Sexton v. State

• Decision Date: 29 January 1979
• Citation: 397 A.2d 540
• Parties: Jerry J. SEXTON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 540

397 A.2d 540

Jerry J. SEXTON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted Sept. 13, 1978.

Decided Jan. 2, 1979.

Rehearing Denied Jan. 29, 1979.

Upon appeal from Superior Court. AFFIRMED in part and REVERSED in part.

L. Vincent Ramunno, Wilmington, for defendant below, appellant.

Lucille K. Cirino, Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.

Before HERRMAN, C. J., DUFFY and McNEILLY, JJ.

McNEILLY, Justice:

Defendant, Jerry J. Sexton, was convicted by a Superior Court jury of possession of a deadly weapon by a person prohibited, 11 Del.C. § 1448, possession of a wiretap interception device, 11 Del.C. § 1336(d)(1), and two counts of receiving stolen property, 11 Del.C. § 851. He appeals, contending as error: prejudicial joinder of the charge possession of a deadly weapon by a person prohibited; the insufficiency of evidence to sustain convictions on the possession charges; the State's failure to provide him with a prior inconsistent statement of a State's witness; the admission of physical evidence seized pursuant to constitutionally deficient search warrants; the admission of various irrelevant and prejudicial testimony; the Trial Court's denial of his motion for a new trial; the illegal police tactics used to apprehend him; and, numerous prejudicial remarks by the prosecutor. We affirm defendant's convictions on the possession charges, but because of prejudicial prosecutorial remarks, we reverse his convictions for receiving stolen property.

I

Robert Gouge, an undercover Delaware State Police detective, by pre-arrangement, drove John Poteet, a police informant, and James Laws to several locations in the Glasgow, Delaware area where Poteet and Laws removed three CB radios from parked cars. They then proceeded to defendant, Jerry Sexton's residence, where only Poteet and Laws were admitted. Defendant paid Poteet and Laws fifty dollars for two of the radios, but rejected the third.

Later that morning, at about 7:00 A.M., police returned to defendant's residence with two warrants in search of the stolen CB radios and a chrome handgun, allegedly in defendant's possession. The police seized the radios, the handgun, a stolen IBM composer valued at approximately four thousand dollars, and a telephone repair device.

During the course of trial, the prosecutor made various remarks about defendant's character and credibility. In opening, she referred to defendant as an "armed robber", although defendant had stipulated to his prior felony conviction for the purpose of the weapon offense. She further characterized him as both a "fence" and a "con artist". In summation, she labeled defendant a "fagin", a teacher of crime to young boys in the neighborhood, although no such evidence was adduced during trial. She repeatedly referred to defendant's testimony as consisting of twelve "lies". Finally, she improperly told the jury that if her evidence were not reasonable and credible, that the Trial Judge would not have let her present it.

II

We first address defendant's contention that he was denied a fair trial because of the various prejudicial remarks by the prosecutor. He alleges that the effect of the prosecutor's remarks was to convict him upon his alleged bad character rather than upon the specific acts for which he was indicted.

The State asserts that there is substantial evidence on the record to support its characterizations of defendant as a "con artist" and a "fence". Such evidence includes: the testimony of Mrs. Rita Laws who quoted her son James as calling defendant a "fence"; the testimony of detective Gouge reflecting numerous statements of James Laws that defendant was a repeated purchaser of stolen goods; the testimony of Charles Cerasari describing defendant's attempt to bribe James Laws not to appear at trial; the testimony of an IBM saleswoman describing defendant's attempt to convince her to verify serial numbers on a sales slip which she never wrote. The State further contends that its characterization of defendant's testimony as "lies" was proper attack on reputation evidence and supported by a myriad of inconsistencies involving the defendant. While admitting error in referring to defendant as an "armed robber", the State claims that the error was cured by the Trial Judge's cautionary instruction to the jury. Finally, the State concedes that its reference to the Trial Judge as a finder of witness credibility was error, but that it was harmless based on the weight of the evidence against the defendant.

An essential element the State must prove to convict an accused of receiving stolen goods is that the accused knew or believed the goods to be stolen. 11 Del.C. § 851; State v. Shahan, Del.Super., 335 A.2d 277 (1975). By impugning defendant's character and credibility, the prosecutor induced the jurors to believe that defendant knew the goods were stolen. The prosecutor's name-calling clearly was designed to inflame the passions of the jurors and convince them that defendant was a particularly despicable individual who necessarily committed the crime. The denomination of defendant's testimony as "lies" amounted to the testimony of an unsworn witness and a statement by the prosecutor that she was personally convinced of defendant's guilt. Furthermore, the prosecutor's remark that the Trial Judge would not have admitted the State's evidence if it were not reasonable and credible was clearly improper because it insinuated that the Trial Judge believed defendant guilty. Washam v. State, Del.Supr., 235 A.2d 279 (1967).

Not every improper remark by a prosecutor requires reversal, but only that which prejudicially affects substantial rights of the accused. Super.Ct.Crim.R. 52(a); Edwards v. State, Del.Supr., 320 A.2d 701 (1974). Here, we think the cumulative effect of the prosecutor's remarks clearly prejudiced the accused's ability to defend himself against the charges of receiving stolen property.

However, we conclude that the prosecutor's remarks did not substantially affect defendant's right to a fair trial on the charges of possession of a deadly weapon by a person prohibited and possession of a wiretap interception device. Where the only substantial issues on those charges were the existence of the prohibited items and their possession by defendant, the prosecutor's remarks about defendant's character and credibility could have had little bearing on their determination.

Although the prosecutor operates within an adversary system, his duty is to seek justice, not merely convictions.

"A prosecuting attorney represents all the people, including the defendant who was being tried. It is his duty to see that the State's case is presented with earnestness and vigor, but it is equally his duty to see that justice be done by giving defendant a fair and impartial trial."

Bennett v. State, Del.Supr., 164 A.2d 442, 446 (1960).

That same duty requires the prosecutor to refrain from legally objectionable tactics calculated to arouse the prejudices of the jury. ¹

III

We turn now to defendant's other arguments.

Defendant first asserts that he was unduly prejudiced by joinder of the offense, possession of a deadly weapon by a person prohibited, with the other offenses for which he was tried. Defendant has failed to establish in his appeal how such joinder was prejudicial; moreover, he failed to move prior to trial for relief from the alleged prejudicial joinder, thereby appearing to waive any objection he may have had. Superior Court Criminal Rule 12(b).

In any case, Superior Court Criminal Rule 8(a), which provides for joinder of offenses, "is designed to promote judicial economy and efficiency, provided that the realization of those objectives is consistent with the rights of the accused." Mayer v. State, Del.Supr., 320 A.2d 713, 717 (1974). We believe that the purposes of judicial economy and efficiency out-weigh defendant's unsubstantiated claims of prejudice. Compare Bates v. State, Del.Supr., 386 A.2d 1139 (1978). Joinder was proper; therefore, defendant's contention is without merit.

IV

Citing as authority Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), defendant next alleges reversible error in the State's failure to provide him with a State's witnesses' pretrial inconsistent statement for purposes of cross-examination.

"(I)t is now settled in this jurisdiction that the State may be required to produce at the trial a prior written statement of a witness after he has been called to the stand by the State and his credibility has been put in issue." State v. Hutchins, Del.Super., 138 A.2d 342 (1957). However, the State is not required to offer voluntarily to the defense its witnesses' prior written statements. The defendant must establish a proper foundation for such statements, which includes a demand on the State for their production. Compare Appeal of Cowell, Pa.Super., 243 Pa.Super. 177, 364 A.2d 718 (1976). Here, defendant made no demand for the pretrial statement of the State's witness; consequently, there was no error in the State's withholding it from the defendant.

V

Defendant next contends that certain physical evidence admitted at trial was seized pursuant to constitutionally deficient search warrants. He claims that the warrants for the stolen CB radios and the chrome handgun were invalid because of defective supporting affidavits. He argues that the affidavit to the warrant for the radios was deficient in that it failed to establish the reliability of the hearsay informants, John Poteet and James Laws. He also argues that the affidavit to the warrant for the handgun was invalid for two reasons: (1) the undisclosed informant's reliability is supported only by the affiant's opinion, not by corroborating facts and (2) the affidavit is stale for lapse of time between the observations of the informant and the application for the warrant.

We find that both...