Perrera v. State

• Court: Supreme Court of Delaware
• Decided: May 31, 2023
• Docket: 348, 2022
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

DAVID PERRERA, § § Defendant-Below, § Appellant, § No. 348, 2022 § v. § Court Below: Superior Court § of the State of Delaware STATE OF DELAWARE § § Cr. ID Nos. 2005002146B Appellee. § 2005002146A

Submitted: May 17, 2023 Decided: May 31, 2023

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

Upon consideration of the parties’ briefs and the record on appeal, it appears

to the Court that:

(1) After a bench trial in the Superior Court, the trial judge found David

Perrera guilty of Possession of a Firearm by Person Prohibited (“PFBPP”) and

Possession of Ammunition by Person Prohibited (“PABPP”). Perrera did not testify,

and the trial judge did not conduct a colloquy exploring whether Perrera knowingly

and intelligently waived his right to testify. On appeal, Perrera argues that, under

the U.S. Constitution, the Superior Court was required to conduct a colloquy. We

disagree and affirm the convictions. (2) On May 9, 2020, a Dover police officer arrested Perrera for illegal

possession of a gun and its accidental firing in a grocery store parking lot. A Kent

County Grand Jury indicted Perrera and charged him with PFBPP, PABPP, Reckless

Endangering First Degree, Criminal Mischief, and Unlawful Discharge of a Firearm

Within a City. Perrera filed a motion to sever the person prohibited charges (“Case

B”) from the other charges (“Case A”). The court granted the motion.

(3) In the Case A trial, the jury found Perrera guilty of Unlawful Discharge

of a Firearm Within a City and acquitted him of Reckless Endangering and Criminal

Mischief. Perrera waived his right to a jury trial in Case B. On the same day of the

jury verdict, the trial judge found Perrera guilty of the person prohibited charges.

(4) At the Case A trial, Perrera waived his right to testify after the trial

judge conducted a colloquy into the waiver of that right. At the Case B trial, Perrera

stipulated to the admission of evidence in the Case A trial, did not testify, and did

not present a defense. The trial judge did not conduct a colloquy into Perrera’s

waiver of his right to testify.

(5) On appeal, Perrera argues that the trial judge’s failure in the Case B trial

to conduct a colloquy into the waiver of his right to testify in his defense violated

the U.S. Constitution. Even though the argument was not raised below, “[a]

deprivation of fundamental constitutional rights . . . like the right to testify in a

2 criminal case in one’s defense, can be considered structural errors that are reviewed

de novo on appeal.”1

(6) In Thomas, a decision issued a few months after the parties filed their

briefs, this Court addressed whether a colloquy is required into a criminal

defendant’s waiver of his right to testify. Following a guilty verdict after a bench

trial, Thomas argued that “the Superior Court erred by failing to raise with [him] his

right to testify and failing to ensure that his waiver of the right to testify was

voluntary, knowing and intelligent.”2 During trial, the defense rested without calling

witnesses. Thomas “did not ask to testify, and his counsel did not raise the issue

with the court. There was no colloquy with Thomas about his right to testify or his

waiver of the right.”3

(7) We held that “[w]e are persuaded by the greater weight of authority

that, as a federal constitutional matter, a colloquy is not required.” We reasoned that

a colloquy requirement could “inappropriately influence the defendant to waive his

[or her] constitutional right not to testify”4 and interfere with trial strategy and

intrude on the attorney-client relationship. We also noted that the inappropriate

1 Thomas v. State, 2023 WL 2058568, *2 (Del. Feb. 17, 2023). 2 Id. at *1. 3 Id. 4 Id. at *3 (alteration in original). 3 influence concern is heightened in a bench trial, where the colloquy with the trial

judge could be misunderstood by the defendant.

(8) The outcome here is the same. Like Thomas, the Case B trial was a

bench trial; the defense called no witnesses to testify; Perrera did not ask to testify;

and Perrera’s counsel did not raise the issue with the court. Also, there were no

unusual circumstances that might have caused the court to conduct a colloquy.5

Under Thomas, the Superior Court was not required to conduct a colloquy into

Perrera’s waiver of his right to testify.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT: /s/ Collins J. Seitz, Jr. Chief Justice

5 See Id. at *2 (“The question before us is not, however, whether there is a constitutional right to testify in one’s defense in a criminal trial. Clearly there is. Also not before us is a self-represented defendant laboring under a misunderstanding of his right to testify, a defendant who demands to testify and is prevented from testifying, or a defendant who has a conflict with his counsel about whether to testify.”). 4