Ploof v. State
Opinions
STEELE, Chief Justice for the Majority:
This appeal addresses whether a defendant received ineffective assistance of counsel during the penalty phase of his first-degree murder trial. We previously rejected the defendant’s claims arising from his trial’s guilt phase, but we remanded his penalty phase claims for the postconviction judge to reweigh the aggra[844] vating circumstances against the mitigating circumstances established at trial and in the postconviction proceedings.1 The defendant contends that his attorneys were ineffective because they failed to uncover evidence that the defendant’s father sexually abused foster children staying with the defendant’s family and also physically abused the defendant himself. We hold that the defendant’s attorneys should have investigated certain “red flags” indicating that the defendant’s childhood home was not as benign as initially portrayed. We conclude, however, that the attorneys’ failures did not prejudice the defendant. Therefore, we AFFIRM the judge’s denial of Ploofs postconviction relief petition.
I. FACTUAL AND PROCEDURAL BACKGROUND2
A. Heidi Ploofs Death and Gary Ploofs Conviction3
We described the circumstances surrounding Heidi Ploofs4 death in our opinion resolving Defendant-Appellant Gary Ploofs direct appeal:
Gary W. Ploof was a U.S. Air Force Staff Sergeant stationed with his wife, Heidi, at Dover Air Force Base during 2001. Beginning that year, Ploof had an affair with Adrienne Hendricks, a colleague with whom he worked part-time at a towing service. Ploof learned that effective November 1, 2001, the U.S. Air Force would provide $100,000 [in] life insurance for military spouses. He was informed that he would be automatically enrolled unless he took affirmative action to disenroll. Ploof told his supervisor of his intent to refuse the policy coverage, but he took no action to do so. Ploof also told Hendricks that she should plan to move in with him starting November 5, 2001 because he and Heidi were having marital problems, and Heidi was preparing to move out.
In truth, Heidi was not planning to move out nor did Ploof have any intention of rejecting the spousal U.S.A.F. life insurance coverage. Instead, Ploof intended to murder his wife soon after the life insurance policy became effective on November 1. On November 3, 2001, Ploof drove with Heidi to the parking lot of Dover Wal-Mart where he shot her in the head with a .357 magnum revolver. He did that in a way that (he believed) would suggest that she committed suicide. He also developed a scheme to mislead the police in the event that a homicide investigation ensued. Security videotape of the Wal-Mart parking lot on the day that Heidi’s body was found showed Ploof hurriedly walking away from her vehicle. Ploof also constructed an elaborate alibi by making numerous frantic phone calls feigning his concern for his missing wife. One of the calls prompted a friend to search for Heidi on the dark country roads on which she would have driven home from work. Ploof even called Heidi’s cell phone in an [845] attempt to deflect suspicion of his involvement. He then hid the murder weapon on his property and asked friends to hold on to another pistol and a gun case so that they would not be found by the police. Finally, he lied to police about his mistress, Hendricks, (suggesting that she was just a friend), about his weapons (maintaining that he owned no pistols), and about a life insurance policy in which Heidi was recently enrolled (insisting that he had no knowledge of the policy).5
In 2003, a Superior Court jury convicted Ploof of Murder in the First Degree. Because the State sought the death penalty, the trial judge conducted a penalty hearing in accordance with 11 Del. C. § 4209.
B. The Aggravating and Mitigating Circumstances Presented at the Penaltg Hearing
At the penalty hearing, the State sought to prove two statutory aggravating circumstances: (1) “[t]he murder was committed for pecuniary gain” and (2) “[t]he murder was premeditated and the result of substantial planning.”6 In Delaware, the jurors must find unanimously the presence of at least one statutory aggravating circumstance for a defendant to be eligible to receive the death penalty.7 The State also attempted to establish several nonstatuto-ry aggravating circumstances: (i) Ploof murdered Heidi without provocation, (ii) Heidi was defenseless, (iii) Ploof had a prison disciplinary record and a criminal history, (iv) evidence established that Ploof committed third-degree assault on a former girlfriend, (v) Ploof would be dangerous in the future, (vi) Ploof intimidated a witness, and (vii) Heidi’s death impacted her family.8
Ploof s attorneys (Trial Counsel)9 relied on twelve mitigating circumstances: (i) Ploof s life history, (ii) his relationship with his family members, (iii) his potential positive impact upon his family members, (iv) his history of gainful employment and usefulness as a productive member of society, (v) his potential positive impact on the prison population, (vi) his adjustment to prison life since his incarceration, (vii) his lack of a substantial prior criminal record, (viii) his lack of a criminal record involving violence, (ix) his lack of a prior record of felony convictions, (x) his capability to follow rules and regulations and to do well in a structured environment, (xi) his lack of a future propensity for violence, and (xii) the impact on his loved ones if he were executed.
1. The Aggravating Circumstances
During the penalty hearing, the State reiterated the trial evidence that Ploof had murdered Heidi in order to obtain the proceeds from a $100,000 life insurance policy so that he could ameliorate his financial problems. The State also introduced evidence that Ploof had a criminal record for tractor theft, and that the Air Force had reprimanded him for dereliction of duty and punished him for having an adulterous affair. The State also attempted to show that Ploof assaulted a former girlfriend. A prison administrator testified that Ploofs prison record contained [846] several minor violations and a major violation for possessing a shank (which Ploof claimed he used for engraving). Finally, Heidi’s uncle described his niece’s generosity and kindness, and he stated that he missed Heidi like he would miss his own daughter.
2. Military Service Record and Future Dangerousness Testimony
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STEELE, Chief Justice for the Majority:
This appeal addresses whether a defendant received ineffective assistance of counsel during the penalty phase of his first-degree murder trial. We previously rejected the defendant’s claims arising from his trial’s guilt phase, but we remanded his penalty phase claims for the postconviction judge to reweigh the aggra[844] vating circumstances against the mitigating circumstances established at trial and in the postconviction proceedings.1 The defendant contends that his attorneys were ineffective because they failed to uncover evidence that the defendant’s father sexually abused foster children staying with the defendant’s family and also physically abused the defendant himself. We hold that the defendant’s attorneys should have investigated certain “red flags” indicating that the defendant’s childhood home was not as benign as initially portrayed. We conclude, however, that the attorneys’ failures did not prejudice the defendant. Therefore, we AFFIRM the judge’s denial of Ploofs postconviction relief petition.
I. FACTUAL AND PROCEDURAL BACKGROUND2
A. Heidi Ploofs Death and Gary Ploofs Conviction3
We described the circumstances surrounding Heidi Ploofs4 death in our opinion resolving Defendant-Appellant Gary Ploofs direct appeal:
Gary W. Ploof was a U.S. Air Force Staff Sergeant stationed with his wife, Heidi, at Dover Air Force Base during 2001. Beginning that year, Ploof had an affair with Adrienne Hendricks, a colleague with whom he worked part-time at a towing service. Ploof learned that effective November 1, 2001, the U.S. Air Force would provide $100,000 [in] life insurance for military spouses. He was informed that he would be automatically enrolled unless he took affirmative action to disenroll. Ploof told his supervisor of his intent to refuse the policy coverage, but he took no action to do so. Ploof also told Hendricks that she should plan to move in with him starting November 5, 2001 because he and Heidi were having marital problems, and Heidi was preparing to move out.
In truth, Heidi was not planning to move out nor did Ploof have any intention of rejecting the spousal U.S.A.F. life insurance coverage. Instead, Ploof intended to murder his wife soon after the life insurance policy became effective on November 1. On November 3, 2001, Ploof drove with Heidi to the parking lot of Dover Wal-Mart where he shot her in the head with a .357 magnum revolver. He did that in a way that (he believed) would suggest that she committed suicide. He also developed a scheme to mislead the police in the event that a homicide investigation ensued. Security videotape of the Wal-Mart parking lot on the day that Heidi’s body was found showed Ploof hurriedly walking away from her vehicle. Ploof also constructed an elaborate alibi by making numerous frantic phone calls feigning his concern for his missing wife. One of the calls prompted a friend to search for Heidi on the dark country roads on which she would have driven home from work. Ploof even called Heidi’s cell phone in an [845] attempt to deflect suspicion of his involvement. He then hid the murder weapon on his property and asked friends to hold on to another pistol and a gun case so that they would not be found by the police. Finally, he lied to police about his mistress, Hendricks, (suggesting that she was just a friend), about his weapons (maintaining that he owned no pistols), and about a life insurance policy in which Heidi was recently enrolled (insisting that he had no knowledge of the policy).5
In 2003, a Superior Court jury convicted Ploof of Murder in the First Degree. Because the State sought the death penalty, the trial judge conducted a penalty hearing in accordance with 11 Del. C. § 4209.
B. The Aggravating and Mitigating Circumstances Presented at the Penaltg Hearing
At the penalty hearing, the State sought to prove two statutory aggravating circumstances: (1) “[t]he murder was committed for pecuniary gain” and (2) “[t]he murder was premeditated and the result of substantial planning.”6 In Delaware, the jurors must find unanimously the presence of at least one statutory aggravating circumstance for a defendant to be eligible to receive the death penalty.7 The State also attempted to establish several nonstatuto-ry aggravating circumstances: (i) Ploof murdered Heidi without provocation, (ii) Heidi was defenseless, (iii) Ploof had a prison disciplinary record and a criminal history, (iv) evidence established that Ploof committed third-degree assault on a former girlfriend, (v) Ploof would be dangerous in the future, (vi) Ploof intimidated a witness, and (vii) Heidi’s death impacted her family.8
Ploof s attorneys (Trial Counsel)9 relied on twelve mitigating circumstances: (i) Ploof s life history, (ii) his relationship with his family members, (iii) his potential positive impact upon his family members, (iv) his history of gainful employment and usefulness as a productive member of society, (v) his potential positive impact on the prison population, (vi) his adjustment to prison life since his incarceration, (vii) his lack of a substantial prior criminal record, (viii) his lack of a criminal record involving violence, (ix) his lack of a prior record of felony convictions, (x) his capability to follow rules and regulations and to do well in a structured environment, (xi) his lack of a future propensity for violence, and (xii) the impact on his loved ones if he were executed.
1. The Aggravating Circumstances
During the penalty hearing, the State reiterated the trial evidence that Ploof had murdered Heidi in order to obtain the proceeds from a $100,000 life insurance policy so that he could ameliorate his financial problems. The State also introduced evidence that Ploof had a criminal record for tractor theft, and that the Air Force had reprimanded him for dereliction of duty and punished him for having an adulterous affair. The State also attempted to show that Ploof assaulted a former girlfriend. A prison administrator testified that Ploofs prison record contained [846] several minor violations and a major violation for possessing a shank (which Ploof claimed he used for engraving). Finally, Heidi’s uncle described his niece’s generosity and kindness, and he stated that he missed Heidi like he would miss his own daughter.
2. Military Service Record and Future Dangerousness Testimony
Trial Counsel’s mitigation case emphasized Ploofs military service. Ploofs former supervisor, Keith Frye, testified that Ploof was a “good worker” with an excellent reputation. Frye described the various medals Ploof earned during his lengthy Air Force career, including Ploofs work helping to launch over 3,000 missions in Operation Desert Storm.10 Frye also noted Ploofs two Air Force Achievement Medals, which Ploof had earned by making emergency repairs to an aircraft in Mogadishu, Somalia, and ensuring the launch and recovery of 126 C-5 missions during Operation Joint Endeavour.11
Abraham Mensch, Ph.D., a psychologist, noted that Ploofs record established that Ploof had a commendable career and was a highly effective leader. Mensch also stated that Ploof had no psychiatric disorder that would predispose him to violence and concluded that Ploof would not be a danger to society in prison.
3. Shirley Ploofs Mitigating Testimony
Ploofs mother, Shirley Ploof, testified that Ploofs brother, Kevin Ploof, had severe mental and physical handicaps as well as behavioral problems throughout his life. She described how Ploof would protect Kevin. She also described Kevin’s various medical problems during Ploofs childhood. Shirley further explained that, beginning when Ploof was seven years old, over thirty foster children cycled through the Ploofs’ home, although never more than three at any one time. These foster children often had behavioral and psychological issues. Shirley admitted being a strict disciplinarian, stating that “if [Kevin and Ploof] asked for a slap, they got it.” Although she admitted spanking the foster children until she was told not to do so, she denied otherwise hitting them. Shirley was very distressed by her son’s potential execution, and she planned to move so that she could visit him more often.
C. The Jury’s Recommendation and the Trial Judge’s Decision
After the testimony concluded, Ploof spoke briefly and expressed remorse for Heidi’s death. He said that he was sorry that Heidi would never see her daughter and that he was sorry for both Heidi’s family and his family. The jurors then retired to deliberate. After eight hours, the jurors unanimously concluded that Ploof murdered Heidi for pecuniary gain and that the aggravating circumstances outweighed the mitigating circumstances.12
[847] In his sentencing opinion, the trial judge concluded that Ploof murdered Heidi without provocation and that Heidi was defenseless. The trial judge found that the State had shown that Ploof was disciplined in prison for “minor offenses” and for possessing a shank. The Air Force had also disciplined Ploof for having an extramarital affair. The trial judge noted Ploofs tractor theft and his arrest for conduct that would have established third-degree assault. In addition, the trial judge found that Heidi’s death had significantly impacted her relatives. The trial judge rejected the remaining aggravating circumstances.
Turning to the mitigating circumstances, the trial judge concluded that “[t]here are no mitigating circumstances at all which bear upon the particular circumstances or details of the commission of the murder.”13 Trial Counsel had established other mitigating circumstances, however. Ploof grew up in “difficult family circumstances with a physically handicapped and mentally retarded brother,” and Ploofs parents, Gerald and Shirley Ploof, devoted much of their time to the foster children who lived in their home. The trial judge found that Ploof had a good relationship with his family members and could positively influence them.
The trial judge credited Ploofs successful military career, noting that Ploof achieved Staff Sergeant (E-5) rank, served nearly twenty years in the United States and abroad, and earned “numerous commendations and service medals.”14 He concluded that Ploof lacked a substantial criminal record and had adjusted well to prison, although he had a prison disciplinary record. Because of conflicting testimony and the circumstances of Heidi’s murder, however, the trial judge found Ploof had failed to establish the “lack of future propensity for violence” mitigating circumstance.
Next, the trial judge concluded that Ploofs execution would seriously impact his loved ones. The trial judge also noted that Ploof had expressed remorse for Heidi’s death. But, the trial judge appeared to discount that remorse because Ploof had faked emotional distress to avoid detection after murdering Heidi.
The trial judge gave “great weight” to the jurors’ unanimous recommendation that the aggravating circumstances outweighed the mitigating circumstances, although he noted that their conclusion did not bind him.15 He also independently weighed the evidence and reached the same result, reasoning:
Here, there were several opportunities for Ploof to abandon his plan of murder but at every stage of his plan he chose death for Heidi Ploof. He chose death for Heidi Ploof so he could collect insurance on her life. He chose death for Heidi Ploof as part of his plan to live with his mistress. The killing of Heidi Ploof was without any pretext of moral or legal justification. It was preceded by a course of planning, reflection and calculation that makes this murder especially egregious and cold-blooded. [848] While there are mitigating circumstances which have been proved, they are insubstantial when compared to the nature of the crime and the true character of the defendant as revealed by his crime and by his conduct.16
We affirmed the trial judge’s decision on Ploofs direct appeal.17
D. Postconviction Proceedings
In 2005, Ploof filed a pro se postconviction relief motion under Superior Court Criminal Rule 61 and was later assigned counsel. Ploofs appointed counsel supplemented the pro se postconviction relief motion, but later withdrew because of a conflict of interest. Ploofs next appointed attorney also withdrew without filing anything further. Finally, yet another attorney was assigned, who further amended and supplemented Ploofs motion.
At his postconviction hearing, Ploof highlighted testimony from six former foster children who lived in the Ploof household. These foster children described abuse in the Ploof household (the “child abuse evidence”), which we summarize below.
1. The Child Abuse Evidence
a.Michelle Miller
Michelle Miller was four years old when she moved to the Ploofs’ home. Ploof was seven or eight years older than Miller. During Miller’s five-year placement, she recalled one incident involving Ploofs father, Gerald, who once approached Miller while she was watching television and exposed himself to her. Gerald asked Miller if she wanted to touch his genitals and she declined. Miller did not believe that Ploof knew the incident occurred. She thought of Shirley as “[sjtrict but nurturing,” but did not describe any specific experiences involving Shirley.
b.Davia Williams
Davia Williams lived with the Ploof family for two years when she was around fifteen years old. Ploof was one or two years older and seldom spent time in the house while Williams lived there. Williams testified that she avoided Gerald because he gave her a “creepy vibe” and acted “flirty” with another foster child whom he sat on his lap. Gerald’s job as a truck driver, however, meant he was often away from the house. Williams described Shirley as a perfectionist who required the children to redo chores if they did not meet her exacting specifications. Shirley yelled at Ploof and the foster children daily, and she once slapped Williams after she stayed at a shopping mall too late. Williams left the Ploofs’ home after telling a caseworker about Shirley slapping her.
c.Camille Deyo
Camille Deyo lived with the Ploofs for four months when Ploof was eighteen or nineteen years old. She testified that Gerald was “angry,” “loud,” and “inappropriate” and that Ploof would protect the foster girls by telling them to “take a walk” when Gerald was angry. When Deyo returned from her walks, she could sometimes hear Gerald yelling and Ploof crying. Although Deyo never saw Gerald beat Ploof, she knew Gerald hit him “three [to] four times a week” because she could “hear the hands hitting the flesh.” She did not recall Ploof being hospitalized or having bruises after the beatings. Deyo also stated that Gerald would walk around in his underwear and touch her breasts and buttocks. Ploof observed Gerald’s conduct and would tell Deyo to leave the house or go to her room to avoid Gerald. Deyo described Shirley as cold and indif[849] ferent to Gerald’s treatment of herself and Ploof during this period.
d.Christine Ruhmshottel
Christine Ruhmshottel began living with the Ploof family when she was seventeen years old and remained there until she was twenty.18 When Ruhmshottel began staying in the house, Ploof was twelve years old. She testified that Shirley hit her twice with a closed fist, and that Shirley would bend Ploofs brother Kevin’s hand backwards when he did something wrong. After Ruhmshottel became pregnant, Gerald began positioning himself so that Ruhmshottel could see his genitals. When asked whether she ever observed Ploof “following this kind of behavior,” she said, “I think one time I noticed it.”
e.Debra Paradowski
Debra Paradowski stayed with the Ploofs between six months and one year during her early teens. Ploof joined the Air Force while Paradowski lived in the house. Paradowski corroborated the other women’s statements that Shirley was very strict and forced the girls to redo chores if they were not done to her specifications. Shirley and Gerald fought frequently. Although Paradowski never saw Gerald hitting Ploof, she testified that she could hear Gerald hitting Ploof with a belt in the basement. Paradowski testified that Gerald sometimes rubbed his underwear-covered genitals against her and reached his hand across her breasts. Gerald also offered her money for oral sex, which Para-dowski declined. Although Ploof witnessed his parents fighting, Paradowski said that Ploof did not witness any of Gerald’s sexual improprieties. Paradowski claimed that caseworkers initially ignored her allegations against Gerald, but that after she left the home they called her to inquire about Gerald’s conduct.
f.Kimberly Goodwin
Kimberly Goodwin stayed at the Ploofs’ home for four years beginning when she was around fourteen years old. Ploof was several years older than Goodwin, who noted that Gerald’s job as a truck driver caused him to be gone for “weeks at a time.” Goodwin described Gerald as “angry” and “abusive” when he was home. She testified that he fought “constantly” with Shirley about his infidelity, and that Gerald physically abused Shirley when she confronted him about his affair with a sixteen-year-old babysitter. Goodwin also claimed that Gerald would regularly hit Ploof with a closed fist and once threw him down a flight of stairs. Shirley also slapped and hit Ploof, and once broke Kevin’s arm by twisting it behind him. Goodwin contended that on her sixteenth birthday, Shirley pressured her to stay at the house of one of Ploofs friends because the friend came from a moneyed, respected family. That evening, Ploofs friend raped her.
Goodwin also stated that Gerald touched her inappropriately and masturbated in plain view. According to Goodwin, Gerald also anally raped her and forced her to perform oral sex on him. This conduct occurred “several dozen[]” times. Goodwin witnessed a young girl performing oral sex on Gerald and observed another girl having anal sex with him. Ploof caught Gerald abusing Goodwin and would apologize to her for Gerald’s conduct. Goodwin reported Gerald’s abuse, but she did not know whether her caseworkers followed up on the information. Gerald allegedly choked Goodwin whenever she told anyone [850] of the abuse. Goodwin left the Ploof home in 1984, the same year the State of New York closed the Ploof foster home. Goodwin was told that the Ploofs planned to move to Florida. Despite the abuse she suffered, Goodwin later rented a house in Florida from the Ploofs because she “wanted answers” and because she wanted Shirley’s advice on how to care for her sick child because of Shirley’s experiences with Kevin.
g. Doctor Pablo Stewart
Doctor Pablo Stewart, a psychiatrist, testified on Ploofs behalf. Stewart noted that the report describing the Ploofs’ foster home’s involuntary closure referenced two “indicated reports” involving different foster girls and stated that the reports raised a “huge red flag” regarding the Ploofs’ home. He opined that the reports were relevant to a mitigation investigation because they raised concerns about what the Ploofs’ home was like while it was a foster home and even before. In Stewart’s experience, most death penalty defendants come from very abusive, traumatic backgrounds. Given Gerald’s chronic infidelity, the tension between Gerald and Shirley, Ploofs disabled brother, the constant cycle of foster children, Gerald’s sexual assaults on foster girls, and the physical abuse of Ploof, Stewart stated that it would not have been possible for a child like Ploof to develop normally. He stated that Ploof witnessed Gerald’s sexual abuse of girls and that Ploof and Kevin had suffered physical abuse by Gerald and Shirley, respectively.
Stewart also discussed a 1975 Pough-keepsie Department of Social Services report that described the Department’s frustration with Shirley’s use of, and requests for, Department funds; noted marital problems between the Ploofs that might lead to the instability of foster relationships; and described Shirley as “extremely defensive” after a foster girl transferred to another home. Stewart opined that the report indicated that the Ploofs had an interest in keeping the foster home open, that Shirley had a “vindictive” nature, and that Gerald and Shirley had marital problems. Stewart also stated that chronic denial of abuse often occurs in people who merely witnessed sexual abuse, as well as those who were direct victims. Stewart thought that Ploofs infidelity could be attributed to “modeling” Gerald’s behavior. Stewart was not surprised that adults described Ploof as “immature,” prone to embellishment, and a generally difficult person. Stewart further indicated that Ploofs high level of performance in the Air Force was still consistent with the abuse Ploof witnessed.
Stewart stated that the inconsistencies and questions surrounding Ploofs suicide defense were consistent with an inability to perceive reality that was related to the deceit and denial present in the Ploof household. Stewart rejected Ploofs assertion that he had a positive experience growing up. Instead, Stewart believed the foster girls’ testimony. Stewart conceded, however, that he could not offer an opinion that Ploof suffered from any mental illness or defect based on the information he (Stewart) had at the time of the hearing.
2. Additional Military Service Testimony
Ploofs postconviction counsel also provided a more detailed account of Ploofs Air Force service. John Guilmartin, a military historian, testified about Ploofs service record. Guilmartin described Ploofs position as a “high-pressure job” and highlighted Ploofs superiors’ praise for Ploofs “ability to deal with the unforeseen and unexpected.” He described Ploofs work in aid of 3,000 missions launched during Operation Desert Storm and noted particular instances where Ploofs swift repairs averted potential problems. Guilmartin [851] provided further details about military operations in Somalia and Operation Joint Endeavor and Ploofs role in those operations. Ploof consistently received high ratings, although Guilmartin noted that Ploofs ratings suffered when he had an extramarital affair. Guilmartin summarized Ploofs career by calling him a “committed, dedicated!],] competent!],] maintenance man who goes beyond the minimum demands of the job.”
Keith Frye, Ploofs former supervisor who testified at the original penalty hearing, did not recall reviewing Ploofs “enlisted performance reports” and stated that he felt unprepared for his trial testimony. Frye also described Ploofs duties and performance reports. Michael Kelty, a former Air Force technical sergeant who supervised Ploof, further detailed Ploofs work and noted that Ploof would assume a shift supervisor’s duties when the supervisor was absent. Kelty also reviewed an enlisted performance report that described Ploofs “extraordinary mechanical abilities.”
3. The Postconviction Judge’s Decision and Ploofs Appeal
The postconviction judge denied Ploofs petition for relief.19 On appeal, we affirmed the judge’s denial of Ploofs various guilt phase claims.20 We did not address Ploofs penalty phase claims, however, because we considered it prudent to afford the postconviction judge an opportunity to elaborate on his conclusion that Trial Counsel’s failure to introduce the child abuse evidence and additional military service evidence did not prejudice Ploof.21 The postconviction judge supplemented his decision, again concluding that the new evidence did not prejudice Ploof.22 We now address Ploofs remaining claims following remand.
II. STANDARD OF REVIEW
We review a Superior Court judge’s decision to deny postconviction relief for an abuse of discretion.23 When deciding legal or constitutional questions, we apply a de novo standard of review.24
III. ANALYSIS
A. Standards for Ineffective Assistance of Counsel
The United States Supreme Court’s Strickland v. Washington decision established a two-pronged test to determine whether a defendant was denied his Sixth Amendment right to effective assistance of counsel.25 To establish Strickland’s first prong, the “defendant must show that counsel’s representation fell below an objective standard of reasonableness.” 26 “Second, the defendant must show that the deficient performance prejudiced the defense.”27 “This requires [852] showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”28
When evaluating an attorney’s conduct, Strickland requires us to use an objective standard of reasonableness based on “prevailing professional norms.”29 We must strive to eliminate the distorting effects of hindsight and “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”30
A defendant must also establish, in order to show prejudice, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”31 To establish a reasonable probability of a different result, the defendant must show a “probability sufficient to undermine confidence in the outcome,” a standard lower than “more likely than not.”32 “[T]he difference between Strickland’s prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’ The likelihood of a different result must be substantial, not just conceivable.”33
B. Did Trial Counsel’s Investigation Fall Below an Objective Standard of Reasonableness ?
1. Counsel’s Duties During the Pen-altg Phase of a Capital Trial
When evaluating whether an attorney’s actions fell below an objective standard of reasonableness, the United States Supreme Court has noted that American Bar Association (ABA) standards “are guides to determining what is reasonable,” but only guides.34 If an attorney makes a strategic choice “after thorough investigation of law and facts relevant to plausible options,” that decision is “virtually unchallengeable” and “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” 35 That Court has found attorneys deficient, however, where they “abandoned their investigation of [a petitioner’s] background after having acquired only rudimentary knowledge of his history from a narrow set of sources.”36
Furthermore, “[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.”37 “[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.”38
[853] The United States Supreme Court has recognized that defense attorneys are “ob-ligat[ed] to conduct a thorough investigation of the defendant’s background” when preparing for the penalty phase of a murder trial.39 The 1989 American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (the 1989 ABA Guidelines) state that the “investigation should comprise efforts to discover all reasonably available mitigating evidence.”40 The 1989 ABA Guidelines advise counsel to “[c]ollect information relevant to the sentencing phase of trial, including,” among other things, “family and social history (including physical, sexual or emotional abuse).”41
2. Trial Counsel’s Failure to Further Investigate Certain “Red Flags” Fell Below an Objective Standard of Reasonableness
In this case, Trial Counsel interviewed Gerald, Shirley, and Ploof.42 Ploof described a “fíne and uneventful” childhood, and Gerald and Shirley similarly reported a “normal, happy childhood.” Ploofs personality and psychological evaluations revealed no problems. Athough Trial Counsel obtained Ploofs school, criminal, and employment records, she did not further examine Ploofs upbringing. Having been given no reason to believe that problems existed, Trial Counsel might have made a “reasonable professional judgment” to cease her investigation that would survive scrutiny under Strickland's “strong presumption” that Trial Counsel’s conduct provided reasonable professional assistance.43 If the record contained no more information, we would undoubtedly affirm the postconviction judge’s conclusion that Trial Counsel had no “indication of any problems from any source.”44
But the record before us does not support the postconviction judge’s conclusion. While Trial Counsel was seeking mitigating evidence, she called Gerald at his re[854] quest. During the ensuing conversation, Gerald expressed regret that he had contacted Trial Counsel and told her that he needed to talk with Shirley before deciding whether to discuss “it.” In an email sent after this cryptic conversation, Trial Counsel speculated that “it” might refer to a “family secret[,] ie., abuse.”45 Gerald never elaborated, however, and Trial Counsel never followed up to seek more information from any collateral source. That is especially troubling, because Gerald and Shirley had obvious incentives to hide child abuse and because Ploofs expert testified that people who witness abuse often deny its occurrence.
Equally troublesome is internal correspondence which indicates that Trial Counsel already suspected that there were problems lurking in Ploofs childhood. Although Ploof and his parents reported a normal childhood, Trial Counsel wondered about the impact that the combination of foster children and Kevin’s medical problems had on Ploofs upbringing.
Aside from her suspicions and the troubling conversation with Gerald, Trial Counsel appears to have reviewed an official boarding home study (the “Study”) evaluating the Ploof household. The Study contained the initial evaluation of the Ploof household as well as annual re-certification reports. Because it contained independent evaluations of the Ploof household, the Study was a vital source of unbiased information regarding Ploofs childhood. Although Trial Counsel recalled reviewing the Study’s initial evaluation,46 she did not recall seeing the Study’s final entry, which read:
Worker received notification from [Child Protective Services] that there were 2 separate indicated reports against the Ploofs regarding 2 foster girls in their home. Based on these reports, all of the children in the foster home were removed 3/21/84 and the Ploof boarding home will be closed. A 2843 with an involuntary closing code was sent to Albany 4/2/84.47
Even if Trial Counsel only received the initial evaluation rather than the entire Study, it would have been apparent that the Study was incomplete. Trial Counsel’s obligation to conduct a “thorough investigation of the defendant’s background” should have led her to obtain the complete Study, especially considering Trial Coun[855] sel’s suspicions and Gerald’s reference to an unknown “it” that he refused to discuss. If, however, Trial Counsel had the entire Study but failed to read it, that would clearly breach her obligation to conduct a thorough investigation.48
We acknowledge the need to avoid the distorting effects of hindsight when evaluating Trial Counsel’s performance. Even so, Trial Counsel’s suspicions and the Study, combined with Gerald’s cryptic comments, compel us to conclude that Trial Counsel fell below an objective standard of reasonableness by failing to investigate further the Ploof foster home. We disavow any attempt to create a rigid rule that a defense attorney is ineffective whenever that attorney fails to uncover potential mitigating evidence, no matter how unapparent. We conclude only that, in these specific circumstances, Trial Counsel needed to do more.49 Had Trial Counsel reviewed the complete Study or followed up with Gerald, reasonable investigation would have led Trial Counsel to interview the former foster children and thereby uncover the child abuse evidence. For these reasons, the posteonviction judge erred by concluding that “[i]t cannot be said that [Trial Counsel’s] performance fell below the standard of reasonableness.”50
The postconviction judge’s conclusion — that Trial Counsel’s focus on Ploofs military service excused her failure to investigate the child abuse evidence — does not withstand close scrutiny.51 Although Trial Counsel reasonably concluded that Ploofs military service was useful mitigation evidence, “Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy.”52 Here, because Trial Counsel’s investigation was unreasonable, she never knew about the child abuse evidence, and therefore could not have tactically decided to focus on Ploofs military service. Also, there is no tension between presenting evidence of both Ploofs troubled childhood and his military service that would support the postconviction judge’s conclusion that Trial Counsel reasonably chose between “alternative^].”53
[856] C. Did Trial Counsel’s Failure to Investigate the Child Abuse Evidence Prejudice Ploof?
Our conclusion that Trial Counsel performed deficiently by failing to further investigate signs of trouble in the Ploof foster home does not end the inquiry. Strickland’s two-pronged test requires both deficient performance and resulting prejudice.54 Thus, if Ploof suffered no prejudice from Trial Counsel’s deficiencies, there is no need for a new penalty hearing. Therefore, we next analyze whether Ploof has established prejudice.
I. United States Supreme Court Authority Addressing Prejudice During the Penalty Phase of a Capital Murder Trial
In Ploof I, the trial judge stated that “[t]here are no mitigating circumstances at all which bear upon the particular circumstances or details of the commission of the murder.”55 The trial judge correctly concluded, however, that evidence need not justify or explain the defendant’s actions to be mitigating.56 The United States Supreme Court has held that “evidence about [a] defendant’s background and character is relevant because of the belief ... that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” 57 This evidence allows the jurors and sentencing judge to “humanize [the defendant] or ... accurately gauge his moral culpability.”58
Several United States Supreme Court opinions address the issue of whether an attorney’s failure to introduce certain “humanizing” mitigating evidence prejudiced a habeas petitioner. In Williams v. Taylor, the petitioner murdered a man after the victim refused to lend him a small amount of money.59 To counter aggravating evidence regarding the petitioner’s long history of violent crime (including assault, robbery, and arson), defense counsel pre[857] sented testimony that the defendant was a nice person and that he voluntarily confessed to several unsolved crimes.60 The Court held that the petitioner had been prejudiced by counsel’s failure to introduce evidence that the petitioner’s parents had been imprisoned for criminally neglecting him, evidence of severe physical abuse by the petitioner’s father and while he was in foster care, evidence that the petitioner was borderline mentally disabled, evidence of the defendant’s good conduct while incarcerated, and evidence indicating a low likelihood of future dangerousness.61 The United States Supreme Court noted that the postconviction judge (who presided over the original trial) properly concluded that there was a reasonable probability that the result would have been different.62
In Wiggins v. Smith, the United States Supreme Court again held that an attorney’s inadequate investigation prejudiced a habeas petitioner.63 In Wiggins, the petitioner drowned an elderly woman in the course of ransacking her apartment.64 At the sentencing hearing, the petitioner’s attorney sought to show that the petitioner did not “kill the victim by his own hand,” but counsel did not present significant evidence of the petitioner’s life history.65 Postconviction proceedings revealed that the petitioner’s mother often left him alone
for days, forcing him to eat paint chips and beg for food.66 The petitioner’s mother had sex while her children slept in the same bed, beat the petitioner for breaking into her locked kitchen, and forced his hand against a hot stove, causing a burn that required hospitalization.67 After the petitioner entered foster care, he was physically abused and repeatedly raped by members of several foster families and later by his supervisor at a Job Corps program.68 The Court found that this testimony, combined with the petitioner’s borderline mental disability and homelessness, created a reasonable probability that “at least one juror would have struck a different balance.”69 The Court noted that Maryland’s then-existing death penalty statute required unanimous verdicts before imposing the death penalty, so the vote of one juror could prevent a death sentence.70
The United States Supreme Court also found prejudice in Rompilla v. Beard.
2. Reweighing of the Aggravating Evidence against the Mitigating Evidence Presented at Trial and Discovered in the Postconviction Proceedings
Here, we must determine whether Trial Counsel’s failure to present the mitigation evidence postconviction counsel discovered prejudiced Ploof. To do that we must “reweigh the evidence in aggravation against the totality of available mitigating evidence.”81 We reweigh the evidence to determine whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 82
To impose the death penalty in Delaware, the jurors must find unanimously the existence of a statutory aggravating circumstance.83 When evaluating whether the aggravating circumstances outweigh the mitigating circumstances so as to justify a death sentence, however, the jurors’ vote is only advisory.84 The trial judge who ultimately imposes the sentence need only give the jurors’ recommendation the weight the judge “deem[s is] appropriate.”85 Therefore, the vote of one juror cannot determine or alter the sentencing result.86
[859] i. The Aggravating Circumstances
Here, the murder’s statutory aggravating circumstance was compelling and powerful — the jury unanimously found that Ploof murdered Heidi for pecuniary gain.87 Ploof murdered Heidi to gain $100,000 he believed he would receive from the life insurance policy on Heidi. After the murder, while he was seeking to obtain the insurance proceeds, Ploof attempted to deceive the police and his friends through an escalating series of lies and feigned emotion. This heinous murder had no moral or legal justification. As the trial judge aptly noted, Heidi’s death was “preceded by a course of planning, reflection^ and calculation that makes this murder especially egregious and cold-blooded.”88 Although this murder may have involved fewer aggravating circumstances than some other cases, that does not necessarily reduce the strength of the State’s case. As the United States Supreme Court recently reminded a federal appellate court, the crucial inquiry is not the “number of aggravating factors,” but “their weight,”89
Also weighty are several nonstatutory aggravating circumstances. Ploof murdered his defenseless wife with an execution-style gunshot to the head. There is no evidence that Heidi had done anything to provoke Ploof. Heidi’s death also significantly impacted her family, who love and miss her.
The trial judge also identified other non-statutory aggravating circumstances: Ploofs prison disciplinary record, which included possessing a shank; his criminal record for stealing a tractor and conduct that would have established third-degree assault; and his extramarital affair while in the Air Force.90 The trial judge’s conclusion (which described his weighing process) indicates that he assigned little weight to these circumstances.91 We also conclude that they add negligible weight to the aggravating evidence in this case.
ii. The Mitigating Circumstances
Trial Counsel presented evidence of Ploofs lengthy Air Force career, drawing attention to his overseas deployments, including to Mogadishu, Somalia, and his involvement in Operations Desert Storm and Joint Endeavor.92 The jurors and trial judge knew about Ploofs good reputation, his numerous commendations, and his service overseas — such as assisting in the launch of over 3,000 missions in Operation Desert Storm. Although Ploofs postcon-[860] viction counsel presented more colorful, detailed evidence of Ploof s duties, awards, performance reports, and overseas deployments, that evidence was largely cumulative of the evidence presented at trial. The record supports the postconviction judge’s conclusion that the new evidence generally added “[a] few more details” to the trial testimony.93 Ploof s briefing evidences the cumulative nature of the post-conviction testimony by highlighting post-conviction testimony that mirrors the trial record.94 After hearing the trial testimony, the jurors found it insufficient to ameliorate the aggravating circumstances. The trial judge found the mitigating evidence collectively “insubstantial” when compared with the aggravating evidence.95 While the postconviction testimony was more colorful and descriptive, we cannot conclude that it added measurably to the weight that the jurors and sentencing judge gave the trial testimony.
We next turn to the child abuse evidence. The significant child abuse evidence divides into three categories, (1) Gerald’s physical abuse, (2) Shirley’s physical abuse, and (3) Gerald’s sexual abuse. We address each in turn.
Ploof presented evidence that Gerald frequently beat him during his late teenage years and early adulthood. Deyo, Paradowski, and Goodwin heard Gerald beat Ploof, though only Goodwin ever saw Gerald strike Ploof. Deyo and Goodwin indicated that Gerald beat Ploof with his hands, though Paradowski indicated that Gerald would use a belt. Three of the former foster girls stated that the beatings occurred frequently. Goodwin saw Gerald throw Ploof down a flight of stairs once. Goodwin also saw Gerald beat Shirley while fighting with her over his affair with a sixteen-year-old babysitter.
Although Trial Counsel did not discover Gerald’s abuse, the jurors and sentencing judge heard evidence that Shirley slapped her children. During the trial’s penalty phase, Shirley admitted hitting Ploof and Kevin, noting that “if they asked for a slap, they got it.” Shirley also admitted spanking the foster girls. The new evidence indicates that Shirley was a cold, strict, perfectionist who at one point slapped two foster girls and hit a third in the stomach. Shirley also bent Kevin’s arm back when she was angry with him, breaking it on one occasion.
The evidence of Shirley once slapping two foster girls and hitting a third is not of material value, because Shirley had already admitted to slapping Ploof and Kevin at trial. Adding new testimony that Shirley also slapped or hit three foster girls once in the course of several years adds little to the evidentiary mix. More significant is evidence that Shirley bent Kevin’s arm back and once broke his arm, but neither former foster girl who witnessed this abuse testified that Ploof was aware of it.
The final component of the child abuse evidence is Gerald’s sexual abuse. The former foster girls’ testimony regarding that abuse covers a broad range. Williams described Gerald’s “creepy vibe” and claimed he flirted with another child whom he sat on his lap. Ruhmshottel noticed only that, after she became pregnant, Ger-[861] aid began sitting in a manner that allowed her to see his genitals. When asked whether Ploof “follow[ed] this kind of behavior,” Ruhmshottel vaguely replied, “I think one time I noticed it.” Miller recalled only one incident involving Gerald during her five years in the home, in which Gerald exposed himself to her and asked her to touch his genitals. Miller did not think Ploof knew about this incident. Deyo testified that Gerald walked around in his underwear in front of her and touched her breasts and buttocks. Ploof, then nineteen years old, knew of that behavior and warned Deyo to avoid Gerald. Paradowski’s testimony was similar — Gerald rubbed his underwear-covered genitals against her and reached his hand across her breasts, and he also offered Paradow-ski money for oral sex. Paradowski stated, however, that Ploof did not witness any of Gerald’s improper conduct toward her.
Goodwin’s allegations are much more severe than the other girls’ descriptions. She alleged that Gerald raped her dozens of times, and that she witnessed two other girls engaging in similar conduct. She noted that Ploof knew of this abuse and that he comforted her. Ploof was near adulthood or an adult at the time of these events.
In determining whether the child abuse evidence would have created a reasonable probability of a different sentencing result, we note first, the former foster girls’ testimony about Gerald’s abuse of Ploof (as distinguished from the former foster girls) is far less severe than the evidence in Williams, Wiggins, and Rompilla, which involved abuse of the petitioner himself. In Williams, the petitioner presented evidence that his father “severely and repeatedly” beat him, and that foster parents abused him while his parents were incarcerated for criminal neglect of their children. The Wiggins petitioner’s mother beat him for breaking into her locked kitchen and multiple foster parents also physically abused him. In addition to the physical abuse, the Wiggins petitioner was repeatedly raped or sexually abused in multiple foster homes and in the Job Corps, including multiple gang rapes. In Rompilla, the petitioner’s father would lock him in a feces-filled dog pen and beat the petitioner with a variety of implements when he was very young. Here, in contrast, three of the six former foster girls testified that Gerald beat Ploof — with his hand or a belt. But, there is no testimony or medical record indicating that these beatings led to scars or bruises. Testimony that Gerald once threw Ploof down a flight of stairs is more significant, but there is no evidence that this occurred more than once. The three former foster girls who saw Gerald abuse Ploof testified that Ploof was at or near adulthood while they lived in the house. That is, this physical abuse did not occur in early childhood. Nor is there any testimony that Ploofs parents ever sexually abused him, unlike the Wiggins petitioner’s horrific experience.
Unlike Gerald and Shirley, the Williams, Wiggins, and Rompilla petitioners’ parents severely neglected their children. The petitioner’s parents in Williams neglected him so severely that they were imprisoned for their conduct. As the United States Supreme Court noted, the Williams petitioner’s home was covered in trash and excrement, his parents were so intoxicated that they could neither find clothes for their children nor dress them, and the children themselves had to be hospitalized because several were under the influence of whiskey. The Wiggins petitioner’s mother abandoned him for days, forcing him to beg and eat paint chips to survive. In Rompilla, the petitioner attended school in rags, lived [862] without indoor plumbing, slept without heat, and could not visit other children or speak to anyone by phone. The former foster girls’ descriptions of a cold, strict Ploof home falls short of the striking de-pravation the United States Supreme Court found existed in Williams, Wiggins, and Rompilla.
Also absent here is evidence of the mental problems the Court found in Williams, Wiggins, and Rompilla.
Ploofs new evidence that Gerald and Shirley physically abused people other than Ploof is similarly distinguishable from the facts implicated in United States Supreme Court case law. Evidence that Gerald beat Shirley during an argument regarding Gerald’s affair and that Shirley slapped the children, hit one child twice, and once broke Kevin’s arm by bending it back, while inexcusable is far less severe than the evidence of abuse the Supreme Court confronted in Rompilla. The Rom-pilla petitioner’s father’s “frequent” beatings left his mother “bruised and black-eyed,” and his mother stabbed his father. Gerald’s and Shirley’s conduct, although deplorable, does not compare in either frequency or severity.
The evidence that Gerald engaged in varying degrees of sexual misconduct with the foster girls and that he raped Goodwin was not present in Williams or Rompilla. Although the Wiggins petitioner’s father and several foster families sexually abused him, the evidence of Gerald’s misconduct are of lesser mitigating value to Ploof, because Gerald’s sexual abuse did not directly involve Ploof.97 Evidence that a [863] defendant suffered sexual abuse presents a weightier mitigation case than evidence that other children were abused. That is especially so where, as here, the testimony suggests that Ploof was unaware of much of Gerald’s sexual abuse of the foster children. In Phillips v. Bradshaw, the Sixth Circuit emphasized this distinction, in holding that a petitioner had not been prejudiced by his counsel’s failure to introduce evidence that his father had severely physically and sexually abused his stepsi-blings.98 The court noted that “[t]he overwhelming majority of the additional evidence is evidence of physical and sexual abuse of [the petitioner’s] siblings, namely, his half-siblings. There was evidence that [the petitioner’s] father sexually abused [his stepsisters] on numerous occasions, but the evidence of sexual abuse of [the petitioner] personally was virtually nonexistent.” 99 Again, and to be sure, this does not diminish the gravity of Gerald’s alleged rapes of Goodwin, which the postconviction judge properly described as “extreme and vile,”100 or his misconduct toward the other foster girls. When reweighing the evidence, however, we must keep in mind that Ploof is the defendant, not the former foster girls.
The child abuse evidence’s significance is further attenuated by the years that had elapsed since the alleged abuse occurred.101 Ploof joined the Air Force upon reaching adulthood, and he served for nearly twenty years before murdering Heidi. Both Trial Counsel and postconviction counsel emphasized Ploof s Air Force record. Although Stewart testified that Ploof s successful career was still consistent with growing up in an abusive home, the child abuse evidence carries diminished force as the years pass. As the Eleventh Circuit recognized in Callahan v. Campbell, “[w]hen a defendant is several decades removed from the abuse being offered as mitigation evidence[,] its value is minimal.”102 We do not brush aside the child abuse evidence as irrelevant. Indeed, the United States Supreme Court has admonished against that.103 We note only that the evidence’s humanizing effect is lessened by the passage of time. That is especially true in this case where there is no discernible relationship between the childhood abuse and Ploofs decision two decades later to murder his wife to obtain $100,OOO.104
[864] iii. Reweighing the Aggravating Circumstances Against All the Mitigating Circumstances Does Not Establish a Reasonable Probability of a Different Result
Having incorporated and reviewed the evidence that postconviction counsel’s multiyear investigation uncovered, we conclude that the petitioner has not established a reasonable probability that the penalty hearing’s result would have been different. Ploof experienced a troubled childhood. After the family opened the home to foster children beginning when Ploof was seven, Ploof s father Gerald engaged in sexual misconduct with several foster girls, although the extent to which Ploof knew of that misconduct is far from clear. When Ploof neared adulthood, he learned that his father would orally and anally rape Goodwin. He also became aware of Gerald’s abuse of other foster girls. Ploof grew up with a severely disabled brother, whose arm his mother once broke by bending it back. During Ploof s early adult years, Gerald frequently beat him with a fist and a belt, although no witness testified they observed bruises. Shirley was cold and strict, and occasionally slapped Ploof and the foster girls.
Ploof joined the Air Force soon after reaching adulthood. He had a commendable military career and served his country overseas as a skilled aircraft mechanic. Ploof spent nearly twenty years in the military. His overseas service included several high-stress combat operations, for which he was decorated, though his personal life occasionally affected his work. Despite a minor criminal record and the possession of a shank while in prison, Ploof generally remained law-abiding — until Heidi’s murder.
In 2001, however, Ploof murdered his defenseless wife with a close-range shot to her head in a Dover Wal-Mart parking lot. He timed the killing to be shortly after an Air Force life insurance policy on Heidi came into effect. Ploof had chosen to spend the rest of his life with another woman, but instead of divorcing Heidi, he decided to kill her in order to obtain the $100,000 of insurance proceeds. Heidi did nothing to provoke that heinous crime and Ploof claims no moral or legal justification for it. Ploof revealed his cold-blooded nature after murdering Heidi, by immediately carrying out an elaborate scheme to mislead the police and hide the incriminating evidence, all while making inquiries concerning the life insurance. Although Ploof expressed his remorse to the jury after the penalty hearing, he also feigned sadness while attempting to mislead the police and his friends to believe that Heidi had committed suicide.
The aggravating circumstances in this case are powerful, and we cannot conclude that there is a reasonable probability that the sum total of the mitigating evidence would lead a reasonable sentencing judge or jury to a different result. The child abuse evidence has no nexus to the murder105 or Ploofs motivations for it. [865] Nor is it comparable with the humanizing evidence that caused the United States Supreme Court to find prejudice in Williams, Wiggins, and Rompilla. The child abuse evidence occurred decades before the murder, and Ploof suffered from no psychological or mental problems having any bearing on the crime. The significant abuse largely involved persons other than Ploof, and several witnesses testified that Ploof remained unaware of much of that misconduct. Finally, the physical abuse Ploof himself suffered differed by an order of magnitude from the abuse evidence the United States Supreme Court found to be prejudicial in Williams, Wiggins, and Rompilla. Far from being on all fours with those cases, the new evidence Ploof presents pales in comparison. We recognize that the Court never stated that Williams, Wiggins, and Rompilla represented the minimum level of prejudice required to establish ineffective assistance of counsel. But by the same token, the Court has never articulated a rule or principle that any undiscovered child abuse evidence ipso facto requires a new penalty hearing.
The jury’s unanimous recommendation supports our conclusion. The trial judge considered the jury’s recommendation. He also independently concluded that the postconviction evidence presented at trial was “insubstantial” in light of the aggravating evidence.106 That indicates that the balance of aggravating and mitigating evidence was not near equipoise — a circumstance that, in other situations, might allow relatively weak additional evidence to “tip” the proverbial scales and establish a reasonable probability of a different result.107 Even if the new evidence created a reasonable probability that one juror would have switched sides — and we cannot conclude that it would have — the remaining jurors would have still overwhelmingly recommended the death penalty.108
Shorn of its rhetoric, Ploofs argument is implicitly and essentially that undiscovered evidence of child abuse always mandates a new penalty hearing. In our view, no reasonable reading of Williams, Wiggins, Rompilla, and their progeny supports this argument. Rather, newly discovered mitigating evidence must be scrutinized through Strickland’s framework, under which constitutional prejudice can be found only if the new evidence creates a “reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”109 Despite postcon-viction counsel’s commendable efforts, the new evidence falls far short of the standard the United States Supreme Court’s case law establishes.110 Although the [866] child abuse evidence and additional military service details may arguably have had “some conceivable effect on the outcome of the proceeding,”111 Strickland and its progeny require more. We cannot discern a “reasonable probability” that the addition of the child abuse evidence, plus additional details regarding Ploofs military service “would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed.”112
In some cases, a defendant’s tragic childhood may make all the difference, even cases that involve violent, cruel, or, as here, cold-blooded murders for pecuniary gain. Rompilla and Wiggins both involved highly inflammatory murders, yet in both cases the United States Supreme Court found prejudice.113 Each case will necessarily be fact specific. We do not hold that certain murders are by their nature so egregious that humanizing evidence will never establish prejudice. We hold only that the child abuse evidence’s relative weakness in this case, considering these aggravating circumstances, does not.
D. Other Penalty Phase Claims
In his Opening Brief, Ploof also briefly notes two other penalty phase claims raised before the Superior Court and attempts to incorporate his Superior Court briefing by reference.114 The claims — Trial Counsel’s failure to renew an objection to evidence of an unadjudicated crime admitted during the penalty phase and Ploofs mental health expert’s failure to provide competent assistance — are described only in explanatory parentheticals following Ploofs citation to his Appendix. As we explained in Ploof IV, this type of argument violates Supreme Court Rule 14, which deems arguments waived if the appellant does not argue their merits within the body of his opening brief.115 Ploof presents no authority to support his argument, does not address the postconviction judge’s decision (or indicate how the judge erred), and does not even describe the alleged deficiencies.116 Ploof has waived these issues and we therefore will not address them.
E. The Dissent
The dissent accurately notes that:
On November 3, 2011, Ploof shot and killed his wife Heidi with a single bullet to her head in the parking lot of the Dover Wal-Mart. Ploof planned to take the money from a life insurance policy on Heidi that had just come into effect and start a new life with his mistress.
[867] After murdering his wife, Ploof hid the murder weapon and attempted to mislead the police by making phone calls pretending that he did not know why his wife was home late from work. Police arrested Ploof the following day and he was indicted by a grand jury on the charges of Murder in the First Degree and Possession of a Firearm During the Commission of a Felony.
Ploof pled not guilty, and he claimed that his wife had committed suicide in his presence in the parking lot.117
A jury convicted Ploof of both charges and at the penalty phase of the trial found unanimously that Ploof murdered his wife for pecuniary gain — a statutory aggravating factor which made Ploof eligible for the death penalty.118
Against the above backdrop, the dissent weighs the additional mitigating evidence stemming from Ploof s dysfunctional childhood home against the aggravating factors. The dissent concludes that there is a reasonable probability that a reasonable sen-tencer would decide that the mitigating evidence properly admitted would outweigh the aggravating factors and result in the imposition of a life sentence.
We will now explain why we cannot join the dissent’s ultimate conclusion.
First, the Dissent concludes its thoughtful and measured analysis by stating that: “This is a classic situation where a reasonable jury and sentencing judge could consider the entire record [the Rule 61 record] and reach a reasoned determination to give either a life or a death sentence.”119 That conclusion highlights the heart of our differences. The dissent also states that:
When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.120
The Majority Opinion focuses on whether the additional postconviction hearing mitigation evidence would have — not could have or might have or it is possible that [it would have] — resulted in a rebalance of the aggravating and mitigating evidence such that death was not warranted. We cannot agree that the Dissent correctly states the law or our role as an appellate court.
Second, we agree with the Dissent that the Strickland standard is not “mathematically precise.”121 We disagree, however, with the suggestion that an appellate court analyzing the prejudice standard must find prejudice when given additional mitigating evidence that “could” make a difference. Were we to accept this position, the outcome that “would” occur becomes the functional equivalent of equipoise and the tie goes to the runner.
This Court should — indeed, must — adhere to the words articulated by the United States Supreme Court in Strickland. It is not appropriate for us, nor are we free, to recraft the standard to make it more to our liking. We, as noted supra, have reviewed the aggravating factors in light of the new mitigating evidence and conclude that there is no reasonable probability that a sentencing judge would have concluded that the balance of aggra[868] vating and mitigating circumstances did not warrant death. We so conclude after “reweigh[ing] the evidence in aggravation against the totality of available mitigating evidence”122 in the postconviction relief hearing.
Moreover, we focus solely on the facts actually presented at the hearing, as we believe a reasonable sentencing judge must do, rather than speculate about what might be believed or what might have occurred, despite the absence of record support. An illustrative example of how the Majority Opinion and the Dissent differ is over the harsh fact that Gerald threw or pushed Ploof down the stairs in the home. We consider that fact as one incident, as it is the only one the record documents. Nevertheless, the Dissent suggests the Majority Opinion look beyond the record and infer, as the Dissent does, that if it happened once, it must have happened frequently.123 Neither we, nor in our view, any reasonable sentencing judge, would or should draw that inference. We remain confident that if a court limits its reasonable inferences to the facts that the record actually documents, there is no probability that a reasonable sentencing judge would (not “could”) conclude, after weighing the aggravating and mitigating circumstances, that Ploof did not warrant the death penalty. The likelihood of a different result might be “conceivable” if the sentencer (like the Dissent) drew every possible inference from the facts in the defendant’s favor — however, such a likelihood falls well short of “substantial.”124 Both the Majority Opinion and the Dissent struggle to adapt the facts to a standard woefully lacking in precision. The Majority Opinion concludes, however, that finding prejudice sufficient to warrant a new penalty hearing under the Strickland standard requires more than a finding that it is “conceivable” that a reasonable sentencer rebalancing the new mix of mitigating factors against the aggravating factors would conclude that a death sentence was not warranted.
CONCLUSION
For these reasons, we AFFIRM the Superior Court’s denial of Ploof s motion for postconviction relief. Jurisdiction is not retained.
Footnotes
75 A.3d 840 (Ploof v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.