Opinion
I.D. #0004001925, Cr. A. No. IN00-04-1132 and IN00-06-1133
Date Submitted: November 19, 2001
Date Decided: February 14, 2002
Daniel R. Miller, Esq., Deputy Attorney General, Department of Justice, 820 N. French Street, Wilmington, DE 19801. Attorney for the State of Delaware.
Joseph A. Hurley, Esq., 1215 King Street, Wilmington, DE 19801. Attorney for Defendant.
ORDER
On this 14th day of February 2002, upon consideration of evidence submitted at trial, and legal memorandum filed by both sides, it appears to the Court that:
(1) A bench trial was held on November 1, 2001 on Count I Burglary First Degree and Count IV Conspiracy Second Degree of the indictment. Judgment was deferred so that both sides could submit legal memoranda on the key issue of the sufficiency of the indictment as to both counts, as well as whether the State met its burden beyond a reasonable doubt.
(2) On April 2, 2000, the victim, Melanie Potter held a party at her apartment on Cleveland A venue. At some point during the night, a group of unwelcome party-goers arrived at the party. Ms. Potter recalls someone telling the unwelcome group to leave, but is unclear as to whom made the request. Upon request, the unwelcome group disembarked. During their retreat, bottles began being thrown from and between the unwelcome group and the invited guests on Ms. Potter's deck. After the bottles were thrown and words were exchanged, the unwelcome group left in the cars in which they arrived.
Shortly thereafter, three men from the previous unwelcome group returned to the party on foot. One of them had his hand behind his back. Someone yelled that this person had a gun, and all the invited guests ran into Ms. Potter's apartment. As the three unwelcome men continued to approach Ms. Potter's apartment, the three threw bottles at her apartment, breaking her neighbor's window and striking Ms. Potter's door. Inside Ms. Potter's apartment, all the invited guests ran into Ms. Potter's bedroom and barricaded the door with furniture. After retrieving the portable phone from her bedroom, Ms. Potter remained in her living room and dialed the police. The three unwelcome men proceeded to kick Ms. Potter's front door. Ms. Potter testified that out of her front window she observed Defendant and two black males kicking the front door and yelling. She testified with certainty that she saw three different feet hit her door.
Once the door was broken down, Defendant was the first to enter Ms. Potter's apartment. He ran straight towards her bedroom and starting kicking in the bedroom door. While Defendant was kicking, he picked up a teapot and hit the bedroom door with it. A black male, who had a gun, told Ms. Potter to hang up the phone. When she put the phone down, the male put the gun away. Ms. Potter testified that she did not observe any communication between Defendant and the other two males. In fact, she testified that the third male just stood at the door. At some point, the three men found out the cops were en route and departed Ms. Potter's apartment. Ms. Potter commented that Defendant said nothing to her, nor to the two males he was with as they departed. Ms. Potter was able to identify Defendant from the tattoo on his neck.
The court finds it inconsequential that Ms. Potter only recalls seeing Steele tattooed on Defendant's neck and not his entire name Bobby Steele. Ms. Potter also testified that she had met Defendant at a prior party and recognized him.
(3) Defendant testified that he was invited to the party that Saturday night, the previous night when someone told him about it. Defendant stated that he was inside the apartment before the fight started. Defendant testified that when he was leaving the party, a bottle was thrown at him and he returned to find out who hit him with a bottle. He does not believe that the door was locked when he returned to the party, because people were walking in and out. He admits that he went to the bedroom door to find out who hit him with the bottle because someone told him the person was in there.
(4) Defendant was indicted on the following charges: Burglary First Degree (IN 00-04-1132); Possession of a Firearm during Commission of a Felony (IN 00-06-1131); Terroristic Threatening (IN 00-06-1132); Conspiracy Second Degree (IN 00-06-1133); and Criminal Mischief (IN 00-04-1133). The counts of Possession of a Firearm during the Commission of a Felony and Terroristic Threatening were dismissed and Defendant pled guilty to Criminal Mischief prior to trial. Thus, the only remaining counts before the Court are Burglary First Degree and Conspiracy Second Degree. Before trial, Defendant moved to dismiss both indictments as insufficient and defective.
(5) The purpose of an indictment is dual: (1) to put the accused on notice of the crime and allow him to prepare his defense; and (2) to effectively eliminate double jeopardy by precluding subsequent prosecution for the same offense. An indictment is sufficient if it contains a plain statement of the elements or essential facts of the crime.
Malloy v. State, 462 A.2d 1088, 1092 (Del. 1983).
Id.; Superior Court Criminal Rule 7.
(6) Delaware cases hold that an indictment for burglary must be quashed if there is a failure to specify the particular crime intended to be committed. Here, the indictment states "with intent to commit a crime therein." This language is insufficient as to Burglary since it fails to delineate with specificity all the essential elements of the crime intended to be committed. Thus, the burglary count is DISMISSED.
State v. Deedon, 189 A.2d 660, 663 (Del. 1963); State v. Minnick, 168 A.2d 93 (Del. 1960).
Id.
(7) Due to the burglary count being dismissed, the Court is not able to make a determination as to whether the State could have proved a lesser included offense.
IT IS SO ORDERED.
(8) The Conspiracy count of the indictment is sufficient. All essential elements of a crime must be incorporated into the indictment count. Here, all essential elements were put forth in the indictment count. This Court follows the reasoning of Deedon, "although the specific crime which the defendant is alleged to have intended to commit must be set out in the indictment, it need not be set forth with the same particularity as in a prosecution for that crime itself." In that case, the Delaware Supreme Court held that in an indictment for burglary, the specific crime intended to be committed must be set forth; however, all the details of that crime need not be established. The same reasoning should apply here. Thus, the count of conspiracy is sufficient in the indictment.
Malloy, 462 A.2d at 1092.
Deedon, 189 A.2d at 663.
IT IS SO ORDERED.
(9) The Court finds that the State did not prove beyond a reasonable doubt that Defendant committed Conspiracy Second Degree. A conspiracy is the combination of two or more persons to commit a crime. No formal agreement between the parties is needed, but the minds of the parties must meet so as to bring about a deliberate agreement to do the acts and commit the charged offense. The basic requirement of conspiracy is unity of design and purpose, pursuing the same object or common purpose.
Bender v. State, 253 A.2d 686, 688 (Del. 1969); State v. Winsett, 205 A.2d 510, 520 (Del. 1964).
Winsett, 205 A.2d at 520.
Bender, 253 A.2d 688.
The State has failed to meet this burden. No evidence was presented that the three men kicking on the door knew each other. Nor was there any evidence presented that these three men knew what each other was doing or in any way had a common purpose in kicking at the door. The State has failed to allege what the three men would do together once inside the door. Thus, the State has failed to meet their burden and Defendant is found not guilty of Conspiracy Second Degree.
Sentencing as to the charge of Criminal Mischief (Cr. A. No. IN 00-04-1133) will be held on April 26, 2002 at 9:30 a.m.
IT IS SO ORDERED.