Submitted: October 16, 2013
Upon Defendant's Amended Motion for Post-Conviction Relief. Denied.
John Williams, Esquire of State of Delaware, Department of Justice, Dover, Delaware; attorney for the State.
Patrick J. Collins, Esquire and Albert J. Roop, V, Esquire of Collins & Roop, Wilmington, Delaware; attorneys for the Defendant.
William L. Witham, Jr. Resident Judge
Before the Court is Petitioner Ambrose Sykes' (hereinafter "Petitioner") extensive Amended Motion for Postconviction Relief. Petitioner raises twenty-three grounds for relief from his 2006 conviction for Murder in the First Degree, Rape in the First Degree, and other related offenses, and relief from this Court's subsequent imposition of the death sentence. The majority of Petitioner's claims for relief are based on allegations of ineffective assistance of counsel against Petitioner's two trial attorneys, Thomas Donovan (hereinafter "Donovan") and Christopher Tease (hereinafter "Tease") (collectively "Trial Counsel"). Petitioner also alleges a host of additional constitutional violations under the U.S. Constitution and Delaware Constitution.
In 2011 and 2012, this Court held an evidentiary hearing on Petitioner's Motion over the course of eleven days. After careful consideration of the parties' filings, the affidavits of Trial Counsel, the trial record, the evidence and testimony presented at the evidentiary hearing, and the post-hearing briefs of both Petitioner and the State, the Court concludes that Petitioner's Amended Motion for Postconviction Relief must be DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
On November 8, 2004 sixty-eight-year-old Virginia Trimnell (hereinafter "Trimnell"), of Dover, failed to arrive as scheduled to visit her daughter in Detroit, Michigan. Trimnell's daughter reported Trimnell as missing. The Dover Police Department sent an officer to Trimnell's apartment to check on her, but the apartment appeared undisturbed and showed no signs of forced entry. Trimnell's car and purse could not be located.
At approximately 3:30 a.m. on November 10, 2004, Sergeant Timothy Mutter (hereinafter "Sergeant Mutter") of the Dover Police Department saw Trimnell's vehicle traveling in downtown Dover. As Sergeant Mutter began to follow the vehicle, the car pulled over across from Trimnell's apartment complex and the driver exited the car. The driver was later identified as Petitioner. Upon seeing Trimnell's name on the vehicle's registration, Sergeant Mutter questioned Petitioner as to Trimnell's whereabouts, at which point Petitioner fled on foot. Sergeant Mutter was unable to apprehend Petitioner that night.
Detective Todd Case (hereinafter "Detective Case") of the Dover Police Department's criminal investigation unit was assigned to investigate Trimnell's disappearance. Detective Case searched the vehicle and found a shovel, gas cans, rubber gloves, a blood-stained pillow, and women's clothing inside the car. In the trunk, police found Trimnell's purse inside a duffel bag, and a large suitcase with Trimnell's name on it. Inside the suit case, police discovered Trimnell's body. Petitioner's fingerprints were later found on the car frame, gas tank, shovel, and one of the gloves.
Assistant Medical Examiner Jennie Vershvovsky (hereinafter "Dr. Vershvovsky") conducted Trimnell's autopsy, and determined that Trimnell died as a result of asphyxiation by strangulation. Semen was found in Trimnell's vagina, and later DNA testing matched the semen to Petitioner. Dr. Vershvovsky found no defensive wounds on Trimnell, nor could Dr. Vershvovsky conclude when sexual intercourse occurred relative to Trimnell's death.
A search of Trimnell's apartment revealed two toothpicks which were matched to Petitioner's DNA. Additionally, a search of Trimnell's computer uncovered that the computer had been used to access pornographic websites on November 7, 2004. Access to the sites was paid for with Trimnell's credit cards. Trimnell's computer had never been used to access pornography prior to November 7. Police later seized several computers and magazines from the mobile home in Hartly where Petitioner resided with Jenny St. Jean (hereinafter "St. Jean"), Petitioner's girlfriend and the mother of his child, A.S. Pornographic images found on those computers were similar to the pornography found on Trimnell's computer. Police also discovered a bag of silver dollars on St. Jean's dresser. Trimnell's daughter later identified those coins as belonging to her mother. A search of Trimnell's phone records revealed that a cell phone registered to Petitioner made three phone calls to Trimnell's home on the morning November 7, 2004. Petitioner was employed at the time as a night custodian at Dover Downs, and did not arrive for his scheduled shift on November 7. On November 8, Petitioner informed his supervisor that he quit, citing problems with his vehicle. Dover Downs surveillance footage captured Petitioner leaving the parking lot in Trimnell's vehicle following his resignation.
Following Petitioner's flight from Sergeant Mutter on November 10, Petitioner was not seen again until November 29, 2004, when police arrested Petitioner in the vicinity of his home. Based on the foregoing, Petitioner was indicted for: one count of Murder in the First Degree (Intentional Murder), one count of Murder in the First Degree (Felony Murder), one count of Rape in the First Degree (Physical Injury), one count of Rape in the First Degree (During Commission of a Felony), one count of Kidnapping in the First Degree, two counts of Burglary in the Second Degree, one count of Theft of a Senior, one count of Unlawful Use of a Credit Card, one count of Unauthorized Access to a Computer System, and one count of Resisting Arrest. The rape charges were ultimately merged into one count of Rape in the First Degree, and the burglary charges were ultimately merged into one count of Burglary in the Second Degree.
Trial and Sentence
Donovan was appointed to represent Petitioner in December of 2004 on the basis of conflict, because the Public Defender's Office already represented St. Jean at the time. In March of 2005, Donovan challenged his appointment on the basis that no actual conflict existed. Donovan requested that Petitioner be referred back to the Public Defender. This Court found merit to Donovan's argument and concluded that no actual conflict existed, but held that Donovan must continue to represent Petitioner based on the appearance of impropriety that may be created by the Public Defender's representation.
Tease joined the defense team in June of 2005. Donovan was lead counsel and primarily responsible for the guilt phase of Petitioner's trial. Tease was responsible for the penalty phase, but also participated in aspects of the guilt phase, including the cross-examination of several witnesses.
Jury selection began on May 30, 2006 and continued until June 7, 2006. The guilt phase of the trial proceeded from June 9, 2006 through June 26, 2006. On June 27, following deliberations, the jury found Petitioner guilty on all counts.
The penalty phase of the trial began on June 29, 2006 and lasted through June 30. Tease presented the testimony of four witnesses: St. Jean (who also testified at the guilt phase of trial as both a State witness and a defense witness); Petitioner's mother, Debora Sykes; and two of Petitioner's sisters, Debray Sykes and Creshenda Jacobs. Petitioner did not allocute. On June 30, 2006, the jury unanimously found beyond a reasonable doubt the existence of a statutory aggravating factor: that Trimnell was murdered while Petitioner was engaged in the commission of, or during his flight after committing, Burglary in the Second Degree. This Court found that two additional statutory aggravating factors–the murder was committed while the defendant was engaged in the commission of, or during his flight after committing, Rape in the First Degree; and the murder was committed while the defendant was engaged in the commission of, or during his flight after committing, Kidnapping in the First Degree–were established beyond a reasonable doubt by virtue of the jury's guilty verdict. The Court also found the following statutory and non-statutory aggravating factors were established by a preponderance of the evidence: the victim was 62 years of age or older; the murder was committed for pecuniary gain; the victim was targeted and the murder was planned in advance; the murder was heartless, depraved, cruel and inhuman; Petitioner terrorized and abused the victim before murdering her; the murder had an adverse impact upon the victim's family; and Petitioner is potentially dangerous in the future.
The Court found that Petitioner failed to establish the mitigating factor of residual doubt, based on the strength of the State's evidence. The Court found the existence of several mitigating factors, including: Petitioner's relationships with A.S., St. Jean, his siblings, and his mother; the negative impact his execution would have on his family; his lack of guidance as a youth; the lack of intervention by his parents during a troubled childhood; and his ability to adjust well in a controlled environment. The jury, in balancing the aggravating and mitigating factors, unanimously recommended the death penalty. This Court agreed with the jury's recommendation and sentenced Petitioner to death by lethal injection.
Trial Counsel also represented Petitioner on appeal. The Delaware Supreme Court initially remanded this case to this Court for further factual findings on whether there was discriminatory intent behind the State's peremptory challenges. This Court concluded that the State had provided credible race-neutral reasons for each of its challenges, and these reasons were not a pretext for racial discrimination. Petitioner raised six claims on direct appeal to the Delaware Supreme Court: (1) the trial judge infringed upon Petitioner's Fifth Amendment right to remain silent when he erroneously instructed the jury during the guilt phase that Petitioner would have the opportunity to allocute following closing arguments; (2) the State improperly exercised its peremptory challenges on the basis of race, violating Batson by denying Petitioner his right to an impartial jury; (3) the trial judge improperly denied Petitioner's motion for a change of venue; (4) the trial judge failed to order a new trial after St. Jean improperly contacted two jurors after the guilt phase of trial but before the penalty phase; (5) death by lethal injection violates the Eighth Amendment's prohibition against cruel and unusual punishment; and (6) Petitioner's death sentence is disproportionately severe compared to other similar cases. The Supreme Court declined to address Petitioner's fifth claim because it was not properly preserved below and was more appropriate for a motion for postconviction relief. The Supreme Court found no error in Petitioner's remaining claims and affirmed Petitioner's sentence.
As to the allocution comment claim, this Court mistakenly informed the jury during the guilt phase of trial that Petitioner would have an opportunity to allocute. This Court immediately recognized its error and called the attorneys to chambers. Trial Counsel moved for a mistrial. This Court denied the motion and instead promptly issued a curative instruction to the jury. The Supreme Court found that the curative instruction "was a meaningful and practical alternative" to a mistrial and rejected this claim.
As to Petitioner's Batson claim, the Supreme Court closely examined this Court's findings on remand, and determined that while Petitioner made a prima facie showing under Batson, this Court's analysis showed there was no constitutional violation. As to the change of venue claim, the Supreme Court determined that the pre-trial publicity surrounding Petitioner's case was insufficient for this Court to presume prejudice, and Petitioner had failed to demonstrate actual prejudice justifying a change of venue. As to Petitioner's death penalty claim, the Supreme Court found Petitioner's sentence to be proportional to similar cases.
Finally, as to the improper juror contact claim, Petitioner argued that prejudice should have been presumed on the basis of St. Jean's contact with Juror No. 6 and Juror No. 9 during a little league game. This Court interviewed both jurors about the incident, and allowed Juror No. 6 to remain on the jury, but dismissed Juror No. 9 based on her fear of St. Jean following the incident. The Supreme Court concluded that Petitioner failed to establish identifiable prejudice or egregious circumstances warranting a new penalty hearing.
Petitioner next filed a petition for a writ of certiorari with the United States Supreme Court in June of 2008. The petition was denied.
Motion for Postconviction Relief
On October 24, 2008, Petitioner, represented by new counsel, timely filed his original Motion for Postconviction Relief as well as Motion for Stay of Execution, which this Court granted on December 15, 2008. On October 19, 2009, Petitioner filed his Amended Motion for Postconviction Relief in which Petitioner raises twenty-three separate claims for relief. The State subsequently filed its response, to which Petitioner filed a reply. Donovan and Tease each filed sworn affidavits responding to the allegations in the Amended Motion.
Beginning October 10, 2011 and concluding November 7, 2012, the Court held an evidentiary hearing over the course of eleven days. Over 40 exhibits were admitted into evidence, and 21 witnesses, including Trial Counsel, testified during the hearing. An additional three witnesses who did not testify were deposed. Both parties submitted briefs in support of their arguments following the hearing.
On April 12, 2013, Petitioner filed a Motion to Amend to add two additional claims to his Amended Motion for Postconviction Relief. By Order dated July 12, 2013, this Court denied Petitioner's Motion to Amend on the grounds that the amendments would be futile.
Given the breadth of Petitioner's claims, this Court shall briefly summarize the testimony presented at the evidentiary hearing before conducting its legal analysis.
a. Thomas Donovan
Donovan testified over the course of two days. Petitioner's questioning of Donovan attempted to portray Donovan as having a single-minded focus on escaping his appointment as Petitioner's attorney, and as a result did not begin investigating Petitioner's case as early as he should have. Donovan acknowledged that approximately sixteen months elapsed between Petitioner's proof positive hearing in June of 2005 and Donovan's next face-to-face meeting with Petitioner in April of 2006. Petitioner had previously mailed Donovan a letter that month expressing Petitioner's "utter alarm" that Donovan had not visited him at prison.
Donovan testified that he chose Tease as his co-counsel based on Donovan's mistaken belief that Tease had considerable experience in capital cases. Donovan also failed to hire a forensic expert to rebut Dr. Vershvovsky's testimony, which Donovan acknowledged to be a mistake on his part because, at the time, Donovan believed he or Tease could effectively cross-examine Dr. Vershvovsky without the aid of a forensic expert. Much of Petitioner's questioning also focused on Donovan's supposed failures to either obtain certain evidence, object to comments made by the State during closing arguments, or to call specific witnesses.
On cross-examination, Donovan described the defense's trial strategy as twofold: (1) to implicate St. Jean in Trimnell's murder, on the theory that Petitioner had a consensual sexual relationship with Trimnell which St. Jean found out about; and (2) to show there was a lack of evidence implicating Petitioner. Donovan acknowledged there were difficulties in pursuing both strategies. Donovan testified that as of December of 2004, Petitioner initially denied knowing Trimnell, and once Petitioner told Trial Counsel in June of 2005 that he had a sexual relationship with Trimnell, there was not enough information to prove the relationship existed. Further, Petitioner specifically told Trial Counsel not to attempt to implicate St. Jean, and it was not until halfway through the trial that Petitioner changed his mind, leaving Donovan little time to prepare the strategy. Trial Counsel were also concerned that if they pursued St. Jean too aggressively, St. Jean could provide damaging testimony against Petitioner. Still, Donovan chose to not prepare St. Jean for her testimony for Petitioner, in order to potentially implicate her in Trimnell's death. Finally, Donovan testified that the strength of the State's evidence against Petitioner made his lack of evidence strategy difficult to pursue.
Donovan acknowledged that there were issues which he failed to raise on appeal, including the argument that Juror No. 9 was improperly allowed to remain on the jury despite being an alleged acquaintance of St. Jean. Donovan claimed he only raised arguments on appeal which he believed were most likely to result in a reversal of conviction.
b. Christopher Tease
Tease testified over the course of three separate days. Tease was primarily responsible for the penalty phase of trial, but did not retain a mitigation specialist, nor did he obtain any records pertaining to Petitioner such as school records, medical records or family records. Tease did not admit that this was error, but conceded that there was no tactical or strategic reason for doing so. Tease justified his decision to not hire a mitigation specialist on the basis that before representing Petitioner, Tease had worked on another capital case with an experienced attorney, and had not retained a mitigation specialist in that case. Tease also testified that he was working on three separate murder trials at the same time when he was working on Petitioner's case, which hampered his ability to fully prepare Petitioner's case. Additionally, at this point in Tease's career, Tease did not have much experience in murder trials.
At the outset of the case, Tease had his law clerk interview several of Petitioner's family members as preparation for the penalty phase of trial. Tease claimed he also conducted interviews, and stated that he interviewed Petitioner on numerous occasions. Tease believed early on in the case that, due to the strength of the State's evidence, Petitioner "had no shot" in the guilt phase. Thus, Tease testified that he began prepping several of the mitigation witnesses during the guilt phase of trial. Tease's strategy for the penalty phase was to present the testimony of Petitioner's family to focus on Petitioner's then-ten-year-old son, and the need for the son to have a father figure because Petitioner's own father, Jesse Sykes (hereinafter "Jesse) was a negative influence on Petitioner's upbringing. However, Petitioner was "adamant" that he wanted neither A.S. nor Jesse to testify at his penalty hearing. Petitioner was also adamant in not wanting to allocute. Petitioner's questioning at the evidentiary hearing focused on Tease's alleged failure to focus on the physical abuse Jesse inflicted on Petitioner and Petitioner's exposure to Jesse's substance abuse as potential mitigators.
Tease had Petitioner evaluated by a psychologist, Dr. Mandell Much (hereinafter "Dr. Much"). Tease claims that Petitioner was not very cooperative during Dr. Much's evaluation, and that Dr. Much's evaluation would not have been helpful during the penalty phase because Dr. Much's only conclusion was that Petitioner suffered from an anti-social personality disorder, which would not be a helpful mitigating factor. Tease's testimony also referred to a Dr. Dougherty; it appears that this psychologist, whom Tease had worked with on another case, may have initially been retained as well, but ultimately an evaluation was never scheduled with Dr. Dougherty.
Tease cross-examined several key witnesses during the guilt phase, including Dr. Vershvovsky and Detective Case. Tease acknowledged that his cross-examination of Dr. Vershvovsky might have been benefitted if Trial Counsel had retained their own medical expert or pathologist. Tease defended his decision to not challenge Detective Case's lay testimony that drag marks on the floor of the basement in Trimnell's apartment complex matched the suitcase in which Trimnell's body was discovered. Tease stated that the drag marks suggested that a second person may have been involved in moving the suitcase, and thus Detective Case's testimony was helpful to the defense.
Finally, Tease indicated that communication between himself and Donovan was not as effective as it could have been. Tease also disagreed with several of Donovan's tactical decisions, especially Donovan's decision to not prepare St. Jean for her testimony during the guilt phase. Tease acknowledged that not preparing St. Jean was a tactical decision by Donovan, in order to potentially "blind-side" her and implicate her in Trimnell's death, but Tease did not believe the strategy paid off. Tease did prepare St. Jean for the penalty phase. Tease also formulated his own strategy during the guilt phase which he presented during the penalty phase: a "residual doubt" theory that Trimnell accidentally suffocated to death once she was bound, and that there was not enough evidence that she was intentionally strangled to death.
c. other members of the defense team
Tease's law clerk during the early stages of Petitioner's trial also testified at the evidentiary hearing. The law clerk testified that Tease prepared a questionnaire for the law clerk to us e in interviewing Petitioner's family members in preparation for the penalty phase. The law clerk interviewed Petitioner's mother and two of Petitioner's sisters, and prepared a memorandum on his findings. Other than the interviews, the clerk did not perform any other task related to the Sykes' case, and left Tease's employment shortly thereafter.
Gary Marshall (hereinafter "Marshall") was a private investigator hired by Donovan to work on Petitioner's case, which was the first murder case Marshall had worked on. Prior to becoming a private investigator, Marshall had approximately 10 years of experience as a police officer in Virginia and Maryland and had also worked as an internal investigator for Wal-Mart. Marshall interviewed Sykes at prison approximately six weeks before trial, worked closely with Donovan in participating in meetings and interviews with potential witnesses, and reviewed phone records and Trimnell's bank records in an attempt to establish a prior relationship between Petitioner and Trimnell. Marshall also interviewed Trimnell's neighbors and St. Jean's employer to investigate whether there was a link between St. Jean and Trimnell.
Marshall testified that he believed that St. Jean was involved in some way in Trimnell's death, but that petitioner did not want the defense team to explore that route. Marshall also testified that despite his efforts, there was not enough information to establish a pre-existing relationship between Trimnell and Petitioner or St. Jean. Petitioner asked a series of questions in an attempt to show that Marshall cut his investigation short based on a lack of funds, but Marshall adamantly denied these allegations and testified that lack of funds was not an issue that affected the investigation.
Philip Malmstrom (hereinafter "Malmstrom") is the owner of Diamond Computer Incorporated, which provides a variety of computer-related services including data recovery. Donovan hired Malmstrom to retrieve data from Trimnell's and Petitioner's computers and compare the data on both computers. Malmstrom's findings validated the accuracy of the police's findings. Malmstrom testified that Donovan never asked Malmstrom to be a witness in the case. Prior to Petitioner's case, Malmstrom had not done data recovery for any other court case.
d. David Bruner
David Bruner (hereinafter "Bruner") knew St. Jean because Bruner's aunt had employed St. Jean as a home care nurse in late 2003 and early 2004. Bruner had a positive impression of St. Jean, but eventually Bruner noticed unauthorized charges on his aunt's credit card and checking account. Bruner contacted the police, St. Jean ceased working for Bruner's Aunt, and Bruner had no further contact with St. Jean. Bruner was socially acquainted with Donovan and met with Donovan and Marshall to discuss his knowledge of St. Jean. Donovan told Bruner that Bruner would be called as a witness at trial. Despite being subpoenaed and arriving at trial prepared to testify, Bruner was never called as a witness. Bruner was told he would not be called, but never received an explanation as to why.
e. Mike McClements
Floyd "Mike" McClements (hereinafter "McClements") was St. Jean's former fiancé. While Petitioner was incarcerated in Pennsylvania for an unrelated crime, McClements lived with St. Jean and her son at the Hartly mobile home for approximately ten months. McClements was "sure" that while he lived at the mobile home, he used the computer to access pornographic websites. McClements could not recall the specific sites he accessed, but testified he did not view pornography frequently and that he did not pay for the sites he visited. McClements recalled one occasion where his bank account was overdrawn due to access to a paid website; McClements later confronted St. Jean about this, who according to McClements admitted she had used his account to access a pornographic site.
f. Jenny St. Jean
St. Jean testified that in June of 2004 she was laid off from her job as a home care nurse as a result of the incident involving Bruner's aunt. St. Jean subsequently pled guilty to one count of unauthorized use of a credit card and one count of felony theft; she also pled guilty to one count of hindering prosecution in regards to Petitioner's case. St. Jean was also arrested in May of 2004 for offensive touching when St. Jean punched a female coworker whom St. Jean believed was flirting with petitioner.
St. Jean regularly saw a psychiatrist, and testified that she had a long history of having "nasty moods, " which included mood swings, explosive bursts of anger, and impulsive behavior. In July of 2004 St. Jean was hospitalized after taking an overly large amount of Prozac, and was diagnosed with bipolar disorder. St. Jean took medication for her condition, but testified that she did not always remember to take her medication if Petitioner did not remind her. She stopped taking her medication in October of 2005.
St. Jean testified that it was her decision to not bring A.S. to the penalty hearing because the child had been "troubled" ever since Petitioner's arrest, and St. Jean believed it would be inappropriate. St. Jean also claimed that she only had one meeting with Donovan before she testified at the guilt phase of trial, and that she did not confer with Tease at all before the penalty hearing except for a brief conversation in the hallway before St. Jean took the stand.
Perhaps the most important testimony given by St. Jean at the evidentiary hearing concerned a statement St. Jean made to Trial Counsel during the guilt phase. St. Jean testified that during the guilt phase of the trial, St. Jean informed both Donovan and Tease that on the night Petitioner was arrested, nineteen days after his flight from Sergeant Mutter, Petitioner told St. Jean: "[i]f they had been 30 seconds later it would have been on fire." St. Jean testified that "they" meant police, and "it" meant Trimnell's vehicle that Petitioner was driving on November 10, 2004. St. Jean claimed she did not tell police about Petitioner's statement because she was not certain if she remembered the statement correctly. St. Jean never testified about that statement at Petitioner's trial, and the revelation of that statement at the evidentiary hearing was the first time that statement was introduced into the record in this case.
g. Petitioner's family
Petitioner's mother, Debora Sykes (hereinafter "Debora") and Petitioner's sister, Debray Sykes (hereinafter "Debray"), both of whom testified at the penalty hearing, also testified at the evidentiary hearing. Petitioner's other sister who testified at the penalty hearing, Creshenda Jacobs (hereinafter "Jacobs") was deposed, but did not testify. Petitioner's older sister, Richelle Herriott (hereinafter "Herriott"), and Petitioner's younger sister, Jania Watkins (hereinafter "Watkins") also testified at the evidentiary hearing. Neither Herriott nor Watkins testified at the penalty hearing; both stated that they were never contacted by Trial Counsel for an interview or asked to testify in the penalty hearing, but would have agreed to testify if asked.
Debora, Debray and Jacobs all testified that they had little to no contact with Trial Counsel prior to the penalty hearing and were either not prepared by Tease before they testified or received only minimal preparation. Debray claimed she was never interviewed about Petitioner's life growing up or her family's background in general. However, on cross-examination, Debray acknowledged that Trial Counsel may have contacted her towards the beginning of Petitioner's case to interview her, but Debray declined to share any information because she did not know who the attorneys were.
All of these witnesses testified that Petitioner had a loving relationship with A.S. Watkins further testified that she had a loving relationship with Petitioner. The testimony of Debora, Debray, Jacobs, and Herriott was largely consistent and can best be summarized as follows: Petitioner's household when he was a child was one of little to no means and no real parental presence, particularly by Petitioner's father, Jesse. The neighborhood where the family lived was one infested with crime and high drug use. Debora attempted to maintain a strict household and often inflicted corporeal punishment upon her children that at times could be considered harsh; Petitioner would often receive the worst of this punishment. Jesse was verbally and physically abusive to Debora, and made no attempts to conceal his dalliances with other women before ultimately abandoning the marriage. Despite this, Petitioner adored Jesse as a child, and ultimately Debora allowed Petitioner to live with Jesse for approximately two years. While living with Jesse, Petitioner continued to be exposed to his father's sexual relationships and substance abuse, and Petitioner was physically abused by his father.
h. Dawn Hawkins
Dawn Hawkins (hereinafter "Hawkins") testified via video deposition. Hawkins was Jesse Sykes' girlfriend for a number of years, and shared a house with him. Hawkins testified that Jesse was physically abusive towards her, and that Jesse once violently threatened Hawkins with a g un. Petitioner lived in Jesse and Hawkins' home as a teenager for approximately two years. Hawkins' young son and younger sister also lived in the house during that time. Hawkins testified that Jesse physically abused Petitioner on a frequent basis, and Jesse would smoke marijuana in Petitioner's presence. Hawkins stated that Jesse often stole items from his job as a moving van driver, and would force Hawkins and Petitioner to accompany him on his thefts. Hawkins stated that Trial Counsel never contacted her about testifying at the penalty hearing.
i. Tara Whittlesay
Tara Whittlesay (hereinafter "Whittlesay") also testified via video deposition. Whittlesay is Hawkins' younger sister, and as a teenager lived in the house Hawkins shared with Jesse and Petitioner. Whittlesay testified that Petitioner longed for Jesse's affection, despite the physical abuse that Jesse would often inflict upon Petitioner. Whittlesay testified that Jesse frequently smoked marijuana, and was uncertain whether Jesse used other drugs. Whittlesay also testified that Jesse sexually abused her, and that Petitioner was likely aware the sexual abuse was occurring. Whittlesay was never contacted by Trial Counsel to testify at Petitioner's penalty hearing, but stated she would have testified if asked.
j. Yolanda Jones
Yolanda Jones (hereinafter "Jones") was Petitioner's teacher during Petitioner's childhood in Virginia. Jones was a "homebound teacher, " meaning that she would visit children at their homes to teach them if they were unable to attend school. Jones testified that she often taught Petitioner at his home due to a number of chronic illnesses he suffered from as a child. Jones described Petitioner's neighborhood as one with a high poverty and crime rate, and described the Sykes household as being kept in very poor condition. Jones testified that Petitioner struggled as a student, and had to repeat first grade and fifth grade.
k. Douglas Dyer
Douglas Dyer (hereinafter "Dyer") was the facility manager of the Jiffy Lube in Dover in 2004, and had hired Petitioner that year as a lube technician. Dyer described Petitioner as a hard worker and testified that he and Petitioner were friends outside of work. Dyer also testified that Petitioner had a positive relationship with A.S. According to Dyer, Petitioner stopped showing up for work one day without explanation, and Dyer had no further contact with Petitioner since then.
l. Dana Cook
Dana Cook (hereinafter "Cook") is the Deputy Director of the Atlantic Center for Capital Representation in Philadelphia. Cook works as a mitigation specialist and has consulted on other capital cases in conducting mitigation investigations; however, Cook has never testified as a mitigation expert. Cook was retained by Petitioner and reviewed the mitigation evidence Tease compiled in presenting Petitioner's case at the penalty phase, as well as the hearing testimony of Donovan, Tease and other witnesses including Petitioner's family members.
Cook described the typical process of a mitigation investigation, and stressed that it was important for an attorney to develop a relationship with the client at the outset of representation. Cook testified that it is good practice to gather all records pertaining to a client and to interview all members of a client's family as well as third parties such as friends and teachers. Cook stated that there were a number of "red flags" in the evidence and interviews compiled by Trial Counsel that warranted further investigation, though none was conducted. Cook stated that the questionnaires used by his law clerk in early interviews were not comprehensive enough. Cook also found the testimony of Hawkins and Whittlesay significant in portraying an abusive atmosphere in Jesse Sykes' household that should have been presented at the penalty phase. Cook also focused on medical records that showed that Petitioner was hospitalized shortly after his birth due to a lack of oxygen. Cook testified that this should have signaled to Trial Counsel that a medical expert should have been retained to diagnose Petitioner for brain damage, another mitigator. Cook concluded that Trial Counsel's mitigation investigation was not a reasonable one, based on the failure to collect life history records, the limited number of interviews, and lack of further investigation into multiple red flags.
On cross-examination, Cook admitted that while the American Bar Association (hereinafter "ABA") Guidelines recommend retaining a mitigation specialist, there is no actual requirement to hire one. Cook's testimony was inconclusive on whether retaining a mitigation specialist was commonplace at the time of Petitioner's trial. Cook stated that testimony on the physical abuse Petitioner was exposed to in Jesse's home would have supplemented the testimony that was presented at the penalty hearing. However, Cook admitted that there was no direct link between physical abuse and why a person would commit murder.
m. Dr. Carol Armstrong
Dr. Carol Armstrong (hereinafter "Dr. Armstrong") is the director of the neuropsychology lab for the Children's Hospital of Philadelphia and was accepted by the Court as Petitioner's expert in neuropsychology. In July of 2009, Dr. Armstrong evaluated Petitioner over the course of six hours. Dr. Armstrong found that Petitioner's abilities meet the range of someone his age, but Petitioner scored statistically lower on memory tests compared to the rest of his evaluation. Dr. Armstrong concluded that Petitioner suffered from brain damage in the form of associative memory impairment, which would cause Petitioner to be unable to remember new information or learn new things beyond his normal effort. Dr. Armstrong speculated that the physical abuse Petitioner suffered as a child was a possible cause of his memory impairment, but could not conclusively state this. In response to cross-examination, Dr. Armstrong testified this type of brain damage would not compel Petitioner to commit murder.
n. Dr. Jonathan Arden
Dr. Jonathan Arden (hereinafter "Dr. Arden") is a forensic consultant retained by Petitioner and was accepted by the Court as an expert in forensic pathology. Dr. Arden reviewed Dr. Ve rshvovsky's autopsy report of Trimnell, autopsy photographs, and transcripts of Dr. Vershvovsky's trial testimony. Dr. Arden concluded, contrary to remarks made by the State during closing arguments at trial, that Trimnell was bound by stockings after her death, not before; Dr. Arden also found that there was no evidence she had been gagged. Dr. Arden based his conclusions on the absence of marks or injuries indicating the victim had been alive when she was bound and no evidence that a gag was ever used. Dr. Arden's findings were otherwise consistent with Dr. Vershvovsky's report: Dr. Arden found scattered scalpine hemorrhages (but did not believe them to be as severe as Dr. Vershvovsky did), found no defensive wounds on the body just as Vershvovsky did, agreed with Dr. Vershvovsky that the cause of death was asphyxiation by strangulation, and also agreed with Dr. Vershvovsky that it could not be determined whether the sexual activity that occurred before the victim's death was consensual or nonconsensual.
o. Dr. Craig Haney
Dr. Craig Haney (hereinafter "Dr. Haney") is a psychology professor and Director of the Legal Studies Program at the University of California at Santa Cruz. Dr. Haney was retained by Petitioner and accepted by the Court as an expert in the narrow field of the correlation between the circumstances of a crime committed outside of prison and the offender's future dangerousness while in prison. Dr. Haney testified that Petitioner would not be a future danger in prison if sentenced to life imprisonment instead of death. Dr. Haney based his conclusion on his study that the correlation between violent crimes and a criminal's future dangerousness in prison is low to nonexistent. Dr. Haney testified that individuals who commit violent crimes often become acquainted with prison life, no longer represent a danger to the rest of the prison community, and that individuals sentenced to life in prison tend to behave better. He also testified that older inmates are less likely to cause issues. Dr. Haney stressed that Petitioner's past criminal history and chaotic and abusive childhood had no relevance on his future dangerousness in prison. However, Dr. Haney admitted on cross examination that he is personally opposed to the death penalty in all cases.
p. Andrew Lash
Andrew Lash (hereinafter "Lash") is a computer forensic investigator retained by Petitioner. Lash analyzed the hard drives of Trimnell's computer and Petitioner's computers. Lash's review included a comparison of the internet searches conducted on the computers. Lash testified that between April 1, 2004 and November 29, 2004, there was no internet search utilizing pornography-related search terms conducted on Petitioner's computers. However, Lash testified that the same pornographic ...