*1 ages a revocation of ven- shall work license; dor’s and all sales afterwards Defendant, HUGHES, D. Robert made him shall be deemed taken Appellant, to be without license.” v. re-
Significantly, that Statute also Plaintiff, Delaware, Appellee. pealed or before enactment of 1953 STATE of Del.C., 1953, 101. Code. See 1 § No. 631980. liability It is clear to us from civil have enacted provisions which been Supreme Court of Delaware. several General Assemblies have been Sept. 1981. aware a civil cause of action can Submitted be pertinent provi created for violation of the Decided 1981. Nov. Beverage sions of Alcoholic Control Act; (to enactment on a limited basis 715(a)(6) of the 1953 Code and to
§ § Code) strongly of the 1935 suggests Revised remedy to an intention to limit such a those Then, specific Sections. the elimination of even those remedies for violations of the implies Act an intention the criminal penalties and the administrative remedies Specifically,
were to be intended exclusive. we conclude that and 713 not do §§ legislative
create a standard care that patron be used a basis recovery against liquor license. Our con clusion is the usual con consistent with given
struction 48A such statutes. C.J.S., supra 434a. at § Taylor Ruiz, Del.Super., 394 A.2d Superior held that Court (and, perhaps, 713) may be the basis § § negligence against action tavern brought by person owner who is third injured by patron. an intoxicated That persuasive
case is more on its facts because plaintiff patron was not an intoxicated an third The Trial person. but innocent Court, however, not analyze did statuto legislative ry history 711 nor trace § relating private causes action acts We Liquor under the Control Act. herein, and, stated done so reasons Superior with agree we do Court’s construction of 711.9 §
[*] [*] [*] Affirmed. action, 711 or Tay § a civil cause of under not have We note four months before that about operator decided, Supe against Judge based tavern § lor was a different beverages different (in unreported opinion, to a of alcoholic rior Rankins service patron Court an Gawronski, 1976) at the time. who was intoxicated held No. C. A. patron injured that a in a tavern does who
561 *3 Morris, Nichols,
Randy J. Holland Tunnell, Georgetown, Arsht & and Samuel C., (argued), Washington, Dash D. for de- fendant, appellant. III, Oberly,
Charles M. Asst. State Prose- (argued), Wilmington, cutor plaintiff, appellee. HERRMANN, J., DUFFY,
Before C. McNEILLY, QUILLEN HORSEY, J.
DUFFY, Justice: This appeal by is an Robert D. *4 (defendant) who by was sentenced the Su- perior Court after a had found him guilty Degree, of in Murder the First 636(a)(1).1 Del.C. §
I
The case is based on circumstan- and, briefs, respective tial in evidence their parties in examined detail evidence and the manner in which it was by argument jury. used counsel in to the reason, For that we state the facts at more length than usual. 31, 1976, August
About 6:35 a. m. on Hughes telephone made a call to the Mil- said, effect, Department ford Police wife, Hughes, that he had found his Serita lying in the driveway near the rear of their policeman house and he or an that needed a Sergeant Ingram, ambulance. the first call, police respond Milford officer to by Hughes was led Mrs. defendant to who by rope A was was covered a blanket. pulled tightly neck around her and there body. was blood on her was dead. She Assistant Medical The Examiner testified that the victim had received two head, principal blows to the one of which bleeding, had caused substantial external ligature but that the cause of death was strangulation.2 The Chief State Medical Examiner approximate fixed the time of intentionally He causes the death of anoth- person.”
er causing by Ligature strangulation asphyxia provides, part: 2. is 1. The Statute rope the use of a or similar cord. “(a) person guilty A of murder the first degree when: August Experts found in the testi- p. death at about m. on 30 or elsewhere area. 11:30 shortly likely have thereafter. fied the assailant would that clothing. his hands and had blood on he
Hughes testify given did not but had of occurred an account what had on the apparently The which was used rope night August they to30 when neck. strangle Hughes was her Mrs. around morning August His arrived that At victim's father testified report substantially was as follows: Mrs. rope to be that rope appeared that the same nurse, Hughes, who had worked the was grandson’s wagon on to his attached p. p. August m. to 11:00 m. shift on 3:00 19, 1976, August when he tied a hand- Hospital. at the Milford Memorial After rope. police photograph hold in A bed, his two children to putting small home, which was the rear of light had turned the rear house for morning August shows taken on the p. wife and then went to bed about 10:00 m. rope. pho- The same wagon without m., awakened 6:00 a. discovered He about master tograph that the first-floor shows bed, wife that his was not in searched open morning. window was bedroom her, driveway. found in the lying her handbag next to The was found victim’s placed He did not touch her but he a blan- human blood body her with unidentified body police. over her and called the ket bag ojien and some and dirt on it. later amended this account it. ground its were on the beside contents that he saying had taken the children to bag, not in and it was Her wallet was p. nearby market at about 10:00 m. and never The evidence indicates found. m.; p. he was in bed 10:30 he also *5 Hughes generally her credit Serita carried pulse said that he had checked wife’s it indicate cards in her wallet but does not placing before the blanket over her. or her had carried cards whether she Hughes also that an police told the he had day of the wallet on the murder. telephone unlisted number because his wife on rusty A tire was found somewhat iron previ- had received several obscene calls the feet victim’s driveway several from the spring, may ous and she been that have not body blood was but tests indicated that cash or in the of carrying a check amount he that on it. The victim’s father testified fifty dollars in wallet. her appearing tire given a similar have night Hughes Mrs. August On the of before. years iron to defendant some Hospital her had driven car from the about iron opinion expert, of a the tire State p. 11:25 m. no evidence she There is head to inflict the victim’s not used parking was followed from the lot. expert noted although a defense laceration Hospital from the resi- drive that, used it been opinion, may in his detective, dence, as requires measured did not cause to the head blow which strike about nine minutes. bleeding. external investigation The immediate of the crime house, found police officers Inside the analysis subsequent scene and of certain cigarette butts and full of ashtrays two produced following items evi- seized living in the pillow bedroom couch largeA of blood was on and dence: amount order- room, and very otherwise clean in an and determined to body about the victim’s officers testified ly house. Several “O”, is the same as the Type be did not bed and victim’s defendant’s blood, drops blood. few also victim’s A slept in. appear have been to “O”, to be were discovered Type determined Police and after the Milford Some time driveway pebbles body and on between arrived Police had the Delaware State step pebbles the rear the house. Some home, investi- and while their disarray, consequence as a possibly were in continued, was taken gation defendant droplets struggle. red were Several Troop questioning. Police step on a rear and later determined State found Melvin, accompa- Sergeant who not Police kind. Blood was to be blood some Troop questioned nied defendant “approximately 3 and Additionally, $50.” some there, testified, effect, him as follows. pieces paper, one of which had handwrit- Hughes was not suspect considered to be a it, figures ten financial on were found in gave Sergeant until he what Melvin con- yellow the bedroom. A T-shirt with a “You sidered to be “not normal” ques- answers to logo Can Do It” on front was found tions, (1) such as: when asked about neatly laundry top folded in a basket or on possibility might that blood be found in his ironing of an board in the master bedroom. house, clothing hands, on his or on his de- that, Police being officers testified after replied might fendant that it be because his arrest, told that he was under defendant wife had heavy had a menstrual flow turned to his father and said that it had recently or played because he had with a been the best summer he Serita ever heat; neighbor’s dog (2) which was in when police sprayed had. Then the a chemical on asked to thing name the best that had ever defendant’s hands and told him that it him, happened to defendant said it was recently would show whether he had had accomplishing goal becoming a school blood on responded his hands. Defendant teacher, and when asked to relate the worst it prove anything that would not and that if happening, replied defendant it was blood, may the test detected it have come getting almost not through college; (3) having from intercourse with his wife two when why asked for a reason blood was on nights menstruating. before while she was step, the back explained neigh- he that a Hughes was then taken the kitchen of into girl bor’s little had cut her toe and had sprayed his house where a chemical come to the asking back door for a Band- anything the wall. if he had When asked Aid; (4) when asked whether he would “Well, say, replied, say I can one suspect consider himself a if he were a thing. I didn’t scrub the walls.” officer, yes. defendant said 8, 1976, September days seven after On interview, During scrapings were tak- arrest, prossed the mur- the State nolle fingernails, en from defendant’s but tests charge der because there was sufficient conducted to possible pres- determine the support years evidence to it. But two ence of blood negative. were Defendant later, 4, 1978, was then three months on December falsely by Sergeant told Melvin *6 that a black light Hughes which was shone on was and re-arrested on his indicted the clothing presence indicated the of charge. blood. same again explained Defendant that blood Hughes provid- At neighbors of the may have neighbor’s dog come from the they ed some evidence. Most testified that which police was heat. He also told the anything had neither seen nor heard on the (a clothing wearing striped that the he was However, night neigh- of the murder. the shirt, polo sandals) slacks and was the same evidence, provide some of bors did bits of day that he had worn the before. At the evidence, supplemented principal which the interview, end of the defendant was told he or contra- and some of which corroborated suspect given was a and was Miranda warn- made defendant. dicted statements ings. But he was neither arrested nor de- A friend of the victim testified that Seri- tained. morning August ta had called her on the of morning, At about 2:30 a. m. the next problem 30 to talk menstrual she about a September Hughes was arrested and had and to tell friend that she was charged with the murder of his wife. going to call her doctor. A next-door house, warrant, searching pursuant to a neighbor dog often testified that her was arrest, police before the had found sev- Hughes around the house and that it eral of the victim’s and several of the de- dog possible that her was in heat about the bureau, fendant’s credit on cards a bedroom time of the murder. together with defendant’s which con- wallet tained, according gave A of testimony to the of Detec- teacher friend defendant’s Rimmer, search, September tive who had conducted the statement to the on aligned respective sides Experts appeared 1976 and at trial. stated that She conflicting substantially testimo- produced visited her Hughes and his two children had opinion experts were of the that ny. State p. m. on p. home from about 7:05 m. to 7:50 down and was later the victim had died face evening August Hughes. of compelling The most rolled over. Docksiders, wearing Bermuda shorts and a support theory of that reasons advanced in yellow logo T-shirt with the “You Can Do positioning of the appears to be that he and Hughes It” on it. told her that hand indicated that victim’s left arm and fifty-dollar wife had received a check from set degree rigor some mortis3 had parents spend for dinner on their Serita’s position. body lay in a face-down while the anniversary, day, which was the next rigor And, according experts, since holding that it. Serita was two and generally begins mortis between employed at a persons Two who were death, they opined that six hours after nearby August convenience market on death, had lain face body, victim’s after that, day, 1976 testified on that defendant being least two hours before down for at with his children had come to the store hand, defense the other rolled over. On p. neigh- or 10:20 m. about 10:15 Several the left experts position said lights bors testified that were not on in or theory was consistent with a arm and hand Hughes p. around the house about 11:00 m. or, her back victim had died on night. neighbor, and 11:15 P.M. that One alternatively, she was rolled over onto who had lived in the house defend- behind very short time after death. her back a ant, dog barking shortly heard his after livor mortis4 Expert testimony regarding midnight night on the the murder. theory because was consistent with either door, When went he to his rear he heard Medical Examiner testi- the Assistant State what he believed to be a man and woman begun on the fied that livor mortis had not arguing. talking, from the which came body of the victim’s but anterior side house, general According posterior direction of the started in the side. Examiner, livor stopped neighbor when the turned on the Assistant Medical State eight hours fixed six to light. prior outside to this inci- mortis becomes Sometime body appears so it that the after death and dent the witness had heard a car door shut. for that lain face down could not have neighbor Another who lived next period of time. a. said he had awakened about 6:30 person August m. on 31 to the sound of a expert A bloodstain testified sobbing. neighbor Another tes- crying and experiments that, on a series of based after talking tified that with defendant blanket with the bloodstained conducted murder, night August body, the blanket had covered the that his son had come home mentioned the victim be- probably placed over responded about 12:30 a. m. and defendant after forty minutes tween ten minutes *7 anything.” by saying, hope “I he didn’t see experiments over. But the she was rolled Finally, Hughes’ as to reaction to these to him that expert indicated of a defense circumstances, quite con- testimony placed the was over the may have been the blanket emo- after flicting, ranging up from “he showed no to six hours body time shock, to testimony and was corroborated descriptions tion” to of tears death. This Medical by Assistant some extent the distress. mortis, according mortis, to the Assistant State Rigor according 4. Livor to the Assistant State Examiner, gravita- Examiner, change postmortem there is a “is where is “a Medical tional portions Medical dependent settling changes the the blood in of of the that occurs because of chemical words, body. if the body. In other short of the muscles of the It starts in the you lying body back will proceeds larger dies is on its and when it and in the muscles muscles purple/reddish way up liver which is a sort of for see the the muscles stiffen and remain that por- posterior the the skin on discoloration of a certain amount of time.” tion.” that, Examiner who of said because the On at least two years occasions in recent nature the deep of laceration on the fore- permissible this Court has discussed the pooling head and the of blood in the head bounds of by prosecution comment the in caused the by ligature, the victim’s head State, summation arguments. Sexton to continued bleed after death. And she Del.Supr., A.2d the first noted the that head wound was still wet of these. There the Court said this: body when she saw the at 9:20 a. m. on improper every by pros- “Not remark a and, likewise, August on the blood the reversal, requires only ecutor but that gravel body next to appeared the wet. prejudicially affects substantial Finally, officer that a testified rights Super.Ct.Crim.R. of the accused. had been the blanket. Given corner touch have mixed with one of the State expert expert said that when of caused the he stated that arrived on the blanket was some by the formation of dew on that type testimony, if the of bloodstains damp moisture scene, dampness another and on an in an A.2d 701 seek 52(a); Although [******] justice, adversary Edwards v. (1974). the not prosecutor operates merely system, State, Del.Supr., convictions. duty with- is to blanket, the the blanket would had to have prosecuting attorney represents ‘A been outside hours sun- several before including all people, the defendant rise, which occurred about 6:35 a. m. on that being duty who was tried. It is his particular However, morning. evi- this presented see is the State’s case by expert dence was contradicted defense vigor, with and but it is earnestness opinion whose differed from the ex- justice duty equally his to see that be pert concerning explanation the latter’s of a fair by giving done defendant mixing moisture with the blood on blan- impartial trial.’ Bennett [3 ket, expert opined a defense who Del.Supr., 164 A.2d Storey 36] though that even dew probably formed that morning open, areas, grassy in it had requires prosecutor duty That same not ground formed around victim legally objectionable to refrain tac- from because the house trees reduced the prejudices arouse the of tics calculated to heat loss necessary for formation of dew. jury.” at 544. 397 A.2d And he further testified because the quoted, tacit if we also with Sexton quilt-like barrier, poor blanket is a thermal approval, following ABA express Stan- temperature its drop would not dew dards, the Prosecution and Defense Func- point temp- but would be influenced Draft, 1971): (Approved tions body, making erature of the the formation prosecutor. “1.1 The function of “remotely possible.” dew on it not even (a) prosecutor agen- is an The office
II government cy the executive branch of duty charged which is with the to see arguments We now consider defendant’s faithfully executed and support his contentions that laws are reversal required to maintain rule of prejudicial because errors enforced order proceeding and that new trial be should law. vigorously responds
ordered. The State (b) an is both adminis- arguments those and contends that advocate; justice and an trator after trial. convicted a fair per- in the must exercise sound discretion numerous First, Hughes says that were improper highly prejudicial statements to the A. to State right made jury to seek *8 formance of his functions. (c) [******] justice, The duty of the merely to convict. prosecutor is to a fair trial. Opening 5.5 statement.
567 prosecutor in his final summation prosecu- “The opening In his statement evi- should confine his remarks to repetition tor confined to a should not be intends to offer which he be- dence he at trial. He is presented the evidence good faith will be available and lieves explain all the expected and to allowed statement of the admissible and a brief appellants’ of the legitimate inferences unprofessional issues in the case. It is evidence. guilt that flow from that any to allude to evidence unless conduct 413, 245 N.J.Supr., 52 N.J. Mayberry, v. good and reasonable basis there is a faith 1043, (1968), cert. den. 393 U.S. A.2d 481 believing will be that such evidence 593 The L.Ed.2d S.Ct. tendered and admitted in evidence. nevertheless, prosecutor, must remember ****** adversary position within the unique 5.6 Presentation of evidence. obli- system. is fundamental that his ‘[I]t
[******] gation
is to
protect
the innocent
as well
guard the
guilty,
to
as to convict
(b)
unprofessional
It is
conduct for a
enforce
rights of the accused as well as to
prosecutor knowingly
purpose
and for the
Project
public.’ ABA
rights
of the
bringing
inadmissible matter
to the
Justice,
for Criminal
Standards
Standards
judge
attention of the
or
to offer
Prosecution Function
Relating to the
evidence,
objec-
legally
inadmissible
ask
Function,
Prosecution
The
the Defense
questions,
imper-
tionable
or make other
Function,
1.1,
(Ap-
Commentary at
arguments
§
in the
missible comments or
Draft, 1971) (hereinafter ABA
presence
judge
jury.
proved
of the
or
5.8
sonable inferences from evidence in the
record.
(a)
[******]
Argument
The
It is
prosecutor may argue
unprofessional
jury.
conduct for
all rea-
(c)
argu-
such,
not use
should
he is in
be done. As
justice shall
passions
ments calculated to inflame
definite sense
peculiar
very
prejudices
jury.
law,
aim of
the twofold
servant of the
[******]
which is that
guilt shall not
escape or
prosecute
may
He
innocence suffer.
5.9 Facts outside the record.
vigor
indeed, he
with earnestness
—
unprofessional
It
conduct for
But,
may
strike
do so.
while
should
prosecutor intentionally to refer to or ar-
blows,
liberty
to strike
he is not
hard
outside the
gue on the basis of facts
duty
much his
foul ones.
It is as
appeal,
record whether at trial or on
un-
improper methods calcu-
from
refrain
of common
less such facts are matters
wrongful
conviction
produce
lated to
ordinary hu-
public knowledge based on
every legitimate means to
as it is to use
which the
experience
man
or matters of
just one.’
judicial
bring about a
court
take
notice.”
expressed similar senti-
This Court has
and more recent case is Hooks
The second
State, Del.Supr., 3
ments in Bennett
Del.Supr., 416
A.2d
(1960):
Storey
164 A.2d
follows:
in which this Court wrote as
*9
said,
prosecuting attorney
‘A
As
represents
against
all
we have
the State’s case
people,
including
the defendant Hughes
entirely
is based
on circumstantial
pra,
process of
this
Amendment
at
ing opinion
criminal
ment as
aspect of a fair
the Due Process
bound.’
propriety of
see that
done
equally his duty
These
with
impartial trial.’
who was
regard
416 U.S.
earnestness and
40 L.Ed.2d
general
well as to the other
trial.
Donnelly
constitutional
giving defendant
being
is necessarily imprecise . . ..
of Justice
the content of
[637]
State’s case is
Closing argument
Clause
trial which is
comments extend to the
which the
tried.
at
to see that
[431]
DeChristoforo,
Douglas).
It is his
vigor,
line
at 440
the Fourteenth
94 S.Ct.
closing argu
aspects
drawing
States
implicit
justice
presented
but
fair
(dissent
duty
[1868]
‘[T]he
is ‘an
it is Hughes
are
su
be
in
’
from that evidence were
the victim and
summation and rebuttal
which the
duced
icant. That was
dence
evidence
ing
his wife died. Much of the evidence relat-
statements to the
blood
the effect
evidence.
“Do
worried about
to blood concerned
clothing,
on
connecting Hughes
probative
you
would have had blood on his
relating
prosecutors
Although
that whoever had killed Mrs.
believe that Mr.
person
evidence that
emphasized
police. With
State at
or
motive,
arguments
there was testimony to
clothing
made these remarks:
possibility of that
particularly signif-
Hughes’
with blood from
no time
in the State’s
Hughes
little
it mounted
nebulous
person
if any
intro-
night
evi-
Hughes’
blood
Mrs.
menstrual
Id. 416 U.S. at
[from
S.Ct.
(Justice
being on his hands
does it com-
Rehnquist’s
L.Ed.2d at 438
opin
flow]
Court).
Indeed,
said,
ion for
frequent
port
expert]
with
it is
what
...
[a
ly difficult
to ascertain
experts say,
whether courts
and even their own
whoever
speaking
are
fundamentally
errors so
strangled
surely
that woman
would have
unfair as to deny
proc
the defendant due
gotten
good
deal of blood on his hands.
ess or
merely
whether courts are
exercis
******
ing
supervisory power
their
to curtail
prosecutorial
But,
misconduct.
in either
trying
The
the defendant is
scenario that
event,
legal
the ethics of
profession
all,
First of
you
preposterous.
to sell
is
”
are in issue..
. .
(1) on his say put tried to we never blood on his hands. put hands. We did blood argu contends that in final blood on his He told us there would be ments to the State misstated the night he had hands because the before argued evidence and facts not in evidence only it not sex with his wife. He had to connect him with victim. blood from the result, sheets. He tells us says, his hands but on the is that the State’s sum unsworn, testimony. mation included false that. *10 may neigh- well have received ... from a
... tries to tell us [Defense counsel] proven we haven’t blood on his hands. dog bor’s that was heat.” proved We have blood on his hands Septem- on When defendant was arrested he is con- through his own mouth. When 1,1976, sprayed chemical on police ber the fronted, might he. have when is told he his kitchen wall and then his hands and on hands, say? blood on his what does he He pres- indicated the told him that both tests says, prove anything.’ ‘That doesn’t the Hughes responded ence blood. ****** by stating that “if there hand test Now, ... said we [defense counsel] having come from inter- may blood it any didn’t show blood on his hands. We nights his wife several earlier.” course with any didn’t show blood on his clothes. test stat- Hughes responded to the wall any his Didn’t show blood in house. “Well, thing. I ing, say I can one didn’t defendant tells us there be blood the walls.” scrub the house. The defendant tells us he had by Hughes were All of these statements blood on his hands because he had sex concerning pres- the speculative responses night with his wife the before.” hands, clothing his and ence of blood on the evi- clearly These remarks misstated consequence his house as a of events inside dence. The record does not show that preceding the murder. But the statements “proved through State blood on his hands (at least one of which had been obtained his own mouth.” meaningful proof of trickery), with little 31,1976, August Hughes On was taken to probative with no blood at time and Troop questioning. Police 3 for At State murder, ele- after the were proof of blood Troop when which had asked about blood rebuttal, during into fact the State’s vated house, step been found on the rear of his on his hands proved thus: “We have blood answered, Hughes according to the testimo- through mouth.” his own neighbor’s ny policeman, “that a State child, ..., girl a little had cut her toe ... Hughes, his cloth- Evidence as to blood on door, and she came to the back knocked on only was material if ing or inside his home the door and asked for a Band-Aid.” When placed Hughes after had been there Serita asked if there would be blood inside the on murdered. Evidence as to blood house, Hughes responded, “probably . . . clothing before the murder was ad- or his having because his wife was menstrual pur- background missible for or foundation problems bleeding very and that she was such poses. probative But value of badly period days prior for a to that at which it depends evidence on the time ” ... . When asked if there blood would be is, Hughes, that before or was connected to hands, Hughes replied prob- on his that “he And the difference after the murder. ably did and did have blood on his hands crucial. because he and his wife had had intercourse appeal, the State argument its in this In night before and he had had blood difference attempts to blur the ignores or clothing.” his hands and on the bed When jury) (as argument between it did in asked if there would be blood on his cloth- possibility of speculation about the Hughes’ ing, Hughes probably answered that “he after the murder person blood on his dog there was a would have . .. because person on his before presence of blood playing with that had ... had been said, latter is As we have the murder. problems dog . menstrual . . [and] connection the absence of a not material in petted up against rubbed him and he had ” made, the former is was never station, dog .... And at the finding blood af- probative proof of ruse, police, in an admitted told short, never the murder. ter on his cloth- light that a test showed blood clothing inor Hughes or his proved blood on ing. Hughes possibly, “that responded But, whether murder. very house after the what was indicated to be blood ... he context, presence proved of blood on him independently, or read the murderer.5 argument plain that he was highly prejudicial error. (2) *11 long,
The
total summation was
State’s
Hughes
argues
the
in
also
that
State
re-
covering
pages
some 146
in the trial tran-
impermissibly
many
buttal
labelled
of his
circumstances,
script. Under
we
“lies,”
these
pre-trial,
out-of-court statements
agree
prosecutors’
with the
that
the
expressions by
pros-
State
which amounted to
the
development
through
testimony
review of the evidence and the
ecution
of its
unsworn
personal
Hughes’ veracity.6
permissible
permit
of
belief about
hypotheses may
some
margin for error
is
that
not a basis for
argument
is
aspect
prosecutorial
This
of
reversal. But in the factual context of this
susceptible
troublesome because it is not
to
case, the evidence as to blood had a crucial
is,
line-drawing,
prose-
whether a
clear
that
significance and such serious misstatements
legitimate
is a
inference
cutorial statement
thereof,
argument
many made in rebuttal
opinion. The
impermissible personal
or an
twenty-seven day
at the end of a
are
Sexton, in which the
prohibited by
latter is
large
justice
too
to overlook when
and a
said)
5.8(b)
(as
approved
of
§
we have
Court
objectives
system.
fair
trial are the
relating to
Prosecu-
ABA
the
the
Standards
Function;
thus:
tion
Defense
jury
expert
testimony
The
listened to
pros-
unprofessional conduct for the
“It is
saying that whoever murdered Serita
personal belief or
express
to
ecutor
Hughes
gotten
likely
would most
falsity
opinion
of
as to the truth
blood on his hands.
heard
The
guilt of
evidence or the
the
testimony or
testimony
that
had stated that he
defendant.”
body except
did not
touch his wife’s
to
expected
prosecutor “is allowed and
But the
and, possibly,
cover her with a blanket
to
legitimate inferences of
explain
to
all the
her pulse. Arguably,
presence
take
of
from
appellants’ guilt
that flow
[the]
Hughes,
proved,
blood on
if
is a cornerstone
Hooks,
A.2d at 204.
evidence.”
Accordingly,
for the
the State’s case.
“proved"
to declare that
it had
when)
(or
a
question of whether
The
argue
had blood on his hands after the
permissibly
to the
prosecutor may
murder,
least,
defendant)
say
(or
at the
was to
has
jury that a witness
a
by
discussed
evidence showed that he had lied about the
or is
“liar” has been
“lied”
called our
and, worst,
parties have
way
saying many
it was a
courts and the
blood
Yes,
A
he did.
as to blood
5.The State’s misuse of its evidence
any way?
respond
by
Did he
in
introduction of evi-
Q
is further illustrated
statement,
relating
‘That doesn’t
A He made a
test to show the
dence
presence
to a chemical
anything.’
validity
mean
The
of the test was
of blood.
you perform
however,
that same test
stipu-
Did
Q
a contested issue. The
just spoken
about on the sandal
only
we have
lated that
purpose
it would
for the
use the test
showing
the defendant?
to it.
defendant’s reaction
A
testimony
Yes.
during
But
trial
the State elicited
you
happened?
tell us
Would
What
positive
Q
that the test result was
and indicated
happened there?
what
presence
of blood. Thus:
Well,
reading
got
positive
A
we
the same
right.
glow ap-
“THE COURT: All
A
as we did on the
on the test of the sandal
peared.
contending
glow
The State is not
added.)
(Emphasis
defendant’s hands.”
presence
blood;
indiated
correct?
[sic]
cautionary warning
Judge gave
Trial
MR. HOLLAND: Yes.
point.
jury,
made its
but
the State had
stipu-
MR. DALTON: That’s correct for the
prior
lation that went on
to this and it was
motion for a new trial
Rule 33
Defendant’s
agreed
counsel earlier.
prosecutor’s argument
part
in
based
BY MR. DALTON:
on the “lies” issue.
glowfl
Was there a
Yes,
Q
A
adopted
standard
7. The Third
the same
there was.
Circuit
LeFevre, Cir.,
F.2d
you
glow,
the de-
in United States v.
When
saw the
did
Q
recognize
glow?
fendant
re-
which tends to show that the testi-
support
attention to cases which
their
evidence
spective views.8
mony
Any
or statement is a lie.
statement
implies
prohibi-
in
a broader
Sexton which
epithet
“liar” is an
opinion,
In our
prosecutor’s argu-
tion is overruled.
If the
sparingly
argument
jury.
be used
to the
support
right
of his
to label testi-
ment
is
likely
It
a flashboard more
to create heat
“lie” amounts to no more than
mony a
in a
it
contentious courtroom than
is to
should believe the
saying
But,
illuminate the search for truth.
more
witnesses and not those of defend-
particularly,
who labels testi
ant,
impermissible.
comment
mony
passing
as a lie runs the risk of
from
legitimate
inference drawn from the evi
prosecution
The comments
dence, Hooks, supra,
expression
of an
comply with the standards
*12
this case did not
Sexton,
impermissible personal opinion.
su
and, therefore, were errone
stated herein
pra.
sayWe
this because a witness or a ous.
mistaken, uninformed,
party may be
or er
charges
prosecutori
reviewing
In
many
roneous in his facts or conclusions in
impermissive
on
al misconduct based
the
liar;
ways,
yet
labelling
and
not be a
a
“liar,”
we con
epithet
use of the
“lie”
argue
witness as a “liar” or to
that he has
“prejudicially af
sider whether the remark
say something quite
“lied” is to
different
rights of
ac
substantial
the
the]
testimony.
about his
fected
cused.”
The characterization
Sexton,
body degree in a first murder. That’s course, is, of free prosecution right. plead guilty We to that.” and the reason to comment on the evidence therefrom, Vess, language Walking contends that this able inferences prejudicial because it infers that Tightrope: Survey A of Limitations will were presumption of innocence. The statements patently police done the such error. *14 glaring misrepresentation. they know by the mere fact of his ment that the guilt not arrest someone until it is certain prejudicial prosecutorial describing thorough, work; and, presumption removed from a instead, accordingly, [*] will not arrest someone until he is guilty and inexcusable. commentary is to con- dence, however, [*] of a defendant’s the statements arrest. permissible [*] —and well-performed To condone destroys And that is They imply com- guilt is a are ization of evidence (1973), P.2d verted. torial missible. nied, 449 fendant can Ct.Crim.App., Supr., 377 So.2d Prosecutor’s (1980); Criminal stand, description of evidence as uncontro and, See, U.S. several courts Kirkland v. See, generally Closing Argument, 64 Journal Law and e. deny 382 So.2d e. g., Thompson and when he has not g., White v. as uncontradicted is or contradict speaking, a character S.Ct. When Criminology prohibit 1184, Nev.Supr., 590 v. only 1185 State, 66 L.Ed.2d cert. de the evi prosecu- the de (1980); 22, taken Ala. per Fla. State, Tex.Ct.Crim.App., 598 Todd v. opinion,
In our the cumulative im 286, Vess, (1980); supra, at 37. 294 S.W.2d pact of the errors discussed in II substan See, rule. e. that is not the universal tially Hughes’ right affected But to and de 1, Ill.2d reason, Hopkins, Ill.Supr., 52 prived g., People him of a fair trial. For that v. 283, (1972); People v. judgment Superior we reverse the of the 284 N.E.2d 285-86 1, Fritz, Ill.Dec. Ill.App.3d Court and remand the case for a new trial. 32 Ill.App.Ct., 77 736, 509, (1979). 506, 739 395 N.E.2d 609, California, 85 380 v. U.S. Ill Griffin 1229, (1965) is base 106 14 L.Ed.2d S.Ct. arguments We need not consider other that argument. holds Hughes’ for Griffin but, parties in view of the made proscribes “comment the Fifth Amendment remand, express views certain of we our on silence on the accused’s prosecution guidance Trial those Court. 1233, 615, Id. at 85 S.Ct. ....” caution, however, pro- We these broad then, inquiry, at 110. Our L.Ed.2d spective imply error for comments do not complained of were the statements whether Indeed, every literal violation thereof. into placing evidence permissible comments might violations be harmless error some comment impermissible violations, context, context or specific some literal take the stand. Hughes’ failure to might not even be error. We have recently inquiry present situation, framed such an from the if for no other “whether the reason, utilized the si- because the contested testimony lence to create guilt, recog- here, an inference of although concerning Hughes’ silence nizing that not all such arrest, remarks would have after his encompasses initial also prejudicial impact on the jury’s delibera- original charge silence after the was nolle requiring Hooks, tions prossed. differently, reversal.” 416 A.2d period Stated at 206. Hughes’ silence testified about at trial was not incident to a Miranda “custodial inter- We conclude that the statements situation, and, therefore, rogation”-type of made here did not create an inference of we conclude Miranda and its progeny guilt. The fact that defendant did not tes apply. do not tify is a somewhat attenuated conclusion to be drawn prosecutorial from a description “unrebutted,” evidence as argu in an C. ment directed weight given to the to be Hughes’ argument next concerns his evidence. In the context of this right Sixth to counsel. Amendment On we are say unable to prosecution 24, 1977, May during the interim between
prejudicially utilized defendant’s silence to prosequi nolle and the subse- create an guilt. inference of quent indictment, Hughes spoke with Mrs. Bell, mother-in-law,
Lucille
at her re-
Bell,
quest.
police
B.
Mrs.
assistance
with
Hughes’ knowledge,
without
recorded the
During
trial,
prosecution
offered
Bell read
conversation. At
Mrs.
state-
testimony
Hughes’ neigh-
from several of
transcript of the recorded
ments from a
bors and associates to the effect that he had
conversation,
prosecution com-
and the
never discussed his wife’s murder with
mented on those statements in summation.
objection,
them. Over
the Trial Court re-
police activity
this
contends that
ceived such testimony
impeach
a state-
right
violates his
Amendment
Sixth
by Hughes
ment
written in a letter to his
States,
counsel under
Massiah United
mother-in-law,
part:
which read in relevant
U.S.
We are of formal by way ‘whether indictment, Doyle prohibited ment. liminary hearing, cross examination informa ” concerning post-arrest (appar tion, v. Wil arraignment.’ silence Brewer 387, 398, 1232, ently liams, while in custody) of two de 430 S.Ct. U.S. 97 fendants, (1977) (Citations each of whom had received Mi 1239 L.Ed.2d [51 424] warnings. randa Doyle distinguishable omitted.)
575 well, 1507, 384 86 16 L.Ed.2d say We are unable to that Mrs. U.S. S.Ct. Supreme said 600 in which Court during taped Bell’s conversation occurred this: Hughes’ prosecution, let alone a “critical
stage”
place
of it:
the conversation took
steps by
such
“The courts must
take
more than seven months after the
protect
their
regulation
rule and
that will
prosequi
prejudicial outside inter-
year prior
processes
nolle
and more than a
to
from
prosecutors,
Neither
counsel
ferences.
pursuant
his indictment.
It occurred
to an
witnesses,
defense,
accused,
court
investigation,
prosecution.
not a
Accord
coming un-
staff nor enforcement officers
ingly,
Hughes’ right
we find no violation of
jurisdiction of the court should be
der the
to counsel.
permitted to frustrate its function. Col-
press
between counsel and the
laboration
IV
affecting the fairness
as to information
argues
Defendant also
denied
that he was
subject
only
of a criminal trial is not
to
right
jurors,
to a fair trial when the
who
highly
and
regulation, but is
censurable
permitted
separate
had been
over the
disciplinary
worthy of
measures.”
begun,
weekend after deliberations had
at 1522.
U.S. at
86 S.Ct.
exposed
were
in
newspaper
statements11
(1980); Hirsch
L.Rev. 1106
See
Cornell
inflam
prosecutors
highly
which the
made
E.D.Va.,
Bar,
Virginia
kop v.
State
matory out-of-court comments on the
(1976).
F.Supp. 1137
Lawyers
in violation of the Delaware
Code
Here,
prosecutors
particular,
in
one of the
Responsibility,
of Professional
DR 7-
his reference to the
should have known that
107(D).12
likely
“reasonably
would be
lie-detector test
opinion,
In our
the comments
trial”;
signifi-
to interfere with a fair
prosecutors plainly
clearly
and
violated
permissive
beyond
cant comment went
Responsibility,
Code of Professional
DR
“public record.”
bounds of reference to the
107(D).
Chicago
Lawyers
Cf.
Council of
prosecutors
The comments
both
were
7 —
Bauer, Cir.,
(1975);
Section 1.1 of the ABA Standards community rized the broad interest which had Press, Draft, Approved Fair Trial and Free article, enti- arisen around the trial. Another recommended that: tled, “Hughes Wife’s Mother” was de- Writes “During any the trial of criminal matter reprinting contents of the voted to letter defendant wrote the entire lawyer prosecu- ... no associated with the parents his wife’s give tion or defense shall extrajudicial or authorize *17 sometime after her death. interview, relating statement or
577
especial
permit
jury
separate,
to
failing
sequester
his discretion in
to
not to
case,
felony
after deliberations
jury
ly
after the commencement of its deliber-
in a
was rendered.
begun
the verdict
and before
ations.
Porta, Mass.
v. Della
See Commonwealth
sequestration
jury
While the
193,
(1949).
248
Supr., 324 Mass.
85 N.E.2d
during its deliberations is now within the
Brown,
T., 2 Marv.
In
v.
Del. O. &
judicial
Judge
discretion of
Trial
sound
said,
458,
the Court
36 A.
459
24(f),15
Superior
under
Court Criminal Rule
high grade
of as
a
as murder
“in felonies
background
there is an historical
of that
jury ought not
to
grade,
second
against
Rule
which that discretion must be
separate.”
care
caution. The
exercised with due
background,
Against
this historical
progenitor
24(f) provided
Rule
that un
Judge to
clearly
duty
of a Trial
it is
Court, “jurors
less
by
otherwise ordered
24(f)
Rule
with
exercise his discretion under
sequestered
may
permit
will not be
be
caution, especially
jury
after the
has
great
separate
any
during
to
at
time
the trial
ted
deliberating, according due con
commenced
prior
(Em
to retirement for deliberation.”
case,
to the nature of the
extra
sideration
phasis added.)16
case,
public interest
in the
ordinary
of Rule
days
Just
before the amendment
even one
prejudicial
upon
effects
possible
24(f),
State,
Bailey
this Court stated in
v.
public,
news
juror of interaction with
Del.Supr.,
(1976):
pounded Judge when Trial did not make exposure adequate inquiry possible
an as to But, given jurors to news accounts. our as to other errors at we conclusion need not determine whether these errors independent an for rever-
amount to basis sal.
[*] [*] [*] proceedings and remanded for Reversed consistent herewith.
McNEILLY, (concurring): Justice Although my overview of the blood and majority, lies issues differs from that of the prosecutor’s I find the rebuttal summation on the blood issue troublesome unlikely prejudice and not to have caused agree I defendant. also that the com- ments about defendant’s improper, courtroom as was demeanor were prosecutorial characterization of the year investigation prior two to defendant’s Therefore, impelled agree arrest. I am prosecu- that the cumulative effect of the I speedy tion’s conduct calls for a retrial. concur in that result. Carrad, (ar- Wilmington Clayton
David curiae. gued), for amicus (argued), Biggs William H. Uffelman Wilmington, petitioner be- Battaglia, & appellee. low— F., Respondent —Ap MICHAEL J. Belo w HERRMANN, J., C. DUFFY Before pellant, Cross-Appellee, HORSEY, JJ. F., —Ap
CARMELA L. Petitioner HERRMANN, Justice: Chief Belo w pellee, Cross-Appellant. of 13 appeal requires examination This that the Supreme 1512(a)(3), provides Court of Delaware. Del.C. § alimony, in divorce may grant Family Court Sept. 1981. Submitted actions, “commencing after annulment Decided Nov. 1981. or annul- decree of divorce entry more than to continue for ment but not marriage dissolution”—with years after here.1 The exceptions not relevant certain Alimony 1512(a) provides: and annulment in divorce “§ 1. 13 § Del.C. actions; waiver or release.