Opinion
No. 352, 2002
Submitted: January 14, 2003
Decided: February 11, 2003
Court Below: Superior Court of the State of Delaware in and for New Castle County ID No. 0107022700
Affirmed.
Unpublished opinion is below.
MANUEL NIEVES, Defendant Below, Appellant v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 352, 2002 In the Supreme Court of the State of Delaware. Submitted: January 14, 2003 Decided: February 11, 2003
Before HOLLAND, BERGER, and STEELE, Justices.
Myron T. Steele, Justice
ORDER
This 11th day of February 2003, it appears to the Court that:
1. In March 2002, a Superior Court jury convicted appellant Manuel Nieves of numerous counts of rape and related crimes. In this appeal, Nieves asserts two grounds of error: (i) the trial judge failed to maintain impartiality before the jury thus denying him a fair trial and (ii) the trial judge's decision to reject the defendant's attempts to place before the jury his lack of a criminal record denied him a fair trial. We find no merit in either argument and conclude the conviction should be affirmed.
2. The victim of alleged child molestation testified as a prosecution witness. She was eight years old at the time of trial. After she finished her testimony, the trial judge excused her with the following words: "Jocelyn, you've done a great job. You can be excused now. Go outside and join your Mommy.
Thank you very much." There was no objection to the trial judge's choice of words or a request for a curative instruction. Now, for the first time on appeal, Nieves claims the trial judge's choice of words amounted to commentary approving the substance of the victim's testimony, thus violating the Delaware Constitution's prohibition against judicial comment on the evidence. Since Nieves failed to object at trial, we review for plain error. Plain error exists when the error was so clearly prejudicial to a defendant's substantial rights that it jeopardizes the very fairness and integrity of the trial process.
Bullock v. State, 775 A.2d 1043, 1046 (Del. 2001).
Id.
3. The Delaware Constitution prohibits trial judges from commenting upon evidence offered at trial. Article IV, section 19 specifically provides that "judges shall not charge juries with respect to matters of fact, but may state the questions of fact in issue and declare the law." "The purpose of the provision in the Delaware Constitution is to protect the province of the jury on factual issues."
Feleke v. State, 620 A.2d 222, 228 (Del. 1993); Wright v. State, 405 A.2d 685, 689 (Del. 1979).
Randy J. Holland, The Delaware State Constitution: A Reference Guide 150 (G. Alan Tarr, ed., 2002).
Here, the trial judge's comment should be read as an attempt to calm an apprehensive witness rather than an overt expression evidencing bias. In any event, the trial judge's comment hardly rises to the level of jeopardizing the fairness and integrity of the trial process given the circumstances surrounding the statement and the text of the commonly given final instructions reminding the jury that they are the sole determiners of the facts.
4. Nieves also claims that the trial judge's decision to reject the defendant's attempts to place before the jury his lack of a criminal record denied him the right to a fair trial. Twice during trial, defense counsel tried to place the fact that Nieves had no criminal record before the jury. Defense counsel asked the chief investigating officer during cross-examination whether the defendant had a criminal record. The prosecution objected on relevancy and the trial judge sustained the objection, finding the question "totally improper." The trial judge also instructed the jury to disregard defense counsel's question. Defense counsel also asked Nieves on direct examination whether he had ever been convicted of a serious crime. The prosecutor again objected on relevancy grounds and the trial judge sustained the objection. Nieves asserts that pursuant to D.R.E. 404(a)(1), he was entitled to place his criminal record before the jury as character evidence.
D.R.E. 404(a)(1) provides:
(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of the accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same.
5. Nieves misreads Delaware Rule of Evidence 404(a). "Neither the defendant nor the prosecution may offer evidence of `general' good or bad character. To be relevant, it is necessary that the evidence, good or bad, be confined to a particular trait or character the existence or nonexistence of which would be relevant to the crime charged or the credibility of a witness." The defendant's lack of a criminal record does not correlate with any character trait in issue. The trial judge appropriately recognized that the defense could have asked the questions with the sole purpose of suggesting that no criminal record would be inconsistent with the crimes for which the defendant faced trial. Even if the trial judge had determined the questions to be relevant, the trial judge has general discretionary authority to exclude the evidence if he determines that its probative value is substantially outweighed by practical considerations such as unfair prejudice, confusion of the issues, waste of time or danger of misleading the jury.
1 Wharton's Criminal Evidence, § 4:22, p. 359.
For a general discussion of character evidence and its admissibility, see Graham C. Lilly, An Introduction to the Law of Evidence 130 (West Publishing, 3rd ed. 1996).
At a minimum here, allowing the jury to hear that the defendant had no criminal record would clearly run the risk of misleading the jury into the improper inference that the lack of a criminal record would be inconsistent with guilt beyond a reasonable doubt of the crimes for which he stood trial. Just as a criminal record can not be allowed to infer guilt, lack of a criminal record may not be allowed to stand for inconsistence with guilt. Accordingly, the trial judge did not err by sustaining the State's objections.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED