Wierzbicki v. State

• Decision Date: 02 June 1972
• Citation: 293 A.2d 564
• Parties: John WIERZBICKI, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: Supreme Court of Delaware

Page 564

293 A.2d 564

John WIERZBICKI, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

June 2, 1972.

Appeal from the Superior Court in and for New Castle County.

Richard Allen Paul, Asst. Public Defender, Wilmington, for appellant.

John P. Daley, Deputy Atty. Gen., Wilmington, for the State.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, Chief Justice.

This is an appeal from the Superior Court. The appellant was indicted for assault with intent to commit murder, kidnapping, rape and possession of a firearm during the commission of a felony. He was acquitted of the charge of assault with intent to commit murder and found guilty of simple assault. He was found guilty of the other charges, but a recommendation of mercy was returned by the jury upon the verdict of guilty as to rape. The appellant was sentenced on the charge of simple assault to three years; on the charge of kidnapping, to life imprisonment (the mandatory sentence under the statute); on possession of a firearm during the commission of a felony, to five years, and on the charge of rape, with a recommendation of mercy, to three years.

The appellant appeals and seeks a new trial on the charge of kidnapping.

In September, 1970, one month after the victim had separated from her former husband, the appellant and the victim commenced cohabiting together. This relationship continued until May 8, 1971, when the appellant moved out of the victim's apartment.

On the evening of June 1, 1971, the victim went to a tavern with a girlfriend to talk to another male friend of hers. She arrived at the tavern about 10:30 p.m. She left the tavern with her two friends and took her girlfriend home where the three of them stayed for about an hour. She then drove her male friend back to the parking lot of the tavern where she dropped him off at his car. She then proceeded in her 1971 Mustang away from the tavern. After she had traveled about half a block, the defendant came out of the trunk of her Mustang and told her to pull over. Apparently, in this type of car there is a means of exit from the trunk into the passenger section.

The appellant had a pistol in his hand when he ordered her to pull over. She pulled over to the side of the road. After she had moved from behind the wheel to the passenger side, the appellant got into the driver's seat. He pointed the gun at her head and told her he was going to kill her.

Thereafter, for about an hour, the appellant drove the victim's car, with her in it, to various locations in New Castle County, winding up in an area south of New Castle called Bellanca Beach. During this time, according to the victim's testimony, he kept the pistol in his left hand. She testified that she was frightened. At Bellanca Beach he forced her to undress and then had sexual intercourse with her.

Ultimately, after she had resumed her clothing, he shot her through the chest and then immediately bundled her into the car and took her to a hospital where she was treated and eventually recovered.

At trial, Appellant's counsel announced that he would argue the doctrine of 'diminished responsibility' with respect to the element of intent on the charge of assault with intent to commit murder, and would produce medical testimony to support this theory. Over objection by the State, the Trial Judge agreed to accept the testimony on the ground that every defendant had the right to show that his act was prompted by a type of passion which would reduce murder to manslaughter.

The appellant called as defense witnesses a psychiatrist and a clinical psychologist, both of whom testified substantially to the same effect that the appellant, when he was in a situation of stress,...