Opinion
ID. No. 0211011651.
Submitted: May 21, 2003.
Decided: October 10, 2003.
Upon Consideration of Defendant's Application To Transfer The Case To Family Court DENIED.
Dennis Kelleher, Esq, Department of Justice, Dover, Delaware. Attorney for the State.
Laura Yeingst, Esq., Liguori, Morris Redding, Dover, Delaware. Attorney for the Defendant.
ORDER
Upon consideration of the defendant's application to transfer the case to Family Court, the State's opposition, and the record of the case, it appears that:
1. By indictment filed in February, 2003, the defendant was charged with one count of Rape in the First Degree, one count of Unlawful Imprisonment in the Second Degree, one count of Terroristic Threatening, and two counts of Indecent Exposure. The indictment charges that the alleged offenses occurred between August 31, 2002 and September 30, 2002. At the time, the defendant was 16 years of age. He is currently 17 years of age. The defendant has filed an application pursuant to 10 Del. C. § 1011(b) requesting that the case be transferred to Family Court.
2. The charges of Rape in the First Degree, Unlawful Imprisonment in the Second Degree, and Terroristic Threatening all arise out of an event that allegedly occurred at the end of August or in early September 2002. The two Indecent Exposure charges arise from separate incidents which occurred later. The case is brought in this Court pursuant to 10 Del. C. § 1010(a). The statute provides that a child shall be proceeded against as an adult where the acts alleged to have been committed constitute Rape in the First Degree.
3. At the hearing on the application, Officer Sandy Smetana of the City of Dover Police Juvenile Unit testified that on or about November 21, 2002, she was contacted by Robert Roswell, a security and discipline officer at Dover High School. He reported that a teacher had found a letter on the floor in a hallway. The teacher turned it over to Mr. Roswell. The letter appeared to have been written by Arlene Barone, a student, aged 15. It was addressed to "Jordan." At the hearing, a witness called by the defense, Jordan Whaley, testified that Ms. Barone gave the letter to him and that he accidentally dropped it in the hallway. In the letter Ms. Barone stated that she had been raped by another student, Shelton Smith.
4. After receiving the letter Mr. Roswell called Ms. Barone and another student, Kristin Martin, to his office. Ms. Martin was mentioned in the letter and was a friend of Ms. Barone. He immediately separated them and obtained written statements from each. In summary, Ms. Barone and Ms. Martin wrote in their statements that shortly after the beginning of the school year, they were with the defendant at the defendant's house. He sat down beside Ms. Barone and told Ms. Martin to move to a chair. He threw a blanket or sheet over Ms. Martin and told her not to move. She remained under the cover. He then returned to Ms. Barone. He pushed her shorts and underwear aside and engaged in sexual intercourse with her. She told him "no" several times but he persisted. At one point Ms. Martin heard Ms. Barone saying "help me," and a radio which was on was then turned up. Eventually the defendant told Ms. Martin she could come out from the blanket.
5. Officer Smetana also interviewed both girls, who confirmed to the officer the substance of the written statements they had given to Mr. Roswell. Officer Smetana also testified that they told her that when the defendant threw the blanket or sheet over Ms. Martin, he told her if she moved he would hit her.
6. Ms. Barone subsequently gave a videotaped statement at the Children's Advocacy Center. The videotaped statement, the two written statements obtained by Mr. Roswell, and the officer's interviews provide a generally consistent account of the alleged rape.
7. The unlawful imprisonment charge is based on the alleged restraint of Ms. Martin by covering her with a blanket and an alleged threat that the defendant would hurt her if she tried to leave. The terroristic threatening charge is based upon an allegation that the defendant threatened to commit a crime likely to result in death or serious physical injury to Ms. Martin. The Rape First Degree charge is based on the alleged sexual intercourse with Ms. Barone without her consent coupled with the allegation that the rape was facilitated by or occurred during the commission of the alleged terroristic threatening of Ms. Martin. The two counts of indecent exposure are based on separate incidents in which the defendant allegedly exposed himself to Ms. Martin and Sarah Allen.
8. Narenta Summers, a juvenile probation officer with Youth Rehabilitative Services, testified that the defendant had been adjudicated delinquent in Family Court for unlawful sexual contact on February 1, 1999 and rape in the third degree on August 9, 1999. As a result of the second adjudication, he was placed in a Level IV program consisting of an eighteen month residential, sex offenses treatment program. Ms. Summers began supervising him in April, 2002 upon his release from that program. The supervision included the Home Quest Program, which is designed to assist in the transition from the Level IV program to the offender's return to the community, and sex offense counseling at Psychotherapeutic Children's Services. The defendant was discharged from his sex offense counseling on October 11 — after the alleged commission of the offenses in this case but before his arrest. Ms. Summers testified that given the defendant's current age, there are no remaining services that Youth Rehabilitative Services could offer him. She also testified that Level IV youth programs are no longer available to the defendant because he is too old. A person is not eligible for a youth program if he will become an adult before the program can be completed. That, she testified, is the case with the defendant.
9. The defendant called 14 witnesses, 12 of whom were friends or acquaintances of the defendant or Ms. Barone. The defense indicates that these witnesses were called to provide evidence relating to the credibility and motive of the complaining witness, not to rebut directly the State's case. The other two were Mr. Roswell and Ms. Barone.
10. One of the defense witnesses was Kristin Martin, the alleged victim of the Unlawful Imprisonment in the Second Degree and the Terroristic Threatening. She testified that there was an occasion when she, Ms. Barone and the defendant were in the defendant's room. She was told by the defendant to cover her head with a blanket. After she did so, "they [the defendant and Ms. Barone] went about their business while I watched TV through the blanket." Although Ms. Martin did not watch Ms. Barone and the defendant while she was under the blanket, Ms. Barone told her that the two had sexual relations. In other words, Ms. Martin repudiated her statement of November 21 and denied that Ms. Barone had been forced to have sexual relations with the defendant. She also testified that a day or two after the incident with the blanket Ms. Bamne stated to her that she "thought he had raped her." She further testified that about a week after the incident, Ms. Barone verbally discussed with her a story of the alleged rape in the form which was eventually set forth in the girls' written statements, but asked her not to say anything about it. When asked to explain why she gave Mr. Roswell a written statement that wasn't true, she explained that "I wrote down what she [Ms. Barone] had told me" and "I am heavily influenced by my friends."
11. The testimony of the other witnesses who were friends or acquaintances of the defendant or Ms. Barone can be summarized as follows: that Ms. Barone willingly had sexual relations with the defendant after the alleged rape; that after the alleged rape she told people that she wanted to be his girlfriend; that the defendant broke off the relationship with Ms. Barone; and that in his case and the cases of other boyfriends who had broken off relationships with Ms. Barone, she responded in a vengeful, vindictive and harassing manner. Two witnesses, Amanda Allen and Hilton Smith, the defendant's brother, gave consistent testimony that Ms. Barone and the defendant engaged in sex in Hilton's house. Amanda Allen and Deandre Conyers also gave consistent testimony that Ms. Barone and the defendant engaged in a sexual episode on Halloween night that year. Another witness, Sean Bowers, testified that Ms. Barone admitted to having just had sex with the defendant in late fall. Ms. Barone, however, denied having sex with the defendant after the alleged rape.
One defense witness, Anthony Daniels, testified concerning an incident at the Dover Mall in which he was discussing the recent news of the defendant's arrest with a friend when a young female, who he did not know, overhead them and stated that Ms. Barone had told her, the young female, that the allegation was false. I have not given this evidence any weight because of its hearsay nature.
10. A rebuttable presumption exists that a child charged with Rape in the First Degree should be tried as an adult and the burden is on the defendant to rebut that presumption. In acting upon the defendant's application, the Court is required to consider the following factors and such other factors as are relevant: (1) the nature of the present offense and the extent and nature of the defendant's prior record; (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 best served by trial in the Family Court or in the Superior Court.
State v. Mayhall, 659 A.2d 790, 795 (Del.Super. 1995); State v. Wysznski, 1994 Del. Super. LEXIS 220 (Del.Super. 1994).
11. In considering the nature of the offense, the Court must determine whether the State has established a prima facie case. A prime facie case is established if there is a fair likelihood that the defendant will be convicted. The evidence, both prosecution and defense, must be viewed in its totality, and a prima facie case is not proven if the evidence does not establish a fair likelihood of conviction. If a prima facie case has not been established, the case should be transferred to the Family Court.
Marine v. State, Del. Supr., 607 A.2d 1185, 1211 (1992), cert. Dismissed, 505 U.S. 1247 (1992) (Marine I); Marine v. State, Del. Supr., 624 A.2d 1181, 1185 (1993) (Marine II).
Marine II at 1185; State v. Mayhall, 659 A.2d at 791.
Marine II at 1185; State v. Mayhall, 659 A.2d at 791.
12. Rape in the First Degree, as charged in this case, consists of the intentional engagement in sexual intercourse without the consent of the victim, which was facilitated by or occurred during the course of the commission of Terroristic Threatening. Terroristic Threatening consists of the making of a threat to commit a crime likely to result in death or serious physical injury. As mentioned above, the Terroristic Threatening count alleges that the defendant made a threat to commit a crime likely to result in death or serious physical injury to Kristin Martin.
13. Officer Smetana testified that the two girls told her that the defendant told Ms. Martin to stay under the blanket or he would hit her. A threat to "hit" someone is not necessarily a threat to commit a crime likely to result in death or serious physical injury. In addition, there does not appear to be any mention in the written statements of the two girls, the videotaped statement of Ms. Barone, or the hearing testimony of either Ms. Barone or Ms. Martin, of any threat that Ms. Martin would be hit if she did not stay under the blanket. I find that the evidence does not establish that the defendant made any threat to commit a crime likely to result in death or serious physical injury to Kristin Martin. Therefore, I find that the evidence does not establish a prima facie case of Rape in the First Degree.
15. The statute, 10 Del. C. § 1010(a), also provides, however, that a child shall be proceeded against as an adult if the child's acts constitute the crime of Rape in the Second Degree. In this case the State will be entitled to an instruction on the lesser-included offense of Rape in the Second Degree. Therefore, the Court must determine whether the evidence establishes a prima facie case of Rape in the Second Degree. As to this offense, it is clear that the credibility of witnesses will be a central issue. The decision as to whether a prima facie case has been established requires the Court to determine whether, or not, there is a fair likelihood that a jury will find that Ms. Barone's testimony is credible.
13. In considering whether a prima facie case for the offense of Rape in the Second Degree is established, it is worthy of note that Ms. Barone did not report the alleged rape to either school officials or the police before being called to Mr. Roswell's office on November 21. This is inconsistent with the defense argument that Ms. Barone asserted she was raped as a vindictive response to the defendant's allegedly breaking off their relationship. It is also noteworthy that the accounts of the alleged rape given by Ms. Barone have been consistent from the day she was first interviewed by Mr. Roswell.
14. When Kristin Martin wrote her statement in Mr. Roswell's office, she recorded the time of doing so as 8:23. The time at which the students report to school each morning is not part of the record, but I infer that 8:23 a.m. would be early in the school day. When Mr. Roswell summoned the girls to his office, he immediately separated them so they would not have an opportunity to speak to each other before being asked to give statements. I infer that they were not aware that they would be summoned to Mr. Roswell's office that morning and that they had no opportunity to consult with each other that day before giving their statements. Notwithstanding this lack of opportunity to consult with each other, their separately given written statements are consistent with each other. Ms. Martin's statement contains more detail than Ms. Barone's statement.
15. Ms. Martin's explanation of the untruthfulness of her November 21 statement is based upon the following odd sequence of events: Ms. Barone made up a rape story which she verbally went over with Ms. Martin in September, however, she asked Ms. Martin not to say anything about it; and two months later on November 21, despite the absence of any opportunity to consult that day, the girls separately gave consistent written statements describing an alleged rape.
16. Having considered the testimony of all the witnesses called by both the State and the defense, and the exhibits of both, and for the reasons set forth above, realizing that there may be additional defense evidence which was not presented at the hearing, I conclude that there is a fair likelihood that a jury will accept as true the testimony of Ms. Barone and the November 21 written statements of Ms. Barone and Ms. Martin. I further conclude, therefore, that there is a fair likelihood that a jury will conclude that a forcible rape occurred and convict the defendant at least of the lesser-included offense of Rape in the Second Degree.
17. The defendant's prior record, mentioned above, the nature of past treatment and rehabilitative efforts, and the nature of the defendant's response thereto, weigh against transferring the case to Family Court. This is his third sex offense and second rape charge. He successfully completed the treatment afforded him through Family Court, but there is little or no evidence beyond that of any response by the defendant to the treatment he was afforded.
18. The defendant is no longer amenable to any Family Court treatment or rehabilitative program. If the defendant is convicted, he will have demonstrated a clear tendency to commit serious sex offenses. Extended adult correctional supervision and treatment will be necessary to address the defendant's actions. I find that the interests of society and the defendant would be best served by a trial in this Court.
19. For the foregoing reasons, the defendant's application to have the case transferred to Family Court is denied.
IT IS SO ORDERED.