Flamer v. State

• Decision Date: 26 March 1990
• Citation: 585 A.2d 736
• Parties: William Henry FLAMER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 736

585 A.2d 736

William Henry FLAMER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: March 26, 1990.

Decided: Dec. 21, 1990.

Upon appeal from the Superior Court. AFFIRMED.

John Williams of Schmittinger and Rodriguez, Dover, for appellant.

Gary A. Myers (argued), and Charles E. Butler, Deputy Attys. Gen., Dept. of Justice, Wilmington, for appellee.

Before CHRISTIE, Chief Justice, HORSEY, MOORE, WALSH, and HOLLAND, Justices, constituting the Court en banc.

CHRISTIE, Chief Justice.

The defendant/appellant, William Henry Flamer, was convicted of four counts of murder in the first degree and one count each of robbery in the first degree, possession of a deadly weapon during the commission of a felony, and misdemeanor theft. On the four counts of murder in the first degree, the jury, in a separate hearing following the guilt/innocence phase of trial, recommended the death penalty which was imposed by Superior Court. On direct appeal to this Court, Flamer's convictions and sentences were affirmed. Flamer v. State, Del.Supr., 490 A.2d 104 (1983) cert. denied (guilt phase) 464 U.S. 865, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983), cert. denied (penalty phase) 474 U.S. 865, 106 S.Ct. 185, 88 L.Ed.2d 154 (1985) (Flamer I ). This appeal arises out of Flamer's second application for postconviction relief in the Superior Court, which was denied by that court after an evidentiary hearing and extensive briefing. State v. Flamer, Del.Super., Cr.A. Nos. IK79-11-0236-R1, 0237-R1, 0238-R1, 0239-R1, Ridgely, J., 1989 WL 70893 (June 16, 1989) (Memorandum Opinion). On appeal, Flamer raises six contentions. We find the contentions to be without merit and affirm the decision of the Superior Court.

A comprehensive statement of facts relevant to Flamer's crime and conviction is contained in this Court's opinion on direct appeal, Flamer I, 490 A.2d 104. A brief summary of those facts and additional facts necessary to address the present appeal follow.

During the night of February 6, 1979, Byard and Alberta Smith, an elderly couple, were murdered in their home in Harrington, Delaware. Autopsies showed that Byard Smith suffered 79 stab wounds and that his wife had been stabbed 66 times. Alberta Smith's purse was opened and emptied. Various frozen foods, a television, a fan, Byard Smith's wallet, and the couple's automobile were missing from their home.

Flamer was a nephew of the victims and lived approximately 150 yards away from the Smith residence. An individual matching his description was seen near the Smiths' car in the Felton area the following morning. A Felton store clerk identified Flamer as having been in the store that morning. When a description of the suspect was given to the Smiths' daughter, she identified Flamer by name, and a warrant for his arrest was issued.

On February 7, 1979, the police went to Flamer's residence and received his grandmother's consent to search for him. They entered his bedroom and found a box of frozen food wrapped in the same way as the food which was still at the Smith house. Analysis later showed Byard Smith's fingerprint on one of the food bags. The police found the Smiths' television set and fan in a closet in Flamer's residence. They seized a bayonet and scabbard. They saw on the bayonet what was later found to be human blood, and fibers which were microscopically similar to fibers from the clothing worn by Alberta Smith when she died. Flamer was not present at his residence.

Later that day, Delaware State Police officers arrested Flamer along with two codefendants. The State Police took him to Troop 5 in Bridgeville, Delaware. Spatterings of what appeared to be blood were visible on Flamer's overcoat and under his fingernails, and fresh scratches were on his neck, chest, and torso. One of the codefendants, Andre Deputy, also had scratches on him and carried Byard Smith's wallet and pocket watch.

At his postconviction relief hearing on May 11, 1988, Flamer testified that while being transported to Delaware State Police Troop 5, he asked to telephone his mother to see if he could retain the services of Herman Brown, Sr., an attorney known to his family. At Troop 5, Flamer and Deputy were questioned both individually and together during the afternoon. Flamer was advised of his Miranda rights on several occasions during the period, and on each occasion, he indicated a willingness to speak to the police without an attorney being present.

Flamer's first explanation for the blood on his clothing was that Deputy woke him and summoned him to the Smith residence to assist in removing the frozen foods from the house. In doing so, Flamer discovered that the Smiths had been murdered and that blood was on the frozen foods. While Flamer was relating this story, Deputy told the police that Flamer had given him Byard Smith's wallet and watch. When confronted with Deputy's inconsistent statement, Flamer changed his story and said that he, Deputy, and an alleged second accomplice had gone to the Smiths' house and that the alleged second accomplice had stabbed the victims and handed the food to Flamer, thus accounting for the blood on Flamer.

Questioning ceased at approximately 7 p.m. on February 7, 1979, and Flamer remained overnight at Troop 5. The next morning, the police took Flamer to Justice of the Peace Court No. 6 in Harrington, Delaware, for his initial appearance before a magistrate. At that time, Flamer advised Magistrate A. Tyson Cohee that he wished to make a telephone call to his mother in order to inquire about bail and possible representation by counsel. Magistrate Cohee advised Flamer that he could make a telephone call, but that he would appoint the public defender to represent him in any event. ¹ Flamer asked if that meant he could not make the telephone call, and he was told it did not. Flamer telephoned his mother to ask if she knew of an attorney to represent him. After she gave a negative response, Flamer asked her to come to the Justice of the Peace Court. Delaware State Police Officer William H. Porter advised Flamer that they would soon be returning to Troop 5 and that she should arrange to see him there.

Flamer was then taken back to Troop 5 and placed in a cell for approximately twenty minutes. His mother arrived to see him, and Flamer was released to meet briefly with her. After his mother left, Flamer was returned to the cell. Officer Porter then initiated a conversation with him, which led to a tape recorded statement. ² At no time prior to or during the taped statement did Flamer tell any police officer that he wished to have an attorney present before further questioning commenced. To the contrary, the Superior Court found that Flamer was advised of his Miranda rights, and he voluntarily, knowingly, and intelligently waived them. State v. Flamer, Del.Super., Cr.A. Nos. IK79-11-0236-R1, 0237-R1, 0238-R1, 0239-R1, Ridgely, J. (June 16, 1989) (Memorandum Opinion). In his statement, Flamer admitted that he had stabbed Byard Smith several times during the course of the theft from the Smith residence, but insisted that he had not killed Smith. He also disclosed the location of a second murder weapon.

The Public Defender's Office in Dover received Magistrate Cohee's order appointing the Public Defender as counsel on February 9, 1979. Flamer was interviewed by an investigator, and he gave his version of the murders and the circumstances surrounding his statement. Flamer's defense was assigned to Dennis Reardon, Esquire, a full-time Assistant Public Defender.

During the preliminary hearing on March 1, 1979, Reardon obtained substantial discovery of the State's case, following which he interviewed Flamer, potential witnesses on Flamer's behalf, and all of the State's witnesses. He inspected the crime scene. Reardon discussed the case at length with Dean Johnson, Esquire, counsel for codefendant Deputy. Although the office of the Public Defender had no written procedures manual on the defense of a capital murder charge, Reardon had previously defended a non-capital homicide case. He also discussed Flamer's case with other Assistant Public Defenders familiar with capital case procedures. Reardon did not check the court docket or records of Justice of the Peace Court No. 6 with regard to Flamer's initial appearance, nor did he recognize that Flamer had requested the appointment of counsel while at the Justice of the Peace Court.

Prior to trial, Reardon moved to suppress Flamer's statement on the grounds that Flamer was illegally detained and that the statement was involuntary. Officer Porter testified at the suppression hearing on October 30, 1979 that Flamer's statement following his appearance before the Justice of the Peace Court was made when Flamer initiated a conversation with Porter. Reardon's motion to suppress Flamer's statement was denied. Porter gave a different version of the events which occurred at Troop 5 when he testified at trial on January 30, 1989 that he had initiated the conversation with Flamer. Reardon did not renew the motion to suppress, although his continuing objection to the admission of the taped statement was noted at trial.

Upon the close of evidence at the guilt/innocence phase of the trial, the prosecutor gave a closing argument. Reardon waived his right to present a closing argument, although he had prepared one. The jury found Flamer guilty on February 7, 1980, and Reardon moved unsuccessfully for a judgment of acquittal. Prior to the commencement of the penalty phase of the trial, Reardon spoke with other attorneys in his office regarding how to handle the penalty phase proceeding. At that proceeding, the State presented the record of Flamer's two prior forgery convictions. Reardon presented Flamer, his mother, and his grandmother to testify with regard to mitigating factors. He also introduced two psychological and psychiatric reports about Flamer. On February...