ISAIAH W. MCCOY, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee
Submitted December 10, 2014
Case Closed February 5, 2015.
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Court Below: Superior Court of the State of Delaware in and for Kent County.
Erek L. Barron, Esquire, (argued), Whiteford, Taylor & Preston, LLP, Bethesda, Maryland; and Herbert W. Mondros, Esquire, Margolis Edelstein, Wilmington, Delaware, Attorneys for Defendant-Below, Appellant.
John R. Williams, Esquire, Department of Justice, Dover, Delaware, Attorney for Plaintiff-Below, Appellee.
Before STRINE, Chief Justice, HOLLAND, RIDGELY, VALIHURA, Justices, and BOUCHARD, Chancellor, constituting the Court en Banc.
This is a direct appeal from the convictions and death sentences of Isaiah McCoy (" McCoy" ). Seven counts were submitted for the jury to decide: (1) First Degree Murder, intentionally causing the death of another person under 11 Del. C. § 636; (2) First Degree Murder, recklessly causing the death of another person while engaged in the commission of or the attempt to commit Robbery First Degree under 11 Del C. § 636; (3) Possession of a Firearm During the Commission of a Felony (Murder First Degree) under 11 Del. C. § 1447(a) ; (4) First Degree Robbery under 11 Del. C. § 832(a); (5) Possession of a Firearm During Commission of a Felony (Robbery First Degree) under 11 Del. C. § 1447(a); (6) Second Degree Conspiracy under 11 Del. C. § 512; and (7) Motor Vehicle Theft under 11 Del. C. § 841(a). On June 29, 2012, McCoy was found guilty as to all but Count 7.
Following McCoy's two convictions for First Degree Murder, the trial court held a capital murder penalty hearing on July 3-10, 2012. On July 11, the jury found the following aggravating circumstances: the defendant was previously convicted of a felony involving the use of, or threat of, force or violence upon another person; the
murder was committed while engaged in the commission of a robbery; and the murder was committed while engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit Robbery in the First Degree. The finding of these aggravating circumstances made McCoy eligible for the death penalty under 11 Del. C. § 4209. The jury found by a 10-2 vote, on both Counts 1 and 2, that the aggravating circumstances outweighed the mitigating circumstances by a preponderance of the evidence. The jury recommended the death penalty.
On October 11, the trial judge found that " the aggravating circumstances found to exist outweigh the mitigating circumstances found to exist" and sentenced McCoy to death on Counts 1 and 2; 20 years incarceration (with the first 5 years mandatory) on Counts 3, 4, and 5; and 1 year incarceration on Count 6.
Issues on Appeal
In this appeal, McCoy alleges five grounds on which his convictions should be reversed. First, he argues that the Superior Court violated McCoy's right to a fair trial by seating a juror with significant potential bias. Second, he contends that the State's prosecutorial misconduct violated McCoy's due process rights. Third, he submits that the evidence was insufficient to sustain McCoy's convictions. Fourth, he argues that the Superior Court erroneously failed to instruct the jury on accomplice testimony before one of the State's witnesses testified, as required by Brooks v. State. Fifth, he alleges Delaware's capital punishment process violates the Due Process Clause and the Sixth Amendment to the United States Constitution under Alleyne v. United States.
Under 11 Del. C. § 4209(g)(2)a., this Court must also automatically review every death sentence to determine whether " the death penalty was either arbitrarily or capriciously imposed or recommended, or disproportionate to the penalty recommended or imposed in similar cases . . . ."  We must also consider " [w]hether the evidence supports the jury's . . . finding of a statutory aggravating circumstance . . ." 
We have concluded that the Superior Court committed reversible error when it improperly denied McCoy's right to exercise a peremptory challenge to strike a potential juror. In addition, reversible error occurred when the prosecutor improperly vouched for the credibility of a key witness for the State. We also address the pervasive unprofessional conduct of the prosecutor that permeated these proceedings and compromised McCoy's right of self-representation. Finally, we examine the other issues raised by McCoy, since there will be a new trial, and conclude that those issues are without merit.
State's Version of Events
On the evening of May 4, 2010, Janies Munford (" Munford" ) was fatally shot once in the right side of his torso. Munford's girlfriend, Rekeisha Williams (" Williams" ), testified at trial that she had arranged a drug deal the previous day between Munford and McCoy. McCoy was supposed to purchase Munford's 200 ecstasy pills in exchange for $750 and two grams of crack cocaine. Munford and McCoy had never met, but Williams had known McCoy for at least several months. Williams and McCoy agreed to meet in the parking lot
outside the Rodney Village Bowling Alley in Dover, Delaware. Dashaun White (" White" ), who is McCoy's nephew and lived in the same house as McCoy at the time, testified that McCoy invited him along on the pretext that McCoy would buy him clothing. White and Williams testified that they did not know each other before that night.
According to both White and Williams, Munford was sitting in the driver's seat and Williams was sitting in the front passenger's seat of Munford's Chevrolet Suburban when McCoy and White arrived. McCoy and White approached the rear passenger seat. McCoy entered the car, but instructed White to stay outside. After speaking with Munford for a few minutes, McCoy pulled out a revolver. At that point, Williams asked McCoy if she could leave, which he permitted.
There was an inconsistency between White and Williams at trial as to whether Williams asked if she could leave the vehicle, or if Munford requested that on her behalf. White testified that Munford had asked McCoy if Williams could leave. Williams testified that she had asked, and that her previous statements to police to the contrary were not truthful. Around the same time Williams left, McCoy instructed White to go to the front passenger's side of the vehicle. According to White's testimony, Munford then attempted to leave the vehicle, at which point McCoy shot him. White testified that he believed the bullet struck Munford in the back, consistent with McCoy's position in the back seat of the car.
Munford fell out of the car, but managed to run to the front of the bowling alley as McCoy continued to shoot. None of those bullets struck Munford. The medical examiner determined that Munford was only struck once, in the right side of his torso, from what appeared to be a downward trajectory. Nonetheless, the shot was fatal, and Munford died at the hospital soon after. After Munford died, Detective Donald Christie found seven $100 bills in Munford's pocket.
After Munford fled the vehicle, according to White's testimony, McCoy instructed White to drive the Suburban to an abandoned house nearby, where they wiped down the vehicle with White's shirt. They apparently did not find Williams' driver's license, which the police later found in the front side pocket of the vehicle. McCoy and White then walked to the home they shared with McCoy's mother and several others. White testified that McCoy burned the clothing they wore during the shooting. The police later recovered partially burnt clothing from McCoy's backyard.
White and Williams both testified that after the shooting occurred, McCoy sent his sister, Darya White, to accompany Williams back to McCoy's home. Williams claimed to the police at one point that she had been kidnapped by McCoy, but later admitted that she went to McCoy's home with Darya willingly. Multiple witnesses corroborated Williams' testimony that she spent the next two or three days at White and McCoy's home, including McCoy's mother, sister, and White.
Williams testified that she felt threatened by McCoy, and did not eat or use the bathroom while she was a guest at his home. But McCoy's mother and Darya both testified that Williams ate, asked for cigarettes, and watched television with the family. Williams also continued to send
text messages to McCoy after she left his house.
The gun used in the murder was never recovered, but Loretta Williams (no relation to Rekeisha) reported her .38 Taurus Revolver stolen shortly after the shooting. Her son, Talan Bishop (" Bishop" ), testified at trial that he took the gun and several bullets from his mother, intending to protect a friend, Abdul Bumbrey. Bishop gave the gun to McCoy on May 2 because he needed someone to hold it while he accompanied Bumbrey's girlfriend, who did not want the gun in the presence of her child. Bishop testified that he believed McCoy would return the gun, but that McCoy told him that he had thrown it into a bush because he saw police in the area.
It was not clear from Bishop's testimony when McCoy indicated he had disposed of the gun. Bishop initially lied to the police about what he had done with the gun. He testified at trial that he lied to give McCoy time to retrieve the gun because he believed McCoy was still planning to return it to him. Although the State's firearms expert, Carl Rone, could not say with certainty which specific gun was used to shoot Munford, he concluded that the .38 caliber bullet that killed Munford could have been fired from either a .38 or .357 firearm, including Loretta Williams' missing Taurus.
There is no dispute that after the shooting, McCoy retained possession of Munford's ecstasy pills. White testified that the pills were stored in two plastic sandwich bags in a gray lunch bag. Two other witnesses corroborated White's testimony regarding the plastic bags: McCoy's friend, Da'Janiel Smith, and McCoy's then-girlfriend Agealena Sauls. Williams also corroborated White's testimony regarding the gray lunch bag.
McCoy's Version of Events
McCoy testified in his own defense that he had not been at the bowling alley at all on the night of May 4. He claims that he was at home getting ready for the evening when the shooting took place, although no witnesses corroborated his account. His theory at trial was that White and Williams had a previous sexual relationship, and had conspired for White to kill Munford and frame McCoy for the murder.
McCoy asserted at trial that on the day of the shooting, he conducted a non-violent transaction with Williams in which he paid for and received Munford's ecstasy pills. McCoy testified that Williams told him she was going to meet with White later that night, but then contacted him because she was unable to reach White and he had not appeared as promised. McCoy then sent Darya to pick up Williams because Williams was nervous about the heavy presence of police officers outside.
McCoy testified that White confessed to him that he had killed Munford. McCoy's sister, Darya White, also testified that White admitted to her that he had " bagged a body," but that he did not elaborate beyond that during their conversation.
There was little physical or forensic evidence to support either the prosecution or defense's theory. DNA swabs taken from Munford's vehicle did not match Munford, McCoy or White. Fingerprints lifted from the vehicle also did not match McCoy's or White's. The police never found the gun used in the shooting.
The bowling alley's motion sensitive surveillance video captured two men approaching a vehicle, one of whom walks to the front of the vehicle. The driver's side door opens and Munford exits. It appears that a struggle takes place before Munford
begins running. The quality of the picture was not sufficient for the police to recognize any individual, but White identified himself as the man in the front of the vehicle, although he claimed he did not fight with Munford. The video does not capture what happens to the other man who had approached the vehicle, nor does it show Williams at any point. There are a number of gaps in the video, apparently because there had been no motion to trigger the camera.
Several independent witnesses testified for both the prosecution and defense. Yves Hall testified that he heard a gunshot as he drove past the bowling alley, then saw two men fighting in front of the Suburban. He could not confirm if there were others in the vehicle. Mary Skocik testified that she was walking near the bowling alley when she heard " four loud cracks" that she thought were fireworks. Abraham Patz, who lives across the street from the bowling alley, also testified to hearing gunshots, and seeing a man " stumbling through the parking lot, and a large white SUV taking off at a high rate of speed out of that parking lot." He also could not determine whether there were passengers in the SUV from his vantage point.
Ella Hickman, who had been walking in the area at the time of the shooting, testified that she saw two individuals in a white SUV in the parking lot. She then saw two men approaching the vehicle, but she was " positive" that McCoy was not one of them. She also testified that the taller of the two men approaching the vehicle was wearing a black baseball cap with red letters, which she identified as the hat in evidence that had been taken from McCoy's basement by the police. She did not know McCoy before the shooting.
Johnnie Shockley, who identified himself as Munford's best friend, testified that Munford frequently sold ecstasy, and that he typically carried a .22 handgun to drug deals. The police found forty .22 caliber bullets in the car, but no handgun.
There was also testimony at trial about McCoy's phone records, which show that Williams called him multiple times immediately after the shooting, despite her claim to the police that did not contact him after leaving his house. Williams also testified that she called Munford after running away from the vehicle on the night of the shooting, but there was no evidence of this call on her phone records.
McCoy was indicted on July 6, 2010, for ten offenses, including six for which he was convicted: First Degree Murder; First Degree Murder During a First Degree Robbery; Possession of a Firearm During the Commission of a First Degree Murder; First Degree Robbery; Possession of a Firearm During the Commission of a First Degree Robbery; and Second Degree Conspiracy. The State entered a nolle prosequi for additional charges of Kidnapping, First Degree Conspiracy, and Theft of a Motor Vehicle. The State also severed a charge of Possession of a Firearm by a Person Prohibited.
Jury selection in McCoy's trial began on January 9, 2012, but was continued on January 23 until May 14. On the second day of jury selection in May, McCoy applied to proceed pro se, which the Superior Court allowed, with McCoy's former attorneys operating as standby counsel. Jury selection was completed on May 24.
The trial took place from May 29 to June 26. McCoy made a motion for acquittal at the end of the State's case. The Superior Court reserved judgment. At the close of McCoy's defense on June 25, the Superior Court denied McCoy's motion, ruling that " any rational trier of fact could find the essential elements of the
crimes above beyond a reasonable doubt." After the trial ended, the jury deliberated for two days, returning a unanimous guilty verdict on six counts on June 29.
The penalty phase of the trial took place from July 3-10, 2012, during which McCoy refused to argue a mitigation case on his own behalf. McCoy made a motion for a new trial under Rule 33 on July 5, which the Superior Court denied. McCoy also renewed his motion for acquittal on July 9, which the Superior Court again denied.
On July 11, the jury unanimously found two of the statutory aggravating factors required to impose capital punishment under Delaware law: McCoy had previously been convicted of a violent felony, and he had committed the murder while engaged in the commission of a robbery. By a 10-2 vote, the jury found that the aggravating circumstances outweighed any mitigating circumstances, and recommended that the death sentence be imposed.
The Superior Court also weighed the evidence, including a mitigation notebook prepared by McCoy that was not shown to the jury. Ultimately, the Superior Court agreed with the jury, and sentenced McCoy to death on October 11, 2012, for the two counts of First Degree Murder; 20 years of incarceration for the possession and robbery charges; and 1 year of incarceration for the conspiracy charge.
For his part in the crime, White accepted a plea bargain from the State. In exchange for testifying against McCoy, he pled guilty to reduced charges, including Manslaughter, for which he received an 18 year prison sentence. Williams also accepted a plea offer. She pled guilty to Second Degree Conspiracy for her role in setting up the drug deal and to hindering the prosecution for lying to the police afterward, but received only supervised probation in exchange for her testimony at trial.
Reverse Batson Error
McCoy's lead argument is that the trial judge erred by sua sponte refusing to accept one of his peremptory challenges. McCoy argues that the trial judge violated his right to a fair trial by seating a juror with significant potential bias over his objection. In response, the State argues that McCoy's peremptory challenge was made in a racially discriminatory manner, contrary to Batson v. Kentucky, and that the trial judge's refusal to accept McCoy's peremptory challenge was appropriately premised on a reverse Batson violation. In Georgia v. McCollum, the United States Supreme Court extended its holding in Batson to peremptory challenges made by criminal defendants. A State's Batson objection to the defendant's exercise of a peremptory challenge is known as a reverse Batson claim.
The record reflects that when McCoy exercised a peremptory challenge to remove his eighth Caucasian juror from the panel, the prosecution made a reverse Batson challenge, asking that McCoy provide some justification for his peremptory strike. McCoy responded by stating that the juror's " son is Caucasian, he's a police officer." The trial judge then performed a Batson analysis, considered McCoy's past peremptory challenges and ultimately concluded that there was no reverse Batson violation. Nevertheless, the trial judge
issued a warning to McCoy, telling him that he " must show that [his] challenges are non-purposeful in terms of simply seeking the removal of a prospective juror on the basis of racial classification . . . . "
Thereafter, McCoy used his next four peremptory challenges to remove Caucasian prospective jurors without objection from the State and without questions from the trial judge. When McCoy used his thirteenth peremptory challenge to strike a Caucasian male, however, the State noted that McCoy had used all thirteen peremptory strikes on Caucasian prospective jurors. The trial judge conducted a second complete Batson analysis and again found that a reverse Batson violation did not occur. McCoy utilized his fourteenth peremptory challenge to remove a Caucasian female whose two brothers are police officers. The State did not object and the trial judge did not ask for any explanation.
McCoy used his fifteenth peremptory challenge to remove Daniel Hanson (" Hanson" ), a Caucasian male. Hanson's wife had retired five years earlier as a counselor at the Smyrna Department of Corrections, where McCoy was an inmate. The State did not object. However, the trial judge, sua sponte, questioned McCoy's peremptory challenge and stated: " Mr. McCoy, I'm going to need some justification because I can't think of a reason."
McCoy responded with two justifications for his challenge. First, he explained that Hanson had paused when answering whether he could find McCoy not guilty. Second, he stated:
[Hanson's] wife is a counselor at DCC. I'm familiar with how inmates treat these counselors at times, some of the issues that went down. As he said, about five years ago, that's around the time when the lady was raped, the counselor lady, was raped in Smyrna. So I'm pretty sure he probably heard about that. His wife probably heard about that. So the counselors get an outlook that they have and their spouses, it may trickle onto their spouses things that they may have heard and for that it doesn't sit right. . . . I know on a day-to-day basis being back at the prison how people treat these counselors and very disrespectful way, throwing things on them like feces and things of that nature. So I don't know if he's ever told her -- if she's ever told him anything about that but that just gives me a lot of pause in allowing the juror to sit on a trial while I have peremptory strikes to use, Your Honor.
The trial judge rejected McCoy's explanations, and found that that there was " no legitimate reason why [McCoy] would exclude the juror."
The trial judge did not expressly refer to Batson when he refused to accept McCoy's peremptory challenge nor did he articulate a rationale for his ruling other than there was " no legitimate reason why [McCoy] would exclude the juror." If the ruling was based upon the finding of a reverse Batson violation, a full Batson analysis should have been conducted by the trial judge. Because we found an incomplete record to review what appeared to be the trial judge's attempted application ...