McNEILLY, Justice:
Defendants appeal their Superior Court jury convictions of assault with intent to commit murder (11 Del.C. § 577),
assault on a prison guard (11 Del.C. § 813(b)),
conspiracy to commit those crimes (11 Del.C. § 105),
and their sentences thereon. They contend that: (1) pretrial publicity prevented a fair trial; (2) their right of self-representation was violated; (3) certain evidence was erroneously admitted; (4) their wearing of prison garb, coupled with certain security measures, prevented a fair trial; and (5) presence on the jury of a juror who had a personal relationship with a prison guard prevented a fair trial.
I
The defendants, inmates of the Delaware Correctional Center, were charged with attacking a guard of that institution and stabbing him sixteen times. At trial, the guard identified four of the defendants as his assailants, while a fifth was identified as a co-conspirator; the defendants contended that the attack was perpetrated by other inmates. The jury convicted the defendants on all counts charged. We affirm.
II
The defendants’ first contention is that adverse pretrial publicity deprived them of their due process right to a fair trial by an unbiased jury. They cite several cases in support of this position, including
Sheppard v. Maxwell,
384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966);
Estes v. Texas,
381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965);
In re Murchison,
349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955);
United States ex rel. Clark v. Anderson,
D.Del., 356 F.Supp. 445 (1973), reversed on other grounds, 3 Cir., 502 F.2d 1080 (1974);
Commonwealth v. Pierce,
451 Pa. 190, 303 A.2d 209, cert. denied, 414 U. S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973).
In the instant case, we find that extensive
voir dire
of the ninety prospective jurors was conducted concerning pretrial publicity, prior communications about the case, and acquaintances with defendants, attorneys, witnesses, and employees of the Correctional Center. Those who responded to having knowledge of the pretrial publicity were questioned individually in Chambers; those few who responded to additional
voir dire
were questioned individually at side-bar. In each instance the Trial Judge questioned each prospective juror for possible prejudice, exercising his discretion liberally in excusing all who appeared to have any prior involvement or knowledge. During the questioning the defendants and all counsel were present, permitted to ask pertinent questions, and participated, outside the presence of the prospective jurors, in all conferences concerning excuse for cause.
We further note the presence of other factors militating against defendants’ contention that they did not receive a fair trial by an unbiased jury: (1) approximately six months elapsed between the
complained of publicity and trial; (2) defendants concede that no demonstrable jury bias or prejudice resulted from the pretrial publicity; (3) the Trial Judge in the exercise of extreme caution, permitted defendants thirty peremptory challenges, more than they used, and more than they were entitled to under Superior Court Criminal Rule 24(b).
We find
Sheppard, Estes, Murchison
and
Pierce
to be factually inapposite. In
Sheppard
the Trial Court failed to use any effort to take precautions against influence of pretrial publicity available to prospective jurors even during
voir dire
(reversal based on totality of circumstances including trial rulings); in
Estes
the Trial Court failed to control trial publicity accessible to the jury; in
Murchison
the Trial Judge sat in contempt proceedings in which the contempt charged had been committed before him as a so-called one-man grand jury; in
Pierce
the Trial Court refused to grant a motion for change of venue after the community, in which defendant was tried, had been informed by the prosecutors and police that defendant was a confessed “trig-german” with a past record of violent crimes, and exposed to pictures of a staged re-enactment of the crimes and other widespread publicity; but in
Clark,
the Court reviewed the totality of circumstances and, as in this case, found no likelihood of jury bias from the pretrial publicity.
In the recent decision of
Nebraska Press Association v. Stuart, 427
U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) holding that prior restraint of pretrial publicity is impermissible under the First Amendment, Chief Justice Burger stated:
“Cases such as these
(Sheppard
and
Estes)
are relatively rare, and we have held in other cases that trials have been fair in spite of widespread publicity. In
Stroble v. California,
343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 (1951), for example, the Court affirmed a conviction and death sentence challenged on the ground that pretrial news accounts, including the prosecutor’s release of the defendant’s recorded confession, were allegedly so inflammatory as to amount to a denial of due process. The Court disapproved of the prosecutor’s conduct, but noted that the publicity had receded some six weeks before trial, that the defendant had not moved for a change of venue, and that the confession had been found voluntary and admitted in evidence at trial. The Court also noted the thorough examination of jurors on
voir dire
and the careful review of the facts by the state courts, and held that petitioner had failed to demonstrate a denial of due process. See also
Murphy v. Florida, 421
U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975);
Beck v. Washington,
369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962).
“Taken together, these cases demonstrate that pretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial. * * *
“Most of the alternatives to prior restraint of publication in these circumstances were discussed with obvious approval in
Sheppard v. Maxwell,
384 U.S., at 357-362, 86 S.Ct.
Free access — add to your briefcase to read the full text and ask questions with AI
McNEILLY, Justice:
Defendants appeal their Superior Court jury convictions of assault with intent to commit murder (11 Del.C. § 577),
assault on a prison guard (11 Del.C. § 813(b)),
conspiracy to commit those crimes (11 Del.C. § 105),
and their sentences thereon. They contend that: (1) pretrial publicity prevented a fair trial; (2) their right of self-representation was violated; (3) certain evidence was erroneously admitted; (4) their wearing of prison garb, coupled with certain security measures, prevented a fair trial; and (5) presence on the jury of a juror who had a personal relationship with a prison guard prevented a fair trial.
I
The defendants, inmates of the Delaware Correctional Center, were charged with attacking a guard of that institution and stabbing him sixteen times. At trial, the guard identified four of the defendants as his assailants, while a fifth was identified as a co-conspirator; the defendants contended that the attack was perpetrated by other inmates. The jury convicted the defendants on all counts charged. We affirm.
II
The defendants’ first contention is that adverse pretrial publicity deprived them of their due process right to a fair trial by an unbiased jury. They cite several cases in support of this position, including
Sheppard v. Maxwell,
384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966);
Estes v. Texas,
381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965);
In re Murchison,
349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955);
United States ex rel. Clark v. Anderson,
D.Del., 356 F.Supp. 445 (1973), reversed on other grounds, 3 Cir., 502 F.2d 1080 (1974);
Commonwealth v. Pierce,
451 Pa. 190, 303 A.2d 209, cert. denied, 414 U. S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973).
In the instant case, we find that extensive
voir dire
of the ninety prospective jurors was conducted concerning pretrial publicity, prior communications about the case, and acquaintances with defendants, attorneys, witnesses, and employees of the Correctional Center. Those who responded to having knowledge of the pretrial publicity were questioned individually in Chambers; those few who responded to additional
voir dire
were questioned individually at side-bar. In each instance the Trial Judge questioned each prospective juror for possible prejudice, exercising his discretion liberally in excusing all who appeared to have any prior involvement or knowledge. During the questioning the defendants and all counsel were present, permitted to ask pertinent questions, and participated, outside the presence of the prospective jurors, in all conferences concerning excuse for cause.
We further note the presence of other factors militating against defendants’ contention that they did not receive a fair trial by an unbiased jury: (1) approximately six months elapsed between the
complained of publicity and trial; (2) defendants concede that no demonstrable jury bias or prejudice resulted from the pretrial publicity; (3) the Trial Judge in the exercise of extreme caution, permitted defendants thirty peremptory challenges, more than they used, and more than they were entitled to under Superior Court Criminal Rule 24(b).
We find
Sheppard, Estes, Murchison
and
Pierce
to be factually inapposite. In
Sheppard
the Trial Court failed to use any effort to take precautions against influence of pretrial publicity available to prospective jurors even during
voir dire
(reversal based on totality of circumstances including trial rulings); in
Estes
the Trial Court failed to control trial publicity accessible to the jury; in
Murchison
the Trial Judge sat in contempt proceedings in which the contempt charged had been committed before him as a so-called one-man grand jury; in
Pierce
the Trial Court refused to grant a motion for change of venue after the community, in which defendant was tried, had been informed by the prosecutors and police that defendant was a confessed “trig-german” with a past record of violent crimes, and exposed to pictures of a staged re-enactment of the crimes and other widespread publicity; but in
Clark,
the Court reviewed the totality of circumstances and, as in this case, found no likelihood of jury bias from the pretrial publicity.
In the recent decision of
Nebraska Press Association v. Stuart, 427
U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) holding that prior restraint of pretrial publicity is impermissible under the First Amendment, Chief Justice Burger stated:
“Cases such as these
(Sheppard
and
Estes)
are relatively rare, and we have held in other cases that trials have been fair in spite of widespread publicity. In
Stroble v. California,
343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 (1951), for example, the Court affirmed a conviction and death sentence challenged on the ground that pretrial news accounts, including the prosecutor’s release of the defendant’s recorded confession, were allegedly so inflammatory as to amount to a denial of due process. The Court disapproved of the prosecutor’s conduct, but noted that the publicity had receded some six weeks before trial, that the defendant had not moved for a change of venue, and that the confession had been found voluntary and admitted in evidence at trial. The Court also noted the thorough examination of jurors on
voir dire
and the careful review of the facts by the state courts, and held that petitioner had failed to demonstrate a denial of due process. See also
Murphy v. Florida, 421
U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975);
Beck v. Washington,
369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962).
“Taken together, these cases demonstrate that pretrial publicity — even pervasive, adverse publicity — does not inevitably lead to an unfair trial. * * *
“Most of the alternatives to prior restraint of publication in these circumstances were discussed with obvious approval in
Sheppard v. Maxwell,
384 U.S., at 357-362, 86 S.Ct. 1519-1522: (a) change of trial venue to a place less exposed to the intense publicity that seemed imminent in Lincoln County; (b) postponement of the trial to allow public attention to subside; (c) use of searching questioning of prospective ju
rors, as Chief Justice Marshall did in the
Burr
case, to screen out those with fixed opinions as to guilt or innocence; (d) the use of emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court. Sequestration of jurors is, of course, always available. Although that measure insulates jurors only after they are sworn, it also enhances the likelihood of dissipating the impact of pretrial publicity and emphasizes the elements of the jurors’ oaths.” 427 U.S. at 554, 563-564, 96 S.Ct. at 2800, 2805, 49 L.Ed.2d at 694-95, 700.
And in the concurring opinion of Mr. Justice Brennan, with whom Mr. Justice Stewart and Mr. Justice Marshall concurred, it is stated:
“And, more basically, there are adequate devices for screening from jury duty those individuals who have in fact been exposed to prejudicial pretrial publicity.
“ * * * In particular, the trial judge should employ the
voir dire
to probe fully into the effect of publicity. The judge should broadly explore such matters as the extent to which prospective jurors had read particular news accounts or whether they had heard about incriminating data such as an alleged confession or statements by purportedly reliable sources concerning the defendant’s guilt. See, e. g.,
Ham v. South Carolina,
409 U.S. 524, 531-534, 93 S.Ct. 848, 852-854, 35 L.Ed.2d 46 (1973) (opinion of Marshall, J.);
Swain v. Alabama,
380 U.S. 202, 209-222, 85 S.Ct. 824, 829-836, 13 L.Ed.2d 759 (1965). Particularly in cases of extensive publicity, defense counsel should be accorded more latitude in personally asking or tendering searching questions that might root out indications of bias, both to facilitate intelligent exercise of peremptory challenges and to help uncover factors that would dictate disqualification for cause. Indeed, it may sometimes be necessary to voir dire prospective jurors individually or in small groups, both to maximize the likelihood that members of the venire will respond honestly to questions concerning bias, and to avoid contaminating unbiased members of the ve-nire when other members disclose prior knowledge of prejudicial information. * * *
”
427 U.S. at 601, 602, 96 S.Ct. at 2822, 49 L.Ed.2d at 682-83.
We find no merit to defendants’ first contention.
Ill
Defendants assert that they had an absolute right to represent themselves at trial
(pro se),
which was violated by the Trial Court.
During a pretrial conference, the defendants expressed their desire not to be represented by court-appointed attorneys, but did not express an intention to represent themselves without the aid of counsel.
After further consideration, the defendants decided to use court-appointed counsel as
“amicus curiae”
and relied extensively on counsel throughout the trial.
In the recent case of
Faretta v. California,
422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that denial of a literate, competent, understanding, and voluntary request for
pro se
representation made weeks before trial, violated the Sixth and Fourteenth Amendments. The factual situation presented by this case varies greatly from that of
Faretta.
In
Faretta,
the defendant was denied any participation in his trial as counsel, 422 U.S. at 810-11, 95 S.Ct. at 2529, 45 L.Ed.2d at 568, while the record before us is replete with instances of defendants’ conduct of their defense and unequivocal statements from the Trial Court that their participation was permitted.
Defendant Johnson participated extensively in the trial, opening to the jury and cross-examining witnesses, and the other defendants also were permitted this opportunity.
This trial presented another dimension not present in
Faretta
— that of the disruptive defendant. On numerous occasions defendants uttered profanities and engaged in disruptive conduct. Defendants Payne and LeGrande were ejected from the courtroom several times; the Trial Court, however, made it clear that they could return whenever they would conform their conduct to acceptable standards. Standards required of members of the Bar must be adhered to by defendants undertaking their own defense, and gross deviations from those standards constitute a waiver of the right of self-representation. The Court in
Faretta
considered this issue:
“We are told that many criminal defendants representing themselves may use the courtroom for deliberate disruption of their trials. But the right of self-representation has been recognized from our beginnings by federal law and by most of the States, and no such result has thereby occurred. Moreover, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. * * * Of course, a State may — even over objection by the accused —appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary. * * * ” 422 U.S. at 834, n. 46, 95 S.Ct. at 2541 n. 46, 45 L.Ed.2d at 581 n. 46.
We find the defendants’ contention to be without merit,
IV
Defendants’ third contention is that admission into evidence of four homemade knives and the bloodstained shirt worn by the victim constituted reversible error because irrelevant (the knives) and inflammatory (the shirt).
A.
The knives were found shortly after the stabbing in two rooms located near the scene of the attack. Defendants argue that the knives were not relevant because no evidence established a direct link between the defendants and the knives. This argument is without merit, because, as the jury is permitted to draw inferences from circumstantial evidence,
Howard v. State,
Del.Supr., 303 A.2d 653, 657 (1973), weighing the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inferences.
Henry v. State,
Del.Supr., 298 A.2d 327, 330 (1972). Thus, whether the knives were those used in the assault was a matter for the determination of the jury. There was no error in their admission.
B.
The admission of the victim’s bloodstained shirt into evidence was similarly not erroneous. The shirt was relevant to illustrate the number and size of the cuts received by the victim and to establish a nexus between the knives and the assault by permitting the jury to match the
knives with the slits in the shirt. The record does not indicate that the shirt was used to inflame the jury, and the admission of a bloodstained shirt is not per se inflammatory.
Longoria v. State,
Del.Supr., 3 Storey 311, 168 A.2d 695, 703, cert. denied, 368 U.S. 10, 82 S.Ct. 18, 7 L.Ed.2d 18 (1961).
V.
Defendants next content that their presumption of innocence was impaired by the cumulative effect of their appearance in prison garb and certain security measures undertaken at the trial.
During a pretrial conference the Trial Court overruled Mr. Wise’ (attorney for defendant Henry) objection to trying the defendants in prison garb;
however, the Trial Court subsequently inquired, before the trial, whether the defendants had any personal clothing which they wished to wear and were not permitted to wear.
This inquiry by the Trial Court cured any possible error that might have resulted from its earlier ruling, placing the resolution of this issue within the parameters drawn by the Supreme Court in
Estelle v. Williams,
425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), where it was held that no Fourteenth Amendment violation resulted from the trial of a defendant in prison garb when no objection to the attire was made.
Furthermore, this case is distinguishable from
Williams,
as in that case the prison garb worn by the defendant was clearly identifiable as such, 425 U.S. at 503, 96 S. Ct. at 1692, 48 L.Ed.2d at 129, while the clothing worn by these defendants was not marked so as to be readily apparent as prison garb.
Additionally, the defendants here were on trial for a crime allegedly committed in prison, making their identity as prisoners a fact which they could not have concealed from the jury, while in
Williams
the defendant was not an inmate when accused. We quote from
United States ex rel. Stahl v. Henderson,
5th Cir., 472 F.2d 556, cert. denied, 411 U.S. 971, 93 S.Ct. 2166, 36 L.Ed.2d 694 (1973);
“Stahl’s complaint of being tried in prison garb, if indeed he was, gives us little pause. He was on trial for the murder of a fellow inmate in the Louisiana State Prison where prison garb was Stahl’s normal attire. The jury necessarily knew that he was a prison inmate both at the time that he was alleged to have committed the crime and at the time of the trial. No prejudice can result from seeing that which is already known. * * * ”
472 F.2d at 557.
The defendants’ contention that the security precautions undertaken at the trial impaired their presumption of innocence is similarly without merit. The Trial Court limited the number of uniformed officers present in the courtroom to six and strived to maintain this number in the face of disruptive tactics of the defendants and spectators. A metal detector installed at the door of the courtroom was kept from the knowledge of the jurors—its efficacy was demonstrated by the refusal of certain spectators to pass through it. The security measures, of themselves, or when considered in the context of the defendants’ garb, did not impair the defendants’ presumption of innocence.
VI
Defendants’ final contention is that the presence on the jury for nine days of a juror who had a personal relationship with a prison guard constituted reversible error.
The Trial Court held an evidentiary hearing on the matter upon its being brought to the Court’s attention. A witness at the hearing testified that she saw the guard and the juror recognize and wave to one another in the presence of other jurors, outside the courtroom. The guard testified that he had known the juror for seven years; that his son played with the juror’s son; that he was at the Court House and active in connection with other trials during this trial; that he recognized and spoke a word of greeting to the juror on the occasion in question; that he was in uniform when the incident occurred, and that his only connection with this trial pertained to security measures outside the courtroom and escorting an inmate witness from the courtroom. The Court then denied defendants’ motion for a mistrial on the grounds there was no showing of prejudice, but agreed to question the juror on the matter. The juror stated that he had in no way communicated his relationship with the guard to the other jurors and that the other jurors were unaware of the greeting that passed between them. The Trial Court, at the request of the defense, struck the juror from the panel, replacing him with an alternate.
This case differs markedly from
Turner v. Louisiana,
379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), where a murder conviction was reversed because two principal prosecution witnesses, deputy sheriffs, “ate with [the jurors], conversed with them, and did errands for them.” 379 U.S. at 468, 85 S.Ct. at 547, 13 L.Ed.2d at 426. The
Turner
Court contrasted that relationship with a brief encounter, the situation presented here. 379 U.S. at 473, 85 S.Ct. at 550, 13 L.Ed.2d at 429.
We agree with the Trial Court that no prejudice resulted from the juror’s presence on the jury .and that removal was the proper remedy upon discovery of the relationship.
Affirmed.