Anderson v. State

249 A.3d 785

Damon ANDERSON, Defendant Below, Appellant,

v.STATE of Delaware, Plaintiff Below, Appellee.

No. 476, 2019

Supreme Court of Delaware.

Submitted: January 6, 2021

Decided: March 30, 2021

Andrew J. Witherell, Esquire (argued), Wilmington, Delaware, for Defendant Below, Appellant Damon Anderson.

Andrew J. Vella, Esquire (argued), Delaware Department of Justice, Wilmington, Delaware, for Plaintiff Below, Appellee State of Delaware.

Before SEITZ, Chief Justice; VALIHURA, and MONTGOMERY-REEVES, Justices.

SEITZ, Chief Justice:

A Superior Court jury convicted Damon Anderson of five felonies for his involvement in a Wilmington drug dealing enterprise. The Superior Court declared Anderson an habitual offender and sentenced him to an aggregate thirty-two years of incarceration. Anderson makes four arguments on appeal. First, Anderson contends that the trial court erred when it denied his motion to sever his case from that of co-defendants Eric Lloyd and Dwayne White. Second, Anderson argues that the trial court should not have admitted gun evidence seized from a co-defendant's apartment. Third, Anderson contends that the trial court erred by denying his motions to suppress evidence discovered following search warrants for his home, car, and cell phones. And finally, Anderson contends that the trial court erred in denying his motion for judgment of acquittal on two charges. For the reasons discussed below, we find Anderson's claims are without merit and affirm the judgment of the Superior Court.

I.

This Court has already affirmed the convictions of Anderson's co-defendants Dwayne White and Eric Lloyd, who were tried with Anderson.¹ We incorporate the factual background in those opinions and focus on the facts pertinent to Anderson's conviction and arguments on appeal.

A.

Viewing the evidence at trial in a light most favorable to the State,² Damon Anderson, who goes by the nickname "Frog," was a drug dealer in a sprawling Wilmington cocaine and heroin distribution enterprise. Eric Lloyd and Dwayne White ran the operation. Anderson worked closely with White as a high-level drug dealer in the enterprise.³ He had an "open door policy" with White to get drugs on an as-needed basis.⁴ Whenever White was facing scrutiny by the police and needed to lay low, Anderson became the supplier in White's place.⁵ Anderson was "part of ... the inner circle" of drug dealers that orbited White.⁶

Lloyd headed the cocaine trade and White was at the top of the heroin trade.⁷ Lloyd and White frequently called upon enterprise members like Anderson to gamble at casinos and to place sports bets as a way to "wash" drug proceeds.⁸ In addition to laundering proceeds through gambling, Lloyd, White and Anderson concealed physical assets and proceeds through investment properties and LLCs. The scheme involved creating LLCs to purchase real estate, only to quickly transfer the title to a friend or family member at no cost.⁹

After Anderson's arrest, the police executed a search warrant for Anderson's residence and car. Investigators recovered seven cell phones, drug packaging materials, gambling receipts, money order receipts, a $550 t-shirt, $750 sneakers, and another pair of sneakers worth $1,000.¹⁰ Police also recovered Anderson's 2016 W-2 and tax return forms, which showed that he earned $16,156 that year.¹¹ Finally, police discovered documents showing that Anderson had an ownership interest in a cleaning franchise with a fellow enterprise member.¹²

The quantity and type of cell phones recovered were indicative of Anderson's role in the enterprise. Anderson had several flip phones, or "burner" phones, as they are commonly referred to by investigators.¹³ Drug dealers use multiple burner phones at once for different clientele or for different drugs and only use them for a short period of time to evade detection by law enforcement.¹⁴ Investigators also recovered a phone they knew belonged to Anderson based on wiretap evidence.¹⁵ Through the wiretap, police listened to calls where White told Anderson to make bets in a boxing match exceeding $20,000.¹⁶ A search warrant for the content of the phones revealed text messages about drug transactions.¹⁷ Police also recovered "drug ledgers" with the names of enterprise members and the amount of money each individual owed White based on the drugs he gave them to sell.¹⁸ At least two ledgers referred to Anderson by his nickname, Frog.¹⁹ One ledger listed "8,000" next to "Frog."²⁰

B.

On October 16, 2017, a New Castle County grand jury indicted Anderson and thirty-three co-defendants for Criminal Racketeering and other charges associated with Lloyd and White's illegal drug enterprise. A series of superseding indictments modified the charges against Anderson and his co-defendants. Eventually, the State charged Anderson with Conspiracy to Commit Criminal Racketeering, Drug Dealing Heroin, Aggravated Possession of Heroin, Drug Dealing Cocaine, Money Laundering, Conspiracy to Commit Money Laundering, and Attempt to Evade or Defeat Tax.

Before trial, it became known that White planned to admit to the Drug Dealing, Conspiracy to Commit Drug Dealing, and Criminal Racketeering charges against him but deny involvement in the shooting of a six-year-old child. Lloyd and Anderson sought to sever their trials from White's trial. The Superior Court denied the request. Anderson, Lloyd and White proceeded to trial in the Superior Court. At the close of the State's case, Anderson moved for judgment of acquittal on the Money Laundering and Attempt to Evade or Defeat Tax charges. The court denied the motion. After a nine-day trial, a jury convicted Anderson of Conspiracy to Commit Criminal Racketeering, two counts of Drug Dealing (Tier 4), Money Laundering, and Attempting to Evade or Defeat Tax. Anderson was found not guilty of Aggravated Possession of Heroin. The State dismissed the Conspiracy to Commit Money Laundering charge. On October 18, 2019, the Superior Court declared Anderson an habitual offender and sentenced him to an aggregate thirty-two years of incarceration at descending levels of supervision. This is Anderson's direct appeal.

II.

A.

First, Anderson challenges the Superior Court's denial of his motion to sever his trial from his co-defendants. As we explained in Lloyd , under Superior Court Criminal Rule 8(a), a defendant may be indicted for two or more offenses if the offenses are "of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."²¹ Superior Court Criminal Rule 8(b) permits joinder of defendants in the same indictment "if they are alleged to have participated in the same act or transaction or in the same series of acts or transaction constituting an offense or offenses."²² Rule 14, however, allows the Superior Court to grant separate trials "[i]f it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial."²³ "Ordinarily, defendants indicted jointly should be tried together; but if justice requires it, the trial court should grant separate trials."²⁴ The defendant bears the burden of establishing more than "mere hypothetical prejudice."²⁵

When reviewing a motion to sever, the trial court should consider as 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."²⁶ On appeal, we review a trial court's decision on a motion to sever for abuse of discretion.²⁷ 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.’ "²⁸

As noted earlier, Anderson and Lloyd learned before trial that White planned to admit to the racketeering and drug dealing charges at trial. Lloyd filed a motion to sever, which Anderson joined.²⁹ Anderson and Lloyd argued that White's admission to involvement in the enterprise rendered the co-defendants’ defenses mutually antagonistic.³⁰ The court denied the motion, and found that White's admission to drug dealing would not "create such a serious risk[,] or is so antagonistic" that the jury would have to conclude that White was part of an enterprise that involved Anderson or Lloyd.³¹ The court also instructed the jury that each defendant was charged with a separate offense and should be evaluated independently.³²

On appeal, Anderson argues that Superior Court should have granted his severance motion because "there was a reasonable probability that substantial prejudice would result from joinder."³³ He contends that the four-factor analysis for review of a motion to sever weighed heavily in favor of severance. After reviewing those factors, however, we find that the Superior Court did not abuse its discretion when it denied Anderson's severance motion.

The first factor—problems involving a co-defendant's extra-judicial statements—did not weigh in favor of severance. Anderson points to a single statement when a witness, Dante Sykes, recalled speaking with White while he was waiting on Anderson to deliver heroin to Seaford:

The State: Did you ever deal directly with Frog [Anderson] yourself?

Sykes: Yeah, dealing with Bop [sic] [White] with the dope, at times specifically, he was waiting on the dope to get to send it down [to] Seaford, and he calling waiting for Frog to come with it ... waiting on Frog, he was taking long.³⁴

In Jenkins v. State ,³⁵ this Court held that the trial court should have severed the defendants when trying the co-defendants "together was, in effect, to try each upon the extra-judicial statement of the other."³⁶ Here, unlike in Jenkins , Sykes’ reference to White "waiting...