State v. Cox

• Decision Date: 23 December 2003
• Docket Number: No. 210,2003.,210,2003.
• Citation: State v. Cox, 851 A.2d 1269 (Del. 2003)
• Parties: STATE of Delaware, Plaintiff Below, Appellant, v. Vincent COX, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

851 A.2d 1269

STATE of Delaware, Plaintiff Below, Appellant, v.Vincent COX, Defendant Below, Appellee.

No. 210,2003.

Supreme Court of Delaware.

Submitted: September 9, 2003.

Decided: December 23, 2003.

Paul R. Wallace, Department of Justice, Wilmington, DE, for appellant.

Bernard J. O'Donnell, Jr., Public Defender, Wilmington, DE, for appellee.

Before HOLLAND, BERGER and JACOBS, Justices.

HOLLAND, Justice:

The defendant-appellee, Vincent Cox, was acquitted, following a jury trial in the Superior Court.The State has applied for leave to appeal, pursuant to Del.Code Ann. tit. 10, § 9903, from an adverse ruling by the Superior Court that was made during the course of Cox's criminal trial.The purpose of section 9903"is to afford to the State the opportunity to have reviewed by this Court adverse rulings of law made by [trial] courts — not for the purpose of having an appellate decision in the specific case in which the question arose, but for the purpose of having the question finally decided for future cases — all with due regard for the double jeopardy guaranty."¹

This Court granted the State's request to appeal.The Public Defender was asked to file an answering brief.The question presented to this Court is: if there exists a rational basis in the evidence for a lesser included offense instruction, may a trial judge deny the State's request for such an instruction to the jury, if that request is objected to by the defense?We have concluded that any party is entitled to such an instruction, if requested, provided a rational basis exists in the evidence to acquit the defendant of the charged offense and to support a conviction for a lesser-included offense.

Facts

On July 28, 2002, at approximately 2:30 a.m., three brothers, Pedro, Juan and Santos Lopez were drinking in the Lafayette Apartment Complex parking lot when they were approached by two African-American males.The shorter of the two males asked Juan if he was interested in purchasing marijuana.When Juan declined, the taller male, later identified as Vincent Cox, demanded money, while the shorter male, never identified, struck Juan in the face with a handgun.

In defense of his brother, Pedro threw a beer can at the unknown assailant.The shorter man tossed the gun he was carrying to Cox, who shot Pedro once in the abdominal area.Santos then threw a can of beer at Cox, who proceeded to shoot Santos in the foot.Both brothers survived their wounds.

Police subsequently identified Cox as the shooter and arrested him.Cox was indicted in the Superior Court for Attempted Murder in the First Degree and related assault, robbery, weapons and conspiracy charges.Trial began on March 11, 2003.

At a pre-trial conference, the State first informed the trial court that it would be seeking an instruction on the lesser-included offense of Assault in the First Degree.At the end of the State's presentation of its case, the prosecutrix again requested that the jury be instructed on the lesser-included offense of Assault in the First Degree.Cox objected to an instruction for the lesser-included offense.

Superior Court Ruling

The Superior Court found that there was a rational basis in the evidence to support of the State's request for an instruction on the lesser-included offense of Assault in the First Degree.Specifically, the trial judge stated:

First I'll say, I think for everyday use, there is a rational basis in the evidence for the lesser-included offense of Assault First Degree.

... the evidence clearly supports the charge and that's what I have right here.

No Delaware case to my knowledge has spoken ... to this issue, i.e., the granting of a lesser-included offense request of the State over defense objection [when there is] a rational basis in the evidence.

If the defense requested a lesser included offense [with] the rational basis in the evidence I would give that instruction.

The trial judge then ruled that he would not give the lesser-included offense instruction over the defendant's objection.Accordingly, even though the trial judge determined that there was a rational basis in the evidence to acquit Cox of the greater charged offense and to convict Cox of the lesser-included offense requested by the State, the trial judge held that the defendant's objection entitled the defendant to invoke the "all-or-nothing doctrine," i.e., to insist that the jury only be instructed on the charged offense and not any lesser-included offenses.

Common Law History Lesser-Included Instructions

"At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged."²This practice offered the jury a choice other than a guilty verdict on the offense charged or acquittal-often described as "all or nothing."It has long been recognized that jury instructions on lesser-included offenses can be beneficial to a criminal defendant by "providing the jury with the `third' option of convicting on a lesser included offense [thereby] ensur[ing] that the jury will accord the defendant the full benefit of the reasonable-doubt standard."³

A lesser-included offense instruction, however, may also be beneficial to the State.Indeed, the common law rule originally developed as "an aid to the prosecution in cases in which [its evidence] failed to establish some element of the crime charged."⁴From these common law origins, the principle that one indicted for a greater offense can properly be convicted of an uncharged lesser-included offense is now well established.⁵

The purpose and rationale for this almost universal practice of granting requests to give lesser-included offense instructions, when there is a rational basis in the evidence to support them, has been explained as follows:

The doctrine is a valuable tool for defendant, prosecutor, and society.From a defendant's point of view, it provides the jury with an alternative to a guilty verdict on the greater offense.From the prosecutor's viewpoint, a defendant may not go free if the evidence fails to prove an element essential to a finding of guilt on the greater offense.Society may receive a benefit because, in the latter situation, courts may release fewer defendants acquitted of the greater offense.In addition, the punishment society inflicts on a criminal may conform more accurately to the crime actually committed if a verdict on a lesser included offense is permissible.⁶

Jurisdictional Approaches Lesser-Included Instructions

The approaches applied by various courts in determining whether a lesser-included offense instruction should be presented to a jury have been divided into three categories: trial integrity jurisdictions, party autonomy jurisdictions, and hybrid jurisdictions.⁷Courts in the first category require an instruction on any lesser-included offense supported by the evidence, even if neither party requests one.⁸In such jurisdictions, "the key question is whether trial process is compromised by omission of the lesser-included instruction."⁹The rationale for this "trial integrity approach"¹⁰, is that it is the judge's role to "fully instruct the jury on the law applicable to each particular case."¹¹

In trial integrity jurisdictions, if lesser-included instructions are warranted by the evidence, the trial judges must sua sponte give such an instruction.This analytical model does not permit the parties to adopt an all-or-nothing trial strategy.Very few states have adopted a pure trial integrity `model because of the historical deference that courts give to parties to develop their own trial strategy within the American adversarial process.

Accordingly, many courts in other jurisdictions apply what is referred to as the "party autonomy" approach.¹²These jurisdictions have concluded that the trial judge should not interfere with the trial strategies of the parties.Consequently, in these jurisdictions, trial judges withhold deciding the issue of whether there is a rational basis in the evidence to charge the jury on a lesser-included offense unless requested to do so by a party.¹³Pursuant to the party autonomy approach, the burden is initially on the parties rather than the trial judge to determine whether a lesser-included offense instruction is to be considered as an option for the jury.

A third approach takes the middle ground.In these "hybrid" jurisdictions,¹⁴ the trial judge has the discretion to instruct sua sponte on a lesser-included offense.¹⁵This approach attempts to remove the "all or nothing" trial strategy present in "party autonomy" jurisdictions, while still affording the trial judge the discretion over whether to give a lesser-included offense instruction that is not present in "trial integrity" jurisdictions.¹⁶The discretionary authority granted to trial judges in these hybrid jurisdictions also allows for a trial judge to withhold the giving of a lesser-included offense instruction, even though there is a substantial basis in the evidence, in the absence of a request for such an instruction by one of the parties.Not surprisingly, there appears to be "significant conflict" in these jurisdictions concerning the scope and application of such discretion.¹⁷

Delaware LawParty Autonomy Approach

In Chao v. State,this Court explained that Delaware is a "party autonomy" jurisdiction.¹⁸We continue to be persuaded by the rationale of the many other jurisdiction that also follow the "party autonomy" approach: "[t]he better view ... is that the trial court ordinarily should not give a jury instruction on an uncharged lesser included offense where neither side requests or affirmatively agrees to such instruction."¹⁹As the United States Court of Appeals for the District of Columbia Circuit explained:

In general the trial judge should withhold charging on lesser included offense unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in

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