Opinion
ID NO. 0009001194
Submitted: December 18, 2001
Decided: December 20, 2001
ORDER
Upon Defendant's Motion for a New Trial.
GRANTED.
Defendant, Jerome Robinson, has filed a post-trial motion for a new trial. On November 20, 2001, Mr. Robinson was convicted of two counts of Robbery First Degree after a one day trial. During the State's cross-examination of the defendant, the State elicited testimony establishing that the defendant had been convicted of Robbery First Degree in 1996. Defense counsel did not object to this evidence. The day after the trial concluded, the Court, sua sponte, noted that it had not conducted a balancing test under D.R.E. 609(a)(1), informed counsel that it would have excluded the evidence of the prior Robbery First Degree conviction if the balancing test had been undertaken at the time, and questioned whether it had erred by failing to do so. The Court informed counsel it would entertain a post-trial motion on this issue. Defense counsel then raised another trial issue concerning an error in the set of written instructions given to the jury. The Court heard preliminary argument on this issue as well. Following this office conference, defendant submitted his post-trial motion and the State filed its response.
After reviewing the submissions of counsel and the case law on the D.R.E. Rule 609(a)(1) issue, the Court concludes that it did not err when it failed to conduct a balancing test on the prior robbery conviction. Delaware Rule of Evidence 609(a) states:
General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) constituted a felony under the law under which the witness was convicted, and the Court determines that the probative value of admitting this evidence outweighs its prejudicial effect or (2) involves dishonesty or false statement, regardless of the punishment.
In Paskins v. State, the Delaware Supreme Court held that robbery is a crime of dishonesty within the meaning of D.R.E. 609(a)(2). As the Court in Paskins noted, because the crime of robbery involves "dishonesty," the fact that a defendant committed a prior robbery is admissible under D.R.E. 609(a)(2), and the Court is not permitted to weigh the probative value verses the prejudicial effect of that prior conviction under D.R.E. 609(a)(1). The defendant is not entitled to a new trial on the ground that Superior Court erred in failing to conduct a balancing test with respect to the prior robbery conviction. In fact, admission of the prior robbery conviction for impeachment purposes was mandatory. Although the prior robbery conviction was properly admitted, the Court finds that the State made an inappropriate comment during closing argument with respect to that prior conviction. In discussing the defendant's credibility, the prosecutor told the jury that the "only thing" he was "was allowed to ask" the defendant about were "crimes that involved dishonesty."
Del. Supr., No. 294, 1994, Veasey, C.J. (March 15, 1995) (ORDER)
See Gregory v. State, Del. Supr. 616 A.2d 1198, 1203 (1992); Paskins v. State, Del. Supr., No. 294, 1994, Veasey, C.J. (March 15, 1995) (ORDER); Tucker v. State, Del. Supr., No. 89, 1996, Veasey, C.J. (September 16, 1996) (ORDER) ("Since prior convictions for robbery . . . clearly have been determined by this Court to be crimes involving dishonest conduct, the convictions were admissible. . . . The Superior Court did not err in not undertaking the D.R.E. 609(a)(1) balancing test.")
See Webb v. State, Del. Supr. 663 A.2d 452, 461(1995).
The prosecutor stated:
Credibility. Credibility obviously is an issue because you have two different stories. And Judge Jurden will tell you that it's your duty and job to try to reconcile both of those stories; but that if you can not reconcile the two stories, it is your absolute right to disregard any testimony that you think is not credible. And some of the things that you need to consider when determining credibility is what does a person have to lose. What does Jerome Robinson have to lose if he gets convicted here today?
Another thing that you can take into consideration is his prior record. And I asked him had he ever been convicted of any crimes involving dishonesty. And he testified that he had. In fact, he — in 1999 he was convicted of — that's the only thing I'm allowed to ask, only crimes that involve dishonesty. He testified that he's been convicted of criminal impersonation in 1999 and robbery in the first degree in 1996. That's the only thing you're allowed to use those convictions for is to determine his credibility.
Transcript of State's Closing Argument, November 20, 2001. (Emphasis added).
This argument improperly implied, if not outright suggested, to the jury that (1) the defendant had been convicted of other crimes in the past, and (2) the State would have liked to question the defendant about those other crimes but was prohibited from doing so because those crimes did not involve dishonesty. Defense counsel did not object to this argument. Upon receipt of the transcript, and after reviewing those comments in the context of the prosecutor's entire closing argument, the Court finds that those comments were inappropriate under D.R.E. 609 and highly prejudicial to the defendant. D.R.E. 609 clearly restricts the types of prior convictions that are admissible and for what purpose. The State crossed the line by suggesting to the jury that there were other crimes committed by this defendant and that the prosecution was not permitted to question the defendant about them. The prosecutor's comments could have (1) prompted the jury to speculate about what other crimes the defendant may have committed, (2) prompted the jury to conclude that the defendant was a bad person, or (3) prompted the jury to conclude the defendant probably committed the crimes charged in the instant case because he had committed crimes in the past. Because the Court believes the prosecutor's statements were violative of the Delaware Rules of Evidence, highly prejudicial to the defendant, and therefore compromised the defendant's right to a fair trial, the Court grants a new trial on this ground.
There is yet another reason that the Court believes a new trial in this matter is warranted. It is the error in the set of written jury instructions raised by the defendant shortly after the verdict.
During the Prayer Conference, the State requested that the jury be instructed on Robbery Second Degree as a lesser included offense of Robbery First Degree. The defense objected to the State's request, relying on Capano v. State, claiming there was no rational basis to charge on Robbery Second Degree when the element of physical injury was undisputed. The Court held that it would not instruct on Robbery Second Degree if the defendant stipulated that the victims sustained "physical injury." The defendant agreed and the language in bold below was inserted in the Robbery First Degree jury charge:
Capano v. State, Del. Supr., Nos. 110 and 149, 1999, Veasey, C.J. (August 10, 2001).
(4) The defendant caused physical injury to Craig Poehner and Bernadette McNulty, who were not participants in the crime. The defendant agrees that Craig Poehner and Bernadette McNulty sustained physical injuries defined by the statute and therefore you should accept this fact as having been proved.
All the above occurred before the defendant took the stand to testify. During the defendant's testimony, the Court called a sidebar and advised counsel that, based upon the defendant's testimony, the Court would instruct the jury on Robbery Second Degree. The Court made this ruling because defendant's testimony called into question whether Mr. Poehner and Ms. McNulty were actually injured and whether the defendant's conduct could have caused physical injury to them. Based on defendant's testimony, the Court concluded there was a rational basis to give a charge on the lesser included offense of Robbery Second Degree. Nothing was said during that sidebar about the stipulation concerning physical injury. The Court assumed, as apparently did defense counsel, that the stipulation was no longer valid and it would not be read to the jury. Neither the State nor defense counsel referred to the stipulation before or during their closing arguments. Defense counsel did not address the stipulation in his closing argument because he believed the stipulation was no longer in effect once the Court ruled that the Robbery Second Degree instruction would be given.
The Court deliberately did not read the stipulation to the jury during the reading of the jury instructions.
After the jury retired to deliberate the verdict, they were given three copies of written jury instructions. Unfortunately, through administrative error, the written instructions contained the stipulation quoted above. Counsel and the Court learned of the discrepancy after the verdict was returned. The Court agrees with defendant that the discrepancy between the verbal and written instructions is material because it touched on the very element that distinguishes Robbery First Degree from Robbery Second Degree: physical injury. Although the stipulation was limited to an agreement that the victims "sustained" physical injuries, it stated that the jury should "accept this fact as having been proved." Upon reflection, the Court is concerned that the jury may have understood the stipulation to mean the "fact" referred to was the causation element of the physical injury rather than what was intended — a stipulation only that the victims "sustained" physical injuries. The Court is concerned not only that the jury read the stipulation and interpreted it to mean that the defendant conceded that his conduct caused the injuries to Mr. Poehner and Ms. McNulty, but that the jury may have been confused or misled by the written stipulation because (1) the stipulation was contrary to the defendant's testimony, (2) the Court did not read the stipulation to the jury, and (3) neither attorney addressed the stipulation during closing arguments. The Court is concerned that, under these circumstances, the inclusion of the stipulation in the set of written instructions provided to the jury undermined the jury's ability to intelligently perform its duty in returning a verdict. Consequently, a new trial is warranted.
See Sirmans v. Penn, Del. Supr., 588 A.2d 1103 (1991).
For the reasons stated above, the defendant's Motion for a New Trial is GRANTED.
IT IS SO ORDERED.