Opinion
ID No. 0511009920A.
Submitted: July 26, 2006.
Decided: October 31, 2006.
Upon Defendant's Motion for Judgment of Acquittal — DENIED
ORDER
Defendant was involved in a nighttime, house burglary that ended fatally for his accomplice and horribly for him. Not only was Defendant shot and seriously wounded, he wound up convicted of major felonies stemming from his accomplice's misguided attempt to shoot the burglary victim. Defendant again challenges the way the court charged the jury on accomplice liability.
As discussed below, the court told the jury to apply a subjective test to determine whether Defendant was an accomplice to the burglary, the underlying crime. The jury had to decide initially whether Defendant intended to participate in the underlying crime. If the jury decided Defendant was in on the burglary, then the jury was told to decide whether it was reasonably foreseeable to someone in Defendant's position that the other crimes that happened during the burglary, attempted murder, robbery and weapons offenses, might ensue.
Now, Defendant renews his contention that the jury should have been told to consider whether the other crimes were foreseeable by Defendant, rather than by a reasonable person in Defendant's position. The question presented, therefore, requires the court to again consider Chance v. State and Claudio v. State.
685 A.2d 351 (Del. 1996).
585 A.2d 1278 (Del. 1991).
I.
After a jury convicted him on June 22, 2006 for Attempted Murder First Degree, Robbery First Degree, Burglary First Degree, Conspiracy Second Degree, and four counts of Possession of a Firearm During Commission of a Felony, Defendant filed this timely motion on June 29, 2006. Defendant does not appear to challenge the burglary and conspiracy convictions. On July 27, 2006, the State filed a memorandum opposing Defendant's motion.At trial, Defendant all but admitted that he and an accomplice committed a nighttime, house burglary. The State's evidence overwhelmingly proved that in the middle of the night, Defendant and his co-conspirator broke into a home to take what they could find. The evidence also proved that during the burglary, Defendant went upstairs and entered the homeowner's bedroom. As Defendant opened the bedroom door, he awakened the homeowner and his dog. The homeowner and the dog were surprised, but the homeowner was ready. He grabbed a revolver and chased Defendant downstairs.
When Defendant got downstairs, he could have turned a corner and left the house. Whether he did it intentionally or because he was confused and terrified, Defendant stayed. Instead of leaving, he ran into the dining room and joined his accomplice, who was armed and ready to take a stand. When the homeowner reached the bottom of the stairs, he and the accomplice exchanged gunfire. The accomplice fired at least one round past the homeowner's head as the homeowner shot him and Defendant.
The homeowner's bullets mortally wounded the accomplice and seriously wounded Defendant. While there was room to argue about the precise sequence of events surrounding the gunfire, the direct and circumstantial evidence about everything else was compelling. Both the fact that Defendant entered the upstairs bedroom and the fact that the accomplice fired a shot past the homeowner's head were proved.
II.
As mentioned above, Defendant contends "that the Delaware Code requires an analysis of the individual state of mind of the [Defendant] vis-a-vis `reasonable foreseeability' in order to punish him appropriately." Defendant further contends that "[t]he Court's analysis ignores completely the personal mental state of [Defendant] in favor of a reasonable man approach[,] which ignores long-standing fundamental traditions of criminal jurisprudence." Defendant continues: "The linchpin of the Court's analysis is whether or not [Defendant] had reason to believe the house was occupied."
Defendant is correct that the jury had to consider Defendant's individual state of mind. Defendant, however, implies inaccurately that the jury was not instructed to do that. Defendant also misconceives the linchpin of the court's analysis. As presented below, the court made the jury first decide whether Defendant, subjectively, intended to commit a nighttime, house burglary with an accomplice. Then, the jury had to decide, objectively, whether a burglar in Defendant's position could reasonably foresee, under all the circumstances, that during the burglary an occupant might appear, a weapon might be produced, and someone, either the occupant or a participant in the crime, would be killed. In summary, the jury had to consider both Defendant's subjective intent to commit the underlying crime, and whether, objectively, the other crimes that occurred during the underlying crime would have been reasonably foreseeable to a reasonable person in Defendant's position.
III.
Over Defendant's objection, the court first charged the jury on accomplice liability:
The indictment accuses Defendant of committing several, specific crimes, and the indictment seems to accuse Defendant of committing all those crimes personally. Actually, as I will explain in greater detail as I review each of the indictment's counts, the State alleges that Defendant and Stephen Norwood conspired to burglarize Thomas Morgenstern's dwelling, and they committed that crime together. In other words, they were accomplices. The State further contends that while Defendant and Norwood were committing the agreed upon burglary, Stephen Norwood committed other crimes for which Defendant can be held criminally liable as Norwood's accomplice. Thus, before reviewing the indictment count-by-count, I will explain accomplice liability.
It is the law that when two or more people agree to commit a crime and it is reasonably foreseeable that another crime, or crimes, not specifically agreed on in advance might reasonably be committed while they are committing the crime they contemplated, and if the other crime, or crimes, aid or further the originally contemplated crime, then they are both responsible for committing the incidental or consequential crime or crimes.
Then, as part of the instructions for the attempted murder, robbery and each weapons offense, the court instructed the jury to consider the accomplice's intent. If the jury was satisfied that the accomplice committed those consequential crimes the jury had to decide whether the consequential crime "occurred during a burglary that [the accomplice] and Defendant had agreed they would commit." And, the jury also had to decide whether "it was reasonably foreseeable" that the consequential crimes "might reasonably happen during the agreed upon burglary."
In order to find Defendant guilty of Attempted Murder First Degree, . . . you must find that all the following elements have been established beyond a reasonable doubt:
1. Defendant's accomplice attempted to cause [the homeowner's] death. By this, I mean that Defendant's accomplice, by his own voluntary act, must have tried to bring a bout the death, which would not have happened but for Defendant's accomplice's act . . .;
AND
2. Defendant's ac complice's act constituted a substantial step in a course of conduct planned to culminate in his committing Murder First Degree . . .;
AND
3. Defendant's accomplice acted intentionally . . .;
AND
4. Defendant's accomplice's attempt to murder [the homeowner] occurred during a burglary that Defendant's accomplice and Defendant had agreed they would commit . . .;
AND
5. It was reasonably foreseeable that an attempted murder might reasonably happen during the agreed upon burglary;
AND
6. The attempted murder committed by Defendant's accomplice aided or furthered the a greed upon burglary. . . .
ROBBERY IN THE FIRST DEGREE — DISPLAY DEADLY WEAPON
In order to find Defendant guilty of Robbery in the First Degree, you must find that all the following elements have been established beyond a reasonable doubt:
1. Defendant's accomplice or Defendant committed theft. A person is guilty of "theft" when he takes, exercises control over or obtains property of another person intending to deprive him of it, or to appropriate it;
AND
2. While committing theft, Defendant's accomplice used or threatened the immediate use of force on another person, [the homeowner];
AND
3. Defendant's accomplice acted with the intent to compel [the homeowner] to give up property or to not resist Defendant's accomplice's or Defendant's taking [the homeowner's] property;
AND
4. Defendant's accomplice displayed what appeared to be a deadly weapon while committing the crime. A "deadly weapon" includes any handgun;
AND
5. The robbery occurred during a burglary that Defendant's accomplice and Defendant agreed they would commit:
AND
6. It was reasonably foreseeable that Robbery First Degree might reasonably occur during the agreed upon burglary.
POSSESSION OF A FIREARM DURING THE COMMISSION OF A FELONY
In order to find Defendant guilty of Possession of a Firearm During Commission of a Felony, therefore, you must find that all the following elements have been established beyond a reasonable doubt:
1. Defend ant committed a felony. In this count, the underlying felony charged is Attempted Murder First Degree;
AND
2. While committing the felony, Defendant's accomplice possessed a firearm. A firearm is any object capable of discharging a bullet through a gun barrel;
AND
3. Defendant acted knowingly.
Defendant acted "knowingly" if he was aware that he was committing a burglary with Defendant's accomplice and it was reasonably foreseeable that Defendant's accomplice possessed a firearm, or that Defendant's accomplice, Defendant or both of them would possess a firearm during the felony. In this Count the felony is Attempted Murder First Degree. . . .
The jury instructions on accomplice liability, at issue here, were controlled by Claudio v. State, not Chance v. State. As to Chance, and as presented above, there was no room to doubt that Defendant intended to commit a nighttime Burglary Second Degree and Conspiracy Second Degree. And, consistent with Chance, the jury was told to consider the accomplice's intent to commit the consequential crimes. Whether Defendant suspected the house was occupied and that his accomplice was armed or not, Defendant had to have known he and the accomplice were entering someone's dwelling in order to commit theft. And the jury was instructed to decide Defendant's subjective state of mind as to that.
Claudio, 585 A.2d at 1281-82.
Chance, 685 A.2d at 357-58.
For present purposes, the court rejects the State's plausible argument that Defendant remained in the house illegally after the shooting began, thus proving his direct culpability for Burglary First Degree and related weapons offenses. Therefore, the court assumes that, except for Burglary Second Degree and Conspiracy Second Degree, all the other crimes for which Defendant was indicted were the consequential crimes committed by the accomplice.
In summary, where accomplice liability is involved, under Chance, the jury must first consider what crime(s) Defendant actually intended to commit with the accomplice. As to consequential crimes committed by the accomplice during the intended offenses, Claudio applies. And the state of mind required by Claudio for consequential crimes is simply whether they were foreseeable to a reasonable person in Defendant's position. That is an objective, reasonable man standard.
Claudio, 585 A.2d at 1282-83 ("The defendants did not have to specifically intend that the result, a killing, should occur. As long as the result was a foreseeable consequence of the underlying felonious conduct their intent as accomplices includes the intent to facilitate the happening of this result. Thus, Delaware law requires the jury to unanimously find that a principal-accomplice relationship existed between the participants with respect to a particular charge. . . . However, the jury is not required thereafter to find that the defendants specifically intended the result of a consequential crime which occurs, e.g., in this case, murder and attempted murder.") (internal citations omitted).
In this case's context, Claudio only required that the jury consider whether a reasonable person could have foreseen that during a nighttime, house burglary, which Defendant decided to commit, a deadly confrontation with a homeowner would ensue. Perhaps, the homeowner might have died fighting for control over his own handgun. Or, if the house had been empty, the homeowner might have come home and surprised the burglars. Or, a neighbor could have called the police, thus spawning an armed and deadly confrontation. And so on. Or, it could have happened the way did: the house was dark; the homeowner was asleep; the occupant grabbed a handgun and started shooting; and Defendant's accomplice returned fire. Hence, the jury was charged properly, and it had substantial evidence to find Defendant guilty not only of the felony he intentionally committed, but also the other reasonably foreseeable crimes that his accomplice committed during the intended crime.
IV.
For the foregoing reasons, Defendant's renewed Motion for Judgment of Acquittal is DENIED.