Opinion
No. 0501015557A.
Submitted: November 15, 2006.
Decided: February 28, 2007.
Upon Defendant's Motion for a Third Trial — DENIED
Brian J. Robertson, Esquire, Deputy Attorney General, Department of Justice, Wilmington, DE.
Christopher D. Tease, Esquire, Wilmington, DE.
Dear Counsel:
Defendant filed a timely motion for another trial, following his re-trial on serious drug and weapons offenses. This time, Defendant challenges a curative instruction the court gave, sua sponte, for Defendant's benefit. Defendant contends that the instruction violated Delaware's prohibition on the court's commenting on evidence. As discussed below, Defendant did not make a contemporaneous objection, the instruction was appropriate and, if the instruction were wrong, which it was not, the error was harmless.
Del. Const. art. IV, § 19. See also Wright v. State, 405 A.2d 685, 689 (Del. 1979).
After receiving a tip, Defendant's probation officer enlisted an experienced police officer's help in preparing and executing a search warrant for Defendant's apartment. When the police officer testified, the State asked a routine question about the police officer's duties. After telling the jury he was assigned to the Wilmington Police Department's "Drug Organized Crime and Vice Division," the officer began to explain that his job was "to identify drug traffickers throughout the City of Wilmington, throughout the State of Delaware, and conduct investigations of those individuals and arrest them."
Question: "What are your duties with Wilmington PD?"
Answer:
I was assigned to the patrol division for five years, and roughly the past three years I've been assigned to the Drug Organized Crime and Vice Division. . . . And my job is to identify drug traffickers throughout the city of Wilmington, throughout the State of Delaware, and conduct investigations of those individuals and arrest them.
At that, the court became concerned about innuendo. The court was troubled that the jury would infer Defendant was a bad person, known to the narcotics squad as a drug trafficker. That inference would have been unproved and terribly unfair. As mentioned, the officer got into this case merely to help a probation officer follow-up on a tip. Accordingly, the court, on its own initiative, interrupted the police officer and provided a vigorous, curative instruction. Defendant's counsel did not object.
The court:
Well, let me stop you right there because I know a little bit about the background in this case. There's no suggestion that because this officer is involved and that he's involved with drug traffickers in Delaware, something like that, that the defendant is one of those people. And I'm mentioning this because I know that this officer got involved in this case in ways that had nothing to do with any sort of significant drug trafficking investigation. So I'm concerned that because the officer just told you what he does for a living you're going to make what is a factual mistake and think that defendant somehow was a target for tha t. I repeat, this officer got involved in this case in a totally different way, and it does not involve any kind of ongoing investigation into major drug trafficking or whatever it was that he just said he does. So let's be clear about that.
See Baker v. State, 906 A.2d 139, 150 (Del. 2006) ("[W]e reemphasize that trial judges have a continuing duty to intervene sua spon te, even in the absence of defense counsel's objection, when a trial prosecutor steps out of bounds.").
After the trial was over, counsel reflected on the curative instruction. Then, he became concerned that although the court blunted the implication that Defendant was a known drug trafficker, the curative instruction might have subtly suggested that the court believed Defendant was involved with drugs to a lesser extent. Defendant further argues that the State's rebuttal argument increased the possibility that the jury would believe that the court thought Defendant was guilty. According to Defendant, the State argued that it did not matter if Defendant was a major drug dealer, all it had to prove was that he was a minor drug dealer.
The court is satisfied that Defendant's concern is unfounded. Probab ly, the reason why Defendant failed to object to the curative instruction is because the instruction was meant to be helpful to Defendant, and everyone in the courtroom took it that way. Moreover, by not objecting, Defendant deprived the court of its best opportunity to put Defendant's concern to rest. And, in its final charge, the court instructed the jury that it had no opinion about the facts and no view as to what the verdict should be.
Hackett v. State, 888 A.2d 1143, 1145 (Del. 2005) (citing Capano v. State, 781 A.2d 556, 653 (Del. 2001); Goddard v. State, 382 A.2d 238 (Del. 1977)).
"[P]lease understand that I have not expressed a view as to what your verdict should be. Considering the evidence, determining the facts and reaching the proper verdict based on the facts and the law is your job, not mine. I am the judge of the law in this trial and you are the judges of the facts."
The court appreciates that typically, it must speak when the prosecutor steps out of bounds. Here, it might be said that the court interrupted a witness. The distinction, however, is without a difference as the witness was answering the prosecutor's question, and presumably, the prosecutor knew what the officer would tell the jury. This assumes without deciding that the court's duty to intervene is limited literally to prosecutorial misconduct.
See Baker, 906 A.2d at 150.
The evidence against Defendant was overwhelming. Once the court denied Defendant's pre-trial motion to suppress the search warrant, the evidence uncovered by the search was devastating. Absent a fantastic conspiracy and colossal perjury, Defendant was guilty. In other words, there was no room for reasonable doubt that the weapons and drugs found in Defendant's small apartment were his. A third trial in this simple case will end the same as the first two. Thus, any error, plain or otherwise, was harmless.
State v. LeGrande, Del. Super., ID No. 0501015557A, Silverman, J. (Letter Order) (Re-trial granted due to former counsel's ineffective assistance and despite the overwhelming evidence against Defendant).
Finally, Defendant argues that he is entitled to a mistrial because Defendant's probation officer testified that Defendant had been tested for drug use, and from that, the jury could infer Defendant was on probation. Defendant reminds the court that the issue was raised at sidebar, but Defendant did not order a transcript of the testimony and the sidebar. The court recalls, however, that the issue was extensively re-addressed at the start of the trial's second day. The court relies on the extensive record created at trial.
For the foregoing reasons, Defendant's Motion for a New Trial is DENIED .
IT IS SO ORDERED.