WILLIAM S. SELLS, III, Defendant-Below, Appellant,
STATE OF DELAWARE, Plaintiff-Below, Appellee
Submitted: December 10, 2014.
Case Closed February 12, 2015.
Court Below: Superior Court of the State of Delaware, in and for Kent County. Cr. I.D. No. 1108023648.
Andre Beauregard, Esquire (argued), Brown, Shiels & Beauregard, LLC, Dover, Delaware, and Adam D. Windett, Esquire, Hopkins & Windett, LLC, Dover, Delaware, for Appellant.
John Williams, Esquire (argued), Department of Justice, Dover, Delaware, for Appellee.
Before STRINE, Chief Justice, HOLLAND, RIDGELY, VALIHURA and VAUGHN, Justices, constituting the Court en Banc.
Defendant-Below, Appellant William S. Sells, III (" Sells" ) appeals from a Superior Court judgment where the jury found Sells guilty of Robbery in the First Degree, Possession of a Firearm During the Commission of a Felony, Possession of a Firearm by a Person Prohibited, Wearing a Disguise During the Commission of a Felony, six counts of Aggravated Menacing, and five counts of Reckless Endangering in the Second Degree. Sells was sentenced as follows: as to Robbery First Degree, twenty-five years at Level V incarceration pursuant to 11 Del. C. § 4214; as to Possession of a Firearm During the Commission of a Felony, twenty-five years at Level V incarceration pursuant to 11 Del. C. § 4214; as to Possession of a Firearm by a Person Prohibited, eight years at Level V incarceration pursuant to 11 Del. C. § 4214; as to Wearing a Disguise During the Commission of a Felony, five years at Level V incarceration pursuant to 11 Del. C. § 4214; as to six counts of Aggravated Menacing, five years at Level V incarceration pursuant to 11 Del. C. § 4214 on each count; and as to five counts of Reckless Endangering Second Degree, one year at Level V incarceration pursuant to 11 Del. C. § 4214 on each count. Thus, Sells was sentenced as a habitual offender to an aggregate Level V sentence of ninety-eight years. A timely notice of appeal was filed on August 16, 2013.
Sells raises two arguments on appeal. First, Sells argues that the Superior Court erred when it denied his motion to sever his trial from his co-defendant's, Russell Grimes (" Grimes" ). Sells contends that Grimes would have provided exculpatory evidence if the trials had been severed. Second, Sells argues that the Superior Court erred in finding one of his peremptory challenges of a white juror violated the United States Constitution, and that it erred in upholding the State's Batson  challenge. We agree with Sells' as to his second claim and, therefore, need not reach the first claim. Accordingly, the judgment below is reversed as to Sells' conviction.
I. FACTUAL AND PROCEDURAL HISTORY
On August 26, 2011, a masked man entered the First National Bank of Wyoming in Felton, Delaware (the " Bank" ), displayed what appeared to be a firearm, ordered the Bank manager to exit her office, and told the tellers to empty the cash drawers. During the robbery, the man jumped over a counter in the Bank and blood was later discovered on the ceiling above that counter. The man placed the money from the cash drawers into a satchel and exited the Bank. These events were recorded on the Bank's security cameras. The money taken from the Bank contained dye packs, a security device designed to stain money taken from the Bank, and " bait bills," bills for which the bank had recorded and maintained serial numbers in case of theft. Over $53,000 was taken from the Bank.
When the suspect exited the Bank, he entered a black SUV. An employee of the Bank who ran outside during the robbery testified that she saw the SUV driving away from the Bank and that the SUV was emitting " pink, red smoke" which indicated to her that the dye pack had gone off. Officer Keith Shyers of the Harrington Police Department (" Officer Shyers" ) also observed the SUV, and testified that he saw a black male " hanging out [of] the window" of the SUV and a " red poof" that " looked like some kind of paint."
Because the vehicle was traveling at a high rate of speed and he thought something was suspicious, Officer Shyers turned around and began following the SUV. Officer Shyers then heard a call that went out over the radio dispatch for a robbery that had just occurred at the Bank. Officer Shyers was the first officer to begin pursuing the car and was the lead vehicle for much of the pursuit. A few minutes into the pursuit, the SUV stopped at an intersection and the passenger got out of the vehicle and began firing shots at the pursuing officers. Officer Shyers testified that he was approximately 20 to 30 feet from the passenger and that the passenger was a black male wearing a grey hooded sweatshirt.
The passenger then got back in the SUV and a high-speed pursuit ensued involving officers from the Delaware State Police, Harrington Police Department, and Felton Police Department. At various points during the pursuit, the passenger popped up through the sunroof and fired shots at the officers. The left rear tire on Officer Shyer's vehicle was shot and he abandoned his vehicle and jumped in another officer's car to continue the pursuit.
Corporal Scott Torgerson, an assistant shift supervisor for the Delaware State Police (" Corporal Torgerson" ), who was driving a fully-marked Crown Victoria, took over as the lead vehicle in the pursuit. The passenger continued to fire shots at the officers from the sunroof. The SUV drove around spike strips that had been set in its path and Corporal Torgerson continued to pursue it. Shortly thereafter, the driver lost control of the SUV and it came to rest in a ditch with its back tires stuck. The driver and the passenger both exited the SUV and began fleeing and Corporal Torgerson fired shots at them. The driver of the SUV was shot in the leg by Corporal Torgerson and was later identified as Grimes. The passenger of the vehicle escaped on foot.
The SUV was registered to Sophia Jones (" Jones" ). Jones was Sells' girlfriend. Jones and Sells shared an apartment and had a child together. Jones testified that she did not know who was driving the SUV at the time of the bank robbery because she had not seen the SUV in over a week, but that the last time she had seen the SUV, Sells had been driving it. She testified that Sells had the SUV because he was trying to sell it.
After the robbery, police officers searched the apartment that Jones and Sells shared and asked her questions. Jones gave the officers Sells' cell phone number and told them that Sells' best friend was named " Russell." On August 28, 2011, Jones contacted the police and inquired about getting her SUV back. The officers asked Jones if Sells had contacted her, and she replied that he had called her, inquired after his son, and asked whether the police had been to the apartment because he had heard about the SUV being in an incident with Grimes.
On September 6, 2011, Sells was found barricaded in a room at the Shamrock Motel. The SWAT team deployed tear gas grenades, smoke grenades, stringball grenades, and stun grenades into the room through a small bathroom window that opened to the outside in order to get Sells to exit the room, but those efforts were unsuccessful. The officers used so many of the various types of grenades that Sergeant Ennis testified that he had " no idea how [Sells] stayed" in the room.
When the standoff ended and Sells was taken into custody, United States currency was collected from three separate locations of the motel room: in the living room, in the bathroom, and outside the hotel underneath the bathroom window. Many of the bills that were collected as evidence at the hotel were torn and burned. Some of the money that was collected in the living room area of the motel room also appeared to be stained with a red dye. Sells' defense counsel elicited testimony on cross examination that the red stains on the currency could have been caused by some of the explosives, which discharge red dye. A large red stain also appeared on one of the walls of the motel room. Around 50 bills were collected from the motel room ranging in denominations from $1 to $50. The total value of the money collected was at most $769.
Witnesses testified that Sells had used $475 of money with a red dye stain to purchase cigarettes, and that 34 of those bills matched bait bills that were taken from the Bank. One of Sells' female companions also testified that Sells used $3,500 in cash to purchase a car and that some of that money had red on it. That money was never recovered.
On November 7, 2011, Sells was indicted on one count of Robbery First Degree, one count of Conspiracy Second Degree, one count of Conspiracy First Degree, two counts of Possession of a Firearm During the Commission of a Felony, two counts of Possession of a Firearm by a Person Prohibited, one count of Wearing a Disguise
During the Commission of a Felony, six counts of Aggravated Menacing, one count of Felony Theft, and five counts of Attempted Murder First Degree. On November 29, 2011, Sells entered a plea of not guilty and requested a trial by jury. On April 10, 2013, Sells filed a motion to sever (the " First Motion to Sever" ) his trial from that of his co-defendant, Grimes. That motion, while not included in the record before us, appears to have been based on a claim that Sells and Grimes planned to present defenses that were antagonistic to one another. A hearing was held on the motion on April 18, 2013, and Sells was given an opportunity to file a supplemental memorandum of law on April 23, 2013. The Court denied the First Motion to Sever on April 30, 2013, and scheduled trial to begin on May 7, 2013. On May 1, 2013, Sells filed a new motion to sever (the " Second Motion to Sever" ).
The Second Motion to Sever stated that Sells' defense counsel met with Grimes on April 30, 2013, and that Grimes made statements that could have potentially exonerated Sells of any wrongdoing. Sells argued that he would be extremely prejudiced by the absence of the exculpatory testimony that Grimes would provide, and that Grimes would not testify at a joint trial due to the likelihood that his criminal record would be introduced by the State, but that if the trials were severed, Grimes would testify on Sells' behalf. The Second Motion to Sever included an Exhibit -- a statement signed by Sells' defense counsel that stated:
1. On Tuesday April 30, 2013, undersigned counsel met with Russell Grimes . . . and obtained a detailed statement from Grimes. Grimes advised that he was familiar with Defendant Sells and has known Sells for several years.
2. Grimes stated that he was living in Winston-Salem, North Carolina for seven months in 2011, contacted Sells in the summer of 2011, and arranged to purchase a black Ford Explorer from Sells. He did not purchase the vehicle with the intent to use it in the robbery. Nor did he discuss any criminal activity with Sells.
3. . . . Upon [Grimes'] arrival in Delaware, he contacted Sells and arranged to meet to purchase the Ford Explorer. Grimes paid $1,500.00 cash for the vehicle. . . .
4. Grimes stated that he believed the vehicle to be insured by Sophia Jones, Sells' girlfriend and an insurance card was in the car indicating the same. He further stated that the transfer of the vehicle was not completed properly and that he could not do so because of warrants for his arrest in Delaware.
5. Grimes stated that he was driving the vehicle at the time of the alleged robbery, that Sells was not with him, and that Sells was not involved in the robbery of the First National Bank of Wyoming. Grimes was unequivocal in his assertion that Sells could not have been involved in the robbery. He described the suspect that committed the robbery as a male of Spanish descent, six feet tall, thin build, with a tear drop tattoo under his eye.
6. Grimes stated that he does not intend to testify at the scheduled joint trial. However, should the trials be severed, Grimes advised that he would be willing to testify on Sells' behalf and he would testify that Sells was not present for, did not plan, nor participate in the
robbery at the First National Bank of Wyoming. Grimes would testify that he was in sole possession and control of the Ford Explorer he bought from Sells and rebut evidence introduced by the State for the purpose of implicating Sells.
The Superior Court was displeased with the tardiness of the motion to sever and with the fact that the motion to sever did not include a sworn affidavit from Grimes. Instead, it included only a signed statement from defense counsel describing the conversation that they had with Grimes. In considering the Second Motion to Sever at the pre-trial hearing, the Superior Court stated:
I'm looking at Butler, . . . [T]he unsigned by Mr. Grimes exhibit, would certainly substantiate a bona fide need on the part of Mr. Sells for the testimony. The substance of the testimony is decidedly relevant. It is completely exculpatory in nature and effect. The fourth requirement, of course, is that the codefendant will, in fact, testify if the cases are severed. So that's one issue. Then, if there is a showing on the first four, then the Court's to examine the significance of the testimony, and I would say it's clearly significant; assess the extent of the prejudice caused by its absence, and although it's not [one] hundred percent, I would certainly say it's substantial; pay close attention to judicial administration, which would have to be ignored completely; and give weight to the timeliness, which is, as has been mentioned previously, atrocious.
The Superior Court then questioned Grimes, who was proceeding pro se, to determine whether he would, in fact, testify on Sells' behalf if the trials were severed. Grimes initially appeared to be confused about what the Superior Court was asking him. After the Superior Court explained the factors that it was required to consider to determine whether to grant a motion to sever, the following colloquy occurred between the Court and Grimes:
Court: So let's get to the issue about whether the codefendant will, in fact, testify consistent with the information that he's given. Does Mr. Grimes or his standby counsel want to take any position on that?
Grimes: Yes. Good morning, your Honor.
Court: Good morning, Mr. Grimes.
Grimes: I didn't tell anybody that I was testifying.
Court: What's that?
Grimes: I didn't say I was testifying to this, what's on this paper. I don't even know what they talking about, somebody sold me guns. They sold me --
Court: Don't get into any facts. The question is whether you will testify as you have described -- as has been described in this exhibit. And if somebody wants to hand him a copy of the exhibit, that's fine.
Grimes: Where's the exhibit, sir?
Court: I just finished saying if somebody wants to hand you a copy of it.
Grimes: No, no, no. Nobody sold any guns. I didn't have any guns.
Court: I don't know that it's --
Grimes: I didn't say nothing like that.
Defense counsel had not brought a copy of the Second Motion to Sever or the attached exhibit to the courtroom, and no
one had a copy that Grimes was able to review. The record suggests that Grimes was provided with a copy of the First Motion to Sever, and not the affidavit signed by defense counsel indicating Grimes' proffered testimony in a severed trial. Grimes further stated:
the only thing I would be willing to testify, the truck situation, me buying the truck and me coming from North Carolina to get the truck, that's the only thing I'm testifying to, if I would testify. Anything other than that, I have nothing to do with it. I don't know what they are talking about.
After the Court dealt with some other preliminary matters, Sells' defense counsel asked to be excused. When he returned, counsel explained that Grimes did not have the correct affidavit in front of him, but now Grimes had signed an exhibit to Sells' Second Motion to Sever describing the exculpatory testimony that Grimes would be willing to provide if the trials were severed. At this point, Grimes indicated that he would be offering at trial the affirmative defense of duress. The State indicated that Grimes would need to take the stand and testify during the trial if he wished to argue that he was under duress. After speaking with his standby counsel, Grimes then stated, " I understand now that I would have to testify, so if that's what it is, then that's what it will be." Sells' Second Motion to Sever was then denied because Grimes indicated that he would be testifying at trial.
The Superior Court proceeded to select a jury on May 6, 2013. A joint jury trial commenced on May 6, 2013, and concluded on May 28, 2013. There were approximately sixty witnesses. On the eighth day of trial, after the State presented its case-in-chief, Grimes advised the Superior Court that he did not intend to testify. Neither Sells nor Grimes testified at their joint trial.
Sells then renewed his motion to sever on May 20, 2013, (the " Third Motion to Sever" ) and the Superior Court denied the motion in a bench ruling that day. Sells never mentioned the Third Motion to Sever in his opening brief and did not include the pages from the transcript where the Third Motion to Sever was made and denied in the appendix to his opening brief.
Sells raises two claims on appeal. First, he argues that that the trial court abused its discretion in denying his request for severance of the trials. Second, he argues that the trial court erred when it ruled that Sells' peremptory challenge to Juror #8 was a reverse- Batson violation. Because we find merit in the second claim and, accordingly, reverse, we need not reach Sells' first claim.
A. The Trial Court Erred in Seating Juror #8
1. Standard of Review
Sells' second claim on appeal is that the trial court erred in ruling that his peremptory challenge of a juror violated Batson v. Kentucky, and erred in ordering the juror to be seated. Sells claims that the State failed to make a prima facia case that his peremptory challenge constituted racial discrimination. We agree.
In objecting to a peremptory challenge, the moving party bears the burden of establishing a prima facie case that the use of the peremptory strike constitutes racial discrimination. The burden then shifts to the proponent of the strike to present a race-neutral explanation. If a race-neutral explanation is tendered, the trial court must decide whether the opponent of the peremptory strike has proved purposeful discrimination by the proponent of the strike. As to the first step of the Batson analysis, we review the trial court's factual findings for an abuse of discretion,
but we review legal conclusions de novo.
The Sixth Amendment to the United States Constitution and Article I, Section 7 of the Delaware Constitution recognize a defendant's " fundamental right to trial by an impartial jury."  A peremptory strike safeguards that fundamental right. Juror impartiality must be maintained not only in the interest of fairness to those accused, but also to assure the integrity of the judicial process.  However, a peremptory strike may not be used by the State or the defendant in violation of the Equal Protection Clause of the United States Constitution. In Batson v. Kentucky, the United States Supreme Court established a three-step process to analyze claims that a party utilized peremptory strikes in violation of the Equal Protection Clause. First, the opponent of the strike must make a prima facie case of discrimination " by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose."  Second, once the opponent makes a prima facie case, then the burden shifts to the proponent of the strike to present a neutral, non-discriminatory explanation " related to the particular case to be tried."  Third, if a neutral, non-discriminatory explanation is tendered, the trial court must determine if the opponent of the strike has established purposeful discrimination by the proponent.
In this case, the State made a Batson challenge during jury selection because it claimed that the defendant had stricken three white jurors. As a preliminary matter, the factual premise of the State's challenge was not correct. Sells exercised one of his peremptory challenges to strike a black juror and two peremptory challenges to strike two white jurors. Moreover, Sells argues that his strikes of two white jurors and one black juror were consistent with the racial demographics of Kent County. Accordingly, he argues that
there was an insufficient factual basis for the State's challenge. Sells' counsel objected on the record during the trial that the State had failed to establish a pattern of racial discrimination.
As this Court recently explained in McCoy v. State, " [a] State's Batson objection to the defendant's exercise of a peremptory challenge is known as a reverse Batson claim."  In McCoy, we set forth the following test to be applied in analyzing a reverse Batson claim:
When the State makes a reverse Batson challenge to a peremptory strike a three-step inquiry is required. First, the trial judge must determine whether the State has made a prima facie showing that the defendant exercised a peremptory challenge on the basis of race. Second, if the showing is made, the burden shifts to the defendant to present a race-neutral explanation for striking the juror in question. Although the defendant must present a comprehensible reason, " [t]he second step of this process does not demand an explanation that is persuasive, or even plausible" ; so long as the reason is not inherently discriminatory, it suffices. Third, the trial judge must then determine whether the State has carried its burden of proving purposeful discrimination. This final step involves evaluating " the persuasiveness of the justification" proffered by the [defendant], but " the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike," which is usually the State in a reverse Batson challenge.
Thus, a reverse Batson claim arises upon the prosecution arguing that a minority defendant is engaging in racial discrimination because he is striking white jurors.
In responding to the State's reverse Batson challenge, the Superior Court stated:
As counsel for Mr. Sells know [ sic ] and as Mr. Grimes may well not, while these strikes are peremptory and can be made for any reason or no reason, basically, they cannot be exercised on the basis of race. I think I will not change anyone seated to this point, but I would simply say to counsel for Defendant Sells and to Mr. Grimes that from this point forward, because of the pattern that has emerged, that any excusal of a Caucasian juror will have to be for an express reason other than race.
The Superior Court stated that it was not requiring the defendants to provide reasons for jurors that had already been excused, but that going forward, a stated reason would be necessary.
Grimes then attempted to use a peremptory strike on Juror #8, a white male. The following exchange occurred:
Court: Mr. Grimes, this is your strike. What is your nonracially-based reason?
Grimes: The nonracially-based reason is because he's employed by Kent County Levy Court. I guess he's employed by law enforcement through them.
Court: Levy Court is not law enforcement.
Grimes: Well, I don't know.
Court: Well, I do, and it's not.
Grimes: I don't know if that's the reason he's saying he's employed by law enforcement or not. I'm saying he's employed by the court, and it says he's employed by law enforcement.
Court: He's not employed by this court.
Grimes: Okay. I understand what you're saying, your Honor. I'm going by what it says on the jury profile, and on the jury profile, it says specifically that he's employed by law enforcement. So when I see " law enforcement," and this is a case involving law enforcement, the neutral racial bias -- I mean the base reason --
Court: I understand.
Grimes: -- is that he's employed by law enforcement, whether it's the court or not. I just see that he's employed by law enforcement, and this is a case involving law enforcement.
State: But so is Juror 11 . . . who happens to be a black male, yet this defendant has only struck whites. Your Honor, and just for the record, While [Juror #8] does indicate he's employed in Kent County Levy Court, his occupation is a mechanic.
The Court allowed Juror #8 to remain seated. Sells then exercised a peremptory challenge with respect to the same juror for the same reasons. The following exchange occurred between the Court and Sells' counsel:
Court: Okay. You heard everything that was said two minutes ago, and you heard my ruling on that. You have nothing to add to that; is that correct?
Counsel: Except, your Honor, that now it's our motion to strike.
Court: No, no. It's no different, yours or Mr. Grimes.
Counsel: Well, there is a difference.
Court: Mr. Grimes made the same motion and it was denied. He's seated. Now unless you have something new to add, then I'm going to be really concerned about why we're going through this exercise at all.
Counsel: I'm establishing a record, in that, we believe he's employed by law enforcement.
Court: Okay. Fine. He's going to be seated.
Sells now argues on appeal that the trial court erred in finding a pattern of racial discrimination in the exercise of his three peremptory strikes, and that Juror #8's response to the jury questionnaire indicating that he was a member of law enforcement was a valid race-neutral basis to permit his removal by the defense.
In this case, the State had the burden of establishing a prima facie case that the non-moving party (Sells) intentionally used his peremptory challenges to discriminate against a cognizable group. The trial court found a pattern of racial discrimination after Sells struck two Caucasian jurors and one African American juror. As we stated in McCoy, " [a]lthough there are no fixed rules, we acknowledge that 'a pattern of strikes against jurors of a particular race could be prima facie
evidence of racial discrimination.'"  But here, the State engaged in no analysis to support its claim that a pattern of racial discrimination existed -- other than aggregating Grimes' and Sells' peremptory challenges and stating that a pattern existed because the defendants, collectively, used five of six strikes on white jurors. " It is the opponent of the strike's burden to set forth 'facts and other relevant circumstances' to support an inference of discrimination."  We do not believe that the State established a prima facie case of discrimination based upon Sells' attempt to strike two white jurors.
As the United States Supreme Court explained in Batson, " [w]e have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the . . . use of peremptory challenges creates a prima facie case of discrimination against . . . jurors."  A trial court is within its discretion to ...