Opinion
I.D. #0102021276
Submitted: May 3, 2002
Decided: June 4, 2002
On Defendant's Motion for a New Trial.
DENIED.
Dear Ms. Kelsey and Mr. Witherell:
Currently before the Court is Defendant's Motion for a New Trial (the "Motion"). For the reasons set forth below, the Motion is DENIED.
Defendant was charged with Trafficking in Cocaine (title 16, section 4753A(a)(2)(c) of the Delaware Code), Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance (title 16, section 4751 of the Delaware Code), Use of a Dwelling for Keeping Controlled Substances (title 16, section 4755(a)(5) of the Delaware Code), Conspiracy Second Degree (title 11, section 512 of the Delaware Code), and Possession of Drug Paraphernalia (title 16, section 4771 of the Delaware Code). Trial commenced in Court of Common Pleas Courtroom 105 of the Daniel L. Herrmann Courthouse in Wilmington, Delaware on February 26, 2002, and on March 1, 2002, a jury found Defendant guilty of all five counts with which he was charged.
Court of Common Pleas Courtroom 105 was used for this Superior Court trial so that the Court of Common Pleas could use a Superior Court courtroom for a Court of Common Pleas criminal case that apparently had security issues more easily addressable in a Superior Court courtroom.
Defendant filed a motion for a new trial pursuant to Superior Court Criminal Rule 33. That rule provides that the Court "on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." "A motion other than one made during a trial or hearing . . . shall state the grounds upon which it is made and shall set forth the relief or order sought . . . [and] may be supported by affidavit."
Super. Ct. Crim. R. 33.
Super. Ct. Crim. R. 47.
DEFENDANT'S CLAIMS, THE STATE'S RESPONSES, AND THE COURT'S ANALYSIS, SERIATIM CLAIM ONE (The Courtroom Layout Claim)
Paragraph Two of Defendant's Motion sets forth this claim and states, in its entirety:
2. Defendant contends that the very layout of the Courtroom is nothing less than prejudicial to the defendant. Specifically, the jury (or at least jurors 1 and 2) is literally within arms reach, if not closer, to the prosecution table. All dealings at that table are within plain sight of these jurors. It is reasonably believed that all documents held by or displayed by the prosecution while at the table were readily available for the jurors to read. It is further believed that all communication between the State prosecutor and the State's lead investigator was overheard by at least jurors 1 and 2, juror 1 being the foreman.
Def.'s Mot. ¶ 2.
The State's response to this claim, in its entirety, is as follows:
The defendant's first allegation in support of a new trial is that jurors number one and two were seated immediately behind the prosecution table and within arms reach of the prosecutor, myself, and the chief investigation officer, Detective Michael Rodriguez. The State cannot deny that the jurors were right next to the prosecution table. It was apparent to everyone that they were. In fact, Detective Rodriguez and I discussed how close to each other they were and complained they we could not converse during the trial because the jurors were so close. We were both extremely careful to keep conversation to a minimum, to keep the conversation to barely audible whispers and to not leave evidence or reports on the table, unless we were using them.
The State would point out that the position of the jurors was very much evident during the trial. The defendant, however, never expressed any displeasure to the Court regarding the obviously uncomfortable courtroom. It is the State's position that the defense cannot wait to see how the verdict comes in and then complain about things that if objectionable were objectionable during the trial. State v. Halko, 193 A.2d 817 (Del.Super. 1963). Further, the defense is merely speculating that the jurors could have seen something on the State's table. There is no evidence or even the suggestion of evidence that any juror did see anything. The State was certainly aware of the proximity of the jurors and made extra efforts to make sure that nothing was seen or overheard. The defendant must show that some or all of the jurors saw something that prejudiced the defendant's rights. Id.
State's Resp. at 1-2.
The applicable rule of law, insofar as the necessity of making timely objections at trial is concerned, is found in State v. Halko. In Halko, a criminal defendant was convicted of driving while under the influence of alcohol and subsequently filed a motion for acquittal or new trial. The basis for the defendant's motion was that newspaper articles about the defendant's arrest had appeared in the local paper during the trial and that the court had failed to admonish the jury not to read such articles while trial was pending.
193 A.2d 817 (Del.Super.Ct. 1963), aff'd, 204 A.2d 628 (Del. 1964).
Id.
In its denial of the defendant's motion, the Court held that counsel "must preserve alleged errors committed by the Court by timely and sufficient objections and requests if [counsel] wish[es] to assert such matters as grounds for new trial," and that a defendant "cannot gamble on [the defendant's] chances for a favorable verdict and, if disappointed, then seek to use the alleged error as grounds to obtain another trial."
Id. at 830 (citations omitted).
While Halko involved an error allegedly committed by the Court, the principle involved there applies to Defendant's Motion as well. Defendant does not assert that an objection was made at trial to any aspect of the allegedly "prejudicial" layout of Courtroom 105 (and the Court recollects none). Defendant now raises this claim for the first time in this post-trial motion. This claim is untimely and the "interests of justice" do not otherwise warrant the granting of a new trial. Accordingly, Defendant's first asserted claim is DENIED.
CLAIM TWO (The State's Alleged Improper Closing Argument)
Paragraph Three of Defendant's Motion sets forth this claim and states, in its entirety:
3. The State improperly made comments before the jury in closing which related to material not in evidence and was clear witness vouching.
Def.'s Mot. ¶ 3.
The State's response to this claim, in its entirety, is as follows:
The defendant next asserts that the State made improper comments in closing. The defendant does not articulate what those comments were. The defendant does not even give a hint as to the subject matter of those comments. It is the State's position that no improper comments were made during closing. On the state of the record, the State is unable to respond with any particularity.
State's Resp. at 2.
This utterly sparse claim has no factual support whatsoever. No indication is given that any objection was made. This Court does not know (nor apparently does the State) what Defendant may be complaining about. The "interests of justice" do not compel a new trial on this claim. Defendant's second asserted claim is therefore DENIED.
See, e.g., Wells v. Clayton Homes Inc., 1995 WL 160932 (Del.Super.) (holding in context of civil trial that new trial was not warranted based on alleged improper closing statement of counsel where no transcript was offered to the Court and no objection was raised at trial).
CLAIM THREE (Interpreter's Comments)
Paragraph Four of Defendant's Motion sets forth this claim and states, in its entirety:
4. Counsel learned from the interpreter that, in passing in the hall, juror 2 was speaking on the phone and was overheard to say "now it's just the attorneys splitting hairs". Counsel is unaware if there was any further communication regarding specific facts of the case.
Def.'s Mot. ¶ 4.
The State's response to this claim, in its entirety, is as follows:
The defendant next asserts that "the interpreter" overheard a juror speaking on the phone and saying "now it's just the attorneys splitting hairs". Surely, such a comment is improper, but the comment cannot under any set of circumstances be said to show a bias on the part of the juror. While the State would agree that juror bias cannot be tolerated in our judicial system, there are at the same time sound reasons for limiting after-the-fact inquiries into judicial verdicts. Styler v. State, Del. Supr., 417 A.2d 948 (1980). The Courts do not want jurors to be harassed by the defeated party. Id. The Courts also do not want to make what were intended to be private deliberations the subject of constant public investigation. Id. The Courts must give the closest scrutiny to motions for a new trial based upon jury deliberations that are the newly discovered evidence. Id. In this particular case the defense is alleging what can only be characterized as "loose talk" and not an allegation of improper bias. "Loose talk" does not warrant a new trial or even further investigation. Id.
State's Resp. at 2.
The holding of Styler v. State controls this claim. In Styler, the Delaware Supreme Court held that the trial judge did not commit an abuse of discretion when the trial judge determined that a juror's "loose talk", i.e., general statements about a pending case in response to a spectator's questions, did not show a reflection of an improper bias against the defendant. In answering the defendant's argument that juror bias warranted a new trial, the Supreme Court stated that there are "sound reasons for limiting after-the-fact inquiries into jury verdicts," and that if left unchecked, such inquiry would lead to juror harassment "by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict." "Potentially suspicious circumstances do not justify such inquiry . . . [s]omething more than unverified conjecture must be shown."
417 A.2d 948 (Del. 1980).
Id. at 953.
Id. at 952 (citations omitted).
Lovett v. State, 516 A.2d 455, 475 (Del. 1986) (citations omitted) (holding that unverified allegations that a juror had admitted being "pressured" into his decision and that the jury may have participated in or been exposed to an extra-judicial discussion of a prosecution for first-degree murder amounted only to speculation that the jury reached their verdict improperly).
Here, nothing is alleged other than that a juror "was overheard" during a telephone conversation to say "now it's just the attorneys splitting hairs". No indication is made as to why this matter was not brought to the Court's attention during the trial. However, even if this circumstance had been raised during trial, such a statement does not necessarily reflect improper bias against the Defendant, as it is a general statement akin to the "loose talk" contained in Styler. Defendant's third claim is nothing more than "unverified conjecture." The "interests of justice" do not require a new trial. Defendant's third claim is DENIED.
* * *
This Court is compelled to comment further on Defendant's Motion for New Trial. Defendant's motion for a new trial is completely devoid of any reference to any reported or unreported case or to any treatise (Superior Court Criminal Rule 33 is mentioned but not discussed). Defendant's factual allegations (if they can be deemed such) are utterly lacking in any specificity. The body of the motion is only about 175 words. This Court cannot fault the State for its brief responses to Defendant's claims, given the vagueness and extreme brevity of the Motion. Defendant had been permitted an extension of time to file the Motion. Defendant makes no request in his Motion for any hearing or to further develop the record, and this Court declines sua sponte to convene a hearing nor will it otherwise further develop the record.
Dkt. No. 16.
"Since the purpose of a motion for a new trial is to inform the court to which it is addressed of the grounds for setting the verdict and judgment aside, the grounds for a new trial upon which the applicant relies ordinarily must be assigned in the motion." "In deciding on the motion, the trial judge may utilize the knowledge he gained from presiding at trial as well as the showing made on the motion." A post-trial motion "may be supported by affidavit." "Thus, a motion for a new trial ordinarily may be decided upon affidavits without an evidentiary hearing."
58 Am. Jur. 2d New Trial § 501 (1989).
5 Lester B. Orfield Mark S. Rhodes, Orfield's Criminal Procedure Under the Federal Rules § 33:56, at 356-57 (2d ed. 1987).
Super. Ct. Crim. R. 47.
58 Am. Jur. 2d New Trial § 517 (1989).
Here, Defendant chose to not file any supporting affidavits; when appropriate, motions for new trials in criminal cases should be accompanied by affidavit(s). Defendant has made no "showing" in the Motion that a new trial should be granted. Having found that none of the grounds raised by Defendant in his Motion for a New Trial warrant the relief requested, Defendant's Motion is DENIED. Sentencing will take place on June 14, 2002 at 9:30 a.m..
IT IS SO ORDERED.