Johnson v. State
| Decision Date | 16 April 1998 |
| Docket Number | 1997,No. 131,131 |
| Citation | 711 A.2d 18 |
| Parties | Robert B. JOHNSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted: |
| Court | United States State Supreme Court of Delaware |
Upon appeal from the Superior Court. REVERSED and REMANDED.
Court Below--Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. IN96-06-1155 and IN96-06-1156.
Kathleen Jennings, Oberly & Jennings, P.A., Wilmington, for appellant.
John Williams, Deputy Attorney General, Dover, for appellee.
Before VEASEY, C.J., HOLLAND and HARTNETT, JJ.
Following a jury trial in the Superior Court, the defendant-appellant, Robert B. Johnson ("Johnson"), was convicted of Assault in the First Degree and Possession of a Deadly Weapon During the Commission of a Felony. Johnson was sentenced to six years incarceration for the assault conviction and ten years incarceration for the deadly weapon conviction. The sentences were consecutive.
Johnson has raised four contentions in this direct appeal. First, he argues that the Superior Court erred by amending the deadly weapon count in the grand jury indictment. Second, Johnson submits that the Superior Court's instruction to the jury on the issue of accomplice liability was incorrect, as a matter of law. Third, Johnson argues that the Superior Court erred, as a matter of law, in its instructions to the jury concerning the lesser-included offenses of Assault in the First Degree. Fourth, Johnson contends that certain remarks made during the prosecutor's closing argument were not supported by the evidence and constituted plain error.
This Court has concluded that Johnson's first two contentions are meritorious. Accordingly, both judgments of conviction must be reversed. Because these proceedings will be the subject of a new trial, we have also addressed Johnson's remaining two arguments.
On the night of October 11, 1993, Johnson, accompanied by two male and two female friends, went to a bar in New Castle, Delaware. At the bar, an argument occurred between Johnson and another patron, Edward Woodward ("Woodward"). A fight broke out and Woodward sustained multiple facial injuries.
According to Angel Bass ("Bass"), the bartender working that evening, Johnson punched Woodward first. Johnson's two male friends then joined Johnson in assaulting Woodward. Bass identified Johnson at trial as the main perpetrator of the assault. Bass testified that Woodward was punched, kicked and hit with chairs and beer bottles by Johnson and his two male friends. Bass also testified that Johnson threw a metal table down on Woodward's face, after Woodward had been knocked to the floor.
Two other bar patrons that evening were Daniel E. Zeitlow ("Zeitlow") and Herman Lopez ("Lopez"). Their testimony at trial was consistent with Bass' description of the altercation between Johnson, his two male friends, and Woodward. Both Zeitlow and Lopez confirmed that the three men attacked Woodward with chairs. Lopez testified that he saw one of the three assailants pick up a metal table and drop it on Woodward. Lopez also testified that, during the assault on Woodward, some female patrons were "cheering and jumping ."
When Bass called the police, Johnson and his friends left the bar. Police Detective Mark MacMicking of the Delaware State Police, arrived at the bar shortly after 12:24 a.m. on October 12, 1993. Detective MacMicking found Woodward lying on the floor in a pool of blood. There were broken glass bottles and chairs on the floor around Woodward.
As a result of the fight, Woodward's left cheek bone and his nasal bones were fractured, his upper jaw was fractured on both sides, and there was a two-inch laceration over his nose. Dr. Lawrence Giordano, an oral maxillofacial surgeon, performed reconstructive surgery on Woodward's face on October 14, 1993. 1 According to Dr. Giordano, the scarring from the surgery might become "almost invisible," except for the scar over the bridge of Woodward's nose which would probably be permanent.
Defense witnesses Kathy Cianci and Romelia Gutierrez, who had accompanied Johnson to the bar, both testified that they did not see Johnson strike anyone with a bottle, chair, or table. Both of these defense witnesses testified that Woodward started the fight by striking Johnson first. In his defense, Johnson also introduced Woodward's medical records into evidence. According to those records, Woodward was combative at the hospital and tested positively for having phencyclidine and cocaine in his system.
Neither Woodward nor Johnson testified at the Superior Court trial. Woodward was not present at trial and could not be located.
Johnson was originally indicted by the grand jury in 1995 and charged with Assault in the First Degree. The single count indictment alleged that Johnson possessed a deadly weapon or dangerous instrument during the assault. Those items were identified as "glass bottles and chairs."
On June 24, 1996, Johnson was reindicted by the grand jury. The reindictment contained two charges. The first count was Assault in the First Degree. 2 It was modified from the original charge to read "glass bottle and/or a chair." The second count in the new indictment charged Johnson with Possession of a Deadly Weapon During the Commission of a Felony. 3 The deadly weapon was described as "a chair."
After the State had completed its case-in-chief, the Superior Court sua sponte raised an issue regarding the deadly weapon charge. The trial judge noted that most of the State's evidence at trial had demonstrated that Johnson possessed a metal table during the assault upon Woodward. 4 The State moved to amend the deadly weapon count in the grand jury's indictment to include the table. Over the objection of Johnson's trial attorney, the Superior Court permitted the weapon count in the indictment to be amended to describe the deadly weapon allegedly possessed by Johnson to be a chair "and/or a table."
At the close of all the evidence, the jury was instructed that it could find Johnson guilty of the deadly weapon count if it unanimously found that Johnson possessed a chair, or if it unanimously found that Johnson possessed a table, during the assault on Woodward. The jury found Johnson guilty of the deadly weapon offense. The jury's verdict did not specify which "deadly weapon" the jury found Johnson had used during the assault. Consequently, the record does not reflect whether the trial jury found Johnson guilty as charged in the grand jury's indictment of possessing a chair, or guilty of possessing a table pursuant to the indictment as amended by the Superior Court.
Johnson argues that the instrumentality described in the weapon count of the grand jury indictment is an essential and material element of the alleged crime. Therefore, Johnson submits that the addition of the term "and/or a table" constituted a substantive amendment by the Superior Court. Accordingly, Johnson contends that the Superior Court violated his right to be proceeded against in a felony prosecution only upon an indictment by a grand jury. 5
The institution of the grand jury has a venerable history in England. For centuries, when conflicts arose between the powers of the English monarchs and the rights of their subjects, the grand jury was a barrier against persecution in the sovereign's name. Over time, the grand jury "came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded prosecutions of the Crown." 6
The English grand jury system has been an integral part of America's jurisprudence ab initio. 7 The Fifth Amendment to the United States Constitution provides that federal prosecutions for serious crimes must be initiated by a grand jury indictment. 8 The perpetuation of the grand jury's historic function in the United States Constitution "as the sole method for preferring charges in serious [federal] criminal cases shows the higher place it held as an instrument of justice." 9 Like its English progenitor, the Fifth Amendment grand jury provision was intended to operate as an independent and objective method for commencing a serious criminal proceeding. 10
When the federal Bill of Rights was originally adopted in 1791, those first ten amendments to the United States Constitution were only a protection against action by the federal government. 11 As a consequence of the adoption of the Fourteenth Amendment to the United States Constitution, many of the guarantees found in the federal Bill of Rights have been deemed incorporated by the Due Process Clause to provide protection against infringement by state action. 12 The United States Supreme Court has held, for example, that the right to trial by jury in a criminal proceeding in state courts is guaranteed to defendants by the Fourteenth Amendment. 13 Conversely, the Seventh Amendment guarantee of jury trials in a civil proceeding has not been held to be binding upon the states by incorporation through the Due Process Clause of the Fourteenth Amendment. 14
The Fifth Amendment provisions relating to the grand jury have always been binding upon the federal courts. The United States Supreme Court has never held, however, that the Fifth Amendment concepts of a "grand jury" are applicable to the states by virtue of the Fourteenth Amendment incorporation doctrine. 15 In an opinion released only five days after Johnson's case was argued before this Court, the United States Supreme Court reiterated its 1884 holding in Hurtado v. California, noting that the "Fifth Amendment requires the Federal Government to use a grand jury to initiate a prosecution and 22 states adopt a similar rule as a matter of state law." 16
Therefore, Johnson's constitutional...
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