IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
)
v. ) I.D. No.: 1705006132
) 1 707007639
)
SHALEIR GRAHAM, )
)
Defendant. )
MEMORANDUM OPINION
Submitted: February 1, 2018
Decided: March 12, 2018
Upon Consideration of Defendant ’s Motz'on to Transfer Charges to Famz`ly Court,
DENIED.
Mark A. Denney, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attomeyfor the State.
Misty A. Seemans, Esquire & Tiffany Adams Anders, Esquire, Assistant Public
Defenders, Offlce of Defense Services, Wilmington, Delaware. Attorneys for the
Defendant.
MEDINILLA, J.
INTRODUCTION
Shaleir Graham (“Defendant”) faces two separate sets of adult charges from
alleged violent conduct When he Was fourteen years old.l His first set of charges
include Robbery First Degree, Assault First Degree, Reckless Endangering First
Degree, Endangering the Welfare of a Child, three counts of Possession of a Firearm
During the Commission of a Felony, Possession or Control of a Firearm By a
Prohibited Juvenile, and Possession of Ammunition by a Person Prohibited.2 The
second set of charges include Attempted Murder First Degree, Possession of a
Firearm During the Commission of a Felony, two counts of Possession or Control
of a Firearm by a Person Prohibited, and Possession or Control of Ammunition by a
Person Prohibited.3 All charges may be considered for transfer to Family Court
under 10 Del. C. § 101 l. Upon Defendant’s Motion to Transfer, a reverse
amenability hearing Was held on December 20, 2017, Where the Court deferred its
decision pending completion of competency restoration, submitted on February l,
2018. After consideration of the parties’ submissions, oral arguments, and the record
in this case, Defendant’s Motion to Transfer Charges to Family Court is DENIED.
1 Defendant’s date of birth is November 3, 2002.
2 State v. Graham, Crim. I.D. No. 1707007639, D.I. #16 (Del. Super. Ct. July 24, 2017).
3 State v. Graham, Crim. I.D. No. 1705006132, D.l. #64 (Del. Super. Ct. May 15, 2017).
FACTUAL AND PROCEDURAL HISTORY
Defendant has a significant juvenile criminal history in the Family Court,
including six felony adjudications, two misdemeanor adjudications, twelve
violations of probation, and numerous arrests. Defendant has been detained and
participated in various programs through the Department of Services for Children,
Youth, and Their Families, Division of Youth Rehabilitative Services (“YRS”) With
little success. While Defendant Was on home monitoring for prior charges, he failed
to charge his GPS ankle bracelet and ignored orders to do so from both Family Court
and YRS. The allegations that bring Defendant to this Court stem from two incidents
on April 16, 2017 and May 10, 2017, both While he Was on home supervision and
his GPS remained uncharged.
At the reverse amenability hearing on December 20, 2017, the State called
Detective Flores (“Flores”) to testify on behalf of the State as to Defendant’s alleged
conduct on April 16, 2017. Flores testified that Defendant allegedly used a firearm
to rob, assault, and threaten the lives of a man and his nine-year-old daughter. The
facts, if proven, are as folloWs:
While the father and daughter Were Walking from a store, they Were
approached by a group of young men, including Defendant. While robbing the
father, they exchanged Words, Wherein father pleaded With Defendant to spare his
daughter from the events that Were unfolding and to let her leave. Defendant
allegedly pointed a handgun at the child’s head and told the father, “f"‘*k your
daughter.” After ordering his daughter to run, the man was pistol-whipped by the
Defendant in the back of the head and was punched and kicked by the other
juveniles.
The man was treated in the Intensive Care Unit and had to be placed in a
medically induced coma. Detective Flores later interviewed the man, who described
his assailant’s firearm as a chrome “old style cowboy” revolver with a white inlay.
After a gun matching that description was recovered by Detective Pewitt (“Pewitt”)
from Defendant’s residence, the assault victim was shown a photo array. The victim
identified Defendant as the one who displayed the firearm and attacked him, and
additionally pointed the firearm at his daughter.
Pewitt then testified on behalf of the State regarding the May 10, 2017
incident, where Defendant allegedly fired a handgun at a woman after she tried to
stop an assault on her boyfriend by several juveniles, including Defendant. Two of
the juveniles pulled out handguns and started firing upon the victims as they were
attempting to run away. The victim stated that the shooters ran in to a residence
that she believed to be owned by Defendant’s mother and identified Defendant as
the shooter. Defendant’s mother consented to a search of the property and police
located two handguns, including a chrome old style revolver with a white inlay.
Defendant moved to transfer his case to Family Court on June 2, 2017. A
reverse amenability hearing was held on December 20, 2017.4 The State called three
witnesses: Detective Flores, Detective Pewitt, and Jennifer Skinner on behalf of
YRS. Additionally, the parties stipulated to the introduction of two reports: a
psychological report from Laura Cooney-Koss, Psy.D. and a second from Ms.
Skinner on behalf of YRS. The Court also awaited a competency report that was
pending at the time of the reverse amenability hearing but no longer at issue in this
determination5 After considering the parties’ submissions, arguments, and the
evidence presented at the reverse amenability hearing, the matter is ripe for a
determination on Defendant’s Motion to Transfer.
STANDARD OF REVIEW
The reverse amenability process is meant to identify those juveniles charged
as adults who are amenable to the rehabilitative processes of the Family Court.6 If
4 The hearing was postponed due to Defendant’s challenge of competency and to allow him time
to participate in the competency restoration pro gram.
5 Defendant underwent a renewed competency evaluation on January 22, 2018, following
completion of the Superior Court’s competency restoration program. Amy Diehl Iannetta, Psy.D.
concluded that Defendant presented as having the competency skills to stand trial in her report
dated February 1, 2018.
6 See generally 10 Del. C. §§ 1010-11 (2013 & Supp. 2016). See Hughes v. State, 653 A.2d 241,
249 (Del. 1994) (quoting Marine v. State, 624 A.2d 1181, 1184 (Del. 1993); Marine v. State, 607
A.2d 1185, 1209 (Del. 1992)).
the juvenile files a motion to transfer the adult charges, this Court must hold a reverse
amenability hearing and weigh the four factors set forth in 10 Del. C. § 101 1(b).7
Under § 1011(b), the Court may consider evidence of: (1) “[t]he nature of the
present offense and the extent and nature of the defendant’s prior record, if any;” (2)
“[t]he nature of past treatment and rehabilitative efforts and the nature of the
defendant’s response thereto, if any;” (3) “[w]hether the interests of society and the
defendant would be best served by trial in the Family Court or in the Superior Court;”
and any “other factors which, in the judgment of the Court are deemed relevant.”8
DISCUSSION
Fair Likelihood of Conviction
Before the Court weighs these factors, however, “the Court must preliminarily
determine whether the State has made out a prima facie case against the juvenile,
meaning whether there is a fair likelihood that [the defendant] will be convicted of
the crimes charged.”9 There is a fair likelihood that the defendant will be convicted
if, after reviewing the totality of the evidence presented, it appears that, if the defense
does not sufficiently rebut the State’s evidence, “the likelihood of a conviction is
7 See, e.g., State v. Harper, 2014 WL 1303012, at *5-7 (Del. Super. Ct. Mar. 31, 2014).
810Del. C. § 1011(b).
9 Harper, 2014 WL 1303012, at *5 (citing Marine, 624 A.2d at 1185).
real. . . .”10 Furthermore, “[a] real probability must exist that a reasonable jury could
convict on the totality of the evidence assuming that the evidence adduced at the
reverse amenability hearing stands unrebutted by the defendant at trial.”ll
The evidence against Defendant is strong. As to both sets of charges, the
victims identify Defendant as the assailant. The second adult female victim places
Defendant running into his mother’s home. Through investigation, police conducted
a consent search and located two firearms, including a chrome old style revolver
with a white inlay. That firearm connects Defendant, or someone from Defendant’s
residence, to the first set of charges. The adult robbery victim described the very
distinctive firearm and subsequently identified Defendant from a photo array.
Defendant argued there were potential credibility issues with the robbery
victim because he may have entered into a plea agreement with the State for
unrelated criminal conduct. Though there may prove to be fruitful grounds for the
cross-examination of certain witnesses, at this point, there remains “[a] real
probability . . . that a reasonable jury could convict [Defendant] on the totality of the
evidence assuming that the evidence adduced at the reverse amenability hearing
stands unrebutted” at trial.12 This Court finds that there remains a fair likelihood
10 Smre v. Mayhall, 659 A.2d 790, 792 (Del. super. 1995).
ll Id
12 lai
that Defendant will be convicted of the charged offenses.13 Thus, the State has met
its burden of demonstrating a prima facie case against Defendant with a fair
likelihood of conviction at trial.
Weighing § 1011(b) ’s Four Factors
I. Section 1011(b) Factor One: Nature of Present Offense and the Extent
and Nature of Defendant’s Prior Record
The first § 1011(b) factor is two-pronged.14 The first prong of the first factor
inquiries into the nature of the present offense. For both sets of charges, the severity
of the charged offenses is patent. Defendant’s alleged behavior from April of 2017
shows particular depravity. Defendant made the conscious choice to switch from
pointing a firearm at an adult while committing a robbery and allegedly pointed the
firearm directly to the head of a nine-year-old child, stating “f"‘*k your daughter.”
The acts, accompanied by the words, undoubtedly victimized both father and
daughter. Additionally, Defendant’s failure to charge his GPS monitoring unit
13 Originally, this threshold analysis-the requirement that the State establish a prima facie case
against the defendant at the reverse amenability hearing_derived from what is today the first
prong of the § 1011(b): “nature of the present offense.” Maririe v. State, 607 A.2d 1185, 1211-
12 (Del. 1992). This showing was analogized to a “proofpositive” hearing. Ia'. “In each situation,
a judicial examination of the evidentiary justification for the charging decision is required.” Ia'. at
1212 (citing ln re Steigler, 250 A.2d 379, 383 (Del. 1969)).
Though the statute has been amended on several occasions over the past twenty-five years,
this requirement has endured. However, because this threshold analysis looks to the charging
decision and its independent evidentiary basis, the viability of an anticipated topic of cross
examination, such as the potential bias of a witness, is of questionable import.
14See § 1011(b)(1).
during the periods of time that correspond with these sets of crimes suggests
purposeful planning. The Court therefore find that the first prong of the first factor
weighs heavily against transfer.
Defendant has an extensive juvenile record, which reflects escalating
impulsive and violent behavior. He first became active with YRS when he was
twelve years of age, when he was placed on pre-trial supervision for felony charges
of Robbery First Degree, Possession of a Firearm During the Commission of a
Felony, Aggravated Menacing, Resisting Arrest, and Offensive Touching that
occurred just before his twelfth birthday. Defendant was then adjudicated in
February of 2015 of Receiving Stolen Property Under $1500. Defendant has
chronically been unable to keep his GPS unit charged and comply with curfew
restrictions.
Defendant was again arrested in June of 2015 on charges of Terroristic
Threatening and Criminal mischief. The State later entered nolle prosequi on these
charges as part of another plea agreement. Defendant was then placed at the New
Castle County Detention Center (“NCCDC”) in late June of 2015 on charges of
Theft Under $1500, Conspiracy Third, and Criminal Trespass Second.
Defendant then escaped from a non-secure detention facility in July of 2015
and was charged with Escape Third Degree. Defendant was not arrested or detained
on that charge until August of 2015, when he was charged with Failure to Appear
for an Arraignment on Theft Under 31500, Conspiracy Third, Criminal Trespass
Second, and Violation of Probation (“VOP”). ln October of 2015, Defendant was
adjudicated of two felony counts of Receiving Stolen Property, Escape Third
Degree, and Conspiracy Second.
Defendant faced a Robbery Second Degree charge in June of 2016, but this
charge was later dismissed. He was found delinquent on a VOP for missing curfew
in November of 20 1 6. Another VOP was filed in December of 20 1 6, after Defendant
went missing for five days, and was found delinquent in January of 2017. Defendant
then acquired an additional VOP and was found delinquent for going missing and
not attending school in March of 2017. Yet another VOP was filed in April of 2017
for failing to charge his GPS unit, attend school, and abide by curfew. Defendant
was then detained on the present charges in May of 2017 and has been held at the
NCCDC since that time. Defendant participated in a group assault in December of
2017, and had_as of the date of his amenability hearing_-not yet been charged for
that incident.
The defense argues that Defendant’s impulsivity and behavior are normal
child-like qualities, and that this Court should be guided by what the Supreme Court
of the United States has identified, in the Eighth Amendment context, as the
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“mitigating qualities of youth.”15 Defendant’s conduct goes beyond juvenile-like
qualities. His reckless and volatile behavior may be impulsive but morphed into
much more. This demonstrates that the rehabilitative efforts have not deterred him.
Defendant will not easily or maturely transform into adulthood in Family Court.
Thus, as to both prongs of factor one, the Court finds that they weigh against transfer.
II. Section 1011(b) Factor TWo: Nature of` Past Treatment and Defendant’s
Response
Defendant’s involvement with the juvenile justice system is extensive. His
recorded mental health history or treatment through Prevention Behavioral Health
Services (“PBH”) is limited. Defendant has been diagnosed with Bi-Polar ll and
Conduct Disorder, and is noted as having a history of Attention Deficit Disorder
(“ADD”) or Attention Deficit Hyperactivity Disorder (“ADHD”). Therefore, a
review of his treatment is through the rehabilitative efforts of YRS, which
unfortunately have not been successful.
After being adjudicated on his initial sets of charges in early 2015, Defendant
initially did well on probation, was attending school, and working with VisionQuest
to complete community service hours. However, starting in June of 2015, DFS
received emergency custody of Defendant, following the incarceration of both his
15 Miller v. Alabama, 567 U.S. 460, 476 (2012) (quoting Johnson v. Texas, 509 U.S. 350, 367
(1993)). See also Montgomery v. Loaisiana, 136 S.Ct. 718 (2016); Graha)n v. Floria’a, 560 U.S.
48 (2010); Roper v. Simmons, 543 U.S. 551 (2005).
ll
parents. Defendant was then placed with relatives. Defendant was later removed
from this placement for hitting other children. Probation had difficulty staying in
contact with him during this period.
The family was referred to Multisystemic Therapy (“MST”) for family
counseling, but the family cancelled both times that MST attempted to complete
intake. Defendant was then subsequently placed at the NCCDC for a brief period of
time on new charges in late June of 2015, and then placed at the Chris Sturmfels
Youth Center on June 30, 2015 . lt was from this facility that Defendant escaped,
after cutting the screen in his room and jumping out the window.
Defendant remained missing and with no treatment until he was detained at
NCCDC on August 6, 2015 . Defendant was then placed at Snowden Cottage on
November 23, 2015. Records show that Defendant had significant difficulty
adjusting to their programming He was placed on Administrative Intervention
“A.l” status on two occasions for defiant and aggressive behavior. After placement
on a behavioral plan, Defendant began to show more positive behavior. Defendant
was successfully discharged on February 24, 2016.
Defendant initially did well on probation. Defendant and his family were
participating in MST and having success. However, then Defendant was wanted on
a warrant and Defendant failed to appear in Family Court. He was then subsequently
12
arrested and detained at People’s Place, a non-secure detention facility on June 26,
2016. Defendant remained there until August 23, 2016.
Defendant has a history of non-compliance with probation, being found
delinquent of three VOPs and having a fourth filed at the time he was detained for
the present charges. Defendant frequently went missing, sometimes for extended
periods of time, missed curfew, and failed to attend school. Defendant was also not
compliant with charging his GPS unit. lt was during this time of noncompliance that
Defendant allegedly committed these offenses. Finally, a DFS treatment team was
opened on May 24, 2017 and remains open currently. Defendant has largely been
compliant with treatment while detained, but as noted earlier, did participate in a
group assault at NCCDC in early December of 2017.
Defendant has received extensive treatment and support over the past two or
so years and continues to reoffend, with escalating violent behavior. As highlighted
by the State, Defendant was previously on the highest form of probation supervision,
including GPS monitoring, when he allegedly committed the present offenses.
Additionally, Defendant’s current behavior at NCCDC remains of some concern.
Although Ms. Skinner and Laura Cooney-Koss, Psy.D. opine that Defendant
is amenable to Family Court, this Court finds that Defendant has not responded well
to treatment as ordered by Family Court. This Court finds that the second factor
weighs against transfer.
13
III. Section 1011(b) Factor Three: Interests of Society and Defendant
The State argues that numerous programs have failed to serve as adequate
safeguards to the community and as corrective measures for the Defendant. The
Court agrees. Defendant faces several felony offenses and has significant criminal
history. His violent behavior has escalated. He has escaped from facilities, fails to
comply with their rules, and repetitiver violated the terms of his probation.
Although there are likely more programs that may assist Defendant, it is in the best
interest of society to keep him in this Court. Even though it may be in the best
interest of Defendant to return to Family Court for some servicing, their services
have not worked. The prognosis is poor and he will transition erratically into
adulthood if not monitored This Court finds that the interests of society weigh
against a transfer.16
CONCLUSION
Under § 1011(b), the Court finds that the nature of the present offense and the
extent and nature of the Defendant’s both weigh against transfer. The nature of past
treatment and rehabilitative efforts and the nature of the defendant’s response thereto
also weighs against transfer. The Court also finds that the interests of society and
16 The fourth factor of § 1011(b)_other relevant factors the Court deems relevant_has been
sufficiently addressed in the other § 1011(b) factors such that the Court need not explicitly address
this factor in its opinion.
14
the Defendant weigh against transfer. For the reasons stated above, Defendant’s
Motion is DENIED.
IT IS SO ORDERED.
,/
Judge Vivian L. Medinilla
/
oc: Prothonotary
cc: Defendant
Jennifer Skinner, Master Family Service Specialist
15