Smith v. State

• Decision Date: 15 February 1974
• Parties: Leroy L. SMITH, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 20

317 A.2d 20

Leroy L. SMITH, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Feb. 15, 1974.

Upon appeal from Superior Court.

Richard M. Baumeister, Asst. Public Defender, for appellant.

Joseph A. Hurley, Deputy Atty. Gen. for appellee.

HARRMANN, Chief Justice, CAREY and DUFFY, Associate Justices, sitting.

DUFFY, Justice:

Defendant was convicted of rape and appeals on three grounds.

I

First, defendant argues that he was denied pretrial discovery in violation of Superior Court Criminal Rule 16, ¹ Del.C.Ann.

Prior to trial, defendant requested 'written or recorded (in any form whatsoever) statements or confessions' made by defendant; the State answered by saying that none existed. At trial, however, testimony indicated that defendant had made certain incriminating statements to his father who subsequently related them to the police. Sometime thereafter a police memorandum was made, paraphrasing the substance of what the father had said. Over defendant's objection, a police officer testified at trial to the incriminating statements related to him by the father. ² Defendant contends that the memorandum was discoverable under the Rule and, since it was not produced by the State prior to trial, the Trial Judge should not have permitted the police officer to testify as to what the father told him.

The issue is controlled by our decision in Ray v. State, Del.Supr., 262 A.2d 643 (1970). There, we held that notes made by a police officer based upon oral statements to him by defendant were not within the purview of Rule 16(a). Here, defendant's statement was made, not to the police but to his father; and the notes were based upon what the father told a police officer. Under Ray a defendant cannot discover notes which reflect a police officer's recollection of a conversation with him and, A fortiori, he cannot compel discovery of notes which reflect an officer's recollection of a conversation with a third person.

We hold that the oral statement made by defendant to his father, although reduced to paraphrase form in a police memorandum, was not discoverable under Rule 16(a).

II

Second, defendant argues that he was prejudiced by failure of the Trial Judge to instruct the jury not to read news accounts of the trial. At the end of the first day of trial the Judge admonished the jury not to discuss the case with anyone but said nothing about reading newspaper reports. When trial began next day defense counsel brought to the Court's attention a report in a local newspaper (the Morning News) about the trial which contained a reference to defendant's prior criminal record, including a four-year sentence for conviction of assault with intent to rape. Defense counsel requested the Court to individually examine each juror on Voir dire to determine whether the article had been read by the jurors or discussed by them. The Court denied the request but conducted a Voir dire of the panel collectively. The examination revealed that one juror had read the report but had not discussed it with any other juror. That juror was dismissed and replaced by an alternate.

Defendant makes two arguments based upon these events: he says that reversible error occurred when the Court dismissed the jury at the end of the first day without an admonition as to news accounts of the trial, and, he continues, the Judge compounded the error by failing to conduct a separate examination of each juror.

In our view, failure to admonish the jury on a daily basis is not reversible error. When a juror begins service on a panel he is routinely given a copy of A Handbook for Petit Jurors Serving on the Superior Court of the State of Delaware which provides in part:

'Jurors are expected to use all the experience, common sense and common knowledge they possess. But they are not to rely on any private source of information. Thus, they should be careful, during the trial, not to discuss the case at home or elsewhere. A fact that a juror gets from a private source may be only half true. It may be a fact that can be explained or perhaps the law of evidence requires it should have no influence on the outcome. At any rate, it is only fair that the parties have a chance to know and explain or answer any facts that matter in the case.

Jurors must not talk about the case with others not on the jury and must not read about the case in the newspapers. They should avoid radio and television broadcasts that might mention the case. The jury's verdict must be based on nothing else but the evidence before the Court.

Breaking these rules is likely to confuse a juror. It may be hard to separate in a person's mind the court testimony and reports coming from other sources and such outside reports may be biased or inaccurate.'

See State v. Halko, Del.Super., 193 A.2d 817 (1963). The Court, counsel and the litigants are entitled to assume that jurors will follow these instructions, including those pertaining to newspapers; if any doubt is raised about the validity of that assumption the Court should then make an independent determination of the facts.

It is well settled that the conduct of a trial is largely within the discretion of the Trial Judge and, within the context of what occurred in this case, we suggest a few guidelines ^2A in the exercise of that discretion: In our view, for the integrity of the trial and in the interests of justice, the Trial Judge should, at the end of each day, caution the trial jury collectively about avoiding accounts of the proceeding which may appear in the news media, including newspapers, radio and television. ³ At the commencement of each new trial day the Court should inquire of the jury, collectively, as to whether any member has in any way been exposed to such accounts; when a juror responds affirmatively the Trial Judge should, out of the presence of the remainder of the jury, inquire into the nature and extent of the exposure. Such inquiry should be made by the Court, not counsel, and may be conducted in chambers.

We take occasion to emphasize that fairness, and indeed the integrity of the judicial process, make it imperative that jurors secure information about the case only as a corporate body in the courtroom. Only in that way can knowledge of the case at hand be presented to jurors in accordance with traditional rules of evidence and be tested by the constitutional right of cross-examination. Compare Marshall v. United States, 360 U.S. 310, 79 S.Ct 1171, 3 L.Ed.2d 1250 (1959). Since our courts are open and media access is ordinarily routine, it is imperative that jurors avoid being influenced by accounts of the proceedings as filtered through third persons, including representatives of the news media. To accomplish that objective a Trial Judge has a wide discretion. Thus he should hear and consider in the privacy of chambers, matters as to which the jury has been excluded, if that be deemed by the Trial Judge necessary to protect the jury from media accounts of such matters. The Court's ultimate ruling on any such matter should, of course, be made in open court. A decision to hear such matters in chambers should be made only after full consideration of the constitutional right to a public trial, Art. 1, § 7, Del.C.Ann., and the requirement that all courts shall be open, Art. 1, § 9. Compare Lecates v. Lecates, Del.Super., 190 A. 294 (1937); see the discussion in 23 C.J.S., Criminal Law § 963. ⁴

The way in which the Trial Judge conducted the Voir dire in this case was entirely within his discretion and, absent a showing of abuse, he will not be reversed. We find no abuse in the Court's decision to make the inquiry collectively and not individually. Compare Williams v. State, Del.Supr., 205 A.2d 9 (1963); Smith v. United States, 8 Cir., 236 F.2d 260 (1956), cert. den. 352 U.S. 909, 77 S.Ct. 148, 1 L.Ed.2d 118 (1956); People v. Marino, 95 Ill.App.2d 369, 238 N.E.2d 245 (1968), aff'd 44 Ill.2d 562, 256 N.E.2d 770 (1970); State v. Schlagel, Mo.Supr., 490 S.W.2d 81 (1973).

III

Finally, we consider an argument based upon the Trial Judge's instructions to the jury in answer to a question asked after deliberation had begun.

After retiring the jury sent to the Court a note asking, '. . . could you please clarify in terms of years what life imprisonment means?' The Court reviewed the matter with counsel and then answered the question as follows:

'I will just read portions of a statute, which is 11 Delaware Code, Section 4346. It merely says that for all purposes, a person sentenced to imprisonment for life shall be considered as having been sentenced to a fixed term of forty-five years.

Let me ask you this: Are there any further questions? If there are, I pass you this pad and you can write them down.'

In response to one such question ('Would a minimum sentence, say, of three years mean the person would have to serve the whole three years?'), the Court stated:

'You are asking about the minimum sentence. That's the minimum, not the maximum, a minimum of three years. If we sentence to a minimum of three years, as far as we are concerned, that would be the sentence. But this does not take into account procedures subsequent to sentencing such as what a Pardon Board action might do or Parole Board action might do or what the prison may do in reduction of sentence in accordance with good time served with which this Court has no connection. In other words, our function is to give the sentence. What happens after our function is really--It's the concern of the Court, but it is not our jurisdiction, you see. Is there anything else?

Before verdict defendant moved for a mistrial on the ground that reference to pardon, parole or other post-conviction remedy was improper. The motion was denied and the jury returned a verdict of guilty of rape, without a recommendation of mercy. The sentence of life imprisonment, mandatory without a mercy recommendation, ⁵ was imposed. Defendant...