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• Title: Jay T. Smith v. State Delaware
• Author : Supreme Court of Delaware
• Release Date : January 09, 1989
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 59 KB

Description

MOORE, Justice. Jay Tee Smith appeals a decision of the Superior Court denying his motion for a new trial following his conviction on the
charges of Robbery First Degree and Conspiracy Second Degree. Among other arguments, Smith maintains that the prosecutor improperly
commented at trial upon the refusal of the appellant's brother, Robert Smith, an alleged co-conspirator and former co-defendant,
to be sworn and testify at the appellant's trial, and that such commentary constitutes impermissible and prejudicial error
under Fletcher v. State, 118 U.S. App. D.C. 137, 332 F.2d 724 (D.C. Cir. 1964). However, in our opinion the introduction of
such evidence before the jury is permissible under the rationale of DeShields v. State, Del. Supr., 534 A.2d 630, 641 (1987)
and Miller v. State, Del. Supr., 224 A.2d 592, 594-95 (1966). The State was entitled to comment upon the recalcitrance of
Smith's brother to be sworn and testify at the appellant's trial. Furthermore, in the absence of a constitutional privilege
justifying his refusal to testify, we conclude that the Superior Court should have summarily held Robert Smith in criminal
contempt under 11 Del.C. §§ 1271(1) and 1272. Accordingly, we affirm.

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