Weekley v. State

• Decision Date: 06 September 1966
• Citation: 222 A.2d 781
• Parties: Wilbert A. WEEKLEY and Edward J. Mayerhofer, Defendants Below, Appellants, v. The STATE of Delaware, Appellee. Thomas H. WINSETT, Defendant Below, Appellant. v. The STATE of Delaware, Appellee.
• Court: United States State Supreme Court of Delaware

Page 781

222 A.2d 781

Wilbert A. WEEKLEY and Edward J. Mayerhofer, Defendants Below, Appellants, v. The STATE of Delaware, Appellee.

Thomas H. WINSETT, Defendant Below, Appellant. v. The STATE of Delaware, Appellee.

Supreme Court of Delaware.

Sept. 6, 1966.

H. James Conaway, Jr., of Young, Conaway, Stargatt & Taylor, Wilmington, for Thomas H. Winsett.

C. Waggaman Berl, Jr., of Berl, Potter & Anderson, Wilmington, for Wilbert A. Weekley.

Arthur J. Sullivan, of Morris, James, Hitchens & Williams, Wilmington, for Edward J. Mayerhofer.

F. L. Peter Stone and Michael N. Castle, Deputy Attys. Gen., for the State.

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

CAREY, Justice.

These appeals attack sentences imposed by the Superior Court after verdicts of guilty by a jury. Appellant Winsett was found guilty of murder in the first degree, with a recommendation of mercy; appellants Weekley and Mayerhofer were found guilty as accomplices. They seek reversals with instructions to direct the entry of judgments of acquittal or, in the alternative, to grant new trials. Their charges of error may be thus summarized: (1) the Court below erred in denying motions challenging the array of the Grand Jury and requesting a voir dire examination of the panel members; (2) the Court erred in denying postponement of trial requested because of the existence of prejudice caused by widespread publicity; (3) the Court erred in admitting into evidence defendants' oral and written statements; (4) as to Weekley and Mayerhofer, the Court erred in denying motions for acquittal; (5) as to Winsett, the Court erred in denying an application for separate trial; (6) as to Winsett, the verdict was based upon insufficient evidence.

The evidence presented by the State, including statements given to the police by defendants, justified a finding of the following facts: The victim was a State Trooper who, in company with a fellow officer, had gone to a motel on Route 13 near Wilmington in response to a complaint received in the early morning hours of October 17, 1963. His death was the result of a shot fired by Winsett.

The three defendant had come to Delaware from New York the evening before for the purpose of stealing television sets from motels. Winsett arrived first in a pontiac car; the others came later in a Cadillac. They registered at several motels. During the night they took some television sets from one or more motels, putting them in the Cadillac. They left that car parked at a diner, and went in the Pontiac to the motel where Winsett had taken a room. There they stole three sets, placing them in the rear of the car. Winsett then got into the middle of the front seat and Mayerhofer into the driver's seat. Weekley was about to get into the right side when he saw the officer coming and yelled 'Here comes someone.' The officer called to them to stop, that he was a State Policeman, and pulled out his pistol while walking or running toward the car. Winsett pulled a shot gun from under the front seat and fired at the officer, who then fired several times. One bullet 'creased' Weekley's forehead. Winsett again fired and the officer fell to the ground, mortally wounded. The defendants then drove away. The car itself had been hit by the officer's bullets, and defendants soon abandoned it not far from the motel, and ran off into an undeveloped woody area between Route 13 and the Delaware River where they remained for about thirty-six hours until apprehended. Twice during this period Mayerhofer alone went to a nearby diner and brought back sandwiches and drinks. On his second visit he saw the headlines of a newspaper showing photographs of the other two defendants and stating that a manhunt was on for them as suspects in the killing.

Apprehension of the defendants occurred on October 18 about 5:30 P.M. They were first found by three police officers, who were quickly joined by several others. They were told to lie down on their stomachs. Two of them complied, but Winsett lay on his back. An officer told him to turn over on his stomach and either nudged or kicked him with his foot, depending on whose testimony is believed. The defendants were then searched and handcuffed, then escorted to separate police cars.

On the way to one of the cars, an officer asked Winsett who had shot the deceased; he identified himself as the shooter but indicated that he did not know the victim was an officer at that time since the latter was not in uniform. In the car in which Winsett was riding, some questions were asked him concerning weapons and Winsett stated that he had hidden two pistols near the point of apprehension. He agreed to help officers to find them. He also said that the shot gun had been thrown out of the car along the road before the car was abandoned. A shot gun was later found in that area. After he had agreed to help to find the pistols, the officers took him back to a place near the scene of apprehension where two pistols were found. The party then proceeded to the nearby police station.

Weekley rode to the same station with two officers. On the way, he named Winsett as the person who shot the officer and related certain other things which he said occurred at the time of the shooting. Mayerhofer also made a similar statement to the two officers with whom he rode to the station.

At the police station, defendants were questioned and written statements taken, which will be discussed later herein. They were ultimately taken before a committing magistrate about 3:00 A.M. on October 19 and were held for trial.

I.

Defendant's first argument is that the Court erred in denying their application to question the members of the Grand Jury panel on voir dire and their challenge to the array of Grand Jurors. Their contentions are (a) that they were entitled to have the case passed upon by an unprejudiced and unbiased Grand Jury; (b) that, because of extensive publicity during the twenty-day period between arrest and indictment, an 'impartial Grand Jury was impossible'; (c) that in any event they should have been granted a voir dire to determine whether the jurors were prejudiced, whether they were legally qualified to serve, and whether they had been drawn in compliance with our statutes governing selection of Grand Jurors. The Court below (State v. Winsett, Del.Super., 200 A.2d 692) held that bias or prejudice of a member of the Grand Jury is not ground for challenge, because that jury is an accusatory and not a judicial body which in fact had the right and duty to act upon its own information, however acquired. The members are sworn to present no person for envy, hatred or malice, to leave no person unpresented because of fear, favor, affection, reward or hope of reward, and 'to present all things truly as they come to your knowledge.'

The cases cited by defendants are not in point. Some of them deal with challenges of petit jurors; others deal with challenges to the array of Grand Jurors because of a failure to follow constitutional or statutory requirements designed to prevent discrimination in the selection of Grand Jurors. None of them holds that bias or prejudice is a ground for challenge. On the other hand, many cases hold that challenge may not be made on this ground in the absence of constitutional or statutory provision. 4 Anderson's Wharton Crim.Law and Proc. 434; United States v. Knowles, D.C., 147 F.Supp. 19.

Challenges of Grand Jurors in this State are governed by Superior Court Criminal Rule 6, Del.C.Ann., which is very similar to the Federal rule bearing the same number. The array may be challenged on the ground that the panel was not selected, drawn or summoned in accordance with law; individual members may be challenged on the ground that they are not legally qualified. The only statutory qualification is that the juror be qualified to vote at the general election. 10 Del.C. § 4504.

In this case, defendants made no specific allegation either that the panel was improperly selected or summoned, or that any member was unqualified. Apparently they believed that some defect might be discovered through a voir dire. We are not aware of any instance in this State of the use of voir dire as to a Grand Jury; none appears in our reports. In Brown v. Commonwealth, 76 Pa. 319, the Court denied the existence of such a procedure, and pointed out that, if it were followed by every person indicted, the criminal courts could not carry out their business. In United States v. Knowles, supra, which arose after the adoption of the present Federal rules, it was held that no voir dire examinations exist in respect to Grand Jurors, and that their status may not be questioned except for lack of legal requirements. This case was cited and quoted with approval in Estes v. United States, 5 Cir., 335 F.2d 609, cert. den. 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559. We think these holdings are sound and accept them as the law of this State.

We find no error in the ruling of the Court below on this point.

II.

Defendants next complain of the refusal to grant a postponement of the trial. The killing occurred on October 17 and the indictments were returned on November 6, 1963. Defendants were arraigned and pleaded not guilty on November 22. The next term of Superior Court commenced early in December. These cases were continued to the March Term because of pending motions. In March they were continued to the June Term. On May 19, the Court informed counsel that trial would commence on June 8. On the morning of the trial date, defendants requested a further continuance which was denied. The trial thus commenced about seven months after defendants were indicted. The argument made here is that, because of great adverse newspaper and radio publicity, defendants could not obtain a fair and impartial petit jury at that time, and that further delay in starting the trial would have given the effect of this publicity an opportunity to abate, thereby improving the...