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Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, January 3, 2009

I Said, "M-I-S-T-R-I-A-L," Mistrial: Supreme Court Of Delaware Finds Trial Court Denied Mistrial Motion Despite Prejudicial, Unsolicited Comments By Prosecution Witness

I disagree with at least two parts of the recent opinion of the Supreme Court of Delaware in Smith v. State, 2008 WL 5246057 (Del.Supr. 2008), an opinion dealing with a witness improperly mentioning a defendant's plea negotiations with the prosecution.

In Smith, Corey Smith appealed from his convictions for Attempted Robbery in the First Degree, Assault in the Second Degree, and Conspiracy in the Second Degree.  And part of the evidence used to convict him was the testimony of Kenneth Butcher, who was charged along with Smith and accepted a plea bargain in exchange for his testimony against Smith.

During part of his testimony, Butcher described a conversation between Smith and himself while both were at a correctional center.  Butcher testified as follows:

     Q: After that letter, did you and Corey have more discussions about the case?

     A: After that letter, he was, like, "Yo, man, you going to confess? They trying to get me habitual." I'm like, "Hmm?" He said, "They trying to get me habitual." I'm like, "I'm not taking all the charges. I already got enough charges one me."

Following this exchange, defense counsel objected to Butcher's testimony indicating that Smith said that he was a habitual criminal and requested a mistrial, which the trial judge denied, instead deciding to give a curative instruction.  The prosecutor then resumed his examination of Butcher, leading to the following exchange:

     Q: Have you had any communication with Corey at all since being transferred to DCC?

     A: Yes.

     Q: What was that communication?

     A: I said, "What they offer you?" He said, "Ten."

"Defense counsel again objected on grounds that the testimony was inadmissible evidence of plea negotiations," and before defense counsel moved for a mistrial, the judge again gave a curative instruction, this time instructing the jurors in relevant part that:

     "To the extent there has been a suggestion of any sort that the defendant-not Mr. Butcher, but the defendant was offered a plea, you are to disregard that in its entirety. I do not want you to speculate about whether that occurred. I don't want you to speculate whether he accepted or rejected it. I don't want you thinking about that whatsoever in your deliberations or as you hear the evidence."

After Smith was convicted, he appealed, claiming that the court should have declared a mistrial because Butcher's first comment constituted inadmissible propensity character evidence under Delaware Rule of Evidence 404(a) and that Butcher's second comment was inadmissible evidence of plea negotiations under Delaware Rule of Evidence 410 (it seems to me that this Rule applied to Butcher's first comment as well). 

The Supreme Court of Delaware did not dispute either of these characterizations of Butcher's testimony but found that because Butcher's comments were unsolicited, it had to apply the four-part analysis from Pena v. State, 856 A.2d 548 (Del.Supr. 2008), to determine whether the trial court should have granted a mistrial.  That analysis considers:

     "(1) the nature and frequency of the comments; (2) the likelihood of resulting prejudice; (3) the closeness of the case; and (4) the sufficiency of the trial judge's efforts to mitigate any prejudice."

Under part four, the court found that the trial judge's instructions to the jury were sufficient to mitigate any prejudice that may have arisen."  Conversely, under factor three, the court found that:

     "this case was close in that it turned on Butcher's credibility. Because [the victim] could not identify his attacker and the DNA evidence...was inconclusive, Butcher's identification of Smith as the shooter was the key to the State's case. The prosecutor admitted prior to trial that the State could not proceed without Butcher's testimony."

At the same, time, under factor two, the court found that "the likelihood of resulting prejudice from [Butcher's] comments was slight because:

     (a) "during his cross-examination of Butcher the defense counsel made the jury aware that the maximum sentence both Butcher and Smith faced was at least eighty-three years and that, by pleading guilty, Butcher faced only a maximum of ten years in prison. This testimony reduced the prejudicial impact, if any, of the jury's knowledge of a ten-year plea offer;" and

     (b) the State did not assert that Smith was a habitual offender. Rather, the most that the jury could infer from the comment was that Smith told Butcher that the State was trying to make him a habitual offender."

I agree on the former conclusion, but the latter conclusion forms the first basis for my disagreement with the Supreme Court of Delaware.  Of course, the State did not assert that Smith was a habitual offender. The court was applying the Pena four-part analysis, meaning that it was dealing with the unsolicited comment by a witness, not an affirmative assertion of the State.  And looking at it in that context, Butcher's comment seems to me to be about as prejudicial as an unsolicited comment can get.  It would be my guess that the average juror would have assumed from Butcher's comments that Smith had been convicted of many crimes in the past, raising a clear and present danger that Smith was convicted based upon his past and not based upon the evidence of his guilt presented at trial.

Finally, under factor one, the court found that:

     "the nature and frequency of the comments do not require a mistrial. The two disputed comments touched on sentencing consequences and one related to a rejected plea offer. Both comments were fleeting, unsolicited, and reflect Smith's own words. Moreover, as the trial judge observed, it is questionable whether Butcher's one-word references to 'habitual' and 'ten' even registered with the jury or conveyed any meaning if they did register."

This conclusion forms the second basis for my disagreement.  First of all, I am confused as to why the court mentioned that the disputed comments were "unsolicited."  Once, again, the court was applying the Pena four-part analysis, meaning that it was dealing with the unsolicited comment by a witness.  Furthermore, I find it odd that the court found that the fact that Butcher was restating Smith's own words cut against the need for a mistrial.  In my mind, this made Butcher's testimony more, as opposed to less, prejudicial to Smith.

But what is even more shocking to me is that the court found it questionable that Butcher's references to the plea bargaining process registered with the jury or conveyed any meaning to them.  As I noted before, the first sentence of the court's limiting instruction read:

     "To the extent there has been a suggestion of any sort that the defendant-not Mr. Butcher, but the defendant was offered a plea, you are to disregard that in its entirety."   

Now, as the court indicated, this limiting instruction limited the prejudice of Butcher's comments, but it also clearly informed the jury that Butcher was addressing the plea bargaining process.  Therefore, I don't see how the Supreme Court of Delaware could have questioned how or to what degree Butcher's comments registered with the jury.

Now, I'm not sure whether a different conclusion on either of these two factors would have changed the court's ultimate disposition, but it seems to me that based upon the court's own acknowledgement of the closeness of the case this would have been a distinct possibility.

-CM      

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