Lane v. State

• Decision Date: 12 July 1966
• Citation: 222 A.2d 263
• Parties: James Donald LANE, Appellant, v. STATE of Delaware, Appellee.
• Court: United States State Supreme Court of Delaware

Page 263

222 A.2d 263

James Donald LANE, Appellant, v. STATE of Delaware, Appellee.

Supreme Court of Delaware.

July 12, 1966.

Upon appeal from Superior Court judgment of conviction of manslaughter. Affirmed.

Henry A. Wise, Jr., of Wise & Suddard, Wilmington, for appellant.

William Swain Lee, Deputy Atty. Gen., for appellee.

CAREY and HERRMANN, JJ., and WRIGHT, Judge, sitting.

HERRMANN, Justice:

The defendant James Donald Lane appeals from his conviction of manslaughter after trial by jury.

The material facts are these:

The defendant, 28 years of age, was employed as a nursing assistant at a hospital and was a part-time instructor of State Police in judo. On November 11, 1964, at about 1:45 P.M., the defendant was parked in his automobile with a girl friend in a remote area of a secluded road. Clyde E. Brown, Jr. drove by slowly, turned and stared into the Lane automobile, continued a short distance down the road, then stopped. Brown reached into the back seat of his car, seemingly to get something, then got out and looked or threw something under his car. Brown then walked into the bushes, soon reappearing from the bushes behind the Lane automobile. Fearful that Brown had a gun, Lane instructed his companion to note Brown's license number, to drive away, and to call the police if she heard a shot. Lane then walked back to the bank alongside the road where Brown was hiding. The subsequent events were described as follows by Lane in a written statement, given to the police immediately afterwards, and admitted in evidence without objection:

'* * * he came out from behind this tree and was standing up over me by several feet, looking down on me. I asked him, 'What are you doing up there watching us?' I asked him, 'What have you got in your pocket?' And he told me, 'Nothing.' He told me he wasn't doing nothing in answer to my earlier question.

'I then said to him, 'Come down here off that bank.' He headed down the bank towards me and I backed away from him out onto the hard road. We then changed positions and he came at me. I don't know if he hit me or not but I let one go at him with my right and hit him on the chin and followed through with another left to his jaw. He then whirled around and I grabbed him by the clothes in the front and we staggered across the road to the bank on the opposite side. He kind of slumped down and I kicked at him twice in the side--I believe it was his left side--as he was down or going down and then as he was huddled like I made a downward chopping-type punch at him with my left hand a couple of times or so to the jaw. He was not fighting any more. * * *.'

'Question: Did you have and use any type of weapon on Brown other than your two fists and your foot?

'Answer: No, that is all.

'Question: Did Brown at any time have any visible weapon that you could see during the fight?

'Answer: No. He had gloves on. That is all.

'Question: Why did you get out of your car and go after Brown when you saw him in the bushes behind your car?

'Answer: I really can't say. I saw him. He went over the back seat of his car after something and I feared that he might have had a gun or something and I feared for the safety of Loretta and all kind of things like that. You know, you just can't explain why at a time like this.

'Question: Do you recall who swung the first blow, you or Brown?

'Answer: He made a sudden defensive move toward me and threw his arm up and that is when I went at him and I think I hit him first.

'Question: How many blows did Brown land on You, to your knowledge?

'Answer: It started as a push-push affair and he shoved at me. He really never got a good one in on me.

'Question: After Brown was down and did not move did you continue to hit or kick him further?

'Answer: No. That is when I went to his aid and tried to help him but it was too late then. I knew he was hurt bad by the way he looked.'

Lane could not revive Brown. When he was unable to obtain assistance from a passing motorist, Lane, with the help of his companion who had returned, rushed Brown to the hospital. Despite their efforts, Brown could not be saved and he died soon after arrival. Death was caused by asphyxia, i.e., lack of oxygen resulting from blood obstruction of the airways. The autopsy showed that Brown had suffered dislocation of both sides of the lower jaw, fractures of the nasal bones, and injury to the brain which produced unconsciousness. There was bleeding from the nasal cavities and the blood moved to the lungs via the airways through the larynx and tracheal windpipe, resulting in asphyxia.

Lane was indicted for manslaughter and found guilty by the jury. He appeals.

I.

The defendant's first ground of appeal is that a mistrial should have been granted, upon his application, when two photographs, not in evidence, were inadvertently included with the exhibits delivered to the jury as it retired to deliberate at the close of the case. The photographs in question showed the body of the deceased after the autopsy had been performed on the skull. The defendant objected to the admission of the photographs in evidence on the ground that they were immaterial and would unduly inflame the jury. The objection was sustained, but by inadvertence the photographs were among the other exhibits taken to the jury room.

Within a few minutes after retiring, the jury notified the trial judge that the two photographs were in its hands by mistake; and they returned all of the exhibits to the judge. After consultation with counsel, the trial judge recalled the jury to the courtroom ¹ and the following exchange took place.

'THE COURT: I want to thank the jury for returning the exhibits with the message that there were two photographs among the exhibits which had not been admitted in evidence. The jury is entirely correct. There were two photographs which the Clerk by mistake handed to the Bailiff and which should not have been handed to the Bailiff and should not have gone to the jury room. It is very helpful to the Court that you called this to my attention immediately.

'I would like to ask how many members of the jury inspected these two photographs which had not been admitted in evidence before they were returned to the Court?

'THE FOREMAN: We didn't inspect them, your Honor. Someone saw them right away and just showed them to me real fast and I said, 'We can't have it,' and I was saying it as he showed it to me. So they immediately went back in.

'THE COURT: So that there were a few members of the jury that glanced at them?

'THE FOREMAN: Two fleeting glances.

'THE COURT: Two fleeting glances.

'THE FOREMAN: Yes. Except the man who no doubt saw it first. He must have got a better look than I did.

'THE COURT: I see. Members of the jury, I ruled that these two photographs should not be admitted in evidence and were not to be considered by the jury. I now instruct all members of the jury who saw the photographs to disregard such photographs and not let them enter into your deliberations in any way whatsoever and to consider the case as if you had never seen the photographs. I will send out the exhibits with you again and will omit those two that had not been introduced in evidence.'

The defendant's motion for mistrial on this situation was denied, in the course of which the trial judge expressed doubt as to the accuracy, in the first instance, of his ruling that the photographs were inadmissible.

The question now before us is whether, under these circumstances, the situation was sufficiently prejudicial to the defendant to warrant the conclusion that the trial court abused its discretion in denying the motion for mistrial. See 23A C.J.S. Criminal Law § 1369; 39 Am.Jur. 'New Trial' § 84; 3 Am.Jur. 'Appeal and Error' § 971; Compare Patterson v. Surpless, 107 N.J.L. 305, 151 A. 754 (1930); Rent-A-Car Co. v. Globe & Rutgers Fire Ins. Co., 163 Md. 401, 163 A. 702, 86 A.L.R. 922 (1933). We think not.

First, as this court held in Wisniewski v. State, 1 Storey 84, 138 A.2d 333 (1957), the admission of photographs of this character generally lies within the discretion of the trial court; and the erroneous submission to the jury of this type of photograph is not generally considered to be prejudicial error. See also Bantum v. State, 7 Terry 487, 85 A.2d 741 (1952).

Secondly, there is nothing to contradict the statement of the foreman of the jury that only he and one other juror gave the photographs 'fleeting glances' before they were returned to the trial judge.

For these two reasons the possible prejudice to the defendant, arising from this inadvertence, was reduced to the point that, in our judgment, the trial court was clearly within the realm of sound judicial discretion in denying the motion for mistrial.

The defendant puts misplaced reliance upon cases governed by special statutory provisions. See Anno. 20 A.L.R. 1187, et seq. Other cases cited by the defendant on this point are inapposite on their facts.

II.

The remaining grounds of appeal advanced by the defendant are founded upon the jury instructions:

A. Addressing himself to the defense of self-defense and the related obligation to retreat, the defendant takes exception to the following...