Curable Indictment Amendments Are Non-Jurisdictional; Prejudice-Driven Relief for Erroneous Felony-Murder Jury Instructions

Introduction

In Kellam v. State, 317 A.3d 289 (Del. 2025), the Delaware Supreme Court addressed two main postconviction issues arising from Steven Kellam’s racketeering and first-degree felony-murder convictions. Kellam had been sentenced to two life terms plus 770 years after a jury found him guilty as an accomplice in a series of home invasions that culminated in two murders. On Rule 61 review, he argued (1) that amending his racketeering indictment to drop two predicate offenses deprived the Superior Court of jurisdiction, and (2) that his trial counsel was ineffective for failing to secure a jury instruction under 11 Del. C. § 274 (limiting accomplice liability to matching mental states). The Court also considered the State’s cross-appeal of the Superior Court’s grant of relief on Kellam’s claim that counsel should have objected to an outdated felony-murder instruction.

Summary of the Judgment

The Delaware Supreme Court held:

Jurisdiction and Procedural Bars: The amendment of the indictment under Superior Court Criminal Rule 7(e) to remove two home-invasion predicates was a curable change—not a non-curable defect—and did not divest the court of jurisdiction. Kellam’s failure to object at trial rendered this claim procedurally barred under Rule 61(i)(3).
Ineffective Assistance: § 274 Instruction: Trial counsel’s strategic decision not to request a Section 274 instruction (an “all-or-nothing” approach) was objectively reasonable after a thorough investigation of the law and facts, and thus no Strickland violation occurred.
State’s Cross-Appeal – Felony-Murder Instruction: Although counsel performed deficiently by overlooking the outdated “in furtherance of” language, Kellam could not show a reasonable probability of a different result. The instruction did not create a new path to conviction—an accomplice-liability instruction was given and matched the State’s theory—so no prejudice under Strickland’s second prong.

Analysis

Precedents Cited

Fountain v. State, 288 A.2d 277 (Del. 1972): A curable defect in an information or indictment does not deprive the court of jurisdiction.
Ray v. State, 280 A.3d 627 (Del. 2022): Erroneous felony-murder instructions that introduce a new basis for conviction—without an accomplice instruction—are prejudicial.
Williams v. State, 818 A.2d 906 (Del. 2003): Prompted the 2004 amendment removing “in furtherance of” from the felony-murder statute.
Strickland v. Washington, 466 U.S. 668 (1984): The two-prong test for ineffective assistance—performance and prejudice—and deference to strategic choices.

Legal Reasoning

The Court’s opinion rests on three core legal principles:

Curable vs. Non-Curable Defects and Jurisdiction: Under Fountain, an amendment under Rule 7(e) that drops charged acts is “curable” and does not strip jurisdiction. Rule 61(i)(3) bars challenges not raised at trial; the “jurisdiction” exception in 61(i)(5) applies only to non-curable jurisdictional defects.
Strategic Decisions on Jury Instructions: Strickland presumes counsel’s choices reasonable when based on a thorough investigation. Declining a Section 274 instruction to avoid “life-without-parole” on lesser counts and maintain an “all-or-nothing” defense falls within the wide range of professional judgment.
Prejudice Requirement for Jury Instruction Errors: An erroneous instruction does not warrant relief absent a reasonable probability of a different outcome. Unlike Ray, here the felony-murder instruction error did not open a “new path” because an accomplice-liability instruction properly guided the jury, and the temporal elements (“while engaged in”) substantially overlapped with the court’s phrasing (“in the course of”).

Impact

This decision clarifies and refines Delaware law in two respects:

Indictment Amendments: Defendants may not challenge curable indictment amendments as jurisdictional defects on postconviction review. Rule 61(i)(3) will bar any unspoken objection absent cause and prejudice.
Jury Instruction Errors: Even a clear, substantive misstatement of law in a felony-murder instruction does not require reversal if the error did not create a new means of conviction and no “reasonable probability” exists that the verdict would differ. Trial counsel’s unintentional oversight still implicates Strickland, but relief hinges on prejudice, not mere error.

Complex Concepts Simplified

Felony-Murder Statute Change: Pre-2004, first-degree felony murder required that the homicide be “in the course of and in furtherance of” the underlying felony. Today, it requires only that the death occur “while engaged in” the felony.
Curable vs. Non-Curable Defects: A defect is curable if the court can amend the charging document to correct it. Only non-curable defects (e.g., lack of any statutory basis for jurisdiction) deprive the court of power to proceed.
Strickland Two-Prong Test:
1. Performance: Counsel’s conduct must fall below an objective standard of reasonableness.
2. Prejudice: There must be a reasonable probability that, but for counsel’s error, the verdict would differ.
Accomplice Liability (11 Del. C. §§ 271, 274): § 271 allows conviction for another’s crime if the defendant intended to facilitate it and provided aid or counsel. § 274 limits liability to the degree matching the defendant’s own mental state.

Conclusion

Kellam v. State reinforces three guiding principles in Delaware criminal law:

Procedural Finality: Challenges to curable indictment amendments must be raised at trial or are forfeited. Jurisdictional arguments cannot cloak routine Rule 7(e) amendments.
Deference to Strategy: Counsel’s informed “all-or-nothing” choice to forgo lesser-included instructions is protected by the Strickland presumption of reasonableness.
Prejudice is Key: Relief for jury-instruction errors requires more than an incorrect statement of law; a defendant must show that the error could reasonably have changed the verdict.

Together, these rulings ensure both the finality of convictions where defendants remain silent at trial and a disciplined, prejudice-focused approach to correcting instruction errors—safeguarding accuracy without inviting retrials for harmless mistakes.