Zimmerman v. State

• Decision Date: 13 April 1993
• Citation: 628 A.2d 62
• Parties: John P. ZIMMERMAN, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 62

628 A.2d 62

John P. ZIMMERMAN, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: April 13, 1993.

Decided: July 29, 1993.

Upon appeal from Superior Court. Affirmed in part, Reversed in part and Remanded for New Trial.

John S. Malik, (argued), Wilmington, for appellant.

Gary A. Myers (argued), Deputy Atty. Gen., Dept. of Justice, Georgetown, for appellee.

Before VEASEY, C.J., HORSEY, MOORE, WALSH and HOLLAND, JJ., constituting the Court En Banc.

HORSEY, Justice:

This criminal action stems from a dispute over restoration work to be performed on an automobile. Appellant, John Zimmerman ("Zimmerman"), appeals the judgment of the Superior Court upon convictions after jury trial of Assault Second Degree, Conspiracy Second Degree, Criminal Solicitation Second Degree and Attempted Extortion. Zimmerman contends that the trial court abused its discretion by not granting his motions for mistrial or new trial. Zimmerman also claims that the trial court committed error of law in refusing to instruct the jury as to defendant's affirmative defense of a "claim of right" to the charge of attempted extortion.

While we find that the Superior Court did not abuse its discretion in denying a mistrial or new trial, we find that the court committed error of law in its instructions on attempted extortion. Under the facts, defendant properly invoked 11 Del.C. § 847(a) entitling defendant to assert a claim of right defense. Accordingly, we affirm in part, reverse in part and remand for a new trial limited to the charge of attempted extortion.

I

In October 1989, defendant Zimmerman had his 1966 Chevrolet towed to Eric Frye's ("Frye") garage and the parties agreed that Frye would perform restoration work on the car. By April 1991, the parties' contractual relationship had soured, primarily because Zimmerman had paid Frye more than $3,000 but the work was not yet completed. As a result, Zimmerman retrieved his car and Frye agreed to refund him $1,200 of the amount already paid. Trouble arose a short time thereafter when, due to financial difficulties suffered by his garage, Frye did not pay Zimmerman the promised refund.

Shortly after he retrieved his car Zimmerman, dissatisfied that Frye had not refunded the money, commenced making telephone calls to Frye demanding the promised $1,200 payment. On May 29, 1991, Zimmerman and another man, identified at trial as Brian Resop ("Resop"), arrived at Frye's garage. Zimmerman entered the garage, allegedly mumbled something inaudible to Frye, and left the garage to stand in the surrounding yard area. Thereafter, Resop entered the garage and proceeded to assault Frye, breaking his nose, while Zimmerman as well as two other individuals, both friends of Frye, Greg Turcol ("Turcol") and Ed Pretko ("Pretko"), watched.

Once Resop fled the scene, Zimmerman re-entered the garage. According to Frye, Zimmerman asked Frye when he could expect to receive the $1,200 refund. Frye testified that Zimmerman then demanded an additional $400 because Zimmerman stated that he had paid Resop to break Frye's legs and Frye "got off easy" with only a broken nose. Frye further testified that when Turcol and Pretko inquired what was happening, Zimmerman told them to mind their own business. Zimmerman contends that Frye's testimony regarding these "statements" by him is unsupported by the record because he never made them.

Later on the same day of the beating, Frye received a telephone call from Zimmerman while Frye was at his father's place of business. Using a miniature tape recorder provided by his father, Frye recorded the latter portion of the conversation, without Zimmerman's knowledge, and unsuccessfully attempted to get Zimmerman to "confess" to either the assault or paying Resop to perform the beating. Frye further testified that, after Zimmerman was arrested, he received other phone calls from Zimmerman threatening Frye with harm if he testified at Zimmerman's trial for criminal assault.

Prior to trial, Turcol and Pretko told police that they believed Zimmerman was "crazy" and Turcol admitted that he feared Zimmerman. Pretko also gave the police a statement corroborating Frye's version of the assault. Pretko and Turcol also executed, at the request of Zimmerman's attorney, statements allegedly "exonerating" Zimmerman.

Also in its case-in-chief, the State, over defendant's objections, secured the admission into evidence of Frye's tape recording of his conversation with Zimmerman, which contained many obscenities uttered by both parties. The court excluded only that portion of the taped conversation which contained a racial expletive uttered by Zimmerman and directed at one of Frye's employees. The parties agreed that when the prosecutor played the tape before the jury, the racial slur would be omitted. Despite the court's later reminder to the State not to play the excluded portion of the tape, and the prosecutor's assurance that he would not, the State played the excluded portion of the tape as well. Zimmerman acknowledged that the playing was inadvertent, but nevertheless moved for a mistrial, which the court denied. The court then immediately issued a curative instruction to the jury. ¹

During counsel's review of the proposed jury instruction on the extortion charge, Zimmerman's attorney requested that the court instruct the jury on his asserted statutory affirmative defense of claim of right under 11 Del.C. § 847. The court declined to do so primarily on a finding of contrary legislative intent.

After the jury found Zimmerman guilty of one count each of Assault Second Degree, Conspiracy Second Degree, Criminal Solicitation Second Degree and Attempted Extortion, Zimmerman, seeking a new trial, contended that the State had violated his constitutional rights by the prosecutor's mistakenly permitting the jury to hear the racial slur. Superior Court, by memorandum opinion dated January 29, 1992, denied the motion and Zimmerman then appealed.

On appeal, Zimmerman raises two claims of error. First, Zimmerman renews his assertion that the State violated his constitutional rights when it permitted the statement containing the racial slur to be presented to the jury. Second, Zimmerman contends that the court committed legal error when it refused to instruct the jury on the affirmative defense of a claim of right to the charge of attempted extortion.

II

Zimmerman's constitutional claim is premised on the trial court's alleged abuse of discretion in denying his motions for mistrial and new trial. Zimmerman asserts that the State's concededly inadvertent playing of the racial slur violated his constitutional rights to due process and equal protection and denied him a fair trial. He originally relied on Dawson v. Delaware, 499 U.S. 946, 111 S.Ct. 1412, 113 L.Ed.2d 465 (1992), and Weddington v. State, Del.Supr., 545 A.2d 607 (1988). The State denies that any issue of race was injected into the trial by the State in its inadvertent playing of the racial remark, and in the alternative contends that under the three-part due process analysis articulated in Hughes v. State, Del.Supr., 437 A.2d 559, 571 (1981), the claim is without merit.

While a claim of constitutional error was originally asserted, Zimmerman now agrees that our standard of review is whether the trial court should be found to have abused its discretion in permitting the racial remark to be played before the jury. Hence, the Hughes harmless error analysis is determinative of this issue on appeal. ² See Hope v. State, Del.Supr., 570 A.2d 1185, 1189 (1990) (denial of motion for mistrial reviewed for abuse of discretion); McCloskey v. State, Del.Supr., 457 A.2d 332, 337 (1983) (motion for mistrial directed to sound discretion of trial judge); Hutchins v. State, Del.Supr., 153 A.2d 204, 206-07 (1959) (motion for new trial addressed to sound discretion of trial court). ³ Under an abuse of discretion standard, this Court will disturb a discretionary ruling of the trial court only when the ruling is based upon unreasonable or capricious grounds. See Chavin v. Cope, Del.Supr., 243 A.2d 694, 699 (1968); Pitts v. White, Del.Supr., 109 A.2d 786, 788 (1954).

We find that the Superior Court did not abuse its discretion in refusing to grant defendant either a mistrial or a new trial. We conclude that the court acted entirely properly by promptly giving the jury a cautionary instruction after the concededly unintended playing. ⁴ As a general rule, a curative instruction is usually sufficient to remedy any prejudice which might result from inadmissible evidence admitted through oversight. Edwards v. State, Del.Supr., 320 A.2d 701, 703 (1974). ⁵ The trial court fully complied with Edwards. By issuing an instruction following the prosecutor's mistake instead of granting a mistrial, the Superior Court reasonably exercised its discretion and cured any prejudice which may have resulted.

On motion for new trial the court also correctly applied the Hughes three-part analysis by considering the following factors: 1) the centrality of the issue affected by the alleged error; 2) the closeness of the case; and 3) the steps taken to mitigate the effects of the alleged error. Weddington, 545 A.2d at 612 (citing Hughes, 437 A.2d at 571). The record supports the court's findings of no prejudicial error denying defendant a fair trial.

III

We turn to the more difficult issue posed by the trial court's refusal to instruct the jury on a claim of right defense to the charge of attempted extortion. Zimmerman argues that this was error because he had established by a preponderance of the evidence that he had a right to be repaid the $1,200. Therefore, he was entitled, as a matter of law, to an instruction of "claim of right," as permitted by 11 Del.C. § 847(a). ⁶ Zimmerman also argues that such a defense was available for him to assert even though he denied any responsibility for the assault.

The court...