Whalen v. State

• Decision Date: 10 January 1980
• Parties: Frank Cole WHALEN, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 1346

434 A.2d 1346

Frank Cole WHALEN, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted Jan. 10, 1980.

Re-submitted on Supplemental Briefing July 30, 1980.

Decided in Part Dec. 15, 1980.

Submitted on Motion for Reargument Jan. 19, 1981.

Decided on Motion for Reargument and Matter Reserved for

Decision July 6, 1981.

Upon appeal from Superior Court. Affirmed, in part; Reversed, in part; and Jurisdiction Reserved, in part.

Nancy Jane Mullen (Argued), and Richard E. Fairbanks, Jr., Asst. Pub. Defenders (Argued), Wilmington, for defendant below, appellant.

Dana C. Reed, Deputy Atty. Gen. (Argued), James E. Liguori, Deputy Atty. Gen. (Argued), Dover, and Richard A. McMahon, State Prosecutor, Wilmington, for plaintiff below, appellee.

Before HERRMANN, C.J., DUFFY, McNEILLY, QUILLEN and HORSEY, JJ., constituting the Court En Banc.

McNEILLY, Justice:

The defendant, Frank Cole Whalen, Jr., was indicted, tried and convicted by a Superior Court jury 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)). ¹ Following his conviction of Murder First Degree a separate penalty hearing was held pursuant to 11 Del.C. § 4209. The jury recommended the death penalty. The Trial Judge accepted this recommendation and imposed the death penalty on the murder conviction together with separate sentences on the convictions of rape and burglary. Defendant appeals his convictions and the imposition of the death penalty. Multiple errors are asserted by defendant which will be considered seriatim.

Briefly stated, the charges against defendant arose out of the rape and murder by strangulation of Elva D. Kemp shortly after 10:00 P.M. in the evening of August 27, 1977. Mrs. Kemp was a petite five feet four, seventy-five pound lady ninety-three years of age. The attack occurred in the Kemp home at Clayton, Delaware, where Mrs. Kemp and her ninety-three year old blind, and almost totally deaf, invalid husband were sleeping peacefully in their bedroom.

The twenty-one year old, six foot tall, one hundred seventy-five pound defendant, Frank Cole Whalen, Jr., was a gainfully employed high school graduate. He lived in a basement apartment across the street from the Kemp residence with his wife and young child. The defendant's uncle and aunt lived next door to the Kemps, and Mr. William Whalen, the uncle, for several months prior to Mrs. Kemp's murder had daily assisted Mr. Kemp out of bed in the early morning and helped him back to bed in the evening. It was Mr. William Whalen who discovered Mrs. Kemp's semi-nude body on her bed the morning after her murder, and at the same time found Mr. Kemp lying helplessly on the floor beside his bed.

TRIAL

I

In preparing for jury selection the defendant submitted fifty-eight questions ² to the Court for preliminary submission to the entire jury panel prior to the drawing of prospective jurors who, in a criminal case in which the death penalty may be imposed, are individually interrogated on voir dire and thereafter individually sworn or discharged as the case may be. The Trial Judge rejected all questions requested and further denied defense counsel the privilege of questioning each individual prospective juror. Instead, the Trial Judge propounded his preliminary questions to the entire panel, removed certain names after responses were made, then continued with the individual selection process. After the names of those who had not responded were exhausted without filling the number to be selected, the Trial Judge began individual selection and questioning of those who had responded. ³ During jury selection, if counsel was not satisfied with the answers given by prospective jurors to the Trial Judge's questions, each side was given an opportunity to request additional questioning. In some instances the Trial Judge asked additional

questions to those required by statute, and when he did not, counsel appear to have been satisfied. ⁴

The examination of prospective jurors and the limitations imposed thereon is vested within the broad discretion of the Trial Judge and, "... as a general rule, in the exercise of the discretion vested in him by (Superior Court Criminal) Rule 24(a), the trial judge should reserve to himself the function of interrogating prospective jurors upon voir dire examination as heretofore; provided, however, that reasonable opportunity be accorded to counsel to submit to the trial judge requested questions to be asked the prospective jurors, to be accepted or rejected by the judge in the exercise of a sound judicial discretion." Parson v. State, Del.Supr., 275 A.2d 777, 784 (1971). We find no error in the Trial Judge's ruling denying counsel's request to individually question prospective jurors.

At first blush, however, the Trial Judge's refusal to propound at least those questions submitted by the defendant to be asked the full panel of prospective jurors relating to the nature of the offense, age of the victim and other surrounding circumstances which might tend to ferret out possible prejudice, evidences an attitude of "forget the minor details, let's get on with the work at hand," despite the nature of the case and substance of the questions submitted. ⁵

With this in mind we examined carefully the selection of each juror, noting also that:

"The purpose of the voir dire examination of prospective jurors is to give the trial judge sufficient information to determine whether or not a prospective juror is qualified. In addition, it aids the State and the defendant by eliciting facts upon which they can exercise intelligently rights to peremptory challenges. Any limitation imposed by the trial judge upon defendant's right to have prospective jurors questioned will not constitute reversible error unless the broad discretion reposed in the trial judge has been clearly abused to the prejudice of the defendant." Parson v. State, 275 A.2d at 780-81.

Having carefully scrutinized the jury selection we are satisfied that the Trial Judge acted properly within his discretionary powers and therefore reject defendant's contention that the Trial Judge abused his discretion in declining to submit defendant's requested questions to the panel and in declining to permit counsel to personally examine prospective jurors.

II

Defendant contends the Trial Judge erred in admitting defendant's oral and written inculpatory statements because the State did not meet its burden of establishing that they were obtained in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny, or were otherwise voluntary.

It appears in the record that after interviewing a number of persons in the area concerning the Kemp murder, the police focused their attention upon three people as possible suspects. One of the three was Frank Cole Whalen, Jr. On Monday, following the Saturday night murder, the police called Mr. Whalen at his home around midnight and asked him to come to the Clayton Town Hall for questioning regarding the Kemp murder. Following the initial call Mr. Whalen called back to verify that it was the State Police and that they were at the Town Hall. A few minutes later Mr. Whalen's father called the Town Hall asking if the police wanted to see his son that evening or in the morning. At approximately 12:30 A.M. Mr. Whalen and his father appeared at the Town Hall and were met in front of the building by Detective Collison of the Delaware State Police. Detective Collison advised Mr. Whalen that he was there to be interviewed regarding the murder and burglary at the Kemp residence and secondly, that he would be asked

if he would take a polygraph test. Although denied by defendant, Detective Collison testified that he explained the Miranda rights to Whalen at that time. The interview was not completed, however, because Detective Collison was called away. Before parting it was agreed that Mr. Whalen would return later in the day to continue the interview. In the meantime, Detective Collison was to arrange for the polygraph test. ⁶

The next contact with Mr. Whalen occurred at approximately 6:45 P.M. that evening when Mr. Whalen, his wife and child, and his mother and father arrived at State Police Troop 3 after being contacted by Chief Bowers of the Clayton Police Department. In the meantime, Mr. Whalen and his wife had gone to Dover to keep a doctor's appointment during which Mrs. Whalen was advised that she was pregnant, to the great financial concern of Mr. Whalen, who claims he became upset and sought solace drinking vodka. No evidence appears in the record, however, that Mr. Whalen was intoxicated that evening. At Troop 3 Mr. Whalen was met by Detective Collison who took him to the polygraph room. The testing officer, Detective Bisbee, first filled out a pretest general information form, explained the polygraph procedure to Mr. Whalen, and presented a waiver form to Mr. Whalen which included all Miranda warnings except the right to have counsel present. ⁷ Mr. Whalen signed the waiver and testing was then begun.

According to Detective Bisbee's testimony, after asking a series of questions, the following occurred:

Q. Did you ask him anymore questions?

A. No. At that time I shut the instrument off due to his emotional condition.

Q. How long did it take you, roughly, to ask those questions and get those answers?

A. Approximately two, two-and-a-half minutes.

Q. When you say at that point you shut the instrument off due to his emotional condition, would you describe to the jury what you mean by that?

A. At the tenth question he began crying and appeared emotionally upset.

Q. Did you ask him anymore questions along those lines, the lines of the questions you had been asking him?

A. No further questions as far as a "Yes" or "No" answer.

Q. Did Mr. Whalen compose himself or continue crying?

A. I don't recall...