IN THE SUPREME COURT OF THE STATE OF DELAWARE
DERRICK POWELL, §
§ No. 3 1 0, 201 6
Defendant Below, §
Appellant, § Court Below_Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 0909000858
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: December 7, 2016
Decided: December 15, 2016
Before STR]NE, Chief Justice, HOLLAND, VALIHURA, VAUGHN, and
SEITZ, Justices, constituting the Court en Banc.
Upon Motion to Vacate Death Sentence. GRANTED.
Patrick J. Collins, Esquire (Arguea'), Collins & Associates, Wilmington, Delaware;
Natalie S. Woloshin, Esquire, Woloshin, Lynch & Natalie, Wilmington, Delaware,
Attorneys for Defendant Below, Appellant.
Elizabeth R. McFarlan, Esquire, John R. Williams, Esquire (Argued), Departrnent
of Justice, Wilmington, Delaware, Attorneys for Plaintiff Below, Appellee.
Herbert W. Mondros, Esquire, Margolis Edelstein, Wilrnington, Delaware; Edson
A. Bostic, Esquire, Tiffani D. Hurst, Esquire, Jenny Osborne, Esquire, Off1ce of the
Public Defender, Wilmington, Delaware.
Thomas C. Grimrn, Esquire, Rodger D. Smith II, Esquire, Morris, Nichols, Arsht &
Tunnell LLP, Wilmington, Delaware, Attorneys for Amicus Curiae, Luis G. Cabrera,
Jr.
Richard H. Morse, Esquire, Ryan Tack-Hooper, Esquire, American Civil Liberties
Union Foundation of Delaware, Wilmington, Delaware; Brian W. Stull, Esquire,
Cassandra Stubbs, Esquire, American Civil Liberties Union Foundation Capital
Punishment Project, Durharn, North Carolina, Attorneys for Amz'cz` Curiae, the
Arnerican Civil Liberties Union Foundation of Delaware and the American Civil
Liberties Union Capital Punishment Proj ect.
Elena C. Norrnan, Esquire, Kathaleen St. J. McCormick, Esquire, Nicholas J.
Rohrer, Esquire, Young Conaway Stargatt & Taylor, LLP; Marc Bookman, Esquire,
Atlantic Center for Capital Representation, Philadelphia, Pennsylvania, Attorneys
for Amicus Curz'ae, the Atlantic Center for Capital Representation.
PER CURIAM:
The defendant below-appellant Derrick Powell is appealing the Superior
Court’s denial of his motion for postconviction relief.l However, during the
pendency of that appeal, Powell moved to vacate his death sentence based on the
United States Supreme Court decision in Hurst v. Floria'a2 and this Court’s recent
interpretation of that decision in Rauf v. State.3 The only issue addressed in this
decision is Powell’s motion to vacate his death sentence.
In Rauf, We held that, after Hurst, the capital sentencing procedures in
Delaware’s death penalty statute are unconstitutional because the statute improperly
permitted the imposition of a death sentence based upon a judicial determination of
the necessary findings that the Sixth Amendment requires a jury to mall==l=*
[T]he major purpose of the constitutional standard of proof
beyond a reasonable doubt announced in Winship was to overcome an
aspect of a criminal trial that substantially impairs the truth-finding
function, and Winship is thus to be given complete retroactive effect.48
In Winship, the Supreme Court explained that a conviction based upon the
civil preponderance standard would amount to “a lack of fundamental faimess”49
Later, Teague incorporated the “fundamental faimess” language from Ivan V. into
its watershed procedural rule exception to non-retroactivity.50 In Hankerson v. North
Carolina,51 another pre-Teague decision, the United States Supreme Court observed
“we have never deviated from the rule stated in Ivan V. that ‘[w]here the major
purpose of new constitutional doctrine is to overcome an aspect of the criminal trial
that substantially impairs its truth-finding function and so raises serious questions
about the accuracy of guilty verdicts in past trials, the new rule (is) given complete
44 Ivan V., 407 U.s. a1204_05.
49 Winship, 397 U.s. at 363.
50 Teague v. Lane, 489 U.s. 288, 312 (1989).
51432 U.s. 233 (1977).
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retroactive effect.”’52 The change in the burden of proof in Winship that was ruled
retroactive in Ivan V. is no different from the change in the burden of proof that
occurred in Rauf.
Conclusion
The decision in Rauf constitutes a new watershed procedural rule of criminal
procedure that must be applied retroactively in Delaware, pursuant to our
interpretation of Teague’s second exception to non-retroactivity. Accordingly, we
hold that Rauf must be applied retroactively to Powell’s case, Therefore, Powell’s
death sentence must be vacated and he must be sentenced to “imprisonrnent for the
remainder of his natural life without benefit of probation or parole or any other
reduction.”53
This decision is consistent with two prior opinions when this Court held that
the extant death penalty statutes were unconstitutional and vacated all death
sentences In 1973, following the United States Supreme Court decision in
Furman,54 this Court held that the existing Delaware death penalty statute was
unconstitutional.55 The three remaining prisoners on Delaware’s death row at the
time had their death sentences vacated and were resentenced to life imprisonment
52 432 U.s. 233, 243-44 (1977) (quoting Ivan V., 407 U.s. a1204).
55 11 Del. C. §4209(d)(2).
54 Furman v. Georgia, 408 U.S. 238 (1972).
55 See State v. Dickerson, 298 A.2d 761 (Del. 1973).
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Four years later, after the United States Supreme Court decision in Woodson v. North
Carolina,56 this Court held Delaware’s mandatory death-sentencing statute was
unconstitutional.57 State v. Spence consolidated the cases of all nine prisoners that
had been sentenced to death under the mandatory scheme.58 We held that the death
sentences of all nine should be vacated and each should be sentenced to life
imprisonment without parole.59
56 428 U.S. 280 (1976).
57 See State v. Spence, 367 A.2d 983, 986 (1976) (citing Woodson, 428 U.S. at 301, 303).
53 Id. at 985.
591d. ar 989-90.
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