Opinion
I.D. No. 0404011263, Cr. A. No. IK04-05-0239 thru 0241.
Submitted: August 12, 2005.
Decided: October 4, 2005.
Upon Defendant's Motion for Judgment of Acquittal or, in the Alternative, Motion for a New Trial. Denied.
Dennis Kelleher, Esquire of the Department of Justice, Dover, Delaware; attorneys for the State.
Ronald G. Poliquin, Esquire of Young Malmberg Howard, P.A., Dover, Delaware; attorneys for the Defendant.
ORDER
Defendant, Bruce G. Manlove, filed a Motion for Judgment of Acquittal or, in the alternative, a Motion for a New Trial. Defendant's contention is that his conviction can only be based on his unilateral acts because he was acquitted of the conspiracy charge. He argues that because the jury found him guilty of robbery in the first degree, but not guilty as to assault, his conviction was based on accomplice liability. For the reasons set forth below, the Defendant's motions must be denied.
During deliberations, the jury sent this Court a note asking, "1. Robbery 1 — can it be an accessory to crime." In response, this Court read 11 Del. C. § 275(a), which states, "[a] person indicted for committing an offense may be convicted as an accomplice to another person guilty of committing the offense." This Court never mentioned 11 Del. C. § 271, which details accomplice liability, because it was not the theory advanced by the State.
"When ruling upon a motion for acquittal, the trial judge must consider the evidence and all legitimately drawn inferences from the point of view most favorable to the state." The applicable standard of review is whether a rational trier of fact could have found that guilt was established. A motion for acquittal is only granted when the State failed to provide evidence sufficient to sustain a guilty verdict.
Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982).
State v. Owens, 1993 Del. Super. LEXIS 97.
Vouras, 452 A.2d at 1169.
In the case sub judice, the State provided ample evidence to support a finding of guilt; namely, the victim, Ms. Slater, testified that Defendant was the man who had punched her in the face and stolen her puppy. Additionally, she had previously identified Defendant in a photo line-up. Considering this evidence in the light most favorable to the State, a rational trier of fact could easily have found Defendant guilty. Consequently, Defendant's Motion for Judgment of Acquittal is denied.
The standard of review for a motion for a new trial is plain error, which requires the error complained of to be "so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process." Additionally, if counsel intends to assert an error in a motion for a new trial, counsel must raise the question of law affecting his client's rights during the course of the trial.
State v. Grant, 2004 Del. Super. LEXIS 342.
State v. Halko, 193 A.2d 817 (Del.Super. 1963).
Here, it is arguable whether or not Defendant even adequately objected to the Court reading 11 Del. C. § 275 to the jurors in response to their question. The only two pertinent statements Defendant's counsel made were: (1) I still think there's some question since there was an acquittal on the conspiracy in this case. I don't think we should quite rush to judgment as to giving them the answer on that; and (2) Your Honor, Mr. Manlove has not been indicted as an accomplice in this case. The charge in the indictment is rather clear, in addition to the fact that he's been acquitted of the conspiracy charge; but there's been no indictment in — regarding to be an accomplice in this action. Moreover, Defendant's counsel made no statement after this Court stated, "It seems to me that the — it may be a fair response at this point to say that, in response to the note that the Court simply read, Subsection A of Title 11, 275, period."
Assuming, arguendo, that Defendant did adequately object to this Court's reading of Section 275 to the jury, the standard that must be met still remains plain error. Defendant did not make any arguments which demonstrate that his rights were prejudiced such that the integrity of the judicial process was jeopardized in any way.
Defendant contends that the State never argued a theory of accomplice liability and that this Court did not read the definition of accomplice liability to the jury. Both of these assertions are correct and establish that there was no error regarding the answer given to the jury.
Defendant also erroneously concludes that because the jury convicted him of robbery but not assault, that they must have convicted him on the theory of accomplice liability. This assumption fails for a number of reasons. First, accomplice liability was never mentioned to the jury. They were simply read an accurate statement of Delaware law — that someone indicted as a principal can be convicted as an accomplice. Second, there are several alternative explanations as to why the jury convicted Defendant only on the robbery charge.
Moreover, a defendant can be convicted of robbery, but acquitted of assault. In Bialach v. State, the Delaware Supreme Court heard an appeal by the defendant based on his conviction for robbery in the first degree. In the Superior Court, the defendant was indicted on one count of robbery in the first degree and one count of assault in the second degree. Those indictments stemmed from an incident where the defendant went behind the counter at a Radio Shack where the cash register was located and then immediately left the store. An employee who observed this through a closed-circuit security camera alerted the store manager, who pursued the defendant into the parking lot, where he was sitting behind the wheel of a vehicle. The manager attempted to apprehend the defendant, but when he was unsuccessful, he proceeded to the rear of the car and began yelling the license plate number to another employee. While the manager was behind the vehicle, the defendant backed out of the parking space, striking and injuring the manager's leg. Based on these facts, a jury convicted the defendant only of robbery in the first degree. Further, in Hackett v. State, the Delaware Supreme Court held that assault is not a lesser included offense of robbery. In support of that holding, the Court reasoned:
744 A.2d 983 (Del. 2000).
Id. at 984.
Id.
Id.
Id.
Id.
Id.
569 A.2d 79 (Del. 1990).
Clearly, under 11 Del.C. § 206, neither of these offenses is a lesser included offense of the other. First, the Blockburger analysis . . . shows that assault and robbery require proof of different facts. Second, this is not a case involving crimes that by definition are included in another, such as attempted robbery and robbery, or theft and robbery. Finally, although robbery and assault can be distinguished on the basis of the extent of injury suffered, the crimes involve fundamentally different elements of proof. A robber intends to take or deprive another of his property, whereas one who assaults another intends to cause or recklessly causes serious physical injury to another.
Id. at 80-81.
Therefore, it is possible for a jury to convict a defendant of robbery, but acquit him of the assault charges, contrary to Defendant's assertion.
Defendant argues, correctly, that any conviction based on an agreement where the defendant was already acquitted on conspiracy charges violates double jeopardy. In State v. Banther, the defendant was convicted in Superior Court of first-degree murder and possession of a deadly weapon during the commission of a felony, but was acquitted of first-degree conspiracy. The defendant appealed, the decision was reversed and a retrial was held. During the retrial, the defendant argued that his acquittal on the conspiracy charge precluded the State from asserting that he had assisted his co-defendant in planning the murder, because both the accomplice liability statute and conspiracy charge had an agreement element. However, the trial court allowed the State to make such an argument and instructed the jury that they could convict the defendant as an accomplice if they found he had aided his co-defendant. On appeal, the Supreme Court reversed finding an error as a matter of law because the State failed to enforce the collateral estoppel provisions of 11 Del. C. § 208(2).
2005 Del. LEXIS 333, at *5.
Id. at *6.
Id. at *6-*7.
Id. at *8-*10.
Here, however, the State argued that Defendant was the principal, not an accomplice. In fact, the State clearly contended that Defendant was the one who punched Ms. Slater and stole her puppy. The State did not even mention accomplice liability. Furthermore, the driver of the car was only mentioned during the questioning of Detective Goode, to whom Defendant alleged that the driver, Mr. Pearsall, assaulted and robbed Ms. Slater. As a result, this case is clearly distinguishable from Banther.
For the foregoing reasons, Defendant's Motion for Judgment of Acquittal, or in the alternative, Motion for a New Trial is denied.
IT IS SO ORDERED.