Opinion
Docket No. 343, 1998.
April 19, 1999.
Appeal from Superior Court, Sussex County, CrA S97-11-0516-0518.
AFFIRMED.
Unpublished Opinion is below.
RICHARD McCANE, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 343, 1998. Supreme Court of Delaware. Submitted: March 9, 1999. Decided: April 19, 1999.
Superior Court of the State of Delaware, in and for Sussex County, Cr.A. Nos. S97-11-0516 thru 0518, Cr. ID No. 9711007448
Before WALSH, HOLLAND , and HARTNETT, Justices.
ORDER
This 19th day of April 1999, upon consideration of the briefs filed by the parties, it appears to the Court that:
1. The appellant, Richard McCane, appeals from his conviction, after a jury trial in the Superior Court, of two counts of unlawful sexual intercourse in the first degree and continuous sexual abuse of a child. The appeal is without merit.
2. McCane first contends that the Superior Court incorrectly denied his motion for a new trial based on juror misconduct.
3. The Superior Court properly instructed the jury not to construe McCane's failure to testify as evidence of his guilt, but after the verdict was delivered and after the jury had been polled and discharged, two jurors approached the chief investigating officer and apparently commented that they had an unfavorable view of McCane because he, among other things, had not testified at trial.
4. D.R.E. 606(b) provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental process in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
5. This is in accord with Sheeran v. State, Del. Supr., 344 A.2d 886 (1987); Massey v. State, Del. Supr., 541 A.2d 1254 (1988); and Claudio v. State, Del. Supr., 585 A.2d 1278, 1302 (1991). Rule 606(b) allows jurors to testify only on the question of whether "extraneous prejudicial information" was brought to the jury's attention or whether any "outside influence" was brought to bear on the jury. Fisher v. State, Del. Supr., 690 A.2d 917 (1996).
6. The Superior Court, therefore, did not incorrectly deny the motion for a new trial because of juror misconduct.
7. McCane also claims that the Superior Court abused its discretion when it refused to grant a mistrial after verdict based on the inadvertent improper playing of a portion of a tape after its redactment.
8. The Superior Court did not abuse its discretion when it refused to grant a mistrial after there was an inadvertent playing of a portion of a tape that had been redacted by agreement of the parties. In the redacted portion of the tape a witness stated that the victim, a seven year old, "just about never lies." McCane's counsel then moved for a mistrial and the trial court made a factual finding, which defendant does not contest on appeal, that inclusion of the remark was inadvertent. The trial court deferred a ruling on the mistrial motion and offered to instruct the jury to disregard the remark. For tactical reasons, defense counsel declined this instruction. After the verdict, the court denied the mistrial motion.
9. Motions for a mistrial are directed to the sound discretion of the trial judge. Taylor v. State, Del. Supr., 690 A.2d 933, 935 (1997); Thompson v. State, Del. Supr., 399 A.2d 194, 198-99 (1979). "The trial judge is in the best position to assess whether a mistrial should be granted, and to exercise his discretion in deciding whether to grant a mistrial. Absent an abuse of discretion, this Court will not disturb the trial judge's decision." Lewis v. State, Del. Supr., 626 A.2d 1350, 1357 (1993). "A mistrial is mandated only where there are no meaningful and practical alternatives to that remedy." Dawson v. State, Del. Supr., 637 A.2d 57, 62 (1994).
10. After a careful review of the record and the briefs, we are convinced that the Superior Court did not abuse its discretion in denying the motion for a mistrial.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be and the same hereby is AFFIRMED.
BY THE COURT:
/s/ Maurice A. Hartnett, III
Justice