Opinion
ID. No. 9902005463. Nos. IK99-04-0596, IK99-04-0597, IK99-05-0075, IK99-05-0076, IK99-05-0077.
December 20, 1999.
Upon Consideration of Defendant's Motion for Transfer to the Family Court
Dennis Kelleher, Esq. Attorney for the State of Delaware.
Sandra W. Dean, Esq. Attorney for Defendant.
COMMISSIONER'S REPORT AND RECOMMENDATION
The defendant, Harry W. Knight ("Knight") was indicted by the Grand Jury in May, 1999 on one count of Vehicular Homicide in the Second Degree, 11 Del. C. § 630 (a)(1); one count Vehicular Assault in the Second Degree, 11 Del. C. § 628; one count of Disregarding a Stop Sign, 21 Del. C. § 4164 (a); one count of having an Unsafe Motor Vehicle, 21 Del. C. § 4355 (a); and one count of Speeding, 21 Del. C. § 4168 (b). The charges stem from a fatal automobile accident on the evening of September 11, 1998, in which Knight is alleged to have run a stop sign and collided with a bus. As a result of the accident, one of Knight's passengers was killed.
The charges were brought in Superior Court pursuant to 11 Del. C. § 630 (c). Knight was born on April 24, 1982 and was sixteen years old at the time of the fatal accident. Knight has moved to have all the charges 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.
11 Del. C. § 630 (c) provides that any person who has reached the age of 16 shall be treated as an adult for the purposes of trial and sentencing.
10 Del. C. § 1010 and 1011 were formerly 10 Del. C. § 938 and 939 respectively.
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 on the motion was held on September 13, 1999.
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 interest of society and the defendant would be better served by a trial in the Family Court or in the Superior Court.
10 Del. C. § 1011.
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 the offense which confers jurisdiction on this Court, one count of Vehicular Homicide in the Second Degree. The crime charged is alleged to have occurred on September 11, 1998. The nature of the offense is extremely serious given the death of Knight's passenger; as a result of the accident.
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., 602 A.2d 1185, [ 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 at 1188; Mayhall, 659 A.2d at 792; Walker, supra at 2.
At the hearing the State called Trooper George A. Heberling of the Delaware State Police Fatal Accident Team. Trooper Heberling has eleven and a half years experience investigating automobile crashes and has spent the past five years on the Fatal Accident or "Fair Team." He testified that he had attended several eighty hour training courses on traffic accident reconstruction and investigation. He estimated that he has investigated as head officer over eighty fatal automobile accidents during his tenure.
Trooper Heberling testified that he was called to investigate a fatal crash which had occurred on September 11, 1998 at approximately 10:50 p.m. Trooper Heberling arrived at the crash scene, the intersection of Bryn Zion Road and County Route 300 in Kent County, around midnight and observed downed power lines, debris over a wide area and a bus at rest in a cemetery. He also saw a Ford Escort which had sustained extensive damage. The investigation revealed gouges and tire marks. The gouge mark indicated the point of impact. There were tire "scrubs" going from the point of impact to the resting point of the Escort. Trooper Heberling went back to the accident scene during day light hours and made an extensive investigation using electronic surveying equipment which allowed him to produce a diagram of the accident.
The conclusion of Trooper Heberling's investigation was that a Maroon Ford Escort was driving northbound on Bryn Zion Road and failed to stop at a stop sign at the intersection of Bryn Zion Road and County Route 300. At the time the Escort went into the intersection, a bus carrying migrant workers was heading west along Route 300 also known as Wheatley Pond Road. The Escort collided with the bus just below the drivers side with such force that the Escort went partially under the bus. The Escort then rotated counter-clockwise along with the bus, eventually separating from the bus. After the vehicles separated, the bus left the road, sheared a telephone pole and went into a cemetery where it knocked over numerous tombstones. Eventually, the bus stopped two hundred and eighty seven feet from the point of impact. As for the Escort, it left tire scrubs from the point of impact one hundred and eighty eight feet to where it stopped. Trooper Heberling stated that a vehicle can leave tire scrubs whether the tires are braking or not.
The investigation also revealed that Knight was the driver of the Escort. John Martin was the front seat passenger and he suffered blunt force trauma, a fractured femur and clavicle and was still undergoing treatment for his head injuries a year after the accident. Richard Reeves had been sitting in the back seat of the Escort and was not wearing a seat belt. Reeves was killed as a result of his head striking the top of the car upon impact with the bus.
Several witnesses were interviewed by the police. Bobbie Jo Wilson had been driving along Route 300 behind the bus and estimated that the bus was traveling less than 55 miles per hour. The bus driver was also interviewed and told the police that he had been driving around 45 to 50 miles per hour. The bus driver stated he did not see the Escort until a moment before the collision. Neither the bus driver, or Knight, tested positive for either alcohol or drugs and they showed no signs of impairment.
Also interviewed where the drivers and passengers of two cars who had been following Knight's car along Bryn Zion Road. Matthew Naylor explained to the police that he and his friends had been sitting outside in front of one of their homes at Massey's Mill Pond when they saw a Ford Escort drive by several times. The final time the Escort came by, a number of rocks flew up from the road and struck Naylor and his friends. They decided to follow the Escort in order to get its license plate number. Naylor followed the Escort along Massey Mill Pond Road then made a left hand turn, and a right hand turn, eventually onto Bryn Zion Road. Naylor estimated that he had to drive between 85 and 90 miles per hour to try and catch the Escort which he also estimated to be going 85 to 90 miles per hour. Naylor stated that immediately before the collision, the Escort was moving at a speed well over 60 miles per hour. The speed limit along Bryn Zion Road is 50 miles per hour. Naylor saw the Escort's brake light illuminate "briefly" immediately prior to the impact with the bus. Naylor approached the Escort to help the occupants and heard the driver say "sorry about the rocks."
Several of Naylor's friends, Franklin and Travis Johnson and Brian Soroko, followed Naylor in a second car. When he was initially interviewed, Franklin Johnson told the police that they had simply been driving around and just happened on the accident. During a subsequent interview, Franklin stated they had in fact been following the Escort in order to get its license plate number. Franklin stated that his brother Travis Johnson had been driving and he was the front passenger. Brian Soroko was in the back seat. Despite being behind Naylor's vehicle, Franklin stated he saw the brake lights come on in the Escort, briefly as if the brakes had been "tapped." Franklin was not sure if the Escort ever stopped. Brian Soroko gave an account similar to Naylor's and Franklin's second statement. Soroko also saw brake lights illuminate "briefly" on the Escort.
The investigation also included an examination of the Escort at the tow yard. This exam revealed that the brake shoes and pads were extremely worn, to the degree that rivets were contacting the brake drum. The wheel cylinder also leaked brake fluid. Trooper Heberling stated these two problems would increase the stopping distance of the Escort. The vehicle examination also showed that three of the tires had different sizes which would cause handling difficulties. An examination of the bus revealed the presence of an effect known as "Hot Shock." Trooper Heberling explained that due to the filaments in light that if the light is on at impact "Hot Shock" will occur. Therefore, Trooper Heberling postulated that the bus had its head lights on at the time of the collision. Due to the large size disparity between the bus and the Escort, Trooper Heberling was unable to determine the speed of the Escort. Trooper Heberling did note that the Escort, given its small size, had to be moving rather fast to move the bus as it did. Trooper Heberling also noted that since there were no pre impact skid marks that the collision could not have been avoided, even if the Escort's brakes had been perfect.
Knight's counsel has argued that based upon the evidence presented at the hearing, the State has failed to meet its burden of establishing a prima facia case for the charge of Vehicular Homicide in the Second Degree. 11 Del. C. § 630 (a) reads as follows:
A person is guilty of vehicular homicide in the second degree when:
(1) While in the course of driving or operating a motor vehicle, the person's criminally negligent driving or operation of said vehicle causes the death of another person.11 Del. C. § 231 (d) defines criminal negligence as follows:
"Criminal negligence". — A person acts with criminal negligence with respect to an element of an offense when the person fails to perceive a risk that the element exists or will result from the conduct. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
It is well settled in Delaware that a juvenile operating a motor vehicle will be held to the same standard of care as an adult. Criminal negligence has been defined by this court as:
Wagner v. Shanks, Del. Supr., 194 A.2d 701, 708 (1963); State v. Drake R. McN., Del. Super., K85-01-0064AR, 1986 WL 2836, Poppiti, J. (March 3, 1986); see also, State v. Christine D., Del. Fam. Ct., JN 88-0822, 1989 WL 5502, Horgan, J. (Jan. 25, 1989).
A person acts with criminal negligence with respect to death when he fails to perceive or recognize that there is a risk that death will result from his conduct. Moreover, the risk must be of such a nature and degree that a defendant's failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
The words "reasonable person" denote a person exercising those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interest and the interest of others. This standard enables you to determine whether the defendant's conduct is such as to subject him to criminal responsibility for harm caused to express your judgment in terms of the conduct of your reasonable fellow human beings. The conduct of this fictitious person, the reasonable person, is always up to standards and the conduct of the reasonable person must, therefore, be your guide.
State v. Drake R. McN., supra at 8.
With this standard in mind, I consider the facts presented at the hearing realizing the defense has not had the opportunity to put evidence on. The evidence presented by the State suggest that Knight was traveling at speeds of 85 to 90 miles per hour along dark country roads and that immediately prior to the collision, he was traveling over 60 miles per hour in a 50 mile per hour speed zone. The evidence also suggested that he failed to stop at the stop sign. Although he probably "tapped" his brakes momentarily, he collided with a much larger vehicle, the bus, with such force that the bus ended up 287' from the point of impact. Furthermore, there was no evidence of a panic stop prior to the collision. Based upon these facts, I find that the State has met its burden of establishing a fair likelihood of conviction for all the offenses charged. I conclude that a reasonable jury could determine that Knight was guilty of each offense.
See, State v. Drake R. McN., Supra; State v. Donato, Del. Super., IN89-06-0858, Babiarz, J. (Aug. 15, 1990); Colon v. State, Del. Supr., No. 374, 1993, Berger, J. (Oct. 27, 1994); State v. Vannicola, Del. Super., IN90-07-0076, Barron, J. (July 11, 1991).
B. Knight's Prior Record
Knight's only prior record was from one charge of "Throwing/Depositing Glass" for which he was fined.
NATURE OF PRIOR REHABILITATIVE EFFORTS AND DEFENDANT'S RESPONSE THERETO
Due to Knight's lack of a prior serious criminal record, he has to date, not been exposed to any rehabilitative efforts.
WHETHER THE INTEREST OF SOCIETY AND THE DEFENDANT WOULD BEST BE SERVED BY TRIAL IN THE FAMILY COURT OR IN THE SUPERIOR COURT
At the hearing, the defense called Linda Zervas, a Psych-Forensics Evaluator, employed by the Office of the Public Defender. Ms. Zervas has three separate Masters degrees in various clinical psychological fields. The State stipulated that for the purposes of the hearing, she was an expert in the field. Ms. Zervas interviewed Knight for an hour and a half, two and a half months prior to the hearing. During the interview, she obtained background and family information concerning Knight. Knight's parents do not live together, he resides with his mother as a result of a less than friendly custody dispute. Knight dropped out of school in the 10th grade, following the accident. Ms. Zervas noted that Knight displays anxiety and depression as a result of the accident. She reviewed his school records which showed no history of discipline problems. Ms. Zervas preliminary diagnosis was that Knight has an Adjustment Disorder, with mixed anxiety and depressed mood with a possibility of post traumatic stress syndrome.
Knight was also evaluated by a physicist, Dr. King, who recommended Knight undergo mental health treatment for his adjustment problems. Dr. King noted no neurological problems.
Ms. Zervas' conclusion was that Knight would be amenable to the Family Court, although she failed to give her definition of amenability. She opined that there was no evidence that Knight was non-amenable and that he needs mental health counseling as a result of the mental trauma from the accident. He is not the type of offender who would be immune to rehabilitation.
It is my hope that if this matter is transferred to the Family Court, that he take full advantage of the programs offered and go on to have a productive life having learned the lessons taught him at the institutions available. Therefore, after a careful review of all the facts and circumstances, including Knight's age and that he has never been exposed to any rehabilitative efforts, I recommend that the Court find it in the best interest of both Knight and society to have the matter transferred to the Family Court for adjudication.