Small v. State
51 A.3d 452
| Del. | 2012Background
- Leslie Small was convicted by a jury of two counts of First Degree Murder, three counts of Possession of a Deadly Weapon During a Felony, First Degree Robbery, and Second Degree Burglary, with death sentence imposed in the penalty phase.
- During penalty, four statutory aggravators were found: prior felony Robbery conviction with violent underlying conduct; pecuniary gain; victim over 62; and murder during commission of First Degree Robbery.
- Small admitted to the murders in a confession, and the State introduced expert testimony during the penalty phase.
- Defense highlighted mitigating circumstances, including age, remorse, and personal history; the State repeatedly described mitigation as excuses.
- The prosecutor repeatedly described mitigating evidence as excuses, which the court found to be plain error, requiring reversal and remand for a new penalty hearing.
- The court remanded for a new penalty hearing and did not address proportionality of death sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fifth Amendment right to remain silent violated by expert testimony | Small argues the doctor’s comment about refusal to discuss events violated his silence rights | Small did not strategically waive appellate review; the issue is plain error | Plain error; harmless given confession and trial context |
| Prosecutor's mischaracterization of mitigating evidence as excuses | Mitigation was improperly labeled as excuses, undermining penalty phase | State relied on excuses to shift blame; may distort weighing of factors | Plain error; prejudiced penalty phase; remand for new penalty hearing |
Key Cases Cited
- Wainwright v. State, 504 A.2d 1096 (Del.1986) (plain-error standard for trial-advancing prejudicial errors)
- Wright v. State, 980 A.2d 1020 (Del.2009) (waiver of plain-error review when defense strategic not to object)
- Whalen v. State, 492 A.2d 552 (Del.1985) (mitigating factors not to be described as excuses; improper comment)
- Taylor v. State, 32 A.3d 374 (Del.2011) (prosecutorial remarks about mitigating not to excuse; distinguishable from Whalen)
- Baker v. State, 906 A.2d 139 (Del.2006) (standard for prosecutorial misconduct; de novo review for misconduct; then harmless/plain error)