Lloyd v. StateLloyd v. State
Upon appeal from the Superior Court of the State of Delaware: AFFIRMED.
Megan J. Davies, Esquire (argued), Haddonfield, New Jersey; Jan A. T. van Amerongen, Jr., Esquire, Office of Conflicts Counsel, Wilmington, Delaware, for Defendant Below, Appellant Eric C. Lloyd.
Sean P. Lugg, Esquire (argued), Delaware Department of Justice, Wilmington, Delaware, for Plaintiff Below, Appellee State of Delaware.
A Superior Court jury convicted Eric Lloyd of six felonies stemming from his involvement in a Wilmington drug dealing enterprise. The Superior Court sentenced Lloyd to an aggregate of thirty years of incarceration without the possibility of early release. On appeal, Lloyd challenges his convictions and sentence. First, Lloyd contends that the trial court erred when it denied his motion to sever his case from that of co-defendant Dwayne White. Second, Lloyd argues that the trial court erred when it denied his motion for a mistrial after an eyewitness to a shooting misidentified Lloyd as the gunman. In Lloyd‘s third and fourth claims of error, he argues that the trial court should not have admitted gun evidence seized from a co-defendant‘s apartment and rap music videos created by other enterprise members. Fifth, Lloyd argues that the trial court erred by allowing testimony from Lloyd‘s former attorney‘s secretary about a drug transaction. And finally, Lloyd contends that the trial court violated his rights under the Eighth Amendment by imposing consecutive sentences, resulting in thirty years of incarceration, without the option for early release. For the reasons discussed below, we find Lloyd‘s claims are without merit and affirm the judgment of the Superior Court.
I.
This Court has already affirmed the convictions of Lloyd‘s co-defendant, Dwayne White, who was tried with Lloyd.1 We incorporate the factual background in that thorough opinion and focus on the facts pertinent to Lloyd‘s conviction and his arguments on appeal.
A.
According to the record before us, Lloyd was the leader of a sprawling drug dealing enterprise in Wilmington.2 Beginning in 2015, enterprise members sold large amounts of cocaine and heroin. Lloyd enlisted members to distribute cocaine on a consignment basis.3 According
Lloyd concealed illegal drug sale proceeds through the purchase of investment properties, gambling, and sports betting.9 Lloyd and White created LLCs to purchase real estate, only to quickly transfer the title to a friend or family member at no cost.10 In one transaction, a property owned by an enterprise member with an assessed value of $52,000 was transferred to White‘s wife, Nyeesha White, for free. Nyeesha White then placed the property in a trust for fifteen months and transferred the property, again for free, to NCTZA, LLC. The address listed for NCTZA, LLC was the address Lloyd listed as his primary residence.11 Sykes also described how Lloyd instructed him to use a first-time homeowner program to purchase real estate so he could conceal drug proceeds.12
When Lloyd returned to federal custody in 2017 for a probation violation, he transferred control of the enterprise to White.13 White expanded the enterprise into heroin sales. Lloyd continued to communicate with members of the enterprise while in prison.14 At times Lloyd would discuss enterprise business and the challenges of running a large-scale operation.15 He also continued to manage his investments from prison.
Some enterprise members were associated with smaller groups within the enterprise. White and three other members—Teres Tinnin, Michael Pritchett, and
Believing Stanford was a “snitch,” the feud escalated when the Big Screen Boys published a video of two members having sex with Stanford‘s girlfriend.19 This led to a series of retaliatory shootings, assaults, and robberies between Stanford and members of the enterprise. The violent activity drew attention from police, which was bad for the enterprise‘s drug business.20 White determined Stanford “had to go,” and White placed a “bounty” on Stanford‘s life.21
On June 6, 2017, Oliver and Pritchett targeted Stanford in two shootings. Stanford avoided being hit in both incidents. During the second shooting, he shielded himself behind a vehicle stopped at a stop sign.22 Gunfire meant for Stanford shattered the vehicle‘s windows and struck a six-year-old passenger, Jashown Banner, causing paralysis and brain damage from his wounds.23
After police arrested Pritchett for Banner‘s shooting, White offered $20,000 to members of Banner‘s family in exchange for a sworn statement that Pritchett was not involved in the shooting.24 While investigating Banner‘s shooting, police obtained a warrant for a wiretap on White‘s phone. The wiretap revealed links between White and other individuals who had previously been arrested for drug offenses, as well as connections between these individuals and the larger drug enterprise.
B.
In October 2017, a New Castle County grand jury returned a 36-count indictment against Lloyd and thirty-three other defendants. A series of superseding indictments modified the charges. Lloyd and White were charged in the indictment‘s lead count, Criminal Racketeering. Lloyd was also charged with six other felony counts: Conspiracy to Commit Criminal Racketeering, Drug Dealing Cocaine, Conspiracy to Deal Cocaine, Money Laundering, Conspiracy to Commit Money Laundering, and Attempting to Evade or Defeat Tax.
In addition to witnesses who testified about Lloyd‘s involvement in the enterprise, the State called three members of Banner‘s family at trial—Banner‘s father, Joshua Potts; his mother, Shaylynn Banner; and his grandmother; Deborah Banner. Each served as a witness for the shooting and the bribery attempts. White approached Potts in person and offered him $20,000 in exchange for an affidavit exonerating Pritchett.26 Next, White sent text messages to Shaylynn Banner and included photos of Pritchett and himself, so she knew who to exculpate.27 Shaylynn turned the texts and photos over to police. Finally, White approached Deborah Banner in person and made the same $20,000 offer, which she also rejected.28 The members of the Banner family that White approached each testified that White identified himself only as “Boop” and they did not know who White was prior to the bribe and never saw him again after.29
White admitted that he attempted to bribe the Banner family. During Potts’ testimony, the State asked him to identify the person who attempted to bribe him. Pointing to Lloyd, Potts identified the person in “[b]lue jeans over there” as Boop.30 When the State asked Potts to clarify, Potts again identified Lloyd as Boop.31 After the misidentification, Lloyd moved for a mistrial. The court denied the request. The State called witnesses to make clear that White solicited the bribe.32 Counsel also agreed to a stipulation read to the jury correcting the misidentification.33
On June 14, 2019, a jury convicted Lloyd of Criminal Racketeering, Conspiracy to
II.
A.
First, Lloyd challenges the Superior Court‘s denial of two motions to sever his trial from that of co-defendant Dwayne White. Under
“Ordinarily, defendants indicted jointly should be tried together; but, if justice requires it, the trial court should grant separate trials.”39 The defendant bears the burden of establishing more than “mere hypothetical prejudice.”40
This Court has held that, when reviewing a motion to sever, the trial court should consider when appropriate “(1) problems involving a co-defendant‘s extra-judicial statements; (2) an absence of substantial independent competent evidence of the movant‘s guilt; (3) antagonistic defenses as between the co-defendant and the movant; and (4) difficulty in segregating the State‘s evidence as between the co-defendant and the movant.”41 On appeal, we review a trial court‘s decision on a motion to sever for abuse of discretion.42 The denial of a motion to sever will not be set aside “unless [the] defendant demonstrates a ‘reasonable probability’ that the joint trial caused ‘substantial injustice.‘”43
i.
The Superior Court denied Lloyd‘s first motion to sever and reasoned that a charge for “criminal racketeering requires proof of a defendant‘s agreement with at least one other person to commit two or
that enterprise would all be inextricably intertwined.”45 According to the court, Lloyd was alleged to be at the center of the enterprise and conspired with White and many other individuals in furtherance of the enterprise by committing numerous felony acts.46 The court concluded that all of Lloyd‘s and White‘s actions were alleged “predicate offenses” of criminal racketeering committed in furtherance of the enterprise and were thus inextricably intertwined.47
Lloyd agrees that
or otherwise were interrelated by distinguishing characteristics.”50 In other words, these predicates “were not related to the drug dealing activities of the enterprise and Defendant White was not able to commit these offenses solely because of his relationship to the enterprise.”51 According to Lloyd, the individuals indicted for charges related to the shooting “were all members of a separate and distinct group from the larger enterprise; ‘The Big Screen Boys’ and/or ‘The Four Horsemen.‘”52
We disagree. In H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989),53 the United States Supreme Court held that, when addressing the federal RICO statute that, to prove a pattern of racketeering activity, the government must show that the predicate acts are related to the enterprise and they amount to or pose a threat of continued criminal activity.54 We have followed this precedent when interpreting our state racketeering statute.55 The first prong – relatedness – exists if the racketeering
times.”57 The second prong – continuity – is present when “the predicate acts themselves involve threats of long-term racketeering activity, or . . . [that] the predicate acts are part of an entity‘s regular way of doing business.”58
The attempted murder of Stanford and the shooting of Jashown Banner are predicate acts that meet the relatedness standard. The State presented evidence that the drug dealing enterprise and the shooting involved similar purposes, participants, and were otherwise interrelated to the activities of the drug dealing enterprise. Specifically, testimony from enterprise members showed that Stanford‘s retaliatory attacks were a threat to enterprise business by bringing unwanted attention of police investigators to the enterprise.59 By removing Stanford, the enterprise sought to stop the feud and the unwanted attention it brought to the enterprise. The Superior Court did not abuse its discretion in denying Lloyd‘s first motion to sever.
ii.
Lloyd renewed his motion to sever after White decided he would admit to participating in a drug dealing enterprise. The Superior Court denied the motion. It found that White‘s admission to drug dealing would not “create such a serious risk”
that the jury would confuse White‘s participation in the enterprise with that of Lloyd.60 The court also instructed the jury that each defendant is charged with a separate offense and should be evaluated independently.61
Lloyd argues on appeal that the court erred because his defense was mutually exclusive and irreconcilable with White‘s concession that the drug dealing enterprise existed. He asserts that White‘s concession conflicted with Lloyd‘s defense, which was to deny the existence of any enterprise. As such, according to Lloyd, “the jury could not believe both” and his case should have been severed for antagonistic defenses.62
“[T]he presence of hostility between a defendant and his codefendant or ‘mere inconsistencies in defenses or trial strategies’ do not require a severance.”63
took place or[,] . . . the extent to which they participated in [the enterprise], is a reason for rather than against a joint trial” because it is easier to uncover the truth in these situations if the defendants are tried together.65 The court pointed out that “defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials or whenever co-defendants have conflicting defenses.”66 Rather, a court should grant severance only when there is a “serious risk” that the “joint trial would compromise a specific trial right of one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence.”67 But, as the court explained, even in the presence of a serious risk of prejudice, severance is unnecessary if the prejudice can be cured with a proper jury instruction.68
Although White and Lloyd took differing positions with respect to the existence of the enterprise and their participation in the enterprise, we agree with the Superior Court‘s reasoning that White‘s trial strategy to admit guilt to the drug dealing and racketeering charges did not “create such a serious risk” and was not “so antagonistic” that the jury could not be properly instructed as to avoid substantial
prejudice to Lloyd. The jury could have concluded that White was part of an enterprise that did not include Lloyd.
Lloyd also argues that he was prejudiced by the State‘s references to the shooting of Jashown Banner. But the court also gave the following instruction to the jury with respect to assessing evidence against each defendant:
The defendants are each charged with separate offenses that are set forth in the indictment. These are each separate and distinct offenses, and you must independently evaluate each offense. The fact that you reach a conclusion with respect to one offense, or with regard to one defendant, does not mean that the same conclusion will apply to any other charged offense or to any other charged defendant. Each charge before you is separate and distinct, and you must evaluate evidence as to one offense independently from evidence of each other offense and render a verdict as to each individually.69
“Juries are presumed to follow the court‘s instructions.”70 Indeed, the jury found Lloyd guilty of all charges, except the drug dealing charge. This suggests that the jury understood the above instruction and assessed each defendant‘s charges with due care. And, as we discuss next, we reject Lloyd‘s argument that he suffered prejudice from the misidentification at trial of Lloyd as White and his participation in the bribery scheme.
During Potts’ trial testimony, he twice misidentified Lloyd as “Boop.”71 Shaylynn Banner and Deborah Banner were not asked to make an eye-witness identification of the man who attempted to bribe them, although they both testified that the man who contacted them identified himself as “Boop.” After Potts’ testimony, the State called Detective Devon Jones who clarified that “Dwayne White also goes by the nickname Boop.”72 Detective Jones offered further clarification and stated, about a photograph of White, that White was the person who the Banner family told police had contacted them with a bribe.73
Lloyd moved for a mistrial the following day, arguing that the misidentification was prejudicial because it created an inaccurate association between Lloyd and Banner‘s shooting and the subsequent bribe. The Superior Court denied the motion and concluded that granting a mistrial would be “too draconian a remedy for the problem that occurred[,]“—that being “the misidentification of [Lloyd] by an, obviously, distraught witness who is the father of the child who was shot.”74 The court reasoned that later testimony from Detective Jones “sufficiently
cured the problem.”75 The court added that a stipulation by the State and White as to White‘s involvement in the bribe, while not necessary, would further mitigate any remaining issues.76 The State and White stipulated to the jury that:
The State of Delaware and defendant Dwayne White hereby stipulate to the following: One, one of Dwayne White‘s nicknames is Boop. Two, that Dwayne White approached Joshua Potts, Shaylynn Banner, and Deborah Banner with an offer of money in exchange for their exoneration of Michael Pritchett in the shooting of Jashown Banner.77
The court instructed the jury that, “[w]hen the attorneys on both sides stipulate or agree as to the existence of a fact . . . you must, unless otherwise instructed, accept the stipulation as evidence and regard that fact as proved.”78
On appeal, Lloyd asks the Court to review the trial judge‘s denial of his motion for mistrial under the factors set forth in Pena v. State79 for an unsolicited prejudicial response by a witness. According to Lloyd, Pena applies because Potts’ “answer was not the answer the [State] was expecting or attempting to solicit . . . .”80
We review the denial of a motion for a mistrial for abuse of discretion.81
While we have not held that the Pena factors apply to mistaken identity testimony, the parties have used the framework here. In Pena, this Court set forth a
four-factor test for appellate review of an alleged prejudicial remark by a witness: (1) the nature and frequency of the offending comment; (2) the likelihood of resulting prejudice; (3) the closeness of the case; and (4) the adequacy of the judge‘s actions
First, the misidentification was not so prejudicial to warrant a mistrial. While Potts did make two misidentifications, he named Boop as the person who approached him. The next person to testify was Detective Jones. During Detective Jones’ testimony, the jury was shown a photo of White, and Detective Jones clarified that Boop is Dwayne White. Second, the record contains dozens of references to Boop as the individual who bribed the Banner family, including testimony from Shaylynn Banner and Deborah Banner. Thus, Potts’ misidentifications were unlikely to have misled the jury. Third, the record reflects that this was not a close case. The State had a strong case against Lloyd. The State‘s witnesses testified about Lloyd‘s central role in the enterprise, the State‘s experts explained how Lloyd hid drug proceeds through investment properties and gambling, and the State introduced emails from Lloyd to enterprise members while he was in prison about enterprise operations. Finally, the trial judge‘s response was sufficient to mitigate any prejudice from the misidentification. The court asked the State and White to
stipulate to White’s nickname and his involvement in the bribe. Lloyd did not request any changes to the proposed stipulation. The court then instructed the jury that it must accept the stipulation as fact. “A trial judge is in the best position to assess the risk of any prejudice resulting from trial events.”83 And, as we noted above, “juries are presumed to follow the court’s instructions.”84 The court’s response to the misidentification cured any prejudice from Potts’ misidentification.
C.
Lloyd argues next that the Superior Court erred when it admitted statements made by a secretary who worked for Lloyd’s former attorney, Joseph Benson. At trial, Sykes, one of the enterprise members, testified that he arranged a drug exchange in the parking lot of Benson’s office. Lloyd planned to drop off a “brick”—or a kilo (2.2 pounds)— of cocaine in Sykes’ car while Sykes was meeting at Benson’s office.85 Sykes “guess[ed]” that Benson’s secretary must have observed Lloyd putting the drugs in Sykes’ car because she approached Sykes afterward and said, “Don’t do that again . . . I’m going to talk to Eric [Lloyd], but don’t do that again.”86 Over Lloyd’s objection, the Superior Court allowed the testimony under the present sense impression exception to the hearsay rule.87 On appeal, Lloyd argues that the secretary’s statement did not qualify as a present sense impression.88
We review a trial court’s decision to admit or deny evidence for abuse of discretion.89
“Hearsay statements are generally inadmissible.”90 But present sense impression is a “well recognized exception[] to the general evidentiary rule against hearsay.”91
Although it is debatable how the secretary’s statement can be characterized as a description or an explanation of an event or condition and it is unclear from the statement itself what the secretary perceived while or immediately before she uttered it, any error in admitting the statement was harmless. The State apparently offered the statement to suggest that the secretary witnessed some sort of illicit transaction in the law firm’s parking lot. But Sykes offered first-hand testimony that he and Lloyd had planned the drug delivery to take place in the law firm’s parking lot while Sykes was inside. And Sykes further testified that, when he left the office following his encounter with the secretary, he found the “brick” of cocaine under the front seat of his car. Given this testimony, the statement attributed to the secretary, even when accorded its most sinister connotation, was merely cumulative and did not affect Lloyd’s substantial rights.92
D.
The Superior Court admitted into evidence guns seized from the apartment and storage unit of another co-defendant, Maurice Cooper. The court found that the gun evidence was relevant and went to the State’s showing of the existence of an illegal drug dealing enterprise.93 Lloyd argues on appeal that the gun evidence was highly prejudicial and irrelevant, “as none of the defendants were charged with utilizing guns generally, and certainly not the guns recovered from Cooper’s apartment.”94 We review the Superior Court’s decision to admit or exclude evidence for abuse of discretion.95
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable”96 and is admissible unless otherwise provided by statue or rule.97
Relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”98
Here, the guns were found in the storage unit of an enterprise member along with a large quantity of heroin.99 Lloyd was charged as one of the leaders of a drug dealing enterprise. The Superior Court ruled correctly that the firearms and drugs tended to establish the existence of a drug dealing enterprise and its business and operations.
E.
At trial, the State admitted five music videos created by Ryan Bacon. The videos featured combinations of enterprise members, including Bacon, Oliver,
On appeal, Lloyd contends that the videos should not have been admitted against him because they were related to predicate offenses involving only the shooting and attempted murder, for which only White was charged. Relying on Taylor v. State,105 Lloyd further contends that the Superior Court failed to determine whether the videos were being admitted for a proper purpose. We review the Superior Court’s ruling on whether to admit or deny evidence for abuse of discretion.106
Lloyd was charged with Criminal Racketeering. As discussed above, the State was required to prove that Lloyd engaged in a “pattern of racketeering,” demonstrated by (1) two or more incidents of conduct that constitute racketeering activity, (2) are related to the affairs of the enterprise, (3) and are not so closely related to each other and connected in a point of time and place related that they constitute a single event.107 The videos were introduced to demonstrate the existence of the enterprise and to link the participants to the enterprise through a pattern of racketeering activity.108 The videos show enterprise members glorifying drug dealing and its financial benefits. The videos supported the existence of an illegal drug dealing enterprise by the enterprise members appearing in the videos. Further, the State’s witnesses, including certain members of the enterprise, established a nexus between specific details of the videos and the circumstances of the enterprise and the racketeering activity during the relevant timeframe.
Lloyd’s reliance on Taylor is misplaced. In Taylor, the defendant was charged with gang participation. To prove the defendant was affiliated with the gang, the State sought to introduce lyrics that “generally discuss[ed] drug dealing and violent acts” and “contain[ed] statements that specifically reference[d] animosity between” the two rival gangs at issue in the case.109 The Superior Court admitted the videos under the co-conspirator exception to the hearsay rule because the song was performed by a
Here, the state did not rely on the co-conspirator exception to the hearsay rule for admission of the videos. Instead, the State relied on the videos to prove the existence of a drug dealing enterprise involving the individuals featured in the videos. The Getz factors did not need to be reviewed before admitting the videos.
F.
Lloyd’s final claim is that his sentence of thirty years of incarceration without the option of early release violates his constitutional protection against cruel and unusual punishment. “The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’”113
The jury convicted Lloyd of Criminal Racketeering, Conspiracy to Commit Criminal Racketeering, Conspiracy to Deal Cocaine, Money Laundering, Conspiracy to Commit Money Laundering, and Attempting to Evade or Defeat Tax. Before imposing the sentence, the Superior Court addressed Lloyd directly and explained its sentence as follows:
I did preside over the trial, so I’m familiar with the facts in the case, and to use [Lloyd’s counsel’s] words, there are a lot of blurring of facts and responsibility and involvement, but the bottom line is that the State prove[d] there is beyond a reasonable doubt one large sprawling – I’ll call it dangerous racketeering enterprise. And I say “dangerous” because so many drugs were involved, and when we speak of victims, who knows who could ever guess how many victims there were of either becoming addicted, of aggravating their addiction, of persons who were addicted committing crimes. It’s just a great big tangled kind of web, these drug operations . . . were talking not just about crime, but the business of crime.
***
You made the choice after serving a 14-year Federal sentence for reengaging in the drug racketeering business. And as [the State] pointed out, it preceded your going back into prison for a relatively short Violation of Probation stay.
***
What’s most concerning to [the court], . . . is after you served a lengthy prison sentence . . . for a drug charge, you came back, and you made the voluntary
decision to reimmerse yourself into the drug world. ***
Here, a 14-year sentence didn’t get that message to you, and if one of the functions of a sentence is to keep the streets of Delaware and elsewhere safe, it’s to put behind bars and into jail people who might be likely to re-offend when they get out.114
The judge also observed that Lloyd was “highly, highly involved, if not a kingpin in this.”115
The court sentenced Lloyd to an aggregate of thirty years of incarceration at Level V to be served in its entirety under
In Crosby v. State,119 we examined the Eighth Amendment’s proportionality requirement and established a two-part test to determine whether a particular sentence is prohibited:
[First,] this Court must undertake a threshold comparison of the crime committed and the sentence imposed. If such a comparison leads to an inference of gross disproportionality, then this Court must compare [the defendant]’s sentence with other similar cases to determine whether the trial court acted out of step with sentencing norms.120
Crosby was convicted of forgery and received a life sentence under Delaware’s habitual offender statute.121 We held that when the triggering crime was “a single count of the least serious, non-violent felony,” the imposition of a life sentence was “so disproportionate that it must be set aside.”122
Here, Lloyd’s sentence is not prohibited because a comparison of the crimes committed and the sentence imposed does not lead to an inference of gross disproportionality. Lloyd, unlike Crosby, was convicted of six felonies, including Criminal Racketeering, a class B violent felony which carries up to 25 years imprisonment under the SENTAC guidelines.123 As the Superior Court noted, Lloyd was a three-time
III.
The judgment of the Superior Court is affirmed.