Opinion
I.D. No. 0004019366, I.D. No. 0004004124
Submitted: September 21, 2001
Decided: October 18, 2001
Upon Defendant's Motion for a Non-Jury Trial. DENIED.
James V. Apostolico, Andrew J. Vella, Deputy Attorneys General, Wilmington, Delaware, Attorneys for the State.
Kathleen M. Jennings, Oberly Jennings, P.A., Wilmington, Delaware, Attorney for Defendant, Jose Ocampo.
Eugene J. Maurer, Jr., Eugene J. Maurer, Jr., P.A., Wilmington, Delaware, Attorney for Defendant, Abigail Caliboso.
MEMORANDUM OPINION
This is Defendants' Motion for a Non-Jury Trial in the above-captioned proceedings. In addition, Defendants have filed a Motion to Dismiss Indictment and a Motion to Suppress Evidence. A hearing is scheduled for October 22 and 26, 2001, after which the Court will render its decisions on the remaining motions.
Defendants are charged with Murder by Neglect in the Second Degree pursuant to 11 Del. C. § 633. Specifically, the indictment charges that Defendants, "did with criminal negligence cause the death of the newborn baby girl of defendant Caliboso and of the defendant Ocampo through an act of neglect of the baby." Defendants have now filed a motion asking that Court exercise its discretion to grant a non-jury trial, arguing that the trial will involve complex issues of statutory construction and that unique circumstances exist to warrant a non-jury trial. The State has indicated that it objects to Defendant's request.
Initially, Defendants argue in support of their request for a non-jury trial that the instant case involves complex questions of statutory construction. Defendants point out that the language of the statute under which defendants were charged, 11 Del. C. § 633, was amended in 1999 and that this is the first case to be tried under the amended statute. As a result, Defendant argues, there is no history or precedent to guide the fact finder in interpreting and applying the statutes involved.
Eleven Del. C. § 633(a) provides:
A person is guilty of murder by abuse or neglect in the second degree when, with criminal negligence, the person causes the death of a child:
(1) Through an act of abuse and/or neglect of such child . . . "Neglect" is defined in 11 Del. C. § 1103(c) as:
threatening or impairing the physical, mental or emotional health and well-being of a child through inadequate care or protection, nontreatment or abandonment by the child's custodian or other person in whose temporary custodial care the child is left, when such custodian or other person has the ability and financial means to provide adequate care or protection, but does not or will not do so.
Defendants state that, prior to the enactment of the Murder by Abuse or Neglect statute, prosecutions in cases involving deaths were brought under either the Murder First Degree, Murder Second Degree, Manslaughter, or Criminally Negligent Homicide statutes. The statute at issue was superimposed on the traditional homicide statutes, creating overlap. In addition, 11 Del. C. § 633 was amended to allow prosecution for a single act of neglect when committed with the appropriate state of mind. As a result, Defendants argue that the legislatute has created a "crazy quilt" of statutory prescriptions, in which several different statutes purport to proscribe the same conduct. Defendants contend that lay jurors would be confused as to how to apply § 633 even under the most precise jury instructions.
Defendants also contend that the statutory definition of neglect, quoted above, would be confusing to a lay jury. Defendants argue that jurors would have to determine whether Defendants, as custodians of their infant, had the "ability and financial means" to provide "adequate care and protection" for the infant.
Finally, Defendants point out that both defendants have given statements to the authorities implicating the other. If the State intends to utilize the confessions of each defendant against the other, Defendants contend that severance may be necessary. Defendants argue that, if the trials are severed, separate juries could render verdicts which are divergent, which Defendants contend would result in extreme injustice. By allowing the matter to be tried by the Court, this issue would be alleviated because Defendants would be tried by a fact finder who will presumably render the same verdict for both defendants.
Superior Court Criminal Rule 23(a) provides that, "[c]ases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the state." Although the right to a jury trial is guaranteed to criminal defendants by the United States Constitution, there is no right to waiver of a jury trial by the defendant under either the United States or Delaware Constitutions. Singer v. United States, 380 U.S. 24, 35 (1965); Polk v. State, Del. Supr., 567 A.2d 1290, 1294 (1989); Longoria v. State, Del. Supr., 168 A.2d 695, 698 (1961). Therefore, the State has the right to insist that a case be tried by a jury. Longoria, 168 A.2d at 698.
The United States Supreme Court implied, but did not decide, that there may be circumstances, "where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial." Singer, 380 U.S. at 37. Singer noted that those circumstances include situations where, "passion, prejudice, public feeling or some other factor may render impossible or unlikely an impartial trial by jury." Id. at 37-38. Defendants argue that they have presented compelling reasons, as outlined above, to show that an impartial trial by jury is unlikely.
In exercising its discretion to grant or deny a defendant's motion for a non-jury trial, the Court must "avoid unreasonable or undue departure from that mode of trial [trial by jury], or from any essential elements thereof, and with caution increasing in degree as the offenses dealt with increase in gravity." Polk, 567 A.2d at 1295 (quoting Fetters v. State, Del. Supr., 436 A.2d 796, 798 (1981) and Patton v. United States, 281 U.S. 276, 312 (1930)) (Emphasis in original.) Here, the severity of the offense charged is great; Murder by Abuse or Neglect in the Second Degree is a Class B felony carrying a minimum sentence of ten years imprisonment. Therefore, the Court's caution in considering Defendants' motion must also be great.
To the extent that Singer established an exception to Rule 23(a) where "passion, prejudice, public feeling, or some other factor" would deny the defendant a fair or impartial trial, the Court cannot find that circumstances exist in the instant case so that Defendants cannot receive a fair trial by jury. Although Defendants are correct in stating that the statute under which they have been charged has been recently amended and is, as yet, untested, the Court cannot find that the statutes and legal concepts involved are so complex as to be unfathomable to a jury, especially where the jury is given adequate guidance by the Court in the form of carefully drafted instructions.
The Court also finds that the jury will not have to consider whether Defendants had the "ability and financial means to provide adequate care and protection" to their infant.
In the instant case, the State contends that the act of neglect committed by Defendants was the abandonment of their infant. Upon careful reading of the definition of "neglect" as set forth in 11 Del. C. § 1103(c), and quoted above, the Court finds that a jury would only be called upon to determine whether the custodian of a child has the "ability and financial means to provide adequate care or protection," where the act of neglect alleged involves inadequate care of protection of the child. Where the custodian is charged with nontreatment or abandonment of the child, no such finding is required. As a result, in the instant case a jury would not be presented with the issue of Defendants' ability and financial means to care for and protect their infant.
Finally, Defendant asserts that, in the event that the cases against Defendants are severed, the juries hearing the evidence against Ocampo and Caliboso could render inconsistent verdicts, resulting in extreme injustice to both defendants. The Court finds that this argument is not relevant to the Court's consideration of the issue at hand, that is, whether Defendants should be tried before a jury. Rather, the Court finds that the argument should be considered only if one or both of the Defendants decides to file a motion to sever the cases.
Therefore, for the foregoing reasons, the Court hereby DENIES Defendants' joint Motion for Non-Jury Trial.
IT IS SO ORDERED.