Weber v. State

971 A.2d 135

Paul E. WEBER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 74,2008.

Supreme Court of Delaware.

Submitted: January 21, 2009.

Decided: April 22, 2009.

Reargument Denied May 1, 2009.

Court Below: Superior Court of the State of Delaware in and for New Castle County, ID No. 0408022175.

Upon appeal from the Superior Court.

AFFIRM

in part,

REVERSE

in part and

REMAND

for a new trial.

Leo John Ramunno, Wilmington, for appellant.

Kevin M. Carroll, Department of Justice, Wilmington, for appellee.

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices constituting the Court en banc.

STEELE, Chief Justice:

Paul E. Weber appeals his Superior Court convictions of Attempted First Degree Robbery and Attempted First Degree Carjacking. Based on Weber's Attempted Robbery conviction, the trial judge declared Weber a habitual offender and sentenced him to 25 years at Level V. For the conviction on Attempted Carjacking, the trial judge sentenced Weber to 3 years at Level V, suspended after 2 years, followed by Level IV Home Confinement. On appeal, Weber claims that the trial judge violated his right to a fair trial by: (1) denying his motion for a judgment of acquittal; (2) denying his motion for a continuance; and (3) sentencing him as a habitual offender. Weber also argues that he did not receive a speedy trial. Because the trial judge erred by failing to instruct the jury on Offensive Touching as a lesser included offense of First Degree Robbery we must reverse that conviction and remand for a new trial. We find no merit to the remainder of Weber's arguments and affirm Weber's conviction of Attempted First Degree Carjacking.

FACT AND PROCEDURAL BACKGROUND

On August 18, 2004, at approximately 10 p.m., Weber approached Frederick Naspo at the Shell gas station on the corner of Duncan Road and Kirkwood Highway in Wilmington, Delaware. Seeing an unlit cigarette in Weber's mouth, Naspo told him: "I hope you're not going to smoke that because I'm going to pump gas." The parties dispute what, if anything, Weber said in response. Naspo claims that Weber attempted to wrestle away Naspo's car keys and to steal his car. After a brief struggle with the seventy four year old Naspo, Weber fled in the direction of Duncan Road. Naspo sought shelter in the gas station and the gas station attendant called the police.

Delaware State Police Sergeant Mark Hawk responded to the scene. Naspo described his assailant as "a white male, approximately 35 years old, 5'6", 5'7" in height, short brown hair, no facial hair, approximately 160 pounds. . . . The person was wearing jean shorts and a blue t-shirt." As Hawk interviewed Naspo, New Castle County Police Officer Bernard Alimenti responded to a complaint about a person knocking on doors in the nearby Dunlinden Acres development and asking for a ride to an unknown destination.¹ Patrolling the area, Alimenti encountered Weber, who was wearing blue jeans and a large blue t-shirt. Alimenti stopped and detained Weber outside of a Sleepy's mattress store. Hawk brought Naspo to the Sleepy's store to determine whether Naspo could identify Weber as his assailant. Naspo did not identify Weber as his attacker, and the officers released Weber.

Because the gas station attendant did not have access to the station's video surveillance system, Hawk returned the next day to view the surveillance tape. Upon reviewing the tape, Hawk independently identified Weber as Naspo's assailant. He then obtained a warrant to arrest Weber. Hawk went to Weber's home to execute that warrant and found Weber wearing only his underwear. Hawk "asked permission [from Weber] to go get clothing for him ... and [Weber] told [Hawk] to go to his room to get his clothing." Hawk went to Weber's bedroom and picked up the first clothing items that he saw lying on the floor, "a pair of long jeans and an oversized blue t-shirt."

A grand jury indicted Weber on charges of Attempted First Degree Robbery and Attempted First Degree Carjacking. A New Castle County jury convicted Weber on both charges, and the State moved to declare Weber a habitual offender in relation to both convictions. At sentencing, the State orally amended its petition and requested habitual offender sentencing only for the Attempted Robbery conviction. The trial judge granted that petition and sentenced Weber as a habitual offender to 25 years at Level V for the Attempted Robbery conviction; and for the Attempted Carjacking conviction, to 3 years at Level V, suspended after 2 years. This appeal followed. A panel of three justices reviewed this matter on the briefs and requested supplemental briefing on two issues.² Upon consideration of those supplemental briefs, the panel recommended oral argument and determination by the Court en Banc.

DISCUSSION

I. Weber's Right to a Fair Trial.

Weber first claims that "the conduct, actions and rulings" of the trial judge violated his right to a fair trial. Specifically, Weber argues that the trial judge: denied his request for an instruction on a lesser included offense; engaged in ex parte communications with the jury on several occasions; made improper statements to him and to his counsel; and allowed the jury access to the prosecutor's laptop. We review de novo claims alleging the infringement of a constitutionally protected right.³

A. The denial of Weber's request for a lesser included offense instruction.

Weber first claims that the trial judge erred by denying his request for a jury instruction on Offensive Touching⁴ as a lesser included offense of First Degree Robbery⁵. The trial judge concluded that Offensive Touching is not a lesser included offense of First Degree Robbery, and that in any event, there was no rational basis to convict Weber on Offensive Touching. Because the trial judge did not give the requested instruction, we review Weber's claim de novo to determine: (i) whether the instruction was available as a matter of law; and, if so, (ii) whether the evidence presented at trial supported a conviction on the lesser included offense.⁶

As we noted in Herring v. State, "Appendix B of the 1973 Delaware Criminal Code with Commentary sets forth the following as illustrative of included offenses of Robbery in the First Degree . . . § 601 Offensive Touching. . . ."⁷ Therefore, the trial judge erred by concluding that Offensive Touching is not a lesser included offense of First Degree Robbery.

The trial judge, however, was "not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense."⁸ This standard applies even where the defendant denies any involvement in the charged offense.⁹ "A defendant is entitled to an instruction on a lesser included offense if there is any evidence fairly tending to bear upon the lesser included offense, however weak that evidence may be."¹⁰

At trial, the State argued that the record did not support a conviction on Offensive Touching because that offense "would require the victim to have testified that it caused some annoyance or alarm to him." The trial judge agreed with the State's interpretation of the record and the law.

We conclude, however, that a conviction for Offensive Touching does not require proof that the victim actually felt offended or alarmed. In relevant part, 11 Del. C. § 601 defines Offensive Touching as a person intentionally "touch[ing] another person either with a member of his or her body or with any instrument . . . knowing that the person is thereby likely to cause offense or alarm to such other person." This definition focuses on the actor's intent and knowledge before touching another person, not on that other person's resultant mental state.

After carefully reviewing the record, we find sufficient evidence to support an acquittal of the First Degree Robbery charge and a conviction of the lesser included offense of Offensive Touching. Although Weber primarily argued at trial that he was not the person identified on the surveillance video accosting Naspo, Weber also questioned the State's evidence that the person in the video actually attempted to steal Naspo's car. Weber's defense counsel attempted to impeach Naspo by demonstrating that his trial testimony did not entirely match his original statement to the police.¹¹ The surveillance video shows a brief struggle between Naspo and another man but does not conclusively establish that the man attempted to steal Naspo's car. If the jury did not find Naspo's testimony entirely credible, they could have concluded that the State failed to prove beyond a reasonable doubt that Weber attempted first degree robbery.¹² Therefore, we find that the record supports Weber's request for a lesser included offense instruction on Offensive Touching.

"Lesser included offense instructions `provide the jury with a less dramatic alternative than the sharp choice between conviction of the offense charged and acquittal[,]'"¹³ and "ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard"¹⁴. The trial judge here failed to accord Weber this full benefit of the reasonable doubt standard by refusing Weber's request for a lesser included offense instruction on Offensive Touching.

A trial judge's "failure to properly instruct the jury regarding a lesser offense is not reversible error per se."¹⁵ For example, "in cases involving offenses on a ladder, if the trial court wrongfully refuses to charge the offense at the bottom rung, that error is harmless provided the jury returns a guilty verdict for an offense higher up rather than for an intermediate offense which was also charged."¹⁶ This exception does not apply to the case at bar because the trial judge only instructed the jury on the highest offense (First Degree Robbery).

Nor can the fact that the jury...