Outten v. State

• Decision Date: 20 September 1994
• Docket Number: 1993,164,163,1993 and 166,Nos. 159,s. 159
• Citation: 650 A.2d 1291
• Parties: Jack Foster OUTTEN, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. Steven W. SHELTON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 1291

650 A.2d 1291

Jack Foster OUTTEN, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Steven W. SHELTON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Nos. 159, 1993, 163, 1993, 164, 1993 and 166, 1993.

Supreme Court of Delaware.

Submitted: Sept. 20, 1994.

Decided: Nov. 21, 1994.

Revised: Dec. 23, 1994.

Upon appeal from the Superior Court. AFFIRMED.

Anthony A. Figliola (argued), Figliola & Facciolo and Sheryl Rush-Milstead, Wilmington, for appellant Outten.

Joseph A. Gabay (argued), Wilmington, for appellant Shelton.

Richard E. Fairbanks, Jr. (argued), for appellee.

Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT and BERGER, JJ.

VEASEY, Chief Justice.

In this appeal, we consider the sentences of death imposed on April 30, 1993, by the Superior Court on defendants below-appellants Jack Outten ("Outten") and Steven Shelton ("Steven") ¹ for the first degree felony murder of Wilson Mannon ("Mannon"). Steven's principal grounds for overturning his sentence are as follow: (a) the State negligently failed to secure and preserve a washing machine top allegedly used in the murder; (b) the Superior Court erred by not finding Christina Gibbons ("Gibbons") to be an incompetent witness; (c) the Superior Court erred by failing to instruct the jury regarding the burden of proof for non-statutory aggravating circumstances; (d) the Superior Court erred by excluding the testimony of Anthony Borsello ("Borsello"); (e) the Superior Court erred by failing to sever the trials; and (f) the State's peremptory challenge of a certain venire member violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1976). Outten joined in Steven's last two contentions and also maintained that the Superior Court erred by not permitting Outten to introduce extrinsic evidence in support of the credibility of one of his witnesses. Further, 11 Del.C. § 4209(g) requires this Court to review both death sentences to ensure the sentences were proportional to sentences received in similar crimes under that section. After reviewing the record and the applicable authorities, we find that the Superior Court committed no error. Accordingly, we AFFIRM the sentences imposed by the Superior Court.

I. FACTS

Outten, Steven, Nelson and Nelson's girlfriend, Gibbons, spent the afternoon of January 11, 1992 drinking beer at Nelson and Gibbons' home in Newark, Delaware. After drinking approximately one and one-half cases of beer, the four drove to Clemente's Tavern. At Clemente's, Outten conversed with another patron and indicated that he would sell drugs to the patron. Outten left Clemente's with the patron and proceeded to rob the patron of $25. He then rejoined Steven, Nelson and Gibbons and left for another bar.

Outten, Steven, Nelson and Gibbons proceeded to Hamill's Pub in Elsmere, and then to Fat Boys Bar in New Castle. Upon arrival, the three men began playing pool and Gibbons sat at the bar counter. Gibbons eventually began conversing and drinking with Mannon, who had arrived at Fat Boys earlier that same day. Ultimately, Mannon left the bar with Gibbons and the three men.

Mannon's body was discovered along a road in a deserted area of East Wilmington at approximately 11:00 a.m. on January 12, 1992. Mannon was lying on his back with his legs crossed and the top of his head completely shattered. His pockets were turned inside-out, and loose change, his empty wallet and his identification cards were scattered nearby. Additionally, a broken hammer handle rested a few feet away from Mannon's body and the hammer head sat near a fence along the road.

New Castle police questioned Nelson and Gibbons later on the morning of January 12 regarding an unrelated matter. During questioning, Gibbons told the police that Outten had killed an old man named "Willie" by hitting him with a sink, ² that Steven had kicked the old man and that Nelson, though present, had not become involved. In another statement that day, Gibbons stated that Outten had also beaten Mannon and hit him with a hammer before using "the sink." Nelson admitted that he swung a hammer at Mannon.

Outten, Nelson and Steven were tried together in a joint trial in the Superior Court. There was no timely motion for severance filed. The State introduced considerable scientific evidence linking all three of the defendants to the crime, including traces of the victim's blood on the defendants' clothing. The State's principal eyewitness was Gibbons, who initially testified at trial that Steven did not participate in the killing, but later admitted that she had lied and that all three defendants had been involved in Mannon's murder.

The trial court excluded the testimony of Borsello offered in defense by Steven. Borsello was an inmate at the Gander Hill correctional facility, occupying the cell next to Outten. Outten allegedly told Borsello that Outten and Nelson had killed Mannon, and that Steven and Gibbons "were over by the car" and were not involved in the killing. Borsello admitted that he engaged in the conversation with Outten at the behest of Captain Huston, a police officer involved in the investigation.

At the conclusion of the trial, the jury found all three defendants guilty of first degree felony murder and related offenses. In a separate penalty hearing, the jury recommended that all three defendants be sentenced to death. ³ The Superior Court accepted this recommendation and sentenced each defendant to death. Both Outten and Steven appealed their convictions, and an automatic appeal was docketed as to their sentences. ⁴

II. STEVEN SHELTON'S APPEAL

A. Whether the Washing Machine Top was Negligently Secured and Preserved

Steven's first contention on appeal is that the State negligently failed to secure and preserve the washing machine top allegedly used in Mannon's murder. Accordingly, Steven claims that the Superior Court should have entered a Lolly instruction negating any inference that the washing machine top was inculpatory. ⁵

During her initial statements to the police on January 12-13, 1992, Gibbons maintained that the murder weapon was a "sink." Although Gibbons claimed that the "sink" was thrown into a ditch along Interstate 95, she could not locate the object described when police took her to the area she indicated. In fact, the record shows that during the search, the police pointed out the washing machine top to Gibbons, but she replied that it "probably" was not the murder weapon. The police continued to do a thorough search, but could not find the "sink."

The police were not informed that the washing machine top might have been the weapon until Nelson's counsel asked the police to obtain the washing machine top on March 30, 1992, almost three full months after the murder. Steven has not demonstrated that the actions of the police were negligent. See Hammond v. State, Del.Supr., 569 A.2d 81 (1989). The evidence showed that the police proceeded carefully and wholly within the law based on the information available. As soon as the police were aware of the possibility that the washing machine top may have been used in the murder they seized it. Even had they seized it immediately, it is unlikely the washing machine top would have yielded any new evidence. It had sat submerged in water for at least 24 hours prior to the initial discovery of it by the police. This fact would have seriously impaired the ability of the police to remove significant fingerprints, hair, or blood. Further, Gibbons testified that Outten, and not Steven, hit Mannon with the washing machine top. Therefore, even had the police pulled the washing machine top out of the ditch immediately upon discovery and not found Steven's fingerprints on the top, this would not point to Steven's innocence. Accordingly, the police actions were justified and the Superior Court did not err by refusing to find that the police acted negligently.

B. Whether Gibbons was an Incompetent Witness

During the later stages of the trial, Gibbons testified that she had perjured herself in her earlier testimony. Gibbons stated, "I have been lying so much for this trial, I really don't know what the truth is anymore." Steven claims that the trial court erred by not striking Gibbons' testimony, or declaring a mistrial after this admission. Steven asserts that Gibbons was an incompetent witness who did not feel an obligation to tell the truth. He relies generally on State v. Keys, Supr., 114 N.H. 487, 322 A.2d 615 (1974), for the proposition that when a trial court is not satisfied that a witness feels obligated to testify truthfully, that witness should be disqualified or her testimony stricken.

Delaware Rules of Evidence provide that anyone is competent to testify as a witness, except as otherwise provided in the Rules of Evidence. D.R.E. 601; see also Ricketts v. State, Del.Supr., 488 A.2d 856, 857 (1985) ("[A]lmost anyone is competent to testify, letting the concerns of mental or moral capacity go to the issues of credibility or weight given to the evidence"). Each witness, however, must declare prior to testifying that he or she will testify truthfully. D.R.E. 603.

Although Gibbons' testimony was, at best, inconsistent and arguably runs afoul of D.R.E. 603, it does not rise to the level at which her testimony must be stricken. First, although a portion of the record reveals that Gibbons lied and knew she lied, the rest of the record amply supports a finding that Gibbons did understand the importance of her oath to tell the truth. Second, this Court in Conlow v. State, Del.Supr., 441 A.2d 638, 640 (1982), stated that the jury, not the court, is best suited to resolve the conflicts presented by a witness who changes his or her testimony. One treatise observes:

Although a witness at a criminal trial admits lying at three other criminal trials and has not been and does not expect to be prosecuted for perjury, it does not follow that he is an...