Collins v. State

• Citation: 420 A.2d 170
• Parties: Larry COLLINS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Decision Date: 28 July 1980
• Court: United States State Supreme Court of Delaware

Page 170

420 A.2d 170

Larry COLLINS, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted Feb. 11, 1980.

Decided July 28, 1980.

Upon appeal from Superior Court. Reversed and Remanded.

Mary C. Boudart (argued), Wilmington, for defendant below, appellant.

Lucille K. Cirino (argued), Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.

Before HERRMANN, C. J., McNEILLY and HORSEY, JJ.

HORSEY, Justice:

Defendant, Larry Collins, was indicted for murder in the first degree and convicted in Superior Court in trial by jury of murder in the second degree, that is felony murder, in violation of 11 Del.C. § 635(2) ¹ and was sentenced to life imprisonment. His appeal asserts four grounds for reversal of the judgment.

I

The facts relevant to the appeal are as follows:

Indicted for murder in the first degree for an unrelated crime involving two co-defendants who had given statements accusing him of the offense, defendant accepted the State's offer to plead guilty to manslaughter. Defendant then, through his court-appointed attorney, informed the State that he wished to make a statement concerning other criminal activity implicating himself and the aforementioned co-defendants-provided that he be given immunity for the criminal activity to be disclosed. The State's attorney responded by orally informing defendant's counsel that defendant would be given immunity as to robberies and any other criminal activity except homicide and rape. ²

Defendant's attorney, an experienced and knowledgeable trial lawyer, relayed the immunity offer to defendant who accepted it. Apparently counsel did not question defendant as to what criminal activity defendant wished to disclose. Indeed, counsel did not explain the grant of immunity in great detail, but stated that he was confident that defendant understood what immunity was and the scope of this limited grant. Counsel was also aware that defendant's education was limited; that he had a low IQ; and that defendant was not "mentally acute."

Counsel's recollection of the State's explanation of its immunity offer was that it was not "elaborate(ly)" detailed but was simply stated that the State's immunity offer would not extend to any criminal act resulting in death. The agreement was not reduced to writing; and the State, before taking defendant's statement, admittedly did not advise defendant that if he gave a statement about robbery (or other offense) from which a death later resulted, the State reserved the right to prosecute for that death.

Defendant then proceeded to divulge to the police his involvement, along with his companions, in an armed robbery of a huckster in Wilmington in November, 1973. Defendant stated that he had struck the victim on the head with a shotgun, taken the victim's wallet, and fled.

At that point the police, believing defendant to have identified a victim who later died from his injuries, interrupted defendant to warn him that the robbery in question may have resulted in a homicide and terminated the interview. Defendant's November 1973 robbery victim had, in fact, died the following May from injuries received in the robbery.

Defendant was subsequently indicted for felony murder, armed robbery, conspiracy, and possession of a deadly weapon during the commission of a felony all rising out of the admitted 1973 incident. The State nolle prossed all the charges against defendant other than the felony murder count. ³ The Court refused to dismiss the murder charge, reasoning that the State had not actually granted defendant immunity from any robbery or similar offense but had simply "agreed not to prosecute" defendant for any offense except rape or homicide. Since felony murder involved a homicide, the Trial Court concluded that the State's agreement did not extend to prosecution for that crime.

For the reasons hereafter stated, we find that defendant was immunized from conviction of second degree felony murder but not from the lesser included offense of manslaughter; we reject defendant's other grounds for reversal; and we remand for resentencing of defendant for manslaughter.

II

We first consider Collins' contention that the indictment was fatally defective in (1) failing explicitly to charge defendant with recklessly causing the death of the victim in accord with 11 Del.C. § 636(a)(2); and (2) failing to allege that the victim's death was caused in "the course of and in furtherance of the commission" of the felony. We find neither defect to be reversible error.

The indictment charged that defendant and another, "during the commission of a felony of robbery first degree upon Walter R. Slattery, as contained in Count I of this Indictment, did recklessly strike said Walter R. Slattery on the head with a shotgun inflicting injury which caused the death of Walter R. Slattery on May 28, 1974." Conceding that the indictment misplaced the word "recklessly" and omitted the statutory language that defendant recklessly caused the death of another "in the course of and in furtherance of the commission" of the felony, the State contends the indictment was sufficiently clear to put defendant on notice of the crime with which he was charged so as to permit him to prepare a defense and to avoid double jeopardy. We agree. See McCoy v. State, Del.Supr., 361 A.2d 241 (1976).

The indictment clearly charged defendant with a homicide occurring "during the commission of a felony." Despite the omitted words from § 636(a)(2), it was nonetheless patently clear from the indictment that defendant was charged with a reckless homicide occurring in the course of the commission of a felony. See Pepe v. State, Del.Supr., 171 A.2d 216 (1961), appeal dismissed per curiam, 368 U.S. 31, 82 S.Ct. 145, 7 L.Ed.2d 90 (1961). Similarly, the misplacement within the indictment of the term "recklessly" so as to modify the verb "strike" rather than the phrase "caused the death" of the victim cannot reasonably be construed as not charging defendant with lessly causing the death of the victim. Again, while inartfully drawn, the indictment was sufficiently clear to put defendant on notice that he was charged with recklessly causing the death of the victim. It cannot reasonably be contended that defendant was thereby misled to his prejudice or that he was without full notice that he was charged with felony murder in violation of 11 Del.C. § 636(a)(2).

Since we find that the indictment was sufficient to support a charge of first degree felony murder requiring a reckless state of mind, it is a fortiori sufficient to support a conviction of second degree felony murder requiring a lesser degree of criminal mens rea, namely criminal negligence.

III

Next, defendant contends that State's grant to defendant of immunity from prosecution for all crimes except homicide and rape barred his prosecution and conviction for felony murder in violation of 11 Del.C. § 635(2). Defendant says this is so because an essential element of such an offense is the commission of a felony, here robbery, for which defendant had been granted immunity.

The State responds that defendant was not granted immunity per se from all criminal offenses other than homicide or rape; rather the State only entered into an agreement not to prosecute defendant for specified crimes-to wit, any crime other than homicide or rape. Thus, when defendant voluntarily divulged his participation in a criminal act that resulted in a homicide, he put himself outside the agreement; and the State was not precluded from prosecuting Collins for any homicide offense, including felony murder. We disagree.

The parties spoke in terms of immunity and not in terms of an agreement not to prosecute for certain offenses. Defendant stated that he wanted immunity; and the State responded by offering him immunity-in a limited form. The word "immunity" was expressly used by both sides in their discussions with each other. ⁴ Thus we conclude that the parties clearly reached an agreement as to immunity of defendant from all crimes other than homicide or rape. This, then, brings us to 11 Del.C. § 475. ⁵

Section 475 recognizes the power of the Attorney General and his deputies, or the Court, under § 3506, to grant immunity from prosecution in two respects. The first sentence permits an affirmative defense based on immunity as to prosecution "for that offense" for which immunity has been granted. The second sentence then covers immunity that is based on that granted "for a different offense." But as to the latter, § 475 reads:

"It is also an affirmative defense that the accused was granted immunity from prosecution for a different offense when prosecution for the offense (sic) as to which immunity was granted under § 208 of this title, provided that the Attorney General or his deputy may, in granting immunity, stipulate that the immunity applies only to a specific offense, in which case effect shall be given to the stipulation."

It is obvious that the second sentence of § 475 has been garbled so as to be unintelligible and hence incapable of application as written. But it would appear that this results from an omission of significant words after the words "the offense" and immediately before the words "as to which immunity was granted under § 208 of this title." As it reads, the sentence is incomplete; the phrase, "when prosecution for the offense" has been left dangling without a verb and modifiers necessary to complete the sentence.

The omitted language is to be found in the legislative history of the enactment of § 475 as well as the Commentary on § 475 as it was originally proposed for enactment. Section 475 originated in Senate Bill 356 of the 126th General Assembly which in turn is based upon § 281 of the Governor's Committee for Revision of the Criminal Law (1967). This section as proposed by the Governor's Committee and as introduced in the Senate read as follows:

"In any prosecution for...