Conlow v. State

• Decision Date: 05 February 1982
• Citation: 441 A.2d 638
• Parties: James J. CONLOW, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 638

441 A.2d 638

James J. CONLOW, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted Sept. 21, 1981.

Decided Feb. 5, 1982.

Upon appeal from Superior Court. Affirmed.

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

Eugene M. Hall (argued), Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.

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

PER CURIAM:

Defendant appeals his Superior Court jury trial convictions of four felony offenses: Murder First Degree, 11 Del.C. § 636(a)(1); Robbery First Degree, 11 Del.C. § 832(a)(1); and two counts of Possession of a Deadly Weapon During the Commission of a Felony, 11 Del.C. § 1447.

First, defendant contends that the Trial Court erred in allowing the State, over objection, to question him concerning a prior felony charge to which he had entered a guilty plea, but for which he had not yet been sentenced. The term "convicted" as found in 10 Del.C. § 4303 is used in its common sense to refer to the establishment of guilt, by plea or conviction, independent of judgment and sentence. State v. Lowber, 6 Del. 324, 1 Houst. 324 (1870); see also Lis v. State, Del.Supr., 327 A.2d 746 (1978). The meaning of the term "convicted" or "conviction" varies according to the context and purpose of the particular provision-statutory or constitutional-in which it appears or to which it relates. Martin v. State, Del.Super., 10 Terry. 344, 116 A.2d 685 (1955) and Slawik v. Folsom, Del.Supr., 410 A.2d 512 (1979), relied on by defendant, are inapposite.

There is no merit to defendant's second contention that the Trial Judge violated defendant's due process rights by prematurely making indirect reference to the penalty phase of the hearing. The Trial Judge was properly exercising his administrative duties in alerting the jury before a weekend recess to the possibility of their being sequestered on the following Monday evening after the Court's jury instructions. The Court's comment could not reasonably be construed as referring to any post-conviction consideration or proceedings. Smith v. State, Del.Supr., 317 A.2d 20 (1974) is inapposite.

Third, defendant contends that the Trial Court committed reversible error in denying his motion for a Franks veracity hearing to attack the affidavit supporting the search warrant of defendant's residence. See Franks v. State, Del.Supr., 373 A.2d 578 (1977), rev. 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), on remand, Del.Supr., 398 A.2d 783 (1979). Defendant's Franks motion was based entirely upon a brief statement of the State's chief witness, the co-defendant, made 63 days after the crime, that defendant "could" still have possession of victim's stolen property. The statement, in context and standing alone, was wholly inadequate to establish a "deliberate falsehood ... or reckless disregard" for the truth to mandate an evidentiary hearing under Franks v. State, supra. We agree with the Court below that the co-defendant's statement was "not necessarily inconsistent" with the affiant's statement and "certainly does not rise to the level required under Franks." Considering the nature of the property involved, three 8-track tapes, the time lapse between the crime and the co-defendant's statement was not sufficient to raise a probable cause issue. See State v. Carbone, Conn.Supr., 172 Conn. 242, 374 A.2d 215 (1977); United States v. Brinklow, 10th Cir., 560 F.2d 1003 (1977).

There is no merit to defendant's fourth contention that the Trial Court either erred as a matter of law or abused its discretion in not requiring the State to elect before trial which of its two-count indictments for first degree murder it would prosecute to judgment. In addition to charging defendant with an intentional killing (for which he was convicted), defendant was charged with felony murder in recklessly causing the death of the same victim during the commission of a robbery, in violation of 11 Del.C. § 636(a)(2). Defendant argues that because the statutes involve inconsistent or contradictory mental elements, failure of the Trial Court to require an election constituted an abuse of discretion if not legal error. The overwhelming weight of authority on joinder of offenses is contrary to defendant's position. The general rule on joinder is that, "(t)he same offense may be charged by several counts, as having been committed in different ways or by different methods, in order to anticipate and accommodate every possible contingency in the evidence." 2 Wharton's Criminal Procedure § 296 (12th Ed. 1975); State v. Nelson, N.H.Supr., 103 N.H. 478, 175 A.2d 814 (1961). The evidence in this case arguably supported both murder theories. Hence, the State was entitled to prosecute and try defendant...