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granting a new trial because the court clerk's trial notes, which made references to motions and excluded evidence, were left in the jury room and members of the jury stated that they had seen the notes
Summary of this case from State v. MillerOpinion
Criminal Action Nos. 99-03-0615, et seq.
Submitted: January 19, 2000.
Decided: February 10, 2000.
MOTION FOR NEW TRIAL — GRANTED
Richard W. Hubbard, Esquire, Patricia A. Dailey, Esquire, Carvel State Office Building, 820 North French Street, Wilmington, DE 19801, Attorney for State of Delaware.
Victor F. Battaglia, Esquire, Robert D. Goldberg, Esquire, Biggs and Battaglia, Attorneys for Joseph Shaia, Kathleen Shaia, James Van Landingham and Wealthy Van Landingham.
Theresa M. Hayes, Esquire, Law Office of Edward C. Gill, Attorney for Michael L. Booth.
Ronald D. Phillips, Jr., Esquire, Hudson, Jones, Jaywork Fisher, Attorney for Shawn P. Winston.
MEMORANDUM OPINION
This case is presently before the Court upon the post-trial motions of the defendants Joseph Shaia, Kathleen Shaia, James Van Landingham, Wealthy Van Landingham, Michael L. Booth, and Shawn P. Winston ("Defendants"). Upon the culmination of a five-week trial, the jury found the Defendants guilty on multiple counts. The Defendants have now filed a Motion for Judgment of Acquittal or New Trial grounded upon several theories. Because this Court finds that an egregious error occurred during the jury's deliberations causing undue prejudice to the Defendants, I grant the Defendants' Motion for a New Trial. As the findings on this issue render the other allegations of error moot, I do not address these other issues in this opinion and acknowledge that the Defendants will be free to raise some of these issues as they arise in subsequent proceedings.
FACTS
During the summers of 1997 and 1998, Joseph Shaia and his wife Kathleen, operated an auction house in Fenwick Island, Delaware: The auction advertised itself as an "estate auction" that dealt in jewelry, oriental rugs, bronzes, art, and antiques. During the summer season, auctions were held on several nights each week. The other Defendants were employees of the auction house who assisted the Shaias with the business in several different capacities.
In the summer of 1997, a disgruntled customer of the Auction alerted the Fenwick Island Police ("Police") that the Auction was selling cheap imitation Remington bronzes as the "real thing" or of a better quality than they were. The Police investigated the Auction through the end of the season (October) by placing an undercover officer in the Auction as an employee. In the following season, 1998, the investigation into the Auction's activities was renewed with a joint effort by the Police and the Attorney General's Office, Fraud Division. Again, the Police placed an undercover officer as an employee of the Auction and an investigator from the Attorney General's office secretly videotaped the auction on several occasions in June, 1998.
In July, 1998, the Police and the Attorney General's office concluded the investigation and obtained and executed a search warrant to search for and seize evidence of wrongdoing by the Auction. As a result of the investigation into the Auction's activities the Defendants were arrested and charged with various counts of criminal racketeering, conspiracy to commit criminal racketeering, theft (felony and misdemeanor), attempted theft, conspiracy second degree, forgery third degree, and deceptive business practices.
The Defendants were brought to trial on November 8, 1999. The trial lasted a number of weeks. The matter was given to the jury for deliberations on the afternoon of December 9, 1999. The jury did not reach a verdict that day and resumed deliberations on December 10, 1999. The jury was dismissed for the weekend and returned on Monday, December 13, 1999, to resume deliberations. As the Court staff was preparing for their arrival, a staff member noticed that the court clerk's trial notes were in the top of the box of exhibits to go back to the jury. At this point, it was unclear whether the notes had gone back with the exhibits while the jury was deliberating on Thursday and Friday of the preceding week and whether the jurors had seen the trial notes at all.
Included in this package I am labeling the "trial notes," was a master juror list, a list of witnesses and when they appeared, a list of the exhibits, and a list of the possible verdicts. Most troublesome, however, was the inclusion of the clerk's notes, which provide a sort of diary or journal of the trial. Nearly every event of any import in this trial was documented in these notes. Entries in the clerk's notes include references to:
1. The times at which the Court convened and recessed each day;
2. The times at which witnesses began and concluded their testimony;
3. Notations concerning objections and side-bar conferences; and
4. Notes concerning motions that were made and the rulings on those motions.
The Court immediately notified the parties that the jury may have been exposed to the Court's notes. As these notes would constitute "extra-record" information, the Court decided initially to voir dire the jury as a body to discover the nature of the jury's exposure to the notes. The Court introduced the voir dire with the following:
I want to ask. Something has come up. I want to have a conversation with the jury as a group about it. And as you have been instructed, you are to base the decision based only upon the evidence and the instructions of law. And you all have a copy of the instructions as a whole which guides you in your deliberations.
This morning when we were getting ready for you to come back, getting set for you to come back, there was a box. That box had items of evidence in it. And this may be nothing, but it may be something, that's why we are talking about it. On top of the box of evidence, the evidence box, there was the possible verdicts indicated and these verdicts are the same as that which you were instructed to by me about what the possible verdicts were. Right next to that. Then there were these yellow sheets of paper and these yellow sheets of paper, which I have, that's the Court record that our clerks, who come in here every day, they say what time we started, what time we stopped. It is records, information about the trial. And there are various things on this. It is a little bit like a diary.
. . .
. . . I don't know if you have seen this package of materials. So my question to you is: Has any juror been exposed to these trial notes that I'm putting up in the air, the trial notes? You can't read them, but you can see the yellow sheets.
In response to the question, an unidentified juror indicated that he or she had seen the trial notes in the jury room during deliberations. The Court then followed up with a series of questions designed to assure that the jury would base its verdict solely on the evidence admitted at trial as applied to the instructions of law the members were given. In each case, the jurors affirmed they would do so. The Court then asked the following question: "Is my understanding correct that while these trial notes may have been in that box that the jury did not review these trial notes; is my understanding accurate?" An unidentified juror responded: "I read something. I glanced. I don't know what it is, but I read — I glanced at the list of jurors' names and the list of exhibits." The Court then asked: "of the people on the jury, raise your hand that had actually seen these and actually had put their hands on?" Four jurors raised their hands. The jury was then excused to renew their deliberations.
The Court asked as "follow-up":
"If the jury has seen these trial notes, does each juror promise to put these notes out of his or her mind?" "Does each juror promise that he or she will not be influenced in any way by the existence of these notes?" "Does each juror promise to base his or her verdict solely on the evidence and the instructions of law that have been given to you?" "Does each juror understand that these trial notes were prepared by the clerk and are not evidence and may be given absolutely no consideration; does each juror understand that?" "Should any information have been exposed to you by these trial notes, does each juror understand that such information must be disregarded entirely and not play any part in your role as a jury here?"
The Court, still concerned about the possible effect these trial notes may have had on the jury's deliberative process, decided to voir dire the jurors individually the next day. Each juror was asked individually if and when they were exposed to the trial notes and the nature of any exposure. Some jurors indicated that they had not seen the notes at all while others indicted varying degrees of perusal. Some had looked only at the list of exhibits while another looked at the jury list to verify the spelling of his or her name. Others indicated that they had "flipped through" the notes. Perhaps the most notable result of this voir dire is that upon individual questioning, eight jurors indicated that they had at least seen the notes where only four jurors indicated the same the day before.
The following is a summary of each juror's response:
Juror #1: The notes were in the jury room on December 10, 1999, but Juror did not look at them. Juror recalls the jury using them to find an exhibit. Juror #2: Juror saw the trial notes and "leafed through" them. Juror recalls using them to locate items of evidence. Juror #3: Juror knew the notes were in the jury room but did not look at them. Juror #4: Juror saw the notes and noted that they were a list of possible verdicts and list of exhibits. Juror thought they were for the foreman. Juror #5: Juror did not see notes and did not recall them being in the jury room. Juror #6: Juror did not see the jury notes. Juror #7: Juror did not see nor review the notes. Juror #8: Juror looked at the notes to see if her name was spelled correctly. Juror #9: Juror did not recall seeing the notes at all in the jury room. Juror #10: Juror recalled the notes in the jury room but did not see them. Juror #11: Juror recalled the notes in the jury room but did not see them. Juror #12: Juror glanced at parts of the packet and noted "the times everybody was on testimony."
The jury was sent back to resume deliberations and the Defendants' motion for a mistrial was denied. Approximately two hours later the jury returned with their verdict. The Jury found Joseph Shaia guilty of all 28 counts against him and Kathleen Shaia, James Van Landingham, and Wealthy Van Landingham guilty of the 25 counts against them. Michael Booth was found guilty on eight of the eleven charges against him and Shawn Winston was found guilty of nine of the sixteen counts with which he was charged. The jury was excused. The Defendants moved for either acquittal or a new trial and the Court instructed them to file their motions. Those motions were duly filed and all parties have set forth their respective positions in briefs filed with the Court.
ANALYSIS
STATEMENT OF THE LAW
The Motion for a New Trial, as a sculpting medium, is provided in its raw form by court rule. This procedural provision, however, has been shaped and sculpted over time as courts, both state and federal, have interpreted its constitutional protections. Those protections cut to the very core of our jurisprudential system and are worthy of our greatest attentions.
Superior Court Criminal Rule, Rule 33 . The Superior Court Criminal Rules provide that "[t]he court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice." Super. Ct. Crim. R. 33. The constitutional dimensions to this rule are injected by the language "in the interest of justice" and, hence, that is where the Court looks for guidance in applying this rule.
Constitutional Protections . Defendants who find themselves in our criminal justice system are protected from abuse and prejudice by the protections given them in both the United States Constitution and the Constitution of the State of Delaware. Neither Constitution operates to the exclusion of the other for the defendant falls under the umbrella of both. The United States Constitution is the Defendant's primary layer of protection, its lower umbrella, if you will. The Delaware Constitution can be, and is in many cases, a larger umbrella that lays over top the lower and shields the Defendant to a greater degree. To put it differently, it is also often said that the United States Constitution is merely the "floor" for rights or protections and that state constitutions may provide rights or protections that fall anywhere above that floor. See Arizona v. Evans, 115 S.Ct. 1185, 1190 (1995) ("We believe that Michigan v. Long properly serves its purpose and should not be disturbed. Under it, state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution."); Jones v. State, Del. Supr., A.2d ___, No. 115, 1998, Veasey, C.J. (Dec. 16, 1999) at 4 ("The Delaware Constitution, like the constitutions of certain other states, may provide individuals with greater rights than those afforded by the United States Constitution.").
United States Constitution. A criminal defendant's post-indictment rights are found in Amendment VI of the United States Constitution. The Amendment provides that:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Delaware Constitution. The Delaware Constitution provides similar protections.
In all criminal prosecutions, the accused hath a right to be heard by himself and his counsel, to be plainly and fully informed of the nature and cause of the accusation against him, to meet the witnesses in their examination face to face, to have compulsory process in due time, on application by himself, his friends or counsel, for obtaining witnesses in his favor, and a speedy and public trial by an impartial jury; he shall not be compelled to give evidence against himself, nor shall he be deprived of life, liberty or property, unless by the judgment of his peers or by the law of the land.
Del. Const., art. I, § 7 (1897).
The issue presently before the Court, that being the question of how to handle the situation where jurors have been exposed to information not presented as evidence in open trial, raises specific concerns under the constitutional provisions cited above.
In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as `indifferent as he stands unsworne.'Turner v. Louisiana, 379 U.S. 466, 471-72 (1965).
The Government, in prosecuting its case against a criminal defendant, has the well-established burden of proving that defendant's guilt "solely on the basis of evidence produced in the courtroom and under circumstances assuring the accused all the safeguards of a fair trial." Farese v. United States, 5th Cir., 428 F.2d 178, 179 (1970). See also, Turner, 379 U.S. at 472-73 ("In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the `evidence developed' against a defendant shall come from the witness stand in a public courtroom . . . ."); United States v. Perkins, 11th Cir., 748 F.2d 1519 1533 (1984). To this end, "all factual material must pass through the judicial sieve, where the fundamental guarantees of procedural law protect the rights of those accused of crime." Wright and Miller, Federal Practice and Procedure, § 6075 Juror as a Witness, at 450, fn 29 (1990). Thus, all evidence against the defendant is to be granted full judicial protection of the defendant's right of confrontation and cross-examination. Turner 379 U.S. at 473; Farese at 180; United States v. Keating, 9th Cir., 147 F.3d 895, 900 (1998); Perkins at 1533.
The Delaware Supreme Court echos those concerns raised in the federal courts, stating:
We take occasion to emphasize that fairness, and indeed the integrity of the judicial process, make it imperative that jurors secure information about the case only as a corporate body in the courtroom. Only in that way can knowledge of the case at hand be presented to jurors in accordance with traditional rules of evidence and be tested by the constitutional right of cross-examination.Smith v. State, Del. Supr., 317 A.2d 20, 23 (1974). See also,Hughes v. State, Del. Supr., 490 A.2d 1034, 1040 (1985) ("It should be apparent that the jury's verdict was based solely on the evidence presented at trial, and that defendant was able to exercise his due process rights of confrontation and cross-examination in the courtroom with the aid of his counsel."). Finally, to make these protections real, trial courts are to "take strong measures to ensure that the balance is never weighed against the accused." Diaz v. State, Del. Supr., ___ A.2d ___, No. 383, 1998, Holland, J. (December 16, 1999) at 33 (quoting Sheppard v. Maxwell, 384 U.S. 333, 362 (1966)). Standard for New Trial — Federal Courts . While the United States Supreme Court has not recently weighed in on the precise test for granting a new trial where the jury has been exposed to extrinsic or extra-record information, a number of courts have adopted a "reasonable possibility" test.
One court made the following vivid, albeit a bit grisly, argument for these safeguards:
Modern day trials are factually presented in open court before the iron curtain descends upon the jury room. We cannot tolerate prejudicial factual intrusion into that sanctum lest our courts return to the darker days of our jurisprudential history. The dagger of hidden evidence must not be taken from its scabbard for the first time in the jury room to wound the defendant; and unless its piercing effect is only skin deep and without prejudice to the anatomy of the trial, we must apply a constitutional salve. United States v. Howard, 5th Cir., 506 F.2d 865, 866 (1975).
The United States Supreme Court, in an opinion cited by many courts dealing with this issue, stated that:
In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.Remmer v. United States, 74 S.Ct. 450, 451 (1954).
Several Circuit Courts of Appeal have framed the test in such a manner that a defendant is entitled to a new trial where there "exists a reasonable possibility that the extrinsic material could have affected the verdict." United States v. Vasquez, 9th Cir., 597 F.2d 192, 193 (1979). Some jurisdictions adopting the reasonable possibility test have also stated that once such a reasonable possibility is shown, the Government must come forward with proof that any exposure to the extrinsic evidence was harmless. See United States v. Perkins, 11th Cir., 748 F.2d 1519, 1533 (1984); United States v. Keating, 9th Cir., 147 F.3d 895, 902 (1998) ("The government has the burden of showing beyond a reasonable doubt that extrinsic evidence did not contribute to the verdict.").
See also, Farese v. United States, 5th Cir., 428 F.2d 178, 180 (1970); United States v. Berry, 7th Cir., 92 F.3d 597, 600 (1996); United States v. Keating, 9th Cir., 147 F.3d 895, 900 (1998); United States v. Perkins, 11th Cir., 748 F.2d 1519, 1533 (1984); United States v. Blackston, S.D. Ga., 547 F. Supp. 1200, 1220 (1982); and Wiser v. People, Colo. Supr., 732 P.2d 1139, 1142 (1987) ("Most courts have decided that the relevant question is whether there is a `reasonable possibility' that extraneous contact or influence affected the verdict to the detriment of the defendant." The case also provides an extensive string citation showing a number of jurisdictions adopting and using the test.).
Finally, the Keating decision does a thorough job of listing some factors a court should consider in determining whether the government has met its burden of proving the error harmless. In putting together this list, the court looked to its earlier decisions of Dickson v. Sullivan, 9th Cir., 849 F.2d 403 (1988) ("Dickson factors") and Jeffries v. Wood, 9th Cir., 114 F.3d 1484 (1997) ("Jeffries factors"). The list includes the following factors:
The Dickson factors:
1. Whether the material was actually received, and if so, how;
2. The length of time it was available to the jury;
3. The extent to which the juror discussed and considered it;
4. Whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; and.
5. Any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict.
The Jeffries factors:
1. Whether the prejudicial statement was ambiguously phrased;
2. Whether the extraneous information was otherwise admissible or merely cumulative of other evidence adduced at trial;
3. Whether a curative instruction was given or some other step taken to ameliorate the prejudice
4. The trial context; and
5. Whether the statement was insufficiently prejudicial given the issues and evidence in the case.Keating at 902-903.
Standard for New Trial — Delaware Courts . Delaware has expressly disavowed the "reasonable possibility" test set forth above. See Massey v. State, Del. Supr., 541 A.2d 1254, 1259 (1988). In 1985, the Delaware Supreme Court stated that a defendant "is entitled to a new trial only if the error complained of resulted in actual prejudice or so infringed upon the defendant's fundamental right to a fair trial as to raise a presumption of prejudice." Hughes v. State, Del. Supr., 490 A.2d 1034, 1043 (1985). Moreover, in deciding whether prejudice will be presumed, each case must be evaluated in light of its unique facts. Hughes at 1047.
The Supreme Court revisited this issue three years later inMassey. There, the Court restated the Hughes test as follows:
We hold that to impeach a verdict based on juror misconduct, a defendant must establish actual prejudice unless the defendant can show that the circumstances surrounding the misconduct were so egregious and inherently prejudicial so as to support a presumption of prejudice to defendant.Massey at 1255. See also, Lynch v. State, Del. Supr., 588 A.2d 1138, 1139 (1991); State v. Deshields, Del. Super., Cr. A. No. 95-07-0213, Carpenter, J. (Sept. 30, 1996) Opinion and ORDER at 2. Defendants receive the benefit of this presumption where they show a "reasonable probability" that the alleged error is inherently prejudicial. Massey at 1257. While this presumption is not conclusive, it does shift the burden to the State to show that any such error was harmless to the defendant. Deshields at 2 (citing Remmer v. United States, 347 U.S. 227, 229 (1954)).
The Supreme Court's most recent decision on this issue of jury exposure to extraneous prejudicial evidence or information does not address the test set forth in Massey and its progeny. See Diaz v. State, Del. Supr., ___ A.2d ___ No 383, 1998, Holland, J. (December 16, 1999). There, the Court found that a trial court's inadequate voir dire made it impossible for the defendant to show actual bias. The Court further stated that even where there is no showing of actual bias, a defendant's right to due process is violated where the circumstances show the "likelihood or the appearance of bias." Diaz at 33. While this may appear to be a lesser standard than that mentioned in the prior decisions, it may also be read consistently with them. Those circumstances that show a "likelihood" or "appearance" of bias or prejudice could be the same circumstances that are "egregious" or "inherently prejudicial." Thus, since Diaz does not appear to overrule or limit Massey, I find that the rule of law set forth in Massey and its progeny is controlling in this jurisdiction.
Finally, "[a] defendant in a criminal case is denied his Sixth Amendment right to a trial by an impartial jury if only one juror is improperly influenced." Diaz at 34.
APPLICATION OF THE LAW TO THE FACTS
In applying the law stated above to the facts of the case presently before this Court, I find a reasonable probability exists that the jury's exposure to the trial notes presents those "egregious circumstances" that are so inherently prejudicial that they raise the presumption of prejudice.
Determining "egregious circumstances." While determining whether the circumstances in a given case are inherently prejudicial necessarily turns on the special facts of that case, prior determinations by the Courts in other cases are helpful, and indeed illustrative, of those types of circumstances that will qualify as egregious circumstances.
In Hughes, the Delaware Supreme Court had occasion to address the situation where the jury had been exposed to information that the defendant previously had been tried and convicted for the same offense. In its decision, the Court stated:
Juror exposure (outside the courtroom) to information that the defendant was previously convicted for the same offense, is extremely prejudicial information. As one court has stated, "we are hard-pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged."Hughes at 1044 (quoting United States v. Williams, 5th Cir., 568 F.2d 464, 471 (1978)).
This sentiment is echoed in the Keating case where the Ninth Circuit Court of Appeals found unacceptable prejudice where the jurors either knew before trial or found out during Keating's trial in federal court that he had previously been convicted for the same conduct by a jury in state court. Keating at 902 ("Information that another panel of impartial jurors has already heard the case against the defendant and concluded, beyond a reasonable doubt, that he is guilty is highly prejudicial.").
In McCloskey v. State, the Delaware Supreme Court found a defendant was denied a fair trial and hence a mistrial was warranted where one juror had been intimidated by an "overbearing" jury foreperson and in-court and out-of-court interviews with the trial judge. Circumstances such as these were found to raise a presumption of prejudice. McCloskey v. State, Del. Supr., 457 A.2d 332, 338 (1983).
In another case, the Superior Court granted a new trial to a defendant where a gun admitted as evidence in his trial for possession of a deadly weapon by a person prohibited had a tag attached to it that said "robbery" on it. The defendant was not charged with robbery, and the Court found this to be sufficiently prejudicial to warrant a new trial. State v. Swanson, Del. Super., Cr. A. No. 92-01-0626, Goldstein, J. (May 20, 1992) Opinion and ORDER.
In McLain, the Delaware Superior Court discussed those situations where comments by a bailiff to the jury would be presumptively prejudicial. Where the bailiff's comments relate to the content or procedure of the jury's deliberations, indicate a view of the evidence, or introduce extra-record facts, a presumption of prejudice will arise. McLain v. General Motors Corp., Del. Super., 586 A.2d 647, 654 (1988).
Finally, where a state witness sat at the lunch table with a juror, even though they did not discuss the case, there was sufficient danger that the juror made judgments on the credibility of that witness based on out-of-court information to warrant a finding of inherent prejudice. State v. Deshields, Del. Super., Cr. A. No. 95-07-02 13, Carpenter, J. (Sept. 30, 1996) Opinion and ORDER ("While at first glance, the short lunch conversation appears harmless and incapable of creating bias in Juror #9, upon closer inquiry, it is clear that the circumstances are highly suspect, prejudicial and constitute egregious circumstances as contemplated by Hughes and it progeny.").
Cases where the Delaware Supreme Court has found the circumstances were not egregious or inherently prejudicial are likewise helpful in delineating this zone of danger. In Lynch v. State, the Supreme Court ruled that juror profiles published in a newspaper of general circulation did not constitute circumstances that were inherently prejudicial. Lynch v. State, Del. Supr., 588 A.2d 1138 (1991). Similarly, in Massey, the Supreme Court found that a juror's admission many years after trial that he was under the influence of drugs and alcohol during the trial did not constitute egregious circumstances. Massey 541 A.2d at 1258 ("Juror drug and alcohol use during trial is not comparable to the external influences found egregious by the federal case law followed by Hughes.").
Information contained in the "trial notes." As noted above, the trial notes consisted of a packet of materials that included a list of jurors, a list of exhibits, a list of potential verdicts, and the court clerk's daily notes. Most problematic of these items are the clerk's notes which form a sort of diary of the proceedings. These notes contain references to courtroom events that the jury should not know. For instance, in many cases, there are references to rulings on the admissibility of evidence that were made outside of the jury's presence. Indicative of those issues are entries relating to the defense request that the sound not be played on a video and a notation that "J. Stokes rules as to testimony of Ms. Falcone. Feels Ms. Falcone is certified by experience and education." The notes also refer to the Court's ruling on the proffered testimony of experts Mr. Heller and Mr. Albed. Finally, another note states that the "court addresses matter of phony bidding that was addressed on Monday."
In addition to the motions and rulings as to the admissibility of certain evidence, the notes refer to a number of other motions made by the defense. Included in the notes are references to the Defendants' Motions to Sever, Motions to Dismiss at the close of the State's case, and Motions for Acquittal.
Information in the trial notes is inherently prejudicial in nature . In reaching my decision that jury exposure to the information in the trial notes constitutes one of those egregious circumstances which is inherently prejudicial, I have carefully considered how the facts of this case relate to those prior decisions above.
Motions to Sever, Motions to Dismiss, and Motions of Acquittal not admissible evidence. An initial problem with the evidence in these trial notes, especially the Motions to Sever, Motions to Dismiss, and Motions of Acquittal, is that none of these matters are admissible evidence in the first place. Thus, this case can be distinguished from Lane v. State where the Delaware Supreme Court upheld a trial court's denial of a motion for mistrial where photos of the victim's autopsy, ruled inadmissible by the court, were inadvertently included with the exhibits sent back with the jury for deliberations. Lane v. State, Del. Supr., 222 A.2d 263 (1966). In holding this error was not prejudicial, the Court looked first at the nature of the evidence and then at the jury's exposure to the evidence. Id. at 266. The Court found that the "admission of photographs of this character generally lies within the discretion of the trial court . . ." and that only two jurors caught "fleeting glances" of the photographs before they were returned to the trial judge. Id.
This case also differs from that of U.S. v. Best where the Seventh Circuit Court of Appeals, en banc, ruled in a 6-5 decision that notebooks the State provided to the jurors for use during the trial containing copies of the admitted exhibits, and which were improperly sent back with the jury for deliberations, did not prejudice the defendant because the items in the notebook were merely copies of evidence that were properly admitted at trial. U.S. v. Best, 7th Cir., 939 F.2d 425 (1991). The dissent, authored by Judges Posner and Easterbrook, would have found that the notebooks were prejudicial despite the fact that the evidence was already admissible. The prejudice arose in the ordering and selection of the items in the notebooks. They found it akin to the prosecutor coming to the jury room and lining up the exhibits in such a manner as to provide a road map to guilt. Id. at 433.
The present case is more like that of State v. Swanson where the jury saw the tag on the gun that said "robbery." State v. Swanson, Del. Super., Cr. A. No. 92-01-0626, Goldstein, J. (May 20, 1992) Opinion and ORDER. As noted above, Swanson was charged only with possession of a deadly weapon by a person prohibited and not with robbery. Moreover, the Court was careful during trial to exclude any reference to a robbery so that the jury would not draw any unwarranted conclusions concerning the defendant. Id. at 2.
In the present case, the motions to sever, dismiss, and for acquittal were properly raised and ruled upon outside the presence of the jury. Moreover, these are items that have no place before the jury and would not likely be admissible under any set of circumstances. This is one factor that weighs in favor of finding the notes were inherently prejudicial.
Jury's exposure to the notes. Also important in this case is the fact that here, unlike in Lane, the jury had more than "fleeting glances" of the trial notes. The trial notes were in the jury room for at least one full day of deliberations. Moreover, voir dire indicated that individual jurors had varying levels of exposure to the notes. One juror indicated that he or she looked through the notes to see if their name was spelled correctly on the jury list. As the jury list was inserted between portions of the clerk's notes, this juror necessarily had to go through them. Other jurors indicated they used the exhibit list to locate exhibits. Because this list was at the end of the trial note package, the jurors had to leaf through the clerk's notes to get to the list. Finally, another juror indicated that he or she looked through the clerk's notes and saw when particular witnesses testified. These specific instances indicate that this jury had a significant degree of exposure to the trial notes.
The Court as the source of the notes. Another factor that weighs in favor of finding inherent prejudice is the source of the information. Courts in many jurisdictions have consistently found that information coming from official court-associated sources are especially troublesome. See Government of the U.S. Virgin Islands v. Gereau, 3rd Cir., 523 F.2d 140, 151 (1975) ("In addition to the Sixth Amendment, however, the duty of the court to protect the integrity of its own processes requires that no verdict be the product of partiality, or its semblance, on the part of the court. The duty is the more binding because of the weight jurors are likely to accord information emanating from court personnel." (Internal quotations and citations omitted.)).See also, U.S. v. Blackston, S.D. Ga., 547 F. Supp. 1200, 1217 (1982) (No prejudice from bailiffs comments where they did not relate to the evidence or introduce extra-record facts.).
Most frequently, this problem arises in the context of statements by bailiffs to individual jurors or the jury as a whole. How the courts rule on the issue most often turns on whether the remarks relate to the content or procedure of the jury's deliberations, indicate a bailiffs view of the evidence, or are statements that introduce extra-record facts. See McLain at 654 (Bailiff's statement that jury would have to return next day if they did not reach a unanimous verdict was held not prejudicial in nature.).
The United States Supreme Court has also weighed in on the issue of statements by bailiffs. In Parker v. Gladden, the Court found a defendant was denied a fair trial where a bailiff escorting jurors stated: "Oh that wicked fellow, he is guilty", and on another occasion stated to the jury that the Supreme Court could correct any problems with the verdict they issued. Parker v. Gladden, 385 U.S. 363, 363-364 (1966). The Court ruled that "the official character of the bailiff — as an officer of the court as well as the state — beyond question carries great weight with a jury he had been shepherding for eight days and nights. . . .[T]he unauthorized conduct of the bailiff `involves such a probability that prejudice will result that it is deemed inherently lacking in due process.'" Id. at 365. See also, U.S. v. Bensinger, 7th Cir., 492 F.2d 232, 237 (1974).
In Turner v. Louisiana, the Court was faced with a slightly different problem. Turner v. Louisiana, 379 U.S. 466 (1965). In that case, the bailiffs in charge of the jury were also significant witnesses for the government. The potential prejudice did not necessarily arise from any statements by the bailiffs but rather from the danger the jury would give their testimony undue credibility. The Court stated that "even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution." Id. at 473.
Like the case currently under consideration, another way jurors may be improperly exposed to information from official court sources is through court records. The Vasquez case is factually quite similar to this case because the official court file was inadvertently sent back with the jury during their deliberations.U.S. v. Vasquez, 9th Cir., 597 F.2d 192 (1979). The Court in finding this error prejudiced the defendant noted that some members of the jury had leafed through the file and that one remembered seeing a motion to dismiss. Id. at 194.
In the case before this Court, we are faced with circumstances that I find to be more egregious than those where a bailiff has made statements to the jury. Where a trial judge has ruled on motions to dismiss or motions for acquittal, it is as if the judge has made explicit statements concerning the sufficiency of the evidence. Specifically, the judge has stated that there is, or is not, sufficient evidence of guilt for the jury to hear the case. It is a well-settled constitutional principle in this state that a trial judge may not comment to the jury on the facts of the case. Del. Const. art. IV, § 19 (1897). This is so because it is "the policy of the law of this state, declared by the courts in numberless decisions, the jury is the sole judge of the facts of the case, and so jealous is the law of this policy that by express provision of the Constitution, the court is forbidden to touch upon the facts of the case in its charge to the jury." Storey v. Camper, Del. Supr., 401 A.2d 458, 462 (1972). Moreover, in an early case, the Superior Court held that to indicate to the jury that one side's evidence outweighed the other would violate this separation of duties. Baltimore O.R. Co. v. Hawke, Del. Super., 143 A. 27 (1928).
Del. Const. art. IV, § 19 (1897). "Judges shall not charge juries with respect to matters of fact, but may state the questions of fact in issue and declare the law."
Consequently, these motions are heard and ruled upon outside the presence of the jury. Hearing these motions in the presence of the jury would be no different from the trial judge saying directly to the jury that he or she believes the State has presented sufficient evidence of guilt to go forward with the case. No prosecution is entitled to this stamp of approval. For this reason, the references in the trial notes represent such egregious circumstances as to warrant a presumption of prejudice.
Special voir dire and instructions did not cure defect. Despite the Court's best efforts, I cannot say that the special voir dire or instructions were sufficient to relieve the prejudice inherent in the jury's exposure to the trial notes. In Swanson, Judge Goldstein found himself in a similar position.
I find that my instruction to the jury, and the jury's representations later that they understood and followed that instruction did not sufficiently alleviate the potential prejudice inherent in the jury's consideration of this information. Although cautionary instructions and jurors' assurances are often adequate to overcome prejudice, it cannot be said that they are always adequate, and in this case I do not find that they rendered the prejudice harmless.Swanson at 3.
This view of juror statements concerning their ability to impartially weigh the evidence, despite exposure to extra-record prejudicial information, is echoed in the opinions of other courts. See Sheppard v. Maxwell, 384 U.S. at 351 (". . . [W]e did not consider dispositive the statement of each juror `that he would not be influenced by the news articles, that he could decide the case only on the evidence of record, and that he felt no prejudice against petitioner as a result of the articles.'");U.S. v. Berry, 92 F.3d at 601 (Trial judge found instruction insufficient to overcome prejudice.); U.S. v. Keating, 147 F.3d at 903 ("Juror's testimony that extrinsic evidence is not harmful is not controlling."); Hughes v. State, 490 A.2d at 1046 (Juror knowledge of defendant's prior conviction "is so fraught with prejudice that the constitutional due process defect is not cured either by jurors' assurances that they could remain impartial or by judge's admonition to disregard the knowledge.").
Chief Justice Marshall, almost 200 years ago, recognized this problem A person "may declare that he feels no prejudice in the case; and yet the law cautiously incapacitates him from serving on the jury because it supposes prejudice, because in general persons in a similar situation would feel prejudice."United States v. Burr, 25 F. Cas. 49, 50 (no. 14,692g) (CCD Va. 1807).
Finally, it is significant that when asked as a body if the jury had seen the trial notes, only four jurors raised their hands but upon individual voir dire eight indicated they had seen the trial notes. See U.S. v. Perkins, 748 F.2d at 1532 (" . . . [T]he honesty or dishonesty of a juror's response is the best initial indicator of whether the juror in fact was impartial.").
The State has not shown the error harmless. Once the presumption of prejudice has attached, a defendant will be granted a new trial unless the State presents compelling evidence that the error was harmless. In this case, the State argues that the only potentially prejudicial statement in the notes was the reference to the "phony bids" and that the jurors' assurances that they would decide the case only on the evidence properly admitted at trial were sufficient to overcome any prejudice. In light of the discussion above, I do not find that the State has presented sufficient evidence to rebut the presumption of prejudice that accompanies these egregious circumstances.
CONCLUSION
The Defendants' Motion for a New Trial is granted. The jury's accidental exposure to the trial notes constitutes one of those egregious circumstances where a presumption of prejudice arises. References to the motions to sever, dismiss, and for acquittal, as well as to excluded evidence, are not matters to which the jury should be exposed. Moreover, the jury's exposure to the notes was prolonged and not minimal. Particularly harmful was the source of the extra-record information. These notes were from the Court and jurors' knowledge of the motions and their disposition would be akin to the trial judge commenting on the evidence. This is prohibited. In the jury room, the credibility, strength, and effect of the evidence must be measured apart and be immune from outside rulings. The judiciary must retain neutrality and cannot be seen as giving a helping hand to either side in our adversarial system of justice. These factors lead to the inevitable conclusion that the jury's exposure to the Court's trial notes constitutes one of those egregious circumstances that is inherently prejudicial. Thus, the Defendants were denied their right to a fair trial as guaranteed by both the United States Constitution and the Constitution of the State of Delaware.
In closing, I regret this action is necessary. The accidental inclusion of the trial notes in the box of exhibits is one that could have occurred during any trial. The fact that it happened at the end of a five-week trial, while unfortunate, is immaterial. While I realize that extensive resources of all forms were expended in bringing this case to trial, a citizen's rights will not be compromised to save time. The Constitutions of the United States and the State of Delaware guarantee everyone a fair trial. Considering the foregoing, the Defendants' Motion for a New Trial is granted.
IT IS SO ORDERED.