Summary
opining that double jeopardy argument based on simultaneous prosecution under § 1109 and § 1111 would only have merit if State had attempted to use same 10 photographs of child pornography for 10 possession charges and 10 unlawful dealing charges
Summary of this case from Wilkerson v. JohnsonOpinion
ID No. 0108008792
Submitted: December 26, 2001
Decided: March 28, 2002
Donald Roberts, Esquire, Department of Justice Wilmington, DE.
James D. Nutter, Esquire, Office of the Public Defender, Wilmington, DE.
Dear Counsel:
Presently before the Court is a Motion for Severance and a Motion to Dismiss Counts XVI through XXV of the indictment filed by the defendant. After reviewing the submissions made by the parties, the Court will deny both motions.
The Court will first address the severance matter. From the submissions made to the Court, it appears that the charges in the indictment relate to the sexual interaction between the defendant and his 18 year old neighbor who is mentally retarded. In addition to the five counts of rape in the second degree, the defendant is charged with ten counts of unlawfully dealing in child pornography and ten counts of possession of child pornography. The defendant seeks to have the rape charges tried separately from those dealing with child pornography.
The defendant is also charged with attempting to tamper with physical evidence and criminal solicitation second degree but they are not relevant to deciding this motion.
Pursuant to Superior Court Criminal Rule 8(a), two or more offenses may be joined in the same indictment provided that one of the following circumstances exist: (a) the offenses are of the same or similar character; (b) the offenses are based on the same act or transaction; (c) the offenses are based on two or more connected acts or transactions; or (d) the offenses are based on two or more acts or transactions constituting parts of a common scheme or plan. The rule allowing joinder is designed to promote judicial economy and efficiency. The rule is not absolute, however, and if it appears that either the defendant or the State is prejudiced by the joinder of offenses in an indictment, the Court may, in its discretion, sever the offenses and order separate trials. The forms of prejudice which a defendant may suffer from an improper joinder of offenses include the fact that (1) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not do so; (2) the jury may use the evidence of one of the crimes to infer a general criminal disposition of the defendant in order to find guilt of the other crime or crimes; or (3) the defendant may be subject to embarrassment or confusion in presenting different and separate defenses to different charges. It is these factors that the Court should balance in deciding whether to grant the defendant's Motion.
Weist v. State, Del. Supr., 542 A.2d 1193 (1988).
Weist 542 A.2d @ 1195.
The State argues that the offenses are properly joined as they are a part of a common scheme or plan leading to the defendant's sexual interaction with the victim. The State represents in its response that it will present evidence that the victim was shown child pornography in order to groom the victim for future sexual relationships with the defendant and further that the defendant admitted that he had shown the pictures to the victim as part of his plan to seduce him. As a result, the State argues that the evidence as to both types of crimes are inextricable intertwined that prevents severance.
Based upon the State's representation, the Court agrees. The efforts by a defendant to create an atmosphere that will foster his future sexual acts by displaying pornography is not only relevant to the rape charges but is clearly part of an overall scheme to promote the illegal sexual behavior. Such activity by the defendant causes the crimes to become connected and even admissible under Rule 404(b) to establish intent, plan and knowledge of the defendant. As a result, the defendant's Motion for Severance is denied. Of course, this decision is based upon the limited information provided to the Court in the pleadings filed relevant to this motion. If the evidence at trial is substantially inconsistent with that represented by counsel, the Court would have to reconsider the potential prejudice to the defendant and the appropriateness of the joinder. However, at the moment the Court is satisfied that the factors which favor a joint trial outweigh those offered by the defendant for severance and that a properly instructed jury will not infer a general criminal disposition by the defendant; will be able to compartmentalize the evidence regarding each offense and the defense to the various charges are not inconsistent so as to require severance.
Next, the defendant contends that the simultaneous prosecution of him for the charges of unlawfully dealing in child pornography and possession of child pornography subjects him to multiple punishments for the same offense and is constitutionally prohibited as double jeopardy. Possession of child pornography is defined in 11 Del. C. § 1111 and generally prohibits one from possessing a visual depiction of a child engaged in a prohibited sexual act. In contrast, unlawfully dealing in child pornography is intended to address the more sophisticated crimes relating to child pornography by first prohibiting the shipment, mailing or transporting of child pornography; second, prohibiting the receipt of such material for the purpose of selling it; third, prohibiting the distribution and dissemination of such material and finally, by prohibiting the compiling, entering, assessing, transmitting, receiving, exchanging, disseminating, storing, making, printing, reproducing or otherwise possessing of such material by means of a computer. It is this final phrase "otherwise possessing" that the defendant now hangs his double jeopardy claim.
Title 11 Del. C. § 1109.
When the Court carefully reviews the two statutes set forth above, it appears that the defendant's double jeopardy argument would only have merit if the "possession" asserted by the State is in reference to materials that are maintained in some form on a computer. For example, if the State had recovered ten photographs depicting sexual acts by children that had been stored on a computer maintained by the defendant, and attempted to use those same ten photographs to first charge ten counts of unlawfully dealing in child pornography and ten counts of possession of child pornography, then the concerns raised by the defendant would appear to have merit. However, from the representations made in the State's pleadings, this does not appear to be their intent. The State has represented that the ten counts charging unlawfully dealing in child pornography specifically relate to items seized from the defendant's computer and thus are applicable under that particular statute. On the other hand, the ten counts that merely charge possession of child pornography are non computerized items that will meet the statutory requirement of Section 1111. As such, it appears that the defendant is not being punished twice for the same illegal conduct as each offense relates to a different and distinct prohibited act.
In fairness to the defendant, it is difficult from the generic phrasing of the indictment to distinguish what items are included in each count. Perhaps this area has been fully explored between counsel during discovery, but if it has not, I would strongly suggest that counsel meet and attempt to clarify this issue. If the dispute remains as to what items are intended to be prosecuted under which counts, this Court would strongly recommend that counsel for the defendant file a bill of particulars pursuant to Rule 7(f) of the Superior Court Criminal Rules so this issue can be clarified. It is only when there has been a more definitive appreciation for the precise items encompassed in each count will the defendant realize whether he has a basis to claim double jeopardy. At this moment, based upon what has been presented to the Court, it does not appear that the defendant's claim has merit. As such, the defendant's Motion to Dismiss Counts XVI through XXV is denied.
IT IS SO ORDERED.