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affirming trial court's instruction that the jury may "draw a reasonable conclusion about the defendant's state of mind from the facts and circumstances surrounding the act the defendant is alleged to have committed."
Summary of this case from IN RE ASBESTOS LITIGATION HELMOpinion
Cr.A. No. N04062739A.
Submitted: September 12, 2005.
Decided: December 29, 2005.
Upon appeal of the conviction and sentence of the defendant in the Court of Common Pleas. AFFIRMED.
ORDER
This 29th day of December, 2005, upon consideration of Appellant, Christopher Walls' opening brief filed pursuant to Supr. Ct. R. 26(c) (as incorporated by Super. Ct.Crim. R. 39(c)), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
1. On May 12, 2004, Mr. Walls was tried in the Court of Common Pleas on one count of Terroristic Threatening in violation of DEL. CODE ANN. tit. 11, § 621, and one count of Assault in the Third Degree in violation of DEL. CODE ANN. tit. 11, § 611. The jury acquitted Mr. Walls of Terroristic Threatening and found him guilty of Assault Third Degree. On June 18, 2004, the trial court sentenced Mr. Walls to one-year at Level V, with credit for 39 days served, suspended after 120 days for six months at Level IV, followed by six months at Level III.
2. Mr. Walls' counsel filed an appeal and brief on his behalf and a motion to withdraw pursuant to Supr. Ct. R. 26(c) as is authorized under Super. Ct.Crim. R. 39(c). In counsel's motion to withdraw, she contends that she has made a conscientious examination of the record and the law and has concluded that an appeal is wholly without merit. Counsel also states that copies of the appellant's brief, motion to withdrawal, and trial transcript were sent to Mr. Walls on June 10, 2005, with instructions advising Mr. Walls that he could state, in writing, any point he wanted the Court to consider on appeal. Mr. Walls thereafter submitted several points and issues for the Court to consider, all of which were incorporated into the appellant's brief. The State has responded to the motion to withdraw and the appellant's brief, including the issues raised by Mr. Walls, and requests that the Court affirm the judgement of the Court of Common Pleas.
See Docket Item ("D.I.") 1; D.I. 15; D.I. 16.
See Jamison v. State, No. N94-08-1660AC, 1995 WL 716806, at *1, fn. 2 (Del.Super.Ct. Oct. 27, 1995) ("[T]he Superior Court unanimously voted to amend Super. Ct.Crim. R. 39(c) so as to specifically authorize utilization of Supr. Ct. R. 26 in appeals coming before this Court. This amendment was approved by the Delaware Supreme Court on October 26, 1995.").
D.I. 15.
See Supr. Ct. R. 26(c)(ii).
D.I. 16.
D.I. 17.
3. It appears from his brief that Mr. Walls claims: (1) the conviction was not supported by sufficient evidence; (2) the trial court improperly influenced jury deliberations; (3) the jury instructions were deficient; (4) the trial court failed to rule on several of defense counsel's objections; (5) witnesses were not sequestered as the trial court had instructed; (6) the sentence exceeded the prescribed limits for a class A misdemeanor; and (7) the trial court considered matters outside the evidence in sentencing the defendant.
See D.I. 16.
4. The standard and scope of review applicable to a Rule 26(c) motion to withdraw and an accompanying brief is two-fold: "(a) the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that arguably could support the appeal; and (b) the Court must conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation." If the Court finds "`any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.'"
Purnell v. State, No. 20, 2000 WL 1508594, at *1 (Del. Sept. 15, 2000). See also Jenkins v. State, No. 12, 2005 WL 2475720, at *1 (Del. Aug. 17, 2005).
Penson v. Ohio, 488 U.S. 75, 84, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (quoting Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)). See also Supr. Ct. R. 26(c)(iii).
5. This case arises from an altercation that took place just after midnight on July 17, 2003. Cynthia Robinson and her husband William Timchak were having a drink at McAvaney's Pub on Kirkwood Highway. At the opposite end of the bar was Mr. Walls, who was conversing with another person. Mrs. Robinson testified that Mr. Walls was eight to ten bar stools away, but he was speaking loud enough that she could clearly hear his conversation. According to Mrs. Robinson, Mr. Walls was talking about a robbery that he had committed a few years earlier which coincidentally involved Mrs. Robinson's mother. Mrs. Robinson testified that she sent Mr. Walls a drink with a message that she was the daughter of the woman he had robbed. She testified that she made this gesture in the hopes that Mr. Walls might stop talking about the robbery. Instead, the gesture started a verbal altercation between the two. After the verbal altercation ceased, Mrs. Robinson returned to her bar stool when, according to witnesses, Mr. Walls approached her from behind and punched her in the head with a closed fist, knocking her to the ground unconscious.
See D.I. 16; D.I. 17.
A. Sufficiency of the Evidence
6. Mr. Walls contends that there was insufficient evidence presented at trial to prove Assault in the Third Degree. In "reviewing the sufficiency of the evidence, this Court must decide whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the charged offense beyond a reasonable doubt."
Landis v. State, No. 523, 2005 WL 2475714, at *3 (Del. Aug. 18, 2005). See also Nicholson v. State, No. 297, 1998 WL 112533, at *3 (Del. Jan. 26, 1998).
7. A conviction of Assault in the Third Degree requires the State to prove beyond a reasonable doubt that the defendant "intentionally or recklessly cause[d] physical injury to another person." Here, the evidence at trial was derived from several witnesses who testified that they saw Mr. Walls hit Mrs. Robinson with a closed fist causing her to lose consciousness and sustain bruising and swelling around her nose and eyes. Mr. Walls did little in the way of refuting this testimony and instead relied upon the fact that Mrs. Robinson did not actually see Mr. Walls strike her. Viewing such evidence in a light most favorable to the prosecution, a rational trier of fact could easily have found that Mr. Walls intentionally or recklessly caused physical injury to Mrs. Robinson.
11 DEL. CODE ANN. tit. 11, § 611(1).
D.I. 4 at 48, 77-78, 80, 84, 92, 117-119.
Id. at 127.
B. Jury Deliberations
8. After the trial judge charged the jury on the applicable law, he addressed the members of the jury and stated:
Ladies and gentlemen, I suggest that you go now and begin your deliberations. Deliberate for a reasonable period of time, based on the hour of the day, to see how close you are to a verdict. There is the option at some point in time, I don't know when that point comes, where you may say that you need more time to deliberate, and you prepare to, to return. That's up, that depends on how things go in the jury room. What I'd ask you to do now is go with the bailiff and begin deliberations.
Id. at 139.
The jury began its deliberations at 4:44 p.m. and returned with its verdict at 5:05 p.m. After the jury returned, the judge asked the jury if the time of day had influenced their decision, to which the jury unanimously replied that it had not. Mr. Walls now claims that the judge's remarks to the jury prior to their deliberations improperly influenced the jury and caused it to deliberate for only twenty-one minutes.
Id. at 144.
Mr. Walls also cites to several other instances throughout the trial where he alleges the judge's comments "gave the jury the impression of things being in a rush." See D.I. 16. However, most of the comments Mr. Walls refers to occurred while the jury was not in the courtroom. And, the few remarks that Mr. Walls complains of that were made in the presence of the jury, such as limiting their lunch break to fifty (50) minutes and instructing the bailiff to hand out the jury instructions "quickly," do not suggest that the trial judge was encouraging the jury to "rush" in making its decision. See D.I. 4 at 8, 23, 26-28, 30, 75, 121, 130, 134.
9. "A conviction will not stand if the judge's conduct towards the jury `in its context and under all the circumstances . . . had a coercive effect.'" Here, there is nothing to indicate the judge's comments to the jury prior to their deliberations were coercive. The judge did not pressure the jury to reach a verdict that day and the jury, in response to the judge's question, responded unanimously that the time of day was not a factor in its decision. Moreover, this trial involved only two misdemeanor counts and lasted just over two-hours from start to finish. Therefore, given "`the time frame in which the case was tried and the issues put to the jury, the circumstances were not coercive as a matter of law.'"
Younger v. State, 496 A.2d 546, 553 (Del. 1985) (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965)).
Younger, 496 A.2d at 553 (quoting Styler v. State, 417 A.2d 948, 951 (Del. 1980)).
C. Jury Instructions
10. Mr. Walls contends that there was a "problem" with the "state of mind" jury instruction, but does not assert a specific reason why the instruction is flawed. "A trial court's charge to the jury will not serve as grounds for reversible error if it is `reasonably informative and not misleading, judged by common standards of verbal communication.'" The trial court here used a pattern criminal jury instruction to explain that when an element of a criminal offense involves the "state of mind" of a defendant [and] "it is difficult to know what is going on in another person's mind, you are [therefore] permitted to draw a reasonable conclusion about a defendant's state of mind from the facts and circumstances surrounding the act the defendant is alleged to have committed." The Court finds this pattern instruction to be reasonably informative and not misleading.
Probst v. State, 547 A.2d 114, 119 (Del. 1988) (quoting Baker v. Reid, 57 A.2d 103, 109 (Del. 1947)).
D.I. 4 at 132.
11. Mr. Walls also claims that the trial court erred by initially not instructing the jury about his constitutional right not to testify. Moments after the jury left the courtroom to begin deliberations, Mr. Walls informed his counsel, who then informed the judge, that the court had not given the jury instruction about the defendant's election not to testify. The judge immediately sent for the jury and gave the omitted instruction. Following the instruction, the judge asked if there had been any mention of the fact that Mr. Walls had not testified in response to which the jury indicated that the matter had not been discussed. The jury exited the courtroom and the judge stated "if you remember back when I gave the original instructions in the beginning, I mentioned the fact that [Mr. Walls] had no obligation to testify, and I reinforced that here now. So, I don't see any, any prejudice at this point since . . . [the jury] didn't discuss it." This Court also does not find any prejudice in the initial omission of the instruction because it was remedied immediately, the concept had been discussed with the jury at the outset of the two-hour trial, and the jury made it clear that it had not discussed the fact that Mr. Walls had not testified in the brief time they were deliberating without the instruction.
Id. at 142-143.
D. Defense Objections at Trial
12. Mr. Walls claims that the trial judge failed to rule on two defense objections. The first objection occurred while Mrs. Robinson was testifying. She was shown a photograph of her arm by the deputy attorney general and, in responding to a question about how she sustained a bruise on that arm, she stated, "From what I understand, from what I hear, he grabbed me by my arm[.]" Defense counsel objected and the judge immediately informed Mrs. Robinson that she could not testify to anything someone else told her unless that person was there to testify as a witness. The second objection occurred after the deputy attorney general attempted to admit into evidence that same photograph of Mrs. Robinson's bruised arm. The judge heard argument on the objection at side bar and eventually ruled that the photograph could not be admitted. On both objections, therefore, the court ruled in favor of Mr. Walls even though the judge did not use the word "sustained."
Id. at 50.
Id. at 55.
13. Mr. Walls also argues that the trial judge should not have permitted witnesses to testify as to what Mr. Walls allegedly said to Mrs. Robinson during the initial verbal altercation because such statements were hearsay. Delaware Uniform Rule of Evidence 801(d)(2)(A) provides that a "statement is not hearsay if . . . [t]he statement is offered against a party and is his own statement[.]" Here, Mrs. Robinson testified that she heard Mr. Walls say "she's dead, you're dead, your family's dead." And Mr. Timchak testified he heard Mr. Walls state "I'll kill you." These statements were offered against Mr. Walls at trial and were his own statements. They were admissions of a party-opponent and not hearsay.
Id. at 45.
Id. at 77.
See Del. R. Evid. 801(d)(2)(A); State v. Scott, 2002 WL 485790, at *4 (Del.Super.Ct. Feb. 7, 2002) (Two witnesses' testimony as to what criminal defendant told them "qualifies as [an] admission of a party-opponent under [Del. R. Evid.] 801(d)(2)(A), and is therefore not hearsay at all.").
E. Witness Sequestration
14. Mr. Walls' next complaint is in reference to the testimony of witness Regina Zimmerman on cross-examination at trial. Ms. Zimmerman testified that she had conversed with Mrs. Robinson at the courthouse prior to testifying that day. Mr. Walls now alleges that the conversation between the two was in violation of the judge's sequestration order and therefore prevented him from receiving a fair trial because they were "getting their stories together." However, the conversation between Ms. Zimmerman and Mrs. Robinson occurred in the morning, well in advance of the sequestration order entered by the court prior to the start of the trial. Mr. Walls' allegation that the sequestration order was violated is without merit.
See id. at 96-97.
Id. at 23-25.
F. Sentencing
15. Mr. Walls' last two claims concern his sentencing. First, he argues that his sentence exceeded the statutory maximum penalty (one-year at Level V) because he received one-year at Level V, with credit for 39 days served, suspended after 120 days for six months at Level IV, followed by six months at Level III. Under DEL. CODE ANN. tit. 11, § 4206(d), "[t]he court may suspend any sentence imposed under this section for probation or any of the other sanctions set forth in § 4204 of this title." Further, DEL. CODE ANN. tit. 11, § 4204(m) provides, "[t]he duration of any order entered pursuant to this subsection shall not exceed the maximum term of commitment provided by law for the offense or 1 year, whichever is greater[.]" The trial judge here was permitted under sections 4206(a) and (d) to sentence Mr. Walls to up to one year in jail, and to suspend a portion of Mr. Walls' Level V sentence for Level IV and Level III supervision. Moreover, under section 4204(m), it was within the judge's discretion to sentence Mr. Walls to up to one-year of probation following his Level V sentence. Accordingly, Mr. Walls' sentence does not exceed the statutory maximum penalty.
See DEL. CODE ANN. tit. 11, § 611; DEL. CODE ANN. tit. 11, § 4206(a) ("The sentence for a class A misdemeanor may include up to 1 year incarceration at Level V and such fine up to $2,300, restitution or other conditions as the court deems appropriate.").
16. Mr. Walls also claims that the trial judge used facts not in evidence when imposing his sentence by allegedly misquoting and misrepresenting some witnesses' testimony from trial. "When a sentence is within the statutory limits, this Court will not find error unless it is clear that the sentence was unconstitutional or was based upon factual predicates which are either false, impermissible, or lack minimum indicia of reliability." Having already determined that Mr. Walls' sentence was within the statutory limits, there is nothing in the record to suggest that the judge did more than simply summarize the testimony of some witnesses before imposing the sentence. The sentence was constitutional, based upon permissible and reliable information, and was the "`logical deliberative product of an open-minded jurist.'"
Jenkins, 2005 WL 2475720, at *2.
D.I. 4 at 7-11.
Jenkins, 2005 WL 2475720, at *3 (quoting Siple v. State, 701 A.2d 79, 86 (Del. 1997)).
17. The Court has carefully reviewed the record and has determined that Mr. Walls' appeal is wholly without merit and devoid of any arguably appealable issue. The Court is also satisfied that Mr. Walls' counsel has made a conscientious effort to examine the record and the law and has properly determined that Mr. Walls could not raise a meritorious claim in this appeal.
18. Accordingly, the judgment of the Court of Common Pleas is AFFIRMED. The motion to withdraw is moot.
IT IS SO ORDERED.