Hameen's Fifth, Sixth and Fourteenth Amendment rights under the United States and Delaware Constitutions were violated when the State used a defective indictment to limit his ability to prepare a defense.
Hameen's rights to the effective assistance of counsel, due process and a fair trial were violated when the State used a defective indictment to impeded his ability to prepare a defense. The State intentionally omitted an essential fact constituting the offense charged, felony murder, in the indictment for the exclusive purpose of limiting the potential options available for a defense.
There is no dispute that count IV of the indictment, felony murder, did not specify the underlying felony during whose commission the homicide occurred. (See State's response on post conviction appeal to the Delaware Supreme Court, Feb. 5, 1995, at 26)
Count IV of the indictment reads as follows:
MURDER FIRST DEGREE in violation of
Title 11, section 636 (a) (1) of the Delaware Code of 1974,
as amended.
CORNELIUS FERGUSON and TYRONE HYLAND,
on or about the 5th day of August, 1991, in the County of New Castle, State
of Delaware, did in the course of and in the furtherance of the commission
or attempted commission of a felony or immediate flight therefrom, they
recklessly caused the death of Troy D. Hodges.
As written, the felony murder count does not comply with the requirements of Superior Court Criminal Rule 7 (c), by setting forth and delineating with specificity all the elements necessary to constitute the offense, felony murder, charged in the indictment.
Because the underling felony is an essential element of felony murder, proof of the underlying felony is thus a sine qua non to a felony murder conviction. Felony murder, a compound crime, requires proqf of two distinct offenses: 1 that a homicide has occurred; and, 2. that the homicide occurred during the commission and furtherance or immediate flight of a predicate felony. DeJesus V. State, Del. Supr., 655 A.2d 1180 (1995)
In Collins v. State, Del. Supr., 420 A.2d 170, the court concluded:
(1) that a limited immunity was granted defendant for any robbery offense7 and for these purposes that immunity is treated as an acquittal; (2) that an acquittal of robbery requires a determination that defendant did not commit the predicate crime or robbery which is necessarily required for a finding of guilt of the offense of felony murder; (3) hence, felony murder prosecution of defendant under § 636(2) is barred by defendant's acquittal through immunity of underlying robbery.
Collins v. State, Del. Supr., 420 A.2d 170, 175-6.
Collins was indicted far felony murder, armed robbery, conspiracy, and possession of a deadly weapon during the commission of a felony. The State then nolle prossed all charges except the felony murder count. Collins' contention that the indictment was fatally defective failed because the underlying felony, robbery, was included within the indictment prior to being nolle prossed. "The indictment charged that defendant and another, 'during the commission of a felony of robbery first degree upon Walter R. Siattery, as contained in Count I of this Indictment I (Collins V. State, Del. Supr., 420 A.2d 170, 173).
Like wise, the Delaware Supreme Court has concluded that an indictment for burglary requires, as an essential element, that the specific crime intended to be committed must be set forth in an indictment:
Even though in burglary and statutory housebreaking the intent, as defined by the law is simply to commit a felony, it is not sufficient in the indictment to follow these general words, but the particular felony intended must be specified.
State V. Deedon, Del. Supr., 189 A.2d 660 (1963).
In this case, then indictment's failure to provide the defendant with a plain, concise, and definite written statement of the essential facts constituting the offense charged, was and intentional omission by the state to effectively prevent the defendant from preparing a defense to either count of First Degree Murder within the indictment. This strategy was disclosed during the prayer conference to determine the judges charge to the jury.
While discussing the felony murder count the prosecutor's comments were as follows:
Does he know what this case is about? Is he protected by double jeopardy from the Bill of particulars that was filled? All of those things are in place. He has gotten as fair a trial as he can get, and to say that this some how files in the face of fundamental fairness or jurisprudence is really, really stretching it. I mean what counsel seeks is a windfall by the ambiguity of his client's actions inside the car. I don't think he should get away with murder because he successfully argues that they were drug trafficking and not robbing. I can't imagine how that is fair trial. (at 31-32)
Shortly thereafter: On pages 34-35 the prosecutor comments:
One of the things that is frankly holding
me up is that the case that actually got tried is a little different from
the case that was prepared... The case against
Hyland is a little different from the
case against Ferguson. The case against Ferguson looks a lot more like
robbery than it does like drug trafficking. And I wonder whether we're
maintaining a position that we have to maintain or whether or not we can
concede the trafficking elements since the defendant... since the version
or the statement that is in right now does not have trafficking in it...
But I do conjecture, I suppose, the irony of having counsel then argue
that no, they were trafficking, not committing a robbery. I'm just not
sure how that argument works. (at 34~35)
Prayer Conference transcript, November 6, 1992.
Because the State was confronted with two defendants who had given separate accounts of the events leading up to the homicide, the State attempted to "cover all its bases" by not specifying the underlying felony it would rely upon in the indictment. This deprivation of proper notice for the purpose of circumventing the defendants ability to prepare a defense cannot be cured through the use of a Bill of Particulars. A Bill of Particulars may not be used to supply a missing element, and neither strengthens nor weakens an information to which it is attached. State v. Deedon Supra. A Bill of Particulars cannot save an invalid indictment. Russell v. U.S. 369 U.S. 749, 770 (1962). Also see U.S. v. Hooker, 841 F.2d 1225 (1988).
Although the method employed by the State to draft the felony murder count was not the only means available. The drafter, with a few additional minutes of commitment, could have complied with Super. Ct. Crim. K. 7(c) by choosing to properly indict in the alternative. However, this course would have proven fatal to the other counts in the indictment, including the first degree (intentional) murder count.
Though their statements, the defendants gave two very different accounts of the events on the evening of the homicide. Hameen, in his statement, claimed only to be along for the ride and knew nothing about a drug deal. On the other hand, Hyland claimed in his statement that he and the victim were to meet for the purpose of consummating a prearranged drug deal.
These differences presented a particularly troubling challenge for the State when constructing the indictment. To succeed on counts I, II, IV, and V of the indictment, the State would need to demonstrate to a jury that both defendants shared a common scheme and motivation. However, to indict in the alternative would have created a direct conflict concerning the common scheme and motivation approach.
For instance, with trafficking and robbery
incorporated into the indictment as underlying felonies to the felony murder
count, the State's allegations that the defendant's conspired to commit
the crimes of murder, trafficking, and robbery
would have been undermined by the fact that the defendants'
statements gave separate and distinct reasons for their being at the location
of
the homicide.
To remedy the conflict that existed, between the assumption of a conspiracy and the separate plans and thoughts for the evening in the defendants' respective statements, the State exploited the only option available in the indictment; the felony murder count. The State's intentional non feasance made the felony murder count a Igenericil accusation, that did not contain a plain, concise and definite statement of the essential facts to allow Hameen to prepare a defense properly. This omission was not a harmless error and should be grounds for reversal of the convictions as it mislead Hameen to his prejudice. (See Super. Ct. Crim. Rule 7(c)(2)).
The United States Supreme Court has held that, in certain instances, prejudice is presumed when a violation of a defendant's rights to the assistance of counsel and a fair trial are impaired due to government interference.
In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of State interference with counsel's assistance... Prejudice in these circumstances is so likely that case by case inquiry into prejudice is not worth the cost... More over, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.
Strickland V. Washington 466 U.S. 668, 692.
Therefore, Hameen's conviction
and death sentence should be reversed and remanded for a new
trial.
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