*1 in a simi A later state court decision is SHELTON, Defendant for fraud Steven damages option
lar vein. The Below, Appellant, Duffy, as applied by specially Justice Bergold v. signed v. 82C-SE-20, No. Anglin, Del.Super., C.A. Delaware, Plaintiff STATE (Mar. 15, 1988), 25859, Duffy J. 1988 WL Below, Appellee. Del.Supr., No. Anglin Bergold, aff'd (June 88625, Walsh, J. 1989 WL No. 1989) (ORDER). a suit Bergold involved Supreme Court Delaware. following gen fraud the execution of a among joint owners of an air eral release 27, 1999. Jan. Submitted: con plaintiff contended that the craft. 25, 1999. Decided: June fraudulently dition of the aircraft had been Jan. Revised: sought represented defendant the aircraft placing to restore costs 5, 2000. Rehearing denied Jan. airworthy Although there is condition. an alterna no discussion of rescission as remedy, Bergold the court in ruled
tive plaintiffs
that the claim sounded com false representa
mon law fraud based on plaintiff
tion intended to induce the
agree Notwithstanding to the settlement. release, general
the terms of the the Court under damages arising
awarded from the
lying misrepresentations concerning the
condition of the aircraft. analysis of Dela- foregoing
Based on the law,
ware decisional we conclude that a fraud in the settlement of a
party alleging may
tort claim elect rescission and restora- or,
tion the status ante alternative- quo recovery of
ly, may bring an action for the damages with re-
special, expectancy, proceeds.3 Ac-
tention of the settlement question we answer the certified
cordingly, negative.
in the quo party ante. opposing to the status question renders 3. Our answer to certified express opinion as to concerning Accordingly, we no unnecessary any discussion circumstances, whether, what and under pursue a rescission Plaintiffs could whether might require restoration. equity restor- court of law without remedy under Delaware *7 Módica, Michael Wilmington, W. Dela- ware, Appellant. for Donovan, Jr., Timothy J. and William E. (argued), Deputy Attorneys Molchen Gen- eral, Justice, Department of Wilmington, Delaware, Appellee. for VEASEY, Justice, Before Chief WALSH, HOLLAND, HARTNETT BERGER, Justices, constituting the Court en Bane. appeal. prin- of his and on the direct One
ORDER
in
the trial
challenges
that context is
cipal
2000, appears
it
day
January,
This 5th
of allo-
ruling
limited his
court’s
that:
to the Court
addressing
penal-
in
cution
(1)
6, 1999,
a
July
appellant filed
On
of first
ty
presents
question
This
phase.
reargument,
for
to Su-
pursuant
motion
explore
us to
impression
obliges
Opin-
Rule
Court
of this Court’s
preme
devel-
history
detail the
and modern
some
-25,1999.
ion dated June
con-
the law of allocution. We
opments
(2)
23, 1999,
July
filed
On
State
the trial
no
clude that
court committed
reargument.
answer to the motion for
defendant’s
rejecting
all of the
error
and, therefore, we affirm.1
contentions
(3)
has deter-
majority
The
of the Court
reargument
mined that
the motion for
Shel-
below-appellant
Defendant
Steven
Hartnett and
be denied.
should
Justice
de-
appeals
Superior
from the
Court’s
ton
Berger
grant reargument.
Justice
in his motion
of all the claims raised
nial
The
Court has determined
relief,
pursuant
filed
postconviction
dissent released
majority opinion and the
Criminal Rule 61.
Superior Court
25,1999 should be revised.
on June
codefendants, Nelson
and his two
Jr.,
Outten,
were
and Jack Foster
NOW, THEREFORE,
IT IS OR-
felony murder
degree
of the first
convicted
DERED as follows:
Mannon. All three defendants
of Wilson
(A)
is DE-
reargument
The motion for
with
to death
connection
were sentenced
NIED.
was exe-
Nelson Shelton
the convictions.
(B)
dated
Opinion
17,1995.
on March
cuted
certain
1999 is
June
revised
Shelton,
jury.
respect
Steven
With
488, 495-496
changes
pages
now found on
circum-
aggravating
8^4 that
voted
The dis-
opinion.
498 of the
revised
circum-
outweighed
stances
is also revised.
sent
on di-
upheld
We
his conviction
stances.
(C)
opinion
contempo-
A revised
filed
claimed,
had
which he
appeal,2
rect
raneously with
Order.
claims,
among other
the trials.
by failing to sever
Court erred
YEASEY,
Justice,
Chief
rejected.3
That claim was
majority:
relief
postconviction
deci-
motion for
appeal is from the trial court’s
Shelton’s
This
court
of claims
re-
in the trial
raised number
denying postconviction
and order
sion
of his
justify the reversal
that he contends
in a case where the defendant
lief
and re-
as-
and sentence of death
The defendant
convictions
sentenced
death.
trial,
hearing,
centering around
a new
new
quire
numerous claims
serts
as follows:
claims are
he was the victim or both. Shelton’s
argument
the basic
*8
(1)
regard
defects existed with
counsel at trial
numerous
ineffective assistance of
(1995).
this
Subsequently, Shelton filed
of two
was convicted in 1993
1.Shelton
murder,
degree
degree
Superi-
first
postconviction
counts of first
relief in the
motion for
posses-
degree robbery, and
conspiracy, first
all claims.
was denied as to
or Court which
deadly
during
weapon
the commis-
sion of a
Outten,
Nos.
Del.Super., Cr. A.
State v.
See
hearing,
felony.
penalty
of a
After a
sion
1148;
IN-92-01-1154
IN-92-01-1144
a sentence
by
recommended
an 8-4 vote
22, 1997) (Mem.
(Dec.
trial counsel was in failing ineffective I. Facts
prevent object timely to the testi- Bedwell, mony of Lisa who commented on A full statement of the facts relevant to the stand that prison; Shelton had been in appeal the instant is in contained (3) prejudiced by joint Shelton was pen- /4 Only and Shelton II.5 a brief summary alty hearing with Nelson and Outten and necessary purposes appeal. that counsel rendered ineffective assis- 11, 1992, Outten, January On Nelson tance in failing to move to sever the hear- Shelton, and Steven and Christine Gib- ing and adequately to raise the issue on bons, spent day drinking heavily at (4) appeal; direct court erred limit- various locations. Nelson and Steven ing Shelton’s to allocution and that Shelton were brothers. Outten was their counsel was ineffective in failing object cousin. girlfriend. Gibbons was Nelson’s to the court’s limitation at trial and on Their stop brought last the group to a bar (5) direct appeal; penalty hear- they called the “Green Door.” in- While ing prosecutor made an improper com- side, Gibbons struck up a conversation ment concerning Shelton’s failure to ex- victim, Mannon, with the Wilson at the press allocution, remorse in trial bar. bought Mannon Gibbons drinks and counsel was ineffective in failing to raise the two danced. the issue request and to a curative instruc- a.m., Mannon, After last call at 1:00 tion and that appellate counsel was ineffec- Outten, Gibbons, and the Sheltons left the in failing tive to raise the appeal; issue on Green Door. Nelson drove them in car (6) trial counsel rendered ineffective assis- to an isolated street in Wilmington where tance the penalty phase by failing to pulled three defendants Mannon from prepare penalty for the hearing and to the ear severely. and beat him These investigate adequately evidence, beatings caused Mannon’s death. Over by failing to have Shelton examined trial, investigation course of the psychiatrist present and to findings such gave multiple Gibbons accounts of what at the hearing, by failing night. occurred that to the jury Family school and initially Gibbons testified as follows: Court records containing mitigating evi- Nelson stepped and Outten out of the car dence; and Court abused they and either pulled Mannon out or he its discretion in dismissing Shelton’s mo- came out on his own. Steven went behind tion for postconviction relief without grant- the car to be sick. Outten and Nelson ing an evidentiary hearing. The trial began then punching Mannon the face. rejected claims, court all of Shelton’s hold- ballpeen Nelson retrieved a hammer from they were either procedurally the trunk of his car and hit Mannon barred or without merit. head, back of the him causing to fall. Nel-
Shelton contends that the Superior son told Outten to “finish it.” Outten then Court either erred as a matter of law or picked up object that Gibbons described abused its discretion in denying the relief as a sink and struck Mannon ten or more requested connection with the seven top times between his nose and the of claims stated above. agree head, We with the crushing his skull. After Outten *9 well-reasoned Superior finished, decision of the Steven returned and asked what Court, and Superior hold that the happened. nudged Court had Steven Mannon’s (1994), Del.Supr., 650 A.2d Del.Super., 1291 cert. de Cr. A. Nos. IN-92-01-1144 to nied, 1145, 2585, 1148; 1158, 515 U.S. 115 S.Ct. 132 to WL IN-92-01-1154 1997 (1995). 22, (Dec. 1997) L.Ed.2d (Mem.Op.). 834 855718
474 misconduct threatening and passed engaged All then body. three defendants and of around Mannon’s wallet robbed him to the stand intimidating Gibbons retake money jewelry. and his testimony. of He portions and recant her alleges also that constitutional testimony, re- After her initial Gibbons he was confrontation was violated when to stand because she quested retake the cross-examine opportunity denied the to during previous testimony. her had .lied Gibbons’, Gibbons, attor- prosecutors, permitted The court her to recant testimony. testimony new Brown to ex- prior ney Gibbons’ Detective William and same, essentially except she di- surrounding plore the circumstances rectly implicated beating. in the Steven re- subsequent and her recall of Gibbons time, This Gibbons testified she saw Ste- these two ar- couches cantation. Shelton ven with the hammer. She said she saw for assis- guments in a claim ineffective many kick and Mannon punch Steven Finally, he was argues tance of counsel. Gibbons, According to times the face. to a fair trial process right denied his due through all three went Man- defendants because was intoxicated Gibbons and pockets non’s and touched wallet part testimony. of her jewelry. Gibbons believed Steven took (a) Mannon’s necklace. Misconduct Prosecutorial testified that Steven told her to Gibbons im- prosecutors argues Shelton say gone he had off into the woods at the Gib- properly threatened intimidated time of the murder. Gibbons stated that recanting parts previous bons of her into earlier had different versions of given she in Man- testimony implicating story because she was confused. Gib- to raise non’s murder. Trial counsel failed explained also it would bons at trial. specific objection this issue just blaming fair Nelson and Outten when was inef- argues Shelton now counsel in the part Steven also had a murder. object testi- failing fective in to Gibbons’ testimony,
In addition to Gibbons’ the mony her to the when the recalled State physical impli- and other evidence forensic failing stand the issue raise murder. cated Steven After claims prosecutorial intimidation. He also trial, all the court convicted sentenced failing appellate counsel was ineffective three defendants to death. on appeal. raise this issue direct pertinent The additional facts for abuse of This Court reviews appeal concerning relate the details Gib- decision Superior Court’s discretion testimony and the events at trial. bons’ relief.6 posteonviction application facts relating These facts and other de novo.7 Questions law are reviewed theories, postconviction trial theo- Steven’s render inef Trial counsel did not ries, trial and the effectiveness of counsel object to the by failing to fective assistance developed are hereinafter under the indi- intimidation. When prosecutorial issue of headings vidual of Steven’s contentions postconviction relief reviewing a motion they which relate. Rule under Court Superior Criminal Alleged Surrounding II. The Defects proce first this Court must consider Testimong of Christine Gibbons. giv before dural the rule requirements un to the merits of the consideration argues trial counsel him a claim.8 Because derlying denied fair trial because the State State, State, Del.Supr., 8. See v. Dawson v. Flamer Del.Supr., 585 A.2d See 673 A.2d Reed, (1996); Bailey Del.Supr., Harris v. (citing 489 U.S. (1991). A.2d Dawson, 1190; 7. See E.I. duPont 673 A.2d at Co., Co., & v. Shell Oil de Nemours Inc. Del. (1985). Supr., 498 A.2d
475 object failed to testimony to Gibbons’ presumption defense counsel’s con- trial and the issue was not raised on direct strategy.14 duct constituted sound trial appeal, Superior Further, Court Criminal Rule specific defendant “must make 61(i)(3) procedurally bars post- Shelton’s allegations prejudice of actual and substan- appeal conviction unless Shelton can estab- tiate them.”15 Upon review of the facts of (1) default, lish: cause for procedural arguments presented, record and the it is (2) prejudice actual resulting from the clear that can not a showing make failure to assert the claim.9 If “counsel’s sufficient prong to meet either of the to pursue reasonably failure available Strickland test. egregious claim is so as to constitute inef- Shelton must show how trial counsel’s fective assistance under the Sixth Amend- object failure to to retaking Gibbons’ ...,” ment may failure be cause to stand indicates that representa- counsel’s procedural excuse the default and reverse objective tion fell below standard of the prior Attorney conviction.10 error reasonableness. order to determine
which falls short of ineffective assistance burden, whether he has met this we must counsel does constitute cause for relief first grounds determine whether exist for procedural from a default.11 prosecutorial his claim of misconduct. In an attempt establish cause prosecutors We conclude that the default, procedural for his argues did not engage regard misconduct with that trial counsel in failing was ineffective Moreover, testimony. Gibbons’ in object testimony Gibbons’ when she impropriety ference of nonetheless was ex was recalled to the in failing stand and plored adequately by trial counsel and the investigate adequately the issue of prose court below. Because claim Shelton’s cutorial intimidation. Because Shelton did prosecutorial merit, misconduct is without not raise the intimidation issue at trial nor prove he is unable that counsel ren (1) on appeal, prove he must now that: dered ineffective failing assistance “counsel’s representation fell below an ob object. jective reasonableness,” standard of (2) that counsel’s prejudicial actions were The Superior Court and counsel ade- defense, i.e., to his “there is a quately explored reasonable the circumstances of Gib- that, probability but for counsel’s unpro bons’ recantation and story implicat- new errors, fessional proceed result of the ing Shelton in the murder. Before her 4, would have been different.”12 The February return to the witness stand on prejudice 1993, prong of the Strickland standard the Superior Court offered defense requires “attention to opportunity question whether result counsel an Gibbons proceeding of the fundamentally un presence outside the of the about the fair or strong unreliable.”13 There is a circumstances of her return and reeanta-
255, 265,
1038,
688, 694,
668,
Washington,
109 S.Ct.
L.Ed.2d
103
308
466 U.S.
104 S.Ct.
(1989)).
2052,
(1984)).
tion. Outten post- questioned chang- her. On motion and her discussed her lawyer bons relief, court conviction determined: knew story. her that she had Gibbons thus afraid of repeatedly, con- lied was questioning Their covered who had then night charged perjury tacted before was or that she being her the she with there threats testifying, whether with murder because charged [were] would be prosecutors, what discussed was out helped the bar. she lure Mannon previous with night, conversations lawyer Gibbons that if Her advised she lawyer, charge, of a perjury her risks truthfully, and testified retook stand flight her from the around courthouse if subsequently would have a defense she thirty being before was minutes she charged perjury. questions asked and so forth.16 these Thereafter, lawyer present, with her on Upon her return to the stand witness the State that she need- Gibbons informéd 1993, February 4, at Gibbons testified testimony her because change ed length chronology of events lead- about But something say.”19 I need “there’s her her ing to return and motivation in court to retake the appeared before she returning. indi- Never once did Gibbons stand, from the ran courthouse. Gibbons that had cate the State threatened surveil- stopped placed was under She recantation, coerced her or otherwise en- stand. lance until she retook witness The gaged prosecutorial misconduct. stand, tes- retook she When Gibbons sequence surrounding of events Gibbons’ tified that was involved” [Shelton] “Steve recantation as follows. was “I it.”20 and that all three of them do saw initially Gibbons testified on the witness explained that she had returned Gibbons 21, January January stand from 1993 to she had lied on stand.21 Gib- because During testimony, her Gibbons’ that she bons later returned testified tended night account of the of the murder “I times the stand because lied numerous exculpate Mannon’s death. straighten all I did it out. and that want testimony January After her Gib- just I wanted to come clean.”22 may lawyer bons to her “that she indicated recantation, she testi- During Gibbons’ say, have more to and that she wanted 17 of the murder Ste- night fied that on the lawyer relayed talk State.” repeated- punched ven and kicked Mannon the prosecutor. that information to face a and “in the ly up” “from his waist 3, 1993, February prosecutor On 23 also testified couple of times.” Gibbons meeting and called to schedule a Gibbons it” to said “finish Nelson Steven talk,” “we but told Gibbons that need to Outten.24 say at- nothing more until Gibbons’ testimony, hew Gib- regard With to her testified
torney present.18 Gibbons had call, bons stated that Outten no one from the State story her before she change asked her they threatened or indicated Gibbons testi- initially had Gibbons also testified. perjury. believed had committed On she the Sheltons and Out- 4, 1993, fied that she feared February pros- Gibbons called the indicate on to ten. Never once did Gibbons ecutors and told them she wanted 4, 1993). (Feb. II, Op. (emphasis at add- 21. Tr. at 168-69 16. Shelton Mem. ed). 12, 1993). (Feb. at 133 22. Tr. (Feb. 1993).
17. Tr. at 179-80 12, 1993). (Feb. 4, 1993). (Feb. 23. Tr. at 21-22 Tr. at 4, 1993). (Feb. at 19. Tr. 12, 1993). (Feb. 24. Tr. at (Feb. 1993). 20. Tr.
the stand that the State had coerced her
little to what
expressed
she
1993 and
by threatening
recantation
what then was considered at trial.
perju-
*12
her with
ry
any
charge.
or
other criminal
Gibbons
correctly points
light
Shelton
out that
prosecution
also testified that
never
repeated
Gibbons’
inconsistent state-
promised
anything
her
in return for her ments,
it
is reasonable to
that
assume
Thus,
testimony.
recanted
we find that
charged
Gibbons feared she would be
with
insufficient evidence exists in the record to
if
perjury or murder
she did not “come
support a claim of
miscon-
prosecutorial
It
that
likely
clean.”
is also
Gibbons felt
duct.
an underlying pressure from the State to
Furthermore,
testify truthfully.
Gibbons
argues
that
alleged
Gibbons’
stand,
knew that
if she retook the
she
investigator
statements to
Kent
Carl
would have a
to any subsequent
defense
April 1996 indicate
pres-
that Gibbons was
prosecution.
sured into changing
testimony.
her
Ac-
by
But these
expressed
fears
Gib
cording to the
reports,
prosecu-
Kent
bons are not
a pattern
indicative of
repeatedly
tors
told
“they
Gibbons
wanted
misconduct
part
prosecution.
on the
of the
three,
just
Jack,”
all
Nelson and
if
reasonably
Even
Gibbons
did believe
they threatened her
if
“[pjerjury
with
she
that the State was
her
threatening
testify
did not
previously
what she had
perjury, this is not reversible error under
told them.”25 Gibbons also told Kent she
cases,
In
circumstances.29 most
mere
“had no
implicate
[choice] but to
all three
ly warning a defendant of the conse
keep
myself
jail.”26
from going to
She
quences
perjury
is not reversible.30
stated that she felt “if she didn’t do what
Most importantly, Gibbons’
wanted,
statements
they
I
go
stay
leading up
and the events
to her recanta-
jail.”27 In
reports,
the Kent
Gibbons also
tion in no way should have alerted defense
expressed that she
pressure
felt
from
counsel that the
“substantially
State had
allegedly
threats
made
the Shelton fam-
interfered with
free and unhampered
ily on her life and her property.
determination
might
the witness
have
testify
made as to
if
whether
so as
The Superior Court held that the
to the content of
testimony.”31
such
After
reports
Kent
presented “insufficient new
discussing the situation with Gibbons be-
information to warrant a hearing on the
recantation,
February
fore her
de-
return,”
circumstances of Gibbons’
finding
fense
fully
counsel was
aware that it was
reports
“[m]uch
what she
will,
prosecu-
Gibbons’ own
and not the
known to the
and even more was
intimidation,
tion’s
in-
threats
that had
known to Steven’s counsel based on what
spired
change
testimony.
Gibbons to
her
jury’s
she said outside the
presence.”28
agree
We
with the conclusion of the Supe
addition,
we are persuaded that trial
rior Court. The Kent reports present no
reasonably by
counsel acted
fact that
prosecutorial
new evidence of
misconduct
February
Steven’s counsel
because Gibbons’
joined
statements
1996 add
Nelson and Outten’s counsel in re-
Kent,
Investigative Rpt. by
25.
prosecutor
Carl B.
at 7
fer
to advise witness who was
1996).
(April
telling
might
prosecut-
two stories that he
perjury).
ed for
26.
Id. at 9.
30. See id.
Id.
Thomas,
Cir.,
31. United States v.
6th
488 F.2d
II,
Op.
28. Shelton Mem.
(holding
by gov-
misconduct
directly produced opportunity
ernment
Cir.,
Smith,
prejudicial
United
See
States v.
10th
to draw
influences from fact
(1993) (holding
testify).
F.2d
it was no threat
that witnesd
failed
directly in-
all individuals
cross-examine
ground
on the
questing mistrial
argues
He also
witness.32 volved in the recantation.
incompetent
Gibbons was
nature
request
of the self-interested
Court denied
because
The
to the trial
lawyers’
affirmed the deci-
comments
and this Court
of the
mistrial
court,
object-
appeal.33
counsel should
sion on
defense
testimony
unsworn
and re-
ed to their
engage mis-
did not
prosecutors
lawyers.
to cross-examine
quested
testimony of
regard
conduct with
coun-
appellate
also contends
find
Accordingly, we
Christine Gibbons.
to raise the
faffing
deficient for
sel was
*13
Superior
and the
that both trial counsel
Shelton,
According to
appeal.
on
issue
the circum-
adequately explored
Court
protect
failure to
defense counsel’s
to
recantation.
leading up
stances
Gibbons’
establishes cause for
right to confrontation
in front
two
had Gibbons’
stories
Superior
default under
procedural
in
duty
carried out its
determin-
of it and
61(i)(3).
Rule
Court Criminal
credible.34
version was most
ing which
unreason-
trial counsel did not act
Because
11(a)
Opin-
of this
As discussed above
alleged prosecuto-
ably
regard
with
recantation,
ion,
the
initial
after Gibbons’
misconduct,
cannot
appellate counsel
rial
lawyer recited
prosecutors and Gibbons’
failing
to raise the issue
be faulted
leading up Gibbons’
the court the events
Shelton, therefore, has failed to
appeal.
did not ob-
lawyer
recantation. Shelton’s
un-
default
procedural
cause for his
show
that
request
he
ject
their discussion or
61(i)(3).
Rule
Criminal
der
lawyers’
to cross-examine
permitted
for his
failed to show cause
Because he has
statements.
default,
need not
this Court
procedural
can
whether Shelton
demonstrate
consider
that trial coun
claim
Shelton’s
him
prejudice.35
denied
alleged
sel’s
ineffectiveness
unpersuasive.
right
confrontation
(b)
Lawyers
Failure to Cross-Examine
arguing that
Here,
essentially is
Recantation
Involved in Gibbons’
lawyer did
and Gibbons’
prosecutors
truthfully to the
speak candidly or
claim that
not
makes the related
Clause
court.36 While
Confrontation
ineffective assis-
defense counsel rendered
in a
a defendant
right
protect
does
object
to the statements
faffing
tance
cross-examination
criminal case to conduct
involved
by the individuals
made
him,37
defendant
against
“[a]
re-
of witnesses
leading up to Gibbons’
circumstances
who
a witness
to confront
has no
argues that he should
cantation. Shelton
at trial.”38
evidence
provide any
not
does
opportunity
afforded the
have been
"(a)
knowingly:
4, 1993).
lawyer
not
(Feb.
shall
vides that
32. Tr. at 124
(1)
fact or
of material
a false statement
make
I,
(hold-
650 A.2d
33. See Shelton
3.3.
R.
a tribunal.” D.L.R.P.C.
law to
despite
state-
ing
Gibbons’ inconsistent
that
ments, "[c]ompletely striking
testi-
Gibbons'
15,
Fensterer,
18-
474 U.S.
v.
37. See Delaware
excessive, and the
mony would have been
(cit-
(1985)
19,
292,
sy,”
falling
“not
down
when
police.
initial statements to the
Proba-
drank on the trial dates.48
bly more than
witnesses in most
most
trials,
great
Gibbons was observed at
Generally, allegations of intoxi
easily
length. Her demeanor could be
by
participant require
cation
a trial
a fact-
compared.
finding hearing because individuals intoxi
they
cated at the time
are offered as wit
Gibbons walked close to counsel
testifying.49
approaching
are
from
case
the witness
nesses
excluded
while
stand,
lawyer.
cause for his failure to
Be-
primarily
order
establish
Nelson’s
recanted,
hearing
sobriety,
ultimately
on
fore she
Nelson’s
request
Gibbons’
than
claims that at the
of trial he
had
incentive
Ste-
Shelton
time
counsel
more
about
question
did not
and could not have known
ven’s counsel to raise the
know
Op.
Appellant’s
at
does
48. See id. at 4.
Br.
33. Shelton
appear
couch this contention in a claim
Rather,
for ineffective assistance of counsel.
Massey
Del.Supr.,
generally
v.
49. See
argues
Shelton
that he was denied a fair trial
(1988) (citing
541 A.2d
Texas,
1258
Estes
because Gibbons was intoxicated on the stand
532, 542,
S.Ct.
381 U.S.
when she
as to his involvement in the
testified
(1965)) (holding
L.Ed.2d 543
mere introduc-
murder.
juror ingesting
tion of some evidence of
alco-
drugs
pre-
or
is insufficient warrant a
hol
Kent,
Investigative Rpt. by
45. See
Carl B.
at
sumption
prejudicial
against a
of
influence
1996).
(April
defendant);
Am.Jur.2d,
§ 185
Witnesses
46. See id. at 10.
(1992).
Kent,
Investigative Rpt. by
Carl B.
13, 1996).
(May
Accordingly,
Superior
All
under
drinking.
whether Gibbons was
61(i)(3),
defense,
counsel,
Rule
Shelton is
prosecutors and
are Court Criminal
procedural
cause for his
unable to show
experienced
capable
are
counsel and
prove
default and is unable to
that he was
detecting
signs
intoxication.
testimony because
prejudiced
Gibbons’
too,
clients,
They,
along with their
had
inculpat
not intoxicated when she
she was
at the
hearing,
been
bail
the trial video
Therefore,
ed
the murder.
on
Shelton
Therefore,
deposition and the trial.
overturn Shel
ground,
we decline to
they had a clear benchmark to detect
conviction and death sentence.
ton’s
any change
sug-
Gibbons’ demeanor
gestive
drug consumption.
of alcoholic or
III.
Ineffective Assistance
Counsel
Further,
Nothing was raised.
Steven
Regard
to Lisa Bedwell’s
and Nelson knew Gibbons better and
Had Been
Comment
Shelton
longer than counsel and the
Yet
Court.
Incarcerated.
January
nothing
her
demeanor
argues that he was denied a fair
Shelton
prompted
lawyers
them to alert
their
witness,
trial because a defense
Lisa Bed-
may
drinking
that Gibbons
have been
well,
previously
testified that Shelton
had
consuming drugs.50
Shelton,
According
been
incarcerated.
We defer
Court’s obser-
defense counsel rendered ineffective assis-
signs
vation that Gibbons exhibited no
by failing
pre-
tance
to move in
limine
intoxication
if
while
the stand. Even
testifying
vent Bedwell from
about Shel-
drinking,
Gibbons were
Shelton is unable
past,
failing
ton’s criminal
and for
to make
to show the existence of unknown facts
timely objection
to Bedwell’s statement.
precluded
raising
him from
the intoxi-
despite
contends that
the court’s
Shelton
cation
at trial
appeal.51
issue
or on
instruction,
curative
the inadmissible state-
ment
a violation of D.R.E. 404 and
if
Even we found that
had es-
deprived
of his constitutional
cause,
tablished
Shelton would not be enti-
process.54
to due
tled
relief because he can not show
at trial
Shelton failed to raise this issue
*16
actual prejudice
alleged
from Gibbons’
in-
Therefore,
appeal.
Superior
or on direct
reports,
toxication.
the Kent
Gibbons
61(i)(3)
Criminal Rule
bars relief
during
claimed she was intoxicated
pro-
unless Shelton can show cause for his
day’s
second half of her first
testimony.52
resulting prejudice.55
cedural default and
But Gibbons also
stated
she was not
He is unable to meet this burden.
day
intoxicated on her
in
second
the court-
room,
co-defendant,
Outten,
original story
when she recanted her
Jack
Shelton’s
Thus,
exculpated
apparent pur-
that had
when
Bedwell for the
Steven.53
called Lisa
murder,
credibility
him in
of
implicated
pose
undermining
she
Gibbons
of
intoxicated,
was not
with
had known
the result that he Christine Gibbons. Bedwell
approximately
years
nine
prove
is unable
Gibbons’ intoxication Gibbons for
According to
prejudiced him.
the two were once friends.
crimes,
II,
404(b)
Op.
provides: "Other
50. Shelton Mem.
at 64-65.
54. D.R.E.
crimes,
wrongs or acts. Evidence of other
Cir.,
Singletary,
49 F.3d
See Porter
11th
prove
wrongs
or acts
not admissible
(1995) (holding
petitioner
fact that
person
of a
in order to show that he
character
possess
reasonably
did not
could not have
conformity
acted
therewith.” D.R.E.
cause if
obtained evidence fails to establish
404(b).
could
other known or discoverable evidence
claim).
supported
have
Dawson,
61(i)(3);
Super.
Ct.Crim. R.
Kent,
Investigative Rpt. by
Carl B.
at 10
Bedwell, day of fair trial called her on the Gibbons being prison him with no her to sell stereo record the murder and asked During of the other individu- money. information Gibbons needed because conversation, prison clearly and I provided having Bed- als been Gibbons I grounds of the involve- for mistrial. ask multiple well with versions believe it’s co- culpability of the individual out of this my ment and client be mistried murder. in Mannon’s defendants case.57 cross-examination, sought the State On The Court denied Shelton’s biased favor to show that Bedwell was for a mistrial. The court stated motion The State asked about of Steven Shelton. jointly that the trial was held that the fact relationship with Gibbons Bedwell’s The meaningless. irrelevant was The each of the defendants. issue case lawyers that the court indicated colloquy following out of the bar arose “stay to instruct the witnesses needed prosecutor and Bedwell: between areas” when examin away problem from Shelton, Q. you about do How Steve Nevertheless, ing them on the stand.58 Shelton, also? know Steve clear, “specific, that its the court concluded him, you I I know
A. know him. any preju cured immediate instruction” don't couple I him a of times. know. met to Shelton.59 might have resulted dice if him? Q. you You know him see ruling, after the court’s Immediately A. Yes. he wished to termi- indicated that Shelton Q. long you how And about representation. Shelton lawyer’s nate his known Steve? admitted, that argued, and his trial counsel you A. did ask me about Steve? cross-examination, What had Shelton Bedwell warned trial counsel mean, I Q. long, period what How that she had known say about to time? time, asked At that prison. since I can’t—I don’t A. I don’t even know. line of object to the State’s trial counsel know. made the state- questioning, but Bedwell years, also? Q. A number of before trial counsel prison ment about Well, got it was after he A. No. object. could stand time. prison out of last the court that he informed Trial counsel be stricken That answer will Court: objecting relevan- process was in the quite clearly and the is instructed out the Bedwell blurted cy grounds when disregard it. *17 nor tri- prosecutor statement. Neither we Can Counsel]: Defense [Shelton’s 56 that anticipated Bedwell al counsel had come to sidebar? prose- a statement. would make such sidebar, lawyer moved for At Shelton’s cutor informed the court: mistrial. a Jencks statement provided I have been honor, gone we tried —We Your it doesn’t lawyer] and from ... [Outten’s risk of a mistrial lengths at the great mentioned, got out she mention that these men trying all three of because to this witness jail. I never talked kind of absolutely avoid that together to she was I had no idea today. Now, before there has been terrible thing. my certainly, that. And going say and I do not my done to client prejudice question. open-ended an get question can was from now on he believe that 16, 1993). (Feb. (Feb. 1993). 58. Tr. at 89 56. Tr. at 86-87 (Feb. 16, 1993). 16, 1993). (Feb. 59. Tr. at 89 Tr. at 88 bias, Second, long It was as to she had Bedwell was witness as how Outten’s known Steven Shelton.60 produced impeach whom Outten Gib- testimony. Any effort undermine bons’ lawyer responded: Shelton’s Gibbons, by who then had retaken the It Again, your honor. was a statement Shelton, clearly in implicate stand to was supplied by the State —I had no idea Therefore, interest. we are Shelton’s best my whispered my until client I ear. persuaded by argument Shelton’s that really didn’t think it going hap- was trial counsel should have moved in limine pen, thought because I that had she proffering to silence a witness who was properly prompted.61 been testimony in Shelton’s This conclu- favor. argues now that trial counsel by the fact that trial sion is bolstered “preemptive objec- should have made a no counsel had indication Bedwell tion” in the form of a motion in limine to stay prison would mention Shelton’s un- prevent Bedwell testifying from about already til it too late. was Shelton’s incarceration. Shelton also con- tends that trial counsel was deficient Third, Bedwell’s comment brief and was fading timely objection to make a to Bed- did not involve the nature of the crime for testimony. well’s disagree. We incarcerated, which Shelton was nor the First, Therefore, the record length stay. shows neither the of his the com- nor trial State counsel had reason to antic- only mildly prejudicial, ment was if at all. ipate that Nevertheless, Bedwell would answer innoc- Court cured question uous the manner that any prejudice might by she did. have occurred Bedwell’s comment was a surprise striking sponte to both sua in- the answer and sides. It came in response to the State’s structing disregard the com- inquiry context, relevant on the issue of Bedwell’s ment.62 In a similar this Court alleged bias in favor of Shelton. There- held that “[prejudicial normally error will fore, question objectionable was not judge’s be cured the trial instructions and trial counsel object had no cause to jury.”63 Presumably, jurors Moreover, point. as soon as Shelton followed the court’s instruction.64 trial apprised counsel of the likelihood that Here,
Bedwell
prison,
would mention
it was al-
cautionary
instruc
ready
tion,
too late. Bedwell blurted out her
it
given immediately,
because
statement almost contemporaneously with
prejudice may
sufficed to cure whatever
warning
Shelton’s
to trial counsel.
have occurred.65 Under
thé
circum-
(Feb. 16, 1993).
60. Tr. at 100-01
prison
previous
a life
sentence for
con-
charge).
viction on the same
(Feb. 16, 1993).
61. Tr. at 101
id.;
State, Del.Supr.,
Claudio v.
(1991);
A.2d
Kornbluth v.
State, Del.Supr.,
62. See Dawson v.
637 A.2d
(1990).
Del.Supr.,
580 A.2d
See also
(1994) (holding
no error where trial
Floudiotis,
State, Del.Supr.,
et al. v.
726 A.2d
judge
denied motion for mistrial when
(1999) (holding
curative in
penalty phase prison guard testifying blurted
usually
risk”).
struction
suffices to make an inadver
escape
out “death sentence and
harmless) (citing
tent error
Zimmerman
*18
State,
(1993)).
Del.Supr.,
burden
substantial
Under
Court Criminal
61(i)(3),
Is
Shelton
Unable
Show
prejudice requisite
tice and unfair
for
His Procedural Default
Cause for
showing
necessity
separate
trials.”74
Prejudice.
Actual
that, although
held
antagonistic
We
de-
fenses between co-defendants is a fact to
argument
Even if we consider Shelton’s
when determining
considered
whether
unadjudicated,
previously
Superi-
as
under
granted,
severance should be
“[t]here
61(i)(3),
Criminal Rule
Shelton
antagonism
no such
the instant case.”75
prejudice
unable to show cause and actual
Accordingly, we found that the trial court
at trial or
his failure
raise the issue
did
its
by denying
not abuse
discretion
appeal.78 Again,
on direct
Shelton couches
motion to sever.76
in a claim for
argument
ineffective
in which he must
assistance
counsel
regard to
Superior
With
the bar of
performance
show
counsel’s
was ob-
61(i)(4),
Court Criminal Rule
Shelton ar-
jectively unreasonable and that he was
gues
adjudicate
this Court did not
prejudiced by the outcome.79
penalty phase severance issue now raised
postconviction when this
argues
joint penalty
Court considered
that a
phase hearing deprived him of his constitu-
guilt phase
severance issue on direct
tional
to individualized consideration
appeal. Shelton contends that the issue at
imposition
before the
of a death sentence.
bar does not
relitigation
constitute a
of the
Shelton contends counsel was deficient in
issue,
prior severance
but addresses a new
failing
penalty
to move to sever the
hear-
argument
and distinct
not raised on direct
ing for the following reasons:
appeal.
(1) The court
limited
improperly
Shel-
disagree.
We
A motion to sever the
allocution;
ton’s
trial necessarily
penalty
includes the
hear-
(2)
negative
pertaining
evidence
ing
penalty
because the
a
hearing is but
Outten
and Nelson
part
smaller
of the trial. Our decision on
nega-
“smeared”
and had a
Steven
direct
appeal
Shelton had not demon-
jury’s
tive influence on the
view of
strated the unfair prejudice required to
defendants;
all
separate
mandate
trials included the relat-
argument concerning
ed
prejudice
unfair
it
Because
is human nature to treat
flowing
joint penalty hearing.
from a
Ac-
similarly
individuals
situated in an
cordingly, Superior Court
Rule
Criminal
manner,
joint
equal
61(f)(4)precludes
relitigating
Shelton from
unduly
phase hearing
pressured the
the severance issue
guise
under the
jury to treat
the defendants identi-
ineffective assistance of
cally;
counsel.77
“disposition
74. Id.
that the
of Skinner's chal-
lenge
specific jury
the absence
instruc-
Id.
fact,
was,
appeal
tion ...
in his direct
substantive resolution of Skinner’s
in-
76. See id.
of counsel's claim.” Id. Ac-
effectiveness
State, Del.Supr.,
77. See Skinner v.
607 A.2d
summary
cordingly, the
Court's
de-
Skinner,
(1992).
appeal,
on direct
Super.
pursuant
nial
claim
of Skinner’s
despite
Skinner claimed that
sel’s failure
struction,
defense coun-
61(i)(4)
Ct.Crim. R.
was correct.
request
particular jury
in-
plain
judge
it was
trial
error
61(i)(3); Younger,
Super.
Ct.Crim. R.
See
give
not to
at
instruction. See id.
(4) fact, Nelson desire to to move put prior Shelton’s be for severance.85
death, his
on the
penalty hearing,
silence
issue of his
counsel and the court dis-
childhood,
deprived
and inaction at
cussed the severance issue in an office
prejudicial/an-
the penalty phase
conference,
was
counsel never moved for
but
Steven;
tagonistic to
the court
it
grant
severance and
did not
ruled
sponte.
appeal,
sua
As we
on direct
(5)
jurors
It is unrealistic to believe the
requisite antagonism
the co-
between
segregate
compart-
were able to
lacking
request
defendants was
a sever-
mentalize
aggravating
and miti-
Finally,
ance.86
produce
Shelton fails to
gating
apply
fairly
factors and
them
representation
evidence that counsel’s
deféndant;
to each
penalty phase
unprofessional
was
(6)
factors,
Mitigating
deprived
such as
Thus,
any way.
are
we
convinced
childhoods,
joint
trivialized
are
trial,
joint
pursue
counsel’s decision to
a
penalty hearings
argu-
when similar
joint penalty hearing,
a
rea-
thus
was
by multiple
ments are made
defen-
sonable
counsel
been
because
would have
dants;
arguing
penal-
for separate
unsuccessful
joint
A
penalty phase hearing de-
ty
that been
de-
hearings had
Shelton’s
prived
calling
Steven from
Nelson
strategy.
fense
n
testify
Shelton
a witness to
as
as
culpability,
minimal
Steven’s
or to
to demon-
Because Shelton has failed
support
of a
performance
defense
was ob-
strate that counsel’s
deprived
unreasonable,
childhood.80
jectively
we
not ex-
need
ineffective
plore
alleged
whether counsel’s
Despite
allegations,
these
prejudiced Shelton.87 Never-
assistance
has presented no facts to overcome the
theless,
sepa-
failure to
request
counsel’s
“strong presumption
rep
that [counsel’s]
hearing
prejudice
rate
did not
penalty
resentation
professionally
reasona
Shelton.
appeal,
ble.”81 As we held on direct
joint
Shelton has failed to show that
trial
First,
hearing
joint penalty
him
penalty hearing
caused
substantial
did not
of the
deprive Shelton
injustice
prejudice.82
and unfair
appears
argue
allocution. Shelton
First,
speak fully
he was
in allocution
unable to
joined
properly
the State
all
prejudi
because
would be
his statements
three defendants
the same indictment.83
argument
cial to
“Ordinarily,
are
his codefendants. This
when defendants
indicted
runs
jointly,
they
together.”84
contrary
tried
tactical decisions
are also
Second,
outset,
from
made
initially
Shelton and trial Shelton
hearing
made
evidence
present mitigating
counsel
a tactical decision not to
not to
Outten,
Appellant’s Op.
Del.Super.,
46-47.
Cr. A. No.
80. See
Br. at
85. See
v.
State
IN-92-01-11440-1158,
208294,
WL
1992
7,
(Nelson
1992)
Herlihy,
(Mem.Op.)
(Aug.
J.
Flamer,
81.
585
A.2d
753.
sever).
Nelson
When
Shelton's motion
sever,
Superi-
his motion
Shelton made
or
I,
(citing Lamp
82. Shelton
A.2d at 1298
650
apathy on
Court was aware
Shelton’s
State,
Del.Supr.,
v.
465 A.2d
kins
takes no
Steven Shelton
issue. “Defendant
(1983)).
id. at
position
motion.” See
on his brother’s
should
“Oddly enough,
the defendant who
522(a); Super.
§
83. See 11 Del. C.
Ct.Crim. R.
pursuing
is Steven Shelton
this motion
State,
8(b); Manley
Del.Supr.,
he is
709 A.2d
....
Court has considered whether
error,
denied,
(1997),
inviting
ground
appeal, by this
cert.
U.S.
stance.” See id. at 7.
(1998).
119 S.Ct.
L.Ed.2d 176
I,
jury guilty had him of a heinous found the ignores also the fact that Shelton so, acknowledged, murder. To do jury trial court instructed the twice offending jury would risk the the as to each separately consider evidence of a prompting greater likelihood example, the conclu- defendant.91 For at death sentence recommendation. Ste- penalty hearing, of the court stat- sion the had ven indicated to his trial counsel and jury: ed to the ap- the Court be his im- In the to be considering punishment proach prior indicating to the Court the recommendations, you posed your Thus, parameters of allocution. those at all that each must times remember way parameters no affected his talk to by must be defendant’s case considered jury.88 the Each is en- you individually. defendant addition, In fails to indicate what titled to an individualized determination he would have differently appropriate punishment said allocution of the recom- penalty hearing had the imposed regard been severed.89 mendation to be without Thus, prejudiced by coun- your was as to the remain- determinations failure the sel’s severance of You should also re- ing defendants. request penalty hearing.90 any alleged to member that statements may by any have been made defendant Second, the Steven claims that you only by be considered in determin- pen of presence Outten Nelson at his ing punishment recommendation him alty hearing negative impact had imposed particular on the defendant argues and all of the defendants. Steven made such Any who the statement. negative that he was “smeared” consid- may statement not be used or pertaining evidence to Outten and Nelson. way any by you any against ered any But he fails point evidence the other defendants.92 him, improperly “smeared” nor does he jury evidence it was vote on Steven’s sentence proves jurors segregate difficult for him to his case from evidence that followed segregate the defen- his co-defendants. Steven court’s instruction presented In hearing case at the with three Steven Nelson Shelton’s penalty own dants. case, eight the vote to four in favor testifying witnesses on his behalf and Ste case, In in allocu sentence. Outten’s addressing ven himself the death addition, of death. the vote was seven to five tion. Steven overlooks favor Therefore, the defen- negative did consider fact that much of substantial II, open- allocution Op. at At 90. We will discuss the issue of 88. Shelton Mem. 92-93. fully Opinion, V this hearing, more section penalty statements infra. "My jury: Shelton’s counsel stated to the issued the first 91. The instruc- you me to that he client has instructed advise hearing began. See before tion begging this case.” will not be life in 1, 1993). (Mar. The second Tr. at 40-41 (Mar. 1, 1993). at 55 Tr. at the of the occurred conclusion instruction 1993). (Mar. 4, hearing. See Tr. at 71-72 Strickland, U.S. 104 S.Ct. (Mar. 4, 1993). 2052; Flamer, at 71 A.2d at 92. Tr. deceased, individually making nally, dants when its recom- now that Nelson is it is impossible mendation. We are convinced that prove Steven to what Nel presence joint of Nelson and Outten at the son would have said had called him Steven penalty hearing deprive did not penalty hearing. Steven as a witness at the his constitutional to individualized assuming trial counsel had Even *22 imposition consideration before the of a failing been deficient for to move to sever death sentence. hearing, the penalty prej Shelton was not claim, by a related we are not udiced counsel’s failure to On do so. Shel persuaded by argument proven Steven’s that the ton has not probabili reasonable that, error, jury by ty influenced jury was Nelson Shelton’s but for counsel’s the pres decision to remain silent and not to would have recommended a life sentence mitigating during penalty ent evidence the rather than death.95 The finding same counsel, phase. apa applies appellate Steven contends that Nelson’s who failed to thy antagonistic appeal severing and inaction was to him. raise on the issue of But fails to realize that trial penalty phase. Steven jury court never informed the that Nelson Ineffective Assistance V. of Counsel opposing imposition of the
was
Regard
with
to Allocution
penalty.
ignores
death
Steven also
jury
eight
fact that the
voted
to four as to
argues
Superior
that the
him
both
and Nelson. This shows that the
right
penalty hearing
violated his
to a fair
against
did not hold Nelson’s silence
discussing
him
by prohibiting
from
agree
him or
with the Superi-
Steven. We
January
events of
argument
or Court
Steven’s
“over
Shelton,
According
allocution.
this lim-
looks the
aggravating
substantial
circum
...
iting
chilling
instruction “had a
effect
independently
stances
to Nelson
applicable
fully
him
prevented
expressing
from
and Steven ....
argument
This
no more
feelings
jury,
including any
his
conjecture.”93
than
regarding
statements
relevant matters
crime, his
such as the circumstances of the
Finally,
joint
Steven claims that a
culpability,
any.”96
conduct and relative
if
penalty hearing precluded
calling
him from
testify
infringed
Nelson as witness to
as to Ste
Shelton contends the court
support
upon
present
minimal
or to
culpability,
right
ven’s
his
his constitutional
mitigating
deprived
mitigating
by limiting
defense of a
childh
evidence
his
argument
speak freely
Namely,
ood.94 This
is without merit.
in allocution.
First,
argues
limiting
does not indicate what Nel
that the
instruction violat-
Steven
son would have said about the circum
ed his
to allocution under
32, as well as the
stances of the murder to substantiate his Court Criminal Rule
fact,
culpability.
claim of minimal
there
and Fourteenth Amendments of
Eighth
strong possibility
was a
Constitution. This issue
Nelson would
United States
pointed
finger
presented
at
had
was not
to the trial court at the
Steven
Ste
Second,
hearing,
objection
ven called
there is no
no
was raised at
penalty
Nelson.
limiting
indication in the record that
ever
time to the court’s
instruc-
Steven
tion,
testify
proffer
asked Nelson to
on his behalf. Fi
no
was made of the substance
II,
Op.
testimony
Shel-
93. Shelton Mem.
at 85-86.
sion of the
witnesses.
plead
apologize
ton refused to
for his life or
presented
sup-
94. Shelton
three witnesses in
for his actions.
port
deprived
of his
defense of a
half-brother, Edward,
his
his half-
childhood:
sister,
Flamer,
which he cannot talk about the events talk yourself, your about background, 11,12,1992. January your upbringing, your education, your me, Trial your Counsel: Excuse home, Honor. any folks at alcohol prob- abuse lems, things like that. You can talk The Court: He can’t get he’s into —if about all allocution, things you those as much speaking as he cannot dis- just want. You can’t talk cuss the about the January events 11 and facts surrounding the murder. Do you understand that?
Shelton: Yes.100 Honor, Trial Counsel: Your he under- At the penalty hearing on March stands that. He can’t talk about spoke briefly allocution. evidence. What he would in- factual The entire text of his allocution is as fol- tend to address them on is his lows: life matter, feelings about this Ladies and gentlemen jury, of the I that he believes and understands that you stand before plead my not to life. *24 he does that and does not talk about if I feel wrong improper that’s circumstances, any that he factual basically disrespectful to the victim’s can do that without cross examina- family and to mine. The State has ,98 tion painted picture, picture a and that is not Later in day, granted the court Shel- very pretty, pertaining my to me and co- request ton’s to represent himself during just defendants. And I would like to the penalty hearing with trial counsel act- present to jury a different side or a ing only “stand-by as counsel.”99 At that different to meaning Steven Shelton. point, the following colloquy occurred be- The State pictured being has me as a tween the court and monster, Shelton: being rapist, being as a as a individual, you violent but as heard Further, from
The Court: it does not prevent my family, that’s not only so. The State you way from speaking to the presents picture. one side of jury in you allocution and to me. Do There’s every story. two sides to And understand that? just presents the State negative a side. Allocution, Shelton: I don’t— The has guilty found me of these The Court: very Allocution is a technical allegations, jury’s and now it’s the turn word, speaking on your to render a verdict. And verdict is own behalf. I apologize using for jail either life in Again, or death. I’m word that lawyers most [even] don’t life, not plead just here to my but know. Allocution is a very legalistic ask the jury to be fair in their decisions. way for asking sentencing authori- That’s all I say.101 have to ty, whether a judge jury, it’s or to give you mercy, spare your life in this Shelton’s strategy present was to little case, and you sentence to life. That’s penalty hearing evidence at the means, really what it explain your to speak and not to about the circumstances humanity, you know. of the murder allocution.102 But he (Feb. 1993) (Mar. 1993). 98. Tr. at (emphasis 56-57 101. Tr. at 62-63 supplied). 6-7, 10, (Feb. 1993); 102. See Tr. at 14-15 (Feb. 1993).
99. Tr. at 88 17-57, (Mar. 1993). Tr. at (Feb. 26, 1993). 100. Tr. at 93-94 Thus, was “the ineffec- most all felonies death.107 argues
now counsel rendered object failing response tive assistance to the tribunal’s invi- defendant’s allocution, limiting plead- court’s instruction had little to do with speak tation prejudiced by he was counsel’s leniency but was the defendant’s ing for omission. present one of the only opportunity might arrest specific legal defenses which
(b) History Allocution and its proceedings.”108 Development under Modem com- purpose Allocution had another at Criminal Procedure only law. convicted defen- mon Not were right is a Allocution historic common-law death, were put they “placed dants also At capital defendant case.103 This meant in a state of attainder.”109 law, of the common allocution consisted property was forfeited to the crown their asking [had] court’s defendant “if he corrupt “of and their descendants declared why judgment death] to offer anything [of Before land or title were taken blood.”110 against should not be him.”104 awarded descendants, the court afforded them from provided Allocution the accused with their ances- give why allocution to reason only four opportunity one of not have condemned.111 tor should been strictly he why defined reasons should provide the failure to allocu- Accordingly, (1) person be executed: he was not the capital tion cases constituted reversible (2) convicted; clergy he had benefit of error.112 (3) insane; pardon; or if a woman, she was pregnant.105- development of modern crimi- With the law,
At
as
procedure,
common
allocution was essential
nal
such
counsel
testify,
need
permitted
because the accused was neither
and the accused’s
to have
testify
counsel
trial nor to
law allocution diminished.
common
*25
Furthermore,
defense,
her
Today,
argued, “any
including
or
own behalf.106
the
it is
law,
judge possessed
at
be
sentencing
recognized
little
discretion those
common
can
mandatory
up
because the
al-
the
punishment
properly brought
by
for
counsel
788,
Vaccaro,
103. The doctrine
R.I.
403
of allocution is based on
tion.” State v.
121
649,
(1979) (citing
four
rett, Allocution,
England.
Chitty,
cases from
See Paul W. Bar-
A.2d
1
Crimi
650
115,
State,
(1944)
(3d
ed.));
9 Mo. L.Rev.
121
Law
Am.
Harris v.
nal
407
265,
344,
120,
(1986).
(citing Anonymous,
Eng. Rep.
3 Mod.
87
Md.
509
306
A.2d
Q.B.
(K.
1682-1690);
Regina
175
Rex &
630,
(K.B.
Geary,
Eng.
v.
2
Rep.
Salk.
91
532
law, death
107. Under the common
358,
1689-1712);
Speke,
The King v.
3 Salk.
except
punishment
petty larce-
for all felonies
(K.B.1689-1712);
Eng. Rep.
91
872
Rex v.
Note,
ny
mayhem.
Due
See
Procedural
2073, 2086,
Royce,
Eng. Rep.
4 Burr.
81
98
Felony,
Sentencing
81
Process at Judicial
for
(K.B.1767)).
(1968).
821 n. 2
Harv. L.Rev.
Barrett,
103,
(citation
supra
104.
at
note
117
Marshall,
Camera,
Lights,
Al-
S.
108. Jonathan
omitted).
Wright,
See also 3 Charles Alan
Contemporary
Di-
locution:
Relevance or
525,
§
Federal Practice and Procedure
at 82
Dream?,
207,
62
L.Rev.
211
rector’s
(1987).
Tul.
(2d
1982) ("The
many
ed.
common law for
recognized
right
defen-
centuries has
of a
'allocution,'
by
dant to
a formal statement
519,
Webb, 242
P.2d
109. State v.
Kan.
748
any legal
why
could
defendant of
reason
875,
Anonymous,
sentenced.”).
(citing
3 Mod.
878
not be
265,
(K.B.1689)
Rep.
Bar-
Eng.
87
175
Barrett,
103,
supra
note
at 120-21.
103,
rett,
121-22).
supra
at
note
301,
States,
106.
U.S.
See Green United
110. Id.
304,
653,
(1961). In
81 S.Ct.
493
pronounced
not
the
should
judgment
jurisdictions
interpreted
Some
have
a
broadly,
allow
right of allocution
him her.122
against
or her own
explain
to
defendant
hand,
jurisdic-
several
the other
On
of the crime
words the circumstances
is no common-
have held
there
tions
her
feelings regarding
his or
his or
her
Moreover,
the
right
to allocution.123
law
A
conduct, culpability,
sentencing.121
juris-
and state
majority of federal courts
strictly to
minority
jurisdictions adheres
of
the
States Con-
dictions hold
United
allocution, in that
right
the common-law
of
right
al-
protect
not
the
to
stitution does
only
the court will ask the accused
wheth-
why
to
locution.124
any legal
er
cause exists
show
355,
State,
867,
172,
876,
(1982) (same);
Cal.Rptr.
P.2d
369
Harvey
248
755
A.2d
878
v.
1074,
(1992)
("Given
(1988)
pos
capital
a
defendant
Wyo.Supr., 835
[that
P.2d
(same).
testify
miti
right
to
and offer other
sesses
need,
evidence],
see
gating
we fail to
Maryland exemplifies
of
121. The State
requirement, for a
much less a constitutional
allocution, seeming-
approach
most liberal
to
'right to
corresponding
address
sentencer
virtually
ly permitting the
to
defendant make
being subject to
without
cross-examination’
subject to
limitless unsworn statements not
Kokoraleis,
cases."); People
capital
v.
132
the events
the crime
cross-examination on
of
202,
235,
233,
N.E.2d
Ill.2d
138 Ill.Dec.
547
State,
77,
v.
Md.
A.2d
itself. Thanos
727,
330
622
(1989) (declining
supervi
its
204
to exercise
(1993) (holding purpose
allocu-
733
"allowing
sory power
recognize
de
to
a rule
provide
opportunity
tion is to
defendant with
hearings
capital sentencing
...
to
fendants in
explain any
presented
to refute or
information
brief,
plea
leniency
unsworn
with
make
State,
sentencing judge);
315
v.
cross-examination”);
Shifflett
being subject
out
382,
814,
(1989) (holding
Md.
554 A.2d
817
503,
Whitfield, Mo.Supr.,
v.
837 S.W.2d
State
improve
reason for allocution is to
truth-find-
(1992) ("Despite
claim to the
514
defendant’s
by considering
process
from
comments
contrary,
right
Missouri
allocution
State,
perspective);
306
defendant’s
Booth v.
addressing
jury.”);
not
does
extend
172,
1098,
(1986),
Md.
A.2d
1111
vacated
507
25,
Perkins,
254, 481
v.
345 N.C.
S.E.2d
State
496,
grounds,
on other
482 U.S.
107 S.Ct.
("[W]e
41
held that a defendant does
have
2529,
(1987) (holding purpose
The federal courts
factual
appeals
split
are
basis for the
and attempt-
on
right
whether the
express-
allocution
ing to persuade
judge
impose
a
32(c)(3)(C)
ly provided
Rule
by
of the Fed-
Thus,
favorable sentence.
the federal rule
eral
right
Rules of Criminal Procedure is a
grants
person
right
the convicted
not
guaranteed by the Due Process Clause of
allowed
right
plead
at common law —the
date,
the Fourteenth Amendment.125 To
for leniency
mitigating
to show
circum-
or
128
the United
Supreme
States
Court has not
stances.”
addressed
squarely the issue
whether
Ohio,
In
v.
Lockett
the Court held that
protects
United States Constitution
Eighth
Fourteenth
Amendments
right
capital
aof
defendant
to make
require
trial
capital
before the
an
that the
court in
unsworn statement
case
is
cross-examination.126
subject
not
precluded
considering,
“not be
from
as a
factor,
any
of a
aspect
defen-
its deep
Because of
in the
roots
common
dant’s
character
record and
of the
law, the
Rules
not
Federal
abolished
of the
circumstances
offense
the de-
right
to allocution.127 “Justifications
fendant proffers as a basis for a sentence
for the federal courts’ continued use of
Lockett,
less than
In
death.”129
the Su-
allocution include assuring
sentencing
preme
court
person
it
Court mandated that
the accused
before
is the one
adjudged guilty,
permitted
providing
opportunity
“any”
an
evidence in
for
sentence,
any disputed mitigation
defendant
contest
a death
including
(1989)
Hall,
394;
(holding
required prior
allocution not
126. See
152 F.3d at
Green v.
Cir.,
French,
865,
(1998),
resentencing
probation
defendant
4th
143 F.3d
879
revo
S„Ct.
denied,
1090,
844,
right
cert.
process
cation
no
525 U.S.
142
because
to due
ex
119
(1999).
States,
);
Prince,
Cir.,
L.Ed.2d
ists
United States v.
5th
698
Hill v. United
868
(no
(1989)
that a
Court held
district court's failure to
F.2d 1379
constitutional
expressly
represented
allocution);
Paz,
ask
a defendant
United States v. De La
5th
Cir.,
counsel
Robbins,
whether he wished to make
state
(1983) (same);
sional implicated, law is and federal deci- “would be marks unfair to the State and sional only pur- law is referred to for the could have the effect misleading of pose guidance.136 of jury.”141. view,
A principal purpose of allocu
This is not our
however.
tion
is to afford
an opportunity
accused
Our
is that
view
there is no blanket rule
to
mercy
ask for
and to
impress
preclude
a defendant who
with
feelings
his or her
of remorse.137 Ac
do so
discussing
wished to
from
or arguing
allocution,
cordingly, during
the accused
already
allocution facts
in evidence ei
may
“acceptable expressions
make
of re
guilt phase
ther
in the
the penalty
or
morse, pleas
leniency,
plans
phase.
Under Superior Court Criminal
138
hopes
32(a)(1)(C)
for the future.”
Some cases hold Rule
11
Del. C.
4209(c)(2),
may
any
§
defendant
not “rebut
also may
defendant
evidence,
facts in
... deny
guilt, or
his
certain cases to
at the
indeed ...
expression
voice an
of remorse
penalty phase
relating
new
to
evidence
139
evidentiary
contradicts
It
facts.”
through
circumstances
the crime
his
has been
statement,
held that the United States Con
own
but that statement of new
way
stitution “in no
mandates reconsidera
subject
evidence must be sworn and
tion by capital
juries,
sentencing
Thus,
cross-examination.
one
if
were to
phase, of their
‘residual
over
doubts’
view in
judge’s
isolation the trial
limitation
guilt,”140
defendant’s
and that permitting a
here that Shelton “cannot discuss
12, 1992,”
defendant
to present
self-serving
such
re
January
events of
11 and
such a
allocution)
Hill,
428,
(citing
sentencing
497 to contri- opportunity express is overbroad and could Shelton the preclusion blanket in if a given leniency. erroneous a case it denied tion and to ask Shelton right defendant who wanted to do so the to that right. not to exercise chose already argue or facts in evidence. discuss to Superior Court refused
But that is not this case. The argue to or discuss permit Shelton (c) Object to Counsel’s Failure to murd surrounding the allocution the facts Limiting Court’s Instruction on Later, stage, postconviction at the er.144 Allocution interpreted its own instruction: the court allocution, case, in he have proper this not could counsel was defi “[e]ven In to failing object ly pointing to to the court’s cient in referred to the trial evidence allocution, limiting on and the instruction not violated his lack of involvement and not error Superior plain Court did commit The trial parameters.”145 the Court’s in allocu limiting in Shelton’s statement not, however, so his over- judge did refine tion. This is not a case the defen where phase. at the It broad limitation he specific proffer dant made of what do is that he did not so. But regrettable on proposed say to about the events point now is about a that is argument Indeed, the crime.142 night of Shelton’s appeal. in shows moot record strategy before this would be incon to to “refer[] did not want Shelton proffer. such a sistent with to his lack of pointing the trial evidence Therefore, the court’s involvement....”146 penalty hearing, Before the the court was statement limitation Shelton, overbroad can informed “You talk about your harmless error. yourself, your background, upbring- education, home, your your ing, folks at placed the court The limitation things like problems, alcohol abuse imper- allocution did not burden Shelton’s topics
that.”143 These were relevant to right missibly to any expression mitigation of remorse or proffer no because there was a death sentence that could have evidence Shelton is, say arguing would proffered. granted That the court what defendant gave of Shelton’s 142.The Court first Shelton the er rule and consider merits State, Del.Supr., argument. limiting See McBride v. instruction after defense counsel (1984) (waiving 184 waiver 477 A.2d raised the issue of allocution. failed Shelton impression in question first object rule and never told the court what he provide Thus, justice interests of order to say would in allocution. under this liti rule, guidance for the trial court future argu Court’s well-settled waiver Wainwright Del.Supr., 504 gants); ably right challenge the trial has waived his 103(d). (1986); D.R.E. A.2d Therefore, 1100 ruling court’s on allocution. See Eustice v. upon although it incumbent was Rupert, 460 Del.Supr., A.2d limiting object in to the court's Shelton to ("Failure object to erroneous statements of he believed it was erroneous struction if the facts the law or inaccurate statements of so, law, do and he failed to statement of waiver.”). fact, ... is evidence of plain to this error rule entitles Shelton object, only failed he not assented appeal. postconviction review on Court’s is, court’s limitation. That Shelton's failure object oversight was the result of (Feb. 1993). 143. Tr. at 93 Rather, neglect. it Shelton’s deliberate severely strategy say to limit what would Zola, (during A.2d at 1045-46 Nevertheless, where the trial allocution. sentencing phase, trial court refused defen- error, object plain a failure to court commits opportunity make statement dant a waiver of the does not constitute waiving not to be a jury without appeal. Del.Super. raise the issue on See himself). against witness 52; State, Del.Supr., R. Probst v. Ct.Crim. (1988). right to A.2d Because the II, Op. at 93. 145. Shelton Mem. right” of arguably is a “substantial allocution defendant, capital allocution and the law of Delaware, ambiguous we the waiv- 146. Id. waive the facts and because such proffer culpability comparison to other defen- have been with his strategy. dants, inconsistent identity, mistaken mistake *31 Accordingly, neither trial appellate nor jury in finding guilt any or other reason. counsel acted unreasonably objective on an That is not the here. case Had he want- review of their representation under the so, ed to do Shelton could have discussed Strickland standard.147 We are faced with in allocution the in in facts evidence the very unusual case where record the re- guilt phase argue in order to he whatever plain veals as glass as that the defendant could avoid penalty. the death The decided, consciously ques- after methodical shows, however, entire record that Shelton tioning by judge the trial and statements not, and part his counsel did as counsel, on their by the record his that he was strategy, considered desire to be- going not review mitigating circum- Thus, fore jury the the already stances.148 it made no facts in evidence difference here that judge phase. the trial the from the guilt response issued over- to the broad limitation on allocution. There trial was court’s statement that “he cannot dis- acquiescence defendant, knowing by the cuss January the events of 11 and ruling directly the was in line with said, the 1992” “[y]our his stand-by counsel defendant’s strategy, and there was Honor, no he that. understands He can’t talk ineffective assistance of counsel. about any factual evidence.”149 Later day, in addressing pro as a se Shelton (d) Prejudice Lack of to Defendant said, defendant, “you the court argue can’t follow, however, It does not that a just about facts .... You the can’t talk judge’s trial setting parameters on allo- murder,” about surrounding the facts the cution similar to this one would not be to which Shelton said he understood.150 a proper reversible error in case where To have about the facts sur- “talk[ed] objection to preserved, the limitation was rounding the would murder” have been plain where there or was error where strategy argu- inconsistent his of not a showing there was of ineffective assis ing the presenting mitigating facts and not tance of counsel resulting prejudice to jury evidence for fear it the would offend view, the defendant. In our and seal fate. his 32(a)(1)(C) Court Criminal Rule and 11 penalty phase record of the shows 4209(c)(2) § Del. provide C. a defendant in lawyer hoped both Shelton his penalty phase the of a capital case the evidence, guilt-phase may the which opportunity to argue allocution from the have to place culpability tended less on already facts guilt phase evidence in the defendants, Shelton than the other would penalty phase those why facts rescue him from should result in the death the death penalty. eyes jury.151 nothing
This is true argument whether the is to of the There is assert responsibility, diminished any reduced record to show that had inten- Shelton 147. 466 U.S. at jury. S.Ct. 2052. to the That talk observation is underscored the lack of indication of said, parameters what if postconvic- he no judge As trial found in the put way, proceeding: tion existed. To it another Steven can- prejudice. not demonstrate actual mercy He he felt could not ask for after the II, Op. (emphasis Shelton Mem. at 92-93 guilty had found him heinous original). finding That is entitled to defer- so, acknowledged, murder. To do he ence. offending promot- would risk greater ing a likelihood of a death sentence 26, 1993). (Feb. Tr. at Steven indicated recommendation. had his trial counsel the Court that this (Feb. 1993). 150. Id. at 93-94 prior approach would be his indicating parameters of allocution. Thus, 6-7; parameters way those in no affected id. 14-16. argue for his life or plead ton did not jury in allocution the arguing tion of murder.159 night to re- of the tragic night facts of that in order facts evidence guilt-phase mind them that proba- cannot show a reasonable oth- culpable less than the showed was that, ineffective alleged but for the bility ers. allocution, the of counsel assistance that he is unable to show phase would have of the penalty result prejudiced by the court’s limitation was rec- This is because been different.160 in argues allocution. He that the court’s to curtail strategy ord is clear that *32 “chilling limiting allocution had a struction he would evidence mitigating the ability express feelings his effect” on to his to protect in order penalty hearing at the his allocute jury the and that to to and for his family, family, his victim’s prejudiced by failure to ob was counsel’s discussing his reasons. own tactical While to instruction.152 ject limiting the court’s himself, represent following request to by persuaded argument. are not this We Shelton and the colloquy occurred between given The reflects that Shelton was record Court: Superior Court dur options three I I that was convicted (1) Shelton: feel silent; phase: remain penalty to that was from the evidence (2) wrongly subject testify broadly to under oath to The against me. evidence cross-examination; presented to allocute and me, to I would like for it right. against parameters within the limited of that jury without mit- presented to and his counsel chose the latter Shelton behalf, my and igating evidence knowingly acquiesced course the guilt— limitation. them come back with have a verdict either death with either produce to no Initially, planned Shelton life in prison. hearing.153 penalty at the Shel- witnesses lawyer killing his that the was so ton told
horrible, nothing jury tell he could enough mercy
would create
to recommend
you
is
that
think that
Why
it
death.154
also told coun-
Court:
life over
Shelton
presenting
evidence
begging
mercy
for
have an
sel that
would
you?
to
ultimately
helpful
on the
will be
adverse effect
likely
they
make it more
that
would
earlier,
As I stated
day
be-
Shelton:
expressed
recommend death.155 Counsel
drag
I don’t want to
yesterday,
fore
court and
to its
this
Shelton attested
anymore.
I
my family through this
Additionally,
did not
accuracy.156
Shelton
have
my family,
and we
have talked
family
family
or Mannon’s
put
want to
his
adult
competent
I
a
agreed
all
that
am
through
testifying
at the
the trauma
doing, and this
I
what I am
and know
altered
hearing.157 Shelton later
penalty
my
is
decision.161
strategy,
produced
three witnesses
his
counsel,
on
the court
addressing
at
hear- Shelton’s
speak
on his behalf
allocution, however,
issue,
Shel-
the same
stated:
ing.158 During
55-56;
(Mar.
at
Tr. at 17-57
Op.
158. See id.
see
Appellant’s
152.
Br.
52.
1993).
6-7;
26, 1993).
(Feb.
153.
Tr. at
See
3, 1993).
(Mar.
See Tr. at 62-63
154. See id. at 14.
id. at 14-15.
See
Strickland,
S.Ct.
my feeling appeal. is that this such his murder, grievous, horrible that there As argument for Shelton’s in this appeal I nothing put could in front of this that the instructions had a “chilling effect” jury that would them make have life, ability on his to plea for his the trial enough mercy give me me life court found that Shelton “had indicated to death, fact, rather than beg- and in trial counsel and the this ging mercy for front approach prior would be his the Court may They adverse effect. indicating parameters of allocution. may because, feel after being Thus, parameters way those in no affected crime, if guilty found of this I fact, come talk the jury.”164 plead mercy, here may strategic had reason to refuse to beg off, turn mercy: them and make them want to doing believed so would give death.162 receiving me impair his chances of life sen- counsel, expressed tence.165 recess, After a Shelton informed the *33 because, jury] may feel that after “[the changed court that he had his mind and crime, being if I guilty found of this come sup- witnesses in in here plead mercy, may and for that turn defense, port of his but that he to wanted off, them and them want to me give make represent himself attorney acting with his death.”166 Thereafter, only as “stand-by counsel.” Indeed, strategy, in with this keeping following the colloquy occurred between in Shelton twice stated allocution that he the Shelton and court: Therefore, not pleading was for his life.167 The If I permit you represent Court: to speaking since the of the mur- about facts yourself and you your choose own on der would have of express- been means present any not to mitigating evi- remorse, not Shelton did wish to dence, you do understand that deci- remorse, express preju- was not Shelton sion, my your decision and decision by diced the on court’s limitation allocu- are that you may ones stuck be with Accordingly, tion. find no we ineffective on appeal, any post-conviction on rem- or error plain assistance of counsel suffi- edy or at other time? cient to overturn sentence Shelton’s Yes, I Shelton: do. death. it,
The say Court: When I you stuck Closing VI. The Remarks Prosecutor’s may not be to you able come back— Regarding Lack of Re- Shelton’s will be may not able to come back or morse not be to say able come back and the prosecutor’s contends that the Shelton Judge shouldn’t allowed me do closing penalty hearing remarks in the re- you that. Do understand? garding Shelton’s lack remorse violated Shelton: Yes.163 against his Fifth Amendment self- Thus, it is clear Shelton, from the record in this According to incrimination. case not prejudiced prosecutor’s on lack of re- comment his the court’s instruction on allocution. his Shel- morse was an indirect statement on Id. 162. Id. at 14. 166. Id. at 75. (Mar. 3, 1993) ("Ladies See at Tr. 62-63 gentlemen jury, you of the I before stand II, Op. (emphasis at Shelton Mem. plead my Again, for life .... I’m not original). life, plead my jury for here but I ask (Feb. 1993). decisions.”). at 14 Tr. be fair in their guilty of these jury jury on has found me testify
failure to and focused the jury’s he turn improper consideration —whether and now it’s allegations, duty express had order remorse that verdict to render a verdict. And argues sentence. Shelton avoid death Again, I’m jail or death. either life commenting his to express failure life, just plead my but not here to against self-in- remorse violated fair in their decisions. ask the integrity crimination and infected say.168 all I have to That’s Furthermore, he process. of the fairness his summation to issue argues that court’s failure hearing, prosecutor said im- prosecutor’s curative instruction on the following: comment was error. proper me, thing judges, Another argument Shelton failed make this you this do and what importance what Therefore, under appeal. trial or on direct has been all is the remorse that means 61(i)(3), Rule Superior Court Criminal in this the words of Jack shown case default procedural must show cause for in allocution and also Steven Outten prejudice. In an at- prove resulting so, you tempt argu- they in allocution. And told to do Shelton couches they ment a claim of ineffective assistance had con- paid lip service victim, The issue arose out of the follow- counsel. but cerns for the families of ing circumstances. their remorse you what did hear about you hear about for them acts? did What *34 Exercising privi- his Fifth Amendment the of the vic- concern for families that silent, not lege to remain Shelton did testi- innocently, tim whose life was taken fy during Dur- guilt phase the of the trial. wrong any he without caused ing penalty phase, the Shelton made to the 169 these individuals? jury following the statement allocution: testify I that since he did not gentlemen jury, argues Ladies and the trial, you prosecutor life. it for the plead my improper stand before not to at remorse, I wrong improper feel that’s and lack be- to on his comment basically disrespectful to the victim’s com- impermissible it was also an cause has family and to mine. The State testify. failure to We dis- ment on his painted picture, picture a and that is not agree. co-
very pretty, pertaining my to me and prohibi The Amendment Fifth I just like to defendants. And would pros bars a against tion self-incrimination a or a jury different side the defen commenting from on ecutor meaning different to Steven Shelton. the to at or testify failure trial dant’s a pictured being has me as The State applicable is phase.170 This rule penalty monster, a being rapist, being as as penalty phases of guilt both the individual, you from violent but as heard does trial.171 A defendant penalty death only not The my family, that’s so. State the by testifying at rights not waive his picture. one the presents side of solely mitigating fac hearing penalty every story. to And There’s two sides the merits wholly collateral to side. tors that are just presents negative the State 1541; Lesko, 3, 1993). v. (Mar. at Estelle 171.See 925 F.2d at 168. Tr. 1866, 462-63, 454, Smith, 101 S.Ct. 451 U.S. 4, 1993). (Mar. 169. Tr. at 12-13 (1981) (discerning no basis 68 359 L.Ed.2d guilt distinguish "between the 609, California, 614- v. 380 U.S. 170. Griffin as the phases capital trial so far of a murder 1229, (1965); 85 S.Ct. L.Ed.2d concerned). Cir., Lehman, Fifth Amendment F.2d 3d Lesko denied, 112 S.Ct. 502 U.S. cert. (1991). L.Ed.2d 226 against charges ject by the him.172 But when a prosecu- cross-examination allocution, penalty hearing, defendant allocutes at the In tor. Shelton stated that he then, “[c]learly, side, he could not claim a Fifth had another one that was not violent privilege against Amendment cross-exami- and included the love from his He family. prosecutorial nation or mat- comment on stated that the State had distorted the credibility ters related his reasonably of the true image by Steven Shelton de- subject monster, matter of It testimony.”173 picting being him as “a ... a has been held that a ... prosecutor rapist, or the and a violent individual.”178 may court jury may advise the that it draw He asked that the be fair in determin- an adverse inference from defendant’s plead sentence refused to mercy silence when the has defendant testified as it “disrespectful” because would be concerning to some facts family crime to his family. and Mannon’s Dur- charged, but has to testify ing closing prosecutor refused as to arguments, re- Thus, other facts within his knowledge.174 sponded by jury’s directing the attention a defendant does not completely waive Shelton’s allocution and indicated Fifth Amendment privilege testifying faded express any remorse for his solely on collateral or mat- preliminary actions.
ters.175
agree
We
In determining whether
Shelton’s comments
allocution
prosecutor improperly commented on the
prosecutor
“open[ed] the door” for the
silent,
defendant’s
remain
the test
comment on his lack
of remorse.179
is “whether the
used
language
was mani
prosecutor’s
upon
not touch
comments did
festly intended or
such
was of
character
Shelton,
charges
nor
against
his failure
naturally
that the
and neces
testify
trial.180 Taken
their con
sarily take
toit
be a comment on the
text,
prosecutor’s
af
remarks followed
failure of the
testify.”176
accused to
ter
statement in allocution. It is
Shelton’s
making
determination,
we must exam
noteworthy
prosecutor
did
*35
ine the
in
trial
comments
their
context.177
guilt phase
make these
at the
of
comments
trial,
testify
Since Shelton did not
oath
under
the
the
where
comments could
during
penalty phase,
the
he was not sub-
his
to
viewed as direct attacks on
Lesko,
Fenton,
See
(citing Bontempo
172.
F.2d
925
at 1541-42.
176. Id. at
v.
3d
1544
Cir.,
954,
(1982));
692 F.2d
959
DeShields v.
(citing
Id. at
173.
1542
Harrison v. United
Del.,
676,
(1993).
Snyder,
F.Supp.
D.
829
684
States,
219, 222,
2008,
392 U.S.
88 S.Ct.
20
(1968);
California,
L.Ed.2d 1047
v.
McGautha
Lesko,
(citing
F.2d at
925
1544
United
217,
183,
1454,
402 U.S.
91 S.Ct.
28 L.Ed.2d
Robinson,
25, 31,
States v.
485 U.S.
108 S.Ct.
(1971)) ("[T]he policies
privilege
711
of the
864,
Ohio,
(1988);
23
99 L.Ed.2d
Lockett v.
against compelled self-incrimination are not
586,
2954,
U.S.
S.Ct.
57
973
438
(1978)).
98
L.Ed.2d
offended when a defendant in a [non-bifurcat-
capital
yields
pressure
case
to testi-
ed]
fy
damaging
punishment
on the issue of
at
of
the risk
guilt.”).
(Mar. 3, 1993).
his case on
Tr. at
178.
62-63
Lesko,
(citing
See
174.
503 remorse was Rather, on the element of prosecutor’s the com- comment silence.181 having fairly can be read as brief and not directly to the statement pertained ments of fundamental fairness in and re- undermined the proffered allocution Shelton Thus, prosecu- the is, hearing.185 the solely penalty flected on his character —that Fifth infringe upon tor not Shelton’s express remorse for his actions. did failure Lehman, by comment- right to silence prose- v. the Amendment Unlike Lesko where in allocu- lack of remorse issues that on Shelton’s cutor commented on collateral during tion. the had not mentioned defendant phase, prosecutor’s com- result, was not defense counsel As a tangential to
ments in this case were not
object
prosecu-
failing
deficient
Be-
what Shelton had said
allocution.
closing
argu-
tor’s
statement
prosecutor’s
comments were
cause
event,
In
has failed
Shelton
ments.186
reasonably
“on
related to
made
matters
that,
alleged
but
counsel’s
prove
subject
credibility or the
matter
[Shelton’s]
error,
hearing
the penalty
the result of
testimony,”
of his
we affirm
trial
argues
been different. Shelton
would have
decision.182
court’s
from counsel’s inef-
prejudice
that “[t]he
left
jury
is that the
was
fectiveness
agree
We
that the natural inference
Shelton was not re-
impression
prosecutor’s
draw from the
victim,
death of the
there-
morseful for the
statement
this case would be
Shel-
that he would
man,
by increasing
probability
unfeeling
ton
an
not that he
We are
testify.183
the death sentence.”187
prosecutor
Because the
receive
failed
conclusory argu-
by
merely
persuaded
on the statements
commented
but
allocution,
prosecutor’s
comment was
re- ment.
made
transcript.
Shel-
prosecuto-
pages
free
lines
27
tained his
“to be
from
few
objection
ton
failed to show how
testify
rial comment about his failure
has
changed the
would have
from counsel
prosecution’s
about
merits
addition,
of death.
jury’s
recommendation
prosecutor’s
case.”184
776,
(1988);
State,
v.
Del.Supr.,
749 P.2d
Henderson
181. But see Jackson v.
(1994)
(statement
Cir.,
about
A.2d
925 F.2d
Dugger, 11th
during closing
(1991)).
defendant's lack of remorse
phase
arguments
guilt
was harmless error
doubt).
beyond a reasonable
argues that defense counsel
186. Shelton also
failing
ineffective assistance
rendered
Lesko,
1542;
see also McNel
F.2d
instruction that the
request
curative
ton v.
111 Nev.
900 P.2d
936-
de-
"may
of remorse from the
not infer lack
Lopez-Alva
(citing
United States
*36
testify”
that the
failure to
and
fendant's
Cir.,
rez,
583,
F.2d
595-96
9th
970
"disregard
prosecutor’s comments
should
(prosecutor may
defense’s failure
comment on
Ap-
lack
remorse.”
evidence,
suggesting Shelton’s
of
long
present exculpatory
to
as
as
pellant's Op.
have
Br. at 69-70. We
stated
phrased
call attention
that comment is not
to
testify));
underlying substantive
to defendant’s failure to
see also
above that Shelton’s
941,
McKellar,
Cir.,
v.
4th
916 F.2d
prosecutorial
Gaskins
miscon-
of
claim on
issue
Mo.,
Delo,
(1990);
Thus,
v.
E.D.
885
951
Six
had
trial counsel
duct is without merit.
1265,
Cir.,
(1995), aff'd,
F.Supp.
8th
1284-85
instruction
request
to
curative
no reason
469,
denied,
(1996), cert.
520
94 F.3d
prosecutor
had not commented
because
1255,
2418,
L.Ed.2d 182
U.S.
117 S.Ct.
138
to
Shelton’s failure
testi-
impermissibly about
(1997); People Davenport, 11 Cal.4th
v.
prosecution’s
fy
case. See
the merits of the
Cal.Rptr.2d
906 P.2d
1097
47
Lesko,
1543. Shelton is unable
925 F.2d at
(1995).
prove
was deficient because
that counsel
require
does not
counsel
Sixth Amendment
936-37; Lesko,
McNelton,
During Penalty ly evidence, Phase mitigating or even mitigat- all ing evidence uncovered.192 That wit- other Shelton contends counsel rendered available, alone, might nesses have been is ineffective assistance the penalty- to prove insufficient ineffective assistance phase by failing adequately to prepare of counsel.193 This “specu- Court will not investigate and mitigating evidence. He late on what testimony these wit- other argues that counsel failed to investigate nesses might presented.”194 “Coun- family evidence of history, his social back- can make choices” reasonable and focus sel ground, psychiatric condition. Ac- investigation or her on what might best Shelton, cording to had thorough- counsel impose convince a not to death ly prepared and investigated, counsel penalty.195 would have discovered useful mitigating evidence that supported would have a life standard, light In of our we con sentence instead of death. clude that Shelton’s claims are without case,
“In ineffectiveness investigate merit. Defense counsel did particular investigate decision not to evidence, must prepare mitigating inter directly for assessed reasonableness viewing intending family Shelton’s circumstances, all the applying a heavy family history.196 evidence of his measure deference to judg counsel’s But early from on in the phase, ments.” In evaluating Shelton’s claim Shelton made a deci strategic deliberate counsel, ineffective assistance of we sion limit mitigating evidence that must take care “to eliminate the distort he now present. Shelton cannot ing effects of hindsight, to reconstruct claim unreasonably counsel acted when challenged circumstances counsel’s clearly proscribed had the param conduct, and to evaluate the conduct from eters of his defense.197 perspective counsel’s at the time.”189 In
making determination, this recognize we (a) Alleged Counsel’s Failure that “counsel presumed have ren Investigate Adequately adequate dered assistance” and that Mitigating Evidence. has “duty counsel exercised the to make argues postconviction in- that a investigations reasonable make a vestigation of past revealed “substan- particular reasonable decision makes tial potential factors which trial mitigating investigations unnecessary.”190 counsel was unaware of due to his failure a general
Defense counsel has
to adequately
prepare.”198
support
duty
“investigate potentially
claim,
provides
psychiatric reports,
counsel,
evidence
use at the penalty stage.”191 opinions
com-
from outside
and a
duty
This
does not demand that
prehensive psychosocial
investigation
counsel
pursue “all
investigation,”
lines of
nor
performance,
does his background, school
Strickland,
prior criminal He contends court, Shelton, in- did among limited his counsel the improperly defense counsel family his mind and counsel vestigation change to discussions with his allow Shelton members, provide “stand-by to ill-equipped who were as representation to continue result, mitigating day preceding sufficient evidence. As the the counsel.” On make a his argues, again changed he was unable to Shelton Shelton penalty hearing, presentation on the trial con- strategic requested decision that counsel mind and because coun- counsel mitigating evidence defense that representation, provided tinue 204 Nevertheless, investi- sel failed conduct reasonable his wishes.” Shelton “do gation pertinent of such factors. ultimately it clear he controlled made penalty the scope during the of his defense outset, in this At the we find no merit hearing. de- it was Shelton who argument because mitigat- explore manded that counsel not 1993, February after On In hearing. ing penalty evidence for its fired trial rendered verdict Shelton fact, if it his way, Shelton had he counsel, following colloquy occurred: nor have had neither the benefit of counsel Willard, independent The Court: Mr. any mitigating opportunity present with your client’s wishes connection hearing. penalty evidence Con- evi- present mitigating whether it trary argument, to his is trial counsel present mitigating dence credit court whom Shelton should evidence, investiga- done you any mitigating him convincing present regarding presenting tion are struck place. evidence the first We witnesses? by the blames irony Shelton now have, Yes, I Your Honor. Mr. Willard: paucity mitigating counsel for evi- explored presented. dence Court; me you describe for Can you’ve done? In what reviewing post- Shelton’s motion for relief, con- Superior conviction Court Well, Honor, just I’ve Your Mr. Willard: analysis 56-page ducted exhaustive three and a half hours spent last that trial rendered Shelton’s claim counsel his his mother and family, preparing ineffective assistance my plan. They original were sister. phase.200 As origi- I They are two witnesses that noted, the trial record is with testi- replete nally to call in his behalf. intended mony made a delib- showing Shelton they going were The Court: What the miti- strategic erate decision limit say? at the gating evidence he would Honor, go- they were Mr. Your Willard: penalty hearing.201 We have reviewed life, kind of what talk about in it. analysis and do not find error was, upbringing kind of kid what addition, immediately after the life, had, in his he’s all the difficulties February verdict on guilty rendered its family... what kind of a to ter- expressed his desire I sorry. have to make sought to The Court: I’m minate assistance and counsel’s Only February record. represent himself.202 (Feb. 1993). (16) (21) Tr. at & III of 199. See items Parts II — Appendix. Defendant’s 26, 1993). (Feb. at 88 203. Tr. II, Op. 200. See Shelton Mem. at 97-151. (Mar. 1, 1993). 99-115; (Feb. instruct- at 2 204. Tr. See id. at Tr. at 11-56 *38 6-28, 41-42, 26, 1993); (Feb. perhaps wit- call one Tr. ed that would counsel 1, (Mar. 1993); 1993); closing argument. Tr. at 58- give Tr. at 2-23 id. See ness 3, (Mar. 1993). Shelton: It’s none of your business what in all likelihood the nieces
my family say my has to behalf. would be called.205 The Court: I have to make a record. continued, As the colloquy counsel and
Numerous court opinions have made the court'discussed investigation counsel’s that quite clear. they What would and plans for mitigating witnesses. Coun- gone have into Steven’s [to trial coun- sel made it clear to the court that Shelton sel]? instructed him “not to talk to his mother and not to talk to his sister.” Counsel Honor, Mr. Willard: childhood, Your also informed the court that Shelton life, his upbringing, his their relation- “wants to remove himself from those peo- ship with him. ple. He does not wish to have them be The Court: Based your discussion put in here and put through this. them, with were there other wit- wishes, That’s his sincere and honest Your nesses or areas you might Honor.” court told the that he wanted to explore such as schooling or understood that the failure to present miti- things like that? gating evidence could increase the chances Mr. that, Willard: Nothing like Your of a death sentence.208 Honor, no. There would abe real Despite Shelton’s present desire to no strong if possibility that I my had evidence, mitigating day the next counsel way, if my client would have so al- provided the setting State with a letter me, lowed I would be calling also his circumstances, forth 43 mitigating as re nieces. 4209(c).209 quired by § 11 Del. C. On Feb The Court: For what purpose? ruary 1993, the court discussed the contents of the letter with Shelton. Shel Mr. Willard: And perhaps his step- ton told the court he had reviewed the reason, brother for the same Your letter and that Honor, he understood that family show the relation- evidence, presenting mitigating none of the ship, their love for him. issues in presented the letter would be available; they Court: Are all moth- jury.210 er, sister, step-brother? nieces and The February 1993 letter further Honor, Mr. Willard: Your his sister who convinces us that defense counsel thor- in [the] courtroom until oughly prepared penalty hearing. for the half Honor, an hour ago, Your when The letter sets forth an extensive list of broke, we finally she advises me that factors mitigate that could be used to she has discussed the possibility of sentence, death but Shelton’s insistence her children testifying her hus- that he control limit band and that he tentatively has evidence presented on his behalf. agreed to I that. didn’t discuss with day I, them a possibly 1, 1993, because quite On March day frankly, don’t know my when time healing begin, was to defense exactly. They come would have counsel informed the court that Shelton to make arrangements for schooling had changed his mind and that he wanted forth, my so but it’s understand- counsel to continue to him represent (Feb. 1993). Tr. at 11-14 February Letter dated 1993. Shelton II, Op. Mem. at n. 16. 206. See id. at 15-16. (Feb. 26, 1993). 210. See Tr. at 81 207. See id. at 16. 25-26; (Feb.
208. See id. at Tr. at 69 1993). *39 Yes, hearing.211 the I do. through penalty Neverthe- Shelton: less, the instruct Shelton retained you that The And do understand Court: which he call counsel on witnesses be a sentence? harm could death questions which to ask and not to and I understand that.213 Shelton: penalty hearing ask.212 Before the com- on ultimately testified Three witnesses menced, colloquy the following occurred: half-brother, older Shelton’s behalf: his [Trial The has counsel] Court: indicated half-sister, Edward, a half- Dorothy, and forty- there are some matters of the sister, Combined, they described Louise. potential he three listed in his letter and very physical dysfunctional family, here, miti- mitigating circumstances father, the father’s mental abuse factors, gating you that do not want accident, father’s severe industrial jury. some of to the presented them alcoholism, long-standing many and other Is that correct? testimony family There problems. was That’s correct. Shelton: school, difficulty about trouble Shelton’s The would like him to you Court: And racial coping neighborhood, in a mixed stay in this as our attorney, case the wit- many fights. According his you, have him but represent on nesses, father the reason Shelton’s you condition that be able to decide to early began drinking very present certain of those matters but age. present to not other matters. that Is correct? posi- also These witnesses described Namely, they Only That I tive side to life. Shelton: is correct. Shelton’s what early child- happy testified as to Shelton’s bring up basically instruct him to is all pleasant family experi- I him I hood bring that would want out. and several counselj’s described in 1991 Shel- understand ences. Louise how position [trial her and children and against the I re- ton had visited her penalty, death decision, favorably respects they responded that he how had spect my as decision, de- I’m affection he showed them. Louise doing and I feel that not nothing repairs in his belief scribed he did her older sister. unethical as far as They lived representation his of me. commented how Shelton helped mother and her with How, The you Court: if retain the bills. any, some or shall we say, of the forty-three items he’s listed that We with the agree letter, okay, you in the do understand assistance of Shelton’s claim ineffective you you that may may be or are — strate- counsel without merit. Shelton’s you are keeping from months, sig- gy, planned he had which me potential mitigating from certain coun- limited the of trial nificantly scope factors? investigation during penalty sel’s I completely. Shelton: understand it trial hearing. Ironically, appears that only that Shelton
counsel was reason presented the evidence Therefore, given strategy, Shel- you did. Court: And do understand argue no basis to ineffective could ton now has weighing process, counsel you jury’s harm of the deci- assistance of terms my phase.214 sion and decision? Amos, 1, 1993). (rejecting post- (Mar. F.3d at 214.See
211. See Tr. at 2-3 assistance claim for ineffective conviction at 4. 212. See id. wit- that no where defendant insisted counsel penalty hearing). testify at nesses Id. at 19-22. *40 Accordingly, persuaded we are not still question- restricted witnesses and the reports and that ing. records Shelton now post-conviction appeal.215
offers on While Thus, this" Court is not prepared to they contain substantial information that say trial actions counsel’s were the re- might have been useful in preparing for sult of a diligence. lack of due Clearly, the penalty phase, record is clear that significantly Steven limited trial coun- desire, allow, Shelton did nor not counsel ability present sel’s witnesses and the to pursue those avenues. The approach penalty to be taken Court correctly summarized the situation hearing. originally Steven had decided as follows: months before the trial that if he were significant placed
Steven limitations found guilty, present he did not want to on trial counsel on what he wanted pre- any mitigating evidence. He told trial this, sented. At he going first was not vigorously counsel disagreed who present any mitigating evidence. As with Only just Steven’s approach. be- shows, record decision was not hearing began rash. fore penalty did Ste- thought He had about it for months. ven only slightly. relent but so then He convicted, Steven that if had decided position he is not and be in a should not any evidence, present not argue now counsel should trial have “beg mercy” and take his chances done more.216 with and the Court. prove Shelton has trial failed Steven had communicated this deci- unreasonably counsel in investigat- acted sion to trial counsel months before the penalty phase. preparing for guilty verdict. Trial counsel strongly Therefore, we not consider how coun- need it, disagreed part, because of his alleged sel’s ineffective assistance would personal opposition the death penalty. prejudiced Shelton.217 Steven knew this. (b) Ineffective of Counsel in words,
In other Assistance while it has been ar- Psychiatric Failing counsel, Secure gued that profes- trial out of Witnesses prudence, sional should have prepared for the penalty hearing before trial (guilt argument Shelton related makes the phase), long it is undisputed before that trial counsel rendered ineffective as- the trial had hamstrung Steven trial psychiatric sistance in fading to secure wit- counsel’s approach penalty hear- a psychiatric report. nesses and to conduct ing. He did not even want his family to claim, In support provides of his Shelton testify. reports psychiatric Court with two
‡ >;< ‡ M.D., Janofsy, from Jeffrey ¡\i David ^ % Schretlen, Ph.D. placed Steven clear limitations on trial counsel, but disagreeing while with his Shelton that counsel acted prove must limitations, objectively unreasonably failing the Court was more than to order satisfied psychiatric Steven knew what he was do- and that evaluations ing. The Court also suffered find on resulting prejudice. was satisfied that We appreciated Steven the increased risk this record that counsel acted in a trial proceeding created in as he manner in professionally failing had told reasonable counsel expert he wished. Even after he re- to call witnesses and psychiatric lented report. and allowed counsel to conduct a Further- psychiatric remain members, more, put family on several we find that Shelton suffered no Flamer, (16) (21) items Parts II & of 217.See at 747-48. III 585 A.2d — Appendix. Defendant's II, Op. 216. Shelton Mem. at 111-113. Defense counsel alleged as a result of decision months.
prejudice counsel’s deficiency. able ready, willing mitigated favor of compelling case in is anal- argues situation hearing last- Shelton’s sentence. ogous to that in the case of State *41 time, days. During that as well ed five Court, Wright, Superior in after which trial, rationally at the behaved as Shelton viewing totality of circumstances instructed the court intelligently and and surrounding legal representation at the his deci- penalty phase, purposes ruled that the “almost com- that he was sane for of investigation Wright’s lack into plete of once sionmaking.223 Never did Shelton mental, school, family history ... in and or the court that indicate to counsel in lack strategy addition of [counsel’s] desired, a permit, psychiatric or would presenting mitigation pen- evidence in the Thus, aware of evaluation. Shelton’s alty phase,” constituted ineffective assis- duty had strategy, defense counsel no In tance of counsel.218 the court Wright, psychiatric pre- evaluations or to order had ineffective held counsel rendered for psychiatric penalty witnesses pare assistance because counsel’s summation hearing.224 easily plea a interpreted sympa- was as thy and lasted less than five minutes.219 counsel We hold that behaved Moreover, counsel’s summation contained in not objectively an reasonable manner only hardship a brief to Wright’s reference securing expert psychiatric an witnesses hearing youth penalty as a and the entire obtaining psychiatric evalua and not less lasted than one hour.220 The defense hearing. Accordingly, penalty tion for the witnesses, presented two the defendant’s counsel’s we need consider whether counsel, mother and girlfriend.221 Defense prejud caused Shelton alleged deficiency summation, plea in a brief made Nevertheless, psychiatric re ice.225 mercy, and referred to the defendant’s do not consti proffered by Shelton ports mother,” having been to “an born unwed that, but proof conclusive for defense tute school, poverty, failing his his and his error, alleged of counsel’s result by drugs introduction to older children been proceeding would have different. neighborhood.222 sign reports cognitive indicate no distinguish
Shelton’s situation is is of impairment. show They it able. Shelton made clear to counsel mental average intelligence low whose and and the court that he would control IQ. Ac- with abilities are consistent his limit the evidence that would Schretlen, Dr. cording to individuals presented be on his behalf. He informed “frequently are careless profile the trial court that he had his deliberated Shelton’s reasonable) (1994). senting psychiatric reports Del.Super., A.2d 653 303 Riley Del.Supr., (citing 585 A.2d (1990) (holding it is "within defense See id. at 301. forego an professional judgment to counsel’s health investigation defendant’s mental into 220. See id. at 297. mitigation,” purposes when coun- for the oc- on numerous sel had met with defendant 221. See id. believing de- prepared for trial casions and impairment, and mental fendant suffered no Id. "strategic reminding made that the choices investigation complete are rea- less after sonably precise than 24, 1993). (Feb. 223. Tr. at 39 reasonable to the extent that support judgments the limita- professional Strickland, Outten, (holding at de- (citing 720 A.2d investigation”) tions on strategy 690-91, 2052)). fendant was aware counsel’s at 104 S.Ct. 466 U.S. negative provide no behavior evidence Flamer, pre- A.2d at 747-48. phase 225.See that decision to avoid addition, irresponsible.” Shel- conducting evidentiary hearing. Ac- “impulsivity, antagonism ton’s Shelton, and irre- cording to “all issues raised sponsibility” may personality be traits require the defendant fact-finding hear- stemming from his childhood.227 Both Dr. ing.”230 appears arguing Janofsky Schretlen and Dr. noted that postconviction that a evidentiary hearing parents Shelton’s were alcoholics and that required should be in all capital cases. physically father abused his mother We review siblings. Dr. Janofsky recounted postconviction Court’s denial of relief for school, difficulty juvenile Shelton’s Questions abuse of discretion.231 of law history, adult criminal and his sub- are postconviction reviewed de novo.232Ina Janofsky’s stance abuse. Dr. examination *42 proceeding, the decision whether to hold of Shelton revealed no intent plan or of an evidentiary hearing is a determination others; suicide or signs threats to no of by made the trial court.233 As we stated in hallucinations; thought no disorder or de- Outten, “While the decision to hold an lusions; obsessions, and no compulsions or evidentiary hearing postconviction in a phobias.228 Dr. Janofsky concluded that proceeding is within discretion of the there was no major evidence of a mental Court, cases, Superior in capital holding illness and that Shelton had been raised such an evidentiary hearing should be the a severely abusive environment.229 234 norm, If, however, exception.” not the Neither Dr. Schretlen Janofsky nor Dr. it appears postconvic from the motion for discovered mental illness or disease. prior proceed tion relief and the record of expected, As psychiatrists opined both that ings the case that the movant is not Shelton suffered from per- behavioral and relief, entitled to then summary disposition sonality problems anger, such as irritabili- of the motion is appropriate.235 Given the ty, carelessness, irresponsibility, conformi- judge’s familiarity trial extensive ty, Nevertheless, etc. value case, background of we are unable to diagnoses such is if slight, any. Accord- conclude that he abused his discretion in ingly, requisite Shelton has not shown the determining evidentiary that an hearing prejudice under Strickland as to defense was not necessary. expert counsel’s failure to secure psychiat- psychiatric ric witnesses or evaluations. IX. Conclusion VII. Dismissal of Shelton’s Motion for The Superior carefully considered Postconviction Relief without allegations, treating Shelton’s such claim Conducting Evidentiary Hear- with the gravity capi- that it deserved tal case. extraordinarily its detailed 22, 1997,
Shelton contends
the Superior
187-page Opinion of December
Court abused its discretion in dismissing
correctly
the Court
determined that each
his motion
postconviction
relief without
of Shelton’s
procedurally
claims was either
Schretlen, Ph.D.,
Outten,
Rpt.
(Apr.
of David
at 4
232. See
rebut
a defendant
statements made
II.
during allocution.241
speak
at the
is an
right
The
allocution
The limitation
imposed by
on allocution
ancient fundamental common law
majority
presents
practical
also
severe
recognized
which
been
in
has
Delaware
problems.
majority permits
While the
par-
elsewhere
centuries.242 It has
argue
already
defendant to
“from facts
sec-
ticularly serious ramifications
in evidence” that the
made mistake
of a
phase
degree
ond
first
murder trial
finding
guilty,
him
if
did
the defendant
where
issue is the life
the sole
or death
testify he
very
must choose his words
majority’s
We find the
defendant.243
carefully.
appear
permissi-
It would
the order in
State
citation of
DeShields v.
say,
ble for
the defendant
“You
unpersuasive.244
holding DeShields
guilty”
imper-
shouldn’t have found me
but
to whether
could
limited
the defendant
“I
say,
missible
the defendant
didn’t
anything
waive his
to allocution and
it” or “I
do
didn’t mean to
it.” It is
do
Order is
else
dicta.245 DeShields
attorneys,
sometimes difficult for
trained
United
non-
cited Hill v.
States that was a
law,
precisely
argu-
limit their
capital
and was
fail-
case
limited to “[t]he
*44
subjects
permitted
ments to those
that are
court
ure of a trial
to ask a defendant
court. A
a limited
defendant with
represented by
attorney
he
whether
education, facing
say
the death
penalty,
anything
before sentence
[had]
Barrow,
("It
(1963)
right
See
Del.Super.,
sentencing]
239.
State v.
1998 WL
224
is [at
that the
Zebroski,
(1998);
Del.Super.,
opportunity
733212
State v.
to be
of the defendant
afforded an
(1997);
Ferguson,
judge
WL
v.
1997
528287
State
to make a statement to the
in
own
Del.Super.,
importance.
right,
1995 WL
most
an-
413269.
behalf is of
This
law,
32(a)
recognized by
cient in the
is
Rule
Rules,
requires
point
capital
of the Federal Criminal
which
We
240.
out the result in other
opportu-
the court to 'afford the defendant an
cases
demonstrate that an unrestricted al-
nity
a
to make
statement in his own behalf
integrity
will not
of
locution
undermine the
any
mitigation
present
and to
information in
trial. The
fact that other defendants have
”);
State, Del.Supr.,
punishment.'
Hooks v.
been unable to
the death
does
avoid
1312,
Barrett,
(1981);
429 A.2d
1313
Paul W.
mean
that Shelton should not have been
Allocution,
(1944);
9 Mo. L.Rev. 115
given
opportunity.
the same
opin-
cited in footnotes 103-106 of
cases
this
32(a).
Dawson,
167,
adopted
ion.
has also
Delaware
Rule
503
112 S.Ct.
U.S. at
(“But just
[capital]
1093
as the
defendant has
State,
1374;
v.
643 A.2d at
any
See Jackson
to introduce
of relevant
sort
604-05,
Ohio,
586,
438
98
Lockett v.
U.S.
support
evidence
of a sentence
[in
2954,
(1978) ("The
death],
57
no-
S.Ct.
L.Ed.2d 973
less than
the State
entitled to rebut
is
own.”) (cita-
navailability
modifying
of corrective or
mech-
proof
that evidence with
of its
omitted).
respect
capital
anisms with
an executed
tions
sentence underscores the need for individual-
301,
require-
ized
as a
States,
consideration
constitutional
242. See Green v.
365 U.S.
United
sentence.”).
imposing
304,
the death
(1961);
ment in
81 S.Ct.
L.Ed.2d 670
Ball
5
States,
118, 129-30,
v. United
140 U.S.
11
State,
Del.Supr.,
A.2d
(1891);
v.
633
DeShields
35 L.Ed.
Schwab v.
S.Ct.
377
(1993) (ORDER).
446-47,
369
Berggren,
143 U.S.
S.Ct.
Behrens,
(1892);
L.Ed. 218
United States
162, 165,
U.S.
11 L.Ed.2d
84 S.Ct.
Id.
a
for
sen-
Furthermore,
improper
it not
in
We think
imposed.”
[was]
the bench
tencing judge to mount
found:
Hooks v.
Court
notion about
preconceived
some
sentencing pro-
governing
The norms
but we
imposed,
to be
proper sentence
(1)
thus,
a
well
ceedings are
settled:
for him at
improper
it quite
think
present
to be
has a
defendant
upon
mind
to have closed his
point
(2)
sentence;
he
of final
imposition
case, due
is the
subject.
such
When
time;
right to counsel at
has a
must
the sentence
lacking
is
process
to address a
Judge
required
the Trial
the cause remanded
struck and
be
at that time and to
personally
defendant
proper
in the
imposition
of sentence
him if he wishes to make
state-
ask
fashion.248
in his own behalf
ment
and/or
punish-
mitigation
information
Despite
provisions
norms,
derived
ment. Those
whether
32(a)(1),249
court
the trial
Rule
Criminal
constitutionally
from the common law
allocution,
here,
stated
Shel-
prior to the
based,
practice
are followed
our
he’s
get
“He can’t
into—if
ton’s counsel:
in Superior
are codified
Court Criminal
allocution,
cannot discuss
speaking
32(a).
have no doubt
Rules 43 and
We
12, 1992.”250
January 11 and
the events of
is a criti-
imposition
that the
of sentence
court,
addressing
Shel-
Later the trial
and, for that
proceeding
cal
in the
stage
se,
ton,
pro
then
stated:
who was
reason,
are
both defendant and counsel
you
argue
want
can’t
you
Whether
to—
required
present.247
to be
You can talk about
about the facts.
that,
recognized
has
because
This Court
up-
background, your
yourself, your
sentencing
importance
of the critical
education,
folks at
your
bringing, your
(even
case),
it would vio-
non-capital
home,
problems,
abuse
any alcohol
a trial
process
late constitutional due
all
You can talk about
things like that.
appropriate
sentence to
court to decide
You
you
as much as
want.
things
those
all
judge hearing
without the
imposed
about the
surround-
just can’t talk
facts
mitigating information:
understand
you
Do
ing the murder.
judge’s
trial
closed
[The
mind]
that?251
intent,
purpose
spirit
violation of the
began
Finally, right before Shelton
*45
32(a)
requires,
Rule
which
of Criminal
allocution,
again reminded
the trial court
fi-
by necessary implication, that before
him:
sentence,
nally reaching a decision as to
ground
the basic
understand
You do
mind
sentencing judge
open
have
here,
own be-
speaking
your
rules
receiving
the extent of
all
at least to
half?
bearing
question
on the
of
information
manner,
States,
are, in
in that
speaking
You
mitigation. Cf.
v. United
Green
can be cross-
you
in a
where
position
5 L.Ed.2d
365 U.S.
S.Ct.
examined,
you
get
can’t
into
so
facts
424, 428,
States,
if the defen-
personally and determine
dant
U.S.
246. Hill v. United
(1962)
(emphasis
a statement and
continue to represent himself at the pen-
III.
alty phase hearing.
Secondly, he’s
asked
I
call and have available to
We do not understand how Shelton can
him those certain
that I
witnesses
had
in,
be deemed to
acquiesced
mentioned to him
who
be avail-
from,
therefore
prejudice
suffered no
possible testimony
able for
to mitiga-
as
erroneous allocution
repeated-
instructions
tion. He will decide which of those he
ly given to him
attorney.
and his
call,
them,
will
if
when his turn
clearly
record
demonstrates that Shelton
comes, and that will be determined on
upset
confused and
guilty
after the
what goes before him.
death,
verdict. Facing
he three times
Secondly,
my
he asked that in
position
changed his position on how he wanted to
him,
I
assisting
give
be able to
First,
handle
penalty phase.
closing argument
argue
to the
told the court he
represent
wanted to
him-
my position
against
penal-
the death
self
attorney
because his
opposes the
on—
ty because he feels that I can do that
penalty:
death
reserves,
better than he could. And he
Well, I
did
little research on a few
Honor,
your
particularly
most
and first
you put
cases that
in front of the Court
importantly
and most
to allocu-
put
or
out there. And it
states
State
tion. He has indicated to me that he’s
be,
versus Deere that it would
for the
prepared to
take the stand
make a
defense counsel to keep representing
jury,
statement
without
me, it would be an ethical conflict my
witnesses,
having called
and that he un-
wishes, meaning
my
attorney op-
derstands that he has a
to allocu-
poses the death penalty, and if it’s im-
*46
tion without cross-examination.256
posed or since we’re going through, my
it,
attorney opposes
jury
recess,
and if the
Following a weekend
Shelton
comes back with the death penalty, you changed plans for a third time. He recon-
(Mar. 3, 1993)
case,
252. Tr. at
(emphasis
capital
add-
but the rarest kind of
not be
ed).
precluded
considering
mitigating
from
as a
factor, any aspect of a defendant’s character
or record and
the
circumstances
the
253. See Thanos v.
330 Md.
622 A.2d
proffers
that the
a
(1993)
defendant
as basis
and cases cited in footnotes
offense
for
death.”) (footnotes
sentence less than
opinion.
113-121 of this
omitted)
added).
(emphasis
Ohio,
586, 604-05,
254. Lockett v.
438 U.S.
(Feb.
1993).
255. Tr.
at 4-5
(1978) ("[W]e
S.Ct.
ing. I wrongly was convicted from the
We, therefore, respectfully DISSENT. evidence that presented against me. me, against
The evidence I would like for presented it to be jury any APPENDIX A without behalf, mitigating evidence in my and have Pages Selected Portions from guilt them come back with the ei- —with Transcript Penalty Phase Proceed- ther a verdict death prison. either or life in ings THE COURT: Excuse me for one mo- February 26, 1993 you saying you— ment. What are is that Herlihy, Jerome O. J. you saying you are would like to take your put it in chances with this —I’ll Shelton, THE COURT: Mr. Steven me if I just other words and let see under- .... Is it your represent still desire to your thoughts stand what are. If I’m yourself penalty in the phase and not have wrong, wrong. you saying tell I’m Are me your Mr. attorney penal- Willard you your like to take chances ty phase? they’ve jury, with this first al- because STEVEN Yes. SHELTON: ready far heard all the evidence as as guilt phase THE slightly COURT: You hesitated —correct? answering yes.... you before Can well me True. STEVEN SHELTON:
why? THE COURT: —and there will be no Well, I STEVEN SHELTON: did a lit- regarding other evidence that most re- tle you put research on few cases that in spects, you want to have them make front put of the Court or out there. And it up their minds their recommen- and make states State versus Deere that it would me, also, you dations to want me to be, keep represent- for defense counsel to up my make in effect on the mind based me, it would be an ethical conflict to of the tri- guilt phase evidence wishes, my that an meaning attorney op- al? Is that correct? poses penalty, the death and if imposed it’s That is correct. STEVEN SHELTON: going through, my or since we’re attorney it, opposes and if the comes back with you think Why THE is it that COURT: know, just the death I penalty, you feel that not evidence presenting represent that it’s unethical for him to me helpful you? will be I am facing since the death now. I STEVEN SHELTON: As stated ear- my That’s I opinion, and that’s how feel.1 lier, I don’t day yesterday, before want % íjí ‡ v v ísí anymore. drag my family through THE are not asking COURT: You family, I have have all my talked to and we penalty, the death correct? agreed that I am a adult and I competent my what I am and this is doing, know No, I’m STEVEN SHELTON: not. decision.2 again why you THE COURT: Tell me think, you not asking since are think penalty, why you you your
death Mr. Willard THE COURT: Do think that anything your step should do behalf and decision to ask Mr. Willard to aside or represent you, you step pres- should not as best can me have him aside and also not words, your your own and take time. ent evidence— (Feb. 1993). (Feb. 1993). 1. Tr. at 4-5 2. Tr. at 6-7 *48 many, of over things spoke that we Mitigating evi- me the STEVEN SHELTON: his child- my in office about many hours dence? kind of upbringing his and the hood and evidence, Mitigating THE evi- COURT: in mitigating I would be things that believe you get to a life sentence. help dence to me the They expressed his behalf. have Right.3 STEVEN SHELTON: not honor they would thought perhaps that voluntarily, in and my wishes and come they they subpoenaed, per- if were that I I feel that STEVEN SHELTON: because haps disregard subpoena a in bring any mitigating shouldn’t evidence obligation is to they feel that their first decision, my my That’s and I’m behalf. respect his wishes.6 Steve and it. going to stand with your THE Other than concern COURT: Now, Honor, .... point: one other your your family, why? for my feeling one is point, said to me at Steve just my That’s STEVEN SHELTON: horrible grievous, this was such a decision, far as I’m personal and that’s as murder, I nothing put that there is could with that.4 going go that would make them in front of this me life enough mercy give
have on be to death, fact, begging for rather than and Willard, THE Mr. [To COURT: Steven mercy jury may in front of this have you I understand that counsel]. Shelton’s They may feel that be- adverse effect. feel, light expressed of Mr. Shelton’s cause, being guilty after found you represent wishes not to have him and crime, plead I for if come here on, put anything you not to now feel an off, may turn them and make mercy, that obligation go along ethical with his They may me death. give them want to wishes? a man if I plead think less of me as mercy. Correct, Honor, your MR. WILLARD:
so we’re clear on that. matter, strategic there is So as better off potential that he would be Now, Honor, your you asked Mr. Shel- saying getting a life sentence I family ton about his their wishes. I will not jury, nothing say. I have mother, spoken have with his or three two put circum- ask—I will not sisters, extensively, his and all of them stances, you your I allow to make and will have me it their heart stated to tears put has on the evidence the State decision what happen to understand could Steve forward, and that because—that and that he get could death sentence. say, may very well look at that and here However, they absolutely respect guilty found and is a man who has been wishes, it they’re agreement with re- mercy, and we going plead they to me that it expressed because him for that. spect is, all, after life.5 may very well find that they And then some evidence it—at least there’s because meeting my I have advised them on first was not a real that would indicate that he possibility your it is a Honor we tried to player in this that principal me as an officer of this Court could order anything, that if develop, evidence, that I in a small present mitigating initially involved maybe two, amount, much the other but not as as would therefore call them to discuss 26, 1993). (Feb. (Feb. 1993). Tr. at 11-12 3. Tr. at 10 26, 1993). (Feb. (Feb. 1993). 6. Tr. at 13 4. Tr. at 10-11 *49 that I can do that better they may very say, that well because of his cause he feels reserves, your somewhat lesser than then he could. And he being involvement Honor, others, first and plead particularly didn’t most and and because he importantly him that and most to allocution. mercy, respect we will prepared he’s him the He has indicated to me that give a life sentence instead of make a statement to death sentence. That was the discussion to take the stand and hope having I I I’m not called jury, that Steve and have had. with or without witnesses, me to saying something he doesn’t want that he understands that he and say you because asked him that without cross ex- when has a to allocution question, respond way. he didn’t amination. Well, THE if he takes the COURT: pretty That’s
STEVEN SHELTON: stand, in allocution as speaking he’s not close.7 separate matter dur- such. That will be a ‡ :(cid:127)« H: Hi Hi % talk about the events ing which he cannot pretty STEVEN SHELTON: That was 11,12,1992. January I recall of the close. don’t the total me, your MR. Excuse Hon- WILLARD: conversation, pretty exact but that’s close or. to our discussion. get can’t into—if he’s THE He COURT: to talk to you THE COURT: Do want allocution, cannot discuss speaking he your current any Mr. Willard more about January 11 and 1992.9 the events of thinking represent yourself present Hi Hi H* Hi H< Hi I’ll no evidence whatsoever? Honor, he un- give you opportunity, you if would like MR. Your WILLARD: any about it. that. He can’t talk derstands with Mr. Willard.8 your what, would. would like to further discuss My which of those that I call and have available to ty testimony continue to when his turn him who certain witnesses determined on what MR. WILLARD: STEVEN SHELTON: Yes. phase client’s Hi I hearing. Secondly, he’s asked as to represent i[i Honor. position he will mitigation. comes, and that will be be available for that I had mentioned to $ goes before him. himself [After consultation]. has He wishes first call, H* changed if He will decide at the H* him possible Yes, penal- some- them, those ‡ it I tion.10 understands that All not talk about that he can do that without cross understand that to want about this no evidence on behalf address them on is his life or decision? of view? That’s not factual evidence. What he would THE STEVEN SHELTON: I [*] am to represent COURT: saying matter, ^ any is as if v and that he does probably a [To factual yourself far as my point of view. Hi Steven yourself, In whose circumstances, that and does your believes Hi not smart intend to examina- Shelton], decision feelings do point Hi you you understand THE Do COURT: my position Secondly, he asked that decision on may I think it’s not a smart him, I assisting give be able to your part? argument argue my closing Yes, I do. against the death be- STEVEN SHELTON: position on— 26, 1993). (Feb. (Feb. 1993). 9. Tr. at 55-57 atTr. 14-15 26, 1993). (Feb. 1993). (Feb. at 57 Tr. Tr. *50 correct. That’s SHELTON: that STEVEN you Do understand THE COURT: represent to dangerous more always it is you And understand THE COURT: one’s self? say Willard, trying I was to as that Mr. and lawyer is a ago, a moment not too well I understand SHELTON: STEVEN to case and your job to believe it’s that. he and professional, the case as a present this, I am to ask going THE COURT: emotional doesn’t become doesn’t have—he If I you ago. I awhile though asked even your yourself. Do person- like the —like you yourself and you represent permit understand that? any present own not to your choose on Yes, under- I STEVEN SHELTON: evidence, you do understand that.11 stand decision, my your and that decision that you make be stuck are ones that decision any post-conviction on appeal,
with on lawyer, profes- as THE As COURT: time? remedy or at other himself, sional, representing since he’s you Yes, represent he’s here to I do. but since SHELTON: STEVEN can, is better able he best extent say I stuck THE COURT: When your behalf the evidence present it, you may not be able to come you back— in the weaknesses jury any out to the point may not to come back or will not be able that? you understand case. Do State’s Judge say to come back and be able Yes.12 SHELTON: STEVEN to do that. Do shouldn’t have allowed me you understand? Shelton, Yes.
STEVEN SHELTON: I All Mr. right, THE COURT: your request, not going grant am you that? THE Do understand COURT: repre- you I allow one. will amended I understand STEVEN SHELTON: fully I am satisfied yourself.... sent decision is based on the either My that. you of what you understand the risks that that. situation. I hold true to life or death that fully understand doing, you are you THE Do understand COURT: do- you are not yourself, by representing far as reasons to presenting your as having than thing, rather ing the best of a why get should a recommendation you you though you, even lawyer representing why impose I should life sentence get your may be able may you believe sentence, Willard, Mr. no disre- life say things, in and to come family members trained, very as a spect you, Mr. Willard them, than Mr. Willard. rather you if ask very competent lawyer experienced Yes. STEVEN SHELTON: court, many had cases this who has under- But that still—I THE COURT: that to would be better able you understand appreciate that stand and you would? jury and to me than could hurt that still appreciate Yes. SHELTON: STEVEN jury, correct? you presence in the that risk you accept THE And COURT: Yes, I do. STEVEN SHELTON: penalty? death though it means the even be able will [YJou THE COURT: Yes, I do. SHELTON: STEVEN stand-by counsel him as freely consult with next proceedings resume these the when we possibility THE Or the COURT: .... any matter week about penalty. death 26, 1993). (Feb. 26,1993). (Feb. at 88 13.Tr. 11. Tr. at (Feb. 26, 1993). 12. Tr. at 77 you You grade have an eleventh can’t talk about the surrounding facts are— education, years you old. You are murder. youDo understand that? not— say
have—and I don’t disparagingly, this STEVEN SHELTON: Yes. part but it’s of the I decision have to make in terms of your whether decision to do THE I you COURT: And find that do is knowing, intelligent voluntary. that, understand and that that part *51 experienced You are justice the criminal made, you decision that have that you system.... have, you And days after two think you might that that. do You under- talking of further to your family about it you right stand that have a to do that to Willard, and Mr. you repeated jury. me to the decision, except with the one thing about Yes, STEVEN I SHELTON: do.14 being Mr. Willard to speak jury able to the behalf, your on which I cannot allow.... Allocution Statement of Steven Shelton said, however, IAs that not prohibit does Pages 62-63 you from consulting first at any time with Transcript Penalty Phase Proceed- Mr. you Willard about might what want to ings do, any ask, questions you might want to 3,1993 March or about other matter anything or else Herlihy, Jerome O. J. during the proceedings. course of these ‡ :j: # youDo H* understand that? STEVEN SHELTON: Yes. gen- STEVEN SHELTON: Ladies and tlemen of I jury, you stand before not Further, THE pre- COURT: it does not plead my to for I wrong life. feel that’s you any way vent from speaking to the improper basically disrespectful to the jury in you allocution and to me. Do family victim’s and to mine. understand that? The State a painted picture, has Allocution, STEVEN I SHELTON: picture very pretty, is not pertaining don’t— my to me and And I co-defendants. THE COURT: Allocution very is a tech- just like to a jury to the different word, nical speaking your side or a different to meaning Steven Shel- I apologize using own behalf. for the word ton. lawyers [even] most don’t Al- know. pictured being The State has me as a very legalistic locution is a way asking monster, rapist, being as as being sentencing authority, whether it’s a individual, you violent but as heard from jury, give you mercy, spare your my family, only that’s not so. The State case, you life this and sentence to life. presents picture. one side of the There’s means, really That’s what it explain every story. two sides to And the State your humanity, you know. just presents the negative side. STEVEN SHELTON: I understand. The jury guilty has found me of these THE you COURT: Whether want to— allegations, jury’s and now it’s the turn to you can’t about argue the facts. You can render a verdict. And that verdict ei- yourself, your talk about background, your jail Again, ther life in or death. I’m not education, upbringing, your your folks at life, plead my just here to but ask the home, any problems, alcohol things abuse jury to be fair their decisions. like that. You can talk about all those things you as much just say.15 as want. You That’s all I have to (Feb. 1993). (Mar. 1993). 14. Tr. at 90-94 15. Tr. at 62-63 B APPENDIX want- himself but represent still wanted Opinion at 88-94
Memorandum As from counsel. assistance ed certain 22,1997 December coun- trial self-representation, part of Herlihy, O. J. Jerome right speak sel said reserved Steven Steven was Counsel said in allocution. Allocution that he had the stand and to take prepared impermis- argues that this Court Steven without cross-examination. speak speak in allocu- sibly restricted his prompted comment This latter ... tion. stand, if took the say Steven it But in allocution. initially speaking out of a collo- These claims arise he is allocution, Court, spoke if he trial noted that Steven’s quy involving discuss the earlier,74 he could not he was told noted counsel and Steven. As Trial surrounding the murder.75 him- events represent initially wanted Steven *52 understood that Steven replied counsel hearing. After during penalty the self said Steven limitation. Counsel that mind and days, changed he his several life, about feelings his speak would of his remain, trial counsel to but with wanted do so and that he would with- this matter certain conditions. the of discussing the circumstances out discussing with the Court was When this, said, would All counsel murder. of his initial decision trial counsel and Steven Even later cross-examination. be without himself, his counsel indicated represent re- the Court proceeding, same the killing told him the was so that Steven that in allocu- directly viewed with Steven horrible, jury nothing he could tell the regarding facts present could not tion he enough mercy to recom- engender would the murder. law- death. told his mend life over Steven hearing a penalty for procedure mercy would have yer begging that by statute: up set is, [effect]; it more that make adverse pre- may hearing, the evidence At His likely death would be recommended. the Court any matter that sented as to Steven’s counsel and Steven discussed and admissible relevant deems if thought nothing, he said Steven imposed.76 to be recom- have a better chance of life mendation. (then acknowledges readily This Court that be- say went on to Trial counsel now) admonition Lockett v. of the as evidence that Steven cause there was some Eddings v. Oklahoma78 Ohio77 Outten, culpable as Nelson and was not as re- by letter] [amended [no] there can be jury appropriate would find it more presentation on placed strictions life, if he did particularly recommend instruc- This Court’s evidence. mitigating All this was related to mercy. plead on any restrictions way placed in no tion by counsel as Steven’s the Court Steven’s pres- could evidence Steven acknowledged to directly thinking. Steven ent. thinking. that this was his the Court go- what clearly understood Steven is, That to do. what he wanted ing trial on and proceeding, in the
Later same cross- to him of the risk clearly he realized informed the Court Steven counsel 57 L.Ed.2d S.Ct. 438 U.S. 77. omitted]. [footnote (1978). single routinely given in 75. This admonition is capital cases under multiple defendant 71 L.Ed.2d 102 S.Ct. 455 U.S. circumstances. (1982). 4209(c). llDel.C.% jury. wanted or make to having examination and wanted to avoid to Steven did error, it. undergo strong suggestion, legal There is Since there was no counsel did however, “allocution,” any way professional Ste- not breach standard of present ven wanted to his version of the conduct.
events and to do so without State Yet, being questions. able ask him as jury What Steven said to the was consis- lawyer acknowledged, there was lawyer and he told the tent what his during guilt phase “some” evidence jury’s presence outside the was the argue from which he could that his involve- manner he wanted to his case ment was less than Nelson and Outten. penalty hearing. He felt he There never was a restriction of kind mercy after the could not ask for had arguing already from that which was found him of a heinous murder. To guilty evidence. The Court concurs there was so, acknowledged, do would risk offend- argument evidence on which such an could greater like- prompting argument have been made. Such an lihood of a death sentence recommenda- param- would not have violated the Court’s tion. had indicated to his trial Steven speaking eters on allocution. this counsel and the Court that would be agree ap- The Court cannot with what indicating approach prior to the Court pears argument to be State’s Thus, those parameters allocution. argue claim. The seems to that the State *53 parameters way in no affected his talk to 4209(c)(2) §in provision which enables de- jury. counsel and to present fense the defendant underscored That observation is argument covers the defendant’s lack of indication of what he would speak allocution. said, if no existed. To parameters have The Delaware has never Supreme Court put way, it another Steven cannot demon- Clearly, had to address that contention. say actual He does not prejudice. strate of both statutory counsel and nor does he what he would have said show present argument defendant to avoids the as-yet, how that unarticulated allocution capital sentencing flawed statutes which probably caused more votes only meant one or the other could recommending a life sentence. Even Further, argument.79 is not ar- allocution allocution, properly he could have referred gument.80 to his lack of pointing to the trial evidence involvement and not violated the Court’s Rule Criminal 32(a)(1)(C) parameters. requires this Court to afford a in allo- opportunity speak defendant the defense fully was aware of requirement cution. Such a has been rec- undertaken, namely, his vigorously he had ognized decisional law.81 But this Court jury, obviously, found limited role. The prevent speaking did not Steven from defense. It heard against him on that allocution nor did it limit the information and possible [suborna- evidence of threats noted, the jury. he could mention to As most, per- perjury. Better than tion] there was no limitation on the the risk to haps, fully appreciated Steven present. evidence he could jury’s verdict to its challenging him of short, therefore, it seeking In not face and to reinvoke defense Court did placing parameters clearly rejected. err in on the allocution had so State, Del.Supr., 429 A.2d 79. See Harris v. 306 Md. 509 A.2d 81. See Hooks v. (1986). (1981); accord Green v. United States, 301, 304, 365 U.S. 81 S.Ct. (1961). Id. L.Ed.2d 670 Finally, argument appears Steven’s that, placed any if the Court had not allocution, he would have
limitation on his uninvolved,
told he was was off Mannon was beaten and bushes when say
never hit him. He does now
is what he would have said so this claim
rings rings hollow. It hollow also bit he would say
because to now have said in the face of his decision not to flies
beg mercy jury by or offend the rear-
guing its verdict. short, therefore, Steven meet cannot prejudice test under Stñckland/Al-
bury. proceed- Nor can he show fundamentally unfair unreliable or Accordingly,
or defective. this claim of cannot
ineffectiveness stand.84
Jerry KRIM, Plaintiff,
PRONET, INC., Kimzey, R. Jackie David Vucina, Hopper, Harvey
J. Max D. B.
Cash, Jungerman, E. and Edward De
fendants. No. 15873.
C.A. Delaware, Chancery
Court of County.
New Castle June
Submitted: Sept.
Decided:
¶
(1996),
Del.Supr.,
7].
Order at
682 A.2d
[v.
Grace
notes
(1998) (holding
396
affords
Constitution
no
right to
unsworn
of
make
statement
remorse
586, 604,
subject
before
the
is not
to cross
129. 438 U.S.
98 S.Ct.
57
added).
examination).
(1978) (emphasis
L.Ed.2d 973
495
Criminal Rule
crime,
Superior Court
long
of the
so
as Delaware
the circumstances
32(a)(1)(C)132
Lockett,
pen-
death
and the Delaware
is
how-
that evidence
relevant.130
§
ever,
subject
statute,
Del.
4209.133 More-
involve allocution not
C.
alty
did not
over,
It
has con-
to
essential to
decisional law
cross-examination.131
is
Delaware
in
speak
this funda-
of a
to
apply properly
right
understand and
the
defendant
firmed
unrestrict-
in
pro-
mental distinction between the
a different
Although
allocution.134
context,
to
right
present
“[a]ny
ed
relevant evidence
stated that
we have
cedural
being
speaking in allocution without
sub-
to
to adhere
the
failure of a trial court
ject to cross-examination. Notwithstand-
‘an error which is
right
allocution] is
[of
of
the
ing
interpreting
the multitude
cases
jurisdictional nor constitutional
neither
an accused to
evidence
right of
in-
not a fundamental defect which
[and]
sentence,
the
of a death
law
mitigation
complete miscarriage
in a
herently results
allocution,
right
the
even
surrounding
a denial of a
justice’
of
so as to constitute
cases,
unclear.
In-
penalty
death
remains
fair trial.”135
deed,
is
it
unclear under Delaware law.
desirable that we be clear
the
It is
Thus,
presented
the
here are of first
issues
decision in this matter rests
basis for our
impression.
adequate
on state law as an
solely
is,
That
our conclu-
independent ground.
regard
With
States
United
right
has a
Constitution,
sion that
the defendant
whether
we decline
decide
limited
is
"defined and
here
Eighth
the
and Fourteenth Amendments
allocution as
or
provide
right
by
a
of
not a
either the federal
capital
granted
a
defendant to
a right
constitutions.
It is
make before the
an unsworn state
state
solely
on the
subject
grounded
ment that is not
to cross.-examina
Instead,
Rule,
penalty
the
death
tion.
we hold that the common Criminal
Delaware
speak
the
and Delaware decisional law. No
law
of
defendant
statute
constitutional,
sentencing
statutory
or deci-
connection with
is based on federal
sentence,
("Noth-
imposing
court
See id.
604 n.
Before
the
shall
130.
at