Lester R. BULLOCK, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
No. 277, 1999.
Supreme Court of Delaware.
Decided: June 27, 2001.
Submitted: Nov. 28, 2000.
1043
The judgment of the Superior Court is REVERSED. This matter is REMANDED to the Superior Court so that the appeal may proceed.
Lester R. BULLOCK, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
No. 277, 1999.
Supreme Court of Delaware.
Submitted: Nov. 28, 2000.
Decided: June 27, 2001.
Kim Ayvazian, Department of Justice, Georgetown, for Appellee.
Before VEASEY, C.J., WALSH, HOLLAND, BERGER and STEELE, JJ.
STEELE, Justice for the Majority:
On October 22, 1998, a jury convicted Lester B. Bullock of manslaughter arising from a collision between Jennifer Alleger‘s car and Bullock‘s truck at the intersection of Rt. 40 and Pleasant Valley Road. The
On appeal, Bullock argues that no reasonable juror could conclude that he proximately caused the accident because Alleger became the sole proximate cause of the accident when she disregarded a red light and drove her car into his path after his truck had entered the intersection controlled by a yellow light. Bullock also argues that the Superior Court erred by giving the jury an “unavoidable accident” instruction instead of an “accident” instruction and by failing to instruct the jury properly on reckless causation in accordance with
I
On December 8, 1997 аt approximately 6:25 p.m., Bullock drove his pick-up truck westward on Route 40 in New Castle County. As he approached the intersection of Route 40 and Pleasant Valley Road, the traffic control signal in front of him at the intersection turned yellow. At the same time, Alleger waited in a turn lane on eastbound Route 40, facing a solid red arrow, preparing to cross the westbound lanes of Route 40 and turn north onto Pleasant Valley Road. Bullock increased his speed through the intersection. As he drove through the intersection, Alleger entered the intersection against the red signal and collided with Bullock‘s truck.
Delaware State Police Trooper Raymond Shatley responded to the accident. He found Alleger‘s car on Route 40 approximately 100 feet west of the intersection. He found Bullock‘s truck on Route 40 farther west of the intersection than Alleger‘s car. Shatley determined that Alleger was dead at the scene.
Shatley questioned Bullock. He detect-
Paramedics transported Bullock to the Christiana Emergency Room to draw a blood sample to determine his blood-alcohol level. Approximately two hours after the accident, Bullock‘s blood-alcohol level registered .079 grams per deciliter, a reading below the legal level for intoxication. Shatley did not cite Bullock for driving under the influence of alcohol. The State, however, arrested Bullock for criminally negligent homicide and then sought an indictment for manslaughter.3
Delaware State Police Officer Philip Strohm, Jr., an accident reconstruction expert, arrived at the accident scene approximately one hour after the accident. Strohm testified that Bullock faced a yellow light when he proceeded through the intersection and that Alleger faced a solid red arrow. He opined that Alleger attempted to cross Rоute 40 onto Pleasant Valley Road. Strohm determined that Bullock clearly had the right of way at the time of the accident. Strohm determined that only 300 feet separated the two vehicles when Alleger initially pulled out onto Route 40 and that Bullock spanned this distance in three seconds. According to Strohm, a normal person can perceive and react to a danger in 1.5 seconds. At fifty-five mph, a driver would travel 120 feet before perceiving and reacting to a danger and would travel another 260 feet before the car could come to a complete stop. He determined that at the point of impact, Alleger was travelling slightly above 11 mph while Bullock was traveling approximately 77 mph. Markings on the road indicated that Bullock steered right in an attempt to avoid the collision. Strohm concluded that, while Bullock‘s speed and consumption of alcohol may have contributed to the accident, “the primary contributing circumstance of the collision was Ms. Alleger passing a red light.”4
II
The primary issue in this case is whether the Superior Court properly instructed the jury on reckless causation. A secondary issue is whether the Superior Court erred when it instructed the jury on “unavoidable accident.” Bulloсk‘s counsel, however, did not object to the unavoidable accident instruction given or proffer an instruction based upon Section 263. Therefore, we review for plain error.
“The primary purpose of jury instructions is to define with substantial particularity the factual issues and clearly to instruct the jury as to the principles of law [that] they are to apply in deciding the factual issues presented in the case before them.”6 “A trial court must give instructions to a jury as required by evidence and law whether the parties request the instruction or not.”7 Indeed, “[t]he trial judge is charged with the responsibility for instructing the jury. This is not controlled by the parties as their function and duty is to bring to the court‘s attention the instructions they consider applicable and the reasons why they should be given.”8 “As a general rule, a defendant is not entitled to a particular instruction, but he does have the unqualified right to a correct statement of the substance of the law.”9 And “[w]hile ‘some inaccuracies and inaptness in statement are to be expected in any charge,’ this Court will reverse if the alleged deficiency in the jury instructions ‘undermined ... the jury‘s ability to intelligently perform its duty in returning a verdict.‘”10
At trial, the Superior Court instructed the jury that:
The indictment charges ... that Lester Bullock ... did recklessly cause the death of Jennifer Alleger by driving at an excessive speed while impaired by alcohol and which resulted in a collision with another car.
Delaware defines the offense of manslaughter in pertinent part as follows: A person is guilty of manslaughter when he recklessly causes the death of another person. In order to find the defendant guilty of manslaughter, you must find that each of the following elements have been established beyond a reasonable doubt: One, the defendant caused the death of Jennifer Alleger.
By this I mean the defendant must have brought about this death which would not have occurred but for such act. And two, the defendant acted recklessly.
A person acts recklessly with respect to death when he is aware of and consciously disregards a substantial and unjustifiable risk that death will result from his conduct. The risk must be of such a nature and degree that the person‘s disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
You must find that the person was aware of and consciously disregarded the risk that his conduct would cause death and also that the risk was so great that a reasonable person under the circumstances would have acted otherwise to avoid the risk.
And three, the defendant was driving at an excessive speed while impaired by alcohol which resulted in a collision with another car.11
Bullock argues that under Delaware law, when recklessness is an element of the crime, the State must prove that the defendant was a proximate cause of an injury. Bullock argues that no reasonable juror could conclude that he proximately caused the collision because Alleger‘s negligence was an intervening and superseding cause of the collision. Therefore according to Bullock, Alleger became the sole proximate cause of the accident when she disregarded a red arrow, entered the intersection and collided with Bullock‘s truck. To support his argument that he cannot be a proximate cause of the collision Bullock notes that the State‘s expert, by concluding that Alleger was the primary cause of the collision, in effect, concluded that Alleger, not Bullock, was the proximate cause of the accident.
The State argues that the Superior Court properly instructed the jury because “the jury was fully instructed on the elements of manslaughter.”13 The State argues that Bullock acted recklessly because he was speeding and impaired by alcohol. The State reasons that “but for” his speed and “impairment” his truck would not have collided with Alleger‘s car and she would not have died. Because Bullock should have foreseen that a collision with Alleger could have resulted from his speeding while impaired by alcohol, the State argues, Bullock should be criminally liable for the consequences of his actions. The State argues that it proved that Bullock was aware of and consciously disregarded the risk that his conduct would cause death and that a reasonable person would have acted otherwise, and that “but for” his conduct, the death would not have occurred. The State maintains that the Superior Court‘s instruction contained all the elements required or at least charged the jury sufficiently so that it could intelligently perform its duty.
The State further argues that Bullock misstates the issue by arguing that Alleger was a superseding cause of the accident, maintaining that Bullock confuses civil law concepts of causation with the Model Penal Code‘s analytical framework for imposition of criminal liability. The State argues that “[t]here is no question that Bullock caused [Alleger‘s] death by colliding with her car. The issue at trial was not whether Alleger was negligent but whether Bullock should be held criminally liable for his reckless conduct. Since there was more than legally sufficient evidence that Bullock‘s conduct in driving at an excessive speed while impaired by alcohol was reckless, the trial court did not err in denying his motion for judgment of acquittal.”14 There is, however, a distinction between the Superior Court‘s assessment of a motion for a judgment of acquittal and its formulation of an instruction to the jury that clearly instructs the jury on statutory principles of law that apply to the facts of a case.
It is correct that the revised Delaware Criminal Code, enacted in 1973, eliminated the doctrine of proximate cause from Delaware criminal law аnd replaced
In criminal prosecutions, the State nеed only show a “but-for” relationship between an action and a result to establish causation.17 This “but-for” causation, however, is subject to limitation when the charged conduct is reckless or negligent instead of intentional. Section 263, the State agrees, modifies the strict application of the “but-for” causation test where the actual and probable results of conduct are different. In this case, the State argues that there was no difference in the actual and probable results—an automobile collision causing a death—of Bullock driving at an excessive speed while impaired by alcohol. Thus, the State argues that despite Bullock‘s contention that Alleger‘s actions were a superseding cause of the collision, Alleger‘s negligence, in fact, is not at issue: “While [Alleger‘s] contributory negligence may bar a civil action against the person [ (Bullock) ] whose acts cause the death, it does not relieve the latter from criminal responsibility for having caused the death.”18 Implicit in the State‘s argument, of course, is the position that the charge given on causation was
Section 263, contrary to the State‘s argument, was designed for difficult cases such as this onе where a defendant contends that the actual result of his conduct is outside the risk of which he is aware. According to the commentary to the Model Penal Code, on which the Delaware Criminal Code is based, the comparison of actual and probable results must take the specific facts into account.19 Here the instructions given decidedly did not. Accordingly, the actual result should not be defined generally, as “death by collision” but more specifically, as a death which resulted in part from Alleger disregarding a red light and by entering the intersection illegally (where Bullock had the right to be) and crossing Bullock‘s lane of travel as well as from Bullock‘s actions.
Bullock concedes that he acted recklessly when he drove through the intersection at a speed nearly thirty miles per hour over the speed limit. He argues, however, that the actual result in this case of Alleger dying from a collision after Alleger disregarded a red light, differs from the probable result of Bullock speeding through an intersection on a yellow light. Bullock argues that because he had the right of way facing a yellow light, he had no duty to anticipate nor could he foresee that Alleger would fail to remain stopped at the red light. A jury could conclude, if properly charged, that the State had not established the element of reckless causation if the collision that resulted from Alleger disregarding the red light was outside the risk of which the defendant was aware and so improbable that it would occur that it would not be expected.
The State cites Storey v. Castner, Del.Supr., 314 A.2d 187 (1973)20 for the proposition that there is a higher standard of care and diligence required of a motorist entering an intersection regulated by what the State chooses to characterize as a “cautionary signal.”
In Storey, this Court held that “in the absence of circumstances which put a reasonable man on notice of impending danger, a driver on a dual highway with a green light in his favor has the right to assume that he could traverse the intersection safely and that cross traffic would
The State concedes that Bullock had the right of way but argues that when the “light had turned yellow [Bullock] had notice of impending danger.”25 The State cites Storey for the propоsition that when the light turned yellow Bullock had a “higher standard of care and diligence [that is] required when entering an intersection regulated by a cautionary signal.”26 Thus, the State argues that when the light at an intersection controlled by a traffic control signal turns from green to yellow, a motorist is placed under a higher standard of care to be aware of impending danger.
The State, however, misstates the holding of Storey. Delaware‘s motor vehicle code distinguishes intersections regulated by traffic control signals, not by the color of the light at any given moment, but by whether the lights are solid or flashing.27 In Storey, this Court stated that a motorist entering an intersection regulated by a cautionary signal has a higher standard of care and diligence, citing Carnes v. Winslow.28 A cautionary signal, however, as made clear in Storey, does not mean a solid yellow light. It means an intersection regulated by a flashing red light or a flashing yellow light.29 Indeed,
The Storey Court focused on the time in which the favored motorist was put on notice of impending danger: “The crucial point here is not so much the speed of the [favored motorist‘s] vehicle but, instead, the time when [the favored motorist] was put on notice of the impending danger.”31 The Court concluded that “[t]he speed of the [favored motorist‘s] car is then significant for the limited purpose of determining whether plaintiff had sufficient time, considering speed and distance, to take reasonable steps to avert the accident.”32 In this case, the State‘s own expert testified that only 300 feet separated the two vehicles when Alleger initially pulled out onto Route 40 and that Bullock spanned this distance in three seconds. According to Strohm, a normal person can perceive and react to a danger in 1.5 seconds. At fifty-
Storey does not impose a higher standard of care on Bullock when he entered the intersection on a solid yellow light than if he entered on a solid green light. Under these conditions, there is neither a greater nor a lesser risk that another motorist will disregard a red light and enter the intersection. Bullock had no duty to be aware of an increased risk that someone would disregard a red light just because he entered the intersection on a yellow light. He had no duty to anticipate Alleger‘s negligence nor to be aware or conscious of it as those terms are meant for the purpose of criminal liability. Because Bullock had no duty to anticipate Alleger‘s negligence, no reason to foresee it, and no time to avoid the consequences of it, a question arose whether, despite Bullock‘s speed and alleged impairment, the State had established the element of reckless causation and could thus hold Bullock criminally liable for Alleger‘s death. An instruction that did not include the language of Section 263 failed to provide the jury with the proper framework in which to assess whether under the facts in this case reckless causation had not been established. The trial court‘s duty included, regardless of what trial counsel requested or submitted, the obligation to supply the jury with a correct statement of the law in accordance with the facts of this case.
In sum, the Superior Court committed plain error by not including Section 263 in the jury instruction. Had the jury received an instruction based on Section 263, they may have concluded that despite Bullock‘s actions, that he could not be found to have recklessly caused Alleger‘s death because the result of her actions could not be expected and were outside the risk “of which [he] was aware.” Without that instruction the jury was denied the opportunity to analyze the facts fully in this case and accurately apply the law.
III
Bullock argues that the Superior Court erred by giving the jury an “unavoidable accident” instruction instead of an “accident” instruction. At the prayer conference held to discuss proposed jury instructions, the Superior Court proposed to the parties an “accident” instruction that defined “accident” as a “sudden and unexpected event occurring without intention, due to carelessness, unawareness, ignorance, or a combination of these, which produces an unfortunate result. It is an unforeseen unplannеd fortuitous event.”33 Bullock agreed to this instruction. The State, however, requested that if the Superior Court intended to provide an “accident” instruction, then it should be an “unavoidable accident” instruction. Bullock‘s counsel did not object to the “unavoidable accident” instruction, which the court ultimately provided the jury.34 In
Bullock now argues that it was plain error for the Superior Court to give the jury an “unavoidable accident” instruction. The State argues that Bullock‘s acceptance of the instruction precludes any argument that the instruction was erroneous.
During closing argument, the prosecutor argued that unavoidable accident was inapplicable in this case because the accident, in fact, could have been avoided if Bullock had not been speeding. That is, Bullock could have avoided the accident if he had not sped through the intersection of Route 40 and Pleasant Valley Road while impaired by alcohol. As the State‘s own expert opined, however, even if Bullock had not been speeding he would have been unable to avoid the collision as a result of Alleger disregarding the red arrow. In fact the accident could have been avoided if Alleger had remained stopped at the red signal as she was legally charged to do. Bullock argues that the “unavoidable accident” instruction incorrectly placed a higher standard of care on him because an unavoidable accident is “one which could not have been avoided through the exercise of proper care. If the defendant exercised the care and skill which the law require, then in truth the accident is unavoidable and the defendant is not guilty.”36 Bullock argues that the “accident” instruction should have been given because it “correctly recognized that even if [Bullock] had not been acting as a reasonable person, the accidental circumstances of the collision could negate either or both the culpable state of mind and the voluntariness of the act.”37
In this case, based on the facts of the accident as reconstructed by the State‘s own expert, there can be no intelligent basis for an “unavoidable accident” theory. The instruction distorted the focus of the case away from the two drivers’ negligent and reckless actions, respectively. It inappropriately suggested that a collision in which two drivers actively participated carelessly and recklessly, respectively, could somehow have been avoided instead of focusing the jury‘s attention on the extent to which the result of their respective conduct could be so readily foreseeable that it would warrant criminal liability.
One cannot doubt that a jury would find Bullock guilty based on the unavoidable accident instruction given. The State‘s argument that Bullock‘s acceptance of the unavoidable accident instruction obviates any argument that the instruction was incorrect is unpersuasive. Implicit in every jury instruction is the fundamental principle that the instruction applies to the specific facts in that particular case and contains an accurate statement of the law. Simply because the parties in a case agree on a particular set of instructions, does not excuse the trial judge‘s duty to give proper instructions.
CONCLUSION
The failure to give an instruction based upon Section 263 undermined the jury‘s ability to assess whether, given Bullock‘s actions, reckless causation was nonetheless not established and to conclude that he should not be held criminally liable because he was unaware of the risk that Alleger would disregard a red arrow and collide with his truck while he was properly in the intersection. Without that instruction, the jury lacked the proper framework in which to analyze the facts in this case. The jury could well have found that Bullock had been speeding, been impaired and entered the intersection on a yellow signal but nevertheless was not aware of the probability that or should not be charged with anticipating that Alleger would disregard a red arrow and collide with his truck. Further the unavoidable accident instruction inappropriately and improperly shifted the jury‘s focus from causation, the heart of the case, to an examination of whether a negligently operated vehicle‘s collision with a recklessly operated vehicle could be unavoidable. Given the complex issue of causation in this case, it was crucial that thе jury receive a proper, clear and complete instruction on reckless causation consistent with the framework for analysis described in
VEASEY, Chief Justice, concurring.
I concur in the holding of the majority that there was plain error in the failure of the trial court to provide the jury with a correct statement of the law in accordance with
Nevertheless, I share the dissent‘s concern regarding undue expansion of the plain error rule. I write separately to explain why the result in this case does not expand plain error review beyond the circumscribed limits set forth in our plain error jurisprudence.
If objection is not made at trial, we will not grant relief unless an appellant shows plain error.40 That error must be obvious to the appellate court and must result in fundamental prejudice to the defendant. Accordingly, not all errors amount to plain error.41
Notes
The element of reckless or negligent causation is not established if the actual result is outside the risk of which the defendant is aware or, in the casе of negligence, of which the defendant should be aware unless:
(1) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or
(2) The actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a bearing on the actor‘s liability or on the gravity of the offense.
The mere fact that a death or injury occurred does not mean that the defendant was reckless or criminally negligent in his conduct. The law recognizes that there may be an unavoidable accident for which no person is criminally responsible. Such an accident is one which could not have been avoided through the exercise of proper care. If the defendant exercised the care and skill which the law require, then in truth the accident is unavoidable and the defendant is not guilty. However, the fact that you may find that the defendant failed to exercise the care and skill required does not mean the defendant is guilty unless you believe beyond a reasonable doubt that the defendant acted in a reckless or criminally negligent manner. Appx. to Appellant‘s Op. Br. at A-39.
Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process. Furthermore, the doctrine of plain error is limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice.
The burden of showing plain error lies with the appellant.43 Even when an appellant has carried this burden, under the terms of
This is one of those rare cases where the judge had a heightened duty to “get it right” when settling on what to tell the jury about the law. The plain error jurisprudence has limits. I do not say that in every case a materially incorrect jury charge will constitute plain error per se. But certainly this is a case where wе must find plain error.
Our plain error review must be applied in conjunction with the imperative that a jury be given clear and correct guidance. A defendant is “entitled” to a “correct statement of the substance of the law.”45 We have stated that “[t]he primary purpose of jury instructions is to define with particularity the factual issues, and clearly to instruct the jury as to the principles of law which they are to apply in deciding the factual issues involved in the case before them.”46 Moreover, “jury instructions
In Culver v. Bennett,48 a tort action, the appellants argued for the first time on appeal that the jury instructions had erroneously and confusingly “presented the jury with two separate and conflicting rules of legal causation“: the “substantial factor rule” and the “but for” rule.49 Analyzing whether it was plain error to use the term “substantial factor” notwithstanding Delaware‘s “common law adherence to the ‘but for’ rule of proximate cause,” this Court noted that “this case presents questions of first impression concerning the proper construction of Delaware‘s modified comparative negligence statute.”50 The Court determined that under Delaware law “the use of the term ‘substantial factor’ was erroneous and a deficiency which undoubtedly undermined the jury‘s ability to intelligently perform its duty....”51 Similarly, in Probst v. State,52 the appellant argued for the first time on appeal that the jury instruction was inadequate because it confusingly used male pronouns to refer to a female defendant in a case in which the actions of the defendant‘s brother were also critical.53 Under plain error review, we found that the “jury instructions were erroneous as a matter of law.”54
There is tension between the plain error rule, which limits our review of objections not made at trial, and the principle that a defendant is entitled to a correct statement of the law.55 Application of the plain
An additional consideration exists when the legal issue presented for the first time on appeal is one of first impression. Our plain error review has been sensitive to the desirability of addressing such issues in order to provide guidance to future litigants59 and to the related consideration of relieving the appellant from forfeiture arising in part from lack of clarity in the law, assuming that all elements of the plain error standard are satisfied.60
These considerations are present in this case involving jury instructions on a very complex and potentially confusing substantive law issue not previously addressed by this Court. Moreover, this is a very serious homicide case involving this defendant‘s conviction of a class C felony and his sentence to five years at Level V, suspended after one year for declining levels of probation. As noted in the majority opinion, this Court has not decided any cases concerning the correct application of
These problems are currently dealt with as issues of “proximate causation” and present enormous difficulty (especially in homicide) because of the obscurity of that concept. Rather than seeking to systematize the varying and sometimes inconsistent rules in the numerous areas in which the problem has arisen, the section undertakes a fresh approach to the central issues.
* * *
[This section] deals with situations in which the actual result involves the same kind of injury or harm as that designed or contemplated, but in which the precise injury inflicted was different or occurred in a different way. Here the Code makes no attempt to catalogue the possibilities—intervening or concurrent causes, natural or human, unexpected physical conditions; distinctions between mortal and nonmortal wounds; and so on. It deals only with the ultimate criterion by which the significance of such factors ought to be judged—whether the actual result is too remote to have a [just] bearing on the actor‘s liability or on the gravity of his offense.
* * *
In general, the infinite variety of contexts in which the issue can arise precludes an advance catalogue of premises that can be used mechanically to deduce a solution. The issue should be put to the jury in terms of a general principle that articulates the ultimate basis of judgment.
* * *
While it is true that the Model Code‘s formulation does not give a definitive resolution to most difficult cases, it has the twofold advantage of avoiding the confusing language of “proximate causation” and presenting clearly to the jurors the issues they should properly consider. It also casts aside the sometimes arbitrary distinctions of the common law. Hence, while one should not expect too much of the Code‘s general statutory formulation in an area as complex as this, such a formulation has significant advantages over no formulation at all....
Commentary to Section 2.03 of the Model Penal Code at 255-56, 261, 262, 265-66.
In my view, the “enormous difficulty” sometimes engendered by this issue, combined with the fact that it is one of first impression in this Court in a serious criminal case, tips the balance toward a finding
WALSH, Justice, with whom BERGER, Justice, joins, dissenting.
The majority concludes that the trial court erred: (i) in failing, sua sponte, to instruct the jury concerning the application of
The facts surrounding this fatal accident are relatively uncomplicated. The State presented evidence that Bullock, who had been drinking and exceeding the speed limit, accelerated while approaching an intersection where a traffic device displayed a yellow warning signal. The victim was making an illegal left turn in the face of a red light when her vehicle was struck by Bullock‘s vehicle. The State conceded that the decedent was partially at fault,63 but claimed that Bullock‘s conduct was reckless and that such recklessness was a proximate cause of the accident. The defendant argued that the decedent‘s conduct was the sole proximate cause of the accident. The jury was instructed on “but-for” causation, recklessness and criminal negligence. Specifically, the jury was instructed that in order to find the defendant guilty of manslaughter it must be satisfied beyond a reasonable doubt that he “was aware of and consciously disregarded the risk that his conduct would cause death and also that the risk was so great that a reasonable person under the circumstances would have acted otherwise to avoid the risk.” The jury found Bullock guilty of manslaughter and implicit in that verdict was the determination that the actual result of his conduct was foreseeable and that Alleger‘s conduct did not affect that foreseeability. The majority decision nullifies the verdict on the ground that the jury did not “receive proper, clear and complete instructions on reckless causation.” But the content of those instructions were never disputed at trial. The trial judge conferred with counsel, prior to argument to the jury for the purpose of receiving requests for specific instructions, as required by
THE COURT: The jury may not buy into the accident defense, but the question is has enough evidence been adduced to warrant the giving of an accident instruction
MR. RADULSKI: I believe so, Your Honor. I don‘t really think it matters how fast he was going. If she runs a red light, the jury could conclude that, hey, there‘s no way he could have avoided that.
THE COURT: I think it does matter how fast he‘s going, but I think we‘ll hear about that in closing arguments. The slower the movement the more avoidable the accident.
The prosecutor commented that the court‘s proposed instruction was “incredibly confusing” and offered a form of instruction on unavoidable accident that had been developed by a jury instruction study group of Superior Court practitioners. The trial judge, noting that the State‘s proposed instruction was more appropriate for a motor vehicle type accident, inquired of defense counsel whether he had any objection to the State‘s proposed instruction. Defense counsel stated that not only did he not have an objection but commented that it was “more attractive than the Court‘s.” In reliance upon that reprеsentation, the trial court so instructed the jury. Neither the defendant nor the State thereafter raised an objection to the court‘s jury instructions.
Following conviction, Bullock filed a “motion for judgment of acquittal/new trial” asserting that the jury‘s verdict was against the weight of the evidence. Again, Bullock alleged no error in the court‘s instruction to the jury nor sought any relief in that respect. To put the present claims of error in perspective, the appellant seeks the intervention of this Court for alleged errors in jury instruction that, contrary to the requirements of Super. Ct. Crim. R. 30, he either failed to request or affirmatively sought and never brought to the attention of the court at trial or in a post-trial motion for a new trial. Thus, we are being asked to review claims that the defendant had the opportunity to present, but did not, on three occasions to the trial judge: (i) at the instruction conference, (ii) before the jury deliberated and (iii) in a post-trial motion for a new trial. This Court‘s definition of plain error was articulated in Wainwright v. State, Del.Supr., 504 A.2d 1096, 1100 (1986), cert. denied, 479 U.S. 869, 107 S.Ct. 236, 93 L.Ed.2d 161.65
Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process .... [T]he doctrine of plain error is limitеd to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice.
In cases involving a defendant‘s failure to object to jury instructions, it has been held that the defendant‘s approval or submission of the instruction constitutes a waiver. See United States v. Griffin, 7th Cir., 84 F.3d 912, 924 (1996) (stating that waiver must arise out of voluntary affirmative conduct and finding waiver where defendant‘s attorney approved the claimed improper instruction); Lakich, 23 F.3d at 1207 (finding that submission of jury instruction by defendant‘s counsel was insufficient to preserve issue and holding that counsel‘s express agreement with the instruction constituted waiver); but see United States v. Bailey, 7th Cir., 227 F.3d 792 (2000) (finding no intentional relinquishment of right to object to jury instruction on appeal where defense counsel made an objection at trial to proposed instruction but argued on appeal the instruction was improper for reasons different from those previously cited).
This Court has also made clear that the failure of counsel to object to a jury instruction cannot be the basis for plain error as long as the jury instruction is a correct statement “of the substance of the law.” Grace v. State, Del.Supr., 658 A.2d 1011 (1995). In Grace, we noted that the fact that the court‘s instruction “differed from the desired instruction is irrelevant” and emphasized that it was the defendant‘s “responsibility to object to the instructions” and the failure to do so constitutes waiver. Id. at 1014. Again, in Chance v. State, Del.Supr., 685 A.2d 351, 360 (1996) this Court ruled that the omission of an accomplice liability instruction which
A practical consequence of today‘s ruling will be that a trial judge attempting to craft jury instructions acceptable to the parties, and reflecting a correct statement of the law, will be at a serious disadvantage. Counsel‘s acquiescence in proposed instructions and failure to object before the jury retires will not serve to insulate the result from a claim of plain error. Not only will Rule 30 become meaningless but its violation, as here, will provide the very basis for appeal. Reversing a triаl judge on the basis of an issue he or she did not have an opportunity to consider should be limited to egregious errors, not those involving the omitted subtleties of jury instructions or the giving of an instruction in the precise form requested by counsel. As one court noted:
In our adversarial system, so long as the proceeding is conducted within the bounds of fundamental fairness, it is not the duty of the trial court to anticipate and evaluate every possible error that might be alleged. Rather, it is the role of counsel to bring such matters to the court‘s attention.
United States v. Thornberg, 8th Cir., 844 F.2d 573, 575 (1988).
While arguably
I recognize that there may be unusual situations where the absence of a constitutionally-required portion of a jury instruction cannot be deemed as waived by counsel‘s action or inaction. But the remedy for such egregious error may be a claim of plain error in a direct appeal or a claim of ineffective assistance of counsel under
Under federal jurisprudence, the difference between harmless error and plain error is that for plain error, “it is the defendant who bears the burden of persuasion with respect to prejudice.” Olano, 507 U.S. at 734. See
In undertaking this evaluation, the jury instructions must be viewed as a whole. See Flamer v. State, Del.Supr., 490 A.2d 104, 128 (1984). Although some inaccuracies may appear in the jury instructions, this Court will reverse only if such deficiency undermined the ability of the jury “to intelligently perform its duty in returning a verdict.” Storey v. Castner, Del.Supr., 314 A.2d 187, 194 (1973), quoted in Flamer v. State, 490 A.2d at 128. See also Newnam v. Swetland, Del.Supr., 338 A.2d 560, 562 (1975). A trial court‘s charge to the jury will not serve as grounds for reversible error if it is “reasonably informative and not misleading, judged by common practices and standards of verbal communication.” Baker v. Reid, Del.Supr., 57 A.2d 103, 109 (1947), quoted in Flamer v. State, 490 A.2d at 128.
Probst, 547 A.2d at 119 (footnote omitted).
At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to all parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. The court may instruct the jury before or after the arguments are completed or at both times. All instructions shall be givеn by the court orally. In capital cases the court shall, and in other cases the court may, give the jury a copy of the instructions for use during deliberations. No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before or at a time set by the court immediately after the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on the request of any party, out of the presence of the jury. (emphasis supplied)