Opinion
No. 293, 2003.
Submitted: October 27, 2003.
Decided: December 30, 2003.
Court Below: Superior Court of the State of Delaware, in and for Sussex County, Cr. ID. No. 0211004458.
Before VEASEY, Chief Justice, HOLLAND and STEELE, Justices.
ORDER
This 30th day of December 2003, upon consideration of the parties' briefs, it appears to this Court that:
1. William Waltman and Chase Fehrenbach arranged to meet at a Rehoboth Beach parking lot on November 3, 2002 to exchange money and drugs. Waltman and Jonathon Veasey, a man who had accompanied Waltman, assaulted Fehrenbach and robbed him of the money with which he intended to purchase the drugs. During the encounter Veasey commandeered Fehrenbach's car and used it to run over Fehrenbach's foot. On trial for numerous felonies, Waltman raised the affirmative defense of duress, claiming that he was simply Veasey's "middleman" and that Veasey pointed a gun at him and forced him to rob Fehrenbach. Additionally, Waltman claimed that he only participated in the confrontation because he was afraid that Veasey would shoot Fehrenbach.
2. Just before Waltman's final case review on March 21, 2003, he hired private counsel to replace his Public Defender and requested a continuance. The request was denied at the final case review and again, by a different judge, before jury selection on the day of his trial, March 24, 2003. The next day a jury convicted Waltman of Robbery in the First Degree, Possession of a Deadly Weapon during the Commission of a Felony, Carjacking in the First Degree, Assault in the Second Degree, and Conspiracy in the Second Degree. This is Waltman's direct appeal.
The trial judge stated: "I am not going to grant it. You are not going to judge shop. Judge Bradley has already ruled on the continuance request . . . I am not going to revisit the issue that was specifically address [sic] by another Judge. That may not be the law of the case because it is procedural, but it has been addressed and I am not going to revisit what has been ruled upon two days ago. So the case is for trial."
3. Waltman claims that the trial judge erred by: (1) allowing into evidence allegations that Waltman sold drugs on other occasions, (2) failing to examine the totality of the circumstances of the case when denying the request for the continuance, and (3) failing to instruct the jury properly on the affirmative defense of duress.
4. The trial judge properly admitted evidence of Waltman's earlier drug dealings under D.R.E. 404(b). Where the defense has made a proper objection to the admission of evidence under 404 (b), this Court reviews a trial judge's decision for abuse of discretion. Waltman contends that this evidence was irrelevant, unfairly prejudicial and used only to attack his character. He suggests that evidence of his earlier drug dealings with Fehrenbach should have been excluded under 404(b), and that the trial judge incorrectly applied Getz v. State. The State responds that the trial judge properly admitted the evidence because the issue was not whether Waltman had been engaged in selling drugs on November 3rd but whether it was Waltman who robbed and assaulted Fehrenbach.
Nelson v. State, 2001 WL 458264 (Del.Supr.).
538 A.2d 726 (Del. 1988).
5. The trial judge engaged in a careful analysis of the 404(b) purposes for which the evidence was offered and conducted a thorough Getz analysis. The trial judge stated reasons for admitting the evidence of Waltman and Fehrenbach's two earlier meetings. The evidence tended to explain the purpose of their meeting on the date in question in that it explained Waltman's motive, his knowledge of Fehrenbach, and Waltman's identity. Additionally, the trial judge determined that the evidence was inextricably intertwined with relevant evidence and therefore admissible under Pope v. State. Finally, the trial judge correctly articulated and applied the D.R.E. 403 balancing test and gave a curative instruction to the jury. Accordingly, the trial judge did not abuse his discretion by admitting the evidence.
The trial judge stated: "I am satisfied for motive and identification as to what is going on. It is introduced for a purpose recognized by 404(b), and it is a materially or ultimate fact to dispute the evidence that is being proffered by way of sworn testimony. It is not remote in time. It is simultaeneous . . ."
632 A.2d 73 (Del. 1993); in the matter sub judice, the trial judge stated that the evidence was, "necessary background information," that there would be a "vacuum without and it would cause confusion."
6. The trial judge did not abuse his discretion by denying Waltman's Motion for a Continuance on the eve of trial. We review a denial of a request for a continuance for abuse of discretion. Stevenson v. State generally teaches that trial judges must consider all relevant circumstances when deciding continuance requests. Waltman insists that the circumstances of this case clearly warranted a continuance, and that the trial judge erred by considering only the court's schedule. Waltman cites the following facts to support this contention: (1) this was his first request for a continuance; (2) there was no evidence of dilatory motives; (3) the charges were serious and carried a six year minimum mandatory sentence; (4) the facts of the case and his defense of duress were complicated; and, (5) the State was not prejudiced, and in fact benefited by his hiring private counsel, because it freed State resources. Waltman suggests that the judge denied his request for a continuance only to keep the calendar moving. In short, Waltman argues that he, a nineteen-year-old man with no criminal record, was forced to go to a trial that could result in mandatory prison time with a court appointed Public Defender instead of private counsel. Waltman insists that this error warrants a reversal of the convictions sub judice.
Stevenson v. State, 709 A.2d 619, 630-631 (Del. 1998).
Id.
7. However, "The denial of a continuance for change of counsel on the eve of trial is not an abuse of discretion when: (1) there had been no previous complaint about counsel; (2) the defendant had prior opportunity to obtain substitute counsel; and 3) obtaining counsel was uncertain and appeared to be a dilatory tactic." Waltman had over four months to obtain private counsel and the record contains no proffered reason for the delay. Contrary to Waltman's assertions, neither the facts of the case nor his affirmative defense of duress were "complicated." Waltman's unsuccessful defense was less likely the result of deprivation of private counsel and more likely the result of his own admissions. Waltman admitted his involvement in the robbery and assault, and his intent to rob Fehrenbach because he needed the money to pay his bills. Further, he admitted that Veasey was his "strongman or protector" during drug deals. Finally, Waltman voiced no complaint about the Public Defender at either his final case review or the morning of trial, and the record demonstrates that he was ably represented both before and during trial. Under these circumstances, the trial judge did not abuse his discretion by denying the request for a continuance on the eve of trial.
Id. at 631 (quoting Riley v. State, 496 A.2d 997, 1018 (Del. 1985)).
See, e.g., Stevenson, 709 A.2d at 631; Riley, 496 A.2d at 1018; Austin v. State, 2001 WL 898621, at **2 (Del.Supr.); Taylor v. State, 1991 WL 57087, at **2 (Del.Supr.).
8. Waltman contends for the first time on appeal that the trial judge committed error because he was entitled to an additional jury instruction on the affirmative defense of duress specifically using the language of 11 Del. C. § 303(c). Waltman agreed at trial that duress was an affirmative defense and, therefore, understood that the trial court would prepare a duress instruction. Waltman, however, neither objected to the given instruction, nor proposed an alternative instruction using the language of section 303(c). We review the trial judge's actions for plain error in the interest of justice. Plain error is one that is "so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."
This section instructs, "[i]f some credible evidence supporting a defense is presented, the defendant is entitled to a jury instruction that the jury must acquit the defendant if they find that the evidence raises a reasonable doubt as to the defendant's guilt."
Wainwright v. State, 504 A.2d 1096 (Del. 1986).
Id. at 1100.
9. The trial judge instructed the jury in part as follows:
The defendant in this case has asserted the affirmative defense of duress to the charges alleged in the information. The defendant has the burden of proving this affirmative defense by the [a] preponderance of the evidence . . . If, after considering all of the evidence you find that this affirmative defense has been established by [a] preponderance of the evidence then you must find the defendant not guilty. Even if the defendant has not met the burden of proof for this particular defense, you must find the defendant not guilty if you find that the State has not met its burden of proving its case beyond a reasonable doubt.
Waltman argues that the instruction improperly places the burden of proof of the defense on him and insists that the trial judge should have given an additional jury instruction using the specific language from Section 303(c). However, Waltman confuses the jury instruction applicable to a simple defense with the proper instruction for an affirmative defense. Further, his reading of the plain language of Section 303(c) is unpersuasive and contrary to settled law. A defendant's burden of proof is less for a simple defense than for an affirmative defense. Duress is categorized as an affirmative defense that must be proved by the defendant by a preponderance of the evidence. This Court has held that shifting the burden of proof of an affirmative defense to the defendant is not an improper burden shift from the constitutional protection of the State's obligation to prove a defendant's guilt beyond a reasonable doubt. Here, the trial judge's instruction made it clear to the jury that the State retained the ultimate responsibility of proving Waltman's guilt beyond a reasonable doubt even if Waltman failed to carry his burden of proving the affirmative defense of duress by a preponderance of the evidence. Accordingly, the trial judge's actions did not constitute plain error.
Foraker v. State, 394 A.2d 208, 214 (Del. 1978) (citing 11 Del. C. § 304).
Id.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and hereby is AFFIRMED.