Opinion
No. 69, 1999
Submitted: June 12, 2002
Decided: August 27, 2002
Court Below — Superior Court of the State of Delaware, in and for Kent County Cr.A. Nos. IK 97-05-0094 0096; IK98-06-0009 0010 Def. ID No. 9705000270
Before VEASEY, Chief Justice, WALSH, HOLLAND, BERGER and STEELE, Justices (constituting the Court en Banc).
ORDER
This 27th day of August 2002, it appears to the Court that:
1) This matter is now before this Court following a second remand to the Superior Court. One of the issues to be addressed on remand was if the forelady of Banther's jury accurately answered the voir dire question about whether she had been the victim of a violent crime. The record reflects that the forelady has given inconsistent responses to that question. Moreover, the forelady's most recent response appears to be contradicted by her medical records. Consequently, the only objective evidence in the record undermines the forelady's credibility on that issue.
2) Banther argues that the Superior Court erroneously denied a defense request for funds to hire an investigator to address the issue of whether the forelady had been the victim of a violent crime prior to her service as a juror. This Court agrees. The issue of whether the forelady was the victim of a prior violent crime must be resolved by the Superior Court on the basis of objective evidence provided by credible third parties and/or reliable documentary evidence.
3) This matter is remanded to the Superior Court with directions to grant the defendant's request for funds to hire an investigator to interview third parties and to obtain documentary evidence regarding whether the forelady was the victim of a prior violent crime. The investigation should be completed on or before October 1, 2002. Banther's attorneys should promptly make the results of the investigation known to the Superior Court and to the State and file any application for supplemental proceedings with the Superior Court.
4) A second issue raised by Banther relates to the mental competence of the forelady during the course of her service as a juror. Title 10 Del. C. § 4509(a) of the Delaware Code requires the trial court to "determine on the basis of information provided on the juror qualification form or interview with the prospective juror or other competent evidence whether the prospective juror is disqualified for jury service." Section 4509(b)(5) states that jurors who are "[i]ncapable, by reason of physical or mental disability, of rendering satisfactory jury service" are not qualified to serve.
5) Despite the statutory directive to determine each prospective juror's mental competence, the venire called for Banther's trial was not asked about their mental health on the standard juror qualification form or during the general or individual voir dire in this case. The record reflects that the forelady received extended treatment by mental health care professionals prior to her service as a juror. In addition to her medical history of mental health treatment, the record reflects that throughout her jury service the forelady was the subject of an ongoing criminal investigation for embezzlement that culminated in her arrest and conviction immediately after her jury service was concluded. Unfortunately, the forelady did not disclose the ongoing criminal investigation in response to any voir dire question or as that investigation continued during Banther's trial.
6) Upon remand, even after the forelady's medical history and the on-going criminal investigation became known, the Superior Court denied the defendant's request to hire a mental health professional to examine the forelady's medical records and to render an expert opinion on her mental competence. The forelady's prior history of mental health treatment and the stress of an ongoing criminal investigation during her jury service justified further inquiry. The Superior Court erroneously denied the defendant's request for funds to hire a mental health expert to opine on the forelady's competence to sit as a juror in a murder in the first degree case, in particular, where the State was seeking the death penalty.
See, e.g., United States v. Dioguardi, 492 F.2d 70 (2d Cir. 1974).
7) This matter is remanded to the Superior Court with directions to grant the defendant's request for funds to hire a mental health expert to render an opinion about the forelady's competence to serve as a juror. That opinion should be finalized on or before October 1, 2002. Banther's attorneys should promptly make the mental health expert's opinion known to the Superior Court and to the State and file any application for supplemental proceedings with the Superior Court.
Id. 4
NOW, THEREFORE, this matter is remanded for further proceedings in accordance with this order. The Superior Court is directed to make further findings of fact and conclusions of law on both of the issues addressed in this order. The Superior Court should either file a report or advise this Court of the status of the remand proceedings on or before November 1, 2002. Jurisdiction is retained.
Supr. Ct. R. 19(c). 5