Gattis v. State

• Decision Date: 16 December 1993
• Citation: 637 A.2d 808
• Parties: Robert Allen GATTIS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 808

637 A.2d 808

Robert Allen GATTIS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: Dec. 16, 1993.

Decided: Feb. 28, 1994.

Rehearing Denied March 24, 1994.

Appeal from Superior Court. Affirmed.

Jerome M. Capone, Wilmington, for appellant.

Richard E. Fairbanks, Jr. (argued), Chief of Appeals Div., Timothy J. Donovan, Jr., and Loren C. Meyers, Deputy Attys. Gen., Dept. of Justice, Wilmington, for appellee.

Before VEASEY, C.J., and HORSEY, MOORE, WALSH and HOLLAND, JJ., constituting the Court en Banc.

WALSH, Justice:

This is an appeal from the Superior Court following the imposition of a death sentence. The appellant, Robert Allen Gattis ("Gattis"), was convicted of Murder First Degree, Burglary First Degree and Possession of a Deadly Weapon by a Person Prohibited. The charges arose out of the shooting death of his girlfriend, Shirley Y. Slay ("Slay"). In the penalty phase of the trial, the jury, acting pursuant to 11 Del.C. § 4209(c)(3), determined by a vote of ten to two that the aggravating circumstances outweighed the mitigating circumstances. The Superior Court agreed with that determination and, accordingly, imposed the death sentence. This appeal followed.

Gattis asserts various claims of error relating to the admissibility of evidence in both the guilt and penalty phase of his trial. He also argues that the imposition of the death sentence was not proportionate to the offense committed. His principal contention, however, is that his trial jury was not randomly selected. Although we conclude that the jury selection process followed in this case lacked total randomness, it did not prejudice defendant's entitlement to a fairly constituted jury. We also find his other claims of error to be without merit and affirm his conviction. The imposition of the death sentence was not disproportionate and is also affirmed.

I

The State's evidence presented at trial portrayed the following sequence of events. Gattis and Slay had been in a boyfriend-girlfriend relationship for almost six years prior to her death on May 9, 1990. The relationship had been, in part, a stormy one. Gattis was extremely jealous and possessive of the victim. On one occasion, in 1987, Gattis confronted the victim in a bar talking to another man. Gattis threatened the victim with a loaded handgun, fired a shot into the floor and pistol-whipped the man. Gattis was prosecuted for his conduct and pleaded guilty to Assault Second Degree and Reckless Endangering First Degree. He received five years probation.

At one point in their relationship, Slay lived in an apartment in Wilmington to which Gattis had a key and where he would occasionally spend the night. In April, 1990, Slay moved to an apartment outside Wilmington, partly to avoid contact with Gattis. On the day of her death, Slay advised her supervisor at work that she intended to terminate her relationship with Gattis that evening.

On May 9, Slay went to a softball game after she left work. Gattis was also at the game and apparently persuaded a reluctant Slay to leave with him. The two went to Slay's apartment where they argued over Gattis' inability to make telephone contact with Slay the previous evening. Slay claimed her telephone was not operating but Gattis arranged for a friend to telephone the apartment and, when the phone rang, he became enraged. He accused Slay of seeing another man, beat her, and left. Slay called the police. While the police were present in Slay's apartment, Gattis called several times. One officer spoke with Gattis, warning him to have no contact with Slay.

Gattis returned to Slay's apartment later that evening after borrowing a friend's car, apparently to avoid detection by the police. Outside the apartment, Gattis encountered a friend and neighbor of Slay, Linda Watson, who advised Gattis to stop fighting. The neighbor then telephoned Slay to advise her that Gattis was back. Watson then heard the sound of Slay's door being knocked in. As Watson ran out of her apartment, she heard a gunshot and saw Gattis running down the stairs. Slay died from a gunshot wound between her eyes. Autopsy results indicated that she was shot by a .38 caliber handgun from a distance of 4 to 18 inches. Gattis surrendered to police the following day after admitting himself to a mental hospital.

Gattis testified in his own defense. He claimed that the shooting of Slay was an accident which occurred when the gun discharged while he struggled with her to enter the apartment. The jury rejected this explanation and found Gattis guilty of Murder First Degree as well as the burglary and weapons offense. After hearing evidence and argument in the penalty phase, the jury decided that the aggravating factors outweighed the mitigating factors by a vote of ten to two. The trial judge subsequently received additional argument from counsel and separately determined that the death sentence should be imposed.

II

Gattis' principal claim of error on appeal is that his trial jury was not selected through a random process. In order to address this argument, it is necessary to examine the method used by the Superior Court to assemble the jurors for Gattis' trial and to select from that group the jurors to hear the evidence.

For Gattis' trial, about 400 people were summoned from the qualified jury wheel ¹ to report to the courthouse. There is no indication that the process used to assemble this group was invalid and Gattis does not challenge it on appeal. However, on the first morning of trial, as each juror arrived at the courthouse to report to the jury manager, he or she was assigned a sequential number until a group of 150 people had been assembled. The trial judge then called the prospective jurors, by their sequential numbers, in groups of 20, for individual voir dire. The effect of this was that the assembled panel of prospective jurors were interviewed in the order that each arrived at the courthouse, or on a "first-come, first-served" basis.

The first 35 prospective jurors called for voir dire were white. Gattis is black, as was the victim. Gattis' counsel became suspicious and inquired of the jury manager concerning the method of voir dire. He was advised of the sequential number assignment. Defense counsel then moved for a stay of the proceedings or a dismissal, charging that the jury selection had not complied with procedures mandated by the Delaware Jury Selection and Service Act ("Delaware Jury Act" or "Act"), 10 Del.C. Ch. 45.

At an evidentiary hearing, the Superior Court jury manager testified that the method used in Gattis' trial differed from that used in regular cases and in capital cases prior to May, 1991. Historically, and in contrast to the procedure used here, after the full panel of prospective jurors was assembled, the clerk would draw the names of the jurors from a box and assign numbers for individual voir dire based on the order of the draw. In May, 1991, the process was modified to reduce the amount of time the clerks devoted to jury selection. Under the "first-come, first-served" system, court clerks assigned numbers to jurors as they reported at 9:30 a.m., even though court was not in session and neither counsel nor the defendant were present.

The trial judge, after an evidentiary hearing, denied Gattis' motion to dismiss the panel. The court noted that the racial composition of the 99 jurors who were subjected to individual voir dire reflected 10 percent black representation--the same percentage reflected in the entire assembly of 400 jurors. The court observed that while the first 35 jurors individually questioned were white, the remaining 64 jurors questioned included 10 blacks. Since the final racial percentage of the voir dire reflected that of the entire jury assembly, the racial composition of the early jurors was deemed "irrelevant."

Gattis' attack upon the selection and impanelment of his jury is three pronged. First, he argues that it was improper to conduct the early assignment of numbers to jurors outside of the presence of himself and his counsel. Next, he contends that the trial court erred in providing both parties, in advance, with the names of the jurors in the order in which they would be questioned. Finally, he asserts that the selection process, based on a first-come, first-served arrangement, deprived him of a jury selected at random.

A.

As previously noted, the assignment of numbers to jurors in this case began as jurors appeared, beginning about one-half hour before court formally convened. Gattis claims that he had a right to be present when these assignments were made and his absence constitutes reversible error. Superior Court Criminal Rule 43(a) provides that a defendant shall be present during all phases of the trial "including the impaneling of the jury." Gattis concedes that he raised no objection to his absence in the trial court but argues that the matter is one of plain error.

Under the plain error standard of review this Court will consider errors not raised below only where the claim implicates material defects which are fundamental in character "and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice." Wainwright v. State, Del.Supr., 504 A.2d 1096, 1100 (1986); see also Wright v. State, Del.Supr., 633 A.2d 329, 336 (1993). While entitlement to trial by jury is, in a generic sense, a fundamental right, Claudio v. State, Del.Supr., 585 A.2d 1278 (1991), not every aspect of the jury selection process requires the participation of the defendant. The process of distributing numbers to prospective jurors is purely ministerial and the defendant's presence during that procedure would not have altered the process in any respect, or served to protect any substantial right. United States v. Bordallo, 9th Cir., 857 F.2d 519, 522-23 (1988), cert. denied, 493 U.S. 818, 110 S.Ct. 71, 107 L.Ed.2d 38 (1989)....