Opinion
No. 217, 2001.
Decided: March 18, 2002.
Court Below: Superior Court of the State of Delaware in and for Kent County Cr.A. Nos. IK00-05-0038, 0043, 0045 and 0050.
Before WALSH, HOLLAND and BERGER, Justices.
Affirmed.
Unpublished opinion is below.
COREY WASHINGTON, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 217, 2001 In the Supreme Court of the State of Delaware. Submitted: January 29, 2002 Decided: March 18, 2002
ORDER
This 18th day of March, 2002, upon consideration of the briefs of the parties, it appears to the Court that:
1) Corey Washington appeals from his convictions, following a jury trial, of Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance and six other related offenses. He contends that the trial court's denial of his motion to dismiss violated the double jeopardy protections afforded under our state and federal constitutions.
2) On November 21, 2000, Washington went to trial on six of the thirteen charges in his indictment. The next day, the court declared a mistrial. On December 18, 2000, the date set for the second trial, the State used four of its five peremptory challenges to remove racial minorities from the jury. After jury selection was complete, but before the jury was sworn, Washington objected to the composition of the jury.
3) The trial judge decided that Washington had met his burden of establishing a substantial likelihood that the State improperly exercised its peremptory challenges on the basis of race. As a result, the State was required to demonstrate that its strikes were not racially motivated. The trial court listened to the State's explanations and found that the State had met its burden with respect to only two of the four challenges. Washington then moved for a mistrial, and his motion was granted.
4) On January 10, 2001, shortly before the third trial was scheduled to begin, Washington moved to dismiss the charges. He argued then, as he does now, that the State's peremptory challenges in the December trial were intended to goad Washington into moving for a mistrial. He relies heavily on the prosecutor's comment that he was "sure that [Washington's counsel] will raise Batson if I strike this woman."
The prosecutor was referring to Batson v. Kentucky, 476 U.S. 79 (1986), which held that prosecutors may not challenge potential jurors solely on the basis of their race.
5) Washington's appeal lacks merit. The trial court correctly ruled that jeopardy had not attached at the time that Washington requested and was granted a mistrial because of the Batson issue. In addition, the trial court found that the State did not exercise its peremptory challenges in an effort to provoke a mistrial. As the court noted, the State was prepared to go forward; it opposed Washington's Batson challenge; and it had nothing to gain by delaying the case.
Hughey v. State, 522 A.2d 335 (Del. 1987).
See: Oregon v. Kennedy, 456 U.S. 667 (1982) (Defendant who successfully moves for a mistrial may not invoke double jeopardy protections unless mistrial is required because of prosecutor's conduct, which was intended to goad defendant into moving for a mistrial.).
NOW, THEREFORE, IT IS ORDERED that the judgments of the Superior Court be, and the same hereby are, AFFIRMED.