21 A.3d 1
Del.2011Background
- Dougherty was indicted for conspiracy second degree, burglary second degree, and felony theft under 11 Del. C. § 512; the conspiracy required an overt act in pursuance of the conspiracy.
- The overt act alleged included burglary second degree, an attempt to commit burglary, or some other overt act.
- The trial court gave a general unanimity instruction and did not sua sponte give a specific unanimity instruction on the overt act.
- Culin testified Dougherty discussed and participated in the burglary and post‑burglary actions, including arranging sale of stolen items through Czarnota.
- Dougherty did not request a specific unanimity instruction; the jury found him guilty of conspiracy second degree and acquitted on burglary second degree and theft; the court declined to grant a new trial or acquittal, affirming the conviction on plain error grounds.
- The Delaware Supreme Court affirmed, holding no plain error in failing to give a specific unanimity instruction under the plain error standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to give sua sponte specific unanimity instruction was plain error | Dougherty | Dougherty | No plain error |
| Whether Probst framework governs requirement for unanimity in conspiracy overt acts | State | Dougherty | Probst framework governs narrowly; general rule often suffices |
| Whether Delaware law requires unanimity on which overt act was committed | State | Dougherty | Not required; general unanimity suffices in this context |
Key Cases Cited
- Probst v. State, 547 A.2d 114 (Del. 1988) (general unanimity usually suffices; specific unanimity for overt act only in narrow cases)
- Chen Chiang Liu, 631 F.3d 993 (9th Cir. 2011) (uncertainty whether must instruct on unanimous overt act; constitutional need unclear)
- Turner v. State, 5 A.3d 612 (Del. 2010) (case discussing plain error standard and opportunities for relief)
- Hoskins v. State, 14 A.3d 554 (Del. 2011) (limited plain error approach in similar context)
- Soliman v. State, 918 A.2d 339 (Del. 2007) (table/reference in Del. cases)