*1 556 (3) sister, of Bruce’s Bruce’s
Mend addition, In ANO, fingerprints were on the car. Defendant Thomas J. CAP presented at trial to there was no evidence Below, Appellant, that the car had been stolen from indicate v. prosecutor clearly Bowie. Because the Delaware, Plaintiff STATE of presenting an infer- signaled that he was Below, Appellee. supporting ence and described evidence inference, prosecutor’s argument 149, 110 and Nos. point improper. not Supreme Court of Delaware. argues Bruce also that the tri appropriately al court did not cure another June Submitted: by prosecutor statement in which he 10, 2001. Aug. Decided: attributed defense counsel’s statements di trial rectly to Bruce himself. As the court
implicitly by sustaining the recognized
subsequent objection, prosecu defense improper statement was because it
tor’s implicit
constituted an comment on right
Bruce’s decision to exercise his testify. But the trial court neutralized
any prejudice by from this remark in
structing jury: gentle “Ladies and
men, speak. He has defendant doesn’t fact, obligation speak. got
no he’s right speak.
constitutional not to What argument heard
you from his counsel was
that his counsel made based on the evi ” in the record.... The court then dence comment, and the offending
struck the
prosecutor apologized. remedy This any preju than eliminate adequate
more
dice.48
Conclusion reasons, affirm foregoing
For the we Superior Court.
judgment of
State,
(holding
thorough jury
Del.Supr.,
A.2d
that an immediate and
v.
508
Diaz
Cf.
("Even
(1986)
prejudicial
improper
error is
disregard
when
state-
instruction to
committed,
usually
by
effects);
it will
be cured
mitigated
Pennell v.
ment
statement’s
disregard
judge's
to the
instruction
State,
(1991)
Del.Supr.,
A.2d
remarks.”),
by
abrogated
grounds
on other
("[W]e
prejudiced
find that Pennell was not
437, 448,
California,
v.
505 U.S.
Medina
remarks,
prosecutor’s
which were
(1992);
mington, Ramunno, & Wil- of Ramunno Esquire, Delaware; A. David Of Counsel: mington, of Ruhnke & Ruhnke, (argued), Esquire Z. Montclair, Nathan Barrett, Jersey; New Dershowitz, Eiger, B. Victoria Esquire, Adelson, Esquire, Esquire, Amy Adelson, York, Dershowitz, New Eiger & Dershowitz, York; Esquire, M. New Alan Massachusetts; Paul Shecht- Cambridge, man, & Esquire (argued), of Stillman York, York, Friedman, P.C., New New Appellant. Wharton, Esquire (argued), W.
Ferris Esquire, Timothy J. Meyers, Loren C. Brown, Donovan, Jr., E. Esquire, Thomas McFarlan, Es- and Elizabeth R. Esquire, Justice, Wilmington, quire, Department Delaware, for the State. Justice, VEASEY, Chief
Before STEELE, Justices, WALSH, HOLLAND, Chancellor,* CHANDLER, Bernstein, (argued), M. Joseph Esquire en Banc. constituting the Court Delaware; Oberly, Charles M. Wilmington,
III, VEASEY, Justice. Oberly Jennings, & Chief Esquire, Wil- * 4(a). IV, 2 and designation pursuant Supreme Court Rules Sitting by to Article Delaware Constitution and Section 12 *22 16, 1999. This on March Capano to death
I. Introduction appeal followed.1 guilty of Capano was found J. Thomas following sixteen and sentenced the Capano murder asserts degree first Fa- of the conviction of Anne Marie for reversal grounds the murder death for Delaware, sentence, by him on presented in order capital cases in the with all hey. As in into a in the order discussed appeal here were divided proceedings this —not and a sen- penalty hearing Opinion: this phase, guilt judge, trial by the tencing determination to instruct trial court’s failure 1. The jury’s weight to the gave who substantial included offenses jury on the lesser penalty following recommendation First offense of Murder charged hearing. Degree; mur- Fahey’s for
Capano was arrested
Fahey’s hearsay
2. The admission of
in De-
1997 and indicted
in November
der
psychotherapists
statements
to her
Superior
in
began
His trial
cember 1997.
friends;
phase
guilt
in October 1998.
Court
prejudicial
“bad
8. The introduction
quite
jury
was
proceeding
this
before
evidence;
“character”
act” and
thirty-two
spanning approximately
long,
suggesting
argument
4. Evidence and
spread
ten weeks from
days
over
Capano took a lie detector
Gerry
17,
Af-
January
1998 to
1999.
October
test;
Capano
found
jury unanimously
ter the
Capa-
Improper
5.
cross-examination
murder,
penalty
guilty
degree
of first
jury
improper remarks to the
no and
It
lasted for five
hearing commenced.
closing argument;
in
jury
days
findings
and resulted
person-
express
witnesses to
Allowing
mitigating
circum-
aggravating
on
guilty;
was
opinions
al
penalty phase
In the
stances.
circum-
statutory aggravating
found
investigate
failure to
7. The trial court’s
by a vote of 11 to
and recom-
stance
and to dis-
juror bias or misconduct
the trial
by a vote of 10 to
misconduct;
mended
juror
alleged
miss a
circumstances
judge
aggravating
find the
from certain office
Capano’s
absence
outweighed
mitigating
circumstances.
of his Sixth
conferences
violation
present at all
right to be
find-
Amendment
proper weight to those
giving
After
trial;
stages of
Superior
Judge sentenced
ings, the
Court
Capano,
See State v.
September
dated
4209(g)
§
an automatic
1. Under 11 Del. C.
N97-11-0720, Lee, J.,
Court on March
appeal was docketed in this
Super., Cr. A. No.
Del.
appeal
that automatic
1999. While
1, 1999) (Mem. Op.).
(Sept.
quire the to turn State over by Capano byor the Court. The remain- of Gerry defense evidence ing eleven issues are dealt with carefully use; drug Opinion. But will they not be men- *23 10. The trial court improperly limited summary tioned in this of the conclusions allocution; appeal. on reached 11. charge ag- The trial court’s on all As to sixteen we find issues no re- gravating circumstance that “the affirm versible error and judgment we premeditated murder was and the Nevertheless, of the trial court. the five planning” result of substantial principal issues in mentioned this Sum- erroneous; mary raise substantial questions that have 12. death is penalty Delaware’s statute given us some areas of concern. After a unconstitutional because it does not thorough review of the extensive trial rec- require findings unanimous ord, parties, the voluminous briefs of the to respect aggravating circum- arguments law, two oral applicable and the stances; however, our concerns have been resolved. Imposition of in penalty the death It now is clear to there us is no disproportionate this to the case reversible error either in the guilt phase cases; in penalty imposed other penalty phase or the in the in proceedings judge 14. The trial was not impartial and Superior Court. required, therefore reversal is or in alternative, develop a remand to 1. The Lie Detector Test issue; to facts related this 15. The trial court’s inconsistent admis- major categories Two of evidentiary is- infidelity sion of of evidence marital sues are dealt with at the outset of impeach credibility wit- Opinion. The first to Gerry Capa- relates nesses; and testimony no’s his lawyer that of relat- prosecutor’s 16. The cross-examination ing to a lie Testimony detector test. re- of Capano concerning post-arrest si- garding results of lie detector tests are lence. normally inadmissible. That was not the issue here. The issue here related to ref- Summary A. Conclusions of to the involving erences lie detector test on Appeal Reached It Gerry. was the mention the threat of appeal being penalty This in a death a lie detector test in describing high apply case we degree scrutiny government’s the dénouement of the inves- Capano the sixteen issues has presented as tigation agents seeking per- its were appeal. us this direct Four of the six- Gerry testify against suade his brother. teen argu- issues were selected for oral ment. issues were Three of these selected the lie detector We hold mention of by Capano’s appellate counsel in the first point Gerry’s for deci- trigger test as the oral on argument held October cooperate related issue of sion to and the The fourth issue was sponte selected sua Gerry’s vouching credibili- lawyer’s by the Court for additional briefing and improper but reversible error ty were oral argument held June limiting trial judge’s instruc- light
We deal this Summary totality all the and the evidence with these tion four issues significant and a fifth issue that in this trial. presented long application we conclude that this
2.Hearsay Testimony by Fahey’s Finally, hearsay Psychotherapists exceptions of Delaware’s Friends run afoul the Confronta- rules does not Clause of the United Constitu- tion States diaries, Fahey’s emails between tion. testimony of Kim Fahey and the Lyneh-Horstmann were admitted into evi- 3.Lesser Included Offenses agreement dence of both the State judge Capano contends that the trial painted Capano. stipulated That evidence jury that it instructing erred in not mind, picture Fahey’s general state could convict of the lesser offenses relationship rocky, on-again-off-again her *24 Degree, Manslaughter of Murder Second psychologi- her Capano with need Criminally Negligent Homicide. or this cal treatment. A central theme of was judge trial concluded that there no Capano’s ef- stipulated evidence involved charge in evidence for a rational basis the Fahey’s forts to control life. jury any to the of these lesser included on Capano’s objection, judge the trial Over (a) case, if because: the State’s offenses by other evidence the admitted offered only by jury, believed the tended show tending Fahey’s State state of show (b) murder, and premeditated, degree first mind, attempts psychiatric her to seek testimony Capano’s killing that the was a help in and certain incidents that occurred tragic only the alternative accident was relationship Capano. with evi- her That offered, Capano’s testimony evidence dence, Fahey, admitted quoting was only outright with ac- was consistent through psychotherapists the of quittal. hearsay, and friends. It it was obvious but the correct judge was admitted in evidence the trial We hold that trial with judge, limiting instructing jury often careful instruc- in not the on the lesser as jury purpose, tions the to its under no rational included offenses. We find exceptions hearsay Fahey’s to the rule for argu- support basis in this record to the state of mind and diagnosis medical or Capano of jury acquit ment that the could treatment. him Degree First Murder and convict of any of the lesser included offenses. The that quotations Fahey
We hold the from only Degree First supported evidence going to her properly state of mind were outright acquittal. Murder conviction or an exceptions admitted under established Furthermore, we no federal constitu- find hearsay the rules. We further hold that tional in the of the trial violation decision testimony quoting Fahey’s certain recollec- jury judge to decline instruct the on of tion facts was inadmissible under facts of lesser included offenses under the exception, of state mind but the admission this case. these factual recitations was not revers- subject error mat- general ible because 4.Limits Allocution on already stipulated in ter was subsumed judge Capano contends the trial agreed to Capano pres- had evidence pen- in the improperly right, restricted hold, jury. ent to also alternative- We speak directly in alty phase, to allocution psychotherapists’ testimony re- ly, subject being or jury to the without sworn garding Fahey’s to them for statements Capano had testi- to cross-examination. or purpose diagnosis treatment guilt in the length jury fied at before this ad- independently her mental condition is extensively in phase spoke and he to them diagnosis the medical missible under penalty hearsay phase. rules. allocution in the exception treatment to the any trial argues judge improperly that the de- on of the other issues raised on this right argue Therefore, nied him the to discuss or facts appeal. we affirm the judg- in already guilt evidence at the phase, Superior ment of the Court and remand judge’s that the trial harsh treatment setting the matter for the aof new execu- cutting him in presence off tion date. unfairly prejudiced question him. The Background B. Summary of presented on appeal,
first so we review it Leading Facts to Trial plain on a error analysis. case, developed The facts of this as judge hold that the erroneously We evidence adduced over course of permit- limited allocution trial, this ten-week are extensive. What him ting argue discuss or allocution summary follows in this section is bare already from facts But the record. we some of the More salient facts. detailed error hold this was harmless under all facts are discussed in connection with the the circumstances and was not Opinion dealing various sections of unduly prejudiced. specific presented appeal. issues Constitutionality Delaware’s *25 Fahey, Anne Marie sec- scheduling Death Penalty Statute for retary then Governor Delaware’s Based on a distinguishable recent Unit- Carper, Thomas was seen alive on last ed Supreme Opinion, Capano States Court 1996, Thursday, she went to June when argues that Penalty the Delaware Death Philadelphia. dinner Fa- Capano with in Capano Statute is unconstitutional. claims 30, 1996, hey’s family reported on June permits that the statute unconstitutionally that she An inves- missing. was extensive judge, the trial jury a unanimous after tigation en- disappearance concerning her finding possibil- of guilt that authorizes the sued. That in culminated investigation ity of the death im- penalty, decide to later, November months sixteen over pose death jury without a rec- unanimous in Capano’s murder. Fa- arrest her for in ommendation penalty phase. body found, however, hey’s and was never We hold that authority by relied on pre- the State was unable to establish Capano argument. does support this by Fahey cise manner which died. Supreme The United States Court has Capano was a well-known Delaware never held that a judge’s imposition of a partner at lawyer and managing former death sentence a following unanimous find- Wilmington major Philadel- office of a ing guilt by jury and less than a phia-based estranged law firm. He was unanimous jury recommendation of the in from of four his wife is the father and penalty phase a is a right denial of the to a (Louis daughters. He has three brothers jury trial or a otherwise denial due Jr., Capano and Capano, “Gerry” Gerard process. We hold that the Delaware sister, Marian Joseph Capano) one and Death Penalty Statute is constitutional and (Capano) Ramunno.2 was properly applied here. mystery a Fahey’s was
Accordingly, disappearance we have found no revers- ible error committed for a time before considerable by the trial court and no basis who Capano, to vacate sentence, with murder. charged the death her ei- ther on the five to have person issues seen summarized above was the last known 2. We sometimes relationship We refer to the to his brothers. defendant as him "Capano” "Tom,” or as by first usually brothers their "Thomas” or first refer to the name usually being Joseph). employed referring (e.g., Gerry, names Louis and when relationship Capa- with early on-again-off-again her alive on June diaries, read by Importantly, the Wil- these as suspect investigation no. sister, By mington mid-July Police. her emails between into evidence joined investigation, FBI in the actively Fahey, and grand and a federal heard evidence into were admitted Lynch-Horstmann Kim year. Capano deny for over continued by stipulation. evidence any Fahey’s disappearance involvement 1995, Fahey met Michael September In for explanations and even various offered in the while she was still involved Scanlon Throughout her the investi- whereabouts. rocky relationship Capano. with After a 1997, Gerry Fall and until the gation Scanlon, relationship with beginning her Louis as well as Deborah Capano, him. in love with she fell MacIntyre, Capano, of Tom a mistress eating from a serious Fahey suffered continually lied about material evidence Capano knew about Although disorder. implicated Capano, that could have even illness, actively trying to Fahey’s and was lying grand the extent of to the federal help, Fahey her hid her disorder from get jury. afraid that She also was Scanlon Scanlon. 1997, Gerry’s In was raid- October house relationship Capa- would learn her illegal who agents ed federal found man, no, kept a married secret drugs weapons. November from him as well. Gerry agreed wit- cooperating to become plea ness in exchange to reduced Scanlon, Fahey dating she began After charges. began cooperate also Louis relationship with tried to break off her *26 with the in as authorities November 1997 very upset pur- and Capano, who became plea a part agreement. MacIntyre like- entry by In a relentlessly. diary her sued wise in eventually agreed cooperate ex- 7, 1996, Fahey April dated she wrote change for agreement charged not to be finally Tom brought “I have closure to with perjury. Capano controlling, manipu- ... what a lative, Also, jealous insecure maniac.” one Summary C. Facts: Case The State’s Fahey’s psychotherapists, who many by There presented were witness Fahey connection her eat- treating in with key the State in its case-in-chief. The (and ing being whose bills were disorder witnesses included two of broth- Capano) paid, part, by at least in testified ers, Louis; Gerry MacIntyre; and Deborah that, and period February in the between Fahey. and and psychotherapists friends of early April, Fahey spoke to her often The State constructed circumstantial Capano. about how she felt “controlled” case, theory of the which rested on three Capano relationship As her became (a) “motive,” broad of evidence: categories strained, eating ag- her disorder became (b) (c) “plan,” guilt.” and “consciousness of 1996, however, By Fahey gravated. April The State’s “motive” evidence consisted Capano had come to believe that she and diary in Fahey of statements recorded her friendship could had established a that she family, allegedly and those made to her more manage continuing while become Fahey psychotherapists. friends and be- involved with Scanlon. in gan dating Capano March 1994. She was, and theory circumstan- State’s kept relationship, its inti- at least show, offered tial evidence was nature, her mate hidden from most of plan Fahey’s Capano already begun had family, friends and her and from the even 1996, Capano two February In told death. psychotherapist seeing she brothers, story Gerry Joseph, and personal time. Her detailed her diaries his Suburban, being about threatened one or more Thomas took larg- his wife’s Capano Cherokee, bor- Jeep unidentified extortionists. than er vehicle back to $8,000 Gerry, paid rowed from which he Gerry. By his house to await the time back a days few later. This loan was a.m., Gerry arrived about 8:30 supposedly in the extor- connection with put had a chain and lock on the cooler. tion. time after mon- borrowing Some Gerry told Thomas to remove the lock ey, Gerry provided Capano handgun with a chain, placed and and the two the cooler Gerry by May that was returned to of that into the back of the They Suburban. year. time February Some between together Gerry’s drove the Suburban May if Gerry asked he could Harbor, Jersey. house Stone New borrow his boat if dispose he needed to boat, They Gerry’s carried the cooler onto body. after purchasing gasoline, they took In April Capano purchased a 162- approximately sixty the boat miles out to quart marine cooler eventually used to dis dumped sea and the cooler over the side. pose of Fahey’s body. May Capa- sink, The cooler did not In an however. no had Ms mistress of years, seventeen cooler, unsuccessful effort sink Ger- Deborah MacIntyre, purchase a gun for ry shotgun shot a hole in the cooler with a trial, him. At MacIntyre testified that on Finally, Gerry pulled used to kill sharks. 13, 1996, May Capano drove her to Miller’s and, after alongside the boat cooler where, Gun Center request, at his she anchors, with two providing Thomas purchased a handgun while he waited wrapped the away turned while Thomas the ear outside. returned to She car body weighed it down with the chain gave him the and some gun ammum Gerry with the anchors. turned time to MacIntyre tion. said she never saw the leg see of a human sink down into the part gun again.3 Gerry ocean. rinsed out the cooler and 27, 1996, Thursday, On June Fahey left tossing removed the lid before both back work at p.m. about 4:30 and went to an returning into the water and to Stone Har- appointment with psychiatrist. her After- bor. ward, Capano picked Fahey up at her Wil- *27 in back to Thomas’ house They drove mington apartment and drove to a restau- Wilmington. They carried the blood- in rant Philadelphia for dinner. Their rug love and from Thomas’ stained seat server the restaurant that they testified garage Gerry to the “great room” where speak “didn’t to each other at all” and that no up Having tried to cut the love seat. Fahey looked “haggard gaunt,” and and seat, they dismantling luck in the love had a “somber” demeanor. Fahey was nearby at a con- placed dumpster it not thereafter seen alive. operated by their brother struction site Friday On 28, 1996, morning, June Louis, developer. point, Gerry At this Thomas drove to Gerry’s his brother house afternoon, Saturday home. June went On at about 5:30-5:45 a.m. Thomas asked to 29, 1996, his bought rug a new Thomas Gerry’s borrow Gerry boat. testified that great room. he Thomas, asked you “Did do it?” and replied an ini- Wilmington Thomas Police conducted The that he had. Gerry and agreed Saturday Thomas to Thomas that meet tial interview with later Thomas’ house and Thomas Sunday went on after- They home. returned night. 3. MacIntyre originally try protect investigators losing Capano lied her to to to had driven about their relationship gun pur- and the him. chase, but eventually admitted her fear of sitting were home, Fahey Capano and conducting p.m., 11:00 noon search Thomas’ to in Capa- through” “walk with con- on a love seat escorted next to each other sent. on. the television great no’s room with Fahey and Capano, while he According Sunday, spoke Later that Thomas with seat, MacIntyre love talking on the were Fahey his brother Louis and told him that saying and very upset, yelling arrived home, staining had slit her wrists at his why “Is this?” and seat, things like “Who’s okay. but that she was love got said he you Capano that the see me?” asked Louis to make sure couldn’t Thomas dumpsters at site were face up his construction seat and stood to from love emptied next he day (Monday) because Fahey yelling. continued MacIntyre, who had love seat and some of disposed (Capa- on put pantyhose back began to her belongings dump- in the Fahey’s personal had taken them off due no she testified emp- dumpsters Louis ster. ordered heat) shoes, telling her collected Monday though they tied were not on even Capano wanted to leave immedi- that she all full. ately. 31,1996, July In a later search on feder- pulled gun MacIntyre then out spots al investigators discovered small Capano herself. threatened shoot Capano’s a wall in great blood on room. prevent he arm to grabbed claims that her spots sample compared The were with a her, causing MacIntyre accidentally Fahey’s through a blood blood from bank ear, Fahey right killing her shoot behind DNA testing likely and found to be instantly. Fahey lying on the love her match. Capano seat. claims that he MacIn- remaining relevant details of the attempted perform Fahey on tyre CPR are State’s case discussed in connection not be and then realized she could saved. on Capano’s arguments ap- various peal. presented Evidence de- himself and MacIn- protect In order fense follows. 911, an act that tyre, Capano never called “cowardly to on the stand as referred D. Summary Facts: The Case Defense Capano testified MacIn- selfish.” in his defense that testified own it, as tyre dropped gun, and he took Fahey had died as a result of an accidental clip well the bullet that was MacIn- as shooting great that occurred room MacIntyre tyre’s car. made sure 27, 1996, Thursday, of his house on June home at about right was all and sent her Fahey Capa- seen. night last rebuttal, p.m. the State’s case 11:30 took no testified after dinner he her *28 these claims and said MacIntyre denied apartment dropped back to her where she night. not at house that she was her; for groceries bought off some he had the up he drove to his house to watch he then cleaned Capano then her said television, shortly p.m. after 10:00 arriving put Fahey’s body in the cooler blood night, Fahey Later that with still Capano previously bought. he had house, MacIntyre Capano spoke to over Fahey’s went claimed that he over un- telephone. They the had a brief and arranged it to look as apartment and Capano in told pleasant conversation which He testified she had been there. though not come over MacIntyre that she should Gerry morning, he and the next that night, to his house that as she often did. off body into the ocean dumped Fahey’s Capano’s testi- Gerry’s of boat. the side Capano min- then testified that several in of its essentials later, many confirmed past mony five minutes utes around put of guilt” against “consciousness It backdrop evidence is this factual that by forward the State. turn arguments Capano we now to the on appeal. raises Capano also offered evidence to rebut plan- the State’s case based on motive and Preliminary II. Statement on the ning. Regarding his Fa- relationship with Admissibility or Exclusion hey, he in offered evidence that of Evidence months before death Fahey her he and were no longer developed lovers but had purpose The ultimate of admit friendship. warm Emails between the two ting excluding or evidence is to assist the them portray of were offered to a relation- jury’s understanding underlying of the fac ship by characterized banter. affectionate application tual bases for its of the law. Fahey per- confided in regarding reason, For this relevant evidence pre is therapy sonal matters such as her sumptively admissible unless barred turn help would to him for with items such restraints, law, statutory constitutional de helping as her air install new conditioner. or cisional law court rules.4 Capano gave innocent explanations for the evidence of planning offered provide Courts often for the ad purchased State. He testified that he the missibility of certain evidence for lim only a gift Gerry cooler as for for on his use purposes ited when that evidence might be boat. He testified that he mon- borrowed barred for one but purpose admissible for from ey Gerry surprise Fahey order to In another. such instances the re law gift $25,000 with of cash so she quires judge that the trial instruct get help could eating for her disorder. He accordingly.5 procedure This is calculated Gerry testified he did not ask for a provide the jury adequate with the fac or gun ask to borrow his boat or mention understanding tual base breadth extortionists, anything about but that it needs to a fair render verdict con product these were in essence the Ger- truth,6 with sistent while striking ry’s imaginings resulting confused from proper balance between relevant evidence Gerry’s drug use. potential prejudice.
In regard, presented expert Normally the decision whether testimony explaining phenomenon admit exclude evidence rests in heavy drug “confabulation” in He users. judge, discretion and the deci MacIntyre also testified that bought judge sion of the can reversed only be gun protection for her own against his objection of that If is abuse discretion. explain advice. To his decision not to re- made, plain re error standard of Fahey’s family veal to her and to fate applied. prejudicial view is investigators, Capano kept effect testified that proffered evidence often the protect MacIntyre, silent order to deter consideration, “deeply support requiring he was minative the trial whom love.” this contention he offered to make a judge balancing letters written threshold *29 MacIntyre Capano probative danger between him and value of while and the undue jail in trial. awaiting prejudice.7 was (D.R.E) See
4. Delaware Rules of Evidence 6. See D.R.E. 102. Rules 7. See D.R.E. 403. See D.R.E. 105. one Gerry it after Capano’s Gerry’s and returned handgun III. References to months, disappear- Lie Detector Test well before the or two (3) Fahey;9 Tom asked Anne ance of Marie Capano, of Tom Gerry one “if Gerry’s use boat Gerry if he could brothers, for the was a crucial witness threat- people of that was either one these a and credibility principal His was State. of hurt were hurt one ening to his kids to Gerry’s testimony hotly contested issue. something to and to do his kids he was and only the fact that he established (4) them;”10 his boat and and Tom used he body disposed Fahey’s of Anne Marie Tom containing a a cooler dispose to sea of sea, support but also was offered body.11 planned a homicide. theory the State’s investigation During government’s Gerry’s A. to the Reference emerged Fahey’s disappearance, Gerry Detector Test Lie witness, but possibly key government as that he dis- Gerry testified on direct cooperate willing was not to at first.
he lawyer three of these matters to his closed him government put pressure on After and police drugs found illegal before alleged possession in connection with his was weapons his home and before he firearms, Gerry agreed coop- to drugs plea agreement exchange offered investigators. erate with contrast, Tom.12 testimony against his Capano argues that in the references Gerry that he did not disclose testified (lie detector) polygraph to ex- fact that he and Tom had Tom’s discussed govern- amination connection with the dispose body Gerry’s boat to of a use of investigation Gerry’s cooperation ment Gerry agreed cooperate until after undermined the fairness his trial. Ger- I took police went and “[b]efore (1) on ry testified direct examination that: lie detector test.”13 requested Tom cash loan from $8000 immediately pay for Tom Gerry to unidentified extortionists not Counsel children;8 hurt Tom’s for a that ground Tom borrowed moved mistrial 11/9/98, my said to (testifying 8. Tr. of at 12-13 that he A. I didn't tell him that brother my $8000 lent Tom and that Tom "told me that somebody if kids me that to hurt people extorting them, two were and "were him” something could and I had to do kids, career”). threatening to hurt his ruin his we use boat. transcript pages We refer the trial for cer- Q. part you When did tell him that last days designating tain trial refer- the record story, your your if brother —about [month/day/year].” "Tr. of ence as somebody, asking you he brother if hurt the boat? could use 11/9/98, (testifying 9. Tr. of at 16 that Tom him that? A. When did I tell gun” me if because "asked he could borrow a Q. that, you you Lyons if When tell Dan did guy going beat "he was afraid that the at all? did him, up him or hurt come his house I did that. A. tell him him”). hurt Q. And when? 11/9/98, 10. Tr. of at 21. Before went and took a lie detector A. I test. 11/9/98, Tr. of at 23-49. testified, the court ruled Gerry Before Gerry detector not refer to the lie could 11/9/98, 12. Tr. of at 86-88. during testimony, prosecution and the test 11/9/98, colloquy 13. Tr. of at 88. exact Gerry he was not to mention the advised as follows: Conference, at 6-12. test. Tr. of Office 11/9/98 Q. you Lyons] when [Dan When did tell him story you you changed told first him? *30 outburst,
Gerry’s lie unresponsive reference to the detector test Gerry fixed encouraged the to jury Gerry govern- the to assume that time of his disclosure the ment I passed being took and test and was as “before went and took a the therefore he telling judge the trial detector test.”15 When the trial in- truth. The court denied motion, the unresponsive jury disregard structed the witness’ ordered the out- stricken, response, judge the trial said “the witness burst jury and instructed the did not whether or indicate not he had disregard Gerry’s detector lie remark. so, test, taken or if such a what the results complete The court’s instruction to the indicated,” might have admonished the jury point as follows: spec- any “not under circumstances to jury, Members of immediately be- ulate as to or not a whether he took such break, fore the luncheon the defense test, or results of such test what the a objected unresponsive to the answer of might have been.” the witness to Connolly’s question. Mr. The answer made reference a he de- judge trial ac Whether or tector test. testimony, curately Gerry’s characterized inadmissible, response Such even any may there have misstatement been though the did mot witness indicate was harmless. The was strick test, whether or not he had taken such a sug en no and there later references were so, ifor what results might have gesting Gerry actually took the lie indicated. detector now turn to the test. We remain state, The Courts of this the Federal der of this issue. Courts, state, every and those of other trial Capano argues that have consistently found such tests be Ca by denying court abused its discretion unreliable, and therefore inadmissible as Gerry pano’s after motion for mistrial evidence. during his referred to the detector test lie Therefore, you disregard are to the wit- automatically testimony. A is not mistrial ness’ response, you are not under however, required, every time witness any speculate circumstances to as to mentions a test.16 The polygraph test, whether or not took such a only court should a mistrial “if the grant
what the results of such a test might an inference reference to the test raises way have been. You in no are to consid- substantially preju about the result that your er the response witness’ deter- light dices the case” in of all defendant’s minations.14 prejudice assessing evidence.17 In problem references, The initial note is the confu- produced we have by such courts factors, sion record about whether or not variety considered a wide detector,, Gerry actually lie the ef- important took the test. most which are:18 11/9/98, argues Tr. 18.The that the inadvertence 113-14. State also prej- less the comment comment makes little, however, udicial. whether It matters 11/9/98, (emphasis supplied). Tr. of at 88 reference because "the harm .was inadvertent said, regardless is done that it was the fact Edwards, 16. See State v. Me. Md. v. of how it arose.” Guesfeird (1980) ("We 984-85 do not find it neces- (1984); People see also A.2d sary require to be mistrial automatic Yatooma, Mich.App. 271 N.W.2d any upon polygraph mention of a examination (1978) (finding that a mistrial witness.”). by a required de- although the reference the lie apparently tector isolated and test "was an Id. at 985-86. occurrence”). madvertent
589 (2) Therefore, the wit- instruction, you disregard are to the limiting of a fectiveness not response, are under you and ness’ depends to which the State’s case extent as to speculate to any circumstances (3) ex- the testimony, the witness’ test, a not he took such or whether or credibility tent to which the of the witness might results a test what the of such in dispute.19 is have been.20 argues that point, Capano this On respect to unsolicit Gerry’s With prevent could not the court’s instruction comment, the most factor is important ed discourage inferences even unwarranted the of the trial court’s cura effectiveness credibility jury Gerry’s about from by the it is tive As noted above —and instruction. may he have taken a fact that took or the instructed repeating worth trial court —the rule, general test.21 As a we polygraph the jury that: jurors presume that “the followed must present court’s instruction.”22 the state, of this Federal The Courts case, judge’s conclude the trial we state, Courts, every and those of other striking and his immedi consistently have found such tests to be sufficient limiting ate instruction was to unreliable, and inadmissible as therefore any prejudice to the defense neutralize evidence. Gerry’s his lie from comment about detec
tor test.23
State,
23. See,
Supr.,
Sawyer
Supr.,
e.g.,
Brinkley,
19.
v.
A.2d
Com.
Pa.
Del.
634
v.
505
Cf.
377,
(1993)
442,
980,
(1984)
(describing
380
relevant factors
(denying
A.2d
Pa.
480
986
mistrial);
reviewing denial of
see
motion for
part
defendant’s motion for a mistrial
be
803-06;
v.
480 A.2d at
Sullivan
Guesfeird,
also
"immediate
the trial
issued
judge
cause
632,
State,
634-35
Supr., 303
Fla.
So.2d
regarding
extensive instructions
the unrelia
(1974),
911,
cert. denied. 428 U.S.
96 S.Ct.
polygraph
bility
inadmissibility
tests
3226,
(1976).
1220
49 L.Ed.2d
cautioning
jury
disregard any
to
testi
tests”);
State,
mony concerning such
Beal v.
11/9/98,
Tr. of
113-14.
190,
(1983) (af
Supr., 453
Ind.
N.E.2d
193
support
argument,
firming
prosecution
despite
To
conviction
a
Capano cites
wit
Guesfeird,
(declaring
24. Tr. Office of 11/16/98 repeated this during instruction its final 1/13/99, charge to jury. Tr. of at Conference, 241-42. 25. Tr. Office .of 11/16/98 from the anee, hear, information could not withhold appropriate if he made a decision federal authorities caution, why, explanation moment, go in?” stop particular Gerry elected to
lying Permitting to tell the truth. “I him responded: told Lyons And Mr. *33 may in that testimony limiting any with a instruction I tell other client what would to by go a to judge you have been considered the If make decision situation. make full preferable in, a of action that and you go be to course have to speculate anything on a wide hold back. would leave to disclosure. You can’t if told me Gerry’s you If or have not range apparent you of scenarios for do something comes every detail and with the risk that some of little epiphany, meeting with federal have ir- out the course of speculative scenarios could been it come and bite prosecutors, will back and relevant false. crucial, end, just rear and it’s you on the emphasized impact of The State Gerry, I this to I need to know and said clos- Lyons’ testimony during three times if everything gowe because before Gerry did ing arguments, observing that back, you’re going to you anything hold using about disclose the conversation yourself.” hurt dispose until he body his boat to of after Question: you prior “Did also him tell test.28 was threatened with lie detector him at that you in—did also tell going testimony in the keyA reference to this might that or be re- meeting he would summation is as follows: State’s quired polygraph to take test?” story, [Gerry] But he told his his testi- “Yes.” Answer: early April mony, Lyons to Dan as as that, he him of what did Having advised 1997, months house was raid- before his Lyons Then Mr. said this —he do then? puzzle only piece ed. And the he “Well, I said: I said a little bit more. said left had out to do with the defendant’s look, you everything have told me that somebody that if he could request killed just I happened, possible, it is but only piece he the boat. That’s the use know, possible that there don’t but it is piece on missing. get And we that when in which Tom may have been a situation Lyons, knowing 30th Dan October thinking killing you I’m about said to about to in and Gerry is come discuss just raised the issue before somebody or Government, his with tells [Ger- case holding that you of and if are June ry] complete tell truth. you must tell you just don’t want to back because possibility He with of threatens him me, painful you or me or it is tell says a lie taking detector test he you are protect your want brother truth, you you complete have to tell the mistake, if it hap- biga because making cannot hold back. yourself.29 are to hurt pened you going something I Dan you want to read from Remember, Dan trial court Lyons’ testimony. contends by permitting Lyons Gerry’s lawyer and he error committed reversible Gerry’s lie detector you “What did refer to asked Mr. Wharton: the State to examination of respect meeting during its direct specifically test tell— authorities, Lyons’ tes- Lyons. argues what did The State with the federal pur- limited for the timony was admissible you about whether could Gerry tell credibility 1/13/99, mony Gerry’s in its sum- later of at 66-69. Tr. 1/13/99, at 205-208. mation. Tr. of 1/13/99, also at 66-68. The State Tr. Lyons’ length impact of testi- discussed pose showing Gerry’s state mind in of a detector test may lie be admissible agreed that he incriminating disclose Lyons improper- evidence whether against only his after evidence brother his ly for the credibility Gerry’s vouched warned him lawyer that he would have to testifying capacity as his lie take a detector as a test condition attorney and an officer of court that plea agreement. theory, Under this Gerry possibility he had warned about the prove Gerry State did not seek to had of a he test. detector test; passed taken the lie detector Admissibility Lyons’ Reference to sought prove only instead State the Threat of a Lie Test Detector Gerry’s “triggering event”—that decision *34 to disclose the second “extortionist” con- rule, general As a and as the triggered versation the threat of a here, trial instructed court the results of lie test. detector polygraph any tests are “inadmissible purpose reliability because their scientific State also
The
asserts that
reference
Similarly,
has not been
to a
detector
established.”31
only
he
test raises a concern
impliedly polygraph
where the reference
evidence is
if it
directly or
never admissible
polygraph.
discloses
results of the
is
offered
establish that a witness’ ver
Clearly,
the results of a polygraph are
sion of the events is true.
rules
These
acknowledge,
inadmissible. Courts
howev-
legitimate
jurors
reflect a
concern that
will
er,
only logical
that “the
conclusion [the
polygraph
assume that
results of the
jurors] could
[the
deduce would be that
accept
are accurate and will therefore
passed
polygraph
witness]
test
thus
witness’
as the truth. Put dif
enabling him complete
bargain
plea
ferently,
potentially
concern is that a
State.”30
with the
unreliable
detector test will take the
place
jury in
Lyons’ testimony
assessing
raises
related is-
the credibili
two
(1)
ty
sues: whether a
to the threat
reference
of witnesses.32
State,
2786,
(1993),
Supr.,
v.
587
Brown
Ind.
N.E.2d
125
S.Ct.
L.Ed.2d 469
these
111,
(1992);
State,
strong suspicion
112-13
see also
courts have retained a
Guesfeird v.
653,
800,
(1984) ("Sim
See,
300
480
polygraph
e.g.,
Md.
A.2d
804
evidence.
States
United
v.
Cordoba,
Cir.,
225,
ply putting
jury
before the
the fact that a lie
9th
104 F.3d
227-28
(1997) ("With
equivalent
detector test was
holding,
taken can be the
not ex-
we are
results.”).
revealing
pressing
new enthusiasm for
of un-
admission
stipulated polygraph evidence.
inherent
The
State,
208,
Supr.,
v.
Del.
A.2d
Foraker
394
problematic nature of such evidence re-
(citations
omitted);
213
see Melvin v.
grave po-
[P]olygraph
mains ....
evidence has
State,
69,
(1992);
Supr.,
Del.
606 A.2d
71
interfering
tential for
with the deliberative
State,
1346,
Supr.,
v.
A.2d
Whalen
Del.
434
Cir.,
Posado,
process.”); United
5th
States v.
States,
(1981); Peyton
1354
v. United
D.C. Ct.
428,
(1995) ("[W]e do not
57 F.3d
431-34
65,
Nash,
(1998);
App.,
People
70
v.
polygraph
now
examinations are
hold that
93,
87,
(2000);
Mich.App.
244
625
91
N.W.2d
scientifically
always
they
valid or that
will
State,
Supr.,
see also Duonnolo v.
Del.
fact,
any
trier of
other
assist the
in this or
126,
(1978) ("Testimony
A.2d
that an
case.”).
individual
test,
polygraph
refused
accused
to take a
more,
impermissible
without
amounts to
32.See
No.
Holtzman v.
Holland, J.,
upon
(July
Amend-
comment
accused’s Fifth
The admission of testimony allowing relat- is harmless when ing to a threat of a polygraph test in this through prism totality viewed situation improper because it runs the judge’s light record and in risk that a juror reasonable could infer limiting instruction. the witness was lying before by Lyons Improper Vouching threat of a telling test but truth after- Lyons’ Capano also contends testi-
ward. judicial Given the of lie suspicion *36 improperly aas whole mony vouches detector taken prejudi- tests potentially and the credibility. This issue Gerry’s cial for involves testimony of nature the lie detector (1) above, questions: Lyons’ described the is two related whether question threshold improperly whether the testimony Gerry’s trial court attested to abused its discre- Piccinonna, Cir., Trial, 1120, Polygraph at Colum. L. Rev. In United v. 11th 73 States 1529, (1973)). (1989) (En Banc), 885 1141 F.2d 1536 the exceptions "per to the court found two se State, 221, Supr., Del. No. v. Holtzman Cf. (1) exclusionary parties where the rule”: 1997, Holland, 27, J., (July WL 666722 1998 agree (2) to its and where the evi- admission ¶ 1998) (ORDER), ("Although 14 Order dence impeach is “used to corroborate the or to the agreed to submit exami [the defendant] testimony of a and witness at trial” the evi- nation, presenting any of the absence evi conditions, including dence satisfies three the outcome could lead dence of a the favorable excep- balancing Rule The second 403 test. Id. jury to either that [the conclude defendant] acknowledges no implicitly tion that there is changed equiva 'polygraph mind or the his significant admitting poly- difference between favorable, lent’ test results had not been since graph prove evidence to that a confession forward."); prosecution the went State v. Ed voluntary admitting and prove the evidence to wards, (1980) Supr., Me. 986 credibility the aof witness. ("The jury naturally could have inferred reasonably that she had taken the test in Barbara, People 40. See v. Supr., Mich. 400 connection with her account of the events of Mich. (1977) N.W.2d 193-94 evening the and that the her result confirmed ("The fact is that the polygraph, while scienti- account.”). evidence, fic is different from other scientific quantity evidence. attempts State, '[T]he it to mea- Supr., 42. See Williamson v. Del. sure (1998) (”[W]e the truthfulness of a direct- witness is ... A.2d review for an ly related pro- to the concerning essence of the trial questions abuse of discretion ”) evidence.”). cess.’ (quoting Emergence admissibility Note. The of an express not and did Gerry vouch (2) used the State whether credibility and law- testimo- experienced veracity Gerry’s opinion an as credentials Lyons’ bol- prosecutor improper federal that former But cases are clear yer ny. testimony. Gerry’s directly ster testimony includes vouching indirectly or provides opinion on the outset, we note At the veracity particular of a witness.46 court testimony Lyons’ admitted based on impact “its upon the state of case, In the present Lyons testi
mind of Gerard Capano at the time (1) fied that he warned Gerry: made about ensuing Tom’s [about statement request (2) to use Nevertheless, possibility test; of a lie detector boat].”43 about it is clear that presented State Gerry’s obligation to “make full disclo testimony explain Gerry why did not sure”; (3) not to “hold anything back” disclose this until information after he be from prosecutors.47 the federal In our gan to negotiate an arrangement with view, points these three by Lyons, made prosecutors.44 Thus, the credibility of when taken together, created a substantial Gerry’s testimony issue, was at not his risk would conclude state mind at the time of his final disclo Lyons’ admonitions to Gerry induced him sure. to tell the truth to the prosecutors federal and hence to the jury. It implicit general rule,
As a witness Lyons’ testimony that may Lyons not bolster or vouch for the believed his credibility own another admonitions to witness have been testifying that effective. Thus, other telling testimony witness is is a the truth.45 subtle and indi State argues that the trial court rect version did not of vouching for Gerry’s credi err respect in this Lyons because did not bility. 11/16/98,
43. Tr.
(1987));
132. The trial
Trump
court
cf.
presumably
issued this
("
instruction
avoid
A.2d
prosecutor
'The
creating a direct connection between the
express
should
personal
his or her
belief
testimony
polygraph
Gerry’s
credibility
opinion
as to the
falsity
any
truth or
jurors.
the minds of the
guilt
or evidence or the
of the de-
*37
”) (quoting
fendant.’
ABAStandards for Crim-
conference,
44. During an office
the
judge
3-5.8(b) (3d ed.1993)).
§
inal Justice
Under
recognized
Gerry’s credibility
608(a).
that
was at is-
D.R.E.
"the credibility
aof witness
sue, observing that the defense intended to
may
supported
be attacked or
by evidence of
Gerry
argue that
fabricated the
reputation,
(1)
conversation
subject
but
to these limitations:
using
about
the
with Tom
boat and that the
may
only
The evidence
refer
to character for
explain
sought "to
epiphany”
State
untruthfulness,
last
(2)
truthfulness or
and
evi-
by
to the "threat
possible
reference
of a
poly-
dence of truthful
only
character is admissible
11/16/98,
graph.” Tr. of Office Conference of
after the character of the witness for truthful-
at 18.
ness has been attacked.”
Holtzman,
¶
(”[T]he
45. See
Order at
police
13
Wheat,
("The
46. See
expert
In Grave s vouch for Lyons to permitting we a con method State49 reversed viction partiecause in his Gerry’s truthfulness disclosures the for two lawyer prosecution con- There is thus a prosecutors. federal improperly vouched witissses for them. have may inferred took the cern that Befos witnesses stand, witnesses’, may have experience lawyer Lyons’ lawyer as a appeared witness for Gerry’s testimony the State was credi- he testified that believed had urged permit error it was Although ble. cooperate witnesses investigators that amount- in a testify manner Lyons 'tell the truth.”50 The lawyer also using compounded by testified vouching, ed to about extensively impressive Gerry’s credi- credentials to bolster credentials specific Lyons’ about md honors that Lyons’ admission of bility, de receivedas criminal fense lawyer.51 entirety in view of situation, th& this was harmless Court was concerned that the “re- lawyer’s evidence.
48.Lawyers ¡act serve as trial advocate attorney to testify often as for error witnesses other contest); contexts of estate will testify their behalf where appearance as lawyer-witness problematic. No. law But a Miller Hartnett, yer's appearance 2000) J., (Feb. as a witness proble WL 313484 be tan matic in at least where, (1) ("The two vouching instances: as (ORDER), at II 12 Order here, the lawyervouches indirectly wit directly credibility aof to the prosecutor as for the credibility of witness; another because special concern the State is ness where the lawyer is also an vouching advocate in interpret may easily jurors, same trial. See Delaware Lawyers’ Rules of endorsement official prosecutor as Professional *38 3.7(a) ("A Conduct Rule lawyer so, important overlook doing witness in shall not act as advocate a trial in which credibility.”). of the witness’ aspects the lawyer is likely to he a necessary witness where; except (1) the an testimony relates J., 1993, Walsh, 144, 1994 Supr., Del. No. 49. issue; uncontested (2) the testimony relates (ORDER). 1994) 1, (Aug. WL 416533 the nature and value of legal ren services dered case; in the (3) or disqualification of the (internal quotation ¶ Graves, 4 Order 50. lawyer would work substantial hardship on omitted). marks the client.”); Comment to of Delaware Rules Professional Conduct ("It Rule 3.7 be may not id. See clear whether a statement b[y] an advocate- witness should be as an taken as proof or ¶ analysis at 6. Id. of the proof.”); Matter the In of cf. Estate Waters, 1091, A.2d Supr., 647 Del. 11/16/98, 1096-98 (1994) at 64-65. 53. Tr. plain it was (holding that
597
C. Harmless Error Analysis
Gerry made to
lawyer
threat of
under
Lyons’
lie detector
Testimony
test and after
counseled
being
by the lawyer to tell the truth.
In deter-
Under
“well established” Dela mining the effect of this
im-
potentially
law,
ware
“[a]n error in admitting evidence
proper bolstering, we will consider the ex-
may be deemed ‘harmless’ when ‘the evi
tent to which the State’s
depends
case
dence exclusive of the improperly admitted
the witness’ testimony and the extent
evidence is sufficient
to sustain a convic which the credibility of
the witness is
’ ”54
tion ....
case,
we must
dispute.56
consider
the effect of the references to he detector
Although
place
we
emphasis on
tests and Lyons’ improper vouching testi
put
evidence
forward
the State, our
mony on the credibility of Gerry Capano’s
harmless error
jurisprudence
requires us
testimony. The prejudice involved here “is
to examine the entire record.57 Our deci
limited
potential
to the
might
sion in Van Arsdall
is an instructive illus
give undue credence”55 to the admissions
tration of the scope of the analysis.58 In
State,
54. Nelson
69,
v.
Supr.,
See,
Del.
628 A.2d
e.g.
77
State,
Kaminski v.
Supr., 63
Fla.
(1993) (quoting
State,
339,
State,
Johnson v.
Supr.,
(1953);
Del.
So.2d
340-41
v.
Sullivan
444,
(1991));
587 A.2d
Supr.,
632,
(1974),
451
Fla.
see also Seward
303
v.
So.2d
634-35
State,
denied,
365,
3226,
Supr.,
911,
Del.
cert.
373 & 27
428
49
n.
U.S.
96 S.Ct.
(1999)
State,
State,
(citing
(1976);
L.Ed.2d 1220
Supr.,
Sawyer
Gordon v.
also
v.
Del.
No.
see
105, 1997,
377,
C.J.,
Supr.,
(1993)
Del.
Veasey,
634
(stating
A.2d
1997 WL
380
812630
(Dec. 23, 1997).
("An
factors relevant
a review of
2
Order at
denial of
error in
mistrial).
motion for
admitting
only
evidence is harmless
when the
alone,
evidence,
properly admitted
is
taken
57. See Van
524
Arsdall v.
conviction.”)).
support
sufficient to
"Alter
3,
(1987).
A.2d
10-11
evidentiary
natively, when
error is of a
magnitude,
may
constitutional
the convictions
id. at
(noting
58. See
11
that "Van Arsdall
beyond
be sustained if the error
harmless
admitted at
himself
trial that he had returned
” Nelson,
that in 1. Effect of significance the of considering Testimony Gerry’s Credibility of the defen- testimony light tainted in admission, at dant’s on the stand Gerry made regarded State that the It is clear trial, scene, credibility the crime as presence as to his his key witness as a said the State argument, we closing stated: crucial. evidence piece of important “the most [T]he Court must consider reviewing em- also testimony.”62The State Gerry’s is both and the importance of the error the case” and “Gerry solves phasized presented strength of the other evidence Dan Gerry and it wasn’t that “[i]f at trial.... It is necessary to review the away got have might [Capano] Lyons, signifi- to determine the entire record “a as Gerry Capano refers with it.”63 Ultimately, cance of the error.... “the because witness” prosecution critical of the weigh significance Court must him had asked testimony that the un- strength against error if he available his boat would be whether guilt to determine tainted evidence impor- the most it was ever need should may have affected the error whether case on the issue of in the tant evidence judgment.59 premeditation.” “[a]ny harmless error We have noted Gerry a critical But fact that analysis case-specific, is a fact-intensive credibility pivotal is not witness whose enterprise.”60 analysis. the end of the harmless error undisputed It Gerry provided is place detec- One must the unfortunate lie important State with evidence from which tor vouching by Lyons reference and plan- began could infer that evidence, particularly the context all the her Fahey’s long murder before ning the other admissible corroborat- evidence her at disposed body and that he death ing Gerry’s testimony. Capano vigorously Gerry’s sea. contested earlier, As noted about Gerry testified credibility grounds, including: on several several issues. for our important Most (1) prose- plea federal agreement his (1) analysis, concerning: he testified (2)
cutors, expert testimo- drug use and (2) story” “extortion described below “confabulation” ny concerning of events It attempts Fahey’s to hide death. (3) users,61 drug Gerry’s conversation crucial to examine the extent to which his indicating with his that he mother would testimony on these two issues was corrobo- Tom. fabricate facts to incriminate rated or undisputed.64 Cir., Charley, illegal F.3d 1271 drags. persons, 10th the mind In these tries, (1999) ("Furthermore, there were three as by inserting gaps memory to fill testimony flatly pects Defendant's that were "things person that either the must thinks witnesses.”), de contradicted other cert. happened maybe per- have been what or nied, 528 U.S. 120 S.Ct. things happened son has heard that these or it (2000). L.Ed.2d 707 might suggested person have to the been 12/14/98, question.” even asked as a Tr. of at Arsdall, (citation 59. Van at 10-11 524 A.2d 116-17. omitted). State, 60. Dawson v. Supr., Del. 1/13/99, (State’s 62. Tr. of at Closing Argu- (1992); see also Barrow v. ment). A.2d 1245-46 (evaluating the record in the case and the 1/13/99, 207, 63. Tr. of theory case). State's Arsdall, 64. See Van A.2d at trial, 61. According confabula- peculiar tion describes a process mental persons engage heavy who use of alcohol *40 begin testimony concerning body disposal. We with the fact that most alone, not, testimony regarding testimony standing of the the immediate This does death, Capano actually Fahey show that killed cover-up Fahey’s including the it disposal cover-up, how. But does show and thus body, undisputed of her is either or corroborated.65 guilt. consciousness of Capano admitted to dumping Fahey’s body over the side of guilt” The “consciousness of evi Gerry’s boat.66 The events of that morning Thus, dence was not contested at trial. we by eyewitness are corroborated testimony on main Gerry’s must focus element of evidence, physical phone such as rec testimony disputed: that was the evidence receipts.67 gas ords and and, of planning specifically, more the al emphasized closing argu-
The State
in
leged conversations about extortionists.
Gerry
ment that when
came forward with According
Gerry,
approached
Thomas
cooler,
story
his
about the
it
a story
was
him in
February
and asked to borrow
cash.70
$8,000
prove
might
that he could not
Gerry
invite
testified that Tom’s
surfaced,
explanation
request
But the
this
that “a
finally
disbelief.
cooler
was
fisherman.68
Tom,
guy
having
by
girl”
“extorting”
been found at
were
sea
Thus,
hurt
ruin
vindicated,
“threatening to
his kids and
Gerry’s story was
and at
career.”71
Gerry
testified that he went to
trial the evidence of
happened
what had
bank,
check,
gave
cashed
Tom
disposing
body
of the
essentially
un-
money.72
disputed. As the
argued,
State
the cooler
“is the ultimate corroboration of Gerry
Gerry further related at trial that in a
Capano.”69 appears
It
to us that much of
conversation,
later
Tom said that he was
the importance
Gerry’s
ascribed to
testi-
scared that
guy
going
“the
to beat him
mony by
portion
the State is linked to this
him,”
up or hurt
and asked to borrow one
guns.73
testimony,
of his
only
for the reason that
Gerry’s
Tom later returned the
unused.74
Gerry
give
could
direct
concern-
gun
Finally, Gerry
testified that
ing
disposal
Fahey’s
body
if
Tom asked
he “could
if
use
boat”
State’s case. Tom
in the defense
“hurt
extortionists
his kids” and “he was to
them.”75
case corroborated the
Gerry’s
something
essence of
do
that,
12/2/98,
Capano’s
says
catego-
brief
"The final
68. Tr. of
at 121-24.
evidence,
ry
largely
undisputed
which was
1/13/99,
trial,
69. Tr. of
at 54.
by steps
defense at
related the
taken
by Capano
Fahey's
dispose
after
death to
11/9/98,
70. Tr. of
at 11-13.
physical
might
evidence that
link him to dis-
appearance.”
example, Gerry
For
testified
12, 21.
71. Id. at
Friday,
disposing
June
after
body,
helped
he went to
home and
72. Id. at 13.
dispose
him
of a bloodstained couch. Tr. of
11/9/98, at 54-56.
73. Id. at 16.
"I used the chain and
testified:
74. Id. at 19-20.
giv-
Gerry
attached the two anchors that
had
en
andme
then tilted the cooler so that Anne
75. Id. at 21. The first reference to the lie
12/29/98,
body
Marie's
came out.” Tr. of
happened just
Gerry
detector test
after
re-
Hanrahan,
(noting
110. See
The State used this as evi- all of the place just took extortion smokescreen disputes of planning. Capano dence Ger- truly Fahey beginning when was to dis- testimony points. ry’s on these The State’s Capano, tance from supplying herself a thinking was that was theory Thomas timely motive. Gerry’s dispose about boat using ahead to Fahey’s body, feeding Gerry story to The references lie detector tests tend- credibility ed-to the of the Gerry so that would bolster State’s about extortionists that was centered planning evidence on “legitimate” think there was a for reason Nevertheless, Gerry’s testimony. we find this to the According use boat.76 significant that there are factors the $8,000 theory, borrowing in cash State’s totality context of the of the -State’s case premeditated attempt support to the was the that militating against likelihood these story Capano at extortionist because had such improper references constituted sub- $125,000in checking account at all least his that prejudice Capano stantial to we $150,000 in February times and over should reverse the conviction sen- money.77 day the he the borrowed tence. jury The that argued State also the First, the Gerry’s testimony about extor- gun could infer that borrowed the Capano circumstantially corroborat- story tionist a premeditated step at that time as toward $8,0.00 ed. The fact that Thomas borrowed carrying out the murder.78 The ar- State February from 1996 is ad- Gerry early to the that Thomas later re- gued by bank mitted Thomas and established (and gun Gerry turned the to had MacIn- and admitted records offered the State purchase gun) tyre different because explanation Capano’s into own evidence.80 gun realized be Thomas would appears for strained and the transaction easily traceable him if after to recovered credibility strongly its was contested at it kill trial.81 Fahey.79According he used to the 1/13/99, (State’s tions, Closing by processing Tr. of dates on 76. at 29-30 as evidenced checks, Argument). Capano's contradicted trips asking he two bank before made 12/29/98, 77. Tr. of at 255-56. Instead, Gerry money. appears that he for it money Gerry or at received from before 1/13/99, (State’s Closing 78. Tr. at 51-52 at the bank. same time of his first transaction Argument). Id. at 247-51. This fact contradicts claim 52. Id. at trip to over a third "embarrassment” borrowing cash motive from bank was the for 12/29/98, (introduction 247-49 80. Tr. of at Gerry. State checks into evidence at exhibits Capano testified that he needed cash in 239). 238 and place Fahey; in order to “shock" first $25,000 giving would her a check for testified that borrowed despite that result the fact she achieve $150,000 notwithstanding having money, over $30,000 year. Id. at 256-258. earned about time, account at because in his he wanted assumption that cash was needed $25,000 Even on the give Fahey as part in cash of a Fahey, Capano pressed for an "shock” plan help therapy. her pay for Id. at 255- Gerry explanation why he went to rather gave withdrawing 56. The reason he for not bank, just money going to another branch of his "I had a cash than his own was that made $8,000 customary away one from branch. withdrawal for and then one for block $9,000, doing just stupid step and I felt that three dealt with Such a would have days professed going in a row at bank the same with the same embarrassment lady. why Gerry So that's I asked days three a row. Id. 251-52. same teller $8,000 cash.” Id. at pressed for ex- Additionally, planation with the mon- explanation of what he had done The State attacked this on sev- which, ey, according testimony, Fahey grounds. sequence eral of the transac- to his
Second, cash, witnesses, undisput- as with the it is both of these it is the one state- that accepted gun Gerry Lyons ed Thomas from Ger- from until ment that withheld ry.82 corroborating mitigates evidence threatened with a lie detector impact of the lie detector evidence on the lie detector reference Although test.87 credibility Gerry’s of testimony. Gerry credibility of certainly enhancing risks that him testified after Tom told about the Gerry’s testimony, all of this statement is extortionists, he went to his friend Jon directly specifically the one that is and to whether a “leg Burris ask he knew bolstered. The State confirms this clos- help breaker” who could his brother.83 Jon saying ing argument, with reference to gave testimony corroborating Gerry Burris this statement: point.84 on this [Gerry] story, testimony, But told his Lyons early April to Dan as as Another source of of corroboration Ger- ry’s testimony MacIntyre’s testimony months before his house was raided. puzzle Capano only piece that told her about extortionists as And the of the he left explanation why for he wanted her out had to do with the defendant’s re- purchase gun Additionally, quest somebody for him.85 Ma- that if he killed he could cIntyre’s purchase gun Capano of the only piece use the boat. That’s the miss- Gerry’s it corroborates because ing. get piece And we when on Capano leads to the inference that was not Lyons, knowing October 80th Dan passive recipient Gerry’s reluctant of Gerry is to come in and discuss about rather, gun; actively seeking gun he was Government, with the tells [Ger- his case by May All 1996. of this corroboration ry] complete truth. you must tell He greatly prejudicial impact reduces the of threatens him with the lie test detector the references to the he detector test. says you and he have to tell the com- truth, plete you cannot hold back.88 significant Gerry’s
Of concern is Thus, weigh impact we must of this “my statement brother said to me statement, light the rest State’s that if somebody my was to hurt kids evidence, that the mindful the credence them, I something had to do could we But, jury may it. have accorded use the boat.”86 Relatedly, this statement trial, context of this ten-week this state- directly is the one most bolstered both Gerry’s Lyons’ ment was harmless when measured references to the lie detector test. according against strength This is because of the total evidence 12/30/98, Gerry, pre- "threw ... face.” [his] Tr. of at tion in which inebriated and still credibility explanation occupied by suppos-
25. The of this the extortionists he had invented, also an edly pressed Capano gun issue focused on the State. Id. at to take a 28-29. protection. for his own 82. Capano reluctantly accept testified that he 11/10/98, 83. Tr. of at 63-64. gun Gerry. ed the in order to humor Id. at 235-237. He contended that he told never 12/12/98, Tr. of 107-08. Gerry money pay that he needed extortion story ists and that the extortionist was essen 11/18/98, 85. Tr. of at 75. tially product Gerry’s imagination. Tr. 12/30/98, According Capano, at 28-29. 11/9/98, 86. Tr. of at 88. loan, Capano Gerry Gerry when asked for the why inquired Capano money. needed the Tr. 11/16/98, 88-118, 12/29/98, 130-31. Tr. of Gerry "brought at 232-239. then extortion,” up the idea of dis which 1/13/99, (State's Closing Argu- by saying "yeah, yeah, yeah....” at 66 missed Id. 88. Tr. of ment). at 234. testified a later conversa- disposal her Fahey’s death and ment of reli- Capano, despite State’s
against Fahey sought body; and evidence Moreover, in subsec- it. we discuss ance on with Ca- her romantic involvement to end care- trial court’s instruction tion C-3 the person ear- dating another pano began purpose for which the lie limiting the fully inly admitted. references were detector First, heard evidence *43 Planning Evidence of 2. Untainted large, 162- Capano purchased very a that potentially identified the Having The State April 1996.92 quart cooler testimony, we portion Gerry’s of tainted Capano that made this evidence presented “the the extent to which next determine time approximately the same purchase at improperly ad evidence exclusive from to distance herself Fahey began that to sustain mitted evidence is sufficient Michael closer to Scanl him and to become therefore deter must conviction.”89 We on.93 whether, Gerry’s testimony excluding
mine
that,
Second,
at
heard evidence
jury
Gerry’s
Tom had asked to borrow
that
pur
Capano
early in
point
some
“do
in
that Tom had to
the event
boat
he used to
lock and chain that
chased the
extortionists, the State
something to” two
Fahey’s body.
containing
the cooler
secure
of
untainted evidence
presented sufficient
innocent ex
Capano presented
Although
for first
support
a conviction
planning
purchases, the State
for these
planations
theory, as
murder.90 The State’s
degree
in
explanations
attacked these
vigorously
was that
closing argument,
developed in its
testified
closing. Capano
rebuttal and
its
Gerry about ex
conversations with
Tom’s
that,
purchased a
January
he
around
beginning
merely
were
tortionists
neigh
of chain from
length
twelve-foot
Fahey.91
plan
to kill
the evolution of
to increase
hardware store
borhood
innocent
Capano offered
though
Even
during the winter.94
of his car tires
traction
instances, we con-
in some
explanations
that
it
closing
in
argued
its
The State
con-
jury could have
clude that a rational
pur
Capano
would make no sense
following evi-
Capano based on the
victed
chain, without
only twelve feet of
chase
(1) Capano’s
and motive:
planning
addition,
dence of
hooks,
In
purpose.95
for this
(2)
1996;
April
in
purchase
large
of a
cooler
the hard
testimony that
presented
State
chain that he
purchase of the lock and
had
Capano’s neighborhood
his
ware stores
(3)
pur-
eight
chain over
top;
“purchases
the cooler
his
used to secure
no record of
through June
MacIntyre
January of ’96
through Debby
long from
gun
chase of a
feet
28, 1996.”96
(4)
1996;
immediate conceal-
his
May
Anne
possibility that he would kill
A.2d
self for
Johnson
(internal
Fahey.”).
Marie
quotation marks omit-
ted).
1/13/99,
(State’s Closing).
at 13-14
91. Tr. of
acknowledged
closing,
its
the State
90. As
12/16/98,
(Tom
no direct evidence
Capano);
the State has
because
at 46-48
Tr. of
Fahey’s
O’Neill).
night
12/2/98,
(John
on the
actions
at
Tr. of
death,
Capano
prove
in-
State must
11/3/98,
34-35,
(Dr. Sullivan).
Fahey’s
proving
tentionally
death
caused
at
93. Tr. of
in advance.
Capano planned her death
65-66;
12/29/98,
1/13/99,
("I'm
12/22/98,
going to
Tr. of
at 13-14
Tr. of
Tr. of
exactly
today
you we know
and tell
at 102-04.
stand here
Fahey physically died
Marie
how Anne
1/13/99,
prove ...
at 74-75.
say
evening.
we did
we would
95. Tr.
What
February
starting
early as
at least as
is that
1/7/99, at 74-76.
steps
prepare him-
96. Tr.
took
1996 the defendant
Capano
purchased
immediately gave
handgun
testified that
also
that she
early
the lock
1996 because someone Capano
not to
seen it
and claims
have
into
country
had broken
his locker at his
transaction,
again.102From evidence of this
president
club and because the
had
club
jury
Capano sought
infer that
could
advising
pur-
issued a letter
members to
purchase
could
gun
not be traced
rebuttal,
locks for their
chase
lockers.97
part of
directly
again,
to him—-once
as
presented
from
State
sever-
plan
Fahey.
to kill
refuting
testimony.
al witnesses
These
Fourth,
presented
the State
sub
Capano’s country
witnesses testified that
that,
immediately
stantial evidence
after
did not
advising
club
issue a letter
mem-
died,
Fahey
death
concealed her
purchase
bers to
locks for their lockers.98
disposed
body
physi
of her
and other
evidence,
From the State’s
could
that,
cal
evidence.
testified
*44
reasonably
Capano purchased
infer that
p.m.,
about 11:35
after he abandoned his
the lock and chain at approximately the
attempts
Fahey
to revive
after the “acci
cooler,
purchased
same time as he
as
dent,” he retrieved the cooler from a
part
plan
Fahey
of his overall
to kill
and to
crawlspace
placed Fahey’s body
and
ins
dispose
body
of her
at sea.99
point,
ide.103 At this
he also retrieved a
Third,
MacIntyre
Deborah
testi
bottle of Clorox to remove the bloodstains
Capano
fied that
purchase
asked her to
on the
approximately
loveseat.104 Within
gun
April
for him in
approxi
1996—at
death,
twenty
Fahey’s
Capano
minutes of
mately the
Capano pur
same time that
Fahey’s nearby apartment
drove to
to
chased the cooler.100Although MacIntyre
phone
make a “star-69” call from her
and
purchase
was unable
gun
to
for him at
gift
to leave a
perishable groceri
and some
point,
that
Capano
she testified that
re
es.105
newed his
in
request May 1996.101After
cross-examination, Capano
On
conceded
MacIntyre agreed
request,
to this second
actions,
Capano drove her to a
that these
which were
within
gun shop and she
taken
purchased
death,
a handgun. MacIntyre
twenty
Fahey’s
testified
minutes of
were
12/22/98,
97. Tr.
handgun:
at 66.
bought
gun myself
"I
for
as
defense,
self
and because there were a lot of
1/7/99, 32, 38, 41,
98. Tr. of
at
46-48.
home,
young people my
got
in
I
nervous that
it,
might
away
someone
find
and I threw it
closing argument
emphasized
the State
11/18/98,
164-65,
the trash.” Tr. of
at
172. It
cooler,
lock,
purchases
that the
noting
MacIntyre
is worth
further testi-
key pieces
the chain were
of evidence that
Capano
fied that
"I
told her:
should tell them
Capano planned long before June
1996 to
police] that I saw it
at his
[the
[the cooler]
1/13/99,
Fahey.
kill
Tr. of
at 14-16.
house,
it,
and I commented about
and he told
bought
heme
had
it for his brother’s boat."
11/18/98,
100. Tr. of
at 73-74.
11/18/98,
Tr. of
at 173-74.
11/18/98, 77-79, 83-84,
101. Tr. of
at
90-91. It
12/21/98,
103. Tr. of
at 197-98.
noting
is worth
that Tom returned the hand-
gun
Gerry
he borrowed from
between one
12/22/98,
104. Tr. of
at 23.
and two months after he borrowed it in Feb-
11/9/98,
ruary or March of
Tr.
at
18-
12/21/98,
200;
12/22/98,
105. Tr. of
at
Tr. of
12/16/98,
(Gerry Capano);
Tr. of
at 66-67
20-22.
is an
"Star-69”
automated service of-
(Tom Capano).
by
telephone companies by
fered
local
which
date,
MacIntyre
February
also testified
a caller dials “*69” to receive the
time,
Capano prepared
story
incoming
a false
and the number of the
call
her
last
investigators
explain
purchase
telephone
tell
her
to the
number.
Gerry Capano
that Fa- Thomas and
returned to
designed
give
appearance
Fahey’s
Wilmington
disposing
from
Capano
hey
recently.106
had
at home
been
body
transported
had
sea —Thomas
Fahey
knew that
was not
testified
great
from his
room to a
stained loveseat
day,107
next
and thus
going to work the
dumpster
at a
site run
his
construction
co-workers would be un-
knew
her
brother,
Capano,
Louis
testi-
family.110His
disappearance until the fol-
aware of her
him
fied that Thomas asked
to have the
At
a.m. on
lowing Monday.
12:05
June
Monday, July
dumpster
emptied on
1996, approximately thirty minutes after
29, 1996,
than one
1996.111On June
less
death,
a call
Fahey’s
Capano also made
death,
placed
day
Fahey’s
after
Thomas
mail
at his
firm “to
system
the voice
law
rug
great
the stained
from his
room
that was home” because
create an alibi
I
dumpster
cleaning
various
materials into
the time
system
he knew that the
recorded
Jersey
owned
at a hotel
New
incoming
calls.108Thus
admits
Because
effec-
family’s business.112
immediately
decisively
acted
that he
physical
most of the
evi-
tively destroyed
Fahey’s
death
conceal his involvement
Fahey’s
connecting him with
death
dence
an alibi for himself. This
and to create
span,
relatively
in a
short
time
planning,
is consistent
admission
that his actions
reasonably
could
infer
that,
supports
it
a reasonable inference
plan
product
pre-arranged
of a
were the
*45
27, 1996, Capano
planned
had
before June
conceal her death.
Fahey’s death.109
Fifth,
presented
evi
the State
destroy
to
Similarly, Capano’s efforts
to
her ro
Fahey sought
dence that
end
physical
Fahey’s
of
death are
evidence
Capano
Janu
mantic involvement with
By about 5:00
planning.
consistent with
1996.113The State
ary
February
and
Capano
that
did
presented
also
evidence
p.m.
Saturday,
June
1996—after
12/30/98,
questioned by police.
Gerry was
at 20.
the event that
106. Tr. of
12/22/98, at 94.
Tr. of
12/21/98,
at 180-82.
Tr. of
11/13/98, at
Louis also testi-
111. Tr. of
14-19.
12/22/98,
42-43;
12/30/98,
108. Tr. of
at
Tr. of
something that could have
fied that he "saw
at 20.
dump-
one of the
a sofa or a chair” in
been
Hanrahan,
Accordingly, we
although
conclude
difficulties,
hey’s
including
emotional
her
totality of Gerry’s testimony
disorder,
was criti-
eating
Fahey’s relationship
case,
cal to the
portion
State’s
Capano, including descriptions
spe-
Ger- with
*46
ry’s testimony
Lyons’
that
during
relationship.119
was tainted
cific incidents
message
114. Email
Fahey
purposes Capano’s
of
from
For the
of
due
federal
2/14/96
issue,
Capano ("Tommy, you
process
Dowling v.
claim on this
see
scared me this week-
353-53,
States,
342,
end, starting
United
493 U.S.
110 S.Ct.
Friday
you
with
and all the calls
(1990) (asserting
We es two related issues. extent, whether, and what question not fit within certain of the statements do Fahey’s of both friends and statements hearsay exception for statements are under the psychotherapists admissible then-existing state of mind. the declarant’s 803(3). exception of D.R.E. state of mind of Rule on the elements This issue centers B, whether the Subsection we consider 803(3), provision excluding particularly the erroneous admission of statements under memory prove belief to “statement[s] exception Finally, was harmless error. Second, or believed.” the fact remembered C, separately, in Subsection we deal erroneously that the trial court argues whether alternatively, question of her fear of Fahey’s admitted statements psychotherapists of the is Capano the State’s case-in-chief be- during diagno- also admissible under the medical may present evidence cause the State exception sis or treatment of D.R.E. only the victim’s fear of the defendant 803(4). after the defense raises an issue rebuttal This issue making the evidence relevant.124 Supe alleging Claims that the 803(3) satisfied, and assumes that Rule is admitting rior Court erred in evidence are prejudice con- focuses on relevance subject to review this Court to deter and 403. cerns under Rules 401 mine whether the trial court abused its that the contested discretion.121 the trial court deter The State contends Where it is admissible because probative hearsay mines that the value of evidence evidence is, of mind —that “substantially Fahey’s reveals state outweighed is not relationship end her prejudice” why Fahey unfair under Rule wanted to danger of Capa- it because rebuts necessarily this Court’s review is def with —and they good ongo- had a in a no’s contention that judge erential because “the trial According to the ing relationship.125 unique position to evaluate balance supports hearsay evidence therefore probative prejudicial aspects theory for- infringe prosecution’s alleging evidence.”122Claims Fahey to kill because she protected right plan mulated a constitutionally ment of a to break off their relation- subject attempting are review in this was de novo ship. Court.123 *48 State, argued prosecution to the trial Supr., thus v. Del. 707 125.The
121. See Williamson
350,
(1998).
...
A.2d
354
"We would have to raise
court that
just
Fahey
walked off
would not have
Miss
State,
1004,
Supr.,
A.2d
v.
Del.
560
122. Smith
gone
or
gone
or
to Puerto Rico
to Mexico
(1989).
1007
things,
gone
These are
because
somewhere.
body
a
we have to establish
we do not have
123. See id.
them,
things
make
those
that also
and it is
argument
primarily on
Capano’s
relies
testimony.”
of mind
all of the state
relevant
Porter,
Super.,
v.
Del.
the rule set out in State
11/2/98,
Tr. of
at 155.
188,
(1990).
A.2d
193
587
State,
Agreeing
Superior
with the
the fact remembered or believed unless
execution, revocation,
it relates to the
hearsay testimony
Court admitted the
un-
identification, or terms of the defen-
803(3)
der D.R.E.
because the court
dant’s will.127
relationship
in the
change
viewed
be-
Fahey
tween
as relevant
to
“memory
The exclusion of statements of
and,
Fahey
motive to murder
or belief’ derives from the United States
consequently,
Supreme
theory
Shepard
to the State’s
of the
Court’s decision
States, in
United
which a witness testified
The trial
ease.
court thus concluded that
stated,
Shepard
the victim had
“Dr.
“[Fahey’s]
impor-
state of mind becomes
poisoned
[the defendant] has
me.”128The
hearsay
tant”126and that the
evidence was
Shepard Court held that this declaration
admissible evidence on that issue.
The
was not admissible under the state of mind
court was concerned with both the State’s
exception because it was a statement of
present
need to
a
theory
coherent
“memory.”129Specifically, the Court stated:
case and the fact
had raised
intention,
Declarations of
casting light
an
during opening
accident defense
state-
future,
upon the
sharply
have been
dis-
ments that the
needed to
State
rebut.
tinguished
of memory
from declarations
pointing
past.
backwards
There
Fahey’s
1. Whether
Statements
end,
that,
nearly
would
an
or
to the
be
Fall within the
State
against hearsay
rule
if the distinction
Exception
Mind
ignored.
were
803(3)
D.R.E.
provides
hearsay excep-
a
questioned
now
faced
tion for:
backward and not forward. This at least
A statement of the declarant’s then ex-
it
implications.
did
its most obvious
mind, emotion,
isting state of
sensation
important,
spoke
What is even more
it
(such
intent,
physical
condition
as
act,
that,
past
to a
an
more than
motive,
plan,
design,
feeling, pain
mental
act
speaker.
some one not the
Other
health),
and bodily
including
but not
any,
if it
tendency,
had
filament
of memory
prove
disentangled by jury.130
statement
or belief to
too fine to be
11/2/98,
States,
96,
Shepard
126. Tr. of
at 176-177.
128. See
v. United
290 U.S.
98,
22,
(1933);
54 S.Ct.
also
L.Ed.
see
3 Federal Rules of Evidence Manual 1656
127. This Court has established five
factors
(7th
1998) (referring
“Shepard
ed.
exclu-
applied
deciding
hearsay
be
whether a
sion,” citing Advisory
Committee notes
sufficiently trustworthy
statement is
to be ad
missible,
803(3)).
Fed. R. Evid.
The state of mind hear-
exception.
under the state of mind
say exception
State,
developed
in Mutual
Supr.,
See Derrickson v.
Del.
A.2d
Life
Hillmon,
285, 295-97,
(1974).
Ins. Co. v.
145 U.S.
Specifically,
the statement
(1892),
S.Ct.
609
D
“I
afraid of
am
Rule
he is a maniac”
and the text of
Following Shepard
“I am afraid
803(3),
me” or
that “I am afraid” is
he threatened
a statement
because
statement
fits within the
to kill me.”133
going
admissible. This
D
he is
of
because
exception,
justification
hearsay
for
perceptions or
simply
are
Such statements
perspec-
namely,
“unique
events,
the declarant’s
and their
victim has of
beliefs a
and emotions.”131
feelings
tive into his own
under the ratio
justified
is not
admission
that “I am afraid
Similarly, the statement
exception. There
the state of mind
nale for
admissible.132
generally
is
holding that such
authority
is substantial
ofD”
memory or belief are not
statements of
respect
is different with
to a
The case
803(3).134Thus, the
under Rule
“I am afraid of D because
admissible
statement
that
Brown,
("[I]n F.2d at 775-76
plan
133. See
490
ceased had a
to convince her husband
assault,
evicted,
T
the statement
am
being
she
trial for criminal
they
that
were
and that
(defendant)’
made
the victim
shortly
her
afraid of D
acted
before her death to further
self-
might
very relevant on the issue of
plan”
it was
"to show the
be
because
offered
However, the
T am afraid
plan
out
defense.
statement
existence of the deceased’s
to move
close to the
[military]
apartment
separate
of D—he beat me last week’ is so
base
husband”).
greater
at hand that there is a
ultimate issue
from her
danger
jury will
the statement
that the
misuse
Manual,
131. 3 Federal Rules of Evidence
su-
allegation of
truth to the
and assume some
pra, at 1656.
D.”).
part
past
on the
conduct
Fulminante,
See,
See,
e.g.,
Ariz.
e.g.,
State v.
193
v.
Tex. Crim.
Martinez
677,
485,
75,
(1999) (“But
(2000) ("Veronica’s
two of
App.,
[the
P.2d
88
17 S.W.3d
688
975
statements,
hearsay
'He’s
appellant
contested
victim’s]
statement that she was afraid of
going
existing
he’s
going
to kill me’ and 'I’m afraid
statement of the declarant’s then
mind,
me,’
report
state
directly
victim’s]
[the
state of
and therefore fell within the
kill
803(3)
Defendant’s future con
hearsay exception.”);
Rule
State v.
ment of belief about
73,
rule.”) (citations
O’Neal,
402,
87 Ohio St.3d
721 N.E.2d
duct and thus violate
569,
omitted);
(2000) ("[The
Phillips, 194 W.Va.
461
statements
State v.
victim’s]
84-85
that
75,
(1995) (“Even
feeling
if the declara
she was
stressed and was afraid of
S.E.2d
91
state of mind
appellant
prove
tions were relevant to show the
were relevant to
her intent
wife,
go
marriage.
the statements ...
much fur
end the
These statements were
af
properly
reveal details about extramarital
admitted as evidence under Evid. R.
ther and
Brown,
803(3).... ”);
latter statement is not reflective
State v.
Mo.
998
fairs. The
intentions,
531,
(1999) ("The
a fact remembered
S.W.2d
offered
future
but is
546
state
excep
specifically
testimony
afraid
and is
excluded from
[that
victim was
Hawn,
Dist.,
tion.”);
138 Ohio
State v.
2d
defendant]
victim’s]
to show
state of
[the
449,
594,
(2000) (not
601
regarding
App.3d
741 N.E.2d
[the
mind
her fears about
defen
admissibility
ing
is limited
to show the truth of the matter
that in Ohio
dant] and not
denied,
979,
asserted.”),
reflecting
"testimony ...
the state of mind
being
528 U.S.
cert.
victim,
431,
(1999).
underlying
not the reasons
“statement of
then existing
engaged
the declarant’s
no
in the conduct de-
or that Capano
controlling,
scribed
is a
anything
state of mind” would not include
jealous
Instead,
person.
argues
the State
the
“I am
but
assertion that
afraid.” The
that
testimony
prove
it offered the
that
why
reasons
she was afraid cannot be
Fahey believed that
things
these
were true
(i.e.,
as
characterized
assertions
“state
and,
result,
as a
wanted to end her rela-
ments”) of her state of mind.135
tionship
Capano.
The State therefore
argues
hearsay
The State
that
ev-
the
that
argues
testimony
Fahey’s
the
against Capano
idence admitted
never-
psychotherapists
friends and
does not fall
theless falls within the state of mind ex-
hearsay
within the definition of
because
that,
ception.
The
also argues
State
testimony
prove
the
was not offered to
stipulating to their admission before tri-
opinions
that
the events and
described
al, any hearsay objec-
waived
actually
were
true. Under the State’s theo-
respect
Fahey’s diary,
tions with
ry,
proffered
to the extent that the
testi-
emails,
Capano-Fahey
testimony by
(as
mony
prejudicial,
court
the trial
Kim Lynch-Horstmann. We address this
case)
court did in this
determine
must
fact, along with
argument
the State’s
testimony
whether the
is admissible under
appropriately
the trial court
limited
balancing
test of D.R.E. 408.
jury’s
consideration of the evidence
Although
plausibly interpret
one could
to “the
Fahey
state of mind of Miss
exception
state of mind
authorize
or about
time
alleged
when the
inci-
or
testimony
the admission of
of memories
occurred,”
part
dents
as
of the harmless
prov-
than
purpose
beliefs for some
other
analysis
error
below.
believed,136
ing the fact remembered or
State maintains
it did not offer
interpretation places
a difficult burden
prove
the contested
“fact
jury.
particular,
must
i.e.,
Capa-
remembered or
the declarant’s
confine its consideration of
believed” —
Liu,
198,
(1994);
Alston,
L.Ed.2d 343
United States v.
5th
136. See State v.
N.C.
461
341
Cir.,
449,
687,
(1992) ("Evidence
(1995) ("[A]
960 F.2d
452
victim's
S.E.2d
704
murder
.
Properly
falling
Liu’s fear
statements
the state of mind
was admitted.
excluded
within
fear.”);
highly
alleged
exception
hearsay
were the
rule are
rele
reasons for that
id.
to the
("If
vant to show
of the victim's rela
in the text
the status
reservation
rule is to
effect,
Contrary
tionship
to the
to the defendant....
any
have
it must be understood to
assertions,
long
defendant’s
we have
declined
narrowly limit those admissible statements to
omitted),
rule.”) (citation
to follow Brown’s strict
declarations of condition—'I'm scared’—and
1148,
denied,
116 S.Ct.
rt.
516 U.S.
not belief—I’m scared because Galkin threat
ce
1021,
(1996);
Stager,
State v.
me.")
Cohen,
611 hand, that these relia- assumes beliefs, the other including and memories memories focuses overcome and bility concerns are by the potentially of serious misconduct of the statement balancing the effects on defendant, per- of a to the limited issue jury. on the circum- mind. these son’s state of Under stances, it to make is difficult for of un range of the wide In view distinction, even when an abstract such unreliable, tested, out-of- potentially limit- by the trial court’s
properly defined
be admissible
court statements
would
ing instructions.137
of
interpretation
under the
broad
State’s
conclude
exception,
mind
we
the state of
reading
of the
practice,
broad
803(3)
the admission
that Rule
authorizes
exception proposed by the
state of mind
Fahey to her
hearsay
of
statements
heavily
balancing
on the
test of
State relies
reflecting
psychotherapists138
friends
that the defendant is
Rule 403 to ensure
(that is, her state
her fear of the defendant
unfairly prejudiced by testimony de-
mind),
the memories or beliefs
but not
declarant’s memories or be-
scribing the
giving rise to that fear.
Thus,
of unfair
danger
liefs.
where the
prejudice from the admission of these
analysis
above
Applying the
substantially outweighs the
statements
case,
Fahey’s
we conclude
present
statements, the trial
probative value of the
description
specific
involving
events
Ca
under
may
court
exclude the statements
reflect not
pano
opinion
and her
D.R.E. 403. This reliance on Rule 403
mind,”
her
but on
Fahey’s
on
“state
problem
it
presents
potential
because
ex
and memories of facts as she
beliefs
hearsay
with the more
replaces
limitations
psychot
to her friends and
pressed them
prejudice
lenient Rule 403
balance.
example,
For
Jill Morrison
herapists.139
hearsay
to exclude state-
designed
rule is
being
Fahey told her about
testified that
ments untested
cross-examination
they
while
garage by
locked in a
insufficiently
possible
are
reliable due to
found “ex
experience Fahey
argued,
memory, percep-
The narrative of
tremely frightening.”140
defects
the declarant’s
mind—it is a
is not a state of
veracity.
analysis,
tion or
The Rule 403
on this incident
wife,
Fahey's
admissibility of
state-
regarding the
dant’s motive to kill his
and it was
actually
psychotherapists under the med-
irrelevant whether defendant was
ments to her
affairs).
having
diagnosis
exception.
or treatment
ical
Brown,
("[I]n
F.2d at 777
extreme
137.
Cf.
("[T]he
Fulminante,
Where
jurisprudence, we find that
pursuant
“firmly
admitted
to a
rooted”
this established
above,
comports
virtually any
within [it]
noted
inadmissible under the state of
evidence
exception.
pro-
mind
We therefore assume that
with the substance
the constitutional
requirements
")
this evidence does not meet the
(quoting
Wright, 497 U.S.
tection.'
Idaho v.
of the Confrontation Clause. We address in
805, 817,
111 L.Ed.2d
110 S.Ct.
Subsection B whether the admission of this
Roberts,
56, 66,
448 U.S.
and Ohio v.
beyond
evidence was harmless
a reasonable
(1980)) (inter-
100 S.Ct.
176. The 185. Id. at 103. testimony. Horstmann *59 Capano testified that giving Fahey testimony was “a This is largely cumulative of hard time” staying stipulated about at the shore in a testimony described above. house staying. where other men would be The incident by stip- itself introduced According to her testimony, Fahey through Lynch-Horstmann’s “called ulation testi- say mony. me ... ... Capano just Capano had She testified that “tried to left they gifts had had a remove all of the huge fight given because he had Annie from her going apartment did not want her to the shore.... because he [Tjhis didn’t want fight watching another man ensued and she was too TV ex- her, that he given had trip seeing hausted to make this to the shore.”186 clothes— Annie wear the given clothes that he had We must examine the non-stipulated, er- her, so he removed things a lot of those roneously admitted hearsay testimony in apartment.”191 from her jury Thus the light of stipulated testimony this extensive knew that he away had and taken come fear, harassment, reflecting on themes gifts given he had her. obsession, Turning and control. to the first Capano argues psycholo that the categories the four of evidence not ad- gist testimony regarding gift incident pursuant mitted stipulation, Capano fo- significantly is damaging more than the prejudicial cuses on the effect of what is stipulated testimony depicts because it Ca incident,” known as gift “the which Capano pano acting violently breaking into — refers to as an “especially noteworthy” apartment, grabbing Fahey’s arm and instance of prejudicial evidence. According pushing her. This argument calls for a Johnson, to Dr. Capano came [Fahey’s] “to degree parsing that is not realistic in apartment quite night late at ... bolted similar, view of the extensive amount of for, the door kept my shut and her inside stipulated testimony. The depicts incident was, recollection three or four hours dur- angry, as controlling, and ulti her, ing which yelled time he threatened mately above, menacing. explained As expose their relationship.”187 Capano just is what jury through had heard many then “took of the gifts that he had Fahey’s entries, emails, diary given her apartment out of the and then Lynch-Horstmann. The had heard eventually returned them.”188Dr. Sullivan Fahey literally Capa “scared” of gave a similar account of this incident as no—“afraid fly he would off the handle reported to her Fahey. She added that again” had also heard about several —and Fahey told her that she was too “frozen” specific fights. Capano’s argument that the help, call for and that “grabbed “gift incident” truly stands out pushed her arm and against her from the numerous other accounts of his Morrison, wall.”189Jill Fahey’s another of relationship Fahey not convincing. friends, testified that night one “he came up escape the fire they fight had a categories three other of evidence gifts.”190 he took back the carry at issue preju- also minimal risk of 10/29/98, Lynch-Horstmann 186. Id. at 92-93. also relat- 187. Tr. of at 16. fighting, ed another instance of one that oc- 188. Id. trip expensive curred on a to an resort at the relationship, apparent- end of their which was 10/29/98, 189. Tr. of at 45. ly fighting. a "disaster” because of Id. at We assume from the overall context of 11/4/98, 190. Tr. of at 60-61. "fights” the record that these were verbal and 11/6/98, physical. 191. Tr. of at 97-98. *60 [Capano] upset be of they [w]ould are cumulative mails....
dice because him or wouldn’t that wouldn’t see she testimony. of stipulated The first these is point talk him. At one he threatened to “stalking” testimony. category in- This said he to suicide because he commit testimony of cludes the Siobhan Sullivan live her. So there was couldn’t without Fahey Capano, fucking that of “He’s said was lot on Annie because he pressure of testimony stalking me.”192It also includes pressure of was a lot saying—there Fahey’s example, from doctors. Dr. For I so saying my He was left wife Annie. “if Kaye [Capano] that was stalk- testified a lot together. there was we could be So her, emails, ing sending many her too about the e-mails.”196 his in front her home and parking car of above, Fahey’s Capano email to As noted it, there, him would not want she notice obsession, this stat- also theme reflected you expect flare-ups to ... then would see weekend, me this ing, “Tommy, you scared Capano disorder.”193 would eating you and all calls starting Friday with up unexpectedly, that she show so would you placed. really me out when It freaks at “appearing fear him times where she half hour....” every call public him in a ready greet wasn’t next of evidence Ca category The place.”194 would also “over He come pano on is Dr. Sullivan’s statement focuses in, uninvited, wanting get making house very told was con Fahey her “she a scene that he allowed in.”195 such was kidnapped” and she getting about cerned might it thought was who stalking testimony, exempli The stipu Again, light her.197 kidnap excerpts, fied the above is also cumula testimony, vague lated isolated stipulated testimony. Apart tive essentially cu kidnapping is discussion Capano’s from characterization of ac Through Fahey’s and harmless. mulative ie., tions, apart from the use of word emails, Lynch-Horstmann’s diary, the them, “stalking” testimony to describe this repeated heard testi testimony, paints simply picture the same of obses Fahey mony genu effect that to the by Lynch-Horst sion was testified to Moreover, inely Capano. frightened her following excerpt stip mann. from testimony been appears brief have ulated to make the suffices Sullivan, Dr. who Fahey by coaxed out point: her Fahey to muse about encouraged fears, He e-mail her all would at work way in a that lessens likelihood time, impact.198 they prejudicial were e- of kind of obsessive 11/4/98, Id. at 92-93. appearance threatened 192. Tr. of at 161. above, Gala, of a discussed the Grand 10/27/98, Tr. of at 41. 193. similar nature. 11/2/98, (Dr. Sullivan). Tr. of at 24 194. 10/29/98, at 36. Tr. of 10/29/98, Sullivan). (Dr. Tr. of at 32 Sullivan testified: Dr. 11/6/98, Similarly, Q: she 196. Tr. of at 98. testi- when you recall a time she started [D]o fied: you a fear violence speak about time, Well, any time? right Sep- from Mr. it was around that tember, believe, wife, [say] did was she Sullivan: What she that he did leave Dr. I very getting kid- angry about very did not want concerned [was] so he was that she napped. anymore point see at that in time. So him Q: getting you what did she tell about struggling he was And it was—she was because kidnapped? very saying left angry, and that he his wife Well, her friend together, she—she and their to be Dr. Sullivan: and now it was time vaguely, and talking about this point. had been pretty and he obsessive at *61 The final category of evidence involves that he needed to talk to her.”200 The “garage the by incident” testified stipulated testimony to Morri- also makes several son: significant and detañed references “furi- “exhausting]” ous” and
“Yes, fighting.201The ad- she told me of an incident where Fahey being ditional detañ of locked picked he had up her and took her back garage with cannot have affected to his house into garage and locked Capano’s the outcome of garage trial. The the doors and would not let her out of incident, as well as the other evidence the garage they while argued and he above, discussed essentially is cumulative attempts made to keep the relationship beyond and therefore harmless a reason- together. This was extremely frighten- able doubt. ing to Anne Marie because she had a being
fear of places, locked small dark Finally, we note that limiting in- and it very upsetting for her.”199 structions issued the trial court reduced any the risk that of would
Again, this testimony is akin to be basis for inferring guilt.202 stipulated testimony. Fahey’s diary, emails, Lynch-Horstmann’s testi We conclude that the trial court errone- mony portrayed Capano as a “controlling, ously admitted under the state of mind manipulative, insecure, jealous maniac.” exception hearsay testimony Fahey’s from garage The incident simply portrays the psychotherapists and friends concerning type of harassing permeated behavior that specific incidents and beliefs described stipulated testimony, such as “call[ing] But, Fahey. in view of the extensive and and leaving] maybe messages on her damaging hearsay evidence to which Capa- answering machine in period a two-hour trial, stipulated no we conclude that the time, telling [and that she had her] to talk erroneously admitted evidence was largely him, why back, wasn’t she him calling cumulative and that the trial court’s error said, she came into the 202.Following office so and so Kaye's testimony, Dr. the trial said, gosh, get kidnapped, I could what do jury court instructed the that: think, said, you Michele? And I What is this purpose of this evidence is to examine about, said, Well, my and she friend thinks state, the mental the emotional state of said, somebody kidnap could me. And I Fahey, you Anne are not—it in Marie Well, talk to me more about what this is way no any reflects as evidence of actions about. extremely I became distressed and any or state mind said, Oh, on behalf of defen- know, she somebody I don't could said, solely Fahey, dant. This deals with Miss just away something, take me or and I this, said, Well, Capano. with Who would do Mr. and she said, Well, 10/27/98, probably party. a third And I Tr. of at 136. In connection with Jill mean, you somebody what do would testimony, Morrison's the court also instruct- said, party? hire a third She Yeah. Who particular ed the that evidence of inci- said, Capano. conduct; would do that? Mr. Well, And I involving harassing dents anybody might is there else that do may by you offered or be considered that, thought long and she for a while and solely purpose determining for the maybe boyfriend said of three or four Fahey state mind-of Miss at or about the years ago. Id. at 36-37. alleged time when the acts occurred. You may proof not consider the evidence as 11/4/98, 199. Tr. of at 62. person, is a bad defendant and there- 11/6/98, 200. Tr. of (Lynch-Horst- at 97-98 fore, probably committed the offense mann). charged. which he is 11/4/98, Tr. of at 23-24. 10/28/98, 152-54; 11/6/98, 201. Tr. of Tr. of at 92-93. present symp- history, past or or cal beyond harmless reasonable sensations, inception or or or toms doubt.203 or ex- cause general character Fahey’s Admissibility Statements C. as rea- thereof insofar ternal causes Psychotherapists to Her Under sonably diagnosis pertinent *62 803(4) D.R.E. treatment. concerning now turn to the issue We Rule of language broad Relying the diagnosis exception the whether medical 803(4), type the of specifies which neither 803(4) made applies D.R.E. to statements the patient a must make person to whom purposes psychotherapy of distinct for applica- explicitly restricts nor statements —as made for of di- purposes from statements physical symptoms to exception tion of the physical Specifically, ailments. agnosing ailments, argues D.R.E. the State that or Capano argues 803(4) the trial errone- that court psychotherapists. applies to Fahey’s ously admitted from that Capano argues, among things, other psychotherapists recounting her state- exception the ren- reading a broad of such during to them the of Fa- ments course requirement that the meaningless the ders responds the hey’s therapy. The State that “reasonably pertinent to di- be statement terms, by applies exception, its to state- nearly ev- or treatment” because agnosis by patient psy- ments made licensed person experienced, that has erything fault, psychologists during including chiatrists and thera- statements of is relevant also psychoanalysis. Capano argues py- patients, psychotherapists do not treating As an we con holding, alternative “objective” of the depend on truth the Fahey’s psy clude that her statements to (that is, patients by made statements chotherapists independently are admissible of the the correlation between content diagnosis under the medical or treatment objective some notion of statements and 803(4).204 exception set forth D.R.E. sincerity with or on the reality), even ensure which the are made. To statements Application of the Medical im- exception diagnosis that the medical Diagnosis Exception types poses meaningful limitation on 803(4)provides: Rule hearsay that would be ad- of statements (4) purposes for medical Statements trial, that the missible at contends diagnosis treatment. or Statements only exception apply to statements should purposes diagno- made for diagnosis medical and treatment of relevant describing or medi- ailments.205 physical sis treatment LaLone, 353-53, rule.”); contemplated People v. Dowling, 110 203. See 493 U.S. 668; 24, 611, Chapman, U.S. 87 S.Ct. S.Ct. 386 N.W.2d 612-13 432 Mich. 437 (describing analysis (1989) harmless error psychotherapists’ (holding that testi- errors). federal constitutional diagnosis mony fall within medical does not exception because "statements made holding sense 204. This is alternative in the dis- psychological course of treatment that, question even if we did not reach the may always as those be as reliable orders 803(4), admissibility al- Rule we have under physi- of the treatment of made in course B the trial ready concluded in Subsection psychological ail- because cal disorders” and Fahey's court's decision to admit statements Barone, verify); v. are State ments difficult 803(3) memory or under belief Rule 852 S.W.2d Tenn. harmless error. (same); Supr., 539 So.2d Hall Miss. (1989) (refusing extend See, Zimmerman, 1342 n. 8 e.g., Idaho State v. diagnosis treat- (1992) ("A exception "beyond the psycholo- P.2d medical”) (superseded provide gist as ment matters does not 'medical' treatment The State counters statements admissible in a given case. While in some made during therapy likely are high- be cases statements patient of the made to ly reliable patients because have a strong professional in the psycho- course of motivation to be truthful in communicating diagnosis psychotherapy may be unreli- able, with psychotherapists to ensure an accu- inappropriately far-ranging, or undu- diagnosis rate appropriate prejudicial, treatment. ly they necessarily are not so. unfairly To the extent that prejudicial tes- appropriate To establish the timony may become admissible under foundation, proponent must show reading exception, broad the State satisfy two-part the statements relia maintains that such testimony may be ex- bility in United States developed test first cluded under the Rule 403 balancing test. v. Iron Shell.206 First, the declarant’s mo *63 argument This presents us with in making tive the statement must be con impression. an issue of first con purpose We have sistent with the promoting treatment, cluded that the better-reasoned view is and the declarant must be (a psychiatrist statements to either a aware that the diagnosis and treatment of medical doctor specializing and certified in depend her ailment on the accuracy of her psychodiagnosis Second, or psychotherapy) and a statements.207 doctors must rea (a psychologist pro trained and sonably rely certified on this sort of information in fessional—not a spe medical doctor—who diagnosis Finally, or treatment.208 the trial in psychodiagnosis psychothera cializes or judge must proper conduct a D.R.E. 403 py) may be admissible analysis under D.R.E. probative determine that the 803(4). value substantially by is not .outweighed danger prejudice. of unfair do general
We
not declare a
view
that such
always
statements will
even
safeguards
These
must be em
—or
usually
if
ployed
admissible. But
a firm foun
judge
the trial
ensure
—be
respect
dation with
qualifications
psychotherapist
admission of
is
a psychotherapist
proper
and the
profes
underlying
consistent with the rationale
established,
sional circumstances is
state
diagnosis exception:
per
medical
“[A]
professional
ments made to that
pa
seeking
unlikely
son
medical treatment
is
voluntarily
tient
submitting
diagnosis
her,
or
to lie to a doctor she wants to treat
undergoing mental health
may,
treatment
since it
inis
her best interest
to tell the
in
court,
the discretion of the trial
be
truth.”209 Limiting hearsay testimony in
803(4)
Erickson,
Cir.,
Mississippi
818,
209. Ring
amendment to
Rule
as not-
8th
983 F.2d
State,
(1993);
Robinson,
ed in Hall v.
Miss.
611 So.2d
820
see also State v.
153
915,
(1993)).
921-22
191,
801,
(1987) (admit
Ariz.
735 P.2d
ting testimony
psychologist
under Iron
Cir.,
77,
206. 8th
(ap-
F.2d
83-84
test);
Altgilbers, App.,
Shell
State v.
N.M.
803(4)
plying F.R.E.
to admit doctor’s testi-
(1990) (same);
786 P.2d
Felix v.
mony concerning the victim’s statements in a
109 Nev.
849 P.2d
249-50
case);
rape
child
see also United States v.
(1993) ("In proffering statements made to
Renville,
Cir.,
(1985).
8th
779 F.2d
psychiatrists
psychologists
purpose
or
for
diagnosis,
propo
of medical treatment or
Shell,
("[The
207. See Iron
In reviewing Capano’s claim offenses, on lesser though included even it a jury he entitled to instruction totally theory with inconsistent offenses, any on of these lesser included Fahey argument died Capa- after an the statute and the ease law require Second, Capano argues no. that there is a we determine whether “there is rational any basis or all three of rational for in the acquit basis evidence a verdict the jury lesser included offenses because ting charged the defendant of the offense “reject accept all part can or or of a convicting wit- defendant of the includ testimony, or all Capano’s part ed offense.”227 de ness’ or We review novo case, theory part claim State’s or all or that there a rational basis for requested the defense case.” Under reasoning, instructions.228We have con fill in “gaps” cluded that there is no rational is free to in the basis to support charge any evidence of the State’s case without any evidence order lesser included by Capa speculative offenses advanced construct scenario reck- no. negligent or homicide. State ar- less gues by “limiting to Ma- defense
A. Contentions the Parties accident, Capano cIntyre’s any ruled out argument that killed acci- Fahey either argument support of (that ground dentally we Although first he was to an otherwise.” do not entitled agree entirely argument, instruction on the with the lesser included offenses State’s *67 Capano’s because there was evidence to re we have concluded that tending testimo- killing) ny fute an intentional is that the jury, elements the included “[a] lesser evidence, Also, looking mutually all the could have offenses are exclusive. there 635; State, § Del. Supr., C. see C. also 11 Del. 227. Zebroski v. Del. A.2d recklessness). (1998) § 1(c)(defining 206(c)). 23 (quoting § 11 Del. C. 632(1). § 224. 11 Del. C. 82; State, See id. Zimmerman v. Del. cf. Supr., (applying 66-67 de 632(3). § 225. 11 Del. C. Superior review to denial novo Court’s 631; right” requested § on 226. 11 Del. C. see also 11 Del. C. instruction “claim of de- 2321(d) extortion). (defining negligence). § criminal to theft or fense landlord, tion, called the former furnish a the State in record to is no evidence recently the the less- evicted basis for elements of he had rational who testified that er included offenses. from residence.232 the defendant the
B. No Preclusion
the
three witnesses:
The defense offered
mother,
girl-
defendant’s
the
defendant’s
noted, the Delaware statu
As
friend,
Each testified
and the defendant.
expressly provides
te229
that
the
the
obligated
charge
jury
“at
mother’s
court is “not
was
his
that the defendant
respect
to an included offense unless
alleged arson and
the time of the
house at
a
in the evidence for
there is
rational basis
“The thrust of the defense
burglary.”233
of the
acquitting
a verdict
the defendant
the
was elsewhere.”234
was that
defendant
convicting
the defen
charged
offense
whether, notwith-
appeal
The issue
In cases
dant of the included offense.”
alibi
exculpatory
standing
defendant’s
rationally
a
disregard
a
could
where
defense,
entitled
a
defendant
exculpatory testimony,
defendant’s
acquitted
could be
jury instruction
preclude
the conviction
does
degree arson and convicted
of first
included
have concluded
offense. We
in
of arson
lesser included offense
case,
rationally
the jury
that in this
could
degree.235
second
Capano’s testimony
disregard all of
Fahey was shot as a result of
206(c),
in
we held Miller
Citing Section
gun
MacIntyre’s
grab
efforts to
from
exculpatory defense
the defendant’s
230Therefore, Capano’s exculpatory
hands
in the
preclude
charge
on arson
did not
pre
testimony cannot be the sole basis for
degree, and that based on
evi-
second
cluding lesser included offenses.
giv-
been
charge
dence the
should have
reasoning
supported by
This
our hold-
proposition that
en.236Miller stands for the
Miller,
ing in
v.
In
Miller
State.231
of a lesser included even
jury can convict
charged
in
defendant was
with arson
testimony, if believed
the defendant’s
when
degree
allegedly setting
first
for
for-
acquittal.
jury,
result
would
mer landlord’s residence on fire. The State
recently, in
we cited
More
Webb
witnesses,
two
called
each whom testi-
proposition that the rational
Miller for the
they
fied that
observed the defendant en-
applies even where the
“standard
basis
tering
through
the house
back window
any involvement
defendant denies
exiting
minutes later. Each witness
Miller,
But, in
unlike
offense.”237
charged
coming
also testified that he saw smoke
us,
some evi-
the case before
there was
shortly
from the house
thereafter.
addi-
206(c).
§
the defendant knew cir-
ment of whether
229. 11
C.
presence
which rendered
cumstances
(in
person
accomplice
not an
12/21/98,
another
230. Tr. of
at 191.
building)
possibility.” Id.
a reasonable
(1981).
231. Del.
dence from a Support which rational could The Evidence Here Does Not C. Charge infer the Lesser Included elements the lesser included Offense offenses. now We address contention put that based on evidence forward support preclusion In of its argument, is the State there a rational basis for ac- following the State cites the language from degree quittal of first murder and convic- v. Manchester State:238 of the tion lesser included offenses. The 206(c), applying Section this Court of the was theory State’s case has held that where the defense is com planned Fahey. intentionally killed Ca- plete charge innocence of first de pano argues that even if the State did not murder, gree only put there can be two forward “affirmative” evidence of reck- negligence, pur- lessness or the “evidence jury: guilty choices for the of first de reflecting portedly intent was de minimis gree murder or innocent. v. Dutton best, was, at and what little evidence there State, Supr., Del. 452 A.2d 146 equally was consistent with” the lesser in- (1982); State, Bailey Supr., Del. 521 enumerated cluded offenses above. (1987). 1069, 1093-94 A.2d argues jury reject accept that the “can or doWe not read or Manchester witness’s, part all or or testimony, of a all adopting cases it cites as a rule of case, theory part or of the or State’s preclusion automatic where defense is part all or defense case.” This is complete in innocence. As we observed abstract, correct in the but it begs the Manchester, “there no rational basis in question whether there some basis charge for a inferring gaps evidence on a lesser- the record for from the support the State’s some Similarly, included case evidence to offense.”239 Dutton any the elements of of the lesser included Bailey we held that the of a denial offenses. lesser included instruction was not error nothing
because “there is the record argues no State evidence was support jury which would under finding criminal presented of neg- recklessness ... particular instruction sought.”240 ligence, and that “the free to jury not These cases on rely analysis fact-sensitive infer a from state mind nonexistent not and do stand for a rule of automatic independent evidence.” Our review of the preclusion apart when the from accuracy at trial evidence confirms evidence— the exculpatory version of events offered the State’s is no evi- view. There such support the defendant —would convic permit dence. To to find ele- jury an tion of included offense.241 lesser ments included offenses on 134, 1986, (1984) Supr., Del. (holding No. WL A.2d 735 44962, Holland, (Oct. 19, 1987) (ORDER). J. manslaughter part could find based in testimony that the fact defendant's "own con Id. clusively killing”); establishes an intentional State, Supr., Ward v. Del. 1069, 1093; Bailey, A.2d also see ("In case, however, is no there Dutton, (finding support A.2d no concluding guilty basis for that Ward was requested in the record for lesser included only accept instruction). of a Ward’s lesser offense. To offense position, we would have conclude all testimony 241. When the defendant’s corrobo- (em false.") presented at trial was charged, rates element offense how- added). phasis ever, may preclude it of a lesser conviction included offense. See Ross v. *69 which under on the circumstances permit unguided specu- bearing would this record planning evi- If the Fahey died.243 State’s by jury. lation the defense are Capano’s accident dence and produced at that the evidence We hold Capano killed possible it that rejected, is a for provide not rational basis trial does jealous rage, or kind of Fahey in some the defendant of acquitting “a verdict act. But negligent or other reckless some the defen- charged convicting and offense speculative. only are possibilities these jury If the dant of the included offense.”242 any rational supported by They are not evidence, planning rejected the State’s in the evidence. basis example, for that the cooler concluding, jury a Capano contends that to Fa- purchases were unrelated gun Fa- Capano killed have decided that could a ac- hey, it could have returned verdict raged out of “an that hey argument after But, on the defendant. conviction quitting control,” suggest a that seems to theory pure spec- any theory require would other of the influence Capano that acted under by concerning the manner jury ulation is extreme emotional disturbance on Fahey’s a conviction Allowing death. possibility This guilty manslaughter. speculation inconsis- the basis of would be by supported to be by said the defense prior tent and our case statute romantic concerning the troubled evidence standard. requiring law a “rational basis” Fahey. relationship between Fahey killed possibility assuming evidentiary support Even reckless, by criminally an act that was theory, applicable Delaware stat this of ex- negligent, or under influence places ute the burden on the defendant en- treme emotional is based disturbance the influence of prove that he acted “under speculation. Although there is tirely “that emotional distress” and extreme Fahey’s disposal body, evidence explanation or excuse there is reasonable apart parties concede that from the of the extreme emotional for the existence Capano’s testi- accident defense offered Capano’s de Because none of distress.”244 concerning the is no evidence mony, there satisfying the burden directed fense was Fahey’s body death. manner of Her carry under he must Section any not murder recovered neither found “extreme emotional could not have Capano’s accident circums weapon. Putting mitigating aside as disturbance” defense, tance.245 gave eyewitness testimony no one State, degree as de- of murder the first Del. crime Zebroski v. (1998) 206(c)). § § to the crime of (quoting C. 636 of this title 11 Del. fined §by manslaughter as defined 632 of blood, spots 243. Small later determined to under The fact that the accused acted title. great Fahey’s, be were found in distress extreme emotional the influence of 12/1/98, Gerry Capano room. Tr. of by preponderance of the proved be must dispose helped Capano of a testified prove must further evidence. The accused 11/9/98, at 54-56. bloodstained sofa. Tr. preponderance of evidence that Fahey died after sustain- This is evidence explanation or excuse is a reasonable there bleed, ing injuries her to but does that caused emotional of the extreme for the existence any theory of provide basis for a reckless explana- reasonableness distress. The killing. negligent from the or excuse shall be determined tion person viewpoint of a reasonable provides § 244. 11 C. 641 that: Del. circumstances under the accused’s situation intentionally the accused The fact them be. as the accused believed person under caused the death of another Supr., 456 A.2d 245. See Moore distress of extreme emotional the influence circumstance, reducing mitigating is a
632
Capano cites the 1994 Connecticut case
the
a
“defendant’s claim of
‘sudden con-
speculative
put
frontation ...
too
to
support
argument
State v. Sivri246to
the
”250
sufficiently
dispute.’
issue of
intent
that,
the
because
State did not show how
Second,
precedent
Court’s
suggests
died,
Fahey
jury
the
could infer reckless
that we would
on
not follow Sivri
its facts
criminally
or
negligent acts. In Sivri the
and allow the
the same
jury
freedom to
.evidence showed that the victim
died
the
speculate
gaps
based on
the State’s
defendant’s home
sustaining
bloody
after
a
evidence.251
injury,
attempted
and that the defendant
to
the
conceal
death and flee the count
D.
Testimony
Accident
Not a Basis
ry.247
Reviewing
conviction of first de
Lesser Includeds
for
murder,
gree
that,
the Sivri Court held
ground
The second
which
on
Ca
although the evidence
support
would
a pano argues
jury
that he
to
was entitled
a
kill,
finding of
to
“permit
intent
it would
instruction on lesser included offenses is
jury
to infer that
a
there was also
based on his
there
alone
possibility
‘there
a
or
was
sudden
finding
rational basis in the
evidence
spontaneous incident
...
resulting
negligence. Capa
recklessness
criminal
”248
death’....
Noting
unintended
that “the no
“Debby
testified that
shot Anne Mar
evidence of intent
to kill was not over
ie.”252 He
MacIntyre
testified that
came
whelming,” the Sivri Court held that
into
great
room of
house
“proof on
...
where Fahey
sitting,
intent
was
and
were
sufficiently in
surprising
MacIntyre
them both.
en
dispute”
to warrant
instruction on lesser
raged,
pres
apparently
Fahey’s
because
included offenses.249
ence,
crying
yelling.
Then she
Sivri is distinguishable from this case.
kill
According
threatened to
herself.253
to
First,
case,
in this
unlike the situation in Capano,
coming
left
up
“the
arm was
and I
Sim,
planning.
there is evidence of
God,
thought,
my
oh
going
she’s
to shoot
distinguished
Sivri Court
itself
another
my
herself. And so I reached
out
prior
Connecticut case where
“evidence
right
grab
pull
hand to
her
left hand
planning
preparation”
of a
that,
away
gun
from herself. And as did
I
—rental
woodchipper
dispose
body
shot went off.”254
—made
Supr.,
Court,
246. Conn.
rejected
Conn.
A.2d
Supreme
the Connecticut
(1994).
that he was
to a lesser
of-
entitled
included
fense
on
instruction
the fact that the
“rel[ied]
247. The evidence in Sivri was that the victim
entirely
State’s evidence of intent was
circum-
gone
give
had
defendant’s home to
him
Crafts,
stantial.”
B.
Capano
Conversation with
MacIntyre,
exerted an influence on
but a
a
Shopa,
Tom
who was
friend of
jury
reasonably
close
could
infer from the testi
Capano,
on
testified
direct
mony
Capano attempted
examination
that
to control
Q.
you
279. See
Allen
And
say
response
what did
to him in
(1994).
will,
request,
you
physi-
to this
if
a
to have
relationship
cal
with her?
Conference,
280. Tr. of
Office
at 7-
,
11/18/98
IA.
said no. I
And
refused to.
I was
very upset by
shocked and
that. I didn’t
time,
express
reflecting
it at that
but
on it
Conference,
281. Tr. of
Office
at 21
1/7/99
night,
upset
very
that
I was
about that.
("Mr. Maurer: I don't think
need
we
a re-
Q.
any point
Now at
did Deborah MacIn-
peated
purpose
instruction on the
for which
tyre
you
relationship?
physical
ask
to have a
gun
put
into
evidence. I think that
No.A.
dynamic
changed
sort—that whole
has been
trial,
by
way
developed.
gave
the case
We
objected
283. At
defense counsel
Sho-
to
initially.”).
pa’s testimony
instruction
ground
on the
that it was irrel-
prove
evant because it does not tend to
12/1/98,
Shopa's
282. Tr. of
at 62-63.
testimo-
Capano
MacIntyre.
exercised control over
Tr.
ny proceeded as follows:
Conference,
at
Office
7-8.
12/1/98
Q.
[Capano] say anything
Did he
else in
11/18/98,
164-65,
284. Tr. of
regards Debby MacIntyre
at
172. MacIn
you?
to
to
tyre
Capano requested
also testified that
very, you
A. He
said was
if
will—He felt
investigators
pur
Capano
she tell
had
needy,
that she and he wanted
tome
her,
there,
chased the cooler for
Tr. of
his brother.
help
take care of
to kind of be
to
11/18/98,
her,
her,
at 173-74.
strong
to be
and—and—and
physical
also to—to have—have a
relation-
her,
11/19/98,
189-192,
sleep
ship with
with her.
285. Tr. of
212-225.
Capano’s direct exam-
controlling
personal
questioning
re-
because
MacIntyre by
her
relevant charac-
placed
ination
Shopa's tes-
lationships.
conclude that
We
dispute.
in
traits
ter
MacIntyre’s expla-
timony was material
not
therefore did
nation of events and
404(a)(1) expressly per
Rule
improper
constitute
character evidence.
of bad
evidence
prosecution
mits the
use
by
accused
exhibited
character traits
testimony does
Although the
of
pertinent
a
trait
“evidence of
rebut
Capano
light,
present
favorable
rule,
conjunc
This
fered
accused.”
not sub
probative value
the evidence is
405(a),288
extends to
tion with Rule
that the
stantially outweighed
the risk
prior bad acts
use of
State’s
that he is
from the evidence
will infer
The ques
his
evidence.
impeach
character
result,
person.286
bad
the trial court
As
whether the three
tion
becomes
therefore
admitting
did not abuse its discretion
are “pertinent”
traits
challenged character
his
Shopa’s account of
conversation
of Rule
meaning
within
to this case
Capano.
404(a).
the outset
emphasize
We
C. Cross-Examination of
necessarily has “wide
judge
that the trial
im-
that the State
also contends
permissible
on
use
ruling
discretion”
(1)
him
properly cross-examined
about
evidence dur
impeachment
of bad acts as
message
colleague
he sent to a
that includ-
Nevertheless,
ing cross-examination.289
remarks, (2) specific instances of
ed racist
“pertinent”
meaning of Rule
within the
be
misconduct,
sexual
net worth.
404(a),
questions
the cross-examination
The State’s
questions
cross-examination
conditions.
must meet one of three
*75
not
topics, Capano argues,
these
were
rele-
(1) indicate that
prior bad acts must either:
unfairly prejudicial
were
because
vant and
knowl
lacks sufficient
a character witness
they
negative
to make
encouraged the
an opinion
the
to render
edge of
defendant
(2)
his character under
character;290
inferences
about
indi
the
about
defendant’s
404(b).
contends that
lying
D.R.E.
The State
about
cate that
the defendant
(3)
case;291
404(a)287
is relevant to the
or
of
fact that
D.R.E.
authorizes these lines
their
about the basis of
286.
D.R.E.
character witnesses
See
testimony
the defendant's character
about
404(a) provides:
"Evidence of a
D.R.E.
Russo, 110
reputation);
States v.
United
person’s
or a
of his character
character
trait
948,
(1997) (permitting prosecution
F.3d
952
proving
purpose
the
is not admissible for
about
their
question
to
character witness
conformity
therewith on a
he acted
charges against
knowledge
the defen-
occasion,
(1)
particular
except:
Character
dant).
pertinent
Evidence of a
trait of his
accused.
accused,
by
the
character offered
State,
291. See,
Supr.,
Del.
e.g., Casalvera v.
prosecution
the
to rebut
same.”
(1980) (permitting
1373-74
405(a)
impeachment
permits the
288. D.R.E.
question
about unem
the State
defendant
to
"On cross
of admissible character evidence:
examination,
while
in Delaware
ployment benefits collected
inquiry is
into rele-
allowable
working
Jersey "to
New
was
defendant
specific
of conduct.”
vant
instances
only
that he
returned
impeach his assertion
victim”);
concern for the
Delaware out
his
State,
A.2d
Steigler v.
Del.
277
289. See
Supr., 402
A.2d
Britt v.
(1971),
grounds, vacated on other
question
(permitting State to
defendant
2872, 33
U.S.
92 S.Ct.
L.Ed.2d
fight
before arrest
with friend 12 hours
about
(1972).
la
that he
impeach defendant’s
States,
See,
e.g.,
"with a
Michelson v. United
friend's home
ter
to his
returned
469, 479,
unarmed”).
Applying analysis pres During to the Capa direct case, Capano repeatedly ent during testified direct no accepted asserted prejudiced”295 pay examination that he “wasn’t working public less in the sector than and that he was in his “discreet” romantic he would if have received he had worked *76 The responded Capano’s affairs.296 State a private response, for law firm.300In the testimony that he not “prejudiced” by presented was during State evidence its cross- him an questioning Capano’s about email he sent to examination that net indicating a that colleague person described a a in as worth 1993 exceeded five million doll funny.”297 “dot head” who Although “smelled To ars.301 the State’s eross-examina- See, 12/21/98, e.g., v. McAllister Tr. of 292. at 14. 295. 88, 1992, 278170, C.J., Veasey, No. 1993 WL 15, 1993) (ORDER), 8,¶ (July (per Order at 12/17/98, 296. Tr. of 34. at mitting question pri- State defendant about or convictions when he testified that he had 1/4/99, Tr. of at 32. 297. only previous been convicted of five crimes "demonstrably because his was 1/4/99, 298. Tr. of at 43-46. evidence”); false character United States v. cf. Cir., Beno, 582, (1963) (stat 2d 324 F.2d 588 1/4/99, 31, 299. Tr. of 43. ing finding impeachment the but rule that the improper). 12/16/98, 24-25, 26-27, 30-32, Tr. 300. Cir., 582, (1963). 293. 2d 324 F.2d 588 1/4/99, Id. 301. Tr. of at 47.
639 404, admission evi- of this Rule the prove not that his under tion was intended the false, not a violation of dence does constitute questions the State’s testimony was Capa- apparent purpose of Due Process Clause.304 undermined the ie., has testimony, that he no’s show character sacrificed some- good because for Recusal Motion VII. Denial of pub-
thing
accepting
pay
reduced
the
by
1999,
juris-
had
May
this Court
while
lic sector.
State’s cross-examination
had
matter
appeal,
of this
but the
diction
pay
require
cut
not
indicated
did
to de-
judge
for
trial
been remanded
Capano
significant
by
because
sacrifice
trial, Capa-
a new
cide
motion for
wealthy.
independently
Although
he was
Judge
William
requests
no made two
forbid the admission of
generally
courts
Judge
in view of
Lee recuse himself
Swain
net worth for consideration
defendant’s
candidacy
governor
possible
Lee’s
court did not
jury,302the trial
abuse
his
highlighting
articles
newspaper
various
by permitting
its
discretion
broad
Judge Lee
trial.
denied
role
top-
on this
State to cross-examine
parties,
to the
requests by
these
letters
during
ic
he described
direct ex-
because
ad-
“ability
impartially
his
stating that
amination the financial sacrifices he made
pending motions] has not been
[the
dress
public
to work
sector.303
impact
as-
affected
the trial’s
on other
20, 1999,
pects
August
life.” On
[his]
D. Due Process
Judge
filed.
formal motion for recusal was
Capano also
presents
argument
August
the recusal motion on
Lee denied
disputed
the admission
charac
24,
day,
opin-
1999. The next
he issued his
right
ter evidence violated
fair
new trial.
denying
ion
for a
motion
Clause. Be
under
Due Process
time,
Capa-
cause
that the
After several extensions
we have concluded
contest
appeal
ed evidence
admissible and relevant
brief
of his conviction'
no’s
815,
States,
People Hogan,
Dowling v.
U.S.
302. See
v.
31 Cal.3d
183 304.See
United
493
817,
93,
(1982),
Cal.Rptr.
342, 353-53,
668,
647 P.2d
116
over
110 S.Ct.
107 L.Ed.2d
grounds by
Cooper,
People
ruled
other
v.
(1990) (asserting
improper
admission
Cal.Rptr.
Cal.3d
demonstrates
issue
trial
pending,
new
a news article was
for
issues
factual inquiry, a remand on
published
the Wilmington News Journal
may
necessary.
discrete issues
be
If a
headline,
under
“Judge
William Swain
remand becomes necessary, we will ad-
Run
May
Lee
for Governor.”309
addi
dress these issues in the
all
context of
tion, Capano
newspaper report
cites
con
appeal.
other issues
on
On
other
taining
allegedly
statements
made
hand,
may
we
never have to reach the
Judge Lee indicating
Republicans
had
motion,
issues raised
depending
him
approached
during
aspects
the outcome of other
appeal.307
encourage him to
for
running
consider
governor.310
Capano’s argument
We now consider
appeal
the context of his
In suggesting
Judge
political
from his convic-
Lee’s
interest,
tion and sentence.
ambitions create
conflict of
Ca-
did,
fact,
Judge
resign
belief, proceed highly publicized be satisfied that can into participants pano brought all prejudice hear the cause free of bias or Lee Second, public spotlight, Judge fact that concerning if party. even Eldred, News, Capano Blun- Zee admits to May newspaper 312. Tom 1999. Statements in 2000) Delaware, (visited Feb. hearsay, der in cases their articles are and most <http://www.newszap.com/021500b.html>. accuracy Capano v. cannot be assumed. See X, (Hartnett, State, Los, 384- Supr., 595 A.2d v. Del. Los Flamm, dissenting); Judicial Dis- E. Richard (1991). (1996) (noting as a qualification in- general reports are considered rule media A.2d 314. See Jackson a dis- competent on which to base sources Los, (1996) (citing A.2d Los v. 752-53 motion). qualification 384). Bauers, judge’s From Sandy Trial run: id. 315. See Philadelphia Inquirer, capital?, to state bench 20, 2000, id. 316. See Feb. at B1. *79 obviously basis, We no ing “attending] political realized. see howev- gatherings.”319 er, extrapolate to reality appear- the or 7C “a judge the Canon states that not should engage any political other Judge activity ance that Lee was ex- unable act cept improve of on behalf measures to impartially all pertaining matters law, legal system or the administration guilt sentencing phase. There is noth- justice.” of ing in the record to suggest political that Lee Judge ability ambitions affected his Judiciary The Delaware Court preside impartially pro- over the entire judge has observed that “a should not have Moreover, ceedings in this case. as noted merely to resign to learn he a whether has ”320 17, 2000, opinion in our March we di- realistic chance election.... Any ex- parties identify
rected
and discuss
ploratory activity, however, must be done
judicial
“discrete instances
discretion
“in a manner
with
consistent
the Delaware
Lee,
Judge
may
exercise of which
have
Judges’ Code of Judicial Conduct.”321
(a)
ambitions;
by political
been motivated
Assuming
during Capa
that
(b)
influenced
outcome of the trial
sentencing, Judge
no’s trial or
Lee had
Capano’s prejudice.”317
our
In
view Ca-
conversations,
private
or
with one
more
pano
Thus,
not
has
satisfied this burden.
Republican
possible
leaders
a
concerning
himself,
Judge Lee’s refusal
to recuse
candidacy, such conversations did not vio
“supported by
subjective
belief that he
obligations
late his
under
7. Like
Canon
impartial”318
could be
not an
abuse of wise,
Judge
assuming
Lee was consid
discretion.
possible
ering
candidacy,
there is no
Judge
We
did
find
Lee
not violate
improperly
evidence that
did so
under
provisions
7 of the
Canon
Delaware Canon 7.
Code
of Judicial Conduct
Judges’ Code of
Canon
Judicial Conduct.
require judges
does not
to resign immedi
7A(2)
judge
states that a
“should not ...
upon
ately
conceiving
possibility
speeches
political
make
organization
for
for office.322
running
disqualify
Nor does it
or publicly
oppose
or candidate
endorse or
judges
assigned
who
been
have
to sensitive
7A(3)
for public
a candidate
well-publicized
office.” Canon
seeking polit
cases from
prohibits judges
par-
from
several forms of
ical
argument
office.323
ticipation
political
organizations,
Judge
improperly
includ-
Lee acted
in this case
State,
See,
require disqualification.
e.g.,
317.
v.
758 A.2d
held to
Ad
(2000).
(1990)
kins v.
600 So.2d
1061-63
(holding
proper
judge
that it was
for
Los,
318.
vestigate the matter further and denied conclude that testimony this not was credi (1) Capano’s motion for juror a new trial.332 ble: The did not mention the alleged conspiracy during his initial inter The trial court has broad dis with view the court or his 1999 letter to cretion to determine the extent to which (2) juror misrepresented the court the allegations juror misconduct warrant the content of first with his interview the investigation.333 further policy This has judge.336 Although trial allegations of im particular force where the defendant pressure proper jurors other are un impeach jury’s wishes to the verdict with doubtedly serious,337the trial court did not evidence of misconduct.334 its in declining abuse discretion to conduct case, In present the the trial a investigation post-trial further into the court elected not investigate further the allegations No. 5.338 Juror allegation that jury members of the con B. Juror No.
spired to have Juror No. 5 removed be
4
cause he was
acquit
inclined to
In
Capano.
separate
Juror No. 4
was involved
two
decision,
reaching this
the trial judge acted
incidents that
questions
raise some
about
within his broad discretion
because
First,
her impartiality.
juror
this
had a
found no credible
to suggest
evidence
that
Capano
concerning
conversation
the
case
the allegations warranted further
investi
juror
serving
on
trial.
another
Dur-
gation.
post-trial
testimony
The
of Juror
ing
judge,
an
the
interview with
trial
Juror
only
No. 5
the
tenor,
evidence misconduct
general
No. 4 revealed
if not
the
the
jurors.335 Moreover,
other
the trial
precise contents, of the conversation.339
court
had
interview,
sufficient basis on which to Based on
trial
judge
the
332. See
at *10.
id.
juror
emotions
to the
who wrote
court,
precisely
intra-jury
is
the kind of
influ-
State,
Massey
333. See
Supr.,
v.
Del.
A.2d
541
606(b)
prohibition
ence that the
in D.R.E.
1254,
(1988).
1257
designed
protect
inquiry....
We
from
find
judge
the trial
did not abuse his discretion in
606(b)).
334.
(citing
See id.
1256
D.R.E.
refusing
hearing
evidentiary
to hold an
as to
allegations
juror's
forth in the
letter
set
3,
Capano
also contends that
No.
Juror
trial.”).
refusing
grant
Capano
new
who was dismissed because she had been
State,
argues
holding
that the
v.
Fisher
Del.
trial,
drug possession
arrested
during
(1996),
Supr.,
supports
690 A.2d
suggested
jurors
Capa-
that
had determined
position
obligated
that the trial court
guilt
no
type
's
before
end of
trial. This
in-depth investigation
allega-
conduct
however,
allegation,
automatically
does not
Fisher,
juror
tions of
serious
misconduct.
investigation.
warrant
further
See
v.
Lovett
the Court remanded to the trial court for a
State,
(1986)
Supr.,
Del.
516 A.2d
474-75
hearing
possible
among jurors
on
racial bias
(holding
speculation
pressure
about
on
summarily”
after
trial court "denied
jury
guilty
to return a
verdict and “third
trial.
defendant’s motion for a new
Fisher
allegations”
hand
considered
presents
present
a different situation than the
require
facts not in
evidence do
further
Capano
case because the
trial court did not
verdict).
inquiry
jury’s
into the
Capano’s
deny
for a new trial "sum-
motion
*
marily.”
judge
Although the
conduct
did not
Capano,
336. See
outside the evidence in adduced court.347 properly The trial court could find that the incidents described above did not actu-
Similarly, although Juror ally prejudice Capano they and that did Fahey’s No. 4’s conversation with sister result, not completely jury’s was taint the verdict. As a we inappropriate during the trial, Capano course of the it not conclude that the court not did indi did abuse improper by declining cate an bias in favor its Fahey’s pursue discretion to fur- family. The conversation ther relatively investigations refusing was to grant brief did not concern the facts of the motion for a new trial on the jury’s or the Evidently, case verdict.348 basis of this misconduct.
trial court and defense counsel were satis State, The courts of this and the courts account, fied with the they agreed to many states, pains go great other permit Juror jury No. remain on the jurors any from insulate contact even re- penalty phase, waiving for thus Indeed, motely pending related to a case. presented.349 claim now it customary practice is in Delaware jurors juror identification badges wear
Finally, Juror No. 4’s comment
regrettable
It
from an
during
case.
is
“I
already
that
feel like I’ve
my
come to
juror
institutional perspective that
these
[sentencing]”
decision on
was not suffi
mishaps
Although
occurred in this case.
ciently prejudicial to warrant dismissal be
juror
contact between a
and the victim’s
cause
merely
she
indicated an inclination
not
(unspecified)
family
improper
per-
in one
and should
be
Although ju
direction.
mitted,
consistently
rors are
admonished not to
there is no indication that the con-
any
reach a decision on
versation
prejudicial Capano
issue before the
was
this
however,
presented
evidence,
trust,
parties
Superior
have
all
case.
We
that
permit
the trial court has discretion
adequate
a Court has
measures
instituted
4,
they thought
guilty
that the defendant was
348. Tr. of
Interview with Juror No.
1/26/99
excerpted
supra
talk"
"loose
and did not reflect a bias
at 5-7. See
note
defendant).
against
341.
4,
346. Tr.
Interview
with Juror No.
10/28/98
349. Tr. of
Interview with Juror No.
1/26/99
4, at 18.
at 13-14.
347.
Lovett v.
Styler,
Cf.
signs
cooperation
agreement with the
Supreme
ed States
held
Court
that “use
Government, right?
impeachment purposes
petitioners’
Yes,
silence,
A:
she does. I didn’t
the time of
hear the date
arrest and after
you
receiving
warnings,
said.
Miranda
violated the
Due Process Clause of the Fourteenth
27,1998?
Q: February
Amendment.” The prohibition
question
Yeah,
A:
I don’t
if
know that’s the date
ing
post-arrest
regarding
silence extends
signed.
she
I know that’s the date she
beyond a defendant’s exercise of his right
went in. For all I
signed
know she had
it
silence
the time of arrest to include
day
before.
pre-trial silence generally.362The rationale
Q:
kept
You
quiet at the
hearing
bail
Doyle
is that it is “fundamentally un
this,
preceded
which
right? There was a
fair” to use a defendant’s silence for im
hearing
bail
in February to decide
peachment
giving
after
Miranda warnings
you
stay
whether
would
in jail. You nev-
defendant,
assuring the
“at
implicitly,
least
it,
er said she did
right?
that his silence will not
against
be used
*85
A: I never testified.
him....”363
Q: But you never said
through
it
any
questioning excerpted
The
above does
means. You
your
never told
attorneys,
not run afoul of Doyle because it did not
you
anything?
never did
“impeach
exculpatory
story.”364 The
No,
A:
I
my
was true to
I
word. was
impeach
State used
silence to
protecting her.
him on a discrete
Capano
issue that
him-
Q: You
protecting
were
her. February
self had
raised
order to convince the
27th
signs
cooperation
she
a
agreement
jury
veracity
of his accident defense.
with the State?
That
meaning
discrete issue is the
of his
A: Yes.
letters to MacIntyre
they
and what
could
Q:
you’re
jail?
And
tell
jury
about
in January
his conduct
A: Yes.
and February 1998. This testimony raised
time,
like this
happened.
would have ever
generally
petitioner’s
If I had
or more
with
fail-
gun away
taken the damn
from her at some
ure to come forward with his version of
house.”)
point
just
and
confiscated it
any
from her
events at
time
trial ... crossed the
before
(testimony
line.”)
added);
Capano).
Doyle
of Tom
(emphasis
Hassine v.
Zimmerman,
Cir.,
941,
3d
160 F.3d
1/4/99,
(1998)
360. Tr. of
at 102-03.
(finding Doyle
ques-
violation where
silence).
general pre-trial
tions went to
610, 619,
2240,
361. 426 U.S.
96 S.Ct.
Weir,
603, 606,
L.Ed.2d 363. Fletcher v.
455 U.S.
(1982) (quoting
S.Ct.
As stated letters, sures, explain “protect” MacIn- direct examination all in order to “Now, as, questions what answering such two tyre.369It is thus inconceivable someone com- you by protecting did mean Capano’s failure references to isolated he In his direct pletely?”365 any preju- speak hearing caused at a bail they referenced the letters as methodically dice. in January of mind” related to his “state the State February 1998.366Therefore Brady X. No Violation his to raise the was entitled to use silence specific “state of mind” inference that judge trial Capano argues that the ie., protective one he claimed to have — certain required to disclose to defense MacIntyre not toward credible.367 —was Capa- Gerry relating sealed documents Therefore, no we find error. judge held an in drug usage. no’s assuming that Finally, even review, the trial camera review. After that violation, Doyle permitting there material was court that this determined plain is error. questioning isolated Ca- im- it constituted Brady material because pano’s pre-arrest following Fahey’s silence respect Gerry, evidence peachment death, persistent to conceal and his efforts specific in that it contained “information involvement, her death hide were his used episodes purchased Gerard when jury. central before the As issues drugs.”370 The trial court further found testified, remained about MacIn- silent material cumulative evidence “the tyre’s great fam involvement cost his and of which the de- of facts evidence career, ily and even his as “world was purchased already fense knows: Gerard collapsing.”368Capano’s effort at trial was on a large quantity drugs used this was because convince *86 finding, on this MacIntyre betray regular he loved not basis.”371 Based and would 12/29/98, also, 17, 54; 1998) (ORDER) Brady Maryland, e.g., (citing v. 365. Tr. at at of see id. 87, 1194, 83, 58. S.Ct. 10 L.Ed.2d 373 U.S. 83 (1963) (holding suppression by "the 215 that 12/29/98, 366. Tr. at of 34. to an prosecution the of evidence favorable request process upon violates due accused 404, Charles, v. 447 U.S. Anderson Cf. guilt to evidence is material either where the 408, 2180, (1980) 222 100 S.Ct. L.Ed.2d 65 Giglio punishment”) v. United to "Doyle (holding apply to cross- that does not 763, 153-54, States, 150, 92 31 405 U.S. S.Ct. inquires prior merely that into examination (1972) (holding that obli- statements”); the L.Ed.2d v. inconsistent United States Reveles, Cir., 678, (1999) Brady applies to mat- gation disclose under 5th 190 F.3d to (“When witness)); attempts credibility to a defendant convince of a ters to relevant spirit, Doyle jury cooperative State, was of a that he Supr., v. Del. see also Jackson prosecutors does tie the hands of who (2001) (discussing applying 515-17 presentation by pointing attempt to rebut Brady). cooperation.”). to a lack of appeal we have also examined In this 371. Id. 1/4/99, 368. Tr. at 102. by the examined the same material camera we to the same conclu judge, and come trial Id. sion. Capano, Super., No. Del. 97-11- State * Lee, J., (Sept. WL Questions taking Propriety During into account that the docu- XI. informant, Cross-Examination of protect ments were sealed to an the trial court excluded the information Capano argues that the im- State asked contained the documents. proper questions while cross-examining First,
him. that argues asked State Capano’s Brady claim of a questions prosecutor him that knew violation is merit. without We review for likely were to cause him invoke to abuse of discretion the decision of the tri Second, lawyer-client claim of privilege.376 case, al In Gerry Capano argues court.372 this was he that the State asked “so-called they lying’ “were length questions” unfairly cross-examined at and in detail placed position him having to history drug about his use.373 Other argue other witnesses had lied. We gave testimony Gerry’s witnesses about no arguments. find merit to either of these use, Tavani, drug Dr. testi including who Gerry’s per fied that it ability affected to category As the first reality. ceive The additional fact that Ger error, claimed Capano concedes no ry testifying pursuant plea to a objection was raised and that agreement, thereby avoiding prosecu plain apply therefore this must er Court drug-related charges, tion on was also be cross-examination, ror review.377 On Therefore, jury.374 fore it was not State tried to ma demonstrate abuse of trial judge discretion for the nipulation and MacIn- control Debbie end, on tyre. sought exclude this evidence that it To that basis State that, incarcerated, Capano establish while was cumulative. Because the evidence is lawyers fire her MacIntyre asked own cumulative, Capano Brady cannot show “a and hire a named Jack Willard lawyer ... by showing violation favor Capano.378 recommended reasonably able evidence could taken be put whole case such a different Apparently represented had Ca- Willard light to undermine as confidence in the pano point. at some It was in this connec- verdict.”375 tion that asked whether Wil- State, by judge proper subject 372. See Snowden v. A.2d not a of comment ("A may 1024 n. trial court’s denial or counsel. be drawn No inference defense, following of access to the cam- therefrom. an in (b) cases, inspection, proceedings be con- era is reviewed for abuse of discre- shall ducted, practicable, generally ap- tion and has been the extent so as to affirmed making peal.”); Lilly privilege *87 Supr., v. Del. facilitate of claims of 1055, (1994). knowledge jury. without of the 1059 (c) Upon request, any party against whom 11/9/98, 373. Tr. of at 143-86. jury might the draw an adverse inference privilege from claim of is entitled to an 5; 11/10/98, 4, at 374. Id. Tr. of at 91. may instruction that be drawn no inference therefrom. 419, 435, Kyles Whitley, 375. v. 514 U.S. 115 1555, (1995). S.Ct. 131 490 State, L.Ed.2d Supr., Wainwright 377. See v. 504 Del. 1096, (1986). A.2d 1100 Relief is warranted Capano argues questions 376. that these were complained clearly when "the error of so [is] improper 512 under Rule of the Delaware rights jeopard- prejudicial to as to substantial pro- Rules Rule Uniform of Evidence. 512 pro- integrity ize the fairness and vides that: Id. cess.” (a)The privilege, claim in of a whether the occasion, 1/4/99, present proceeding prior on or 378. Tr. of at 4-10.
651 attorneys. They did not he to his lawyer-client “lies” told privilege lard had asserted privi- lawyer-client in- him to Capano repeatedly require invoke on behalf. to information they since related lege had his attor- sisted that Willard not been purpose for of lawyers the Capano told Capano get time to MacIn- ney at the tried public.382There- making the information merely tyre to hire him. The State was not they improper. fore were Capano point on this attempting rebut in in- by showing that had fact Willard ques- of certain Capano complains next lawyer-client on of privilege voked behalf they lying as “were tions refers to Capano. No adverse inference was drawn proble- be questions may questions.” Such questions.379 from In this context the these that opinions matic for the reason about they questions improper were not because is invade the lying who is who not Capano-Wil- explore were intended to province jury383 for reason relationship. lard it “misleading it is and unfair to make requires that an con- appear acquittal Capano complains also another lying.”384 Some [a witness] clusion prosecutor group questions in which the courts, however, that “were have found Capano had to his asked whether he lied always are im- they lying” questions lawyers.380 concedes, Capano As these proper.385 questions related false information lawyers public he fed his for dissemination adopted a has not Delaware disappearance her following Fahey’s while ques general prohibition type on here, fate example, was still unknown. For Ca- at and we decline do so tions issue pano lawyers press questions caused his to issue a were not now.386In this case the describing release as “devastated” a new trial. improper and do not warrant instance, by disappearance Jeffrey she “hop[ing] Gerry’s neighbor her For Capano parked Stape will be found safe.”381 was asked testified that he saw were, effect, Gerry’s morning whether these in outside of home statements 512(a). disapproved 379. of assertions made See D.R.E. 386.We have closing argument prosecution relat- 1/4/99, 380. Tr. 166-83. ing credibility, especially to witness when they acquit the defen- imply that order Id. at 181. jury that another dant the would have find v. lied oath. See Fensterer witness had under 502(b) (limiting privilege 382. D.R.E. to confi- State, Supr., A.2d 1112 Del. communications). dential prosecu- (holding made that comments argument "improper closing were tor in Cir., Boyd, See United States v. D.C. they implied that "in unacceptable” because (1995) ("It F.3d is therefore error acquit ... defendant order to testify prosecutor for a to induce a witness to the officers lied under would have to find that witness, gov- particular that another oath”). Hughes v. Cf. stand.”). agent, lied on the ernment has (1981) ("In opinion, 'liar is our A.2d argument epithet sparingly to be used Casteneda-Perez, Wash.App. State jury.”); (holding id. that it 570-71 (1991). 78-79 810 P.2d prosecutor to improper label defendant’s *88 " ‘lies,’ “pre-trial statements as out-of-court Overlee, See, e.g., People 385. 236 A.D.2d must not be characterizations and that such 572, (1997) (explaining 666 N.Y.S.2d "(a) legitimate other, is a inference made unless that where contradict each that witnesses evidence, may from the which be drawn is and the contradiction not attributable (b) argument mistake, prosecutor relates his credibility it is contest results and specific tends to show that high- evidence which advocacy proper for a cross-examiner to lie.”). it). testimony is a light or statement Friday, June day throughout Fa- Capano the trial himself la- hey’s body disposed liars, was beled other of at sea. witnesses as Capano asserting, for example, that MacIntyre both was asked Ger- Stape whether had been “mis- ry had no credibility. For foregoing taken” when he Capano testified that reasons, the trial court’s allowing ques- glanced quickly away Stape when spotted complained tions appeal on was not him parked in front of Gerry’s home the error and does not warrant a new trial. day after alleged murder.387 ques- This tion perception was about more than credi- Opinions XII. Personal of Witnesses bility, any and in event related to a minor Capano’s as to Guilt fact. There certainly was nothing improper examination, On Fahey, direct Brian question. about this brother, victim’s testified that Fahey
Capano was asked whether he had family ever had against Capano filed a civil suit Fahey told either or because Lynch-Horst- they Kim “believed at the time that (a Tom Capano mann my murdered sister.”392He Fahey) friend of that one of his Capano also said that responsible “was for daughters needed brain surgery. Capano causing my family great deal pain, said that he had not. prosecutor then ”393 killing my Perillo, sister .... Nicholas “Kim said: Horstmann is confused. Anne a convicted Capa- felon who asserted that Fahey Marie lying to her psychiatrist. no had asked him to find someone to bur- you And are to be believed?”388 ques- This glarize home, MacIntyre’s read into evi- tion, however, Capano came just after had dence his prosecutors statement testified that the State’s contention was a “Jesus, I think the bastard killed her.”394 “lie” Lynch-Horstmann and that was “con- Capano object did not to these statements addition, fused.”389 In we note that at trial. appeal, On contends admis- question did not force to comment personal sion of opinions these as to Capa- directly Fahey’s rather, credibility; Ca- guilt plain no’s error. pano asserted in his answer that Fahey’s Neither of these jeop statements psychiatrist was not believable when she ardized right to a fair trial. It is recorded the information. Therefore this apparent Brian Fahey’s testimony from questioning improper. was not personal that he had no knowledge of what Finally, Capano was asked whether his sister, happened had to his Anne Marie. Joseph brother lying under oath when convict, Perillo was a virtue of his he stated that he Capano, had asked “Why snitch,” “jailhouse he was a you didn’t do something about the extor- use the phrase. opinions State’s These do tion?”390 answered saying “it’s not invite the kind of deference that risks possible mistake,”391 that he made a a re- depriving Capano right of the to have the sponse that demonstrates the harmless- jury make the ultimate determination of ness question. Finally, we note Therefore, guilt innocence.395 even 12/29/98, 387. Tr. of at 85-86. Id. at 240. 12/30/98,
388. Tr. of at 165-66. 10/26/98, 392. Tr. of at 105. State, Supr., 389. See v.Webb Del. 663 A.2d Id. (1995) (distinguishing type improper comment found under Fensterer 11/24/98, 394. Tr. of at 46. by prosecutor from statements made in re- sponse suggestion to defendant's own that a Powell v. lying). witness was Cf. (1987) (finding plain error where an *89 12/29/98, 390. Tr. of at 239. expert impugned credibility witness of the the
653 indicates, Rule Superior Criminal 43 assuming that admission of these state- Court however, present at trial right to be in con- the would have been error the ments present boundaries.400 For if there has definite they text in which were admitted only need note that Rule objection purposes, we timely by Capano’s had been 43(c)(3) that a counsel, not, fact, states defendant’s Capano preju- explicitly was required conference “[a]t not plain presence was not is diced their admission of law.” Simi upon question argument error. Smith,401 the States v. United larly, in Capano’s XIII. Absence from scope of a defen Third Circuit defined the
Office Conferences present at right proceedings to be dant’s to related trial: that he contends criminal present process at all Due mandates that a right denied his be opportunity have an to attend of the trial because he was absent defendant stages daily proceeding presence his has a any from the office conferences at which where substantial, ‘relation, presented reasonably evidentiary counsel and other legal opportunity his to defend judge matters to the trial for deci fullness of pres- charge.’ A against sion. Because failed to raise defendant’s objection process, due how- concerning at trial his absence ence a condition of ever, conferences, fair and plain only from office error ‘to the extent that a result, applies.396 just hearing of As a would be thwarted his standard review the issue is deemed waived unless the absence.’402 clearly prejudicial is “so error substan require 43 the de- Because Rule does tial rights jeopardize as to the fairness and at office conferences presence fendant’s process.”397 of integrity there legal issues and because concerning Capano’s conclude that ab- is no basis to A in a defendant criminal trial, fairness sence “thwarted” the of right present has a at trial case be Capano’s from the we find that absence on the right based Sixth Amendment did not violate his Sixth conferences confront one’s accusers and the common rights. Amendment law “privilege presence” during of trial.398 Delaware, Furthermore, right Capa- this has been enshrined because allege that he absent Superior Court Criminal Rule 43.399As no does not defendant, ment, every stage thereby invading province plea, at the time including impaneling jury, expert's particular and where the the trial verdict, and at the and the return was "crucial” and a "substantial sentence, case). except evidentiary imposition as otherwise prosecution’s factor” provided by this rule.” Supr. Capano argues R. 8. 396. See Ct. See, 43(b) (c) e.g., Super. Crim. R. 400. Ct. subject issue is de novo review — below, (describing the defen situations which appeal. As we describe claim presence presence or is not dant’s continued fails under either standard of review. required). State, Supr., A.2d Wainwright v. Del. Cir, (1999). State, 3d F.3d 290 (citing Dutton v. Del. (1982)). Supr., 452 A.2d (internal quota- Id. at 296 citations omitted) States v. (quoting United tion marks 398. Shaw 522, 526, S.Ct. Gagnon, 470 U.S. 609(1971). (1985); citing Fed.R.Crim.P. 84 L.Ed.2d 43(a) ("defendant present 43(a) be ... ev- provides: Required. shall "'Presence 399. Rule trial”)). stage present arraign- ery be at the The defendant shall
during the
and formal
“traditional
confron-
examine a prosecution witness about his
trial,”
stage
tation
he
extramarital affairs as a
must show
means to under-
Capano
that
mine an
that
prejudice
he
inference
arranged
suffered some
as a result
sleep
for the witness to
with
Capano
of his
Deborah Ma-
absence.403
has shown no
contrast,
cIntyre.405In
the court permitted
prejudice. Although Capano
such
was noti-
the defense to cross-examine Gerry Capa-
conferences,404
fied of the
pres-
office
he
no about his extramarital affairs to under-
ents no explanation for his failure to at-
credibility,406
mine his
per-
the court
consequence,
tend them. As a
we conclude
mitted
the State
Tom
cross-examine
Capano’s
that
from
absence
the confer-
Capano about incidents involving marital
Apart
ences was voluntary.
from a general
infidelity to rebut Tom’s assertion
suggestion
Capano
could have “con-
Decisions on
“discreet.”407
admissibili-
conferences,
tributed” to the
there is no
ty are reviewed under an abuse of discre-
argument
presence
would have
tion standard.408
affected the
outcome
the trial or that he
prejudiced.
was otherwise
Capano’s argument that the trial
court
inconsistently
ruled
on these issues
We
conclude that
absence from
First,
fails for two reasons.
the trial court
the office conferences did not violate his
prevent
did not
ques
defense counsel from
rights
constitutional
and that Capano can-
tioning
Brady
State’s witness Keith
about
not show that
prejudice
he suffered
as a
extramarital
To the contrary,
affairs.
result of his absence from the conferences.
permitted
court
defense counsel to ask
Adultery
XIV. Admission of
Evidence
Brady
you
not
have
in
“whether or
been
During Impeachment
relationships
volved in
adulterous
other
and how
order to
many”
impeach
Bra
Capano
contends
the trial court
did, however,
dy’s credibility.409The court
permitted
impeach
the State
defense
limit the extent which the
defense could
testimony
witnesses’
with evidence of mar-
describe the details
these affairs be
ital infidelity
permit
but
not
did
the de-
cause such
were not relevant
details
impeach
fense to
prose-
of a
Brady’s credibility.410
cution witness with
infidelity.
evidence of
For example, Capano argues
Second,
that the trial
although the court limited the
permit
court did not
Brady
the defense to
by prohibiting
cross-
cross-examination
State,
368, 1988,
1/4/99,
Supr.,
403. Bass v.
Del.
No.
407. Tr. of
at 43.
Horsey,
1989)
(April
WL
J.
(ORDER)
State,
(citing Dutton v.
Del. Supr.,
408. See
Floudiotis
(1982)) (distinguishing
trial to If the in the jury Superior nal Procedure of the Court: unanimously guilt phase renders a verdict sentence, court imposing Before murder, same guilty degree first ... shall judge jury will then turn to (C) personally Address the defendant separate At penalty phase hearing. if defendant wishes to and determine relat penalty phase, presented evidence is present any and to make a statement ing mitigating mitigation circums of the sen- aggravating information hearing, At of the tence.415 tances.412 the conclusion 4209(c)(2). 1/4/99, § C. Del.
411. Tr. of at 43. 32(a)(1)(C). 4209(c)(1). Compare Super § Ct. Crim. R. 412. 11 Del. C. Procedure Criminal Federal Rules sentence, 32(c)(3)(C) ("Before imposing 4209(c)(3). jury § 413. 11 Del. C. As person- instructed, ... the defendant court must address questions two answers to these its were, effect, ally defendant and determine whether the either a recommendation for present wishes to make statement penalty imprisonment. or See the death life mitigation of sen- any information Manley tence.”). (1998). 2n. statutory probation These and rule onment without benefit or are, face, provisions any on their parole broad and other reduction. But the openended in establishing the framework judge give must consider and substantial right belonging allocution to a weight to the recommendation of the *92 defendant the death facing penalty person imposing jury’s before sentence.417 The to ally the jury judge address the significant, and/or recommendation is there- penalty. before the determination of the It the of penalty phase fore conduct the hear- important is on to focus the fact that the must ing fairly. Accordingly, be conducted of right allocution does not involve sworn scope the nature and of right of the the testimony by the nor it defendant does personally jury defendant to in address the subject the defendant to cross-examina allocution one recently is we have ad- Dictionary tion. Black’s Law allo- defines apply dressed418and one we must now to as cution follows: this case.
allocution ... 1. A judge’s trial formal B. Exercise Capano’s His defendant, asking
address to a convicted of Right to Allocution speak him or mitigation her to in the of (cid:127) imposed. sentence to be This address Capano right elected his of allocution required is under R. P. Fed. Crim. 1999, 28, January day penal- the of last his 32(c)(3)(C). 2. An unsworn statement phase ty hearing. day, Capano On from a convicted defendant to sen- the by reading prepared intended to allocute a tencing judge jury or in which the defen- statement Before from the witness stand. can for mercy, explain dant ask his or began, informed the Capano’s counsel conduct, crime, apologize her for the or judge Capa- trial they had instructed 419 say anything else an effort to lessen no about law the of allocution (cid:127) impending the sentence. This state- counsel, however, the informed court subject ment is not to cross-examina- Capano the had not told them substance tion.416 began, his allocution.420Before limitations, law, judge imposed trial ob-
Under Delaware
without
jury
jection,
function of the
penalty phase
is
on the substance
allocution. Out-
solely advisory.
judge
jury’s
judge
It is the
presence,
who has the
side
the trial
ultimate responsibility
impose
explained Capano
a
either
allocution
impris-
death sentence
a
or
sentence
life
limited as follows:
1999).
(7th
Dictionary
416. Black's Law
75
jury
report
ed.
vides that
its
vote”
must
“final
"[wjhether
beyond a
on
the evidence shows
4209(d).
case,
§
417. 11 Del. C.
of at least 1
reasonable doubt
existence
judge
give
was advised that the trial
would
aggravating
its
Del. C.
circumstance....”
11
court,
weight.”
4209(c)(3).
“great
§
recommendation
stated,
As we have
“after
consider-
jury plays
“important
ing
jury,”
an
of the
must
role”
recommendation
State,
process,
Supr.,
"beyond
Shelton v.
Del.
652
least 1
find
reasonable doubt at
1,
(1995), acting
advisory
statutory aggravating
A.2d
5
ca-
Id.
"in
circumstance.”
”
4209(d)(1).
pacity
community.'
§
as the 'conscience of the
State,
329,
Wright
Supr.,
Del.
A.2d
335
633
Cohen,
State,
(1993) (quoting
Supr.,
Del.
Supr.,
State v.
418. Shelton v.
Del.
744 A.2d
denied,
(1992)).
(2000);
judge
A.2d
The "trial
is
cert.
488-503
U.S.
(2000).
sentencing authority,”
vested
ultimate
120 S.Ct.
Before exercise stantial to receive allocution, related right of the trial court ed allocution. benefits of jury, explaining these limitations the appeal on for first Capano raises possibility that man of facing “a who only the plain error review not time for capital punishment right has the ad- discussing on the evi- judge’s trial limits dispute jurors, judge, his his not to dress reaction but the trial court’s dence also the facts of the case or to comment on Capano into a discussion of when entered trial, to deal matters related to the but Capano example, certain evidence. For for appropriate with those areas that are pride daughters, his his discussing was you ques- in determining to consider of into a discussion what then veered lie of you.”423 tions that ahead daughters, of his he viewed as harassment Capano began by saying, his allocution told presumably He by State officials. “I’m not allowed talk about evi- They jury “my kids harassed. were dence, going next I thing and the point At this lied to and....” were evidence, say about the so I won’t.”424 interrupted Capano as follows: judge trial testimony, Again, point at a later in his he Mr. Please take The Court: done. We’re concerning to matter said with reference out of the courtroom. his “I’m allowed to talk daughters, back, I take it Your Can The Defendant: ”425Finally, at about that evidence .... Honor? allocution, said, are a end of “There Court: No. The I things say that wanted couple other relented, immediately how- they judge don’t The trial but better check make sure jury: ever, presence in the Maybe just stating any violate rules. one other.”426 at 64. 426. Id. 421. at 42-43. Id. 422. at Id. 42. undisputed estimate is that he State’s 427. The about 45 minutes. In spoke in allocution for
423. at 43-44. Id. fact, twenty spread over his allocution is hearing transcript. pages penalty 424. Id. 1/28/99, 48, 428. Tr. Id. at 58.
I my will let him continue. judge explain Sort blown The trial did not what he apart here rules and I’ll instruct the meant the term “consider that in any that, but the you way you next time make deem appropriate.” such a blatant attack on the rules that Then, in presence of the jury, the you’re operate forced under I will re- judge prosecution asked the “if the you. move There won’t taking be back State anything pres- [has] [it] wishfed] will anything. present You not be for the pur- ent in view of the from deviation rest of the trial.429 poses Following of allocution.” a sidebar Later, Capano began discussing when during pressed conference which the State relationship Fahey, the trial court for an instruction regarding sug- interrupted, saying: gestion stopped that he had been from matters, if Capano, you
Mr. any testifying have remarks about certain the Court remorse, expressions that deal with jury: stated the following to the pleas leniency, plans for hopes purpose of the sidebar was for me future, or your statements about own to reflect on certain statements good person, you some which have made were Mr. which may *94 made, please already I make them now. been misleading. Capano have Mr. elect- will any not tolerate deviance from these allocution, right ed the of which means conditions.430 and, he that could take the stand within the limitations which I indicated you, to stand, Capano When left the the trial speak subject and could not be to cross court delivered the following instruction to nothing per- examination. There was jury: the mit him or to—excuse me—there was jury, Members the I of as indicated be- nothing keep him taking from the allocution, Capano fore Mr. started his and testifying stand on broader issues in framework, it’s a very limited to narrow however, phase; penalty the had he done specifically permit- the defendant is not that, subjected he would have himself to any ted to rebut facts deny or to his cross examination. So when indicated guilt expression or to that con- voice there things that were that he could not tradicts evidentiary you the facts that about, right talk he was because allocu- heard trial. It is for solely the the limited, very tion is had a but different purpose acceptable expressions of re- chosen, form been those limitations morse, pleas for leniency, statements would have been the same.432 good person, about his for own and his plans for hopes and the future. To the C. The Sentencing Decision Capano spoke extent that Mr. those areas, valid it you jury should consider his The returned its recommendations testimony. January To the extent violated that he Eleven of the 12 1999.433 allocution, the jurors terms of the he was the statutory which found existence the specifically prior informed of to taking aggravating circumstance that “the mur- stand, the you premeditated should that in the consider der was and result of any way you appropriate.431 juror deem one planning,” substantial while did Capano Id. at 59-60. ended his allocution Id. at 68-69. by sorry saying I "I'm if broke the rules.” Id. at 65. Capano, Super., State 433. See No. Lee., (March 1999) IN97-11-0720. J. Id. at 62-63. (Mem. Op.), Op. Mem. at 1. 431. Id. at 66. re- impermissibly he was argues He that jury aggravating that
not. The found the remorse, pleas “expressions stricted to mitigating outweighed circumstances own about leniency, [his] for statements ones, by vote of and recommended plans and and person and imposed. good be character penalty 2 that the death addition, Capano Capano to death on the future.” hopes trial court sentenced for finding judge that trial erred on its that March based contends proved beyond during a reasonable allocution interrupting the State him aggravating circum- statutory jury doubt the in front of the for admonishing him premeditated Capano had scope stance of the allocution exceeding substantially planned Fahey’s murder.434 they could by commenting to the The trial court also found that State scope exceeding the view proved by had reliable evi- substantial and way appropriate.” “in ... any allocution non-statutory existence of six dence the judge trial Capano argues that the Finally, circumstances, and that aggravating during sentencing by considering erred outweighed aggravating circumstances ruling on the fact violated his that also ex- mitigating five circumstances in impos- as factor scope the allocution isted.435 ing the death sentence. nonstatutory aggravating cir- One of contends court cumstances found scope review Court’s standard authority.”436 for defendant’s “disdain Despite de novo. his failure should be The trial court stated that “it also is note- object, Capano that his resistance asserts
worthy many that defendant breached attempt right to limit his judge’s to the imposed during pro- rules the these Court calls a less deferential stan allocution *95 Court, ceedings. directly, The through and plain Regard dard review than error. of counsel, set on numerous occasions forth standard, Capano less the contends of expected rules it him to defendant which this should review his claim because Court follow, consistently to and defendant vio- is “arguably the to allocution a ‘sub right openly lated those rules. He defies authori- capital right’ stantial of defendant.”439 ty.”437In remarks the accompanying hand- scope The the standard and contends State sentence, the trial ing down of the court plain agree that of is error. We review spite noted that in the of of limits allocu- of plain scope is the standard and error tion, had to “specifically refused review. remorse, mercy, ask for no and showed is The issue we consider of continued his attack on the the decision judge plain the trial committed whether jury disloyalty the of those who testi- [and] ”438 Capano’s on allocu in his limitations error against fied him.... tion, Capano’s reactions to judge’s in the Capano’s D. Contentions evidence, made in the attempts to discuss in jury’s judge’s and direct Capano argues presence, that his death sentence jury. to the The State conceded judge set the trial statements should be aside because in scope argument at oral this Court improperly of his allocu- limited limitations on allocution were penalty phase judge’s his trial. trial during tion 5/16/99, 438. at 7. Tr. of 434. Id. at 16.
435. Id. at 21. Supr., 744 A.2d Shelton v. See (2000). n. 142 Id. at 437.Id. at 11.
erroneously and that proceed- restricted the court’s control over most these difficult ings comments did” moved trial “probably jury’s expedi- affect the forward tiously. Nevertheless, toward Capano.440 attitude it proper
was any for the to consider likely Our task is to assess the effect of violations courtroom rules as a nonstat- judge’s the trial on statements the fairness utory in aggravating factor its recommen- integrity Capano’s penalty phase. dation.441The issue that concerns us here Our review of record convinces us that likely is the effect the jury on of the trial totality trial judge’s handling judge’s reactions to those “violations.” prejudice unfairly the allocution did not Capano. “duty
We are mindful of the trial judge’s
to act instantly
disrespectful
to control
E.
Jurisprudence
The Shelton
obstructionist tactics in the courtroom.”442
25, 1999,
June
On
while
direct
A
judge
trial
has “broad latitude” to take
appeal
pending,
was
we
this Court
re
“preserve
measures
order and appropri-
opinion
in
leased
Shelton
State.446In
judicial
ate conduct in
proceedings.”443In
Shelton, the
defendant
instructed
case,
judge’s
trial
at sen-
remarks
the trial
that he could not use
judge
tencing
sentencing opinion
reflect
allocution to “talk about
the facts sur
that he found
continually
be a
trial
rounding the murder.”447 The
court
disruptive and unruly presence.444
to “ask
instead limited Shelton’s allocution
judge
trial
a unique vantage
has
ing
authority
give
...
sentencing
point, and we do not undertake to second-
case,
you mercy, spare your life in this
guess his
We
recog-
assessment.
further
you
acquiesced
sentence
to life.” Shelton
challenge
nize that the
a diffi-
managing
want
that limitation
he did not
because
magnified
cult
litigant
of a
context
any
Speaking
discuss the
event.
facts
capital
subject
lengthy
pub-
to intense
allocution,
briefly in
did not
Shelton
dis
scrutiny.445
lic
began
The trial
this case
any
cuss
Shelton
sen
evidence.448
January
October
1998 and ended on
degree
tenced
death for first
murder
17, 1999, period
nearly
three months.
and his
death sentence was affirmed
*96
judge
The trial
and
firmly
ably maintained
Court
appeal.449
on direct
24,
440.
Argument
Tr. October
2000 Oral
in
lie interest in
cases intensifies the
notorious
Court,
Supreme
the
difficulty”
"maintaining
at 30.
appearance
trial,
ensuring
impartiality,
a fair
and main-
4209(c).
§
441.
11
See Del. C.
courtroom”).
taining control of the
State,
1004,
Supr.,
442.
v.
Smith
Del.
560 A.2d
(2000),
Supr.,
446. Del.
A.2d 465
cert.
744
(1989).
1009
denied,
2225,
530
120
147
U.S.
S.Ct.
1008, 1009;
(2000).
443.
reargument
Id.
see also State v. Benne
256
A
L.Ed.2d
motion for
field,
Supr,
Del.
567 A.2d
by
In connec
was filed and denied
this Court.
(discussing
obligation
motion,
trial court’s
to ensure
we
tion
the denial of the
re
arguments
improper);
that final
are not
Dut
State,
opinion.
See
v.
leased revised
Shelton
State,
Supr.,
ton v.
Del.
(Jan. 5, 2000).
Supr.,
Del.
A.2d
(1982) (finding no
in
judge's
error
re
sponse to what he viewed as a breach of
Id. at
490.
required professional etiquette).
448. Id.
supra
444. See
note 437.
(Na-
Managing
Outten
A.2d 1291
See
Notorious Trials 17
Courts) (2d.
(1994),
denied,
1998)
tional
For
cert.
515 U.S.
115 S.Ct.
Center
State
ed.
(1995).
pub-
(stating that "the
existence media and
In his
motion
that the
other
argued
comparison
for the first time
in
to
culpability
duced
Shelton
pres-
to
infringed
right
defendants,
identity,
had
his
trial court
mistake
mistaken
jury in allo-
evidence to the
mitigating
ent
or
other
finding guilt
any
by
jury
right
argued that this
cution. Shelton
reason.453
Superior Court Criminal
under
guaranteed
Thus,
defen-
holding allows a
the Shelton
Eighth
as
as the
Four-
Rule 32 well
already
in allocution facts
dant to discuss
States
Amendments
United
teenth
evidence,
that the defen-
requires
but
Shelton,
According
his
to
Constitution.
subject
to cross-exami-
dant be “sworn
ineffective assistance
had rendered
counsel
new
a “statement of
making
nation” before
object
the limitations
by failing to
that this limita-
We indicated
evidence.”454
on
allocution.450
placed
new
presentation
tion on the
evidence
Despite
clear assent
Shelton’s
important pur-
achieved a balance of
allocution,
reached
placed
limits
we
allocution,
poses
by
considerations
served
plain
claim
error
merits of his
under
as
toward
defendant as well
of fairness
of review.451We concluded that
standard
truth-seeking function of
the State and the
placed on
allocu-
the limitations
Shelton’s
the jury.455
scope
the full
of allocu-
tion did
reflect
law.452
tion under
We defined the
Delaware
Shelton,
purposes
we
explained
scope
as
of allocution
follows:
served
allocution:
[T]here is no blanket rule
would
pur-
serves two
Presently, allocution
preclude a defendant who wished to do
“First,
commonly-
poses:
it
our
reflects
from
discussing
arguing
so
allocu-
held
that our civilization should
belief
already in
tion facts
evidence either
opportunity
every
afford
defendant
guilt
phase.
phase
penalty
or the
Second,
mercy.
permits
it
a de-
ask for
or her
impress
jury
with his
fendant
view, Superior
In our
Criminal
Court
way,
Put another
feelings of remorse.”
32(a)(1)(C)
Rule
11 Del.
C.
affords
necessary
because it
allocution
4209(c)(2)
§
provide a
in the
defendant
“an
to learn
opportunity for
penalty phase
capital
op-
case the
“it
person’”
about the ‘whole
be-
portunity
argue
in allocution from
humanity
de-
speaks
that a
our common
already
guilt
in evidence in the
facts
a fendant not be sentenced
death
phase or
penalty
why
phase
those
heard the sound of
jury “whichhas never
should not result
death
in the
pen-
facts
”456
alty. This is true
argument
whether the
his voice.’
*97
Shelton,
right
capital
450.
"provide
744 A.2d at
of a
defen-
[s]
488.
stitution
jury an unsworn
dant to make before the
Shelton,
scope
451.
In
of allocution was an
subject to cross examina-
statement that is not
impression.”
issue of "first
Id. at 497 n. 142.
tion.” Id.
Therefore, although the defendant had ac-
quiesced
placed
in the limitations
on his allo-
supplied).
(emphasis
453.
Id. at
cution, the
decided
Court
to "waive the waiv-
er rule.” Id.
454.
496.
Id. at
452.
right
Shelton addressed the common law
455.
Id.
Superior
based on
allocution
Delaware
Court Criminal Rule 32 and 11 Del. C.
Shelton,
Shelton,
(citations
4209(c)(2).
§
omit-
The importance allowing a defendant to his allocution or to raise the issue on direct evidence in discuss his allocution must be appeal. We held that he was not entitled to in light purposes. measured of these penalty hearing a new' because “he was cases, itself, some such as the Shelton case unable to show that that was preju- he may defendant have no refer wish to diced” the erroneous limitations.460This the facts of the crime for which he was because Shelton’s “considered strate- cases, however, guilty. found In other dis- gy”461was to avoid discussing in allocution cussing presented the evidence at trial facts of only the case. Not had he may part be crucial of the defendant’s proffer made no of what facts would plea mercy. for allowed, in if argue allocution his wish not Although may evidence have to discuss surrounding the facts the mur- been before the in the guilt phase, der had unusually been made clear purpose of allocution is for the defendant through colloquy among extensive to be heard procedures under that allow judge, Shelton and counsel.462 speak fact, him directly to the jury. In penalty Delaware death statute ex strategy out in Shelton’s was carried his permits
pressly the defendant well as as allocution, during actual which Shelton did present his counsel to “argument” and express not discuss the facts remorse. “summation,”457 the Superior Court Twice he stated his allocution that he permits Rule present defendant Therefore, was not for pleading his life. “any mitigation.”458 information in In Shel placed the limits on allocution trial ton, quoted approval we with Justice object counsel’s failure to to those limits Frankfurter’s observation that most “[t]he point became a moot resulted in persuasive may counsel not be able to error, grounds harmless and thus were speak for a defendant as the defendant overturning the sentence. might, eloquence, halting speak for himself.”459 is a policy key This factor in F. Plain Error Review in This Case analyzing right of allocution and its application to this the limits Capano argues case. light placed on his allocution were error The issue Shelton was first raised his counsel nor Shelton. Neither post-conviction proceeding in that case. objected placed on allocu the limits question stage proceed- of the review,463 plain the Court tion. Under error ings was whether Shelton was entitled to a if com grant only the error will relief penalty new hearing alleged because of the clearly prejudicial sub of is plained “so ineffective failing assistance counsel in fairness jeopardize the object rights as to either to stantial the overbroad and erro- To es- process.” neous limits the court trial placed integrity had (“We 4209(c)(2). § are with a 457. 11 Del. C. faced 462. See id. at 497-98 reveals as very where record unusual case 32(a)(1)(C). Super. Ct. Crim. R. consciously glass the defendant plain as decided, questioning by the after methodical Shelton, 492 (quoting Green on the record *98 judge and statements trial States, 301, 304, 653, United 365 U.S. 81 S.Ct. counsel, present going was not that he (1961)); 670 5 L.Ed.2d see also id. 515 circumstances.”). mitigating (Hartnett Justices, Berger, dissenting). 460. Id. at 499. State, Supr., 504 Wainwright Del. A.2d v. 463. 1096, (citations omitted). (1986) 1100 Id. at 498.
663 error, right tent with the of allocution established plain Capano tablish has the burden prejudice.464 actual showing of in Shelton. above, was not decided
As noted
Shelton
in
judge
The trial
the case before us
Capano
until after
was sentenced. Never- was,
course,
imposed
unaware when he
of
theless, the
that the limita-
State concedes
Capano’s
limits on
allocution of what we
placed
on
right
tions
of allocution
error,
in
were later to decide
Shelton. His
Shelton,465
in light
were too restrictive
of
therefore,
According-
was understandable.
error,
Although it thus concedes
the State
ly,
after
the fact that Shelton was decided
argues
judge’s
limits on allo- Capano’s penalty hearing is not itself a bar
plain
in
cution were not
error
this case.
error,
finding
plain
analy-
to a
of
but that
First,
the State seems to contend that
of
requires
showing
sis
unfairness and
Shelton should not
applied
be
because it
prejudice Capano.
substantial
was decided after
was sentenced.
The State also contends that there is no
argument
The rationale of the State’s
plain error because this Court has not
scope
right
that because the
of the
of
definitively
allocution a
declared
“substan-
allocution
unclear
before Shelton was
tial right.” Shelton held that on the facts of
decided,
impres-
and was an issue of first
that case the defendant had not shown
Shelton,
in
sion
the error
in this case
prejudiced by
placed
that he was
the limits
“plain” i.e.,
cannot have been
obvious.
—
on his allocution.
out
carrying
Shelton was
argument
This
misconceives the
strategy
misguided
his own
—however
plain
nature of
error review. Plain errors
might
strategy
have been—not to discuss
must
“apparent
be
on the
face
the reco
in
developed
facts of the case as
rd.”466
suggested by
As
this language, the
guilt phase.
issue is
apparent
whether the error is
from
We held in Shelton that “it does not
point
the vantage
appellate
court
follow, however,
judge’s setting
that a trial
record,
reviewing the trial
not whether it
parameters
allocution similar
apparent
light
to the trial court in
one
Shelton’s
would not be re-
[in
case]
case,
then-existing
ap
law.467In this
it is
proper
versible error
case where ob-
parent,
State,
and conceded
jection
imposed
preserved,
the limitations
to the limitation was
right
on the
allocution
error,
accorded
plain
are inconsis- where there was
or where
plained,
See Stevenson v.
primary
requirement
reason for the
(1998).
A.2d
'plainness'
appellate
is that the
court on
appeal
positioned
direct
is ill
to review con-
Argument
465. See Tr. of
Oral
in the
10/24/00
undeveloped
tested issues of fact or
issues of
Court,
Supreme
at 29.
Cir.,
Caputo,
law. See United States v.
7th
("An
(1992)
plain
F.2d
error is not
1100;
Wainwright,
504 A.2d at
see also
egregious
in the
if isn’t even clear
States,
sense of
Johnson v. United
520 U.S.
error,
1544, 1548,
that it was an
if that isn't clear the
S.Ct.
there was ineffective assis- the record resulting prejudice tance of counsel and to sue.473 although
the defendant.”468
alsoWe
noted —
G. The Issue Whether
point
determination of the
not neces-
Unduly Prejudiced
Was
sary to the decision in Shelton n —that the
Capano argues that his death
right
arguably
to allocution “is
a substan-
sentence should be reversed because
right
capital
tial
of a
defendant.”469
improperly imposed restrictions
judge
right
also held that whether the
We
“paid
on his allocution and because he
an
right
given
allocution
a substantial
in a
is
for the trial
price
judge’s
enormous
error”
case,
right
it is not a constitutional
under
during
penalty
contends
phase.
the state or federal constitution. This
that
allocution
into an
his
“deteriorated
right
stated in
that the
Court
Shelton
and the trial
ongoing
[him]
battle between
right granted by
not a
either
allocution “is
not
judge.” The record shows
this is
constitutions,
[but
the federal or state
the case.
right
grounded solely
... a
that is
rather]
important
There are
least three
dis-
Rule,
Superior
on the
Court Criminal
tinctions from Shelton that are relevant to
penalty
Delaware death
statute and Dela-
light
of this
in
of the
our evaluation
case
ware decisional law.”470
jurisprudence.
Shelton
review,
plain
In the context of
error
(1) Capano
already
story
had
told his
defendant must show that the error affect-
jury
in extensive direct
rights.471
ed
the federal
substantial
Under
phase,
in
guilt
cross-examination
rule,
phrase “affecting
plain error
sub-
in
testify
guilt
whereas
did not
his
Shelton
“in
...
rights”
stantial
means
most cases
This,
itself,
disposi-
in
not
phase.
and of
prejudicial:
that the error must have been
tive,
plays
our
but it is a factor
into
It must have affected the outcome
plain
of how far the trial
error review
say that a
proceedings.”472
court
To
[trial]
go
judge
permit
must
the defendant
may
merely
right
is not substantial
be
rehashing
arguing
allocution in
way
saying
another
that the defendant
effect of
evidence.
admitted
prejudiced by
cannot have been
errone-
need not
is to
abridgment
right.
purpose
ous
We
The main
of allocution
engage
analysis
present
an abstract
whether
his own
permit a defendant to
Rather,
remorse,
right.”
personal
“halting eloquence”
allocution is
“substantial
his
(relative
error
plain
culpability
consistent with this Court’s
life
diminished
may
to a
jurisprudence,
perpetrators)
we must decide whether the
other
prejudiced
have “heard the sound of
voice.”474
error that occurred
this case
applied to Shelton
policy may
of That
have
Capano when
in the total context
viewed
State,
Shelton,
Del.
709
473. See Stevenson v.
665 waiver). (but evi- express Capano, Capano manage for his on did to discuss some hand, lawyer a trained with lengthy disregard the other was dence in his allocution court; experience. trial imposed by trial limitations (b) Capano’s comportment and and tactics (3) pro Judicial control may trial and allocution well during both ceedings clearly was at issue here and not and jury have alienated the foreclosed in Shelton. Shelton himself was an unso prejudiced by limits argument that he was phisticated defendant who was confused placed on allocution.476The State also ar- clearly expressly but nonetheless and attempts gues that the trial court’s to con- right argue waived his allocution Capano trol and enforce the limitations on hand, Capano, facts. on the other was a appropriate allocution were efforts to deal lawyer. Apparently, trained the trial judge Capano’s transgressions with and maintain thought Capano attempting manip proceedings.477 control of the system ulate the and needed to reined be Although judge may in. the trial have been Capano contends that the trial rebuking presence harsh in him in the judge’s violating rebukes of him for jury,475 colloquies we must evaluate the substan erroneous limits his allocution place during penalty phase took tially him. prejudiced Specifically, he ar Capano’s performance context of dur gues dispute that the Ca- ongoing between trial, ing the entire three-month including pano conveying and the trial risked judge guilt phase his in the and his jury judge person that the trial felt penalty phase. allocution in the Capano. al In animus toward the circum stances, here, argues atmosphere
The State
he contends that this
as
Shel
ton, the
had
Capa
likely
jury’s
limitations
no effect on
would
have affected the
delibe
(a)
no’s
According
allocution.
to the
capital
State:
rations.478 This is a
case that re-
State,
Capano
Supr.,
calls his allocution an "unmiti-
477. See
Del.
Smith v.
disaster,”
gated
1004,
saying
that it "deteriorated
(stating
judges
1009
that trial
ongoing
Capano
into an
battle between
duty
"should be mindful of their
to act in-
judge,” during
Capano
trial
which
stantly
disrespectful
to control
or obstruction-
"fiercely denigrated by
judge
the trial
in front
courtroom”).
ist tactics in the
jury
for what is now
to have
conceded
judicial
been
error.”
See,
State,
e.g.,
Supr.,
Childress v.
721
(1998) ("A
Judge
A.2d
932 n. 11
Trial
Argument
476. See
of Tr.
Oral
in the
10/24/00
duty
language
any
any
has
to avoid
Court,
Supreme
at 31-32:
jury
suspect
conduct that would lead the
really
ability
Mr. Wharton: [I]t
strains the
judge
party
that the
is favorable to one
to the
[sic] to believe that Mr.
did not
trial.”)
(citations
quotations
and internal
really
opportunity
say everything
have an
omitted);
Hosp.,
Callahan v. Cardinal Glennon
say,
he wanted to
whether it be in allocu-
(1993) (en
Mo.
S.W.2d
867
testimony.
tion or whether it be in
his
banc) (noting
judge
great
that "a
exerts
influ
eight days.
He testified for some
He allocat-
jury”);
ence over the
Jefferson-El
range
ed
some
45-50 minutes on wide
(1993) (noting
A.2d
Md.
subjects.
judge's "opinion
or manifestations thereof
usually
significantly impact
jury’s
will
ver
attempts
And his
to further belittle individu-
States,
dict”); Starr v. United
153 U.S.
play
als in the courtroom would not
well
919, 923,
(1894) ("It
S.Ct.
ble frustration with Capano’s presented The powerful mitigation most rebukes, may have been harsh but Rather, does not involve the defendant. patience he also showed and restraint with impact it is the on his remarkable Indeed, Capano. Capano’s counsel admit- daughters and a brother he involved in judge ted that the trial showed restraint his criminal activities and ridiculed then despite Capano’s repeated violations of the family excommunicated from the ruling scope court’s on the of the allocu- him guilt when and circumstances forced tion.485 to tell the truth. Capano, Super.,
483. State v.
No. IN97-
Id. at 11.
11-0720, Lee.,
(March 16, 1999) (Mem.
J.
1/28/99,
Op.),
Op.
Mem.
at 10.
485. Tr. of
at 59-60.
matter
Capano
judgment
Accordingly,
Tom
not face
we hold that as a
does
allocution, any
Delaware’s law of
errone-
today
family
because his friends and
placed
Capano’s right
ous limitations
judgment
failed him. He faces
because
judge’s colloquy
allocution and the trial
a ruthless
feels com-
murderer who
Capano
jury,
although
front of
one,
passion
only
for no
and remorse
did
regrettable,
prejudice
the circumstances he finds himself in.
him
penalty
do not entitle
to a new
hear-
a malignant
He is
force from whom no
ing.
disloyal
one he deems
or adversarial can
secure,
be
even if he is incarcerated for
Constitutionality
XVI.
of Delaware’s
of his
the rest
life.
Penalty
Death
Statute
judge
Capa-
did not emasculate
challengés
two
raises
*103
right
by considering
to allocution
no’s
his
the
statuto
constitutionality of Delaware’s
ry
penalty process.
allocution.486
death
He first con
during
behavior
attitude
process
right
that the
his
to
tends
violates
Capano
purpose
failed to
to the
adhere
trial
jury
judge may
a
because a trial
Although
allocution.
limitations in
the
the
apply
penalty
the death
under 11 Del. C.
were
and although
instructions
erroneous
case,
where,
jury
§ 4209
as in
the
did
judge may
the trial
harsh
have been
his
unanimously
statutory aggrava
a
find
antics,
Capano
reactions to
it was
Capano
ting
argues
factor.
also
that Dela
destroyed
opportunity
alone who
to
sentencing procedure violates
ware’s
the
Instead,
present
mitigation.
evidence
he
Fourteenth Amendment Due Process
vilify
the
others
opportunity
used
to
it
trial
permits
judge
Clause because
the
responsibility
Fahey’s
for
death.
transfer
statutory aggravating
to find a
factor with
of the
judge
limiting
The error
trial
being
by
jury
bound
a
verdict on the
out
Capano’s right
proper
to
facts
discuss
is underlying issues of fact. This Court re
fact,
point
it
harmless.
is a moot
two
alleging
de novo
that the trial
views
claims
First, Capano
reasons:
did not want
court’s decision to
sentence
facts;
to assail
proper
discuss
he wanted
violated Capano’s
death
constitutional
not an ac-
people
institutions. This is
rights.487
the
ceptable
right
use of
of allocution. Sec-
ond,
Right
Applied
to a
as
Jury
in fact
A.
Trial
he did
discuss
number of
Penalty Hearing
the
under the De-
despite
matters
the trial court’s limita-
Penalty
laware Death
Statute
tions,
put
and he was thus able to
before
jury
the
much of what wanted them to
he
note
outset that
We
at the
it
although
is doubtful
statute, like
penalty
Delaware death
those
hear —
helped
any
his own
If there was
case.
states,
contem
expressly
of several other
epi-
prejudice
in the allocution
plates
non-binding
non-unanimous and
sode,
must
jury
there-
primarily
it was
self-inflicted.
recommendations.488We
Hildebrand,
See,
jury
§
e.g.,
provides
Del. C.
that "The
United States v.
8th
488. 11
Cir.,
(1998) (drawing
report
F.3d
simi
...
its
152
766
shall
final vote
number
Li,
Cir.,
conclusion);
negative
2d
affirmative
votes” on
lar
United States
each
(1997) (same).
"[wjhether
beyond a
F.3d
134
rea-
evidence shows
ag-
doubt the existence of at least
sonable
Del.
gravating
C.
circumstance....”
487. See Williamson v.
court,
4209(c)(3).
§
“after
trial
consider-
(asserting that
A.2d
decisions
right
ing
jury,”
constitutionally protected
the recommendation of
must
implicating a
Court).
"[b]eyond a
rea-
subject to de
in this
then establish
existence
are
novo review
inquiry
a similar
right
guilt. Undertaking
fore determine whether a defendant’s
Cohen,493 however, we held that
State v.
jury
trial
Article I.
4 of
under
Section
the Dela
right
by jury
to trial
under
im-
necessarily
the Delaware Constitution
“the
guarantee
does not
ware Constitution
plies
right
jury
to a unanimous
verdict
jury
punish
...
to have a
determine
right
on all facts.489
Instead,
capital
ment
in a
case.”494
guar
The Delaware Constitution
historic
jury’s
Court found that “the
Cohen
facts,
by jury
antees that
shall be as
“[t%]rial
limited to that of a trier of
role was
phrase incorporates by
determining guilt
This
or innocence.”495
heretofore.”490
right
the common law
to trial
reference
therefore conclude that
We
jury,
“any analysis
right
of the
to a
return a unani
jury
required
is not
by jury,
guaranteed by
as it is
factor in
finding
aggravating
mous
of an
Constitution, requires
Delaware
an exami
advisory
during
penalty phase.
its
role
nation of the common law.”491Based on a Although
jury’s advisory report
on statu
analysis,
previ
common law
has
this Court
necessarily
tory aggravating circumstances
ously found that under the Delaware Con
factual dis
requires
to resolve
stitution, “[u]nanimity
jurors
...
fundamentally differ
putes, this exercise is
*104
required
juris
to reach a verdict.”492 This
jury’s fact-finding
ent
a
role in the
from
prudence
guilt phase
relates to the determination of
under the common law.496
added);
statutory aggra-
(emphasis
Apprendi
sonable doubt
at least 1
495.
v.
[of]
Id.
see also
466,
4,
4209(d)(1).
vating
Jersey,
§
circumstance.” Id.
New
530 U.S.
478-79 & n.
120
2348,
(2000) (noting
S.Ct.
victim based on the victim’s Al- punishment.”508 maximum ceive that religion.504 Supreme Court invali- may present a valid though analysis Jersey dated the New statute on the reasoning, majority’s of the criticism that the statute constituted an ad- ground Court majority that a fact remains *106 crime— underlying ditional element of the holding Apprendi in did concluded that the i.e., the defendant’s motivation—that must approving of decisions not disturb the line jury proven beyond a be submitted to in Dela- like that penalty of death statutes a the maximum reasonable doubt before penalty may ware. authorized be increased.505 murder, 468-69, 491, degree the trial guilty verdict for first
503.
Id. at
Under Delaware’s
death
“the required finding expose[s] the defen
penalty procedure,
jury
when a
punishment
finds
dant to a greater
than that
guilty
murder,
defendant
degree
first
jury’s guilty
authorized
verdict.”512
the jury
earlier,
authorizes the statutory maxi As we noted
a conviction at the
sentence,
mum penalty:
subject
the death
guilt phase by a
unanimous
under the
penalty phase
to the
judge’s
and the
deci
first degree murder statute constitutes the
sion on sentencing.
jury during
Once the
imposition
authorization for the later
guilt phase
penalty.513
authorizes the
the death
finding
Because the
“
maximum penalty,
may
‘it
be left to the
aggravating
“expose
factor does not
judge to decide
punishment
whether
that maximum defendant to a greater
than
one,
penalty,
ought
rather than a lesser
degree
that authorized”
a first
murder
’ ”511
imposed....
conviction,
be
We therefore conclude
aggravating
factor is not an
stone,
(emphasis
509. Id. at
England
673
cir
aggravating
statutory
mur-
degree
the first
element of
additional
The
murder
in
is that “the
addition,
question
cumstance
In
the Delaware
der offense.514
of sub
the result
premeditated and
judge
find
that the
requires
statute
making
In
a sentenc
planning.”518
stantial
beyond a rea-
aggravating circumstances
recommendation,
re
jury
ing
Jersey
The New
hate
sonable doubt.515
First,
questions.
two
quired to answer
contrast,
statute,
a find-
by
required
crime
exi
circumstance
aggravating
this
whether
evidence
preponderance
ing by
Second,
aggravating
whether
sted.519
crime was motivated
underlying
that the
non-
(statutory or
it found
circumstances
to intimidate.516
by a desire
cir
outweighed any mitigating
statutory)
Accordingly, we conclude
case,
In
it found.520
this
cumstances
in 11
penalty process
Del. C.
the death
11 to 1 that the
a vote of
jury
by
found
a trial
right
§
not violate the
4209 does
circumstance exist
statutory aggravating
by jury under the Delaware Constitution
of 10 to
found
a vote
jury
ed. The
also
the Due Process
and does not violate
circumstances
aggravating
that the
Fourteenth Amendment.
Clause of the
circum
outweighed
mitigating
case
present.521
stances also
Aggravating Circumstance
XVII.
instruc-
aggravating
The
circumstance
Instruction
jury
to the
judge
the trial
tion delivered
cir-
Capano argues
aggravating
that the
case is as follows:
this
given
jury
instruction
to the
cumstance
circumstance
statutory aggravating
This
sentencing
its
recommen-
connection with
finding
premeditation.
requires
Capa-
According
dation was erroneous.
premeditated,
for a murder to be
order
no,
instruction defined the relevant
thought
must have
about
the defendant
way
circumstance in such a
as
aggravating
it,
it,
it
or deliberated about
considered
the death
to allow the
to recommend
to kill must
design
beforehand.
penalty
degree
if it found the same
sedate,
pro-
from the
deliberative
arise
degree
convict of first
required
intent
though
impulsive,
or
cess and not
rash
murder.
statutory aggrava-
act. This
intentional
Review of this claim is de novo.517
that the
requires
also
ting circumstance
agree
Capano’s argument
We do not
of substantial
was the result
murder
planning
plan-
in this
planning.
because we find
the instruction
Substantial
ample peo
sufficiently
ning
case
narrowed the class of
which is considerable
of the crime.522
the commission
ple eligible for the death sentence.
aggravating circum-
that the
Apprendi,
U.S.
stance and finds
120 S.Ct.
outweigh mitigating
added).
to exist
stances found
(emphasis
C.
to exist. See 11 Del.
circumstances found
4209(d)(1)(a).
§
515. See 11 Del. C.
4209(d)(1).
§
468-69, 491,
4209(c)(3)a.2.
§
520. 11 Del. C.
Apprendi,
516. See
530 U.S.
517. See Chance v. penalty or life for either the death mendation (1996). Manley imprisonment. See (1998). 4209(e)u. § 647 n. 518. 11 Del. C. *108 1/28/99, instruction at 126. The 522. Tr. of 4209(c)(3)a.1. judge § The trial 519. 11 Del. C. requested by Capano is as follows: only judge impose penalty if the can the death aggravating circumstance statutory This beyond a doubt the existence finds reasonable may be which applies to murders those statutory aggravating circum- one of at least 674 Capano’s way no in a argument aggravating
We find merit circumstance killings intentional that are not a distinguish that this instruction excludes fails prepara- of result calm deliberation and jury circum- aggravating between the requires tion. The instruction “premeditation” stance of and “substantial substantial, ie., planning be “considerable and the planning” “intent” element first ample,” merely plan- or the amount of degree murder. ning necessary resulting for the act process requires aggravating Due cir- Moreover, specifi- death.526 the instruction “genuinely cumstances to narrow the class cally killings excludes that are “rash or persons eligible penalty for the death contrast, impulsive, though intentional.” ... reasonably justify imposition degree requires a first murder conviction of a more severe sentence the defen- only killing be intentional.527 compared guilty dant to others found Therefore, argument Capano’s is without aggravating murder.”523The circumstances merit. “permit must the sentencer to make principled distinction between those who Statutorily XVIII. Mandated Review penalty deserve the death those who Death Sentence do not.”524In determining whether these This Court must conduct a met, criteria are “we find the relevant mandatory, Superior limited review of the inquiry fairly to be whether ‘the sentencer imposition the death Court’s sentence.528 could that an circum- aggravating conclude 4209(g)(2)b, § 11 Del. we must Under C. case, [in stance as defined examine the evidence the record to de applies every el- instructions] defendant supports Superior it termine whether ’”525 igible for the death sentence.... statutory aggravating of a finding Court’s
The instruction in this case fulfilled circumstance. We must then address both
criteria.
required by subparagraph
these
The instruction defines the
determinations
(or
State,
5,
Supr.,
as
contract
characterized
executions
Steckelv.
Del.
13
murders).
statutory aggravating
Creech,
(1998)
463,
This
cir-
(quoting Arave v.
507 U.S.
finding
heightened
requires a
474,
1534,
cumstance
(1993));
113 S.Ct.
675 Arbitrary Penalty Not B. Death this anal- 4209(g)(2).529Under a. of Section Capricious. or imposi- the we first consider whether ysis, arbitrary or penalty of the death was tion the must review This Court Second, whether capricious. we consider the whether to consider death sentence present in the ease was penalty the death arbi was the death sentence imposition of imposed to that similar disproportionate argue does not trary capricious. or inquiries, undertaking these cases. When Nonetheless, find that the we that it was. aggrava- a whole the we must consider as Superior that the Court’s record “reflects as it bears mitigating penalty and evidence ting impose the death decision deliberate, and and rational of the crime of a upon product the circumstances ‘the The court process.’”532 deductive logical the character of the defendant.530 that, punish determining the recognized Statutory Aggravating A. Circumstance ment, aggravating weighing the qualitative circumstances mitigating argue does not take into account and must quantitative support evidence was insufficient to present.533 totality the circumstances finding statutory ag of a Superior Court’s jury found gravating circumstance. The statutory aggravating In addition to the circumstance, of 11 to 1 that “the murder was vote trial court found proved by substantial premeditated and the result of substantial had State the fol- the existence of rehable evidence that the planning.”531The trial court found non-statutory aggravating circum- lowing statutory aggrava proven State had this “1) mur- impact of the stances: Substantial beyond factor a reasonable doubt. ting friends, family and co-workers upon der evidence, was substantial which has There 2) actions of defendant seek- Fahey; Past length sections of this been discussed 3) ex-lover;534 harm an Defendant’s ing to Opinion, support finding. this 4) vindictiveness; criminal Defendant’s (1994) Dog (quoting Red v. perti- § 642 778 4209(g)(2) provides in A.2d 529. 11 Del. C. State, (1992))). part: Supr., nent A.2d 310 Del. 616 Supreme its Court shall limit review under this section to recommendation Super., Capano, No. v. Del. 533. See State penalty imposition of the of death on and 16, 1999) IN97-11-0720, Lee., (March J. Whether, determine: a. consider- and shall (Mem. Op. State v. Op.), Mem. at 18. See ing totality aggravation of evidence in (1992) Cohen, Supr., 849 Del. upon partic- mitigation which bears balancing aggravating and (stating or details of the offense ular circumstances involves "reasoned mitigating circumstances propensities character and of the and the offender, require what factual situations judgment as to penalty either arbi- the death and which can be imposition of the death capriciously imposed trarily or or recom- light of the imprisonment in satisfied life mended, disproportionate penalty to the present”). totality circumstances imposed cases recommended or in similar arising under this section. Marandola, lover, testi- Linda 534. A former Zebroski, 82-83; Wright A.2d at 530. See hearing pattern of sentencing to a at the fied (1993) State, Supr., A.2d Del. by Capano over a number harassment 4209(g)(2)a.). (citing §C. 11 Del. 1980s, including send- years, in the 1970s and Delaware, telling ing her to leave her letters 4209(e)(1)u. §C. As discussed 531. 11 Del. harassing Tr. of making phone calls. above, gave trial court a correct instruc 79-95, 1/20/99, point At one 165-66. defining aggravating cir tion to the party third about Capano talked to a cumstance. ex-lover, apparent- hiring hurt an someone to State, Supr., A.2d Del. 532. Steckel v. at 167-74. ly See id. Marandola. (quoting Ferguson v. *110 5) premedi- conspiracies;535 continuing manipulation. Defendant’s and Defendant’s 6) behavior; lack manipulative planning contingen- Defendant’s tation and was for a remorse; 7) that, Defendant’s disdain for au- perhaps, hoped cy he would never 8) thority; and did, Defendant remains threat happen, evening but on the of June vengeance to direct crimes of while incar- destroy posses- 1996. He chose to cerated.”536 it; sion rather than lose to execute an escaping chattel.
The court also found the existence “1) only mitigating The circumstances of mitigating of six factors: Defendant’s 2) record; significance to this Court concern defen- any prior lack of criminal The daughters impact and the him in dant’s daughters need for his to have their 3) lives; daughters’ The need for his mother to have crime on Gerard. Defendant’s 4) life; family deep him in her genuine The need of other love for their father is 5) lives; members to have him in their they The want him in their lives. Howev- and, guilt particularly, intense which Louis er, trial, during this defendant has part partici- Gerard would feel for their in advantage shown that he will take of his pating proceedings might in these which daughters accomplish an end which 6) death; in result defendant’s and Defen- himself. Their love for him benefits is community dant’s service.”537 However, past since defendant’s great. history prime is a indicator of his future Superior carefully weighed Court behavior, poses it is clear that defendant aggravating mitigating circum- daughters’ a threat of harm to his well- case, articulating stances in this being. grounds impose for its decision to (in penalty.
death
The court
not want defendant sen-
concluded
Gerard does
death;
part)
great
as follows:
will feel
re-
tenced
no
sponsibility for
it. Gerard bears
planned,
period
Defendant
over a
blame; instead,
directly
goes
the blame
time, to kill
Fahey
Anne Marie
and to
involved
to defendant. Defendant
Gerard
dispose
body
of her
that it could not
so
plans.
commit-
his murder
Defendant
be found. He then blamed the murder
ted the murder. Defendant is the one
on an
had
against
ex-lover who
testified
blame,
all
accept
who must
but does not
him. The crime defendant committed
epitomized
horrific. The crime
because of his flawed character. Gerard
makeup
understand that defendant
is
of his character: vindictive and
should
out
controlling.
reacting
way:
his normal
strike
subject
punish
disloyal
at the
person
attempts
right
who
to do what is
The circumstances of the murder here
and not immoral.
one,
are similar to those in Gattis. No
daughters
the harm to his
and to
Absent
defendant,
except
ever will know
Gerard,
nothing
in defendant’s
there
exactly
why
Fahey
how or
Anne Marie
imposition
life which would call for the
died. What is certain is that it was not a
will not
but, rather,
of a life sentence. Defendant
passion
crime of
a crime of
accounts,
constantly
he will
adjust
prison;
well
By
control.
all
she had ceased
rules;
prison
he will
by-pass
had never
scheme to
be defendant’s lover but
influence,
he will continue to
escaped
sphere
defy prison authority;
control
Perillo,
Op.
Capano,
at 16.
Capano’s,
inmate of
testi-
Mem.
fellow
sought
help
Perillo's
fied at trial that
finding
burglarize MacIntyre’s
Id.,
someone to
at 17.
11/24/98,
house. Tr. of
at 56-58.
that his death
manipulate
argues
those
him from
who love
*111
prison
poses
disproportionate. According
within the
walls. He
sentence is
threat of harm even while incarcerated.
in which
Capano, the
of cases
universe
That
He committed a horrific crime.
penalty
imposed
has been
involves
death
out-
crime
his antisocial behavior
“multiple
mul
cases with
victims” “and/or
weigh any mitigating circumstances. The
Ca-
tiple statutory aggravating factors.”541
death is
in this
sentence of
warranted
“significantly
is
pano argues
his case
case.538
“in
aggravated,”
single-victim
and that
less
cases, arising
personal
from a fractured
deliberate,
Based on the record and the
relationship, death
are not rou
sentences
rational, logical
process
deductive
reflected
tinely imposed.”
opinion,
in the trial court’s
conclude
we
court
impose
the trial
did not
argument
Capano’s
persuasive.
is not
capri-
either arbitrarily
death sentence
or
First,
fact that Fahey
§
11
ciously
4209(g)(2)a.
under Del. C.
in this
not
only
meaning-
victim
case does
fully distinguish
meriting the
other cases
Penalty Proportionality
C. Death
Review
penalty. Nor
the fact that
death
does
this
conducting
statutorily-mandated
In
relationship.”
involved a “fractured
killing
inquiry,
proportionality
the Court “refers
Like others sentenced to death
Dela-
involving
the ‘universe’ of
first
cases
ware, Capano
guilty
of an un-
found
degree
charges
murder
that have included
provoked,
murder of a de-
cold-blooded
a penalty hearing and
the conclusion
after
Moreover,
person.542
fenseless
we have
of which the sentence
final.”539
has become
“deliberate,
stated
cold-blooded
appear as
appendix
Those cases
to this
helpless
in execution
of a
killing,
style,
decision. An exact
of these
comparison
lover,
society’s
is
spouse
deserving
practicable,
cases is
“but a review of
The evidence in
harshest condemnation.”543
factors,
objective
including
gravi-
some
Capano spent
case was that
months
this
offense,
ty of the
the circumstances sur-
kill
planning
Fahey,
his one-time lover.
crime,
rounding the
and the harshness of
State,544
Taylor
relies on
v.
helpful
penalty
reaching
a deter-
State,545
involving
v.
cases
bru-
mination of whether or
case fits Williamson
not this
pattern
within a
death sen-
tal murders
which the defendant was
Delaware
precedent.”540
Taylor,
In
tence
not sentenced
death.
State,
factors);
ry aggravating
538.
Id. at 18-21.
v.
Weeks
Del.
(1995) (multiple
Supr.,
A.2d
653
271-74
may
539. The relevant
cases
be
universe of
victims,
factors);
statutory aggravating
three
Appendix A
found in
attached hereto. Zebro
State,
Supr.,
v.
I notwithstand- respectfully would result, in ing any concurrence Second, prosecutor’s of the regardless majority contrary to Part III B of the testimony in his clos- Lyons’ recasting of properly ad- Opinion, judge that the trial attempted to comment on Lyons never ing, view, testimony. my Lyons’ mitted Gerry’s disclosure be- the truthfulness therefore, no judge the trial committed Gerry’s decision to disclose fore after error whatsoever. to federal what he “knew” fully more attorney, was though his agents. Lyons, majority’s
I with the conclusions agree Gerry’s credibility support position no that: I no reserva- point in time. have at either judge’s limiting 1. the trial instructions jury clearly concluding that tion in impact Lyons’ testimony minimized the very point. understood that full disclosure timing Gerry’s about the view, ex- Gerry’s majority’s revela- alleged fully of the facts and of I endorse Opinion, II on the plained that he believed that he would have to of the tion Section approach to the admissi- forthcoming be before he “went Delaware Courts’ more that, Entirely of evidence. bility he detector test” inferential- or exclusion took the FBI; and, view, my that by that belief ly, might required be consistent with actual, jury know the it to let the is better totality given of the evidence particu- at that explanation why truthful portion supplied of it planning, testimony, Gerry expanded lar moment disclosure “was Gerry part as of his fuller caution, than to leave appropriate indispensable part or critical not an irrel- range of speculate on a wide them to State’s case.” ap- evant, for his possibilities untruthful However, important considerations two parent epiphany. the trial the conclusion that lead me to Polygraph Test to a The Reference Lyons’ testimony judge correctly allowed poly- to a any reference I surrounding agree the circumstances explaining potentially mischievous may test be graph Gerry’s fuller disclosure. 556. D.R.E. 555. D.R.E. 102. should, therefore, problematic brought be to the under the circumstances of and would rule that judge’s carefully attention this case the refer- properly ences were admitted. scrutiny
screened with enhanced to assure appropriate that no other alternative evi- Lyons’ testimony only actual mentions dence is available to establish the relevant Gerry “yes,” that he told he would or operative fact sought to be admitted and might required be take a polygraph test that a restrictive instruction be crafted to “you anything and that can’t hold back.” instruct the jury purpose on the limited purpose of this was to ex being which the evidence is admitted.557I plain the surrounding circumstances Ger further agree may that Whalen not be he, ry’s Gerry, fuller disclosure of what broadly permit read to a lie references believed to have occurred. At no time did prove detector test to range limitless of Lyons attempt to characterize the testimo Nevertheless, operative “per facts. se ny any way Gerry’s to bolster credibili exclusionary go rule” would too far when ty. I recognize points made may there be no admitting other basis for majority support of their view that there evidence, critical the trial judge conducts “potential Lyons’ status as an an appropriate analysis Rule 403 and then experienced lawyer may imparted have ” cautionary formulates clear instruction credibility Gerry’s testimony .... I jury. for the accept majori note and reasonable the as ty’s likely view that “... a would be Here, I see meaningful little difference *114 to not Gerry disregard infer that did admitting between polygraph evidence to Lyons’ make full emphatic directive to dis prove that under all of the circumstances added) simply I (emphases closure.” do not (as Whalen) voluntary confession was in in agree light with those inferences of the admitting evidence that a witness be- cautionary given jury to the instruction poly- lieved he would have to submit to a my hope equally own. I reasonable graph belief which caused him to di- —-a inference, not, in jury that a does our vulge expansively more knowledge his culture, accept current criminal defense relating facts to in In light issues this case. “truth, attorneys jus for paradigm as the instruction, the judge’s cautionary trial I (if way” tice and the American there still believe there is no basis to conclude that one). Explaining why Gerry be offered ad (1) jury simply either the would blatantly point ditional detail at that would assist ignore blindly the instruction and find that jury’s the relevant understanding it, Gerry passed both took the test and in immediately events. The trial judge jury proceeded, contrary to the jury, appropriately limiting structed the instruction, to through speculation find fairly draw they inferences that could Gerry about unreliable evidence that ulti- poly prospective from the references to a mately told the truth. as an graph Lyons’ test or from status Lyons’ Testimony Attorney Vouch- attorney. Lyons’ in actual testimo Nothing ing suddenly Gerry then ny suggested that agree While I that it was error to may the truth and that he telling started if Lyons testimony admit the that it was The been until that denouement. have error, harmless and therefore concur in jury had to understand from the caution point, the conclusion affirm on I to this they that still had to re ary instruction respectfully depart majority’s from Gerry the truth before solve whether told view that the references were dubious or and after he concluded that he would more D.R.E. is war- prohibition The knew detector tests. Such fully jury disclose what he knew. lie of a detector ranted because the results free to conclude that they remained unreliable, examination inherently are this brother lied both before and turncoat nature has the apparent their scientific the cau after the fuller disclosure because jurors giving into potential as If to mislead tionary told them much. instruction harmless, occurred, Admission results weight. error matter how it results undue no therefore, tests, may consti- prosecutor, without ob of lie detector occurred when jection, in his tute reversible error.559 embellished inference Lyons closing by asserting “you said concerning case testimony this truth,” complete have tell the when test, however, is potential quite lie detector fact, Lyons made no such statement.558 Here, pre- no different. there was evidence I, therefore, jury that a lie detector test would conclude that sented Gerry Capano, was ever trial did not abuse his discretion administered judge Lyons testify when he let alone the results such a test allowed and when what Rather, the permitted might testimony he to elicit have the State been. Gerry this case indicated that believed that Gerry had disclosed additional infor- subject mation test. probabili- when confronted with he was to a he detector This ty polygraph would face a explain why test was offered to the when judge’s appropri- Gerry changed the trial instruction to investiga- his statement ately jury’s limited the of the judge proper- consideration in the tors case. As the trial under it was circumstances which admitted in- ly jury, limiting instructed the and the which it was purpose struction, admitted. provided evidence was perform they them so that could their Chancellor, CHANDLER, with whom most basic function: evaluation relia- Justice, STEELE, joins concurring. bility they from which evidence could join I agree in and ultimate draw of fact. Given conclusions *115 judgment in to affirm Chief Justice Veas- judge’s explicit limiting and in- adequate Opinion Nevertheless, ey’s struction, the I for Court. the nature of the given and evi- the respectfully disagree analysis by with in presented, dence this is not a case which the majority Opinion— in areas of the two unduly persuasive the value results Part Part III.B. and XV. pseudo-scientific of a he detector test jury’s tainted the deliberations. Because (as briefly For I forth reasons set below majority impose the to unneces- appears well as in those raised Justice Steele’s sarily standards on the admis- restrictive concurrence, fully I with which agree happens testimony sion of that relevant in join), which I also I do not agree with detector,” I the include “he cannot words the majority’s determination that the trial join finding in the of error. I majority’s do (1) court it Lyons’ erred when admitted join majority’s in the ultimate conclusion test, the lie detector testimony about (had one) any that there been was error scope Capano’s the limited allocution. doubt. beyond harmless a reasonable Lyons’ Testimony Lie Detector Likewise, disagree with respectfully I jurisdictions, majority’s As do conclusion that most has Delaware Lyons’ proper, admitting testimony court erred in long-standing, quite prohibi- it to a “subtle and indi against tion admission of the results of lie because amounted at 66-68. 559. See Foraker v. Tr. of 1/13/99. (1978). vouching Gerry’s rect version of for credib been warned that he faced perjury charges State,561 ility.”560 upon Relying Graves v. if he testify fully did not about what had the majority Lyons’ views happened. admonitions to I find nothing problematic Gerry “to make full jury disclosure” and about a having right Ger to consider ry’s possible exposure to a lie detector and assess whether information of this test, together Lyons’ with helpful status as an kind is in determining whether a experienced lawyer particular and former federal witness is or not. credible prosecutor, as the equivalent subtle majority “implicit Lyons’ The finds it Lyons’ vouching Gerry’s for truthfulness Lyons that believed his own ad- his prosecutors. disclosures to federal I monitions have been effective ... [and] majority’s confess that the is too rationale [t]hus subtle indirect version of subtle for me grasp. vouching Gerry’s credibility.”562 If I
First, (or Lyons never explicitly, testified or found vouching “implicit” such were implicitly, that he thought Gerry being explicit) Lyons’ testimony, was I also would truthful, either before or Gerry danger after be concerned. The then would be changed story prosecutors. jury that the would evaluate Gerry’s credi- Second, “reputational bility none of (including, permissi- boast- the facts admonitions) ing” bly, that fact Lyons’ occurred Graves occurred but Third, here. I rather Lyons’ presumably expert think the based on majority has con- (that opinion he, Lyons, concepts. Gerry fused two distinct believed unproble- It is advice), had impermissi- matic for a followed his thus jury provided to be information bly abdicating jury’s fact may role as finder. assessing assist them in the cred- view, problem, The in my majori- with the ibility of a witness. That is what occurred ty opinion I implicit is that see no such Lyons explained here. urged how he Gerry vouching. majority The legitimate conflates anything “not hold back.” jury (“I factual testimony Gerry told to make entitled to consider that fact in its effort to disclosure”) full with illegitimate opining was, trial, assess whether Gerry telling (“I disclosure”). am sure he did full make the whole truth and story whether the Nothing in the record indicates that told agents to federal was the whole truth. opinion latter belief expressed majority What then finds troubling jury, implicitly either or explicitly. Lyons’ testimony might have been is, persuasive, could my opinion, necessarily pro- it is not have actually found that his advice had lawyer blematic for a testify as a fact *116 Gerry spoken caused to have truthfully to in the witness manner that occurred here. agents. federal But that conclusion is also day age, In this and I think it highly unproblematic. jury quite properly The jurors unlikely greater that would accord could consider a whether witness’s testi- weight lawyer’s testimony to a than to mony had changed else’s, because that witness anyone certainly in nothing this had been advised to anything case, not hold bizarre a lawyer where was on trial murder, back. Similarly, jury quite properly the juror would a lead to think could consider that a lawyers professionals witness’s that are trusted to story changed event, had because the had any witness whom deference is owed.563In 563.See, Galanter, Supra e.g., at 595. Marc The Faces of Image Lawyers Mistrust: The in Public 144, 1993, 561. Del. No. 1994 WL Jokes, Discourse, Opinion, and Political 66 U. 416533, Walsh, 1, 1994) (ORDER). (Aug. J. (1998). Cin. L. Rev. 805 added). Supra (emphasis at 595 pen- death Superior Rule Lyons’ if it was to admit testi- Court even error be I harmless that defendant mony, agree alty that it was error. statute mandates a jury ver- permitted collaterally attack to Allocution in manner. To allow a defendant dict in a majority way that facts favorable disputed has decided to recast restricting Capa- him, in has reached jury already court committed error to after agree I that right verdict, no’s of allocution. While beyond evo- goes legitimate its any error this context would have been communication of re- mercy cation of harmless, separately I am to concur forced attempts jury to morse and also cause I conclude that there was no error because in way doubt verdict that is its own at trial. subject other not to cross-examination or prosecution. In effective correction recognized recently
As this Court short, pro- is proceeding likely such a State,564 allocution, present, Shelton other To the duce confusion and mischief. purposes serves two for a convicted mur majority extent the concludes Shelton permits mercy it him to ask for derer: have been requires should attempt impress jury his feel theory again allowed Court, present factual ings pur of remorse.565 The Shelton rejected, rely jury which the had as evidenced porting Superior on Criminal Court 32(a)(1)(c) conviction, my 4209(c)(2), by opinion § its it Rule 11 Del C. be found that it error for the trial court Shelton itself is error and should Therefore, defendant, during to limit a an allocution overruled. on allocution is- cross-examination, sue, result, subject to respectfully ar I concur but from join aspect Opinion had made er I do not in that guing factual leading erroneously finding finding rors to a that the trial court’s limitations however, my opinion, guilt. nothing in allocution constituted error.
APPENDIX A § Cases 11 Del. C. 4209 Decided Under **
As Amended in Laws Ch. Name: Meri-Ya C. Baker ID: Criminal 90011925DI County: New Castle Imprisonment Sentence: Life (Dee. appeal: 860,1992,1993 557951, Holland, 30,1993) Decision on No. WL J. Tyreek D. Name: Brown ID: Criminal County: New Castle Imprisonment Sentence: Life (Mar. Hartnett, 1,1999) 314,1998,1999 appeal: J. Decision on No. WL *117 L. Name: Justin Burrell ID: Criminal 9805012046 County: Kent Court, appendices incorporated (2000). and those are 465
564. Del.
See, e.g.,
Lawrie v.
herein
reference.
Shelton,
See
Decision on
Decision on
Decision 672 A.2d Name: Charles M. Cohen Criminal ID: 90001577DI County: New Castle Imprisonment Sentence: Life appeal:
Decision on appeal No direct taken Crowe, Name: James T. Jr. Criminal ID: County: New Castle Life Sentence: Imprisonment appeal: 333,1997,1998 (Oct.
Decision
Walsh,
8,1998)
No.
WL
J.
Name:
F.
David Dawson
88K00413DI
Criminal ID:
County:
(venue
changed)
New Castle
Death
Decision on Demby Name: Curtis Criminal ID: County: New Castle Sentence: Imprisonment Life (2000) appeal:
Decision on
Decision on No direct taken
Name: Robert A. Gattis Criminal ID: 90004576DI
685 APPENDIX A County: New Castle Death Sentence: (1994) appeal: A.2d 808
Decision on 637
Name: Arthur Govan Criminal ID: 92010166DI Castle County: New Imprisonment Life Sentence: (Jan. 48359, Walsh, 30,1995) 363,1993,1995 J. appeal: on No. WL Decision Jackson, W. III Name: Robert Criminal ID: 92003717 County: New Castle Sentence: Death (1996) appeal: A.2d 745 Decision on 684 A. Kirk Mark
Name: Criminal ID: County: New Castle Imprisonment Sentence: Life 29,1999) 532,1997,1999 415802, Berger, (Apr. J. appeal: Decision on No. WL David J. Lawrie Name: Criminal ID: 92K03617DI County: Kent Sentence: Death (1994) appeal: A.2d 1336 Decision on Magner
Name: Thomas M. ID: Criminal County: New Castle Imprisonment Sentence: Life Walsh, 29,1998) 224,1997,1998 (July J. appeal: Decision on No. WL Moore, Frank W. Jr. Name: Criminal ID: 92S03679DI County: Sussex Imprisonment Sentence: Life 202289, Holland, 9,1994) 214,1993,1994 (May J. appeal: No. Decision on WL F. Outten Name: Jack Criminal ID: 92000786DI County: New Castle Sentence: Death (1994) appeal: A.2d 1291 on Decision Perez W.
Name: James ID: Criminal County: New Castle Imprisonment Life Sentence: (Feb. Moore, 3,1994) 207,1993, appeal: No. J. Decision on Dog Allen Red Name: James Criminal ID: 91001754DI County: New Castle Death Sentence: A.2d 298 appeal: Decision Rodriguez
Name:
Jose
*119
APPENDIX A
Criminal ID:
93001668DI
County:
New Castle
Imprisonment
Sentence:
.
Life
appeal:
466,1993,1994
Decision
(Nov.
on
Walsh,
29,1994)
No.
WL
J.
Reginald
Name:
N. Sanders
Criminal ID:
91010161DI
County:
(venue changed)
New Castle
Sentence:
Imprisonment
Life
appeal:
(1990)
Decision on
Decision on 1A.2d Name: Steven W. Shelton Criminal ID: 92000787DI County: New Castle Sentence: Death (1994) appeal:
Decision on
Decision on appeal No direct taken Name: Brian David Steckel Criminal ID: County: New Castle Sentence: Death appeal: (1998)
Decision on
Name:
Willie G. Sullivan
Criminal ID:
92K00055
County:
Kent
Sentence:
Death
(1994)
appeal:
Decision on
Name:
Taylor
Antonio L.
Criminal ID:
County:
Kent
Sentence:
Imprisonment
Life
appeal:
Decision on
687 APPENDIX A Dwayne
Name: Weeks ID: 92010167 Criminal County: New Castle Death Sentence: (1995) appeal: 653 266 Decision on A.2d Roy R. Name: Williamson ID: 93S02210DI Criminal County: Sussex Imprisonment Life Sentence: (1995) appeal:
Decision 669 95 on A.2d Wright
Name: M. Jermaine ID: Criminal County: New Castle Sentence: Death (1996) appeal:
Decision A.2d Craig
Name: A. Zebroski Criminal ID: County: New Castle Death Sentence: appeal:
Decision on A.2d COUNTY,
NEW CASTLE Defendant
Below, Appellant, Cindy
Peter DISABATINO and G. Disa wife,
batino, his and Daniel Dominelli Dominelli, wife,
and Maureen M. Below, Appellees.
Plaintiffs
No.
Supreme Court of Delaware. May
Submitted:
Decided: Aug. 116. See notes 27 and nying text. example, Kaye 119. For Dr. testified that "[Fa- hey] [Capano], was fearful of was not con- State, though 117. This is true even going go....” vinced that he was ever to let summation, importance referred to the of genuinely and that "she was fearful ... that 1/13/99, 15, 66, Lyons’ testimony. Tr. of things harm would come to her if she broke 207, 229. That reference must be viewed in rage off ... because she was worried about light reality ample that the State had 10/27/98, anger.” and Tr. of at 33-34. Dr. Lyons’ testimony. other evidence without Fahey’s Kaye also testified about character Compare present case with Barrow Fahey’s eating extensively about and testified 10/27/98, ("She 1246-47 Tr. of at 22 was disorder. (2000), in which we reversed conviction very very someone who was memorable ... a woman”); improper "particu- because the statement was friendly, polite young id. at 37- larly important prove Fahey Similarly, to the State’s effort to testified that Dr. Sullivan killing,” provided Capano sought intentional and a "neces- to end her involvement with "unhealthy” sary relationship and link” in the case. because the was State’s specific of ex- recounting description her testimony of presented The also State during conduct their amples of Fahey’s friends. Fahey’s sister and six of relationship and her characterization these witnesses psychotherapists, Like the “jealous.” “controlling” and Capano as Fa- conversations with testified about their First, Capano argues psycho- relationship Fahey’s hey concerning therapists’ testimony topics on these several Capano descriptions and her diagno- under the medical not admissible involving Capano.120 incidents hearsay to the rule in exception sis Court, In initial briefs before this his 803(4), of first raising question D.R.E. that all of the tes- Capano argued broadly whether that ex- impression concerning by Fahey’s psychothera- timony presented made for ception applies to statements under the pists and friends is inadmissible distinct purposes psychotherapy —as supplemental briefs hearsay rules. purposes made for from statements argument 2001 oral his June Second, ailments. diagnosing physical issue, however, before the Court on this psy- to the the statements argues carefully his hear- Capano specified more state- chotherapists Fahey’s similar to which say arguments and the evidence are not admissible ments to her friends applies. argues argument each State testimony is a “statement because this testimony is admis- disputed that all of the Fahey and there- memory or belief’ against the rule exceptions under sible the state of does not fall within fore evi- hearsay and is cumulative of similar Third, Capano exception. hearsay mind by stipulation. In dence that was admitted Fahey’s hearsay statements argues that event, if argues, there was any the State Capano, although concerning her fear of evidence, it was harm- admitting error this of mind ex- the state admissible under less error. admitted not have been ception, should Capano challenges to Capano raises several ease-in-chief. during State’s permit- was trial court’s admission of contends that State testimony until present ted to and friends by Fahey’s psychotherapists friend, 10/28/98, Fahey's Jill Mor- controlling "incredibly at 155-56. because he was 10/29/98, rison, thought Fahey possessive.” similarly at 17-18. In a Tr. of testified that vein, life, Fahey testified that Capano trying similar Dr. Sullivan control her Tr. was would have her 11/4/98, concerned that upset