December 19, 2014
STATE OF DELAWARE,
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. While the indictment provides a plain statement of the essential facts that constitute the offense(s) charged,  a bill of particulars serves to protect the defendant from unfair surprises at trial and precludes additional prosecution for "an inadequately described offense."
The Court has broad discretion to grant a motion for a bill of particulars.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.
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." 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." 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, 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. 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. 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.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. Specifically, the Court stated that the indictment and affidavit did not inform the defendant of the charges against him "in a way that would have put [the defendant] on notice of the specific conduct . . . charged . . . so [the defendant] could prepare a defense."
With respect to Defendants' motion for a bill of particulars on the stalking charge, the Luttrell case is distinguishable because the Luttrell indictment charged the defendant with multiple counts of the same type of conduct, to the point where the defendant could not distinguish what conduct applied to which charge. Here, however, there is no confusion – and Defendants' assert no confusion – in determining the difference in the underlying conduct between the counts because there is only one charge for each type of conduct. Accordingly, the Defendants' motion for a bill of particulars on the stalking charge is hereby DENIED.
With respect to a bill of particulars on the charge of possession of a firearm during the commission of a felony, Defendants' argue that it is unclear as to the specific firearm that Defendant Burke allegedly possessed during the commission of the felony of stalking. Defendants' suggest that at a minimum, it is critical that the State disclose the specific gun that the State alleges Defendants possessed. The Court agrees. Accordingly, Defendants' motion for a bill of particulars on the charge of possession of a firearm during the commission of a felony is hereby GRANTED.
NOW, THEREFORE, on this 19th day of December, 2014, upon consideration of Defendants' Motion for a Bill of Particulars:
1. With respect to Count I of the Indictment, Stalking, DENIED;
2. With respect to Count III of the Indictment, Possession of a Firearm During the Commission of a Felony, the State shall be required to provide the defense with the following information:
a. Details about the firearm which is alleged that each Defendant possessed between December 16, 2014 and January 6, 2014, such as whether it is the firearm allegedly the subject of discussion between Defendants and/or the firearm addressed in paragraph eight of the affidavit of probable cause;
b. The specific date or dates on which it is alleged that each Defendant possessed the firearm;
c. The specific location at which it is alleged that each Defendant possessed the firearm; and
d. The specific act or acts alleged to have been committed by each Defendant, which constitute(s) possession of the firearm.
IT IS SO ORDERED.