State v. Dickerson

Citation298 A.2d 761
PartiesSTATE of Delaware, Plaintiff, v. Randolph DICKERSON, Defendant.
Decision Date01 November 1972
CourtUnited States State Supreme Court of Delaware

Richard R. Wier, Jr., State Prosecutor, and Mason E. Turner, Jr., Duputy Atty. Gen., Wilmington, for plaintiff.

Richard Allen Paul and Arlen B. Mekler, Asst. Public Defenders, Wilmington, for defendant.

Louis L. Redding, Wilmington, for Delaware State Conference of Branches of the National Association for the Advancement of Colored People, amicus curiae.

Before WOLCOTT, C.J., and CAREY and HERRMANN, JJ.

HERRMANN, Justice (for the Majority of the Court):

This certification presents the question of the constitutionality of capital punishment under our First Degree Murder Statute (11 Del.C. § 571) 1 and our Recommendation of Mercy Statute (11 Del.C. § 3901), 2 in the light of the recent decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), dealing with capital punishment as 'cruel and unusual' punishment under the Eighth and Fourteenth Amendments.

I.

The defendant is awaiting trial on the charge of murder in the first degree in violation of 11 Del.C. § 571.

Stating that an early determination thereof by his Court is necessary as guidance in the proper trial of this case and other first degree murder cases now pending, the Superior Court has sought and obtained certification of the following questions of law:

1. Are the discretionary mercy provisions of 11 Del.C. § 3901 unconstitutional under Furman v. Georgia?

2. If the answer to Question 1 is yes, is the mandatory death penalty prescribed in 11 Del.C. § 571 constitutional?

II.

The threshold problem is an accurate understanding of the precise holding of the Furman case which has become the law of the land binding upon this Court. This presents some difficulty, in view of the fact that each of the nine justices wrote a separate opinion setting forth a different rationale, while a tenth Per curiam opinion represents the decision of the Court in its 5--4 division. Dissenting members of the Court, themselves, expressed doubt as to the precise scope and meaning of the majority decision in Furman. 3

It is easier at the outset to state what Furman did not decide: The United States Supreme Court has not ruled in Furman that capital punishment, Per se, is violative of the Eighth and Fourteenth Amendments 4 ban on cruel and unusual punishment; nor has it ruled that the death penalty is barred for any particular class or classes of crimes. Only 2 of the 5 concurring justices, Justices Brennan and Marshall, concluded that the Eighth Amendment prohibits capital punishment for all crimes and under all circumstances; the third concurring member of the Court, Justice Douglas, refrained from reaching that ultimate question, deciding the cases on an equal protection of the laws basis; and the other 2 members of the majority, Justices Stewart and White, did not reach the ultimate question because they concluded that the death sentences before the Court must be set aside on the ground that the sentencing practices followed violated the Eighth Amendment. 5

The sum and substance of the decision that ultimately earned the support of a majority of the Court in Furman was expressed in the Per curiam opinion as follows: (92 S.Ct. at 2727)

'The Court holds that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.'

Otherwise stated, the decision of the United States Supreme Court in Furman was limited to the holding that the death sentences, as imposed in the cases then before it, constituted 'cruel and unusual' punishment within the ban of the Eighth Amendment.

For the clearest understanding of the limited decision of the United States Supreme Court in Furman, we must look to the concurring opinions of Justices Douglas, Stewart, and White:

Mr. Justice Douglas based his decision (92 S.Ct. at 2727) on the belief that capital punishment statutes, which leave the decision of life or death in the uncontrolled discretion of judge or jury, are being applied in a way that discriminates against minorities and the poor; and that such 'discrimination is * * * not compatible with the idea of equal protection of the laws that is implicit in the ban on 'cruel and unusual' punishments.'

Mr. Justice Stewart pointed out (92 S.Ct. at 2760) that the constitutionality of capital punishment in the abstract was not before the Court in Furman. He stated that death sentences which are left to the uncontrolled discretion of judge or jury are being applied on such random and capricious basis that the imposition thereof has become cruel and unusual; that the states do not apply capital punishment uniformly or automatically; that few defendants actually incur the death penalty; that those who do 'are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.'

Further: 'These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.' Concluding: '* * * the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.'

Mr. Justice White wrote (92 S.Ct. at 2763) that, although he does not decide that the death penalty is unconstitutional Per se, he does believe that the death penalty is now so infrequently imposed that it no longer satisfies 'any existing general need for retribution' or has any deterrent value; that 'there is no meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many cases in which it is not'; that, therefore, the Eighth and Fourteenth Amendments were violated by the death sentences imposed.

Manifestly, therefore, the effect of Furman is to invalidate the uncontrolled discretionary imposition of the death penalty by jury or judge. The Furman decision goes that far, but no farther.

III.

As thus analyzed, the fatal effect of the Furman decision upon our Recommendation of Mercy Statute (hereinafter 'Mercy Statute') is clear. That Statute delegates to jury and judge uncontrolled discretion in the imposition of the death penalty. Under the Mercy Statute, there is room for that caprice, whim, and discrimination in the imposition of the death penalty that now stands condemned by the United States Supreme Court in Furman.

The fatal effect of the Furman decision upon the Mercy Statute is conclusively demonstrated by the mandates, arising out of Furman, received by this Court from the United States Supreme Court in certain first degree murder cases which had been tried under the combined Murder Statute and Mercy Statute, in which convictions were had and death sentences imposed, and appeals then taken to the United States Supreme Court. In each of those Delaware cases, the United States Supreme Court implemented Furman by vacating the judgment of conviction 'insofar as it leaves undisturbed the death penalty imposed' and by remanding each cause to this Court for 'further proceedings'.

It follows that the Mercy Statute must fall under the Furman decision as being violative of the Eighth Amendment. All parties concur in that conclusion.

IV.

The question then arises as to whether our First Degree Murder Statute (hereinafter 'Murder Statute'), and the mandatory death penalty contained therein, stands alone or whether it falls with the Mercy Statute under the Furman decision.

It is argued that the penalty provision of the Murder Statute may not stand alone because, together with the invalid Mercy Statute, it is a constituent and inherent part of a statutory scheme; that, therefore, the two Statutes are unseverable. In support and in opposition to this contention, both sides rely upon the legislative history of the two Statutes 6 in their efforts The defendant and the Amicus contend that the trend of capital punishment throughout the nation in 1961 does not permit the conclusion that the Legislature intended to regress by going from the total abolition of the death sentence to the other extreme of the mandatory death sentence which, by then, had disappeared in practically every other State. 7 The State contends that the basic legislative intent in 1961 was clear; to restore the death penalty; that the Mercy Statute was a secondary consideration; and that the passage of the Murder Statute and the Mercy Statute in separate enactments 8 indicated severability We find it unnecessary to engage in such conjecture as to legislative intent regarding severability. The question is governed by 1 Del.C. § 308. 9 It is there provided that if any provision of the Code or the application thereof is held invalid, 'such invalidity shall not affect the provisions or application of this Code * * * that can be given effect without the invalid provisions or application, and to this end the provisions of this Code * * * are declared to be severable.'

to demonstrate legislative intent upon the question of severability. Legislative intent, of course, governs the issue of severability if it may be ascertained with reasonable certainty. State v. Ayers, Del.Supr., 260 A.2d 162 (1969). Unfortunately, we have no recitals, minutes, reports, or other indicia of legislative intent to aid in resolving the question. Compare Sincock v. Gately, 262 F.Supp. 739, 745 (D.Del. 1967). We are left to supposition. in the absence of an express provision to the contrary.

The question then becomes this: may the Murder Statute be 'given effect' without the 'invalid provisions or application' of the Mercy Sta...

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