Ferguson v. State

• Citation: 642 A.2d 772
• Decision Date: 03 May 1994
• Docket Number: Nos. 566,1992 and 568,1992,s. 566,1992 and 568,1992
• Parties: Cornelius E. FERGUSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 772

642 A.2d 772

Cornelius E. FERGUSON, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Nos. 566,1992 and 568,1992.

Supreme Court of Delaware.

Submitted: May 3, 1994.

Decided: June 7, 1994.

As Corrected June 14, 1994.

Upon appeal from the Superior Court. AFFIRMED.

Bernard J. O'Donnell, Office of Public Defender, Wilmington, for appellant.

Richard E. Fairbanks, Jr. (argued), and Timothy J. Donovan, Jr., Dept. of Justice, Wilmington, for appellee.

Before VEASEY, C.J., MOORE, WALSH, HOLLAND, and HARTNETT, JJ. (constituting the Court en Banc)

HOLLAND, Justice:

The defendant-appellant, Cornelius Ferguson ("Ferguson"), was convicted after a jury trial in the Superior Court on two counts of Murder in the First Degree; two counts of Possession of a Deadly Weapon During the Commission of a Felony; and one count of Conspiracy in the First Degree. After a penalty hearing, held on November 16-18, 1992, the jury unanimously found that the State had established three statutory aggravating circumstances beyond a reasonable doubt. The jury also unanimously found that the aggravating circumstances found to exist outweighed the mitigating circumstances found to exist. 11 Del.C. § 4209(c)(3).

The trial judge, undertaking the identical statutory analysis, arrived at the same ultimate conclusion. 11 Del.C. § 4209(d). The Superior Court's sentencing rationale was set forth in an eighteen-page decision. The Superior Court judge sentenced Ferguson to death by lethal injection for each of his convictions for Murder in the First Degree. ¹

An automatic appeal was docketed with this Court. 11 Del.C. § 4209(g). Ferguson's attorney also filed a timely notice of appeal. This Court consolidated these appeals and stayed the execution of Ferguson's death sentence until the completion of its review.

Ferguson's Contentions

In this direct appeal, Ferguson has raised eight claims of error. First, Ferguson contends that because Delaware law now prescribes only an advisory function for the jury, the striking of jurors for cause based upon their expressed reservations about the death penalty denied him an impartial jury composed of a "cross-section of his peers." Second, Ferguson argues that the same right to a impartial jury was impaired by the Superior Court's excusal for cause of one juror, whose stated beliefs concerning the death penalty were not so strong as to prevent or substantially impair the juror's fulfillment of his duties. Third, Ferguson argues that the Superior Court abused its discretion when it denied his motion for a mistrial following the State's rebuttal argument to the jury.

Fourth, Ferguson asserts that the imposition of a sentence of death was constitutionally impermissible, since the aggravating circumstances did not outweigh the mitigating circumstances "beyond a reasonable doubt" and death was an inappropriate punishment "under all the circumstances." Fifth, Ferguson contends in this appeal that the Superior Court's instruction to the jury concerning the weighing of aggravating and mitigating circumstances was materially misleading and constituted plain error.

Sixth, Ferguson contends that the sentence of death violated the Eighth Amendment because felony murder as a statutory aggravating circumstance does not adequately narrow the class of persons eligible for a death sentence. Seventh, Ferguson contends that in the weighing of aggravating circumstances against mitigating circumstances, the advisory jury was improperly permitted to "double count" the statutory aggravating circumstances that the murder was committed during a robbery and was committed for pecuniary gain. Finally, Ferguson contends that the imposition of a sentence of death pursuant to the procedures of the 1991 amendments to the Delaware death penalty statute, enacted after Ferguson committed his offenses, violated the ex post facto clause of the United States Constitution and the Due Process Clause of the Fourteenth Amendment.

This Court has carefully considered each of Ferguson's contentions. We have concluded that none of Ferguson's arguments demonstrates reversible error. We have also undertaken the proportionality review mandated by the Delaware death penalty statute. We have determined that the imposition of a sentence of death upon Ferguson satisfies the requirements of the statute. 11 Del.C. § 4209(g)(2). Accordingly, all of the judgments of the Superior Court, including those sentencing Ferguson to death by lethal injection, are affirmed.

Facts

The record reflects that Ferguson shot and killed Troy Hodges ("Hodges"). The homicide took place on the night of August 5, 1991, in the parking lot of the Tri-State Mall (the "Mall") in Claymont, Delaware. Ferguson was accompanied by Tyrone Hyland ("Hyland"). ²

Both Ferguson and Hyland lived in Chester, Pennsylvania. Hodges, who was apparently a drug dealer living in Wilmington, had negotiated to purchase a half-kilogram of cocaine for $10,000 either directly from Hyland or from a third party, with Hyland acting as middleman. Hodges arranged to meet Hyland at the Mall.

Hodges had a friend, Alvin Wiggins ("Wiggins"), accompany him to the Mall. Wiggins was seventeen years old at the time of these events. Wiggins was also apparently a drug dealer. Wiggins testified at Ferguson's trial.

According to Wiggins, before they drove to the Mall, Hodges gave Wiggins a plastic bag holding two smaller packages, each of which contained $5,000 in cash. They then drove to the Mall and parked in the lower lot. Wiggins testified that after they arrived at the Mall, Hodges took one of the two packages of money and instructed him to stay in his car until he received a sign from Hodges or until he returned. ³

Hodges then left and entered a passageway leading to the upper parking lot of the Mall. Hodges was no longer visible to Wiggins. Wiggins waited for Hodges for approximately ninety minutes. During that time, he unsuccessfully attempted to contact Hodges via his "beeper." When Wiggins learned that someone had been shot at the Mall, he drove away.

Ferguson gave a tape recorded statement to the Delaware State Police on September 26, 1991. It was admitted into evidence at trial during the State's case-in-chief. In his statement, Ferguson admitted that he was a passenger in a car driven by Hyland to the Mall on the night of August 5, 1991. Ferguson stated that he was sitting in the back seat of the car.

According to Ferguson, when they arrived at the Mall, Hyland parked the car. Hodges got into the front passenger seat of the car. Hyland and Hodges then argued about money and drugs. According to Ferguson, Hyland then clandestinely gave him a gun. Ferguson stated that the gun was already cocked when he received it. Ferguson pointed the gun at Hodges. ⁴

Hyland and Hodges continued to argue. Ferguson stated that although the car was moving slowly towards the Mall, Hodges opened the car door and tried to leave the car. According to Ferguson, Hodges then slapped at the gun, causing it to "accidentally" fire a single shot. Ferguson claimed that he did not know Hodges had been wounded and died, until days later.

Stewart Cohen ("Cohen") testified that on the night of August 5, 1991, he was in the parking lot of the K-Mart at the Tri-State Mall. Cohen stated that he heard a "popping sound." Cohen turned and saw a blue Chevrolet Cavalier moving slowly in the parking lot. Cohen stated he saw a person shoved or jumping out of the car. Cohen testified that this person then ran towards him and collapsed on the sidewalk.

An autopsy revealed that Hodges died of massive hemorrhaging due to a single gunshot wound. The record reflects that the bullet, which was fired from behind, entered his left side and travelled through his body in an upward trajectory. The hole in Hodges' shirt and the wound in his torso indicated that the muzzle of the gun had been pressed against Hodges' body when the shot was fired.

Striking Jurors for Cause

Death Penalty Reservations

Ferguson contends, for the first time on appeal, that the striking of four potential jurors for cause denied him an impartial jury constituting a "cross-section of his peers." See generally Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The record reflects that four jurors were stricken from the venire panel for cause after they had expressed personal reservations about the imposition of a sentence of death. Ferguson argues that the United States Constitution did not require the striking of these four veniremembers in order to ensure an impartial jury, because the Delaware death penalty statute specifies that the jury renders an advisory opinion, which is not binding upon the trial court in determining the appropriate sentence. 11 Del.C. § 4209(d). See Dawson v. State, Del.Supr., 637 A.2d 57, 61 (1994); Sullivan v. State, Del.Supr., 636 A.2d 931, 938-39 (1994). See generally Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

Ferguson acknowledges that this Court initially rejected an identical argument in State v. Cohen, Del.Supr., 604 A.2d 846, 855-56 (1992):

Although not the final arbiters of punishment, jurors still play a vital and important role in the sentencing procedure. The jury sits as the conscience of the community in deciding whether to recommend life imprisonment or the death penalty. Any personal views which would prevent its members from impartially performing this solemn responsibility in accordance with the trial court's instructions are impermissible and contrary to law.

Id. at 856 (citation omitted). This Court subsequently adhered to that portion of its Cohen decision in two separate opinions. Dawson v. State, 637 A.2d at 61; Sullivan v. State, 636 A.2d at 939. Ferguson's plain error argument does not provide any analytical basis for this Court to revisit its holdings in Cohen, Dawson and Sullivan on the same issue.

The Superior Court found that each of...