Mills v. State
| Decision Date | 29 June 1999 |
| Docket Number | No. 210, 1998.,210, 1998. |
| Citation | 732 A.2d 845 |
| Parties | John D. MILLS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. |
| Court | Supreme Court of Delaware |
David J.J. Facciolo, Assistant Public Defender, Wilmington, Delaware, for appellant.
John Williams, Department of Justice, Dover, Delaware, for appellee.
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices. HOLLAND, Justice.
The defendant-appellant, John D. Mills ("Mills"), was convicted, following a jury trial in the Superior Court, of Possession of a Destructive Weapon.1 The Superior Court sentenced Mills as follows: three years at Level V incarceration, suspended after fifteen days for Level IV home confinement, which would be suspended after three months for decreasing levels of probation. This is Mills' direct appeal.
Mills has presented three issues for review by this Court. First, Mills argues that the Superior Court committed reversible error when it denied his request for a jury instruction on justification created by a choice of evils. Second, Mills contends that the Superior Court erred when it declined to grant his motion for a mistrial after "the prosecutor's impermissible references to Mills' decision not to testify." Finally, Mills alleges that the Superior Court committed reversible error by reducing the burden of proof in its jury instruction on the issue of reasonable doubt.
We have concluded that each of Mills' contentions is without merit. Accordingly, we affirm the judgment of the Superior Court.
At approximately 5:10 a.m. on April 27, 1997, Wilmington Police Department Patrol Officers Jeffrey Phillips ("Officer Phillips") and David A. Chorlton ("Officer Chorlton") were sent to 28th Street and Northeast Boulevard in the City of Wilmington. The officers were dispatched as the result of a 911 emergency call that was received from a pay phone in that area. The uniformed officers were patrolling in a marked police car approximately four or five blocks away when the message was received.
The officers observed Mills and Jerome Bailey ("Bailey") on Northeast Boulevard. As the patrol car approached the two men, Officer Chorlton informed Officer Phillips, the driver, that Mills had a sawed-off shot-gun in his left hand. Officer Chorlton observed Mills lower the weapon to the side of his left leg and motion to Bailey to stand in front of him. Officer Phillips also observed this and proceeded to turn the patrol car around.
As the patrol car turned around, Officer Chorlton observed Mills bend down and lay the shotgun on the ground. Mills then stood up. Mills and Bailey continued walking across Northeast Boulevard. At that point, the officers exited their patrol car and secured the suspects. The officers retrieved the loaded shotgun, which was approximately ten inches long. The shot-gun and the shell inside were admitted into evidence at trial by the State without an objection by the defense.
Prior to opening statements by each party's counsel, Mills' attorney advised the Superior Court that he might request a jury instruction on justification-choice of evils.2 The Superior Court ruled that any determination with regard to that jury instruction was premature because the evidence to support such a request had not been presented. Nevertheless, the opening remarks to the jury by Mills' attorney suggested that a choice of evils defense would be presented. During opening statement, defense counsel made the following representation to the jury:
My client apparently was with a couple of friends and at some point got out of his vehicle ... What occurred subsequently to this is almost immediately when he's getting around the car he realized that this particular item is next to his car. He picks up the item, has it in his possession for probably a very, very short period, realizes what this gun is, knows that it is not something that he should have in his possession and then puts it to the ground and walks away.
Although Mills subsequently presented no evidence at all on any issue, during the prayer conference, his defense attorney requested a jury instruction on justification-choice of evils.3 The Superior Court denied the requested instruction on the basis that it was not supported by the record. We agree.
The justification-choice of evils defense codified in 11 Del.C. § 463 applies to situations where someone must decide in an emergency situation to commit what is otherwise a crime "to avoid an imminent public or private injury" which was not the result of the defendant's own conduct. Mills did not present any evidence in his own defense. Mills also failed to elicit any testimonial evidence to support a choice of evils instruction during the cross-examination of the State's witnesses.4 Therefore, the Superior Court correctly refused to charge the jury on that issue.5
Second, Mills contends that the Superior Court abused its discretion when it refused to grant a mistrial after "the prosecutor's impermissible references to Mills' election not to testify in his own defense." During the State's closing argument, the prosecutor initially stated, "You've heard no evidence of any reason why he had that shotgun." Mills' defense counsel promptly objected to the statement as an impermissible comment on Mills' right not to testify or present any defense witnesses during the Superior Court trial and requested a cautionary jury instruction. The Superior Court then instructed the jury as follows: "Members of the jury, I instruct you in any criminal case, the defendant is under no obligation to bring forth any evidence whatsoever."
After the jury instruction, the prosecutor continued his closing argument as follows:
And as the defense is under no obligation to produce any evidence of any choice of evils or any reason why this gun was picked up, for example a reason like I didn't want it sitting there, some small child might play with it, or I didn't know what I was doing, I was curious, and none of those kind of defenses have come forward, nor do they have to.
Mill's defense counsel again objected and at sidebar moved for a mistrial. The prosecutor responded to the second defense objection by stating:
I expressed what the defenses were, the defenses as they were brought up in the opening of [defense counsel]. He's the one that gave us those defenses in opening and produced no evidence of those whatsoever. It leaves me in a position when you bring up these arguments in opening and then don't bring up any evidence of them, then I'm in a position, and I need to address them. He brought them up in opening, and then it's left with me with those explanations, those arguments, out there and no evidence to back them up.
Mills' attorney replied that opening statements are not evidence but are meant to be an indication of what each side hoped to establish at trial.
In response to the second defense objection, the Superior Court directed the State "not to get further into argument about what defenses were suggested in the opening statement by defense counsel...." The Superior Court then gave the following additional cautionary instruction:
Members of the jury, I instruct you again that the defense is — any defendant in any criminal case is under no obligation to bring forth any evidence in a criminal case. The burden is upon the State always in every criminal case to prove beyond a reasonable doubt each and every element of the offense.
The Superior Court also specifically admonished the jury to "disregard entirely" the prosecutor's comments that were the subject of the second defense objection. The Superior Court reserved decision on the mistrial motion. The next day, after the jury found Mills guilty of Possession of a Destructive Weapon, the Superior Court denied the motion for a mistrial.
It is a violation of a defendant's Fifth Amendment right against self-incrimination for a prosecutor to "draw a negative inference from the defendant's election not to testify at trial."6 The State may not invite any inference of the defendant's guilt merely from his own failure to testify.7 An "accurate characterization of the evidence as uncontradicted," however, is permissible.8 This Court has previously noted that "between these two extremes lies an uncertain area of latitude for comment on a defendant's failure to testify."9
The Superior Court recognized that although the prosecution may comment upon the defendant's failure to produce evidence that was described during his or her attorney's opening statement to the jury,10 it is a subject area that should be avoided by the State due to the omnipresent danger of violating a defendant's rights under the Fifth Amendment of the United States Constitution.11 In this case, Mills had failed to either present or elicit any evidence to support a jury instruction regarding the theory of justification that had been described in his defense attorney's opening statement to the jury. The Superior Court balanced the probative value to the State's case of commenting on that obvious failure of proof against the potential for violating Mills' Fifth Amendment rights. The Superior Court's directions to the prosecutor during the recorded side bar conference and contemporaneous instructions to the jury properly resolved those competing considerations in favor of Mills.
We hold that the Superior Court did not abuse its discretion when it denied Mills' motion for a new trial. Both of the objections by Mills' attorney during the State's closing argument were timely. The trial judge's immediate clarifying instructions after each objection by Mills' attorney permitted the jury to properly discharge its function within the bounds of the law.
Finally, Mills contends that the Superior Court committed reversible error when it...
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