Opinion
ID No. 0804009949.
Submitted: October 16, 2009.
Decided: November 3, 2009.
Upon Defendant's Motion to Declare the Death Penalty Statute Unconstitutional. Denied.
ORDER
Defendant Millard E.Price was indicted for First Degree Murder, as well as related offenses, in connection with the death of Keith K. Kirby. The State plans to seek the death penalty if the jury finds Defendant guilty of First Degree Murder. See 11 Del. C. § 4209. As the requisite statutory aggravating factor, the State intends to prove that Defendant has previously been found guilty of Reckless Endangering First Degree, which is a felony that constitutes a statutory aggravating circumstance under Delaware's hybrid capital sentencing scheme. Defendant asks the Court to declare the death penalty statute unconstitutional under the Sixth Amendment. For the reasons explained below, the Court finds § 4209 comports with the requirements of Apprendi v. New Jersey and Ring v. Arizona, as well as Delaware law. Defendant's motion is denied.
530 U.S. 466 (2000).
536 U.S. 584 (2002).
Issues. Defendant argues that the death penalty statute violates the Sixth Amendment right to trial by jury in two ways. First, Defendant challenges the fact that, if the State proves to a unanimous jury the existence a statutory aggravating circumstance beyond a reasonable doubt, it is the trial judge, not the jury, who will determine whether the aggravating circumstances outweigh the mitigating circumstances. According to Defendant, this determination must be made by a jury. Second, Defendant asserts that the result of the final weighing process must be found beyond a reasonable doubt rather than by a preponderance of the evidence. The State cites numerous cases that show that Delaware's sentencing system is constitutional.
Trial judge engages in the weighing process. In Apprendi v. New Jersey, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In Ring v. Arizona, the Court applied Apprendi to the Arizona death penalty sentencing statute and found it to be unconstitutional because it required a judge to make factual findings as a prerequisite to the imposition of the death penalty. The Court held that the Arizona statute violated the defendant's Sixth Amendment right to trial by jury.
530 U.S. 466 (2000).
Ring v. Arizona, at 603-604.
Id.
Following the issuance of Ring, Delaware's General Assembly amended 11 Del. C. § 4209. The amended statute requires that the existence of a statutory aggravator be found by the jury, or by the judge if sitting without a jury, beyond a reasonable doubt. § 4209 (e). The amended statute has also come attack but has been found to meet constitutional standards, as shown below. In Brice v. State, the Delaware Supreme Court accepted four questions of law certified under Supreme Court Rule 41. The Court made clear that under the amended statute the jury is required to find, unanimously and beyond a reasonable doubt, the existence of at least one statutory aggravating circumstance before the judge may consider imposing the death sentence. The Brice Court found the statute to be constitutional and to comport with Ring v. Arizona. The Court has not deviated from this position.
815 A.2d 314 (Del. 2003).
Id. at 322.
The Court in Swan v. State reaffirmed the constitutionality of our death penalty statute, stating that Brice had put to rest any issues pertaining to the factfinding role of the jury and the trial judge. "Once a jury finds unanimously and beyond a reasonable doubt, the existence of at least one statutory aggravating circumstance, the defendant becomes death eligible and Ring's constitutional requirement of jury fact-finding is satisfied." At that point, the trial judge, who is the final arbiter of the sentence, appropriately begins the weighing process.
Swan v. State, 820 A.2d 342, 359 (Del. 2003) (citing Brice v. State, 815 A.2d 314 (Del. 2003)).
In Starling v. State, the Court rejected the argument that the trial judge impermissibly makes the final sentencing decision. That decision cannot be made without the jury's finding of a statutory aggravator:
882 A.2d 747 (Del. 2005).
Although a judge cannot sentence a defendant to death without finding that the aggravating factors outweigh the mitigating factors, it is not that determination that increased the maximum punishment. Rather, the maximum punishment is increased by the jury's unanimous finding beyond a reasonable doubt of the statutory aggravator. At that point a judge can sentence a defendant to death, but only if the judge finds that the aggravating factors outweigh the [mitigating] factors. Therefore the weighing of aggravating circumstances against mitigating circumstances does not increase the punishment. Rather, it ensures that the punishment imposed is appropriate and proportional.
Id. at 757 (citations omitted) (emphasis added).
This quotation regarding the maximum punishment available leads naturally to a discussion of Blakeley v. Washington, which Defendant puts forth as support for his position. In Blakeley, the Court held that the state court's sentencing of the defendant to more than three years above the 53-month statutory maximum on the basis of the judge's finding of deliberate cruelty on the part of the defendant violated the defendant's right to trial by jury. Although not a death penalty case Blakely has relevance here because the issue pertained to a defendant receiving a "sentence greater than what state law authorized on the basis of the verdict alone." Our capital sentencing law requires a jury, not a judge, to make a unanimous finding regarding the existence of a statutory aggravator — that is the crucial finding which renders a defendant eligible for the death penalty and permits the trial judge to impose it. The Court finds that our death penalty statute is consistent with the principles set forth in Blakeley.
542 U.S. 296 (2004).
Id.
In Oritz v. State, the Delaware Supreme Court found that our hybrid system of sentencing, which provides for the jury to find the defendant death eligible and the judge to impose the death penalty, does not violate the right to trial by jury. The Court stated that Ortiz became death-eligible under Apprendi and Ring when his jury unanimously found beyond a reasonable doubt the existence of one of the statutory aggravating circumstances. The Court observed that under Brice v. State, Blakely v. Washington and United States v. Booker, the statutory structure of Delaware's capital sentencing procedure comports with the standard set forth by the federal Supreme Court. The Court finds that Delaware's sentencing statute is consistent with Ring's reminder that "[c]apital defendants, no less than non-capital defendants . . . are entitled to a jury finding of any fact on which the legislature conditions an increase in their maximum punishment."
Ortiz v. State, 869 A.2d 285 (Del. 2005).
542 U.S. 296 (2004).
543 U.S. 220 (2005).
Ortiz v. State, 869 A.2d 285, 305-306 (Del. 2005).
Ring v. Arizona, 536 U.S. at 584.
For all these reasons, the Court concludes that Defendant's argument that the jury must engage in the final weighing process is without merit.
Standard for the final weighing process. Section 4209(d) states that the trial judge will make a finding as to the aggravators and mitigators by a preponderance of the evidence. As recently as 2008, the Court in Gattis v. State found that the argument that the aggravating circumstances must outweigh the mitigating circumstances beyond a reasonable doubt overstated the Apprendi holding. Gattis relied on Brice, in which the Court was asked to determine whether a jury must find beyond a reasonable doubt that all aggravating factors found to exist outweigh all mitigating factors found to exist. In answering this question in the negative, Brice observed that the standard for the Court's weighing process is a preponderance of the evidence. This Court is satisfied that the preponderance of the evidence is the appropriate standard under the Sixth Amendment. It is a unanimous jury that finds beyond a reasonable doubt whether a defendant is death eligible, and the Delaware statute is therefore consistent with Apprendi v. New Jersey and Ring v Arizona.
Section 4209(d) provides in part:
"[T]he Court, after considering the findings and recommendation of the jury and without hearing or reviewing any additional evidence, shall impose a sentence of death if the Court finds by a preponderance of the evidence. . . that the aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to exist. . . ." (Emphasis added.)
Gattis v. State, 955 A.2d 1276, 1289 (2008).
Brice v. State, 815 A.2d at 318.
Id. at 322.
530 U.S. 466 (2000).
536 U.S. 584 (2002).
Defendant asserts in conclusory fashion that cases from other jurisdictions support his argument that the weighing process must be conducted under the beyond a reasonable doubt standard. Defendant has not taken into account that each of these states has a different capital sentencing statute and that each case raises different issues. Nor does he acknowledge that a state can choose to expand a defendant's rights beyond what is required by the Constitution by imposing a higher burden of proof on the state.
Defendant directs our attention to the following cases. In Woldt v. People, the Colorado Supreme Court held that a death penalty sentencing scheme which consisted of a judicial fact-finding process was unconstitutional under Apprendi. This is nothing like our statute and has no relevance to the issues at bar. In State v. Whitfield, the Missouri Supreme Court held that under Apprendi eligibility for the death penalty must be determined by a jury. This requirement is also part of Delaware's statute. In Johnson v. State, the Supreme Court of Nevada held that a statute violated the right to a jury trial in its provision for judges to make findings in a death penalty hearing when the jury was deadlocked. Delaware has no such provision, In Olson v. State, the Wyoming Supreme Court observed that a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty but remanded the case to the trial court because one of the aggravators was faulty. None of these cases sheds new light on the issue of whether the trial judge should conduct the weighing process by a preponderance of the evidence or by a reasonable doubt. This Court is satisfied that the Delaware statute, which mandates use of the preponderance standard, meets constitutional requirements under the Sixth Amendment right to trial by jury.
64 P.3d 256 (Colo. 2003).
107 S.W. 256 (Mo. 2003).
59 P.3d 450 (Nev. 2002).
Conclusion. in Starling v. State, the Delaware Supreme Court reiterated that under Delaware's amended statute, the jury makes a recommendation that "shall be given such consideration as deemed appropriate by the Court in light of the particular circumstances or details of the commission of the offense and the character and propensities of the offender. . . ." Our Supreme Court has found this provision to be in conformity with federal standards time and again because it is the jury that finds the defendant to be death-eligible. The right to trial by jury is not violated by the trial judge imposing the sentence after a unanimous jury has found the existence of a statutory aggravating circumstance. Nor is it violated by the final weighing process being conducted by a preponderance of the evidence. These decisions have been addressed and resolved by the Delaware Supreme Court, and Defendant has not raised any procedural or substantive arguments that would lead to a different conclusion.
882 A.2d 747 (Del. 2005).
11 Del. C. § 4209(d)(1).
The Apprendi Court reminded us that "the jury trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free ." It remains free in Delaware, and Defendant's assertions do not prove otherwise.
Apprendi, 530 U.S. at 498.
Defendant's motion for a declaratory judgment is DENIED. IT IS SO ORDERED.
ORDER
In this capital murder case, Defendant Millard E. Price has moved for an order compelling the State to provide Defendant with equal access to criminal records of the jury array or to preclude the State from possessing such records during jury selection. The State opposes the motion, arguing that Defendant has not shown that he will suffer any prejudice from not having the records because he can ask questions to the potential jurors about their involvement with crime.
By statute, Defendant is barred from having access to a juror's criminal history:
Notwithstanding any law or court rule to the contrary, the dissemination to the defendant or defense attorney in a criminal case of criminal history record information pertaining to any juror in such case is prohibited.
Title 11 Del. C. § 8513 (g) (2007).
Despite the clarity of § 8513 (g), Defendant argues that Charbonneau v. State indicated that a due process violation could be made on the proper showing. Yet Charbonneau found that the defendant's due process rights were not violated by the State's exclusive possession of the jurors' criminal information. The Court also stated that voir dire questions about jurors' involvement in past crimes could be asked prior to trial. A similar result was reached in McBride v. State.
904 A.2d 295, 319 (Del. 2006).
Id.
477 A.2d 174 (Del. 1984).
These principles still govern the issue raised in Defendant's motion to compel. Because Defendant will have the opportunity during voir dire to ask necessary questions, the Court finds that Defendant has not shown that his due process or equal protection rights will be denied by the State's exclusive possession of the jurors' criminal records.
For these reasons, Defendant's motion to compel is DENIED. IT IS SO ORDERED.
ORDER
In this capital murder case, Defendant Millard E. Price has moved to sever the first two counts, Murder First Degree and Possession of a Firearm During the Commission of a Felony, from the remaining 17 counts in the Indictment. He argues that joinder of all the counts against him would be unfairly prejudicial at trial. The State opposes the motion, arguing that the charges are properly joined and that Defendant has not established substantial prejudice. For the reasons explained below, the motion for severance is denied.Background. To resolve the motion to sever, the Court will consider the following facts as alleged by the State. On April 9, 2008, Defendant drove to 7513 W. Newton Street in Bridgeville, Delaware, looking for Deborah Sears. When Defendant entered the house he had a firearm in his possession. As he came inside, Elenor Manzanares and Glenn Morris were in the front living room, located immediately inside the front door. Gary Hastings and Nicole Eagleson were in the rear living room, which was separated from the front living room only by a sheet. Once inside, Price demanded to know w here Sears was. Glenn Morris told Price to leave the gun outside if he did not intend to use it. Price replied that he did intend to use it and then fired the gun into the floor of the front living room. Still armed, Defendant pulled down the sheet between the two rooms and demanded that Eagleson and Hastings tell him where Sears was.
State v. Charbonneau, 2003 WL 22232811 (Del. Super.) (motions to sever counts of an indictment involve analysis of the evidence); State v. Garden, 2000 WL 33114325 (Del. Super.) (stating that severance decisions are fact-intensive).
Thereafter, Defendant demanded a cell phone so he could call Sears. Glenn Morris called her twice but did not get an answer. Defendant proceeded to go upstairs to the second floor, followed by Glenn Morris. Oliver Morris came down the stairs, passing Defendant on the way. Glenn Morris turned around and came downstairs with Oliver Morris. Price entered the front bedroom where Sears was hiding in a pile of clothes on the floor. She was alone in the room. Having previously found Sears hiding in the closet of that room, Defendant went to the closet and yelled, "Are you in there?" He then fired his gun at the closed closet door.
Subsequently, he went to the back bedroom and kicked open the locked door. Inside he found Keith Kirby and Leslie Banks. Defendant looked at the two of them and said, "I should just go ahead and shoot your ass." He then shot Kirby in the chest, and Kirby died moments later.
Discussion. Pursuant to Superior Court Criminal Rule 8(a), two or more criminal offenses may be joined in the same indictment if one of the following circumstances exists: (1) the offenses are of the same or similar character; (2) the offenses are based on the same act or transaction; (3) the offenses are based on two or more connected acts or transactions; or (4) the offenses are based on two or more acts constituting parts of a common scheme or plan. The rule of joinder is designed to promote judicial economy and efficiency, so long as the defendant's rights are not compromised by the joinder. Rule 8(a) must be read in conjunction with Rule 14, which gives the Court discretion to order severance if it appears that either party will be prejudiced by joinder of either offenses or defendants. The defendant bears the burden of showing prejudice sufficient to require severance, and a hypothetical assertion of prejudice is not enough. The decision whether or not to grant a motion for severance is within the discretion of the Court.
Mayer v. State, 320 A.2d 713 (Del. 1974).
State v. Strickland, 2007 WL 949481 (Del. Super.); State v. Garden, 2000 WL 33114325 (Del. Super.).
Bates v. State, 386 A.2d 1139 (Del. 1978).
Id. at 1141.
If the Court finds joinder appropriate under Rule 8 (a), the Court must then determine whether the defendant would be prejudiced by the joinder. A defendant might suffer prejudice from joinder because (1) a jury may improperly infer a general criminal disposition on the part of the defendant from the multiplicity of charges; (2) a jury may accumulate evidence presented on all offenses charged in order to justify a finding of guilt of particular offenses; or (3) the defendant may be subject to embarrassment or confusion in attempting to present different defenses to different charges. On the other hand, where the offenses charged are of the same general nature and give evidence of a modus operandi, severance may be denied even in the face of obvious prejudice to the defendant. The test for determining whether Defendant has met his burden of showing prejudice is whether joinder is so manifestly prejudicial that it outweighs the dominant concern with judicial economy and compels the Court's discretion to sever.
State v. Strickland, 2007 WL 949481 (Del. Super.).
State v. McKay, 383 A.2d 260 (Del. 1978).
Id.
State v. Howard, 1996 WL 190045 (Del. Super.).
It is clear from the facts as alleged in the Indictment and in the State's response to the motion that Defendant's actions, although constituting separate acts, were of a similar nature, which can be characterized as threatening and terrifying. According to the State Defendant threatened everyone who crossed his path as he searched the house for Deborah Sears. He yelled, made demands about Deborah Sears and fired his gun into the floor and into the closet door. Unfortunately his actions culminated in a third gunshot which killed Keith Kirby. The Court finds that the acts alleged in the indictment are of a similar general character, involve a similar course of conduct and occurred within a brief span of time. Thus they are appropriately joined in one indictment.
Coffied v. State, 794 A.2d 588 (Del. 2002).
The next question is whether Defendant has shown a reasonable probability of substantial prejudice if the charges are not severed for trial.
Bates, 386 A.2d at 1139.
Defendant argues first that the jury will cumulate the evidence and thus find him guilty when they would not so find if the charges were severed. The Court finds that trying these charges together appears to be reasonable because they took place in one location in a short time frame and were all related to Defendant's desire to find Deborah Sears. In multiple trials, the evidence of the other crimes would be admissible to show intent, plan, knowledge and absence of mistake in the conduct of the charged crimes. That is, multiple trials would not prevent separate juries from seeing and hearing about all the crimes. Defendant also asserts that without severance the jury would have to try to overcome the emotion caused by the gruesomeness and quantity of the evidence, but he does not suggest a way of avoiding it.
The argument that Kirby's death was too gruesome to be joined with the aggravated menacing charges is not persuasive. Accepting it would imply that Defendant cannot receive a fair trial in a separate proceeding focused only on the events of April 9, 2008. Any murder is difficult. Juries are fully capable of filtering the emotion out of grisly evidence, such as autopsy photographs, to reach decisions on a proper basis with appropriate instructions. On these facts, there is no way around presenting the entire story.
Defendant also asserts that the aggravating menacing charges regarding Leslie Banks, the victim's partner, are too emotionally charged to be tried with the Murder charge and would be subject to cumulation if tried together. Again, a jury can properly be instructed. These two offenses are closely intertwined and cannot be tried separately, because Mr. Banks was a witness to the shooting and held the victim in his arms as he died. On the issue of cumulation, Defendant also objects to the number of witnesses the State intends to call, but that list is not final and the Court need not address it.
Second, Defendant argues that the jury would improperly use the evidence of one crime to infer a general pattern of criminal behavior. Again, the Court observes that parsing out the charges between different trials would not prevent each jury from hearing the whole story because evidence of the other crimes would be necessary for the State to present a credible case in each trial. These crimes are so inextricably intertwined that they should be tried to one jury. Furthermore, the Delaware Supreme Court has affirmed this Court's denial of severance where the defendant engaged in a "continuous spree of related criminal conduct" that occurred in the course of one evening. This is a case of related criminal activity that took place in less than one evening. For the case to make sense, the crimes need to be seen together, as part of a course of related criminal conduct.
McDonald v. State, 307 A.2d 796 (Del. 1973).
Downes v. State, 1996 WL 145236 (Del. Supr.).
Third, Defendant asserts that he will suffer embarrassment or confusion in presenting different defenses to different charges. However, Defendant does no more than make a conclusory assertion, which, like hypothetical prejudice, is insufficient.
State v. Charbonneau, 2003 WL 222328111 (Del. Super.).
Defendant also asserts that he could not receive a fair trial without severance of Counts 1 and 2 if he asserts multiple defenses to the other charges or argues that the State has not shown criminal intent. As to multiple defenses, unless they are conflicting defenses, which Defendant does not allege, he is not prejudiced. On these facts, the Court rejects the argument that Defendant would be prejudiced by arguing accident to one charge and recklessness to another charge. He seems to suggest that explaining the various states of minds would be too much for a jury and therefore prejudicial to him. However, juries manage this task every day, and it is not rendered unfair because it is difficult or the evidence is gruesome. The Court finds no merit in Defendant's argument that he would suffer substantial prejudice by going to trial on all charges. Instead, the Court finds that the charged offenses are so inextricably intertwined so as to make proof of one of the crimes impossible without proof of the others. Conclusion. Having considered Defendant's arguments, the Court finds that the charges are properly joined and that Defendant has not borne his burden of showing substantial prejudice from the joinder. When a defendant's claims of prejudice are unsubstantiated, the interests of judicial economy outweigh the defendant's interests. The Court concludes that no reasonable probability exists that Defendant will suffer substantial injustice if the charges are tried together.
McDonald v. State, 307 A.2d 796 (Del. 1973).
State v. Hammons, 2001 WL 172919 (Del. Super.).
For all these reasons, Defendant's motion for severance must be and hereby is DENIED. IT IS SO ORDERED.