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State v. Bailey

Superior Court of Delaware

March 2, 2017


          Submitted: December 22, 2016

         Upon Consideration of Defendant's Motion to Transfer Charges to Family Court.


          Mark A. Denney, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State.

          Patrick J. Collins, Esquire, Patrick Collins & Associates, LLC, Wilmington, Delaware. Attorney for the Defendant.


          Vivian L. Medinilla Judge


         Defendant Nakeem Bailey was a fifteen-year-old adjudicated delinquent youth when he was arrested on violent felony charges in this Court. His IQ of 72 places him in the 3rd percentile of his same-aged peers. If convicted as an adult, he will spend-at a minimum-the next half of his life (i.e., fifteen years) in prison on just the minimum mandatory portion of his sentence. He filed this Motion to Transfer Charges to Family Court arguing that transfer of his companion charges is warranted pursuant to 10 Del. C. § 1011. A "reverse amenability" hearing was held on December 22, 2016, where the Court heard evidence and oral arguments on the Motion. After considering the submission of the parties, the parties' oral arguments at the hearing, and the record in this case, the Court finds that the § 1011(b) factors do not weigh in favor of transferring Defendant's companion charges to Family Court. Therefore, Defendant's Motion to Transfer Charges to Family Court is DENIED.


         Sadly, Defendant is yet another poster child for why the State created the Department of Services for Children, Youth and Their Families ("DSCYF"). Even more unfortunate is that this Defendant has required the State's involvement from all of their divisions; Division of Family Services ("DFS") for child abuse, dependency, and neglect; Division of Prevention and Behavioral Health Services ("PBH") for his multiple mental health diagnoses; and Youth Rehabilitative Services ("YRS") for his most recent introduction into the juvenile justice system at age fourteen.

         Defendant is one of twenty-two defendants in a 109-Count indictment with trial scheduled to begin at the end of 2017.[1] Defendant has been detained since he was fifteen years old and has celebrated his sixteenth and seventeenth birthdays awaiting trial. The charges against Defendant include Gang Participation, three counts of Possession of a Firearm during Commission of a Felony ("PFDCF"), Robbery First Degree, Assault First Degree, two counts of Possession of a Firearm by a Person Prohibited ("PFBPP"), Conspiracy Second Degree, and Carrying a Concealed Deadly Weapon.

         Exclusive Jurisdiction of Firearm Charges

         The General Assembly has spoken with respect to how it defines criminal behaviors and exercised its authority to classify child offenders "based on their age for purpose of selecting the appropriate court for adjudication."[2] The classification "must be founded on differences reasonably related to the purposes of the statute in which the classification is made."[3] Delaware law is clear that, by enacting 11 Del C. § 1447A(f), the General Assembly intended that individuals over the age of 15 years charged with certain offenses, including firearm charges, be tried as adults and no reverse amenability process is available for these charges.[4]

         Twenty years ago, State v. Anderson addressed the constitutional issues raised when certain juveniles are placed within the exclusive jurisdiction of this Court charged with [firearm offenses].[5] Anderson held that a juvenile was not entitled to a reverse amenability hearing when charged with PFDCF and must be tried as an adult without judicial consideration of the factors enumerated under 10 Del. C. § 1011(b).

         Although some jurisdictions have recently considered unconstitutional certain "automatic transfer" statutes that prevent amenability review for a juvenile offender, [6] Defendant does not challenge the constitutionality of our current laws for juveniles charged with firearm offenses. As such and as a preliminary matter, because the State has charged Defendant with PFDCF and PFBPP, those firearm charges-by operation of statute-automatically remain in this Court.[7] Since Defendant was over fifteen at the time he allegedly committed these offenses, he will not be spared Superior Court proceedings regardless of his arguments for transfer of the companion charges outlined below.[8] Therefore, Defendant's Motion and this ruling focuses solely on the remaining "companion" charges.

         Defendant's Alleged Conduct

         The facts that give rise to these charges reveal that at age 15, Defendant allegedly held up a victim at gunpoint while the victim was rolling a blunt cigarette. The victim relinquished $9 and a pack of cigarillos. According to the victim, Defendant had started to back away and was placing the handgun into his pants pocket when the victim thought he "could take him." When the victim attempted to grab him, Defendant fired the gun. Defendant was identified by the victim and also found discarding the firearm on the same day. Subsequently, during the course of this investigation, the alleged relationships between Defendant and some co-defendants gave rise to the gang participation charges. If convicted, Defendant faces a minimum mandatory sentence of fifteen years. His first fifteen years were no better.

         Defendant's 15-Year History of Abuse, Dependency, Neglect, and Mental Health

         At the reverse amenability hearing, Defendant presented expert evidence in support of his Motion that provided a background for the pending charges. The State did not introduce any evidence to dispute or contradict the opinions of Defendant's experts. This evidence included a "Confidential Report of Psychological Evaluation" from a licensed psychologist, Dr. Robin Belcher-Timme, Psy.D, and an "Amenability Report" prepared by Taunya Batista, M.A., a Sentencing Advocate/Mitigation Specialist.[9]

         Their reports and testimony painted a troubling picture of Defendant's life.[10]The record reflects that Defendant's numerous traumatic life events, beginning at birth, were far from abnormal in the arc of his short life leading up to the charges in this case. Defendant's mental health, child welfare, and substance abuse histories include:

Mental health history (from his records with the Division of Prevention and Behavioral Health Services ("PBH")): Defendant was diagnosed with ADHD, Oppositional Defiant Disorder ("ODD"), and Mood Disorder.
Child welfare history (from the Division of Family Services)-Evidence of severe domestic violence, child abuse, dependency, and neglect that dates back to when Defendant, as early as one month old, was neglected (e.g., his mother left him in the care of a ten-year-old). At one month old, the Family Court awarded guardianship of Defendant to his maternal grandmother. Moreover, both biological parents had a significant history of substance abuse. Defendant routinely pled with his mother not to force visits with his father. These requests fell on deaf ears and Defendant was frequently a victim of his father's substance-induced rages, including physical abuse. He also witnessed acts of domestic violence by his father against women in his father's house. Defendant was also beaten by other male figures in his life.
Substance abuse history-Defendant's substance abuse started in eighth grade, around the time that his uncle was murdered. His substance abuse history reveals that he used marijuana, Xanax, Percocet, and Promethazine. It is within this disturbing context that the Court now turns to weigh the

factors under 10 Del. C. § 1011(b) and the arguments made for and against transfer of the companion charges to Family Court.


         The reverse amenability process has been determined a matter of constitutional entitlement with time-sensitive provisions intended to identify those juveniles who may still be able to return to Family Court.[11] When a juvenile files a motion to transfer all or some of the charges leveled against him, the Court must hold a reverse amenability hearing and weigh the four factors set forth in 10 Del. C. § 1011(b).[12]

         The Court "may" consider evidence of: (1) "[t]he nature of the present offense and the extent and nature of the defendant's prior record, if any;" (2) "[t]he nature of past treatment and rehabilitative efforts and the nature of the defendant's response thereto, if any;" (3) "[w]hether the interests of society and the defendant would be best served by trial in the Family Court or in the Superior Court;" and (4) any "other factors which, in the judgment of the Court are deemed relevant."[13]

         Before the Court weighs these factors, however, "the Court must preliminarily determine whether the State has made out a. prima facie case against the juvenile, meaning whether there is a fair likelihood that [Defendant] will be convicted of the crimes charged."[14] There is a fair likelihood that the defendant will be convicted if, after reviewing the totality of the evidence presented, it appears that, if the defense does not sufficiently rebut the State's evidence, "the likelihood of a conviction is real. . ., "[15] Furthermore, "[a] real probability must exist that a reasonable jury could convict on the ...

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