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Outten v. Kearney

September 28, 2006

JACK FOSTER OUTTEN, JR.
v.
RICK KEARNEY, WARDEN, SUSSEX CORRECTIONAL INSTITUTE; ATTORNEY GENERAL OF THE STATE OF DELAWARE JACK F. OUTTEN, JR., APPELLANT



Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 98-cv-00785) District Judge: Honorable Sue L. Robinson.

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Argued July 27, 2006

Before: RENDELL, AMBRO and FUENTES, Circuit Judges.

OPINION OF THE COURT

Jack Foster Outten, Jr., was convicted by a Delaware jury of, inter alia, first-degree murder and sentenced to death. His direct appeals and post-conviction claims in state court were unsuccessful. Outten then filed in federal court a 28 U.S.C. § 2254 petition for a writ of habeas corpus, which the United States District Court for the District of Delaware denied. We conclude that trial counsel's failure to conduct a reasonable investigation of Outten's background in anticipation of his capital sentencing violated his Sixth Amendment right to effective assistance of counsel. Thus, we reverse and remand this case for resentencing.

I. Factual and Procedural Background

A. The Murder of Willie Mannon

We recite only briefly the pertinent facts of this case as set forth by the District Court, Outten v. Snyder, Civ. No. 98-785-SLR, 2004 U.S. Dist. LEXIS 5546 (D. Del. Mar. 31, 2004) (Outten IV), and the Delaware Superior Court, State v. Outten, No. C.R.A. IN-92-01-1144, 1997 WL 855718 (Del. Super. Ct. Dec. 22, 1997) (Outten II). (All city or town references are in Delaware.) Outten, his cousins Steven and Nelson Shelton, and Nelson's girlfriend, Christina Gibbons, spent the afternoon of January 11, 1992, drinking beer at Nelson and Gibbons's home in Newark. After consuming approximately one and one-half cases of beer, the four drove to Clemente's Bus Stop, a local tavern located on Route 13 south of Wilmington.

After separating for a short time, Outten, the Sheltons, and Gibbons eventually reconvened and went to Hamill's Pub in Elsmere, and then to Fat Boys Bar in New Castle. At Fat Boys Bar, the three men began playing pool while Gibbons sat at the bar counter alone. She began conversing and drinking with sixty-two year old Wilson "Willie" Mannon, who had arrived at the bar earlier that same day. Ultimately, Mannon left with Gibbons and the three men.

Mannon's body was discovered along a road in a deserted area of East Wilmington at approximately 11:00 a.m. on January 12, 1992. He was found lying on his back with his legs crossed and the top of his head shattered. Mannon's pockets were turned inside-out, and loose change, his empty wallet, and his identification cards were scattered nearby. A broken ballpeen hammer handle rested a few feet away from his body and the head of that hammer was located behind a nearby fence along the road.

Nelson Shelton and Gibbons were stopped by New Castle County police later that morning. The officers sought to question Nelson on an unrelated charge. He was taken to police headquarters and found to be in possession of two gold rings that were Mannon's. His winter jacket also appeared to be stained with blood.

Gibbons accompanied Nelson to the police station. While there, she provided statements to New Castle County and Wilmington law enforcement officers implicating Outten and Steven Shelton in the robbery and murder of Mannon. Gibbons recounted that she had been at a bar the previous night with Outten and the Shelton brothers, and that, at the end of the night, the four of them left in Nelson's car with an "older man" named Willie. From the bar, they drove to a "boat yard," where the older man was beaten with a hammer and an object she thought was a sink. According to Gibbons, Outten struck the man with the sink and Steven kicked him. She was adamant that Nelson, though present, was not involved. Gibbons also told police that the sink was discarded along Interstate 95 after the murder.

The next day, January 13, 1992, Gibbons spoke about Mannon's murder to her social worker, Sandra Nyce. The story she recounted to Nyce differed significantly from her prior statements to the police. Indeed, she implicated Outten and both Shelton brothers in the beating and murder, telling Nyce that all three men had taken turns hitting Mannon and that they had killed a "nice old man."

B. The Trial Court Proceedings

Acting quickly, on January 21, 1992, a Delaware grand jury indicted Outten and the Sheltons for Mannon's death. They were charged with, inter alia, first-degree murder, first-degree conspiracy, first-degree robbery, and possession of a deadly weapon during the commission of a felony. The defendants were tried together in the Delaware Superior Court in New Castle County in January--February 1993. Gibbons, who in addition to providing multiple contradictory accounts of the murder during the investigation gave conflicting testimony at trial, was the State's principal witness.*fn1 After deliberating for two days, the jury convicted the defendants of all offenses as charged.

A penalty hearing was held on March 3--5, 1993. Counsel for both Outten and Steven Shelton made opening statements. One of Outten's counsel-there were two*fn2 -told the jury its decision was simple: choose life or death. He also stated that he and his co-counsel were there "to beg for the life of [their] client." Steven's counsel, by contrast, stated, "My client has instructed me to advise you that we will not be begging for his life in this case."

The State then presented evidence of Outten's past criminal history. That evidence included: a house burglary conviction; seven convictions for non-violent crimes including forgery, issuance of a bad check, misdemeanor theft, felony theft, and criminal impersonation; his family court record; and his probation violations.

Thereafter, Outten presented his mitigation case to the jury.*fn3 He called as witnesses his mother (Carol Outten), two sisters (Robin Outten and Amanda Hart), brother (John Outten), friend (Ruperto Sanchez), and a former girlfriend and the mother of two of his children (Karen Julian).

Outten's mother testified first. She described Outten's relationship with his father, Foster Outten, as his father was dying of cancer. Outten II, 1997 WL 855718, at *21. According to Mrs. Outten, Outten had stayed in his parents' home in order to care for his father for the last two years of his life. Id. He continued to assist his father even when he was completely bed-ridden. Id. Mrs. Outten depicted her husband as a "very strict" man who "punished [the] children as he saw fit." Id. She indicated that Outten had "started off in school okay but got into truancy trouble," and only made it to the eleventh grade. Id. Mrs. Outten also discussed her son's criminal history, including his prior convictions for assault. On cross-examination, she confirmed that Outten had physically attacked his sister Amanda. Id.

Outten's sister Robin testified next. She also explained that Outten had cared for his father toward the end of his life. Id. She stated that "Outten was very upset by his father's death and cried like she had never seen before." Id. Robin told the jury that Outten had a child with Karen Julian in 1991, but the baby had died shortly after birth. Id. "[T]his too," she said, "was most upsetting to Outten." Id. On cross-examination, Robin admitted that she had accrued "theft and misdemeanor convictions," and that those crimes "also involv[ed] Outten." Id.

Ruperto Sanchez, a family friend, testified that he observed "Outten being upset when his baby died." Id. He also "mentioned the good relationship Outten had with his father." Id. On cross-examination, Sanchez stated that he had been convicted in 1991 of a misdemeanor offense involving both Robin and Outten. Id.

Amanda Hart, another of Outten's sisters, then testified. "She described . . . [a physical altercation that occurred] in 1989 between Outten and [Karen] Julian." Id. According to Hart, Outten punched her in the eye when she attempted to intercede. Id. An affidavit of probable cause signed by Hart and introduced by the prosecution on cross-examination indicated that Outten had caused damage to her residence as well. Id. Hart stated that there were times that she and Outten had lived together. During those times, Outten was "helpful to her and others," and treated her infant children well. Id. at *22. She also discussed "how Outten took care of his father in the last years of his illness." Id.

Karen Julian then took the stand. She and Outten had lived together for about four-and-a-half years prior to his arrest for the underlying offense. Id. According to Julian, Outten had been working as a roofer, but had been laid off four to six weeks before the murder. Id. She also "told the jury that Outten had not completed an alcoholic rehabilitation program because he would not give the names of others who had broken some rules." Id.

Outten's final witness was his older brother, John. He testified that "[t]heir father became blind in one eye and suffered a speech impediment as a result of [a] mugging" that occurred in 1974. Id. John also told the jury that "Outten seemed to suffer the worst from their father's frustration" with his impaired condition. Id. It was John's opinion that his brother's relationship with their father "caused Outten to start stealing." Id.

Outten also spoke directly to the jury in allocution. He described his family as "close-knit," but did state that he had been "semi-abused." Id. According to Outten, "his father 'chastened' him, making him run away." Id. Outten also reviewed his extensive criminal record, characterizing himself as "mischievous." Id. He "pointed out to the jury that his convictions were for non-violent offenses, such as forgery, theft and criminal mischief." Id. Outten described himself as a "kleptomaniac" and admitted that he drank alcohol and took drugs. Id. He explained that he "had a regular roofing job and started his own company," but "[h]e stole . . . to buy tools needed for [his] work." Id. In closing, Outten told the jury that he was caring, sharing, loving and honest-not cold, calculating, ruthless or heartless. Id. at *23. It was his opinion that "his good qualities outweighed the bad." Id.

Beyond the above recounted testimony, trial counsel did not introduce at the sentencing hearing any additional mitigating evidence or documents (i.e., child protective service records, mental health records, school records). Nor is there any indication that Outten's extensive social or psychiatric history was presented comprehensively by an expert, family member or counsel.

In his closing, the prosecutor remarked:

Another thing that judges, for me, the importance of what you do and what this all means is the remorse that has been shown in this case in the words of Jack Outten in allocution and Steven Shelton in allocution. And they told you or paid lip service that they had concerns for the families of the victim, but what did you hear about their remorse for their acts? What did you hear about that concern for the families of the victim whose life was taken innocently, without any wrong that he caused any of these individuals?

Id. at *45. Outten's counsel did not object to these comments.

Consistent with the state death penalty statute in effect at the time of the sentencing hearing, 11 Del. C. § 4209, the jury unanimously found beyond a reasonable doubt the existence of three aggravating factors: (1) the murder was committed during a robbery, id. § 4209(e)(1)(j), (2) a motive for the murder was pecuniary gain,*fn4 id. § 4209(e)(1)(o), and (3) the victim was over sixty-two years old, id. § 4209(e)(1)(r). Moreover, by a vote of seven to five, the jury found by a preponderance of the evidence that the aggravating circumstances outweighed the mitigating circumstances presented by Outten. As a result, the jury recommended a sentence of death.

In sentencing Outten, the trial judge acknowledged that he had proposed four factors in mitigation: Outten's age, his lack of violent felonies, his family status, and his amenability to lesser sanctions than death. According to the judge, Outten's relative youth (he was thirty) was diminished by his extensive appearances in the criminal justice system. The judge also concluded that Outten's long-standing substance abuse problem and the evidence of alcohol consumption on the evening of the murder were diminished as mitigation by his failure to complete substance abuse programs. The judge did recognize that the father's disability, alcohol abuse, and strictness had a negative effect on Outten. Ultimately, however, the judge independently concluded that the aggravating circumstances outweighed the mitigating circumstances and, on April 30, 1993, sentenced Outten to death for the murder of Mannon. (The jury also found, by a vote of eight to four, that aggravating circumstances outweighed the mitigating circumstances presented by Steven Shelton. The judge independently agreed with the jury's recommendation, sentencing him to death as well.)

C. Outten's Direct Automatic Appeal

Pursuant to 11 Del. C. § 4209(g), an automatic appeal was taken to the Delaware Supreme Court. On appeal, Outten argued that (1) the Superior Court erred by refusing to grant a severance of his trial from that of his co-defendants; (2) the State's use of a peremptory challenge to strike an African-American juror from the jury violated Batson v. Kentucky, 476 U.S. 79 (1986); and (3) the Superior Court erred by not allowing him to introduce extrinsic evidence in support of the credibility of one of his witnesses at trial. Outten v. State, 650 A.2d 1291, 1293 (Del. 1994) (Outten I). The Delaware Supreme Court rejected each of Outten's claims and, accordingly, affirmed his conviction and sentence. Id. at 1298--1300, 1301--02.

D. Outten's State Post-Conviction Proceedings

Outten next filed an amended motion for post-conviction relief in the Delaware Superior Court, arguing that his counsel was ineffective during both the guilt and penalty phases of his trial proceedings. He specifically contended that counsel erred by failing to (1) conduct an adequate pre-trial investigation, (2) move for severance of his guilt phase from that of his co-defendants, (3) provide proper advice concerning his right to take the witness stand, (4) move for severance of his penalty phase from that of his co-defendants, (5) adequately investigate and prepare mitigating evidence, and (6) move for a new trial. Outten II, 1997 WL 855718, at *76.

Outten requested an evidentiary hearing on his post-conviction claims. Id. at *26. The Superior Court ruled that an expansion of the trial record was necessary for it to adequately address the issues presented.*fn5 Id. Thus, "Outten's counsel was asked to respond in affidavit form to a series of Court questions." Id. Those questions concerned the following subjects:

(1) the list of witnesses for the penalty hearing that petitioner alleges was given to counsel and not investigated, discussions about such witnesses with petitioner, and decisions made by counsel about which witnesses to produce; (2) the efforts, if any, to investigate petitioner's court and school records; (3) any decision made by counsel on how to present petitioner at the penalty hearing; (4) whether there was a conscious decision to sever the penalty hearing [from that of the Sheltons]; (5) whether advice was given to petitioner not to testify during the guilt phase; (6) the substance of petitioner's testimony had he elected to testify; (7) whether counsel was aware of petitioner's telephone call from the bar to his girlfriend the night of the murder; (8) whether counsel had discussed petitioner's relationship with his father beyond the last year of his father's life; (9) whether there was a conscious decision not to have a psychiatric examination of petitioner for use during the penalty hearing; (10) what role petitioner took in any of the above decisions; (11) the reasons counsel did not join in Nelson Shelton's motion to sever the guilt phase [from the penalty hearing]; and (12) whether counsel was aware that petitioner cashed a check on the night of the murder at a location other than the one testified to by Gibbons.

Outten IV, 2004 U.S. Dist. LEXIS 5546, at *25--26. Outten's trial counsel jointly responded by affidavit as directed. Id. at *26. Outten and the State, respectively, filed answers to that affidavit. Id. After reviewing those newly submitted materials, the Superior Court concluded that an evidentiary hearing was unwarranted. Outten II, 1997 WL 855718, at *26. It also denied Outten's amended motion for post-conviction relief. Id. at *92.

Outten appealed to the Delaware Supreme Court the ruling of the Superior Court, contending, inter alia, that it erred by not holding an evidentiary hearing. Outten v. State, 720 A.2d 547, 551 (Del. 1998) (Outten III). He also argued that the Superior Court abused its discretion in denying his post-conviction claims of ineffective assistance of counsel. Id. at 551--58. The Supreme Court of Delaware disagreed, and affirmed the denial of Outten's request for ...


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