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Bullock v. State6/27/2001
of which he was aware. He thus cannot demonstrate that his substantial rights were prejudiced by the trial court=s failure, sua sponte, to instruct the jury pursuant to 11 Del. C. ' 263.
I recognize that there may be unusual situations where the absence of a constitutionally-required portion of a jury instruction cannot be deemed as waived by counsel=s action or inaction. But the remedy for such egregious error may be a claim of plain error in a direct appeal or a claim of ineffective assistance of counsel under Super. Ct. Crim. R. 61. An expansive application of the doctrine of plain error, however, to accommodate arguably insufficient jury instructions, as is this case, is not the answer. Accordingly, I dissent.
Hon. Richard R. Cooch
Raymond M. Radulsk
James D. Nutter
Kim Ayvazian
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