Opinion
No. 9908006808
Submitted: November 5, 1999
Decided: February 11, 2000
Upon consideration of Defendant's Motion For Bill of Particulars
DENIED
Stephen R. Welch, Jr., Esq., Dover, Delaware. Attorney for the State.
Michael J. Malkiewicz, Esq., Dover, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the defendant's motion for a bill of particulars, the arguments of counsel, and the record in this case, it appears that:
1. The defendant, John E. Block, is charged with Rape in the Third Degree, Sexual Solicitation of a Child, Unlawful Sexual Contact in the Second Degree and Endangering the Welfare of a Child. He has moved the Court for an order requiring the State to provide him with a bill of particulars. The State did voluntarily provide the defendant with a bill of particulars, but the defendant argues it is insufficient for the purpose of preparing his defense. Because the defendant has already obtained at a preliminary hearing all the information which can be reasonably sought by a bill of particulars, the motion is denied.
2. Mr. Block is accused of committing the above mentioned sexual offenses against a minor, female victim who is described as being mildly retarded. Although she is fifteen years old, she possesses the mental capacity of an eight-year old child. The alleged crimes took place on or about August 6, 1999. Defendant seeks disclosure of the exact location where the alleged crimes occurred, the type of sexual intercourse or contact perpetrated, the manner of sexual solicitation, the specific act which endangered the welfare of the victim and the type of harm resulting from the proscribed acts. In the bill of particulars which the State did file, it answered that the alleged offenses took place at the defendant's residence and referred the defendant to 11 Del. C. § 761 for definitions of sexual intercourse and sexual contact. The State further responded by stating the alleged sexual offenses are the acts which endangered the victim's welfare and it was not required to state with specificity the manner in which the victim was injured.
3. Block argues the information he seeks is necessary for the preparation of his defense and the bill of particulars is the appropriate method by which to acquire it. The State rebuts this assertion by arguing it is not obligated to provide the additional information beyond that which has already been provided in the indictment and the bill of particulars nor can it be compelled to "freeze its case' in advance of trial.
4. An indictment serves to notify a defendant of what he must defend against and also serve as a shield against the possibility of double jeopardy. Accordingly, it is adequate so long as it informs the defendant of the facts and charges against him sufficient to enable him to prepare for his defense. Essentially, a bill of particulars provides supplemental information. It serves to protect a defendant against unfair surprise at trial and prevent subsequent prosecutions for an insufficiently described offense. Basically, it fills in any informational gaps missing in the indictment which then allows the accused to develop his defense. However, while the prosecution is generally limited to proving those facts included in the bill of particulars, the State's case is not "frozen" prior to trial by it. While a bill of particulars is designed to clarify the allegations, it is not meant to compel the State to disclose its theory of the case or evidentiary information. "A bill of particulars may not serve as a discovery device and defendants may not use a bill of particulars to circumvent the rules governing discovery." The decision to grant a motion for a bill of particulars rests within the sound discretion of the court. Accordingly, the deciding court weighs the competing interests of the defendant who seeks additional information for purposes of preparing a defense versus the State's interests in protecting witnesses or not "commit[ting] itself to a specific version of the facts before it is in a position to do so."
State v. Banther, Del. Super., No. IK97-05-0094, Ridgely, P.J. (April 2, 1998) (ORDER), quoting State v. Gardner, Del. Super., Cr.A. No. IN93-O1-0854, Toliver, J. (Aug. 24, 1993) (Op. and Order).
Id.
Lovett v. State, Del. Supr., 516 A.2d 455, 467 (1986).
Lovett, 516 A.2d at 467, citing United States v. Cantu, 5th Cir., 557 F.2d 1173, 1178 (1977); cert. denied, 434 U.S. 1063 (1978).
State v. Traekner, Del. Super., 314 A.2d 202, 208 (1973).
Lovett, 516 A.2d at 465.
United States v. Hajecate, 683 F.2d 897 (1982); State v. Strughold, Mo. Ct. of Ap., 973 S.W.2d 876, 890 (1998).
Banther at 1.
Super. Ct. Crim. R. 7(f); State v. Banther, Del. Super., No. 9705000270, Ridgely, P.J. (April 2, 1998) (ORDER).
Id., quoting United States v. Rosa, 3d Cir., 891 F.2d 1063, 1066 (1989).
5. In order to put the defendant's request for a bill of particulars in context, it must first be noted that a preliminary hearing was conducted in this matter. At the hearing, a testifying police officer gave the following account of the complaint which led to the defendant's arrest. On Friday, August 6, at about noon or 1:00 p.m., the alleged victim went to the defendant's house to play with the defendant's daughter, who was twelve years old. They lived only a few houses apart. After they played together for a while, they went in the house to watch television. The alleged victim then went into a the "computer room" where Mr. Block was located. After a brief conversation, Block asked the alleged victim whether she would like to give him a kiss, and would she sit on his lap. She then sat on his lap. He then touched her breasts and placed his hand down the front of her shorts and rubbed her vagina area. The alleged victim then left. A short time later she returned. The defendant then invited her back in the house and asked her to go to the bathroom with him. He then asked her to get undressed, which she did. He then had her lay down on the floor, and he removed his pants and laid down on top of her. As described by the alleged victim, he then placed his privates in her privates. The police officer testified that his understanding was that "privates in privates" meant vaginal intercourse. There was reference in the preliminary hearing transcript to a doctor having examined the alleged victim and having determined that penetration did occur. The preliminary hearing transcript is a total of 119 pages. The incident became known two days later when the little girl herself apparently reported it through 911.
6. The Court finds that the exact location where the alleged crimes occurred, the type of sexual intercourse or contact alleged, the manner of sexual solicitation, the specific act or acts which endangered the welfare of the victim and the type of harm resulting from the proscribed acts are all adequately described in the testimony given at the preliminary hearing. A defendant is not entitled to a bill of particulars for information of which he is already aware or which is readily accessible to him. The Court is satisfied that the information contained in the officer's testimony at the preliminary hearing more than adequately provides the defendant with the information which he could reasonably expect from a bill of particulars.
7. THEREFORE, IT IS ORDERED that the defendant's motion for a bill of particulars is denied . _________________ Resident Judge
oc: Prothonotary cc: Order Distribution