Opinion
ID# 9910021368
Submitted: June 17, 2002
Decided: July 12, 2002
On Defendant's Motion to Dismiss.
DENIED.
ORDER
Before the Court is a motion filed by Kevin R. Slade ("Defendant") through his attorney, Kevin J. O'Connell, Esquire ("Mr. O'Connell") to dismiss an indictment against him on grounds that the prohibitions against double jeopardy contained in the Constitutions of the United States and Delaware prohibit his retrial. Defendant's motion for a mistrial in his first trial was granted after the State in its opening statement gave a recitation of testimony it expected to elicit from a witness in the form of Defendant's alleged confession to that witness and where the person to whom Defendant allegedly confessed then refused to testify as to that alleged confession. Defendant essentially now argues the State intended through these actions that Defendant be forced to move for mistrial. However, for the reasons below, Defendant's motion is DENIED.
1. Defendant was indicted by a grand jury for the crimes of Murder First Degree (title 11, section 636 of the Delaware Code) and Possession of a Firearm During the Commission of a Felony (title 11, section 1447A of the Delaware Code). The case was prosecuted as a non-capital murder. There were no eyewitnesses to the homicide allegedly committed by Defendant. Defendant was however implicated in the victim's murder by statements made by one of Defendant's acquaintances, Sean Jamison ("Jamison").
In an unrelated homicide investigation, Jamison had told Philadelphia police officers that Defendant had confessed to him that he had killed the victim in this case. Jamison reiterated his statements in a videotaped sworn statement made to Delaware police officers after he had pleaded guilty to the unrelated homicide. Jamison is currently serving a life sentence without benefit of parole or probation in the Delaware Correctional Center.
See State v. Sean Jamison, ID #9910221436.
Trial commenced against Defendant on January 8, 2002. The State knew prior to trial that there was a possibility that Jamison would not testify at trial. Therefore a Deputy Attorney General, James A. Rambo, Esquire ("Mr. Rambo") visited Jamison in prison shortly before Defendant's trial commenced to discuss his testimony.
Mr. Rambo has submitted an affidavit (in connection with the State's opposition to Defendant's Motion to Dismiss) reflecting the conversation he had with Jamison. Mr. Rambo described his meeting with Jamison as "cordial." Jamison "expressed some reluctance about testifying in the Slade trial," but when asked "directly" if he would testify, "he told [Rambo] that he would keep an open mind about it and that chances were `50/50' that he would do so." The State has represented that at that time, it still believed Jamison would testify.
Rambo Aff. ¶ 4.
Rambo Aff. ¶ 5.
Rambo Aff. ¶ 8.
Prior to jury selection on the day Defendant's trial commenced, the State informed the Court and defense counsel that Jamison had recently told the Deputy Attorney General prosecuting Defendant, R. David Favata, Esquire ("Mr. Favata") that Jamison might refuse to testify if called to the witness stand. The following exchange with the Court then took place:
Mr. Favata: There is another issue, Your Honor, you probably should address now as well. One of the State's main witnesses, Sean Jamison . . . [may not testify].
Initially, when he gave the statement to us in October of . . . [2000], he had agreed that he would make himself available to testify at this trial.
. . . .
When we brought him to a pretrial interview, he informed me in no uncertain terms that I could go pack sand, and he was refusing to testify, and he was not going to take the stand.
. . . .
That being the case, if that happens the State will seek to introduce his statements to the police, the statements he made to them in Philadelphia . . . and the [video] statement he made . . . after his plea, under several theories, one of which is . . . [Delaware Uniform Rule of Evidence 807]. . . ."
. . . .
We made [defense counsel] aware a long time ago that we intended to use Sean Jamison as a witness, and all the statements that he made.
. . . .
The Court: Is this something that needs to be resolved prior to opening statements?
Mr. O'Connell: Perhaps.
The Court: I wish I had been aware of this earlier than right now.
Mr. Favata: Well, in the abundance of caution, we brought it up now. What he's going to do, we don't know. It's something that just came up. . . .
The Court: Because if he does agree to testify, then there is no issue.
Jan. 8, 2002 Pretrial Conference Tr., at 19-22.
Jan. 8, 2002 Pretrial Conference Tr., at 19-22.
Thus the State (as well as defense counsel and the Court) was aware that there was a possibility that Jamison might refuse to testify at trial, although the State was prepared to argue alternative theories of admissibility. Nevertheless, Defendant sought to preclude the State from mentioning in its opening statement the testimony it expected to elicit from Jamison:
The only reason I address the question [on the admissibility of Jamison's previous testimony should he refuse to testify] now is the State runs the risk of an application for a mistrial if, during opening statement, they refer to much of what he says and he never takes the stand.
. . . .
And so if . . . [Jamison] doesn't testify and Mr. Favata has made many references to what is rather damaging testimony, I will certainly move that it be struck.
Jan. 8, 2002 Sidebar Tr., at 2.
Jan. 8, 2002 Sidebar Tr., at 2.
In its opening statement, the State made references to the testimony it intended to elicit from Jamison in order to help establish Defendant's guilt. Specifically, Mr. Favata told the jury "Sean Jamison . . . will be testifying. . . ." Mr. Favata also told the jury that:
Jan. 8, 2002 Trial Tr., at 4.
The [D]efendant, the State contends, went . . . [to an apartment Jamison maintained in the City of Wilmington] and got . . . [a] gun . . . according to Sean Jamison . . . who gave a statement to the police . . . when he was arrested in Philadelphia. . . .
Jan. 8, 2002 Trial Tr., at 9-10.
Jan. 8, 2002 Trial Tr., at 9-10.
Finally, Mr. Favata told the jury that:
Now according to . . . Jamison's statement to the police, the police did come to . . . [Jamison's apartment soon after the victim was shot] and they knocked on the door, but the [D]efendant and . . . Jamison, because they knew there was guns and drugs in the . . . [apartment], never answered the door. You will also hear . . . Jamison say while he was in the apartment with the [D]efendant, the [D]efendant admitted to him that he had killed . . . [the victim]. In detail, he confessed. He confessed about how he had shot him first in the hip, and then, when he was on the ground, jumped over the body and shot him in the head. Several hours later, the [D]efendant is still in a panic because he's got the murder weapon with him He tells . . . [Jamison] he's got to get the gun out of the . . . [apartment]. And apparently, he did, because later that day . . . his aunt finds the gun under the seat in her car.
Jan. 8, 2002, Trial Tr., at 14.
Jan. 8, 2002, Trial Tr., at 14.
Subsequent to the State's opening remarks, the Court asked the parties to brief the issue of whether Jamison's prior statements would be admissible should he refuse to testify. As it had stated in the pretrial conference, the State argued in its brief that Jamison's statements should be admitted under the "statement against interest" exception contained in Delaware Uniform Rule of Evidence 804(b)(3), or, alternatively, under the "residual exception" to the hearsay rule contained in Delaware Uniform Rule of Evidence 807. Defense counsel opposed the introduction of Jamison's prior statements.
That rule provides that a "statement against interest" is admissible if the declarant is unavailable, due to, among other things, a refusal to testify; a "statement against interest" is a "statement which was, at the time of its making, so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." D.R.E. 804(b)(3).
That rule provides that statements having equivalent circumstantial guarantees of trustworthiness as required by the other exceptions to the hearsay rule may be admitted if "(A) [t]he statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of . . . [the Delaware Uniform Rules of Evidence] and the interests of justice will be best served by admission of the statement into evidence." D.R.E. 807.
After the State had delivered its opening statement (but before the Court later denied its application to otherwise admit Jamison's prior statements), Jamison was called to the witness stand. The following exchange took place:
The Court: Mr. Jamison, I had you brought up early before the jury because you are the next scheduled witness for the State to testify in this trial. Do you understand that?
Jamison: Yes.
The Court: Do you understand that you are the next scheduled witness for the State in this case, the State v. Kevin Slade?
Jamison: Yes.
The Court: Do you understand that the State intends to call you to the witness stand and ask you questions?
Jamison: Do you understand that I'm trying to go back to . . . [the Delaware Correctional Center]?
The Court: You have to answer the questions that I am asking you. Do you understand that you are the next witness in this case and that the State will be asking you questions about this case as part of testimony before the jury?
Jamison: Yeah.
The Court: Do you understand this is what I've been told, that you'll be asked a number of questions? One of them will be your role in the — with Mr. Slade on the night that the murder [in this case] is alleged to have occurred? Plus you'll be asked questions about what Kevin Slade may have said to you. Do you understand that?
Jamison: No, I don't understand a whole lot of questions. I was told of two questions. So as far as other questions, no.
The Court: Do you understand that you have to answer the —
Jamison: I don't have to do anything.
The Court: — the questions that the State is going to put to you? Do you understand that? (Pause.)
The Court: Do you understand that you have to answer the questions that I'm asking you right now? (Pause.)
The Court: Do you understand that if you refuse to answer my questions right now, that the Court can hold you in contempt of court?
Jamison: I'm aware of that.
The Court: I'm going to postpone further questions until . . . [Jamison's attorney] arrives.
. . . .
Jamison: Why would we have to postpone anything? I'm not willing to do anything. Why not just send me back down to . . . [the Delaware Correctional Center]?
. . . .
Why not just send me back to . . . [the Delaware Correctional Center] and let me do the time that I have?
The Court: I'm going to wait until . . . [your attorney] arrives in case you wish to consult with him. Following consultation with his attorney, Jamison continued to refuse to be sworn or to give any testimony; the Court held him in contempt and sentenced Jamison to an additional 30 days incarceration.
Jan. 16, 2002 Trial Tr., at 11-14.
Jan. 16, 2002 Trial Tr., at 21.
Jan. 16, 2002 Trial Tr., at 11-14.
Jan. 16, 2002 Trial Tr., at 21.
After Jamison was held in contempt, the State made an application that "Jamison be brought before the jury and place on the record his refusal to testify . . . so that the jury is not left with a prejudicial negative inference that the State is somehow withholding vital evidence," because the jury was "told and probably expect[ed] that he . . . [would have testified] and [anticipated] the things that he would . . . [have said] if he [had] testified." The following exchange then took place:
Jan. 16, 2002 Trial Tr., at 22.
The Court: What would be the State's position if the State had made no mention of . . . Jamison and his possible testimony in its opening statement? Then am I understanding the State to say there would be no need to call him before the jury because the jury was never told of his existence?
Mr. Favata: No, Your Honor.
The Court: What I'm getting at is whether or not the State sort of creates this situation by having alluded to the . . . Jamison testimony in its opening statement.
Mr. Favata: We did not create this situation at all.
The Court: I'm not saying the State hasn't operated in good faith. Don't misunderstand me.
Mr. Favata: No. So the record is clear, we have not created the situation. As the Court is well aware, the purpose of opening statements is to inf[orm] the jury what the State's expected evidence will be. And it was our intention, and has been from the very beginning, to call . . . Jamison. And based on comments and discussions made with him . . . after he pled guilty to murder in the first degree and gave the video statement, complete video statement under oath after Miranda with his attorneys present, there was discussions that he would testify about what he said in that video. It was out of an abundance of caution, after we learned . . . that he may be refusing to testify, that . . . [the State] informed the Court of this problem so we could address it and the Court could be prepared to address it. And it was until just now that basically he closed — he slammed the door in our face.
Jan. 16, 2002 Trial Tr., at 23-24.
Jan. 16, 2002 Trial Tr., at 23-24.
The Court however refused to allow Jamison to be brought before the jury, ruling that "under [Delaware Uniform] Rule [of Evidence] 403, the probative value to the State of the jury seeing . . . why [Jamison had] not be[en] sworn and answer[ed] questions [wa]s substantially outweighed by the prejudice that would accrue to the [D]efendant." The Court additionally stated that it would defer ruling on Defendant's motion for mistrial until the completion of the State's case in chief.
That rule provides that although relevant, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." D.R.E. 403.
Jan. 16, 2002 Trial Tr., at 29.
When trial resumed the next day (and after the State had concluded its case in chief), Defendant moved for a mistrial alleging that the comments made by the State in its opening remarks led to Defendant being prejudiced when Jamison subsequently failed to testify. Significantly, Defendant's counsel stated "I'm not saying the State acted in bad faith," and that he was "not making that argument." The Court considered whether a limiting instruction (instructing the jury to disregard that portion of the State's opening statement that referred to the Jamison testimony) would be effective. The Court also considered the State's earlier disclosure of the possibility that Jamison would refuse to testify at trial:
Jan. 17, 2002 Trial Tr., at 11.
. . . to its credit, the State alerted the alerted the Court and defense counsel immediately prior to this possibility. And there's no issue made the State's not acting in good faith. The defendant acknowledged that the State acted in good faith. And the Court doesn't find otherwise.
Jan. 17, 2002 Trial Tr., at 45.
Jan. 17, 2002 Trial Tr., at 45.
The Court ultimately declined to give any limiting instruction and concluded as follows:
But the bottom line is, taking into account the circumstantial evidence of this case, and it not being the strongest case certainly the Court has seen, and the importance of the issue, the fact it was a tactical decision by the State to refer to the . . . Jamison testimony in its opening statement, I reluctantly, but necessarily conclude, in order to give a fair trial to the [D]efendant . . . that a mistrial should be granted.
Jan. 17, 2002 Trial Tr., at 50.
Jan. 17, 2002 Trial Tr., at 50.
The retrial of Defendant is currently scheduled for September 10, 2002.
2. In his motion to dismiss the indictment against him, Defendant argues that the State "cannot claim surprise that Sean Jamison refused to testify," and that "there could be no good faith belief on the part of the [S]tate that Sean Jamison's out of court statements would be admissible against . . . [Defendant], should Jamison . . . not testify." Additionally, Defendant argues that because of this Court's "limited capacity to know a prosecutor's subjective intent in choosing to nonetheless give great detail concerning the out of court statements of Sean Jamison, the Court can only conclude from the objective facts before it that the State intended to `goad' . . . [Defendant] into moving for a mistrial. . . ." Defendant concludes with the statement that should his motion be denied "and Sean Jamison changes his mind again and decide[s] to testify [in a retrial against Defendant], the State will have benefited from its own inappropriate conduct which precipitated a mistrial," a result Defendant claims would be "an injustice [that] cannot be tolerated by Delaware courts."
Def.'s Mot. at 8.
Id. at 9.
Id.
In response, the State argues that there is "absolutely no evidence in the record" to support an accusation of prosecutorial bad faith. Without an argument accusing the State of acting in bad faith, the State contends that "the Court must consider whether the prosecutor's conduct `intended' to cause or provoke a mistrial hoping to reap an unfair advantage in a new trial," and that a "careful review of the objective facts and circumstances of this case" demonstrate that the State did not so intend. The objective facts the State argues support such a finding include the State's belief that it "had a basis for believing there was a 50% chance of Jamison testifying," and its further belief that "the Court would still admit Jamison's statements under one or both of the theories offered by the State . . . if . . . [Jamison] . . . chose not to testify. . . ." The State argues that Jamison's motion for dismissal of the indictment should therefore be denied.
State's Resp. at 2.
Id. at 3.
Id. at 7.
Id.
3. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides a guarantee that no person shall be twice put in jeopardy of life or limb for the same offense. The Fifth Amendment is made binding on the states through the Fourteenth Amendment. The Double Jeopardy Clause of the Delaware Constitution is substantially similar to its federal counterpart; it is analyzed in a manner "identical" to its companion in the United States Constitution.
See U.S. Const. amend. V.
Benton v. Maryland, 395 U.S. 784, 794 (1969); Whalen v. State, 434 A.2d 1346, 1356 (Del. 1981).
See Del. Const. art. I, § 8.
Bailey v. State, 521 A.2d 1069, 1075 (Del. 1987).
Where there is neither judicial nor prosecutorial overreaching, "a motion by . . . [a] defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error." An exception to this rule is recognized in "those cases in which the conduct [complained of and] giving rise to . . . [a] successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." In its analysis of whether a prosecutor has "provoked" a defendant into moving for a mistrial, a court "should rely primarily on the objective facts and circumstances of the particular case."
United States v. Jorn, 400 U.S. 470, 485 (1971).
Oregon v. Kennedy, 456 U.S. 667, 679 (1982); State v. Long, 1993 WL 245367, at *1 (Del.Supr.)
Kennedy, 456 U.S. at 680 (Powell, J., concurring); Bailey, 521 A.2d at 1078.
4. The Court finds that there has been no judicial or prosecutorial overreaching in Defendant's prosecution concerning the failure of Jamison to testify. Defendant advised the Court during the trial when this issue arose that he did not believe the State had acted in "bad faith," and the Court agrees. Accordingly, retrial of Defendant will not be barred even though Defendant's motion for a mistrial was predicated on prosecutorial error.
Nevertheless, the Court must consider from the objective facts and circumstances of this case whether it can say the State intended to provoke Defendant into moving for a mistrial, in which case his retrial would be prohibited. The Court notes that prior to trial, Mr. Rambo conferred with Jamison in order to assure that Jamison would in fact testify at Defendant's trial. When it became clear that Jamison might not testify, a fact that was in some doubt given that Rambo's affidavit indicates the State believed there was a "50/50" chance of Jamison's still refusing to testify, the State promptly so notified the Court at the pretrial conference. At that time, the State declared that it was doing so "out of an abundance of caution." When taken together, these facts could reasonably lead to the conclusion that the State did not intend to provoke a mistrial by "taking its chances" on Jamison taking the stand.
Although the prosecutor's opening statement was somewhat detailed and eventually was shown to be in error since Jamison failed to testify, the State did proffer colorable alternative arguments (although rejected by this Court) for the admissibility of Jamison's prior statements in accordance with those hearsay exceptions it argued would apply at the pretrial conference, i.e., that Jamison's confession implicating Defendant as well as Jamison was against Jamison's interest, or alternatively, that the confession was evidence of a material fact and more probative than any other evidence available. The fact that the State did so argue, both at the pretrial conference (when it was unclear whether Jamison would or would not testify) and again after Jamison had refused to testify, tends to show an absence of any intent by the State to provoke a mistrial. Instead, a court could reasonably conclude that the State, aware of a possible risk, considered how best to proceed if a possible contingency came to pass; these actions by the State, objectively viewed, tend to establish a lack of motive on the State's part to provoke a mistrial.
See D.R.E. 804(b)(3).
See D.R.E. 807.
Cf. State v. Freeman, 1991 WL 166422 (Del.Super.) (denying defendant's motion to dismiss after court sua sponte declared mistrial without a finding of prosecutorial provocation because prosecutor relied on codefendant's agreement to testify when prosecutor mentioned expected testimony in his opening statement but defendant then refused to testify).
In addition to its finding that there was no judicial or prosecutorial overreaching in Defendant's prosecution, the Court also finds that Defendant has failed to show through the objective facts and circumstances of this case that the State intended to provoke Defendant into moving for a mistrial.
5. For the reasons stated above, Defendant's Motion to Dismiss is DENIED. This case will be put on the Case Review calendar on September 3, 2002 at 9:00 a.m..
IT IS SO ORDERED.