Opinion
Def. ID# 9805014088.
January 28, 2000.
Appeal from the Court of Common Pleas
James E. Liguori, Esquire, 46 The Green, Dover, DE 19903
Adam Gelof, Esquire, Department of Justice, Georgetown, DE 19947
Dear Counsel:
In this appeal from a conviction on March 10, 1999, in the Court of Common Pleas, the defendant raises a single issue of error. The defendant argues that the instruction the Court of Common Pleas gave was so deficient as to constitute reversible error. This Court disagrees and affirms the conviction below.
On May 25, 1998, the defendant was driving his vehicle near Lewes, Delaware, when he veered across the center line, crossed into the next lane, rode over a curb and struck Barbara Swecker, who was in her yard. The defendant testified that a dog was in his path, causing him to swerve. He immediately left the scene, but came back several minutes later.
The brief of the State of Delaware ("the State") notes that witnesses indicated they observed no cause or reason for the defendant's peculiar driving. When interviewed by the police officer, the defendant initially reported that another vehicle had crossed the center line, traveling toward him, and thus, caused him to swerve. At the scene, the defendant told the officer about a dog in the roadway and/or a person walking a dog and/or a bicyclist. The jury found the defendant guilty of vehicular assault in the second degree.
Defendant argues that the jury instruction which the Court gave as to vehicular assault in the second degree was so deficient as to constitute reversible error.
At the prayer conference, the defendant offered a proposed instruction taken from the Superior Court pattern instruction form book listed as 10-A-1. Specifically, the defendant desired to have the jury instructed on the language that explained the difference between criminal negligence and civil negligence. The proposed language appears in paragraphs two and three of the submitted instruction, as set forth below:
Before explaining these specific charges of criminal negligence, I point out that criminal negligence differs markedly from civil negligence. Whereas civil negligence may be defined as any deviation from the standard of conduct that a reasonable person would observe in the situation, criminal negligence is a gross deviation from the standard of conduct that a reasonable person would observe in the situation. Thus, any violation of a statutory rule of the road constitutes civil negligence, whereas it would be criminal negligence only if you are satisfied that the violation constituted a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
Another difference between criminal negligence and civil negligence arises from the different burdens of proof in civil and criminal cases. Whereas the party alleging negligence in a civil case has the burden of proving it by a preponderance of the evidence, in a criminal case the State has the greater burden of proving criminal negligence beyond a reasonable doubt.
The instruction given by the Court was as follows:
[T]he information charges the defendant with vehicular assault second degree in violation of Section 628 of the criminal code. This section provides in pertinent part as follows:
(a) A person is guilty of vehicular assault in the second degree when:
(1) While in the course of driving a motor vehicle the criminally negligent driving of said vehicle causes serious physical injury to another person.
In order to find the defendant guilty of vehicular assault second degree, you must find that all of the following elements have been established beyond a reasonable doubt:
(1) The defendant was driving a motor vehicle;
(2) The defendant was driving the motor vehicle in a criminally negligent manner.
A person drives a motor vehicle with criminal negligence when he fails to perceive or recognize that there is a risk that serious injury will result from the manner in which he is driving the vehicle. Moreover, the risk of serious physical injury must be such that the defendant's failure to perceive it constitutes a gross; that is, a glaring or flagrant, deviation from the standard of conduct that a reasonable person would observe in this situation.
Therefore, in order to find that the defendant was criminally negligent, you must find not only that he failed to perceive the risk that serious physical injury would result from his conduct, but also that the risk is so great that a reasonable person under the circumstances would have seen it and would have altered his conduct to avoid the risk.
3. That the criminally negligent driving of the vehicle caused serious physical injury to Barbara E. Swecker. Earlier in the proceedings, the parties agreed by stipulation that Barbara E. Swecker suffered serious physical injury.
Discussion
The defense, citing to Peak v. State, Del. Supr., No. 292, 1998, Walsh, J. (March 15, 1999) (ORDER), argues that the court below deviated from the pattern jury instructions and therefore, there was reversible error.In Peak v. State, the Supreme Court found that it was error for the Superior Court to deviate from the "pattern jury instruction" as to accomplice testimony instruction. However, deviation in Peak was found to be harmless error based upon the jury instruction and the case law interpreting the jury instruction.
I am satisfied that Peak was limited to the particular instruction in that case since the Supreme Court had previously reviewed and upheld the language.
Much good work was done in 1973 and 1974 by the Committee originally appointed by Chief Justice Daniel F. Wolcott to formulate a set of jury instructions keyed to the then new Criminal Code adopted by the Legislature in 1973. This Committee was chaired by Justice Joseph Walsh. It is noteworthy in the introduction that the Committee recognized that it was drafting "suggested jury instructions". Also, the Committee noted a word of caution in the introduction when it advised, "these instructions are intended as guidelines and should be used in cases where they are applicable. Experience may prove that these instructions should be modified or supplemented depending upon the issues of fact and law presented at the trial."
Experience shows that the Committee was correct and that the jury instructions are a work in progress. Currently, the Honorable Richard R. Cooch is chairing an advisory committee on updating the suggested jury instructions. I also note that while the Superior Court has been referencing and using these instructions for over twenty-five years, they do not appear to have been formally adopted by the Court.
The State points out that the language in the proposed jury instruction manual pertaining to a civil standard of negligence versus a criminal standard of negligence actually was added in approximately 1933 per a memorandum from Judge Bernard Balick to Judge Joshua Martin. This is the type of evolution that was expected by the Committee, but as these are guidelines and the proposed language was one judge's modification fitting that judge's case at hand, there is nothing that requires other judges to also adopt that language.
Title 11 Del. C. § 231(d) of the Delaware Code defines criminal negligence as follows:
A person acts with criminal negligence with respect to an element of an offense when the person fails to perceive a risk that the element exits or will result from the conduct. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
The pattern jury instruction adopted in 1974 incorporates this definition and does not include the proposed language the defendant offers as being critical, i.e., the difference between civil negligence and criminal negligence. I am satisfied that the instruction given, read as a whole, is correct as a matter of law and is not misleading. Moore v. State, Del. Supr., 456 A.2d 1223 (1983). I do not find any error on the part of the court below in giving the criminal negligence instruction which tracks the Code and the 1974 suggested instructions.
The conviction below is affirmed.
IT IS SO ORDERED.
Very truly yours,
T. Henley Graves