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White v. State

Supreme Court of Delaware

October 17, 2017

CURTIS WHITE, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: October 4, 2017

         Court Below: Superior Court of the State of Delaware I.D. No. 1209017723

         Upon appeal from the Superior Court. REVERSED and REMANDED.

          Michael W. Modica, Esquire, for Appellant, Curtis White.

          Brian L. Arban, Deputy Attorney General, Department of Justice, Wilmington, Delaware, for Appellee, State of Delaware.

          Before STRINE, Chief Justice; VAUGHN and SEITZ, Justices.

          STRINE, CHIEF JUSTICE

         I.

         Curtis White appeals the denial by the Superior Court of his post-conviction claim under Strickland, which contended that White was prejudiced when his trial counsel unreasonably failed to accede to his request to ask for a lesser included offense instruction. In the post-conviction proceeding, trial counsel admitted that he did not understand the lesser included offense of the major charge, First Degree Reckless Endangering, that his client faced. White was charged with First Degree Reckless Endangering after he fired a gun on a residential block, and asked his counsel to seek a lesser included offense instruction on the crime of Second Degree Reckless Endangering. His counsel did not, believing that (1) at the very least his client's use of a gun created a risk of "serious physical injury, " (2) First Degree Reckless Endangering encompassed not just a risk of death, but also a risk of serious physical injury, and (3) therefore he could not seek the lesser included offense instruction.[1]

         But, in reality, it was irrelevant whether or not White's conduct created a risk of serious physical injury because First Degree Reckless Endangering requires proof of a substantial risk of death, [2] and Second Degree Reckless Endangering requires proof of a substantial risk of physical injury.[3] That is, neither the felony First Degree Reckless Endangering offense nor the misdemeanor Second Degree Reckless Endangering offense includes the serious physical injury element between risk of death and risk of physical injury counsel thought existed.

         A reasonable jury could have found White guilty of Second Degree Reckless Endangering because there was evidence that White was not pointing his gun at anyone in particular and was instead aiming blindly behind himself.[4] Thus, there were factual grounds to give the lesser included offense instruction. Supporting this conclusion are prior decisions of this Court, which have found that even when a defendant uses a weapon that can be lethal, a lesser included offense instruction for Second Degree Reckless Endangering can be proper, depending on the facts.[5]

         Here, trial counsel conceded he acted without a tactical purpose, and there is no plausible tactical reason for failing to request the instruction. Thus, counsel's performance fell below an objective standard of reasonableness for purposes of Strickland. And because a jury could have concluded that White was guilty of Second Degree Reckless Endangering rather than First Degree Reckless Endangering, there was prejudice under Strickland. For these reasons, we reverse.

          II.

         Around 5:30 p.m. on September 24, 2012, Curtis White was standing on the corner of 26th and Zebley Streets in Wilmington with two other people when an off-duty police officer drove by.[6] The off-duty police officer heard gunshots and saw White "running around the corner and firing a gun, and stated that [White] was not looking where the gun was aimed."[7] White drove away from the scene at a high rate of speed, was identified and followed by the police, and eventually turned himself in to the police.[8]

         The police found three gun casings at the scene, one gun casing down the street, a bullet hole in a car parked outside 512 W. 26th Street, a "projectile fragment" in the outside screen of 510 W. 26th Street, and a piece of chipped brick on the porch of 512 W. 26th Street.[9] No one was injured by White's gunfire and none of the bullets White fired penetrated any of the homes on the street.[10] On the final day of trial, White asked trial counsel to seek the lesser included offense instruction for the offense of First Degree Reckless Endangering.[11] Trial counsel declined to do so.

          The jury found White guilty of First Degree Reckless Endangering, Possession of a Firearm During the Commission of a Felony, Possession of a Firearm by a Person Prohibited, and "[three] criminal mischief offenses related to the property damage from the bullet strikes."[12] White was sentenced to nineteen years of Level V incarceration, suspended after twelve years for decreasing levels of supervision.[13] White appealed his conviction to this Court, and we affirmed.[14]

         White then filed this petition for post-conviction relief, arguing trial counsel's representation was ineffective because of his failure to seek a lesser included offense instruction. Trial counsel admits that (1) "until reading the statute" after receiving an email from White's Rule 61 counsel, he assumed that "Reckless Endangering 1st degree encompassed both 'serious physical injury' and 'death, '"[15] and (2) he rejected White's request for a lesser included offense instruction because he believed "a bullet fired from a gun would not result in any injury other than 'serious physical injury.'"[16] Counsel admits he denied White's request for a lesser included offense instruction because he thought "[i]t made no sense to argue that a bullet fired from a gun might only create a substantial risk of physical injury. It did not seem plausible that a jury would consider a bullet striking a person as resulting in any injury other than 'serious physical injury, ' as defined under Delaware law."[17]

         As counsel acknowledged, "I failed to consider the large gap between 'physical injury' (Reckless Endangering 2nd Degree) and 'death' (Reckless Endangering 1st Degree). Given those extremes, one could easily assert that 'serious physical injury' dovetails better with 'physical injury' versus 'death.' I am 100% positive that I neglected to contemplate that issue. Moreover, in a case involving ricochet evidence, one could possibly argue that even 'physical injury' was in play, per Oney v. State."[18]

         The Superior Court applied Stickland's two-prong test in addressing White's claim.[19] As to the first prong, the Superior Court determined that trial counsel's representation did not fall below an objective standard of reasonableness because trial counsel strategically denied White's request for a lesser included offense instruction to focus on "attack[ing] whether [White] consciously disregarded a substantial risk that death would result."[20] As to prejudice, the Superior Court noted that it "struggle[d] to see how, even upon request of the [lesser included offense instruction], the [instruction] would have been granted."[21]

         We part company from the Superior Court on these points. As we next discuss, we fail to see how not asking for the lesser included offense instruction constituted a reasonable tactical decision, both because it was uninformed and because asking for the instruction would have been consistent with trial counsel's strategy. Likewise, we disagree that ...


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