Opinion
I.D. No. 0004019366 I.D. No. 0004004124
November 13, 2001
Upon Defendants' Petition of Certification of Questions of Law. Granted.
James V. Apostolico, Andrew J. Vella, Deputy Attorneys General, Wilmington, Delaware, Attorneys for the State.
Kathleen M. Jennings, Oberly Jennings, P.A., Wilmington, Delaware, Attorney for Defendant, Jose Ocampo.
Eugene J. Maurer, Jr., Eugene J. Maurer, Jr., P.A., Wilmington, Delaware, Attorney for Defendant, Abigail Caliboso.
Order
This 13th day of November, 2001, upon review of the Defendants' Petition for Certification of Questions of Law and the State's response, the Court finds that:
(1) Defendants, Jose Ocampo and Abigail Ocampo, are charged with Murder by Abuse or Neglect in the Second Degree for allegedly causing the death of their infant. Specifically, the State alleges that Defendants abandoned the infant, which led to her death.
(2) On October 18, 2001, the Court denied Defendants' joint Motion for a Non-Jury Trial. The Court stated, in dicta, in its decision that a jury would not have to consider the issue of whether Defendants had the "ability and financial means to provide adequate care and protection" to their infant, as set forth in 11 Del. C. § 1103(c). State v. Ocampo, Del. Super., Cr. A. No. IN01-03-0548, Goldstein, J. (Oct. 18, 2001), Mem. Op. at 6. The Court explained that, where the act of neglect alleged under 11 Del. C. § 633 was that of abandonment, the above-quoted language was not applicable. Id.
(3) Defendants have also filed a joint Motion to Dismiss the indictments against them. Defendants' motion calls into question the proper interpretation of the language of 11 Del. C. § 1103(c), which sets forth the definition of "neglect" to be used in 11 Del. C. § 633. "Neglect" is defined in 11 Del. C. § 1103(c) as:
threatening or impairing the physical, mental or emotional health and well-being of a child through inadequate care or protection, nontreatment or abandonment by the child's custodian or other person in whose temporary custodial care the child is left, when such custodian or other person has the ability and financial means to provide adequate care or protection, but does not or will not do so.
Defendants argue in their Motion to Dismiss that the above-quoted languages violates the Equal Protection clause of the fourteenth amendment to United States Constitution. In considering Defendants' motion, it will be necessary for the Court to decide the issue of the proper interpretation of the language of 11 Del. C. § 633 and 11 Del. C. § 1103(c).
(4) Defendants have now filed a Petition for Certification of Questions of Law pursuant to Superior Court Criminal Rule 37(f) and Supreme Court Rule 41. The State opposes the certification.
(5) In their current petition, Defendants ask that the Court certify three questions to the Supreme Court:
First, whether the phrase, "ability and financial means to provide adequate care and protection," as set forth in 11 Del. C. § 1103, apply to a charge of Murder by Neglect in the Second Degree where the State alleges that the child was abandoned, or whether the phrase apply only to allegations of neglect where the State alleges "inadequate care or protection?";
Second, whether the statutory distinction between those with the "financial means" to provide adequate care and protection and those without "financial means," found in 11 Del. C. § 1103, violates the State and Federal Equal Protection Clauses; and
Third, whether the word, "ability," in the context of the language of 11 Del. C. § 1103, encompasses both physical and psychological ability.
(6) After considering the arguments of the parties, the Court finds that the questions should be certified to the Supreme Court. This Court acknowledges that, "it is preferable as a matter of orderly administration of justice for the trial courts of this State to decide in the first instance all questions of law, including new and challenging legal questions." State Farm Mutual Auto. Ins. Co. v. Dann, Del. Supr., ___ A.2d ___, No. 538, 2000, Per curiam, (Mar. 26, 2001), at 2. However, the Court believes that this is one of the compelling instances where there are, "important and urgent reasons requiring an exception to this principle when exigencies of time or a strong showing of judicial economy" that dictate certification. Id.
(7) The questions of law Defendants request to be certified fall under Supreme Court Rule 41(b)(ii), because, to the Court's knowledge, the questions are of first instance for the Supreme Court, and under Rule 41(b)(iii), because they "relate to the constitutionality, construction or application of a statute of this State which has not been, but should be, settled by the Court." Although 11 Del. C. § 1103 is not a new statute, the courts have yet to interpret the scope of the language at issue, especially in relation to a prosecution for Murder by Abuse or Neglect pursuant to 11 Del. C. § 633. As noted by Defendants, amendments to 11 Del. C. § 633 in 1999 greatly expanded the scope of conduct that can be charged under the statute, increasing the urgency of a proper interpretation of the language at issue here.
(8) In addition, Defendants have represented to the Court that the entire scope of their defense will be determined by the interpretation of the language of 11 Del. C. § 1103(c). Defendants state that, if the language of the statute is interpreted so that the "ability and financial means" language does not apply to prosecutions for Murder by Neglect alleging abandonment, Defendants would not be able to present proposed testimony "which goes to the heart of their contemplated defense" and that, as a result, the trial would result in a near certain conviction.
(9) If the Court were to rule that the "ability and financial means" language does not apply to Defendants' prosecution, Defendants would certainly appeal their conviction to the Supreme Court. If the Supreme Court then ruled that the Court's interpretation of the language at issue was erroneous, the matter would have to be retried in order to give Defendants the opportunity to address Defendants' "ability and financial means" to provide adequate care and protection of their infant. Therefore, the interest of judicial economy is also strongly implicated in these circumstances.
For the foregoing reasons, the Court finds that there are important and urgent reasons for determination by the Supreme Court of the questions presented. Defendants' Petition for Certification of Questions of Law is therefore GRANTED.
IT IS SO ORDERED.
Carl Goldstein, Judge
oc: Prothonotary
CERTIFICATION OF QUESTIONS OF LAW
This 13th day of November, 2001, the Court having found that:
(1) The nature and stage of the proceedings are:
(a) On March 26, 2001, the State indicted Defendants, Abigail Caliboso and Jose Ocampo, charging them with Murder by Abuse or Neglect in the Second Degree pursuant to 11 Del. C. § 633.
(b) Defendants filed a joint Motion for Non-Jury Trial. On October 18, 2001, the Court denied Defendants' motion.
(c) Defendants have filed a joint Motion to Dismiss the Indictments against them, which is pending before the Court.
(2) The following facts are undisputed:
(a) Defendants are charged with Murder by Abuse or Neglect in the Second Degree. Specifically, the indictment charges that Defendants, "did with criminal negligence cause the death of the newborn baby girl of defendant Caliboso and of the defendant Ocampo through an act of neglect of the baby."
(b) The State specifies that the act of neglect allegedly committed by Defendants was that of the abandonment of their infant.
(c) Defendants' Motion to Dismiss calls into question the proper interpretation of the language of 11 Del. C. § 1103(c), which sets forth the definition of "neglect" to be used in 11 Del. C. § 633.
(d) Eleven Del. C. § 633 sets forth the elements of the crime of Murder by Abuse or Neglect in the Second Degree. Eleven Del. C. § 633(a) provides:
A person is guilty of murder by abuse or neglect in the second degree when, with criminal negligence, the person causes the death of a child:
(1) Through an act of abuse and/or neglect of such child . . .
(e) "Neglect" is defined in 11 Del. C. § 1103(c) as:
threatening or impairing the physical, mental or emotional health and well-being of a child through inadequate care or protection, nontreatment or abandonment by the child's custodian or other person in whose temporary custodial care the child is left, when such custodian or other person has the ability and financial means to provide adequate care or protection, but does not or will not do so.
(3) The questions of law set forth below should be certified to the Supreme Court of the State of Delaware for the following reasons:
(a) The questions of law are of first instance for the Supreme Court.
(b) The questions of law implicated relate to the constitutionality, construction, and application of 11 Del. C. § 633 and 11 Del. C. § 1103, which have not been, but should be, settled by the Court.
(4) The important and urgent reasons for an immediate determination by the Supreme Court of the questions certified are:
(a) Although 11 Del. C. § 1103 is not a new statute, the courts have yet to interpret the scope of the language at issue, especially in relation to a prosecution for Murder by Abuse or Neglect pursuant to 11 Del. C. § 633.
(b) Amendments to the language of 11 Del. C. § 633 in 1999 greatly expanded the scope of conduct that can be charged under the statute, increasing the urgency of a proper interpretation of the language at issue here.
(c) Defendants have represented to the Court that the entire scope of their defense will be determined by the interpretation of the language of 11 Del. C. § 1103(c). Defendants state that, if the language of the statute is interpreted so that the "ability and financial means" language does not apply to prosecutions for Murder by Neglect alleging abandonment, Defendants would not be able to present proposed testimony "which goes to the heart of their contemplated defense" and that, as a result, the trial would result in a near certain conviction.
(d) If the Court were to rule that the "ability and financial means" language does not apply to Defendants' prosecution, Defendants would certainly appeal their conviction to the Supreme Court. If the Supreme Court then ruled that the Court's interpretation of the language at issue was erroneous, the matter would have to be retried in order to give Defendants the opportunity to address Defendants' "ability and financial means" to provide adequate care and protection of their infant. Defendants could reasonably expect their defense to suffer from the delay entailed.
(e) If Defendants' convictions were reversed by the Supreme Court due to this Court's erroneous interpretation of the statutes at issue, resulting in retrial, judicial economy would be compromised.
(5) If certification is accepted, it is recommended that Defendants, Jose Ocampo and Abigail Caliboso, be appellants for purposes of the caption of any filings in the Supreme Court of Delaware and that the State be appellee for purposes of the caption on any filing in the Supreme Court of Delaware with respect to the questions certified.
NOW, THEREFORE, IT IS ORDERED that the following questions of law are certified to the Supreme Court of the State of Delaware for disposition in accordance with Rule 41 of the Supreme Court:
1. Does the phrase, "ability and financial means to provide adequate care and protection" found in 11 Del. C. § 1103(c) apply to a charge of Murder by Neglect in the Second Degree where the act neglect the State alleges is abandonment, or does the phrase apply only to allegations of neglect where the State alleges "inadequate care or protection?"
2. Does the statutory distinction, set forth in 11 Del. C. § 1103(c), between those with the "financial means" to provide adequate care and protection and those without "financial means," violate the State and Federal Constitutional Equal Protection Clauses?
3. Does the word, "ability," in the context of 11 Del. C. § 1103(c) encompass both physical and psychological ability to provide adequate care and protection? Dated:November 13, 2001
Carl Goldstein, Judge
oc: Prothonotary