           IN THE SUPREME COURT OF THE STATE OF DELAWARE


CURTIS WHITE,                           §
                                        §     No. 120, 2017
      Defendant Below,                  §
      Appellant,                        §     Court Below: Superior Court
                                        §     of the State of Delaware
      v.                                §
                                        §     I.D. No. 1209017723
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §


                         Submitted: October 4, 2017
                         Decided:   October 17, 2017

Before STRINE, Chief Justice; VAUGHN and SEITZ, Justices.

Upon appeal from the Superior Court. REVERSED and REMANDED.



Michael W. Modica, Esquire, for Appellant, Curtis White.

Brian L. Arban, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, for Appellee, State of Delaware.




STRINE, Chief Justice:
                                                I.

       Curtis White appeals the denial by the Superior Court of his post-conviction

claim under Strickland, which contended that White was prejudiced when his trial

counsel unreasonably failed to accede to his request to ask for a lesser included

offense instruction. In the post-conviction proceeding, trial counsel admitted that he

did not understand the lesser included offense of the major charge, First Degree

Reckless Endangering, that his client faced. White was charged with First Degree

Reckless Endangering after he fired a gun on a residential block, and asked his

counsel to seek a lesser included offense instruction on the crime of Second Degree

Reckless Endangering. His counsel did not, believing that (1) at the very least his

client’s use of a gun created a risk of “serious physical injury,” (2) First Degree

Reckless Endangering encompassed not just a risk of death, but also a risk of serious

physical injury, and (3) therefore he could not seek the lesser included offense

instruction.1

       But, in reality, it was irrelevant whether or not White’s conduct created a risk

of serious physical injury because First Degree Reckless Endangering requires proof

of a substantial risk of death,2 and Second Degree Reckless Endangering requires

proof of a substantial risk of physical injury.3 That is, neither the felony First Degree


1
  First Aff. of Trial Counsel ¶ 1, Nov. 25, 2015.
2
  11 Del. C. § 604.
3
  11 Del. C. § 603.
Reckless Endangering offense nor the misdemeanor Second Degree Reckless

Endangering offense includes the serious physical injury element between risk of

death and risk of physical injury counsel thought existed.

         A reasonable jury could have found White guilty of Second Degree Reckless

Endangering because there was evidence that White was not pointing his gun at

anyone in particular and was instead aiming blindly behind himself.4 Thus, there

were factual grounds to give the lesser included offense instruction. Supporting this

conclusion are prior decisions of this Court, which have found that even when a

defendant uses a weapon that can be lethal, a lesser included offense instruction for

Second Degree Reckless Endangering can be proper, depending on the facts.5

         Here, trial counsel conceded he acted without a tactical purpose, and there is

no plausible tactical reason for failing to request the instruction. Thus, counsel’s

performance fell below an objective standard of reasonableness for purposes of

Strickland. And because a jury could have concluded that White was guilty of

Second Degree Reckless Endangering rather than First Degree Reckless

Endangering, there was prejudice under Strickland. For these reasons, we reverse.




4
    E.g., Trial Tr. 134:8–10, Mar. 26, 2013.
5
    See Oney v. State, 397 A.2d 1374 (Del. 1979); Kauffman v. State, 452 A.2d 945 (Del. 1982).
                                                 2
                                              II.

       Around 5:30 p.m. on September 24, 2012, Curtis White was standing on the

corner of 26th and Zebley Streets in Wilmington with two other people when an off-

duty police officer drove by.6 The off-duty police officer heard gunshots and saw

White “running around the corner and firing a gun, and stated that [White] was not

looking where the gun was aimed.”7 White drove away from the scene at a high rate

of speed, was identified and followed by the police, and eventually turned himself

in to the police.8

       The police found three gun casings at the scene, one gun casing down the

street, a bullet hole in a car parked outside 512 W. 26th Street, a “projectile

fragment” in the outside screen of 510 W. 26th Street, and a piece of chipped brick

on the porch of 512 W. 26th Street.9 No one was injured by White’s gunfire and

none of the bullets White fired penetrated any of the homes on the street.10 On the

final day of trial, White asked trial counsel to seek the lesser included offense

instruction for the offense of First Degree Reckless Endangering.11 Trial counsel

declined to do so.




6
  White v. State, 2017 WL 519265, at *1, *3 (Del. Super. Jan. 26, 2017).
7
  Id. at *1.
8
  Id.
9
  Id.
10
   Trial Tr. 73:15–18, Mar. 26, 2013.
11
   Appellant’s Opening Br. 8.
                                               3
       The jury found White guilty of First Degree Reckless Endangering,

Possession of a Firearm During the Commission of a Felony, Possession of a Firearm

by a Person Prohibited, and “[three] criminal mischief offenses related to the

property damage from the bullet strikes.”12 White was sentenced to nineteen years

of Level V incarceration, suspended after twelve years for decreasing levels of

supervision.13 White appealed his conviction to this Court, and we affirmed.14

       White then filed this petition for post-conviction relief, arguing trial counsel’s

representation was ineffective because of his failure to seek a lesser included offense

instruction. Trial counsel admits that (1) “until reading the statute” after receiving

an email from White’s Rule 61 counsel, he assumed that “Reckless Endangering 1st

degree encompassed both ‘serious physical injury’ and ‘death,’”15 and (2) he rejected

White’s request for a lesser included offense instruction because he believed “a

bullet fired from a gun would not result in any injury other than ‘serious physical

injury.’”16 Counsel admits he denied White’s request for a lesser included offense


12
   Id.
13
   State’s Reply Br. 1.
14
   White v. State, 2014 WL 637050 (Del. Feb. 6, 2014).
15
   Second Aff. of Trial Counsel ¶ 3, May 27, 2016.
16
   First Aff. of Trial Counsel ¶ 1, Nov. 25, 2015. We are aware of legitimate concerns on the part
of the state and trial judges that trial counsel sometimes fault their own performance in the Rule
61 context, in situations when their confession of failing to live up to their duties seems strained
and inconsistent with the record. The duty of trial counsel in the Rule 61 context is to play it as
straight as possible and to describe what he did accurately and without any bias in any direction.
In fact, it is the duty of trial counsel to describe what he did and not to express opinions about
whether what he did was reasonable under Strickland. Here, we have confidence that trial counsel
accurately reported his mistaken understanding of the law, because in his first affidavit he justified
his failure to seek the lesser included instruction. Id. at ¶ 1, 4. It was only after he was made aware
                                                  4
instruction because he thought “[i]t made no sense to argue that a bullet fired from

a gun might only create a substantial risk of physical injury. It did not seem plausible

that a jury would consider a bullet striking a person as resulting in any injury other

than ‘serious physical injury,’ as defined under Delaware law.”17

       As counsel acknowledged, “I failed to consider the large gap between

‘physical injury’ (Reckless Endangering 2nd Degree) and ‘death’ (Reckless

Endangering 1st Degree). Given those extremes, one could easily assert that ‘serious

physical injury’ dovetails better with ‘physical injury’ versus ‘death.’ I am 100%

positive that I neglected to contemplate that issue. Moreover, in a case involving

ricochet evidence, one could possibly argue that even ‘physical injury’ was in play,

per Oney v. State.”18

       The Superior Court applied Stickland’s two-prong test in addressing White’s

claim.19 As to the first prong, the Superior Court determined that trial counsel’s

representation did not fall below an objective standard of reasonableness because

trial counsel strategically denied White’s request for a lesser included offense

instruction to focus on “attack[ing] whether [White] consciously disregarded a



that the statute for First Degree Reckless Endangering did not include any reference to “serious
physical injury” that he reversed course, and admitted that his refusal to ask for the lesser included
instruction was based on his misunderstanding of the relevant statutes. Second Aff. of Trial
Counsel ¶ 3–5, May 27, 2016.
17
   First Aff. of Trial Counsel ¶ 4, Nov. 25, 2015.
18
   Second Aff. of Trial Counsel ¶ 5, May 27, 2016 (internal citation omitted).
19
   Strickland v. Washington, 466 U.S. 668 (1984).
                                                  5
substantial risk that death would result.”20 As to prejudice, the Superior Court noted

that it “struggle[d] to see how, even upon request of the [lesser included offense

instruction], the [instruction] would have been granted.”21

       We part company from the Superior Court on these points. As we next

discuss, we fail to see how not asking for the lesser included offense instruction

constituted a reasonable tactical decision, both because it was uninformed and

because asking for the instruction would have been consistent with trial counsel’s

strategy. Likewise, we disagree that there was no basis in the trial record to sustain

the instruction for Second Degree Reckless Endangering.

                                           A.
       There is a binary distinction between felony and misdemeanor Reckless

Endangering. First Degree Reckless Endangering requires reckless engagement in

conduct that creates a substantial risk of “death,” while Second Degree Reckless

Endangering requires reckless engagement in conduct that creates a substantial risk

of “physical injury.”22 “A person acts recklessly with respect to an element of an




20
   White, supra note 6, at *3.
21
   Id.
22
   11 Del. C. § 604; 11 Del. C. § 603.
                                          6
offense when the person is aware of and consciously disregards a substantial and

unjustifiable risk that the element exists or will result from the conduct.”23

          Serious physical injury is not a statutory element of either First Degree

Reckless Endangering or Second Degree Reckless Endangering. The intermediate

position counsel thought existed does not exist. Rather, there is a choice between

“substantial risk of death” and “substantial risk of physical injury.” 24 As trial

counsel’s own logic admits, a gun, although capable of lethal force, can also result

in injuries that are not fatal. Thus, there can be circumstances where a gun is used

in the commission of a crime that a jury, as fact finder, could conclude did not cause

a substantial risk of death, but instead caused a substantial risk of physical injury: a

category that would encompass all injuries short of death.

          Instead of researching the statutory components of First and Second Degree

Reckless Endangering before deciding whether or not to request a lesser included

offense instruction, counsel says he made that decision based on his incorrect

assumption that First Degree Reckless Endangering encompassed both a risk of

serious physical injury and death. By denying White’s request for a lesser included

offense instruction without knowing the statutory components of the crime for which

White was charged, and without reading the statutory components of First and



23
     11 Del. C. § 231.
24
     11 Del. C. § 604; 11 Del. C. § 603.
                                           7
Second Degree Reckless Endangering comparatively, counsel’s representation of

White fell below an objective standard of reasonableness.25

       We cannot conclude, as the Superior Court did, that counsel somehow

unwittingly hit on a smart tactical move. Asking for an instruction on Second Degree

Reckless Endangering was consistent with the theory counsel pressed at trial: White

fired the gun but did not create a substantial risk of death. As trial counsel stated in

his closing argument, “[A]t the time he’s squeezed off the rounds, was he

consciously aware that there were people likely to be hit by those rounds and he blew

it off, not possible, not speculative, but substantial risk? I would submit to you that

hitting a house, by itself, even if you were deliberately aiming at it, is still not

enough, and there’s no evidence that he was deliberately aiming at anyone . . . .”26

We perceive no advantage to failing to adhere to White’s request to give the jury a

conviction option that fit the fact pattern trial counsel was advancing on White’s

behalf.

                                                B.

       Absent prejudice, of course, relief is unattainable under Strickland. And,

expressing doubt that a lesser included offense instruction could have been granted

in this case, the Superior Court noted: “in order to give an instruction on a lesser


25
   See, e.g., Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014) (“An attorney’s ignorance of a point
of law that is fundamental to his case combined with his failure to perform basic research on that
point is a quintessential example of unreasonable performance under Strickland.”).
26
   Trial Tr. 83:20–84:4, Mar. 27, 2013.
                                                8
included offense, the trial court must be satisfied that ‘the evidence introduced in the

case . . . support[s] a jury verdict convicting [the] defendant of the lesser crime rather

than the indicted crime.”27 But the trial record contained evidence from which a jury

could have reasonably found White guilty of Second Degree Reckless Endangering,

rather than First Degree Reckless Endangering.

       For example: (1) the off-duty officer did not see anyone on the block at the

time of the shooting except the other two people White was standing with before the

shooting;28 (2) the shots “went far away from [those two people]”;29 (3) White was

not looking in the direction he was shooting;30 (4) White was “running like grabbing

a baton, like if you’re in a relay race and you’re waiting for [your teammate] to pass

a baton” with the gun outstretched behind his body as he shot;31 and (5) none of the

bullets White fired hit anyone or penetrated a residence.32

       Prior decisions of this Court also support our conclusion that the failure to

give the lesser included offense instruction was prejudicial.                These decisions

recognize that even if a defendant discharges a firearm, the circumstances in which

he does so may be such that a reasonable jury could determine that he was guilty of



27
   White, supra note 6, at *2 (citing Baker v. State, 1993 WL 557951, at *6 (Del. Dec. 30, 1993))
(emphasis in original).
28
   Trial Tr. 122:18–21, Mar. 26, 2013.
29
   Id. at 134:5–7.
30
   E.g., Trial Tr. 134:8–10, Mar. 26, 2013.
31
   Trial Tr. 92:8–12, Mar. 26, 2013.
32
   Id. at 73:15–18.
                                               9
Second Degree Reckless Endangering, rather than First Degree Reckless

Endangering.

          For example, in Oney v. State, one of the defendants fired shots from a vehicle

during a car chase. But, because the direction in which the defendant was aiming

his shots was contested, this Court found a “rational basis in the evidence for the

jury to have acquitted [the defendant] of [First Degree Reckless Endangering] and

convicted [him] of the lesser offense requiring only proof of a substantial risk of

physical injury rather than risk of death.”33 Likewise, in Kauffman v. State, despite

the fact that the defendant “fired at least one shot at the house after seeing [the man

he had followed home after a near-miss traffic incident] standing at the window,”

this Court found the trial judge “properly instructed the jury on the lesser included

offense [of Second Degree Reckless Endangering].”34

          Because there is a reasonable probability that, had the jury received a lesser

included offense instruction, it would have convicted White of misdemeanor, instead

of felony, Reckless Endangering, White’s claim has demonstrated prejudice.

          For the foregoing reasons, the judgment of the Superior Court is hereby

REVERSED and REMANDED. White’s convictions for First Degree Reckless




33
     Oney, supra note 5, at 1376.
34
     Kauffman, supra note 5, at 946.
                                             10
Endangering and Possession of a Firearm During the Commission of a Felony shall

be vacated and he shall be afforded a new trial on those charges.




                                         11
