Opinion
ID No. 0609010043.
Submitted Date: December 29, 2006.
Decided: March 16, 2007.
Upon Defendant's Motion to Dismiss Counts of the Indictment — GRANTED in part and DENIED in part .
Donald R. Roberts, Esq. Department of Justice, Wilmington, DE.
Joseph A. Hurley, Esq., Wilmington, DE.
Dear Counsel:
The Court has reviewed defendant's "Motion to Dismiss Counts of the Indictment" and the State's opposition thereto. For the reasons that follow, defendant's motion is GRANTED in part and DENIED in part.
The defendant is charged with six counts of Rape First Degree (Counts I-VI) and one count of Kidnapping First Degree (Count VII). Defendant argues that Counts I and II should be merged because "the factual underpinnings of the State's indictments represent, not two separate acts of rape, but rather one `continuous act' constituting one count of rape." "[W]hether a course of conduct permits prosecution for more than one statutory offense, of rape, ultimately turns on the facts, particularly the timing between the sexual acts and the physical movement of the victim between the acts." At this point, the State's proffer is "the victim believes that defendant may have left the room and returned with additional torture devices in between the times he placed his penis in her mouth." Because the determination is factually driven, and at this point the Court is unable to ascertain the timing between the sexual acts and the physical movement of the victim between the acts, the Motion to Merge Counts I and II is DENIED without prejudice.
Def. Mot. to Dismiss, D.I. 5, § II.A.
Wyant v. State, 519 A.2d 649, 661 (Del. 1986)( citing Harrell v. State, 277 N.W.2d 462, 469 (Wis.Ct.App. 1979)).
State Resp., D.I. 9, at 3.
Defendant next argues that the presentment of Counts III, IV, IV and VI violates the rule against multiplicity and constitutes "double-counting" which "runs afoul of due process of law."
Count III alleges:
ERNEST CARLETTI, on or about the 22nd day of May, 2003 in the County of New Castle, State of Delaware, did intentionally engage in sexual intercourse with Kristen Baumer, without her consent and it occurred during the course of a felony, to wit: Kidnapping First Degree as incorporated in this Indictment as Count VII.
Count IV alleges:
ERNEST CARLETTI, on or about the 22nd day of May, 2003 in the County of New Castle, State of Delaware, did intentionally engage in sexual intercourse with Kristen Baumer, without her consent and it occurred during the course of a felony, to wit: Kidnapping First Degree as incorporated in this Indictment as Count VII.
Count V alleges:
ERNEST CARLETTI, on or about the 22nd day of May, 2003 in the County of New Castle, State of Delaware, did intentionally engage in sexual intercourse with Kristen Baumer, without her consent and during the commission he displayed what appeared to be a deadly weapon and represented by word and conduct that he was in possession or control of a deadly weapon or instrument.
Count VI alleges:
ERNEST CARLETTI, on or about the 22nd day of May, 2003 in the County of New Castle, State of Delaware, did intentionally engage in sexual intercourse with Kristen Baumer, without her consent and during the commission he displayed what appeared to be a deadly weapon and represented by word and conduct that he was in possession or control of a deadly weapon or instrument.
Delaware follows the Blockburger test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment. The test to determine whether there are two offenses or only one offense is "whether each provision requires proof of a fact which the other does not." The State acknowledges Counts I-VI require proof of: (1) intent, (2) sexual intercourse, and (3) lack of consent by the victim. But the State argues that "the pairs of Counts all require proof of an element the others do not." According to the State, the defendant committed two acts of intercourse.
Blockburger v. U.S., 284 U.S. 299 (1932).
Burton v. State, 426 A.2d 829, 836 (Del. 1981)( citing Hunter v. State, 420 A.2d 119, 125, 130-1 (Del. 1980)).
Id.
State Resp., D.I. 9, at 5.
In Counts I and II, the State charges the defendant with two acts of intercourse during which time the defendant caused physical injury in violation of 11 Del. C. § 773(a)(1). In Counts III and IV, the State charges the defendant with two acts of intercourse during which time the defendant displayed or represented he possessed a deadly weapon in violation of 11 Del. C. § 773(a)(3). In Counts V and VI, the State charges the defendant with two acts of intercourse during the commission of a felony (Kidnapping) in violation of 11 Del. C § 773(a)(2)(a). The State argues that the defendant was properly charged with six counts of Rape First Degree, because each of the three difference types of Rape First Degree require proof of a fact the others do not: Counts I and II require physical injury, Counts III and IV require a deadly weapon; and Counts V and VI require kidnapping.
The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life and limb." Double jeopardy protects individuals "(1) against successive prosecutions; (2) against multiple charges under separate statutes; and (3) against being charged multiple times and under the same statute." Multiplicity occurs when an individual is charged with more than one count of a single offense. Generally, "[d]ividing one offense into `multiple counts of an indictment violates the double jeopardy provisions of the constitutions of the State of Delaware and of the United States.'"
Williams v. State, 796 A.2d 1281, 1285 (Del. 2002) (emphasis in original)( citing Schiro v. Farley, 510 U.S. 222, 229-30 (1994); Blockburger, 284 U.S. 299; United States v. Forman, 180 F.3d 766, 769 (6th Cir. 1999)).
Feddiman v. State, 558 A.2d 278, 288 (Del. 1989)( quoting Harrell, 277 N.W.2d at 464-65).
Williams, 796 A.2d at 1285 ( quoting Feddiman, 558 A.2d at 288).
As previously discussed, a defendant who commits multiple sexual assaults on the same victim may be convicted for "`each separate and distinct act'" under the same statute. Courts have been willing to divide a course of conduct into separate acts, thereby allowing separate counts for each act. However, courts have not dissected a statute, applied a single act to the subparts, and permitted multiple counts of the same statute based on one act.
Feddiman, 558 A.2d 289 ( quoting Harrell, 277 N.W.2d at 469, 471)("One is not allowed to `take advantage of the fact that he has already committed one sexual assault on the victim and thereby be permitted to commit further assaults on the same person with no risk of further punishment for each assault committed. Each act is a further denigration of the victim's integrity and a further danger to the victim.'")
Id. (holding that over the course of six hours, defendant committed eight counts of unlawful sexual intercourse); Washington v. State, 836 A.2d 485 (Del. 2003) (holding that defendant committed two counts of robbery when he robbed the victim of his silver chain and then a few minutes later, demanded the victim's car keys).
In Williams v. State, the Delaware Supreme Court held that the defendant's conviction for two counts of possession with intent to deliver cocaine ("PWID") was multiplicitous and violated his constitution protection against double jeopardy. The defendant was indicted on two counts of PWID based on two separate searches, in two different locations (defendant's car and home), which produced cocaine. Because the defendant was indicted on two counts of the same statute, the Williams Court distinguished the United States Supreme Court's decision in Blockburger, which "articulated the same-elements test to determine whether double jeopardy has been offended when a person is charged with violating two statutes as a result of one act."
Id. at 1285 n. 13 (emphasis in original)( citing Blockburger, 284 U.S. 299).
The Williams Court adopted the Sixth Circuit's rationale in Rashad v. Burt, which focused on the defendant's intent, as well as the time and location of the act. Because the defendant had one intended purpose for all of the cocaine, the Court held that he could only be charged with one count of PWID. The Court found this approach to be consistent with the ruling in Feddiman, which permitted multiple counts of sexual assault for each separate and distinct act, because for each of those acts, the defendant "formulated the intent to commit each assault and separately violated the same statute numerous times during one continuous attack of the victim."
Id. at 1286-88 ( citing Rashad v. Burt, 108 F.3d 677, 681 (6th Cir. 1997)).
Id. at 1288 ( citing Feddiman, 558 A.2d at 289).
In this case, the defendant's course of conduct can be separated into two separate acts of Rape First Degree, but those two acts cannot be further subdivided within the same statute to create four additional counts of Rape First Degree. Although defendant could have been indicted for Rape First Degree under any one of three different subsections of 11 Del. C. § 773, it does not follow that defendant should be indicted under every subsection for the same act. The defendant's Motion to Dismiss based on the multiplicity doctrine is GRANTED. Counts I and II, III and IV, and V and VI are merged, respectively.
The Court turns now to defendant's argument that the presentment of Count VII, which alleges Kidnapping First Degree, and Counts III and IV, which allege Rape First Degree based on the commission of Kidnapping First Degree, violate defendant's due process rights under Blockburger.
Count VII alleges:
ERNEST CARLETTI, on or about the 22nd day of May, 2003, in the County of New Castle, State of Delaware, did unlawfully restrain Kristen Baumer with the intent of violating and/or sexually abusing her and did not voluntarily release her unharmed prior to trial.
To obtain a conviction on Count VII the State must prove:
1. The defendant unlawfully restrained another person with any of the following purposes:
(a)To hold the victim for ransom or reward; or
(b)To use the victim as a shield or hostage; or
(c)To facilitate the commission of any felony or flight thereafter; or
(d)To inflict physical injury upon the victim, or to violate or abuse the victim sexually; or
(e)To terrorize the victim or a third person; or
(f)To take or entice any child less than 16 years of age from the custody of the child's parent, guardian or lawful custodian;and
2. The defendant did not voluntarily release the victim alive, unharmed and in a safe place prior to trial.
See Pattern Criminal Jury Instructions of the Superior Court of the State of Delaware ("Pattern Instruction"), § 13.d ("Kidnapping in the First Degree"); 11 Del. C. § 783A.
As used in the kidnapping statute, "Restraint" means:
(1) substantial interference with another's liberty,
(2) by movement or confinement,
(3) without the consent of the victim
The Delaware Supreme Court has addressed this issue. A defendant may be convicted of kidnapping in conjunction with the underlying crime of rape if "the movement and/or restraint of the victim [is] more than incidental to the underlying crime." A separate kidnapping charge will not be submitted to a jury unless the trial judge determines, as a matter of law, that the evidence proves that the restraint was "`much more' (substantial) interference with the victim's liberty than is ordinarily incident to the underlying crime." Whether a defendant's conduct rises to the level of substantial interference is not measured by the "degree or duration of the movement and/or restraint, but whether the movement and/or restraint are incident to the underlying offense or are independent of the underlying offense."
Burton, 426 A.2d 829.
Weber v. State, 547 A.2d 948, 958 (Del. 1988)( citing Burton, 426 A.2d at 834).
Id. at 959 ( citing Wilson v. State, 500 A.2d 605, 609-10 (Del.Super. 1985)).
Id. at 958 (emphasis in original).
At this stage of the proceedings, the State's proffered facts support an independent count for Kidnapping First Degree. The State expects that the victim will testify that the defendant approached the victim on the street and forced her into his vehicle at gunpoint. Once inside the vehicle, the defendant allegedly immediately restrained her hands and legs with handcuffs and leg shackles and placed duct tape over her eyes. The defendant allegedly drove for approximately 25 minutes before stopping the vehicle. The defendant then allegedly removed the victim from the vehicle and walked or dragged her into a building. Once inside the building, the defendant allegedly committed the acts of rape. The defendant then placed a ball gag in the victim's mouth, placed a chain or weight around her neck, and lifted her from the ground by using a hoist attached to the handcuffs.
Aff. Probable Cause, dated Sept. 14, 2006.
Id
Id
Id.
Id
The defendant's movement of the victim from the street to his car and to another location was not incident to the subsequent acts of rape. The alleged movement and/or restraint of victim is sufficiently independent to support a conviction of kidnapping. Moreover, the defendant's alleged abduction of the victim at gunpoint, binding her hands and feet with handcuffs and shackles, and duct-taping of her eyes demonstrate much more interference with the victim's liberty than is ordinarily incident to rape. For that reason, defendant's motion to dismiss Count VII of the indictment is DENIED with prejudice.
IT IS SO ORDERED.