Opinion
IK99-07-0201-0202.
April 12, 2000.
Upon Consideration of Defendant's Motion for Transfer to the Family Court .
Francis E. Farren, Esquire, Attorney for the State.
Deborah L. Carey, Esquire, Attorney for Defendant.
COMMISSIONERS REPORT AND RECOMMENDATION
The defendant Steven J. Roscoe ("Roscoe") was indicted by the Grand Jury on one count of Attempted Murder in the First Degree, 11 Del. C. § 531, and one count of Possession of a Firearm During the Commission of a Felony ("PFDCF"), 11 Del. C. § 1447A. The charges stem from an incident on June 6, 1999 during which Roscoe allegedly shot the victim, Arthur Harvey ("Harvey"), twice in an alleged attempt to murder Harvey.
The charges were brought in Superior Court pursuant to 11 Del. C. § 1447A(e) and 10 Del. C. § 1010. Roscoe was born on March 16, 1983 and was sixteen at the time of the offenses charged; he has just turned seventeen. Roscoe has moved to have the Attempted Murder charge transferred to the Family Court pursuant to 10 Del. C. § 1011. 10 Del. C. § 1011 allows the Court to conduct a Reverse Amenability Hearing to determine whether the defendant is more amenable to the process of this Court or the Family Court. The State opposes the transfer. In State v. Anderson, the Delaware Supreme Court held that juvenile defendants between the ages of 15 and 18 charged in Superior Court with Possession of a Firearm During the Commission of a Felony, pursuant to 11 Del. C. § 1447A(e), are not entitled to have that charge transferred to the Family Court under the reverse amenability process. Consequently, under the Anderson holding the only charge which Roscoe may have examined for transfer to the Family Court under the reverse amenability process is the Attempted Murder charge. The motion was referred to the Court Commissioner for Findings of Fact and Recommendations pursuant to 10 Del. C. § 512 and Superior Court Criminal Rule 62. A hearing was held and the parties submitted written arguments.
11 Del. C. § 1447A(e) states that every person charged with possession of a deadly weapon during the commission of a felony "over the age of 15 years shall be tried as an adult, notwithstanding any contrary provisions or statutes governing the Family Court or any other State law".
10 Del. C. § 1010 provides that a child shall be proceeded against as an adult when charged with Murder in the First Degree. Roscoe has been charged with Attempted Murder in the First Degree and is therefore subject to the jurisdiction of the Superior Court.
10 Del. C. § 1010 and 1011 were formerly 10 Del. C. § 938 and 939 respectively.
Del. Supr., 679 A.2d 379 (1997).
Id. at 389.
In determining whether it would be in the interest of justice to transfer a defendant's case to the Family Court, this Court must consider, among other things, the following:
1. The nature of the present offenses and the extent and nature of the defendant's prior record if any;
2. The nature of past treatment and rehabilitative efforts and the nature of the defendant's response thereto, if any; and
3. Whether the interests of society and the defendant would be better served by a trial in the Family Court or in the Superior Court.
In addition to the foregoing, the Court must also consider the following additional factors in light of the Supreme Court's ruling in Anderson. The Supreme Court stated concerning the decision to retain jurisdiction that:
A construction that views [ 11 Del. C. § 1447A(e)] as permissive permits the court to apply the usual standards which govern joinder and severance of offenses. See Superior Court Criminal Rules 8 and 14. In most cases, we envision that the Superior Court most likely will decide to retain jurisdiction over companion charges simply because the standards of joinder may so suggest. In the reverse amenability process decision as to other offenses, the Superior Court is free, of course, to take into consideration as a factor, perhaps a significant factor, the fact that the felony firearm offense must be decided in the Superior Court and that the juvenile will not be spared adult court proceedings in any event, regardless of the merit of the companion charges and the prospect for rehabilitation.
Anderson, 679 A.2d at 389.
Therefore, the following additional matters must also be examined:
4. Whether the companion charges should remain in Superior Court based on the standards which govern joinder and severance of offenses; and
5. The effect of the inevitable adult court proceedings and possible incarceration, regardless of the merit of the companion charges and the prospect for rehabilitation.
NATURE OF THE PRESENT OFFENSES AND THE EXTENT AND NATURE OF THE DEFENDANT'S PRIOR RECORD
A. Nature of the Present OffensesIn this case, the Court must consider the nature of both offenses, each of which confer jurisdiction on this Court. The crimes charged are alleged to have occurred on June 22, 1999. The nature of both charges, in particular the Attempted Murder, is extremely serious. This charge is clearly intertwined with the firearm charge.
As part of the consideration which the Court must give to the nature of the crime, the Court is required to determine whether or not the State has established a prima facia case. A prima facia case is established if there is a fair likelihood that the defendant will be convicted. In deciding whether the State can establish a fair likelihood of conviction the Court must determine whether, after reviewing the totality of the evidence presented, it appears, knowing that the defense has yet to be presented, that the likelihood of conviction is real if the defense does not sufficiently rebut the State's evidence. A real probability must exist that a reasonable jury could convict on the totality of the evidence assuming that the evidence introduced at the reverse amenability hearing stands un-rebutted by the defendant at trial.
Marine v. State, Del. Supr., 607 A.2d 1185, 1211 (1992), cert. dismissed, 505 U.S. 1247, 113 S.Ct. 28, 120 L.Ed.2d 952 (1992) (Marine I); Marine v. State, Del. Supr., 624 A.2d 1181, 1185 (1993) (Marine II); State v. Mayhall, Del. Super., 659 A.2d 790, 791-92 (1995); State v. Walker, Del. Super., IK95-04-0023, Terry, J. (June 12, 1995) (Order at 2).
State v. Walker, supra at 2.
State v. Walker, supra at 2; State v. Mayhall, 659 A.2d at 792.
Id.
In doing this, the Court must keep in mind that the defendant has not yet had the opportunity to confront witnesses against him or to put on any defense. The Court's role is not to decide in this proceeding what the facts are or to opine as to the guilt or innocence of the defendant. The Court must look at the totality of the limited evidence and decide if it establishes a fair likelihood of conviction, if not rebutted by the defendant.
Walker, supra at 2.
Marine I, 607 A.2d at 1211; Marine II, 629 A.2d at 1188; Mayhall, 659 A.2d at 792; Walker, supra at 2.
At the hearing, the State called Detective William Porter. Based upon a number of eyewitness interviews as well as a consensual interview with Roscoe, Detective Porter testified to the following. Several days prior to June 22, 1999, Roscoe had injured his collarbone in an accident and consequently had his arm in a sling. The day before the shooting, Harvey, who was visiting relatives in Delaware, sought out Roscoe to purchase some marijuana. However, instead of buying the drugs from Roscoe, Harvey, who is a much larger person than Roscoe, simply forcibly took forty dollars' worth of marijuana from Roscoe. Apparently, this angered Roscoe who proceeded to call Harvey's cousin, Kevin Wright ("Wright") saying that what Harvey did was "f__ked up" and that he was going to seek revenge against Harvey.
Wright then decided he would pay Roscoe the money Harvey owed to try and cool the situation down. Unfortunately, when Wright arrived at Roscoe's to give him the money, Roscoe mistakenly believed Wright was intending to accost him. As Wright approached, Roscoe pulled a handgun from his waistband and told Wright "don't make me shoot you." Understandably, Wright got back in his car and left.
The following day, June 22, 1999, Roscoe smoked some marijuana and drank some beer with several friends. Afterwards, Roscoe armed himself with the handgun and told his friends he intended to confront Harvey about the stolen drugs. Allegedly, Roscoe told his friends, "I'm gonna use [the gun] if I have to. If it really comes down to it, I'll have to shoot him." Apparently, the plan was for Roscoe and his friends to jointly confront Harvey and get the money from him. However, Roscoe's friends stayed back as Roscoe alone walked up to Harvey. At the time Harvey was attending a backyard barbeque at his relatives' home. Several children were playing in the yard as Roscoe approached. What happened next is in dispute. Several eyewitnesses, including the victim, told the police that Roscoe shot at Harvey as Roscoe was walking toward Harvey. Roscoe and at least one of his friends told police the gun was not fired until after Harvey and Roscoe started scuffling. Clearly, the exact chain of events will be determined by a jury after assessing the credibility of the witnesses. Nevertheless, at some point the gun Roscoe had armed himself with was fired and Harvey was hit twice, once in his front right shoulder and once in his right neck area. After the shots were fired, a neighbor came out and retrieved the weapon from Roscoe who then fled with his friends. The police apprehended Roscoe a short time later.
After carefully considering the testimony present at the hearing and the record in this case, I find the State has met its burden of establishing a fair likelihood of conviction for the offenses charged. While the State may have a weaker case on the Attempted Murder change, it nevertheless has met its burden and it surely has at a minimum a strong case for a lesser-included felony of Assault in the First Degree which would, of course, along with the firearm charge mandate the charges be brought in this Court. In fact, the defense has conceded that the State has met its burden.
B. Roscoe's Prior Record
Roscoe has a limited criminal history. Roscoe's record consists solely of two arrests on charges which ultimately were dropped by the State. Roscoe has never been adjudicated delinquent.
NATURE OF PAST REHABILITATION EFFORTS AND ROSCOE'S RESPONSE
As Roscoe has never been adjudicated delinquent, he has never been in any State sponsored rehabilitative programs. It is clear that Roscoe has not yet had the benefit of any rehabilitative efforts and it is impossible therefore to assess his potential response to any such treatment.
WHETHER THE CHARGES SHOULD REMAIN IN SUPERIOR COURT BASED ON THE STANDARDS WHICH GOVERN JOINDER AND SEVERANCE OF OFFENSES
Roscoe is charged with Possession of a Deadly Weapon During the Commission of a Felony and Attempted Murder in the First Degree. The Possession of a Firearm During the Commission of a Felony charge must remain in Superior Court. Under Superior Court Criminal Rule 8, offenses that are of "the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan" can be indicted and tried together. The purpose of the rule is to promote judicial economy and efficiency. It is difficult to imagine charges more tied together than those with which Roscoe is charged. Clearly a trial on the weapons offense must necessarily include evidence on the Attempted Murder charge, as that is an integral element of the offense. Equally, a trial on the Attempted Murder charge must include evidence of the possession of the firearm as the weapon used in the Attempted Murder First Degree. These charges are so intertwined that it would defy logic to separate them under all but the most extraordinary circumstances. This factor weighs heavily against transfer of the Attempted Murder charge to the Family Court.
Super. Ct. Crim. R. 8(a).
Sexton v. State, Del. Supr., 397 A.2d 540 (1979), overruled on other grounds, Hughes v. State, Del. Supr., 437 A.2d 559 (1981).
In the event Roscoe is found guilty of the firearm charge, he will be facing a minimum mandatory sentence at Level V of three years. In this case, the evidence against Roscoe primarily consists of his own statement and several eyewitnesses who saw him shoot the victim, along with Roscoe's own statement that if it came down to it he'd have to shoot Harvey. The State's case is sufficient that a reasonable jury could convict Roscoe on the firearm charge should the evidence presented at the hearing stand and remain uncontradicted by the defense. If convicted, Roscoe will be incarcerated within the adult system for three years on that charge alone.
11 Del. C. § 1447A.
WHETHER THE INTEREST OF SOCIETY AND ROSCOE WOULD BE BEST SERVED BY TRIAL IN THE FAMILY COURT OR IN THE SUPERIOR COURT
Roscoe is accused of attempting to murder an unarmed man and possessing a firearm. The victim was shot twice at close range. The alleged motive was the loss of only forty dollars worth of marijuana. Roscoe is currently seventeen and faces three years minimum mandatory at Level V if convicted in the Superior Court on the firearm charge. At the hearing, the defense presented the testimony of Dr. Abraham Mensch, a licensed psychologist. Dr. Mensch examined Roscoe and concluded that his rehabilitative needs are such that they could be addressed through the Family Court system. Dr. Mensch along with Kathy Fitzgerald of the Chrysalis Day Treatment Program felt that Roscoe has a problem with the use of illegal drugs and would benefit from substance abuse counseling. Ms. Fitzgerald testified concerning programs that may benefit Roscoe. Joseph McCorquodale of the Divisional Youth Rehabilitative Services (DYRS) also testified. Mr. McCorquodale acknowledged that Roscoe was well mannered at the Stevenson House detention center and discussed several programs used by DYRS that Roscoe could benefit from. However, Mr. McCorquodale noted that should Roscoe be found guilty of the Possession of a Firearm during the Commission of a Felony charge and sentenced as an adult, DYRS would be very unlikely to be able to place him in any programs.
Our General Assembly has declared that youths who possess weapons during the commission of a felony must stand trial as adults. In this case, Roscoe is alleged to have made a statement that he intended to shoot a man who allegedly stole a small quantity of drugs from him. He also allegedly carried out his plan and fired at the victim while young children were near by. The potential for tragedy was high in this crime. Whether Roscoe's statements were mere youthful bravado and his actions in self-defense is for a jury to consider. But clearly, should the jury determine that Roscoe did intend to shoot at Harvey in order to either murder him or assault him, he is in need of serious rehabilitation beyond what can be offered in the limited time available in Family Court.
After carefully considering all the evidence, including Roscoe's current age, the factors weigh in favor of retaining jurisdiction of all Roscoe's charges in the Superior Court. In the first place, the charges are so inextricably intertwined that to sever them would almost defy logic, absent an extraordinary circumstance not present here. Secondly, the State has met its burden as to the strength of its case. Third, the fact that Roscoe will face adult incarceration if convicted in Superior Court and consequently will be less likely to benefit from any rehabilitative programs offered by DYRS weighs very heavily in favor of retaining jurisdiction in the Superior Court. Therefore, I find that if Roscoe is convicted of the offenses charged, neither his interest nor the interest of society would be served by confinement and the rehabilitative efforts of the Family Court. Rather, the interest of society, judicial economy, and Roscoe require that the Court find Roscoe nonamenable to the Family Court and DENY his motion for transfer of the proceeding to Family Court.