Capano v. State

¶1with whom NOBLE, Vice Chancellor joins, dissenting in part.

¶2We and the majority are forced to conclude that Ring and the Delaware Constitution’s unanimity requirement together mandate that we reverse Capano’s death sentence in this case. We therefore agree with the majority opinion in all but Part II.D. There the majority concludes that we can remand this case for a new penalty proceeding in the Superior Court and thus can allow the State to empanel a new jury before which the State may seek the death penalty a second time using the procedures set forth in the 2002 Statute. We respectfully disagree and conclude that a life sentence must be imposed.

¶3On appeal Capano argued that a retrial of the penalty phase is barred under the double jeopardy clause. We decline to reach this argument. Instead, we find that the related but broader doctrine of collateral estoppel applies and that the jury’s 11 — to—1 finding on the existence of the statutory aggravating factor of premeditation and substantial planning constitutes the law of the case such that the State is estopped from relitigating the statutory aggravating factor issue in a second penalty hearing. Unlike the majority, we do not discuss the double jeopardy issue because “[pjrinciples of double jeopardy, which are limited to the criminal context, are subsumed by the broader doctrine of collateral estoppel....”85 Accordingly, “the doctrine of collateral estoppel may bar retrial in cases in which the Double Jeopardy Clause would not.”86 In this case, even if a retrial is permitted under the Double Jeopardy Clause, it is not permitted under the doctrine of collateral es-toppel.87

¶4The doctrine of collateral estoppel “prohibits a party from relitigating a factual issue that was previously adjudicated.”88 Thus, “when an issue of ultimate fact has once been determined by a valid and final *986judgment, that issue cannot be litigated between the same parties in any future law suit.”89 To determine whether collateral estoppel applies in this case to bar re-litigation of the question of whether the statutory aggravating factor exists we must determine whether a question of fact essential to the judgment was litigated and determined by a valid and final judgment.90 We have also expressed the collateral estoppel requirements more precisely as:

(1) the issue previously decided is identical with the one presented in the action in question;

(2) the prior action has been finally adjudicated on the merits;

(3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication; and

(4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.91

¶5When examining a collateral estoppel issue in criminal cases, we must not apply the rule with the “hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality.”92

¶6It is clear that the first, third, and fourth collateral estoppel requirements are satisfied in this case. The first issue of whether the statutory aggravating circumstance of premeditation and substantial planning that the jury in the first penalty hearing decided 11-1 is the identical issue that would have to be relitigated in a second penalty hearing. Moreover, this question of fact is certainly essential to the judgment. With respect to the third and fourth requirements for collateral estoppel, the State, the party against whom the doctrine is invoked, was a party in the first penalty hearing and had a full and fair opportunity to litigate the issue in the first hearing. The only question is whether the second requirement is satisfied, namely that the prior action has been fully adjudicated on the merits or, in other words, whether the question of fact essential to the judgment was determined by a valid and final judgment. Delaware’s unanimity requirement makes the jury’s 11-1 finding on the statutory aggravating factor a valid and final judgment for collateral estoppel purposes. Given our Constitution’s unanimity requirement, and by applying the collateral estoppel doctrine with “realism and rationality,” we conclude that the jury’s failure to find unanimously that the only statutory aggravating factor presented to it existed is the “functional equivalent” of a finding that Capano did not pre-mediate the victim’s death and engage in substantial planning. We conclude that this finding would bind the State going forward and prevent a second penalty hearing.

¶7The procedure used in the first penalty hearing, as set forth by the 1991 statute, provides some support for the majority’s argument that the jury’s 11-1 finding in this case was not determined by a valid and final judgment. Under the 1991 statute, a person convicted of first degree murder could be convicted of death or life imprisonment. After a defendant was convicted of first degree murder, the trial judge conducted a separate penalty hear*987ing, usually before the jury that convicted the particular defendant. At the conclusion of the penalty hearing the jury made two recommendations on: (1) whether the State proved beyond a reasonable doubt the existence of at least one statutory aggravating factor, and (2) whether, by a preponderance of the evidence, the aggravating circumstances outweighed the mitigating circumstances. While the jury only made a recommendation on these issues, it reported particular numerical votes to the court. The jury’s role was then contemplated to be merely advisory, however. Only the trial judge had the authority to find the existence of a statutory aggravating circumstance and to impose the death sentence.93 Thus, in the case at bar, after the jury’s recommendation by a vote of 11-1 on the existence of the statutory aggravating circumstance, the trial judge finally determined that the facts supported the statutory aggravating factor of premeditation and substantial planning.

¶8The procedure required by the 1991 statute supports the majority’s argument that the jury’s advisory finding of fact was not “valid and final” because the trial judge ultimately made the determination that the statutory aggravating factor existed. This finding, and not the jury’s 11-1 recommendation, is arguably the valid and final judgment upon which this Court should focus in applying the collateral estoppel bar. This superficially appealing argument misses the mark, however, for reasons we noted in Brice v. State.

¶9In Brice we answered four certified questions of law relating to the impact the U.S. Supreme Court’s decision in Ring had on Delaware’s death penalty sentencing procedure. We also discussed the issue of structural error as it relates to the 1991 statute and the 2002 statute. We concluded that Ring did not provide a basis for a finding of a structural defect. We therefore looked to other U.S. Supreme Court precedent to resolve the issue. In so' doing we examined the six instances where the U.S. Supreme Court has found structural error to exist and discussed the “analytical category” we found most closely analogous: the defective reasonable doubt instruction at issue in Sullivan v. Louisiana.94 We explained Sullivan and related it to the harmless error analysis under the 1991 statute as follows:

In Sullivan, the defendant was charged with first-degree murder in the course of committing a robbery. 113 S.Ct. at 2080. Although there was circumstantial evidence connecting the defendant to the murder, defense counsel argued in closing that reasonable doubt existed as to identity and intent. Id. While instructing the jury, the trial judge gave what the State of Louisiana later conceded was an unconstitutional definition of reasonable doubt. Id. The defendant was subsequently convicted and sentenced to death. Id.

The United State Supreme Court began its analysis by noting that “the jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt.” Sullivan, 113 S.Ct. at 2081 (“It is self-evident, we think, that the Fifth Amendment requirement of proof beyond a reasonable doubt and the Sixth Amendment requirement of a jury verdict are interrelated.”). Accordingly, the defective reasonable doubt instruction had the effect of denying the defendant his constitutional right to a jury determination of guilty beyond a reasonable doubt. Id. 113 S.Ct. at 2081-2082 (“[T]o hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to *988support that verdict might be — would violate the jury-trial guarantee”) (emphasis supplied). Because “there [was] no jury verdict within the meaning of the Sixth Amendment.. ,[t]here [was] no object... upon which harmless-error scrutiny [could] operate.” Id. 113 S.Ct. at 2082 (emphasis original). This amounted to structural error because it was impossible to quantify the effect of the constitutional error. Id. 113 S.Ct. at 2083.

Sentences rendered under the 1991 Statute do not suffer from the same constitutional defect. First, defendants sentenced under Delaware’s 1991 scheme were not denied a jury verdict of guilty beyond a reasonable doubt. Second, the advisory jury made specific numerical findings as to the existence of statutory aggravating circumstances. We need not hypothesize findings of aggravating factors that were never rendered; rather, the jury’s numerical finding is the “object” upon which we may cast the lens of harmless error review. Because any error under the 1991 Statute does not fit into any of the structural error categories delineated by the United States Supreme Court, harmless error analysis is appropriate.95

¶10The emphasized language from Brice explains why it is possible to use a harmless error analysis to review any alleged Ring error under the 1991 statute in the event that the sentencing judge’s finding on the existence of a statutory aggravating factor is ultimately found to be unconstitutional. Unlike Sullivan, where the defective reasonable doubt instruction rendered the jury verdict a nullity and thus any harmless error review would have required an appellate court to hypothesize a verdict that was never rendered, under the 1991 statute the trial judge’s finding of a statutory aggravating circumstance will usually be supported by an advisory jury finding of the existence of the same statutory aggravating circumstance. As we said in Brice, the jury’s advisory numerical finding is the object upon which we may cast the lens of harmless error review. That is, in the hypothetical case where the jury makes a recommendation about the existence of a statutory aggravating factor, the trial judge makes the final finding that the same statutory aggravating factor exists and ultimately sentences the defendant to death. In the event that the trial judge’s finding of fact is later found to be impermissibly unconstitutional under the Delaware or United States Constitutions, a reviewing court can look to the jury’s recommended finding to “save” the death sentence. Brice stands for the proposition that any error that results from allowing the trial judge to find a statutory aggravating circumstance is harmless beyond a reasonable doubt in the case where the jury unanimously makes the same advisory finding about the existence of the statutory aggravating factor.

¶11The mere fact that the jury’s finding is advisory does not render it an impermissible object upon which to base the harmless error review. In Brice we also discussed a potential Caldwell v. Mississippi96 problem under the 1991 statute.97 The problem was that under the 1991 statute juries may have been improperly misled into believing that the ultimate decision on the existence of the statutory aggravating factor rested with the court. As we noted in Brice, “[i]f this argument were accepted, the ‘object’ upon which harmless error analysis would operate — the numerical *989vote representing a finding of statutory aggravators — would arguably be tainted because the jury may have been misled into believing that its finding on the issue was ultimately meaningless.”98 We dismissed this argument noting that, “the holding in Caldwell ... rested on Eighth Amendment grounds, and not upon a finding of structural error.”99

¶12The conclusion in Brice that we may cast the lens of harmless error review upon the jury’s advisory finding that the statutory aggravating circumstance exists undercuts any argument that we cannot use the jury’s finding of fact as the valid and final judgment upon which to premise collateral estoppel. Indeed, Brice seems to indicate that the issue here is very similar to a case where we reverse a trial judge’s grant of a party’s motion for judgment notwithstanding the verdict and direct the trial judge to reinstate the jury finding. In other words, the trial judge’s finding on the existence of a statutory aggravating factor is superfluous in the case when there is an advisory jury finding on the existence or non-existence of a statutory aggravating factor because we can merely reinstate the jury’s finding in the event that we must invalidate the procedure by which the trial judge found the statutory aggravating factor to exist, compelling us to invalidate the trial judge’s judgment of death.

¶13The interest in giving the State one complete opportunity to convict those who have violated its laws applies only in the guilt phase of a trial, not in the penalty phase of a capital proceeding. Once a defendant is convicted of first degree murder the State does not have the same interest in having one complete opportunity to have a defendant sentenced to death. In short, neither Society nor the State as its representative has a legitimate interest in continually retrying a defendant after a non-unanimous vote in the penalty phase on the issue of the existence of a statutory aggravating factor necessary to death qualify a defendant. Very importantly, the General Assembly recognized and provided for this policy in both the 1991 statute and the amended 2002 statute.

¶14The 1991 Statute, under which Capano was sentenced, provided that “any person who is convicted of first-degree murder shall be punished by death or by imprisonment for the remainder of his or her natural life without benefit of probation or parole or any other reduction, said penalty to be determined in accordance with this section.”100 The procedure set forth in the Statute obviously contemplated the possibility of the death penalty being imposed. In the event that the judge could not find the factual and legal conclusions necessary to impose the death penalty, the statute expressly provided that the defendant was to receive life imprisonment as the only alternative penalty.101 In short, the legislature expressly recognized that, to put it colloquially, “death is different.” Under the 1991 statute and the 2002 statute,102 there is no possibility of a second penalty hearing: the options are binary. The defendant can be sentenced to death or to life imprisonment; there is no provi*990sion for a retrial of a penalty hearing. At the guilt phase of a trial, however, the options are not binary. A defendant can be found guilty or not guilty OR, for various reasons, the defendant can be tried a second, third, or fourth time — he can essentially be retried as many times as there are legal reasons for the retrial.

¶15Thus, although an 11-1 verdict during the guilt phase of the trial would not constitute an acquittal, and the State would be permitted to retry the defendant, our statutory framework contemplates that an 11-1 verdict on the existence of a statutory aggravating factor during the penalty phase must be treated differently. Under the binary options of the sentencing statutes, the 11-1 jury finding must be treated as an on the merits determination that the statutory aggravating factor does not exist for collateral estoppel purposes. There is no statutory authorization of a second extremely expensive, trial-like penalty hearing after a jury that has heard both the evidence presented at a lengthy guilt phase and a lengthy penalty phase fails to find unanimously that the statutory aggravating factor presented to it exists. In this case we need not hypothesize a jury determination on the question of whether the statutory aggravating factor exists beyond a reasonable doubt; we already have one. Remanding this case with instructions to hold another penalty hearing would give the State an opportunity to get a unanimous jury finding a second time after it failed to get that result the first time.103 Given that we must apply the collateral estoppel doctrine in a criminal case not with the “hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality,” the jury’s 11-1 vote on the issue of whether the statutory aggravating factor existed in the case at bar must constitute the law of the case going forward. A jury has simply failed to find unanimously beyond a reasonable doubt that the statutory aggravating factor exists. Accordingly, in this case, that statutory aggravating factor does not exist. We, therefore, cannot remand the case for a second penalty hearing where there is a possibility of a jury finding or vote different than the one in the first penalty hearing. The doctrine of collateral estoppel precludes a second penalty hearing. Respectfully, we are compelled to dissent from the majority’s conclusion that the State may empanel another jury for a second penalty hearing.