Brooks v. State

40 A.3d 346, 2012 WL 600810
Supreme Court of Delaware·Decided February 23, 2012·No. Nos. 415, 2008, 596, 2010·Published·Cited by 31 cases

Opinion

STEELE, Chief Justice:

This Court consolidated two appeals concerning accomplice testimony to determine whether a trial judge must give a cautionary instruction on testimony offered by a witness who claims to have been the defendant’s accomplice, even if the defense does not request it, and to determine the appropriate content of an accomplice instruction. We hold that a trial judge who fails to give an instruction about accomplice testimony commits plain error. We further hold that trial judges must give a modified version of the instruction from Bland v. State1 whenever the State offers accomplice testimony against the accused. Combined, these two holdings provide clear guidance to trial judges: give the modified Bland instruction or commit plain error.

I. PROCEDURAL POSTURE

After hearing oral argument on the cases of Rashan Owens and Ronald Brooks within a week of one another, this Court consolidated the cases for supplemental briefing addressing two questions:

(1) Should the Court adopt a bright line rule that it is plain error not to give a cautionary instruction on the testimony of an accomplice? See, e.g., United States v. Hill, 627 F.2d 1052 (10th Cir. 1980); United States v. Shriver, 838 F.2d 980 (8th Cir.1988).
(2) This Court’s suggestion for an accomplice credibility instruction in Bland v. State, 263 A.2d 286 (Del.1970), is over forty-one years old. Please suggest updates to that instruction so that all issues relating to accomplice testimony are addressed in a single instruction.2

This opinion answers those questions and resolves both appeals.

II. DISCUSSION

Trial judges must give a modified version of the instruction recommended in Bland v. State3 whenever a self-identified accomplice testifies. This broad rule simplifies a trial judge’s task. Judges need not consider any problems associated with determining whether independent evidence corroborates the witness’ testimony. This rule also frees judges from deciding whether to give an instruction about accomplice testimony in the absence of a request from defense counsel. Further, trial judges no longer need consider the appropriate content of an instruction about accomplice testimony.

Making this version of the Bland instruction mandatory not only simplifies an unnecessarily complicated area of the law, but also eliminates the potential for litigation gamesmanship. If it is unclear whether the trial judge should offer to give an instruction on accomplice testimony in the absence of a request for an accomplice instruction, then a defense attorney could avoid asking, knowing that if the defendant [349] loses the trial he will have at least an arguable issue concerning ineffective assistance of counsel on appeal.

Although today we make a modified version of Bland mandatory for judges whenever a witness who claims to be an accomplice offers testimony, the law has not always been so simple. In the years after Bland, multiple cases tested this Court’s loyalty to the precise verbal formulation described in Bland. Specifically, in Cabrera v. State4 and then in Bordley v. State,5 this Court denied direct appeals in which the defendants complained that trial judge departed from the language in Bland. In both cases, the Court rejected challenges to the instructions finding accomplice testimony instructions acceptable so long as they are accurate and adequately explain the potential problems with accomplice testimony.6 In Soliman v. State,7 this Court reaffirmed its insistence that judges need not give the instruction from Bland, so long as they provide an accurate summary of the law. The Court therefore denied an appeal contending that the trial judge committed plain error by giving an instruction each side conceded was accurate.

More recently, this Court held in Smith v. State8 that a lawyer who fails to request any instruction on accomplice liability deprives the accused of the effective assistance of counsel. In Smith, we acknowledged that this Court had, in the past, given “considerable latitude in formulating the language of an accomplice testimony instruction....”9 But Smith seemed to indicate a departure from our historical ambivalence about whether trial judges should follow the precise wording of Bland: “[Although in Bordley we held that the pattern jury instruction on accomplice credibility was a correct statement of the law, we now hold that the best practice is to give the Bland instruction on accomplice liability rather than the pattern jury instruction given in Bordley.”10

Our ruling in Hoskins v. State11 diminished much of the force of Smith. In Hoskins, this Court rejected the proposition that a trial judge commits plain error by failing to give any accomplice testimony instruction when he is not asked to give one.12 As a result, the law today seems [350] unnecessarily complex. Smith strongly suggests that defendants are deprived of the effective assistance of counsel if counsel fails to request the Bland instruction on accomplice testimony. Hoskins suggests that a judge does not commit plain error by failing to give the Bland instruction, but openly invites a later motion about ineffective assistance of counsel premised on this same issue. Today we resolve this unnecessarily convoluted area of the law. We overrule all those cases that permit deviations from Bland, and replace this legal thicket with a clear path for trial judges to follow.

Any time a witness who claims to be an accomplice testifies, judges must give the following instruction:

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Brooks v. State, 40 A.3d 346, 2012 WL 600810 (Del. 2012).

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