Bailey v. State

• Decision Date: 30 September 1980
• Parties: John H. BAILEY, Appellant, v. STATE of Delaware, Appellee.
• Court: United States State Supreme Court of Delaware

Page 956

422 A.2d 956

John H. BAILEY, Appellant, v. STATE of Delaware, Appellee.

Supreme Court of Delaware.

Submitted Nov. 16, 1979.

Decided July 2, 1980.

Opinion July 17, 1980.

Supplemental Opinion Sept. 30, 1980.

Walter S. Rowland (argued), Wilmington, for appellant.

Francis A. Reardon, Deputy Atty. Gen. (argued), Wilmington, for appellee.

Before DUFFY, McNEILLY and HORSEY, JJ.

HORSEY, Justice.

Defendant, John H. Bailey, appeals Superior Court's denial of his Rule 35(a) motion for postconviction relief as to his convictions in December, 1975 of manslaughter and possession of a deadly weapon during the commission of a felony (the manslaughter). Defendant was sentenced on February 5, 1976 to imprisonment for 30 years for the manslaughter and 10 years for the felony-weapon offense, the sentences to run consecutively.

Two issues are raised by this appeal: (1) whether defendant was denied his Sixth Amendment right of access to counsel when the Trial Judge instructed defendant upon leaving the witness stand not to discuss his "testimony with anybody" during an overnight recess of the trial; and (2) whether defendant was subjected to double jeopardy

in violation of his Fifth Amendment right through the imposition of consecutive sentences for manslaughter and possession of a deadly weapon during the commission of the felony when both offenses arose out of the same transaction. ¹

I

The convictions stemmed from the shooting of Sheila Ferrell, a 12 year old girl, which occurred in Wilmington, Delaware on August 17, 1975 within a block of defendant's house and hers. Enraged in the belief that the victim and other children had stolen furniture from his house and fruit from a tree in his backyard, defendant chased the victim and her companions down the street from his house and in the chase the victim was shot in the back and subsequently died. Five eyewitnesses testified that defendant had shot the victim after she ignored a command to stop and a warning shot. Though he fled the scene and was later found hiding in the attic above his garage, Bailey denied shooting the girl, stating that some unknown third person was responsible. ²

Indicted for murder in the first degree and for possession of a deadly weapon during the commission of a felony, defendant was convicted, after trial by jury, of manslaughter and the felony-weapon charge, for which he was sentenced, as previously stated, to consecutive prison terms for each offense.

Thereafter, defendant filed a motion for new trial, which was denied, State v. Bailey, Del.Supr., 352 A.2d 415 (1976); and defendant's convictions were later affirmed by this Court on defendant's direct appeal. Bailey v. State, Del.Supr., 363 A.2d 312 (1976). ³ An appeal filed in the United States Supreme Court was withdrawn; and a writ of certiorari was later filed and denied February 2, 1977. 429 U.S. 1072, 97 S.Ct. 809, 50 L.Ed.2d 790 (1977).

The denial of counsel question was raised for the first time with the filing on January 17, 1979 in the Superior Court of defendant's pending motion under Rule 35 for postconviction relief. ⁴ On May 17, 1979 the Superior Court denied defendant's motion, after which defendant docketed this appeal. The double jeopardy question now presented was first raised by defendant on June 30, 1978 in a petition for writ of habeas corpus filed in the United States District Court for the District of Delaware. Because this issue had not been raised previously in our State courts, action in the federal court was stayed pending exhaustion of State remedies. Bailey v. Redman, D.Del., C.A.No. 78-277 (October 11, 1978).

II

We take up first defendant's Sixth Amendment claim of denial of access to counsel.

The facts pertinent to this claim are as follows. In the third week of defendant's four week trial defendant took the stand on December 9, 1975 in his own defense. He proceeded to testify on direct examination for somewhat over two hours and until time for the luncheon recess. After lunch, defendant resumed his testimony on direct examination and completed it about mid-afternoon. The State then immediately began its cross-examination of defendant "Mr. Bailey, during the evening recess, I caution you and instruct you that you are not to discuss your testimony with anybody until you have completed your testimony in this case. Do you understand?

which continued until 5:15 p. m. when the Court decided to recess the trial until the following day. Because the State had not completed its cross-examination, the Trial Judge, before recessing the Court for the evening, gave the following instruction to defendant:

"The Witness: (The witness nodded affirmatively.)"

The instruction was neither questioned nor objected to by Bailey's counsel and trial was thereupon recessed from 5:15 p. m. on December 9, 1975 until 10:00 a. m. the following day. Defendant had been in the State's custody at all times during the course of the trial and was returned to the custody of the State correctional authorities and to the State prison to spend the night.

The following day when Court reconvened, no question was raised as to the propriety of the previous afternoon's instruction nor was any objection made that the Court's ruling had interfered with defendant's access to counsel. Defendant resumed the stand; and the State completed its cross-examination of defendant that morning. ⁵ Thereafter the trial continued for another week, without any mention being made of the Court's December 9 testimonial instruction, and trial was completed on December 16, 1975 when the jury's guilty verdicts were returned.

Rejecting defendant's Sixth Amendment contention, the Motion Judge, who had also been the Trial Judge, stated that his order had not denied defendant access to counsel but had only prevented defendant from discussing his testimony with his attorney. And the Court below concluded that a testimonial limitation was permissible under current Delaware and federal Sixth Amendment decisional law. ⁶

Defendant raises three objections to the Superior Court's Rule 35 ruling. First, defendant states that the Trial Court's order may not now be construed as meaning that defendant was "free to communicate (with his attorney) about anything except his testimony" because such construction is at variance with the trial instructions and the uncontested facts on which the Rule 35 motion was heard-namely, defendant's statement that he was sequestered from any contact with his attorney during the 17-hour overnight recess. Second, defendant argues that Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) is factually indistinguishable from the case at bar and controlling. And third, defendant contends that under Jackson v. United States, D.C.App., 420 A.2d 1202 (1979) (en banc), a decision rendered after the ruling below, the rule in Geders has been extended to invalidate a testimonial as well as blanket limitation on access to counsel and interpreted to hold that any limitation on access to counsel constitutes plain error requiring reversal. Hence, the 1975 trial limitation imposed on Bailey amounted to reversible error even though counsel did not object to it, thereby entitling Bailey to a new trial, so defendant argues.

For the reasons hereafter stated, we decline to adopt Jackson's interpretation of Geders and affirm the denial of defendant's Rule 35 motion on the ground that under the facts of this case any error in the Court's instruction was harmless beyond a reasonable doubt.

A.

Taking up defendant's first argument, we cannot accept defendant's construction of the Trial Judge's ruling as imposing a blanket embargo or sequestration order upon any access of defendant to counsel during the overnight recess. The instruction was precisely and simply stated. Defendant was not to "discuss (his) testimony with anybody" until he had completed his "testimony." Defendant was clearly not told that he could not confer with counsel about anything. Counsel was not mentioned in the instruction but since the prohibition extended to "anybody", it must be construed as including counsel; and the Court below says that was its intention. Defendant now argues that he understood the instruction to mean that he should not discuss "anything" with counsel; but clearly that is not what the Trial Judge said.

Further, we do not agree with defendant that the facts were "established" to the contrary on the pleadings of the Rule 35 motion. Suffice it to say that the State in its responsive pleading referred to the Court's instruction as a bar against defendant discussing "his testimony" with anyone. ⁷

B.

We turn now to defendant's contention that the ruling in Geders controls this case. In March, 1976, three months after the trial of the instant case was concluded, the United States Supreme Court held in Geders that an embargo directing a criminal defendant not to talk to his attorney "about anything" during an overnight recess of his trial deprived defendant of his Sixth Amendment right to the assistance of counsel. The Supreme Court ruled:

"The challenged order prevented petitioner from consulting his attorney during a 17-hour overnight recess, when an accused would normally confer with counsel. We need not reach, and we do not deal with limitations imposed in other circumstances. We hold that an order preventing petitioner from consulting his counsel 'about anything' during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment." 525 U.S. at 91, 96 S.Ct. at 1337.

The Court below distinguished Geders on the ground that the Geders' order completely denied defendant access to counsel, whereas Bailey "was free to communicate (with his attorney) about anything except his testimony." The distinction has merit, particularly since the Supreme Court in Geders also had before it an original testimonial limitation...