State v. Smith

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) I.D. No. 2105010115
)
GEORGE F. SMITH, III, )
)
Defendant. )

Submitted: April 25, 2025
Decided: June 10, 2025

ORDER

The above matter exposed facts to a jury that were truly tragic.

George Smith (“Defendant” or “Mr. Smith”) suffered the loss of his father

shortly before the incident giving rise to the charges. His father owned an extremely

fast automobile – a Dodge “Hellcat.” For reasons unknown, the Defendant took the

Hellcat out onto I-495 northbound late one night and drove it at extreme speeds as it

crossed the 406 bridge over the Christina River and onto a long straightaway.

At speeds in excess of 140 miles an hour, he plowed into the rear of a woman

driving at normal speed on I-495. There was no evidence that he ever hit the brakes.

The woman’s car left the roadway, rolled several times and caught fire, killing the

sole occupant. Mr. Smith’s car stayed on the roadway, its front end demolished. He

survived with minor injuries.
After the accident, the usual testing revealed no alcohol or drugs in Smith’s

system. He expressed to the police only a vague understanding of what happened.

He did express deep concern whether anyone had been injured.

The State indicted Mr. Smith on charges of Murder, Second Degree –

recklessly causing death with a “cruel, wicked and depraved” state of mind – and

Possession of a Deadly Weapon (to wit – a car) during commission of a felony (to

wit – Murder Second Degree). After a trial and due deliberations, the jury convicted

the Defendant on both counts.

Defense Counsel has filed post-trial motions for a new trial and a separate

motion for judgment of acquittal. These motions will be dealt with by this Order.

STANDARD OF REVIEW

A post-trial motion for a new trial is governed by Rule 33, which empowers

the trial court to grant a new trial at defendant’s request if it is “in the interest of

justice” 1 to do so. The Defendant is entitled to a new trial “only if the error

complained of resulted in actual prejudice or so infringed upon a defendant’s

fundamental right to a fair trial as to raise a presumption of innocence.” 2 It is to be

noted that none of the claims made here are unique to this motion: all of them were

made before or during the trial, all were considered, and all have previously been

1
Super. Ct. Crim. R. 33.
2
Hughes v. State, 490 A.2d 1034, 1043 (Del. 1985).
2
ruled on by the Court. Likewise, it is to be noted that a review in the “interest of

justice” is not an invitation for the Court to substitute its judgment of the facts for

the jury’s verdict.3

Motions for judgment of acquittal are controlled by Rule 29, which allows

such motions when the evidence presented “is insufficient to sustain a conviction of

such offense or offenses.”4

ANALYSIS

I. The Motion for a New Trial

The Court begins this analysis by recognizing the obvious: the only “real”

issue in this case was whether the Defendant’s conduct was “merely” reckless, thus

meriting a conviction for manslaughter, or was aggravated beyond reckless, albeit

short of intentional conduct. From the opening statements, Defendant essentially

conceded his guilt to manslaughter. So the inevitable jury debate was always going

to be whether Defendant’s conviction would be for manslaughter or whether the

manslaughter was elevated to Murder Second Degree. In this connection, the Court

3
See United States v. Vastardis, 448 F. Supp. 3d 391, 395 (D. Del. 2020), aff'd, 19 F.4th 573 (3d
Cir. 2021), and aff'd sub nom. United States v. Evridiki Navigation Inc., 2023 WL 3734961 (3d
Cir. May 31, 2023) (quoting United States v. Silveus, 542 F.3d 993, 1004-05 (3d Cir. 2008)) (held
the court should not replace its judgment for the jury’s verdict on the facts, unless “there is a serious
danger that a miscarriage of justice has occurred – that is, that an innocent person has been
convicted.”).
4
Super. Ct. Crim. R. 29(a).
3
asked for input from both counsel as to how to approach the aggravating terms in

the jury instructions.

A. The Jury Instructions

After briefing from both sides, the Court was not convinced that it should

depart from the standard, pattern jury instructions, which provide admittedly

somewhat truncated definitions of these terms. The hazard is, and remains, that by

varying the standard instruction for some perceived “un-standard” case, there is the

risk of substituting the Court’s interpretation over the “common, ordinary” meaning

intended by the legislature.5 The standard Murder 2d degree instruction has been

given in innumerable cases and has withstood appellate scrutiny.6 Going “free-style”

has not.

The Court told the jury that undefined terms (such as “cruel, wicked and

depraved”) have their common meaning. In State v. Waters,7 the Supreme Court

faulted the trial court’s failure to even attempt to define these “common meaning”

terms, thus running afoul of the vagueness problem that was then swirling around

5
See Peak v. State, 734 A.2d 159, 159 (Del. 1999) (“Moreover, the adoption of pattern jury
instructions represents an institutional consensus by the Superior Court that these instructions
should be followed in all cases unless unusual circumstances dictate modification.”); see also
Andrews v. State, 34 A.3d 1061, 1063 (Del. 2011) (citing Duncan v. State, 791 A.2d 750, 750 (Del.
2002)) (“Undefined words in the criminal code are to be given their “commonly accepted meaning,
unless they are specifically defined elsewhere in Title 11.”).
6
See, e.g., McKinley v. State, 945 A.2d 1158, 1162-63 (Del. 2008).
7
443 A.2d 500, 504 (Del. 1982).
4
the criminal law in the form of the Capital Punishment Statute, prohibiting murders

that were “outrageously or wantonly vile, horrible and inhuman.”8 Thus, trial courts

were admonished to come up with some definition of “cruel wicked and depraved”

that fit within the term “common ordinary meaning.”9

To meet the mandate of State v. Waters, the Superior Court pattern jury

instruction defines these “common ordinary” terms as follows:

“‘Cruel’ describes the malicious infliction of physical suffering upon a human
being.”10
“‘Wicked’ describes a lack of conscience or morality.”11
“‘Depraved’ describes an indifference for human life.”12

These definitions are not new and not remarkable. They are the standard

instructions. If they are so erroneous as to require a new trial “in the interest of

justice,” then one supposes all Murder Second convictions over the past many years

are equally vulnerable. The Court believes the instructions are not erroneous, which

is why they were given. If they were wrong, the Supreme Court will tell us so, in

8
See Godfrey v. Georgia, 446 U.S. 420, 426-27 (1980).
9
Waters v. State, 443 A.2d 500, 506 (Del. 1982) (held it was plain and reversible error for the
Superior Court to refrain from providing the jury with a definition of “cruel, wicked and depraved
indifference to human life”).
10
Pattern Crim. Jury Instructions of the Sup. Ct. of the State of Del. at 264.
11
Id. at 265.
12
Id. at 265.
5
their time. The Court finds nothing in giving the pattern instruction that requires a

new trial in the “interest of justice.”

Defendants second argument, which is really just a variant of the first, is that

the term “depraved” was not sufficiently defined for the jury. While pointing to juror

confusion over the meaning of the terms, he confuses the jury confusion.

The jury did ask for clarification, focused, predictably, on the cruel, wicked

and depraved elements for Murder 2d degree. The Court used the standard definition

of “cruel” as the “malicious infliction of suffering,”13 but did not define “malicious.”

When the jury requested it, the Court gave the jury 3 dictionary definitions of the

term “malicious” and returned them to deliberate.14

Thereafter, the jury asked if they should focus on “the actions, the mindset, or

both when we are looking at the definition for cruel?” 15 In the same note, the jury

asked, “Can we have one concise definition for ‘malicious?’ The current definitions

provided all conflict with one another and cause more confusion.” 16

13
Id. at 264.
14
Court’s Ex. 5 (Dec. 6, 2024).
15
Court’s Ex. 6 (Dec. 6, 2024).
16
Id.
6
In response, the Court elected not to further define terms not defined by the

legislature. Rather, the Court admonished the jury to determine whether these facts

“fit” with a definition of “malicious” upon which they can all agree.

Defendant argues the Court left the jury without assistance in defining

“depraved.” Actually, the jury never asked for assistance in defining “depraved.”

The Court cannot speculate on what it would have done had the jury done so.

The essential question on a motion for new trial is whether an error in the trial

must be remedied by granting a new trial “in the interest of justice.” With full

recognition that the exact nature of what aggravates a reckless homicide to a murder

second degree is difficult, the Court does not find any manifest injustice in the record

leading to the jury’s conclusion.

B. Evidentiary Rulings

The third complaint involves the Defendant’s efforts to get evidence of his

state of mind in front of the jury without subjecting him to the perils of cross

examination. He made statements to a police officer at the scene indicating his

concerns whether anyone had been hurt in the accident. The Court made a ruling

that three of statements would be admitted under Rule 803(3) as they were

statements of his “then existing mental or emotional condition.” After the ruling,

defense counsel announced he had overlooked a fourth statement he wanted

admitted. The Court, in its discretion, decided the that fourth statement was merely

7
a repetition of the first three and was cumulative. That was not an abuse of discretion

and does not mandate a new trial in the interest of justice.

The fourth complaint is a different statement by the Defendant he wanted

introduced, again without facing cross examination. This statement occurred days

later, when he visited the tow yard and saw the two cars that were involved in the

collision. He was with his mother and a police officer. He was emotionally upset

and asked the officer “will God ever forgive me?” Unlike his crime scene

statements, his mental state 5 days later was not relevant and his statement was ruled

inadmissible under Rule 803(3). The Court ruled that it would allow testimony to

the effect that the Defendant was upset but would not allow specific, uncross

examined statements to be admitted. The Court believes those rulings were correct.

If they were not, the Court is certain the folks across the street will so advise; but

this Court does not agree that any error was so unfair as to require a new trial in the

interest of justice.

II. The Motion for Judgment of Acquittal regarding the automobile
as a weapon

The Defendant has filed a separate motion for judgment of acquittal with

respect to the indictment and conviction of Possession of a Deadly Weapon During

Commission of a Felony (“PDWCDF”). So we are clear, the State takes the position

that when an automobile is the instrument by which the Defendant commits a

felonious act, he is also guilty of the secondary offense of PDWDCF. And it will be
8
lost on nobody that the secondary offense carries an additional mandatory sentence

of two years added two whatever penal consequences flow from the primary felony.

Thus, the additional charge increases the State’s leverage against the Defendant and

has a substantial “real world” effect.

A “deadly weapon” under the Model Penal Code was defined to include guns,

knives, bludgeons and the usual things we think of as “weapons.” 17 Before 1992,

these implements could be distinguished from a separately defined category called

“dangerous instruments.” Dangerous instruments included “any instrument, article,

or substance which, under the circumstances in which it is used, attempted to be

used, or threatened to be used, is readily capable of causing death or serious physical

injury.”18 Notably, there was no crime carrying a mandatory sentence called

“possession of a dangerous instrument during commission of a felony.” Were we

analyzing Defendant’s claim prior to 1992, the claim would have merit, for the

automobile in question was surely “used” to cause the injury, but it is not a typical

“weapon” in that it has many pro social, non-lethal uses.

But in 1992, the General Assembly changed all that. In its synopsis of the

change, the legislature said “In the recent past, a number of brutal murders and

17
11 Del. C. § 222(6)(a).
18
11 Del. C. § 222(5)(a).
9
assaults have been committed with common objects such as bowling balls,[19]

baseball bats,[20] ratchet bars from tire jacks,[ 21] and cast-iron kitchen sinks[22].”23

In order to bring these instruments within the mandatory sentencing provisions of

PDWDCF, the legislature amended the definition of “deadly weapon” to include any

“dangerous instrument” “which is used, or attempted to be used, to cause death or

serious physical injury.” Put differently, dangerous instruments became deadly

weapons – and within the mandatory sentencing scheme for PDWDCF – whenever

they caused injury.24

Defendant’s argument here accuses the prosecution of “overreach” in

including a motor vehicle as a “deadly weapon.” He cites the Court the Supreme

Court’s decision in State v. Stansbury 25 – a case involving a homicide by a barbell

19
See State v. Stansbury, 591 A.2d 188, 193 (Del. 1991).
20
See State v. Anderson, 616 A.2d 1214, 1214 (Del. 1992).
21
See Walls v. State, 560 A.2d 1038, 1048 n.16 (Del. 1989).
22
See Outten v. State, 650 A.2d 1291, 1294-95 (Del. 1994).
23
Synopsis, S.B. 420 § 3, 1992, 136th Gen. Assemb. (Del. June 1, 1992).
24
If there was any doubt that the law’s drafters were actively seeking to expand the class of cases
subject to mandatory sentences, it is resolved by section 3 of the bill, which expanded the definition
of “firearm” to any firearm, whether “loaded or unloaded.” Thus, any would be gun-point robber
would no longer benefit from carrying an empty pistol – he might has well carry a loaded one as
the mandatory PFDCF sentence was thereafter the same either way. See S.B. 420 § 3, 1992, 136th
Gen. Assemb. (Del. 1992).
25
591 A.2d 188 (Del. 1991).
10
and a bowling ball. The Supreme Court reversed the weapons offense convictions

due to their not being “classic instrumentalities of crime.” 26 Unfortunately, however

unassailable that logic may have been in 1991, it was “overruled” by the legislature

in 1992 – indeed, emphatically so as homicide by “bowling ball” was referenced

specifically in the synopsis in 1992. 27 Thus, whether the prosecutor’s charge here

was “overreach” or merely “reach,” a motion for judgment of acquittal cannot be

sustained on that basis and the motion must therefore be DENIED.

IT IS SO ORDERED.

/s/ Charles E. Butler
Charles E. Butler, Resident Judge

Cc: Prothonotary
Barzilai K. Axelrod, Deputy Attorney General
Kristina G. Bensley, Deputy Attorney General
Joseph A. Hurley, Esquire

26
Id at 193. The Supreme Court was acutely aware that expanding the definition of “deadly
weapon” to include any instrument used to commit harm would bring the mandatory sentencing
provisions of PDWDCF into play. Id n.8.
27
Synopsis, S.B. 420 § 3, 1992, 136th Gen. Assemb. (Del. June 1, 1992); see also Clark v. State,
184 A.3d 1292, 1292 (Del. 2018) (citing Arnold v. Soc'y for Sav. Bancorp, Inc., 650 A.2d 1270,
1287 (Del. 1994)) (held courts may refer to legislative history as a guide in the interpretation of
statutes).
11