Hindt v. State

Decision Date15 September 1980
Citation421 A.2d 1325
PartiesGlenn E. HINDT, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
CourtSupreme Court of Delaware

Upon appeal from Superior Court. Affirmed; remanded with instructions.

Joseph A. Hurley, of Paul & Hurley, Wilmington, for defendant below, appellant.

Robert R. Thompson, Deputy Atty. Gen., Dover, for plaintiff below, appellee.

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

HERRMANN, Chief Justice.

In this appeal we are asked to reverse defendant's conviction under 7 Del.C. § 6013(a) 1 of the Water and Air Resources Act because: (1) prejudicial error was committed by the Trial Court when it allowed a witness for the prosecution to give an opinion regarding the ultimate fact to be decided by the jury; (2) the jury rendered inconsistent verdicts; (3) the defendant was denied due process in his conviction; (4) the State failed to prove each element of the crime beyond a reasonable doubt; (5) the Act was applied to the defendant in an ex post facto manner; (6) the Act constitutes an unconstitutional delegation of power by the Legislature; and (7) the sentence imposed was cruel and unusual punishment under the Eighth Amendment.

I.

In 1971, the defendant, Glenn E. Hindt, a contractor, was issued a permit by the Department of Natural Resources and Environmental Control (Department) for the construction and operation of a sewage treatment system designed to service several lots of land that he was developing. Later, in 1972, he applied for the permission of the Department to extend the system to other adjacent lots which he had begun to develop. The sewage treatment system was comprised of individual treatment units each of which was connected to a central sewer pipe. This pipe dumped the treated sewage into a nearby stream.

In 1974, the defendant was notified by representatives of the Department that the federal law concerning the discharge of pollutants into surface water had changed and that he would have to apply for a new and different permit, a National Pollutant Discharge Elimination System permit (NPDES permit). In 1975, the defendant applied for the NPDES permit and, pursuant to federal regulation, was issued both a draft permit and, subsequently, a final permit. The final permit contained, inter alia, a list of effluent limitations, a compliance schedule, and a schedule for the submission of monitoring reports. The defendant admits that at no time did he comply with any of the standards of schedules contained in the permit despite numerous letters from the Department. The only action taken by him concerning the permit was the mailing of a letter to a Department attorney outlining the steps taken to comply with the permit.

The defendant was arrested in 1977 and charged with two counts of failure to submit a written report required by the permit in violation of § 6013(a); one count of failure to file for the reissuance of a permit pursuant to § 6013(a); one count of failure to comply with discharge regulations in violation of § 6013(a); one count of failure to comply with an order of the Secretary of the Department contrary to § 6013(a); and one count of discharging a pollutant without a permit in violation of 7 Del.C. § 6003(a)(2). 2 The defendant was indicted and a first trial was held in which guilty verdicts were returned by the jury on all six counts. The defendant's motion for new trial, however, was granted. In the second trial, at the close of the State's case, the Trial Court dismissed the charge of failure to comply with the discharge regulations. The second jury returned not guilty verdicts on the charges of failure to file for a reissuance of a permit pursuant to permit requirements and discharging without a permit; it returned verdicts of guilty on the two counts of failure to file written reports as required by the permit; and no verdict was returned, because a unanimous verdict could not be reached, on the charge of failure to comply with an order of the Secretary of the Department, thus causing the Trial Judge to declare a mistrial on that count.

The defendant filed a motion for judgment of acquittal notwithstanding the verdict; this was denied by the Trial Court. On the conviction on one count of failure to file written reports, the defendant was fined $45,000, and on the other count $7,500, a total of $52,500. The major portion of the fines, $50,500, was suspended, however, on the condition that the defendant make arrangements, within 90 days of the imposition of sentence, to provide a sewage treatment system complying with federal and state regulations. Defendant promptly appealed to this Court within 30 days of the imposition of the sentence.

II.

First, as to the contention that reversible error was committed by the Trial Court in allowing certain testimony to be admitted into evidence: The testimony complained of was elicited during direct examination of a witness for the prosecution, William F. Moyer, an engineer with the Department, as follows:

"Q. From your understanding, from your point of view, did the defendant appear to understand his obligations? (Objection by defense counsel)

"Q. In your conversation or meeting with Mr. Hindt, did he indicate he did not understand?

"A. No, he did not.

"Q. To your knowledge, did Mr. Hindt violate his NPDES permit?

"A. Yes, he did."

Defendant complains that this testimony constitutes impermissible opinion testimony because it strikes to the heart of the matter to be decided by the jury. We disagree.

The portion of testimony in question concerning the defendant's understanding is clearly unobjectionable. The witness merely testified that the defendant made no discernible manifestations indicating a lack of understanding. This is clearly different from the situation in which a witness attempts to infer conclusions from such objective factors. See Delaware Uniform Rules of Evidence 701; John Hancock Mutual Life Insurance Co. v. Dutton, 5 Cir., 585 F.2d 1289, 1294 (1978).

Moreover, if any error exits in the latter portion of the testimony in which Mr. Moyer stated that the defendant had violated his permit, we find it is harmless error. The defendant's argument, both in the Trial Court and here on appeal, has never centered on his compliance with the permit requirements; indeed, he has admitted that he never complied with the permit requirements. Rather, his defense has been that the responsibility for pollution caused by the sewage treatment system resides with the homeowners in the development serviced by the system, not with him. Thus, any improper inferences drawn by the jury from the testimony in question constitutes harmless error.

III.

As to the contention that the combined verdicts rendered by the jury were impermissibly inconsistent, we cannot agree. As the Trial Court so ably determined, the verdicts can be logically reconciled. It is reasonable to assume that the not-guilty verdicts rendered on the charges of (1) failure to file for reissuance of a permit pursuant to permit requirements under § 6013(a), and (2) discharging without a permit under § 6003(a)(2), as well as the jury's inability to agree on the charge of failure to comply with an order of the Secretary of the Department, were arrived at because the jury, or various members thereof, determined that defendant was not a "discharger" within the meaning of Act, or as required by Order of the Secretary and the relevant portions of the permit. The portions of the permit requiring that monthly reports be made do not contain such a requirement. Thus, the jury may have found that while the defendant was not a "discharger," he was responsible, as holder of the permit, for making the required monthly reports. Therefore we can find no impermissible inconsistency. See Kreisher v. State, Del.Supr., 319 A.2d 31, 33 (1974); Wilson v. State, Del.Supr., 305 A.2d 312, 317 (1973).

IV.

Next, the defendant contends that his rights to Due Process guaranteed under the Fourteenth Amendment were violated. He argues (1) that the draft permit issued to him was lacking critical information, such as the dates on which the monitoring reports were due, and thus he could not be prosecuted for failure to comply because it did not sufficiently apprise him of what action or lack thereof would constitute unlawful conduct; and (2) that the portion of the Act defining a pollutant, 7 Del.C. § 6002(16), 3 is also unconstitutionally vague, again preventing appraisal of the dividing line between lawful and unlawful conduct. We are unpersuaded.

The existence of any vagueness in the terms of the draft permit cannot be the foundation for a reversal of a conviction on due process grounds for failure to comply with the permit, since the only conduct which can be punished is that which fails to comply with the requirements of the final permit. See 40 C.F.R. § 124-61(c) (1979). Because the defendant was prosecuted for failure to comply with certain terms of the final permit, the existence of some vagueness in the draft permit is irrelevant.

And we find that the defendant lacks standing to assert the unconstitutionality of the portion of the Act defining a pollutant. In Wilson v. State, Del.Supr., 264 A.2d 510, 511 (1970) this Court stated:

"Before considering these contentions, we must observe that defendant has stated his grounds in terms too broad. The constitutionality of a statute is considered in the light of the standing of the party who seeks to raise the question and of its particular application. It is an established principle of law that one may not urge the unconstitutionality of a statute if he is not harmfully affected by the particular feature of the statute alleged to be in conflict with the Constitution." Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586.

Accord, McCarthy v. State, Del.Supr., 372 A.2d 180 (1977).

The purpose of the Act is, inter alia, to protect the...

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13 cases
  • Traylor v. State
    • United States
    • United States State Supreme Court of Delaware
    • November 15, 1982
    ...9 As this Court observed in Hindt, there is "very little case law" delineating the limits of a constitutionally permissible fine. 421 A.2d at 1333. Hindt, however, does indicate what should be considered when reviewing an allegedly excessive fine: the statutory objective, the importance and......
  • Money v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 14, 1997
    ...concerning what is proper under the circumstances." Wheatt v. State, 410 So.2d 479, 482 (Ala.Cr.App.1982), quoting Hindt v. State, 421 A.2d 1325, 1333 (Del.Supr.1980). See Williams v. State, 420 So.2d 91, 93 (Ala.Cr.App.1982) (whether a fine fixed by a legislature constitutes an excessive f......
  • Flake v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 31, 2007
    ...fine will require him to work several years in order to pay it. The State responds that under the guidelines set out in Hindt v. State, Del.Supr., 421 A.2d 1325 (1980), the fine is "As this Court observed in Hindt, there is `very little case law' delineating the limits of a constitutionally......
  • State v. Miller
    • United States
    • Arizona Court of Appeals
    • May 14, 1992
    ...to the offense that it shocks public sentiment and affronts the judgement of reasonable people," id. (citing Hindt v. State, 421 A.2d 1325, 1333 (Del.Super.Ct.1980)), or if "it plainly and undoubtedly exceeds any reasonable requirements for redressing the wrong." Id. (citing State v. Jackso......
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