State of Delaware v. Manley. State of Delaware v. Stevenson.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE v. MICHAEL MANLEY Defendant and STATE OF DELAWARE v. DAVID STEVENSON Defendant ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CRIMINAL ACTION NUMBERS IN-95-11-1323 thru IN-95-11-1325 & IN-95-12-0684 thru IN-95-12-0685 ID No. 9511007022 CRIMINAL ACTION NUMBERS IN-95-11-1047 thru IN-95-11-1049 & IN-95-12-0687 thru IN-95-12-0689 ID No. 9511006992 Submitted: September 2, 2004 Decided: October 18, 2004 MEMORANDUM OPINION Upon Motion of Defendants Manley and Stevenson for Recusal - DENIED HERLIHY, Judge Defendants Michael Manley and David Stevenson have jointly moved to have this judge recuse himself from further participation in this case. Citing several sentences in this Court s earlier decision, the defendants argue that this judge s impartiality might be reasonably questioned. The decision in question denied the defendants motions for postconviction relief and their motion to bar a new penalty hearing. As a result of the unique history of this case, par t of which involved the removal of the first judge involved in this case, this judge carefully weighed the language utilized in his earlier decision. This judge has re-examined that opinion and the sentences cited by the defendants. That re-examination satisfies this judge that, employing any test applicable in this situation, there is no basis for recusal. The defendants motions are DENIED. Procedural History On November 12, 1996, defendants were found guilty of the November 13, 1995, first degree murder of Kristopher Heath ( Heath ). After a penalty hearing, the jury determined that four statutory aggravating circumstances existed with regar d to the defendants. The jury also found that, as to Manley, the aggravating factors outweighed the mitigation factors by a vote of seven to five. As for Stevenson, the jur y found that the mitigating factors were outweighed by the aggravating circumstances by a vote of eight to four. Upon consideration of these jury s sentencing recommendations, the originally assigned trial judge sentenced Manley and Stevenson to death by lethal injection. 1 1 State v. Manley and Stevenson, 1997 WL 27094 (Del. Super.). 1 The defendants, thereafter, filed a direct appeal which was consolidated with their automatic appeals. The Supreme Court affirmed the guilty verdicts and the imposition of the death penalty for both Manley and Stevenson. 2 Subsequent to that affirmance, Stevenson moved to recuse the originally assigned trial judge. That judge denied that motion on January 8, 1999. 3 Manley and Stevenson both then presented motions for postconviction relief and an evidentiary hearing. The original judge denied Stevenson s motions on December 21, 1999. 4 Manley s motions were denied on April 27, 2000. 5 Both appealed to the Supreme Court seeking r eview of the Superior Court s rejection of their claims of ineffective assistance of counsel. In addition, Stevenson petitioned the Supreme Court to r eview the trial judge s refusal to recuse himself from consideration of the postconviction r elief motions. His claim of alleged bias or appearance of impropriety stemmed fr om that judge s participation in a suppression hearing involving Heath. 6 On remand order of the Supreme Court, the trial judge rendered supplemental factual determinations pertaining to Stevenson v. State. 7 2 Stevenson v. State, 709 A.2d 619 (Del. 1998) and Manley v. State, 709 A.2d 643, (Del. 3 State v. Stevenson, 1999 WL 167779 (Del. Super.). 4 State v. Stevenson, 1999 NL 1568333 (Del. Super.). 5 State v. Manley, 2000 WL 703812 (Del. Super.). 1998). 6 Stevenson had been arrested for fraudulent use of a credit card at Macy s. Heath was a security office at the store. Heath testified at a suppression hearing prompted by Stevenson s motion to suppress. The judge at the murder tr ial presided over the suppr ession hearing. 7 2000 WL 33726918 (Del. Super.). 2 After getting the case back, the Supreme Court determined that there was an appearance of impropriety in the original trial judge s involvement in this case. First, that judge had presided over the suppression hearing at which Heath had testified. Second, that judge had volunteered to be assigned to preside over the murder tr ial involving these defendants. The Supreme Court took particular note that the role of a trial judge in Delaware s capital punishment system is unique: while the jury recommends, the judge makes the ultimate sentencing decision. 8 That role received special attention in this case when the Supreme Court took particular note of the narrow margins of the jury s vote recommending the death penalty for these defendants. The Supreme Court r eversed the original trial judge s decision denying Stevenson s motions to recuse and his motion for postconviction relief. The Court r emanded both defendants appeals. The remand was to (1) have a new judge assigned, (2) consider both defendants motions for post-conviction relief, (3) allow the defendants to amend those motions, if desired and (4) conduct an evidentiary hearing, if needed, and (5) conduct a new penalty hearing. 9 This judge, upon remand, was assigned to undertake these tasks. One threshold issue involved whether Stevenson s appellate counsel could continue to represent him in the renewed proceedings in this Court. The reasons, explained in detail in this judge s prior 8 Stevenson v. State, 782 A.2d 249, 260 (Del. 2001). 9 782 A.2d at 261. 3 ruling and irrelevant to the r ecusal motions, revolved around the question of the applicability of Chance v. State10 to the facts of this case. His counsel who had handled the prior appellate procedures had not raised the Chance issue in the Supreme Court. During an early hearing before this judge, this judge sua sponte informed Stevenson that, as long as he was represented by that counsel, he would forever be barred fr om raising the Chance issue in these post-conviction proceedings. Stevenson, thereafter, requested new counsel and such counsel were appointed. While additional matters were being sor ted out in connection with the motions for post-conviction relief, the United States Supreme Court decided Ring v. Arizona. 11 Based on the issues spawned by Ring and its possible affect on Delaware s capital sentencing scheme, Manley moved to preclude the holding of a new penalty hearing. Obviously, since Ring was decided subsequent to the remand in this case which included holding a new penalty hearing, this judge had to address those issues and determine whether there could be a new penalty hearing. Further , the legislature, prompted by Ring, amended the capital punishment statute in 2002 regarding the jury s role in the sentencing phase. The nature of the defendants post-conviction claims caused the Court to hold evidentiary hearings on their motions. And all sides briefed the applicability, if any, of Ring to a new penalty hearing and the role of the 2002 amendment. 10 685 A.2d 351 (Del. 1996). 11 536 U.S. 584, 122 S. Ct. 2428, 153 L.Ed.2d 556 (2002). 4 The Court in a 91 page opinion, denied both defendants motions for post-conviction relief. The Court also decided the Ring issues declaring a new penalty could be held, as those issues had necessarily injected themselves into the remand. 12 Both defendants appealed. The Supreme Court affirmed all aspects of this Court s rulings. 13 Following the affirmance, counsel and the Court established the date for a new penalty hearing. The date on which jury selection will start is February 1, 2005. Subsequently, the defendants filed their recusal motion. Defendants Claims The defendants premise their r ecusal motions on four discrete por tions from this judge s opinion denying their motions for post conviction relief and holding the penalty hearing would proceed, citing these passages: 1. In fact, the Swan Court distinguished that case from Chance by noting that there was no credible argument, as in Chance, that Warren s death was an unintended consequence of either Swan s or (codefendant) Norcross actions. The same can be said about the evidence in this case. 2. The evidence conclusively showed a planned and intentional killing in which two persons, these defendants, participated. Chance, therefore, is inapplicable to the facts of this case. 3. The evidence was overwhelming. 12 State v. Manley, Supra, State v. Stevenson, Del.Super., Cr. A. Nos. IN95-11-1047-1049, IN95-12-0687-0689, Herlihy, J. (October 2, 2003). 13 Stevenson v. State, Del. Supr., No. 502, 2003, Holland, Jr. (April 7, 2004)(ORDER); Manley v. State, Del.Supr., No. 519, Holland, J. (April 7, 2004)(ORDER). 5 4. There is a key element of the record in this case which both defendants ignore or have chosen not to address. Whatever infirmities the Supreme Court found with the original trial judge s penalty decision, the fact remains that before his sentencing decision was made, the unanimously found beyond a reasonable doubt that four statutory aggravating factors existed. 14 The defendants contend these statements, when viewed in light of the fact-finding this judge would have to make in the new penalty hearing, establish an objective impropriety that means this judge should not preside over that hearing. Defendants argue that the Due Process Clause of the Fourteenth Amendment incorpor ates their right to judicial proceedings presided over by a neutral and detached judge. They continue that the Delaware Code of Judicial Conduct implements this constitutional guarantee and that disqualification is required when the impartiality of the Court might be reasonably questioned. Discussion On remand, the newly assigned Judge was directed to address the defendants Rule 61 motions and to preside over a new penalty hearing. There was no suggestion that a single judge would be incapable of doing both. In order to addr ess all the Rule 61 issues these defendants raised, it was necessary to recite and review the factual record established in the first trial and set out in the ear lier decision forming the basis for the recusal motions. 14 Quotations are from this Court s decision but the four points of contention are from the defendants Motion to Recuse (docket #209). 6 As this judge noted, that recitation came from those earlier decisions. 15 There could be no other way to properly weigh the defendants motions than to do so in the light of the existing factual record. The standards governing disqualification require neutrally of the presiding judge as well as the appearance of impartiality. 16 These standards are codified in The Delaware Code of Judicial Conduct ( Code ). The pertinent section of Canon 3 states that: (C) Disqualification. (1) A judge should disqualify himself or herself in a proceeding in which the judge s impartiality might reasonably be questioned, including but not limited to instances where: (a) The judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. ... To succeed in their motion for disqualification, the defendants must be able to show that this Court is biased or has a disqualifying interest. 17 In a disqualification analysis, the Court must make a painstaking examination of the facts. 18 A two-step analysis is to be used when reviewing whether r ecusal is necessary in a given situation. 19 First , the Court 15 State v. Manley, supra., footnote 6. 16 Los V. Los, 595 A. 2d 381, 383 citing Ungar v. Sarafite, 376 U. S. 575, 588, 84 S.Ct. 841, 849, 11 L.Ed.2d 951-52 (1988). 17 Bowen v. State, 1995 WL 496932 at *1 (Del. 1995). 18 State v. Outten, 1992 WL 390660 (Del. Super.), citing Duncan v. Merrill Lynch, Pierce, Fenner, and Smith, 646 F. 2d 1020, 1029 (5th Cir. 1981). 19 Jackson v. State, 684 A.2d 745, 752-53 (Del. 1996). 7 must be satisfied, as a matter of subjective belief, it can proceed to hear the cause free of bias or prejudice towards Manley and/or Stevenson. 20 Second, even if the judge believes that he has no bias, the Court must determine whether there is the appearance of bias sufficient to cause doubt as to the judge s impartiality. A The Court will first turn its attention to whether this judge can proceed to preside over the penalty hearing free of bias or prejudice towards Manley and/or Stevenson. As stated in the October 2, 2003, memorandum opinion, this judge did not volunteer to take this case nor did he solicit to be assigned the case. Prior to this appointment to handle this case after remand, this judge did not have any contact with the trial, the penalty hearing, the prior Rule 61 opinion or any matter involving either Stevenson, or Manley, or Heath, the victim of the crime. The defendants motion for recusal does not alter this judge s feeling that he is disinterested and impartial. This judge finds that, as a matter of subjective belief, he can proceed to preside at the penalty hearing free of bias and prejudice towards Manley and Stevenson. 21 B The Court will now turn its attention to whether there is the appear ance of this judge s personal bias sufficient to cause doubt as to the judge s impartiality. Defendants 20 Los v. Los, 595 A.2d at 384-85 21 Id. 8 claim that this judge created a scenario where he cannot be objectively viewed as a neutral and detached fact finder at the upcoming penalty hearing because of portions of language in its opinion dated October 2, 2003. As noted, the defendants have pointed to four instances in the opinion where they believe the words of this judge establish an objective appearance of impropriety. To be disqualified, the alleged bias or prejudice of the judge must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. 22 All evidentiary facts now known to this judge are taken from previous Supreme Court and Superior Court decisions in this case, the transcripts of the fir st trial, the pre-hearing conferences held after the remand, the separate Rule 61 evidentiary hearings, and the amended post-conviction motions. 23 In short, all evidence known to this judge is a matter of record. That record, as this Court s October 2003 opinion demonstrates, contains evidence both favorable and unfavorable to the defendants. That is the record to which this judge referr ed and upon which he had to necessarily rely in his 91 page r uling. 22 United States v. Grinnell Corp. , 684 US 563, 583, 86 S.Ct. 1968, 16 L.Ed.2d 778 (1966), citing Berger v. United States, 255 Us 22, 31, 41 S.Ct. 230, 65 L.Ed. 481, 484 (1921). 23 Any facts mentioned in this opinion are taken from State v. Manley and Stevenson, 1997 WL 27094, Manley v. State, 709 A.2d 643, and Stevenson v. State, 709 A.2d 619. 9 Previous contact between the judge and a party or adverse rulings in the same proceeding does not require automatic disqualification. 24 There is no extrajudicial source for this judge s knowledge. In addition, this judge s knowledge arises only from the sources indicated. 25 Thus, this judge has no knowledge of any facts from any extrajudicial source. Whatever disputed facts that exist are in the record of the prior trial including inconsistencies of witnesses testifying at that trial. The evidentiary hearings also uncovered other inconsistencies. The Court will now consider whether the recor d, viewed objectively, reasonably supports the defendants claims of the appearance of prejudice or bias. The recusal inquiry becomes whether, when considered objectively, the four cited instances in the October 2, 2003 opinion, either individually or collectively, display a deep-seated antagonism towards defendants that would make fair judgment impossible. 26 In order to succeed with this claim, defendants must how that this judge has a personal bias against the defendants, not a judicial bias. 27 24 Steigler v. State, 277 A.2d 662, 668 (Del.Super. 1971). 25 United States v. Grinnell Corp. , 384 U.S. at 583, 86 S.Ct. At 1710, 16 L.Ed.2d 778. 26 Liteky v. United State, 510 US 540, 541 114 S. Ct. 1147, 1150, 127 L.Ed.2d 474 (1994). 27 Dickens v. Costello, 2004 WL 1731136 at *2 (Del. Super). 10 Adverse rulings, in and of themselves, will seldom, if ever, constitute a valid per se basis for disqualification on the ground of bias. 28 The mere fact that a judge rules against a party on a motion is not sufficient to meet the objective standard for r ecusal. 29 The bias envisioned by Canon 3(C)(1)(a) is not created merely because the judge has made adverse rulings dur ing the course of a proceeding. 30 Under Canon 3(C)(1), a judge should disqualify himself when that judge s impartiality might reasonably be questioned. The Court will now consider each of the four instances mentioned by defendants to see fi the judge s impartiality toward the defendants might reasonable be questioned. The first two of the four cited instances of bias which the defendants claim show this judge cannot be objectively viewed as neutral or detached relate to this judges s ruling on the Chance31 issue raised in their motions for post-conviction relief. That issue and the role in this case is set out over 18 pages of the 91 in this judge s October 2003 ruling. It is a complex and important issue and was one deserving of an extensive discussion. The whole issue of Chance and its applicability required a review and discussion of the record established at the first trial. The issue could not have been decided in a vacuum devoid of that record. 28 In re Wittrock, 649 A.2d 1053, 1054, citing Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). 29 Baxter v. State, 2002 WL 27435 (Del. ), at *1. 30 Weber v. State, 547 A.2d 948, 952 (Del. 1988). 31 685 A.2d 351 (Del. 1996). 11 After 13 pages of the discussion of the Chance issue, this judge said the following (the alleged offending language is underlined): This review of precedents reveals a certain lack of clarity. Demby is the case most helpful to these defendants claims that their appellate counsel should have raised Chance on direct appeal. But in Demby, unlike here, there was scant, if any, evidence the two people - Demby and another - had conspired to kill the victim. They were not even convicted of conspiracy to commit intentional murder, unlike this case. While the literal interpretation of the Demby Court s language dictates that a Section 274 instruction be given whenever the State seeks to impose accomplice liability for an offense that contains lesser-included degrees, such as homicide, the Demby Court recognized, at least implicitly, that there are situations where such a charge would be improper. In fact, the Swan Court distinguished that case from Chance by noting that there was no credible argument, as in Chance, that Warren s death was an unintended consequence of either Swan s or (co-defendant) Norcross actions. The same can be said about the evidence in this case. Based on that language in Swan, it appears that the Supreme Cour t senses the potential mischief in an across-the-board use of a Chance instruction. Rather, the Supreme Court again recognizes the concern expressed in Liu that, under certain circumstances, a Chance instruction may result in inconsistent verdicts for defendants allegedly involved in the same crime. This result is especially true where there is compelling evidence that two people jointly planned and carried out an intentional murder. And that is what the evidence in this case showed. Stevenson was the defendant to be tried for theft. He was not, however, the person who came to Heath s apartment the night before the murder. On the morning of the shooting, a tenant observed two people slouched down in a car parked near or next to Heath. Heath was shot from behind five times on the morning he was heading to court to testify against Stevenson. The physical description of the shooter more closely matches Manley. Similar ammunition to that used to kill Heath was found in a jacket in Stevenson s car. That jacket closely matched a type of jacket Manley owned. A paper with the name, address and telephone number of another witness against Stevenson was 12 found in a police car in which Stevenson had been transported. Both were seen together hours before the murder, and within minutes after it, and when approached by the police, both ran. The evidence conclusively showed a planned and intentional killing in which two persons, these defendants, participated. Chance, therefore, is inapplicable to the facts of this case. Moreover, Chance is clear that the instruction included in its Appendix I is a sample based on the evidence presented in that case. In the footnote directing the reader to the Appendix, the Chance Court describes the instruction as follows: One possible form of a Section 274 instruction is set forth in Appendix I. The instruction is intended to illustrate the facts of Chance s case, to wit: the trial of a single defendant, no charge of felony murder, no weapon, and an assault resulting in a homicide where the homicide might be either the intended or a consequential offense. In other words, the fact-driven sample instruction is not a categorical imperative for every case involving accomplice liability. As discussed above, the facts of Chance are significantly different fr om those in the case at bar. Although the jury instruction of defendants Manley and Stevenson was not a paraphrase of the sample Chance instruction, it explicitly provided that, in order to find either defendant guilty of murder in the first degree as an accomplice, the jury was requir ed to find that the accomplice intended to further or assist in the commission of first degree mur der. This instruction was consistent with the evidence, which did not support a basis for a finding of either reckless or criminally negligent mental states, which was the focal point of the Chance decision. Finally, the Court notes that, in the Chance Court s comparison of § 274 with the parallel provision of the Model Penal Code, the Court focused on a hypothetical where the defendants agreed to participate in an unlawful assault and the result was a homicide. 32 In the case at bar, no evidence was offered by the State or either defendant to show that the killing was a consequential crime. 33 32 33 Chance, 685 A.2d at 356-57. State v. Manley, Supra. at 43-5. F ootnotes omitted. 13 First, the alleged offending language must be taken in the context of the rest of the language quoted above. Second, even that language must be taken in the context of the 18 pages of discussion of the Chance issue. Third, that language must be viewed in the context of the record and all 91 pages of this judge s decision. Fourth, the Chance issue is often very intensely fact driven and it was here. Those same facts formed the basis of the jury s guilty verdicts and were cited by the Supreme Court in affirming the original convictions. The subsequent proceedings did little or nothing to undermine the facts necessary to this judge s recent ruling. Finally, this judge s ruling on the Chance issue and the factual basis for it have been affirmed. The third area to which the defendants point as showing lack of neutrality or detachment is where this judge rejected another of their Rule 61 claims. The discussion of that particular claim cover ed nearly 14 pages in this judge s earlier opinion. Again it is instructive to show the context of the one allegedly offending sentence forming the basis of this claim (offending language underlined): There is little argum ent that som e of wha t these witnesses would have said on the stand might ha ve fur thered the trial strategy. But Wing puts a person with white hands behind the wheel of Stevenson s car and that physical description matches his hands. Schwed a s testimony could easily have turned into real trouble by putting Stevenson in the passenger seat which is where the likely shooter came from and went to. And both saw a car closely matching the color of Stevenson s car. Mossinger did not see that much and her description of the car she saw could have been that of a color matching or similar to Stevenson s car. 14 Of the four uncalled witnesses, Marlene F armer Ijames, might have been the most helpful. She saw a white male near H eath s body an d that this person got into the driver s side of a dark colored vehicle. But what she saw wa s a mixed bag to Stevenson s case, even though she told the police the newspaper photos of Stevenson and Manley were not of the person she saw. The car she saw was dark and the person whom she saw, who may have been the shooter and whom she describes as white, got into the driver s side. These wer e, and are, potential trouble areas for Stevenson. The fact remains, however, that Stevenson s defense counsel did not speak to these witnesses to further explore whether they might have been helpful or harmful. Trial counsel s strategy was admittedly dictated by a very strong State case in the guilt phase. W hen evaluating counsel s conduct, the Co urt m ust indulge in a strong presu mption th at counsel s conduct was professionally reasonable. Trial counsel s choice of strategies here was made without consulting with these four potential witnesses; four witnesses who testified at an evidentiary hearing over six years after the trial. It is unclear why they would come fo rwa rd no w, or be r esponsive now to su bpoenas , but not in 1996. Ther e is an appe aranc e of insufficie nt follow-up in 1996. That is where the pr oblem lies. The recent United State Supreme Cour t case of Wiggins v. Smith makes it clear that counsel, either on their own or by pressing their investigator (s), should have done m ore. It cannot be said their strategy decision was made after a thorough investigation, even if they had copies of what the four witnesses told the police. They had acce ss to their witness names, but in the end, they wer e not interviewed by the defense. T here is no indication that any of these witnesses were unavailab le at or fo r tria l, albeit the record is that none of these four responded to phone calls or business cards. N one were asked at the evidentiary hearing about those con tacts or if th ey wou ld have not responded to a trial subpoena. Desp ite that deficiency, Stevenson s claim must still fail. First, even though counsel s strategic choice was made w ith a less than a dequate investigation, it remains an appropriate one. The evidence was overwhelming. It was his car. He had a motive, he was caught within less than an hour, he fled at the first sight of the police, he had the Macy s co- 15 investigator s name and address on him, and so forth. In a case where the trial counsel confront a strong State s case in a capital setting, the decision to focus on s aving the c lient s life throu gh the m itigating evid ence in the penalty phase and to avoid a c redibility c lash betw een the gu ilt and pena lty phases, is neither novel nor unreasonable. That does not mean counsel here gave up on the guilt phase but only that their strategy was premised on the facts in the guilt phase, concer n about ha ving cr edibility in the penalty phase and working to get a recommendation for life. In sum, w hile the investigation was deficient, and the choice of a strategy flawed to a degree as a result, that choice, nonetheless, rem ains reaso nable. Tr ial counsel w ere no t deficient. Nor has Stevens on met h is burd en of show ing that if any or all four witnesses testified, there is a probability that the outcome of the guilt phase would have been different. The evidence against Stevenson was overwhelming. Ther e wer e flaws in it, of course, and these witnesses might have added to those flaws. But several or all might have added to the streng th of the State s case, and may never have been called if interviewed by the defense as their evidentiary hearing testimony dem onstrates. 34 The use of the word overwhelming by this Court derived from Stevenson s trial co-counsel s words as well as the facts determined at trial. Stevenson s other trial cocounsel stated: my recollection was that the State s case was pretty overwhelming in this particular case.. .. 35 The Court later remarked again: The evidence was overwhelming. 36 The Court is still talking about Stevenson s trial counsel. A reasonable person, knowing all the relevant facts and the full record, would not harbor any doubts 34 State v. Manley, Supra. at 71-3. F ootnotes omitted. 35 Id at 70. 36 Id. at 73. 16 about this judge s impartiality. One of the two prongs of whether there had been ineffective assistance of counsel is, as noted in the earlier decision, whether the defendants can show prejudice. Quite simply, could they show that but for any err ors there was a strong probability the original tr ial s outcome would have been different? To properly weigh and determine that issue this judge had to (1) set out the facts in the earlier record and (2) view them in light of the Rule 61 claims and the record from the evidentiary hearings. In effect, the defendants are criticizing not this judge s partiality, as they view it, but the determination, affirmed on appeal, that whatever counsel err or occurr ed (if any) did not cause prejudice. The final and fourth sentence about which the defendants raise the issue of impartiality is contained in this Court s discussion about the issues surrounding whether a new penalty hearing could be held. Again, to provide appropriate context, it is necessary to quote a few pages from the nearly 17 pages in which the penalty hearing issues were considered (the offending language is underlined): Penalty Hearing The Supreme Court remanded this case in May 2001 for a different judge to consider the post-conviction issues reviewed above. Assuming none of those issues required the award of a new trial, the rem and was for a new penalty hearing. W ith the disposition of the postconviction issues, this opinion would o rdinar ily have ended. How ever, two even ts subsequ ent to the remand have called into question whether a penalty hearing can be held. The first is the United States Supreme Court s opinion in Ring v. Arizona, raising questions about the statutory procedure under which Arizona s penalty hearings occurred. Further, in response to Ring, the Delaware 17 legislature amended that pro cedur e. Because of tho se events, both defendants contend there can be no penalty hearing and that they must be sentenced to life. Manley has expressly mov ed to pr eclude a p enalty hearing. Constitutionality of Delaware Death Penalty in Light of Ring v. Arizona Both Manley and Stevenson maintain that the death penalty statute under which they were originally tried and sentenced, 11 Del. C. § 4209, as enacted in 1991, was unconstitutional for various r easons, including those enunciated in Ring v. Arizona. They further claim they cannot be subjected to a new penalty hearing with, therefor e, the possibility of a death sentence, even under the procedures for such hearings as specified in the 2002 amendment to § 4209. Because the form er statute , accor ding to them , is unconstitutional and the 2002 version inapplicable to them, they assert that the doctrine of severability means they must get life sentences. As Stevenson correctly recognizes, however , the D elaware Supreme Cour t recen tly upheld three death sentences despite challenges to the 1991 version of § 4209 based on Ring. T hus, the practical significance of defendants claim is prim arily to p reser ve their rights to pursue similar arguments in any subsequent proceedings. N evertheless, the Court addresses each of the arguments. To make defendants arguments more clear, it is necessary to review the pertinent portions of the 1991 statute governing their pr ior pen alty hearing and the 2002 amendment to that statute and hearing procedure enacted in response to Ring. The 1991 statute required two questions be presented to the jury. One was whether the evidence showed beyond a reasonable doubt the existence of at least one statutory aggravating factor. The jury s verdict on that question did not have to be unanimous. As a result of Ring and the 20 02 ame ndmen t, th e jury s finding must now be both unanimous and beyond a reasonable doubt in order to render a defendant eligible for the death penalty. Both defendants rely heavily on Ring. In that case, the United States Supreme Court struck down the aspect of the Arizona capital sentencing procedure wher eby the pres iding judge alone, sitting without a jury, had author ity to determ ine the existence of aggra vating facto rs. The C ourt h eld that the statutory enumerated aggravating factors operated as functional 18 equivalents of elements of greater offenses, thereby r equiring them to be found by a jury beyond a r easonable doubt. Concluding that those aggravating factors wer e in fact elem ents of the greater, capital offense, the Court held that the Arizona sentencing scheme violated the d efendant s Sixth Amendment right to a jury tr ial. The sa me r easoning , both defen dants here argue, applies to Dela war e s hybr id s ystem un der the 1991 de ath penalty statute. Ther efore, they conc lude, Delaw are s death pen alty statute in effect at the time of their trial was unconstitutional because the judge, and not the jury, ultimately determined whether statutory aggravating factors existed in order to make them eligible for the death penalty. However, as noted above, the Delaware Suprem e Cou rt re cently addressed several questions regarding the 2002 a mendm ent to Section 4209 in Brice v. State. And he ld that Ring applies only to the narrow ing phase of the sentencing process. The 2002 statute transformed the jury s role, at the narrowing phase, from one that was ad visory under the 1991 s tatute into one that is now determinative as to the threshold requirement of the existence of any statutory aggravating circumstance, thereby cur ing any possible Ring defect in the 1991 scheme. Under the amended statute, the jury must find unanim ously and beyond a reasonable doubt the existence of at least one statutory aggravating circumstance before the sentencing judge may consider the death penalty. The Court also considered and rejected a challenge to the 1991 statute based on Caldwe ll v. Mississipp i, which held that the jury s role in a capital case cannot be minimized. The C ourt co ntinued its an alysis and found that since any error under the 1991 statute does not fit into any of the established structural error categor ies, harm less err or ana lysis is appropriate. Subsequent to both Ring and Brice, the Supr eme C ourt affirmed three capital sentences handed down under the 1991 statute. In affirming each of the defendants sentences, the Supreme Court r elied on Brice for the proposition that a felony murder conviction establishes a statutory aggravator which withstands constitutional scrutiny under Ring. In Zebroski v . State, the Court stated that once a jury finds unanimously and beyond a reaso nable doubt, the existence of at least one statutory aggravating circumstance, the defendant becomes death eligible and Ring s constitutional requirement of jury fact-finding is satisfied. . None of these cases distinguished, for purposes of Ring, the difference between a statutory aggravator found beyond a reasonable doubt at the penalty phase, as here, 19 and one establish ed at the gu ilt phase by a verdic t of guilty on a felony murder char ge. T his Court finds no such distinction. Both Manley and Stevenson argue that if the 1991 statute were unconstitutio nal, the doctr ine of sever ability requir es that a life sentence be imposed, regar dless of the c onstitutionality of the new 2002 de ath penalty statute. For this proposition, they rely on State v. Spence and State v. Dickerson. In light of the Supreme Cour t s decision in Brice, finding no structural error in the 1991 statute, the Court need not address severability. Even if there were constitutional problems with the 1991 scheme, sever ability would be ir relevant. In this case, after finding that the defendants origina l trial judge should have recused himself to avoid the appearance of impropriety, the Supreme Court order ed this Court to conduct a new penalty hearing, stating: We recog nize that the r emedy directe d in this ma tter, a new p enalty hearing, is not the result of evidentiary rulings or errors that occurred during the penalty hearing and that may have affected the jury s recommendation. The capital sentencing procedure mandated by 11 Del. C. § 4209 is a unitary process, however, involving a hearing conducted by the trial judge before a jury, § 4209(b)(2), with the judge imposing sentence after considering the recommendation of the jury, § 4 209(d). Thus, to corr ect any appearance of impropriety that occurred through the personal participation of the trial judge in the sentencing process, we have no alternative but to order a new penalty hearing to be conducted by a different judge who, in turn, will be required to consider, anew, the recommendation of a jury. As this Court reads this language, the Supreme Court nullified the previous penalty phase hearings, including the prior jury r ecommendations, and ord ere d ano ther Super ior Cou rt ju dge to cond uct ev ery thing anew . By the express terms of the 2002 amend ment, it was intend ed to apply to all defendan ts tried, r e-tried, sentenced or re-sentenced after its effective date. And if that language were not clear enough to include these defendants, the amendment continues, [t]his Act sha ll not apply to any defendant sentenced prior to its effective date unless a new tria l or new sentencing hearin g is ordered in the case. Accor dingly, insofar as the defendants new penalty 20 hearings are to be conducted under the 2002 amendment, their Ring-based challenges to the 1991 statute ar e moot. There is a key element of the re cord in this case w hich both d efendants ignore or have chosen not to addr ess. Whatever infirmities the Supreme Court found with the original trial judge s penalty decision, the fact remains that before his sentencing decision was made, the jury unanimously found beyond a reaso nable dou bt that four statutory aggra vating facto rs existe d. The trial judge instructed the jury about what the factors were and the applicable bur den of pro of: 1. The murder w as committed against a person who was a w itness to a crime and who was killed for the purpose of preventing the witness appearance and testimony in a criminal proceeding involving the crime. See 11 Del. C. § 4209(e)(1)g. 2. Defendant Stevenson caused or directe d another to comm it murder. Defendant Manley committed murder as an agent of another person. See 11 Del. C. § 4209(e)(1)m. 3. At the time of the killing, the victim had provided a police agency with information concerning criminal activity, and the killing was in retaliation for the victim s activities in providing information concerning criminal activity to a police agency. See 11 Del. C. § 4209(e )(1)t. 4. The murder was premeditated and the result of substantial planning. See 11 Del. C. § 4209(e)(1)u. In instructing the jury on those four factors, the judge also instructed the jury in p ertinen t part: Delaware law specifies certain statutory aggravating circumstances , at least one of which must be found to exist beyond a reasonable doubt in order to render death an available pu nishmen t. The law also p erm its you to con sider any other aggravating factors not defined to be statutory aggravating circumstances which may exist in a particular case. The law does not specify mitigating circumstances, but the defendants may offer evidence relating to any 21 mitigating circum stances w hich they c ontend ex ist in a par ticular case. If you find beyond a reasonable doubt that any one of the four of these statutory aggra vating cir cumstan ces exist in this case and have been prov en by the Sta te beyond a reaso nable dou bt, then you s hould answer in the affirmative the question regarding that alleged statutory aggravating circumstance as it pertains to each defendant. If you have a reasonable doubt as to the existence of one, two, three or four of the statutory aggravating circumstances, then you must answer in the negative the question regarding that alleged statutory aggravating circum stance as it pe rtains to e ach defen dant. The judge, of course, instructed the jury, in accordance with the 1991 law, to cast affirmative and negative votes on each of these four statutory aggravating factors. Even so, the jury unanimously found beyond a reaso nable doubt that each factor existed. While none of these statutory factors was imbedded in the indictment (such as felony murder, or killing two or more people), the unanimous finding beyond a reasonable doubt of these four factors satisfies Ring. 37 The allegedly offending sentence was simply a matter of stating what the defendants briefing had not covered. Their arguments seeking to bar a new penalty hearing encompassed other gr ounds. A mythical objective observer, knowing and understanding all the relevant facts, the record and the context of the alleged offending sentences, would not believe that this judge has a bias or prejudice against the defendants. This judge was appointed by the President Judge to preside over, as the Supreme Court or dered, the presentation of the defendants revised post-conviction relief motions and the new penalty hearing: While 37 State v. Manley, Supra. At 74-81. F ootnotes omitted. 22 a new penalty hearing is required in any event, the successor judge should first consider the reasserted post-conviction petitions. ... 38 This Court consider ed and rejected the revised post-conviction motions. That decision was upheld by the Supreme Court: The Court has concluded that the judgment of the Superior Court should be affirmed on the basis of its well-reasoned Memorandum Opinion dated October 2, 2003. 39 This judge believes that a reasonable person, knowing all the relevant facts, would not harbor any doubts about this judge s impartiality. In the October 2003 opinion this judge noted that he was relying upon, for his own statement of facts, the prior judge s sentencing decision and the Supreme Court s original affirmance. That was self-evident because this judge only knew what was a matter of record. Nor was this statement made idly. This judge had to be free of bias and remain free of bias when considering the myriad of important issues in this capital murder case. One of the facts leading this judge s involvement was the Supreme Court s determination that there was an appearance of impropriety by the original trial judge. Any subsequent appearance was and is especially to be avoided. Further , the remand was to conduct a new penalty hearing, assuming, of course, that there was nothing in the defendants Rule 61 motions warranting a new tr ial. Essentially, the defendants current claims revolve around statements this judge 38 Stevenson v. State, 782 A.2d at 261. 39 Stevenson v. State, 2004 WL 771657 at *1 and Manley v. State, 2004 WL 771659 at *1. 23 made about and on the record fr om the first trial. There will now be a new penalty hearing. The defendants guilt has been found by a jury and their convictions affirmed. There will be a new jury to hear the evidence in the penalty hearing. While it will necessarily have to know the defendants have already been convicted, it will still have to hear the nature and circumstances of the murder and the r espective roles of each of the defendants. All of this is necessary for that jur y to make the appropriate sentencing recommendations and this judge the appropriate sentencing decisions. That decision will be based on the new record. This judge cannot, of course, predict what those recommendations might be. But they will be based on the evidence presented to that new jury. As that identical evidence is presented to this judge, this judge will base his sentences on the facts presented in the new hearing and the new jury s recommendations. Neither the jury nor the judge will make any appropriate findings or recommendations based on the evidence in the earlier proceedings. The exception is, of course, the fact of the convictions, without more. Conclusion For the aforementioned reasons, the defendants joint motion for recusal is DENIED. J. 24
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