         IN THE SUPREME COURT OF THE STATE OF DELAWARE

IN THE MATTER OF THE                     §
PETITION OF VERNON                       § No. 516, 2019
MONTGOMERY FOR A WRIT OF                 §
MANDAMUS                                 §

                           Submitted: January 30, 2020
                             Decided: March 4, 2020

Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.

                                     ORDER

      Upon consideration of the petition for an extraordinary writ of mandamus and

the State’s answer and motion to dismiss, it appears to the Court that:

      (1)    The petitioner, Vernon Montgomery, seeks to invoke the original

jurisdiction of this Court, under Supreme Court Rule 43, to issue a writ of mandamus

to compel the Superior Court to transmit to this Court two audio recordings as part

of the record in his direct appeal in Montgomery v. State, No. 242, 2019. The State

has filed a motion to dismiss Montgomery’s petition on the ground that it manifestly

fails to invoke this Court’s original jurisdiction. We agree.

       (2)   In November 2017, a Superior Court grand jury indicted Montgomery

for first degree robbery, possession of a firearm during the commission of a felony

(“PFDCF”), wearing a disguise during the commission of a felony (“WDDCF”),

possession of a firearm by a person prohibited (“PFBPP”), and possession of

ammunition by a person prohibited (“PABPP”). Montgomery filed a motion to
suppress. While the motion to suppress was still pending, the Superior Court granted

Montgomery’s request to proceed pro se.              After the Superior Court held an

evidentiary hearing on the motion to suppress on August 10, 2018, the court denied

the motion. Prior to trial, the Superior Court severed the charges of first degree

robbery, PFDCF, and WDDCF (“Case A”) from the charges of PFBPP and PABPP

(“Case B”).

         (3)     On February 5, 2019, Case A proceeded to a jury trial. During the

course of jury selection, an allegation of juror misconduct arose. After the trial judge

individually questioned each juror about the allegation, the court found that the jury

had not been tainted and did not excuse any juror in connection with the allegation.1

After a three-day jury trial, the jury found Montgomery guilty as charged.

Montgomery immediately proceeded to a bench trial on Case B and was found guilty

of the person-prohibited offenses. Montgomery has appealed his convictions and

sentences to this Court. After filing his notice of appeal, Montgomery filed this

petition for mandamus asking the Court to direct the Superior Court to transmit to

the Court two audio recordings as part of the record in his direct appeal: (i) the

recording of the August 10, 2018 suppression hearing and (ii) the recording of the

Superior Court’s questioning of the jurors in connection with the allegation of juror

misconduct.


1
    One juror was excused for an unrelated reason.

                                              2
       (4)       A writ of mandamus is designed to compel the Superior Court to

perform a duty if it is shown that: (i) the complainant has a clear right to the

performance of the duty; (ii) that no other adequate remedy is available; and (iii) that

the Superior Court has arbitrarily failed or refused to perform its duty.2 A writ of

mandamus will not be issued “to compel a trial court to perform a particular judicial

function, to decide a matter in a particular way, or to dictate the control of its

docket.”3

       (5)     A writ of mandamus is not warranted under the circumstances here.

Montgomery cannot establish that the Superior Court had a duty to provide this

Court with audio recordings of the proceedings. The record on appeal consists of

the original papers, including photographs, documentary exhibits, and the prepared

transcript.4 Moreover, Montgomery cannot show that the Superior Court arbitrarily

failed or refused to perform its duty. In a separate motion filed with the Superior

Court prior to trial, Montgomery sought permission to review the recording of the

suppression hearing himself. The Superior Court correctly noted that the authority

to review transcripts for errors lies with the Superior Court itself.5 After the trial

judge listened to the audio recording of the suppression hearing, he concluded that


2
  In re Bordley, 545 A.2d 619, 620 (Del. 1988).
3
  Id.
4
  Del. Supr. Ct. R. 9(a); Del. Supr. Ct. R. 9(b).
5
  Parker v. State, 205 A.2d 531, 533 (Del. 1964) (“It is clear to us that [the Court has] no power to
conduct hearings of any kind to determine the fact as to whether or not this transcript is a correct
recording of what took place at the trial….”).

                                              3
the transcript and the audio recording were essentially identical, with only

“insignificant, nonsubstantive and irrelevant [discrepancies], mostly relating to

pauses and [the like] made by the [Superior] Court during its ruling.”

      NOW, THEREFORE, IT IS ORDERED that the State’s motion to dismiss is

GRANTED. Montgomery’s petition for the issuance of a writ of mandamus is

DISMISSED.

                                       BY THE COURT:

                                       /s/ James T. Vaughn, Jr. ______________
                                       Justice




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