Riley v. State

585 A.2d 719 (1990)

James W. RILEY, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: December 12, 1989. Decided: December 21, 1990.

Lawrence J. Connell (argued), Postconviction Relief Clinic, Widener University School of Law, Wilmington, for appellant.

Jeffrey M. Taschner (argued), and Peter N. Letang, Deputy Attys. Gen., Dept. of Justice, Wilmington, for appellee.

Before CHRISTIE, C.J., HORSEY, MOORE, WALSH and HOLLAND, JJ., constituting the Court en Banc.

HORSEY, Justice:

Defendant, James W. Riley, appeals from two decisions of Superior Court, the first, dated April 29, 1988, and a second, dated April 21, 1989, each denying defendant postconviction relief. Defendant seeks relief from his 1982 convictions in trial by jury in Superior Court of two counts of murder in the first degree, intentional murder and felony murder, and his sentence to death for felony murder. In 1985, this Court, sitting en banc on Riley's direct appeal, unanimously affirmed defendant's convictions and sentence. Riley v. State, Del.Supr., 496 A.2d 997 (1985) ("Riley I"), cert. denied, 478 U.S. 1022, 106 S. Ct. 3339, 92 L. Ed. 2d 743 (1986). Though defendant raises numerous postconviction issues, we find none to have merit. Accordingly, we affirm the decisions below.

Defendant Riley was convicted and sentenced to death for the 1982 murder of a liquor store owner committed in the course of an armed robbery. In his direct appeal, Riley raised, and this Court addressed, eleven issues in the guilt phase and seven issues in the penalty phase, two raised by Riley and five raised by the amicus, The American Civil Liberties Union. In rejecting defendant's multiple claims of error, we ruled, in part, that defendant was not denied the right to trial by an impartial jury as a result of the State's asserted use of peremptory challenges to strike prospective black jurors for racial or impermissible reasons. Riley I, 496 A.2d at 1009-1013.

Thereafter Riley, after a change of counsel, sought postconviction relief, raising multiple claims. In 1988, Superior Court, after evidentiary hearing, selected out and addressed three of defendant's claims: the State's exercise of its peremptory challenges should be reviewed in the light of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); the adequacy of the trial court's voir dire of juror attitude on the death penalty; and a claim of ineffective assistance of counsel at the penalty phase. The court, in a twenty-seven page unreported decision, rejected each of the claims as being without merit.^[1]

Riley moved for reargument and docketed an appeal in this Court. The case was remanded, and defendant's motion for reargument was granted. The court determined that Riley had established a prima facie case of discrimination based on the post-Riley I standard announced in Batson and was entitled to an evidentiary hearing. After a further evidentiary hearing, however, Superior Court, in 1989, applying Batson, found no merit to Riley's claim of discrimination. The court stated:

The State in this case provided race-neutral explanations for the peremptory challenges on all three black jurors. After examining the demeanor and credibility of the witnesses and prosecutors at the evidentiary hearing, I believe the State exercised its peremptory challenges entirely within the strictures of the Fourteenth Amendment. No factual basis exists for a successful claim of an equal protection violation. The State successfully rebutted any prima facie showing of discrimination in jury selection based upon race. Therefore, the motion for reargument based upon an alleged violation of equal protection under the Fourteenth Amendment to the United States Constitution and under the State constitutional right to trial by a fair and impartial jury is denied.

The court also examined defendant's remaining claims for postconviction relief and found them to have been previously raised and rejected either by this Court in Riley I or by Superior Court in its 1988 decision. Riley then docketed this appeal. He seeks our review of not only his claims ruled upon by Superior Court in 1988 and 1989, but of his other claims for relief which that court summarily rejected in 1989.

I

Of the eight claims Riley raises, we find that four were previously addressed by us in Riley's direct appeal. Those claims are:

(1) the trial court's denial of Riley's request for appointment of co-counsel and employment of an investigator;

(2) the trial court's denial of Riley's motion for change of venue for adverse pretrial publicity deprived Riley of trial by an impartial jury;

(3) that statements of the prosecutor and of the trial court during the penalty hearing were prejudicial; and

(4) that this Court's proportionality review in Riley I was flawed.

We agree with Superior Court that each of the issues underlying these claims was addressed by this Court in Riley I, 496 A.2d at 1014-1017, 1023-1027, and therefore is precluded from reconsideration under Superior Court Criminal Rule 61(i)(4). The Rule provides:

(i) Bars to Relief.

* * * * * *

(4) Former Adjudication. Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.

In summary, we find no merit to defendant's challenge to the "universe" of cases from which this Court determined in 1985 that the death penalty imposed upon defendant was not disproportionate. Riley I, 496 A.2d at 1027. The issues underlying the three remaining claims were carefully addressed in Riley I; and we conclude that the interests of justice would not be served by any further consideration of them. Justice does not require that an issue that has been previously considered and rejected be revisited simply because the claim is refined or restated. See Younger v. State, Del.Supr., 580 A.2d 552, 556 (1990); Nicholson v. State, Del.Supr., 582 A.2d 936 (1990) (ORDER). To the extent that any of Riley's particularized claims were not asserted at trial and on direct appeal, we decline to address them as procedurally barred under the cause and prejudice standard of Rule 61(i)(3).^[2]Younger, 580 A.2d at 556.

We turn to Riley's four remaining claims for postconviction relief:

(5) that the trial court's instructions to the jury in the penalty phase were constitutionally inadequate;

(6) that Superior Court in its 1989 decision improperly applied the standards of Batson v. Kentucky in determining that the prosecution had satisfactorily explained its use of peremptory challenges to exclude all blacks from the jury;

(7) that in conducting voir dire of the jury venire, the trial court violated defendant's Eighth Amendment rights by failing to probe whether jurors would automatically impose death upon a finding of guilt; and

(8) that defendant was denied effective assistance of counsel in the penalty phase of the trial by his attorney's failure to present mitigating evidence.

II

We first take up Riley's claim that the jury instructions in the penalty phase hearing were constitutionally inadequate and not in compliance with 11 Del.C. § 4209, as construed and applied by this Court in Whalen v. State, Del.Supr., 492 A.2d 552 (1985). In Whalen, we recognized that sentencing procedures:

must not create ``a substantial risk that the [death penalty will] be inflicted in an arbitrary and capricious manner'. Gregg v. Georgia, 428 U.S. 153, 188, 96 S. Ct. 2909, 2932, 49 L. Ed. 2d 859 (1976) (plurality opinion). Discretion in sentencing may not be eliminated completely, but must instead be ``directed and limited'. Id. at 189, 96 S.Ct. at 2932. Thus, it is the trial judge's duty to guide the jury's discretion by ensuring that they understand the bases for imposing a death sentence, and comprehend their responsibilities in applying such criteria. It is only through the careful use of jury instructions that the judge properly discharges this function.

492 A.2d at 559. Whalen then laid down a set of prerequisites against which to test the adequacy of the penalty instructions there before us. Riley seeks to employ those prerequisites for a purpose for which they were not intended. Riley reads Whalen as establishing a pattern set of penalty phase jury instructions from which no deviation will be permitted in determining whether a given set of instructions passes constitutional muster.

Riley reads more into Whalen than was intended. The short answer is that Whalen is a fact-driven decision and the flawed instructions found in Whalen are absent in Riley. Further, as will be seen, the instructions in Riley are virtually identical with those which this Court approved in Flamer just seven months before Whalen was issued. Flamer v. State, Del.Supr., 490 A.2d 104 (1983) ("Flamer I"), cert. denied (guilt phase), 464 U.S. 865, 104 S. Ct. 198, 78 L. Ed. 2d 173 (1983), cert. denied (penalty phase), 474 U.S. 865, 106 S. Ct. 185, 88 L. Ed. 2d 154 (1985). If we intended our analysis and rulings in Whalen to implicate Flamer I and its progeny, including Riley, we would have included Flamer I in our Whalen analysis.

Under 11 Del.C. § 4209(d), the task of the jury in determining the sentence for first degree murder is defined:

A sentence of death shall not be imposed unless the jury or judge, where appropriate, finds:

a. Beyond a reasonable doubt at least 1 statutory aggravating circumstance; and

b. Unanimously recommends, after weighing all relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, that a sentence of death be imposed.

11 Del.C. § 4209(d). The penalty phase instructions in Riley I and Flamer I complied with section 4209's mandate that the jury understand the two-step analysis. See Whalen, 492 A.2d at 562. Indeed, the instructions in both Flamer and Riley, in informing the jury of their task, far surpassed the instructions in Whalen. A side-by-side comparison of the complete instructions in Riley and Flamer is found at Appendices A and B. The entire Whalen penalty phase instruction is found in footnote 4 below.

Flamer I, Riley I and Whalen are in accord as to the essentials of a penalty phase jury instruction in a capital case. First, the instruction must guide the jury in the first step of their consideration of mitigating and aggravating circumstances. In this respect, the Riley and Flamer instructions used identical language:

An aggravating circumstance is a factor which tends to make the defendant's conduct more serious, or imposition of a penalty of death appropriate. A mitigating circumstance is any factor which tends to make the defendant's conduct less serious or the imposition of a penalty of death inappropriate.

Second, the court must plainly inform the jury of their crucial task (the second step) of weighing mitigating and aggravating factors in arriving at the appropriate penalty of life or death. Again, the Flamer and Riley instructions were identical:

... You are to weigh any mitigating factors against the aggravating factors to determine the penalty. If you have a reasonable doubt about the existence of any statutory aggravating circumstance, you must give the defendant the benefit of that reasonable doubt and find that that statutory aggravating circumstance does not exist.... if you are not unanimous in your recommendation to impose the death penalty, or you cannot agree unanimously as to your recommendation, then the Court is bound to impose a sentence of life imprisonment without benefit of probation or parole.

The only significant difference between the entire Riley and Flamer instructions to the jury was the case-specific portion of each charge dealing with the aggravating circumstances which the State alleged in each case.

Third, the jury must understand that it retains the option to recommend a life sentence despite a finding of a statutory aggravating circumstance. Flamer I, 490 A.2d at 128; Whalen, 492 A.2d at 562. In the penalty phase in Flamer, defendant argued on direct appeal, as Riley does in postconviction relief, that the penalty instructions were legally insufficient as to the life option: for the court's failure to apprise the jury of its retention of the option to recommend a life sentence, notwithstanding its finding of a statutory aggravating circumstance. In Flamer, this Court, in September 1984, rejected this argument, finding Flamer's penalty phase instructions adequate and sufficient as a matter of law. Flamer I, 490 A.2d at 128. We stated:

We have carefully scrutinized the six and one-half pages of jury instructions in the transcript and conclude that the jury charge constituted a correct statement of the substance of the law of sentencing in First Degree Murder cases and was not so deficient that it rises to the level of reversible error.

* * * * * *

Although the Trial Court did not instruct the jury explicitly that it could still recommend life imprisonment despite finding the presence of a statutory aggravating circumstance, we believe that the charge, viewed in toto, adequately apprised the jurors that a finding of a statutory aggravating circumstance did not automatically require them to recommend the death penalty and that life imprisonment was an available alternative.

Id. The trial court's instructions in Riley are virtually identical with those which we reviewed and found sufficient in Flamer.

Whalen and Flamer are also in accord that the adequacy of a given set of instructions is a fact specific determination, to be made in the context of the charge as a whole. Finally, the guiding principle for assessing the adequacy of a jury instruction remains constant through Flamer I, Riley I and Whalen. A defendant is entitled to a correct substantive statement of the law, but not to have any particular instruction. Flamer I, 490 A.2d at 128. Jury instructions are adequate if they are "such as to enable the jury to intelligently perform its duty in returning a verdict." Storey v. Castner, Del.Supr., 314 A.2d 187, 194 (1973); Whalen, 492 A.2d at 559. Applying these rules of construction to Riley's penalty phase instructions, we hold that Riley's instructions must be sustained as not only consistent with Flamer I but with the underlying precepts of Whalen.^[3]

The jury instructions given at the penalty phase in Whalen were quantitatively and qualitatively inferior^[4] to those in Riley and Flamer. The Whalen instructions were inadequate because they amounted to "no more than reading the relevant portions of 11 Del.C. § 4209 to the jury." Whalen, 492 A.2d at 561. The instructions in Whalen told the jury to "consider any mitigating or aggravating circumstances" but failed to so much as define an aggravating or a mitigating factor. In contrast, the penalty phase instructions in both Flamer and Riley went far beyond the instructions given in Whalen. The Riley-Flamer instruction provided guidance to the jury in conducting the two-step analysis required by 11 Del.C. § 4209. The instruction explained the meaning and the importance of mitigating and aggravating factors to the task the jury is charged with under the statute, thus satisfying the critical concern of Whalen: that the trial judge "guide the jury's discretion by ensuring that they understand the bases for imposing a death sentence, and comprehend their responsibilities in applying such criteria." Whalen, 492 A.2d at 559. The trial court in Riley even went one step further than in Flamer in instructing the jury. The Riley court also read through the interrogatories with the jury panel, further emphasizing their statutory task. See Appendix B.

The instructions to the jury in Riley and Flamer are consistent with Whalen's command that the jury carefully consider all mitigating and aggravating circumstances. The particular words used in articulating such a command are not necessarily determinative of their adequacy. Viewed as a whole, the instructions in Riley and Flamer adequately apprised the jury of their statutory task. The Whalen directive that the jury charge must include permission to "recommend against the death penalty no matter what aggravating circumstances are found to exist," 492 A.2d at 560, may be variously phrased to accomplish its purpose: the jury's careful consideration of all mitigating factors and their engaging in the weighing process required by statute. See Blystone v. Pennsylvania, ___ U.S. ___, 110 S. Ct. 1078, 1083, 108 L. Ed. 2d 255, 264 (1990) ("The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence").

The principles enunciated in Whalen for measuring the adequacy of penalty phase instructions were intended only as instructional guidelines and are not to be considered as setting forth a pattern of jury instructions from which no deviation will be permitted. We decline to find Riley's instructions to be constitutionally deficient simply because the Riley instructions are phrased in a format that does not precisely mirror Whalen. More specifically, we are satisfied that the jury in Riley understood that it was required to unanimously conclude that the aggravating circumstances outweighed those in mitigation. We are also satisfied that the jury understood that, in the event of its failure to unanimously agree upon the imposition of a death penalty, an imposition of life imprisonment would result. Finally, we find no basis for concluding that the instructions confused the jury over the available aggravating statutory circumstances.

III

Riley's next contention, that the State exercised its peremptory challenges for racial reasons, we find to be simply a renewed attempt to reopen previously settled issues. In Riley I, we set forth a legal analysis functionally identical to the Supreme Court's analysis later articulated in Batson. 476 U.S. at 79, 106 S.Ct. at 1712, 90 L.Ed.2d at 69. In Riley I we found that Riley's constitutional right to an impartial jury had not been violated. 496 A.2d at 1009. The Superior Court, after an evidentiary hearing on Riley's motion for postconviction relief, held that Riley had not been denied equal protection as a result of the State's use of peremptory challenges. The court found that the State had provided race-neutral explanations for its peremptory challenges. We find no error in Superior Court's rejection of Riley's Batson claim. See Holland v. Illinois, ___ U.S. ___, 110 S. Ct. 803, 807, 107 L. Ed. 2d 905, 916 (1990) (the Sixth Amendment fair cross-section requirement of an impartial jury does not deprive a party of the right to exercise peremptory challenges on racial or any other grounds from a venire that otherwise meets Sixth Amendment cross-sectional standards of representativeness). Moreover, we reaffirm our earlier decision sustaining the State's peremptory challenges on state constitutional grounds. Riley I, 496 A.2d at 1010-1013.

IV

We turn to Riley's claim that he was denied his Sixth and Eighth amendment right to an impartial jury by a flawed voir dire. Riley contends that although the jurors were queried as to whether or not they could impose a penalty of death upon a finding of guilt, they were not queried as to whether they would automatically impose a death penalty upon a finding of guilt. We find no merit in defendant's claim. The primary purpose of voir dire is to establish a juror's lack of bias or prejudice and thus secure for the defendant a jury able to vote impartially upon the evidence and the law presented at trial. Riley I, 496 A.2d at 1004. As we noted in Riley I, the voir dire questions posed by the court were formulated in keeping with 11 Del.C. § 3301. That statute establishes the parameters by which the trial court can determine through voir dire the qualifications of jurors to sit in capital cases. In Hooks v. State, Del.Supr., 416 A.2d 189, 194 (1980), we found section 3301 to be consistent with the constitutional requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, reh'g denied, 393 U.S. 898, 89 S. Ct. 67, 21 L. Ed. 2d 186 (1968). Compare Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986) (holding that a class of prospective jurors unalterably opposed to the death penalty does not constitute a "distinctive group" for purposes of fair cross section requirement). It would be redundant to require the trial court to further interrogate the jurors as to whether they would automatically impose the death penalty upon a finding of guilt.

V

Finally, defendant argues that trial counsel was ineffective in the penalty phase of trial for failing to proffer available mitigating evidence portraying defendant's life from birth to the time of his trial. The proffer's purpose was to "individualize" defendant and thereby provide the "compassion" needed for the jury to conclude that defendant should receive a sentence of life imprisonment rather than death. Defendant's argument in mitigation is premised on evidentiary hearing testimony of three expert witnesses: two criminal law defense attorneys, a New Jersey public defender and a District of Columbia attorney whose private practice specialty was defending capital murder cases, and a state of Maryland board certified forensic psychiatrist who had testified in more than two hundred criminal cases. Based on an examination of defendant, Dr. Neil Blumberg diagnosed defendant, in 1987, as suffering from "possible organic brain damage" and from a "severe impairment of his personality as a result of the neglect he experienced as a youth ... who grew up with no adult role model for emotional or moral development."

The mitigating evidence which trial counsel should have presented, according to defendant's evidentiary hearing experts, was defendant's life story, as portrayed by Dr. Blumberg: that defendant came from a family with a substantial history of alcoholism involving his mother, his father and a brother, the brother also having a history of substance abuse; that defendant was raised by a mother who was frequently absent for extended periods from their home in Philadelphia; that defendant began drinking and using drugs at the age of twelve; that defendant's parents' alcoholism became a source of acute embarrassment to defendant who at an early age developed an antisocial behavior (fire setting) out of a feeling of anger; that defendant was a slow learner who finally dropped out of school in the tenth grade; and that by age sixteen, defendant was chronically addicted to either drugs or alcohol.

Counsel is also charged with ineffectiveness in failing to conduct a proper search for family and relatives to present defendant's life story and for failing to retain an expert in the behavioral science field, such as a forensic psychiatrist, to present to the jury a psychiatric analysis of defendant based on his life story. In particular, counsel is asserted to have been ineffective: in failing to locate defendant's sister and two uncles as possible witnesses; and for failing to call as penalty hearing witnesses defendant's mother, his uncles, and defendant himself. Without such evidence, defendant asserts that trial counsel developed no "coherent" trial strategy and provided the jury with no rational basis for exercising mercy.

Riley's claim of ineffective assistance of counsel must be reviewed under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). To establish a claim of ineffective assistance of counsel requiring reversal, a convicted defendant has two burdens. The defendant must first "show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Secondly, defendant must show prejudice, i.e., "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. In applying the dual Strickland test to Riley's claim, we must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

Superior Court, in its unreported decision following evidentiary hearing, carefully addressed each of defendant's contentions and concluded that trial counsel's conduct was not constitutionally deficient under Strickland and pertinent federal authorities. The court found that counsel's search for favorable lay witnesses from defendant's family and relatives was reasonable under the circumstances and that counsel's investigation was thwarted for reasons beyond counsel's control. The court further found that counsel's decision not to call defendant's mother and defendant himself as witnesses in the penalty hearing was reasoned and did not constitute ineffective representation. The court also found that counsel's failure before trial to request funds to retain a psychiatrist or mental health professional to develop a social history of defendant for use in the penalty phase was not, under the circumstances, constitutionally ineffective representation. Finally, the trial court was not persuaded that the recounting of defendant's reasons for resorting to alcohol and drugs would be viewed by the jury with compassion and accepted as a mitigating circumstance.

Our standard of review of a claim of ineffective assistance of counsel determined after evidentiary hearing is well defined. "This Court will not disturb conclusions of fact made by the trial judge which are supported by competent evidence." Albury v. State, Del.Supr., 551 A.2d 53, 60 (1988). Questions as to credibility of witnesses and resolution of conflicts in testimony are solely at the discretion of the trial judge. Id. (quoting Tyre v. State, Del.Supr., 412 A.2d 326, 330 (1980)). Absent an abuse of discretion, this Court will not upset the findings of fact or conclusions of law of the trial judge. Albury, 551 A.2d at 60. We apply this deferential standard in conjunction with the mandate of Strickland that we avoid the "distorting effects of hindsight." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

A.

We first address Riley's claim that trial counsel's investigation of defendant's family in preparation for trial was ineffective. Effective representation by counsel depends upon "adequate investigation and pre-trial preparation." Crisp v. Duckworth, 743 F.2d 580, 583 (7th Cir.1984), cert. denied, 469 U.S. 1226, 105 S. Ct. 1221, 84 L. Ed. 2d 361 (1985). However, the cooperation of both client and family is a prerequisite. See Mitchell v. Kemp, 762 F.2d 886, 890 (11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S. Ct. 3248, 97 L. Ed. 2d 774 (1987). The trial court, after evidentiary hearing, concluded that any shortcomings in counsel's investigation into Riley's life and family for mitigating evidence was attributable principally to defendant's inhibited or protective attitude about his family and to their lack of accessibility. Applying established law, we must affirm the trial court's finding that defense counsel, under the circumstances, adequately investigated and presented mitigating evidence. The finding is supported by the record and clearly is not an abuse of discretion. Albury, 551 A.2d at 60.

The trial court found that trial counsel had conducted an adequate search for family members who might provide mitigating information. The court concluded that trial counsel had located Riley's sister and was not to blame for not locating Riley's two uncles. The record of the evidentiary hearing indicates that a close family friend of Riley's, and counsel's contact person, had in fact informed one of Riley's uncles of the impending trial, but the uncle did not come forward because he found the information was too indefinite. The same contact gave counsel the uncle's name but did not provide counsel with his address. Riley's other uncle conceded that neither defendant nor his family would have known how to reach him in 1982. The trial court found that Riley's sister was "uncooperative."

Defendant, as well as trial counsel, had corresponded with Riley's sister in advance of trial, yet the sister was either unwilling or unable to come forward and assist in Riley's defense. On the record before us, counsel cannot be found ineffective for failing to find Riley's sister when the record clearly indicates her receipt of letters from counsel and defendant and her unwillingness to help the defendant. See Mitchell v. Kemp, 762 F.2d at 890. We decline to find that counsel was ineffective for his failure to locate defendant's uncles as possible witnesses in mitigation. See Porcaro v. United States, 641 F. Supp. 1375, 1386 (D.Mass. 1986).

However, even if defendant's two uncles had been available and willing to testify at trial, defendant has not established that they would have provided the kind of social history testimony envisioned by Dr. Blumberg. Indeed, one of defendant's two uncles testified at the evidentiary hearing that he always considered defendant to be "bright" but that he had seen him only occasionally since they were both very young, and seldom in the five years preceding the crime. This testimony runs counter to Riley's present contention that his poor background and low intelligence should have been emphasized as mitigating factors. On this record, we cannot find trial counsel's investigation of defendant's family to be constitutionally inadequate.

B.

We turn to defendant's claim that counsel was ineffective for not calling as witnesses in mitigation defendant's mother, Gladys Riley (now deceased), and defendant himself. The trial court found "excellent tactical reasons" for trial counsel's decision not to call either witness. It appears from the record that Riley had informed trial counsel in advance of trial that he did not wish to bring out at trial his mother's problems. The record also suggests that Gladys Riley, a chronic alcoholic, had been drinking heavily at the time of the trial. These facts, in addition to counsel's concern over Gladys Riley's cross-examination on the alibi defense, see Riley I, 496 A.2d at 1002, lead us to conclude that the trial court's finding that counsel's decision not to call defendant's mother was "quite reasonable under the circumstances" and cannot constitute an abuse of discretion. See Clanton v. Bair, 619 F. Supp. 1491, 1509 (E.D.Va.1985) (trial counsel not unreasonable in declining to call defendant's mother as a witness at the sentencing phase where defendant did not want mother involved and mother's earlier testimony on cross-examination at state habeas proceeding had revealed defendant's early history of drugs and crime).

Trial counsel testified that his concern over Riley's credibility — from the jury's rejection of his alibi defense — influenced his decision not to have Riley testify. The trial court found that trial counsel had a valid concern over defendant's credibility with the jury. The court's conclusion that counsel's decision was reasonable cannot be found to be an abuse of discretion. Trial counsel's conclusion that any potentially mitigating evidence would "cause more harm than good" was not unreasonable. A trial attorney may make a reasonable judgment to omit evidence because it is of "little persuasive value" or because it might have the effect of "opening the door for harmful cross-examination or rebuttal evidence." Stanley v. Zant, 697 F.2d 955, 965 (11th Cir.1983), cert. denied, 467 U.S. 1219, 104 S. Ct. 2667, 81 L. Ed. 2d 372 (1984). Trial counsel's decision cannot be found to be unreasonable in light of the possibility that defendant's arguably "mitigating" testimony could have backfired with a damaging response from the State. See Mitchell v. Kemp, 762 F.2d at 890.

C.

We now take up trial counsel's asserted failure to secure a psychiatric evaluation of defendant for the purpose of developing a "social history" of defendant as mitigating evidence. The court carefully examined counsel's conduct in this respect and concluded that trial counsel had no knowledge or reason to believe ["no inkling"] that a mental health evaluation of defendant would be appropriate or helpful. In the absence of such a predicate finding, the court concluded that trial counsel's professional judgment to forego a mental health evaluation of defendant was not ineffective conduct as a matter of law. The record and controlling law supports such a finding. Counsel met with defendant on numerous occasions before trial and prepared for trial with the belief that defendant did not suffer from any mental impairment. On the contrary, counsel appraised defendant as being both contentious and strong willed. Defendant had repeatedly differed with counsel on his pretrial strategy and had expressed his independence by preparing and filing several pretrial pro se motions with which counsel disagreed.

In examining trial counsel's conduct in this area, it is necessary to "address not what is prudent or appropriate, but only what is constitutionally compelled." Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 3126, 97 L. Ed. 2d 638, 657, reh'g denied, 483 U.S. 1056, 108 S. Ct. 32, 97 L. Ed. 2d 820 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n. 38, 104 S. Ct. 2039, 2050 n. 38, 80 L. Ed. 2d 657, 672 n. 38 (1984)). Further, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.

We agree with the trial court that it was within defense counsel's professional judgment to forego an investigation into defendant's mental health for the purposes of mitigation. In holding that defense counsel acted reasonably in concluding that a mental health evaluation would not be of assistance, we note with approval the reasoning of the Seventh Circuit:

[A] defense attorney must make decisions over what avenues of defense to pursue. These decisions, in the absence of a clear derogation from professional standards, will be respected. The Sixth Amendment does not require a defense attorney to pursue defenses that are not reasonably suggested by the apparent factual circumstances surrounding the crime charged or the subsequent demeanor and conduct of the client. While one would hope that defense lawyers would routinely reflect upon the mental capabilities of a defendant, in the absence of circumstances that would put a counsel on notice the Constitution cannot be read to mandate a specific inquiry at all times.

United States ex rel. Rivera v. Franzen, 794 F.2d 314, 317 (7th Cir.1986), cert. denied, 479 U.S. 991, 107 S. Ct. 588, 93 L. Ed. 2d 590 (1986). See also Stevenson v. State, Del.Supr., 469 A.2d 797, 800 (1983). The trial court's finding that trial counsel had no indication that a psychiatric evaluation would be a worthwhile course of investigation is supported by the record. The defendant has not met his burden of showing that trial counsel's conduct is "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.

D.

Finally, we address defendant's claim that trial counsel's failure to develop defendant's "social history" left defendant with no "coherent" trial strategy and no argument in mitigation. The court found that trial counsel made a deliberate choice to avoid defendant's upbringing and problems as a youth and instead relied on the character witnesses who were known and available. The trial court found reasonable counsel's choice not to emphasize defendant's background and problems as a youth growing up in Philadelphia. The court found it more likely that a Kent County jury would draw "negative inferences" from hearing a story of defendant's development from a neglected child to a "big city hoodlum." The court concluded that any additional discussion of defendant's background may have been detrimental.

We find no abuse of discretion in the trial court's finding that a reasonable basis existed for counsel's declining to present evidence of defendant's background. In Burger v. Kemp, 483 U.S. at 776, 107 S.Ct. at 3114, 97 L.Ed.2d at 638, the Supreme Court confronted a similar claim of ineffective assistance of counsel based in part on counsel's failure to develop the defendant's troubled family background as a mitigating factor to a sordid crime. As in this case, counsel chose instead to emphasize a co-indictee's culpability. The Court found defense counsel's acts and omissions to be within the "range of professionally competent assistance":

[C]ounsel's decision not to mount an all-out investigation into petitioner's background in search of mitigating circumstances was supported by reasonable professional judgment. It appears that he did interview all potential witnesses who had been called to his attention and that there was a reasonable basis for his strategic decision that an explanation of petitioner's history would not have minimized the risk of the death penalty.

Id. at 794-795, 107 S.Ct. at 3126, 97 L.Ed.2d at 657.

Here as well, the record supports Superior Court's finding that trial counsel did present mitigating evidence. Counsel argued that Riley's co-defendant was the actual killer, yet he received a less severe penalty as a result of a plea bargain. Trial counsel also presented the testimony of five witnesses that defendant was a hard working, nonviolent person, and that the crime lacked the essentials of premeditation, malice or viciousness warranting the death penalty. The trial court found counsel's conduct at the penalty phase to be constitutionally acceptable. We agree. That other witnesses might have been called or that other testimony might have been elicited from those who testified is not a sufficient ground to prove ineffectiveness of counsel. Cape v. Francis, 741 F.2d 1287, 1301 (11th Cir.1984), cert. denied, 474 U.S. 911, 106 S. Ct. 281, 88 L. Ed. 2d 245 (1985). Since counsel's choices appear to have been dictated by sound considerations, we must presume that counsel's actions were purposeful or strategic, absent evidence to overcome this presumption. Stanley v. Zant, 697 F.2d at 970. On the record before us, we find no abuse of discretion in the trial court's conclusion that counsel's acts and omissions were "within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

* * *

For the foregoing reasons, we affirm Superior Court's denial of postconviction relief.

APPENDIX A                               APPENDIX B
FLAMER INSTRUCTIONS[*]                     RILEY INSTRUCTIONS[*]
THE COURT: Members of the                THE COURT: Members of the
jury, you have now heard all             jury, you have now heard all of
the evidence that is going to            the evidence which is going to
be presented during the                  be presented during the
punishment hearing in this               punishment hearing in this
case, and you have heard the             case, and you have heard the
arguments of the attorneys for           arguments of the attorneys for
the State and for the                    the State and for the
defendant. I shall not review            defendant. I shall not review
the evidence which has been              the evidence which has been
presented because you, the               presented, because you the jury
jury, are the sole and                   are the sole and exclusive
exclusive judges of the facts            judges of the facts of the
of the case, of the credibility          case, of the credibility of the
of the witnesses and of the              witnesses and of the weight and
weight and value of their                value of their testimony.
testimony.
I shall now instruct you                  I shall now instruct you
as to the applicable principles          as to the applicable principles

of law governing the punishment          of law governing the punishment
to be imposed in this case. No           to be imposed in this case. No
single one of these                      single one of these
instructions states all of the           instructions states all of the
law applicable to this                   law applicable to this
determination. Therefore, you            determination. Therefore, you
should listen to and consider            must listen to and consider all
all the instructions together.           of these instructions together.
You are to apply the law to              You are to apply the law to the
these facts and in this way              facts and in this way decide
decide the punishment to be              the punishment to be imposed in
imposed in the case.                     the case.
The criminal code says as                 The Criminal Code says as
follows: "Upon a conviction of           follows: "Upon a conviction of
guilt of a defendant of first            guilt of a defendant of first
degree murder, the Superior              degree murder, the Superior
Court shall conduct a separate           Court shall conduct a separate
hearing to determine whether             hearing to determine whether
the defendant shall be                   the defendant should be
sentenced to death or to life            sentenced to death or to life
imprisonment without benefit of          imprisonment without benefit of
probation or parole.                     probation of [sic] parole.
"A sentence of death shall                "A sentence of death shall
not be imposed until the jury            not be imposed unless the jury
finds:                                   finds:
"(1) Beyond a reasonable                  "(1) Beyond a reasonable
doubt at least one statutory             doubt at least one statutory
aggravating circumstance; and            aggravating circumstance; and
"(2) Unanimously                          "(2) Unanimously
recommend[s], after weighing             recommends, after weighing all
all relevant evidence in                 relevant evidence in
aggravation or mitigation which          aggravation or mitigation which
bears upon the particular                bears upon the particular
circumstances or details of the          circumstances or details of the
commission of the offense and            commission of the offense and
the character and propensities           the character and propensities
of the offender, that a                  of the offender, that a
sentence of death be imposed.            sentence of death be imposed.
Where the jury submits such a            Where the jury submits such a
finding and recommendation, the          finding and recommendation, the
Court will sentence the                  Court will sentence the
defendant to death. A finding            defendant to death. A finding
by the jury of a statutory               by the jury of a statutory
aggravating circumstance, and a          aggravating circumstance, and a
consequent recommendation of             consequent recommendation of
death, supported by the                  death, supported by the
evidence, shall be binding on            evidence, shall be binding on
the Court."                              the Court."
The Delaware law specifies                The Delaware law specifies
certain statutory aggravating            certain statutory aggravating
circumstances which the State            circumstances which the State
may contend exist in a                   may contend exist in a
particular case. The law does            particular case. The law does
not specify mitigating                   not specify mitigating
circumstances, but the defense           circumstances, but the defense
may offer evidence relating to           may offer evidence relating to
any mitigating circumstances             any mitigating circumstances
which it contends exist in a             which it contends exist in a
particular case. The State may           particular case. The State may
likewise offer matters in                likewise offer matters in

aggravation besides the                  aggravation besides the
statutory aggravating                    statutory aggravating
circumstances.                           circumstances.
An aggravating                            An "aggravating
circumstance is a factor which           circumstance" is a factor which
tends to make the defendant's            tends to make the defendant's
conduct more serious, or the             conduct more serious, or
imposition of a penalty of               imposition of a penalty of
death appropriate. A                     death appropriate. A
mitigating circumstance is any           "mitigating circumstance" is
factor which tends to make the           any factor which tends to make
defendant's conduct less                 defendant's conduct less
serious or the imposition of a           serious, or the imposition of a
penalty of death inappropriate.          penalty of death inappropriate.
In this case the State                    In this case the defendant
contends that the following              is now convicted of two charges
four statutory aggravating               of first degree murder, Count I
circumstances exist:                     and Count V. However, the
State is proceeding in this
penalty hearing only as to
Count V of the Indictment which
pertains to the felony murder
of James E. Feeley, Sr., and is
not proceeding in this penalty
hearing on Count I which
pertains to the intentional
killing of James E. Feeley, Sr.
The State contends that the
only statutory aggravating
circumstance presented for your
consideration is as follows:
1. The murder was                         "(1) The murder was
committed while the defendant            committed while the defendant
was engaged in the commission            was engaged in the commission
of robbery.                              of the felony of robbery."
2. The defendant's course
of conduct resulted in the
deaths of two or more persons
where the deaths are a probable
consequence of the defendant's
conduct.
3. The murders were
outrageously or wantonly vile,
horrible or inhuman.
4. The murders were
committed for pecuniary gain.
You cannot recommend that                 You cannot recommend that
this defendant be sentenced to           this defendant be sentenced to
death unless you find beyond a           death unless you find beyond a
reasonable doubt that at least           reasonable doubt that at least
one statutory aggravating                one statutory aggravating
circumstance exists.                     circumstance exists.
In this regard an                         In this regard, an
applicable portion of the                applicable portion of the
Delaware law provides that in            Delaware law provides that in
any case where the defendant             any case where the defendant
has been convicted of murder in          has been convicted of murder in

the first degree in violation            the first degree in violation
of 11 Delaware Code, Section             of 11 Delaware Code Section
636(a)(2) that conviction shall          636(a)(2) that conviction shall
establish the existence of a             establish the existence of a
statutory aggravating                    statutory aggravating
circumstance.                            circumstance.
In this case the defendant                In this case, the
has been convicted of violating          defendant has been convicted of
11 Delaware Code, Section                violating 11 Delaware Code
636(a)(2) which reads: "Murder           Section 636(a)(2) which reads:
in the first degree. A person            "Murder in the first degree, a
is guilty of murder in the               person is guilty of murder in
first degree when in the course          the first degree when: (2) In
of and in furtherance of the             the course of and in
commission of a felony, he               furtherance of the commission
recklessly causes the death of           of a felony, he recklessly
another person."                         causes the death of another
person."
Therefore, that statutory                 Therefore, that statutory
aggravating circumstance has             aggravating circumstance has
been established beyond a                been established beyond a
reasonable doubt, and you are            reasonable doubt, and you are
so instructed.                           so instructed.
The law provides that a                   The law provides that a
sentence of death shall not be           sentence of death shall not be
imposed unless you find beyond           imposed unless you find beyond
a reasonable doubt at least one          a reasonable doubt at least one
statutory aggravating                    statutory aggravating
circumstance and unanimously             circumstance and unanimously
recommend, after weighing all            recommend, after weighing all
relevant evidence in                     relevant evidence in
aggravation, including but not           aggravation, including but not
limited to the statutory                 limited to, the statutory
aggravating circumstance or              aggravating circumstance or
circumstances that you have              circumstances that you have
already found to exist, and              already found to exist, and
mitigation which bears upon the          mitigation which bears upon the
particular circumstances or              particular circumstances or
details of the commission of             details of the commission of
the offense and the character            the offense and the character
and propensities of the                  and propensities of the
offender, that a sentence of             offender, that a sentence of
death be imposed. You are to             death be imposed. You are to
weigh any mitigating factors             weigh any mitigating factors
against the aggravating factors          against the aggravating factors
to determine the penalty.                to determine the penalty.
If you have a reasonable                  If you have a reasonable
doubt about the existence of             doubt about the existence of
any statutory aggravating                any statutory aggravating
circumstance, you must give the          circumstance, you must give the
defendant the benefit of that            defendant the benefit of that
reasonable doubt and find that           reasonable doubt and find that
that statutory aggravating               that statutory aggravating
circumstance does not exist.             circumstance does not exist.
I would remind you a                      I would remind you that
reasonable doubt means a doubt           "reasonable doubt" means a
based upon good and sufficient           doubt based upon good and
reason and common sense.                 sufficient reason and common
sense.

Your unanimous                            Your unanimous
recommendation for the                   recommendation for the
imposition of the death                  imposition of the death
penalty, if supported by the             penalty, if supported by the
evidence, is binding on the              evidence, is binding on the
Court. Similarly, if you are             Court. Similarly, if you are
not unanimous in your                    not unanimous in your
recommendation to impose the             recommendation to impose the
death penalty, or you cannot             death penalty, or if you cannot
agree unanimously as to your             agree unanimously as to your
recommendation, then the Court           recommendation, then the Court
is bound to impose a sentence            is bound to impose a sentence
of life imprisonment without             of life imprisonment without
benefit of probation or parole.          benefit of probation or parole.
In conclusion, a sentence                 In conclusion, a sentence
of death shall not be imposed            of death shall not be imposed
unless you, the jury, find               unless you, the jury, find: (1)
beyond a reasonable doubt at             Beyond a reasonable doubt at
least one statutory aggravating          least one statutory aggravating
circumstance has been                    circumstance has been
established and unanimously              established; and (2)
recommend a sentence of death            Unanimously recommend that a
be imposed after weighing all            sentence of death be imposed
relevant evidence in                     after weighing all relevant
aggravation and mitigation               evidence in aggravation and
which bear upon the particular           mitigation which bear upon the
circumstances and details of             particular circumstances and
the commission of the offense            details of the commission of
and the character and                    the offense and the character
propensities of the offender.            and propensities of the
offender.
Should you fail to agree                  Should you fail to agree
unanimously to either of these           unanimously to either of those
two factors, the Court shall             two matters, the Court shall
sentence the defendant to life           sentence the defendant to life
imprisonment without benefit of          imprisonment without benefit of
probation or parole.                     probation or parole.
As I have previously                      As I have previously
instructed, you have found a             instructed, you have found a
statutory aggravating                    statutory aggravating
circumstance by returning                circumstance by returning a
verdicts of guilty of murder in          verdict of guilty of murder
the first degree in violation            first degree, in violation of
of 11 Delaware Code, Section             11 Delaware Code Section
636(a)(2), recklessly causing            636(a)(2). You will be given a
the death during commission of           written interrogatory on which
a felony. You will be given a            to indicate if you find any
written interrogatory on which           additional statutory
to indicate if you find any              aggravating circumstance. If
additional statutory                     you do not unanimously find
aggravating circumstance. If             beyond a reasonable doubt the
you do not unanimously find              existence of any additional
beyond a reasonable doubt the            aggravating circumstance, you
existence of any additional              should indicate accordingly.
aggravating circumstance, you
should indicate accordingly.
You will next indicate on                 You should next indicate
the written interrogatory that           on the written interrogatory
will be given to you whether             that will be given to you
the jury unanimously recommends          whether the jury unanimously

that a death sentence be                 recommends that a death
imposed.                                 sentence be imposed.
If you recommend the death                If you recommend the death
penalty, you will then indicate          penalty, you will then indicate
on the written interrogatory             on the written interrogatory
which statutory aggravating              which statutory aggravating
circumstance or circumstances,           circumstance or circumstances,
including the violation of 11            including the violation of 11
Delaware Code, Section                   Delaware Code Section
636(a)(2), you relied upon in            636(a)(2), you relied upon in
reaching your decision.                  reaching your decision.
You will be given a                       You will be given a
written interrogatory for each           written interrogatory for the
of the four counts of murder in          one count of murder first
the first degree. There will             degree.
be four interrogatories given
to you and you will mark the                This interrogatory will be
appropriate place on each of             given to you and taken to the
the four interrogatories.                jury room as well as the
There is one interrogatory for           instructions I have just read
each of the four counts or               to you.
charges for murder in the first
degree.                                     I will read these
interrogatories to you now.
Interrogatory to the jury.
Does the jury unanimously
find beyond a reasonable doubt
that the following statutory
aggravating circumstance
existed?
One, the murder occurred
during the commission of the
felony of robbery. Yes, or no.
You will check either one or
the other here on the sheet.
If your answer to the
statutory aggravating
circumstance is "No", place a
check on the appropriate line,
sign this form on the lines
provided below and notify the
bailiff that you are ready to
return to the courtroom where
this form will be presented to
the Judge by the foreman.
If your answer to the
statutory aggravating
circumstance is "Yes", place a
check on the appropriate line
below. Answer the following
question and sign the form on
the lines provided below and
notify the bailiff that you are
ready to return to the
courtroom where this form will
be presented to the Judge by
the foreman.

One, does the jury
unanimously recommend that a
sentence of death be imposed?
Yes or no.
Whatever your decision
will be, you will all have on
the second sheet Foreman, Juror
No. 2, Juror No. 3, Juror No.
4, Juror No. 5, Juror No. 6,
Juror No. 7, Juror No. 8, Juror
No. 9, Juror No. 10, Juror No.
11 and Juror No. 12. All of
you will sign it.
With that I will ask you
to retire for its deliberations
and you will have with you the
instructions and
interrogatories which I have
read to you.

NOTES

[1] The decision was rendered by the judge of Superior Court who had presided over defendant's trial in 1982. Shortly thereafter, the judge retired and the case was reassigned.

[2] Superior Court Criminal Rule 61(i)(3) provides:

(i) Bars to Relief.

* * * * * *

(3) Procedural Default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this Court, is thereafter barred, unless the movant shows

(A) cause for relief from the procedural default and

(B) prejudice from violation of the movant's rights.

[3] We subject the instructions in the instant case and in Flamer to scrutiny under the analysis of Whalen. We do so because Whalen does not announce a "new rule," but flows from existing case law and statutes. Whalen did not break "new ground," nor does it impose a "new obligation" on the State which would make it a new rule. Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 2944, 106 L. Ed. 2d 256, 275 (1989); Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070, 103 L. Ed. 2d 334, 349, reh'g denied, 490 U.S. 1031, 109 S. Ct. 1771, 104 L. Ed. 2d 206 (1989).

[4] The full text of the Whalen instruction is as follows:

Ladies and gentlemen, the sole matter for your determination at this time is the penalty to be imposed upon the defendant for the conviction of first degree murder.

You have heard counsel for the State and the defendant express their positions on which penalty should be imposed. While it is proper for you to consider the position of each attorney upon this issue, the matter is entirely within your discretion after considering the evidence and applying the law contained in these instructions.

In reaching your determination, the jury may consider any mitigating or aggravating circumstances raised by the evidence either at this hearing or at the trial.

The sentence of death shall not be imposed unless you find unanimously and beyond a reasonable doubt at least one statutory aggravating circumstance and then unanimously recommend after weighing all the relevant evidence in aggravation or mitigation which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender that a sentence of death be imposed.

You may consider the following statutory aggravating circumstance: In this case the murder occurred during the commission of rape.

A recommendation of death is binding upon the Court. If you do not recommend the death penalty, a sentence of life imprisonment without benefit of probation or parole will be imposed.

A reasonable doubt is defined as a substantial doubt.

I will hand you a copy of these instructions and a questionnaire which your forelady will fill out. It is self-explanatory, and when you return to the courtroom it will simply be handed to the clerk and read in open court by me.

Whalen, 492 A.2d at 556. Compare Appendices A and B.

[*] These Appendices contain the full text of the jury instructions in Flamer and Riley. However, the paragraphs and spacing have been realigned for ease of comparison.