The man, identified in court papers as "John Doe III," told attorneys Steckel "didn't appear to care about the pain and suffering of his victims."

Doe III, who had been retired for several years at the time of the execution and was no longer licensed to practice as a paramedic or EMT, was one of the people directly responsible for setting up intravenous tubes to deliver the three-drug lethal injection to Steckel -- a setup that apparently failed.

Steckel's execution, the last before a federal judge put a hold on all executions by the state, did not seem to go correctly. It took 12 minutes for Steckel to die, with Steckel at one point looking up at the warden to say, "I didn't think it would take this long."

Steckel also convulsed and snorted just before he died, something experts said should not have happened.

The revelations came in a court filing this month in a federal lawsuit by attorneys for Delaware's death row inmates from the Federal Community Defender's office in Philadelphia. The class-action suit, which prompted a judge to put state executions on hold, challenges the state's use of lethal injection as unconstitutionally cruel and unusual punishment.

"The Department of Correction disputes the plaintiff's allegations and will address them at the appropriate time," spokesman John Painter said.

Earlier this year, the U.S. Supreme Court found in a Kentucky case that lethal injection is constitutionally permissible if carried out correctly. However, attorneys for the condemned in Delaware are arguing that the state's procedures have been inadequate and largely ignored, and newly adopted protocols are substantially different from those in Kentucky.

Attorneys for Delaware disagree and argue that Delaware's policies and procedures are even more stringent than those approved by the U.S. Supreme Court.

District Judge Sue L. Robinson is scheduled to meet with attorneys today to set a date for a hearing on the issue. She also will decide which witnesses will be heard and if the proceeding will last hours or days.

While attorneys for death row inmates are alleging Delaware's process is broadly flawed, the details of the Steckel execution appear to provide some of the strongest, most troubling evidence.

Steckel was convicted and sentenced to death for the September 1994 rape and murder of 29-year-old Sandra Lee Long. After sexually and physically assaulting the woman with a screwdriver and leaving her unconscious, Steckel set fire to the apartment as he left, trapping her inside, where she died.

He later bragged about the murder and, after his arrest, sent a copy of the victim's autopsy to her mother with a handwritten note, "Happy, Happy, Joy, Joy. Read it and weep."

Steckel's appeals ran out in 2005 and the 36-year-old father of one was executed early on Nov. 4, 2005.

Lethal injection executions are usually brief, lasting a few minutes. They begin with a short statement by the condemned followed by the administration of the drugs. The prisoner then appears to fall asleep and dies.

Steckel's execution, however, took nearly 12 minutes and twice he appeared to have completed his statement and braced himself. But it was not until after his third "last words" that the drugs appeared to take hold.

At that point, he did not simply pass out but physically shook and emitted a loud snort.

According to court papers, the primary IV tube to Steckel failed and executioners switched to a backup. But apparently the execution team neglected to re-administer the anesthetic in the three-drug sequence.

The three drugs include an anesthetic to put the condemned to sleep, followed by a paralyzing agent and then a drug that causes a heart attack.

According to attorneys for Delaware's death row inmates, "as far as records indicate, Mr. Steckel was administered a paralytic drug and then an extremely painful heart-stopping drug without having adequate anesthesia, in violation of the Eighth Amendment."

Department of Correction officials have maintained that nothing went wrong and that Steckel was simply given extra time to speak to his family.

Recently, they acknowledged that the primary IV line failed and the backup had to be used, but said that was a situation they were prepared for, so they still maintain nothing went wrong.

According to court papers, no follow-up investigation was ever conducted.

The irregularities with the Steckel execution were in addition to a number of other problems discovered by attorneys for the plaintiffs which paint a picture of a near-chaotic, and at the very least, unprofessional execution process in Delaware.

"In this case, depositions of execution team members reveal rampant confusion and errors among the members of the execution and IV teams, and practices departing from the written protocol, ranging from erroneous dosages being administered to a lack of required training," wrote attorney Michael Wiseman for the plaintiffs.

In the past, there were virtually no qualifications for execution team members, they received little or no training, and in many cases they were unaware of what the procedure was supposed to be, according to court papers.

"There was no formal selection process, and past wardens picked members based on relationships with other members of the team, or DOC personnel, or because team members had performed past executions," wrote attorneys.

In depositions, those involved in past executions were confused or unaware of who was in charge. Some thought it was the doctor, who said he was only there to declare death and not advise on procedures. Others, like the doctor, thought it was the warden, who assumed the doctor was the authority.

And, according to court papers, the "medicine room" where team members mixed the chemicals to be used in the execution was kept almost completely dark -- to maintain anonymity of the participants -- raising questions about the accuracy of the mixing procedure.

In at least five executions, including Steckel's, the wrong dose of the final drug was administered. In all five cases, more was used than was called for in the protocol. In four other cases, it is not known how much was used because the amount was not recorded as required.

State v. Steckel, 708 A.2d 994 (Del.Super. 1996).

Defendant who was convicted of first-degree murder moved to strike death penalty as potential punishment. The Superior Court, Carpenter, J., held that statutory aggravating circumstance allowing imposition of death penalty for murder of child 14 years old or younger if defendant is at least four years older than child victim was constitutional. Motion denied.

CARPENTER, Judge.

This is the Court's opinion disposing of the defendant's final Motion pending in this case, the Motion to Strike the Death Penalty and Dismiss or Merge Counts. [FN1] The motion challenges the constitutionality of the death penalty statute, and also contends that certain counts of the indictment should be merged for sentencing purposes. The issues raised regarding the death penalty will be addressed infra, however, the parties continue to discuss resolving the merger issue without court intervention and thus, that issue will be left until the date of sentencing, January 8, 1997.

FN1. On September 17, 1996 the Court issued an opinion disposing of two pre-trial defense motions: the Motion to Suppress and the Motion to Sever. See State v. Steckel, Del.Super., Cr. A. No. IN96-06-1760, Carpenter, J., 1996 WL 659483 (Sept. 17, 1996) (Mem.Op.). At the time that opinion was issued, the Court believed the matters presented in this motion to have been resolved by the parties. Unfortunately, that agreement never materialized. Thus, the Court now rules on the motion since the defendant's conviction makes the issue ripe for decision.

I. Procedural Posture

Mr. Steckel was originally indicted on two counts of Burglary Second Degree, two counts of Assault Third Degree, one count of Attempted Murder First Degree, one count of Unlawful Sexual Penetration First Degree, one count of Unlawful Sexual Intercourse First Degree, one count of Arson First Degree, and five counts of Murder First Degree. He was then reindicted on the additional count of Aggravated Harassment.

The entire indictment, except Count XIV, Aggravated Harassment, relates to the September 2, 1994 assault, rape and murder of Sandra Lee Long, and the burning of her Driftwood Club apartment. Count XIV relates to obscene phone calls received by Susan Gell, the defendant's self-proclaimed next victim, between August 2 and August 13, 1994.

After extensive discussions with defense counsel, the State nolle prossed five counts of the indictment: counts III and V, charging Assault Third Degree; count IV, charging Attempted Murder First Degree; and two counts of Felony Murder, counts XII and XIII, alleging criminal negligence. Accordingly, Mr. Steckel was tried on two counts of Burglary Second Degree, one count of Unlawful Sexual Penetration First Degree, one count of Unlawful Sexual Intercourse First Degree, one count of Arson First Degree, three counts of Murder First Degree, and one count of Aggravated Harassment.

Jury selection in the case began on September 10, 1996 and continued until September 17, 1996. The trial commenced on September 18, 1996 and lasted until October 1, 1996. The jury deliberated for approximately six hours over the course of two days and delivered their verdict on October 2, 1996: guilty on all counts of the indictment. The penalty hearing began on Tuesday, October 8, 1996 and was completed on Wednesday, October 16, 1996. The jury returned its sentencing recommendation on Thursday, October 17, 1996 and found that the aggravating circumstances outweighed the mitigating circumstances by a vote of eleven to one.

II. Discussion

It is the three convictions for first degree murder which render Mr. Steckel eligible for the death penalty pursuant to 11 Del.C. §§ 636 and 4209(a). Consequently, the defendant has challenged the constitutionality of the death penalty statute as written and as applied to him in this case.

The defendant offers several arguments in support of his motion. First, he contends that the Delaware statute provides for so many statutory aggravating circumstances that it fails to adequately narrow the class of persons eligible for the death penalty. As such, the defendant maintains that the State has inappropriately stacked the statutory aggravating circumstances where the death penalty may be imposed, and thus has reached a point where it is violative of the Eighth Amendment of the U.S. Constitution. Second, the defendant asserts that the statute is violative of both State and federal constitutional standards in that it fails to provide for any consideration of mercy. The defendant's contentions are without merit and will be addressed seriatim.

The defendant first contends that the present statute is violative of federal constitutional standards in that it fails to adequately narrow the class of individuals who may be subject to the death penalty. Thus, the defendant maintains, Delaware's statute is constitutionally infirm due to the litany of aggravating circumstances provided for in the statute which, he argues, qualifies most convicted first degree murderers for capital punishment. To appropriately consider the defendant's argument, a brief overview of the evolution of the present statute is necessary.

The Delaware death penalty statute has been amended several times in recent years, and faced constitutional challenges at every turn. [FN2] The basic constitutional framework for capital punishment was established by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), when it approved the constitutionality of death penalty laws which limited the discretion of the sentencing jury, but invalidated several mandatory death penalty statutes, including the Delaware statute in place at that time.

The laws which were upheld in Gregg included three common features: (1) a bifurcated trial; (2) a requirement that juries find the existence of specific aggravating circumstances and consider mitigating circumstances before imposing the death penalty; and (3) expedited appellate review of all jury impositions of death sentences. See Lawrie v. State, Del.Supr., 643 A.2d 1336, 1345 (1994), cert. denied, 513 U.S. 1048, 115 S.Ct. 646, 130 L.Ed.2d 551 (1994). It was these guidelines which formed the pattern for the Delaware death penalty statute enacted in 1977. See id. at 1346 ("The General Assembly modeled § 4209 after the Georgia statute which the United States Supreme Court sanctioned in Gregg, and thereby incorporated the three aspects delineated above into Delaware's death penalty procedure.")

FN2. See, e.g., Sullivan v. State, Del.Supr., 636 A.2d 931 (1994); State v. Cohen, Del.Supr., 604 A.2d 846 (1992); State v. Ferguson, Del.Super., Cr. A. No. IN91-10-0576, Gebelein, J., 1995 WL 862123 (Aug. 25, 1995); State v. Deputy, Del.Super., 644 A.2d 411 (1994).

In 1991, significant changes were made to Delaware's statutory scheme regarding the imposition of capital punishment. Prior to 1991, a unanimous jury verdict was required to impose the death penalty. However, the new statute disposed of the unanimous verdict requirement and placed the ultimate decision-making responsibility in the trial judge. See Shelton v. State, Del.Supr., 652 A.2d 1, 6-7 (1995). These revisions were drafted to emulate the Florida statute that was upheld in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). See 68 Del. Laws Ch. 181, Synopsis (stating "this bill generally follows the Florida statute as approved by the United States Supreme Court").

The revised law transformed the jury's role in a capital murder trial from the absolute sentencing authority to that of an advisory capacity. When the amended 1991 statute was tested in State v. Cohen, Del.Supr., 604 A.2d 846 (1992), the Delaware Supreme Court found "the new law valid in all respects." Id. at 848 (emphasis added). Thus, it is clear that the statute as amended in 1991 is constitutionally sound, and therefore, the Court need only address the most recent amendments to the statute. In 1994, the General Assembly expanded the list of statutory aggravating factors by adding sections (s) through (u) to 11 Del.C. 4209(e)(1). [FN3]

FN3. The Court notes that since the State only sought to prove one statutory aggravating circumstance, 11 Del.C. § 4209(e)(1)(j), Mr. Steckel is not subject to the additional factors added in 1994. However, the factors from the 1994 amendments became effective July 14, 1994 and would be applicable to this defendant if the facts of the case so warranted, since the murder of Sandra Lee Long occurred September 2, 1994.

They are:

(s). The victim was a child 14 years of age or younger, and the murder was committed by an individual who is at least 4 years older than the victim.

(t). At the time of the killing, the victim was or had been a nongovernmental informant or had otherwise provided any investigative, law enforcement or police agency with information concerning criminal activity, and the killing was in retaliation for the victim's activities as a nongovernmental informant or in providing information concerning criminal activity to an investigative, law enforcement or police agency.

(u). The murder was premeditated and the result of substantial planning. Such planning must be as to the commission of the murder itself and not simply as to the commission or attempted commission of any underlying felony. 69 Del.Laws Ch. 439 (codified at 11 Del.C. § 4209(e)(1)(s)-(u)).

Finally, in 1995, the General Assembly expanded the list of statutory aggravating circumstances to twenty-two by adding section (v) dealing with "hate crime" offenses. [FN4] Since this amendment was not effective until July 6, 1995, and because the Court believes the defendant has no standing to object to this amendment, the Court finds it inapplicable to the case at bar. Therefore, the Court will not consider the constitutionality of this amendment or its effect on the overall constitutionality of the statute. As a result, the Court's first task is to review the constitutionality of the 1994 amendments.

FN4. Section (v) states the following: The murder was committed for the purpose of interfering with the victim's free exercise or enjoyment of any right, privilege or immunity protected by the First Amendment to the United States Constitution, or because the victim has exercised or enjoyed said rights, or because of the victim's race, religion, color, disability, national origin or ancestry. 70 Del. Laws Ch. 137 (codified at 11 Del.C. § 4209(e)(1)(v)).

The principle that statutory aggravating circumstances must genuinely narrow the class of persons eligible for the death penalty stems from the concern expressed by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) that "the worst criminals or the criminals who commit the worst crimes are selected for this punishment." Id. at 294, 92 S.Ct. at 2754 (Brennan, J., concurring). Later, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the United States Supreme Court expounded upon "the need for legislative criteria to limit the death penalty to certain crimes." Zant v. Stephens, 462 U.S. 862, 877- 78 n. 15, 103 S.Ct. 2733, 2742 n. 15, 77 L.Ed.2d 235 (1983). "The decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." Gregg, 428 U.S. at 184, 96 S.Ct. at 2930. This community expression is legislatively reflected by the establishment of statutory aggravating circumstances that would justify the imposition of death if found to exist.

It is thus required before capital punishment may be considered, that the defendant first be convicted of the crime of Murder First Degree, and that at least one of the statutory aggravating circumstances established by the General Assembly be applicable to the defendant's actions. This does not mean, however, that the inquiry comes to an end by the General Assembly's decision to enact certain statutory aggravating circumstances. To avoid imposing the death penalty in a "wanton or freakish manner," the discretion as to whether to impose the death penalty "must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3099, 111 L.Ed.2d 606 (1990) (quoting Gregg, supra, 428 U.S. at 189, 96 S.Ct. at 2932).

It is the task of the General Assembly to establish aggravating circumstances to "channel the sentencer's discretion by 'clear and objective standards' that provide specific and detailed guidance." Id. (quoting Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980)). The United States Supreme Court recently reiterated the two requirements that must be established for an aggravating circumstance to be found constitutional in Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994).

First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder. See Arave v. Creech, 507 U.S. 463, 473, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993) ("If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm"). Second, the aggravating circumstance may not be unconstitutionally vague. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764-1765, 64 L.Ed.2d 398 (1980); see Arave, supra, 507 U.S., at 471, 113 S.Ct., at 1541 (court " 'must first determine whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer' ") (quoting Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 3057-58, 111 L.Ed.2d 511 (1990)). Tuilaepa, 512 U.S. at 972, 114 S.Ct. at 2635.

Our own Supreme Court has also articulated the constitutional criteria by which statutory aggravating circumstances must be judged. In State v. White, Del.Supr., 395 A.2d 1082 (1978), the Court was faced with several challenges to the 1977 death penalty statute, including a constitutional challenge to two statutory aggravating circumstances. There, the defendant alleged that the provisions of former sections (r) and (s) were unconstitutionally vague due to the fact that the terms "elderly" and "defenseless" were not legislatively defined.

The Court agreed and held "the constitutionality of a death penalty statute rests upon the premise that the sentencing authority's discretion in imposing the death penalty is guided and channeled by clear and objective statutory standards." White, 395 A.2d at 1090. In striking down those provisions as unconstitutionally vague, the Court quoted from the Supreme Court of Georgia: "[w]henever a statute leaves too much room for personal whim and subjective decision-making without a readily ascertainable standard or minimal, objective guidelines for its application, it cannot withstand constitutional scrutiny." Id. (quoting Arnold v. State, 236 Ga. 534, 224 S.E.2d 386, 391 (1976)). The danger, said the Court, is that "by the use of such vague terminology, there is substantial risk that sentencing authorities will inflict the death penalty in an arbitrary and diversified manner." Id. at 1091.

In State v. Chaplin, Del.Super., 433 A.2d 327 (1981), aff'd, Del.Supr., 433 A.2d 325 (1981), the constitutionality of another statutory aggravating circumstance was examined. Former section (n) provided that "the murder was outrageously or wantonly vile, horrible or inhuman." Relying on the United States Supreme Court case of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), the Court found that the language of this factor was unconstitutional because "[t]here is nothing in these few words standing alone that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence." Chaplin, 433 A.2d at 329. [FN6]

FN6. Former section (e)(1)(n) was later amended to correct the infirmity by adding more specific language to the Code. The current version reads as follows: "The murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, use of an explosive devise or poison or the defendant used such means on the victim prior to murdering the victim." 11 Del.C. § 4209(e)(1)(l).

After carefully reviewing the statutory aggravating circumstances added in 1994, the Court finds that they are constitutionally permissible under the "clear and objective" standard of White, Chaplin, and the United States Supreme Court cases discussed above. Factor (e)(1)(s) clearly states that this statutory aggravating circumstance applies to cases where the victim is a child of age 14 or younger, and the defendant is at least four years older than the victim. See State v. Demby, Del.Supr., 672 A.2d 59 (1996) (interpreting section (s) and holding that the victim's age is an aggravating factor when the victim is under the age of 15). This aggravating factor reflects an appropriate legislative intent to harshly punish those who pray on the youth of our community. This section is clearly written, particularly now that the age issue was resolved in Demby, and is easily applied in a consistent and non-arbitrary fashion.

Factor (e)(1)(t) addresses the killing of informants in retaliation for providing information to the law enforcement community. The Court considers this aggravating circumstance to be a suitable response to violent and egregious conduct that undermines the foundation of the criminal justice system. Again, this factor is clearly defined and can be applied in a consistent and non-arbitrary manner.

Finally, factor (e)(1)(u) addresses the murder committed after substantial planning and aforethought. It is difficult to envision a more appropriate aggravating factor than the killing of another human being that is the result of a carefully planned, contemplated and executed strategy. While its application is highly dependent on the facts of each case, and by its nature it may be one of the more difficult factors to establish, this does not mean that the jury and court would be unable to carefully and consistently apply this aggravating factor in an objective manner. Again, the Court finds this aggravating factor to be clear, precise, and capable of being applied in a non-arbitrary fashion.

All of these aggravating factors present separate circumstances which may be applied in a "clear and objective" manner to a unique subclass of defendants as required under the law. Further, they are not written in a vague manner that would lead to the arbitrary or indiscriminate imposition of the death penalty. Therefore, the Court is not convinced that the statutory aggravating circumstances discussed above are inconsistent with the constitutional mandate set forth in Gregg, White, and their progeny; nor is the Court persuaded that the most recent amendments to the death penalty statute render it constitutionally infirm under either state or federal grounds. Accordingly, the Court finds the 1994 amendments to 11 Del.C. § 4209(e) constitutional.

While the Court has found each of the aggravating circumstances discussed above to be constitutional standing alone, it must now address the defendant's argument that the State has inappropriately stacked the statutory aggravating circumstances "so as to virtually eliminate the likelihood of any Murder First Degree defendant not being eligible for a death sentence." In other words, is there a point where the cumulative effect of the number of statutory aggravating circumstances renders the statute as a whole unconstitutional?

While the United States Supreme Court has not specifically examined this issue, the defendant's argument has some support in the language of the cases addressing other death penalty matters. For example, in Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), the Court examined a defendant's challenge to the Florida statute which allows a judge to impose the death penalty even when the jury recommends a life sentence. There the Court stated, "[i]f a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not." Id. at 460, 104 S.Ct. at 3162. In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the Court considered the sentencing implications for a defendant who was sentenced to death based on three aggravating circumstances, where one of those aggravators was subsequently held to be unconstitutional. Again, the Court emphasized, "an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Id. at 877, 103 S.Ct. at 2742.

Given the logic of the defendant's argument, a search was conducted of the 38 states which have the death penalty to see how Delaware compared in the number of aggravating circumstances in effect in each state. This search revealed that Delaware does have more statutory aggravating circumstances in sheer number than any other state. Those closest to Delaware include California with 19; Alabama with 18; Missouri, Pennsylvania and Utah with 17; and Illinois and Indiana with 15. Of the states listed above, California, Alabama and Missouri's statutes have reached the United States Supreme Court and been upheld. See Tuilaepa, supra; Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995); Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

However, a pure mathematical calculation as to the number of aggravating circumstances can be misleading. A more thorough review reveals that the Delaware statute separately lists certain aggravating circumstances that are incorporated together as one in other states. Additionally, some factors found as aggravators in other states have not been included in the Delaware statute. At best, this information leads one to reasonably conclude that Delaware is not out of line, nor has it reached the point where the defendant's argument would perhaps have merit.

While the Court does not dispute that at first blush the defendant's argument appears logical, it is disturbed by the prospect of how one determines the point at which the number of aggravating circumstances causes the death penalty statute to be generally unconstitutional. Is the Court to engage in some mathematical calculation as to who might be covered by the statute and who is not; and if so, what would be reasonable and logical factors to include in the formula? Can the Court arbitrarily declare that fifty aggravating circumstances is too many but forty-nine is permissible? Even assuming one could ever create a tool that would measure the percentage of defendants eligible for capital punishment, where is the dividing line of constitutionality and who makes that decision?

The Court believes these questions demonstrate why the only appropriate, logical, practical and reasonable means to determine the constitutionality of aggravating circumstances in a death penalty statute is to only consider the parts of the statute applicable to the defendant and to the specific facts of each case, and not the statute relative to the universe of potential defendants. When one considers that seldom is a defendant ever alleged to be death-eligible because of more than a few aggravating circumstances, the logic of this limitation becomes apparent. In other words, is it reasonable for a defendant who has become eligible for the death penalty because he qualifies under one aggravating circumstance to become ineligible because of a number of other factors completely irrelevant and unrelated to his actions?

 The Court believes that such a result is not mandated by the Constitution nor would it serve the interest of assuring that justice has been performed. In this case, the State only sought to prove a single statutory aggravating circumstance in the penalty phase. That is, that "the murder was committed while the defendant was engaged in the commission of, or attempt to commit, or flight after committing or attempting to commit any degree of rape, unlawful sexual intercourse, arson, kidnapping, robbery, sodomy or burglary." 11 Del.C. § 4209(e)(1)(j). This aggravating factor has previously been upheld as constitutional, and the Court's inquiry has been fulfilled.[ FN7]

FN7. The Court also notes that this case does not reflect any action by the prosecution to "stack" aggravating circumstances in an attempt to inappropriately influence either the jury or the Court. In fact, the State exhibited wise and prudent prosecutorial discretion in only arguing for one aggravating circumstance when the possibility existed for several others to also apply.

The fact that the legislature has set forth twenty-two specific statutory aggravating circumstances manifests society's concern that certain actions are so heinous as to be worthy of capital punishment. The Court believes that in promulgating this legislation, the General Assembly has done so with due regard for the gravity of the subject matter. Therefore, the defendant's challenge to the death penalty statute as articulated above is DENIED.

The defendant next contests the constitutionality of the death penalty statute based on the alleged failure of the statute to provide for any consideration of mercy. The identical issue was squarely addressed by this Court in State v. Ferguson, Del.Super., Cr. A. No. IN91-10-0576, Gebelein, J., 1995 WL 413269 (Apr. 7, 1995) (Mem.Op.) (discussing the merits of the argument despite the fact that it was procedurally barred under Rule 61).

This Court is confident that the legislature has gone to great pains to draft a statute that complies with the constitutional requirements as discussed above. In dismissing Ferguson's argument, Judge Gebelein pointed out that those requirements include the mandate that the death penalty not be imposed with "unfettered sentencing discretion," nor must it be "meted out arbitrarily and capriciously." Id. (quoting Dougan v. State, Fla.Supr., 595 So.2d 1, 4 (1992)).

In guiding the jury's sentencing deliberations and recommendation in the penalty phase of a capital case, the Court is compelled to give an instruction that precludes the consideration of sentiment, conjecture, sympathy, passion, prejudice, or public feeling as both irrelevant and improper. See California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987). Despite the significance of that instruction, the defendant is given the unlimited opportunity to present other valid mitigating evidence "as to any matter that the Court deems relevant and admissible to the penalty to be imposed." 11 Del.C. § 4209(c). That evidence frequently includes poignant and moving testimony from the defendant's family as to the contribution and value which a defendant may continue to have for his family; medical testimony regarding any psychological and cognitive defects with which a defendant may be afflicted; [FN8] and alcohol and substance abuse by a defendant. [FN9] These are just a few examples of commonly accepted mitigating circumstances which a jury may properly consider.

FN8. For cases acknowledging family background as a valid mitigating circumstance see Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) and Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

FN9. See Fead v. State, Fla.Supr., 512 So.2d 176 (1987) (recognizing alcohol abuse as a valid mitigating circumstance).

In addition to the guidance provided by our own legislature and judiciary, the United States Supreme Court has also frowned upon the consideration of such sentiment by jurors in death penalty proceedings. In Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), the Court held: It is no doubt constitutionally permissible, if not constitutionally required, for the State to insist that "the individualized assessment of the appropriateness of the death penalty [be] a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence."... It would be very difficult to reconcile a rule allowing the fate of a defendant to turn on the vagaries of particular jurors' emotional sensitivities with our longstanding recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary. At the very least, nothing ... prevents the State from attempting to ensure reliability and nonarbitrariness by requiring that the jury consider and give effect to the defendant's mitigating evidence in the form of a "reasoned moral response," rather than an emotional one.

The State must not cut off full and fair consideration of mitigating evidence; but it need not grant the jury the choice to make the sentencing decision according to its own whims or caprice. Id. at 492-93, 110 S.Ct. at 1262-63 (citations omitted). To the extent that the jury desires to express its compassion for the defendant, it does so in its balancing of the aggravating and mitigating circumstances, and in its ultimate recommendation for a life sentence. Nothing more is required in order to achieve the defendant's goal of persuading the jury that it should be merciful to the defendant and reject a sentence of death. Therefore, the defendant's final challenge to the death penalty statute is DENIED.

III. Conclusion

For the foregoing reasons the defendant's Motion to Strike the Death Penalty as a potential punishment in this case is hereby DENIED.

IT IS SO ORDERED.

Steckel v. Carroll, Not Reported in F.Supp.2d, 2004 WL 825302 (Del. 2004) (Habeas).

FARNAN, J.
Presently before the Court is a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (D.I.2) filed by Petitioner Brian D. Steckel, through his counsel, John P. Deckers, Esquire. For the reasons set forth below, Petitioner's Section 2254 Petition will be dismissed and the Writ of Habeas Corpus will be denied.

BACKGROUND

In September 1994, Petitioner was indicted by a grand jury on multiple counts of first degree murder and additional related offenses arising from the September 2, 1994 killing of Sandra Long. In October 1996, Petitioner, represented by Jerome M. Capone, Esquire and Joseph A. Gabay, Esquire, was tried before a jury. The evidence adduced at trial demonstrated that Petitioner met Ms. Long approximately one week before the murder. Petitioner stayed occasionally with Ms. Long's neighbors, Tammy and Robert Johnson. Petitioner witnessed a verbal dispute between Ms. Long and Mrs. Johnson, after which he commented, "[I] should rape the bitch." (Steckel I, A35-A38, B59-B61). [FN1]

FN1. The designations "A" and "B" refer to the appendices to the opening and answering briefs filed by Petitioner and the State, respectively, in Steckel v. State, 711 A.2d 5 (Del.1998) (Nos. 27 & 45, 1997) (Steckel I ) and Steckel v. State, 795 A.2d 651 (Del.2002) (No. 473, 2001) (Steckel III ).

On the day of Ms. Long's murder, Petitioner gained access to her Driftwood Club Apartment by asking her if he could use her telephone. (Steckel I, B3). Once inside, Petitioner pretended to use the phone, but unplugged it from the wall. (Steckel I, B64-B65). Petitioner then demanded sexual favors from Ms. Long, and she refused. Petitioner beat Ms. Long and threw her onto a couch pinning her beneath him. (Steckel I, B15-B18). During the struggle, Ms. Long bit Petitioner's finger causing it to bleed. (Steckel I, B6).

Petitioner then attempted to strangle Ms. Long with a pair of nylons which he brought with him. When his attempts to strangle her with the nylons failed, Petitioner grabbed a sock and continued to strangle her with the sock. (Steckel I, B8, B79). Ms. Long eventually fell unconscious, and while unconscious Petitioner sexually assaulted her, first using a screw-driver he brought with him, and then by raping her anally. (Steckel I, B1-B26, B80). Ms. Long remained unconscious while Petitioner dragged her to the bedroom and set the bed on fire using a black lighter which he had brought with him. Petitioner also set fire to the curtain in Ms. Long's bathroom. (Steckel I, B1-B26, B62-B66).

After setting the fires, Petitioner departed to have a few beers with a former coworker, Larry Day. Petitioner drove to the Day's residence during lunch time. Although Mr. Day came home for lunch, he returned to work leaving Petitioner alone with Mrs. Day.

Petitioner then asked Mrs. Day to drive him to a liquor store to purchase beer. The route Mrs. Day took to the liquor store went past the now burning apartment of Ms. Long. Upon passing the apartment, Petitioner became visibly angry and slouched down in his seat. Petitioner asked Mrs. Day why she went this way, and Mrs. Day said, "What's the matter with you, you're acting like you killed someone."

Petitioner then denied killing anyone and instructed Mrs. Day to proceed to the liquor store. While driving, Mrs. Day noticed that Petitioner's finger was bleeding, but she dismissed the wound. After drinking several beers at the Day's home, Petitioner requested another ride from Mrs. Day, who dropped him off at a convenience store on Lancaster Avenue. (Steckel I, A45-A50).

In the meantime, police, firefighters and passers-by responded to Ms. Long's burning apartment building. Two men, Johnny Hall and Lane Randolph, who worked as tree climbers, were driving past the apartments and stopped to render assistance. When they approached the building, they heard Ms. Long, who had regained consciousness, screaming for help. The gentlemen tried to extricate Ms. Long from the building, grasping her arm briefly, but the temperatures and smoke from the fire prevented them from completing the rescue. (Steckel I, A28-A34, B55-B56, B65-B66). Ms. Long died in her apartment and her body was badly burned. (Steckel I, A30, B57-B58).

Later the same day, the News Journal received an anonymous phone call from a male who identified himself as the "Driftwood Killer." The man named his next victim as Susan Gell. The News Journal contacted the police, and the police brought Ms. Gell into protective custody. (Steckel I, A51-A52). Ms. Gell had previously reported to the police that she had been receiving harassing phone calls with a "very lurid, very sexual" content. (Steckel I, A27). The authorities had traced these calls to Petitioner.

Based on the phone calls to the News Journal and the connection to Ms. Gell, the authorities began to suspect Petitioner of Ms. Long's murder. Petitioner was arrested in September in connection with an outstanding harassment warrant for the phone calls to Ms. Gell. (Steckel I, B51-B54). Petitioner was visibly intoxicated upon his arrest and agitated, so the police did not question him immediately. (Steckel I, B67-B68).

When Petitioner awoke the next morning, he asked police, "So I killed her?" (Steckel I, A63). The police advised Petitioner of his Miranda rights and offered him breakfast. (Steckel I, A62-A63, B75). Petitioner waived his rights and was then interviewed by the police. During the interview, Petitioner confessed in detail to his crimes against Ms. Long. (Steckel I, B1-B26).

Petitioner recounted his attempts to strangle Ms. Long, his rape of Ms. Long and the fires he set. Petitioner told police he had taken the nylons, screw driver and lighter with him for use in the attack. Petitioner also told police that he discarded the screwdriver in a nearby dumpster. Petitioner further confessed to harassing Ms. Gell and calling the News Journal and threatening Ms. Gell.

With Petitioner's permission, he was taken to Dr. Martin W. Scanlon, D.D.S., a forensic dentist who examined the wounds on Petitioner's finger. Doctor Scanlon opined that the wound had been caused within 24 hours by Ms. Long's teeth. (Steckel I, A56-58, B76). Although some portions of Petitioner's confession lacked credibility, many of the details were confirmed by subsequent investigation by the police, including the autopsy of Ms. Long, the fire department's discovery of the points of origin of the fire, DNA testing of blood found on Ms. Long's apartment door, which matched Petitioner, and the discovery of the nylons, lighter and screwdriver used in the attack. (Steckel I, A52-54, B52, B60-69, B72-74, B80).

The jury convicted Petitioner of three counts of Murder First Degree, two counts of Burglary Second Degree, one count of Unlawful Sexual Penetration First Degree, one count of Unlawful Sexual Intercourse First Degree, one count of Arson First Degree and one count of Aggravated Harassment. Following a penalty hearing, Defendant was sentenced to death. On appeal, the Delaware Supreme Court affirmed Petitioner's convictions and sentences. Steckel v. State, 711 A.2d 5 (Del.1998) (Nos. 27 & 45, 1997) (Steckel I ).

In December 1998, Petitioner moved for post-conviction relief alleging ineffective assistance of counsel as a result of counsel's alleged failure to present mitigating evidence of Defendant's personality disorder during the penalty phase of trial. The Delaware Superior Court held two evidentiary hearings in December 2000 and January 2001. Thereafter, the Delaware Superior Court denied Petitioner's motion for post-conviction relief, and Petitioner appealed. State v. Steckel, 2001 WL 1486165 (Del.Super.Aug. 31, 2001) (No. 9409002147) (Steckel II ) On appeal, the Delaware Supreme Court affirmed the superior court's decision. Steckel v. State, 795 A.2d 651 (Del.2002) (No. 473, 2001) (Steckel III ).

In his current Petition for federal habeas relief, Petitioner raises the same claim he raised in the state courts on post-conviction relief. Specifically, Petitioner contends that trial counsel was ineffective for failing to recognize, investigate and present, as a mitigating factor, evidence that Petitioner suffered from a narcissistic personality disorder which caused Petitioner to falsely exaggerate his culpability and propensities for criminal conduct. (D.I. 2 at 5).

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I. Petitioner's Claim Of Ineffective Assistance Of Trial Counsel

In seeking federal habeas relief, Petitioner contends that his trial counsel was ineffective for failing to recognize, investigate and present mitigating evidence demonstrating that Petitioner suffered from a narcissistic personality disorder. Petitioner contends that this personality disorder made him unable to distinguish between fantasy and reality and may have caused Petitioner to exaggerate the severity of his conduct.

Stated another way, Petitioner's personality disorder caused him to admit to more heinous acts than actually occurred, and such evidence may have had an aggravating impact on his sentence which would have been negated by evidence of his personality disorder. Although trial counsel had several psychiatrists and psychologists examine Petitioner, Petitioner contends that trial counsel was ineffective for failing to bring Petitioner's exaggerations and inconsistencies to the attention of these mental health professionals, thereby preventing them from diagnosing Petitioner's narcissistic personality disorder.

Petitioner presented this claim to the Delaware Superior Court and the Delaware Supreme Court in the context of post-conviction proceedings, and therefore, Petitioner has exhausted his state remedies. Smith v. Digmon, 434 U.S. 332 (1978). Evaluating Petitioner's claim in light of the standards enunciated in Strickland v. Washington, 466 U.S. 668 (1984), the Delaware state courts concluded that trial counsel's decision to forgo presenting mitigating circumstances based on Petitioner's tendency to exaggerate his criminal behavior was not objectively unreasonable.

The Delaware state courts also concluded that trial counsel was not ineffective for failing to recognize Petitioner's exaggerations as symptomatic of an underlying disorder, given Petitioner's uncooperative behavior and his statements to the effect that he was playing a game with the police. As the Delaware Superior Court explained:

Counsel believed that to fully play before the jury Defendant's exaggerations would only hurt the Defendant's chance of a successful mitigation case and would not have helped save their client's life.... When you place the Defendant's gamesmanship in context with the significant interaction by counsel with the Defendant it is clearly reasonable for the attorneys to believe the Defendant was generally being his uncooperative and aggravating self.

The decision not to place this conduct before the jury was not only reasonable but the right decision. It would have hurt not helped Defendant's chances of success by portraying him as an even more dangerous individual. The Court finds that a reasonable basis existed for trial counsel's tactical decision in this area. Steckel II, 2000 WL 1486165, The Superior Court also concluded that counsel was not obligated to find additional mental health experts to explain Petitioner's conduct, because the mental health professionals already obtained by trial counsel interviewed Defendant at length and explained Defendant's conduct as resulting from Attention Deficit Disorder, Substance Abuse, and Antisocial Personality Disorder.

Affirming the Delaware Superior Court, the Delaware Supreme Court stated: Trial counsel's decision to emphasize Steckel's antisocial personality, partially resulting from his background, with supporting expert testimony, was a strategic choice which clearly had a reasonable basis. We agree with the Superior Court that it would not have helped Steckel's cause to have portrayed him as a more dangerous individual because of the narcissistic overlay on his Antisocial Personality Disorder. Steckel III, 795 A.2d at 653-654.

Further, both the Delaware Superior Court and the Delaware Supreme Court concluded that even if trial counsel acted unreasonably, Defendant could not establish prejudice under Strickland. Given the weight of the evidence in the case as well as the brutal nature of the killing involved, the state courts concluded that there was no reasonable likelihood that the outcome of the penalty phase would have been different if the jury had been presented with evidence that Petitioner had a narcissistic personality disorder. As the Delaware Supreme Court stated, "Merely to characterize Steckel as vain and selfish would distract little from the depiction of him gleaned from the circumstances of the offense." Steckel III, 795 A.2d at 653.

Reviewing the decisions of the Delaware state courts in light of the applicable standard of review, the Court concludes that the decisions of the Delaware state courts were consistent with the applicable law, involved reasonable applications of the Supreme Court's decision in Strickland and were reasonable determinations in light of the evidence presented to the state courts.

The Court further agrees with the conclusions of the Delaware state courts that the performance of Petitioner's trial counsel was not objectively unreasonable. Petitioner's trial counsel were both experienced criminal defense attorneys, and it was not unreasonable for them to have attributed Plaintiff's exaggerations to the disorders already identified by the prominent and well-experienced mental health experts they retained.

As for trial counsel's failure to provide these experts with Petitioner's exaggerated and false statements to the police, the Court further concludes that the conduct of trial counsel was not unreasonable where, as here, the evidence demonstrated that the mental health professionals hired by trial counsel were well-experienced, interviewed

Petitioner extensively, performed their own testing on Petitioner, did not request Petitioner's statements to the police and indicated that Petitioner's statements to the police were not needed. Rompilla v. Horn, 355 F.3d 233, 253-254 (3d Cir.2004) (holding that counsel did not act unreasonably in failing to provide certain evidence to mental health experts where experts hired were highly qualified, performed their own tests and did not ask for such information and concluding that counsel's deference to expert was within the range of reasonable professional assistance); Card v. Dugger, 911 F.2d 1494, 1512 (11th Cir.1990) (same). As for the second prong of Strickland, the Court also agrees with the Delaware state courts that Petitioner did not establish a reasonable likelihood that the outcome of the penalty phase would have been different if evidence of his narcissistic personality disorder had been presented to the jury.

Although Dr. O'Brien testified during Petitioner's state post-conviction proceedings, that such evidence would have made a difference in the penalty phase, Dr. O'Brien also opined that in addition to a narcissistic personality disorder, Petitioner suffered from antisocial personality disorder and displayed intermittent explosive disorder. (Steckel III, A120).

In the Court's view, these diagnoses would have done little to convince the jury that Defendant should be spared from the death penalty. Indeed, characterizing Defendant as having "discrete episodes of [the] failure to resist aggressive impulses" and aggressiveness which is "grossly out of proportion to any provocation or precipitating psychosocial stressor" (Steckel III, B8-9) would likely have left the jury with the image of an even more dangerous individual. Britz v. Cowan, 192 F.3d 1101, 1104 (7th Cir.1999) ("People with his background of antisocial behavior are more likely to commit murder than other people, but this does not make them attractive candidates for lenity, rather, it underscores their dangerousness.").

As the Delaware Supreme Court noted, Petitioner's "gross exaggeration of his conduct, even if born of a narcissistic personality disorder, hardly serves to render him a more sympathetic figure in the eyes of the jury." Steckel III, 795 A.2d at 652-653. In sum, the Court agrees with the decisions of the Delaware state courts and concludes that the opinions of the Delaware state courts were consistent with the evidence and applicable legal principles. Accordingly, the Court will dismiss the Petition and deny the Writ of Habeas Corpus requested by Petitioner.

II. Certificate of Appealability

After its review of Petitioner's claim, the Court must determine whether a certificate of appealability should issue. See Third Circuit Local Appellate Rule 22.2. The Court may issue a certificate of appealability only if Petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Under this standard, Petitioner must "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

In this case, the Court has concluded that Petitioner is not entitled to federal habeas relief. The Court is persuaded that reasonable jurists would not debate the correctness of its assessments. Because the Court concludes that Petitioner has failed to make a substantial showing of the denial of a constitutional right, the Court declines to issue a certificate of appealability.

CONCLUSION

For the reasons discussed, the Court will dismiss the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Petitioner Brian D. Steckel and deny the Writ of Habeas Corpus sought by Petitioner. In addition, the Court will not issue a certificate of appealability. An appropriate Order will be entered.

ORDER - At Wilmington, this 13th day of April 2004, for the reasons set forth in the Opinion issued this date; IT IS HEREBY ORDERED that:

1. Petitioner Brian D. Steckel's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (D.I.2) is DISMISSED and the Writ Of Habeas Corpus is DENIED.

2. For the reasons provided in the Court's Opinion, the Court declines to issue a certificate of appealability under 28 U.S.C. § 2253(c)(2).

  

Brian David Steckel

The victim, Sandra Lee Long