Albury v. State

• Decision Date: 27 September 1988
• Citation: 551 A.2d 53
• Parties: James K. ALBURY, Defendant-Below, Appellant, v. STATE of Delaware, Plaintiff-Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 53

551 A.2d 53

James K. ALBURY, Defendant-Below, Appellant,

v. STATE of Delaware, Plaintiff-Below, Appellee.

Supreme Court of Delaware.

Submitted: Sept. 27, 1988.

Decided: Nov. 28, 1988.

Rehearing Denied Dec. 16, 1988.

Nancy Jane Perillo, Wilmington, on behalf of appellant.

Rosemary K. Killian (argued), and Richard E. Fairbanks, Jr., Deputy Attys. Gen., Wilmington, on behalf of appellee.

Before MOORE, WALSH and HOLLAND, JJ.

HOLLAND, Justice:

On April 14, 1980, the defendant-appellant, James K. Albury ("Albury"), entered a guilty plea to murder in the first degree, 11 Del. C. § 636(a)(1). Albury was sentenced to life in prison without probation or parole. On December 14, 1984, Albury filed a motion for postconviction relief seeking to withdraw his guilty plea on the grounds of ineffective assistance of counsel. Following an evidentiary hearing by the trial court, the motion was denied. Albury now appeals the denial of that motion to this Court.

Albury has raised three issues in this appeal. He contends through his attorney that: (1) his original attorney's representation violated his Sixth Amendment right to "effective assistance of counsel," and was prejudicial because it resulted in the entry of his guilty plea; (2) the investigation of the facts and pertinent law surrounding his case, by his original counsel, was so deficient that the entry of his guilty plea was involuntary and violative of his right to due process of law; and (3) the prosecutor's refusal to offer a reduced plea on the homicide charge was based on arbitrary policies, and, therefore, constituted an abuse of prosecutorial discretion. The trial court considered and denied each of Albury's contentions. We have concluded that Albury's motion for postconviction relief was properly denied.

Background Facts

On December 21, 1979, the appellant, Albury, shot and killed Susan Layton ("Layton"), his estranged girlfriend and the mother of his infant daughter. Approximately one month prior to the shooting, Albury and Layton had acrimoniously severed their personal relationship. Following their separation, Layton had expressed fears about her safety to friends, family, and employer. Layton is alleged to have told them that Albury had made oral and written threats upon her life.

Albury and Layton were both employed by the DuPont Company and were scheduled to begin work at midnight on the day that Layton was shot. The shooting took place in the parking lot of the DuPont Company plant in Seaford, Delaware. Albury arrived at the parking lot before Layton. Albury waited for Layton with a loaded gun. ¹ Prior to arriving at the parking lot, Albury admitted that he had consumed a substantial amount of alcohol, including vodka, wine, and beer. He had also smoked some marijuana.

When Layton arrived at the parking lot, Albury approached her car with the loaded gun. After a brief verbal exchange, Albury shot Layton four times at close range. Albury immediately fled to the home of one of his friends. That friend called the police to report the shooting. Albury was arrested shortly thereafter at the friend's home. Following his arrest, Albury gave a statement to the police in which he admitted shooting Layton. ²

On the night of his arrest, Albury's family retained Arlen Mekler ("Mekler") to represent him. On January 21, 1980, Albury was indicted by a Sussex County Grand Jury on charges of murder in the first degree pursuant to 11 Del. C. § 636(a)(1), and possession of a deadly weapon during the commission of a felony pursuant to 11 Del. C. § 1447(a).

Albury's trial was scheduled to begin on April 14, 1980. Prior to that date, Mekler, on behalf of Albury, had entered into plea negotiations with the prosecutor, Merritt Burke, III ("Burke"). Mekler sought a reduction in the homicide charge or an agreement by the State not to seek the death penalty. Burke refused to offer a plea to a reduced homicide charge. However, Burke did agree that the State would not seek the death penalty and would dismiss the weapons charge, in exchange for Albury's guilty plea, as charged, to murder in the first degree.

Mekler explained the State's proposal to Albury. Albury decided to accept that "plea bargain." On the date set for his trial, Albury entered a plea of guilty to murder in the first degree. Following the acceptance of Albury's guilty plea, the trial court held a penalty hearing. In accordance with the "plea bargain," the State did not present any evidence at that hearing which would warrant the imposition of a death penalty. At the conclusion of the penalty hearing, the trial court concluded that there was no proof of any statutory aggravating circumstance which would warrant the imposition of the death penalty. Accordingly, Albury was sentenced to life in prison without probation or parole.

Postconviction Motion to Withdraw Guilty Plea

On December 14, 1984, Albury filed a motion for postconviction relief, seeking to withdraw his guilty plea. ³ An evidentiary hearing, consisting of four days of testimony, was held between July 17, 1985 and August 21, 1985. Eleven witnesses testified, including Albury, various members of Albury's family, Albury's original defense attorney, the prosecutor, the chief investigating officer in the case, and a medical doctor who had conducted a psychiatric evaluation of Albury in 1980 pursuant to a court order and who also performed a postconviction evaluation of Albury in 1985. The motion was denied by the Superior Court on June 23, 1987. The evidence presented at the hearing on Albury's postconviction motion is the focus of this appeal.

Hearing on Postconviction Motion

Albury's motion for postconviction relief alleged that Mekler failed to clearly and fully explain to him the nature and consequences of having a trial and the nature and consequences of entering his guilty plea. Albury contended that Mekler failed to make an adequate factual investigation, in particular, with respect to the evidence surrounding the possible defense of extreme emotional distress. Albury also claimed that Mekler failed to apprise him of the pertinent law which precluded the imposition of multiple punishment for a weapon offense and an underlying felony. See Hunter v. State, Del.Supr., 420 A.2d 119 (1980) ⁴. Mekler testified at the hearing which was held on Albury's motion for postconviction relief. According to Mekler, all relevant aspects of the case, both factual and legal, were reviewed with Albury.

Mekler stated that he met with Albury for the first time not long after Albury's arrest. During that interview, Albury told Mekler that he had gone to the DuPont parking lot, with a loaded gun, to wait for Layton. Albury also advised Mekler that he had consumed alcoholic beverages and smoked marijuana prior to shooting Layton. Albury admitted to Mekler that he had "beaten" Layton on three or four prior occasions. Albury also told Mekler that he had threatened Layton's life. Albury denied that those threats were serious.

Mekler testified that subsequent to his initial interview, he appeared with Albury on December 26, 1979, in the Court of Common Pleas, for a preliminary hearing. The preliminary hearing was waived. However, Mekler asked the Judge to order psychiatric and psychological examinations to determine if Albury suffered from any mental illness or defect at the time of the homicide or which would affect his mental competency to stand trial. The Judge ordered those examinations in accordance with Mekler's request.

When those examinations were subsequently completed, the results were a conclusion that there was no evidence of any mental illness and that Albury was competent to stand trial. The reports of the mental examinations did not expressly address the issue of whether or not Albury was suffering from "extreme emotional distress" at the time of the shooting. Mekler stated that he reviewed with Albury the results of the 1980 psychiatric and psychological evaluations. Mekler also testified that he discussed the defense of extreme emotional distress with Albury.

Mekler testified that the prosecutor assigned to Albury's case, Burke, adopted an "open file" policy. Burke provided Mekler with a copy of the police report, Albury's statement, the autopsy report, and all statements obtained from potential State witnesses. Burke also agreed that Mekler could interview the investigating police officers. Mekler stated that he did interview Detective Ralph Mitchell ("Mitchell"), of the Delaware State Police. Mekler also spoke with Mitchell by telephone about the case. Mekler testified that he did not interview any of the State's witnesses who were identified in the police report.

The autopsy result which was given to Mekler by the State revealed that, at the time of her death, Layton was in an early stage of pregnancy. Mekler stated that he told Albury of Layton's pregnancy as soon as he learned of it. Albury was not previously aware of Layton's pregnancy. The statutory list of aggravating factors which permit a jury to impose the death penalty include the pregnancy of the victim. 11 Del. C. § 4209(e)(1)p. In Albury's case, the State concluded that it would ask the jury to impose the death penalty.

Mekler stated that he discussed with Albury all of the information provided to him by Burke and the police. Mekler advised Albury that the State intended to seek the death penalty. Mekler testified that he discussed with Albury the applicable procedures for the imposition of the death penalty. Mekler testified that the possibility of a death penalty was Albury's "overriding concern."

According to Mekler, he tried to dissuade Burke from seeking the death penalty. Mekler also tried to persuade Burke to offer Albury a plea to a reduced homicide charge. In support of these requests, Mekler stated that he advised Burke of the possibility that extreme emotional distress could be asserted as a defense. Mekler testified that Burke remained adamant in his...