No. 129, 1999.Supreme Court of Delaware.Submitted: November 9, 1999.
Decided: December 16, 1999.
Court Below — Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. S98-08-0726, 0727 0728, 0729 and 0730.
AFFIRMED.
Before VEASEY, Chief Justice, WALSH, and HOLLAND, Justices.
RANDY J. HOLLAND, Justice
ORDER
This 16th day of December 1999, it appears to the Court that:
1) The defendant-appellant, Rique A. Reynolds (“Reynolds”) was charged with Robbery in the First Degree, Possession of a Deadly Weapon During the Commission of a Felony, Aggravated Menacing, Wearing a Disguise During the Commission of a Felony and Offensive Touching. Following a two-day jury trial in the Superior Court, Reynolds was found guilty, as charged, on all counts. Reynolds has raised one issue in this direct appeal.
2) Reynolds contends that he was denied a fair trial because, during the prosecutor’s opening argument, there was an insinuation that Reynolds had committed an uncharged crime of theft. According to Reynolds, this remark was without any subsequent foundation in the State’s evidence and improperly placed his character at issue. We have concluded that argument is without merit.
3) In relevant part, the record during the prosecutor’s opening remarks, reflects the following:
Prosecutor: . . . . [Yolanda Smack] gave the police some real interesting information. The evidence will show that at that time when she was interviewed on Monday, August 24, 1998, she told them that he had worked at Townsends and he had been terminated and that she had found $20 missing from her purse or pocketbook.
Defense Attorney: Objection. May we approach?
The Court: You may approach.
Defense Attorney: It’s getting into an area of an uncharged offense. If there was some issue where he owed her money or something, if he borrowed money and didn’t pay her back, but the inference is that he stole money from the girlfriend. That is an uncharged offense that we are not here for. He automatically casts my client in a bad light with the jury.
Prosecutor: He comes back later and he comes later in the morning, which [sic] she is gone from 9:30 to 11:30. When she comes back at 11:30, she says he gives her the $20 and that’s what I’m trying to point out.
The Court: Your objection is overruled. You may proceed.
* * *
Prosecutor: Thank you. What you are going to find out is that she told the police: Yes, she left that house at about 9:30 that morning and the defendant was home there alone and his car, the silver/gray Dodge Daytona was there. She tells the police that that car, when she left him home alone, was parked on the side of the house. On the side of the house, fully visible to the road. But when she got home, that car was parked all the way around behind the house. So that car had gone somewhere. Furthermore, she tells the police that he gave me the $20 that I told him he owed me. He gave me the $20 and that was when she came home at about 11:30. She had left at 9:30. She came home at 11:30 and the car had been moved. He had money to pay her. This robbery happened at 10:00 a.m. The car, the evidence will show that this is the car used in the robbery with the exact tag on it.
4) When Reynolds’ girlfriend, Yolanda Smack, was interviewed on Monday, August 24, 1998, she told Detective Maher she found $20 missing from her purse several days before the robbery. She informed Detective Maher that when she asked Reynolds about the missing $20, Reynolds admitted taking the money but said that he would give it back to her. She also told Detective Maher that Reynolds gave her $20 at about 11:30 a.m. on the day of the robbery. At trial, she did not deny making these prior out-of-court statements to the police. She did testify, however, that she later discovered the $20 she thought was missing behind her driver’s license in her wallet.
5) The record reflects the prosecutor did not state in his opening argument that Reynolds stole money from his girlfriend. The prosecutor told the jury that the State would prove that Reynolds’ girlfriend found $20 missing from her purse and Reynolds subsequently gave her twenty dollars. Even when Reynolds’ girlfriend thought he had taken the $20 from her purse, she did not refer to that act as a theft.
6) The fact that $20 was missing from Reynolds’ girlfriend’s purse and the timing of when Reynolds later gave her $20 was significant to the State’s case. Reynolds had lost his job, apparently did not have $20 to give her on the morning prior to the robbery, and about ninety minutes after the robbery occurred, gave his girlfriend $20. The State argued this was part of its circumstantial evidence of Reynolds’ identity as the perpetrator of the robbery.[*] The prosecutor’s closing argument reflects this evidence was introduced for that purpose:
What other factors corroborate that it was Rique Reynolds that did this? Well, a lot of this comes from Yolanda Smack. She tells us — tells Detective Maher, from the evidence that you have heard, that she left the house with her mother at 9:30 and Rique Reynolds was there alone. Before she left she was talking to him about wanting the $20 that was missing from her purse. He didn’t give her the $20 at 9:30 before she left with her mother. She also says he was terminated from Townsends. But when she comes back home at 11:30 — it’s very important, ladies and gentlemen, there is a couple of things that happen that link him and corroborate that he’s the one that is using that car that was used in this robbery — number one, he had the $20 to give her at 11:30. If he had money from his final pay check or whatever that he got at Townsends at 9:30 when they are discussing this, why didn’t he give her the $20 then? It’s when she comes back at 11:30, he’s got money then. And do you know where the money came from? Nancy Jester’s cash register. That’s where it came from, because he didn’t have it at 9:30 regardless of whether he got a final pay check from Townsends on Friday or whenever he got it, whether he spent it Friday night or threw it away, he didn’t have the $20 to give her at 9:30 from the evidence, but he had it at 11:30. That’s the first thing.
7) Contrary to Reynolds’ contentions, the prosecutor’s opening statement was supported by evidence that was subsequently introduced. Neither the prosecutor nor Reynolds’ girlfriend characterized Reynolds’ act of taking the $20 from her purse as larceny. To the extent that action could arguably be construed as either the uncharged crime of theft or a “bad act,” it was properly admitted as circumstantial evidence of Reynolds’ identity as the robber.
NOW, THEREFORE, IT IS HEREBY ORDERED, that the judgment of the Superior Court is AFFIRMED.
(1998).