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Cabrera v. State

Supreme Court of Delaware

July 31, 2017

LUIS G. CABRERA, JR., Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: June 7, 2017

          Revised: August 1, 2017

         Superior Court-Superior Court of the State of Delaware Cr. ID No. 9904019326 (N)

         Upon appeal from the Superior Court: AFFIRMED.

          Thomas C. Grimm, Esquire, Rodger D. Smith II, Esquire (Argued), Stephen J. Kraftschik, Esquire, and Anthony D. Raucci, Esquire, Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware for Defendant Below, Appellant Luis G. Cabrera, Jr.

          Elizabeth R. McFarlan, Esquire and Maria T. Knoll, Esquire (Argued), Department of Justice, Wilmington, Delaware for Plaintiff Below, Appellee State of Delaware.

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, and SEITZ, Justices; Kerr, Judge, [*] constituting the Court en Banc.

          SEITZ, JUSTICE.

         In 2001, a Superior Court jury convicted Luis Cabrera of two counts of First Degree Murder and other offenses for the execution-style killing of Vaughn Rowe and Brandon Sanders in Wilmington's Rockford Park. His co-defendant, Luis Reyes, was tried separately and also found guilty of First Degree Murder.[1] Both defendants were sentenced to death. After Cabrera's conviction and sentence were affirmed on direct appeal, [2] Cabrera filed a motion in November 2004 for postconviction relief claiming in part his trial counsel was ineffective in his defense. The motion took years to resolve due to events outside of counsel's and the Superior Court's control. The Superior Court in 2015 granted the motion in part, ruling that Cabrera's trial counsel was ineffective during the penalty phase of the trial, and vacated Cabrera's death sentence.[3] The Superior Court denied the remainder of Cabrera's postconviction claims. Cabrera appeals from the Superior Court's denial of his motion for postconviction relief. The State voluntarily dismissed its cross-appeal of the Superior Court's vacatur of Cabrera's death sentence in light of our decisions in Rauf v. State[4] and Powell v. State, [5] finding Delaware's death penalty statute unconstitutional and applying our ruling retroactively. We now affirm.[6]

          I.

         In Cabrera's direct appeal we recounted the facts and procedural history underlying Cabrera's conviction.[7] Briefly stated, on January 21, 1996, a pedestrian discovered the bodies of Brandon Saunders and Vaughn Rowe in Rockford Park. The Wilmington Police determined that sometime during the night of January 20 or early hours of January 21, Rowe had been beaten, both victims were shot in the back of the head, dragged into the woods, and covered with a bed sheet.

         The Wilmington Police Department appointed a detective as chief investigator. During the multi-year investigation, his investigative team uncovered compelling evidence that linked Cabrera and Reyes to the victims and the crime. In December 1999, Cabrera and Reyes were indicted and then tried separately for the Rockford Park murders. The State sought the death penalty for both men. Cabrera was already serving a life sentence for the murder of another individual, Fundador Otero.[8]

         A Superior Court jury convicted Cabrera of two counts of First Degree Murder and other offenses. The jury recommended by a vote of 9-3 that Cabrera be sentenced to death. The trial court followed the jury's majority recommendation and imposed a death sentence. Cabrera appealed his conviction and sentence, and while the appeal was pending, filed a motion for a new trial claiming to have discovered new evidence calling into doubt his conviction. The trial court denied the motion. Our Court affirmed the convictions and sentence on direct appeal, including the trial court's denial of Cabrera's new trial motion.[9] Cabrera then filed a motion for postconviction relief under Superior Court Criminal Rule 61. In a lengthy opinion dated June 22, 2015, the Superior Court granted the motion in part by vacating Cabrera's death sentence.[10] The trial court ruled that Cabrera's trial counsel was ineffective during the penalty phase of the trial. The court denied the remainder of the motion. This appeal followed.

         II.

         Cabrera raises ten arguments challenging the Superior Court's denial of his postconviction motion: (1) the Superior Court should have considered Cabrera's reverse Batson claim as a standalone claim, instead of limiting its assertion to an ineffective assistance of counsel claim; and even if Cabrera was limited to an ineffective assistance of counsel claim, prejudice did not have to be shown to demonstrate ineffective assistance of counsel; (2) trial counsel was ineffective for failing to move to suppress the gun taken from Cabrera's father's residence; (3) the State's failure to disclose expert testimony until just before trial rendered the trial fundamentally unfair and violated due process; (4) the State's lead investigator improperly testified about a key piece of evidence rendering it inadmissible, and the State should have granted immunity to the witness who later sought to recant her allegedly perjured testimony; (5) the jury was improperly death qualified; (6) the Allen charge to the jury was unduly coercive and failed to include transitional language; (7) the State's alleged Brady violations affected the fairness of the trial; (8) the jury included members who were not properly qualified, and counsel was ineffective for failing to strike those jurors or move for a mistrial; (9) Cabrera's counsel should have been able to contact the jurors to investigate their bias or competence; and (10) the Superior Court improperly denied Cabrera's request to take discovery on a number of issues raised in the postconviction proceedings.

         We review the Superior Court's denial of postconviction relief for abuse of discretion.[11] Legal and constitutional questions are reviewed de novo.[12] For each of Cabrera's postconviction claims, we will first review the Superior Court's application of the procedural bars of Superior Court Criminal Rule 61.[13] If Cabrera has overcome those procedural hurdles, we will then review the Superior Court's resolution of his claims.

          A.

         During jury selection Cabrera's counsel, with Cabrera's close involvement, [14] exercised three peremptory challenges against members of the venire who were black. After Cabrera and his counsel struck the third black juror, the trial judge raised a concern about the strikes. Neither the State nor Cabrera, however, wanted the trial judge to inquire further into the strikes:

TRIAL COURT: Before the next juror, please, I don't mean to pull the pin out of the hand grenade, but that's at least the third African-American the defense has stricken. Two others were females, as I recall, and one of them was a male too.
THE STATE: Your Honor has correctly recounted the record pertaining to the defense use of strikes. We have no application at this time, however.
DEFENSE COUNSEL: Does the Court wish for me to make a record?
TRIAL COURT: You might want to protect yourself, sure.
DEFENSE COUNSEL: Well, I don't - -
THE STATE: We have no application at this time and, in particular, we are not alleging, nor do we ask the Court to find that a prima facie case of racial animus in the exercise of peremptory challenges has been shown by this record.
TRIAL COURT: Okay. I make no such finding anyway. I'm not making a finding. I'm merely making an observation.[15]

         Cabrera did not attack his peremptory challenges at trial or during his direct appeal. But, Cabrera changed course in his motion for postconviction relief. Even though he played a major role in the strikes, and trial counsel appeared ready at the time to defend the strikes at trial, Cabrera now claims his peremptory challenges violated his constitutional right to a fair trial because they were used to discriminate against jurors based on race-a so-called Batson claim.[16]

         Alternatively, Cabrera reframes the argument as one for ineffective assistance of counsel. According to Cabrera, his counsel was ineffective in his defense because striking the three black jurors from the jury venire violated Batson, thereby creating a structural error in the trial requiring automatic reversal. In support of the claim, his trial counsel testified in a postconviction hearing that race was a factor in exercising Cabrera's peremptory strikes.[17]

         The Superior Court dismissed Cabrera's standalone Batson claim because he failed to demonstrate a miscarriage of justice sufficient to overcome Rule 61's procedural bars.[18] The Superior Court did, however, find Cabrera's counsel ineffective for violating Batson by striking three black jurors from the venire. But, without a showing that he suffered prejudice from his strikes, the court dismissed Cabrera's ineffective assistance of counsel claim.

         As discussed below, we agree with the Superior Court that Cabrera's standalone Batson claim should be dismissed. We also affirm the Superior Court's dismissal of Cabrera's ineffective assistance of counsel claim.

         i.

         In Batson v. Kentucky, the United States Supreme Court held that discrimination based on race is prohibited in the State's selection of jurors.[19] In Georgia v. McCollum, the Supreme Court extended Batson to the defense, ruling that criminal defendants, like prosecutors, were prohibited from engaging in purposeful discrimination on account of race in selecting jurors.[20] Although the parties and the Superior Court have sometimes referred to Cabrera's claim as a reverse Batson violation, that description is inaccurate. A reverse Batson objection is lodged by the State to challenge the defense's improper peremptory strikes.[21]Here, there is no "reverse" in reverse Batson parlance. Cabrera has challenged his own strikes. Thus, the claim is best characterized as an alleged Batson violation by the defense, as recognized in McCollum.

         As unlikely as it might have been, given that Cabrera was involved in exercising the strikes, Cabrera conceivably could have raised the Batson issue at trial or on direct appeal. Because he did not, his claim is procedurally defaulted under Rule 61(i)(3)[22] unless he can meet the fundamental fairness exception in Rule 61(i)(5). To do so, he must state "a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."[23] The circumstances of this case demonstrate otherwise.

         Cabrera exercised his peremptory strikes in what he and his counsel perceived to be in Cabrera's best interest. After the State declined to object, the trial court allowed Cabrera to exercise his peremptory strikes as he saw fit. In this situation, the "steps the court takes at the defendant's behest are not reversible, because they are not error . . . ."[24] He has waived the right to challenge his own strikes.[25]

         Admittedly, the trial judge did express some discomfort with the strikes. That discomfort, however, was an invitation to the State to object if it felt an objection was warranted. The State's objection might have triggered a process for the defense to develop a record of non-discriminatory reasons for the strikes-something Cabrera appeared ready to do at the time.[26] But, once the State decided not to object to the strikes, the trial judge wisely dropped the issue. If the trial court had intervened, Cabrera could have objected on constitutional grounds to the trial court's interference with his right to freely exercise his preemptory challenges, risking a fundamental error early in the trial proceedings that could later upend the trial.[27] Thus, under the circumstances of this case, Cabrera has not demonstrated a miscarriage of justice. His standalone Batson claim is barred by Rule 61(i)(3).

         ii.

         Turning to Cabrera's ineffective assistance of counsel claim, under Strickland v. Washington, [28] counsel is ineffective when (1) trial counsel's representation "fell below an objective standard of reasonableness;" and (2) "there is a reasonable probability that, but for trial counsel's unprofessional errors, the result of the proceeding would have been different."[29] Based on trial counsel's testimony during postconviction relief proceedings, the Superior Court decided that trial counsel committed a Batson violation, but ultimately dismissed the claim because Cabrera could not show he suffered any prejudice from the violation.

         As we have held, Cabrera cannot shift responsibility to his trial counsel for decisions in which he played a major role.[30] And, even if we assume a Batson violation, the Superior Court correctly held that Cabrera was not relieved of showing prejudice under Strickland.

         In Weaver v. Massachusetts, [31] the United States Supreme Court recently addressed the issue presented here-whether a structural error in the trial[32] caused by constitutionally ineffective representation by defense counsel relieved the defendant from showing prejudice under Strickland. In Weaver, trial counsel failed to object to closing of the courtroom during jury selection-a public trial right violation that on direct appeal would ordinarily result in automatic reversal.[33]

         The Supreme Court first contrasted structural claims raised on direct review with those raised much later in postconviction proceedings. On direct review, when an objection has been made in the trial court, and a structural violation occurred, fundamental fairness usually requires automatic reversal after appeal.[34] But, the same structural error raised in postconviction relief proceedings require a weighing of competing interests. According to the Court, when a structural error is raised in postconviction relief proceedings, the trial judge has been deprived of the chance to cure the violation.[35] Costs and uncertainties are also greater because of the lapse of time.[36] And the strong interest in the finality of criminal convictions is also at risk.[37]After weighing the competing interests, the Court struck the balance in favor of requiring prejudice to be shown for ineffective assistance of counsel claims for certain structural errors raised for the first time in postconviction proceedings.

         The same factors at play in Weaver are present here. Neither party raised an objection, which would have allowed the trial judge to rule on a Batson violation at trial. The lapse of time before raising the claim-over a decade-has resulted in added costs and uncertainties between what occurred at trial and after-the-fact testimony over a decade later in postconviction proceedings. Perhaps most important, relieving Cabrera of the prejudice requirement would lead to opportunistic behavior by the defense. Like Cabrera did here, defendants could hedge their bets. During jury selection, if the State did not object, peremptory strikes could be exercised for improper purposes to get the jury venire the defense wanted in the hope of an acquittal. If things did not work out at trial, the defendant could, assisted by the testimony of his trial counsel, challenge his strikes in postconviction proceedings as unconstitutional because they were race-based. A new trial would automatically follow. To allow this in light of the benefit Cabrera believed he received by striking the three jurors "would make a laughingstock of the judicial process."[38]

         Cabrera admitted he could not prove prejudice from his strikes.[39] His ineffective assistance of counsel claim based on a Batson error was properly dismissed for failure to show prejudice from his own decisions.

         B.

         In March 1997, Wilmington Police went to Cabrera's father's residence, where Cabrera lived at the time, to search for evidence related to the Otero murder. Cabrera's father signed a "Consent to Search Form, " told the police his (Cabrera's father's) gun was in the house, and then led the police to the gun. Cabrera's father also told the police that Cabrera knew where he kept the gun and that Cabrera had access to it. The police seized the gun. A firearms and ballistics analyst testified during Cabrera's trial that the bullets found in the bodies of Saunders and Rowe were fired from the gun taken from Cabrera's father's residence.

         Cabrera argues that his trial counsel was ineffective for failing to move to suppress his father's gun. According to Cabrera, although Cabrera's father consented to search the house, the police lacked separate probable cause to believe the seized gun was evidence of a crime. Further, trial counsel's reason for not moving to suppress the gun-it would be inconsistent with strategy at trial to deny that Cabrera had access to the gun-was objectively unreasonable because Cabrera could have claimed with impunity at the suppression hearing that the gun was in fact under his control.[40] The Superior Court disagreed and dismissed the claim.

         Warrantless searches conducted with valid consent are a recognized exception to the warrant requirement.[41] Consent is valid if it is given voluntarily and if the person giving consent has the authority to do so.[42] Cabrera does not challenge the voluntariness of his father's consent. In light of Cabrera's father's consent to search the house and take the gun, trial counsel was not ineffective for failing to move to suppress the gun.

         It is accurate that law enforcement generally must have probable cause before searching an area, and then probable cause to seize evidence uncovered during a search.[43] The cases relied on by Cabrera, however, involved warrantless searches and seizures.[44] Here, Cabrera's father voluntarily consented to the search of his residence for evidence pertinent to the Otero murder. Cabrera's father also consented to removal of the gun from his house. Given these facts, we fail to see how Cabrera could have succeeded on a motion to suppress a gun voluntarily turned over by its owner. The Superior Court correctly dismissed this claim.

         C.

         In a search of Cabrera's father's residence, the investigating detective also took several belts. On January 9, 2001, the first day of jury selection, Dr. Richard Callery, the Medical Examiner for the State of Delaware, compared the belts to photographs of Rowe's injuries. Dr. Callery was prepared to testify that the distinct pattern on the buckle of one of the belts could have caused the injuries on Rowe's upper torso. That same day, the State informed Cabrera's trial counsel that it intended to offer Dr. Callery's testimony at trial.

         Cabrera's trial counsel moved to exclude the comparison, claiming the late disclosure of the belt evidence violated the State's discovery obligations. He also argued that there was no evidence to connect the belt buckle with Cabrera. The court agreed, ruling that Dr. Callery's comparison was inadmissible.[45]

         One week later the State called Mileka Mathis to testify that Cabrera owned the belt with the particular buckle at the time of the Rockford Park murders. Mathis testified that she and Cabrera had a sporadic sexual relationship and that she was familiar with the clothing Cabrera wore. When Mathis was shown the belt buckle, she testified that she had seen that type of buckle before and that Cabrera had worn it. On cross-examination, Mathis testified that the investigating detective had contacted her by phone over the previous three to four weeks. According to Mathis, the investigating detective also showed her a "lineup" of the belts seized from Cabrera's father's residence.

         The trial court then reconsidered its prior ruling and allowed Dr. Callery to express his opinion about the belt buckle wounds. The trial judge recessed trial for a week to allow the defense time to address Dr. Callery's testimony. Cabrera's trial counsel reasserted his objection but eventually countered Callery's testimony with another expert, Dr. Ali Hameli.

         Cabrera argues on appeal that the State violated his constitutional rights by the late disclosure of the belt evidence, which, according to Cabrera, rendered his trial fundamentally unfair.[46] We agree with the Superior Court, however, that Cabrera previously raised the same or substantially similar arguments in his direct appeal, which our Court rejected.[47] This claim is therefore barred under Rule 61(i)(4) which precludes relitigation of issues already considered in earlier proceedings. We also agree with the Superior Court that reconsideration of the same claims is not warranted in the interests of justice. Rule 61(i)(4)'s bar on litigating previously considered claims "is based on 'law of the case' doctrine."[48] When applying the interests of justice exception, our Court has recognized two exceptions to law of the case-"when the previous ruling was clearly in error or there has been an important change in circumstances, in particular, the factual basis for issues previously posed . . . [and] [s]econd, the equitable concern of preventing injustice."[49]Neither is present here. Cabrera has merely repackaged as discovery violations the arguments about the belt buckle evidence he made during trial and on direct appeal. The trial court and this Court on direct appeal thoroughly dealt with Cabrera's arguments about the belt buckle evidence and found them without merit.[50] We will not review them a second time.

         Cabrera also raises four ineffective assistance of counsel claims relating to the belt evidence. First, Cabrera argues that his trial counsel failed to prepare for the State's use of the belt evidence and failed to maintain an objection to the discovery violation. We agree with the Superior Court that this argument has no support in the record. After the trial court ruled that Dr. Callery's comparison of the belt buckle to Rowe's injuries was admissible, the court recessed for one week to allow Cabrera's trial counsel to find an expert witness to rebut the comparison. Cabrera's trial counsel raised concerns that the comparison would be misleading and would leave room for inappropriate speculation. And trial counsel repeated a "continuing objection to the admissibility of [the comparison]."[51] Counsel had sufficient time to call Dr. Hameli as an expert witness for Cabrera, whose testimony contradicted Dr. Callery's comparison. The Superior Court correctly held that Cabrera failed to show that his trial counsel's actions fell below an objective standard of reasonableness in addressing the belt evidence.

          Second, Cabrera argues that his trial counsel failed to object to Mathis' identification of the belt in the belt "lineup" even though the lineup was "illegally suggestive."[52] The Superior Court properly dismissed this claim. Cabrera points to no case law his counsel could have cited applying the safeguards regulating human being lineups to inanimate objects. Further, Cabrera cannot demonstrate actual prejudice. As this Court concluded when addressing this issue on direct appeal, even without Mathis' identification, the "circumstantial evidence, in addition to the medical examiner's testimony, demonstrated a nexus between the belt and the crime sufficient to authenticate the evidence and permit its introduction at trial."[53] Counsel could not have been ineffective for raising an argument that in the end would not have affected the admissibility of the belt buckle evidence.

         Third, Cabrera argues that trial counsel was ineffective for failing to maintain the objection to the State's alleged discovery violation. We agree with the Superior Court that the record demonstrates otherwise. Cabrera's counsel made specific objections, continuing through the direct appeal, to the belt buckle evidence, which included its late disclosure.[54] The trial court also granted Cabrera a one-week recess to locate an expert, whose testimony directly rebutted Dr. Callery's opinion. Thus, Cabrera suffered no prejudice.

         Finally, Cabrera argues that his trial counsel was ineffective for failing to file a motion challenging Dr. Callery's expert testimony, despite initially indicating that they planned to file a Daubert motion to preclude his testimony. The Superior Court correctly concluded, however, that the decision to forego a Daubert motion does not fall below an objective standard of reasonableness. Cabrera's counsel assessed the State's evidence and determined, after speaking with his own expert, that the motion was unlikely to succeed.[55] Instead of challenging the testimony by motion, Cabrera's trial counsel shifted focus to the inconsistencies behind the methodology of Dr. Callery's comparison. This strategy also included offering Dr. Hameli to rebut the comparison. Accordingly, counsel's strategy with respect to the belt buckle evidence was not constitutionally ineffective.

         D.

         After Cabrera's conviction, he and Mathis began writing letters to each other. Mathis also contacted Cabrera's trial counsel. Over the course of two interviews with Cabrera's trial counsel, Mathis recanted her trial testimony. She also claimed that she had a periodic sexual relationship with the investigating detective and that he had forced her to testify falsely.

         Following the two interviews, in July 2002, Cabrera's trial counsel filed a motion for a new trial. The Superior Court held a hearing on the motion, at which the investigating detective denied encouraging Mathis to testify falsely and denied a sexual relationship with Mathis. After the State declined to grant Mathis' request for immunity, Mathis refused to testify at the hearing. Cabrera's counsel then argued for the admission of Mathis' statements from the two interviews under an exception to the hearsay rule. On April 3, 2003, the Superior Court denied the motion for a new trial and refused to consider Mathis' interview statements.[56] We affirmed the Superior Court's ruling on direct appeal.[57]

         Much later on, in a 2012 affidavit, Mathis resurrected her false testimony claim. According to Mathis, had she been granted immunity, she would have recanted her previous trial testimony regarding her relationship with Cabrera and her knowledge of the belts.[58] She once again claimed that her earlier testimony about the belts had been coerced and was false. In his postconviction relief motion, Cabrera used Mathis' 2012 affidavit to attempt to raise standalone constitutional violations and accompanying ineffective assistance of counsel claims. We agree with the Superior Court, however, that the claims were barred by Rule 61 or are meritless.

         Turning first to the immunity issue, Cabrera faults the State for refusing to grant Mathis immunity to testify in postconviction proceedings. According to Cabrera, if Mathis had been granted immunity, she would not have invoked her Fifth Amendment privilege, and would have recanted her trial testimony. By withholding immunity, Cabrera contends, ...


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