Swan v. State

• Decision Date: 27 September 2011
• Docket Number: 2010.,No. 247,247
• Citation: 28 A.3d 362
• Parties: Ralph SWAN, Movant Below–Appellant,v.STATE of Delaware, Respondent Below–Appellee.
• Court: United States State Supreme Court of Delaware

28 A.3d 362

Ralph SWAN, Movant Below–Appellant,

v.STATE of Delaware, Respondent Below–Appellee.

No. 247

2010.

Supreme Court of Delaware.

Submitted: July 20, 2011.Decided: Sept. 6, 2011.Reargument Denied Sept. 27, 2011.

Court Below: Superior Court of the State of Delaware in and for Kent County, ID No. 0002004767A.Upon appeal from the Superior Court. AFFIRMED.Herbert W. Mondros, Esquire, of Margolis Edelstein, Wilmington, Delaware; and Michael Wiseman, Esquire (argued) and Elizabeth Larin, Esquire, of the Federal Community Defender for the Eastern District of Pennsylvania, Philadelphia, Pennsylvania, for Appellant.John Williams, Esquire (argued), of the Department of Justice, Dover, Delaware, for Appellee.Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS, and RIDGELY, Justices, constituting the Court en Banc.RIDGELY, Justice:

I. Introduction

A jury found that the Movant–Below/Appellant, Ralph Swan, and a co-defendant, Adam Norcross, crashed through the patio doors of the home of the Warren family in Kenton, Delaware in 1996, and shot twenty-seven-year-old Kenneth Warren to death in front of his twenty-four- year-old wife, Tina, and their nineteen-month-old son, Dustin. For that crime, the jury recommended to the trial judge, by a seven to five vote, that Swan should receive the death penalty. The trial judge agreed with that recommendation and imposed the death sentence. This Court affirmed Swan's convictions and death sentence on direct appeal.

Thereafter, Swan moved for postconviction relief and a new trial. The postconviction judge (who also was the trial judge) denied those motions after considering voluminous documentary evidence and several days of testimony. On appeal from that postconviction judgment, Swan raises six arguments. First, Swan contends that the trial judge erred in admitting the out-of court statements of his co-defendant. Second, Swan contends that defense counsel was ineffective in failing to investigate the DNA issues in this case until mid-trial and, even then, by investigating the issue in an inadequate manner. Third, Swan contends that certain evidence, that was either unavailable or ineffectively not presented to the jury, demonstrates that Swan is innocent or, alternatively, that a new trial is required in the interest of justice. Fourth, Swan contends that defense counsel was ineffective in failing to rehabilitate prospective jurors or to object to the trial judge's dismissal of them. Fifth, Swan contends that his death sentence is unconstitutional because it was not unanimously recommended by the jury, and because the trial judge and jury did not find that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. And, sixth, Swan contends that defense counsel was ineffective in failing to conduct an adequate mitigation investigation and to present that mitigation evidence to the trial judge and jury. We find no merit to Swan's appeal and affirm the postconviction judge's denial of Swan's motions for postconviction relief and a new trial.

II. Factual Background ¹

Shortly after 8 p.m. on November 4, 1996, the Warren family was settling in for the night in their Kenton, Delaware home. Kenneth Warren was sitting at the kitchen bar eating a sandwich while his wife, Tina, and their son, Dustin, were sitting on the family room couch watching television. Kenneth's mother, Lillian, had just left, after babysitting Dustin while Tina attended an aerobics class. Suddenly, two armed, masked men dressed in camouflage burst through the glass patio doors leading to the family room. They immediately ran into Kenneth and a struggle ensued. The intruders shot Kenneth four times, killing him, while his wife and son watched in horror. The intruders grabbed Tina's purse from the kitchen counter and fled. During the commission of this crime, Tina Warren observed that both assailants carried handguns, one of which appeared to be bronze or copper colored. One assailant appeared to have been shot in the left shoulder.

Ballistics evidence indicated that Kenneth Warren had been shot four times with two different types of handguns, a semi-automatic and a revolver. Kenneth was shot twice in the back, once on the left side of his head behind the left ear, and once through the top of his head. The fourth bullet, fired from a gun barrel held tightly against the top of his head, had traveled through the skull down into the back of his neck, killing him instantly. Examination of the three bullets removed from the victim's body revealed that the two back wounds had been made by .357 caliber copper/nickel jacketed bullets. Those bullets were manufactured by the Winchester Western Corporation under the “Silver Tip” trademark and had been fired from a revolver, manufactured by either Smith & Wesson, Ruger, or Taurus. But, a 10 mm/.40 Smith & Wesson caliber triple copper jacketed bullet, fired from a 10 mm semi-automatic gun made by Smith & Wesson or Irwindale, is what caused the fatal wound.

Tina's credit cards and checkbook were found in late November 1996 behind the rear fence of the Eastern Shore Concrete Company in Middletown, Delaware. The police searched the area and discovered her pocketbook fifteen feet away from the fence and her telephone calling card just inside the fence. But, the discovery of the purse and its contents at the concrete plant did not lead to any suspects.

Swan and Norcross both worked at the Eastern Shore Concrete Company at the time of the murder. On October 20, 1996, about a month before the murder, Norcross' former roommate reported the theft of two handguns from his residence: a .357 caliber Smith & Wesson revolver and a .40 caliber black Smith & Wesson semi-automatic handgun. Around the same time, during the fall of 1996, another employee of the concrete plant named Matthew Howell took work breaks with Swan and Norcross. Howell later testified that a few weeks before the murder, Norcross asked Howell whether he wanted to join Norcross and Swan in a robbery. Howell declined.

About a week later, Norcross told Howell that he drove a red sports car to a person's house located on a dark road and fired a shot at a glass patio door around the back of the house. He stated that he wore camouflage clothing and a mask that covered everything but his eyes. When he entered the house, a man came up to him and fell to his knees, grabbing hold of Norcross. Norcross put the gun to the side of man's head and pulled the trigger and the man “fell like a bag of potatoes.” Norcross told Howell that Swan was hit in the shoulder either by the homeowner or in a crossfire. Norcross also told Howell that he had earlier robbed an armory in Middletown and stole fatigues and ration packs. He also told Howell that he grabbed a pocketbook from this house and threw it in the woods behind the concrete plant. Norcross then, in the presence of Howell, disposed of what appeared to be a checkbook by dropping it into a concrete product that was being poured. Finally, Norcross told Howell that he threw the guns into the Chesapeake and Delaware Canal and burned the clothing in a barrel. Norcross told all this to Howell because he claimed not to trust Swan and wanted someone to know what happened. Howell did not report this information to the police because Norcross threatened to kill him if he did.

Norcross told Howell this information one day after the incident occurred. Within a day or so after this conversation, Howell observed that Swan had injured his left shoulder and wore a bloodstained bandage. In December of 1996, Howell, Swan, and Norcross were laid off from the concrete plant.

During his employment at the concrete plant, Norcross dated Gina Ruberto. She observed Norcross with a black handgun that had to be clicked back to operate. Ruberto also testified to observing a big green duffel bag in Norcross' bedroom. Ruberto testified that one night Norcross was upset and showed her a newspaper article about a murder and robbery. Norcross started crying and told her about breaking into the back of a home occupied by a man and his wife while wearing camouflage clothing. Norcross stated that he took a pocketbook and disposed of it behind a fence at the concrete plant. Norcross also stated that he threw the weapon in the water and burned the clothing in the green duffel bag. Two weeks later, Ruberto saw Swan's left arm in a sling. A few months later, she saw Swan without a shirt and noticed a purplish bruise or scar on his shoulder. She asked Swan about the scar. Swan stated he hurt his shoulder while boxing.

In 1997, Norcross worked as a farmhand near Chesapeake City, Maryland. He married Bridget Phillips in April, and in June or July of that year, Norcross invited Swan to work at the farm. Swan moved into the same house with the couple, and one day Phillips overheard a loud conversation between the two men. They were laughing about an incident where Swan had been shot. Norcross then explained to his wife that he and Swan had planned to “rob” an empty home, but found it occupied. He told her that the victim fired a shot and died because he “tried to play hero.” Later, Phillips saw Swan without his shirt and observed a scar on his left shoulder. Norcross pointed to the scar and said that scar resulted from a gunshot. Swan responded by sticking his finger in the scar and saying: “Yes, and the bullet is still in there.” Norcross also told Phillips that they would never be caught because they had worn masks.

Norcross and Phillips separated in December 1997. Two years later she contacted the Delaware State Police. The police arrested Norcross on February 9, 2000, and he gave a statement the following day. Norcross admitted that he was present during the incident, but in this version of the story, said that Swan killed Warren. Norcross claimed that Swan started shooting, but that Norcross' gun would not fire. Swan allegedly grabbed Norcross' gun, cleared it, and then used it...