State of Delaware v. Powell.
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SUPERIOR COURT OF THE STATE OF DELAWARE T. HENLEY GRAVES SUSSEX COU NTY C OUR THO USE RESIDENT JUDGE ONE THE CIRCLE, SUITE 2 GEORGETOWN, DE 19947 July 21, 2010 HAND DELIVERED Paula Ryan, Esquire Martin J. Cosgrove, Jr., Esquire Department of Justice 114 East Market Street, Suite 201 Georgetown, DE 19947 RE: Stephanie Tsantes, Esquire Dean Johnson, Esquire Office of the Public Defender 14 The Circle, Second Floor Georgetown, DE 19947 State v. Derrick J. Powell Case No. 0909000858 (THG) Murder 1st Degree - Capital Dear Counsel: On June 30, 2010, the defense filed a Motion to Declare the Delaware Death Penalty Statute Unconstitutional. See 11 Del.C. ยง4209 This motion seeks to declare the sentencing considerations and protocol unconstitutional for two reasons. Once a jury unanimously finds a statutory aggravator beyond a reasonable doubt, the ultimate sentencing decision is by a judge, who must determine if the aggravators outweigh the mitigators by a preponderance of the evidence. Powell believes the statute to be unconstitutional because (i) a judge makes the final decision and (ii) the weighing decision is by a preponderance of the evidence instead of beyond a reasonable doubt. In other words, the defense theory is that the death penalty can only be imposed by a jury verdict with the decision being based on a beyond a reasonable doubt standard. The present motion is identical to that presented to this Court in State v. Allison Lamont Norman. I am not being critical of the defense in any way because I realize they must cover all bases in the event of a conviction and potential imposition of the death penalty. However, since this motion is deja vu, there is no reason for the Court to re-analyze an issue that has been previously decided. See State v. Millard Price, 2009 WL 3765502 (Del.Super.) State v. Derrick J. Powell Case No. 0909000858 Page Two July 21, 2010 Therefore, defendant s Motion to Declare Delaware Death Penalty Statute Unconstitutional is denied. IT IS SO ORDERED. Very truly yours, /s/ T. Henley Graves cc: Prothonotary
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