Allen v. State
| Decision Date | 17 February 2009 |
| Docket Number | No. 665, 2007.,665, 2007. |
| Citation | 970 A.2d 203 |
| Parties | James ALLEN, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. |
| Court | Supreme Court of Delaware |
Court Below—Superior Court of the State of Delaware, in and for New Castle County, I.D. No. 0208020748.
Upon appeal from the Superior Court.
REVERSED and REMANDED.
James J. Haley, Jr., Esquire, Ferrara, Haley & Collins, Wilmington, Delaware, for appellant.
James T. Wakley, Esquire, Department of Justice, Wilmington, Delaware, for appellee.
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.
The defendant-appellant, James Allen, appeals his Superior Court conviction on various charges arising from three separate incidents. Allen raises five arguments on appeal. First, Allen contends that the Superior Court erred by refusing his request to instruct the jury pursuant to Title 11, section 274 of the Delaware Code. Second, he argues that the Superior Court committed reversible error by limiting his attorney's cross-examination of co-defendant Issiah Howard on prior crimes. Third, Allen claims that the Superior Court erred when it refused to grant his request for a mistrial. Fourth, he alleges that the Superior Court committed plain error by failing to follow proper procedure before submitting the charge of Kidnapping in the Second Degree to the jury. Finally, Allen argues that the Superior Court erred when it granted the State's Motion to Declare Defendant a Habitual Offender.
We have concluded that all of Allen's convictions must be reversed because of the Superior Court's failure to instruct the jury in accordance with section 274. Therefore, this matter is remanded for further proceedings in accordance with this opinion.
Allen was indicted on numerous charges arising from three separate incidents, which took place on May 31, 2002, August 12, 2002, and August 27, 2002.1 Following a jury trial, Allen was found guilty on several of the charges and he was declared a habitual offender by the Superior Court. He then appealed to this Court, which held that "the trial court erred when it admitted into evidence a non-testifying co-defendant's guilty plea agreement under the circumstances of this case and that this error require[d] a new trial."2
We remanded the case for a new trial and a jury found Allen guilty of all charges except Attempted Robbery in the First Degree and Conspiracy in the Second Degree as to the August 27, 2002, incident. Subsequently, the State filed a Motion to Declare Defendant a Habitual Offender, which the Superior Court granted. The Superior Court sentenced him accordingly and this appeal followed.
Allen and co-defendants Howard and McCray were indicted on twenty charges arising from three separate burglary incidents in New Castle County during the summer of 2002. The State alleged that on the evening of May 31, 2002, Allen, Howard and McCray went to a Wilmington Savings Fund Society ("WSFS") Bank branch in Newark in Allen's Volvo. McCray, armed with a handgun, climbed to the roof of the building. Howard stood watch behind the bank while Allen did the same in front. Each man had a walkie-talkie to communicate with the others. A short time later, McCray radioed Howard that he needed help cutting the hole in the roof. Howard joined McCray on the roof, leaving Allen to guard the front of the building. Once the two men successfully cut a hole in the roof and dropped a rope in the hole, they waited until the bank opened the next morning.
Early the next morning, Allen called Howard and told him he was returning to his home to exchange his Volvo for a Jeep Cherokee he also owned. After he returned, Allen radioed McCray and Howard to tell them that the bank was being opened. McCray and Howard descended the rope into the bank and accosted one of the two female employees inside. McCray ran into the vault and grabbed as much cash as he could until Allen radioed that it was time to leave the bank. Howard and McCray climbed back up the rope to the roof, jumped off the roof onto a dumpster and got into Allen's Jeep. The three men fled the scene of the robbery in the vehicle. When the men arrived at Allen's home, they changed clothes, divided the $39,000 taken from the bank and parted ways. Howard and McCray drove back to New Jersey. The indictment charged each of the three men with six offenses in connection with this incident: (1) Robbery in the First Degree; (2) Burglary in the Second Degree; (3) Conspiracy in the Second Degree; (4) Criminal Mischief; (5) Possession of a Firearm During the Commission of a Felony; and (6) Wearing a Disguise During the Commission of a Felony.
The State further alleged that on August 12, 2002, the trio reunited to rob an EZ Check Cashing outlet. The three men again met at Allen's house, got into one of Allen's cars and cased the store from a Chinese restaurant across the street. They returned to Allen's home, loaded up his Jeep Cherokee with tools and waited until nightfall. That evening, the three men resumed their original duties—McCray climbed to the roof to cut the hole, Howard stood as a look-out behind the store and Allen watched the front. McCray needed assistance again and Howard joined him on the roof again.
A short time later, one of the men on the roof accidentally dropped something through the hole into the store and set off the alarm. McCray and Howard jumped off the roof and ran to Allen's car. They got in the car and watched the police arrive and soon depart, apparently finding nothing of note. Still nervous, the group returned to Allen's house. After a while, McCray decided to return to the store. Once he gave Howard and Allen the "all clear," they returned to the store as well. McCray ascended to the roof of the store again and waited for an employee of the store to deactivate the alarm in the morning. When the manager arrived, she found McCray in the back of the store brandishing a gun. After he forced the manager to open the store's safe, McCray ordered her into the restroom and handcuffed her to a railing. Then, McCray radioed his partners and told them that he had robbed the store successfully and was ready to leave. The three men returned to Allen's home and split the $12,000 in cash. Howard and McCray drove back to New Jersey. The indictment charged the three men with seven offenses in connection with this incident: (1) Robbery in the First Degree; (2) Burglary in the Second Degree; (3) Conspiracy in the Second Degree; (4) Criminal Mischief; (5) Possession of a Firearm During the Commission of a Felony; (6) Wearing a Disguise During the Commission of a Felony; and (7) Kidnapping in the Second Degree.
Finally, the State alleged that on August 26, 2002, the trio attempted to rob the Wal-Mart store in New Castle. Their first attempt to cut through the roof failed. Undeterred, they returned the next night with a blow torch. As McCray was cutting a hole in the roof, however, Allen radioed that an employee had come out of the store and was looking up at the roof. Soon after, three Wal-Mart employees climbed onto the roof with flashlights to find the source of the noise. As the Wal-Mart employees approached Howard and McCray, McCray pulled out a handgun and ordered one of the employees to the ground. Howard took off running, with McCray a short distance behind. McCray and Howard jumped into Allen's Jeep Cherokee and drove away. At Allen's home, McCray and Howard changed their clothes and started to drive back to New Jersey, but were arrested by the Delaware State Police. The indictment charged the three men with seven offenses in connection with this incident: (1) Attempted Robbery in the First Degree; (2) Attempted Burglary in the Second Degree; (3) Conspiracy in the Second Degree; (4) Criminal Mischief; (5) Aggravated Menacing; (6) Possession of a Firearm During the Commission of a Felony; and (7) Possession of Burglar's Tools.
Howard and McCray pled guilty to reduced charges prior to trial. Allen pled not guilty. A five-day jury trial commenced on July 30, 2003. The jury found Allen guilty on the charges relating to the attempted burglary of the Wal-Mart store on August 27, but the jury was unable to reach a verdict on the remaining charges pertaining to the WSFS Bank incident on May 31 and the EZ Check Cashing incident on August 12. The trial judge granted the State's motion to declare Allen a habitual offender and sentenced Allen on February 20, 2004.
In its opening statement, the State told the jury that its theory of the case against Allen was that of accomplice liability:
And at the end of this case, the State is going to ask you to find this guy guilty as an accomplice for the EZ Check Cashing store, the WSFS Bank, and the Wal-Mart robbery. And the State will prove those to you beyond a reasonable doubt.
In the case sub judice, the main charges against Allen, as an accomplice, were divided into degrees, e.g., Robbery in the First Degree,3 Burglary in the Second Degree4 and Aggravated Menacing,5 etc. The aggravating factor increasing the degree of each offense was the use of a gun.6
Title 11, section 274 of the Delaware Code provides that:
When, pursuant to [the accomplice liability statute], 2 or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of an offense of such degree as is compatible with that person's own culpable mental state and with that person's own accountability for an aggravating fact or circumstance.7
Allen requested a section 274 instruction so that the jury could make the statutorily required individualized determination regarding his "own culpable mental state" and his "own accountability for an aggravating fact or circumstance," i.e., the use of a gun.8 The trial judge denied his request. Allen contends that, "[g...
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