Opinion
Nos. 9908014943 and 9908017378.
Submitted: November 5, 1999.
Decided: February 10, 2000.
Upon Consideration of Defendant's Motion for Bill of Particulars, DENIED.
Stephen R. Welch, Jr., Esq., Dover, Delaware. Attorney for State.
Michael J. Malkiewicz, Esq., Dover, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the defendant's motion for a bill of particulars, the arguments of counsel and the record in this case, it appears that:
1. The defendant, Edward J. Goldsborough, Jr., is charged in a seven-count indictment with Unlawful Sexual Intercourse in the First Degree, 11 Del. C. § 775, three counts of Indecent Exposure in the First Degree, 11 Del. C. § 765, Sexual Harassment, 11 Del. C. § 763, Rape in the First Degree, 11 Del. C. § 773, and Unlawful Sexual Contact in the Second Degree, 11 Del. C. § 768. He has moved the Court for an order requiring the state to provide him with a bill of particulars. The state did voluntarily provide the defendant with a bill of particulars, but defendant argues it is insufficient for purposes of preparing his defense. Because the defendant has already obtained at a preliminary hearing all the information which can be reasonably sought by a bill of particulars, the motion is denied.
2. Mr. Goldsborough seeks to compel the state to provide him with certain information with respect to each count. Specifically, he asks the state to indicate the precise locations where each offense occurred, the specific dates of the incidents and the precise nature of the alleged unlawful sexual conduct. In the bill of particulars which the state did file, it indicated the Unlawful Sexual Intercourse First Degree which is the subject of Count I took place in Goldsborough's residence, although the precise area was not disclosed. With regard to the date of the alleged unlawful sexual intercourse, the state did not provide an exact date but simply reiterated the allegations of the indictment that it occurred between January 1, 1999 and August 2, 1999. Rather than specify the exact nature of the intercourse involved, the state referred the defendant to the term's statutory definitions. The defendant was informed that the Indecent Exposure allegations took place in the vicinity of his residence on or about July 15, 1999, but a more precise location and date were not specified. Goldsborough was informed that the Sexual Harassment was alleged to have taken place at defendant's residence on or about July 15, 1999 but the exact location in the home was not disclosed. Additionally, defendant was not apprised of the way he allegedly attempted to induce the victim to have sexual contact with him. The State further provided that the Rape charge allegedly took place some time between January and August 1999. in defendant's residence, but a specific location in the residence, a specific date or the specific type of sexual intercourse was not disclosed. With regard to the Unlawful Sexual Contact charge, the State disclosed it took place in defendant's residence between January and August of 1999 but the type of sexual contact was not revealed. No further detail was provided.
3. Goldsborough argues the information he seeks is necessary for the preparation of his defense and the bill of particulars is the appropriate method by which to acquire it. The State rebuts this assertion by arguing it is not obligated to provide information beyond that which has been supplied in the indictment and the bill of particulars nor can it be compelled to "freeze its case" in advance of trial.
4. Indictments serve to notify a defendant of what he must defend against and also serve as a shield against the possibility of double jeopardy. Accordingly, it is adequate so long as it informs the defendant of the facts and charges against him sufficient to enable him to prepare for his defense. Essentially, a bill of particulars provides supplemental information. It serves to protect a defendant against unfair surprise at trial and prevent subsequent prosecutions for an insufficiently described offense. Basically, it fills in any informational gaps missing in the indictment which then allows the accused to develop his defense. However, while the prosecution is generally limited to proving those facts included in the bill of particulars, the State's case is not "frozen" prior to trial by it. While a bill of particulars is designed to clarify the allegations, it is not meant to compel the State to disclose its theory of the case or evidentiary information. "A bill of particulars may not serve as a discovery device and defendants may not use a bill of particulars to circumvent the rules governing discovery." The decision to grant a motion for a bill of particulars rests within the sound discretion of the court. Accordingly, the deciding court weighs the competing interests of the defendant who seeks additional information for purposes of preparing a defense versus the State's interests in protecting witnesses or not "commit[ting] itself to a specific version of the facts before it is in a position to do so."
State v. Banther, Del. Super., No. IK97-05-0094, Ridgely, P.J. (April 2, 1998) (ORDER), quoting State v. Gardner, Del. Super., Cr. A. No. IN93-01-0854, Toliver, J. (Aug. 24, 1993) (Op. and Order).
Id.
Lovett v. State, Del. Supr., 516 A.2d 455, 467 (1986).
Lovett, 516 A.2d at 467, citing United States v. Cantu, 5th Cir., 557 F.2d 1173, 1178 (1977); cert. denied, 434 U.S. 1063 (1978).
State v. Traekner, Del. Super., 314 A.2d 202, 208 (1973).
Lovett, 516 A.2d at 465.
United States v. Hajecate, 683 F.2d 897 (1982); State v. Strughold, Mo. Ct. of Ap., 973 S.W.2d 876, 890 (1998).
Banther at 1.
Super. Ct. Crim. R. 7(t); State v. Banther, Del. Super., No. 9705000270, Ridgely, P.J. (April 2, 1998) (ORDER).
Id., quoting United States v. Rosa, 3d Cir., 891 F.2d 1063, 1066 (1989).
5. In order to put the defendant's request for a bill of particulars in context, it must first be noted that a preliminary hearing was conducted in this case. At that hearing the investigating police officer set forth the basis for each of the seven charges. The officer testified that on August 2, 1999 the parents of Amanda Long appeared at the police station and reported incidents involving the defendant. One of the incidents involved an alleged indecent exposure in a field near the defendant's residence. The incident allegedly involved him taking his shorts down and exposing his genitals to Amanda Long and another victim, Stefanie Ganschow. The incident reportedly occurred about mid-July. This incident, although apparently a single incident, involved two alleged victims and appears to account for Counts 2 and 3 of the indictment. According to the officer's testimony, the unlawful sexual intercourse count involved an incident where the defendant allegedly committed cunnilingus on Amanda Long in his bedroom at his residence. As reported to the officer, the incident allegedly occurred during the spring when Amanda was in the first grade. On that basis the indictment alleged that it occurred between January 1 and August 2, 1999. The testimony continued that the first degree rape charge arose out of an alleged incident in which the defendant allegedly inserted his penis into the anus of Kali Goldsborough, a four-year-old. This incident allegedly occurred in the defendant's bedroom. So far as the time, the best that the officer was apparently able to determine was that the child reported that it occurred when she was four. She had turned four on May 23, 1999. On this basis, the indictment alleged that it occurred between January 1 and August 2, 1999. This child described a separate incident in which the defendant allegedly touched her vagina with his finger. This incident, which appears to form the basis for Count 6, allegedly occurred in his kitchen. A specific date was not indicated but the same January 1 — August 2, 1999 time frame was set forth in the indictment. As one continues to read the transcript of the preliminary hearing, it becomes clear that counts 4 and 7 of the indictment arise out of an incident in which the defendant allegedly grabbed the hand of another minor, Kirstin Taft, and tried to place her hand on his penis. This allegedly occurred in his bedroom at a time when he did not have any clothes on. The indictment alleges that these incidents occurred on or about July 15, 1999. In summary the basic factual basis for each of the seven charges was set forth in the preliminary hearing testimony. Therefore, all of this information is already in the possession of the defendant.
6. With regard to time, Counts 2, 3, 4 each allege that the offense occurred on or about a certain date. This certainly does not require any further amplification in a bill of particulars. Counts 1, 5, 6 and 7 each allege that the offense occurred between January 1 and August 2, 1999. Alleging that an offense occurred during a certain time span is generally considered adequate if the date is not an essential element of the offense and as long as the span is within the statute of limitations. This is particularly the case where child victims are involved. In such cases, a specific date is not necessary since the victim is a child and cannot be expected to remember the exact date with precision. The Court sees nothing in this particular case which requires any greater specificity of date for the defendant to be on fair notice of the alleged offense. With regard to place, the information presented at the preliminary hearing provides sufficient detail. Nothing has been suggested to the Court which would indicate that the defendant's ability to prepare his defense is impeded or prejudiced by lack of better information concerning location of the alleged offenses. As to the nature of the various forms of sexual misconduct alleged, the Court finds that any perceived lack of detail in the indictment is remedied by the descriptions of the alleged acts given at the preliminary hearing. A defendant is not entitled to a bill of particulars for information of which he is already aware or which is readily accessible to him. The Court is satisfied that the information contained in the officer's testimony at the preliminary hearing more than adequately provides the defendant with the information which he could reasonably expect from a bill of particulars.
Id.
State v. Moore, Del. Super., No. 9707004730, Cooch, J. (Jan. 14, 1998) (ORDER).
7. THEREFORE, IT IS ORDERED that defendant's motion for a bill of particulars is denied .
_________________ Resident Judge
oc: Prothonotary cc: Order Distribution