Wing v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

GREGORY WING, § § No. 320, 2023 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § ID No. 2105000987 (N) STATE OF DELAWARE, § § Appellee. §

Submitted: June 26, 2024 Decided: August 13, 2024

Before TRAYNOR, LeGROW, and GRIFFITHS, Justices.

Upon appeal from the Superior Court of the State of Delaware. AFFIRMED.

Jan A.T. van Amerongen, Jr., Esquire, Wilmington, Delaware; Maureen Coggins, Esquire (argued), Norristown, Pennsylvania, for Appellant Gregory Wing.

Carolyn S. Hake, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, for Appellee State of Delaware. TRAYNOR, Justice:

After a trial in the Superior Court that lasted 14 days and encompassed the

testimony of over 50 witnesses and the admission of over 600 exhibits, a New Castle

County jury found Gregory Wing guilty of gang participation and multiple violent

crimes, including two counts of first-degree murder and four counts of attempted

first-degree murder. Wing received two life sentences, plus a decades-long prison

term. He now asks this Court to reverse his convictions and to order a new trial

because of two evidentiary rulings during his trial. Both rulings—one allowing the

jury to consider a witness’s out-of-court statement to a police officer that included a

damaging admission by Wing, the other relating to the scope of permissible cross-

examination of another witness—were, under our law, committed to the sound

discretion of the trial judge. For the reasons that follow, we have concluded that in

neither instance did the trial judge abuse his discretion. Consequently, we affirm.

I

This case involves a shooting rampage on the streets of Wilmington over a

five-day period, the likes of which, we suspect, would shock most Delawareans.

And though a detailed recitation of each disquieting fact is not essential to our

resolution of Wing’s appellate claims, we lay out the following facts to establish the

context in which Wing was indicted, tried, and convicted.

2  A

In the fall of 2020, the Wilmington Police Department (“WPD”) launched an

investigation into the NorthPak street gang and its suspected involvement in a series

of violent crimes in the City of Wilmington. The WPD determined that NorthPak,

which considers itself the “Taliban” of the north side of Wilmington,1 is a “hybrid

criminal street gang,” with no “clear code of conduct”2 that is motivated, in one

former member’s words, not by drugs or money, but by “revenge” and “rep

chasing.”3 The investigation unearthed at least 18 key players in NorthPak,

including Wing and his co-defendant Elijah Coffield.4 Wing and Coffield were

identified as “leaders” and “shooters” for NorthPak.5

Investigators learned that NorthPak was engaged in a violent feud with a rival

Wilmington street gang known as the M-Block Grimy Savages (“MGS”). Both

gangs used Instagram, YouTube, and other social media platforms to communicate,

for self-promotion, and to “intimidate [and] inflict fear amongst . . . opposing

gangs[.]”6 Perceived social media slights ignited violence and turned individuals

1 App. to Answering Br. at B53–54, B57. NorthPak selected its moniker to suggest that “the north side of Wilmington is like Pakistan” and used that “as an intimidation factor.” Id. 2 Id. at B47–51. 3 Id. at B743. NorthPak sought revenge for the deaths of Rajion Dinkins and Christian Coffield. Id. at B133. 4 Answering Br. at 5–6. NorthPak members refer to one another by nicknames. Wing is also known as Swerve, John Wick, and G Herb. Coffield is known as Beam. 5 App. to Answering Br. at B723–24. 6 Id. at B38. 3 into targets. NorthPak sought to kill those targets, or their friends and family

members, each killing considered a “score” adding to their side’s total body count

in the ongoing feud.7

By the summer of 2020, NorthPak was “on offense” against MGS and actively

seeking MGS-affiliated targets to kill so they could “feel like [they] were winning.”8

To that end, NorthPak gang members often stole cars to “spin the block,” a slang

term meaning to look for targets.9 If the opportunity arose, NorthPak would run a

“drill,” a slang term for a shooting, including a drive-by shooting.10

On the evening of September 8, 2020, three such attacks took place in close

succession. First, around 7:00 p.m., 17-year-old Ol-lier Henry and 19-year-old

Taquan Davis, both associated with MGS, were walking home from a memorial

service along North Pine Street; they were accompanied by Antionajsa Williams and

another woman. A car with tinted windows pulled up beside them, and two masked

men opened fire on the group, which quickly dispersed. Henry was struck several

times and Williams was grazed, but Davis and the other woman escaped unharmed.

WPD officers responded to the scene and found Henry unconscious with gunshot

7 Id. at B75 (“s[o] shooting someone affiliated let’s say with MGS would still be a score. Because unfortunately if you take a picture with MGS members and post it to Instagram, members like NorthPak will notice that you are now hanging out with the opposition. You’re at least associated with the opposition, so then that puts a target on your back in the streets in real life.”). See also App. to Opening Br. at A189. 8 App. to Opening Br. at A204. App. to Answering Br. at B748. 9 App. to Opening Br. at A93–94. 10 Id. 4 wounds to his head and torso; he was later pronounced dead at Christiana Hospital.

The aftermath of the Pine Street shooting was captured on surveillance cameras, and

officers found three .22 caliber shell casings and one 9mm projectile at the scene.

Around 7:10 p.m., 15-year old Javar Curtis, who had “beefed” with NorthPak

the week before,11 was walking home from his grandmother’s house. While walking

through Southbridge in Wilmington, Curtis observed individuals in a black Nissan

Altima “looking at him real hard[.]”12 Fearing that the car’s occupants were in

NorthPak, Curtis crossed the street. He briefly evaded the Altima, but when he saw

the car a second time, Curtis presumed that it was “looking for [him],” so he ran.13

Curtis again dodged the car momentarily, but when it came upon him a third time,

two masked passengers fired six shots at him. Curtis ducked and narrowly avoided

being struck in the face. The shooting was captured on surveillance video,14 and

police found four .22 caliber shell casings at the scene.

Less than an hour later, around 7:56 p.m., Bryshawn Lecompte and Jiveer

Green were driving in the area of 7th and Jackson Streets. Lecompte was considered

a NorthPak “opp”15 because he was “best friends” with someone who had

disrespected NorthPak in rap videos, and Green was considered an “opp” because of

11 Id. at A183–84; App. to Answering Br. at B358. 12 App. to Answering Br. at B344–46. 13 Id. at B347. 14 Id. at B351–52, B394–411, B754. 15 Opposing gangs or individuals associated with them are also referred to as “opps.” See id. at B51. 5 his association with Lecompte.16 A dark-colored, four-door car pulled up next to

Lecompte and Green, and two men fired several shots into their car. Green dodged

the bullets, but Lecompte was struck, and he drove quickly to St. Francis Hospital

where he was treated for gunshot wounds to his left leg and arm. WPD investigators

recovered three 9mm shell casings and seven .22 caliber shell casings from the scene.

Davis, the individual who WPD investigators surmised was the primary target

of the first shooting, survived the day—but not the week. Following the September

8th shootings, Davis made several Instagram posts lamenting Henry’s death and

taunting NorthPak. On September 12, 2020, around 7:00 p.m., Davis was at a store

on the corner of Elm and Harrison streets. As he was leaving, someone called out

his name, prompting him to step out of his car to look. When he did, several shots

were fired, striking Davis in his mouth, chest, and left arm, and he died from the

injuries. No ballistics evidence was found at the scene, but three 9mm shell casings

were recovered months later in a stolen Hyundai Sante Fe found abandoned near

co-defendant Coffield’s residence.

On September 16, 2020, Delaware State Police (“DSP”) officers observed a

“dark colored Nissan Altima” pull into a Wawa market on Philadelphia Pike in

Wilmington. The car caught the officers’ attention because it “came in at a high rate

16 App. to Opening Br. at A113, A303–04. 6 of speed and erratic[ally].”17 DSP conducted a registration check and learned that

the vehicle had been reported stolen. Officers observed Wing exit the Altima and

enter the Wawa. When he returned, officers converged on the vehicle. Wing fled

but was apprehended not far away with a black firearm and eleven 9mm live rounds

of ammunition in his possession. Officers also found three 9mm shell casings in the

Altima. Following his arrest, Wing pleaded guilty to carrying a concealed deadly

weapon—a 9mm Beretta—and receiving stolen property—the Nissan Altima.18

Wing was later tied to the September 8th and 12th shootings through ballistics

evidence, cell tower data that indicated his phone number as active near all three of

the September 8th shootings, social media posts and messages, and witness

testimony. The ballistics evidence linked the 9mm Beretta officers seized during

Wing’s arrest to the 9mm shell casings recovered from the stolen Nissan Altima, the

scene of the Lecompte/Green shooting, and the stolen Hyundai Sante Fe tied to

Davis’s shooting recovered near Coffield’s residence.. Wing’s 9mm Beretta was

also matched by ballistics with projectiles recovered from Henry’s and Lecompte’s

bodies.

Wing’s social media accounts also incriminated him. Hours before the

September 8th shooting spree, Coffield exchanged messages with Wing and Wing’s

17 App. to Answering Br. at B178. 18 App. to Opening Br. at A130–31, A175. 7 brother over Instagram through which Wing learned that “opps” were out “on

Pine.”19 Wing told Coffield he was on his way and also sent Coffield a “selfie style

photo[] with a magazine for a weapon.”20 About an hour before Henry’s murder,

Coffield told Wing that he was “out back,” to which Wing responded “[h]ere I come

brody.”21

Not long after Henry’s murder, another NorthPak gang member, Caleb

Lancaster, told Wing that he was being credited with Henry’s death, to which Wing

replied, “my wreck,”22 a phrase that Investigator Masi, a criminal-intelligence

analyst who testified for the State at trial, explained meant that Wing was in fact

taking credit for the shooting. Ten minutes later, Lancaster sent Wing a photograph

of WPD officers attempting to revive Henry while Davis sat nearby. Lancaster sent

Wing another photo after Henry was pronounced dead. Later that night, Wing posted

a photo of himself on Instagram holding a black Beretta 9mm. On September 10th,

Wing posted on Instagram stating “check da score” and “I’m dropping sh*t lol.”23

When Davis posted about Henry’s death on Instagram and included his

location with a message saying “[c]ome get me,”24 Wing viewed the video numerous

19 App. to Answering Br. at B304–09. 20 Id. at B317. 21 Id. at B318–19. 22 Id. at B333–34. 23 Id. at B500–01, B784. 24 Id. at B595. 8 times and messaged Lancaster: “I should go smoke . . .” Davis.25 Wing also posted

his own video antagonizing and mocking Davis.

Wing also appeared to set up purported alibis following both the September

8th and 12th shootings. On September 8th, Wing messaged another NorthPak gang

member and asked: “gotta pic at da airport?”26 Malik Benson sent Wing a photo

from the inside of an airplane looking out on clouds and told Wing to post it in the

morning. On September 12th, Wing asked Benson for a photo “of you driving,” and

Benson responded with a video of him driving on the highway.27 WPD Detective

Justin Kane testified that the message about the driving video “jumped out” to him

as Wing looking for “a possible alibi . . . [l]ike do you have an airport or airplane

photo.”28

Among the over 50 witnesses who testified during Wing’s trial was NorthPak

gang member Stanley Jones. Jones testified that he, Wing, and Coffield committed

the September 8th shootings, and also that he was with Wing when Wing shot Davis

on the 12th. Jones said that he stole the Nissan Altima on September 8th, that Wing

was the driver for all three of the shootings on that date, and that he and Coffield

were in the front passenger and back seats, respectively. Jones described the Pine

25 Id. at B607. 26 Id. at B484–87. 27 Id. at B624–25. 28 Id. 9 Street shooting, noting that Wing stopped next to Henry and Davis, reached over

Jones, and fired the Beretta. Wing drove away as Jones threw shell casings from the

car.

Jones testified that as they drove away from the scene of the Pine Street

shooting, Wing “recognize[d] someone by the name of Var from East,”—a

nickname of Javar Curtis29—and that Wing did not let Curtis “fully leave [our]

sight.”30 Once Wing had the Altima in “a good position where . . . it was clear to

shoot, [Wing and Jones] shot” at Curtis.31

Jones said that, as they continued on, they “[j]ust happened to see”32

LeCompte and Green sitting in their car at a red light. Jones testified that when they

first saw LeCompte and Green, they were in a single lane of traffic and not in a

position to shoot, so Wing followed the car to a second red light. When they got

close enough, Jones and Coffield fired several shots into the vehicle and at Lecompte

and Green. Jones admitted that his testimony was inconsistent with his earlier

statement to detectives that Wing and Jones were the shooters in that incident.

Jones also testified that he had stolen the dark-colored Hyundai Santa Fe tied

to Davis’s murder.33 He said that Wing was driving the Sante Fe when they saw

29 Id. at B341, B754. 30 Id. at B754. 31 Id. 32 Id. at B755. 33 Id. at B757. 10 Davis, so Wing circled the block.34 Jones indicated that, because “[he] was rep

chasing,” he asked Wing if he could shoot Davis.35 But Jones explained that,

because the Beretta belonged to Wing, it was “ultimately [Wing’s] decision” and

Wing opted to reach over Jones to shoot Davis.36 Wing then drove to a Wawa where

the pair broadcast themselves over Instagram live “laughing a little bit.”37 They then

abandoned the Hyundai near Coffield’s house.

B

In May 2021, Wing, along with 14 co-defendants, was indicted by a New

Castle County grand jury for illegal gang participation and 24 underlying offenses.

Wing was reindicted in November 2021 and charged with illegal gang participation

and 15 underlying offenses including: murder in the first-degree (two counts),

attempted murder in the first-degree (four counts), possession of a firearm during

the commission of a felony (“PFDCF”) (seven counts), conspiracy in the first degree

(three counts) and attempted assault in a detention facility. Wing and Coffield were

tried together by a jury.

The jury found Wing guilty of all but three of the operative indictment’s 16

counts. Most notably, among the crimes for which the jury returned guilty verdicts

34 Id. at B757–58, B760. 35 Id. at B757. 36 Id. at B758. 37 Id. 11 were illegal gang participation and all the charged murders, attempted murders, and

conspiracies. Wing received two life sentences for the first-degree murder

convictions and 113 years of Level V incarceration, suspended after 85 years, for

the remaining convictions. Wing then appealed.

C

Although the trial was lengthy—as mentioned, it lasted 14 days, and

encompassed the testimony of over 50 witnesses and the admission of over 600

exhibits—it is the testimony of two witnesses that yielded the rulings that Wing

claims were erroneous and cause for reversal of his convictions.

As will be more fully developed below, Wing asserts that the Superior Court

erred by admitting into evidence an out-of-court statement made by Kenneth Griffin

to Detective Kane of the WPD. The court allowed evidence of that statement under

11 Del. C. § 3507, which authorizes the use of prior out-of-court statements as

affirmative evidence subject to certain conditions and foundational requirements.

Wing contends that those conditions and requirements were not met here and that

admission of evidence of the statement was reversible error.

Wing also contends that the Superior Court erred by unduly limiting his

cross-examination of Tyrie Burton, a witness who offered testimony that

incriminated his co-defendant Coffield. Coffield’s counsel posed questions to

Burton during cross-examination related to whether Burton had committed

12 uncharged murders. The State objected, arguing that counsel’s questions were

“getting into [Burton’s] Fifth Amendment right and uncharged misconduct.”38 Wing

argues that the court erred in sustaining the objection because “[c]ross examination

on [Burton’s] knowledge and involvement in his own murders would have shown

his bias.”39

II

Wing concedes that his claims of error are subject to review for abuse of

discretion.40 “An abuse of discretion occurs when a court has exceeded the bounds

of reason in light of the circumstances, or so ignored recognized rules of law or

practice so as to produce injustice.”41

The State contends that Wing did not properly preserve certain claims of error

he has now raised on appeal. In the absence of plain error, we will not consider

claims that were not fairly presented to and considered by the trial court. 42 Plain

error is error so clearly prejudicial to substantial rights as to jeopardize the fairness

and integrity of the proceedings.43

38 App. to Opening Br. at A224. 39 Opening Br. at 39. 40 See Turner v. State, 5 A.3d 612, 615 (Del. 2010) (reviewing the Superior Court’s admission of an out-of-court statement under § 3507 for abuse of discretion); Thompson v. State, 399 A.2d 194, 198–99 (Del. 1979) (“A decision whether to admit testimony under particular circumstances is within the sound discretion of the Trial Judge and will not be reversed absent a clear showing of an abuse.”). 41 McNair v. State, 990 A.2d 398, 401 (Del. 2010). 42 Russell v. State, 5 A.3d 622, 627 (Del. 2010). 43 Roy v. State, 62 A.3d 1183, 1191 (Del. 2012). 13  III

Our analysis starts with consideration of Wing’s contention that the Superior

Court erred by allowing the State to use Griffin’s out-of-court statement under 11

Del. C. § 3507; we conclude with a review of Wing’s claim that the court improperly

restricted his cross-examination of Burton.

A

On the eleventh day of trial, the State called Kenneth Griffin as a witness.44

While incarcerated in Pennsylvania on gun charges, Griffin had, on October 30,

2020, requested to speak with a WPD detective regarding NorthPak. Detective Kane

met with Griffin and recorded his statement. Griffin told Detective Kane that Wing

and Coffield were “big players” in NorthPak45 and that NorthPak kills people

“because that’s what they do.”46 Griffin made incriminating remarks regarding

Coffield, including that Coffield got his guns from someone named “St[u],”47 and

that Coffield and Wing were trying to shoot Davis.48 Griffin told Detective Kane

that Wing told Griffin that he killed Ol-lier Henry, also known as Baby Butter,49 and

44 App. to Opening Br. at A254–301. 45 Opening Br. at 18–19. App. to Answering Br. at B795; Court Exhibit 45. 46 App. to Answering Br. at B810; Court Exhibit 46. 47 App. to Answering Br. at B806; Court Exhibit 47. 48 App. to Answering Br. at B819; Court Exhibit 50. 49 App. to Answering Br. at B817–19; Court Exhibit 50. See also Answering Br. at 25 n.56. 14 also that Wing told Griffin he killed Davis with the gun Wing had in his possession

when arrested.50

During direct examination by the prosecution, Griffin was uncooperative. He

acknowledged that he had spoken with Detective Kane, but he testified that he had

“told Mr. Kane I didn’t want to speak to him.”51 When the prosecutor asked Griffin,

“[w]hen you spoke to [Detective Kane], did you tell the truth?”52 Griffin responded,

“I spoke on Butter.”53 When asked again if he was truthful during the conversation,

Griffin repeated, “Yeah. I spoke on Butter. Yeah.”54

The State then requested that Griffin step down from the witness stand so that

Detective Kane could answer “foundational questions” as a prelude to playing audio

clips of Griffin and Kane’s October 30, 2020 conversation for the jury under 11 Del.

C. § 3507.55 Griffin left the witness stand but remained in the courtroom. Detective

Kane testified that an ATF Agent had notified him that an individual facing charges

in Pennsylvania had requested to speak with a WPD officer regarding NorthPak.56

Detective Kane clarified that he was not familiar with Griffin before they spoke, and

when they met the detective read Griffin his Miranda rights, and Griffin confirmed

50 App. to Answering Br. at B821; Court Exhibit 51. 51 App. to Opening Br. at A257. 52 Id. 53 Id. 54 Id. 55 Id. at A258. 56 Id. at A261. 15 that he wished to speak. Detective Kane said that Griffin then provided information

regarding NorthPak’s involvement in “a multitude of crimes that happened in

Wilmington,”57 including the deaths of Henry and Davis.

On cross-examination—at this point, limited to the admissibility of Griffin’s

recorded statement—defense counsel questioned Detective Kane on where he had

met with Griffin, and whether Griffin had requested lower bail in exchange for the

information he provided. Detective Kane reported that the meeting was in a

courthouse in Media, Pennsylvania. Regarding whether Griffin requested a bail

modification, the detective initially testified he could not then recall but later

confirmed that such a request was made.

Coffield’s counsel then objected to admission of the audio clips on the

grounds that Griffin was “in cuffs and in custody” when he spoke to Kane and

therefore his statement was not voluntary.58 The Superior Court disagreed. The

court reasoned that Griffin reached out to Detective Kane and that he was informed

of—and waived—his rights under Miranda v. Arizona.59 Because the statement was

voluntary, and because the State had “touched on the issue of truthfulness . . . and

on the topics of the conversation,” the court concluded that the foundational

57 Id. at A263. 58 Id. at A267. 59 Miranda v. Arizona, 384 U.S. 436 (1966). 16 requirements of § 3507 had been met.60 The State then introduced ten audio clips,

some of which implicated Wing in the charged offenses. The jury listened as Griffin

revealed, among other things, that Wing and Coffield were “big players” in

NorthPak and that Wing had admitted that he had shot Davis and Henry. After the

clips were played, Detective Kane was dismissed and Griffin returned to the stand.61

After Griffin’s direct examination resumed, the prosecutor asked Griffin

whether his recorded statement to Detective Kane that Wing had killed Henry was

true.62 Griffin responded that “a lot of what sh*t was just in the air” and suggested

that officers had corrected him on Henry’s name and “then they record[ed].”63

Griffin also testified that Wing did not tell him that he had killed Davis.

B

Wing contends that the foundation for the use of Griffin’s October 30, 2020

statement to WPD Detective Kane was deficient in two respects. First, he claims

that the prosecution failed to establish that the statement was voluntary. Second,

Wing argues that the statement was inadmissible under § 3507 because it was “not

truthful.” On this second point, he concludes that Griffin’s acknowledgement that

“he told the truth specifically about ‘Butter’ means everything else that Griffin told

60 App. to Opening Br. at A267–68. 61 Id. at A280. 62 Id. at A287–88. 63 Id. at A290. 17 police was a lie.”64 These arguments bespeak a fundamental misunderstanding of

our cases that address the proper application of § 3507. We therefore reject them

both.

(i)

Our analysis of Wing’s claim that Griffin’s out-of-court statement to

Detective Kane were improperly admitted under 11 Del. C. § 3507 begins with the

statute’s text, which provides in pertinent part:

(a) In a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value. (b) The rule in subsection (a) of this section shall apply regardless of whether the witness’ in-court testimony is consistent with the prior statement or not. The rule shall likewise apply with or without a showing of surprise by the introducing party. Beginning with Keys v. State65 nearly 50 years ago through just last year in

McCrary v. State,66 this Court has spelled out the elements of the evidentiary

foundation that must be laid to support the use of an out-of-court statement under

§ 3507. We would do well to summarize where we stand on this issue at present.

Before allowing the use of an out-of-court statement, the trial judge “must be

satisfied that the offering party has shown by a preponderance of the evidence that

64 Opening Br. at 33. 65 337 A.2d 18 (Del. 1975). 66 290 A.3d 442 (Del. 2023). 18 the statement was voluntarily made, and must render an explicit determination on

the issue before admitting it for the jury’s consideration.”67 By requiring the witness

whose out-of-court statement is proffered to be “subject to cross-examination,” the

statute implicitly “requires the direct examination of the declarant by the party

offering the statement . . . .”68 The direct examination must encompass—or at least

“touch on”69—“both the events perceived [or heard] and the out-of-court statement

itself.”70 Finally, the witness must testify about the truth or falsity of the statement.

The witness need not affirm the truthfulness of the statement71 but must say “whether

or not [it is] true.”72

(ii)

Wing, as mentioned, takes aim at the voluntariness of Griffin’s statement. His

shot, however, lands wide of the mark. Whether a statement is voluntary “is a

question of fact to be determined from the effect that the totality of the circumstances

67 Woodlin v. State, 3 A.3d 1084, 1087 (Del. 2010) (quoting Hatcher v. State, 337 A.2d 30, 32 (Del. 1975)). 68 Keys, 337 A.2d at 20 n.1. 69 McCrary, 290 A.3d at 459–60. 70 Id. at 456. 71 Moore v. State, 655 A.2d 308, 1995 WL 67104, at *2 (Del. Feb. 17, 1995) (TABLE) (“Under § 3507, there is no requirement that the witness either affirm the truthfulness of the out-of-court statement, or offer consistent trial testimony.”); see also Blake v. State, 3 A.3d 1077, 1082 (Del. 2010) (discussing “[t]he foundation requirement that the witness indicate whether or not the prior statement is true. . .”). 72 Ray v. State, 587 A.2d 439, 443 (Del. 1991). 19 had upon the will of the defendant.”73 Then-Chief Justice Steele described a trial

judge’s remit when assessing the voluntariness of a statement:

The question the trial judge must resolve is whether the conduct of the police overbore the will of the declarant when he made his statement. This determination is for the trial judge to make on a case by case basis, and the central question a trial judge faces is whether the behavior of the interrogators was such as to overbear the will of the interrogated to resist and bring about a statement not the product of a rational intellect and a free will without regard to the truthfulness or reliability of the statements.74

And we generally defer to a trial court’s determination as to voluntariness. 75 The

trial court’s ruling on voluntariness must stand unless its findings are clearly

erroneous.76

Wing’s argument that Griffin’s statement was not voluntary is two-fold. First,

he points to Griffin’s testimony that he did not want to speak with Detective Kane

and that he refused to talk with WPD detectives on three occasions. Second, he

claims that Griffin was tricked into speaking with Detective Kane under the guise

that his cooperation would lead to a reduction in his substantial bail. But Wing

ignores the fact that Griffin initiated the meeting with Detective Kane, whose

testimony on this point was crystal-clear:

73 Baynard v. State, 518 A.2d 682, 690 (Del. 1986). 74 Taylor v. State, 23 A.3d 851, 860 (Del. 2011) (Steele, C.J., dissenting). 75 Id. at 854. 76 Harris v. State, 622 A.2d 1095, 1993 WL 61667, at *2 (Del. Feb. 3, 1993) (TABLE). 20  Q. Detective Kane, did you have occasion to speak to Mr. Kenneth Griffin on October 30, 2020? A. Yes, I did.

Q. Could you explain to the jury the circumstances of how you came to speak to Mr. Griffin that day? A. Yes. So at that time there was an ATF agent who worked in conjunction with the Wilmington Police Department. . . . She worked in cold case investigations with our department.

At that time she notified me that there was an individual who was facing some charges in Pennsylvania who has requested to speak with a Wilmington detective about a group called NorthPak. And so she made contact with Delaware County and we went up there to the courthouse in Media, PA, and we went there at the behest of this individual who was facing charges who was Kenneth Griffin and we went up there because he asked to speak with us.

Q. So Ke[nneth] Griffin asked to speak to a Wilmington detective on October 30, 2020? A. Yes.77 That Griffin initiated the contact with the WPD on October 30, 2020 weighs

heavily in favor of the trial court’s finding that his statement that day was voluntary.

And Griffin does not explain how his refusal to speak with WPD officers on three

subsequent occasions undermines the conclusion that he voluntarily spoke with them

77 App. to Opening Br. at A260–61. 21 when he first sought them out; if anything, it confirms that his will to resist

interrogation could not easily be overborn.

In like manner, Wing’s claim that Griffin was deceived by Detective Kane

with a promise of bail reduction runs counter to the record. In the first place, Wing

does not explain how Detective Kane—a WPD detective—could effect a bail

reduction in Griffin’s Pennsylvania case. But more to the point, the record suggests

that securing a bail reduction was Griffin’s objective in reaching out to the WPD

through the ATF agent and not bait used by the WPD to lure Griffin into cooperating.

Again, Detective Kane’s testimony on the point was clear:

Q. . . . Detective Kane, Mr. Griffin spoke to you because he wanted something. Is that fair?

A. Yes. Q. What was that?

A. Bail lowered.

Q. Did you have any power to do that? A. No. Not at all.78

The trial court astutely recognized that Griffin was trying “to sell” 79 his voluntary

statement to secure the benefit of a bail reduction, a fact that the court found militated

in favor of a finding of voluntariness. We see it the same way.

78 Id. at A270. 79 Id. at A268. 22  Wing also takes the trial court to task for considering in its voluntariness

analysis that Griffin was read and waived his Miranda rights. Without citing

authority, Wing announces that “Miranda rights should not be considered a factor

in determining the voluntariness of a witness’[s] statement[.]”80 But this Court has

recognized that the Miranda safeguards “mitigate the inherently coercive pressure

of a custodial interrogation.”81 We have, moreover, expressly identified Miranda

warnings as being among the totality of the circumstances to be considered when

assessing the voluntariness of a defendant’s statement;82 we see no reason why they

should be less relevant when considering the voluntariness of a witness’s statement.

Finally, we have listened to the recordings of the excerpts of Griffin’s

statement. Nothing in the recordings suggests that Detective Kane was aggressive

in his questioning or that Griffin was under stress or an unwilling participant in what

sounds like a relatively relaxed conversation. In sum, the trial court’s determination

that Griffin’s out-of-court statement to Detective Kane on October 30, 2020 was

voluntary is supported by sufficient evidence. It was well within the bounds of

reason in light of the circumstances and did not ignore any rules of law or practice

so as to produce injustice.

80 Opening Br. at 32 (emphasis added). 81 Taylor, 23 A.3d at 855. 82 Baynard, 518 A.2d at 691. 23  (iii)

Wing argues next that “the Court erred when it allowed Mr. Griffin’s

statement to be introduced under [§] 3507 because the statements were not

truthful.”83 In its answering brief, the State points out that Griffin makes this

argument for the first time on appeal. Wing, in his reply, does not contest this

assertion but stands on its objection at trial that the statement was inadmissible

because it was not voluntary. We agree with the State that voluntariness and

testimony regarding truthfulness are two separate bases for objecting to the

admission of a § 3507 statement. Thus, subjecting this argument to plain-error

review would be fully justified. Nevertheless, because Wing’s argument based on

the truth or falsity of Griffin’s statement is based on a patently erroneous application

of our case law, the standard by which we view it does not matter. Simply put,

Wing’s argument is without merit. As previously mentioned, “there is no

requirement that the witness either affirm the truthfulness . . . or offer consistent trial

testimony.”84 The witness need only indicate whether or not the prior statement is

true.85 And here, Wing concedes that Griffin did just that.

Recall that, on direct examination, the prosecutor asked Griffin if he told the

truth to Detective Kane. Griffin, though evasive, confirmed that he had, at least

83 Opening Br. at 32–33. 84 Moore, 1995 WL 67104, at *2. 85 Blake, A.3d at 1082. 24 when he “spoke on Butter.”86 In his opening brief on appeal, Wing “avers that his

acknowledgement that he told the truth specifically about ‘Butter’ means everything

else that Griffin told the police was a lie.”87 The prosecutor’s direct questions,

Griffin’s answers, and his interpretation of them as quoted above satisfy us that

Griffin provided an adequate indication of whether or not his out-of-court statement

was true.

For these reasons, we conclude that the Superior Court did not abuse its

discretion by admitting into evidence Griffin’s October 30, 2020 statement to

Detective Kane. We turn next to Wing’s contention that the trial court abused its

discretion by restricting his cross-examination of a witness called by the State.

C

On the ninth day of trial, the State called former MGS gang member Tyrie

Burton to testify regarding inculpatory statements that Coffield—Wing’s

codefendant—had made while the two were incarcerated in adjacent prison cells.

Burton testified that he pleaded guilty to conspiracy to commit murder in an

unrelated case and had signed a cooperation agreement with the State to testify at

Wing and Coffield’s trial.

86 See supra p. 15. 87 Opening Br. at 33. 25  Burton explained that he knew both Wing and Coffield as well as two of the

victims, Davis and Henry.88 Burton described Henry and Davis as “long time”

friends of his89 but stated that he was not “cool with” Coffield.90 Burton’s testimony

focused on the feud between NorthPak and MGS, noting that NorthPak was “on the

offense” towards the end of 2020.91 Burton described how he had reached out to the

WPD after speaking to Coffield through a vent between their prison cells, and that

he had told detectives the truth regarding what Coffield had told him about the day

that Henry was killed. He also testified that Coffield bragged that he had the best

stolen vehicle, a black Nissan with tinted windows, which he used for “drills.”92

As it did with Griffin, the State had Burton step down from the stand to call

Detective Jones, the WPD detective to whom Burton had spoken, to lay the

foundation for the use of Burton’s recorded statement to Jones under § 3507. While

Detective Jones was on the stand, the State played, without objection, three audio

clips from Burton’s recorded statement. The clips were redacted to avoid any

mention of Wing.93 In the audio clips, Burton told detectives that Coffield confessed

his involvement in the September 8th shootings.

88 App. to Opening Br. at A184–206. 89 Id. at A186–87. 90 Id. at A206. 91 Id. 92 Id. at A209–10. 93 Id. at A212–16; App. to Answering Br. at B679–81. 26  During cross-examination, Coffield’s counsel questioned Burton about his

testimony that NorthPak and MGS kept “score” in their feud—specifically, about

how many NorthPak members Burton had killed while he was a member of MGS.

Burton told counsel that he would “rather not answer no question like that[,]”94 and

“I’m not saying if I did or I didn’t” and also that he did not know the current score.95

Undeterred by Burton’s reluctance to address his own misdeeds, Coffield’s

counsel pushed on and asked Burton “[h]ow many people in NorthPak did MGS

kill”96 and “[h]ow many people were in your gang with MGS?”97 Burton’s responses

were non-committal. Coffield’s counsel circled back, asking Burton, “[h]ave you

killed any members of these other gangs?”98 This question elicited an objection from

the State:

[T]he S[t]ate would object to this line of questioning. [Counsel] can get into the charges that Mr. Burton was charged with as it pertains to MGS investigation and what was dropped and the deal he got, but asking him about murders he has committed is getting into his Fifth Amendment Right and uncharged misconduct.99

During the ensuing sidebar conference, Wing’s counsel limited his response

to the State’s objection to the question’s impeachment value:

94 App. to Opening Br. at A220. 95 Id. at A221. 96 Id. 97 Id. at A222. 98 Id. at A224. 99 Id. 27  In his statement he’s asked or he says he was not involved in any murders. So that’s why I believe this line of questioning is relevant because he lies in his statement to the police.100

After Coffield’s counsel confirmed that his questions also were designed to

impeach Burton’s credibility, the trial judge directed Coffield’s counsel’s attention

to the heart of the matter in the following exchange:

THE COURT: I think the fact is he’s [not] going to answer if he killed anybody.101

COFFIELD’S COUNSEL: Well, he can do that.

THE COURT: And I think he’s told you that.

COFFIELD’S COUNSEL: I’m stuck with it.

THE COURT: Yes.102

Coffield’s counsel then moved on with his cross-examination.

Wing now asserts that the trial court erred reversibly when it sustained the

State’s objection to the question put to Burton by Coffield’s counsel. Though

100 Id. at A225. 101 The court reporter transcribed this comment as follows: “I think the fact is he’s going to answer if he killed anybody.” Id. at A226–27. In its answering brief, the State interpreted the exchange as evidencing the court’s belief “that Burton was not going to answer . . . and [that] Coffield acknowledged that Burton could do that.” Answering Br. at 44. Consistently with that interpretation, the State quoted the second statement by the court as “And I think he’s told you that [he is not going to answer].” Id. at 45. Although the State does not mention it, this interpretation is necessarily based on a judgment that the court reporter’s transcription was in error. We think that the judgment is a sound one in that the exchange does not make sense without the interpolation of “not” into the court’s first statement. We note, too, that, in his reply brief, Wing did not take issue with the State’s rendition of the exchange. 102 App. to Opening Br. at A226–27. 28 imprecise in its formulation, Wing’s argument appears to be that whether or not

Burton had killed members of NorthPak was relevant for impeachment purposes and

to show that Burton harbored bias against his NorthPak rivals, including Coffield

and Wing. According to Wing, Burton’s testimony, which touched upon his

knowledge of slang used by gangs to describe “shootings, murders, stolen cars[,] and

other criminal activity[,]”103 was crucial to the State’s case. The prohibited question,

Wing says, was designed to “follow[] up in the area of [Burton’s] personal

experience with and knowledge of these phrases.”104 Wing claims that, “by

precluding the defense from questioning the witness about whether he had killed

anyone, they were not able to fully and effectively cross examine him about the facts

of his open case for conspiracy to commit murder[,]”105 a case about which “he lied

. . . to the police.”106 Wing also points to Burton’s testimony concerning “several of

the murders [Wing and Coffield] were charged with[]”107 and “crimes that Burton

claimed were admitted to by [Coffield], [which] involved predicate acts under

[Wing’s] gang participation charge.”108

The State responds that Wing did not raise his argument below and that any

error as to it was not plain. The State downplays the significance of Burton’s

103 Opening Br. at 37. 104 Id. at 39. 105 Id. at 39–40. 106 Id. at 40. 107 Id. at 40–41. 108 Id. at 41. 29 testimony as to Wing, noting that Burton’s out-of-court statement was redacted to

eliminate any “reference or implication of Wing by Coffield to avoid any Bruton

issues.”109 The State also observed that there was overwhelming evidence of Wing’s

guilt independent of Burton’s testimony, including Jones’s eyewitness testimony

and Wing’s inculpatory statement that Henry was his “wreck.”

As mentioned, we review a trial court’s evidentiary rulings for abuse of

discretion and claims of error not preserved below only for plain error. Here,

because we conclude that the trial court did not abuse its discretion, we need not

decide whether Wing preserved this issue during the trial.

As for Burton’s bias, the jury was aware that he was a former member of a

rival gang who hoped to derive future benefits from his testimony. His bias against

Wing and Coffield was obvious. As for his credibility, Wing availed himself of the

opportunity on cross-examination to ask about Burton’s lie to the police,110 the

conspiracy charge to which he had pleaded guilty, and the animosity between

NorthPak and MGS. Wing even was permitted to elicit Burton’s guilt-laden answer

109 Answering Br. at 46. See Bruton v. United States, 391 U.S. 123 (1968) (holding that the introduction of a codefendant’s confession at a joint trial, which confession added substantial weight to the government’s case, when codefendant did not testify, violated Bruton’s Sixth Amendment right of confrontation that could not be cured by a jury instruction to disregard the confession as to Bruton). 110 App. to Opening Br. at A244–46. 30 “I’m not saying if I did or I didn’t”—when he was asked if he had “killed some

people in NorthPak.”111

What is much more, Wing has taken no heed of the Fifth Amendment

implications of the testimony he sought to elicit from Burton. It bears noting that

the State’s objection referred specifically to this concern, and the trial judge

recognized it as well. Rather than address it at sidebar, it appears as though

Coffield’s counsel understood that he was “stuck with”112 Burton’s statement that he

would “rather not answer”113 questions of the kind that drew the State’s objection.

Seen in this light, the silence of Wing’s counsel when Coffield moved on with his

cross-examination can be seen more as a capitulation, and a reasonable one at that,

than the preservation of a legal argument for appeal. We find no hint of an abuse of

discretion on this issue.

IV

For the reasons set forth above, we affirm Gregory Wing’s convictions and

the sentences imposed on August 11, 2023.

111 Id. at A221. 112 Id. at A227. 113 Id. at A220. 31