dissenting:
I.
Although the right to allocution has been recognized in Delaware since colonial times, the rule announced by the majority is the first to set forth its parameters. We agree with the majority that in the allocution a defendant may discuss or argue facts in evidence without being subject to cross-examination. In addition, the majority suggests that a defendant may present new evidence during allocution if the defendant is sworn and subject to cross-examination. Shelton, however, did not have the opportunity to give an allocution under these standards. The Superior Court’s instruction that Shelton could not “discuss the events of January 11 and 12, 1992,” as the majority recognizes, was “overbroad” and “erroneous.” Nonetheless, the majority finds no prejudicial error because it decides that Shelton acquiesced in the improper limitation on his right of allocution.
We do not agree with the majority’s restrictions on allocution or its finding of lack of prejudice. A defendant facing the death penalty should be allowed to plead for his life in whatever way he chooses, restricted only by issues of undue length, relevance, and courtroom demeanor.236 The United States Supreme Court has not yet resolved the split in federal authority on the question of whether allocution is a right protected by the United States Constitution, and the majority in this opinion holds that the right to allocution is not protected by either the Federal or Delaware Constitution. As will be discussed, we believe that the better view is that allocution is so fundamental to a fair trial in a capital case that deprivation of that right violates both State and Federal Constitutional due process.237
We are not persuaded that the judge and jury need to be protected from the unsworn testimony of a convicted defendant. We are not convinced that it would be unfair to the State if a defendant, who did not testify in the guilt phase, were to offer an explanation for his conduct during allocution. Such a limitation seriously restricts a defendant’s ability to express himself at the most crucial time in his life.238 The restriction is unwarranted because it is based on an unfounded fear that a defendant who is not subject to cross-examination at the penalty phase will be able to deceive both the jury and the judge if allowed to deny guilt or otherwise explain his conduct as part of a plea for leniency. There is no empirical support for this concern. To the contrary, the results in other Delaware murder trials indicate that such self-serving statements have been unsuc*512cessful. In other capital cases in Delaware, different trial judges have allowed defendants to plead for mercy by denying responsibility for the crime.239 Yet the jury recommended, and the court imposed, the death penalty.240 Additionally, the State has the right to present evidence to rebut any statements made by a defendant during allocution.241
The limitation on allocution imposed by the majority also presents severe practical problems. While the majority permits a defendant to argue “from the facts already in evidence” that the jury made a mistake in finding him guilty, if the defendant did not testify he must choose his words very carefully. It would appear to be permissible for the defendant to say, “You shouldn’t have found me guilty” but impermissible for the defendant to say, “I didn’t do it” or “I didn’t mean to do it.” It is sometimes difficult for attorneys, trained in the law, to precisely limit their arguments to those subjects that are permitted by the court. A defendant with a limited education, facing the death penalty, would find it almost impossible to draw these fine linguistic distinctions. The majority’s formulation clearly and impermissibly prevents a defendant from expressing his constitutional right to fully state the reasons why he believes he should not be executed.
II.
The right to speak at the allocution is an ancient fundamental common law right which has been recognized in Delaware and elsewhere for centuries.242 It has particularly serious ramifications in the second phase of a first degree murder trial where the sole issue is the life or death of the defendant.243 We find the majority’s citation of the order in DeShields v. State unpersuasive.244 The holding in DeShields was limited to whether the defendant could waive his right to allocution and anything else in the Order is dicta.245 DeShields cited Hill v. United States that was a non-capital case and was limited to “[t]he failure of a trial court to ask a defendant represented by an attorney whether he [had] anything to say before sentence *513[was] imposed.” 246 Furthermore, in Hooks v. State, this Court found:
The norms governing sentencing proceedings are well settled: thus, (1) a defendant has a right to be present at the imposition of final sentence; (2) he has a right to counsel at that time; (3) the Trial Judge is required to address a defendant personally at that time and to ask him if he wishes to make a statement in his own behalf and/or to present any information in mitigation of punishment. Those norms, whether derived from the common law or constitutionally based, are followed in our practice and are codified in Superior Court Criminal Rules 43 and 32(a). We have no doubt that the imposition of sentence is a critical stage in the proceeding and, for that reason, both defendant and counsel are required to be present.247
This Court has recognized that, because of the critical importance of sentencing (even in a non-capital case), it would violate constitutional due process for a trial court to decide the appropriate sentence to be imposed without the judge hearing all mitigating information:
[The trial judge’s closed mind] was a violation of the intent, purpose and spirit of Criminal Rule 32(a) which requires, by necessary implication, that before finally reaching a decision as to sentence, the sentencing judge have an open mind at least to the extent of receiving all information bearing on the question of mitigation. Cf. Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670.
We think it not improper for a sentencing judge to mount the bench with some preconceived notion about the proper sentence to be imposed, but we think it quite improper for him at that point to have closed his mind upon the subject. When such is the case, due process is lacking and the sentence must be struck and the cause remanded for the imposition of sentence in the proper fashion.248
Despite the provisions of Superior Court Criminal Rule 32(a)(1),249 the trial court here, prior to the allocution, stated to Shelton’s counsel: “He can’t get into — if he’s speaking in allocution, he cannot discuss the events of January 11 and 12, 1992.”250 Later the trial court, in addressing Shelton, who was then pro se, stated:
Whether you want to — you can’t argue about the facts. You can talk about yourself, your background, your upbringing, your education, your folks at home, any alcohol abuse problems, things like that. You can talk about all those things as much as you want. You just can’t talk about the facts surrounding the murder. Do you understand that?251
Finally, right before Shelton began his allocution, the trial court again reminded him:
You do understand the basic ground rules here, speaking on your own behalf?
You are, in speaking in that manner, not in a position where you can be cross-examined, so you can’t get into the facts *514of the offense, as such, or other general matters of that nature.252
The modern purpose of allocution is to provide a defendant with the opportunity to refute or explain information previously presented and to express remorse and plead for leniency.253 The trial judge’s limiting instructions to Shelton necessarily had a chilling effect that prevented Shelton from exercising his fundamental right to reasonably express himself . and present “any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”254
III.
We do not understand how Shelton can be deemed to have acquiesced in, and therefore suffered no prejudice from, the erroneous allocution instructions repeatedly given to him and his attorney. The record clearly demonstrates that Shelton was confused and upset after the guilty verdict. Facing death, he three times changed his position on how he wanted to handle the penalty phase. First, Shelton told the court he wanted to represent himself because his attorney opposes the death penalty:
Well, I did a little research on a few cases that you put in front of the Court or put out there. And it states in State versus Deere that it would be, for the defense counsel to keep representing me, it would be an ethical conflict to my wishes, meaning that my attorney opposes the death penalty, and if it’s imposed or since we’re going through, my attorney opposes it, and if the jury comes back with the death penalty, you know, I just feel that it’s unethical for him to represent me since I am facing the death penalty now. That’s my opinion and that’s how I feel.255
At that point, Shelton also intended to present no mitigating evidence because he believed the jury had already heard all the evidence and because he did not want to drag his family through the trial anymore.
After a recess, Shelton’s attorney advised the court that Shelton had changed his position:
My client’s position has changed somewhat, your Honor. He wishes first to continue to represent himself at the penalty phase hearing. Secondly, he’s asked that I call and have available to him those certain witnesses that I had mentioned to him who would be available for possible testimony as to mitigation. He will decide which of those he will call, if any of them, when his turn comes, and that will be determined on what goes before him.
Secondly, he asked that in my position of assisting him, that I be able to give closing argument to the jury and argue my position on — against the death penalty because he feels that I can do that better than he could. And he reserves, your Honor, most particularly and first and most importantly his right to allocution. He has indicated to me that he’s prepared to take the stand and make a statement to the jury, with or without having called witnesses, and that he understands that he has a right to allocution without cross-examination.256
Following a weekend recess, Shelton changed plans for a third time. He recon*515sidered his decision to represent himself in light of the trial judge’s comments to the effect that a person who represents himself has a fool for a client. As the penalty-phase was about to begin, Shelton requested that his attorney represent him, with the understanding that Shelton would have the final say on matters such as who would be called as mitigating witnesses and how they would be questioned. At that point, Shelton planned to have only one mitigating witness who would be asked very few questions.257 In the end, Shelton’s attorney called three mitigating witnesses and questioned them much more thoroughly than would have been expected based on the earlier representations to the court.
Throughout these strategic developments, two things remained constant: Shelton wanted to convince the jury and judge that he should be sentenced to life, instead of death, and he wanted to speak in allocution. The majority ignores the fact that Shelton had a right to change his strategy and finds acquiescence from the simple fact that both Shelton and his attorney said they understood what the judge was stating when he improperly limited the scope of allocution. Certainly, Shelton was in no position to argue the law, and his attorney inexplicably failed to protect his client by objecting to the improper limitation on what Shelton could say in allocution. Their responses do not demonstrate acquiescence, only obedience to the dictates of the judge. The three options given to Shelton during the penalty phase were: (1) to remain silent; (2) to testify broadly under oath subject to cross-examination; and (3) to alloeute within the limited parameters of that right. Shelton therefore faced an impossible choice because his right to allocution was, as the majority concedes, impermissibly limited by the judge. Nor would an expanded allocution have been inconsistent with Shelton’s strategy of not arguing the facts and not presenting mitigating evidence for fear it would offend the jury and seal his fate. Shelton did the best he could under the imposed limitations in presenting mitigating evidence after his strategy changed. If he had been allowed to speak freely about the facts surrounding the murder, Shelton’s allocution undoubtedly would have been different.
Finally, the majority focuses on Shelton, while acting pro se, not having made a sophisticated objection to the allocution limitations and thus not having suffered any prejudice. We cannot accept such an approach in a capital case. This Court cannot predict how the jury or judge would have reacted to the “halting eloquence”258 of an unrestricted allocution statement, no matter how it might have differed from the limited one that Shelton gave. This is not a question of admissibility of evidence. It is a question of whether Shelton fives or is executed,259 and a convicted murderer’s plea is critical to the jury’s recommendation as to the penalty. Denying Shelton the reasonable right to express himself as he desired was clearly prejudicial and unconstitutional.
Further, the prosecutor exacerbated the prejudice to Shelton when he commented on Shelton’s lack of remorse.260 Clearly, it was difficult or impossible for Shelton to have appeared to be remorseful when he could not even “discuss the events of January 11 and 12,1992.”
*516We would reverse as to the penalty imposed and remand for a new penalty hearing.
We, therefore, respectfully DISSENT.
APPENDIX A
Selected Portions from Pages 4-94 of Transcript of Penalty Phase Proceedings
February 26, 1993 Jerome O. Herlihy, J.
THE COURT: Mr. Steven Shelton, .... Is it still your desire to represent yourself in the penalty phase and not have Mr. Willard be your attorney in that penalty phase?
STEVEN SHELTON: Yes.
THE COURT: You hesitated slightly before answering yes.... Can you well me why?
STEVEN SHELTON: Well, I did a little research on a few cases that you put in front of the Court or put out there. And it states in State versus Deere that it would be, for defense counsel to keep representing me, it would be an ethical conflict to my wishes, meaning that an attorney opposes the death penalty, and if it’s imposed or since we’re going through, my attorney opposes it, and if the jury comes back with the death penalty, you know, I just feel that it’s unethical for him to represent me since I am facing the death penalty now. That’s my opinion, and that’s how I feel.1
ísí íjí % ‡ ❖ ❖
THE COURT: You are not asking for the death penalty, correct?
STEVEN SHELTON: No, I’m not.
THE COURT: Tell me again why you think, since you are not asking for the death penalty, why you think Mr. Willard should not do anything on your behalf and should not represent you, as best you can in your own words, and take your time.
STEVEN SHELTON: Right. I feel that I was convicted wrongly from the evidence that was presented against me. The evidence against me, I would like for it to be presented to the jury without any mitigating evidence in my behalf, and have them come back with the guilt — with either a verdict either death or life in prison.
THE COURT: Excuse me for one moment. What you are saying is that you— are you saying that you would like to take your chances with this jury — I’ll put it in other words and just let me see if I understand what your thoughts are. If I’m wrong, tell me I’m wrong. Are you saying that you would like to take your chances with this jury, first because they’ve already heard all the evidence as far as the guilt phase — correct?
STEVEN SHELTON: True.
THE COURT: —and there will be no other evidence regarding that in most respects, and you want to have them make up their minds and make their recommendations to me, and also, you want me to make up my mind based in effect on the evidence during the guilt phase of the trial? Is that correct?
STEVEN SHELTON: That is correct.
THE COURT: Why is it that you think that not presenting mitigating evidence will be helpful to you?
STEVEN SHELTON: As I stated earlier, the day before yesterday, I don’t want to drag my family through this anymore. I have talked to my family, and we have all agreed that I am a competent adult and I know what I am doing, and this is my decision.2
THE COURT: Do you think that your decision to ask Mr. Willard to step aside or me have him step aside and also not present any evidence—
*517STEVEN SHELTON: Mitigating evidence?
THE COURT: Mitigating evidence, evidence to help you get a life sentence.
STEVEN SHELTON: Right.3
STEVEN SHELTON: I feel that I shouldn’t bring any mitigating evidence in my behalf. That’s my decision, and I’m going to stand with it.
THE COURT: Other than your concern for your family, why?
STEVEN SHELTON: That’s just my personal decision, and that’s as far as I’m going to go with that.4
THE COURT: [To Mr. Willard, Steven Shelton’s counsel]. I understand that you feel, in light of Mr. Shelton’s expressed wishes not to have you represent him and not to put anything on, you now feel an ethical obligation to go along with his wishes?
MR. WILLARD: Correct, your Honor, so we’re clear on that.
Now, your Honor, you asked Mr. Shelton about his family and their wishes. I have spoken with his mother, two or three of his sisters, extensively, and all of them have stated to me that it tears their heart to understand what could happen to Steve and that he could get a death sentence. However, they absolutely respect his wishes, and they’re in agreement with it because they have expressed to me that it is, after all, his life.5
I have advised them on my first meeting that it is a possibility that your Honor could order me as an officer of this Court to present mitigating evidence, and that I would therefore call them to discuss with me the things that we spoke of over many, many hours in my office about his childhood and his upbringing and the kind of things that I believe would be mitigating in his behalf. They have expressed to me the thought that they perhaps would not honor my wishes and come in voluntarily, and that if they were subpoenaed, they perhaps would disregard a subpoena because they feel that their first obligation is to Steve and to respect his wishes.6
Now, your Honor, one other point: .... Steve said to me at one point, my feeling is that this was such a grievous, horrible murder, that there is nothing I could put in front of this jury that would make them have enough mercy on be to give me life rather than death, and in fact, begging for mercy in front of this jury may have an adverse effect. They may feel that because, after being found guilty of this crime, if I come in here and plead for mercy, that may turn them off, and make them want to give me death. They may think less of me as a man if I plead for mercy.
So as a strategic matter, there is the potential that he would be better off in getting a life sentence by saying to the jury, I have nothing to say. I will not ask — I will not put on mitigating circumstances, and I will allow you to make your decision on the evidence the State has put forward, and that because — that a jury may very well look at that and say, here is a man who has been found guilty and is not going to plead for mercy, and we respect him for that.
And then they may very well find that because it — at least there’s some evidence that would indicate that he was not a real principal player in this that we tried to develop, that if anything, he was present or maybe initially involved in a small amount, but not as much as the other two, *518that they may very well say, because of his involvement being somewhat lesser than the others, and because he didn’t plead for mercy, we will respect him for that and give him a life sentence instead of the death sentence. That was the discussion that Steve and I have had. I hope I’m not saying something he doesn’t want me to say because when you asked him that question, he didn’t respond that way.
STEVEN SHELTON: That’s pretty close.7
H: ‡ Hi :•« Hi %
STEVEN SHELTON: That was pretty close. I don’t have the total recall of the exact conversation, but that’s pretty close to our discussion.
THE COURT: Do you want to talk to Mr. Willard any more about your current thinking to represent yourself and present no mitigating evidence whatsoever? I’ll give you that opportunity, if you would like it.
STEVEN SHELTON: Yes. Yes, I would. I would like to further discuss it with Mr. Willard.8
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MR. WILLARD: [After consultation]. My client’s position has changed somewhat, your Honor. He wishes first to continue to represent himself at the penalty phase hearing. Secondly, he’s asked that I call and have available to him those certain witnesses that I had mentioned to him who would be available for possible testimony as to mitigation. He will decide which of those he will call, if any of them, when his turn comes, and that will be determined on what goes before him.
Secondly, he asked that in my position of assisting him, that I be able to give closing argument to the jury and argue my position on — against the death penalty because he feels that I can do that better then he could. And he reserves, your Honor, most particularly and first and most importantly his right to allocution. He has indicated to me that he’s prepared to take the stand and make a statement to the jury, with or without having called witnesses, and that he understands that he has a right to allocution without cross examination.
THE COURT: Well, if he takes the stand, he’s not speaking in allocution as such. That will be a separate matter during which he cannot talk about the events of January 11,12,1992.
MR. WILLARD: Excuse me, your Hon- or.
THE COURT: He can’t get into — if he’s speaking in allocution, he cannot discuss the events of January 11 and 12, 1992.9
Hi H< H* Hi Hi Hi
MR. WILLARD: Your Honor, he understands that. He can’t talk about any factual evidence. What he would intend to address them on is his life or his feelings about this matter, and that he believes and understands that if he does that and does not talk about any factual circumstances, that he can do that without cross examination.10
* ^ ❖ Hi Hi Hi
THE COURT: [To Steven Shelton], All I am saying is as far as your decision to want to represent yourself and present no evidence on behalf of yourself, do you understand that is probably a not smart decision?
STEVEN SHELTON: In whose point of view? That’s not my point of view.
THE COURT: Do you understand that I may think it’s not a smart decision on your part?
STEVEN SHELTON: Yes, I do.
*519THE COURT: Do you understand that it is always more dangerous to represent one’s self?
STEVEN SHELTON: I understand that.
THE COURT: I am going to ask this, even though I asked you awhile ago. If I permit you to represent yourself and you choose on your own not to present any mitigating evidence, do you understand that that decision, my decision and your decision are ones that you make be stuck with on appeal, on any post-conviction remedy or at any other time?
STEVEN SHELTON: Yes, I do.
THE COURT: When I say stuck with it, you may not be able to come back — you will not be able to come back or may not be able to come back and say the Judge shouldn’t have allowed me to do that. Do you understand?
STEVEN SHELTON: Yes.
THE COURT: Do you understand that?
STEVEN SHELTON: I understand that. My decision is based on the either life or death situation. I hold true to that.
THE COURT: Do you understand that as far as presenting reasons to the jury why you should get a recommendation of a life sentence and why I should impose a life sentence, that Mr. Willard, no disrespect to you, Mr. Willard as a trained, very experienced and very competent lawyer who has had many cases in this court, would be better able to present that to the jury and to me than you would?
STEVEN SHELTON: Yes.
THE COURT: And you accept that risk even though it means the death penalty?
STEVEN SHELTON: Yes, I do.
THE COURT: Or the possibility of the death penalty.
STEVEN SHELTON: That’s correct.
THE COURT: And you understand that Mr. Willard, as I was trying to say not too well a moment ago, is a lawyer and it’s his job to believe in your case and to present the case as a professional, and he doesn’t have — he doesn’t become emotional like the person- — like yourself. Do your understand that?
STEVEN SHELTON: Yes, I understand that.11
THE COURT: As a lawyer, as a professional, since he’s not representing himself, but since he’s here to represent you to the best extent he can, he is better able to present the evidence on your behalf or point out to the jury any weaknesses in the State’s case. Do you understand that?
STEVEN SHELTON: Yes.12
THE COURT: All right, Mr. Shelton, I am going to grant your request, not the amended one. I will allow you to represent yourself.... 13 I am fully satisfied that you understand the risks of what you are doing, that you fully understand that by representing yourself, you are not doing the best thing, rather than having your lawyer representing you, even though you may believe you may be able to get your family members to come in and say things, if you ask them, rather than Mr. Willard.
STEVEN SHELTON: Yes.
THE COURT: But that still — I understand and appreciate that you understand and appreciate that that still could hurt you in the presence of the jury, correct?
STEVEN SHELTON: Yes, I do.
THE COURT: [YJou will be able to freely consult with him as stand-by counsel when we resume these proceedings next week about any matter ....
*520You are — you have an eleventh grade education, 27 years old. You are not — you have — and I don’t say this disparagingly, but it’s part of the decision I have to make in terms of whether your decision to do this is knowing, intelligent and voluntary. You are experienced in the criminal justice system.... And you have, after two days of further talking to your family about it and Mr. Willard, you have repeated the decision, except with the one thing about Mr. Willard being able to speak to the jury on your behalf, which I cannot allow.... As I said, however, that does not prohibit you from first consulting at any time with Mr. Willard about what you might want to do, any questions you might want to ask, or about any other matter or anything else during the course of these proceedings. Do you understand that?
STEVEN SHELTON: Yes.
THE COURT: Further, it does not prevent you in any way from speaking to the jury in allocution and to me. Do you understand that?
STEVEN SHELTON: Allocution, I don’t—
THE COURT: Allocution is a very technical word, speaking to the jury on your own behalf. I apologize for using the word that [even] most lawyers don’t know. Al-locution is a very legalistic way for asking the sentencing authority, whether it’s a jury or jury, to give you mercy, spare your life in this case, and sentence you to life. That’s what it really means, to explain your humanity, you know.
STEVEN SHELTON: I understand.
THE COURT: Whether you want to— you can’t argue about the facts. You can talk about yourself, your background, your upbringing, your education, your folks at home, any alcohol abuse problems, things like that. You can talk about all those things as much as you want. You just can’t talk about the facts surrounding the murder. Do you understand that?
STEVEN SHELTON: Yes.
THE COURT: And I find that you do understand that, and that that is part of the decision that you have made, that you think that you might do that. You understand that you have a right to do that to me and to the jury.
STEVEN SHELTON: Yes, I do.14
Allocution Statement of Steven Shelton Pages 62-63
Transcript of Penalty Phase Proceedings
March 3,1993 Jerome O. Herlihy, J.
# ‡ H* :j:
STEVEN SHELTON: Ladies and gentlemen of the jury, I stand before you not to plead for my life. I feel that’s wrong an improper and basically disrespectful to the victim’s family and to mine.
The State has painted a picture, and that picture is not very pretty, pertaining to me and my co-defendants. And I would just like to present to the jury a different side or a different meaning to Steven Shelton.
The State has pictured me as being a monster, as being a rapist, as being a violent individual, but as you heard from my family, that’s not so. The State only presents one side of the picture. There’s two sides to every story. And the State just presents the negative side.
The jury has found me guilty of these allegations, and now it’s the jury’s turn to render a verdict. And that verdict is either life in jail or death. Again, I’m not here to plead for my life, but just ask the jury to be fair in their decisions.
That’s all I have to say.15
*521APPENDIX B
Memorandum Opinion at 88-94 December 22,1997 Jerome O. Herlihy, J.
Allocution
Steven argues that this Court impermis-sibly restricted his right to speak in allocution. ...
These claims arise initially out of a colloquy involving this Court, Steven’s trial counsel and Steven. As noted earlier,74 Steven initially wanted to represent himself during the penalty hearing. After several days, he changed his mind and wanted trial counsel to remain, but with certain conditions.
When the Court was discussing with trial counsel and Steven his initial decision to represent himself, his counsel indicated that Steven told him the killing was so horrible, nothing he could tell the jury would engender enough mercy to recommend life over death. Steven told his lawyer that begging for mercy would have an adverse [effect]; that is, make it more likely death would be recommended. His counsel and Steven discussed Steven’s thought that if he said nothing, Steven would have a better chance of a life recommendation.
Trial counsel went on to say that because there was some evidence that Steven was not as culpable as Nelson and Outten, the jury would find it more appropriate to recommend life, particularly if he did not plead for mercy. All of this was related to the Court by Steven’s counsel as Steven’s thinking. Steven directly acknowledged to the Court that this was his thinking.
Later in the same proceeding, trial counsel informed the Court that Steven still wanted to represent himself but wanted certain assistance from counsel. As part of that self-representation, trial counsel said Steven reserved the right to speak in allocution. Counsel said Steven was prepared to take the stand and that he had a right to speak without cross-examination.
This latter comment prompted the Court to say that if Steven took the stand, he is not speaking in allocution. But it was noted that if he spoke in allocution, he was told he could not discuss the events surrounding the murder.75 Trial counsel replied that Steven understood that limitation. Counsel said Steven would speak of his life, his feelings about this matter and that he would do so without discussing the circumstances of the murder. All of this, counsel said, would be without cross-examination. Even later in the same proceeding, the Court reviewed with Steven directly that in allocution he could not present facts regarding the murder.
The procedure for a penalty hearing is set up by statute:
At the hearing, evidence may be presented as to any matter that the Court deems relevant and admissible to the penalty to be imposed.76
This Court readily acknowledges (then as now) the admonition of Lockett v. Ohio77 and Eddings v. Oklahoma78 that there can be [no] [amended by letter] restrictions placed on the presentation of mitigating evidence. This Court’s instruction in no way placed any restrictions on the mitigating evidence Steven could present.
Steven clearly understood what was going on and what he wanted to do. That is, he clearly realized the risk to him of cross-*522examination and wanted to avoid having to undergo it. There is a strong suggestion, however, that by way of “allocution,” Steven wanted to present his version of the events and to do so without the State being able to ask him questions. Yet, as his lawyer acknowledged, there was “some” evidence during the guilt phase from which he could argue that his involvement was less than Nelson and Outten. There never was a restriction of any kind in arguing from that which was already in evidence. The Court concurs there was evidence on which such an argument could have been made. Such an argument would not have violated the Court’s parameters on speaking in allocution.
The Court cannot agree with what appears to be the State’s argument on this claim. The State seems to argue that the provision in § 4209(c)(2) which enables defense counsel and the defendant to present argument covers the defendant’s right to speak in allocution.
The Delaware Supreme Court has never had to address that contention. Clearly, the statutory right of both counsel and the defendant to present argument avoids the flawed capital sentencing statutes which meant only one or the other could present argument.79 Further, allocution is not argument.80
Superior Court Criminal Rule 32(a)(1)(C) requires this Court to afford a defendant an opportunity to speak in allo-cution. Such a requirement has been recognized in decisional law.81 But this Court did not prevent Steven from speaking in allocution nor did it limit the information he could mention to the jury. As noted, there was no limitation on the mitigating evidence he could present.
In short, therefore, the Court did not err in placing parameters on the allocution Steven wanted or did make to the jury. Since there was no legal error, counsel did not breach any standard of professional conduct.
What Steven said to the jury was consistent with what his lawyer and he told the Court outside the jury’s presence was the manner he wanted to present his case during the penalty hearing. He felt he could not ask for mercy after the jury had found him guilty of a heinous murder. To do so, he acknowledged, would risk offending the jury and prompting a greater likelihood of a death sentence recommendation. Steven had indicated to his trial counsel and the Court that this would be his approach prior to the Court indicating the parameters of allocution. Thus, those parameters in no way affected his talk to the jury.
That observation is underscored by the lack of any indication of what he would have said, if no parameters existed. To put it another way, Steven cannot demonstrate actual prejudice. He does not say what he would have said nor does he show how that as-yet, unarticulated allocution would probably have caused more votes recommending a life sentence. Even in allocution, he could have properly referred to the trial evidence pointing to his lack of involvement and not violated the Court’s parameters.
The jury was fully aware of the defense he had vigorously undertaken, namely, his limited role. The jury, obviously, found against him on that defense. It heard evidence of threats and possible [subornation] of perjury. Better than most, perhaps, Steven fully appreciated the risk to him of challenging the jury’s verdict to its face and seeking to reinvoke a defense it had so clearly rejected.
*523Finally, Steven’s argument appears to be that, if the Court had not placed any limitation on his allocution, he would have told the jury he was uninvolved, was off in the bushes when Mannon was beaten and never hit him. He does not say now that is what he would have said so this claim rings a bit hollow. It rings hollow also because to say now he would have said that flies in the face of his decision not to beg for mercy or offend the jury by rear-guing its verdict.
In short, therefore, Steven cannot meet the prejudice test under Stñckland/Al-bury. Nor can he show that the proceeding was fundamentally unreliable or unfair or defective. Accordingly, this claim of ineffectiveness cannot stand.84
. See Dawson v. Delaware, 503 U.S. 159, 167, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992) ("We have held that a capital defendant is entitled to introduce any relevant mitigating evidence that he proffers in support of a sentence less than death.")
. See Dawson, 503 U.S. at 167, 112 S.Ct. 1093; Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); Jackson v. State, Del.Supr., 643 A.2d 1360, 1379 (1994) ("The Fifth Amendment privilege [against self-incrimination] applies both at trial and during a capital sentencing hearing. A person cannot be penalized for exercising his Fifth Amendment privilege.”) (citations omitted), cert. denied, 513 U.S. 1136, 115 S.Ct. 956, 130 L.Ed.2d 898 (1995); Osburn v. State, Del.Supr., 224 A.2d 52, 53 (1966) (recognizing that due process requires that a judge have an open mind as to the sentence to be imposed, at least to the extent of receiving all information bearing on the question of mitigation).
.See Dawson, 503 U.S. at 167, 112 S.Ct. 1093.
. See State v. Barrow, Del.Super., 1998 WL 733212 (1998); State v. Zebroski, Del.Super., 1997 WL 528287 (1997); State v. Ferguson, Del.Super., 1995 WL 413269.
. We point out the result in other capital cases to demonstrate that an unrestricted al-locution will not undermine the integrity of the trial. The fact that other defendants have been unable to avoid the death penalty does not mean that Shelton should not have been given the same opportunity.
. See Dawson, 503 U.S. at 167, 112 S.Ct. 1093 (“But just as the [capital] defendant has the right to introduce any sort of relevant mitigating evidence [in support of a sentence less than death], the State is entitled to rebut that evidence with proof of its own.”) (citations omitted).
. See Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); Ball v. United States, 140 U.S. 118, 129-30, 11 S.Ct. 761, 35 L.Ed. 377 (1891); Schwab v. Berggren, 143 U.S. 442, 446-47, 12 S.Ct. 525, 36 L.Ed. 218 (1892); United States v. Behrens, 375 U.S. 162, 165, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963) ("It is [at sentencing] that the right of the defendant to be afforded an opportunity to make a statement to the judge in his own behalf is of most importance. This right, ancient in the law, is recognized by Rule 32(a) of the Federal Criminal Rules, which requires the court to 'afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.' ”); Hooks v. State, Del.Supr., 429 A.2d 1312, 1313 (1981); Paul W. Barrett, Allocution, 9 Mo. L.Rev. 115 (1944); and cases cited in footnotes 103-106 of this opinion. Delaware has also adopted Rule 32(a).
. See Jackson v. State, 643 A.2d at 1374; Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ("The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence.”).
. DeShields v. State, Del.Supr., 633 A.2d 369 (1993) (ORDER).
. Id.
. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (emphasis added).
. Hooks v. State, Del.Supr., 429 A.2d 1312, 1313 (1981) (citations omitted) (footnote omitted).
. Osbum v. State, Del.Supr., 224 A.2d 52, 53 (1966) (emphasis added).
. Superior Court Criminal Rule 32(a)(1) provides: "Before imposing sentence, the court shall also — ... (c) Address the defendant personally and determine if the defendant wishes to make a statement and to present any information in mitigation of the sentence.”
. Tr. at 57 (Feb. 26, 1993) (emphasis added).
. Tr. at 93-94 (Feb. 26, 1993) (emphasis added).
. Tr. at 60 (Mar. 3, 1993) (emphasis added).
. See Thanos v. State, 330 Md. 77, 622 A.2d 727, 732 (1993) and cases cited in footnotes 113-121 of this opinion.
. Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) ("[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”) (footnotes omitted) (emphasis added).
. Tr. at 4-5 (Feb. 26, 1993).
. Id. at 55-56.
. See Tr. at 2-9 (Mar. 1, 1993).
. Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) ("The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”).
. " '[Djeath as a punishment is unique in its severity and irrevocability.’ Therefore, 'the Eighth Amendment requires increased reliability of the process by which capital punishment may be imposed.’ ” Jackson v. State, 643 A.2d at 1374 (citations omitted).
.See Jackson v. State, 643 A.2d at 1379-80 (cautioning against commenting on a defendant’s failure to testify as showing a lack of remorse).
. Tr. at 4-5 (Feb. 26, 1993).
. Tr. at 6-7 (Feb. 26, 1993).
. Tr. at 10 (Feb. 26, 1993).
. Tr. at 10-11 (Feb. 26, 1993).
. Tr. at 11-12 (Feb. 26, 1993).
. Tr. at 13 (Feb. 26, 1993).
. Tr. at 14-15 (Feb. 26, 1993).
. Tr. at 15-16 (Feb. 26, 1993).
. Tr. at 55-57 (Feb. 26, 1993).
. Tr. at 57 (Feb. 26, 1993).
. Tr. at 74-77 (Feb. 26,1993).
. Tr. at 77 (Feb. 26, 1993).
.Tr. at 88 (Feb. 26, 1993).
. Tr. at 90-94 (Feb. 26, 1993).
. Tr. at 62-63 (Mar. 3, 1993).
. [footnote omitted].
. This admonition is routinely given in single or multiple defendant capital cases under the circumstances.
. llDel.C.% 4209(c).
. 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
. 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).
. See Harris v. State, 306 Md. 344, 509 A.2d 120, 124 (1986).
. Id.
. See Hooks v. State, Del.Supr., 429 A.2d 1312, 1313-14 (1981); accord Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961).
. Grace [v. State, Del.Supr., 682 A.2d 626 (1996), Order at ¶ 7].