Kelly v. State
| Decision Date | 09 January 1990 |
| Docket Number | 1988,No. 39,39 |
| Citation | 577 A.2d 753 |
| Parties | Charles Kevin KELLY, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted: |
| Court | Supreme Court of Delaware |
Superior Court, New Castle County.
AFFIRMED.
Before CHRISTIE, Chief Justice, and HORSEY, MOORE, WALSH and HOLLAND, Justices (constituting the Court en banc).
This 25th day of May, 1990, it appears to the Court that:
1) The defendant-appellant, Charles Kevin Kelly ("Kelly") and his co-defendant, Vincent L. Perry ("Perry") 1, were both convicted of Murder in the First Degree and Conspiracy in the First Degree, following a six-week jury trial in the Superior Court, in and for New Castle County. Kelly moved for a new trial on several grounds. After conducting two evidentiary hearings, the Superior Court denied Kelly's post-trial motion in a memorandum opinion dated December 16, 1987. State v. Perry and Kelly, Del.Super., C.A. Nos. IN85-10-1168 through IN85-10-1673, Chandler, J. (Dec. 16, 1987). On January 7, 1988, the Superior Court sentenced Kelly to life imprisonment without parole, plus ten (10) years. 2
2) In this direct appeal, Kelly contends that (1) the Superior Court erroneously denied his motion for severance, (2) the Superior Court erroneously refused to enter a judgment of not guilty, notwithstanding the jury verdict, and (3) that he was denied a fair trial because the State knowingly used false testimony and withheld impeachment material.
3) Kelly's convictions resulted from the murder of Christ Walker ("Walker"). Walker's body was found buried on a farm near Christiana, Delaware. Walker was an informant for the United States Drug Enforcement Agency (DEA). Walker was scheduled to be the primary witness against Perry, who had been charged with two counts of delivery of methamphetamine. That trial was scheduled to begin July 20, 1983. However, Walker disappeared and thus, became unavailable to testify against Perry.
4) The key witness against Kelly in this case was John Hall ("Hall"). Hall testified that in late June, 1983, after being released from jail, he went to Chichester, Pennsylvania to see Kelly, whom he had known for approximately two years, about selling drugs. Hall testified that Kelly's response was that he had something more important to do. Kelly informed Hall that someone was going to be killed.
That afternoon, Kelly and Hall went to a place called Summit Beef, in Kelly's car. There, Kelly and Hall picked up a man who was introduced to Hall as Perry. Hall testified that he, Kelly, and Perry then went to a farm near Christiana, owned by his brother, Robert Hall. According to Hall, the purpose of the trip was to familiarize Perry with the area. Hall stated that he remained on the farm, but that Perry and Kelly both left. Hall testified that later the same day, Kelly returned alone, with shovels and two twenty-five pound bags of lime. Hall and Kelly then dug a hole and waited at an abandoned house.
Hall testified that later in the evening, Perry drove up to the abandoned house. Perry and Walker, whom Hall had never seen before, both got out of the car. Hall testified that as the two men approached the house, Kelly stepped forward and shot Walker several times in the chest and face. Hall stated that Kelly then handed him the gun and directed Hall to fire two shots into Walker's forehead, which he did. Hall and Kelly then buried Walker's body and disposed of Walker's clothes in the Chesapeake and Delaware Canal. The gun was given to Perry for disposal. Hall testified that a few days later, Perry paid him and Kelly each $5,000, in connection with Walker's murder.
5) Kelly's first argument in this appeal is that the Superior Court should have granted a motion to sever his trial from Perry's trial. Kelly submits the State presented a substantial amount of evidence implicating Perry in Walker's death, but relatively little evidence incriminating him. Kelly contends that the disparity in the amount of evidence offered against each co-defendant necessitated severance.
Under Superior Court Criminal Rule 8(b) 3, two or more defendants may be charged in the same indictment, if they are alleged to have participated in the same act, or in the same series of acts. Ordinarily, when defendants are indicted jointly, they are also tried together. Jenkins v. State, Del.Supr., 230 A.2d 262, 272 (1967), aff'd, 395 U.S. 213 (1969). If, however, the trial court finds that a joinder of defendants for trial will prejudice any of the parties, it should grant a motion for separate trials. Super.Ct.Crim.R. 14. 4 See also Bradley v. State, Del.Supr., 559 A.2d 1234 (1989) ().
The decision to grant or deny a motion for severance is addressed to the sound discretion of the trial judge. Bradley v. State, 559 A.2d at 1241 (); Jenkins v. State, 230 A.2d at 272; Super.Ct.Crim.R. 14. As a general rule, the factors to be considered when determining whether a motion for a separate trial should be granted are 1) an absence of substantial independent competent evidence of the movant's guilt; or 2) antagonistic defenses as between the codefendant and the movant 5; or 3) difficulty in segregating the State's evidence as between the codefendant and the movant. Jenkins v. State, 230 A.2d at 273. Bradley v. State, 559 A.2d at 1241.
Kelly and Perry did not present antagonistic defenses. Both men denied any involvement with Walker's death. A disparity in the evidence presented against each defendant in a joint trial does not ipso facto require a severance. When considering whether to grant a motion for severance, based upon the grounds Kelly raised, a trial court must consider the strength of the other evidence against the movant and the jury's capability of segregating evidence which is admissible only as to one defendant. Jenkins v. State, 230 A.2d at 273. Whether the trial court has abused its discretion will depend upon the facts and circumstances of each case. Id. at 272-73.
The record reflects that the guilt or innocence of Perry depended, in part, upon the State's success in convincing the jury that Perry wanted to kill Walker to prevent him from testifying at Perry's drug trial and accordingly, that Perry had substantially planned Walker's murder. The Superior Court found that since much of this evidence related to events which occurred prior to any evidence of Kelly's involvement, it was logically distinct from the substantial independent evidence connecting Kelly to the murder, i.e., Hall's testimony. See United States v. Ramirez, 710 F.2d 535, 547 (9th Cir.1983). The Superior Court concluded that under these circumstances, the evidence of Perry's planning and motive could easily be distinguished by the jury from the evidence, presented by Hall's testimony, of Kelly's participation in the actual killing of Walker. The Superior Court specifically instructed the jury to consider the evidence against Kelly and Perry separately. See Lampkins v. State, Del.Supr., 465 A.2d 785, 795 (1983).
The burden is on the movant to demonstrate the existence of a reasonable probability that substantial injustice may result from a joint trial. Lampkins v. State, 465 A.2d at 794-95; Bates v. State, Del.Supr., 386 A.2d 1139, 1141 (1978); Jenkins v. State, 230 A.2d at 273. See Gray v. State, Del.Supr., 441 A.2d 209, 216 (1982); Hooks v. State, Del.Supr., 416 A.2d 189, 196 (1980). The Superior Court ruled that, although there was a quantitative difference in the evidence presented against Kelly and Perry, Kelly had not shown that substantial injustice would result from a joint trial. We have concluded that the Superior Court properly exercised its discretion in denying Kelly's motion for a severance of his trial from Perry's trial. Compare Bradley v. State, 559 A.2d at 1240-42.
6) Kelly's second contention in this appeal is that the Superior Court should have entered a verdict of not guilty, notwithstanding the verdict, because the jury rendered a compromise verdict. A compromise verdict is one "which results from the surrender by some jurors of their conscientious convictions in return for some like surrender by the others." Wilson v. State, Del.Supr., 305 A.2d 312, 317 (1973). Compromise verdicts are invalid. Id. (citing Simmons v. Fish, 97 N.E. 102 (Mass.1912)).
After deliberating for some time, Kelly's jury asked whether Perry and Kelly could be convicted on the weapon's charge even if another person, who was not charged, had actually used the pistol. After conferring with counsel, the Superior Court judge instructed the jury that Perry and Kelly could be held liable as accomplices for the weapons offense, even if the jury believed that the person who actually possessed the weapon was not charged. See 11 Del.C. § 272(2). Subsequent to its receipt of that instruction, the jury found both Perry and Kelly guilty of murder and conspiracy, while acquitting them on the weapons charges. Kelly argues that this is "an incredulous verdict in that [it] indicates a murder and conspiracy occurred, but the murder was committed without a weapon."
We find it unnecessary to speculate as to why the jury decided to acquit both Kelly and Perry of the weapons charges but to convict them of murder in the first degree and conspiracy. Wilson v. State, 305 A.2d at 317. 6 Kelly, like any other criminal defendant, is protected against jury irrationality or error by filing a motion for a judgment notwithstanding the verdict, which requires an independent judicial review of the sufficiency of the evidence...
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State v. Anker, No. ID #0402010394 (DE 4/4/2005)
...*2 (Del.) ("[T]he defendants' strategies were consistent in their denial of criminal culpability.") ("Jacono"); Kelly v. State, 577 A.2d 753 (Table), 1990 WL 84753, at *2 (Del.) ("Kelly and Perry did not present antagonistic defenses. Both men denied any involvement with Walker's death.") (......