Free Motion for Miscellaneous Relief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE __________________________________ : Civil Action DAVID STEVENSON : (capital habeas corpus) : Petitioner, : Case No. 1:07-cv-00473-GMS : v. : DEATH PENALTY CASE : CARL C. DANBERG, : Commissioner, : Delaware Department of Corrections : Respondent. : __________________________________ PETITION FOR A WRIT OF HABEAS CORPUS BY A PRISONER IN STATE CUSTODY1 _______________________________________________________________ Petitioner, DAVID STEVENSON, through undersigned counsel, files this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

All emphasis is supplied unless otherwise noted. The record will be cited as "NT (date) at (page number)."

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TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT REGARDING EXHAUSTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 GROUNDS FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 CLAIMS FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 CLAIMS RELATED TO GUILT PHASE OF TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. PETITIONER 'S CONSTITUTIONAL RIGHTS WERE VIOLATED DUE TO THE TRIAL JUDGE'S BIAS AND /OR CONFLICT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 PETITIONER 'S RIGHT TO A FAIR TRIAL AND HIS RIGHT TO DUE PROCESS WERE VIOLATED WHEN HE WAS TRIED JOINTLY WITH THE CO -DEFENDANT . . . . . . . . . . . . . . . . . . . . . . . . 5 PETITIONER 'S RIGHTS TO A FAIR JURY AND TO DUE PROCESS WERE VIOLATED WHEN THE COURT ERRONEOUSLY INSTRUCTED THE JURY REGARDING REASONABLE DOUBT , PRIOR INCONSISTENT STATEMENTS AND ACCOMPLICE LIABILITY AND WHERE PETITIONER 'S COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. B. C. IV. Accomplice Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Reasonable Doubt Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Prior Inconsistent Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II.

III.

PETITIONER 'S RIGHT TO A FAIR AND IMPARTIAL TRIAL WAS VIOLATED WHEN THE PROSECUTION MADE INFLAMMATORY , PREJUDICIAL AND IMPROPER REMARKS TO THE JURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 PETITIONER'S ATTORNEYS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO PRESENT EXCULPATORY EVIDENCE IN VIOLATION OF PETITIONER 'S RIGHTS UNDER THE FIFTH , SIXTH AND FOURTEENTH AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 PETITIONER 'S RIGHT TO A FAIR TRIAL AND TO DUE PROCESS WAS VIOLATED WHEN THE PROSECUTION SUBMITTED EVIDENCE OF OTHER CRIMES TO THE JURY AND WAS PERMITTED TO READ PETITIONER 'S STATEMENT REGARDING THE UNDERLYING THEFT CHARGE . . 20 i

V.

VI.

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CLAIMS RELATED TO THE PENALTY PHASE OF TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . 22 VII. ERRORS IN THE JURY INSTRUCTIONS PRECLUDED PETITIONER 'S CAPITAL SENTENCING JURY GIVING FULL EFFECT TO MITIGATING EVIDENCE , IN VIOLATION OF THE EIGHTH AMENDMENT ; TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
FROM

VIII.

THE STATE'S PEREMPTORY STRIKES ON THE BASIS OF RACE VIOLATED PETITIONER 'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY , AS PROTECTED BY ARTICLE 1, SECTION 7 OF THE DELAWARE CONSTITUTION , AND THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO DEVELOP AND PRESENT PETITIONER 'S YOUTH AS A MITIGATING CIRCUMSTANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 PETITIONER 'S DEATH SENTENCE IS UNCONSTITUTIONAL UNDER THE 5TH , 6TH , 8TH AND 14TH AMENDMENTS, DUE TO INFIRMITIES IN THE SENTENCING PROCEDURE IN HIS CASE . . . . 36 THE DEATH PENALTY IS UNCONSTITUTIONAL, FACIALLY AND AS APPLIED , BECAUSE THE STATUTORY SCHEME FAILS TO GENUINELY NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY IN VIOLATION OF DUE PROCESS AND THE EIGHTH AMENDMENT . 38 PETITIONER IS ENTITLED TO RELIEF BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE AT THE PENALTY PHASE OF HIS CAPITAL TRIAL . . . . . . . . . . . . . . . . . . . . . 40 A. Counsel Failed to Develop and Present Crucial, Available Life History and Mental Health Evidence In Mitigation of Punishment in This Capital Case . . . . . . . . . . 40 Readily Available Mitigating Evidence that Counsel Could and Should have Developed and Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

IX.

X.

XI.

XII.

B.

XIII.

PETITIONER WAS DENIED A FAIR PENALTY HEARING BEFORE AN IMPARTIAL TRIBUNAL DUE TO THE RE -SENTENCING COURT 'S DENIAL OF HIS MOTION FOR RECUSAL IN VIOLATION OF DUE PROCESS AND THE EIGHTH AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

XIV. PETITIONER 'S RIGHT TO A FAIR SENTENCING AND HIS EIGHTH AMENDMENT RIGHT TO INDIVIDUALIZED CONSIDERATION OF AGGRAVATION AND MITIGATION WERE VIOLATED BY THE JOINDER OF HIS PENALTY PHASE HEARING WITH THAT OF THE CO -DEFENDANT . . . 56 XV. PETITIONER 'S RIGHT TO A FAIR SENTENCING HEARING WAS VIOLATED BY THE COURT 'S ERRONEOUS INSTRUCTION REGARDING REASONABLE DOUBT , IN VIOLATION OF THE SIXTH , EIGHTH AND FOURTEENTH AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ii

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XVI. PETITIONER 'S RIGHT TO A FAIR SENTENCING PROCEEDING , AS GUARANTEED BY THE SIXTH , EIGHTH AND FOURTEENTH AMENDMENTS, WAS VIOLATED BY THE COURT 'S INSTRUCTION TO THE SENTENCING JURY REGARDING ACCOMPLICE LIABILITY . . . . . . . . . . . . . . . . . . 59 XVII. PETITIONER 'S RIGHT TO A FAIR SENTENCING WAS VIOLATED WHEN THE JURY AND THE SENTENCING COURT CONSIDERED AGGRAVATING CIRCUMSTANCES THAT WERE NOT PROVEN BEYOND A REASONABLE DOUBT OR TO A UNANIMOUS JURY . . . . . . . . . . . . . . 61 XVIII. PETITIONER 'S DEATH SENTENCE IS INVALID UNDER THE SIXTH , EIGHTH , AND FOURTEENTH AMENDMENTS BECAUSE THE STATE COURTS HAVE NEVER MADE A RELIABLE DETERMINATION AS TO WHETHER PETITIONER IS SUBJECT TO THE DEATH PENALTY AS ONE WHO HAS KILLED , ATTEMPTED TO KILL, INTENDED THAT A KILLING TAKE PLACE OR THAT LETHAL FORCE BE USED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 XIX. PETITIONER 'S RIGHT TO A FAIR SENTENCING HEARING WAS VIOLATED WHEN THE PROSECUTION WAS IMPROPERLY PERMITTED TO READ PRIOR TESTIMONY OF WITNESSES WHO WERE NOT UNAVAILABLE AND WHERE COUNSEL FAILED TO OBJECT . . . . . . . . . . 65 XX. IN ADDITION TO THE FOREGOING CLAIMS, PETITIONER 'S CONSTITUTIONAL RIGHTS WERE VIOLATED IN THE FOLLOWING WAYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

XXI. PETITIONER 'S CONVICTION AND SENTENCE SHOULD BE VACATED BECAUSE OF INEFFECTIVE ASSISTANCE OF TRIAL, DIRECT APPEAL, AND POST -CONVICTION , AND RE -SENTENCING COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 XXII. PETITIONER IS ENTITLED TO RELIEF BECAUSE OF THE CUMULATIVE PREJUDICIAL EFFECT OF THE ERRORS DESCRIBED HEREIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

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PROCEDURAL HISTORY 1. On November 13, 1996, Petitioner was convicted of first degree murder and

related charges. The jury recommended a sentence of death by a vote of eight to four. On January 10, 1997, the trial court sentenced Petitioner to death. 2. Petitioner's convictions and sentence were affirmed on appeal. Stevenson v.

State, 709 A.2d 619 (Del. 1998). The United States Supreme Court denied certiorari. Stevenson v. Delaware, 525 U.S. 967 (1998). 3. On December 14, 1998, Petitioner filed a motion to recuse the trial court, which

the court denied on January 8, 1999. State v. Stevenson, 1999 Del. Super. Lexis 118. 4. On February 8, 1999, Petitioner filed a motion for post conviction relief pursuant

to Rule 61 of the Delaware Superior Court Rules of Criminal Procedure, which was denied by the court on December 21, 1999. State v. Stevenson, 1999 Del. Super. Lexis 618. 5. On May 30, 2001, the Delaware Supreme Court reversed the Superior Court's

denial of post conviction relief, ordered a new penalty hearing, and directed that the guilt phase claims raised in post conviction be considered by a newly assigned judge. Stevenson v. State, Manley v. State, 782 A.2d 249 (Del. 2001). 6. On October 2, 2003, after considering amendments and holding an evidentiary

hearing, the Superior Court denied all remaining claims in a memorandum opinion. State v. Manley, State v. Stevenson, Del. Super., Nos. IN95-11-1047-1049, IN95-12-0687-0689, Herlihy, J. (October 2, 2003), Appendix. This decision was affirmed on appeal on October 18, 2004. Stevenson v. State, 2004 Del. Lexis 168. 7. After a second penalty phase, by a vote of ten to two, the jury recommended a

sentence of death on December 6, 2005. The court sentenced Petitioner to death on February 3, 2006. The Delaware Supreme Court affirmed the sentence on January 3, 2007. Stevenson v.

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State, 918 A.2d 321 (Del. 2007). 8. On August 14, 2007, after considering a petition filed with this Court, the Court

appointed undersigned counsel and granted in forma pauperis status. STATEMENT REGARDING EXHAUSTION 9. Rule 5 of the Rules Governing § 2254 Cases places on the Respondent the burden

of raising exhaustion-related issues in its answer to the habeas petition. E.g., Rule 5 ("The answer shall respond to the allegations of the petition. In addition it shall state whether the petitioner has exhausted his state remedies"); Granberry v. Greer, 481 U.S. 129, 134 (1987) (discussing Rule 5; "[w]hen the State answers a habeas corpus petition, it has a duty to advise the district court whether the prisoner has, in fact, exhausted all available state remedies"). 10. While this burden is on the State, Petitioner here notes that some claims presented

herein were exhausted, while some are not. Petitioner has filed a post conviction petition in state court and is in the process of preparing an amendment to that petition. At the appropriate time, Petitioner will request that this Court hold the habeas proceedings in abeyance while he exhausts the unexhausted claims. Petitioner is filing this habeas petition at this time because of the unique procedural history of the case. GROUNDS FOR RELIEF 11. By this Petition for a Writ of Habeas Corpus, Petitioner asserts that his conviction

and sentence violate the First, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, for the reasons set forth herein. To the extent the state court rendered decisions on the merits of any claims, those decisions are contrary to, and/or involve an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; and/or are based on unreasonable determinations of facts in light of the evidence presented in the State court proceedings.

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CLAIMS FOR RELIEF2 12. Due to the errors discussed herein, Petitioner was denied his rights under the

Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution including, but not limited to: due process; equal protection; fair trial by representative jury; reliable, individualized capital sentencing; meaningful, valid direct appeal and post-conviction review; and effective assistance of counsel. All allegations and facts set forth in each claim of this pleading are hereby fully incorporated in all other claims as if restated in their entirety. CLAIMS RELATED TO GUILT PHASE OF TRIAL: I. PETITIONER 'S CONSTITUTIONAL RIGHTS WERE VIOLATED DUE TO THE TRIAL JUDGE'S BIAS AND /OR CONFLICT OF INTEREST . 13. The trial judge harbored bias and/or labored under a conflict of interest in this

capital case. Indeed, because of that bias and the appearance of impropriety, the Delaware Supreme Court vacated Petitioner's original death sentence and ordered a new penalty hearing. Stevenson v. State, 782 A.2d 249 (Del. 2001). The same considerations that led to that result, also lead to the unmistakable conclusion that the trial court's bias unconstitutionally affected Petitioner's conviction. He is entitled to a new trial. 14. The Supreme Court of the United States has held that "[a] fair trial in a fair

tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases." In re Murchison, 349 U.S. 133, 136 (1955). The Court has also stated that "every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear and true between the State and the accused, denies the latter Petitioner will file an Appendix of exhibits shortly after the filing of this Petition. Cites to exhibits herein cite to the name of the exhibit as it appears in the index to the Appendix. The to-befiled exhibits are incorporated by reference as if pleaded herein in their entirety. Petitioner proffers that he can prove all disputed issues of fact at an evidentiary hearing. 3
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due process of law." Tumey v. Ohio, 273 U.S. 510, 532 (1927). 15. Petitioner's pretrial, trial, initial sentencing, and suppression proceedings were

conducted before Judge Norman Barron. Judge Barron could not preside in and adjudicate Petitioner's case impartially, and did not, because of his status as judge presiding over the underlying theft case­together with his request, not disclosed on the record, to preside over the capital case-- and because his twin brother, Tim Barron, was a capital case prosecutor in New Castle County at the time of Petitioner's trial. Additionally, Judge Barron's brother had also been employed as a security guard in a department store (just as the victim in this case), while prosecuting cases for the State Attorney General's Office. See Appellant's Opening Brief (2/25/00) at 25, Appendix. These personal connections to the case created a temptation "not to hold the balance nice, clear and true" between Mr. Stevenson and the State of Delaware. 16. Trial counsel were ineffective for failing to try to recuse Judge Barron from the

case. After affirmance on direct appeal, Petitioner moved to recuse Judge Barron from presiding over the post-conviction proceedings. Judge Barron could not and should not have been expected to fairly adjudicate a proceeding in which his own impartiality was being questioned. Nonetheless, Judge Barron presided over the motion to recuse himself, and denied the motion. State v. Stevenson, 1999 Del. Super. LEXIS 118 (January 8, 1999). That decision was overturned on appeal. State v. Stevenson, 782 A. 2d 249, 251 (2001) (reversing denial of postconviction relief and remanding for new penalty hearing). 17. Inter alia, Judge Barron displayed bias in favor of the State and against Mr.

Stevenson by: failing to grant a severance motion when Mr. Stevenson's defense and that of his co-defendant were mutually antagonistic; denying a motion for prior to trial, so that the lawyer 4

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Petitioner's family had hired could represent him at trial; finding that Petitioner's felony theft charges were admissible under an exception to the prohibition of other crime evidence; failing to intervene sua sponte to prevent prosecutorial misconduct in the State's closing argument to the jury; instructing the jury on accomplice liability without requiring the jury to find which defendant was the accomplice and which was the principal; and committing the various other errors that are pleaded throughout this petition. 18. No deference should be given to any findings or rulings of Judge Barron at the

pretrial, trial, sentencing, suppression or post-trial stages. His partiality infected both the guilt and penalty phases of trial equally. The Delaware Supreme Court should have granted Petitioner a new trial, rather than only a new penalty hearing. The lack of an impartial tribunal in this capital case was per se prejudicial, and no showing of specific prejudice is required. In the alternative, the State cannot show that the bias of the state court did not substantially and injuriously effect or influence the jury's verdict and affected the process to such an extent as to render petitioner's conviction and sentence fundamentally unfair and unconstitutional. At the very least, Petitioner is entitled to a hearing on this claim. II. PETITIONER 'S RIGHT TO A FAIR TRIAL AND HIS RIGHT TO DUE PROCESS WERE VIOLATED WHEN HE WAS TRIED JOINTLY WITH THE CO -DEFENDANT. 19. Petitioner was tried jointly with co-defendant Michael Manley. Prior to trial,

Petitioner moved for severance, which was denied by the court. On appeal, the Delaware Supreme Court affirmed this decision. Commonwealth v. Stevenson, 709 A. 2d 619, 628-630 (Del. 1998). The state court's decision was contrary to or was an unreasonable application of clearly established federal law.

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20.

Under the Delaware rules, two or more defendants can be charged in the same

indictment, and can therefore be tried jointly, when they are alleged to have participated in the same act or series of acts. Delaware Superior Court Criminal Rule 8(b). However, under federal law, the court should grant severance when there is a serious risk that a joint trial would compromise a specific right of a defendant or would prevent the jury from making a reliable determination of guilt or innocence. The existence of antagonistic defenses is one of the factors to be considered in determining if severance is warranted. Here, the co-defendant's theory of defense, that Petitioner was the shooter, could not possibly have been more antagonistic. 21. The State's theory of the case was that Michael Manley shot the victim. Petitioner

was tried under an accomplice liability theory. Manley's defense, however, was that Petitioner was the shooter. Manley presented the testimony of Dorothy Hackett, who lived in the apartment complex. NT 11/8/96 at 2.3 She testified that she heard the shots and looked out her window. Id. at 3. She identified Petitioner as the man she saw with a gun walking toward her, away from the victim. Id. at 8. She testified that she identified Petitioner that same day in a photographic array, id. at 19, and positively identified him in court. Id. at 20. 22. This evidence that Petitioner was the shooter would not have been heard by the

jury if the defendants had been tried separately. Indeed, the State did not present this witness.4
3

Because of the unavailability of this witness, her testimony was taken on November 8, 1996, by videotaped deposition before the court, but outside the presence of the jury. Her testimony was played for the jury at the following session, on November 12. In fact, Petitioner filed a motion to suppress the photographic identification and the in-court identification by this witness. See Motion to Suppress Identification, Appendix. However, after being informed by the prosecution that the witness would not be presented, counsel did not litigate the motion. Counsel was ineffective for failing to renew and litigate that motion once the codefendant decided to present this witness. 6
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The prejudice to Petitioner was further enhanced by Manley's counsel's argument to the jury. Practically the entire closing argument on behalf of Manley, was based upon his contention that Petitioner was the shooter. See NT 11/12/96 at 83 (bullets found in jacket with University of Delaware basketball schedule, where Petitioner went to school); id. (car belonged to Petitioner; "There's not going to be any debate about that"); id. at 84 (Hackett identified dark shirt like Petitioner was wearing); id. (Hackett saw a gun); id. at 85 (Hackett "positively identified David Stevenson as the person she saw with the gun"); id. at 86-7 ("As Miss Hackett told you, [Manley] didn't have the gun"); id. at 89 ("there was absolutely no doubt in her mind what she saw"). This argument was highly prejudicial to Petitioner. 23. In fact, immediately after the co-defendant's closing, counsel for Petitioner

renewed his motion for severance and requested a mistrial: "I believe the Court quite obviously heard about ten arguments, approximately, made by [Manley's counsel's] which we believe are antagonistic and contrary to our perception of what is reality in this case." Id. at 92. The court again denied this motion. Id. 24. The presentation of evidence specifically identifying Petitioner as the shooter,

together with the closing argument for the co-defendant, resulted in great prejudice and violated due process. Petitioner is entitled to a new trial. III. PETITIONER 'S RIGHTS TO A FAIR JURY AND TO DUE PROCESS WERE VIOLATED WHEN THE COURT ERRONEOUSLY INSTRUCTED THE JURY REGARDING REASONABLE DOUBT , PRIOR INCONSISTENT STATEMENTS AND ACCOMPLICE LIABILITY AND WHERE PETITIONER 'S COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT. 25. The trial court erroneously instructed the jury as to reasonable doubt. The court's

instruction regarding the treatment of prior inconsistent statements was also in error.

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Additionally, the court lessened the State's burden of proof and allowed the jury to convict without finding all elements of the offenses charged, by instructing the jury that they could find Petitioner guilty as an accomplice if they found he intended to aid another in committing some or all of the acts necessary for the commission of the offense, and in erroneously instructing the jurors that they did not need to decide unanimously which co-defendant was the actual shooter. 26. The Sixth Amendment and the Due Process Clause of the Fourteenth Amendment

require that the jury be accurately instructed regarding the law which they are to apply to the facts. A jury must be properly instructed regarding its application of reasonable doubt. Erroneous instructions to the jury, particularly those that lessen the prosecution's burden of proof and allowed a conviction without a unanimous finding, require that a new trial be granted. Here, individually and cumulatively, the improper instructions violated due process. Petitioner is entitled to a new trial. A. 27. Accomplice Liability. The State's theory of the case was that Manley was the shooter and Petitioner was

his accomplice. See NT 11/12/96 at 117 (prosecutor arguing in closing that "it makes perfect sense that Manley is the shooter"). Manley's defense was that Petitioner was the shooter. See generally id. at 78-89 (Manley's closing argument). Petitioner's defense was that he was not an accomplice to the shooting. Thus, the question of accomplice liability was the crucial decision for the jury at the guilt phase. The court's instruction lessened the burden necessary for the jury to find Petitioner guilty as an accomplice, and allowed the jury to convict without finding all elements of the offenses charged. 28. First, the court instructed the jury that it could find the Petitioner guilty "as an 8

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accomplice if he intended to aid another person in committing some or all of the acts necessary for the commission of the offenses." Id. at 130. This allowed the jury to find accomplice liability without finding all elements of the offense beyond a reasonable doubt. Indeed, if the jury thought that the state proved that Petitioner intended to aid Manley in acquiring a gun to scare the victim, or merely in a plot to intimidate the witness, this instruction allowed the jury to find Petitioner guilty of first degree murder. Surely, this was improper. 29. This error was compounded by the court's instruction regarding which defendant

was the actual shooter. The court told the jury that "there is no requirement that the jury be unanimous as to which of the parties was the principal and which was the accomplice, so long as you are all agreed as to guilt." Id. at 132. This allowed the jury to speculate as to the facts of the case and to find Petitioner guilty as an accomplice without unanimity and on proof less than beyond a reasonable doubt. 30. This was particularly egregious since there were conflicting fact patterns

presented to the jury regarding who the shooter was. Indeed, the State presented evidence that Manley was the shooter and argued to the jury that Manley was, in fact, the shooter. NT 11/12/96 at 117. And, as stated above, Manley presented a witness who identified Petitioner as the shooter. Then, the State was permitted to argue that the jury did not need to decide which of the two defendants was the shooter. Id. at 72. And the court told the jury the same thing. Id. at 132. 31. The Sixth Amendment requires that a jury must find unanimously every element

of a crime before convicting a defendant. This is particularly so in a capital case. Here, the risk of juror confusion was far too great, particularly when considering the court's erroneous 9

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instruction regarding the definition of accomplice, that one can be found guilty if agreeing to some of the acts required for the crime. Petitioner was denied his rights under the Sixth and Fourteenth Amendments, which require a unanimous verdict.5 32. Trial counsel was ineffective for failing to object to these erroneous instructions.

Appellate counsel was similarly ineffective for failing to raise this issue on appeal. The performance of all prior counsel was deficient and Petitioner was prejudiced. B. 33. Reasonable Doubt Instruction. The court's instruction on reasonable doubt was confusing and fell far below the

constitutional standard of proof required in a criminal case. This error is even more egregious considering that Petitioner was sentenced to death. In defining reasonable doubt in his final instructions to the jury, the court instructed as follows: Reasonable doubt is a practical standard. On the one hand, in criminal cases, the law imposes a greater burden of proof than it does in civil cases. Proof that a defendant is probably guilty is not sufficient. On the other hand, the law recognizes that certainty is rarely possible in matters involving human behavior. The State is, therefore, not required to prove guilt to a certainty. A reasonable doubt is a doubt based on reason and common sense. It must come from a fair and rational consideration of the evidence, or lack thereof, in a case. Reasonable doubt does not mean a vague or speculative doubt or a mere possible doubt. It is the kind of doubt that a fair, reasonable and intelligent juror would honestly entertain after a careful and conscientious consideration of all of the evidence.

This error is also relevant to the second penalty phase, as the court there repeated the erroneous instruction to the sentencing jury regarding accomplice liability. This error is outlined herein in a separate claim. See Claim XVI. 10

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NT 11/12/96 at 152-153. This instruction was far too vague and did not clearly define the standard of proof required to overcome the presumption of innocence. It is confusing and fails to comply with clearly established Supreme Court precedent. The charge lessened the burden of proof required to prove Petitioner's guilt and violated due process. 34. The instruction to Petitioner's jury did not define what quantum of proof is

necessary, and never actually defined the standard for beyond a reasonable doubt. Because there is a reasonable likelihood that the jury applied the instruction in a way that violated the Constitution, the instruction violated due process and the Fifth and Sixth Amendments. C. 35. Prior Inconsistent Statements. The court, relying on an unconstitutional provision codified in Delaware,

instructed the jury that it could consider prior inconsistent statements of witnesses as substantive evidence. Indeed, the court even went so far as to tell the jury that "the jury may convict on such statement if it is satisfied beyond a reasonable doubt that the statement is true." NT 11/12/96 at 149. This instruction was based upon Delaware law which states that "[i]n a criminal prosecution, the voluntary out-of-court statements of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value." 11 Del. C. § 3507(a). 36. This provision of law does not comport with the protections afforded an accused

by the United States Constitution. At common law, prior inconsistent statements were not admissible as substantive evidence. The federal rules allow such evidence to come in substantively only if certain safeguards are in place to ensure the reliability of such statements. Here, the prior statement was made to police and was not under oath. There is not sufficient 11

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indicia of reliability to allow its substantive admission. Moreover, the admission of the witness' out-of-court testimonial statement to the police as substantive evidence is barred under the Confrontation Clause. 37. Mario Cruz testified that he saw Petitioner and the co-defendant on the morning

of the murder. He stated that Petitioner and Manley were on the front porch when he left for work at about 7:00 a.m. NT 10/31/96 at 114. If credited, that testimony established an alibi. It would have been impossible for Petitioner to have left home at 7:00 a.m. and still been at the Cavalier Apartments at the time the State claimed he arrived. The prosecutor then impeached Mr. Cruz with his statement to the police, in which he allegedly stated that Petitioner left the house at about 6:45. Id. at 117-120. While the evidence of this prior statement was admissible to impeach Cruz's testimony, it was not admissible as substantive evidence to prove that Petitioner left the house at 6:45. The court erred in instructing the jury to consider the statement as substantive evidence, and that a verdict of guilt could be based upon such statement. 38. These instructional errors individually and cumulatively denied Petitioner due

process and his right to a fair trial. To the extent that counsel failed to object to these improprieties, counsel was ineffective. Appellate counsel was ineffective for failing to raise these issues on appeal. IV. PETITIONER 'S RIGHT TO A FAIR AND IMPARTIAL TRIAL WAS VIOLATED WHEN THE PROSECUTION MADE INFLAMMATORY , PREJUDICIAL AND IMPROPER REMARKS TO THE JURY . 39. A prosecutor's obligation in trying a criminal case is not merely to attain a

conviction but to ensure that justice is done. When a prosecutor injects personal opinion or attempts to have the jury make a determination based on passions and prejudice, due process is 12

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violated. The Supreme Court has repeatedly recognized that a prosecutor enjoys a unique position of authority in the courtroom, and must seek not convictions, but justice. Here, the prosecutor overstepped the bounds of zealous advocacy and violated Petitioner's right to a fair trial. 40. In closing argument, the prosecutor improperly informed the jury that Petitioner

had attempted to suppress statements he supposedly gave to Macy's employees incriminating himself in thefts. The prosecutor told the jury that Petitioner "had already lost the motions he had filed for suppression, to try to keep out his own confessions." NT 11/12/96 at 47. It was improper to inform the jury that Petitioner was attempting, based on his constitutional rights, to prevent them from hearing evidence. Even though this was evidence in the underlying case, the prosecutor improperly created the impression that Petitioner was trying to dupe the jury. This argument also led the jury to speculate whether there were confessions in the murder case that were not admitted. Such highly improper remarks violated Petitioner's right to due process. 41. The prosecutor also repeatedly told the jury that Petitioner committed the thefts

from Macy's in spite of the fact that Petitioner was not convicted of those crimes. Id. at 45-46. This, too, was improper. 42. The prosecutor improperly asked the jury to "complete the journey" of justice

started by the victim. Such argument was highly prejudicial. He told the jury: That's what he was planning on doing, but that journey was never completed. It was started, and it was never completed. It was his journey to head to justice. It was never done. But now, today, you have the opportunity to complete that journey. Justice can be done for Kristopher Heath. He can't do it for himself.

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NT 11/12/96 at 77. This error was repeated in the State's rebuttal summation. "And it will be your function to finish what was started one year ago today, when Kristopher Heath set out to come to this courtroom and to do justice." Id. at 123-124. Petitioner's counsel objected to these comments. Id. at 126. His request for a curative instruction was denied. Id. ("I don't think the State overreached in its closing, and the request is denied"). The prosecutor made this argument to appeal to the passions and prejudice of the jury and to divert their attention from the lack of evidence of guilt. Such argument was highly improper. The court erred in overruling the objection and in denying the request for a curative instruction. 43. The prosecutor also improperly vouched for the credibility of its expert witness,

Agent Kinard, of the Bureau of Alcohol, Tobacco and Firearms. Agent Kinard testified that he performed an atomic absorption test to determine if there was gunpowder residue on the clothing or hands of Petitioner or the co-defendant. NT 10/31/96 at 130. None was found. Agent Kinard went to great lengths to explain to the jury that this result was not surprising. Id. at 133-134. Part of the defense strategy was to discredit Agent Kinard's testimony in this regard through cross examination and to argue that the lack of gunshot residue raised a reasonable doubt. See NT 11/12/96 at 97-99 (Stevenson closing argument). Thus, the credibility of this witness was a crucial determination for the jury. Yet, the prosecution was improperly permitted to vouch for his credibility: "His job is not to come in here and do anything for any party but to tell the truth." Id. at 118. Such vouching was improper and denied Petitioner a fair trial, particularly in light of the dearth of direct evidence of guilt. The State relied almost exclusively on circumstantial evidence. Thus, this circumstantial evidence of innocence, that Petitioner had no residue on him, was a critical fact. 14

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44.

The prosecution improperly demeaned the defense and the defense strategy. For

example, the prosecutor stated, "He was in his car ladies and gentlemen. To get you to try to believe otherwise is silly. It's silly." Id. at 111. He also described the defense strategy as "ludicrous." Id. at 109. Such denigration of the defense strategy is improper and violates due process. 45. The prosecution also improperly shifted the burden of proof during his

summation. He questioned why the defense did not present an alibi. "If they're not at Cavaliers (sic) Country Club Apartments, where is their alibi witness, Delphine Brown? Where were they?" Id. at 122-123. The law is quite clear that the defense has no burden to present any evidence. The prosecutor's argument that the defense was required to prove alibi was highly improper. Neither Petitioner's counsel nor co-counsel said anything about alibi. Nor did either file any notice of alibi. Putting such a question in the jury's mind shifted the burden of proof and violated due process. 46. To the extent that defense counsel failed to object to all of these improprieties,

counsel was ineffective. The failure to object to improper argument by the prosecution amounts to deficient performance. Petitioner was prejudiced by counsel's deficiencies. As stated above, the State's entire case was based upon circumstantial evidence. The prosecution's improper arguments were plainly designed to inflame the jury and take the focus off of the lack of direct evidence of guilt. Petitioner is entitled to a new trial.

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V.

PETITIONER 'S ATTORNEYS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO PRESENT EXCULPATORY EVIDENCE IN VIOLATION OF PETITIONER 'S RIGHTS UNDER THE FIFTH , SIXTH AND FOURTEENTH AMENDMENTS . 47. The State's theory at trial was that Petitioner was the driver of the vehicle

identified at the scene and that Manley, the co-defendant, was the shooter. The State presented several witnesses who described the shooter as a black male.6 See NT 10/31/96 at 59 (Susan Butler); id. at 74 (Phillip Hudson); id. at 90 (Lance Thompson). The State also presented a witness who testified that he saw two men in a car in the parking lot as he left for work and that he believed they were black. Id. at 43 (Michael Chandler). Several eyewitnesses would have refuted these facts, but were never called at trial. Petitioner's counsel were ineffective for failing to present this evidence to the jury. 48. Police reports that were turned over to the defense prior to trial contained

information and statements given by four witnesses, whose accounts of the events differed in significant ways from the theory presented by the State. NT 2/6/03 at 47-48 (trial counsel's testimony that he was provided police reports). Indeed, several of these witnesses describe white individuals at the scene, either in the car or leaving the immediate area of the shooting. Given that Petitioner's attorneys argued that there was reasonable doubt as to Petitioner's involvement in the killing, there was no reasonable basis for counsel's failure to call witnesses who would have directly refuted the State's theory of the case. 49. Three of these witnesses described the assailants to police as white. Carol

Schweda Trzepacz told police shortly after the shooting that she had seen a man in a car in the

6

Manley is African American. 16

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parking lot as she left for work and that man was white. See Trzepacz Statement, Appendix.7 Marlene Farmer Ijames told police shortly after the shooting that she saw a white male, 5'8", medium build, walk quickly away from the victim, who was lying on the ground, get into the driver's side of a dark colored vehicle with Delaware tags and drive away. See Ijames Statement, Appendix. Jessica Wing also told police that the driver appeared to be white. She stated that she saw a blue car leaving the parking lot just after the shooting and she saw the driver's hands, which were white. See Wing Statement, Appendix. 50. None of these witnesses were interviewed by the defense or called as witnesses at

trial. Their testimony would have directly contradicted the eyewitness testimony presented by the State that both assailants were black. Indeed, Jessica Wing's statement that the driver was white directly contradicted the State's theory that Petitioner was the driver. 51. At the hearing on Petitioner's post conviction litigation, trial counsel conceded

that he should have presented the four witnesses described above. NT 2/6/03 at 47 ("if that witness was deemed to be helpful to us, we should have called them if we did not"). There was no strategic decision not to call these witnesses. Counsel's performance was deficient. Petitioner was prejudiced by counsel's deficiencies as there is a reasonable probability that the outcome of the proceedings would have been different. 52.
7

Counsel was also ineffective for failing to rebut testimony presented by the co-

This witness testified at a hearing on Petitioner's Rule 61 petition that the person she saw in the car was white or hispanic. NT 2/6/03 at 67. Another witness, Lance Thompson, testified at trial that the person he saw was black, but that he could not describe him. NT 10/31/96 at 90. However, in notes taken by Detective Lee, there is an indication that Thompson was unsure of the race of the individual. See Lee's Notes re: Thompson, Appendix. Moreover, Thompson has told undersigned counsel that he could not tell the race of the person that he saw enter the car after the shooting. 17

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defendant that Petitioner was the shooter. As described elsewhere in this petition, Manley's attorneys presented the testimony of Dorothy Hackett. Ms. Hackett testified that she heard shots and looked out the window of her apartment. She saw a black man with a gun heading toward her. NT 11/8/96 at 6-8. She testified that she identified the man in a photographic array the same day as the shooting and positively identified Petitioner in court as the man she saw with the gun. Id. at 19-20. This highly damaging testimony was not presented by the State, but by the codefendant.8 53. This evidence could have been easily rebutted by the testimony of Phillip Hudson,

a State witness. Mr. Hudson testified that he heard the shots, looked out his bedroom window, and saw a man running past. NT 11/31/96 at 69-70. He described the man as a black male, stocky, weighing about two hundred pounds. Id. at 74. He was not asked to make an identification in the courtroom, although he could have. Indeed, shortly after the shooting, he was taken to the police station, where he positively identified Manley in a photographic array. See Hudson Statement, Appendix. He has also recently informed undersigned counsel that he recognized Manley in the courtroom and would have identified him if he had been asked. See Declaration of Phillip Hudson, Appendix.9 As stated above, trial counsel had been provided the police report. Yet, counsel failed to present this identification testimony to the jury. Counsel's

Petitioner has submitted that the state court erred in denying his request for severance based, in part, on the admission of this testimony. See Claim II. At the second penalty hearing, Manley's attorneys introduced evidence, through a stipulation to Hudson's statement, that he identified Manley in a photographic array. NT 11/29/05 at 65-66. The jury that convicted Petitioner of first degree murder never heard this testimony. 18
9

8

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performance was deficient and Petitioner was prejudiced.10 54. Trial counsel was also ineffective for failing to point out multiple inconsistencies

in the evidence regarding the arrest of Petitioner. For example, Officer Danese and Officer Stark were working as partners on the day in question and were in the same vehicle during the chase of the car alleged to have been at the scene. The differences in their testimony cannot be reconciled. 55. Officer Stark testified that he was the passenger in the patrol car. Danese was

driving. Stark testified that as they drove eastbound on Washington, he looked out the passenger window, to his right, and saw the vehicle on Nineteenth Street. He jumped out and ran toward the car and saw no one near it. NT 11/4/96 at 134. 56. Danese, however, testified that as he ran down Nineteenth Street, he saw two

individuals near the car whom he chased. Id. at 91-92; 114-116. It defies logic that Danese, who was driving the patrol car, could have gotten out of the driver's side, ran around the car and somehow arrived at the scene ahead of his partner. Counsel never pointed out these inconsistencies to the jury. 57. Trial counsel was ineffective for all the reasons described above.11 Petitioner was

prejudiced by counsel's deficient performance. To the extent that appellate counsel failed to
10

Counsel were also ineffective for failing to present the testimony of Debra Norris at trial. She testified at the second penalty hearing that she saw the shooter run around behind building 10A after the killing. NT 11/29/05 at 31. That is the opposite direction from the vehicle that other witnesses described leaving the scene. This evidence would have further called into question the State's theory that the shooter left the scene in Petitioner's car. Her statement, consistent with this testimony, was turned over to counsel, but she was never presented to the jury. Prior to the commencement of trial, Petitioner pointed out to the court that he was unhappy with trial counsel, and requested a continuance. Petitioner had retained private counsel, but because the trial court denied his request for a continuance, private counsel was unable to represent Petitioner. NT 10/21/96 at 30. The court erred in denying this request. 19
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fully develop this issue on appeal, counsel was ineffective. VI. PETITIONER 'S RIGHT TO A FAIR TRIAL AND TO DUE PROCESS WAS VIOLATED WHEN THE PROSECUTION SUBMITTED EVIDENCE OF OTHER CRIMES TO THE JURY AND WAS PERMITTED TO READ PETITIONER 'S STATEMENT REGARDING THE UNDERLYING THEFT CHARGE. 58. Evidence of other crimes allegedly committed by a defendant is inadmissible

except in certain narrow circumstances. When such evidence is admitted, the jury should be promptly and clearly instructed that the evidence is not admissible to prove guilt. Here, the court improperly admitted evidence of other crimes and failed to fully instruct the jury regarding such evidence. The court also improperly admitted Petitioner's statement regarding the Macy's theft. Such improprieties violated due process and deprived Petitioner of a fair trial. 59. Petitioner, who was employed at Macy's, was charged with stealing gift

certificates from the store. Kristopher Heath, the victim in this case, was employed in security for Macy's and was involved in the investigation of the thefts. In spite of the fact that Petitioner had not been convicted of these charges, the court permitted the introduction of these allegations in Petitioner's murder trial. The court also improperly allowed the admission of Petitioner's statement in connection with the theft charges. The probative value of that statement was outweighed by the prejudice created by its admission.12 Indeed, in the statement that was read to the jury, Petitioner provided details of the thefts, including the technique he used and the dates

Additionally, the existence of the statements given to police, wherein Petitioner allegedly admitted to the thefts, negates the motive for the killing alleged by the State. Regardless of whether Mr. Heath was available for the trial on the theft charges, the admissions to police would have been admitted as evidence. See NT 11/4/96 at 163-164 (Detective W. Thomas Ford's testimony regarding statements). Petitioner had already litigated and lost a motion to suppress his statements. See NT 11/4/96 at 172 (testimony of prosecutor assigned to theft case). Thus, Petitioner's statements would be admitted regardless of whether Mr. Heath was in court. 20

12

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involved. NT 11/4/96 at 48-52. Such evidence was highly prejudicial and had no probative value with respect to the homicide and related charges. 60. In addition to the basic error of admitting this evidence, the court further erred in

failing to give an immediate limiting instruction to the jury. The court did instruct the jury in its final instruction, eight days later, in regard to this evidence. NT 11/12/96 at 146-148. Because of the highly prejudicial nature of this evidence, however, the court should have instructed the jury at the time of its admission, to avoid any confusion or prejudice. 61. Further prior bad acts evidence was also improperly admitted. The court

permitted the testimony of Kevin Powlette, who testified that approximately a week before the shooting, Petitioner had told him that he was thinking of getting a gun for his protection. NT 11/4/96 at 214-215. That testimony was inadmissible. 62. First, this evidence was not relevant. The State has never contended that

Petitioner was the shooter or that he ever possessed a gun in connection with this crime. Indeed, the State's theory was that the co-defendant possessed the gun and that additional bullets were recovered in co-defentant's coat pocket. NT 10/30/96 at 146. 63. Additionally, this testimony regarding Petitioner's statement was hearsay. It was

an out-of-court statement that was certainly offered for the truth of the matter asserted. The State argued at trial that the statement was admissible as an admission against penal interest. Id. at 201-202. However, since there was never any evidence that Petitioner possessed a gun, it is not such an admission against interest. Moreover, Petitioner's statement that he was considering getting a gun was not against penal interest, since it is not illegal to own a gun. In any event, the prejudicial nature of this evidence far outweighs any probative value. 21

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64.

The court's admission of other crimes evidence regarding the theft charges,

Petitioner's statement in regard to those charges and the statement allegedly made by Petitioner regarding getting a gun violated due process and Petitioner's right to a fair trial. To the extent that counsel failed to fully object to the admission of this improper evidence and failed to ensure proper curative instructions, counsel was ineffective. Counsel was also ineffective on appeal for failing to fully raise these issues. Petitioner is entitled to a new trial. CLAIMS RELATED TO THE PENALTY PHASE OF TRIAL: VII. ERRORS IN THE JURY INSTRUCTIONS PRECLUDED PETITIONER 'S CAPITAL SENTENCING JURY FROM GIVING FULL EFFECT TO MITIGATING EVIDENCE, IN VIOLATION OF THE EIGHTH AMENDMENT; TRIAL AND APPELLATE COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE. 65. The jury instructions at capital sentencing must properly guide the jury through

the process of imposing sentence to ensure the jury decision is made constitutionally. Improper instructions on aggravating and mitigating circumstances, burdens of proof, unanimity, and weighing implicate the Eighth and Fourteenth Amendment's prohibition on arbitrary or capricious capital sentencing. Trial and appellate counsel were ineffective for failure to raise these issues, in violation of the Sixth and Fourteenth Amendments. 66. The jury instructions at Petitioner's capital sentencing trial were improper in

multiple respects. First, the instructions regarding jury unanimity were confusing. It is reasonably likely that the jury understood the instructions to allow the non-unanimous finding of a statutory aggravating circumstance. Second, the trial court instructed the jury that individual jurors could consider any aggravating circumstances, even those not found by a unanimous jury. Third, the trial court failed to inform the jury of the burden of proof that applies to mitigating

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circumstances, thus improperly restricting the jury's ability to consider and give full effect to mitigating evidence. Fourth, the instructions improperly defined mitigating circumstances, again unconstitutionally limiting the mitigating evidence considered and given effect by the jury. Fifth, as described in Claim XV, the jury instructions failed to properly define reasonable doubt. 67. The jury charge was so confusing as to make it reasonably likely that the jury

understood that the finding of statutory aggravating circumstances need not be unanimous. The jury was instructed that during the weighing process, unanimity was not required for consideration of aggravating circumstances: [A]s to the sentencing recommendation question, you do not have to unanimously agree that a particular aggravating or mitigating circumstances has been established as to a particular defendant in order for you to individually consider such an aggravating or mitigating circumstance. NT 12/5/05 at 143-44. Immediately following this instruction, the trial court read each of the four statutory aggravating circumstances argued by the State and instructed the jurors, "In order to find that the above statutory aggravating circumstance has been established, you must find that the State has established all of the following elements beyond a reasonable doubt." NT 12/5/05, 144, 145, 146. This instruction omitted the crucial word "unanimously." There is a reasonable likelihood the jury did not understand ­ especially given the previous instruction that aggravating circumstances need not be found unanimously to be considered during the weighing process ­ that the aggravating factors must be found unanimously. 68. The only jury charge describing the weighing determination misstated the law

regarding the weighing process, and therefore created a barrier to the sentencer giving full effect to mitigating evidence in violation of the Eighth and Fourteenth Amendments. The trial court

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instructed the sentencing jury: Each of you must weigh in the balance any aggravating or mitigating circumstance as to a particular defendant that in your mind has been established by the evidence, whether or not any other jurors are likewise convinced. NT 12/5/05 at 143. The phrase "in your mind has been established by the evidence" is not a legal burden of proof, and certainly does not describe reasonable doubt. Thus, the jurors were instructed to consider any aggravating circumstances, including those that they had not found beyond a reasonable doubt.13 69. The purpose of the requirement that aggravating circumstances be found beyond a

reasonable doubt is to prevent arbitrary or capricious imposition of the death penalty. By instructing the jury to weigh aggravating circumstances that were not found beyond a reasonable doubt, the trial court allowed arbitrary or capricious sentencing and skewed the process in favor of death.14 Although the jury did not find unanimously all of the aggravating circumstances argued by the State, individual jurors in their weighing determinations may have considered the statutory aggravating circumstance that was not unanimously found beyond a reasonable doubt, as well as any or all of the non-statutory aggravating circumstances, none of which were required to be found beyond a reasonable doubt. 70. The trial court did not inform the sentencing jury that the proper burden of proof

to apply to mitigating circumstances is preponderance of the evidence. The trial court explained
13

In fact, this was the intention of the trial court. See NT 12/1/05 at 17-22 for a discussion of this instruction. The State argued four statutory and eight non-statutory aggravating circumstances. The jury's findings on the non-statutory aggravating circumstances are unknown, although the jury was instructed to consider non-statutory aggravating circumstances in the weighing process. NT 12/5/05 at 139. 24
14

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that at least one aggravating circumstance must be found beyond a reasonable doubt. See NT 12/5/05 at 135, 138, 144, 145, 146, 147. At no time during the jury charge did the court state a burden of proof for mitigating circumstances. Thus, the instructions led the jury to believe, incorrectly, that mitigating circumstances must be found beyond a reasonable doubt. The jury instructions thus created a barrier to the sentencer's consideration of all mitigating evidence, and violated Petitioner's Eighth and Fourteenth Amendment rights. 71. In its preliminary instructions to the jury, the trial court gave the following

instruction regarding aggravating and mitigating circumstances: The burden is upon the State to prove beyond a reasonable doubt all of the facts necessary to establish each and every element of each of the four statutory aggravating circumstances to each defendant. . . . The law does not specify mitigating circumstances, but the defense may offer evidence relating to any mitigating circumstance which it contends exists in a particular case. NT 11/16/05 at 25. The trial court explained that the jury must find aggravating circumstances beyond a reasonable doubt and defined reasonable doubt, NT 11/16/05 at 26-27, but did not at any time explain that the correct burden of proof to apply to mitigating circumstances is the preponderance standard. A reasonable juror would understand from these instructions that mitigating circumstances as well as aggravating circumstances must be found beyond a reasonable doubt. 72. In describing the weighing process, the court used the same wording to describe

the jury's determination of both aggravating and mitigating circumstances: "the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist." NT 11/16/05 at 29. A reasonable juror would conclude from this instruction that any finding as to aggravating and mitigating circumstances is considered with the same burden of proof. 25

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73.

The trial court's constitutionally infirm instructions continued in the closing

penalty phase charge: The burden is on the State to establish beyond a reasonable doubt the existence of any statutory aggravating circumstance. ... If the jury finds beyond a reasonable doubt the existence of one or more statutory aggravating circumstances for a particular defendant, the jury shall then report to the Court by the number of affirmative and negative votes as to such defendant its recommendation on the question as to whether, by a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist. TR 12/5/05, 141-142. Again, the trial court referred to aggravating and mitigating with the identical phrase, "found to exist." The instructions also specify the different burden of proof for the weighing process ­ the preponderance standard. A reasonable juror would conclude that aggravating and mitigating circumstances are given the same burden of proof, and that the weighing process uses a different burden of proof. Because the jury most likely applied the reasonable doubt standard to mitigating circumstances, there is a reasonable possibility that the jurors failed to find, and thus failed to give full effect to, mitigating circumstances. 74. The trial court's definition of mitigating circumstances unconstitutionally required

a nexus between the mitigating circumstance and the criminal conduct. The trial court told the jury: A mitigating circumstance is any factor which bears upon the particular circumstance or details of the offense or the character and propensities of the particular defendant which tends to make that particular defendant's conduct less serious, and, thus, makes the imposition of the penalty of life imprisonment . . . more appropriate. NT 12/5/05 at 139. The phrase "which tends to make that particular defendant's conduct less

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serious" requires that mitigating evidence be linked to the defendant's conduct and make that conduct "less serious." This is constitutional error. A capital sentencing jury must be allowed to consider a wide range of information concerning the background of the defendant. Evidence extraneous to the crime is relevant. This instruction precluded the jury from giving full effect to mitigating evidence. 75. Individually and cumulatively, these multiple errors in the jury instructions served

to confuse the jury regarding the definition of aggravating and mitigating circumstances, the burdens of proof, unanimity, and weighing, particularly when considered in conjunction with the inadequate reasonable doubt instruction. See Claim XV. 76. Counsel was ineffective for failing to seek proper instructions at the outset of the

penalty phase proceedings and when the judge instructed the jury, and for failing to object. Appellate counsel was ineffective for failing to litigate this issue on direct appeal. These errors deprived Petitioner of his rights under the Sixth, Eighth and Fourteenth Amendments. Petitioner is entitled to a new sentencing hearing. VIII. THE STATE 'S PEREMPTORY STRIKES ON THE BASIS OF RACE VIOLATED PETITIONER 'S RIGHT TO A FAIR TRIAL BY AN IMPARTIAL JURY , AS PROTECTED BY ARTICLE 1, SECTION 7 OF THE DELAWARE CONSTITUTION , AND THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION . 77. This crime took place in overwhelmingly-white Newark, Delaware.15 Petitioner

and co-defendant Michael Manley, both young African-American men from Philadelphia, had been found guilty of the fatal shooting of Kristopher Heath, a white man. Deborah Dorsey
15

As of the 2000 U.S. census, Newark's population of 28,547 people was 87% white and 6% black. (http://factfinder.census.gov/servlet/GCTTable?_bm=n&_lang=en&mt_name=DEC_200 0_PL_U_GCTPL_ST7&format=ST-7&_box_head_nbr=GCT-PL&ds_name=DEC_2000_PL_U &geo_id=04000US10, last accessed Feb. 6, 2008). 27

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Crowell, Heath's girlfriend and a penalty-phase victim impact witness, is also white. In this atmosphere, racially charged due to the nature of the crime and the race of the defendants and the victim, African Americans were unconstitutionally excluded from the jury that decided whether to sentence Petitioner to life in prison or to death. 78. During jury selection, the State exercised its peremptory challenges in a racially

discriminatory manner, in violation of the equal protection clause of the Fourteenth Amendment. See Batson v. Kentucky, 476 U.S. 79 (1986). A new sentencing hearing is required. 79. The State used peremptory strikes to exclude more than half of the African-

American venirepersons who remained after excusals for cause. Nine African Americans in the venire were not excused for cause.16 The State used peremptory strikes to exclude five of those nine people from the jury ­ 55% of the remaining African-American venirepersons.17 In comparison, the State struck six of the remaining thirty-seven white venirepersons who remained after cause excusals ­ only 16% of them. Defendant Manley used one peremptory strike against an African American; two African Americans were seated on the jury;18 and one was selected as an alternate.19 The State used eleven peremptory strikes during the jury selection process. Thus,

Forty-seven (47) potential jurors were not excused for cause. Of those, 37 (78.73%) were white, 9 (19.14%) were African American, and one (2.12%) was Hispanic. Myrtle Jackson, NT 11/10/05 at 127; Carla Crowder, NT 11/14/05 at 67; Labrina Ringgold, NT 11/14/05 at 125; Samuel Brown, Jr., NT 11/14/05 at 221; and Brad Thomas, NT 11/15/05 at 19. Stephen Roberts, NT 11/8/05 at 56 was seated as Juror #1; Robert Jenkins, NT 11/10/05 at 211 was seated as Juror #6. Kimberly Morton, NT 11/15/05 at 173, was seated as Alternate #1. None of the alternates selected in this case participated in deliberations. NT 12/5/05 at 159-160 (excusing the alternates before the start of deliberations). 28
19 18 17

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although African Americans made up only 14% of the ven