Banther v. State

• Decision Date: 29 July 2009
• Docket Number: No. 100, 2008.,100, 2008.
• Parties: Bruce BANTHER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

977 A.2d 870

Bruce BANTHER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 100, 2008.

Supreme Court of Delaware.

Submitted: May 21, 2009.

Decided: July 29, 2009.

Court Below — Superior Court of the State of Delaware, in and for Kent County, Cr. I.D. Nos. IK97-05-0094 and IK97-05-0096.

Upon appeal from the Superior Court.

AFFIRMED.

Kevin M. Howard, Esquire, Dover, Delaware, and Edward C. Gill, Esquire (argued), Georgetown, Delaware, for appellant.

Stephen R. Welch, Jr., Esquire (argued), Stephen E. Smith, Esquire, and John

Williams, Esquire, Department of Justice, Dover, Delaware, for appellee.

Before STEELE, Chief Justice, HOLLAND and BERGER, Justices.

HOLLAND, Justice.

This is the defendant-appellant Bruce Banther's direct appeal of his 2008 convictions and sentence for Murder in the First Degree¹ and Possession of a Deadly Weapon During the Commission of a Felony.² In Banther's first jury trial, completed in October 1998, Banther was acquitted of Conspiracy in the First Degree,³ but convicted of Murder in the First Degree,⁴ Forgery in the Second Degree,⁵ and Felony Theft.⁶ On appeal, this Court reversed Banther's convictions and remanded the matter for a new trial.⁷

Before the second trial commenced, Banther pled guilty to Forgery in the Second Degree⁸ and Felony Theft.⁹ Banther's second trial necessarily precluded prosecution for Conspiracy in the First Degree¹⁰ as a result of Banther's acquittal of that charge in the first trial. When Banther's second trial concluded, the jury convicted him of Murder in the First Degree¹¹ (arguably based the State's theory of accomplice liability) and Possession of a Deadly Weapon During the Commission of a Felony.¹² On appeal, this Court reversed Banther's second conviction and remanded the matter for a third trial.¹³ We held that because the trial judge allowed the State, over Banther's objection, to prove and argue that Banther agreed with his codefendant John Schmitz to plan and aid in the murder, the trial judge failed to account for the collateral estoppel effect of the earlier conspiracy acquittal. Banther was tried for a third time in January 2008.

Banther has raised several issues in this direct appeal of his third trial. First, he argues that the trial judge's failure to properly focus the jury by giving a preliminary limiting instruction was a violation of this Court's mandate and constitutes reversible error. Second, he contends that there was no evidence in the record to support the State's theory that Banther was Schmitz's accomplice. Third, he submits the trial judge erred by permitting Schmitz to testify, because that testimony was precluded by the doctrine of judicial estoppel. Fourth, Banther claims that the State violated his due process rights "under both the Delaware and United States constitutions" by asserting a new theory of criminal responsibility—i.e., that Banther acted as a principal—at Banther's 2008 retrial. Fifth, Banther claims the trial judge erred by permitting the State to present alternative theories of Banther's criminal liability as either a principal or an accomplice. Sixth, according to Banther, the trial judge erroneously admitted four hearsay statements that violated his federal Constitutional right to confront the witnesses against him. Seventh, he argues that the State made improper closing arguments to the jury.

We have carefully considered all of Banther's claims. We have concluded that none of those claims are meritorious. Therefore, the judgments of the Superior Court must be affirmed.

Facts¹⁴

In the early morning hours of February 12, 1997, Harrington Police dispatcher Cheryl Knotts (now Cheryl Knotts-Woods) received a number of telephone calls from a person who identified himself as Dennis Ravers. The caller said that he had agreed to meet with Bruce Banther and another person, whom he referred to as "Charles," at the Harrington Moose Lodge, but that he had gotten lost and was looking for a safe, public place to meet them, as the Moose Lodge was closed. Knotts-Woods persuaded the caller, who was calling from a nearby tavern, to meet with her at the Harrington Police Department to discuss his concerns. Knotts-Woods met briefly with the caller outside the Harrington Police Station. After that meeting, the caller again contacted dispatcher Knotts-Woods and informed her that he had agreed to meet with Banther and "Charles" at the Farmington Fire Hall on Route 13.

Between 6:30 a.m. and 7 a.m. on February 12, 1997, as Tom VanVliet was on his way to work, he drove by a garage owned by Frank Kricker on Mesibov Road and noticed two small fires burning on the ground. VanVliet stopped and began to stomp out the fires. While VanVliet was stomping out the fires, Rick Pinckney, an acquaintance of Kricker's, drove by, observed VanVliet stomping out the fires and asked VanVliet if he needed help. Pinckney then drove to Kricker's home and told Kricker what he had seen.

Frank Kricker drove to his garage to investigate. When he returned after daylight, Kricker inspected the ground where the fires had been located and found a pair of eyeglasses and a set of car keys nearby. Kricker picked up the keys and eyeglasses and returned to his home, where he contacted the Delaware State Fire Marshall's Office to report what he had seen.

Deputy Fire Marshall William Sipple responded to the scene, where he observed what appeared to be blood in the areas where the fires had burned and what appeared to be body tissue on the tire and wheel of a nearby truck. Sipple reported what he had observed to the Criminal Investigation Unit at Delaware State Police Troop No. 3. Detective David Weaver, an evidence technician, was dispatched to the scene. Upon his arrival, Weaver also observed what appeared to be blood in the burned areas and body tissue on the truck's wheel and tire. Samples collected from the scene were sent to a laboratory for analysis and it was determined that they contained blood and human brain tissue.

Although the evidence collected from the crime scene led police to conclude that a homicidal assault had occurred outside Frank Kricker's garage on or about February 12, 1997, they had no leads regarding the identity of the victim or the perpetrators. At a monthly Kent County investigators meeting, a Harrington Police Detective told the other detectives about the strange phone calls dispatcher Knotts-Woods had received on the morning of February 12, 1997. The homicide detectives arranged a meeting with Knotts-Woods. When they showed her the glasses found at the crime scene, Knotts-Woods became visibly upset. She identified the glasses as those worn by the caller she met on February 12, 1997, who had identified himself as Dennis Ravers.

The detectives learned from the Dover Air Force Base Office of Special Investigations that Banther and Ravers had been seen together previously at the base. Thereafter, officers began to follow Banther's acquaintance, John Schmitz, in hopes that he would lead them to Banther. On February 25, 1997, the officers followed Schmitz to the Dover Downs Casino, where he met with Banther. Banther was driving a tan Mazda.

Detectives then followed Banther and Schmitz into Maryland, where Schmitz retrieved his Dodge Dakota pickup truck, which was parked near a small country store. The Delaware detectives continued to follow Banther and Schmitz as they traveled in separate vehicles in the direction of the Chesapeake Bay Bridge. As they approached the Kent Island area, the Delaware detectives requested assistance from the Maryland State Police.

At approximately 6:30 p.m., Deputy Michael Branham of the Queen Anne's County, Maryland, Sheriff's Department heard a radio broadcast that the Delaware State Police needed assistance in the area of Route 650 westbound in Stevensville, Maryland. Branham followed the tan Mazda across the Chesapeake Bay Bridge into Anne Arundel County, Maryland, where he stopped the vehicle for a traffic violation. At the scene of the stop, the driver of the tan Mazda produced no identification and told Branham that his name was Jeffrey Ray Eldridge. Branham searched the interior compartment of the vehicle and found a wallet containing Banther's military identification, which enabled him to identify the driver of the tan Mazda as Banther.

Between February 25, 1997, and July 30, 1997, Banther participated in seven taped interviews with Delaware State Police detectives and one taped interview with a Maryland State Police officer. Redacted tapes of seven of the interviews were played for the juries in all three of Banther's trials. Initially, two weeks after Ravers was killed, Banther told the police that, as far as he knew, Ravers was still alive and had flown to California. Later, during lengthy taped interviews on March 5 and 6, 1997, Banther admitted that Ravers was dead and said that he had been killed by a drug dealer named "Merlin Oswald."

On March 12, 1997, after leading the detectives and North Carolina authorities to Ravers' body near Godwin, North Carolina, Banther told Special Agent Timothy Thayer of the North Carolina State Bureau of Investigation that "he and a gentleman named John Schmitz had met with Mr. Ravers at a location I think in Harrington, Delaware, and an argument ensued, and that Mr. Schmitz had hit Mr. Ravers in the head with an axe." Special Agent Thayer passed this information along to the Delaware detectives, who conducted additional taped interviews with Banther on March 13 and 14, 1997.

During the March 13, 1997, interview, Banther described meeting with Schmitz and Ravers in the early morning of February 12, 1997, near Williamsville, Delaware, and then traveling with both of them to the scene of the murder on Mesibov Road. He said Schmitz and Ravers got into an argument:

And then Dennis pushed John, and they started fighting. And then, ah, I think Dennis was gonna go to his car and get his gun or something. John went...