Opinion
Docket No. 292, 1998.
March 15, 1999.
Appeal from Superior Court, New Castle County, CrA 97-06-1192-1195.
AFFIRMED.
Unpublished Opinion is below.
TIMAIYA C. PEAK, Defendant below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 292, 1998. In the Supreme Court of the State of Delaware. Submitted: March 2, 1999. Decided: March 15, 1999.
Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr.A. Nos. 97-06-1192 through 1195.
Before VEASEY, Chief Justice, WALSH, and HARTNETT, Justices.
ORDER
This 15th day of March, 1999 upon consideration of the briefs of the parties it appears to the Court as follows:
(1) In this appeal from the Superior Court, following his conviction on charges of robbery first degree, possession of a firearm during the commission of a felony, and three counts of reckless endangering in the second degree the appellant, Timaiya C. Peak ("Peak"), alleges a single claim of error: that the trial judge gave an erroneous instruction to the jury regarding accomplice testimony. Specifically, Peak claims that in instructing the jury concerning its treatment of the testimony of an accomplice, who testified for the State, the court departed from the Delaware Criminal Code Pattern Jury Instructions by deleting the word "suspicion" from the standard instruction on that point.
The Pattern Jury Instruction provides:
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 (emphasis supplied). Delaware Criminal Code, Pattern Jury Instructions, Instruction 4C (1974).
(2) The State replies that modification of a pattern jury instruction was within the trial court's discretion and, in any event, under the evidence presented in this case, was harmless error.
(3) The accomplice testimony instruction contained in the Delaware Criminal Code Pattern Jury Instructions is sanctioned by a series of decisions of this Court. Bland v. State, Del. Supr., 263 A.2d 286, 289 (1970); Jacobs v. State, Del. Supr., 358 A.2d 725, 729 (1976); Saunders v. State, Del. Supr., 401 A.2d 629, 631 (1979), cert. denied, 449 U.S. 845 (1980); and Minor v. State, Del. Supr., 645 A.2d 569 (1994). Moreover, the adoption of pattern jury instructions represents an institutional consensus by the Superior Court that these instructions should be followed in all cases unless unusual circumstances dictate modification.
(4) In this case, the trial court, sua sponte, modified the instruction to delete a term which, while arguably redundant when used in connection with the words "great caution," was deliberately selected to assist the jury in its evaluation of certain evidence. Accordingly, we believe it was error for the court to depart from the pattern jury instructions in this case. We conclude, however, that the error in this case was harmless beyond a reasonable doubt in view of the fact that Peak's conduct was corroborated by other prosecution witnesses, and the State's evidence of Peak's participation in the offenses charged did not rest solely on the testimony of the accomplice, Dereck Brown. Accordingly, we affirm under the harmless error exception. Jackson v. State, Del. Supr., 643 A.2d 1360, 1369 (1994), cert. denied, 513 U.S. 1136 (1995).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
/s/ Joseph T. Walsh, Justice