Capano v. State, 131, 2005.

CourtUnited States State Supreme Court of Delaware
Citation889 A.2d 968
Docket NumberNo. 131, 2005.,131, 2005.
PartiesThomas J. CAPANO, Defendant Below, Appellant, v. STATE of Delaware, Appellee.
Decision Date10 January 2006

Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr. ID. No. 9711006198(R-1).

Upon appeal from the Superior Court. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

Joseph M. Bernstein, Wilmington, DE, for appellant.

Ferris W. Wharton (argued) and Loren Meyers of the Department of Justice, Wilmington, De, for appellee.

Before STEELE, Chief Justice, HOLLAND, JACOBS, RIDGELY, Justices and NOBLE, Vice Chancellor,* constituting the Court en Banc.

RIDGELY, Justice, for the majority:

Defendant-appellant, Thomas J. Capano, was convicted by a jury of Murder in the First Degree, and was sentenced to death by a Superior Court Judge after the jury advised the Judge by a vote of 11 to 1 that a statutory aggravating circumstance existed which made Capano eligible for the death penalty. This Court affirmed the conviction and death sentence on appeal, specifically rejecting Capano's challenge to the death sentence because the sentencing judge, and not the jury, determined his eligibility for a sentence of death.1 This Court was guided by the United States Supreme Court's decision in Walton v. Arizona.2 Capano then petitioned for certiorari review by the United States Supreme Court. While his petition was pending the United States Supreme Court decided Ring v. Arizona3 which overruled Walton "to the extent that it allow[ed] a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty."4 In Ring, the United States Supreme Court held that a statutory aggravating circumstance operated as "the functional equivalent of an element of a greater offense" and that the Sixth Amendment required that this element be "found by a jury."5

Capano's petition for certiorari review was denied by the United States Supreme Court.6 Capano then moved for postconviction relief in the Superior Court and argued that his death sentence must be vacated because of the Ring decision and other decisions interpreting Ring. He also claimed his conviction should be set aside based on multiple claims that his counsel was ineffective. After an evidentiary hearing, the Superior Court rejected all of Capano's arguments and denied postconviction relief.7 Capano's death sentence was reimposed and then stayed pending the outcome of this appeal.8

In this appeal, Capano has limited his claims of ineffective assistance of counsel to three of those that he raised before the Superior Court.9 Capano also claims that the death penalty statute under which he was sentenced ("the 1991 statute") is facially unconstitutional under Ring, or unconstitutional as applied to him, and that principles of Double Jeopardy bar a new penalty hearing.

We affirm the judgment of the Superior Court, holding that Capano has failed to establish his ineffective assistance of counsel claims. We reject Capano's claim that the 1991 statute is unconstitutional, but find a constitutional flaw in its application to him under the new rule announced by the United States Supreme Court in Ring. A factual determination of eligibility for the death penalty must be found by a jury because under Ring, eligibility based upon the existence of a statutory aggravating circumstance is no longer merely a sentencing factor but, rather, is an element of the greater offense of capital murder. In Delaware, the elements of any criminal offense, including the greater offense of capital murder, must be found by a unanimous jury. Because Capano's eligibility for the death penalty was decided by the sentencing judge without a unanimous jury finding of a statutory aggravating circumstance, we must vacate his death sentence. This constitutional flaw in the penalty phase does not bar a new penalty hearing under a procedure that comports with constitutional requirements. Accordingly, we remand this matter for a new penalty hearing consistent with Ring and the death penalty statute that was enacted in response to the Ring decision ("the 2002 statute").10

I. Background

In a previous Opinion,11 this Court discussed the events leading to the conviction and capital sentence. We repeat our earlier introduction:

Thomas J. Capano was found guilty of first degree murder and sentenced to death for the murder of Anne Marie Fahey. As with all capital cases in Delaware, the proceedings here were divided into a guilt phase, a penalty hearing and a sentencing determination by the trial judge, who gave substantial weight to the jury's recommendation following the penalty hearing.12 Capano was arrested for Fahey's murder in November 1997 and indicted in December 1997. His trial began in Superior Court in October 1998. The guilt phase of this proceeding before the jury was quite long, spanning approximately thirty-two trial days spread over ten weeks from October 6, 1998 to January 17, 1999. After the jury unanimously found Capano guilty of first degree murder, the penalty hearing commenced. It lasted for five days and resulted in findings by the jury on aggravating and mitigating circumstances. In the penalty phase the jury found a statutory aggravating circumstance by a vote of 11 to 1 and recommended by a vote of 10 to 2 that the trial judge find the aggravating circumstances outweighed the mitigating circumstances. After giving proper weight to those findings, the Superior Court Judge sentenced Capano to death on March 16, 1999.13

On direct appeal, this Court affirmed. Capano petitioned to the United States Supreme Court for certiorari review. One week before that Court denied Capano's petition for certiorari, it decided Ring v. Arizona, the case that forms the basis for Capano's subsequent Rule 61 motion and this appeal.

The decision of the United States Supreme Court in Ring v. Arizona announced a new procedural rule and applies to Capano's case because at the time Ring was decided, Capano's conviction was not final.14 Capano's petition for certiorari was pending when Ring was decided. After Ring was decided, Capano's petition was denied by the United States Supreme Court without comment.15

II. Discussion
A. Capano's Ineffective Assistance of Counsel Claims Lack Merit

We first discuss Capano's ineffective counsel claims. Specifically, Capano contends that his trial counsel was prejudicially deficient because counsel: (1) did not request limiting instructions concerning Anne Marie Fahey's out-of-court statements; (2) agreed to a stipulation that admitted Fahey's out-of-court statements; and (3) did not object to the prosecutor's cross-examination of Capano about his pre-arrest and post-arrest silence in possible violation of his Fifth Amendment rights. We hold the Superior Court, in denying Capano's motion for postconviction relief, did not abuse its discretion by rejecting these contentions.

"We review for an abuse of discretion a Superior Court judge's denial of a motion for postconviction relief based on ineffective assistance of counsel."16 "Nevertheless, we carefully review the record to determine whether `competent evidence supports the court's findings of fact and whether its conclusions of law are not erroneous.'"17 Questions of law are reviewed de novo.18

To prevail on his claim of ineffective assistance of counsel, Capano must satisfy the test set out by the United States Supreme Court in Strickland v. Washington:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.19

Regarding the first prong, deficient performance, there is a strong presumption that counsel's representation was professionally reasonable:20

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.21

As for the second prong, "actual prejudice" means "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."22

Capano's first and second ineffective assistance of counsel contentions are that his trial counsel should not have stipulated to admit Anne Marie Fahey's out-of-court statements, and that counsel should have requested jury limiting instructions concerning them. During the trial, the prosecution introduced out-of-court statements from the victim, Anne Marie Fahey. As a matter of strategy, the defense lawyers stipulated with the prosecutors that they would not object to the prosecution's hearsay evidence, provided the prosecutors would not object to the defense's hearsay evidence. Capano contends that his counsel's strategy meets both prongs of Strickland. First, he contends it was professionally unreasonable for defense counsel to agree to admit all the prosecution's hearsay evidence; and second, he contends this admission into evidence caused actual prejudice because without it, the...

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23 cases
  • Capano v. Carroll, Civil Action No. 06-58.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • April 15, 2008 proceeding, the state Supreme Court overturned his death sentence and remanded for a new penalty trial. Capano v. State, 889 A.2d 968 (Del.2006). When the State elected not to proceed with that second trial, Capano was resentenced to life in prison without the possibility of......
  • Jackson v. State, SC13–1232
    • United States
    • United States State Supreme Court of Florida
    • March 23, 2017
    ...534, 65 P.3d 915, 933 (2003) ; People v. Williams , 49 Cal.4th 405, 111 Cal.Rptr.3d 589, 233 P.3d 1000, 1040–41 (2010) ; Capano v. State , 889 A.2d 968, 977 (Del. 2006) ; State v. Lovelace , 140 Idaho 73, 90 P.3d 298, 300 (2004) ; State v. Whitfield , 107 S.W.3d 253, 262 (Mo. 2003) ; State ......
  • Rauf v. State, 39, 2016
    • United States
    • United States State Supreme Court of Delaware
    • August 2, 2016
    ...the aggravators outweigh the mitigators means the jury believes that death should be the defendant's penalty. 296 See Capano v. State, 889 A.2d 968, 978 (Del. 2006); Claudio v. State, 585 A.2d 1278, 1301 (Del. 297 See supra notes 27, 42 and accompanying text. 298 See Smith, supra note 48, a......
  • Rauf v. State, 39, 2016
    • United States
    • United States State Supreme Court of Delaware
    • August 2, 2016
    ...the aggravators outweigh the mitigators means the jury believes that death should be the defendant's penalty. 301. See Capano v. State, 889 A.2d 968, 978 (Del. 2006); Claudio v. State, 585 A.2d 1278, 1301 (Del. 1991). 302. See supra notes 27, 42 and accompanying text. 303. See Smith, supra ......
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