Opinion
No. 202, 1998.
February 4, 1999.
Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr.A. Nos. IN97-04-0085 and 0086.
AFFIRMED.
Unpublished Opinion is below.
CHRISTOPHER TOTH, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 202, 1998. In the Supreme Court of the State of Delaware. Submitted: January 26, 1999. Decided: February 4, 1999.
Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr.A. Nos. IN97-04-0085 and 0086.
Before VEASEY, Chief Justice, WALSH, and HOLLAND, Justices.
ORDER
This 4th day of February, 1999 upon consideration of the briefs of the parties it appears to the Court as follows:
(1) The appellant, Christopher Toth ("Toth"), appeals from his convictions of Arson Second Degree and Possession of Bombs, Incendiary Devices, Molotov Cocktails and Explosives following a jury trial in the Superior Court. He asserts two claims of error: (1) that the trial court improperly admitted certain "bad acts" testimony; and (2) that the trial court improperly conducted an ex parte examination of a juror in camera. Both claims are asserted as plain error. We find no merit in either claim.
(2) Toth contends that the trial court erred in permitting a witness to testify that Toth had physically mistreated his girlfriend. A review of the record indicates that this testimony occurred during cross-examination by Toth's trial counsel who neither moved to strike the answer as non-responsive nor requested a curative instruction. We conclude that Toth has waived his right to challenge the admissibility of this evidence. Walton v. State, Del. Supr., 407 A.2d 535, 536 (1979). Indeed, on another occasion, the trial court sua sponte struck other testimony concerning Toth's previous incarceration. Nor does Toth's claim rise to the level of plain error. The disputed testimony was not elicited by the State and its admission did not affect a fundamental trial right or constitute manifest injustice. Wainwright v. State, Del. Supr., 504 A.2d 1096, 1100 (1986).
(3) Toth's second claim of error relates to the questioning of a juror who, during deliberations, expressed concern about possible retaliation if the defendant was convicted. This juror had apparently expressed her concern to other jurors. The trial judge questioned this juror and, later, inquired of the entire panel to determine if the jury believed that they could render an impartial verdict. This questioning took place after the trial judge conferred with counsel for the State and the defendant. The trial judge also informed counsel of the substance of the juror interview and made the transcript available to counsel. Although Toth apparently filed a post trial motion for new trial, he has not appealed from the denial of that motion and is deemed to have waived that claim on appeal. Murphy v. State, Del. Supr., 632 A.2d 1150, 1152 (1993).
(4) We conclude that the trial judge handled the juror inquiry with the full knowledge of the defense and the State and without objection to the procedure used. Again, defense counsel's failure to make a contemporaneous objection is fatal to an appeal in the absence of plain error. Under the doctrine of plain error, the claimed error must be fundamental in character and rise to the level of depriving an accused of "a substantial right, or which clearly show manifest injustice." Wainwright, 504 A.2d at 1100. We find no basis to apply the doctrine of plain error in this case. Accordingly, the judgment of the Superior Court must be affirmed.
(5) The Court is quite concerned about certain assertions in Toth's brief which, at a minimum, are lacking in candor and are perhaps materially misleading. Although the testimony which forms the basis for the "bad acts" claim of error was elicited by defense counsel in cross-examination, appellant's brief fails to mention this fact and, indeed, implies that it was elicited by the State. We are also concerned about the description in appellant's brief of the trial court's handling of the juror problem. Our reading of the record indicates that Toth's trial counsel was in agreement with the procedure followed by the trial judge and voiced no objection of the court's questioning of the juror. Toth's brief on appeal nevertheless complains of that procedure, and claims that the result of that examination was not fully disclosed, when, in fact, counsel were given access to the transcript.
On appeal, counsel has an obligation to be candid with the Court in the presentation of the facts of record. We note that Toth's trial counsel does not represent him on appeal. Under the circumstances, Toth's appellate counsel had an affirmative obligation to analyze the record and to present the trial events fairly and accurately. In our view, appellant's brief is not only lacking in candor but may be materially misleading. Accordingly, we direct the Clerk of this Court to direct a Notice to Show Cause to counsel to the appellant pursuant to Supreme Court Rule 33(b) to show cause why they should not be disciplined for performance deficiency for submission of a brief "lacking in candor or grossly below customary professional standards." Supr. Ct. R. 33(b)(ii).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
/s/ Joseph T. Walsh, Justice