Capano v. State

jurisdiction prives this Court of review untimely because it was not filed within days Superior jury’s appeal. of the final in thirty Court’s this verdict was the of the judgment, which denial Thomas’ motion dis- Consequently, for new trial.2 Thomas asserts motion in The Clerk of part miss is GRANTED. for pending motion costs did not that the the Court to establish brief is directed finality Superior of suspend the with re- appeal on schedule the Cahalls’ Thus, judgment.3 according to Court’s only. spect to issue of costs Thomas, jurisdiction to this Court lacks untimely appeal hear the from Cahalls’

jury’s verdict. on Thomas’ motion is dictat ruling

Our In Emerald precedent.

ed established Berlin,4 appellees moved to

Partners interlocutory be appeal

dismiss before appeal

cause the notice of was filed a pending trial court ruled on motion ANO, Thomas Defendant J. CAP dismiss, the motion to costs. We denied Below, Appellant, pendency that “the of a motion for

holding delay finality ... costs does judgment on the merits.”5 We reiterated Delaware, Appellee. STATE of DaimlerChrysler in McDaniel v. point this No. 2005. granted appellees’ mo Corp.6when we appeal ground on tion to dismiss the Delaware. Supreme Court of was not within appeal that notice of filed 19, 2005. Oct. Submitted: days Superior entry thirty Court’s rejected summary judgment. 10, 2006. Decided: Jan. pending mo McDaniel’s contention finality suspended tion for costs summary judgment ruling.7

trial court’s precedent, this clear Thomas’ light part granted.

motion to dismiss must have notice should filed their

The Cahalls jury’s within appeal from the verdict Superior en- days after the Court’s

thirty judgment final this case.

try of final, case

jury’s became verdict July on 2004 when the

appealable order motion denied the Cahalls’

Superior Court prop- trial. The Cahalls’ failure

for new appeal from the ver-

erly notice an de- required period time

dict within 6(a)(i). Id. 5. 791. Del.Supr. Ct. See

2. R. Berlin, Partners v. See Emerald (Del.2004) A.2d 321 (Del.2001). Id. at 323. Id. This

death Court affirmed penalty. appeal, on conviction and sentence Capano’s challenge to specifically rejecting sentencing death sentence because jury, his judge, not the determined This of death.1 eligibility for sentence States guided Court the United was Supreme Court’s decision Walton cer Capano then for petitioned Arizona.2 Su tiorari review the United States preme petition While his Court. pending United States Ring v. Arizona3 which overruled decided that it allow[ed] Walton “to the extent judge, sitting jury, without neces find an circumstance sary penalty.”4 imposition Bernstein, DE, Wilmington, M. Joseph Supreme Court Ring, the United States appellant. for circum held that a equiva stance as “the functional operated (argued) Loren Ferris W. Wharton and of a offense” greater lent of an element Justice, Meyers Department Wil- required and that the Sixth Amendment De, for mington, appellee. jury.”5 aby element be “found this Justice, STEELE, Before Chief for review Capano’s petition certiorari HOLLAND, JACOBS, RIDGELY, Supreme by was denied United States NOBLE, Chancellor,* and Justices Vice postcon- then Capano Court.6 moved constituting the Banc. Court en and Superior viction relief in the Court must be argued that his death sentence RIDGELY, Justice, majority: for the Ring of the decision vacated because Defendant-appellant, Capano, Thomas J. Ring. He also interpreting other decisions in the by jury was convicted of Murder conviction should be set aside claimed his Degree, sentenced to death First and was counsel multiple that his based on claims after by Superior Judge Court evidentiary After an hear- was ineffective. of 11 1 that Judge by advised the a vote all of ing, rejected Superior Capano’s postcon- circumstance ex- denied arguments Capano’s death sentence Capano eligible for the viction relief.7 isted which made * IV, Sitting by designation pursuant Jersey, to Article U.S. (quoting Apprendi 5. Id. v. New 530 12 of Constitution and Section the Delaware 466, 19, 2348, 120 S.Ct. 147 L.Ed.2d n. 494 4(a). Supreme Court 2 and Rules (2000)). 435 556, A.2d Capano v. 781 Delaware, S.Ct. Capano 122 (Del.2001). (2002). 835 153 L.Ed.2d L.Ed.2d 2. 497 U.S. (1990). Capano, Del.Super. Lexis 7. State v. (March 9, 2005). U.S. S.Ct. 153 L.Ed.2d 3. 536 4.Id. murder, reimposed stayed pending and then capital by fense of must be found jury. Capano’s a unanimous Because eli-

the outcome of appeal.8 gibility for the death penalty was decided In this appeal, Capano has limited his judge without a unani- claims of ineffective assistance of counsel jury finding statutory aggrava- mous to three of those that he raised before the circumstance, ting we must vacate his Superior Capano Court.9 also claims that death sentence. This constitutional flaw the death penalty statute under which he penalty phase does not bar a new (“the statute”) was sentenced is fa- penalty hearing procedure under a cially Ring, unconstitutional under or un- comports requirements. with constitutional him, applied constitutional as and that Accordingly, remand this matter for a principles of Jeopardy Double bar new penalty hearing Ring new consistent with penalty hearing. statute that was enacted in response decision affirm judgment (“the statute”).10 Court, Superior holding that Capano has failed to establish his ineffective assistance Background I. reject of counsel claims. We previous Opinion,11 In a this Court dis- claim that the 1991 statute is unconstitu leading cussed the events to the conviction tional, but find a constitutional flaw its capital repeat sentence. We our earli- application to him under the new rule an introduction; er nounced United States guilty Thomas J. was found Ring. Court in A factual determination degree first murder and sentenced eligibility for penalty the death must be death for the murder of Anne Marie by jury found Ring, eligi because under Fahey. As with all capital cases in De- bility upon based the existence of a statu laware, the proceedings here were divid- tory aggravating longer circumstance is no guilt phase, ed into a a penalty hearing merely but, rather, a sentencing factor is by and a determination an greater element of the capital offense of judge, gave trial weight who substantial Delaware, murder. any the elements of following to the recommendation offense, criminal including greater of- penalty hearing.12 Capano was ar- 2003) murder); State, undisputed Capano's 8. It (felony Taylor death sen v. 822 unique. tence under the 1991 (Del.2003) (the statute is As stipula A.2d 1052 defendant’s Superior acknowledged, Court "all other guilt phase tion at the that the victim was defendants sentenced to death under the 1991 pregnant at the time of the murder made the statute jury involved a unanimous determina eligible). defendant death statutory aggravating tion as to the circum stance(s) jury's unanimous verdict and/or result, remaining 9. As a claims of ineffec which, facto, guilt phase in the de established tive assistance of counsel have been waived. statutory aggravator, guilty such as a ver State, (Del. Murphy v. 632 A.2d involving dict people.” two of State 1993). Capano, Del.Super. v. Lexis *90 (March 9, State, 2005). See Steckel v. 4209; § 10. 11 Del. C. 73 Del. Laws c. (Del.2005) (convicted murder, A.2d 168 S.B. 449 arson); State, rape Starling and v. 882 A.2d (Del.2005) (double murder); Cabrera v. State, Capano v. 781 A.2d State, (Del.2004) (double 840 A.2d 1256 mur (Del.2001). der); State, (Del. Zebroski v. 822 A.2d 1038 2003) murder); State, (felony Swan v. (Del.2003) murder); changed procedure 12. The after (felony Reyes A.2d 342 the General State, (Del.2003) (double Assembly in mur revised statute der); (Del. Norcross v. 816 A.2d 757 decided, Capano’s petition in Fahey’s Ring for murder November ter was rested 1997 and in December 1997. by Supreme indicted was the United States denied Superior in in began His trial Court comment.15 Court without guilt phase of this October 1998. II. Discussion quite proceeding before was A. long, thirty-two spanning approximately days spread ten from trial over weeks Capano’s Ineffective Assistance January October Merit Counsel Claims Lack unanimously Capa- After the found Capano’s We first discuss ineffective murder, degree guilty no first Specifically, Capano counsel con- claims. commenced. It lasted penalty hearing prejudicial- trial counsel tends that his by days findings for five resulted (1) did not ly deficient because counsel: aggravating mitigating on concerning request limiting instructions phase In the circumstances. Fahey’s Anne state- Marie out-of-court found cir- (2) ments; stipulation to a agreed cumstance a vote of to 1 and statements; Fahey’s of 10 2 that recommended a vote admitted out-of-court (3) the trial find the cir- judge object prosecutor’s did outweighed mitigating cumstances Capano pre- about his cross-examination giving proper circumstances. After possible arrest post-arrest silence weight findings, Superior those rights. Fifth violation of his Amendment Judge Court sentenced to death Court, Superior denying We hold the 16,1999.13 on March relief, Capano’s postconviction for motion by rejecting did not its discretion abuse direct this Court affirmed. appeal, On these contentions. Capano petitioned to the United States Court certiorari One for review. review for abuse of dis “We an before that Court denied week Superior judge’s cretion a denial certiorari, for it decided petition a motion relief on postconviction for based Arizona, the that forms the case basis “Nev ineffective assistance counsel.” Capano’s subsequent Rule motion ertheless, carefully the record review appeal. evidence ‘competent determine whether The decision of the United States Su supports findings court’s of fact and v. an preme Ring Court Arizona not er whether its conclusions law are rule procedural applies a new nounced ”17 Questions of law are re roneous.’ Capano’s at the time case because viewed novo.18 de decided, conviction was not Capano’s was his prevail on claim of ineffec To Capano’s petition final.14 certiorari counsel, Capano Af- tive must pending Ring was decided. assistance was when 1038, State, (Del. State, 556, 16. v. 822 A.2d Capano v. Zebroski 13. (Del.2001). 2003). 348, Summerlin, See Schriro 542 U.S. v. A.2d (quoting Id. Outten (2004); L.Ed.2d Grif (Del. 1998)). Kentucky, 479 U.S. S.Ct. fith (1987). 713 n. 93 L.Ed.2d Id. Delaware, Capano v. 153 L.Ed.2d 835 satisfy the test set out prong, United As for the second “actual prejudice” that, States Court in Strickland v. means “a reasonable probability but Washington: errors, unprofessional for counsel’s the re- sult proceeding would have been

A convicted defendant’s claim that coun- different.”22 sel’s assistance was so defective toas require reversal of a conviction or death Capano’s first and second inef First, sentence has two components. fective assistance of counsel contentions the defendant must show that counsel’s are that his trial counsel should not have performance was deficient. This re- stipulated to admit Fahey’s Anne Marie quires showing that counsel made errors statements, out-of-court that counsel so serious that counsel was not function- requested jury limiting should have in ing guaranteed as the “counsel” the de- concerning structions them. During the fendant the Sixth Amendment. Sec- trial, prosecution introduced out-of- ond, the defendant must show that the victim, court statements from the Anne performance deficient prejudiced the de- Fahey. Marie strategy, As matter of fense. requires This showing coun- lawyers stipulated defense prose with the sel’s errors were deprive so serious as to they cutors that object would not to the trial, defendant of a fair a trial prosecution’s evidence, hearsay provided whose result is reliable. Unless defen- prosecutors object would not dant makes both showings, it cannot be hearsay defense’s evidence. Capano con said that the conviction or death sen- tends that strategy his counsel’s meets tence resulted from a breakdown First, prongs both of Strickland. he con adversary process that renders the re- professionally tends was unreasonable sult unreliable.19 agree for defense counsel to to admit all evidence; prosecution’s hearsay

Regarding prong, the first defi second, he contends this admission into performance, cient strong pre there is a evidence prejudice caused actual because sumption that representation counsel’s it, without the result of the trial would professionally reasonable:20 have been different. Judicial scrutiny of perform- counsel’s ance must highly deferential. It is agree Superior with the tempting all too for a defendant to sec- Capano has satisfied his burden under ond-guess counsel’s assistance after con- prong either Strickland with respect to his sentence, viction or adverse and it is all stipulation counsel’s to admit out-of-court easy court, too for a examining counsel’s attorneys statements. trial unsuccessful, defense after it proved has professionally made a reasonable decision to conclude that particular act or in stipulating omis- with prosecution the to ex- sion of counsel was change hearsay unreasonable.21 unfavorable favorable Wash., 668, 687, 52, 58, 366, 19. Strickland v. 466 U.S. U.S. 106 S.Ct. 88 L.Ed.2d 203 2052, (1985)). S.Ct. 80 L.Ed.2d 674 See also State, 651, (Del.2002) Steckel v. 795 A.2d State, 33, (Del. 20. Grosvenor v. 849 A.2d Fretwell, 364, (quoting Lockhart v. 506 U.S. 2004). 369, 838, (1993); 113 S.Ct. 122 L.Ed.2d 180 Strickland, 694, 2052); 466 U.S. at 104 S.Ct. Strickland, 689, 466 U.S. at State, (Del.2003) Wilson v. 834 A.2d State, (citing Dawson v. 673 A.2d (Del. 1996)); State, (Del.2003) v. Grosvenor 849 A.2d Wilson (Del.2004) Lockhart, Dawson, 1190). (citing (quoting Hill v. 673 A.2d at stipula- arrest silence because such hearsay. They questioning entered into this vi- agree- understanding rights. tion with the full his Fifth olated Amendment Be- experienced who Capano, ment of is an Capano gave trial fore never authorities a former Even attorney prosecutor. gave at the account events that he trial. that counsel not have en- assuming should trial, explained why he on direct At exami- has not stipulation, Capano tered into this During Capano’s nation. cross-examina- prejudice, shown because even without tion, Capano asked about prosecutor evidence, prosecution’s hearsay there was arrest, during his bail his silence before his evidence to sufficient sustain asked about jail, and hearing, and while in verdict. account before give to same his failure Generally, trial. gave that he trial Capano also contends that both prose- allow not Fifth Amendment does prongs by his Strickland were satisfied it can that infer argue cutor to limiting failure request trial counsel’s to when exer- from a defendant’s silence guilt testimony instructions after the of each or incrimi- testify right not to cised as a presented state witness who out-of-court did not counsel oneself.23 Defense nate Fahey. gave The Superior ments of Capano he felt objection testimony of raise an because limiting instructions after the all, door, that several, opened but the witnesses. had judgment.” a tactical “probably agree with the Court that Superior We has not his burden under Capano satisfied in Capa- held has previously This Court prong respect either to his Strickland with prosecutor’s appeal no’s direct to in- request limiting counsel’s failure impeachment.24 questions proper were structions after each witness. Court that Superior agree with the attorneys made a choice not to strategic burden under satisfy did not his Capano request limiting every after instruction his counsel’s prong for either Strickland witness, limiting to rely but instead on the regarding object questions to failure to given by Superior instructions Court. from the plain It is pre-trial his silence. Capano this has failed establish the very opened that he the door record unrea- strategic objectively decision was challenges cross examination he sonable. Nor has met his burden During direct examination Ca- appeal. his limiting in- showing that lack of a arrest and his pano testified that before every prejudi- struction after witness was anyone not told after June 1996 he had cial. protect that to the truth. He he did said protect he identified. himself and to others final inef Capano’s third and why anyone not tell explained He he did is that fective assistance counsel claim actually story he told and that objected his trial counsel should have but did speak police, with the of Ca he wanted prosecutor’s cross-examination pre-arrest post- his not.25 pano concerning Burson, (10th 609, 614-15, California, 952 F.2d Cir. Griffin 1991). (1965). Sever 14 L.Ed.2d 106 prose circuit courts held that al federal have pre-arrest violates 24. 781 A.2d 647. cution comment on silence 1562, Powell, Coppola v. F.2d 878 Griffin. denied, (1st Cir.), 493 U.S. set forth in the cert. 25. This direct examination is 969, 418, (1989); denying postconvic Superior opinion 107 110 S.Ct. L.Ed.2d 383 Court’s Lane, Del.Super. Savory Capano, F.2d State 2005 ex rel. v. tion relief. v. United States 69, 9, 2005). (March 1011, (7th Cir.1980); *30-36 States v. Lexis United Statute, objection

The lack of an to the 1999 under the 1991 where the cross- examination in these circumstances does jury’s only function to advise the performance not rise to deficient under judge, who whether a death then decided correctly Strickland. Superior 2002, In imposed. sentence should be “opened found that had Capano the door” Assembly General revised Delaware’s to the during cross-examination his direct Penalty Death of the deci Statute because examination his and that cross examination Ring.27 sion in 2002 Statute trans “The credibility was directed to the of factual role, formed the at the so-called Capano issues had raised. if himself Even narrowing phase, one that was advi from defense counsel been able to had success- sory under the 1991 version of Section fully object to prosecutor’s cross-exam- 4209, into one that is now determinative as ination, Capano not met his has burden of any statutory aggrava existence showing that the questioning was so seri- ting This Court has up circumstances.”28 deprive ous as to him of a fair trial. More- constitutionality held the of the 2002 stat over, other evidence was sufficient to sus- ute in Brice v. State.29 tain the conviction. This claim is without merit. Brice, found no this Court also struc

tural Capano defect in the statute.30 urges us to Brice because overrule B. 1991 statute is unconstitutional under Penalty The 1991 Death Statute Is Not Ring. We decline invitation to Unconstitutional On Its Face Brice, revisit the well-settled law where Court held that unanimous find We now turn to the constitutionality of ings any Ring render error harmless.31 the 1991 death statute. subsequent opin We reaffirmed Brice in only jury, Arizona held that not a judge Ortiz33, Norcross32, such ions as and most sitting jury, may without a find fact Steckel.34, recently, For the reasons this necessary element for the death Brice, Court articulated in there is no mer penalty, because the Sixth Amendment re it to Defendant’s claim that the 1991 stat quires a jury to find an aggravating cir ute was necessary structurally cumstance for the deficient there imposition of death sentence.26 was sentenced fore its face. unconstitutional on 26. 'narrowing' phase sentencing process. State, Thus, finds, (2002). unanimously L.Ed.2d 556 See also Brice v. once doubt, (Del.2003). beyond 815 A.2d a reasonable the existence of at circumstance, least one eligible death 4209; defendant becomes § 27. 11 Del. C. 73 Del. Laws c. Ring’s requirement constitutional fact- S.B. 449 satisfied.”). finding is Brice, 815 A.2d at 320. State, (Del.2005) 869 A.2d Ortiz ("Delaware’s hybrid sentencing, al form (Del.2003). A.2d lowing find defendant eligible allowing judge impose and then Brice, 815 A.2d at 326. defendant is found once the eligible, contrary to be death 31. Id. United States Consti Sixth Amendment of the tution, Apprendi Ring.”). as construed in State, (Del. 32. Norcross v. 2003) (Del.2005). ("Ring only extends to the 34. Steckelv. 882 A.2d 168 so-called 978 on the jury, relies not sit without but

C. is holding Ring’s jury’s recommendation. Sentencing Applied As The Procedure Rather, States not so the United narrow. To Did Not Meet Procedural “[c]apital that Supreme Court concluded Requirements Constitutional defen- non-capital defendants, than no less whether, ap We next as address determina- jury to a dants ... are entitled plied Capano, sentencing pro the 1991 legislature any tion of fact on which procedural met cedure constitutional re maximum in their conditions an increase quirements Ring under and Delaware de- Court punishment.”38 Superior The argues The State that Constitution. does jury cided determination that this Supreme States' United decision Dela- under the not unanimous have be Ring applies only to the Arizona disagree. ware Constitution.39 We inapplicable scheme and is to Delaware’s 280 Delaware years, For over Instead, death statute. State aof has twelve members required that urges only us to Hildwin apply v. Florida every ele jury find fact unanimously as ,35 a decision of the United States Su reasonable beyond a ment crime of a preme Ring Apprendi, Court before statutory aggra Ring, doubt.40 Under holding valid recommendation that a defen vating qualifies that circumstance judge impose In a death sentence. itself the punishment dant capital for case, how must decide the United of an element equivalent “functional Supreme Ring States Court decisions in advisory jury The greater offense.”41 Apprendi to the Delaware statu apply find unanimously not did case tory scheme. pre the “murder was the element that the result of substantial meditated and The United States jury a unanimous planning.”42 Without any finding Court has held that new cir finding fact that for crime increases the cumstance, to sentence procedure used prescribed statutory beyond maximum statute under the 1991 Capano to death proved must be submitted to a him. applied was unconstitutional beyond According a reasonable doubt.36 judge, jury, not ly, sitting may without 2005, Association American Bar a statutory aggravating find circumstance Jury adopted Principles Juries necessary to impose penalty.37 right “the Trials. 1 Principle states argues ap Princi preserved.”43 State does trial be shall ple “jury 4 should ply judge does states that decisions Delaware because 638, 2055, right may be waived. U.S. 104 to a determination 35. 490 109 S.Ct. L.Ed.2d (1989). McCann, See Adams v. United States ex rel. 269, 278, 236, 63 S.Ct. 87 L.Ed. U.S. 466, 490, Apprendi Jersey, v. U.S. 36. New State, (1942); Davis v. 120 S.Ct. 147 L.Ed.2d 435 case, (Del.2002). Capano did not In this right waive his to a trial. Ring, 37. 536 U.S. at 2428. Ring, 536 122 S.Ct. U.S. at 2428. Ring, U.S. at Capano, Del.Super. 39. State Lexis 4209(e). § 42. 11 Del. C. (March 9, 2005). ("Labeling *95-99 a ‘statu tory aggravator’ re as an element does not Principles Association, for Ju- American Bar quire that it the same as statu be treated 2005). (August Jury Trials tory finding elements an offense for the ries & *98.). guilt.” Id. at A.2d 40. Claudio 1991). course, (Del. recognize, of that the

unanimous.”44 The commentary nority jurors gov jeopardy prevents the Double the

We hold that Delaware that a must requires prosecuting Constitution ernment from an individual unanimously find a more once for offense.53 than the same to empowers judge circumstance that The Fifth Amendment of the U.S. Consti just as impose penalty, the subject no person tution mandates that “be unanimously every must determine other put offense to twice the same be capital of the murder. element offense of life or limb...” jeopardy case, In this conviction underlying The idea the Double [of not guilt phase of the trial did establish with Jeopardy is that the State Clause] statutory circumstance. aggravating power all not be resources should its unanimously Nor did the find a statu repeated attempts make allowed to tory aggravating during circumstance alleged of- convict an individual for an phase. Capital defendants are penalty fense, thereby him to embar- subjecting any a jury “entitled to determination of rassment, and com- expense and ordeal an legislature fact on which the conditions continuing him to live state pelling punishment.”51 increase their maximum as well as anxiety insecurity, circum Because the possibility that even enhancing the unanimously found stance was not may he found though innocent case, sentencing procedure jury in this guilty.54 not applied did meet consti Generally, jeopardy double requirements. tutional apply sentencing proc principles do not sentencing proceed D. eedings.55 Capital general ings provide exception an Remedy AIs New The Available rule, however, penalty phase because the Penalty Hearing The Under ordinary of a trial resembles an capital Penalty 2002 Death Statute authority proceeding; trial Finally, must determine the two alternatives based chooses between procedural appropriate remedy, given decision, guide upon its standards imposition flaw in the prosecution undertakes the burden Capano claims the Double sentence. beyond facts a reasonable establishing States and Jeopardy clauses in the United words, jeopardy In other double doubt.56 bar retrial of the Delaware constitutions capital may penalty phase apply to phase.52 conclude that neither penalty penalty phase proceeding trial because the hearing penalty a new constitution bars is like trial.57 recommenda because has United States operate under the statute did not tion 1991 jeopardy did not attach held that “double acquittal. anas 117, DiFrancesco, 589, v. 449 U.S. Ring, 55. States 536 122 S.Ct. 2428. United U.S. at 132, 426, (1980). 66 328 S.Ct. L.Ed.2d 101 Const., V; Const., I Del. Art. 52. U.S. Amend. § 8. 721, 730, California, Monge v. 524 U.S. 2246, (1998); 141 L.Ed.2d S.Ct. 187, States, 184, 355 U.S. 53. Green v. United Missouri, 430, 439, Bullington v. 451 U.S. 221, (1957). L.Ed.2d (1981). S.Ct 68 L.Ed.2d 270 Green, 184, 187-188, 78 S.Ct. 355 U.S. Pennsyl 2 L.Ed.2d 199. See Sattazahn Rumsey, 467 U.S. Arizona vania, S.Ct. (1984). 81 L.Ed.2d L.Ed.2d 588 jeopardy resentencing a case where the death not [in statute does bar de- capital charge in effect at fendant for a where the time crime and trial statute, original sentencing was process because a al- unconsti- unconstitutional] unconstitutional, First, resentencing tutional.61 does permitting capital beit Second, punishment degree increase the sentence. for first murder exist- resentencing supplement does not ed at the time of crimes.”58 The original jury verdict. Courts of other United States Court Supreme has conclud- states, Idaho including Supreme ed that Jeopardy impos- the Double clause Washington Court62 appeals prohibition against es no absolute the im- court63 have holding. followed Arizona’s position of a harsher sentence at retrial having after defendant has succeeded in agree, consistent with the original his conviction set aside.59 reasoning Supreme of the Arizona Court in Supreme of Court Arizona has rea II, Ring jeopardy that double does not bar resentencing capital soned that de First, penalty a new in this hearing case. implicate fendant does not a defendant’s although a defendant can be resentenced protection against jeopardy if double following an reversal appellate of his or defendant has acquitted not been of the original sentence, her Jeopardy the Double death In deciding Ring sentence.60 on Clause of prohibits the U.S. Constitution remand from the States Supreme United of imposing any sentence which the defen II”), {“Ring highest Court actually court of dant impliedly was either or “ac Arizona why quitted” set forth two reasons double the first instance.64 A defen- Florida, 282, 297-98, 58. Dobbert v. 432 U.S. 61. Id. 2290, (1977) (cited 97 S.Ct. 344 53 L.Ed.2d 534, 915, by Ring, State v. 204 Ariz. 65 P.3d Lovelace, 73, 62. State v. 140 Idaho 90 P.3d Dobbert, (2003)) (In 930 the Court reasoned 298, (2004) ("We conclude that there is would, "Whether or not the old statute in the jeopardy imposition no double bar future, attack, withstand constitutional penalty sentencing death on Lovelace’s fol- clearly severity indicated Florida's view of the lowing original vacation of his death sen- degree of punishment murder and of the tence.”). legislature impose upon which the wished to murderers. pro The statute was intended to Maestas, 352, Wash.App. 63. State v. deterrence, vide maximum and its existence 426, (2004) (holding jeop P.3d 428-30 double on the statute provided warning books fair ardy apply when a does not defendant was degree culpability which the State Lovelace, 73, acquitted) (citing 140 Idaho murder.”). ascribed to the act of 534, 298; Ring, 90 P.3d 204 Ariz. 65 P.3d 915) part, remanded 154 Wash.2d aff'd Missouri, 430, 438, Bullington v. 451 U.S. 1030, 24, (Wash. 2005) August 119 P.3d 852 1852, (1981) (cited 101 S.Ct. 68 L.Ed.2d 270 (Order) (citing Hughes, State v. 154 Wash.2d Maestas, 352, by Wash.App. State v. 118, 14, 2005) ("This (Apr. 110 P.3d 192 426, (2004)). P.3d procedure empanel court will not create a juries on remand to find factors 534, Ring, 204 Ariz. 65 P.3d Arizona legislature provide did not because the such a 915, 3, 2003) (April (discussing “Does Harris, procedure...”)). State v. See also Jeopardy Double Clause Prohibit Resen- (2004) Wash.App. 99 P.3d re tencing Capital Under Arizona's Amended manded 154 Wash.2d 119 P.3d 852 Procedure?”). Sentencing After the U.S. Su (2005) (also citing Hughes, 154 Wash.2d preme penalty death ruled Arizona's 192). 110 P.3d Arizona, regime unconstitutional 536 U.S. 153 L.Ed.2d 203, 211, (2002), Rumsey, 104 S.Ct. at the Arizona Court con 164; Bullington, 81 L.Ed.2d 451 U.S. at thirty-one solidated all cases 437, 445, appeal. then on direct 101 S.Ct. 1852. justice in many at a administration of cases cannot sentenced to death dant if the subsequent proceeding in which there is no semblance of the reviewing decided oppressive practices sentencer or court has type at which prosecution prove has its failed double-jeopardy prohibition is aimed.68 appropri- case that is explained, As we have whether a new ate.65 penalty hearing jeop- is barred double ardy depends upon whether Capano jeopardy principles, double Under Here, murder. “acquitted” capital acquittal an on the the sole merits judge’s recommendation final proceeding in the decisionmaker to death cannot be sentence charge.66 on the and bars retrial same' “acquittal” characterized as an because originally had re defendant Where (1) sentence, sentencing time of the of the however, the intent a the capital ceived Assembly under the 1991 General statute Supreme ap Court has not United States jurors’ only a In Po was that the vote served the plied jeopardy. bar of double “recommendation”, (2) Arizona, nonbinding the trial land v. capi that the Court held judge judgment acquittal to at their did not enter a tal defendants sentenced death (3) murder, judge the trial original sentencing proceeding capital and whose on on appeal Capano capital sentences vacated can be convicted murder after were on Be imposi- resentenced to death remand.67 hold penalty hearing. the already cause has sentenced process been tion of the death under the penalty death, hearing a does not penalty to new “acquittal” of the 1991 an statute was subject Capano a harsher sentence. hearing.69 that bars a penalty new trial, At the time the Gener

Second, resentencing does not a Assembly al that the make intended Al supplement original jury verdict. recommendation, judge and that trial though completing a defendant’s trial with whether a sent impose decide death ideal, jurors is judge the same or a defen expressly ence.70 The statute addresses right has an dant no absolute to such possibility recom arrangement: non-unanimous 4209(c)(3)b mendation. provided Section double-jeopardy provision The report that shall “[t]he to the Court ... Fifth Amendment does not mean final vote the number of affir its each put a every time defendant is each on negative ques mative votes competent trial before a tribunal he is intent, find free if the trial fails to end legislative tion.” Given this go entitled to Pennsylvania Such rule would Sattazahn in a final be control judgment. to the insuperable ling precedent.71 create an obstacle Arizona, 147, 155, Florida, Capano 69. Consistent Dobbert v. 65. Poland v. U.S. with (1986). S.Ct 90 L.Ed.2d was on notice the 1991 that he statute potential capital punishment faced the if he Rumsey, at S.Ct. 2305. 467 U.S. Degree. convicted was of Murder in First Supreme Rumsey The U.S. Court’s decision Dobbert, 97 S.Ct. U.S. speaks to defendant situations in which the originally than received sentence other 4209(d) (1991). § 70. See 11 Del. C. death. Poland, 476 U.S. at 106 S.Ct. 1749. L.Ed.2d (2003). Hunter, 684, 688-89, U.S. 68. Wade 93 L.Ed. 974 Supreme The United States Court held sentence of life imprisonment under Penn- sylvania law. The jeopardy Sattazahn double did not Court determined that Pennsylvania under law prevent Pennsylvania the automatic life from retrying acquittal, sentence was not an and there penalty case when the did not contrary.74 no court ruling was state reach a unanimous verdict.72 In Satta- zahn, jury completed guilt phase law, contrast, Under Delaware the trial but during phase following penalty hearing sentence in could not reach a decision. Under Penn- volves a if balancing process to determine sylvania law Sattazahn moved that the aggravating outweigh circumstances discharged and that the court en- mitigating circumstances of the case.75 ter a sentence of imprisonment. life judge Where Delaware state statute required judge to grant performs balancing required by statute Sattazahn’s motion. appeal, On the con- sentence, imposes a life that consti viction was acquittal reversed and the case tutes an on the merits of whether retrial, appropriate. remanded for a new trial. On Sat- tazahn was convicted and sentenced to Statute, the 1991 Capano jury Under rejected death.73 The U.S. did not make the final determination for Sattazahn’s contention that jeopar- double death eligibility.76 We note that a dy protected him when jury dead- jury did do that before the 1991 Death locked at his first sentencing proceedings Penalty Statute became effective77 and a and required the court was impose jury to a present does that under the statute.78 (2003). Id. at probation 123 S.Ct. 732 parole any or or other reduction.” 4209(d)(2). § 11 Del C. 103-105, 73. 537 U.S. at 123 S.Ct. 732. 77. Prior to enactment of the 1991 Death Pen 109-10, 74. 537 U.S. at 123 S.Ct. 732. See id. Statute, alty question of whether a non- 117-18, (O’Conner, 123 S.Ct. 732 J. con jury "acquittal” unanimous constituted an curring part concurring in judgment). opinion was answered Court’s in Rush Pennsylvania Supreme The Court held that (Del. 1985). Pennsylvania’s non-discretionaiy life sentence judge This Court held that a trial committed acquittal of Sattazahn was not an of the death reversible error when it penalty barring instructed the non- prosecutor seeking from jury unanimous death continue deliberations af on retrial because a deadlocked or “hung jury ter it announced that acquittal did not act it was deadlocked re as an on the garding proceedings merits as did the a at issue in Bull recommendation of the death sen Sattazahn, ington time, Rumsey." during penalty phase. Penn. v. tence At the 533, 547, Pa. § A.2d 359 any 11 Del. C. 4209 mandated that lack of jury unanimity recommending 4209(d). § 75. 11 Del. C. imprison sentence results in a sentence of life possibility probation pa ment without of or jury 76. The 1991 Statute read “...the shall Thus, automatically by operation role of law. retire to deliberate and recommend to the jury a before non-unanimous result dur ... Whether the evidence shows be ing penalty phase was considered an ac yond a reasonable doubt the existence of at quittal penalty. of the death aggravating least 1 circumstance...” 11 Del. 4209(c)(3)(a) added). § (emphasis C. "A sen presently 78. The 2002 in effect reads "In or- imposed, tence of shall be after consid statutory aggra- der to find the existence of a ering the recommendation of the ... if vating beyond ... circumstance a reasonable Beyond the Court finds ... a reasonable doubt, must be unanimous...” doubt at least 1 circum 4209(c)(3)(b)(l). 4209(d)(1) § Del. C. "A sentence of (emphasis § stance...” 11 Del C. "Otherwise, added). imposed jury, death shall not be unless the if impose Court shall imprisonment impaneled, unanimously sentence of for the remained of first finds beyond the defendant’s natural life without benefit of a reasonable doubt the existence Statute, hearing proceed. that a cannot Thus before and after the 1991 new on the defendant place Courts “the burden non-unanimous vote on the existence of reliti- to demonstrate that the issue whose statutory aggravating circumstance would actually was gation he seeks foreclose “acquittal” an on that circum- constitute proceeding.”80 Even if decided in the first purposes jeopardy. stance for of double sought under the Capano protection had However, it not of was the intent the Gen- doctrine, we estoppel collateral are Assembly eral non-unanimous estoppel applies. persuaded collateral vote to an acquittal constitute under the hearing has prior penalty Because the statute.79 19.91 acquittal, not an been vacated was sentencing judge Capano’s The case an cannot ultimate serve “determine did not view the recommendation as present purposes issue in the case” for acquittal. judge an Had the trial decided estoppel.81 of collateral acquittal appropriate disposition was the today Our vacates decision statutory alleged circum- procedure un- death sentence because the stance, would so he have said and sen- him, statute, applied der as the 1991 imprisonment. tenced to life constitutionally The fact of flawed. Here, judge the trial found the thereof, the lack planning, substantial or aggravating circumstance substantial by a has determined “valid and not been planning beyond reasonable doubt. Similarly, explained final judgment.”82 acquittal alleged There has been no above, acquittal capital was no there statutory aggravating circumstance in this statute. There- murder under case. fore, col- principles common law neither upon has any provision Dissent relied doctrine nor estoppel lateral estoppel prevents penalty of its another support collateral view Delaware Code83 1181, State, (Del. statutory aggravating of at A.2d least 1 circum Marine v. (e) Swenson, 436, 1993) (quoting stance as enumerated in subsection this of Ashe v. 4209(d)(1). (1970)) §C. section...” 11 Del. "Other 25 L.Ed.2d 469 90 S.Ct. wise, impose Court shall of the sentence ("According the States United imprisonment Court, for the remainder of the defen estoppel doctrine of collateral dant’s of proba natural life without benefit of simply an issue ultimate that when 'means any parole tion or or other reduction.” 11 by a valid and fact has once been determined 4209(d)(2). § Del. C. litigated that cannot judgment, final issue parties any in future law between the same "catalyst” 79. The for the statute "was ”). suit.' imposition of life sentences on defendants by County jury publi in a much New Castle 207(1). § e.g., When a See 11 Del. C. involving capital cized murder case the execu prosecution same is for a violation style tion car murders of two armored statutory provisions upon based and is Cohen, guards.” A.2d State prosecution, is same facts as a former it (Del.1992). In that case was not by prosecution under the barred former penalty death unanimous on the issue of the prose- following The former circumstances: imprisonment of life were im sentences acquittal which has not cution resulted in an degree posed on the convictions of first mur subsequently There ac- been set aside. is an required. der law then The convictions finding quittal prosecution in if the resulted State, appeal. were affirmed on Robertson v. by fact guilty trier of or in (Del. 1993). 630 A.2d 1084 court there was determination warrant a evidence to conviction. insufficient States, Dowling United U.S. guilty finding A a lesser included offense 110 S.Ct. 107 L.Ed.2d offense, acquittal greater of the inclusive is an 668; subsequently although is set Id. the conviction Banther v. (Del.2005). 884 A.2d 487 aside. hearing punishment where the issue of will dures set forth in the 2002 Statute. We procedures comply be decided under respectfully disagree conclude that with the United States and Delaware Con- life imposed. sentence must be stitutions. appeal Capano argued On that a retrial penalty phase of the is barred under the III. Conclusion jeopardy double clause. We decline to The judgment Superior of the Court de Instead, argument. reach this we find nying Capano’s ineffective assistance of that the related but broader doctrine of counsel judg claims is AFFIRMED. The collateral estoppel applies and that ment of Superior denying post- finding 11—to—1 on the existence of conviction imposition relief from the factor of pre- death under the 1991 statute is planning meditation and substantial consti- REVERSED. The death sentence under tutes the law of the case such that the 1991 statute is vacated and this matter estopped State is from relitigating the is remanded for a penalty hearing new statutory aggravating factor in a issue sec- resentencing under the 2002 statute enact ond penalty hearing. majority, Unlike the v. Arizo ed because the decision in we do not jeopardy discuss the double na.84 “[pjrinciples issue because jeop- of double ardy, which are limited to the criminal STEELE, Chief Justice with whom context, are subsumed the broader doc- NOBLE, joins, dissenting Vice Chancellor trine of collateral estoppel....”85 Accord- in part. ingly, estoppel “the doctrine of collateral majority We and the are forced to con- may in bar retrial cases which the Dou- clude that Ring and the Delaware Consti- Jeopardy ble Clause would not.”86 unanimity requirement tution’s together case, if a permitted even retrial is under mandate that we reverse Clause, Jeopardy the Double not per- sentence this case. agree We therefore mitted under the doctrine of collateral es- majority with the opinion all but Part toppel.87 majority II.D. There the concludes that we estoppel “pro- doctrine of collateral can remand this case for a new party hibits a from factual proceeding relitigating in the Superior Court and thus adjudicated.”88 can issue that empanel previously allow the State to a was new Thus, which may before the State seek the “when an issue of ultimate fact has death penalty a using proce- second time the final by once been determined a valid and express pro- 84. The relitigation terms of the 2002 statute the demonstrate that issue whose "apply actually vide that it shall to all he to was decided in defendants seeks foreclose tried, re-tried, proceeding.” Capano sentenced or the first While did not re-sentenced after expressly estoppel argu- its a apply effective date. This Act shall not to make collateral any given finality prior appeal, defendant ment on the sentenced to its effective of the penalty Capano date unless a new trial new and the fact that raised a or hearing jeopardy argument, is ordered in the case.” 73 Del. Laws double which is sub- doctrine, § estoppel ch. sumed under the collateral inappropriate it is not to consider whether State, (Del.2005). estoppel applies 85. Banther collateral to bar a second 884 A.2d 487 penalty hearing. a When life is stake we State, (Del. any argument arguably should consider 86. Marine v. raised, subsumed, 1993). implied appeal. or on Beau, majority general Bancorporation 87. The notes the that A.2d rule 88. M.G. v. Le (Del.1999). "place Courts the burden the on defendant to to and judgment, litigated judgment. respect issue With the third that cannot be parties any in future requirements estoppel, between the same fourth for collateral law suit.”89 To determine collat- against whether the party the the whom estoppel in this re- applies eral case to bar invoked, party doctrine is a in the first was litigation question the of whether a penalty hearing and had full and fair statutory aggravating factor exists in opportunity litigate the issue the first a fact must determine whether question hearing. The is only question whether the judgment essential to and litigated the was satisfied, requirement namely second is judg- by determined a valid and final prior fully adjudi has been that action col- expressed ment.90 We have also or, words, in cated on merits other estoppel requirements pre- lateral more of fact question whether essential cisely as: judgment a valid by was determined

(1) previously the issue is iden- decided judgment. Delaware’s unanimi and final presented

tical one in the with the jury’s 11-1 find ty requirement makes the question; action in aggravating factor a ing statutory on the (2) prior and final for collateral es finally judgment action has ad- valid been

judicated merits; our toppel purposes. on the Given Constitution’s and unanimity applying (3) requirement, party against the doctrine whom “real estoppel collateral doctrine with in party privity is invoked was or that the rationality,” we conclude ism and adjudica- with party prior jury’s unanimously failure find that tion; and present factor only (4) the party against whom the doctrine equiva “functional to it existed is the ed opportu- is had a full fair raised pre- did not finding lent” of nity litigate prior in the issue engage death and victim’s mediate action.91 planning. We conclude substantial examining estoppel issue When collateral going finding the State would bind cases, apply criminal we must not penalty a second prevent forward rule “hypertechnical with the and archaic hearing. book, approach century of 19th pleading but with rationality.”92 realism and in the first procedure used statute, by the 1991 hearing, as set forth third, first,

It clear that majority’s some for the provides support estoppel requirements fourth collateral are finding argument that the satisfied in this case. issue of The first a valid this case not determined whether the circum- judgment. final Under the 1991 stat- of premeditation stance and substantial ute, degree person first convicted jury in planning that the the first of or life could convicted murder hearing 11-1 is issue decided the identical a defendant was con- imprisonment. After that to be in a relitigated would have murder, Moreover, of the trial hearing. degree victed first penalty second hear- question certainly judge separate penalty of is to the a fact essential conducted State, Townsends, Inc., (quoting v. 765 535 89. Marine v. 624 A.2d at 1190 91. Betts A.2d Swenson, 436, 443, Machin, (Del.2000) Ashe v. (citing A.2d State (1970)). L.Ed.2d 469 (Del.Super.1993)). State, (Del.2005) 90. Banther v. 884 A.2d 487 Swenson, U.S. at S.Ct. 92. Ashe v. (citing Taylor A.2d (Del. 1979)). ing, usually jury before the finding that convicted of a structural defect. We there particular the defendant. At the conclu- Supreme fore looked to other U.S. Court sion of the hearing jury the made precedent to resolve the issue. In so' do (1) two on: recommendations whether the ing we examined the six instances where proved beyond State a reasonable doubt Supreme the U.S. Court has found struc statutory the existence of at least ag- one tural error to “ana exist discussed the (2) factor, whether, gravating closely lytical category” we found most preponderance evidence, aggra- analogous: the defective reasonable doubt vating outweighed circumstances miti- instruction at issue Sullivan v. Louisia gating jury only circumstances. While the explained na.94 We Sullivan and related issues, made a recommendation on it these analysis it to the error harmless under the reported particular numerical votes to the 1991 statute as follows: jury’s court. The role was then contem- Sullivan, charged the defendant was plated merely advisory, to be however. first-degree with murder in the course Only judge authority the trial had the committing robbery. 113 S.Ct. at statutory find the existence of a aggrava- Although there was circumstan- ting impose circumstance and to connecting tial evidence defendant Thus, bar, sentence.93 in the case at after murder, argued defense counsel jury’s recommendation 11- vote of closing that reasonable doubt existed as 1 on the existence of the aggra- identity and intent. in- Id. While vating circumstance, the trial judge finally structing jury, judge gave the trial determined that supported the facts what the State Louisiana later con- statutory aggravating factor premedita- ceded anwas unconstitutional definition tion and substantial planning. of reasonable doubt. Id. The defendant procedure required by the 1991 subsequently convicted and sen- supports majority’s statute argument tenced to death. Id. jury’s advisory finding of fact was Supreme began The United State not “valid and final” because the trial analysis by noting its that “the judge ultimately made the determination required by verdict the Sixth Amend that the statutory aggravating factor exist guilty beyond ment is a verdict of finding, ed. This not the Sullivan, doubt.” reasonable recommendation, arguably is the valid and (“It self-evident, think, at 2081 judgment upon final which this Court requirement the Fifth Amendment should focus in applying the collateral es proof beyond a reasonable doubt toppel bar. This superficially appealing requirement Sixth Amendment argument mark, however, misses the interrelated.”). reasons verdict are we noted Brice v. Accord State. ingly, the in defective reasonable doubt In Brice we answered four certified struction denying had the effect of questions of law relating impact right defendant his constitutional to a U.S. Court’s decision in had guilty beyond determination of on Delaware’s death Id. reasonable doubt. 113 S.Ct. at 2081- procedure. alsoWe discussed the issue of (“[T]o hypothesize guilty verdict structural error relates to the 1991 statute and the 2002 statute. was never fact rendered —no We conclud- provide ed that did not inescapable a basis for a matter findings how the (Del. 93. Brice v. 815 A.2d 94. 508 U.S. 113 S.Ct. 124 L.Ed.2d 2003). rendered, the 1991 under that was never might be—would support that verdict (em- a statu- judge’s finding of the trial guarantee”) statute jury-trial violate the usually circumstance will tory aggravating “there phasis supplied). [was] Because jury finding advisory an supported meaning no verdict within ,[t]here statutory ag- of the same of the existence [was] the Sixth Amendment.. As we said circumstance. gravating object... upon which harmless-error no Brice, find- jury’s advisory numerical operate.” Id. 113 S.Ct. scrutiny [could] may cast object upon which ing This is (emphasis original). at 2082 That error review. of harmless error because the lens amounted to structural is, case where hypothetical effect of in the impossible quantify the exis- at about constitutional error. Id. makes a recommendation factor, statutory aggravating tence of finding that makes the final judge the trial under the 1991 Stat Sentences rendered factor ex- the same the same consti do not suffer from ute the defen- First, ultimately sentences sen ists tutional defendants defect. the trial In the event that dant to death. Delaware’s 1991 scheme tenced under later found to be finding of fact is guilty judge’s not denied verdict were Second, unconstitutional under impermissibly doubt. beyond a reasonable Constitutions, or United States numerical Delaware advisory jury specific made jury’s reviewing court can look statutory findings as to the existence of finding “save” need recommended aggravating circumstances. We proposition for the Brice stands findings sentence. hypothesize not allowing rendered; that results from any rath error never that were factors statutory aggrava- er, judge the trial to find finding is the numerical beyond harmless ting circumstance is may cast the “object” upon which we in the case where Because reasonable doubt harmless error review. lens of the same adviso- jury unanimously makes the 1991 Statute does any error under existence of the statu- ry finding error about the any the structural into fit factor. tory aggravating categories delineated the United Court, harmless error States jury’s finding is fact that the The mere analysis appropriate.95 is advisory impermissi not render it an does the harmless object upon ex- which base language from Brice ble emphasized The In Brice we also discussed a harmless error review. why possible it is to use plains prob Mississippi96 any alleged Ring potential Caldwell analysis to review error prob under the 1991 statute.97 in the event lem under the 1991 statute error juries that under the 1991 statute lem was sentencing judge’s finding on that the misled into be may improperly have been statutory aggravating factor existence ultimate decision on lieving that the unconstitutional. ultimately found to be aggravating fac Sullivan, rea- existence the defective Unlike where As we noted tor rested with the court. doubt instruction rendered sonable Brice, accepted, argument were any “[i]f thus harm- nullity verdict a error ‘object’ harmless upon an the which required have error review would less numerical analysis operate would a verdict hypothesize court to appellate —the 97. Brice, added). Brice, at n. 13. (emphasis 815 A.2d 86 L.Ed.2d (1985) representing finding statutory phase capital proceeding. vote of Once a aggravators arguably degree defendant is convicted of first mur- be tainted —would jury may der the State does not have the same because the have been misled in having complete opportuni- interest one believing into finding its on the issue ty to to have defendant sentenced death. ultimately meaningless.”98 was dis-We short, In Society neither nor the State as that, argument noting missed this “the representative legitimate its has a interest holding in ... Eighth Caldwell rested on in continually retrying a defendant after a grounds, upon Amendment and not a find- penalty phase vote in the non-unanimous ing structural error.”99 on the of a statutory issue existence The in may conclusion Brice that we aggravating necessary factor to death cast the lens of harmless error review qualify Very a defendant. importantly, jury’s upon advisory finding that the Assembly the General recognized pro- statutory aggravating circumstance exists vided for policy both the 1991 stat- any argument undercuts that we cannot ute and the amended 2002 statute. jury’s use finding of fact as the valid Statute, The 1991 under which judgment upon and final premise which to sentenced, provided “any person Indeed, collateral estoppel. Brice seems who is of first-degree convicted murder to indicate that very issue here is shall punished by by imprison- be death or similar to a case where we a trial reverse ment for the remainder his or her natu- judge’s grant of a party’s judg- motion for ral probation life without benefit of or ment notwithstanding the verdict and di- reduction, parole any or other said rect trial judge to reinstate the determined in accordance with this words, finding. In other judge’s the trial section.”100 procedure The set forth in finding on statutory the existence of a obviously contemplated Statute superfluous factor is in the possibility of the death im- penalty being advisory case when there is an jury finding posed. In judge the event that the could on the existence or non-existence of a stat- not find the factual legal conclusions utory aggravating factor because we can necessary impose penalty, merely reinstate the finding expressly provided statute that the defen- event that we proce- must invalidate the imprisonment dant was to receive life dure which the trial judge found the only short, penalty.101 alternative exist, aggravating factor to com- that, legislature expressly recognized pelling us to invalidate judge’s the trial put colloquially, “death is different.” judgment of death. Under the 1991 statute and the 2002 stat- in giving interest the State one ute,102 no possibility there is second complete opportunity to convict those who penalty hearing: options binary. are applies have violated its laws only the The defendant can be sentenced trial, guilt phase of a not in or to imprisonment; provi- life there is no 98. Id. defendant’s natural life without the benefit of reduction.”). probation parole any or or other 99. Id. 4209(d)(2) § 102.The 2002 Statute in includes § 100. 11 Del. C. 4209 language the same as that in the 1991 Statute "Otherwise, 4209(d)(1) (2) ("A impose the Court shall a sentence § C. 11 Del. sen- imprisonment imposed for the remainder of the tence of death shall be ... if .... [otherwise, impose the Court defendant’s natural life without the benefit of shall sentence imprisonment parole any probation for the remainder of the or other reduction.” or a At penalty hearing. ready Remanding sion for a retrial of have one. this case trial, however, the guilt phase with instructions hold another penalty binary. options hearing give are not A defendant can would an opportuni- the State OR, or not for guilty guilty ty get jury finding be found vari- a a unanimous sec- reasons, a ous can be tried get defendant ond time after failed to that result second, third, or can es- fourth time—he the first time.103 that we must ap- Given sentially many be retried as times as there collateral ply estoppel doctrine legal are reasons the retrial. criminal case not “hypertechnical with the approach and archaic of a 19th century Thus, although during an 11-1 verdict book, but pleading with realism and ra- phase of the trial not con- guilt would tionality,” the on the vote issue acquittal, an would stitute and the State the statutory aggravating of whether fac- defendant, retry our permitted existed tor case at bar must consti- statutory framework that an contemplates going tute the law of case forward. A 11-1 verdict on the of a statuto- existence simply jury unanimously has failed to find ry aggravating during penalty factor beyond reasonable doubt that the statu- phase differently. must be treated Under tory aggravating factor exists. According- binary options stat- case, ly, statutory this aggravating utes, jury finding the 11-1 must be treat- We, therefore, not factor does exist. can- ed as an on merits determination not penalty remand case for a second statutory aggravating factor does hearing possibility where is a there purposes. exist for collateral estoppel finding or vote different than the one There is no authorization of a penalty in the first hearing. doctrine extremely expensive, pen- second trial-like estoppel precludes of collateral a second alty hearing after that has heard hearing. Respectfully, we are presented lengthy both the evidence at a compelled majority’s dissent from the guilt phase lengthy penalty phase may conclusion that the empanel State an- fails to find that the statuto- unanimously other for a hearing. second ry aggravating factor to it ex- presented case hypothesize ists. we need not question determination on the

whether the factor doubt; beyond a al-

exists reasonable Statute, apple 103. Note that under the 2002 in the bite at the third because of the "Other- that the State 4209(d)(2). event failed to obtain a unani- language §in wise” finding fact mous on the factor penalty hearing, get a at a second it would not notes participate more actively that “at early least as as the fourteenth when decisions must be unanimous. century agreed it was that verdicts al., Inside the JURY Reid et Hastie should be commentary unanimous.”45 The (1983); Hans, Valerie P. The Power of explains further prefer- the rationale for a Twelve: Impact Jury The Size and of unanimity: ence for Unanimity Jury on Civil Decision preference historical for unanimous Making, (2001); 4 DEL. L. REV. juries society’s reflects strong desire al., Dennis J. Devine et supra, at 669. accurate verdicts thoughtful based on A non-unanimous decision rule allows thorough by panel deliberations juries quorum to reach a without seri representative of community. Im ously voices, considering minority there plicit in preference this assump is the by effectively silencing those voices and tion that likely unanimous verdicts are negating their participation. This fos to be more accurate and reliable because public ters a perception of unfairness they require the most wide-ranging dis and undermines acceptance of verdicts cussions—ones that address per legitimacy and the of jury system. every juror. suade Empirical assess Kim Taylor-Thompson, Empty Votes in ment support tends to assumption. Deliberations, Jury 113 Haev. L. Rev. suggest Studies that unanimity where is (2000). 1261,1315 required, jurors evaluate evidence more Jury verdict unanimity has been required thoroughly, spend more time deliberat in Delaware for centuries.46 ing and take more ballots. Dennis J. recognize jurisdictions that some do al., Devine et Jury Decision Making: 45 require jury unanimity,47but non-Dela- Years Emprical Research on Deliber precedent ware does not control our inter- PsyChol. Pol’y ating Groups, 7 &L. Pub. pretation of the Delaware (2001). Constitution contrast, where una “[tjrial expressly which requires nimity is not required juries tend to end jury shall be as deliberations heretofore.”48 “Unanimi- once the minimum number of a quorum ty jurors is ... required reached. Id. to reach a verdict since such was the common Unanimous law verdicts protect also law, representativeness rule.”49 Under the common the ex- point of view —each must be jurors pectation considered and all per- was that the elements a crime suaded. Studies have shown mi- by jury.50 would be determined 44. I, Id. at 21. 48. Del. Const. Art. Section 4. 45. Id. (quoting Claudio 585 A.2d at 1297 Foun (1971)). tain v. 275 A.2d 251 See Claudio, 585 A.2d at 1297-98. It is also Holland, Randy lury J. State Trials and Fed the federal rule in all criminal cases. Fed. R. Constitutionalizing eralism: Common Law 31(a). Crim. P. Principle We also note that Concepts, 38 Val. U.L. Rev. "juries the ABA standards states should have 12 members.” This recommended mod- Arizona, 584, 612, el has also been the law of Delaware for (U.S.2002) (Sca 153 L.Ed.2d 556 centuries. Id. lia, J., concurring) (Aggravating factors mak at, Compare David B. ing eligible Rottman et defendant for the United State subject requirements Court Or "must be Department to the usual States Justice, (2000) ganization (some law, 1998 tbl. 42 requirement states the common and to the en Constitution, require relax traditional size and verdict shrined in our in criminal cases: ments) http://www.ojp.us- they available jury beyond must found doj .gov/bjs/abstract/sco doubt.”). 98.htm. reasonable

Case Details

Case Name: Capano v. State

Court Name: Supreme Court of Delaware

Date Published: Jan 10, 2006

Citation: 889 A.2d 968

Docket Number: 131, 2005

Court Abbreviation: Del.