Opinion
I.D. No. 0002006278, I.D. No. 0002004767
Date: October 3, 2001
Appearances:
Robert O'Neill, Esquire, John Garey, Esquire, and Martin O'Connor, Esquire, Deputy Attorneys General, Dover, Delaware, for the State.
Lloyd Schmid, Esquire, and Paul Swierzbinski, Esquire, Dover, Delaware, Attorneys for Defendant Adam Norcross.
Andrew J. Witherell, Esquire, Wilmington, Delaware, and Kevin O'Connell, Esquire, Wilmington, Delaware, Attorneys for Defendant Ralph E. Swan.
Sentencing Opinion
Defendants Adam Norcross and Ralph Swan were convicted in separate trials of three counts of First Degree Murder for the death of Kenneth E. Warren. They were found guilty of one count of intentional murder in violation of 11 Del. C. § 636(a)(1) and two counts of felony murder in violation of 11 Del. C. § 636(a)(6) for killing Warren during the commission of Robbery First Degree and Burglary First Degree. Delaware law allows multiple murder convictions even though there is only one deceased victim.
Chao v. State, Del. Supr. 604 A.2d 1351, 1360-1361 (1992).
The Delaware capital punishment statute, 11 Del. C. § 4209, provides that a defendant is eligible for capital punishment when at least one of twenty-two specified aggravating circumstances is established beyond a reasonable doubt. Included among these is that the murder was committed "while the defendant was engaged in the commission of . . . any degree of . . . robbery . . . [or] burglary. . . ." In addition, § 4209(e)(2) provides that whenever a defendant "has committed a murder in the first degree in violation of any provision of § 636(a)(2)-(7) . . . that conviction shall establish the existence of a statutory aggravating circumstance." Defendants' convictions of First Degree Murder on Counts 3 and 5 of the indictments therefore established their eligibility for the death sentence.
Section 4209(e)(1)j.
The death sentence shall be imposed by the Court if it finds:
by a preponderance of the evidence, after weighing all relevant evidence in aggravation or mitigation which bears on the particular circumstances or details of the commission of the offense and the character and propensities of the offender, that the aggravating circumstances found by the Court to exist outweigh the mitigating circumstances found by the Court to exist.
Section 4209(d)(1)b.
If the Court does not so find, then the Court must impose a sentence of life in prison "without benefit of probation or parole or any other reduction."
The Court's determination of this issue is preceded by a hearing involving the same jury that convicted the defendant. This hearing is a bench trial with an advisory jury, since the jury is asked only to recommend a finding as to whether the aggravating circumstances outweigh the mitigating circumstances. Moreover, the jury's recommendation need not be unanimous. Instead, the jury reports its final vote on whether the aggravating circumstances outweigh the mitigating circumstances.
The Norcross jury recommended a finding that the aggravating circumstances outweighed the mitigating circumstances by a ten to two vote on all three counts of First Degree Murder. The Swan jury made the same recommendation by a seven to five vote.
These recommendations are not binding on the Court. The statute requires, however, that the Court consider the jury's recommendation in arriving at its sentencing decision.
Stevenson v. State, Del. Supr., 709 A.2d 619 (1998); at 23; Lawrie v. State, Del. Supr., 643 A.2d 1336, 1345 (1994); Gattis v. State, Del. Supr., 637 A.2d 808, 822 (1994); Wright v. State, Del. Supr., 633 A.2d 329, 335 (1993); State v. Garden, Del. Super., I.D. No. 9912015068, Babiarz, J. (March 15, 2001) (Sentencing Decision).
The Court is grateful to the 24 persons who deliberated on the Norcross and Swan juries. It is abundantly clear that they took their duties seriously and that their verdicts and recommendations were reached after a conscientious consideration of the issues. Their sentencing recommendations are an important factor in the Court's final decision.
THE SENTENCING DECISION
The Delaware capital punishment statute requires the Court to "consider all relevant evidence in aggravation and mitigation which bears on the particular circumstances or details of the commission of the offense and the character and propensities of the offender" in determining the existence of particular aggravating or mitigating factors. Aggravating circumstances are those which make the imposition of the death penalty appropriate. Mitigating circumstances are those which make the imposition of a sentence of life in prison without probation, parole or other sentence reduction appropriate.
Section 4209(d)(3)b.
Statutory aggravating factors must be proven beyond a reasonable doubt. Non-statutory aggravating factors and mitigating factors must be proven by a preponderance of the evidence. The weighing of all factors is governed by a preponderance of the evidence standard. All of the findings of this Court are made in accordance with these standards.
State v. Garden, supra.
1. The Crime.
Kenneth Warren was murdered in November of 1996, but the crime was not solved until February of 2000. The passage of time has obscured many of the details of the crime.
However, this much is clear: On November 4, 1996, at about eight o'clock in the evening, as Kenneth Warren sat down to eat a sandwich at his kitchen counter, with his wife and young son seated on a nearby sofa, two masked, armed men, bent on robbery, smashed through a patio door, struggled with Warren and shot him to death. Those men were Adam Norcross and Ralph Swan.
Warren was shot four times. Two hollow-point bullets fired from a .357 magnum revolver coursed across his upper back just under the skin, causing superficial injuries. A third bullet, fired close enough to deposit gunshot residue on Warren's skin, entered his neck just behind the left ear and exited the back of the neck, also causing only a superficial wound.
The fourth bullet, a .40 caliber hollow point, was fired from a semi-automatic pistol pressed against the top of the victim's head. It killed him instantly.
It is impossible to know which defendant fired the fatal shot. Norcross and Swan were both masked and are of similar stature. The only eyewitness, the victim's wife, understandably could not identify which man inflicted the fatal wound and was unable to provide any meaningful observations on this issue.
The only other evidence pertaining to this question is from Norcross himself, who made statements to the following people: a co-worker on the day after the shooting, a girlfriend several days after that, his wife eight or nine months later and the police after his arrest. In two of these statements, including the one to the police, Norcross said Swan fired the killing shot; in the other two he said he did. One of these versions is true, but neither is credible. His statements blaming Swan are obviously self-serving; his claims of responsibility may only be criminal braggadocio.
But it doesn't matter who fired the fatal shot. The evidence leaves no doubt that both defendants were acting in concert with murderous intent when Warren was killed. The first three shots that struck Warren were all directed at vital areas of his body and would have inflicted mortal wounds had they entered the victim's body even slightly to the right or left as the case may be. It was pure chance that he was not killed by one of those bullets.
Kenneth Warren was not given a chance to live. Neither defendant deserves a chance to avoid capital punishment simply because the author of the fatal shot cannot be identified.
Both defendants are equally, directly and fully culpable for the murder of Kenneth Warren.
Unquestionably, the murder took place during the commission of robbery and burglary. The juries so found and the Court so finds. These bland findings, however, mask the true horror of the crime. Moments before his death, Kenneth Warren was enjoying an everyday moment of family life, the true value of which is brought into sharp focus by the violence of its termination.
It is worth taking the time to describe briefly the mundane events of the two hours or so preceding Kenneth Warren's death. Kenneth called home sometime before six o'clock to tell his wife Tina that he would not be home from work until after seven. Tina had an aerobics class at 6:30, so she called Kenneth's mother, Lillian Warren, to babysit their nineteen-month old son, Dustin. Lillian arrived around 6:30 and Tina left. Lillian fed and tended to Dustin until around 7:15 when Kenneth came home. He played with Dustin and conversed with his mother until Tina returned, probably around ten minutes to eight. The three adults spoke among themselves for a few minutes and then Lillian left. Tina wanted to watch a TV show, "Melrose Place," and Lillian didn't. Tina got herself a bowl of cereal and sat down in front of the TV with Dustin. Kenneth made himself a sandwich and sat down at the kitchen counter with a magazine. In a moment he would be dead from a gunshot to the head.
The last two hours of family life before Kenneth's murder can only be described as ordinary. All of us have experienced similar hours many times over. But in retrospect those hours were priceless. What Lillian has left is the memory of a casual good-by to her son, the last time she would speak to him. Tina has the memory of trying to rouse her husband from where he had fallen on the kitchen floor. A pool of blood surrounded his head; a piece of his sandwich was still in his mouth. The image haunts her to this day.
The home is a place of safety and security. It is a place where ordinary people should be able to enjoy ordinary things without fear of harm from intruders. The deadly intrusion of Norcross and Swan into the home and family of Kenneth Warren is an aggravating factor of the first magnitude. Put more bluntly, it is a good reason for the imposition of the death penalty.
This already weighty factor becomes heavier still when one understands that this is not a case where burglars unexpectedly found someone at home. The defendants wore masks and carried pistols in obvious anticipation of encountering persons. They selected a residence as their target. Before breaking in, they stood in the dark on an outside deck looking into the lighted kitchen-family room where the Warrens were. They saw Kenneth sitting at the counter and Tina watching TV with Dustin. And then they struck their unsuspecting victims, like jackals lurking at a water hole.
The Court does not view this as an ordinary crime of violence, if there be such a thing.
Nor is it a mere "robbery gone bad," as Norcross described it in his statements. This crime was a ruthless act of human predation.
Kenneth Warren was murdered in front of his wife and young son. His wife will carry the terror of that moment with her as long as she lives. His son was too young to have any memory of the event, but he will learn as he grows older that he was present when his father was brutally murdered in the family home. He will surely suffer from that knowledge. Lillian Warren was with her son minutes before he died. Her grief is still patent. The Court heard significant testimony from Kenneth Warren's family, friends and members of his community. It is manifest from this testimony that, nearly five years after his death, the pain of his loss remains acute. The impact of Kenneth Warren's death on those around him is an aggravating circumstance, particularly since the defendants knew they were destroying a family when they murdered him.
One further comment is necessary. Kenneth Warren was 27 years old when he died.
He was a young man but had developed an exceptional reputation for honesty, integrity and hard work. He had become a valued member of the community and had great promise. Norcross and Swan could not have known this when they killed him but they are nevertheless fully responsible for society's loss. As the Court has written before "if a tortfeasor must take his victim as he finds him, so too must a murderer." Kenneth Warren's high regard in the community is also an aggravating factor.
State v. Govan, Del. Super., I.D. No. 92010166, Babiarz, J. (September 7, 1993) Sentencing Decision at 12.
2. The Defendants
Adam Norcross. Adam Norcross admits that he is a criminal and even brags about it. In fact his attitude about his criminality is worse than his criminal record. Norcross has two burglary convictions. In 1993, he burglarized a house in Florida and in 1997, a National Guard Armory in Middletown, Delaware. He told the same co-worker to whom he admitted involvement in the Warren murder that he burglarized an acquaintance's apartment to obtain the murder weapons. In his post-arrest statement to police he repeatedly said that he loved to break and enter because he got an "adrenaline rush" from being in a place he wasn't supposed to be. One measure of his criminal mentality is that he bragged about being discharged from the Marine Corps because he shot a superior officer in the leg. In fact, he was bounced from the Corps for theft. Norcross's admitted and unapologetic criminality is an aggravating circumstance.
Although none of Norcross's admitted crimes involved violence, the evidence supports a finding that he was disposed toward violence. As noted, he pumped up his Marine Corps discharge by saying that it was due to a shooting. In addition, some of his girlfriends testified to threats of violence or acts of minor force. Finally, all persons to whom he admitted involvement in the Warren homicide were threatened with harm if they went to the police. This too is an aggravating circumstance.
During allocution, Norcross expressed remorse for his crime, saying that because of "[his] actions . . . there's another young boy out there without his father." Two witnesses testified about Norcross crying in reference to the crime. While he may have just been upset about his criminal liability, the Court will assume that he was genuinely remorseful at having caused the death of another person.
On the other hand, Norcross was heard by one witness to say that he "dropped" the victim like a "sack of potatoes." Norcross's wife, whom he did not meet or marry until several months after the murder, overheard Norcross and Swan reminiscing in a light hearted fashion about the murder. Other witnesses heard Norcross boast that he would not be caught.
In sum, the Court believes that Norcross is presently remorseful and had been episodically remorseful in the past. However, his remorse is a mitigating factor of minor significance because of his prior boastfulness about the murder.
Norcross cites his poor upbringing as a mitigating factor. He was born out of wedlock to an eighteen-year-old mother who has never disclosed the identity of his father to him. His mother married the man whose name the defendant bears when he was three and divorced him four years later. She subsequently enlisted in the army and married a second husband ten years her junior. After that marriage ended, she remarried her first husband.
Norcross's childhood was nomadic. He and his mother lived in Delaware, Massachusetts, Germany, Virginia and Florida. When his mother was unable to take care of him, he lived with aunts and uncles at various locations. He also spent time in Virginia in a juvenile reformatory.
Norcross reports that he suffered physical and sexual abuse at the hands of his mother's second husband and also while he was at the Virginia juvenile facility. At age 16, while living in Florida, an older woman, a friend of his mother, induced him into a sexual relationship which resulted in her pregnancy. Norcross's mother blamed him for the pregnancy and treated him like an outcast, while doting on his and her friend's child.
Norcross's childhood was rootless and unstable. He was subjected to episodes of physical, sexual and emotional abuse and was overseen by a mother who showed little concern for his welfare. However, these facts do not explain Warren's murder or mitigate the seriousness of the crime.
While living in Florida as a teenager, Norcross became close with the family of a friend. Members of that family testified that Norcross was polite, friendly and warm. They welcomed him almost as a member of their family. His relationship with them continued into adulthood. The Court also heard testimony from other Norcross acquaintances that he was friendly and helpful. This positive aspect to his character is a mitigating circumstance.
Norcross was almost always employed as an adult. This willingness to be gainfully employed is a mitigating factor.
When Norcross was 22, he enlisted in the Marine Corps. Less than a year later, he was discharged from the corps "under other than honorable conditions" for theft of supplies.
One of the questions on the final evaluation form asked for a summary of Norcross's rehabilitative potential. Gunnery Sergeant Paul H. Booker, who filled out and signed the form, answered this question as follows: "I feel anyone can change his ways, but a man without a conscience is potentially dangerous." At the Norcross penalty hearing, Booker's opinion was criticized because he had known Norcross for only a few months and had no specific recollection of him when he testified. But the shadow of these criticisms fades away in the bright light of one simple fact: Gunnery Sergeant Paul H. Booker, U.S.M.C.(ret.) was right.
Ralph Swan. Ralph Swan's criminal history is short but significant. In 1991, in Texas, he pleaded guilty to two felonies, possession of a deadly weapon on school grounds and armed robbery. The weapons charge is of little consequence. Swan had a butterfly knife in his pocket while driving through a school parking lot. The car he was in was stopped because it was stolen.
The armed robbery is a different matter. In this crime, Swan and two confederates invaded a computer business, bound and assaulted the employees and stole over $100,000 in computer equipment. Swan was not the ringleader, but when he was caught he refused to identify the others involved in the crime.
Swan was sentenced to 12 years in prison but was paroled after serving five years.
He returned to Delaware in May of 1996 and participated in the home invasion burglary during which Kenneth Warren was killed in November. Obviously, his prison term in Texas taught him no lesson. Swan's Texas crimes and the close proximity of the Warren murder to his release from prison are aggravating factors.
Unlike Norcross, Swan was not charged with any crimes after Warren's murder. However, when his apartment in Elkton, Maryland, was searched after his arrest in February 2000, police found a briefcase containing a mask, a .32-caliber revolver and ammunition.
The mask was similar to the one he wore in the Warren crime. As a convicted felon, he could have been charged for possession of a firearm under Maryland law. The presence of the mask, gun and ammunition suggests that he was contemplating further criminal activity. The Court finds this to be an aggravating circumstance.
Title 27 M.D. Code § 291A.
Swan made no statements to the police and did not exercise his right to allocution at his penalty hearing. There is thus no direct evidence of remorse. However, the Court does have Norcross's wife's testimony concerning the conversation she overheard between Norcross and Swan. As stated previously, it was a lighthearted reminiscence that contained no expression of regret. This lack of remorse is an aggravating factor.
Like Norcross, Swan contends that his poor upbringing is a mitigating factor. He too was born out of wedlock, but his father did not abandon him. Although Swan was in his mother's custody, his father provided support and exercised his right to visitation. Swan had a good family on his father's side.
Evidence of the specific circumstances of Swan's childhood is scant because his mother disappeared with him when he was 11. The next information about Swan relates to his arrest in Texas at age 20. Because of this limited information, the Court cannot conclude that Swan's upbringing was so bad as to constitute a mitigating circumstance.
One thing does stand out. The Court heard testimony from Swan's father, aunts and cousins. They are good, decent people who are deeply grieved by his present circumstances.
In 1995, Swan contacted them from the Texas prison and came to reside with his father in Delaware after his parole. He has maintained contact with his family and his relationship with them is one of mutual affection. This is the good side of Ralph Swan, which the Court finds to be a mitigating circumstance.
Finally, the Court notes that in both Texas and Delaware, Swan has been a model prisoner. His ability to function well in prison and even contribute to prison welfare is a mitigating circumstance.
CONCLUSION
The circumstances of the crime and the criminality of the defendants are aggravating circumstances of overwhelming weight. They are not counterbalanced by Norcross's ability to develop non-criminal friendships and to hold a job or by the relationship Swan has with his father's family and his ability to function well in prison.
The Court will impose sentences of death.