Appiah v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KENNETH APPIAH, §
§ No. 30, 2020
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID. No. N1808022193
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: November 18, 2020
Decided: December 22, 2020

Before SEITZ, Chief Justice; VALIHURA, and MONTGOMERY-REEVES,
Justices.

ORDER

This 22nd day of December 2020, having considered the parties’ briefs and the

record below, it appears to the Court that:

(1) On January 10, 2020, a Superior Court jury found Kenneth Appiah

guilty of multiple felonies. A Superior Court judge sentenced him to 17 years in

prison followed by probation. In this appeal from his convictions, he raises two main

arguments - first, whether the Superior Court denied his constitutional right to

confrontation and a meaningful opportunity to present a complete defense; and

second, whether the Superior Court compromised his Sixth Amendment right to self-
representation by denying his requests for new counsel or self-representation. We

find no merit to his arguments and affirm his convictions.

(2) Aruna Kanu, his girlfriend Aimee Kamara, and their son rented an

apartment in Newark, Delaware. They sub-let a second bedroom in the apartment

to Appiah. Appiah paid Kanu a security deposit and received two keys to the

apartment. After living in the apartment for only two weeks of the agreed seven-

month rental term, Appiah told Kanu that he accepted a job in Philadelphia and left

the apartment. Kanu refused to return Appiah’s security deposit after Appiah moved

out. After Appiah left, Kanu rented the apartment’s spare bedroom to Ricardo

Campbell. Appiah never returned the two keys to the apartment. Appiah

unsuccessfully tried to involve the police to get the security deposit back. Appiah

also continued to text and email Kanu demanding his security deposit. In a final

October 16, 2017 text, Appiah told Kanu “you need to stop playing with me.” 1

(3) On December 13, 2017, Kanu, Kamara, and their son were home at the

apartment when a man in a black outfit and black mask entered the apartment using

a key and pointed a gun at Kanu and gestured like he was demanding money. Kanu

went into the bedroom, shut the door, and yelled for Kamara to call 911. While

Kanu was on the floor, the man shot two times through the bedroom door. The

1
App. to Opening Br. at A064 (Trial Tr. at 26).

2
gunshots did not hit anyone but damaged the child’s crib. At trial, Kanu testified

that the man was Appiah.2

(4) Appiah fled the apartment before police arrived. Police collected two

spent .32 caliber shell casings from outside the bedroom door and projectiles from

the baby’s crib and the wall. An officer’s body camera from the night of the incident

showed an officer going into Campbell’s room, saying that the room smelled like

drugs, and pointing out a drug scale and drug packaging.

(5) Police interviewed Appiah that night but did not arrest him. Appiah

was wearing black clothes when the police conducted the interview. Two days later,

police interviewed Appiah again. He admitted that he owned a .32 caliber handgun.

Police arrested Appiah, seized the gun, and had the gun tested. A forensics expert

testified that the shell casings from the apartment were consistent with having come

from Appiah’s gun, though the examiner could neither identify nor eliminate the

projectiles as having been fired from Appiah’s gun.

(6) The State charged Appiah with Home Invasion, Burglary in the First

Degree, five counts of Possession of a Firearm during the Commission of a Felony,

Attempted Robbery in the First Degree, three counts of Reckless Endangering in the

First Degree, and a misdemeanor count of Criminal Mischief. After a three-day trial,

a Superior Court jury convicted Appiah of all charges, except Home Invasion and

2
Id. at A066 (Trial Tr. at 34).

3
instead of Attempted Robbery in the First Degree, of the lesser-included offense of

Aggravated Menacing. The Superior Court judge sentenced Appiah to seventeen

years at Level V, followed by probation.

(7) On appeal, Appiah raises three claims of error relating to the Superior

Court’s denial of his request to inquire into drug paraphernalia found in Campbell’s

room—(a) the evidence could be used under D.R.E. 616 to show bias; (b) the

evidence could be used under D.R.E. 404(b) to rebut the State’s motive argument;

and (c) precluding its use violated the Confrontation Clause and Appiah’s Due

Process right to a fair opportunity to defend against the State’s accusations. He also

claims that his Sixth Amendment rights were violated when the Court refused to

appoint new counsel or allow him to represent himself. We review the Superior

Court’s evidentiary rulings for abuse of discretion.3 We review alleged

constitutional violations related to the trial court’s evidentiary ruling de novo.4

(8) Addressing first the Superior Court’s refusal to let defense counsel

cross-examine a witness about drug paraphernalia found in the apartment, the State

called Campbell to testify about his lack of keys to the apartment and his need to use

a set of keys Kanu left under the floor mat in Kanu’s car. The State used the

testimony to show that Appiah kept the keys to the apartment and used the keys to

3
Allen v. State, 878 A.2d 447, 450 (Del. 2005).
4
Smith v. State, 913 A.2d 1197, 1233 (Del. 2006).

4
gain access to the apartment for the robbery. On cross-examination, Appiah’s

counsel asked Campbell about a drug scale in his room. The State objected, and the

court called for a sidebar.

(9) Appiah’s counsel explained that he wanted to use the evidence to

establish that other people involved in drug transactions might have been coming

and going from the apartment using Campbell’s key. This proved, according to

Appiah’s counsel, that someone other than Appiah could have entered the apartment

on the night in question. The trial judge told Appiah’s counsel that she might allow

her to ask about the drug evidence if counsel could lay a foundation about Campbell

or Kanu loaning the apartment keys to others. After the sidebar, the court instructed

the jury to disregard Appiah’s counsel’s question to Campbell about the drug scale.5

At the end of that day of trial, Appiah’s counsel raised the issue again and the court

ruled that she was not satisfied that it was admissible under D.R.E. 403 because it

was too speculative.6

(10) Appiah argues that the drug paraphernalia evidence was relevant to

Campbell’s bias as a witness because, according to Appiah, the evidence “provided

a reasonable basis to suggest that Kanu, Campbell and Kamara had a motive to tailor

5
App. to Opening Br. at A051 (Trial Tr. at 86-87).
6
Id. at A059 (Trial Tr, at 130) (“[The Court]: At this point, I’m not satisfied it’s admissible under
[Rule] 403. I’m just not. I think it’s – too much of a stretch.”).

5
their testimony to curry favor with the prosecution in an attempt to avoid criminal

charges.”7 It is arguable whether Appiah made this argument below and thus we

should review for plain error. Regardless, even if we review for abuse of discretion,

the court did not err.

(11) D.R.E. 616 provides that “[a] witness’s credibility may be attacked with

evidence of the witness’s bias, prejudice or interest for or against any party to the

case.” This rule is not, however, without limits. The impeachment evidence must

be relevant to bias and not cause unfair prejudice, confusion, or undue delay.8 Here,

the trial judge gave Appiah the opportunity to lay a foundation that Campbell was

allowing others to use his key to enter the apartment and make drug deals. The

evidence was not forthcoming. The court eventually found that the speculative use

of the evidence was “very prejudicial and takes away from the main reasons [they

were at trial].”9 The Superior Court did not abuse its discretion when it weighed the

speculative and marginal relevance of the evidence against the prejudice to the State

of allowing cross-examination on—at best—a tangential issue.

(12) Second, Appiah argues that the trial court abused its discretion when it

denied admission of the drug evidence under D.R.E. 404(b) to rebut the State’s

motive evidence that Appiah was after his security deposit. D.R.E. 404(b) provides

7
Opening Br. at 17.
8
Wilkinson v. State, 979 A.2d 1111, 2009 WL 2917800, at *2 (Del. 2009) (TABLE).
9
App. to Opening Br. at A051 (Trial Tr. at 84).

6
that evidence of “other crimes, wrongs or acts” can be admitted “for other purposes,

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity

or absence of mistake or accident.”

(13) When a defendant seeks to use evidence under D.R.E. 404(b), it is

called “reverse 404(b) evidence” because evidence is typically introduced under

Rule 404(b) against the defendant.10 In a reverse 404(b) instance, the trial judge

examines “(1) whether the evidence is being offered for a purpose permitted by Rule

404(b); (2) whether the evidence is relevant under Rule 402; and (3) any argument

by a party that the probative value of the evidence is substantially outweighed by

potential prejudice, undue delay, or confusion of the issue under Rule 403.”11 As

has already been shown, the court fairly concluded that the probative value was

outweighed by confusion of the issues, undue delay, and unfair prejudice.

(14) The defense relies on Norwood v. State.12 In Norwood, this Court found

that evidence of a third party’s involvement in an almost identical crime to the one

at issue was relevant to the defense’s theory of misidentification. This court held

that the evidence was admissible because the State did not articulate any prejudice,

the evidence would not cause undue delay, and the jury would not be confused about

10
See Norwood v. State, 95 A.3d 588, 596 (Del. 2014).
11
Id. at 598.
12
95 A.3d 588 (Del. 2014).

7
the main issue in the case–the identity of a third robber.13 Here, unlike Norwood,

the State showed that the drug paraphernalia evidence was speculative and unfairly

prejudicial to the State’s case.14 The court was also concerned about starting a mini-

trial about the drug evidence, which would confuse the jury and waste time. 15 The

court did not abuse it’s discretion by excluding the evidence.

(15) Appiah also claims that even if this court finds no reversible error in

denying the opportunity for cross examination under D.R.E. 616 or D.R.E. 404(b),

this Court should nonetheless find that, cumulatively, the denial of his use of the

evidence amounted to a violation of the Confrontation Clause and Appiah’s Due

Process right to a fair opportunity to defend against the State’s accusations.

(16) The Sixth Amendment guarantees a criminal defendant the right to

confront witnesses against him.16 An essential component of this right is the

defendant’s right to conduct adequate cross-examination of adverse witnesses. A

trial court’s discretion to limit the scope of cross-examination is guided by our

decisions in Snowden v. State and Weber v. State.17 In those cases, the court looked

to “(1) whether the testimony of the witness being impeached is crucial; (2) the

logical relevance of the specific impeachment evidence; (3) the danger of unfair

13
Id. at 599.
14
App. to Opening Br. at A050 (Trial Tr. at 83).
15
Id. at A051 (Trial Tr. at 84).
16
U.S. Const. amend. VI.
17
Williams v. State, 141 A.3d 1019, 1033 (Del. 2016).

8
prejudice, confusion of the issues, and undue delay; and (4) whether the evidence is

cumulative.”18 The question boils down to “whether the jury had in its possession

sufficient information to appraise the biases, credibility, or motives of the witness.”19

(17) Even if the reviewing court finds that the trial court violated the

defendant’s constitutional right to confrontation, however, “a reversal is required

only if the reviewing court cannot conclude that the error was harmless beyond a

reasonable doubt.”20 Whether an error is harmless depends on “(1) the importance

of the testimony of the challenged witness; (2) whether his [or her] testimony was

cumulative; and (3) the presence or absence of overwhelming evidence of guilt.”21

The ultimate question for the reviewing court is whether the error may have affected

the outcome.22

(18) We have already found that the trial court did not abuse its discretion

in limiting the cross-examination of a State witness about drug paraphernalia

evidence because the probative value of the evidence did not outweigh the prejudice

and risk of confusing the jury. But, even if the trial court erred, it is highly doubtful

that the drug paraphernalia evidence would have affected the jury’s decision. The

18
Id.
19
Id. at 1034 (citing Weber v. State, 457 A.2d 674, 682 (Del. 1983)) (internal quotation marks
omitted).
20
Wilson v. State, 950 A.2d 634, 639 (Del. 2008) (citing Chapman v. California, 386 U.S. 18, 24
(1967)).
21
Williams, 141 A.3d at 1035 (quoting Wilson, 950 A.2d at 639, citing Van Arsdall v. State, 524
A.2d 3, 8 (Del. 1987)).
22
Id. (citing Van Arsdall, 524 A.2d at 11).

9
evidence was speculative and minor in importance to other evidence of guilt such as

the .32 caliber weapon, shell casings, Appiah’s access to keys to the apartment, and

Kanu’s identification of Appiah as the intruder.

(19) Finally, Appiah argues that his conviction should be reversed because

the Superior Court denied his request for new counsel and denied his Sixth

Amendment right to represent himself. The right to proceed pro se is reviewed de

novo.23 Because Appiah made his request to change counsel just before trial and

during trial, under this Court’s decision in Briscoe v. State, the trial court must

inquire whether the reasons offered by the defendant to discharge his attorney

constitute good cause to justify a continuance of the trial.24 If the court does not find

good cause, the defendant must choose either to continue with his existing counsel

or proceed to trial representing himself.25 If the defendant decides to proceed pro

se, the trial court must engage in a further colloquy to ensure that the defendant

understands the consequences of the decision.26

(20) Here, different Superior Court judges made the necessary inquiry into

whether new counsel should be appointed along with the timing of the request.

Appiah was able to express his reasons for wanting new counsel. Appiah stated that:

(a) he wanted defense counsel to get a medical report about Kanu being shot even

23
Stigars v. State, 674 A.2d 477, 479 (Del. 1996).
24
Briscoe v. State, 606 A.2d 103, 107 (Del. 1992).
25
Id.
26
Id.

10
though it was undisputed that Kanu falsely told the 911 operator he had been shot;

(b) defense counsel supposedly contacted Appiah’s wife without his permission and

discussed the case; (c) he questioned whether defense counsel understood the

ballistics report; (d) defense counsel supposedly spoke to him in a demeaning

manner; and (e) he doubted her abilities and argued when they were together.27

Some tension is unavoidable between counsel and client. Without facts showing a

complete breakdown in communication with counsel, a conflict of interest, or an

irreconcilable interpersonal conflict, the Superior Court did not abuse its discretion

before or during trial when it denied Appiah’s request for new counsel.28

(21) Appiah’s self-representation claim is also without merit. Before

Appiah is entitled to a colloquy with the court about representing himself, he must

make a timely request to represent himself and must do so clearly and

unequivocally.29 Before trial, the Superior Court asked Appiah if he wanted to

represent himself, and Appiah responded that he did not.30 During trial, the State

had already presented most of its case, and Appiah’s complaints were not new. The

Superior Court was well within its discretion to deny the request when the same

27
App. to Opening Br. at A022–28 (Tr. of Case Review Colloquy at 6–12).
28
United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982)).
29
Buhl v. Cooksey, 233 F.3d 783, 792 (3d Cir. 2000).
30
App. to Opening Br. at A024 (Tr. of Case Review Colloquy at 8) (“[The Court]: Mr. Appiah,
you don’t get to choose your attorney. So, is your proposal, then, to represent yourself? [The
defendant]: I can’t represent myself.”).

11
request was thoroughly considered a week before trial. Granting Appiah’s request

on the second day of trial would have delayed the trial and caused prejudice to the

State, trial witnesses, and the court in a trial that was fully underway.31

NOW, THEREFORE, it is hereby ORDERED that the judgment of the

Superior Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr.
Chief Justice

31
On March 4, 2019, Judge Scott met with Appiah, his attorney, and the prosecutor and thoroughly
reviewed Appiah’s request for new counsel. President Judge Jurden also held an office conference
with Appiah’s counsel and the prosecutor to discuss what Appiah said to Judge Scott about
terminating his trial counsel. President Judge Jurden found that Appiah’s counsel had acted
appropriately in the circumstances. App. to Opening Br. at A037 (Office Conference Tr. at 8).

12