Claudio v. State

The defendants-appellants, Carmelo Claudio (“Claudio”) and Enrique Maymi (“Maymi”), appeal their convictions, following a joint trial before a jury, in the Superi- or Court. Both defendants were convicted, as charged, of Robbery in the First Degree, four counts of Possession of a Deadly Weapon During the Commission of a Felony, two counts of Conspiracy in the First Degree and one count each of Murder in the First Degree and Attempted Murder in the First Degree. These charges arose out of a series of events which transpired during the early morning hours of February 14, 1987.

Following a penalty hearing, the jury was unable to reach a unanimous decision to recommend the imposition of a death sentence for either defendant. Claudio and Maymi were each sentenced to serve a life term, without probation or parole for the conviction of Murder in the First Degree. Each defendant received a second life sentence, albeit with the possibility of probation or parole, for the conviction of Attempted Murder in the First Degree. Each defendant was also sentenced to an additional forty-five years of imprisonment for the remaining offenses. All of the sentences are to be served consecutively by Claudio and Maymi.

The direct appeals of these two defendants were filed separately in this Court. However, because Claudio and Maymi were tried jointly in the Superior Court and, since the claims presented on appeal are identical, their cases have been consolidated. The defendants each raise the same three issues for our review. First, that the trial judge erred in not giving an immediate curative instruction or declaring a mistrial after sustaining an evidentiary objection by the defense. Second, that the trial judge gave an incorrect and confusing instruction on accomplice liability. Third, that the trial judge improperly substituted an alternate juror for a regular juror after deliberations had begun. We find no reversible error in the Superior Court proceedings. Therefore, we affirm all of the convictions of each defendant.

BASIC FACTS

On Friday, February 13, 1987, the victims, Juan Soto (“Soto”) and Rafael Lopez (“Lopez”), were paid by their employers. They decided to go to a bar to listen to Spanish music. An acquaintance drove them from Avondale, Pennsylvania to the Spinning Wheel Inn, a tavern near Kaolin, Pennsylvania. Soto and Lopez arrived at the Spinning Wheel at approximately 7:00 p.m. They remained at the tavern until shortly before closing at 1:30 a.m. on February 14.

Since they did not have a ride home, they began to ask other patrons for transportation back to Avondale. Their initial efforts were unsuccessful. Soto and Lopez then walked outside the tavern where they saw two men, later identified as the defendants, Claudio and Maymi, sitting in a car. Lopez *1280 asked the defendants if they could give him and Soto a ride back to Avondale. The defendants agreed in return for ten dollars for gas. Lopez gave the defendants ten dollars, and accompanied by Soto, left the Spinning Wheel parking lot in the defendants’ car. Maymi was driving. Claudio was beside him. Soto and Lopez were both on the back seat.

Upon leaving the Spinning Wheel parking lot, Maymi turned left onto Route 41 towards Delaware, instead of right towards Avondale as Lopez and Soto had requested. A short time later, the defendants’ vehicle turned from Route 41 onto Centerville Road near Hockessin, Delaware. There Maymi stopped the car. Claudio demanded that Soto and Lopez hand over all of their money. Soto exited the car and attempted to flee. However, Claudio struck Soto in the face twice and then stabbed him in the chest. Soto fell to the ground and Claudio removed several hundred dollars from his pockets. While on the ground, Soto heard Lopez scuffling with both of the defendants. He then heard the car drive away.

Detective John Downs (“Downs”) of the New Castle County Police arrived at the crime scene early on the morning of Saturday, February 14. Lopez’s dead body was on the side of the road. There was also evidence that another injured person had left the crime scene. Soto was discovered later that afternoon a short distance from where the attack had occurred. He was taken to Christiana hospital. While at the hospital, Soto, who spoke little English, was questioned by Downs through an interpreter about the attack. Soto gave his account of the events of the previous evening, which included a detailed description of the two assailants.

After speaking with Soto, Downs returned to the Spinning Wheel Inn. There, he questioned a female bartender about Soto and Lopez. She told Downs that both Lopez and Soto had been at the Spinning Wheel the previous evening. She recalled that they had asked her for a ride home. After she declined their request, she saw Lopez and Soto attempting to solicit a ride from two men. She described those men for Downs.

The police investigation resulted in information which indicated that Soto and Lopez had left the Spinning Wheel Inn in a car with Claudio and Maymi. Soto was able to pick both of the defendants out of a photographic line-up. The police arrested Claudio and Maymi on February 20,1987. Both of them were subsequently indicted on charges of Murder in the First Degree and the related felonies. At trial, Soto identified Maymi and Claudio as the assailants.

INSTRUCTION ON INADMISSIBLE EVIDENCE

The defendants’ first contention on appeal is that the trial judge erred in not giving an immediate curative instruction or declaring a mistrial, after sustaining a defense objection to the State’s request to admit two kitchen knives into evidence. Those knives had been seized by the police from under the mattress in the master bedroom of Maymi’s home. The State did not contend that the two knives were the weapons used to assault Lopez and Soto. The State acknowledges that the knife or knives used in this incident were never discovered. However, the State argued that the two knives found under the mattress in the bedroom of Maymi’s home were admissible to infer that Maymi had a proclivity to possess knives. 1

Counsel for Maymi objected to the admission of the two knives on grounds of relevance. The trial judge sustained that objection. Counsel for Maymi then requested that a curative instruction be given to the jury immediately. In response to that request, the State continued to argue the *1281 relevance of the knives. 2 The trial judge reiterated his ruling that the knives were not admissible as evidence. 3 However, no curative instruction was given to the jury by the trial judge at that time.

At a later time in the trial, counsel for Claudio moved for a mistrial. He asserted that the trial judge’s prior failure to give a contemporaneous curative instruction and the State’s argument that the knives were relevant to show a proclivity on the part of Maymi, and by implication Claudio, to carry and use knives was highly prejudicial. The trial judge denied the motion for a mistrial. However, in his final charge, the trial judge did instruct the jury that “[a]ny offer of evidence that has been rejected by me ... must not [be] considered].”

The defendants argue that, although the two kitchen knives were not entered into evidence, they were prejudiced by the display of those knives and the State’s argument on their admissibility before the jury. The defendants submit that prejudice was not cured by the trial judge’s subsequent instruction in the final charge to the jury.

The mere fact that an evidentiary objection is sustained does not make the attempt to introduce inadmissible evidence prejudicial per se. See Bennett v. State, Del.Supr., 164 A.2d 442, 446 (1960). In this case, a contemporaneous instruction might have been preferable. Cf. Boatson v. State, Del.Supr., 457 A.2d 738, 743 (1983). However, we find that the trial judge did not abuse his discretion in declining the defense request for an immediate curative instruction. Compare Bromwell v. State, Del.Supr., 427 A.2d 884, 892-93 (1981). We are satisfied the instruction ultimately given by the trial judge to disregard any offer of any evidence which had been rejected by the court effectively removed any potentially prejudicial effect caused by the State’s attempt to offer the two knives into evidence. 4 The Superior Court’s decision to deny the defense motion for a mistrial is affirmed. See Shantz v. State, Del.Supr., 344 A.2d 245, 247 (1975).

ACCOMPLICE LIABILITY INSTRUCTION

The defendants’ second claim of error involves the instruction given to the jury by the trial judge concerning felony murder and accomplice liability. The trial judge declined to instruct the jury on the issue of accomplice liability in the form requested by the defense. Over the defendants’ objections, the trial judge instructed the jury, in part, as follows:

Now, there is another rule of law which has application here. It is the law that all persons who join together with a common intent and purpose to commit an *1282 unlawful act which, in itself, makes it not improbable that a crime not specifically agreed upon in advance might be committed, are responsible equally as principals for the commission of such an incidental or consequential crime, whenever the second crime is one in furtherance of or in aid to the originally contemplated unlawful act.

The defendants contend that, in defining accomplice liability, the trial judge used language which misstated the present substantive law as set forth in 11 Del.C. § 271. 5 They also claim that the trial judge’s use of a double negative in describing the natural and probable consequences of the conduct of one defendant as attributable to the other defendant misled the jury.

A defendant has no right to have the jury instructed in a particular form. However, a defendant is entitled to have the jury instructed with a correct statement of the substantive law. Miller v. State, Del.Supr., 224 A.2d 592, 596 (1966). In addressing the issue of accomplice liability, this Court has said:

The inquiry under § 271 is not whether each accomplice had the specific intent to commit murder, but whether he intended to promote or facilitate the principal’s conduct constituting the offense. The defendants did not have to specifically intend that the result, a killing, should occur. As long as the result was a foreseeable consequence of the underlying felonious conduct their intent as accomplices includes the intent to facilitate the happening of this result.

Hooks v. State, Del.Supr., 416 A.2d 189, 197 (1980), cited with approval in Martin v. State, Del.Supr., 433 A.2d 1025, 1029 (1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982). Thus, Delaware law requires the jury to unanimously find that a principal-accomplice relationship existed between the participants with respect to a particular charge, e.g., in this case, robbery at knife point. Probst v. State, Del.Supr., 547 A.2d 114, 123 (1988). However, the jury is not required thereafter to find that the defendants specifically intended the result of a consequential crime which occurs, e.g., in this case, murder and attempted murder. Id. In Martin, for example, the defendants originally agreed to burglarize a home for the purpose of stealing weapons. Martin v. State, 433 A.2d at 1028. This Court held that both were properly charged, pursuant to 11 Del.C. § 271, with the murder committed in furtherance of the burglary to steal weapons.

The facts in the record reflect that Claudio and Maymi were together at the time of the fatal stabbing. There is some dispute as to which of the two defendants inflicted the fatal wounds upon Lopez. However, there appears to be no question that the defendants conspired to rob the decedent, Lopez, and his companion, Soto, on the night in question at knife point. The instruction on accomplice liability which was given in this case, correctly informed the jury that, if it unanimously concluded that the defendants agreed to rob the victims at knife point, either defendant might have functioned as an accomplice who intended to promote or facilitate the subsequent acts of the other defendant as a principal and both were equally guilty of the consequential crimes of murder and attempted murder. We find that the instruction on accomplice liability which was given in this case, considered as a whole, was a correct statement of the present substantive law. See Probst v. State, Del. Supr., 547 A.2d 114 (1988); Martin v. State, 433 A.2d at 1029; and Hooks v. State, 416 A.2d at 197.

The defendants also contend that the jury was misled because the trial judge used a double negative in the instruction on accomplice liability. A trial judge’s charge to the jury will not serve as grounds for reversible error if it is “reasonably informative and not misleading, judged by com *1283 mon practices and standards of verbal communication.” Baker v. Reid, Del.Supr., 57 A.2d 103, 109 (1947), quoted in Sheeran v. State, Del.Supr., 526 A.2d 886, 894 (1987). In evaluating “the propriety of a jury charge, the entire instruction must be considered with no statement to be viewed in a vacuum.” Id. at 109 (citation omitted). The instruction given by the trial judge in this case was somewhat awkward in its phraseology. However, we are satisfied that the use of a double negative did not undermine the ability of the jury “to intelligently perform its duty in returning a verdict.” Storey v. Castner, Del.Supr., 314 A.2d 187, 194 (1973).

PROCEDURAL FACTS

SUBSTITUTION OF ALTERNATE JUROR DURING DELIBERATIONS

The defendants’ third claim of error presents a novel question in this jurisdiction. The defendants contend that the trial judge improperly substituted an alternate juror for a regular juror after the jury’s deliberations had begun. Before the twelve jurors retired to deliberate on the guilt/innocence phase of the trial, the trial judge read his instructions to the twelve regular jurors and the three alternates. 6 When the jury had not reached a verdict at 5:00 p.m., it was sequestered separately as required by 11 Del.C. § 4209(b). 7

The jury began its deliberations at approximately 10:30 a.m. on December 1, 1987. During the first day of deliberations, the jury requested a view of the face of the defendant, Claudio. The trial judge acceded to this request. The twelve jurors and the three alternates were brought back into the courtroom to view Claudio. When the jury had not reached a verdict at 5:00 p.m., it was sequestered for the night.

During the night, one of the regular jurors became ill. The next morning, December 2, he was excused by the trial judge. The trial judge decided to replace the ill juror with one of the alternates, who had been separately sequestered during the first day of deliberations. Defense counsel moved for a mistrial. That motion was denied.

The judge asked the three alternates if they had discussed the case among themselves during their sequestration. 8 The alternates stated they had not discussed the case. The trial judge then permitted the first alternate to become a member of the regular jury in place of the incapacitated juror. Thereafter, the trial judge gave a special instruction to the reconstituted jury. In particular, he instructed the jury to begin its deliberations anew and emphasized the importance of the alternate familiarizing herself with the views of the other eleven jurors. 9

*1284 The reconstituted jury began its deliberations at approximately 9:30 a.m. It deliberated until approximately 5:00 that evening, breaking only for lunch. The jury reconvened at approximately 10:00 a.m. on December 3. It deliberated until it took a break for lunch at noon. The jury continued deliberating after lunch. At approximately 2:00 p.m., the jury indicated that it had arrived at verdicts on all charges. Thus, the jury deliberated six and one-half hours prior to the substitution of the alternate juror and the reconstituted jury deliberated “anew” for approximately nine and one-half hours. 10

SUPERIOR COURT CRIMINAL RULE 24(c)

SUBSTITUTION OF ALTERNATE JUROR DURING DELIBERATIONS

The defendants argue that the trial court’s substitution of an alternate juror after the jury had retired to deliberate was in contravention of Superior Court Criminal Rule 24(c). 11 The defendants correctly note *1285 that Rule 24(c) only permits the replacement of regular jurors by alternates “prior to ” deliberation. It is clear, as the State concedes, that the trial judge’s action in replacing a regular juror with an alternate during deliberations was contrary to the strictures of Rule 24(c). The State maintains, however, that such error was harmless since it did not result in any demonstrable prejudice to the defendants.

Appellate courts which have considered the effect of violations of the federal counterpart of Rule 24(c) have reached differing results. An apparent majority have held that a trial court’s violation of Rule 24(c) does not constitute reversible error where no prejudice to the defendant is established. United States v. Hillard, 701 F.2d 1052 (2nd Cir.1983), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983); United States v. Kopituk, 690 F.2d 1289 (11th Cir.1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2089, 77 L.Ed.2d 300 (1983); United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); and Henderson v. Lane, 613 F.2d 175 (7th Cir. 1980), cert. denied, 446 U.S. 986, 100 S.Ct. 2971, 64 L.Ed.2d 844 (1980).

Other courts have held that violations of the federal counterpart of Rule 24(c) result in prejudice which constitutes reversible error. United States v. Lamb, 529 F.2d 1153 (9th Cir.1975). 12 See also, Bulls v. United States, D.C.Supr., 490 A.2d 197 (1985) (substitution of alternate for regular juror in violation of Criminal Rule 24(c) is reversible error unless government proves beyond a reasonable doubt that the defendant suffered no prejudice); and People v. Barnes, 58 A.D.2d 608, 395 N.Y.S.2d 232 (1977) (substitution of alternate for regular juror after deliberations had begun without defendant’s consent resulted in prejudicial error).

We find that a proper examination of the defendants’ Rule 24(c) argument is subsumed within a review of their constitutional claims. Claudio and Maymi contend that, apart from a literal violation of Superior Court Criminal Rule 24(c) 13 , the substitution of an alternate juror after the beginning of deliberations, violated their rights to trial by jury as guaranteed by the federal and the Delaware Constitutions. We will examine their arguments based upon the Delaware and the United States Constitutions separately.

UNITED STATES CONSTITUTION

SUBSTITUTION OF ALTERNATE JUROR DURING DELIBERATIONS

The United States Supreme Court has never directly addressed whether the right to trial by jury, as it is guaranteed by the federal Constitution, would be violated by the substitution of an alternate juror during the deliberative process. However, *1286 it did question the desirability and the constitutionality of such a procedure in 1942, when the Federal Rules Advisory Committee proposed to amend Criminal Rule 24 to permit the substitution of an alternate juror during deliberations. Orfield, Trial Jurors in Federal Criminal Cases, 29 F.R.D. 43, 46 (1962). In fact, the proposal to permit the substitution of an alternate juror during deliberations was abandoned by the Federal Rules Committee, after it was questioned by the United States Supreme Court. 29 F.R.D. at 50.

Subsequent proposals to permit the substitution of an alternate juror during deliberations have been consistently rejected by the Federal Rules Committee, 14 the ABA’s Standards for Criminal Justice, 15 and some courts. 16 Notwithstanding these rejections and the United States Supreme Court’s earlier expression of concern, several federal courts have held that the substitution of an alternate juror during deliberations is not violative of the right to trial by jury, which is secured by the Sixth Amendment to the federal Constitution. See United States v. Hillard, 701 F.2d 1052 (2nd Cir.1983), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983); United States v. Kopituk, 690 F.2d 1289 (11th Cir.1982), cert. denied, 461 U.S. 928, 103 S.Ct. 2089, 77 L.Ed.2d 300 (1983); United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); and Henderson v. Lane, 613 F.2d 175 (7th Cir.1980), cert. denied, 446 U.S. 986, 100 S.Ct. 2971, 64 L.Ed.2d 844 (1980). Those federal court rulings have upheld the constitutionality of the substitution of an alternate juror during deliberations through an application of the “essential feature” concept of the right to trial by jury, which is guaranteed by the United States Constitution, as that concept was formulated by the Supreme Court in Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26 L.Ed.2d 446 (1970).

In Hillard, after the jury had deliberated for two and one-half days, followed by a three-day holiday recess, the trial court substituted an alternate juror for a regular juror who became ill. United States v. Hillard, 701 F.2d at 1054-55. The trial court had separately sequestered the two alternates during the jury’s deliberations, rather than discharging them as required *1287 by Federal Rule of Criminal Procedure 24(c). Id. at 1055. Although separated from the regular jurors, the alternates joined the jury whenever it returned to the courtroom to hear testimony or to receive additional instructions. 17 Id.

In Hillard, on appeal, it was contended that the substitution of the alternate juror violated the defendant’s Sixth Amendment rights and the plain language of Federal Rule of Criminal Procedure 24(c). In addressing the federal constitutionality of the substitution procedure, the appellate court in Hillard considered the following facts: 1) the alternates were chosen with, and by the same procedures as, regular jurors; 2) the alternates heard all the evidence and instructions of law with the regular jurors; 3) the alternate chosen to replace the dismissed juror reaffirmed his ability to consider evidence and to deliberate fairly and fully, and indicated his discussion with the other alternate did not change his view of the case; 4) the trial judge instructed the newly constituted jury to begin deliberations anew; and 5) the jury deliberated for a considerable amount of time after the substitution and made considerable requests for exhibits, testimony and instruction. Id. at 1056-57.

The appellate court in Hillard then considered whether these factors had preserved the “essential feature” of the jury, defined by the United States Supreme Court as:

the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.

Id. at 1056 (quoting Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 L.Ed.2d 446 (1970)). The court found that the facts before it suggested that the jury’s “verdict was the product of the thought and mutual deliberation” of all twelve post-substitution jurors. Id. at 1057. Under the circumstances presented, it held that there was no violation of the United States Constitution. Id.

We have concluded that Claudio and Maymi’s challenge to the substitution of an alternate juror during deliberations under the Sixth Amendment to the federal Constitution cannot prevail, albeit on alternative grounds, in the absence of any definitive decision by the United States Supreme Court. First, it fails, assuming arguendo, that the United States Supreme Court would concur with the interpretation of the United States Constitution by those federal courts which have concluded that the substitution of an alternate juror during deliberations is not violative of an “essential feature” of the right to trial by jury, as it is guaranteed by the Sixth Amendment. 18 See United States v. Hillard, 701 F.2d 1052 (2nd Cir.1983), cert. denied, 461 U.S. 958, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983); United States v. Kopituk, 690 F.2d 1289 (11th Cir.1982), cert. denied, 461 U.S. 928, *1288 103 S.Ct. 2089, 77 L.Ed.2d 300 (1983); United States v. Phillips, 664 F.2d 971 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982); and Henderson v. Lane, 613 F.2d 175 (7th Cir. 1980), cert. denied, 446 U.S. 986, 100 S.Ct. 2971, 64 L.Ed.2d 844 (1980).

The alternative basis for this Court’s rejection of Claudio and Maymi’s federal Constitutional challenge requires a brief explanation. The United States Supreme Court has held that although the federal Constitution does not preserve the common law right to a jury of twelve persons 19 or the common law right to a unanimous jury verdict 20 , it has preserved the inviolate nature of the jury’s deliberative process at common law. In Williams, the essential feature of a jury is described as:

the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.

399 U.S. at 100, 90 S.Ct. at 1906 (emphasis added).

The paramount importance which the United States Supreme Court attributes to the deliberative process of the jury, as it existed at common law, is reinforced by that Court’s subsequent action. In 1981, more than a decade after the decision in Williams concluded that the federal Constitution did not preserve all of the common law features of jury trials in criminal cases, the Federal Rules Committee presented the United States Supreme Court with two solutions to the problem caused by excusing a juror during the deliberative process. First, to amend Rule 23(b) to permit an eleven-juror verdict at the discretion of the trial judge, even in the absence of the defendant’s consent. Second, to amend Rule 24(c) to permit the substitution of an alternate juror during deliberations, provided that the trial judge instructs the jury to begin its deliberations anew. Amendments to Rules, Advisory Committee Note on Rule 23(b), 97 F.R.D. 245, 262 (1983). The Committee expressed a strong preference for the first alternative. Id. 21 United States v. Hillard, 701 F.2d 1052, 1060 (2nd Cir.1983).

Neither of the alternatives presented by the Federal Rules Committee in 1981 would have been permitted at common law. 22 In the context of this case, it is significant that the United States Supreme Court followed the Committee’s recommendation. 23 It approved the proposed amendment to Rule 23, which gave the trial judge discretion to accept a verdict by the remaining eleven jurors, even in the absence of the defendant’s consent, in the event of post-submission discharge of a regular juror, rather than the proposal to permit the substitution of an alternate. 97 F.R.D. at 253.

*1289 Thus, the sine qua non of the “essential feature” of right to a trial by jury in a criminal proceeding appears to be the common law inviolability of the jury’s deliberative process. Bulls v. United States, 490 A.2d at 202. 24 If such a construction of the federal Constitution is correct, the United States Supreme Court will ultimately hold specifically that the substitution of an alternate juror during deliberations is in derogation of an “essential feature” of the right to trial by jury which the United States Constitution guarantees. Nevertheless, we are confident it would conclude that the violation of the federal Constitution in this case was harmless beyond a reasonable doubt, for the same reasons hereinafter stated with respect to the construction of the Delaware Constitution. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); and Bulls v. United States, 490 A.2d at 202.

DELAWARE CONSTITUTION

SUBSTITUTION OF ALTERNATE JUROR DURING DELIBERATIONS

Claudio and Maymi also contend that the substitution of an alternate juror during the deliberative process violates their right to trial by jury, as it is guaranteed by the Delaware Constitution. The constitutions adopted by the original States and “the constitution of every State entering the Union thereafter, in one form or another,” have protected the right to trial by jury in criminal cases. Duncan v. State of Louisiana, 391 U.S. 145, 153, 88 S.Ct. 1444, 1449, 20 L.Ed.2d 491 (1968). “The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered.” Id. at 155, 88 S.Ct. at 1451 (emphasis added). 25

The Delaware Constitution is not a mirror image of the United States Constitution. Sanders v. State, Del.Supr., 585 A.2d 117 (1990). The right to a trial by jury in the Delaware Constitution is not phrased identically to its corollary in the original federal Constitution or the federal Bill of Rights. Del. Const, art. I, §§ 4 26 & 7 27 ; U.S. Const, art. Ill 28 and amend. 6 29 . A review of the history and origin of the right to trial by jury in the Delaware Con *1290 stitution, vis-a-vis the history and origins of that right in the United States Constitution, reveals that the differences in phraseology between the Delaware and the federal right to trial by jury are not merely stylistic. There is, in fact, a significant substantive difference in that historic right, as it has been preserved for Delaware’s citizens.

Delaware History of Jury Trials

The right to trial by jury which is prov