Opinion
Cr.A. Nos. IK97-05-0094, IK97-05-0096, IK98-06-009, IK98-06-0010 Supreme Court No. 69, 1999 ID No. 9705000270
Submitted: January 30, 2002
Decided: February 15, 2002
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 Kevin M. Howard, Esq., Jeffrey J. Clark, Esq. for the defendant.
REPORT PURSUANT TO SUPREME COURT RULE 19(c)
This Report is submitted 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. On the murder charge, this Court sentenced Banther to life imprisonment. His convictions are on direct appeal subject to the present remand by the Supreme Court to this Court to complete the record concerning responses by Jane Smith, jury foreperson, to questions asked by the Court during voir dire before trial and a remand hearing after trial.
A pseudonym has been assigned by the Supreme Court pursuant to Supreme Court Rule 7(d).
During voir dire on September 21, 1998 the Court asked Smith: "Have you or a close friend or relative been a victim or witness to a violent crime?" Smith replied: "No, your honor." After Banther's conviction and appeal, Banther's amended motion for new trial regarding Smith's qualification for jury service was remanded to this Court for a hearing. Smith testified at that October 5, 2000 hearing in response to a question about her employment history, "I had been assaulted and became pregnant, did not believe in abortion and I went through an open adoption with my son who is now eight." On appeal Banther has argued he is entitled to a new trial because Smith gave a false answer to a material question during her initial voir dire about being a victim of a violent crime.
Dkt. No. 157 (Tr. of Voir Dire on Sept. 21, 1998 at p. 5).
Dkt. No. 160 (Tr. of Evidentiary Hr'g on Oct. 5, 2000, Vol. B, at p. 13).
This matter is now before this Court pursuant to a second remand from the Supreme Court "for the purpose of determining the nature of the assault referred to by Smith that resulted in her pregnancy, whether the assault involved an arrest and prosecution and the reason for Smith's negative response to the violent crime question."
Banther v. State, Del. Supr., 783 A.2d 1287, 1292 (2001).
II. THE REMAND HEARING
An in camera hearing was held on November 30, 2001. Present at this hearing were counsel for the State, counsel for Banther, Jane Smith, and her court-appointed counsel. At the hearing the Court questioned Ms. Smith at length and also asked her questions suggested by counsel. During her testimony she referred to hospitalizations after a January 2000 assault and when she was a teenager. At the conclusion of the hearing the Court requested Smith to sign authorizations for release of her medical records pertaining to hospitalizations about which she testified. She did so and the records have been reviewed by the Court and counsel after the remand hearing. They have been filed under seal. The Court also directed the State to do an NCIC criminal history search on two persons identified by Smith during the hearing. One person was identified by Smith as the father of her son, the other was identified by Smith as her paternal grandfather. The State did so and the results of that search show no criminal history for either of those persons.III. FINDINGS OF FACT
After careful consideration of the evidence and the record, I find the following facts:
A. The nature of the assault that resulted in her pregnancy
During the original remand hearing Smith mistakenly combined into one answer two separate events. The first event she referred to was a sexual assault in January of 2000, approximately 14 months after her jury service. The other event was the birth and adoption of her son. In that instance the sexual relationship was with her consent. The January of 2000 assault involved five men, one with a knife drawn, behind the Adams Four Shopping Center in Wilmington, Delaware. As a result of this assault by persons she could not identify by name, Smith became pregnant. This pregnancy ended in May of 2000 due to miscarriage.
B. Whether the assault involved an arrest and prosecution
There were no arrests nor was there any prosecution for this sexual assault. While Smith reported the assault to her doctors, she did not file a complaint with the police because she was then on probation for thefts misdemeanor, then addicted to drugs, and fearful of the assailants who knew her from the neighborhood she lived in.
C. The reason for Smith's negative response to the violent crime question
Smith gave a negative response to the violent crime question during voir dire because that answer was true at the time she gave it. She explained during the remand hearing that:
At the time of the voir dire, during the jury selection, I was not a victim of a violent assault. My rape did not transpire until 2000, which was after the trial of Mr. Banther.
Dkt. No. 179 (Tr. of In Camera Remand Hr'g, Nov. 30, 2001 at p. 24-25).
There was another circumstance involving unlawful sexual contact, however. Smith disclosed during this hearing that she was molested as a child by her paternal grandfather and received in-patient counseling for that as a teenager. During voir dire she did not consider this sexual abuse to be a violent crime. There was no criminal prosecution for this sexual abuse and no arrest of her grandfather who is now deceased. When asked why this was not disclosed during voir dire, Smith testified:
I never even considered it, A, a violent act; B, it was never an issue for me. During my voir dire and questioning, I answered honestly and to the best of my ability, and at that point in my life, upon questioning with you, I did not consider myself at all involved in a violent crime or a victim of a violent crime. The Court accepts her explanations.
Id. at p. 42.
IV. CONCLUSIONS OF LAW
The responses given by Smith during voir dire as supplemented by the record after trial demonstrate that Smith answered the violent crime voir dire question honestly. At the time of Banther's trial there would have been no valid basis for a challenge of Smith for cause. Contrary to Banther's arguments, I find no basis here to grant a new trial.The Prothonotary shall transmit forthwith this report and the record to the Clerk of the Supreme Court of Delaware.
IT IS SO ORDERED.