Zebroski v. State, 482,2001.

• Court: United States State Supreme Court of Delaware
• Writing for the Court: STEELE, Justice
• Citation: 822 A.2d 1038
• Parties: Craig ZEBROSKI, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Docket Number: No. 482,2001.,482,2001.
• Decision Date: 14 May 2003

822 A.2d 1038

Craig ZEBROSKI, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee

No. 482,2001.

Supreme Court of Delaware.

Submitted: October 8, 2002.

Decided: May 14, 2003.

Kevin J. O'Connell and Jerome M. Capone, Wilmington, for appellant.

Thomas E. Brown of the Department of Justice, Wilmington, for appellee.

Before VEASEY, Chief Justice, HOLLAND, STEELE, Justices and WALSH¹ and HARTNETT,¹ Retired Justices.

822 A.2d 1041

STEELE, Justice

Craig Zebroski appeals the judgment of the Superior Court denying his Motion for Postconviction Relief from his 1997 conviction for the murder of Joseph Hammond during a gas station robbery.² Zebroski

822 A.2d 1042

claims four errors in this appeal: (i) trial counsel's failure to advocate a more expansive voir dire amounted to ineffective assistance of counsel; (ii) trial counsel's failure to investigate competently and present a case for mitigation during the penalty phase of his trial amounted to ineffective assistance of counsel; (iii) appellate counsel's failure to present a "lingering doubt" argument amounted to ineffective assistance of counsel; and (iv) Delaware's statutory scheme for the imposition of the death penalty violates the Due Process Clause of the United States Constitution. Because Zebroski's arguments are without merit, we AFFIRM

I.

The events leading to the present appeal are recited in this Court's decision upholding Zebroski's convictions on direct appeal.³ In summary, on May 1, 1996, a grand jury indicted Zebroski for various charges, including two counts of murder in the first degree.⁴ At trial, Zebroski claimed that he accidentally shot Joseph Hammond between the eyes. According to Zebroski, immediately before he fired the gun, his codefendant punched Hammond in the face. Zebroski testified that the punch startled him, causing him to flinch and accidentally pull the trigger. The State contended, however, that he intended to shoot Hammond. In support of this position, the prosecution presented testimony from a Bureau of Alcohol, Tobacco, and Firearms' examiner that it required 12½ pounds pressure on the trigger for the gun to fire.

By contrast, the penalty hearing centered on Zebroski's behavior after the shooting and his poor record, compared against his youth, his substance abuse and

822 A.2d 1043

the adverse circumstances surrounding Zebroski's childhood

II

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. 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."⁵ Questions of law are reviewed de novo.⁶

To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy a two-pronged test: (1) that trial (or appellate) counsel's actions fell below an objective standard of reasonableness and (2) there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the trial (or appeal) would have been different.⁷ Mere allegations of ineffectiveness will not suffice. A defendant must make specific allegations of actual prejudice and substantiate them.⁸ Moreover, any "review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable."⁹

III

Zebroski's claims that trial counsel provided constitutionally deficient, ineffective representation falls into four categories. First, trial counsel failed to request an expansive, open-ended voir dire of prospective jurors.

Second, Zebroski asserts that trial counsel's failure to investigate properly and present a mitigation case in the penalty phase unfairly prejudiced him. Zebroski claims there are several reasons that "powerful evidence" was never placed before the jury and the court.¹⁰

Third, "in view of [trial counsel's] already heavy caseload, including other capital cases, it was inappropriate for trial counsel to handle Zebroski's capital murder defense without the assistance of other counsel."¹¹ Zebroski contends trial counsel lacked the ability to provide the day-to-day oversight and guidance necessary for the presentation of mitigation evidence in the penalty phase.

Fourth, Zebroski claims that the information gathering process for mitigation evidence began far too late for Zebroski to have received a fair penalty hearing. According to Zebroski, this delay could have resulted simply from trial counsel handling both stages of the proceedings alone, but regardless, the delay prejudiced him because it resulted in a failure to present appropriate counselors, teachers and other professionals as witnesses at trial. If not for this delay in preparation, Zebroski asserts that he could have presented more detailed testimony concerning his horrific childhood and the effects of PCP (Phencyclidine) on the issues of premeditation and criminal intent.

822 A.2d 1044

Finally, Zebroski contends that the trial judge's analysis in his postconviction opinion dealt with each allegation of ineffectiveness piecemeal. Instead of a piecemeal analysis, Zebroski argues that an ineffective assistance of counsel claim here required an analysis focused on the totality of errors and their cumulative impact on the presentation at the penalty hearing.

A. Failure to Request Expansive Voir Dire.

Zebroski argues initially that trial counsel failed to meet constitutional standards because he did not request a more expansive jury voir dire. Zebroski cites jury expert Dr. Valerie P. Hans' evidentiary hearing testimony to support his claim. Dr. Hans testified that she reviewed the voir dire and reached several conclusions. First, the jurors failed to understand the important concepts of aggravating and mitigating circumstances as well as the definition of what constitutes first degree murder. Second, the context material provided by the Superior Court was at best confusing and at worst misleading. Finally, the Court's wording of the death and life qualifying questions rarely reveal the "true feelings" of the potential jurors because the questions are "close ended" and suggest a socially desirable answer.

The primary purpose of voir dire examination is to elicit prospective jurors' bias or prejudice.¹² The goal is to secure for the defendant and the State impartial jury members who will be able to decide the case on the basis of the evidence presented at trial and who will follow the court's instructions on the law.¹³ The standard for excluding a juror because of the juror's views on capital punishment is whether the views would prevent or substantially impair the performance of the juror's duties in accordance with the jury instructions and oath.¹⁴ "A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do" and is not qualified to sit on the jury.¹⁵ Although open-ended voir dire questions may be preferable, they are not constitutionally required.¹⁶

Here, the trial judge first addressed the venire as a whole and then conducted an individualized voir dire with each prospective juror. The trial judge also took into account information contained on the jury questionnaires. In addition, the trial judge asked specific death and life qualifying questions:

Do you believe that anyone convicted of murder in the first degree should automatically be given the death penalty regardless of the presence of any mitigating circumstances and regardless of the Court's instructions on the law?

If you found the defendant guilty of murder in the first degree, would you automatically vote in favor of a sentence

822 A.2d 1045

of death, irrespective of the facts or Court's instructions of law?¹⁷

Counsel for each party observed the process, and out of the presence of the particular juror being interviewed, was permitted to suggest additional lines of inquiry. The trial judge noted:

Careful review of the entire jury selection shows considerable back-and-forth between the court and counsel and between the court and the prospective jurors. Overall, the process was unhurried and almost collaborative. Time and again, prospective jurors asked questions and voiced concerns. In several instances, several jurors spoke up after they were seated. This highlights the fact that prospective jurors understood that they were involved in something complicated and important.¹⁸

Our review of the record leads us to conclude that the jury selection voir dire was adequate for the trial judge to determine whether each prospective juror would be impartial. In addition, this Court has consistently held that although open-ended questions may be preferable, they are not constitutionally required. This case does require that we readdress that issue because here we do not face a situation where the trial judge refused counsel's request for an open-ended voir dire. Rather, Zebroski asserts his trial counsel provided ineffective assistance by not requesting an open-ended voir dire. If our precedent has specifically stated that open-ended voir dire is not constitutionally required, we cannot reasonably find Zebroski's counsel ineffective for not requesting an open-ended voir dire examination.

B. A Single Defense Counsel Constitutes Ineffective Assistance Per Se.

Zebroski claims "it was inappropriate for [defense counsel] to handle Zebroski's capital defense without the assistance of other counsel."¹⁹ The Superior Court judge, in his Opinion and Order denying Zebroski's Motion for Postconviction Relief, determined that Zebroski's trial counsel was very experienced in representing capital murder defendants with and without co-counsel. "Zebroski's trial attorney is among the most seasoned criminal litigators in Delaware. Since he started practicing law in 1972, trial counsel...