                IN THE SUPERIOR COURT OF THE STATE OF DELAWARE



STATE OF DELAWARE                                    )
                                                     )
        v.                                           )        I.D. No. 1710001043
                                                     )
VERNON MONTGOMERY,                                   )
                                                     )
        Defendant.                                   )

              MEMORANDUM OPINION DENYING DEFENDANT’S RULE 33
                  MOTION FOR NEW TRIAL FOR TAINTED JURY

        Defendant Vernon Montgomery moves (the “Motion”) for a new trial asserting that his

Fifth, Sixth and Fourteenth Amendment rights to a fair trial were prejudiced by a juror’s

purported “improper remarks and improper statements/jokes.” The Court finds that, despite the

claims in the Motion, the jury was not tainted and Mr. Montgomery was not prejudiced by any

purported jury misconduct. Therefore, the Motion is DENIED.

                       I. PROCEDURAL AND FACTUAL BACKGROUND

        The State charged Mr. Montgomery with: (i) Robbery First Degree; (ii) Possession of a

Firearm during the Commission of a Felony; (iii) Wearing a Disguise; (iv) Possession of a

Firearm by a Person Prohibited; and (v) Possession of Ammunition by a Person Prohibited. Mr.

Montgomery is acting as his own attorney. Mr. Montgomery did not deny that he committed the

offenses. Instead, Mr. Montgomery relied upon the affirmative defense of duress.

        After selecting the jury, Alternate Juror #2 delivered a note to the bailiff. The note

provided that one of the jurors, Juror #5, made a statement during the break that “[Mr.

Montgomery] is letting all the men go because he is guilty.”1 The Court read the note in open


1
 As written by Alternate Juror #2, the statement is factually incorrect for two reasons. First, Mr. Montgomery did
not use preemptory strikes only as to men. Second, the jury ended up being diverse as to gender—five males and
seven females with two female alternates.
court and discussed it with the State’s attorney and Mr. Montgomery.

       The Court then conducted an individual voir dire with each juror, beginning with

Alternate Juror #2. Alternate Juror #2 relayed her information. Juror #5 indicated that he did not

hear anyone make a statement regarding Mr. Montgomery’s guilt. Juror #3 provided that

someone may have something about guilt but was not sure who said it or in what context. Juror

#12 believed someone may have said something about guilt in a joking fashion and said that it

was hoped that the trial would not last six weeks. Jurors #1, #2, #4, #6, #7, #8, #9, #10, #11 and

Alternate Juror #1 said they did not hear anyone mention anything about Mr. Montgomery’s

guilt or innocence. The Court did replace Juror #4 with Alternate Juror #1 as Juror #4 was

suffering from an affliction that caused her to fall asleep during the trial.

       The Court questioned each juror as to whether they had formed a conclusion as to the

guilt or innocence of Mr. Montgomery. All indicated that they had not. In addition, the Court

asked each juror if they would keep an open mind until the conclusion of the presentation of

evidence, argument and final instructions. All the jurors indicated that they would. The Court

then discussed the matter with Mr. Montgomery and the State’s attorney. After this discussion,

the Court, exercising its discretion, determined not to release any of the remaining jurors.

       The jury returned a verdict, finding Mr. Montgomery guilty on all charges. Mr.

Montgomery thereafter filed the Motion. The State filed its State’s Response to Defendant’s

Motion for New Trial Pursuant to Rule 33 (the “Response”) on May 3, 2019. The Court has

determined that no hearing is necessary after reviewing the Motion and the Response.

                                  II. STANDARD OF REVIEW

       Superior Court Criminal Rule 33 provides that “[t]he court on motion of a defendant may




                                                   2
grant a new trial to that defendant if required in the interest of justice....”2 The Court has

discretion to grant a new trial but new trial grounds must have been asserted during the preceding

trial.3 Without demonstrated prejudice, a new trial is not warranted.4 But where a defendant is

substantially prejudiced such that the right to a fair trial is violated under the Sixth Amendment,

a new trial is warranted.5 The right to a fair trial is “a fundamental liberty secured by the

Fourteenth Amendment.”6 “One accused of a crime is entitled to have his guilt or innocence

determined solely on the basis of the evidence introduced at trial, and not on grounds of official

suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.”72

          When investigating whether a courtroom circumstance has prejudiced a jury, “the

question must be not whether jurors actually articulated a consciousness of some prejudicial

effect, but rather whether an unacceptable risk is presented of impermissible factors coming into

play.”8

                                            III. CONTENTIONS

    A. Mr. Montgomery’s Contentions

          Mr. Montgomery contends that his Fifth, Sixth and Fourteenth Amendment rights to a

fair trial were prejudiced by the purported statements of Juror #5 and others about Mr.

Montgomery’s guilt prior to hearing the evidence at trial. Mr. Montgomery claims the conduct is

egregious and completely undermines the fairness and integrity of the trial proceedings.

    B. The State’s Contentions

          The State argues that Mr. Montgomery has failed to meet his burden under Superior


2
  Del. Super. Crim. R. 33.
3
  State v. Ruiz, 2002 WL 1265533, at *2 (Del. Super. June 4, 2002) (citing State v. Halko, 193 A.2d 817 (1963)).
4
  Starling v. State, 882 A.2d 747, 755 (Del. 2005).
5
  State v. Hill, 2011 WL 2083949, at *6 (Del. Super. Apr. 21, 2011).
6
  Estelle v. Williams, 425 U.S. 501, 503 (1976) (citations omitted).
7
  Taylor v. Kentucky, 436 U.S. 478, 485 (1978).
8
  Holbrook v. Flynn, 475 U.S. 560, 570 (1986) (citations omitted).

                                                         3
Court Criminal Rule 33. Specifically, the State contends that Mr. Montgomery cannot show bias

because the Court conducted individual voir dire of each juror, and that each juror stated that

they would remain undecided until after all the evidence had been presented. The State notes

that, “at best,” the purported statement by Juror #5 (and/or others) was “loose talk.”

                                         IV. DISCUSSION

          The grounds upon which a new trial is sought must have been originally raised during

trial.9 The purported conduct of Juror #5 (and/or others) was addressed at length by the Court

through the voir dire of each juror. Moreover, the Court remediated any potential prejudice.

First, the Court inquired regarding each juror’s observations individually and queried jurors

whether their observations impacted their ability to be fair and impartial. Every juror indicated

he or she could remain fair and impartial. The Court instructed each juror individually before

resuming the trial. The Court also instructed the jurors throughout trial not to talk about the case

among themselves or any third party before the final deliberations. Furthermore, as standard for

all jury instructions, the jurors were instructed, that “[i]t is your duty as jurors to determine the

facts, and to determine them only from the evidence in this case.”

          The individual voir dire in connection with the purported statements regarding Mr.

Montgomery’s guilt was entirely thorough. The voir dire revealed that none of the jurors had

made the statement provided by Alternate Juror #2 in her note to the bailiff or heard that specific

statement. A few of the jurors remembered some general statement regarding guilt but could not

remember who made the comment or in what context the comment was made. Another juror

remembered a comment made about guilt in a joking fashion. No juror testified that the jurors

had determined Mr. Montgomery’s guilt before the presentation of evidence even began. No



9
    Ruiz, 2002 WL 1265533, at *2.

                                                   4
juror recalled any statement by another juror that had affected the juror’s perception of Mr.

Montgomery. Each juror told the Court that he or she could remain fair and impartial.

         Delaware courts have repeatedly emphasized that curative instructions can relieve any

potential resulting prejudice.10 The Court reminded each juror to keep an open mind until all the

evidence had been presented. Moreover, the Court reminded the jury in the Court’s standard

instructions that verdicts must be determined “only from the evidence.”

         The jury’s dialogue, if true, does not merit a new trial. When investigating improper

juror communications, the Delaware Supreme Court has distinguished between improper

communications and mere “loose talk.”11 In Styler v. State, the Supreme Court reasoned that

while an active juror should never make statements about a case in response to a spectator’s

comment, where the statements constitute mere “loose talk,” rather than reflecting improper bias

towards the defendant, a new trial is not warranted.12

         The Styler analysis is apt to the juror dialogue in this case. The jurors’ “talking amongst

each other,” as described by Alternate Juror #2, at most, constitutes “loose talk” rather than

improper bias. While the jurors’ comments—if made—were not proper, they do not demonstrate

juror bias. Juror bias is intolerable in our judicial system; however, there are nevertheless sound

reasons for limiting retrospective inquiry into judicial verdicts. The Court alleviated the fear that

such “loose talk” might reflect juror bias by its individual voir dire and each juror’s declaration

that they could remain fair and impartial.

         A new trial is not merited here. Any prejudice to Mr. Montgomery was promptly and


10
   See, e.g., Thompson v. State, 886 A.2d 1279 (Del. 2005) (the effectiveness of a curative instruction outweighed
any potential resulting prejudice from a party’s improper remark).
11
   Styler v. State, 417 A.2d 948, 953 (Del. 1980) (transcript from trial court indicated that improper bias would be
when (i) a member of the venire prejudged the defendant and purposefully got on the jury to see that the defendant
was found guilty, or (ii) a selected juror, prior to the conclusion of the trial, expressed a firm conclusion that the
defendant was guilty regardless of anything).
12
   Id.

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thoroughly investigated. The Court’s inquiry revealed it did not impact juror impartiality and did

not contravene Mr. Montgomery’s right to a fair trial. The jurors’ conduct did not create an

“unacceptable risk” that impermissible factors were within the jury’s consideration and does not

compel the granting of a new trial in the interest of justice.13

                                               V. CONCLUSION

           Therefore, Mr. Montgomery’s Rule 33 Motion for New Trial for Tainted Jury is

DENIED.

IT IS SO ORDERED.

Dated: May 22, 2019
Wilmington, Delaware

                                                        /s/ Eric M. Davis
                                                        Eric M. Davis, Judge

cc:        Vernon Montgomery (SBI 00865718)
           Timothy Maguire, Esq., DAG




13
     See Holbrook v. Flynn, 475 U.S. 560, 570 (1986).

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