State of Delaware v. Wright.

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE Plaintiff, v. JERMAINE WRIGHT, Defendant. ) ) ) ) ) ) ) ) ) ID No. 91004136DI Submitted: July 20, 2011 Decided: January 3, 2012 SUPPLEMENTAL OPINION Gregory E. Smith, Esquire, James T. Wakley, Esquire and Danielle J. Brennan, Esquire, Department of Justice, Wilmington, Delaware Attorneys for The State. Herbert W. Mondros, Esquire, Margolis Edelstein, Wilmington, Delaware Attorney for Defendant. James Moreno, Esquire and Tracy Ulstad, Esquire, Philadelphia, Pennsylvania Attorneys for the Defendant. Table of Contents INTRODUCTION ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦...1 A. FACTS ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦.2 1. The Crime...........................................................................2 2. The Investigation ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦.6 3. Wright s Alibi ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦..12 4. Wright co-perpetrator: Lorinzo Dixon ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦..13 B. PROCEDURAL HISTORY ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦.14 C. THE EVIDENCE AT THE RULE 61 EVIDENTIARY HEARING ¦ ¦.19 1. Deborah Mash, PhD The effects of heroin on Defendant..19 2. Robert Maslansky, M.D. The effects of heroin and other impairments on Defendant ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦..22 3. Daniel Martell, Ph. D.: Defendant s ability to ¦ ¦ ¦ ¦ ¦ ¦..24 resist suggestion. 4. Solomon Fulero, Ph.D., J.D ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦29 5. Significance of Expert Testimony ¦ ¦.. ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦33 D. DEFENDANT S CLAIMS ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦34 E. RULE 61 PROCEDURAL BAR ANALYSIS ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦..36 1. The actual innocence exception in the Supreme Court ¦ ¦37 ii 2. The history and purpose of Delaware s post conviction procedural bars ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦. ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦39 3. The actual innocence exception does not defeat the purpose of the procedural bars ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦.46 4. An actual innocence exception is embodied in the language of Rule 61(i)(5) ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦48 5. Wright has adduced sufficient evidence to invoke the exception ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦.49 6. Application of the actual innocence exception to this case ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦.53 F. ANALYSIS OF DEFENDANT S CLAIMS ¦ ¦ ¦.. ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦54 1. Defendant s claim that the jury was improperly instructed on the felony murder rule ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦.54 2. Defendant is actually innocent ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦57 3. Defendant s statement was involuntary ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦..63 4. All of Wright s prior post conviction counsel rendered ineffective assistance of counsel ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦..67 5. Counsel was ineffective in Defendant s Second Penalty Hearing ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦69 6. Wright s claim that the jury should have been instructed that the aggravating factors must outweigh the mitigating factors beyond a reasonable doubt ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦..71 7. Defendant s conviction must be vacated because of a Brady Violation ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦73 a. Evidence relating to jailhouse informant Gerald Samuels ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦75 b. Evidence relating to an attempted robbery at Brandywine Village ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦78 iii 8. Defendant s statement was obtained in violation of Miranda v. Arizona because the Miranda warnings were defective ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦. ¦84 a. The purpose of the Miranda warnings ¦ ¦ ¦ ¦ ¦ ¦ ¦.85 b. The administration of Miranda warnings to Wright..86 c. The police were required to re-administer Defendant s Miranda rights prior to his videotaped statement ¦ ¦..91 d. Even if the police were not required to re-administer the warnings, once they did so they could not give misleading warnings ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦94 e. Detective Mayfield s advisement of Defendant s rights did not comport with Miranda ¦ ¦ ¦ ¦ ¦ ¦ ¦. ¦95 9. Defendant s Miranda waiver was not made knowingly or intelligently ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦98 G. CONCLUSION ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦101 iv INTRODUCTION On the night of January 14, 1991, Phillip Seifert was helping his brother by filling in as a clerk at the liquor store appended to the HiWay Inn near Wilmington. It was the last night of his life he was brutally and senselessly murdered during a robbery at the liquor store. Jermaine Wright, Defendant, was convicted of that robbery and murder and sentenced to death. Two decades later he continues to challenge his convictions and sentence in the courts. This case could well serve as a poster child for those who are understandably frustrated at the snail-like pace of death penalty litigation. At the same time, this case underscores the necessity of providing defendants facing the death penalty with a well trained and adequately funded defense team. The Federal Community Defender Office for the Eastern District of Pennsylvania which now represents Wright has adduced extensive and convincing expert testimony which, save for cross-examination, was uncontested by the State. Defendant has presented nine distinct arguments. Certain of them are procedurally barred, one was abandoned, and some are without merit. There are, however, three meritorious arguments, each of which lead this court to conclude that Defendant s convictions and ensuing death penalty are constitutionally infirm. First, the court finds that the chief investigating police officer did not advise the prosecutors of 1 evidence which may have exculpated Defendant. As a result this information was not produced to Wright s counsel, thus depriving Defendant of due process of law. Second, as the court first raised sua sponte, the Miranda warnings given to Wright prior to his only recorded interrogation not only failed to adequately convey to Defendant his right to counsel, but may have misled him into believing he had a right to appointed counsel only if the state felt he needed one. Because the warnings given to Wright were so defective, his statement to the police should have been excluded from evidence. Third, the court finds that Defendant did not knowingly and intelligently waiver his Miranda rights. Therefore, the resulting statement should have been excluded from evidence. These three constitutional errors are far from harmless and therefore Wright s convictions and death sentence must be vacated. A. FACTS 1. The Crime The HiWay Inn was a quiet tavern where everybody knows everybody, the kind of place where a regular could cash a check. At the time of these events, it had been owned by Lawrence Seifert for about 23 years. Located on Governor Printz Boulevard just outside the Wilmington city limits, it consisted of a bar and an attached package store. 2 Phillip Seifert, the brother of the owner, had previously lost the lower portion of his right leg. He was 66 years old and was mostly retired. 1 On occasion, however, he would help out his brother and work as a clerk in the package store. According to Lawrence Seifert, his brother was the type to resist a robbery attempt. He s just not going to get robbed. That was his attitude. He was just that kind of man. James Mason was scheduled to work the night of January 14, 1991 as the package store clerk, but was unable to do so because he was recovering from eye surgery. Phillip Seifert filled in for him. It would be the last night of his life. January 14 was a slow night in the bar. The barmaid was Debra Milner, and by shortly after nine only one customer, Jack, was there. Around 9:20 p.m. a stranger, an African American, came in. The stranger made no purchases, nor did he speak to anyone. He just stood at the end of the bar for a few minutes looking around. Ms. Milner remembered that he was wearing a red plaid flannel shirt and had an overly round face. After the last customer left the bar, Mr. Seifert came into the bar to talk with Ms. Milner. There was a bell which rings when anyone opens the outside door to the package store, so Mr. Seifert would have known if a customer entered the package store while he was chatting with Ms. Milner. Around 10 p.m., the bell rang and Mr. Seifert went to take care 1 There is some minor discrepancy about Phillip Seifert s age. According to the Chief Deputy Medical Examiner, he was 65 years old. 3 of the customer. About the same time, the phone in the tavern rang; it was Ms. Milner s sister calling. While talking with her sister Ms. Milner heard the bell ring again, indicating to Ms. Milner that the customer had left the package store. Later, as Ms. Milner was hanging up from the call from her sister, she heard the bell to the package store ring yet again. She glanced at the clock in the bar; it was 10:20 p.m. Shortly after hanging up, Ms. Milner heard what she thought was a fire cracker. She walked to the interior door leading to the package store and saw Mr. Seifert with his head on the counter. From her vantage point, she was unable to see the entire package store and did not see anyone else in there. She next heard what was unmistakably a gun shot, and she saw blood begin to pour from Mr. Seifert. Understandably terrified, she ran and hid in a room in the back of the tavern. George Hummel was on the 11 p.m. to 7 a.m. shift as a machinist inspector at Amtrak. He planned to stop by the HiWay Inn where he was known as Amtrak George to cash a check while on his way to work. He approached the HiWay Inn from the southbound lanes of Governor Printz Blvd., which meant he had to turn across traffic to enter the parking lot to the HiWay Inn. There are two cuts in the curb allowing access to the HiWay Inn parking lot from Governor Printz. As Mr. Hummel approached the first cut, he noticed oncoming traffic, so he continued to drift southward in order to make use of the second. According to Mr. Hummel, it was around 10:30 to 10:40 p.m. 4 While waiting for traffic to clear before turning into the parking lot, Mr. Hummel noticed two black men come out of the package store; the door was just closing behind them when Mr. Hummel first noticed the pair. One of the individuals appeared to be about six feet tall and the other about 5 8 or 5 9 . Both of the men wore dark clothing and the taller wore what appeared to be a knit ski cap. The two men spoke, and the shorter one went back into the package store. Meanwhile, the other ran across the parking lot. Seconds later the shorter man exited the parking lot and shouted something to the taller one. Mr. Hummel could not hear what was shouted as he was still on Governor Printz, with his windows up and his heater fan running. At this point, Mr. Hummel turned his attention to oncoming traffic. As that traffic cleared, the shorter individual ran across his headlights. He was not wearing a hat at this time, but appeared to be carrying something in his hand. The shorter man ran toward Governor Printz, jumped back to avoid oncoming traffic, then ran across Governor Printz to a black Volkswagen Rabbit parked in the parking lot of the Pepsi Cola building across the street from the HiWay Inn. The man jumped in the car and took off heading southbound, tires squealing all the way. Meanwhile, the taller man disappeared into the darkness running toward Wilmington along Governor Printz. Mr. Hummel entered the tavern, but no one was to be found. He called out the names of several HiWay employees, but no one responded. 5 He left the tavern and went next door to the package store. Upon walking through the front door, Mr. Hummel saw Phillip Seifert sitting on the stool with his face on the counter in a pool of blood. Mr. Hummel ran back to the exterior door of the tavern where there is a pay phone, and called 9-1-1. Ms. Milner ran to the front door while Mr. Hummel was talking with the 9-1-1 operator. Mr. Hummel was trying to calm Ms. Milner down while at the same time conveying information to the operator when he heard a noise from within the package store. It was Mr. Seifert falling off the stool onto the floor. 2. The Investigation Sgt. Gary Kresge of the Delaware State Police was on patrol in a marked car about four blocks away when he received a dispatch at 10:46 p.m. of unknown trouble at the HiWay Inn. As he arrived at the scene, a white male ran up shouting get an ambulance. Sgt. Kresge summoned further help and then entered the package store. The first thing he noticed was that the cash register was in disarray, and then he saw an older white male lying on his back on the floor, bleeding profusely. Moments later paramedics arrived and began to render assistance to Mr. Seifert, who was still alive. He was quickly rushed to the hospital where he later died. The autopsy revealed that Mr. Seifert had been shot three times with a .22 caliber weapon. 6 After talking to Mr. Hummel, Sgt. Kresge put out a radio call for two black males, one driving a black car, perhaps a VW Rabbit. The sergeant then proceeded to secure the scene, making certain that no one either left or entered. An evidence detection officer from the State Police soon arrived. He was able to lift 15 prints from the scene, but only five of those all lifted from the cash register later turned out to be useable. All five belonged to the owner, Lawrence Seifert. No shell casings were found at the scene. With no real leads, the police went to unusual lengths to develop information. State Police detective Edward Mayfield, the chief investigative officer for this crime, went to the corner of Todds Lane and Claymont Streets in an effort to put word out on the street that he was willing to pay for information about the killing. He next passed out twenty dollar bills at the Kirkwood Community Center looking for informants. Eventually, someone gave a handwritten note to Kenneth Valen, another clerk at the package store at the HiWay Inn. The note suggested that Marlo was involved in the killing. Marlow is the middle name and street name of Defendant. The police never learned the identity of the author of that note. Two weeks after the murder, Wilmington police obtained an arrest warrant for Defendant and a search warrant for the home in which he was living. Neither warrant mentioned the Seifert killing. Instead they were issued in connection with two separate incidents being investigated 7 by Wilmington police in which children in the Riverside area of Wilmington had been wounded by gunfire. Nonetheless, Detective Mayfield of the state police was present when the warrants were executed the next morning at just after 6 a.m. Nothing uncovered in the search of the home linked Defendant to the HiWay Inn murder. Defendant was taken to the Wilmington Police Department headquarters and underwent initial processing. During the processing the police failed to discover heroin which Wright had on him. After the processing was completed, Wright was placed in a detective s interrogation room. The interrogation room is a small windowless room, measuring seven feet by seven feet, with a single windowless door. There is a metal seat for the suspect which is affixed to the floor or wall and which has a device that can be used to secure one loop of the handcuffs worn by the suspect. There is a video camera, protected by a metal box, which can be used to transmit video and audio of an interview to detectives offices located nearby. By design there is no clock in the interrogation room. This is the room in which Jermaine Wright spent most of the next thirteen hours. Defendant s interrogation and his statement to police are discussed at length later in this opinion. 2 Suffice it to say that Detective Merrill of the Wilmington Police Department began the interrogation with questioning about one of the non-fatal Riverside shootings. 2 See infra Part C, F(iii),(viii). 8 Detective Merrill was followed by another Wilmington detective, Robert Moser, who questioned him about the other non-fatal shooting. That interrogation drifted to other matters and, according to Detective Moser, Defendant eventually brought up the HiWay Inn murder. Initially, Defendant discussed the HiWay murder as involving someone named Tee (later determined to be Lorinzo Dixon) and an unnamed person. Later during the interview, Defendant came around to admitting that he was the unnamed second person and that he was the triggerman at the HiWay Inn. Unfortunately neither the Merrill nor the Moser interrogations were recorded despite the fact that the police had the capability to do so using the equipment mounted in the interrogation room. There is evidence, and the court so finds, that Wright manifested bizarre behavior during the Moser interview. At one point, Wright began speaking very softly, almost inaudibly, because he feared his answers to Detective Moser s were being overheard by Dixon and another individual. Later he curled up in a fetal position under the table in the interview room. At another point, he insisted on writing down his answers on a piece of paper, passing the paper to Detective Moser who in turn handed it back to Wright, whereupon Wright would eat the paper. State Police Detective Mayfield, who was listening while sitting in a nearby detective s office, conferred from time to time with Detective Moser during the latter s interrogation of Wright. At one time during Detective Moser s interrogation, Detective Mayfield told Moser: Keep it 9 up. It takes a long time. Do the best you can. now, just try to get what you can. We don t have anything Eventually, Detective Mayfield determined that he had heard enough and that it was time to obtain a videotaped confession from Defendant. A Wilmington police sergeant was called upon to set up a video camera in a nearby conference room. After the camera was set up, Detective Mayfield and Detective Moser conducted the only recorded interrogation of Defendant. The interrogation began at 7:34 p.m., roughly thirteen hours after Defendant had been taken into custody. The interrogation began with an attempt 3 by Detective Mayfield to advise Defendant of his Miranda rights. There followed an interrogation lasting roughly forty minutes in which Defendant told the police he was the triggerman in the HiWay Inn murder. The gist of his story was that Tee (Lorinzo Dixon) told Wright that he (Dixon) had scouted the HiWay Inn, that no one was there, and that it would be easy pickings. Defendant asserted that while at the package store Dixon ordered him to shoot the clerk and that if he did not, Dixon would kill Defendant. During his interrogation Wright repeatedly made statements which were contrary to the evidence. As discussed in some detail later, there were also numerous instances during the interrogation when Wright appeared to change what he was saying so as to yield to suggestions from Detective Mayfield. 3 As discussed later, the Miranda rights given by Det. Mayfield were defective. See infra Part F(viii). 10 The day after Defendant s interrogation the police executed a search warrant on Lorinzo Dixon s apartment. As with the search of Defendant s home, the police failed to uncover any evidence at Dixon s apartment linking Dixon (or Wright) to the crime. Detective Mayfield later showed a photograph of Dixon to Ms. Milner, the barmaid, in an effort to determine whether Dixon was the mysterious man who came into the tavern about an hour before the shooting. She did not recognize Dixon. When shown a photograph of Wright, she did not recognize him either. Aside from Wright s confession, the case against him was weak to non-existent. The investigation yielded no forensic evidence linking either Wright or Dixon to the crime. The murder weapon was never recovered, no shell casings were found, neither Wright s nor Dixon s fingerprints were found at the scene, no shoeprints matching shoes known to be owned by Wright or Dixon were ever found at the scene, no bloody clothing and no .22 caliber weapon was found at either Wright s or Dixon s home, and no red plaid shirt was found at either home. There were no eyewitnesses to the crime and there was no functioning security camera which recorded images of the robbery and murder. The only evidence linking Wright to this crime, other than his confession, was an alleged jailhouse confession by Wright to another prisoner. The jailhouse informant has since executed an affidavit in which he recanted his testimony about Wright s supposed confession. 11 3. Wright s Alibi Leondre Price frequently lived in Wright s home. Indeed he and Wright dropped out of school together. Price executed an affidavit stating that early on the night of the murder he, Wright, and some others got into a friendly argument over who was the best pool player. They decided to settle the issue at Georgie Boy s Pool Hall, arriving there around 7:00 or 7:30 p.m. They shot pool for several hours, and then purchased chicken from Lacy s, which is across the street from Georgie Boy s. They drove back to Wright s home around 11:45 p.m. or midnight. Willie Allen is Leondre Price s stepfather. He was also at Georgie Boy s on the night of the murder and remembers Price, Wright, and some others arriving around 7:30 to 8:00 p.m. and staying until about midnight. Mr. Price remembers that during the evening they brought in chicken from Lacy s. At trial Wright was portrayed as a successful drug dealer who had no need to commit a robbery. Kevin McIntosh was one of his valued customers. McIntosh was standing on the sidewalk near Wright s home around 11:30 p.m. on the night of the murder when two cars pulled up and Wright, Price, and some others got out. McIntosh spoke with them for a few minutes and then left. 12 Wright contends that Kevin Jamison and Jamison s cousin, Norman Custis, committed the murder. His evidence at the Rule 61 hearing consists almost exclusively of rumors on the street and alleged jailhouse confessions by Jamison. Myron Williams, for example, executed an affidavit in which he asserted that when he was incarcerated at Gander Hill Jamison told him that he (Jamison) knew 100 percent that Marlow didn t do the murder. * * * That s my work, I did it. Another individual incarcerated with Jamison, Calvin Brooks, executed an affidavit attesting that Jamison told him that Marlow didn t kill that man. My cousin Norman and I did it. A third fellow prisoner of Jamison s executed an affidavit attesting to the fact that while in jail, Jamison told him: They got the wrong mother fucker. Marlow didn t kill that man. I know that for a fact. It was me and my cousin. 4. Wright's co-perpetrator Lorinzo Dixon Wright s co-perpetrator, Lorinzo Dixon, testified during the Rule 61 evidentiary hearing. Dixon pled guilty to robbery in the first degree and a weapons charge stemming from the HiWay Inn crime. however, to maintain his innocence. He continues, By the time Dixon accepted the State s plea offer, Wright had been convicted of capital murder and sentenced to death. Facing charges of murder in the first degree, conspiracy, robbery in the first degree, and possession of a deadly weapon with intent to commit a felony, Dixon agreed to plead guilty to 13 robbery in the first degree and possession of a deadly weapon with intent to commit a felony in exchange for the other charges being dismissed and a recommendation of the State for a five year sentence which he believed would result in his release after six months. Dixon explained his rationale for pleading guilty to a crime he still contends he did not commit. I just seen friends of mines get the death penalty for a crime he didn t commit. I was scared. I didn t want to get the death penalty. So I accepted the plea. Dixon recounted his lawyer s advice: I was told was [sic] Marlow spent $60,000 on a lawyer. I am a public defender. You are going to die, Mr. Dixon. I took the plea. B. PROCEDURAL HISTORY It would be an understatement to say that this case has a long and convoluted history. Defendant Wright was represented at trial and his first penalty hearing by John M. Willard, Esquire, who at that time had been a member of the Bar for approximately sixteen years. Mr. Willard had previously been involved in a capital murder case as co-counsel with other attorneys, but this was his first time as lead counsel. It is somewhat misleading to refer to Mr. Willard as lead counsel, as he had no lawyer assistance nor did he have the assistance of an investigator. Mr. Wright s family apparently had little money, and the only money available was used to pay Mr. Willard s $10,000 fee. 14 No money was available to hire an investigator. As a result, Mr. Willard, who had no formal training as an investigator, was forced to act as his own. On many nights, he went to the Riverside area of Wilmington looking for possible witnesses. Riverside was an inner-city, predominantly black neighborhood where residents are often reluctant to talk to the police. Mr. Willard, who is white, likewise encountered a great deal of reluctance on the part of the residents to speak to him. On at least one occasion, he was threatened with physical harm by someone in the neighborhood. Prior to trial, Mr. Willard filed a motion to suppress Defendant s statement to the police. The motion alleged that Defendant was high on heroin at the time of the statement and that he was therefore unable to voluntarily waive his rights under Miranda. This court found that Wright was indeed intoxicated on heroin at the time he gave his statements but denied the motion, holding that the waiver of his Miranda rights was nevertheless knowing, voluntary, and intelligent. Wright then filed a motion for reargument requesting an opportunity to supplement the record with additional information concerning the effects of heroin use. The court denied the motion for reargument, holding that such information would not have affected its decision. Wright then filed a second motion in which he claimed that his statement should be suppressed because his detention from the time of his arrest until the time he made the statement was unreasonable. The 15 Court denied the motion holding that there was no evidence in this case of unreasonable delay. 4 In 1992 after a two week trial, a jury convicted Wright on two counts of First Degree Murder (intentional murder and felony murder), First Degree Robbery, and three counts of Possession of a Deadly Weapon during the Commission of a Felony. He was acquitted of First Degree Conspiracy. Following a penalty phase hearing, the jury unanimously found the statutory aggravating factor that the victim was over 62 and unanimously recommended death. The court later sentenced Wright to death by lethal injection. Defendant was represented by Joseph M. Bernstein, Esquire, on his direct appeal. On appeal, Wright contended that: (1) his confession should have been suppressed because it was obtained following an unreasonable delay between arrest and initial presentment; (2) the jury instructions during the penalty phase of the trial were insufficient in defining mitigating circumstances; (3) the trial judge erred in her determination of non-statutory aggravating circumstances and mitigating circumstances; (4) the imposition of the death sentence was disproportionate to the penalty imposed in similar cases; and (5) application of the death penalty statute, as revised after the date of the offenses in this case, violated the Ex Post Facto Clause of the United 4 State v. Wright, 1992 WL 207255, at *4 (Del. Super.). 16 States Constitution. The Delaware Supreme Court rejected Wright s contentions and affirmed his conviction and sentence. In 1994, Wright, still represented by Mr. Bernstein, filed his first motion for post conviction relief pursuant to Superior Court Criminal Rule 61. He alleged that his trial counsel was ineffective during both the guilt and penalty phases of trial. After ordering an evidentiary hearing, an expansion of the record, and full briefing on the motion, the trial judge held that Wright s trial counsel was prejudicially ineffective during the penalty phase and vacated Wright s death sentence. Wright s second penalty hearing was held in 1995. The new jury unanimously found that the evidence showed beyond a reasonable doubt the existence of two statutory aggravating circumstances. By a vote of 93 the jury recommended imposition of the death penalty. considering the jury s recommendation and conducting its After own independent analysis, the court again imposed the death penalty. The Delaware Supreme Court affirmed the sentence on appeal. Wright filed a petition for writ of certiorari to the United States Supreme Court, which was denied. Wright, now represented by Thomas A. Foley, Esquire, and Kevin J. O Connell, Esquire, filed his second motion for post conviction relief in 1997. In that motion, Wright alleged ineffective assistance of counsel in connection with his 1992 trial and appeal. 17 After an expansion of the record, another evidentiary hearing, and full briefing, the court denied the motion and the Supreme Court affirmed that decision. Next, Wright turned to the federal courts. In 2000, Messrs. Foley and O Connell filed a petition for writ of habeas corpus on his behalf in the United States District Court for the District of Delaware. In 2003, while his habeas corpus petition was pending in the federal court, Wright filed a third motion for post conviction relief in this court, which this court stayed pending the outcome of the federal case. It appears from the district court docket that over the span of eight years in federal court, the case went through several evidentiary hearings and several rounds of briefing. In 2008, Wright filed the present motion for post conviction relief. Shortly thereafter, Wright asked the federal court, which had not yet ruled on his petition for habeas corpus, to stay the federal proceedings so that he could exhaust his state law remedies. The district court granted that motion. Both sides have filed several voluminous and helpful briefs in support of their respective positions. The court conducted oral argument lasting several hours on the legal issues raised by the present motion, after which it concluded it needed an evidentiary hearing to resolve certain predicate factual issues. Pursuant to Superior Court Criminal Rule 61(h), the court ordered an evidentiary hearing, which lasted a week. The hearing reconvened the following month and lasted for two additional days. 18 Following the hearing the court requested proposed findings of fact and conclusions of law. Following those submissions the court requested additional briefing on several narrow legal issues. This is the court s ruling on Defendant s fourth Rule 61 Motion. C. THE EVIDENCE AT THE RULE 61 EVIDENTIARY HEARING Although Wright presented some factual testimony at the Rule 61 hearing, the large bulk of the evidence related to his ability or inability to understand what was happening during his interrogation and the reliability of his confession. Defendant introduced persuasive expert testimony at the evidentiary hearing concerning his addiction to heroin, the effects of that addiction as manifested during his interrogation, his intellectual status, and his susceptibility to suggestion. The State did not offer contradicting expert testimony. The court will summarize the experts testimony. 1. Deborah Mash, PhD The effects of heroin on Defendant Deborah C. Mash, PhD. is Professor of Neurology and Molecular and Cellular Pharmacology at the University of Miami Miller School of Medicine. She studies the chronic effects of abused substances on the brain for the purpose of finding medication for treatment. Dr. Mash has 19 worked extensively with addicted individuals, including heroin addicts. She is an expert in neuropharmacology, heroin, and brain function. Dr. Mash testified that defendant was markedly impaired at the time of his interrogation. She also testified to a reasonable degree of medical certainty that Defendant s purported waiver of his Miranda rights and subsequent confession were not knowing, intelligent, and voluntary. These opinions are based on her belief that Wright did not comprehend the questions he was asked regarding his rights. She described the dissociative, detached, and dream-like state resulting from heroin use and noted that Defendant s behavior during his interrogation indicated that he was in such a dream-like state. She described Defendant s occasional refusal to answer questions orally, writing down answers on paper, and then eating the paper as bizarre and paranoid. She linked this behavior to the dissociative state of an opiate high. Dr. Mash observed the initial signs of withdrawal in the video of the Defendant s interrogation. These included violent yawns, chills, restlessness, digging his hands in his pants, and a runny nose. These signs indicated that Wright was in a state of opiate intoxication and was beginning to go into withdrawal, which impacted his cognitive abilities. Dr. Mash further explained that Defendant s use of heroin early in life led to dependence, so by the time of his interrogation he was severely dependant on and tolerant of heroin. Moreover, she described how an addiction to heroin or opiates is a brain disease that leads to compulsive 20 drug use; problems with memory, attention, motivation, and decisionmaking; and long-lasting, fundamental brain changes. She also discussed the short half life of heroin in the blood, its conversion to morphine in the body which lasts only two to three hours, and the subsequent anticipation and fear of withdrawal on the part of the addict. Dr. Mash also reviewed the testimony of the detectives involved in the interrogation, and she noted that they left the room many times leaving Defendant alone. She believes that Defendant used some of the undiscovered heroin while in custody and that he was high when he confessed. Dr. Mash s opinion is that Defendant was titrating off during the eleven to twelve hours he was in custody meaning that he was using just enough heroin to keep himself in an opiate state, but that he was beginning to go through withdrawal. Dr. Mash opined that during the time Defendant was in custody, a synergism of the following factors exacerbated his state: a lack of sufficient quantity of heroin to last twelve hours, his low verbal IQ (62 on verbal performance and comprehension), his suggestibility, and sleep deprivation. She discussed how stress and the serious fear of withdrawal would have exacerbated Defendant s altered state inducing a fight or flight response because he was not using enough heroin to stave off withdrawal based on his tolerance. The court asked Dr. Mash about the half life of morphine. Dr. Mash explained that the amount of heroin in Defendant s system after 21 his arrest would continue to decline exponentially and that even though in her opinion he continued to use and was intoxicated during custody he was not using at the level to which he was accustomed. Dr. Mash concluded that Defendant did not have the capacity to know what he was saying, did not know what rights he was giving up, and did not understand the consequences of waiving Miranda when he was questioned. 2. Robert Maslansky, M.D. The effects of heroin and other impairments on Defendant. Robert A. Maslansky, M.D., graduated from Columbia University School of Medicine, completed post-doctoral training in internal medicine and endocrinology, and taught as a full professor at New York University School of Medicine. He is board certified in addiction medicine, is a member of and has lectured for the American Society of Addiction Medicine, and has worked with drug addicted individuals for thirty years. In preparation for testifying, Dr. Maslansky reviewed a video of Defendant s interrogation, testimony regarding the video, materials on police interrogation, and the reports of the other experts. Dr. Maslansky testified both at trial and during this proceeding about heroin and the effect it had on Defendant. Heroin addicts often exhibit pupillary constriction, dry mouth, difficulty urinating, and slow motor responses. Dr. Maslansky affirmed Dr. Mash s conclusion that Defendant was under the influence of heroin during his interrogation. 22 Dr. Maslansky further opined that Defendant s staring, slow responses, eyes dreamy look, and mumbling all indicated that Defendant was at the tail end of intoxication. Dr. Maslansky also referred to Defendant s hippopotamus yawn, sniffling and shuffling, irritability, and ticks as non-verbal manifestations of being high on heroin. He concluded that Defendant did not knowingly, intelligently, and voluntarily waive his rights. Dr. Maslansky also agreed with Dr. Mash s testimony that Defendant would not have been able to give informed consent due to his verbal comprehension problems. Furthermore, he agreed that Dr. Martell s opinion (discussed below) that Defendant was more suggestible than ninety-seven percent of the normal subjects would have been immensely helpful to him in making his own report prior to trial. According to Dr. Maslansky there is a disconnect between the more primitive parts of Defendant s brain affecting his executive functions such as making judgments about the significance of what is presently happening and projections regarding the future. Therefore, Dr. Maslansky believes Defendant was seriously impaired and the reports of Dr. Martell, Dr. Cooke, and Dr. Mash reinforce his belief. According to Dr. Maslansky, the fact that Defendant was suggestible, had cognitive impairment, and had verbal difficulties all compound the effects of the heroin intoxication, thus, affecting his capacity to make informed decisions. 23 3. Daniel suggestion. Martell, Ph.D.: Defendant s ability to resist Daniel Martell, Ph.D., received his degree in psychology from the University of Virginia and completed both his clinical internship and his post-doctoral fellowship in forensic neuropsychology at New York University Medical Center and Bellevue Hospital. He also did clinical work at Kirby Forensic Psychiatric Center, a maximum security hospital for the criminally insane. Dr. Martell has been practicing in forensic neuro-psychology for about twenty five years and is board certified in forensic psychology. He is a fellow of the American Academy of Forensic Psychology, a former member of the Board of Directors of the American Academy of Forensic Sciences ( AAFS ), and received AAFS s Meyer Turkler award for distinguished contributions to behavioral science and the law. A neuropsychologist studies how brain damage affects human behavior. Dr. Martell has lectured and published on this, and is on the faculty at the University of California Los Angeles School of Medicine. He has testified several hundred times as an expert witness in state and federal courts for both the prosecution and defense, about 85% of the time for the prosecution. Dr. Martell has opined in previous cases about suggestibility assessments, voluntariness comprehension of Miranda warnings. 24 of confessions, and In this case, Dr. Martell was asked to evaluate Defendant s vulnerability to change his answers, his suggestibility, and malleability as applied to a police interrogation. Dr. Martell testified that he evaluated Defendant for about three hours focusing on the Gudjonsson Suggestibility Scale ( GSS ), memory testing, tests for malingering, and a neuropsychological interview. After evaluating Defendant, Dr. Martell opined that Defendant had difficulties in school, a verbal comprehension deficiency, and likely has a learning disability in reading and math. Dr. Martell described the GSS suggestibility scale as a test of the degree of vulnerability a person has to suggestions that may contaminate or influence that person s ability to recall an event. According to his testimony, a person s degree of suggestibility is permanent, but being high on heroin or other factors could temporarily make someone more suggestible. The test is administered by telling the subject a story, asking the subject to recall the story from memory, asking the subject to recall it again after thirty minutes, and then asking the subject a series of suggestive questions that may or may not be answerable from the story. After the questions, the test administrator determines a score based on how many mistakes the subject made and then asks the subject to answer the questions again and to try to be more accurate. The administrator uses this process to develop a yield score, i.e. a measure of how much the subject yields to suggestion. For example, after initially being asked Did the assailant in the story use knives or 25 guns? and answering guns, the subject is again asked the same question. If the subject responds by saying knives the second time, then the yield score is greater, showing an increased propensity to yield to suggestion. The GSS provides, among other things, a shift score which measures the subject s susceptibility to change (shift) his answers after being admonished by the test administrator. Dr. Martell opined that Defendant is extremely suggestible and that he is more likely to adopt an interrogative suggestion than 94 percent of normal people. Wright s shift score shows that he is more likely to change his answers in response to suggestion or pressure than 998 people out of 1000. Dr. Martell labeled this a profound impairment akin to mental retardation. He also stated that Defendant has a significant tendency to confabulate; that is, after being told a story and asked to repeat it, Wright would add details not in the original. He testified that this tendency is significant because there are many factual inaccuracies in Defendant s video-taped statement, which may reflect a similar psychological process. Dr. Martell noticed that Defendant exhibited little emotion during his interrogation and answered questions in a monotone voice indicating heroin intoxication. Dr. Martell also testified that situational factors, specifically the heroin intoxication and sleep deprivation, exacerbated Defendant s underlying trait of suggestibility at the time of his interrogation. These situational factors likewise exacerbated Defendant s 26 ability to understand the Miranda warning. Dr. Martell s testing suggests that Defendant has trouble understanding information presented verbally. Dr. Martell also testified regarding the risk factors for false confessions that were present during Defendant s interrogation. Defendant s young age, learning disability, intellectual deficiencies, cognitive deficiencies, tendency to confabulate, and extreme suggestibility all put him at high risk for making false statements. Dr. Martell further opined that Defendant s suggestibility was apparent from the number of wrong statements that he made during his interview including being wrong about the weapon, the number of shots, and the manner of escape. He also testified that Defendant demonstrated his suggestibility several times during the interrogation. The transcript of Wright s interrogation abounds with examples of shifting and yielding. Some examples follow. One notable example relates to information contained in the Homicide Pass On 5 prepared by Detective Mayfield. In the Pass On Detective Mayfield noted that the taller suspect was wearing a black knit hat and the shorter was wearing a baseball type cap. During the interrogation 6 Wright first denied he was wearing a hat, but quickly yielded to the detective s suggestion he was wearing a hat: 5 This is a document containing information about a crime being investigated and which is distributed to other police officers and agencies. 6 In the quoted transcripts of Defendant s interrogation, E.M. is Detective Mayfield, and W is Wright. 27 EM: Did, were you wearing a hat that night? W: No. Not that I know of. EM: Do you usually wear a hat? W: Yeah. EM: So you usually wear a hat but you don t know if you re wearing a hat this night? W: Yeah. EM: Okay. What about Lorenzo, was he wearing a hat? W: I believe so. Maybe we both was wearing a hat. The Pass On also reported that the crime took place between 2230 and 2245 hours. However, Wright during his interrogation told police the crime happened later. Once again Wright yielded to suggestion: EM: Okay. What time did this happen, approximately, as far as you know? W: What time did, ah . . . EM: All of this happen. W: It s about, came and got me about 11, I d say about 11:30, 12 o clock. EM: Uh huh. Could it have been earlier? W: Could have been. The Pass On also described the suspects as wearing dark clothing, but during the interrogation Wright told the police he did not remember what pants he was wearing. The transcript shows that Detective Mayfield steered him into stating he was probably wearing jeans: EM: What about yourself, what were you wearing? 28 W: I can t really say. I forgot. It s been, I can t really say. EM: You have no idea at all? W: No, sir. EM: Do you usually wear jeans? W: Yeah. EM: Well, do you think you had jeans on that night? W: Yeah. I probably had jeans on In summary, Dr. Martell opined that Defendant was a vulnerable individual who was high risk for providing unreliable information and that Defendant s statement may not be the most reliable confession ever provided. 4. Solomon Fulero, Ph.D., J.D. Solomon Fulero, Ph.D., J.D., is Professor of Psychology at Sinclair College, Clinical Professor of Psychiatry at Wright State University School of Medicine, and adjunct Professor of Law at the University of Cincinnati School of Law. Dr. Fulero has a forensic psychology practice in Ohio where he is also a licensed attorney. He received his doctorate in psychology and his law degree from the University of Oregon in 1979. He is a fellow of the American Psychological Association and a member of the Ohio State Bar Association. During the 1990s, Dr. Fulero was appointed by the United States Attorney General to the Technical Working Group on Eyewitness Evidence that was composed of prosecutors, defense attorneys, law 29 enforcement officers, and scientists. The Group compiled a report entitled Eyewitness Evidence, a Guide for Law Enforcement that the Department of Justice published. Dr. Fulero has also published peerreviewed works on the topic of the psychology of interrogations and confessions. His work was cited by the Supreme Court of the United States for the proposition that those with cognitive limitations are more suggestible and, thus, more likely to confess falsely. 7 The Court also cited the article for its argument that people with low IQs are more likely to act as followers, and the article goes on to discuss competency to waive Miranda rights. 8 Dr. Fulero has spoken extensively about of the psychology of interrogations and confessions at national and international scientific meetings. He also teaches a course in psychology and law and has coauthored a textbook containing a chapter on interrogations and confessions. Moreover, he has testified at hearings in state, federal, and military courts regarding the psychology of interrogations and confessions on behalf of the prosecution and defense. Dr. Fulero testified regarding the Reid technique a police interrogation method used to elicit confessions by making suspects believe that confessing is in their best interest. According to Dr. Fulero, the Reid technique usually involves the use of a bare interrogation room, containing only a desk and chairs, located within a maze of hallways at a 7 8 See Atkins v. Virginia, 536 U.S. 304, 321 n.25 (2002). Id. at 318, n.24. 30 police station. The technique requires an officer to attempt to establish a rapport with the suspect so that the suspect will be more likely to talk and believe that the officer is on his or her side. The first step in such an interrogation is direct positive confrontation for example, We already know you re guilty, we re not here to talk about whether you re guilty, we re here to talk about what happened. At this point a suspect is put in a hopeless position and is, therefore, more likely to accept what the officer suggests as a face-saving way out or an incentive. Incentives can include confessing to end the interrogation and escape the room, avoiding the consequences of threats, or accepting the ploy by the police that they believed what happened may have been an accident. Dr. Fulero further testified that an incentive could also be the presentation of an alternative question to the suspect. For example, We already know that you did this, but the real question is whether or not this was planned or whether it was accidental. Other alternative include suggesting that someone else was at fault, that the suspect was under the influence of drugs, or that the suspect was coerced. Dr. Fulero saw evidence of the Reid technique during Wright s interrogation. He described the Reid technique as psychologically coercive. Specifically, he referred to Defendant being asked if the crime was planned or accidental and whether he was on drugs. He pointed to questions relating to the co-perpetrator taking advantage of and threatening Defendant, thus inviting Wright to attempt to minimize his 31 culpability by blaming Dixon. These questions, according to Dr. Fulero, demonstrate that the officers were attempting to use the Reid technique to allow Defendant to save face and minimize his involvement in the crime by admitting to accident, drug use, or threats. Dr. Fulero also testified about the risks of false confessions. He stated that false confessions increase significantly after six hours of interrogation. Defendant was in custody for nearly thirteen hours, when the interrogation ended. According to the testimony, sleep deprivation is also a contributing factor to false confessions and Defendant had not slept the night before he was interrogated. Other factors that increase the possibility of false confessions are cognitive limitations, drug use, suggestibility, and personality type. Evidence of all of these was presented in the instant case. According to Dr. Fulero, Wright likely had difficulty understanding the Miranda warnings given to him. Dr. Fulero stated that the Wright s verbal IQ of 62 would affect his ability to understand his rights and his ability to decide whether to make a statement. Someone with Defendant s degree of deficit can learn to mask his disability by either nodding or saying yes a lot. When presented with the litany of his Miranda warnings, this yeah-saying could have occurred, even if Defendant did not comprehend the warning. In fact, Dr. Fulero testified that he saw no verbal indication that Defendant understood his rights. 32 Finally, from his review of Defendant s confession, Dr. Fulero testified that some of the information provided by Defendant was not correct, for example the caliber of the gun used in the crime and the number of shots fired. Moreover, he stated that Defendant provided no information that was new to the police. When a statement occurs in such a manner, Dr. Fulero opined, contamination of the confession can occur calling into question its reliability. As Dr. Fulero put it, the inaccurate statements raise red flags about the reliability of the confession . . . [and Defendant s] ability to knowingly and intelligently waive his Miranda rights. 4. Significance of Expert Testimony The expert testimony does not necessarily mean that Wright s interrogation was unconstitutional. For example, there is nothing illegal about a police officer s use of the Reid technique during interrogations of suspects. Indeed, that technique has frequently been accepted as a legitimate investigative tool. Moreover, the court notes that the experts were not criticizing the police. None of them suggested, for example, that police officers must administer a GSS or IQ test before questioning a suspect. Nonetheless, the expert testimony enables the court to assess the reliability of Wright s confession. In this regard, the court finds that Wright s confession was almost entirely lacking in reliability. 33 In particular, the court finds that (1) Wright likely did not understand his rights when given the Miranda warnings; (2) Wright was predisposed to being easily persuaded; (3) Wright s lack of sleep, the length of his interrogation, his heroin intoxication, and the early withdrawal stages all exacerbated his predisposition to suggestion; and (4) the interrogation was designed in part to suggest the correct answers to Wright. Confirming the lack of reliability of Wright s statement is the undisputed conclusion that many of the key facts recited by Wright in his statement are demonstrably wrong. As discussed below, these factual findings take on considerable importance in determining whether Wright can invoke the actual innocence exception to the procedural bars contained in Rule 61. These factual finds are also important to the court s findings regarding whether Defendant knowingly and intelligently waived his Miranda rights. D. DEFENDANT S CLAIMS Defendant, who twice amended his present Rule 61 motion occasions, presents multiple arguments which he contends require vacation of his death penalty or his conviction or both. His claims can be summarized as follows: 1. Defendant s felony murder conviction must be vacated because the felony murder conviction 34 was used as a statutory aggravating circumstance, and his death penalty must also be vacated. 2. Defendant is actually innocent. 3. Defendant s statement to the police was involuntary. 4. All of Defendant s prior counsel rendered ineffective assistance of counsel. 5. Defendant s previous counsel rendered ineffective assistance to Defendant at his second penalty hearing. 6. This court failed to instruct the jury at Defendant s second penalty hearing that the aggravating factors must outweigh the mitigating factors beyond a reasonable doubt before the jury could recommend the death penalty. 7. Defendant s conviction and sentence must be vacated because the State withheld potentially exculpatory evidence in violation of Brady v. Maryland. 9 8. Defendant s statement was obtained in violation of Miranda v. Arizona. 10 9. Defendant s Miranda waiver was not made knowingly or intelligently. 9 10 373 U.S. 83 (1963). 384 U.S. 436 (1966). 35 E. RULE 61 PROCEDURAL BAR ANALYSIS Motions for post conviction relief in this court are governed by Superior Court Criminal Rule 61. The cornerstone of that rule is a series of procedural bars intended lend some finality to criminal convictions. Much of this case turns on those procedural bars. Wright asks this court to apply an actual innocence exception to those procedural bars akin to that found in Schlup v. Deco. 11 Before the court may do so, it must engage in a three-step process: first, it must define the actual innocence exception and identify its parameters; second, it must determine whether the exception is consistent with the history or purpose of Rule 61; and, third, because this judge is not free to rewrite Rule 61 on his own, the court must determine whether the actual innocence exception can be found within the existing language of the rule. After this process the court s work is not yet done. It must determine whether Wright has adduced evidence sufficient to invoke the actual innocence exception. It is important to note early on that the Supreme Court has never held that the actual innocence exception is mandated by the federal constitution. Rather it arises from the Court s view of the equitable nature of federal habeas corpus jurisdiction. Consequently, Schlup is not 11 513 U.S. 298 (1995). 36 binding on the states. Nonetheless, as discussed below, the court finds that this exception is found within Rule 61(i)(5). 1. The actual innocence exception in the Supreme Court. The seminal case standing for the actual innocence exception is the United States Supreme Court s decision in Schlup v. Delo, wherein the Court held: However, if a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error, the petitioner should be allowed to pass through the [procedural bar] gateway and argue the merits of his underlying claims. 12 In other words, the actual innocence exception does not itself entitle the prisoner to relief; rather the exception merely allows courts to consider constitutional claims which would otherwise be procedurally barred. In order to invoke the actual innocence exception, the prisoner must show by newly discovered evidence that it is more likely than not that a reasonable juror would not find him guilty beyond a reasonable doubt. 13 This does not require the reviewing court to decide whether the prisoner is guilty beyond a reasonable doubt. Rather the court must make a probabilistic determination about what reasonable, properly instructed jurors would do. 14 This burden is a difficult one for movants 12 13 14 Id. at 316. Id. at 299. Id. at 329. 37 to satisfy; it is intended to limit findings of actual innocence to rare or extraordinary cases. 15 In determining whether a prisoner has made the requisite showing of actual innocence, the court must assess all of the evidence, including that which was excluded and that which was wrongfully admitted: When presented with an attempt to invoke the actual innocence exception the court is free to evaluate the credibility of the witnesses and weigh the evidence. It may consider evidence which was previously excluded or which should have been excluded, giving proper weight to the reliability of that evidence. In assessing the adequacy of petitioner's showing, therefore, the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on actual innocence allows the reviewing tribunal also to consider the probative force of relevant evidence that was either excluded or unavailable at trial. 16 Unlike a summary judgment ruling, the actual innocence exception often requires the reviewing court to assess the credibility of the witnesses: Obviously, the Court is not required to test the new evidence by a standard appropriate for deciding a motion for summary judgment. Instead, the court may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence. 17 There is considerable debate in the lower federal courts whether the motion must be discovered by newly presented or newly discovered evidence. 18 15 16 17 18 Some, such as the Third Circuit, have refused Id. at 321. Id. at 327-28. Id. at 331 (internal citations omitted). Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir. 2006). 38 to weigh in . . . on the newly presented versus newly discovered issue[]. 19 Fortunately this court need not predict the winner of this debate because it finds that the expert testimony comes within the sort of evidence envisioned in Schlup. According to the Schlup court [t]o be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial. 20 This court finds that the voluminous expert testimony adduced at the Rule 61 hearing was not reasonably available to Wright at the time of his trial and therefore falls within the category of evidence contemplated in Schlup. 2. The history and purpose of Delaware s post conviction procedural bars. The development of post conviction remedies in state courts was in large part spurred by the expansion of federal habeas corpus jurisdiction. In 1867, Congress extended the reach of the federal writ of habeas corpus to persons convicted of crimes in state courts. 21 At common law, the writ of habeas corpus could be used only to test the jurisdiction of the court in which the prisoner was convicted and sentenced. 22 Toward the end of the 19th century, federal courts began to use the fiction that 19 United States v. Davies, 394 F.3d 182, 191 n. 8 (3rd Cir. 2005). Id. at 324 (emphasis added). 21 Habeas Corpus Act of 1867, 14 Stat. 385-86 (1867). 22 See Ex parte Watkins, 28 US 193, 194 (1830) (refusing to review on petition for writ of habeas corpus an alleged error by trial court where trial court had jurisdiction to hear case). 20 39 certain constitutional errors deprived the trial court of jurisdiction, thus enabling federal courts to review state criminal convictions for constitutional error under the guise of the writ of habeas corpus. This fiction was abandoned by the Supreme Court in 1942, 23 and state criminal convictions became subject to review for constitutional error without regard to whether that error somehow deprived the state trial court of jurisdiction to hear the case. 24 Not surprisingly state courts chaffed at the notion that they were unable to protect the constitutional rights of an accused. In 1973, Justice Powell observed that the present expansive scope of federal habeas corpus review has prompted no small friction between state and federal judiciaries. 25 More importantly, federal habeas review deprived the public of any sense of finality to state criminal judgments. Finality is essential to both the retributive and deterrent functions of criminal law. Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out. To unsettle these expectations is to inflict a profound injury to the powerful and legitimate interest in punishing the guilty. 26 23 Waley v. Johnson, 316 U.S. 101, 104-05 (1942) ( [T]he use of the writ [of habeas corpus] in the federal courts to test the constitutional validity of a conviction for crime is not restricted to those cases where the judgment of conviction is void for want of jurisdiction of the trial court to render it. It also extends to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused. ) (citations omitted). 24 Brown v. Allen, 344 U.S. 443, 447,48 (1953) (federal courts could review constitutional claims arising in state criminal prosecution notwithstanding that those claims had been decided by state trial and appellate courts in that prosecution). 25 Schneckloth v. Bustamonte, 412 U.S. 218, 263 (1973) (Powell, J., concurring). The Supreme Court later noted that there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, conscientious or learned with respect to [federal law] than his neighbor in the state courthouse. Stone v. Powell, 428 U.S. 465, 494 n.35 (1976). 26 Calderon v. Thompson, 523 U.S. 538, 555 (1998) (internal citations and quotation marks omitted). 40 Central to the development of state post conviction remedies was the judge-made rule that federal courts should ordinarily not entertain a state prisoner s petition for habeas corpus unless the prisoner has first exhausted his state court remedies. 27 This exhaustion requirement was codified into federal law in 1948 with the passage of 28 U.S.C. §2254, which provided in part that [a]n application for a writ of habeas corpus . . . shall not be granted unless it appears that the applicant has exhausted the remedies in the courts of the State . . . . The exhaustion requirement, according to the Supreme Court is principally designed to protect the state courts role in the enforcement of federal law and prevent the disruption of state judicial proceedings. 28 A prerequisite to the exhaustion requirement is that prisoners be given some clearly defined methods [in state courts] by which they raise claims of denial of federal rights. 29 Unfortunately at the mid-point of the last century, few states had such procedures in place. In 1965 Justice Brennan emphasized the benefits of viable state post conviction procedures: The desirability of minimizing the necessity for resort by state prisoners to federal habeas corpus is not to be denied. Our federal system entrusts the States with primary responsibility for the administration of their criminal laws. The Fourteenth Amendment and the Supremacy Clause make requirements of fair and just procedures an integral part of those laws, and state procedures should ideally 27 In re Hawk 321 U.S.114 (1944). The rule was first articulated in Ex parte v. Royall 117 U.S.241 (1886). 28 Rose v. Lundy, 455 U.S. 509, 518 (1982). 29 Young v. Ragen, 337 U.S.235, 239 (1949). 41 include adequate administration of these guarantees as well. If, by effective processes the States assumed this burden, the exhaustion requirement . . . would clearly promote state primacy in the implementation of these guarantees. Of greater importance, it would assure not only that meritorious claims would generally be vindicated without any need for federal court intervention, but that nonmeritorious claims would be fully ventilated, making easier the task of the federal judge if the state prisoner pursued his cause further. 30 He was forced to lament, however, that adequate state procedures [are] presently all too scarce. 31 Most states rapidly responded to this and similar urgings, and developed straight-forward post conviction procedures. 32 Delaware was among the early states to adopt an uncomplicated post conviction remedy. Until the middle of the twentieth century, Delaware prisoners seeking post conviction relief in the state courts were forced to proceed by petitions for writs of habeas corpus or coram nobis. Those petitioners faced difficult procedural hurdles and the relief offered by these writs was limited in scope. Accordingly, they were not the type of procedures which would likely cause federal courts to impose the exhaustion requirement on Delaware defendants seeking federal habeas corpus relief. In 1953 the Superior Court adopted Criminal Rule 35. 33 According to the commentary of the rule s drafters, 30 31 32 33 Case v. Nebraska, 381 U.S.336, 344-45 (1965) (Brennan, J., concurring). Id. at 345. D. Wilkes, Federal and State Postconviction Remedies and Relief 216 (1983). That rule provided: 42 Rule 35(a) is a combination of the first sentence of Federal Rule 35 and Uniform Rule 44 and amplifies and enlarges upon the Federal Rule 35. The adoption of the draft will provide for relief now obtainable by writ of Error Coram Nobis or Habeas Corpus. The failure of the Federal Rules to provide for such relief has been criticized. Although Rule 35(a) may have provided a sufficient post conviction procedure to implicate the exhaustion requirement in federal habeas corpus proceedings, it became apparent that it had its flaws. For example, there were no time limitations placed on defendants to file post conviction motions, nor were defendants penalized for a failure to present their grounds for post conviction relief at their trial and on their appeal. In a thorough and scholarly master s thesis, former Superior Court Judge Bernard Balick 34 observed that at that time defendants had greater freedom of argument in post conviction proceedings than they did in their direct appeals. The court may correct an illegal sentence at any time. A prisoner in custody under sentence and claiming a right to be released on the ground that such sentence was imposed in violation of the Constitution and laws of this State or the United States, or that the court imposing such sentence was without jurisdiction to do so, or that such sentence was in excess of the maximum sentence authorized by law or is otherwise subject to collateral attack, may file a motion at any time in the court which imposed such sentence to vacate, set aside, or correct the same. Unless the motion and the files and records of the case show to the satisfaction of the court that the prisoner is not entitled to relief, the court shall cause notice thereof to be served on the Attorney General, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction or that the sentence imposed was illegal or otherwise subject to collateral attack, or that there was such a denial or infringement of the constitutional rights of the prisoner as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge the prisoner or re-sentence him or grant a new trial or correct the sentence as may appear appropriate. The court need not entertain a second motion or successive motions for similar relief on behalf of the same prisoner. 34 Judge Balick served with distinction on this Court from 1973 to 1994. He continued his judicial career serving as a Vice Chancellor of the Court of Chancery until 1998. The court is indebted to Judge Balick, who has kindly given permission to attach a copy of his thesis to this opinion. The court has done so in order that it will be readily available to the criminal bar. 43 The absence of limitations in Rule 35(a) is likely explained by the then prevailing federal doctrine that a procedural default by a state prisoner did not bar federal habeas corpus review unless the default was a deliberate by-pass by the prisoner of a state rule. 35 However, in the mid-1970 s the rule evolved in federal courts that a prisoner s procedural default in state court would bar later federal habeas corpus review unless the prisoner could show cause for his or her failure to comply with the state procedural requirement and actual prejudice resulting therefrom. 36 Not long thereafter Delaware courts engrafted the cause and actual prejudice test onto Rule 35 when the defendant had defaulted on a state procedure. 37 Aside from the judicial gloss of the cause and prejudice rule, Rule 35 remained largely unchanged until 1987, when this Court promulgated the new and expansive Rule 61 38 which rule largely resulted from Judge Balick s masters thesis. In his thesis, Judge Balick expressed concern that the largely unfettered ability of convicted defendants to file petitions for post conviction relief was having a deleterious effect on the administration of justice. The broad scope of the then existing rule was rapidly eroding the common law rule that an application for post conviction relief is not a substitute for an appeal; it resulted in the 35 E.g. Fay v. Noia, 372 U.S. 391 (1963 ); Johnson v. Zerbst, 304 U.S. 458 (1938). E.g. Francis v. Henderson, 425 U.S. 536 (1976); Wainwright v. Sykes, 433 U.S. 72 (1977). 37 Conyers v. State, 422 A.2d 343 (Del. 1980) (holding that defendant in Rule 35 proceeding who failed to move to suppress evidence must show cause for his failure to do so and actual prejudice as a result); Johnson v. State, 460 A.2d 539 (Del. 1983) (applying same rule in Rule 35 proceeding to defendant who objected to introduction of confession at trial but failed to challenge it on direct appeal). 38 Jackson v. State, 654 A.2d 829, 831 (1995). 36 44 inundation of this court with petitions the vast majority of which were meritless 39 ; and it greatly diminished, if not extinguished, any sense of finality to criminal judgments. As a remedy Judge Balick proposed that (with certain limited exceptions) a post conviction claim should be barred if (1) it was formerly adjudicated; (2) it was not raised in the proceeding leading to conviction; (3) it was presented in an earlier post conviction motion; or (4) it was filed more than two years after the conviction became final. Not long after Judge Balick s proposal, the United States Supreme Court acknowledged the importance of such bars: We now recognize the important interest in finality served by state procedural rules, and the significant harm to the states that results from the failure of federal courts to respect them. 40 Judge Balick s recommendations (with some minor modifications) were incorporated in Rule 61, which was enacted by this court effective January 1, 1988. The importance of the bars found in Rule 61 has been underscored by rulings of the Delaware Supreme Court. Our Supreme Court apparently sensed that the expedient of denying a meritless claim on its merits rather than engaging in the sometimes more difficult task of determining whether the claim is procedurally barred could lead to a drift away from those procedural bars and ultimately undermine the purpose of Rule 61. In order to avoid such an erosion, the Supreme 39 Current Rule 61 has not completely stemmed the tide of repetitive meritless actions. In recent years one convicted felon has filed sixteen Rule 61 motions. See Epperson v. State, 2010 WL 4009197 (Del.). 40 Coleman v. Thompson, 501 U.S. 772, 750 (1991). 45 Court has firmly and repeatedly held that trial courts are required to first determine if the post conviction claim is barred and if, and only if, it is not barred are they permitted to reach the merits of the claim. 41 In sum, at least three general principles can be gleaned from the history of Rule 61. First Delaware s framework for post conviction relief was created, at least in part, to limit the role of the federal courts in resolving state criminal matters. Second, the rule is intended to preserve to the greatest extent possible the concept of finality of criminal judgments. Third, the rule is designed to reduce the burden of applications for post conviction relief on limited and scarce judicial resources. The court finds that the gateway innocence claim is consistent with those purposes. 3. The actual innocence exception does not defeat the purpose of the procedural bars. As noted above, the creation of modern state post-conviction remedies was in large part a response to the development and enlargement of federal habeas corpus jurisdiction. The idea was that states could preserve much of their sovereignty over state criminal matters if it provided adequate opportunities for post conviction 41 Wood v. State, 2011 WL 4396996, at *1 (Del. 2011) (Order) ( It is well-settled that the Superior Court must determine whether a defendant has met the procedural requirements of Rule 61 before considering the merits of his postconviction claims. ) (citing Younger v. State, 580 A.2d 55, 554 (Del. 1990)); Richardson v. State, 3. A.3d 233, 237 (Del. 2010) ( Before considering a motion for postconviction relief on the merits, the application of any procedural bar under Rule 61(i) must be addressed. ); Norcross v. State, 2011 WL 6425669, at *12 (Del. 2011) ( The threshold issue is whether these claims are procedurally barred under Rule 61(i)). 46 remedies. purpose. Adoption of an actual innocence exception furthers this If Delaware courts were to refuse to consider such an exception, Delaware prisoners would still be entitled to raise it in federal courts. It goes without saying that it is more consistent with the purpose of Rule 61 if Delaware courts have the first opportunity to pass upon actual innocence claims. On the surface it might appear that allowance of actual innocence claims is antithetical to the concept of finality of judgments. Experience in the federal courts, however, has taught that legitimate claims of actual innocence are exceedingly rare and therefore the actual innocence exception does not threaten the state s interest in finality. 42 Explicitly tying the miscarriage of justice exception to innocence thus accommodates both the systemic interests in finality, comity, and conservation of judicial resources, and the overriding individual interest in doing justice in the extraordinary case. 43 One might argue that adoption of the actual innocence exception will inundate courts with petitions from prisoners arguing they are actually innocent. This threat is not as ominous as it might sound because the standards are high and petitions not meeting that standard are subject to summary denial. First, the petitioner must demonstrate actual innocence on the basis of new evidence. A mere rehash of the evidence presented at trial will not suffice. 42 43 Second, the petition must Doe v. Menefee, 391 F.3d 147, 161 (2nd Cir. 2004). Schlup v. Delo, 513 U.S. 298, 313-14 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). 47 allege a colorable constitutional error. Merely presenting the argument I am innocent will not do the trick. Rather the petitioner must show newly presented evidence that I am innocent and there was a constitutional error in my trial which must be considered because of my innocence. Given these high hurdles the court will be able to quickly dismiss any meritless claims. As the Supreme Court put it [g]iven the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected. 44 The court concludes, therefore, that the adoption of an actual innocence exception to the procedural bars in Rule 61 does no injury to the purpose and intent of those bars. 4. An actual innocence exception is embodied in the language of Rule 61(i)(5). A single judge is not free to rewrite the court s procedural rules. Therefore, having concluded that an actual innocence exception is consistent with the purpose of Rule 61, the court must determine whether the exception can fairly be found within the language of Rule 61. The court finds that this is, in fact, the case. Rule 61(i)(5) provides that three of the procedural bars in that rule shall not apply to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings 44 Calderon v. Thompson, 523 U.S. 538, 559 (1998). 48 leading to the judgment of conviction. 45 The cases applying subsection five have never turned on the probable guilt or innocence of the petitioner. Rather they turn on the nature of the alleged constitutional violation. But this does not mean that the probable guilt or innocence of the defendant is not a legitimate consideration under the rule. Rule 61 speaks in terms of the reliability and fairness of the proceedings. No one can reasonably argue (and the parties in this case do not) that the conviction of an innocent person because of a constitutional error does not call into question the fairness and reliability of the result. Finally, by its terms the touchstone of Rule 61(i)(5) is the prevention of a miscarriage of justice. The execution of an innocent man is the paradigm of a miscarriage of justice. 5. Wright has adduced sufficient evidence to invoke the exception. The final inquiry is whether Defendant has made a showing that it is probable that a reasonable juror would not find him guilty beyond a reasonable doubt. The court find he has done so. As noted earlier, there is no forensic evidence linking Wright to the murder of Philip Seifert. No foot prints matching shoes known to be owned by Wright were found at the scene, no fingerprints were recovered, no blood was found on any of Wright s clothing, no shell casings were recovered, there was no working surveillance camera in the store, and there were no eyewitnesses. 45 Superior Court Criminal Rule 61(i)(5). 49 In short, the only evidence against Wright is his confession, the statement of jail house informant Samuels, and the admission of Lorinzo Dixon during his plea colloquy that he participated in the crime. Later the court will discuss why Wright s confession should not have been admitted. But even assuming it was properly admitted, the newly presented expert testimony makes it probable that a reasonable juror would not find much of the confession reliable. The expert testimony was discussed at some length earlier in this opinion and need not be repeated here. Suffice it to say that their testimony, coupled with the fact that Wright s confession was often factually wrong, raises grave concerns about its reliability. It should be stressed that this is not a case in which Defendant has presented testimony from itinerant snake oil salesmen who have opinions for hire. In Harris v. Vasquez 46 the Ninth Circuit Court of Appeals expressed concern over the prospect of claims of actual innocence being based upon the testimony of experts who were hired for the sole reason that they were willing to present favorable testimony. Because psychiatrists disagree widely and frequently on what constitutes mental illness and defendant could, if Harris s argument were adopted, always provide a showing of factual innocence by hiring psychiatric experts who would read a favorable conclusion. 47 That concern is not present here. The experts who testified on behalf of Defendant 46 47 are nationally recognized 949 F.2d 1497 (9th Cir. 1990). Id. at 1515. 50 with impeccable credentials. Perhaps most importantly, the State did not offer any evidence disputing their conclusions. Thus the concerns expressed in Harris are not present here. The only other evidence at trial linking Wright to the crime was the testimony of jailhouse informant, Gerald Samuels. Later in this opinion the court opines that the State made no offer of leniency or promise of special favors to Samuels in exchange for his testimony. The court is convinced, however, that Samuels had a unilateral expectation of some benefit to be derived from his testimony. This casts Samuels testimony in a harsh light. Forty years ago the Delaware Supreme Court quoted with approval 48 the Illinois Supreme Court in People v. Hermens 49 in which the latter court wrote: It is, however, universally recognized that such testimony has inherent weaknesses, being testimony of a confessed criminal and fraught with dangers of motives such as malice toward the accused, fear, threats, promises or hopes of leniency, or benefits from the prosecution, which must always be taken into consideration. Some jurisdictions attach such weight to these weaknesses that the rule has been abrogated by statute, while those jurisdictions which follow the rule, recognizing the questionable character of such testimony, attempt to restrict the weight to be given to it by statements that it is not regarded with favor, is discredited by the law, should be weighed with care, is subject to grave suspicion, should be viewed with distrust, and that it should be scrutinized carefully and acted upon with caution. * * * This court has also said that where it appears that the witness has hopes of reward from the 48 49 Bland v. State, 263 A.2d 287 (Del. 1970). 125 N.E.2d 500 (Ill. 1955). 51 prosecution, his testimony should not be accepted unless it carries with it absolute conviction of its truth. 50 The Hermens court was writing about testimony from a co-conspirator, but its observations apply with equal force to a jailhouse informant who expects to gain something from his testimony. The court s assessment of Samuels trial testimony falls far short of absolute conviction of its truth, and therefore it concludes that the testimony would not have persuaded a reasonable juror that Wright was guilty beyond a reasonable doubt. Finally the State did not have Dixon s plea colloquy available to it at the time of Wright s trial. The court must consider it, however, in determining if Wright is actually innocent for purpose of the exception to the procedural bars. Dixon s explanation for his plea that he saw an innocent friend sentenced to death and he could avoid the possibility of a similar fate simply by serving an additional six months in prison is plausible, if not compelling. The court finds therefore that, even taken in conjunction with the other testimony, Dixon s plea would likely not persuade a reasonable jury to conclude Wright is guilty beyond a reasonable doubt. In sum, the court projects that in light of the new evidence a reasonable juror would not find Wright guilty beyond a reasonable doubt. The court emphasizes that it is not saying that Wright did not murder 50 Id. at 504-05 (internal citations omitted) (emphasis added). 52 Phillip Seifert. It is simply saying that in light of the new evidence it is likely a reasonable jury would not find beyond a reasonable doubt that he did. 6. Application of the actual innocence exception to this case. In light of the above, the court concludes that Rule 61(i)(5) embodies an actual innocence exception and that Wright has met the high evidentiary burden in order to avail himself of it. This does not mean that all of Wright s arguments are not subject to procedural bars. Rather his claim that his statement was involuntary remains barred by Rule 61(i)(4) because the exception in Rule 61(i)(5) by its terms does not apply to claims barred by subpart (i)(4). Nor does the actual innocence exception save Wright s claim that the jury was improperly instructed on felony murder. That is an issue of state law, and Rule 61(i)(5) applies only to alleged constitutional errors. Finally the court s adoption of an actual innocence exception to the procedural bars does not mean that Wright s arguments do not fall within other exceptions to those bars. Indeed, would the court have entertained Wright s two critical arguments the Brady violation and the Miranda violation even if the court had not adopted the actual innocence exception to the procedural bars in Rule 61. 53 F. ANALYSIS OF DEFENDANT S CLAIMS 1. Defendant s claim that the jury was improperly instructed on the felony murder rule. Defendant argues that his conviction for felony murder must be vacated because the court s instruction did not comport with Williams v. State. 51 He further contends that because the felony murder was one of the statutory aggravating circumstances relied upon by the jury during both of his penalty hearings, his death penalty must also be vacated. These arguments are barred by Rule 61. In order to understand the application of the procedural bar here, it is necessary to briefly examine the history of the substantive law giving rise to Defendant s argument. 52 Felony murder, like all crimes, is defined by statute. 53 At the time of Phillip Seifert s murder the crime of felony murder was defined as follows: A person is guilty of murder in the first degree when:* * * In the course of and in furtherance of the commission or attempted commission of a felony or immediate flight therefrom, the person recklessly causes the death of another person. 54 The statutory phrase in furtherance of has received a good deal of 51 818 A.2d 906 (Del. 2002). It should be emphasized that the Court is not examining the merits of Wright s argument, but is only reviewing the substantive law to determine when the three year time limitation in Rule 61 began to run. 53 11 Del. C. § 202(a) ( No conduct constitutes a criminal offense unless it is made a criminal offense by this Criminal Code or by another law. ). 54 Former 11 Del C. § 636(a)(2) (emphasis added). Section 636 was later amended to delete the phrase in furtherance of. 74 Del. Laws c. 246 §§ 2, 3. 52 54 judicial attention. In Weick v. State, 55 the Delaware Supreme Court opined that in furtherance of required that [d]eath must be a consequence of the felony . . . and not merely coincidence. 56 Twelve years later the Court seemed to depart from the idea that there must be some sort of causal link between the death and the underlying felony. In Chao v. State 57 ( Chao I ), it held that: [F]or felony murder liability to attach, a killing need only accompany the commission of an underlying felony. Thus, if the in furtherance language has any limiting effect, it is solely to require that the killing be done by the felon, him or herself. 58 The Chao I court did not expressly overrule its earlier decision in Weick in reaching its decision, however. The suggestion in Weick that there must be a causal connection between the killing and the underlying felony reached full bloom a few years after Chao I. In 2002, the Supreme Court again had occasion to revisit the in furtherance language found in the statute. In Williams v. State, 59 the Court sought to give effect to that phrase, and held that it required that the murder be committed to facilitate the underlying felony or the escape therefrom. 60 The Williams court expressly overruled that portion of Chao I which was inconsistent with its holding. Five years after Williams, the 55 56 57 58 59 60 420 A.2d 159 (Del. 1980). Id. at 163. 604 A.2d 1351 (Del. 1992). Id. at 1363. 818 A.2d 906 (Del. 2002). Id. at 912-13. 55 Supreme Court held in Chao II 61 that Williams must be retroactively applied. Wright argues that in light of Chao II his felony murder conviction and the resultant statutory aggravating circumstance cannot stand. The State contends, however, that Wright s argument is barred by the time limitation found in Rule 61(i)(1) which provides that a motion for post conviction relief must be filed within one year after a conviction becomes final or, in the case of newly recognized rights, within one year of when the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court. 62 The court agrees with the State. The issue here is when was the interpretation of former section 636(a)(2) first recognized for purposes of Rule 61. Defendant argues that it this occurred in Chao II, which made the holding in Williams retroactive, whereas the State contends it was first recognized in Williams. After Wright filed his motion the Delaware Supreme Court resolved the issue, holding that the time for filing Rule 61 motions began when Williams not Chao II was decided. 63 Because the instant motion was filed more than a year after Williams was decided, this aspect of the motion is procedurally barred. Defendant argues, in the alternative, that his claim should be heard under the miscarriage of justice exception in Rule 61(i)(5). The 61 Chao v. State, 931 A.2d 1000 (Del. 2007). Superior Court Criminal Rule 61(i)(1) (emphasis added). Rule 61 was later amended to reduce the three year limitation to one year. 63 Massey v. State, 2009 WL 2415294 (Del. Aug. 7, 2009). 62 56 short answer to that contention is that Rule 61(i)(5) applies only to a miscarriage of justice because of a constitutional violation. 64 Here there is no constitutional violation alleged; the purported error turns upon the interpretation of a state statute. 65 Consequently, on its face Rule 61(i)(5) is inapplicable. 66 By the same token, the actual innocence exception, which the court held is embodied in Rule 61(i)(5) is inapplicable to this claim. 2. Defendant is Actually Innocent In Herrara v Collins 67 the United States Supreme Court assumed, but did not decide, that even if no error occurred at trial, the federal constitution requires courts to vacate a conviction if the defendant could show he was actually innocent. Because they are not linked to constitutional errors, such claims are sometimes referred to as stand 64 Superior Court Criminal Rule 61(i)(5) (emphasis added). Ibrahim v. United States, 661 F.3d 1141, 1143-44 (D.C. Cir. 2011) ( any denial of non-constitutional claims (such as statutory protections . . . ) cannot amount to a substantial showing of the denial of a constitutional right. ) (citations omitted). 66 In Claudio v. State, 958 A.2d 846 (Del. 2008) and in Massey, the Supreme Court did not consider whether Rule 61(i)(5) could apply to the state law issues raised in Williams and Chao II. Instead, in both cases it found that there was no miscarriage of justice because the instruction actually given in the cases before it comported with the later holding in Williams. The same is true here. As discussed in the text, Williams held that the murder must facilitate or further the underlying crime or escape therefrom. The instructions given by this Court at the conclusion of the guilt phase portion of Defendant s trial adequately conveyed the concept later adopted in Williams: [T]he murder occurred during the commission of another felony, in this case, that the felony charged is Robbery First Degree. [And] . . . the murder was in furtherance of or was intended to assist in the commission of the felony. At oral argument, Defendant argued that the instruction given in his case was deficient because it did not match the language later used in Williams. But a criminal defendant is not entitled to an instruction worded in a particular manner so long as it the instruction adequately conveys the law. Allen v. State, 953 A.2d 699, 701 (Del. 2008). The instruction given at Wright s trial adequately conveyed the law as later interpreted in Williams. 67 506 U.S. 390, 417 (1992) ( We may assume, for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of actual innocence made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. ). 65 57 alone actual innocence claims. The stand alone innocence claim in Herrera is different to the previously discussed actual innocence exception to procedural bars. In Schlup v. Delo 68 United States Supreme Court explained the difference this way: As a preliminary matter, it is important to explain the difference between [the procedural] claim of actual innocence and the [stand alone] claim of actual innocence asserted in Herrera v. Collins. In Herrera, the petitioner advanced his claim of innocence to support a novel substantive constitutional claim, namely, that the execution of an innocent person would violate the Eighth Amendment. Under petitioner's theory in Herrera, even if the proceedings that had resulted in his conviction and sentence were entirely fair and error free, his innocence would render his execution a constitutionally intolerable event. Schlup's claim of innocence, on the other hand, is procedural, rather than substantive. His constitutional claims are based not on his innocence, but rather on his contention that [constitutional errors occurred at his trial.] 69 Defendant now asks this court to embrace the concept of stand alone actual innocence claims. The decision to allow prisoners to present stand alone innocence claims is not as easy as it might seem, as there are competing constitutional and public policy questions. 70 Indeed the Herrara court skirted the issue by simply assuming that such claims can be presented and then finding that the petitioner did not present adequate evidence of 68 513 U.S. 298 (1995). Id. at 313-14 (1995) (internal citations omitted) (internal quotations omitted). 70 This court does not have to struggle with the additional public policy issue of federalism as it pertains to this issue. See Herrera, 506 U.S. at 401 ( Few rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence. ). 69 58 his actual innocence. The Chief Justice explained the theory behind the claim in Herrera: This proposition has an elemental appeal, as would the similar proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime for which he was convicted. After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent. 71 Put another way, it is crystal clear that the execution of an innocent person is at odds with contemporary standards of fairness and decency. 72 In contrast to the possibility of executing an innocent person, some public policy ground disfavor the actual innocence exception. As discussed earlier, finality is important in our criminal justice system. 73 Moreover, there is no guarantee that the guilt or innocence determination would be any more exact. To the contrary, the passage of time only diminishes the reliability of criminal adjudications. 74 It would put the court in the difficult position of having to weigh the probative value of hot and cold evidence on [defendants ] guilt or innocence. 75 Thus this exception should not be taken lightly and if ever embraced by the Delaware Supreme Court, it should only be done so in exceptional cases. 71 Id. at 398 (citing United States v. Nobles, 442 U.S. 225, 230 (1975)). Schlup, 513 U.S. at 431 (Blackmun, J., dissenting) (citing Spaziano v. Florida, 468 U.S. 447, 465 (1984)). 73 See supra Part E. 74 Herrara, 506 U.S. at 403 (citations omitted). 75 Id. at 404. 72 59 The court believes that if the Delaware Supreme Court finds a stand alone actual innocence exception, the burden on the defendant would necessarily be very high. The Herrera Court observed: But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high. 76 A prisoner must show, by clear and convincing evidence, that no reasonable juror could find him guilty beyond a reasonable doubt. A reviewing court must make this determination in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial. 77 In In re Davis, 78 the Supreme Court remanded a claim of actual innocence to the District Court for a determination of whether the evidence clearly establishes petitioner s innocence. Further guidance can be found in Delaware s post conviction remedy statute relating to newly discovered DNA evidence. That statute provides that the court may grant a new trial if the person establishes by clear or convincing evidence that no reasonable trier of fact . . . would have convicted that 76 Id. at 417. Sawyer v. Whitley, 505 U.S. 333, 339, n.5 (1992) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 455, n.17 (1986); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)) (internal quotations omitted) (noting the Court was considering actual innocence in the bypass provision context). 78 130 S.Ct. 1 (2009) (Mem). 77 60 person. 79 In light of this guidance, the court finds that for present purposes Wright must establish his actual innocence by showing through clear and convincing evidence that no reasonable juror could find him guilty beyond a reasonable doubt. Assuming, but not deciding, that a stand alone actual innocence claim is cognizable in this court, Wright has not satisfied the high evidentiary bar for such a claim. Although the court finds from the record and newly presented evidence that it is more likely than not that a reasonable juror would not find Wright guilty beyond a reasonable doubt, Wright has not proven this point by clear and convincing evidence. The new expert evidence proffered by Wright raises serious doubts about the reliability of his confession, but the court cannot say that Wright has proven by clear and convincing evidence that his statement is entirely lacking in reliability. It is true that Wright was highly suggestible, but the evidence does not show that every statement contained in his confession is the product of suggestion. It is also true that Wright was intoxicated and going through the early stages of withdrawal, but that does not translate to the conclusion that every statement in his confession was untrue. And even though there are inconsistencies between Wright s confession and the tangible evidence (such as the caliber of the gun and the number of gun shots), other portions of his statement are consistent with the evidence (such as the make and color 79 11 Del.C. §4504 (emphasis added). 61 of the getaway car). In short the court cannot discard Wright s confession entirely. In addition to Wright s confession, the State proffered the testimony of Gerald Samuels to the effect that Wright admitted to the murder when they were in jail together. The court views this testimony with considerable skepticism, but it cannot say that Wright has shown by clear and convincing evidence that it is false. The State would now have available to it the transcript of Dixon s plea colloquy in which he admitted participating in the crime. Even though Dixon s explanation that he entered the plea because he was offered a sweetheart deal is plausible, it cannot be said that Wright has negated the significance of that plea with clear and convincing evidence. Finally the evidence that Kevin Jamison and Norman Curtis were the actual perpetrators of this crime consists largely of purported admissions to Wright s friends. This falls far short of clear and convincing evidence. At first blush it may seem anomalous to find that Wright is actually innocent for purposes of an exception to the procedural bars of Rule 61 but that he is not actually innocent for purposes of a stand alone actual innocence claim. The explanation of course is that different standards of proof are involved. The procedural exception requires proof only to the level of more likely than not whereas the stand alone claim requires proof that rises to the level of clear and convincing. Indeed, in 62 Hose v. Bell, 80 the Supreme Court found that the prisoner had provided sufficient proof to avail himself of the actual innocence procedural bypass but did not provide sufficient proof to establish a stand alone actual innocence claim. 81 3. Defendant s statement was involuntary. Wright claims that his confession was involuntary. A necessary element of Wright s involuntariness claim is that the police were guilty of coercion or other overreaching when they obtained his confession. The trial judge previously ruled that there was no evidence that the police coerced Wright into making a confession. Therefore, his current claim is procedurally barred. Wright s argument largely focuses on his mental status and heroin intoxication, and at one time Defendant s state of mind was indeed the focus of a voluntariness determination. In Townsend v. Sain 82 a defendant who was ill was given a drug which, unknown to the questioning police, contained the properties of truth serum. The Supreme Court found that the defendant s ensuing confession should have been suppressed, holding that [a]ny questioning by police officers 80 81 82 547 U.S. 518 (2006). See id. at 555. 372 U.S. 293 (1963). 63 which in fact produces a confession which is not the product of free intellect renders that question inadmissible. 83 In the current iteration of this argument, Defendant relies extensively on the impressive array of evidence he has developed concerning his intellectual capacity, his susceptibility to suggestion, the effects of long-term heroin use on his brain, the likelihood he was going through withdrawal while making the statement and the effects of withdrawal on a heroin addict. If Townsend were still the standard, the court would have little trouble in finding that Wright s confession was not voluntary. Twenty-three years after Townsend, however, the standard changed. In 1986 the Supreme Court again addressed the voluntariness issue in Colorado v. Connelly, 84 a case in which a defendant, who suffered from psychosis which interfered with his ability to make free and rational decisions, volunteered a statement. The Connolly court held that the constitution did not require the exclusion of that statement. It reasoned that the voluntariness requirement in state criminal proceedings is rooted in the Due Process clause of the Fourteenth Amendment, which applies only when state action is involved. The Court held that the state action requirement is satisfied in this context only by a showing of police overreaching during the interrogation. According to the Connelley Court, absent the crucial element of police overreaching . . . there is simply no basis for concluding that any state actor has 83 84 Id. at 308. 479 U.S. 157 (1986). 64 deprived a criminal defendant of due process. 85 Wright must therefore not only show that he lacked the mental capacity to make a voluntary statement, but also that his statement was the product of police coercion. The police-overreaching issue has already been decided adversely to Wright. In an October 31, 1991, order denying a motion to suppress, the trial judge found that there was no evidence of coercion during Wright s interrogation. There is no evidence of police coercion related to the Defendant s confession. At the suppression hearing, the officers involved testified that they were unaware of the Defendant s intoxicated state. * * * Although the Defendant was 18 years old at the time of his arrest and had an eighth grade education, there was testimony in the suppression hearing that the Defendant had been arrested previously and had been informed of his rights on those occasions. The fact that the Defendant had barely slept the night before his arrest does not indicate police coercion, as the police had not forced him to stay up all night, and there is no evidence that the Defendant asked to be allowed to sleep before resuming questioning. The Defendant s assertions that the lengthy interrogation caused his will to be overborne are likewise without merit. The facts of this case do not approach the extreme circumstances in which statements have been held inadmissible due to the overbearing influence of a lengthy interrogation. ¦ Although the interrogation was lengthy, there were intermittent breaks and the Defendant was brought a submarine sandwich and two sodas during questioning. Rule 61 (i)(4) provides that any ground for relief that was formerly adjudicated . . . is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice. In the present application Wright 85 Id. at 163-64. 65 argues that there is evidence of police overreaching. In an appropriate case, an intervening change in the law may warrant reconsideration under the interest of justice standard, 86 but here Wright s argument is largely a rehash of evidence known to him at the time of his suppression motion. Given the purpose of the procedural bars as discussed earlier in this opinion, the court is unwilling to stretch that exception to include arguments based upon evidence previously available to Defendant. The court therefore finds that the interests of justice do not require it to reconsider Wright s claim. Nor does the miscarriage of justice exception found in Rule 61(i)(5) save Wright s argument from the procedural bar because that exception is expressly limited to the bars found in Rule 61(i)(1)-(3) and therefore does not extend to claims such as this which are barred by Rule 61(i)(4). Wright s attempt to re-litigate this court s earlier finding that there was no police overreaching is procedurally barred. As a result, he cannot establish a necessary element to his voluntariness argument and that argument must therefore be rejected. 86 Flamer v. State, 585 A.2d 736, 746 (1990) ( In order to invoke the interest of justice provision of Rule 61(i)(4) to obtain relitigation of a previously resolved claim a movant must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him. ) (citing Davis v. United States, 417 U.S. 333, 342 (1974)). 66 4. All of Wright s prior post conviction counsel rendered ineffective assistance of counsel. Wright contends that the counsel who represented him in previous Rule 61 motions were ineffective. In support of his argument, Wright submitted affidavits of Thomas Foley, Esquire and Kevin O Connell, Esquire, his prison Rule 61 counsel. Mr. Foley concedes in his affidavit that: ¢ In preparation for filing their 1997 Rule 61, they did not conduct any extra record investigation; ¢ they made no effort to interview prosecution witnesses; ¢ they did not attempt to investigate Mr. Wright s claim of innocence; ¢ they were lacking in the resources, expertise and time to interview witnesses who testified at trial and develop new leads; ¢ they failed to review the court files of Mr. Jamison and Mr. Curtis; ¢ when counsel waived the issue of ineffective assistance at the 1995 penalty phase, they did so without first conducting any investigation whatsoever into potential penalty phase witnesses; ¢ counsel presumed, based upon reputation, that prior counsel had provided adequate representation; ¢ they failed to gather any records whatsoever pertaining to Petitioner. 67 Mr. O Connell states that his relationship with Wright s counsel at his second penalty hearing (Joseph Bernstein, Esquire) deterred him from arguing that Mr. Bernstein was ineffective: All the lawyers in the conflict program relied on one another for assistance. This fostered an atmosphere where we were hesitant to challenge the effectiveness of our colleagues. Oftentimes, we were called upon to bring claims of ineffective assistance of counsel against lawyers who, at the same time, served as our co-counsel in other capital trials, appeals, and post-conviction proceedings. This made it awkward for me to investigate and present claims that my colleagues at the bar were constitutionally deficient. In this case in particular, I did not research of investigate any claims with regard to Mr. Bernstein s handling of the case because I looked to him regularly for advice. I was uncomfortable second-guessing his performance in this case. Although the court would have considered the factual averments in the Foley and O Connell affidavits, it would attach no weight whatever to their contention that they did not provide effective assistance to Wright. Whether they provided effective assistance is a legal conclusion which is to be drawn by the court, not Messrs. Foley and O Connell. It is unnecessary for the court to determine whether these lawyers provided effective assistance to Wright because he had no underlying constitutional right to counsel in his motions for post conviction relief. In Pennsylvania v. Finley 87 the United States Supreme Court quickly disposed of the argument that the constitution provided a right to counsel beyond a direct appeal from the defendant s conviction. We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their 87 481 U.S. 551 (1987). 68 convictions, and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals. We think that since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process. 88 Because he had no right to counsel in his post conviction applications, Wright s ineffective assistance claim, even if true, does not entitle him to any relief. 89 5. Counsel was ineffective in Defendant s Second Penalty Hearing. In his Rule 61 motion Wright argues that his counsel at his second penalty hearing rendered ineffective assistance. He contends that his counsel failed to interview certain family members and failed to discover information about his childhood which might have persuaded the court to spare his life. In support of his contention he cites certain A.B.A. Guidelines, but provides no information as to when those guidelines were promulgated or whether they were in existence at the time of his second hearing. At the outset the court notes that the A.B.A. Guidelines are not 88 Id. at 553 (citations omitted). Watson v. State, 2009 WL 2006883, at *2 (Del. July 13, 2009) ( Because there is no constitutional right to counsel in postconviction proceedings, Watson's claim of ineffective assistance of counsel is not viable ). Wright also implicitly suggests that the court should be lenient when applying procedural bars because he was relying on counsel to timely raise claims in his previous applications for post conviction relief. The court declines to do so because it is unwilling to differentiate between defendants who could afford counsel (or had counsel appointed for them) and those who had no post conviction counsel. 89 69 the Holy Grail of effective assistance claims. As Justice Alito has observed: I join the Court's per curiam opinion but emphasize my understanding that the opinion in no way suggests that the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney's performance meets the standard required by the Sixth Amendment. The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership. The views of the association's members, not to mention the views of the members of the advisory committee that formulated the 2003 Guidelines, do not necessarily reflect the views of the American bar as a whole. It is the responsibility of the courts to determine the nature of the work that a defense attorney must do in a capital case in order to meet the obligations imposed by the Constitution, and I see no reason why the ABA Guidelines should be given a privileged position in making that determination. 90 Further, the record is devoid of any evidence showing when the A.B.A. Guidelines relied upon by Wright were promulgated. Restatements of professional standards, we have recognized, can be useful as guides to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place. 91 Defendant failed to develop any factual basis upon which the court could decide whether his counsel s assistance was ineffective. He submitted an affidavit from one of his previous counsel, Joseph Bernstein, Esquire, but that affidavit dealt exclusively with issues arising 90 91 Bobby v. Van Hook, __ U.S. ___, 130 S.Ct. 13, 20 (2009)(Alito, J. concurring). Bobby v. Van Hook, ___ U.S. ___, 130 S.Ct. 13, 16 (2009). 70 during the guilt phase. At the instant Rule 61 hearing Defendant did not question Mr. Bernstein about his preparation for the penalty hearing. Indeed, when the State cross-examined Mr. Bernstein about the penalty hearing, Defendant objected on the basis of relevance and it exceeded the scope of direct. Wright did not present any affidavit from his other counsel at the second penalty hearing, Cheryl Rush-Milstead, nor did she testify at the Rule 61 hearing. Finally, Defendant provided no evidence as to what was the standard expected of attorneys conducting a penalty hearing in 1995. In short, the court is left without a record as to what Wright s attorneys did, or did not, do in preparation for the penalty hearing. Likewise Defendant did not present any evidence which the court could use to measure the performance of those attorneys. The court therefore finds that this argument has been abandoned. 6. Wright s claim that the jury should have been instructed that the aggravating factors must outweigh the mitigating factors beyond a reasonable doubt. Citing the United States Supreme Court s decision in Ring v. Arizona, 92 Wright contends that the jury should have been instructed that it must find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances before it can recommend the death penalty. Wright reads Ring much too broadly. In 92 536 U.S. 584 (2002). 71 that case the Supreme Court held that the reasonable doubt standard applied to the jury s finding of aggravating circumstances nothing was said about weighing of aggravating and mitigating circumstances. 93 In his concurring opinion Justice Scalia described the limited nature of Ring s holding: today's judgment has nothing to do with jury sentencing. What today's decision says is that the jury must find the existence of the fact that an aggravating factor existed. 94 Decisions after Ring have repeatedly rejected Wright s interpretation of it and have held that the Constitution does not require a jury to find beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors. 95 All of the above being said, even if Ring required that a jury find beyond a reasonable doubt that the aggravating factors outweighed the mitigating factors, it would be of no help to Wright. Ring was decided in 2002, some 20 years after Wright s trial. The United States Supreme Court has held that Ring is not retroactive, 96 and thus has no applicability to Wright s case, whatever that applicability might otherwise have been. 93 Id. at 609. 536 US at 612 (emphasis in original). 95 People v. Gonzales, 256 P.3d 543 (Cal. 2011); People v. Banks, 934 N.E.2d 435 (Ill. 2010); Commonwealth v. Rooney, 866 A.2d 351, 360 (Pa. 2005); Grandison v. State, 889 A.2d 366, 383 (Md. 2005) (referring to our repeated determinations that . . . Ring [does] not require that a jury must find that aggravating factors must outweigh mitigating factors beyond a reasonable doubt. ). 96 Schiro v. Summerlin, 542 U.S. 348 (2004). 94 72 7. Defendant s conviction must be vacated because of a Brady violation. The court first looks to whether Defendant s argument is procedurally barred. The court has previously held that Wright may present this claim because of the actual innocence exception adopted by the court. Because of the significance of this claim, the court will also consider whether Rule 61(i)(5), without the actual innocence exception, would permit Wright to present this argument. Defendant s argument is nominally barred because it was not presented within three years 97 after his conviction became final and because it was not presented at trial or during his direct appeal. 98 However, Rule 61 provides an exception to its procedural bars for a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity of the proceeding leading to the judgment of conviction. 99 Wright has alleged a colorable claim that the State committed a Brady violation. The question then becomes whether the evidence suppressed by the State undermined the fundamental legality, reliability, or integrity of the proceedings leading to his conviction. The constitutional due process rights protected under Brady are in place to ensure fairness. A Brady violation undermines the fundamental legality, 97 The rule in effect at the time Wright s conviction became final allowed three years for the filing of motions for post conviction relief. The rule was later changed and now allows one year. 98 Superior Court Civil Rule 61 (i)(1), (2). 99 Rule 61(i)(5). 73 reliability, and integrity of the underlying proceeding because in order to find a violation the court must find the suppressed evidence was material to the outcome. 100 As such, even if this court had not adopted the actual innocence procedural bypass, Defendant s Brady violation claims are not procedurally barred. The United States Supreme Court has explained the obligation for the government to turn over favorable evidence to the defense in Brady v. Maryland 101 and its progeny. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. 102 Brady evidence levels the playing field and helps to ensure fair trials in our justice system. Suppression of favorable evidence by the State violates the due process clause of the Fourteenth Amendment to the United States Constitution where the evidence is material to guilt. 103 The court performs a three prong analysis for purposes of the Brady violation. A Brady violation requires: 1. exculpatory or impeaching evidence exists that is favorable to Defendant; 2. that evidence is suppressed by the State; and 3. Defendant is prejudiced by 100 See Kyles v. Whitley, 514 U.S. 419, 454 (1995); United States v. Bagley, 473 U.S. 667, 678 (1985) ( [A] constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial. ). 101 373 U.S. 83 (1963). 102 Brady, 373 U.S. at 87. 103 See id. 74 the suppression. 104 If each of these prongs is met, a Brady violation has occurred and the verdict must be vacated. a. Evidence Samuels relating to jailhouse informant Gerald Gerald Samuels, one of Wright s fellow prisoners, was a surprise witness at the guilt phase of Wright s trial. During the course of the trial, the State s investigators learned that Samuels would be willing to incriminate Wright. Without prior notice to Defendant, Samuels was brought to the trial and testified that Wright admitted to him in jail that he (Wright) murdered Mr. Seifert. The cross-examination of Samuels was largely an effort to adduce evidence that Samuels expected or was promised lenient treatment in his own criminal matters in exchange for his testimony. Samuels denied before the jury that there was any promise made to him in exchange for his testimony. Before considering the evidence relating to Mr. Samuels trial testimony, the court will address an issue which arose during the evidentiary hearing on this motion. During that hearing the State advised the court it would prosecute Mr. Samuels for perjury if he testified at the hearing and recanted his trial testimony. The State urged the court to appoint counsel for Mr. Samuels before he testified. It was no mystery to the court or anyone else at the hearing that the end result of appointment of counsel for Mr. Samuels would be his assertion of his 104 Starling v. State, 882 A.2d 747, 756 (Del. 2005) (citations omitted). 75 Fifth Amendment right not to incriminate himself. Nonetheless, the court appointed counsel for Mr. Samuels thinking it did not want to sacrifice his constitutional rights to protect those of Mr. Wright. As expected, the now represented Mr. Samuels exercised his Fifth Amendment right to remain silent. In retrospect, the court believes it should not have appointed counsel for Mr. Samuels because it did not have the power to do so. As a general rule, this court may appoint criminal defense counsel only for those indigents who have been charged with a crime. That was not the case here. Even though Samuels declined to testify, however, the court will consider his affidavit. 105 In March 2009, Wright s counsel obtained an affidavit from Samuels in which he recanted in part his testimony that he had not been promised anything before he testified. In that affidavit, Samuels affirmed: It was my understanding, after talking with my attorney and Mr. Ferris Wharton, that I would be getting a sentence reduction or be sent to work release in exchange for my testimony. While there were no concrete, written promises it was clearly implied I would be getting these benefits. The U.S. Attorney General and Mr. Favata kept telling me that there were no guarantees, but there [sic] were clearly making an unspoken promise . . . My attorney, Mr. Favatta [sic], specifically and repeatedly advised me not to make reference to any deals while on the stand. That is why I repeatedly denied that I had been offered anything in exchange for my testimony. 106 105 106 Crim. Rule 61(g)(2) ( Affidavits may be submitted and considered as part of the record. ). Docket Item 367, Ex. 15. 76 Wright seeks to buttress his argument by pointing to a pro se motion for reduction of sentence filed by Samuels after Wright s trial in which Samuels alleges that an agreement was made with the prosecutor . . . my attorney . . . and myself. 107 Wright now argues that the State failed to provide him with Brady material in connection with Samuels testimony because it failed to disclose the alleged agreement between Samuels and the State. 108 The court heard from the prosecutor, Ferris Wharton, Esquire, and Samuels attorney, David Favata, Esquire, both of whom testified forcefully that there were never any promises of favors to Samuels. Samuels affidavit submitted by Defendant confirms this. In that affidavit, Mr. Samuels stated there were no concrete, written promises and that the Attorney General and Mr. Favata kept telling me that there was no guarantees. 109 107 Id. at Ex. 16. The State did not provide Wright with Samuels criminal record. It argued that it was not required to do so because that information was available to Wright s counsel through the Prothonotary s Office. Under the circumstances of this trial, that argument is disingenuous. Wright was represented by a single attorney, Mr. Willard, who had no assistance at trial. It is unreasonable to expect that during the course of trial Mr. Willard could have obtained Mr. Samuels criminal record from the clerk s office. Similarly, the State did not turn over evidence that on other occasions Mr. Samuels co-operated with a prosecutor. Again it is not reasonable to believe Mr. Willard could have ferreted out this information in time for effective cross examination of Samuels. The State s failure to voluntarily provide this information in a timely fashion to Wright is regrettable, if not an outright Brady violation. But even though Mr. Willard could not have been expected to find this information during the course of trial, the information was available to him through public sources immediately after trial. It is far too late to raise these issues now, and they are procedurally barred. The miscarriage of justice exception to the procedural bars does not help Wright. The court does not believe that the fundamental fairness of the trial was drawn into question by the absence of information about Samuels conviction. The jury was well ware from the testimony that Samuels was serving a prison sentence. 109 D.I. 367, Ex. 15. 108 77 It is settled that the federal constitution requires the State to turn over to the defendant evidence which can be used to impeach the State s witnesses. The failure to do so can call into question the very fairness of the defendant s trial. Because the right to cross-examination is fundamental to a fair trial, a new trial will be ordered when the State fails to provide the defendant with material evidence that is favorable to the accused. Impeachment evidence . . . falls within the Brady rule. Such evidence is evidence favorable to an accused, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal. 110 The court would have little or no difficulty in ordering a new trial for Defendant if there was an agreement between the State and Samuels. The court finds as fact, however, that there was no express agreement nor was there a wink and a nod agreement, therefore a Brady violation did not occur here. Samuels likely had a unilateral expectation of receiving some benefit from his testimony. But whatever hopes he may have harbored, those hopes were not evidence within the possession of the State and thus could not have been suppressed by the State. b. Evidence relating to an attempted robbery at Brandywine Village Brandywine Village Liquors is located in the City of Wilmington roughly a mile and a half from the HiWay Inn. Approximately 30 to 40 minutes before Philip Seifert was murdered, two young black males 110 Atkinson v. State, 778 A.2d 1058, 1062 (Del. 2001) (internal quotation marks omitted). 78 unsuccessfully attempted to rob the Brandywine Village store. The police ruled out the possibility that Wright and Dixon were involved in the attempted hold-up at Brandywine Village. There is, however, a plausible argument that the unsuccessful perpetrators at Brandywine Village struck at a second target not long thereafter the HiWay Inn. Information relating to the Brandywine Village crime therefore raises a question whether the Brandywine Village perpetrators not Wright and Dixon were the perpetrators at the HiWay Inn. Yet the State never turned this information over to Wright s counsel. It is important to note at the outset that the police ruled out Wright as a perpetrator of the Brandywine Village crime. Detective (now Captain) William Browne headed the Wilmington Police Department s investigation into the Brandywine Village incident. Detective Browne interviewed Edward Baxter, the clerk at Brandywine Village. Unlike George Hummel and Debra Milner at the HiWay Inn, Mr. Baxter had an opportunity to observe the perpetrators faces, and Detective Brown obtained a description from Mr. Baxter. Detective Browne later observed Wright during his interrogation and quickly concluded he did not match the description of the Brandywine Village perpetrators given to him by Mr. Baxter. This alone would have allowed the jury in Wright s trial to conclude he was not involved at Brandywine Village. But there is additional evidence which supports this notion. Mr. Baxter was shown a photo array, and identified one of the persons in that array as resembling 79 the man with the gun at Brandywine Village. Understandably, most of the records of the Wilmington Police Department s investigation, including the photographs shown to Mr. Baxter, are no longer available. Nonetheless, the court can surmise that the photograph picked out by Mr. Baxter was not that of Wright or Dixon. Otherwise it is virtually certain the State would have sought to introduce that evidence in Wright s trial. The evidence that Wright and Dixon were not the perpetrators at Brandywine Village is made relevant by evidence suggesting that the Brandywine Village perpetrators could have also committed the crimes at the HiWay Inn. As noted, Brandywine Village and the HiWay Inn are relatively close to one another and could have easily been reached in the 30 to 40 minutes between the crimes. The height differential of the suspects as described by Mr. Baxter is virtually the same as that described by Mr. Hummel at the HiWay Inn. According to Mr. Baxter, the perpetrators at Brandywine Village were two black males, one approximately 23 years old, 5 10 tall weighing 170 pounds, the other approximately 22 years old, 5 8 tall weighing 160 pounds. According to the HiWay Inn Pass On, which was developed from Mr. Hummel s statement, one of the suspects was described as a black male in his midtwenties, approximately 6 feet tall and weighing 170 pounds. The other was a black male, also in his mid-twenties, approximately 5 8 to 5 10 and weighing 160 pounds. 80 There is at least one other similarity which might link the Brandywine Village perpetrators to the HiWay Inn crimes. It should be recalled that Debra Milner (the barmaid at the HiWay Inn) told police that prior to the crime a black man wearing a red plaid flannel shirt came into the tavern and apparently surveyed the scene. (After viewing photos Ms. Milner denied that either Wright or Dixon resembled that man.) No red shirt was ever found at Wright s or Dixon s home. But according to a report prepared by the Wilmington Police Department, Mr. Baxter described one of the Brandywine Village perpetrators as wearing a red coat , suggesting of course that it was one of the Brandywine Village perpetrators, not Wright or Dixon, who cased the HiWay Inn. Taken as a whole evidence of the Brandywine Village robbery would have allowed Wright to argue that the two perpetrators of the Brandywine Village crime, which did not involve him, also committed the murder-robbery at the HiWay Inn. This evidence is therefore exculpatory. The next prong is whether the evidence was suppressed by the State. The State argues that the defense had to make a specific request for this information and that it is unreasonable to expect prosecutors to search unrelated case files for Brady evidence. 111 The State s assertion that the defense had to making a specific request to the State for this evidence is incorrect. The Agurs 112 factors upon which the State appears 111 See State s Answering Brief In Opposition To Defendant s Motion For Post-Conviction Relief, 27 (citing United States v. Joseph, 996 F.2d 36 (3rd Cir. 1993)). 112 See United States v. Augrs, 427 U.S. 97 (1976). 81 to rely differentiate standards based on the type of evidence requested by the defense, but that distinction is no longer good law. 113 The Court relied on and reformulated the Agurs standard for the materiality of undisclosed evidence in two subsequent cases out of the Brady context. 114 Finally, in Kyles the court clarified that the reasonable probability standard applied in each situation under Brady analysis. 115 The State further contends that the prosecutors in Wright s trial did not know about the Brandywine Village incident and, according to the State, the prosecutors could not have been expected to comb files of other investigations looking for evidence to exculpate Wright. The court agrees that the prosecutors were unaware of the Brandywine Village investigation and of the meeting between Detective Browne and Detective Mayfield because Detective Mayfield did not tell them. 116 But that does not end the inquiry. The State is not free of its obligation to turn over exculpatory evidence simply because it is known only to an investigating police officer. According to the United States Supreme Court, the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government s behalf in the case, 113 See Bagley, 473 U.S. at 682 (opinion of Blackmum, J. embracing the Strickland reasonable probability standard for all situations); Kyles, 514 U.S. at 433 (embracing the Bagley rule in the majority opinion). 114 Bagley, 473 U.S. at 681; see United States v. Valenzuela-Bernal, 458 U.S. 858, 874 (1982); Strickland v. Washington, 466 U.S. 668, 694 (1984). 115 Kyles, 514 U.S. at 433. 116 Detective Browne had no obligation to tell the prosecutors because the Wilmington Police were not working on the Seifert murder. 82 including the police. 117 The court finds, therefore, that the State was obligated to turn over evidence of the Brandywine Village crime to Wright s counsel. Having found that the evidence was exculpatory and was suppressed, the court must next determine whether Wright was prejudiced by its suppression. Suppression of material evidence requires vacation of a conviction when there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. 118 A reasonable probability of a different result is shown when the government s evidentiary suppression undermines confidence in the outcome of the trial. 119 In other words, the constitution cannot tolerate a conviction obtained by the state when the evidence suppressed could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. 120 The question does not depend on the sufficiency of the evidence. 121 The court has no difficulty in finding that the State s suppression of the Brandywine Village evidence prejudiced Wright. As discussed elsewhere, despite the presence of a confession, the case against Wright was not a particularly strong one. There are serious questions about the 117 Kyles, 514 U.S. at 437; see also Youngblood v. West Virginia, 547 U.S. 867, 869 (2006). Kyles, 514 U.S. at 433 (quoting Bagley, 473 U.S. at 682 (opinion of Blackmun, J.); 473 U.S. at 685 (White, J., concurring in part and concurring in judgment)). 119 Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678). 120 Kyles, 514 U.S. at 435. 121 See id. at 435 n. 8. 118 83 reliability of his confession. Aside from that confession and the dubious testimony of Mr. Samuels about Mr. Wright s purported jailhouse confession, there is absolutely no evidence linking Wright to this horrific crime. There was no forensic evidence no fingerprints, no shoe prints, no fibers placing Wright at the scene. The murder weapon, shell casings and the get-away car were never recovered and there are no eyewitnesses able to identify Wright. Taken altogether the court has no confidence in the outcome of the trial. The court finds, therefore, that the State s suppression of the Brandywine Village evidence is of such constitutional magnitude that Wright s convictions and ensuing death penalty must be vacated. 8. Defendant s statement was obtained in violation of Miranda v. Arizona because the Miranda warnings were defective. Defendant contends that the Miranda warnings given to him were defective because they misled him about his right to assistance of counsel. This argument has never been previously presented in the long history of this case. Indeed the court itself raised the issue for the first time during the Rule 61 hearing. The court has previously held that Wright may present this claim because of the actual innocence exception adopted by the court. As with the Brady violation, the court will consider whether Rule 61(i)(5), without the actual innocence exception, would permit Wright to present this argument. The answer here is not difficult. 84 Wright has alleged a colorable claim that the Miranda warnings given to him were defective. The question then becomes whether the allegedly defective warnings undermined the fundamental legality, reliability, or integrity of the proceedings leading to his conviction. Both the 5th Amendment right against self-incrimination and the 6th Amendment right to counsel give rise to the warnings required by Miranda. A failure to adequately advise a suspect of his right to counsel undermines the fundamental legality, reliability, and integrity of the underlying proceeding. The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process. 122 The court finds therefore that Wright s argument, if valid, raises serious questions about the fairness and integrity of his conviction. 123 Consequently his argument is not procedurally barred. a. The purpose of the Miranda warnings What are commonly referred to as the Miranda rights are actually three distinct rights. Suspects have the right to remain silent, the right to an attorney, and the right to an appointed attorney if they can not afford an attorney. 124 The Miranda Court held that an individual held 122 Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). See Johnson v. Zerbst, 304 U.S. 458, 463 (1938) (The assistance of counsel is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. * * * The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not still be done. ) (citing Palko v. Connecticut, 203 U.S. 319, 325 (1937)). 124 See Miranda v. Arizona, 384 U.S. 436, 444 (1966). 123 85 for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation. 125 The individual s financial situation does not affect the person s rights. 126 The Court took special care to emphasize the importance of ensuring indigents understood that they have a right to counsel: In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent the person most often subjected to interrogation the knowledge that he too has right to have counsel 127 present. This right to appointed counsel that the Supreme Court explains is essential and it was not adequately explained to Defendant. b. The administration of Miranda warnings to Wright The State argues that Wright was administered his Miranda warnings on three separate occasions during his interrogation: first by Wilmington Police Detective Merrill; later by Wilmington Police Detective Moser; and finally by State Police Detective Mayfield, the CIO. The court, 125 126 127 Id. at 471 (emphasis added). Id. at 472. Id. at 473 (citations omitted) (emphasis added). 86 however, finds as fact that Detective Moser did not administer Miranda rights to Wright. Detective Merrill began his interrogation of Wright at roughly 9 a.m. and questioned him about the Emil Watson shooting. At no time during the Merrill interrogation was any mention made of the HiWay Inn murder. Detective Merrill testified that he administered the Miranda warnings to Wright before the interrogation began. Unfortunately, even though Wright was being interrogated about a shooting (albeit a nonfatal one) no recording of any sort was made of the interrogation. The absence of any recording is made even more peculiar by the fact that from the outset of the interrogation this was a murder investigation. As noted previously, Detective Mayfield was present when Wright was arrested and his home searched even though neither warrant mentioned the HiWay Inn killing. Additionally Detective Mayfield listened to Detective Moser s of Wright and conferred with Detective Moser during that interview. The court is further puzzled by the fact that, even though the interrogation was being conducted in a controlled environment, Detective Mayfield did not obtain a written waiver of the Miranda rights in this murder case, even though it was apparently the practice at the time to do so. 128 More than ten years before Detective Mayfield s interrogation of Wright the Delaware State Police were obtaining written 128 Detective Moser testified at the Rule 61 hearing that he thought he obtained a signed waiver from Wright. None was ever produced. 87 acknowledgements of the Miranda warnings signed by the suspect. 129 In short, there is no record as to the precise nature of the warnings given to Wright, nor is there any basis upon which to determine whether those warnings complied with Miranda. That determination, however, is not essential to the ultimate resolution of this case. 130 The next police officer to examine Wright was Wilmington Detective Robert Moser. At the hearing before the court on the instant Rule 61 motion, Detective Moser testified that he administered the Miranda warnings and obtained a signed waiver from Wright. He also testified at a suppression hearing prior to trial that he administered Miranda warnings to Wright. Detective Moser s testimony at trial, however, was quite different. During his direct examination, the State did not question him about any Miranda warnings. The absence of any such questioning is peculiar, because the Trial Judge had previously advised the parties that the jury would be allowed to consider the warnings given to Wright. On crossexamination, Wright s counsel asked Detective Moser about Miranda warnings and the detective denied administering those warnings to him. Detective Moser testified, He had already been Mirandized. During a colloquy at sidebar, the court denied Wright s request to be allowed to emphasize the absence of Miranda warnings with additional follow-up 129 See Deputy v. State, 500 A.2d 581, 586 (Del. 1985) (State Police obtained written waiver of murder suspect in 1979.). 130 The absence of a written waiver of the suspect s Miranda rights does not necessarily mean that the warnings given to the suspect were insufficient. North Carolina v. Butler, 441 U.S. 369 (1979). 88 questions: You have asked him, he s answered, and so I would suggest there s no appropriate further questioning. Notably on its redirect examination of Detective Moser, the State did not ask a single question relating to the presence or absence of Miranda warnings. 131 The court believes that his testimony at Wright s trial is likely to be the most accurate rendition interrogation. of what actually occurred during Wright s The obvious point is that his testimony at trial was far closer in time than his testimony at the instant Rule 61 hearing. Indeed, the police report he prepared at the time summarizing the interrogation contains no reference to Miranda warnings. Moreover, Detective Moser s current recollection that he obtained a signed written waiver from Wright is belied by the fact that the State never introduced it at trial nor did it produce the ostensibly signed waiver in conjunction with this motion. 132 Detective Mayfield administered the Miranda warnings to Wright at 7:40 p.m., approximately ten hours after they were administered by Detective Merrill. The warnings given by Detective Mayfield went as follows: And a Mr. Jermaine Wright. What I ll first do is I ll read your rights to you, okay? Basically, you have the right to remain silent. Anything that you say can and will be used against you in a court of law. You have the right, right now, at any time, to have an attorney present with you, if you so desire. 131 In its proposed finding of facts, the State refers the court to an opinion by the trial judge in this matter that Wright had received Miranda warnings on three occasions. State v. Wright, 1992 WL 207255 (Del. Super.). This opinion was issued prior to trial and, therefore, prior to Detective Moser s denial that he administered Miranda warnings to Wright. 132 The court s findings are not an attack on Detective Moser s credibility. To the contrary, the court believes he was honest in his efforts to recall the events of March 14, 1991. It is no criticism of him that time may have eroded his memory of those long-ago events. 89 Can t afford to hire one, if the state feels that you re diligent and needs one, they ll appoint one for you. You also have the right at any time while we re talking not to answer. Okay? And at the same time during the interview here, I will advise you, I am a, ah, member of the Delaware State Police. And I am investigating the Highway Inn, the robbery/homicide there. Okay? Do you understand what I ve asked you today? Okay. Do you also understand that what we re going to be taking is a formal statement and that this statement s going to be video taped? Okay. Are you willing to give a statement in regards to this incident? Say yes or no. 133 In sum, Detective Mayfield told Wright he could have a court appointed lawyer only if the State feels you . . . needs one. 134 There was considerable discussion in the parties submissions about whether Detective Mayfield used the word diligent or indigent. It makes little difference. In its post-hearing submission, the State argues that Detective Mayfield used the work indigent where the transcript contains the word diligent. But at Wright s 1992 trial, the Detective Mayfield testified that the transcript (including the word diligent ) was accurate and at the Rule 61 hearing the State stipulated to the accuracy of the transcript. The court has also listened to the recording of the interrogation more than a dozen times and believes that the detective indeed used the word diligent when attempting to administer the Miranda warnings. Be that as it may, however, it does not matter which word the Detective Mayfield used diligent or indigent the warnings he administered were still defective. 133 134 Transcribed Statement, 1/30/91 at 1 (emphasis added). Id. 90 The court notes in passing that this is not the only time Detective Mayfield had difficulty correctly reciting the substance of the Miranda warnings. Before interrogating Lorinzo Dixon, again in a controlled setting, the detective gave the following warning: What I m gonna do first is read your rights to you. Okay? You have the right to remain silent. If you give up your right to remain silent, anything you say can and will be used against you in a court of law. You have the right at any time to request a lawyer, if, ah, if you can afford it. Or if you re, or if the court finds out that you re negligent for it. Okay? You also at any time have the right to answer any and all questions. Do you understand those rights? When these defective warnings were given is a mystery. Detective Mayfield was not an inexperienced rookie and was in a controlled atmosphere in which the Miranda warnings could have been read and a written copy given to the suspect to read. c. The police were required to re-administer Defendant s Miranda rights prior to his videotaped statement. The first issue to consider here is whether the Detective Mayfield was obligated to repeat (or refresh ) the Miranda warning when he began his interrogation of Wright at roughly 7:40 that evening. The proverbial seminal case in Delaware for determining whether Miranda warnings must be re administered is Ledda v. State, 135 wherein the Court held that the certain factors must be considered. Several factors must be considered when determining whether Miranda warnings, once given, must be readministered, including the time lapse since prior warnings, 135 564 A.2d 1125 (Del. 1989). 91 change of location, interruptions in interrogation, whether the same officer who gave the warning also interrogated, and significant differences of statements. 136 The court does not believe that the Ledda court intended any single factor to be more important than the others or that the issue was to be decided merely by a tally of the factors pro and con. Rather the court is obliged to consider the totality of the circumstances with these factors as a guideline. The totality of the factors here compel this court to find that the Detective Mayfield was obligated to administer the Miranda warnings to Wright before he began his interrogation. The time lapse between the first administration of the warnings and Detective Mayfield s attempt to administer the warnings was ten hours. During most of that period, Wright was kept in a harshly lit interrogation room with one arm handcuffed to fixture protruding from his seat (which was in turn affixed to the floor). There was no window nor was there a clock in the room, and thus Wright was deprived of any sense of the passage of time. There were some interruptions in the interrogation and, as the trial judge noted, Detective Moser brought Wright a couple of sodas and a submarine sandwich. 137 The Miranda warnings were given by a different officer and, over the course of the day, Wright was examined by three 136 Id. at 1130. Given that the police did not detect that Wright had heroin in his possession when he was booked, there is at least the possibility, if not a likelihood that he consumed some of the drug during the interruptions in the interrogation. There is no evidence to suggest that any of the police officers knew that Wright had heroin available to him and thus the court has not taken this circumstance into account in determining whether the police should have re-administered his Miranda rights. 137 92 different officers about three different crimes. The fact that the focus of the interrogations changed dramatically after Wright was first given his warnings is significant, but not dispositive, to the court. It was one thing for Wright to waive his Miranda rights when being questioned about a non-fatal shooting; it is quite another to waive them ten hours later when being questioned about a murder-robbery. Finally, although the court does not ascribe much significance to this, it notes that there was a change in venue from the interrogation room to the next door conference room. The foregoing Ledda factors suggest that the Miranda warnings should have been re-administered. There are additional reasons contributing to the conclusion that the Miranda warnings should have been refreshed before the video-taped interrogation. By all appearances Wright was intoxicated during Detective Mayfield s interrogation. The court does not expect police officers to be experts on drug intoxication nor did these officers have access to the information relied upon by Wright s experts in the Rule 61 hearing. But it would have been apparent to a layman, much less a trained police officer, that Wright was intoxicated. He appeared to be nodding off and yawning at various times during Detective Mayfield s interrogation. An incident during Detective Moser s interview should have set off alarm bells about Wright s mental state. As mentioned before, at one time during that interview Wright curled in a fetal position under the table, insisted on giving only written 93 answers and then ate the pieces of paper on which his answers appeared after Detective Moser read them. Perhaps no single factor discussed above would have required readministration of the Miranda warnings, but after considering the circumstances in their totality of the circumstances, including the Ledda factors and Wright s obviously impaired condition, the court finds that Detective Mayfield was obligated to re-administer the warnings to Wright before he began his interrogation. d. Even if the police were not required to re-administer the warnings, once they did so they could not give misleading warnings. Even if Detective Mayfield were not required to re-administer the Miranda warnings, once he decided to do so he was obligated to give them in a form which would not deceive Wright. Once the detectives decided to readminister the Miranda warnings they were obliged not to deceive the Defendant. 138 Here Detective Mayfield told Wright that he was entitled to representation by counsel if the state feels you re diligent and needs one. As discussed below, this warning would have deceived Wright, if not most defendants, into believing that his right to counsel during questioning was dependent upon the state determining he needs one. 138 United States v. Hicks, 631 F.Supp.2d 725, 742 (E.D.N.C. 2009). 94 e. Detective Mayfield s advisement of Defendant s rights did not comport with Miranda. It was not necessary for Detective Mayfield to administer the Miranda warnings exactly as they were written by the Supreme Court. From their very formulation courts have never required a recitation of the Miranda warnings which precisely tracks the Supreme Court s language in Miranda. The Miranda Court itself recognized that other formulations of the warnings can suffice. The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. 139 A decade and a half after Miranda the Supreme Court observed that no talismanic incantation [is] required to satisfy [Miranda s] strictures. 140 Still later the Court noted that [w]e have never insisted that Miranda warnings be given in the exact form described in that decision. 141 Although an exact form of Miranda rights is not necessary, a confusing or equivocal explanation of the rights can be constitutionally inadequate. In Connell v. United States 142 , the defendant received conflicting oral and written explanations of his Miranda rights. Police told the defendant, [i]f you cannot afford to pay for a lawyer, one may be 139 140 141 142 384 U.S. at 476 (emphasis added). California v. Prysock, 453 U.S. 355, 359 (1981) (per curiam). Duckworth v. Eagen, 492 U.S. 195, 202 (1989). 869 F.2d 1349, 1351 (9th cir. 1989). 95 appointed to represent you. 143 The may language did not clearly inform Connell that if he could not afford an attorney one would be appointed for him prior to questioning, if he so desired. 144 It gave the impression the appointment of a lawyer was left to the government s discretion. The conditional language was fatally flawed due to its misleading nature resulting in the reversal of Connell s conviction. 145 A conviction was reversed for similar reasons in United States v. Garcia. 146 Garcia received several versions of her Miranda rights that considered together were inconsistent. 147 At different points, she was told she had a right to counsel for questioning and that she had a right to appointed counsel at her first court appearance. 148 The warnings failed adequately to inform Garcia of her right to counsel before she said a word. The offer of counsel must be clarion and firm, not one of mere impressionism. 149 The Delaware Supreme Court has also reversed a conviction based in part on an inadequate recitation of the Miranda rights. 150 The police officer explained to the defendant: If you wish one (an attorney) we ve already talked to your mom about that and that s fine. 151 143 The Court Id. at 1350 (emphasis in original). Id. at 1353. 145 Id. at 1352-53. 146 United States v. Garcia, 431 F.2d 134 (9th Cir. 1970) (per curiam). 147 Id. at 134. 148 Id. 149 Id.(quoting Lathers v. United States, 396 F.2d 524, 535 (5th Cir. 1968) (citations omitted)). 150 See Smith v. State, 918 A.2d 1144 (Del. 2007) (noting that the Court also relied on the juvenile status and mental capacity of the defendant as part of a totality of the circumstances analysis). 151 Id. at 1150. 144 96 explained that the simplest meaning of that was Your mother took care of that for you. 152 The explanation of his rights suggested that his right to counsel was in his mother s hands, not his. Similarly, Wright was given the impression by Detective Mayfield that his right to counsel was in someone else s hands the State. Where as here the warnings mislead the defendant or detract from the rights provided by the constitution they cannot be excused on the theory, relied upon by the State, that Miranda does not require a verbatim recitation of the required warnings. Detective Mayfield did not adequately explain to Wright his rights. The most troubling part of the explanation of his rights is when the detective told Wright that he was entitled to representation by counsel, if you so desire. Can t afford to hire one, if the state feels you re diligent and needs one they ll appoint one for you. 153 This does not adequately explain to Defendant that he has a right to appointed counsel and that the decision is his alone. As the court explained earlier, it concluded from the audio recording that Detective Mayfield said diligent , but even if he said indigent as the State asserts, the right was not properly conveyed to Defendant. In addition to the statement being inherently confusing, it suggested the State is the decision maker in the appointment of counsel. This confusing and inaccurate statement did not convey the right to appointed counsel to Defendant. Defendant could 152 153 Id. January 30, 1991 statement transcript. 97 not have knowingly waived a right he did not understand that he had. 154 Accordingly, the statement should not have been admitted. 9. Defendant s Miranda waiver was not made knowingly or intelligently. On the basis of new evidence Defendant claims that he did not knowingly and intelligently. 155 Again, the court has previously held that Wright may present this claim because of the actual innocence exception adopted by the court. As with the Brady violation and the defective Miranda warnings, the court will consider whether Rule 61(i)(5), without the actual innocence exception, would permit Wright to present this argument. The analysis here is similar to the analysis of the defective Miranda warnings. Wright has alleged a colorable claim that his waiver was not made knowingly and intelligently. The question then becomes whether admitting the statement given unknowingly and unintelligently undermined the fundamental legality, reliability, or integrity of the proceedings leading to his conviction. The decision to waive Defendant s Miranda rights here was a decision to incriminate himself, something the 5th Amendment gives him a right not to do. The 5th Amendment is fundamental to our criminal justice system and the legality of 154 Miranda, 384 U.S. at 470-71 ( No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may be the person who must needs counsel. ). 155 To the extend that Defendant s claims are rehash of old evidence previously available to Defense, those claims are procedurally barred as explained in Part F(3). The court looks to the new evidence presented in evaluating this claim. 98 proceedings in it. 156 Consequently his argument is not procedurally barred. In order to knowingly and intelligently waive one s rights, a suspect must understand those rights. The United States Supreme Court has explained: [T]he waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. 157 The Delaware Supreme Court has set forth factors for the court to consider when examining the totality of the circumstances. They include the behavior of the interrogators, the conduct of the defendant, his age, his intellect, his experience, and all other pertinent factors. 158 Defendant offers expert testimony, described more fully above, to support his claim that his statement was given unintelligently and unknowingly. The state offered no evidence to rebut Defendant s experts and its cross examination of those experts does not cause the court to question their methodology or conclusions. Accordingly, the court accepts their testimony without reservation. surrounding Defendant s heroin addiction 156 The expert testimony and the presence of See Davis v. State, 809 A.2d 565, 572 (Del. 2002); Jackson v. State, 643 A.2d 1360, 1378-79 (Del. 1994). 157 Moran v. Burbine, 475 U.S. 412, 421 (1986) (citations omitted) (internal quotations omitted). 158 Traylor v. State, 458 A.2d 1170, 1176 (1983) (quoting Howard v. State, 458 A.2d 1180, 1183 (1983); Whalen v. State, 434 A.2d 1346, 1351 (Del. 1981)). 99 withdrawal symptoms during the interrogation supports a finding that Defendant did not intelligently and knowingly waiving his Miranda rights. Dr. Mash discussed how stress and the serious fear of withdrawal would have exacerbated Defendant s altered state inducing a fight or flight response because he was not using enough heroin to stave off withdrawal based on his tolerance. She concluded that Defendant did not have the capacity to know what he was saying, did not know what rights he was giving up, and did not understand the consequences of waiving Miranda when he was questioned. Dr. Maslansky agreed with Dr. Mash s testimony that Defendant would not have been able to give informed consent due to his verbal comprehension problems. concluded that Defendant did not knowingly, He also intelligently, and voluntarily waive his rights. Dr. Fulero further supports the claim. He opined that Wright likely had difficulty understanding the Miranda warnings given to him. He reasoned that Wright s verbal IQ of 62 would affect his ability to understand his rights and his ability to decide whether to make a statement. This IQ testing was performed in February 1994 and was not available for the suppression hearing. Dr. Fulero further opined that Defendant was susceptible to the yeah-saying and could have agreed to waiver his rights without understanding them. Indeed Dr. Fulero testified that he saw no verbal indication that Defendant understood his rights. 100 The totality of the circumstances indicate that Defendant did not knowingly and intelligently waive his rights. The use of the Reid technique and the thirteen hours of interrogation 159 coupled with Defendant s sleep deprivation reduced his ability to understand his rights. Defendant s intoxication and withdrawal, while not determinative 160 , further supports that the rights were not properly waived. As the expert testimony demonstrates, Defendant s lack of intellect supports that he did not understand his rights. Defendant was eighteen at the time of the interrogation, barely an adult. In considering the totality of the circumstances, Defendant was not in a condition to understand his rights and, therefore could not waive them knowingly and intelligently. 161 This violation also requires the vacation of Defendant s conviction. G. CONCLUSION It is not a coincidence that the very first sentence of this opinion was about the victim, Phillip Seifert. The court purposely concludes its opinion with another reference to him. Throughout these proceedings the court has not lost sight of the fact that an innocent man needlessly 159 The court is left to wonder what behavior occurred during the first ten hours of interrogation which were not recorded even though the capability existed. 160 Traylor, 458 A.2d at 1176 (Intoxication does not per se invalidate an otherwise proper waiver of rights. ) (citations omitted). 161 See Moran, 475 U.S. at 421. 101 died on January 14, 1991 at the hands of another human being. The court realizes, and much regrets, that its ruling today will cause anguish and frustration to Mr. Seifert s friends and loved ones. Nonetheless, the court stands as a guardian of the constitutional rights of every citizen, including those of the defendant. It may never shirk that duty no matter how much it may otherwise desire to avoid inflicting emotional pain on a victim s family. In the end, our courts must act to protect the constitutional rights of the citizens of this State, and that is what this court has done today. ________________________ John A. Parkins, Jr. 102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122

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