Hastings v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL E. HASTINGS, §
§
Defendant Below, §
Appellant, § No. 93, 2022
§
v. § Court Below: Superior Court
§ of the State of Delaware
STATE OF DELAWARE §
§ Cr. ID No. 2010000511(N)
Plaintiff Below, §
Appellee. §
Submitted: November 2, 2022
Decided: January 10, 2023
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Zachary A. George, Esquire, Hudson Jones Jaywork & Fisher, Dover, Delaware, for
Defendant Below, Appellant Michael Hastings.
David C. Skoranski, Esquire (argued), and Nicole M. Mozee, Esquire, Delaware
Department of Justice, Wilmington, Delaware, for Plaintiff Below, Appellee State of
Delaware.
SEITZ, Chief Justice:
At a political rally for a Delaware U.S. Senate candidate, video and
photographic evidence captured Michael Hastings unholstering his handgun and
pointing the ready-to-fire weapon at protesters across the street from the rally. He
also left the handgun unattended on the ground. The State charged Hastings with
one count of Reckless Endangering in the First Degree and one count of Possession
of a Firearm During the Commission of a Felony. A Superior Court jury convicted
Hastings of both counts. The judge sentenced Hastings to four years at Level V
incarceration followed by decreasing levels of supervision.
Hastings raises three arguments on appeal: for the reckless endangering
charge, the trial court incorrectly instructed the jury on what a “substantial risk” of
death is; the evidence was insufficient to support a reckless endangering conviction;
and the cumulative effect of these errors requires both convictions to be vacated.
After our careful review of the record, we affirm the convictions. At trial,
Hastings did not object to the jury instructions, meaning he must demonstrate plain
error. Even though the court’s “substantial risk” instruction mixed the elements of
a reckless endangering charge with an aggravated menacing charge, plain error does
not exist because the erroneous instruction was not clearly prejudicial to Hastings’
defense. Further, after our review of the photographic and video evidence shown to
the jury, a rational jury could find that pointing a ready-to-fire weapon at a crowd of
2
agitated protesters and leaving the handgun unattended on the ground created a
substantial risk of death.
I.
A.
When considering the facts on appeal, we view the evidence in a light most
favorable to the State.1 On September 24, 2020, Michael Hastings attended a
political rally in New Castle County in support of a Delaware U.S. Senate candidate.
The events were captured by photographs and videos. A group of eight to twelve
protesters were located across the street from Hastings and other supporters.2 The
two sides jeered and yelled at each other.3 Hastings was open carrying a handgun
on his belt. The gun was loaded and did not need to be “racked” or cocked to fire.4
Hastings unholstered his gun four times. First, he took the gun out, handed it
to a person he was talking to, and the person handed it back.5 Hastings took the gun
out a second time while talking to the same person and briefly pointed it at the
ground.6 Right afterward, he unholstered the gun again, this time extending his right
arm, pointing the gun where the protesters were gathered, and re-holstered it.7 Three
1
Lowther v. State, 104 A.3d 840, 843 (Del. 2014).
2
App. to Am. Opening Br. at A123, A143, A164–65.
3
Id. at A132, A147, A157, A167.
4
Id. at A217–18; State’s Trial Ex. 5 (Audio Recording of Hastings’ Statements).
5
Id. at A212.
6
Id. at A213.
7
Id.3
protesters testified at trial that Hastings pointed the gun at them for a couple of
seconds.8 They also testified that they felt worried and alarmed by his actions.9 They
reported Hastings’ conduct to police officers at the event.10 The fourth time Hastings
unholstered the gun, he left it on the ground and walked toward the protesters to
confront them.11 Another person nearby picked up the gun and handed it back to
Hastings when he walked away from the protestors.12
B.
The State charged Hastings with one count of Reckless Endangering in the
First Degree and one count of Possession of a Firearm During the Commission of a
Felony. Under Delaware law, a reckless endangering charge has two elements – the
defendant acted recklessly, and the defendant engaged in conduct which created a
substantial risk of death to others.13 The statute does not define substantial risk of
death. During trial, Hastings’ counsel requested that the jury instructions define
“substantial risk” of death as follows – “a strong possibility as contrasted with a
remote or significant possibility that a certain result may occur.”14 The trial judge
responded that the request “goes a bit far afield” but the judge did not have a problem
8
Id. at A140, A146, A166–67.
9
Id. at A125, A146–47, A168, A203.
10
Id. at A198, A200.
11
Id. at A127–28, A148–49, A214.
12
Id. at A127–28, A214.
13
11 Del. C. § 604.
14
App. to Am. Opening Br. at A193-94.
4
with “substantial risk means a strong possibility that something will occur.”15
Hastings’ counsel responded: “[i]f that’s the Court’s ruling, I would ask to leave the
contrasted part in, but obviously if that’s the Court’s ruling, so be it.”16
During another recess, the court asked about adding “imminent threat” to the
substantial risk definition. The following exchange took place with counsel:
THE COURT: I looked at a different definition of substantial risk and
some of the words they also used were imminent threat. Does anyone
want that added? I think what we have now is sufficient.
[Defense:] Your Honor, I’m good with what we have.
[State:] The State would like that added.
THE COURT: The State would like imminent threat added, okay, so it
will read: Substantial risk means . . . a strong possibility or imminent
threat that a certain result may occur.
[State:] That works, yes.
THE COURT: Okay, all right, then we will get this going.17
The final jury instructions defined reckless endangering with two elements
followed by an explanation:
One, the defendant acted recklessly.
And two, the defendant engaged in conduct which created a substantial
risk of death to others.18
Recklessly means that the defendant was aware of and consciously
disregarded a substantial and unjustifiable risk that the death of another
person would result from the conduct. The risk must be of such a nature
and degree that disregard of it constituted a gross deviation from the
15
Id. at A195.
16
Id. at A193–95.
17
Id. at A207–08.
18
Id. at A287.
5
standard of conduct that a reasonable person would observe in the
situation.
Substantial risk means a strong possibility or imminent threat that a
certain result may occur.19
C.
Following the State’s case-in-chief, Hastings moved for judgment of
acquittal.20 Hastings argued that merely pointing a firearm at someone without
discharging it was insufficient for a reckless endangering conviction.21 The Superior
Court denied Hastings’ motion, finding that a reckless endangering conviction did
not require firing the gun.22
After the court instructed the jury, the court asked counsel whether they
wanted “[a]ny tweaks or anything [they]’d like [the court] to add or take away.”23
Defense counsel answered no.24 During deliberations, the jury asked the court
“[w]hat constitute[d] a strong possibility or imminent threat that a certain result may
occur.”25 After consulting with counsel, the court explained to the jury: “where I
have not defined a word, that word has its commonly accepted meaning.”26
The jury convicted Hastings on both counts.27
19
Id.
20
Id. at A243.
21
Id. at A244–45.
22
Id.at A239.
23
Id. at A302.
24
Id.
25
Id. at A305.
26
Id.
27
Id. at A306.
6
D.
After trial, Hastings moved again for judgment of acquittal.28 Hastings argued
that there was, at best, a remote possibility of accidental discharge because he did
not threaten anyone, was pointing the firearm in a downward direction for about two
seconds, and there were no children around the area where he left the firearm
unattended.29 The trial court found there was sufficient evidence to convict Hastings
of the charges.30 The court concluded that pointing a gun at someone was an
“imminent threat” and created a “strong possibility” of death.31 As the court held,
Hastings was also the sole aggressor acting in a “powder keg” situation, “creat[ing]
a potential fatal outcome.”32 And the court rejected Hastings’ trivialization of the
danger, finding that pointing a gun at other people was inherently deadly irrespective
of the ages of others present or what he believed to be appropriate reactions to a
loaded gun.33
II.
A.
On appeal, Hastings argues that the trial court erred when it instructed the jury
that, for the reckless endangering charge, a substantial risk of death means a “strong
28
Id. at A346.
29
Id. at A347–48.
30
Id. at A362.
31
Id. at A368–69.
32
Id. at A369.
33
Id. at A371.
7
possibility or imminent threat that a certain result may occur.”34 He contends that
we should review the issue de novo because Hastings’ counsel objected to the
instruction during trial. The State responds that Hastings did not object to the jury
instructions, and therefore we should review only for plain error.
Under Superior Court Criminal Rule 30, “[n]o party may assign as error any
portion of the [jury] 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.” The purpose of the rule is to alert the trial judge to an objection and
to provide the court with a chance to address the objection before the jury
deliberates.35 While counsel following good trial practice should comply with the
rule by using the word “object” and explain the basis for the objection, counsel can
nonetheless preserve an objection to jury instructions if it is clear from the record
that counsel intended to object, explained the basis for the objection, and the trial
court had a chance to rule on the objection.36
34
Am. Opening Br. at 27.
35
See Jones v. United States, 527 U.S. 373, 388 (1999) (finding the Federal Rules of Criminal
Procedure 30, which has the same timeliness and specificity requirements, “enable[s] a trial court
to correct any instructional mistakes before the jury retires and in that way help to avoid the
burdens of an unnecessary retrial”).
36
See Stilwell v. Parsons, 145 A.2d 397, 401 (Del. 1958) (finding objection was preserved where
“the trial judge had the [plaintiff’s] point in mind and made his considered decision against the
plaintiff’s contention”); Lisowski v. Bayhealth Med. Ctr., Inc., 2016 WL 6995365, at *2 (Del.
Super. Nov. 30, 2016) (finding objection was preserved where both the court and the defendant
were on sufficient notice of the plaintiff’s challenge).
8
Here, the informality of Hastings’ counsel’s words – “I’m good with what we
have” – lead us to conclude that counsel did not intend to object formally or to
preserve an issue for appeal. Equally important, the trial court did not have an
opportunity to consider a specific objection and, if warranted, take remedial action.
Thus, we review for plain error. To reverse for plain error, “the error complained of
must be so clearly prejudicial to substantial rights as to jeopardize the fairness and
integrity of the trial process.”37 “Further, 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.”38
B.
It is settled that “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.”39
“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.”40
37
Lowther, 104 A.3d at 845 (internal quotation omitted).
38
Id.
39
Bullock v. State, 775 A.2d 1043, 1047 (Del. 2001).
40
Probst v. State, 547 A.2d 114, 119 (Del. 1988) (internal quotation omitted).
9
Under 11 Del. C. § 604, “[a] person is guilty of reckless endangering in the
first degree when the person recklessly engages in conduct which creates a
substantial risk of death to another person.” “‘Substantial risk of death’ is not
defined in the Delaware Criminal Code but is accorded ‘its commonly accepted
meaning.’”41 Here, the trial court instructed the jury that “[s]ubstantial risk means a
strong possibility or imminent threat that a certain result may occur.”
Hastings argues that the instruction was erroneous because the words
“imminent threat” have not been used to explain “substantial risk.”42 According to
Hastings, the trial court borrowed the phrase from the aggravated menacing offense
or other unrelated offenses.43 Hastings also claims that the error was prejudicial
because using “imminent threat” allowed the jury to consider the protesters’
subjective interpretation of Hastings’ conduct when determining whether his
conduct created a substantial risk.44 He argues further that the jury wrestled with the
definition of “substantial risk,” as evidenced by their question during deliberations.45
41
Britt v. State, 113 A.3d 1080 (Del. 2015) (TABLE) (citing Eaton v. State, 751 A.2d 878 (Del.
2000)); see also 11 Del. C. § 221 (“If a word used in th[e] Criminal Code is not defined herein, it
has its commonly accepted meaning.”).
42
Am. Opening Br. at 27.
43
Id. at 27–28.
44
Id. at 29; Reply Br. at 13.
45
Am. Opening Br. at 29–30.
10
Hastings’ arguments have merit. One of the commonly accepted meanings of
“threat” is “an expression of intention to inflict . . . injury.”46 The intention to inflict
injury, either from the subjective perspective of the defendant or as perceived by the
victim, is not an element of the reckless endangering offense.47 Under reckless
endangering, the question is whether Hastings acted recklessly and whether his
conduct, in fact, created a substantial risk of death.48 By including “imminent threat”
in the instruction, the court muddled the distinction between a reckless endangering
offense and an aggravated menacing offense, which focuses “on the victim’s
perception of the threat rather than on the actual risk of danger.”49
Even though the court erred by including “imminent threat” in the reckless
endangering instruction, it is not plain error. To be a plain error, it must be “so
clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of
46
Threat, MERRIAM-WEBSTER (last visited Jan. 4, 2023), https://www.merriam-
webster.com/dictionary/threat; see also Threat, BLACK’S LAW DICTIONARY (7th ed. 1999)
(defining “threat” as a “communicated intent to inflict harm or loss on another”).
47
See Del. Governor’s Comm. for Revision of the Criminal Law, D ELAWARE CRIMINAL CODE
WITH COMMENTARY 166 (1973) (“Note that there need be no proof . . . that the victim be put in
fear.”); Minor v. State, 605 A.2d 138, 141 (Md. 1992) (analyzing a similar reckless endangerment
statute and finding “guilt under the statute does not depend upon whether the accused intended
that his reckless conduct create a substantial risk of death or serious injury to another”).
48
Del. Superior Court Crim. Pattern Jury Instructions, § 11.604.
49
Graham v. State, 846 A.2d 238 (Del. 2004) (TABLE) (“The bill [adopting the aggravated
menacing statute] eliminated the need for the State to prove that the displayed weapon, in fact,
created a substantial risk of death (an element of felony reckless endangering) . . . . [T]he focus
of the aggravated menacing statute is on the victim’s perception of the threat rather than on the
actual risk of danger.”); 11 Del. C. § 602(b) (“A person is guilty of aggravated menacing when by
displaying what appears to be a deadly weapon that person intentionally places another person in
fear of imminent physical injury.”).
11
the trial process.”50 “This means that ‘it must have affected the outcome of the
trial.’”51
In our view, it did not. As is apparent from defense counsel’s closing
argument, Hastings’ trial strategy was to persuade the jury that Hastings pointed the
gun toward the ground, not at the protesters.52 Defense counsel told the jury: “If that
gun doesn’t appear to be pointed down and appeared to be pointed at people then
find him guilty. But if it’s pointed down and the barrel is down . . . then you got to
find him not guilty.”53 Hastings’ other arguments at trial buttressed his claim that
the gun was pointed down. He attempted to discredit the protesters’ version of the
events,54 emphasized that the protesters never ran or ducked, and therefore did not
really believe that the gun was pointed at them.55 The State countered by arguing
during closing that the video and photographic evidence showed Hastings pointing
the gun at the protesters.56
50
Lowther, 104 A.3d at 845 (internal quotation omitted).
51
Buckham v. State, 185 A.3d 1, 19–20 (Del. 2018) (quoting Morgan v. State, 962 A.2d 248, 254
(Del. 2008)).
52
App. to Am. Opening Br. at A267, A270, A271.
53
Id. at A270.
54
Id. at A265.
55
Id. at A121, A134, A158, A223; id. at A271 (“And you guys can decide whether or not if a gun
is pointed you, you really believe a gun is pointed at you as opposed to just somebody taking it out
and showing it to somebody, what is your reaction, just stand there and start cussing the guy or do
you duck, do you run, do you hide. They didn’t do any of that.”) (Defense’s Closing Argument).
56
Id. at A256, A257, A258, A260, A273.
12
Whether Hastings posed a threat or Hastings intended to inflict harm did not
play much of a role, if any, at trial. Hastings’ counsel repeatedly argued to the jury
that he did not threaten the protesters.57 The State did not argue that Hastings posed
an “imminent threat” to the protestors.58 The State also told the jury that the case
“[wa]sn’t about what the defendant intended to do.”59 We conclude that it is unlikely
that the “imminent threat” portion of the instruction prejudiced the defendant or
affected the outcome of the trial when the State and defense counsel made the
direction of the gun-pointing the dispositive issue at trial.
III.
Hastings also claims that the trial court erred when it denied his motion for
judgment of acquittal. He argues that he did not discharge or waive the gun and did
not put his finger on the trigger.60 According to Hastings, merely pointing a gun is
insufficient to convict him of reckless endangering.61 He also claims that the
General Assembly did not intend that the reckless endangering statute encompass
the mere display of weapons.62 When reviewing sufficiency of the evidence claims
on appeal, this Court must decide whether any rational trier of fact, viewing the
57
Id. at A264, A267, A271–72.
58
Id. at A255-61, A273–74.
59
Id. at A258.
60
Am. Opening Br. at 36.
61
Id.62
Id. at 35.
13
evidence in the light most favorable to the prosecution, could find the essential
elements of the charged offense beyond a reasonable doubt.63
After our independent review of the record viewed in a light most favorable
to the State, we conclude that the evidence at trial was legally sufficient to support
Hastings’ convictions beyond a reasonable doubt. First, we find unpersuasive
Hastings’ argument that the General Assembly did not intend to include the mere
display of a weapon under the reckless endangering statute. Hastings did more than
display his weapon. He pointed it at the protesters. The legislative history of the
reckless endangering statute reveals that the General Assembly intended the offense
to cover conduct such as pointing firearms at people. The reckless endangering
offense was first enacted into law in 1972.64 The drafters of the 1972 Criminal Code
explained that “there were several statutory crimes in the former Title 11 which
would constitute reckless endangering,” and listed “pointing a firearm” as one of
them.65
63
Lowther, 104 A.3d at 843.
64
11 Del. C. §§ 603, 604 (1972); Del. Governor’s Comm. for Revision of the Criminal Law,
DELAWARE CRIMINAL CODE WITH COMMENTARY 166 (1973).
65
Id. at 166. The drafters discussed the former Delaware law under Section 603, which is reckless
endangering in the second degree, and then referred to this discussion under Section 604. Id. at
167. The only difference between reckless endangering in the first and second degree is the
magnitude of the risk of harm, i.e., “substantial risk of death” or “substantial risk of physical
injury.” 11 Del. C. §§ 603, 604. Thus, depending on circumstances, pointing a gun can create a
substantial risk of both physical injury and death, especially when the gun is loaded and ready-to-
fire and is aimed directly at people.
14
Second, Hastings relies on the statutory definition of “deadly force” under the
justification defense.66 There, “deadly force” does not include “[a] threat to cause
death or serious bodily harm, by the production of a weapon or otherwise, so long
as the defendant’s purpose is limited to creating an apprehension that deadly force
will be used if necessary.”67 This definition, however, is only relevant to a
justification defense when a defendant argues that the use of “deadly force” is
justified. It has no bearing on the legislative intent behind the reckless endangering
offense.
Finally, there was sufficient evidence for the jury to find that Hastings’
handling of the gun was reckless and that he created a substantial risk of death for
people around him and across the street. What transpired at the political rally was
captured by videos and photographs introduced at trial. The evidence shows that
Hastings unholstered his loaded gun multiple times and pointed the weapon at the
agitated protesters in a tense political event where the supporters and the protesters
jeered and yelled at each other. The gun did not need to be “racked” to fire, meaning
there was an elevated risk of discharge, even if accidental. Hastings also left the
loaded gun on the ground with other people nearby, some of whom he might have
66
Am. Opening Br. at 35.
67
11 Del. C. § 471 (emphasis added).
15
just met.68 Anyone could pick up the gun, regardless of whether they had any gun
handling experience or training. We have reviewed the videos and photographs of
the incident and have no doubt that the jury’s verdict was supported by the
evidence.69
IV.
We affirm the judgment of the Superior Court.
68
App. to Am. Opening Br. at A217 (“[Hastings] was discussing the weapon with another person
whom he did not know at the time.”) (Officer Larney’s Testimony).
69
Hastings also argues that allowing his convictions to stand would pose an undue burden on his
right to bear arms. Am. Opening Br. at 37-38. The argument was not raised below and was not
argued as plain error on appeal. In any event, this case was not about Hastings open carrying his
gun but his reckless handling and pointing of the weapon. Id. at A84 (State’s Opening Statement);
id. at A123 (Trumbull’s Testimony); id. at A180 (Diaz’s Testimony); id. at A257 (State’s Closing
Argument).
16