IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE
Submitted: May 4, 2001
Decided: August 31, 2001
OPINION and ORDER
Upon Defendant’s Motion for Postconviction Relief -- DENIED
On January 28, 1997, a jury convicted Craig Zebroski for two counts
of first degree murder and related crimes. After a separate penalty hearing, by a 9
-3 vote, the original jury recommended the death penalty. Taking the jury’s
recommendation into consideration and after reviewing the record, the court found
that the aggravating factors outweighed the mitigating factors and it imposed the
State v. Zebroski, Del. Super., Cr. A. Nos. IN96-06-1052, IN96-061053, IN96-06-1054, IN96-06-1055, IN96-06-1056, IN96-05-0699,
IN96-05-0701, Silverman, J. (Aug. 1, 1997), aff’d, Zebroski v. State,
Del. Supr., 715 A.2d 75 (1998).
On appeal, the Supreme Court of Delaware affirmed Zebroski’s
convictions and his sentence.2 Almost immediately after the Supreme Court issued
its decision, Zebroski filed a pro se motion for postconviction relief.3 In response,
this court appointed new counsel for Zebroski.4 His new counsel then filed an
amended motion for postconviction relief alleging ineffectiveness of Zebroski’s trial
and appellate counsel, and including requests to expand the record and for a hearing.
The court granted Zebroski leave to expand the record and it held a full evidentiary
hearing,5 followed by formal briefing. On May 4, 2001, the post-hearing briefing
was completed. Having considered Zebroski’s motion and amended motion, the
State’s response, Zebroski’s reply, the briefing and the record, the court finds that
Zebroski is not entitled to postconviction relief.
Zebroski v. State, Del. Supr., 715 A.2d 75 (1998).
Super. Ct. Crim. R. 61(b).
Super. Ct. Crim. R. 61(e).
Super. Ct. Crim. R. 61(h).
The Supreme Court thoroughly recites the case’s facts in its decision
affirming Zebroski’s conviction.6 In summary, on April 26, 1996, Craig Zebroski
shot and killed Joseph Hammond during a botched gas station robbery. On May 1,
1996, Zebroski was charged with two counts of first degree murder, one count of
attempted robbery first degree, three counts of possession of a firearm during the
commission of a felony, and one count of conspiracy second degree. Zebroski put
the State to its proof, but the trial focused on whether Zebroski acted intentionally
when he shot Hammond between the eyes. The penalty hearing centered on
Zebroski’s behavior after the shooting and his poor record, compared against his
youth, his substance abuse and the horrible circumstances surrounding Zebroski’s
See Zebroski, 715 A.2d at 77.
In his amended motion for postconviction relief, Zebroski presented
many allegations. In his opening brief, however, Zebroski has pared down his
claims. The court considers claims not appearing in the briefs to have been
abandoned after the evidentiary hearing. For example, Zebroski originally claimed
that counsel retained before his arrest improperly advised Zebroski to speak with the
police. As the State correctly asserted in its answer, no constitutional right to
effective assistance attached prior to his arrest.7
A person’s right to effective
assistance of counsel does not attach until judicial proceedings have begun.8
Presumably because he lacked persuasive authority, Zebroski dropped his claim
about counsel before arrest.
At this point, Zebroski alleges ineffective assistance of counsel for the
In part because trial counsel worked without cocounsel, he failed to “competently” investigate and
present a mitigation case;
Open-ended voir dire was inadequate and confusing
to prospective jurors;
“Delaware’s statutory scheme for the imposition of
See Shipley v. State, Del. Supr., 570 A.2d 1159 (1990).
Id. at 1166.
the death penalty following a conviction of first
degree murder violates the due process clause of
the United States Constitution”; and
Appellate counsel was ineffective by not
challenging the decision not to allow Zebroski’s
trial counsel to argue “residual doubt” at the
It is axiomatic that to prevail on a motion for ineffective assistance of
counsel, Defendant must meet the two-pronged Strickland test. The court will
address Strickland’s requirements more specifically as to each claim. Generally,
however, a defendant must show that counsel’s representation fell below an objective
standard of reasonableness and that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
Further, “review of counsel’s representation is subject to a strong
presumption that counsel’s conduct was professionally reasonable.”10 An ineffective
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1988). See also Wright v.
State, Del. Supr., 671 A.2d 1353, 1356, cert. denied, Wright v.
Delaware, 517 U.S. 1249 (1996); Skinner v. State, Del. Supr., 607 A.2d
1170, 1172 (1992).
Flamer v. State, Del. Supr., 585 A.2d 736, 753 (1990). See also Dawson
v. State, Del. Supr., 673 A.2d 1186, 1190, cert. denied, Dawson v.
Delaware, 519 U.S. 844 (1996) (Counsel’s efforts . . . enjoy a strong
presumption of reasonableness.” (citing Flamer); Wright, 671 A.2d at
assistance claim is not a question of hindsight or speculation about what trial counsel
could have done better.11 Rather, the question is whether trial counsel’s actions were
adequate. Finally, concerning Strickland’s second prong, prejudice, to prevail on a
Rule 61 motion, a defendant must make specific allegations demonstrating actual
prejudice and substantiate them.12
A. Trial Counsel’s Failure to Investigate and Present a Mitigation Case
Zebroski contends that he was prejudiced by trial counsel’s failure to
investigate properly and present a mitigation case in the penalty phase. First, as
mentioned above, Zebroski claims that trial counsel improperly “handl[ed] this
capital murder defense on his own.” He argues that defense counsel’s solo effort
caused “delay in the information gathering process” and resulted in “appropriate
See Gattis v. State, Del. Supr., 697 A.2d 1174, 1178 (1997), cert.
denied, Gattis v. Delaware, 522 U.S. 1124 (1998); Wright, 671 A.2d at
Wright, 671 A.2d at 1356 (citing Super. Ct. Crim. R. 61(b)(2) and
Younger v. State. Del. Supr., 580 A.2d 552, 555-556 (1990)).
[contacts] never interviewed or considered as witnesses at trial.”
Second, Zebroski claims that because the public defender’s office
supposedly “did not begin to investigate Zebroski’s background until trial had
already begun,” trial counsel failed in his duty to investigate. He argues that he was
prejudiced by this delay, since “probably the most powerful mitigation evidence,”
Zebroski’s home life, was not explored and presented adequately.
Finally, Zebroski claims that defense counsel failed to present and
explain Zebroski’s phencyclidine abuse to the jury adequately. Because PCP affects
a person’s behavior and “alters the fine motor control of an individual,” Zebroski
maintains that this factor is especially important for deciding intent. He contends
that the PCP evidence might “have a direct bearing on the level of culpability that
the jury might attribute to [him] for this crime.”
1. Solo Representation
While modern Delaware practice usually involves more than one trial
attorney for a capital defendant, there is no per se requirement that every capital
murder defendant must have a team of lawyers. As presented below, Zebroski’s trial
counsel was very experienced in representing capital murder defendants, with and
without co-counsel. In a relatively straightforward case like this one, which did not
involve sophisticated scientific analysis or many witnesses, a single defense lawyer
stands in contrast to the State’s host. The jury heard Zebroski’s position in one,
consistent voice. As to Strickland’s first prong, the court will not find that Zebroski’s
trial counsel was ineffective simply because he represented Zebroski by himself.
And as discussed next, Zebroski has not proved that any specific act or omission by
his trial counsel deprived Zebroski of objectively reasonable representation, much
less that Zebroski suffered prejudice.
Zebroski’s trial attorney is among the most seasoned criminal litigators
in Delaware. Since he started practicing law in 1972, trial counsel has represented
almost 25 capital murder defendants. After 1991, when the death penalty statute was
changed to its current form, trial counsel, by his count, “probably handled close to
an average of two a year.” He estimates that he has represented ten capital
defendants with co-counsel, and he has represented 15 capital murder defendants by
Zebroski’s trial attorney did not volunteer for this case. He speculated
that he was assigned to represent Zebroski by himself because the public defender’s
office “was probably stretched fairly thin.” So, trial counsel assumes that he was
assigned to represent Zebroski alone because his superiors probably thought he could
handle the case by himself. In any event, Zebroski’s trial counsel does not support
the claim that he lacked resources and that he was overwhelmed by having to
represent Zebroski at trial and penalty hearing, without co-counsel.
2. Failure to Investigate and Prepare
The court agrees with the State that Zebroski’s claim that defense
counsel failed to investigate, also is unsupported.
The court completely rejects
Zebroski’s claim that his trial counsel did not begin to investigate Zebroski’s
background “until trial had already begun.” In fact, trial counsel spoke with
Zebroski’s mother even before Zebroski was charged. Before trial, Zebroski’s trial
counsel ordered and obtained a detailed evaluation by a reputable psychologist.
From the outset, the public defender’s office provided logistical support for trial
counsel, including social workers, psychologists and other investigative case
workers. The record reveals that trial counsel still was assembling the mitigation
case even after the trial was underway. But that is a far cry from any suggestion that
trial counsel was not working on mitigation until after the trial had started. As the
State notes, defense counsel brought in and questioned friend, family member and
medical expert witnesses. They testified clearly and convincingly about Zebroski’s
substance abuse history and his extremely abusive upbringing.
Zebroski’s claim that his mother was “never properly dealt with to
maximize her effectiveness as a mitigation witness for her son” is legally and
factually incorrect. As a matter of law, trial counsel was not required to “maximize”
the mother’s effectiveness. Trial counsel legally was bound to use Zebroski’s
witnesses in an objectively reasonable way. In fact, Zebroski is asking the court to
engage in hindsight and speculation forbidden by Strickland. Without belaboring the
unfortunate details again, Zebroski’s mother has a challenging clinical history.
Zebroski’s current counsel do not elaborate on how trial counsel, as a reasonable
practitioner, could have employed this troubled person more effectively. Much less
do they explain how trial counsel’s supposed failure prejudiced Zebroski.
As the State points out and as alluded to above, trial counsel called
Mandell Much, Ph.D., at trial. Dr. Much’s testified as to “Zebroski’s personal
history” as well as “the impact of Zebroski’s substance abuse, including the effects
of . . . PCP.” And as presented below, trial counsel called a close family friend who
testified about Zebroski’s violent home life and his struggles.
3. Substance Abuse
As for the post-trial emphasis on the implications of his drug use,
Zebroski’s argument about trial counsel’s failure to pursue PCP’s impact on
Zebroski’s fine motor control is self-contradictory. If Zebroski is suggesting that
PCP affected his fine motor control and that helps explain why the handgun went off,
it leaves open the question as to how the bullet hit the victim almost exactly between
Also, Zebroski’s current counsel downplays the pivotal fact that
Zebroski’s drug use was voluntary. While it helps explain why he intentionally shot
a defenseless gas station attendant during an attempted robbery in the middle of the
night, Zebroski’s voluntary drug use does not provide a legal excuse.13 At best, it is
marginally helpful. Like the court explained in its sentencing decision, Zebroski’s
drug use was a double-edged sword as a sentencing consideration.
The court recalls that the evidence presented by trial counsel about
Zebroski’s childhood was sad and potentially compelling. The testimony of
Maureen Porter, a responsible family friend, was especially poignant. After learning
how Zebroski was abused physically and emotionally, the jury and the court had to
sympathize with Zebroski and appreciate how, through no fault of his own, he had
11 Del. C. § 432. See Wyant v. State, Del. Supr. 519 A.2d 649, 653-660 (1986)
(Defendant not permitted to call expert concerning effects of defendant’s voluntary
intoxication on his “mental state, volition or ability to form the intent necessary . . .
almost no chance to develop into a non-violent, clear thinking, productive person.
Zebroski’s trial counsel very effectively made Zebroski’s own tragic circumstances
clear. But if trial counsel had pulled out the stops even more, the court would have
taken that into account during its final weighing process. Had the penalty hearing
been even more emotional or sentimental than it was, that would have undermined
the court’s confidence in a more favorable recommendation.
As to Strickland’s prejudice test, Zebroski argues conclusions. The
court agrees with the State that Zebroski “‘has failed to identify the witnesses and
indicate what their potential testimony might be’ and this Court cannot speculate
concerning that evidence.”14 It is difficult even to imagine how any additional
evidence would not have been cumulative.
Zebroski misses the point that the jury saw a graphic picture of
Zebroski’s destructive childhood.
Meanwhile, the State’s evidence about
aggravating circumstances was solid and chilling. Zebroski’s record was shocking
and his behavior after the murder was cold-blooded. Even in hindsight, Zebroski
offers no theory as to how trial counsel could have persuasively minimized, much
less rebutted, the picture of Zebroski posing with the murder weapon, threatening his
See Outten v. State, Del. Supr., 720 A.2d 547, 553 (1998).
accuser from prison, voicing hope for an escape, showing no interest in rehabilitative
activities, and so on. All Zebroski really suggests is that his trial counsel should
have further emphasized what he already established. Zebroski has not proved his
conclusion that trial counsel’s actions fell below an objectively reasonable standard,
and that his case’s outcome would have been different, but for anything his trial
counsel failed to do or that he did but should not have done.
B. Voir dire During Jury Selection
Delaware does not require a unanimous verdict for the death sentence.
Instead, the trial judge makes the ultimate decision whether to impose the death
penalty.15 Zebroski claims that because Delaware is an “advisory state,” jury
selection is “the most critical phase of the entire proceeding.” He specifically
Because one or two swing votes recommending a life
sentence may persuade a trial judge to spare a capital
defendant from a death sentence, jury selection is crucial
in determining one’s fate.
Zebroski argues that “inadequate voir dire constitutes a ‘colorable constitutional
claim.’” He alleges that “lack of juror comprehension and the inadequate closed-end
11 Del. C. § 4209(d) (1995). Compare 11 Del. C. § 4209(d) (1987).
questions which do not reveal the accurate information sufficient to identify the life
and death qualified jurors”
render his trial’s jury selection process “wholly
To support his claim, Zebroski cites jury expert Valerie P. Hans,
Ph.D.’s, evidentiary hearing testimony. She testified that she reviewed the voir dire
and reached several conclusions:
some of the most important concepts for the jurors
to understand were never fully explained to them;
the context material provided by the court was at
best confusing and at worst misleading; and
the death and life qualifying questions used by the
court, due to their wording, rarely reveal the
potential jurors’ “true feelings,” because the
questions are “closed ended” in that they suggest a
socially desirable answer, that is, the answer that
would make the juror a fair person.
Challenges to jury selection, including the adequacy of voir dire, should
be made during direct appeal. Accordingly, Superior Court Criminal Rule 61's
procedural bars come into effect.16 By characterizing his claim as constitutional,
Zebroski apparently asks to be excused for not raising voir dire on appeal.17 The
court does not view its alleged failure to pose more open-ended questions during jury
selection as amounting to “a colorable claim that there was a miscarriage of justice
because of a constitutional violation that underminded the fundamental legality,
reliability, integrity fairness of the proceedings leading to the . . . conviction.”18
Therefore, Zebroski’s challenge to jury selection comes too late for Rule 61's
purposes. And besides, the court is satisfied that the voir dire was adequate and that
Zebroski suffered no harm from it.
Superior Court Criminal Rule 61(i)(3).
Superior Court Criminal Rule 61(i)(5).
The Delaware Supreme Court has spoken on jury voir dire questioning.
Manley v. State,19 rejects similar complaints about so-called open-ended voir dire
questions. Manley specifically holds that “open ended questioning is not required
in order for the voir dire to be constitutionally adequate.”20 This court need not
speculate about voir dire. The jury voir dire comports with Manley, and does not
run afoul of the Constitution or Delaware law.
The court agrees with the State’s position that this court may
independently reject Zebroski’s argument on the basis of State v. Wright.21 The State
correctly asserts that Wright “rejected Hans’ position that open ended voir dire was
necessary to secure a fair and impartial jury.” For Zebroski, as the State points out,
Hans presents no new evidence from that already presented and rejected in Wright.
Del. Supr., 709 A.2d 643, cert. denied, Manley v. Delaware, 525 U.S. 893 (1998).
Id. at 655.
Del. Super., Cr. A. Nos. IN91-04-1947R2 thru 1953R2, Del Pesco, J.
(Sept. 28, 1998) Mem. Op. at *11-14, aff’d, State v. Wright, Del. Supr.,
746 A.2d 277 (2000).
Here, Hans fastened on voir dire for 16 prospective jurors. Only one
of those prospective jurors actually sat on the jury. Moreover, after general voir dire,
the court conducted face-to-face voir dire with each potential juror, including the
actual juror who drew Hans’ particular attention. As the State correctly points out,
the court “ultimately cleared up situations where a juror exhibited any sign of
confusion (or nervousness).” Careful review of the entire jury selection shows
considerable back-and-forth between the court and counsel and between the court
and the prospective jurors. Overall, the process was unhurried and almost
collaborative. Time and again, prospective jurors asked questions and voiced
concerns. In several instances, several jurors spoke up after they were seated. This
highlights the fact that prospective jurors understood that they were involved in
something complicated and important. Of course it is possible that a juror might
hide his or her confusion, but Dr. Hans’ view of jury selection and of potential jurors
excessively discounts the experienced trial participants’ perceptions and is overly
cynical. While the court appreciates Dr. Hans’ suggestions, they are in no way
Despite the voir dire’s supposed limitations, it eliminated 15 of Hans’
16 suspect jurors.22 That fact undermines the expert’s concerns and it brings into
specific relief the importance of courtroom dynamics. The people who actually saw
the voir dire could appreciate each potential juror’s possible shortcomings and
respond to them. As for the one questionable juror who actually sat on the jury, Ivy
B., Juror No. 3,23 the record reflects thorough communication between the juror and
Hans’ contention regarding Juror No. 3, was that the juror replied “I
don’t know” to a question and asked that the question be repeated. The actual
exchange went as follows:
THE COURT: If you found Craig Zebroski guilty of
murder in the first degree, would you automatically vote
in favor of a sentence of death irrespective of the facts or
the court’s instructions on the law.
JUROR: I don’t know. Ask that again.
THE COURT: If you found Craig Zebroski guilty of
murder in the first degree –
JUROR: Would I automatically –
Hans offers concern about another juror, Ann A., who was seated as Juror No. 6.
Before jury selection finally ended, however, the juror pleaded to be excused for
various reasons and she was.
Zebroski and Hans refer to Ivy B. as Juror No. 4. Actually, after the juror originally
seated as Juror No. 2 was excused during jury selection, the final panel was renumbered.
THE COURT: Then go on to vote in favor of a sentence
of death irrespective of the facts or the court’s instructions
on the law.
This exchange fails to show any fundamental misunderstanding regarding the
“automatic death penalty” question. Rather, the conversation demonstrates effective
communication between the court and the juror. As the exchange shows, the juror
was intent on understanding the capital sentencing process and her concern cleared
as the court started to elaborate for her.
According to her juror questionnaire, Juror No. 3 was a 39 year old,
high school graduate. She was employed as a sales support supervisor. Her husband
was employed as a planner/scheduler. Her juror questionnaire also revealed that she
had previous jury experience.
There is no reason to conclude that the juror was confused about
anything, nor that trial counsel had reason to challenge her. It also bears mention in
passing that the court formally instructed the jury on the law during the penalty
hearing and it supplied the deliberating jurors with a written copy of the instructions.
Thus, it is even less likely that Juror No. 3 was confused in the slightest about the
law when she was deliberating. And, again, the court sees no reason to suspect that
Juror No. 3 harbored unspoken bias against Zebroski.
Finally on the challenge to jury selection, Zebroski is correct that the
court placed great weight on the jury’s recommendation and a different
recommendation might have justified a different outcome.
overemphasizes the mathematics. The court also saw the sentencing case as it was
presented to the jury. The jury vote, whether it had been 10-2 or 8-4, instead of 9-3,
reflected a broad consensus that the strong mitigators were outweighed by even
stronger aggravators. Assuming that Zebroski’s claims were not procedurally barred,
he has failed to meet either of Strickland’s tests.
C. Delaware’s death penalty statute and Apprendi v. New Jersey
Next, Zebroski challenges Delaware’s death penalty statute on
constitutional grounds. Zebroski claims:
Delaware’s statutory scheme for the imposition of the
death penalty following a conviction of first degree
murder violates the due process clause of the United
States Constitution as interpreted by the United States
Supreme Court in Apprendi v. New Jersey.24
Assuming that Apprendi applies retroactively, a questionable assumption, Zebroski’s
constitutional claim is before the court properly. Nevertheless, Apprendi is
530 U.S. 466 (2000).
inapplicable. Zebroski attempts to bring this case under Apprendi by inappropriately
analogizing Delaware’s death penalty statute to the New Jersey hate crime statute
found unconstitutional by the United States Supreme Court.
In Apprendi, the defendant pleaded guilty to several crimes, including
two counts of second-degree possession of a firearm for an unlawful purpose. New
Jersey’s law provides a maximum sentence of 5-10 years for a “second-degree”
possession of a firearm for an unlawful purpose offense.25 The State reserved the
right to ask the court to impose a “higher ‘enhanced’ sentence” on one of the two
counts “on the ground that [it] was committed with a biased purpose” as described
in New Jersey’s “hate crime” statute.26 The trial judge found “‘by a preponderance
of the evidence’ that Apprendi’s actions were taken ‘with a purpose to intimidate’
as provided in the statute.”27 The trial judge applied the hate crime enhancement
Id. at 468.
Id. at 469-470.
Id. at 471.
and sentenced Apprendi to a 12-year prison term.28 The New Jersey Supreme Court
The United States Supreme Court granted certiorari and reversed. The
Court found that the sentence enhancement violated due process since it removes a
defendant’s right to have a jury determine guilt as to “every element of the crime
which he is charged, beyond a reasonable doubt.”29 Summarizing prior decisions,
the Court stated:
Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt. With that exception, we endorse the
statement of the rule . . . [that,] “[It] is unconstitutional for
a legislature to remove from the jury the assessment of
facts that increase the prescribed range of penalties to
which a criminal defendant is exposed. It is equally clear
that such facts must be established by proof beyond a
The Court further stated:
The New Jersey statutory scheme . . . allows a jury to
convict a defendant of a second-degree offense based on
its finding beyond a reasonable doubt that he unlawfully
possessed a prohibited weapon; after a subsequent and
separate proceeding, it then allows a judge to impose
punishment identical to that New Jersey provides for
crimes of the first degree . . . Based upon the judge’s
finding, by a preponderance of the evidence, that the
Id. at 476-477 (quoting United States v. Gaudin, 515 U.S. 506, 510
Id. at 489 (quoting Jones v. United States, 526 U.S. 227, 252-253
defendant’s “purpose” for unlawfully possessing the
weapon was “to intimidate” his victim on the basis of a
particular characteristic the victim possessed. In light of
the constitutional rule . . . that practice cannot stand.31
Zebroski essentially claims that because Delaware’s death penalty
statute provides judicial discretion in sentencing, Delaware’s statute is
unconstitutional in the same way as New Jersey’s hate crime statute. Zebroski
Likewise, the Delaware death penalty statute violates due
process because the Delaware legislature gives the final
say as to the existence of a statutory aggravating
circumstance, and relegates the jury to an advisory role.
Zebroski concludes that the “validity . . . of death penalty statutes like Delaware’s,
in light of Apprendi, is very much an open question.”
Id. at 491.
Zebroski’s reliance on Apprendi is misplaced. Delaware’s death
penalty statute provides a penalty hearing where the jury makes a sentencing
recommendation. Further, the statute provides for a maximum sentence of life
imprisonment or death.32 The statute does not, in any way, provide for any “higher
enhancement” of the maximum statutory penalty, at the judge’s discretion.
Moreover, Apprendi, itself, expressly addresses its relevance to capital sentencing.
Apprendi specifically states:
11 Del. C. § 636(b); 11 Del. C. § 4209(a).
This Court has previously considered and rejected the
argument that the principles guiding our decision today
render invalid state capital sentencing schemes requiring
judges, after a jury verdict holding a defendant guilty of
a capital crime, to find specific aggravating factors before
imposing a sentence of death.33
Here, the court did not exceed the maximum term statutorily prescribed
for the offense. For first degree murder, the statutory penalties are death or life
imprisonment without parole.34 The court considered the jury’s recommendation and
the record selecting between the statutorily acceptable alternative sentences.
Zebroski has failed to demonstrate that Delaware’s death penalty statute violates his
due process rights under the United States Constitution. He offers no evidence or
examples to substantiate his claim. Apprendi simply does not apply.
D. Appellate Counsel’s Failure to Raise Residual or Lingering Doubt
Zebroski claims that appellate counsel’s “failure competently to
conduct legal research before rejecting the argument of ‘lingering doubt’ on appeal”
Id. at 496 (citing Walton v. Arizona, 497 U.S. 639, 647-649 (1990)).
See also Almendarez-Torres v. United States, 523 U.S. 224 (1998).
11 Del. C. § 636(b); 11 Del. C. § 4209(a).
and counsel’s failure to raise and preserve the issue prejudiced Zebroski and
hindered the case’s outcome.
No Delaware case specifically addresses so-called “lingering” or
“residual doubt.” In Franklin v. Lynaugh,35 the United States Supreme Court,
however, has spoken definitively. Franklin states that defendants have no “right to
demand jury consideration of ‘residual doubts’ in the sentencing phase.”36 The
Court states that its decisions:
in no way mandate reconsideration by capital juries, in
the sentencing phase, of their “residual doubts” over a
defendant’s guilt. . . . This Court’s prior decisions, as we
understand them, fail to recognize a constitutional right to
have such doubts considered as a mitigating factor.37
Instead, the decision to pursue a residual doubt argument is a strategy issue.38
At trial, the court decided not to include a jury instruction regarding
residual doubt. Furthermore, the court would not allow counsel to argue residual
doubt. During allocution, however, Zebroski argued residual doubt, without court
487 U.S. 164 (1988).
Id. at 173.
Id. at 174.
See Felker v. Thomas, 11th Cir., 52 F.3d 907, 912 (1995), cert. denied, 516 U.S. 1133
In his affidavit, appellate counsel states that he considered and rejected
presenting a residual doubt theory. Instead, appellate counsel chose to pursue six
other issues. Zebroski’s assertion that appellate counsel failed “competently to
conduct legal research before rejecting . . . ‘lingering doubt’” is untrue.
Based on appellate counsel’s affidavit, the court agrees with the State
that Zebroski’s appellate counsel, “understood the issue and rejected it on direct
appeal for strategic reasons.” Moreover, it is a well-settled precept that it is an
attorney’s purview to make strategic decisions:
See generally Shelton v. State, Del. Supr., 744 A.2d 465, 496-497(1999), cert. denied,
Shelton v. Delaware, 530 U.S. 1218 (2000).
Although a defense attorney has a duty to advance all
colorable claims and defenses, the canons of professional
ethics impose limits on permissible advocacy. It is the
obligation of any lawyer -- whether privately retained or
publicly appointed -- not to clog the courts with frivolous
motions or appeals.40
Applying Strickland to appellate counsel’s effectiveness requires
discretion on this court’s part. This court hardly is the final arbiter of what is
expected of appellate counsel and whether prejudice has been established.
Nevertheless, on the record presented, this court finds that appellate counsel was not
obligated to raise residual doubt on appeal and if appellate counsel had raised the
argument, it would have been unavailing.
In closing on the point, had trial counsel been allowed to present and
belabor residual doubt for the jury, the court would have taken that into account as
it made the final sentencing decision. Just as over emotionalism and excessive
sentimentality could have undercut the jury’s recommendation, if trial counsel had
injected residual doubt into the penalty hearing record, that too would have
Polk County v. Dodson, 454 U.S. 312, 323 (1981).
undermined the jury’s recommendation.
The court agrees with the State that Zebroski has “failed to establish a
performance deficiency” so that appellate counsel’s “representation was not
professionally reasonable.” Zebroski does not demonstrate that appellate counsel’s
actions fell below an objective standard of reasonableness. Nor does he demonstrate
that but for appellate counsel’s error, the appeal results would have been different.
In the final analysis, the court finds that trial counsel presented a fair
case to a fair jury. While different trial counsel might have presented the case
differently in some ways and a different jury might have made a slightly different
recommendation, the case’s presentation was as expected. The jury’s
recommendation, sadly, was in line with the evidence, even considering trial
counsel’s efforts and his divinely inspired closing exhortation to “choose life.”41
Deuteronomy 30:19 (King James).
For the foregoing reasons, Defendant’s Rule 61 Motion for
Postconviction Relief is DENIED.
IT IS SO ORDERED.
Kevin J. O’Connell, Esquire
Jerome Capone, Esquire
Loren Meyers, Deputy Attorney General
James Apostolico, Deputy Attorney General