SUPER[OR COURT
oFTHE

STATE OF DELAWARE

W'l-L-'AM L- W!THAM, JR-»- KENT c0uNTY couRTl-lous£
RES{DENTJUDGE   

DOVER, DELAWARE 19901
August l2, 2016

TELEPHONE (302) 739-5332

Joseph A. Hurley, Esquire
Kevin P. Tray, Esquire

1215 King Street
Wilmington, Delaware 19801

Zachary A. George, Esquire
Department of Justice

102 West Water Street
Dover, Delaware 19904

Re: State of Delaware v. Gregory E. Ligon, Jr.
I.D. No. l5l0016086
Letter Decision on Defendant’s Motion to Dismiss Amended Indictment

Upon consideration of the Defendant’s motion to dismiss an amended
indictment and the State’s response thereto, it appears that:

1 . On January 4, 2016, Defendant Gregory E. Ligon, Jr. ("Ligon") was indicted
for a single count of vehicular assault in the first degree, six counts of vehicular
assault in the second degree, and one count of driving a vehicle while under the
influence of alcohol ("DUI"). As indicted, each of the seven vehicular assault
charges included a mens red of criminal negligence and alleged serious physical
injury. On June 6, 20l6, a Grand Jury re-indicted Ligon for a single count of
vehicular assault in the first degree, six counts of vehicular assault in the second
degree, and one count of DUl. Although the titles of the charged offenses were

identical, the elements specific to the charges of vehicular assault had changed.

State v. Gregorjy E. Ligon, Jr.
I.D. No. 1510016086
August l2, 2016

2. In the first count of the re-indictment, vehicular assault in the first degree,
the mens rea was reduced from criminal negligence to negligence. Vehicular assault

in the first degree is codified in ll Del. C. § 629 and requires a mens rea of

1

negligence as opposed to that of criminal negligence. The re-indictment merely

corrected the mens rea to comply with the statute.

3. In counts two through seven, each for vehicular assault in the second
degree, the mens rea was reduced from criminal negligence to negligence, the damage
element was changed from serious physical injury to physical injury, and the element
of DUI was added. Vehicular assault in the second degree is codified in ll Del. C.
§ 628A and contains a disjunctive sets of elements contained in two subsections.z If

alcohol is not a factor in the alleged assault, then subsection (l) is applicable. Under

1 ll Del. C. § 629 states:

A person is guilty of vehicular assault in the first degree when while in the course
of driving or operating a motor vehicle and under the influence of alcohol or
drugs or with a prohibited alcohol or drug content, as defined by § 4l77 of Title
2l, the person’s negligent driving or operation of said vehicle causes serious
physical injury to another person.

Vehicular assault in the first degree is a class F felony.

2 ll Del. C. § 628A states:

A person is guilty of vehicular assault in the second degree when:
(l) While in the course of driving or operating a motor vehicle, the person’s
criminally negligent driving or operation of said vehicle causes serious
physical injury to another person; or
(2) While in the course of driving or operating a motor vehicle and under the
influence of alcohol or drugs or with a prohibited alcohol or drug content, as
defined by § 41 77 of Title 2l, the person’s negligent driving or operation of
said vehicle causes physical injury to another person.

Vehicular assault in the second degree is a class A misdemeanor.

2

State v. Gregory E. Ligon, Jr.
I.D. No. l5l00l6086
August 12,_ 2016

subsection (l), a person is guilty of vehicular assault in the second degree if they
drive in a criminally negligent manner and cause serious physical injury to another
person. However, if alcohol is a factor, then subsection (2) is applicable. Under
subsection (2), a person is guilty of vehicular assault in the second degree if they
operate a motor vehicle under the influence of drugs or alcohol, operate their vehicle
in a negligent manner, and cause physical injury to another person. Ligon has been
charged with DUI, and the re-indictment reflects the DUI charge by changing the
elements of counts two through seven from those contained in subsection (l) of ll
Del. C. § 628A to those contained in subsection (2).

4. Article I, section 8 of the Constitution of the State of Delaware prohibits the
State from initiating criminal proceedings by information when a person is arrested
for an indictable offense. The Delaware Constitution thus protects citizens from
unfounded State prosecutions by requiring the State to prove to a jury of the
defendant’s peers, a Grand Jury, that the charges are justified. At its common law
roots, an indictment could only be amended by the Grand Jury that had retumed the
true bill. However, common law evolved to allow judicial amendments so long as
those amendments did not affect the substance of the indictment.$ Thus, Superior
Court Criminal Rule 7(e) states "the court may per1nit an indictment or an information
to be amended at any time before verdict or finding if no additional or different
offense is charged and if substantial rights of the defendant are not prejudiced."

5. Ligon claims that the changes to the indictment are an amendment and that

3 Id. at 25-26-,

State v. Gregory E. Ligon, Jr,_
I.D. No. l5l00l6086
August l2, 2016

the new indictment incorporates changes in the burden of proof. Ligon notes that the
changes have come after preparing a defense based on a standard of criminal
negligence, and contends that requiring a revamp of the defense based on the lower
standard of negligence so close to the trial date will result in prejudice. Insomuch as
the changes are the result of a re-indictment by a Grand Jury rather than an
amendment approved by the Court, Ligon’s claim must fail.

6. Ligon cites numerous cases that uphold the rule that the Court may not make
any substantive amendment to an indictment and that only amendments as to form are
allowed. Ligon is correct in stating that the Court may not make substantive
amendments to the indictment, and is also correct when noting that the changes made
in the re-indictment are substantive. However, the changes made in the re-indictment
were not amendments approved by this Court. Rather, the changes are the result of
a re-indictment issued by a duly sworn Grand Jury. Because the substantive changes
in the indictment were made by the Grand Jury by way of re-indictment, Ligon still
benefits from the protections envisioned in article I, section 8 of the Delaware
Constitution. The State has proved to a Grand Jury that the charges against Ligon in
the re-indictment are justified, and the State is now allowed to proceed to the next
step in the prosecutorial process.

7. Ligon claims prejudice because he is now required to present a defense
based upon negligence rather than criminal negligence and that an expert witness
must now be retained to inspect Ligon’s automobile. Any prejudice suffered by

Ligon is wholly mitigated. The Court has granted a continuance and a new trial date

State v. Gregory E. Ligon, Jr.
I.D. NO. 151()()16()86
August 12, 2016

has not been set. Ligon will be given the opportunity to prepare a defense based upon
negligence and physical injury as opposed to criminal negligence and serious physical
injury.

8. Moreover, a review of the statutory elements for Vehicular Assault in the
First and Second degrees should have alerted Ligon to the possibility of re-indictment
because the elements in the first indictment were misstated. The statutory burden for
Vehicular Assault in the First Degree requires the State to prove DUI, negligence, and
serious physical injury. Vehicular Assault in the Second Degree contains different
burdens of proof depending on whether alcohol is a factor. Counsel for Ligon was
aware that the State was charging Ligon with DUI, should have been aware of the
statutory provisions in ll Del. C. § 628A, and thus should have been prepared for a
possible re-indictment based on the alcohol factor.

F or the foregoing reasons, Ligon’s motion to dismiss the re-indictment is
DENIED.

IT IS SO ORDERED.

William L. Witham, Jr.
Resident Judge

WLW/dmh

oc: Prothonotary

xc: Zachary A. George, Esquire
Joseph A. Hurley, Esquire
Kevin P. Tray, Esquire

