Opinion
I.D. No. 0202014477 (Harris), 0202012620 (Malloy)
Submitted: December 20, 2002
Decided: December 30, 2002
Upon Defendants' Motion to Dismiss. Denied.
Kenneth M. Haltom, Deputy Attorney General, Dover, Delaware, attorney for the State.
Kevin M. Howard, Esquire, Whitehurst Curly, Dover, Delaware, attorney for the Defendant Harris.
Sandra W. Dean, Assistant Public Defender, Dover, Delaware, attorney for the Defendant Malloy.
ORDER
I. Introduction
Before Your Honor is Defendant Harris and Malloy's Motion to Dismiss. The theory of the Motion is that the Defendants can not be re-tried because double jeopardy has attached unless the declaration of mistrial is justified by a showing of manifest necessity. Also, in oral argument defense counsel for Defendant Harris argues that his client's right to a speedy trial is being violated. After reviewing the transcript of the November 18, 2002 trial and the submissions of all parties involved it appears to this Court that the Defendants' Motion to Dismiss shall be denied.
Defendant Harris joined in Malloy's Motion to Dismiss.
Before the oral argument, the only mention of the possible infringement of the Defendants' right to a speedy trial was the last line of Defendant Malloy's Motion which stated — "The Defendant's right to a speedy trial is also in jeopardy. He was Indicated on April 1, 2002." In addition, Harris' defense counsel while joining the Motion made a passing reference to "joining in the motion to dismiss based on double jeopardy and violation of the defendant's right to speedy and public trial." Letter filed by Mr. Howard, December 10, 2002.
II. Background
The Defendant, Jermaine Malloy, and his co-defendant, Andy Harris, were indicted on charges of Robbery First Degree, Burglary First Degree, Possession of a Firearm During the Commission of a Felony, Assault Second Degree and Conspiracy Second Degree. On November 18, 2002, the jury trial commenced against the two defendants. The jury panel that was initially selected was comprised entirely of Caucasian jurors, with one African-American alternate. At sidebar, counsel for Defendant Harris brought to the Court's attention Harris' objection to an all-white jury. The defense counsel for Harris stated, "I have looked at the array. The array is ten or eleven people I have identified as being black. I can't call into question how they were selected, but by random, these two black defendants are being tried by an all white jury, and we object." Defense counsel for Malloy responded, "I would join in the objection. My client didn't mention anything to me, but it occurred to me myself it is just not a cross-section of the community when you have a white jury, but I do not have any particular facts to point to as far as the selection." Defense counsel for Harris further stated that he could point to no specific Delaware case to address this issue but a "challenge to the array could be made." However, defense counsel specifically stated somewhat inconsistently that "the challenge is not to the array." The Prosecution in this case asked that a continuance be granted so that an entirely new panel could be selected. However, Harris' defense counsel proposed a different remedy stating that "[t]he other alternative is to seat the two alternates for the jurors." At this point, at the suggestion of defense counsel for Mr. Harris, the Court, in order to remedy the perceived unfairness, excused jurors number 11 and 12 and replaced them with the two alternates. Neither the Prosecution nor the attorney for either defendant objected to this remedy. After two new alternates were selected, the jury was sworn.
Transcript at *2 [Mr. Howard].
Transcript at *3 [Ms. Dean].
Transcript at *3 [Mr. Howard].
Id. at *4 [Mr. Howard].
Id. [Mr. Haltom].
Id. [Mr. Howard].
Id. at 4. After the decision was made to seat the alternates, neither defense attorney objected, and the Prosecution merely stated, "Yes, Your Honor."
The trial progressed with the State presenting its first two witnesses, including the victim in this case. On the second day of trial, the State moved for a mistrial based on the Court's action during jury selection. Both Defendants concurred in the motion for a mistrial, and the mistrial was granted.
III. Analysis
A. Double Jeopardy
The determination of whether double jeopardy has attached is determined on a case-by-case basis. A trial judge has discretion in declaring a mistrial; however, that discretion should be exercised "with the greatest caution, under urgent circumstances and for very plain and obvious causes." In Hughey v. State the Supreme Court outlines a two-step analysis for this Court to apply when determining whether double jeopardy has been violated. First, this Court must determine whether jeopardy attached in the first proceeding. Second, this Court must determine, if jeopardy attached, whether "manifest necessity" required the declaration of a mistrial.
State v. Maxwell, 1993 Del. Super. LEXIS 359. In Maxwell, the State asked for the mistrial during the first trial. The Defendant opposed the granting of a mistrial. After the new trial date was set, Defendant moved for a dismissal based on double jeopardy. The motion for dismissal was denied.
Hughey v. State, 522 A.2d 335 (Del. 1987) (declaring a mistrial sua sponte because the prosecution did not properly subpoena an critical out-of-state witness). In the case at bar, like in Maxwell, the prosecution asked for the mistrial, this Court did not sua sponte declare the mistrial. Nevertheless, as in Maxwell, "it seems logical to analyze the current matter as if the Court had sua sponte granted the mistrial." Maxwell, 1993 Del. Super. at *8. Thus, it seems appropriate for this Court to follow Maxwell utilizing the two-step process of Hughey.
Id. at 338; see also Maxwell, 1993 Del. Super. Lexis at *7.
1. Has Jeopardy Attached?
Jeopardy attaches in a jury trial when the jury has been impaneled and sworn. In this case, the jury was sworn in on November 18, 2002. The trial commenced with two witnesses called by the State. Under the law, it appears evident that jeopardy attached. Therefore, since jeopardy attached, the focus turns to whether there was manifest necessity to declare the mistrial.
Hughey, 522 A.2d at 339; see also Maxwell, 1993 Del. Super. at *7.
2. Was there Manifest Necessity?
"The double jeopardy clause does not preclude a defendant's retrial after jeopardy has attached if declaration of a mistrial is justified by a record showing of `manifest necessity.'" A finding of manifest necessity requires a consideration of all relevant circumstances. In Bailey v. State the Supreme Court stated:
Hughey, 522 A.2d at 338.
Maxwell, at *9.
In the absence of a motion by a defendant for a mistrial, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant's option to continue with the trial, until a scrupulous exercise of judicial discretion leads to the conclusion that the end of public justice would not be served by a continuation of the proceedings.
Bailey v. State, 521 A.2d 1069 (Del. 1986).
Furthermore, "a trial judge's invocation of manifest necessity may not be set aside simply because the court may have failed to explicitly verbalize the precise words `manifest necessity' or articulate on the record all the factors which support finding a deliberate exercise of discretion."
Hughey, 522 A.2d at 339.
Defendants rely upon Sudler v. State for the proposition that manifest necessity can not result from an error committed by the Court. The Defendants claim that this Court improperly interfered with their right to a properly seated jury; thus, the mistrial could not be granted under the guise of manifest necessity. However, Sudler is factually distinct from the instant case in that after the judge dismissed the jurors, the defendant was convicted of the charges. No mistrial was granted, yet the Supreme Court treated the case as though a mistrial was granted. Unlike the case at bar, the trial judge in Sudler did not attempt to correct a trial error through granting the mistrial, instead that court convicted the defendant after the trial error occurred.
611 A.2d 945 (Del. 1992).
In the instant case, when the Prosecution made its motion for a mistrial, this Court, after a careful reflection of the events that transpired and the applicable law, determined that it erred when it accommodated the defense by seating the alternate jurors. The policy behind many of the rules and procedures of the Superior Court is to allow trial judges to correct their mistakes when these mistakes are brought to their attention. Furthermore, the Delaware Supreme Court has, in some circumstances, directed trial judges to be more active in sua sponte intervening to correct issues that occur during the trial. In this case, at the time when jurors number 11 and 12 were dismissed there was no objection made; however, later the Prosecution brought the potential problem to the Court's attention. At that point, this Court determined that there was not an adequate showing under the law to allow the change to the jury; thus, it was in the interest of public justice to grant the mistrial. It appears to this Court that if a trial judge can fix an error during the trial that judge has an obligation to do so. Thus, public policy would be best served to allow judges to correct trial errors by granting a mistrial without fear that the retrial of a defendant would be barred under double jeopardy. To decide this Motion any other way would create a chilling effect on trial judges being proactive in correcting errors during the trial. Therefore, since it was a manifest necessity to grant the mistrial, the retrial of the Defendants is not barred.
See for example Super.Ct.Civ.R. 59 allowing for motions for a reargument, or a new trial. In addition, under Rule 59(c) the trial judge may of his own initiative grant a new trial. It is well settled that the manifest purpose of this rule is to afford the trial judge an opportunity to correct errors prior to appeal. Gillenardo v. Connor Broadcasting, 2000 Del. Super. LEXIS 165, *2.
Williams v. State, 803 A.2d 927, 931 (Del. 2002) (determining on appeal that the prosecutor's remarks were so impermissible that the trial judge had a duty to intervene even in the absence of an objection of the defense counsel).
See the transcript of the Granting of the Mistrial.
B. Speedy Trial
Under Art. I. § 7 of the Delaware Constitution of 1897, all defendants are guaranteed the right to "a speedy and public trial by an impartial jury." A determination of the merits of a speedy trial claim is essentially a question of fact. The Delaware Supreme Court utilized a four factor balancing test enunciated by the Supreme Court in Barker v. Wingo to assess whether a defendant's right to a speedy trial has been violated. The four factors considered in Barker are: (1) the length of delay; (2) the reason for delay; (3) the defendant's assertion of his right, and (4) prejudice to the defendant. "The length of the delay is to some extent a triggering mechanism." Consequently, "until there is some delay which is presumptively prejudicial, there is no necessity for inquiring into the other factors that go into the balance."
The Defendants do not specify under which authority their speedy trial claim is being filed; however, the analysis under Article I Section 7 of the Delaware Constitution is the same as the analysis under the Sixth Amendment. The Defendants may also have filed their speedy trial claim under Superior Court Criminal Rule 48(b). Rule 48(b) states that if there is unnecessary delay in . . . bringing a defendant to trial, the Court may dismiss the indictment." Super.Ct.Crim.R. 48(b) (emphasis added). Rule 48(b) serves a "broader and is not governed by established concepts of the speedy trial clause." Hughey, 522 A.2d at 340. Nevertheless, by the language of the Rule its application is within the sound discretion of the trial court. Id.
Hughey, 522 A.2d at 341.
407 U.S. 514 (1972).
Hughey, 522 A.2d at 341.
Barker, 407 U.S. at 540.
Id.
Hughey, 522 A.2d at 341 (citing Barker, 407 U.S. at 540).
Under the circumstances of this case, the original trial was brought within seven months of the indictment. The retrial is scheduled for January 16, 2003, which is nine months from the indictment. Under these circumstances the length of the trial delay is not presumptively prejudicial. Since the length of delay is not presumptively prejudicial, the delay is not sufficient to trigger an inquiry into the remaining three Barker factors. The Court therefore does not need to address the issue of this Court recently indicating that no further delay would occur and then continuing the trial at the State's request.
Tramill v. State, 425 A.2d 142, 143 (Del. 1980) (determining that under the facts of that case thirteen months was not presumptively prejudicial); Beebe v. State, 346 A.2d 169, 172 (Del. 1975) (determining twelve months not presumptively prejudicial).
The Motion to Dismiss is therefore denied. IT IS SO ORDERED.