Bailey v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

AHMIR BAILEY, §
§ No. 46, 2021
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ ID. Nos. K1805009348A & B
STATE OF DELAWARE §
§
Plaintiff Below, §
Appellee. §

Submitted: December 8, 2021
Decided: February 16, 2022

Before VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware, for
Appellant, Ahmir Bailey.

Kathryn J. Garrison, Esquire, State of Delaware Department of Justice, Dover,
Delaware, for Appellee, State of Delaware.

VAUGHN, Justice:
 The Appellant, Ahmir Bailey, appeals from Superior Court convictions of

Murder in the First Degree and related offenses. His sole claim is that the Superior

Court erred by refusing to admit into evidence a witness’s juvenile adjudication of

delinquency for Carrying a Concealed Deadly Weapon (“CCDW”), and the

witness’s probationary status resulting therefrom. This error, he claims, violated his

constitutional right to confront the witness. For the reasons that follow, we reject

Bailey’s claim and affirm the decision of the Superior Court.

FACTS AND PROCEDURAL HISTORY

This case arises from the murder of Jamier Vann-Robinson at an after-prom

house party in Dover, Delaware on May 12, 2018. On May 14, 2018, Bailey and

codefendant Eugene Riley were arrested in connection with the crime. Bailey was

indicted on 16 offenses, including Murder in the First Degree and Attempted Murder

in the First Degree. The charges against the defendants were severed so that each

could be tried separately. The following evidence was presented at Bailey’s trial.

Terrone White, who resided on Cubbage Pond Road in Lincoln, Delaware,

testified that his daughter, Caitlyn White, had a child with Bailey. White further

testified that two days before Vann-Robinson’s death, he noticed that his safe

containing “two nines and a .40”1 (referring to 9mm and .40 caliber firearms) was

missing. The safe was later found empty in the backyard of a neighboring home.

1
App. to Opening Brief at A415.
2
 The day before the shooting, a burglary was reported at Dick’s Sporting

Goods in Dover. Detective Ryan Schmid, the Chief Investigating Officer for the

homicide, testified that after Bailey and Riley were taken into custody, they

confessed to him that they had stolen 9mm and .40 caliber ammunition from Dick’s

Sporting Goods.

In the afternoon of May 12, 2018, the day of the murder, a resident of Cubbage

Pond Road reported to the police that there were youths firing guns into a field. The

responding officer noted a silver Chevrolet Cobalt parked along Cubbage Pond

Road. The car belonged to Twanicia Jones, and she testified to being Bailey’s

girlfriend at the time.

On the night of May 12, 2018, Xavier Gregory, a local DJ, threw an after-

prom party for high school students at his home in Dover. Bailey, Jones, and Riley

arrived at the party in Jones’s Chevrolet Cobalt. After Riley and Bailey exited the

vehicle, Vann-Robinson and Dominic Hurley, who attended the party with Vann-

Robinson, approached the vehicle and began flirting with Jones. Riley and Bailey

took exception to this, and words were exchanged between the parties.

Bailey and the State dispute what occurred next. Hurley testified that after

the exchange with Riley and Bailey, he and Vann-Robinson walked back to Vann-

Robinson’s car. When they arrived back at the car, he heard gunshots. In an

interview with Detective Schmid, Bailey claimed that after Vann-Robinson and

3
Hurley walked back to Vann-Robinson’s vehicle, Vann-Robinson reached into the

vehicle and took out and cocked a firearm. Bailey maintained that it was Riley who

shot Vann-Robinson with the 9mm handgun, and that Bailey merely fired a warning

shot into the air with the .40 caliber handgun—despite the fact that the police found

six expended .40 caliber shell casings at the scene. Bailey also claimed that he and

Riley acted in self-defense. The State claimed that Bailey shot Vann-Robinson in

the back with the 9mm handgun, and that the item Vann-Robinson went to retrieve

from the vehicle was a knife he kept in the car, not a handgun. Hurley testified

repeatedly that neither he nor Vann-Robinson had a handgun that night. However,

Hurley told police that Vann-Robinson was looking to fight, and that Vann-

Robinson did reach into the car and turn around to return to the confrontation.

Initially, Vann-Robinson thought that the shots had missed him, but, in fact, he was

shot multiple times in the back while at the driver’s side door.

Immediately after Vann-Robinson was shot, Hurley could not locate the keys

to the car, and by the time he did, police had arrived at the scene. Instead of engaging

with police, who were only feet away, Hurley decided he would drive Vann-

Robinson away from the scene. Hurley was apparently so quick to leave that he

drove away with Vann-Robinson in the driver’s seat of the vehicle and operated the

vehicle from the passenger side seat by reaching across to the vehicle’s controls.

Instead of taking Vann-Robinson straight to the hospital—a trip that would only take

4
a few minutes—Hurley made several stops along the way. He first stopped in a

parking lot by a Rite Aid to move Vann-Robinson from the driver’s seat to the back

seat. He then called his mother and asked her to meet him at Wawa. Hurley drove

to Wawa, but then eventually drove to the hospital where his mother met him. These

detours placed him at the hospital approximately one hour after leaving the scene of

the shooting. By that time, according to the emergency room trauma nurse, Vann-

Robinson was not breathing and did not have a pulse.

Hurley admitted that he took this circuitous route because he wanted to avoid

the police. When asked why he did not want to engage with police, he testified that

he was scared and that he did not want to get “stuck” at the hospital.2 Hurley testified

that the police repeatedly asked him if he or Vann-Robinson had a gun that night, to

which he always answered no.

Hurley’s web search history from the month of the shooting revealed that he

had searched for information on handguns. Hurley claimed to be doing research for

a rap song he was writing. It was also revealed that Hurley told police that Vann-

Robinson was considering obtaining a gun.

At the beginning of Hurley’s testimony, defense counsel indicated that he

wanted to present evidence of Hurley's juvenile record for CCDW in 2017 to

demonstrate that Hurley’s probationary status at the time may have factored into his

2
Id. at A804-05.
5
decision to avoid the police. Bailey also sought to admit this information to show

that Hurley was motivated to lie that neither he nor Vann-Robinson had a handgun

that night. The State objected to the introduction of Hurley’s prior adjudication,

citing Delaware Rule of Evidence 609(d), which generally forbids introduction of

prior juvenile adjudications.

The Superior Court determined that evidence of Hurley's juvenile

adjudication would not be admissible in Bailey's trial, pursuant to Rule 609(d).

When deciding whether to admit a juvenile adjudication for impeachment purposes,

the trial court must first consider whether a conviction for the offense would be

admissible to attack the credibility of an adult, and one of the factors involved in that

consideration is whether the crime is one involving dishonesty. The trial court first

found that CCDW was “not a crime of moral turpitude.”3 We interpret this statement

as a conclusion by the trial court that the crime of CCDW is not a crime involving

dishonesty. The court then asserted that the evidence of Hurley's juvenile record

was not “necessary for a fair determination of guilt in this case[,]”4 the second

element in a Rule 609(d) analysis. The court stated that Bailey had “other means”

at its disposal to “establish [his] defense” of self-defense.5 The court determined

that “evidence that [Hurley] was on probation is not pertinent, doesn’t seem to be

3
Id. at A718.
4
Id. at A718-19.
5
Id. at A719.
6
relevant to the issue, nor does it support, in my view, [defense counsel’s] theory.”6

At the crime scene, police retrieved shell casings from .40 caliber and 9mm

firearms. Detective Schmid testified that a .40 caliber handgun and ammunition

were found in Riley’s bedroom, and a 9mm magazine and ammunition were found

in Jones’s bedroom, where Bailey often stayed. The 9mm handgun was not

recovered, and Bailey told police that a friend of his sold the 9mm handgun the day

after the incident. A firearms expert testified that the bullets that struck Vann-

Robinson could have been fired from a 9mm firearm, but not from a .40 caliber

firearm. A DNA analysis of the grip and trigger of the .40 caliber handgun revealed

a mixed DNA profile consistent with three individuals, the major contributor being

Riley.

The jury was asked to return a verdict on ten counts. It found Bailey guilty of

Murder in the First Degree, Attempted Murder in the First Degree (the victim on this

count being Hurley), Possession of a Firearm During Commission of a Felony,

Shoplifting, and Conspiracy Third Degree. It found him not guilty of Burglary in

the Second Degree, three counts of Theft of a Firearm, and one count of Theft. By

stipulation, the charges of Possession of a Firearm by a Person Prohibited and

Possession of Ammunition by a Person Prohibited were severed and tried

concurrently as a bench trial. The court found Bailey guilty of those charges. Bailey

6
Id. at A720.
7
was sentenced to life imprisonment on the Murder in the First Degree charge, plus

18 years of unsuspended prison time for the remaining convictions. This appeal

followed.

STANDARD OF REVIEW

This Court reviews alleged constitutional violations arising from evidentiary

rulings de novo.7

DISCUSSION

Bailey’s sole claim on appeal is that his right to confrontation under the Sixth

Amendment of the U.S. Constitution was denied when the trial court excluded

evidence of Hurley’s juvenile adjudication for CCDW and his probationary status

resulting therefrom. Delaware Rule of Evidence 609(d) forbids the admission of

juvenile adjudications unless, in a criminal case, the evidence would be admissible

for challenging an adult witness’s credibility and is “necessary for a fair

determination of the issue of guilt or innocence.”8

In Davis v. Alaska,9 the U.S. Supreme Court addressed how courts should

balance the admissibility of juvenile adjudications and the requirements of the

Confrontation Clause. The Court found that the Confrontation Clause requires that

juvenile adjudications be admissible for making “more particular” attacks on witness

7
Stevenson v. State, 149 A.3d 505, 509 (Del. 2016).
8
D.R.E. 609(d).
9
415 U.S. 308 (1974).
8
credibility to “reveal[] bias, prejudices, or ulterior motives of the witness as they

may relate directly to the issues or personalities in the case at hand.”10

In Reid v. State,11 this Court recognized that Davis distinguishes between

evidence offered under Rule 609 to undermine credibility in a general sense, and

evidence that shows a bias and a motive to be untruthful about the facts and

circumstances of a specific case. The Confrontation Clause is not implicated where

juvenile adjudications are used for general impeachment, but it is where

“impeachment is used to establish specific bias.”12 Reid held that when a trial judge

is called upon to balance the Confrontation Clause and Rule 609(d), the judge should

ask whether the evidence of a juvenile adjudication is “(1) offered to show bias (i.e.,

the motive to lie in the specific case) and (2) important to the assertion of that bias.”13

This Court also stated that “[t]his second prong tracks the explicit requirement of

Rule 609(d) that evidence be ‘necessary for a fair determination of the issues of guilt

or innocence.’”14

Therefore, the first determination under a Confrontation Clause analysis is

whether the evidence of Hurley’s juvenile adjudication and probationary status were

offered to show a specific bias, or a motive to lie, as opposed to general

10
Id. at 316.
11
2005 WL 3272134 (Del. Nov. 30, 2005).
12
Id. at *4.
13
Id.
14
Id.
9
impeachment. Part of the defense’s theory of the case was that Vann-Robinson was

very aggressive and looking to fight that night. According to Bailey, Vann-Robinson

reached into the car and pulled out a handgun, prompting Bailey to fire a warning

shot into the air in self-defense. This theory is undermined by Hurley’s assertion

that neither he nor Vann-Robinson had a gun that night. Because of Hurley’s

probationary status for a prior CCDW adjudication, it is reasonable to conclude that

Hurley would have a motive to be untruthful about whether he or Vann-Robinson

was in possession of a handgun that night, if, in fact, either one of them did possess

a handgun that night. Therefore, we find that this case is one where the defendant

has shown that the proffered juvenile adjudication and probationary status were

offered to show a specific bias and motive to be untruthful in this case, as opposed

to impeachment, which undermines credibility only in a general sense.

The final determination is whether evidence of the juvenile adjudication is

“important to the assertion of that bias.”15 Bailey contends that this second prong of

the Reid test was not properly applied by the Superior Court, and that the court

incorrectly focused on whether the evidence of Hurley’s juvenile adjudication was

“necessary for a fair determination of guilt.”16 The relevant inquiry, Bailey argues,

15
Id.
16
At trial, Bailey’s attorney argued that Hurley’s prior juvenile adjudication and probationary
status should be admitted under Rule 609(d). He did not make a Confrontation Clause argument.
The trial judge focused on the argument that Bailey’s attorney made under Rule 609(d). We
normally review decisions to admit or exclude evidence under the rules of evidence for abuse of
discretion. The State has argued that plain error review should be applied because the
10
is whether the evidence is being used to show the witness’s motive to lie in the

specific case at bar. However, as we noted in Reid, the second prong of the Reid test

tracks the Rule 609(d) requirement that the evidence be “necessary for a fair

determination of the issue of guilt or innocence.” As pointed out by Bailey in his

Reply Brief, defense counsel made the same argument he does here: that the

“purpose of the evidence was to attack Hurley’s credibility, specifically Hurley’s

statement that he did not possess a gun on the night of the shooting.”17 Although

the trial court utilized the 609(d) standard, it considered the same arguments we see

here, and its finding that there were other means to support the defense’s theory

tracks the tests of the Confrontation Clause and Reid.

The trial court ruled that Bailey had other means, apart from Hurley’s juvenile

adjudication and resulting probationary status, to show that Hurley was motivated to

testify falsely that neither he nor Vann-Robinson possessed a firearm when Vann-

Robinson was killed. The other evidence included Hurley’s peculiar conduct after

the shooting. Despite the fact that Hurley and his seriously wounded friend, Vann-

Robinson, were only a few feet from a police vehicle that had arrived on the scene,

Hurley elected to drive away without making police contact because, as he said, he

Confrontation Clause argument was not expressly made below. Because we reasoned in Reid that
the “fair determination” clause in Rule 609(d) tracks the second prong of the Confrontation Clause
analysis, and we review constitutional claims de novo, we have applied de novo review in this
appeal.
17
Reply Br. at 1.
11
“was scared . . . [and] didn’t want to go to the police.”18 According to his testimony,

he stopped at a Rite-Aid parking lot to move Vann-Robinson to the back seat, after

which he went to a Wawa convenience store. From there, he called his mother using

his cell phone. It was only after speaking with his mother that he drove Vann-

Robinson to the hospital, arriving approximately one hour after the shooting. The

suspicious nature of Hurley’s conduct in departing from the scene of the crime gave

the defense an effective means of attacking Hurley’s credibility or probing for bias.

It created a jury argument, which defense counsel used in his closing, that Hurley

did not want the police to find a weapon or weapons in Vann-Robinson’s vehicle.

There was also evidence that Hurley was dishonest with the police by telling

them that his cell phone service had been disconnected, which was not true. In

addition, the police repeatedly questioned Hurley about handgun possession,

implying that they did not believe his account that neither he nor Vann-Robinson

had a firearm that night. Hurley had also conducted internet searches about weapons,

although he attributed that to music lyrics he was allegedly writing. There was also

evidence that Vann-Robinson had considered getting a handgun. This other

evidence is significant impeachment evidence that could be used to show that Hurley

had a specific motive to lie. Under these circumstances, we cannot say that the

evidence of Hurley’s juvenile adjudication and probationary status was of such

18
App. to Opening Br. at 804.
12
importance to Bailey’s claim of bias that the exclusion of the evidence violated the

Confrontation Clause.

CONCLUSION

For the foregoing reasons, the judgment of the Superior Court is

AFFIRMED.

13