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State v. Burke

Superior Court of Delaware, New Castle

December 19, 2014

STATE OF DELAWARE,
v.
CONOR BURKE, JOHN P. BRADLEY, GEORGE HAMILTON, CHRISTOPHER SMITH, JILL E. HARRIS, Defendants.

Submitted: September 18, 2014

Upon Defendant's Motion to File "Out of Time" — GRANTED

Upon Defendant's Motion for Bill of Particulars —DENIED in part; GRANTED in part.

HONORABLE ANDREA L. ROCANELLI

On January 6, 2014, Defendants were arrested for charges related to an alleged involvement with a conspiracy to commit murder. Defendants were indicted on April 28, 2014. The indictment charges Defendants with stalking, conspiracy in the second degree, and possession of a firearm during the commission of the felony of stalking.

Defendants have moved for a bill of particulars with respect to the specific time, date or dates, and location where the offenses are alleged to have been committed and the specific conduct engaged in which constituted the alleged offenses. Defendants also requested that this Court consider their motions even though the motions were filed "out of time." The State opposes Defendants' motions. The Court heard oral argument.

A bill of particulars provides a defendant with information to supplement the contents of the indictment.[1] While the indictment provides a plain statement of the essential facts that constitute the offense(s) charged, [2] a bill of particulars serves to protect the defendant from unfair surprises at trial and precludes additional prosecution for "an inadequately described offense."[3]

The Court has broad discretion to grant a motion for a bill of particulars.[4]The Court's decision should consider that the purpose of a bill of particulars is to clarify allegations against a defendant while recognizing that a bill of particulars is not a substitute for discovery nor is it a mechanism to force the State to disclose evidence or surrender its legal theory of the case.[5]

With respect to the timeliness of Defendants' motion for a bill of particulars, the Superior Court Criminal Rules provide that a defendant may file a motion for a bill of particulars within ten days of arraignment or "at such later time as the court may permit."[6] Accordingly, Defendants' motion to file out time is hereby granted and the Court will consider the motion for a bill of particulars on the merits.

In support of the motion for a bill of particulars, Defendants argue that because the indictment alleges that the offenses were committed over a substantial period, Defendants need to know which acts the State alleges are predicate acts in the commission of the offenses. Specifically, Defendants note that the one charge of possession of a firearm during the commission of a felony alleges a period of twenty-two (22) days during which Defendants allegedly possessed a firearm. The indictment reads as follows:

COUNT I . . . STALKING . . . on or between the 16th day of December, 2013, and the 6th day of January, 2014 . . . [Defendant] did knowingly engage in a course of conduct directed at [the victim] and that conduct would cause a reasonable person to fear injury to himself . . . .
COUNT III . . . POSSESSION OF A FIREARM DURING THE COMMISSION OF A FELONY . . . on or between the 16th day of December, 2013, and the 6th day of January, 2014 . . . [Defendant] did knowingly and unlawfully posses a firearm . . . during the commission of Stalking, a felony as set forth in Count I.

Per the indictment, Count III incorporates by reference Count I, which states that Defendant did knowingly engage in a course of conduct directed at the victim. The Delaware Code defines "course of conduct" as "three or more separate incidents."[7] Accordingly, Defendants claim that the State could make the argument that Defendants committed separate acts of possession of a firearm during the commission of a felony on each of the twenty-two (22) days. Furthermore, Defendants' point out that the ambiguous phrasing of the indictment raises double jeopardy concerns. Defendants' argue that a bill of particulars is critical for Defendants' to understand the allegations and to prepare defenses for trial.

The recent and relevant Delaware Supreme Court decision Luttrell v. State, [8]is the cornerstone of Defendants' motion for a bill of particulars. In Luttrell, the defendant faced multiple counts of first degree rape, attempted rape, and unlawful sexual contact.[9] Before trial, the defendant filed a motion for a bill of particulars, alleging that the indictment lacked clarity as to the essential elements of the crimes charged, failed to include essential facts, and failed notify the defendant of the particular crimes charged sufficient to prepare a defense.[10] The Superior Court denied the defendant's motion, finding that the indictment, supplemented by the affidavit of probable cause, fairly apprised the defendant of the offenses charges.[11]However, the Supreme Court reversed and remanded the Superior Court's decision, concluding that the affidavit of probable cause summarized the offenses charged, but did not specify which particular acts aligned with each offense charged in the indictment.[12] Specifically, the ...


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