Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THOMAS J. CAPANO, Petitioner, v. THOMAS CARROLL, Warden, et al., Respondent. : : : : Civil Action No. 06-58 *** : : :

PETITIONER'S OPENING BRIEF IN SUPPORT OF PETITION FOR HABEAS CORPUS

JOSEPH M. BERNSTEIN (DE Bar #780) 800 N. King Street - Suite 302 Wilmington, DE 19801 302-656-9850 302-656-9836 (Fax) E-mail: [email protected] Attorney for Petitioner Dated: February 20, 2007

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TABLE OF CONTENTS PAGE NATURE AND STAGE OF PROCEEDINGS SUMMARY OF ARGUMENT STATEMENT OF FACTS ARGUMENT I. THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHTS UNDER THE FOURTEENTH AMENDMENT, AS ESTABLISHED IN BECK v. ALABAMA, 447 U.S. 625 (1980), WHEN IT REFUSED THE DEFENSE'S REQUEST TO INSTRUCT THE JURY ON LESSER INCLUDED OFFENSES TO THE INDICTED CHARGE OF FIRST DEGREE MURDER II. THE ADMISSION OF FAHEY'S HEARSAY STATEMENTS TO HER PSYCHOTHERAPISTS AND HER FRIENDS VIOLATED CAPANO'S RIGHTS UNDER THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION III. THE PROSECUTION'S CROSS-EXAMINATION OF CAPANO CONCERNING POST-ARREST SILENCE VIOLATED HIS RIGHTS UNDER THE FIFTH AMENDMENT AND DEPRIVED HIM OF A FUNDAMENTALLY FAIR TRIAL CONCLUSION CERTIFICATE OF SERVICE 1 3 4

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TABLE OF AUTHORITIES CASES Albrecht v. Horn, 471 F.3d 435 (3d Cir. 2006) Anderson v. Charles, 447 U.S. 404 (1980) Beck v. Alabama, 447 U.S. 625 (1980) Brecht v. Abrahamson, 507 U.S. 619 (1993) Brown v. Folino, 179 Fed. Appx. 845 (3d Cir. 2006) California v. Green, 399 U.S. 149 (1970) Capano v. State, 781 A.2d 556 (Del. 2001), cert. denied , 536 U.S. 958 (2002) Capano v. State, 889 A.2d 968 (Del. 2006) Chao v. State, 604 A.2d 1351 (Del. 1992) Chapman v. California, 386 U.S. 18 (1967) Cline v. State, 720 A.2d 891 (Del. 1998) Coleman v. Thompson, 501 U.S. 722 (1991) Colon v. State, 1994 Del. LEXIS 326 (Del. 1994) Coppola v. Powell, 878 F.2d 1562 (1st Cir.), cert. denied, 493 U.S. 969 (1989) Crawford v. Washington, 541 U.S. 36 (2004) Davis v. Washington, 126 S.Ct. 2266 (2006) Delaware v. Van Arsdall, 475 U.S. 673 (1986) Doyle v. Ohio, 426 U.S. 610 (1976) Duonnolo v. State, 397 A.2d 126 (Del. 1978) Forrest v. State, 721 A.2d 1271 (Del. 1999) Gattis v. State, 637 A.2d 808 (Del. 1994) Griffin v. California, 380 U.S. 609 (1965) Gutierrez v. State, 842 A.2d 650 (Del. 2003) Hall v. State, 431 A.2d 1258 (Del. 1981) i PAGE 37 61 passim 43,58 51 36 passim 2 25 49,50 29 56 29 59 38 38 50 57 24 37 38,40,41 57 18 19,20,22

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CASES Harris v. Reed, 489 U.S. 255 (1989) Hassine v. Zimmerman, 160 F.3d 941 (3d Cir. 1998) Henry v. State, 805 A.2d 860 (Del. 2002) Holloway v. Horn, 355 F.3d 707 (3d Cir. 2004) Hooks v. Ward, 184 F.3d 1206, (10th Cir. 1999) Hopkins v. Reeves, 524 U.S. 88 (1998) Hopper v. Evans, 456 U.S. 605 (1982) Idaho v. Wright, 497 U.S. 805 (1990) Jenkins v. Anderson, 447 U.S. 231 (1980) Kastigar v. United States, 406 U.S. 441 (1972) Keller v. Larkins, 251 F.3d 408 (3d Cir. 2001) Lesko v. Owens, 881 F.2d 44 (3d Cir. 1989) Lilly v. State, 649 A.2d 1055 (Del. 1994) Miranda v. Arizona, 384 U.S. 436 (1966) Maryland v. Craig, 497 U.S. 836 (1990) Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir. 1999) (en banc), cert. denied, 528 U.S. 824 (1999) Mitchell v. Esparza, 540 U.S. 12 (2003) Monroe v. State, 652 A.2d 560 (Del. 1995) Ohio v. Roberts, 448 U.S. 56 (1980) O'Sullivan v. Boerckel, 526 U.S. 838 (1999) People v. LaLone, 437 N.W.2d 611 (Mich. 1989) Pitts v. Anderson, 122 F.3d 275 (5th Cir. 1997) Pointer v. Texas, 380 U.S. 400 (1965) Ring v. Arizona, 536 U.S. 584 (2002) Schad v. Arizona, 501 U.S. 624 (1991) ii

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CASES Slater v. State, 606 A.2d 1334 (Del. 1992) Smith v. State, 1996 Del. LEXIS 330 (Del. 1996) Spaziano v. Florida, 468 U.S. 447 (1984), State v. Barone, 852 S.W.2d 216 (Tenn. 1993) State v. Capano, 1998 Del. Super. LEXIS 377 (Del. Super. 1998) State v. Capano, 1998 Del. Super. LEXIS 319 (Del. Super. 1998) State v. Capano, 1999 Del. Super. LEXIS 541 (Del. Super. 1999) State v. Capano, 2005 Del. Super. LEXIS 69 (Del. Super. 2005) State v. Magner, 1997 Del. Super. LEXIS 45 (Del. Super. 1997) State v. MacDonald, 598 A.2d 1134 (Del. Super. 1991) State v. Moyer, 387 A.2d 194 (Del. 1987) State v. Porter, 587 A.2d 188 (Del. Super. 1990) State v. Wood, 881 P.2d 1158 (Ariz. 1994), cert. denied, 515 U.S. 1147 (1995) State v. Zimmerman, 829 P.2d 861 (Idaho 1992) United States v. Brown, 490 F.2d 758 (D.C. Cir. 1973) United States v. Burson, 952 F.2d 11961 (10th Cir. 1991), cert. denied, 503 U.S. 997 (1992) United States v. Lopez, 340 F.3d 169 (3d Cir. 2003) United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir. 1987) Villot v. Varner, 373 F.3d 327 (3d Cir. 2004) Wainwright v. State, 504 A.2d 1096 (Del. 1986) White v. Illinois, 502 U.S. 346 (1992) Williams v. Taylor, 529 U.S. 36 (2000) STATUTES AND COURT RULES U.S. Const. Amend. V iii

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STATUTES AND COURT RULES U.S. Const. Amend. VI 28 U.S.C. §2254(d) 28 U.S.C. §2254(e)(1) Delaware Supreme Court Rule 8 11 Del.C. §206 11 Del.C. §231(c) 11 Del.C. §231(d) 11 Del.C. §307(a) 11 Del. C. § 631 11 Del. C. § 632 11 Del. C. § 635 11 Del.C. §636(a) 11 Del.C. §4209 11 Del.C. §4209(d) 11 Del.C. §4209(e)(1)(u) D.R.E. 801(c) D.R.E. 802 D.R.E. 803(3) D.R.E. 803(4) MISCELLANEOUS Delaware Criminal Code with Commentary, 15-16 (1973) Delaware Criminal Code With Commentary, 101 (1973) Dictionary of Medical Terms, (Barons 3d ed. 1994) McCormick On Evidence, §292 (1984) Robinson, Criminal Law Defenses, §63, pp. 269-271 & n.4 (1984) iv

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MISCELLANEOUS J. Weinstein & M. Berger, Weinstein's Evidence, ¶803(4)[02] (4th Ed. 1996) J. Weinstein & M. Berger, Weinstein's Evidence, ¶401[10] (1996) Weinstein's Federal Evidence, §803.09[8] (2d Ed. 2001) Weissenberger, Federal Rules of Evidence, §803.19

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NATURE AND STAGE OF PROCEEDINGS The Petitioner, Thomas J. Capano ("Capano") was indicted in the state court on a single charge of capital First Degree Murder arising from the death of Anne Marie Fahey ("Fahey"). The "guilt phase" of Capano's trial commenced on October 6, 1998 and concluded on January 17, 1999 with a verdict of the jury that Capano was guilty of First Degree Murder. The case then proceeded to the "penalty hearing" phase, which lasted an additional five days. State v. Capano, 1999 Del. Super. LEXIS 541, *1 (Del. Super. 1999) ("Capano I"). In the penalty phase, the State alleged only one "statutory aggravating circumstance" ­ that "the murder was premeditated and the result of substantial planning." Capano I, at *9-*10. In the penalty hearing, the jury voted 11 to 1 that the State had established the alleged sole statutory aggravating circumstance, and voted 10 to 2 that the aggravating circumstances outweighed the mitigating circumstances. Capano I, at *1. In sentencing Capano, the trial judge also found that the State had established the existence of the premeditation/substantial planning statutory aggravating circumstance beyond a reasonable doubt. Capano I, at *20-*22. The trial judge also found that the aggravating circumstances outweighed the mitigating circumstances and therefore sentenced Capano to death. Capano I, at *25-*29. On August 10, 2001, Capano's conviction and death sentence were affirmed on direct appeal by the Supreme Court of Delaware. Capano v. State, 781 A.2d 556, 670 (Del. 2001) ("Capano II"). Capano thereafter filed a Petition for Writ of Certiorari to the United States Supreme Court. The Petition was denied on June 28, 2002. See, Capano v. Delaware, 536 U.S. 958 (2002). On June 3, 2003, Capano filed a Motion for Post-Conviction Relief in the Delaware Superior Court under Superior Court Criminal Rule 61 (hereinafter "Rule 61 Motion"). In the Rule 61 Motion, Capano asserted that his death sentence should be vacated based on Ring v. Arizona, 536 U.S. 584 (2002). The Rule 61 Motion also contained claims of ineffective assistance of counsel in the trial. An evidentiary hearing was held in the Delaware Superior Court concerning the ineffective assistance of counsel claims. On March 9, 2005, the Superior Court issued its decision, which denied Capano's Rule 61 claims. State v. Capano, 2005 Del. Super. LEXIS 69 ("Rule 61 Decision"). -1-

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Capano filed a timely appeal to the Delaware Supreme Court from the Rule 61 Decision. On January 10, 2006, the Delaware Supreme Court vacated Capano's death sentence and remanded the case for a new penalty hearing. In all other respects, the Rule 61 Decision was affirmed. See, Capano v. State, 889 A.2d 968, 968-969 (Del. 2006) ("Capano III").1 This Petition for Habeas Corpus Relief was filed on January 30, 2006. (A-1). The State has filed an Answer to the Petition (D.I. No. 12) and the parties have agreed that an evidentiary hearing is not required for disposition of the issues raised in the Petition.2 This is the Petitioner's Brief in support of the Petition.

After the case was remanded to the Superior Court for a new penalty hearing, the State elected not to proceed with a new penalty hearing. Capano was thereafter re-sentenced to life imprisonment in accordance with 11 Del.C. §4209. (State's Answer, p.2). In the Habeas Petition, Claim No. 2 involved a claim that Delaware's death penalty statute was unconstitutional and Claim No. 3 involved a claim that a retrial of the penalty phase of the case would violate Capano's rights under the Double Jeopardy Clause of the Fifth Amendment. Petitioner agrees that these claims are now moot in light of the State's decision not to seek a new penalty hearing. Capano is also not pursuing the ineffective assistance of counsel claims set forth in Claim No. 6 in the Habeas Petition. -22

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SUMMARY OF ARGUMENT 1. In a prosecution for capital murder, a defendant is entitled, under the Due Process Clause of the Fourteenth Amendment, to have the jury instructed on lesser included offenses if there is any evidence presented in the trial to warrant giving such instructions under state law. See, Beck v. Alabama, 447 U.S. 625 (1980). The decision in Capano II that Capano was not entitled to instructions on lesser included offenses was an unreasonable application of the rule in Beck. 2. The rulings in Capano II that the admission of Fahey's hearsay statements to her friends, relatives and psychotherapists violated Capano's rights under the Confrontation Clause of the Sixth Amendment and also violated his right to a fair trial under the Fourteenth Amendment. 3. The questioning of Capano on cross-examination concerning his pre-arrest and post-arrest silence violated his rights under the Fifth Amendment to the United States Constitution.

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STATEMENT OF FACTS Background Facts Anne Marie Fahey ("Fahey") was the scheduling secretary for Delaware Governor Thomas Carper. She was last seen alive on Thursday, June 27, 1996, when she went to dinner with Thomas Capano in Philadelphia. Her family reported her missing on June 30, 1996. See, State v. Capano, 1998 Del. Super. LEXIS 319, at *5. The defendant, Thomas J. Capano ("Capano") was a prominent Delaware attorney and former managing partner at the Wilmington office of the law firm of Saul, Ewing, Remick and Saul ("Saul Ewing").3 Capano was married to Kathleen Capano, although they were separated at the time of his arrest. (A91-A92). Capano also had three brothers (Louis Capano, Jr., Gerard "Gerry" Capano and Joseph Capano) and one sister, Marian (Capano) Ramunno.4 (A144.1-A144.2). After a lengthy investigation that targeted Capano from the outset, the State charged Capano with first degree murder.5 The State's Theory of the Case The State charged Capano with First Degree Murder6 even though Fahey's body was never found and even though the State conceded that it was unable to establish how Fahey had died or that her death had come about as a result of Capano's intentional actions. (A-173). With no direct or physical evidence to support its allegation that Capano had intentionally caused Fahey's death, the State constructed a wholly circumstantial theory of the case, which rested on three broad categories Capano's legal career also had included working as a Deputy Attorney General, as City Solicitor for the City of Wilmington, and as legal counsel to former Governor Michael Castle. Sentencing Decision, 1999 Del. Super. LEXIS 541 *2. Two of Capano's brothers, Louis and Gerry, also became ensnared in the investigation of Fahey's disappearance. Ultimately, they both entered into plea agreements with the federal government and provided the critical information that led to Thomas Capano's arrest. In July 1996, the Federal Bureau of Investigation ("FBI") and a federal Grand Jury in Delaware began a kidnaping investigation into Fahey's disappearance. On August 5, 1996, Capano was formally notified that he was a "target" of that investigation. See, State v. Capano, 1998 Del. Super. LEXIS 377 *1-*2. First Degree Murder is defined as "intentionally causing the death of another person". 11 Del.C. §636(a). -46 5 4 3

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of evidence: (a) evidence of an alleged "motive;" (b) evidence of an alleged "plan;" and © evidence of "consciousness of guilt." (a) Evidence of Motive Fahey began dating Capano in March 1994. (A24-A25). She kept this relationship, or at least its intimate nature, hidden from most of her friends and her family, and even from the psychotherapist she was seeing at the time. (A-8); (A-22); (A-117); (A-64). Her personal diaries, which were discovered by her sister, Kathleen Fahey-Hosey, in her apartment after her disappearance, reflected that, throughout most of 1994 and 1995, Fahey was very much in love with Capano, whom she then characterized as "kind, caring and responsible." (A23-A25); (A-27); (A-76). The State's "motive" evidence consisted entirely of statements Fahey allegedly made to her family, friends and psychotherapists. This largely hearsay testimony was designed to establish that Capano had a "bad" character -- that he was, as Fahey had written in her diary, (State's Ex. 18) (A181A182), a "controlling, manipulative, insecure [and] jealous" man, whose reaction to her attempts to end their relationship, and to seeing her involved in a serious relationship with another man, Michael Scanlan, somehow culminated in a premeditated murder. In September 1995, Fahey was introduced to Michael Scanlan by Governor Carper. (A8-A9). Fahey's friends and family testified that, after a rocky beginning, she fell in love with Scanlan. (A79). But there were problems in the relationship. (A79-A80). Fahey suffered from a serious eating disorder. Although Capano knew about Fahey's illness, and was actively trying to get her help, Fahey hid her disorder from Scanlan. (A-80). She also was terribly afraid that Scanlan would learn of her relationship with Capano, a married man, and kept this a secret from him as well. (A-52). The State's witnesses testified that, after Fahey began dating Scanlan, she broke off her relationship with Capano, who then became upset with Fahey and continued to pursue her. (A115A117). One of Fahey's psychotherapists, Dr. Michelle Sullivan, who was seeing Fahey in connection with her eating disorder, testified that, in the period between February and early April, 1996, Fahey spoke to her often about how she felt "controlled" by Capano. (A-42). An entry in -5-

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Fahey's diary, dated April 7, 1996, was relied on by the State as its most pivotal piece of evidence reflecting Fahey's feelings towards Capano during this period. In her diary, Fahey wrote that "I have finally brought closure to Tom Capano...what a controlling, manipulative, insecure jealous maniac." (State's Ex. 18) (A-181). Although that diary entry was made just four months before Fahey disappeared, there was also extensive evidence that subsequent to that diary entry, the relationship between Fahey and Capano had changed dramatically. The e-mails introduced into evidence during this period of time reflect, in the words of the defense psychiatric expert, Dr. Carol Tavani, "a very warm, affectionate, cordial relationship," (A-143), with frequent mention of dinner dates, chatty conversations about trivia and family, and much discussion of Fahey's eating disorder.7 Several of Fahey's friends admitted that Fahey and Capano had settled down and resolved the tension in their relationship. (A58). According to Fahey's best friend, Kim Horstmann, they had "gotten to a common level of friendship, a nice friendship. And she was comfortable with the friendship she thought had developed." (A-81) The relationship was so close that, on June 12, 1996, just two weeks before her death, when Fahey passed out at work, she called Capano, not Scanlan, to come pick her up and take her home. (A-84); (A 88-A89). Although the State contended that Capano had been planning Fahey's murder from as early as February, 1996, there was substantial contradictory evidence showing that, throughout the Spring of 1996, Capano was deeply concerned about Fahey's eating disorder and was actively trying to get her help. During this period, Fahey was seeing Dr. Sullivan, the eating disorder specialist, and Capano helped Fahey pay Dr. Sullivan's bills. (A-47). E-mails from this period show that Capano

The State introduced e-mails between Capano and Fahey, recovered from Capano's hard drive, that reflected the intensity of their relationship during January and February 1996. These emails are reproduced in the Appendix to Appellant's Brief in the direct appeal, pp. 149-233. (D.I. 16). Although Capano and Fahey continued to see each other, Fahey was conflicted in her feelings and Capano was distressed by her efforts to distance herself from him. Capano was not invited to Fahey's surprise birthday party on January 27, 1996, and there are e-mails reflecting that he pressed her about her birthday plans. He was also upset that she attended the Grand Gala with Scanlan on January 27, 1996. (A-52). -6-

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became increasingly concerned about this problem.8 Jill Morrison, another of Fahey's good friends, testified to Capano's concern over Fahey's deteriorating condition. (A-56). Kim Horstmann testified that, late in May, Capano met with her twice, very distressed over Fahey's condition, and urged her to help him intervene in getting Fahey treatment. (A81-A82). Those of Fahey's friends and the psychotherapists who knew of her relationship with Capano also acknowledged that Capano had never physically abused Fahey. Horstmann testified that Fahey never told her that she was afraid of Capano. (A-78). In fact, Fahey called him a "perfect gentleman." (A-85). Dr. Sullivan's notes began with an indication of "no violence" in the relationship with Capano. (A-37.2). Dr. Sullivan also acknowledged that Fahey said many good things about Capano ­ that he was "generous" and "supportive" and made her feel "secure." (A37.4). (b) Evidence of Planning and Premeditation Because the State had no evidence that would circumstantially establish Capano's state of mind on the night of June 27, it set out to prove that Capano had planned Fahey's murder well before that night. Here, the State's key witness was Capano's brother, Gerry Capano. During the course of its investigation, the FBI searched Gerry's house and car and had seized marijuana, cocaine and an arsenal of weapons. (A-118). The Division of Child Protective Services had initiated an investigation to determine if Gerry's children were at risk. (A-118). That threat, and the related threat of federal prosecution on drug and weapons charges, induced Gerry to enter into a guilty plea to federal criminal charges and to agree to cooperate with the federal government. (A119-A120).

See generally, (D.I. 16) , Appendix to Appellant's Opening Brief - Direct Appeal (State's Ex. 53). For example, on May 20, 1996, Fahey confided to Capano that her "weight ha[d] dropped 6 pounds," and that she "nearly fainted in Church yesterday." (A-183). Capano responded the same day, expressing alarm and recommending that she call Dr. Sullivan. (A-184). The very next day, Capano again urged Fahey to call Dr. Sullivan. (A-185). On June 3, 1996, he ended his e-mail with a reminder to Fahey to "take your vitamins." (A-186). These are hardly the words of a man planning a murder. -7-

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At trial, Gerry testified that, in February 1996, his brother Tom asked if he could borrow $8,000 because he was being extorted by "a guy and a girl," who were threatening to ruin his career and hurt his children. Gerry lent his brother the money, which Tom paid back within several days. According to Gerry, Tom also asked him if he could use his boat if he ever had to "do something" to these people. (A95-A96). Sometime after that, according to Gerry, Tom asked to borrow a handgun for protection. At trial, Gerry admitted that Tom had returned the gun, without it having been fired, well before Fahey's disappearance. (A93-A95). Thomas Capano, who testified in his own behalf, disputed Gerry's version of what had taken place in February 1996. Although Capano admitted that he borrowed $8,000 in cash from Gerry, he gave the money back to him a few days later. (A-161). According to Tom, he had borrowed the $8,000 from Gerry as part of $25,000 in cash he had offered to Fahey to go into a residential treatment program for her eating disorder. (A-151). Capano also testified that he never told Gerry why he needed the money and that it was Gerry who speculated that Tom was in some kind of trouble and offered to get a "leg breaker" to help him. Moreover, according to Tom Capano, it was Gerry's idea that he needed a gun, which he reluctantly took, but returned to Gerry about a month later. (A145-A150). Gerry also testified that, on the morning of June 28, 1996, Tom asked him to help dispose of a body that was in a large cooler at his residence.9 They drove to Avalon, New Jersey, where Gerry kept his boat, loaded the cooler onto the boat, sailed east into the Atlantic Ocean some 60-70 miles, and then Tom pushed the cooler over the side of the boat. The cooler, however, did not sink, so Gerry shot at it with a gun that he kept on the boat. Gerry also claimed to have seen part of a

Capano had purchased the cooler in April, 1996, and paid for it with his credit card. (A145). He testified that he bought the cooler as a present for his brother Gerry, intending to give it to him over the July 4th holiday. (A 145-A146). Joseph Capano testified that sometime during MarchApril 1996, he had a conversation with Tom about Tom wanting to buy a gift for Gerry and suggested that Tom buy a cooler for Gerry's boat. (A139-A140). -8-

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human foot sinking into the ocean while the cooler, with the lid open, drifted away from the boat. (A96-A103).10 Gerry conceded that in the days preceding June 28, 1996, he had not spoken to or met with Tom about whether he would be available to assist him in disposing of a body. Gerry testified that his meeting with Tom on June 28 was not prearranged and that Tom did not know if Gerry would even be home that morning. (A-108) In addition, Gerry admitted, on cross-examination, to a message he had left on his mother's answering machine, after he had testified at the Proof Positive Hearing, in which he stated that he would make up testimony against his own brother in order to avoid prison: Do you really think that I would go to jail for 12 fucking years. If you thought I was bad on the stand, God fucking help you if this goes to trial. I'll think up even more shit to help my ass out of fucking jail. And I'll make up fucking shit as I go along to keep Tommy in there for fucking life. I hate him. (A-109). The other evidence of a "plan" was provided by Debby MacIntyre, whose apparent suicide attempt, Capano testified, had precipitated Fahey's death. Capano had known MacIntyre for twenty years and they had been involved in a romantic relationship for 17 years, including the time period when Capano was involved with Fahey. (A121.1). In September, 1996, before Capano was arrested, MacIntyre testified before a federal grand jury investigating Fahey's disappearance, but she did not incriminate Capano. (State's Ex. 144).11 MacIntyre was interviewed again by the police on January 28, 1998, just a few days before Capano's Proof Positive Hearing. During that interview, MacIntyre was asked if she owned any handguns. She stated that she had purchased a small handgun "a few years ago," in the Spring of'

There was evidence that a cooler with what appeared to be bullet holes was found by a man fishing off the Jersey shore on the July 4th weekend of 1996. (A-138). Excerpts from MacIntyre's Grand Jury testimony are reproduced in the Appendix to Appellant's Opening Brief (D.I. 16) in the direct appeal, pp. 86, et seq. -911

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1995, for self-defense, but had subsequently taken it apart and thrown it away. (State's Ex 147).12 She denied that Capano was with her when she bought the gun, denied ever having fired it, and denied ever showing or giving the gun to Capano. (State's Ex 147).13 After the Proof Positive Hearing, at which MacIntyre did not testify, she hired a new attorney, Thomas Bergstrom. On February 27, 1998, MacIntyre and Bergstrom met with prosecuting authorities and entered into an agreement whereby the government agreed not to prosecute her in exchange for her cooperation in the Fahey investigation. See, State v. Capano, supra, 1998 Del. Super. LEXIS 377, at *3-*6. After signing the immunity agreement, MacIntyre told the police that, on May 13, 1996, at Capano's request, she had accompanied Capano to Miller's Gun Shop, purchased a handgun, and gave the gun to Capano, who had been waiting outside the store. (A-124); (A128-A132). There was no evidence, however, that the gun purchased by MacIntyre was the murder weapon. (c) Evidence of Consciousness of Guilt This final category of evidence, which was largely undisputed by the defense at trial, related the steps taken by Capano after the killing to dispose of physical evidence that might link him to Fahey's disappearance. This evidence included Gerry's testimony about the disposal of Fahey's body, (A 96-A103), and of removing a loveseat from Capano's house and placing it in a dumpster. (A-105). Louis Capano, another brother who testified pursuant to a cooperation agreement, (A110), testified that, on June 30, 1996, Capano told him that he and Gerry had disposed of a loveseat, which had Fahey's blood on it. According to Louis, Capano told him that Fahey had slit her wrists at his house, but that he took her home afterwards. (A111-A112). Louis testified that Capano asked

Excerpts from MacIntyre's interview with the police are reproduced in the Appendix to Appellant's Opening Brief (D.I. 16) in the direct appeal, pp. 114, et seq. During this interview, MacIntyre was shown a receipt for a gun purchase which indicated that she had bought a gun at Miller's Gun Shop in May 1996. She then agreed that she had purchased a gun from Miller's at that time. (State's Ex 147). -1013

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him to have the dumpster emptied, which he did.14 (A-113). There was also evidence that Capano had purchased a new carpet for his rented house on June 29, 1996. Capano's housekeeper testified that when she cleaned his house on July 22, 1996, she noticed a new rug and different furniture. (A137). Finally, there was testimony from a number of sources, including Louis Capano, that Capano never told anyone about Fahey's death and denied knowing of her whereabouts until the trial. (A114) (A-136).15 Additional facts relevant to the issues raised in this proceeding, are set forth in the Arguments which follow.

Louis Capano also testified that, some time later, Capano told him he had thrown out a gun in the dumpster and he hoped the police would find it because it had never been fired. (A-114). This gun was never recovered and there was no evidence linking it to the killing or to the gun purchased by MacIntyre. For example, Brian Murphy, a friend of Capano's, testified that, during the summer of 1996, Capano told him that he would not be surprised if the police found Fahey's blood in his house since she was at his home frequently. (A-135). Dr. Tavani testified that Capano had told a prison psychiatrist that he had no involvement in Fahey's disappearance. (A- 143). -1115

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ARGUMENT I. THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHTS UNDER THE FOURTEENTH AMENDMENT, AS ESTABLISHED IN BECK v. ALABAMA, 447 U.S. 625 (1980), WHEN IT REFUSED THE DEFENSE'S REQUEST TO INSTRUCT THE JURY ON LESSER INCLUDED OFFENSES TO THE INDICTED CHARGE OF FIRST DEGREE MURDER ____________________________________________________________ Exhaustion of State Court Remedies and Procedural Bars to Relief Before the Court can consider Capano's Beck claim on the merits, the Court must first determine whether that claim was "fairly presented" in the State court. See, O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (The exhaustion requirement is satisfied only if the petitioner can show that he fairly presented the federal claim at each level of the established state-court system for review); Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004) (accord). In this case, the State agrees that the Beck claim was presented to and considered on the merits in the trial court and by the Delaware Supreme Court. (State's Answer, pp. 6-7). Therefore, Capano has satisfied the exhaustion requirement. Also, the State does not claim, in its Answer, that any other procedural bars to relief exist in the case concerning this claim. Entitlement to Relief Under 28 U.S.C. §2254: Unreasonable Application of Clearly Established Federal Law Capano's Habeas Petition was filed on January 30, 2006. Therefore, the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") apply, and the standard of review is controlled by 28 U.S.C. §2254(d), which states: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -- (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

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In Williams v. Taylor, 529 U.S. 362, 405-06 (2000), Justice O'Connor wrote in her controlling opinion that a state court ruling is "contrary to" clearly established Supreme Court precedent for the purposes of §2254(d)(1) "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases," or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." A state court decision is an "unreasonable application" of Supreme Court precedent if it "identifies the correct governing legal rule from [the Supreme] Court's cases, but unreasonably applies it to the facts of the particular state prisoner's case." Id., 529 U.S. 362, 407 (O'Connor, J., concurring) (controlling opinion). When making the "unreasonable application" inquiry, the federal habeas court should ask "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409 (emphasis added). A court that unreasonably extends a rule in a new context or, in the alternative, unreasonably fails to extend a rule may also be deemed to unreasonably apply the correct rule. Id., 529 U.S. at 407. The standard of review established in Williams was explained by the Third Circuit Court of Appeals in Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888-891 (3d Cir. 1999) (en banc), cert. denied, 528 U.S. 824 (1999): [W]e hold that the "contrary to" provision of AEDPA requires a federal habeas court first to identify the applicable Supreme Court precedent and determine whether it resolves the petitioner's claim. Like the First Circuit, we believe this analysis requires "something more than a recognition that the Supreme Court has articulated a general standard that covers the claim." (internal citation omitted). Instead, the inquiry must be whether the Supreme Court has established a rule that determines the outcome of the petition... In other words, it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome. This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent. **** If the federal habeas court determines that the state court decision was not "contrary to" the applicable body of Supreme Court law -- either because the state court decision complies with the Supreme Court -13-

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rule governing the claim, or because no such rule has been established -- then the federal habeas court should undertake the second step of analyzing whether the decision was based on an "unreasonable application of" Supreme Court precedent. We agree with the First Circuit's observation that "the 'unreasonable application' clause does not empower a habeas court to grant the writ merely because it disagrees with the state court's decision, or because, left to its own devices, it would have reached a different result." (internal citations omitted). To hold otherwise would resemble de novo review, which we believe is proscribed by the statute. **** [W]e hold the appropriate question is whether the state court's application of Supreme Court precedent was objectively unreasonable. The federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent. In making this determination, mere disagreement with the state court's conclusions is not enough to warrant habeas relief. Entitlement to Lesser Included Offense Instruction under Beck More than twenty years ago, in Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held that where a defendant is tried for capital murder, the Due Process Clause of the Fourteenth Amendment requires that the jury be permitted to consider a verdict of guilty of lesser included noncapital offenses, when the evidence would have supported such a verdict.16 As the Court explained: [W]hen the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense ­ but leaves some doubt with respect to an element that would justify conviction of a capital offense ­ the failure to give the jury the "third option" of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. Such a risk cannot be tolerated in a case in which the defendant's life is at stake.

Beck is applicable even though the state law allows for jury discretion to impose or recommend a sentence less than death following conviction of a capital offense. Hooks v. Ward, 184 F.3d 1206, 1223-1229 & n.13-14 (10th Cir. 1999). Conversely, the Supreme Court has not recognized a constitutional right to instructions on lesser included offenses in non-capital cases. See, Hopkins v. Reeves, 524 U.S. 88, 118 S.Ct. 1895, 141 L.Ed.2d 76 (1998). -14-

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Id. at 637. Two years later, in Hopper v. Evans, 456 U.S. 605, 611 (1982), the Court reaffirmed, at least in a capital case, that "due process requires that a lesser offense instruction be given when the evidence warrants such an instruction." The Delaware Supreme Court's Ruling on the Beck Claim In the direct appeal, the Delaware Supreme Court conducted a de novo review of the evidence to determine if Capano was entitled to have the jury instructed on lesser included offenses under state law.17 Capano II, 781 A.2d 628. Utilizing the Delaware Criminal Code's "rational basis in the evidence" standard, the court then went on to consider and reject all of the arguments advanced by Capano to support his claim that the trial court should have instructed the jury on lesser included offenses. Id., at 628-633. Capano's argument that he was entitled to lesser offense instructions based on Beck met the same fate: Capano argues that the refusal to instruct on lesser included offenses violated Capano's due process rights. Relying principally on the 1980 United States Supreme Court decision in Beck v. Alabama, and Delaware authority as well, Capano argues that because he is a defendant in a capital case he has a constitutional right to a lesser included offense instruction in this case. Capano's argument fails because the right to a lesser included offense instruction depends on there being a rational evidentiary basis for that instruction. Beck is consistent with that rule.18 **** In Hopper v. Evans, the United States Supreme Court stated: Beck held that due process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But Due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. Hopper explicitly upheld Alabama's requirement that there be a "reasonable theory from the evidence" to support a lesser included See, 11 Del.C. §206© ("the court is not obligated to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense").
18 17

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offense and held that none was required on the facts of that capital case. We have concluded that in this case there is no "rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense." Neither Delaware law nor the Due Process Clause requires the lesser included instructions requested by Capano. Nothing in Beck or its progeny supports Capano's argument.19 Was the State Court Decision an "Unreasonable Application" of the Rule Established in Beck and Hopper? In its Answer, the State agrees that Beck and Hopper clearly establish that a capital defendant may be entitled to have the jury instructed on lesser included offenses under the Due Process Clause. (State's Answer, p.7). The State argues, however, that the requirement in Beck/Hopper "that a lesser offense instruction be given when the evidence warrants such an instruction," is identical to the requirement under state law that a defendant is entitled to have the jury instructed on lesser included offenses only "if there is a rational basis in the evidence" to warrant such instructions. (State's Answer, pp.7-8). For purposes of federal Habeas review, the State's argument is that if Capano was not entitled to have the jury instructed on lesser included offenses under state law, then Beck/Hopper was correctly applied by the Delaware Supreme Court and Habeas relief should be denied.20 Of course, conversely, if Capano was entitled to lesser offense instructions under state law, then a Beck/Hopper violation has been established and Capano is entitled to Habeas relief. Capano thus agrees with the State that §2254"s "unreasonable application" inquiry is resolved by determining whether the Delaware Supreme Court was correct, as a matter of law, in concluding that Capano was not entitled to lesser offense instructions under state law.

19

Id., at 634 (footnotes omitted).

In its Answer, the State questions whether review of a claim that the evidence was sufficient to instruct the jury on lesser included offenses is the resolution of a factual issue or is legal conclusion. Capano submits that the Delaware Supreme Court, by engaging in a de novo review of the evidence, determined that Capano's entitlement to lesser offense instructions was a legal issue and not an issue of fact. Thus, for purposes of federal Habeas review, any "findings" made by the Delaware Supreme Court on the issue should not be accorded any deference. See 28 U.S.C. §2254(e)(1). -16-

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Existence of a "Rational Basis in the Evidence" for Instructing the Jury on Lesser Included Offenses (a) Overview of the Defense Case The defense case was that Fahey's death was an "accident." According to Capano, who testified in his own defense at trial, after they left the Panorama Restaurant in Philadelphia, they decided to go to Capano's house to watch TV. After they arrived, they sat on a love seat in the great room, and watched "ER," which began at 10:00 p.m. During the show, Capano heard the phone ring, but did not answer it. He thought it might be MacIntyre, who frequently came to his house around 11:00 p.m., and would sometimes spend the night. Capano found an opportunity to phone MacIntyre and told her he had company. (A153-A155) Sometime after the phone call, Capano and Fahey were still seated on the love seat when Capano heard a noise, looked up, and saw MacIntyre standing in the kitchen. MacIntyre appeared to be distraught and yelled, "Who's this?" According to Capano, MacIntyre had completely "snapped." She was holding a gun at her side and was saying that she was going to kill herself. As MacIntyre began to raise her left arm, which was holding the gun, Capano grabbed her arm and the gun went off, striking Fahey behind her right ear and killing her instantly. The shooting, Capano testified, was "accidental." (A155-158)21 (b) Overview of Delaware Law Under Delaware law, a court must charge the jury with respect to a lesser included offense if "there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense." 11 Del.C. §206. See, e.g., Slater

In her testimony, MacIntyre denied that she had gone to Capano's house at all on June 27th, let alone with a gun. (A133-A134). To contradict her testimony, the defense called Kim Johnson, who lived across the street from MacIntyre. Johnson testified that sometime during the last two weeks of June, 1996 (she was unable to pinpoint the exact date), at approximately 11:45 p.m., she heard a car engine racing and a screech of brakes. She then looked out of her bedroom window, which faces directly onto MacIntyre's driveway, and saw MacIntyre "stumble out of the car." She heard MacIntyre "issue a terrible kind of anguished sob," and then saw her run inside her house. (A 165-A167). Capano had testified that MacIntyre left his house at approximately 11:45 p.m. on June 27th and that MacIntyre's house was only a few minutes drive away. (A-159). -17-

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v. State, 606 A.2d 1334, 1338 (Del. 1992) ("a defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to acquit him of the greater offense and to convict him of the lesser"); Henry v. State, 805 A.2d 860, 865 (Del. 2002) ("This requirement usually is satisfied by the presentation of conflicting testimony on the element distinguishing the greater offense from the lesser offense.... A defendant is entitled to an instruction on a lesser included offense if there is any evidence fairly tending to bear upon the lesser included offense, 'however weak' that evidence may be").22 See, Smith v. State, 1996 Del. LEXIS 330, at *6 (In deciding whether the evidence meets Section 206(c)'s "rational basis" requirement, the trial court is not permitted to weigh the evidence, because "the weight of the evidence is for the jury to decide...The question is whether a jury could have convicted on the lesser offense") (emphasis added). Also see, Gutierrez v. State, 842 A.2d 650, 652-653 (Del. 2003) (defendant's uncorroborated testimony that killing was in "self-defense" was sufficient under "credible evidence" standard for entitlement to self-defense instruction, "even when the defendant's affirmative defense evidence was not very believable"); Henry, supra, 805 A.2d at 865-866 ("the trial judge may not intrude upon the province of the jury `which may find credibility in testimony that the judge may consider completely overborne by the simply overwhelming evidence of the prosecutor'"). (c) Capano's Testimony Provided a "Rational Basis in the Evidence" to Instruct on Lesser Included Offenses At trial, based on Capano's testimony, the defense argued that a rational jury could conclude that Capano had acted "recklessly" or with "criminal negligence" in reaching out for MacIntyre's arm, and that Capano's testimony, standing alone, could support a verdict of either Murder Second Degree, Manslaughter, or Criminally Negligent Homicide. (A170-172). The trial court disagreed, reasoning that if Capano was trying to prevent MacIntyre from firing the gun, but it fired anyway,

In a homicide case, the difference between the degrees of homicide is the requisite "state of mind" of the defendant. Thus, Murder Second Degree (11 Del. C. § 635), Manslaughter (11 Del. C. § 632) and Criminally Negligent Homicide (11 Del. C. § 631) are all "included offenses" to the charge of murder first degree. Delaware Criminal Code with Commentary, 15-16 (1973); Lilly v. State, 649 A.2d 1055, 1060-62 (Del. 1994). -18-

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killing Fahey, then it was a pure accident and Capano had no "criminal culpability." (A168-A169). In the direct appeal, the Delaware Supreme Court agreed with the trial court's analysis. Capano II, 781 A.2d at 633 and n. 255 ("[Capano's] testimony was confined to an accident scenario that involved no crime on his part"). The Delaware Supreme Court's rejection of Capano's "accident" evidence as being a "rational basis in the evidence" to instruct on lesser included offenses was entirely incompatible with established Delaware law and therefore establishes a Beck violation. To understand why that is so, it is necessary to understand the interrelationship, and indeed interchangeability, between the degrees of culpability for a "homicide" and the claim that a homicide was an "accident." This

interrelationship was clearly acknowledged in Hall v. State, 431 A.2d 1258 (Del. 1981). In Hall, the defendant shot his mother between the eyes, according to expert testimony, from a distance of approximately six inches. Although a witness heard the defendant say "I'll kill you" just before the gun went off, the defendant testified that during a discussion with his mother, the gun, which he had obtained from an upstairs closet, had "accidentally" discharged. Id. at 1258-1259. The trial court instructed the jury on the charged offense of Murder First Degree and the lesser included offenses of Murder Second Degree, Manslaughter and Criminally Negligent Homicide. Id. at 1258. It also instructed that the defendant's contention "that the shooting was accidental" required the jury to "consider whether the evidence raises a reasonable doubt as to the existence of the state of mind required for the offense in question, that is, whether the defendant acted intentionally, recklessly or with criminal negligence." Id., at 1260. On appeal, the defendant argued that the jury instructions were inadequate because the trial court had not specifically defined the concept of "accident" for the jury. Id. That argument was rejected by the Delaware Supreme Court: The language above, we believe, adequately explains...implicitly by its posture in the charge, that the defense of accident, if believed, could negate either or both the culpable state of mind or the voluntariness of the act. The failure to define accident, which definition would have been preferable, caused no prejudice in this case. The jury could not fail to understand the accident contention of the defendant, which was emphasized throughout the trial. -19-

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Id. (emphasis added).23 In holding that the "defense" of "accident" could negate a defendant's "culpable state of mind," id., the Court recognized that a defendant's claim, as in Hall, that a shooting was an "accident" was also a claim that the defendant had a lesser degree of culpability than that required for conviction of the charged offense.24 Thus, under Hall, it is the state of mind specified in the statutory definition of an offense that determines precisely which "accidents" will constitute a defense. See, Robinson, Criminal Law Defenses, §63, pp. 269-271 & n.4 (1984) (citing Hall and noting that courts often deal with "accident" in terms of culpability requirements, which render special provisions concerning "accident" unnecessary or redundant). Thus, if the required state of mind is "intentional," as in Murder First Degree, then evidence of a "reckless accident," a "criminally negligent accident," or a "faultless accident" can all support a charge on lesser included offenses. See, Robinson, supra, at §62(b), p. 248. Another case, decided approximately one year after the decision in Capano II, also serves to illustrate that a claim of "accident" will entitle a defendant to instructions on lesser included offenses. In Henry v. State, supra, the defendant shot his fiancee, Siobhan Canty ("Canty") three times and killed her in the small bathroom of the house they shared. The three bullets struck Canty's body in the head, chest, and back. The gunshots to the head and chest entered at downward angles, indicating that the shots were discharged at close range. The following day, Henry placed the body into a suitcase and loaded it into the trunk of his car. He dumped the suitcase in an area off of Route

In a footnote, the Court explained, "although accident is not expressly a `defense' in the Delaware Criminal Code, because it is not defined in Chapter 4 of Title 11, or by any other statute...evidence of accident may be produced to negate the existence of any element of the offense charged." Id. 431 A.2d at 1259 n.1 (emphasis added). Parenthetically, Hall's treatment of "accident," as a "defense" which can negate a defendant's culpable state of mind, parallels the codification of the defenses of "ignorance or mistake of fact" in 11 Del.C. §441. In the Commentary to Section 441, it was noted, "[F]rom the wording of §441, it is clear that even such a mistake as would make a man guilty of another crime is a defense if it negatives the culpable mental state required for commission of the crime with which he is charged." Delaware Criminal Code With Commentary, 101 (1973). -2024

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9, south of New Castle. Id., 805 A.2d at 862. At trial, Henry testified that on the day of the killing, Canty had taken a shower and started yelling at him. According to Henry, when he entered the bathroom, Canty was standing with a handgun pointed at him. Henry attempted to wrestle the gun away from her. Henry testified that "[they] got in a screaming match. [He] accidentally shot [himself] in the foot, and [he] got extremely upset and just a wave of emotion took over and [he] shot her." Henry testified that he did not intentionally kill Canty. He stated that in pulling the trigger "a total rage of emotions just came over [him], [he] had no control." Id., at 863. Henry requested the trial judge to instruct the jury on Murder in the Second Degree, as a lesser included offense of Murder in the First Degree. Henry argued that his testimony provided an evidentiary basis for the jury to find that his shooting of Canty was reckless. In refusing to instruct the jury on Murder in the Second Degree, the trial judge stated "three different parts of the body within a very short period of time. It seems to me that reckless is absurd under those conditions. I'm not going to give it." Id. Henry's conviction for First Degree Murder was reversed on appeal. Even though Henry was not a capital murder case, the Delaware Supreme Court concluded that Beck provided a well established foundation to instruct the jury on lesser included offenses: The United States Supreme Court has recognized that "providing the jury with the 'third option' of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard." This fundamental principle was developed in recognition that the extension of the full benefit of the concept of reasonable doubt may be compromised if the jury had no alternative but to set free a defendant accused of a particularly heinous crime. Id., at 864 (internal citations omitted). Turning to Henry's version of the killing, which was entirely uncorroborated, the court stated: Henry asserts that the jury could have held him responsible for the reckless killing of Canty in view of the unknown sequence of the shooting. He contends the jury could infer from his testimony that he fired the gun wildly in the bathroom. **** Despite the trial judge's belief that Henry's contention of recklessness was "absurd," it is well settled that the jury is the sole judge of the -21-

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credibility of witnesses and is responsible for resolving conflicts in the testimony. In ruling upon a request to instruct the jury on a lesser included offense, the trial judge "must give full credence to [the] defendant's testimony." **** Henry's testimony presented evidence from which the jury could find the elements of the lesser included offense of Murder in the Second Degree...We hold that the trial judge erred in taking the issue of Henry's mens rea away from the jury by refusing to instruct on the lesser included offense of Murder in the Second Degree. That error resulted in a violation of Henry's due process rights under the United States Constitution... Id., at 865-866. In this case, however, unlike the decisions in Hall and Henry, the trial court and the Delaware Supreme Court somehow concluded that Capano's jury should not have been given Beck's " third option." While in Capano's own mind, the shooting may have been a "pure accident" because he did not fire the gun and did not intend to shoot Fahey, the trial court and the Delaware Supreme Court court failed to recognize that the jury could have viewed Capano's conduct ­ grabbing the arm of a hysterical woman brandishing a gun and threatening suicide ­ as either a "reckless accident," i.e. Murder Second Degree or Manslaughter,25 or as a "criminally negligent accident," i.e. Criminally Negligent Homicide.26 See, Hall, 431 A.2d at 1259 (noting "this State's strong policy favoring the submission of factual issues to the jury" in criminal cases); Plass v. State, 457 A.2d 362, 368 (Del. 1983) (issue of defendant's state of mind in a homicide case is "peculiarly for the jury" where evidence supports more than one conclusion). Moreover, the jury was free to disbelieve some or most of Capano's testimony without rejecting all of it. In other words, the jury could reasonably A person acts recklessly "with respect to an element of an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the element exist and will result from the conduct. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." 11 Del.C. §231©. A person acts with criminal negligence "with respect to an element of an offense when the person fails to perceive a risk that the element exists or will result from the conduct. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." 11 Del.C. §231(d). -2226 25

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have concluded that Capano was trying to put the best light on an accident that was in fact reckless conduct by making it seem entirely non-culpable. See, Henry, 805 A.2d at 866 ("A defendant is entitled to a lesser included offense instruction even if it `depends on an inference of a state of facts that is ascertained by believing defendant as to part of his testimony and [State's] witnesses on the other points in dispute'"). (d) "Gaps" in the State's Evidence Concerning Capano's State of Mind at the Time of the Homicide Required That the Jury Be Instructed as to Lesser Included Offenses In the direct appeal, Capano also argued that "gaps" in the State's evidence concerning his state of mind when Fahey was killed independently provided a "rational basis in the evidence" to instruct the jury on lesser included offenses. Capano II, 781 A.2d at 630. This argument, too, was rejected by the court: The possibility that Capano killed Fahey by an act that was reckless, criminally negligent, or under the influence of extreme emotional disturbance is based entirely on speculation. Although there is evidence of the disposal of Fahey's body, the parties concede that apart from the accident defense offered in Capano's testimony, there is no evidence concerning the manner of Fahey's death. Her body was not recovered and neither was any murder weapon. Putting aside Capano's accident defense, no one gave eyewitness testimony bearing on the circumstances under which Fahey died. If the State's planning evidence and Capano's accident defense are rejected, it is possible that Capano killed Fahey in some kind of jealous rage, or some other reckless or negligent act. But these possibilities are only speculative. They are not supported by any rational basis in the evidence. Id., at 631. As previously explained herein, a state court decision is an "unreasonable application" of Supreme Court precedent if it "identifies the correct governing legal rule from [the Supreme] Court's cases, but unreasonably applies it to the facts of the particular state prisoner's case." Williams v. Taylor, supra, 529 U.S. at 407 (O'Connor, J., concurring) (controlling opinion). As the discussion which follows will explain, Beck and its progeny clearly stand for the proposition that "gaps" in the

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State's case, especially where the gap involves the critical element of the defendant's state of mind, will entitle a defendant to instructions on lesser included offenses. In order to convict for First Degree Murder, the State was required to prove not only that a killing occurred, but also must prove that the killing was "intentional." See, State v. Moyer, 387 A.2d 194, 195 (Del. 1987). As previously noted, it is the defendant's state of mind that is the critical element which distinguishes murder first degree from its lesser included offenses. Duonnolo v. State, 397 A.2d 126, 130 (Del. 1978). Even if Capano had not testified concerning the "accident," he would nevertheless have been entitled to have the jury instructed on lesser included offenses under Beck and its progeny because there were "gaps" in the State's case concerning proof of Capano's state of mind.27 This aspect of Beck was explained by the Court in Schad v. Arizona, 501 U.S. 624, 646-647 (1991): Our fundamental concern in in Beck was that a jury convinced that the defendant had committed some violent crime, but not convinced that he was guilty of a capital crime, might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all. **** [In Beck], we repeatedly stressed the all-or-nothing nature of the decision with which the jury was presented (citations omitted). As we later explained in Spaziano v. Florida, 468 U.S. 447, 455, 82 L. Ed. 2d 340, 104 S. Ct. 3154 (1984), "the absence of a lesser included offense instruction increases the risk that the jury will convict . . . simply to avoid setting the defendant free. . . .The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence."

Indisputably, something happened inside Capano's house that resulted in Fahey's death. In finding Capano guilty of First Degree Murder, the jury clearly rejected Capano's claim that the death was a "pure accident." In the direct appeal, the State argued that Capano's exculpatory testimony that Fahey's death was an "accident" barred Capano from having the jury consider lesser included offenses. That argument, however, was squarely rejected by the Delaware Supreme Court as a matter of state law. Capano II, 781 A.2d at 629-630. -24-

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The concern in Beck that the fact-finding process is distorted when the jury is forced into an all-or-nothing choice was recognized by the Delaware Supreme Court in Chao v. State, 604 A.2d 1351, 1359 (Del. 1992): By according defendants the procedural safeguard of providing jurors with the additional option of convicting a person of a lesser included offense, the defendant is more likely to receive the full benefit of the reasonable doubt standard. Beck, 447 U.S. at 634. In other words, by limiting a jury's choice of convicting or acquitting a defendant of the charged offense alone, jurors who have determined that a serious crime was committed may convict a person simply because they believe he or she deserves to be punished, although not necessarily for the crime with which the defendant was charged. The third option of convicting on a lesser included offense reduces the risk of unwarranted convictions [for capital murder]. This "fundamental concern" in Beck was also echoed by the Delaware Supreme Court in Henry: "At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged." (footnote omitted). That rule originally developed as "an aid to the prosecution in cases in which [its evidence] failed to establish some element of the crime charged." (footnote omitted). Such instructions provide the jury with a less dramatic alternative than the sharp choice between conviction of the offense charged and acquittal. Id., 805 A.2d at 863-864. The Delaware Supreme Court's conclusion in Capano's direct appeal that giving the jury the "third option" of convicting Capano of a lesser degree of homicide than First Degree Murder would allow the jury to "speculate" concerning Capano's state of mind is an unreasonable interpretation and application of Beck because it does not address Beck's concern "that a jury convinced that the defendant had committed some violent crime, but not convinced that he was guilty of a capital crime, might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all. Id., 501 U.S. at 646. As discussed in detail below, the conflicting and largely inconclusive evidence concerning Capano's state of mind, and especially the lack of any evidence concerning the manner or means of Fahey's death makes this case a paradigmatic Beck/Chao scenario ­ a factual scenario that required instructions on lesser included offenses. -25-

Case 1:06-cv-000