Ferguson v. State

ap- introduction of such evidence. If it pears probable impact of the evi-

dence is to credibility attack the of the vic-

tim, the trial court has the discretion to

require screening the evidence

through process. case,

In this court found that the lower likely substantially

evidence affect the credibility significantly

victim’s without clari-

fying circumstance, other issues. Under judge properly

the trial discre- exercised his deny

tion to introduction of the evidence for comply

failure to 3508. reasons, foregoing

For judgment Court is REVERSED. The

matter is REMANDED for a trial. new FERGUSON,

Cornelius E. Defendant

Below, Appellant, Delaware,

STATE of Plaintiff

Below, Appellee. 566,1992 568,1992.

Nos.

Supreme Court of Delaware. 3,May

Submitted: 1994.

Decided: June 1994.

As Corrected June

Conspiracy in Degree. First After 16-18, hearing, held on November jury unanimously State had aggra- established three vating beyond circumstances a reasonable unanimously doubt. The also circumstances found to exist outweighed mitigating circumstances 4209(e)(3). § found to exist. Del.C. judge, undertaking The trial the identical statutory analysis, arrived at the same ulti- 4209(d). mate conclusion. 11 sentencing Court’s rationale was set forth in an eighteen-page decision. The Su- perior Ferguson sentenced by injection death lethal for each of his con- Degree.1 victions for Murder in the First An appeal automatic was docketed with 4209(g). Ferguson’s Court. 11 Del.C. attorney timely appeal. also filed a notice of This Court appeals consolidated these and stayed the execution of completion sentence until the of its review. Ferguson’s Contentions appeal, Ferguson this direct has raised eight First, Ferguson claims of error. con- tends pre- that because Delaware law now only advisory scribes jury, function for the striking jurors for cause based expressed their reservations about the death O’Donnell, Bernard J. Office of Public De- impartial jury denied him an com- fender, Wilmington, appellant. posed of a peers.” “cross-section of his Sec- Fairbanks, (argued), Richard E. Jr. and ond, Ferguson argues right that the same Donovan, Jr., Timothy Justice, Dept, J. impartial jury impaired a by Superi- Wilmington, appellee. juror, or Court’s excusal for cause of one stated concerning whose beliefs the death VEASEY, C.J., MOORE, WALSH, Before strong prevent were not so as to HOLLAND, HARTNETT, JJ. substantially impair juror’s fulfillment of Banc). (constituting the en Third, Ferguson argues his duties. that the Superior Court abused its discretion when it HOLLAND, Justice: denied following his motion for a mistrial defendant-appellant, Fergu- Cornelius argument jury. State’s rebuttal (“Ferguson”), son was convicted after a Fourth, Ferguson trial in the Court on two counts of imposi- asserts that the Degree; Murder the First two counts of tion of a sentence of death was constitutional- Weapon During ly impermissible, Deadly Possession of a since cir- Felony; outweigh Commission of a and one count cumstances did not twenty years Degree, Ferguson First was also sentenced to was sentenced to five incarceration, incarceration for each conviction of Possession years followed six months of Deadly Weapon During the Commission of a confinement at Level IV. Conspiracy Felony. For the conviction of (the “Mall”) Fergu- Claymont, “beyond doubt” Delaware. a reasonable accompanied Tyrone Hyland punishment was an inappropriate and death son was Fifth, Fergu- “under all the (“Hyland”).2 circumstances.” in this appeal son contends that the Hyland in Ches- lived Both concerning the instruction to Court’s ter, appar- Pennsylvania. Hodges, who was mitigating cir- weighing drug Wilmington, had ently living dealer misleading materially cumstances was half-kilogram of negotiated purchase plain constituted error. $10,000 directly Hy- from cocaine for either Sixth, Ferguson sen- contends that Hyland party, third or from a land Eighth Amend- tence of death violated the Hodges arranged to acting as middleman. felony ment murder as because Hyland at the Mall. meet adequate- circumstance does not friend, (“Wig- Wiggins a Hodges had Alvin ly persons eligible the class for a narrow of accompany Wiggins him gins”), to the Mall. Seventh, Ferguson con- death sentence. years these old at the time of was seventeen in the weighing tends that drug a Wiggins apparently was also events. against mitigating circum- trial. Wiggins testified at dealer. stances, improperly advisory was permitted to “double count” the they to According Wiggins, to drove before the murder circumstances that Mall, Hodges gave plastic bag Wiggins a robbery committed and was a packages, of which holding two smaller each pecuniary gain. Finally, Fer- committed $5,000 They in cash. then drove contained guson contends that of a sen- Wig- parked in lot. the Mall and the lower pursuant procedures tence of death to the they that after arrived at gins testified the 1991 the Delaware death amendments to Mall, Hodges packages took one of two statute, penalty Ferguson com- enacted after stay in his car money and instructed him to offenses, post mitted his violated the ex sign facto until Hodges until he received from clause of the United Constitution and States he returned.3 Process the Fourteenth the Due Clause of passage- Hodges then left and entered Amendment. upper lot of the way leading parking to the carefully This Court has considered each Wig- Hodges longer-visible was no Mall. contentions. We have conclud- Hodges approx- gins. Wiggins waited for Ferguson’s arguments dem- ed that none time, ninety During minutes. that imately also onstrates reversible error. We have Hodg- unsuccessfully attempted to contact he proportionality man- undertaken review learned “beeper.” Wiggins When es via his statute. dated Delaware death Mall, he had been shot at that someone imposition of a We have determined that the away. drove Ferguson sentence of death satisfies tape Ferguson gave a recorded statement requirements of 11 Del.C. the statute. September Delaware State Police on 4209(g)(2). judg- Accordingly, all of the at evidence It was admitted into 1991. Court, including those ments of In his during the trial State’s ease-in-chief. injec- Ferguson sentencing lethal statement, he was Ferguson admitted that tion, are affirmed. by Hyland to in a car driven passenger Fergu- August night of 1991. Mall on the Facts sitting in the back that he was son stated Ferguson reflects shot and The record car. seat Troy Hodges (“Hodges”). The homi- killed they arrived Ferguson, According to when August on place night cide took Hodges Mall, parked Hyland the car. parking Mall at the lot of the Tri-State explain Wiggins Hodges did not plea guilty testified that Hyland to Murder in 3. entered the circum- purpose of these actions. From the stances, Degree. Hyland to 15 the Second was sentenced however, Wiggins he concluded years of incarceration. assisting drug ain deal. would be got passenger into the front seat of the car. States require Constitution did not the strik- Hyland Hodges argued then ing about mon- of these four veniremembers in order to ey drugs. According Ferguson, Hy- impartial jury, ensure an because the Dela- clandestinely gave land then gun. him a specifies ware death statute Ferguson gun stated that already advisory opinion, renders an which is cocked when he Ferguson point- received it. binding upon the trial court in determin- gun Hodges.4 ed the appropriate sentence. 11 Del.C. 4209(d). See Dawson v. Hyland Hodges argue. continued to (1994); Sullivan v. Ferguson although stated that the car was Del.Supr., 636 A.2d moving Mall, slowly Hodges towards the Witt, generally Wainwright v. opened the car door and tried to leave the car. According Ferguson, Hodges then slapped gun, causing it to “accidental- acknowledges this Court ly” single fire a shot. initially rejected claimed that argument an identical he Hodges Cohen, did not know had been wounded State v. Del.Supr., 604 A.2d 855- died, days (1992): until later. Although punish- not the final arbiters of (“Cohen”) Stewart Cohen testified that on ment, jurors play important still a vital and 5, 1991, night August he inwas role in sentencing procedure. parking lot of the K-Mart at the Tri-State jury sits as the conscience of the communi- Mall. Cohen stated that “pop- he heard a ty in deciding whether to recommend life ping sound.” Cohen turned and saw a blue imprisonment penalty. Any or the death Chevrolet moving slowly Cavalier personal prevent views which parking would its lot. Cohen stated person he saw a impartially members performing from jumping shoved or out of the car. Cohen responsibility solemn in person testified that accordance with then ran towards him the trial court’s collapsed impermis- on instructions are the sidewalk. contrary sible and to law. An autopsy Hodges revealed that died of (citation omitted). Id. at 856 This Court hemorrhaging massive single gun- due to a subsequently portion adhered to that of its shot wound. The record reflects that separate opinions. Cohen decision in bullet, two behind, which was fired from entered State, 61; Dawson v. 637 A.2d at Sullivan v. his left through body side and travelled his State, Ferguson’s plain 636 A.2d at 939. upward an trajectory. Hodges’ The hole in argument error provide any analyt- does not shirt and the wound in his torso indicated ical basis for this holdings that Court to revisit its gun the muzzle of pressed had been Cohen, against Dawson and Hodges’ body Sullivan on the same when the shot was issue. fired. Superior Court found that each of the Striking Jurors Cause for four stricken veniremember’s views would Penalty

Death Reservations “prevent[ed] substantially impair[ed] have or contends, performance for the first time of his [or her] duties as a appeal, on striking potential that the juror of four in accordance with [its] instructions and jurors Witt, for cause denied him impartial jury Wainwright [or oath.” her] v. 469 constituting 424, 105 peers.” “cross-section of his (quoting U.S. at S.Ct. 852 Adams Illinois, generally Witherspoon Texas, See 391 v. 448 U.S. 100 S.Ct. (1980)). U.S. State, S.Ct. 20 L.Ed.2d 776 L.Ed.2d 581 See Sullivan v. jurors The record reflects that four respect 636 A.2d at 939. With three of panel veniremembers, were stricken from the venire for cause these four does they expressed personal after had judge reserva not contend that the tions about the of a finding sentence of abused his discretion Ferguson argues death. Wainwright the United standard was satisfied. See It gun belonged Ferguson. was later determined that the 1150, Therefore, enunciating be A.2d standard Murphy v. (1993). Therefore, striking of death-qualifying those trial applied courts proper and veniremembers for cause was jury, Supreme Court has the United States provides no for a reversal of basis juror proved with held that bias need be sentences death. Accord Dawson clarity,” practical rea “unmistakable 61; 637 A.2d at 636 A.2d at Sullivan may not know “venire[members] son that Cohen, 939; at 856. imposing they with how will react when faced sentence, may unable to or be death Striking For Juror Cause articulate, may their true wish hide Penalty

Death Reservations 424-25, at 852. feelings.” Id. at No Abuse Discretion to review Accordingly, required this Court findings great judge’s a trial deference respect With to veniremember Juan concerning juror impartiality. DeShields (“Kelson”), Ferguson does contend Kelson abused his 486 U.S. finding discretion Kelson should be Witt, also Wainw 100 L.Ed.2d 217 See Wainwright v. excused cause. Witt, 428-29, 412, 428-29, 854-55, right S.Ct. (1985). Ferguson argues at 854-55. point during voir that because at one dire judice, In the case sub “try asserted that he would to do the Kelson judge carefully extensively questioned right thing” as the law and the evidence on Kelson about his views veniremember required, not have trial could found specifically penalty. Kelson was asked adequate Wainwright for cause under strik he believed that he could about whether ing Kelson from the venire. We have care judge’s notwith- abide instructions fully entirety reviewed in its the record of standing those At Kelson stated views. first involving voir Kelson. dire the that he could follow law. he believed expressed The record that reflects Kelson however, Upon subsequent questioning, Kel- juror, explaining reluctance to serve as uncertainty. Ultimately, son Kelson voiced dosing he “known was for off’ and that [sic] he that he did not know whether could stated sitting person.” he “not a was When the personal by abide set his beliefs and aside judge initially inquired trial about Kelson’s judge’s the instructions. penalty, views on the death Kelson stated ability Superior judge’s unique The Court it,” “totally approve that he did not but during the to assess Kelson’s demeanor voir by thought he be able abide the would to dire entitled to deference. The record dire, Later judge’s instructions. in the voir support Ferguson’s allegation does not however, expressed Kelson reservations by Superior discretion the Court abuse of ability judge’s about his to follow the instruc- striking Kelson the for cause. from venire know, despite personal tions “You his views: dire, during responses voir con Kelson’s I, think, couldn’t, I, really you I I couldn’t—I context, support reasonably and strued know, give—true feelings really I couldn’t judge’s finding that Kelson Court sentenced, give anybody put a vote to have abide his oath as a death, would be unable to you I Kelson know. couldn’t.” then State, Del.Supr., juror. Riley 496 he stated that he was uncertain whether denied, cert. 478 judge’s because A.2d could follow the instructions placed he in that situation L.Ed.2d 743 had never been U.S. Lehman, (1986). Compare before. F.2d Lesko — (3d Cir.), 1527, 1547-48 Wainwright, Supreme —, L.Ed.2d clarity “[djespite stated that lack of [a] record, printed ... there will be situations by Prosecution Guilt Phase Remarks judge trial the definite is left with where During rebuttal the State’s prospective juror impression that a would be trial, prosecu guilt Ferguson’s impartially phase of faithfully apply the unable to jury: 425-26, following remarks to at at tor made the Id. 852-53. law.” point Thompson (citing [Defense counsel] makes a that the (1979)). prove beyond has its case a rea- gentlemen, sonable doubt. Ladies and it’s traditionally applies This Court something great not we difficulty have analysis three-part preju to determine the with, philosophically intellectually. flowing prosecutorial improper dice from ar Judge going The to define the terms gument. Hughes very specifically you, for but remember A.2d 559 The three determinative We, State, kapuej proving this. been analysis factors in that are “the closeness beyond guilty ease, centrality a reasonable of the issue affected defendants years [alleged] error, [emphasis steps doubt taken added]. mitigate the effects of the Id. at 571 error.” Ferguson’s immediately defense counsel ob- States, Dyson (quoting D.C.App., v. United jected. prosecutor qualified The promptly (1980)). 127, 132 We have reviewed defendants, by stating: his remarks “Not all Ferguson’s allegation error in accordance certainly. I’m sorry.” with those three factors. hearing grounds After defense counsel’s of proving State’s burden the defen- objection, judge in- guilt beyond dant’s a reasonable doubt is “Obviously, structed as follows: always proceed- a central issue in criminal guilt issue before the this case is the However, ing. against the State’s case Fer- defendant, or innocence of bur- guson trial, was close. evidence den is on the State establish that in this including tape recorded state- beyond case a reasonable doubt.” Defense ment, per- established sought counsel no additional curative instruc- Hodges. son who shot killed The State’s tion from the trial time. Hodges forensic evidence demonstrated that by gun pressed against shot which was days Two after the rendered its ver- body point range. and fired at blank trial, guilt phase dicts in the objective apparently That contra- evidence his defense counsel moved for a mistrial on by Ferguson dicted the events in his related prosecutor’s basis aforementioned police. statement evi- State’s Super.Ct.Crim.R. remarks rebuttal. dence also indicated that the murder was 26.3. The denied the by Hy- plan committed furtherance of a judge’s motion. The trial denial was based Ferguson Hodges. land and to rob upon ground objection the that the defense The record does not reflect an abuse of jury had been sustained and the had been by Superior denying the discretion Court in given a curative instruction. Ferguson’s Hope motion for mistrial. v. In appeal, Ferguson this contends State, 570 A.2d at The 1189. record reflects Superior by that the erred fail Court although prosecutor’s the broad remark specifically jury to to instruct the disre ability the concerning State’s historical gard prosecutor’s Compare the remark. consistently proof sustain its burden of State, 861, Del.Supr., Diaz v. 508 A.2d 866-67 admittedly improper, prejudice it did not State, (1986); Del.Supr., Boatson v. 457 A.2d Ferguson’s rights guilt substantial in the (1983). 738, Ferguson argues that State, 743 the phase his trial. of Pennell Del judge’s inadequate . (1991). trial instruction was Supr., A.2d 602 51 Under the potential resulting prejudice cure the from circumstances, Superior prompt the Court’s prosecutor’s the reference to the State’s abil correcting by curative instruction the remark ity guilt the of other defendants conjunction prose establish prosecutor, with the applicable self-correction, beyond a doubt. The reasonable cutor’s own immediate appellate regarding adequate any potential prejudice of review standard to cure of Ferguson might Court’s denial motion have been created State, Hope for a Del. mistrial abuse discretion. comment.5 See Kornbluth (1990). State, (1990) Supr., 570 A.2d 1189 580 560 centrality per require judge expressly issue did se that the Court instruct not

779 4.209(d) Sullivan, the con- this Court reaffirmed Section the evi- stitutionality preponderance of of the Preponderance Evidence aggrava- weighing dence standard Aggravators Mitigators Weighing Id. See ting mitigating circumstances. that, contends under 639, 650-51, Arizona, Walton v. U.S. subjudice, aggra case unless the facts of the 3055-56, L.Ed.2d S.Ct. vating outweighed mitigat circumstances Maryland, (plurality opinion); Mills v. beyond a ing circumstances reasonable 367, 387, U.S. doubt, and unless a of death was an (1988). sentence not cited L.Ed.2d has appropriate punishment under all of the cir legal precedent supporting any intervening cumstances, contrary. Fergu- of death constitutes sentence conclusion to the Because prohibited by punishment persuasive and unusual “has no constitution- cruel son asserted holding[s]” in Sulli- al our Eighth Amendment to the United basis to reconsider States Const, Cohen, decisions. VIII; van and we adhere to those amend. Constitution. Accord- 4209(d). 636 A.2d at 948. Sullivan v. The record reflects that ingly, Sulli- for the same reasons stated Ferguson did not this issue raise before Cohen, we conclude that van Accordingly, Superior Court. we review this present merit. contention without 8; plain Supr.Ct.R. error. contention Wainwright Jury Instructions 1096, 1100, Materially Misleading Not (1986). 236, 93 L.Ed.2d 161 Plain No Error Ferguson acknowledges that reflects that when Su The record initially rejected argument State v. proposed perior reviewed Cohen, Del.Supr., 604 A.2d counsel, Ferguson’s with instructions recently rejected This Court more judge spe attorney requested trial that the argument in an identical Sullivan con cifically that it should instruct Del.Supr., 636 A.2d We mitigating sider whether recognized analyzing “in Sullivan that outweighed aggravating circumstances. regard proper proof standard to the lan prosecutor object to this did statutory requirement balancing for the although expressed he some concern guage, circumstances, “[ajdds language that the some confusion.” holding judge, this Court’s Cohen was based in the absence precedents Supreme objection agreed of the United States Cohen, Fergu (citing requested by Id. Court.” additional instruction 851). by given attorney.6 son’s The instruction offender, pensities disregard improper that the even remark giv though such an instruction could have been outweigh the mit- found to circumstances exist See, State, 866-67; e.g., at en. v. 508 A.2d Diaz igating to exist.” circumstances found State, Moreover, v. 457 A.2d at 743. the Boatson we in another I if could throw would ask re record reflects that defense counsel did not sentence, mitigating circum- whether the “Or jury quest judge give an that the trial the instruc outweigh aggrava- the to exist stances found disregard improper remark. tion to the exist,” ting giving more found to circumstances way the a It seems to me sense. colloquy balanced the and counsel on 6. The between of person subject prayer leading a language the conference was as it's almost this is like aggravators follows: path in the direction down the of Honor, guess Your I COUNSEL]: [empha- [DEFENSE happen like to would not see which we thing your preliminary instructions. the first sis added]. only any thing me the that causes concern And I Adds confusion. some [PROSECUTOR]: time, page guess at this first full under I the going to any harm in it. I’m not don’t see two, may number where I be track- realize argument, your Honor. make law, is, but me here the what concerns read, whether "Or THE So it would COURT: evidence, "by preponderance the a whether ag- outweigh the mitigating the circumstances weighing aggra- evidence in after all relevant gravating found to exist.” circumstances mitigation upon par- which bears the vation your you, COUNSEL]: Thank [DEFENSE details of the commis- ticular circumstances or pro- Honor. of the offense and the character and sion stated, pertinent statutory aggravating as a circumstance to part: felony murder. weighing mitigat- In aggravating the appeal, Ferguson In this contends the ing circumstances, question it not a of Superior Court as a erred matter constitu- each, mere numbers of but rather the rela- by law applying tional the Delaware death weight tive compared of each as to the a statute in manner failed You others. must then wheth- determine “genuinely narrow class of defendants er, upon preponderance based of the eligible penalty” required by for the death evidence, say greater by is to Eighth Stephens, v. Amendment. Zant evidence, weight of the 2733, 862, 877, outweigh mitigating factors factors. (1983). that, argues L.Ed.2d 235 emphasize I you want even do find if statutory aggravating because circum- the existence [a] robbery essentially duplicates stance of an nevertheless, you may, circumstance con- offense, felony murder, capital element of the preponderance clude based requisite narrowing did not occur. mitigating evidence that circum- previously This Court has addressed simi outweigh aggra- stances to exist found lar contentions found be them to without vating [em- to exist found State, Del.Supr., merit. Whalen v. 492 A.2d phasis added]. State, (1985); Riley 565-69 When objection there is not an trial, challenging this Court claims reviews U.S. 92 L.Ed.2d 743 appeal plain instructions on for error. (1986). Whalen, In we “it held that is not State, See Dawson allow unconstitutional to consideration of the (1994). review, however, Plain error as underlying felony as a oversight. encompass sumes does It not felony-murder circumstance in case.” conscious, part tactical on the decisions Riley, In Whalen 492 A.2d at 568. 103(d); trial counsel. D.R.E. Tucker holding. Riley we reaffirmed this Del.Supr., 564 A.2d 496 A.2d at 1021. Subsequent to this Court’s decisions case, Ferguson’s In this trial counsel re- Riley, Whalen United States Su quested Ferguson’s appellate the instruction preme prin Court clarified the constitutional attorney argues now was erroneous. The ciples narrowing involved in the function re record reflects that the instruction quired Eighth Amendment. Lowen appeal challenge seeks to on requested Phelps, trial, as a “deliberate tactical maneuver” at field Lowenfield, expressed purpose “balancing” rejected challenge Supreme Court significance statute, Louisiana death even where weighing process. circumstances in the the sole circumstance found Tucker v. 1125. Accord- was identical to an element

ingly, Ferguson has failed to demonstrate capital first-degree offense of murder: plain appeal. error on that issue “aggravating The use of circumstances” is Felony Murder itself, end in but means of [one] Eighth Narrowing Amendment narrowing genuinely the of death- class During penalty hearing, Fergu the persons eligible thereby channeling and statutory aggrava son moved to strike the jury’s the discretion.

ting commission circumstance that he was of a robbery engaged respect to his the ^{[*] [*] [*]} * * * felony jury for sentencing conviction murder. 11 Del.C. The fact that the is also 636(a)(2), 4209(e)(l)j. §§ aggra- an required to find the existence of Thus, vating part Court denied the to strike. the is no motion circumstance addition jury permitted robbery constitutionally required narrowing was to consider the of the process, aggrava- Ferguson’s argument actually a and so the that the chal- fact ting duplicated lenge “legislative policy,” circumstance one of the reflected the 4209(e)(2), crimes, crime make in- elements of the does not that “certain Section murder, constitutionally cluding felony sentence infirm. the commission of a the killer to a expose should actual death 244-46, at In Id. 108 S.Ct. at 554-55. Low A.2d 567. at sentence.” Whalen enfield, Supreme the further ex judgments properly with- legislative Such are plained: Assembly. of purview the the General narrowing required [T]he function for a statutory aggrava- of The fact that one the regime capital punishment may pro- of be ting penalty at the circumstances established ways: vided in of either these two hearing the of duplicated one of elements legislature may itself the narrow definition felony murder does not make offenses, capital jury ... so that constitutionally a infirm. death sentence finding responds concern, guilt Phelps, at 484 U.S. Lowenfield legislature may broadly more define S.Ct. at 555. Accord Whalen capital provide narrowing offenses for Accordingly, in at 565-69. the case A.2d by jury findings aggravating circum- judice, sub we conclude that when the penalty phase. at the stances felony Ferguson guilty found of one count Id. at 108 S.Ct. narrowing Degree, Murder in the First In felony the context of Murder in the Eighth required by the was Amendment Degree, First penalty the Delaware death completed. Phelps, 484 U.S. Lowenfield statute accomplishes narrowing function (1988). using the method first described Lowen- 4209(e)(2), Under Section a defen field. Aggravating Circumstances felony dant’s first-degree conviction of mur Counting” Weighing Process “Double statutory der aggra constitutes automatic during contends 4209(e)(2). vating circumstance. 11 Del.C. phase, weighing process of the effect, first-degree the statute defines fel improperly permitted to “double ony being a death-eligible murder as offense count” circumstances. Accord Butler, Byrne as matter of law. See Ferguson, (5th Cir.), denied, F.2d n. 12 cert. (1) circumstances that the murder was com 487 U.S. 101 L.Ed.2d during robbery mitted murder pecuniary gain dupli- for are committed Ferguson’s contention appeal in this is es- cative, during a because a murder committed sentially Eighth Amendment re- robbery necessarily pecuni for committed quires narrowing during second occur ary gain. Fla.Supr., See Provence v. penalty phase. According Ferguson, So.2d 783 cert. narrowing, in this second defendants convict- 53 L.Ed.2d first-degree ed of felony murder who are Consequently, Ferguson argues it was error eligible would have to that, if it not to instruct law, separated, be as a matter aside robbery pecuniary gain were both extant from consideration of circum- circumstances, it stances, actually from those could be who single regard only aggrava should them sentenced to death. Pursuant to ting weighing process. factor argument, narrowing this second would be accomplished only did not raise this claim before existence of least Therefore, we one Court. review circumstance does duplicate plain Wainwright underlying elements error. felo- his contention 1096, 1100, ny.7 Del.Supr., 504 of, finding per- 7. We that the threat or violence another note Court’s force son,” accomplish narrowing” this “second circumstance that Fer- would guson required. previously even were in 11 Del.C. convicted of "another mur- if it fact of, 4209(e)(l)i. felony involving der ... a or of the use or denied, 869, 236, gain 479 U.S. on S.Ct. 93 be focused rather to himself or an- (1986). initially L.Ed.2d 161 This Court re other not thereto.” entitled Del.Grim.Code jected a argument similar in Flamer Commentary (emphasis With add- 104, denied, Del.Supr., 125-26, ed). 490 A.2d Delaware, cert. Consequently, since not all 464 U.S. 104 S.Ct. 78 L.Ed.2d 173 pecu- ipso robberies are committed for facto (1983), denied, and cert. 106 niary gain, U.S. always two those factors are (1985), L.Ed.2d and subse duplicative. quently Deputy 500 Moreover, when a even murder occurs dur- A.2d 480 ing robbery being a which committed for 94 L.Ed.2d 778 pecuniary gain, those two are not factors (1987). Ferguson intervening, has cited no entirely duplicative. Robbery, aggra- an controlling legal precedent subsequent to factor, vating focuses on the of accom- means support Flamer and Deputy in of his conten crime, i.e., plishing Pecuniary force. tion. factor, gain, aggravating as an on focuses Flamer, In this Court noted that the Unit crime, i.e., gain or motive either Supreme ed States Court has affirmed a deprivation. Accordingly, owner there is a sentence of death which these same two Assembly’s rational basis for General allegedly duplicative aggravating circum separate a identify decision each factor as presented stances were to the without statutory aggravating circumstance. single instruction to them as treat a fac the Dela 1991 amendments to tor. (citing Flamer v. penalty legisla death ware statute reflect no Gregg Georgia, change tive intent to this Court’s construc (1976)). Therefore, identical, Deputy tion Flamer and of the question Court determined of wheth fact, statutory language. unamended er these circumstances are “du- Fergu those amendments undermine plicative” is a matter of construc argument. son’s The function of the tion, constitutionality. rather than an of issue capital sentencing process the Delaware’s Deputy 600-01. Cohen, advisory. now State held, Deputy, This then 846, 851-52 language of the Delaware death stat “clearly anticipates duplicative ute statu present Pursuant Delaware tory aggravating may circumstances be con statute, weighing aggra of jury.” sidered Id. at See 11 vating mitigating circumstances is not 4209(e)(2). “simply process judg mechanical devoid Furthermore, Ferguson’s argument that ment.” Id. at 849. The of a robbery gain and pecuniary always dupli- imprisonment are life sentence death or is not contrary explicit counting cative factors is lan- pro determined a “mere be guage commentary applicable weighing stat- Id. cess.” “qualita utes. Delaware Criminal has ex- Code circumstances involves panded the concept robbery “quantitative” common law tive” rather than consider and now defines that crime as “forcible ation the circumstances to determine the Commentary appropriate punishment. qualita theft.” Del.Crim.Code With Id. That theft, process requires Delaware’s definition of tive and the carefully specific also than broader the common law consider the facts of definition, and, encompasses separate appropriate, give now two case not to each when concepts: may deprive “indepen “[T]he actor intend one or more factors property, may weight.”8 owner his mind dent Court, appeal pending Supe- 8. Since 1991 amendments to the Delaware now before this statute, punishment capital judges judge regarded statutory aggrava- other have rior placing ting Robbery sentenced defendant death without in the First De- weight Degree independent multiple statutory aggra- gree Burglary on in the as a Second vating weighing process. single aggravating during factors For circumstance instance, Jackson, sentencing weighing process. Del.Super., another decision in

783 penalty. quan- imposition of the death appeal, importantly, Most crime of first- for the judge, punishment trial who is the tum of acknowledges that the un- remains authority the 1991 in Delaware sentencing degree after murder ultimate Cohen, amendments, Del.Supr., 604 specifically changed.” stated v. State Florida, decision, (1992). reaching sentencing 846, he consid- v. his See Dobbert A.2d 853 2290, 2298-99, robbery pecuniary gain statuto- 282, 293-94, ered the ry aggravating (1977). as one na- The restrictive L.Ed.2d 344 53 factor placed “no during weighing process and jury’s findings and the advisory ture of the gain independent weight” pecuniary on the penalty mandatory imposition of the that, acknowledges aggravator.9 The State judge the amended sentencing under case, judge Ferguson’s there- “procedural,” and are likewise statute “statutory completely within his sentenc- concerns. implicate post ex fore do not facto authority independent ing to attach no 849, Cohen, 604 A.2d at 853-54. State v. aggravator” weight pecuniary gain to the legal precedent or Ferguson “has cited no weighing process. Daw- during the Accord that would intervening changes the law 57, State, 66 Del.Supr., 637 A.2d son v. of this Court’s the ratio decidendi undermine (1994).10 Ferguson has failed to demonstrate post ex issue.” holding in Cohen on the facto plain error.11 State, Del.Supr., 637 A.2d Dawson v. (1994). Accordingly, to overrule we decline Post Facto and Due Process Ex post to our ex Cohen. We adhere facto Penalty Amendments Death Statute progeny. Ac holding in that and its decision appeal Ferguson’s argument next on State, Del.Supr., 637 A.2d cord v. Gattis that the Court violated both State, (1994); Del.Supr., 633 Wright v. post clause of the federal Constitu ex facto State, (1993); Dog v. Del. Red A.2d the Four tion and the Due Process Clause of Supr., 616 A.2d Dela teenth Amendment when the amended applied to ware death statute was Penalty Death pre-enactment This offenses. Statutorily Mandated Review merit. This has contention is without statutorily review now undertake the by We changes previously held that “the effected imposition of the death for the mandated new death statute are Delaware’s 4209(g). penalty in Delaware. procedural,” because the 1991 amendments State, See, Del.Supr., A.2d determining e.g., “merely the method of Gattis alter[ed] Bifferato, J., in our decision (Apr. rejected the of Provence rationale I.D. No. 28, 1993) State, decision); (sentencing in Flamer v. State. Jackson 162/169, (Consolidated). Nos. penalty phase We also note that Dawson, that he had “the trial stated 10. In proceeding, which within the universe another independent weight place on this ‘chosen not to reviewed, unanimously of cases we have the murder that Dawson committed factor dur- determined that the murder was committed already gain has pecuniary the Court because but, by eight attempted robbery a vote of while the committed that the murder was found four, that the murder had not also concluded engaged commission of defendant was ” gain. pecuniary been committed involving property.’ Dawson robbery the same Rodriguez, Del.Super., Bar- I.D. No. 637 A.2d at 66. ron, J., (Nov. 1993) (sentencing at 26 & n. 16 opinion). Deputy, this Court held that in 11. We note statutory aggravating cir- "allegedly duplicative decision, sentencing in a prejudice the defendant 9.In cumstances do mitigating weighing that in stated other case ... where Deputy "plac[ed] jury.” inde- presented circumstances he no been factors have weight also Flamer pendent the factor that the defendant A.2d at 601. See on case, any pecuniary gain, mul- at 126. In murder for committed the element, allegedly duplicative robbery tiple there is no were not involves that factors which Therefore, Fergu- jury. gain by pecuniary this defen- evidence of actual were submitted meritorious, argument, if it had been even See Dawson v. son’s dant as a result of this offense.” to lack of record failed due have also would support. sentencing judge had also noted that this Court 784

808, (1994); State, 821-23 (a) Dawson v. quiries required Del. by subparagraph are Supr., 57, (1994); 637 A.2d 65-68 first, Sullivan v. 4209(g)(2): of Section whether the State, 931, Del.Supr., (1994); 636 A.2d 948-51 judge’s imposition of the State, Wright v. 329, 633 A.2d 339 penalty arbitrary was either or ca- (1993). Although the requires only statute pricious; second, and whether the death Court, limited review penalty review is imposed disproportionate perfunctory. State, Dawson v. 637 A.2d penalty imposed in similar cases aris- Florida, at 65. See Dobbert v. under question this statute. Each re- 2290, 2299, 97 S.Ct. quires totality consideration of the (1977). Under penalty Delaware’s death aggravation evidence in mitigation and statute, a death may imposed sentence be upon which particular bears circum- only in proce accordance with the bifurcated stances or details of the offense and prescribed by § dure 11 Del.C. 4209. Sec propensities character and of the offender. tion 4209(g)(2) provides as follows: State, Wright v. (quoting 633 A.2d at 339 Red Supreme Court shall limit its re- State, Dog view under this section to the recommen- (1992)) (citations quotation marks omit- dation on of the ted). State, 821; Accord Gattis v. 637 A.2d at death and shall determine: 66; Dawson v. Sullivan v. Whether, a. considering totality of State, 636 A.2d at generally Gregg 949. See in aggravation evidence mitigation Georgia, 428 U.S. upon which particular bears circum- L.Ed.2d 859 stances or details of the offense and the We first subparagraph address ofb propensities character and of the offend- 4209(g)(2). Section er, judge and the the death was either arbi- established, both found that had

trarily capriciously or imposed or recom- beyond doubt, a reasonable the existence mended, disproportionate pen- three circumstances. alty imposed recommended or similar in First, judge both Fergu found that arising cases under this section. son previously “was convicted of another b. Whether the supports evidence manslaughter murder or felony or of a in judge’s finding statutory of a aggrava- volving of, of, the use or threat force or ting circumstance as enumerated in sub- violence person.” another 11 Del.C. (e) and, section of this section where 4209(e)(l)i. § See Gattis v. 636(a)(2)-(7) applicable, § of this title. presented at 821. indepen- The State two 4209(g)(2). performing its dent convictions to sustain its burden of review, mandatory statutory this Court is proving statutory this first aggravating cir- always cognizant punish- that “death as a Ferguson’s prior cumstance. conviction of unique ment is severity its and irrevocabil- murder Pennsylva- Commonwealth of ity.” Pennell v. Del.Supr., 604 A.2d nia, killing a man in a Chester bar in (1992) (quoting Furman v. Geor- undisputed at trial. gia, 33 L.Ed.2d parole concerning officer testified the official (1972)). See also Dawson v. Also, records of the conviction. a witness to A.2d at 66. the murder Supe- identified This traditionally Court has commenced rior Court. mandatory statutory its by initially review (b)

addressing subparagraph presented that, Section The State also evidence 4209(g). requires That parole murder, subsection Fergu- while on for the examine the evidence in the rec- son shot and wounded a man in 1985. This supports ord to determine it whether incident resulted conviction for findings assault, aggravated felony which is a under relate to the Pennsylvania establishment of law. Court records from Dela- County, circumstances. Pennsylvania Del.C. ware and the testimo- 4209(e). Thereafter, ny two additional in- of a former officer the Chester Police Hyland. Department pen- Tyrone were He denies introduced defendant rob, alty hearing prove any part the conviction. the statement intent on his admits if the deal had although he The trial had through Tyrone he was that gone sure aggravated an in committed assault 1985. money. given him the would have some of judge Ferguson The trial also had at indicated that His recorded statement judge a murder committed in 1980. The trial minute, gun, Tyrone gave him the the last concluded that the estab- State’s evidence shooting an accident. and that the was Ferguson’s lished convictions for each hard to the account is reconcile with This beyond those offenses a reasonable doubt. the physical evidence of burns and flesh Superior judge’s findings The Court and con- placement the in left wound the lower regard to clusion with the establish- State’s It equally the victim. inconsis- back of statutory ment the first aggravating cir- the certain facts established at tent with cumstance, beyond doubt, a reasonable are that penalty phase: [Ferguson] admitted Therefore, supported by the record. the Jimmy shooting Mitchell in June of 1991 established the State existence of the first Chester; and that scientific evidence indi- statutory aggravating alleged by factor it two gun used same as that cated the was the convictions, prior provided either of which homicide. con- used The Court independent Superior basis for the Court’s that the State’s and the cludes evidence conclusion. pro- reasonable inferences therefrom can Second, judge both the and the found only Tyrone Hy- duce one conclusion: that Ferguson that committed the murder Ferguson land and Cornelius set out to Hodges engaged while he was in the commis- Troy Hodges, “rip off’ was that robbery. 4209(e)(l)j. § sion of a 11 Del.C. gun, with the that while the “muscle” Superior judge properly The Court instruct- attempting robbery, Ferguson killed ed the that this Troy Hodges. only The mo- obvious and established, circumstance was as a matter of shooting gain. pecuniary tive for the law, by felony murder conviction. against Hodges no grudge had Thus, See Dawson v. at and, fact, knowing denied him. even supports the record the conclusion that Thus, beyond the Court convinced second circumstance had also reasonable doubt the Murder was been established the State’s evidence be- pecuniary gain. committed for yond a reasonable doubt. sup- The record reflects that the evidence statutory The third and final ports Superior judge’s finding Court circumstance was that the murder was com- statutory aggravating cir- this and two other pecuniary gain. mitted for 11 Del.C. 4209(e) cumstances enumerated in Section 4209(e)(l)o. jury unanimously found beyond doubt were established a reasonable had established this factor 4209(g)(2)b. case. beyond a reasonable In sentenc- doubt. his at 66. also Dawson v. decision, Superior judge ana- Court Therefore, proceed now the two addi- we lyzed developed the evidence trial: inquiries required of under tional this Court offense, circumstances [T]he as es- 4209(g)(2)a. Section trial, victim, tablished at indicate that Troy Hodges, Ferguson] [Hyland met Penalty Death purchase particu- drugs. an effort Arbitrary Capricious Not lar, seeking buy he was a kilo- a half $10,000. gram eighteen page opinion, of cocaine It was also In an written by [Fergusonj’s explained for its Superior the basis established own statement Court [they] a death on Cornelius any did have cocaine with sentence decision, Indeed, sentencing all the In this Ferguson. them. transaction had aggrava “drug rip-off.” judge of a Superior characteristics classic outlined alleged [Ferguson], according ting intent of to his circumstances statement, friend, nonstatutory, go hearing, was to co- both

well as the present- presented evidence was in a conservative and by Ferguson. ed fashion, appeared non-dramatic designed impact state the facts of the of the offense The nonstatutory aggravating circum- family attempting without to invoke alleged by stances the State12 and found to sympathy.” Accordingly, undue Superior exist were sub- Court determined that it would consider the First, stantial. Court found impact victim “as evidence one that at the time of killing Troy Hodg- ... along factor with all the other factors.” es, Ferguson charged shooting with the (“Mitchell”) of a man Jimmy named Mitchell also considered Chester. At the hearing, twelve circumstances that State Ferguson’s introduced statement in Ferguson upon during relied which he admitted shooting Mitchell. The (1) hearing: of, Ferguson was a victim and a record prior reflects that two months to the to, (2) child; witness domestic violence as a Hodges killing, Ferguson shot Mitchell four Ferguson comes abusing from a substance times, using gun the same that he later used (3) dysfunctional family and background; to kill Hodges. Superior The Court found Ferguson has a child whom he loves and who this incident “to be established and to be (4) him; Ferguson loves family has a whom relevant to its considerations.” (5) him; he loves Ferguson and who loves (6) job prior incarceration; had a presented Fergu-

The State also evidence of sev- child; prison appropriate eral son lacked disciplinary role models as a proceedings against (7) Ferguson Ferguson has remorse for the custody while he was in death of in Dela- (8) victim; the murder Ferguson ware. Superior however, The exhibits judge, Court (9) positive traits; personality found that death occurred leading the incidents to those during proceedings mutually agreed-upon meeting did not propensi- indicate violent serious, hand, ties. commit the On the other felonious act of traffick- judge did find (10) ing drugs; granted plea that presented evidence State concerning Fergu- co-defendant, Hyland, offer to the son’s to the Pennsylvania incarceration in did indi- charge [, propensity Degree cate “a Murder Second to threaten the use of (15) Hyland which] was violence to sentenced to fifteen achieve an end.” The record incarceration; (11) years premeditat- occasions, lack of reflects that on at least Fergu- two part ed intent on the son of the defendant guards threatened language with (12) cause the “you Troy Hodges; effect that death of playing like and your life” Ferguson you and “I’ll desires to better himself. The take out.” tri- Superior The Court judge findings al judge respect made "with to each determined that this evidence of Fer- alleged mitigating guson’s factor. propensities violent was relevant to the decision appropriate on his sentence. First, Ferguson alleged that he was a vic- nonstatutory

The final aggravating circum tim of and a witness to domestic violence as a alleged by stance impact State was the sentencing judge child. The found “little Hodges’ family. death on assertion, In support his sentenc evidence” to but found decision, ing Superior judge “ample Court noted [Ferguson]’s early evidence that (until impact 8) that victim properly years evidence is age con about were unstable and sidered problems decision under family Section that existed unit.” Delaware, 4209. Petition Del. The Ferguson record reflects that when was Supr., 597 old, The eight years custody record reflects informally “his Hodges’ that mother that passed great-grandmother, testified her son to his maternal faults, had loving outgo but that he was siblings.” raised him who and his The rec- ing. also supports She testified about the shock Superior judge’s ord Court find- grief she felt when any she was informed of her that “[t]here is no indication of abuse judge son’s death. setting,” The “[t]he that and that the household of offense; (3) nonstatutory aggravating pending Fergu- criminal evidence of (1) alleged by record; (4) impact prison Fergu- the State were: of the son’s evidence of family; murder on the victim’s evidence of a son’s character. lifestyle in his over Ferguson’s great-grandmother “appeared to there was “little evidence However, argu- loving nurturing.” past years support be sen- twelve Ferguson’s tencing judge did find that father ment.” Ferguson’s natural abused alcohol and alleged premedi- Ferguson also a “lack family dysfunctional. was Troy part killing tated intent” on his judge considered the Hodges mitigating circumstance. The as a alleged proper lack of role models however, “not judge, concluded childhood. Ferguson supported had convinced” that poor father was role model Considering assertion. the forensic evidence from the fact he took his son to bars victim, gun’s direct contact with fact, underage. while his son was weapon to Ferguson’s prior use of the same Ferguson 1980 murder for which was con- Mitchell, handgun Jimmy and the 1980 shoot in a victed occurred while bar Chester, sentencing judge murder However, company of his father. any to conclude that he had found it “difficult noted that pulled trigger than intent when he other entirely deprived exposure was not Troy Hodges.” to kill instance, positive Fergu- role models. For that, although judge The also determined principal, son’s school had taken middle who hearing Ferguson apolo- penalty the Ferguson an interest in him while was in killing and to gized for the both to the court school, testified on his at the behalf family, the he maintained that it was victim’s hearing. accident, “just happened,” and only an that it Ferguson alleged, Superior also and the might again. judge con- happen that it The found, judge Court that he has a “whom child Ferguson that does not feel remorse cluded However, he him.” loves and who loves the Instead, killing. judge deter- for the the

judge Ferguson’s also that determined con- Ferguson only “remorse that mined that has tact with his son “has been minimal due to in in he finds him- he is the situation which lengthy periods the of incarceration he has self.” 1980,” undergone since and that mitigating considered The final two factors “actions do not indicate that his [his] [for love by Superior judge Fergu- were the Court high in priority was a his decisions.” son] first, Hodges’ allegations: that since son’s respect With to the rest of fami- during mutually agreed- murder “occurred a ly, judge acknowledged that love serious, upon meeting commit the feloni- Ferguson’s great-grandmother and brother trafficking drugs,” in the victim ous act of expressed him penalty hearing. for at the “innocent”; second, that entirely not and was judge testimony The also noted that the guilty in Hyland plea to Murder entered Ferguson’s girlfriend showed that she “cares to 15 Degree and was sentenced Second deeply Fergu- him” and that she assists years prison. sentencing judge found The visiting prison. son’s son in him in to exist and to be of these factors both Superior judge The Court found that Fer- appropri- to its consideration of the relevant guson employed by City was of Chester Nevertheless, Ferguson. ate sentence grass cutter at the murder. as time Superior judge concluded “the vic- Court supervisor His testified at the hear- right to live which was tim had an absolute ing. Ferguson good described as a and He by [Ferguson],” him capriciously taken from employee. sentencing judge dependable The Hyland. participated has also concerning Having findings programs pris- made its educational and other while mitigating fac- aggravating and participation, his existence of on. That combined with tors, proceed- habits, judge then Superior apparent good work were determined to determine whether “positive to be traits.” Howev- ed mitigating cir- outweighed the er, although Ferguson also asserted his de- 4209(d)(l)b. 11 himself as a circum- cumstances. sire better weighing stance, judge correctly “[t]his stated that found qualitative pris- procedure spent years nine of his last involves both a and twelve quantitative analysis that he requires the Court on. In the brief amount of time totality spend society, to look at the able to he has of circumstances sur- has been rounding kill people as all to death offense as well factors shot two and tried offender, relating Invariably, upon propensities, to the two more. release from his [Ferguson] immediately regard, prison,13 character.” In that the sentenc- arms made, alia, ing judge following has [Ferguson] inter himself with firearm. distinguished by developing himself a sub- determinations: in a sanguinary stantial record of deeds defendant, process in the of an at- omitted]. amount of time (or [footnotes limited tempted completed) robbery, placed a victim, handgun against the back record reflects pulled trigger victim to die left the judge carefully totality considered the victim, parking drug lot. The aggravation mitiga- of the evidence dealer, involved in believed to be what he tion, particular related to the circum- purchase trafficking quantity of a Hodges, the murder of well stances of as distribution, cocaine for not an inno- Fergu- propensities character and Nonetheless, victim. the victim cent had § 4209(g)(2)a; son. 11 Del.C. Dawson right capri- an absolute to live which 67; A.2d at Sullivan v. ciously taken from him this defendant A.2d at 950. The record reflects [footnote omitted]. impose Court’s decision to product “the deliber- death sentence was of a ate, logical process.” rational deductive While is true that Cornelius Jt (citing v. Dog Red 616 A.2d at 310 by good people, loved there is no indication 1376). State, 604 at After a Pennell v. A.2d any meaningful he that returns that love in record, this careful review of the entire testimony fashion. While there was that that of death Court concludes the sentence [Ferguson] “right taught his from son imposed upon Ferguson by the was not Su- wrong,” it is difficult for the Court to see perior arbitrarily capricious- either Court history he given how could do that his life 4209(g)(2)a. § ly. 11 DelC. seeming inability place any his and val- ue on human life.... Penalty Death rejects [Fergu- The Court considers and Proportionality Review background upbringing as a

son]^ mit- igating outweighs factor that the heinous remaining question that this propensity of nature this crime and the of mandatory answer in review Court must its [Ferguson] [Ferguson]’s for violence. sib- impo judge’s is whether Court lings shooting have not made a career of penalty upon Ferguson of the death sition They people. subjected were to the same penalty imposed disproportionate to the Society deprivations. and societal familial arising cases under the Delaware other lack Ferguson’s not create Cornelius of did death statute. 11 Del.C. concern human life.... answering inquiry, 4209(g)(2)a. that [Ferguson]’s in this case is remorse has reviewed the “universe” of this Court any highly questionable. intent Flamer, He denied Bailey, Riley, cases established Troy kill off mur- Hodges, writing DeShields, Pennell, Dog, Deputy, Red happened.” something “just Sullivan, Gottis, as Dawson, der Wright, as right [Ferguson], exercising But to al- subsequent falling therein well as all cases locution, I). this State, did not even indicate Del.Supr., (Appendix Sullivan v. happen again. (1994) cases). type 931, incident would not (citing See 636 950 State, young Del.Supr., 637 A.2d 808 is a Gattis v. What the Court is left with State, (1994); age Del.Supr., v. 637 A.2d twenty-nine years who has Dawson man prison guards sentencing judge with violence indicated threatened also noted participation prison programs, inability adapt prison rehabilitation "to well to life.” incidents in which but

789 (1994); State, 1754, (1988); Wright Deputy Del.Supr., 57 v. 633 S.Ct. 100 L.Ed.2d 217 State, 581, (1985), Del.Supr., A.2d 329 v. 500 A.2d “universe” cases denied, comprised Degree of those First Murder cert. State, (1987); penalty hearing Riley

cases which have included a L.Ed.2d 778 v. final,

and in which the sentence has become 496 A.2d following

either without or a review U.S. Gattis, State, Wright Ferguson, pre Court. See 633 A.2d at like had been viously felony. 342.14 convicted of a violent Gattis State, Ferguson, Red 637 A.2d at 822. like consistently prior This Court has noted in Pennell, history Dog prior had a involving proportionality cases review that State, Dog homicidal acts. Red 616 A.2d comparison definitive “[a] the ‘universe’ of 312; State, 604 A.2d at 1378. Pennell impossible.” Dog cases almost Red Accordingly, we have concluded that the Su State, Del.Supr., 616 A.2d perior judge’s imposition of a sentence State, (citing Pennell v. upon Ferguson dispropor death (1992)). See also Gattis v. imposed tionate to the sentences on other 823; 637 A.2d at Dawson v. defendants in the relevant “universe” of 68; Sullivan v. 636 A.2d at 950. involving penalty hearings in cases De have, however, compared Ferguson’s We 4209(g)(2)a. laware. 11 Del.C. penalties imposed sentence with the in all Degree First Murder cases have in- Conclusion penalty hearing, cluded a death and have objective grav- carefully considered factors such This has reviewed the en- offense, ity of the rejected the circumstances of the tire record and has considered and crime, severity penalty. and the by Ferguson all claims of error raised Dog (citing Red appeal. A.2d at 311 that the facts We have determined Helm, imposed Solem v. supporting the sentence of death (1983)). L.Ed.2d 637 Troy Hodges for the murder of “are so clear The record case reflects the virtually convincing no reasonable existence of three cir State, person Dog could differ.” Red v. 616 significant nonstatutory ag cumstances and State, (quoting v. 604 A.2d at 312 Pennell State, gravating circumstances. Dawson v. 1378). clearly supports at A.2d evidence 637 A.2d at 68. Like others sentenced to judge’s finding that three Delaware, Ferguson death in was found statutory aggravating circumstances were es- guilty committing unprovoked, of cold beyond doubt. 11 tablished reasonable person blooded murder of a who lacked the 4209(e), (g)(2)b. Del.C. State, ability to defend himself. Gattis v. 637 State, 823; 68; at concluded that the death A.2d Dawson v. 637 A.2d at This Court has State, 950-51; im- imposed upon Ferguson Sullivan v. was 636 A.2d at sentence State, Wright Supe arbitrarily capriciously. posed v. 633 A.2d at 343. The neither nor Fergu- sentencing has also determined that rior Court concluded This Court comparatively only death sentence is not decision that the “obvious and motive” son’s imposed in by Ferguson, disproportionate like others sen to the sentences for the murder Delaware, that have pecuniary Degree other First Murder cases tenced to death State, 343; penalty hearing pursuant gain. Wright proceeded v. 633 A.2d at to a State, 630, 11 Del.Supr., penalty statute. v. 534 A.2d the Delaware death DeShields State, denied, 1017, (1987), 4209(g)(2)a. v. 637 108 See Gattis 649 cert. 486 U.S. State, jury appropriateness on the Wright 14. In we noted that the 1991 "reflect a consensus Also, to the Delaware death statute penalty.” revisions removed the Id. “in all cases in of the death decisionmaking authority from the imposed, this the death sentence was sentencing jury placed it in the hands of the proportionality review.” Id. conducted However, judge. pre- n. 633 A.2d 342 21. 4; State, n. Dawson v. 67-68 Accord pertinent decisions are nevertheless 1991 State, 636 A.2d at 950 n. Sullivan proportionality analysis our because those cases State, 822-23; State, A.2d at Dawson v. 637 A.2d at Court in Flamer v. State, denied,

67-69; 104, 125-26, 865, 104 Sullivan v. 636 A.2d at 948-51. cert. 464 U.S. Accordingly, underlying Deputy convictions and 78 L.Ed.2d 173 S.Ct. judgments, including judgments imposing denied, (1985),

sentences of death for each count of Murder cert. 480 U.S. Degree, (1987), are AFFIRMED. First 94 L.Ed.2d 778 there have been jurisdictions intervening in other decisions The matter is remanded to upon propriety which cast serious doubt proceedings for further consistent with this counting aggravating cir of this double opinion setting and the of a new date cumstances. execution. This Court’s order of December 17, 1992, staying the execution of Since its decision Provence sentence, shall terminate the is- (1976), Fla.Supr., So.2d suance of mandate. The this Court’s Clerk copy of this Court is directed to cause a (1977), Supreme the Florida Court has reaf opinion be hand-delivered forthwith rejection practice permit firmed its attorneys parties for the and to the Com- doubling aggravating circum ting the Department missioner of the of Correction. robbery pecuniary gain stances of “when aggravating circumstances referred to both WALSH, Justice, with whom aspect the same of the defendant’s crime.” HARTNETT, Justice, joins, concurring. Fla.Supr., Robertson So.2d fully I concur the decision of this Court Provence, (1993), quoting 337 So.2d at upholding both the determination of jurisdictions, following the 786. Other lead guilt penalty. and the of the death Provence, redundancy, have also found however, separately, I con- write to voice a error, prejudicial the level of in the submis Fergu- cern over the Court’s treatment of of murder sion of improperly son’s claim that pecuniary gain and murder committed permitted statutory aggrava- to double count robbery. during the crime of Willie v. view, ting my circumstances. the use of (1991); Miss.Supr., State v. 585 So.2d statutory aggravating circumstances which Quesinberry, 319 354 S.E.2d 446 N.C. redundant, applied cannot be other than grounds, judgment vacated on other case, However, improper. given 'is 1465, 108 L.Ed.2d array formidable circum- (1990); Meyer, Wyo.Supr., Engberg proved, including prior con- stances murder 820 P.2d 70 viction, I am satisfied that such error was beyond a harmless reasonable doubt. redundancy question The Court views the legislative correctly as one of intent and capital punishment Delaware’s Under Assembly in its 1991 scheme, notes that the General § the establishment amendments to the Delaware aggravating circumstances is the court’s statute did not act to correct imposition of qua non to the the death sine expressed in construction of 4209 as Flam- to establish the initial sentence. Both Deputy. The further com- jury permit and to er and threshold of consideration that, conceptually, circum- ments there is a distinc- balancing against the stances, robbery under the separately stated circum- tion between theft and the 18 4209(e) play quarrel I have no forth in 11 Del. C. Delaware Criminal Code. stances set analysis penalty phase conceptual in of a with the Court’s significant role the circumstances, Today, agree pe- trial. the Court that under certain capital punishment aggrava- cuniary gain may separate of these continue to find rejects the claim that two circumstances, aggravating the murder was existence as an circumstance as ting robbery difficulty in during a and that intended Delaware law. The lies committed gain, pecuniary application for in a committed circumstances murder was duplicative. given evidentiary setting this no While where there is impermissibly are rulings separately of this factual previous viewing to basis for them holding adheres view, robbery. my proper are situa- standpoint from the of the defendant’s con- In these pecuniary gain may in consid- duct. tions which be statutory aggravating circum- ered as a robbery underlying The motivational factor stance. situations, may, e.g., in certain extreme noted, robbery reputational pur- is committed for the sentenc- As the Court has also factor, case, poses, redundancy ing judge judges eliminate the but it in in other this clearly capital punishment does not in do so this case where cases Court, sentencing judge recognized redundancy consistently to accord have declined weight pecuniary gain and neutralized its effect in the final an independent sentenc- to ing process. jury coupled It is not sufficient for circumstance when purposes conceptu- robbery burglary instructional to be able to offenses. If this related circumstances; practice, alize between be the we are thus confronted with jury application judges per- must be advised of the the unusual situation where some juries apply law to the facts of the case before it. As mit to redundant circumstances Supreme advisory capacity declining the North Carolina Court observed their while Quesinberry: ultimate do so themselves their role as view, my we should not sentencers.15 Although pecuniary gain factor ad- ignore practice permits specifically, dresses motive the other can- engage highly questionable in a exercise of alone, perceived not be as conduct un- counting in no factual double cases where der the facts of this case the motive of separate weighing. basis exists for pecuniary gain provided impetus robbery Admittedly, itself. situations I find it anomalous that the Court credits are conceivable in which an armed robber judges for their discern impulse murders motivated some other according independent weight ment in no pecuniary gain, e.g., than where the rob- duplicative aggravating while bery something is committed to obtain permitting juries at the same time to be sentimental, purely reputational or rather they may such fac instructed that consider pecuniary, than value. The facts Although, tors in their under deliberation. case, though, reveal that mur- defendant law, Delaware the trial is the ultimate shopkeeper single pur- dered the for the sentencer, play in continues to an pose pecuniary gain by means of com- dispensable role “as conscience of mitting robbery. an armed State, Del.Supr., community.” Wright v. Cohen, (1993), quoting State v. case, Similarly, S.E.2d Del.Supr., 604 A.2d Where sentencing judge characterized the criminal capital-sen place “to the State has decided “drug rip-off’ transaction as a classic authority in than tencing two actors rather only which the “obvious and motive for the one, permitted neither actor must be shooting pecuniary gain.” weigh invalid circumstances.” Pecuniary gain independent signifi- has — Florida, U.S. —, —, Espinosa v. cance as a circum- 2926, 2929, L.Ed.2d example, if a stance other situations. For holdings in Flamer and on a life To the extent our murder was committed collect inheritance, dupli- policy gain Deputy permit to consider insurance or to robbery cative the murder would have been committed pro- pecuniary gain where the evidence pecuniary gain, but not in the course of a law, presumably proge- Apparently practice Provence and its 15. is not In a Florida uniform. Court, pending presently case review in this Jack- ny, persuasive to follow it. Fur- and elected Court, by son v. cited ante at 782-783 thermore, Del.Supr., Wright 8, Judge pecuniary permit n. gain aggravating Bifferato refused to Pesco, Judge before Del tried to be submitted to as pecuniary gain permitted to consider was not circumstance when murder where the circumstance during robbery committed the course of a robbery of a murder was committed penalty burglary. Since Delaware's death stat- liquor clerk. store Florida’s, he ute is modeled after reasoned independent weighing vides no basis for sentencing process, I would overrule In re SEA-LAND CORPORATION

those decisions. SHAREHOLDERS LITIGATION.

Notwithstanding my reservations concern- counting the double of two GROVER, Austin, George Arthur W. Ber- circumstances, I am satisfied that such error Lowe, Rosalyn nard and Trustees U/D/T beyond was harmless a reasonable doubt. 21, 1961, dated the benefit of June Gattis Rosalyn Lowe, Hecco Ventures (1994); Mississippi, Clemons v. Plaintiffs, Cotter, James J. sentencing judge carefully documented an circumstances, array in- other SIMMONS, Joseph Abely, Jr., Harold C. F. cluding prior murder conviction. In view Dixon, Dwight Allison, Jr., L. Robert W. overwhelming weight of these circum- Jr., Amalgamated Sugar Company, stances, of the death Corporation, Corporation, LLC CSX arbitrary capri- this case was neither nor Acquisition Corporation, CSA Sea- cious. Corporation, Land Defendants.

APPENDIX I Civ.A. No. 8453. FIRST DEGREE MURDER CASES Delaware, Chancery

THAT PENALTY WENT TO County. New Castle HEARINGS Date 1992. Submitted: Oct. 1985 to date March 1993. Date Decided: Appendix I to Dawson v. Date Revised: March incorporated herein reference, subject following changes and additions. David F. Case Name: Dawson No.: IK86-0024; IK87-01-0841; 0843, Case (venue changed) New Castle County:

Sentence: Death Ferguson* Case Name: Cornelius E. No.: thru IN91-10-0576, Case New Castle

County: proceeding Sentence: present Death— Robert A. Case Name: Gattis thru 1019, 1106, Case No.: IN90-05-1017 New Castle County:

Sentence: Death comprised “universe” of cases Degree which have

those First Murder cases hearing

gone to a and which final, either without or

sentence has become An aster-

following a review this Court. capital murder cases which

isk marks those in the defined “universe”

are not included

cases.

Case Details

Case Name: Ferguson v. State

Court Name: Supreme Court of Delaware

Date Published: Jun 14, 1994

Citation: 642 A.2d 772

Docket Number: 566,1992 and 568,1992

Court Abbreviation: Del.