Opinion
ID#: 9811014143.
Submitted: July 13, 2000.
Decided: October 27, 2000.
Upon Defendant's Motion for a New Trial — DENIED
OPINION and ORDER
After a one week trial, on July 25, 2000 a jury convicted Defendant of Reckless Endangering First Degree and related charges, including serious weapons offenses. Now, Defendant faces sentencing as a habitual offender. On August 7, 2000, Defendant, who is pro se by his own choice, filed a Motion for a New Trial. For the most part, Defendant's motion rehashes issues considered and decided before or during trial. In other words, Defendant's motion presents almost nothing new and by the same token, there is no reason to order a new trial.
On motion of a defendant, the Court may grant a new trial if required in the interest of justice. Superior Court Civil Rule 33. See also Taylor v. State, Del. Supr., 685 A.2d 349, 350 (1996) aff'd, Del. Supr., 748 A.2d 914 (2000). ("The decision whether to grant a motion for a new trial is within the sound discretion of the trial court.")
Defendant's post-trial motion, however, provides an opportunity for the Court to crystalize the sprawling record that, of necessity, was created during this challenging litigation. As mentioned, Defendant adamantly chose to represent himself even after he was warned that he could be sentenced to prison for the rest of his life and after the Court carefully explained why self-representation was foolhardy.
Defendant's approach to self-representation created many problems. An overarching difficulty involved Defendant's inability to take "no" for an answer. Time and again, after the Court ruled against Defendant on a particular matter, he attempted to re-litigate the point. In fact, this motion is the latest example of that pattern. Because Defendant will misstate, overstate or understate the Court's rulings to make a point, it became necessary for the Court to revisit and recapitulate its rulings. And because Defendant has control issues and he re-raised matters whenever it suited him, the record is disjointed and difficult to follow. Accordingly, the Court will now put this case in perspective and summarize the larger points of contention running through the record, up to and including Defendant's post-trial motion.
I.
It is obvious from Defendant's conduct, including the offense itself and his approach to the litigation, that his mental condition is questionable. Before trial, Defendant was evaluated at the Delaware Psychiatric Center. While the evaluation suggested the need for further examination, the preliminary findings did not support a mental illness defense, nor did they justify the Court's denying Defendant's right to self-representation. Defendant refused to participate in a follow-up evaluation before trial. After Defendant was convicted, the Court insisted on the follow-up evaluation. While the final evaluation confirms the Delaware Psychiatric Center's initial assessment and the Court's conclusions about Defendant's mental condition, there remains no basis for a mental illness defense or insistence on court-appointed counsel over Defendant's objection. According to the experts, Defendant's problems involve substance abuse and personality disorders.
During the afternoon on Thanksgiving 1998, Defendant used cocaine. At the time, Defendant was staying in a downtown Wilmington hotel. Apparently, the combined effect of Defendant's mental condition and his voluntary intoxication produced some sort of hallucinatory, paranoid mental condition. After convincing himself that drug dealers were trying to attack him in his hotel room, Defendant made a frantic telephone call to a friend. Worried, the friend called the hotel and asked the desk clerk to check on Defendant's well-being. When the desk clerk went to Defendant's hotel room she heard a commotion. Either at Defendant's urging or on her own, the front desk clerk decided to call the police. Meanwhile, Defendant dialed 911 and police officers were dispatched to the hotel. Three police officers arrived just as the desk clerk returned to the front lobby. She directed the police to Defendant's room.
At trial, the three police officers, a sergeant and two patrolmen, testified consistently that as they approached Defendant's room, they could hear a disturbance. At first, they thought that more than one person was arguing in Defendant's room. As one officer raised his hand to knock on the door, a gunshot was fired from inside the room, through the door. Understandably surprised and concerned for their safety, the three police officers quickly retreated a few paces and took up positions behind the walls enclosing the vestibule outside Defendant's room. The police radioed that shots had been fired and from that point on, they kept the door to Defendant's room in constant sight.
Within a very few minutes after the "shots fired" call, police officers began arriving in waves. One of the original officers and one of the later-arriving officers positioned themselves outside the hotel where they could watch the window to Defendant's third floor room. Those officers observed a small refrigerator come through the window and then they saw Defendant lean outside. At police gunpoint from the street, Defendant was forced back into his room. Then, after a brief standoff with the officers in the corridor, Defendant left the room, unarmed, and he surrendered peacefully. He was taken into custody immediately, handcuffed and removed from the hotel.
Because Defendant was hysterical, he was taken to the hospital emergency room. There, he insisted that someone was pointing a gun at him through a hole in the examining room's suspended ceiling. He also admitted using cocaine and he largely was out of control. But as presented above, Defendant's mental health evaluations do not support a mental illness defense.
As soon as Defendant left the hotel room, the police entered looking for the other people they thought might be there and for the deadly weapon that was used to fire the shot through the hotel room door. As discussed below, during a lengthy pretrial suppression hearing, an officer testified that the police entered Defendant's hotel room immediately in order to make certain that no one else was present, especially someone who might have been injured. The police also were concerned about the deadly weapon. Specifically, the officer who found the handgun testified:
Well, during all this was going on, he, the Defendant, broke out a window. At this point, we had not located the gun. My concern was when he broke out the window, he threw the gun outside. Now it had access to civilians on the street and would not be safe.
When the police entered the hotel room, no one else was there. The police, however, immediately observed spent shell casings and drug paraphernalia in plain view. They also saw a chair with something hanging underneath it. An officer felt under the chair and discovered a handgun. The officer testified:
I went to the window and looked down on the street . . . As I turned, I saw that a piece of seat underlining was tore out, which was hanging, protruding a good amount of way. I reached in and felt this heavy object. The weapon was placed in there.
Everyone agrees that the weapon's discovery was the product of a warrantless search by the police. Taking no chances, the police nevertheless secured the area and they obtained a search warrant from Justice of the Peace Court 18. The search warrant authorized the police to search the hotel room and seize evidence, including a handgun.
II.
Defendant was indicted on December 21, 1998. His trial was delayed for several reasons, most of which are attributable to the defense. Part of the delay was caused by the time it took to obtain Defendant's initial mental health evaluation. Most of the delay, however, was caused by Defendant's having been represented by five different attorneys before he finally demanded to represent himself. At various times before trial, Defendant was represented by the Public Defender, by court-appointed "conflict counsel" and by privately retained counsel.
See Section I, supra.
After Defendant insisted on self-representation, on June 14, 2000 the Court held a hearing. At length and with counsel present, the Court and Defendant discussed Defendant's desire to represent himself. The Court reviewed Defendant's background, the seriousness of the charges and the potential sentence. The Court outlined other potential consequences of Defendant's self-representation and the Court offered reasons why self-representation was a bad idea. For example, the Court pointed out to Defendant his ability to marshal witnesses would be impaired because he was in prison. For another example, the Court warned Defendant that his interrogation of witnesses at trial could easily become confrontational and that would put him in an unfavorable light in front of the jury.
As mentioned at the outset, above, Defendant adamantly insisted that he would represent himself. There appears to have been nothing that the Court could have said to dissuade Defendant. It also was apparent that Defendant would not cooperate with any attorney, court-appointed or otherwise. Accordingly, the Court allowed Defendant's fifth defense attorney to withdraw and the Court granted Defendant's application to proceed pro se.
Now, Defendant insists that he should have had stand-by counsel. The short answer to that claim is that the Court does not recall Defendant's ever having asked for stand-by counsel. If the Court's recollection is correct, then in effect, Defendant contends that after he insisted on representing himself, the Court was obliged on its own initiative to offer stand-by counsel. In that regard, it is well established that Defendant has no right to stand-by counsel, even though it is the appellate courts' preference.
Bass v. State, Del. Supr., No. 535. 1998, Walsh, J. (September 13, 2000) (ORDER).
On the one hand, stand-by counsel may be helpful to a defendant and to the Court by, for example, answering Defendant's questions, providing procedural guidance and, perhaps, doing Defendant's "legwork." Moreover, standby counsel's presence lends a superficial appearance of respect for Defendant's procedural rights. On the other hand, in truth, stand-by counsel adds little to a trial's actual fairness. The fundamental problems caused by self-representation hardly are cured by stand-by counsel. At times, stand-by counsel can even add to the confusion caused by self-representation and otherwise do more harm than good. Moreover, the easy availability of stand-by counsel, on-demand, encourages defendants in the highly misleading and seriously mistaken belief that they can have the best of both worlds. Legal do-it-yourselfers rarely understand what they are getting themselves into, yet they are lulled by the illusion that stand-by counsel will keep them away from danger, while they "call the shots." Stand-by counsel is an irresistible temptation to defendants with personalities like Defendant's. And incidentally, stand-by counsel on-demand also seriously undercuts the stature of court-appointed counsel, including the Public Defender.
See e.g. Snowden v. State, Del. Supr., 672 A.2d 1017 (1996) (New trial ordered due to errors caused by confusion over standby counsel's role at trial.)
In reality, no matter how diligent, stand-by counsel cannot protect a defendant from the fundamental problems posed by self-representation. For example, the Court has never seen a defendant cross-examine a victim effectively. To the contrary, with or without even potentially effective cross-examination of victims always seems confrontational and that always undermines its effectiveness. Stand-by counsel's presence and assistance simply cannot off-set the many insurmountable problems caused by self-representation. The false reassurance of stand-by counsel undermines the intelligence and knowingness of waivers of real trial counsel, because the defendants who need stand-by counsel in the first place cannot appreciate stand-by counsel's limitations, no matter what.
In this case, even if he had requested it, the Court would not have appointed stand-by counsel. First, the Court seriously questions whether stand-by counsel would have made any difference, except to smooth some logistical wrinkles. For example, the Court repeatedly tried to dissuade Defendant, a convicted felon, from putting his character into evidence at trial. Even in the face of the Court's rulings, entreaties and admonitions, Defendant persisted. If Defendant was unmoved by the Court, how can one assume that stand-by counsel would have been more convincing? In that regard, it should be remembered that Defendant and five separate attorneys had been unable to establish a working relationship before trial. The Court's experience with Defendant at trial simply underscores Defendant's inability to take anyone's advice. Defendant points to nothing he would have done differently if he had asked for and been granted stand-by counsel.
Defendant's fundamental problem is not that he was not offered standby counsel, but that he refused to listen to any other voices except his own. Defendant's refusal to listen and his inability to work cooperatively with anyone were apparent well before his trial began. At least for this Defendant, stand-by counsel's benefits, real and reputed, would have been illusory and any logistical benefit that stand-by counsel might have provided would have been outweighed by stand-by counsel's greater shortcomings, especially the fact that Defendant would not have listened to stand-by counsel when he needed advice the most.
III.
Shortly after Defendant took control of his defense, he filed motions to dismiss based on speedy trial grounds and to suppress the search of his hotel room and the handgun's seizure. Defendant also requested subpoenas for the suppression hearing and for trial. Initially, Defendant wanted twenty-one witnesses subpoenaed for the suppression hearing and fifty witnesses subpoenaed for trial. Defendant's initial witness lists included judges, attorneys, court personnel, federal law enforcement officials, police officers, physicians and civilians. In response to Defendant's highly unusual and burdensome witness lists and his motions, the Court scheduled a series of additional pretrial hearings. The first two hearings were to review Defendant's subpoena requests and his various other pre-trial motions. Next was the suppression hearing, which spanned two days. In the course of the hearings, the Court addressed Defendant's speedy trial claim, and others.
At the hearings concerning Defendant's subpoena requests, the Court reviewed with Defendant, one-by-one, his requests for subpoenas directed toward judges, other court officials, federal law enforcement officials, physicians and his former defense attorneys. Over Defendant's repeated objection, the Court insisted on Defendant's presenting a plausible reason why the unusual and patently questionable witnesses might prove helpful. Three themes emerged that became a large part of the case from that point on.
First, the Court learned that Defendant's suppression motion was based on his belief that the police never obtained a search warrant or if they obtained one, it was by fraud. Defendant insisted that the initial, warrantless search of his hotel room was not justified by exigent circumstances because by the time they searched the room and seized the gun, the police were not in fear for their own safety. Accordingly, most of the court officers sought by Defendant were intended to establish that there was no search warrant or that any warrant was fraudulent.
Second, Defendant insisted that for some unknown reason he was the object of a grand "multi investigation" involving the Federal Bureau of Investigation, the Delaware State Police and, perhaps, other law enforcement agencies. The most bizarre aspect of Defendant's strange case is his obsessive insistence that a year after he was arrested, his cell mate, acting at the behest of law enforcement agencies and for reasons unknown, attempted to poison Defendant. The Court's approach to Defendant's fantastic and totally irrelevant claims exemplifies the Court's caution.
Prompted by the Court, an Assistant United States Attorney appeared and volunteered that there was no federal investigation involving Defendant. A Delaware State Police detective testified that the Delaware State Police was investigating someone identified by Defendant as being under investigation. The detective testified, however, that the investigation did not involve Defendant. The Court reviewed the Delaware State Police investigative file, in camera, in order to determine whether there was any support for Defendant's claim that he was a subject of the Delaware State Police investigation. The investigative file was consistent internally and it had nothing whatsoever to do with Defendant. Moreover, a physician employed by the Department of Correction's health services provider appeared and testified that he had followed-up on Defendant's fantastic claim that Defendant's cell mate had poisoned Defendant with the cell mate's prescription medicine. The evidence, which included but was not limited to a blood test, did not support Defendant's claim. Confronted in court with the test results, Defendant simply insisted that the doctor used the wrong test.
Finally in this regard, while the Court did not allow Defendant to subpoena and examine the magistrate who issued the search warrant, a knowledgeable representative of the Justice of the Peace Court appeared and testified at the suppression hearing. Her testimony was not helpful to Defendant and it tended to confirm that more witnesses also would not have been helpful.
Third, during the pretrial proceedings Defendant began to develop the claim that one or more people had obtained a pass key to his hotel room. Defendant implied that they were responsible for the shooting. According to Defendant, he was the innocent victim of drug dealers. In support of his defense, Defendant attempted to obtain a video tape from a surveillance camera at the hotel's front desk. While Defendant consistently maintains that the Court did not do enough to ferret out his evidence, the Court took substantial steps, including subpoenaing and resubpoenaing witnesses in order to obtain the surveillance tape. At trial, the hotel's manager testified that he turned the tape over to unknown police officers on the night of the incident. The manager's testimony was corroborated by the front desk clerk. While the manager could not remember to whom he gave the surveillance tape, he had two police officer's business cards, the shift commander and one of his sergeants. They both testified that they never received the tape. Defendant questioned several other police officers about the tape and no one remembered receiving it from the hotel employees or from anyone else.
Because Defendant adamantly claimed that the surveillance tape would prove his innocense, learning its fate and contents almost became a cause. Even after trial, based on Defendant's insistence that one of his former lawyers had viewed the tape, the Court called for a submission from the attorney. She responded, but she added nothing helpful to Defendant. To the limited extent the lawyer recalled the tape, her recollections were cumulative. Despite her post-trial submission, Defendant still insists that his former attorney's testimony would have been exculpatory in some unspecified way. Similarly, Defendant seemingly ignores the pretrial testimony of an investigator from the Public Defender's office.
The Court did not satisfy Defendant's every demand for subpoenas. Even so, the Court almost turned the courthouse upside down. At one point, the Sheriff's constables were running in circles serving and reserving the subpoenas that the Court authorized at Defendant's behest. While Defendant places huge emphasis on the importance of the relatively few witnesses that the Court did not allow him to subpoena, the many witnesses who appeared never panned out. In hindsight, after the pre-trial hearings and the trial, it is clear that Defendant's sweeping subpoena requests simply were desperate flailing.
A.
With respect to Defendant's Motion to Dismiss based on speedy trial grounds, the Court not only considered the source of the delay, the Court also considered Defendant's claims that he suffered prejudice while this trial was delayed. Specifically, Defendant claimed that two witnesses, his mother and a friend, passed away while he awaited trial. Defendant never established clearly how those witnesses might have been helpful. More importantly, their deaths came toward the beginning of the interval between arrest and trial. Even if the trial had occurred without delay, they would not have been available. Moreover, as discussed on the record and presented above, the delay in bringing this case to trial primarily was attributable to the defense.
B.
With respect to Defendant's suppression motion, the Court found that the warrantless search of Defendant's hotel room was reasonable under the circumstances. After the police heard what they thought was arguing in the hotel room and after a shot was fired through the door, they would have been remiss in not entering the room to be certain that no one else was there, and possibly injured.
In this case, which involved the obvious presence of a firearm, the police were entirely justified in trying to locate the weapon as soon as possible. That is especially so, considering that Defendant had thrown a refrigerator through the hotel window and it was possible, as the police feared, that he also had thrown a handgun onto the city street. The police did not have to secure the room, cordon-off the street and wait for a warrant before reaching under the suspicious chair.
As the Court explained on the record, no warrant was necessary to search the hotel room for the handgun and when the police found it, there was no additional need for a search warrant in order to seize what the police already lawfully had. The police behaved reasonably. That is particularly true considering the fact that based on his behavior in the hotel room, which by his admission included his own 911 call, Defendant had no reasonable expectation that the police would not barge in.
Cook v. State, Del. Supr., 374 A.2d 264 (1977) ("Inevitable discovery" adopted in Delaware); Martin v. State, Del. Supr., 433 A.2d 1025, 1032 (1981) (Admission of handguns found during illegal search of motel room approved under "inevitable discovery."); see also United States v. Daly, 937 F. Supp. 401, 409 E.D. Pa. (1996).
Moreover, with respect to the search, it is apparent that the police did obtain a search warrant and the firearm's seizure was justified on that basis. Even if there were a technical defect in the warrant, which there was not, applying the exclusionary rule in this case would serve no purpose. Finally, the Court observes that by allowing Defendant to challenge the search warrant as he did, the Court largely ignored its own Criminal Rule 41 and the threshold requirements clearly set out in Franks.
Franks v. State, Del. Supr., 398 A.2d 783 (1979).
C.
With respect to the missing surveillance tape, despite the hotel employees' testimony, it is not entirely clear, that a surveillance tape ever was turned over to the police. More importantly, it is unproven that viewing that surveillance tape could have shed any light on Defendant's purported defense. First, no one testified about the camera's actual field of view. Second, the hotel employees testified that no unauthorized person obtained a key to Defendant's room and they did not observe any suspicious activity in the hotel. Defendant dismisses that testimony as dishonest and motivated by the employees' desire to protect themselves and their employer from civil liability. Defendant has not explainedwhy, if the employees were trying cover up what happened at the front desk, they turned over the self-incriminating tape in the first place. The Court does not accept Defendant's suspicions. The Court believes the hotel employees.
Having heard the testimony from the police, from Defendant's friends who arrived at the hotel at about the same time as the police and from the available hotel employees, the Court is convinced that in terms of his interests, the best thing about the missing surveillance tape is the fact that it turned up missing. In other words, most likely the tape would have undermined Defendant's claims. Nevertheless, stretching Deberry and Lolly to the breaking point, the Court gave a "missing evidence" jury instruction. Defendant is overreaching when he claims that he was entitled to more than the Deberry/Lolly instruction.
Deberry v. State, Del. Supr., 457 A.2d 744 (1983).
Lolly v. State, Del. Supr., 611 A.2d 956 (1996).
V.
At trial, the Court made many rulings. Two of them in particular became sore points. First, the Court allowed the State to introduce records concerning Defendant's prior conviction for Assault First Degree. That conviction, however, was a predicate for a count in the indictment charging Defendant with Possession of a Firearm By A Person Prohibited. Prior conviction of a felony is an element of the crime. Before allowing the State to put Defendant's prior conviction before the jury, the Court gave Defendant an opportunity to minimize any prejudice by conceding that he is a convicted felon. Defendant demanded that the State be put to its proof. So the conviction came in.
During the trial and during its jury instructions, the Court gave the jury a proper 404(b) instruction. The Court clearly recalls that when the Court first gave its special instruction to the effect that the jury simply was being called upon to decide whether the State had proved that Defendant had committed certain acts and not whether he was a good or bad person, several jurors nodded approvingly or otherwise unmistakably demonstrated by body language that they clearly understood the Court's point. The jury's attentive and respectful behavior throughout the trial leaves little doubt that the jury's attention was focused properly on the issues. It is also worth mention that Defendant's concern about prejudice is undermined by Defendant's decision to place his good character into evidence. This, despite his prior convictions for several felonies. And the State's case was overwhelming.
Compare, Milligan v. State, Del. Supr., ___ A.2d ___ No. 98, 1999, per curiam, (July 24, 2000).
Getz v. State, Del. Supr., 538 A.2d 726 (1988).
The other sticking point that developed at trial does not directly implicate an evidentiary ruling. Nevertheless, it consumed considerable trial time. Defendant obtained a hotel record that referred not only to Defendant's room as a "crime scene," but also referred to a second, nearby room as another "crime scene." Defendant questioned every police officer repeatedly about what constitutes a "crime scene" or whether there was more than one "crime scene" at the hotel. This, despite the fact that the police had nothing to do with the hotel record and its creation. Apparently, Defendant was trying to imply that the other hotel room was where the drug dealers were. The hotel manager, however, testified credibly that he was the one who created the hotel record and he characterized the other hotel room as a crime scene. He saw it that way because the bullet fired by Defendant lodged in the other room's doorjamb and its carpet was damaged, as well. The second "crime scene" simply was a red herring.
VI.
Having heard the testimony from police officers and civilians alike, from the State's witnesses and from Defendant's own witnesses, there is no reason to doubt that Defendant was by himself in the hotel room. Similarly, there is no reasonable doubt that he fired the shot through the hotel room door. The fact, which Defendant emphasizes obsessively, no one saw him fire the shot, does not outweigh the evidence establishing that he was the only person in the room when the shot was fired. To be sure, there is some circumstantial evidence that slightly supports the claim that the police did not arrive until after the shot was fired. The overwhelming weight of the evidence on that point, however, is in the other direction.
After changes of heart, Defendant chose not to testify at trial.
Under the circumstances, therefore, there is no reasonable doubt that Defendant's firing a large caliber handgun bullet through a hotel room door after Defendant had summoned police to his room amounted to a reckless act that was likely to result in death. That being so, there also is no reasonable doubt that Defendant possessed a firearm while he committed a felony, Reckless Endangering First Degree, and that he was in possession of a firearm after having been convicted previously for a felony. Furthermore, his throwing the refrigerator through the window and damaging a car with it amounts to criminal mischief. If Defendant truly believes that others were involved in this incident, that probably is a product of his mental condition and his voluntary intoxication with cocaine.
In conclusion, considering Defendant's approach to this litigation, a perfect trial was not possible. Nevertheless, the Court went to considerable length to get to the bottom of Defendant's claims. The Court did not respond to every demand made by Defendant. The Court placed reasonable limits on who Defendant could call as a witness. Similarly, the Court screened Defendant's wild claims for relevance. Even so, the pre-trial proceedings and trial took twice as long as they should have. The Court is satisfied that if Defendant did not get everything he wanted, he got everything for which he was able to demonstrate a need. And then he received a little more. If the proceedings were not perfect, at least they were fair.
VII.
For the foregoing reasons, Defendant's Motion for a New Trial is DENIED. Defendant also has filed a request for a transcript. At this point, the Court sees no reason for one. Presumably, Defendant will file a timely appeal and he is likely to receive a transcript at that point. Accordingly, for now, Defendant's request for a transcript is DENIED.
IT IS SO ORDERED.