and was a general, overbroad electronic-device warrant; Facebook messages should be suppressed. | Warrant affidavit gave a substantial basis: phone was on Buckham, GPS data might locate his whereabouts and the gun, plus other contextual facts. | Warrant was sustained by trial court on GPS nexus theory, but appellate court held the warrant was plainly overbroad and insufficiently particular given the limited probable cause; admitting Facebook messages was plain error. |
Key Cases Cited
- Geders v. United States, 425 U.S. 80 (U.S. 1976) (discussing sequestration and limits on mid-testimony consultation and cross-examination)
- Webb v. State, 663 A.2d 452 (Del. 1995) (approving limited mid-cross-examination consultation procedure and limits on coaching)
- Wheeler v. State, 135 A.3d 282 (Del. 2016) (warrants for electronic devices must be particular and no broader than the supporting probable cause)
- Riley v. California, 134 S. Ct. 2473 (U.S. 2014) (recognizing the substantial privacy interests implicated by cell-phone searches)
- Coolidge v. New Hampshire, 403 U.S. 443 (U.S. 1971) (historical discussion of the evils of general warrants and the need for particularity)