Cape Gazette
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Supreme Court reverses death sentence

Cab driver Leslie Small to receive new penalty hearing
By Kara Nuzback | Oct 09, 2012
Source: File photo Leslie Small

Dover — Convicted murderer Leslie Small won a reprieve when Delaware Supreme Court reversed his death sentence. Chief Justice Myron Steele’s Sept. 11 opinion says prosecutors distorted the purpose of the penalty phase and may have confused the jury.

Small was sentenced to death for the murder of June McCarson in November 2009. Small, 54, was found guilty of seven felony charges, including two counts of first-degree murder for repeatedly stabbing McCarson, 78, with a pair of scissors in her Lewes home.  Small, a former cab driver who had taken McCarson to the bank and to do other errands, testified he wanted to steal McCarson’s pocketbook and use her money to buy crack cocaine.

After a trial and penalty hearing, a jury found Small guilty of murder and unanimously recommended the death penalty. Sussex County Superior Court Judge Richard Stokes imposed the death sentence July 22, 2011.

Appellant attorneys Bernard O’Donnell, Nicole Walker and Santino Ceccotti filed a Feb. 20 appeal of Small’s death sentence.

A panel of state Supreme Court Justices heard oral arguments in the case Aug. 8.  Walker told the panel Small’s death sentence should be overturned because prosecutors made unfair comments during Small’s penalty hearing.

Walker said prosecutors tried to convince the jury that the mitigating circumstances in Small’s case were just excuses for his actions.  She said past cases have determined that referring to mitigating factors as excuses is a reversible error, and Small deserves a new penalty hearing.

If mitigating factors outweigh aggravating factors in a capital murder case, a jury could likely recommend a lesser sentence for the defendant.

The Supreme Court panel – Steele and justices Randy Holland, Carolyn Berger, Jack Jacobs and Henry DuPont Ridgely – sided with Walker.  “Because we find the prosecutor’s repeated characterization of mitigating evidence as excuses to be plain error, we reverse the imposition of a death sentence and remand for a new penalty hearing,” Steele wrote.

Steele's opinion notes prosecutors compared Small’s mitigating circumstances to excuses eight times during the state’s closing rebuttal; prosecutors said Small was shifting the blame three times.

Steele said distress, insanity and involuntary intoxication constitute excuses.  He wrote, “On the other hand, a mitigating circumstance is any factor which tends to make the defendant’s conduct less serious or the imposition of a penalty of death inappropriate.”

Small presented 17 mitigating circumstances during the penalty hearing, Steele said.  “We read this evidence, offered as mitigating circumstances, such as borderline intellectual functioning and HIV, as reasons not to put Small to death, not as justifications or excuses for committing the murder,” he wrote.

Steele said repeatedly calling mitigators excuses may not have changed the outcome of the penalty hearing, but it jeopardized the fairness and integrity of the hearing.  “The prosecutorial misconduct tainted the jury’s vote on whether the aggravating circumstances outweighed the mitigating circumstances,” he wrote.

Steele said Stokes might not have imposed a death sentence if the jury had not voted unanimously in favor of it.  “Although Delaware law would have permitted the trial judge to impose the death penalty even if the jury had voted differently, we cannot be confident that the trial judge would have done so,” he said.

Steele said the panel reversed Small’s death sentence and ordered a new penalty hearing.  If the state decides to accept the mandatory life sentence for Small and not continue to seek a death sentence, a new penalty hearing would not be required.

Delaware Department of Justice spokesman Jason Miller said in a statement the department could not comment on the penalty hearing. “The ultimate decision regarding further sentencing proceedings will be made after a full examination of the matter and discussion with those closest to Ms. McCarson,” he said.

Miller said the Supreme Court’s decision does not affect Small’s conviction.  “The jury's verdict for first-degree murder stands, and Small will, at the very least, remain in prison for the rest of his natural life.”

Miller said trial prosecutors Peggy Marshall and David Hume would be reassigned to handle a new penalty hearing, and no date for the hearing has yet been set.

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