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Pendry v. State

Delaware Supreme Court
367 A.2d 627 (1976)


Facts

Clifford Faulkner was dating the sister of Timothy and Kenneth Pendry (defendants). Faulkner lived intermittently in their sister’s trailer in a stormy relationship, and he was keeping her there against her will. The brothers confronted Faulkner, demanding he leave. According to the brothers, Faulkner refused, picked up a whiskey bottle, and threatened to kill them. Timothy left, returned with a shotgun, and killed Faulkner. Both brothers were tried for first-degree murder, Timothy as principal and Kenneth as his accomplice. At trial, defense counsel said in opening statements that both brothers would raise extreme emotional disturbance at the time of the shooting and had received psychiatric evaluations. But defense counsel presented evidence of extreme emotional disturbance only as to Timothy—not Kenneth. Some evidence showed Faulkner assaulted Kenneth two months earlier, but nothing showed that incident still affected Kenneth when the shooting occurred. The judge specifically asked defense counsel if he was not raising extreme emotional distress as an affirmative defense for Kenneth. Counsel replied, “Right. Not that Kenny personally was—he is charged as an accomplice, so he would be an accomplice to whatever Timmy is guilty of.” Apparently, defense counsel proceeded on that erroneous assumption and never introduced evidence supporting the defense for Kenneth. Thus, he had no right to a jury instruction on the issue, and the judge did not give one. The jury convicted both brothers of first-degree murder. Both appealed.

Rule of Law

Issue

Holding and Reasoning (McNeilly, J.)

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