Court Below: Superior Court of the State of Delaware in and for Sussex County Cr. ID No. 0911008358
The opinion of the court was delivered by: Steele , Chief Justice:
Submitted: August 8, 2012
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. REVERSED and REMANDED. Bernard J.
Leslie D. Small appeals his convictions of two counts of First Degree Murder, three counts of Possession of a Deadly Weapon During the Commission of a Felony, First Degree Robbery, and Second Degree Burglary. The trial judge sentenced Small to death. Small makes two arguments on appeal. First, Small argues that the judge violated his Fifth Amendment right to remain silent by allowing testimony that Small refused to discuss the crime during his mental evaluation. Second, Small asserts that the prosecutor's characterization of mitigating circumstances as "excuses" jeopardized the fairness and integrity of the penalty hearing. Because we find the prosecutor's repeated characterization of mitigating evidence as excuses to be plain error, we reverse the imposition of a death sentence and remand for a new penalty hearing.*fn1
I. FACTUAL AND PROCEDURAL HISTORY
June McCarson lived in the Donovan-Smith Trailer Park in Lewes, Delaware. Because she was 78 years old, she called the Comfort Ride cab company to drive her as she ran her errands. Comfort Ride dispatched Leslie Small to pick up McCarson at her mobile home.
After picking McCarson up at 12:25 p.m., Small drove to Wilmington Trust so McCarson could cash $500 of her Social Security check and deposit the rest.
As McCarson counted the cash and put it in her purse, Small noticed that she had several hundred-dollar bills. Next, Small drove McCarson to Bayside Beauty and then Happy Harry's. McCarson bought several bags of groceries and headed home.
At 3:35 p.m. Small pulled into McCarson's driveway and helped carry her bags into the mobile home. Before McCarson could take off her coat, Small pushed her to the floor and straddled her from behind, breaking her back in the process. He attempted to strangle McCarson with a towel but she struggled and yelled for him to leave her alone. Small then found scissors with three inch blades in a kitchen drawer and stabbed McCarson over twenty times in her back, neck, face, and hands.
Small collected the scissors, towel, and purse before leaving the scene. He inadvertently dropped the scissors near the driveway. After driving away, he disposed of the towel, the purse, and his bloody clothes, and later purchased cocaine with the money from McCarson's purse.
The next morning, two women from Meals on Wheels discovered June McCarson on the floor of her mobile home. Police determined that McCarson had used Comfort Ride and that Small was her driver. A neighbor reported seeing a cab in McCarson's driveway and a tall man inside the residence. After interviewing Small's wife, police concluded that Small killed McCarson and arrested him in Milford, Delaware. Small initially declined to speak but later confessed to the murder.
On April 5, 2011, a jury convicted Leslie Small on two counts of First Degree Murder, three counts of Possession of a Deadly Weapon During the Commission of a Felony, First Degree Robbery, and Second Degree Burglary.
During the penalty phase, the State alleged four statutory aggravating circumstances: (1) Small was previously convicted of a felony, Robbery in the First Degree, and the underlying facts of the conviction involved the use or threat of force or violence upon another person; (2) Small committed the murder for pecuniary gain; (3) the victim was more than 62 years old; and (4) Small committed the murder while engaged in the commission of First Degree Robbery. The jury unanimously found, beyond a reasonable doubt, the existence of all statutory aggravators.
During the penalty phase opening statements, defense counsel introduced the concept of "excuse" by telling the jury that "[t]he evidence that we will be presenting is not an excuse for what happened. There is no excuse for what happened."*fn2 During his allocution, Small also mentioned the concept of "excuse" when he said, "HIV, I'm not using that for an excuse because there is no excuse for what I've done, now or in the past."*fn3 Nevertheless, during the State's closing and rebuttal, the prosecutor compared Small's mitigating circumstances to "excuses" 8 times and to "shifting the blame" 3 times.
The jury voted 12 to 0 in favor of the death penalty for the First Degree Intentional Murder and Felony Murder Counts. The trial judge found that all of the statutory aggravating factors had been established beyond a reasonable doubt.*fn4
The judge also found, by a preponderance of the evidence, that the
aggravating factors outweighed the mitigating factors.*fn5
Therefore, the judge imposed a sentence of death by lethal
We review errors which were not raised at the trial level for plain error. Under the Wainwright v. State plain error standard:
[T]he error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process. Furthermore, the doctrine of plain error is limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice.*fn7
Defense counsel did not object to either of the issues raised on appeal. Therefore, we ...