Boatson v. State

• Decision Date: 15 October 1982
• Citation: 457 A.2d 738
• Parties: Ballard BOATSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 738

457 A.2d 738

Ballard BOATSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: Oct. 15, 1982.

Decided: Feb. 7, 1983.

Upon appeal from the Superior Court. Affirmed.

Edward C. Pankowski, Jr. (argued), Asst. Public Defender, Wilmington, for defendant below, appellant.

John A. Parkins, Jr. (argued) and Robert H. Richter, Deputy Attys. Gen., Wilmington, for plaintiff below, appellee.

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

HERRMANN, Chief Justice:

The defendant seeks reversal of his conviction for Murder in the First Degree [11 Del.C. § 636(a)(1) ] ¹ on the grounds that the Trial Court committed reversible error (1) in refusing to grant a mistrial after the State, in its opening statement, referred to the bifurcated nature of the trial, and the Court commented thereon; (2) in refusing to grant a mistrial after the State, during its summation, inaccurately recounted a statement by the defendant; and (3) in giving the jury a coercive supplemental charge.

I.

The defendant, Ballard Boatson, was charged with the murder of Gilbert Nichols. At trial before a jury, the State's evidence established the following facts: At approximately 4:00 p.m. on June 10, 1981, the defendant was released from a detoxification center where he had spent the previous night. After making several stops, he returned to his Wilmington residence at approximately 6:00 p.m. Sylvester Johnson, another resident of the house and an eyewitness to the crime later committed, was present at the house when the defendant arrived. The defendant left shortly thereafter to purchase, and later consume, one half pint of whiskey and a six-pack of beer. ²

Shortly before 11:00 p.m., the defendant approached three of his neighbors, asking each of them for a steel pipe. He told two of them that he wanted the pipe to kill Nichols. He told the third that he wanted to kill the victim because Nichols was criticizing the defendant's mother. All three refused his request.

Shortly thereafter, Johnson was in the front living room area of the house when the defendant entered with a steel pipe. The victim, another resident of the house, was asleep in his bed in the adjacent dining room area. The defendant entered the victim's room and struck him twice with the pipe while he slept. Cause of death was established as severe cerebral and cranial injuries caused by the pipe. The defendant subsequently swung at Johnson with the pipe, stating "You're next." Johnson deflected the pipe with a crow bar, in the process hitting the defendant in the head. The defendant then went out to the sidewalk and broke out windows of the house.

The jury found the defendant guilty as charged. He was sentenced to life imprisonment without probation or parole.

We discuss seriatim the grounds of appeal, supplying additional facts as necessary. We affirm.

II.

In the State's opening statement, the prosecutor referred to the bifurcated nature of the trial as provided in 11 Del.C. § 4209. ³ In substance, he informed the jury that if it found the defendant guilty of Murder in the First Degree, a second hearing would be held to determine the appropriate penalty. The defendant requested a mistrial on the ground that the State's reference to the penalty phase would prompt jurors to return a verdict of guilty, with the understanding that they could later "adjust" the verdict by imposing a lenient sentence. The Court denied the request, finding that the comments followed settled Delaware law and practice, and that no prejudice resulted therefrom.

The defendant contends that the references by the prosecutor and the Court to the § 4209 bifurcated trial procedure resulted in the jury's improper consideration of issues not related to the defendant's guilt or innocence, in violation of the rule of Smith v. State, Del.Supr., 317 A.2d 20 (1974), and, therefore, vitiated the verdict. We disagree.

In Smith, supra, this Court held that, where appropriate, it should be made clear to the jury that it is not within the scope of its duty to consider and attempt to evaluate the possibility of post-conviction remedies, i.e., pardon, parole or probation. 317 A.2d at 25-26; accord, Hand v. State, Del.Supr., 354 A.2d 140 (1976) (possible disposition of defendant as result of insanity finding not to be considered by jury). The Smith rationale is two-fold: first, knowledge on the part of the jury that governmental authorities may review the case may cause the jury to avoid its responsibility and compromise on the question of guilt; second, a jury relying on the possibility of what it considers to be post-conviction clemency may compensate by dealing with the case more severely. 317 A.2d at 25-26.

Although Smith involved references to possible post-conviction remedies while we are concerned here with drawing the jury's attention to the penalty phase of a first-degree murder trial, the Smith rationale and rule is apposite here. The State argues that neither the prosecutor's nor the Court's remarks were improper or prejudicial because the jury had been informed, at the array, of the possibility of a penalty hearing. But this is not an adequate response.

In our statutory bifurcated capital case procedure, in sharp contradistinction to noncapital cases, the jury's knowledge of its involvement in the possible penalty is an inherently necessary, although narrowly circumscribed, circumstance. See, e.g., Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); 11 Del.C. § 3301; Hooks v. State, Del.Supr., 416 A.2d 189 (1980).

Because the concerns of this Court in Smith, i.e., possible jury speculation and verdict "adjustment," are of special significance in a first-degree murder case in which the possible penalties are death or mandatory life imprisonment without probation or parole, it is important that the jury's attention not be unduly focused on the penalty stage before or during the guilt/innocence phase. Improper focus upon the penalty hearing during the array, in the opening statement, and later by the Court could constitute undue and prejudicial focus. As this Court stated in Smith, supra:

"When confronted with [a question from the jury not related to the determination of innocence or guilt], the Court should instruct the jury that its duty is to decide guilt or innocence only ...; in no circumstance should the jury concern itself with what may occur after verdict."

317 A.2d at 26. In the instant case, the Trial Court instructed the jury that:

"... [T]here will be a separate hearing, after which you will be instructed on the applicable considerations and will be called upon to render a verdict of recommendation concerning punishment. However, you should render your verdict at this stage on the issue of guilt or innocence of the defendant of any of the charges based on your finding of the facts and applying the elements required for the crime and not upon consideration of possible punishment." (Emphasis supplied).

Clearly, the Court fulfilled the affirmative duty imposed by Smith. The prosecutor, in his opening, stated the following:

"And the first part of this trial, as you heard when you were being selected for jury duty, involves your determining basically one question. Did the defendant commit murder in the first degree? If your answer to that question is, 'Yes,' there will be a second proceeding which will involve penalty. But that's not in front of you right now. All you are going to be asked to do at first is to listen to all of the evidence and decide if the defendant is guilty of murder in the first degree." (Emphasis supplied)

Thus, the prosecutor himself included the admonition required by Smith.

In sum, the Smith standard was not violated here.

III.

At trial, a police detective testified that when he arrived at the crime scene, he heard the defendant say, "I hit him with the pipe. I hope he dies. If I spend fifty years in jail, it's okay. I don't care." The prosecutor, in his summation, recounted the defendant's statement to the jury as follows: "He is essentially in the street screaming, 'I killed a man. If he ain't dead, get me another pipe. I don't care if I spend fifty years in jail.' " The defendant requested a mistrial on the ground that the prosecutor improperly introduced prejudicial statements that were neither in evidence nor ever made by the defendant. The Court denied the motion; instead, it immediately instructed the jury that it should disregard the comment. ⁴

As to the defendant's contention that the Trial Court abused its discretion in refusing to declare a mistrial: The defendant relies upon McCarthy v. State, Del.Supr., 372 A.2d 180 (1977), wherein this Court held that in order to secure a reversal based on an opening statement of the prosecutor, the accused is required to establish either bad faith on the part of the prosecutor or actual prejudice to the defendant's case. Id. at 185. According to the defendant, the prosecutor's statement manifested bad faith and resulted in actual prejudice to the defendant.

When questioned by the Court regarding the accuracy of his comments, the prosecutor responded:

"I can't really honestly discount the possibility that it wasn't something that was said at the suppression hearing or perhaps not said at all. All I can say is that [the detective] and I both thought that this is what [the detective] had said when he had testified towards the very beginning of the trial."

The defendant asserts that the response manifested a reckless disregard for accuracy tantamount to bad faith.

Actual prejudice, the defendant contends, resulted from the misstatement because the prosecutor's version tended to establish the gravamen of the offense charged, i.e., the intent to commit Murder in the First Degree, while the statement as originally recounted at trial by the detective did not establish the requisite intent. The detective's version, the...