Comer v. State

• Decision Date: 28 July 2009
• Docket Number: No. 281, 2008.,281, 2008.
• Citation: 977 A.2d 334
• Parties: Lamar COMER, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee.
• Court: Supreme Court of Delaware

977 A.2d 334

Lamar COMER, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee.

No. 281, 2008.

Supreme Court of Delaware.

Submitted: April 29, 2009.

Decided: July 28, 2009.

Court Below: Superior Court of the State of Delaware, in and for New Castle County, ID No. 0410023811.

Upon appeal from the Superior Court. REVERSED AND REMANDED.

Jennifer-Kate Aaronson, Esquire (argued) and Andrew W. Gonser, Esquire, Wilmington, DE, for appellant.

Timothy J. Donovan, Jr., Esquire (argued), of the Department of Justice, Wilmington, DE, for appellee.

Before STEELE, Chief Justice, HOLLAND, JACOBS, and RIDGELY, Justices, and MILLMAN, Judge,^* constituting the Court en Banc.

RIDGELY, Justice:

This case arises from a gunfight in Wilmington, during which an innocent bystander, Bakeem Mitchell, was shot and killed. Defendant-Appellant Lamar Comer, one of three men charged with Mitchell's death, appeals his Superior Court conviction of murder in the first degree (felony murder) for which he was sentenced to life in prison.¹ Comer raises three arguments on appeal. First, he contends that the trial court erred in instructing the jury on the felony murder charge. Specifically, he claims that the jury instructions allowed him to be convicted of felony murder absent evidence that he, or one of his co-conspirators, fired the fatal shot. Second, he contends that the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence at trial to convict him of felony murder. Third, he argues that the trial court erred when it denied his request for a third party culpability jury instruction. We find merit in Comer's first argument, but find that his second argument lacks merit and that his third argument is moot. We reverse his conviction for felony murder in the first degree. However, the State may elect, in lieu of a new trial, to accept the entry of a judgment of conviction of manslaughter before the Superior Court.

I. Facts and Procedural History

On October 25, 2004, at approximately 7:00 p.m., Bakeem Mitchell was shot and killed by a stray bullet near the corner of Fifth and Madison Streets in Wilmington. Ballistic evidence introduced at trial indicated that Mitchell was an innocent bystander killed by a ricocheted bullet in a shootout involving Lamar Comer, Derrick Williams, Clifford Reeves, and Frank Johnson.

Although the facts and testimony were in dispute, it appears that, at the moment Mitchell was shot, Johnson was driving his vehicle the wrong way on Fifth Street in Wilmington, through its intersection with Madison Street. Some trial evidence indicated that Comer and his co-defendants, Williams and Reeves, began shooting at Johnson near Sixth and Monroe Streets, and that they continued to fire at Johnson from the corner of Fifth and Monroe as he drove his vehicle up Fifth Street. Supporting this scenario, ten 9mm bullet casings were recovered from the intersection of Fifth and Monroe. One witness indicated that Comer, on foot, had pursued Johnson's vehicle up Fifth Street, continuing to fire his weapon. Other trial evidence indicated that Johnson may have either returned fire towards Comer, Williams, and Reeves, or executed a "drive-by" shooting of Mitchell.

Comer, Williams, and Reeves were each indicted on murder in the first degree (felony murder of Mitchell), attempted murder in the first degree (Johnson), conspiracy in the first degree (Johnson), reckless endangering in the first degree, possession of a firearm/ammunition by a person prohibited ("PFPP"), and three counts of possession of a firearm during the commission of a felony ("PFDCF"). At trial, the State argued that Comer and his co-conspirators had recklessly engaged in a gunfight with Johnson. The State's theory was that, although all three co-defendants initially ran after Johnson's car and fired at it, Comer was the only person still firing on Fifth Street, and thus, was the only person capable of striking Mitchell. The State also presented evidence that no gunfire came from Johnson's car. The State suggested that the only person who could have killed Mitchell was Comer.

In contrast, Comer's defense was that the two incidents were separate criminal actions, and that he, Williams, and Reeves happened to be firing at Johnson at the same time Johnson was attempting to murder Mitchell. Comer argued that the testimony was too inconsistent to harmonize, and that the jury could not possibly determine who was shooting at the time Mitchell was killed. Comer also argued that Johnson was the only person firing a gun, and since Johnson's testimony was so inconsistent, Johnson could not be believed.² Comer contended that there was no physical evidence tying him to the crime scene and never admitted that he was even near the crime scene during the shooting.

Over the objection of Comer, the trial court instructed the jury as follows on the element of causation:

A Defendant causes the death of another person when the Defendant's voluntary act brings about that person's death, which would not have happened but for Defendant's act. If it is demonstrated beyond a reasonable doubt that a Defendant recklessly fired shots along with others and a person's death was caused by one of those shots, or if it is proved beyond a reasonable doubt that [a] Defendant recklessly participated in an exchange of gunfire that caused a person's death, then the State need not prove that a particular shot, fired by a particular person caused the death. The State, however, must prove beyond a reasonable doubt that a Defendant recklessly participated actively in the fatal shooting and that the death did not occur independently from Defendant's conduct, before it can be said that he was a legal cause of the death.

The jury subsequently found Comer guilty on all charges except PFPP, but acquitted Reeves and Williams of all charges except the lesser-included offense of conspiracy in the second degree.³ Comer moved for judgment of acquittal and renewed a motion to dismiss, which the court denied.⁴ Comer also filed a motion for reargument, which was also denied.⁵ The trial court then sentenced Comer, and this appeal followed.

II. The Agency Theory of Felony Murder Applies in Delaware

Comer contends that the trial court committed legal error when it instructed the jury that it did not need to find that Comer, or one of his co-conspirators, fired the bullet that killed Mitchell in order to be convicted of felony murder. He asserts that Delaware adheres to the agency theory of felony murder, which requires that "the act of killing must be that of defendant and to be defendant's act it must be committed by defendant or one acting in concert with him."⁶ Comer argues that the instruction on causation was legally incorrect because it allowed the jury to convict him solely on the basis of his participation in the gun battle and without determining whether he, Williams, or Reeves fired the fatal shot. In response, the State recognizes that the agency theory has been the law in Delaware, but argues that the General Assembly rejected the agency theory, in favor of the proximate cause theory, when it amended the felony murder statute in 2004. Under the proximate cause theory, criminal liability would attach, and a mandatory life sentence would be imposed, when anyone is killed by another person during the course of a felony. We find that the agency theory remains the rule in Delaware, and that the General Assembly did not change this rule when it amended the statute in 2004.

A. The felony murder statute.

Comer was charged with murder in the first degree pursuant to Delaware's felony murder statute, 11 Del. C. § 636(a)(2) which provides that a person is guilty of murder in the first degree when:

While engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any felony, the person recklessly causes the death of another person.⁷

The General Assembly amended Section 636(a)(2) effective May 19, 2004, four months before the homicide in this case. Pre-amendment, the statute imposed first degree murder liability when, "[i]n the course of and in furtherance of the commission or attempted commission of a felony or immediate flight therefrom, the person recklessly causes the death of another person...."⁸ The Synopsis to the bill amending the statute indicates that the legislature intended to be more consistent with the majority approach, noting that removing the phrase "in the course of and in furtherance of" made Section 636(a)(2) utilize language similar to that used in the felony murder statutes in thirty-eight other states.⁹ The question thus before us, is whether this amendment supersedes the agency theory of felony murder previously settled by Delaware caselaw. We hold it does not.

1. Pre-amendment interpretations of the statute adopt agency theory.

Title 11, sections 635(2) and 636(a)(2) of the Delaware Code codify the common law felony murder rule.¹⁰ Nearly thirty years ago, in Weick v. State,¹¹ we recognized that "[t]he purpose of the [common law] rule was to clothe the actions of the accused and his co-felons, if any, with an implied-in-law malice, thus enabling the courts to find the felon guilty of common-law murder when a killing was committed by one of the felons in the perpetration of the felony." We noted, however, that the common law rule originated at a time when all felonies were punishable by death and "[w]ith the general trend toward mitigation in the severity of punishment for many felonies, and with the addition of many statutory felonies of a character less dangerous than was typical of most common law felonies, the irrationality and unfairness of an unlimited felony-murder rule become increasingly apparent."¹² Therefore, limits were placed on the scope of the rule.¹³ One such limitation, which we recognized in Jenkins v. State¹⁴ and reaffirmed in Weick, "was the requirement...