Opinion
ID No. 0103019016
Submitted: February 14, 2002
Decided: February 21, 2002
Upon Defendant's Motion for Mistrial
DENIED
Robert J. O'Neill, Jr., Esq. and Martin B. O'Connor, Esq., Deputy Attorneys General, for the State of Delaware.
Darryl K. Fountain, Esq., for the defendant.
ORDER
This 21st day of February, 2002, upon consideration of Defendant's Motion for Mistrial, it appears that:
(1) Defendant Derrick Smallwood was convicted by a jury of Resisting Arrest, 11 Del. C. § 1257, two counts of Attempted Murder in the First Degree, 11 Del. C. § 531, and two counts of Possession of a Firearm During the Commission of a Felony, 11 Del. C. § 1447A. He has moved for a mistrial alleging that a juror did not truthfully answer a voir dire question. Because the motion has been made after the verdict, it will be deemed a motion for a new trial pursuant to Superior Court Criminal Rule 33.
(2) The jury of twelve in this case was selected after only two peremptory challenges, one by the State and one by the defense. Meta A. Hicks was Juror No. 6 and the only African-American sworn as a regular juror. After Smallwood was found guilty, he filed the present motion and alleged that Hicks, whose maiden name is Hampton, failed to disclose the arrests of two of her relatives for crimes of violence.
(3) The Court held an in camera he a ring on Smallwood's motion on January 30, 2002. During this hearing the Court questioned Hicks, about her lack of an affirmative response during voir dire to the following question:
Have you, a member of your family or a close friend ever been charged with a violent crime or been a victim of a violent crime, including but not limited to robbery, assault, rape, murder or, burglary?
The Court also asked additional questions suggested by counsel. Additionally, the Court took judicial notice of its criminal case docket.
(4) At the time of trial, Hicks was 48 years old with a high school equivalency degree. She worked as a resident advisor for King Crest Services assisting the mentally disabled with their daily living activities. She had not served on a jury before this case.
She acknowledged in camera that her father is Arthur Hampton, Sr. and that Arthur Hampton, Jr. is her brother. The Court's docket in Kent County shows that her father was charged in 1996 with murder in the first degree but he has not been tried because he has been found incompetent to stand trial. The docket also shows that her brother has been charged with assault in the second degree in 1992 and in 2001. On October 11, 2001 her brother was sentenced to time served followed by home confinement for assault in the second degree.
(5) Hicks explained at the in camera hearing that she did not affirmatively respond to the voir dire question because she misunderstood it. She was not trying to hide or conceal information from the Court or the parties. She was unsure about her father's case "because they really did not know what to do, I don't think, with that case" and the only detail she knew of her brother being charged or convicted was "that he had six months home confinement." She believed she answered the question honestly. She had no special desire to get on the jury. When selected as a juror she had no bias or prejudice for or against the State or the defendant.
Tr. of In Camera Hr'g at p. 16.
Tr. of In Camera Hr'g at p. 17.
Tr. of In Camera Hr'g at p. 17 .
Tr. of In Camera Hr'g at p. 23.
Tr. of In Camera Hr'g at p. 18 and p. 28.
Tr. of In Camera Hr'g at p. 26.
Id.
(6) The Sixth Amendment to the U.S. Constitution and Article I of the Delaware Constitution guarantee Smallwood a fair trial by an impartial jury. Smallwood is entitled to a new trial for an inadvertent nondisclosure during voir dire if he can demonstrate that Hicks failed to answer honestly a material question and that a correct response would have provided a valid basis for a challenge for cause.
Banther v. State, 783 A.2d 1287, 1290 (Del. 2001).
(7) After a careful assessment of her credibility, I am satisfied that Hicks was confused when she did not give an affirmative answer to this voir dire question and that she intended to be honest with the Court. A correct response would not have provided a valid basis for a challenge for cause. She is not disqualified from jury service simply because she has relative switch a criminal record. She demonstrated through her testimony that she was capable of fair and impartial jury service. I find that she had no bias for or against any party in this case.
(8) Smallwood was not denied a fair and impartial jury nor is a new trial warranted in the interests of justice.
NOW, THEREFORE, IT IS ORDERED, that Defendant's Motion for Mistrial is DENIED.