Washam v. State

• Decision Date: 25 October 1967
• Citation: 235 A.2d 279
• Parties: Lamont WASHAM, Defendant Below, Appellant, v. The STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 279

235 A.2d 279

Lamont WASHAM, Defendant Below, Appellant, v. The STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Oct. 25, 1967.

Peter J. Walsh, of Connolly, Bove & Lodge, Wilmington, for appellant.

Francis A. Reardon, Deputy Atty. Gen., for appellee.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

CAREY, Justice:

The defendant below, Lamont Washam, has appealed from a conviction and sentence for fourth degree burglary, which is the breaking and entering of a building with intent to commit a crime therein. T. 11 Del.C. § 395. He contends that at his trial the prosecuting attorney made two objectionable and prejudicial remarks.

The alleged offense occurred shortly before midnight on February 13, 1966 at the property of Aims, Inc. on New Castle Avenue near Wilmington. A burglar alarm which was connected to the safe in the building went off about 11:30 P.M. The manager, who was not far away, immediately called the police. Two officers promptly went to the scene where they discovered that a glass panel about three feet square had been broken out of the front of the building. After entering, they found the appellant and his co-defendant hiding behind a refrigerator. The defendants were reluctant to leave their hiding place, but finally came out after the police had several times ordered them to do so. They refused to answer any questions or even to state their names to the arresting officers.

At the trial, the two defendants testified that they had been at a party where an altercation had arisen between them and a group of ten to fifteen young men; that they had fled therefrom and were chased by the other persons; that, when they reached the Aims property, they saw the opening in the glass front and entered the building to elude their pursuers; that, when ordered to come out of their hiding place, they did not immediately do so because they were scared. They gave no explanation for failing to tell the police the reason for their presence.

The first remark complained of arose in this manner: In his summation, defense counsel argued that the State had not proved a breaking by these defendants nor had it proved an intent to commit any crime in the building. The prosecuting attorney in his summation said:

'There are no missing links in this case or I wouldn't be standing here. The Judge would have directed a verdict if there were any missing links of a substantial element of this offense'.

The other remark here questioned came about this way: Defense counsel argued that the hesitation of defendants to leave their hiding place was a normal reaction of wanting to avoid contact with the police. He said:

'This is a natural reaction for a kid from the time he is ten years old up to the time he is an adult'.

The prosecuting attorney later said:

'The burglar alarm sounded. Within minutes you had two men groping in the dark with a gun in their hand looking for what? Two scared boys because some juveniles were chasing them? Two scared boys, as counsel would say, since they were ten years old when they have been running from the police?'

The first remark quoted above is much like the one condemned by this Court in Robelen Piano Company v. Di Fonzo, 3 Storey 346, 169 A.2d 240. Its tendency was to insinuate that the trial Judge believed the defendants guilty. Even though made inadvertently in the heat of trial, it was nevertheless objectionable and the jury should have been cautioned to disregard it and counsel admonished. Every case brought to our attention in which a similar statement was made agrees with this holding. Wideman v. State, 40 Ala.App. 5, 110 So.2d 295; United States v. Schwartz, 3 Cir., 325 F.2d 355; State v. Cortez, 101 Ariz. 214, 418 P.2d 370; State v. Stegner, 276 Mo. 427, 207 S.W. 826; Adkins v. State, 38 Ala.App. 659, 93 So.2d 519; Martin v. Commonwealth, 255 Ky. 529, 75 S.W.2d 13; Robinson v. United States, 8 Cir., 32 F.2d 505, 66 A.L.R. 468. Other cases are annotated in 127 A.L.R. 357. Even without an objection, there was error in the failure to strike the statement and admonish counsel.

As to the second remark quoted above, appellant contends that it implied that defendants themselves had been running from the police since they were ten years old, i.e., that they had committed other crimes in the...