68 F.3d 710 (3rd Cir. 1995), 93-9000, Flamer v. State of Del.

Docket Nº:93-9000.
Citation:68 F.3d 710
Party Name:William H. FLAMER v. STATE OF DELAWARE, Darl Chaffinch, Raymond Callaway, Harold K. Brode, William H. Porter, Gary A. Myers, Loren C. Meyers, Dana Reed, James E. Liguori, Charles M. Oberly, III, Walter Redman, Stanley W. Taylor, Acting Warden; Warden Robert Snyder, William Henry Flamer, Appellant.
Case Date:October 19, 1995
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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68 F.3d 710 (3rd Cir. 1995)

William H. FLAMER


STATE OF DELAWARE, Darl Chaffinch, Raymond Callaway, Harold

K. Brode, William H. Porter, Gary A. Myers, Loren C. Meyers,

Dana Reed, James E. Liguori, Charles M. Oberly, III, Walter

Redman, Stanley W. Taylor, Acting Warden; Warden Robert Snyder,

William Henry Flamer, Appellant.

No. 93-9000.

United States Court of Appeals, Third Circuit

October 19, 1995

Argued Feb. 16, 1994.

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Charlene D. Davis (argued), Bayard, Handelman & Murdoch, P.A., Wilmington, DE, Joshua L. Simon, Law Office of David Staats, Wilmington, DE, for Appellant.

Gary A. Myers (argued), Deputy Attorney General, Delaware Department of Justice, Georgetown, DE, Paul R. Wallace, Carl C. Danberg, Department of Justice, Wilmington, DE, for Appellees.

Before: BECKER, HUTCHINSON, [*] and ALITO, Circuit Judges.


ALITO, Circuit Judge:

William Henry Flamer, whose first-degree murder conviction and death sentence were affirmed by the Delaware Supreme Court,

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took this appeal from an order of the district court denying his petition for a writ of habeas corpus. When Flamer's appeal was initially presented to this panel, he argued: (1) that his confession was obtained in violation of the Fifth and Sixth Amendments and therefore should have been suppressed; (2) that his trial counsel was constitutionally ineffective; (3) that the penalty-phase jury instructions violated the Eighth Amendment because they improperly implied that the jury's imposition of a death sentence would be reviewed by an appellate court; (4) that the penalty-phase jury instructions violated the Eighth Amendment because they referred to vague and duplicative statutory aggravating circumstances; and (5) that the district court record should have been expanded to include the criminal record of Flamer's accomplice, Andre Deputy. The fourth of these arguments was similar to an argument that was raised in Bailey v. Snyder, No. 93-9002, which was heard by another panel of our court while Flamer's appeal was under consideration by this panel. Before a panel opinion was filed in either case, the full court voted to rehear both cases for the purpose of addressing the shared issue. In this opinion, the panel that initially heard Flamer's appeal discusses and rejects all of Flamer's arguments other than the argument that was considered by the court in banc. The latter issue is addressed and rejected in a separate opinion that is being filed simultaneously on behalf of the in banc court. Therefore, the order of the district court denying Flamer's petition for a writ of habeas corpus will be affirmed.


The bodies of Byard and Alberta Smith, an elderly couple, were discovered by their 35-year old son, Arthur, on the morning of February 7, 1979, in their home just outside Harrington, Delaware. Byard Smith had been stabbed 79 times, primarily in the head and neck. His wife, Alberta, had been stabbed 66 times. Both victims had been stabbed with two knives. The Smiths were found on the floor of the living room, surrounded by blood and overturned chairs. Byard Smith's pockets had been turned out and emptied. In the kitchen, packages of frozen food lay strewn about the floor. The Smiths' car and television set were missing.

Upon discovering the bodies, the Smiths' son immediately called the police. Within hours, the police located the stolen car and identified William Henry Flamer, a nephew of Alberta Smith, as a possible suspect. The police went to Flamer's residence, which he shared with his grandmother and his father, and Flamer's grandmother invited the police to search the home. In Flamer's room, they discovered packages of frozen food similar to those found on the floor of the Smiths' kitchen. The Smiths' television set and fan were discovered in the kitchen closet, and a blood-encrusted bayonet was found on a stand in the kitchen.

The police presented their evidence to a Justice of the Peace and obtained a warrant to arrest Flamer for murder in the first degree. Acting on information that Flamer was in the Blue Moon Tavern on Route 13, the police discovered him walking near the tavern with two companions. Flamer had blood on his hands and clothing and fresh scratches on his neck and chest. The police arrested Flamer and brought his companions in for questioning. One of Flamer's companions, Ellsworth Coleman, was released soon thereafter. The other man, Andre Deputy, 1 was found to be carrying several items belonging to the Smiths, including two watches and a wallet containing Byard Smith's driver's license, automobile registration, and Social Security card.

Flamer and Deputy were questioned, at times together and at times separately, from 4:00 in the afternoon until 7:00 or 8:00 that evening at Troop 5 in Bridgeville. The men gave conflicting accounts, each blaming the other for the murders. Miranda rights were read to Flamer several times during the interrogation, and each time, he waived his right to an attorney. Flamer claimed at a later suppression hearing that he repeatedly

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asked permission to call his mother so that she could contact Herman Brown, Sr., their family's lawyer, to represent him. However, this testimony was not credited by the Delaware courts, which found that Flamer did not request an attorney until his arraignment. See Flamer v. State ("Flamer IV "), 585 A.2d 736, 747 (Del.1990); Flamer v. State ("Flamer I "), 490 A.2d 104, 114 (Del.1983 and 1984).

There was a snowstorm on the day of the arrest, and the Harrington Justice of the Peace had closed at 4 p.m. Rather than drive Flamer to Dover, which was the nearest available site for an arraignment, the police placed him in a cell in Troop 5 overnight. Without further interrogation, Flamer was brought before the Harrington Justice of the Peace in the morning for his initial appearance.

At the arraignment, Flamer was informed of the charges against him and was again informed of his rights. Flamer asked the magistrate whether he could call his mother in order to ask about possible representation by Herman Brown, Sr. The magistrate told him he would be able to do so but also appointed the Public Defender to represent him in the interim. Flamer was then committed to Sussex County Correctional Institution without bail.

After the arraignment, Flamer called his mother, Mildred Smith, the half-sister of Alberta Smith. Flamer's mother told him that Herman Brown, Sr. had retired. Flamer arranged to meet his mother at Troop 5 before he was taken to the correctional facility, and she spoke with her son briefly at Troop 5 after the arraignment. Soon after Mildred Smith's departure, Corporal Porter, one of the officers who had questioned Flamer a day earlier, addressed him as follows:

I asked him, I said, "Do you believe in God?" and he said, "Yeah." I said, "Then you got to believe in heaven and hell, right?" He said, "Yeah." I said, "Well, then you're going to burn in hell unless you get straight with me about what's happened today" or "what happened yesterday. I want you to tell me." I said, "You have to clear your conscience of what's going on" and this is when he started weakening up a little bit. He had some tears in his eyes and he said, "Okay, I'll talk to you." That's when I took him out of the cell.

Joint Appendix ("JA") at 1096. A short time later, Flamer confessed.

In his confession, which was given before he had consulted an attorney, Flamer gave the following account of the murders. After a day of drinking, he and Andre Deputy went to the Smiths' house just before midnight in order to rob them. Id. at 32. They brought with them a bayonet, a smaller knife, and a shotgun, and they hid the shotgun outside the Smiths' home. Flamer carried the smaller knife, and Deputy concealed the bayonet under his coat. In order to gain entry to the Smiths' home, Flamer told Alberta Smith that his grandmother had had a stroke and was missing. Id. at 32. Flamer and Deputy stood just inside the house speaking to the Smiths for about ten or fifteen minutes until Flamer, acting on a signal from Deputy, began to stab Byard Smith with the smaller knife, which he later threw away when he was stopped by the police on Route 13. Id. at 33-34. After Flamer began stabbing his uncle, Deputy began to stab Alberta Smith with the bayonet. At some point, Deputy also stabbed Byard Smith with the bayonet. After the couple died, the two men searched the bodies for money and found four wallets. Id. at 36. They fled in the Smiths' car, which they had loaded with property stolen from the house.

The two men drove to Flamer's home, where they stored some stolen items and burned three of the four wallets that they had taken from the Smiths. (The fourth was recovered from Deputy when the men were arrested.) Id. at 36. Flamer left his home alone in the Smiths' car. Outside Felton, Delaware, he became so drunk that he fell asleep. When he awoke, the car's battery was dead. Id. at 36-37. He abandoned the car, went to the Blue Moon Tavern to meet Deputy and to shoot pool and drink, and he was arrested a few hours later.

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Flamer was tried before a jury in 1980 on four charges of murder in the first degree, 2 possession of a deadly weapon during the commission of a felony, first-degree robbery, and misdemeanor theft. Id. at 648. Among the witnesses at the trial was the state medical examiner, who had performed autopsies on the bodies of Alberta and Byard Smith. The medical examiner testified that both bodies had been stabbed with two different weapons, a bayonet and a smaller knife described as a kitchen paring knife. Id. at...

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