           IN THE SUPREME COURT OF THE STATE OF DELAWARE


JONATHAN LOLLEY,                       §
                                       §
      Defendant Below,                 §     No. 334, 2015
      Appellant,                       §
                                       §
      v.                               §     Court Below—Superior Court
                                       §     of the State of Delaware
STATE OF DELAWARE,                     §
                                       §     Cr. ID No. 1403007951
      Plaintiff Below,                 §
      Appellee.                        §

                           Submitted: January 27, 2016
                           Decided: February 4, 2016

Before HOLLAND, VAUGHN, and SEITZ, Justices.

                                     ORDER

      This 4th day of February, 2016, it appears to the Court that:

      (1)    The police arrested Jonathan Lolley and Lenore Frankel in a motel

room after finding heroin and illegal prescription drugs in the room. In two jury

trials, a Superior Court jury convicted Lolley of drug dealing, illegal possession of

prescription drugs, and second degree conspiracy. He claims on appeal that the

Superior Court erred in his second trial by holding the prayer conference where

jury instructions were discussed after closing arguments. Lolley argues that this

error caused prejudice to his defense because it did not put his counsel on notice

that the jury would be instructed on accomplice liability. After a careful review of

the record, we conclude that Lolley has failed to demonstrate that the Superior
Court committed plain error. Therefore we affirm the judgment of the Superior

Court.

         (2)   On March 11, 2014, Lolley and Frankel were staying at the Super

Lodge Motel north of New Castle, Delaware. The police were looking for Frankel

as part of an investigation unrelated to this case, and learned that she was at the

motel.     After the police knocked on Frankel’s motel room door, and several

minutes passed during which they heard shuffling inside the room, Frankel and

Lolley opened the door and allowed the police to enter. Once inside, the officers

smelled burnt cannabis and saw a “blunt.” They arrested Lolley and Frankel after

finding twenty-eight small bags of heroin, several empty heroin bags, $281 in cash,

and prescription drugs.

         (3)   The State charged Lolley with dealing heroin, possession of a non-

controlled prescription drug without a prescription, and second degree conspiracy

to commit drug dealing. Lolley’s first trial took place in November, 2014. The

jury instructions included an accomplice liability instruction for the drug dealing

charge. The jury convicted Lolley of conspiracy and illegal possession of the

prescription drugs, but could not reach a verdict on the drug dealing charge.

         (4)   Lolley’s second trial took place in May 2015, and was limited to the

drug dealing charge. After Lolley and the State presented closing arguments, the

court held a prayer conference to discuss the jury instructions. The parties were



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working from the same jury instructions used in the first trial, and were deleting

the parts that were now irrelevant because of the convictions in the first trial.

There were also other minor modifications. At this point, Lolley objected to the

inclusion of the accomplice liability instruction on the ground that the State had

presented insufficient evidence that there had been any kind of agreement between

Lolley and Frankel. The court overruled the objection, reasoning that there was

sufficient evidence for the jury to infer accomplice liability. The jury found Lolley

guilty of drug dealing on May 20, 2015. This appeal followed.

       (5)      Because Lolley failed to preserve in the Superior Court his objection

to the timing of the prayer conference, we review for plain error. 1 “[T]he doctrine

of 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.” 2

       (6)      Lolley argues that it was plain error for the Superior Court to hold the

prayer conference after closing arguments, because it did not give his counsel an

opportunity to respond appropriately in his closing to the accomplice theory of


1
  Blake v. State, 65 A.3d 557, 562 (Del. 2013); Wainwright v. State, 504 A.2d 1096, 1100 (Del.
1986) (“This Court, in the exercise of its appellate authority, will generally decline to review
contentions not raised below and not fairly presented to the trial court for decision.”).
2
  Blake, 65 A.3d at 562 (quoting Turner v. State, 5 A.3d 612, 615 (Del. 2010)).




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liability for the drug dealing charge. Lolley relies on Superior Court Criminal Rule

30 for the proposition that the trial court must “inform counsel of its proposed [jury

instructions] prior to their arguments to the jury.” Lolley claims that by arguing in

closing that his involvement was incidental to Frankel’s drug dealing, he

unwittingly conceded accomplice liability, and that this concession flowed from

the order of closing arguments and the prayer conference.

       (7)     Rule 30 does not require that the court hold a prayer conference

before closing arguments. Rather, Rule 30 provides that “any party may file

written requests that the court instruct the jury on the law as set forth in the

requests.” If this happens, then the court “shall inform counsel of its proposed

action upon the requests prior to their arguments to the jury.” Although Rule 30

does not literally say so, it follows that a defendant who requests a prayer

conference to discuss jury instructions before closing arguments should be entitled

to one.3

       (8)     Lolley’s counsel did not submit proposed instructions for the second

trial. Nor did Lolley request a prayer conference before closing arguments. Rule

30 therefore did not come into play.                Although “[i]t is the practice in this


3
  See Lewis v. State, 416 A.2d 208, 210 (Del. 1980), (“[A]s the defendant did not submit any
proposed jury instructions pursuant to Rule 30 and did not request a preview of the jury
instructions, the Trial Court did not commit any error by failing to submit the instructions to the
defendant.”).




                                                4
jurisdiction for the trial judge to confer with counsel on the proposed jury

instructions prior to summation and, thus, counsel are generally aware of the

substance of the instructions which will follow,” 4 absent the submission of

proposed instructions in advance or a request for a prayer conference, it was not

plain error for the Superior Court to have proceeded to closing argument without

first holding a prayer conference.

       (9)    Lolley has also failed to demonstrate how the alleged error caused

sufficient prejudice to deprive him of a substantial right or result in manifest

injustice. The parties were proceeding in the second trial using the same jury

instructions as in the first trial. Lolley would therefore have had notice of what

would be in the jury instructions before closing arguments. The jury instructions

in the two cases were largely identical, 5 the prayer conference at the second trial

mostly involved modifying the instructions to be consistent with the remaining

drug dealing charge, and the prosecutor conducted his closing argument as if he

was fully aware of what would be in the jury instructions.6 Lolley has failed to

show that he had any reason to believe the accomplice liability instruction would

not be given in the second trial.
4
  DeAngelis v. Harrison, 628 A.2d 77, 80 (Del. 1993).
5
  The jury instructions in the two cases were largely identical to the extent they related to the
drug dealing charge. The instructions relating to conspiracy and to the prescription drug crime
were of course omitted in the second trial.
6
  E.g., App. to Opening Br. at 45 (“Element of knowingly, as you’ll hear in the instructions from
[the judge], it’s incredibly difficult to know what’s going on in the mind of another person.”).




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       (10) Further, Lolley has not shown how defense counsel would have

changed strategy had the prayer conference been held before closing arguments. In

the first trial, where Lolley did not object to the accomplice liability instruction, he

claimed he was present in the motel room because of a social relationship with

Frankel, and not as a participant in any drug dealing crimes. 7 In the second trial,

he offered essentially the same defense. 8 This defense did not amount to a

concession of accomplice liability, and was probably the most plausible defense

available considering the substantial circumstantial evidence against Lolley.

Accordingly, the order of the prayer conference did not amount to an error that

plainly deprived Lolley of a substantial right or clearly showed manifest injustice.

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

Superior Court is AFFIRMED.

                                                      BY THE COURT:


                                                      /s/ Collins J. Seitz, Jr.
                                                             Justice




7
  App. to Answering Br. at 7 (“The only thing that the State has proven beyond a reasonable
doubt today is that Mr. Lolley has very questionable taste in girlfriends but not that he’s out
dealing drugs.”).
8
  App. to Opening Br. at 47 (“[I]f it’s possible that [Lolley] went to go see [Frankel] . . . and she
was dealing drugs, . . . [Lolley] gets the benefit of that explanation. I could go on. I could
explain to you all the evidence, but I think that really sums up my argument, which is that if
there is an innocent possible explanation that you need to find [Lolley ] not guilty.”).




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