Ross v. State

• Decision Date: 25 April 1983
• Citation: 482 A.2d 727
• Parties: Frank L. ROSS, Defendant-Appellant, v. STATE of Delaware, Plaintiff-Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 727

482 A.2d 727

Frank L. ROSS, Defendant-Appellant, v. STATE of Delaware, Plaintiff-Appellee.

Supreme Court of Delaware.

Submitted: April 25, 1983.

Decided: Sept. 11, 1984.

Brian J. Bartley (argued), Asst. Public Defender, Wilmington, for defendant-appellant.

John A. Parkins, Jr. (argued), Chief of Appeals Div., Wilmington; Gary A. Myers (argued), Deputy Atty. Gen., Georgetown; James B. Ropp, Deputy Atty. Gen., Wilmington; James E. Liguori, former Deputy Atty. Gen., Dover, for plaintiff-appellee.

Before McNEILLY, HORSEY and CHRISTIE, JJ.

HORSEY, Justice:

Defendant, Frank L. Ross, seeks reversal of his convictions in a jury trial of Murder in the First Degree (11 Del.C. § 636(a)(1)), Conspiracy in the First Degree (11 Del.C. § 513(2)), and Possession of a Deadly Weapon during the Commission of a Felony (11 Del.C. § 1447(a)) in the death of William A. McBride, Jr. In a separate punishment hearing under 11 Del.C. § 4209, the same jury declined to impose the death penalty upon defendant. As a result, defendant received a mandatory sentence of life imprisonment without benefit of probation or parole. For the convictions of the weapons offense and conspiracy, defendant was sentenced to consecutive terms of five years and three years respectively.

On appeal, defendant asserts fifteen grounds for reversal. The issues raised involve essentially six subjects: (1) juror exclusion; (2) sidebar conferences; (3) evidentiary rulings; (4) jury instructions; (5) prosecutorial conduct; and (6) double jeopardy in sentencing. We find no reversible error and therefore affirm.

* * *

The evidence at trial may be summarized as follows: On April 14, 1980, William A. McBride, Jr. was stabbed to death in his apartment near Dover. His naked body was found floating face down in a bathtub half-filled with water. He had been stabbed 27 times--10 times in the face and 17 times in the body. There was evidence of a violent bloody struggle but no evidence of robbery or of a forced entry. McBride was killed by defendant Ross at the instigation of McBride's estranged wife. Ross admitted both his participation in the conspiracy to murder McBride and that he killed McBride. The focus of the trial was not on "who" but "why." Defendant contended that he was suffering from mental illness or a mental defect and otherwise acted under extreme emotional distress.

At time of death, McBride, 45 years old, had been separated from his wife, Judith A. McBride, ¹ for three months; and his wife had filed for divorce. The parties had been married only two years. Each had prior marriages and children by them. The parties had one child, a handicapped boy suffering from cerebral palsy.

Ross, 23 years old, recently discharged from the Navy, had come to Dover in search of work. He came at the urging of Robert Kreider, age 37 and an acquaintance of Judith McBride. Shortly after arriving in Dover in January, 1980, Ross and Kreider moved in with Judith McBride after Kreider's trailer home became uninhabitable.

The first day that Ross met Judith McBride, she told him that she wanted her husband dead. From McBride, Ross heard lurid tales charging William McBride with wife-beating and sexual abuse as well as cruel and inhuman treatment of their handicapped child. She asked Ross if he would be willing to kill her husband; and Ross answered, "Yes."

McBride had previously asked Kreider to help her kill her husband; but Kreider had been noncommital. The previous summer McBride had made two abortive attempts to secure a hired killer. More recently, McBride and June Davis, McBride's third roomer, had attempted without success to do away with William McBride. The plan had involved Judith McBride's putting Valium and sleeping pills in her husband's food; waiting for him to become unconscious and then placing him in a filled bathtub to drown under circumstances that would appear to be an accident. The effort was made but the plan backfired.

Within a week or so of their meeting, McBride promised to give Ross half of her husband's $20,000 life insurance policy if Ross would kill her husband. Over the next three months, McBride and her roomers, primarily Ross and Kreider, discussed six or seven different schemes for killing William McBride under circumstances that would suggest either an accidental death or death by an unknown assailant.

Thereafter, and before April 14, 1980, two aborted attempts were made by Ross and McBride to kill her husband. The conspirators then decided to re-enact the scenario of lacing William McBride's food with Valium. On April 14, 1980, Judith McBride and Frank Ross carried out their plan. Judith McBride prepared a Valium-laced meal, took it to her husband's apartment that evening, and saw that he ate it. Meanwhile, Ross waited at Judith McBride's home for the call to come over to her husband's apartment. While awaiting Ross' arrival, Judith McBride filled the bathtub, placed an empty Valium bottle on her husband's nightstand, wrote a note to him indicating that she had left, and then let Ross into her husband's apartment. Judith McBride told Ross that she didn't want to be there when the killing took place and she left.

Ross testified that he found McBride asleep in his bed. Ross first hit McBride over the head with a bottle, which only succeeded in arousing McBride from his sleep. Ross then proceeded to hit him several times with the bottle and in the process broke it. When McBride resisted, Ross began attacking McBride with his knife. By then, McBride was on his feet and Ross stabbed McBride in the chest. When McBride continued to resist, Ross pinned McBride against the wall and continued to stab him until McBride's body slid down the wall and sank to the floor. Not content with that, Ross made one final thrust with the knife downwards into McBride's eye. The force was so great that Ross had to put his foot on McBride's head to pull the knife out.

His mission accomplished, Ross carefully straightened the apartment before leaving. He also gathered up incriminating evidence and placed it in a plastic bag. Judith McBride was waiting outside in her car. She offered to drive him back to their house but Ross chose to walk. When Ross arrived back at the house, Judith McBride asked him whether her husband was dead and in the bathtub. Ross answered that he was. Ross then proceeded to boil the murder weapon. He also cut up his boots and coat and took them to a dumpster at a local shopping mall. Several days later, Ross left Dover and returned to his parents' home in Michigan.

Two weeks later, Judith McBride and Frank L. Ross were arrested and charged with the death of McBride's husband. After waiving preliminary hearings, McBride and Ross, in June, 1980, were each indicted for Murder in the First Degree as well as other offenses. In September, 1981, Ross was separately tried before a jury in Superior Court, Kent County, found guilty as charged, and ultimately sentenced to life imprisonment without benefit of parole. In March, 1982, Judith McBride was tried before a jury in Superior Court, Kent County, and she, too, was convicted of First Degree Murder and Conspiracy.

I

The first question presented is whether the Trial Court deprived defendant of his right to an impartial jury in its conduct of voir dire. The Court excluded for cause ten of the fifty-eight members of the jury array who affirmatively stated in response to the Court's questioning that they could not return a guilty verdict even if the evidence justified it--if the ultimate sentence would be death. The question posed by the Court was:

If after you heard a case, the evidence in your opinion justified a verdict of guilty, could you return that verdict knowing that the sentence would be death?

Ross did not object to the voir dire question nor did he challenge the excusal of the ten veniremen. Thus, our standard of review is whether the Court's excusal constituted plain or fundamental error.

Defendant contends that the Court, by systematically excluding a class of citizens representing a "distinctive group" of the community, deprived defendant of his right to a representative jury drawn from a fair cross-section of the community, in violation of his Sixth and Fourteenth Amendment rights. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) and Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Alternatively, defendant contends that the Trial Court was required by 11 Del.C. § 3301 to question the jurors further as to their ability to render an impartial verdict and abused its discretion in not doing so. We deal with the arguments in reverse order.

Section 3301 of Title 11 controls the selection of prospective jurors upon voir dire in capital cases. ² The pertinent language of § 3301 is that requiring a juror "called in a capital case [and who has not formed or expressed any opinion in regard to the guilt or innocence of the (defendant) to] be sworn as a juror in the case, unless he has conscientious scruples against finding a verdict of guilty in a case where the punishment is death, even if the evidence should so warrant him...." (emphasis added).

Section 3301 has been a part of the statute law of Delaware since 1915, 17 Del.Laws, c. 221 (1915). However, the question of § 3301's compliance with concepts of due process by excluding from capital cases jurors opposed to the death penalty was first presented in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). ³

This Court has previously found the above-quoted provisions of 11 Del.C. § 3301 to meet the Witherspoon test. Hooks v. State, Del.Supr., 416 A.2d 189, 194 (1980); Steigler v. State, Del.Supr., 277 A.2d 662 (1971), modified, 408 U.S. 939, 92 S.Ct. 2872, 33 L.Ed.2d 760 (1972). In Hooks, this Court most recently noted that § 3301 "follows very closely the rule laid down in Witherspoon ... concerning when a juror should be challenged for cause on the...