Lewis v. StateLewis v. State
Andrew J. Vella, Esquire, Department of Justice, Wilmington, Delaware, for Plaintiff Below, Appellee, State of Delaware.
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ, Justices, constituting the Court en Banc.
SEITZ, Justice:
I. Introduction
In this appeal, we must determine whether the Grand Jury properly indicted the defendant for a crime under a criminal statute mistakenly repealed by the General Assembly. The appellant, Kahlil Lewis, argues that the Grand Jury improperly indicted him for an additional crime as part of a renewed indictment incorporating earlier charges because the General Assembly repealed the statute covering the added crime before he was re-indicted. The General Assembly discovered the mistake but did not re-enact the repealed subsection until after the re-indictment.
We hold, consistent with decisions interpreting a similar federal saving statute, that Delaware‘s criminal saving statute permits the State to prosecute crimes under a repealed criminal statute when the crimes were committed before the statute‘s repeal. Because Lewis committed the crime before the statute was repealed, he was still subject to prosecution undеr the later repealed statute. Lewis also raises other arguments on appeal that we address below. We find all of his arguments to be without merit, and affirm.
II. Facts And Procedural Background
On April 27, 2013, Lewis drove to the 600 block of Jefferson Street in Wilmington in search of people who attacked his friend the day before. When he arrived, Lewis found several adults and children hanging around the street. Words were exchanged, and shots were fired. During the exchange of gunfire, one of the people on the street, Toney Morgan, was shot dead. Witnesses claimed they saw Lewis shoot Morgan. Lewis was also shot in the face, though it was never established who shot him.
On June 24, 2013, the Grand Jury indicted Lewis on charges of second degree murder, two counts of possession of a firearm during the commission of a felony, first degree reckless endangering, and possession of a firearm by a person prohibited. On December 18, 2013, the State filed an information charging Lewis with an additional crime, possession of a firearm by a person prohibited—negligently causing death, a violation of
Lewis went to trial in January 2014. The State pursued only the reckless endangering, possession of a firearm during the commission of a felony, and the
In March 2014, while wаiting for the court to rule on a motion for judgment of acquittal, Lewis sent a letter directly to the court that raised for the first time whether the repeal of
III. Standard Of Review
Questions of statutory construction at issue in this case are issues of law and reviewed de novo.2 We review claims of error not properly preserved in the trial court for plain error.3 We review the sentencing of a criminal defendant for abuse of discretion.4
IV. Discussion
Lewis raises four arguments on appeal. First, he argues the Superior Court should have dismissed the
a. The Delaware Criminal Saving Statute Allowed The State To Indict Lewis For A Violation Of § 1448(e)(2)
Lewis first argues that he was not properly indicted for possession of a deadly weapon by a person prohibited—negligently causing death because at the time of the re-indictment,
The criminal saving statute,
(a) The repeal of any statute creating, defining or relating to any criminal offense set forth under the laws of this State, shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as remaining in full force and effect for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.
(b) Any action, case, prosecution, trial or other legal proceeding in progress under or pursuant to any statute relating to any criminal offense set forth under the laws of this State shall be preserved and shall not become illegal or terminated in the event that such statute is later amended by the General Assembly, irrespective of the stage of such proceeding, unless the amending act expressly provides to the contrary. For the purposes of such proceedings, the prior law shall remain in full force and effect.
The Superior Court rejected Lewis’ argument and noted that under
We disagree with the Superior Court‘s interpretаtion of the saving statute because it fails to account for important qualifying language in
Although the Superior Court misinterpreted the saving statute, in the end it reached the right result. We have not addressed before whether Delaware‘s criminal saving statute allows the State to charge a defendant under a repealed statute for a crime that occurred before repeal. To answer the question we look to what the General Assembly intended when it used the word “sustain” when referring to a prosecution under the saving statute.
Fortunately, we have a legislative expression of intent behind the saving statute. In enacting the statute, the General Assembly intended that “legislative revision to the criminal code ... not have the unintended consequence of repealing an existing law, thus ending a prosecution for conduct which occurred prior to the repeal.”6 In other words, the General Assembly intended that criminal liability, once incurred under an existing statute, not be extinguished by repeal absent an explicit legislative statement to the contrary. Although the General Assembly spoke in terms of “ending a prosecution,” commentators have noted that saving statutes are intended to “alleviate the hardships and to rectify the injustices of the common-law rules of construction as they relate to the effect of the repeal of a statute,” and “continue repealed statutes with respect to past activity and pending legal actions.”7 Thus, consistent with the foregoing, we interpret the words “sustaining any proper action or prosecution” to include prosecutions for crimes committed before a criminal statute is repealed, regardless of the timing of the information or indictment.8
Our interpretation of Delaware‘s saving statute is supported by the federal savings statute. Delaware‘s saving statute was “modeled in part upon federal law.”9 The federal statute,
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
Federal courts have held that “to sustain” a prosecution under the federal saving statute includes the right to bring a new action to enforce criminal liability that occurrеd while a repealed statute was in force.10
Accordingly, under
Lewis also contends that the Grand Jury‘s re-indictment two weeks before trial caused him prejudice. Because the argument was not raised below, we review the issue of prejudice for plain error. For error to be plain, it must be “so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.”11 In addition, “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.”12
To support his position, Lewis cites Superior Court Criminal Rule 7(e):
The court may permit an indictment оr an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
As is plain from its wording, Rule 7(e) only applies to amendments of an information or indictment granted by the court, not a re-indictment by a Grand Jury. Here, the Superior Court did not permit amendment of Lewis’ indictment. If Lewis believed he would be prejudiced by having to defend the
b. Lewis’ Prior Felony Conviction Was Properly Admitted
Lewis argues that during cross-examination by the State, the State should not have questioned him about his prior felony drug conviction. Lewis also contends that the prosecutor should not have referenced his conviction in closing argument, and the Superior Court should not have included it in the jury instructions. Because Lewis did not object to any of these instances of alleged error, once again our review is for plain error.13
Lewis points to three references to his prior felony conviction made during trial. The first reference occurred during cross-examination by the State:
Q. You‘re a convicted felon; correct?
A. Yes, I am.
Q. And you were convicted in Delaware in 2012 of drug dealing; right?
A. Yeah, that‘s a funny thing.
A. Yeah.
You‘re familiar with your law though, right? You know that they changed the law in 2008 that if you get caught with one bag of weed or more than one bag of weed, they сharge you—
THE COURT: Mr. Lewis, please. Mr. Lewis, just answer the question so we don‘t take more time than we need—
THE WITNESS: But it sounds worse that it is, Your Honor, because I only got caught with probably like five bags for use.
THE COURT: Next question, please.14
The second reference to the 2012 conviction occurred when, during closing arguments, the prosecutor stated that Lewis was “a convicted drug dealer, which prohibits him from possessing a firearm.”15 Finally, the third reference was in the jury instructions, in which the court reiterated that Lewis had been convicted of possession with intent to deliver heroin in 2012.16
The Superior Court did not plainly err by allowing reference to Lewis’ prior drug conviction. As a convicted drug dealer, Lewis was a person prohibited from possessing a firearm.17 His conviction for drug dealing was an element of the crime and thus the jury was entitled to hear the evidence.18 Further, because Lewis elected to testify, his credibility could be impeached under Delaware Rule of Evidence 609 by reference to prior felony cоnvictions.19 We have held that, in challenging the credibility of a witness, as happened here, “a cross-examiner may inquire: (1) whether a witness previously has been convicted of a felony or crime of dishonesty; (2) if so, what those crimes were; and (3) where and when those convictions were obtained.”20
The prosecutor also properly referred to Lewis’ drug dealing conviction in closing argument. One of the purposes of closing argument is to sum up the evidence and present thе jury with a clear picture of the State‘s theory of the case; namely, that it has proven each element of the crime beyond a reasonable doubt.21 Here, because Lewis’ status as a person prohibited by reason of his felony conviction was an element of the crime, the prosecutor could properly recite that stipulated fact in his closing argument. The prosecutor did not go beyond this permissible purpose in his
Accordingly, the references to Lewis’ prior conviction were proper and did not constitute plain error.
c. The Superior Court Properly Refused A Self-Defense Instruction
Lewis asked for a choice-of-evils instruction before trial, and argued that he did not have a gun just before the shooting but that once he felt his life was threatеned by a person with a gun, he wrestled the gun away from that person.24 The Superior Court agreed with Lewis that a choice-of-evils instruction was appropriate, and gave the instruction. Lewis now claims a self-defense instruction was also appropriate for the
The State charged Lewis with possession of a firearm by a person prohibited—negligently causing death. The еlements of the crime are (1) possession of a firearm (2) by a person prohibited and (3) negligently causing the death of another with the firearm.25 The self-defense doctrine permits the intentional use of force in response to a reasonably perceived threat of imminent bodily harm.26 The defense therefore requires the conscious perception of a threat and the intentional resort to force. But negligent homicide requires only negligence—a mental state that involves merely failing to exercise the care of an ordinary prudent person under the circumstances.27 It would thus make no
d. The Superior Court Did Not Abuse Its Discretion In Sentencing Lewis
Lewis argues the Superior Court abused its discretion by sentencing him with a closed mind. He points to various mitigating facts, such as Lewis’ traumatic childhood, extreme poverty, and the fact that he was shot during the altercation. To disturb a sentence on appeal, the defendant must show either that it was an illegal sentence or that it was “based on factual predicates which are false, impermissible, or lack minimal reliability, judicial vindictiveness or bias, or a closed mind.”28 “A judge sentences with a closed mind when the sentence is based on a preconceived bias without consideration of the nature of the offense or the character of the defendant.”29
Lewis’ counsel presented the mitigating facts that he now claims the court ignored. The Superior Court was aware of those factors, but nevertheless believed that a longer sentence was appropriate because of other aggravating circumstances that Lewis now ignores. Specifically, Lewis was on probation at the time of the crime, knew he was not supposed to possess a firearm, and yet did have a firearm and killed Morgan with that firearm.30 The Superior Court properly exercised its discretion when it found that the aggravating factors outweighed the mitigating factors. Because the sentence imposed was not illegal and Lewis has failed to show how the court was biased or otherwise abused its discretion, his final argument is without merit.
V. Conclusion
Because Lewis’ prosecution and conviction under