Brown v. State
| Decision Date | 06 April 1999 |
| Docket Number | No. 10, 1998.,10, 1998. |
| Citation | 729 A.2d 259 |
| Court | United States State Supreme Court of Delaware |
| Parties | Patrick L. BROWN, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. |
John F. Brady, Office of the Public Defender, Georgetown, Delaware, for appellant.
Kim Ayvazian, of the Department of Justice, Georgetown, Delaware, for appellee.
Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT and BERGER (constituting the Court en Banc). HOLLAND, Justice:
Patrick L. Brown ("Brown") was indicted on July 15, 1996, in connection with a robbery and shooting incident that occurred on May 9, 1996. Brown's jury trial commenced on May 28, 1997, based upon an 18 count indictment. Brown was convicted of 13 of the 18 counts. On December 8, 1997, Brown received a total sentence of 26 years and 30 days at Level V, with portions suspended for lower levels of supervision. This is Brown's direct appeal of his convictions.
Brown has raised three issues on appeal. First, Brown submits that the Superior Court erred in failing to dismiss the conspiracy counts because the indictment did not allege an overt act. Second, Brown contends that the Superior Court denied him his Sixth Amendment right to present defense witnesses by sustaining those witnesses' invocation of their Fifth Amendment right against self-incrimination. Third, Brown contends that the Superior Court erred by failing to give the jury a specific unanimity instruction.
This Court has carefully considered each of Brown's arguments. We have concluded that no reversible error occurred during Brown's proceedings in the Superior Court. Accordingly, the judgments of the Superior Court are affirmed.
In the predawn hours of May 9, 1996, four individuals wearing ski masks broke into the home of Zara and Kelvin Grambell near Bridgeville, Delaware. In addition to the Grambells, Zara Grambell's two sons Danielle and Harrell Richards, and her two nephews Danny Parker and Ronnelle Jones were present at the Grambell residence. The victims testified that: the individuals were armed with handguns; demanded money and drugs; physically assaulted some of those present; and fired several shots within the home. Ronnelle Jones was shot in the leg after $100 was taken from him. Danielle Richards and Ronnelle Jones described the assailants' car as a white Dodge.
Later that morning, at approximately 4:00 a.m., a Delaware State Trooper was traveling on County Road 213 near Ellendale when he noticed a white Dodge automobile, which fit the description of the one involved in the Grambell incident, stuck in the mud. Brown and co-defendants Charles Turner ("Turner"), Lester and Charles Hickman ("The Hickmans") and Jerry Henry ("Henry") were trying to free the Dodge. Brown, who was wearing a pull-down ski mask, became verbally abusive toward the State Trooper. The State Trooper placed Brown under arrest for disorderly conduct.
During an inventory search of the car, two rounds of .22 caliber ammunition were found.1 Turner was arrested and gave a statement implicating Henry and the Hickmans in the Grambell incident. When Henry was arrested, he gave a statement implicating Turner, the Hickmans and Brown in the incident.
In these statements, Brown's co-defendants indicated that, prior to the Grambell incident, Brown directed Turner, the driver, to a house where an alleged drug dealer named Jerome lived ("the Jerome incident"). Brown allegedly told Turner and the other co-defendants to rob Jerome. Henry refused because there were people present who knew him. After that, Brown allegedly ordered the others to the Grambell residence.
The Hickmans, Turner, Henry and Brown were subsequently indicted on numerous charges related to the Grambell incident. The amended indictment charged Brown with the following criminal offenses: Attempted Robbery in the First Degree (three counts); Burglary in the First Degree; Possession of a Firearm During the Commission of a Felony (four counts); Conspiracy in the Second Degree (four counts); Criminal Mischief; Robbery in the First Degree; Kidnaping in the Second Degree; Assault in the First Degree; Disorderly Conduct; and Possession of a Firearm by a Person Prohibited.
All of the defendants, except Brown, entered guilty pleas pursuant to agreements with the State. Turner and Henry agreed to enter guilty pleas to certain charges while others would be nolle prossed. They also agreed to testify on behalf of the State at the trial of any co-defendants. The plea agreements stated that their sentences would be imposed after they testified and provided for no more than five years of incarceration, if they testified truthfully.
Lester Hickman entered guilty pleas and, prior to Brown's trial, received a sentence of five years. Charles Hickman entered guilty pleas and, after a presentence investigation, received a maximum incarceration of four and one-half years. The plea agreements of the Hickmans did not require them to testify for the State against any co-defendants nor did it condition their sentences on the nature of any trial testimony.
At trial, Turner and Henry testified for the State, alleging that Brown participated in the Grambell incident. Henry testified about the Jerome incident as follows: that Brown instructed Turner to drive to Jerome's home; once there Brown directed Henry to rob the occupants; and Henry refused so they proceeded to another location. Turner did not testify about the Jerome incident.
Brown called both of the Hickmans as defense witnesses to contradict the testimony of Henry regarding the Jerome incident. When asked whether they were with Brown and the other co-defendants on the night of May 8, 1996, both Hickmans invoked their Fifth Amendment privilege against self-incrimination. The Superior Court did not compel their testimony, and the Hickmans were excused.
At the close of the State's case, Brown moved for a judgment of acquittal with respect to the counts alleging conspiracy, claiming that the State had failed to identify a specific overt act. He made a similar application to dismiss the deadly weapons counts as overly vague because they each alleged two offenses as the predicate felony connected by the term "and/or." The Superior Court denied both applications.
Brown was convicted of the following criminal offenses: Attempted Robbery in the First Degree (one count); Robbery in the First Degree (one count); Conspiracy in the Second Degree (four counts); Possession of a Firearm During the Commission of a Felony (four counts); Burglary in the First Degree (one count); Assault in the Second Degree as a lesser-included offense of Assault in the First Degree and Disorderly Conduct. Brown was acquitted of two counts of Robbery in the First Degree, one count of Attempted Robbery in the First Degree, Kidnaping in the Second Degree and Criminal Mischief. The charge of Possession of a Firearm by a Person Prohibited was dismissed at the close of the State's case.
Brown's first claim of error is that the indictment was fatally defective in that it failed to specify a specific overt act in each conspiracy count. An indictment performs two functions: to put the accused on full notice of what he is being called upon to defend; and to effectively preclude subsequent prosecution for the same offense. Malloy v. State, Del.Supr., 462 A.2d 1088, 1092 (1983). These functions are fulfilled if the indictment contains a plain statement of the elements or essential facts of the crime. Id.; Super.Ct.Crim.R. 7(c).
A motion based upon a defect in the indictment must be raised prior to trial. Super.Ct.Crim.R. 12(b)(2). Like the defendant in Malloy, however, Brown challenged the indictment in a motion for judgment of acquittal under Superior Court Criminal Rule 29(a) rather than a pre-trial application. "`Such a long delay in raising the issue suggests a purely tactical motivation of incorporating a convenient ground of appeal in the event the jury verdict went against the [defendant].'" Id., quoting United States v. Pheaster, 9th Cir., 544 F.2d 353, 361 (1976)
. We have concluded that because Brown failed to raise this contention in a pre-trial motion, it was not properly preserved for appeal and thus was waived. Malloy v. State, 462 A.2d at 1092.
Brown's second argument is that the Superior Court failed to properly balance his Sixth Amendment right to call a witness against the Hickmans' Fifth Amendment privilege against self-incrimination. The United States Supreme Court has held that the trial court must determine whether a witness invoking his or her Fifth Amendment privilege "is confronted by substantial and `real', and not merely trifling or imaginary hazards of incrimination." Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). This Court followed the reasoning of Marchetti in holding that a witness who has entered into a plea bargain with the State does not necessarily relinquish his or her Fifth Amendment rights. See Zebroski v. State, Del.Supr., 715 A.2d 75, 80-81 (1998)
.
Brown argues that the Superior Court erred in sustaining the Hickmans' invocation of their Fifth Amendment rights because the Hickmans had no justifiable fear of self-incrimination. Brown bases that contention on the fact that the Superior Court had already sentenced Lester Hickman regarding the Grambell incident and that Charles Hickman had pled guilty and negotiated a maximum cap on the State's recommended sentence in his plea agreement. We have concluded that this argument is without merit.
A criminal defendant has the right to compulsory process to obtain the appearance of witnesses to testify on his behalf. U.S. Const. amend. VI; Del. Const. art. I, § 7. When a defendant's Sixth Amendment right to compulsory process conflicts...
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