IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY. Submitted: January 19, 2005 Decided: January 27, 2005

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1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE, v. MICHAEL JONES, Defendant. Case I.D Submitted: January 19, 2005 Decided: January 27, 2005 UPON DEFENDANT S MOTION TO PRECLUDE EVIDENCE OF AN UNADJUDICATED HOMICIDE DURING THE PENALTY HEARING DENIED. MEMORANDUM OPINION Kevin J. O Connell, Esquire, Assistant Public Defender, New Castle County, State of Delaware, and Jerome M. Capone, Esquire, Wilmington, Delaware, Attorneys for Defendant. Stephen M. Walther, Esquire, Deputy Attorney General, and John A. Barber, Esquire, Deputy Attorney General, State of Delaware, Wilmington, Delaware, Attorneys for the State. ABLEMAN, JUDGE 1

2 Defendant Michael Jones, convicted of capital murder, seeks to preclude the State from offering evidence during his penalty hearing that he committed another unrelated murder. Because the uncharged murder does not relate to a statutory aggravating factor as defined by Delaware s death penalty statute, and because the State will be able to offer clear and convincing evidence of the uncharged murder, Defendant s Motion is DENIED. Facts The alleged facts of this case are detailed in the Court s August 31, 2004 Opinion. 1 The short version is that Darryl Page, a co-defendant, worked as a retail drug dealer for Cedric Reinford, a marijuana/crack wholesaler. Page concocted a scheme to rob and murder Cedric to steal his drug money. Too cowardly to do the deed himself, Page recruited Jones, another member of the drug gang, to do the shooting for him. On November 21, 1999, Jones and Page murdered Cedric in his car, and then went to his home in order to rob his safe. Unfortunately, Cedric s girlfriend Maneeka Plant, her six-month-old baby, and Cedric s brother Muhammed Reinford were in the home. Jones shot Maneeka several times in the head, killing her. He also shot Muhammed in the face, but he survived to identify Jones as the shooter WL (Del. Super.. 2

3 The Unadjudicated Murder On May 29, 1999, someone gunned down Michael Patterson on a busy street corner in Hartford, Connecticut (the Hartford Murder. The police initially suspected that a known criminal named Terrance Mitchell was the culprit. Upon questioning, Mitchell denied involvement and identified the shooter as Quan. Quan is short for Laquan Robinson, one of many aliases used by Michael Jones. Acting on this information, the police showed an eyewitness to the crime a photo line-up including Jones. The eyewitness identified Jones as the shooter. Jones was never tried for this offense, however, presumably because, when the police captured him in North Carolina in 2001, he was immediately extradited to Delaware to answer for the murders of Maneeka Plant and Cedric Reinford. Discussion The State intends to offer, during the penalty phase of his trial for murdering Plant and Reinford, evidence that Jones also murdered Michael Patterson. The State has informed the Court and defense counsel that it will offer this evidence by calling the eyewitness to the Hartford Murder to testify. The State does not intend to use this evidence to prove a statutory aggravating factor necessary for the jury to find beyond a reasonable doubt in order to recommend the death penalty. 2 Instead, 2 The Hartford Murder does not meet any of the statutory aggravating factors, and thus has no relevance to the Death Eligibility Phase. Specifically, 4209(e(i requires evidence that the defendant had previously been convicted of another murder or manslaughter, not just that he had committed one. The State has evidence of many other statutory aggravating factors to support 3

4 the State seeks to admit this evidence as one of many non-statutory factors that the jury may consider during the weighing phase of the penalty hearing. In response to evolving United States Supreme Court precedent on the subject, Delaware utilizes a three-tiered system for imposing the death penalty, codified at 11 Del. C First, a jury must find beyond a reasonable doubt the existence of one of twenty-two statutorily enumerated factors. If the jury so finds, the defendant becomes eligible for the death penalty ( Death Eligibility Phase. The statutory amendment creating the Death Eligibility Phase came in response to the United States Supreme Court case Ring v. Arizona. 3 Ring, distilled to its essence, holds that any fact that is necessary to enhance a defendant s punishment from life to death must be found by a jury beyond a reasonable doubt. Once the jury finds the defendant to be death eligible, it then must consider all the aggravating and mitigating circumstances of the case ( Weighing Phase. In doing so, the jury considers both the statutory aggravating circumstances that made the defendant death eligible, as well as any non-statutory factors either side enters into evidence. The jury then must decide, by a preponderance of the evidence, whether the aggravating circumstances outweigh the mitigating the Death Eligibility Phase, including that the murder was committed during the course of the felony of robbery, that the defendant s course of conduct foreseeably resulted in the deaths of two or more people, that the defendant acted as another s (Page s agent in committing the murders, that the murder was committed for pecuniary gain, and that the murder was the result of substantial planning U.S. 584 (

5 circumstances of the case. If the jury finds that aggravators outweigh mitigators, a death recommendation is appropriate. This Weighing Phase recommendation need not be unanimous. Finally, the judge, considering the recommendation of the jury, makes her own determination whether a statutory aggravating factor has been proven beyond a reasonable doubt, and whether the aggravators outweigh the mitigating circumstances by a preponderance of the evidence ( Judge Phase. If the judge answers both of those questions in the affirmative, the defendant should receive the death penalty. If not, the defendant will be sentenced to life in prison. Defendant objects to the admission of evidence of the Hartford Murder based on Ring. Defendant argues that any fact relating to the defendant s sentence must be found by a jury beyond a reasonable doubt, i.e. that the preponderance standard used in the Weighing Phase is unconstitutional. This objection ignores the fact that the General Assembly and Delaware Supreme Court went to great lengths to ensure that 4209 remained constitutional in the wake of Ring. The Delaware Supreme Court carefully considered both Ring and the post-ring amendments to 4209 in the 2003 case of Brice v. State. 4 There the Court decided that Ring has no relevance to factors that do not enhance punishment, i.e. to any factors other than the twenty-two whose existence is a precursor to the Weighing A.2d 314 (Del

6 Phase. Since the Hartford Murder relates to the Weighing Phase rather than the Death Eligibility Phase, under the current law, Ring does not apply. Substantively, Defendant s objection is nothing more than an invitation to ignore Brice, which, of course, this Court has no power to do. Defendant next moves that the Court should first hold a hearing, outside the presence of the jury, to determine whether the evidence relating to the Hartford Murder is clear and convincing. Defendant is correct that, as other crimes evidence, the clear and convincing standard applies to the Court s admissibility determination. 5 It is on the necessity of a hearing that the defendant s argument fails. As stated, the State will offer testimony of an eyewitness to the Hartford Murder who has consistently identified Michael Jones as its perpetrator. This factual circumstance is identical to that of Zickgraf v. State, in which Justice Moore wrote: Because the evidence of his uncharged conduct is offered from the direct testimony of eyewitnesses to the crime, it is plain, clear, and conclusive as required by [Delaware case law]. 6 The Delaware Supreme Court has already spoken on this issue: eyewitness testimony is per se clear and convincing for these purposes. 7 A hearing on the 5 State v. Cohen, 1992 WL (Del. Super WL at *2 (Del. Supr.; citing Renzi v. State, Del. Supr., 320 A.2d 711 (1974, Kornbluth v. State, Del. Supr., 580 A.2d 556 ( Cohen changed the wording of the evidentiary standard for admitting other crimes evidence from clear and conclusive to clear and convincing, finding that the word conclusive implied a standard even higher than beyond a reasonable doubt. Cohen, 1992 WL at 6

7 subject is therefore unnecessary. 8 Conclusion Because the uncharged conduct at issue does not relate to a statutory aggravating factor and is supported by clear and convincing evidence, Defendant s motion to exclude from the penalty phase of his trial is hereby DENIED. IT IS SO ORDERED. Peggy L. Ableman, Judge cc: Kevin J. O Connell, Esquire Jerome M. Capone, Esquire Stephen M. Walther, Esquire John A. Barber, Esquire Prothonotary *1-2. The quoted text from Zickgraf therefore applies to this analysis, even though it uses the outdated language. 8 It is reasonably apparent to the Court that Defense Counsel seeks a hearing on this evidence not because of any real concern about its admissibility, but rather to secure the tactical advantage of forcing the State to tip its hand before the penalty phase. Cohen and its progeny were not meant to provide discovery advantages to criminal defendants beyond those elucidated in the Superior Court Rules of Criminal Procedure. 7