Opinion
No. 9908000379.
Submitted: November 5, 1999.
Decided: February 23, 2000.
Upon Consideration of Defendant's Motion for Bill of Particulars
Robert J. O'Neill, Jr., Esq., Dover, Delaware. Attorney for the State.
Michael J. Malkiewicz, Esq., Dover, Delaware. Attorney for Defendant.
DENIEDORDER
Upon consideration of the defendant's motion, the arguments of counsel, and the record in this case, it appears that:
1. The defendant, Kenneth C. Wright, is charged with two counts of Unlawful Sexual Contact in the Second Degree, 11 Del. C. § 768 and Endangering the Welfare of a Child, 11 Del. C. § 1102. He has moved for an order requiring the State to provide him with a bill of particulars. The State did voluntarily provide him with a bill of particulars, but the defendant argues it is insufficient for purposes of preparing his defense. Because the defendant has already obtained at a preliminary hearing all the information which can be reasonably sought by a bill of particulars, the motion is denied.
2. Wright is accused of intentionally engaging in unlawful sexual contact with the victim, his daughter, who was apparently two years old at the time of the alleged incidents. The crimes are alleged to have taken place sometime between February 23 and March 9, 1997. He now seeks to compel the State to provide him with additional information regarding each charged offense. Specifically, regarding the Unlawful Sexual Contact charges, he seeks the disclosure of the exact locations where the alleged incidents occurred and the precise type of sexual activity involved. In the response which it did tile to the defendant's request for a bill of particulars, the State indicated the incidents occurred either at Wright's residence, the victim's mother's home or elsewhere. Regarding the nature of the activity, the State referred Wright to the statutory definition of unlawful sexual contact found in 11 Del. C. § 761 (f). In reference to the charge of Endangering the Welfare of a Child, Wright seeks to discover the specific location where this occurred, the way in which it was committed and the type of injury incident to the victim. The State, in its response, stated it took place at Wright's residence, the victim's mother's residence or elsewhere. Further, the State indicated that the commission of the proscribed conduct itself is what endangered the victim but refused to allege with specificity the precise type of injury caused as a result.
3. Wright argues the information he seeks is necessary for the preparation of his defense and the Bill of Particulars is the appropriate method by which to acquire it. The State rebuts this assertion by arguing it is not obligated to provide information beyond that which has been supplied in the indictment and the bill of particulars nor can it be compelled to "freeze its case" in advance of trial.
4. An indictment serves to notify a defendant of what he must defend against and also serve as a shield against the possibility of double jeopardy. Accordingly, it is adequate so long as it informs the defendant of the facts and charges against him sufficient to enable him to prepare for his defense. Essentially, a bill of particulars provides supplemental information. It serves to protect a defendant against unfair surprise at trial and prevent subsequent prosecutions for an insufficiently described offense. Basically, it fills in any informational gaps missing in the indictment which then allows the accused to develop his defense. However, while the prosecution is generally limited to proving those facts included in the bill of particulars, the State's case is not "frozen" prior to trial by it. While a bill of particulars is designed to clarify the allegations, it is not meant to compel the State to disclose its theory of the case or evidentiary information. "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." The decision to grant a motion for a bill of particulars rests within the sound discretion of the court. Accordingly, the deciding court 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."
State v. Banther, Del. Super., No. IK97-05-0094, Ridgely, P.J. (April 2, 1998) (ORDER), quoting State v. Gardner, Del. Super., Cr. A. No. IN93-01-0854, Toliver, J. (Aug. 24, 1993) (Op. and Order).
Id.
Lovett v. State, Del. Supr., 516 A.2d 455, 467 (1986).end;
Lovett, 516 A.2d at 467, citing United States v. Cantu, 5th Cir., 557 F.2d 1173, 1178 (1977); cert. denied, 434 U.S. 1063 (1978).
State v. Traekner, Del. Super., 314 A.2d 202, 208 (1973).
Lovett, 516 A.2d at 465.
United States v. Hajecate, 683 F.2d 897 (1982); State v. Strughold, Mo. Ct. of Ap., 973 S.W.2d 876, 890 (1998).
Banther at 1.
Super. Ct. Crim. R. 7(f); State v. Banther, Del. Super., No. 9705000270, Ridgely, P.J. (April 2, 1998) (ORDER).
Id., quoting United States v. Rosa, 3d Cir., 891 F.2d 1063, 1066 (1989).
5. In order to put the defendant's request for a bill of particulars in context, it must first be noted that a preliminary hearing was conducted in this matter. At the hearing Detective Jon F. Wood, a Delaware State Police detective, testified for the State. According to his testimony, in March 1997 Detective Gordon Bowers received a complaint involving an allegation of sex abuse on the part of Mr. Wright. The alleged victim was Wright's child, who was around two years old at the time. The case was placed on inactive status because of the child's inability to verbalize with sufficient clarity the events that she was alleging. In April 1999 the Division of Family Services informed the police that the child had now disclosed to a counselor the alleged events that occurred between her and her natural father, the defendant. The case was then reactivated. Officer Wood then interviewed the child, and according to his testimony the child indicated that her father had rubbed her vagina and her rear end while she was in a bathtub at his house. At the time involved, February and March 1997, the child was having visitations with her father several hours on weekends. The incident apparently occurred at the father's residence. The cross-examination of the officer is approximately 32 pages.
6. With regard to location, the investigating officer testified that the alleged offenses occurred at the defendant's residence. In its bill of particulars, the State decided to take the position that it is unable to state the specific location of the alleged offenses. It appears to the Court that the defendant is in possession of all of the information on hand concerning the location of the alleged offenses. With regard to the other information sought by the defendant's motion, the Court finds that the information is adequately provided by the testimony provided at the preliminary hearing. A defendant is not entitled to a bill of particulars for information of which he is already aware or which is readily accessible to him.
Therefore, the defendant's motion for a bill of particulars is denied.
IT IS SO ORDERED. _______________ Resident Judge
oc: Prothonotary cc: Order Distribution