Opinion
Cr.A. Nos. 1K97-05-0094, 1K97-05-0096, 1K98-06-009, 1K98-06-0010
Submitted: October 13, 2000
Decided: November 8, 2000
Upon Defendant's Amended Motion for New Trial DENIED, Supreme Court No. 69, 1999
John Williams, Esq., Robert J. O'Neill, Jr., Esq., and Stephen R. Welch, Jr., Esq., Deputy Attorneys General, for the State of Delaware.
Edward C. Gill, Esq., and David IV. Jones, Esq. of the law firm of Brown, Shiels and Chasanov, for the defendant.
OPINION
Defendant Bruce R. Banther, Jr. stands convicted of Murder in the First Degree, 11 Del. C. § 636, Possession of a Deadly Weapon During the Commission of a Felony, 11 Del. C. § 1446, Forgery in the Second Degree, 11 Del. C. § 861, and Theft Felony, 11 Del. C. § 841. On the murder charge, this Court sentenced Banther to life imprisonment. His convictions are on direct appeal subject to a remand by the Supreme Court to this Court for consideration of Banther's amended motion for new trial. Banther alleged newly discovered evidence. After an evidentiary hearing and consideration of the arguments of counsel, I find no basis to grant a new trial in this case.
I.
Banther's amended motion for new trial asserted three claims: (1) discovery of an alleged written confession by co-defendant John Schmitz; (2) the alleged existence of recorded telephone conversations between the homicide victim Dennis Ravers and John Schmitz; and (3) the alleged mental disability of the jury foreperson.
At the evidentiary hearing on his motion Banther abandoned his first two claims. In support of the remaining claim, Banther alleged: (a) cocaine use by the jury foreperson during the 1998 jury trial, and (b) the existence of a mental illness which disqualified her from jury service. Banther argues that he was deprived of a fair trial before an impartial and mentally competent jury.
The trial began on September 21, 1998 and concluded with the jury recommendation on November 4, 1998 by a vote of 11 to 1 that the aggravating circumstances in this case did not outweigh the mitigating circumstances.
10 Del. C. § 4509(b) provides in part:
All persons are qualified for jury service except those who are:
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(5) incapable, by reason of physical or mental disability, of rendering satisfactory jury service; . . .
II.
Turning first to the alleged cocaine use, there is no proof that the jury foreperson was using cocaine at any time during the trial of this case. In any event, Banther's claim involves an alleged internal, not an external, influence which is insufficient to impeach the jury verdict.
Tanner v. United States, 483 U.S. 107, 117 (1987); D.R.E. 606(b). See also Fisher v. State, Del. Supr., 690 A.2d 917, 920-21 n. 4 (1996).
III.
As to the mental illness claim, due process requires that jurors be sane and competent during trial. If there is clear evidence of a juror's incompetence to understand the issues and to deliberate at the time of his or her service, the jury's verdict will be set aside. "And only strong evidence that it is likely that the juror suffered from such incompetence during jury service will justify an inquiry into whether such incompetence in fact did exist." In this case, Banther alleged hospitalizations for multiple personality disorder at unspecified times prior to trial and an involuntary commitment for her own safety more than 9 months after trial on August 27, 1999. As a matter of law, these allegations are insufficient to require further post-verdict inquiry because they did not provide "strong evidence" of incompetence during jury service.Notwithstanding the inadequacy of Banther's allegations, the Court in its discretion, chose to conduct an in camera inquiry of the jury foreperson and to review the 1999 commitment proceedings before this Court in New Castle County. The evidence shows that at the time of trial the juror was 26 years old. She was the general manager of a hotel in Dover, Delaware where she supervised 38 employees and performed all of the daily functions of running a hotel. Her prior employment included the general management of hotels in various locales after her graduation in 1992 from college with an Associates Business Science Degree. In 1986 she was hospitalized and treated for depression. However, at the time of trial she did not suffer from any physical or mental impairment that would have prevented her from intelligently considering the evidence and applying the law as instructed by the Court. I am convinced that she possessed at trial the ordinary capacity to observe, listen, understand, discuss the evidence, find the facts beyond a reasonable doubt, and to apply the law to the facts in this case. In short, she was fully capable of rendering satisfactory jury service.
The Supreme Court has recognized that this Court has "broad discretion in determining the mode and depth of investigative hearings" in post-verdict inquiries of jurors. Massey v. State, Del. Supr., 541 A.2d 1254, 1257 (1988).
When a challenge of a juror's competence is made, it is also appropriate for this Court to draw upon its personal knowledge and recollection of events that occurred in its presence. Government of Virgin Islands v. Nicholas, 3d Cir., 759 F.2d 1073, 1077 (1985). This juror was the third prospective juror questioned at trial through individual voir dire. She understood each of the thirty questions asked by the Court and answered them appropriately. Neither the State nor Banther challenged her for cause nor did either exercise a peremptory challenge. The Court gave her specific instructions regarding no discussion of the case, reporting requirements, no visitation of any premises or place involved, and no reading, viewing or listening of media accounts of the case. The juror understood each of these instructions. Transcript of voir dire at p. 10 (September 21, 1998). She also confirmed throughout the trial that she had followed them. She was attentive and exhibited no unusual behavior at trial and Banther has alleged none.
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Banther has not shown that he was deprived of a fair trial before an impartial and mentally competent jury. Nor has he shown this Court any reason why a new trial should be granted in the interests of justice.
Accordingly, the amended motion for new trial is denied. The Prothonotary shall return the record in this matter to the Supreme Court forthwith.
IT IS SO ORDERED.