Bailey v. State

• Decision Date: 20 January 1982
• Citation: 440 A.2d 997
• Parties: Coy E. BAILEY, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 997

440 A.2d 997

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

Supreme Court of Delaware.

Submitted Oct. 20, 1981.

Decided Jan. 20, 1982.

Upon appeal from Superior Court. Reversed and remanded.

Joseph A. Hurley (argued), Paul, Lukoff & Hurley, Wilmington, for appellant.

James E. Liguori (argued), Deputy Atty. Gen., Dover, for appellee.

Before HERRMANN, C. J., and DUFFY and McNEILLY, JJ.

McNEILLY, Justice:

Defendant, Coy Bailey, Jr., was found guilty by a Superior Court jury of Murder in the First Degree and sentenced by the Court to life imprisonment without benefit of probation or parole. He appeals on numerous grounds; however, we find it necessary to address only three of defendant's contentions: 1) that the search warrant for defendant's premises and automobile was not based upon probable cause; 2) that certain statements which defendant allegedly made at the time of his arrest, after having been given his Miranda warnings, were nevertheless improperly admitted into evidence because he did not understand his constitutional rights; and 3) that the prosecution employed improper, unprofessional and prejudicial trial tactics in reserving the bulk of its concluding comments for the rebuttal. We reverse and remand the case for a new trial.

I

The defendant was convicted of the intentional killing of Frank Dukes, whom defendant allegedly gunned down at a makeshift shooting range. Present with the defendant at the scene of the shooting was the State's chief witness, Michael Sponaugle. According to Sponaugle, he, the defendant, and the victim were engaged in shooting empty glass bottles off a log behind the residence of Sponaugle's parents. Sponaugle asserts that as the victim was setting up additional bottles on the log, defendant aimed a .44 revolver at him and fired it, striking the victim. After some discussion between Sponaugle and the defendant as to how to dispose of the body Sponaugle claims that he returned to his parents' house to make sure his parents had not observed the shooting. At that time, he claims to have heard a second shot emanating from the shooting scene.

Sponaugle's testimony is hotly disputed by defendant who contends that it was Sponaugle who shot the victim and then shot him 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. Sponaugle claims that he went to his parents' house and telephoned Corporal Tarailia of the Delaware State Police at his home to inform him that defendant had just killed Frank Dukes. Sponaugle related that he then went to defendant's house where defendant gave him a gasoline can and instructed him to buy gas for the purpose of burning the victim's body. Instead of buying the gas, Sponaugle stated that he proceeded to the police station to meet Corporal Tarailia. From the police station, Sponaugle and other police officers drove to Sponaugle's house. Defendant telephoned Sponaugle at his home asking about the gasoline, and Sponaugle suggested that defendant come over to pick it up. When defendant came over, he was thrown to the ground and handcuffed by police.

Defendant disputes this version of the events following the shooting. Defendant testified that after he returned to his house he received a telephone call from Sponaugle's father indicating that Sponaugle would be over to obtain the gasoline can which defendant had borrowed earlier. Sponaugle arrived at defendant's house and went behind it to a burning bin area where he allegedly began to burn some of the victim's personal papers. Defendant stated that Sponaugle had concealed the murder weapon in a brown paper bag under his shirt and that Sponaugle expressed a desire to clean the weapon. Defendant stated further that Sponaugle cleaned the gun and left it on a buffet in defendant's house. Sponaugle then left the house to get the gasoline. Defendant assumed that Sponaugle had put the gun back in his shirt when he left. Defendant also acknowledged that he called Sponaugle later to find out whether he had purchased the gasoline and that he drove over to Sponaugle's house where he was arrested.

A search warrant was obtained for the defendant's home, property and motor vehicles and was executed on the evening of defendant's arrest. The police found a .44 revolver with live rounds and spent casings in a brown paper bag underneath a chair cushion in defendant's living room.

II

In support of his claim that the affidavit accompanying the search warrant did not supply the probable cause necessary for the issuance of the warrant, defendant asserts that Michael Sponaugle was a police informant whose prior reliability had never been verified. Defendant concludes that Sponaugle's status as a police informant precludes the conferral of "citizen informant" status upon him, which status does not require proof of prior reliability.

We disagree. A prior basis for establishing the reliability of an informant is unnecessary in the case of an average law abiding citizen performing a civic duty by reporting a crime. Indeed, a citizen informant "is a passive observer with no connection with the underworld, and no reason to fabricate what he has seen or heard, and as such is considered presumptively reliable." Hooks v. State, Del.Supr., 416 A.2d 189, 202 (1980). See Wilson v. State, Del.Supr., 314 A.2d 905, 907-08 (1973); Warren v. State, Md.App., 29 Md.App. 560, 350 A.2d 173, 180 (1976).

Sponaugle falls into the category of "citizen informant." The record shows that he was not a member of the criminal community, but rather an individual who occasionally telephoned police to report minor incidents of which he had knowledge. Sponaugle's information about the shooting and its aftermath provided the probable cause to support the issuance of the search warrant.

Defendant concedes that an informant's tip can be corroborated externally. Garner v. State, Del.Supr., 314 A.2d 908 (1973). Such is the case here. After Sponaugle told Officer Collison of the occurrence and location of the shooting, the police officer confirmed the information by finding the victim's body at the location described by Sponaugle. Sponaugle further named defendant as the murderer, described the type of gun used and related that defendant left the Sponaugle residence with the gun to return home. When defendant later returned to the Sponaugle residence without the gun, Officer Collison reasonably concluded that the murder weapon could be located by a search of defendant's property. The affidavit, which recited all these facts, provided the probable cause required for the issuance of the search warrant and was, therefore, constitutionally sufficient. Del.Const. Art. I, § 6.

III

We also disagree with defendant's contention that statements which he uttered immediately following his arrest were improperly admitted at trial because he did not understand his constitutional rights and did not waive those rights. At his arrest, defendant was informed that he was being charged with First Degree Murder and was given his Miranda warnings orally. Five minutes later, the police read the Miranda warnings to him again. Defendant was asked whether he understood his rights, but he did not respond directly to the question. Instead, he asked to speak with an agent of the Bureau of Alcohol, Tobacco and Firearms. When the police moved defendant from the garage in which he was arrested, defendant struck up a conversation with Sponaugle within earshot of Officer Collison. In that exchange, defendant admitted that he owned the .44 revolver and that he had left it at the scene of the shooting. Officer Collison overheard this conversation and interrupted it to inquire further about the murder weapon. Defendant stated that he had obtained the gun from an individual in Wilmington, that he had shot the gun that morning at Sponaugle's house, and that he had left it on Sponaugle's truck.

The circumstances here point to an awareness by defendant of his constitutional rights and a valid waiver of those rights. Defendant did not indicate, after having been apprised twice of his constitutional rights, that he wished to remain silent or speak to an attorney. Instead, he initiated a conversation with a private citizen and continued it with a police officer. These circumstances reflect a voluntary, knowing and intelligent waiver of defendant's constitutional rights. See Edwards v. Arizona, 450 U.S. 477, 101 S.Ct. 1880, 1883-84, 68 L.Ed.2d 378 (1981); Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-2572, 61 L.Ed.2d 197 (1979); North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-1758, 60 L.Ed.2d 286 (1979); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

IV

We now turn to defendant's third argument. At the conclusion of the witnesses' testimony, the State prosecutor delivered his opening summation to the jury. The opening summation was very brief, constituting a mere 31/2 pages of the transcript and lasting only 5 minutes. The gist of the prosecutor's terse opening remarks was that, based upon the evidence, the State had proved that the defendant had intentionally killed Frank Dukes. With the exception of a passing reference to one of the witnesses, the State prosecutor did not comment on the testimony of any of the witnesses or on the circumstances surrounding defendant's arrest. At this juncture, after the State had completed its opening summation, an unreported sidebar conference was held. ¹ It is not disputed that in that conference, defendant's lawyer lodged an objection to the State's trial strategy of making introductory remarks in the opening summation and using the closing summation, not as a rebuttal, but as a vehicle to carry the thrust of its case to the jury. While the record shows that the Trial Judge admonished the State prosecutor about the propriety of such tactics,...