IN THE SUPREME COURT OF THE STATE OF DELAWARE

Plaintift` Below-
Appellee.

NATI-IANIEL GONZALEZ, §
§ No. 336, 2016
Defendant Below- §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§
STATE OF DELAWARE, § ID No. 1506000814
§
§
§

Submitted: February 22, 2017
Decided: March 31, 2017

Before STRINE, Chief.lustice; VALIHURA and VAUGHN, Justices.
0 R D E R

On this 31st day of March 2017, it appears to the Court that:

(l) Appellant, Nathaniel Gonzalez, appeals from a Superior Court jury
verdict finding him guilty of two counts of Assault First Degree, one count of Assault
Second Degree, three counts of Possession of a Firearm During the Commission of
a Felony (“PFDCF”), and three counts of Conspiracy Second Degree. Gonzalez
frames his appeal as making one claim, but it contains parts. He contends that the
trial court abused its discretion by providing the jury with a supplemental instruction
on accomplice liability after the jury had begun deliberations, and he also contends
that once a decision was made to give the instruction, the instruction should have

included an instruction on individualized culpability under ll Del. C. § 274.

Gonzalez contends that these errors deprived him of a meaningful opportunity to
present a complete defense.

(2) On l\/lay 31, 2015, the New Castle County Police were dispatched to
Christiana Hospital to speak with victims of a shooting that had occurred at
Lancaster Court Apartments. Upon arrival at the hospital, Ofticer Jonathan
Feliciano was able to speak to one of the victims, Gabriel Juarez, Jr. (“.luarez, Jr.”).
The other two victims of the shooting were already in the operating room at that
time. Officer Feliciano took Juarez, Jr. back to the Lancaster Court Apartments, the
scene of` the crime. Upon their arrival at the apartment complex, the scene was
taped off, and other officers had secured the area. Juarez, Jr. confirmed that the
scene was the location of the shooting and Officer Feliciano transported him back to
the hospital.

(3) Following the shooting, Nathanial Gonzalez (“Gonzalez”) and his
brother, Isaiah Gonzalez (“Isaiah”), were identified as suspects While at the scene
of the shooting, the police discovered what appeared to be a bloody shoeprint that
crossed the threshold of the door to apartment A. Based on that information, the
New Castle police obtained and executed a search warrant on apartment A. During
the search of the apartment, the police recovered a blood»stained hat, a long gun case

for either a rifle or a shotgun, and ammunition for .20 gauge and .12 gauge shotguns.

[~J

The detectives also found evidence that Gonzalez and Isaiah were occupants of` the
apartment

(4) During the investigation, the three victims were each shown two photo
line-ups, one containing a photo of Gonzalez and one containing a photo of lsaiah.
One of the victims was able to make identifications of` Gonzalez and lsaiah.
Following the identifications via the photo line-ups, arrest warrants were issued f`or
Gonzalez and Isaiah. Three days after the shooting, both were taken into custody.
Ai`ter Gonzalez was arrested, he was interviewed by the New Castle County Police.
l-Iis taped interview was played during the trial.

(5) Prior to Gonzalez’s trial, lsaiah resolved the charges against him by
pleading guilty to Conspiracy and PFDCF. During Gonzalez’s trial, Isaiah testified
on behalf of the defense. l-Ie stated that on May 31, 2015, he and Gonzalez went to
a family barbeque. Isaiah stated that he and his brother separated and Isaiah
returned to his apartment Gonzalez returned to the apartment later and seemed
scared. lsaiah heard a commotion outside the apartment, and when he opened the
door, he saw about five men approaching in the vestibule, shouting and “throwing

up gang signs.” One pointed at a gang tattoo. The men did not have any weapons.

Isaiah, however, loaded a shotgun. He said the men were trying to come into the

 

' App. to Appeilant's Opening Br. at 100.

apartment and were attacking the two of them. lsaiah pointed the .12 gauge,
double-barrel shot gun, which he held at them, and told them to leave, but they began
pulling on the weapon, and because his finger was on both triggers, he testified, the
weapon went off during the struggle, firing two shots simultaneously I-le testified
that one person was struck by the shotgun blasts. Then the men took the gun from
Isaiah, and pointed it at Gonzalez and Isaiah, but the gun was out of ammunition.
The men then began to leave and lsaiah left the apartment and ran in the opposite
direction from them.

(6) Gonzalez testified on his own behalf. He testified that on the evening
of` the incident, he was walking horne with three friends from a barbeque when he
passed a group of men. He stated that the when he and his friends arrived at his
apartment, they all stayed outside of his apartment while he smoked a cigarette. At
that point, Juarez, Jr. approached and began to say “South 13 Surenos,” the name of
a gang, in Spanish and was displaying gang signs with his hands.2 As the group of
men approached Gonzalez, Gonzalez told the group that he was not gang affiliated
His friends left.

(7) Gonzalez testified that he was threatened and that he had heard the word

 

2 ld. at 119.

“pistol” in Spanish.3 Gonzalez then retreated to his apartment l-le testified that
Isaiah was the only one home and that they were able to hear a commotion coming
from outside the apartment complex. Gonzalez testified that he retrieved two
shotguns from underneath the mattress of his back room. He stated that he returned
to the apartment door just as the group was entering the apartment complex. I-le
had one shotgun and Isaiah had possession of the other. Gonzalez testified that he
told Juarez, Jr., one of the men that entered the vestibule of` his apartment, to leave
the building He stated that the gun was pointed downward and that he and Juarez,
Jr. began to struggle for the gun. At that point, the gun discharged After the
weapon was discharged, the struggle for the weapon continued. He stated that his
brother’s weapon discharged after his weapon. l-le then let go of the weapon in his
hands to help his brother. l-Ie testified that after his brother’s weapon discharged
twice, the group of men began to retreat. Gonzalez retrieved both of the shotguns
and then left the complex alone. Gonzalez stated that his girlfriend then picked him
up and dropped him off at 5th and Rodney. In response to a question about why he
used the shotgun, Gonzalez stated “I brought the shotguns out to more or less scare

them away to get them to back off, my intentions were never to, for any of that to

 

3 Id.ar 121.

happen the way it did.”4

(8) When Gonzalez was arrested, he was in possession of a cell phone,
which the police identified as being his. A photo of two shotguns was saved on
Gonzalez’s cell phone. Detectives also found numerous text messages on
Gonzalez’s cell phone discussing the shooting.

(9) The State called a fingerprint expert. The expert was able to determine
that the fingerprints lifted from a Winchester shots shell box found in the apartment
belonged to Gonzalez. The expert noted on cross-examination that additional prints
from a vitamin water bottle recovered at the scene matched Gonzalez as well.

(10) During the trial, Gabriel Juarez-Diaz (“Juarez-Diaz”) testified about the
events of l\/Iay 31, 2015. l-Ie testified that he went to the liquor store to purchase
beer and thenjoined a group of men that included his son, .Iuarez, Jr., two nephews,
and Felipe. The group decided to hang out outside of the Lancaster Court
Apartments. He timber stated that while they were at the apartments, a group of
four men passed them. Juarez-Diaz testified that the men turned around, came
back, and that is when the argument began. He stated that the group of unknown
men began verbally arguing with his nephews and then the argument became

physical. Juarez-Diaz testified that he attempted to separate the groups. He stated

 

4 ]d. at 127.

that during the altercation he was struck. Then, at some point after the fight outside,
the other group of unknown males went into the apartment building and returned
with guns. He stated that after the guns were brought out, his son and nephews
attempted to take them away from the unknown males. I-le stated that during this
struggle for the guns, one of the guns was fired and he was struck. He indicated
that he was struck in the upper right shoulder and injured on his left ring finger. On
cross-examination, Juarez-Diaz could not describe or remember who had shot him.
Juarez-Diaz’s injuries and the injuries of the other two victims were verified through
the testimony of other witnesses.

(l l) At the close of trial, the Court held a prayer conference during which
the parties discussed the jury instructions During this conference, there was no
discussion of accomplice liability. During closings, defense counsel discussed
Gonzalez’s claim of self-defense. ln addition, he argued that there was no intent
to cause serious physical injury. Defense counsel stated, “lt’s a shot to the foot.
I-Ie has the gun down, he’s shooting down, Where is the intent there to cause serious
physical injury to somebody‘?”5 In regard to the conspiracy charges, defense
counsel argued that the State failed to present evidence of an agreement between

Gonzalez and Isaiah. Defense counsel further stated:

 

5 [d. at 156.

In the law, you don’t get, everyone’s case is different, you
don’t get judged by the company that you keep, whether
it’s a stranger that’s next to you or whether it’s your own
blood, okay, everybody’s case is different because the
facts for everybody’s situation is different And so just
because Isaiah pled [sic] guilty, he was found guilty of one
of these offenses, does not mean that Nathaniel is guilty
for any of this.6
(12) After deliberations began, thejury submitted the following questions to
the court: (l) “On the Assault in the First Degree, intentionally caused serious
physical injury, does that mean he pulled the trigger orjust conspired with another
party to commit a crime?” and (2) “Can one be found guilty of assault in the first
degree if they didn’t pull the trigger?”7 The trial court indicated to counsel the
answer to both of the questions was “yes;” however the judge was concerned that

3 The judge

the jury may take a simple “yes” as “direct[ing] them to an answer.”
decided that it was most appropriate to answer their question with an instruction on
accomplice liability. Gonzalez’s defense counsel objected on the basis that the jury
was already instructed and that no additional instruction was necessary. The judge
rejected this objection and delivered an accomplice liability instruction to the jury.

After further deliberations, the jury found Gonzalez guilty of all charges, On June

24, 2016, the Superior Court sentenced Gonzalez to a total of 73 years at Level V,

 

t !d. ac 153.
7 ld. at 171-72.
8 ld. ar 172.

to be suspended after 19 years for six months of Level lV supervision, followed by
one and a half years of lesser supervision

(13) This Court reviews a trial judge’s decision to provide supplemental
instructions for abuse of discretion." I-lere, the trial court did not abuse its discretion
in deciding to provide a supplemental jury instruction on accomplice liability.
Thus, for the following reasons, the decision of the Superior Court should be
affirmed

(14) Under Superior Court Criminal Rule 30, the trialjudge must inform the
parties of the proposed jury instructions before the closing arguments."’ After the
submission of the case to the jury, the court in its discretion may provide
supplemental instructions based on a question submitted to the court by the jury
during deliberations 'l

(15) Gonzalez contends that the decision to provide a supplemental jury
instruction on accomplice liability was prejudicial to his presentation of evidence
and his closing argument, thus “effectively limit[ing] Gonzalez’s Sixth Amendment

nl]

Right to present and argue all legally available defenses Gonzalez relies largely

 

q Wriglzt v. State, 953 A.2d 144, 148 (Del. 2008).

'" “The court shall inform counsel of its proposed action upon the [requested jury instructions]
prior to their argument to the jury.” Super. Ct. Crim. R. 30.

ll Zimmerman \'. State, 565 A.2d 887, 890-91 (Del. l989); Sheeran v. State, 526 A.2d 886, 893-
94 (Del. 1987).

'3 App. to Appellant’s Opening Br. at 20.

on the fact that the State never requested such an instruction despite an opportunity
to do so and that the trial court judge never discussed such an instruction with the
parties during the prayer conference In fact, Gonzalez goes on to state that “[t]he
defense did not request such an instruction and was proceeding upon reliance that

there would be none.”‘3

ln the closing, defense counsel relied upon the defense of
justification, or self~defense. In addition, in his brief, Gonzalez submits that the
defense strategy throughout the trial was to place the blame on isaiah for the more
serious injuries that were sustained during the altercation Gonzalez further states
that if he had been aware that an accomplice liability instruction would be given, a
different trial strategy would have been utilized and he would not have chosen to
present lsaiah as a witness. ln addition, Gonzalez contends that his closing was
prejudiced as well because counsel’s argument largely discussed the relative
culpability of Isaiah and Gonzalez.

(16) Gonzalez suffered no prejudice as a result of the instruction. First, the
instruction was given in response to a jury question. Further, Gonzalez was charged

with conspiracy, and the jury instructions included a conspiracy instruction There

is substantial overlap between a conspiracy instruction14 and an accomplice liability

 

'3 Id. at 15.
'4 In pertinent part, the judge instructed the jury that in order to find Gonzalez guilty of Conspiracy
in the Third Degree, they must find that the State proved beyond a reasonable doubt that:

10

instruction.ls The only difference between the elements of accomplice liability and
conspiracy is that the accomplice liability instruction adds the words “aids” and
“counsels,” in addition to the word “agrees.”"’ The additional instruction did not
materially alter the issues in the case and did not conflict with Gonzalez’s
justification defense.

(17) Gonzalez’s counsel formed a strategy for the trial and pursued the idea
of self-defense and the relative culpability of both Isaiah and Gonzalez throughout
In addition, these arguments and strategies were in place before the submission of
instructions to the jury.

(18) There is no dispute that lsaiah and Gonzalez both used weapons on the
day of the shooting. lt was within the court’s sound discretion to provide a
supplemental jury instruction on accomplice liability given the facts of the case. lt

appears that the nature of thejury’s question was such that an answer from thejud ge

 

Nathanial Gonzalez agreed with lsaiah Gonzalez that one or more
of them would engage in conduct constituting Assault in the Third
Degree or an attempt or solicitation to commit Assault in the Third
Degree . . . or Nathaniel Gonzalez agreed to aid lsaiah Gonzalez in
the planning or commission of Assault in the Third Degree or an
attempt or solicitation to commit Assault in the Third Degree.

App. to Appel|ant’s Opening Br. at 166 (emphasis added).
'5 In pertinent part, the judge instructed the jury that "a person is guilty of an offense committed
by another person when; intending to promote or facilitate the commission of the offense, he aids,
counsels or agrees to aid the other person in planning or committing it." App. to Appellant’s
Opening Br. at 174 (emphasis added).
16 ld.

l I

must have necessarily touched upon the concept of accomplice liability. ln fact, the
trial court was hesitant to answer the jury’s questions outright with an affirmative
answer as he believed it would lead the jury to an “automatic negative for
[Gonzalez].”17

(19) Gonzalez also argues that the trial court abused its discretion by
providing the supplemental jury instruction on accomplice liability without
including an instruction on individualized culpability Gonzalez contends that by
failing to provide the additional instruction on individualized culpability, he was
deprived of his opportunity to present a complete defense.

(20) “This Court generally declines to review contentions neither raised nor

properly presented to the trial court for decision.”13

The failure to object generally
constitutes a waiver of that issue for purposes of appeal unless there is plain error. "’
l-lere, Gonzalez’s counsel objected to the supplemental jury instruction because the
State did not address accomplice liability when it had the opportunity and because

accomplice liability “was not available to counsel during closings.”20 At that point,

he did not request the additional instruction based on l l Del C. § 274.21 Thus, the

 

'7 Id. at 173.
'“ Hm-ris i». Smre, 695 A.zd 34, 40 (Del. 1997).
w
Id.
20 App. to Appellant’s Opening Br. at 172.
3' “When, pursuant to § 271 of this title, 2 or more persons are criminally liable for an offense
which is divided into degrees, each person is guilty of an offense of such degree as is compatible
12

omission of such an instruction is not a reversible error unless it constitutes plain
error. l-lere, based on the defense and evidence presented at trial, the failure to
provide an instruction based on § 274 does not constitute plain error. Based on
Gonzalez’s own testimony, he admitted to using a gun, admitted to his brother’s
involvement in the incident, and presented evidence in support of a justification
defense. In finding him guilty of each charge of the indictment, the jury rejected
the defense as a whole. There is no evidence of plain error.

NOW, Tl-IEREFORE, lT lS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

 

 

with that person’s own culpable mental state and with that person’s own accountability for an
aggravating fact or circumstance." 1 1 Del. C. §274.
13

