State of Delaware v. Cabrera.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE v. JOSE CABRERA Defendant ) ) ) ) ) ) ) CRIMINAL ACTION NUMBERS IN-03-08-1214 IN-03-08-1215 IN-03-08-1216 IN-03-08-2292 ID NO. 0308003826 Submitted: August 10, 2005 Decided: October 19, 2005 MEMORANDUM OPINION Upon Motion of the Defendant to Withdraw Guilty Pleas - GRANTED Appearances: Mark B. Chernev, Esquire, Deputy Attorney General, Wilmington, Delaware, attorney for State of Delaware Michael C. Heyden, Esquire, Wilmington, Delaware, attorney for defendant HERLIHY, Judge Defendant Jose Cabrer a has m oved to w ithdraw his guilty p leas. He pled guilty on February 12, 2004 to four counts of unlawful sexual conduct second degree. Several weeks later, and before sentencin g, he m oved to withdra w his ple as. The p rimary b asis is that he claims he was sleepwalking at the time of the incidents for which he was charged and wo uld, there fore, lack the requis ite menta l state to perf orm an intentiona l act. There are no known or reported Delaware cases involving sleepwalking, or somnamb ulism as it is technically known, as a defense. If properly presented to and accepted by a jury it could rebut the elements of knowingly and/or inte ntionally. The discussion, therefore, in this opinion of this potential defense is one of first impression. The Court is not saying Cabrera has established this defense but is only holding he has shown a fair and just reason to enable him to withdraw his pleas. His m otion to withdraw h is guilty pleas is, therefore, GRANTED. Facts Cabrera, age 53, is a legal resident of the United States and a citizen of the Dominican Repub lic. The p olice arres ted him on August 7, 2003. He was later indicted on fourteen charges of unlawful sexual conduct second degree.1 The complaining witness is under 16. C ounsel represen ted Cabrera sta rting no later than O ctober 3, 2003 . 1 11 Del.C. § 768 states: A person is guilty of unlawful sexual contact in the second degree when the person intentionally has sexual contact with another person who is less than 16 years of age or causes the victim to have sexual contact with the person or a third person. 1 Trial was set for February 12, 2004. On that date, instead of proceeding to trial Cabrera accepted the State s plea offer. Under the agreement, he agreed to pled gu ilty to four counts of u nlawful sexu al contact second degree. He signed two TIS Guilty Plea Agreement forms. One form was in Spanish, the other in English. A presentence investigatio n was to be com pleted prio r to the imposition of a sentence. Cabrera speaks Spanish, his first language, and broken English. A translator was present at the time Cabrera comp leted the plea agreement forms and assisted during the colloquy with the Court. The presentence investigation interview was conducted on February 17, 2004. Again, an interpr eter was present. During the interview Cabrera indicated that he was sick and was receiving treatment for the condition. He described the condition as being in a sleep state during the incidents and thus was not aware of what he was doing at the time of the alleged crimes. Prior to the February 12 hearing and the February 17 interview, Cabrera says he told counsel twice about the possible defense. However, counsel did not discuss that possible d efense with C abrera. Cabrera filed his motion to withdraw his guilty plea on March 11, 2004. The Court appointed substitute counsel to represent Cabrera on April 4, 2004. After several office conferences and delays, new counsel delivered a report on the possible sleepwalking, 2 somnamb ulism 2 , defense on June 3, 2005. The report is from Dr. Pedro M. Ferreira, a psychologist. A pertinent portion of the report states: The possibility of some form of somnamb ulism (parasomnia) as a central phenomenon in this case appears plausible, especially if your client has had a prior history of said condition. Somnam bulism occurs in the latter stages of sleep, but not in the Rapid Eye Movement (REM sleep), there are copious exam ple in the clinical literature concerning this phenomenon. It is also more prevalen t in males than in females. The time framework presented by your client, about three hours or so, is in line with clinically known parameters for this type of phenomenon. *** In summ ary, the n arratives p resented to me, p articularly b y your c lient, lend sufficient credibility to the defense strategy being considered. Specific cultural elements need to be noted also, along with the perspective of young Ms. Cabrera. Furthermore, I could not find any evidence of intentional efforts on the pa rt of Mr. Cabrer a to abus e his dau ghter or a ny other female who was at the family home on the date in question. There is not history, no sense of instability in the marriage, no psycholog ical crisis (chronic or emerging) at the time noted with the exception of the admonitions concerning Ms. C abrera s p eer grou p, as desc ribed to m e by you r client. 3 Cabrera s Claims Three bases exist to Cabrer a s conten tion that the Court sh ould per mit him to withdraw his guilty plea. First, he contends that he did no t know ingly plea d guilty as he did not intend to commit the offenses. Next, he asserts that he did not knowingly plead guilty as he was not aware that somnambulism is a possible defense to the charges entered 2 Other terms used to describe the sleepwalking state are somnambulism and parasomnia. The term automatism includes sleepwalking as well as other states of unconsciousness. Black s Law Dictionary 134 (6th ed. 1990). 3 Dr. Ferreira 6/3/05 report, p. 3. 3 against him. Lastly, Cabrera claims that he received ineffective assistance of counsel as counsel wa s aware of his so mnam bulism but did not pursue that d efense. Standard Superior Court C riminal Rule 32(d) governs a motion to withdraw a guilty plea prior to sentencing, rather than the more stringent Rule 61 standard.4 Under R ule 32(d), the Court may permit the withdrawal of a guilty plea prior to sentencing when the defendant shows any fair and just reason for the granting of the motion. Cabrera bears the burden to articulate to the Court that there is fair and just reason for the withdrawal of the guilty plea.5 Superior Court Criminal Rule 11 governs the Court s discretion to permit the withdrawal of the guilty plea.6 Discussion The question before the Court is whether Cabrera has made a showing of any fair and just reason to permit the withdrawal of Cabrera s plea. In answering that question, the Court will consider and address five factors: 1) Was there a procedural defect in taking the plea; 2) Did [C abrera] k nowin gly and v oluntarily c onsent to the plea a greem ent; 4 Superior Court Criminal Rule 32(d) states: If a motion for withdrawal of a plea of guilty or nolo contendere is made before imposition or suspension of sentence or disposition without entry of a judge of conviction, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only by Motion under Rule 61. 5 Brown v. State, 250 A.2d 503, 504 (Del. 1969). 6 Wells v. State, 396 A.2d 161, 162 (Del. 1978). 4 3) Does [Cabrera] presently have a basis to assert legal innocence; 4) Did [Cabrera] have adequate legal counsel throughout the proceedings; and 5) Does granting the motion prejudice the State or unduly inconvenience the Court. 7 The factors pro vide a us eful fram ework to determ ine whe ther a fair an d just reaso n is shown, but these factors are not to be balanced.8 Each factor will be considered separately. A. Procedural Defect Upon careful review of the record, the Court is assured that the Superior Court Criminal Rule 11 procedural requirements were met. No defects appear in the record as it presently exists. The Court discussed , in open c ourt, the plea a nd its ram ifications w ith Cabrera as require d by Ru le 11(c). It as certained the volun tariness of th e plea and the accuracy of the guilty plea. The record also included a completed and executed plea agreement and TIS Guilty Plea form indicating a waiver of rights, both in Spanish and English. After reviewing the Truth-in-Sentencing guilty plea form which Ca brera signed, the Court h as determ ined that th e guilty ple a form c orrectly sets forth the potential maximum statutory penalty the crime charged (8 years for four counts). As a result, the Court finds no procedural defects surrounding the plea. 7 State v. Friend, 1994 WL 234120 (Del.Super.), at *2. 8 Patterson v. State, 684 A.2d 1234, 1238 (Del. 1996). 5 B. Knowing and Voluntary Consent Cabrera claims that his entry of the guilty plea was not know ing as he is not guilty and did not know of a possible defense. On his Truth-in-Sentencing form , Cabrera indicated that he freely and voluntarily decided to plead guilty. He also indicated that he understood that, by signing the form, he waived his right to be pres umed innocen t and to present evidence in his defense. He so ackn owledged during his colloq uy. Cabrera signed copies of the form in English and in Spanish. He is otherwise bound by these statem ents and answers absent clear and convincing evidence to the contrary.9 As the ensuing Discussion indicates, Cabrera has met that standard in this instance. Legal Innocence There are two separate but interrelated sub-issues to this issue of legal innocence since it revolves around the defense now being argued. The first is whether somnamb ulism is a valid defense under Delaware law. The other is whether, in this case, has Cabrera, throu gh Dr. Fer reira s report, met the threshold requirement for either legal innocen ce to ena ble the ple a to be w ithdraw n or for ultim ately adm issibility at trial? Whether somnambulism is a valid defense under Delaware law appears to be one of first impression.10 The State concedes as a genera l matter th at it is. But it argues in this 9 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 10 Only one Delaware decision mentions a potential sleepwalking defense, Motion for Postconviction Relief, 1997 WL 716906 (Del.Super.). However the case is not on point as the motion was procedurally barred by the time bar of Superior Court Rule 61(I)(1) and the merits of (continued...) 6 case that Dr. Ferreira s opinion as he expressed it does not meet either threshold, allowing Cabrera to withdraw his plea or for admissibility at trial. Primarily, the State s argument is that Dr. Ferreira only uses the word possibility of somnambulism but does not say within reason able medica l certainty. But the State s concession recognizing the defense of somnam bulism in large part causes it to present an incorrect argument about the second sub-issue. To understand why, it is necessary to overlook the State s concession and to independently demonstrate that somnamb ulism can be recognized as a defense to m ost criminal acts. The crime of unlawful sexu al contact is defined as follows: A person is guilty of u nlawfu l sexual co ntact in the second degree when the person intentionally has sexual contact with another person who is less than 16 years of age or causes the victim to have sexual contact with the person or a third person.11 Intentionally is defined by statute to mean: (1) If the elem ent involv es the nature of the person s conduc t or a result thereof, it is the person s conscious object to engage in conduct of that nature or to cause that result; and (2) If the element involves the attendant circumstances, the person is aware of the existence of s uch circumstances or believes or hopes that they exist. 12 10 (...continued) the potential defense were not discussed. There are no other known Delaware decisions mentioning, much less discussing, sleepwalking, automatism, somnambulism or parasomnia. 11 11 Del.C. § 768. 12 11 Del.C. § 231 7 Some states hav e analog ized auto matism to insanity while other states have classified sleepwalking as an unconscious defense.13 Sleepwalking has been defined as behavior performed in a state of mental un consciousne ss. 14 A Texas court has reviewed somnamb ulism, citing other authorities as follows: Not only is the power of locomotion enjoyed, as the etymology of the term signifies, but the voluntary muscle s are capable of executing motions of the most delicate kind. Thus, the som namb ulist will w alk secur ely on the edge of a precipic e, saddle his horse , and ride off at a gallo p; walk on stilts over a swollen torrent; practice airs on a musical instrument, in short, he may read, write, run, * *149 leap, clim b, and swim, as well as, and sometimes even better than when fully awake. Ray s Med. Jr. § 495; Wharton & Stille, Taylor, and *45 Brown announce similar views; Wharton & Stille on Med . Jur. § 149 et se.; Taylor s Med. Jr., p. 176; Med. Jur. of Insanity, § 328 et. Seq. Under the general head of mental unsoundness connected with sleep, Wharton & Stille group somnolentia, somnambulism, and nightmare. They define somnolentia to be the lapping over of a profound sleep into the doma in of apparent wakefulness, and say that it produces a state of involuntary intoxication, which for the time destroys moral agency. Med. Jur. § 151. The writings of med ical and m edico-leg al authors contain accoun ts of many well-authenticated cases in which homicides have been committed while the perpetrator was either asleep or just being aroused from sleep, and in commenting on these cases, Brown, in his Medical Jurisprudence of Insanity, uses this language (section 338): Indeed, there are very many cases in which the confused thoughts of awakening consciousness have led to disastrous consequences. And this is to be accounted by the fact that there is a state between sleeping and waking when the thoughts of the dreamer have as much reality as the facts he is assured of by his senses. Fain v. Commonwealth, 78 Ky., pages 186-187, 39 Am. Rep. 213.15 13 Minnesota v. Cox, 2004 WL 2796190 (Minn.App.), at 3. 14 BLACK S LAW DICTIONARY 134 (6th ed. 1990). 15 Bradley v. State, 277 S.W. 147, 148-149 (Ct.Crim.App.Tex. 1929). 8 As such, it does not rise to the level of mental illness or mental d efect. 16 Under Delaw are law, therefore, sleepwalking would not be treated as insanity. The Criminal Code recogn izes a number of defenses. Some are designated as affirmative defenses. 17 Others are designated as defenses. 18 But under Delaware law a defense to a crim inal charge, however, does not have to be confined to those listed by statute.19 To put it another way, even thoug h somnam bulism (parasomnia) is not listed as a statutory defense it can, nevertheless, be a defense. Under the Criminal Code, a defendant may produce as a defense whatever tends to negate the existence of any element of the offense.20 In this case, the somnambulism defense goes to the essential elemen t of intentionally in the offense of unlawful sexual contact second degree. Based on this analysis, th e State s co ncession , while w elcome , is unnec essary or redund ant. But where the State s concession led it astray is that somnambulism is a defense. That is a crucial a nd dispo sitive distinc tion to the second threshold issue. As noted, the 16 11 Del.C. § 401. 17 See, e.g. 11 Del.C. § 401- mental illness; § 431 - duress; and 11 Del.C. 636 - extreme emotional distress. 18 See, e.g. 11 Del.C. § 423 - involuntary intoxication; 11 Del.C. § 464 - use of force in self-protection. 19 Hall v. State, 431 A.2d 1258 (Del. 1981) which recognized accident as a defense. 20 11 Del.C. § 302(b). 9 Criminal Code designates som e statutory defenses as affirmative and others as defenses. Where a defendant interposes an affirmativ e defense, that defense must be proven by a preponderance of the evidence.21 To meet that burden the defendant must persuade the fact finder that the evidence makes it more likely than not that each element of the affirmative defense existed at the required time .22 In short, a probability. A defense, on the other hand, has no equivalent burden: (a) When a defens e declare d by this Criminal Code or by anoth er statute to be an affirm ative is raise d at trial, the defendant has the burden of establishing it by a preponderance of the evidence.23 As stated, the Court h as to be sa tisfied there is some credible evidence in order for the defense to go to the jury. T his is a much lo wer threshold . It means, in another way, that there is a possibility such a d efense ex ists. Reaso nable do ubt s ow n terms speak in terms of possibilities, not probabilities.24 21 11 Del.C. § 304(a). 22 11 Del.C. § 304(c). See subsection (b) which states: Unless the Court determines that no reasonable juror could find an affirmative defense established by a preponderance of the evidence presented by the defendant, the defendant is entitled to a jury instruction that the jury must acquit the defendant if they find the affirmative defense established by a preponderance of the evidence. 23 11 Del.C. § 304(a). 24 Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. Therefore, based upon your conscientious consideration of the evidence, if you are firmly convinced that the defendant is guilty of the crime charged, you should find the defendant guilty. If, on the other hand, you think there is a real possibility or, in other words, a reasonable doubt, that the defendant is not guilty, you must give the defendant the benefit of that doubt by finding the defendant not guilty. 10 Earlier the Court noted that, because somnambulism was a defense and not an affirmative defense, it was d ispositive of the secon d and prim ary prong of the State s argument in this case. The State argues that Dr. Ferreira had to state his opinion within reason able medical pro bability. He d oes not have to . He has to opine is that it was possible the defendant was in a state of somnambulism at the time of the offenses. The State would be correct about the reasonable probability argument if this defense were an affirmative defense. That is why its concession led it astray. The result is that Dr. Ferreira s opinion, as expressed in his letter of June 3, 2005, creates the poten tial of lega l innocen ce to the degree th at Cabre ra mus t be allow ed to withdraw his guilty pleas. The inquiry does not stop there, however. The Court has been presented with a letter opinion from Dr. Ferreira. There is no curriculum vitae attached and nothing about him, beyond this letter. The letter is a matter of record in this case. While the Court finds his letter is sufficie nt to establish legal innocen ce to en able Ca brera to w ithdraw his guilty pleas, the Court will not presume the State will concede, for trial purposes, Dr. Ferreira s qualifications or the basis for his opinion. That opinion, of course, is an expert op inion. The decision to admit expert testimony at trial is within this Court s discretion.25 Up until now, the Court has assumed for purposes of the legal innocence analysis that Dr. Ferre ira s opinion would be admiss ible at trial. 25 Moorhead v. State, 638 A.2d 52, 56 (Del. 1994). 11 The opinion is clearly one outside normal experience and knowledge of lay people.26 As such, it falls w ithin the evidentiary rules on experts and expert opinions. 27 This Court acts as a gatek eeper to e nsure all e xpert testimony on a scientific, technical, and other special topics is relevant and reliable.28 The Cou rt has already deter mined D r. Ferreira s opinion is relevant. 29 There are a series of tests or standard s implica ted whe n expert te stimony is proffered: is the opinion base d on sufficient facts, is it the pro duct of reliable principles and m ethods, a nd have the princip les and m ethods b een app lied reliability to the facts in this case.30 There is a five factor test to be applied in the determination of whether expert testimon y is to be ad mitted at tr ial: 1) That the expert witness be qualified; 2) That the evidence offered was otherwise admissible, relevant and reliable; 3) That the basis for the opinion are those reasonably relied upon by the experts in the field ; 4) That the specialized knowledge being offered will assist the trier of fact to under the evidence or determine a fact in issue; and 26 Floray v. State, 720 A.2d 1132, 1135 (Del. 1998). 27 D.R.E. 702, 703. 28 Flamer v. State, 585 A.2d 726, 754 (Del. 1990). 29 See also, State v. Magnes, 732 A.2d 234 (Del. 1997). 30 D.R.E 702; Ward v. Shoney s, Inc., 817 A.2d 799, 802 (Del. 2003). 12 5) Whether such ev idence w ould crea te unfair prejudice, confuse the issues or mislead the jury.31 As gatekeeper, the Court has broad latitude to determine whether the Daubert 32 factors are or are not reasonable measures of reliability in a case.33 These factors, however, are merely meant to be helpful as they do not constitute a definite checklist or test but are tied to the facts of a particu lar case. 34 The Daubert test is whether any particular opinion is based on valid reasoning and reliable methodology, not whether the expert opinion has the best foundation.35 Dr. Ferreira would appear qualified because of his knowledge, experience, training and education. The proffered testimony concerns evidence that potentially negates an element of the offense. His letter indicates he consulted another e xpert as w ell as availa ble sources which tends to indicate that the basis for his opinion are reasonably relied upon by experts in the field. Knowledge about sleepwalking will enable the finder of fa ct to understand Cabrera s defense of sleepwalking and to determine whether or not he was sleepwalking at the time of the offe nses. Th ere is no in dication th at the testim ony w ould create unfair prejudice, confuse the issue or mislead the finder of fact, the jury 31 Nelson v. State, 628 A.2d 69, 74 (Del. 1993). 32 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). 33 M.G. Bancorporation, Inc. v. Le Beau, 737 A.2d 513, 521 (Del. 1999). 34 Kumho Tire Co v. Carmichael, 526 U.S. 137, 149, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999), quoting Daubert, 509 U.S. at 593, 113 S.Ct. at 2796, 125 L.Ed.2d 469 (1993). 35 Pfizer v. Advanced Monobloc Corp., 1999 WL 743927 (Del.Super.), at *3. 13 Considering, however, that th e defens e of som namb ulism is re cognize d in this opinion for the time as defense to man y crimin al offense s, the Co urt, if the Sta te desires, will allow it to take the pre-trial deposition of Dr. Ferreira.36 If it does depose him and in good faith believes there is an evidentiary basis to challenge either Dr. Ferreira or his opinion (but not o n reaso nable ce rtainty ), it can file a mo tion to exc lude. H is qualifications and the b asis of his o pinion ar e issues to b e decide d pre-trial. T he State may, of course, choose not to depose Dr. Ferreira. That step will operate in this case as a presumption of a waiver of any challenge to his qualifications or basis for his opinion other than any reliance on what Cab rera told him. If it chooses to depos e him , arrangements are to made to have the deposition within 45 days of today s opinion. Summ ary The defense of somnambulism goes to whether Cabrera intentionally committed the offenses charged . A jury is not requ ired to accept th is explana tion, but h e should be able to make it to the jury. Credibility and weight of the expert testimony is to be determined by a jury where there is a logical basis for that testimony.37 Therefore, the Court finds that there is a fair and just reason to permit Cabrera to withdraw his guilty plea. The Court finds that the Daubert factors are a reasonable measure of reliability and are tied to the facts currently before the Court. Cabrera can present his sleepwalking 36 Superior Court Criminal Rule 15. 37 Hart v. Resort Investigations & Patrol, 2004 WL 2050511 (Del. Super.), at *4. 14 defense at trial. However, the Court is not ruling that Cabrera actually was sleepwalking at the time of the offenses charged. He can call competent expert witnesses and otherwise present evidence of this defense at trial. The State may call its own experts and challenge any evidence and/or witnesses presented by Cabrera. It is for the jury to accept or reject this defense. Conclusion For the reasons stated herein, the motion of Jose Cabrera to withdraw his guilty pleas is GRANTED. The matter is to be set for trial. J. 15
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