Harris v. StateHarris v. State
- Reporters:
- , ,
- Before:
- Steele
Lead Opinion
BERGER, and JACOBS, Justices for the Majority:
Dover police officers detained Mark Harris 165 feet from the Bibleway Church, and then found a plastic “baggie” containing marijuana in his mouth. Harris asserts that the trial judge erroneously denied his motions for judgment of acquittal of Tampering with Evidence, and of Possession of a Controlled Substance within 800 feet of a Church. Because the police perceived and immediately retrieved the baggie, we REVERSE his ‘tampering conviction. Because LIDAR provided a reliable and trustworthy measurement of the distance to Bibleway, and Bibleway presumptively constitutes a “church, synagogue or other place of worship,” we AFFIRM his possession conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Harris placed a “baggie” of marijuana in his mouth.
Dover Police Officers Davis and Barrett observed a car, idling in a parking lot, with its headlights off and windows fogged. Harris and two other men occupied this car. The officers approached the car, and Davis tapped on the window and smelled marijuana when an occupant rolled down the window. The occupants denied having any marijuana, and the officers ordered them out of the car.
A third police officer, Corporal Connick, arrived on the scene. A search of the car revealed a warm, burnt, moist cigarette that the officers suspected — but never confirmed — contained marijuana.
During the search, Connick spoke with Harris. He observed that Harris’s speech was muffled, and saw a small piece of plastic in Harris’s mouth. Connick waited to catch the other officers’ attention, grabbed Harris, and instructed him to spit out the plastic object. Harris did not immediately comply, but eventually spat out a small plastic bag containing 0.55 grams of marijuana.
The police measured the distance from the car to Bibleway.
Following the search, Davis noticed the Bibleway Temple Institutional Church of God and Christ located across the street. Davis requested that Stubbs measure the exact distance from the car to Bibleway with a LIDAR. Stubbs measured 165 feet from the car to Bibleway.
At trial, the trial judge overruled Harris’s objection to the State’s introducing the LIDAR measurement into evidence. Stubbs testified about his qualifications to use the LIDAR device, and that he measured the distance by standing near the passenger’s side and “shooting” the distance. The log book confirmed he had calibrated that same LIDAR earlier in the day. External tests confirmed the accuracy and calibration of that LIDAR device.
Bibleway’s sign read “Temple Institutional Church of God and Christ.”
Davis saw that the building across the street from the parking lot had a sign that read “Bibleway Temple Institutional Church of God and Christ.” He also testified at trial that Bibleway was a church, and that he had gone into Bibleway while responding to an earlier complaint.
STANDARDS OF REVIEW
We review the trial judge’s denial of Harris’s motions for a judgment of acquittal de novo to determine whether, considering the evidence in the light most favorable to the State, any rational trier of fact could have found Harris guilty, beyond a reasonable doubt, of the essential elements
We review the trial judge’s evidentiary rulings for abuse of discretion.2
ANALYSIS
A. Tampering with Evidence
1. Police immediately retrieved the evidence from Harris’s mouth.
In Pennewell v. State, we held that the defendant did not tamper with evidence, because the drugs were “visible and immediately retrievable.”4 Although Pennewell attempted to hide drugs from an approaching police officer, we held that he failed to commit the crime of Tampering with Evidence.5
Here, Connick saw plastic in Harris’s mouth. Connick obviously believed that the plastic may have been a baggie con-taming contraband. Harris did not immediately spit out the baggie when the police officers told him to do so, nor did he successfully partially conceal the item for more than a brief moment. Pennewell does not require the police to retrieve potential evidence immediately. Rather, it requires “immediately retrievable” evidence. This rule makes sense, because it focuses on whether the defendant actually completed the required act of suppressing evidence.6 This rule in Pennewell also comports with our earlier decisions.
The exception, as we explained in Pen-newell, applied to “abandonment,” which results from failed “concealment.” Whether Harris attempted to “destroy” the evidence does not materially affect our application of Pennewell. Rather, we may consider whether the evidence was “visible and immediately retrievable” to determine whether Harris failed to “destroy” — and by actually doing so, “suppress” the evidence. If he failed to suppress the evidence, then he did not meet the
In Pennewell, we discussed cases where the police could immediately retrieve evidence that the defendant attempted to suppress. We noted that police could immediately retrieve evidence from on top of
In Hardy v. State, when upholding a
Delaware law punishes attempted crimes in a manner that corresponds to the underlying offense’s severity.
The Delaware Criminal Code Commentary to
Because Connick saw the baggie and “immediately retriev[ed]” it from Harris’s mouth, Harris did not suppress evidence within the meaning of to
2. Police must perceive — visually, aurally, or otherwise — the evidence.
Although Connick testified to seeing the evidence in Harris’s mouth, he also testified to hearing something muffle Harris’s voice. Whether he initially detected the evidence through visual or auditory perception should not be controlling. Because both hearing the baggie’s muffling effect and seeing the plastic in Harris’s mouth gave Connick notice of Harris’s attempt to suppress evidence, either perception would have frustrated Harris’s requisite completion of the act of suppression. Pennewell states that a defendant has not committed tampering, when the evidence is “visible,” but the rationale underlying that usage requires only perception — either visual, auditory, or both.
In Pennewell, we cited Anderson v. State, a case where we upheld a tampering conviction.16 In Anderson, the police deduced from a toilet’s clogging that the resident suspected drug dealer might have flushed drugs. The police disassembled the toilet, and found a purse with a plastic bag of cocaine. Although the police officers immediately retrieved the evidence, they did not perceive Anderson’s act of suppression. Rather, the police officers relied on Anderson’s girlfriend’s statement that something might have clogged the toilet. Anderson had already completed his act of suppression without police detection. Harris, in contrast, still held visible evidence in his mouth. Consequently, the police contemporaneously perceived his attempted suppression. Pennewell controls Harris’s conduct, but not Anderson’s.
3. The drugs must be immediately retrievable.
We also noted that, “[i]f, instead, Penne-well had been standing by a water drain and managed to drop the drugs into the drain, it is likely that the result would be different.”17 That is, Pennewell likely would have committed the crime of Tampering with Evidence had the drugs fallen into the water drain. Just as police may immediately retrieve evidence from an elevated garage roof,18 they may also immediately retrieve evidence from a subterranean water drain. Our comment about water drains is based on the solubility of drugs and the movement by water throughout a labyrinthine drainage system. If a police officer had to climb the same ladder to mount a roof or descend into a drain, and the evidence remained exactly where and how it initially fell onto both surfaces, the result should not differ. If, on the other hand, some drugs dispersed or dissolved into the water, or the
4. Police may perceive either the drugs, or the act of suppression.
Here, we also parse our statement in Pennewell that the State could not prove tampering, because the drugs were “visible and immediately retrievable.” The police must be able to retrieve the evidence immediately, as described above. A police officer may frustrate a defendant’s attempt to suppress evidence, by perceiving the evidence or the defendant during the act of suppression.
In Delgado, a case where police officers saw a defendant shaking19 and making a throwing motion during pursuit20 before recovering discarded drugs, the defendant did not commit the crime of tampering. In Pennewell, we reversed a tampering conviction, where a police officer saw drugs fall, although he did not see the defendant make a throwing motion.21 Whether the police perceived the evidence or perceived the defendant’s movement during the act of suppression did not affect either the police’s recovery of the evidence, or the court’s decision.
The rule we adopt here also comports with cases where this Court has affirmed tampering convictions. In Fletcher v. State,22 we affirmed the defendant’s conviction when he hid evidence from police in a car’s glove compartment and side door pocket. After pulling Fletcher over for a traffic infraction, the police officer did not see him hide evidence, but discovered it after searching the car. Although the evidence was “immediately retrievable,” the police officer did not perceive the evidence or the defendant, during the act of suppression.
Fletcher highlights an important distinction between the facts in Anderson and in this case. In Anderson, the police officers perceived a potential concealment after the defendant had completed his act of suppression — akin to the facts in Fletcher. Anderson hoped that the police would fail to discover a purse, and his suppression was completed: nothing remained for him to do to prevent prosecutors from using the evidence in an official proceeding. Here, however, Harris still had the drugs in his mouth so that the inchoate suppression was still in progress when Connick contemporaneously perceived the bag of marijuana in Harris’s mouth. Harris could not leave the evidence in his mouth but would need to remove and conceal it or, as the indictment suggests, “swallow” the plastic baggie and its contents in order to meet the suppression element of
5. Items constitute ‘evidence,’ for tampering, after the police control the item.
In Pennewell, we expressly adopted “the reasoning of the Delgado and Vigue courts.”23 Although we stated a practical and useful rule to determine abandonment, we declined to draw the precise boundaries of evidence that falls within the scope of
Prosecutors and the courts should avoid leveraging misdemeanor drug possession prosecutions with additional, felony tampering penalties. We have noted that
We also must define more precisely what is meant by the defendant’s belief regarding evidence that is “about to be used or produced.”29 “About to” infers procedural immediacy — not temporal immediacy. The statute applies to tampering with evidence related to any crime or official proceeding. Thus,
The courts in Vigue and Fuqua observed this overinclusive theory whereby “a defendant would be required to have the cocaine in plain view in order to avoid committing this crime [of Tampering with Evidence].... To avoid this result, the Fuqua court ruled that, as applied to pos-sessory offenses, the statute should be construed to apply only to completed crimes.”30 The Fuqua approach draws a clear line for prosecutors and defendants, maintains felonious punishment for the serious crime of intentionally undermining evidence in an official proceeding, and prevents substantial overlap of misdemeanor possession and activity that constitutes felony tampering. Because a defendant completes the illegal act of possession as soon as he obtains the contraband, Fuqua is better understood as precluding a tampering conviction until the underlying crime ends.
Although the Fuqua court drew a necessary line that separates mere ‘items’ from ‘evidence’ for
An “item” also becomes ‘evidence’ for the purpose of
In Fletcher, the police took constructive control of Fletcher’s car and its contents, when they performed a traffic stop.33 The testimony supporting Fletcher’s concealment after the stop and following a substantiated belief that the police were “about to” produce the contraband in his car at trial, is consistent with our analysis here. Significantly, Fletcher’s driver testified that Fletcher did not conceal the contraband until after the police stopped and took constructive control of their car. Had he acted before the traffic stop — that is, without a substantiated belief of procedural immediacy — Fletcher would have merely concealed an “item,” not “evidence.”
Before the police take control of the item and make it ‘evidence’ for the purpose of
The General Assembly has criminalized certain acts of possession and use; the tampering statute does not aggravate those crimes when committed outside of the State’s vigilance.
B. Possession of a Controlled Substance Within 300 Feet of a Church
1. Harris possessed marijuana within 300 feet of a place of worship.
The jury also convicted Harris of Possession of a Controlled Substance within 300 feet of a Church. He appeals that conviction on two grounds. First, he claims that the trial judge abused his discretion by admitting the LIDAR distance
a. Admission of LIDAR distance measurement.
Harris contends the LIDAR device provides unreliable and untrustworthy distance measurements. Delaware courts have admitted LIDAR distance and speed measurements, after the State offers a trained and certified operator’s testimony, and a proper foundation for the testimony.36 In Jarwan, the trial judge ruled, based on expert testimony, that LIDAR devices provide “admissible, relevant, and scientifically reliable” speed measurements.37 Because LIDAR calculates admissible speed measurements, based upon its distance measurement to the target, it follows that a trial judge could reasonably rely upon and admit LIDAR distance measurements.38 At trial, Stubbs testified to his qualification and operation, and the device’s proper calibration and functioning. The trial judge did not abuse his discretion by admitting the LIDAR distance measurement into evidence.
b. Bibleway is a church, synagogue, or other place of worship.
Harris also contends the trial judge erroneously denied his motion for judgment of acquittal of Possession of a Controlled Substance within 300 feet of a Church, because the State failed to establish that Bibleway meets the statutory requirement of a “church, synagogue or other place of worship.” Harris cites to Florida decisions where the statute required the State to prove that the ‘church’ conducted regular religious activities.39 Unlike Florida law, however, Delaware law omits statutory language requiring the ‘church’ to regularly conduct religious services. It criminalizes possession of controlled substances “within 300 feet of the boundaries ... of [any] church, synagogue or other place of worship.”40
At trial, Davis confirmed the nearby building was a ‘church’ and stated that he had been inside the church to investigate a previous complaint. The building in question displayed a sign that read “Bibleway Temple Institutional Church of God and Christ.” The State presented sufficient evidence at trial for a rational trier of fact to conclude that the building in question was a ‘church’ as contemplated by
CONCLUSION
For the foregoing reasons, we REVERSE in part and AFFIRM in part the
Notes
. Pennewell v. State, 977 A.2d 800, 801 (Del.2009).
. Zimmerman v. State, 693 A.2d 311, 313 (Del.1997).
. “A person is guilty of tampering with physical evidence when:
(1) Intending that it be used or introduced in an official proceeding or a prospective official proceeding the person:
a. Knowingly makes, devises, alters or prepares false physical evidence; or
b. Produces or offers false physical evidence at a proceeding, knowing it to be false; or
(2) Believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent its production or use, the person suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.
Tampering with physical evidence is a class G felony.” (emphasis added).
. 977 A.2d 800, 803 (Del.2009).
. Id.
. Id. at 802. “But the fact that he wanted to dispose of the drugs, does not mean that he was tampering with evidence.”
. Commonwealth v. Delgado, 544 Pa. 591, 679 A.2d 223 (1996).
. Vigue v. State, 987 P.2d 204 (Ak.Ct.App.1999).
. Pennewell, 977 A.2d at 801.
. Hardy v. State, 2007 WL 2696719, at *1 (Del.Supr. May 18, 2007).
. Id.
.
. Hardy v. State, C.A. No. 502, 2006, at 36 (Del.Super. June 28, 2006) (TRANSCRIPT).
.
. Commentary to
. Pennewell, 977 A.2d at 803 (citing 2004 WL 744188 (Del.Supr. Apr.5, 2004)).
. Pennewell, 977 A.2d at 803.
. Delgado, 679 A.2d at 225.
. Vigue, 987 P.2d at 205.
. Delgado, 679 A.2d at 225.
. Pennewell, 977 A.2d at 801.
. 2005 WL 646841 (Del.Supr. Mar. 16, 2005).
. Id.
. State v. Fuqua, 303 N.J.Super. 40, 696 A.2d 44 (A.D.1997).
. Vigue, 987 P.2d at 209, 211 (quoting Fuqua, 696 A.2d at 46-47) (emphasis in original).
. Pennewell, 977 A.2d at 801.
.
.
. Vigue, 987 P.2d at 209 (quoting Fuqua, 696 A.2d at 47) (emphasis in original).
. 2007 WL 2123781, at *2 (Del.Supr. July 25, 2007).
. 2004 WL 744188, at *1.
. Fletcher, 2005 WL 646841, at :T.
. Jones v. State, 940 A.2d 1, 9 (Del.2007).
. Weber v. State, 971 A.2d 135, 155 (Del.2009).
. State v. Jarwan, 2000 WL 33113846, at *3 (Del.Super.Dec. 8, 2000).
. Id. at *3.
. Id. at *1 (explaining that “LIDAR ... uses laser pulses to measure distance by beaming a series of laser pulses at a target. When a laser pulse strikes the target, a portion of the light is reflected back and detected. Because the speed of light is a known constant, the device is able to calculate the distance between the device and the target by measuring the time it takes for a laser pulse to travel to the target and back.”).
. Hill v. State, 830 So.2d 876, 877 (Fla. 5th DCA 2002); Wallace v. State, 814 So.2d 1255, 1257 (Fla. 5th DCA 2002).
.
Concurrence Opinion
concurring, with whom HOLLAND, Justice, joins:
I concur with the Majority in the reversal of Harris’ Tampering with Physical Evidence conviction, but do so on a narrower basis.
At trial, the State did not prove that physical evidence was suppressed by an act of destruction. Instead, the prosecutor argued for conviction under a concealment theory, stating “[Harris] was trying to conceal it, to swallow, so it could never be used against him.” This argument acknowledged, consistent with the evidence, that when Harris placed the physical evidence into his mouth, he did not destroy either the baggie or its contents. Without proof of an act of destruction, Harris could not be convicted of the offense charged. Harris’ motion for a judgment of acquittal on that offense should have been granted.
The Majority goes farther than necessary to decide this appeal and adopts the rationale of the New Jersey Superior Court in State v. Fuqua44 to hold that, for possessory offenses,
When interpreting a statute, our role is to determine and give effect to the intent of the General Assembly.45 “In the absence of any ambiguity, the language of the statute must be regarded as conclusive of the General Assembly’s intent.”46 “Under Delaware law, a statute is ambiguous if: first, it is reasonably susceptible to
Contraband can satisfy the General Assembly’s definition of physical evidence. “ ‘Physical evidence’ means any article, object, document, record or other thing of physical substance which is or is about to be produced or used as evidence in an official proceeding.”48 Whether a defendant has completed a possessory offense is irrelevant to the application of this definition. There need not be an actual official proceeding pending provided an official proceeding could readily have been contemplated under the circumstances of the case.49
Although the General Assembly could certainly provide an exception to
Nor is there an ambiguity in
I respectfully disagree with the Majority’s focus on whether the police have control or constructive control over the contraband to transform the “item” into “evidence.” In my view, the appropriate inquiry involves three elements which the State is required to prove beyond a reasonable doubt:
First, that on or about the date specified in the Indictment, the defendant suppressed physical evidence by an act of concealment, alteration, or destruction, or by employing force, intimidation or deception against any person;
Second, that the defendant did so believing that such physical evidence was about to be produced or used in an official proceeding or a prospective official proceeding; and
Third, that the defendant did so intending to prevent such production or use.55
Our precedents have not focused on whether a completed possessory offense was involved. In Pennewell v. State we distinguished the cases of Fletcher v. State,56 Hardy v. State57 Anderson v. State58 and Hunter v. State59 simply because “[e]ach of these fact patterns involved efforts to hide, or prevent discovery of, the evidence.”60 In Pennewell, we vacated the tampering with physical evidence conviction and held that the defendant dropping his drugs to the ground “did not amount to concealment because he did not attempt to hide the drugs or prevent their discovery. Rather, the defendant abandoned the drugs.”61 Abandonment is not criminalized by
Turning to Harris’ conviction on the charge of Possession of a Controlled Substance within 300 feet of a church, I agree with the Majority that there was no abuse of discretion in admitting evidence of the LIDAR distance measurement. The evidence was sufficient to enable a jury to find Harris guilty of the charge beyond a reasonable doubt.
For these reasons, I respectfully concur.
.
(2) Believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent its production or use, the person suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.
. See Keller v. State, 425 A.2d 152, 155 (Del.1981).
. Delaware follows the party autonomy rule which requires that “[t]he trial judge should not give an instruction on an uncharged lesser offense if neither side requests such an instruction because to do so would ‘interfere with the trial strategies of the parties.’ ” State v. Brower, 971 A.2d 102, 107 (Del.2009) (quoting State v. Cox, 851 A.2d 1269, 1272 (Del.2003)).
. State v. Fuqua, 303 N.J.Super. 40, 696 A.2d 44 (A.D., 1997).
. Ross v. State, 990 A.2d 424, 2010 WL 625829 (Del. Feb. 23, 2010).
. State v. Cooper, 575 A.2d 1074, 1076 (Del.1990).
. Leatherbury v. Greenspun, 939 A.2d 1284, 1288 (Del.2007).
.
. See, e.g., People v. Nicholas, 70 A.D.2d 804, 417 N.Y.S.2d 495 (1979) (“The moving of a body prior to an official proceeding being begun constituted tampering with physical evidence” because “a prospective official proceeding could readily be contemplated.”).
.
A person is guilty of an attempt to commit a crime if the person:
(1) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as the person believes them to be; or
(2) Intentionally does or omits to do anything which, under the circumstances as the person believes them to be, is a substantial step in a course of conduct planned to culminate in the commission of the crime by the person.
. See
.
. Commentary, Delaware Criminal Code
. Id. Other offenses relating to judicial proceedings which are proscribed as felonies regardless of whether predicate criminal con duct is a misdemeanor include: Bribing a witness,
. See New York State Unified Court System, Tampering with Physical Evidence, http:// www.courts.state.ny.us/cji/2-PenalLaw/215/ 215-40(2).pdf (last visited 4/1/10). In Chance v. State, 685 A.2d 351, 355 (Del.1996), we recognized that the Delaware Criminal Code is primarily based upon the New York Penal Code and the Model Penal Code.
. 2005 WL 646841 (Del. Mar. 16, 2005).
. 2007 WL 2696719 (Del. May 18, 2007).
. 2004 WL 744188 (Del. Apr. 5, 2004).
. 815 A.2d 730 (Del.2002).
. 977 A.2d 800, 802 (Del.2009).
. Id. at 801.
. Unlike this case, the Indictment in Hardy charged the defendant with Tampering with Physical Evidence by “an act of concealment alteration or destruction.” (emphasis added).
. See, e.g., State v. Mendez, 345 N.J.Super. 498, 785 A.2d 945, 954 (A.D.2001) (holding a bag of suspected cocaine outside the window of a moving car during a police chase, allowing the substance to dissipate into the air is akin to “swallowing or flushing drugs down a toilet” and supports a conviction for Tampering with Physical Evidence); Lewis v. State, 56 S.W.3d 617 (Tex.Ct.App.) (swallowing of contraband during a traffic stop supports a conviction for Tampering with Physical Evidence); State v. Logan, 973 S.W.2d 279 (Tenn.Crim.App.1998) (placing bags containing cocaine in a toilet supports a conviction for Tampering with Physical Evidence); Commonwealth v. Morales, 447 Pa.Super. 491, 669 A.2d 1003 (1996) (swallowing contraband after a policeman identified himself and ordered the defendant to “put your hand on your head” supports a conviction for Tampering with Physical Evidence); Commonwealth v. Govens, 429 Pa.Super. 464, 632 A.2d 1316 (1993) (flushing cocaine down a toilet after police announced their presence supports a conviction for Tampering with Physical Evidence); Frayer v. People, 684 P.2d 927 (Colo.1984) (breaking a bottle of narcotic cough syrup during a struggle with police and in violation of the police order to “stop” supports a conviction for Tampering with Physical Evidence).
. In re Adoption of Swanson, 623 A.2d 1095, 1099 (Del.1993).