Wilson v. State

• Decision Date: 06 March 1973
• Citation: 305 A.2d 312
• Parties: Isaac WILSON, Jr., et al., Defendants Below, Appellants, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 312

305 A.2d 312

Isaac WILSON, Jr., et al., Defendants Below, Appellants, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

March 6, 1973.

Upon appeal from the Superior Court.

Louis L. Redding, Wilmington, for appellant Isaac Wilson, Jr.

William J. Alsentzer, Jr., of Bayard, Brill & Handelman, Wilmington, for appellant William Gist.

L. Vincent Ramunno, Wilmington, for appellant Ronald Payne.

James A. Erisman, Deputy Atty. Gen., Wilmington, for appellee.

CAREY and HERRMANN, Justices; and SHORT, Vice-Chancellor, sitting.

CAREY, Justice:

After a jury trial in Superior Court, the appellants, Isaac Wilson, William Gist and Ronald Payne, were convicted of conspiracy and each was sentenced to imprisonment for five years. They have appealed from that conviction and sentence.

Originally, the indictment included certain other charges, but the jury failed to reach an agreement as to them. Two other persons, Arnold Stewart and Kevin Hall, were included in the indictments, but they were later granted immunity and testified for the State.

On the night of February 18, 1970, two police officers were patrolling the streets of Wilmington in a police car. About 11:45 p.m., someone fired a shot which wounded one of these officers. The ensuing investigation was lengthy and resulted in the arrest of the persons mentioned above.

At the trial, the State presented evidence tending to show that the appellants and others met early in the evening at the home of a Mrs. Simmons, where they made plans to shoot a police officer; that they had brought guns with them; that they soon departed, but returned later, again leaving about 11:00 p.m. taking the guns with them. The State's testimony identified Wilson as the one who fired the shot which hit the officer.

The appellants presented evidence of alibis. Wilson, who had recently been discharged from military service, contended that he spent the whole evening at home, except for a few minutes when he left to get milk for his baby at a nearby store. His story was supported by his wife and a friend. Gist and Payne testified that they were playing basketball at a community center throughout the evening and at no time left that center until midnight, when it closed. Several witnesses supported their alibis.

The appellants raise numerous arguments for reversal involving sufficiency of the evidence, alleged errors occurring during the trial, the Court's charge, the verdict, and the sentences imposed. We discuss them in that order.

I

Appellants insist that the evidence was insufficient to justify the finding of a conspiracy. The principal witness for the State was Kevin Hall, whose testimony is strongly attacked by appellants. He had been given immunity both in this case (although he admitted participation in the conspiracy), as well as in a completely different case involving a murder charge. His testimony was as follows: he was at the residence of Mrs. Simmons 'from 6:00 on up', and Ronald Payne, Isaac Wilson, Ronald Hall and William Gist came in with a bag of guns and one of them said he 'was going to pluck off a cop.' Kevin said that he was going with them. After further conversation, they divided the guns and left the house and he, Ronald Hall, and Isaac Wilson went behind a building and Wilson shot at the police. He did not know where Payne and Gist were at this time. They all went to his house after the shooting, where he, Ronald Hall and Ronald Payne stayed, although the others left very shortly. On cross-examination, Kevin admitted that on various prior occasions, he had accused Wilson, Arnold Stewart and Ronald Hall of firing the shot. He also admitted having made a prior statement that he was not personally present at the shooting. At some time prior to the trial, the police took a tape recording from Kevin, in which he told a story very similar to that which he gave on the stand, except that in the recording he named Stewart as the one who shot the gun. He said that he had accused Stewart because he had been told that Stewart had accused him (Kevin) of the shooting.

On the night of these events, Mrs. Simmons had gone out, leaving her small children with Lillian Wilkes, a young girl who lived at the Simmons home. Miss Wilkes agreed that the young men named by Kevin came in the house that evening, went into the kitchen and closed the door. She testified that she saw some guns in the room where the boys were talking; that they left through the back door about 11:00 p.m.; that, as they did so, she entered the kitchen and turned on the light, but one of the boys told her to cut it off. She testified that about two months after the shooting, Wilson admitted to her that he was the 'trigger man.' She admitted that, at some time before the trial, the police had given her some money.

Vera Simmons testified that, when she returned to her home about 12:30 p.m., Payne was present, but soon left.

The alibi testimony given on Gist's behalf was contradicted by testimony of two police officers (not those in the car that was shot at), who testified to seeing Gist on the street within an hour or less prior to the shooting.

In Bland v. State, Del.Supr., 263 A.2d 286 (1970), we held that corroboration of accomplice testimony is not an absolute necessity, but that the trial Court has the power to remove the case from the jury's consideration in some instances. One such instance would be where there is irreconcilable conflict in the State's case concerning a defendant's guilt. The Bland case was very unusual in that the State's testimony depended almost entirely on testimony of two accomplices whose stories differed in important respects, and we concluded that the Judge should have directed a judgment of acquittal. Other factors dictated the same result. In the present case, however, the State's case does not depend entirely upon accomplice testimony. There is no suggestion that Miss Wilkes had anything to do with planning a shooting. Her testimony verifies some of Kevin's testimony. Some support for it is also found in Stewart's testimony. He was at the house, according to his statements, when the discussion took place, although he stayed in another room and took no part in it. He heard nothing said about shooting. His testimony, if believed, places these appellants at the Simmons house, as against their alibi testimony.

Unlike the Bland case, Supra, Kevin's evidence as to the presence of these appellants during the planning of the shooting is supported in part by both Wilkes and Stewart, neither of whom took any part in the planning or execution of the plan. The evidence was sufficient to justify submission to the jury, whose function includes determination of its credibility. Hutchins v. State, Del.Supr., 2 Storey 98, 153 A.2d 204 (1959).

II(A)

The next contention is that the trial Court erred in permitting only a portion of the tape recording of Kevin to be heard or a transcript thereof to be read by the jury. As indicated above, this recording was made some time prior to trial. It included a number of statements which had no relevancy. The part which the jury was allowed to hear contained all matters which were properly admissible, including everything that was inconsistent with what Kevin said personally on the stand. We have listened to the entire cassette and, in our opinion, exclusion of the immaterial and irrelevant portions was not error. The authorities cited by appellants do not convince us that the trial Judge's ruling constitutes reversible error.

II(B)

The appellants advance three reasons for their contention that they were deprived of their right to a fair trial. The first has to do with a news item which appeared on the front page of a Wilmington paper during the trial. A night or two after the witness Wilkes had testified, she was attacked by some unknown persons on the street. The next day's paper contained an article on the front page concerning the attack; in it was mentioned the fact that she had previously testified for the State in this case. When the Court opened on the day that the article appeared, counsel called this matter to the attention of the trial Judge. He thereupon inquired of the jurors whether any of them had seen and read the article, examining each juror individually out of the presence of the others. None of the jurors had read the article, but one stated that his wife had mentioned it to him. That juror was then asked a number of questions about the possible effect of this information upon his view of the case. Apparently all the participating attorneys were satisfied that the juror was qualified to continue because none of them requested his dismissal. They thereby waived any objection to his continuing to serve. This objection cannot be raised in this Court for the first time.

II(C)

It is next argued that certain remarks of the prosecution attorney to the jury were prejudicial. It will suffice to say that we find no merit in this contention.

II(D)

The appellants complain that the trial was conducted under such conditions as to have an adverse effect upon the minds of the jurors. Apparently the Court had been informed, some days prior to the commencement of trial, of the possibility that there might be some disorder in the courtroom or in the courthouse. Apparently the Court also had reason...