Burrell v. State

1

TREVIE BURRELL, Defendant Below, Appellant, v. STATE OF DELAWARE, Appellee.

No. 282, 2023

Supreme Court of Delaware

December 2, 2024

Submitted: September 4, 2024

Court Below: Superior Court of the State of Delaware Cr. ID No 2107007983

Upon appeal from the Superior Court of the State of Delaware. AFFIRMED.

Herbert W. Mondros, Esquire, RIGRODSKY, P.A., Wilmington Delaware, Karl Schwartz, Esquire, (argued) WISEMAN & SCHWARTZ, LLP, for Appellant Trevie Burrell.

Kathyrn J. Garrison, Esquire, Delaware Department of Justice, Wilmington, Delaware, for Appellee State of Delaware.

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW, and GRIFFITHS, Justices, constituting the Court en Banc.

LEGROW, JUSTICE

Trevie Burrell appeals his convictions for first-degree murder, possession of a firearm during the commission of a felony ("PFDCF"), and possession of a firearm by a person prohibited ("PFBPP"). Burrell raises three issues on appeal. First, he contends that a series of prison communications were improperly admitted against him after the Superior Court found clear and convincing evidence of a conspiracy between Burrell and an inmate who contacted key witnesses shortly before trial in an attempt to convince them to not implicate Burrell. Second, he argues that the Superior Court's exclusion of information about another shooting hampered his ability to mount a defense and that redactions of that evidence from a video statement played during trial confused the jury. Third, Burrell argues for the first time on appeal that the Superior Court's pattern jury instruction defining reasonable doubt is unconstitutional because it improperly lowers the State's burden of proof to a clear and convincing evidence standard. For the reasons set forth below, we find no merit to Burrell's arguments and affirm his convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 10, 2017, Wilmington police officers were called to a shooting on the 200 block of North Rodney Street in Wilmington.^[1] There, they found Lionel Benson unresponsive and suffering from a gunshot wound to his neck.^[2] Benson survived but was rendered a paraplegic.^[3] He died eight months later as a result of treatment relating to his condition.^[4]

A. The police investigation

Police found no eyewitnesses at the scene of the shooting, although two people had called 911 to report it.^[5] Detective Mackenzie Kirlin received information from sources who put two men at the scene: Edwin Cabrera and Andre Church.^[6] She interviewed Church two days after the shooting, on December 12, 2017, when he came into Probation and Parole for a scheduled visit.^[7] At trial, Detective Kirlin read a report of that interview in which Church stated he was with Benson when "Trev" walked up dressed in all black and shot Benson from behind.^[8] Detective Kirlin eventually identified "Trev" as the defendant, Trevie Burell.^[9]

Fifteen months later, on March 12, 2019, Church and his father were arrested on unrelated gun and drug charges.^[10] Church offered to give police information on three shootings-one of which was the Benson shooting-in the hopes of receiving leniency on the new charges.^[11] In this second interview with Detective Kirlin, Church added details to his previous statement implicating Burrell, including: how many shots Burrell fired, what Burrell was wearing, and where Burrell fled after the shooting.^[12] Church stated that he recognized Burrell's gun as one that had been taken from Church when Church was shot on a prior occasion.^[13] Church also told police that Cabrera was present at the shooting scene.^[14] Finally, Church identified Burrell in a six-photo line-up.^[15]

When Detective Kirlin interviewed Cabrera two months later, Cabrera corroborated Church's statements.^[16] During this interview, Cabrera stated that he was standing outside with Church and Benson when "Trev" walked up to Benson and shot him in the head.^[17] Cabrera also identified Burrell in a six-photo line-up.^[18]

B. The prison communications

Burrell was indicted in July 2021.^[19] A protective order entered by the Superior Court barred his counsel from disclosing the identity of trial witnesses, including Church and Cabrera.^[20] The Superior Court lifted that order on March 29, 2023, five days before trial.^[21] Over the course of the next two days, Dilip Nyala, an inmate housed with Burrell at James T. Vaughn Correctional Center, made three phone calls and sent a tablet message attempting to reach out to Church.^[22]

In the first call, on March 30 at 8:46 p.m., Nyala called his son in order to identify people who could connect Nyala to Church "like tonight or by tomorrow."^[23] Nyala disclosed, "You know, the [boy or bull] sent me a message in the back, he like yo, he go to trial on Monday."^[24] Nyala later clarified that the person who sent the message was "Hurky Rock," which Burrell admitted was one of his nicknames.^[25] Nyala identified Church's brother, Darius, as a potential point of contact and instructed his son to "send him a message, tell him you need Hoov's number [Church's nickname is Hoov],^[26] tell him you're my son."^[27] Nyala later said that he was "trying to help him out, but m***f*** just sent me the message like yo tell him, I'm like I don't talk to him."^[28]

Nyala then told his son, "Somebody came, was like, yo, blah blah blah, was like yo, tell 'em stand down, and I was like well I'll try to send the message out, so that's why I called you back to back to back."^[29] Nyala's son then put another unknown person on the line, and Nyala told him: "Yo, Hurky Rock sent me the message. I need you to get with Shaq."^[30] A little later in the call, Nyala said that "I don't know what's what, but not my business, you know what I'm saying . . . I'm just trying, you know, look out for the bull, cuz that's a guaranteed elbow, ain't nobody trying to get that."^[31]

Just over an hour later, Nyala sent a tablet message to Brittany Winder that read, "Hoov telling on Trev, Shaq ain't even try to talk him out of it. He facing the long haul."^[32]

Nyala made a second call to his son the following afternoon. Church, who was at work, was brought onto the call and spoke with Nyala:

Nyala: Bull sent a message, I ain't, you know, I can't do too much, you know what I'm saying, but uh ....

Church: Hey man . . . (laughter) they making me go because of my probation, right?

Nyala: Yeah.

Church: But they can't control what I say.

Nyala: Um, OK. All right.

Church: All right?

Nyala: Yeah, yeah, yeah, yeah.^[33]

Nyala made his final call that evening, during which he talked for four minutes to an unidentified person. During that call, the following exchange took place:

Nyala: You know, Hurky Rock^[34] start trial Monday.

Speaker: Well, I already know about that.

Nyala: Yeah, I didn't know till, he had sent me a message. And I was like, uh, I try to do what I can do for you by reaching out, but uh, you know, he was like, yo, tell, and I was like, yo, I don't talk to him.

Speaker: Tell who?

Nyala: Uh, you know, I don't want to say it on this phone.

Speaker: Oh, the [Bull or boy]?

Nyala: Yeah, yeah. So, I was like yo, I don't talk to him, but I try and get in contact with Keen and Shaq to see what, you know,

Speaker: They ain't messing with that [fool, boy, or bull].

Nyala: I'm just saying, you know, if they could make a difference. Speaker: (Inaudible). It's crazy man, (inaudible) only thing we can do is get a message.

Nyala: Well, it just so happened, I shot the message to his brother, I got my son to hit his brother, so I was like, uh, I ended up talking to him today.

Speaker: Uh huh.

Nyala: And he was like, he said they making him go, he said but they can't control what he say when get there, so.

Speaker: (Inaudible and cross talk).

Nyala: I'm like, bull shot, you know, I told him, like yo, he shot me a message, I said man, I don't, you know.^[35]

After the pair discussed the date of trial, the conversation resumed:

Nyala: It's not just him, though. No, it's the other [Bull] too.

Speaker: (Inaudible).

Nyala: But they say he, that the boy like recanted his shit so, I don't know.

Speaker: But the lawyers will wear that out.

Nyala: No, not (inaudible), the other one, the second, you know.

Speaker: Yeah, well, the second too, because they got a motive.

Nyala: Naw, the second dude ain't got no motive. He just, you know, he just said he said it because the one dude told him to.

Speaker: But that's what I'm saying. He just coming out willy-nilly saying that.

Nyala: Well, you know, he was there, you know what I'm saying, but, you know, he's saying he only said it cuz bull told him to say it so, I don't know, it's just what it, you know.

Speaker: Well, we got to find out.

Nyala: Yeah.

Speaker: We got to find out because everything start on Monday.

Nyala: Yeah, I said what all I could say.^[36]

C. The Superior Court's pretrial rulings regarding the admissibility of the witnesses' statements

The Superior Court held a pretrial conference on March 29, 2023, to determine whether and to what extent Church or Cabrera's recorded interviews would be admissible as substantive evidence under 11 Del. C. § 3507 if either witness was uncooperative at trial.^[37]

Among the issues that the court considered were Church's statements regarding an incident in which he was shot. Church identified who shot him and the circumstances surrounding the shooting. The Superior Court did not think that the name of the person who shot Church in the past was relevant, and defense counsel agreed:

THE COURT: Doesn't the fact that he got shot also go to his credibility in terms of why he's doing what he's doing?

[Defense counsel]: Well, I think it can cut both ways, Your Honor. I think-

THE COURT: I do too. I'm

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