Whalen v. State

Decision Date02 July 1984
Citation492 A.2d 552
PartiesFrank Cole WHALEN, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
CourtSupreme Court of Delaware

Upon appeal from Superior Court. Death sentence vacated and remanded for a new penalty hearing.

Nancy Jane Mullen (argued), J. Dallas Winslow, Jr., Patricia C. Hannigan, Asst. Public Defenders, Wilmington, for appellant.

Kevin O'Brien (argued), Deputy Atty. Gen., Wilmington; James E. Liguori, former Deputy Atty. Gen., Dover, for appellee.

Before HERRMANN, C.J., McNEILLY, HORSEY, MOORE and CHRISTIE, JJ., constituting the Court en Banc.

MOORE, Justice:

Frank C. Whalen was convicted of Murder First Degree, Rape First Degree and Burglary First Degree. He was sentenced to die. On appeal this Court affirmed his convictions, but reversed the death sentence and remanded the case for a new penalty hearing. Whalen v. State, Del.Supr., 434 A.2d 1346 (1981) cert. denied, 455 U.S. 910, 102 S.Ct. 1258, 71 L.Ed.2d 449 (1982) (hereinafter, Whalen I ). At that later proceeding the death penalty was reimposed, and Whalen again appeals that sentence.

Numerous grounds for reversal are urged by the defendant. We accept certain of them, limiting our decision to the following: The trial judge improperly reimpaneled the original jurors more than four years after they participated in the first constitutionally defective penalty hearing; there was an inadequate voir dire of the jury prior to the second penalty hearing; and the jury was not adequately instructed on either the applicable Delaware law or the jury's role in applying that law under 11 Del.C. § 4209. 1 However, we reject the argument that imposition of the death penalty for a felony murder is per se unconstitutional. In view of the foregoing reversible errors, we again vacate the defendant's death sentence and order a new hearing on that issue.


Whalen's convictions of Murder First Degree, 11 Del.C. § 636(a)(2), Rape First Degree, 11 Del.C. § 764(1), and Burglary First Degree, 11 Del.C. § 826(2), arose out of the rape and murder by strangulation of Elva D. Kemp, who was ninety-two years old and weighed seventy-five pounds. The attack occurred late one night in Mrs. Kemp's home where she lived with her invalid husband.

In Whalen I, this Court held that the original penalty hearing was defective because the jury was permitted to consider unconstitutionally vague statutory aggravating circumstances. Specifically, the jury had been instructed that a necessary statutory aggravating circumstance would be established if it found that the victim was "elderly" or "defenseless". However, in State v. White, Del.Supr., 395 A.2d 1082 (1978), this Court had earlier held that the terms "elderly" and "defenseless" were unconstitutionally vague. Furthermore, in Whalen I the jury had failed to identify and specify the statutory aggravating circumstances relied upon in imposing the death penalty as required by this Court's interpretation of § 4209(e). Whalen I, 434 A.2d at 1360 citing State v. White, Del.Supr., 395 A.2d 1082 (1978). The matter was remanded for a new penalty hearing.

After that ruling the defendant sought reargument to determine whether the new hearing should be before the original jury. The State joined in requesting this Court to address that issue. Moreover, it was the State's position, later followed by it in the trial court, that a completely new jury should be impaneled. This Court subsequently stated in a supplemental opinion that "[w]e have determined that this question should, in the first instance, be presented to the Superior Court for resolution". Whalen, 434 A.2d at 1370 (Supplemental opinion) (emphasis added).

Thereafter, the subject was handled in a brief office conference between the trial judge and counsel immediately before the second hearing. The positions of the defendant and the State were overruled, and the original jury was ordered reimpaneled for the new punishment hearing. Pursuant to the trial judge's suggestion made at the conference, all objections were held until the end of the trial when they were to become part of the record. However, no transcript exists of anything that occurred at this conference.

Prior to the second penalty hearing, the defendant requested that before the same jury was reimpaneled the court conduct individual voir dire of each juror. The defendant submitted a list of twenty-six proposed questions designed to elicit facts indicating that the jurors' service in the original trial, or events arising during the intervening 4 1/2 years, would affect their ability to reach a fair and impartial verdict. The trial judge refused to conduct individual voir dire or to use any of the defendant's proposed questions, noting that "[m]ost of them [the proposed questions] will be asked in effect".

The trial court then made the following statement to the reimpaneled jury in lieu of individual voir dire:

Ladies and gentlemen, you have been summoned in order that we can have a new penalty hearing in the case of State vs. Frank C. Whalen, Jr. It is proper for you to recall the trial of this defendant, but it is required that you put out of your mind the prior penalty hearing. Since that hearing, new guidelines have been established and a new hearing is required. It is necessary that you approach this hearing impartially and with an open mind and fix the penalty to be imposed based only upon what you hear and see at this hearing.

Is there any reason why any juror cannot be impartial and give the defendant a fair hearing regardless of what you may have previously seen, read or heard?

That was the extent of the voir dire, and the penalty hearing commenced when no jurors responded to the judge's inquiry.

After both the State and the defense had finished presenting their evidence and had made their closing statements, the Court instructed the jury as follows:

Ladies and gentlemen, the sole matter for your determination at this time is the penalty to be imposed upon the defendant for the conviction of first degree murder.

You have heard counsel for the State and the defendant express their positions on which penalty should be imposed. While it is proper for you to consider the position of each attorney upon this issue, the matter is entirely within your discretion after considering the evidence and applying the law contained in these instructions.

In reaching your determination, the jury may consider any mitigating or aggravating circumstances raised by the evidence either at this hearing or at the trial.

The sentence of death shall not be imposed unless you find unanimously and beyond a reasonable doubt at least one statutory aggravating circumstance and then unanimously recommend after weighing all the relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender that a sentence of death be imposed.

You may consider the following statutory aggravating circumstance: In this case the murder occurred during the commission of rape.

A recommendation of death is binding upon the Court. If you do not recommend the death penalty, a sentence of life imprisonment without benefit of probation or parole will be imposed.

A reasonable doubt is defined as a substantial doubt.

I will hand you a copy of these instructions and a questionnaire which your forelady will fill out. It is self-explanatory, and when you return to the courtroom it will simply be handed to the clerk and read in open court by me.

As the judge stated, the forelady was handed a copy of the jury instructions and a questionnaire. The questionnaire, or interrogatories to the jury, required the forelady to check yes or no after the following statement:

Does the jury unanimously find beyond a reasonable doubt that the following statutory aggravating circumstance existed?

1. The murder occurred during the commission of rape.

If the answer "yes" was checked, the forelady was to check yes or no after the following question:

1. Does the jury unanimously recommend that a sentence of death be imposed?

All jurors were then to sign the form on the lines provided.

The defendant's objections to all aspects of the penalty hearing were first heard by the court after the jury retired for deliberation. Included were objections to the manner in which voir dire was conducted, and to the instructions given the jury.

After an hour and thirteen minutes of deliberation the jurors returned a unanimous verdict of death based on the statutory aggravating circumstance that the murder occurred during the commission of a rape. The judge reimposed the death sentence and set the date of execution.


The defendant appeals on numerous grounds.


A major issue is the reimpaneling of the original jury over 4 1/2 years after the first trial, without any meaningful voir dire, and with little if any consideration given to the joint position of the defendant and the State that a new jury be selected. In his ruling the trial judge merely said that: "11 Del.C. § 4209(b) clearly states that the punishment hearing after a conviction of first degree murder 'shall' be before the jury that convicted the defendant".

We agree that in the typical situation, where the penalty hearing follows shortly after the determination of guilt, Section 4209 anticipates that the same jury will determine both issues. However, Section 4209(b) specifically refers to using a new panel when "a jury of 12 jurors cannot participate in the hearing". The trial judge apparently interpreted these provisions to apply only to the circumstance of physical impossibility, and failed to give any consideration to the legal and factual circumstances of juror disqualification. Such an interpretation was clearly erroneous.

This case was initially remanded for a new penalty hearing because of prejudicial error in...

To continue reading

Request your trial
54 cases
  • People v. Kimble
    • United States
    • California Supreme Court
    • February 25, 1988
    ... ...         [44 Cal.3d 487] ... Page 152 ... [749 P.2d 806] Donald Kerson, Deputy Public Defender, State Public Defender, San Francisco, for defendant and appellant ...         [44 Cal.3d 488] Robert F. Katz, Deputy Atty. Gen., Office of the ... (690 P.2d at p. 174.) ...         Whalen v. State (Del.1985) 492 A.2d 552, is similar to Durre. In Whalen the Delaware Supreme Court reversed a death sentence because, inter alia, the jury ... ...
  • DeShields v. State
    • United States
    • Supreme Court of Delaware
    • May 27, 1987
    ... ... State v. Ayers, Del.Supr., 260 A.2d 162, 169 (1969) ... 26 See Traylor v. State, Del.Supr., 458 A.2d 1170, 1178 (1983) ("organized traffic in illegal drugs is a serious problem ... fostering additional crimes") ... 27 As noted in Riley, the defendant in Whalen v. State, Del.Supr., 492 A.2d 552 (1985), was found guilty of committing murder during the commission of a violent rape rather than during the commission of a robbery as in the other death penalty cases ... 28 Elstad is inapposite because, there, the police failed to give the defendant his ... ...
  • Riley v. State
    • United States
    • Supreme Court of Delaware
    • July 9, 1984
    ... ... § 4209(e)(1)(j). 31 ...         Defendant argues that such dual use of the underlying felony of robbery is constitutionally prohibited because it places him in double jeopardy and subjects him to cruel and inhuman punishment ...         In Whalen v. State, 492 A.2d 552, this Court recently addressed and rejected these constitutional claims (first raised here on appeal). Id. at 565-69. (Whalen, convicted of Rape in the first degree and Felony Murder in the first degree, 11 Del.C. § 636(a)(2) [murder by strangulation], similarly contended ... ...
  • Sanders v. State
    • United States
    • Supreme Court of Delaware
    • October 12, 1988
    ... ... 11 Del.C. § 4209(d)(1). Unless the jury unanimously concludes that the aggravating circumstances outweigh the mitigating circumstances, the death penalty cannot be imposed. Whalen v. State, Del.Supr., 492 A.2d 552, 560 (1985) ...         As previously noted, the jury in this case was instructed that it could find an aggravating circumstance if it unanimously accepted the State's contention that "the victim was 62 years of age or older." In view of the fact that ... ...
  • Request a trial to view additional results
2 books & journal articles
  • The Delaware Death Penalty: An Empirical Study
    • United States
    • Iowa Law Review No. 97-6, October 2012
    • October 1, 2012
    ...v. State, 653 A.2d 266 (Del. 1995). Affirmed Executed 1962 IOWA LAW REVIEW [Vol. 97:1925 CASE NAME RESULT CURRENT STATUS Whalen v. State, 492 A.2d 552 (Del. 1985). Reversed-S Life in Prison Wright v. State, 671 A.2d 1353 (Del. 1996), cert. denied , 517 U.S. 1249 (1996). Affirmed On Row Clar......
  • To act or not to act: will New York's defeated death penalty be resurrected?
    • United States
    • Fordham Urban Law Journal Vol. 35 No. 5, October 2008
    • October 1, 2008
    ...N.E.2d 341, 367, 377 nn.4-5 (N.Y. 2004). In Delaware and Louisiana this requirement resulted from a judicial ruling. See Whalen v. State, 492 A.2d 552 (Del. 1985); State v. Williams, 392 So. 2d 619 (La. 1980). In Idaho, Missouri, Oregon, Pennsylvania, and Wyoming, this instruction was a leg......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT