IMO Montgomery ( 2020 )

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
4