Opinion
ID Nos. 9904019326, 9904019329 Criminal Action Nos. IN-99-04-0314 through IN-99-04-0319, IN-99-04-0320 through IN-99-04-0325
March 14, 2002
SENTENCING DECISION
Ferris W. Wharton, Esq., Chief Deputy, and Steven P. Wood, Esq., State Prosecutor, Department of Justice, attorneys for State of Delaware.
John P. Deckers, Esq., of Wilmington, Delaware, and Anthony A. Figliola, Jr., Esq. of Figliola Facciolo, attorneys for defendant Luis G. Cabrera.
Jerome M. Capone, Esq. of Wilmington, Delaware, and Thomas A. Pedersen, Esq. of Wilmington, Delaware, attorneys for defendant Luis E. Reyes.
On the cold, gray Sunday morning of January 21, 1996, the lifeless bodies of Vaughn Rowe and Brandon Saunders were discovered in a wooded area inside Rockford Park in the City of Wilmington. Both had been shot in the back of the head. Luis Cabrera and Luis Reyes were indicted in December 1999 for the murders.
Cabrera gave a statement to the Wilmington Police on April 8, 1997 when he was arrested on an unrelated murder charge. Reyes was also charged with the same murder but entered into a plea with the State and testified against Cabrera at the trial for that murder. Cabrera was convicted. The details of that murder and the outcome of that case, especially the sentences imposed, will be discussed later. Because of the possible use at trial of Cabrera's statement, the trials of Cabrera and Reyes were severed. Subsequently, Cabrera moved to suppress his statement. After conducting a hearing on that motion, the Court suppressed it.
Infra at 26.
State v. Cabrera, Del.Super., C.A. Nos. IN-99-04-0314-0319, Herlihy, J. (December 19, 2000).
Cabrera was tried first. The guilt phase of his trial started on January 18, 2001 and ended on February 11, 2001. The jury found Cabrera guilty of two counts of murder in the first degree (as a principal or accomplice). He was also found guilty of two counts of possession of a firearm during the commission of a felony and two counts of conspiracy in the first degree. Because Cabrera had been convicted of the first degree murder of two persons, a penalty hearing followed the guilt phase of his trial. That penalty hearing started on February 13, 2001 and ended on February 15, 2001. The jury recommended the death sentence by a vote of eleven to one. Consistent with the practice of this Court, sentencing was postponed pending the outcome of Reyes' trial.
Reyes was originally scheduled to begin trial on April 10, 2001. Due, how ever, to a sudden, last-minute medical emergency in the family of one of the prosecutors, it was postponed. The defense did not object because this delay enabled them to further investigate an out-of-state witness they had been trying to find and interview. The new trial date was set to start with jury selection on September 11, 2001. For obvious reasons, the selection did not start that day. Instead, jury selection started on October 2, 2001.
The guilt phase of Reyes' trial ended late in the afternoon on October 19, 2001. The jury found Reyes guilty of two counts of murder in the first degree (either as a principal or as an accomplice), two counts of possession of a firearm during the commission of a felony and two counts of conspiracy in the first degree. Again, since the murder convictions were for the deaths of two persons, a penalty hearing was convened on October 23, 2001 and concluded on the October 26, 2001. The jury returned a recommendation of a sentence of death by a vote of nine to three.
Delaware law provides that where one or more enumerated statutory aggravating circumstances exist a defendant is eligible for the death penalty. One of those circumstances involves the murder of two or more persons:
The defendant's course of conduct resulted in the deaths of 2 or more persons where the deaths are a probable consequence of the defendant's conduct.
Cabrera's and Reyes' convictions of the first degree murder of Rowe and Saunders triggered this section and the need for the penalty hearings. Delaware's capital punishment law requires the parties to give notice prior to the hearing of any aggravating or mitigating circumstances which they intend to introduce.
As to Cabrera, the State notified him that it intended to rely upon this statutory aggravating circumstances:
The defendant's course of conduct resulted in the deaths of 2 or more persons where the deaths are a probable consequence of the defendant's conduct.
State's letter to defense counsel (February 14, 2001) at 1.
A statutory circumstance must be proven beyond a reasonable doubt.9 In the same notice, the State said it intended to rely upon various non-statutory aggravating circumstances:
1. the particular circumstances and details of the commission of the offenses set forth in the instant indictment;
2. the character and propensities of the defendant;
3. the particular circumstances and details of the murder of Fundador Otero, said murder being the subject of criminal charges set forth in IN97-04-1074 through 1077, and the fact that the defendant was convicted of the aforecited charges;
4. the fact that the defendant was serving a sentence of life imprisonment without the possibility of parole as a result of his conviction in 1998 for murder which he committed in 1995;
5. the defendant's 1990 convictions for Forgery Second Degree and Attempted Theft Misdemeanor;
6. the defendant's 1993 conviction for Criminal Impersonation;
7. the defendants 1996 conviction for two counts of Assault Third Degree;
8. the impact of the murder of [Saunders] upon his family; the impact of the murder of [Rowe] upon his family; and
10. any relevant information set forth in the defendant's disciplinary file as maintained by the Department of Correction.
State's letter to defense counsel (February 14, 2001) at 1-2.
The jury was told these circumstances had to be proven by substantial and reliable evidence.
Cabrera notified the State that he intended to rely upon five mitigating circumstances:
1. [Cabrera] is a loving father, whose death would have a devastating effect upon his five year old daughter.
2. [Cabrera], while in prison [sic] continues to give support to his family and friends.
3. A sentence of death would have a devastating effect upon his family in particular, his father.
4. [Cabrera] has shown that he can adapt to prison life and poses no future threat to society.
5. [Cabrera] has demonstrated the ability to be rehabilitated while in prison.
Letter from defense counsel to the State (February 14, 2001).
Prior to the start of Reyes' penalty hearing, the State notified the defense of the statutory aggravating circumstance upon which it intended to rely.
The defendant's conduct resulted in the deaths of 2 or more persons where the deaths are a probable consequence of the defendant's conduct.
State's letter to defense counsel (October 22, 2001) at 1.
In addition, the State listed the non-statutory circumstances which it intended to present.
1. The nature and circumstances of the commission of the offenses as established by the evidence presented at the guilt phase generally, and in particular the following:
(a) The premeditated and planned nature of the murders;
(b) The fact that the victims were executed with gunshots to the head;
(c) the fact that the murders were committed for essentially trivial reasons.
2. The character and propensities of the defendant in general, and in particular the following:
(a) The defendant's culpability for the murder of Fundador Otero as detailed in his testimony in State v. Cabrera, IN97-04-1074 through 1077 given on May 26 and 27, 1998, in his statement to Burlington County investigators on March 22, 1997, and in his guilty pleas to murder second degree, burglary first degree and conspiracy second degree in IN97-04-0107, 1078 and 0108;
(b) The defendant's disciplinary and treatment histories while incarcerated as reflected in prison records provided under separate cover.
3. The impact of the murder of [Row e] upon his family; and
4. The impact of the murder of [Saunders] upon his family.
Id. at 1-2.
Reyes supplied his notification to the State of mitigating circumstances which he intended to present.
1. [Reyes]' youth; he was a teen-age high school student when these offenses occurred.
2. [Reyes]' dysfunctional upbringing:
a. He was born to a teenage mother who was not prepared to be a parent and who took no interest in parenting.
b. His father abandoned him at an early age.
c. He was raised for the most part by his maternal grandmother, who was not equipped to raise him.
d. He lived for several years of his childhood in a home with much domestic violence, both physical and verbal.
e. His family of origin has an extensive history of substance abuse, addiction and criminal behavior.
3. The malignant influence of [Cabrera] on the life and actions of [Reyes]. During [Reyes] teenage years, [Cabrera] served as a father figure for [Reyes]. [Reyes] felt compelled to participate in criminal acts with [Cabrera] in order to gain his love and respect.
4. The favorable prognosis for a positive adjustment to life in prison.
5. The love of [Reyes]' family members who will be devastated in the event the State is permitted to execute him.
a. [Reyes]' execution will leave his daughter fatherless.
6. [Reyes] role as an accomplice in this case should be considered in proportion to [Cabrera]'s role as principal.
7. Mercy.
Letter from defense counsel to State (October 22, 2001) at 1-2.
He reserved the right to supplement the list of mitigators depending upon a review of Reyes' prison records.
When a first degree murder conviction goes to a penalty hearing, the jury is asked to answer two questions:
Upon the conclusion of the evidence and arguments the judge shall give the jury appropriate instructions and the jury shall retire to deliberate and recommend to the Court an answer to the following questions:
1. Whether the evidence shows beyond a reasonable doubt the existence of at least 1 aggravating circumstance as enumerated in subsection (e) of this section; and
2. Whether, by a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bear 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.
The juries in the Cabrera and Reyes trials were instructed they had to answer "yes" to the first question. This was because their verdict had established each defendant had murdered two people. This instruction is in accordance with Delaware law. Adhering to that instruction, the juries in both penalty hearings answered the first question with a 12-0 affirmative vote. As to the second question, the penalty recommendation, the juries returned different votes. Cabrera's jury voted eleven "yes" and one "no" on that question. Reyes' jury voted nine "yes" and three "no."
Bailey v. State, 503 A.2d 1210, 1214 (Del.Supr. 1984).
Both juries were instructed that their answers to the second question, its recommendations, would be given great weight. Delaware law specifies that if the death sentence is to be imposed, the trial judge engage in the same analysis and answer the same two questions which the jury answered. That analysis starts with the murders themselves and the evidence of the guilt of each defendant. In addition, the State, while not phrasing it exactly the same in its pre-penalty hearing notice letters, listed the circumstances of the murders as a non-statutory aggravating circumstance.
THE MURDERS The Evidence
Much of the evidence introduced in the guilt phases of the two trials was the same. But, some was different. The evidence in both trials showed that Rowe and Saunders were found dead in Rockford Park in the City of Wilmington. Their bodies were discovered by a man walking his dog in the park around 8:00 a.m. on Sunday, January 21, 1996. Their bodies were lying face up next to each other covered by a maroon bed sheet, some leaves and dirt. Nearby there were signs the ground had been disturbed in order to get at dirt to cover the two victims. There was no shovel recovered at the scene.
There was no evidence that Rowe and Saunders had been killed where their bodies were found. The bodies were in an area about 60-70 feet from the edge of Vista Drive in the Park. There were indications the bodies had been dragged from the edge of Vista Drive to where they were found. The autopsy of Rowe revealed what appeared to be drag marks (although it is uncertain where those marks were inflicted; at Rockford Park or elsewhere). Rowe's jeans were down around his ankles, consistent with his body being dragged from Vista Road to the wooded area w here it was left.
Full autopsies were done on both victims. Rowe's autopsy revealed an entry gunshot wound in the back of the head. The bullet penetrated his brain and was found in his neck and turned over to the police. Across the top of his head was a bullet graze-type wound, V-shape about 3 1/2 inches long. He also had a 5/8 inch laceration below his right eye. But, he also had a significant laceration on his lower lip and injury to the inside of his mouth. This injury came from a forceful blow. Rowe had bruises on his abdomen and rib cage and internal examination revealed lacerations to his spleen, liver and left kidney. These wounds caused internal bleeding. The medical examiner testified that Rowe would have survived those wounds with timely medical treatment, but he could not walk long with them. There was another, and unusual, injury found on Rowe's upper left torso. It was described as a pattern injury. There were two such markings, one consistent with the buckle end of a belt and the other with a tipped "V" shaped end of a belt. All the non-gun shot wounds were inflicted in a short period before he w as shot.
Rowe died of the gun shot wound entering the back of his head. There was no evidence, for various reasons, that the gun was held close to Rowe's head. The medical examiner offered several explanations.
Saunders did not suffer the injuries to the face and torso and internal organs which Rowe suffered. He was shot behind the right ear. The bullet went towards the right side and was recovered in the brain. It was turned over to the police. There was no evidence of the shot being at close range. Saunders died of his bullet wound.
In addition to the bullets, the police recovered, at the Medical Examiner's Office, a wrist watch Rowe had been wearing. It had a memory bank for telephone numbers, one of which was for a female whose number was 655-1094. By stipulation, that number was listed for 302 North Franklin Street in Wilmington and was the residence of Cabrera's father, Luis Cabrera, Sr.
Among Saunders' possessions at his home, the police found a business card, "ISS Servisystem, Inc.," with an address in north Wilmington. Handwritten on it is "434-6154 Big Lou." Four small bags of marijuana were found in Saunders' clothes, too. Saunders' mother told the police at the Medical Examiner's Office that his pager in a blue plastic case, was missing. The police put out an alert for it.
On February 3, 1996, Cabrera brought Saunders' blue pager to one of the Page One stores in Wilmington. The pager was identified as Saunders' by a code number inside it and by a stipulation its number 784-4041 was Saunders' pager number. The batteries had been removed which erased all the telephone numbers stored. Page One does not give receipts for returned pagers. But, when Cabrera returned Saunders' blue pager, he also bought one. In this instance, a receipt was generated. His name and an address of "610 W. 20th St. 19805" appear on the receipt.
At this time in 1996, Cabrera and Reyes lived together at that address. It is a three-story house with a basement. Each story is a separate apartment. The defendants lived on the second floor. The tenant on the first floor was Donna Ashwell and the tenants on the third floor were two young women, Clavel Clamamont and Maribel Skjefte.
Ashwell, the first floor tenant, testified in both trials. She lived at 610 from November 1993 through September 1996. She knew Cabrera as a tenant on the second floor for about 1 1/2 years. For a while, Stephanie Cabrera, Cabrera's wife, lived with him but moved out at some point. Even before she moved out, Reyes visited Cabrera. He either moved in with Cabrera after she left or visited him more frequently. Ashwell knew Cabrera as "Big Louie" (phonetic spelling used) and Reyes as "Little Louie." They seemed, she said, like very good friends.
In both trials, Ashwell recalled for the jury that on a Saturday night in January 1996 she heard what she described as a fight in the basement of the apartment building. The basement is accessible only from the exterior of the building and the door is kept locked. The tenants have keys. Prior to hearing the "fight" sounds, she had heard people going up and down the stairs to the second floor causing her dog to bark. The noise in the basement caused her dog to bark again.
Ashwell heard an argument. One voice was Cabrera's who sounded very angry. He asked "Did you f___ his girlfriend?" There was a frightened "no" in response from a voice she did not recognize. After the "no," she heard a metal crashing type noise. Again her dog was agitated. Upset with all this, Ashwell went to the basement and banged on the door. Reyes came to the door and she said, "Take the fight elsewhere or I'll call the police." Reyes asked her not to and said "We'll take it elsewhere." The door and ceiling are configured in such a way that while standing outside, Ashwell was only able to see Reyes.
After this exchange with Reyes, Ashwell returned to her apartment. She called Skjefte who came down. Clamamont was away for the weekend. Ashwell's testimony in the two trials differed slightly but not significantly in what she said happened next, but very shortly after Skjefte came down, Cabrera came into the first floor foyer. He apologized to them and said they were leaving. Skjefte went back upstairs.
While there was some cross-examination about when all this occurred, Ashwell recalls the basement incident as the night before the two bodies were found in Rockford Park. She speculated to others about the coincidence early in the week. In both trials, Ashwell also described a shovel she kept in the yard. She had used it earlier in January to shovel snow. When she went to look for it in February, for the same purpose, it was gone.
Clamamont also testified in both trials. She knew "Little Louie" lived with Cabrera for a while. She knew Cabrera as "Big Louie." The two "Louies" seemed very close. She recognized a picture of Rowe (an autopsy photograph) as someone she had seen several times outside of the defendants' second floor apartment. Clamamont recalled speaking to Ashwell, a day or two after news of the bodies' discovery, concerning the Saturday night incident.
Skjefte did not testify in the Cabrera trial. She testified, however, in rebuttal for the State in the Reyes trial. She knew Cabrera as "Big Louie" and Reyes as "Little Louie" even though she did not recall Reyes' last name. Cabrera and his wife were living on the second floor when she moved in. After Mrs. Cabrera moved out, she saw the two defendants more often.
As to the basement incident, she recalled Ashwell calling her in the late afternoon about a commotion. Skjefte said she went to the basement herself and Cabrera answered the door. Skjefte says Cabrera told her they were taking care of some business. She heard Reyes' voice.
This was consistent with Ashwell's testimony at Reyes' trial that when Skjefte came downstairs, she went outside for a minute or two. When she came back in, Cabrera was behind her.
The Court notes Skjefte told the Reyes jury, but obviously not the Cabrera jury, that Cabrera had a little bit of blood on his hands. After hearing of the bodies' discovery in Rockford Park several days later, she, too, made a connection but chose to do nothing about it.
Bobby Jones testified in both trials. He was a friend of Rowe and Saunders; Saunders through A.I. duPont High School. He also knew Reyes through the school's wrestling team but by the name of "Alex." He also knew a Shayne Whye at A.I. Whye was one of the few people Reyes spoke to there. In Cabrera's trial, Jones said he saw Rowe and Saunders the afternoon of January 20th. In Reyes' trial, he recalled only seeing Saunders. In both trials, he said he spoke to Saunders about getting together later that night at a party. Saunders told him that he was getting together with a fellow from the wrestling team later. Jones identified that fellow as Reyes. After seeing Saunders, Jones went to a "stepping" competition. Later at the party, neither Rowe nor Saunders were there. He called Saunders on his pager but received no response.
Infra at 17.
Whye also testified in both trials. He got to know Reyes at A.I. when both were in tenth grade. They also socialized together. He met Cabrera through Reyes. He also knew Saunders and Rowe. He saw them speaking to Reyes and seemed to be friends. Whye also worked for ISS Cleaning Service in 1995-96 and Saunders worked there at the same time. Saunders, Rowe, Reyes and Whye were all A.I. seniors in 1995-96. Whye went to Rowe's funeral with Reyes, who appeared to be upset while there.
Cabrera's wife testified in both trials. Cabrera was already living in the apartment when she moved in. She recalled Ashwell. Mrs. Cabrera moved out in October 1995 and by that time, she said, Reyes had been living there for a month or more. The two were close like father and son.
In her husband's trial, Mrs. Cabrera testified that he worked for a cleaning service off of Silverside Road. The ISS Cleaning Service business card with "Big Lou" on it found in Saunders' bedroom has a Silverside Road address. While married and living together at 610 West 20th Street, Cabrera had burgundy fitted and flat sheets. She did not take them with her when she moved. While the police showed her a picture of this burgundy sheet covering the victims, she thought it could be one of the sheets.
The colors maroon and burgundy were used somewhat interchangeably in these trials.
Mrs. Cabrera also recalled a telephone call Cabrera received from his sister about trouble at their father's house at 302 North Franklin Street. She was present at her father's house during a conversation, in which Cabrera participated, about a gun. She believed Cabrera took the gun.
Mr. Cabrera, Sr.'s house was searched in April 1997 pursuant to a search warrant. From Mr. Cabrera, Sr.'s bedroom, in a laundry basket, the police recovered a gun.
Mr. Cabrera, Sr. directed the police to his basement when asked where his son slept. There they found a fitted burgundy sheet. They also seized several belts.
Mr. Cabrera, Sr. told the police his son knew he had a gun. The gun was turned over to the Bureau of Alcohol, Tobacco and Firearms. When test fired, it was determined to be the weapon which fired the bullet recovered from Rowe's body. The bullet from Saunders' body was too deformed to make a conclusive ballistic comparison although it bore some similar characteristics. The gun is a .38 special Armenius Titan Tiger. It has unusual rifling characteristics and even before the actual gun was recovered, based on those characteristics found on the bullet, it had been on ATF's list of suspect weapons for the Wilmington Police to look for.
The FBI examined the two sheets. The extent of comparison was that they were sold by J. C. Penney, were the same color and were made by the same manufacturer. No further comparisons could be made since such sheets are not sold in pairs.
The belts which were seized proved to have some significance. Rowe's autopsy revealed belt buckle and tip type injuries to his left chest down from his left underarm. When the Medical Examiner compared one of the seized belts with the pictures of the injuries, it compared most closely. He said it could have caused the wounds. At Cabrera's trial an ex-girlfriend of Cabrera identified that belt as one which was a style Cabrera wore. It stood out from the others the police had seized and showed her. This girlfriend did not testify at Reyes' trial. The belt comparison evidence was not presented in his trial.
With the exceptions so far noted, the evidence in the two trials was very similar. In Reyes' trial, however, there was some additional evidence. Most notable were statements which Reyes made. The first of them came in through the testimony of Elaine Santos, a girlfriend, and by whom Reyes has a child. Santos testified about the time she and Reyes went to the Wilmington Police headquarters in March 1997 where he was to be questioned by police officers from New Jersey. The jury was not told in the guilt phase why the New Jersey officers were here. Before going, the two had talked. Reyes was upset and mentioned something about Cabrera and he being in a basement of their apartment. There had been a fight, Reyes told her. He claimed to her that he had walked in on Cabrera fighting.
This was in connection with an investigation of the murder of Fundador Otero whose charred remains were found in Burlington County, New Jersey. This murder is discussed later, infra at 26-30. The importance of what he told her became clearer later.
One of the New Jersey officers interviewed Santos. She told the officer Reyes and Cabrera lived together on 20th Street for around seven months starting in November 1995. During that time, a man came over to the apartment where he was beaten then taken to the basement where he was beaten more. Reyes, she related, mentioned something about a gun may have been used.
Again the import of this testimony was not know until later.
On the same occasion when Santos was interviewed, Reyes was questioned by another New Jersey officer. Reyes gave a taped statement in which he mentioned being a wrestler in high school. He said he had lived with Cabrera giving an address of 601 West 20th Street. This was around 1995 or 1996. Originally, he got to know Cabrera while Cabrera was dating his mother. Cabrera was his supervisor at ISS at a location near Chuckie Cheese, off Silverside Road, on Concord Pike. A man named Shane worked with him.
Reyes said he had seen Cabrera with a .38 which was black with a brown handle. He believed the gun was Mr. Cabrera, Sr.'s. The gun seized from Mr. Cabrera, Sr.'s house, determined to be the weapon which killed Rowe, is black with a brown handle.
In addition to the testimony of what Reyes told Santos and the New Jersey investigators, this jury was read portions of Reyes' testimony against Cabrera, who went to trial on the Otero murder charge. In it he described living with Cabrera at 601 West 21st Street. He also testified about telling Santos about someone (no name was given) coming over to their apartment and being taken to the basement and beaten.
Besides this testimony, the most significant testimony was presented by Roderick Sterling. He was in jail starting in May 1997 and is serving a long sentence for a serious sex offense. He met Reyes in jail during the summer or fall of 1997. Sterling described overhearing a conversation Reyes had with Sterling's cellmate. This was in 1997. According to Sterling, Reyes mentioned the Rockford Park murders. Reyes knew the victims from school. They did business transactions together which involved sales of marijuana. Both victims and both defendants were involved, he told the cellmate. Reyes reported to the cellmate that Cabrera had bought marijuana from Rowe and Saunders but they had "shorted" him.
Sterling next testified he did not then know who decided to kill Rowe and Saunders. In a statement Sterling gave the police, Reyes said one victim was called over to the basement at 601. That was the street address Reyes mentioned to the cellmate where the victim was beaten in the basement. Sterling believes Reyes said he beat him with a belt. No other weapons were used.
In his recorded statement to the New Jersey police officer, Reyes had given the address as 601, not 610.
Reyes next told the cellmate that an upstairs neighbor came to the basement because of all the noise. She was not allowed in. Reyes and Cabrera decided to take the victim to "the park." The two defendants discussed getting the other person to kill both. The victim was placed in a black BMW which Cabrera drove. Other witnesses had said Cabrera owned such a car at that time. The victim was in the trunk unconscious.
They picked up the second person and drove to Canby Park off Maryland Avenue. They took the two victims to a spot near a softball field where they ended up on the ground. Reyes and Cabrera argued over who was going to do the shooting. The victims were shot while laying on the ground. Sterling did not say if Reyes said who did the shooting. He did say neither defendant expressed opposition to the shooting. Originally, Reyes told the cellmate he and Cabrera left the bodies there. But a car came by and they returned, picked up the bodies and took them to Rockford Park in the trunk of Cabrera's BMW. Reyes also mentioned his girlfriend's name, Santos.
Much of Reyes's defense was an effort to raise reasonable doubt by pointing the finger at others. In rebuttal, the State offered Waymond Wright, an inmate who had befriended Reyes while the two were at the Delaware Correctional Center in Smyrna. Wright testified that Reyes told him he had gone to school with Rowe and Saunders. Several female classmates at A.I. hugged Reyes after the murder. But, Reyes told Wright, if they only knew. Wright testified that Reyes admitted to the murders saying the victims were short on a pound of marijuana.
According to Wright, Reyes said there w as a scuffle in a basement with Rowe. He also said a woman had come to the door. Rowe was taken to a car. At one point, they stopped for gas on Maryland Avenue. Someone w as in the trunk of the car and started to make noise. Reyes turned up the radio. From the gas station, they went to Canby Park and later went to Rockford Park where the victims were left off.
Based on the evidence described above, the juries in both trials found Cabrera and Reyes guilty beyond a reasonable doubt of the intentional murders of Rowe and Saunders. The evidence described above does not establish who the actual shooter or shooters were. Each jury was given a "Chance" accomplice liability instruction and instructions on lesser degrees of homicide.
Chance v. State, 685 A.2d 351 (Del.Supr. 1996).
ACCOMPLICE LIABILITY INSTRUCTION
If you find that the defendant did not himself shoot and kill Brandon Saunders and/or Vaughn Rowe, you should then go on to consider the following instruction on accomplice liability. The defendant, Luis Cabrera, and his codefendant, Luis Reyes, have both been charged with murder in the first degree regarding the deaths of Brandon Saunders and Vaughn Rowe. I instruct you that a person charged with committing one or more offenses may be convicted either as a principal for acts he committed himself or as an accomplice to another person guilty of committing those offenses. The principles of accomplice liability apply to each of the offenses which the defendant and h is codefendant are accused of committing: murder in the first degree (2 counts) and possession of a firearm during the commission of a felony (2 counts). The pertinent statute of the Delaware Criminal Code applicable to accomplice liability is as follows:
A person is guilty of an offense committed by another person w hen, intending to promote or facilitate the commission of the offense, he 1) solicits, requests, commands or otherwise attempts to aid the other person in planning or committing the crime, or 2) he aids, counsels, or agrees, or attempts to aid the other person in planning or committing it.
A person may be found guilty as an accomplice of an offense committed by another person if you are satisfied beyond a reason able doubt that the following elements are proven: (1) the person alleged to be the accomplice acted intentionally; that is, he intended to promote or facilitate the commission of the crime charged; and
(a) the person alleged to be the accomplice solicited, requested, commanded or otherwise attempted to aid the other person in planning or committing the crime; or
(b) the person alleged to be the accomplice aided, counseled or agreed or attempted to aid the other person in planning or committing the offense.
In other words, for defendant Luis Cabrera to be liable as an accomplice, you must be unanimously satisfied beyond a reasonable doubt that he, in some way, either participated in the planning and/or commission of the crime or actively encouraged Luis Reyes to commit the crime either prior to or at the scene of the crime, intending to pro mote or facilitate the commission of the offense. Therefore, a person can be equally guilty with the person who actually committed the crime if he, as an accomplice: (1) solicits, requests, commands or otherwise attempts to cause the other person to commit the crime; or (2) aids, counsels, or agrees or attempts to aid the other person in planning or committing the crime prior to or during the actual commission of the crime; the location of such soliciting, requesting, commanding, aiding, counseling, agreeing or attempting to aid need not be at or near the scene of the crime.
If you determine, however, after considering the evidence, that defendant Luis Cabrera was merely present at or near the scene of the crime, without aiding, counseling, agreeing or attempting to solicit or a id the other person in planning or committing the crime, it is your duty to find the defendant not guilty. Further, this statute does not confer accomplice liability if the participation by a defendant is only after the crime is actually committed.
Should you return a verdict of guilty of murder in the first degree or possession of a firearm during the commission of a felony, your verdict need not be unanimous as to a specific theory of liability as a principal or as an accomplice so long as you are all in general agreement as to the defendant's guilt.
Finally, there is another principle of the law of accomplice liability that is applicable to this case which I will now explain to you. Under the Delaware Criminal Code, the act of killing another person, a homicide, is a crime that is divided into degrees of mental states. The degrees of homicide are: murder first degree, murder second degree, manslaughter and criminally negligent homicide.
If you unanimously find beyond a reasonable doubt that there was a principal-accomplice relationship between Luis Cabrera and Luis Reyes with respect to the killing of Brandon Saunders and/or Vaughn Rowe, and that Luis Cabrera was an accomplice either to the killing of Brandon Saunders and/or Vaughn Rowe, you must also unanimously decide what degree of homicide is compatible with Luis Cabrera's own culpable mental state, irrespective of the culpable mental state of the principal, Luis Reyes. In other words, even though you may find that Luis Cabrera was an accomplice in the criminal acts that resulted in the death of Brandon Saunders and/or Vaughn Rowe, he, as an accomplice, is not necessarily guilty of the same degree of homicide as the principal. Therefore, it is necessary to now define the mental state required for each degree of homicide so that you may determine Luis Cabrera's degree of culpability as an accomplice.
Cabrera Jury Instructions (February 8, 2001) at 7-9. A similar instruction was given to the Reyes jury.
THE SENTENCING DECISION Statutory Aggravating Factor — As to Both Defendants
Each jury found each defendant guilty of the intentional murder of two individuals. Each jury in each penalty hearing found that a statutory aggravating circumstance had been established beyond a reasonable doubt. That circumstance, of course, was that each defendant's conduct resulted in the deaths of two persons. The jury in each trial was, of course, instructed in accordance with Delaware law that its findings of guilt established that statutory circumstance as a matter of law for the penalty phase.
Steckel v. State, 711 A.2d 5, 13 (Del.Supr. 1998).
The Court has a function independent of the jury to determine whether that statutory aggravating circumstance is found to exist. The Court finds that as to each defendant, the statutory aggravating circumstance of causing the death of two or more persons exists beyond a reasonable doubt. The Court reaches that finding as to each defendant based upon a separate evaluation of the evidence introduced at trial against that particular defendant. It is necessary to state this since, while there were many similarities in the evidence in each trial, there were some significant differences.
Non-Statutory Aggravating Factors — As to Both Defendants Circumstances of the Murders of Rowe and Saunders
As to each defendant, the State listed first the nature and circumstances of the commission of the murders. Its notice in the Reyes case about this factor was more detailed than its notice in Cabrera. The Court does not view that difference to be significant as to most of the details about the murders. But, there are some significant additional details introduced into evidence in the Reyes trial.
Supra at 3, 5.
Supra at 5-6.
First, the similarities. There is no need to review the evidence in detail. Both Rowe and Saunders were shot in the back of the head. To say that these shootings were anything less than a cold blooded execution would be an injustice. These murders do not reflect a hair trigger on a gun discharging during a robbery. They reflect, instead, a premeditated intent to kill. There is nothing to show accident, negligence, recklessness or anything short of a deliberate and planned murder of two people.
The common evidence in both trials also revealed that severe, potentially life threatening injuries were inflicted on Rowe before his execution. Both defendants are linked to this savage beating. Also, the evidence in both trials was that Cabrera was angrily asking the person in the basement, who was, of course, Rowe, about fooling around with a girlfriend. In Cabrera's trial, this was the only real evidence of a possible explanation of, at least, Rowe's murder.
There were no gun shots heard at 610 West 20th Street. Noises of a beating or altercation were heard. There is no evidence Rowe was shot at 610. Nor were he and Saunders murdered where they were found in Rockford Park with the crude efforts to bury them. There is no evidence Saunders was in the basement when Rowe was. All of this shows the premeditated nature of the killings.
As to Cabrera, this non-statutory aggravating factor has been established. The victims' murders were without any justification or explanation and carried out in a premeditated manner.
Reyes' trial was more enlightening but also more chilling about the circumstances of the double murders. The two were murdered because Cabrera was shorted on a drug deal. Rowe was invited to the defendants' residence on January 20th and it appears the intent to injure and kill was in place before his arrival. Even if formed once he was there, he was first badly beaten suffering belt-like injuries to his face, chest and abdomen. The torso injuries could have been life threatening except he was murdered before he died from them.
Rowe was so injured by these blows he was likely not ambulatory and was put in the trunk of Cabrera's car. Ashwell's missing shovel suggests one of the defendants took it knowing it would be used to bury the bodies. Rowe was put in the trunk of Cabrera's car. The defendants picked up Saunders and took the two to what they believed was a secluded area for execution. While defenseless on the ground, most likely face down, they were shot in the back of the head. Rowe was shot twice, once fatally. There is evidence that Cabrera and Reyes argued over who was going to do the actual killing. The bodies were removed from this location and taken to Rockford Park and dumped.
This more detailed evidence describing the reason for the killings, a bad drug deal and their execution style, shown at the Reyes trial provide a more troubling view of the nature and circumstances of the killings. They further establish the existence of the more detailed listing of circumstances contained in the State's notice in the Reyes case.
In sum, there is overwhelming evidence upon which the Court finds the existence of this non-statutory aggravating circumstance as to both defendants.
Fundador Otero Murder
This is another non-statutory aggravating circumstance included in the State's penalty notice letters for both defendants.
Otero was murdered in his apartment on January 5, 1995. He was days short of his 66th birthday when murdered. Cabrera was convicted in May 1998 of first degree murder, burglary first degree and conspiracy first degree in connection with that murder. His sentences for those convictions, introduced during the penalty hearing, were life for the murder conviction, five years for the conspiracy conviction and four years for the burglary conviction. Reyes did not go to trial for Otero's murder. Instead he pled guilty to murder in the second degree, burglary in the first degree and conspiracy in the second degree.
Beyond these convictions, the State presented evidence in both penalty hearings of the details of that murder. Most graphically, it was done through the reading of Reyes' testimony in the 1998 trial of Cabrera and through his recorded statement to the New Jersey police.
That testimony stated with how Reyes met Cabrera, through their work at ISS, and continued with a description of their close personal relationship. According to Reyes, several days beforehand, Cabrera came to him asking for his help in killing Otero. Cabrera said his father had a problem with Otero and Cabrera wanted to kill Otero to prevent Mr. Cabrera, Sr. from going to jail. At first, Reyes said he refused but Cabrera persisted and he finally agreed. Reyes said he finally relented because he loved Cabrera and Cabrera had done so much for him. Reyes was 17 at the time all this happened.
This reasoning is discussed under mitigating circumstances later, infra at 38-45.
Apparently in the evening after a wrestling match, the two went to Otero's apartment where, after a brief conversation at the door, Reyes indicated Cabrera kicked in the door. He ordered Otero to sit on a couch. Reyes described Otero as an old man in his 60's or 70's. Otero and Cabrera had a discussion about Cabrera's father. Then Cabrera directed Reyes to grab Otero, which he did by holding him in "double arm bar, chicken wing" from behind. Otero ended up on top of Reyes. Otero struggled. Reyes also wrapped his leg around Otero's leg so he could not move.
Cabrera then went into Otero's kitchen, wet a rag and returned to the couch where the other two were. He put it over Otero's face and kept pressing it there. Otero continued to struggle as Reyes held him. Since this did not result in Otero's death, Cabrera got a plastic bag and wrapped it around Otero's head. The cloth was still over Otero's face. Otero struggled and tried to breathe. The bag had handles which Cabrera tied around Otero's neck and which Cabrera kept pulling. And then Reyes testified:
Q. Then what happened?
A. Kept holding him, you know. [Cabrera] was squeezing him and Otero was making noises, try to move, but he, you know, and then [Cabrera] took the bag off after a while because I think he had took the bag off and put something in Otero's mouth and put it back on and wrapped it around him again so he wouldn't make no noises. Then he kept pressing it tight until Otero couldn't struggle anymore.
Q. Did you do anything in addition to holding him with his arms and keeping his legs immobile?
A. No, I did not.
Q. And at some point [Otero] stopped moving?
A. Yes.
Q. He also stopped breathing?
A. Yes.
Q. Do you know how long that took?
A. The whole from the time we got there or?
Q. Yeah.
A. From the time we got there, I'd say about 45 to an hour, 45 minutes to an hour, an hour and a-half, around there.
Q. And you told the police that you thought that it took like 45 minutes for [Otero] to die; do you believe it was that long?
A. No.
Q. How long do you think it was?
A. For him to die?
Q. Yeah.
A. I'd say between 10 and 15 and 20 minutes.
Q. Now once he was — oh, once he was dead, what did the two of you do?
A. Then [Cabrera] took the bag off of him, and I released him and laid him on the couch, and [Cabrera] went back to the room, said he was going to get his coat and his keys, and, you know, dress him so we could carry him out to the truck.
State's Exhibit 3, Cabrera Penalty Hearing at 88-89.
They took him, Otero's truck and Cabrera's truck to New Jersey. They abandoned Otero's truck and continued on in Cabrera's truck. Somewhere off the New Jersey Turnpike, the two defendants' exited. Cabrera drove a short distance, eventually pulling in behind a commercial building. There, according to Reyes, Cabrera removed Otero's body from the truck, placed it in a dumpster, poured gasoline on it and set it on fire. In both penalty hearings, Reyes' statement to the Burlington County investigators was introduced. In it, Reyes says Cabrera told him, before going to Otero's apartment, the plan was to strangle him and then burn the body. This last testimony was not presented, however, in Cabrera's penalty hearing.
The identification of Otero's body, through dental records, was made in March 1997. That is when Reyes was arrested and interviewed by the New Jersey authorities. It was during that interview that he mentioned the beating in the basement.
Supra at 16-17.
Without question, the murder of a frail old man one year prior to the murders of Rowe and Saunders constitutes a significant non-statutory aggravating factor. That killing, too, was not the result of a sudden confrontation or a hair trigger pulled by a nervous robber. Nor was it over in an instant. It took many minutes for Cabrera and Reyes to hold down, smother and strangle Otero and to cause his death. All because of a mortgage scam. Otero's picture was used on a State identification with Mr. Cabrera, Sr.'s 302 North Franklin Street address and may have been used to obtain a loan. Otero lived very near the Wilmington Police station, some distance from 302 North Franklin Street. In short, the reason for killing Otero was trivial. This non-statutory aggravating circumstance weighs about as heavily as such circumstance can get.
At this juncture, it is appropriate to separate the analysis of non-statutory aggravating factors into two, one part for each defendant.
Cabrera Non-Statutory Aggravating Circumstances
The testimony of a witness, Wilson Serrano, was read to Cabrera's jury. In it he described how Cabrera and Reyes killed Otero by smothering him. Serrano said Cabrera enjoyed the killing; it gave him a rush. Serrano said Cabrera related he had used paper towels to kill the victim. This technique rang a bell with Serrano because previously he, Cabrera and others watched a video entitled "Five Deadly Venoms." In it a prisoner is smothered with wet paper towels.
Cabrera has other convictions on his record in addition to Otero's murder. None are as significant in comparison. They include convictions for:
1. Forgery second degree, a felony, and attempted theft, a misdemeanor, in 1990.
2. Criminal impersonation, a misdemeanor, in 1993.
3. Two counts of assault third degree, a misdemeanor, in October 1996.
The date of the offenses was not made a matter of record. Therefore, though the guilty pleas were after Rowe and Saunders were murdered, there is no way for the jury or this Court to assess the temporal relationship, if any, between these convictions in October 1996 and the January 1996 murders.
Victim Impact
Rowe and Saunders were seniors at A.I. duPont High School when they were murdered. Saunders was 18, Rowe 19. Saunders' mother described her son's murder as having a "devastating" and "destructive" impact on her family. It has caused her to question herself about everything. As a result, she keeps a much tighter rein on Saunders' younger brother, who was 2 1/2 at the time of the murders.Rowe's mother testified that she has attempted suicide twice since his murder. Prior to it, she said, she was the strongest in the family, but is now more reclusive. Her ability to love and trust has been harmed leaving her with a "darkness" in her heart.
This was the victim impact testimony in Cabrera's trial. Unlike Reyes, he was not in school with the two victims. He knew both victims, however, before murdering them. Since they were, therefore, not strangers, the role of victim impact evidence has more weight than in many other cases.
Cabrera Mitigating Evidence
Mr. Cabrera, Sr. testified that his son was born on November 7, 1969. He described him as respectful and a child who was no trouble in school. He received good grades, graduating from Wilmington High School. He obeyed curfew restrictions as a teenager.
Following high school, Cabrera went into the Army. After that, he spent 1 1/2 years in college. He had jobs from the age of 15, including being a manager of a store in the Christiana Mall. Mr. Cabrera, Sr. said his son had a good personality and that he was well liked. He brought to Mr. Cabrera, Sr.'s house Reyes and Serrano and others who did not have a place to sleep. The neighbors loved him, he said. His son took care of him when he was sick. If Cabrera is executed, Mr. Cabrera, Sr. said he will die, too.
Mrs. Cabrera and the defendant met in 1992 or 1993 and they married in 1994. They have a daughter, who was five in February 2001. Cabrera and Mrs. Cabrera separated shortly after their daughter's birth. They are not divorced. He visited his daughter and paid child support. Since his incarceration, Mrs. Cabrera visits him in jail once or twice per month. She takes her daughter with her because they have a good relationship. Cabrera inquires about her schooling, church and extracurricular activities. Their daughter asks why he cannot come home. Cabrera always showed her respect, Mrs. Cabrera testified. She loves him despite the murders. When she finished testifying, she left the courtroom screaming — all could hear it — and crying.
Friends of Cabrera also testified. They described his loving and caring nature. One, Rhonda Frazier, testified how when she had housing troubles, he took in her and her baby. He treated them like family. She recited a time when her sister, a student at Cheney State, contemplated withdrawing, but Cabrera, even while in prison, told her not to withdraw. She heeded his advice. Frazier also described reading Cabrera's Bible noting portions he had highlighted. Luz Diaz, described Cabrera as an uncle to her. She knew him before he was incarcerated and has written and visited him since his incarceration.
As part of his mitigating evidence, Cabrera presented Ryno Jackson, a forensic psychologist. He worked with a firm which in May 1998, through a Dr. Edward Dougherty, evaluated Cabrera. Dr. Dougherty evaluated him for the penalty hearing following the guilty verdict in the Otero murder trial. Dr. Jackson reviewed that report but administered tests independent of Dr. Dougherty's. He described his tests as parallel, however. Dr. Jackson described what he meant by an evaluation:
A. When we are talking about an evaluation, we are talking about taking a global look at the individual, which would encompass certain emotional, neurological, look at growth factors and the rest of it. And what we do then is to put together a battery of tests in addition to the clinical interview that would give us some information in all of those areas.
Cabrera Penalty Transcript (February 14, 2001) at 6.
That evaluation showed, he said, "essentially nothing" but added Cabrera: (1) was functioning in the average range of cognitive abilities; (2) is quite strong psychologically; (3) has a strong denial mechanism; (4) had an extremely low probability for drug or alcohol involvement; (5) had no psychiatric difficulties; and (6) is a "closely guarded personality with careful encapsulated aggressive tendencies. He appears to have the need for power while experiencing feelings of helplessness."
Id. at 7-8.
Dr. Jackson had other observations. He noted Cabrera was more talkative when speaking about his daughter and her upbringing. He also noted no prison w rite-ups in about four years of incarceration and Cabrera's easy relationship with Department of Correction staff. He opined that Cabrera was not now, nor would he be, a threat to himself or others in prison. Cross-examination revealed Dr. Jackson's opinion about not being a threat in prison did not factor into a significant degree that Cabrera had been convicted of killing three people. He opined, however, that Cabrera could function within the prison setting.
During other cross-examination, Dr. Jackson explained his earlier "essentially nothing" finding to mean nothing of a pathological nature. He told the jury that it was a "fair statement" that his testimony gave him no insight or inkling why Cabrera committed three murders. He found no evidence of organic brain damage and diagnosed no personality disorders.
Dr. Jackson described Cabrera's father as less than an ideal role model; apparently his means of income were not all appropriate. Cross-examination revealed Dr. Jackson had examined and testified about other defendants on other capital cases. Unlike many of those cases, there was an absence of a drug and/or alcohol problem and, unlike a few of those whom he had examined, no organic brain damage. Cabrera has no intellectual impairments. The absence of these factors from Cabrera made his case "so unusual."
Id. at 30.
By stipulation, the defense introduced copies of Cabrera's disciplinary record while in jail since his arrest on April 8, 1997 for the Otero murder. There were seven infractions, write-ups, noted. The infractions started September 7, 1997 but the last was February 15, 2000. They were for such things as disobeying an order, disrespect, bantering, bartering, possession of non-dangerous contraband, fighting (with another inmate), possession of razor blades (marked as a major offense) but the action was dismissed after "guilty pleas," and possession of contraband. After disciplinary hearings, some discipline was imposed.
The Court finds none of these infractions to be serious. Discipline was imposed, for most. Cabrera, in most, admitted wrongdoing. Two incidents are a bit troubling, the one where he had extra razor blades in his cell (even though no real disciplinary action was taken) and fighting with an inmate. While troubling, it was in 1999 and nothing serious happened. It does raise, however, a bit of a question about Dr. Jackson's testimony that Cabrera gets along with other inmates.
The Court finds that Cabrera proved the following mitigating circumstances:
1. He is a loving and caring father to his young daughter. His death would have a very negative impact on her.
2. Even though separated, Cabrera's death by execution would have a negative effect on his wife.
3. Cabrera cares for certain people. He has encouraged people to finish school and has provided housing for people in need.
4. Cabrera's execution would be devastating on his father, with whom he appears close and for whom he has cared.
5. In the four years of his incarceration, starting with the arrest for the Otero murder, he has not been a major disciplinary problem from the prospective of serious incidents.
6. Cabrera was relatively young, about 27, when Rowe and Saunders were murdered.
7. He is educated, a high school graduate with 1 1/2 years of college.
8. He maintained jobs since the age of 15 and even was a store manager.
Cabrera spoke in allocution. He extended condolences to the Rowe and Saunders families. He respected that they may not want to hear that from him. Cabrera next spoke of why he wanted this jury to decide whether he was guilty or not. Because he thought he had a good jury, he wanted to keep it. He was surprised, however, by its guilty verdict. That was so because, as he related to the jury, he was innocent. He discussed various items of evidence and why they did not point to his guilt.
None of the evidence he addressed, however, concerned the testimony of Ashwell. Since he was free to discuss the evidence with the jury in allocution, as he did, the protestations of innocence ring mighty hollow. They square with Dr. Jackson's finding that Cabrera has a strong denial mechanism.
Reyes Non-Statutory Aggravating Circumstances
This Court has already reviewed several non-statutory aggravating circumstances which were common to Reyes and Cabrera and which both juries heard. In addition to them, the State presented evidence unique to Reyes at his penalty hearing.
Supra at 24-30.
Victim Impact
The victim impact evidence in the Reyes penalty hearing was very similar to that the Cabrera jury heard. It has a more significant role in the Reyes case. That is because Reyes and the two victims were in the same A.I. senior class and knew one another. Reyes even participated in the senior class' grieving process.
Supra at 31.
Other Conduct
Tiny Carpenter described how, when she was 15, Reyes grabbed a pillow case full of Halloween candy from her. She was pulled down and bruised. She did not view it as a "big deal." A friend's father contacted the police. The incident was in 1991. Reyes wrote her an apology and performed some community service. The investigating officer said Reyes admitted to the incident and even asked Carpenter, after dragging her, if she were okay.
The State established these two non-statutory aggravating factors. The first, the snatching of the Halloween candy, however, is not given much weight. It was four years before the Otero murder when Reyes was 13. It was not part of a pattern at that time. The victim impact evidence, however, has more weight in Reyes' situation because he knew Rowe and Saunders, they were high school seniors and, as seniors, he had to have appreciated the consequences of planning to and carry out their murder.
In addition to these circumstances, the State introduced Reyes' disciplinary records from the Department of Correction. He had been in jail since March 23, 1997. There are a number of infractions; many in 1999. One of then was for fighting with an inmate.
There are a number of infractions for breaking rules like non-dangerous contraband in his cell, being in another inmate's cell, but also a number for failure to obey orders. Some of his infractions were in 2001, including, albeit not serious, in June 2001 for being off limits and disobeying an order. He received a written reprimand.
Reyes' prison disciplinary record is troubling. It has a pattern of not obeying orders and violations of a number of different rules. None, however, are serious, but they raise a question, particularly since they occurred as recently as four months before his trial, of some inability to adjust to prison life. On the other hand, there is only one fight, with an inmate, and that was in 1999.
The State has proven a non-statutory aggravating circumstance of adjustment difficulties to prison life. As of the date of his June 2001 infraction, Reyes had been in jail for over four years.
Reyes Mitigating Circumstances Age
Reyes was 17 w hen he helped Cabrera murder Otero in 1995. He was several weeks short of his 19th birthday (February 7, 1996) when Rowe and Saunders were murdered. Such a young age is a mitigating circumstance. In isolation, his age would be viewed as a significant mitigating circumstance.
It cannot be viewed, however, in isolation. To his detriment, while still only a teenager, he still chose to murder two people a little over a year after murdering Otero. There are two other aspects, on the other hand, relevant to Reyes' age which were brought out in the penalty hearing. One was the significant dysfunctional circumstances of his upbringing, especially lack of a father's support in any respect. The other was that circumstance coupled with his age that made him vulnerable to an older male figure. That figure was Cabrera.
Dysfunctional Upbringing
Reyes presented several witnesses to establish this mitigating circumstance. The Court finds that he did. This circumstance has various subsets. One witness was Caroline Burry who has a Ph.D. in social work and 21 years' experience in the field. That experience includes testifying for the State in over 100 child abuse cases and around 15 times for the defense in capital cases.
Burry testified that social workers use the past as a predictor. That includes doing a family assessment which, in turn, means examining the family history and environment. From that history, one predicts how things that happen to a person as a child have a negative or positive effect on that person as an adult.
In this case, Burry interviewed Reyes, his mother, grandmother, maternal aunts, and his girlfriend, Santos. She interviewed his daughter by Santos who is now five years old. She read the presentence report generated for his sentencing in the Otero case. She did not discuss with Reyes the facts, at counsel's request, of the Rowe and Saunders murders.
Her investigation showed Reyes has a number of relatives with criminal records. Many of those same relatives also have substance abuse problems. Most, if not all, of these same relatives were not raised by their biological parents. Reyes lost contact with his biological father, she said, when he was three. He had lived with a variety of father figures and Cabrera became one of those father figures for him.
Burry referred to a United States Department of Justice study entitled, "Predictors of Youth Violence," Hawkins, Henenbolil, Farrington, Brewer, Catalano, Harachi and Cotham, Juvenile Justice Bulletin (April 2000) Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice. That study breaks down risk factors into several categories. She listed all those identified in that study and indicated which risk factors Reyes had:
1. Individual: hyperactivity; concentration problems; restlessness, risk taking; aggressiveness; early initiation of violent behavior; involvement in other forms of antisocial behavior and belief and attitudes favorable to deviant or antisocial behavior.
2. Family: parent criminality (parent criminality when children are 14 or older more than doubles the risk for subsequent violence). Burry testified this is a significant risk factor. Besides this factor, Reyes had all the others listed in this category. They are: child maltreatment; poor family management practices (these practices at age 14 more than double the risk of subsequent violence); parent-child separation.
3. School: academic failure; low bonding to school; truancy; and dropping out. Burry noted Reyes failed first grade and several courses in high school.
4. Peer-related: delinquent peers (ties with antisocial peers is the strongest predictor of subsequent violence for 12-14 year olds).
5. Community and Neighborhood Factors: availability of drugs and firearms; neighborhood adults involved in crime; exposure to violence and social prejudice. She noted that there were firearms and drugs in the house when Reyes was growing up.
6. Risk Factors: Associated with Teenage Mother: much less likely to grow up in a home with a father; lower emotional support; lower cognitive stimulation; less likely to be rated as "excellent student" by teachers; more likely to repeat a grade; sons of teen mothers more likely to end up in prison; at age 24, 30 percent of such sons were neither in school nor working; high poverty rate.
Burry cited what are known as "Protective Factors." These, she said, balance the risk factors. Of those he had two attending pre-school and school. Reyes, she said, had few of those protective factors and was at a high risk for becoming and became a violent young person. His family history explains what he is. Cabrera became his father figure. Burry testified that Reyes had a young daughter and that losing a parent is devastating. This is particularly so when a parent is executed; there is no support system for such children.
Defense Penalty Exhibit 9.
All of Reyes' risk factors and predictors are historical in nature. That is they are set and cannot be changed. Those, therefore, predicting his behavior, as evidenced by three murders, remain. There is no question Reyes had a dysfunctional upbringing. He had a teenage mother who basically abandoned him to his grandmother. Three of the family members, who had criminal records, substance abuse problems, and were raised without fathers, were her children.
The grandmother, now 71, testified at trial. She said two of her sons were not good role models. One at that time was in jail. She also said Reyes met his father one time which was when he was six. She described Reyes' moving around and numerous other family problems. She said she would miss him.
Dr. Harris Finkelstein, a psychologist, examined Reyes in February 2001 and prepared a report. He specializes in psychological evaluation and treatment of young people, including teenagers and their families. In connection with this case, he reviewed the Otero conviction presentence report and Family Court records. He met with Reyes for over four hours.
Defense Penalty Exhibit 11.
Dr. Finkelstein found two significant traits in Reyes which are in conflict. One is that he is proud, capable and interactive. The other is he has a sense of inadequacy and is unsure if he will ever be successful. In that regard, Dr. Finkelstein noted, Reyes needed and needs frequent reaffirmation and support. The person providing those needs turned out to be Cabrera who also wanted negative things. In his report, Dr. Finkelstein made these observations:
[Reyes] is a 24-year old young man who has had considerable difficulty in managing interpersonal relationships. He maintains a narcissistic-like feature of his personality that fuels a need for frequent reaffirmation and support. A sense of inadequacy and confusion alternates with a tendency toward over-valuation of his personal worth, creating a sense of inner conflict about his self-image. The absence of frequent reaffirmation may lead to experiences of frustration and negativism which can evolve into anti-social acts. He is highly vulnerable to the loss of control despite exerting significant energy into activities designed to create a sense control [sic] and order over his life. He relies strongly upon external sources of control and may be capable of functioning for extended periods only in environments that are highly structured and routine. He maintains a tenuous sense of connection to others and may have difficulty taking the perspective of others. [Reyes] may perceive aggression as a natural manifestation of relationships and may be inclined toward aggressive responses at times. Though he invests considerable effort in processing his perceptions, he is prone to slippage in his use of logic and faulty judgment which may contribute to the misperception of the intent of others.
Defense Penalty Exhibit 11 at 5.
He said Reyes lacked "full criteria" for any personality disorders. He noted that Reyes' absence of support from close relationships may create "a vulnerability to the mismanagement of stressful situations." He also noted in his report:
Id.
[Reyes] is generally capable of perceiving clear and unambiguous situations in a manner similar to that of most people. However, as situations grow increasingly more undefined and complex, his perceptions tend to deviate from the consensus position of most others. This perceptual inaccuracy may contribute to slippage in his process of logical though and/or faulty judgment on occasion.
Id. at 4.
Dr. Finkelstein said Reyes needed predictable structure and environment. Reyes, he testified, could generally deal well in that environment. In such a setting, he would be less likely to be impulsive or aggressive.
Unlike Burry's conversations with Reyes, Dr. Finkelstein discussed with him some issues concerning the three murders. He implied to the doctor that Otero's murder was impulsive, but such a characterization, the doctor said, was inconsistent with his statements to the police and testimony at Cabrera's trial. He denied involvement in the Rowe and Saunders' murders and said he would be found not guilty.
Reyes' schooling was covered. He had won some awards for his wrestling and was proud of this. Copies of his grades were placed in evidence. He did poorly his senior year, but prior years had a smattering of As and Bs.
Defendant's Exhibit 13.
More of Reyes' personality and character came through the testimony of his girlfriend, Santos, and her child by another man, Raymond Sanchez. Santos described their relationship, how Reyes provided financial and emotional support to his daughter and Sanchez. Reyes, she said, played with Sanchez and helped him with his school work. Sanchez calls Reyes, "Daddy." She takes Sanchez and their daughter to see Reyes in jail. His conversation with the children about discipline helps and he has had a positive effect on them. She would be crushed, and the kids hurt, by Reyes' execution. Sanchez described how he and Reyes played together. If he gets in trouble, Reyes sets him straight. He would not feel good if he could never talk to Reyes again.
The mitigating circumstances established by Reyes are:
1. He was 18 when Rowe and Saunders were murdered.
2. He came from a significantly dysfunctional family background which had virtually no moral compass and left him vulnerable to a negative father figure like Cabrera.
3. Cabrera's influence over him was significant and lead to his involvement in three murders.
4. Reyes has a reasonably good chance of remaining sufficiently adjusted to prison life.
5. Reyes loves his daughter, is supportive of her and is supportive of Sanchez. His execution would be a loss for them and for his girlfriend, Santos.
Reyes spoke in allocution. He expressed remorse to the families, but he denied any involvement in Rowe and Saunders' murders. He would never kill anyone over a pound of marijuana. He spoke of the father-like influence Cabrera had over him. This included good things like going to ball games together. On the negative side was his "choice," which he said was bad, to help kill Otero at Cabrera's behest. Finally, he spoke of his love for Santos, his daughter and Sanchez. He wanted to help with their upbringing even if only through visits.
THE WEIGHING PROCESS
Independent of the jury, the Court is required to weigh all the aggravating and mitigating circumstances. That process is not one of counting the number of one type versus the number of another type. That process is a qualitative one.
State v. Cohen, 604 A.2d 846, 849 (Del.Supr. 1992).
Cabrera
The Court has already found that beyond a reasonable doubt a statutory aggravating circumstance exists. It has to be weighed along with the other circumstances, both non-statutory aggravating and mitigating. Further, as the jury was instructed, its eleven-to-one recommendation for a death sentence has to be given great weight.
Cabrera has now killed three people. Two were killed a few days over a year after the first. He is, of course, serving a sentence for that first degree murder. He was arrested for it and convicted of it after Rowe and Saunders were murdered. The Court notes this to reflect that this situation is less troubling than if he had already been convicted of murder and then murdered again. But, it is only slightly less serious. The fact remains that all three murders were intentional and reflected an opportunity to contemplate before carrying them out and all displayed planning.
The Court adds that it has not found that the statutory aggravating circumstance of premeditation and substantial planning is present. 11 Del. C. § 4209(e)(1)u. The State did not present that statutory circumstance, the jury was not asked to and did not address it. But, the non-statutory aggravating circumstance of the nature of all three killings was presented to the jury and the Court in the penalty hearings for both defendants.
Rowe and Saunders were executed. Each was shot in cold blood in the back of the head. The motive in Cabrera's trial and hearing was not as fully developed as in Reyes' trial and hearing. Whatever the reason, there was no justification. Cabrera was 26 when Rowe and Saunders were slain. He had been employed since he was 15 but, had shown no significant effort to advance himself. According to his father, he was a store manager in a mall, but this did not seem to instill any significant value system. Further, while he has genuine affection for his daughter, that bright spot does not compare well to his record of murders. He killed Rowe and Saunders after she was born.
Cabrera's father, it appears, may not have been the best role model for him, but that does not explain why he chose to kill three people. In no way, of course, does it justify the killings. There are no significant mental problems to explain, let alone any way justify, Cabrera's thirst for killing. He was the older of the two defendants. Even in his trial, his relationship with Reyes was described as like father and son. It was Cabrera who solicited Reyes to help murder Otero. It was not shown in Cabrera's trial who initiated the thinking to kill Rowe and Saunders. Under the circumstances shown in Cabrera's trial, because of his age and the relationship with Reyes, there is a likelihood that he may have been the execution plan's initiator.
In sum, the mitigating circumstances the Court earlier found are insignificant when weighed against all of the aggravating circumstances, both the statutory one and the non-statutory ones. Cabrera's lust to kill without justification is chilling.
The Court, therefore, finds a preponderance of the evidence, after weighing all relevant evidence in aggravation and mitigation which bears upon the particular circumstances of the details of the commission of the offense and the character and propensities of Cabrera, that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist. Accordingly, the death sentence is the appropriate sentence.
Reyes
Unlike the jury's eleven-to-one death recommendation in Cabrera's case, Reyes' jury's death recommendation was nine-to-three. The Court will accord great weight to this recommendation.
The jury's vote most likely reflects the presence of several mitigating circumstances not found in Cabrera's case. One of those circumstances, known in both trials, was the age spread between the two defendants. W hat was also know in both trials was the father-son description placed on the defendants' relationship.
In Reyes' trial, the meaning of that relationship was explained in greater detail. There is no question Reyes had a deep emotional bond to Cabrera who provided needed, but otherwise absent, emotional support. That detailed explanation coupled with Reyes' age of 18 when he murdered Rowe and Saunders is the most likely reason for the difference in the two votes.
The Court finds Reyes' age and his bond with Cabrera to be significant mitigating circumstances. His desire to be a father to his daughter, born after the Rowe and Saunders' murders is a recognition of a desire to prevent her from suffering the same emotional vacuum he did which Cabrera filled.
As mitigating circumstances, however, they go only so far. Reyes was 17 when he chose to help Cabrera carry out his plans to murder Otero. He said he made a bad choice then. His choice to participate was not made after minutes or even hours of thought, but after several days. It is unknown how long in advance of January 20th the plan was formed to kill Rowe and Saunders. But, there was a year between the Otero murder and the murder of Rowe and Saunders. This is more than adequate time to have reflected on his choice of committing the ultimate crime in 1995 before doing it again. He chose to help Cabrera in 1995, he has said, because of his love for him and not wanting to disappoint him. That explanation may work once. It disappears after a year. It becomes particularly unpersuasive since these victims were known to him. Nor were these murders to save from prison his "father's" father (Cabrera, Sr.). There was no such emotional tie in this case. It was to kill two people over a pound of marijuana; two people known to Reyes from school and not strangers and two people in their teenage years with life ahead of them.
Reyes expressed remorse, or more accurately, an apology, for the pain Rowe and Saunders' families were enduring. The sincerity of this is debatable. He told Dr. Finkelstein he would be found innocent and denied involvement. He even said Cabrera beat Rowe and he had nothing to do with that. All of this flies in the face of what he told Santos, the New Jersey police, Wright, what Sterling overheard and the 610 tenants saw.
Reyes dysfunctional background is now set and immutable. It has manifested itself in three murders. That dysfunctional background may explain his emotional tie to Cabrera and offer a more readily understood reason for helping Cabrera kill Otero. The suggestion is the two of them had become emotional partners. That partnership changed after January 1995. They became, instead, partners in murder.
The Court finds by a preponderance of the evidence, after weighing all relevant evidence in aggravation and mitigation which bears upon the particular circumstances of the details of the commission of the offense and character and propensities of Reyes, that the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist. The appropriate punishment for Reyes is death.
IT IS SO ORDERED.