Opinion
I.D. No. 0607023686.
Submitted: October 8, 2007.
Decided: December 6, 2007.
Decision upon Defendant's Motion for a New Trial.
Eugene J. Maurer, Jr., Esquire, Wilmington, Delaware, attorney for plaintiff.
Donald R. Roberts, Esquire, and Renee L. Hrivnak, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware, attorneys for the State.
ORDER
For the reasons set forth below in this Court's Memorandum Opinion of December 6, 2007, defendant's Motion for a New Trial is GRANTED.
IT IS SO ORDERED.
MEMORANDUM OPINION
On August 15, 2007, Charles Burley ("defendant") was convicted by a jury of murder in the first degree and possession of a firearm during the commission of a felony. The defendant moves this Court to vacate his convictions and to grant him a new trial. He alleges that the prosecutor inserted race as an issue during trial when it otherwise was not present. He also alleges that the prosecutor's statements during cross examination and rebuttal summation constituted prosecutorial misconduct which prejudiced his right to a fair trial. The motion for a new trial is GRANTED.
Factual and Procedural Background
The defendant was charged with murder in the first degree and possession of a firearm during the commission of a felony in connection with the murder of John Triplett outside LeRoy's After-Hours Club located on the 1200 block of North Claymont Street, Wilmington, Delaware on July 28, 2006 at about 1:20 a.m.
During his preliminary hearing in the Court of Common Pleas, the defendant made a statement against the advice of counsel:
I believe that the Wilmington Police Department, the Magistrate, who gave me an arraignment, the Public Defender's Office, the Prosecutor's Office, and this Honorable Court has conspired willingly or unwillingly against me in this case, in part or all, in classism, racism, unethical behavior, ineffective assistance of counsel, potential criminal behavior, and maybe other unconstitutional issues. And having said that, I don't believe I can get a fair preliminary hearing. We're just as ready today, as we were three weeks ago, two weeks ago, I believe. So, having said that, I would like the Court to dismiss this and let another forum handle that.
Prelim. Hr'g Tr. 4, Aug. 18, 2006.
Judge Bradley responded: "Well, the forum that you would have in mind, is God, and we don't have any direct access to him. So, this is the forum. This is the forum. I don't know you. Take a seat. We're ready for preliminary hearing." The preliminary hearing proceeded and concluded without any other notable comment. The Judge found probable cause for the pending charges. The defendant was indicted by the Grand Jury on August 21, 2006.
Id. at 5.
The case progressed to trial. Before voir dire, counsel and the Court agreed that no question about racial bias was necessary because both the victim and the defendant in this case are African-American.
Phillips v. State, 2005 WL 3200416, *1 (Del.Super. 2005).
Jury selection commenced. Although it was an anomaly that all jurors were Caucasian, neither counsel expressed any concern about racial bias during the selection of jurors. Defense counsel, the prosecutors and the judge are Caucasian.
The State presented evidence that the defendant, wearing a red shirt, was seen inside LeRoy's After-Hours Club, located at 1220 North Claymont Street, Wilmington, in the early morning hours of July 28, 2006. Two patrons of the club, Terri Ayers-Bonner and Pamela Morehead, observed the defendant coming in and out of the bar. His behavior was agitated. They also observed him speaking with the victim, John Triplett. Triplett was wearing a white baseball cap. After conversing with Ayers-Bonner and Morehead, Triplett left the bar to get something from his truck. Gunshots were heard. The two women ran upstairs. An unknown man ("declarant") dashed into the club and ran up the stairs behind them. When they were all inside the upstairs ladies room, he said, "the guy in the red shirt shot the guy in the white hat".
A motion in limine regarding the admissibility of this statement was decided on July 26, 2007. The declarant's statement was ruled admissible. State v. Burley, 2007 WL 2309747 (Del.Super. 2007).
The bartender, Sonja Harris, testified that after she saw the declarant enter the bar and run upstairs, she went to the front door of the club and looked out. She saw the defendant standing over Triplett. She went back to the bar to call 911 and returned to the door in time to see the defendant walking away. The police reached the scene of the crime at about 1:20 a.m.
Corporal Buhrman of the Wilmington Police Department ("WPD") testified about the blood trail which started from outside the club and led to 1120 East 12th Street. Photographs of the trail were admitted into evidence. At about 2:01 a.m., Officer Eno of the WPD encountered the defendant at 10th and Market Streets in Wilmington. The defendant was wearing khaki shorts and had a red shirt wrapped around his left wrist. He said he had been shot at 10th and Spruce Streets. He was transported to the hospital for care. A later investigation of the area at 10th and Spruce Streets revealed that no shooting occurred at that location that evening.
The trauma nurse from Christiana Hospital who examined the defendant testified that she photographed the defendant's wounds. The photographs were admitted into evidence. She testified that laboratory tests revealed that the defendant was intoxicated. The surgeon who operated on the defendant described the injury as a single gunshot wound to the left wrist with entrance and exit wounds and fractures of the radius and ulna bones. The defendant is right handed.
A witness from the Office of the Medical Examiner testified that blood recovered from the street at the crime scene, from Triplett's shirt, and from Triplett's shorts, matched the defendant's blood.
The defendant testified in his own defense that he and Triplett were outside when three men approached them and asked Triplett for his car keys. Shooting started. The defendant tried to grab the gun of one of the assailants and was shot. Then he played dead. Two assailants ran off; the third assailant entered the club. When he saw that Triplett had been shot, that he was not moving and could not talk, the defendant left the scene. He encountered a police officer at 10th and Market Streets. He denied that he had any dispute with the deceased.
During cross examination, without advance warning to the Court or defense counsel, the prosecutor inquired of the defendant: "I believe you previously said that this is a racist conspiracy?" Defense counsel objected immediately, approached sidebar and requested a mistrial. The Court denied the request and issued the following curative instruction to the jury:
Trial Tr. 43, Aug. 13, 2007.
Ladies and gentlemen, the question that was asked just immediately before you left the courtroom contained the words "racial conspiracy." You are instructed to disregard the question, to disregard that whole concept. You are not permitted to discuss the question or speculate about what it was about or what the answer might have been. You should in all manner strike that question from your memory.
Id. at 52.
During rebuttal summation, the prosecutor argued: "What you hear on the stand today comes after the defendant has had the time and opportunity to concoct a story that fits and dovetails with what the State is going to present." Defense counsel placed his objection on the record, but did not make an application to the Court.
Trial Tr. 69, Aug. 14, 2007.
Id. at 69-70.
Later, the prosecutor argued: "Finally, we talked about another issue of credibility. Who, if anybody, has something at stake in this case? Not Sonia Harris, not Pamela, not Terri, not Detective Hall, not myself, not Deputy Attorney General Hrivnak. There's only one person in this room that has something at stake in this case." Again, defense counsel placed his objection on the record.
Id. at 77.
The jury convicted the defendant of murder first degree and possession of a deadly weapon during the commission of a felony. Based on the jury's verdict, I found him guilty of the severed charge, possession of a deadly weapon by a person prohibited.
The defendant contends that the question about a racial conspiracy and the comments during rebuttal summation constitute prosecutorial misconduct. He argues that the prosecutor's question injected race as an issue in the case when it otherwise was not present. He further argues that the second remark equates to calling the defendant to a "liar" and the third comment was an improper expression of the prosecutor's personal opinion.
Def. Mot. for New Trial ¶ 7, 11, 12, Aug. 24, 2007.
Racial Conspiracy Question
The first issue for consideration is the prosecutor's question to the defendant about a "racial conspiracy." The State relies on Zimmerman v. State for the proposition that the Hughes-Hunter harmless error analysis is applicable. When determining whether an improper remark prejudicially affected the substantial rights of the accused, the Hughes-Hunter test considers four factors: (1) the closeness of the case; (2) the centrality of the issue affected by the alleged error; (3) the steps taken to mitigate the effects of the error; and (4) whether the prosecutor's statements are repetitive errors that require reversal because they cast doubt on the integrity of the judicial process. Zimmerman involved a tape recording of a telephone conversation made by the victim which occurred between the victim and the defendant on the day of the alleged assault. The tape "contained many obscenities uttered by both [the victim and the defendant]." The court excluded only that portion of the taped conversation which contained a racial expletive uttered by the defendant and directed at one of the victim's employees. The parties agreed before trial that when the prosecutor played the tape before the jury, the racial slur would be omitted. Despite the court's later reminder to the State not to play the excluded portion of the tape and the prosecutor's assurance that he would not, the State played the excluded portion of the tape. Zimmerman acknowledged that the playing was inadvertent, but nevertheless moved for a mistrial, which the court denied. The court immediately issued a curative instruction to the jury. Zimmerman agreed that the correct standard of review was not constitutional error, but rather, the Hughes-Hunter harmless error analysis. Zimmerman is readily distinguishable. There was an admitted racial slur by the defendant, which was recorded and provided to the defense in advance of trial. The racial slur was directed at a non-participant in the crime. All parties in Zimmerman agreed that the Hughes-Hunter harmless error analysis controlled that case.Here, the comment by the defendant which was recorded by a court reporter at a public event, the preliminary hearing in the Court of Common Pleas, was focused on the legal process; the comment was not related to the incident in question. It was not probative of the defendant's intent and state of mind at the time of the shooting. The comment was not a racial slur. The defendant's comment — which was not heard personally by the prosecutor or available in transcript form at the time the defendant was cross-examined — reveals the defendant's sense that the proceedings were unfair because of "classism, racism, unethical behavior, ineffective assistance of counsel, potential criminal behavior, and maybe other unconstitutional issues."
Zebroski v. State, 715 A.2d 75, 79 (Del. 1998).
Prelimin. Hr'g Tr. 4, Aug. 18, 2006.
The State attempted to misuse the statement to attack the defendant's trial testimony denying his participation in the crime. The State sought to cast the statement as inconsistent with the explanation of the crime he offered to the jury. The statement is more accurately described as a statement of his abstract belief.
Zebroski, 715 A.2d at 79; Dawson v. Delaware, 503 U.S. 159 (1992).
The prosecutor asked an irrelevant question which lacked a factual basis. A question which improperly injects race as an issue before the jury poses a serious threat to a fair trial. Not only does it undermine the jury's impartiality, but it also disregards the prosecutor's responsibility as a public officer.
Weddington v. State, 545 A.2d 607, 613 (Del. 1988) (citing Miller v. North Carolina, 583 F.2d. 701, 706 (4th Cir. 1978).
Id.
A constitutional error cannot be classified as harmless unless the reviewing court is able to say beyond a reasonable doubt that there was no possibility that the disputed evidence may have contributed to the conviction.
Id.
The State's case was built, in part, on circumstantial evidence. There were no eyewitnesses to the shooting, except an unidentified declarant whose excited utterance was admitted, over defense objection. Both the victim and the defendant were shot. The victim died at the scene. The defendant was seen standing over the victim, and then walking away from the scene. He left a trail of blood from the 1200 block of North Claymont Street toward 10th and Market Street where a police officer, who knew nothing of the victim's death, confronted the bleeding defendant who claimed to have been shot.
The defendant testified in his own defense that he was outside with the victim when three men came upon them, attempted to rob them, and shot both of them. He said that one of the three was the declarant who then ran into the after-hours club.
The jury was asked to choose between two conflicting versions of the story, with the only eyewitness corroboration coming from the unavailable declarant. The impeachment of Burley's trail testimony was critical to the State's prosecution.
Prior to the trial in this case, counsel and the court discuss whether there needed to be a voir dire question regarding race. I was informed that since the victim and the defendant are both African-American, the question was not necessary. There was no element of racial hatred involved in this killing. Nobody could have foreseen that all of the jurors drawn would be Caucasian. It was an unusual circumstance which generated comment by the Court at a break, although there was no contention that the jury selection was the product of any impropriety.
Dawson v. Delaware, 503 U.S. at 166.
The Delaware Supreme Court has clearly stated the applicable standard: "We . . . hold, as a matter of Delaware law, that the improper injection of race as an issue into a criminal proceeding violates the right of due process which is guaranteed to all defendants in a criminal case under the Constitution of this State." Any reference to race by a prosecutor must be justified by a compelling state interest.
Weddington, 545 A.2d at 615.
Weddington, 545 A.2d at 614 (citing McFarland v. Smith, 611 F.2d 414, 416-17 (2d Cir. 1979)).
Here, there was no compelling state interest, indeed, no relevant interest at all, in referring — inaccurately — to the defendant's prior comment. He said: "I don't believe I can get a fair preliminary hearing." His mention of racism was in the context of explaining that perception; it had nothing to do with the night of the crime.
This case falls into the category of constitutional violations to which the harmless error rule does not apply. Consequently, the State's reliance on the Hughes-Hunter harmless error analysis is misplaced.
Zimmerman, 628 A.2d at 65.
The defendant's constitutional rights were violated by the improper injection of race into this proceeding. I do not reach the other two statements which the defense argues were prosecutorial misconduct.
Conclusion
The defendant's motion for a new trial is GRANTED.