Opinion
ID No. 0111003002
Submitted: July 23, 2003
Decided: August 20, 2003
Upon Defendant's Motion for New Trial
DENIED
Robert J. O'Neill, Esq., and Marie O'Connor Graham, Esq., Deputy Attorneys General, for the State of Delaware.
Sandra W. Dean, Esq., and Sheryl Rush-Milstead, Esq., Dover, Delaware, for the defendant.
ORDER
This 20th day of August, 2003, it appears that:
(1) Defendant Gary Ploof has moved for a new trial on the grounds of alleged juror misconduct due to questions asked of a juror by co-workers after the guilt phase but before the penalty phase, the subsequent replacement of that same juror during the penalty phase with an alternate, the length of deliberations during the guilt phase, and an alleged sneer of a juror toward the Defendant made after the jury was excused at the conclusion of the penalty phase. Defendant further argues that a new trial would be appropriate due to public statements made by the prosecution and published in the newspaper on the morning of the start of the penalty hearing as well as an unexpected document allegedly introduced into evidence. For the reasons which follow, I find no basis to grant a new trial.
(2) After completion of the guilt phase of the trial, but prior to the start of the penalty phase, the Court received a letter by fax from a co-worker of Juror Number Four. Juror Number Four had stopped by her place of work and was approached by others in the office with questions about the trial.
The content of the letter is attached as Exhibit A. The name of the juror has been redacted throughout the letter and "Juror Number Four" has been substituted in place of it.
After reviewing the letter with counsel the Court conducted an in camera interview of the Juror. This Court found that the events after the guilty verdict leading to Defendant's request to excuse Juror Number Four did not present any basis to grant a mistrial and no basis to grant a new trial. Defendant has renewed his request after the Court substituted an alternative for Juror Number Four in the penalty phase.
The colloquy is attached as Exhibit B.
Transcript of Penalty Hearing, Volume A at *24.
(3) Defendant has waived any objection to the substitution because his counsel requested it. Even so, the Court will still address his arguments. Defendant argues that Superior Court Criminal Rule 24(c) would disqualify the alternate from having been substituted for the regular juror for the penalty phase. That rule states that "[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict." However, 11 Del. C. § 4209 applies to the procedure for determining punishment for conviction of first-degree murder. 11 Del. C. § 4209(b)(1) states in pertinent part:
Penalty Hearing Transcript, Volume A at *25.
"Alternate jurors shall not be excused from the case prior to submission of the issue of guilt to the trial jury and shall remain separately sequestered until a verdict on guilt is entered. If the verdict of the trial jury is guilty of first-degree murder said alternates shall sit as alternate jurors on the issue of punishment. If, for any reason satisfactory to the Court, any member of the trial jury is excused from participation in the hearing on punishment, the trial judge shall replace such juror or jurors with alternate juror or jurors."
Therefore, it was appropriate for the Court to exercise its discretion to excuse Juror Number Four and replace her with an alternate for the penalty phase of the trial.
This was done out of an abundance of caution and on the specific application of the defendant.
(4) Defendant next argues that the length of the deliberations, approximately two hours, shows that the jury did not follow the Court's instruction to consider all of the evidence in deliberating the Defendant's guilt or innocence. He bases his argument on the fact that over 100 exhibits were introduced during 8-1/2 days of trial. Defendant's argument ignores the reality of the trial itself where exhibits were displayed and re-displayed for the jury to absorb. I am satisfied that the jury followed the Court's directions and considered all of the evidence in determining Defendant's guilt.
(5) Defendant next asserts that "[a]t the conclusion of the Penalty Hearing, after the Judge left the bench and the Jurors were leaving, Juror Number Five directly and openly smirked and comtempously [sic] sneered at the Defendant, demonstrating obvious animosity." Defendant argues that this alleged smirk and sneer violated the Court's instruction to the jury that their verdict not be based on sympathy, passion, prejudice, or any motive whatever except a fair and impartial consideration of the evidence. This allegation involving a facial expression by a juror does not show any extraneous influence on the juror during deliberations and it is not a basis for a new trial.
Defendant's Motion for New Trial at *3.
(6) Defendant argues that a mistrial should have been granted on the basis of public statements by the prosecution, and published in the newspaper on the morning of the start of the penalty phase of the trial, referring to the Defendant as a "cold blooded killer." Defendant asserts that this statement violated Professional Conduct Rule 3.6 and that, therefore, a new trial is warranted.
Rule 3.6(a) prohibits a lawyer participating in a trial from making public statements that the lawyer knows or should know will likely prejudice the proceeding. Rule 3.6(b) permits a lawyer to state information contained in a public record.
There are no allegations made by Defendant that the proceedings were prejudiced by such statements. In addition, the Court instructed all jurors not to watch, listen to, or read any media accounts, whether they be on television, radio, or in newspapers. At the beginning of each day of the trial, the Court asked each juror whether they followed such instructions and each juror indicated on each day that they had followed the Court's instructions. Therefore, there is no showing, and no factual assertion to support, that the prosecution knew or reasonably should have known that the statements would have a substantial likelihood of materially prejudicing the proceedings nor that the proceedings were likely to be prejudiced. Furthermore, the statements referring to Defendant as a "cold blooded killer" mirrored language used by the prosecution in its closing argument and did not appear in the newspaper until after the Defendant was found guilty of first-degree murder. Therefore, the statement made that was published in the newspaper describes information that the prosecution had put into the public record of the trial.
(7) Defendant asserts that the prosecution unexpectedly introduced a document purporting to show that a payroll deduction for life insurance was rejected due to "non-pay" status of the Defendant and that such document was never given to Defendant's counsel, violating Superior Court Criminal Rule 16(a)(c). However, in reviewing the record, there is no indication that any such document was introduced into evidence.
Transcript of Penalty Hearing Testimony, pp. 76-80; State's Identifications/Exhibits record from Superior Court of the State of Delaware.
A witness identified as Sgt. Andrew Rapp testified that the Defendant's payroll deduction was rejected due to his "non-pay" status. Defendant's counsel made no objection to Sgt. Rapp's testimony at that time, however, and failure to raise an objection at trial constitutes a waiver of that objection.
NOW, THEREFORE, IT ORDERED that Defendant's Motion for New Trial is DENIED.
Exhibit A June 17, 2003
Ms. Caroline Harris Jury Services Superior Court of Kent County The Green Dover, DelawareDear Ms. Harris:
At your request for a faxed written statement, I provide the following:
I work in the Finance Department of Delaware Transit Corporation ("Dart First State") at 900 Public Safety Boulevard in Dover. My co-worker, (Juror Number Four) came to the payroll area of the Finance Department shortly after 10:30 a.m. We are in an open cubicle environment. Three women working in that area engaged (Juror Number Four) in conversation about her jury service. One asked did she at least get "something interesting," and (Juror Number Four) replied, "Life or death." She then said she couldn't talk about it, but that they could probably figure out what the case was. One woman asked, "Did they ask you about your beliefs about that before you started?" and (Juror Number Four) said yes. The same woman then asked, "Did they get a fair trial?" and (Juror Number Four) said yes. And then, "Did they have a public defender?" (Juror Number Four) "Yes." Woman: "Oh, because sometimes when they're poor they don't get a fair trial." Another woman asked her if she was done, and (Juror Number Four) said no, but that she was hoping that at least once she was done, she wouldn't be called again for 2 years. She left the office about 10:45 a.m.
I called you at 11 a.m. from a conference room. As I said, I don't know if the above represents misconduct or even has an impact: but my conscience could not permit me not to make the Court aware of it if someone's life is involved and before a decision about that is made.
To be clear, I was not aware of any capital cases being heard or any of the details, and truthfully, I could not surmise details from (Juror Number Four's) conversation. Following my phone call with you, at 11:15 a.m. I read the News Journal's account of the verdict in a capital case yesterday. I want the Court to understand that there is no judgment on my part either of (Juror Number Four's) conduct or of the details of a case reported yesterday. I made a call to you based on my discomfort with the conversation, hearing that it was a capital case, and my conscience. Earlier correspondence from me to the Prothonotary regarding jury service should support that.
Sincerely,
Exhibit B
JUROR NUMBER 4: Sure.
THE COURT: Good morning.
JUROR NUMBER 4: Good morning.
THE COURT: I wanted to bring to your attention some information that I've received and give you the opportunity to comment on it. This relates to — do you work at the Delaware Transit Corporation, Dart First State?
JUROR NUMBER 4: Yes, sir.
THE COURT: I have information that three women working in that area engaged you in conversation about your jury service yesterday. One asked: Did she at least get, quote, something interesting unquote; and it's stated that you replied, life or death, unquote. She then stated she couldn't talk about it, that they could probably figure out what the case was.
One woman asked, quote, did they ask you about your beliefs about that before you started, unquote. And you said yes. The same woman then asked, quote, did they get a fair trial and you said yes. And then quote, did they have a public defender, and then you said yes. And then the woman said, oh, because sometimes when they're poor they don't get a fair trial, unquote.
Another woman asked if you were done, and you said no, but you were hoping at least once you were done you wouldn't be called again for two years; and that you left the office then about 10:45 a.m.
Is that accurate?
JUROR NUMBER 4: That's not all accurate, no.
THE COURT: Okay. Tell me what happened.
JUROR NUMBER 4: I went into work, and I just said to everybody in there — you should never go to work when you are on a case like this, until it's done, because everybody knows you're on jury duty. And I sell Avon where I'm at. So I went over to the girls that had left me their Avon money, and they did say, "He's guilty." And I said, "I can't talk about it. The verdict's in, but we have to go back.
They said, "What do you have to go back for?" I said, "Well, I don't know what it's called but we've got to go back." And I said "Yes, I'd say, this has definitely been an experience. A very emotional experience. And I do hope that I don't get called again for two years." I mean, I said that.
But when they said the part about double in life or death, whatever, I don't remember that. Maybe they did. But, you know, but I told them, I said look, this is hard to come in here and work, and I didn't want to be questioned. And I kept telling everybody, you know, just leave me alone. But they did. There was two or three of them and one was saying she had been on a case, and I said, you know, "Just don't talk about it, please don't talk about it,"
And what else was in there about what I said?
THE COURT: Did they ask you about your beliefs about that before you started —
JUROR NUMBER 4; Now, was that about the life and death, is that what that was about?
THE COURT: Yes.
JUROR NUMBER 4: Like I said, I don't remember that.
THE COURT: The next was: Did they get a fair trial, was quoted as being asked.
JUROR NUMBER 4: I don't remember that. I do remember something about prosecutor, was it a prosecutor. I said, "Well, I don't know if it was a prosecutor, whatever." I said, "He had a lawyer. I don't know whether it was a prosecutor, whatever."
THE COURT: This comment about sometimes whether they're poor they don't get a fair trial —
JUROR NUMBER 4: Oh, I didn't say that. I did not say that.
THE COURT: No, supposedly someone else said that.
JUROR NUMBER 4: I don't remember anything about anyone saying anything about anyone being poor.
THE COURT: And do you remember anything about the description of the lawyers in the case?
JUROR NUMBER 4; No. Like I said, I won't say they didn't say something about a lawyer, but they' said something — I know what it was, public defender, did they have a public defender.
JUROR NUMBER 4: I said, "I don't know. I have no clue. He had a lawyer."
THE COURT: All right. Please step out to the corridor.
* * * * *
(Juror Number 4 exited the conference room.)
* * * * *
THE COURT: All right. Your position in view of the inquiry?
MS. DEAN: I don't have anything to add, except that I believe that what she said bears out the facts that are in the letter.
THE COURT: All of them?
MS. DEAN: Except today she's not so sure that he had a public defender. Except for that, I think she related it pretty much the same, although not exactly verbatim, except for that part.
THE COURT: All right. Anything else?
MR. O'NEILL: The State's position is that the juror was approached by people; that this
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