Dixon v. State, 426

• Decision Date: 19 March 1996
• Docket Number: 1994,No. 426,426
• Citation: 673 A.2d 1220
• Parties: Lloyd DIXON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 1220

673 A.2d 1220

Lloyd DIXON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 426, 1994.

Supreme Court of Delaware.

Submitted: March 19, 1996.

Decided: April 4, 1996.

Upon appeal from Superior Court. AFFIRMED in part; REVERSED in part; and REMANDED.

Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr. A. Nos. IN94-03-1590; IN94-04-0628; and IN94-04-0629.

Nancy Jane Perillo, Assistant Public Defender, Wilmington, for Appellant.

Timothy J. Donovan, Deputy Attorney General, Wilmington, for Appellee.

Before VEASEY, C.J., HOLLAND and HARTNETT, JJ.

VEASEY, Chief Justice:

In this appeal from convictions for Burglary First Degree and Robbery First Degree in which the defendant was sentenced to life imprisonment as an habitual offender, we consider: (1) the use of peremptory challenges by the State in an allegedly discriminatory manner; (2) the application of Delaware's robbery statute to an incident in which force was used solely in an attempt to escape after an attempted theft; and (3) the jury instructions appropriate to a situation in which the jury is allowed to find a defendant guilty based on either principal or accomplice liability.

We hold that the Delaware Criminal Code does not authorize conviction for robbery where there is no proof that the defendant used force to obtain stolen property and the defendant does not have possession of the stolen property when using force solely to effect an escape. Accordingly, we REVERSE on that ground, but AFFIRM in all other respects.

I. The Facts

Lloyd Dixon, defendant-below, appellant ("Dixon"), was convicted after a jury trial of Burglary First Degree and Robbery First Degree. He was sentenced by the Superior Court, as an habitual offender, to life imprisonment without parole on the burglary conviction. Dixon was also sentenced to an additional twelve years on the robbery conviction.

After an evening out, Mark Merritt and John Wallace, along with their friends Edward Acevedo and Celeste Frecon, returned to their apartment on Delaware Avenue in Wilmington at approximately 11:30 p.m. They sat in the living room in the front of the apartment, talking and listening to music. Mr. Merritt unlocked the back door when they arrived, so his dog could go outside. At about 2:00 a.m. Mr. Wallace noticed the reflection of a man in the glass of a picture hanging on the living room wall. He testified that the reflection was moving across the picture as if the figure were leaving the apartment through the kitchen. He quickly told the others. Messrs. Merritt and Acevedo went to the back of the apartment to see what was afoot.

Mr. Merritt went to the bedroom, and Mr. Acevedo followed with a candlestick holder. When Mr. Merritt reached the bedroom, he saw Dixon standing in the walk-in closet going through the clothes. The bedroom had been ransacked, and Dixon was holding a yellow shirt which Mr. Merritt testified belonged to him. Dixon apparently tried to hide by closing the closet door but quickly realized he had been discovered. Dixon dropped the clothes and ran for the bedroom door where Mr. Merritt was standing. Mr. Merritt tackled him as he passed into the sitting room. Dixon and Mr. Merritt fell to the kitchen floor and a struggle ensued. Mr. Acevedo meanwhile struck Dixon on the head with the candlestick holder, and Mr. Merritt held him down until the police arrived. Mr. Merritt testified at trial that Dixon did not have any of Mr. Merritt's property in his possession when he attempted to escape.

Once the police arrived and arrested Dixon, Messrs. Merritt and Wallace inventoried their possessions and discovered that both of their wallets and checkbooks, Mr. Wallace's passport, Mr. Merritt's watch and other small possessions were missing. They retrieved some of the missing property the following day when a woman called who had discovered some of their possessions in the bushes nearby.

II. The State's Use of Peremptory Challenges Did Not Violate the Batson Doctrine

Dixon challenges the use of peremptory challenges by the State against three African-American venire members. He contends that the peremptory strikes violated his right to equal protection as enunciated by Batson v. Kentucky. ¹

A Batson challenge to the use of peremptory strikes requires the following three steps: (1) the opponent of the strikes may establish a prima facie case of racial discrimination evidenced by a pattern of challenges; (2) the proponent of the strikes then has the burden of coming forward with a race-neutral explanation; and (3) if a race-neutral explanation is tendered, the trial court must decide whether the party contesting the strikes has proven racial discrimination. Purkett v. Elem, 514 U.S. 765, ---- - ----, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995) (per curiam ).

In a Batson analysis, the issue whether the prosecutor offered a race-neutral explanation for the use of peremptory challenges is reviewed de novo. See Hernandez v. New York, 500 U.S. 352, 359-60, 111 S.Ct. 1859, 1866-67, 114 L.Ed.2d 395 (1991). Once this Court is satisfied with the race-neutrality of the explanation, the trial court's finding with regard to discriminatory intent will stand unless it was clearly erroneous. Robertson v. State, Del.Supr., 630 A.2d 1084 (1993) (citing Hernandez, 500 U.S. at 369, 111 S.Ct. at 1871-72).

The State conceded, after the third peremptory strike against an African-American venire member, that the defendant had established a prima facie case under Batson. The State then offered explanations for each peremptory challenge. In order to rebut the prima facie case, the prosecutor must provide a "clear and reasonably specific" explanation of "legitimate reasons" for his use of the challenges that are "related to the particular case." Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 1723 n. 20. A "legitimate reason is not a reason that makes sense, but a reason that does not deny equal protection." Purkett, 514 U.S. at ----, 115 S.Ct. at 1771. The reason is race-neutral "[u]nless a discriminatory intent is inherent in the prosecutor's explanation...." Hernandez, 500 U.S. at 360, 111 S.Ct. at 1866.

The prosecutor explained that he struck the first African-American juror because he did not have a juror card from which to assess the juror's suitability. Following what he stated to be his ordinary practice, the prosecutor struck this juror. This was a race-neutral explanation. He struck the other two African-American jurors because they had criminal records. The second juror had been arrested for misdemeanor theft and had been convicted of driving with a suspended license. This juror had also failed to answer a summons. The third juror had been arrested for shoplifting. The prosecutor stated that it was his practice to strike jurors with any but the most insignificant criminal records, such as minor traffic violations. He also stated that he had struck a white juror because of his motor vehicle record. These explanations are also facially race-neutral.

Once the State offers race-neutral explanations for its use of peremptory challenges, the burden shifts to the opponent of the strikes to prove purposeful discrimination. Purkett, 514 U.S. at ----, 115 S.Ct. at 1771. This is the stage at which the trial judge assesses the persuasiveness of the facially race-neutral justification by considering the "totality of the relevant facts," Hernandez, 500 U.S. at 363, 111 S.Ct. at 1868. Since this determination involves pure issues of fact, the trial court should be accorded substantial deference. Batson, 476 U.S. at 98, 106 S.Ct. at 1723-24. Thus, " '[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.' " Hernandez, 500 U.S. at 369, 111 S.Ct. at 1871 (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). Accord Robertson v. State, Del.Supr., 630 A.2d 1084, 1090 (1993).

It was not clearly erroneous for the Superior Court to believe the prosecutor's explanation and not find discriminatory intent. Robertson, 630 A.2d at 1090. The explanations were specific to the individual jurors, and the prosecutor struck a white juror for the same reasons. Id. at 1091. The ultimate composition of the jury--ten whites, two African-Americans and two African-American alternates--can never be dispositive but, in this case, also supports the Superior Court's finding. Id. Finally, the prosecutor ultimately used his peremptory strikes equally to exclude three African-American jurors and three white jurors.

II. The Use of Force in an Attempt to Escape After an Attempted Theft, Without The Victim's Property, Does Not Constitute Robbery

Dixon contends that the State presented insufficient evidence to support the conviction of robbery under the terms of the Delaware statute. He argues that the State failed to present any evidence that he used force to take or retain possession of property.

When reviewing the sufficiency of the evidence, this Court must decide "whether any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the charged offense beyond a reasonable doubt." Morrisey v. State, Del.Supr., 620 A.2d 207, 213 (1993). Since the defendant challenges the interpretation by the Superior Court of the robbery statute, 11 Del.C. §§ 831, 832, this Court will review the decision de novo. Delaware Alcoholic Beverage Wholesalers, Inc. v. Ayers, Del.Supr., 504 A.2d 1077, 1081 (1986); Sandt v. Delaware Solid Waste Auth., Del.Supr., 640 A.2d 1030 (1994).

Dixon was convicted of First Degree Robbery, 11 Del.C. § 832, which applies when a person "commits the crime of robbery in the second degree ..." in combination with certain aggravating factors. The statute proscribing robbery in the second degree provides that:

A person is guilty of robbery in the...