Summary:

Jackson and accomplice Anthony Lachette decided to burglarize a house in order to obtain money to buy marijuana. Lachette suggested they break into the home of Elizabeth Girardi and he was acquainted with one of her children. No one was at home when the two broke into the house through the back door.

Once inside, the two gathered property that included jewelry, rare coins, compact discs, firecrackers, and a camera. After placing the stolen property in paper bags, Jackson and Lachette left the house the way they entered. As they headed toward the driveway, where Jackson had parked the car, they saw Mrs. Girardi, who had arrived home and was walking towards Jackson's car.

Lachette decided to flee despite Jackson's attempt to persuade him to stay. Lachette then dropped his bag and ran off, leaving Jackson behind. After Lachette ran off, Jackson grabbed an ax from a shed and confronted Mrs. Girardi in the driveway, striking her several times in the face. Accomplice Lachette testified against Jackson at trial, pleaded guilty to burglary and conspiracy and was released from prison in 1996.

Two different juries recommended the death penalty for Jackson, the first after deliberating less than two hours. Jackson told a second jury in 1995 that he was a changed person and apologized to Girardi's family. "I can't explain what happened," he said, according to one news account at the time. "I don't know what happened — a mistake." The jury voted for the death penalty 11-1.

Citations:

Jackson v. State, 643 A.2d 1360 (Del. 1994). (Direct Appeal-Reversed)
Jackson v. State, 684 A.2d 745 (Del.Supr. 1996). (Direct Appeal-Affirmed)
Jackson v. State, 770 A.2d 506 (Del.Supr. 2001). (PCR)
Jackson v. Carroll, 161 Fed.Appx. 190 (3d Cir. 2005) (Habeas).

Last Words:

"Are the Girardis in there? Christopher and Claudia - if you are in there, I've never faulted you for your anger. I would have been mad myself," [But] I didn’t take your mother from you.” He then suggested that his co-defendant, Tony Lachette, was the killer. "Tony's laughing his ass off right now because you're about to watch an innocent man die. This isn't justice."

Last Meal:

Steak, a baked potato, potato skins, corn and a soda.

Inmate: Robert W. Jackson, III
DOB: 05/24/1973
Race: White
Gender: Male
Offense: Murder 1st
Method of Execution: Lethal Injection
Convicted of killing Elizabeth Girardi with an ax during a botched robbery at her Hockessin home in 1992.

NOTE: In June of 1986 legislation was enacted that made lethal injection the mode of execution in Delaware. The law also stipulates that persons sentenced to death prior to the laws enactment, have the choice of choosing their mode of execution (either hanging or lethal injection). On April 11, 1994, Governor Thomas R. Carper signed into law legislation (Senate Bill #57) that mandates the time that an execution is to be carried out (between the hours of 12:01 a.m. and 03:00 a.m).

Robert W. Jackson, III, 32, was sentenced to death for the 1992 slaying of Elizabeth Girardi, 47, who was found dead outside of her Hockessin home.

On April 3, 1992, Jackson and his friend Anthony Lachette broke into the home of Elizabeth Girardi with the intent of stealing items that could be pawned for money to buy marijuana.

Elizabeth encountered the men in her driveway as they were leaving. According to court records, Lachette dropped the stolen items and fled. Jackson struck Girardi with a 4.7-pound splitting ax he took from a nearby woodshed. When Jackson heard his victim moan, he struck her three more times.

Lachette pled guilty in 1993 to reduced charges of second-degree burglary and conspiracy and was sentenced to five years in prison and testified against Jackson.

Lachette testified that Jackson told friends, "I think there's something wrong with me -- I don't feel any remorse." "He was real excited," Lachette told jurors. "It was like he got off on it." Lachette was released from prison in 1996, authorities said.

After Jackson's conviction, Delaware's high court found that the sentencing phase of his trial was flawed and ordered a new one. His conviction was upheld. In September 1995, a second jury recommended 11-1 to execute Jackson.

After Jackson's execution was stayed by federal district court judge Sue L. Robinson, Girardi's son, Christopher, 34, said he was disappointed. "What is taking place is really a disgrace," he said, and the idea that lethal injection is cruel and unusual is "ludicrous." Girardi said the system allows criminals too much time for appeals.

"When do we take into consideration the victim's rights? He took my mother's life in an extremely brutal fashion. The problem with the system is I don't believe the punishment fits the crime. I lost my mother, and she will never know her grandchildren," he said.

Jackson put to death by lethal injection

By Esteban Parra - DelawareOnline.com

Jul. 29, 2011

Robert W. Jackson III died by lethal injection at 12:12 a.m. today, the first man to be executed in Delaware in nearly six years. Jackson, 38, was convicted of killing Elizabeth Girardi during a botched robbery at her Hockessin home in 1992. Jackson repeatedly struck the 47-year-old with an ax. He was 18 at the time of the killing. Jackson was the first person put to death in Delaware since Brian D. Steckel on Nov. 4, 2005. He is the 15th person put to death in Delaware since 1992, the year that marked Delaware's first execution since the state reinstated the death penalty in 1961.

"The state of Delaware this morning carried out the penalty for Robert W. Jackson III for the brutal murder of Elizabeth Girardi," Gov. Jack Markell said in a statement." Mr. Jackson's death sentence was recommended by a jury, imposed by a judge, and reviewed by state and federal appellate courts at all levels. It is my prayer that his victim rests in peace and her family finds some closure. May God have mercy on Mr. Jackson."

Markell had earlier rejected a request by Jackson's attorneys for a reprieve for their client. Well before a 5 p.m. stay-of-execution hearing before three federal judges, employees at the Vaughn Correctional Center near Smyrna were making final arrangements for the meal, the lethal chemical cocktail, the 21 witnesses, the separate protest areas for pro- and anti-death-penalty activists and additional security details.

Before any word was issued on a possible reprieve, Jackson ate his last meal of steak, baked potato, potato skins, corn and soda, prison officials said. He spent his last hours sleeping, eating, reading, writing letters, talking to staff and visiting with family and attorneys. After his death, Jackson's body was turned over to the state Medical Examiner's Office, according to the Department of Correction.

After Markell refused to issue a reprieve, a curtain was opened at 12:02 a.m. in the execution building allowing witnesses to look in the chamber where Jackson, dressed in white prison garb and white Adidas sneakers, was strapped to a gurney. Each arm had an intravenous line attached. The lines ran into an adjacent room. Correction Commissioner Carl Danberg leaned into the chamber from the doorway and said, "Warden, you are authorized to proceed."

Warden Perry Phelps then told Jackson he could speak. Jackson lifted his head from the gurney and looked around the chamber. He directed his final words to Girardi's surviving children -- Christopher and Claudia. "Are the Girardis in there?" he asked as he lay strapped down on the gurney. There was no response. "Christopher and Claudia -- if you are in there, I've never faulted you for your anger. I would have been mad myself." He then said he did not murder their mother, suggesting that his co-defendant, Tony Lachette, was the killer. Lachette was Jackson's co-defendant but testified against him and was allowed to plead guilty to second-degree burglary and conspiracy. "Tony's laughing his ass off right now because you're about to watch an innocent man die," Jackson said. "This isn't justice."

After his two-minute statement, he rested his head back down on the gurney. Jackson made no other comments. He made a few snoring sounds and his chest heaved several times. As Phelps watched Jackson, he occasionally mopped the inmate's brow with a wash cloth. At 12:06, Phelps looked over his right shoulder, signaling for another Department of Correction official to close the curtain, at which time he checked to see whether Jackson was still conscious. "Inmate Jackson, can you hear me?" Phelps said. "Inmate Jackson, can you hear me?" There was no reply.

About a minute later, the curtains were opened and witnesses watched the color drain from Jackson's face for about five minutes. The curtain was then closed again, and Jackson was pronounced dead. Outside the prison, opponents of the death penalty held vigils and rallies throughout the state Thursday. At the prison, about 15 protesters -- including one who favored executions -- stood under umbrellas in steady rain at about 11 p.m. That number later grew to about 20.

Most were holding signs that said, "Don't kill in my name," "Abolish the death penalty" and "An eye for an eye makes the world blind." When Jackson's death was announced after midnight, they stood in a circle and sang, "We Shall Overcome." They also were called to prayer by the Rev. Bruce Gillette of Limestone Presbyterian Church in Wilmington. "The news of the night is not good," he said. At the end of the song, they raised their candles. Kevin O'Connell of Wilmington, the co-founder of Delaware Citizens Opposed to the Death Penalty and an assistant public defender for the state, said, "I think its something we expected" and "it brings sadness that another life was taken in our names." Rose Wilson, 52, of Townsend, was the only person among the group who favored the death penalty. Her aunt and uncle were killed at a Dover hotel some years ago, and the case was never solved. "What about that woman? I'm speaking for her," she said of Girardi. "The woman murdered didn't get a chance to leap before he killed her." But Kathleen MacRae of Wilmington, who also is executive director of the Delaware ACLU, said the execution was "an abuse of government power." "Answering violence with violence is bad public policy," she said, adding convicted killers "have to live with what they've done."

Jackson's attorneys continued to maintain his innocence after the execution was announced. "The state of Delaware executed an innocent man tonight and ought to be ashamed of itself," said Shawn Nolan, one of Jackson's lawyers. "Bobby was a good man. He didn't kill Elizabeth Girardi. .. Our condolences to the Girardi family who have had to live with this nightmare for years. Bobby was always sorry that he participated in the burglary that ended in such a terrible way." Marc Bookman, executive director of the Atlantic Center for Capital Representation, a nonprofit that backed Jackson, also said he was not Girardi's killer. "Later evidence showed he was an innocent man, and he never got one single chance to present that evidence in a court of law," he said in a statement.

But Joseph Hurley, Jackson's first defense attorney, said the death penalty was appropriate for his former client. Hurley said he stepped down after a hearing in which he was questioning a witness who was describing Jackson's account of what happened in the brutal attack. "At that moment, I looked to my left, and Jackson is positioned at our table, and he looks at me and laughs," Hurley said. "At that moment, he went from client to animal." Jackson's suit, alleging the way the state carried out executions amounted to unconstitutionally cruel and unusual punishment, was later turned into a class-action lawsuit on behalf of all Delaware death-row inmates. Robinson dismissed the lawsuit last year after Delaware adopted a new set of execution protocols designed to ensure the process was professional and humane. Jackson's attorneys unsuccessfully tried to halt the execution Tuesday by objecting to the state's new three-chemical method of lethal injection.

For Jackson's execution, the Department of Correction for the first time performed a consciousness check to ensure that the pentobarbital -- the first of the three chemicals administered -- was functioning. The new protocol includes the shaking of the shoulder, rub of an eyebrow or calling out the inmate's name. This happened two minutes after the pentobarbital was administered. Curtains were closed so witnesses couldn't view this check. Once officials believe Jackson is unconscious, they were to administer the remaining lethal chemicals.

Robert W. Jackson III executed early Friday morning

By Danielle Bouchat-Friedman - CommunityPub.com

Jul 29, 2011

Smyrna — While most of Delaware slept, a bleak chapter in the lives of a Hockessin family was finally put to rest after nearly two decades. Robert W. Jackson III, the man convicted in the 1992 ax murder of 47-year-old Elizabeth Girardi during a botched robbery, was executed by lethal injection at the James T. Vaughn Correctional Center north of Smyrna. He was pronounced dead at 12:12 a.m.

Jackson’s last meal consisted of steak, a baked potato, potato skins, corn and a soda. During his final days, he has been sleeping, eating, reading, writing letters, talking with staff, and visiting with family and his attorneys, according to the Department of Corrections. Governor Jack Markell denied Jackson’s request for a reprieve, and two requests Wednesday by his lawyers to delay the execution went ungranted.

At 12:02 a.m. the execution began in the execution chamber. Witnesses watched Jackson, dressed in all white, strapped down to table with intravenous lines in each arm. James T. Vaughn Correctional Center Warden Perry Phelps asked Jackson if he had any last words. Jackson at first directed his words to Christopher and Claudia – the victim’s surviving children. “Are the Girardis in there? If you are in there, I've never faulted you for your anger. I would have been mad myself," he said. "[But] I didn’t take your mother from you.”

Jackson then hinted that his accomplice, Tony Lachette, was actually the guilty party in the case. Indeed, his lawyers argues that Lachette privately confessed to the killing to a number of people, but those claims were never corroborated by investigators. “Tony’s laughing his ass off right now because you’re about to watch an innocent man die," Jackson said. "This isn’t justice.”

Following his statement, he put his head down, and his eyes never opened again. He breathed deeply a few times, and even began to snore. At 12:06 a.m. the curtain closed, signaling the consciousness check. Warden Perry could be heard saying twice, "Inmate Jackson, can you hear me?" No response came from Jackson.

Official Witnesses

Sen. Bruce Ennis (14th District)
Dennis Godak, NCCPD
Lt. Philip Klink, Smyrna PD
Robert Larrimore, NCCPD
Rebecca McBride, DOC
Scott McLaren, NCCPD
Russell McNatt, DSP
Major Nathanial McQueen, DSP
Tim Mullaney, Del. Victim's Compensation Assistance Program
Robert O'Neill, Delaware Dept. of Justice

The curtain was then redrawn for another few minutes as witnesses watched Jackson lay still. When the curtain closed a final time, Jackson was pronounced dead. Correction officials would not say whether anyone Girardi's family witnessed the execution.

Among the ten official witnesses was New Castle County Public Safety Director Scott McLaren. The ax murder was McLaren's first-ever murder investigation with the county police. "To have that be your first homicide, an ax murder in the middle of Hockessin, was a lot of stress, but the suspect was in custody in seven days," he told the Community News in a 2009 interview. Following Jackson’s execution, Govenor Markell issued this statement: “The State of Delaware this morning carried out the penalty for Robert W. Jackson III for the brutal murder of Elizabeth Girardi. Mr. Jackson’s death sentence was recommended by a jury, imposed by a judge, and reviewed by state and federal appellate courts at all levels. It is my prayer that his victim rests in peace and her family finds some closure. May God have mercy on Mr. Jackson.”

About a dozen protesters stood outside the prison in the beating rain to oppose the death penalty, while a single woman - Townsend's Rose Wilson - stood on the opposite of the street and showed her support for the death penalty. Geoff Sawyer, 66, from Wilmington believes that capital punishment needs to be stopped. “The United States and Delaware condones this act of barbarism," Sawyer said. "I think Jackson should get life in prison without parole." Wilson said Jackson deserved his fate. “I live three miles from here and I pass here every single day," she said. "Mercy was not shown to that woman."

Man executed in Delaware for killing woman with ax

By Jessica Gresko - Associated Press

July 29, 2011

SMYRNA, Del. (AP) — Delaware carried out its first execution since 2005 early Friday, putting to death a man who was convicted of killing a woman with an ax during a burglary nearly two decades ago. Robert Jackson III was pronounced dead at 12:12 a.m. after being given a lethal injection at the James T. Vaughn Correctional Center in Smyrna.

Jackson, 38, lifted his head when asked for his last words shortly after midnight. Searching the window between the execution chamber and witnesses, he asked if the two children of the victim, Elizabeth Girardi, were watching. "Are the Girardis in there? Christopher and Claudia, if you are in there, I've never faulted you for your anger. I would have been mad myself," he said, going on to deny he killed their mother. He suggested that his accomplice in the burglary, Anthony Lachette, was the killer. "Tony's laughing his ass off right now because you're about to watch an innocent man die. This isn't justice," he said before putting his head back down and closing his eyes.

When the execution began, Jackson started making a snoring sound, his lips sputtered and his breath began to quicken. Prison officials closed the curtain between the execution chamber and witnesses after about four minutes to check whether he was conscious, calling out twice, "Inmate Jackson, can you hear me?" There was no response. When the curtain reopened a minute later, Jackson made no more movements or sounds. From start to finish, the execution took about 10 minutes.

A small group gathered outside the prison to protest, though one woman came to express her support for the execution. One of the protesters, 68-year-old Sally Milbury-Steen, said she did not believe the death penalty is a deterrent. "As a citizen, I'm so chagrined that my tax dollars are being used," Milbury-Steen said. The lone supporter, Rose Wilson, said Jackson was getting what he deserved and that his death would be painless, unlike his victim's. "When he hacked that woman he didn't say, 'I'm going to put you to sleep before I kill you,'" Wilson, 52, of Townsend, Del., said.

Jackson's execution was the first time Delaware included pentobarbital as one of three drugs used to carry out an execution. Delaware switched to the drug after a nationwide shortage of sodium thiopental, the previous drug the state used to sedate an inmate before administering two other lethal drugs. Eight other states have already used pentobarbital to carry out executions, according to the Washington-based Death Penalty Information Center.

Jackson's execution followed a series of legal challenges that stretched into the hours before he was executed. His lawyers had argued that Jackson should be allowed to challenge the state's switch to pentobarbital as an execution drug, saying it posed a risk of pain and suffering. But the U.S. Supreme Court and Delaware Gov. Jack Markell ultimately denied requests to stay the execution. Jackson was sentenced to death for the 1992 killing of the 47-year-old Girardi, a resident of Hockessin.

"In a perfect world, none of this would have happened," said Girardi's daughter, Claudia Desaulniers, who was 15 at the time of the killing. Desaulniers said she thinks about her mother every day, calling her a "loving person." She said even now she is startled at unexpected noises in her home, like a floor creaking, worried she might be the victim of a crime.

According to testimony presented at trial, Girardi was killed after she returned home on April 3, 1992, and found Jackson, then 18, and an accomplice leaving her home with stolen jewelry and other items. While Jackson's accomplice ran, Jackson used an ax he found in a woodshed to strike Girardi repeatedly in the head. Lachette, Jackson's accomplice, testified against him at trial, where it was revealed that the pair planned the burglary to get money to buy marijuana. Lachette pleaded guilty to burglary and conspiracy and was released from prison in 1996.

Two different juries recommended the death penalty for Jackson, the first after deliberating less than two hours. Jackson told a second jury in 1995 that he was a changed person and apologized to Girardi's family. "I can't explain what happened," he said, according to one news account at the time. "I don't know what happened — a mistake." The jury voted for the death penalty 11-1.

Jackson is the 15th person Delaware has put to death since 1992 when the state again began executions after a decades-long hiatus. The last inmate to be executed by the state was Brian Steckel, who was executed in 2005 for raping and strangling a neighbor, Sandra Lee Long, who burned to death in a fire Steckel set. While awaiting trial in Long's 1994 murder, Steckel sent taunting and threatening letters to people involved in the case, including Long's mother.

A total of 19 other inmates, all men, are currently on death row in the state.

Convicted ax murderer is executed in Delaware

By Dave Warner Reuter News

Jul 29, 2011

PHILADELPHIA (Reuters) - A convicted ax murderer, on Delaware's death row for some 18 years, was executed on Friday at the state prison in Smyrna. Robert W. Jackson III, 38, was put to death by lethal injection shortly after midnight, Delaware Governor Jack Markell announced.

He was sentenced to death for killing Elizabeth Girardi, 47, with blows from an ax he wielded during a 1992 burglary attempt at her home in Hockessin, Delaware. It was Delaware's first execution since 2005.

Governor Markell denied a last-minute request for a reprieve, noting that the U.S. Third Circuit Court of Appeals and the U.S. Supreme Court had already decided not to stay the execution. "Mr. Jackson's death sentence was recommended by a jury, imposed by a judge, and reviewed by state and federal appellate courts at all levels," the governor said in a statement issued at 12:12 a.m. local time, shortly after the death of Jackson, who was 18 at the time of the murder. "It is my prayer that his victim rests in peace and her family finds some closure, May God have mercy on Mr. Jackson," Markell said.

It was the 30th execution in the U.S. this year compared with 46 in all of 2010, according to the Death Penalty Information Center.

Girardi's family recalls a life taken too soon

By Chris Barrish - DelawareOnline.com

Jul. 29, 2011

On the eve of her killer's execution, Elizabeth Girardi was remembered Thursday as a devoted mother who was adjusting to life as a divorcee at age 47 when she was confronted by a burglar at her Hockessin home and struck repeatedly with an ax.

"She was a kind, caring woman who looked out for everybody else," said her son Christopher, who was 20 when Robert W. Jackson III murdered her in April 1992. "She was selfless and concerned about integrity and responsibility and discipline."

A native of the Wilmington area, Elizabeth Girardi attended Mount Pleasant High School and worked most of her adult life as a bookkeeper at a Concord Pike furniture store. She was a private woman who enjoyed the company of close friends, but, most of all, enjoyed outings with her two children as they grew up, including vacations in Stone Harbor, N.J.

Her daughter, Claudia, was a student at Archmere Academy when her mom was killed. "She was more concerned about keeping her family happy," Christopher Girardi said. "We'd go to the beach, a museum or a park and have good quality time, like playing a game."

Her former husband, Edward, had high praise for Elizabeth, who was killed about a year after their divorce. "She was a fantastic woman, an elegant, sophisticated, quiet woman," Edward Girardi said. "She was a very strong, passionate woman as well."

Edward's brother Earl also spoke of his high regard for his former sister-in-law. "She was a lovely person. You could not have met a better person," Earl Girardi said. "She lived a wonderful life that ended in tragedy."

In April 1992, Christopher was away at college, and Claudia was living with her mother in an old, two-story farmhouse in the 700 block of Old Wilmington Road, near the Thornberry development. "It was hard on her being a single parent, as it is for any single parent these days," Christopher Girardi said. For his mother, April 3, 1992, was a day for mundane errands, including filling up her gas tank and returning a movie to the video store. She retuned home to find Jackson standing in her driveway, holding something behind his back. With him was his accomplice, Anthony Edward Lachette, an old friend of Christopher Girardi's.

The pair had been burglarizing the Girardi house to buy marijuana. They broke in through a rear door and took jewelry, rare coins, a camera, compact discs and firecrackers -- stuffing them into paper bags, court records show. After seeing Elizabeth Girardi, Lachette ran off, but Jackson ran to a shed, grabbed an ax and after a struggle, used the weapon to strike Girardi several times in the face. He loaded the stolen items into his car and then, hearing Girardi moaning, struck her again with the ax. In all, she was struck at least seven times.

Lachette later testified against Jackson and pleaded guilty to burglary and conspiracy. Jackson got a first-degree murder conviction. Recalling his mother, Christopher Girardi said, "She would do anything for you. She was one of those people who you say, 'The good die young.' " Saying he planned to be a witness to Jackson's death by lethal injection, Christopher Girardi said, "There will never be closure, and nobody can ever bring my mom back, but I'm glad to see the justice system is prevailing."

Jackson v. State, 643 A.2d 1360 (Del. 1994). (Direct Appeal-Reversed)

Defendant was convicted in the Superior Court, New Castle County, of capital murder and was sentenced to death. The Supreme Court, Walsh, J., held that: (1) nighttime search of defendant's residence was warranted, and thus evidence obtained was admissible, and (2) admission of taped conversations between defendant and state agent during sentencing violated defendant's Sixth Amendment right to counsel. Conviction affirmed; sentence vacated; matter remanded.

WALSH, Justice:

This is an appeal from the imposition of the death penalty in the Superior Court. The appellant, Robert W. Jackson, III (“Jackson”), was convicted of two counts of Murder First Degree, Burglary Second Degree, Conspiracy Second Degree, Robbery First Degree, and three counts of Possession of a Deadly Weapon during the Commission of a Felony. Following a sentencing hearing, the jury unanimously found that the State had established two statutory aggravating circumstances beyond a reasonable doubt and, by a vote of 11–1, found that the aggravating circumstances outweighed the mitigating circumstances found to exist. 11 Del.C. § 4209(c)(3). The Superior Court judge, undertaking the required statutory analysis, reached the same ultimate conclusion.FN1 11 Del.C. § 4209(d). Accordingly, he sentenced Jackson to death for each of his two convictions for Murder First Degree. FN2

FN1. The judge, however, considered the two statutory aggravating circumstances urged by the State, the murder was committed during a burglary and during a robbery, to constitute only one statutory aggravating circumstance. See 11 Del.C. § 4209(e)(1)j. FN2. Jackson was also sentenced to 10 years imprisonment for each of the weapons convictions, 10 years for the robbery conviction, four years for the burglary conviction, and two years for the conspiracy conviction.

On appeal, Jackson challenges both his convictions and death sentences. We find no error with respect to the guilt/innocence phase of Jackson's trial and therefore affirm his convictions. However, we conclude that Jackson's Sixth Amendment right to counsel, as applied to the States through the Fourteenth Amendment, was violated by the introduction of taped conversations between Jackson and a state agent into evidence during the sentencing hearing. We cannot conclude that this constitutional error was harmless beyond a reasonable doubt. Accordingly, the sentences of death are vacated and the matter is remanded for a new sentencing hearing.

I

The evidence presented at trial reflected the following events. During the afternoon of April 3, 1992, Jackson and Anthony Lachette (“Lachette”) decided to burglarize a house in order to obtain money to buy marijuana. Lachette suggested they break into the home of Elizabeth Girardi. Lachette was familiar with the residence since he was acquainted with one of Mrs. Girardi's children. No one was at home when the two broke into the house through the back door. Jackson wore a pair of gardening gloves he had brought with him. Once inside, the two gathered property that included jewelry, rare coins, compact discs, firecrackers, and a camera. After placing the stolen property in paper bags, Jackson and Lachette left the house the way they entered. As they headed toward the driveway, where Jackson had parked the car, they saw Mrs. Girardi, who had arrived home and was walking towards Jackson's car. Lachette decided to flee despite Jackson's attempt to persuade him to stay. Lachette then dropped his bag and ran off, leaving Jackson behind.

After Lachette ran off, Jackson grabbed an ax from a shed and confronted Mrs. Girardi in the driveway. A struggle ensued, during which Mrs. Girardi fell to the ground, whereupon Jackson struck her several times in the face with the ax. Jackson then loaded his car with the stolen property. Before leaving, Jackson noticed that Mrs. Girardi was still alive. He struck her several more times in the face with the ax, killing her, and then left the scene. Shortly thereafter, Jackson found Lachette walking along the road and picked him up. Jackson then told Lachette that he had killed Mrs. Girardi. Lachette noticed blood on Jackson's gloves and pant legs. Over the course of the next week, Jackson watched television news reports and spoke with Lachette and James Burton (“Burton”), his roommate and longtime friend, about the Girardi murder. During that time, Jackson told Burton that he had killed Mrs. Girardi.

On April 9, 1992, Burton and Carl Roca (“Roca”), a friend, sold a bracelet stolen in the Girardi burglary to a pawn shop in Elsmere. Pawn shop owners in the area had been alerted by the police to be on the lookout for certain pieces of property stolen from the Girardi residence. The pawn shop owner contacted the police, who, following an investigation, obtained warrants authorizing the search of Burton's and Roca's residences and also authorizing the police to take Burton and Roca into custody to obtain clothing, fingerprints, and hair and blood samples from their persons.

When the police arrived at Burton's residence, they learned from his parents that he had moved out and was living with Jackson. Conducting surveillance in the area near Burton's and Jackson's apartment, police observed Burton and two companions enter a car and drive off. The police followed, eventually stopping the car for two motor vehicle violations. Lachette was driving, Jackson was in the front passenger seat, and Burton was in the rear seat. Upon opening the driver's door, the police observed a 14–inch metal pipe partially concealed between the driver's seat and door. After Lachette exited the vehicle, the police folded the driver's seat-back forward to allow Burton access to the door. Upon doing this, a plastic bag containing marijuana was discovered in the folding area where the seat-back and cushion meet. All three of the vehicle's occupants, including Jackson, were then arrested for carrying a concealed deadly weapon and possession of marijuana. Before placing Jackson in a holding cell, the police, pursuant to standard procedures, removed certain articles of property and clothing from his person, including his sneakers. Later that night, when police discovered that Lachette and Jackson were involved in the Girardi burglary/homicide, the sneakers were seized as evidence. The sole of one of Jackson's sneakers was later determined to be consistent with foot prints found at the murder scene.

While in custody on the concealed weapon and marijuana charges, Lachette confessed to his role in the burglary and implicated Jackson in the Girardi murder. Subsequently, he gave a full statement to the police regarding the details of the burglary and Jackson's remarks regarding the murder. Additionally, Burton eventually gave a full statement to police, which included details of Jackson's remarks to him regarding the murder. Both Lachette and Burton testified for the State at trial. Following Lachette's initial confession, Jackson was arrested for the burglary/murder. FN3. Lachette was also arrested and indicted on various charges, including Murder First Degree. He subsequently pleaded guilty to Burglary Second Degree and Conspiracy Second Degree.

II

Jackson asserts five claims of error with respect to the guilt/innocence phase of his trial: (1) the trial court erred in “death qualifying” the jury; (2) the trial court erred in denying his motion to strike from evidence his sneakers seized without a warrant; (3) the trial court erred in failing to grant his motion to suppress the fruits of a nighttime search of his residence; (4) the trial court abused its discretion in permitting testimony regarding Jackson's desire to microwave Girardi's cat; and (5) the trial court abused its discretion in admitting into evidence certain hearsay testimony. We address these claims seriatim.

A.

Jackson asserts that it was plain error for the trial judge to strike for cause four potential jurors because they expressed personal reservations concerning the imposition of the death penalty. See Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). Since the trial judge is the ultimate sentencer under Delaware's revised death penalty statute, 11 Del.C. § 4209, Jackson argues that there is no reason to strike jurors who entertain death penalty reservations because they are not called upon to pass sentence. Accordingly, Jackson concludes, he was improperly denied a trial by an impartial jury of a cross-section of his peers. Jackson acknowledges that this Court rejected an identical argument in State v. Cohen, Del.Supr., 604 A.2d 846, 855–56 (1992).

Although not the final arbiters of punishment, jurors still play a vital and important role in the sentencing procedure. The jury sits as the conscience of the community in deciding whether to recommend life imprisonment or the death penalty. Any personal views which would prevent its members from impartially performing this solemn responsibility in accordance with the trial court's instructions are impermissible and contrary to law. Id. at 856 (citations omitted). We adhere to our view in Cohen and reject this claim of error.

B.

Jackson next claims that the Superior Court erred in refusing to suppress as evidence his sneakers, which were taken when he was placed in a holding cell while in custody for the concealed weapon and drug charges. When police later learned that Jackson was involved in the Girardi murder, the sneakers were seized as evidence. The evidentiary value of the sneakers was two-fold: they had spots of human blood on them, and the sole of one of the sneakers matched a footprint left at the murder scene. Jackson argues that police did not have probable cause to arrest him on the weapons and drug charges, and therefore, the sneakers, fruit of an illegal arrest, were improperly admitted into evidence. Since we agree with the trial judge that the police had probable cause to arrest Jackson, we find no error with respect to the admission into evidence of the sneakers.

A police officer may make a warrantless arrest for any felony, such as carrying a concealed deadly weapon, or for a misdemeanor committed in his presence, such as possession of marijuana, if he has reasonable ground to believe the person to be arrested has committed the crime. 11 Del.C. § 1904. Reasonable ground means probable cause. Thomas v. State, Del.Supr., 467 A.2d 954, 957 n. 3 (1983). Once a person is lawfully in custody, police may impound the arrestee's clothing and personal effects pursuant to standard practice. United States v. Edwards, 415 U.S. 800, 804–05, 94 S.Ct. 1234, 1237–38, 39 L.Ed.2d 771 (1974). Here, the sneakers were taken pursuant to a written police policy of impounding an arrestee's footwear before placing him in a holding cell. When the evidentiary value of the sneakers was realized, they were properly seized as evidence. See id. See also United States v. Oaxaca, 9th Cir., 569 F.2d 518, 523–24, cert. denied, 439 U.S. 926, 99 S.Ct. 310, 58 L.Ed.2d 319 (1978). Thus, the dispositive question is whether police had probable cause to arrest Jackson for the weapon and/or marijuana charges.

“Probable cause is an elusive concept which avoids precise definition.... It lies somewhere between suspicion and sufficient evidence to convict.” Thompson v. State, Del.Supr., 539 A.2d 1052, 1055 (1988). “To establish probable cause, the police are only required to present facts which suggest, when those facts are viewed under the totality of the circumstances, that there is a fair probability that the defendant has committed a crime.” State v. Maxwell, Del.Supr., 624 A.2d 926, 930 (1993) (emphasis in original). “A finding of probable cause does not require the police to uncover information sufficient to prove a suspect's guilt beyond a reasonable doubt or even to prove that guilt is more likely than not.” Id. FN4. Jackson's reliance on Holden v. State, Del.Supr., 305 A.2d 320 (1973) and Crawley v. State, Del.Supr., 235 A.2d 282 (1967) is therefore misplaced since those cases dealt with the sufficiency of the proximity evidence to sustain a conviction, not probable cause to arrest.

Jackson concedes that the existence of the pipe and drugs gave rise to probable cause to believe that two crimes were being committed. He argues, however, that his presence in the vehicle, without more, was insufficient to establish probable cause to arrest him for the crimes. In our view, probable cause clearly existed to arrest Jackson for possession of marijuana. Since a lawful arrest for the drug charge sustains the subsequent seizure of his sneakers, we need not decide whether the police had probable cause to arrest Jackson on the weapon charge.

Having found contraband in the vehicle occupied by Jackson, Lachette and Burton, the police had knowledge that a crime was being committed by one, two or all three occupants of the car. There was no way of identifying the responsible party or parties at that time, except for the fact that each individual was an occupant of the vehicle in which the contraband was found in a non-secretive location. In view of the nature of illegal drugs and the fact that they are frequently used by individuals in groups, there was a reasonable likelihood that the marijuana was jointly possessed by all three occupants. Under the totality of the circumstances, there was a fair probability that each occupant of the vehicle, including Jackson, had committed a crime and therefore probable cause to arrest existed, even if the evidence was insufficient to sustain convictions on the charge. Maxwell, 624 A.2d at 930. See Fernandez v. Perez, 7th Cir., 937 F.2d 368, 370 (1991); United States v. Cummins, 9th Cir., 920 F.2d 498, 502 (1990), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448, 449 (1991). United States v. Heiden, 5th Cir., 508 F.2d 898, 901–02 (1974); Elk v. Townson, S.D.N.Y., 839 F.Supp. 1047, 1051–52 (1993); State v. Roberts, R.I.Supr., 434 A.2d 257, 263 (1981).

We find unpersuasive Jackson's reliance upon United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). In Di Re, the United States Supreme Court, applying a New York statute somewhat similar to 11 Del.C. § 1904, found no probable cause existed to arrest the defendant, on whose person counterfeit gasoline ration coupons were subsequently found. There, police had been told by an informant, Reed, that he was going to buy counterfeit gasoline coupons from one Buttitta at a certain place. The police located Buttitta's car at the designated place and found Reed in the back seat holding gasoline ration coupons which later proved to be counterfeit. Upon being asked, Reed said he obtained them from Buttitta, who was in the driver's seat. Di Re was in the front passenger seat and was not implicated by Reed. There was no indication that any contraband was located in the automobile itself, apart from that on the person of one of its occupants. Di Re was nonetheless arrested, and on his person police found counterfeit gas ration coupons. He was subsequently convicted on federal charges stemming from their possession.

In finding no probable cause existed to arrest Di Re, the Supreme Court focused, in part, on the fact that Reed incriminated only Buttitta as a guilty party and not Di Re. “Any inference that everyone on the scene of a crime is a party to it must disappear if the Government informant singles out the guilty party.” 332 U.S. at 594, 68 S.Ct. at 228. Here, the police had no way of knowing whether Jackson, Lachette, or Burton, or any combination of the three were responsible for the contraband. Thus, Di Re is clearly distinguishable on its facts. Finding contraband in an automobile occupied by several people is different from finding contraband on the person of one of several occupants of an automobile. We therefore find Jackson's reliance on Di Re unavailing and reject his claim of error.

C.

Jackson's third claim is that the trial court erred in failing to suppress the fruits of an allegedly improper nighttime search of his residence. Following the arrest of Jackson, Burton, and Lachette, the police sought a warrant authorizing a nighttime search of Burton's (and Jackson's) residence. The warrant was issued at 12:15 a.m., and executed at 4:35 a.m. In the apartment, the police found property stolen from the Girardi residence.

Jackson claims the warrant and supporting affidavit failed to satisfy the requirements for obtaining a nighttime search warrant pursuant to 11 Del.C. § 2308, which provides: A search warrant shall not authorize the person executing it to search any dwelling house in the nighttime unless the judge, justice of the peace or magistrate is satisfied that it is necessary in order to prevent the escape or removal of the person or thing to be searched for, and then the authority shall be expressly given in the warrant. For purposes of this section, the term “nighttime” shall mean the period of time between 10:00 p.m. and 6:00 a.m.

We have held that this statute “is clear and unambiguous and requires more than probable cause. It requires a determination that such action is necessary ‘to prevent the escape or removal of the person or thing to be searched for.’ ” Mason v. State, Del.Supr., 534 A.2d 242, 251 (1987) (footnote omitted). The affidavit attached to the warrant challenged here stated, in relevant part:

A nighttime search warrant is necessary since James Burton is currently in the custody of the New Castle County Police for the execution of a search warrant on his person. Once that search is concluded sometime this night, Burton will be released and any evidence that might be at his residence would be in danger of being moved or destroyed. The magistrate issued a search warrant, explicitly authorizing a nighttime search “in order to prevent the escape or removal of the person or thing to be search [sic] for.”

Relying on Mason, Jackson challenges the determination that a nighttime search was warranted. However, we view this matter as controlled by our decisions in Dixon v. State, Del.Supr., 567 A.2d 854 (1989) and Jensen v. State, Del.Supr., 482 A.2d 105 (1984), not Mason. As we observed in Dixon:

In Mason, the defendant (Mason) had supplied another man (Barnett) with a quantity of cocaine. Barnett sold this cocaine to police officers, who immediately placed Barnett under arrest. Mason was not in the vicinity of the arrest, there was no objective evidence tending to support the assertion of the police that Mason would learn of the arrest before morning and the police had no support for their contention that evidence would be destroyed if a nighttime search was not conducted. In fact, the only evidence known to exist in Mason's apartment was marked money to purchase an amount of cocaine earlier that evening. The Court found that Mason, even if he knew of police surveillance, was unlikely to have a desire to destroy money. Mason, 534 A.2d at 252. Dixon, 567 A.2d at 856. Here, however, the facts are parallel to those in Dixon and Jensen, where the suspects were in custody and therefore knew of police involvement and would likely seek to destroy or remove any evidence upon their release. Given the fact that Burton was in temporary police custody and expected to be released during the night, “the police had a reasonable basis to believe that if the search warrant [was] not executed that evening the evidence would be destroyed.” Dixon, 567 A.2d at 856.

Jackson contends that since Burton was not in fact released until after 6:00 a.m., there was no need to conduct an immediate nighttime search. At midnight, however, when they applied for the search warrant, the police could not be certain when Burton would be released from custody. Similarly, the police in Dixon and Jensen could not be certain whether the suspects would be able to post bail or would remain incarcerated through the night. Furthermore, here the police also had in custody on minor charges both Lachette and Jackson, neither of whom was a suspect in the Girardi burglary/homicide when police applied for the warrant, but who, when released, might try to assist their friend by removing or destroying evidence. In applying for the warrant, the police were not required to peer into the future and accurately forecast the night's developments. They were entitled to rely upon reasonable expectations. Similarly, the facts known to the magistrate when he signed the warrant, not those which developed at some later time, are the relevant facts in assessing the need for a nighttime search. See Jensen, 482 A.2d at 111. “We find that the police alleged with particularity facts sufficient for a neutral judicial officer to find probable cause to believe that a nighttime search was necessary to prevent the removal of the object of the search, as required by 11 Del.C. § 2308.” Dixon, 567 A.2d at 856.FN5

FN5. To the limited extent that Jackson contends that the search warrant was constitutionally infirm because it was not supported by probable cause, his argument is completely devoid of merit. To the contrary, the six page affidavit attached to the application for the warrant contained extensive and detailed facts overwhelmingly supporting the magistrate's finding of probable cause. Moreover, Jackson's failure to address this issue in the text of his opening brief (as distinct from the headings and table of contents) constitutes a waiver of the claim on appeal. Murphy v. State, Del.Supr., 632 A.2d 1150, 1152 (1993).

D.

Jackson next argues that the trial judge abused his discretion when he permitted the State to elicit testimony from Lachette, over objection, about Jackson's desire to microwave Mrs. Girardi's cat during the burglary. This testimony was elicited in connection with Lachette's description of the events surrounding the burglary and leading up to Mrs. Girardi's murder. Jackson claims this evidence was irrelevant and highly prejudicial, and therefore inadmissible under D.R.E. 401 and D.R.E. 403. The trial judge ruled that the testimony went to Jackson's state of mind immediately prior to the murder and overruled the objection.

Jackson's state of mind was relevant to the intent element of Murder First Degree. 11 Del.C. § 636(a)(1). In order to show that Jackson intentionally killed Mrs. Girardi, the State had to prove that it had been his conscious object to cause her death. See 11 Del.C. § 231(a)(1). To make that showing, the State could adduce evidence of Jackson's state of mind. Duonnolo v. State, Del.Supr., 397 A.2d 126, 128–30 (1978). In Duonnolo, an appeal from a murder conviction, the defendant's statement that he “ought to go back and shoot the black man they had seen hitchhiking” and his remarks to another person, asking “her something like ‘How would it feel to die?,’ ” were held to be “relevant to defendant's state of mind minutes before the homicide.” Id. at 129. While Jackson's statement about microwaving the cat did not relate to killing a human, as did the statements in Duonnolo, we cannot conclude that the trial judge abused his discretion by finding it to be relevant evidence of a mental state that could lead him to kill Mrs. Girardi, instead of choosing to flee, as Lachette did, upon her return home.

Additionally, we do not find that the relevance of the evidence was “substantially outweighed by the danger of unfair prejudice” so as to warrant its exclusion under D.R.E. 403. While the act of microwaving a cat may have depicted Jackson as a cruel, sadistic person, see State v. Tweedie, R.I.Supr., 444 A.2d 855 (1982), the jury had already heard from Roca and Burton that Jackson had told each of them that he had killed a cat. Roca explained that it was the source of blood on a pair of gloves he was discarding. Burton related how Jackson told him, Roca, and Lachette about ripping a cat in half with his hands. Given this earlier testimony, to which Jackson did not object, and the fact that the questioning on this point was very brief, there was no danger of unfair prejudice with respect to Lachette's testimony. Jackson's claim to the contrary clearly fails. See United States v. Sickles, D.Del., 524 F.Supp. 506, 511 (1981), aff'd, 3d Cir., 688 F.2d 827 (1982).

E.

Jackson's final claim with respect to the guilt/innocence phase of his trial is that the trial judge abused his discretion in permitting Detective Scott McClaren (“McClaren”), the chief investigating officer, to present hearsay testimony, pursuant to 11 Del.C. § 3507, about his conversation with Burton on April 30, 1992. When Burton was taken into custody on April 9, he did not disclose to the police Jackson's inculpatory statements concerning Mrs. Girardi. The police suspected Burton knew more than he was saying, and, on April 30, re-interviewed him in the offices of the Department of Justice regarding his knowledge of the crime. Present were McClaren and two deputy attorneys general. The interview was tape-recorded. As the interview progressed, McClaren continued to suspect that Burton was not disclosing all he knew and asked to speak with Burton alone with the tape recorder turned off. It was then that Burton told McClaren of Jackson's confession to him. Burton then repeated on tape what he had told McClaren, and his trial testimony was consistent with these statements.

After Burton testified at trial, McClaren testified, over objection, regarding Burton's off-tape statement, pursuant to 11 Del.C. § 3507, which permits the use of prior statements as affirmative evidence. FN6 A declarant's out-of-court statement may be admitted pursuant to section 3507 only if the declarant testifies at trial both as to the events perceived or heard and the truthfulness of the out-of-court statements. Further, in order to preserve the defendant's right to confront the witnesses against him,FN7 the declarant must also be subject to cross-examination on both the content of the statement and its truthfulness. Ray v. State, Del.Supr., 587 A.2d 439, 443 (1991); Keys v. State, Del.Supr., 337 A.2d 18, 20 n. 1 (1975).

FN6. 11 Del.C. § 3507. Use of prior statements as affirmative evidence. (a) In a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value. (b) The rule in subsection (a) of this section shall apply regardless of whether the witness' in-court testimony is consistent with the prior statement or not. The rule shall likewise apply with or without a showing of surprise by the introducing party. (c) This section shall not be construed to affect the rules concerning the admission of statements of defendants or of those who are codefendants in the same trial. This section shall also not apply to the statements of those whom to cross-examine would be to subject to possible self-incrimination. FN7. See U.S. Const.Amend. VI (“In all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him....”); Del. Const. Art. I, § 7 (“In all criminal prosecutions, the accused hath the right ... to meet the witnesses ... face to face....”).

Here, Burton, the declarant, testified at trial that his initial statements to the police had not been truthful, but that on April 30, in the presence of McClaren, he decided to tell what he knew. He repeatedly insisted, on both direct and cross-examination, that he told McClaren the truth, thereby satisfying the truthfulness prong of the section 3507 analysis. Burton testified that at that meeting he told McClaren and the prosecutors that Jackson had told him “you can get away with murder.” He did not, however, testify as to what he and McClaren discussed when they met in private with the tape recorder turned off, other than stating that that is when he “came clean” and decided to tell the truth.

While there may have thus been a technical non-compliance with the requirements for the admission of prior statements pursuant to section 3507, it was clearly one of form rather than substance. Burton's testimony at trial was consistent with his prior statements to McClaren, statements he repeatedly insisted were true under vigorous cross-examination. Jackson had prior knowledge of these statements and what McClaren's testimony would be by virtue of the fact that he was given a copy of McClaren's police report describing what Burton had said during the off-tape conversation. Indeed, Jackson cannot demonstrate any prejudice whatsoever from the admission of McClaren's testimony since Burton's trial testimony was consistent with McClaren's recounting of the off-tape conversation. Given these facts, we find that any technical non-compliance with the foundational requirements of section 3507 was harmless beyond a reasonable doubt. See D.R.E. 103(a); Spencer v. State, Del.Supr., 307 A.2d 794, 796 (1973).

Having found no reversible error in any of the claims asserted by Jackson respecting the guilt/innocence phase of his trial, his convictions, including those for Murder First Degree, are affirmed. We next turn to the claims of error respecting the sentencing phase of the trial.

* * * * * *

Jackson mounts five challenges to the propriety of his death sentences: (1) the trial court improperly admitted into evidence incriminating statements taken in violation of his Sixth Amendment right to counsel; (2) the prosecutor's questioning of several defense witnesses regarding Jackson's lack of remorse violated his Fifth Amendment privilege against self-incrimination; (3) the trial court erred in instructing the jury and itself applied an erroneous standard with respect to the standard of proof of non-statutory aggravating circumstances; (4) the imposition of the death penalty for felony murder is unconstitutional because Delaware's death penalty statute does not sufficiently narrow the group of death-eligible defendants; (5) his death sentences are not proportionate to the sentence imposed in similar cases. Because we find reversible error with respect to Jackson's Sixth Amendment claim, we need not resolve all aspects of the Fifth Amendment claim, although we express our view on this issue in an effort to provide guidance to the trial court at Jackson's new sentencing hearing. Jackson's other claims of error are without merit. Given the fact that we are vacating Jackson's death sentences on Sixth Amendment grounds, we find it unnecessary to perform our statutorily mandated review. See 11 Del.C. § 4209(g).

III

A.

The State presented evidence at the penalty hearing following the guilty verdict that Jackson, while in prison awaiting trial, attempted to arrange for the murder of Burton, one of the State's key witnesses. Earlier, during the guilt/innocence phase of the trial, the State also presented evidence that Jackson had solicited Andre Johnson (“Johnson”), a fellow inmate at the Multi–Purpose Criminal Justice Facility (Gander Hill Prison), to kill Burton upon Johnson's release from prison. After Johnson's release, Jackson sent him a letter discussing, in code, Burton's death, along with a photograph of Burton and a map to his residence. Johnson decided not to participate and delivered these materials to the Attorney General's office. FN8. It appears from the record that a taped conversation between Johnson and Jackson, presumably discussing Jackson's desire to have Burton killed, was in the possession of the State at trial. However, Jackson objected to its admission on several grounds, including alleged violations of the Sixth Amendment and Superior Court Criminal Rule 16, regarding discovery in criminal cases. The State conceded a discovery violation with respect to the tape recording and did not offer it into evidence.

The penalty phase evidence involved Jackson's efforts to elicit the assistance of Victor Talmo (“Talmo”) in an effort to kill Burton. Talmo was Jackson's cell mate at Gander Hill. Talmo testified that as early as September 8, 1992, when he began taking notes, Jackson offered to assist Talmo obtain money to post bail. Two days later, Jackson told Talmo that he wanted Burton killed, and was attempting to arrange for bail in order to facilitate the murder plot. On September 21, Detective McClaren interviewed Talmo, presumably at Gander Hill. While the record is unclear, it appears that Talmo told McClaren that he was keeping a diary and had been given a photo of Burton and a map to his residence, but eventually Jackson took back the photo and map. Apparently, McClaren did not ask Talmo to elicit information regarding the Girardi murder, but did ask Talmo to obtain information about the plot to kill Burton.

On September 24, Johnson contacted the State and indicated that Jackson sought to enlist him in a plot to kill Burton. The next day, the State abandoned its plan to obtain a wire tap on the telephone of Jackson's mother, and instead decided to accept Johnson's offer of assistance. Talmo was apparently placed “on a back burner” at that time, in part because the amount of his bail had been increased and he was still in custody. In late February 1993, Jackson sent Talmo a letter with a map to Burton's residence and, in code, asked Talmo to have Burton killed. Talmo again made contact with the State and was ultimately provided with recording equipment by Detective McClaren and asked to record his telephone conversations with Jackson. Talmo taped two phone calls from Jackson in March 1993, during the early phase of Jackson's trial, and turned the tapes over to the State.

Over objection, the tapes were played at the sentencing hearing and admitted into evidence, as were transcripts of the conversations. The dialogue of the tapes is somewhat cryptic, because of Jackson's distrust of the prison phone system, but the contents of the conversations were explained by Talmo on the witness stand and clearly support the claimed plot to murder Burton. On the tapes, Talmo deliberately elicits statements from Jackson regarding the plan to murder Burton.FN9 The statements incriminate Jackson in a very serious matter—the murder of a key State witness—and demonstrate his hope that the murder will allow him to receive an offer of a plea bargain from the State.

FN9. Excerpts of the tapes are as follows: Talmo: And from everything you told me, you know, if you want, if you want this taken care of, man, tonight can be taken care of.... Well, you know, I, see, see the thing about it is man, it's gotta be done tonight.... Jackson: Yeah.... Talmo: Now, is, I mean, what exactly, you know what I'm saying? No show or what? Jackson: Yeah. Vacation. Talmo: Permanent? Jackson: No show. * * * * * * Talmo: Listen to this man. 3 1/2 hours last night. Can you hear me? Jackson: Yeah. Talmo: We waited 3 1/2 hours. Nobody's there man. Nobody. Where are they at? Jackson: I don't know. You got the place right? Talmo: Yeah, I know, definitely, yeah. We waited and waited and waited man for almost, almost 3 hours and 45 minutes and I don't know man, I don't understand it. It looked like the whole place was deserted. * * * * * * Talmo: Well, then again, things might change, you know. Jackson: Huh? Talmo: Things might change here real soon, so.... Jackson: Yeah, I know. Talmo: So, we'll see man. Jackson: If that happens I think they'll stop and offer me a plea. * * * * * *

This attempt to arrange, from prison, the murder of one of the State's key witnesses was used as evidence to show Jackson's violent propensities and future dangerousness and was considered by the trial judge to be a non-statutory aggravating circumstance. Jackson objected at trial and claimed, as he does on appeal, that Talmo was a state agent who deliberately elicited incriminating statements from him in violation of his Sixth Amendment right to counsel. Jackson claims that all of Talmo's testimony was inadmissible on Sixth Amendment grounds.

B.

The Sixth Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment, guarantees the accused in all criminal prosecutions “the right ... to have the Assistance of Counsel for his defence.” It is “indispensable to the fair administration of our adversarial system of criminal justice ... [and] safeguards the other rights deemed essential for the fair prosecution of a criminal proceeding.” Maine v. Moulton, 474 U.S. 159, 168–69, 106 S.Ct. 477, 483, 88 L.Ed.2d 481 (1985). As the United States Supreme Court observed long ago, in its landmark decision involving the notorious Scottsboro trial: The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every stage of the proceedings against him. Powell v. Alabama, 287 U.S. 45, 68–69, 53 S.Ct. 55, 63–64, 77 L.Ed. 158 (1932) (emphasis added). See also Moulton, 474 U.S. at 169, 106 S.Ct. at 483; Gideon v. Wainwright, 372 U.S. 335, 344–45, 83 S.Ct. 792, 797, 9 L.Ed.2d 799 (1963). It is for these reasons that every person charged with a serious criminal offense is entitled to the assistance of counsel, even if it be at the expense of the government, as is the case with an indigent defendant. Id. See Shipley v. State, Del.Supr., 570 A.2d 1159, 1166 (1990). As the language from Powell emphasized above indicates, the right to counsel is not limited to trial; it is to be recognized “at every stage of the proceedings.” It applies at “ ‘critical’ stages of the criminal justice process, ‘where the results might well settle the accused's fate and reduce the trial itself to a mere formality.’ ” Moulton, 474 U.S. at 170, 106 S.Ct. at 484 ( quoting United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149 (1967)). “Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at the least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him....” Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977) ( quoted in Moulton, 474 U.S. at 170, 106 S.Ct. at 484).FN10 See Lovett v. State, Del.Supr., 516 A.2d 455, 462 (1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1898, 95 L.Ed.2d 504 (1987); Deputy v. State, Del.Supr., 500 A.2d 581, 589–90 (1985), cert. denied, 480 U.S. 940, 107 S.Ct. 1589, 94 L.Ed.2d 778 (1987).

FN10. The reasoning was well explained by the Supreme Court in Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972): The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of an organized society, and immersed in the intricacies of substantive and procedural criminal law.

Once it has attached, the Sixth Amendment right to counsel prohibits the government (acting through an agent) from deliberately eliciting incriminating statements from a defendant in the absence of his counsel. Moulton, 474 U.S. at 176, 106 S.Ct. at 487; United States v. Henry, 447 U.S. 264, 270, 100 S.Ct. 2183, 2186, 65 L.Ed.2d 115 (1980); Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964). It does not, however, prohibit an informant, either through prior arrangement or voluntarily, from reporting incriminating statements to the police. “Rather, the defendant must demonstrate that the police and their informant took some action, beyond mere listening, that was designed deliberately to elicit incriminating remarks.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986). See Moulton, 474 U.S. at 176, 106 S.Ct. at 487. Statements taken in violation of the right to counsel are inadmissible at trial, e.g. id. at 180, 106 S.Ct. at 489, and at capital sentencing hearings, see Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). Thus, the questions posed here are as follows: (1) Did Jackson's right to counsel attach? (2) If so, was Talmo a state agent? (3) If a state agent, did Talmo deliberately elicit incriminating statements from Jackson? See United States v. Johnson, 10th Cir., 4 F.3d 904, 910 (1993), cert. denied, 510 U.S. 1123, 114 S.Ct. 1082, 127 L.Ed.2d 398 (1994); Thomas v. Cox, 4th Cir., 708 F.2d 132, 136, cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

C.

The State strenuously argues that there was no Sixth Amendment violation since Jackson's right to counsel had not attached with respect to the plot to kill Burton. Observing that the Supreme Court has held that the Sixth Amendment right to counsel is “offense-specific,” McNeil v. Wisconsin, 501 U.S. 171, 174, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991), the State argues that Jackson's right to counsel was linked to the crimes connected to the Girardi murder, but not the Burton murder plot. Therefore, the State contends, the taped statements, involving the Burton murder plot, were not obtained in violation of Jackson's right to counsel because the right had not attached as to that offense.

In McNeil, the petitioner was imprisoned for a crime that had been committed in West Allis, Wisconsin. After being advised of his Miranda rights, McNeil refused to answer questions. While still imprisoned, he later waived his Miranda rights and was questioned about his knowledge of other, unrelated crimes that had occurred in the town of Caledonia. He eventually made statements incriminating himself in the Caledonia crimes and was then formally charged with those crimes and subsequently convicted. He argued that his statements regarding the Caledonia crimes should have been suppressed because he had already invoked his Fifth Amendment right to counsel with respect to the West Allis crime by appearing in court with an attorney. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The Sixth Amendment right to counsel was not implicated in McNeil. Nonetheless, in dicta, the Supreme Court observed that the Sixth Amendment right is “offense-specific.” That is, “[i]t cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced....” 501 U.S. at 174, 111 S.Ct. at 2207. The State's argument here is premised on the “offense-specific” comment in McNeil. The flaw in the State's argument is that the incriminating statements obtained from Jackson were, in fact, used against him during the sentencing phase of the Girardi murder trial, for which crimes Jackson's right to counsel had plainly attached. Moulton would permit such statements to be used at a trial for charges stemming from the Burton murder plot, but we do not read it as permitting the use of the statements at the sentencing hearing for the Girardi murder. 474 U.S. at 180 n. 16, 106 S.Ct. at 489 n. 16 (“Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.”) ( quoted in McNeil, 501 U.S. at 176, 111 S.Ct. at 2208) (emphasis added).

The evidentiary value of the Talmo taped statements was two-fold: (1) they had independent significance as evidence of a new crime (the plot to murder Burton); (2) they were evidence of Jackson's future dangerousness, a relevant consideration of the sentencer in the pending matter. While there is no Sixth Amendment impediment to using the statements in a prosecution for the former, the Sixth Amendment prohibits the admission of “incriminating statements pertaining to pending charges ... [notwithstanding] the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused's right to counsel.” Moulton, 474 U.S. at 180, 106 S.Ct. at 489.

We recognize the obvious need for the police to investigate Jackson's attempts to have Burton killed.FN11 The police have a legitimate interest in investigating new or additional crimes, which may require surveillance of individuals already under indictment. Moulton, 474 U.S. at 179, 106 S.Ct. at 489. We simply hold that incriminating statements deliberately elicited by a state agent under these circumstances could not constitutionally be used against Jackson during the sentencing hearing for the Girardi murder. Moulton, 474 U.S. at 179–81, 106 S.Ct. at 489–90; Massiah, 377 U.S. at 207, 84 S.Ct. at 1203. FN11. We express reservations about the propriety of tape recording conversations involving a defendant and an undercover state agent while trial is in progress. There is a risk that sensitive matters, including trial strategy, may be discussed in such conversations. Nonetheless, we recognize the extraordinary circumstances facing the police in this situation.

Our conclusion that Jackson's Sixth Amendment right to counsel with respect to the Girardi murder prohibited the introduction into evidence of incriminating statements deliberately elicited by a state agent is in accord with the decision of the Supreme Court of Illinois in People v. Kidd, Ill.Supr., 129 Ill.2d 432, 136 Ill.Dec. 18, 544 N.E.2d 704 (1989). There, the defendant had been arraigned for his role in the murder of four people and a related arson that occurred in 1984. He was later interrogated by police, in the absence of his counsel, about his role in a 1980 fire in which 10 children died, and admitted setting the 1980 fire. He pleaded guilty to nine counts of murder and various other charges arising out of the 1984 arson murders. During his sentencing hearing, the prosecution presented testimony regarding the defendant's role in the 1980 fire. The defendant was ultimately sentenced to death.

On appeal, the Supreme Court of Illinois vacated the defendant's guilty pleas and resulting death sentences on the ground that the pleas were not made knowingly and intelligently. However, the court went on to address the defendant's claim that the testimony involving the 1980 fire elicited at the sentencing hearing for the 1984 arson murders violated his Sixth Amendment right to counsel. After an extensive discussion of Moulton, the Supreme Court of Illinois rejected the same argument made by the State here and held as follows:

Because we believe that a pretrial interrogation by the State used to garner evidence later used at a death penalty hearing is a critical stage in the proceedings ( see Estelle v. Smith [451 U.S. at 469–71, 101 S.Ct. at 1876–77] ), and a State agent, in the case at bar, deliberately elicited incriminating statements, used to support the State's case that defendant was deserving of the death penalty, deliberately in the absence of defendant's counsel, we find the defendant's sixth amendment right to counsel was violated. [ Moulton, 474 U.S. at 180, 106 S.Ct. at 489]. 544 N.E.2d at 712. We find People v. Kidd to be directly on point and agree with the analysis and conclusion of the Supreme Court of Illinois.

Given the opportunity to do so in supplemental briefing following oral argument, the State does not attempt to distinguish People v. Kidd, but instead claims its analysis of Moulton is somehow undermined by the United States Supreme Court's subsequent statement in McNeil that the Sixth Amendment right to counsel is “offense-specific.” In support of this contention, the State relies heavily on United States v. Kidd, 4th Cir., 12 F.3d 30 (1993), cert. denied, 511 U.S. 1059, 114 S.Ct. 1629, 128 L.Ed.2d 352 (1994). There, the defendant had been indicted and counsel appointed for charges stemming from the possession and distribution of cocaine base. While on release pending trial, he engaged in another drug transaction with an undercover police informant. That later transaction led the government to obtain a superseding indictment including the later transaction as a separate count and extending the conspiracy period. Pursuant to a plea agreement, the defendant pleaded guilty to one of the earlier charges and the government moved to dismiss the remaining counts, including that related to the later drug transaction.

At sentencing, the defendant objected to references in the presentence report relating to the later drug transaction on Sixth Amendment grounds, specifically to the calculation of the weight of cocaine sold, which was relevant for the determination of his sentence under the United States Federal Sentencing Guidelines. The district court overruled the objection and, on appeal, the Fourth Circuit affirmed, finding no Sixth Amendment violation. Relying on the “offense-specific” characterization of McNeil, the Fourth Circuit held that the defendant's right to counsel had not attached as to the later offense and upheld the use of that crime for sentencing purposes. FN12. The Fourth Circuit also relied upon Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990), as did the State at trial and on appeal here. There, the Supreme Court held that an undercover informant posing as a fellow inmate need not give the Miranda warnings to an inmate before interrogating him about activities unrelated to his present incarceration. Perkins clearly rests on Fifth Amendment grounds. The Court observed, in its only mention of the Sixth Amendment, that “no charges had been filed on the subject of the interrogation, and our Sixth Amendment precedents [ Massiah, Henry, and Moulton ] are not applicable.” 496 U.S. at 299, 110 S.Ct. at 2398. We cannot read that brief passage from a Fifth Amendment case as permitting the use of the taped statements during the proceedings in the same case for which the right to counsel had attached in light of the Sixth Amendment challenge presented here.

We find United States v. Kidd unpersuasive. Although the court determined there was no Sixth Amendment violation with respect to obtaining evidence regarding further crimes, the court did not address how the evidence of the later offense could constitutionally be used to enhance the sentence for the initial offense. In any event, we find a ruling rendered in the context of the Sentencing Guidelines for a drug offense to be of limited assistance in death penalty jurisprudence.

Death is different. Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion). “[D]eath as a punishment is unique in its severity and irrevocability.” Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976) (plurality opinion); Pennell v. State, Del.Supr., 604 A.2d 1368, 1375 (1992). Therefore, “the Eighth Amendment requires increased reliability of the process by which capital punishment may be imposed.” Herrera v. Collins, 506 U.S. 390, ––––, 113 S.Ct. 853, 863, 122 L.Ed.2d 203 (1993). Given these considerations, we decline to follow United States v. Kidd, finding People v. Kidd to represent a proper application of Sixth Amendment principles in an Eighth Amendment context.FN13

FN13. Similarly, we find the State's reliance on the Supreme Court's recent decision in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) unavailing. There, the Supreme Court, overruling Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), held that there was no Sixth Amendment bar to using the defendant's prior uncounseled misdemeanor conviction in determining the appropriate sentence for a subsequent offense. Nichols cannot fairly be read as permitting evidence obtained under these circumstances to be used in a capital sentencing hearing.

D.

The next issue we must resolve is whether Talmo was a state agent in his contacts with Jackson, and if so, whether he deliberately elicited incriminating statements from Jackson. In doing so, we divide Talmo's actions into three time periods: (1) prior to his initial contact with McClaren; (2) the recording of Jackson's telephone conversations; and (3) the times in between. Jackson claims Talmo was a state agent at all relevant times. The State argues he was never its agent. The parties also disagree as to whether Talmo deliberately elicited incriminating statements from Jackson.

“State agent” for Sixth Amendment purposes defies easy definition. The Supreme Court's major Sixth Amendment right to counsel opinions, Massiah, Brewer, Henry, Moulton, and Kuhlmann, do not define the term, focusing instead on the method of gathering information. See Massiah, 377 U.S. at 206, 84 S.Ct. at 1203 (“deliberately elicited”); Brewer, 430 U.S. at 399, 97 S.Ct. at 1240 (“set out to elicit”); Henry, 447 U.S. at 270, 100 S.Ct. at 2186 (“deliberately elicited”); Moulton, 474 U.S. at 176, 106 S.Ct. at 487 (“knowingly circumventing” right to counsel); Kuhlmann, 477 U.S. at 459, 106 S.Ct. at 2630 (“designed deliberately to elicit”). The information gatherer was simply assumed to be a state agent. See Brewer, 430 U.S. at 387, 97 S.Ct. at 1232 (police officers); Henry, 447 U.S. at 270, 100 S.Ct. at 2186 (informant paid on a “contingent-fee basis”); Moulton, 474 U.S. at 163, 106 S.Ct. at 480 (informant offered a deal for cooperation); Kuhlmann, 477 U.S. at 475, 106 S.Ct. at 2638 (Brennan, J., dissenting) (informant usually received consideration for services rendered to police). See also Thomas v. Cox, 4th Cir., 708 F.2d 132, 135 n. 2, cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983) (discussing fact that state agent aspect has never been a focal point of Supreme Court decisions on the issue).

The facts of Massiah, however, are closely analogous to those presented here with respect to the taped conversations. In Massiah, the informant, Colson, was a codefendant who agreed to cooperate with the government. Neither the Supreme Court's opinion nor that of the Court of Appeals, 2d Cir., 307 F.2d 62 (1962), indicates any reason for Colson's desire to cooperate and neither indicates he was promised anything in return. He then permitted a federal agent to install a radio transmitter in his automobile by which the agent could overhear conversations in the car. Here, Talmo was a trusted friend of Jackson who agreed to cooperate with the police. The reason for his desire to cooperate is unclear, though both Talmo and McClaren emphatically denied that he was promised anything in return. McClaren then provided Talmo with the recording equipment, presumably instructing him in its use, and asked him to tape his conversations with Jackson. Talmo did so and turned the tapes over to McClaren.

Given these facts, and their similarity to those in Massiah, we conclude Talmo was acting as a state agent when he recorded his telephone conversations with Jackson.FN14 Cf. United States v. Taylor, 10th Cir., 800 F.2d 1012, 1016 (1986), cert. denied, 484 U.S. 838, 108 S.Ct. 123, 98 L.Ed.2d 81 (1987) (no agency when no agreement with, and in the absence of instructions or directions by, government). We likewise conclude, as detailed above, supra, p. 1370, that Talmo deliberately elicited incriminating statements from Jackson about the plot to kill Burton. This is not a case where the police obtained the taped statements through “luck or happenstance” or simply by listening. See Kuhlmann, 477 U.S. at 459, 106 S.Ct. at 2630; Moulton, 474 U.S. at 176, 106 S.Ct. at 487. To the contrary, here the statements were obtained in very surreptitious fashion; Talmo, a trusted friend of Jackson, was cooperating with the police and agreed to secretly record their telephone conversations.

FN14. The facts of Moulton are similar, except in the agency aspect, in that the police provided the informant, also named Colson, with a recording device to record telephone calls from the defendant, which he did. 474 U.S. at 163, 106 S.Ct. at 480. The police and Colson had already agreed on a deal to secure Colson's cooperation. Id.

This technique is precisely what the Supreme Court has characterized as “the primary concern of the Massiah line of decisions”—“secret interrogation by investigatory techniques that are the equivalent of direct police interrogation.” Kuhlmann, 477 U.S. at 459, 106 S.Ct. at 2630. See also Moulton, 474 U.S. at 175–76, 106 S.Ct. at 486–87; Massiah, 377 U.S. at 206, 84 S.Ct. at 1203. Indeed, conversations with secret informants pose a greater imposition upon a defendant than overt police interrogation because the defendant does not know he is being interrogated by a government agent. Id. The fact that Jackson initiated the telephone calls to Talmo is of no consequence. Moulton, 474 U.S. at 174–75, 106 S.Ct. at 486. What is determinative is Talmo's deliberate eliciting of incriminating statements from Jackson, “knowingly circumventing [Jackson's] right to have counsel present in a confrontation between [him] and a state agent.” Id. at 176, 106 S.Ct. at 487.

While the record establishes that Talmo was a state agent at the time of the taped telephone conversations, it does not support Jackson's claim that Talmo was a state agent when he began taking notes of his conversations with Jackson while still imprisoned. When Talmo began taking notes in prison, he was acting on his own and the police were completely unaware of his actions. Regardless of his motive, Talmo cannot be said to have been an agent of the State at that time. United States v. Johnson, 10th Cir., 4 F.3d 904, 912 (1993), cert. denied, 510 U.S. 1123, 114 S.Ct. 1082, 127 L.Ed.2d 398 (1994); Taylor, 800 F.2d at 1016; Thomas, 708 F.2d at 135–36; State v. Pettingill, Me.Supr., 611 A.2d 88, 90 (1992). Since Talmo was not a state agent, Jackson's Sixth Amendment right to counsel was not violated, regardless of whether the incriminating statements were deliberately elicited. Taylor, 800 F.2d at 1015.

The record establishes that Talmo was not a state agent at the time he began taking notes on September 8, 1992, and that he was a state agent at the time of the taped telephone conversations in March 1993. However, it is unclear as to whether Talmo was a state agent at the time he received from Jackson the letter and map to Burton's residence, either in September 1992 or in February 1993. The record, as developed in limited fashion at the sentencing hearing, does not support Jackson's claim that Talmo was a state agent during this time period. If he was a state agent at the relevant time, it is likewise unclear whether he “deliberately elicited” incriminating statements, including the letter and map, from Jackson. These points were not developed during the sentencing hearing, presumably because the trial judge held that all of the evidence secured by Talmo was admissible.

Given our disposition as to the taped recorded statements, Jackson will have the opportunity to develop the record to support his claim that Talmo was a state agent who deliberately elicited the incriminating evidence obtained during the time period between his initial contact with McClaren and the recording of the telephone conversations. To guide the trial court in its handling of this issue, we observe the following. There is no bright-line test for determining whether an individual is a government agent for Sixth Amendment purposes. Taylor, 800 F.2d at 1015; Thomas, 708 F.2d at 136. A police informant is not necessarily a state agent. Johnson, 4 F.3d at 912; Thomas, 708 F.2d at 136–37. Factors to be considered are whether there was an agreement between the informant and the police, the content and scope of any such agreement, whether the police provided direction or instructions to the informant, and whether there was prearranged or ongoing cooperation. See Johnson, 4 F.3d at 911–12; Taylor, 800 F.2d at 1015–16; Thomas, 708 F.2d at 135–37. See generally, Henry, 447 U.S. at 270–73, 100 S.Ct. at 2186–88.

In sum, we hold that there is no Sixth Amendment bar to testimony and evidence regarding Jackson's contacts with Talmo to arrange for Burton's murder which preceded Talmo's initial contact with McClaren on September 21. However, with respect to the taped telephone conversations, we hold that the State, acting through its agent, Talmo, deliberately elicited incriminating statements from Jackson, “knowingly circumventing [Jackson's] right to have counsel present in a confrontation between [him] and a state agent.” Moulton, 474 U.S. at 176, 106 S.Ct. at 487. Jackson's Sixth Amendment right to counsel was violated by the introduction into evidence at his sentencing hearing of the taped telephone conversations, along with references to them in testimony and the remarks of the prosecutor during argument. Additionally, it was constitutionally improper for the trial judge to consider the content of those conversations in his determination that the murder plot constituted a non-statutory aggravating circumstance.

E.

The State asserts that any constitutional error with respect to the admission of the taped statements was harmless beyond a reasonable doubt, and therefore Jackson's death sentences should nonetheless be affirmed. See Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (Sixth Amendment violations are subject to harmless error analysis, even when such violations occur in the sentencing phase of a capital case.). The State observes that evidence of the Burton murder plot was already before the jury and judge by virtue of Johnson's testimony regarding Jackson's efforts to solicit his participation in the crime. Moreover, Jackson's initial efforts to involve Talmo in the plot were properly admitted into evidence. Therefore, the State concludes, the taped conversations were merely cumulative and did not contribute to the decision to impose the death sentences.

The State bears the burden of demonstrating that the error committed here was harmless beyond a reasonable doubt. Dawson v. State, Del.Supr., 608 A.2d 1201, 1204 (1992) ( citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)). The test is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Satterwhite, 486 U.S. 249, 258–59, 108 S.Ct. 1792, 1798, 100 L.Ed.2d 284 ( quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828). See Dawson, 608 A.2d at 1204.

While the taped conversations were no doubt cumulative, they were buttressing as well. Given the fact that the only testimony as to the murder plot came from Johnson and Talmo, both convicted felons, it is uncertain whether the jury or judge would have believed the startling assertion that Jackson was attempting to orchestrate from prison the murder of a key State's witness. Therefore, the taped statements played an important evidentiary role in corroborating the testimony of Johnson and Talmo through Jackson's own words.

Moreover, during closing arguments, the prosecutor emphasized the taped conversations, telling the jury they could review the transcripts and listen to the tapes, and urging them to consider the murder plot as an aggravating factor. The trial judge considered the murder plot to be the first non-statutory aggravating circumstance, and specifically referred to the admission into evidence of the tapes. Finally, in determining that the aggravating circumstances outweighed the mitigating circumstances, the judge observed that Jackson's criminal history “has continued up until the commencement of his trial,” an obvious reference to the fact that the taped conversations regarding the murder plot were obtained during the preliminary phases of the trial.

The United States Supreme Court has observed that “[a] defendant's confession is probably the most probative and damaging evidence that can be admitted against him.... [I]t is impossible to know what credit and weight the jury gave to the confession.” Arizona v. Fulminante, 499 U.S. 279, 292, 111 S.Ct. 1246, 1255, 113 L.Ed.2d 302 (1991) (citations omitted). Recognizing the fact that the tapes feature Jackson, in his own voice, plotting the murder of a key witness and his hope to receive a plea bargain when the murder is accomplished, and given the heavy emphasis placed on the tapes during the sentencing process, we cannot conclude that the State has carried its burden of establishing that the Sixth Amendment violation in this case was harmless beyond a reasonable doubt. Dawson, 608 A.2d at 1204–05; cf. Gattis v. State, Del.Supr., 637 A.2d 808, 817 (1994). Accordingly, Jackson's death sentences are hereby vacated and a new sentencing hearing is required. FN15. In light of our disposition on the Sixth Amendment issue, we need not address Jackson's claim that the State violated the discovery obligations of Superior Court Criminal Rule 16. Since all of the information claimed to have been improperly withheld is now part of the record and in the possession of the defense, it will be available for use at Jackson's new sentencing hearing. Therefore Jackson will not be prejudiced by the alleged discovery violation. See Ray v. State, Del.Supr., 587 A.2d 439, 441 (1991). We nonetheless express our continuing concern with the State's conduct with respect to its discovery obligations. See id. at 442.

* * * * * *

Having found reversible error with respect to Jackson's Sixth Amendment claim, we address Jackson's other claims of error to provide guidance to the trial court for Jackson's new sentencing hearing.

IV

During the sentencing hearing, Jackson's mother and sister were called as defense witnesses. Although the matter was not raised on direct examination, on cross-examination both were asked by the prosecutor if Jackson had ever said he was sorry or shown remorse for killing Mrs. Girardi. FN16 Jackson then called Dr. Stephen Mechanick, a psychiatrist, as a witness. Dr. Mechanick was asked on direct examination if Jackson was incapable of expressing remorse. On cross-examination, he was questioned about Jackson's expression of remorse.

FN16. Jackson's sister testified as follows: Q: Did your brother ever tell you he was sorry for murdering Mrs. Girardi? A: No. Q: Would you agree with me that when you visit him at prison, those about six times over the course of a year, he's never shown any remorse for killing Mrs. Girardi? A: Bobby has never showed emotion. Jackson's mother testified as follows: Q: When you visited your son at prison, did he ever show any remorse to you for killing Mrs. Girardi? A: My son is very upset about everything that is happened [sic]. I don't know what you mean by remorse. He has told me he is very upset for everyone involved in everything and he feels bad that I have to go through this. .... Q: Did he ever say he was sorry for killing Mrs. Girardi to you? A: I didn't bring it up to him. Q: Did— A: It's too painful. Q: Did he ever volunteer to you? A: He wouldn't bring anything up to me that he thought was painful for me because I've been through enough.

In his closing argument, the prosecutor spoke of Jackson's actions after the murder but before his arrest and repeatedly emphasized his lack of remorse. ( E.g., “Is that a remorseful man? Is that somebody who is sorry for killing Mrs. Girardi? No. He has shown absolutely no remorse.”) The trial judge, in his sentencing decision, considered Jackson's lack of expression of sympathy or remorse, coupled with his statements to the effect that he “always wanted to know what it would be like to kill someone” to be a non-statutory aggravating circumstance. In so doing, the trial judge referred to Jackson's failure to testify at trial and the sentencing hearing. FN17. The relevant portion of the sentencing decision is as follows: The State offered testimony concerning statements made by the defendant to his friends that he “always wanted to be a hit man” and “always wanted to know what it would be like to kill someone.” These statements coupled with defendant's lack of expression or any sympathy or remorse is [sic] an aggravating factor. Defendant did not testify at the guilt/innocence trial or at the penalty hearing. Also, defendant did not exercise his right to speak to the jury at the conclusion of the evidence at the penalty hearing. When he chose to speak at the argument hearing concerning punishment, he only expressed sorrow for his family and friends. Lachette further testified at the penalty hearing that defendant treated this homicide as an inside joke prior to arrest. The Court finds, by credible and reliable evidence, that the lack of remorse is an aggravating factor in light of the overwhelming evidence of defendant's guilt.

Jackson claims that the prosecutor's questioning of several defense witnesses regarding his lack of remorse violated his Fifth Amendment privilege against self-incrimination. Jackson did not object when the testimony was elicited, but subsequently (just prior to closing arguments) moved for a mistrial. The trial judge denied the mistrial motion as untimely, but instructed the State not to mention any post-arrest silence or lack of remorse during closing argument. Jackson argues that the denial of the mistrial was error. However, he does not challenge the prosecutor's remarks regarding his lack of remorse in closing arguments, nor does he assert error with respect to the trial judge's comment upon his failure to testify in the court's discussion of Jackson's lack of remorse in its sentencing decision. Given the fact that a new sentencing hearing is required, we address all of these issues for the guidance of the trial court in this and future cases.

A.

The Fifth Amendment, as applicable to the States through the Fourteenth Amendment, provides that “No person ... shall be compelled in any criminal case to be a witness against himself....”

The Fifth Amendment protects the individual's right to remain silent. The central purpose of the privilege against compulsory self-incrimination is to avoid unfair criminal trials. It is an expression of our conviction that the defendant in a criminal case must be presumed innocent, and that the State has the burden of proving guilt without resorting to an inquisition of the accused. Lefkowitz v. Cunningham, 431 U.S. 801, 810, 97 S.Ct. 2132, 2138, 53 L.Ed.2d 1 (1977) (Stevens, J., dissenting) (footnote omitted). So fundamental is the Fifth Amendment privilege that prior to any custodial interrogation the accused must be advised of the right to remain silent if his statements are to be used against him at trial. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Fifth Amendment privilege applies both at trial and during a capital sentencing hearing. Estelle v. Smith, 451 U.S. 454, 462–63, 101 S.Ct. 1866, 1872–73, 68 L.Ed.2d 359 (1981).

A person cannot be penalized for exercising his Fifth Amendment privilege. Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). In Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965), the Supreme Court held that the privilege against self-incrimination granted by the Fifth and Fourteenth Amendments “forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.” See, e.g., Benson v. State, Del.Supr., 636 A.2d 907, 910 (1994); DeShields v. State, Del.Supr., 534 A.2d 630, 641 (1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 217 (1988). Moreover, the Due Process Clauses of the Fifth and Fourteenth Amendments prohibit the prosecution from commenting upon an accused's exercise of his right to remain silent following the receipt of his Miranda warnings. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). See Hughes v. State, Del.Supr., 437 A.2d 559, 573–74 (1981).

B.

Relying on Griffin, Doyle, and their progeny, Jackson argues that questioning about his lack of remorse violated his Fifth Amendment rights since, in order to express remorse, he would have to waive his right to remain silent. Therefore, he argues, he was penalized for exercising his right to remain silent by the questioning regarding his lack of remorse. See Lesko v. Lehman, 3d Cir., 925 F.2d 1527, 1540–45, cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991).

While we have never addressed this specific issue,FN18 courts in other jurisdictions permit a defendant's lack of remorse to be considered in fixing sentence. See, e.g., United States v. Johnson, 7th Cir., 903 F.2d 1084, 1090 (1990); United States v. Bangert, 8th Cir., 645 F.2d 1297, 1308–09, cert. denied, 454 U.S. 860, 102 S.Ct. 314, 70 L.Ed.2d 158 (1981); People v. Albanese, Ill.Supr., 102 Ill.2d 54, 79 Ill.Dec. 608, 622, 464 N.E.2d 206, 219, cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 205 (1984). Presumably, the theoretical basis for considering such evidence is that it may be reflective of a defendant's character and propensities, both proper sentencing considerations. While we recognize the relevance of such considerations in the abstract, see Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Pennell v. State, Del.Supr., 604 A.2d 1368, 1376 (1992), we nonetheless believe that Fifth Amendment concerns are raised by direct questioning and prosecutorial comment about remorse, since the only affirmative way for a defendant to express remorse is to waive his right to remain silent. See Lesko, 925 F.2d at 1544–45; People v. Coleman, Cal.Supr., 71 Cal.2d 1159, 80 Cal.Rptr. 920, 926, 459 P.2d 248, 254 (1969). Indeed, a true expression of remorse requires the ultimate form of self-incrimination—an admission of guilt.

FN18. We considered a related issue in Hughes v. State, Del.Supr., 437 A.2d 559, 572 (1981), where we held the prosecutor's comments about the defendant's demeanor to be improper. That decision, however, was not grounded on the Fifth Amendment.

The questioning of the three witnesses on the element of remorse was brief, did not draw a timely objection, and cannot be fairly read as having undermined the fundamental fairness of the proceeding. See People v. Hovey, Cal.Supr., 44 Cal.3d 543, 244 Cal.Rptr. 121, 144, 749 P.2d 776, 797, cert. denied, 488 U.S. 871, 109 S.Ct. 188, 102 L.Ed.2d 157 (1988); Henderson v. Dugger, 11th Cir., 925 F.2d 1309, 1318 (1991). Moreover, with respect to Dr. Mechanick's testimony, Jackson raised the remorse issue during direct examination and cannot complain about the limited cross-examination he invited. People v. Clark, Cal.Supr., 5 Cal.4th 950, 22 Cal.Rptr.2d 689, 731, 857 P.2d 1099, 1141 (1993), cert. denied, 512 U.S. 1253, 114 S.Ct. 2783, 129 L.Ed.2d 894 (1994). See also Bromwell v. State, Del.Supr., 427 A.2d 884, 892 (1981). Given these circumstances, we are not inclined to view the refusal to grant a mistrial as an abuse of discretion. Any error in this regard was harmless beyond a reasonable doubt. Williams v. Chrans, 7th Cir., 945 F.2d 926, 953–54 (1991), cert. denied, 505 U.S. 1208, 112 S.Ct. 3002, 120 L.Ed.2d 877 (1992); Hovey, 749 P.2d at 797. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Nonetheless, we consider improper any effort to focus upon lack of remorse in a manner which infringes upon the defendant's right not to testify. We express our concern over the line of questioning in this case, the prosecutor's comments during closing argument, and the trial judge's consideration of Jackson's lack of remorse in conjunction with a non-statutory aggravating circumstance.

Other courts have also expressed concern over such matters. The Court of Criminal Appeals of Texas has held that “[t]estimony as to contrition or remorse can only come from the accused, and when offered by witnesses other than the accused himself is inadmissible.” Swallow v. State, Tex.Cr.App., 829 S.W.2d 223, 225 (1992). Similarly, the Supreme Court of South Carolina has repeatedly found prosecutorial remarks concerning remorse to be reversible error. See State v. Cockerham, S.C.Supr., 294 S.C. 380, 365 S.E.2d 22, 23 (1988) (collecting cases) (“look at [appellant], does he look sorry to you?” and “Have you seen any remorse?”). See also Lesko, 925 F.2d at 1544–45 (defendant didn't have the “common decency to say I'm sorry for what I did.”); Owen v. State, Tex.Cr.App., 656 S.W.2d 458, 459 (1983) (defendant testified at trial but not sentencing hearing; prosecutor's remarks about defendant's failure to say he was sorry constituted reversible error); People v. Ramirez, Ill.Supr., 98 Ill.2d 439, 75 Ill.Dec. 241, 247, 457 N.E.2d 31, 37 (1983) (“[defendant] has sat silent before you, before his accusers and before the tryer [sic] of fact and offered no explanation for the murder”).

Even courts which permit consideration of a lack of remorse note that there is a fine line between punishing a defendant for remaining silent and proper consideration of his failure to show remorse. See United States v. Johnson, 7th Cir., 903 F.2d 1084, 1090 (1990). Given Jackson's failure to challenge the prosecutorial remarks and the consideration of the non-statutory aggravating circumstance in the present appeal and our disposition of the Sixth Amendment issue, we are not required to determine whether error exists here. In another setting, questioning or argument regarding a defendant's lack of remorse or failure to express sorrow may constitute reversible error. FN19. The fact that a defendant is remorseful is a mitigating factor to be considered by the jury and judge. See, e.g., Gattis v. State, Del.Supr., 637 A.2d 808, 822 (1994). Indeed, “the Eighth and Fourteenth Amendments require that the sentencer ... 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 of less than death.” Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982) (citation and internal quotation marks omitted) (emphasis in original).

C.

As noted above, in his sentencing decision, the trial judge considered Jackson's lack of remorse, in conjunction with other things, to be a non-statutory aggravating circumstance. In so doing, the trial judge made reference to Jackson's failure to testify. See, supra, note 17. In addition to our concern over the propriety of such a non-statutory aggravating circumstance, and while Jackson again fails to claim error on appeal, we view the reference as raising additional Fifth Amendment concerns. As discussed above, a defendant may not be penalized for his failure to testify. E.g., Minnesota v. Murphy, 465 U.S. 420, 434, 104 S.Ct. 1136, 1146, 79 L.Ed.2d 409 (1984); Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). It follows that the sentencer may not infer a lack of remorse from the defendant's failure to testify. See People v. Coleman, Cal.Supr., 71 Cal.2d 1159, 80 Cal.Rptr. 920, 926, 459 P.2d 248, 254 (1969) (failure to confess cannot be deemed evidence of lack of remorse). Given that we are vacating Jackson's death sentences on other grounds, we need not determine if such an inference was drawn. We do, however, caution against such considerations in sentencing determinations.

V

Jackson claims the trial court erred by failing to prescribe the standard of proof necessary to the finding of non-statutory aggravating circumstances in its jury instructions during the sentencing phase. Moreover, Jackson argues that the trial court itself applied an erroneous standard of “credible and reliable evidence” in its sentencing decision. Jackson's claim is controlled by our recent decision in Dawson v. State, 637 A.2d 57, 62–64 (1994), in which we rejected an identical argument with respect to jury instructions and held that the Delaware death penalty statute does not require proof of a non-statutory aggravating circumstance beyond a reasonable doubt before it may be “found to exist.” Accord, Lawrie v. State, Del.Supr., 643 A.2d 1336, 1341–1342 (1994). We likewise find no error in the trial court's “credible and reliable evidence” formulation of the standard of proof, which is consistent with our ruling in Dawson. FN20. Given our disposition on the Sixth Amendment issue, we need not consider the effect of the United States Supreme Court's recent decision in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) regarding a defendant's due process right, in certain circumstances, to a jury instruction that he is ineligible for parole.

VI

Jackson's final claim of error is that the imposition of a death sentence for felony murder offends the Eighth and Fourteenth Amendments because Delaware's death penalty statute does not sufficiently narrow the group of death-eligible defendants charged with homicide. See Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). Jackson contends that use of the statutory aggravating circumstance that he was engaged in the commission of a robbery and burglary with respect to his conviction for felony murder was improper. 11 Del.C. §§ 636(a)(2), 4209(e)(1)j. Jackson claims that, because the statutory aggravating circumstance of robbery/burglary essentially duplicates an element of the capital offense, felony murder, the requisite narrowing did not occur.

Jackson's argument is foreclosed by our recent decision in Ferguson v. State, Del.Supr., 642 A.2d 772, 780–781 (1994), in which we adhered to our earlier decisions in Whalen v. State, Del.Supr., 492 A.2d 552, 565–69 (1985) and Riley v. State, 496 A.2d 997, 1021 (1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986) and rejected an identical claim. Accord Deputy v. Taylor, 3d Cir., 19 F.3d 1485, 1500–02, cert. denied, 512 U.S. 1230, 114 S.Ct. 2730, 129 L.Ed.2d 853 (1994).

VII

Jackson claims that his death sentences are disproportionate to the sentences imposed in similar cases. Such a claim relates to this Court's mandatory review of all death sentences, which requires that we determine whether the sentence imposed is “disproportionate to the penalty recommended and imposed in similar cases.” 11 Del.C. § 4209(g)(2)(a). Given the fact that we have vacated Jackson's death sentences on Sixth Amendment grounds, we consider it improvident to conduct our mandatory review and therefore decline to consider Jackson's proportionality argument.

VIII

We have considered all of Jackson's claims with respect to the guilt/innocence phase of his trial and find them to be without merit. Accordingly his convictions, including those for Murder First Degree, are AFFIRMED. We conclude that Jackson's Sixth Amendment right to counsel was violated by the introduction into evidence of the taped incriminating statements deliberately elicited by a state agent during the sentencing hearing and that the State has not carried its burden of establishing that such error was harmless beyond a reasonable doubt. Accordingly, Jackson's death sentences are VACATED and the matter is REMANDED for a new penalty hearing to be conducted consistent with this opinion.

The parties shall have until 12 noon on July 20, 1994, to file motions for reargument. FN21. The time for reargument has been abbreviated due to the expiration of the term of Justice Andrew G.T. Moore, II. See Supr.Ct.R. 18. Accord, Pennell, 604 A.2d at 1378 n. 8.

Jackson v. State, 684 A.2d 745 (Del.Supr. 1996). (Direct Appeal-Affirmed)

Defendant was convicted of first-degree murder, possession of deadly weapon during commission of felony, second-degree burglary, second-degree conspiracy, and first-degree robbery, following jury trial in the Superior Court in and for New Castle County. Defendant appealed from convictions. The Supreme Court affirmed convictions, but vacated sentence and remanded for new penalty hearing, 643 A.2d 1360. The trial court, following second penalty hearing before new jury, again sentenced defendant to death. Defendant appealed. The Supreme Court, Walsh, J., held that: (1) death penalty statute requiring that jurors in capital case who indicate inability to impose death penalty under any circumstances are subject to being stricken for cause did not deny defendant jury comprised of fair cross-section of community; (2) trial court's determination that jurors stricken for cause were unable to substantially perform duties required of them was amply supported by record; (3) former cellmate of defendant was not “state agent” for purpose of determining admissibility of incriminating statements made to him by defendant; (4) trial judge's knowledge of inadmissible evidence introduced during first penalty hearing did not require judge's recusal prior to second penalty hearing; and (5) death penalty imposed on defendant satisfied constitutional requirements in that it was neither arbitrary nor capricious and was proportionate to sentences imposed in like first-degree murder cases. Affirmed.

WALSH, Justice:

The appellant Robert W. Jackson, III (“Jackson”), has again brought a death penalty appeal before this Court, following a second penalty hearing in which the death sentence was imposed. On March 30, 1993, Jackson was convicted of First Degree Murder (2 counts), Possession of a Deadly Weapon During the Commission of a Felony (3 counts), Burglary Second Degree, Conspiracy Second Degree, and Robbery First Degree, all related to the April 3, 1992, robbery and murder of Elizabeth Girardi. Pursuant to 11 Del.C. § 4209(b)(1), a separate penalty hearing was conducted, at the conclusion of which the jury, by a vote of 11 to 1, recommended the death penalty. After careful consideration of the factors enumerated in 11 Del.C. § 4209(d), the Superior Court concurred with the jury findings and imposed a sentence of death.

Jackson appealed his convictions to this Court which affirmed the convictions but vacated the death sentence and remanded the matter for a new penalty hearing. Jackson v. State, Del.Supr., 643 A.2d 1360 (1994) (“ Jackson I ”).FN1 The Superior Court conducted a second penalty hearing before a new jury which unanimously found that the State had established, beyond a reasonable doubt, two statutory aggravating circumstances FN2 and, by a vote of 11 to 1, found that the aggravating circumstances outweighed the mitigating circumstances. 11 Del.C. § 4209(c)(3). Again, the Superior Court considered the jury's recommendation and determined the death sentence to be appropriate. This appeal followed.

FN1. Our vacation of the previous sentence was based on a violation of Jackson's Sixth Amendment right to counsel. The violation concerned tapes of a telephone conversation in which Jackson had solicited a cell mate, Victor Talmo, to murder a key witness who was scheduled to testify against him. We determined that Jackson's Sixth Amendment right to counsel had attached and that Talmo was acting as a state agent when the conversations were recorded. We ruled that the tapes were improperly admitted as evidence in the hearing.

FN2. Although the State had alleged two statutory aggravating factors, each independently proven beyond a reasonable doubt, the trial judge considered them as one aggravating factor since the murder occurred during the course and in furtherance of the commission of a felony. See 11 Del.C. § 4209(e)(1)j.

I

In this appeal Jackson raises six issues which were previously raised and rejected by this Court on his first appeal.FN3 He alleges that the trial court: (1) failed to provide him with an impartial jury by striking jurors for cause who held reservations about imposing the death penalty; (2) failed to preclude his sneakers, seized without a warrant at the time of his arrest, from being admitted into evidence; (3) failed to suppress other evidence collected by way of a warrant during a nighttime search of his residence; (4) failed to suppress the testimony of a State's witness, Anthony Lachette; (5) abused its discretion in permitting the testimony of Detective Scott McLaren; and (6) imposed the death penalty for felony murder contrary to his rights under the Eighth and Fourteenth Amendments.

FN3. The prior history of this appeal including the circumstances surrounding Jackson's convictions, are entirely set forth in Jackson I.

These claims of error were previously resolved by this Court in Jackson I and those rulings constitute the “law of the case” for all subsequent proceedings. Bailey v. State, Del.Supr., 521 A.2d 1069, 1093 (1987). Thus, their reconsideration is precluded in this appeal. In addition to those issues, now barred from further review, Jackson has raised six new claims which will be separately addressed.

II

Jackson first contends that his rights as declared under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) and its progeny, were violated during the second penalty hearing when the trial judge struck ten prospective jurors for cause on account of their apparent opposition to the death penalty. Although submitted to this Court as one issue, Jackson in essence alleges two distinct errors of law. He first attacks the need to “death qualify” a jury under Delaware's new death penalty statute.FN4 Second, Jackson alleges the trial court erred by striking for cause several jurors who did not state unequivocally that they could never impose the death sentence. This Court has made it clear that under Delaware's present death penalty statute the jury must be “death qualified.” State v. Cohen, Del.Supr., 604 A.2d 846, 855 (1992). Despite our prior ruling, Jackson contends that because the jurors function only as an advisory body there is no constitutional basis for striking “death objecting” jurors for cause. It is argued that the striking of such jurors for cause denied Jackson a jury comprised of a fair cross-section of the community, thereby violating his Sixth and Fourteenth Amendment rights under the United States Constitution.

FN4. On November 4, 1991, the Governor signed and enacted into law Senate Substitute 1 for Senate Bill 79. This revision of Delaware's death penalty statute altered the respective roles that the judge and jury heretofore played in the sentencing phase of a capital murder trial. Under the new law the jury functions only in an advisory capacity, while the trial judge has the ultimate responsibility for determining if a defendant should be sentenced to death or life imprisonment. 68 Del. Laws Ch. 189 (codified at 11 Del.C. § 4209).

As stated previously in Cohen, we find no merit to this proposition and perceive of no basis to reexamine our prior holding. Jurors in a capital case, although not the final sentence arbiters, sit as the conscience of the community in determining whether the death penalty is the appropriate punishment and through their recommendation, play an integral role in the sentencing result. Cohen, 604 A.2d at 856; Witherspoon, 391 U.S. at 510, 88 S.Ct. at 1770. Any personal prejudices concerning the death penalty which would seriously impair a juror's ability to perform his duty, under the instructions given by the trial judge, are impermissible and contrary to legislative intent as reflected in the death penalty statute.

Having established the need to “death qualify” a jury, we now turn to the level of proof which must be established before a potential juror can be struck for cause. Jackson claims the trial court committed error when, during the second penalty hearing, it struck several jurors for cause who had not made it unmistakably clear they could never, under any circumstance, impose a sentence of death. Although Jackson's characterization of the juror's statements may be accurate his recitation of the law is not. In Delaware, a juror in a capital case may be excused for cause when that juror's views on the death penalty would prevent or “substantially impair” the performance of his duties in accordance with the court's instructions and the juror's oath. DeShields v. State, Del.Supr., 534 A.2d 630, 634 (1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 217 (1988); Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). Juror bias need not be proved with unmistakable clarity, for the individual juror may not know how he or she will react when faced with imposing the death sentence or he or she may simply be unable to articulate their true feelings. Id. at 424–425, 105 S.Ct. at 852–853. In the formation of that calculus, the role of the trial judge who observes a juror who may be “wrestling with his conscience” is paramount. It is for this reason that we review such rulings under an abuse of discretion standard. Sullivan v. State, Del.Supr., 636 A.2d 931, 939 (1994).

During the second penalty hearing, each prospective juror was asked by the court if he or she held any bias which would prevent the juror from performing his or her duty as a juror. Six of the ten jurors struck for cause answered unequivocally that they would be unable to impose the death sentence regardless of the evidence produced at trial.FN5 Two of the four remaining jurors in question, Nixon and Kerrigan, although answering the court in a somewhat ambiguous fashion, concluded that they would be unable to impose the death sentence.FN6 Thus, of the ten excusals for cause challenged by Jackson, only two, jurors Clapp and Bricotto, responded to the court's questioning in a less than emphatic manner.

FN5. Of the six potential jurors, two equated the death penalty with murder, three objected to the death penalty on religious grounds and one just “did not believe in the death penalty.” Each answered the trial court with definitive statements indicating an inability to impose the death penalty under any circumstance. FN6. Prospective juror Nixon told the court that she could not judge other people and therefore could not impose either the sentence of death or life imprisonment. Potential juror Kerrigan believed her religious beliefs would prevent her from recommending the death penalty even if the evidence warranted such a result.

Clapp was questioned extensively by the trial court in an effort to determine her position on the death penalty. Clapp tendered an equivocal response to each question and appeared to vacillate on whether she could sentence a person to death. Ultimately, Clapp was stricken for cause when she informed the trial court that exposure to graphic material concerning Jackson's crimes might so inflame her as to make it impossible for her to render an impartial and fair verdict. Potential juror Bricotto was doubtful of her ability to vote in favor of the death penalty. Bricotto was not opposed to the death penalty per se, but was unsure if she could personally take part in a life or death decision making process. Eventually the trial court excused her for cause, noting her inability to formulate a definitive response to the questioning. FN7. Upon the conclusion of Bricotto's testimony defense counsel stated, “[f]or the record, I think the court did everything it could to get her to commit one way or the other, but she equivocated so much that I don't know that she clearly stated that she would be substantially impaired from answering the question in the affirmative.”

The function of the trial judge during voir dire examination of jurors is to ascertain the presence of juror bias based on determinations of credibility which cannot be easily discerned from an appellate record. Wainwright, 469 U.S. at 429, 105 S.Ct. at 854–855. It is this process which Jackson seeks to invalidate. However, a review of the procedure used by the trial court reveals that each juror was subject to extensive examination and excused only after the court was satisfied that he or she was unsuitable for service on the jury. Contrary to Jackson's assertions, juror bias need not be proven with unmistakable clarity and a bright-line test for determining an unacceptable response has yet to be formulated. Id. at 424–425, 105 S.Ct. at 852–853. Determinations of juror bias depend on the trial court's assessment of the potential juror's demeanor, credibility and state of mind. It is for this reason that we accord deference to the trial court's findings. DeShields, 534 A.2d at 636. We conclude that the trial court's determination as to the ten stricken jurors' inability to “substantially perform” their duties to be amply supported by the trial record and, in this regard find no error.

III

A.

During the second penalty hearing the State presented evidence that following his arrest, Jackson was incarcerated in Gandor Hill prison and while there, solicited two fellow inmates to murder key State witness James Burton (“Burton”). One of these inmates was Victor Talmo (“Talmo”), who was incarcerated in default of bail and awaiting trial on burglary charges. On September 18, 1992, Talmo's girlfriend contacted New Castle County police detectives and informed them of Jackson's plans to murder Burton. That same day two detectives went to interview Talmo in prison. During this initial meeting Talmo told detectives that on September 8, and again on September 10, Jackson had discussed with him the murder of Burton. Jackson told Talmo that he would, through Jackson's mother, provide Talmo with bail money if, upon release, Talmo would kill the State witness.

Based on the September, 1992 prison meetings with Talmo, police detectives contacted prosecutors and prepared an application for a wiretap on the telephone of Jackson's mother. However, this plan was abandoned when, on September 24, 1992, police were contacted by Andre Johnson (“Johnson”). Johnson told police that he too had been solicited by Jackson to murder Burton and turned over to detectives a letter discussing, in code, Burton's death together with a photograph of Burton and a map of his residence. Because it appeared that Jackson had chosen to use Johnson as his accomplice rather than Talmo, the plan to wiretap the phone of Jackson's mother was abandoned. Following this decision, police had no further contact with Talmo until February, 1993.

On February 15, 1993, Talmo was released on bail and subsequently received a letter from Jackson concerning the murder of Burton. Similar to the package sent Johnson, this letter was coded, contained a picture of Burton and directions to Burton's residence. Through previous conversations, Talmo knew that shortly after his release from prison Jackson would be sending him such a letter. Upon receipt, Talmo turned the letter over to his attorney, who later contacted police in March of 1993. In return for his cooperation, the State entered into a favorable plea agreement with Talmo regarding his pending burglary charge.FN8

FN8. Because of his long criminal history, Talmo was faced with the possibility of being declared an habitual offender, a classification which would subject him to non-mandatory life imprisonment if found guilty of burglary. As a result of cooperating with police Talmo accepted a plea agreement, as an habitual offender, under which he would only serve 30 months incarceration.

The attempt to arrange the murder of a State witness was used at the second penalty hearing to demonstrate Jackson's violent propensities and was considered by the trial court to be a non-statutory aggravating circumstance. Jackson contends that Talmo was a State agent who deliberately elicited incriminating statements from him in violation of his Sixth Amendment right to counsel. Jackson claims the letter, map, photograph and all of Talmo's testimony was inadmissable on Sixth Amendment grounds.

B.

To succeed on this claim, Jackson must demonstrate that Talmo was both acting as a state agent and deliberately solicited the incriminating statements from Jackson.FN9 A review of the Supreme Court's significant Sixth Amendment right to counsel decisions, illustrates the difficulty in defining the term “State agent.” Rather than attempting to create a uniform test for determining State agency, the Court has chosen instead to focus on the information gathering conduct. Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964) (“deliberately elicited”); Brewer, 430 U.S. at 399, 97 S.Ct. at 1240 (“set out to elicit”); Moulton, 474 U.S. at 176, 106 S.Ct. at 487 (“knowingly circumventing the right to counsel”). A common thread woven throughout these decisions is the prevention of secret interrogations conducted by “investigatory techniques that are the equivalent of direct police interrogation.” Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 2630, 91 L.Ed.2d 364 (1986). This Court has also noted that “conversations with secret informants pose a greater imposition upon a defendant than overt police interrogation because the defendant does not know he is being interrogated by a government agent.” Jackson, 643 A.2d at 1375.

FN9. The State concedes that Jackson's Sixth Amendment right to counsel had attached prior to his initial contacts with Talmo. Thus, the focus shifts to whether Talmo was a state agent and the specifics of his conduct. The Supreme Court has made it abundantly clear that the right to counsel attaches once judicial proceedings have been initiated against a defendant. Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977). For it is at this point in the proceedings that “ ‘the government has committed itself to prosecute, and ... the adverse positions of the government and the defendant have solidified.’ ” Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985). A more complete analysis of the Sixth Amendment right to counsel can be found in our opinion stemming from Jackson's first appeal. Jackson, 643 A.2d at 1370.

Contained in our decision remanding this issue to the Superior Court, was a list of factors to be considered when making the determination as to whether Talmo was a State agent at the time he received the incriminating evidence from Jackson. As we noted in Jackson I, there is no bright-line test for determining whether an individual is a government agent and the factors listed do not represent an exhaustive list of permissible considerations. Id. We do however, find these factors to be particularly applicable to the present appeal and will apply them in reviewing the trial court's determination that Talmo was not acting as a State agent.

The four points of inquiry are: (1) whether there was an agreement between the police and Talmo; (2) the content and scope of any agreement; (3) whether the police provided direction or instructions to Talmo; and (4) whether there was prearranged or ongoing cooperation between Talmo and the police. Id. at 1376; see United States v. Johnson, 10th Cir., 4 F.3d 904, 911–12 (1993). For purposes of this appeal, the critical time frame to be examined is from the September 21, 1992, initial meeting between the police and Talmo, and late February 1993 when Talmo received the incriminating letter from Jackson. If during this time frame Talmo was acting as a government agent and deliberately solicited the contested evidence, he did so in violation of Jackson's Sixth Amendment right to counsel.

During the first meetings between Talmo and police in late September 1992, the detectives did not offer a deal to Talmo nor did they provide him with any directives. During these meetings Talmo reported to police that Jackson had, without solicitation, approached him concerning the murder of Burton. While these meetings may have served to cast Talmo as an informant, a police informant is not necessarily a state agent for all purposes. Johnson, at 912. Detective McLaren, the State's chief investigative officer, testified that no agreement of any kind was reached between himself and Talmo.FN10 This lack of agreement is evidenced by the fact that, subsequent to the meeting with McLaren, Talmo remained incarcerated until he was able to post bail in February 1993, six months after his last contact with police. Moreover, the record fails to reflect any contact between Talmo and police after the September 21, 1992 meeting, until his attorney contacted police with the letter received from Jackson.

FN10. Detective McLaren's testimony was as follows: Q: Did you, on the 21st of September, 1992, when you met with Talmo at Gander Hill, request anything of him of a future nature? A: No Sir. Q: Was there at that time; that is, the 21st of September, 1992, any agreement between you and the New Castle County Police and Talmo? A: No Sir, none whatsoever. Q: Did you provide any direction or instructions to Talmo on the 21st of September, 1992? A: No Sir. Q: Was the map, letter and photograph that you received in March of 1993 purportedly written by Jackson to Talmo, was all of that stuff received at your request? In other words, did you ask Talmo to get that stuff for you? A: No Sir. Q: Do you have any knowledge as to whether Talmo deliberately elicited the letter, map and photograph from Jackson? A: No Sir.

Despite the lack of police direction, we note the likelihood that Talmo appreciated an opportunity to assist police with the prosecution of Jackson as a way of improving his own position. The Sixth Amendment, however, serves to prevent government officials from violating a defendant's constitutional right to counsel and does not protect a defendant against private individuals who wish to profit at his expense. Such was the case here. Talmo successfully exploited Jackson's failed attempt to murder a State witness but did so on his own initiative and not under the direction of government officials.

Upon careful review of the record, we find that Talmo was not acting as a government agent during the relevant time period and therefore, the trial judge at the second penalty hearing was not in error by admitting into evidence the incriminating material sent from Jackson to Talmo. In view of our holding that Talmo was not a State agent, the question as to whether he deliberately solicited the letter from Jackson is irrelevant.

IV

Jackson next contests the denial of his motion which sought the recusal of the trial judge based on a perceived inability to be impartial in the sentencing process. Jackson's motion was posited on the fact that the trial judge, during the first penalty hearing, had heard the taped telephone conversations between Talmo and Jackson, later ruled inadmissible in Jackson I, concerning the murder of Burton.

The Delaware Judges' Code of Judicial Conduct reads in pertinent part: A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, ..., where the judge has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. Delaware Judges' Code of Judicial Conduct, Canon 3C. This Court has crafted a two step analysis in reviewing a trial judge's recusal decision: (i) whether, as a matter of subjective belief, the judge was satisfied that he or she could proceed to hear the case free of bias or prejudice concerning a party; and (ii) whether objectively there is an appearance of personal bias. Los v. Los, Del.Supr., 595 A.2d 381, 384–385 (1991). On appeal the reviewing court must be satisfied that the trial judge engaged in the subjective test and will review the merits of the objective test. Id. at 385. The standard of review is abuse of discretion. Id.

It is obvious from the trial judge's ruling on the motion, as Jackson concedes, that the judge engaged in the subjective test and determined that he could be fair and impartial at the second penalty hearing. Jackson argues, however, that the appearance of bias is so persuasive that the trial judge was required to recuse himself. We will therefore focus on the merits of the objective test.

We are unpersuaded by Jackson's arguments and find no objective appearance of bias or prejudice. Admittedly the trial judge heard the tainted taped phone conversations during the first penalty hearing, however, at the second penalty hearing the State presented what we now hold to be constitutionally admissible evidence of the same plot. Supra. pp. 750–751. To serve as a disqualifying factor, the alleged bias or prejudice of the judge “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” Los, 595 A.2d at 384 (1991) citing U.S. v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). Talmo's testimony at the second trial was equally as condemning of Jackson as was his testimony at the first penalty hearing. Even without hearing the murder plot discussed in Jackson's own voice, a reasonable trier of fact could have concluded that Jackson was engaged in a plot to solicit the murder of a key State witness.

It is part of a trial judge's normal role to rule upon the admissibility of contested evidence. In the event a judge declares certain evidence to be inadmissable, the judge is expected to exclude that evidence as a factor in any further decision making process. To require a judge to disqualify himself or herself from further participation in a case where the judge acts as a gatekeeper for the admissibility of evidence would impose an unreasonable and totally impracticable standard. A conscientious application of the subjective test by a judge faced with a recusal motion based on exposure to inadmissible evidence in the same proceeding will, in most cases, provide sufficient protection from bias. Knowledge of the content of these tapes alone does not create the appearance of bias and we find no basis to conclude that the trial judge should have recused himself from further participation in the sentencing process. Weber v. State, Del.Supr., 547 A.2d 948, 951–52 (1988) (judge not disqualified per se by prior participation).

V

Jackson next alleges the trial court erred as a matter of law by failing to instruct the jury as to the proper burden of proof for establishing a non-statutory aggravating factor. Specifically, Jackson contends the trial court failed to instruct the jury and itself applied an evidentiary standard for non-statutory aggravating circumstances, which did not require proof beyond a reasonable doubt.FN11 This claim is controlled by our decision in Dawson, 637 A.2d at 62–64, in which we held that “the Delaware death penalty statute does not require the State to present evidence establishing a non-statutory aggravating circumstance beyond a reasonable doubt before it may be ‘found to exist.’ ” See also Jackson, 643 A.2d at 1360. Relying on our previous holding, we find no error in the trial court's use of a “credible and reliable evidence” standard of proof for determining the existence of a non-statutory aggravating circumstance.

FN11. The State in its answering brief asserts that Jackson failed to raise this issue before the trial court and therefore, it is not a proper matter for review on appeal. Because this is a capital case, we will consider the claim under a plain error standard of review. Dawson v. State, Del Supr., 637 A.2d 57 (1994).

VI

In Jackson I, this Court vacated Jackson's death sentence and therefore concluded it would be improvident to conduct, at that time, our mandatory review of all death sentences to determine whether the sentenced imposed is “disproportionate to the penalty recommended or imposed in similar cases.” Id. at 1381 (quoting language from 11 Del.C. § 4209(g)(2)(a)). Since the Superior Court has conducted a second penalty hearing and Jackson's claims on appeal have been found to be without merit, we will undertake our statutory obligation to review the proportionality of Jackson's death sentence. 11 Del.C. § 4209(g)(2).

In the second penalty hearing the jury by a vote of 12 to 0 found the statutory aggravating factors had been proven beyond a reasonable doubt and further determined by a vote of 11 to 1 that the statutory aggravating factors outweighed the mitigating factors. Following the jury verdict, the Superior Court carefully conducted both a qualitative and quantitative analysis relating to the totality of the circumstances surrounding the offense as well as all factors relating to the offender, his propensities, and his character.

The Superior Court determined that the State had successfully established the existence of a statutory aggravating circumstance, i.e., Jackson committed a murder during the course of and in furtherance of the commission of a felony (Robbery First Degree and Burglary Second Degree). The court also concluded the following non-statutory aggravating circumstances existed: (1) while in prison Jackson had conspired to murder a State witness who would testify against him; (2) the defendant had an extensive violent criminal history both as a juvenile and as an adult; (3) defendant previously carried a concealed deadly weapon during a violent trespassing incident; (4) that two children had their mother taken from them in a vicious and brutal manner; (5) the manner in which the killing occurred demonstrated a cold, depraved indifference to human life; and (6) the murder occurred in order to avoid detection and to silence a witness.

In assessing the mitigating factors the court found the following to exist: (1) the defendant's young age, (2) that the defendant expressed sorrow for his friends, family and the victim's family, (3) the emotional loss to the defendant's family should he be executed, (4) defendant's abusive family life, and (5) psychiatric testimony that defendant suffers from a mixed personality disorder, impulsive control disorder and substance abuse. After according great weight to the jury findings, the Superior Court, using an independent analysis, determined that the aggravating factors outweighed the mitigating factors. The court commented on the brutal manner in which the murder occurred, specifically how Jackson, without provocation, repeatedly struck an innocent and helpless victim in the face with an axe. In its sentencing report the Superior Court noted:

The defendant's activities for some time before his arrest on these charges evidence a young man out of control, with no regard for the property or health of others. Since his arrest, he has planned the death of a witness and attempted to have a former jail mate carry out the plans. Defendant's criminal history that has continued up until the commencement of this trial, greatly outweighs any hope of a chance of productivity that may be possible if defendant is incarcerated for life. Consistent with its analysis and observations, the court sentenced Jackson to death.

Our careful examination of this case and those within the universe of cases which have gone to a death penalty determination since the 1991 amendment to the capital punishment statute 11 Del.C. § 4209 FN12, reveals that Jackson, like others sentenced to death in Delaware, committed an unprovoked, cold-blooded, murder of a person who lacked the ability to defend herself, solely for pecuniary gain. DeShields, 534 A.2d at 649. The death sentence imposed in this case was neither arbitrary nor capricious and is proportionate to the sentences imposed in like First Degree Murder cases which have resulted in the death sentence. FN12. A listing of such cases appears as Appendix A to this opinion.

We therefore conclude that Jackson's sentence of death for the brutal slaying of Elizabeth Girardi was proportionate when compared with the sentences imposed in Delaware's universe of cases.

The judgment of the Superior Court imposing a sentence of death is AFFIRMED. This matter is remanded to the Superior Court for further proceedings consistent with the scheduling of a new execution date pursuant to Superior Court Criminal Rule 61( l ). This Court's order of November 6, 1995, staying the execution of Robert W. Jackson's death sentence shall terminate upon issuance of this Court's mandate. The Clerk of this Court is directed to cause a copy of this opinion to be transmitted forthwith to the attorneys for the parties and to the Commissioner of the Department of Correction.

APPENDIX

FIRST DEGREE MURDER CASES THAT WENT TO PENALTY HEARINGS UNDER 11 DEL.C. § 4209 AS AMENDED IN 1991 IN 68 DEL.LAWS CH. 189 The following list of cases is a complete restatement of all first degree murder cases decided under 11 Del.C. § 4209 as amended in 1991 by 68 Del.Laws Ch. 189, that have gone to a penalty hearing. It incorporates and supersedes the appendices in our decisions in Lawrie v. State, Del.Supr., 643 A.2d 1336, 1352–56 (1994); Ferguson v. State, Del.Supr., 642 A.2d 772, 792 (1994); Gattis v. State, Del.Supr., 637 A.2d 808, 823–24 (1994); Dawson v. State, Del.Supr., 637 A.2d 57, 69 (1994); Sullivan v. State, Del.Supr., 636 A.2d 931, 953–54 (1994); Wright v. State, Del.Supr., 633 A.2d 329, 344 (1993); Red Dog v. State, Del.Supr., 616 A.2d 298, 312–15 (1992); Pennell v. State, Del.Supr., 604 A.2d 1368, 1378–79 (1992); Dawson v. State, Del.Supr., 581 A.2d 1078, 1109–11 (1990). Cases Decided Under 11 Del.C. § 4209 As Amended in 1991 by 68 Del.Laws Ch. 189

Jackson v. State, 770 A.2d 506 (Del.Supr. 2001). (PCR)

Following affirmance of convictions for, inter alia, first degree murder, but reversal of death sentence for new penalty hearing, 643 A.2d 1360, death penalty was again imposed, which decision was affirmed on appeal, 684 A.2d 745. Motion for postconviction relief was then filed. The Superior Court, New Castle County, denied motion. Movant appealed. The Supreme Court, Steele, J., held that: (1) no presumption of ineffective assistance arose from fact that one of two defense attorneys was appointed only 16 days before trial commenced; (2) counsel were not ineffective for failing to hire independent forensic experts; (3) state violated Brady v. Maryland by failing to inform defense counsel of state's implicit promise of future leniency for witness's favorable testimony; but (4) Brady violation did not undermine confidence in verdict. Affirmed.

Jackson v. Carroll, 161 Fed.Appx. 190 (3d Cir. 2005) (Habeas).

Background: Following his state court conviction of capital murder and imposition of sentence of death, and denial of his petition for post-conviction relief, petitioner sought writ of habeas corpus in federal court. The United States District Court for the District of Delaware, Sue L. Robinson, J., denied relief, but granted Certificate of Appealability (COA).

Holdings: The Court of Appeals, McKee, Circuit Judge, vacated COA, treated notice of appeal as request for COA, and held that: (1) petitioner failed to establish per se ineffectiveness of counsel resulting from lack of time to prepare for trial; (2) erroneous admission of propensity evidence did not warrant mistrial; and (3) defense counsel's failure to elicit testimony from state's witness indicating that witness was expecting favorable consideration from state did not amount to ineffective assistance. Certificate of appealability denied.

McKEE, Circuit Judge.

Robert W. Jackson appeals the District Court's denial of his petition for habeas relief. He argues that his attorneys were ineffective at trial because they did not have enough time to adequately prepare a defense, and because they failed to object to certain trial testimony. He also argues that he was denied a fair trial as a result of the prosecution's failure to disclose an implicit promise of immunity to a prosecution witness.

After denying relief, the District Court explained its grant of a Certificate of Appealability (“COA”) as follows: “A certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) is granted, the court finding that this is a capital case under 11 Del. C. § 4202 and that there are ambiguities in the application of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to the facts at bar.” FN1 However, Jackson's brief on appeal neither cites nor argues Ring. Moreover, in response to the defendant's request for clarification, the District Court stated: “The court did not identify specific issues for appeal because of its understanding that, consistent with 28 U.S.C. § 2266(c)(1)(A), the Third Circuit may review the entire decision of this Court, regardless of this Court's determination under 28 U.S.C. § 2253(c)(2).” Given the confusion surrounding this COA, we would normally vacate the District Court's order and remand for further consideration of the propriety of issuing a COA. See Szuchon v. Lehman, 273 F.3d 299, 311 n. 5 (3d Cir.2001). However, inasmuch as the death penalty is involved, we think it more prudent to vacate the COA and consider Jackson's Notice of Appeal as a request for a COA. Id., see also (L.A.R. 111.3 ©). Viewing Jackson's Notice of Appeal in that light, for the reasons set forth below, we will deny the request for a COA.FN2

FN1. In Ring, the Supreme Court held that the Sixth Amendment right to trial by jury requires that a jury find beyond a reasonable any fact that would subject the defendant to the death penalty as opposed to life imprisonment. Ring, 536 U.S. at 589, 122 S.Ct. 2428. FN2. Our review is governed by 28 U.S.C. § 2253. Thus, Jackson is entitled to a COA “only if [he] has made a substantial showing of the denial of a constitutional right[.]”

I.

Because we write primarily for the parties, we recite only the facts and procedural history that are necessary for the disposition of this appeal. During post-conviction proceedings, the state court held hearings on Jackson's claims of ineffective assistance of counsel. At the August 21, 1998 hearing, David A. Ruhnke, a New Jersey attorney with extensive capital trial experience, provided expert testimony pertaining to the conduct of trial counsel, and concluded that it fell below that which is appropriate for a capital case. He opined that a reasonably competent attorney would need at least six months to prepare in a capital case, should inspect the physical evidence and verify any forensic results with independent experts, and should hire a private investigator to assist with witness interviews. Ruhnke believed there had been multiple failures on trial counsel's part and stated that he did not think an attorney could provide effective assistance in the time Jackson's trial counsel had to prepare.

Defense attorney Levinson explained that he did not ask for a continuance because he felt it was not necessary, particularly because O'Connell and other attorneys had been preparing the case for trial. He also testified that he felt comfortable, in light of his trial experience, cross-examining the state's forensic experts even though he had not retained independent experts to assist him. O'Connell testified that although he would have preferred additional time to prepare, he had adequate time to do so.

II.

In order for us to issue a COA, Jackson must “make a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). He attempts to do so by raising two issues on appeal. Each is considered separately.

A.

Jackson argues that his Sixth Amendment rights were violated as a result of his trial counsel's prejudicially ineffective assistance. He rests this argument on the time his attorneys were given to prepare for trial, and on their failure to object to unresponsive testimony of a prosecution witness.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), counsel's performance must fall “below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. However, Jackson must also show that “there is a reasonable probability that, but for counsel's unprofessional efforts, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

Relying on United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), Jackson argues that Levinson's appointment sixteen days before jury selection was per se unreasonable. According to Jackson, the brief time afforded Levinson precluded him from thoroughly investigating this case and obtaining independent forensic testing. Jackson claims that such testing would have created a reasonable probability of a different result.

However, Jackson does not even try to tell us how anything would have been different if Levinson had more time to prepare. In Cronic, the Court recognized that although a prisoner alleging ineffective assistance of counsel usually has the burden of proving that counsel's performance was unreasonable and that prejudice resulted, “[t]here are ... circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658, 104 S.Ct. 2039. Prejudice will therefore be presumed if the accused is denied counsel at a critical stage of his trial [or] .... if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing [or] ... when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. Id. at 659-60.

However, before we will presume prejudice under Cronic, there must be a complete failure of counsel. “Here, respondent's argument is not that his counsel failed to oppose the prosecution ... as a whole, but that his counsel failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind.” Bell v. Cone, 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). We therefore agree with the District Court's conclusion that Cronic does not apply here.

Thus, even if Jackson were able to show that counsel's performance was lacking because of insufficient time to prepare, he would not be entitled to relief under Strickland unless he could demonstrate that things would likely have been different if counsel had additional time. He has completely failed to satisfy that burden. As noted above, the core of his argument is that he was prejudiced by counsel's failure to conduct a complete and thorough investigation and independently test all physical evidence. Appellant's Br. at 31. He asserts that counsel could have performed appropriate forensic tests if given more time, but he is not even able to allege that the results of any such testing would have been favorable, and nothing on this record suggests it would have been.

Moreover, Jackson's defense counsel never requested a continuance, and both counsel testified that they thought they had enough time to prepare. In fact, although he is understandably not anxious to admit it here, before the Delaware Supreme Court, Jackson conceded that he was “hard pressed to articulate what exactly trial counsel would have discovered if they had requested and been granted funds for independent forensic tests of the physical evidence and such tests had been conducted before trial.” Jackson v. State, 770 A.2d 506, 513 (Del.2001).

The District Court did provide funds for Jackson to retain a forensic expert, but this expert-Dr. Hubbard-did not reach any conclusion favorable to Jackson. Jackson v. Carroll, 2004 WL 1192650 at *14 (D.Del.2004). Although he complains that the District Court's award of funds was “too little, too late,” he offers nothing else to satisfy the prejudice prong of Strickland. Although we are troubled by the brief amount of time afforded trial counsel and what appears to be a rather rigid adherence to expediting a capital case at the risk of affording inadequate time to prepare, there is nothing here to suggest that Jackson was prejudiced by the process other than his protests and speculative argument to that effect. That is not enough to meet the second prong of Strickland even if we assume that counsel was somehow derelict in not performing independent testing.

B.

The second part of Jackson's ineffective assistance argument centers on counsel's failure to object to a non-responsive answer of Anthony Lachette. When the prosecutor asked Lachette: “What were your thoughts when you and the defendant were talking about doing a burglary, a house burglary?” J.A. 181; Lachette answered: “I originally wasn't going to do it. It was something he did, I don't want to say as a habit, but it was something that he often did.” J.A. 182. Jackson argues that trial counsel were ineffective for not requesting a mistrial because Lachette's “response” was tantamount to inadmissible character evidence.

In rejecting this claim, the District Court stated: A showing of actual prejudice in this case would require a showing that an objection would likely have resulted in the ordering of a mistrial by the Superior Court. While evidence of petitioner's alleged propensity to commit burglary should have been excluded, where as here, it resulted from nonresponsive testimony and was not further referenced to the jury, it is not probable that a mistrial would have been ordered where at most a curative instruction would have sufficed. Consequently, because the Delaware Supreme Court found the absence of both unreasonable conduct by petitioner's trial counsel and prejudice, the Delaware Supreme Court's denial of petitioner's ineffective assistance of counsel claim was not objectively unreasonable. Jackson v. Carroll, 2004 WL 1192650 at *15. We agree.FN3 Thus, this claim fails to satisfy the substantial showing required by § 2253.

FN3. We realize, of course, that skilled defense counsel may not have objected or requested a curative instruction in order to avoid highlighting Lachette's testimony. However, we can not speculate that defense counsel was motivated by such tactical considerations in not requesting a mistrial. Rather, we simply conclude that Lachette's testimony did not warrant a mistrial, and defense counsel can not be faulted for failing to make a request that was not likely to be granted.

In addition, even if both instances of alleged ineffectiveness are viewed cumulatively as discussed in Frey v. Fulcomer, 974 F.2d 348, 361 n. 12 (3d Cir.1992), we would still conclude that Jackson can not establish the prejudice that is required under Strickland, or § 2253.

C.

Jackson's second claim is that he was denied his Sixth Amendment right to a fair trial as a result of the prosecution's failure to disclose an implicit promise of immunity to Johnson under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In order to show a Brady violation, Jackson must show 1) that the evidence was favorable to him, 2) that the evidence was suppressed by the state and 3) that prejudice resulted. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). As the Supreme Court explained in Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”

Given the totality of the evidence here, and the aggressive cross-examination Johnson was subjected to, we do believe that Jackson has demonstrated a “reasonable probability of a different result” id., if the jury had known that Johnson was expecting favorable consideration from the government in return for his testimony. Although the Delaware Supreme Court found that there was an implicit promise which the prosecution should have revealed to Jackson and that the failure to disclose it was “troubling,” and “offensive,” it did not find that this evidence was sufficient to undermine confidence in the verdict. Jackson v. State, 770 A.2d at 514-15. The court so concluded because of the overwhelming evidence of Jackson's guilt, not least of which was the evidence corroborating Johnson's testimony. The court explained that “[i]t is difficult to imagine a more powerfully persuasive set of corroborating circumstances” than Jackson's letter to Johnson and the evidence indicating that Jackson sent it. Id. at 517. During oral argument on appeal, defense counsel attempted to furnish an innocent explanation of the letter Jackson sent. However, the same arguments could have been made to the jury even absent knowledge of Johnson's belief regarding favorable treatment. Moreover, the possibility that the jury may have viewed Johnson though more jaundiced eyes if it had known of his belief, is speculative at best. FN4. Given the common sense that we ask jurors to bring to their deliberations, it strains credulity to suggest that the jury did not believe that Johnson thought he was going to get something favorable for his testimony in the first place.

Jackson also argues that the Delaware Supreme Court misapplied Kyles. He claims that the court relied on improper factors outside the record, including Jackson's lack of an alibi and the shoe print expert's report.FN5 He further claims that while there may be overwhelming evidence of his involvement in the burglary/robbery, the evidence that he murdered Girardi is far more tenuous and Johnson's testimony was therefore more important than the Delaware Supreme Court and District Court recognized. Jackson maintains that despite the evidence corroborating Johnson's testimony “there still exists the real possibility that Andre Johnson (a seasoned inmate) fabricated the true import of the letter.” Appellant's Br. at 46.

FN5. We are perplexed by the Delaware Supreme Court's suggestion that the absence of an alibi could somehow be relevant to Jackson's guilt. It is axiomatic that a defendant does not have to prove his innocence, and Jackson was therefore under no obligation to present an alibi. Accordingly, we can infer nothing from his failure to introduce evidence of an alibi.

Omitting all consideration of the alibi and shoe print issues, and conceding arguendo the importance of Johnson's testimony, Jackson has nevertheless provided no support for his contention that there is a “real possibility” that Johnson fabricated the import of the letter, and as we have already suggested, any innocent explanations he now provides could have been argued to the jury just as forcefully whether or not the jury knew of Johnson's expectation of reward for his testimony. The fact that Johnson had a motive to lie does not mean that he did lie. Jackson has simply not satisfied his burden of showing that a different outcome would have been likely had the jury had more information about his motive to lie. Thus, Jackson fails to make a substantial showing that he was denied his Sixth amendment right to a fair trial.

III. Conclusion