Opinion
No. 218, 2010.
Date of Remand: January 31, 2011.
Date of Return: May 11, 2011.
Court Below: Superior Court of the State of Delaware in and for Kent County, ID No. 0002006278.
OPINION ON REMAND
This case is on appeal from a decision of this Court denying defendant Adam Norcross's motion for post-conviction relief. The Supreme Court has remanded it with two inquires related to defendant's claim of ineffective assistance of Counsel at his penalty hearing. The Court did not order briefing on remand as the order of remand did not appear to contemplate a re-opening of the record. The Court, however did review pertinent portions of the Supreme Court briefs to help focus its response.
In 2001 Adam Norcross was convicted of first degree murder and associated crimes. The jury recommended a death sentence and the Court imposed it. The conviction and sentence were affirmed by the Delaware Supreme Court. A co-defendant, Ralph Swan, was tried separately, also convicted and sentenced to death. His conviction and sentence were affirmed. Swan also filed a motion for post-conviction relief which was denied by the Court. He appealed and the Supreme Court remanded the case with the same inquiries as in this remand. This Court returned the case to the Supreme Court on March 16, 2011 with its response.
Norcross v. State 816A2d 757 (Del. 2003)
Swan v. State 820A2 342 (Del. 2003)
Swan v. State 2011 WL 976788 (Del. Super.)
On November 4, 1996 Swan and Norcross smashed through a patio door at the home of Kenneth Warren and shot him to death in front of his wife and young son. They stole Mrs. Warren's purse. They were not arrested until February of 2000. A comprehensive and definitive statement of the facts of the crime can be found in the Supreme Court's affirmance opinions.
The Supreme Court's remand pertains to Norcross's claim that his trial counsel were ineffective in failing "to develop and present significant mitigating evidence about his life history, brain damage and mental health deficits." The Court rejected these claims for reasons fully set forth in its post-conviction opinion. Briefly it found that Counsel's judgment that the lifestyle witnesses would have been largely cumulative and one, defendant's mother, would have been dangerously unpredictable with a potential for causing substantial harm to the defense case were reasonable; and likewise with the mental health and brain damage claims because they too had a strong potential for damaging defendant's penalty case. Fundamentally, the Court held that Counsel's decision not to present these avenues of defense were well within the realm of competent representation.
2010 WL 1493120 (Del. Super.)
Against this background, the Supreme Court first asks this Court to consider five U.S. Supreme court opinions and two opinions of the United States Court of Appeals for the Third Circuit: Williams v. Taylor, Wiggins v. Smith, Rompilla v. Beard, Porter v. McCollum, Sears v. Upton, Jermyn v. Horn and Outten v. Kearney. These cases reiterate the basic rule of Strickland v. Washington that to support a claim of ineffective assistance of counsel defendant must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland also goes on to say that "[j]udicial scrutiny of counsel's performance must be highly deferential" and later that "that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."
529 U.S. 362 (2000).
539 U.S. 510 (2003).
545 U.S. 374 (2005).
130 S.Ct. 447 (2009).
130 S.Ct. 3259 (2010).
266 F.3d 257 (3d Cir. 2001).
464 F.3d 401 (3d Cir. 2006).
466 U.S. 668 (1984)
Id., at 687
Id., at 689
Id., at 690
The Court's reasoning behind the requirement of deference was prophetic:
"The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense."
Id.
It has come to pass. The rule today is first, we try the defendant and second, if the verdict is guilty, we try defense counsel. And the consequence is that most serious criminal cases, particularly capital cases, remain open seemingly forever.
Perhaps in recognition of this consequence the United States Supreme court has on three occasions this year relied on the deference rule to reverse Court of Appeals holdings that counsel was ineffective. In Harrington v. Richter it held as follows:
"To establish deficient performance, a person challenging a conviction must show that "counsel's representation fell below an objective standard of reasonableness." [Strickland v. Washington] 466 U.S., at 688. A court considering a claim of ineffective assistance must apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. Id., at 689. The challenger's burden is to show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id., at 687.
With respect to prejudice, a challenger must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 694. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id., at 693. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., at 687.
"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. ___, ___ (2010) (slip op., at 14). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689-690. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." Id., at 689; see also Bell v. Cone, 535 U.S. 685, 702 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690.
562 U.S. (2011) (slip op. 14-15)
This exact language was quoted in Prema v. Moore and these same principles were re-iterated inCullen v. Pinholster. ConsideringStrickland and its progeny, this Court cannot say that the defendant overcame the strong presumption that his trial counsel performed competently. To the contrary it is clear to this Court that trial counsel made appropriate professional judgments.
562 U.S. (2011) (slip op. 5-7)
563 U.S. (2011) (slip op. 16-17)
Second, the Supreme Court asks "whether the defendant has shown prejudice under Strickland." The Court in its post-trial opinion specifically found no prejudice as to each of the claims on remand. The reasons for those findings are stated in the opinion.
2010 WL 1493120 (Del.Super) p. 3,4,5,6
To expand on those general findings, the Court states that they apply both to the jury recommendation of death (by a ten to two vote) as well as the Court's finding that the death penalty was to be imposed. The reasons are best stated by the Supreme Court in its affirmance opinion:
"The aggravating circumstances are, as the trial Judge noted, "overwhelming." What happened on November 4, 1996 was "every family's worst nightmare." Warren and his wife were in their home, relaxing together after a long day of work, enjoying time with their happy, active young son. They did nothing to place themselves in jeopardy, like opening the door to a stranger. They had every reason to believe that they were safe. The fact that Warren was slaughtered in his own home in front of his wife and son is an aggravator of utmost proportions.
"The ruthlessness of the crime is compounded by the fact that Norcross knew he would be confronting Warren. Norcross had a gun, and could have demanded valuables if that was what he wanted. But Warren was given no chance to comply with any demands. He was attacked immediately and brutally murdered. Norcross may have told people that he did not mean to hurt anyone, but his actions belie such self-serving comments. Norcross told the police that he gets a "rush" from breaking and entering, and with friends he joked and bragged about the killing. This was not a robbery "gone bad." It was a vicious, unprovoked, random act of violence of the highest order."
Norcross v. State op. cit at 768
The Court finds that presentation of the evidence omitted by trial counsel would not have effected the ultimate result. The case is returned to the Supreme Court.