Opinion
ID No. 9608010189.
Date Submitted: June 5, 2000.
Date Decided: October 18, 2000.
ORDER DENYING STATE'S MOTION FOR REARGUMENT
This 18th day of October, 2000, the Court having found that:
(1) The State of Delaware, by and through Deputies Attorney General Peggy Hageman and Cynthia Kelsey, moves for reargument of this Court's Opinion and Order of November 5, 1998 granting the defendant's motion for a new trial.
(2) The defendant, James Dorsey ("Dorsey"), was found guilty of Murder in the First Degree, Possession of a Firearm During the Commission of a Felony, and Possession of a Deadly Weapon by a Person Prohibited at a jury trial which concluded on May 28, 1998. In the penalty phase of that trial the jury voted ten to two to recommend imposition of the death penalty. Dorsey moved for a judgment of acquittal or in the alternative for a mistrial and in the interest of justice, the Court granted Dorsey a new trial on November 5, 1998.
(3) In determining that Dorsey did not receive a fair trial, this Court concluded that: (1) the Medical Examiner, an expert witness for the State, directly or indirectly expressed a personal opinion about the defendant's veracity; (2) there was not a satisfactory or complete ruling on the record as to why evidence of the defendant's prior bad acts (involving bootlegging) was admissible nor was there a ruling as to why the prejudice did not outweigh the probative value; and (3) the prosecutors' closing remarks were improper and no action was taken by the Court to control the conduct of the attorneys.
(4) The State predicates its motion for reargument on several grounds. The first is that the Court improperly applied Holtzman v. State to conclude that the testimony of the Medical Examiner was an impermissible assessment of the defendant's credibility. The State asserts that the Court incorrectly concluded that the Medical Examiner's testimony was based on credibility because the Medical Examiner must consider the totality of the circumstances to determine whether a death is homicide, and here, the Medical Examiner's focus was not on whether she believed Dorsey's story, but rather whether Dorsey's version of the events was physically possible. Additionally, the State argues that the defense's objection to the insufficient bases of the Medical Examiner's opinion was untimely and failed to take into account that the defense elicited the comments on the defendant's credibility.
Del. Supr., No. 221, 1997, Holland, J. (July 27, 1998).
With regard to the ruling on the admissibility of the prior bad acts, the State asserts that an extensive review of the trial transcripts show that the Court performed a balancing test required by Getz and that all the six prongs of the test were satisfied. The State argues that even if the Court decided that it had not previously applied the six prong test, a review of the transcript and application of the test would show that the evidence was admissible.
Getz v. State, Del. Supr., 538 A.2d 726, 734 (1986).
Third, regarding the prosecutorial misconduct, the State argues that the Court set forth, out of context, the statements that the prosecutors made that were of an improper form. The State concedes that while prosecutors should refrain from using the word "I," none of the statements made in this case were bold assertions of the prosecutors personal beliefs and therefore the statements were not improper. Finally, the State argues that the statements of the prosecutors did not "prejudicially affect the substantial rights of the accused." The prosecutors "I" remarks do not combine with any other errors and therefore cannot amount to unfair prejudice.
State's Reply Brief at 6, citing Brokenbrough v. State, Del. Supr., 522 A.2d 851, 856 (1987).
(5) In asserting that the Court improperly applied Holtzman, the State attempts to distinguish that case from the facts in Dorsey. The State argues that: 1) the witness in Holtzman was a police officer acting as a lay witness while the Medical Examiner was testifying as an expert witness; 2) the police officer's testimony was in the form of a recorded statement while the Medical Examiner took the stand and was subject to cross examination; and 3) the police officer's improper statement was a blatant assessment of credibility while the Medical Examiner was simply basing her opinion on the inconsistencies.
The Court finds the State's distinctions to be unpersuasive. The State's attempts at contrasting the two cases fails on the basic premise that the Supreme Court in Holtzman makes no distinction between witnesses who take the stand and those with taped interviews played at trial. In addition, the Court clearly applies the rule to expert witnesses as the Court says it is "plain and reversible error to permit an expert witness for the State to directly or indirectly express a personal opinion about a particular witness' veracity."
Holtzman, 718 A.2d at 528, citing Wheat v. State, Del. Supr., 527 A.2d 269, 275 (1987); Powell v. State, Del. Supr., 527 A.2d 276, 279 (1987) (emphasis added).
(6) The State argues that Dr. Penman, the Medical Examiner, considered the trajectory of the bullet, the close contact wound and the absence of the gun in determining that the victim's death was a homicide. However, the State contends that because these factors were not sufficient to determine homicide or suicide, Dr. Perlman also considered that the defendant called in an assault when there was no evidence of a struggle, that the defendant claimed to have found the gun on the opposite side of the body from the wound, and that the defendant claimed to have climbed over the dresser when it was clear that the dresser had dust so thick it had not been disturbed in years.
The State argues that the Medical Examiner's focus was not on whether she believed Dorsey's story, but on whether his version of the events was physically possible in light of what she observed in her medical expertise. The State argues that the Court must realize that a Medical Examiner must consider the totality of the circumstances. The Medical Examiner explained that learning that the gun was allegedly found on the left side of the body was medical evidence. Since the defendant disturbed the scene by taking the gun and made statements regarding the location of the gun prior to removal, the defendant's statements become intertwined with an evaluation of the physical evidence and crime scene. It is the State's contention that the Medical Examiner did not give her personal opinion about the veracity of the defendant's story until asked by the defense, and merely contrasted the statements with the physical evidence.
Finally, the State argues that the Medical Examiner's testimony does not unfairly prejudice the defendant but its exclusion would unduly prejudice the State because if the testimony is excluded, the jury loses the benefit of hearing the opinion of the forensic pathologist who was at the scene and who conducted the autopsy.
The Court, however, remains unpersuaded. Regardless of whether the Medical Examiner was considering the totality of the circumstances in ruling the death a homicide, the Medical Examiner still explicitly improperly expressed her personal opinion regarding Dorsey's veracity in front of the jury.
(7) The State argues that while the Court never held a Getz hearing, the Court ruled repeatedly throughout the trial that the bootlegging evidence was properly admitted and a proper Getz analysis can be extracted from the transcripts. It is clear to this Court, in reading Holtzman and others, that this piecemeal compilation of a Getz analysis is not enough. The Supreme Court has stated that "[i]n the absence of a Getz analysis, followed by a specific ruling on admissibility and a limiting instruction, [prior bad acts are] inadmissible and unfairly prejudicial character evidence."
Holtzman at 7, citing Getz at 734; Farmer v. State, 698 A.2d at 949; Allen v. State, Del. Supr., 644 A.2d 982, 987 (1994).
(8) The State argues that while the prosecutors should not have used the first person or made "I" remarks during closing arguments, none of the statements in question were bold assertions of the prosecutors personal beliefs.
The Court concludes that the statements made by the prosecutors, whether it be to the form of the question or not, were improper. As set forth previously, "it is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of the evidence or the guilt of the defendant," and the prosecution repeatedly expressed their personal beliefs in Dorsey's credibility as set forth in the Order granting Dorsey a new trial.
State v. Dorsey, Del. Super., I.D. No. 9608010189, Gebelein, J., (Nov. 5, 1998) at 6, quoting ABA Standards for Criminal Justice 3-5.8 (2d ed. 1980).
Finally, the State contends that these statements did not prejudicially affect the substantial rights of the accused. The Court can not agree. As stated in the November 5, 1998 Order, Defendant's credibility or lack thereof was a significant factor in the jury's determination of his guilt or innocence. "All defendants have a right to a fair trial. A fair trial requires the defendant's guilt or innocence to be determined based exclusively on the properly admissible evidence that is presented to the jury in the courtroom." "Against the backdrop and at risk of distortion, the challenged prosecutorial comments were directed again and again at the veracity of the defense witnesses." "The numerous improper personal remarks in the prosecution's closing arguments substantially undermined [Dorsey]'s right to a fair trial."
See Brokenbrough v. State, Del. Supr., 522 A.2d 851, 861 (1987).
Hughes v. State, Del. Supr., 437 A.2d 559, 572 (1981).
Holtzman, No. 221, 1997 at 23.
Based upon the foregoing, the State's motion for reargument of this Court's Opinion and Order granting the defendant's motion for new trial is DENIED.
IT IS SO ORDERED.
The Honorable Richard S. Gebelein
Orig: Prothonotary cc: Cynthia Kelsey, Esquire Peggy Hageman, Esquire Stephen Potter, Esquire Adam Balick, Esquire