           IN THE SUPREME COURT OF THE STATE OF DELAWARE

AMBROSE SYKES                         §
                                      §     No. 53, 2014
             Defendant Below,         §
             Appellant,               §     Court Below: Superior Court of
                                      §     the State of Delaware in and for
      v.                              §     Kent County
                                      §
STATE OF DELAWARE,                    §     Cr. ID. No. 0411008300
                                      §
             Plaintiff Below,         §
             Appellee.                §

                         Submitted: November 19, 2014
                           Decided: January 30, 2015

Before STRINE, Chief Justice, HOLLAND, RIDGELY, VALIHURA, and
VAUGHN, Justices.

Upon appeal from the Superior Court. AFFIRMED


Patrick J. Collins, Esquire, (argued), Wilmington, Delaware, Albert J. Roop,
Esquire, Wilmington, Delaware, Appellant.

John R. Williams, Esquire, (argued), Department of Justice, Dover, Delaware, for
Appellee.
VAUGHN, Justice, for the Majority:

       The Movant-Below/Appellant, Ambrose Sykes, appeals the Superior Court’s

denial of his Motion for Postconviction Relief. In 2006 Sykes was convicted by a

jury of two counts of Murder in the First Degree, two counts of Rape in the First

Degree, one count of Kidnapping in the First Degree, two counts of Burglary in the

Second Degree, and other offenses.1 After a penalty phase hearing, the trial judge

imposed the death penalty. On direct appeal, Sykes’ conviction and sentence were

affirmed. In this appeal, Sykes asserts five claims. First, he contends that his trial

counsel was ineffective in investigating, preparing and presenting mitigating evidence

during his penalty-phase hearing; and that the Superior Court in this proceeding

committed error in analyzing this claim. Second, he contends that trial counsel was

ineffective by failing to argue that an erroneous comment which the trial judge made

about allocution during the guilt phase of the trial violated his Sixth Amendment right

to a fair trial by an impartial jury; and that the Superior Court in this proceeding

committed error by finding that this claim was barred by prior adjudication. In

connection with this second claim, Sykes also argues that his appellate counsel was

1
 After trial, the two counts of Rape in the First Degree were merged into one count of Rape in the
First Degree, and the two counts of Burglary in the Second Degree were merged into one count of
Burglary in the Second Degree.
                                                                                                 .

                                                2
ineffective for not arguing this claim on direct appeal. Third, Sykes contends that the

trial judge committed error when he failed to remove Juror No. 9 from the jury after

her impartiality was called into question during the guilt phase of the trial; that trial

counsel was ineffective for not challenging the juror for cause or using a peremptory

challenge to strike her during jury selection; that trial counsel was ineffective for

failing to argue for her removal from the jury after her impartiality was called into

question during the guilt phase of the trial; and that appellate counsel was ineffective

for not raising the issue on direct appeal. Fourth, Sykes contends that the State failed

to prove Burglary, Rape and Kidnapping beyond a reasonable doubt; that trial counsel

was ineffective for not retaining a forensic pathology expert to challenge the medical

evidence of homicide; and that appellate counsel was ineffective for not raising on

direct appeal the unfairly prejudicial impact these convictions had on the sentencing

phase. Fifth, he contends that trial counsel was ineffective for failing to move for a

judgment of acquittal on the kidnapping charge on the grounds that the restraint of

the victim was incidental to, and not independent of, restraint pertaining to the

underlying rape charge. We find no merit to any of these claims and affirm the

judgment of the Superior Court.




                                           3
              II. FACTUAL AND PROCEDURAL BACKGROUND2

       The following is the statement of facts contained in this Court’s opinion on

direct appeal:

       On November 8, 2004, sixty-eight year old Virginia Trimnell was
       scheduled to fly from Washington, D.C. to Detroit to visit her daughter.
       When Trimnell did not arrive as scheduled, her daughter contacted the
       Dover Police Department. Officer Jeffrey Gott went to check on
       Trimnell. Gott testified that when he arrive at Trimnell’s apartment, it
       was tidy and undisturbed and he observed no signs of forced entry. He
       also testified that he saw two shopping bags sitting on the bed.
       However, he could not locate Trimnell’s car or purse.

       At approximately 3:30 a.m. on November 10, 2004, Dover Police
       Sergeant Timothy Mutter saw Trimnell’s car traveling on Kings
       Highway in Dover. The driver, later identified as Sykes, got out of the
       vehicle, and Mutter asked him for his licence and registration. Sykes
       initially complied but then fled after Mutter asked about Trimnell. The
       police could not apprehend Sykes that night.

       Police found Sykes’s fingerprints on a shovel and a rubber glove inside
       Trimnell’s car. The police also found three gas cans and women’s
       clothing that matched what others saw Trimnell wearing on the day she
       disappeared. In the trunk of the vehicle, police found a large green
       suitcase with Trimnell’s name and Trimnell’s purse inside a green duffel
       bag. Police found Trimnell’s body stuffed into the large green suitcase.

       An autopsy indicated that Trimnell died by strangulation. A sexual
       assault kit detected sperm in Trimnell’s vagina. The autopsy did not,
       however, reveal any defense wounds on Trimnell. DNA testing was

2
  The facts are taken from the record, our opinion in Sykes’ direct appeal, Sykes v. State (Sykes I),
953 A.2d 261 (Del. 2008), and the Superior Court’s postconviction opinion, Sykes v. State (Sykes
II), 2014 WL 619503 (Del. Super. Jan. 21, 2014).

                                                 4
      conducted. Sykes’s saliva reference sample was ultimately determined
      to match all sixteen loci from Trimnell’s vagina swab. Sykes’s DNA
      also matched the sperm located on a comforter found in Trimnell’s
      trunk.

      Police seized a computer during a search of Trimnell’s apartment. An
      examination of that computer revealed that it had been used to access
      pornographic websites on November 7, 2004. Trimnell’s credit cards
      had been used to access the website. That computer had not been
      previously used to visit similar websites. Police also seized two
      pornographic magazines and four computers from Sykes’s mobile home.
      Files on two of those computers contained “similar images of adult
      pornography” to those found on Trimnell’s computer. Additionally,
      police found a leather bag containing silver dollars in the home of
      Sykes’s girlfriend, Jenny St. Jean. Trimnell’s daughter later identified
      that bag as Trimnell’s.

      Trimnell’s telephone records revealed that a cell phone registered to
      Sykes made three calls to her home on the morning of November 7,
      2004. Sykes, a night shift restaurant custodian at Dover Downs, did not
      work on November 7, 2004. He quit this job on November 8, 2004 due
      to alleged transportation problems. After he quit his job, Dover Downs
      security cameras showed him leaving the parking lot on November 8,
      2004 in Trimnell’s car.

      Police arrested Sykes on November 29, 2004 and the State later indicted
      him on two counts of Murder First Degree and other felony and
      misdemeanor charges. The State later re-indicted him and added two
      counts of Rape First Degree.

      Jury selection began on May 30, 2006 and continued until June 7, 2006. The

guilt phase of the trial began June 9, 2006 and went through June 26, 2006. On June

27, following deliberations, the jury found Sykes guilty on all counts.


                                         5
      The penalty phase of the trial took place on June 29 and June 30. The State

primarily relied upon the evidence of the facts and circumstances of the crimes of

which Sykes was convicted at the guilt phase. It also presented the testimony of a

daughter and three close friends of the victim, who gave the jury information about

the victim and the impact of the crimes upon her family and friends. The defense

presented the testimony of four witnesses: St. Jean (who also testified at the guilt

phase of trial as both a State witness and a defense witness); Sykes’ mother, Debora

Sykes; and two of Sykes’ sisters, Debray Sykes and Creshenda Jacobs. St. Jean’s

testimony focused on a loving relationship among Sykes, St. Jean, and their eleven

year old son, and the impact Sykes’ execution would have upon their son and her.

Debray Sykes discussed her good relationship with her brother and the impact on the

family if the death penalty were imposed. Jacobs testified that she had a good

relationship with her brother and described the closeness of the relationship between

Sykes and his son. Debora Sykes discussed the closeness of the relationship between

Sykes and his father, Jesse, when Sykes was a child. She testified that he had a good

aptitude as a student and was creative. She also testified about the loving relationship

between Sykes and his son. She testified that when Sykes was fourteen, she allowed

him to go live with his father because Sykes had a strong desire to do so. She


                                           6
described that decision as a mistake because at the time Jesse was “running the street,

running his women, doing his own thing.” She testified that while Sykes was with

Jesse, Jesse lived with several different women at different times. After two and a

half years, Jesse asked Deborah to take him back, which she did. When Sykes

returned, she saw that the time with Jesse had really damaged him emotionally, and

he was a different kid. She testified that he been exposed to too many things and too

much that he should not have been exposed to at his age. When he returned, he did

not want to enroll in high school. An effort at Job Corps was unsuccessful. She

testified that she and Sykes loved each other and broke down when asked to describe

how his receiving the death penalty would impact her.

      Sykes did not allocute.

      On June 30, 2006, the jury unanimously found beyond a reasonable doubt the

existence of a statutory aggravating circumstance: that Trimnell was murdered while

Sykes was engaged in the commission of, or flight after committing, Burglary in the

Second Degree. The jury recommended a sentence of death by a unanimous vote.

      In his report of Findings After Penalty Hearing, the trial judge stated that

“Ambrose L. Sykes brutally raped and murdered Virginia Trimmell in her own home

and thereafter drove her car with her body in the trunk along with a shovel and gas


                                          7
cans, in preparation of disposal of the body. One could not describe a more heinous,

diabolical crime.” He found two additional statutory aggravating circumstances were

established beyond a reasonable doubt by the jury’s guilty verdicts: the murder was

committed while Sykes was engaged in the commission of, or during his flight after

committing, Rape in the First Degree; and the murder was committed while Sykes

was engaged in the commission of, or during his flight after committing, Kidnapping

in the First Degree. The court also found that the following statutory and non-

statutory aggravating circumstances were established by a preponderance of the

evidence. The victim was over 62 years of age or older and defenseless. The murder

was committed for pecuniary gain; specifically, Sykes accessed and used the victim’s

computer along with her credit card to view a pornographic website, and removed a

bag containing silver dollars from her home. The court further found that the victim

was targeted and the murder was planned in advance, and that pecuniary gain and

preplanning were substantial aggravating circumstances. The court further found that

“the act of secreting the body out of the apartment with evidence of the crimes of

Murder, Rape and Burglary coupled with the shovel and gas cans provide ample

evidence of an effort to destroy or conceal evidence. This is a substantial aggravating

circumstance.” The trial judge further found that “[t]here is evidence that Sykes did


                                           8
not know the victim and it does appear that he selected her at random for the purpose

of committing the crimes of Rape, Burglary and Murder.” He further found that the

actions of Sykes were heartless, depraved, cruel and inhuman and that the defendant

terrorized and abused the victim before murdering her. He further found that the act

of tying up the victim and strangling her with her own clothes and thereafter

depositing her in her own suitcase in her own car demonstrated a callous depravity.

He also found that “[t]here is no doubt that her loss and the manner of her death will

have a substantial, adverse impact on her family and friends.” As a final aggravating

circumstance, the trial judge found that the defendant was potentially dangerous in

the future.

      The trial judge found the existence of several mitigating circumstances,

including: the “defendant clearly lacked guidance as a youth, in that the lack of a

fatherly presence at critical times of his life were a major factor.” He further found

that “he did not receive timely intervention by his parents during these times,

although the Court would note that he had indeed a loving and nurturing mother and

sisters who cared about him a great deal.” The trial judge further found that he has

talent and potential based upon testimony from his mother about his ability as a youth

to take a battery and wiring and make a radio. The trial judge further found that he


                                          9
does adjust well in a controlled environment and does not pose any obvious danger

to other inmates. The trial judge further found that in “joining his father to live as a

youth, despite his mother’s justified protesting, he lacked parental guidance and

suffered a lack of parental care evidenced by a rambling existence with his father.

This experience created a psychological maladjustment for a young man.” The trial

judge further found that although there was no “strong evidence of the effect of

corporal punishment [a fact contradicted by the evidence at the postconviction

hearing] and running away from home, his placement by his father at each household

where he hung his hat can be equated with a vagabond existence similar to being an

abandoned child.” The trial judge further found that Sykes had a strong and loving

relationship with his son, St. Jean, his siblings, and his mother; and that his “death

would negatively impact his mother, son, family and Jenny.”

      The trial judge summarized his findings as follows: [t]he aggravating factors

in this case are serious and substantial. The factual record established by the

evidence is overwhelming. The circumstances of the crimes are gruesome and

shocking. While there are mitigating factors present, they are not substantial when

compared to the aggravating factors.” Based on his analysis, the trial judge found

that the aggravating circumstances outweighed the mitigating circumstances, and that


                                          10
Sykes should therefore be sentenced to death.

         In his automatic, direct appeal to this Court, Sykes raised six claims: (1) the

trial judge infringed upon the his Fifth Amendment right to remain silent when the

judge erroneously commented to the jury during the guilt phase that Sykes would

have the opportunity to allocute following closing arguments; (2) his right to an

impartial jury was denied because the State improperly exercised its peremptory

challenges on the basis of race; (3) the trial judge erred by denying his motion for a

change of venue; (4) the trial judge failed to order a new trial after St. Jean

improperly contacted two jurors between the guilt phase and penalty phases of the

trial; (5) death by lethal injection constitutes cruel and unusual punishment; and (6)

Sykes’ death sentence is disproportionately severe compared to other similar cases.3

         After a remand for additional evidence on the claim that the State improperly

exercised its peremptory challenges, this Court rejected all of Sykes’ claims on appeal

and affirmed his conviction and sentence.

         On October 24, 2008, Sykes, represented by new counsel, filed his original

Motion for Postconviction Relief. On October 19, 2009, he filed an Amended Motion

for Postconviction Relief in which he raised twenty-three separate claims for relief.


3
    Sykes I, 953 A.2d at 261.

                                            11
Beginning October 10, 2011 and concluding November 7, 2012, the Superior Court

judge, who was the same judge who presided at trial and imposed sentence,

conducted a hearing over the course of eleven days. Testimony was received from

twenty-four witnesses. More than forty exhibits were admitted into evidence.

      At the hearing, Sykes presented mitigation evidence which he claims should

have been, but was not, included in the mitigation case at the sentencing hearing. The

additional mitigation evidence was presented through Debora Sykes, Debray Sykes,

Creshenda Jacobs, Richelle Herriott, who is Sykes’ older sister, Jania Watkins, who

is Sykes’ younger sister, Dawn Hawkins, who is a former girlfriend who lived with

Jesse and Sykes during the above-mentioned two and one-half year period that Sykes

lived with Jesse, Tara Whittlesay, who was Dawn’s daughter, Yolanda Jones, who

taught Sykes when he was in elementary school, Douglas Dyer, a former employer,

Dr. Carol Armstrong, a neuropsychologist, and Dr. Craig Haney, a psychology

professor. The mitigation evidence describes a traumatic childhood suffered by

Sykes, and other mitigating circumstances. A summary of their testimony is as

follows:

      Debora Sykes, Debray Sykes, Creshenda Jacobs, Richelle Herriott, and Jania

Watkins testified that the Sykes had a loving relationship with his son; that Sykes’


                                         12
household when he was a child was one of little to no means with no real parental

presence, particularly by Sykes’ father, Jesse; that the neighborhood where the family

lived was infested with crime and high drug use, and the family moved from home

to home; that during grade school, Sykes attended four different elementary schools

due to his family’s frequent moves; that Sykes suffered from poor hygiene and often

went to school in dirty clothes; that Debora attempted to maintain a strict household

and often inflicted corporeal punishment upon her children that at times could be

considered harsh; that Sykes would often receive the worst punishment, and the

punishment would often leave welts and bruises on his body; that Debora made

Sykes’ sisters hold him down while she beat him; that on one occasion, while beating

him with a belt in this fashion, she opened up a gash near his eye, and he was held

home from school while the wound healed; that Jesse was verbally and physically

abusive to Debora, often in the presence of the children, and made no attempts to

conceal his affairs with other women before ultimately abandoning the marriage; that

despite this, Sykes adored his father as a child; that while living with Jesse, Sykes

continued to be exposed to his father’s sexual relationships and substance abuse; and

that Sykes was physically abused by his father.

      Dawn testified that Jesse was a heavy drug user, sometimes using drugs while


                                         13
in Sykes presence; that while Sykes was living with them, Jesse was arrested and

convicted on a drug charge; that Jesse was physically abusive toward Dawn, and on

one occasion put a gun in her mouth; that Jesse was physically abusive toward Sykes

on a frequent basis; that Jesse used drugs in Sykes’ presence; that Jesse often stole

items while on his job as a moving van driver, and would force Sykes and her to

accompany him on the thefts; and that Sykes was aware of his father’s criminal and

other activities, including seeing his father have sex with another woman.

      Tara added that she recalled Jesse’s abuse toward Sykes; that she recalled

seeing Sykes to the point where his eyes swelled up and he had knots on his head;

that Jesse hit Sykes with tennis rackets or whatever other object may have been close

by; that Sykes longed for his father’s affection, despite the abuse; that Jesse raped

her; and that she did not believe that Sykes was sexually abused, but believed he was

aware of what his father was doing to her.

      Yolanda Jones was a homebound teacher, meaning that she would visit

children in their homes to teach them if they were unable to attend school. She

described Sykes’ neighborhood as one with a high poverty and crime rate. She

testified that she often taught Sykes at his home due to a number of chronic illnesses

he suffered from as a child; that one home Sykes lived in had no heat, electric or


                                         14
refrigerator; and that Sykes struggled as a student and had to repeat first and fifth

grades.

       Douglas Dyer, a former employer, testified that Sykes was a hard worker.

       Dr. Carol Armstrong is the director of the neuropsychology lab for the

Children's Hospital of Philadelphia. In July of 2009, Dr. Armstrong evaluated Sykes

over the course of six hours. Dr. Armstrong found that his abilities meet the range

of someone his age, but that Sykes scored statistically lower on memory tests

compared to the rest of his evaluation. Dr. Armstrong concluded that Sykes suffered

from brain damage in the form of associative memory impairment, which would cause

Sykes to be unable to remember new information or learn new things beyond his

normal effort. Dr. Armstrong speculated that the physical abuse Sykes suffered as a

child was a possible cause of his memory impairment, but could not conclusively

state this.

       Dr. Craig Haney testified as an expert regarding Sykes’ potential behavior in

prison. He testified that Sykes would not be a danger to other inmates and would fare

well in a controlled prison setting.




                                         15
         Evidence was also produced that Sykes was born cyanotic.4 After being born

at Dover Air Force Base, he had to be rushed to the Philadelphia Naval Hospital

because of the condition.

         On January 21, 2014, the Superior Court judge issued his written order denying

Sykes’ motion.

                              III. STANDARD OF REVIEW

         We review a Superior Court judge’s decision to deny postconviction relief for

an abuse of discretion.5 To the extent Sykes raises questions of law or constitutional

violations, they will be reviewed de novo.6

         To prevail on a claim of ineffective assistance of counsel, the defendant must

satisfy the two-prong standard of Strickland v. Washington.7 This test requires that

he prove that trial counsel's performance was objectively unreasonable and that the

defendant was prejudiced as a result.8 Under the first prong, judicial scrutiny is



4
  Cyanosis is the appearance of a blue or purple coloration of the skin or mucous membranes due
to the tissues near the skin surface having low oxygen saturation.
5
    Ploof v. State, 75 A.3d 840, 851 (Del. 2013); Norcross v. State, 36 A.3d 756, 765 (Del. 2011).
6
    Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010).
7
    466 U.S. 668 (1984).
8
    Id. at 694.

                                                 16
“highly differential.”9 Courts must ignore the "distorting effects of hindsight" and

proceed with a "strong presumption" that counsel's conduct was reasonable.10 The

Strickland court explained that “a court deciding an actual ineffectiveness claim must

judge the reasonableness of counsel’s challenged conduct on the facts of the

particular case, viewed as of the time of counsel’s conduct.”11

           Under the second prong, “[i]t is not enough for the defendant to show that the

errors had some conceivable effect on the outcome of the proceeding.”12 In other

words, “not every error that conceivably could have influenced the outcome

undermines the reliability of the result of the proceeding.”13 “Some errors will have

a pervasive effect . . ., and some will have had an isolated, trivial effect.”14 The

movant must show “that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."15 "A


9
     Id. at 689.
10
     Id.
11
     Id. at 690.
12
     Id. at 693.
13
     Id.
14
     Id. at 695-96.
15
     Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 694).

                                                 17
reasonable probability is a probability sufficient to undermine confidence in the

outcome."16 The court must consider the “totality of the circumstances,” and “must

ask if the [movant] has met the burden of showing that the decision reached would

reasonably likely have been different absent the errors.

          With these principles in mind, we turn to Sykes’ first contention.

                                    IV. DISCUSSION

                     The Aggravating and Mitigating Circumstances

          Sykes first contends that trial counsel was ineffective in investigating,

preparing and presenting mitigating evidence during the penalty-phase hearing.

          “When a [movant] challenges a death sentence such as the one at issue in this

case, the question is whether there is a reasonable probability that, absent the errors,

the sentencer – including an appellate court, to the extent it independently reweighs

the evidence – would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.”17 The movant must establish “‘ a reasonable

probability that a competent attorney, aware of the available mitigating evidence,

would have introduced it at sentencing,’ and ‘that had the [sentencer] been confronted


16
     Strickland, 466 U.S. at 694.
17
     Id. at 695.

                                            18
with this . . . mitigating evidence, there is a reasonable probability that it would have

returned with a different sentence.’ Our inquiry is therefore objective: what a

reasonable sentencer in these circumstances would have done when confronted with

the evidence.”18 “A careful prejudice inquiry requires us to ‘consider all the relevant

evidence that the [sentencer] would have had before [him] if counsel had pursued a

different path.”19 In making that determination, we must consider “the totality of the

available mitigation evidence–both [the evidence] adduced at trial, and the evidence

adduced in the [postconviction] proceeding”– and “reweigh[] it against the evidence

in aggravation.”20

         Prior to trial, defense counsel assigned a law clerk to interview several of

Sykes’ relatives to search for mitigation evidence. The interviews revealed that Sykes

was whipped frequently when he was a child. On more than one occasion, Sykes’

mother had one of his sisters hold him down while she, the mother, beat him. A sister

remembered one occasion where Sykes’ mother hit him in the eye with a belt buckle,

causing bleeding and a large contusion. Sykes was not able to see from the eye and


18
   Swan v. State, 28 A.3d 362, 391-92 (Del. 2011) (quoting Wong v. Belmontes, 558 U.S. 15, 20
(2009)).
19
     Swan, 28 A.3d at 392 (quoting Belmontes, 558 U.S. at 20).
20
     Williams v. Taylor, 529 U.S. 362, 397-398 (2000).

                                                19
was not able to go to school for about a week. The law clerk wrote a memo to

counsel informing him of the results of the interviews. The memo put counsel on

notice that there were issues in the Sykes household when Sykes was a child. The

memo also discussed educational and behavioral problems. It appears from the

record that there was no effort, or no significant effort, by counsel to further

investigate the information contained in the memo. This failure by counsel to

investigate Sykes’ troubled childhood as discussed in the memo, alone, is enough to

lead to the conclusion that trial counsel’s mitigation case preparation was objectively

unreasonable. Thus, we find that Sykes has established the first prong under

Strickland.

         Turning to the second prong of Strickland, Sykes contends that the Superior

Court erroneously believed that mitigating evidence had to explain or excuse the

crime. We agree that the Superior Court’s analysis of prejudice does contain error.

 Instances of that error include the following. While discussing the testimony of a

mitigation specialist, the Superior Court stated that the specialist acknowledged that

the evidence of Sykes’ abuse as a child “has no direct link to why someone would

commit murder.”21 While further discussing evidence of abuse, the Superior Court


21
     Sykes II, 2014 WL 619503, at * 27.

                                          20
stated “the abuse the Petitioner suffered as a child neither compels nor excuses his

criminal actions.”22 While discussing Dr. Armstrong’s testimony, the Superior Court

stated that “Dr. Armstrong also was unable to conclusively state the cause of

Petitioner’s memory issues, and admitted that this condition would not compel the

Petitioner to commit murder.”23

           The error in these comments is that mitigation evidence is not limited to

circumstances which might excuse or explain a defendant’s criminal conduct. Rather,

mitigating evidence is “any factor which tends to make the defendant’s conduct less

serious or the imposition of a penalty of death inappropriate.”24 Accordingly,

mitigation evidence is much broader and a proper focus should allow the sentencer

an opportunity to assess the moral culpability of the defendant.25

           We will now conduct our own independent, de novo review of Sykes’ claim

that trial counsel’s failure to investigate, prepare and present the additional mitigation

evidence which was presented in this proceeding prejudiced Sykes under the second


22
     Id. at *28.
23
     Id.
24
  Small v. State, 51 A.3d 452, 460 (Del. 2012) (quoting Wright v. State, 633 A.2d 329, 335 (Del.
1993)).
25
     Wiggins v. Smith, 539 U.S. 510, 535 (2003).

                                                   21
prong of Strickland.         With the expanded record in mind, “we now reweigh the

evidence in aggravation against the totality of available mitigation evidence and ask

whether [Sykes] has shown a reasonable probability that, but for counsel’s

ineffectiveness, the result of the proceeding would have been different.”26

         The aggravating circumstances which the State presented at trial are extremely

strong, powerful aggravating circumstances.           Our own independent, de novo

reweighing of the aggravating circumstances against the totality of the mitigating

circumstances leads us to the conclusion that Sykes has not met his burden of

showing a reasonable probability that he would have received a different sentence

when all of the mitigating circumstances in the reconstructed mitigation record and

the aggravating circumstances presented at trial are weighed against each other.

Although the additional mitigation evidence presented at the postconviction hearing

strengthens the weight of the mitigating circumstances, we find that the aggravating

circumstances outweigh the reconstructed mitigating circumstances.

         In reaching this conclusion, we have also considered the authorities relied upon

by Sykes. In Williams v. Taylor, the United States Supreme Court found that the

Virginia Supreme Court committed legal error by holding that Lockhart v. Fretwell,


26
     Swan, 28 A.3d at 395 (citations omitted).

                                                 22
506 U.S. 364 (1993), modified or in some way supplanted Strickland.27 In Wiggins

v. Smith, the Maryland Court of Appeals found that counsel was not ineffective under

the first prong of Strickland. The state court never performed an analysis under

Strickland’s second prong. The Supreme Court found that the Maryland Court of

Appeals’ finding that counsel was not ineffective under the first prong was

objectively unreasonable.28 In Rompilla v. Beard, the Pennsylvania Supreme Court

found that counsel was not ineffective under the first prong of Srickland. Having

concluded that counsel was not ineffective under the first prong of Strickland, the

Pennsylvania Supreme Court did not perform an analysis under Strickland’s second

prong. The Supreme Court of the United States found that the Pennsylvania Supreme

Court’s finding that counsel was not ineffective under the first prong was objectively

unreasonable.29 Outten v. Kearney, a Delaware case, was another case in which the

state court found that counsel was not ineffective under the first prong of Strickland

and in which no analysis was performed under Strickland’s second prong. The Third

Circuit Court of Appeals found that this Court’s finding that counsel was not



27
     Williams v. Taylor, 529 U.S. 362, 391 (2000).
28
     Wiggins, 539 U.S. at 527.
29
     Rompilla v. Beard, 545 U.S. 374, 389 (2005).

                                                23
ineffective under the first prong of Strickland was objectively unreasonable.30 In

Sears v. Upton, a postconviction trial court in Georgia found that trial counsel’s

performance was ineffective under the first prong of Strickland, but concluded that

it could not perform an analysis under the second prong of Strickland because it could

not speculate as to what the effect of the additional mitigation evidence in that case

would be. It denied the movant’s postconviction relief and the Supreme Court of

Georgia affirmed. The United States Supreme Court found that the Georgia state

courts committed legal error because they failed to apply the correct prejudice inquiry

under Strickland.31 None of these cases are ones in which the state courts involved

found that the defendant had successfully established ineffectiveness under the first

prong of Strickland, but failed to show prejudice under the second prong after a

reweighing of the aggravating circumstances and the reconstructed mitigation

circumstances. They are all distinguishable.

                                The Sixth Amendment Claim

         Sykes contends that trial counsel was ineffective by failing to argue that an

erroneous comment which the trial court made about allocution during the guilt phase


30
     Outten v. Kearney, 464 F.3d 401, 419 (3d Cir. 2006).
31
     Sears v. Upton, 561 U.S.945, 954 (2010).

                                                24
of the trial violated his Sixth Amendment right to an impartial jury; that appellate

counsel was ineffective for failing to make the argument on direct appeal; and that the

Superior Court in this proceeding committed error by finding that this claim was

barred by prior adjudication.

      When closing arguments were about to begin during the guilt phase of the trial,

the judge made the following comments:

      Members of the jury, at this time the State and defense have rested their
      cases. It is typically the time at which you will now hear closing
      arguments of counsel. We'll first begin by hearing from the prosecution.
      Then you'll hear from the defense. And as you know from earlier
      instructions that were given to you, the State has a further opportunity
      to respond to the defense's statements. You also may be hearing from
      the defendant if he chooses to do what we call an allocution. It's entirely
      up to the defendant, and you may hear about that as we proceed.

      The reference to Sykes and allocution was obviously error since allocution

occurs in the penalty phase, not the guilt phase.

      Trial counsel did not object when the comments were made. After the State

completed its closing, the trial court recessed and met with counsel in chambers.

Realizing his error, the trial judge asked whether the parties desired that he issue

some form of clarification. Defense counsel then moved for a mistrial, which the

court denied. Instead, the trial judge gave the following curative instruction.

             I want to clarify one thing because I misspoke. I want to

                                          25
              make sure you understand where we are in these
              proceedings. I actually told you the State would make
              closing remarks, which [the Prosecutor] did on behalf of
              the State; that you next would hear from [Defense counsel],
              who would speak on behalf of the defendant; and then, of
              course, we’ll have another opportunity for the State,
              according to our rules, the State would have a right to add
              any rebuttal they wish to make. And then the mater will
              close at that point, and then I will give you the instructions
              that you will follow for this case at this stage of the
              proceedings. Anything else I said is not important for you
              to know other than the fact that you need to also
              understand that the defendant in this case has a right to
              testify or not testify as he chooses, and the defendant has
              chosen not to testify in the case-in-chief for the defense.
              And the fact that the defendant has elected not to testify
              must not be considered by you as indication that the
              defendant is guilty of the crime charged. I gave you this
              instruction already. I’m going to give it to you, and you’ll
              hear it again when I do full-blown instructions which I’ll
              give you after the State has had an opportunity to do its
              rebuttal. And the fact that the defendant has chosen not to
              testify will not be considered by you as an indication that
              the defendant is guilty of the crime charged or any
              applicable related offense or for any other purpose, for that
              matter. And you must not discuss it or consider it during
              your deliberations. I specifically instruct you that you may
              not consider the defendant’s election not to testify in
              determining whether the State has established an element
              or offense beyond a reasonable doubt. Normally [sic],32
              you would speculate as to what the defendant might have
              said had he exercised his right to testify during the trial.
              Like any other person charged with an offense, this

32
  This appears to be a typographical error. The judge is supposed to say “nor may you speculate,”
not “normally you would speculate.”

                                               26
                 defendant is presumed innocent until proven guilty beyond
                 a reasonable doubt.

         At trial and on direct appeal, Sykes argued that the trial judge’s erroneous

reference to allocution during the guilt phase violated his Fifth Amendment right to

remain silent. This Court concluded that there was no error in the denial of the

motion for a mistrial, and that the curative instruction cured any prejudice to Sykes’

Fifth Amendment right to remain silent.33

         Sykes now argues that the trial judge’s comment on allocution violated his

Sixth Amendment right to an impartial jury because it may have improperly

influenced at least one juror, who may have communicated that improper influence

to the other jurors.

         Having considered Sykes’ Sixth Amendment claim, we conclude that the

curative instruction was sufficient to cure any prejudice to his Sixth Amendment right

to an impartial jury, as well as his Fifth Amendment right to remain silent. Sykes has

failed to establish prejudice from his trial counsel’s failure to argue at trial or his

appellate counsel’s failure to argue on direct appeal that the trial judge’s comment on

allocution prejudiced his Sixth Amendment right to an impartial jury.



33
     Sykes I, 953 A.2d at 269.

                                            27
       Moreover, we agree with the Superior Court’s conclusion that Sykes’ Sixth

Amendment claim is barred by Superior Court Criminal Rule 61(i)(4). That Rule

bars consideration of any ground for relief that was formerly adjudicated, unless

reconsideration of the claim is warranted in the interest of justice. A “defendant is

not entitled to have a court re-examine an issue that has been previously resolved

‘simply because the claim is refined or restated.’”34 The Sixth Amendment claim

which Sykes’ now makes adds little of substance to his Fifth Amendment claim made

on direct appeal. Although the legal theory has changed, the claim is the same – that

the trial judge’s allocution comment was prejudicial.

        We also find that Sykes has made no showing that reconsideration of the claim

is warranted in the interest of justice.

       Under Superior Court Criminal Rule 61(i)(5), the bar of Rule 61(i)(4) is

inapplicable “to a claim that the court lacked jurisdiction or 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.” Sykes’ has made no showing



34
  Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (quoting Riley v. State, 585 A.2d 719, 721 (Del.
1990)).

                                                28
that the bar of Rule 61(i)(4) is rendered inapplicable under Rule 61(i)(5).35

                                           Juror No. 9

       Sykes contends that the trial court committed error when it failed to remove

Juror No. 9, an African-American juror, after her impartiality was called into question

during the guilt phase of the trial; that trial counsel was ineffective for not

challenging the juror for cause or using a peremptory strike upon her during jury

selection; that trial counsel was ineffective for failing to argue for her removal from

the jury after her impartiality was called into question during the guilt phase of the

trial; and that appellate counsel was ineffective for not raising the issue on direct

appeal.

       Since this was a capital murder trial, each prospective juror was individually

voir dired. During Juror No. 9's voir dire, she revealed that she had been a rape

victim 10 years earlier, in 1996. Defense counsel requested additional questioning

to make sure that she was aware that there was a rape charge involved in this case.

Such additional voir dire took place. The prospective juror indicated that she could

be fair and impartial. When neither party challenged the juror for cause or exercised


35
   Sykes also claims that the trial judge’s allocution comment was a comment upon the evidence in
violation of the Delaware Constitution, Article IV, § 19. Since we find that the curative instruction
was sufficient to cure any prejudice to Sykes, no further consideration of this claim is warranted.

                                                 29
a peremptory challenge, she was seated on the jury.

      Sykes appears to argue that trial counsel is ineffective for failing to challenge

a juror for cause or for not using a peremptory challenge in all cases where a juror

is a victim of rape and one of the charges is rape. However, while challenging or

striking such a juror is always a safe course for counsel, there is no broad rule that

trial counsel must always challenge the juror for cause or use a peremptory challenge.

The juror indicated that she could be fair and impartial. She also indicated that she

thought the process in her case produced a fair result, and she bore no ill will toward

the criminal justice system. There is no evidence in this record that she did not, in

fact, carry out her duties as a juror in a fair and impartial manner. We find that Sykes

has failed to demonstrate any prejudice from defense counsel’s decision to allow

Juror No. 9 to be seated.

      On the ninth day of the guilt phase of the trial, Jenny St. Jean reported that she

had known Juror No. 9 since childhood. At that point, Ms. St. Jean had testified

twice during the trial. The juror denied knowing Ms. St. Jean.

      The trial judge thoroughly considered this issue and ultimately concluded that

Ms. St. Jean’s testimony was not credible, that there was no relationship between the

two, and that Juror No. 9 was fair and impartial.


                                          30
       To the extent that Sykes directly challenges the trial court’s ruling that the juror

would remain on the jury, his claim is barred by Superior Court Criminal Rule

61(i)(3). Rule 61(i)(3) bars any claim which was not asserted in the proceedings

leading to the judgment of conviction, unless the movant shows cause for relief from

the procedural default and prejudice from violation of the movant’s rights. Sykes’

trial attorneys did not challenge the juror at trial or on appeal. Therefore, any direct

claim that the trial judge should have removed the juror from the jury is barred under

Rule 61(i)(3).

       As to Sykes’ claim that trial counsel was ineffective for not arguing for her

removal after impartiality was questioned, or raising the issue on appeal, we find that

Sykes has failed to establish any prejudice from Juror No. 9's remaining on the jury

through the conclusion of the guilt phase, or from appellate counsel’s not raising the

issue on appeal.36

                                 Forensic Pathology Expert

       Sykes contends that the State presented insufficient evidence to prove

Burglary, Rape and Kidnapping beyond a reasonable doubt. He contends that the


36
   As discussed in this Court’s opinion on direct appeal, juror no. 9 was removed from the jury
before the beginning of the penalty phase. Juror no. 9 indicated that she felt fearful for herself and
her child after St. Jean approached her after the jury delivered its verdict in the guilt verdict.

                                                 31
State failed to show lack of consent in connection with the Rape claim. He also

contends that tying the victim in pantyhose did not prove lack of consent because,

based on postconviction hearing testimony of Dr. Jonathan L. Arden, M.D., she was

tied up after her death for the purpose of transporting the body. He also contends that

having Dr. Arden’s testimony at trial would have enabled trial counsel to object to the

State’s arguments such as “having her bound and gagged certainly made raping her

a lot easier.” He also contends that the State failed to prove the timing of the victim’s

injuries in relation to sexual intercourse, which means that the State failed to prove,

as alleged in Count 3, that Sykes “cause[d] physical injury” to the victim “during the

commission of the [rape], during the immediate flight following the commission of

the crime, or during the attempt to prevent the report of the crime.” He also contends

that the State’s failure to prove rape means that the State did not prove Burglary in

the Second Degree under Count 6 of the indictment, which alleged that Sykes entered

the victim’s residence with the intent to commit rape. He also contends that there was

insufficient evidence of Burglary in the Second Degree under Count 8 because there

was no sign of forced entry, and no sign that Sykes entered or remained on the

premises unlawfully. He also contends that retaining a forensic pathology expert

would have saved trial consel from an ill-conceived line of questioning in which


                                           32
counsel cross-examined Dr. Vershvovsky, the doctor from the Medical Examiner’s

office who performed the autopsy, about the possibility that the victim was still alive

when she was placed in the suitcase, a theory which Dr. Vershvovsky rejected out of

hand. He also contends that an expert, such as Dr. Arden, would have advised

counsel that the victim was placed in the suitcase after death; that certain scalpine

hemorrhages were minor “bump on the head type injuries”; and that the facts were

rare for a strangulation case because the scarf was loose around the neck, indicating

that the victim was strangled from behind by an upward pulling motion, which, Sykes

claims, negates intent. Dr. Arden agreed that the victim died of asphyxiation by

strangulation. Sykes also contends that in ruling upon the motion for judgment of

acquittal on the Burglary, Rape and Kidnapping charges, the trial judge placed the

burden of proof on him. He also contends that appellate counsel was ineffective for

not raising the insufficiency of the evidence on the Rape, Burglary and Kidnapping

charges as an issue on direct appeal.

      At the close of the State’s case at trial, the defense moved for a judgment of

acquittal on the charges of Rape, Kidnapping and Burglary. The motion was denied

by the trial court. We find that his claim made here that there was insufficient

evidence of Rape, Burglary and Kidnapping is barred under Superior Court Criminal


                                          33
Rule 61(i)(4) by the trial judge’s adjudication of his motion for judgment of acquittal

at the close of the State’s case. Sykes has made no showing that reconsideration of

this prior adjudication is warranted under the interest of justice exception in Rule

61(i)(4) or that the bar is not applicable under Rule 61(i)(5).

      Moreover, we also find that Sykes cannot establish prejudice upon his claim

that appellate counsel was ineffective for challenging the sufficiency of the evidence

of Rape, Kidnapping and Burglary on direct appeal. There was substantial evidence

to support Sykes’ convictions. Sykes’ has failed to establish that there is a reasonable

probability that the result would have been different had his appellate counsel argued

that the trial judge committed error in denying the motion for judgment of acquittal.

      Sykes also contends that his trial counsel was ineffective in failing to retain a

forensic pathology expert to challenge the State’s evidence of homicide. In addition

to detailing the injuries associated with the victim’s strangulation, Dr. Vershvovsky

testified at trial that scalpine hemorrhages were caused by blunt force trauma. She

also testified that there was a hemorrhage to the right wrist, which would be caused

by the victim “being either bound or grabbed hard.” Dr. Vershvovsky’s testimony

presented evidence from which the jury could find, as it did, that Sykes “cause[d]

physical injury” to the victim “during the commission of the [rape], during the


                                          34
immediate flight following the commission of the crime, or during the attempt to

prevent the report of the crime.”

      At most, Dr. Arden’s testimony that the body was bound after death, that the

scalpine hemorrhages were minor bumps, and that the facts of the strangulation were

rare, creates a mere possibility that the result would have been different as to one of

the two Rape charges and the Kidnapping charge if his testimony had been presented

at trial. Sykes cannot establish that the jury would have rejected Dr. Vershvovsky’s

testimony and accepted Dr. Arden’s testimony. We find that Sykes has failed to

establish that there is a reasonable probability that the result would have been

different if Dr. Arden had testified. Sykes has failed to establish prejudice from trial

counsel’s failure to retain a forensic pathology expert.

                                    The Weber Claim

      Finally, Sykes makes an additional argument with regard to the sufficiency of

the evidence of Kidnapping in the First Degree. He contends that trial counsel was

ineffective for failing to include in his motion for judgment of acquittal on the

Kidnapping charge the argument that the restraint of the victim was incidental to, and

not independent of, restraint pertaining to the underlying Rape charge.

      When kidnapping is charged together with an underlying offense, there must


                                          35
be evidence that the restraint of the victim must be independent of and not incidental

to the underlying offense.37 In this case, Sykes was charged with Kidnapping in the

First Degree on the grounds that he did “unlawfully restrain Virginia B. Trimmell

with the intent to facilitate the commission of the felony of Rape First Degree.”

According to the autopsy report, the victim’s legs were bound together at the ankles

with pantyhose, forming a knot. The pantyhose then trailed upward and wrapped

around the right wrist. As mentioned, Sykes contends, based on the testimony of Dr.

Arden, that the binding of the victim occurred after death. Dr. Arden testified at the

postconviction hearing that binding with the stockings occurred after death because

if the victim were bound while still alive, there should be bruising where the

stockings were tied around her. He testified that there were no such marks or

bruising.

         Thus, Sykes contends that trial counsel was ineffective in failing to develop

testimony such as that given by Dr. Arden, testimony from which counsel could argue

that there was insufficient evidence of the victim being restrained independently of

the restraint incidental to Rape.

         The jury was properly instructed that the restraint for kidnapping must have


37
     Weber v. State, 547 A.2d 948 (Del. 1988).

                                                 36
been independent of and not incidental to Rape. The sequence of events was a factual

determination for the jury. In addition, it appears that the stockings tied around the

victim’s ankles are not the only evidence of restraint. It appears from the cross-

examination of Dr. Arden that there were other stockings found in the victim’s

vehicle which appeared to have been cut. Dr. Arden acknowledged that the

hemorrhaging to the wrist occurred while the victim was still alive. As mentioned,

Dr. Vershvovsky testified that the scalpine hemorrhages were caused by blunt force

trauma. There was circumstantial evidence to support the conclusion that the victim

was subjected to restraint in her apartment that was independent of the Rape and done

to facilitate the Rape. We find that Sykes has failed to establish that there is a

reasonable probability that the result would have been different if trial counsel had

retained an expert such as Dr. Arden and argued that the restraint of the victim was

incidental to, and not independent of, the Rape.

                                  CONCLUSION

      Accordingly, the judgment of the Superior Court denying Sykes’ motion for

postconviction relief is AFFIRMED.




                                         37
STRINE, Chief Justice, dissenting:

         Although I agree with my colleagues that the Superior Court committed no

error by affirming Ambrose Sykes’ conviction for first degree murder, rape, and

kidnapping; that Sykes’ trial counsel was ineffective under the first prong of

Strickland; and that the crime itself was cruel, depraved, and heinous, I respectfully

disagree that the lack of effective representation for Sykes at the critical penalty phase

of his case caused him no prejudice.

         One of the most important duties of a defense counsel in a capital case is to

“conduct a thorough investigation of the defendant’s background” to obtain

mitigating evidence.38 The attorney investigation is essential because sentencing

judges and juries “must be able to give meaningful consideration and effect to all

mitigating evidence that might provide a basis for refusing to impose the death

penalty on a particular individual. . . .”39 And it is precisely when the defendant is

convicted of a monstrous crime that he is most in need of a powerful, humanizing

mitigation presentation. In other words, it is in circumstances such as these, when a

defendant commits a cruel and depraved rape and murder of an elderly woman, that


38
     Williams v. Taylor, 529 U.S. 362, 296 (2000).
39
     21A Am. Jur. 2d Criminal Law § 894.

                                                38
it is most vital that his attorney provide mitigation evidence to weigh against the

defendant’s inexplicably evil behavior and tip the balance towards life in prison.

That evidence is essential if counsel is to convince the jury and the judge to give the

more merciful of the two harsh sentencing options: natural life in prison without

possibility of parole or death by execution.

      As my colleagues in the Majority Opinion point out, mitigation evidence is not

used to excuse the crime; it is used to provide the sentencing authority with a basis

to determine whether the defendant is so morally culpable as to deserve execution.

Given the circumstances, evidence of this kind was of obvious importance to

representing Sykes effectively. Sykes’ trial counsel acknowledged that Sykes did

“not have a shot” in the guilt phase. When the jury and the judge are most likely to

wonder how or why a person could act in such a vicious and cruel way, that is when

the defense counsel’s duty to provide an answer in the form of mitigating evidence

is most important. Thus, Sykes’ trial counsel was bound to take reasonable steps to

discover and present all of the factors that could have influenced the jury and the

sentencing judge to impose life in prison as the penalty.

      The ABA Guidelines, which were in place when defense counsel was assigned

to Sykes’ case, and which the U.S. Supreme Court has used as a touchstone for


                                          39
reasonable attorney conduct, state that, “[a]n attorney representing the accused in a

death penalty case must fully investigate the relevant facts. . . . [P]roviding quality

representation in capital cases requires counsel to undertake correspondingly broad

investigation and preparation.”40        To prepare effectively, the attorney must, at

“minimum,” hire a professional investigator and a mitigation specialist. “At the same

time, counsel must consciously work to establish the special rapport with the client

that will be necessary for a productive professional relationship over an extended

period of stress.”41 The Guidelines conclude that the defendant’s constitutional right

to offer mitigating evidence “does nothing to fulfill its purpose unless it is understood

to presuppose that the defense lawyer will unearth, develop, present, and insist on the

consideration of those ‘compassionate or mitigating factors stemming from the

diverse frailties of humankind.’”42

           The record is clear that Sykes’ trial counsel did not attempt to establish any

relationship with Sykes. Nor did he investigate Sykes’ background at all, such as by


40
  ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty
Cases, February 2003.
41
     Id.
42
   Id. (quoting Louis D. Bilionis & Richard A. Rosen, Lawyers, Arbitrariness, and the Eighth
Amendment, 75 Tex. L. Rev. 1301, 1316 (1997) (quoting Woodson v. North Carolina, 428 U.S. 280,
304 (1976) (opinion of Stewart, Powell, & Stevens, JJ))).

                                             40
seeking publicly available records, and he failed to pursue obvious leads, including

those discovered by his law clerk.43            Despite the fact that this was his first time

working as the lead attorney on the sentencing portion of a capital case, Sykes’ trial

counsel did not hire a mitigation expert or a professional investigator. For those

reasons, I agree with the Majority Opinion that the trial counsel’s mitigation case

investigation was objectively unreasonable, and that Sykes has established the first

prong under Strickland.

       I part from the Majority Opinion because I would find that the trial counsel’s

deficient investigation prejudiced Sykes under Strickland’s second prong. Because

the new mitigating evidence so substantially altered the evidentiary mix, I find that

there is a meaningful chance that a reasonable juror would recommend, and the

sentencing judge would choose a life sentence in prison instead of execution.44

43
   As the Majority Opinion points out, the clerk set forth a number of potential avenues for
mitigation, such as severe abuse by Sykes’ mother and father, Sykes’ educational and behavioral
problems, social issues (such as a lack of friends as a child), economic deprivation, brain damage,
and a poor relationship with his father. Sykes’ defense attorney did not pursue any of these avenues
and did not present the jury with this evidence.
44
   Under the Strickland test, the test of prejudice is whether there is a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome”—a lower standard than “more likely than not.”
 Id. In other words, a reasonable probability exists when there is a meaningful chance that a
reasonable juror and judge would have reached a different decision had they been able to consider
the omitted mitigation evidence.

                                                  41
      As the Majority Opinion acknowledges, the evidence presented during the Rule

61 hearings is very different than the evidence that the jury heard at Sykes’

sentencing. Had Sykes’ trial counsel performed a thorough investigation, he would

have discovered (and presented the jury with) the following evidence:

            (1) Sykes experienced severe economic deprivation
            throughout his childhood. When he was in elementary
            school, Sykes’ father, Jesse Sykes, was discharged from the
            military for selling drugs, and after that, there was not
            enough money "really to eat.”

            (2) While living together, Sykes’ parents fought
            constantly, physically and verbally, and they severely
            injured each other. Sykes saw “quite a bit” of the
            violence.

            (3) Sykes idolized and looked up to his father. The two
            were inseparable during Sykes’ childhood. But Sykes’
            father was not a good role model: he was a drug addict and
            used drugs in front of his children on a daily basis. He beat
            his wife, Sykes’ mother, and Sykes’ siblings. He engaged
            in extramarital affairs and would take Sykes to see his
            girlfriends, one of whom was only 16.

            (4) After Sykes’ father left, his mother frequently moved
            the family to different public housing projects in
            impoverished neighborhoods. Sykes often came to
            elementary school without shoestrings or socks, in dirty
            clothes that would need to be laundered on premises.




                                         42
(5) Sykes’ mother neglected his medical care. She also
beat him, often leaving welts and bruises. At one point, his
mother whipped him as his sisters held him down. Sykes’
mother now receives treatment for mental illness.

(6) When Sykes was 14, he left his mother’s home and
moved in with his father and his father’s girlfriend, Dawn
Hawkins. Jesse Sykes severely abused Sykes during the
two years that he lived in his father’s house. Hawkins
testified that Jesse “punch[ed] on [Sykes]” constantly.
Jesse would beat him with belt buckles, tennis rackets, and
sticks, leaving Sykes with “black eyes, bruises, busted
lips.”

(7) Sykes was devastated by the severe abuse imposed
by the man he idolized. “Brose spent most of the time in
his room crying. He would constantly cry. He would get
in the bed and put the earphones on and just lay there and
cry.”

(8) Jesse Sykes also violently abused his girlfriend and
his girlfriend’s sister, Tara Whittlesay, who lived in the
house with them. For example, Hawkins recalled that Jesse
put a gun in her mouth on one occasion. Whittlesay
testified that Jesse sexually assaulted her from age 11 to
16, while Sykes was living in the home, and that Sykes was
aware of this abuse. Sykes’ father was eventually charged
with raping Whittlesay.

(9) Jesse Sykes enlisted his son as an apprentice in his
criminal activity during this time. Sykes would go out on
the road with his father to participate in burglaries “all the
time.” Sykes was often forced to witness his father’s
sexual encounters on these trips.

(10) Sykes’ mother and siblings testified that after

                             43
               spending two years in his father’s house, Sykes changed
               dramatically. He talked much less and never returned to
               school.

               (11) Sykes suffered from brain damage in the
               hippocampus, possibly caused by the beatings,
               malnutrition, and cyanosis at birth.

       Sykes’ trial counsel did not present any of this evidence to the jury because he

did not investigate Sykes’ background at all. Instead, at sentencing, he presented

testimony from four family members who vaguely stated that Sykes’ childhood was

“kind of difficult.” Sykes’ trial counsel also failed to present the only independent

evidence that he secured during his cursory investigation: that Sykes suffered from

an antisocial personality disorder.45         Therefore, there was a material difference

between the mitigation case the jury heard and the mitigation case a reasonable

attorney would have presented.

       As the Majority Opinion recognizes, the Superior Court erred in stating that

this additional mitigating evidence had to explain or excuse Sykes’ crimes to be



45
   At oral argument, the State discounted the value of the psychological diagnosis as a mitigating
factor, claiming that it could have done more harm than good. But there is no reason to think that
the jury would have not been positively influenced by the diagnosis of Sykes as having antisocial
personality disorder when combined with the evidence of severe abuse. And the fact that Sykes had
antisocial personality disorder has a nexus to the crimes committed by Sykes, which the State
admitted is the strongest type of mitigating evidence.

                                               44
relevant. But the Majority Opinion fails to recognize that the Superior Court also

erred in its analysis of whether prejudice occurred. The Superior Court did not ask

whether there was a reasonable chance that a reasonable sentencing authority would

have given a life sentence if confronted with the new evidence. Instead, the court

took a subjective approach, and concluded that it would not have imposed a different

sentence. But the test is not whether the trial judge himself would have come to a

different conclusion.

         The Majority Opinion compounds the trial court’s error on appeal. As it did

in its recent decision in Ploof v. State,46 this Court mistakes the application of

Strickland’s prejudice prong to this procedural context. Eschewing any reliance on

the Superior Court’s analysis of whether the prejudice occurs, the Majority Opinion

purports to reweigh the aggravating and mitigating factors in the record itself and to

reach what appears to be its own sentencing determination.           Thus, the Majority

Opinion states:

                The aggravating circumstances which the State presented
                at trial are extremely strong, powerful aggravating
                circumstances. Our own independent, de novo reweighing
                of the aggravating circumstances against the totality of the

46
     75A. 3d 840 (Del. 2013).



                                            45
               mitigating circumstances leads us to the conclusion that
               Sykes has not met his burden of showing a reasonable
               probability that he would have received a different
               sentence . . . . Although the additional mitigation evidence
               presented at the postconviction hearing strengthens the
               weight of the mitigating circumstances, we find that the
               aggravating circumstances outweigh the reconstructed
               mitigating circumstances.

       The Majority Opinion’s focus on its own assessment of the aggravating and

mitigating circumstances is contrary to the intent behind Delaware’s hybrid capital

sentencing scheme. The U.S. Constitution requires that the sentencing authority

always have an option to consider mitigation evidence and to order a sentence less

than death if that authority determines that the mitigating evidence outweighs the

evidence in favor of imposing a death sentence.47                 In Delaware, the sentencing

authority is both the judge and jury. Although our state has diminished the role of the

jury in the capital sentencing process, it has not eliminated it. To do so might violate

the U.S. Constitution under the Supreme Court’s decision in Ring v. Arizona, in

which the Court invalidated Arizona’s capital sentencing process because the



47
   E.g., Eddings v. Oklahoma, 455 U.S. 104, 105 (1982) (“[W]e conclude that the Eighth and
Fourteenth Amendments require that the sentence . . . not be precluded from considering, as a
mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less than death.”).



                                                 46
sentencing judge weighed the aggravating and mitigating circumstances necessary to

impose death without the aid of a jury.48           The Delaware capital murder statute

contemplates that the jury will play a major role in sentencing by requiring that it

unanimously find at least one aggravating factor before the death penalty can be

imposed, and then cast an advisory vote on whether the aggravating factors outweigh

the mitigating factors.49      The sentencing judge must give weight to the jury’s

recommendation, and if she disagrees, she must state her reasons “with specificity.”50

And although the sentencing judge may reach a different judgment from the jury

majority, I am not prepared to say that the jury’s vote is without any influence at all,

especially as a Delaware trial judge has only overridden a jury vote for life once

before.51

         As explained in Ploof, the proper application of Strickland in this important


48
  536 U.S. 584 (2002); see also Brice v. State, 815 A.2d 314 (Del. 2003) (upholding Delaware’s
hybrid capital sentencing scheme because of the role of the jury in weighing the aggravating and
mitigating circumstances).
49
     11 Del. C. § 4209(c).
50
     11 Del. C. § 4209(d).
51
  See Garden v. State, 815 A.2d 327, 345 (Del. 2003), rev’d and remanded, Garden v. State, 844
A.2d 311 (Del. 2004); see also Ross Kleinstuber, “Only A Recommendation”: How Delaware
Capital Sentencing Law Subverts Meaningful Deliberations and Jurors’ Feelings of Responsibility,
19 Widener L. Rev. 321 (2013).


                                              47
context requires us to respect the reality that reasonable jurors and judges can come

to different conclusions on the question of whether a life sentence or execution is the

appropriate penalty for even a monstrous crime. Thus, the appropriate inquiry is not

for the appellate panel to ask itself whether, having seen the new evidence, the panel

thinks a death sentence is warranted. In fact, that sort of inquiry is inconsistent with

the intuition behind this Court’s recent change to Rule 82,52 which requires that a

different trial judge than originally gave a death sentence preside over any new trial

and sentencing, regardless of whether the judge had handled the original case in an

exemplary manner. In enacting that amendment, we recognized that it is difficult for

anyone to set aside a prior decision, and that in the important matter of applying the

death penalty, a defendant who is entitled to a new trial or sentencing should have

that proceeding handled by a new judge who has not formed an opinion about his

culpability in the past.

         Thus:

                 In situations where a Strickland violation has resulted in a
                 failure to present mitigating evidence, the test for prejudice
                 is whether there is a “reasonable probability” that the
                 result of the penalty phase would have been different. “A
                 reasonable probability is a probability sufficient to


52
     Supr. Ct. R. 82(b).

                                              48
               undermine confidence in the outcome.” Although this
               standard is not mathematically precise, it clearly does not
               require that it be more likely than not that a different
               sentence would have resulted had the missing mitigating
               evidence been considered. Rather, a finding of prejudice
               is required if there is a substantial likelihood that a
               reasonable sentencing authority would have reached a
               different conclusion if it had the chance to consider the
               missing mitigating evidence. In simple, common sense
               terms, a reasonable probability means that there is a
               meaningful chance that the new evidence would have
               caused a reasonable sentencing authority to give a different
               sentence. This inquiry is an objective one that focuses on
               what effect the evidence could have on a reasonable
               sentencing authority.53

       In other words, we must determine whether there is a meaningful chance that

the evidence omitted due to the Strickland violation, including evidence of Sykes’

severe childhood abuse, economic deprivation, and forced participation in crime by

his father, could have caused a reasonable juror or sentencing judge to conclude that

the balance of aggravating and mitigating factors weighed in favor of life in prison.

In this case, the undiscovered evidence of horrific abuse was so different than the


53
    Ploof, 75 A. 3d 840, 874-75 (dissent) (internal citations omitted). See also Strickland v.
Washington, 466 U.S. 668, 694-95 (1984) (“The assessment of prejudice should proceed on the
assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the
standards that govern the decision. It should not depend on the idiosyncrasies of the particular
decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors
may actually have entered into counsel’s selection of strategies and, to that limited extent, may thus
affect the performance inquiry, they are irrelevant to the prejudice inquiry.”).


                                                 49
evidence presented to the jury and judge in the first instance that I cannot conclude

that there is no reasonable probability that the new evidence would not have

influenced a reasonable jury and judge’s appraisal of Sykes’ culpability.            A

reasonable juror and reasonable judge could decide that although Sykes committed

a monstrous, inexcusable act, the compelling evidence that his most important role

models inculcated a propensity toward deceit, violence, sexual disrespect, and callous

disregard for women indicated a lesser degree of moral culpability and that Sykes

deserved the comparatively more merciful sentence of natural life in prison.

Supporting this conclusion is the reality that the State did not put in any evidence at

the sentencing hearing that Sykes presented a danger to his captors in prison. In fact,

the only evidence in the sentencing record was that Sykes had adjusted well to his

confinement and was not a problematic inmate. Thus, a reasonable juror and judge

could conclude that so long as Sykes served out his life in prison, he presented a low

risk of further harm to anyone.

      Accordingly, I would remand the case for a re-trial of the penalty phase.




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