Allen v. State
Allen v. State
Dissenting Opinion
dissenting, with whom BERGER, Justice, joins.
Section 274 of Title 11 provides:
When, pursuant to § 271 of this title, 2 or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of an offense of such degree as is compatible with that person’s own culpable mental state and with that person’s own accountability for an aggravating fact or circumstance.74
The majority finds in Section 274 an unambiguous statutory mandate to instruct the jury to determine Allen’s individual “mental state” and “accountability for an aggravating fact or circumstance” on the charges of Robbery in the First Degree, Burglary in the Second Degree, and Aggravated Menacing. We respectfully disagree and dissent from that holding.
Section 274 does not apply to the charge of Aggravated Menacing. Aggravated Menacing is not divided into degrees, a necessary predicate for the application of
Nor does Section 274 apply to the charge of Robbery in the First Degree. While our criminal code does divide the crime of robbery into two degrees, the culpable mental state for both is intentional conduct. We have so held in four cases which found Section 274 inapplicable.
What is novel about Allen’s argument is the focus on the phrase “own accountability for an aggravating fact or circumstance.” If this accountability is to be determined as a matter of fact, then the jury has a responsibility to decide it.
The Robbery in the First Degree statute provides, in pertinent part, that “[a] person is guilty of robbery in the first degree when the person commits the crime of robbery in the second degree and when, in the course of the commission of the crime or of immediate flight therefrom, the person or another participant in the crime ... [displays what appears to be a deadly weapon.”
The source of Delaware’s robbery statutes is New York’s Penal Law §§ 160.00, .05, and .15.
[T]he only result proscribed by the robbery statutes is the forcible taking of another’s property and it is this act that the law proscribes regardless of the attendant circumstances. It is the robber’s intent — or “conscious objective”— to permanently deprive the victim of property by compelling the victim to give up property or quashing any resistance to that act that is prohibited by law. However, when an attendant circumstance to the robbery is the causing of serious physical injury to a nonparticipant, Penal Law § 160.15(1) imposes strict liability.83
More recently, in interpreting the statute and building upon Miller, the New York Supreme Court, Appellate Division found that:
Where a defendant’s guilt of robbery in the first degree “is predicated upon the forcible taking of property, coupled with the aggravating factor of any participant in the crime being armed with a deadly weapon ... the defendant’s knowledge that an accomplice was armed with a deadly weapon is not an element of robbery in the first degree.” In such a case, “lack of proof of the defendant’s knowledge that a [deadly weapon] would be used was immaterial.” Accordingly, the court correctly instructed the jurors that if they found, beyond a reasonable doubt, that the defendant “had the mental culpability required for the commission of the crime of robbery, which is forcibly stealing,” and that “another person involved in this crime of robbery use[d] or threatened] the immediate use of a dangerous instrument,” they should find the defendant guilty, “even if [the defendant] did not know a dangerous instrument was to be used.”84
The rationale of these cases is persuasive.
The same analysis applies to the charge of Burglary in the Second Degree. The statute also imposes accountability upon a defendant when “another participant in the crime” is armed with a deadly weapon.
The majority seeks to distinguish the relevance of the New York cases by focusing on the absence of “except as otherwise provided by statute” language in the New York equivalent of Section 274. The New York decisions did not rely upon that language. Moreover, the phrase “Except as otherwise expressly provided in this chapter” is merely an express reaffirmance of
By the express terms of our robbery and burglary statutes, Allen is accountable for the display of a gun by his co-defendant. On that point, there is nothing for a jury to decide except for whether a gun was displayed by Allen or another participant in the crime. An instruction for the jury to do so was included in the charge to the jury. Accordingly, the Superior Court did not err when it refused to give a Section 274 instruction.
We respectfully dissent.
. 11 Del. C. § 274
. We also note that the majority opinion has not defined what would make Allen "accountable” under Section 274.
. The prosecutor’s statements referring Allen’s financial status were improper, but harmless because they were promptly and adequately remedied by the court and neither caused the juiy to ignore its role as factfinder and final arbiter of witness credibility nor brought into doubt the integrity of the trial as a whole. See Justice v. State, 947 A.2d 1097, 1101 (Del. 2008); Hughes v. State, 437 A.2d 559, 571 (Del. 1981). The trial court’s failure to give a Weber instruction on the kidnapping charge did not rise to a plain error because the evidence presented to the jury established that there was substantially more interference with the victim's liberty that was ordinarily incident to the underlying crimes involved. See Raiford v. State, 667 A.2d 1320 (Del. 1995). The lack of a separate hearing on Allen’s habitual offender status following his second trial was harmless because he previously had been given a separate hearing and been declared an habitual offender following his first trial.
. 805 A.2d 872, 874 (Del. 2002)
. Scott v. State, 962 A.2d 257, 2008 WL 4717162, at *1 (Del. Oct.28, 2008) (Table) (''[T]he offenses of first degree robbery and second degree robbery require proof of the same mental state. Accordingly, there is no basis for the [§ 274] instruction...."); Johnson v. State, 947 A.2d 1121, 2008 WL 1778241, at *2 (Del. 2008) (Table) (''[T]he offenses of first degree robbery and second degree robbery require proof of the same mental state. Accordingly, there was no basis for the [§ 274] instruction....”); Richardson v. State, 931 A.2d 437, 2007 WL 2111092, at *2 (Del. 2007) (Table) ("First degree robbery, second degree robbery and attempted murder all require intentional conduct. Because the underlying offenses in this case all require the same mens rea, the requested [§ 274] instruction was properly denied.”); Coleman v. State, 765 A.2d 950, 2000 WL 1840511 (Del. 2000) (Table) ("First degree robbery and second degree robbery require the same mens rea of intentional conduct. Therefore, § 274 is not applicable.”).
. Del. Const. art. IV, § 19.
. 11 Del. C. § 832(a).
. In Chance v. State, 685 A.2d 351, 355 (Del. 1996), we recognized the connection between certain provisions of the Delaware Criminal Code and the Model Penal Code and New York’s Penal Law by using Appendix C to the Proposed Delaware Criminal Code with Commentary (1967). Appendix C provides a "Table of Sources of Proposed Delaware Criminal Code” "offered to assist the Bench and Bar in interpreting the provisions of the Code.” The appendix indicates that New York Penal Law §§ 160.00, .05, .15 were the source of our current robbery statutes. Id. at app. C; see also Delaware Criminal Code with Commentary § 101 (1973).
. Compare 11 Del. C. § 831 with N.Y. Penal Law § 160.15. The drafters "expect[ed] that case law in other jurisdictions using similar sources will be helpful aids in construing the proposed provisions.” Proposed Delaware Criminal Code with Commentary app. c (1967).
. People v. Miller, 87 N.Y.2d 211, 638 N.Y.S.2d 577, 661 N.E.2d 1358, 1362-63 (1995).
. People v. Murad, 55 A.D.3d 754, 865 N.Y.S.2d 331, 2008 WL 4594101, at *1 (2008) (quoting People v. Foster, 33 A.D.3d 814, 826 N.Y.S.2d 288, 289 (2006); People v. Garcia, 302 A.D.2d 474, 753 N.Y.S.2d 754, 755 (2003)) (citing People v. Murdough, 287 A.D.2d 658, 733 N.Y.S.2d 78 (2001))
. 11 Del. C. § 825; see also 11 Del. C. § 824 (defining the crime of burglary in the third degree).
. See, e.g., Clark v. State, 957 A.2d 1, 2008 WL 3906890, at *5 n. 19 (Del. 2008) (Table); State v. Cook, 600 A.2d 352, 355 n. 6 (Del. 1991); Blue Cross & Blue Shield of Del., Inc. v. Elliott, 449 A.2d 267, 270 (Del. 1982).
Opinion of the Court
The defendant-appellant, James Allen, appeals his Superior Court conviction on various charges arising from three separate incidents. Allen raises five arguments on appeal. First, Allen contends that the Superior Court erred by refusing his request to instruct the jury pursuant to Title 11, section 274 of the Delaware Code.
We have concluded that all of Allen’s convictions must be reversed because of the Superior Court’s failure to instruct the jury in accordance with section 274. Therefore, this matter is remanded for further proceedings in accordance with this opinion.
Procedural History
Allen was indicted on numerous charges arising from three separate incidents, which took place on May 31, 2002, August 12, 2002, and August 27, 2002.
We remanded the case for a new trial and a jury found Allen guilty of all charges except Attempted Robbery in the First Degree and Conspiracy in the Second Degree as to the August 27, 2002, incident. Subsequently, the State filed a Motion to Declare Defendant a Habitual Offender, which the Superior Court granted. The Superior Court sentenced him accordingly and this appeal followed.
Facts
Allen and co-defendants Howard and McCray were indicted on twenty charges arising from three separate burglary incidents in New Castle County during the summer of 2002. The State alleged that on the evening of May 31, 2002, Allen, Howard and McCray went to a Wilmington Savings Fund Society (“WSFS”) Bank branch in Newark in Allen’s Volvo. McCray, armed with a handgun, climbed to the roof of the building. Howard stood watch behind the bank while Allen did the same in front. Each man had a walkie-talkie to communicate with the others. A short time later, McCray radioed Howard that he needed help cutting the hole in the roof. Howard joined McCray on the roof, leaving Allen to guard the front of the building. Once the two men successfully cut a hole in the roof and dropped a rope in the hole, they waited until the bank opened the next morning.
Early the next morning, Allen called Howard and told him he was returning to his home to exchange his Volvo for a Jeep Cherokee he also owned. After he returned, Allen radioed McCray and Howard to tell them that the bank was being opened. McCray and Howard descended the rope into the bank and accosted one of the two female employees inside. McCray ran into the vault and grabbed as much cash as he could until Allen radioed that it was time to leave the bank. Howard and McCray climbed back up the rope to the
The State further alleged that on August 12, 2002, the trio reunited to rob an EZ Check Cashing outlet. The three men again met at Allen’s house, got into one of Allen’s cars and cased the store from a Chinese restaurant across the street. They returned to Allen’s home, loaded up his Jeep Cherokee with tools and waited until nightfall. That evening, the three men resumed their original duties— McCray climbed to the roof to cut the hole, Howard stood as a look-out behind the store and Allen watched the front. McCray needed assistance again and Howard joined him on the roof again.
A short time later, one of the men on the roof accidentally dropped something through the hole into the store and set off the alarm. McCray and Howard jumped off the roof and ran to Allen’s car. They got in the car and watched the police arrive and soon depart, apparently finding nothing of note. Still nervous, the group returned to Alen’s house. After a while, McCray decided to return to the store. Once he gave Howard and Alen the “all clear,” they returned to the store as well. McCray ascended to the roof of the store again and waited for an employee of the store to deactivate the alarm in the morning. When the manager arrived, she found McCray in the back of the store brandishing a gun. Ater he forced the manager to open the store’s safe, McCray ordered her into the restroom and handcuffed her to a railing. Then, McCray radioed his partners and told them that he had robbed the store successfully and was ready to leave. The three men returned to Alen’s home and split the $12,000 in cash. Howard and McCray drove back to New Jersey. The indictment charged the three men with seven offenses in connection with this incident: (1) Robbery in the First Degree; (2) Burglary in the Second Degree; (3) Conspiracy in the Second Degree; (4) Criminal Mischief; (5) Possession of a Firearm During the Commission of a Felony; (6) Wearing a Disguise During the Commission of a Felony; and (7) Kidnapping in the Second Degree.
Finally, the State alleged that on August 26, 2002, the trio attempted to rob the Wal-Mart store in New Castle. Their first attempt to cut through the roof failed. Undeterred, they returned the next night with a blow torch. As McCray was cutting a hole in the roof, however, Alen radioed that an employee had come out of the store and was looking up at the roof. Soon after, three Wal-Mart employees climbed onto the roof with flashlights to find the source of the noise. As the Wal-Mart employees approached Howard and McCray, McCray pulled out a handgun and ordered one of the employees to the ground. Howard took off running, with McCray a short distance behind. McCray and Howard jumped into Alen’s Jeep Cherokee and drove away. At Alen’s home, McCray and Howard changed their clothes and started to drive back to New Jersey, but were arrested by the Delaware State Police. The indictment charged the three men with seven offenses in connection with this incident: (1) Attempted Rob
Howard and McCray pled guilty to reduced charges prior to trial. Allen pled not guilty. A five-day jury trial commenced on July 30, 2003. The jury found Allen guilty on the charges relating to the attempted burglary of the Wal-Mart store on August 27, but the jury was unable to reach a verdict on the remaining charges pertaining to the WSFS Bank incident on May 31 and the EZ Check Cashing incident on August 12. The trial judge granted the State’s motion to declare Allen a habitual offender and sentenced Allen on February 20, 2004.
Section 274 Instruction
In its opening statement, the State told the jury that its theory of the case against Allen was that of accomplice liability:
And at the end of this case, the State is going to ask you to find this guy guilty as an accomplice for the EZ Check Cashing store, the WSFS Bank, and the Wal-Mart robbery. And the State will prove those to you beyond a reasonable doubt.
In the case sub judice, the main charges against Allen, as an accomplice, were divided into degrees, e.g., Robbery in the First Degree,
When, pursuant to [the accomplice liability statute], 2 or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of an offense of such degree as is compatible with that person’s own culpable mental state and with that person’s own accountability for an aggravating fact or circumstance.7
Allen requested a section 274 instruction so that the jury could make the statutorily required individualized determination regarding his “own culpable mental state” and his “own accountability for an aggravating fact or circumstance,” ie., the use of a gun.
Delaware’s statutory accomplice liability law has abandoned the common-law distinctions between principals and accessories and has established a two-step process for liability under companion statutes. First, title 11, section 271 provides generally, that a person is guilty of an offense committed by another person if an appropriate degree of complicity in the offense can be proved.
In support of his request for a section 274 instruction, Allen relies on this Court’s decision in Herring v. State,
We are deciding Allen’s case en Banc to reconcile our prior inconsistent panel decisions.
Section 274 of the Delaware Criminal Code is based on section 20.15 of the New York Penal Law.
Except as otherwise expressly provided in this chapter, when, pursuant to [the accomplice liability statute], two or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of such degree as is compatible with his own culpable mental state and with his own accountability for an aggravating fact or circumstance.26
The New York statute defines robbery in the first degree as “forcibly stealing] property” and “in the course of the commission of the crime or immediate flight therefrom, [the defendant] or another participant”: cause serious physical injury; is armed with a deadly weapon; uses or threatens the immediate use of a dangerous instrument; or displays what appears to be a firearm.
The substance of Delaware’s statute defining robbery is similar to the New York statute.
Allen argues that, consistent with our holding in Johnson v. State,
Section 274 incorporates Section 271 by reference. The use of the word “offense” in Section 271 and the use of that same word in Section 274 must be construed in pan materia. Accordingly, Sections 271 and 274 require the jury to undertake a two-part analysis when the State proceeds on a theory of accomplice liability.
First, the jury must decide whether the State has established that the defendant was an accomplice to a criminal offense committed by another person ....
Second, if a defendant is found liable for a criminal offense under a theory of accomplice liability, and if that offense is divided into degrees, then the jury must determine what degree of the offense the defendant committed. That conclusion must be based on an individualized determination of the defendant’s mental state and culpability for any aggravating fact or circumstances. This inquiry implicates the provisions of Section 274.36
In Delaware, section 274 contemplates the possibility that an accomplice defendant, who was wholly unaware of another participant’s intent to use a gun in a robbery, could not be convicted of Robbery in the First Degree. The proper role of a jury in considering the liability of a defendant charged as an accomplice to a robbery was succinctly summarized by the New Jersey Superior Court:
[W]hen considering the guilt of a defendant charged as an accomplice to an armed robbery a jury must distinguish between whether the defendant shared his partner’s purpose to commit the robbery with a deadly weapon or shared only his purpose to commit the robbery. If the jury determines that the defendant shared his partner’s purpose to commit the robbery but not his purpose to use a deadly weapon, then the jury may find the defendant guilty of a second-degree robbery, but not a first-degree armed robbery.37
In Allen’s case, the unambiguous language of section 274 mandated a lesser-included instruction to Allen’s jury for the charges of Robbery in the First Degree,
Cross-Examination of Howard
Allen next contends that the Superior Court committed reversible error by refusing to allow defense counsel to cross-examine Issiah Howard about other criminal conduct Howard had engaged in with Kevin McCray. We review a trial judge’s evidentiary rulings for an abuse of discretion.
When defense counsel attempted to cross-examine Howard about his criminal history with McCray, the trial court ruled that counsel was asking questions about other crimes outside the scope permitted by Delaware Rule of Evidence 609.
Allen contends in his opening brief that “Howard was the only witness who connected Allen, an alleged accomplice, to Howard’s and McCray’s roof-cutting activities. Hence the nature and depth of the relationship between Howard and McCray, in comparison to their relationship with Allen, was critical.”
In Wright v. State, we explained that while the accused has the right to confront the witnesses against him, the right to cross-examination is not absolute.
Here, Allen’s strategy was to establish that Howard implicated Allen in the scheme in order to get a deal for his friend McCray. The trial judge permitted defense counsel to cross-examine Howard on this theory, but limited the cross-examination to the subject of “acquaintance and questions like that.” The trial judge concluded that specific questions regarding Howard’s criminal past would have been outside the scope of Delaware Rule of Evidence 609. During trial, defense counsel did not argue that Allen was entitled to cross-examine Howard in this manner under Delaware Rule of Evidence 608(b) or 616. Accordingly, the Superior Court did not abuse its discretion in limiting Allen’s cross-examination of Howard.
Prosecutor’s Comments in Closing Argument
Allen next contends that the Superior Court erred when it did not grant his motion for a mistrial “because of argument by the State designed to evoke unfair speculation and prejudice against him.” We review the Superior Court’s denial of a motion for a mistrial for abuse of discretion.
Defense counsel objected to the prosecutor’s comments during closing argument and rebuttal regarding Allen’s financial condition and to the prosecutor’s comments in rebuttal referring to Allen as a “philanderer.” Allen contends that the prosecutor improperly “encouraged the jury to speculate about the circumstances of Allen’s marriage and finances.” In addition, Allen argues that the prosecutor “play[ed] on the potential to create jealousy and moral disdain toward Allen (a black man) from a largely white jury.” The prosecutor argued this to the jury:
Does he need the money? Absolutely. Why? Because he is a stock boy at the ShopRite. And there is nothing wrong with that. But when you look at being a stock boy at the ShopRite, owning a 2000 Cadillac Escalade, a 1998 Volvo and 1999 Jeep, and you can look at [the] record, that’s a lot of money to be putting out. And who does he say he sells the Jeep to, coincidentally? Kevin McCray, the known bank robber who has no job and can get locked up at any minute and never pay that 14 grand back that he owes.
* :|: *
He called Issiah Howard a philanderer. Does the guy that’s out chasing two women around behind his wife’s back, who doesn’t seem to make enough money to equate to his means, is he a philanderer? You decide.
Allen argues these comments implicitly introduced the element of race into the trial. We have held previously that when the prosecution injects the issue of race into a criminal proceeding, it violates the right of due process guaranteed to all defendants by the United States and Delaware Constitutions and demands the convictions be reversed.
Allen argues the prosecutor’s comment referring to him as “a philanderer” provoked the jury’s moral disdain.
Allen argues that the prosecutor’s statements regarding his financial condition invited unfair speculation. The State responds in its answering brief that “Allen was living a lifestyle quite beyond the reach of an average ‘overnight stocking clerk.’ The prosecutor’s suggestion that Allen may have had a financial motive to participate in the robbery — -to pay for his lifestyle — was, therefore, entirely proper.”
We have previously declined to decide the issue of whether a prosecutor’s reference to a defendant’s financial status is permissible to demonstrate a motive to commit robbery.
It is fundamental to our conception of a fair trial that equality of treatment must be afforded to all without regard to differences in social status or economic condition. In a society which cherishes the ideal of equal justice for all and seeks to accord the equal protection of the laws to all those who are accused of crime, it would be difficult to accept any other view.54
Furthermore, evidence that a defendant is poor or in debt generally has little probative value.
Even if such evidence is relevant, it often carries a danger of unfair prejudice.
The lack of money by A might be relevant enough to show the probability of A’s desiring to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as*218 evidence of the graver crimes, particularly those of violence.59
For these reasons, in analyzing the permissibility of a prosecutor’s reference to a defendant’s financial condition as motive to commit a crime, the trial judge must carefully weigh the probative value of the defendant’s economic status against the danger of unfair prejudice resulting from such a reference. While we acknowledge that in some instances, evidence regarding a defendant’s poverty or indebtedness is relevant and the unfair prejudice arising from the reference is mitigated,
Here, the evidence that Allen owned a Jeep, Volvo and Cadillac was clearly admissible because the three vehicles were central to the State’s case. The evidence regarding whether Allen owned his home was also somewhat relevant given the home’s alleged use as a base of operations for the three men. In closing and rebuttal, however, the prosecutor implicitly compared Allen’s presumably small remuneration from his employment— working as a “stock boy at the Sho-pRite” — to his relatively costly possessions in order to establish motive.
The prosecutor suggested to the jury that Allen could not afford his three vehicles and new home because he was a stock boy at ShopRite and therefore committed robbery in order to support his lifestyle. This was an unreasonable inference from the evidence in the record, calculated to appeal to the jury’s economic prejudices and mislead the jury as to the inferences it may draw.
Accordingly, we hold that the prosecutor’s statements regarding Allen’s financial condition were improper. Since Allen will receive a new trial, we need not decide whether those comments were adequately remedied by the trial judge’s instructions.
Kidnapping Instruction Deficient
Allen contends that the trial judge erred by failing to follow the process required by Weber v. State before submitting the charge of Kidnapping in the Second Degree to the jury.
In Weber, we held that “in every case when a defendant is charged with kidnapping in conjunction with an underlying crime, a specific instruction requiring the jury to find that the movement and/or restraint is independent of and not incidental to the underlying crime is mandatory.”
In Raifcrrd v. State, we explained that the Weber instruction is not discretionary but is required to assure the defendant a fair trial.
Because Allen’s defense counsel failed to object at trial, we review this argument for plain error
Habitual Offender Hearing
Finally, Allen contends that the Superior Court erred by granting the State’s motion to declare him a habitual offender without a separate hearing. Because Allen is entitled to a new trial, this issue is moot.
Conclusion
The multiple criminal charges against Allen were inextricably intertwined. The Superior Court’s failure to give a section 274 instruction with regard to those offenses that are divided into degrees “undermined the ability of the jury to ‘intelligently perform its duty in returning a verdict’ ”
. Along with Allen, Issiah Howard ("Howard”) and Kevin McCray ("McCray”) were indicted in connection with the three burglary incidents.
. Allen v. State, 878 A.2d 447, 449 (Del. 2005).
. Del.Code Ann. tit. 11, § 825 (2008).
. Del.Code Ann. tit. 11, § 602(b) (2008). The dissent asserts that Aggravated Menacing is not a crime that is divided into degrees. However, the “menacing” statute is divided into "degrees.” The misdemeanor of Menacing in title 11, section 602(a) is elevated to the felony of Aggravated Menacing in title 11, section 602(b) when what appears to be a deadly weapon is displayed. Allen was charged with the enhanced crime of Aggravated Menacing as an accomplice because the principal possessed a weapon.
. Compare Del.Code Ann. tit. 11, § 831(a) ("A person is guilty of robbery in the second degree when, in the course of committing theft, the person uses or threatens the immediate use of force upon another person with intent to: (a) Prevent or overcome resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) Compel the owner of the property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft.”), with Del.Code Ann. tit. 11, § 832(a) (“A person is guilty of robbery in the first degree when the person commits the crime of robbery in the second degree and when, in the course of the commission of the crime or immediate night therefrom, the person or another participant in the crime: ... (2) Displays what appears to be a deadly weapon or represents by word or conduct that the person is in possession or control of a deadly weapon....”). Compare Del.Code Ann. tit. 11, § 825(a)(2) (“A person is guilty of burglary in the second degree when the person knowingly enters or remains unlawfully: (2) In a building and when, in effecting entry or while in the building or in immediate flight therefrom, the person or another participant in the crime: a. is armed with explosives or a deadly weapon....”), with Del.Code Ann. tit. 11, § 824 ("A person is guilty of burglary in the third degree when the person knowingly enters or remains unlawfully in a building with intent to commit a crime therein.”). Compare Del.Code Ann. tit. 11, § 602(a) ("A person is guilty of menacing when by some movement of body or any instrument the person intentionally places another person in fear of imminent physical injury.”), with Del. Code Ann. tit. 11, § 602(b) ("A person is guilty of aggravated menacing when by displaying what appears to be a deadly weapon that person intentionally places another person in fear of imminent physical injury.”).
. Del.Code Ann. tit. 11, § 274 (2008).
. Id.
. Wright v. State, 953 A.2d 144, 148 (Del. 2008); Bentley v. State, 930 A.2d 866, 875 (Del. 2007); Lunnon v. State, 710 A.2d 197, 199 (Del. 1998).
. Del.Code Ann. tit. 11, § 271; see also Chance v. State, 685 A.2d 351, 354-56 (Del. 1996); Del.Crim.Code with Commentary 48 (1973).
. Del.Code Ann. tit. 11, § 274; see also Chance v. State, 685 A.2d at 356-58.
. Del.Crim.Code with Commentaiy 52-53 (1973).
. Herring v. State, 805 A.2d 872 (Del. 2002).
. Herring v. State, 805 A.2d at 874.
. Id.
. Coleman v. State, 2000 WL 1840511 (Del.Supr.).
. Johnson v. State, 2008 WL 1778241 (Del.Supr.).
. Richardson v. State, 2007 WL 2111092 (Del.Supr.).
. Scott v. State, 2008 WL 4717162, at *1 (Del.Supr.).
. Del.Supr. Ct. R. 4(d) ("[I]n the event that there is a reasonable likelihood that a prior decision of the Court may be modified or overruled, the presiding Justice of the panel, if not the Chief Justice, shall so notify the Chief Justice ... in writing, and the case shall thereupon be scheduled on a priority basis for rehearing and determination by the Court en Banc without further briefing unless ordered by the Court....”).
. Chance v. State 685 A.2d 351, 361 (Del. 1996); Coleman v. State, 2000 WL 1840511, at *1.
. Compare Del.Code Ann. tit. 11, § 636 (first degree murder requires that the defendant acted "intentionally”), with Del.Code Ann. tit. 11, § 635 (second degree murder requires that the defendant acted “recklessly” or with "depraved indifference”),
. Compare Del.Code Ann. tit. 11, § 832 (first degree robbery requires that the defendant acted "intentionally"), with Del.Code Ann. tit. 11, § 831 (second degree robbery also requires that the defendant acted “intentionally”).
. Scott v. State, 2008 WL 4717162, at *1 (Del.Supr.) (emphasis added); Johnson v. State, 2008 WL 1778241, at *2 (Del.Supr.); accord Richardson v. State, 2007 WL 2111092, at *2 (Del.Supr.); Coleman v. State, 2000 WL 1840511, at *1 (Del.Supr.).
. Chance v. State, 685 A.2d at 355 (describing how Delaware’s section 274 is based on New York’s section 20.15 and does not have a counterpart in the Model Penal Code). Three other states have statutes that substantially mirror this provision in New York and Delaware: Arkansas, Hawaii and Missouri. Id.
. N.Y. Penal Law § 20.15 (McKinney 2008) (emphasis added).
. 6 N.Y. Prac. New York Criminal Law § 1:15 (2009).
. Id. (quoting Donnino, Practice Commentary to Penal Law § 20.00, in 39 McKinney's Cons. Laws of N.Y. 116 (2004)).
. Id.
. See N.Y. Penal Law § 160.15 (emphasis added).
. See N.Y. Penal Law § 160.15. This is supported by People v. Cradle, which rejected a defendant’s argument that the court sua sponte should have instructed the jury on the differing-degrees statute because the defendant's argument was "unsupported by either statute or case law" since the co-defendant had threatened the victim with a dangerous instrument. People v. Cradle, 176 A.D.2d 212, 574 N.Y.S.2d 335, 336 (1991). The court did not, however, go into any specific review of the statutory language in order to reach that conclusion, perhaps because the issue had not been preserved for appellate review. Id. It is also possible to conclude that New York would not require such an instruction when the only inference a reasonable jury could draw is that the defendant had to be aware of the factual circumstance, such as the use of a weapon that elevated the robbery offense. See People v. Cruz, 309 A.D.2d 564, 765 N.Y.S.2d 508, 508-09 (2003).
. 6 N.Y. Prac. New York Criminal Law § 1:15; see also N.Y. Penal Law § 160.15 (defining robbery in the first degree as "forcibly stealing] property” and "in the course of the commission of the crime or immediate flight therefrom, he or another participant ... causes serious physical injury ... or ... is armed with a deadly weapon; or ... uses or threatens the immediate use of a dangerous instrument; or ... displays what appears to be a firearm ...." (emphasis added)).
. Id.; accord Del.Code Ann. tit. 11, § 832 (2008) ("A person is guilty of robbery in the first degree when the person commits the crime of robbery in the second degree and
. Del.Code Ann. tit. 11, § 274 (2008).
. Johnson v. State, 711 A.2d 18 (Del. 1998) (unrelated to the previously-cited Johnson case from 2008).
. Johnson v. State, 711 A.2d at 29-30 (emphasis added).
. State v. Hammock, 214 N.J.Super. 320, 519 A.2d 364, 365 (1986).
. See Del.Supr. Ct. R. 4; Johnson v. State, 2008 WL 1778241 (Del.Supr.); Richardson v. State, 2007 WL 2111092 (Del.Supr.); Coleman v. State, 2000 WL 1840511 (Del.Supr.).
. Manna v. State, 945 A.2d 1149, 1153 (Del. 2008) (citing Pope v. State, 632 A.2d 73, 78-79 (Del. 1993)); Page v. State, 934 A.2d 891, 899 (Del. 2007) (citing Smith v. State, 913 A.2d 1197, 1228 (Del. 2006)).
. D.R.E. 609. Delaware Rule of Evidence 609 states, in pertinent part:
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted but only if the crime (1) constituted a felony under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect or (2) involved dishonesty or false statement, regardless of the punishment. D.R.E. 609(a).
. The court further explained to defense counsel regarding his examination of Howard: "You’ve gone through his felony conviction. You’ve gone through this case and you've gone through the subsequent one in federal court. And if you want, you can ask him general questions, but you can’t ask him about his other criminal conduct.”
. Allen further explained: "If Howard was a long-standing partner in crime with McCray, having participated in a string of burglaries and robberies with him over the years, and in comparison knew Allen much less well, then Howard might have had no hesitation in exaggerating Allen’s alleged involvement.”
. D.R.E. 608(b); D.R.E. 616. Delaware Rule of Evidence 608(b) states:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. D.R.E. 608(b).
Delaware Rule of Evidence 616 states: “For the purpose of attacking the credibility of a witness, evidence of bias, prejudice or interest of the witness for or against any party to the case is admissible.” D.R.E. 616.
. Wright v. State, 513 A.2d 1310, 1314 (Del. 1986).
. Id.
. Chambers v. State, 930 A.2d 904, 909 (Del. 2007) (citing Taylor v. State, 827 A.2d 24, 27 (Del. 2003)); Guy v. State, 913 A.2d 558, 565 (Del. 2006) (citing Flowers v. State, 858 A.2d 328, 332 (Del. 2004)).
. Guy v. State, 913 A.2d at 565 (quoting Ney v. State, 1998 WL 382645, at *1 (Del.Supr.)).
. Id.; see also Justice v. State, 947 A.2d 1097, 1100 (Del. 2008) ("A mistrial is appropriate only when there are no meaningful or practical alternatives to that remedy or the ends of public justice would otherwise be defeated.”).
. Justice v. State, 947 A.2d at 1100 (citing Baker v. State, 906 A.2d 139, 148 (Del. 2006)).
. Weddington v. State, 545 A.2d 607, 614-15 (Del. 1988); see also Del. Const. art. I, § 7. Cf. Am. Bar. Assoc., Standards for Criminal Justice: Prosecution and Defense Function § 3-5.8(c) (3d ed. 1993) ("The prosecutor should not make arguments calculated to appeal to the prejudices of the jury.”); Am. Bar. Assoc., Standards Relating to the Prosecution Function and the Defense Function § 5.8 cmt. c (Approved Draft 1971) ("Arguments which rely upon racial, religious, ethnic, political, economic or other prejudices of the jurors introduce elements of irrelevance and irrationality into the trial which cannot be tolerated in a society based upon the equality of all citizens before the law.”).
."Philander” means "to engage in casual love affairs.” Webster’s II New Collegiate Dictionary 825 (3d ed. 2001).
. Smith v. State, 913 A.2d at 1238, n. 90.
. E.g., State v. Reid, 213 S.W.3d 792, 814-15 (Tenn. 2006); People v. Harris, 37 Cal.4th 310, 33 Cal.Rptr.3d 509, 118 P.3d 545, 570 (2005); Commonwealth v. Haight, 514 Pa. 438, 525 A.2d 1199, 1201 (1987) (Papadakos, J. concurring); People v. Henderson, 408 Mich. 56, 289 N.W.2d 376, 380-81 (1980); State v. Mathis, 47 N.J. 455, 221 A.2d 529, 537-38 (1966); accord U.S. ex rel. Mertz v. New Jersey, 423 F.2d 537, 541-42 (3rd Cir. 1970) (applying New Jersey law); see also 2 John Henry Wigmore, Evidence in Trials at Common Law § 392 (Little, Brown, & Co., James H. Chadbourn ed. 1979).
. U.S. ex rel. Mertz v. New Jersey, 423 F.2d at 541.
. See D.R.E. 403.
. State v. Mathis, 221 A.2d at 538. But see, e.g., Del.Code Ann. tit. 11, § 4209(e)(1)(o) (providing that an aggravating circumstance for murder in the first degree is that "the murder was committed for pecuniary gain”); Ploof v. State, 856 A.2d 539 (Del. 2004) (evidence of life insurance policy admitted to show murder committed for pecuniary gain).
. U.S. v. Mitchell, 172 F.3d 1104, 1108-09 (9th Cir. 1999).
. D.R.E. 403; State v. Reid, 213 S.W.3d at 814; U.S. ex rel. Mertz v. New Jersey, 423 F.2d at 541-42; see also 2 John Henry Wigmore, Evidence in Trials at Common Law § 392.
. 2 John Henry Wigmore, Evidence in Trials at Common Law § 392.
. For example, many courts that have considered this type of evidence have determined that evidence of lack of funds prior to the time of the crime charged is admissible if it is coupled with proof of sudden possession of wealth immediately afterward. E.g., State v. Reid, 213 S.W.3d at 814; U.S. v. Bensimon, 172 F.3d 1121, 1129-30 (9th Cir. 1999); U.S. ex rel. Merit v. New Jersey, 423 F.2d at 541; see also 1A John Henry Wigmore, Evidence in Trials at Common Law § 32, ex. 3 (Tillers rev. 1983).
. We note that at trial when defense counsel objected to the State's line of questioning on diis matter, the prosecutor explained that he intended to use Allen’s ownership of his home and three vehicles to establish he was living beyond his means and therefore had a motive to commit robbery. Although the ruling admitting the evidence was not raised by Allen on this appeal, a balancing would have been appropriate under D.R.E. 403.
. See Am. Bar Assoc., Standards for Criminal Justice: Prosecution and Defense Function § 3-5.8(a), (c) (providing that in closing argument to the jury: (a) "The prosecutor may argue all reasonable inferences from evidence in the record. The prosecutor should not intentionally misstate the evidence or mislead the jury as to the inferences it may draw.” (c) "The prosecutor should not make arguments calculated to appeal to the prejudices of the jury.”).
. Weddington v. State, 545 A.2d 607, 611 (Del. 1988) (citing Am. Bar. Assoc., Standards Relating to the Prosecution Function and the Defense Function § 5.8 cmt.c (Approved Draft 1971)).
. Weber v. State, 547 A.2d 948 (Del. 1988).
. Id. at 959.
. Id. If convicted for kidnapping in the first degree, the defendant faces a potential life sentence. See Del.Code Ann. tit. 11, § 783A; Del.Code Ann. tit. 11, § 4205(b)(1).
. Raiford v. State, 1995 WL 466393, at *1 (Del.Supr.).
. Id. (citing Coleman v. State, 562 A.2d 1171 (Del. 1989), cert. denied, 493 U.S. 1027, 110 S.Ct. 736, 107 L.Ed.2d 754 (1990)).
. Sanders v. State, 1995 WL 264532 (Del.Supr.).
. Id. at *2; see also Coleman v. State, 562 A.2d 1171, 1180 (Del. 1989) (finding that the facts of the case so clearly established that the restraint imposed was a substantial interference with the victim’s liberty in excess of the restraint ordinarily incident to the underlying crime that the failure to give a Weber instruction was not plain and reversible error).
. Del.Supr. Ct. R. 8; Sanders v. State, 1995 WL 264532, at *2 (Del.Supr.) (“Sanders did not object to the kidnapping instructions at trial; accordingly we review the omission of the Weber instruction under the plain error standard."); see Hackett v. State, 888 A.2d 1143, 1145 (Del. 2005) ("Failure to make an objection at trial constitutes a waiver of the defendant's right to raise that issue on appeal unless the error is plain.”) (citing Capono v. State, 781 A.2d 556, 653 (Del. 2001)); Hardin v. State, 840 A.2d 1217, 1219 (Del. 2003) ("In the absence of a timely objection at trial, any claim of error is reviewed on appeal by this Court for plain error.”); see also D.R.E. 103.
. Keyser v. State, 893 A.2d 956, 959 (Del. 2006).
. See Probst v. State, 547 A.2d 114, 119 (Del. 1988) (quoting Storey v. Castner, 314 A.2d 187, 194 (Del. 1973)).
Reference
- Full Case Name
- James ALLEN, Below v. STATE of Delaware, Below
- Cited By
- 20 cases
- Status
- Published