IN THE SUPREME COURT OF THE STATE OF DELAWARE

REUEL RAY, §
§ No. 379, 2016
Defendant Below- §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§
STATE OF DELAWARE, § ID No. 1210020570A
§
Plaintiff Below- §
Appellee. §

Submitted: June 7, 2017
Decided: July 25, 2017

Before STRINE, Chief Justice; VAUGHN and SEITZ, Justices.
0 R D E R

This 25“’ day of July, 2017, upon consideration of the parties’ briefs, oral
argument, and the record on appeal, it appears that:

(1) Appellant, Reuel Ray, appeals his convictions of Murder in the First
Degree and related offenses He makes two arguments on appeal. First, he contends
that the Superior Court abused its discretion by failing to grant a mistrial. The
second contention, as framed by Ray, is that the Superior Court denied his Sixth
Amendment right to a fair trial by failing to give a contemporaneous cautionary
instruction on the presumption of innocence and admonition to the jury to refrain
from discussing the case prior to deliberations For the reasons which follow, we

reject Ray’s contentions and affirm his convictions

(2) Ray was found guilty of murdering Craig Melancon with a hand gun in
the Southbridge area of Wilmington. A co-defendant, Tyare Lee, participated with
Ray in the murder. Before trial, Lee pled guilty to Murder in the Second Degree and
agreed to testify against Ray. According to Lee’s testimony at Ray’s trial, the two
planned to rob Melancon. When they approached him, Melancon reached for his
pocket. Ray and Lee then both fired their guns at Melancon, hitting him three times,
causing his death. The State also presented the testimony of two witnesses who said
that Ray admitted to them later that he shot Melancon.

(3) Ray was charged with two counts of Murder in the First Degree (one count
of intentional murder and one count of felony murder), one count of Attempted
Robbery in the First Degree, six counts of Possession of a Firearm During the
Commission of a Felony (“PFDCF”), one count of Conspiracy in the Second Degree,
one count of Possession of a Firearm by a Person Prohibited, and two counts of
Criminal Solicitation in the Second Degree. The Person Prohibited charge was
severed and not presented at trial. The jury acquitted Ray of the intentional murder
count and two associated PFDCF charges. It convicted him of the felony murder
charge and the other remaining charges. The State entered a nolle prosequi on two
of the PFDCF charges at sentencing

(4) At trial, an issue discussed among the prosecutor, defense counsel, and

the trial judge was a concern on the part of the State that Ray and members of his

family were attempting to intimidate the State’s witnesses As a result of these
discussions the trial judge ruled that Ray’s brother, Charles Ray, would not be
permitted in the courtroom. In addition, a bailiff and a capitol policeman were
stationed outside the courtroom to ascertain the identity of anyone entering the
courtroom.

(5) On the flfth day of trial, While co-defendant Lee was on the Witness stand
testifying on direct examination, a spectator entered the courtroom. Upon observing
the spectator, the prosecutor, apparently concerned about the person’s identity,
requested a side bar. At the side bar, defense counsel expressed concern that the
sudden request for a side bar when the spectator entered made “it look like we
brought this guy in to try to intimidate the witness.”' The trial judge decided to take
a short recess, mentioning to defense counsel that he could request a cautionary
instruction if he wished to do so.

(6) After returning to the courtroom following the recess, the trial judge
reported the following:

The Court: So [defense counsel] any application that you
have I would be happy to hear, but before you make that
application, I need to disclose now that the jury has

expressed concern for their safety and wants to know why
the recess was taken when that man walked into the room.2

 

' App. to Appellant’s Opening Br. at 160.
2 Id.

Defense counsel then moved for a mistrial:

Defense Counsel: I would make a motion for a mistrial at
this point, because I don’t see why it was necessary for the
State to stop their direct examination immediately, after
turning around and looking upon the entry of this witness
who then sat down on defendant’s side [of the courtroom],
that Was the inference I was concerned about when I came
to sidebar. Altematively we would ask the court to voir
dire each juror at this point in time to determine whether
or not they can fairly continue judging this defendant . . .
This is not an easy case to defend in the first place. Now
that we have this, thejury that’s concerned, not a jury that
is going to listen, the jury is concerned about their safety,
not a jury that is going to be amenable to listening to
arguments that he is not guilty.3

Defense counsel then asked “whether the inquiry [from the jury] was a collective
inquiry, was it a concern expressed by one or more of the jurors.”4 The bailiff
indicated that twojurors had expressed concerns about safety or security, Juror No.
ll and Alternate No. 3. Defense counsel then indicated that “if the mistrial is not
granted on its face,” the voir dire could be limited to the two jurors mentioned, at
least initially, to inquire as to whether “their fears have been communicated to other
jurors.”5

The firstjuror examined Was Juror No. ll. After being asked to express any

concerns she had, she stated:

 

3 Id. at l60-6l.
4 Id. at 161.
5 Id.

Okay, so a lot of stopping and starting, a lot of stuff we
don’t understand We come in yesterday from a break there
is now two police officers standing there by the doors, no
one there they let us on the freight elevator altogether then
of course you know a murder trial today, someone walks in
and we all stop again, we leave.6
When again asked to express her concerns, she responded:
I am confused. Did you ever see the juror Demi Moore, I
know it sounds - this is a murder trial. Kind of wonder if
I am going to get shot in my car, not like I am really think
it is going to happen, I watch a lot of TV. In the back of
my mind . . .7
The juror was then asked whether she had “discussed those concerns with anyone in
the jury room.”g The juror responded, “[h]e came in, I was asking him what is going
on,” an apparent reference to her asking the bailiff what was going on.9 The juror
was then asked whether she had any discussion “with any other jurors about any
concerns that you might have.”'0 She again responded “[j]ust the time he came in I
asked him what Was going on.” Defense counsel asked the Court to inquire whether

that occurred in the presence of the other jurors, and Juror No. l l stated that it had.

After further questions and answers, she was asked whether she could still be an

 

6 !d. at 162.
7 Id.

3 !d.

9 Id.

'° Id.

impartial juror. She responded “Yes, I believe that I don’t mean none of my -I don’t
think that none of that changed.”"
Her examination concluded with this exchange:

The Court: So you in terms of what we discussed here,
having officers in the courtroom, have you - are you able
to view the evidence impartially at this time?

Juror No. ll: Yes.

The Court: Do you think that you would be more or less
likely to find the defendant guilty or not guilty because of
these concerns that you have expressed here?

Juror No. ll: Yes.

The Court: You will view the evidence as a whole
impartially to make a determination at the end of the day?

Juror No. 11: Yes.'2
Altemate No. 3 was then examined The following exchange took place.

The Court: It has been suggested to us that you might have
some safety concems. Do you have any personal safety
concern?

Alternate No. 3: I don’t have any safety concern but yes,
I have noticed different things happening, and us being
released at different times, and just hoping that they didn’t
relate. Like someone walking in to -the last person who
walked in, all of a sudden we leave. Yesterday leaving on
the elevator with two cops and then coming in yesterday
aftemoon they were standing there, being overly
observant, that’s all.

 

'1 Id.
'2 ]d.

The Court: You have concerns?

Altemate No. 31 No, but I questioned why, that’s all.
The Court: Tell me something, you have had any
discussion with any of your fellow jurors about safety

concems?

Altemate No. 3: No, everybody has been kind of open and
honest about it if, like, we all noticed the same thing.

The Court: Has there been a general discussion in thejury

room about the presence of officers or frequency or recess

or anything?

Altemate No. 3: Not that I was aware of, not that I heard.‘3
The alternate was then asked whether she could continue to be fair and impartial, to
which she responded “No question.”“‘

(7) The trial judge then stated that she was satisfied the jurors could be fair
and impartial and denied the motion for a mistrial. When the trial resumed in the
courtroom, the trial judge gave cautionary instructions concerning sequestration of
witnesses, court recesses, objections and court impartiality The direct examination
of Mr. Lee then resumed.

(8) Ray contends that the trial court abused its discretion by failing to order a

mistrial following voir dire of the two jurors When Juror No. l l’s voir dire is taken

 

13 !d. at 163.
14 ]d.

as a whole, he argues, especially, her comment about being shot “in her car,”15 it
shows that she had a fear for her personal safety that went beyond a generalized
anxiety, a fear which impaired her ability to render an impartial, disinterested,
objectivejudgement. He also points to her “Yes” answer when asked if she “would
be more or less likely to find the defendant guilty or not guilty”"’ as further evidence
of her lack of objectivity. He further argues that the responses of the twojurors show
that the trial proceedings in the context of juror safety were being discussed among
the entirejury. As a result, he argues, the failure to declare a mistrial denied him of
his Sixth Amendment right to a fair and impartial panel ofjurors

(9) This Court reviews a “trial court’s denial of a motion for a mistrial under
an abuse of discretion standard.”"' “The trial judge is in the best position to assess
whether a mistrial should be granted.'8 “A trial judge should grant a mistrial only
where there is ‘manifest necessity’ or the ‘ends of publicjustice would be otherwise
defeated.”’19 “A mistrial is mandated only When there are ‘no meaningful and

practical alternatives’ to that remedy.”20

 

ls ld. al 162.

'6 ]d.

" Macoonald v. smie, 816 A.zd 750, 753 (Del. 2003).

'8 Bowe v. Staie, 514 A.2d 408, 410 (Del. 1986).

'9 Sieckel v. Siaie, 711 A.2d 5, ll (Del. 1998) (quoting Fonning v. Superior Couri, 320 A.2d
343, 345 (Del. 1974)).

20 Dawson v. Siate, 637 A.Zd 57, 62 (Del. 1994).

8

(10) We first observe that the specific arguments which Ray makes on appeal
were not made at trial. The stated basis for the mistrial motion was the prosecutor’s
conduct in abruptly interrupting her direct examination of Lee, turning and looking
at the spectator who had just entered, and requesting a side bar. When the motion
for a mistrial was made and the alternative of conducting voir dire was added,
counsel did say that ajury “concerned about their safety” is not ajury that is “going
to be amenable to listening to arguments that he is not guilty.”?" But the specific
arguments arising from the voir dire of Juror No. 11 and Altemative No. 3 were not
made at trial. According to the record, after voir dire of the two jurors was
completed, the trial judge did not offer, and defense counsel did not request, an
opportunity to add any argument based on the jurors’ responses

(1 l) In Duitori v. State, we recognized that “[d]emeanor plays a very
important role in determining impartiality, and thus this detem'iination is particularly
within the province of the Trial Judge.”22 We recognized this principle again in
Hughes v. State, where we stated that “[b]ecause demeanor plays a crucial role in
the determination of impartiality, the trial judge is in a unique position to evaluate
jurors’ assurances of impartiality.”23 While Juror No. ll’s comments about the

movie, “The Juror,” and wondering about getting “shot in my car” are obviously

 

2' App. to Appellant’s Opening Br. at 161 .
22 452 A.Zd 127, 137 (D€l. 1982).
23 490 A.Zd 1034, 1041 (Del. 1935).

troubling, the trial judge was in the best position to assess the weight and seriousness
to be given thejuror’s comments as she observed thejuror’s demeanor. Three times
later in the examination thejuror indicated she could be impartial The “Yes” answer
the juror gave when asked whether her concerns made her “more or less likely to
find the defendant guilty or not guilty” is ambiguous because of the awkward nature
of the question. The answer was clarified in the next and final question in which she
clearly indicated she could be impartial. The trial judge was in the best position to
judge the credibility of thejuror’s responses We also think it significant that neither
the State nor the defense requested that Juror No. ll be removed for cause and
replaced by an altemate. It is not uncommon for the State or a defendant to ask to
have ajuror removed and replaced by an alternate if circumstances arise during trial
which call ajuror’s impartiality into question. Altemates were available in this case.

(12) Ray’s argument that the examinations ofJuror No. ll and Altemate No.
3 show that the trial proceedings in the context of juror safety were being discussed
among the entire jury, and that a mistrial should have been granted for that reason,
is also unpersuasive Ray infers from Juror No. ll’s use of the word “we” several
times in her first response that there was a general discussion going on among the
jurors conceming safety and/or security. I-Iowever, when asked whether she had
discussed her concems with other jurors, her only response was that she had asked

the bailiff in the presence of the otherjurors what was going on. Juror No. 11 never

10

actually said that any discussion with otherjurors took place. Altemate No. 3 clearly
said that no general discussion of the “presence of police officers or frequency of
recess or anything” took place in her presence.24 Defense counsel did not raise this
issue after hearing the voir dire of both jurors, express any dissatisfaction with the
voir dire, or renew his request that additional jurors be examined.

(13) On this record, we conclude that the trial judge’s decision to deny the
motion for a mistrial was not an abuse of discretion.

(14) Ray also contends, for the first time on appeal, that the trial court denied
his Sixth Amendrnent right to a fair trial by failing to give a contemporaneous
cautionary instruction on the presumption of innocence and admonition to the jury
to refrain from discussing the case prior to deliberations Ray argues that following
the trial court’s examination of Juror No. 1 1 and Altemate No. 3, “a situation was
created where inferences of danger would be held against Ray to which the court’s
response was an insufficient counter and the universal jury misconduct was allowed

1125

to continue. Because this claim was not fairly presented to the trial court, we
review for plain error.26 “Under the plain error standard of review, the error

complained of must be so clearly prejudicial to substantial rights as to jeopardize the

 

24 App. to Appellant’s Opening Br. at 163.
25 Appellant’s Opening Br. at 28.
26 th°bin v. SIGI€, 104 A.3Cl 108 (Del. 2014).

ll

fairness and integrity of the trial process.”27 “[T]he doctrine of plain error is limited
to material defects which are apparent on the face of the record; which are basic,
serious and fundamental in their character, and which clearly deprive an accused of
a substantial right, or which clearly show manifest injustice.”28 There is no such
error, here.

NOW, TI-[EREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY COURT:
yime C/a;i£i ,
S C€

 

27 Wai'rniirighi v. State, 504 A.2d 1096, 1100 (Del. 1986).
28 Id.

12

