Opinion
ID No. 9705000270
Decided: December 17, 2002
Cr.A. Nos. IK97-05-0094, IK97-05-0096, IK98-06-0009, IK98-06-0010 Supreme Court No. 69, 1999
REPORT PURSUANT TO SUPREME COURT RULE 19(c)
This 17th day of December, 2002, the following is reported to the Delaware Supreme Court pursuant to Supreme Court Rule 19(c).
I. BACKGROUND
In October of 1998, Defendant Bruce R. Banther, Jr. ("Banther") was convicted by a jury 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. The jury acquitted Banther of Conspiracy in the First Degree, 11 Del. C. § 513. After a separate penalty hearing on the punishment for Murder in the First Degree the jury recommended by an 11 to 1 vote that the aggravating circumstances found to exist did not outweigh the mitigating circumstances in the case. On the murder charge, this Court sentenced Banther to life imprisonment. His convictions are on direct appeal subject to the present remand.
The present remand was made on August 27, 2002 with three directions. First, the Court was directed to grant Banther'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. Second, the Court was directed to grant Banther's request for funds to hire a mental health expert to render an opinion about the forelady's competence to serve as a juror. The order of remand said that Banther's attorneys should promptly make the results of these investigations known to the Court and the State and file any application for supplemental proceedings with this Court. Third, the Court was directed to make further findings of fact and conclusions of law on both issues.
On September 3, 2002 this Court granted both of Banther's requests for funds. On October 10, 2002 Banther's counsel submitted a report from Dr. Rodgers Wilson, Board Certified Psychiatrist. On October 25, 2002 Banther's counsel submitted a report from Intercontinental Investigations, Inc. Copies of these reports are attached to this Report. At an office conference on October 30, 2002 neither Banther nor the State requested any supplemental proceedings. Instead Banther argues that the Court should consider the two reports as a basis for further findings of fact and conclusions of law. The State objects on hearsay and other grounds to the admissibility of the reports. The State further argues that even if considered, there is nothing in the reports to change the findings and conclusions already made.
II. THE ADMISSIBILITY OF THE REPORTS
The State opposes the admission of the reports because they are written hearsay within the meaning of D.R.E. Rule 801(c) and thus inadmissible under D.R.E. Rule 802. The State argues that to the extent the Intercontinental Investigations' report recounts statements of others it is double hearsay. The State also argues that Dr. Wilson admits in his report that he cannot at the present time render an opinion "with reasonable psychiatric probability as to whether the Juror was capable or incapable of rendering satisfactory jury service at the time of the trial." The State further argues that the factual predicate for his other opinions of "cocaine dependence" at the time of the trial has not been proven. Banther argues that the Rules of Evidence do not apply because D.R.E. Rule 1101 states the Rules are inapplicable to preliminary questions of fact under D.R.E. Rule 104 and the issue of juror qualification is such a question.
The Rules themselves address the admissibility of evidence at post-verdict hearings involving the validity of a verdict. There is a basis for the State to object as it has. At the same time, this Court has broad discretion in determining the mode and depth of investigative hearings involving jurors and I have exercised that discretion in this case. I need not decide the limits of that discretion because even when the reports are considered, the outcome is the same.
See D.R.E. Rule 606(b).
Massey v. State, 541 A.2d 1254, 1257 (Del. 1988).
III. BANTHER'S SUBMISSIONS DO NOT SHOW THAT A NEW TRIAL IS WARRANTED
Considering all of the information presented, this Court remains satisfied that the juror answered the voir dire honestly and to the best of her ability. Although prior to the trial she had been a victim of sexual abuse by her grandfather, she did not consider this to be a crime of violence. Furthermore, the circumstances of her sexual abuse would not have been a valid basis for a challenge for cause in this case.
Banther was charged with the ax murder of Dennis Ravers. The juror was the victim of sexual abuse by her grandfather. Although a St. John's Hospital psychiatric record dated January 4, 1988 describes a claim of rape "at the age of 12 by a black man on an elevator at knife point," I am not persuaded that actually happened. There is nothing to corroborate the accuracy of that reference in the Intercontinental Report or otherwise. During the in camera proceedings before this Court the juror candidly disclosed very personal and intimate information about herself and her family. I have evaluated her credibility and accept her testimony that at the time of Banther's trial she had not been a victim of a violent assault nor did she believe that she had in any way been involved in a sexual assault (Tr. of In Camera Remand Hr'g, Nov. 30, 2001, Docket No. 179 at pp. 24, 42).
Nor does Dr. Wilson's report show that the juror was not competent to serve at the time of Banther's trial. Dr. Wilson has expressly acknowledged that he himself is unable to give any opinion on her competency as of the time of trial. It is her competency at the time of trial which is at issue here. At that time the juror was 26 years old and 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. This Court remains satisfied from the evidence presented and my own observations of the juror at the time of trial that she was fully capable of rendering satisfactory jury service. She had 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 of this case.
IV. CONCLUSION
This Court's findings of fact and conclusions of law are unchanged. Banther has not shown that he was deprived of a fair trial before an impartial and mentally competent jury. Nor has he shown that a new trial is warranted in the interests of justice. The Prothonotary shall transmit forthwith this report and the record to the Clerk of the Supreme Court of Delaware.
IT IS SO ORDERED.