Opinion
No. 97, 2003.
Submitted: September 23, 2003.
Decided: December 3, 2003.
Superior Court of the State of Delaware in and for Sussex County, Cr. I.D. No. 9909027880.
Before VEASEY, Chief Justice, HOLLAND, BERGER, STEELE and JACOBS, Justices, constituing the Court en Banc.
ORDER
This 3rd day of December, 2003, on consideration of the briefs and arguments of the parties, it appears to the Court that:
1) Julian Bodnari appeals from his convictions, following a jury trial, of trafficking in cocaine, possession of a firearm during the commission of a felony, carrying a concealed deadly weapon, and numerous other related offenses. He argues that his convictions should be overturned because: (i) the prosecutor elicited improper testimony and made objectionable comments during closing argument; (ii) the verdicts were inconsistent; and (iii) the delay between his convictions and sentencing violated his right to a speedy trial.
2) In September 1999, Bodnari was clocked driving a Chevrolet Suburban at 72 miles per hour in a 55 miles per hour zone near Millsboro, Delaware. Delaware State Trooper Andrel Martinez, who was on routine patrol, pulled Bodnari over. As soon as Martinez reached the stopped vehicle and started talking to Bodnari, he smelled a strong odor of marijuana coming from the Suburban. He asked Bodnari and his passenger, Herman Garcia, whether they were smoking marijuana and Garcia eventually responded that he had smoked some earlier in the evening.
3) Martinez asked Bodnari, who had identified himself as "Mike Allen," to exit the Suburban. Martinez called for backup and, when another officer and a dog from the K-9 unit arrived, they searched the vehicle, with Bodnari's consent. Martinez eventually found a football-sized object wrapped in tape, as well as a loaded pistol. The large object turned out to be slightly over 1,000 grams of cocaine.
4) Both Bodnari and Garcia were charged with trafficking in cocaine, among other offenses. Garcia testified against Bodnari as part of plea bargain. At trial, Garcia testified that he and Bodnari were partners. Garcia explained that Bodnari asked him to go to Virginia with him to deliver a kilo of cocaine. Garcia obtained the Suburban from a third party, and the cocaine from a friend of Bodnari. The gun belonged to Garcia. On the day of the arrest, Bodnari picked Garcia up at a restaurant, and drove to Garcia's house. There, they transferred the gun and cocaine to the Suburban before departing for Virginia.
5) Bodnari first argues that reversal is warranted because of three instances of prosecutorial misconduct. Bodnari complains about Detective Andrew Goode's prejudicial testimony that Bodnari is the "top dog" in a drug organization. In addition, Bodnari argues that one comment made in closing argument improperly appealed to the jury's sympathy and sense of personal safety. A second comment allegedly amounted to improper vouching for the truthfulness of a witness.
6) Because there were no contemporaneous objections, we review the prosecutorial misconduct claim for plain error, which is error that is "so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
7) The "top dog" testimony originally was stricken because the State had not laid a proper foundation for it. Goode, who was qualified as an expert in drug investigation and interdiction, then testified about how drug organizations operate and how the top people in those organizations distance themselves from handling the drugs. With this foundation, the prosecutor asked Goode whether Garcia's description of his interaction with Bodnari formed the basis for Goode's conclusion that Bodnari was the "top dog." Goode answered, "Yes. . . ." Since the "top dog" testimony was admitted into evidence after the foundation had been laid, we find nothing improper in the prosecutor's reference to that testimony.
8) The comment in closing argument that Bodnari characterizes as improper vouching was not objectionable, either. The prosecutor was trying to counter Bodnari's assertion that Garcia was implicating Bodnari because of Garcia's plea bargain. The prosecutor argued that Garcia's testimony fit into "one harmonious story," and that Bodnari's arguments to the contrary should be ignored:
So, when [defense counsel] is saying all these things to you, when he is pointing out these things to you, ask yourselves, "Are you asking me to believe Mr. Garcia?," because if he is, I can draw a harmonious story that makes perfect sense of this, and that is that that man right over there (indicating), Mr. Bodnari, is guilty, ladies and gentlemen, of every one of the offenses charged.
In context, the prosecutor's remarks cannot be characterized as improper vouching. The prosecutor was asking the jury, when listening to Bodnari's argument, to decide whether Garcia's testimony fit together with the rest of the evidence to create one harmonious account of the events. The prosecutor did not say that Garcia was telling the truth; he said only that Garcia's testimony was consistent with the rest of the evidence.
9) Bodnari's last claim of prosecutorial misconduct has merit. He complains that the prosecutor appealed to the jury's emotions and concerns for personal safety by saying:
Ladies and gentlemen, it is clear the drugs are off the street. We heard the street value of this, one hundred thousand dollars once it is broken down. That is a lot of misery. The stakes are high here. A lot of drugs were taken off the street. This is pain, affliction, and crime. Ladies and gentlemen, when you go back and deliberate and draw these inferences, it is time to take the drug dealer off the street, too.
The State concedes that this comment was improper, but argues in this Court, as it did in Superior Court, that the comment was not so prejudicial as to warrant reversal under a plain error standard. We agree. The three factors to consider are: "the closeness of the case, the centrality of the issue affected by the . . . error, and the steps taken to mitigate the effects of the error." Here, as the trial court noted, this was not a close case and the jury was instructed to consider only the evidence, not the prosecutor's comments. Thus, we are satisfied that the improper comments did not deprive Bodnari of a fair trial.
Hughes v. State, 437 A.2d 559, 571 (Del. 1981) (quoting Dyson v. United States, 418 A.2d 127, 132 (D.C.App. 1980)).
10) Bodnari also argues that his convictions must be reversed because the verdicts were inconsistent. He was convicted of trafficking in cocaine and possession with intent to deliver cocaine, among other offenses, but was acquitted on the charges of maintaining a vehicle for keeping controlled substances and possession of drug paraphernalia. After a careful review of the record, we are satisfied that there was sufficient evidence to support Bodnari's convictions on the more serious charges and that the acquittals on the less serious charges are explainable as a matter of jury lenity.
Tilden v. State, 513 A.2d 1302, 1307 (Del. 1986).
11) Finally, we consider Bodnari's speedy trial claim. He was not sentenced until 30 months after his conviction, despite his repeated letters to the trial court complaining about the delay. Assuming that a delay in sentencing is evaluated in the same manner as a speedy trial challenge, this Court considers: "(1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant." Considering these factors together, we conclude that Bodnari's speedy trial claim fails.
Johnson v. State, 305 A.2d 622, 623 (Del. 1973).
Compare Middlebrook v. State, 802 A.2d 268 (Del. 2002).
12) The 30 month delay, as the sentencing judge noted, is unacceptable; and Bodnari did assert his right in letters to the court. The reason for the delay, however, is largely attributable to Bodnari. After filing a motion for a new trial in July 2000, Bodnari never requested a transcript until December 2000. He then delayed for three months in filing his opening brief, and for almost two months in filing his reply brief. The Superior Court denied the motion in June 2002 and scheduled sentencing for July 19, 2002.
13) On the scheduled sentencing date, Bodnari requested a delay based on correspondence from an inmate. One month later, Bodnari filed a second motion for a new trial — this time based on newly discovered evidence. The State responded to the motion in September 2002, but Bodnari never filed a reply. In December 2002, the trial court denied the second motion. Bodnari was sentenced the following month.
14) The State and the trial court bear some responsibility for the 30 month delay. The State did not file its briefs in a timely fashion, and the trial court did not insist that either side comply with the time limits it imposed. But Bodnari, through his attorney, was responsible for most of the delay.
15) In addition, Bodnari has not made a showing of substantial prejudice:
[O]nce a defendant has been convicted it would be the rarest of circumstances in which the right to a speedy trial could be infringed without a showing of prejudice. Moreover, the necessity of showing substantial prejudice would dominate the four-part balancing test. This is so because of the traditional interests the speedy trial guarantee is designed to protect: (1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. . . . Many of those interests diminish or disappear altogether once there has been a conviction. Because the rights of society proportionately increase, the prejudice claimed by the defendant must be substantial and demonstrable.
Perez v. Sullivan, 793 F.2d 249, 256 (10th Cir. 1986).
Bodnari argues that he was prejudiced because of the delay in having his appeal considered, and that the delay compromised the integrity of the judicial process. Although we recognize that both of these factors deserve weight, we conclude that they do not amount to substantial prejudice in the context of a postconviction delay largely attributable to Bodnari's counsel.
NOW, THEREFORE, IT IS ORDERED that the judgments of the Superior Court be, and the same hereby are, AFFIRMED.