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 mal2016 WL 3023740 (Del. Super. Ct. May 27, 2016).
2 Hurst v. Florida, 136 S. Ct. 616 (2016).

3 Raufv. State, 145 A.3d 430 (Del. 2016).

4 Id. at 434.

“imprisonment for the remainder of his natural life without benefit of probation or
parole or any other reduction.”5
Procedural Background

In February 2011, a Superior Court jury found Powell guilty of First Degree
Murder for recklessly causing the death of Officer Chad Spicer while in flight from
an attempted robbery, four counts of Possession of a Firearm During the
Commission of a Felony, Resisting Arrest with Force or Violence, Attempted
Robbery in the First Degree, and Reckless Endangering in the First Degree.
Following a penalty hearing, the jury unanimously found beyond a reasonable doubt
the existence of two statutory aggravators and, by a vote of seven to five, found by
a preponderance of the evidence that the aggravating factors outweighed the
mitigating factors and recommended that a sentence of death be imposed. The trial
judge found the existence of several non-statutory aggravating factors and by a
preponderance of the evidence that all of the aggravating factors outweighed the
mitigating factors and imposed a sentence of death.6 On August 9, 2012, this Court
affirmed Powell’s convictions and death sentence.7

After this Court affirmed his convictions and death sentence, Powell filed a

pro se motion for postconviction relief in the Superior Court. The court appointed

 

5 111)e1. C. § 4209(d)(2).
6 Powell v. S¢are, 49 A.3d 1090, 1096 (Del. 2012).
7 ld. ar1105.

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counsel, who filed an amended motion for postconviction relief on October 1, 2013.
Over the next two years, the record was expanded to include attorney affidavits and
an evidentiary hearing, On May 24, 2016, the Superior Court denied Powell
postconviction relief.8 Powell’s appeal from the denial of his motion for
postconviction relief is currently pending before this Court.
Hurst and Rauf

On January 12, 2016, the United States Supreme Court issued its decision in
Hurst, holding that Florida’s death penalty statute was unconstitutional9 The
Superior Court certified five questions to this Court in accordance with Delaware
Supreme Court Rule 41.‘0 This Court accepted the five questions certified by the
Superior Court, but revised the questions to remove any reference to the Delaware
Constitution. On August 2, 2016, after briefing and oral argument, this Court, sitting
en banc, answered the revised certified questions In Rauf, we concluded that the
Delaware death penalty statute, 11 Del. C. § 4209, is unconstitutional under federal
law.ll

In Rauf, this Court did not address whether Hurst or Rauf should be applied

retroactively to capital cases currently in various stages of collateral review.

 

8 State v. Powell, 2016 WL 3023740 (Del. Super. May 24, 2016).
9 Hurst v. Florida, 136 S. Ct. 616, 624 (2016).

10 Srare v. Rauf 2016 WL 320094 (Del. Super. Ct. Jan. 25, 2016).
11 Raufv. State, 145 A.3d 430, 434 (Del. 2016).

3

Consequently, Powell, whose case is before this Court on appellate review from the
denial of postconviction relief, moved to vacate his death sentence. He argues that
Hurst and Rauf should be retroactively applied to his case.
Retroactivity Rules
The normal federal framework for determining whether a new rule applies to

cases on collateral review is based upon the United States Supreme Court’s plurality

2

¢(.

opinion in Teague v. Lane.1 Teague held that, as a general matter, new
constitutional rules of criminal procedure will not be applicable to those cases which
have become final before the new rules are announced.”13 Nevertheless, Teague and
its progeny recognize two exceptions to the general bar on retroactivity. First,
“[n]ew substantive rules generally apply retroactively.”14 Second, new “watershed
rules of criminal procedure,” which are procedural rules “implicating the
fundamental fairness and accuracy of the criminal proceeding,” will also have
retroactive effect.15

In Danforth v. Minrzesota,16 the United States Supreme Court explained that

“Teague’s general rule of nonretroactivity was an exercise of [its] power to interpret

 

12 Teague v. Lane, 489 U.S. 288 (1989); Welch v. UnitedStates, 136 S. Ct. 1257, 1264 (2016); see
also Penry v. Lynaugh, 492 U.S. 302, 313 (1989) (affirming and applying Teague analysis in a
capital case).

13 Teague, 489 U.S. at 310.

14 Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (emphasis in original); see also Montgomery v.
Louisiana, 136 S. Ct. 718, 728 (2016); Teague, 489 U.S. at 307, 311.

15 Saj'le v. Parks, 494 U.S. 484, 495 (1990); Teague, 489 U.S. at 311.

16 552 U.s. 264 (2008).

4

the federal habeas statute” and “cannot be read as imposing a binding obligation on
state courts.”17 Nevertheless, more than twenty-five years ago this Court recognized
the Teague general rule of non-retroactivity and its two exceptions as persuasive
authority for deciding whether new state and federal precedents are to be applied
retroactively in Delaware postconviction proceedings.18 In doing so, we noted that
the federal Teague “new rule” doctrine was evolving and that State courts may grant
postconviction “relief to a broader class of individuals than is required by Teague.”19
Therefore, we declined to adopt a formal static test for determining the meaning of
a “new rule” for the purposes of deciding a Delaware postconviction proceeding.

In Danforth, the Supreme Court stated:

It is thus abundantly clear that the Teague rule of nonretroactivity was

fashioned to achieve the goals of federal habeas while minimizing

federal intrusion into state criminal proceedings It was intended to

limit the authority of federal courts to overturn state convictions_not

to limit a state court’s authority to grant relief for violations of new

rules of constitutional law when reviewing its own State’s

convictions20

Accordingly, the retroactivity issue that is presented by Powell’s motion is a matter

of Delaware law. In analyzing that issue We look to Teague and its progeny for

 

17 Id. at 278-79.

18 Flamer v. State, 585 A.2d 736, 745 (Del. 1990).

19 Ia'. at 779-80; Danforth, 552 U.S. at 282.

20 Danforth, 552 U.S. at 280-81 (providing that the Teague decision limits the kinds of
constitutional violations that will entitle an individual to relief on federal habeas, but does not in
any way limit the authority of a state court, when reviewing its own state criminal convictions, to
provide a remedy for a violation that is deemed “nonretroactive” under Teague).

5

guidance.21 However, as the United States Supreme Court held in Danforth, the
postconviction retroactivity remedy that a state court provides for “violations of the
Federal Constitution is primarily a question of state law.”22
Raqupplies Ring, Hurst, and Apprendi

We have concluded that the decision in Rauf falls within our interpretation of
Teague’s second exception to non-retroactivity. The State’s reliance on Schriro v.
.S'wnn’zerlz`n’s23 refusal to find Ring v. Arizona24 retroactive is misplaced. In Apprendi
v. New Jersey,25 the United States Supreme Court held that “any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted
to the jury, and proved beyond a reasonable a’oubt.”26 In Rz'ng, the United States
Supreme Court extended Apprendz' to find that “[c]apital defendants . . . are entitled
to a jury [rather than a judicial] determination of any fact on which the legislature

conditions an increase in their maximum punishment.”27

 

21 Although the Teague analysis is instructive, this Court is “free to give [Delaware] citizens the
benefit of [the United States Supreme Court’s] rule in any fashion that does not offend federal
law.” Danforth v. Minnesota, 552 U.S. 264, 280 (2008).

22 Id. But in Montgomery v. Louisiana, the Supreme Court recognized that Danforth left open the
question of whether Teague was binding on the states as a matter of constitutional law and held
that “when a new substantive rule of constitutional law controls the outcome of the case, the
Constitution requires state collateral review courts to give retroactive effect to that rule.” 136 S.
Ct. 718, 728, 729 (2016).

23 542 U.S. 348 (2004).

24 536 U.s. 584 (2002).

25 530 U.S. 466 (2000).

26 Ia’. at 490.

27 Ring, 536 U.S. at 588.

Ring’s claim was “tightly delineated[.] He contend[ed] only that the Sixth
Amendment required jury findings on the aggravated circumstances asserted against
him.”28 Ring’s claim did not implicate the Due Process Clause because “Arizona
law already required aggravating factors to be proved beyond a reasonable doubt
and that aspect of Apprendz' was not at issae.”29 Indeed, the Surnmerlin Court took
special notice in its first footnote that Ring did not address the burden of proo .3°
Accordingly, Summerlz'n only addressed the misallocation of fact-finding
responsibility (judge versus jury) and not, like Rauf, the applicable burden of proof.31

The Supreme Court began its opinion in Hurst by holding that “[t]he Sixth
Amendment requires a jury, not a judge, to find each fact necessary to impose a
sentence of death. A jury’s mere recommendation is not enough.”32 The Supreme
Court also held, as it had in Apprendi, that the Sixth Amendment, in conjunction
with the Due Process Clause, “requires that each element of a crime be proved to a
jury beyond a reasonable doubt.”33

Ring only implicated the Sixth Amendment right to a jury. The same was true

in Hurst because Florida also already required proof beyond a reasonable doubt.34

 

211 Id. at 597 n.4.

29 summerlin, 542 U.s. at 351 n.1; Ring, 536 U.s. a1597.

30 Surnmerlz'n, 542 U.S. at 351 n.1.

31 Id.

32 Hurst, 136 S. Ct. at 619.

33 Id. at 621 (citing Alleyne v. United States, 133 S. Ct. 2151, 2156 (2013)) (emphasis added).
34 Id. ; Raufv. srare, 145 A.3d 430, 433_34 (Del. 2016).

7

When Hurst was remanded, the Florida Supreme Court summarized its law as
follows:

Thus, before a sentence of death may be considered by the trial court in

Florida, the jury must find the existence of the aggravating factors

proven beyond a reasonable doubt, that the aggravating factors are

sufficient to impose death, and that the aggravating factors outweigh

the mitigating circumstances These same requirements existed in

Florida law when Hurst was sentenced in 2012_although they were

consigned to the trial judge to make.35

Thus, unlike Rauf, neither Ring nor Hurst involved a Due Process Clause
violation caused by the unconstitutional use of a lower burden of proof. This
significant distinction in Ring and Hurst is fatal to the State’s reliance upon
Summerlin and is dispositive of why the Rauf holding fits within Teague’s second
exception to nonretroactivity.

The second exception to non-retroactivity in Teague held that a new
procedural rule applies retroactively if it is a new “watershed rule of criminal
procedure” (1) “implicit in the concept of ordered liberty,” implicating “fundamental
faimess,” and (2) central to an accurate determination of innocence or guilt,” such

that its absence “creates an impermissibly large risk that the innocent will be

convicted.”36 “In the context of a death sentence, where the matter is not one of

 

35 Hurst v. State, 202 So.3d 40, 53 (Fla. 2016).
36 Sumrnerlin, 542 U.S. at 359 (Breyer, J., dissenting) (quoting Teague v. Lane, 489 U.S. 288, 311-
13 (1989)) (internal quotation marks omitted).

8

‘innocence or guilt,’ the second criterion asks whether the new procedure is ‘central
to an accurate determination’ that death is a legally appropriate punishment.”37
Raqus Watershed Ruling

Based upon Hurst, Rauf overruled our prior decision Brice v. State38 and
announced a new watershed procedural rule for capital proceedings that contributed
to the reliability of the fact-finding process.39 Thus, Rauf falls squarely within the
second exception set forth in Teague requiring retroactive application of “new rules”
of criminal procedure “without which the likelihood of an accurate [sentence] is

seriously diminished.”40

We also note that Teague’s holding on the retroactivity of
new rules of` criminal procedure was based upon the opinion of Justice Harlan, who
acknowledged that “some rules may have both procedural and substantive
ramifications.”41

The burden of proof is one of those rules that has both procedural and

substantive ramifications.42 Prior to our holding in Rauf, the burden of proof was

governed by the lesser standard of a preponderance of the evidence set forth in

 

37 Id. (Breyer, J. dissenting) (quoting Teague, 489 U.S. at 313).

38 815 A.2d 314 (Del. 2003) (upholding the Delaware death penalty statute after Ring).

39 See Sajj'le v. Parks, 494 U.S. 484, 495 (1990).

40 Teague, 489 U.S. at 313.

41 Mackey v. United States, 401 U.S. 667, 692 n.7 (1971) (Harlan, J., concurring).

42 Apprendi v. New Jersey, 530 U.S. 466 (2000); see also, e.g. , Medtronic, Inc. v. Mirowski Family
Ventures, LLC, 134 S. Ct. 843, 849 (2014) (“[T]he burden of proof is a ‘substantive’ aspect of a
claim.”); Welch v. United States, 136 S. Ct. 1257, 1264-65 (2016).

9

Delaware’s death penalty statute/13 Rauf recognized that, after Apprendi, substantive
Due Process required the higher “beyond a reasonable doubt” burden of proof. As
we observed in Rauf, “[t]here is no circumstance in which it is more critical that a
jury act with the historically required confidence than when it is determining whether
a defendant should live or die.”44
Raqupplies Retroactively

The question of whether the new higher burden of proof standard recognized
in Rauf is retroactive was decided by the United States Supreme Court more than
forty years ago."'5 In Ivan V. v. City of New York,46 the Supreme Court held that the
new rule announced in In re Winship,"'7 changing the burden of proof for fact-finding
from the “preponderance of evidence” standard to a “beyond a reasonable doubt”
standard, must be applied retroactively because that change implicated fact-finding
reliability under the Due Process Clause. In Winship, the Court had held that
juveniles must be afforded the benefit of the reasonable doubt standard when
charged with an act that would be a crime if committed by an adult.

In Ivan V., the Supreme Court concluded that the new rule articulated in

Winship must be applied retroactively because the reasonable doubt standard is the

 

44 11De1. C. § 4209(d)(1).

44 Raufv. Smie, 145 A.3d 430, 481 (Del. 2016).

45 Ivan V. v. City ofNew York, 407 U.s. 203 (1972).
44 407 U.s. 203 (1972).

41 397 U.s. 358 (1970).

10

sort of requirement without which the truth-finding function of a criminal trial is
substantially impaired:
Winship expressly held that the reasonable-doubt standard “is a
prime instrument for reducing the risk of convictions resting on factual
error. The standard provides concrete substance for the presumption of
innocence_that bedrock “axiomatic and elementary” principle whose

“enforcement lies at the foundation of the administration of criminal
law.”

*>l==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).

11

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).

12

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.

13