State of Delaware v. Brower.
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SUPERIOR COURT OF THE STATE OF DELAWARE WILLIAM C. CARPENTER, JR. JUDGE NEW CASTLE COUNTY COURTHOUSE 500 NORTH KING STREET, SUITE 10400 WILMINGTON, DE 19801-3733 TELEPHONE (302) 255-0670 May 14, 2008 James J. Haley, Jr., Esquire 1716 Wawaset Street P.O. Box 188 Wilmington, DE 19899 John Downs, Esquire Para Wolcott, Esquire Department of Justice 820 N. French Street Wilmington, DE 19801 RE: State of Delaware v. Jason Brower ID No. 0702000289 Upon State s Motion for Reargument - DENIED Submitted: April 17, 2008 Decided: May 14, 2008 Dear C ounsel: Presen tly before the Court is the State s Motion for Reargument. The State is requesting the Court to reconsider its prior ruling that the Court should have given additional lesser included offenses to the jury and its failure to do so mandated a new trial. The Court s earlier opinion was based upon the Supreme Court decision in Lilly v. Sta te1 which the State a rgues is 649 A.2d 1055 (Del. 1994). 1 only applicable if a party requests an instruction according to State v. Cox.2 While the Court a ppreciates the arguments made by the State, it does not believe that the Cox decision can be read as broadly as argu ed by the State so as to require reversal of its earlier decision. Therefore, the Motion will be denied. The Cox decision is an exce llent dissertation on the various doctrines used throughout the country regarding the Court s role in d eciding w hen to give lesser included offenses. The Delaware Supreme Court has declared Delaware a party au tonomy jurisdiction that generally finds that the Court should not sua spo nte give a lesser included offense unless it has been requested by a party. In making its finding the Court stated: In general th e trial judge should withhold charging on lesser included offense[s] unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system, by permitting counsel to decide on tactics. If counsel asks for a lesser-included offense instruction, it should be freely given. If it is not requested by counsel, it is proper ly omitted by the tr ial judge, a nd certain ly should not be initiated by the judge after summations are completed, except possibly in an extreme case.3 The Court f inds that th is ruling b y the Su preme C ourt req uires trial co urts to generally not interject into the adversarial process its perception as to what lesser included offenses may be rationally s uppor ted by the evidenc e until a lesser included instruction is requested by a party. Howev er, the Court also finds that the prohibition is not absolute. If it were, the Supreme Court s finding that a lesser included offense certainly should not be initiated by a judge after summations are completed, except possibly in an extreme case would be meaningless. In additi on, it remains unclear what the role of the Court should be once the door is opened by a party by requesting some lesser 851 A.2d 1269 (Del. 2003). 2 Id. at 1273. 3 included offenses and not others. It is at least arguable that even under Cox there is a logical, f air and ap propria te role for the Cou rt to ensure all reasona ble and rational instructions are given once a party makes a requ est. This ensures that fair and balanced instructions will be given to the jury so that all reasonable outcomes can be co nsidered . It also allow s the Co urt to prevent a future Rule 6 1 petition wh en it appears clear th at the defendan t s counsel was simply asleep at the switch when the issue of lesser included offenses was being discussed. In other words, when the all or nothing theory of a defendant s case has been undermined by the State s request for a lesser included offense , it becom es more difficult to find that th ere is a ratio nal, tactical trial decision not to include other lesser included offenses for the jury s consideration. As such, the Court finds that while the general practice is not to sua sponte instruct on lesser included offenses, it is not strictly prohibited by Cox when it appears to be appropriate and fair. In addition, the Court finds that once the State made its request for a lesser included offense, it opened the door for the C ourt to in clude oth er additio nal lesser in cluded o ffenses, e ven sua sponte if necessary so long as there was a rational basis to do so. As such, the Court s earlier opinion has not overlooked the controlling precedent or legal principal nor has it misapprehended the law or facts that would affect the outcome of that decision. Therefore, the Motion is denied and the new trial ordered in the March 28th Opinion remains the law of the case. IT IS SO ORDERED. /s/ William C. Carp enter, Jr. Judge William C. Carpenter, Jr. WCCjr:twp cc: Prothonotary
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