## Facts

- Kenneth Pendry and Timothy Pendry went to a trailer where their sister was allegedly being held against her will by Clifford Faulkner, with whom she had a stormy relationship.
- The brothers confronted Faulkner and ordered him to leave.
- The defense claimed Faulkner refused, picked up a whiskey bottle, and threatened to kill them.
- Timothy left the trailer, returned with a shotgun, and fired three shots that killed Faulkner.
- Timothy was tried as the principal and Kenneth as an accomplice; both were convicted of first-degree murder and sentenced to life imprisonment.
- Timothy was also convicted of possession of a deadly weapon during the commission of a felony and received a concurrent 10-year sentence.
- The defense referenced extreme emotional distress (EED) in opening statements, but presented “some credible evidence” of EED only for Timothy; evidence as to Kenneth consisted mainly of a prior assault by Faulkner two months earlier without proof of continuing impact at the time of the shooting.
- The trial court instructed the jury on EED under 11 Del. C. § 641 as to Timothy, but did not give an EED instruction as to Kenneth, and refused to instruct on voluntary intoxication and justification.

## Issues

1. Whether giving an EED instruction under 11 Del. C. § 641 required reversal where the statute was later held unconstitutional.
2. Whether the trial court erred by refusing to instruct the jury on voluntary intoxication and justification.
3. Whether the court erred by instructing the jury to disregard defense counsel’s opening statement about the defendants’ lack of prior misdemeanor convictions.

## Decision

- The court held that the § 641-based EED instruction given for Timothy was error requiring reversal of his first-degree murder conviction.
- The court entered judgment against Timothy for manslaughter as a lesser-included offense and remanded for sentencing on manslaughter, without ordering a new trial.
- The court affirmed Timothy’s conviction for possession of a deadly weapon during the commission of a felony.
- The court affirmed Kenneth’s first-degree murder conviction because he failed to present “some credible evidence” of EED and therefore was not entitled to an EED instruction.
- The court found no error in refusing to instruct on voluntary intoxication or justification because the evidence did not warrant either defense.
- The court found no reversible error in the instruction to disregard the opening-statement comment about prior misdemeanors.

## Legal Principles

- When a jury instruction is given under an unconstitutional statutory framework governing an affirmative defense, a conviction obtained under that instruction may require reversal.
- If the record supports a partial defense that would permit conviction of a lesser-included offense, an appellate court may reduce the conviction to the lesser-included offense and remand for sentencing without a new trial.
- An affirmative defense such as EED is personal to the defendant; an accomplice does not automatically receive the principal’s mental-state defense without defendant-specific supporting evidence.
- A defendant is entitled to jury instructions on affirmative defenses only if there is “some credible evidence” supporting the elements of the defense.
- A trial court may instruct the jury to disregard improper statements in opening argument because openings are not evidence and may invite improper character inferences.

## Conclusion

The Delaware Supreme Court reduced Timothy Pendry’s first-degree murder conviction to manslaughter due to an erroneous EED instruction under an unconstitutional statute, affirmed his weapons conviction, and affirmed Kenneth Pendry’s first-degree murder conviction because he lacked evidence supporting EED and was not entitled to other requested defensive instructions.


Pendry v. State, 367 A.2d 627 (Del. 1976)