State v. Phillips, I.D. No. 0201017168 (Del. Super 4/21/2004)

• Decision Date: 21 April 2004
• Docket Number: I.D. No. 0201017168.,Cr. A. No. IN02-02-0822.
• Parties: STATE OF DELAWARE v. TYRONE A. PHILLIPS, Defendant
• Court: Delaware Superior Court

Page 1

STATE OF DELAWARE v. TYRONE A. PHILLIPS, Defendant

I.D. No. 0201017168.

Cr. A. No. IN02-02-0822.

Superior Court of Delaware for New Castle County.

Submitted: April 14, 2004.

Decided: April 21, 2004.

UPON DEFENDANT'S MOTION IN LIMINE FOR BILL OF PARTICULARS DENIED.

Donald R. Roberts, Esquire, Maria P. Knoll, Esquire, Deputy Attorneys General, New Castle County, State of Delaware, Attorneys for the State of Delaware.

Jennifer-Kate Aaronson, Esquire, Potter, Carmine, Leonard & Aaronson, P.A., Wilmington, Delaware, Attorney for Defendant.

ORDER

ABLEMAN, JUDGE.

This 21st day of April, 2004, upon consideration of the defendant's Motion In Limine for Bill of Particulars, pursuant to Superior Court Criminal Procedure Rule 7(f), and the record in this case, it appears to this Court that:

1) On March 11, 2002, the movant, Tyrone A. Phillips ("Defendant"), was indicted by a Grand Jury and charged with Murder by Abuse or Neglect in the First Degree in violation of 11 Del. C. § 634. Defendant entered a plea of guilty to the indicted charge on November 26, 2002, only one week prior to the scheduled trial. The guilty plea was in connection with the death of Cynthia Ferris, a twoyear old child. On December 30, 2002, before the Court was scheduled to sentence the Defendant, he wrote a letter to the Court expressing his desire to withdraw his guilty plea.

On April 14, 2003, Defendant filed a Motion for Recusal, which the Court denied on July 3, 2003. A few days later, on July 11, 2003, Defendant filed his Motion for Withdrawal of Guilty Plea. On January 16, 2004, the Court held an evidentiary hearing on Defendant's motion to withdraw his guilty plea. At the hearing, various evidence was presented including, but not limited to, a recorded videotape of the Defendant being questioned at the police station, testimony of Defendant's former counsel regarding his representation of the Defendant at the time he entered his plea, and testimony by the Defendant. On this same date based on the evidence presented at the hearing, the Court granted Defendant's motion to withdraw his guilty plea, without objection by the State.

2) Defendant filed the instant motion for a bill of particulars on April 5, 2004. The State filed its response in opposition to Defendant's motion on April 6, 2004, and Defendant then filed a reply to the State's opposition on April 13, 2004. In the motion, Defendant argues that he is "without sufficient knowledge of the facts concerning the alleged criminal act to enable him to prepare his defense." Specifically, the indictment charged him accordingly: TYRONE A. PHILLIPS, on or about the 23^rd day of January 2002, in the County of New Castle, State of Delaware, did recklessly cause the death of Victoria Ferris, a child 2½ years of age, through an act of abuse and/or neglect of said child. Defendant relies on the holdings in Rosa¹ and McFarlane² for the proposition that, a "motion for bill of particulars should be granted whenever the indictment fails to provide factual or legal information which significantly impairs a defendant's ability to prepare his defense, or is likely to lead to prejudicial surprise at trial."

Pursuant to the instant motion, the Defendant seeks the following information: 1) the exact time and date of the alleged criminal act of abuse charged in the indictment; 2) the exact manner by which Defendant allegedly abused Victoria Ferris; 3) what means are referred to as "abuse" in the indictment; 4) detailed description of any force used in the alleged abuse; 5) the precise injuries alleged to have been sustained including the exact parts of the body injured; 6) factual statement showing the manner, mode or means by which the Defendant is alleged to have caused, affected or brought about the death of Victoria Ferris; 7) names and addresses of persons who participated, saw, or otherwise are qualified to testify in court about the commission of the alleged acts of abuse; 8) the exact manner by which the Defendant allegedly neglected Victoria Ferris; 9) names and addresses of persona [sic] who participated, saw or otherwise are qualified to testify about the alleged acts of neglect; and 9) factual statement outlining th[e] manner, mode or means by which the Defendant is alleged to have neglected Victoria Ferris.

3) In response to Defendant's motion, the State sets forth both procedural and substantive defenses to Defendant's requests. First, the State asserts that, pursuant to Superior Court Criminal Procedure Rule 7(f), Defendant's motion is untimely, and the Defendant has not sought leave of court to file out of time. Second, the State argues that the information sought by the Defendant is "either unknown, already provided, otherwise available, not an element of the offense and, therefore, not properly demanded in a bill of particulars, defined by statute, and/or deals with the State's theory of the case." Moreover, the State asserts that since the inception of the case, it has maintained an "open file policy," supplying defense counsel "with any and all information requested which is not of a confidential nature." Specifically, it is the State's contention that in the case sub judice, the Court should deny Defendant's motion because ample information and documentation has already been furnished and/or is available to put the Defendant on notice of what he needs to defend. Precisely, the information sought by the Defendant can be adduced or discerned from the: 1) arrest warrant; 2) affidavit of probable cause; 3) transcripts of the preliminary hearing; 4) transcripts of the Defendant's earlier admission to the offense when he entered a guilty plea; and 5) transcripts of the Defendant's Motion to Withdraw a Guilty Plea.

4) In rebuttal to the State's opposition to Defendant's motion, Defendant contends that his demand for a bill of particulars is not untimely. Defense counsel suggests that this case is marked by a "unique procedural posture." Defendant withdrew his guilty plea, the Court accepted Defendant's withdrawal of his guilty plea pursuant to the Court's Order of January 16, 2004, and, at the January 29, 2004 office conference attended by counsel, the State, and the Court, the Court entered an order providing a cut-off date for all pretrial motions of April 30, 2004. In addition, Defendant re-emphasizes his contention that the indictment lacks a "plain, concise and definite written statement of the essential facts comprising the charged offense." Defendant maintains that the indictment "alleges no facts" and is "totally void of any factual assertions regarding the Defendant's conduct."

5) The Delaware Supreme Court has defined the purpose of an indictment as two-fold: (1) it must put the defendant on notice of what he is to defend; and (2) it must provide a shield against subsequent prosecution for the same offense, i.e., against the possibility of double jeopardy.³ If an indictment is drafted with such particularity as to afford the defendant the ability to reasonably know the elements or essential facts of the charges against him, so that he may have an adequate opportunity to prepare a defense, it is deemed sufficient.⁴ The objective of a bill of particulars is to provide supplemental information, serving to protect the defendant against unfair surprises at trial and to preclude a second prosecution for an inadequately described offense.⁵ Basically, "[t]he bill of particulars is a discovery device that is used to request additional relevant information. A defendant seeks a bill of particulars in order to `fill any gap between the facts disclosed by the indictment and that `set of facts' which will permit him the opportunity of preparation [of a defense].'"⁶ While the significance of a bill of particulars, as an instrument that is designed to clarify the allegations posed against a defendant, remains paramount in the overall consideration; it is equally critical to recognize that a bill of particulars is not meant to compel the State to disclose its theory of the case or evidentiary information.⁷ Albeit, while the purpose of an indictment is to inform the accused of the charges brought against him, its validity is not governed by technical considerations, but by practical ones.⁸ Further, and foremost, "[a] bill of particulars may not serve as a discovery device and defendants may not use a bill of particulars to circumvent the rules governing discovery."⁹

That being said, it is within the Court's sound discretion to grant a motion for a bill of particulars.¹⁰ The trial judge is accorded broad discretion in weighing the interests of both the defendant and the State.¹¹ In particular, the Court performs a critical balancing test and "weighs the competing interests of the defendant who seeks additional information for purposes of preparing a defense versus the State's interests in protecting witnesses or not `commit[ting] itself to a specific version of the facts before it is in a position to do so.'"¹² In Banther, this Court sought guidance on this issue from the Third Circuit Court of Appeals' interpretation of Federal Rule of Criminal Procedure 7(f), identical to Delaware's Superior Court Criminal Rule of Procedure 7(f), as allowing trial judges to:

[E]xercise broad discretion in order to strike a prudent balance between the defendant's legitimate interest in securing information concerning the government's case and numerous countervailing considerations ranging from personal security of witnesses to the unfairness that can result from forcing the government to commit itself to a specific version of the facts before it is in a position to do so.¹³

6) In the case at bar, the Court finds that, technically, Defendant's motion for a bill of particulars is untimely. Despite the Court's January 16, 2004 Order allowing the Defendant to withdraw his guilty plea, Rule 7(f) instructs that a motion for a bill of particulars may be made before the arraignment or within ten days ...