Drummond v. State
Drummond v. State
Opinion of the Court
Dallas H. Drummond, Jr., the defendant-below, appeals directly from his convictions, by a Superior Court jury, of two counts of First Degree Rape and one count of Unlawful Conduct Against a Child by a Sex Offender (“Unlawful Conduct”). Drummond claims that the trial court reversibly erred by denying his (and the State’s) joint motion to sever the Rape charges from the Unlawful Conduct charge. While Drummond’s appeal was pending, we decided Monceaux v. State,
FACTS AND PROCEDURAL BACKGROUND
In April 2009, Drummond allegedly committed sexual assault against his 8-year-old stepdaughter (“child”). At the time of the alleged incident, Drummond had a previous sex offense conviction on his record and was registered as a sex offender. In January 2010, after the child informed her mother about the alleged incident, Drum-mond was arrested and charged with, among other things, First Degree Rape and Unlawful Conduct. In October 2011, the Superior Court held a jury trial on the First Degree Rape charges, and a bench trial on the Unlawful Conduct charge. The jury did not reach a verdict on the Rape charges, but the trial court convicted Drummond of the Unlawful Conduct charge. That latter conviction was later vacated, on the ground that Drummond had not explicitly waived his right to a jury trial on his Unlawful Conduct charge.
On October 17, 2011, before the retrial, Drummond and the State moved to sever the Unlawful Conduct charge from the Rape charges, because one element of the Unlawful Conduct offense was Drum-mond’s registered sex offender status. Their argument was that the jury’s knowledge of Drummond’s sex offender status would materially prejudice his defense against the rape charges. A Superior Court judge had granted the same severance motion before Drummond’s first trial. On this occasion, however, a different Superior Court judge denied the severance motion. That judge reasoned that technological advancements since Getz v. State
Thereafter, Drummond stipulated to his sex offender status, and in April 2012, was retried on both offenses before a jury. During that trial, the jury heard references to and evidence about Drummond’s sex offender status. The jury eventually found Drummond guilty on all counts, and the Superior Court sentenced him to life imprisonment for each of his two Rape convictions, plus fifty years at Level .V incarceration for his Unlawful Conduct conviction.
This appeal followed.
ANALYSIS
Drummond claims that the Superior Court abused its discretion by denying his (and the State’s) joint severance motion in violation of the procedures mandated by Getz and Monceaux. We review a Superi- or Court denial of a motion to sever for abuse of discretion,
In Monceaux, the defendant was convicted of multiple counts of Unlawful Conduct.
The State argues that Monceaux should not apply retroactively to this case because the bifurcation issue arose on direct appeal. We disagree. This Court has held that newly pronounced case law on a direct appeal may be applied in that same case.
Because the court below did not bifurcate Drummond’s trial, the jury decided the Rape charges after having heard evidence that Drummond was a convicted sex offender at the time of the alleged 2009 sexual offense. Monceaux requires that we reverse Drummond’s convictions.
CONCLUSION
For the reasons stated above, we REVERSE the judgments of conviction and REMAND the ease for further proceedings consistent with this Opinion.
. 51 A.3d 474 (Del. 2012).
. Id. at 476.
. State v. Drummond, Cr. I.D. No. 1001008949 (Del.Super. Oct. 12, 2011) (order).
.538 A.2d 726, 734 (Del. 1988) (upholding the exclusion of certain evidence of a defendant's past criminal sexual conduct).
. State v. Drummond, Cr. I.D. No. 1001008949A, at 5 (Del.Super.Dec. 22, 2011) (order).
. Id.
. Burton v. State, 149 A.2d 337 (Del. 1959).
. Gattis v. State, 955 A.2d 1276, 1281 (Del. 2008).
. Monceaux v. State, 51 A.3d 474 (Del. 2012).
. 11 Del. C. § 777A, effective June 30, 2010, was previously designated 11 Del. C. § 779A, which is the identical statutory provision under which Drummond was charged. See 77 Del. Laws 2010, ch. 318, § 6.
. Monceaux, 51 A.3d at 476.
. Flamer v. State, 585 A.2d 736, 746 (Del. 1990).
Reference
- Full Case Name
- Dallas H. DRUMMOND, Jr., Below v. STATE of Delaware, Below
- Cited By
- 1 case
- Status
- Published