IN THE SUPREME COURT OF THE STATE OF DELAWARE ALVIN L. DRUMMOND, § § No. 532 ...

17 Pages·2003·0.03 MB·English

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ALVIN L. DRUMMOND, §
§ No. 532, 2002
Defendant Below, §
Appellant, § Court Below–Superior Court
§ of the State of Delaware, in
v. § and for Sussex County in
§ IS01-11-0461 - 0464; IS01-
STATE OF DELAWARE, § 11-0468 - 0471; IS01-11-
§ 0473 - 0476; IS01-12-0768,
Plaintiff Below, § 0769; IS01-12-0773 - 0779;
Appellee. § IS-01-12-0707 - 0718.
§
§ Def. ID No. 0111006853

Submitted: June 4, 2003
Decided: October 2, 2003

Before VEASEY, Chief Justice, HOLLAND and STEELE, Justices.

O R D E R

This 2nd day of October 2003, upon consideration of the appellant’s brief
filed pursuant to Supreme Court Rule 26(c), his attorney’s motion to withdraw,
and the State’s response thereto, it appears to the Court that:
(1) On July 1, 2002, after a five-day trial, Alvin L. Drummond was
convicted by a Sussex County Superior Court jury of one count of Attempted
Murder in the First Degree, eights counts of Robbery in the First Degree, one
count of Burglary in the First Degree, three counts of Kidnapping in the Second
Degree, four counts of Aggravated Menacing, one count of Conspiracy in the
Second Degree, one count of Wearing a Disguise During the Commission of a
Felony, one count of Possession of a Firearm by a Person Prohibited, and thirteen
counts of Possession of a Firearm During the Commission of a Felony.
Drummond was sentenced on August 23, 2002, to life imprisonment plus ninety-
six years. This is Drummond’s direct appeal.
(2) Drummond’s counsel has filed a brief and a motion to withdraw
pursuant to Rule 26(c). The standard and scope of review applicable to the
consideration of a motion to withdraw and an accompanying brief under Rule
26(c) is twofold. First, the Court must be satisfied that defense counsel has made
a conscientious examination of the record and the law for claims that could
arguably support the appeal. Second, the Court must conduct its own review of
the record and determine whether the appeal is so totally devoid of at least
arguably appealable issues that it can be decided without an adversary
presentation.1
(3) Drummond’s counsel asserts that, based upon a careful and complete
examination of the record, there are no arguably appealable issues. By letter,
Drummond’s counsel informed Drummond of the provisions of Rule 26(c) and
provided him with a copy of the motion to withdraw, the accompanying brief and

1Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin,
486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).

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the complete trial transcript. Drummond was also informed of his right to
supplement his attorney’s presentation. Drummond responded with a brief that
raises three issues for this Court’s consideration. The State has responded to the
position taken by Drummond’s counsel as well as to the issues raised by
Drummond and has moved to affirm the Superior Court’s judgment.
(4) The evidence at trial established that on Friday, November 9, 2001,
at approximately 11:00 p.m., Valerie Harmon’s home in Frankford, Delaware was
invaded by a masked man who robbed at gunpoint Harmon and her family2 and a
visiting neighbor, Conswella Ayres. At the same time that the masked man was
robbing the occupants inside of Valerie Harmon’s house, two other unmasked
men, who were also armed with guns, were robbing other Harmon family
members and friends who were playing cards and socializing in Harmon’s garage.
After robbing Harmon and the others inside of the house, the masked man forced
everyone from the house and into the garage where they joined the other robbery
victims who had been forced by the two unmasked robbers to lie face down on the
garage floor.
(5) Soon after the masked man forced the occupants of the house to join
those in the garage, a vehicle drove into the Harmon driveway. A passenger,

2Family members in the house included Valerie Harmon’s seventeen year-old son, eleven-
year old daughter, and seven year-old granddaughter.

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Thomassena White, who lived at the Harmon residence and who was returning
home from work, got out of the car intending to go into the house. As she
approached the house, however, Ms. White was accosted from behind by the
masked man, who forced her to go to the garage. The masked man then
approached the vehicle that was still parked in the Harmon driveway. The masked
man opened the driver’s door and, after a brief exchange of words with the driver,
shot several times at point blank range, hitting the driver, Travis White, in the leg.
A third person in the car, Tyrone Brackett, jumped from the car and ran.
(6) Upon hearing the gunshots, the two unmasked robbers fled the
garage, and the area, on foot, disposing of their guns in the woods. They were
apprehended by police ninety minutes later. Drummond was arrested two days
later on November 11, 2001.
(7) Numerous witnesses testified at Drummond’s trial as to the events of
November 9, 2001. One of the witnesses was nineteen year-old Brandon Gibbs,
who was one of the two unmasked men who had robbed the occupants of Valerie
Harmon’s garage. Gibbs testified that Drummond was the masked man who
robbed the occupants of Harmon’s house.
(8) Gibbs testified that Drummond, who was driving, and another man,
Mark Tingle, picked him up in Seaford at around 9:00 p.m. on November 9, 2001.
Gibbs had a handgun in his possession. According to Gibbs, Drummond, Gibbs,

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and Tingle, went to Conswella Ayres’ house,3 that was located down the street
from Valerie Harmon’s house, where Drummond used the telephone. Drummond
then drove Gibbs and Tingle to the Harmon residence and parked alongside the
road in a wooded area a short distance from the house. Gibbs testified that
Drummond gave Tingle a handgun and instructed Gibbs and Tingle to go to
Harmon’s garage and rob everybody there while Drummond went to the house.
Then, according to Gibbs, Drummond removed a mask from the trunk of his car,
put the mask on, and all three men walked toward the house and the garage.

3Conswella Ayres is the mother of two of Drummond’s children.

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(9) As instructed by Drummond, Gibbs and Tingle went inside the
garage. Once there, they threatened the occupants with handguns and removed
from them money, cell phones and, in one case, a buck knife. Approximately
twenty minutes later, after hearing gunshots, Gibbs and Tingle ran from the garage
and looked for Drummond’s car, but the car was gone. Gibbs and Tingle then
began walking, throwing their guns away in the woods. Ninety minutes later, they
were picked up by the police and questioned about the robberies.4
(10) On appeal, Drummond has raised three issues for this Court’s
consideration. Drummond claims that (i) he was prejudiced by misstatements
made by the prosecutor during the State’s closing and rebuttal arguments, (ii) the
trial court abused its discretion when it admitted Conswella Ayres’ out-of-court

4Gibbs and Tingle were charged with numerous offenses stemming from the incident on
November 9, 2001. Gibbs pled guilty on June 10, 2002, to one count of Robbery in the Second
Degree and one count of Possession of a Firearm During the Commission of a Felony. State v.
Gibbs, Del. Super. Ct., No. 0111006859, Graves, J. (June 10, 2002). As part of his plea
agreement, Gibbs agreed to testify at Drummond’s trial. At the time of Drummond’s trial, Gibbs
was awaiting sentencing. Tingle, who refused to testify at Drummond’s trial, was found guilty of
eleven charges stemming from the robberies and was sentenced. His conviction and sentence were
affirmed on direct appeal. Tingle v. State, 2003 WL 141269 (Del. Supr.).

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taped statement, and (iii) he was denied effective the assistance of counsel.
Drummond’s claims are without merit.
(11) Drummond cites to several excerpts from the prosecutor’s closing
and rebuttal arguments that, according to Drummond, misstate the testimony at
trial. Specifically, Drummond complains that the prosecutor (i) misstated the time
of the robbery, (ii) misstated a witness’ testimony about the time of the robbery,
(iii) mischaracterized a witness’ testimony about the position in which the get-away
car was parked, and (iv) misstated that one of the robbers wore gloves. None of
the prosecutor’s statements were objected to at trial.
(12) We review the prosecutor’s uncontested misstatements for plain
error.5 In this case, to constitute plain error, the prosecutor’s misstatements, either
individually or cumulatively, must have been so clearly prejudicial to substantial
rights as to jeopardize the fairness and integrity of Drummond’s trial.6 Indeed, the
prosecutor’s misstatements “must be so clear and defense counsel’s failure to

5Derose v. State, ___A.2d___, 2003 WL 21998576 (Del. Supr.); Warren v. State,
774 A.2d 246, 255 (Del. 2001); Del. Supr. Ct. R. 8.
6Derose v. State, ___A.2d___, 2003 WL 21998576 (Del. Supr.).

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object so inexcusable that a trial judge, in the interest of fundamental fairness, has
no reasonable alternative than to intervene sua sponte and declare a mistrial or
issue a curative instruction.”7

7Id. (quoting Trump v. State, 753 A.2d 963, 964 (Del 2000)).

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(13) Drummond claims that the prosecutor misstated or misrepresented
the time of the robberies when he stated, first, in his opening statement, that the
robberies took place at “approximately 11:00, 11:30 at night,”8 and later, in his
closing statement, that the masked individual entered the Harmon residence “at
10:30 -- approximately 10:00.”9 Contrary to Drummond’s contentions, however,
these contrasting statements did not misstate or misrepresent the evidence. There
were numerous witnesses to the robberies on November 9, 2001. The witnesses’
estimates of the time that the robberies took place were imprecise, but they were
mostly in the 10:00 to 11:00 p.m. range.
(14) Second, Drummond complains that the prosecutor misquoted
Brandon Gibbs’ testimony with respect to how the get-away car was parked. It is
true that in his closing argument, the prosecutor mistakenly stated that Gibbs had
testified that the get-away car was parked head out.10 The misstatement was not,
however, so clearly prejudicial to substantial rights as to jeopardize the fairness and
integrity of the trial. Whether the get-away car was parked head in, head out, or

8Tr., Vol. E, at 5 (July 1, 2002).
9Id. at 17.
10Gibbs had actually testified that the car was parked alongside the road. When the
prosecutor asked Gibbs whether the car was “backed in so the headlights were facing the road or
was front in,” Gibbs testified that he could not recall. See Tr., Vol. C., at 135 (June 26, 2002).

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alongside the road, the thrust of Gibbs’ testimony about the car was that it was
gone when he went to look for it after he fled Valerie Harmon’s garage.
(15) Similarly, Drummond complains that the prosecutor in rebuttal
argument stated that the masked individual wore gloves when the record did not
support such a statement. Drummond is correct that the record does not support
the prosecutor’s statement that the masked individual wore gloves; however, the
prosecutor’s misstatement was not so clearly prejudicial to substantial rights as to
jeopardize the fairness and integrity of the trial. The presence or absence of gloves
worn by the masked robber was of no apparent consequence to the case.
(16) Finally, Drummond complains that the prosecutor misrepresented a
witness’ testimony as to the time of the robbery. In his rebuttal argument, the
prosecutor stated that Sol Feliciano, a defense alibi witness, “testified repeatedly”
as to the time of day, i.e., “11:00 [p.m.],” that Drummond was at her home in
Georgetown.11 Although Feliciano did testify that Drummond arrived at her
apartment in Georgetown “a little after 11:00,”12 the transcript reveals that
Feliciano testified repeatedly as to the date, i.e., “November 11,” of Drummond’s
visit, and not the time, as stated by the prosecutor.13

11Tr., Vol. E, at 53 (July 1, 2002).
12Tr., Vol. D, at 35 (June 27, 2002).
13The transcript reveals that Drummond’s defense counsel initially misstated the date when

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