Butler v. State

• Decision Date: 24 June 2014
• Docket Number: No. 220,2013.,220
• Citation: 95 A.3d 21
• Parties: Lamonte BUTLER, Defendant–Below, Appellant, v. STATE of Delaware, Plaintiff–Below, Appellee.
• Court: United States State Supreme Court of Delaware

95 A.3d 21

Lamonte BUTLER, Defendant–Below, Appellant,

v.STATE of Delaware, Plaintiff–Below, Appellee.

No. 220, 2013.

Supreme Court of Delaware.

Submitted: April 23, 2014.

Decided: June 24, 2014.

Court Below: Superior Court of the State of Delaware in and for New Castle County, Case No. 1203010443.

Upon appeal from the Superior Court. REVERSED.

Nicole M. Walker, Esquire, Santino Ceccotti, Esquire (argued), Office of the Public Defender, Wilmington, Delaware for Appellant.

Karen V. Sullivan, Esquire, Department of Justice, Wilmington, Delaware for Appellee.

Before STRINE, Chief Justice, HOLLAND, BERGER, JACOBS, and RIDGELY, Justices, constituting the Court en Banc.

STRINE, Chief Justice, for the Majority:

Defendant–Below/Appellant Lamonte Butler appeals from a judgment of convictions in the Superior Court of Attempted Robbery First Degree, Assault Second Degree, Possession of a Firearm During the Commission of a Felony, Conspiracy Second Degree, Carrying a Concealed Deadly Weapon, Resisting Arrest, Possession of a Firearm by a Person Prohibited, and misdemeanor drug possession. Butler raises two claims on appeal.

First, Butler contends that his convictions are barred by the Double Jeopardy Clause ¹ because the trial judge in a prior proceeding (the “Trial Judge”) took a series of improper actions that impelled defense counsel to move for a mistrial. The standard to demonstrate a violation of Double Jeopardy rights when the defendant himself moves for a mistrial is exacting, and requires a defendant to show that the Trial Judge “acted with intent to provoke a mistrial.” ² Recognizing that, defense counsel nonetheless felt that the circumstances were so unusual that she moved to dismiss the case against Butler under that exacting standard.

Second, Butler argues that the Trial Judge abused her discretion by denying his post-trial Motion for Recusal without conducting the analysis required by Los v. Los.³ Believing that the Trial Judge had engaged in improper behavior, Butler's counsel moved to have the Trial Judge recuse herself so that the motion to dismiss could be decided on a record created before another judge. Given the Trial Judge's behavior, the State joined in the request for recusal but opposed the motion to dismiss. Rather than conduct the Los analysis to determine whether to recuse herself, the Trial Judge denied the motion to dismiss and then denied the request for recusal as moot. Butler was then forced to undergo a new trial before another jury, which began almost two months after his first trial was scheduled, and after which he was convicted.

On direct appeal, Butler claims that the Trial Judge erred, both by not recusing herself from deciding his motion to dismiss and by denying that request on its merits. Butler asks this Court to vacate his conviction because he contends that, on the record that the Trial Judge herself shaped, he has met his burden to show that the Trial Judge took actions intended to provoke defense counsel into seeking a mistrial. At the very least, Butler claims that the motion to dismiss should have been decided in the first instance on a record created before another judge, given that the State and Butler both agreed that the Trial Judge should recuse herself and the Trial Judge never engaged in the required Los analysis.

Because the Trial Judge chose to decide the motion to dismiss, we conclude that Butler is entitled to have this Court decide that motion de novo on the record that the Trial Judge herself shaped, based on factual inferences reasonably drawn from that record. Forced to make the required factual determinations ourselves on a de novo basis, the weight of the evidence leads us to conclude that: (1) the Trial Judge did not intend to preside over Butler's trial before the already empaneled jury, and (2) the Trial Judge took a series of actions intended to ensure that the trial would not take place. For these reasons, Butler's convictions must be reversed.

In so concluding, we note that this appeal presents aberrational circumstances that markedly depart from the serious priority the Superior Court gives to trying felony criminal cases. Indeed, the reality that the actions taken were so different from that normally characteristic of our Superior Court unavoidably informs our resolution of this unusual case. The outcome is regrettable, but it is dictated by the need to respect Butler's constitutional right.

I. FACTS AND PROCEDURAL HISTORY ⁴

Butler was indicted for the robbery and assault of Richard Baldwin in 2012. Because handling criminal trials in a timely manner is the highest priority of the Superior Court, a judge who was then on the civil rotation stepped up to handle Butler's trial, because all the judges on the criminal rotation had other trials scheduled. On the morning of Tuesday, December 4, 2012, that Superior Court judge oversaw the selection of a jury for Butler's trial, consisting of twelve jurors and four alternates. Although the parties agreed that three days would probably be sufficient time for the trial, the jurors were selected based on their availability for a four day trial that would end on Friday, December 7, 2012.

After the jury had been selected, the Superior Court recessed for lunch. The trial was to begin in the afternoon following the recess. During the recess, Butler's trial was reassigned to the Trial Judge, because she was on the criminal rotation and the trial that she had previously been assigned to had pled-out that morning.⁵ The Trial Judge was on the criminal rotation, so it was her responsibility to handle Butler's case. Because the Trial Judge's colleague had already selected the jury, the Trial Judge was in a position to keep the trial on schedule and start immediately on the afternoon of December 4, 2012. But that did not happen.

Instead, the Trial Judge held a conference in her chambers without a court reporter. Although a prosecutor had requested a court reporter, he was told that no court reporter was needed because the Trial Judge only wished to discuss scheduling.⁶ But that turned out not to be so. At the conference, the Trial Judge pressed the parties to resolve the case by a plea, even suggesting that Butler plead to Robbery Second Degree and Possession of a Firearm During the Commission of a Felony.⁷ The prosecutors declined,⁸ and defense counsel explained that Butler “was unlikely to accept any plea offer.” ⁹

The Trial Judge then informed the parties that she had several unspecified scheduling conflicts,¹⁰ that she would preside over the trial for only a few hours each day, and that because of that limited schedule, the trial would likely need to extend until the following Monday. Specifically, the Trial Judge gave the parties an odd patchwork schedule, with the Trial Judge declaring herself to be available only as follows:

• Wednesday, December 5, 2012: The judge had a conflict in the morning and could not start until 10:30 A.M. She proposed that the trial go to noon and then break for lunch before continuing until 4:30 P.M. (5 hours)

• Thursday, December 6, 2012: The judge proposed trying the case from 9:30 A.M. until 11:00 A.M. and from 2:00 pm until 3:30 P.M. (3 hours)

• Friday December 7, 2012: The judge proposed trying the case from 11:00 A.M. until 12:30 P.M. and from 1:30 P.M. until 4:30 P.M. (4.5 hours) ¹¹

Given the sparse trial hours she had offered, the Trial Judge then announced that she would conduct additional voir dire to ascertain the jury's availability to serve until Monday, if necessary. The State objected, but defense counsel did not.¹² The Trial Judge then conducted additional voir dire of the jury, asking the seated twelve jurors and four alternates three additional questions. The first question related to the scheduling issues arising from the limited hours the Trial Judge was offering for trial. The second and third were questions that the Trial Judge told the parties she always asked.¹³ Those questions were as follows:

It is now estimated that the trial will last until Monday. If anyone cannot serve through Monday, please raise your hand. Have you, a relative, or a close friend ever assisted or cooperated with the police, whether Attorney General—or the Attorney General's Office in a civil or criminal investigation? If you are a retiree, please raise your hand and come forward when directed by prothonotary so that you-so that we may find out about your previous employment.¹⁴

The questions the Trial Judge asked that were unrelated to scheduling are not uncommon when selecting a jury in the first instance, but here those questions were asked after the jury was sworn and without the consent of the parties. Both parties were content with the voir dire that had previously been conducted by the Trial Judge's colleague, and they opposed additional voir dire. Despite the parties' objection and despite knowing the jury had already been sworn, the Trial Judge proceeded to ask the additional voir dire questions unrelated to scheduling. Notably, the Trial Judge did that only after asking Butler if he wanted a trial, despite already having been told by Butler's counsel that prior plea negotiations had failed.

Five jurors came forward in response to these additional voir dire questions. The first, Juror # 1, needed a note to furnish her employer, which the Trial Judge agreed to provide. Juror # 1 was not excused. The second, Juror # 7, said that he would be traveling out of the country starting on Monday afternoon. The Trial Judge excused him. At this point, defense counsel stood up and the following colloquy transpired:

DEFENSE COUNSEL: Your Honor.

THE COURT: What's the problem? ...

DEFENSE COUNSEL: If we don't go through Monday—

THE COURT: Do you really want a juror that's going to rush things?

DEFENSE COUNSEL: No.¹⁵

The third juror to come forward, Juror # 15, said that he was a retired research scientist and that nothing about his employment would make it difficult for him to...