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Wiretap recordings presented during the trial of two convicted drug dealers did not violate their Sixth Amendment right to confront the individuals testifying against them, the Delaware Supreme Court has ruled. The high court held the recordings did not violate the appellants’ constitutional rights because they could have presented witnesses challenging the recordings’ meaning at trial.

In May 2012, the Delaware State Police led a multi-agency law enforcement task force investigating drug sales in Kent County. The task force used wiretaps to monitor communications between the target of the investigation, Galen Brooks, and Michael Demby, according to court documents.

Based on the wiretap evidence, the police believed a drug deal was about to take place and began surveillance at the McKee Crossing Shopping Center and the home of Brooks’ father. In a call, police allegedly heard Brooks telling Demby to prepare a package of cocaine and bring it to the buyer, who would be driving a Dodge Caravan, the court said in its opinion.

At the McKee Crossing Shopping Center, the police saw Dashawn Ayers in a Dodge Caravan, according to court documents. The police alleged Demby and Brooks’ brother, James Brooks, parked next to the Caravan. Demby got out of his car and entered the Caravan, while James Brooks went into a store. After a few minutes, Demby exited the Caravan and went into the same store as Brooks. Eventually, Demby and Brooks left the shopping center, followed shortly by Ayers.

The Delaware State Police stopped Ayers’ car, but he fled when he was asked to exit the vehicle, according to court documents. The police opted not to follow Ayers because of public safety concerns.

After the shopping center meet, the police continued monitoring Galen Brooks’ phone conversations. Ayers eventually turned himself in and the police arrested Demby after witnessing him exchange money with Brooks based on a recorded telephone conversation. Both men were indicted on several charges, including drug dealing, aggravated possession and conspiracy in the second degree.

Prior to trial, both appellants sought to have the wiretap evidence suppressed, but their motion was denied. Ayers was convicted on all counts, while Demby was found guilty on four counts. Both Ayers and Demby filed separate appeals challenging the wiretap evidence, but the court consolidated their claims.

The appellants charge that admission of the wiretap recordings violated their right to confront their accuser under the Sixth Amendment of the U.S. Constitution and Article I, Section 7 of the Delaware Constitution. Furthermore, the appellants contended that the wiretap recordings were testimonial in nature because U.S. Drug Enforcement Administration Special Agent Jeffrey Dunn testified about the meaning of the special coding used in the wiretaps.

A three-justice panel composed of Chief Justice Leo E. Strine Jr. and Justices Carolyn Berger and Henry duPont Ridgely rejected their claims. The court held in Ayers v. State and Demby v. State that the appellants could have challenged the wiretap recordings during their trial.

“It is true that Dunn may have misinterpreted the coded language, but his interpretation was open to challenge during cross-examination,” Berger said. “In addition, Ayers could have presented his own witnesses to testify that the wiretap recordings meant something entirely different. In sum, admission of the wiretap recordings did not violate the Sixth Amendment.”

The court said under McGriff v. State, a 2001 state Supreme Court decision, a defendant’s right to meet witnesses face-to-face is not mandatory in all circumstances. Under Article 1, Section 7 of the Delaware Constitution, a face-to-face confrontation is preferred, but not mandatory in all circumstances, the justices said. The justices added that exceptions can be made if the evidence has a particular guarantee of trustworthiness.

“The record establishes that there was a conspiracy between Demby, Ayers [and] Brooks … and that the wiretap statements were made in furtherance of the conspiracy,” Berger said.

Ayers and Demby raised an unrelated claim alleging the state violated the double jeopardy clause by indicting both on separate charges of drug dealing and aggravated possession. The Supreme Court concluded that the offenses do not include all the same elements, but acknowledged that the crimes can be merged for the purposes of sentencing. In the opinion, the court remanded the case back to the trial court for new sentencing based on the merged charges.

Benjamin A. Schwartz of Schwartz & Schwartz represented Ayers, and Andre G. Beauregard of Brown, Shiels & Beauregard represented Demby.

Andrew J. Vella of the Department of Justice in Wilmington argued on behalf of the state.  

Jeff Mordock can be contacted at 215-557-2485 or jmordock@alm.com. Follow him on Twitter @JeffMordockTLI.