*1 DEPUTY, Stanley Andre Defendant
Below, Appellant, Delaware,
STATE Plaintiff
Below, Appellee.
Supreme Court Delaware. 7,May
Submitted: 1984. July 31,
Decided: *3 Delaware, Inc., Union of as ami-
Liberties cus curiae. HERRMANN, C.J., McNEILLY,
Before JJ., HORSEY, CHRISTIE, MOORE and constituting en the Court banc. HERRMANN, HORSEY, Justice, Chief CHRISTIE, Justices: MOORE Stanley Andre was convicted murder, two two counts of intentional murder, first one count of counts of *4 degree posses- robbery, one count of and deadly during the com- weapon sion of a arising from the all felony, mission of a Byard and robbery and of Alberta deaths penalty hear- Following separate Smith.1 ing, sen- the death the defendant received degree four first tence for each of the murder convictions. numer- appeal
In sets forth this require re- grounds ous contends which he entered in judgments versal of the both A guilt trial. penalty phases his principal is that defendant’s contention was vio- right to counsel Sixth Amendment interrogated further lated when was committing magis- police after a State custody of him to the remanded trate had Although of bail. prison in lieu authorities prior statement made defendant had court, the later appearance in at his before a sec- committment interrogation after his provided given, which ond statement was his conviction evidence to sustain essential charges. murder on two intentional constitutional vio- nature Given the defend- lation, that the must conclude we (cid:127)Gary Dodge (argued), Dodge & R. police to the statement ant’s second Johnson, P.A., Dover, O’Brien, Dean C. was, there- the crime he confessed to Lewes, appellant. for at his trial. We fore, improperly admitted Georgetown, Gary Myers (argued), A. inten- defendant’s accordingly reverse Parkins, (argued), Wilmington, John A. Jr. find the but error tional murder convictions Reed, Dover, Department of and Dana C. felony convic- murder harmless as Justice, appellee. for any of no merit in Because find tions. we contentions, con- we Wilmington, other Hagerty, the defendant’s Catherine B. murder convictions Dover, Williams, clude that for American Civil John Flamer, co-defendant, Upon appeal, affirmed. penalty. this Court Henry Deputy’s William separately convicted of the mur- was tried Flamer death herein. Flamer received the ders outlined penalty imposed and the death description those matched Henry that of William convictions should be Flamer, affirmed. nephew of the deceased who lived near the Smith residence with his
GUILT PHASE grandmother defendant, Deputy. and the I. When the detectives went to Flamer’s home, grandmother told them The State’s evidence revealed the follow- there; nor, Flamer was not did she have ing: any knowledge of his whereabouts. She Early morning February permitted police to search the second floor Police, the Delaware State stationed of the house for They Flamer. discovered Troop Bridgeville, report 5 in received a paper bags brown containing items of fro- apparent of an double homicide west of zen food similar to those found at Harrington, Delaware. addition, Smith residence. police Calloway Detectives Chaffinch and re- bayonet, seized a stained ap- with what sponded arrived, report. they When peared blood, to be dried bayonet and a Harrington officers from the Police closet, sheath. In a first-floor the detec- Department already scene, were set, tives found a television the cable from along son, with the decedents’ Arthur B. piece which matched the of cut antenna Smith, who had discovered the bodies of his cable left in the Smith residence. Smith, parents, Byard and upon Alberta *5 evidence, Based on this entering detectives the house. obtained a warrant for Flamer’s arrest. parents, elderly His couple, an had been While at Justice of the Peace Court brutally Smith, stabbed to death. Mr. who report detectives received a that Flamer years old, was weighed 5'6" tall and Tavern, had been seen at the Blue Moon lbs., had separate received 79 stab wounds. Woodside, Delaware, south of on Route 13. wife, old, His years weighed who was 69 police detectives, accompanied Three State tall, lbs. and was 5'4" had sustained 66 officers, Harrington police two drove to separate stab wounds. The wounds each the Blue Moon Tavern. victim sustained varied in size. From the wounds, size of the the medical examiner Flamer, recognized One of the detectives was subsequently able to determine that walking compan- down Route 13 with two each had been weap- stabbed with two ions, defendant, Coleman and the Ellsworth ons —a bayonet-type knife and a smaller Stanley Deputy. Andre All three were knife. stopped weapons; although and frisked for police Deputy’s felt a wallet back police found missing certain items pocket, they did not remove it. All three First, from the couple’s home. had Smith were read Miranda warnings. Flamer noticed that his father’s missing car was pursuant was arrested to the warrant. driveway. from the The television set was identification, When asked if he had gone, also its apparently antenna cable cut Deputy replied that he did not. When Bags with a knife. of frozen food were name, Deputy replied in asked his an strewn about the scene. Police found the manner, lying identity, about his “evasive” pin watchband of a watch as well. although police were unaware of the they investigating scene, While were misrepresentation at the time. All three report the two detectives a received that p.m. custody were taken into at 3:15 belonging the car to the deceased had been Troop transported arriving were at Felton, located north of Delaware. Inter- p.m. 4:00 yielded views of Felton area residents a description Upon arriving Troop of the man believed to have at Flamer told morning. police Deputy abandoned the car earlier that A the that him had awakened family police morning accompany Smith told that him member and asked however, Deputy and asked Deputy poly- house to remove some take a to the Smith said, graph Deputy agreed. test. There, Due to he found the a food. Flamer time, snow storm2 and Detective Chaffinch’s de- other de- Smiths dead. At the same further, question Deputy him did sire to interrogated Deputy. He read tectives appearance before make his initial a rights, he indicated his Miranda day3 and was held ov- judicial officer that if he wished to understood. When asked Bridgeville Depart- Police ernight at the attorney, Deputy response. no see'an made ment. pocket, Deputy’s police coat found They belonging Byard wallet Smith. Troop transported Deputy to police watches, also two one of which found morning. the next A approximately 9:00 pin. Deputy told missing its watchband hours polygraph test administered two given test, him wal- police Deputy that Flamer had undergoing Before later. signed acknowledging let. written form warnings. request He did not Miranda Depu- Based on Flamer’s statement Deputy told lawyer.4 When the examiner ty’s victim’s wallet and possession polygraph, Deputy that he had failed the watch, pin missing a which was watchband accompanied Flamer police that he had told scene, Deputy like one found at the residence to obtain some to the Smith’s p.m. approximately was arrested at 4:30 ensued, argument Flam- money. anWhen given Deputy Because Flamer and had stabbing Byard Alberta began er Smith. conflicting involve- stories as to other's stop at- begged Deputy to had Smith murders, their ment in the continued nothing tack, Deputy and went but did p.m., questioning. approximately At 6:00 taped then Detective Chaffinch home. identity and Deputy’s Flamer revealed true Deputy’s statement. Wilmington police had out- stated Deputy took before Detective Chaffinch ar- standing Deputy’s murder warrant for ap- his initial of the Peace for the Justice information, verifying that rest. After p.m. 2:00 At approximately pearance war- Police on that State arrested again hearing, Deputy was read his *6 police approximately p.m. 7:00 rant at penalties he rights and told of the Miranda provided then dinner for the two men. then com- The Justice of the Peace faced.5 evening, Deputy During questioning Deputy to Correctional mitted the Sussex (hereinafter “S.C.I.”), telling in default that he was Institute told Detective Chaffinch him, of bail. did not believe the truth. Chaffinch snowfall, lawyer would Harrington Q. asked for a
2. heavy If a result of As given form] waiver to p.m. he written [a of the Peace had closed at To been [have] Justice bring magis- committing sign? the defendant before night stopped. would have necessitated drive have Had trate No. We would A. attorney to Dover under hazardous conditions. have been no there would asked questions. no fur- would have continued We 5(a) provides, Super.Ct.Crim pertinent R. ther. part: 2(b) (a) Appearance. making provides: officer Initial An 5.J.P.Crim.R. any a warrant or an arrest with without Committing (b) Justice of Statement peace officer shall take the other authorized committing of the Peace Justice Peace. The delay person without unreasonable arrested complaint the defendant shall inform against available Justice of the before the nearest counsel, him, right of his to retain county in which offense Peace hearing. right preliminary He have a to his committed, judge alleged to have been defendant that he also inform the shall Wilming- City Municipal Court for the any state- required to a statement and make ton, the warrant or the court out against may be used him. made him ment with the command of in accordance issued committing Peace shall allow Justice of the the warrant. opportunity reasonable time the defendant the defend- and shall admit consult counsel testi- 4. The detective who administered test provided in these rules. to bail as ant hearing suppression as follows: fied at Deputy Troop was taken back to 5 to Deputy returned. Chaffinch talked to “... transportation Troop await At S.C.I. getting telling the truth. About [a]bout questioned Deputy Detective Chaffinch the truth about the incident.” At 9:50 briefly arrangements while were made to p.m., gave Deputy taped another statement Deputy prison. commit Uniformed offi- during which he confessed his involvement Deputy cers then left with headed for in the crime. S.C.I. Deputy At that time said that he and However, ignored Detective Chaffinch gone Flamer had to the Smith’s to obtain judicial commitment order and directed money. argu- The Smiths refused and an bring Deputy the officers to Troop back to began stabbing ment ensued. Flamer questioning light 5 for further of dis- Byard begged Smith and Alberta Smith crepancies Deputy’s story and new infor- Deputy stop Deputy got the attack. provided by Flamer. mation After knife from Flamer and stabbed Alberta polygraph, Deputy had stated that he had Byard Smith. Flamer continued to stab gone money, to the Smith’s to obtain but using Smith Deputy another knife. After started, stabbing had left when without Smith, appeared stabbed Alberta she to be Yet, having obtained funds. when he dead, Deputy Shortly returned home. custody, was taken into he had in his $25 Therefore, thereafter, pocket. Flamer carrying Chaffinch arrived items wondered why Deputy money needed to obtain gave from from the home. Deputy Smith’s He already Smith’s when he had funds. money. Deputy some said that he killed Moreover, Deputy making while his Alberta Smith out of fear that she would appearance magistrate, before the Flamer report police. them to the had told Deputy that both he and Deputy again had read been the Mi- had participated in stabbings, using warnings questioning randa before the be- two knives. Police then located the second gan. completed After had knife at the scene of the arrest. statement, he was asked his under- about cross-examination, On Chaffinch admit- standing rights: of his Miranda ted that he judicial violated the commit- Q. you explained your O.K. Have been ment order because try wanted to “[he] rights, your right to silent Miranda be get the correct statement from him.” He rights attorney to an and all that? testified further: A. Yes.
Q. you What would characterize as a correct statement? Q. many you How times have been told A. Truth. that, you’ve apprehended? since been *7 Q. A confession? 2 A. About or 3. Yes, you A. say could that. Q. you you Have been asked if want to Deputy Troop arrived back at 5 at about attorney? see an 4:30 p.m. or 5:00 and Detective Chaffinch A. Yes. questioned briefly him about these con- Q. you opportunity Have had an to talk departed cerns. Chaffinch then for a meet- attorney you to an if wanted to see one? ing Seaford, Deputy in he but told that he A. Yes. would questioning continue the when he in returned about one hour. Chaffinch tes- Deputy suppress moved to all evidence Deputy: tified that he told him seized from and all statements made IWhen come back we will sit down and during period his of After detention. get put taped the whole truth and it on a hearing, Superior granted Court you statement and will be taken to S.C.I. suppress. motion to of Del- State appealed this We re- Deputy jail ap- held in aware to Court. cell until versed, proximately night pursu- finding 9:30that when Chaffinch the initial detention 588 presence Del.C. 11 have ant to 19026 to been established defendant’s at § Deputy, v. Del.Supr., murders,
lawful. State 433 Smith time of the residence 1040 A.2d made 20 about hours after he was first custody. Relying upon McNabb into taken trial, jury After a was convicted States, v. United U.S. 63 318 S.Ct. murder, of of two counts intentional two Mallory (1943) 87 819 L.Ed. and murder, of count counts one of rob- States, United 354 U.S. bery degree in first and one of count (1957), 1 L.Ed.2d the defendant ar- 1479 possession deadly weapon during of a gues prior length his detention felony. of a commission have rendered the statement should II. statement inadmissible. McNabb adopted the This Court A. State, Mallory Vorhauer v. in Del. rule8 above, As the defendant noted made two (1965), Supr., 212 decided to A.2d 886 and incriminating statements which were re- during a deten exclude evidence obtained by police; prior one corded was made period tion which the 24 hour exceeded appearance and one after his initial in in the Del.C. Vo specified 11 1911.9 In § the Justice of the Peace Court. Both state- rhauer, any detention ex was held that defendant, challenged ments were ceeding be considered an 24 hours would first, suppression hearing, at the and later illegal delay, deten and an unreasonable Following trial. the remand law, delay unless the tion as a matter of Court, the trial court decided that state- permissible delay criteria. met the section’s voluntarily were made ments and were during made Any inculpatory statements police.
properly by the The de- obtained in illegal be rendered detention would in fendant asserts that the trial court erred admissible. its determination. less than hours delay Faced with a The defendant contends that his first re- Del.Supr., Webster in statement, incriminating corded made on (1965), that: this Court stated 8th, morning February was admitted “unreasonable”, Superior delay may be and into evidence violation of [A] statement, Statute, 5(a).7 and the Criminal Rule His violation of Rule during incriminatory provides: or statement obtained § 6. Del.C. in evidence. unlawful is inadmissible detention (a) peace may stop person A officer 5(a), adopted after Federal Criminal Rule abroad, public place, or in a has who reasonable McNabb, brought requires be a defendant ground suspect committing, has committed magistrate "unnecessary” de- before without crime, may isor about to commit a demand lay. The to “unreason- Delaware Rule refers name, address, him business abroad 5(a). delay. Super.CtCrim.R. able” going. where (b) Any person questioned so who fails predecessor to 11 Del.C. 9. 11 Del.C. 1911 was § identify explain himself his actions to the 1909. § may satisfaction of officer be detained questioned investigated. further language used 1909 is identical § (c) period provided The total detention 1911 and reads follows: § Hearing delay; permissible this section shall not exceed 2 hours. The without delay. detention is not an arrest and shall not be re- *8 released, any every person corded arrest record. At ar- as an in official If not otherwise magistrate brought person a end the so detained be before the of the detention rested shall delay, any charged in event be and without unreasonable and shall released or be arrested shall, brought possible, 24 be so within he if with a crime. arrest, Sundays holidays exclud- hours of ed, supra county note 3. judge 7. the unless a resident county is detained or of the where where he good cause McNabb-Mallory crime was committed for The rule was derived from the 8. States, a Mallory he be held for further v. shown orders that period McNabb v. United United States, rule, exceeding of not 48 hours. supra. confession Under this
589
though
brought
custody
than 24
in
on Feb-
less
hours
duration.
after he was
into
But no clear-cut standards of reasonable-
ruary 7th.
defendant
then trans-
The
prescribed.
may
ness
be
ease must
Station,
Each
ported
Bridgeville
to the
Police
judge
be considered
the
on its
trial
night.
following
where
the
spent
he
facts;
own
and the
of hours of
number
morning he was returned to Delaware
prior
appearance
detention
before a
Troop
State Police
where he consented to
Justice
Peace is
of the
to be considered
examination,
polygraph
a
after
judge, together
the
with
trial
all of
no evi-
made his statement. There was
case,
the
the other circumstances of
in
police
dence that the
acted in a hostile or
delay
determining whether the
was un-
manner,
anything
or that
but “an
coercive
reasonable. ...
atmosphere
cordiality” had existed dur-
Webster,
Webster,
supra at 301. In
the
ing
interrogations. Excluding
poly-
been
approximately
defendant had
held for
police
chargeable
graph testing, the
were
confession,
four
making
hours before
a
interroga-
only three
four hours of
with
and,
“totality
after a
of the circumstances”
during
period,
tion time
the 20 hour
with
review, this Court ruled that
there had
being given
12
the defendant
about
hours’
delay
having
been no unreasonable
reviewing
rest. After
these circumstances
brought
defendant
before a
of the
Justice
detention,
surrounding
say
we cannot
Peace.
Superior
that the
Court erred as matter
recently,
More
in Fullman v.
Del.
finding
the delay
of law
reasonable.
Supr.,
(1978),
45,
55,
(1932);
and
John
77
158
trate in the Justice of
Peace
53 S.Ct.
L.Ed.
1019,
Zerbst,
458,
to
son v.
58
was ordered committed
a correctional
304 U.S.
S.Ct.
facility
(1938);
prior
issuing
to
second state-
and Brewer v. Wil
82
his
L.Ed. 1461
ment,
adversary
liams,
387,
1232,
pro-
430
51
we assume
U.S.
97 S.Ct.
magis-
began
Illi
(1977);
cess
when he went before
Escobedo v.
424
L.Ed.2d
Cf.
Williams, supra 97
v.
nois,
See Brewer
478,
1758,
trate.
12
378
84 S.Ct.
U.S.
judicial
S.Ct. at 1239. Since the adversarial
(1964).
applies
977
principle
L.Ed.2d
This
process certainly
underway, defendant
was
proceedings
whether
are commenced
at
time
legal
to
assistance
entitled
charge, preliminary hear
way of a formal
confession.
he made his second
information,
indictment,
arraign
or
ing,
Id. The
Supreme
explained
ment.
Court
attorney before
right to an
Defendant’s
stage
at
initial
criminal
that it is
this
being
questioned
demonstrated
further
justice process,
government has
when the
trial,
testimony at
by Detective Chaffinch’s
on
particular
focused its efforts
a
defend
violating the
candidly admitted
where he
prosecutorial
forces have be
ant and
commitment
Court's
Justice of the Peace
gun
him,
operate against
to
that the assist
at
defendant
by continuing
order
to detain
imperative. Kirby
v.
ance of counsel is
nine hours
police troop
an additional
for
Illinois, supra
at 1023. “heavy” one and this Court’s decision Flamer v. be a state’s burden to (1984), presumptions Del.Supr., indulge 490 114 in all reasonable will Miranda, su ap finding waiver. against we assumed that the defendant’s initial Brewer, supra 1628; pearance in the Justice of the pra Peace S.Ct. Janis, adversary qualified 1241, 1242, and Brookhart the initiation of S.Ct. at case, process. Dep Similarly, since 1246 16 L.Ed.2d 384 U.S. S.Ct. arrested, appeared magis- uty (1966).12 before a trial, Generally opportunity have is for the court determine the court did not trial Zerbst, ruling. supra Johnson there has been a waiver but because make such whether Sixth Amendment issue was not raised at S.Ct. at 1023.
591 Ohio, U.S., supra; McLeod v. reading Massiah v. Our sug- waiver standards supra. gests (1) the State must show: comprehended
the defendant the Indeed, nature of according Supreme right (2) forfeiting; which he was analyses Court’s in Fifth Amendment by defendant either his cases, own words or con- requested once the accused has duct, indicated an presence during affirmative desire to re- interrogations, of counsel linquish (3) rights; these interrogations and that he did so such must cease until coun voluntarily. present sel is or until the accused himself
has initiated further communication or con
Edwards v. Ari
A careful
police.
review
State’s
versation
with
zona,
477,
1880, 1885,
brief and the
451
record below has failed to
U.S.
101 S.Ct.
68
Miranda,
see also
(1981);
su
convince this Court that
L.Ed.2d 378
State has met
pra
proof.
its burden of
The record
record, Del.Supr., 552, we find that the State satis- 492 A.2d 563-565 cannot heavy overcoming (1985). of fied its No matter how the burden evidence was against presumption by jury, finding waiver. guilt viewed of was felony mandated on the murder counts. We, therefore, taped rule that the second For these reasons hold we that the admis- improperly ad- confession of defendant was harmless, sion of the second statement was mitted in violation of defendant’s Sixth beyond doubt, felony reasonable However, right to counsel. Amendment murder convictions. The intentional mur- our in this matter does not man- decision hereby der convictions are reversed. of complete date reversal under facts Despite the fact the defend- this ease. erroneously ant’s second confession B. evidence, admitted into we conclude that contends the trial court erred Defendant beyond a error was harmless reason- evidence, admitting in into over defendant’s felony able doubt as to the murder convic- objection, autopsy photographs nine Wainwright, v. tions. See Milton 407 U.S. victims, photographs and two of the victims (1972) 1 33 L.Ed.2d It is taken at the scene of the homicide. (where applied the harmless error rule was 403 defendant’s contention that Rule of petitioner’s Amend- to a violation of Sixth requires the Delaware Rules of Evidence see also United right counsel); ment photographs.16 exclusion of these Defend- Redman, rel. v. States ex Ahmad pho- prejudicial ant claims the effect of the (D.Del.1984) (where the harm- F.Supp. 802 value, tographs probative outweighed their applied error rule to a violation of less and, presented, light in of other evidence rights petitioner’s Fifth Amendment under merely As such evidence was cumulative.
Miranda).
State,
Bailey
recently
said in
this Court
However,
say
error
we cannot
(1984): “The
Del.Supr.,
490 A.2d
was harmless as
the two intentional
in
Judge has
admit-
Trial
broad discretion
murder convictions.
of
ting
rejecting photographic evidence
or
admission,
argues
By his own
defendant
murders.”
the victims and scenes of
nothing
statement added
second
first state-
which
inconsistent with his
photographs
None
ment,
had
except the fact that he
stabbed
pic
color,
probative
of these
but the
value
Smith.
Mrs.
taken at the scene
tures of the victims
circumstances,
they are relevant
substantiate
we
clear and
all the
Under
autopsy photo
robbery
state
motive.
confidently state that the second
can
multiple
from
wounds
jury’s guilty
graphs illustrate
did not contribute to the
ment
knives,
including “defense
robbery.
two murders
two different
verdict as to
Since
wounds,
are relevant
type”
and these
place during
commission of the
took
participation of more
intent and the
robbery (in
jury decided that
show
which the
of
the commission
than one assailant
participated),
had
the elements
we
these circumstances
murders. Under
clearly established.
murder are
into evidence
State, Del.Supr.,
say
cannot
admission
A.2d
Martin v.
of discre
an abuse
photographs was
(1981);
Del.Supr., 416
these
Hooks
judge.
the trial
also Whalen v.
tion
189, 197
relevant,
may
Although
evidence
be excluded
to the Sussex
committed
and was ordered
However,
substantially outweighed
facility.
probative
Detec-
County
value
if its
Correctional
ignored
danger
prejudice,
order
this commitment
confusion
Chaffinch
unfair
tive
troop
police
for an
Deputy
misleading
jury,
at the
and detained
or
consid-
the issues
eight
the confession
hours before
delay,
additional
of time or need-
undue
waste
erations of
finally elicited.
question was
presentation of cumulative evidence.
less
provides:
D.R.E. 403
Deputy also contends that
the trial
five.
made no showing to the con-
Moreover,
court abused its
in requiring
trary.
discretion
him
appeal, Deputy
on this
to show in
testimony
advance that the
has
prejudice
not demonstrated
certain
proposed
officers he
to call as
from
resulted
the actions of the trial court.
State, Del.Supr.,
defense witnesses would
be
cumulative.
Johnson v.
him to reveal entire defense calling of his first no witness. There is Deputy contends that there was insuffi- merit in these contentions. support cient evidence to his convictions of degree, in robbery the first 11 DelC. permits D.R.E. 408 trial judge the to 832(a)18 felony two counts of murder § exclude cumulative evidence. D.R.E. 403 (murder degree in robbery the first with (footnote 16, supra). underlying felony), 11 Del.C. police sought Deputy officers to call 636(a)(2).19 § during had all testified the State’s case-in- Deputy argues that the record contains All subject chief. had been to cross-exami- theft, no evidence of a necessary element Therefore, probable nation. it seemed degree robbery both offense of first testimony their as defense witnesses would felony the offense of murder. We merely be cumulative. In the exercise of disagree. discretion, the judge trial ruled he testimony, would exclude such absent ample The record contains evi indication that would be not cumulative. Deputy dence theft. having of admitted Deputy showing. made no such At the accompaniedFlamer to the Smith residence case, close of the defense the trial court purpose obtaining money for the of from gave the defendant opportunity another addition, elderly couple. Dep In when show that testimony police offi- arrested, uty police him found in cers would not be cumulative. Defense possession Byard Smith’s wallet and counsel declined.17 watch.
We find no abuse of discretion in here Deputy also claims that there is no evi- requiring the offer proof. showing There was dence murders occurred testimony likelihood that the in committing was cumula- the “course of theft.” 18. 11 DelC. § ing, were cross-examined. ing degree” as follows: the crime: flight who is degree weapon; or use of a in the second of commission of the 11 DelC. Presumably Harrington rebuttal, (a) (1) (3) Is armed with and uses or threatens the (2) officers A Causes Displays therefrom, [******] trial court when person not dangerous § 831 the State called three of the four 832(a) provides: Deputy sought after physical injury Police degree what is participant defines commits the crime of he or another guilty permitted making instrument. Chief. In appears crime "robbery when, robbery a sufficient to call. Deputy or of to be a addition, participant in the in the course any person in the first immediate crime; Again, to recall robbery second deadly show- dur- all 19.11 DelC. theft, A degree commission of force thereof taking another felony or immediate (a) the commission or degree when: lessly causes the death of another (2) Compel (1) Prevent or (2) person engage in other conduct A he uses or In the course person [******] * when, immediately after the person upon is 636(a)(2) provides: of the theft. guilty * the owner of the another in the course of property guilty threatens overcome deliver attempted * flight robbery of murder person and in furtherance of or to the retention * up therefrom, resistance to the commission taking; with intent to: immediate use in the second * property property committing aids in the first he reck- * or person of a or or claim, Deputy 119 unrecorded side bar confer- support of this contends contains In disputes significance contains no evidence that he The State that the record ences. commit the theft figure, noting intended to and Flamer of this that: There no merit in murder. prior to the (1) Forty-three place conferences took this contention. attorney. between and his (2) requested 16 Deputy’s counsel con- support mur order accompanying ferences without re- conviction, require the law does der quest be that such conferences recorded. necessarily precede the mur theft that the Nonetheless, judge sponte the trial sua enough that murder facilitate der. It is requested that one of these conversa- Del. the theft. Winborne (1982), tions be recorded. where we Supr., 455 A.2d question and held: requested (3) judge considered 44 confer- trial *13 these, were recorded at robbery ences. Of two person guilty of when “in A is theft, request; only five involved committing he Court’s a uses the course of scheduling person matters. with the upon another ... force (1) resist- prevent to or overcome (4) intent bar con- requested five side State taking property ferences; of or to the bailiff, ance to one. immediately thereof after the retention that of time, request At no did 831(1). While the taking.” 11 Del.C. § recorded. these conferences be committing “in course of phrase, object to the to Deputy’s failure theft,” requires connection be- “a casual to reporter is fatal Ami- of a court absence of or threat force and the tween use noted in As we cus contention. Curiae’s with theft,” Code Delaware Criminal primary re Flamer, has counsel “Defense (1973), 831 at Commentary 258 § complete to that a sponsibility seeing it for require not that the provision code does conferences, record, is including bar side contemporaneous application of force be Flamer v. appellate review.” made appropriation prop- with the actual v. Rosen- supra at 131. See State erty. It sufficient to facilitate is N.W.2d Wis.Supr., 93 286 feld, Wis.2d taking or the retention commission of (1980). 596 appro- property been after has Moreover, has Amicus Curiae priated. Deputy as a prejudice to to failed show D. confer side bar unrecorded result of the case, in this At time of the trial Union of ences. The American Civil Liberties recording such question of Delaware, (hereinafter in “Amicus Curi- Delaware Inc. within the dis rested ae”), Curiae, Amicus side bar discussions in a brief filed as Thus, where judge.20 of the trial record from the cretion contends that the combined there timely object, to failed hearing subsequent the defendant suppression and the find reversible to upon which is no basis inadequate for review because it trial is The duties as the report volved.” ther form such other the trial may side bar conferences The current 10 DelC. evidentiary prescribe. all Superior [******] judge Whalen evidence, of the Court § determines, 525 rule in Delaware Court nor substantive duties provides, opinions State, Del.Supr., must may require Reporters shall be ... be and other in advance, recorded, Superior pertinent issues are in- requires that nei- matters "unless part: per- that had § cording amount reporting, prejudice. ences F.2d 397 862, 753(b)(1). Despite in contrast, even in death open reversible to of (1980), the failure "all court” under the federal Stephens rev’d on proceedings 77 error, penalty L.Ed.2d mandatory. report side bar other mandatory absent a Zant, in grounds, 235 cases criminal statute, 5th (1983). showing nature 28 does not Cir., 462 U.S. confer- the re- U.S.C. cases 631 error, absent a showing prejudice. (c) “Recklessly”. person acts reck- —A State, supra 131; Flamer v. lessly respect State v. see with to an element of an Bolling, W.Va.Supr., 162 W.Va. offense is aware of when and con- (1978) (showing prejudice disregards S.E.2d re- sciously a substantial and un- quired reporting proceed- even where justifiable of all risk the element exists case, ings mandatory). In this Amicus from his will result conduct. The risk presently Curiae concedes that “there is such degree must be of nature and nothing suggest anything improper disregard gross thereof constitutes a de- during did occur the 119 unrecorded side viation from standard of conduct or off the record As bar discussions.” no person reasonable would observe in the shown, harm the defendant has no been situation. upon exists
basis
which to find error.
231(c).
11 Del.C. §
While the defendant concedes that
E.
charge
may
offenses,
State
on both
he ar-
Both
defendant and Amicus Curiae gues
on
that convictions
both offenses can-
argue that it constitutes reversible error to
stand as
violation of 11 Del.C.
have convicted the
on four
206(a)(3),
prohibits convicting a
degree
counts murder
the first
when person of
than one
more
offense where
were,
fact,
only
there
two victims.
“[ijnconsistent findings
required
of fact are
charged
The defendant was
to establish the
and convict-
commission of the of-
*14
argues
fenses.”
ed on two counts of
murder
The defendant
that he
intentional
The Delaware
victed
And, the defendant was charged and con-
under Del.C.
defines
der 11 Del.C.
tentionally
that
an offense when:
conscious
(a) “Intentionally”.
first
(a)
first
therefrom,
(a)
sion
ed.)
death
(1) He
(1) If the element
(2) In the course of
statute defines
the commission or
A
another
A
11
on
nature
[*]
degree
degree
of a
“intentionally
of another
conduct or a result
person
person
two counts of
intentionally causes
object
with
[*]
felony
or to cause
person.
when:
when:
he
§
Code,
§
636(a)(2),
636(a)(1),
respect
guilty
guilty
to
person. (Emphasis
recklessly
#
“recklessly,”
engage
—A
11 Del.C. §
or immediate
as follows:
involves
attempted
(Emphasis
felony
of
of murder
that
to an element of
[*]
person
thereof,
which
murder
in furtherance
in conduct of
result.
causes the
murder un-
the nature
[*]
the
provides:
provides:
231(a)(1)
in
commis-
acts
it is his
added.)
in
in the
flight
death
perti-
add-
[*]
in-
State, Del.Supr.,
ny
There, we stated:
victed of either intentional murder or felo-
er
respect
gues,
could not have acted both
part:
The evidence
include a
We considered this
murder theories.
There is no
a
defendant under
degree
and, ultimately,
murder,
When a statute
ment of an
recklessness
ly, knowingly or
intentionally
negligence
element of
established
also is
Del.C. §
“recklessly”
the two
to
murder
both
but
finding of recklessness under
established
charges
inconsistency in charging
acted
suffices to establish an ele-
offense, the element also is
if a
not both.
victims.
presented supported
an
or in the
suffices
at the same time with
which states
he could have been con-
597
(i.e.,
existence
an
suggested
of
element
his state
permissive
inference.
mind)
proof
Therefore,
from
surrounding
cir
he has not demonstrated a viola-
cumstances,
right
instruction relieved the
tion of
process
to due
under the
proving every
State of its
burden
ele Fourteenth Amendment.
beyond
ment of the offense
a reasonable
Although
Montana,
Sandstrom v.
su-
Wilbur,
doubt.
Mullaney
v.
U.S. pra,
presumption,
involved a conclusive
684,
1881,
(1975);
95 S.Ct.
In re
397 U.S.
90 S.Ct.
support
argument.
Sandstrom,
of his
(1970). Further,
cluded,
solely
accomplice
penalty
based
on
grossly
liabil-
...
death
is not a
[T]he
ity theory,
disproportionate
punish-
guilty
defendant was
excessive
guilty
on all four
ment for a defendant
found
murder counts. The defendant
murder,
actually
contends that
who
killed his
Supreme
United States
Florida,
present
opinion
victim under the circumstances
in Enmund
Court’s
here.
note that such a conclusion
We
U.S.
hand, was an aider and abettor to the
underlying
as
felo-
homicide as well
the
D.
ny.
contends, for
defendant also
The
State, supra
Hall v.
at 874.
appeal,
jury
time in this
first
Thus, we conclude that Enmund
permitted to consider
should not have been
preclude
imposition
does
circumstances,
statutory aggravating
penalty
death
in
case where
dur
both that the murder was committed
guilty only vicariously as a
was not “found
ing
robbery,
11 Del.C.
the commission of
Whalen,
felony
murderer.”
(e)(2),
mur
4209(e)(l)(j)and
and that the
§
State, Del.Supr., 496
Riley
563. See
pecuniary gain.
der
for
11 Del.C.
A.2d 997
4209(e)(l)(o).
language
of 11 Del.C.
§
4209(e)(2)
duplica-
clearly anticipates that
§
B.
statutory aggravating
tive
circumstances
The defendant also contends
it
That sec
may
jury.
be considered
plain
permit
imposition
error to
provides:
tion
penalty
the death
when the State did not
has
any
case where the
prove
offer
the existence of the
evidence
first
in the
been convicted of murder
statutory aggravating
at the
circumstances
provision of
degree
in
violation
However,
penalty hearing.
this Court has
title,
636(a)(2)—(7) this
that convic-
“[ejlose scrutiny
of our
held Flamer that
existence of
tion
shall establish
prohib
language
no
statute discloses
circumstance
statutory aggravating
jury
consid
sentencing
its the
below from
appropriate,
or
where
jury,
judge
penalty phase
ering in the
evidence which
provision
so instructed. This
shall be
phase.”
already
liability
heard
judge
preclude
jury,
shall not
Thus,
Flamer,
jury
pra at 2941.
862,
Stephens,
Zant v.
462 U.S.
103 S.Ct.
2733, 2743-44,
(1983) (cita-
the of commission PART. necessarily appropriate. There was is also support the jury’s sufficient evidence (concurring part in McNEILLY, Justice the conclusions that defendant’s conduct dissenting part.) and in deaths, resulted in two 11 Del.C. guilty Stanley Deputy was found Andre 4209(e)(l)(k), and that the were murders § of by jury of two counts Superior a pecuniary gain. 11 committed for Del.C. Degree, First two intentional Murder in the 4209(e)(l)(o). § Murder, of Rob- Felony one count counts of count of Degree in and one bery the First inquiries posed additional are Two Weapon During the Deadly a Possession of a subparagraph 4209(g)(2). under of section sen- Felony. Deputy was Commission of a Initially, given totali we conclude that “the murder of the four tenced to death each on aggravation ty mitiga of evidence in and the year terms on thirty and convictions upon particular tion which the cir bears The ma- convictions. robbery weapon and and cumstances or details of the offense taped evening the late jority has ruled that of propensities the character and the of improperly of was confession the defendant imposed by fender” the sentence death of of his in admitted into evidence violation arbitrarily jury capri neither nor was by the Sixth right guaranteed to counsel as ciously imposed. See Del.C. a conse- As and Fourteenth Amendments. 4209(g)(2)a. § intention- quence majority reversed the appropriate pro have made the We the felo- al but affirmed murder convictions find, after portionality review and careful underlying ny and the murder convictions consideration, imposition Degree and in the First Robbery of crimes penalty Deputy dispro death on During Weapon Deadly Possession of portionate penalty recommended or Felony and also affirmed Commission of a degree imposed in other first murder those in thereon. I concur imposed the sentences arisen under our statute cases that have the 10 disagree that but affirmances statutory aggravating in cir improperly which a admitted p.m. statement was jury. evidence, consequently cumstance was found into Riley 4209(g)(2)a. should be Del.C. convictions intentional murder 997, 1026 (1985); Del.Supr., Flam 496 A.2d reversed.
er, 490 139-40. A.2d at of appeal raised There is no issue during the police
Deputy,
in Del-
tactics
like the other defendants
abusive
I am
although
custody
interrogation
aware who have been sentenced to
totality
part
as
of
and consider
penalty
death
under 11
was mindful
Del.C. §
sleep-
of
Deputy’s claim
of
guilty
unprovoked,
found
of “an
circumstances
cold-blood-
cell,
being threatened
ing in a cold
of
helpless [persons]
ed
com-
murder of [two]
head,
point” in his
police with a “hollow
upon
lacking
ability
victims
mitted
cigarettes being
deprived
solely
pecuniary
and of
defend themselves and
of the absence
liquor.
I am also mindful
gain_”24
Riley, 496 A.2d
robbery
during
in the other
Riley,
than
defendant in Whal-
rather
24. As we noted
en,
guilty
committing
supra,
penalty
found
cases.
death
during
rape
of a
murder
the commission
violent
proof by
nine
the State of an actual verbal
where was detained
hours. There
little,
any,
relinquishment by
Dep-
if
written
communicationwith
right
uty by
investigating
after his
be-
officer or
oth-
appearance
counsel
committing
during
period
fore the
Peace.
officer
the nine-hour
Justice of the
er
holding
speak
than
But sometimes actions
louder
he was confined to the
cell at
charge
policebarracks. The detective
words.
*21
investigation
Deputy
inform
that he
the
did
Although
Judge specifically
Trial
the
going to
and that
he
Seaford
when
knowingly
Deputy
ruled that
and voluntar-
Deputy to
the
returned he wanted
tell him
relinquished
right
Fifth
ily
his
Amendment
returning
But
to
from
subsequent
truth.
8,
gave
February
to counsel when he
his
Seaford,
apparently
the detective
was satis-
p.m.,
at 10:00
not
statement
he did
interrogate Deputy
not to
further and
fied
explore
impact
the
of the
Four-
Sixth and
night
police troop
the
for home and the
left
right of
to
teenth Amendments
any
Deputy. Shortly
contact with
without
present during any
have counsel
further
home,
after the detective left for
a traffic
interrogation
appearance
his
after
initial
Deputy
way
started
on his
to the
officer
ques-
the
the
before
Justice of
Peace. The
County
Institute.
In
Sussex
Correctional
during
sup-
tion was not raised either
the
meantime,
changed
the
the detective
his
pression hearing or at trial.
inBut
Flam-
transporting
mind and directed the
officer
er,
assumed,
here,
I do
we
the same
police
Deputy
to return
to the
station.
agreeing
assumption,
without
with the
that
any
the
way
Sixth and Fourteenth Amendments
I do not
condone
action of
right
present
trig-
failing
Dep-
transport
have counsel
were
the State Police in
gered by
facility
appearance
uty
defendant’s initial
be-
to the correctional
without de-
Peace,
committing
fore the
lay
arraignment
Justice
after his
before the Jus-
of
impartial
Unfortunately,
delay
an
State Court Official.
tice of
Peace.
police procedure
result of a
was the
Pursuant
to the mandate
of
of Justice
routine,
at least
Del-
had become
lower
2(b),
the Peace
Deputy
Criminal Rule
aware, by
reason of the Justices of
appearance
advised at his initial
before
general
having
as a
rule
no one
Peace
committing
Peace,
neutral
Justice of
cus-
to relieve the State Police of
available
judicial officer,
against
of the complaint
pur-
for the
tody of committed defendants
him,
counsel,
right
of his
to retain
transporting
to a
such defendants
pose
right
hearing.
to have a preliminary
Although
police
facility.
correctional
Deputy also was advised under the Rule
County
transport Deputy to the Sussex
did
required
that
was not
a state-
make
hence, did not vio-
facility and
Correctional
ment,
any
may
by
statement made
him
Peace,
of the Justice
late the Order
against
be used
him and
he would be
after ar-
of a defendant
transportation
allowed
rea-
the Justice
the Peace a
facility, should
to a correctional
raignment,
opportunity
sonable time and
to consult
po-
delay. This would avoid
without
occur
advised,
Having
counsel.
so
been
viola-
Amendment
Fifth and Sixth
tential
expressed
no desire to
exercise
seems
frequency of occurrence
whose
tions
explained
thereup-
options
to him and was
left
when a defendant is
increase
custody
on ordered
to the
committed
custody
prolonged period of
for a
County
Sussex
Correctional
Institution
time.
charges
non-
since
murder
constituted
alleged
Amendment viola-
Flamer, Deputy
to the
Sixth
As was
As
bailable offenses.
since
tion,
no violation occurred
I conclude
turned
Police for
over
State
considering
totality
of circumstances
County
transmittal
to the Sussex
Correc-
right
Amendment
delayed Deputy waived his Sixth
facility.
tional
State Police
case
recent
of U.S.
facility
taking
to counsel.
Deputy to the corrections
Cir.,
(1984),
Karr,
F.2d
9th
Deputy to the
Station
and returned
Police
.
ing the difference between the Fifth
Amendment
intelligent
randa and the
an defendant of the
indicted sel under
Court stated:
The issue is whether he
is the same:
untary,
United States v.
them.
er v.
liminary hearing.” relinquishment
lege.
ment attached when he was indicted.
and Sixth Amendment
482,
(1981) (Fifth Amendment);
Amendment
Brew
Rhode
S.Ct.
ment, information, arraignment,
against an
Fifth
explicit request by the defendant. Amendment
n.
formal
2296,
Gouveia,
297
The standard for waiver of the Fifth
Karr’s
The Sixth Amendment
Miranda
analytically
101
(1980).
1232, 1242,
or not. She wasn’t
Q. reasonably You’re sure she was Probably
dead. she was dead.
A. Yeah.
Q. question And there is no about the *23 Everything you’ve
truth. told us is defi- nitely the truth? WILSON, Petitioner, S. David Everything truth. A. is the Q. you your explained O.K. Have been
Miranda rights? right Your to be silent Delaware, Respondent. STATE your right Attorney to an and all Delaware, Superior that? County. New Castle A. Yes. Jan. Submitted: Q. you many How times have been told 1, 1985. Decided: Oct. you apprehended? that since have been Two or A. three.
Q. you Have if you been asked want an Attorney?
see Yes.
A.
Q. you opportunity Have to talk had one? Attorney you
to an if wanted to see Yes.
A. old Deputy, thirty year
I also look at
man, stranger rigors who no felon, enforcement,
law a thrice convicted murder
and under arrest for unrelated by him New Castle
allegedly committed clearly supports a
County. The evidence Had
conclusion street wise. Fifth, his Sixth
he wished invoke rights, Fourteenth Amendment time consistently each declined do from rights explained to him were
those the clear apprehension, moment