Jordan v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

SEAN JORDAN, §
§ No. 492, 2019
Defendant Below, §
Appellant § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Case No. 1810005053
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellees. §

Submitted: August 5, 2020
Decided: September 22, 2020

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

ORDER

This 22nd day of September, 2020, upon consideration of the parties’ briefs

and the record on appeal, it appears to the Court that:

(1) Sean Jordan appeals his convictions in the Superior Court on several

drug and firearm-possession charges, arguing that the Superior Court abused its

discretion when it refused to admit his co-defendant’s plea agreement and blocked

him from presenting evidence relating to the grand jury indictment process.

(2) On October 9, 2019, Wilmington Police received a 911 call reporting

drug activity at 2206 Spruce Street in Wilmington. When the police officers arrived

at the scene, they saw Jordan and his co-defendant Terrance Crosby in front of 2204
Spruce Street, a condemned residence owned by Eleanor Flemming. There was no

residence at 2206 Spruce Street.

(3) Jordan was sitting in a folding chair near a car parked in front of the

condemned residence, while Crosby was sitting on a stool just near its front porch.

A white plastic bag—later found to contain, among other things, a handgun—rested

on the ground near Crosby’s stool.

(4) The police officers questioned and requested identification from both

Jordan and Crosby. After verifying Crosby’s identity, the officers discovered that he

was wanted on an outstanding warrant. Crosby, who was in earshot of the officers,

grabbed the white plastic bag and attempted to walk away. The police officers

detained him and, upon searching the white plastic bag, found “a package of candy,

a box of condoms and a loaded Smith & Wesson handgun.”1 As the police officers

took Crosby into custody, Crosby said, “Everything in that bag is mine. It has

nothing to do with him.”2 The officers arrested both Crosby and Jordan.

(5) Upon questioning, Jordan told the officers that he was watching the

condemned residence for its owner, Eleanor Flemming. When the police asked

Flemming if they could search the dwelling, she consented. During the search, the

police discovered a bag on the floor that contained wrapping paper, other material

1
App. to Opening Br. at A085.
2
Id. at A168.
2
for wrapping Christmas presents, 273 bags of heroin, 29 vials containing heroin, a

box containing plastic baggies, a razor blade, and a digital scale. Flemming said that

the Christmas bag and wrapping materials belonged to her, but disclaimed ownership

of the heroin and the digital scale.

(6) The police officers also requested and received consent from Crosby to

search his blue pickup truck, in which the officers discovered a black digital scale

and additional heroin.

(7) The police officers then obtained a search warrant for Jordan’s car and

searched it, discovering a small glass jar with marijuana inside, a silver metal

grinder, a black digital scale, and $914.

(8) After arresting Jordan, the police officers also seized the two cell

phones in Jordan’s possession and extracted the text messages from them. Detective

Alexis Schupp, a detective assigned to the Wilmington Police Department’s Drugs

and Organized Crime Division, testified that many of the text messages used

language that was consistent with how drug sales are conducted. Schupp also

testified that drug dealers frequently “switch out phones . . . [after] two weeks, a

month, in order to keep police off their trail . . . .”3 The earliest text message

recovered from one of Jordan’s phones was on September 28, 2018—two weeks

before Jordan was arrested.

3
Id. at A462.
3
 (9) Throughout this entire process, Jordan consistently stated that he was

watching 2204 Spruce Street for Flemming, that he did not know what Crosby had

in the white plastic bag, and that he did not own the handgun found in that bag. The

police did not find any fingerprints on the handgun. Jordan voluntarily provided a

DNA sample, and forensic testing results, which were returned on February 1, 2019,

showed that Jordan’s DNA was on the trigger of the handgun.

(10) Jordan was charged with drug dealing offenses, possession of

marijuana, possession of drug paraphernalia, and loitering. On December 3, 2018, a

grand jury indicted Jordan on drug possession charges (drug dealing (tier 2),

aggravated possession of a controlled substance, possession of drug paraphernalia),

loitering, and firearm charges (possession of a firearm during the commission of a

felony, carrying a concealed deadly weapon, possession of a firearm by a person

prohibited, and possession of ammunition by a person prohibited). Jordan filed a

motion, which the trial court granted, to sever the last two charges (referred to as the

“B charges”) from the other charges (the “A charges”) of the indictment.

(11) Trial on the A charges was held on May 15 through May 20, 2019.

During his opening statement, Jordan drew attention to the fact that he was indicted

on the firearm charges before the forensic evidence showing his DNA on the

handgun’s trigger had come back; specifically, the grand jury indictment occurred

on December 3, 2018 while the DNA test results came back on February 1, 2019. On

4
May 16, Jordan questioned the State’s first witness—one of the police officers that

arrested Jordan—about the grand jury indictment process and when Jordan was

charged with the firearm-related crimes. The State objected on relevance grounds

and filed a motion in limine that night. The next day, the court ruled that, while the

dates of each event could be stated, Jordan could not ask the jury to use those dates

to draw an inference that the grand jury indictment was flawed nor could he continue

questioning witnesses to elicit evidence supporting that inference.

(12) Additionally, before Jordan’s trial, Crosby had pleaded guilty to

possession of a firearm by a person prohibited, but, as of Jordan’s trial, he had not

yet been sentenced. Jordan sought to introduce evidence of Crosby’s guilty plea.

The Superior Court refused to admit the plea agreement, noting that the record did

not show that, when entering the guilty plea, Crosby had admitted to exclusive

possession of the firearm.

(13) On May 22, the jury found Jordan guilty of carrying a concealed deadly

weapon, drug dealing, aggravated possession, possession of a firearm during the

commission of a felony – drug dealing; possession of a firearm during the

commission of a felony – aggravated possession; possession of drug paraphernalia,

and loitering for drug activity. The B charges were tried on May 22, and the jury

returned guilty verdicts on both of the B charges on that date.

5
 (14) On appeal, Jordan argues that the Superior Court erred by: (1) refusing

to admit Crosby’s plea agreement, and (2) refusing to allow Jordan to introduce

evidence—specifically, evidence regarding when he was indicted on the firearm

charges vis-à-vis when the State received the DNA test results—to challenge the

grand jury indictment.

(15) We review evidentiary rulings for abuse of discretion.4 If we conclude

that there was an abuse of discretion, we then ask “whether the error rises to the level

of significant prejudice which acted to deny [the accused] a fair trial.”5

(16) When the Superior Court disallowed Jordan’s bid to admit evidence of

Crosby’s guilty plea to a charge of possession of a firearm by a person prohibited,

critical to the court’s reasoning was that Crosby and Jordan were alleged to have

been in joint possession of the firearm.6 And while Crosby’s plea could “be taken

as an admission of [his] guilt, . . . it [could not] be construed as exonerating. . . Jordan

of [his] possession charges.”7 This analysis represents a faithful application of our

holding in Potts v. State,8 in which the defendant sought to admit the guilty pleas of

his co-conspirators, all of whom were jointly charged with possession of certain

items. We held in that case that the guilty pleas were not exculpatory in nature—

4
Allen v. State, 878 A.2d 447, 450 (Del. 2005).
5
Seward v. State, 723 A.2d 365, 372 (Del. 1999).
6
See Counts I, IV, and V of the indictment. App. to Opening Br. at A20-A22.
7
Id. at A560.
8
458 A.2d 1165, 1169 (Del. 1983).
6
and were therefore not relevant to Potts’s possession charges—because the guilty

pleas did not amount to confessions to exclusive possession of the prohibited items.

(17) Likewise here, Crosby’s plea agreement did not establish that Crosby

had admitted to exclusive possession.9 Thus, the Superior Court did not abuse its

discretion by concluding that the plea agreement was not probative of whether

Jordan also possessed the gun. Finally, even if, as Jordan argues, the guilty plea is a

statement against interest and admissible under D.R.E 804(b)(3), that rule is

subordinate to D.R.E. 402, the paramount rule that evidence that is not relevant is

inadmissible.

(18) What is more, even if we were to conclude that this ruling was an abuse

of discretion, the error would be harmless. The jury had already heard, through the

testimony of one of the arresting officers, that Crosby had made the unsolicited

comment at the scene that “[e]very thing in the bag is mine. It has nothing to do

with [Jordan].”10 In that respect, the plea agreement was cumulative.

(19) Jordan’s second argument on appeal is puzzling; as summarized in

Jordan’s brief, it is that “the Superior Court committed an abuse of discretion when

it ruled mid-trial that Mr. Jordan could not present further evidence or argument

9
App. to Opening Br. at A493–94 (“Well, we don’t have a transcript of the plea. I don’t know how
detailed it was, or if anything was said as to exclusivity.”).
10
Id. at A168.

7
referring to the date and charges at his arrest, the date and charges at his indictment,

and the fact that he was indicted on the new firearms charges prior to the State’s

receipt of the DNA analysis results.”11

(20) Jordan’s counsel, in opening statement, had explained the chronology

of events following his arrest, emphasizing the timing of certain events to the jury

and attempting to use the chronology to create an inference of impropriety in the

indictment process. Jordan noted that he and Crosby were arrested on October 9,

2019, the gun was swabbed for DNA on October 18, and the DNA samples were sent

for forensic comparison on November 21. He also explained that the grand jury

indicted Jordan on December 3, for both drug dealing and firearm charges, but

emphasized that, at the time of the indictment, the DNA analysis had not yet been

received by the State. Specifically, Jordan told the jury that “what happened . . . on

December 3rd, [was that Jordan] was formally charged not just with the drug dealing,

. . . he was charged with Carrying a Concealed Weapon. He was charged with

possessing the weapon by a person prohibited, when there was no DNA hit, no link.

The only real evidence was the statement, Terrance Crosby, saying [‘]everything in

the bag is mine it’s got nothing to do with him.[’]”12 The State did not object to this

explanation.

11
Opening Br. at 20.
12
App. to Opening Br. at A67.
8
 (21) On the second day of trial, however, Jordan questioned the first trial

witness—a police officer—about the grand jury indictment process. This time, the

State made a relevance objection regarding questions about the grand jury

indictment and, later that night, filed a motion in limine. The court granted the

motion in limine the next day.

(22) Jordan’s concerns appear to be three-fold: first, that the State’s

objection and motion in limine were untimely; second, that the court’s ruling

precluded his exploration of the chief investigating officer’s belief at the time of

arrest that a magistrate might not find probable cause for Jordan’s arrest on the

firearm charges; and, third, that because of the ruling, Jordan was improperly

precluded from arguing to the jury that “the State’s conduct in how it obtained the

indictment was improper.”13

(23) Jordan offers no legal authority in support of this argument, and our

independent examination of his concerns persuades us that the Superior Court’s

ruling was not an abuse of discretion.

(24) First, the State’s objection was not untimely because it objected during

the questioning of the first witness at trial—that is, the first time evidence relating to

the grand jury indictment process was offered. Jordan’s argument—that the

objection was untimely because the State did not object during Jordan’s opening

13
Opening Br. at 28.
9
statement—is misguided; opening statements are not evidence. Indeed, the State’s

motion in limine and its objection were both directed at Jordan’s questioning of

witnesses, not at the strategy itself. Because the target of the State’s objection was

evidence—testimony elicited from a witness—and the opening statement did not

seek to introduce evidence on the same issue, the State’s objection was not untimely.

(25) Nor are we persuaded that Jordan’s line of questioning was meant to

elicit relevant evidence. Jordan does not explain, for instance, the relevance to his

guilt or innocence of the chief investigating officer’s purported belief that a

magistrate might have refused to issue a warrant on the firearms charges without the

DNA evidence, and we see none.

(26) To the extent that Jordan’s questions were meant to challenge the grand

jury indictment, his challenge is without merit. Indictments are accusations, not

evidence of guilt. Indictments themselves provide no evidence and do not prove

anything, and the Superior Court instructed the jury to that effect. More to the point,

the timing of the indictment in relation to production of the DNA results is not

probative of whether Jordan was, in fact, guilty or not guilty of the crimes for which

he was indicted. The Superior Court thus did not abuse its discretion in prohibiting

Jordan from questioning witnesses regarding the grand jury indictment process. That

process, in any event, was not challenged prior to trial. And as the Superior Court

10
correctly found, any challenge to the grand jury indictment process was therefore

waived under Delaware Superior Court Criminal Rule 12(b)(2).14

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

/s/ Gary F. Traynor
Justice

14
Del. Super. Ct. Crim. R. 12(b)(2) requires that “[d]efenses and objections based on defects in
the indictment or information” “must be raised prior to trial.”
11