Opinion
No. 22, 2003.
Submitted: August 19, 2003.
Decided: September 24, 2003.
Court Below: Superior Court of the State of Delaware in and for Kent County Cr. ID No. 0105014558
AFFIRMED
Unpublished Opinion is below
BORDLEY v. STATE, 22 (Del. 9-24-2003) LATASHA BORDLEY, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 22, 2003. Supreme Court of Delaware. Submitted: August 19, 2003. Decided: September 24, 2003.
Court Below: Superior Court of the State of Delaware in and for Kent County Cr. ID No. 0105014558
Before VEASEY, Chief Justice, HOLLAND and STEELE, Justices.
ORDER
Myron T. Steele, Justice
This 24th day of September, 2003, upon consideration of the parties' briefs, it appears to this Court that:
1. A Superior Court jury convicted appellant, Latasha Bordley, of delivery of a narcotic schedule II controlled substance and second-degree conspiracy. Bordley appeals from her convictions based upon the trial judge's denial of her request for a specific accomplice testimony jury instruction and her motion to be sentenced outside of the mandatory statutory framework.
2. Police arrested Bordley after a staged drug transaction. She went to trial twice. Her first trial resulted in a mistrial. Bordley elected not to testify at her second trial. The State presented two civilian witnesses at Bordley's second trial. The first, Maria Davis, an un-indicted co-conspirator, was a drug user who stole from her employer and who had converted marital assets to cash in order to purchase drugs. She contacted the Felton Police to arrange a staged drug purchase after pressure from her husband. The second, Shar'ron Donald Cry, entered a guilty plea to a charge of possession with intent to deliver. The conviction subjected Cry to a potential Level V sentence of 10 years, but as a result of a plea agreement, the Court sentenced Cry to three years at Level V.
3. The staged drug transaction involved Davis calling Bordley and arranging the purchase of $400 worth of crack cocaine. Bordley agreed to the sale and instructed Davis to meet someone at the Hillis Market in Felton, Delaware. Bordley then gave Cry a bag of crack cocaine to be delivered to Davis. Cry went to the Hillis Market with a friend, Jesse Taylor, in Taylor's red Dodge pickup truck. When the truck arrived at the Hillis Market, Cry got out of the truck's passenger side and instructed Davis to get in. Davis gave Taylor $400 previously marked by the Felton Police Department.
Immediately following the exchange of the money, the Felton Police surrounded the truck and seized the marked $400 from Taylor. No physical transfer of crack cocaine took place, however, between Davis and Cry. Police simply seized a yellow plastic bag containing crack cocaine from Cry's pocket.
4. At trial, Bordley requested a specific jury instruction intended to explain the significance of Davis and Cry's accomplice testimony. The instruction proposed that "the testimony of an alleged accomplice should be examined by you [the jury] with great suspicion and great caution." Bordley based her request on language found in Bland v. State. The trial judge denied Bordley's request.
263 A.2d 286, 289 (Del. 1970).
5. A Kent County Superior Court jury convicted Bordley of delivery of a narcotic schedule II controlled substance under 16 Del C. § 4751(a) and second-degree conspiracy under 11 Del. C. § 512(1) , but found Bordley not guilty on a possession of drug paraphernalia charge.
DEL. CODE ANN. tit. 16 Del. C. § 4751(a) (2003).
DEL. CODE ANN. tit. 11 Del. C. § 512(1) (2003).
After her conviction but before sentencing, Bordley filed a motion to sentence outside the mandatory statutory provisions of 16 Del. C. § 4763(a)(3). The trial judge denied that motion and sentenced Bordley to thirty years incarceration at Level 5 on the delivery conviction. Bordley's sentence included a fifteen year mandatory minimum. Bordley received this enhanced sentence pursuant to 16 Del. C. § 4763(a)(3) because this was her second conviction for delivery of a narcotic schedule II substance. The judge sentenced Bordley to two years consecutively on the second-degree conspiracy charge, suspended for Level 2 probation.
DEL. CODE ANN. tit. 16 Del. C. § 4763(a)(3) (2003). This section states:
In any prosecution for violation of § 4751 or 4761(a)(1) where a defendant has previously been convicted of any offense under this chapter, or under any statute of the United States or of any state relating to the delivery or possession with intent to deliver of a controlled substance or counterfeit substance classified in Schedules I and II as a narcotic drug, the minimum term of imprisonment shall be 30 years and the maximum term for such conviction shall be 99 years and 15 years of such minimum term shall be a mandatory minimum term of imprisonment and shall not be subject to suspension and no person shall be eligible for probation or parole during such portion of such minimum term.
6. Bordley raises two arguments for this Court's consideration. First, Bordley argues that the trial judge abused his discretion when he refused to follow Bland and denied her requested accomplice testimony jury instruction. Second, Bordley argues that the judge abused his discretion when he denied her motion to be sentenced outside of the mandatory statutory framework. Bordley claims that she should not be sentenced under 16 Del. C. § 4763(a)(3), the enhanced penalty statute, because there was no physical delivery of the crack cocaine to Davis.
7. With respect to Bordley's first argument, we affirm the trial judge's decision denying Bordley's request for a specific jury instruction based on Bland. In Bland, this Court did indeed approve an accomplice liability jury instruction, stating that:
"A portion of the evidence presented by the State is the testimony of admitted participants in the crime with which these defendants are charged. For obvious reasons, the testimony of an alleged accomplice should be examined by you with suspicion and great caution. . . ."
Bland, 263 A.2d at 289.
Bland, 263 A.2d at 289.
However, four years after Bland, a committee appointed by Chief Justice Wolcott and chaired by Justice Walsh drafted a set of pattern jury instructions for use with the newly enacted Delaware Criminal Code. The revised Delaware Pattern Jury Instructions dealing with accomplice testimony deleted both the "suspicion" and "great caution" language that this Court had previously approved in Bland.
Cabrera v. State, 747 A.2d 543, 545 (Del. 2000).
See the revised pattern jury instruction regarding accomplice testimony. This revised instruction states:
The testimony of the alleged accomplice, someone who said that [he/she] participated with another person in the commission of a crime, has been presented in this case.
___________ may be considered an alleged accomplice in this case.
The fact that an alleged accomplice has entered a plea of guilty to the offense charged does not mean that any other person is guilty of the offense charged.
As stated elsewhere in these instructions, you are the sole judges of the credibility of each witness and of the weight to be given to the testimony of each. You may consider all the factors which might affect and witness' credibility, including whether the testimony of the accomplice has been affected by self-interest, by an agreement [he/she] may have with the State, by [his/her] own interest in the outcome of the case, by prejudice against the Defendant, and whether or not the testimony is corroborated by any other evidence in the case.
Compare with Delaware Criminal Code, Pattern Jury Instructions, Instruction 4C. This is the original pattern jury instruction regarding accomplice testimony. This instruction stated:
A portion of the evidence presented by the State is the testimony of an admitted participant in the crimes with which the defendant is charged. For obvious reasons, the testimony of an alleged accomplice should be examined by you with suspicion and great caution. This rule becomes particularly important if there is nothing in the evidence, direct or circumstantial, to corroborate the alleged accomplice's accusation that the defendant participated in the crime. Without such corroboration, you should not find the defendant guilty unless, after careful examination of the alleged accomplice's testimony, you are satisfied beyond a reasonable doubt that it is true and that you may safely rely upon it. Of course, if you are so satisfied, you would be justified in relying upon it, despite the lack of corroboration, and in finding the defendant guilty.
8. Furthermore, in Cabrera, this Court held that the pattern jury instructions "are a most valuable resource and should be consulted in the first instance when the trial court is conducting a prayer conference and selecting the wording of its instructions." We recognize that the pattern instructions are not mandatory and that this Court has upheld instructions that have varied from the pattern jury instructions. As a general rule, however, a defendant is not entitled to a particular instruction, but she does have the unqualified right to a correct statement of the law. In Cabrera, this Court affirmed a trial judge's instruction that did not match the language approved in Bland, but instead incorporated the revised pattern jury instruction regarding accomplice testimony and instructed the jury that the accomplice's testimony should be examined "with caution." Although the trial judge in the present case did not instruct the jury to examine Cry's testimony "with caution", the trial judge should be granted wide latitude in framing his jury instruction. Moreover, "a trial court's instructions will not be the basis for reversible error if they [correctly state the law and] `are reasonably informative and not misleading, judged by common practices and standards of verbal communication.'"
Cabrera, 747 A.2d at 545.
Floray v. State, 720 A.2d 1132, 1138 (Del. 1998).
Id.
Cabrera, 747 A.2d at 544.
Id. at 543.
Sirmans v. Penn, 588 A.2d 1103, 1104 (Del. 1991) (citing Haas v. United Technologies Corp., 450 A.2d 1173, 1179 (Del. 1982)) (quoting Baker v. Reid, 57 A.2d 103, 109 (Del. 1947); Culver v. Bennett, 588 A.2d 1094 (Del. 1991)).
9. In the present case, the trial judge read the pattern jury instruction and not the defendant's proposed jury instruction. The instruction given did, in fact, warn that the testimony of Cry, the accomplice, may be affected by self-interest, by an agreement she may have with the State, by her own interest in the outcome, and by prejudice against the defendant. The record demonstrates that the pattern jury instruction used by the trial judge was a correct statement of the law and adequately guided the jury as trier of fact and determiner of credibility. Accordingly, the trial judge followed well-settled standards governing jury instructions. Under these circumstances, there is no basis to conclude that he abused his discretion by refusing to give the requested instruction.
10. The State contends that Bordley's requested jury instruction would violate Delaware's Constitution, Article IV, Section 9 because "judges shall not charge juries with respect to matters of fact, but may state the questions of fact in issue and declare the law." We need not reach the issue of whether Bordley's proposed instruction would violate the Delaware Constitution because the trial judge did not abuse his discretion by reading the pattern jury instruction.
DEL. CONST. art. IV, § 19.
11. With respect to Bordley's second argument, we affirm because the sentencing judge did not abuse his discretion when he refused to sentence Bordley outside of the mandatory statutory framework. Title 16 Del. C. § 4763(a)(3) of the Delaware Code provides an enhanced penalty for a second drug delivery conviction (i.e. a 30 year minimum term of imprisonment with a 15 year mandatory minimum term). Bordley argues that she is only guilty of attempted cocaine delivery because Cry never physically transferred the crack cocaine to Davis. Bordley also claims that the sentencing judge should have permitted her to avoid the mandatory minimum sentence because the accomplice, Cry, avoided the statutory mandatory minimum by plea agreement. However, the statutes at issue here, 16 Del. C. § 4751 and 4763 , are unambiguous and we agree with the trial judge's analysis as set forth in the record:
DEL. CODE ANN. tit. 16 Del. C. § 4763(a)(3) (2003).
DEL. CODE ANN. tit. 16 Del. C. § 4751 (2003). This section states:
(a) Except as authorized by this chapter, any person who manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance or a counterfeit controlled substance classified in Schedule I or II which is a narcotic drug is guilty of a class C felony and shall be fined not less than $ 5,000 nor more than $ 50,000.
(b) Except as authorized by this chapter, any person who manufactures, delivers or possesses with the intent to manufacture or deliver a controlled substance or a counterfeit controlled substance classified in Schedule III, IV or V which is a narcotic drug is guilty of a class E felony and shall be fined not less than $ 3,000 nor more than $ 15,000.
(c) Except as authorized by this chapter, in cases where death occurs as a result of the use or consumption of a controlled substance or counterfeit controlled substance classified in Schedule I, II, III, IV or V which is a narcotic drug, any person who is convicted of manufacturing or delivering such drug shall be guilty of a class B felony and shall be fined not less than $ 10,000 nor more than $ 100,000.
(d) Where an individual is convicted of a violation of subsection (a), subsection (b) or subsection (c) of this section and the Attorney General may move to sentence the defendant as a nonaddict, the court shall conduct a hearing at which the Attorney General shall have the burden of proof by a preponderance of the evidence that the defendant is a nonaddict. If the court, after hearing, is satisfied that the defendant is, and was at the time of the offense, not addicted to controlled substances, then the following enhanced penalties shall apply:
(1) For the first violation of this section a mandatory minimum sentence of 6 years to be served at Level V.
(2) For the second or subsequent violation of this section a mandatory minimum sentence of 12 years to be served at Level V.
These minimum sentences may not be suspended by the court.
DEL. CODE ANN. tit. 16 Del. C. § 4763 (2003).
All right. I have considered Ms. Bordley's motion. A practice has developed in this county, of allowing defendants charged with delivery of a controlled substance to enter into plea agreements involving a plea of attempted delivery. Although the precise statute involved is not always expressly set forth in such plea agreements, it is implied that the plea is entered pursuant to the attempt to commit a crime provision of Title 11. This practice has developed to ameliorate the often harsh effect of minimum mandatory sentences for second offenders by offering an alternative which allows for a sentence recommendation which may be more appropriate in the particular case. In this case, however, the defendant was tried for delivery under 16 Delaware Code, Section 4751. Under the definitional provisions set forth in 16 Delaware Code, Section 4751, a delivery expressly includes an attempted transfer. Therefore, although this case did in fact involve an attempted transfer or attempted delivery, by statutory definition it is a delivery and the defendant's conviction under 16 Delaware Code, Section 4751 is legally correct. Therefore, the defendant must be sentenced for a violation of 16 Delaware Code, Section 4751, and unfortunately in Ms. Bordley's case that includes a minimum mandatory sentence of 15 years. We agree.
State v. Bordley, No. 0105014558 (Del.Super.Ct. Dec. 18, 2002).
NOW, THEREFORE, IT IS ORDERED, that the judgment of the Superior Court in AFFIRMED.