Opinion
I.D. No. 1412001733
11-25-2015
NAHREEM QAADIRBEY, Appellant, v. STATE OF DELAWARE, Appellee.
Benjamin S. Gifford, Esquire, Woloshin, Lynch & Natalie, P.A., 3200 Concord Pike, P.O. Box 7329, Wilmington, Delaware 19803, Attorney for Appellant. Amanda J. DiLiberto, Esquire, Deputy Attorney General, Department of Justice, 820 N. French Street, 7th Floor, Wilmington, Delaware 19801; Attorney for Appellee.
Upon Appellant's Appeal from the Court of Common Pleas of the State of Delaware in and for New Castle County:
AFFIRMED.
OPINION AND ORDER Benjamin S. Gifford, Esquire, Woloshin, Lynch & Natalie, P.A., 3200 Concord Pike, P.O. Box 7329, Wilmington, Delaware 19803, Attorney for Appellant. Amanda J. DiLiberto, Esquire, Deputy Attorney General, Department of Justice, 820 N. French Street, 7th Floor, Wilmington, Delaware 19801; Attorney for Appellee. WHARTON, J.
I. INTRODUCTION
Nahreem Qaadirbey ("Appellant") filed a Notice of Appeal on April 16, 2015 requesting judicial review of his April 9, 2015 conviction in the Court of Common Pleas for Noncompliance with Bond. In considering the appeal, the Court must determine whether the Court of Common Pleas impermissibly allowed the State to amend the Information during the State's rebuttal closing argument. Upon consideration of the pleadings before the Court and the record below, the Court finds that the Court of Common Pleas did not err. Accordingly, the Court of Common Pleas' decision is AFFIRMED.
II. FACTUAL AND PROCEDURAL CONTEXT
Appellant was arrested on December 4, 2014 and charged with one count of Noncompliance with Bond pursuant to 11 Del. C. § 2113. The Information provided:
QAADIRBEY, NAHREEM, on or about the 4th day of December, 2014, in the County of NEW CASTLE, State of Delaware, did knowingly breach a material condition of release by having contact with Ashley Leuallen after a no contact order was entered in New Castle County Superior Court on October 17, 2014 ...
A02
Appellant stood trial in the Court of Common Pleas on April 9, 2015. During the trial, it became clear that the evidence presented did not match the Information. Specifically, a no-contact order had been issued by the Justice of the Peace Court on October 16, 2014 and not the Superior Court on October 17, 2014. Appellant's counsel argued during closing argument that '[t]he State cannot possibly prove every element of [the] Information" because there was not a no-contact order issued by Superior Court nor was there an order entered into on October 17, 2014.
See Tr. 6: 6-8. (The Court took judicial notice of a Court Order showing that there was one no-contact order in place that was issued by the Justice of the Peace Court on October 16, 2014.).
Tr. at 49: 9-15.
In its rebuttal closing argument, the State moved to amend the Information to reflect the correct court and date on the no-contact order. In granting the State's motion, the Court of Common Pleas judge noted that Appellant "was not surprised or taken aback or hurt in any way" and that the misinformation did not "[go] to the heart of the matter." Appellant was then found guilty of Noncompliance with Bond in a bench trial. On April 16, 2015, Appellant filed the Notice of Appeal.
Tr. at 51: 6-8.
Tr. at 52: 16-17.
III. THE PARTIES' CONTENTIONS
Appellant argues that the Court of Common Pleas erred by permitted the State to amend the Information during the State's rebuttal closing argument. Appellant contends that the amendment deprived Appellant of the opportunity to present argument regarding the amended Information. Appellant asserts that "[a]llowing the State to amend the Information changing the issuing court is directly related to an element of the crime, and thus a material change." Appellant argues that he suffered prejudice because Appellant "had already presented his closing argument prior to the amendment of the charging document" and therefore was "robbed of the opportunity to argue the sufficiency of the evidence as to the newly-worded charge."
Appellant's Opening Br., D.I. 6, at 6.
Id.
Id. at 9.
Id. at 10.
The State argues that the Court of Common Pleas properly allowed the Information to be amended. The State asserts that Ct. of Com. Pl. Crim. R. 7(e) allows the Information to be amended at any time prior to a verdict being rendered. The State contends that the amendment did not result in Appellant being charged with an additional or different offense and that the mistake was one of form and not substance. The State asserts that Appellant did not suffer prejudice by the amendment because he was not surprised or unduly harmed. The State contends that Appellant had notice of the no contact order prior to trial and was "given a full and fair opportunity to defend against [the] allegations."
Appellee's Answ. Br., D.I. 7, at 7.
Id.
Id. at 8-9.
Id. at 9.
Id. at 10.
IV. STANDARD OF REVIEW
The Superior Court is authorized to consider appeals from the Court of Common Pleas in criminal matters. When addressing appeals from the Court of Common Pleas, the Superior Court acts as an intermediate appellate court, with the same function as that of the Supreme Court. In considering an appeal from the Court of Common Pleas to the Superior Court, the Superior Court determines whether there is legal error and whether the factual findings made by the trial judge are sufficiently supported by the record. Factual findings by the Court of Common Pleas are given deference and are reviewed for plain error. Legal questions are reviewed de novo.
Fiori v. State, 2004 WL 1284205, at *1 (Del. Super. May 26, 2004) (citing State v. Richards, 1998 WL 732960 (Del. Super. May 28, 1998).
Onkeo v. State, 957 A.2d 2, at * 1 (Table) (Del. 2008).
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
DiSabatino v. State, 808 A.2d 1216, 1220 (Del. Super. 2002).
V. DISCUSSION
A. The Court of Common Pleas Did Not Err in Allowing the State to Amend the Information During Rebuttal Closing Argument.
Ct. of Com. Pl. Crim. R. 7(e) provides that "the Court may permit an Information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced." An "additional or different offense" is one in which an essential element of the crime is substantively added or modified. Additionally, substantial rights of the defendant are not prejudiced when the Information "acquaint[s] the defendant with the offense charged sufficiently to enable him to prepare his defense and to protect himself against double jeopardy." Moreover, the Court disfavors "'fine combing' of an [Information] for formal and technical defects."
Ct. Com. Pl. Crim. R. 7(e).
See, e.g., Black v. State, 1990 WL 168291, at *1-2 (Del. Sept. 12, 1990)(holding that the amendment was substantive when "Black was originally charged with first degree robbery based on information which stated that force was applied "to compel ... Barbara Czajkowski to deliver up property" to him. After the jury had been sworn, but before trial had started, the trial judge allowed the State to amend the robbery count to reflect that force was applied to "overcome the resistance to taking of property." The difference between the original information and the amended information is based upon the statutory language of 11 Del.C. § 831(a) which defines second degree robbery as using or threatening to use force upon another person with intent to either 1) prevent or overcome resistance or 2) compel the owner or another to deliver up property."); Harley v. State, 534 A.2d 255, 256-57 (Del. 1987)(holding that it was legal error for to amend an indictment for possession of a deadly weapon during the commission of a felony to reflect that the weapon used was a "jack stand" rather than a "tire iron" because the nature and description of the instrument was an essential element of the crime of possession of a deadly weapon during the commission of a felony).
State v. Blendt, 120 A.2d 321, 324 (Del. Super. 1956).
Id. --------
Pursuant to 11 Del. C. § 2113, the State carries the burden to prove that a court imposed conditions of release upon Appellant and Appellant knowingly violated one of the conditions. The State carries its burden by establishing that any court imposed conditions of release upon Appellant and that Appellant breached a condition of release. Because the evidence is clear that a court, whether it was the Superior Court or the Justice of the Peace Court, issued a no-contact order barring Appellant from contact with the victim, the amendment of the Information was to form rather than substance.
Because the amended Information did not change the substance of the charges against Appellant, the amendment did not substantially prejudice Appellant's rights. Appellant was sufficiently able to prepare his defense and protect himself from double jeopardy. For purposes of preparing a defense for the Noncompliance with Bond charge, the specific inaccuracies contained in the original Information were immaterial. Prior to trial, Appellant was aware that the State alleged that there was one no-contact order in place at the time that Appellant made contact with the victim and that Appellant had violated the no-contact order. Appellant's defense at trial was that he could not have breached a condition of his release because he was unaware of any no-contact order. Therefore, whether the no-contact order was issued by the Superior Court or Justice of the Peace Court was inconsequential to Appellant's defense.
Additionally, Appellant is protected from double jeopardy because there was only one no-contact order in place at the time of the alleged contact with the victim that named the victim. Because there was only one no-contact order in place, the Information was sufficiently accurate to bar any attempt to subsequently prosecute Appellant for the same offense. Therefore, the Court of Common Pleas did not err in concluding that Appellant was not substantially prejudiced by the amendment.
VI. CONCLUSION
The Court finds that the Court of Common Pleas did no err in amending the Information during the State's rebuttal closing argument. Therefore, the decision of the Court of Common Pleas is hereby AFFIRMED.
IT IS SO ORDERED.
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/s/ Ferris W. Wharton, Judge