Opinion
I.D. No. 0404011263.
Submitted: October 25, 2006.
Decided: October 27, 2006.
Dennis Kelleher, Esquire, Department of Justice, Dover, Delaware; attorneys for the State of Delaware.
Ronald G. Poliquin, Esquire, Young, Malmberg Howard, P.A., Dover, Delaware; attorneys for the Defendant.
ORDER
Upon Defendant's Motion in Limine. Denied.
Defendant, Bruce G. Manlove, filed a Motion in Limine arguing that the State should be barred from introducing facts and arguments previously determined in Mr. Manlove's previous two trials. Mr. Manlove further seeks to bar his statement to the police, contending that there is not evidence of unilateral action. Mr. Manlove was initially charged with Robbery 1st, Conspiracy and Assault 3rd, and the Defendant was acquitted of the Conspiracy charge in the first trial. Mr. Manlove's second trial on Robbery 1st and Assault 3rd charges resulted in an acquittal on the Assault charge and a conviction on the Robbery 1st charge, after an inquiry by the jury as to the Defendant's status as an accessory. The Supreme Court remanded the conviction on the Robbery 1st charge and ordered a new trial. Mr. Manlove is now charged with Robbery in the Second Degree in his current third trial. The Defense argues that the victim can no longer testify as to the two men in the car, the Defendant punching her in the face, and her subsequent injury. Mr. Manlove claims that a jury has previously found the following two facts in his favor: 1 Defendant Manlove did not cause physical injury to the victim Jackie Slater; and 2 Defendant Manlove did not agree with another person to engage in conduct constituting the felony of Robbery. Consequently, the Defendant argues that collateral estoppel should apply to these facts, because they were previously determined in favor of Mr. Manlove. Secondly, Mr. Manlove argues that any subsequent conviction of Robbery is inconsistent with the Defendant's prior acquittal of Assault. The Defendant claims that the only evidence which will be proffered is that Mr. Manlove punched the girl and took the dog, and since the previous jury did not believe that he punched the victim, they could not have believed he snatched the puppy (so the jury must have convicted the Defendant as an accomplice). Consequently, there cannot be a Robbery charge against Mr. Manlove. Finally, Mr. Manlove argues that if the State is allowed to proceed, then the jury must be instructed that they cannot find the Defendant guilty of Robbery, if they find he was the accomplice. Specifically, the Defendant argues that the jury must be instructed that if they believe Mr. Manlove was the driver, then an acquittal for Robbery 2nd is appropriate.
Manlove v. State, 901 A.2d 1284 (Del.Super. 2006).
The State opposes the Defendant's Motion in Limine, with respect to the Defendant's statement, arguing that the Defendant's statement does not provide any evidence of an agreement between the Defendant and the other person in the car. Consequently, the evidence should not be barred due to the prior conspiracy acquittal. Further, the State argues that the Defendant is seeking to exclude all evidence alluding to the use of force, which is an essential element of the Robbery offense, and the witness should be permitted to testify completely. The prior Assault charge required a mental state of reckless or intentional, which is not a required element of Robbery, so a jury could have based its Assault acquittal on the Defendant lacking the requisite state of mind only. Consequently, the State should be able to proceed on the Robbery charge.
Discussion
A person is guilty of Robbery in the Second Degree when, in the course of committing a theft, the person uses or threatens the immediate use of force upon another person with intent to: (1) Prevent or overcome resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) Compel the owner of the property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft. Mr. Manlove claims that the jury previously decided that he did not agree with another person to engage in conduct constituting the Felony of Robbery, and, therefore, the State cannot proffer testimony concerning two men being in the car. The State's theory of the case is that two individuals drove up in a car, and the Defendant was seated in the passenger side seat. Further, the State will present evidence that Mr. Manlove asked the victim if her puppy was for sale before punching the victim in the face and running off with the puppy. The anticipated testimony is that Mr. Manlove road in the car with another individual (whether driving or not) and then allegedly punched the victim and stole the puppy. This does not provide evidence of an agreement between the two individuals. The anticipated testimony does not evidence an agreement between Mr. Manlove and the other person in the car to commit Robbery. Therefore, the testimony is not barred as a result of the prior Conspiracy acquittal. Further, Mr. Manlove claims that a jury previously determined he did not cause physical injury to the victim, and, therefore, argues that the victim should be collaterally estopped from testifying about the Defendant punching her. Also, the Defendant claims that the Robbery charge is inconsistent with the Defendant's prior acquittal for Assault. Mr. Manlove claims that the Defendant was previously found to not have caused physical injury to the victim due to the Defendant's Assault acquittal. An element of Robbery 2nd that must be proven is: the person uses or threatens the immediate use of force upon another person. Assault and Robbery 2nd have different elements that must be proven in order to sustain a conviction on the two charges. Assault requires an intentional or reckless mental state that is not required in Robbery 2nd. Further, Robbery in the Second Degree can be committed by a person using only the threat of force. A subsequent Robbery 2nd charge may be brought, after an acquittal for Assault, because they are two distinct offenses. The State and Defense should be aware of this since the Supreme Court remanded Mr. Manlove's case for a new trial, after acknowledging that the Defendant was acquitted on the Assault 3rd charge. Further, we are unable to determine exactly why the jury acquitted Mr. Manlove on the Assault charge. We cannot discount the fact that the jury may have found the requisite mental state missing, which is not required in Robbery 2nd, when they decided not to convict Mr. Manlove on the Assault charge. All we can conclude for sure is that the jury in the second trial found that one or more elements of Assault 3rd were not present.
The Defendant argues that the same facts testified to in the previous trial, which led to an acquittal on the Assault charge, should not be admissible in the current trial, in order to prove an element of Robbery 2nd. The Supreme Court remanded Mr. Manlove's case for a new trial, evidencing their belief that the Robbery charge can stand in the face of the Assault acquittal. The testimony that the Defendant seeks to exclude goes to the essential facts required to prove the elements of Robbery 2nd, and the testimony is the direct recollection of the victim. If the victim were not allowed to testify to her recollections concerning the alleged incident, then the Robbery 2nd charge would have to be dropped. Being that the Supreme Court expressly remanded this case for a new trial, the victim must be able to testify to the alleged incident.
Mr. Manlove's final contention is that the jury must be instructed that if they believe the Defendant was the driver of the vehicle rather than the individual whom took the puppy, then an acquittal is appropriate. The jury will only be instructed on the elements of Robbery 2nd, and they must determine whether those elements have been established after weighing the opposing testimony proffered by the State and the Defendant. The Defendant's statement may not be excluded for the reasons raised by the Defendant, except that the recording is not admissible for the reasons cited by this Court during the second trial.
Based on the foregoing, the Defendant's Motion in Limine is denied. IT IS SO ORDERED.