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Defendant was convicted of First Degree Murder, sentenced to death, and subsequently appealed from the denial of his motion for postconviction relief under Superior Court Rule 61. On appeal, defendant raised eight claims of error. The eighth claim was that the trial court erred by refusing to grant defendant's motion to issue a material witness warrant. The court held that because many of defendant's claims were procedurally barred and the balance lacked substantive merit, the court affirmed the judgment.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
No. 554, 2010
Court Below: Superior Court of
the State of Delaware, in and for
New Castle County
Cr. I.D. No. 0003016874
Submitted: August 24, 2011
Decided: October 25, 2011
Before STEELE, Chief Justice, HOLLAND, JACOBS and RIDGELY, Justices,
and NOBLE, Vice Chancellor,1 constituting the Court en Banc.
Upon Appeal from the Superior Court. AFFIRMED.
Jennifer-Kate Aaronson, Esquire, of Aaronson, Collins & Jennings, LLC,
Wilmington, Delaware; Joseph A. Gabay, Esquire (argued), of the Law Office of
Joseph A. Gabay, Wilmington, Delaware; for Appellant.
Timothy J. Donovan, Jr., Esquire, and Elizabeth R. McFarlan, Esquire
(argued), Department of Justice, Wilmington, Delaware; for Appellee.
Sitting by designation pursuant to Art. IV, § 12 of the Delaware Constitution and Supreme
Court Rules 2 and 4.
Milton Taylor (“Taylor”), the defendant-below, appeals from the denial, by
the Superior Court, of his motion for postconviction relief under Superior Court
Criminal Rule 61. Following a trial in March 2001, a jury convicted Taylor of
First Degree Murder. On July 6, 2001, he was sentenced to death. On appeal,
Taylor raises eight claims of error. Seven of these claim ineffective assistance of
counsel and related constitutional violations. The eighth claim is that the trial
court erred by refusing to grant Taylor’s motion to issue a material witness
warrant. Because many of Taylor’s claims are procedurally barred and the balance
lack substantive merit, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts are set forth in this Court’s opinion on direct appeal,2 and
in earlier and later Superior Court decisions.3 Those facts are summarized here
only as needed to illuminate the issues raised on this appeal.
On March 23, 2000, Taylor strangled Theresa Williams, his girlfriend, in her
apartment, knowing she was pregnant with another man’s child. Williams’ beaten
and bloodied body was found in the apartment, and the police then began searching
Taylor v. State, 822 A.2d 1052, 1054-55 (Del. 2003).
State v. Taylor, 2001 WL 1456688, at *2 (Del. Super. July 5, 2001); State v. Taylor, 2010 WL
3511272, at *2 (Del. Super. Aug. 6, 2010).
for Taylor.4 Two days later, after receiving a tip, the police arrested Taylor at a
pay phone on the corner of 9th and Madison Streets in Wilmington. After a search
of Taylor’s person incident to his arrest, the police discovered a folded piece of
paper in the front pocket of his sweatshirt. On that paper was written a confession
to Williams’ murder, which stated, in part, “Anyway God forgives murderers. So
me and [Williams] will be together again but for eternity this time!” After Taylor
was indicted for murder, his trial counsel moved to suppress the confession note.
The Superior Court denied that motion.
The trial court appointed two public defenders to represent Taylor.5 As the
trial judge later found, “[t]he defense quickly learned the depravity of the offense
and the gravity of their client’s predicament. They knew Taylor was guilty, and
his confession note was authentic and voluntary.” Still, Taylor’s trial counsel
retained a psycho-forensic evaluator “to lead Taylor’s mitigation evidence
Defense trial counsel also employed mental health experts, as well as
another investigator, all of whom explored Taylor’s personal background. After
evaluating Taylor, one of the defense experts, Dr. Alvin Turner, reported to
defense counsel that he found no basis for a mental illness defense. Neither did Dr.
Taylor was seen in the area of Williams’ apartment building on the day of the crime, leading to
his identification as a suspect.
In this Opinion the terms “counsel” and “counsel’s” refer to defense counsel collectively.
Carol Tavani, who opined that Taylor was competent to waive his right to offer
mitigation evidence. Later, the fruits of counsel’s investigation were compiled in a
mitigation notebook, which counsel presented to the Superior Court trial judge.
At trial, the jury, after being instructed on First and Second Degree Murder,
returned a unanimous verdict convicting Taylor of First Degree Murder. That
conviction led to the next stage—and the primary focus of this appeal—the penalty
On the first day of the penalty hearing, Taylor’s trial counsel told the court
that “Taylor has consistently maintained that if it came down to the decision
between life imprisonment . . . or the imposition of the death sentence, . . . the
latter decision would be more preferable to [Taylor]. . . . . Mr. Taylor was
presented with [a] . . . proposed mitigation factor list. . . . He reviewed each factor.
He does not wish to go forward on those mitigating circumstances.” Among those
mitigating factors were allegations of childhood abuse, which Taylor specifically
instructed his defense counsel not to present.
At that point, the Superior Court judge conducted a searching colloquy with
Taylor, during which Taylor acknowledged that he had reviewed the submitted
mitigation information and was waiving his right to offer it into evidence. During
the penalty hearing, defense counsel did, however, with Taylor’s permission call
the defendant’s mother and his aunt to testify.
Their testimony was limited
primarily to expressing their love for Taylor and “a few humanizing touches.”
The jury recommended the death penalty by a vote of 10 to 2, after having
found two aggravating factors—the victim’s pregnancy and Taylor’s prior
convictions of violent felonies.
The trial judge accepted the jury’s
recommendation and, after having made his own independent determination,
sentenced Taylor to death.
Taylor challenged his conviction and sentence on direct appeal to this Court.
At that stage he argued that the police seizure of the confession letter was an
unconstitutional search, that Delaware’s death penalty statute was unconstitutional,
and that his death sentence was disproportionate compared to the results in similar
cases. On April 30, 2003, this Court affirmed Taylor’s conviction and death
sentence.6 The United States Supreme Court later denied his petition for a writ of
His direct appeals exhausted, Taylor then filed a petition for postconviction
relief under Rule 61 of the Superior Court Criminal Rules. Taylor’s postconviction
claims, presented by new postconviction defense counsel, derived primarily from
events that occurred during the penalty phase.
Taylor v. State, 822 A.2d 1052 (Del. 2003).
Taylor v. Delaware, 540 U.S. 931 (2003).
Taylor claimed that his trial
counsel’s representation was ineffective.
Specifically trial counsel failed to
investigate adequately Taylor’s personal background, failed to present a mental
health defense or mitigation evidence, and failed to object at various critical stages
of the proceeding. Taylor’s new postconviction counsel also claimed that trial
counsel’s deficient performance deprived Taylor of his rights under the United
States Constitution and also (for certain claims) the Delaware Constitution.
A postconviction evidentiary hearing was held in late 2006 and early 2007.
At that stage, Taylor’s trial counsel and other witnesses testified. Taylor attempted
to call his mother as a witness, but she refused to testify. Taylor moved for a
material witness warrant to compel her testimony, but the Superior Court denied
that motion. Taylor also contests that ruling on this appeal.
Taylor’s current appeal rests critically upon the postconviction hearing
testimony of two newly retained expert defense witnesses, Drs. Edward Dougherty
and Jonathan Mack. Dr. Dougherty testified that after meeting with Taylor and
conducting a battery of psychological tests, he essentially agreed with the earlier
experts’ diagnosis that Taylor had an antisocial personality disorder. To that
diagnosis, however, Dr. Dougherty added two of his
deficit/hyperactivity disorder (“ADHD”) and borderline personality disorder. In
his opinion denying postconviction relief, the trial judge declined to credit Dr.
Dougherty’s conclusions. The court described Dr. Dougherty “as a partisan” who
based his opinion in reliance upon, and acceptance of, uncorroborated facts
communicated by Taylor.
Dr. Mack’s testimony described the results of numerous neuropsychological
tests he had performed on Taylor, as well as his separate diagnosis of “Personality
Change Due to Brain Damage.” Dr. Mack reported, based on Taylor’s statements
to him and upon confirmatory medical records, that Taylor had a history of head
injuries that caused Taylor to believe that the victim, Williams, was “cheating” on
him on the day of the murder.
Accordingly, Taylor acted “under extreme
emotional [distress] . . . [and his] ability to conform his behavior to the
requirements of the law, as well as to fully formulate the intent to commit murder,
were significantly compromised by his above diagnosed diseases of the mind and
brain, in conjunction with his extreme emotional arousal at the time, and his selfreported intoxication.” The trial judge accepted Dr. Mack’s finding of “mild”
brain damage, but found unclear “the extent to which the mild brain damage
accounts for Taylor’s antisocial personality. And, it is even less clear the extent, if
any, that the brain damage helps account for Taylor murdering Williams, or
anything relating to this case.”
In August 2010, following the evidentiary hearing, the Superior Court issued
its opinion and order denying Taylor’s motion for postconviction relief. 8 This
In this Court, Taylor reasserts many of the claims he raised during the
postconviction proceeding in the trial court. Additionally, Taylor challenges the
Superior Court’s denial of a material witness warrant to compel his mother’s
testimony. We review the Superior Court’s denial of a motion for postconviction
relief, and the denial of a material witness warrant, for abuse of discretion.9 To the
extent Taylor’s claims implicate issues of law, we review those claims de novo.10
I. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Taylor’s first set of claims are premised on the argument that his trial
counsel were ineffective because they failed to conduct an adequate investigation
into mitigating factors that should have been presented during the penalty phase.
As a consequence, Taylor contends, trial counsel also failed to develop an adequate
factual basis to show that Taylor lacked the capacity to waive his constitutional
right to present mitigating evidence. Relatedly, Taylor contends that his trial
State v. Taylor, 2010 WL 3511272 (Del. Super. Aug. 6, 2010).
Claudio v. State, 958 A.2d 846, 850 (Del. 2008); Coles v. State, 959 A.2d 18, 22 (Del. 2008).
Gattis v. State, 955 A.2d 1276, 1281 (Del. 2008).
counsel’s failure to investigate and present mental health evidence to support an
extreme emotional distress (“EED”) defense11 during the guilt phase constituted a
separate Sixth Amendment ineffective assistance violation.
Taylor’s second set of ineffective assistance claims rests on the premise that
his trial counsel’s failure to object on four separate occasions was unreasonable
and prejudicial. Specifically, Taylor claims that his counsel should have objected
to: (1) the admission of prejudicial evidence during the penalty hearing, (2) the
trial judge’s consideration of evidence that was not presented to the jury, (3) the
prosecutor’s improper statements made during summation, and (4) the trial court’s
anti-sympathy instruction to the jury. We first address these two sets of claims.
A. The Claims of Failure to Investigate
Taylor raises three separate claims that flow from trial counsel’s alleged
inadequate pretrial investigation into Taylor’s mental health and personal
background. 12 First, Taylor contends that his trial counsel was ineffective in
investigating and uncovering mitigating evidence to be presented during the
penalty phase of the proceeding. That investigatory failure, Taylor urges, also
11 Del. C. § 641.
Although Taylor failed to raise these challenges on direct appeal, claims of ineffective counsel
are generally not entertained by this Court at that stage. Claims of that kind are first considered
on the merits on appeal from the denial of postconviction relief. Sahin v. State, 7 A.3d 450, 451
(Del. 2010) (“Generally, we do not consider claims of ineffective assistance of counsel in a
direct appeal. The reason for that practice, in part, is to develop a record on that issue in a
Superior Court Rule 61 post-conviction proceeding.”).
rendered defense counsel’s representation ineffective due to their failure to present
an EED defense during the guilt phase.
The standard by which we review these claims is set forth in Strickland v.
Washington, 13 as most recently elaborated by this Court in Swan v. State. 14 In
Strickland, the United States Supreme Court promulgated a two-part test for
reviewing Sixth Amendment claims of ineffective counsel. First, the quality of
counsel’s representation must fall below an objective standard of reasonableness.
Second, the defendant must show a reasonable probability that counsel’s deficient
performance prejudiced the defense.15
Under Strickland’s first prong, “[j[udicial scrutiny of counsel’s performance
must be highly deferential.”16 “A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.”17 Accordingly, Taylor must:
“[I]dentify the acts or omissions of counsel that are alleged not to
have been the result of reasonable professional judgment. The court
466 U.S. 668 (1984).
___ A.3d ___ (Del. 2011), 2011 WL 3904610 (Del. Sept. 6, 2011).
Strickland, 466 U.S. at 694.
Id. at 689.
must then determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance.”18
Under Strickland’s second prong, “the question is whether there is a
reasonable probability that, absent the errors, the sentencer 19 —including an
appellate court, to the extent it independently reweighs the evidence—would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.”20 A court making this prejudice determination must “consider all
the relevant evidence that the [sentencing judge] would have had before [him] if
[counsel] had pursued a different path.”21 Taylor, not the State, has “the burden of
showing that the decision reached would reasonably likely have been different
absent the errors.” 22 “Our inquiry is therefore objective: what a reasonable
[sentencing judge] in these circumstances would have done when confronted with
Id. at 690.
In Delaware, the “sentencer” is the sentencing judge. 11 Del C. § 4209(d).
Strickland, 466 U.S. at 695.
Wong v. Belmontes, ___U.S.___, 130 S. Ct. 383, 386, 390 (2009) (“[T]he reviewing court
must consider all the evidence--the good and the bad--when evaluating prejudice.”) (citing
Strickland, 466 U.S. at 695-96, 700).
Strickland, 466 U.S. at 696.
Swan v. State, ___ A.3d ___ (Del. 2011), 2011 WL 3904610, at *23 (Del. Sept. 6, 2011).
To support his ineffective assistance claims, Taylor argues that trial defense
counsel should have interviewed other members of his family and associates,
obtained additional medical records, and reviewed certain court records in order to
present both an EED defense and an adequate mitigation case. Taylor relies on
three United States Supreme Court cases, Williams v. Taylor,24 Wiggins v. Smith25
and Rompilla v. Beard,26 and a Third Circuit Court of Appeals decision, Outten v.
Kearney. 27 In those four cases, the courts found counsel’s performance to be
constitutionally deficient. We find those decisions inapposite, however. In this
case, counsel’s performance far exceeded the substandard level of counsel’s
performance in the above cited decisions.
In Williams, defense counsel failed to conduct an investigation into the
defendant’s childhood records, based on counsel’s erroneous belief that state law
barred their access to those records.28 No such erroneous belief affected counsel’s
performance here. In Wiggins, the United States Supreme Court evaluated defense
trial counsel’s performance under “the professional standards that prevailed in
529 U.S. 362 (2000).
539 U.S. 510 (2003).
545 U.S. 374 (2005).
464 F.3d 401 (3d Cir. 2006).
529 U.S. at 395.
Maryland in 1989.”29 Here, Taylor neither identifies, nor attempts to apply, any
authoritative Delaware standard comparable to the Maryland standard at issue in
In Rompilla, defense counsel failed to review a critical prior conviction file
containing mitigation leads, which counsel knew the prosecution would use to
prove aggravating factors.30 That file contained “a range of mitigation leads that
no other source had opened up,” and would have prompted “[f]urther effort [that]
would presumably have unearthed much of the material postconviction counsel
found.”31 Instead, defense counsel relied on statements by the defendant and his
family that no mitigating evidence existed.32 The United States Supreme Court
held that such reliance did not excuse counsel from their duty to review the prior
conviction file, which would have spurred a wider mitigation inquiry.33 Here, in
contrast, the mitigating evidence in the prior conviction files was not relevant to or
probative of the new (postconviction) experts’ evaluation of brain damage, ADHD
539 U.S. at 524.
Rompilla, 545 U.S. at 383-93 (“[S]earching for old records can promise less than looking for a
needle in a haystack, when a lawyer truly has reason to doubt there is any needle there. . . . But
looking at a file the prosecution says it will use is a sure bet: whatever may be in that file is
going to tell defense counsel something about what the prosecution can produce.”).
Id. at 390-91.
Defense counsel also relied on three mental health experts, whose reviews revealed “nothing
useful.” Id. at 382.
Id. at 389.
and borderline personality disorder. 34
Nor would the (arguably) mitigating
evidence about Taylor’s prior convictions that those files did contain have changed
a reasonable sentencing judge’s ultimate sentence.35
Lastly, in Outten, the Third Circuit held that defense counsel’s
representation was ineffective because counsel had neither obtained nor
independently reviewed available school and medical records, and had relied solely
on conversations with the defendant and his mother. 36 In Taylor’s case, trial
counsel performed an independent investigation that far exceeded the scope of the
investigation conducted in Outten.
New postconviction counsel also rely on the 1989 American Bar Association
Guidelines 37 to support Taylor’s current position.
The Guidelines state that
defense counsel’s duty to investigate is unaffected by uncooperative clients who
Taylor does claim that trial counsel should have obtained more records that would have
revealed at least some mitigating evidence now presented. The reasonableness of trial counsel’s
documentary investigation generally is addressed infra note 41 and accompanying text.
See Swan v. State, ___ A.3d ___, 2011 WL 3904610, at *23-24 (Del. Sept. 6, 2011).
Specifically, regarding his 1993 conviction of First Degree Robbery—a violent felony and
statutory aggravator—Taylor “admitted his involvement but said that he was not the individual
that dragged the woman on the ground causing injury.”
Outten v. Kearney, 464 F.3d 401, 416 (3d Cir. 2006).
1989 American Bar Association Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases.
express a desire not to present mitigating evidence.38 The Guidelines, however, are
not the applicable constitutional standard. Indeed, the United States Supreme
Court has declined to adopt any “set of detailed rules” as a standard for defining
the reasonableness of counsel’s performance under Strickland. 39 This Court,
moreover, has rejected criminal defendants’ claims of ineffective assistance of
counsel in cases where from the outset those defendants had imposed limits on
their lawyers’ freedom of action.40
The record before us establishes that, despite Taylor’s insistence on
presenting no mitigating evidence, trial counsel conducted a diligent investigation
into potential mitigating factors on their client’s behalf. As the Superior Court
found, “trial counsel considered and explored different avenues of action. . . . [but]
[u]nfortunately for them and for Taylor, trial counsel were stymied at every turn.”
More specifically, Taylor’s trial counsel retained a psychiatrist and a psychologist,
multiple psycho-forensic evaluators, and a pastoral counselor. The investigation
Id., commentary to Guideline 11.4.1, (“Counsel’s duty to investigate is not negated by the
expressed desires of a client.”).
Strickland, 466 U.S. at 688-89 (1984); Bobby v. Van Hook, ___ U.S. ___, 130 S. Ct. 13, 16-17
See, e.g., Shelton v. State, 744 A.2d 465, 504 (Del. 1999) (“[F]rom early on in the penalty
phase, [Defendant] made a deliberate strategic decision to limit the mitigating evidence that he
would present[,] [Defendant] cannot now claim counsel acted unreasonably when [Defendant]
clearly had proscribed the parameters of his defense.”). See also, Amos v. Scott, 61 F.3d 333,
349 (5th Cir. 1995) (Finding no ineffective assistance of counsel when counsel failed to
investigate background and character, because defendant had insisted that no witnesses would
testify at penalty phase).
included interviewing Taylor’s family members and gathering his school and
Division of Family Services (“DFS”) records, among other information sources.41
To the extent those experts did not have access to records that now are currently
available, the trial court found that “that was due more to the records’ not being
available and less to trial counsel’s having been derelict. . . .” The court further
found that even with those records in hand, the original defense experts “largely
stand by their pretrial opinions.”
Taylor insists that his trial counsel should have, but did not, consider other
avenues of inquiry. The postconviction hearing testimony of his trial defense
counsel sharply controverts that claim.
Although Taylor instructed his trial
counsel to pursue an “all or nothing actual innocence” defense and present no
mitigating evidence, counsel nonetheless retained two experts who questioned
Taylor’s truthfulness about possible mitigating factors. Trial counsel also strived
to “tease” out an EED defense for Taylor, and explored potential defenses based on
mental illness and drug addiction. But, the original defense experts did not detect
any brain damage to which Taylor now points as “missed” evidence in mitigation.
The trial court also found that the head trauma claims on which Taylor’s new
experts based their diagnosis were “largely uncorroborated.”
As the trial court described it, trial counsel’s investigator had “some difficulty getting records,
especially from the children’s departments. . . . [But] [u]sing her ‘amazing’ knowledge . . .
obtained some previously unobtainable files.”
Taylor’s new postconviction defense experts, Drs. Dougherty and Mack,
based their opinions on uncorroborated statements Taylor made to them. Expert
opinions based on uncorroborated statements do not automatically render trial
counsel’s performance deficient.
As the Superior Court properly held, trial
counsel’s mental health investigation and their mitigation investigation are “not
rendered inadequate ‘merely because the defendant has now secured the testimony
of a more favorable mental health expert.’”42
Taylor’s final investigation-related claim of ineffective assistance flows
from his waiver of the right to present mitigation evidence during the penalty
phase. Taylor argues that that waiver should now be invalidated. He claims that
his waiver was not knowing and intelligent because of: (i) his mental disorders and
counsel’s ineffective mental health and mitigation investigations, (ii) defense trial
counsel’s conflict of interest, and because (iii) the United States and Delaware
Constitutions do not permit waiver of a mitigation defense in capital cases. Taylor
was required to, but did not, challenge the validity of that waiver on direct appeal.
This claim is, therefore, procedurally barred unless Taylor can establish either
ineffective assistance of counsel or some other colorable constitutional claim that
implicates an exception to the Superior Court Criminal Rule 61 procedural default.
Even if we reconstructed the record to include the additional expert opinions, Taylor has not
met his burden of showing a reasonable probability of a different sentence. See Swan v. State,
___ A.3d ___ (Del. 2011), 2011 WL 3904610, at *23-26 (Del. Sept. 6, 2011).
As discussed in Section II infra of this Opinion, those claims are barred because
Taylor has not discharged that burden.
But, even on substantive grounds Taylor’s waiver-related ineffective
assistance claim fails.
Trial counsel sought and reasonably relied on expert
opinion regarding Taylor’s mental state, including his competence to waive a
Dr. Carol Tavani specifically opined that Taylor was
competent to waive a mitigation defense, and trial counsel acted reasonably in
relying on that opinion. The trial court found that there was “no legally cognizable
‘conflict of interest’. . . . Trial counsel and Taylor merely had a difference of
opinion over what course was in Taylor’s best interest as to sentencing.” For these
reasons, and because trial counsel conducted an objectively reasonable
investigation into Taylor’s mental health and into other potentially mitigating
evidence, Taylor has not satisfied Strickland’s first prong on those three claims.
We therefore need not reach or address the prejudice prong issue under
Strickland—whether a reasonable sentencing judge would have sentenced Taylor
differently if Taylor’s new experts, Drs. Dougherty and Mack, had testified and if
Taylor had not waived a full mitigation presentation. 43 Because trial counsel’s
investigation and limited presentation of mitigation evidence was reasonable,
Taylor’s first three Strickland claims cannot succeed.
Swan v. State, ___ A.3d ___, 2011 WL 3904610, at *23-24 (Del. Sept. 6, 2011).
B. The Failure to Object Claims
We turn next to Taylor’s ineffective assistance claims based on trial
counsel’s failure to object on four separate occasions during the trial. Each of
those failures, Taylor argues, implicates errors of law that warrant reversal. Again,
however, because Taylor failed to raise these claims at trial and on direct appeal,
those claims are procedurally barred unless they fall within an exception to Rule
61. Taylor urges that his ineffective assistance of counsel argument operates as a
basis to avoid a procedural default under Rule 61.44
First, Taylor challenges his trial counsel’s failure to object to evidence of
non-statutory aggravating circumstances during the penalty phase. That evidence
included criminal records which contained information about prior convictions,
and also about charges the State declined to prosecute, or withdrew, or that were
dismissed. In addition, Taylor attacks trial counsel’s decision not to object to the
admission, through the testimony of a presentence officer, of presentence reports
from past convictions, which indicated that Taylor’s prognosis was “poor.”
This claim fails because even if trial counsel’s failure to object were deemed
an unreasonably deficient performance—an issue that we do not reach—Taylor has
not shown any resulting prejudice, as Strickland’s second prong requires. As the
Younger v. State, 580 A.2d 552, 556 (Del. 1990) (“Attorney error short of ineffective
assistance of counsel does not constitute ‘cause’ for a procedural default.”) (citing Strickland v.
Washington, 466 U.S. 668 (1984)). The converse is also true: attorney error that constitutes
ineffective assistance will constitute relief from a procedural default.
trial court observed, the evidence to which Taylor objects was only one small part
of the State’s presentation. Given the overwhelming independent evidence of
aggravating factors presented by the State, the disputed criminal records, even if
considered by the trial judge, would not create a reasonable probability under
Strickland that the outcome of Taylor’s sentencing would have been different. As
the trial court found, the “State presented substantial statutory aggravators, far
outweighing the mitigators” and that given those aggravators, “Taylor’s complete
arrest records and ‘poor prognosis’ do not account for the jury’s recommendation.”
Those statutory aggravating factors included Taylor’s prior convictions of violent
crimes and the fact that his murder victim was pregnant. In short, none of Taylor’s
alleged failures-to-object to non-statutory aggravators would have created a record
that would have swayed a reasonable sentencing judge to decide Taylor’s sentence
Second, Taylor argues that trial counsel were ineffective for failing to object
to an alleged Gardner v. Florida 46 violation resulting from the trial court’s
consideration of evidence that Taylor’s defense counsel had compiled in a
mitigation notebook. In Gardner, the United States Supreme Court held that a trial
court’s consideration of a presentence report that had not been fully disclosed to
See Swan v. State, ___ A.3d ___, 2011 WL 3904610, at *23-24 (Del. Sept. 6, 2011).
430 U.S. 349 (1977).
the defendant or his counsel, deprived the defendant of due process. 47 Here,
however, the material at issue—the mitigation notebook—was prepared and
submitted to the trial court by Taylor’s defense counsel after being reviewed by
Taylor. Gardner has no application.
In an effort to show prejudice, Taylor points to the trial court’s reference in
its Findings After Penalty Hearing to an isolated unfavorable description of him as
chronically lacking ambition.
That reference did appear in the mitigation
notebook. But, even if trial counsel had objected to that single notebook reference,
the outcome would be the same. As the trial court found, that lone reference “does
not change the outcome of the weighing process.”
Moreover, this argument
ignores the court’s reason for reviewing the notebook—to seek out all available
mitigating evidence to aid Taylor’s defense. Because trial counsel’s submission of
the mitigation notebook was not objectively unreasonable and the trial court’s
reliance on an isolated unfavorable comment did not prejudice Taylor, this claim
satisfies neither Strickland prong.
Third, Taylor argues that trial counsel’s failure to object to a prejudicial
rebuttal argument by the prosecutor constituted ineffective assistance.
prosecutor’s remark was made in response to defense counsel’s jury arguments at
the penalty hearing, that Taylor’s criminal record was related to, and resulted from,
Id. at 362.
Taylor’s substance abuse issues. The prosecutor told the jury that: “The drug
problem we recognize, . . . but it shouldn’t serve as an excuse. . . . Doesn’t serve
as an excuse for what he did.” Taylor also insists that trial counsel should have
objected when the prosecutor stated, referencing Taylor’s confession letter, “What
does it matter, the fact that the letter that he wrote may have some indication that
he was going to commit suicide? . . . It has no relevance here.” During the penalty
phase Taylor’s counsel argued that the confession note’s (arguably) suicidal
expressions were evidence of remorse, which is a mitigating factor.
prosecutor’s remarks in response were intended to rebut that latter argument.
In its decision denying postconviction relief, the trial court acknowledged
that the prosecutor’s remarks could plausibly have drawn objections from defense
counsel. The court held, nonetheless, that the prosecutor’s arguments were not
unfairly prejudicial; therefore, neither was defense counsel’s failure to object to
Taylor relies on Lesko v. Lehman 48 to support this claim of error. His
reliance is misplaced.
In Lesko, the Third Circuit held that the prosecutor’s
criticism of the defendant for not expressing remorse violated the defendant’s Fifth
Amendment privilege against self-incrimination. 49 Here, in contrast, Taylor’s
925 F.2d 1527 (3d Cir. 1991).
Id. at 1542.
counsel argued to the jury that his expressed remorse was a mitigating factor. That
argument opened the door to rebuttal, and the prosecutorial response at issue was
made to rebut that claim, by questioning whether Taylor’s arguably suicidal
expressions amounted to mitigating evidence.
Moreover, these prosecutorial
remarks were made in the broader context of the State’s presentation of other
independent evidence indicating that Taylor lacked remorse. As the Lesko court
recognized, the defendant “could not claim a fifth amendment privilege against
cross-examination or prosecutorial comment on matters reasonably related to his
credibility or the subject matter of his testimony.”50
Nor can Taylor show a reasonable probability, under Strickland, that the
outcome of his case would have been different had trial counsel objected to both
prosecutorial remarks. Those remarks occurred during Taylor’s penalty hearing
and were properly made to counter mitigating evidence presented by Taylor’s
Reconstructing the record by presupposing that those hypothetical
objections were made would not change a reasonable sentencing judge’s decision
on the outcome of the penalty phase.51 Because in that context Taylor cannot be
said to have suffered cognizable prejudice under Strickland, the trial court properly
denied this ineffective assistance claim.
See Swan v. State, ___ A.3d ___, 2011 WL 3904610, at *23-24 (Del. Sept. 6, 2011).
Fourth, and finally, Taylor contests his trial counsel’s decision not to object
to the trial court’s anti-sympathy jury instruction.52 That claim ignores the fact that
an anti-sympathy jury instruction is required under Delaware case law,53 and that
the United States Supreme Court has held that an anti-sympathy jury instruction
does not violate the U.S. Constitution.54 Therefore, trial counsel’s failure to object
to the court’s anti-sympathy instruction was neither objectively unreasonable nor
prejudicial under Strickland.
As the trial court correctly found, for each of
Taylor’s “failure to object” claims, an objection by trial counsel was either not
The court stated:
You are reminded that you must base your answers to the questions on the special
interrogatory sheet solely upon the evidence and the instructions as to the law and
you must not be swayed by mere sentiment, conjecture, sympathy, passion,
prejudice, public opinion or public feeling.
While evidence about the victim and about the impact of the murder on the
victim’s and defendant’s families is relevant to your decision, you must remember
not to allow sympathy to influence your sentence recommendation in any way.
The Court does not charge you not to sympathize with the victim or family or
defendant or his family, because it is only natural and human to sympathize. But
the Court does charge you not to allow sympathy to influence your sentencing
See, e.g., State v. Steckel, 708 A.2d 994, 1001 (Del. Super. 1996) (“In guiding the jury's
sentencing deliberations and recommendation in the penalty phase of a capital case, the Court is
compelled to give an instruction that precludes the consideration of sentiment, conjecture,
sympathy, passion, prejudice, or public feeling as both irrelevant and improper.”) (citing
California v. Brown, 479 U.S. 538 (1987)).
Brown, 479 U.S. at 542 (concluding that a jury instruction, which told the jury not to be
swayed by “mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public
feeling” did not violate the Eighth and Fourteenth Amendments).
required or would not have been reasonably likely to change the result of the case,
II. TAYLOR’S OTHER CONSTITUTIONAL CLAIMS
In addition to, and apart from, his ineffective assistance of counsel
arguments, Taylor claims other, separate constitutional violations that factually
overlap the ineffective assistance claims.
Because Taylor did not raise these
claims on his direct appeal, those claims also are procedurally barred absent a
showing that they fall within a recognized Rule 61 exception. “When reviewing a
motion for postconviction relief under Superior Court Criminal Rule 61, this Court
must first consider the procedural requirements of the rule before giving
consideration to the merits of the underlying claims.”55
Superior Court Criminal Rule 61(i)(5) creates an exception to the procedural
default rule, in cases where there is “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 leading to the judgment
of conviction.”56 This provision, often referred to as the “fundamental fairness”
exception, is “a narrow one and . . . [is] applied only in limited circumstances, such
as when the right relied upon has been recognized for the first time after the direct
Shelton v. State, 744 A.2d 465, 474 (Del. 1999).
Del. Super. Ct. Crim. R. 61(i)(5).
appeal.”57 To invoke this exception, there must be both a claim of a constitutional
violation, and a showing that the claim is “colorable” and “undermine(s) the
fundamental legality, reliability, integrity or fairness of the proceedings leading to
the judgment of conviction.”58
Taylor identifies at least five constitutional violations that arguably might be
considered under the “fundamental fairness” exception.59 First, Taylor contends
that because a defendant cannot constitutionally waive his mitigation defense in a
capital case, his waiver was constitutionally invalid. Second, he contends that the
trial court’s consideration of the mitigation notebook, which was not provided to
the jury, ran afoul of the United States Supreme Court’s Gardner decision. Third,
Taylor urges that the trial court’s admission of prognosis testimony based on prior
presentence reports violated constitutional rights recognized in Estelle v. Smith.60
Fourth, Taylor claims that the prosecutor’s allegedly improper remarks denied him
due process and a fair penalty hearing. And fifth, Taylor asserts that the anti57
Younger v. State, 580 A.2d 552, 555 (Del. 1990) (citations omitted).
Del. Super. Ct. Crim. R. 61(i)(5).
Taylor does not argue explicitly that these claimed violations fall under the “fundamental
fairness” exception to Rule 61(i)(5). Instead, he relies exclusively on his failure-to-object
ineffective assistance claims as the basis to avoid a procedural default of these claims. Although
we will regard the “fundamental fairness” argument as implicit in Taylor’s claims of prejudicial
constitutional violations, we strongly advise that defense counsel explicitly address all reasons
why claims that are arguably subject to treatment as defaulted, should not be deemed defaulted.
451 U.S. 454 (1981).
sympathy instruction to the jury violated his constitutional “right to a fair and
reliable sentencing determination.”
Taylor’s first claim—that his mitigation defense at the penalty hearing was
not waivable—is grounded upon Lockett v. Ohio. 61 There, the United States
Supreme Court held that a capital defendant has a constitutional right to present
mitigating evidence. 62 The problem with Taylor’s argument, however, is that
Lockett does not hold that that constitutional right cannot be waived. Taylor also
relies on an intermediate New Jersey appellate court decision63 for the proposition
that his constitutional right to present mitigating evidence is undermined by
allowing a waiver. But, several federal Courts of Appeal have held otherwise,64
and we find those latter federal decisions more authoritative and persuasive.
Taylor also cursorily asserts that his waiver violates Article I, Section 7 of the
Delaware Constitution, but provides no textual argument or authority to support
438 U.S. 586 (1978).
Id. at 604 (“[W]e conclude that the Eighth and Fourteenth Amendments require that the
sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence less than death.”).
State v. Hightower, 518 A.2d 482 (N.J. App. Div. 1986).
Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005); Brecheen v. Reynolds, 41 F.3d 1343,
1368-70 (10th Cir. 1994); Singleton v. Lockhart, 962 F.2d 1315, 1323 (8th Cir. 1992).
that claim.65 Because Rule 61(i)(5) requires a colorable claim of a constitutional
violation, and Taylor has not made that showing, his no-waiver claim fails.
Taylor next argues that the trial court’s consideration of the mitigation
notebook, submitted by defense counsel, denied him due process under Gardner.
That argument, if accepted, would turn Gardner on its head. To reiterate, here,
unlike Gardner, defense counsel was not deprived of the opportunity to view the
mitigation material. Rather, defense counsel themselves created and submitted that
material to the court. Because Gardner is inapposite, Taylor has not raised a
colorable constitutional claim. That claim is, therefore, procedurally barred.
Third, Taylor asks this Court to extend the United States Supreme Court’s
holding in Estelle v. Smith66 to the facts of this case. In Estelle, the Supreme Court
held that a psychiatrist’s opinion of the capital defendant’s future dangerousness
constituted a Fifth Amendment violation, where that opinion relied on statements
by the defendant during a court-ordered competency examination before which the
defendant had not been given his Miranda rights.67 Taylor asks us to hold, under
Estelle, that the trial court’s admission of the previous presentence reports’ “poor”
Taylor’s reference to that state constitutional provision is followed by non-constitutional
statutory arguments. See, e.g., Wallace v. State, 956 A.2d 630, 637 (Del. 2008) (“This Court has
held that ‘conclusory assertions that the Delaware Constitution has been violated will be
considered to be waived on appeal.’”) (citing Ortiz v. State, 869 A.2d 285, 291 n. 4 (Del. 2005)).
451 U.S. 454 (1981).
Id. at 464-69 (citing Miranda v. Arizona, 384 U.S. 436, 467 (1966)).
prognoses of Taylor during the penalty phase violated Taylor’s Fifth Amendment
rights, because the reports were based on “non-Mirandized”68 statements Taylor
had previously made.
Some federal Courts of Appeal have extended Estelle to presentence
interviews by probation officers.69 Other circuits have declined to apply Estelle to
presentence interviews, at least in cases when those interviews were “routine.”70
Notably, Taylor does not claim that the presentence interview conducted in this
proceeding, in and of itself, violated his constitutional rights. Rather, Taylor’s
argument appears to be that the presentence officer’s testimony at the penalty
phase was constitutionally tainted because the officer described evidence from
“previous court-ordered presentence reports”—completed in 1988, 1992, and
1994—based on interviews where Taylor was not read his Miranda rights
beforehand. In each report, Taylor’s prognosis was described as “poor.” The
State, for its part, nowhere responds to, or addresses, the claimed Estelle violation
in its brief.
Miranda, 384 U.S. 436 (1966).
Jones v. Cardwell, 686 F.2d 754, 756 (9th Cir. 1982).
U.S. v. Cortes, 922 F.2d 123, 126 (2d Cir. 1990) (“The other circuits that have addressed this
issue have found that a defendant is not entitled to a Miranda warning at a post-conviction
presentence interview. We agree that a probation officer need not give Miranda warnings before
conducting a routine presentence interview, and so hold.”) (citing, in part, United States v.
Miller, 910 F.2d 1321, 1326 (6th Cir.1990); U.S. v. Rogers, 921 F.2d 975, 979 (10th Cir. 1990);
United States v. Jackson, 886 F.2d 838, 841-42 n. 4 (7th Cir. 1989)) (emphasis added).
Assuming, but again without deciding, that this constitutional claim
violation is colorable, Taylor has failed to show that violation “undermine(d) the
fundamental legality, reliability, integrity or fairness of the proceedings leading to
the judgment of conviction.”71 This is not a case “when the right relied upon [was]
recognized for the first time after the direct appeal,”72 nor is it one involving a clear
miscarriage of justice. In Estelle, the psychiatrist testimony was that the defendant
was a “very severe sociopath,” “will continue his previous behavior,” and that his
condition “will only get worse.”73 Here, however, the characterization to which
Taylor now objects was simply that Taylor’s prognosis was “poor.”
We cannot conclude that that evidence undermined the integrity of the
proceeding. The presentence investigator’s prior prognoses of the defendant as
“poor” told the jurors nothing they did not already know, given the undisputed
background of Taylor’s repeated violent criminal conduct—a background that
eventually culminated in murder.
Taylor has not met his burden to show a
colorable Estelle violation that undermined the result of his sentencing. Therefore,
this claim is also procedurally barred.
Del. Super. Ct. Crim. R. 61(i)(5).
Younger v. State, 580 A.2d 552, 555 (Del. 1990) (citations omitted).
Estelle, 451 U.S. at 459.
Taylor’s final two constitutional claims, regarding the prosecutor’s allegedly
improper comments and the court’s anti-sympathy jury instruction, have been
addressed previously in Section I supra.
Taylor has not shown that the
fundamental fairness of his trial was undermined as a result of either prosecutorial
And contrary to Taylor’s claim that the anti-sympathy instruction
violated Article I, Sections 4, 7, and 11 of the Delaware Constitution, our courts
have interpreted anti-sympathy instructions as a requirement to guard against
improper prejudice or passion being injected into any decision. 74
conclusory claims based on the Delaware Constitution are procedurally barred
because he has not established any colorable violation that fundamentally
undermines the judgment in his case.75 Because none of Taylor’s constitutional
claims are colorable, they are procedurally barred.
III. MATERIAL WITNESS WARRANT CLAIM
Taylor’s final claim is that the trial court erred by refusing to issue a material
witness warrant to compel his mother to testify at the postconviction proceeding.
Taylor’s mother refused to appear at that proceeding, despite her brief testimony
during the penalty phase of the trial. Taylor filed a motion asking the Superior
See, e.g., State v. Steckel, 708 A.2d 994, 1001 (Del. Super. 1996); State v. Ferguson, 1995 WL
413269, at *7-8 (Del. Super. Apr. 7, 1995).
See, e.g., Wallace v. State, 956 A.2d 630, 637 (Del. 2008) (“This Court has held that
‘conclusory assertions that the Delaware Constitution has been violated will be considered to be
waived on appeal.’”) (citing Ortiz v. State, 869 A.2d 285, 291 n. 4 (Del. 2005)).
Court to issue a material witness warrant to compel her testimony, but did not
explain how his mother’s testimony would help his case.
The trial court denied the motion, but without prejudice to Taylor’s right to
show that his mother had worthwhile testimony to add. Taylor never availed
himself of that opportunity. Nor has he shown that the interests of justice require
consideration of this claim on appeal. He therefore waived his right to appeal the
court’s denial of his motion.76
For the above reasons, the judgment of the Superior Court denying
postconviction relief under Superior Court Criminal Rule 61 is affirmed.
Del. Supr. Ct. R. 8; Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).