Fountain v. State

• Decision Date: 24 February 1971
• Citation: 275 A.2d 251
• Parties: Charles Lincoln FOUNTAIN, Appellant, v. STATE of Delaware, Appellee.
• Court: Supreme Court of Delaware

Page 251

275 A.2d 251

Charles Lincoln FOUNTAIN, Appellant, v. STATE of Delaware, Appellee.

Supreme Court of Delaware.

Feb. 24, 1971.

Appeal from Superior Court in and for Kent County.

Harold Schmittinger, of Schmittinger & Rodriguez, Dover, for appellant.

James H. Hughes, 3rd, Deputy Atty. Gen., for the State.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, Chief Justice.

The appellant was tried and convicted of assault with intent to rape. He was not represented at his trial by counsel appearing for him in this appeal.

It is argued that reversible error was committed by the trial judge when he failed to instruct the jury that a verdict of guilty must be the unanimous verdict of all members of the jury, even though there was no request that the jury be so instructed.

It is of course fundamental under our law that the verdict of a jury must be unanimous. This follows from Article I, § 4 of the Delaware Constitution, Del.C.Ann. providing that, 'The right to trial by jury shall be as heretofore.' This provision of our Constitution guarantees the right to trial by jury as it existed at common law. Nance v. Rees, 2 Storey 533, 161 A.2d 795 (1960). Unanimity of the jurors is therefore required to reach a verdict since such was the common law rule. 53 Am.Jur., Trial, § 1006. This requirement is recognized in Superior Court Criminal Rule 31(a), Del.C.Ann. Indeed, the State does not dispute the requirement of unanimity.

Appellant argues that, even in the absence of a request to do so, the trial judge, Sua sponte, should have instructed the jury that its verdict must be reached by unanimous verdict. However, there is no federal constitutional requirement that such an instruction be given Sua sponte by the trial judge. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, and see also Orfield, Criminal Procedure Under the Federal Rules, § 30.61.

The question is always whether or not the members of the jury in fact know that their verdict is required to be unanimous. We think it clear that the practice followed in our trial courts assumes such to be the fact.

Before each juror is called to service, he receives by certified mail a copy of 'A Handbook for Petit Jurors', published by authority of the Superior Court Judges, together with a summons and an information questionnaire. In the handbook it is clearly set out that a jury's verdict must be unanimous and that each juror should give full consideration to the opinions of his fellow jurors, but that he is not required to give up his own opinion which he is convinced is correct. Presumably, each prospective juror reads these instructions. This appellant has made no showing to overcome that presumption.

When a jury has reached a verdict and is returned to the courtroom, the Prothonotary asks the foreman what the verdict is. The foreman then announces it. Upon this, the Prothonotary then addresses the entire jury as follows: 'And so say you all?' At this point, any juror may speak up and deny that he had agreed. This was done in this case without complaint by the appellant.

Finally, any party or the court then has the right to demand that the jury be polled, in which event each juror is asked if the verdict returned is his verdict. This right is assured by Criminal Rule 31(d). This appellant did not demand that the jury be polled.

We think, therefore, that it is plain that the verdict returned in this case was unanimous and, in the complete absence of any showing negating this, we refuse to assume the contrary. We hold that, under the circumstances of this case, there was no error in failing to instruct the jury on the unanimity requirement.

We think, however, that in the future all doubts on this...