Opinion
Nos. 99-03-0615, et seq.
Date Submitted: February 22, 2000.
Date Decided: March 20, 2000.
Richard W. Hubbard, Esquire, Patricia A. Dailey, Esquire, Carvel State Office Bldg., 820 North French Street, Wilmington, DE 19801, Attorneys for the State of Delaware.
Victor F. Battaglia, Esquire, Robert D Goldberg, Esquire, Biggs and Battaglia, P.O. Box 1489, Wilmington, DE 19899, Attorneys for Joseph Shaia, Kathleen Shaia, James Van Landingham, and Wealthy Van Landlingham.
Theresa M. Hayes, Esquire, Law Office of Edward C. Gill, P.A., P.O. Box 824, Georgetown, DE 19947, Attorney for Michael L. Booth. Ronald D. Phillips, Jr., Esquire, Hudson, Jones, Jaywork Fisher, 100 North Bedford Street, P.O. Box 359, Georgetown, DE 19947, Attorney for Shawn P. Winston.
MOTION FOR REARGUMENT-DENIEDPresently before this Court is the State of Delaware's ("State") Motion for Reargument asking the Court to revisit its decision of February 10, 2000, granting the Defendants' Motion for a New Trial. The State specifically asks that the Court recall the jurors for additional questioning concerning their exposure to "extra-record" information during their deliberations. This "extra-record" information is information the Court determined to be inherently prejudicial. For the reasons stated below, the State's Motion for Reargument is denied.
STATEMENT OF FACTS
For the sake of clarity, the Statement of Facts from the Court's original decision on the Motion for a New Trial is incorporated.
During the summers of 1997 and 1998, Defendants Joseph Shaia and his wife, Kathleen, operated an auction house in Fenwick Island, Delaware. The auction advertised itself as an "estate auction" that dealt in jewelry, oriental rugs, bronzes, art, and antiques. During the summer season, auctions were held on several nights each week. The other Defendants, James Van Landingham, Wealthy Van Landingham, Michael Booth, and Shawn P. Winston, were employees of the auction house who assisted the Shaias with the business in several different capacities.
In the summer of 1997, a disgruntled customer of the Auction alerted the Fenwick Island Police ("Police") that the Auction was selling cheap imitation Remington bronzes as the "real thing" or of a better quality than they were. The Police investigated the Auction through the end of the season (October) by placing an undercover officer in the Auction as an employee. In the following season, 1998, the investigation into the Auction's activities was renewed with a joint effort by the Police and the Attorney General's Office, Fraud Division. Again, the Police placed an undercover officer as an employee of the Auction and an investigator from the Attorney General's office secretly videotaped the auction on several occasions in June, 1998.
In July, 1998, the Police and the Attorney General's office concluded the investigation and obtained and executed a search warrant to search for and seize evidence of wrongdoing by the Auction. As a result of the investigation into the Auction's activities the Defendants were arrested and charged with various counts of criminal racketeering, conspiracy to commit criminal racketeering, theft (felony and misdemeanor), attempted theft, conspiracy second degree, forgery in the third degree, and deceptive business practices.
The Defendants were brought to trial on November 8, 1999. The trial lasted a number of weeks. The matter was given to the jury for deliberations on the afternoon of December 9, 1999. The jury did not reach a verdict that day and resumed deliberations on December 10, 1999. The jury was dismissed for the weekend and returned on Monday, December 13, 1999, to resume deliberations. As the Court staff was preparing for their arrival, a staff member noticed that the court clerk's trial notes were in the top of the box of exhibits to go back to the jury. At this point, it was unclear whether the notes had gone back with the exhibits while the jury was deliberating on Thursday and Friday of the preceding week and whether the jurors had seen the trial notes at all.
Included in this package I am labeling the "trial notes" was a master juror list, a list of witnesses and when they appeared, a list of the exhibits, and a list of the possible verdicts. Most troublesome, however, was the inclusion of the clerk's notes, which provide a sort of diary or journal of the trial. Nearly every event of any import in this trial was documented in these notes. Entries in the clerk's notes include references to:
1. The times at which the Court convened and recessed each day;
2. The times at which witnesses began and concluded their testimony;
3. Notations concerning objections and side-bar conferences; and
4. Notes concerning motions that were made and the rulings on those motions.
The Court immediately notified the parties that the jury may have been exposed to the Court's notes. As these notes would constitute "extra-record" information, the Court decided initially to voir dire the jury as a body to discover the nature of the jury's exposure to the notes. The Court introduced the voir dire with the following:
I want to ask. Something has come up. I want to have a conversation with the jury as a group about it. And as you have been instructed, you are to base the decision based only upon the evidence and the instructions of law. And you all have a copy of the instructions as a whole which guides you in your deliberations.
This morning when we were getting ready for you to come back, getting set for you to come back, there was a box. That box had items of evidence in it. And this may be nothing, but it may be something, that's why we are talking about it. On top of the box of evidence, the evidence box, there was the possible verdicts indicated and these verdicts are the same as that which you were instructed to by me about what the possible verdicts were. Right next to that. Then there were these yellow sheets of paper and these yellow sheets of paper, which I have, that's the Court record that our clerks, who come in here every day, they say what time we started, what time we stopped. It is records, information about the trial. And there are various things on this. It is a little bit like a diary.
. . .
. . . I don't know if you have seen this package of materials. So my question to you is: Has any juror been exposed to these trial notes that I'm putting up in the air, the trial notes? You can't read them, but you can see the yellow sheets.
In response to the question, an unidentified juror indicated that he or she had seen the trial notes in the jury room during deliberations. The Court then followed up with a series of questions designed to assure that the jury would base its verdict solely on the evidence admitted at trial as applied to the instructions of law the members were given. In each case, the jurors affirmed they would do so. The Court then asked the following question: "Is my understanding correct that while these trial notes may have been in that box that the jury did not review these trial notes; is my understanding accurate?" An unidentified juror responded: "I read something. I glanced. I don't know what it is, but I read — I glanced at the list of jurors' names and the list of exhibits." The Court then asked: "Of the people on the jury, raise your hand that had actually seen these and actually had put their hands on?" Four jurors raised their hands. The jury was then excused to renew their deliberations.
The Court asked as "follow-up":
"If the jury has seen these trial notes, does each juror promise to put these notes out of his
or her mind?"
"Does each juror promise that he or she will not be influenced in any way by the existence of these notes?"
"Does each juror promise to base his or her verdict solely on the evidence and the instructions of law that have been given to you?"
"Does each juror understand that these trial notes were prepared by the clerk and are not evidence and may be given absolutely no consideration; does each juror understand that?"
"Should any information have been exposed to you by these trial notes, does each juror understand that such information must be disregarded entirely and not play any part in your role as a jury here?"
The Court, still concerned about the possible effect these trial notes may have had on the jury's deliberative process, decided to voir dire the jurors individually the next day. Each juror was asked individually if and when they were exposed to the trial notes and the nature of any exposure.
The following is a summary of each juror's response:
Juror # 1: The notes were in the jury room on December 10, 1999, but Juror did not look at them. Juror recalls the jury using them to find an exhibit.
Juror #2: Juror saw the trial notes and "leafed through" them. Juror recalls using them to locate items of evidence.
Juror #3: Juror knew the notes were in the jury room but did not look at them.
Juror #4: Juror saw the notes and noted that they were a list of possible verdicts and list of exhibits. Juror thought they were for the foreman.
Juror #5: Juror did not see notes and did not recall them being in the jury room.
Juror #6: Juror did not see the jury notes.
Juror #7: Juror did not see or review the notes.
Juror #8: Juror looked at the notes to see if her name was spelled correctly.
Juror #9: Juror did not recall seeing the notes at all in the jury room.
Juror #10: Juror recalled the notes in the jury room but did not see them.
Juror #11: Juror recalled the notes in the jury room but did not see them.
Juror #12: Juror glanced at parts of the packet and noted "the times everybody was on testimony."
Some jurors indicated that they had not seen the notes at all while others indicted varying degrees of perusal. Some had looked only at the list of exhibits while another looked at the jury list to verify the spelling of his or her name. Others indicated that they had "flipped through" the notes. Perhaps the most notable result of this voir dire is that upon individual questioning, eight jurors indicated that they had at least seen the notes where only four jurors indicated the same the day before.
The jury was sent back to resume deliberations and the Defendants' motion for a mistrial was denied. Approximately two hours later the jury returned with its verdict. The Jury found Joseph Shaia guilty of all 28 counts against him and Kathleen Shaia, James Van Landingham, and Wealthy Van Landingham guilty of the 25 counts against them. Michael Booth was found guilty on eight of the eleven charges against him and Shawn Winston was found guilty of nine of the sixteen counts with which he was charged. The jury was excused. The Defendants moved for either acquittal or a new trial and the Court instructed them to file their motions. Those motions were duly filed and all parties set forth their respective positions in briefs filed with the Court.
On February 10, 2000 after considering the controlling rule of law, the jurors' responses to questioning on the matter in the two hearings, and the parties briefs, this Court granted the Defendants' Motion for a New Trial. In doing so, the Court found that the jury's exposure to the trial notes constituted one of those "egregious circumstances" where prejudice to the Defendants would be presumed. The Court found this error inherently prejudicial for the following reasons:
1. Certain information in the trial notes was not admissible evidence;
2. The jury's exposure to the notes was significant;
3. The Court was the source of the "extra-record" information; and
4. The Court's voir dire and special instructions did not cure the defect.
The Court also found that the State did not meet its burden of showing the error was harmless.
On February 17, 2000, the State filed its Motion for Reargument. In its motion, the State argues that the Court misinterpreted the jurors' responses during the hearings on the matter and that it can only show the error harmless by reopening the record and recalling the jurors for additional questioning. The Defendants filed no response to this motion.
The State also attached to its motion a transcript of a telephone conversation the Attorney General's office had on February 16, 2000, with the person who was Juror #6 in the trial. This same juror sent a letter to the Court, which was received on February 22, 2000, offering to "put myself at your disposal to appear in court by summons to answer any additional questions regarding clerk notes." However, when previously questioned by the Court, this juror indicated that he did not see the notes and was not aware of their existence. Thus, he would provide no additional information.
As this opinion was being drafted, this Court received notice that the State had filed an appeal to the Delaware Supreme Court seeking review of this Court's decision granting a new trial. Given the pending motion, the State's appeal may well be interlocutory. However, since the decision has been made on that motion, in the interests of judicial economy, and so that the Supreme Court may now have a final judgment for subsequent review, this Court issues this opinion.
In civil cases, motions to reargue toll the appeal time. See Pinkert v. Wion, Del. Supr., 431 A.2d 1269, 1270 (1981). Generally, in criminal cases, appeals must be taken within 30 days of the sentencing. See Supr. Ct. R. 6. Here there was no sentencing and the Court would look to the Superior Court Civil Rules for guidance. Super. Ct. Cr. R. 57. The State appeals under 10 Del. C. § 9902 (d) this Court's decision granting a new trial, and the decision on this issue would not be final until the motion to reargue is decided. See State v. Skyers, Del. Supr., 560 A.2d 1052 (1989). The reason for this rule is that until all matters are decided, appellate review would be premature. See Linda v. Robert, Del. Supr., 493 A.2d 968 (1985) (Where a motion to reargue is filed with the trial court, such appeal would not be ripe until the motion is decided.).
ANALYSIS
Under settled Delaware law:
[R]eargument will usually be denied unless it is shown that the Court overlooked a precedent or legal principle that would have controlling effect, or that it has misapprehended the law or the facts such as would affect the outcome of the decision. A motion for reargument should not be used to merely rehash the arguments already decided by the court.Risk Enter. Management Ltd. v. National Union Fire Ins. Co., Del. Super., C.A. No. 97C-04 — 024, Witham, J. (Dec. 8, 1999) ORDER at 1.See also Steadfast Ins. Co. v. Eon Labs Mfg., Inc., Del. Super., C.A. No. 98C-01-058, Del Pesco, J. (Aug. 18, 1999) Let. Op. at 1.
The State, in its motion, does not point to anything that shows the Court overlooked controlling legal authority or misapprehended the law when it originally ruled on this issue and granted the new trial. This Court looked to Massey v. State and Hughes v. State in adopting its rule of law for granting the Defendants' motion for a new trial where there are allegations of juror misconduct. Massey v. State, Del. Supr., 541 A.2d 1254 (1988); Hughes v. State, Del. Supr., 490 A.2d 1034 (1985). From Massey, this Court adopted the following test:
We hold that to impeach a verdict based on juror misconduct, a defendant must establish actual prejudice unless the defendant can show that the circumstances surrounding the misconduct were so egregious and inherently prejudicial so as to support a presumption of prejudice to defendant.Massey at 1255. This standard was also adopted and applied in Lynch v. State, Del. Supr., 588 A.2d 1138, 1139 (1991) and State v. Deshields, Del. Super., Cr. A. No. 95-07-0213, Carpenter, J. (Sept. 30, 1996) Opinion and ORDER at 2. Moreover, in applying the law to the facts of the case, this Court looked to numerous cases for guidance on what types of jury exposure to extra-record information would constitute "egregious circumstances" where prejudice is presumed.
The State, in its motion, does not allege that the Massey test was either incorrectly adopted or applied. In fact, the State has never discussed Massey and its applicability, neither in its brief on the Motion for a New Trial nor in its present motion. This is so, even though the Court, after the second day's voir dire, provided the parties with Massey and other cases the Court thought were applicable. Because this Court has not been provided with substitute authority, reliance on the rule of law from Massey and its progeny is appropriate.
The State's Motion contends that the Court "misapprehended" the facts in that it did not have sufficient information before it to properly apply the test discussed above. Specifically, the State argues that the Court may have misinterpreted what it found as a discrepancy in the jurors' responses on the second day of voir dire. The State also argues that a third hearing is needed so that the factual record may be more fully developed on this issue.
This Court, in its opinion granting a new trial, noted in the recitation of facts that when the jury was questioned as a group the first day, only four jurors acknowledged the presence of the trial notes in the jury room. However, on the second day, when questioned individually, eight jurors were aware of the trial notes' presence.State v. Shaia, Del. Super., Cr. A. No. 99-03-0615, Stokes, J. (February 10, 2000) Mem. Op. at 5. The other place this discrepancy was discussed was in the section of the opinion where the Court determined that the special voir dire and instructions did not cure the problem of the jury's exposure to the trial notes. Shaia at 22 ("Finally, it is significant that when asked as a body if the jury had seen the trial notes, only four jurors raised their hands but upon individual voir dire eight indicated they had seen the trial notes.").
The State attributes the difference in response to the fact that on the first day the Court asked: "Of the people on the jury raise your hand that had actually seen these and actually put your hands on?" States Motion for Reargument at 2 (emphasis added by State). On the second day, however, when questioned individually, the jurors were asked merely who had seen the trial notes.
For purposes of discussion, let us assume a narrow view of the questioning caused the different responses. Even if that does explain the discrepancy, a change in that fact alone does not alter the result. Upon the conclusion of individual questioning, it was apparent that: (1) five jurors actually put their hands" on the trial notes and leafed through them or read them to varying degrees; (2) three jurors "saw" them in the room, acknowledged their presence, but did not handle or read them; and (3) the last four jurors denied any knowledge that the trial notes were in the jury room at all.
Upon individual questioning, five jurors admitted touching the trial notes: Jurors 1, 2, 4, 8, and 12. The difference in the responses remains significant for the reasons stated in the Court's original opinion at page 22. The demeanor of the jury while being questioned was defensive and the different voir dire responses were not solely the product of semantics. See DeShields v. State, Del. Supr., 534 A.2d 630, 636 (1987) ("Determinations of juror impartiality are the responsibility of the trial judge who has the opportunity to question the juror, observe his or her demeanor, and evaluate the ability of the juror to render a fair verdict.").
Notwithstanding the State's theory concerning the discrepancy, this Court is still troubled by the individual voir dire. First, five jurors acknowledged varying degrees of exposure to the contents of the trial notes. It only takes the exposure of one juror to deny a defendant's right to an impartial jury. Massey at 1257. Second, the Court is still concerned by the idea that eight jurors acknowledged that the trial notes were in the jury room while four jurors did not see them in the room at all. This is so even though Juror #4 testified that she looked at the trial notes, saw they included a list of exhibits, and "tossed" the packet across the table to the jury foreman. With these trial notes, consisting in part of yellow sheets of legal sized paper, being tossed across the table around which the jury was seated, the Court is reminded that one is presumed to see and know what is in plain view.
Ultimately, even if the discrepancy could be reconciled, the decision would remain the same. As a matter of law, jury exposure to the trial notes in this case was inherently prejudicial. The discrepancy was merely one factor in the finding that the instructions and voir dire did not overcome this inherent prejudice. Thus, reargument will not be granted on this basis.
The State also argues that the jurors should be recalled to conduct another hearing concerning the jury's exposure to the trial notes. However, the two hearings already held on this issue created a sufficient record for the Court to decide the Defendants' Motion for a New Trial, and a third hearing is unnecessary.
The Delaware Supreme Court has repeatedly stated that its "standard of review requires us to accord the trial court broad discretion in determining the mode and depth of investigative hearings into allegations of juror misconduct and the appropriate remedy." Massey at 1257. See also Lynch v. State, Del. Supr., 588 A.2d 1138, 1140 (1991) ("[T]he trial court is given broad discretion concerning the scope and form of questions to be asked on voir dire."); Sheeran v. State, Del. Supr., 526 A.2d 886, 897 (1987) ("A trial judge has very broad discretion in deciding whether a case must be retried or a juror summoned and investigated due to alleged exposure to prejudicial information or improper outside influence." (emphasis original)); Smith v. State, Del. Supr., 317 A.2d 20, 24 (1974) ("The way in which the trial judge conducted the voir dire in this case was entirely within his discretion and, absent a showing of abuse, he will not be reversed.").
The State, in its motion, argues that a Supreme Court Order in theHughes v. State litigation provides the exclusive procedure for conducting these hearings. See Hughes v. State, Del. Supr., No. 260, 1982, Herrmann, C. J. (Oct. 31, 1983) ORDER. However, in light of the authority cited above, the Order appears to be case specific and helpful as a guideline where a record has not already been made. This Court believes that the Supreme Court did not intend to limit how a trial judge should respond to the exigencies of trial.
In conducting the two hearings, the Court recognized the jury's ongoing deliberations and the limits of D.R.E. 606(b). Thus, while the Court could not ask whether the jurors specifically saw prejudicial information — the references to Motions to Dismiss, Motions to Sever, Motions for Judgment of Acquittal, excluded and inadmissible evidence, and approval of prosecution experts — the Court reiterates that these notes are replete with references to matters that must be handled outside of the jury's presence. Especially harmful is what could be seen as judicial approval of the State's case and the loss of the Court's impartiality. See McCool v. Gehret, Del. Supr., 657 A.2d 269, 280 (1995) (". . . [T]he appearance of partiality on behalf of a litigant is greatly prejudicial to the adverse party and raises the suspicion of judicial favoritism. . . .")
D.R.E. 606(b) provides:
Upon an inquiry into the validity of a verdict or an indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental process in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
From the individual questioning, this Court has evidence that five jurors had varying degrees of exposure to the information contained in the trial notes. Two jurors used the trial notes to locate specific pieces of evidence using the exhibit list that was a part of the packet. One of the remaining jurors looked through the trial notes to see if her name was spelled correctly on the jury list and the other stated that he glanced at the package and saw "the times everybody was on testimony."
After two hearings, the record is sufficiently developed to find that the jury's exposure to the trial notes was inherently prejudicial. Because this Court finds exposure to trial notes is inherently prejudicial, there need not be a finding of actual prejudice. See Massey at 1257 and Diaz v. State, Del. Supr., __ A.2d __, No. 383, 1998, Holland, J. (Dec. 16, 1999) Op. at 33. No hearing is necessary upon a finding of inherent prejudice. State v. Deshields, Del. Super., Cr. A. No. 95-07-0213, Carpenter, J. (Sept. 30, 1996) Op. and ORDER.
This Court is also concerned that the actual process may have had an unintended prejudicial effect by upsetting the jurors and leading them to draw unwarranted conclusions about the nature of the information contained in the trial notes. Illustrative are the following responses from jurors when questioned individually:
THE COURT: How are you doing?
JUROR No. 4. I'm fine, Your Honor. A little nervous.
THE COURT: With respect to the use of the trial notes as you indicated, are you able to put that out of your mind and aside?
JUROR No. 4: Yeah. I never used them for anything. I don't think I'll forget what we went through today.
THE COURT: How are you, Juror No. 8?
JUROR No. 8: Fine, thanks. Having a great time.
THE COURT: How are you doing, 11?
JUROR No. 11: Nervous.
From this dialogue, it is clear that these jurors were nervous, upset, and angry. Based on the questioning, all jurors knew they should not have been exposed to the trial notes and likely inferred that they contained material harmful to the defendants. It would be blinking at reality to believe that these trial notes were not read, and the circumstances surrounding them, had no effect on the jury's deliberative process. Moreover, inquiry into these types of thought processes is prohibited by D.R.E. 606(b).
Finally, the State did not object to the hearing procedure either at the conclusion of the two hearings or in its opposing brief to the Defendants' Motion for a New Trial. Moreover, the State's answering brief presented limited argument on the subject. Having lost once on that issue, a motion for reargument is not appropriately used to "take a second bite of the apple." At trial, the parties were fully aware of the Court's concern about this intrusion into the deliberative process. To that end, the Court instructed the parties that it was denying the request for a mistrial but that the Court expected the Defendants' would file a motion for a new trial and both parties would fully brief their respective positions.
CONCLUSION
This Court has not overlooked controlling precedent or legal authority which would warrant revisiting its prior decision to grant a new trial. Moreover, the record is sufficient to show that jury exposure to a court's trial notes is inherently prejudicial and thus, violates a defendant's right to a fair trial.
After nearly six weeks of trial, this Court observed that the State's case was not "open and shut." The State relied heavily on allegations of omissions of material fact and on accomplice liability to draw the defendants together — a special challenge in any prosecution. "But the jury could, without taking leave of its senses, have construed the evidence more benignly. Because it was a close case the alleged trial errors take on greater importance that they would otherwise." United States v. Best, 7th Cir., 924 F.2d 646, 1182 (1991), rev'd on other grounds United States v. Best, 7th Cir., 939 F.2d 425 (1991) (en banc). This Court faced the same situation.
In this case, these Defendants are exposed to severe penalties and one may serve minimum mandatory time. All citizens deserve to have their trial decided only on the evidence properly admitted at trial and without inherently prejudicial influences. The integrity of the criminal trial process was compromised through the introduction of the trial notes, and there can be no confidence that this verdict is reliable, just, or fundamentally fair.
Considering the foregoing, the State's Motion for Reargument is DENIED.
IT IS SO ORDERED.