State v. Cabrera, Cr. I.D. No. 9904019326

STATE OF DELAWARE,
v.
LUIS G. CABRERA, JR., Defendant.

Cr. I.D. No. 9904019326

SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Final submission: June 10, 2015
Revised: June 22, 2015
June 17, 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.

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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

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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

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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

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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

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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

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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

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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

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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...