Petition for Writ of Certiorari — Delaware v. Van Arsdall

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IN THE

SUPREME COURT OF THE UNITED

DER L. STEVas.

sari

October Term, 1984

STATE OF DELAWARE,

Petitioner,

ROBERT E. VAN ARSDALL,

Respondent

On Petition for Writ of Certiorari

to the Supreme Court of Delaware

PETITION FOR WRIT OF CERTIORARI

Dated: February 7, 1985

Charles M. Oberly, III

Attorney General of the

State of Delaware

Gary A. Myers

Counsel of Record

John A. Parkins, Jr.

Chief, Appeals Division

Loren C. Meyers

Deputy Attorney General

DELAWARE DEPARTMENT

OF JUSTICE

1. S. Race Street

P.O. Box 373

Georgetown, DE 19947

(302) 856-5353

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA. PA. 19123 (215) 236-2000

, ed cE. 4

a ire hi res e

2 i

Question Presented

Under the Confrontation Clause, when a prosecu-

tion witness relates facts which the defendant has con-

ceded, does an erroneous restriction of the defendant’s

cross-examination of that witness require reversal with-

out consideration of the harmlessness of the error?!

1. The principal parties in the Delaware Supreme Court were

the STATE OF DELAWARE, Petitioner, and ROBERT E. VAN

ARSDALL, Respondent. Additionally, the Delaware Supreme Court

permitted the GANNETT COMPANY, INC., publisher of the

Wilmington, Delaware newspapers The Morning News and The

Evening Journal, to intervene as a party. Because the issue in which

GANNETT was interested, the trial court’s refusal to grant the

defendant's request to close the pretrial proceedings, was not re-

solved by the Delaware Supreme Court and is not presented by this

petition, GANNETT has not been named as a party in this Court.

TABLE OF CONTENTS

Page

Gusstion Ponsemted .......cccccicusdus tases ueeet (i)

Pastien Beebeel, ... soc cncccncsenssueseee (i)

Cases asnh Accipostiins .... ... so ceidekaeeneeeeee (iii )

| Meee 1

Jesstadictinmad Goraes..... . . 66s cao vscnteessceueees ]

Constitutional Provisions Involved ............... 2

Seatomnent of te COOGR. «<i os s0cecandesaeecuueaee 2

(. .) rerrre 3

\) f Seepeeeeereerenrets eo 6

The Delaware Supreme Court and the Auto-

matic Reversss TRUMP... «0.50 ccescsssusucess 8

Reasons for Granting the Writ................... 9

1. The Automatic Reversal Rule of the De-

cision Below Conflicts With Decisions of

Other Courts of Appeals and State Supreme

er re g

2. The Automatic Reversal Rule of the Deci-

sion Below Conflicts With Decisons of This

3. This Petition Should be Held Pending A

Decision in United States v. Bagley, No.

OO-4B 6 oi cs ceccizavceseuneeseeeeeee 17

I 18

Appendix

Opinion of the Delaware Supreme Court ..... A-1

Order Denying Rehearing En Banc.......... B-1

Relevant Delaware Statutory Provisions ...... C-1

TABLE OF CASES AND AUTHORITIES

Cases: Page

Bagley v. Lumpkin, 719 F.2d 1462 (9th Cir. 1983),

cert. granted, 105 S.Ct. 427 (1984) (No.

EEE ES 11, 17

Beynum v. United States, 480 A.2d 698 (D.C. App.

es CeCe deeb sacessisccvscess 13

Brown v. United States, 411 U.S. 223 (1973)..... 15

Bruton v. United States, 391 U.S. 123 (1968).... 15

California v. Stewart, 384 U.S. 436 (1966)....... 2

Carrillo v. Perkins, 723 F.2d 1165 (5th Cir. 1984). 12

Chapman v. California, 386 U.S. 18 (1967). 10, 11, 15

Chipman v. Mercer, 628 F.2d 528 (9th Cir. 1980). 11

Commonwealth v. Wilson, 407 N.E.2d 1229 (Mass.

tae ce ecescccsscececcess 12

Connecticut v. Johnson, 460 U.S. 73 (1983)..... 9,15

Davis v. Alaska, 415 U.S. 308 (1974) ......... 10, 11

Dutton v. Evans, 400 U.S. 74 (1970) ............ 10

Florida v. Meyers, _—~U.S. _—s, 104 S.Ct. 1852

EEE EEE Se 2

Giglio v. United States, 405 U.S. 150 (1972) ..... 16

Harrington v. California, 395 U.S. 250 (1969). 14, 15

Hoover v. State of Maryland, 714 F.2d 301 (4th Cir.

ccc cece ecesecces 12

Kines v. Butterworth, 669 F.2d 6 (1st Cir. ), cert. de-

aoe, Gow wm. Sew (IGS) )....... 0. cee eens 12

Michigan v. Long, U.S. , 103 S.Ct. 3469

Tee ct cece ncencecccs fe)

Milton v. Wainwright, 407 U.S. 371 (1972)...... 15

TABLE OF CASES AND AUTHORITIES— Continued )

Cases: Page

Motes v. United States, 178 U.S. 458 (1900) ..... 14

Parker v. Randolph, 442 U.S. 62 (1979)..... 9,10, 15

People v. Boyce, 366 N.E.2d 914 (Ill. App. 1977).. 12

Ransey v. State, 680 P.2d 596 (Nev. 1984)....... 12

Schneble v. Florida, 405 U.S. 427 (1972)......... 15

Springer v. United States, 388 A.2d 846 (D.C. App.

ED = yah eee kG-eb be ee Cees 12

State v. Parillo, 480 A.2d 1349 (R.I. 1984) ....... 1]

State v. Patterson, 656 P.2d 438 (Utah 1982)..... 12

State v. Pearce, 414 N.E.2d 1038 (Ohio 1980).... 12

United States v. Duhart, 511 F.2d 7 (6th Cir. ), cert.

dismissed, 421 U.S. 1006 (1975).......... 12. 13

United States v. Gambler, 662 F.2d 834 (D.C. Cir.

I Se a oie ae eee ee eee rae 12,13

United States v. Hasting, U.S. , 103 S.Ct.

| RPE epee ry en mn pretrae neeeers 16

United States v. Price, 577 F.2d 1356 (9th Cir. 1978),

cert. denied, 439 U.S. 1068 (1979)........... 1]

United States v. Smith, 748 F.2d 1091 (6th Cir.

Ds eck code ék Seteds eee ace, 12

United States v. Uramoto, 638 F.2d 84 (9th Cir.

Pe. Sc cc cue eeoncuare Scat heater e eae, 11

United States v. Williams, 668 F.2d 1064 (9th Cir.

os Oo ae ie aes Le en oe 11

United States ex rel. Scarpelli v. George, 687 F.2d

1012(7th Cir. 1982), cert. denied, 459 U.S. 1171

CD ks ba he eee ARs reece 12

TABLE OF CASES AND AUTHORITIES—(Continued )

Cases: Page

Webb v. United States, 388 A.2d 857 (D.C. App.

NS AUC EEE a SUE Es STERN as 12

Statutes and Court Rules:

ee es SN oe od dae 5440 sec cc deacas os 2

BS Ghee. ©. See) COOTOD. «gn ccc cece sccvees 2,2

BS Gee. ©. SRN) CHOTO). 2. ccc ccc cc eccces 2

te ee ge. no 2

Be Me ee ODS 6 on oc ok sc ccevcn sevens 3.7

aes. Geper. Ce. Cote BR. Gila)... ... 22. ccc ccccces )

Other Authorities:

Field, Assessing the Harmlessness of Federal Con-

stitutional Error — A Process in Need of A Ra-

tionale, 125 U. Pa. L. Rev. 15 (1976) ........ 14

C. Wright, Federal Practice and Procedure (2d ed.

| PRIUS Sie pre I Ng Eyer ea esa einen eae nee 11

/ a

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

STATE OF DELAWARE,

Petitioner,

Vv.

ROBERT E. VAN ARSDALL,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Delaware

The State of Delaware, petitioner, requests that a writ

of certiorari issue to review the judgment and opinion of

the Delaware Supreme Court entered November 19,

1984.

Opinion Below

The opinion of the Supreme Court of Delaware dated

November 19, 1984 is not yet reported. It is reproduced

in the Appendix to this Petition beginning at A-1.

Jurisdictional Grounds

The judgment of the Deiaware Supreme Court, re-

versing Van Arsdall’s murder and possession of a deadly

weapon convictions, was entered on November 19, 1984.2

A timely motion for a rehearing before the Delaware Su-

preme Court, sitting en banc, was denied December 12,

1984. App. at B-1. The jurisdiction of this Court is in-

voked under 28 U.S.C. §1257(3). Although the judg-

ment below vacated the convictions and remanded for a

new trial, the judgment is final for purposes of review by

this Court because Delaware law would preclude, in the

event of an acquittal upon retrial, a subsequent prose-

cution appeal of the federal issue now presented. Florida

vu. Meyers, U.S. ,104S8.Ct. 1852, 1853 n. * (1984)

(per curiam); California v. Stewart, 384 U.S. 436, 497,

498 n. 71 (1966) (decided with Miranda v. Arizona).

CONSTITUTIONAL PROVISION INVOLVED

1. The Confrontation Clause of the Sixth Amend-

ment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy

the right ... to be confronted with the witnesses

against him.

2. Although not directly involved in the question pre-

sented, the following provisions of the Delaware code

were involved in the prosecution and are reproduced in

the Appendix at C-1. 11 Del. C. §§271(2)(b), 636(a)(1),

1447 (1979); 21 Del. C. §4149 (1981).

STATEMENT OF THE CASE

A jury found Robert A. Van Arsdall guilty of mur-

dering Doris Epps in the apartment of his friend, Daniel

Pregent, in the early morning hours of January 1, 1982.2

2. Delaware appellate practice does not provide for any separate

document known as a judgment. Rather the clerk enters a docket

notation based on the final paragraph of the written opinion.

3. 11 Del. C. §636(a)(1) (1979) [App. C-1]. Van Arsdall was also

convicted of possessing a deadly weapon, a knife, during the mur-

der. 11 Del. C. §1447 (1979) [App. C-1]. The position of the pros-

On appeal, the Delaware Supreme Court determined that

the trial court had impermissibly, under the Confronta-

tion Clause, restricted the defense’s cross examination of

a prosecution witness, Robert Fleetwood. Refusing to

make any inquiry concerning whether Fleetwood’s tes-

timony was a crucial part of the prosecution or merely

echoed facts conceded by the defense, the Delaware court

then reversed the convictions, holding that the Contron-

tation Clause error could never be found harmless. The

question presented by this petition is whether the Clause

requires such a rule of automatic reversal.

1. The Killing

Pregent and Fleetwood lived across the hall from each

other in a small apartment house in Smyrna, Delaware.‘

On December 31, 1981, they held an informal New Year’s

Eve party, with people mingling in their apartments all

during the day. In the early afternoon, Doris Epps ap-

peared, inquiring about renting Fleetwood’s soon to be

vacated apartment. Epps returned later and joined the

party. At about the same time, Van Arsdall, an acquaint-

ance of both Pregent and Fleetwood, arrived at the party,

accompanied by several friends. He remained for a short

time and then left. Tr. 1191-94, 100-01 (Crain); I1141-47

(Fleetwood); IV10-12 (Meinier).

As the party continued into the evening, it lost much

of its jovial nature. Pregent quarreled with one female

guest and several items were broken in Fleetwood’s apart-

ment. Tr. I195, 108-09 (Crain); III62-63 (Fleetwood);

1V54 (Meinier). By 10:30 p.m., Epps had passed out, and

Pregent, assisted by Robert Crain, carried her into

Pregent’s sparsely furnished apartment and laid her on a

ecution was that Van Arsdall either singly, or jointly with Pregent,

killed Epps. 11 Del. C. §271(2)(b) (1979) (accomplice liability) [App.

C-1]}.

4. Citations to the trial transcript (Tr.) will be by volume and

page number, followed by the witness’ name. The prosecution’s trial

exhibits shall be cited as “S. Exh.”

convertible sofa-bed in the living room. Soon afterwards,

Fleetwood “closed” the party, ordering everyone except

his friends Alice Meinier and Mark Mood to leave his

apartment. After the others had left, the three continued

drinking in Fleetwood’s apartment. Tr. III48-49

(Fleetwood); IV56 (Meinier).

Sometime after 11:00 p.m., Fleetwood walked across

the hall, and momentarily peeking his head in the door-

way to Pregent’s apartment, saw Van Arsdall sitting on

the corner of the sofa-bed. Pregent’s feet, hanging over

the side of the bed, were visible next to him. Tr. [1150-52

(Fleetwood). At 11:53 p.m., with Fleetwood falling asleep,

Menier walked across the hallway and looked at the clock

in Pregent’s kitchen. The living room was dark. Tr. [V14

( Meinier).

About one hour later, with Fleetwood still asleep,

Meinier heard a knock at Fleetwood’s door. When she

opened the door, there stood Van Arsdall holding a bloody

knife, his shirt splattered and his hands covered with

blood. Tr. 1V17-21 (Meinier).> Van Arsdall muttered that

“he had gotten in a fight” but that “I got them back.” Tr.

1V19-20 (Meinier). Told by Van Arsdall that “there’s

something wrong across the hall,” Meinier looked into

Pregent’s apartment and saw Epps’ body on the kitchen

floor.

When the police arrived several minutes later, they

found Epps’ disemboweled and mutilated body lying on

the kitchen floor with the floor and surrounding furnish-

ings splattered with blood and tissue. In the darkened

living room, they found Pregent wrapped in a blanket

lying on the blood splattered sofa-bed. Tr. 1V 129-30 (Tim-

mons).

While the police continued their investigation, Van

Arsdall remarked that he “didn’t think it would go like

this.” Tr. VII70-72, 77 (Montgomery). Later that morn-

5. Clinging to Van Arsdall’s blood covered watch was a piece of

human tissue.

ing, in tape-recorded statements, both Van Arsdall and

Pregent told the police that Van Arsdall had returned to

Pregent’s apartment between 11:00 p.m. and midnight

and that the two had talked for a while, first in the kitchen

and then in the living room, until Pregent fell asleep next

to Epps on the sofa-bed. Then Van Arsdall laid down on

some cushions which had been placed on the floor near

the sofa-bed. S. Exh. 73 at 2, 9-10 (Van Arsdall); 75 at

4-6, 8-9 (Pregent). Van Arsdall denied any knowledge of

how the killing occured, indicating he stepped out into

the hallway for a breath of fresh air and had discovered

Epps’ body when he returned to the apartment. S. Exh.

73 at 2, 4, 12-13.°

Two days later, Van Arsdall told the police that he

had lied in portions in his first statement in order to “cover

up” tor his friend Pregent. He repeated that he had re-

turned to Pregent’s apartment at around 11:30 p.m. and

that, with Epps asleep on the sofa-bed, the two had talked

in the living room. However, he now said that as he be-

gan to fall asleep on the cushions, he had heard noises on

the bed and had then awoke to see Pregent dragging Epps

towards the kitchen. When he arose to investigate, the

smaller Pregent had struck him and had then begun stab-

bing Epps. As he sought to pull Pregent away, Pregent

pushed him into the bloodied kitchen and struck him

again. After Pregent washed his hands and returned to

the bed, Van Arsdall said he removed the knife from Epps’

body and went across the hall. S. Exh. 74.7

6. Van Arsdall said that he had met Menier in the hallway and

then returned to discover the body, becoming splattered with blood

as he tried to feel Epps’ pulse. He denied having the knife and said

he had lost his watch earlier that evening. Pregent told the police

that after talking with Van Arsdall in the living room, he had fallen

asleep on the bed and the next thing he remembered was being

awakened by the police. S. Exh. 75 at 2, 10.

7. Pregent, in a second statement, continued to maintain that

he fell asleep after talking to Van Arsdall and had no knowledge of

the killing. S. Exh. 72.

2. The Trial

Van Arsdall was tried first for the murder of Epps. In

his opening remarks, before any evidence had been pre-

sented, defense counsel framed the issues for the jurors.

Emphasizing that Van Arsdall would testify, counsel told

the jury that the defense did not dispute that Van Arsdall

had returned to Pregent’s apartment at 11:30 p.m., that

he had been present in the apartment when Epps was

killed, and that he had carried a bloody knife into

Fleetwood’s apartment. Tr. I130, 38, 40-41. Counsel said

the defense intended to show that Pregent alone, had, for

some unknown reason, killed Epps. Tr. 1139-41.

The prosecution’s case was composed of three types

of evidence. First, several of the party-goers, including

Fleetwood and Meinier, and the responding police offic-

ers testified concerning the activities at the party, the

scene after the killing, and the statements of Van Arsdall.

Secondly, without objection,® Van Arsdall and Pregent’s

post-arrest statements were played for consideration by

the jury. Finally, the State called a forensic expert, who

demonstrated to the jury that based on an analysis of the

nature and type of the bloodstains at the crime scene and

on Van Arsdall’s clothing, that Epps had been originally

attacked and stabbed while she was on the sofa-bed; that

Van Arsdall had been facing, in standing position, a pro-

fusely bleeding arterial wound; and that he had kneeled

in alarge pool of blood. Tr. VI56-60, 88-94, 100-04, 108-09

(Lee).

Fleetwood testified concerning the New Year’s Eve

party events and his momentary glimpse of Van Arsdall

sitting on the bed next to Pregent’s feet. Near the end of

8. Prior to trial, Van Arsdall had filed an unsuccessful motion to

suppress his first statement as involuntary and violative of a state

prompt arraignment requirement. The supression issue was not

pressed on appeal. He never lodged any objection to the admissi-

bility of his second statement. Although Pregent did not testify, Van

Arsdall made no objection to the introduction of his statements.

his cross-examination, defense counsel sought to have

Fleetwood admit that eight months after the murder, he

had been arrested for walking drunk on a highway,? and

that the charge had been dismissed after he had indi-

cated that he would speak to the prosecutor the next day

concerning his recollection of the killing. Tr. III69, 85-86.

The trial judge precluded the inquiry. Tr. III88.'° Sim-

ilarly, the trial judge disallowed any cross-examination of

Fleetwood concerning whether he had been questioned

by police about an unrelated homicide occurring after

the Epps murder.

As his counsel had indicated, Van Arsdall took the

stand and repeated the chronology of events that he had

given in his second statement, telling the jury that after

his return at around 11:30 p.m., Pregent and he had talked

momentarily in the kitchen and then moved into the liv-

ing room, where as he sat on the corner of the sofa, they

had a drink and continued to talk. He then repeated his

story that after laying on the cushions he had been awak-

ened to find Pregent stabbing Epps and had unsuccess-

fully attempted to intervene. Tr. X41-46, 49-57.1!

In his summation, defense counsel told the jury that

the defendant did not dispute that he had returned to

Pregent’s apartment before midnight, that he had sat on

the bed in the living room, and that he had been present

while Epps was killed. Rather, the onlv issue was whether

9. 21 Del. C. §4149 (1981) [App. at C-1]. The offense is a mis-

demeanor.

10. The trial judge, before ruling, allowed defense counsel to

question Fleetwood outside the presence of the jury concerning the

arrest and dismissal. Fleetwood said that he would have gone to the

prosecutor’s office even if the charge had not been dismissed and

that his present testimony related the same facts he had told the

police the night of the killing.

11. For the first time, Van Arsdall said that Epps and he had

had sexual intercourse on the bed while Pregent was out of the room.

This trial revelation occurred after a pre-trial fiber and hair analysis

disclosed Epps’ body and pubic hair on his pants and underclothing.

he had participated in the killing. Tr. X132-33, 78.'2 The

jury found Van Arsdall guilty.'*

3. The Delaware Supreme Court and the Automatic Re-

versal Rule

The Delaware Supreme Court reversed. Initially,

scrutinizing only the nature of the excluded impeach-

ment evidence, the court held that the trial judge’s rul-

ing precluding cross-examination of Fleetwood concern-

ing his misdemeanor arrest violated the Confrontation

Clause because it “prevented the jury from considering

facts from which it could have drawn inferences about

|his] testimonial reliability.” App. at A-5.

The Delaware Court then turned to the State’s ar-

gument that the Confrontation Clause error was harm-

less beyond a reasonable doubt because Fleetwood’s tes-

timony was neither crucial nor devastating. Instead, his

evidence was merely cumulative of, and mirrored, what

Van Arsdall repeatedly had conceded in his post arrest

statements and his trial testimony, i.e., that he had been

in Pregent’s apartment with Pregent after 11:30 p.m.

Brief for Appellee (State of Delaware) at 13-16, Van

Arsdall v. State, No. 346, 1982 (Del. Nov. 19, 1984).

While not disputing the conclusion that Fleetwood’s

testimony, in hindsight, was cumulative in nature and

hence unimportant, App. at A-6,'4 the Delaware court

12. In his closing argument, deiense counsel emphasized that

Fleetwood's testimony only proved what Van Arsdall had never de-

nied, that he was in Pregent’s apartment before Epps was murdered.

Tr. X142. Indeed, counsel used other portions of Fleetwood’s testi-

mony, which indicated that Pregent had earlier in the evening

punched a hole in the hall, to support the defense’s position that

Pregent acted alone. Tr. X142-43.

13. At a subsequent trial, Pregent was acquitted.

14. The opinion never states that Fleetwood’s testimony was

crucial to the prosecution or had any damaging effect. Indeed, the

nature of the witness’ testimony is not considered by the Delaware

court when determining whether a Confrontation Clause error has

occurred. App. at A-4-A-7.

refused to even consider the prosecution’s position.

Rather, again focusing on the nature, and not the effect,

of the error, the court held that because “the defendant

was subjected to a blanket prohibition against exploring

potential bias through cross-examination,” the trial

court’s evidentiary ruling was a “per se error” under the

Confrontation Clause, which automatically required re-

versal. App. at A-7.!®

Reasons for Granting the Writ

1. The Automatic Reversal Rule of the Decision Below

Conflicts With Decisions of Other Courts of Appeals

and State Supreme Courts

In the decision below, the Delaware Supreme Court

held, as a matter of federal constitutional law, that an

erroneous restriction of the defendant’s_ cross-

examination of any prosecution witness can never be held

harmless.'© The opinion is the latest addition to a con-

15. The structure of the Delaware court's opinion clearly indi-

cates that it was attempting to divine the appropriate federal harm-

less error rule and not crafting a standard under any applicable state

rule or statute. First, no reference is made to the Delaware harmless

error rule, Del. Super. Ct. Crim. R. 52(a). See Michigan v. Long,

—U.S. , 103 S. Ct. 3469, 3474-78 (1983). Secondly, the per se

rule adopted is supported by a reference to an opinion of the District

of Columbia Court of Appeals. Finally, the court states that its rule

is meant to be “consistent with Davis v. Alaska, 415 U.S. 308(1974).”

Cf. Connecticut v. Johnson, 460 U.S. 73, 81 n. 9 (plurality opinion),

90-93 (Powell, J., dissenting) (1983) (state court, in an opinion lack-

ing reference to state policy or statute, was applying federal harm-

less error rule).

16. For the purpose of review by this Court, Delaware will not

contest the decision of the court below that the trial court erred when

it prevented Van Arsdall from questioning Fleetwood about the prior

misdemeanor arrest and subsequent dismissal. However, the past

opinions of this Court reflect the ambivalent relationship between

the Confrontation Clause’s substantive guarantee and the notion of

harmless error in a particular prosecution. Compare Parker v.

Randolph, 442 U.S. 62, 72-73 (1979) (plurality opinion) and Dutton

fusing morass of lower court opinions which have sought,

often with conflicting results, to chart the scope of ap-

pellate remedies in cases involving the Confrontation

Clause. After Davis v. Alaska, 415 U.S. 308 (1974) un-

derscored that each trial court ruling concerning the

scope of cross examination may implicate constitutional

values, appellate courts have struggled to determine the

appropriate relationship between the Confrontation

Clause errors described in Davis and the guidelines for

harmless error analysis described in Chapman v. Cali-

fornia, 386 U.S. 18 (1967).

In Chapman, this Court rejected the contention “that

all federal constitutional errors, regardless of the facts

and circumstances, must always be deemed harmful.”

386 U.S. at 21-22. Rather, Chapman emphasized that a

trial error, including one of constitutional magnitude, may

be found harmless, so as not to warrant reversal, when

the appellate court can say “beyond a reasonable doubt

that the error complained of did not contribute to the

verdict obtained.” 386 U.S. at 24.

Seven years later in Davis, this Court held that if the

testimony of a witness provides a “crucial link in the proof”

of the crime so that “[t]he accuracy and truthfulness of

his testimony were key elements in the State’s case,”

Davis, 415 U.S. at 317, a trial court may not, consistent

with the Confrontation Clause guarantee, prevent the de-

fendant from attempting to impeach the witness by show-

ing possible bias or interest arising from a “relationship”

with the prosecution. While emphasizing that in the case

before it there was “real possibility” that the ‘excluded

impeachment evidence would have done “|s|erious dam-

NOTES (Continued )

v. Evans, 400 U.S. 74, 87-88 (1970) (plurality opinion) (no Con-

frontation Clause violations because hearsay statements were not

“crucial” or “devastating”) with Parker, 442 U.S. at 77, 78-79

(Blackmun, J., concurring) and Evans, 400 U.S. at 90, 92-94

(Blackmun, J., concurring) (Confrontation Clause violations but er-

rors harmless).

age to the strength of the State’s case,” Davis, 415 U.S.

at 319, this Court noted that the denied right of effective

cross-examination was “constitutional error of the first

magnitude and no amount of showing of want of preju-

dice would cure it.” Davis, 415 U.S. at 318 (quoting

Brookhart v. Janis, 384 U.S. 1, 3 (1966)).!7

Relying on that language, several courts, including

the court below, have held that once an appellate court

determines that the trial court erroneously restricted

cross-examination, no harmless error analysis is permis-

sible.'* Those courts view Confrontation Clause errors as

falling within the category, suggested in Chapman, 386

U.S. at 23 & n. 8, of generically harmful violations which

require reversal without regard to the facts or circum-

stances of the particular case. United States v. Uramato,

638 F.2d 84, 87 (9th Cir. 1980); Chipman v. Mercer, 628

F.2d 528, 533 (9th Cir. 1980); State v. Parillo, 480 A.2d

1349, 1357-59 (R.I. 1984).!9 See generally 3A C. Wright,

Federal Practice and Procedure §855 at 329-30 (2nd ed.

1982).

17. The language quoted from /rookhart had, in that earlier

case, been lifted, as a concession, from a party's brief.

18. Despite its two tiered structure, the Delaware rule states a

rule of automatic reversal for all Confrontation Clause errors. The

Delaware approach purports to allow an inquiry into harmless error

if, from the permitted cross examination, “the jury |had] sufficient

information from which to infer bias.” App. at A-7. However, at the

same time, the Delaware court determines whether an error oc-

curred by ascertaining whether the jury had been “exposed to facts

sufficient for it to draw inferences as to the reliability of the witness.”

App. at A-5. Thus, if sufficient information had been presented, no

constitutional violation occurred.

19. Accord Bagley v. Lumpkin, 719 F.2d 1462, 1464 (9th Cir.

1983), cert. granted, 105 S. Ct. 427 (1984) (No. 84-48). However,

the Ninth Circuit has itself been in disharmony about an automatic

reversal rule. See,e.g., United States Price,577 F.2d 1356, 1361-64

(9th Cir. 1978), cert. denied, 439 U.S. 1068 (1979) (rejecting rule);

United States v. Williams, 668 F.2d 1064, 1070 n. 14 (9th Cir. 1981)

(noting division).

Other courts have declined to read Davis as articu-

lating an automatic reversal rule and have held that er-

roneous restrictions on cross-examination may be found

harmless. United States v.Gambler, 662 F.2d 834, 840-42

(D.C. Cir. 1981); Kines v. Butterworth, 669 F.2d 6, 11-13

(Ist Cir.), cert. denied, 456 U.S. 980 (1981); United

States v. Smith, 748 F.2d 1091, 1096 (6th Cir. 1984);

United States ex. rel. Scarpelli v. George, 687 F.2d 1012,

1013-14 (7th Cir. 1982), cert. denied, 459 U.S. 1171

(1983); Commonwealth v. Wilson, 407 N.E. 2d 1229,

1247 (Mass. 1980); Ransey v. State, 680 P.2d 596, 597-98

(Nev. 1984); State v. Pearce, 414 N.E. 2d 1038, 1043-44

(Ohio 1980); State v. Patterson, 656 P.2d 438, 439 (Utah

1982).2° Several courts view the harmless error analysis

particularly appropriate in those cases where the appel-

late court, vested with the hindsight view not generally

available to the trial court, can see that the witness did

not provide crucial testimony. United States v. Duhart,

511 F.2d 7, 9 (6th Cir.), cert. dismissed, 421 U.S. 1006

(1975); People v. Boyce, 366 N.E.2d 914, 920-21 (Ill. App.

1977). Finally, one court has crafted a unique rule, man-

dating reversal for in_ limine_ restrictions’ on

cross-examination but permitting the prosecution to

show harmless error where the jury has garnished, from

the allowed cross-examination, sufficient information to

infer bias. Springer v. United States, 388 A.2d 846, 855-56

(D.C. App. 1978).?!

20. The Fourth and Fifth Circuits have applied harmless error

analysis while noting that language in Davis does suggest an auto-

matic reversal rule. Hoover v. State of Maryland, 714 F. 2d 301, 306

& n. 4 (4th Cir. 1983); Carrillo v. Perkins, 723 F. 2d 1165, 1170-73

(Sth Cir. 1984).

21. The divergence of approaches, resulting in different con-

clusions, is most starkly emphasized by the opinions by the two courts

exercising jurisdiction in the District of Columbia. Thus, the Dis-

trict of Columbia has applied its per se rule requiring reversal where

the trial court precluded cross-examination inquiry into the exist-

ence of a pending lawsuit between the complaining witness and the

defendant. Webb v. United States, 388 A.2d 857, 859 (D.C. App.

Yet, the Delaware court below stakes out a per se

reversal position beyond any previously established. Be-

cause the Delaware court does not, in its criteria for de-

termining the substantive violation, App. at A-5, consider

whether the witness provided crucial testimony, the Del-

aware approach requires reversal for an erroneous re-

striction no matter how insignificant the witness’ testi-

mony. As such, the Delaware view stands in direct con-

flict with the decision in United States v. Duhart, 511i

F.2d 7 (6th Cir. 1975), where the district court, as had

the Delaware trial court, prohibited the defendant from

cross examining a prosecution witness about other crim-

inal charges which had been lodged against him. The

Court of Appeals had little hesitation in finding that the

restriction erroneous. Yet, it refused to embrace the no-

tion that, in all cases, “the complete denial of access to an

area which is properly the subject of cross-examination

. cannot be considered harmless.” 511 F.2d at 7. In-

stead, the court concluded that because the error in-

volved a “merely buttressing prosecution witness” who

did not present any testimony critical to the determina-

tion of guilt, it was harmless.

2. The Automatic Reversal Rule of the Decision Below

Conflicts With Decisions of this Court

The prosecution urged that the Confrontation Clause

error was harmless because the witness’ not fully cross-

examined testimony was merely cumulative or duplica-

tive of facts consistently conceded by the defendant in

his unchallenged pre-trial statements and his trial testi-

mony. The Delaware court below instead applied a rule

of automatic reversal. The opinion of that court runs di-

1978). But see Beynum v. United States, 480 A.2d 698, 707 (D.C.

App. 1984). In contrast, the Court of Appeals for the District of Co-

lumbia Circuit has held that the total denial of any inquiry into such

a lawsuit, offered to prove bias, is an error which may be subjected

to a Chapman analysis and, in the context of the case, be found

harmless. Gambler, 662 F.2d at 842.

rectly contrary to a consistent stream of opinions of this

Court which have not only generally rejected a rule of

automatic reversal for Confrontation Clause errors, but

which have utilized the same “cumulative evidence” ra-

tionale to determine harmlessness as the prosecution

urged in the Delaware court.?2

Eighty-five years ago, during the era of automatic

reversal for constitutional violations, this Court, in Motes

v. United States, 178 U.S. 458 (1900), ruled that the

Confrontation Clause had been violated when a highly

incriminatory pre-trial statement made by a missing, es-

caped co-conspirator had been admitted at trial. Although

as a result of the error, the jury had heard “testimony” of

a witness totally immune from trial cross-examination,

this Court found the error harmless in the case of one

defendant because the co-conspirator’s recitation merely

duplicated his own trial testimony in which he admitted

his participation in the crime. To reverse for a Confron-

tation Clause error in those circumstances “would be tri-

fling with the administration of the criminal law.” 178

U.S. at 475.

Chapman did not alter the principles announced in

Motes. Thus, in Harrington v. California, 395 U.S. 250

(1969), the jury had heard the pre-trial statements of two

non-testifying co-defendants implicating l.arrington by

placing him at the scene of the robbery. While finding

that the admission of the statements at a joint trial was

error under the Confrontation Clause, this Court affirmed

the conviction, refusing to adopt for such errors “the mi-

nority view in Chapman that a departure from constitu-

tional procedures should result in automatic reversal.”

22. The cases described below were cited to the Delaware Su-

preme Court. Brief for Appellee (State of Delaware) at 13-16, Van

Arsdall v. State, No. 346, 1982 (Del. Nov. 19, 1984). The opinion

below does not mention any of them. The “cumulative evidence”

approach to a finding of harmless error is extensively analyzed in

Field, Assessing the Harmlessness of Federal Constitutional Error

— A Process in Need of A Rationale, 125 U. Pa. L. Rey. 15 (1976).

395 U.S. at 254 (citation omitted). Instead, after review-

ing all of the evidence presented at trial, the Court con-

cluded that the error could not have contributed to the

verdict, because the co-defendants’ statements merely

echoed what Harrington had admitted in his own unchal-

lenged pre-trial statement which had also been presented

to the jury. This approach to Confrontation Clause errors

has been consistently re-affirmed. See Brown v. United

States, 411 U.S. 223, 231 (1973) (“The testimony erro-

neously admitted was merely cumulative of other over-

whelming and largely uncontroverted evidence properly

before the jury.”); Schneble v. Florida, 405 U.S. 427, 431

(1972) (the “inadmissable statements. . . at most tended

to corroborate certain details of petitioner’s comprehen-

sive confession.”). Accord Parker v. Randolph, 442 U.S.

62, 77, 80-81 (1979) (Blackmun, J., concurring).2*

The decision below simply ignores the command of

Harrington, including its common sense view of when

unimpeached evidence may be said not to have contrib-

uted to the jury’s verdict.24 Ironically, in so doing, the

23. Indeed, in the context of violations of other constitutional

provisions which may support a rule of automatic reversal, an ex-

ception has been recognized where the error relates to evidence, the

cruth of which the defendant has conceded and thus removed from

dispute. Thus, the use of a statement taken in violation of the right

of counsel, Chapman, 386 U.S at 23 n. 8, may be harmless where

the facts related have been exposed to the jury through other unchal-

lenged confessions. Milton v. Wainwright, 407 U.S. 371, 373-74

(1972). Similarly, an erroneous presumptive jury instruction may be

harmless if the defendant has conceded the existence of the element

to which it relates. Connecticut v. Johnson, 460 U.S. 73, 87 (1983)

(plurality opinion).

24. The Confrontation Clause violations in those cases involved

error under Bruton v. United States, 391 U.S. 123 (1968). Yet, while

Bruton involved the use of a non-testifying co-defendant’s state-

ment, the Confrontation Clause error is no different than a restric-

tion on cross-examination. In both cases, the witness is not available

for cross-examination. In Bruton cases, the witness is unavailable

Delaware court creates a topsy-turvy approach to revers-

als for Confrontation Clause violations. Errors in admit-

ting testimony, totally immune from cross-examination,

may be found harmless under Harrington. However, er-

rors that occur when the live witness has been subjected

to some cross-examination require reversal.

The lower courts are in disarray concerning the role

of harmless error where cross-examination has been re-

stricted. If a rule of automatic reversal, as expansively

defined by the Delaware court, continues to be seen as

the remedy compelled by the federal constitution, the

lower appellate courts will quickly retreat to once again

becoming “impregnable citadels of technicality,” “una-

ble to conserve |their] resources ... by cleans|ing] the

judicial process of prejudicial error without becoming

mired in harmless error.” United States v. Hasting, ——

U.S. , 103 S.Ct. 1974, 1980-81 (1983) (quoting R.

Traynor, the Riddle of Harmless Error, 14, 81 (1970)).

The decision of the Delaware Supreme Court, which sim-

ply articulates a rule of automatic reversal, presents the

clear opportunity for this Court to hold that the Confron-

tation Clause does not require the states to ignore the

important jurisprudential and societal policies upon

which the harmlss error rule is based.25

NOTES (Continued)

due to the prosecutor’s and judge’s choices not to sever; in the latter

cases, the witness is unavailable because of the prosecutor’s objec-

tion and the trial judge’s evidentiary ruling.

25. Even in situations where the prosecutor has offered to the

jury testimony he knew or should have known was perjured, this

Court has declined to hold that a new trial is automatically required.

Giglio v. United States, 405 U.S. 150, 154 (1972). Thus, notwith-

standing the egregious nature of the prosecutor’s conduct and its

attendant effect on the fact-finding function of trial, this Court em-

ploys what is essentially a harmless error test. The same test is surely

applicable when the prosecutor's conduct is merely the lodging of an

evidentiary objection.

3. This Petition Should be Held Pending a Decision in

United States v. Bagley, No. 84-48

The State of Delaware suggests that it may be ap-

propriate to hold this petition pending this Court’s deci-

sion in United States v. Bagley, cert. granted, _ US.

___,105 S.Ct. 427 (1984) (No.84-48).

Although Bagley involves the prosecutor’s failure to

furnish to the defendant evidence which he may have

been able to use to impeach several government wit-

nesses, the Court of Appeals utilized, in part, the Ninth

Circuit’s rule of automatic reversal for Confrontation

Clause errors to overturn the conviction, despite a con-

clusion by the trial judge that the underclosed impeach-

ment evidence would have not affected the verdict.

Bagley v. Lumpkin, 719 F.2d 1462, 1464 (9th Cir. 1983).

The Solicitor General in Bagley advances the same

position as that urged by the State of Delaware in this

case: that erroneous restrictions on the defendant's abil-

ity to cross-examine witnesses does not automatically re-

quire reversal. Brief for the United States at 14-17 (filed

January, 1985).

Conclusion

For the above reasons, this Court should grant this

petition for certiorari or summarily reverse with instruc-

tions for the Delaware Supreme Court to determine if the

Confrontation Clause error was harmless. Alternatively,

this petition should be held pending a decision in United

States v. Bagley, No. 84-48.

February, 1985 Respectfully submitted,

Gary A. Myers

Counsel of Record

Charles M. Oberly, III

Attorney General of the

State of Delaware

John A. Parkins, Jr.

Chief, Appeals Division

Loren C. Meyers

Deputy Attorney General

DELAWARE DEPARTMENT

OF JUSTICE

1. S. Race Street

P.O. Box 373

Georgetown, DE 19947

(302) 856-5353

APPENDIX

APPENDIX A

IN THE SUPREME COURT OF

THE STATE OF DELAWARE

ROBERT E. VAN ARSDALL,

Defendant Below,

Appellant,

V. No. 346, 1982

STATE OF DELAWARE,

Appellee,

and

GAN «i TT COMPANY, INC.,

)

Plaintiff Below, )

)

Intervening )

Appellee. )

Submitted: September 10, 1984

Decided: November 19, 1984

Before McNEILLY, MOORE, and CHRISTIE, Justices.

Upon appeal from Superior Court. Reversed and re-

manded for a new trial.

William N. Nicholas (argued), Dover, and John R.

Williams (argued) of Prickett, Jones, Elliott, Kristol &

Schnee, Dover, for Appellant.

Gary A. Myers (argued), Deputy Attorney General,

Georgetown, for Appellee.

A-1

A-2

Louis J. Finger, of Richards, Layton & Finger,

Wilmington, for Intervenor.

CHRISTIE, Justice:

This case involves an appeal from a conviction in the

Superior Court, Kent County, of murder first degree and

possession of a deadly weapon during the commission of

a felony.

The defendant, Robert Van Arsdall, was accused of

murdering Doris Epps in a friend’s apartment, shortly

after the conclusion of an all day New Year's Eve party

on December 31, 1981. The party, which lasted from ap-

proximately 11:00 a.m. to 12:00 midnight, took place in

and between two adjacent apartments, one of which was

occupied by Daniel Pregent and the other by Robert

Fleetwood. It is apparent from the testimony given at trial

that various persons had attended the party on and off

over the course of the day, and that the defendant was

one of those transient guests. The defendant testified that

he had stopped in at the party for two brief periods in the

late afternoon and early evening; he then returned to the

party for a third time at about 11:30 p.m.

The evidence indicated that as the evening wore on,

the party lost much of its jovial spirit. Pregent had an

altercation with a female guest at one point and had to be

restrained. The victim of the homicide, Doris Epps, had

passed out by 10:30 p.m., perhaps as a result of excessive

use of alcohol. She had been placed in a convertible sofa

bed in the living room/bedroom area of Pregent’s apart-

ment. A short time later, a second altercation of some

kind occurred, this time in Fleetwood’s apartment, and

this prompted Fleetwood to “close” the party in his apart-

ment to everyone except his two friends, Alice Meinier

and Mark Mood.

When the defendant returned to the party for the

third time, he entered Pregent’s apartment through a

back entrance shortly after 11:30 p.m. At that time, only

Pregent and the unconscious Doris Epps were present.

A-3

Fleetwood testified that shortly before going to sleep in

his own apartment, he walked across the hall and looked

into Pregent’s apartment where he had seen the defend-

ant sitting on the sofa bed next to Pregent’s feet. Meinier

testified that she, too, walked across the hallway in order

to find out what time it was by looking at Pregent’s clock,

which was located in his kitchen. She stated that when

she did this it was 11:53 p.m., and that she saw nothing

unusual in the dark living room area of the apartment.

Meinier went on to testify that about one hour later, the

defendant came to Fleetwood’s apartment with blood on

his hands and shirt, holding a long, bloody knife.

The police were called and when they arrived a few

minutes later, they found Epps’ body lying in a pool of

blood on the kitchen floor of Pregent’s apartment. Preg-

ent was asleep on the blood-splattered sofa bed in his

darkened living room.

Both defendant and Pregent were subsequently ar-

rested and charged with murder first degree. Defendant

was tried first. The State relied on the circumstantial ev-

idence outlined above. The defendant took the stand and

denied that he took any part in the killing. He testified

that he saw Pregent stabbing the victim. He was never-

theless found guilty by the jury. The State did not seek

the imposition of capital punishment. Pregent did not tes-

tify at Van Arsdall’s trial. Pregent was tried later and was

found not guilty.

On appeal, the defendant makes many arguments.

We find reversible error in one of the trial court’s impor-

tant rulings and, therefore, reverse the defendant's con-

viction and remand the case for a new trial.

The defendant argues that it was error for the trial

court to limit his cross-examination of three prosecution

witnesses. In the first instance, the defendant contends

that the trial court erred by ruling that he could not ques-

A-4

tion Robert Fleetwood about Fleetwood’s prior arrest and

about a previous occasion on which Fleetwood had been

questioned by a detective. The defendant contends that

this ruling denied him the opportunity to expose

Fleetwood’s possible bias in testifying for the State and

also deprived defendant of his right to confront the wit-

nesses against him. U.S. Const. amend. VI: Del. Const.

art. |, §7.' The defendant argues that the language this

Court employed in Weber v. State, Del. Supr., 457 A.2d

674 (1983), makes it clear that we must reverse his con-

viction. We agree.

It is well established that the bias of a witness is sub-

ject to exploration at trial and is “always relevant as dis-

crediting the witness and affecting the weight of his tes-

timony.” Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct.

1105, 1110, 39 L.Ed.2d 347 (1974) [quoting 3A J.

Wigmore, Evidence §940, at 775 (Chadbourn rev.ed.

1970)|}; Weber, 457 A2d at 680. Moreover.

“cross-examination on bias is an essential element of the

constitutional right of confrontation.” Wintjen v. State,

Del. Supr., 398 A.2d 780, 782 (1979). In Weber, we ac-

knowledged the accused's right to a “certain threshold

level of cross-examination,” and observed that the pre-

sumption in favor of cross-examination requires the trial

judge to permit inquiry into “any acts, relationships, or

motives reasonably likely to create bias.” Weber, 457 A.2d

at 680, 682.

The trial court may not foreclose a legitimate inquiry

into a witness’ credibility before the defendant’s Sixth

1. The ").S. and Delaware Constitutions provide in pertinent

part:

“In all criminal prosecutions, the accused shall enjoy the

right. . . to be confronted with the witnesses against him . -s

U.S. Const. amend VI.

and

“In all criminal prosecutions, the accused hath a right . . . to

meet the witnesses in their examination face to face... .” Del.

Const. art. I, §7.

A-5

Amendment confrontation right has been adequately

met. See Weber, 457 A.2d at 681-682; United States v.

Meyer, 556 F.2d 245, 250 (5th Cir. 1979). In Weber this

Court set forth a two-part test for determining whether

limitations imposed by the trial judge on a relevant line

of cross-examination violate the accused’s right of con-

frontation. Specifically, we said that we would look to the

cross-examination permitted to ascertain (1) if the jury

were exposed to facts sufficient for it to draw inferences

as to the reliability of the witness and (2) if defense coun-

sel had an adequate record from which to argue why the

witness might have been biased. Weber, 457 A.2d at 682.

See, United States v. Summers, 598 F.2d 450, 461 (Sth

Cir. 1979). Clearly, the trial court’s decision to prohibit

all questioning concerning the dismissal of charges

against Fleetwood for being drunk on the highway pre-

vented the jury from considering facts from which it could

have drawn inferences about Fleetwood’s testimonial re-

liability. Under the circumstances, the defense had aright

to introduce such testimony.

The State correctly points out that “some topics will

be of marginal relevance, and that the trial court in such

situations may properly prohibit cross-examination or al-

low only limited quest‘~ning.” Weber, 457 A.2d at 682.

We note, moreover, that under some circumstances a

judge may exclude evidence in instances such as these

even though bias or prejudice might have been disclosed.

Weber, 457 A.2d at 682. See Davis v. Alaska, 415 U.S.

308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The State

contends that the defendant’s proposed lines of inquiry

were only marginally relevant, and that the trial court

properly ruled against such cross-examination. However,

under the circumstances present in this case, we cannot

agree. The question of bias was an important issue be-

fore the court and the excluded evidence was central to

A-6

that issue.2 We conclude that the trial judge abused his

discretion when he ruled that defendant could make no

inquiry into Fleetwood’s possible understanding that

charges pending against him were dismissed in exchange

for his cooperation with the State.*

The State next argues, however, that even if the de-

fendant was deprived of his confrontation right, such er-

ror was harmless because Fleetwood’s basic testimony

was cumulative in nature and unimportant. We noted in

Weber that “the standards used to determine if there is a

violation of the confrontation clause in the first instance

are similar, if not identical, to those used in deciding if

the error was harmless.” Weber, 457 A.2d at 683. In Reed

v. United States, D.C. App., 452 A.2d 1173, 1176-77

(1982), the court stated a test consistent with Davis v.

Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347

(1974) and with our ruling in Weber for determining

whether a violation of the confrontation clause is

harmless:

2. On voir dire, Fleetwood revealed the following:

Q |Mr. Reed]: “What was your understanding of why the

charge was dropped?”

A |Fleetwood]:“Well, I did understand that I did feel that you

wanted me to make sure that I knew what I was talking about,

and I do feel that you wanted to make sure I had my story

together before coming in here. So that is why I did feel that

it was dropped.”

3. Although we need not and do not consider whether the trial

court erred in preventing the defendant from cross-examining

Fleetwood about a previous occasion on which Fleetwood had been

questioned by a detective in a separate murder investigation, we

note that the presumption in favor of cross-examination requires

that an accused be given some latitude to search for agreements or

understandings, even where no actual or communicated deal exists.

See, Greene v. Wainwright, 634 F.2d 272 (5th Cir. 1981); United

States v. Mayer, 556 F.2d 245 (5th Cir. 1976); Burr v. Sullivan, 618

F.2d 583 (9th Cir. 1980).

A-7

Where the record reflects a curtailment of a requested

line of bias cross-examination in limine, so that the

jury is unable to perform its fact-finding function in

inferring bias from the testimony as a whole, we will

assess cross-examination errors by a per se error

standard. If, however, the trial court has permitted

some cross-examination so that the jury has suffi-

cient information from which to infer bias (should it

so choose), this Court will evaluate error by applica-

tion of the harmless constitutional error test of Chap-

man v. California, supra |386 U.S. 18,87 S.Ct. 824,

17 L.Ed.2d 705 (1967)|. To hold harmless such error

in curtailing constitutionally protected cross-examin-

ation, it must be clear beyond a reasonable doubt

“ .. that the defendant would not have been con-

victed without the witness’ testimony... .” [Citing

Springer v. United States, D.C. App., 388 A.2d 846,

856 (1978)].

We hold that under the circumstances of this case,

where the defendant was subjected to a blanket prohi-

bition against exploring potential bias through cross-

examination, the trial court committed a per se error. Con-

sequently, the actual prejudicial impact of such an error

is not examined and reversal is mandated. See Webb v.

United States, D.C. App., 388 A.2d 857, 858 (1978).

The defendant also argues that it was error for the

trial court to limit his cross-examination of Alice Meinier.

He contends that his right to cross-examination encom-

passes an absolute right to question a witness about his

or her address. We find his argument to be without merit.

It is clear for the record that the defendant sought to

elicit information not about Meinier’s place of residence,

but rather information about with whom she had been

residing. Cf. United States v. Harris, 501 F.2d 1, 9 (9th

Cir. 1974) (requiring cross-examinaito. about an ad-

dress). The trial court did not err in ruling against such

A-8

questioning since it apparently thought that counsel’s

main purpose was to subject the witness to harassment

or humiliation. United States v. Harris, 501 F.2d at 9.

Finally, we find no error in the trial court’s decision

to limit the defendant’s cross-examination of detective

Bowers. The defendant claims that the State, in its direct

examination, implied that a thorough police investiga-

tion at the murder scene led to defendant’s arrest. De-

fendant now argues that the State, having raised the is-

sue, opened itself to cross-examination on this point, and

that the trial court abused its discretion in ruling that

defendant could not question the detective on this mat-

ter. We do not agree. Assuming that the defendant’s in-

quiry was directed at the issue of the thoroughness of the

police investigation, the court could have reasonably con-

cluded that such questioning was collateral because Alice

Meinier’s statement to the police and the blocd found on

the defendant’s clothing justified the arrest.

The defendant next raises several arguments which

address the propriety of the trial court’s evidentiary rul-

ings. Although none of the alleged errors amounts to re-

versible error, we discuss some of the issues presented

because there will be a new trial.

Initially, defendant contends that the trial court

abused its discretion in admitting various exhibits into

evidence. The defendant maintains that the admission of

the victim’s blood-stained clothing and, at least, one

“gruesome” photograph of the victim exposed the jury to

evidence which was highly prejudicial and inflamma-

tory. Defendant insists that any probative value of such

evidence was outweighed by the prejudice involved.

D.R.E. 403. In addition, the defendant claims that the

admission of several articles of his clothing and numer-

ous photographs of the victim were unnecessary and cu-

A-9

mulative. We hold that these arguments are without

merit.

The trial court has wide discretion in admitting into

evidence photographs of injuries to a victim. Dickens v.

State, Del. Supr., 437 A.2d 159, 162 (1981). The court’s

discretion in admitting a victim’s clothing is equally

broad. See Longoria v. State, Del. Supr., 168 A.2d 695,

703, cert. denied, 368 U.S. 10(1961). Cf. Dutton v. State,

Del. Supr., 452 A.2d 127 (1982) (victim’s remains not

necessarily excludable. ) The trial court ruled that the ma-

terial and probative value of the evidence outweighed any

prejudicial effect it might have. This Court cannot say

that the trial court abused its discretion.

Similarly, the defendant’s claim that the introduc-

tion of his clothing was irrelevant is specious. See, Dickens

v. State, 437 A.2d at 163.

Finally, it must be remembered that D.R.E. 403 au-

thorizes the trial judge to exclude only the needless pres-

entation of cumulative evidence, and the court had wide

discretion to determine whether the evidence in ques-

tion was needlessly cumulative.

The defendant also asserts that it was error for the

trial court to permit the prosecution to place into evi-

dence various articles which the defendant wished to in-

troduce as defense exhibits. We find no merit to

defendant’s argument.

The trial court has broad authority in determining

the mode and order of presenting evidence, and its choice

can be overturned only if it infringes on a constitutional

right or constitutes an abuse of discretion. D.R.E. 611(a);

Geders v. United States, 425 U.S. 80, 86, 96 S.Ct. 1330,

1334, 47 L.Ed.2d 592 (1976). It was not an abuse of dis-

cretion to refuse to allow the defendant to place exhibits

into evidence during the prosecution’s case-in-chief. See

State v. Washington, La. Supr., 292 So.2d 234, 237-38

(1974).

The defendant next argues that the trial court abused

its discretion in admitting into evidence transcripts of tape

A-10

recordings. The defense maintains that since the record-

ings themselves were the “best evidence”, the additional

admission of the transcripts of the recordings violated

the“best evidence” rule. D.R.E. 1001-1002. The defend-

ant relies on dicta contained in the case of Bonicelli v.

State, Okla. Ct. App., 339 P.2d 1063, 1065 (1959). How-

ever, most courts which have addressed this issue have

rejected the position the defendant here takes, especially

where, as here, the defense counsel “agreed” that the

transcripts were fair and accurate reports of what was

said. See United States v. Turner, 528 F.2d 143, 167-68

(9th Cir.), cert. denied, 423 U.S. 996 (1975); United

States v. Carson, 464 F.2d 424, 436-37 (2d Cir. 1972).

We reject defendant’s contention.

III

Defendant contends that the trial court’s failure to

sequester the chief investigating officer, or alternatively,

to require the officer to testify first, was an abuse of dis-

cretion, since the officer had a chance to hear the testi-

mony of other witnesses — including defense witnesses

— and he had an opportunity to tailor or fabricate his

subsequent testimony accordingly.

However, it is clear in Delaware that sequestration is

discretionary with the trial judge, Holmes v. State, Del.

Supr., 422 A.2d 338, 340 (1980), and that it is often

deemed proper to exempt the chief investigating officer

from a sequestration order. Grace v. State, Del. Supr.,

314 A.2d 169, 170 (1973). It follows that it is also within

a court’s discretion to refuse to compel the officer to tes-

tify first and to allow the prosecution to present its evi-

dence in chronological fashion. See United States v.

Butera, 677 F.2d 1376, 1380-81 (11th Cir. 1982), cert.

denied, _US.___, 103 S.Ct. 735 (1983).

A-11

The defendant argues that the trial court erred in

permitting Dr. Lee to give an expert opinion when his

testimony appeared to be speculative in nature. The

defendant’s position is that Dr. Lee could not have given

an informed opinion as to the movement of the victim's

body because he lacked knowledge of a buttock wound,

and that the doctor’s use of words, such as “could”, “pos-

sibly”, and “maybe” indicate that he was engaged in spec-

ulation. We find defendant’s argument to be without

merit. We note that on cross-examination, the doctor tes-

tified that the conclusions he had reached concerning

the movement of the victim’s body would not have

changed had he been aware of the buttock wound. We

also conclude that the doctor’s choice of words did not

indicate that his conclusions were based on speculation.

See Air Mod Corp. v. Newton, Del. Supr., 215 A.2d 434,

438 (1965).

The defendant next argues that the trial court abused

its discretion in refusing to consider an affidavit he pre-

sented in a pretrial suppression hearing. This argument

is without merit. The court did not abuse its discretion in

refusing to consider the affidavit in this case since the

defendant refused to be cross-examined on the contents

of that affidavit.

Defendant contends that the trial judge’s instruc-

tions to the jury were erroneous in several respects.

Defendant argues that the trial court committed re-

versible error in giving the jury an accomplice instruc-

tion which was based on the possibility that the offense

may have been committed by Daniel Pregent, and that

the defendant may have been his accomplice. Defendant

A-12

insists that there was insufficient evidence to warrant

such a charge. We do not find the instruction to be er-

roneous. However, if there was error, it was clearly

harmiess error. Barnes v. State, Del. Supr., 352 A.2d

409, 410-411 (1976).

The defendant argues that the trial court erred in

instructing the jury to disregard defense counsel’s com-

ment inclosing that “circumstantia: evidence is the

weakest form of evidence.” The law, however, assigns no

lesser degree of probity to circumstantial evidence.

Holden v. State, Del. Supr., 305 A.2d 320, 322 (1973).

Hence, the trial court was correct when it instructed the

jury to disregard defense counsel’s erroneous statement.

The defendant says that the court’s charge to the

jury lacked sufficient factual detail. In the absence of

any indication by the defendant suggesting the omission

of specific and necessary factual details, the general in-

struction which traced the statutory language of the

criminal statute is deemed to be adequate to inform the

jury of the factual issues to be resolved. Daniel v. McAl-

lister, 631 F.2d 1256, 1260 (5th Cir. 1980), cert. denied.

452 U.S. 907 (1981). We find no error in what the trial

court did in this respect.

Vil

The defendant argues that the trial judge erred in

acting as one of the drivers who took the jurors to their

overnight accommodations outside defendant’s presence

and outside the presence of legal counsel. The defendant

claims that this ex parte contact infringed upon the con-

stitutional commands of “presence”, assistance of coun-

sel, and jury impartiality. We conclude that the limited

personal contact between judge and jury should have

been avoided but it was harmless beyond a reasonable

doubt, as that phrase is used in Chapman v. California,

386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

A-13

The defendant goes on to assert that the trial court's

“limited voir dire” of the jurors the next morning did not

meet the requirements of the type of post-trial hearing

which appears tu have been mandated by the United

States Supreme Court in Rushen v. Spain, U.S.

, 104 S.Ct. 453 (1983). (The Rushen case involved

an ex parte communication between the trial judge and

a juror as to an incorrect answer the juror had given to

a voir dire question. ) It is clear, however, that a post-trial

hearing is not required in all instances. Although the Su-

preme Court found that a post-trial hearing was appro-

priate in that case, the court went on to state that “|t|he

adequacy of any remedy is determined solely by its ability

to mitigate constitutional error, if any, that has occurred.”

Rushen, 104 S.Ct. at 456.

In the case at bar the trial judge simply drove some

of the jurors to their lodgings. The next day, at the

defendant’s request, the jurors were questioned about

their contact with the judge. The jurors reported that

they had had no communication with the judge concern-

ing the case. Under the circumstances, the voir dire was

adequate.

The court below committed no reversible error in driv-

ing the jury to its lodgings or in its later voir dire. How-

ever, such contact with jurors should be avoided in the

future.

Vill

The defendant next makes a series of arguments ob-

jecting to the jury selection process. The defendant’s ba-

sic position is that the use of voter registration lists as the

sole source for the selection of potential jurors was in-

adequate to assure a representation from a fair cross sec-

tion of the community. 10 Del.C. § 4501; U.S. Const.

amend. VI; Del. Const. art I, § 7.4 Ultimately, the de-

4. 10 Del.C. § 4501 provides in pertinent part:

“It is the policy of the State that all litigants in state courts

A-14

fendant attacks three statutory provisions in support of

his contention.

(a) The defendant initially asserts that the exclusive

use of voter registration lists is improper in Kent County

because of the large number of individuals employed at

Dover Air Force Base who may be registered to vote in

other states, and thus, would not be called to serve on a

Kent County jury. In effect, the defendant also chal-

lenges 10 Del.C. § 4504(b)(6)(i),5 which exempts mili-

tary personnel from jury service. The defendant argues

that exempting the population at the military facility pre-

vents the venire from having a fair cross section of the

community. We find the defendant's argument

unpersuasive.

In Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct.

664, 668, 58 L.Ed.2d 579 (1979) the United States Su-

preme Court held that:

“(I]n order to establish a prima facie violation of the

fair cross section requirement, the defendant must

show (1) that the group alleged to be excluded is a

‘distinctive’ group in the community; (2) that the rep-

resentation of this group in the venires from which

juries are selected is not fair and reasonable in rela-

tion to the number of such persons in the commu-

NOTES (Continued )

. entitled to trial by jury shall have the right to. . . juries selected

at random from a fair cross section of the county wherein the

court convenes.”

We find that the policy of § 4501 is embodied in the due process

requirement of the U.S. and Delaware Constitutions. Thus, the

defendant's failure to comply with the procedural requirements of

10 Del.C. § 4508(a), (d) does not pre-empt his right to challenge any

provision dealing with jury selection. See United States v. Hawkins,

566 F.2d 1006, 1014 (Sth Cir.), cert. denied, 439 U.S. 848 (1978).

5. 10 Del.C. § 4504(b)(6)(i) states that the jury selection plan:

“ . . shall provide for exemptions of ... (i) Members in

active service in the Armed Forces of the United States... .”

A-15

nity; and (3) that the under-representation is due to

a systematic exclusion of the group in the jury se-

lection process.”

Moreover, to satisfy the “distinctive” requirement, a

particular group must have a unique outlook or “per-

spective on human events” not shared by other segments

of the community, see Taylor v. Louisiana, 419 U.S. 522,

532, n.12,95 S.Ct. 692, 698, n.12, 42 L.Ed.2d 690 (1975),

and this distinctive requirement must exist as to a sub-

stantial number of people. Duren, 439 U.S. at 370. Thus,

the statutory exemption for military personnel would vi-

olate the fair cross-section requirement only if the de-

fendant can show that those in the military service who

have not registered to vote in Delaware have a unique

perspective not shared by other members of the commu-

nity. See Walker v. State, Alaska Supr., 652 P.2d 88, 92-93

(1982); Taylor, 419 U.S. at 534. Defendant has not met

this burden.

We also note that the Supreme Court has upheld “ex-

emptions from jury service to individuals . . . engaged in

particular occupations the uninterrupted performance of

which is critical to the community’s welfare.” Taylor, 419

U.S. at 534. It seen:s clear that occupations related to

national defense are critical to the community's welfare.

See 28 U.S.C. § 1863(b)(6)(i),° which is the federal coun-

terpart to 10 Del.C. § 4504(b)(6)(i).

(b) The defendant next makes two separate, but

closely related challenges. He argues that statutory dis-

qualification from jury service of persons residing in the

county for less than one year, 10 Del.C. § 4506(b)(1),

and persons accused or convicted of serious crimes, 10

Del. C. § 4506(b)(5), deprives him of due process and

equal protection of the laws. U.S. Const. amends. V, VI,

6. 28U.S.C. § 1863(b)(6)(i) (Supp 1984) reads in pertinent part:

“The [jury selection] plan shall provide for the exemption of

the following persons: (1) members in active service of the Armed

Forces of the United States... .”

A-16

XIV. Del. Const. art. I, § 7.7 We will address each of the

defendant's claims:

Due Process: Most courts facing challenges of this

type of juror residency requirement have held that newer

residents are not a “distinctive” or “cognizable” class.

United States v. Maskeny, 609 F.2d 183, 192 (Sth Cir. ),

cert. denied, 447 U.S. 921 (1980); United States v. Perry,

480 F.2d 147, 148 (5th Cir. 1973). Indeed, such “group's

membership — cutting across economic, social, religious,

and geographic lines — changes day to day, creating lack

of real commonality of interest among the newly mi-

grated.” Adams v. Superior Court of San Diego County,

Cal. Supr., 524 P.2d 375, 378 (1974). The defendant, in

urging us to adopt Justice Mosk’s dissenting opinion in

Adams, argues that newer residents are an identifiable

and ascertainable group, and are therefore, cognizable.

See Adams, 524 P.2d at 383 (Mosk, J., dissenting).

We cannot accept the defendant’s position. Even if

we assume that newer residents are an identifiable and

ascertainable group, evidence of such group’s “distinc-

tiveness” is lacking. The United States Supreme Court,

in recent decisions, has found that a distinct group in the

community possesses a unique outlook or “perspective

on human events.” See Taylor v. Louisiana, 419 U.S. at

532, n.12. The defendant has not shown that newer res-

7. The relevant provisions provide in pertinent part:

“_. [that] any person |is| qualified to serve on . . . juries in

Superior Court unless he:

(1). . has [not] resided for a period of one year within the

countv...or...

(5) Has a charge pending against him for the commission

of, or has been convicted in a state or federal court of record of

a crime punishable by imprisonment for more than 1 year... .”

10 Del.C. § 4506(b)(1), (5).

and

“No State shall make or enforce any law which . . . den|ies]

to any person within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV, § 1.

A-17

idents possess a common viewpoint not shared by other

segments of the community. Furthermore, he has failed

to establish that newer residents exist in such substan-

tial numbers that, assuming a common perspective, the

remaining pool of potential jurors would be unrepresenta-

tive of the community. See Taylor, 419 U.S. at 534; Duren

vu. Missouri, 439 U.S. at 370.

For similar reasons we find that the defendant has

failed to demonstrate that exclusion of the class of per-

sons then accused of, or previously convinced of serious

crimes, limits the venire as a fair cross section of the com-

munity. Although it is true that members of this group

share the common experience of being or having been in

conflict with the authorities, the defendant has not shown

that the perspective gained from such an experience is

absent in other segments of the community, see, Rubio

v. Superior Court of San Joaquin Cty., Cal. Supr., 593

P.2d 595, 598-99 (1979), or alternatively that exclusion

of such group would pose |a] substantial threat that the

remaining pool of jurors would not be representative of

the community.” Taylor, 419 U.S. at 534.

We hold that the one-year residency requirement of

§4506(b)(1) and the exclusion from jury service of per-

sons who have serious criminal charges then pending

against them or have been convicted of serious crimes

under §4506(b)(5), do not deprive the defendant of due

process of law under the United States and Delaware

Constitutions. U.S. Const. amends, VI, XIV; Del. Const.

art I, §7.

Equal Protection: The defendant also claims that the

provisions of §4506(b)(1) and (5) deprive him of equal

protection of the laws. U.S. Const. amend. XIV. In the

first instance, we find that the defendant has no standing

to challenge the residency requirement under the equal

protection clause. It is clear from the record that the de-

fendant is actually asserting a claim on behalf of the newer

resident class. Because he is not a member of the ex-

cluded class, the defendant has no standing to make an

A-18

equal protection claim, unless he can show that he has

been personally injured by the exclusion of newer resi-

dents from the jury list. Peters v. Kiff, 407 U.S. 493, 92

S.Ct. 2163, 32 L.Ed.2d 83 (1972). Since the defendant's

“injury” is predicated on his claim that the venire was

not composed of a fair cross section of the community,

our resolution of that preliminary issue disposes of any

equal protection claim.

The defendant's challenge to the exclusion of per-

sons presently accused or previously convicted of serious

crimes presents a different situation, since this defend-

ant is a member of this arguably cognizable class. We

conclude, however, that the exclusion of such persons

from jury service does not deprive the defendant of equal

protection of the law.

The defendant does not claim that the classification

in question is “suspect” (as such classifications are pri-

marily used in cases involving unconstitutional discrim-

ination), and the defendant concedes that jury service is

not a “fundamental right.” It follows that the exclusion

does not violate equal protection if it bears any rational

relationship to some legitimate State objective. Lowicki

uv. Unemployment Insurance Board, Del. Supr., 460 A.2d

535, 538-39 (1983). See Rubio v. Superior Court of San

Joaquin Cty., 593 P.2d at 600. The defendant argues that

the State could have no legitimate interest in excluding

persons accused of criminal acts who remain presump-

tively innocent, and that §4506(b)(5) is unconstitution-

ally broad. We disagree. The State has an obvious and

compelling interest in preserving the right to a fair trial

by an impartial jury. The legislature could reasonably de-

termine that persons presently accused or previously con-

victed of serious crimes, as present or past adversaries of

“the system,” may be biased in favor of a criminal de-

fendant, whom is seen as a fellow victim of the system.

See Rubio, 593 P.2d at 600. The State could also reason-

ably conclude that jury service would interfere with an

accused’s preparation of his own defense, and conversely,

A-19

that an accused’s preoccupation with his own possible

trial would interfere with his duties as a juror.

The defendant next claims that the trial court did not

take adequate steps to assure the jury’s impartiality. He

contends that the trial court abused its discretion in re-

jecting five requested jury voir dire questions, which dealt

with racial bias, and in failing to provide reasons for its

denial of these and seventy-three other proposed ques-

tions.®

It is well established that the trial court’s discretion

on voir dire is restricted only by essential demands of

fairness. Hooks v. State, Del. Supr., 416 A.2d 189, 195

(1980); Shields v. State, Del. Supr., 374 A.2d 816 (1977),

cert. denied, 434 U.S. 893, 98 S.Ct. 271, 54 L.Ed.2d 180

(1977).

A trial judge is required to inquire into the issue of

racial bias when requested to do so, and he has a duty to

present to the prospective jurors an appropriate question

or questions, submitted by defense counsel, if such ques-

tion or questions are designed to reveal such bias. Hooks:

416 A.2d at195-96. See Preston v. State, Del.Supr., 306

A.2d 712, 716 (1973). We conclude, however, that the

questions here proposed dealing with racial bias were in-

8. The proposed questions relating to racial bias read as follows:

69. Do you have any personal or professional relationships

with blacks?

70. Do you think that black people have the same values and

standards as other members of society?

71. Do you feel that there is any difference between black

people and white people?

72. Do you think that black people have a more difficult time

getting along in contemporary American society?

73. Have you ever had any dealings or experiences with black

people that might make it more difficult for you to sit in

impartial judgment on this case knowing that the alleged

victimwas black?

A-20

appropriate, since they did not address the possibility of

racial prejudice against the defendant, who is a white

person, but instead addressed the possibility of prejudice

against the black victim.

We find no error in the failure to give the other voir

dire questions which were requested.

The defendant also indicates that the voir dire was

procedurally inadequate to determine the effect of pre-

trial publicity upon potential jury members. The

defendant’s claim is clearly without merit. The trial

court’s procedure of initially asking the venire in general

whether they had heard or read anything about the case,

and then questioning individually those who responded

affirmatively, was proper and reasonably calculated to dis-

cover bias. See United States v. Chagra, 669 F.2d 241,

253-54 (5th Cir.), cert. denied, _§-; U.S. ___, 103 S.Ct.

102 (1982); United States v. Barton, 647 F.2d 224, 230

(2d Cir. 1981).

For corresponding reasons we find that the meas-

ures taken to assure the jury’s isolation from publicity

during the trial were adequate. Under the guidelines set

forth in Smith v. State, Del. Supr., 317 A.2d 20, 23 (1974),

the judge admonished the jurors not to read media ac-

counts at the end of each trial day, and inquired of the

jurors, at the beginning of each subsequent day, whether

they had heard or read anything about the case. No juror

ever responded affirmatively. We reject the defendant’s

argument that the trial judge, should have admonished

the media to adhere strictly to the Bar-Bench Press Dec-

laration of Delaware.

The defendant next argues that the trial court erred

in denyii.g defendant’s motion for funds to employ a pri-

vate inve: .igator. The defendant maintains that a par-

ticular expert-investigator was needed to counteract the

State’s forensic evidence and to perform various other

A-21

investigative functions. Since he had made a record of

why an investigator was desired, the defendant argues

he was constitutionally entitled to one and that the trial

court’s decision not to accede in his request deprived de-

fendant of his right to effective assistance of counsel and

equal protection of the law. U.S. Const. amends. VI, XIV.

Del. Const. art. I, §7.

The decision to grant or deny funds for investigative

services is within the sound discretion of the court. See

State v. Akyana, Me. Supr., 456 A.2d 1255, 1262 (1983).

An indigent defendant is not entitled to have investiga-

tive services provided by the State, unless he is able to

show that such services are reasonably necessary for the

preparation of an adequate defense. United States v.

Davis, 582 F.2d 947, 951 (5th Cir. 1978), cert. denied,

441 U.S. 962 (1979). The trial court’s ruling will not be

overturned on appeal unless there is a clear and con-

vincing showing of substantial prejudice as a result of

the denial of funds for investigative services. Mason v.

Arizona, 504 F.2d 1345, 1353, 1355 (9th Cir. 1974), cert.

denied, 420 U.S. 936 (1975).

In this case defendant has failed to demonstrate such

prejudice as would justify reversal of the trial court’s de-

cision. He has not identified any reasonably necessary

services of an investigator which would have been ma-

terial to the defense of this murder charge. Thus, there

is no realistic suggestion that the particular investigator

sought would have been able to “counteract” the State’s

evidence. And in any event, the defendant has not shown

that it would have been impracticable for his counsel to

conduct the proposed investigation. See, Mason, 504 F.2d

at 1353. Under these circumstances, we cannot infer that

the purported investigative services were necessary and

conclude that the trial court’s ruling did not deprive the

defendant of effective assistance of counsel.

We also hold that defendant in this case has not

shown that the State’s failure to provide an investigator

deprived him of equal protection of the laws. The de-

A-22

fendant cannot reasonably claim that he has a general

“fundamental right” to investigative services and, there-

fore, any disparity in the availability of investigative re-

sources to indigents represented by the Public Defender

as opposed to indigents represented by appointed coun-

sel constituted nothing more than harmless error in this

case. We note, however, as a general proposition, that

where a reasonable need is clearly demonstrated, the

State must provide the same ancillary services to those

indigent persons represented by court appointed attor-

neys as it provides to those represented by the Public

Defender.

We have been requested by defendant and by the

intervening newspaper publisher to review the propriety

of the standards applied by the trial court in denying the

defendant’s motion to close all pretrial proceedings to the

public and press.° Under the present circumstances we

decline to do so.

We conclude that the defendant has failed to estab-

lish that he was prejudiced by either the standards em-

ployed by the trial court in its evaluation of defendant’s

motion or by the subsequent pretrial publicity. There is

no indication that defendant’s right to a fair trial was jeop-

ardized by the dissemination of any information disclosed

in pretrial proceedings. Under the circumstances, it is

unnecessary for the Court to specify which standard the

trial court should have applied. See United States v.

Civella, 648 F.2d 1167 (8th Cir.), cert. denied, 454 U.S.

867 (1981).

x Ag cd x *

9. Defendant urges this Court to adopt the constitutional bal-

ancing test used by the majority of the Supreme Court in Gannett

Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608

(1979). Theintervening newspaper publisher contends that the three-

part formula used by the trial court is the proper standard of review.

A-23

The judgments and convictions are set aside, and

the case is returned to Superior Court for a new trial.

APPENDIX B

IN THE SUPREME COURT OF

THE STATE OF DELAWARE

ROBERT E. VAN ARSDALL,

Defendant Below,

Appellant,

V. No. 346, 1982

STATE OF DELAWARE,

AAP PPP LP LP

Plaintiff Below, §

Appellee. §

Submitted: December 6, 1984

Decided: December 12, 1984

Before McNEILLY, MOORE, and CHRISTIE, Justices,

constituting the Court en banc.

ORDER

This 12th day of December, 1984, it is ordered that

appellant's motion for rehearing en banc is

DENIED.

BY THE COURT:

/s/ ANDREW D. CHRISTIE

Justice

B-1

APPENDIX C

Relevant Delaware Statutory Provisions

11 Del. C. §636 (1979). Murder in the first degree

(a) A person is guilty of murder in the first degree

when:

(1) He intentionally causes the death of another

person.

11 Del. C. §1447 (1979). Possession of a deadly weapon

during commission of a felony

(a) A person who is in possession of a deadly weapon

during the commission of a felony is guilty of pos-

session of a deadly weapon during commission of a

felony.

11 Del. C. §271 (1979). Liability for the conduct of an

other — Generally.

A person is guilty of an offense committed by an

other person when:

(2) Intending to promote or facilitate the com-

mission of the offense he:

b. Aids, counsels or agrees or attempts to

aid the other person in planning or com-

mitting it.

21 Del. C. §4149 (1981). Walking on highways under

influence of drugs or liquor.

No person shall walk or be upon a highway of this

State while under the influence of intoxicating liquor

and/or narcotic drugs to a degree which renders himself

a hazard.

C-]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.