Bailey v. State

• Decision Date: 16 December 1986
• Citation: 521 A.2d 1069
• Parties: Coy E. BAILEY, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 1069

521 A.2d 1069

Coy E. BAILEY, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: Dec. 16, 1986.

Decided: March 3, 1987.

Upon appeal from the Superior Court. Affirmed.

Anthony A. Figliola, Jr., Wilmington, for appellant.

Loren C. Meyers (argued), Timothy J. Donovan, Jr., Deputy Atty. Gen., Wilmington, Richard E. Fairbanks, Jr., Chief of Appeals Div., Wilmington, for appellee.

Before, MOORE, WALSH and HOLLAND, JJ.

HOLLAND, Justice:

In July 1980, the defendant, Coy Edward Bailey, Jr., was initially convicted of murder in the first degree and possession of a deadly weapon during the commission of a felony by a jury in the Superior Court, Kent County. ¹ On appeal, this Court reversed the 1980 convictions and remanded the case to the Superior Court for a new trial. Bailey v. State, Del.Supr., 440 A.2d 997 (1982). The defendant's second trial, in October 1983, once again took place in Kent County. During the defendant's second trial, three of the State's witnesses made references to the defendant's first trial. The third witness also referred to Bailey's conviction. Following the third reference to Bailey's 1980 trial and the resulting conviction, the Superior Court Judge declared a mistrial sua sponte. Bailey's third trial in Kent County began on September 10, 1984. The 1984 jury was unable to arrive at a unanimous verdict at the conclusion of the presentation of the evidence. A mistrial was declared once again. On October 18, 1984, the defendant's motion for a change of venue was granted. Bailey's fourth trial began on April 1, 1985 in New Castle County. In April 1985, Bailey was convicted of murder in the first degree and an associated weapon's offense. Bailey was sentenced to life imprisonment without the benefit of probation or parole for murder and also received a consecutive fifteen year prison term for the weapon's offense. The defendant now appeals those convictions following his fourth trial.

The prior opinion of this Court states the facts surrounding the alleged crime at length. Bailey v. State, Del.Supr. 440 A.2d 997 (1982). We will only repeat the basic facts here. Even though the evidence at the fourth trial was not identical to the evidence in the prior trials, the contentions of the parties remained substantially the same with respect to the crime itself. The defendant was convicted of intentionally shooting Frank Dukes to death on June 10, 1978 at a makeshift firing range. Present with Bailey at the scene of the shooting was Michael Sponaugle, the State's chief witness. According to Sponaugle, he, the defendant, and the victim were engaged in shooting empty glass bottles off of a log behind the residence of Sponaugle's parents. Sponaugle asserts that as Dukes was setting up additional bottles on the log, Bailey intentionally shot Dukes with a .44 revolver. Immediately following the incident, Sponaugle claims that he returned to his parents' house and heard a second shot emanating from the shooting scene. Sponaugle's testimony is hotly disputed by Bailey, who presents a dramatically different version of the events. According to Bailey, it was Sponaugle who shot the victim twice, once from some distance and again in the back of the head as he lay wounded near the log. Similarly, there is disagreement as to what transpired after the shooting.

Bailey appeals from his 1985 conviction on numerous grounds. He contends through his attorney that: 1) jeopardy attached during his second trial and his retrial in 1985 was barred by the double jeopardy provisions of the United States and Delaware Constitutions; 2) he was denied a speedy trial contrary to his rights under the United States and Delaware Constitutions; 3) State interference with communication between the defendant and his counsel violated his right to effective assistance of counsel as guaranteed by the United States and Delaware Constitutions; 4) the State's failure to preserve evidence violated the defendant's State and Federal rights to due process; and 5) the trial Court erred in not instructing the jury on a charge of second degree murder.

In an order dated September 17, 1986, this Court permitted Bailey to supplement his attorney's opening brief with arguments

made by Bailey in an affidavit, with attachments, accepted by this Court as a pro se "Supplemental Brief" but subject to the limitation that this Court would only consider for review on appeal those questions raised by the defendant pro se in the papers filed which were fairly presented to the trial Court and only to the extent that the defendant's substantive argument and position on such questions is clearly discernable from the papers filed. Bailey v. State, Del.Supr. No. 324, 1985 (September 17, 1986) (Horsey, J.) (Order). In his "Supplemental Brief," the defendant addresses two issues raised by his attorney in the appellant's opening brief, i.e., the double jeopardy and speedy trial contentions. Bailey's pro se submission also identifies three additional issues: 1) that the State did not disclose that Sponaugle had been given immunity from prosecution before testifying and did not disclose the contents of the testimony at the hearing when immunity was originally granted to Sponaugle; 2) that the 1985 jury was not instructed about the grant of immunity to Sponaugle although such an instruction had been given at Bailey's 1980 trial; and 3) that the attorneys representing Bailey in the 1985 trial were ineffective. The defendant raises several other issues but those matters are most fairly categorized as specific examples of the ineffectiveness of his 1985 trial counsel, e.g. failure to file various motions, failure to raise an objection to the arrest warrant and improperly filing "old" motions. We will consider all issues that have been properly raised by Bailey and his attorney.

DOUBLE JEOPARDY

The defendant's first argument is that the prosecution intentionally elicited a remark by a state witness which prompted the trial court to declare a mistrial sua sponte, during the course of the defendant's second trial in 1983. Bailey contends that any subsequent trial was barred by his State and Federal Constitutional right to be free from being placed in jeopardy more than once for the same crime. To put this contention by the defendant into proper perspective, the facts and circumstances which led the trial Court to declare the mistrial must be reviewed.

During the defendant's retrial in October 1983, three witnesses referred to his first trial and the third witness to do so also referred to Bailey's prior conviction. The first of the three witnesses to make such a reference was Patricia Bailey, a prosecution witness and the defendant's former wife. She had testified at the 1980 trial. During her cross-examination by the defense counsel in the 1983 trial, she was questioned about statements she had made at "a prior proceeding" and asked if she had testified under oath. She responded, "Do you mean the last trial?" Neither the defense counsel or the prosecutor asked for any corrective action from the judge.

On the next trial day, Jerry Price, a friend of the defendant, testified for the prosecution. Price stated that after he had learned of the defendant's arrest and imprisonment, he had visited the defendant several times. Price testified that Bailey told him of his desire to have Sponaugle, the chief prosecution witness, killed. During the cross-examination of Price, defense counsel asked Price when the defendant had first solicited his help in eliminating Sponaugle. Bailey's counsel then asked Price about the timing of his disclosure to police of these conversations with the defendant:

Q. When is the first time you ever communicated these alleged conversations to the authorities?

A. When?

Q. Yes.

A. It was when this first trial, these new proceedings started, two, three months ago maybe.

At that point, the jury was taken out of the courtroom. Defense counsel argued the need for a mistrial, or, at a minimum, cautionary instructions to the jury. The prosecutor stated that Price had been told not to mention the first trial. The prosecutor also pointed out that the defense counsel had, in the cross-examination of Patricia Bailey The prosecution's next witness was Gary Lee Hastings. Hastings had been incarcerated with the defendant at Delaware Correctional Center in late 1981 and early 1982. The prosecution argues that it was attempting to establish, through Hastings' account of his conversations with Bailey, the latter's intent to sabotage his murder prosecution through Sponaugle's murder when the following exchange took place:

                received a similar response. 2  The trial judge indicated his willingness to give the jury a cautionary instruction or to conduct voir dire into the jury's knowledge of the previous trial. 3  However, the trial judge also advised defense counsel that doing so would necessarily compound the problem since the jury, in the process, would implicitly learn that there had been a previous trial.  The defense counsel responded by renewing his motion for a mistrial.  That request was denied.  No cautionary instruction was given to the jury. 4
                

Q. Did you discuss with Mr. Bailey in addition to the contract the charges for which you were in jail?

A. Yes, ma'am, we had discussed that.

Q. Did you discuss the charges for which he was in jail?

A. No, ma'am. it was common knowledge to the institution what Mr. Bailey was doing time for: a life sentence for murder.

Immediately following this answer, the trial court stopped the proceedings and the jury was taken out of the courtroom. The following exchange then occurred:

THE COURT: We have almost two weeks involved in it, but I think that about locks it up.

MS. BRADY [prosecutor]: I think it does, Your Honor.

THE COURT: A mistrial is declared. The case will be rescheduled for trial at a later date. We will stand in recess.

Defe...