Opinion
ID. No. 9905016384. No. IK99-07-0244-0246.
January 6, 2000.
Upon Consideration of Defendant's Motion for Transfer to the Family Court
Stephen R. Welch, Jr., Esq. Attorney for the State.
John H. McDonald, Esq. Attorney for Defendant.
COMMISSIONER'S REPORT AND RECOMMENDATION
The defendant Eric V. Curry, Jr. ("Curry") was indicted by the Grand Jury on one count of Robbery in the First Degree, 11 Del. C. § 832, one count of Possession of a Firearm During the Commission of a Felony ("PFDCF"), 11 Del. C. § 1447A; and one count of Wearing a Disguise During the Commission of a Felony, 11 Del. C. § 1239. The charges stem from a strong arm robbery on April 3, 1999 during which Curry allegedly robbed a Dunkin Donuts shop in Dover, Delaware.
The charges were brought in Superior Court pursuant to 11 Del. C. § 1447A(e). Curry was born on August 25, 1981 and was seventeen at the time of the offense charged, he is now eighteen years old. Curry has moved to have all the charges, with the exception of the PFDCF charge, transferred to the Family Court pursuant to 10 Del. C. § 1011. 10 Del. C. § 1011 allows the Court to conduct a Reverse Amenability Hearing to determine whether the defendant is more amenable to the process of this Court or the Family Court. The State opposes the transfer. In State v. Anderson, the Delaware Supreme Court held that juvenile defendants between the ages of 15 and 18 charged in Superior Court with Possession of a Firearm During the Commission of a Felony, pursuant to 11 Del. C. § 1447A(e), are not entitled to have that charge transferred to the Family Court under the reverse amenability process. Consequently, under the Anderson holding the only charges which Curry may have examined for transfer to the Family Court under the reverse amenability process are the remaining charges. The motion was referred to the Court Commissioner for Findings of Fact and Recommendations pursuant to 10 Del. C. § 512 and Superior Court Criminal Rule 62. A hearing was held and this is my Report and Recommendation.
11 Del. C. § 1447A(e) states that every person charged with possession of a deadly weapon during the commission of a felony "over the age of 15 years shall be tried as an adult, notwithstanding any contrary provisions or statutes governing the Family Court or any other State law", 11 Del. C. § 1447A(e).
10 Del. C. § 1010 and 1011 were formerly 10 Del. C. § 938 and 939 respectively.
Del. Supr., 679 A.2d 379 697 A.2d 379 (1997).
Id. at 389.
In determining whether it would be in the interest of justice to transfer a defendant's case to the Family Court, this Court must consider, among other things, the following:
1. The nature of the present offenses and the extent and nature of the defendant's prior record if any;
2. The nature of past treatment and rehabilitative efforts and the nature of the defendant's response thereto, if any; and
3. Whether the interests of society and the defendant would be better served by a trial in the Family Court or in the Superior Court.
In addition to the foregoing, the Court must also consider the following additional factors in light of the Supreme Court's ruling in Anderson. The Supreme Court stated concerning the decision to retain jurisdiction that:
A construction that views [ 11 Del. C. § 1447A(e)] as permissive permits the court to apply the usual standards which govern joinder and severance of offenses. See Superior Court Criminal Rules 8 and 14. In most cases, we envision that the Superior Court most likely will decide to retain jurisdiction over companion charges simply because the standards of joinder may so suggest. In the reverse amenability process decision as to other offenses, the Superior Court is free, of course, to take into consideration as a factor, perhaps a significant factor, the fact that the felony firearm offense must be decided in the Superior Court and that the juvenile will not be spared adult court proceedings in any event, regardless of the merit of the companion charges and the prospect for rehabilitation.
Anderson, 679 [697] A.2d at 389.
Therefore, the following additional matters must also be examined:
4. Whether the companion charges should remain in Superior Court based on the standards which govern joinder and severance of offenses; and
5. The effect of the inevitable adult court proceedings and possible incarceration, regardless of the merit of the companion charges and the prospect for rehabilitation.
NATURE OF THE PRESENT OFFENSES AND THE EXTENT AND NATURE OF THE DEFENDANT'S PRIOR RECORD
A. Nature of the Present OffensesIn this case, the Court must consider the nature of several offenses. First is the offense which confers jurisdiction on this Court, Possession of a Firearm During the Commission of a Felony. Second, the Court must consider the nature of the underlying felonies, in this case Robbery in the First Degree and Wearing a Disguise During the Commission of a Felony. The crimes charged are alleged to have occurred in the early morning hours of April 3, 1999. The nature of the underlying felonies, in particular the First Degree Robbery is extremely serious. This charge is likewise completely intertwined with the firearm charge and weapons charges.
As part of the consideration which the Court must give to the nature of the crime, the Court is required to determine whether or not the State has established a prima facia case. A prima facia case is established if there is a fair likelihood that the defendant will be convicted. In deciding whether the State can establish a fair likelihood of conviction the Court must determine whether, after reviewing the totality of the evidence presented, it appears, knowing that the defense has yet to be presented, that the likelihood of conviction is real if the defense does not sufficiently rebut the State's evidence. A real probability must exist that a reasonable jury could convict on the totality of the evidence assuming that the evidence introduced at the reverse amenability hearing stands un-rebutted by the defendant at trial.
Marine v. State, Del. Supr., 607 A.2d 1185, 1211 (1992), cert. dismissed, 505 U.S. 1247, 113 S.Ct. 28, 120 L.Ed.2d 952 (1992) ( Marine I); Marine v. State, Del. Supr., 624 A.2d 1181, 1185 (1993) ( Marine II); State v. Mayhall, Del. Super., 659 A.2d 790, 791-92 (1995); State v. Walker, Del. Super., IK95-04-0023, Terry, J. (June 12, 1995) (Order at 2).
State v. Walker, supra at 2.
State v. Walker, supra at 2; State v. Mayhall, 659 A.2d at 792.
Id.
In doing this, the Court must keep in mind that the defendant has not yet had the opportunity to confront witnesses against him or to put on any defense. The Court's role is not to decide in this proceeding what the facts are, or to opine as to the guilt or innocence of the defendant. The Court must look at the totality of the limited evidence and decide if it establishes a fair likelihood of conviction, if not rebutted by the defendant.
Walker, supra at 2.
Marine I, 607 A.2d at 1211; Marine II, 629 A.2d at 1188; Mayhall, 659 A.2d at 792; Walker, supra at 2.
At the hearing, the State called Detective Lester Boney, a 13 year veteran of the Dover Police Department. Detective Boney explained that on April 3, 1999, he was called to investigate a robbery which had occurred just after midnight at the Dunkin Donut shop on Forrest Avenue in Dover. Apparently, the victim, a store clerk, had called the Police at approximately 12:17 a.m. to report the crime. The victim, who does not speak English well explained, through the store owner, acting as an interpreter, that he had been mopping the floor and saw a car enter the drive thru lane. When the victim turned around he was confronted by the first robber holding a gun. This first robber grabbed the victim and forced the victim to open the store registers. The first robber was described as being a black male approximately six feet tall, wearing dark clothing, gloves and a ski mask and holding a handgun. A second robber was described as being also a black male between five feet, seven inches and five feet, eight inches tall, also wearing dark clothes, gloves and a ski mask. The second robber removed money from one register and the first robber removed cash from two other registers. The total amount of cash taken from the three registers was two hundred and eighty dollars. After grabbing the money, the two robbers fled the scene. The victim was unable to give the police any further description of the two robbers. There was no physical evidence located at the scene.
The State also called Detective Timothy Stump of the Dover Police Department. Detective Stump became involved in the Dunkin Donut robbery investigation following the May 20, 1999 arrest of William Barnes ("Barnes") and Tyson Thompson ("Thompson") at Dover High School for weapons offenses and for a robbery at the Cheswold Diner. During an interview, Thompson admitted his involvement in two separate robberies at the Forest Avenue Dunkin Donut shop. These robberies had occurred on January 15th and 22d 1999, respectively. Thompson told Detective Stump that he had heard Gilbert Curry ("Gilbert") "bragging" about how he had also robbed the Dunkin Donuts on April 3, 1999. Gilbert described his robbery as being "the most recent one." Gilbert is Curry's cousin.
Gilbert had by this time already been arrested by the State police for yet another robbery, which had occurred at a Pizza King. During an interview with State Police Officer Shawn Nowrey, Gilbert stated that he along with his brother Jamaal Curry and Curry had robbed the Dunkin Donuts on April 3, 1999. According to Gilbert, he and Curry went into the Dunkin Donuts and committed the robbery while Jamaal waited outside as a look out. Gilbert claimed he forced the victim to open the registers using a pellet gun.
During his police interview, Jamaal stated that he, his brother Gilbert, and cousin Curry had been walking around the Woodmill Development when Curry had an idea to rob the Dunkin Donuts. Curry and Gilbert then "geared-up" to go into the Dunkin Donuts. Jamaal stated Gilbert had a gun when he went into the store. Jamaal's statement was similar to his brother's in that he also stated his role was as a look out.
After carefully considering the testimony presented at the hearing, the exhibits, and the record in this case, I find the State has met its burden of establishing a fair likelihood of conviction for all the offenses charged in the indictment. While it is true that the State does not have an air-tight case, they have presented sufficient evidence which if un-rebutted at trial would result in a fair likelihood of conviction after a trial.
B. Curry's Prior Record
Curry has a limited criminal history. Curry's record consists of an adjudication of delinquency for one count of Robbery in the Second Degree on May 19, 1999 approximately a week before his arrest on these charges. This charge involved a robbery committed on April 7, 1999 four days after the commission of the offense alleged in this case. In the April 7, 1999 robbery, Curry was charged with Robbery in the First Degree and Wearing a Disguise. The robbery occurred at the Dover Ramada and Curry was apprehended that day with a pellet gun and bandana. Due to his limited prior record, Curry was offered a plea bargain to a single count of Robbery in the Second Degree. The only thing that can be gleaned from Curry's record is that during a span of less than a week in April 1999 he made several atypical foray's into criminal activity.
Curry's alleged involvement in the Dunkin Donuts robbery was unknown at the time of his arrest and sentencing on the Ramada robbery.
NATURE OF PAST REHABILITATION EFFORTS AND CURRYS RESPONSE
Curry's probation officer, Pamela Unruh, testified concerning Curry's past treatment and rehabilitative efforts. Following his adjudication as delinquent on the Robbery Second charge in May 1999, Curry was assigned to officer Unruh. Unfortunately, Curry was arrested on the instant charges shortly after his adjudication in Family Court and was incarcerated on $20,000 secured bond. Consequently, Curry never had any formalized probationary supervision as he was incarcerated following his arrest on the instant charges. It is clear that Curry has not yet had the benefit of any rehabilitative efforts and it is impossible therefore to assess his potential response to any such treatment.
Following the hearing, I reduced Curry's bond and he is currently out on a lower secured bond, however, at the time of the hearing there was no record concerning his receptibility to rehabilitation.
WHETHER THE COMPANION CHARGES SHOULD REMAIN IN SUPERIOR COURT BASED ON THE STANDARDS WHICH GOVERN JOINDER AND SEVERANCE OF OFFENSES
Curry is charged with Possession of a Deadly Weapon During the Commission of a Felony and several underlying felonies including Robbery in the First Degree and Wearing a Disguise. The Possession of a Firearm During the Commission of a Felony charge must remain in Superior Court. Under Superior Court Criminal Rule 8, offenses that are of "the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan" can be indicted and tried together. The purpose of the rule is to promote judicial economy and efficiency. It is difficult to imagine charges more tied together than those with which Curry is charged. Clearly a trial on the weapons offense must necessarily include evidence on the underlying felonies, as that is an integral element of the offense. Equally, a trial on the Robbery and Disguise charges must include evidence of the possession of the firearm as an element of Robbery in the First Degree. These charges are so intertwined that it would defy logic to separate them under all but the most extraordinary circumstances. This factor weighs heavily against transfer of the companion charges to the Family Court.
Super. Ct. Crim. R. 8(a).
Sexton v. State, Del. Supr., 397 A.2d 540 (1979), overruled on other grounds, Hughes v. State, Del. Supr., 437 A.2d 559 (1981).
In the event Curry is found guilty of the firearm charge, he will be facing a minimum mandatory sentence at Level V of three years. In this case, the evidence against Curry primarily consists of the statement of his two cousins concerning Curry's culpability. The State's case while not "strong" is sufficient that a reasonable jury could convict Curry on the firearm charge should the evidence presented at the hearing stand and remain uncontradicted by the defense. If convicted, Curry will be incarcerated within the adult system for three years on that charge alone.
11 Del. C. § 1447A.
WHETHER THE INTEREST OF SOCIETY AND CURRY WOULD BE BEST SERVED BY TRIAL IN THE FAMILY COURT OR IN THE SUPERIOR COURT
Curry is accused of committing an armed robbery and possessing a firearm during the robbery, among other charges. Curry is currently eighteen and he faces three years minimum mandatory at Level V if convicted in the Superior Court on the firearm charge. Curry has not had the benefit of any rehabilitative programs. Curry presented no evidence as to what programs he might qualify for if transferred to the Family Court. Curry's mother testified on his behalf. She explained that Curry was a good child who had no prior run ins with the law. It is apparent that Curry has supportive parents and that he could become a productive member of society. However, the facts of this case and the law of the State lead to my recommendation that the charges should be retained in the Adult System. Our general assembly has declared that youths who possess weapons during the commission of a felony must stand trial as adults. In this case, Curry is alleged to have joined his cousins and robbed a restaurant and forced the victim at gun point to open the registers. The potential for tragedy was high in this crime.
After carefully considering all the evidence, including Curry's current age, the factors weigh in favor of retaining jurisdiction of all Curry's charges in the Superior Court. In the first place, the charges are all so inextricably intertwined that to sever them would almost defy logic, absent an extraordinary circumstance not present here. Secondly, the State has met its burden as to the strength of its case. Third, the fact that Curry will face adult incarceration if convicted in Superior Court and consequently, will be less likely to benefit from any rehabilitative programs offered by DYRS weighs very heavily in favor of retaining jurisdiction in the Superior Court. Therefore, I find that if Curry is convicted of the offenses charged, neither his interest nor the interest of society would be served by confinement and the rehabilitative efforts of the Family Court. Rather, the interest of society, judicial economy, and Curry require that the Court find Curry non-amenable to the Family Court and DENY his motion for transfer of the proceeding to Family Court.