Buckingham v. State

• Decision Date: 29 March 1984
• Citation: 482 A.2d 327
• Parties: Stephen M. BUCKINGHAM, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 327

482 A.2d 327

Stephen M. BUCKINGHAM, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: March 29, 1984.

Decided: Aug. 22, 1984.

Upon appeal from convictions and sentences in Superior Court. Convictions AFFIRMED and the sentencing of defendant as an habitual offender is REVERSED and the case is REMANDED for resentencing.

T. Henley Graves, Fuqua & Graves, Georgetown, for appellant.

John P.M. Sandy, Deputy Atty. Gen., Georgetown, for appellee.

Before McNEILLY, MOORE, and CHRISTIE, JJ.

CHRISTIE, Justice:

I

Appellant appeals his convictions of various specific crimes. He also appeals from a holding that he is an habitual criminal under 11 Del.C. § 4214(a) ¹ and from his sentencing under that statute. We affirm his criminal convictions, but we set aside his sentencing under the habitual criminal act.

On April 8, 1983, at around 9:30 p.m., a man dressed in green pants and a denim jacket, wearing a ski mask, ran across the front of the Millsboro Acme grocery store and rushed into the store manager's enclosure. Inside the booth, the man pointed a gun at the manager and demanded that he open the store's safe. The manager did not comply. The gunman then shot the manager, jumped from the booth, grabbed the assistant store manager and ordered him to open the safe. When the assistant manager said that he could not open it, the masked gunman ran from the store and rounded a corner toward the rear portion of the parking lot.

While these events were taking place inside the Acme, a police officer (who had no knowledge of what had been going on in the store) happened to approach the parking lot in his patrol car. As he turned into the parking lot, he noticed an automobile at the rear of the parking lot with its taillights flashing. The officer thinking that the car was disabled, pulled up behind the car to render assistance. As the officer approached the car, appellant came running toward the car from the area behind the store. When he saw the officer, he threw his arms into the air.

The officer ignored that gesture for the moment, and appellant, together with another man who had been waiting in the car, and the officer attempted to deal with the apparently stalled vehicle. The young woman who was sitting behind the wheel failed in what appeared to the officer to be pretended attempts to start the car. The officer's suspicions were aroused by the relative ease with which the car was finally started and by the hasty appearance of appellant from behind the closed stores. He asked the two men and the woman for identification. The men said they had no driver's licenses. The woman produced a Delaware registration card in her own name for the vehicle and a California driver's license. This revealed an inconsistency as to her address.

As the officer was returning to his patrol car to issue the woman a warning for failure to have obtained a Delaware driver's license and to run a warrant check on the two men, an ambulance which had been called for the Acme manager pulled up beside him. The driver asked the officer whether he had called for the ambulance since someone had been shot at the Acme. The officer then called the dispatcher and was informed that there was a report of a robbery and shooting in the immediate vicinity.

Since an armed robbery had apparently occurred in the area from which the defendant had come, the officer took a shotgun in hand and ordered the three people to get out of the car. They were then "frisked" and their car was searched for weapons. By this time, additional police had joined the officer.

Under the passenger seat, a loaded pistol with one expended round was found. Another officer took appellant back to the Acme to be viewed by the eyewitnesses to the robbery. At that time, one customer said appellant's weight, height, and clothing matched those of the gunman but noted that the gunman had had a jacket, and another customer said he was fairly sure, although not certain, that appellant was the robber.

A denim jacket and ski mask were found on the ground adjacent to the Acme, lying in a direct line between the Acme and the stalled car.

Appellant was later indicted on two counts of attempted robbery in the first degree, conspiracy in the second degree, assault in the first degree, and two counts of possession of a deadly weapon during the commission of a felony.

There was a suppression hearing and a three-day jury trial. At the trial, the evidence outlined above was introduced. There was also evidence that defendant had confessed his guilt to a friend and described his actions in detail. Hairs found in the discarded ski mask also linked defendant to the robbery. Appellant did not testify at trial. He was found guilty of all the charges.

The State filed a motion to have appellant sentenced as an habitual criminal under the provisions of 11 Del.C. § 4214(a). Appellant admitted that he had been convicted of at least three previous felonies specified in the State's motion, and the Superior Court found that appellant was an habitual criminal under 11 Del.C. § 4214(a) and sentenced him to life imprisonment. He was given consecutive sentences on the other charges.

II

Appellant's prior record indicates that appellant was convicted in 1973 of burglary in the third degree, conspiracy to commit burglary in the third degree, and possession of a firearm during the commission of a felony. In 1977, appellant was convicted of robbery in the first degree and felony theft. On both occasions the convictions arose from a single set of criminal episodes.

On the basis of this Court's recent opinion in Hall v. State, Del.Supr., 473 A.2d 352, we find that appellant was not eligible to be sentenced as an habitual offender under 11 Del.C. § 4214(a), and we reverse the sentencing order and remand for resentencing.

In construing 11 Del.C. § 4214(b) in the Hall case, we held that the legislature intended to reserve the habitual offender penalties for those individuals who were not rehabilitated after the specified number of separate encounters with the criminal justice system and a corresponding number of chances to reform. The same basic approach is found to apply under 11 Del.C. § 4214(a) where three prior convictions are required by statute. Appellant's two sets of multiple convictions cannot be treated as three separate convictions under Delaware's habitual offender statute. Under the subsection of the statute here invoked, three separate convictions are required, each successive to the other, with some chance for rehabilitation after each sentencing, before the extreme penalty of life imprisonment may be brought to bear.

III

(A) Appellant argues that during the questioning and searches outside the Acme, the police failed to follow the requirements of 11 Del.C. § 1902, ² and, therefore, all the fruits of the police detention were seized in violation of his rights under the Fourth and Fourteenth Amendments of the United States Constitution. In addition, appellant argues that Delaware's detention statute, 11 Del.C. § 1902 is in itself unconstitutional because it allows a prolonged detention on less than probable cause and because its language allows police officers to use their own discretion in determining the adequacy of responses from persons questioned.

Appellant relies heavily upon the United States Supreme Court decision in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) for the proposition that Delaware's detention statute, 11 Del.C. § 1902, allows for the violation of a detained individual's constitutional rights. In the Dunaway case, the United States Supreme Court held, as a general proposition, that detention for custodial interrogation without probable cause violates the Fourth and Fourteenth Amendments of the United States Constitution. It is clear that 11 Del.C. § 1902 allows a peace officer to detain an individual on less than probable cause. This apparent infirmity of the statute was brought to this Court's attention in State v. Deputy, Del.Supr., 433 A.2d 1040 (1981). However, in that case, this Court did not attempt to apply the standards set forth in Dunaway because it was held that the ruling in Dunaway did not apply retroactively.

We now rule that the Dunaway decision as it has more recently been modified does not invalidate the search or the seizure of evidence complained of in the case at bar because there are recognized exceptions to the sweeping statements made in Dunaway.

In the subsequent decision of Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) the United States Supreme Court reflected upon its holding in Dunaway, stating:

[a]lthough we refused in Dunaway to find an exception that would swallow the general rule, our opinion recognized that some seizures significantly less intrusive than an arrest have withstood scrutiny under the reasonableness standard embodied in the Fourth Amendment. In these cases, the intrusion of the citizen's privacy "was so much less severe" than that involved in a traditional arrest that "the opposing interest in crime prevention and detention and in the police officer's safety" could support the seizure as reasonable.

After a discussion of several of the leading cases ³ in the area of search and seizure "intrusion" on less than probable cause, the Court came to the following conclusion:

These cases recognize that some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity. In these cases, as in Dunaway, the Court was applying the ultimate standard of reasonableness embodied in the Fourth Amendment. They are consistent with the general rule that every arrest, and...