Opinion
I.D. No. 0002004767
Submitted: August 13, 2001
Decided: August 27, 2001
Motion for New Trial — Denied.
Robert O'Neill, Esquire, John R. Garey, Esquire, Martin O'Connor, Esquire, Deputy Attorney General.
Kevin J. O'Connell, Esquire.
Andrew Witherell, Esquire.
Dear Counsel:
Defendant Ralph Swan has moved for a new trial following his conviction on three counts of first degree murder. As none of the asserted grounds has merit, the motion will be denied. Swan makes these claims:
1. He asserts that one of his appointed attorneys, David W. Jones, had a conflict of interest because he was nominated by the Governor and confirmed by the State Senate for a judicial post, Family Court Commissioner, while the jury was deliberating in the guilt phase of the trial. This claim of conflict is based on the fact that a State Senator, Nancy Cook, was closely related to the victim, Kenneth Warren. While not spelled out by Swan, the implication of his claim is that Senator Cook exerted influence on Mr. Jones in return for her support or that Mr. Jones failed to defend Swan vigorously to curry favor with Senator Cook.
Senator Cook, as the defendant acknowledges, abstained from voting or participating in Mr. Jones confirmation proceedings. In place of evidence of improper conduct, Swan asks Court to "imagine" that she influenced voting Senators. The Court will not indulge in such speculation because there is no evidence of any impropriety by either Senator Cook or Mr. Jones.
To begin with, Mr. Jones nomination and confirmation took place after completion of the guilt phase of the trial and before the beginning of the penalty phase, thus, during the guilt phase there was no reason for any interaction between Senator Cook and Mr. Jones, because his name had not been sent to the Senate and he was only one of several candidates for the position. During the penalty phase, confirmation had already occurred, making the appointment process complete.
Next, Swan makes no claim as to any deficiencies in Mr. Jones representation. He simply fails to tell the Court what he thinks Mr. Jones did or failed to do that prejudiced his defense.
Finally, and most importantly, from the Court's perspective Mr. Jones' defense of Swan was highly skilled and exceptionally vigorous. This is in part evidenced by the fact that thejury deliberated four days before convicting Swan and recommended a death penalty by a narrow seven to five margin.
2. Swan argues that the Court erred in not ordering plural pronouns redacted from various hearsay statements of co-defendant Adam Norcross. Norcross's hearsay statements were admitted as declarations against penal interest under Delaware Rule of Evidence 804(b)(3). However, adhering to the ruling of the Delaware Supreme Court in Barrow v. State 749 A.2d 1230, 1242-1245 (2000), the Court ordered all references to Swan by name redacted; all plural usages in which the context pointed to Swan redacted and all statements that Norcross's accomplice fired the fatal shot redacted. The Court allowed plural usages which did not point to Swan or did not shift blame from Norcross to be used. These plural phrases or words implicated Norcross in a conspiracy and were confirmed by the victim's wife's testimony that there were two perpetrators.
On one occasion this ruling was violated by the State, the Court believes, inadvertently. Mr. Jones objected immediately and the Court took vigorous corrective measures. It instructed thejury that the State had violated a Court ruling; instructed the jury to disregard in its entirety the statement which was being read in redacted form; and struck the transcript of the statement from the record. The Court denied a motion for mistrial, since the reference to Swan was indirect and fleeting and the Court judged that its corrective measures were effective. The Court remains of the opinion that its basic ruling was correct and that its remedy for the violation of that ruling was more than adequate.
3. Swan asserts "upon information and belief' that there is "reasonable articulable suspicion" that certain witnesses called by the State in rebuttal, who testified earlier as defense witnesses, had been tampered with or intimidated. The only defense witnesses called by the State in rebuttal were Michael "No Joke" Stewart, a professional boxer and Keith Stoffer, his manager. Each to a certain extent modified the testimony he had given when called by the defense.
Stewart and Stoffer were questioned on direct and cross about their interviews with the State agents leading up to their rebuttal testimony. Each denied that he was subjected to any coercive actions by State agents. The defense has supplied the Court with no affidavits to the contrary. The Court, therefore, cannot articulate a reasonable suspicion that these witnesses were coerced by the State in changing their testimony.
4. Also, "upon information and belief" Swan claims that there are witnesses who now say that co-defendant Adam Norcross could not have been at the crime scene because he was in Middletown when Kenneth Warren was murdered. Swan says this calls into question Norcross's psychological balance and the credibility of his statements admitting participation in the crime and implicating Swan. Swan supplied no affidavits or statements from these witnesses nor does he identify them.
Adam Norcross made five statements at widely separated times, including one during allocution, in which he admitted participating in Kenneth Warren's murder. He produced no alibi witnesses at trial and has filed no post-trial motions based on newly discovered alibi evidence. This claim of Swan is plainly incredible.
5. Finally, and again "upon information and belief" the defendant asserts that the State offered rebuttal witnesses "certain benefits by way of reduction of pending or possible penalties, fines and/or probation that were not disclosed to the defense." As with many of his other claims Swan does not supply the Court with the information he says leads to his belief.
The State called seven rebuttal witnesses. They included an assistant medical examiner, an investigator hired by the defense, three businessmen and the previously mentioned Michael Stewart and Keith Stoffer. There is no reason to believe that any of these witnesses had criminal proceedings pending against them. Moreover, as noted previously, Stewart and Stoffer were questioned about State coercion and denied that the were subjected to any.
All grounds for a new trial asserted by defendant lack merit. The motion is Denied
IT IS SO ORDERED.