State seeks death penalty in Lewes woman’s murder case
The state is seeking the death penalty for Leslie D. Small in connection with the November murder of a 78-year-old Donovan Smith mobile home park resident.
Small’s attorneys argue the Delaware death penalty statute is unconstitutional.
They also filed a motion saying that because prosecutors said they had no objection to the court’s setting bond for Small, they are now precluded from seeking the death penalty in this case.
Small’s attorneys also filed motions seeking to exclude statements he made to police because police failed to notify him of his Miranda rights.
Small, 51, of Milton, is charged with brutally murdering June McCarson while he was working as a taxicab driver.
Court documents state Small provided McCarson with transportation Nov. 11. He is accused of driving her to her residence and later stabbing her to death in her home.
In February 2010, a Sussex County grand jury indicted Small on one count of first-degree murder, one count of possession of a deadly weapon during the commission of a felony, one count of first-degree robbery during the commission of a felony, one count of second-degree burglary and one count of possession of a deadly weapon by a person prohibited.
Delaware State Police arrested Small around 2 a.m., Nov. 13, after tracking him to a motel in Milford.
Documents filed with the court by Small attorneys Stephen Callaway and John Daniello argue that for the death penalty to be imposed in Delaware, the state must convict the defendant of first-degree murder and must prove beyond a reasonable doubt that at least one aggravating circumstance exists.
The state must also prove – by preponderance of the evidence – that the aggravating circumstances outweigh the mitigating circumstances.
Callaway and Daniello state Delaware’s death penalty law is flawed because it leaves the decision as to whether aggravators outweigh mitigators up to a judge rather than a jury and because the factors are weighed by a preponderance of the evidence, which is legally considered a lower standard than beyond a reasonable doubt.
“Those two things are the fundamental flaws which render Delaware’s law unconstitutional,” the attorneys wrote.
The story of the crime
Investigators learned Small had driven McCarson on errands in his taxicab early in the evening of Nov. 12. Court documents state Small admitted to driving McCarson to the bank where he saw her get cash.
Court records indicate Small then drove her to a beauty salon and pharmacy near Lewes.
Court documents also state Small told investigators what happened after he took McCarson home.
Court documents said the victim suffered numerous stab wounds to her upper body and neck and had been beaten about the head.
Callaway and Daniello also are also asking the court to suppress as evidence any statements Small made to investigators because he was “critically impaired” at the time and did not understand his Miranda rights – the right not to speak to an officer and the right to request an attorney.
They also point out that during the second of two interviews, at 3:39 a.m. Nov. 13, police did not read Small his rights. During that interview, Small’s attorneys argue that Small said he was under the influence of crack cocaine and he “did not knowingly and intelligently waive his Miranda rights.”
Court documents state that nearing the end of the 25- minute video-recorded interview, Small told investigators when he “came down,” he would be able to understand the trouble he was in.
During the interview, court documents state that Small was not wearing shoes or socks, and when the interview concludes, he attempts to stand up but stumbles and falls into the wall.
“After being told by the defendant he was high on drugs (crack cocaine) and after observing the defendant and his demeanor, police failed to obtain a sample of the defendant’s blood to determine if the defendant was under the influence of any drugs or alcohol,” wrote Small’s attorneys.
http://www.capegazette.com/storiescurrent/201008-01-15/03003-leslie-small-case.html
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