Opinion
ID No. 0312000991.
Submitted: June 24, 2004.
Decided: September 14, 2004.
UPON DEFENDANT'S MOTION FOR NEW TRIAL, DENIED.
ORDER
Upon review of Eric A. Grant's ("Defendant") Motion for New Trial and the record, it appears to the Court that:
1. On July 9, 2004, Defendant was convicted of Carrying Concealed a Deadly Weapon. During trial, the evidence demonstrated that on November 12, 2003, Defendant borrowed a Smith Wesson semiautomatic pistol from a friend. The State presented evidence that Defendant concealed a handgun on his person while walking from the friend's home to a car. After Defendant entered the car, he placed the gun on the rear floor area. The Court instructed the jury that such placement may constitute concealing the weapon as defined by law. Defendant conceded that he was in possession of a concealed deadly weapon while in a night club called Fantasia.
2. After presentation of defense evidence and prior to closing arguments, the State requested that the jury be instructed on accomplice liability. The Court concluded that Defendant, under the circumstances of the case and the defense presented, could be found guilty as an accomplice or as a principal. The jury returned a verdict of guilty.
See Dixon v. State, 673 A.2d 1220, 1228 (Del. 1996).
3. On June 14, 2004, pursuant to Superior Court Criminal Rule 33, Defendant filed a Motion For New Trial, asserting that a specific unanimity instruction should have been given by the Court because there were multiple, distinct and wholly unrelated acts upon which the jury could have found Defendant guilty.
4. Defendant contends that there were two distinct allegations of criminal activity on the part of Defendant, justifying an instruction of accomplice liability and principal liability, because each of the alleged crimes were discrete and independent of one another. Defendant argues that the magnitude and nature of this error satisfies the doctrine of "plain error" and mandates a reversal and awarding of a new trial.
Ayers v. State, 844 A.2d 305, 309 (Del. 2004) ( citing Liu v. State, 628 A.2d 1376, 1386 (Del. 1993)); Pope v. State, 632 A.2d 73, 79 (Del. 1993); Probst v. State, 547 A.2d 114, 122 (Del. 1988).
Hassan-El v. State, 841 A.2d 307, 2004 WL 220322 (Del.) at *2; Swann v. State, 820 A.2d 342 (Del. 2003); Lawrence v. State, 614 A.2d 1275, 1992 WL 279114 (Del.) at *1; Collins v. State Farm Mut. Auto Ins. Co., 830 A.2d 1241, 1244 (Del.Super. 2003).
5. A specific unanimity instruction was not requested by Defendant during the prayer conference, at the time of closing arguments, or before the jury began deliberation. Defendant, however, agreed to the general unanimity pattern jury instruction.
See Jury Instructions, State v. Grant, ID No. 0104015882 (Del.Super. June 9, 2004) at p. 13A; Fountain v. State, 275 A.2d 251, 251-52 (Del. 1971); see also Dixon v. State, 673 A.2d 1220, 1228 (Del. 1996).
6. A specific unanimity instruction is required where criminal liability could be attributed to a defendant from two acts that are so wholly separate and distinct that a court could not be satisfied that the jurors were in substantial agreement as to the defendant's actions constituting commission of a crime. The pertinent question is whether there a "genuine possibility of jury confusion or that a conviction may occur as a result of different jurors concluding that the defendant committed different acts.
Probst v. State, 547 A.2d 114, 121 (Del. 1988).
7. The possession and control of the gun by Defendant or his accomplice on the night in question are not separate acts but, as demonstrated by the evidence, a continuous course of conduct in which Defendant was sometimes the more active participant. The evidence demonstrated that the weapon was carried to various places and was sometimes in the more active control of Defendant and at other times his friend. A new chargeable offense did not occur each time the Defendant and his friends changed locales while driving in the car or passing off the gun. Defendant's course of conduct was one cognizable incident constituting a continuous act of illegal firearms possession under applicable Delaware law. Thus, there was no error in failing to give a specific unanimity instruction, and Defendant's request for new trial must be denied.
Probst, 547 A.2d at 122.
8. The failure to object at trial usually constitutes a waiver of a defendant's right to raise the issue on appeal unless the error is plain. Under a plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process. This Court must determine whether the lack of a specific unanimity instruction to the jury was erroneous as a matter of law and, if so, whether the error so affected Defendant's substantial rights that the failure to object at trial is excused.
See Probst v. State, 547 A.2d 114, 119 (Del. 1988); Super. Ct. Crim. R. 30, 52(b).
Dutton v. State, 452 A.2d 127, 146 (Del. 1982).
Super. Ct. R. 8; Probst v. State, 547 A.2d at 119.
9. In reviewing Defendant's clear failure to timely object to the instruction, and applying the plain error standard of review, the Court is satisfied that, in the instant case, the lack of a specific unanimity instruction was not plain error. Defendant's separate incidents of conduct were natural consequences flowing from and intended by Defendant's borrowing the gun. There is credible evidence that the gun was Defendant's responsibility and was in his control throughout the events of the evening. Further, the geographical and temporal distance are not enough to constitute new crimes or multiple legal incidents.
10. A specific unanimity instruction was not warranted. The absence of such an instruction is not a violation of a fundamental and substantive right that would prejudice Defendant's right to a fair trial process and thereby necessitate a new trial.
THEREFORE, Defendant's Motion For New Trial is hereby DENIED.