38 A.3d 271
Del.2012Background
- On remand, Weber was retried for Attempted Robbery First Degree and convicted; sentenced to 25 years at level V.
- Weber had previously been tried on related charges; on Weber I, the court reversed for lack of a correct lesser-included offense instruction and remanded.
- Evidence included Naspo’s description and a nearby showup, plus surveillance video linking Weber to the incident.
- Police obtained Weber from his home, with clothing taken from the scene rather than the shirt Weber wore during the arrest.
- Weber challenged multiple trial procedures, including preservation of evidence, identification procedures, and potential sentencing issues.
- The State sought habitual offender status and Weber sought to enforce a prior plea offer; the court addressed these post-trial issues before final sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to preserve evidence and missing evidence instruction | Weber | Weber | No duty to preserve shirt; instruction not warranted |
| Out-of-court identification suggestiveness and reliability | Weber | Weber | Identification not impermissibly suggestive or unreliable |
| Sufficiency of evidence to support conviction | Weber | Weber | Sufficient evidence supports conviction |
| Single-theory unanimity and statutory wording sua sponte | Weber | Weber | Issue not persuasive; no error in unanimity handling |
| Double jeopardy and cumulative punishment | Weber | Weber | No improper cumulative punishment where convictions/punishments were authorized |
Key Cases Cited
- Weber v. State (Weber I), 971 A.2d 135, 971 A.2d 135 (Del. 2009) (reversed for lack of proper lesser-included offense instruction)
- Lolly v. State, 611 A.2d 956 (Del.1992) (missing evidence instruction framework)
- Deberry v. State, 457 A.2d 744 (Del.1983) (duty to preserve potentially exculpatory evidence)
- Lunnon v. State, 710 A.2d 197 (Del.1998) (balancing test for prejudice from missing evidence)
- Biggers v. United States, 409 U.S. 188 (1972) (reliability governs due process in identification)
- Vouras v. State, 452 A.2d 1165 (Del.1982) (familiarity with defendant's characteristics affects identifications)
- Richardson v. State, 673 A.2d 144 (Del.1996) (identification procedures and due process considerations)
- Johnson v. State, 27 A.3d 541 (Del.2011) (appellate review standards and related rulings)