Opinion
ID. No. 0510023059A.
Submitted: March 30, 2007.
Decided: April 24, 2007.
On the State's Request to Rely on the "Substantial Planning" Statutory Aggravating Factor.
GRANTED..
Christina M. Showalter, Esquire, Gregory C. Strong, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware.
Jennifer Kate Aaronson, Esquire, Wilmington, Delaware.
Gregory M. Johnson, Esquire, Wilmington, Delaware.
Dear Counsel:
The Court, under the particular circumstances of this capital murder case, will allow the State to rely on the "substantial planning" aggravating factor in the event Defendant should be convicted of Murder First Degree. (This assumes that the facts, as developed during the "guilt" phase of the trial, warrant such reliance by the State).
11 Del. C. § 4209(e)(1)(u) states: "The murder was premeditated and the result of substantial planning. Such planning must be as to the commission of the murder itself and not simply as to the commission or attempted commission of any underlying felony."
The alleged murder took place on October 18, 2005. Defendant was indicted in June 2006. Bail was unopposed by the State and therefore no proof positive hearing was ever held. A scheduling conference with the Court and counsel was held on October 27, 2006. At that time, the Court set a September 5, 2007 trial date, in addition to other deadlines. Also at that October 27 conference, the Court asked if the State would be able to advise the Court and counsel by November 15, 2006 as to the statutory aggravating circumstance(s) upon which it intended to rely. The State advised that it was agreeable to do so and then, in fact, did notify the Court and Defendant on November 15 that it intended to rely only on Defendant's previous conviction as a juvenile in 1995 for Assault First Degree.
11 Del. C. § 4209(c) otherwise provides that the State notify the Court and the defendant of the statutory aggravating factor(s) after a verdict of guilt has been rendered.
11 Del. C. 4209(e)(1)(i) states: "The defendant was previously convicted of another murder or manslaughter or of a felony involving the use of, or threat of, force or violence upon another person."
However, at a conference held on January 30, 2007, the State for the first time suggested that it might ultimately seek to rely on the "substantial planning" statutory aggravator. Thereafter, on February 7, 2007, the State advised the Court and counsel in writing that it did intend to rely on this additional statutory aggravator because the State had developed further evidence in the case (including a statement of a key witness), apparently after November 15.
Defendant has objected, arguing that the State agreed to be subject to the November 15, 2006 deadline and the Court otherwise ordered it. However, and importantly, Defendant has not alleged any prejudice as a result of the post-November 15 notification. Rather, the sole basis for Defendant's objection is that the disclosure of a new statutory aggravator after November 15, 2006 is that "it is violative of the Court's scheduling order." While the State did identify the "substantial planning" aggravator past the Court's deadline, it did so almost five months before Defendant's trial date. Therefore, under the particular procedural facts of this case and in the absence of any claim of prejudice to Defendant, the Court will grant the State's request to rely on the "substantial planning" statutory aggravator, assuming the facts developed during the "guilt" phase of the trial warrant such reliance by the State.
Def. Resp., D.I. 61. Defendant also asked for an evidentiary hearing before empanelling a jury for this capital murder trial if the Court disallowed the use of the "prior violent felony" aggravating factor. However, the Court has decided, in an opinion issued simultaneously to this one, that the State may rely on that aggravating factor. State v. Carney, Del. Super., ID No. 0510023059A, Cooch, J. (April 24, 2007) (denying Defendant's motion to strike the death penalty).
IT IS SO ORDERED.