IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

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1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE, ) ) v. ) ) ID No DIONNE BROWN, ) ) Defendant. ) Submitted: March 9, 2001 Decided: April 12, 2001 MEMORANDUM OPINION Upon Motion of Defendant for Judgment of Acquittal - DENIED Daniel R. Miller, Esq., Deputy Attorney General, Department of Justice, for State of Delaware Joseph M. Bernstein, Esq., of Wilmington, Delaware, attorney for defendant HERLIHY, Judge

2 Dionne Brown has moved for judgment of acquittal of her conviction for robbery in the second degree. She went to trial on that charge and for conspiracy second degree. At the end of the State s case, however, the Court dismissed the conspiracy charge but denied her motion on the robbery charge. She renews her argument that the evidence is insufficient to support a conviction for robbery. The events of the robbery were disputed. The robbery victim did not testify at trial, but a tape of a 911 call she made shortly after the incident was played. That tape implicated three persons in the robbery, including one matching Brown s description. One of the other participants testified, but said things inconsistent with a prior statement to the police. Based on the 911 tape and sorting out the testimony and various statements, there was and is sufficient basis for a rational juror to find Brown committed robbery in the second degree. For that reason, her motion is DENIED. FACTS On December 29, 1999, early in the afternoon, Brown was driving her silver 1995 GMC Jimmy with Carla Coverdale and Robert Taylor. They were on Third Street in Wilmington in route to have lunch in the Adams Four area. During the ride, Taylor asked Brown to pull over because he noticed a pedestrian was wearing his coat. According to Coverdale s trial testimony, Taylor s coat had been stolen a week before. Brown testified that she was unaware of anything pertaining to Taylor s coat, but testified he said, Auntie there s my coat, pull over. Taylor did not testify during the trial.

3 After the SUV stopped, Taylor jumped out and approached Alice Seeney, the person who was allegedly wearing Taylor s coat. It appears Seeney was a total stranger to all three. Taylor asked if he could look at the coat, but Seeney refused. Taylor then attempted to take the coat and a struggle ensued. Brown observed that Seeney was resisting Taylor s efforts to get the coat. Coverdale testified she exited the vehicle and asked Brown to help separate Taylor and Seeney. Brown got out of the car and, according to both Brown and Coverdale, they only pulled on Taylor in an attempt to get him away from Seeney. Sometime during the struggle, however, Coverdale grabbed a bible Seeney was holding. Taylor, with the coat in hand, Coverdale and Brown returned to Brown s vehicle and drove off. Coverdale tossed the bible back at Seeney, as they drove away. Very shortly thereafter and not far from the robbery scene, Seeney called 911 and reported the incident. The 911 call was recorded and the tape was played for the jury. 1 On the tape, Seeney stated three people, two women and a man, jumped out of a car and took her coat. She described one of her female attackers as wearing a pony tail on top of her head, which apparently is how Brown was wearing her hair when arrested several days later. Seeney felt threatened because she thought the man was going to hit her. She then provided the license plate number and told the operator two females and a male perpetrated the crime. Seeney stated they attempted to grab her and pulled her 1 Culp v. State, Del.Supr., 766 A.2d 486 (2001). 2

4 around. Seeney told the 911 operator, as Coverdale admitted, that one of the women snatched her bible and later threw it at her. Coverdale testified on behalf of the prosecution after pleading guilty to conspiracy and theft. Portions of her testimony conflicted, however, with previous statements made to police. At trial, she testified that she, Brown and Taylor were present at the scene of the crime, but initially told police that only Brown and she were present. Coverdale told the jury that she did not want to mention Taylor s name because she realized that what he did was wrong. Also, Coverdale initially stated to police that Taylor s coat was stolen from her clothesline, but later admitted he said he was robbed of it. She admitted at trial that she lied to the police because she did not want to get anyone in trouble. When Brown s SUV was searched about ten days later, the police recovered the coat. Brown contends insufficient evidence exists to sustain her conviction of robbery in the second degree. She argues she never knew that Taylor s coat was stolen, had no idea why she was pulling over, exited the car for the sole purpose of getting Taylor away from Seeney and never intended to aid Taylor in stealing the coat by driving away from the scene. The State contends Brown is either guilty as a principal or an accomplice. She was a principal, the State argues, because of the victim s account on the 911 tape that three people jumped out of the vehicle, robbed her, and Brown drove the getaway vehicle. The State argues sufficient evidence also exists to prove Brown was guilty as an accomplice because the jury could have found that Brown assisted/aided 3

5 the other participants in removing the property from Seeney or by driving the getaway vehicle. STANDARD OF REVIEW A motion for acquittal shall be granted, if the evidence is insufficient to sustain a conviction. 2 When ruling on this motion, the court must consider the evidence and all legitimately drawn inferences from the point of view most favorable to the State. 3 Credibility determinations are for the jury to make. 4 DISCUSSION Brown was convicted of robbery in the second degree either as a principal or an accomplice. The jury was charged it could find her guilty under either principle or culpability. Robbery in the second degree states: (a) A person is guilty of robbery in the second degree when, in the course of committing theft, the person uses or threatens the immediate use of force upon another person with intent to: (1) Prevent or overcome resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) Compel the owner of the property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft * * * (b) In addition to its ordinary meaning, the phrase in the course of committing theft includes any act which 2 Superior Court Criminal Rule 29(a). 3 Vouras v. State, Del.Supr., 452 A.2d 1165 (1982). 4 Williams v. State, Del.Supr., 539 A.2d 164, 168 (1988). 4

6 occurs in an attempt to commit theft or in immediate flight after the attempt or commission of the theft. 5 Liability for the conduct of another states: A person is guilty of an offense committed by another person when: (1) Acting with the state of mind that is sufficient for commission of the offense, the person causes an innocent or irresponsible person to engage in conduct constituting the offense; or (2) Intending to promote or facilitate the commission of the offense the person: a. Solicits, requests, commands, importunes or otherwise attempts to cause the other person to commit it; or b. Aids, counsels or agrees or attempts to aid the other person in planning or committing it; or c. Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so; or 5 11 Del.C

7 (3) The person s conduct is expressly declared by this Criminal Code or another statute to establish the person s complicity. 6 It is undisputed Brown was present at the scene. The issues are her actions and state of mind. The State presented two approaches upon which the jury could have concluded Brown was guilty. The State submitted into evidence the 911 tape to establish Brown was a principal in the robbery. Seeney, during the 911 call, told the operator/ dispatcher that three people, two women and a man, jumped out of a vehicle and robbed her. Although the statement is not detailed, she clearly states three people robbed her. The description of the hair style of one of her female attackers matches Brown s. Again, it is without dispute Brown was present and in some fashion part of a struggle going on. She even said Taylor told her to stop the SUV because of the coat. Seeney also felt threatened because she thought the man was going to hit her. The State also presented evidence that Brown drove her vehicle away from the crime scene, which constitutes the immediate flight after the commission of the forcible theft. By her own and Coverdale s trial testimony, she knew Seeney resisted giving up the coat and that it had to be forcibly removed from her. This constitutes sufficient evidence for a rational juror to conclude Brown was guilty as a principal. Alternatively, the State argued Brown could also have been found guilty as an accomplice. Evidence was presented which the jury could have inferred that Brown aided in removing the coat from Seeney or aided in the robbery by providing 6 11 Del.C

8 the getaway from the crime scene. Neither party disputes Brown drove the vehicle from the scene of the crime nor that she was unaware of the force used to get the coat. The defense contends Coverdale s and Brown s testimony exonerates Brown from any wrongdoing. Coverdale testified she and Brown only attempted to pull Taylor away from Seeney and Brown did not know the coat was stolen. Brown testified she did not intend to steal the coat and did not know why she was pulling the car over, a statement which the Auntie comment belies. A reasonably jury could have discredited some or all of the testimony of both Brown and Coverdale and relied solely on the 911 tape to convict Brown. Coverdale admitted she lied to police during the initial investigation. Initially, she never mentioned that Taylor was present during the altercation because she knew what he did was wrong and did not want to subject him to criminal liability. She also lied by stating the coat was stolen from her clothesline, when it was actually taken in a robbery. She pled guilty to conspiracy and theft (misdemeanor), but, at trial, insisted Brown did nothing wrong. Coverdale may have also lost credibility with the jury when she told the jury the purpose of Brown and her exiting the vehicle was to pull Taylor away from Seeney, but then later admitted to taking Seeney s bible. The jury might have wondered what was the purpose of taking the bible after Coverdale testified she was allegedly only pulling Taylor from Seeney. Whether or not to believe Coverdale s testimony was a determination for the jury. Brown testified she knew nothing about the coat being stolen from Taylor. The jury could have questioned her testimony and also discredited it. Why did she pull 7

9 over, if she had no idea what was going on? If she had no idea the coat was stolen, why would she drive away knowing that Taylor had just forcibly removed it from a stranger? These and other questions could have raised doubts with the jury in deciding how much credibility to give her testimony. She also testified she was pulling Coverdale, who was holding onto Taylor, to get him away from Seeney, but somewhere in the mix, the jury could have concluded that Brown was not holding onto Coverdale because Coverdale was busy stealing Seeney s bible. On the 911 tape, Seeney told the operator three people jumped out of the car and robbed her of the coat. The tape was evidence at trial and the jury could have reached a verdict solely on the 911 tape. Brown could have jumped out of the vehicle and actually participated in the robbery, according to the 911 tape, or could have aided the robbery by either helping to remove the coat or by driving the getaway vehicle. Therefore, this Court finds sufficient evidence exists to prove Brown was guilty of robbery in the second degree beyond a reasonable doubt. CONCLUSION For the reasons stated herein, the motion of defendant Dionne Brown for acquittal is DENIED. Sentencing shall be scheduled for Friday, April 27, 2001 at 9:30 a.m. IT IS SO ORDERED. 8

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