IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
)
STATE OF DELAWARE, )
)
v. ) Cr. I.D. No. 9904019326
)
LUIS G. CABRERA, JR., )
)
Defendant. )
)
Final submission: June 10, 2015
Decided: June 17, 2015
Revised: June 22, 2015
Upon Defendant’s Motion for Postconviction Relief
GRANTED in part; DENIED in part.
OPINION
Thomas C. Grimm, Esquire, Rodger D. Smith II, Esquire, Ethan H. Townsend,
Esquire, Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware, Attorneys
for Defendant.
Elizabeth R. McFarlan, Esquire, and Maria T. Knoll, Esquire, Department of
Justice, Wilmington, Delaware, Attorneys for the State of Delaware.
Rocanelli, J.
I. INTRODUCTION AND PROCEDURAL HISTORY
The bodies of Brandon Saunders and Vaughn Rowe were discovered in a
wooded area of Rockford Park in Wilmington, Delaware on January 21, 1996
(“Rockford Park Murders”). Nearly four years later, on December 6, 1999, Luis
Cabrera (“Cabrera”) and Luis Reyes (“Reyes”) were indicted as co-defendants for
the Rockford Park Murders.1 The State sought the death penalty for both Cabrera
and Reyes. Counsel was appointed for both defendants. 2 The trials of Cabrera and
Reyes were severed by the Trial Court.3
A. Rockford Park Trial and Direct Appeal
Cabrera was tried first (“Rockford Park Trial”), with jury selection starting
on January 9, 2001. Jury deliberations began on February 8, 2001, and the jury
returned a verdict on February 11, 2001, finding Cabrera guilty of two counts of
First Degree Murder, two counts of Conspiracy in the First Degree, and other
offenses.
The penalty phase began on February 13, 2001 and ended on February 15,
2001. The jury recommended that Cabrera receive the death sentence for each of
1
At the time they were indicted for the murders of Rowe and Saunders, Cabrera and Reyes were
serving sentences imposed for the January 1995 murder of Funador Otero. Cabrera was serving
a life sentence for Murder First Degree. Reyes was serving a 20-year sentence for Murder
Second Degree (Level 5 time suspended after 12 years for decreasing levels of community-based
supervision).
2
“Cabrera Trial Counsel” was John P. Deckers, Esquire and Anthony A. Figliola, Esquire.
Cabrera Trial Counsel also represented Cabrera on direct appeal.
3
The “Trial Court” references the presiding judge to whom this case was assigned until May
2013.
1
the Rockford Park Murders by a vote of 11–1. The Court postponed Cabrera’s
sentencing until the completion of Reyes’ trial for the Rockford Park Murders.
Reyes was convicted on October 19, 2001, and, on October 26, 2001, the jury
recommended that Reyes receive the death sentence for each of the Rockford Park
Murders by a vote of 9–3. By decision and Order dated March 14, 2002, the Trial
Court sentenced both Cabrera and Reyes to death.4
An automatic, direct appeal was filed with the Delaware Supreme Court. 5
While the direct appeal was pending, on July 9, 2002, Cabrera filed a motion for a
new trial based on claims of discovery of new evidence. The direct appeal was
stayed pending the Trial Court’s consideration of the motion for a new trial. On
December 19, 2002, the Trial Court held a hearing regarding the admissibility of
newly discovered evidence in support of Cabrera’s motion for a new trial. On
April 3, 2003, the Trial Court ruled that the newly discovered evidence was
inadmissible. Consequently, the Trial Court denied Cabrera’s motion for a new
trial.6 The Supreme Court lifted the stay on Cabrera’s direct appeal and, on
4
State v. Cabrera (Cabrera Sentencing), 2002 WL 484641, at *5–8 (Del. Super. Mar. 14, 2002).
5
See 11 Del. C. § 4209(g) (“Whenever the death penalty is imposed, and upon the judgment
becoming final in the trial court, the recommendation on and imposition of that penalty shall be
reviewed on the record by the Delaware Supreme Court.”); Cabrera’s direct appeal to the
Delaware Supreme Court was filed on March 21, 2002.
6
State v. Cabrera (Cabrera Motion for New Trial), 2003 WL 25763727 (Del. Super. Apr. 3,
2003).
2
January 27, 2004, affirmed Cabrera’s convictions and death sentences. 7 On
February 24, 2004, the Trial Court set Cabrera’s execution date for June 4, 2004.
B. Appointment of Rule 61 Counsel and Postconviction Motions
By letter dated March 8, 2004, Cabrera notified the Trial Court that Cabrera
intended to pursue postconviction relief and requested appointment of counsel.
The Trial Court appointed counsel to represent Cabrera in the postconviction
proceedings (“Rule 61 Counsel”). 8 On April 20, 2004, Cabrera’s Rule 61 Counsel
filed a motion to stay execution. The Trial Court granted the motion to stay
execution on April 27, 2004. Cabrera’s Rule 61 motion filed in November 2004—
amended in 2007, in 2012, and as briefed in 2014–2015—is now pending before
this Court for decision. 9
7
Cabrera v. State (Cabrera Direct Appeal), 840 A.2d 1256, 1259 (Del. 2004).
8
Various lawyers have been appointed as Rule 61 Counsel since 2004: first, Christopher D.
Tease, Esquire and Michael Heyden, Esquire; second, Christopher D. Tease, Esquire and Kevin
J. O’Connell, Esquire; third, Christopher D. Tease, Esquire and Jim Haley, Esquire; fourth,
Christopher D. Tease, Esquire, Thomas C. Grimm, Esquire and Rodger D. Smith II, Esquire. In
the meantime, Mr. Tease is not practicing law. See In re Tease, 105 A.3d 990 (Del. Nov. 20,
2014) (TABLE).
9
On November 30, 2004, Cabrera filed his first motion for postconviction relief. On March 19,
2007, Cabrera filed an amended motion for postconviction relief. On January 18, 2007, Cabrera
filed a motion for leave to contact jurors from the Rockford Park Trial, which the Trial Court
denied on August 7, 2008. State v. Cabrera (Cabrera Motion for Leave to Interview Jurors),
984 A.2d 149 (Del. Super. 2008). On January 22, 2008, Cabrera filed a motion for leave to
conduct discovery in furtherance of the motion postconviction relief, which the Trial Court
denied on August 14, 2008. State v. Cabrera (Cabrera Motion for Leave to Conduct Discovery),
2008 WL 3853998 (Del. Super. Aug. 14, 2008). On October 4, 2012, Cabrera filed a second
amended motion for postconviction relief. The Trial Court held evidentiary hearings in October
2012 and on April 1, 2013. See Super. Ct. Crim. R. 61(h)(1). The presiding judge retired from
the Superior Court in May 2013. The matter was reassigned by then-President Judge Vaughn in
September 2013. Cabrera filed a post-evidentiary hearing brief on April 14, 2014. The State
filed a response on July 15, 2014. Cabrera replied on October 3, 2014. Transcripts were
3
II. CONSIDERATION OF PROCEDURAL BARS
Superior Court Criminal Rule 61 governs Cabrera’s motion for
postconviction relief. 10 Postconviction relief is a “collateral remedy which
provides an avenue for upsetting judgments that otherwise have become final.”11
To ensure the finality of criminal convictions, the Court must consider the
procedural requirements for relief set out under Rule 61(i) before addressing the
merits of the motion. 12
Rule 61(i)(1) bars a motion for postconviction relief if it is filed more than
three years from the final judgment; this bar is not applicable as Cabrera’s first
postconviction motion was filed in a timely manner. 13 Rule 61(i)(2) bars
successive postconviction motions; 14 this bar is not applicable as Cabrera has not
filed successive postconviction motions. Rule 61(i)(3) bars relief if the motion
includes claims not asserted in prior proceedings leading to the final judgment; this
bar will be addressed in the discussion of the claims to which it applies. Rule
61(i)(4) bars relief if the motion includes grounds for relief formerly adjudicated in
obtained on February 7, 2015, and this Court heard oral argument on May 27, 2015. The parties
submitted supplemental argument and the record was closed on June 10, 2015.
10
Super. Ct. Crim. Rule 61 has since been amended. All references to Rule 61 refer to the
version of the Rule in place in 2004, when Cabrera filed his motion for postconviction relief.
11
Flamer v. State, 585 A.2d 736, 745 (Del. 1990).
12
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
13
Rule 61(i)(1) (barring a motion for postconviction relief unless filed within three years after
the judgment of conviction is final); Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
14
Super. Ct. Crim. R. 61(i)(2) (barring successive postconviction motions if the motion it
includes grounds for relief not asserted in a prior postconviction proceeding).
4
any proceeding leading to the judgment of conviction, in an appeal, or in a
postconviction proceeding; this bar will be addressed in the discussion of the
claims to which it applies.
The procedural bars to postconviction relief under Rule 61(i)(3) 15 can be
overcome if the motion asserts a colorable claim that there has been a “miscarriage
of justice” as the result of a constitutional violation that undermined the
fundamental fairness of the proceedings. 16 Likewise, the procedural bar under
Rule 61(i)(4)17 can be overcome if consideration of the claim on its merits is
warranted in the “interest of justice.” If the postconviction motion is procedurally
barred and neither exception applies, the Court should dispose of the motion
because postconviction relief is not “a substitute for direct appeal.” 18
Cabrera’s postconviction motion asserts multiple claims of constitutional
violations, including claims of ineffective assistance of counsel. The Delaware
Supreme Court has declined to hear claims of ineffective assistance of counsel on
direct appeal and, therefore, the first opportunity for Cabrera to assert such claims
is in an application for postconviction relief. 19
15
This exception is also applicable to procedural bars to postconviction relief under Rule 61
(i)(1) and (2), but those bars are not relevant here.
16
Super. Ct. Crim. R. 61(i)(5). See also Younger, 580 A.2d at 555; State v. Wilson, 2005 WL
3006781, at *1 n. 6 (Del. Super. Nov. 8, 2005).
17
This exception is also applicable to procedural bars to postconviction relief under Rule 61
(i)(2), but that bar is not relevant here.
18
Flamer, 585 A.2d at 745.
19
Id. at 753; State v. Gattis, 1995 WL 790961, at *3 (Del. Super. Dec. 28, 1995).
5
III. THE STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL
Cabrera claims that Cabrera Trial Counsel provided ineffective legal
assistance in violation of Cabrera’s rights under the Sixth, Eighth, and Fourteenth
Amendments to the U.S. Constitution and Article 1, § 7 of the Delaware
Constitution. The standard used to evaluate claims of ineffective counsel is the
two-prong test articulated by the United States Supreme Court in Strickland v.
Washington, 20 as adopted in Delaware. 21 The movant must show that (1) trial
counsel’s representation fell below an objective standard of reasonableness; and
(2) there is a reasonable probability that, but for trial counsel's unprofessional
errors, the result of the proceeding would have been different.22 Failure to prove
either prong will render the claim insufficient. 23 Moreover, the Court shall dismiss
entirely conclusory allegations of ineffective counsel. 24 The movant must provide
concrete allegations of prejudice, including specifying the nature of the prejudice
and the adverse affects actually suffered. 25
With respect to the first prong—the performance prong—the movant must
overcome the strong presumption that counsel’s conduct was professionally
20
466 U.S. 668 (1984).
21
See Albury v. State, 551 A.2d 53 (Del. 1988).
22
Strickland, 466 U.S. at 687.
23
Id. at 688; Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996).
24
Younger, 580 A.2d at 555; Jordan v. State, 1994 WL 466142, at *1 (Del. Aug. 25, 1994).
25
Strickland, 466 U.S. at 692; Dawson, 673 A.2d at 1196.
6
reasonable.26 The Court’s scrutiny of counsel’s performance must be highly
deferential and “every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at that time.” 27 To satisfy the
performance prong, Cabrera must assert specific allegations to establish Cabrera
Trial Counsel acted unreasonably as viewed against “prevailing professional
norms.” 28
With respect to the second prong—the prejudice prong—the question for the
Court is whether there is a reasonable probability that, absent the errors, the Trial
Court “would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” 29 In considering the prejudice prong, this
Court must “consider all the relevant evidence that the [Trial Court] would have
had before [him] if [counsel] had pursued a different path.” 30 To satisfy the
prejudice prong, Cabrera must establish the existence of a substantial likelihood,
not a mere conceivable likelihood, of a different result of the proceedings absent
Cabrera Trial Counsel’s errors.31
26
Strickland, 466 U.S. at 687–88.
27
Id. at 689.
28
Id. at 688; Wright v. State (Wright 1996), 671 A.2d 1353, 1356 (Del. 1996) (“Mere allegations
of ineffectiveness will not suffice.”).
29
Strickland, 466 U.S. at 695.
30
Taylor v. State (Taylor 2011), 32 A.3d 374, 382 (Del. 2011) (alteration in original) (internal
quotation omitted).
31
Strickland, 466 U.S. at 693; Ploof v. State, 75 A.3d 840, 852 (Del. 2013).
7
IV. CABRERA TRIAL COUNSEL WAS INEFFECTIVE
WITH RESPECT TO MITIGATION
This Court will consider the merits of procedurally sufficient constitutional
claims as well as any colorable claim of ineffective assistance of counsel.
Cabrera’s claim of ineffective assistance of counsel with respect to the presentation
made during the penalty phase regarding mitigation will be addressed on the
merits.
A. Cabrera Claims that Mitigation Investigation was Inadequate
Specifically, with respect to mitigation, Cabrera contends Cabrera Trial
Counsel was ineffective for focusing on the guilt phase, rather than the penalty
phase; by improperly relying on the mitigation investigation conducted previously
for the Otero Trial; and for ignoring “red flags” uncovered in connection with the
Otero Trial and the Rockford Park Trial. The State’s argument does not focus on
the sufficiency of Cabrera Trial Counsel’s mitigation investigation. Instead, the
State disagrees that a more extensive mitigation investigation would have revealed
a history of childhood abuse and neglect. The State classifies Cabrera’s upbringing
as “common-place” and argues that childhood issues such as sibling rivalry and the
lifestyle of Cabrera’s father are “everyday occurrences in one’s childhood” rather
than “‘red flags’ of abuse missed by [Cabrera Trial Counsel].” 32
32
State’s Resp. 57–58 (July 15, 2014).
8
Cabrera argues that Cabrera Trial Counsel was ineffective with respect to its
mitigation investigation and its preparation of a defense for the penalty phase of
the Rockford Park Trial. According to Cabrera, Cabrera Trial Counsel failed to
locate and interview at least a dozen witnesses who could have provided
background information on Cabrera to develop a mitigation strategy. Cabrera
argues that Cabrera Trial Counsel failed to obtain his school, military, and hospital
records; failed to retain a mitigation specialist; and never prepared a
comprehensive social history for Cabrera’s penalty phase defense. Cabrera
contends that a proper investigation would have uncovered a history of child abuse
and neglect; there is a reasonably probability that the jury would not have voted
11–1 to recommend the death penalty if a proper mitigation case had been
presented; and, accordingly, Cabrera would not have been sentenced to death by
the Trial Court.
B. The Standard for Mitigation in a Capital Case
The United States Supreme Court has recognized that defense counsel in a
capital case is “obligat[ed] to conduct a thorough investigation of the defendant’s
background.”33 In 1989, the American Bar Association promulgated guidelines for
defense attorneys in capital cases (“ABA Guidelines”). 34 With respect to
33
Williams v. Taylor, 529 U.S. 362, 396 (2000).
34
See Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases
(1989) (hereinafter ABA Guidelines).
9
conducting a mitigation investigation, Section 11.4.1 of the ABA Guidelines
provides:
A. Counsel should conduct independent investigations relating to
the guilt/innocence phase and to the penalty phase of a capital trial.
Both investigations should begin immediately upon counsel's entry
into the case and should be pursued expeditiously.
B. The investigation for preparation of the guilt/innocence phase
of the trial should be conducted regardless of any admission or
statement by the client concerning facts constituting guilt.
C. The investigation for preparation of the sentencing phase
should be conducted regardless of any initial assertion by the client
that mitigation is not to be offered. This investigation should comprise
efforts to discover all reasonably available mitigating evidence and
evidence to rebut any aggravating evidence that may be introduced by
the prosecutor.
According to the introductory paragraph of the ABA Guidelines, the
guidelines serve to “enumerate the minimal resources and practices necessary to
provide effective assistance of counsel.” The ABA Guidelines delineate the
prevailing professional norms for defense counsel in capital cases. 35 Failure to
follow the guidelines is not tantamount to ineffective assistance of counsel per se,36
but the ABA Guidelines do set a standard for evaluation of Cabrera Trial Counsel’s
conduct regarding its mitigation investigation. 37
35
Strickland, 466 U.S. at 688.
36
State v. Taylor, 2010 WL 3511272, at *17 (Del. Super. Aug. 6, 2010) (“Neither the United
States Supreme Court nor the Delaware Supreme Court has held that failure to meet the ABA
Guidelines in legally tantamount to ineffective assistance of counsel.”).
37
Strickland, 466 U.S. at 688 (“Prevailing norms of practice as reflected in the [ABA
Guidelines] and the like . . . are guides to determining what is reasonable.”).
10
The ABA Guidelines comment that defense counsel’s “duty to investigate it
not negated by the expressed desires of a client. Nor may [defense] counsel sit idly
by, thinking that the investigation would be futile. The attorney must first evaluate
the potential avenues of action and then advise the client on the merits of each.” 38
C. Cabrera Counsel Was Well Aware that a Mitigation Expert Should Have
Been Retained and, Indeed, Planned to Hire an Expert But Did Not Do So
Cabrera Trial Counsel testified at the postconviction hearing that they did
not hire a mitigation specialist for the Rockford Park Trial because that was not the
prevailing professional norm in 2001.39 Instead, Cabrera Trial Counsel maintains
that Mr. Carl Kent (“Defense Investigator”) conducted an investigation into
Cabrera’s background and that this investigation was sufficient.40
Cabrera Trial Counsel Deckers represented Cabrera at the Rockford Park
Trial while contemporaneously representing Jack Outten, another client in an
unrelated criminal case, in a postconviction proceeding. With respect to the Outten
matter, Deckers argued that Figliolia (coincidentally Decker’s co-counsel in the
Rockford Park Trial) was ineffective as counsel for Outten because Figliola failed
to conduct a proper mitigation investigation in accordance with the ABA
Guidelines. In support of the postconviction case in Outten, Deckers submitted an
expert report, stating in relevant part:
38
ABA Guidelines, supra note 34, § 11.4.1, cmt. (internal quotation omitted).
39
Ev. Hr’g Tr. 10/23/2012 at 83:5–23.
40
Id. at 73:22–74:1.
11
[P]reparing a thorough mitigation case is the single most important
thing an attorney can do in a death-penalty case, short of convincing
the prosecutor not to seek death in the first instance. An inadequate
investigation is almost a certain prescription for death. 41
The Court cannot reconcile Cabrera Trial Counsel’s postconviction hearing
testimony that, despite Cabrera Trial Counsel’s direct involvement in the Outten
case, they were unaware of the 1989 ABA Guidelines and the importance of
mitigation experts.42
Moreover, the mitigation specialist used for the postconviction proceedings
in the Outten case is the same mitigation specialist Cabrera Trial Counsel noted
should be hired for Cabrera’s case, but was not retained. Indeed, Cabrera Trial
Counsel’s files include at least three separate notes hand-written by Cabrera Trial
Counsel indicating that a mitigation specialist should be hired for Cabrera.43 In
fact, one of the notes specifically identifies the name of a mitigation specialist,
which was the same mitigation specialist Deckers was contemporaneously relying
upon in the Outten case.44 Accordingly, Cabrera Trial Counsel were aware that
41
Expert Report Re: Outten Mitigation (July 19, 2000), Cabrera Ex. 77 at 0698.
42
Ev. Hr’g Tr. 10/23/2012 at 83:3–84:1–11.
43
See Cabrera To Do List, Cabrera Ex. 23 at 0095 (Deckers wrote: “meet with Tony to discuss . .
. mit[igation] specialist.”); Notes (Apr. 7, 2000), Cabrera Ex. 24 at 0097 (Deckers wrote: “we
need to hire . . . mitigation specialist.”); Notes (Oct. 24, 2000), Cabrera Ex. 27 at 0107
(“Mitigation Specialist – Lori James-Monroe.”).
44
Notes (Oct. 24, 2000), Cabrera Ex. 27 at 0107 (“Mitigation Specialist – Lori James-Monroe.”).
12
prevailing professional norms required a mitigation specialist and they had
specifically considered retaining such an expert. 45
D. Cabrera Trial Counsel Concedes Focus on Guilt Phase to the Exclusion of
Penalty Phase
Cabrera Trial Counsel denies the allegations of ineffective assistance of
counsel, stating, “[Cabrera Trial] Counsel believes that the presentation of the
mitigation evidence was adequate and consistent with Cabrera’s instructions for
the penalty hearing . . . . [Cabrera Trial] Counsel is unaware of any important
mitigation evidence that was not presented to the jury or any evidence that would
have likely altered the jury’s 11–1 vote.”46 Cabrera Trial Counsel’s Rockford Park
Trial strategy focused on the guilt phase rather than the penalty phase of the
Rockford Park Trial. At the postconviction hearing, Cabrera Trial Counsel
testified that they focused on the guilt phase because “once the jury found out that
[Cabrera] was already serving life for [the] murder [of Otero] . . . it would be tough
to give [Cabrera] anything other than the death penalty.” 47 Neither attorney
prepared for the penalty phase because Cabrera Trial Counsel agreed to rely on the
mitigation investigation conducted for the Otero Trial instead.
45
See Ploof, 75 A.3d at 853–55 (discussing the court’s concern that trial counsel had suspected
there were issues with the defendant).
46
Cabrera Trial Counsel Aff. ¶ 20(a), (b) (June 17, 2005) (emphasis added).
47
Ev. Hr’g Tr. 10/23/2012 at 77:17–20.
13
Cabrera Trial Counsel focused on the guilt phase and reused the Otero Trial
mitigation investigation for the penalty phase. This was a strategic decision and
the Court must determine if Cabrera Trial Counsel’s decision to reuse the Otero
Trial mitigation investigation at the Rockford Park Trial was objectively
reasonable.48 The Court will give deference to “strategic decisions made after
thorough investigation of law and facts relevant to plausible options,” as such
decisions are “virtually unchallengeable.” 49 In other words, the question for the
Court is not whether Cabrera Trial Counsel should have presented mitigation
evidence at the Rockford Park Trial. Rather, the question is whether reasonable
judgment supported the extent of Cabrera Trial Counsel’s mitigation investigation
(i.e., the use and de minimis supplementation of the Otero Trial investigation) and
if that investigation supported the subsequent decision not to introduce additional
mitigating evidence at the Rockford Park Trial. 50
E. Reliance on the Otero Mitigation Investigation was Not Professionally
Reasonable
The Otero Trial mitigation investigation primarily consisted of a
psychological evaluation of Cabrera by Dr. Edward Dougherty. On May 30, 1998,
Dr. Dougherty completed a report on Cabrera (“Otero Report”), the purpose of
48
See Wiggins v. Smith, 539 U.S. 510, 521–29 (2003) (discussing the scope of deference owed to
a decision to focus on the guilt phase, rather than the penalty phase).
49
Outten v. Kearney, 464 F.3d 401, 417 (3d Cir. 2006) (citing Strickland, 466 U.S. at 690).
50
See id. at 416–19; Wiggins, 539 U.S. at 521–23.
14
which was to complete a comprehensive psychological evaluation of Cabrera and
render an opinion as to Cabrera’s complete mental health. In addition to
completing four psychological tests, Dr. Dougherty reviewed Otero Trial discovery
materials and a background history of Cabrera completed by an investigator. 51
The Otero Report stated that Cabrera “tends to portray himself as being
relatively free of common shortcomings to which most individual[s] [sic] will
admit, and he appears somewhat reluctant to admit minor faults.” 52 The Otero
Report characterized Cabrera as lacking anxiety, problematic behavior, or any
“serious indicators of a major psychopathological condition.” 53 Dr. Dougherty
concluded the Otero Report with the following, “it is clear that Mr. Cabrera could
function in a highly structured situation such as a state prison. There was no
indication that [Cabrera] is [an] [sic] actively violent person who would be a
danger to himself or other people in a prison environment.” 54
At the Rockford Park Trial, Cabrera Trial Counsel relied on the Otero Trial
investigation because “it was successful in the Otero Trial.” 55 However, Cabrera
Trial Counsel failed to address the unanswered questions posed by the Otero Trial
51
The investigator hired by Cabrera’s defense lawyers for the Otero Trial was Defense
Investigator retained by Cabrera Trial Counsel for the Rockford Park Trial.
52
Psychological Evaluation by Dr. Dougherty (May 30, 1998), Cabrera Ex. 14 at 0054
(hereinafter Dougherty).
53
Id. at 0054.
54
Id. at 0056.
55
With respect to the Otero murder, the jury voted 7–5 in favor of a death sentence. The Otero
Trial Court rejected the jury’s death penalty recommendation and sentenced Cabrera to life in
prison without the possibility of parole.
15
investigation. For instance, Cabrera Trial Counsel did not address lingering
concerns from Dr. Dougherty’s Otero Report regarding certain statements Cabrera
made: “I keep reliving something horrible that happened to me . . . . I’ve been
troubled by memories of a bad experience for a long time . . . . I have had some
horrible experiences that make me feel guilty.” 56 At the Otero Trial, Dr.
Dougherty opined that Cabrera has “a problem and [Cabrera] needs to address that
problem[,]” but Dr. Dougherty did not identify the problem. 57
F. Dr. Dougherty was Unavailable to Testify as a Witness; Dr. Jackson’s Last-
Minute Independent Review was Cursory and Insufficient; and Dr. Jackson
was Not a Compelling Witness
Not only was Dr. Dougherty’s Otero Report inadequate, but it was not even
presented to the jury by Dr. Dougherty himself because he was unavailable for the
Rockford Park Trial. Even though Cabrera Trial Counsel had anticipated that Dr.
Dougherty would present the Otero Report as mitigating evidence during the
penalty phase of the Rockford Park Trial, Cabrera Trial Counsel did not contact
Dr. Dougherty until five days before the Rockford Park Trial began.58 Due to the
short notice, Dr. Dougherty was not available to testify and recommended that his
partner, Dr. Ryno Jackson, serve as a substitute witness.
56
Dougherty, supra note 52, at 0055.
57
Otero Tr. 6/3/1998 at 49:16–50:1–19, 50:21–52:1–23, State’s App. at B-46.
58
Letter to Dr. Edward J. Dougherty (Jan. 5, 2001), Cabrera Ex. 30 at 0116–17.
16
On February 6, 2001, in the middle of the guilt phase, Dr. Jackson
completed an independent—but repetitive—psychological evaluation of Cabrera.59
Dr. Jackson’s report (“Rockford Report”) reached conclusions based on a clinical
interview and five psychological evaluation procedures, as well as Dr. Jackson’s
consideration of Dr. Dougherty’s Otero Report, and the mitigation testimony of
Stephanie Cabrera and Cabrera’s Mother from the Otero Trial.60 Dr. Jackson
found Cabrera to be psychologically strong and Dr. Jackson suggested that
Cabrera’s “principal psychological defense mechanism is denial” and that Cabrera
demonstrated “some tendency to flights of fantasy of an escapist nature.” 61 The
Rockford Report indicated that Cabrera’s evaluation results suggest “the presence
of perceptual dysfunction.” 62 The Rockford Report concluded, notwithstanding the
perceptual dysfunction and denial mechanisms, Cabrera was well-suited to deal
with the demands of prison life. 63
Dr. Jackson also testified that he prepared the Rockford Report with the
limited purpose of evaluating Cabrera’s ability to adapt to life in prison. 64 When
59
Psychological Evaluation by Dr. Jackson (Feb. 6, 2001), Cabrera Ex. 45 at 0211–13
(hereinafter Jackson).
60
Id. at 0211–12.
61
Id. at 0213.
62
Id.
63
Id.
64
On cross-examination, Dr. Jackson explained that he was “hired to . . . see if there was any
possibilities of [Cabrera] being a danger to himself or in a prison setting” for the purposes of
explaining that to the jury.” Penalty Phase Tr. 2/14/2001 at 104:22–105:1–4. See also id. at
17
asked if he had discussed the murders of Saunders and Rowe or any criminal
activity at all, Dr. Jackson responded, “No[,] [f]or the simple reason that I didn’t
have – well, several reasons really, but primarily because it took an extraordinary
length of time to do what I had to do, what I was tasked with doing.” 65
At the postconviction hearing, Cabrera Trial Counsel testified that Dr.
Dougherty recommended that Dr. Jackson testify at the Rockford Park Trial
because Dr. Jackson “was African-American.” 66 According to testimony at the
evidentiary hearing, Cabrera Trial Counsel contended that Dr. Jackson was better
suited to present to the jury but admitted “[Dr. Jackson] was terrible on the witness
stand . . . . [a]nd in hindsight, I would have insisted on Dr. Dougherty instead, but
that’s in hindsight.”67 In fact, Cabrera Trial Counsel recalled Dr. Jackson’s
presentation as “bad,” like Dr. Jackson “didn’t know what he was talking about,”
but it was too late for Cabrera Trial Counsel to make a different presentation. 68
Therefore, an unprepared witness presented the bulk of Cabrera’s mitigation
evidence to the jury at the penalty phase of the Rockford Park Trial. The Court is
not saying that Cabrera has been prejudiced due to a lackluster witness. Instead,
the Court mentions Dr. Jackson’s performance on the witness stand as just one of
111:14–15 (“I was given one task, that is to determine whether [Cabrera] would be functional in
a [prison] setting structure.”).
65
Penalty Phase Tr. 2/14/2001 at 116:8–11.
66
Ev. Hr’g Tr. 10/23/2012 at 87:13–15.
67
Id. at 88:2–6.
68
Id. at 88:10–14.
18
the prejudicial consequences resulting from Cabrera Trial Counsel’s untimely and
deficient preparation for the penalty phase of the Rockford Park Trial. 69
G. Additional Mitigation Evidence was Minimal
In addition to the Rockford Report, Cabrera Trial Counsel presented
mitigation evidence through the testimony of Ronda Frazier, Cabrera Sr.,
Stephanie Cabrera, and Luiz Diaz, cousin of co-defendant Reyes. Ronda Frazier
testified, specifically, as to her friendship with Cabrera. Frazier mentioned
Cabrera’s upbringing and recollections he shared with her, of him having it rough
growing up. This prompted the Trial Court to call for a sidebar conference.
H. The Trial Court Raised Concerns Regarding Defense Evidence Presented
At sidebar, the Trial Court discussed recent involvement in another criminal
trial where the trial judge stated that he had spent three days addressing the issue of
whether the defendant should present evidence in a penalty hearing. The Trial
Court explained to Cabrera Trial Counsel, “I mention this for several reasons. . . .
Ronda Frazier regarding how [Cabrera] had opened up to her and mentioned it was
rough, the things [Cabrera] had growing up.” 70
It therefore seems that the Trial Court was concerned that potential issues
existed because of Cabrera’s upbringing and the concern was significant enough to
69
See Williams, 529 U.S. at 395 (including defense counsel’s delay in conducting its mitigation
investigation—specifically, waiting a week before trial began—as a component of defense
counsel’s ineffectiveness).
70
Penalty Phase Tr. 2/14/2001 at 122:21, 123:5–7.
19
warrant consideration. Similarly, the State had expressed its concern that certain
areas of Cabrera’s life had not been explored or investigated, asking, “What was
Ronda Frazier talking about when she was alluding to things that [Cabrera]
confided in her?”71
In response to the inquiry, Cabrera Trial Counsel remained steadfast that,
according to Cabrera, “there [were] no family problems” and Cabrera will not
admit what other people alleged about his childhood. 72 Cabrera Trial Counsel
conceded that it only learned about Cabrera Sr.’s lifestyle, earning a living as a
gambler and bookie, on that day but that the information did not have “any
bearing” on the case.73 Further, Cabrera Trial Counsel reiterated that Cabrera was
very secretive and that counsel deferred to Cabrera’s wishes not to reveal anything
negative about his childhood. 74 With that, the sidebar conference concluded.
I. Reliance on Cabrera’s Self-Report was Not Reasonable
It is ineffective for defense counsel to abandon an investigation after
gathering “‘rudimentary knowledge of [the defendant’s] history from a narrow set
of sources.’” 75 The Otero Report included a section on Cabrera’s background but
the information was based solely on Cabrera’s own recollection of his childhood.
71
Id. at 125:16–18.
72
Id. at 123:15–23, 125:1–126:1–6.
73
Id. at 125:2–15.
74
Id. at 126:3–6 (“[CABRERA TRIAL COUNSEL]: Yes[,] [Cabrera] is very secretive . . . . [In]
[sic] fact [Cabrera] is probably fuming at the fact that Dr. Jackson made that kind of remark
because he idolizes his father.”).
75
Ploof, 75 A.3d at 852 (quoting Wiggins, 539 U.S. at 524).
20
Dr. Dougherty took Cabrera’s information at face value and Cabrera Trial Counsel
did nothing to investigate evidence that might contradict Cabrera’s own claims of
an average childhood. Furthermore, as the Rockford Park Trial progressed,
Cabrera Trial Counsel did nothing to substantiate Cabrera’s recollection of his
childhood and asked Dr. Jackson to evaluate Cabrera only on how he would fare in
prison. Cabrera Trial Counsel’s contention that exploration into Cabrera’s
childhood would have been fruitless based on Cabrera’s assertions is unpersuasive.
Moreover, it is inconsistent with the mitigating evidence developed in connection
with the pending postconviction motion.
Decisional law mandates that defense counsel’s strategic decisions properly
involve consideration of the defendant’s own statements, actions, and
preferences.76 On the other hand, the mitigation investigation cannot be limited to
the degree of information offered by the defendant as to his own past. In Porter v.
McCollum, 77 the United States Supreme Court explained that a “fatalistic or
uncooperative [client] . . . does not obviate the need for defense counsel to
conduct some sort of mitigation investigation.”78 Similarly, in Rompilla v.
Beard, 79 the United States Supreme Court determined that the defense counsel’s
76
Strickland, 466 U.S. at 691.
77
558 U.S. 30 (2009).
78
Id. at 40 (alterations in original).
79
545 U.S. 374 (2005).
21
mitigation investigation was deficient notwithstanding the defendant’s minimal
contributions and unwillingness to address his past.80
J. A Complete Mitigation Investigation Would Have Revealed Significant
Mitigating Evidence that Should Have Been Presented to the Jury
Cabrera’s Rule 61 motion presents extensive mitigating evidence that
Cabrera Trial Counsel would have uncovered had a proper mitigation investigation
been undertaken.
1. A Complete Psychological Evaluation Would Have Revealed Significant
Mitigating Evidence Including Abuse and Trauma
Cabrera Rule 61 Counsel hired Dr. Victoria Reynolds to evaluate Cabrera’s
history and the extent of any abuse and/or trauma Cabrera may have experienced
during the early years of his life. Dr. Reynolds was retained to determine how
trauma may have impaired Cabrera’s functioning and development.
Dr. Reynolds interviewed Cabrera on August 27 and 28, 2012, for a total of
thirteen (13) hours. Dr. Reynolds also conducted interviews with Cabrera’s mother
and Daisy Rodriguez, a childhood friend of Cabrera. In addition, Dr. Reynolds
reviewed 34 documents such as the Otero Report, the Rockford Report, Cabrera’s
criminal records, school records, and other records related to Cabrera’s social
80
Id. at 381–83. The Rompilla Court provided, “No reasonable lawyer would forgo examination
of the file[s] thinking he could do as well by asking the defendant or family[,]” despite knowing
that the State intends to introduce prior convictions and damaging testimony. Id. at 389–90.
22
history. Dr. Reynolds then issued a twenty (20) page report outlining her findings
(“Reynolds Report”).81
In summary, Dr. Reynolds concluded that Cabrera suffered from a history of
physical, emotional, and verbal abuse. As examples of the prolonged abused
suffered by Cabrera, Dr. Reynolds noted eight (8) instances of physical abuse by
Cabrera Sr.; thirteen (13) instances of emotional and verbal abuse by Cabrera Sr.;
fifteen (15) instances of exposure to domestic violence; and certain recollections of
fundamental maternal neglect.82 Dr. Reynolds also noted specific instances of
trauma including five (5) events of neighborhood violence; three (3) recollections
of being assaulted by strangers; and involvement in four (4) accidents resulting in
physical injuries.83 Some details include:
[Cabrera] was the scapegoat for most of his father’s physical rage.
Beginning when [Cabrera] was very young, [Cabrera Sr.] hit
[Cabrera] with his hands, belts, whips and hoses . . . . When [Cabrera]
was 4 or 5 years old, while visiting a neighbor’s house, he stole a
lighter. When the neighbor asked if [Cabrera] had taken the lighter,
[Cabrera] admitted it, knowing that what he’d done was wrong.
[Cabrera Sr.] reacted by verbally berating [Cabrera], stating that
[Cabrera] had ‘embarrassed the hell out of him,’ and whipping
[Cabrera] with a hose . . . . [Cabrera’s] mother corroborates
[Cabrera’s] memory and recalls that [Cabrera Sr.] ‘went on a
rampage’ with the hose and that [Cabrera] fell to the floor from the
force of the blows. [Cabrera’s mother] recalls throwing herself over
[Cabrera] to protect him and getting hit herself with the hose. She
81
Psychological Report of Trauma and Its Impact: Luis G. Cabrera by Dr. Reynolds (Oct. 1,
2012), Cabrera Ex. 97 at 0799–0818 (hereinafter Reynolds).
82
Id. at 0801–09.
83
Id. at 0809–10.
23
recalls cleaning [Cabrera] up afterwards and that there were welts on
his back and legs. [Cabrera’s mother] also recalls that the beatings
and screaming coming from their house were so loud that the
neighbor from whom [Cabrera] stole the lighter came over and said
she felt terrible that [Cabrera] had gotten into so much trouble. 84
According to Dr. Reynolds, Cabrera also recalled an event where he and his
sister were “goofing around with his father’s friends’ kids, burping, laughing” at a
restaurant and, when told to stop, the children continued. Cabrera described the
following events to Dr. Reynolds:
[Cabrera] described how [Cabrera Sr.] ‘collared him up,’ by picking
him up by the front of his shirt, and slammed [Cabrera] against the
wall. [Cabrera Sr.] then took off his belt and beat [Cabrera] all over
his body. 85
Dr. Reynolds emphasized, “[Cabrera] summarized the situation as his fault, and
was desperate to correct the fact that his father was so upset with him. 86
In addition, Cabrera Sr. engaged in emotional and verbal abuse against
Cabrera throughout Cabrera’s childhood. The Reynolds Report included the
following examples:
[Cabrera] recalls hearing his father tell his sister that he wished she’d
never been born. More often, however, his father would communicate
how disappointed and disgusted he was with [Cabrera]. 87
....
84
Id. at 0801–02.
85
Id. at 0802.
86
Id.
87
Id. at 0803.
24
One of the most traumatic experiences [Cabrera] recalls occurred
when [Cabrera Sr.] would threaten to ostracize [Cabrera] from the
family for his misdeeds. Despite the fact that [Cabrera] wasn’t doing
anything wrong and was very submissive and accommodating to his
father’s demands, [Cabrera] recalls [Cabrera Sr.] telling him on
several occasions he’d gotten so tired of dealing with [Cabrera] that
he was going to send [Cabrera] to a residential home. [Cabrera Sr.]
would pick up the phone and dial a number. [Cabrera] believed he
was speaking to someone at a residential facility. 88
Cabrera’s mother corroborated Cabrera’s claims of physical and emotional
abuse and discussed her own maternal neglect of Cabrera. Cabrera’s mother
recalled watching Cabrera Sr. beat Cabrera with a belt for coming down the stairs
after bedtime, 89 and listening to Cabrera Sr. blame his own unhappiness on Cabrera
and threaten to abandon and punish Cabrera. 90
2. A Complete Mitigation Investigation Would Have Exposed Cabrera’s
Deficient Education Record
A proper mitigation defense would also have presented inconsistencies with
the information provided by Cabrera for the Otero Trial investigation, including
Cabrera’s academic history. According to Cabrera, he did well in school and
“never failed a class.” Relying on Cabrera’s self-report, Cabrera Trial Counsel
explained to the Trial Court that Cabrera “had an exemplary record . . . . [h]e was a
C plus student [and] had only two absences in four years.” 91 However, Cabrera’s
88
Id. at 0804.
89
Id. at 0802.
90
Id. at 0803.
91
Penalty Phase Tr. 2/14/2001 at 126:11–16.
25
records do not support these assertions. Even a cursory review of Cabrera’s high
school transcript shows that Cabrera struggled with school attendance and grades.
For example, in his first year of high school, Cabrera failed a basic life sciences
class and was absent seven (7) times. 92 Over the next three years, Cabrera’s
performance and attendance declined. Cabrera failed six (6) classes and was
absent 10, 15, and 20 times, respectively, totaling 52 absences over four years. 93
Indeed, Cabrera graduated from high school with a grade point average of 1.4. 94
Moreover, at the postconviction hearing, Cabrera’s high school teacher Ms.
Barbara Finnan testified about Cabrera’s middle school years and her concerns
about his “family environment.” 95 Finnan’s testimony corroborated the
conclusions in the Reynolds Report: Cabrera suffered from hypervigilance and
anxiety. 96 The reality of Cabrera’s actual high school performance was completely
at odds with the presentation made at the Rockford Park Trial.
92
Cabrera’s Record Folder-NCC School District, Cabrera Ex. 87 at 0763 (hereinafter NCC
School District).
93
Id. at 0763.
94
Id. at 0763.
95
Ev. Hr’g Tr. 10/10/2012 at 12:9–24:1–13. Finnan testified:
I recall the students who stood out in my classrooms . . . . I thought [Cabrera],
because he was, to me, a challenge . . . because of the behavior, I was concerned
about the family environment, that perhaps his dad was too strict at home and . . .
he might not have the support at home that he might need.
Id. at 23:11–17.
96
See id. at 18:8–19:1.
26
K. Cabrera Trial Counsel was Ineffective With Respect to the Mitigating
Evidence Presented in the Penalty Phase
To establish ineffective assistance of counsel, Strickland requires Cabrera
show both unreasonable performance and prejudice from such error. To satisfy the
prejudice prong—with respect to Cabrera’s presentation of new mitigation
evidence—Cabrera must prove there is a substantial likelihood that, absent Cabrera
Trial Counsel’s errors, the Trial Court would have had a reasonable basis to
conclude that the balance of aggravating and mitigating circumstances did not
warrant death. 97 This Court must “consider all the relevant evidence that the [Trial
Court] would have had before [it] if [Cabrera Trial Counsel] had pursued a
different path.”98
1. Cabrera Trial Counsel’s Performance Fell Below an Objective
Standard of Reasonableness with Respect to Mitigation
Consideration of the first prong of Strickland requires an analysis of whether
the performance of Cabrera Trial Counsel fell below an objective standard of
reasonableness. Cabrera Trial Counsel’s strategy ignored the importance of a
mitigation investigation in capital cases. 99 Cabrera Trial Counsel did not present
97
Strickland, 466 U.S. at 695; Ploof, 75 A.3d at 886–87 (Strine, C., dissenting) (explaining the
importance of presenting mitigating evidence to a jury in light in Delaware’s death penalty
scheme and for purposes of the prejudice prong of Strickland).
98
Taylor 2011, 32 A.3d at 382 (alteration in original) (internal quotation omitted).
99
See Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty
Cases, 58 N.Y.U.L.Rev. 299 (1983). Goodpaster discusses the role of defense counsel in a
capital case in the following terms:
27
mitigation evidence as to Cabrera’s childhood, upbringing, family, or otherwise.
The decision to rely on the Otero Trial investigation was unreasonable because it
was incomplete and it was presented by an unsatisfactory witness who conducted
only a cursory interview with Cabrera, and did not speak to family members or
review any objective documentation from Cabrera’s childhood.
Cabrera Trial Counsel faced difficulty when attempting to glean insight into
the unflattering details of Cabrera’s background because Cabrera was reluctant to
expose his traumatic history and abusive childhood. Nonetheless, Cabrera Trial
Counsel had a duty to conduct an independent investigation. For example, Cabrera
Trial Counsel did not pursue exploration into Cabrera’s childhood in light of Dr.
Dougherty’s later concerns of abuse and conclusion that Cabrera refused to
acknowledge certain shortcomings. 100
This Court is cautious to avoid the distorting effects of hindsight when
evaluating Cabrera Trial Counsel’s conduct and the Court recognizes that Cabrera
continued to deny any allegations that he suffered as a child and respects the
As an advocate . . . defense counsel has the related but distinct function of
attempting to persuade the jury to exercise mercy. Defense counsel therefore has
both the opportunity and the duty to present potentially beneficial mitigating
evidence and to attempt to convince the sentencer that, notwithstanding the
defendant's guilt, he or she is a person who should not die. Once the defendant has
been found guilty of a capital crime, a life sentence is counsel's only remaining
advocacy goal. As an advocate for life, counsel must attempt to demonstrate that
mitigating factors outweigh aggravating factors and must present the sentencer
with the most persuasive possible case for mercy.
Id. at 318.
100
See Otero Tr. 6/3/1998 at 49:16–50:1–19, 50:21–52:1–23, State’s App. at B-46.
28
influence such denial had upon Cabrera Trial Counsel’s presentation.101
Nevertheless, Cabrera Trial Counsel had a duty to conduct more than a
rudimentary investigation, especially in light of suspicions or concerns of issues
that might have uncovered mitigating evidence. Indeed, the Otero Trial
investigation and limited supplemental Rockford Park Trial investigation
overlooked certain indications—or red flags—of underlying issues related to
Cabrera’s childhood that a reasonable attorney would have explored in an attempt
to uncover mitigation evidence.
In certain circumstances, defense counsel must “do more” to uncover
mitigating evidence.102 Because Cabrera Trial Counsel’s strategy relied on the
undeveloped information obtained in the Otero Trial mitigation investigation
supplemented by the Rockford Report, without more, its performance fell below an
objective standard of reasonableness.103 The first prong of Strickland is satisfied.
101
See Strickland, 466 U.S. at 691 (“[W]hen a defendant has given counsel reason to believe that
pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue
those investigations may not later be challenged as unreasonable.”).
102
See Ploof, 75 A.3d at 855 (“We disavow any attempt to create a rigid rule that a defense
attorney is ineffective whenever that attorney fails to uncover potential mitigating evidence, no
matter how unapparent. We conclude only that, in these specific circumstances, Trial Counsel
needed to do more.”).
103
See id. at 853–55.
29
2. Cabrera Suffered Prejudice Because There is a Reasonable
Likelihood that the Result of the Proceeding Would Have Been
Different
A proper mitigation defense would have presented an entirely different
picture of Cabrera’s background. Cabrera Trial Counsel interviewed Cabrera as
the sole source of information of Cabrera’s childhood. On the other hand, Dr.
Reynolds testified at the postconviction hearing that talking solely to the abuse
victim is never sufficient because victims tend to minimize “what is objectively
abusive.” 104
As another example, Cabrera Trial Counsel failed to contact any of
Cabrera’s high school teachers to verify Cabrera’s claims that he did well in
school, and did not even obtain Cabrera’s school records to substantiate his claims
that he did “well” in school. 105 Cabrera Trial Counsel’s claims of Cabrera’s
“exemplary” high school experience sharply contrasted to the reality of his high
school experience.
104
Ev. Hr’g Tr. 10/25/2012 at 115:10–21.
105
But see Cabrera Trial Counsel Aff. ¶ 14:
Denied. Counsel was in possession of all relevant mitigation evidence from
Cabrera’s first trial. This information was supplemented by interviewing
Cabrera’s family members and friends regarding their contact with Cabrera while
incarcerated. Cabrera’s disciplinary file was also reviewed to ascertain how he
was adjusting to prison life. All information from the [Otero Trial] as well as any
newly obtained information was given to [Dr. Jackson], who interviewed and
tested Cabrera prior to the penalty phase of his [Rockford Park Trial].
30
In addition, even the limited investigation by Defense Investigator identified
multiple individuals who could discuss Cabrera’s background but Cabrera Trial
Counsel never interviewed a majority of the individuals identified by Defense
Investigator. 106 Cabrera Trial Counsel’s opening statement from the penalty phase
of the Rockford Park Trial highlights Counsel’s strategy. In relevant part, counsel
stated:
You are not going to hear that Luis Cabrera had a terrible upbringing,
that his father was an alcoholic that beat him; that he is a social
outcast. That is not going to come out. Luis Cabrera is basically - -
there is nothing wrong with him. No explanation for the things he has
done. That is the tough part. . . . You are going to hear from [Cabrera
Sr.] [a]nd the message is simple, don’t do to our [family] what
[Cabrera] did to others. Give [Cabrera] life. 107
Cabrera Trial Counsel’s failure to conduct a complete and thorough
investigation prejudiced Cabrera. That there was “nothing wrong” as actually
presented by Cabrera Trial Counsel was inaccurate and woefully deficient. Even
in light of the significant aggravating factor of the earlier Otero murder, had
Cabrera Trial Counsel presented a mitigation case at the penalty phase that
accurately presented Cabrera’s childhood and upbringing, there is a substantial
106
See Ev. Hr’g Tr. 10/23/2012 at 92:1–93:1–10.
107
Penalty Phase Tr. 2/13/2001 at 29:7–20 (emphasis added). See also Ev. Hr’g Tr. 10/23/2012
at 91:3–10.
31
likelihood that the jury would have had recommended life rather than death. 108
The second prong of Strickland is satisfied.
3. The Remedy for Ineffective Assistance of Counsel During the Penalty
Phase is to Vacate the Death Sentence Imposed by the Trial Court
Cabrera was entitled to have the extensive mitigating evidence presented to a
jury for its consideration in reaching a sentencing recommendation. 109 This Court
finds that Cabrera Trial Counsel provided ineffective assistance of counsel with
respect to the mitigation investigation, the lack of preparation for the penalty
phase, and the inaccurate presentation of Cabrera’s childhood and upbringing.
Under Strickland, the appropriate remedy is for Cabrera’s death sentence to be
vacated.
V. CABRERA IS NOT ENTITLED TO RELIEF
FOR HIS REVERSE-BATSON CLAIM
BECAUSE IT DOES NOT SATISFY STRICKLAND
This Court will consider the merits of procedurally sufficient constitutional
claims as well as any colorable claim of ineffective assistance of counsel.
Cabrera’s reverse-Batson claim will be addressed on the merits as a claim of
ineffective assistance of counsel. Cabrera argues that Cabrera Trial Counsel’s
representation was ineffective because Counsel purposefully discriminated against
108
See Wong v. Belmontes, 558 U.S. 15, 20, 26 (2009) (requiring the consideration of “all the
evidence—the good and the bad—when evaluating prejudice.”); Norcross v. State, 36 A.3d 756,
771 (Del. 2011) (en banc) (determining prejudice requires an evaluation of the aggravating
evidence against the earlier mitigation evidence and the new mitigation evidence).
109
See 11 Del. C. § 4209.
32
jurors on the basis of race during jury selection thereby committing a reverse-
Batson violation of the Equal Protection Clause of the Fourteenth Amendment.
A. Purposeful Discrimination in Jury Selection is Prohibited
In Batson v. Kentucky, 110 the United States Supreme Court held that
discrimination on account of race in selection of jurors, by the State, is prohibited
and a prosecutor’s “racial discrimination . . . violates a defendant’s right to equal
protection because it denies him the protection that a trial by jury is intended to
secure.”111 In Powers v. Ohio, 112 the Supreme Court expanded Batson, holding
that “a criminal defendant may object to race-based exclusion of jurors effected
through peremptory challenges whether or not the defendant and the excluded juror
share the same races.” 113 One year later, in Georgia v. McCollum, 114 the Supreme
Court expanded Batson again, holding that criminal defendants, like prosecutors,
were prohibited from engaging in purposeful discrimination on ground of race. 115
A Batson objection to the defendant’s exercise of a peremptory challenge is known
110
476 U.S. 79 (1986).
111
Id. at 86, 98.
112
499 U.S. 400 (1991).
113
Id. at 402.
114
505 U.S. 42 (1992).
115
Id. at 59 (“[T]he exercise of a peremptory challenge must not be based on either the race of
the juror or the racial stereotypes held by the party.”). The McCollum Court explained that
discrimination during jury selection upsets “the fairness of, and public confidence in, the
criminal justice system[,]” and “undermine[s] the very foundation of our system of justice.” Id.
at 48–49.
33
as a reverse-Batson claim. 116 Batson and its decisional progeny teach reciprocity
of equal protection and warn that “[t]he harm from discriminatory jury selection
extends beyond that inflicted on the defendant and the excluded juror to touch the
entire community.” 117 The prohibition of purposeful discrimination preserves the
integrity of the criminal justice system. 118
B. Cabrera Trial Counsel Utilized a Racially-Motivated Strategy in Jury
Selection to Exclude Three Black Potential Jurors
Cabrera Trial Counsel pursued a racially-motivated strategy during jury
selection by strategically excluding black males and mothers of young black males
from the jury. Specifically, Cabrera Trial Counsel exercised peremptory
challenges to exclude three black potential jurors from the jury of the Rockford
Park Trial.119 Also, Cabrera Trial Counsel expressed a preference for Hispanic
jurors. 120
The first reference to considerations of juror race during jury selection was a
discussion on the record initiated by Cabrera Trial Counsel:
MR. FIGLIOLA: Your Honor, we’re not going to - - I’d like to say
something. We’re not going to oppose [the State’s strike of Mr.
Caraballo for cause]. I don’t think we can . . . . However, out of a jury
very near of 157, [Mr. Caraballo] was the only Hispanic.
116
State v. McCoy, 112 A.3d 239, 249 (Del. 2015).
117
Batson, 476 U.S. at 87.
118
Powers, 499 U.S. at 413–14.
119
Jury Selection Tr. 1/10/2001 at 179:15–16; Jury Selection Tr. 1/11/2001 at 167:8–9; Jury
Selection Tr. 1/12/2001 at 151:10–11.
120
See Jury Selection Tr. 1/12/2001 at 120:5–21; Ev. Hr’g Tr. 10/23/2012 at 42:7–13.
34
MR. WOOD: That’s not true.
THE TRIAL COURT: Well, [Mr. Caraballo] was the only one
marked Hispanic.
MR. FIGLIOLA: Only one marked Hispanic. For that reason - -
THE TRIAL COURT: I understand.
MR. WOOD: Well, let’s flush out that record.
MR. FIGLIOLA: For that reason, we were anxious, if at all possible,
to have Mr. Caraballo qualify as a juror. 121
The second reference to considerations of race during jury selection took
place after Cabrera Trial Counsel exercised a third peremptory challenge against a
black potential juror and the Trial Court initiated the following colloquy:
THE TRIAL COURT: Before the next juror, please, I don’t mean to
pull the pin out of the hand grenade, but that’s at least the third
African-American the defense has stricken. Two others were females,
as I recall, and one of them was a male, too.
MR. WOOD: Your Honor has correctly recounted the record
pertaining to the defense use of strikes. We have no application at this
time, however.
MR. DECKERS: Does the Court wish for me to make a record?
THE TRIAL COURT: You might want to protect yourself, sure.
MR. DECKERS: Well, I don’t - -
MR. WOOD: We have no application at this time and, in particular,
we are not alleging, nor do we ask the [Trial] Court to find that a
121
Jury Selection Tr. 1/12/2001 at 120:5–21
35
prima facie case of racial animus in the exercise of peremptory
challenges has been shown by this record.
THE TRIAL COURT: Okay. I make no such finding anyway. I’m
not making a finding. I’m merely making an observation. 122
The third discussion of considerations of race during jury selection took
place when the Trial Court conducted an evidentiary hearing pursuant to Rule
61(h), at which hearing Cabrera Rule 61 Counsel questioned Cabrera Trial Counsel
on its jury selection strategy, as follows:
CABRERA RULE 61 COUNSEL: What do you recall about your
strategy in selecting jurors in this case and how you decided to use
your peremptory strikes?
....
CABRERA TRIAL COUNSEL: We . . . went in to the jury
attempting to get jurors that we thought would be more inclined to
find an acquittal. Specifically, I don’t think we wanted any young
black males. We didn’t want any mothers of young black males . . .
which is somewhat unusual when you go into a murder case, because
generally those people would tend not to give the death penalty.
CABRERA RULE 61 COUNSEL: Do you recall executing that
strategy and using your strikes?
CABRERA TRIAL COUNSEL: I’m pretty sure we did. I think we
did.
CABRERA RULE 61 COUNSEL: Do you recall indicating to the
[Trial] Court during jury selection that you were hopeful to have
Hispanic jurors seated in this case?
122
Id. at 152:9–153:1–8.
36
CABRERA TRIAL COUNSEL: I don’t recall that, but it would not
surprise me, if we did.
CABRERA RULE 61 COUNSEL: Why not?
CABRERA TRIAL COUNSEL: Because [Cabrera] was Hispanic.123
Therefore, the record supports a finding that Cabrera Trial Counsel made a
deliberate and racially-motivated decision to exclude from the jury young black
males and mothers of young black males on the assumption that these individuals
would be sympathetic to the victims, Saunders and Rowe. In addition, Cabrera
Trial Counsel’s racially-motivated strategy for jury selection was to include
Hispanic jurors solely because that Cabrera is Hispanic.124
C. Race-Based Selection of Jurors Was Not Challenged at Rockford Park
Trial or on Direct Appeal
A reverse-Batson claim was not raised during jury selection for the Rockford
Park Trial. Had a reverse-Batson claim been raised directly, the three-step inquiry
delineated by the Delaware Supreme Court in its decision in McCoy v. State, would
have been required:
First, the trial judge must determine whether the State has made a
prima facie showing that the defendant exercised a peremptory
challenge on the basis of race. Second, if the showing is made, the
burden shifts to the defendant to present a race-neutral explanation for
striking the juror in question . . . . [S]o long as the reason is not
123
Ev. Hr’g Tr. 10/23/2012 at 40:22–23, 41:16–23, 42:4–13 (emphasis added).
124
See Powers, 499 U.S. at 402 (“[A] criminal defendant may object to race-based exclusions of
jurors effected through peremptory challenges whether or not the defendant and the excluded
juror share the same races.”).
37
inherently discriminatory, it suffices. Third, the trial judge must then
determine whether the State has carried its burden of proving
purposeful discrimination. This final step involves evaluating the
persuasiveness of the justification proffered by the defendant, but the
ultimate burden of persuasion regarding racial motivation rests with,
and never shifts from, the opponent of the strike. 125
In connection with this three-step inquiry, the Trial Court might have exercised the
court’s discretion to prevent Cabrera Trial Counsel from exercising peremptory
challenges in a racially-motivated manner. However, the three-step inquiry did not
take place because there was no challenge by Cabrera or the State.
If a reverse-Batson claim had been raised on direct appeal, and the Delaware
Supreme Court found a reverse-Batson error, then Cabrera would have been
entitled to a presumption of prejudice because Batson errors qualify as structural
error. Structural errors are “defects in the constitution of the trial mechanism” that
infect the “entire conduct of the trial from beginning to end.” 126 Structural errors
deprive defendants from basic protections without which “a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or innocence, and
no criminal punishment may be regarded as fundamentally fair.” 127
However, in the case now pending before this Court, no reverse-Batson error
was raised during jury selection or on direct appeal. Furthermore, the Trial Court
125
McCoy, 112 A.3d at 251 (internal citations omitted).
126
Arizona v. Fulminante, 499 U.S. 279, 309 (1991); Neder v. U.S., 527 U.S. 1, 8–9 (1999).
127
Fulminante, 499 U.S. at 310 (internal citation omitted).
38
did not impede on Cabrera Trial Counsel’s exercise of peremptory challenges.128
Indeed, Cabrera Trial Counsel exercised Cabrera’s peremptory challenges in the
exact manner they intended. Nevertheless, Cabrera asserts that this Court should
address his reverse-Batson claim on the merits as structural error on the grounds
that this type of error by Cabrera Trial Counsel satisfies the miscarriage of justice
exception and requires grating a new trial. This Court disagrees and finds that
Cabrera’s reverse-Batson claim may be presented in this postconviction proceeding
for the first time only as a claim of ineffective assistance of counsel and as
discussed below, prejudice must be established. Moreover, this Court finds, as
discussed below, that there was no miscarriage of justice in the guilt phase of
Cabrera’s Rockford Park Trial.
D. Cabrera’s Case is Distinguishable from McCoy v. State and Sells v. State
because Cabrera’s Reverse-Batson Claim is Asserted in Postconviction
Proceedings
In 2015, the Delaware Supreme Court issued two decisions overturning
judgments of conviction against defendants on grounds of reverse-Batson error.129
In McCoy, the defendant had exercised fourteen peremptory challenges to exclude
white jurors.130 When the McCoy defendant exercised his fifteenth peremptory
128
Cf. McCoy, 112 A.3d 239 (Del. 2015); Sells v. State, 109 A.3d 568 (Del. 2015).
129
See also Grimes v. State, 2015 WL 2015 WL 2231801 (Del. May 12, 2015) (vacating the
judgment of convictions entered against Grimes in the same trial as William S. Sells, III, for the
reasons set forth in the Sells v. State decision).
130
McCoy, 112 A.3d at 249–50.
39
challenge, the trial judge sua sponte sought a justification from the defendant.131
Despite two race-neutral explanations, the trial judge refused to accept the
defendant’s peremptory challenge. 132 Upon the defendant’s appeal from his death
sentence, the Delaware Supreme Court concluded that the trial court “committed
reversible error when it improperly denied [the defendant]’s right to exercise a
peremptory challenge to strike a potential juror.” 133 The Supreme Court
determined a new trial was the proper remedy because trial court’s error violated
the defendant’s right to a fair trial with a jury panel comprised of impartial
jurors. 134 Specifically, the improper denial of the defendant’s peremptory
challenge “forced the defendant to be judged by a jury that includes a juror that
was objectionable to him.” 135
In Sells, the State made a reverse-Batson challenge during jury selection
arguing that the defendant, a minority, was engaging in racial discrimination by
using two of his three peremptory challenges to strike white jurors.136 The trial
court found that the defendant had engaged in a “pattern of racial discrimination”
and required the defendant to provide reasons for exclusion of jurors during the
131
Id. at 250.
132
Id.
133
Id. at 245.
134
Id. at 254–58.
135
Id. at 257–58.
136
Sells, 109 A.3d at 577.
40
remaining process of jury selection.137 The defendant appealed his conviction on
the grounds that the trial court erred when the court allowed the State’s reverse-
Batson challenge. The Delaware Supreme Court determined that the trial court had
improperly restricted the defendant’s ability to use his peremptory challenges by
requiring that the defendant articulate a non-discriminatory reason for exercising
his peremptory strikes. 138 Accordingly, the Supreme Court vacated the judgment
of conviction that resulted from the trial.139
Cabrera’s case is distinguishable from McCoy and Sells because neither the
State nor the Trial Court raised a reverse-Batson claim against Cabrera Trial
Counsel during jury selection for the Rockford Park Trial. Next, Cabrera’s case is
distinguishable because Cabrera–rather than the State or the Trial Court–has raised
the reverse-Batson claim against his own counsel in a different procedural context:
postconviction relief. Finally, unlike in McCoy and Sells, Cabrera was not
prevented from exercising his peremptory challenges. Indeed, Cabrera’s Rockford
Park Trial jury was comprised of the jurors Cabrera Trial Counsel thought best
suited to consider Cabrera’s case.
137
Id. at 578.
138
Id. at 579–82.
139
Id. at 582.
41
E. To Prevail on His Reverse-Batson Claim, Cabrera Must Demonstrate that
Cabrera Trial Counsel’s Strategy of Race-Based Jury Selection was
Ineffective Assistance of Counsel
To prevail on his reverse-Batson claim, Cabrera must satisfy the test set
forth in Strickland: (1) Cabrera Trial Counsel’s representation fell below an
objective standard of reasonableness; and (2) there is a reasonable probability that,
but for the errors, the result of the proceeding would have been different. 140
1. Cabrera Trial Counsel’s Racially-Motivated Jury Selection Strategy
Fell Below an Objective Standard of Reasonableness under Strickland
Cabrera Trial Counsel’s racially-motivated strategy was inconsistent with
the teachings of Batson, Powers, and McCollum. Indeed, such conduct is
unequivocally banned in that “[d]efense counsel is limited to ‘legitimate, lawful
conduct.’” 141 While a defendant has “the right to an impartial jury that can view
him without racial animus,” the Sixth Amendment right to effective counsel does
not give the defendant “the right to carry out through counsel an unlawful course
of conduct.”142 As the McCollum Court explained:
[T]here is a distinction between exercising a peremptory challenge to
discriminate invidiously against jurors on account of race and
exercising a peremptory challenge to remove an individual juror who
harbors racial prejudice. This Court firmly has rejected the view that
assumptions of partiality based on race provide legitimate basis for
disqualifying a person as an impartial juror. As this Court stated . . .
140
Strickland, 466 U.S. at 687.
141
McCollum, 505 U.S. at 57 (quoting Nix v. Whiteside, 475 U.S. 157, 166 (1986)).
142
Id. at 58.
42
in Powers, ‘[w]e may not accept as a defense to racial discrimination
the very stereotype the law condemns.’ 143
Delaware law is consistent with these principles. According to Delaware’s
Rules of Professional Conduct (“Rules”), a Delaware lawyer’s conduct “should
conform to the requirements of the law.” 144 The Rules confer upon the client the
ultimate authority to determine the scope and purposes of the legal representation
but simultaneously require that the lawyer act “within the limits imposed by law
and the lawyer’s professional obligations.” 145
Furthermore, labeling Cabrera Trial Counsel’s conduct as “strategic,” does
not change the analysis. Batson serves to protect the interests of defendants,
prosecutors and, most importantly; Batson serves to protect the interests of
prospective jurors and society’s interest in an unbiased judicial system. 146 Batson
is clear that “[c]ompetence to serve as a juror ultimately depends on an assessment
of individual qualifications and ability impartially to consider evidence presented
at trial[,] [and] [a] person’s race simply is unrelated to his fitness as a juror.” 147
143
Id. at 59 (quoting Powers, 499 U.S. at 410).
144
Del. Lawyers’ R. Prof’l Conduct Preamble, 5; Del. Lawyers’ R. Prof’l Conduct 8.4(d)
(providing that any course of action that is “prejudicial to the administration of justice” is
professional misconduct).
145
Del. Lawyers’ R. Prof’l Conduct 1.2, cmt. 1 (emphasis added). See also Del. Lawyers’ R.
Prof’l Conduct Preamble, 9 (noting that “the lawyer's obligation zealously to protect and pursue
a client's legitimate interests, within the bounds of the law[.]”) (emphasis added).
146
Batson, 476 U.S. at 99.
147
Id. at 87 (internal citation omitted).
43
In light of the well-settled decisional law, this Court concludes that Cabrera
Trial Counsel’s exercise of peremptory challenges in furtherance of the admittedly
race-based juror selection strategy constituted a reverse-Batson error that was not
consistent with prevailing professional norms. Accordingly, the first prong of
Strickland is satisfied because Cabrera Trial Counsel’s performance fell below an
objective standard of reasonableness.
2. Cabrera Must Demonstrate Prejudice under the Second Prong of
Strickland
Cabrera contends that prejudice from Cabrera Trial Counsel’s reverse-
Batson error is presumed under Strickland because the error is so egregious that it
amounts to a “structural error” and requires a new trial. This Court rejects
Cabrera’s argument that prejudice must be presumed. Rather, this Court finds that
the second prong of Strickland requires that Cabrera demonstrate actual prejudice:
that, but for Cabrera Trial Counsel’s reverse-Batson error, the result of the
proceeding would have been different.
Courts are split between two prevailing schools of thought on how to
evaluate the prejudice prong of a Strickland claim based on a reverse-Batson error.
Either prejudice is presumed because a reverse-Batson error is a structural error148
or there must be specific instances of prejudice that demonstrate a reasonable
148
See generally Winston v. Boatwright, 649 F.3d 618 (7th Cir. 2011) (discussing the prejudice
prong of a Strickland on grounds of a reverse-Batson error).
44
probability that the results of the proceeding would have been different absent
defense counsel’s exercise of peremptory strikes. 149
Cabrera asks this Court to follow the former. In support, Cabrera relies on
the Seventh Circuit Court of Appeals’ decision in Winston v. Boatwright, in which
the Court of Appeals held “[u]nconstitutional juror strikes, like other structural
errors, create the kind of problem that def[ies] analysis by harmless error
standards.”150 In light of this conclusion, the Winston Court concluded that despite
Strickland’s call for an examination of prejudice, reverse-Batson errors are
included in the “limited class on fundamental constitutional errors” 151 where
“prejudice is so likely that ‘case-by-case inquiry into prejudice is not worth the
cost’—‘prejudice is presumed.’” 152
Absent Delaware precedent on this issue, this Court declines to extend the
well-settled Delaware law under Strickland that requires a finding of actual
prejudice. According to Strickland, “[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
149
See U.S. v. Kehoe, 712 F.3d 1251, 1253–54 (8th Cir. 2013) (relying on the decision in Young
v. Bowersox, 161 F.3d 1159 (8th Cir. 1998) to reject the defendant’s argument that an ineffective
claim based on a Batson error requires a presumption of prejudice).
150
Winston, 649 F.3d at 633 (internal citation omitted).
151
Id. at 632 (citing Neder, 527 U.S. at 7).
152
Id. at 633 (citing Strickland, 466 U.S. at 692).
45
produced a just result.” 153 The heavy burden of satisfying the Strickland prejudice
prong is the defendant’s burden.154
3. Cabrera Was Not Prejudiced by Cabrera Trial Counsel’s Reverse-
Batson Error as Required for Relief under Strickland Because there is
No Reasonable Likelihood that the Result of the Rockford Park Trial
Would Have Been Different Absent Cabrera Trial Counsel’s Reverse-
Batson Error
Cabrera’s claim of ineffective counsel requires this Court consider whether
the reverse-Batson error committed by Cabrera Trial Counsel prejudiced Cabrera.
Under Strickland, Cabrera bears the burden of establishing prejudice suffered as a
result of Cabrera Trial Counsel’s errors. Prejudice is defined as “a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.”155 Cabrera must make specific and substantiated
allegations of prejudice.156 Failure to do so undermines Cabrera’s claim of
ineffective counsel. 157
Even though Cabrera Trial Counsel’s performance was deficient, Cabrera
has not demonstrated that he suffered prejudice under the second prong of
Strickland. Cabrera had a trial by jury, with the jurors that his lawyers thought
153
Strickland, 466 U.S. at 686.
154
See Younger, 580 A.2d at 555 (“[I]n a postconviction proceeding, the petitioner has the
burden of proof and must show that he has been deprived of a substantial constitutional right
before he is entitled to any relief.”).
155
Strickland, 466 U.S. at 694; Hoskins v. State, 102 A.3d 724, 730 (Del. 2014).
156
Wright 1996, 671 A.2d at 1356.
157
Dawson, 673 A.2d at 1196.
46
would be most sympathetic to him. 158 Cabrera has not demonstrated prejudice to
his interests.
This Court recognizes that Cabrera Trial Counsel’s reverse-Batson error
harmed the interests of the public as well as the integrity of the criminal justice
system. This Court does not condone–nor does the law permit–Cabrera Trial
Counsel’s conduct. Yet, Cabrera has not demonstrated that he suffered actual
prejudice from Cabrera Trial Counsel’s reverse-Batson error. Therefore, upon
consideration of the record and the decisional law of Batson and Strickland, this
Court finds that Cabrera has failed to make a showing of actual prejudice and,
therefore, the second prong of Strickland is not satisfied. Accordingly, Cabrera has
not demonstrated that Cabrera Trial Counsel was ineffective in connection with
Cabrera’s reverse-Batson claim.
VI. CABRERA CANNOT ESTABLISH INEFFECTIVE ASSISTANCE OF
COUNSEL ON OTHER CLAIMS RELATED TO THE PENALTY PHASE
This Court will consider the merits of procedurally sufficient constitutional
claims as well as any colorable claim of ineffective assistance of counsel. With
respect to the penalty phase of the Rockford Park Trial, in addition to the
158
Cabrera’s Rockford Park Trial jury consisted of eight females and four males. Seven of the
female jurors represented their race as “white” and one represented her race as “black.” Of the
four male jurors, two identified as “white” and the other two did not identify with a specific race.
See Juror Profile (Jan. 9, 2001), Cabrera Ex. 32, 33 at 0121–0173.
47
arguments related to the mitigation investigation, 159 Cabrera contends that Trial
Counsel was ineffective for failing to argue residual doubt as a mitigating factor;
failing to object to the introduction of details regarding the Otero murder; failing to
object to the presentation of transcript testimony for Reyes and Wilson Serrano;
and failing to object to the State’s argument that the death penalty was the only
appropriate sentence for Cabrera. Presentation of evidence at a penalty hearing is
quite broad if admissible as relevant under 11 Del. C. § 4209(c). 160
A. Residual Doubt as a Mitigating Factor
Cabrera contends Cabrera Trial Counsel was ineffective for failing to argue
residual doubt as a mitigating factor during the penalty phase because the State
presented solely circumstantial evidence and because the jury was deadlocked
before receiving an Allen charge. According to Cabrera, Cabrera Trial Counsel’s
failure to argue residual doubt deprived Cabrera of the opportunity to have the jury
consider a powerful mitigating factor.
Cabrera is correct that neither the United States or Delaware Constitutions,
nor the applicable decisional law, prohibits capital defendants from relying on
residual doubt.161 However, the constitutions and decisional law do not require a
159
See supra Section IV.
160
See 11 Del. C. § 4209(c) (providing that at a death penalty hearing, “evidence may be
presented as to any manner that the Court deems relevant and admissible to the penalty to be
imposed[,]” including all matters related to mitigating and aggravating circumstances).
161
See Franklin v. Lynaugh, 487 U.S. 164, 173–75 (1988); Zebroski v. State, 822 A.2d 1038,
1049–51 (Del. 2003), impliedly overruled on other grounds in Steckel v. State, 882 A.2d 168,
48
presentation in the penalty phase regarding residual doubt. Indeed, the United
States Supreme Court has definitively stated that defendants have no “right to
demand jury consideration of ‘residual doubts’ in the [penalty] phase.” 162
Even if this Court agreed that Cabrera Trial Counsel’s conduct unreasonably
deprived Cabrera of the opportunity to have the jury consider residual doubt,
Cabrera has not provided specific allegations of prejudice. Cabrera’s conclusory
assertion that Cabrera Trial Counsel should have argued residual doubt does not
satisfy the requirements of the two-prong Strickland analysis. Cabrera Trial
Counsel’s strategic decision not to offer an argument regarding residual doubt did
not fall below an objective standard of reasonableness.
B. Presentation of Luis Reyes’ and William Serrano’s Testimony by
Transcript rather than Calling Witnesses Live
At the penalty phase of the Rockford Park Trial, the State read the prior
testimony of Reyes and Serrano from the Otero Trial into the record for the jury’s
consideration.163 Reyes’ Otero Trial testimony discussed Reyes’ relationship with
Cabrera and the circumstances of the Otero murder. 164 Serrano’s Otero Trial
testimony discussed a statement allegedly made by Cabrera in which Cabrera
171 (Del. 2005); Shelton v. State, 744 A.2d 465, 496–97 (Del. 1999) (explaining that there is no
blanket exclusion from discussing residual doubt).
162
Franklin, 487 U.S. at 173, 174.
163
Reyes testified against Cabrera at the Otero Trial.
164
Penalty Phase Tr. 2/13/2001 at 33:1–142:1–15 (reading of Reyes’ testimony).
49
admitted Cabrera had killed someone. 165 Cabrera argues that Cabrera Trial
Counsel was ineffective for failing to object to the presentation of prior testimony
of Reyes and Serrano by reading transcripts instead of calling each witness to
testify in court with the opportunity for cross-examination.
1. Testimony of Reyes from Otero Trial
With respect to the prior testimony of Reyes, Cabrera argues the testimony
was inadmissible as hearsay. Specifically, Cabrera claims the State’s reading of
Reyes’ prior testimony violated Cabrera’s right to confrontation because Cabrera
Trial Counsel failed to object to the State introduction of the testimony in a manner
that denied Cabrera the opportunity to cross-examine Reyes or otherwise test the
accuracy of Reyes’ testimony and his credibility as a witness.166
Cabrera’s arguments do not satisfy Strickland. First, Reyes’ prior testimony
was admissible evidence under 11 Del. C. § 4209(c) which states that, at a death
penalty hearing, “evidence may be presented as to any manner that the Court
deems relevant and admissible to the penalty to be imposed,” including all matters
related to mitigating and aggravating circumstances. Delaware decisional law
permits a “very wide range of evidence . . . in a penalty hearing.” 167 Accordingly,
165
Id. at 146:9–183:1–2 (reading of Serrano’s testimony).
166
See Wheeler v. State, 36 A.3d 310, 317–18 (Del. 2012) (“[T]he Confrontation Clause
prohibits the admission of testimonial statements of a witness who did not appear at trial unless
[the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” (alteration in original) (internal quotation omitted)).
167
State v. Cohen, 634 A.2d 380, 384 (Del. Super. 1992) (internal citation omitted).
50
any objection by Cabrera Trial Counsel would have been futile as Reyes’ prior
testimony was relevant to the penalty phase of the Rockford Park Trial.
Furthermore, Cabrera Trial Counsel did not object because Cabrera “through
his trial counsel in the Otero case, had a full and fair opportunity to cross-examine
Reyes.” 168 In addition, even if Cabrera Trial Counsel would have objected to the
reading of Reyes’ testimony, Reyes’ most certainly would have invoked his Fifth
Amendment right because his Rockford Park Trial was still pending. 169
The decisions by Cabrera Trial Counsel not to object to the presentation of
Reyes’ prior testimony by transcript did not fall below an objective standard of
reasonableness. Accordingly, Cabrera fails to satisfy the Strickland test.
2. Prior Testimony of Serrano from Otero Trial
With respect to the prior testimony of Serrano, Cabrera Trial Counsel did not
object to the reading of Serrano’s testimony transcript. Indeed, after consulting
with Cabrera, Counsel agreed with the transcript presentation. Cabrera Trial
Counsel stated at side bar:
Your Honor . . . [the State] had asked . . . whether we would object to
handling . . . Mr. Serrano in the same manner [as] Mr. Reyes or [if]
we’ll [sic] require Mr. Serrano to be present. [Cabrera Trial Counsel]
also had discussed it with Mr. Cabrera, and . . . it was our intention
even if Mr. Serrano came in we were going to introduce his testimony
168
Cabrera Trial Counsel Aff. ¶ 20(c).
169
By contrast, in connection with his testimony at the Otero Murder Trial, Reyes had already
entered a guilty plea in connection with Otero’s death, waiving his right to assert his Fifth
Amendment privileges against self-incrimination. See Boykin v. Alabama, 395 U.S. 238 (1969).
51
from the [Otero Trial] hearing . . . . Therefor[e] [Cabrera Trial
Counsel] ha[s] no objection to [Serrano’s testimony] being handled in
this manner.170
Furthermore, Cabrera Trial Counsel explained to the Trial Court that
Cabrera had been informed of his right to confront Serrano and Cabrera and
acknowledged waiver of “whatever evidentiary rules may inhibit or prevent or
create difficulty for introduction of [Serrano’s] transcript . . . .” 171 Cabrera Trial
Counsel explained that Cabrera was “well aware . . . . [and] accepted it.” 172
This Court finds that the record demonstrates that Cabrera Trial Counsel
made a reasonable strategic decision regarding the presentation of Serrano’s prior
testimony. The decision by Cabrera Trial Counsel not to object to the presentation
of Serrano’s prior testimony by transcript did not fall below an objective standard
of reasonableness. Accordingly, Cabrera fails to satisfy the Strickland test.
3. State’s Detailed Presentation Regarding Otero Murder
Cabrera contends that, although the parties stipulated to the admission into
evidence of Cabrera’s criminal record, the State nonetheless presented additional
evidence concerning the “gruesome details” of the Otero murder. According to
Cabrera, Cabrera Trial Counsel should have objected and did not do so thereby
providing ineffective assistance of counsel. Cabrera argues that Cabrera Trial
170
Penalty Phase Tr. 2/13/2001 at 144:22–145:1–11.
171
Id. at 145:12–15, 145:23–146:1–2.
172
Id. at 145:23–146:1–2.
52
Counsel should have objected to this presentation as prejudicial under Delaware
Rule of Evidence 403, which applies with equal force in the penalty phase of
trial 173 and prohibits the use of evidence if its probative value is substantially
outweighed by the prejudice caused to the defendant.
In support of this claim, Cabrera relies on the Delaware Supreme Court’s
decision in State v. Cohen for his contention that, during the penalty phase,
evidence of previous crimes may be excluded as unduly prejudicial. 174 However,
Cabrera misapplies the conclusions of Cohen, which addresses the relevance and
prejudicial effect of “unadjudicated incidents” 175 while, in this case, Cabrera had
already been convicted and sentenced for Otero’s murder. Moreover, as the Cohen
Court explained:
Much of the information that is relevant to the sentencing decision
may have no relevance to the question of guilt, or may even be
extremely prejudicial to a fair determination of that question. Thus,
even if the Court had ruled evidence of these unadjudicated incidents
to be inadmissible during the guilt phase because their probative value
was outweighed by the danger of unfair prejudice, that balancing
becomes different in the penalty phase . . . . [Indeed], such incidents
assume a greater relevance in a capital penalty hearing.176
173
See Gregg v. Georgia, 428 U.S. 153, 203–04 (1976); Cohen, 634 A.2d at 385.
174
See Cohen, 634 A.2d at 385.
175
Id. “[E]ven with the heightened relevance of this evidence in a penalty hearing, there remains
concern about the unfair prejudice that may result from evidence about a crime for which there
has been no conviction.” Id. at 387–88, 392 (emphasis added).
176
Cohen, 634 A.2d at 385 (internal citations omitted).
53
Furthermore, the Cohen Court notes that, under the death penalty statute, “the jury
and the judge must weigh the totality of the circumstances.” 177
Cabrera has not demonstrated that Cabrera Trial Counsel’s representation
fell below an objective standard of reasonableness with respect to the Otero murder
presentation. Accordingly, Cabrera cannot satisfy the Strickland criteria.
4. State’s Punishment Theme in Closing
Cabrera argues that Cabrera Trial Counsel was ineffective for failing to
object to the State’s punishment theme during its closing. However, Cabrera Trial
Counsel did object to the State’s punishment theme, but counsel’s objection was
overruled by the Trial Court. During an office conference on February 13, 2001,
Cabrera Trial Counsel argued that it was an “improper argument for sentencing
that because [Cabrera] is already serving a life sentence that any[] [punishment]
less than death . . . . [does] not satisfy society’s goals.”178 The Trial Court
concluded that the State could argue the fact that Cabrera was already serving a life
sentence as a non-statutory aggravating factor for sentencing purposes. 179 Cabrera
has not demonstrated that Cabrera Trial Counsel’s representation fell below an
objective standard of reasonableness since the objection was made but overruled
by the Trial Court.
177
Id. at 386 (emphasis added).
178
Office Conf. Tr. 2/13/2001 at 26:18–22.
179
Id. at 28:2–4.
54
VII. CABRERA TRIAL COUNSEL’S FAILURE TO SEEK SUPPRESSION
OF THE GUN SEIZED FROM CABRERA SR.’S RESIDENCE
WAS NOT INEFFECTIVE ASSISTANCE OF COUNSEL
Cabrera argues that Cabrera Trial Counsel was ineffective for failing to seek
suppression of a .38 Special Armenius Titan Tiger gun (“38 Special Gun”) because
it was seized during a warrantless search during the unrelated Otero investigation.
Cabrera’s claim of ineffective assistance of counsel with respect to the decision by
Cabrera Trial Counsel not to seek suppression of the 38 Special Gun seized from
Cabrera Sr.’s residence will be addressed on the merits. 180
On March 20, 1997, in connection with an investigation the murder of
Funador Otero, police officers arrived at the home of Cabrera Sr. who signed a
“Consent to Search Form;” 181 told the police there was a gun in the front bedroom;
and led the police to the 38 Special Gun. Cabrera Sr. also told the police that
Cabrera knew where Cabrera Sr. kept the 38 Special Gun and had access to it.182
The police seized the 38 Special Gun.
Four days later, the State’s Lead Investigating Officer Detective Mark
Lemon (“State Lead Investigating Officer”) sent the 38 Special Gun and bullet
180
In 2008, Cabrera’s Rule 61 Counsel filed a motion for leave to conduct discovery on three
matters related to Cabrera’s Rule 61 motion, including issues related to the seizure of the 38
Special Gun from Cabrera Sr.’s house. In August 2008, the Trial Court issued two decisions
denying the motions. See Cabrera Motion for Leave to Interview Jurors, 984 A.2d 149 (Del.
Super. 2008); Cabrera Motion for Leave to Conduct Discovery, 2008 WL 3853998 (Del. Super.
Aug. 14, 2008).
181
Consent to Search Form, Cabrera Ex. 6 at 0013A.
182
Cabrera Sentencing, 2002 WL 484641, at *7 (“Mr. Cabrera, Sr. told the police his son knew
[Cabrera Sr.] had a gun.”).
55
fragments from the Rockford Park Murders for testing. It was determined that the
38 Special Gun matched the weapon that fired the bullet recovered from Rowe’s
body. State Lead Investigating Officer used the ballistics evidence to obtain a
search warrant for Cabrera Sr.’s house (“Cabrera Sr. Search Warrant”).183
Stephanie Cabrera testified that she married Cabrera in December 1994, and
that the two lived together until October 1995 in an apartment (“Cabrera Marital
Apartment”) in an apartment building (“Apartment Building”). 184 According to
Stephanie’s testimony, Cabrera remained in the Cabrera Marital Apartment with
Reyes after Stephanie moved out. Stephanie testified that, at that time, Reyes had
been living with Cabrera and Stephanie for a month or two. Stephanie Cabrera
testified that Cabrera moved out of the Cabrera Marital Apartment in the fall of
1996 and into the basement of Cabrera Sr.’s home. 185
The police executed the Cabrera Sr. Search Warrant on April 4, 1997.
During the search the police seized personal property belonging to Cabrera,
including belts and a bed sheet that were later admitted into evidence at the
183
See State Lead Investigating Officer’s Aff., Cabrera Ex. 16 at 0059–70. State Lead
Investigating Officer’s affidavit to obtain a search warrant provided:
Your affiant can state that on 20 March [19]97, Wilmington Police Detectives
responded to 302 N. Franklin Street, Wilmington[,] Delaware in regards to a
homicide investigation, unrelated to this mater . . . . Mr. Cabrera [Sr.] further said
that the only people who had keys to his residence that could have access to the
gun was his son, Luis Cabrera and [Cabrera’s] friend, Luis Reyes.
Id. at 0062.
184
Cabrera Direct Appeal, 840 A.2d at 1261.
185
Id. at 1261; Cabrera Sentencing, 2002 WL 484641, at *7.
56
Rockford Park Trial. In closing arguments at the Rockford Park Trial, the State
relied on Cabrera’s knowledge of the 38 Special Gun’s location, and Cabrera’s
ability to possess and control the 38 Special Gun to argue that Cabrera had access
to the 38 Special Gun at the time of Vaughn’s and Rowe’s murders.186
Cabrera Trial Counsel testified about the strategic decision not to seek
suppression of the 38 Special Gun as follows:
CABRERA RULE 61 COUNSEL: Do you [Cabrera Trial Counsel]
recall considering whether or not to move to suppress the [38 Special
G]un that had been seized from Mr. Cabrera [Sr.’s] residence?
CABRERA TRIAL COUNSEL: I don’t believe we did.
CABRERA RULE 61 COUNSEL: Do you recall the reasons why?
Let me back up. You don’t recall considering it, or you did consider it
and decided not to?
CABRERA TRIAL COUNSEL: I know we did not file [a motion to
suppress]. I believe we talked about it. And the issues were, one, it
wasn’t [Cabrera’s] . . . [38 Special G]un [and Cabrera] was the one on
trial. We . . . did not want to give any indication that we were stating
that was his [38 Special G]un. Our defense was it wasn’t [Cabrera’s
38 Special G]un. [Cabrera] didn’t have a [38 Special G]un, he had no
access to it. Plus, my recollection is I’m not sure that [Cabrera] was
actually living there, and, therefore, [Cabrera] may not have had
standing. So it was basically we didn’t think [Cabrera] had standing,
plus we didn’t want to have to admit that it was [Cabrera’s 38 Special
G]un.” 187
186
Closing Arg. Tr. 2/8/2001 at 17:18–19:1–16.
187
Ev. Hr’g Tr. 10/23/2012 at 59:10–23–60:1–5 (emphasis added).
57
Cabrera Trial Counsel also explained that it didn’t matter whether or not Cabrera
knew or did not know about the location of the 38 Special Gun because the defense
theory was that Cabrera did not have a 38 Special Gun.188
The 38 Special Gun was seized with the consent of Cabrera Sr., the owner of
the residence and the owner of the gun. The United States and Delaware
Constitutions protect the right of persons to be secure from “unreasonable searches
and seizures.”189 Searches and seizures are per se unreasonable, in the absences of
exigent circumstances, unless authorized by a warrant supported by probable
cause. 190 However, warrantless searches conducted pursuant to a valid consent,
qualify as a recognized exception to the warrant requirement. 191 Consent to search
is valid if given voluntarily and if the person giving consent has the authority to do
so.192 Here, Cabrera Sr. had the authority to consent to the search of his residence
and did so. Indeed, Cabrera Sr. lead the police to his gun kept within his residence.
Cabrera Trial Counsel has articulated a reasonable trial strategy that was
inconsistent with seeking suppression of the 38 Special Gun. Cabrera cannot
satisfy the first prong of Strickland with respect to this claim.
188
Id. at 61:3–5. “It all depends on what your defense is. And if your defense is not guilty, I
didn’t do it, I didn’t have a gun . . . you don’t want to leave the door open to any other
interpretation.” Id. at 61:10–14.
189
U.S. Const. amend. IV; Del. Const. art. I, § 6.
190
Hanna v. State, 591 A.2d 158, 162 (Del. 1991).
191
Schneckloth v. Bustamonte, 412 U.S. 218, 221–22 (1973).
192
Id. at 222.
58
VIII. CABRERA IS NOT ENTITLED TO RELIEF IN CONNECTION
WITH HIS CHALLENGES TO THE BELT EVIDENCE
On April 4, 1997, a search of Cabrera Sr.’s residence yielded multiple belts
from the basement, where Cabrera resided from time to time. On January 9, 2001,
the first day of jury selection for the Rockford Park Trial, the Medical Examiner
for the State of Delaware (“Medical Examiner”) conducted a comparison of the
belts seized from Cabrera Sr.’s residence to the photographs of Rowe’s upper torso
pattern injuries. It was the opinion of the Medical Examiner that the distinct
pattern on the buckle of one of the belts (“Patterned Belt Buckle”) taken from the
basement of Cabrera Sr.’s house could have caused the markings Rowe’s upper
torso.
At the lunch recess that same day, the State informed Cabrera Trial Counsel
that the State intended seek the admission into evidence of the results of the
Medical Examiner’s belt-to-injuries comparison (“Patterned Belt Buckle-Injury
Presentation”). The State formerly disclosed its proposed Patterned Belt Buckle-
Injury Presentation by letter dated January 10, 2001:
As a follow up to the State’s discovery response dated July 5, 2000,
the State offers the following . . . . It is anticipated that [Medical
Examiner] will testify in a descriptive fashion about the injuries
[sustained by Rowe] . . . . We do not anticipate soliciting opinions
about the instrument of causation.
As described to you orally on January 9th, [Medical Examiner]
examined the metal tip belts from [Cabrera Sr.’s residence]. That
examination was conducted on the morning on January 9th . . . . With
59
respect to one of the belts, the patterns and measurements match
[Rowe’s] injuries . . . . That belt was consistent with the pattern
injuries and accordingly could have caused [Rowe’s] injuries.
[Medical Examiner] will not testify that the belt did in fact cause the
injuries.193
On January 17, 2001, during the Rockford Park Trial, Cabrera Trial Counsel
moved to exclude the Patterned Belt Buckle-Injury Presentation on the grounds
that the timeliness of the State’s disclosure was a discovery violation, and that
there was no evidence to associate the Patterned Belt Buckle with Cabrera at the
time of the Rockford Park Murders. 194 Cabrera Trial Counsel reminded the Trial
Court that, in May 2000, after a third conference discussing discovery issues,
Cabrera Trial Counsel made a detailed discovery request to determine all of the
expert testimony the State would offer at the Rockford Park Trial. The Trial Court
ruled that the Patterned Belt Buckle-Injury Presentation was inadmissible because
the State could not link the Patterned Belt Buckle to Cabrera.195
One week later, the State proffered a witness, Mileka Mathis, to testify that
Cabrera owned the Patterned Belt Buckle at the time of the Rockford Park
Murders. The Trial Court reconsidered its prior ruling on the admissibility of the
Patterned Belt Buckle-Injury Presentation and ruled that the Patterned Belt Buckle-
Injury Presentation—including the Patterned Belt Buckle itself—was admissible if
193
Letter from State to Cabrera Trial Counsel (Jan. 10, 2001), Cabrera Ex. 34 at 0174.
194
Cabrera Trial Counsel Mot. in Limine Tr. 1/17/2001 at 13:11–13, 18:2–9.
195
Id. at 32:1–38:1–18.
60
authenticated and if the State established a link between the Patterned Belt Buckle
and the injuries sustained on Rowe’s upper torso. The Trial Court then recessed
the Rockford Park Trial for one week so that Cabrera Trial Counsel could attempt
to locate someone who could serve as a witness to rebut the State’s Patterned Belt
Buckle-Injury Presentation and the testimony of Mathis.
By letter dated January 30, 2001, Cabrera Trial Counsel requested that the
Trial Court require the evidence to be presented as follows:
In light of the [Trial] Court’s ruling that the [Patterned Belt Buckle]
and the photographic overlays are admissible, we spoke with a
photographer and [defense expert witness] Dr. Hameli. In addition,
[Cabrera Trial Counsel] performed some research and concluded that
the photographic array (in and of itself) was “scientific” in nature and,
therefore, needed to qualify under the Delaware Supreme Courts
acceptance of the holdings in Daubert . . . . In last Friday’s office
conference, [Cabrera Trial Counsel] intimated that a motion would be
filed regarding the admissibility of the [Patterned Belt Buckle-Injury
Comparison] evidence. Obviously, no issue had been presented to the
[Trial] Court and, therefore, the [Trial] Court was not asked to rule on
any particular issue. Nevertheless, the [Trial] Court did hypothesize
that [Medical Examiner]’s testimony may be necessary in order to
establish the basis for admission under Daubert.
After having reviewed the proffered evidence with Dr. Hameli,
[Cabrera Trial Counsel] feel[s] duty bound to advise the [Trial] Court
that the methodology employed by the Medical Examiner’s Office is,
in fact, a readily accepted practice in the field of forensic pathology . .
. . [Cabrera Trial Counsel] believe[s] that, without [Medical
Examiner]’s explanations, the jury would be left with an incomplete
picture of the value of the testimony. More directly, [Cabrera Trial
Counsel] believe[s] that, absent expert analysis, the photographic
overlay would be simply misleading to the jury and would leave room
for inappropriate speculation.
61
All this being said, the defense does not waive its objection to the
admissibility of the [Patterned Belt Buckle-Injury Presentation] but,
rather, seeks the most appropriate manner for the presentation of the
evidence . . . . The State has been advised of [Cabrera]’s continuing
objection to the admissibility of the [Patterned Belt Buckle-Injury
Presentation], as well as [Cabrera]’s proposed presentation of the
evidence.196
The Patterned Belt Buckle-Injury Presentation was made at the Rockford
Park Trial, according to the parameters requested by Cabrera Trial Counsel,
including presentation by Cabrera’s expert witness, Dr. Hameli, who testified
contrary to Medical Examiner’s Patterned Belt Buckle-Injury Presentation. Dr.
Hameli testified that Medical Examiner’s belt comparison was difficult because the
Patterned Belt Buckle was three-dimensional while the photo overlays were two-
dimensional. 197 Dr. Hameli also testified that there was just as many
inconsistencies as consistencies between the Patterned Belt Buckle and the photo
overlays and discussed the inconsistencies in detail. 198
A. Challenge to the State’s Patterned Belt Buckle-Injury Presentation as a
Discovery Violation
On direct appeal, the Delaware Supreme Court considered Cabrera’s claim
that the State violated its discovery obligations with respect to its Patterned Belt
Buckle-Injury Presentation. The Supreme Court concluded that, although the State
196
Letter from Cabrera Trial Counsel to the Trial Court (Jan. 30, 2001), Cabrera Ex. 43 at 0208–
09 (emphasis added).
197
Trial Tr. 2/7/2001 at 70:6–15.
198
Id. at 73:16–80:1–15.
62
did violate discovery rules by failing to produce the Patterned Belt Buckle-Injury
Presentation in a timely manner, the Trial Court properly exercised its broad
discretion to fashion a remedy for the State’s discovery violation. 199 The Delaware
Supreme Court also concluded that Cabrera did not suffer prejudice from the
State’s discovery violation; Cabrera Trial Counsel presented an expert rebuttal
witness; the State authenticated the Patterned Belt Buckle; and because the police
seized the Patterned Belt Buckle from the basement of Cabrera Sr.’s home among
Cabrera’s personal effects, it was linked to Cabrera with or without the testimony
of Mathis. 200
Therefore, Cabrera’s claim is merely a renewal of a formerly adjudicated
claim and is procedurally barred under Rule 61(i)(4). Cabrera’s Rule 61 motion
lacks any new legal or factual information that warrants reconsideration in the
interest of justice.
B. Challenge to the Delayed Disclosure of Mathis as a Witness
Cabrera argues that the State’s delayed disclosure of Mathis as a witness
resulted in a fundamentally unfair trial and that the Trial Court’s grant of a one-
week recess in the middle of the Rockford Park Trial did not alleviate the
prejudice. Cabrera asserts that the delayed disclosure of Mathis was particularly
199
Cabrera Direct Appeal, 840 A.2d at 1259, 1263 (concluding that the Trial Court did not
abuse its discretion is admitting into evidence the Patterned Belt Buckle-Injury Presentation).
200
Id. at 1263–65.
63
prejudicial because it occurred at the end of the State’s case-in-chief, after Cabrera
Trial Counsel had already formulated its defense strategy. Cabrera maintains that
if the State had disclosed the Patterned Belt Buckle-Injury Presentation and Mathis
at the time the Trial Court ordered disclosure, then Cabrera Trial Counsel could
have formulated a defense strategy that took the entirety of the State’s Patterned
Belt Buckle-Injury Presentation and Mathis testimony into consideration.
Cabrera’s claim is merely a renewal of a formerly adjudicated claim and is
procedurally barred under Rule 61(i)(4). Cabrera’s Rule 61 motion lacks any new
legal or factual information that warrants reconsideration in the interest of justice.
C. Associated Claims of Ineffective Assistance of Counsel
Cabrera cannot demonstrate ineffective assistance of counsel with respect to
this claim. Cabrera Trial Counsel presented specific, repeated objections to each
aspect of the State’s Patterned Belt Buckle-Injury Presentation throughout the
Rockford Park Trial and upon direct appeal.201 Accordingly, Cabrera Trial
Counsel’s representation with respect to its objections did not fall below a standard
of reasonableness.
201
See Cabrera Trial Counsel Mot. in Limine Tr. 1/17/2001 at 13:11–13, 18:2–9; Trial Tr.
1/24/2001 at 28:19–31:1–4, 42:2–14 (objecting to the State’s late disclosure of its Patterned Belt
Buckle-Injury Presentation); Letter from Cabrera Trial Counsel to the Trial Court (Jan. 30,
2001), Cabrera Ex. 43 at 0208–09 (explaining that Cabrera Trial Counsel still objected to the
admissibility of the State’s Patterned Belt Buckle-Injury Presentation); Cabrera Direct Appeal,
840 A.2d at 1262 (noting that Cabrera renewed his objections to the State’s Patterned Belt
Buckle-Injury Presentation on direct appeal).
64
Also, contrary to Cabrera’s claim, Cabrera Trial Counsel was not ineffective
for failing to file a Daubert motion challenging the scientific method behind the
Medical Examiner’s Patterned Belt Buckle-Injury Presentation by photographic
overlay. In fact, Cabrera Trial Counsel made a strategic decision not to request a
Daubert hearing. Cabrera Trial Counsel’s strategic decision not to file a Daubert
motion offered the full-picture of the State’s Patterned Belt Buckle-Injury
Presentation to the jury, including the inconsistencies behind the methodology of
the State’s Patterned Belt Buckle-Injury Presentation, while also avoiding
speculation by the jury. Cabrera Trial Counsel’s strategy to rebut the State’s
Patterned Belt Buckle-Injury Presentation did not fall below an objective standard
of reasonableness. Accordingly, Cabrera cannot satisfy the first prong of
Strickland.
Prior to the Rockford Park Trial, the State presented State witness Mathis
with a belt line-up, which included the Patterned Belt Buckle. With respect to the
belt line-up, Cabrera claims ineffective assistance of counsel for failing to object to
this evidence. However, decisional law does not support the evidentiary challenge,
which Cabrera now claims that Cabrera Trial Counsel should have presented.
Accordingly, Cabrera Trial Counsel had no obligation to object to the State’s use
of a belt lineup including the Patterned Belt Buckle because there is no law
applying the principles of “pre-trial identifications of suspects” to “pre-trial
65
identifications of inanimate objects.” 202 The first prong of Strickland is not met.
Moreover, even if Cabrera Trial Counsel acted unreasonably with respect to the
Patterned Belt Buckle-Injury Presentation, Cabrera cannot show that he suffered
prejudice as a result.
Therefore, Cabrera’s postconviction claim that the State’s late disclosure of
the Patterned Belt Buckle-Injury Presentation violated Cabrera’s right to a fair trial
is procedurally barred and Cabrera’s accompanying claims of ineffective assistance
of counsel are without merit.
D. Claims Related to State’s Witness Mathis
A variety of Cabrera’s postconviction claims relate to Mathis as a State’s
witness. At the Rockford Park Trial, Mathis was called by the State as a witness
and testified that she met Cabrera around 1994. Mathis was hesitant but stated that
she and Cabrera had a sexual relationship “[s]poradically over . . . a year or
two.”203 Mathis admitted that she was familiar with the clothing Cabrera wore,
generally. The State showed Mathis the Patterned Belt Buckle and asked “can you
202
See Hughes v. State, 735 So. 2d 238, 261 (Miss. 1999) (concluding that “a line-up of
inanimate objects is not subject to the same constitutional restrictions which burden eyewitness
identifications of criminal defendants.”); Johnson v. Sublett, 63 F.3d 926, 932 (9th Cir. 1995)
(“There is no authority holding that a defendant's due process right to reliable identification
procedures extends beyond normal authenticity and identification procedures for physical
evidence offered by the prosecution.”); Com. v. Simmons, 417 N.E.2d 1193, 1195 (Mass. 1981)
(“No court to our knowledge has applied principles to pretrial identifications of suspects to
pretrial identifications of inanimate objects.”).
203
Trial Tr. 1/31/2001 at 32:19–20.
66
tell us what - - whether or not you have ever seen that type of belt before?”204
Mathis confirmed that that she had seen that type of belt before and, after
additional questioning, Mathis testified that the Patterned Belt Buckle “stood out . .
. . as something [Cabrera] would have worn back in the day, back then.” 205
At that point, the Trial Court called a sidebar conference to discuss the Trial
Court’s observations regarding Mathis’ reluctance to testify. 206 In response, the
State explained, “I think the problem here, Your Honor . . . [Mathis] believes she is
the mother of one of Luis Cabrera’s children. She also learned after the fact that
she is the daughter of . . . Rowe’s father. The dynamics make it very difficult for
her here.” 207 According to the State, Mathis learned this information after the
Rockford Park Murders.
Cabrera Trial Counsel began cross-examination. Mathis testified that State
Lead Investigating Officer contacted her seven or eight times by phone and two or
three times in person over the previous three to four weeks. According to Mathis,
approximately two weeks before trial began, State Lead Investigating Officer
showed Mathis a lineup of belts seized from the basement of Cabrera Sr.’s home.
Mathis testified that at least one belt was the style Cabrera could have worn but she
204
Id. at 35:5–7.
205
Id. at 35:7–36:1–9.
206
Id. at 38:1–5. The Trial Court explained, “It is [the Trial Court’s] observation and it is
reasonably obvious to [the Trial Court] that this young lady does not wish to be in this courtroom
testifying in this case.” Id. at 6–8.
207
Id. at 39:7–13.
67
could not be sure if Cabrera actually wore, or even owned, the belt in question at
the time of the Rockford Park Murders.
Cabrera was convicted on February 11, 2001. Thereafter, sometime in the
summer of 2001, Mathis and Cabrera began writing each other letters. In fact,
Mathis wrote Cabrera nearly twenty (20) letters in just over one month. 208 In the
meantime, in or about August 2001, Mathis began calling Cabrera Trial Counsel’s
office. After weeks of missed calls, on September 4, 2001, Mathis informed
Cabrera Trial Counsel that her testimony at the Rockford Park Trial was false, that
State Lead Investigating Officer encouraged her to testify falsely, and that now she
was trying to make things right. 209 Mathis met with Cabrera Trial Counsel on
September 17, 2001 and September 25, 2001. Both interviews took place in the
presence of Defense Investigator.
The September 17 interview was recorded and transcribed and is part of the
postconviction record. Mathis discussed certain letters she wrote to Cabrera.
Specifically, Mathis explained that she wrote Cabrera an apology letter for falsely
testifying at the Rockford Park Trial. According to Mathis, State Lead
Investigating Officer called Mathis one evening to discuss Cabrera’s case and
encouraged Mathis to testify untruthfully. According to Mathis, State Lead
Investigating Officer suggested that he was aware Cabrera fathered one of Mathis’
208
See Cabrera Motion for New Trial, 2003 WL 25763727, at *12.
209
See Aff. of John P. Deckers, Cabrera Ex. 68 at 0304–05.
68
children and other details of Mathis’ personal life, which information State Lead
Investigating Officer then used to solicit specific testimony from Mathis. For
instance, Mathis said State Lead Investigating Officer knew about her relationship
to Rowe and suggested that testimony against Cabrera could help bring closure to
the Rowe family. Mathis explained that State Lead Investigating Officer also
knew that Mathis’ brother was serving a life sentence in Florida and that it was
difficult for the Mathis family to visit her brother. According to Mathis, State
Lead Investigating Officer suggested that State Lead Investigating Officer could
get Mathis’ brother transferred to Delaware. Mathis also described the visit to her
home by State Lead Investigating Officer when he showed her belts seized from
Cabrera Sr.’s house.
On September 25, Mathis returned for a second interview. Mathis declined
to have the September 25 interview taped or transcribed. However, Defense
Investigator promptly summarized Mathis’ statements at the conclusion of the
interview. Defense Investigator’s notes are part of the postconviction record.
According to Defense Investigator’s summary, Mathis repeated that she testified
during the Rockford Park Trial at State Lead Investigating Officer’s urging.
Mathis stated that she knew State Lead Investigating Officer one to two years
before Cabrera’s arrest. She described a several-year periodic sexual relationship
she had with State Lead Investigating Officer because she wanted “a cop as an
69
ally.” Mathis also said that she had sexual relationships with other officers
introduced to her by State Lead Investigating Officer.
As a result of the information gleaned from the interviews with Mathis,
Cabrera Trial Counsel filed a motion for a new trial in July 2002. As a result, the
Delaware Supreme Court stayed Cabrera’s direct appeal pending the resolution of
the motion. On December 19, 2002, the Court held a hearing on Cabrera’s motion
for a new trial. Both Mathis and State Lead Investigating Officer appeared but
only State Lead Investigating Officer testified.
State Lead Investigating Officer denied knowing Mathis had a brother
imprisoned in Florida and denied offering to have Mathis’ imprisoned brother
transferred to Delaware. State Lead Investigating Officer also denied ever having
sex with Mathis or suggesting that Mathis have sex with any of his friends.
Mathis refused to testify at the hearing. Instead, Mathis invoked her right to
remain silent on the advice of counsel. Cabrera Trial Counsel argued that the trial
court should nonetheless admit Mathis’ statements from the September 17 and
September 25 interviews into evidence under an exception to the hearsay rule. On
April 3, 2003, the Trial Court issued a decision detailing why Mathis’ recantation
statements were inadmissible as hearsay and denying Cabrera’s motion for a new
trial.210 On direct appeal, the Delaware Supreme Court agreed that Mathis’
210
Cabrera Motion for New Trial, 2003 WL 25763727 (Del. Super. Apr. 3, 2003).
70
statements were inadmissible hearsay and that Mathis’ out-of-court-statements
lacked corroboration or sufficient “circumstantial guarantees of
trustworthiness.”211
In anticipation of a postconviction evidentiary hearing, Mathis signed a
sworn affidavit (“Mathis’ 2012 Affidavit”), 212 detailing her relationship with State
Lead Investigating Officer and confirming that State Lead Investigating Officer
coached her Rockford Park Trial testimony. Cabrera Rule 61 Counsel asked the
State if it would agree to the admissibility of Mathis’ 2012 Affidavit and, if not,
Cabrera Rule Counsel expressed its intent to seek an out-of-state deposition of
Mathis. The State did not respond to Cabrera Rule 61 Counsel. Instead, on
October 8, 2012, Cabrera Trial Counsel filed a motion to preclude Cabrera from
presenting any further evidence concerning Mathis. The Court granted the State’s
motion.213
1. Claims Related to Whether Mathis Should Have Been Granted
Immunity by the State in Connection with the Postconviction Challenge
to Her Testimony
Cabrera argues that his constitutional rights to compulsory process and due
process were violated because the State did not give Mathis immunity to testify
during the evidentiary hearing on Cabrera’s motion for a new trial. According to
211
Cabrera Direct Appeal, 840 A.2d at 1267–68.
212
Mathis’ 2012 Aff., Cabrera Ex. 76 at 0685–0691.
213
See Ev. Hr’g Tr. 10/9/2012 at 106:20–21; Ev. Hr’g Tr. 10/10/2012 at 3:14–15 (“I don’t see
any reason for any evidence.”).
71
Cabrera, it is a criminal defendant’s right to subpoena a witness and present that
witness in his defense. Cabrera argues that the State substantially interfered with
this right because it made thinly veiled threats to prosecute Mathis for perjury to
induce Mathis into invoking her privilege against self-incrimination. In support of
this claim, Cabrera relies upon Mathis’ 2012 Affidavit in which Mathis states, “If I
had been given immunity, I would have recanted my [Rockford Park T]rial
testimony.” 214
Cabrera’s immunity claim is not subject to Rule 61(i)(4). On direct appeal,
the Supreme Court considered whether the Trial Court properly ruled that Mathis’
recantation statements were inadmissible, not whether the State should have
granted Mathis immunity to testify regarding her statements. Accordingly,
Cabrera’s pending immunity-based postconviction claim was not formerly
adjudicated and therefore, not barred by Rule 61(i)(4). On the other hand, Cabrera
did not assert this immunity claim on direct appeal and, therefore, the immunity-
based claim is subject to procedural considerations under Rule 61(i)(3).
Accordingly, the Court shall consider the merits of Cabrera’s constitutional claims
and accompanying claims of ineffective assistance of counsel because ineffective
claims are not subject to the procedural bar of Rule 61(i)(3).
214
See Mathis’ 2012 Aff., Cabrera Ex. 76 at 0685, ¶ 2.
72
Cabrera presents a constitutional challenge and two claims of ineffective
assistance of counsel related to Cabrera’s immunity claim. First, Cabrera asserts
that Cabrera Trial Counsel’s failure to argue that the State should grant Mathis
immunity to testify in support of the motion for a new trial was ineffective
assistance of counsel. Second, Cabrera argues that Cabrera Trial Counsel failed to
investigate corroborating evidence for Mathis’ out-of-court statements that her
Rockford Park Trial testimony was false and that State Lead Investigating Officer
had coached her testimony.
Cabrera cannot establish that he was deprived of a “substantial constitutional
right [and therefore] entitled to any [postconviction] relief.” 215 As part of his
constitutional claim, Cabrera cites persuasive authority standing for the proposition
that “the State may not use threats or intimidating tactics that substantially interfere
with a witness’s decision to testify for a defendant.” 216 First, a review of the
record suggests Mathis invoked her privilege against self-incrimination at the
advice of counsel and not in response to any threats of prosecution for perjury from
the State. Second, because the Trial Court determined that Mathis’ Rockford Park
Trial testimony was true and her recantation statements were false, Cabrera is
unable to satisfy his burden of showing Mathis’ trial testimony was false in order
to justify a new trial. For the aforementioned reasons, Cabrera’s claim that his
215
Younger, 580 A.2d at 555.
216
State v. Feaster, 877 A.2d 229, 245 (N.J. 2005).
73
constitutional rights to compulsory process and due process were violated because
the State did not give Mathis immunity to testify is rejected by this Court.
2. Ineffective Assistance Claims Related to Mathis in Connection with
the Postconviction Challenge to Her Testimony at Rockford Park Trial
Cabrera argues that Cabrera Trial Counsel was ineffective for failing to
investigate Mathis, or question her during voir dire, before she testified at the
Rockford Park Trial. According to Cabrera, in failing to investigate Mathis,
Cabrera Trial Counsel failed to learn that, notwithstanding her testimony, Mathis
did not have a long-term relationship with Cabrera; she could not identify the type
of clothing Cabrera wore at the time of the Rockford Park Murders; and she was
engaged in a long-term sexual relationship with State Lead Investigating Officer.
However, Cabrera Trial Counsel did investigate Mathis. In fact, Cabrera
Trial Counsel’s investigator, Defense Investigator, interviewed Mathis on January
23, 2001. Defense Investigator’s report on the interview provides:
MILEKA MATHIS interview provides her relationship with
CABRERA and main police interest regarding belt buckles. She can’t
ID any particular belt. CABRERA is father of one of her children.
[CABRERA] doesn’t know this. She is to meet with AG’s office this
afternoon for interview. She was Rowe’s brother but never knew him.
She offers nothing regarding seeing ROWE or SAUNDERS prior to
their disappearance. Also, nothing said to her by CABRERA re: the
murders. 217
217
Defense Investigator’s Report to Cabrera Trial Counsel (Jan. 23, 2001), Cabrera Ex. 39 at
0195. See also Defense Investigator’s Report to Cabrera Trial Counsel (Jan. 23, 2001), Cabrera
Ex. 40 at 0196–97.
74
Cabrera’s postconviction claim relies on hindsight and unauthenticated,
alleged recantation statements by Mathis. Cabrera’s argument assumes that,
because Mathis did not offer Defense Investigator or Cabrera Trial Counsel the
information she now asserts years after Cabrera’s conviction, it can only mean that
Cabrera Trial Counsel failed to investigate her properly. Cabrera’s claim ignores
the fact that Cabrera Counsel did interview Mathis. This Court cannot and will not
find that Cabrera Trial Counsel acted objectively unreasonably because Mathis
responded to their interview questions in a manner consistent with Mathis’
Rockford Park Trial testimony but inconsistent with her unreliable and
inadmissible recantation statements. Cabrera cannot satisfy the Strickland test.
Cabrera argues that Cabrera Trial Counsel was ineffective for failing to
object to, or seek to strike, Mathis’ Rockford Park Trial testimony–and the State’s
Patterned Belt Buckle-Injury Presentation subsequently admitted–based on the
speculative nature of her testimony. Cabrera argues that Mathis only testified that
the Patterned Belt Buckle presented at the Rockford Park Trial was the type of belt
Cabrera would wear and not that Cabrera actually owned the Patterned Belt Buckle
at the time of the Rockford Park Murders. 218 Cabrera’s claim does not satisfy
Strickland because even if Cabrera Trial Counsel should have objected to the
speculative nature of Mathis’ testimony, Cabrera cannot show that he suffered
218
See Trial Tr. 1/31/2001 at 46:2–7, 47:2–5.
75
prejudice as a result of Cabrera Trial Counsel’s failure to object. As the Delaware
Supreme Court explained on direct appeal, “Mathis' trial testimony was weak and
related to only one small link among several implicating Cabrera in the crime[,]”219
and more importantly:
[P]olice had seized the belt from among Cabrera's personal effects at
Cabrera's father's residence, where Cabrera was living at the time of
the seizure. The required nexus may be established by circumstantial
evidence. Seizure of the belt from among Cabrera's personal effects
sufficiently demonstrated a connection between Cabrera and the
belt.220
Therefore, regardless of Cabrera Trial Counsel’s lack of direct objection to the
nature of Mathis’ testimony, the State presented enough circumstantial evidence to
link Cabrera to the Patterned Belt Buckle. Cabrera cannot satisfy the two prongs
of Strickland.
3. Ineffective Assistance Claims Related to Mathis in Connection with
the Postconviction Challenge to Her Testimony at the Postconviction
Hearing
Cabrera argues that Cabrera Trial Counsel was ineffective for failing to
argue that Mathis’ out-of-court statements were not hearsay because they were not
being offered for the truth. Rather, Cabrera contends Mathis’ out-of-court
statements were prior inconsistent statements being offered to impeach her
credibility. Cabrera’s argument attempts to avoid the fact that Mathis made out-of-
219
Cabrera Direct Appeal, 840 A.2d at 1268.
220
Id. at 1264.
76
court statements after the Rockford Park Trial and post-trial statements, by
definition, are not prior statements. Cabrera contends that this Court should
nonetheless consider Mathis’ post-trial statements as prior statements because
“Mathis’ statements preceded her expected testimony at the evidentiary hearing on
Mr. Cabrera’s motion for a new trial.”221 Cabrera offers no supporting law in
support of his contention that Cabrera Trial Counsel’s conduct was objectively
unreasonable.
Cabrera argues that Cabrera Trial Counsel was ineffective for failing to
argue the admissibility of Mathis’ out-of-court statements under 11 Del. C. § 3507.
Section 3507(a) provides, “In a criminal prosecution, the voluntary out-of-court
prior statement of a witness who is present and subject to cross-examination may
be used as affirmative evidence with substantive independent testimonial value.”
However, § 3507 was not applicable in this case because Mathis was not subject to
cross-examination. As the Delaware Supreme Court explained on direct appeal,
“Mathis became unavailable to testify when she invoked her Fifth Amendment
privilege at the evidentiary hearing.”222
The record reflects that Cabrera Trial Counsel tried to corroborate Mathis’
recantation statements. In its affidavit, Cabrera Trial Counsel stated it “ma[de]
efforts to corroborate Ms. Mathis’ various statements – not only the [Patterned Belt
221
Cabrera’s Reply 84 (Oct. 3, 2014) (emphasis added).
222
Cabrera Direct Appeal, 840 A.2d at 1267.
77
Buckle] claim, but all aspects of her statement.” 223 Cabrera Trial Counsel stated
that they were unsuccessful in their attempts to corroborate Mathis’ recantation
statements because Mathis persistently blocked access to persons who might have
corroborated her out-of-court statements.224 Cabrera Trial Counsel explained that
Mathis’ actions led it to believe Mathis’ statements “were curiously suspect.” 225
Cabrera cannot satisfy the Strickland test for either of the two ineffective
assistance of counsel claims related to Mathis. Cabrera’s argument focuses on the
prejudicial effect of Mathis’ failure to testify at the evidentiary hearing rather than
showing Cabrera Trial Counsel acted unreasonably. Failure to prove either prong
of Strickland will render the claim unsuccessful. While Mathis’ testimony may
have been prejudicial, Cabrera cannot demonstrate that the result of the proceeding
would have been different if she had not testified. Moreover, Cabrera Trial
Counsel cannot demonstrate that the performance of Cabrera Trial Counsel fell
below an objective standard of reasonableness. Accordingly, Cabrera has not met
the Strickland standard to demonstrate his claims of ineffective assistance of
counsel with respect to Mathis.
4. Claims Related to Alleged Overreaching by State Lead Investigating
Officer with Respect to Rockford Park Trial Testimony by Mathis
223
Cabrera Trial Counsel Aff. ¶ 16.
224
Id.
225
Id.
78
First, Cabrera asks this Court to reconsider the Trial Court’s decision to
preclude the introduction of evidence concerning Mathis and her Rockford Park
Trial testimony because Cabrera’s claims—as they relate to State Lead
Investigating Officer and perjured testimony—were not litigated previously and
lacked a developed factual record. Cabrera relies upon Mathis’ statements during
the September 17 and September 25 interviews, and Mathis’ 2012 Affidavit in
support of his contentions that State Lead Investigating Officer coached Mathis to
lie under oath and that the State knowingly used perjured testimony. Second, upon
consideration of Mathis’ 2012 Affidavit, Cabrera asks that his conviction
overturned because his conviction is the result of perjured evidence and, therefore,
must be set aside because there is a reasonable likelihood that the perjured
testimony could have affected the judgment.
In opposition, the State reiterates its position that Cabrera’s claim that
Mathis gave coerced testimony has been adjudicated and is therefore procedurally
barred under Rule 61(i)(4). In addition, the State argues that Cabrera’s claim that
the State knowingly used perjured testimony claim is barred under Rule 61(i)(3)
because it was not raised on direct appeal.
First, this Court will not reconsider the Trial Court’s decision to preclude the
introduction of evidence relating to Mathis and her Rockford Park Trial testimony.
This Court is satisfied that the Mathis issues have been adjudicated in connection
79
with Cabrera’s motion for a new trial and on direct appeal with the Delaware
Supreme Court. As discussed above, at the December 19, 2002 evidentiary
hearing on Cabrera’s motion for a new trial, Mathis invoked her rights under the
Fifth Amendment when asked if she testified truthfully at the Rockford Park Trial.
However, State Lead Investigating Officer testified at the hearing and denied all of
Mathis’ statements. Then, on direct appeal, the Delaware Supreme Court
specifically agreed with the Trial Court’s determination that Mathis’ out-of-court
statements lacked corroboration and sufficient “circumstantial guarantees of
trustworthiness.”226
Furthermore, Cabrera offers no new factual or legal developments to warrant
this Court’s reconsideration. Despite the fact that it was not proffered until 2012,
Mathis’ 2012 Affidavit fails to qualify as a new factual for purposes of the interests
of justice exception because it offers information available—and in fact
presented—during earlier proceedings. 227 As the Supreme Court aptly stated in its
2004 decision, “excluding the [Mathis] evidence does not pose a great risk of
miscarriage of justice, because Mathis’ [Rockford Park T]rial testimony was weak
and related to only one small link among several implicating Cabrera in the
226
Cabrera Direct Appeal, 840 A.2d at 1267–68 (noting the lack of corroborating circumstances
to support the truthfulness of Mathis’ statements and that nothing in the record indicated that
Mathis’ testimony was coerced or coached).
227
See id. at 1267–68; Flamer, 585 A.2d at 745–46. Cf. Weedon v. State, 750 A.2d 521, 527–29
(Del. 2000).
80
crime.”228 Accordingly, Cabrera’s request that this Court reconsider its decision to
preclude the introduction of evidence concerning Mathis and her Rockford Park
Trial testimony is hereby denied.
Second, Cabrera cannot demonstrate that his conviction is based on
testimony the State knew was perjured and, therefore, Cabrera’s associated claim
that his conviction should be overturned as a result fails. Not only is this claim
subject to procedural default under Rule 61(i)(3) because it was not raised on direct
appeal, but as the Delaware Supreme Court stated:
In order to meet the first prong, Cabrera had to show that Mathis' trial
testimony was false. The trial judge ruled that Cabrera failed to carry
this burden because the hearsay statements were inadmissible and the
other evidence at the hearing suggested that it was Mathis'
recantation, and not her trial testimony, that was false.229
Under these circumstances, and recognizing the limited role of Mathis’ testimony
at the Rockford Park Trial, Cabrera’s claim that State Lead Investigating Officer
suborned perjured testimony is procedurally barred under Rule 61(i)(3) and is
hereby denied.
IX. CABRERA’S POSTCONVICTION CLAIMS CHALLENGING
JURORS ARE PROCEDURALLY BARRED
A. Challenge to Death Qualification of Jurors is Procedurally Barred by Rule
61(i)(3) and There was No Miscarriage of Justice or Ineffective Assistance of
Counsel
228
Cabrera Direct Appeal, 840 A.2d at 1268 (emphasis added).
229
Id. at 1266 (emphasis added).
81
Cabrera argues that the State excused numerous qualified prospective jurors
for cause based upon the juror’s views on the death penalty in violation of
Cabrera’s constitutional right to trial by an impartial jury drawn from a fair cross-
section of the community. Further, Cabrera maintains that the Trial Court’s voir
dire misrepresented the law, caused unnecessary confusion, and eliminated
prospective jurors despite indications the juror could perform its juror duties
properly.
Cabrera did not challenge the death qualification of jurors during the
Rockford Park Trial or on direct appeal. Cabrera asserts that his failure to raise
this issue at the Rockford Park Trial or on appeal is because Cabrera Trial Counsel
was ineffective. Accordingly, the Court shall consider the merits of Cabrera’s
accompanying claim of ineffective assistance of counsel because ineffective claims
are not subject to the procedural bar of Rule 61(i)(3).
Rule 61(i)(3) bars relief if the motion includes claims not asserted in prior
proceedings leading to the final judgment. The procedural bars to postconviction
relief under Rule 61(i)(3) 230 can be overcome if the motion asserts a colorable
claim that there has been a “miscarriage of justice” as the result of a constitutional
violation that undermined the fundamental fairness of the proceedings. 231 This
230
This exception is also applicable to procedural bars to postconviction relief under Rule 61
(i)(1) and (2), but those bars are not relevant here.
231
Super. Ct. Crim. R. 61(i)(5); Younger, 580 A.2d at 555.
82
Court is satisfied that there was no miscarriage of justice with respect to jury
selection. Moreover, Cabrera has not demonstrated that Cabrera Trial Counsel was
ineffective with respect to jury selection.
Cabrera maintains that Cabrera Trial Counsel’s failure to object to the voir
dire and death qualification of the prospective jurors was ineffective assistance of
counsel. This claim does not satisfy Strickland. First, Cabrera’s claim merely
concludes that Cabrera Trial Counsel acted objectively unreasonably for failing to
raise these objections, which prejudiced Cabrera. Indeed, this claim is conclusory.
Second, even if Cabrera Trial Counsel did act objectively unreasonably, Cabrera
cannot demonstrate that he suffered actual prejudice.
Cabrera argues that striking qualified jurors in violation of the standards
established in Wainwright v. Witt,232 and Witherspoon v. Illinois, 233 constitutes
reversible error requiring “the vacation of a death sentence imposed by a jury”
from which the juror “has been erroneously excluded for cause.” 234 Cabrera
contends that twenty-two (22) prospective jurors were excused for cause on the
basis of the juror’s view on the death penalty but at least eight (8) of these jurors
unambiguously stated he or she could nonetheless follow the Trial Court’s
instructions and the juror’s oath to find the facts impartially and decide the case
232
469 U.S. 412 (1985).
233
391 U.S. 510 (1968).
234
Gray v. Mississippi, 481 U.S. 648, 659 (1987).
83
according to the law. The Court finds Cabrera’s argument unpersuasive. The
Delaware Supreme Court “has consistently upheld as constitutional the death
qualification process in Delaware.” 235 According to Delaware decisional law,
“justice is not served by allowing persons to sit on a jury in a capital case who are
unable to render an impartial verdict because of their opposition to the death
penalty.” 236 Even though the jury is not the final arbiters of punishment, it is
contrary to law to allow a juror to sit as the conscience of the community despite
personal views that would prevent the juror from impartially performing his or her
responsibilities. 237
Moreover, this Court rejects Cabrera’s application of the controlling
standard for qualifying a jury in a death penalty case. The Delaware Supreme
Court addressed this issue under similar circumstances in Gattis v. State.238 As the
Supreme Court explained, “the standard is not whether, under any conceivable set
of circumstances, the juror could never recommend the death sentence . . . . [but]
whether the juror’s views render the juror unable to comply with the trial court’s
235
Hobbs v. State, 538 A.2d 723, 725–26 (Del. 1988) (discussing the jury selection process
under 11 Del. C. § 3301 and the State’s interest in death qualifying jurors).
236
Gattis v. State, 697 A.2d 1174, 1181 (Del. 1997).
237
State v. Cohen, 604 A.2d 846, 855–56 (Del. 1992) (“Any personal views which would
prevent [jury] members from impartially performing this solemn responsibility in accordance
with the trial court’s instructions are impermissible and contrary to law.”). See also Gattis, 697
A.2d at 1181, 1182.
238
Gattis, 697 A.2d at 1180–82 (discussing a “death-qualified” jury).
84
instructions and her oath.”239 Upon review of the statements of the three jurors in
question, the Gattis Court concluded:
Each of the above three juror candidates expressed unambiguously
that she would not be able to recommend a sentence of death in this
case even if the facts and the law so allowed. In our view, [the
juror’s] statements show that each would be unable to put aside
personal feelings against the death penalty regardless of the evidence
or in deference to the rule of law. 240
Upon consideration of the record, this Court finds that the eight jurors who
expressed opposition to the death penalty in question were properly excused for
cause. Therefore, this Court finds that Cabrera’s constitutional claims and
accompanying claim of ineffective assistance of counsel with respect to jury
selection are procedurally barred without exception.
B. Cabrera’s Challenges to Three Seated Jurors Are Procedurally Barred by
Rule 61(i)(4) and There was No Miscarriage of Justice or Ineffective
Assistance of Counsel
Cabrera claims that his constitutional right to a verdict by an impartial jury
was violated as a result of three separate juror-related issues that occurred during
the Rockford Park Trial. Cabrera claims the Trial Court: (1) failed to declare a
mistrial-or dismiss Juror No. 8 who overheard someone say “I think [Cabrera’s]
guilty” during the first few days of the Rockford Park Trial; (2) improperly
addressed Juror No. 9’s indication that Cabrera’s wife “looked familiar;” and (3)
239
Id. at 1181.
240
Id. at 1182.
85
failed to dismiss Juror No. 5 after she indicated potential mental or physical
instability related to reaching a verdict in Cabrera’s case.
The Trial Court specifically reviewed and rejected these claims in 2008 in
connection with Cabrera’s request to conduct ex parte interviews of the jurors on
the premise that he was entitled to an impartial jury and a fair trial. 241 In its
decision denying Cabrera’s motion to interview the jurors, the Trial Court
discussed the conduct of Juror Nos. 5, 8, and 9 throughout the Rockford Park Trial,
which prompted Cabrera to seek leave to interview all of the jurors. The Trial
Court discussed the Trial Court’s actions at the time of the trial. Furthermore, the
Trial Court discussed the Rule of Professional Conduct that impeded Cabrera’s
ability to interview the jurors. The Trial Court denied Cabrera’s motion stating
that while Delaware’s Rules of Professional Conduct allowed for communication
with jurors at the Trial Court’s Ruling, such contact was inappropriate in this
case.242
Accordingly, the Court finds these claims are procedurally barred pursuant
under Rule 61(i)(4) because these claims have already been adjudicated. Under
Delaware decisional law, “[t]he determination of a juror’s impartiality is the
responsibility of the trial judge who has the opportunity to question the juror,
observe his or her demeanor, and evaluate the ability of the juror to render a fair
241
Cabrera Motion for Leave to Interview Jurors, 984 A.2d at 150.
242
Id. at 161, 169–70.
86
verdict.”243 Rule 61(i)(4) bars relief if the motion includes grounds for relief
formerly adjudicated in any proceeding leading to the judgment of conviction, in
an appeal, or in a postconviction proceeding. The procedural bar under Rule
61(i)(4)244 can be overcome if consideration of the claim on its merits is warranted
in the “interest of justice.” If the postconviction motion is procedurally barred and
neither exception applies, the Court should dispose of the motion because
postconviction relief is not “a substitute for direct appeal.” 245
Cabrera’s Rule 61 motion offers no new legal or factual information that
warrants reconsideration in the interest of justice. The presentation of these claims
is merely a restatement of claims already presented to the Trial Court and
adjudicated. Moreover, because Cabrera Trial Counsel did, in fact, raise these
challenges at the appropriate time during trial or in the early stages of
postconviction proceedings, counsel met the objective standard of reasonable
performance.
X. CABRERA’S CHALLENGES TO THE ALLEN CHARGE
ARE PROCEDURALLY BARRED
Around 5:30 p.m. on February 10, 2001, less than two days after
deliberations began, the jury foreman notified the Trial Court that the jury was in a
243
Weber v. State, 547 A.2d 948, 954 (Del. 1988).
244
This exception is also applicable to procedural bars to postconviction relief under Rule 61
(i)(2), but that bar is not relevant here.
245
Flamer, 585 A.2d at 745.
87
state of deadlock. At 6:00 p.m. on the same day, the Trial Court instructed the
jury to stop deliberations. At that time, the Trial Court provided the jury with an
Allen charge, consistent with requests made by the State and Cabrera Trial
Counsel. Following the Allen charge, the jury left the courtroom and resumed
deliberations on the following morning. On February 11, 2001, at 12:45 p.m., the
jury reached a verdict. The jury found Cabrera guilty of two counts of First
Degree Murder, two counts of Conspiracy in the First Degree, and other offenses.
A. Lack of Transition Language246 in Allen Charge
Cabrera argues that the Trial Court’s failure to include language in reference
to lesser-included offenses in the Allen charge in its jury instructions and violated
Cabrera’s constitutional rights. This matter was addressed on the record during an
office conference with the Trial Court, the State, and Cabrera Trial Counsel.247
During the office conference, Cabrera Trial Counsel specifically expressed concern
regarding the lack of transition language in the Trial Court’s Allen charge.
However, the Trial Court determined that, because its jury instructions already
246
Transition language informs a jury—which has been instructed on lesser-included offenses—
of the proper procedures under which that jury may consider the lesser-included offenses if, after
reasonable efforts, the jury cannot agree on the greater offense charged. See Smith v. State, 660
A.2d 395 (Del. 1995) (TABLE). See also Com. v. Hallman, 67 A.3d 1256, 1263 (Pa. 2013)
(referring to transition language as a “progression charge”); State v. Labanowski, 816 P.2d 26, 31
(Wash. 1991) (en banc) (explaining that “transition instructions” are also referred to as “retiring
instructions” or a “progression charge”).
247
See Office Conf. Tr. 2/10/2001 at 19:16–30:1–2 (discussing the Allen charge).
88
included an instruction on accomplice liability, there was no need for additional
transitional language during the Allen charge. Specifically, the Trial Court stated:
[T]ransition language at this point is legally inapplicable and
potentially confusing. Other than what has been stated in Chance,
[that the jury] ha[s] to decide. If [the jury] can’t decide [Cabrera] is
not the principal, [then Cabrera] is an accomplice. [The jury] ha[s] to
look at [Cabrera’s] culpability, his mental culpability what degree it
is.248
Cabrera’s pending postconviction claim is merely an attempt to reargue an
adjudicated matter and is therefore procedurally barred under Rule 61(i)(4).
Cabrera’s Rule 61 motion offers no new legal or factual information that warrants
reconsideration in the interest of justice. Cabrera alleges an accompanying claim
of ineffective assistance of counsel for failing to argue for transition language.
However, consistent with prevailing professional norms, Cabrera Trial Counsel did
request transition language but the Trial Court denied the request. Cabrera’s claim
is barred and no exception applies.
B. Coerciveness of the Allen Charge
Cabrera contends that the Allen charge was unduly coercive and violated his
right to a unanimous jury verdict in that the Trial Court instructed only jurors in the
minority to reconsider their position and unduly discussed the economic burden
involved in retrying the case. Cabrera asserts that such an instruction intimidated
dissenting jurors and compromised his right to a unanimous jury verdict.
248
Id. at 27:20–28:1–3.
89
Cabrera did not challenge the Allen charge during the Rockford Park Trial or
on direct appeal. The claim is therefore procedurally barred by Rule 61(i)(3). This
procedural bar can be overcome if there was a miscarriage of justice or by a
successful challenge to the ineffective assistance of counsel.
This Court finds that there was no miscarriage of justice in instructing the
jury to continue deliberations. The Trial Court instructions provided, “the [Trial]
Court does not wish any juror to surrender his or her conscientious convictions . . .
. each [juror] must decide the case for [them]selves . . . . [and r]emember, at all
times no juror is expected to yield . . . his or her conscientious conviction . . . . [i]t
is your duty to agree on a verdict if you can do so without violating juror’s
individual judgment and conscious.”249 Therefore, the Allen charge included
language that diminished any potential coercive effect from the minority
distinction alleged prejudicial by Cabrera.250
Also, Cabrera Trial Counsel’s representation was well within prevailing
professional norms. Cabrera Trial Counsel explained in connection with
postconviction proceedings that their request for the Allen charge was an
249
Trial Tr. 2/10/2001 at 32:16–23, 34:9–10 (emphasis added).
250
Id. at 30:4–35:1–15 (reading of the Allen charge to the jury). See Collins v. State, 56 A.3d
1012, 1020 (Del. 2012) (“The potential coercive effect of an Allen charge ‘can be eliminated by
having the charge include an admonition that each individual juror not surrender his or her
honest convictions and not return any verdict contrary to the dictates of personal conscience.’”)
(quoting Brown v. State, 369 A.2d 682, 684 (Del. 1976)).
90
appropriate tactical decision.251 Cabrera Trial Counsel determined that Cabrera
“had the best chance of success with this jury during this particular trial; Mr.
Cabrera agreed with that assessment.” 252
In addition, Cabrera argues that Cabrera Trial Counsel improperly excluded
Cabrera from the office conference discussing the jury deadlock and requesting the
Allen charge in violation of his Superior Court Criminal Rule 43 right to be
present. This claim does not satisfy Strickland. Pursuant to Rule 43(b)(3), the
presence of a criminal defendant is not required during “a conference or argument
upon a question of law.” The wording of an Allen charge is indeed a question of
law. 253 Cabrera Trial Counsel consulted Cabrera with respect to all significant trial
decisions, including this decision. Cabrera Trial Counsel stated that it “never made
any significant decision, tactical or otherwise, without consulting with Mr.
Cabrera.”254 In addition to consultation with counsel, Cabrera was present when
the Trial Court read the Allen charge to the jury.
Accordingly, Cabrera’s postconviction claim that the Allen charge was
unduly coercive and accompanying claims of ineffective assistance of counsel
must be dismissed on procedural grounds. This Court is satisfied that Cabrera
251
Cabrera Trial Counsel Aff. ¶ 13.
252
Id.
253
See Bradshaw v. State, 806 A.2d 131, 139 (Del. 2002). Indeed, the Bradshaw Court stated,
“It is hard to believe that [the defendant’s] presence, as distinct from that of his counsel, would
have influenced the wording of the Allen charges.” Id.
254
Cabrera Trial Counsel Aff. ¶ 13.
91
Trial Counsel acted in accordance with the prevailing decisional law, made tactical
decisions, and properly included and consulted Cabrera during the process.
Finally, the interest of justice exception does not apply.
XI. CABRERA IS NOT ENTITLED TO RELIEF IN CONNECTION
WITH THE STATE’S COMMENTS ON CABRERA’S ALLOCUTION
Cabrera argues that the Trial Court violated his constitutional rights by
failing to grant a mistrial when the State commented to the jury on Cabrera’s
failure to express remorse during his allocution. 255 Cabrera unsuccessfully
presented this argument on direct appeal and, therefore, the argument is
procedurally barred under Rule 61(i)(4). On direct appeal, the Supreme Court
applied the test articulated in Lesko v. Lehman, 256 to determine whether the State
had improperly commented on a defendant’s right to remain silent and concluded
that the State had not improperly commented on Cabrera’s allocution.257 Indeed,
the Supreme Court found that the State “essentially repeated verbatim what
Cabrera had said during allocution.” 258
255
Allocution is the formal court inquiry of defendant to ask whether he has any legal cause to
show why judgment should not be pronounced against him; or, whether he would like to make a
statement on his behalf and present any information in mitigation of sentence. Black’s Law
Dictionary 76 (6th ed. 1990).
256
925 F.2d 1527 (3d Cir. 1991).
257
Cabrera Direct Appeal, 840 A.2d at 1271–72.
258
Id. at 1271.
92
Cabrera now argues that the Supreme Court improperly relied on the Court’s
own decision in Shelton v. State, 259 to find that the State’s comments did not
violate Cabrera’s rights. However, while the Supreme Court did discuss the
Shelton case, the Court also specifically contrasted the circumstances in Shelton to
the circumstances of Cabrera’s allocution. 260 The Supreme Court stated that, “[i]n
Shelton, by contrast, the [State] specifically stated that the defendant had failed to
show any remorse.” 261 The Supreme Court noted a similarity between the cases,
concluding, “[A]s in Shelton, the [State]’s comments, to the extent they touched on
Cabrera’s lack of remorse at all, did so very briefly.” 262
Accordingly, Cabrera’s claim is procedurally barred from consideration on
the merits under Rule 61(i)(4). Cabrera’s Rule 61 motion lacks any new
information that warrants reconsideration on the merits in the interest of justice.
XII. JUSTICE WAS SERVED IN THE GUILT PHASE
OF CABRERA’S ROCKFORD PARK TRIAL
Pursuant to Rule 61(i)(5), procedural bars to postconviction claims are not
applicable to a “colorable claim that there was a miscarriage of justice because of a
constitutional violation that undermined the fundamental legality, reliability,
integrity or fairness of the proceedings leading to the judgment of conviction.”
259
744 A.2d 465 (Del. 1999).
260
Cabrera Direct Appeal, 840 A.2d at 1271–72.
261
Id. at 1271.
262
Id. at 1272.
93
Moreover, pursuant to Rule 61(i)(4), the Court must address any postconviction
claim that has been formerly adjudicated if “reconsideration is warranted in the
interest of justice.”
Not every constitutional violation merits relief under the “miscarriage of
justice” exception.263 A criminal defendant must present a colorable claim of a
constitutional violation that “undermined the fundamental legality, reliability,
integrity or fairness of the proceedings leading to the judgment of conviction.” 264
A colorable claim requires the showing of “sufficient facts . . . to take the
question past the frivolous state.”265 If Cabrera fails to assert a colorable claim,
then this Court will deny the claims on procedural grounds. Moreover, a criminal
defendant may trigger the interest of justice exception by presenting legal or
factual developments that have emerged subsequent to the conviction. 266 The
interest of justice exception is narrow in scope, however, to preserve the purpose of
Rule 61(i) procedural bars: achieving finality of judgments. 267
According to evidence presented during the Rockford Park Trial, Saunders
and Rowe were found dead in a wooded area in Rockford Park. The bodies were
discovered next to one another, face up, and covered by a burgundy-colored bed
263
Webster v. State, 604 A.2d 1364, 1366 (Del. 1992).
264
Super. Ct. Crim. R. 61(i)(5); Webster, 604 A.2d at 1366.
265
State v. Wharton, 1991 WL 138417, at *7 (Del. Super. June 3, 1991).
266
Flamer, 585 A.2d at 745–46; Weedon, 750 A.2d at 527–29 (discussing witness recantation as
a factual development for purposes of the interest of justice exception).
267
State v. Rosa, 1992 WL 302295, at *7 n. 10 (Del. Super. July 10, 1992).
94
sheet. The evidence presented against Cabrera in the Rockford Park Trial
supported the jury’s unanimous verdict of guilt beyond a reasonable doubt. In
addition to the evidence addressed in connection with the discussion of Cabrera’s
Rule 61 claims, there was additional evidence for the jury to consider.
A. Autopsy Reports
The autopsies revealed gunshot wounds to the backs of Saunders and
Rowe’s heads. The autopsy suggested that the men had been beaten, shot, and
dragged into the wooded area of the park where the bodies were eventually
discovered.
Rowe’s cause of death was determined to be a gunshot wound to the back of
the head. Rowe’s autopsy showed lacerations to the right eye and lower lip, and
revealed bruises to the abdomen and rib cage, which were determined to have
caused non-life threatening internal bleeding. The autopsy revealed what appeared
to be drag marks on Rowe’s lower-body. The drag marks were consistent with the
theory that the men had been dragged into the wooded-area of Rockford Park. The
Medical Examiner opined that Rowe suffered all non-gunshot injuries prior to the
fatal gunshot.
Saunders’ cause of death was determined to be a gunshot wound to the back
of the head. Unlike Rowe, Saunders did not suffer any face, torso, or internal
injuries. The Medical Examiner recovered a bullet from inside Saunders’ brain.
95
B. Ballistics Test
A ballistics test of the 38 Special Gun resulted in evidence that the bullets
fired from the 38 Special Gun matched the weapon that fired the bullet recovered
from Rowe’s body during the autopsy.
C. Cabrera’s Number in Memory Bank on Rowe’s Wristwatch
The police recovered an electronic wristwatch from Rowe’s body, with a
memory bank of phone numbers. A search of the memory bank recovered a phone
number listed for the residence of Cabrera Sr.
D. Rowe at Apartment Building Previously
Clavel Clamamont lived on the third floor of the Apartment Building.
During the Rockford Park Trial, Clamamont testified to knowing Cabrera as “Big
Louie.” Clamamont testified to knowing that Cabrera lived with Reyes, who was
known as “Little Louie.” 268 Clamamont testified that Cabrera and Reyes seemed
very close to each other. Clamamont testified that he recognized Rowe from the
autopsy photograph as someone she had previously seen outside of the Apartment
Building. 269
E. Saunders had Business Card with Cabrera’s Name and Number
During a search of Saunders’ home, police discovered a business card with
“434-6154 Big Lou” handwritten on its back.
268
Cabrera Sentencing, 2002 WL 484641, at *6.
269
Id. at *6.
96
F. Metal Shovel Belonged to Cabrera’s Neighbor
The police recovered a metal shovel at Rockford Park, near the bodies of
Saunders and Rowe. Donna Ashwell, Cabrera’s neighbor in the Apartment
Building, testified that she owned the shovel, which she kept outside in a common
area but that the shovel went missing around the time of the Rockford Park
Murders. 270 In its closing arguments, the State told the jury:
We know that someone tried to dig a grave. There is no contradiction
about this testimony. Similarly, you should not allow your common
sense to be contradicted on the point you can’t dig a grave without a
shovel. Donna Ashwell told us her shovel was missing. We don’t
know who tried to dig the grave, whether it was [Cabrera] or . . .
[Reyes] or both of them at separate times. But we know that someone
tried.271
G. Saunders’ Pager Sold by Cabrera
Saunders owned a pager protected with a blue pager case. During an
investigation on February 3, 1996, police found Saunders’ pager for re-sale at a
store in Wilmington, Delaware. 272 The store turned over a receipt of the pager-
return transaction which bore Cabrera’s signature. As a result, police turned its
investigative focus to Cabrera.
270
Cabrera Direct Appeal, 840 A.2d at 1261.
271
Closing Arg. Tr. 2/8/2001 at 53:23–54:1–9.
272
Police referenced a code on the inside of the pager and identified the pager as belonging to
Saunders.
97
H. Burgundy Bed Sheets Match
In April 1997, during the search of Cabrera Sr.’s house, the police seized a
burgundy-colored, fitted bed sheet in the basement, where Cabrera resided from
time to time. The FBI compared the fitted bed sheet with the bed sheet found
covering the bodies of Saunders and Rowe at Rockford Park. The comparison
revealed that the sheets were the same color, made by the same manufacturer, and
both had been sold at J.C. Penney. Stephanie Cabrera testified that she and
Cabrera owned a similar set of burgundy-colored sheets and that, when she moved
out of the Cabrera Marital Apartment, she left the sheets with Cabrera.
I. Loud Voices on the Night of the Rockford Park Murders
Donna Ashwell lived on the first floor of the Apartment Building. During
the Rockford Park Trial, Ashwell testified that one Saturday evening in January
1996, she heard an argument in the shared basement of the Apartment Building
sometime before 9:30 or 10:00 o’clock at night. Ashwell testified that she moved
to the basement door to investigate after recognizing Cabrera’s voice. Ashwell
testified that she eventually overheard a loud crash. Ashwell saw Reyes and
inquired about the noise coming from the basement. Reyes reportedly informed
Ashwell “they would leave.” Later that evening, Cabrera apologized to Ashwell
for the noise.
98
Upon consideration of the entire record, this Court finds there was no
miscarriage of justice pursuant to Rule 61(i)(5) and that reconsideration of
otherwise procedurally barred claims is not warranted in the interest of justice
pursuant to Rule 61(i)(4). The fundamental legality, reliability, integrity and
fairness of the proceedings leading to Cabrera's conviction and sentencing are
sound.
XIII. CABRERA IS NOT ENTITLED TO RELIEF
FOR BRADY VIOLATION(S)
Cabrera’s Rule 61 motion argues that the State violated his constitutional
rights by failing to disclose certain exculpatory evidence, including impeachment
evidence concerning Keith Powell; exculpatory statements made by Sparkle
Harrigan; and exculpatory information provided by Carlos Rodriguez concerning
Omar Colon’s alleged involvement in the Rockford Park Murders. Cabrera
contends that the cumulative effect of these Brady violations undermine
confidence in the outcome of the Rockford Park Trial. Cabrera is not entitled to a
new trial on the grounds of cumulative Brady violations because, for the reasons
that follow, Cabrera has not demonstrated the existence of even a single Brady
violation.
A. Keith Powell
During the Rockford Park Trial, Cabrera Trial Counsel presented Powell as
a witness to contradict the State’s timeline for the Rockford Park Murders of
99
Saunders and Rowe. On cross-examination, the State used Powell’s prior
inconsistent statements to the police to undermine his credibility as a witness.
However, the State had not disclosed Powell’s prior statements to Cabrera Trial
Counsel.
On direct appeal, Cabrera argued, “the State’s disclosure of Powell’s
exculpatory statements coupled with its withholding of information of Powell’s
inconsistent statements and other impeaching evidence, constituted a Brady
violation that violated Cabrera’s due process rights.”273 The Delaware Supreme
Court determined that Powell’s direct testimony tended to show that Cabrera was
with Saunders and Rowe late in the evening on the night of their deaths,
contradicting the State’s theory that the Rockford Park Murders happened early in
the evening. 274 However, the Supreme Court concluded the State’s undisclosed
evidence undermined Powell’s credibility “by demonstrating that [Powell] was
frequently under the influence of drugs” and that Powell “could not remember
whether he had been with the victims on the evening of their deaths or on an earlier
evening.” 275 Therefore, because “[e]vidence tending to undermine the credibility
of a witness who testified in favor of the defense is not favorable to the defense[,]”
the Supreme Court ruled that the undisclosed Powell information did not qualify as
273
Cabrera Direct Appeal, 840 A.2d at 1268.
274
Id. at 1270.
275
Id.
100
Brady material.276 Because the State was not required to disclose the information,
no Brady violation had occurred.277 In addition, the Supreme Court rejected
Cabrera Trial Counsel’s claim that “the State lured [Cabrera Trial Counsel] into a
trap by providing partial disclosure of what [the State] knew about Powell[,]”278
and that they were misled or unfairly surprised by the State’s evidence impeaching
Powell is without merit.279
Cabrera’s pending postconviction claim alleging a Brady violation with
respect to Powell is merely a renewal of a formerly adjudicated claim and is
therefore subject to procedural bar under Rule 61(i)(4). Cabrera’s Rule 61 motion
lacks any new legal or factual information to warrant reconsideration of this issue
in the interest of justice. Therefore, Cabrera’s claim is procedurally barred as
formerly adjudicated under Rule 61(i)(4) without exception.
Cabrera asserts an accompanying claim of ineffective assistance of counsel
on the grounds that Cabrera Trial Counsel was ineffective for failing to adequately
investigate Powell and in failing to use an investigator to interview him. Cabrera’s
claim is inconsistent with the record. According to Cabrera Trial Counsel’s
affidavit responding to Cabrera’s claims of ineffective counsel:
276
Id. (emphasis added). “[T]he State must disclose impeachment material only if it impeaches
evidence that is favorable to the State.” Id. at 1269.
277
Id. at 1269.
278
Id. at 1268.
279
Id. at 1270 (adding that “[t]he State had disclosed the exculpatory information about Powell
and his statements to police.”).
101
Mr. Powell was a difficult person to track down. We had an address
of 1014 W. 7th Street, but we were also given other addresses by
neighbors. We reviewed all available Superior Court and Court of
Common Pleas documents pertaining to Mr. Powell prior to
interviewing him. (None of these documents led us to believe that
Mr. Powell was an out-of-control drug addict at the time of his police
interview.) We made repeated efforts to contact Mr. Powell prior to
and during the [Rockford Park T]rial. A number of proposed
meetings were either missed or cancelled by Mr. Powell. While our
[Defense Investigator] was available to assist us throughout the
[Rockford Park T]rial, we discovered a brief window of opportunity
to track down and meet with Mr. Powell . . . . We took advantage of
that immediate opportunity, and met with him ourselves. On January
22, 2001, Mr. Deckers again spoke with Mr. Powell (beginning at
approximately 6:00 p.m.). Mr. Deckers reviewed with Powell the
statement that had been provided to us by the State. [Cabrera Trial]
Counsel recollect that, on direct examination, Mr. Powell testified
fairly consistent with what he had previously told us . . . . Mr. Powell
was an unresurrectable phoenix not because we didn’t have [Defense
I]nvestigator with us when we spoke to him; rather, we had no way to
anticipate the State’s tactics and, specifically, the withheld
information.280
Cabrera Trial Counsel met reasonable performance standards in connection with
their efforts to locate Powell and present his testimony as part of the defense case.
Second, the fact that Cabrera Trial Counsel interviewed Powell without an
investigator present is not ineffective assistance of counsel per se. 281 Cabrera Trial
Counsel’s affidavit explains the “immediate” circumstances during which Cabrera
Trial Counsel could meet with and interview Powell. Cabrera fails to offer any
reason for this Court to conclude that if Defense Investigator had also been
280
Cabrera Trial Counsel Aff. ¶ 9 (emphasis added).
281
See ABA Guidelines, supra note 34, § 11.4.1 (providing that defense counsel should conduct
witness interviews in the presence of a third person).
102
available under the “immediate” circumstances, then Powell would have offered
Cabrera Trial Counsel different information or that it would have changed the
outcome.
Third and finally, Cabrera Trial Counsel met with Powell twice and
determined that Powell provided “fairly consistent” information. Cabrera Trial
Counsel testified at the postconviction evidentiary hearing that, upon interviewing
Powell, they believed “Powell would be a good witness. He was working. He had
indicated, I believe, that he had had a drug problem, but he was not on drugs. He
was holding a full-time job, and he appeared to be clean cut[.]” 282
The Court notes that, upon consideration of Cabrera’s claim on direct
appeal, the Supreme Court declined to conclude that the State’s impeachment
evidence regarding Powell surprised Cabrera Trial Counsel.283 This Court finds
that, while Powell was difficult track down, he presented consistent and helpful
information. Cabrera cannot satisfy Strickland.
B. Sparkle Harrigan
Harrigan was the girlfriend of Saunders at the time of the Rockford Park
Murders. Harrigan provided two statements to the police regarding a timeline of
her interactions with Saunders on the night he was killed. According to Cabrera,
Harrigan’s timeline of the events on the night of the Rockford Park Murders was
282
Ev. Hr’g Tr. 10/23/2012 at 11:16–20 (emphasis added).
283
See Cabrera Direct Appeal, 840 A.2d at 1269–70.
103
different from the State’s timeline at Cabrera’s Rockford Park Trial. Cabrera
argues that Harrigan’s statements were therefore exculpatory and that the State
committed a Brady violation because it did not disclose the statements to Cabrera
Trial Counsel.
Cabrera did not assert this argument on direct appeal and, therefore, the
claim is subject to procedural bar under Rule 61(i)(3). Cabrera has not asserted
any external impediment that prevented Cabrera Trial Counsel from raising this
argument on direct appeal. In addition, the Court notes that Cabrera did not assert
an accompanying claim of ineffective assistance of counsel for Cabrera Trial
Counsel’s failure to assert this claim on direct appeal. Nonetheless, Cabrera’s
claim fails on the merits because the Harrigan’s statements were not exculpatory
and, therefore, no Brady violation occurred.
Harrigan testified at Reyes’ trial regarding the Rockford Park Murders but
not at Cabrera’s Rockford Park Trial. Harrigan testified consistently with her
earlier statements to the police. On direct examination, Harrigan stated that she
was with Saunders at his home on the evening of Saturday, January 20, 1996.
Harrigan testified that she arrived at Saunders’ house around 9:00 p.m. and stayed
for about two hours.284 At some point during her visit, Harrigan testified that
Saunders stepped out of the bedroom to talk to [Rowe], who had just allegedly
284
Reyes’ Trial Tr. 10/11/2001 at 66:4, 67:3–8, State’s App. at B-115–120.
104
arrived at Saunders’ house. Harrigan did not see [Rowe] but recalled that she
“could hear voices, but . . . wasn’t paying attention to what they were saying.”285
On cross-examination, Harrigan admitted that she didn’t know the exact
time she arrived or left Saunders’ house. Harrigan admitted that she could have
arrived anytime between 8:30 and 9:00 p.m. 286 Harrigan testified that she left
Saunders’ house because her grandmother paged her to come home and that she
received the page sometime after 9:30 but before 10:00 p.m. 287 Harrigan left
Saunders’ house five to ten minutes after receiving the page. 288
Cabrera argues that Harrigan stated that she was at Saunders’ house from
9:00–11:00 p.m. and that Rowe stopped by at some point during that time and,
therefore, her statements discredit the State’s timeline of events. This Court does
not agree that Harrigan’s statements to police, or testimony at Reyes’ trial
regarding the Rockford Park Murders, discredit the State’s timeline of events or
qualify as Brady material.
According to the record, the State’s timeline of events was based on
estimates and generalities. For instance, in its closing arguments that State offered
vague references to the timeline, such as: “What Donna Ashwell told you is that
she is absolutely certain that on Saturday night, before the Sunday morning on
285
Id. at 69:9–10.
286
Id. at 81:2–84:1–19.
287
Id. at 86:5–87:1–21.
288
Id. at 89.
105
which [Saunders] and [Rowe’s] bodies were found [Ashwell] overheard coming
from the basement the sounds of a terrible beating.” 289 In fact, earlier during the
Rockford Park Trial, State Lead Investigating Officer testified that Ashwell made a
statement to police that she had heard sounds from the Apartment Building
basement at 8:00, 9:00, or even later than that.290 The State continued its closing
argument, “What do we know about what happened on the night of January 20,
early morning hours of January 21.”291 The State’s timeline was more general
than exacting. Harrigan’s estimated timeline of events did not directly conflict
with Ashwell’s estimated timeline, nor did Harrigain’s statements qualify as
exculpatory.
Exculpatory evidence is such that “tends to justify, excuse of clear the
defendant from alleged fault or guilty.” 292 Here, Harrigan made statements
concerning her estimate of the timing of events on the night of the Rockford Park
Murders. The fact the Harrigan recalled a timeline that overlapped portions of
Ashwell’s timeline does not go to Cabrera’s guilt or innocence. In addition,
Harrigan’s statements are not favorable to the defense because the State did not
offer a specific time that the Rockford Park Murders occurred. Accordingly,
289
Closing Arg. Tr. 2/8/2001 at 44:16–20 (emphasis added).
290
Trial Tr. 2/2/2001 at 5:10–15, 6:9–12.
291
Closing Arg. Tr. 2/8/2001 at 48:7–8 (emphasis added).
292
Black’s Law Dictionary 566 (6th ed. 1990). See Wright v. State, 91 A.3d 972, 977 (Del.
2014) (“A Brady violation occurs where the State fails to disclose material evidence that is
favorable to the accused, because it is either exculpatory or impeaching, causing prejudice to the
defendant.”).
106
Cabrera’s claim of a Brady violation with respect to the statements of Harrigan has
no merit.
C. Carlos Rodriguez and Omar Colon
Carlos Rodriguez and Omar Colon were arrested in April 2001 for drug
charges unrelated to the Rockford Park Murders (“2001 Unrelated Drug Charges”).
After his arrest, Rodriguez served as a police informant. Cabrera contends that
while the 2001 Unrelated Drug Charges were pending, Rodriguez told the Deputy
Attorney General exculpatory Brady information about the Rockford Park Murders
that the State failed to disclose. Specifically, Cabrera contends that Rodriguez told
the Deputy Attorney General that Rodriguez’s cousin Colon was responsible for
the Rockford Park Murders.
Cabrera did not present this claim on direct appeal but this claim is not
subject to a procedural bar under Rule 61(i)(3) because Cabrera Trial Counsel was
unaware of the alleged existence of this information until 2012. Accordingly,
Cabrera has demonstrated an external impediment that prevented Cabrera Trial
Counsel from raising this argument in an earlier proceeding. In addition, this
information may qualify as Brady material and Cabrera may be able to
demonstrate that he was prejudiced without it.
However, upon consideration of the record, this Court cannot conclude that
the State ever possessed Brady information as alleged by Cabrera. There is no
107
evidence to corroborate the recollection of the Deputy Attorney General who
interviewed Rodriguez in 2001 and the record reflects that the Deputy Attorney
General is not even sure if her memory was accurate about the 2001 comment.293
Moreover, investigating officers were present for the interview and they testified
that they did not recall Rodriguez making the comment. Also, Cabrera Rule 61
Counsel deposed Rodriquez in November 2014 and he himself does not remember
making such a proffer against Colon.294 Rodriguez stated that even if he had made
a statement regarding Colon’s involvement in the Rockford Park murders it was
nothing more than a rumor or personal opinion. 295
Accordingly, this Court finds that the suggested proffer by Colon is illusory,
not supported by the record, and therefore not exculpatory.
Cabrera’s claims of Brady violations concerning Powell, Harrigan, and
Rodriguez do not have merit. Cabrera has not demonstrated the existence of a
single Brady violation. Therefore, Cabrera is not entitled to a new trial on the
grounds of the cumulative effect of multiple Brady violations.
XIV. JOINT SENTENCING BY THE TRIAL COURT DID NOT VIOLATE
CABRERA’S RIGHT TO INDIVIDUALIZED SENTENCING
A criminal defendant’s right to be free from cruel and unusual punishment
includes the right to an individualized determination that the defendant should
293
Ev. Hr’g Tr. 4/1/2013 at 77:3–5.
294
Rodriguez Dep. Tr. 11/14/2012 at 50:20–25, State’s App. at B-183–206.
295
See id. at 17–19, 36, 41, 49, 51, 60–61.
108
receive the death penalty. 296 Cabrera argues that he did not have the benefit of
individualized sentencing because the Trial Court issued a joint sentencing
decision addressing Cabrera and Reyes. More importantly, Cabrera objects to
consideration by the Trial Court of information presented at Reyes’ trial regarding
the Rockford Park Murders but not presented at Cabrera’s Rockford Park Trial. 297
Cabrera contends that he was prejudiced because he was depicted at Reyes’ trial as
298
the more culpable conspirator. According to Cabrera, he was denied due
process because he “had no opportunity to deny or explain” the presentation made
at Reyes’ trial. 299
Cabrera did not challenge the Trial Court’s joint sentencing decision on
direct appeal and, therefore, the claim is subject to procedural considerations under
Rule 61(i)(3) which bars relief if the motion includes claims not asserted in prior
proceedings leading to the final judgment. The procedural bars to postconviction
296
U.S. Const. amend. VIII; Del. Const. art. I, § 2; Zant v. Stephens, 462 U.S. 862, 879 (1983).
297
See e.g., Cabrera Sentencing, 2002 WL 484641, at *8 (“In Reyes’ trial, however, there was
some additional evidence. Most notable were statements which Reyes made.”); id. at *10
(“[T]here are some significant additional details introduced into evidence in the Reyes trial.”); id.
at *20 (“The motive in Cabrera’s trial and hearing was not as fully developed as in Reyes’ trial
and hearing.”).
298
See id. at at *3 (“The malignant influence of [Cabrera] on the life and actions of [Reyes].
During [Reyes] teenage years, [Cabrera] served as a father figure for [Reyes]. [Reyes] felt
compelled to participate in criminal acts with [Cabrera] in order to gain his love and respect.”).
299
See Gardner v. Florida, 430 U.S. 349, 362 (1977) (finding that the defendant “was denied
due process of law when the death sentence was imposed, at least in part, on the basis of
information which he had no opportunity to deny or explain.”).
109
relief under Rule 61(i)(3) 300 can be overcome if the motion asserts a colorable
claim that there has been a “miscarriage of justice” as the result of a constitutional
violation that undermined the fundamental fairness of the proceedings. 301
There was no miscarriage of justice with respect to issuance of a joint
sentencing decision. The Trial Court properly addressed the statutory and non-
statutory aggravating factors as to each defendant 302 before discussing the non-
statutory aggravating factors as well as the mitigating factors as to Cabrera and
Reyes, separately. 303 Also, the Trial Court properly weighed the aggravating and
mitigating circumstances as to each defendant individually. 304 This Court is
satisfied that the Trial Court’s joint sentencing decision did not violate Cabrera’s
constitutional right to individualized sentencing and there was no miscarriage of
justice.
Cabrera also asserts a related claim of ineffective assistance of counsel
against Cabrera Trial Counsel for the failure to object to the same judge presiding
over both Cabrera’s and Reyes’ trials regarding the Rockford Park Murders.
According to Cabrera, had Cabrera Trial Counsel objected, then at least “the
evidence from Mr. Reyes’[] trial would not have been considered in sentencing
300
This exception is also applicable to procedural bars to postconviction relief under Rule 61
(i)(1) and (2), but those bars are not relevant here.
301
Super. Ct. Crim. R. 61(i)(5); Younger, 580 A.2d at 555.
302
Cabrera Sentencing, 2002 WL 484641, at *9–13.
303
Id. at *13–19.
304
Id. at *20–22.
110
Mr. Cabrera, and there is a reasonable probability that Mr. Cabrera would have
received a different sentence.” 305
Cabrera cannot demonstrate that representation by Cabrera Trial Counsel fell
below an objective standard of reasonableness and, therefore, cannot satisfy the
Strickland requirements for relief. As the Delaware Supreme Court explained in
Jackson v. State, 306 “[a]s a necessary consequence of their evidentiary gatekeeping
function, trial judges hear, see, and make judgments about inadmissible evidence
regularly.” 307 The Jackson Court explained that “review mechanisms exist to
protect defendants in cases where the fact finder hearing of inadmissible evidence
is so prejudicial as to create an unacceptable ‘appearance of impropriety’ that
could test reasonable lay persons’ trust in the judicial system.” 308 A single judge
presiding at separate trials of co-defendants, even after those trials are severed,
does not violate the rights of either defendant. A challenge of the assignment to
one judge would not have been consistent with prevailing professional norms. 309
Accordingly, Cabrera is not entitled to postconviction relief because he had
the benefit of individualized sentencing; there was no miscarriage of justice; and
305
Cabrera’s Opening Br. 179 (Apr. 14, 2014).
306
Jackson v. State (Jackson 2011), 21 A.3d 27 (Del. 2011).
307
Id. at 37–38.
308
Id. at 38.
309
In fact, in the interest of fairness, it is appropriate for a judge to consider the relative
sentences of co-defendants while sentencing. Thus, here the judge should have considered
Reyes’ sentence during the sentencing of Cabrera even if there were separate penalty hearings.
See State v. Zebroski, 1997 WL 528287, at *16 (Del. Super. Aug. 1, 1997) aff’d and remanded,
715 A.2d 75 (Del. 1998).
111
Cabrera Trial Counsel’s representation did not fall below an objective standard of
reasonableness.
XV. CABRERA IS NOT ENTITLED TO RELIEF ON BASIS OF
HIS GENERAL CONSTITUTIONAL OBJECTIONS
TO DELAWARE’S DEATH PENALTY STATUTE
Cabrera’s Rule 61 motion argues that this Court must vacate his death
sentence because the Delaware’s 1991 death penalty statute is unconstitutional. In
his direct appeal, Cabrera presented these same constitutional objections, and the
Delaware Supreme Court rejected these claims. The Delaware Supreme Court,
upon Cabrera’s direct appeal from his jury conviction following the Rockford Park
Trial, specifically addressed Cabrera’s claims regarding the constitutionality of
Delaware’s death penalty. The Supreme Court found no reversible error and no
basis to vacate Cabrera’s death sentence. The Court specifically rejected Cabrera’s
argument that Delaware’s death penalty statute improperly gave the Trial Court the
sole power to sentence Cabrera to death. In addition, the Supreme Court
concluded that the Trial Court properly charged the jury during the penalty phase
of the Rockford Park Trial.310
310
Cabrera Direct Appeal, 840 A.2d at 1272–74. The Trial Court told the jury that:
[W]hile the [Trial] Court has the ultimate responsibility for imposing sentence on
the defendant, your role as jurors in the sentencing procedure is, nevertheless,
both vital and important. You will provide the [Trial] Court, as the conscience of
the community, with an advisory opinion on what the jury believes the evidence
has shown with regard to the appropriate penalty in this case. Although the [Trial]
Court is not bound by your recommendation, your recommended answers to the
112
Rule 61(i)(4) bars relief if the motion includes grounds for relief formerly
adjudicated in any proceeding leading to the judgment of conviction, in an appeal,
or in a postconviction proceeding. The procedural bar under Rule 61(i)(4) 311 can
be overcome if consideration of the claim on its merits is warranted in the “interest
of justice.”
The Delaware Supreme Court has consistently upheld the constitutionality of
the Delaware Death Statute, including in Cabrera’s own case. 312 Under the
Delaware capital punishment scheme, the trial judge of the Superior Court bears
the ultimate responsibility for imposition of the death sentence. 313 The jury acts in
an advisory capacity as the conscience of the community in determining whether
questions provided will be given great weight by the [Trial] Court in its final
determination of the appropriate sentence.
Id. at 1274.
311
This exception is also applicable to procedural bars to postconviction relief under Rule 61
(i)(2), but that bar is not relevant here.
312
See e.g., Swan v. State, 820 A.2d 342 (Del. 2003) (holding that a jury’s conviction of a
defendant unanimously and beyond a reasonable doubt for a crime that itself established a
statutory aggravating circumstance satisfied the constitutional requirements set forth in Ring v.
Arizona, 536 U.S. 584 (2002), by providing a determination of the actor that rendered the
defendant “death eligible”); Brice v. State, 815 A.2d 314 (Del. 2003) (upholding the 2002
version of 11 Del. C. § 4209, noting that “[t]he 2002 Statute transformed the jury’s role . . . from
one that was advisory under the 1991 version . . . into one that is now determinative as to the
existence of any statutory aggravating circumstances.”); Ortiz v. State, 869 A.2d 285, 305 (Del.
2005) (stating that the Delaware Supreme Court “adhere[s] to [its] holding in Brice that
Delaware's hybrid form of sentencing, allowing the jury to find the defendant death eligible and
then allowing a judge to impose the death penalty once the defendant is found to be death
eligible, is not contrary to the Sixth Amendment of the United States Constitution[.]”); Cabrera
Direct Appeal, 840 A.2d at 1272–74.
313
11 Del. C. § 4209(d); Brice, 815 A.2d at 320 (explaining that final sentencing decision rests
with the sentencing judge under the 1991 and 2002 version of 11 Del. C. § 4209).
113
the death penalty is the appropriate punishment and through its recommendation,
plays an integral role in the sentencing result.314
These claims are barred pursuant to Rule 61(i)(4) and reconsideration is not
warranted in the interest of justice. Cabrera has not presented new legal or factual
development to warrant this Court’s reconsideration on the merits. 315 To the extent
Cabrera alleges the ineffective assistance of counsel for failing to raise any specific
issue related to the Delaware Death Statute, Cabrera’s claim does not satisfy
Strickland. Cabrera has not demonstrated that Cabrera Trial Counsel’s
representation fell below an objective standard of reasonableness because Cabrera
Trial Counsel acted reasonably and in accordance with Delaware law.
XVI. CONCLUSION
Cabrera was entitled to have the extensive mitigating evidence presented to a
jury for its consideration in reaching a sentencing recommendation. 316 The Court
finds that Cabrera Trial Counsel provided ineffective assistance of counsel with
respect to the mitigation investigation, the lack of preparation for the penalty
phase, and the inaccurate presentation of Cabrera’s childhood and upbringing.
Under Strickland, the appropriate remedy is for the Court to vacate Cabrera’s death
314
Jackson v. State, 684 A.2d 745, 749 (Del. 1996). See also Witherspoon, 391 U.S. at 519–20.
315
After briefing was completed, Cabrera Rule 61 Counsel moved to stay the postconviction
proceedings on the grounds that the United States Supreme Court granted certiorari in Florida v.
Hurst, 135 S. Ct. 1531 (Mar. 9, 2015). This Court denied the motion to stay after oral argument.
316
See 11 Del. C. § 4209.
114
sentence. The fundamental legality, reliability, integrity and fairness of the
proceedings leading to Cabrera's convictions and sentencing are otherwise sound.
NOW, THEREFORE, this 17th day of JUNE, 2015, the Postconviction
Motion of Luis G. Cabrera, Jr. is GRANTED in part and DENIED in part.
The death sentence imposed by Order dated March 14, 2002 is hereby
VACATED. This Court finds that the fundamental legality, reliability,
integrity and fairness of the proceedings leading to Cabrera’s convictions and
sentencing are otherwise sound and do not merit relief.
IT IS SO ORDERED.
Andrea L. Rocanelli
___________________________________
The Honorable Andrea L. Rocanelli
115