STATE v. NORMAN, 0504005647A (Del.Super. 9-28-2007)

STATE OF DELAWARE v. ALLISON L. NORMAN, Defendant.

ID No. 0504005647A.Superior Court of Delaware, Sussex County.Penalty Hearing Concluded: June 25, 2007.
Decided: September 28, 2007.

CRIMINAL ACTION NUMBERS IS-05-06-0745 thru IS-05-06-0753 IS-05-06-0755, FINDINGS AFTER PENALTY HEARING.

Peggy J. Marshall, Esq., and Adam D. Gelof, Esq., Deputy Attorneys General, for the State of Delaware.

James Brendan O’Neill, Esq., Stephanie A. Tsantes, Esq., and Deborah L. Carey, Esq., for the defendant.

GRAVES, J.

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On April 7, 2005, Allison Lamont Norman (“Norman”) shot and killed James Weston. He immediately shot and wounded Marcus Cannon. Minutes later, he shot and wounded Anthony White. He drove through Delmar, Delaware, to Salisbury, Maryland, in a vehicle stolen from Cedric Harris. In Maryland, he shot and killed Devondale Peters. He shot and wounded Marsha Hankerson. He shot and paralyzed Carla Green. He shot at others.

In Delaware, he was indicted for murder in the first degree, two counts of attempted murder in the first degree, three counts of possession of a firearm during the commission of a felony, three counts of wearing body armor during a felony, and one count of felony theft.

Following Norman’s capture in Salisbury, Maryland, his mental condition deteriorated. The jury had the opportunity to view, from the day of his arrest, a video-only recording of the defendant in his cell, a separate sound-only recording of the defendant alone in his cell, and the videotaped interview of the defendant with the authorities discussing some of the event s of the day.

Norman’s communications jumped from subject to subject and he talked very quickly, but he was oriented to time, place, and why he was in custody. While he would frequently discuss irrelevant matters, he was generally responsive to the questioning process.

In a matter of days, Norman’s mental status had deteriorated to the point that he was sent to Clifton T. Perkins Hospital (“Perkins”) for observation, evaluation, and/or treatment. He went from being able to participate in the interview on the day of his arrest to having to be restrained. Thereafter, he was returned to the Wicomico County Jail. His discharge summary from Perkins included consideration of the following: substance-induced psychosis and mental disorder, substance abuse, delirium (drugs), and anti-social personality disorder (ASPD).

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His doctor was also of the opinion that there was an overlay of malingering by Norman. This was based on overall observation and a “set up” test where he spoke outside Norman’s room loudly about Norman to see if Norman’s conduct changed based on the doctor’s comments. Norman’s conduct did change, which the doctor concluded was evidence of malingering or exaggerating by Norman.

Dr. Joanna Brandt, a psychiatrist retained by the Maryland Public Defender, evaluated Norman. Dr. Saadia Alizai-Cowan, a psychiatrist in charge of admissions at Perkins, also evaluated him. Both doctors opined that on April 7, 2005, Norman was substantially unable to appreciate the wrongfulness of his conduct because he was psychotic. Specifically, his diagnosis was “Psychosis Not Otherwise Specified”, also referred to as “Psychosis NOS”, per the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR). In layman’s terms, this means their diagnoses was that he was psychotic, but his psychosis did not fit into or fall into any specific mental disorder recognized by psychiatrists.

Later, Dr. Stephen Mechanick examined him for both the State of Maryland and the State of Delaware. Dr. Mechanick opined that the defendant’s mental state on April 7, 2005, best could be diagnosed as delirium due to drug consumption. He also was of the opinion that Norman was unable to substantially appreciate the wrongfulness of his conduct.

The laws governing accountability and culpability for one’s conduct while voluntarily intoxicated and the interaction between intoxication and mental illness differ between Maryland and Delaware. Apparently, for that reason, the Wicomico County State’s Attorney dismissed the Maryland charges and Norman was returned to Delaware in April 2006. Trial was scheduled for

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November 2006, but had to be rescheduled for May 2007 due to the retirement of the lead defense attorney.

Trial began on May 14, 2007, and ended with a guilty verdict to all counts. Pursuant to 11 Del.C. § 4209(b), the penalty hearing began on June 25, 2007, with a jury recommendation being entered four days later.

The jury unanimously found beyond a reasonable doubt the statutory aggravating circumstance that the defendant’s course of conduct resulted in the deaths of two or more persons, and the deaths were the probable consequences of the defendant’s conduct. 11 Del.C. § 4209(e)k.

The Court previously had ruled that the death of Devondale Peters in Maryland could be used to establish this aggravator and the applicable law as to the proof of the aggravator would be Delaware law. In other words, the proof of the aggravating circumstances would not be the equivalent of the State having to prove that Norman committed a murder in Maryland pursuant to Maryland’s laws and defenses. Delaware law would be applicable to his conduct as to the aggravator even if the aggravating conduct occurred in Maryland.

By a unanimous vote, after weighing all relevant evidence in aggravation or mitigation, which bears upon the particular circumstances or details of the commission of the offense and the character and propensities of the offender, the jury found by a preponderance of the evidence that the aggravating circumstances found to exist outweighed the mitigating circumstances found to exist. 11 Del.C. § 4209(c). The jury recommended a sentence of death.

Therefore, it is necessary for the Court now to consider the recommendations of the jury together with all relevant evidence in both the guilt phase and the penalty phase, and then determine an appropriate sentence. 11 Del.C. § 4209(d)(1). That sentence must be either death or life without

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probation, parole, or any other reduction of his sentence. 11Del.C. 4209(d)(1) and (2).

The Court may not make its own findings regarding the statutorily-required aggravating factor; instead, the jury must make that finding. Brice v. State, 815 A.2d 314, 322 (Del. 2003). However, as to the non-statutory aggravating and mitigating factors, the Court makes its own findings. Id.; State v. Guy, Del. Super., Def. ID# 0107017041, Carpenter, J. (Sept. 30, 2005), aff’d, 913 A.2d 558 (Del. 2006);State v. Hassan-El, Del. Super., Def. ID# 0107017049, Carpenter, J. (Sept. 30, 2005), aff’d, 911 A.2d 385 (Del. 2006). Judge Gebelein specifically stated that “[t]he Court must independently consider the evidence” in carrying out its sentencing responsibilities. State v.Flonnory, Del. Super., Def. ID#9707012190, Gebelein, J. (July 22, 2004) at 2, aff’d, 893 A.2d 507 (Del. 2006), cert. den., — U.S. —, 127 S. Ct. 66 (2006). If the evidence leads the Court to a different conclusion, it is not bound by the jury’s recommendation. State v. Garvey, Del. Super., Def. ID#0107010230, Cooch, J. (Dec. 17, 2003) at 10, aff’d, 873 A.2d 291
(Del. 2005); State v. Ploof, Del. Super., Def. ID# 0111003002, Ridgely, P.J. (Aug. 22, 2003) at 9-10, aff’d, 856 A.2d 539 (Del. 2004).

THE GUILT PHASE The State’s Case-in-Chief
On April 7, 2005, Norman, an African-American who was 22 years of age, left an apartment at Carvel Gardens to walk his daughter to her school bus stop. It was approximately 8:00 a.m. He was armed with a Glock 9mm handgun. He wore a body armor vest.

As Jamel Weston approached, Norman shot Mr. Weston twice. Mr. Weston died. Mr. Weston’s cousin, Marcus Cannon, was returning from the bus stop and was near Jamell Weston. He saw Norman shoot Mr. Weston so he turned, ran, and hid in another part of the Carvel Gardens

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apartment complex. While Mr. Cannon ran away, Norman shot him, wounding him in the arm.

Norman went back into the apartment. His girlfriend, the mother of his child, was yelling at him and she said the police would be coming. He left the apartment again. He stole a black Ford Focus which Cedric Harris owned. Mr. Harris had stopped to visit someone and had left his keys in the car.

Norman drove out of the apartment complex in an easterly direction on Discountland Road. At the corner of Discountland Road and the Discountland shopping complex, he saw Anthony White. Mr. White had just dropped his vehicle off for repairs and was looking for a ride to Seaford. He did not know Norman but had “seen him around.” He asked Norman if he was going to Seaford. Norman’s response was that “he was killing niggers today.” Norman fired what Mr. White thought to be six to seven rounds while saying “Die nigger, die.” Mr. White was seriously wounded in his stomach and legs. Norman drove south on Route 13.

In Salisbury, Maryland, he was arrested. The Glock and the vest were taken from him. Events in Delmar and Maryland will be discussed later, as they came before the jury in the defense’s case and the State’s rebuttal.

The balance of the State’s case-in-chief involved the evidence collection, matching bullets and casings to the defendant’s firearm, as well as Dr. Judith G. Tobin’s findings as to the cause of death of Mr. Weston.

The Defense
The defense did not dispute any of the above. There was no dispute that Norman had committed the charged offenses. The defense was insanity pursuant to 11 Del.C. § 401(a). The defense, specifically, was that Norman’s actions were due to a psychotic episode and at the time of

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these shootings, he lacked the substantial capacity to appreciate the wrongfulness of his conduct.

In the attempt to establish this mental illness defense, a number of witnesses testified as to the character and personality of Norman. The focus of this testimony was that several events occurred in Norman’s life which started him down a path which ultimately culminated in his behavior on April 7, 2005.

These events included the following:

(a) His brother’s trial in August 2004 for first degree murder and the mitigation testimony involving the rape of Norman and his brother at the hands of a male babysitter when Norman was approximately five years old. His brother was convicted of first degree murder involving a drug deal that went bad and was sentenced to life without probation, parole, or other reduction of sentence.
(b) His building resentment of his mother for having been so cavalier as to the rapes. From Norman’s viewpoint, she just did not care. His hostile feeling as to his mother led to a plan to kill his mother, but he abandoned his plan.
(c) Significant as to the “state of mind” defense was a shooting at “Thirsty’s” in Delmar, Maryland, just over the state line. This occurred in October 2004, just five months prior to the April 7, 2005, episode. While seated in his vehicle, he was shot. He was carrying a gun that day and returned fire, which he believed saved his life. His wounds were serious, resulting in hospitalization for several weeks. Although an admitted drug dealer, this incident was attributed to a fight over a girl, not a “drug dealer” issue. Following his release from the hospital, Norman realistically was concerned about someone harming or killing him, as the shooters were still on the

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street. He continued to carry a firearm and he began wearing a bullet-proof vest.
The defense theory was that the “Thirsty’s” episode was the beginning of his downward mental slide. The State saw “Thirsty’s” in a different light. To the State, “Thirsty’s” was nothing more than the foreshadowing of the events of the criminal path the defendant had chosen. His antisocial behavior, his drug dealing, and his illegal gun possession preceded the shooting at “Thirsty’s.” His subsequent paranoia was not a mental illness, or a symptom of mental illness. His worries were real, not imagined, and were based upon his lifestyle decisions.
(d) As a result of his desire to self-medicate and/or his desire to be more vigilant and stay awake and/or just liking the effects, he began to consume ecstasy[1] in late January or early February 2005.

The defense witnesses testified that in the weeks prior to April 7, 2005, they could see his behavior begin to change and that he was acting strangely.

A day or two before the shootings, he allegedly had an encounter with his friend, Devon, whereby he became paranoid and took his friend’s firearm because he thought his friend was going to kill him.

On the night of April 6, 2005, or early morning hours of April 7, 2005, he drove Devon home. When he returned, he put his gun to his girlfriend’s head. Then he calmed down.

That night he had watched an “X-Files” television show, which had aliens as a theme. In the early morning hours, he thought aliens were assaulting the children. He got the children out of

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bed and into a corner. He pulled the window curtains down. He waived his gun around. He made the children cry as that would keep t he aliens away.

With the help of family and friends things got under control. Later that morning, before taking his daughter to the bus stop, he asked his girlfriend for his gun and vest. His girlfriend, who had hidden the gun and vest during the above episode, thought he was “normal enough” that she returned his gun and vest to him. He reasoned with her that he needed his gun and vest to protect himself because of the “Thirsty’s” people. His girlfriend, who returned his gun to him and had made the decision he was all right, was the same person who observed his behavior during the previous night. She made the judgment call that he was sufficiently all right that he could have his gun back. He then left with his daughter for the bus stop and the shootings began.

Dr. Brandt and Dr. Alizai-Cowan testified for the defense that they did not believe drugs had anything to do with his mental status. Based upon their subjective clinical judgment, they thought he was psychotic on April 7, 2005, to the point he could not appreciate the wrongfulness of his conduct and should not be criminally responsible for his actions. Each doctor’s diagnosis was Psychosis Not Otherwise Specified.

State’s Rebuttal
The State called Dr. Mechanick in rebuttal. He did not agree with the defense diagnosis of Pyschosis NOS. It was his opinion that the defendant’s increasing use of ecstasy, together with marijuana, caused the defendant to experience a delirium (DSM-IV-TR, P. 143). He testified that in layman’s terms, the drugs resulted in the defendant’s brain just not working and his thoughts were all over the place. He believed that the defendant’s disturbance of consciousness, difficulty in focusing, shifting thought patterns, perceptual disturbances, and rapid fluctuations in mood and

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emotion were characteristic of a delirium caused by poly-substance drug abuse.

He also noted Norman’s antisocial personality disorder as basically the defendant’s baseline. Putting his baseline antisocial personality disorder together with the drug-induced delirium resulted in the April 7, 2005, conduct.

He disagreed with the defense doctors, noting that the symptoms the defense doctors found important in their assessment of Norman were not present until Norman began consuming ecstasy, and to the extent the defense doctors noted post-shooting symptoms, they, too, subsequently disappeared.

The defense recognized it was necessary and appropriate for the jury to learn about the defendant’s uncharged conduct, which took place after the defendant left Laurel. The doctors had to consider all of his conduct that day in reaching their opinions. Therefore, the jury learned about much that occurred in Maryland. This included the following.

Norman drove south on Rt. 13 and went into Delmar, where he shot at two men picking up trash. They hid behind their trash truck. Neither were physically injured. The bullet went into a house and lodged in a wall above where the occupant was asleep on a sofa.

Then he proceeded south to Salisbury, Maryland, to the house of a friend, but his friend was not home. He shot two dogs and took one with him. He shot into a house where several white construction workers were making repairs to the house.[2] He shot Davondale Peters, Carla Green, and Marsha Hankerson. Mr. Peters was killed. Ms. Green was paralyzed, and Ms. Hankerson was wounded in the shoulder.

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In both the defense’s case and the State’s rebuttal, the jury learned of the uncharged conduct of April 7, 2005, as well as the defendant’s criminal problems associated with “Thirsty’s.” He was charged in Maryland with possession of a firearm by a person prohibited. The jury also learned of another earlier firearm possession conviction. This evidence was important and relevant testimony, as the doctors had to consider same in their evaluations and diagnoses. It was also necessary for the jury to consider same in determining if the defendant lacked substantial capacity to appreciate the wrongfulness of his conduct.

The jury was instructed as to the mental illness defense. More specifically, the jury members were instructed that if they determined Norman lacked substantial capacity to appreciate the wrongfulness of his conduct, then they shall return a verdict of not guilty by reason o f insanity. 11 Del.C. § 401(a).

The jury also was instructed as to the guilty, but mentally ill defense. More specifically, the jury was instructed that if the State had proven its case beyond a reasonable doubt, and if the jury found that Norman suffered from a psychotic disorder which substantially disturbed his thinking, feeling, or behavior; and/or that such psychotic disorder left him with insufficient willpower to choose whether a person would do the act or refrain from doing it, although physically capable, then the jury shall return a verdict of guilty, but mentally ill. 11Del.C. § 401(b). This instruction was given over the objection of the defendant.

Finally, the jury was instructed that as to voluntary intoxication under 11 Del.C. § 422 and the “no defense” provisions of 11Del.C. § 401(c). Section 401(c) states that it shall not be a defense if the mental illness or insanity was proximately caused by alcohol and/or illicit drugs.

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The jury found that the State proved beyond a reasonable doubt that Norman murdered Mr. Weston and attempted to murder Mr. Cannon and Mr. White. He was found guilty of the weapons offenses, body armor offenses, and the theft of the automobile. The jury rejected the mental illness defenses and the guilty, but mentally ill defense. The jury found Norman to be accountable for his criminal conduct.

PENALTY PHASE
The sole statutory aggravator was that the defendant’s conduct resulted in the deaths of two people. As to this statutory aggravator, and based on the verdict as to Mr. Weston’s death, the jury was instructed as follows:

In order to determine whether or not the State has established this statutory aggravator you must make a determination of whether the State has established beyond a reasonable doubt the following elements:
1(a). The defendant caused the death of Devondale Peters. By this, I mean that the defendant, by his own voluntary act, brought about Mr. Peters’ death, which would not have occurred but for such act.

AND

(b). The defendant acted intentionally; that is, it must have been the defendant’s conscious object or purpose to cause the death of another person, that being Devondale Peters.

AND

(2) The deaths of Mr. Weston and Mr. Peters were the probable consequences of his conduct.

The jury found beyond a reasonable doubt that the State proved the statutory aggravator. This unanimous verdict by the jury made the defendant death-eligible.

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During the penalty phase the jury heard testimony as to the State’s allegations of non-statutory circumstances. The State alleged the following:[3]

1. The conduct for which the defendant was found guilty in Counts 2 through 10.
2. Other evidence of uncharged misconduct that occurred in Maryland and Delaware on April 7, 2005.
3. Victim impact as to Jamell Weston.
4. The defendant was on probation at the time of the offenses.
5. The defendant had pending firearm charges in Maryland at the time of the offenses and was wanted for failing to appear in connection with the case.
6. The defendant used illicit drugs.
7. In the past, Norman participated in and/or successfully or unsuccessfully completed the Key/Crest program(s) and/or Boot Camp.
8. The defendant’s prior criminal history, including any juvenile and adult arrests and any treatment, rehabilitation and sentence he may have received in connection with the crimes, including but not limited to his prison records, juvenile detention records and/or probation records, including but not limited to, any violations of probation.
9. The defendant’ s inability to comply with rules and regulations while in custody.
10. The defendant was wearing body armor at the time of the offenses.
11. The defendant was prohibited from owning or possessing a firearm at the time of the offenses.
12. The defendant was an admitted drug dealer.

The jury heard evidence of the mitigating circumstances alleged by the defense which consisted of the following:

1. Norman was born and raised in a negative home environment of dependency, neglect,

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and emotional abandonment that went undetected by state authorities.
2. Norman had a grossly dysfunctional childhood and was deprived of positive family structure and appropriate supervision.
3. Norman and his family were poor and lived for extended periods in impoverished conditions.
4. Norman never had a stable childhood home. He moved numerous times before the age of 18.
5. Norman was raised by a substance-dependent mother who exposed him as a very young child to drugs and criminal behaviors.
6. Norman’s mother’s substance abuse problems affected her ability to adequately parent him and provide him with the necessary nurturing.
7. As a child, Norman was directly exposed to a significant number of family members and friends who were involved with illegal drugs.
8. Norman was sexually abused by a male babysitter at age 4.
9. Norman’s need for treatment for sexual abuse went unrecognized and untreated.
10. Throughout his childhood, Norman was exposed to negative comments by his mother and others about h is father and his father’s side of t he family that affected his emotional and moral development.
11. When Norman was a teenager, he, his brother and mother were evicted when the City of Seaford condemned their trailer. That resulted in him bouncing around from place to place.
12. Norman lacked a stable and/or loving father-figure to provide for him financially or emotionally.
13. Norman had no appropriate male role models during crucial developmental stages of his life.
14. Due to the lack of appropriate male role models, Norman came under the influence of his mother’s boyfriends and others, who were often negative influences.
15. Norman earned his GED while in the Ferris School for Boys.

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16. Due to the emotional neglect that he endured as a child, Norman sought out love and acceptance from women, including his former girlfriends’ mothers, and often called them “mom”.
17. In the past, when Norman has been charged with crimes, he pled guilty or delinquent instead of taking those cases to trial.
18. Norman was 22 years old at the time of the shootings.
19. Since Norman was shot in October of 2004, his father has established a loving relationship with him.
20. Norman was genuinely in pain and suffered from his gunshot wounds from October 2004 through April 2005.
21. Norman ran into Benjamin Blackwell Green, the perpetrator of his and his brother’s sexual abuse, before April 7, 2005. This encounter caused Norman a great deal of stress.
22. At the time of the crimes, Norman was in the throes of a psychotic episode.
23. Norman’s actions, behavior and statements leading up to April 7, 2005, were cries for help that something was wrong.
24. At the time Norman shot Jamelle Weston, he lacked the substantial capacity to appreciate the wrongfulness of his conduct.
25. Norman has expressed remorse for the events of April 7, 2005.
26. Norman has positive relations with non-family members and there are many people who love him.
27. Norman not only loves his own biological children, but has relationships with his former girlfriends’ children and others’ children and genuinely loves them.
28. Norman developed a loving relationship with Donesha Sturgis when he learned that he was her father.
29. Norman has the ability and desire to continue to support and parent his children from prison to the best of his ability.
30. Executing Norman will cause emotional pain and suffering to his family, children, extended family and friends.

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31. The testimony of Dr. Alizai-Cowan and Dr. Mechanick (per stipulation) as to his culpability as to the Maryland charges.
32. A life sentence, if imposed, will never allow Norman to return to society. He will remain in prison without the benefit of parole or any other reduction of sentence.

The jury was instructed that it could consider all of the evidence presented during the guilt phase, as well as the evidence in the penalty phase.

The jury was instructed it could consider the defense’s mental illness defense. The jury also was instructed that if, in the guilt phase, it determined that the defendant’s conduct was a result of, or caused by, his drug usage or substance abuse, it nevertheless could consider this as a mitigating circumstance in making an appropriate sentencing recommendation.

The State’s evidence in support of the death penalty, i.e., the aggravating circumstances, included further evidence of uncharged conduct in Maryland. The defendant shot at passing vehicles. He shot into Mrs. Hankerson’s vehicle, wounding her in the shoulder. He shot into a vehicle in which it is reasonable to infer he could see a child inside. This evidence contradicted the “theme” presented in the mental illness defense that he was the protector of children. Just before he shot Mr. Peters, a witness heard him say, “No, you hold up motherfucker” and then Mr. Peters was shot at multiple times. That witness, Nattie Reddick, further stated that he shot into a white van (Carla Green) and then made eye contact with Ms. Reddick. As she fled toward her mother’s house, she could hear him behind her and the “click, click” of the firearm. He was out of ammunition.

The shooting of Carla Green was preceded by a telling comment to Ms. Green. He opened her vandoor and said, “This is a carjacking, bitch.” Ms. Green, who had her child in a carseat behind her, accelerated in an attempt to flee but was shot. One bullet paralyzed her from the waist down. One bullet passed behind her and took out the window next to her child in the back. The

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child was belted into a child’s car seat.

Then he broke through the front door of an elderly couple’s home. Mrs. Dutton testified he wanted a gun and their car and car keys. When she started crying, he told her to shut up and pushed her to the floor. He then fled.

When the police arrived, he was out of ammunition, and after a brief chase, he obeyed a police command to get on the ground. When the sheriff’s deputy told him, “Stop and get to the fucking ground or I will fucking shoot you,” he understood it and went prone to the ground.

It is noteworthy that when Norman started out in Laurel, he chose to take many, many bullets and several ammunition clips. Based on the sheer number of shots discharged at so many people, it is reasonable to infer he had to reload not only his Glock firearm but also the clips.

After his arrest, the defendant gave a long rambling statement in which sometimes he had a scattered and jumbled thought process. Nevertheless, when brought back to the subject by the police officer, he, for the most part, gave his explanation of a good deal of the day’s events.

THE WEIGHING OF AGGRAVATING AND MITIGATINGCIRCUMSTANCES The State’s Non-Statutory Aggravating Circumstances
The defendant was found guilty beyond a reasonable doubt of two attempted murder charges as well as the related firearm and body armor charges. These other convictions constitute aggravating circumstances.

I find that the State has established the other evidence of uncharged, but serious, conduct occurring in Delmar and in Salisbury. Specifically, this conduct was the shooting of, or at other people, African American and white, who were no threat to Norman. He also shot into the vehicle where a child was a passenger and it is reasonable to infer he could see that child.

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The death of Jamell Weston has had a significant impact on Mr. Weston’s sister and mother. This aggravating circumstance has been established.

The defendant was on probation at the time of the offense. He was 22 years of age at that time. He has a long history of criminal conduct beginning in Family Court. Rehabilitation efforts increased as the defendant’s criminal conduct escalated. Failing at Family Court probation, he was sent to Ferris School for Boys. His delinquency adjudications involved everything from shoplifting to assaults to disorderly conduct to having a handgun.

In Superior Court, the defendant was convicted of trafficking in illicit drugs. As part of the plea negotiations, a mandatory three-year sentence was diverted for the Bootcamp Diversion Program. He completed the six-month incarceration portion of the Bootcamp Program, but violated within months of being on the probation portion of Bootcamp aftercare. This was because he was back into his drug lifestyle.

Ultimately, the defendant received his diverted sentence of three years mandatory incarceration. He also was required to complete the Key-Crest programs offered by the Department of Correction. He completed his sentence and was placed back on probation. He was aware that his drug dealing lifestyle had earned him time at Ferris, Boot Camp, and three years mandatory Level 5 incarceration. He had developed a defiant attitude toward the police. His arrests usually were preceded by attempts to flee and/or resisting arrest. Given many opportunities to turn away from his criminal lifestyle, he rejected these opportunities, usually soon after he was back on the street.

His lengthy criminal record and failures at rehabilitation constitute a significant aggravator.

The State established that the defendant did not comply with the rules of the Department of Correction while awaiting trial. By using other inmates’ State Bureau of Identification (“SBI”)

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numbers, he was able to obtain phone call privileges far in excess of what was permitted. This would normally be a minor infraction of the rules, but there was evidence he used phone communications with a girlfriend to try to “get something” on one of the correctional officers responsible for his tier. Most human behavior may be manipulative to some degree as we each seek our own desires, wants, and goals, but Norman’s manipulative behavior has a negative tone to it. His rule breaking at the Department of Correction was established but it is not given great weight.

The defendant was wearing body armor at the time of these offenses, but this has been considered earlier in that he was convicted of wearing the armor. I find that he wore body armor for protection in the violent lifestyle he chose to live. This aggravator is established.

The defendant was an admitted drug dealer with convictions to prove it. He was prohibited from having a firearm. Unfortunately, since he was a juvenile, he has wrapped his lifestyle around selling drugs for a living and carrying firearms. He was carrying a gun the day of the “Thirsty’s” incident, in which he was the victim. He picked up charges in Maryland for having that gun and thought it unfair because he was the one who was shot.

The defendant’s deliberate choices to return to criminal conduct, to sell drugs, and to regularly keep guns in his possession constitute a significant aggravator.

The defense raises numerous mitigating circumstances which bear upon both the crime committed and the character and propensities of Norman.

The defense listed 32 mitigating circumstances, but many of these involve the same basic subject matter and therefore will be discussed by group.

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Defendant’s Negative Home Environment and Dysfunctional Family Life
(Numbers 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, and 19)
There is no doubt that Norman was born into a dysfunctional family and lived for much of his life without proper parental guidance and good male role models.

His father abandoned him before he ever was born. His mother did not have the financial resources to move them out of poverty. They lived in housing that was so bad it was condemned. As he grew older, he became more dependant on his brother than his mother. That brother, a significant male role model for Norman, was convicted of murder in the first degree in August 2004.

Norman’s mother was a cocaine addict whose interest seemed more in drugs than in raising her children or providing a positive role model. She had many different men in her life. Only one was presented as having a potentially positive influence on Norman, but he separated and divorced Norman’s mother after a couple of years. Norman’s father never got back into his life until around the time he was shot at “Thirsty’s” in October, 2004.

Even though his family provided little guidance, Norman did become actively involved in a local church from approximately nine to twelve years of age. It was a youth ministry and the children met twice a week. Norman was a bus captain in charge of the younger children and he would also clean the bus . This mitigator is established. Unfortunately, his life subsequently changed direction.

It is noted that a major argument was made that his mother had no emotional bond with the defendant. This mitigator is established.

His failures were argued to be due to his mother’s failures. There was testimony she was absent for periods of his life. She was absent from the trial. But Norman’s relationship with his

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mother and the inferences concerning her not caring to be involved with him became suspect when testimony was presented that Norman was calling his mother’s phone number from prison, not under his own name and SBI number, but by circumventing the Department of Correction rules as discussed above. Norman’s calls to his mother therefore were not documented as being from him. He was attempting to communicate with his mother without the State’s knowledge. While this mitigator is established, this testimony reduced its weight.

Norman is raised in a criminal environment. (Numbers 5, 6, 7, 14)
Norman’s mother was a drug addict and her children knew her lifestyle. She used drugs, she sold drugs, and it is reasonable to infer she bedded with drug suppliers. Norman was given money to take a package to someone and learned early in his life that there was “fast money” to be made with drugs. These mitigators are established. Unfortunately, though given many opportunities, he never moved away from this drug lifestyle, even after seeing the devastation it caused his family — his mother’s addiction and his brother’s murder conviction as a result of an armed attempt to rob a drug dealer.

These mitigators are established.

Norman was sexually abused as a child. (Numbers 8, 9)
At the age of four or five, Norman and his brother were sexually assaulted by Benjamin Blackwell Green. Despite recommendations from others, his mother did not get him into counseling and apparently wished to purposely ignore the event and its impact on both of her sons. Later, when this came up in the mitigation testimony of his brother’s penalty hearing, Norman became enraged at his mother’s apathetic attitude.

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These mitigators are established.

GED (Number 15)
Norman earned his GED during his extended stay at Ferris School for Boys.

This mitigator is established.

Norman’s emotional neglect as a child and its impact on his relationship with females. (Number 16)
The evidence established that the defendant had relationships with many girlfriends, sometimes at the same time. These relationships created stress in his life as he was shot supposedly over a girl, and there was evidence of arguments concerning whom he was seeing and when.

I do find the evidence establishes he wanted to be found acceptable in the eyes of women.

Previously when charged with crimes, Norman pled guilty or delinquent instead of going to trial. (Number 17)
The defendant has a number of convictions, all of which appear to be guilty pleas.

Accountability is a mitigating factor.

Norman was 22 years old at the time of the offenses. (Number 18)
Since there is so much violent and drug-related crime being committed by teenagers and young adults, I do not find his age to be a significant mitigator.

The defendant’s mental status at the time of the Delaware murder and the Maryland statutory aggravator. (Numbers 22, 23, 24, 31)
Did the defendant appreciate the wrongfulness of his conduct, and did mental illness play a role in what the State labeled as the defendant’s odyssey of terror?

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This trial was all about the defendant’s state of mind on April 7, 2005. The witnesses and the doctors presented opposing viewpoints as to the difficult task of determining just what was going on in Norman’s mind at the time of the crimes.

The defense witnesses painted the picture of a per son who was out of touch with r eality, a person who was in the throes of a psychotic episode, and who lacked substantial capacity to appreciate the wrongfulness of his conduct.

The defense’s position was that his conduct was not drug-induced, but was an independent psychotic episode which their doctors diagnosed as Psychosis NOS. The defense doctors opined that, because the defendant’s psychosis continued for many months after the last drug usage, drugs were not the cause of his behavior.

The State, through its fact witnesses and Dr. Mechanick, offered the jury a different picture. Dr. Mechanick opined that the defendant was in a state of delirium caused by his escalating consumption of ecstasy, together with using marijuana. Dr. Mechanick opined that there was a lack of a central theme in the defendant’s behavior to establish a psychosis, independent of his drug usage. He did not agree with the defense doctors as to the length of the period of time that the defendant exhibited any symptoms of mental illness, and he testified that ecstasy can produce symptoms long beyond the rule of thumb of thirty days for drug-induced mental illness. (DSM-IV-TR)

The jury heard from the treating physician at Perkins, when the defendant was in his care in April 2005 to May 2005. He did not give an opinion as to the defendant’s state of mind on April 7, 2005, but did opine that when he saw Norman, he was of the opinion that any psychosis was drug-induced and that the defendant was malingering.

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His shooting into a car that had a child in it contradicts the theme of protecting children. Shooting at the white construction workers contradicts the theme of white people are good, black people are bad.

Finally, I note that the four doctors agreed on a finding which I accept. Norman has an antisocial personality disorder (ASPD). In a nutshell, ASPD, as recognized in the DSM-IV-TR 301.7, includes the persistent failure to com ply with social norms, usually resulting in criminal conduct. Characteristics include deceitfulness, “conning” others for one `s own benefit, irritability, aggressiveness, reckless disregard for others’ safety, irresponsibility, and indifference as to the victims of the actor’s conduct.

The doctors all agreed that their individual opinions were based upon their clinical judgment, their subjective weighing of what factors were more important than other factors.

The jury heard the doctors’ attempts to defend their opinions and explain why they believed their respective opinions should prevail over others’ opinions. It was the jury’s job as trier of the facts to sift through this testimony, accepting or rejecting same based on all of the evidence.

The jury’s verdict of guilty as charged means the jury rejected the mental illness or psychotic disorder defenses and found that the defendant was legally accountable for his conduct. Now the Court, in considering all relevant evidence, must consider independently the evidence regarding aggravators and mitigators and the defendant’s state of mind.

Independently, I agree with the jury.

I conclude that the defendant, while laboring under some mental distress caused by his drug consumption, was able to substantially appreciate the wrongfulness of his conduct.

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The following evidence supports the determination that the defendant was able to appreciate the wrongfulness of his conduct.

1. The defendant, after shooting Mr. Weston and Mr. Cannon, and being told by his

girlfriend that the police would be coming, immediately left the scene by stealing a car.

2. Within minutes, he said to Mr. White he was “killing niggers today.” As he shot him he said, “Die nigger, die.”

3. Before he shot Devondale Peters, he yelled, “No, you hold up, motherfucker.” This was after he got out of Mr. Peters’ SUV and Mr. Peters was starting to drive away. It is reasonable to infer he wanted to take Mr. Peters’ vehicle.

4. Before he shot Carla Green, he said, “This is a carjacking, bitch.” This is very significant. He knew what he was doing was a crime. He shot her when she tried to get away. She had a child in the vehicle.

5. When he saw Ms. Reddick, who had just witnessed him shoot two people, he chased after her, pulling the trigger on an empty gun.

6. He broke into Mr. and Mrs. Dutton’s home and demanded a gun and the keys to their vehicle. When Mrs. Dutton became upset, he shouted for her to shut up and pushed her to the floor.

7. He carried with him a very large amount of ammunition.

8. He was able to comprehend the meaning of “Stop and get to the fucking ground or I will fucking shoot you.” He understood and he went prone to the ground.

9. In his interview with the police, he understood he had shot and killed people. A comment was made as to “Give me the death penalty.” While his statement is rambling and scattered, he comprehended that what he did was punishable, i.e., wrong.

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Based upon all of the evidence presented at trial, and especially the above, I find that the defense did not establish that the defendant lacked substantial capacity to appreciate the wrongfulness of his conduct. I agree with the jury’s verdict at the guilt phase. In other words, the focus of the Court’s consideration of his mental health has been primarily as to April 7, 2005. The Court notes that a significant degradation of his mental health occurred after his incarceration and after he went “cold turkey” as to his illicit street drugs. He went from being able to communicate and talk with the police to a four-point restraint in a matter of days. He previously had expressed much anxiety about returning to jail due to the “Thirsty’s” charge.

The above evidence establishes that the defendant was aware that he was committing criminal acts and that it was wrong. He did appreciate the wrongfulness of his conduct.

I note that his mental health is not an issue at this time. By the end of 2005, his mental health symptoms no longer existed.

The bottom line is that I do not find the defense has established that he was in the throes of a psychotic episode at the time of his criminal conduct. I do not find that the defense has established that he did not substantially appreciate the wrongfulness of his conduct. I do find that he was “stressed out”, but that his mental health did not give rise to a legal defense.

As to mitigation, I have also considered the evidence as it pertains to the defendant’s mental health on April 7, 2005, his actions, and hi mensrea as it pertains to the potential verdict of a guilt y, but mentally ill verdict. The jury rejected this verdict[4] and found the defendant guilty.

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Nevertheless, I have considered this evidence as a mitigator.

First, I note that the option of guilty, but mentally ill was not requested by the defense, and it is my recollection the defense did not want it to be considered by the jury. Pursuant to 11 Del.C. § 3905, the jury was given the option to consider a guilty but mentally ill verdict.

The testimony of the defense and State focused primarily on whether or not the defendant was not guilty by reason of insanity under 11Del.C. § 401(a). The testimony as to 11 Del.C. § 401(b) was sparse, and to a degree was ak into a lesser of insanity.

Independently from the jury, I find that the defendant did not suffer from a psychiatric

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disorder[5] that substantially disturbed his thinking, feeling, and behavior; and/or left him with insufficient willpower to choose whether to do the act, or refrain from doing it (irresistible impulse).

Medical doctors can provide their opinions as to a person’s state of mind, but the finder of fact, whether it be jury or judge, is not bound by the opinions of experts. The finder of fact must consider all of the evidence, as well as the law, in determining the existence of insanity as a defense or guilty, but mentally ill as a possible verdict.

I believe it is appropriate for the sentencing judge to consider this mitigation evidence concerning the defendant’s mental health at the time of the crime, even if the mental health issues were attributable to the defendant’s voluntary consumption of drugs and alcohol. I have done that.

I am satisfied that the defendant was stressed out and that he experienced drug-induced mental health issues, but I do not find any psychiatric disorders to have “substantially disturbed” Norman’s thinking, behavior, or feeling; nor do I find he had insufficient willpower to refrain from his actions because of any psychotic disorder.

Norman’s mental health and stress that day is considered by the Court to be a mitigator. Norman’s mental health and stress were not the cause of his conduct. While this mitigator is found to exist, the Court finds that regardless of any drugs the defendant may have consumed, his thinking behavior and/or feeling was not substantially disturbed because of a psychiatric disorder. The judgments and choices he made were linked to his deliberately chosen path of a criminal lifestyle, and his frustration and anger at the circumstances he found himself in on April 7, 2005, due to his own choices.

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In other words, while the Court has found that the defendant’s mental health has been established as a mitigator, the weight it is given is based on the degree or seriousness of his mental health issues as discussed above.

Remorse (Number 25)
The defendant exercised his right to speak to the jury. In his allocution he apologized to the victims, their families and friends. He asked for mercy.

The defense has established this mitigating circumstance.

Impact of sentence upon Norman’s family and friends (Numbers 26, 27, 28, 29, 30)
Norman has many people who continue to love and support him. He has children who will be negatively impacted if he receives a sentence of death. Norman’s family and friends will be negatively impacted if he receives a sentence of death.

This mitigating circumstance has been established.

The criminal culpability of Norman if prosecuted inMaryland (Number 31)
By stipulation, the opinions of Dr. Alizai-Cowen and Dr. Mechanick were given to the jury concerning the defendant’s mental illness defense and the laws of the State of Maryland. If their opinions were found credible by a Maryland jury, under Maryland law, the defendant may possibly have been found to be not criminally responsible. I also note there is no reason to believe that a jury in Maryland would have had a less difficult job of sifting through the conflicting testimony in an effort to seek a just verdict.

Based upon the stipulation, this mitigating circumstance is established.

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FINAL DISCUSSION
There is persuasive evidence that Norman’s conduct was a product of a rampage where he was “angry at the world.” Things were not going right and it was not fair. Real events, primarily of the defendant’s own making, combined with the defendant’s drug use, triggered the defendant to go on this rampage.

The recipe for this disaster and tragedy was, in part, (a) the defendant’s choice to continue to make his living by the sale of illegal drugs following his three years of incarceration; (b) his multiple relationships with females, including having children with multiple partners, and the stresses created by same; (c) his decision not only to be deeply involved in the drug world, but to habitually be armed with a handgun; (d) the attempt on his life at “Thirsty’s” and his real and reasonable concern that those involved would attempt to harm him again, resulting in him not only continuing to carry a handgun but also wearing body armor; (e) his anger and frustration that he was the victim of an attempted murder at “Thirsty’s,” but nevertheless, because he was armed with a firearm at the time and was a person prohibited, he faced incarceration in Maryland on charges filed against him; (f) his decision not to appear in court in Salisbury, Maryland, on April 6, 2005, concerning the aforementioned charges; (g) his anxiety and frustration arising from his knowledge that the bench warrant in Maryland was going to result in his return to jail; and (h) his decision to use ecstasy instead of prescribed medications for the residual pain of the October 2004 shooting, or to use ecstasy to allow him to stay awake and be vigilant as to those who might harm him, or to use ecstasy just because it made him feel good.

With all of the above, layered on top of his antisocial personality disorder, the unfortunate consequence was Norman became a bomb looking for a trigger. For reasons known only to Norman,

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he went off on a rampage that was senseless. But just because one can not make any sense out of a senseless crime, it does not mean the conduct is excusable, nor does it mean the actor had to have been insane. It simply means his criminal conduct, i.e., his odyssey of terror, needlessly ended lives and brought misery and pain to others.

The Court has given appropriate weight to the jury’s unanimous recommendation for a death sentence. The Court finds it unfortunate that such a young man rejected the efforts of others to help him get out of the crime business. The many opportunities lost brings us to this critical juncture.

After independently weighing all relevant evidence, the Court finds by a preponderance of the evidence in aggravation or mitigation, which bears upon the particular circumstances or details of the commission of murder and the character of Norman, that the aggravating circumstances outweigh the mitigating circumstances the Court has found to exist. The sentence is death.

IT IS SO ORDERED.

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