Appiah v. State ( 2020 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
KENNETH APPIAH, §
§ No. 30, 2020
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID. No. N1808022193
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: November 18, 2020
Decided: December 22, 2020
Before SEITZ, Chief Justice; VALIHURA, and MONTGOMERY-REEVES,
Justices.
ORDER
This 22nd day of December 2020, having considered the parties’ briefs and the
record below, it appears to the Court that:
(1) On January 10, 2020, a Superior Court jury found Kenneth Appiah
guilty of multiple felonies. A Superior Court judge sentenced him to 17 years in
prison followed by probation. In this appeal from his convictions, he raises two main
arguments - first, whether the Superior Court denied his constitutional right to
confrontation and a meaningful opportunity to present a complete defense; and
second, whether the Superior Court compromised his Sixth Amendment right to self-
representation by denying his requests for new counsel or self-representation. We
find no merit to his arguments and affirm his convictions.
(2) Aruna Kanu, his girlfriend Aimee Kamara, and their son rented an
apartment in Newark, Delaware. They sub-let a second bedroom in the apartment
to Appiah. Appiah paid Kanu a security deposit and received two keys to the
apartment. After living in the apartment for only two weeks of the agreed seven-
month rental term, Appiah told Kanu that he accepted a job in Philadelphia and left
the apartment. Kanu refused to return Appiah’s security deposit after Appiah moved
out. After Appiah left, Kanu rented the apartment’s spare bedroom to Ricardo
Campbell. Appiah never returned the two keys to the apartment. Appiah
unsuccessfully tried to involve the police to get the security deposit back. Appiah
also continued to text and email Kanu demanding his security deposit. In a final
October 16, 2017 text, Appiah told Kanu “you need to stop playing with me.” 1
(3) On December 13, 2017, Kanu, Kamara, and their son were home at the
apartment when a man in a black outfit and black mask entered the apartment using
a key and pointed a gun at Kanu and gestured like he was demanding money. Kanu
went into the bedroom, shut the door, and yelled for Kamara to call 911. While
Kanu was on the floor, the man shot two times through the bedroom door. The
1
App. to Opening Br. at A064 (Trial Tr. at 26).
2
gunshots did not hit anyone but damaged the child’s crib. At trial, Kanu testified
that the man was Appiah.2
(4) Appiah fled the apartment before police arrived. Police collected two
spent .32 caliber shell casings from outside the bedroom door and projectiles from
the baby’s crib and the wall. An officer’s body camera from the night of the incident
showed an officer going into Campbell’s room, saying that the room smelled like
drugs, and pointing out a drug scale and drug packaging.
(5) Police interviewed Appiah that night but did not arrest him. Appiah
was wearing black clothes when the police conducted the interview. Two days later,
police interviewed Appiah again. He admitted that he owned a .32 caliber handgun.
Police arrested Appiah, seized the gun, and had the gun tested. A forensics expert
testified that the shell casings from the apartment were consistent with having come
from Appiah’s gun, though the examiner could neither identify nor eliminate the
projectiles as having been fired from Appiah’s gun.
(6) The State charged Appiah with Home Invasion, Burglary in the First
Degree, five counts of Possession of a Firearm during the Commission of a Felony,
Attempted Robbery in the First Degree, three counts of Reckless Endangering in the
First Degree, and a misdemeanor count of Criminal Mischief. After a three-day trial,
a Superior Court jury convicted Appiah of all charges, except Home Invasion and
2
Id. at A066 (Trial Tr. at 34).
3
instead of Attempted Robbery in the First Degree, of the lesser-included offense of
Aggravated Menacing. The Superior Court judge sentenced Appiah to seventeen
years at Level V, followed by probation.
(7) On appeal, Appiah raises three claims of error relating to the Superior
Court’s denial of his request to inquire into drug paraphernalia found in Campbell’s
room—(a) the evidence could be used under D.R.E. 616 to show bias; (b) the
evidence could be used under D.R.E. 404(b) to rebut the State’s motive argument;
and (c) precluding its use violated the Confrontation Clause and Appiah’s Due
Process right to a fair opportunity to defend against the State’s accusations. He also
claims that his Sixth Amendment rights were violated when the Court refused to
appoint new counsel or allow him to represent himself. We review the Superior
Court’s evidentiary rulings for abuse of discretion.3 We review alleged
constitutional violations related to the trial court’s evidentiary ruling de novo.4
(8) Addressing first the Superior Court’s refusal to let defense counsel
cross-examine a witness about drug paraphernalia found in the apartment, the State
called Campbell to testify about his lack of keys to the apartment and his need to use
a set of keys Kanu left under the floor mat in Kanu’s car. The State used the
testimony to show that Appiah kept the keys to the apartment and used the keys to
3
Allen v. State, 878 A.2d 447, 450 (Del. 2005).
4
Smith v. State, 913 A.2d 1197, 1233 (Del. 2006).
4
gain access to the apartment for the robbery. On cross-examination, Appiah’s
counsel asked Campbell about a drug scale in his room. The State objected, and the
court called for a sidebar.
(9) Appiah’s counsel explained that he wanted to use the evidence to
establish that other people involved in drug transactions might have been coming
and going from the apartment using Campbell’s key. This proved, according to
Appiah’s counsel, that someone other than Appiah could have entered the apartment
on the night in question. The trial judge told Appiah’s counsel that she might allow
her to ask about the drug evidence if counsel could lay a foundation about Campbell
or Kanu loaning the apartment keys to others. After the sidebar, the court instructed
the jury to disregard Appiah’s counsel’s question to Campbell about the drug scale.5
At the end of that day of trial, Appiah’s counsel raised the issue again and the court
ruled that she was not satisfied that it was admissible under D.R.E. 403 because it
was too speculative.6
(10) Appiah argues that the drug paraphernalia evidence was relevant to
Campbell’s bias as a witness because, according to Appiah, the evidence “provided
a reasonable basis to suggest that Kanu, Campbell and Kamara had a motive to tailor
5
App. to Opening Br. at A051 (Trial Tr. at 86-87).
6
Id. at A059 (Trial Tr, at 130) (“[The Court]: At this point, I’m not satisfied it’s admissible under
[Rule] 403. I’m just not. I think it’s – too much of a stretch.”).
5
their testimony to curry favor with the prosecution in an attempt to avoid criminal
charges.”7 It is arguable whether Appiah made this argument below and thus we
should review for plain error. Regardless, even if we review for abuse of discretion,
the court did not err.
(11) D.R.E. 616 provides that “[a] witness’s credibility may be attacked with
evidence of the witness’s bias, prejudice or interest for or against any party to the
case.” This rule is not, however, without limits. The impeachment evidence must
be relevant to bias and not cause unfair prejudice, confusion, or undue delay.8 Here,
the trial judge gave Appiah the opportunity to lay a foundation that Campbell was
allowing others to use his key to enter the apartment and make drug deals. The
evidence was not forthcoming. The court eventually found that the speculative use
of the evidence was “very prejudicial and takes away from the main reasons [they
were at trial].”9 The Superior Court did not abuse its discretion when it weighed the
speculative and marginal relevance of the evidence against the prejudice to the State
of allowing cross-examination on—at best—a tangential issue.
(12) Second, Appiah argues that the trial court abused its discretion when it
denied admission of the drug evidence under D.R.E. 404(b) to rebut the State’s
motive evidence that Appiah was after his security deposit. D.R.E. 404(b) provides
7
Opening Br. at 17.
8
Wilkinson v. State, 979 A.2d 1111, 2009 WL 2917800, at *2 (Del. 2009) (TABLE).
9
App. to Opening Br. at A051 (Trial Tr. at 84).
6
that evidence of “other crimes, wrongs or acts” can be admitted “for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity
or absence of mistake or accident.”
(13) When a defendant seeks to use evidence under D.R.E. 404(b), it is
called “reverse 404(b) evidence” because evidence is typically introduced under
Rule 404(b) against the defendant.10 In a reverse 404(b) instance, the trial judge
examines “(1) whether the evidence is being offered for a purpose permitted by Rule
404(b); (2) whether the evidence is relevant under Rule 402; and (3) any argument
by a party that the probative value of the evidence is substantially outweighed by
potential prejudice, undue delay, or confusion of the issue under Rule 403.”11 As
has already been shown, the court fairly concluded that the probative value was
outweighed by confusion of the issues, undue delay, and unfair prejudice.
(14) The defense relies on Norwood v. State.12 In Norwood, this Court found
that evidence of a third party’s involvement in an almost identical crime to the one
at issue was relevant to the defense’s theory of misidentification. This court held
that the evidence was admissible because the State did not articulate any prejudice,
the evidence would not cause undue delay, and the jury would not be confused about
10
See Norwood v. State, 95 A.3d 588, 596 (Del. 2014).
11
Id. at 598.
12
95 A.3d 588 (Del. 2014).
7
the main issue in the case–the identity of a third robber.13 Here, unlike Norwood,
the State showed that the drug paraphernalia evidence was speculative and unfairly
prejudicial to the State’s case.14 The court was also concerned about starting a mini-
trial about the drug evidence, which would confuse the jury and waste time. 15 The
court did not abuse it’s discretion by excluding the evidence.
(15) Appiah also claims that even if this court finds no reversible error in
denying the opportunity for cross examination under D.R.E. 616 or D.R.E. 404(b),
this Court should nonetheless find that, cumulatively, the denial of his use of the
evidence amounted to a violation of the Confrontation Clause and Appiah’s Due
Process right to a fair opportunity to defend against the State’s accusations.
(16) The Sixth Amendment guarantees a criminal defendant the right to
confront witnesses against him.16 An essential component of this right is the
defendant’s right to conduct adequate cross-examination of adverse witnesses. A
trial court’s discretion to limit the scope of cross-examination is guided by our
decisions in Snowden v. State and Weber v. State.17 In those cases, the court looked
to “(1) whether the testimony of the witness being impeached is crucial; (2) the
logical relevance of the specific impeachment evidence; (3) the danger of unfair
13
Id. at 599.
14
App. to Opening Br. at A050 (Trial Tr. at 83).
15
Id. at A051 (Trial Tr. at 84).
16
U.S. Const. amend. VI.
17
Williams v. State, 141 A.3d 1019, 1033 (Del. 2016).
8
prejudice, confusion of the issues, and undue delay; and (4) whether the evidence is
cumulative.”18 The question boils down to “whether the jury had in its possession
sufficient information to appraise the biases, credibility, or motives of the witness.”19
(17) Even if the reviewing court finds that the trial court violated the
defendant’s constitutional right to confrontation, however, “a reversal is required
only if the reviewing court cannot conclude that the error was harmless beyond a
reasonable doubt.”20 Whether an error is harmless depends on “(1) the importance
of the testimony of the challenged witness; (2) whether his [or her] testimony was
cumulative; and (3) the presence or absence of overwhelming evidence of guilt.”21
The ultimate question for the reviewing court is whether the error may have affected
the outcome.22
(18) We have already found that the trial court did not abuse its discretion
in limiting the cross-examination of a State witness about drug paraphernalia
evidence because the probative value of the evidence did not outweigh the prejudice
and risk of confusing the jury. But, even if the trial court erred, it is highly doubtful
that the drug paraphernalia evidence would have affected the jury’s decision. The
18
Id.19
Id. at 1034 (citing Weber v. State, 457 A.2d 674, 682 (Del. 1983)) (internal quotation marks
omitted).
20
Wilson v. State, 950 A.2d 634, 639 (Del. 2008) (citing Chapman v. California, 386 U.S. 18, 24
(1967)).
21
Williams, 141 A.3d at 1035 (quoting Wilson, 950 A.2d at 639, citing Van Arsdall v. State, 524
A.2d 3, 8 (Del. 1987)).
22
Id. (citing Van Arsdall, 524 A.2d at 11).
9
evidence was speculative and minor in importance to other evidence of guilt such as
the .32 caliber weapon, shell casings, Appiah’s access to keys to the apartment, and
Kanu’s identification of Appiah as the intruder.
(19) Finally, Appiah argues that his conviction should be reversed because
the Superior Court denied his request for new counsel and denied his Sixth
Amendment right to represent himself. The right to proceed pro se is reviewed de
novo.23 Because Appiah made his request to change counsel just before trial and
during trial, under this Court’s decision in Briscoe v. State, the trial court must
inquire whether the reasons offered by the defendant to discharge his attorney
constitute good cause to justify a continuance of the trial.24 If the court does not find
good cause, the defendant must choose either to continue with his existing counsel
or proceed to trial representing himself.25 If the defendant decides to proceed pro
se, the trial court must engage in a further colloquy to ensure that the defendant
understands the consequences of the decision.26
(20) Here, different Superior Court judges made the necessary inquiry into
whether new counsel should be appointed along with the timing of the request.
Appiah was able to express his reasons for wanting new counsel. Appiah stated that:
(a) he wanted defense counsel to get a medical report about Kanu being shot even
23
Stigars v. State, 674 A.2d 477, 479 (Del. 1996).
24
Briscoe v. State, 606 A.2d 103, 107 (Del. 1992).
25
Id.26
Id.10
though it was undisputed that Kanu falsely told the 911 operator he had been shot;
(b) defense counsel supposedly contacted Appiah’s wife without his permission and
discussed the case; (c) he questioned whether defense counsel understood the
ballistics report; (d) defense counsel supposedly spoke to him in a demeaning
manner; and (e) he doubted her abilities and argued when they were together.27
Some tension is unavoidable between counsel and client. Without facts showing a
complete breakdown in communication with counsel, a conflict of interest, or an
irreconcilable interpersonal conflict, the Superior Court did not abuse its discretion
before or during trial when it denied Appiah’s request for new counsel.28
(21) Appiah’s self-representation claim is also without merit. Before
Appiah is entitled to a colloquy with the court about representing himself, he must
make a timely request to represent himself and must do so clearly and
unequivocally.29 Before trial, the Superior Court asked Appiah if he wanted to
represent himself, and Appiah responded that he did not.30 During trial, the State
had already presented most of its case, and Appiah’s complaints were not new. The
Superior Court was well within its discretion to deny the request when the same
27
App. to Opening Br. at A022–28 (Tr. of Case Review Colloquy at 6–12).
28
United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982)).
29
Buhl v. Cooksey, 233 F.3d 783, 792 (3d Cir. 2000).
30
App. to Opening Br. at A024 (Tr. of Case Review Colloquy at 8) (“[The Court]: Mr. Appiah,
you don’t get to choose your attorney. So, is your proposal, then, to represent yourself? [The
defendant]: I can’t represent myself.”).
11
request was thoroughly considered a week before trial. Granting Appiah’s request
on the second day of trial would have delayed the trial and caused prejudice to the
State, trial witnesses, and the court in a trial that was fully underway.31
NOW, THEREFORE, it is hereby ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Chief Justice
31
On March 4, 2019, Judge Scott met with Appiah, his attorney, and the prosecutor and thoroughly
reviewed Appiah’s request for new counsel. President Judge Jurden also held an office conference
with Appiah’s counsel and the prosecutor to discuss what Appiah said to Judge Scott about
terminating his trial counsel. President Judge Jurden found that Appiah’s counsel had acted
appropriately in the circumstances. App. to Opening Br. at A037 (Office Conference Tr. at 8).
12