State v. Dale ( 2021 )


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  •         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    STATE OF DELAWARE,                                   )
    )
    v.                                           )     ID. No. 1909010294
    )
    ANTHONY DALE,                                        )
    Defendant.          )
    Submitted: November 18, 2021
    Decided: November 18, 2021
    Written Order Issued: December 7, 2021
    Withdrawn and Reissued with Corrections: December 8, 2021
    ORDER
    Upon Defendant Anthony Dale’s Motion to Dismiss Count III of the Indictment,
    DENIED.
    Upon consideration of Defendant Anthony Dale’s Motion to Dismiss Count
    III of the Indictment (D.I. 56), the State’s response thereto (D.I. 60), the parties’
    arguments at hearing of the motion, and the record in this case, it appears to the
    Court that:
    FACTUAL AND PROCEDURAL BACKGROUND
    (1)     On June 7, 2013, Anthony Berry was working behind the deli counter
    of the Printz Market in Wilmington when the store was robbed at gunpoint.1 During
    the robbery, two Printz Market employees were shot—one of them, Mr. Berry,
    1
    State v. Dale, 
    2021 WL 5232344
    , at *1 (Del. Super. Ct. Nov. 10, 2021).
    -1-
    fatally.2 The incident was recorded on the Printz Market’s several in-store and
    outdoor surveillance cameras, but the identities of the three hooded assailants
    captured on video could not be ascertained.3
    (2)   On June 19, 2013, Mr. Dale was arrested by the Wilmington Police
    Department for an unrelated firearms charge.4 When questioned, Mr. Dale told
    police that his cousin, Maleke Brittingham, had borrowed his firearm and implicated
    Mr. Brittingham in the Printz Market shooting.5 Police subsequently searched both
    Mr. Brittingham’s and Mr. Dale’s apartments, but no more evidence was found then
    that linked either of them to the slaying of Anthony Berry.6
    (3)   After those fruitless searches, the case went cold for about five years
    when, in May of 2018, police had occasion to interview Indi Islam.7 Ms. Islam had
    numerous conversations with Wilmington Police Department investigators during
    the summer of 2018 that ultimately led to her admitting her part as getaway driver
    in the 2013 Printz Market robbery. During Ms. Islam’s several interviews with
    2
    
    Id.
    3
    
    Id.
    4
    
    Id.
    5
    
    Id.
    6
    
    Id.
    7
    
    Id.
    -2-
    investigators, she identified and described Mr. Dale’s, Mr. Brittingham’s, and the
    third assailant’s involvement in the robbery-homicide. Ms. Islam was charged for
    her participation in the robbery, pleaded guilty to an attempted murder count, and
    agreed to testify in the trials of Messrs. Dale and Brittingham.8 Mr. Brittingham has
    also since entered into a plea agreement, is currently awaiting sentencing, and is now
    expected to be a witness for the prosecution.9
    (4)     That leaves Mr. Dale—whom the State alleges to be the fatal shooter—
    as the sole defendant to be tried in this matter. He has been charged with two counts
    of first-degree murder—alleging intentional and felony murder for Mr. Berry’s
    death—and one count of attempted first-degree murder.10
    MR. DALE’S MOTION TO DISMISS
    COUNT III OF THE INDICTMENT
    (5)     As trial loomed, Mr. Dale filed this instant Motion to Dismiss Count III
    of the indictment—that is, the felony murder count.11 The State filed its response
    thereto12 and the Court heard argument on this point of law.
    8
    Plea Agreement and TIS Guilty Plea Form, State v. Indi Islam, ID No. 1904020331 (Del.
    Super. Ct. Sept. 19, 2019) (D.I. 16).
    9
    Plea Agreement and TIS Guilty Plea Form, State v. Maleke Brittingham, ID No. 1909010295
    (Del. Super. Ct. June 25, 2020) (D.I. 32).
    10
    See Indictment, State v. Anthony Dale, 
    ID.
     No. 1909010294 (Del. Super. Ct. Sept. 30, 2019)
    (D.I. 2).
    11
    Mot. to Dismiss Count III, November 10, 2021 (D.I. 56).
    12
    State’s Resp. to Mot. to Dismiss Count III, November 16, 2021 (D.I. 60).
    -3-
    (6)     Mr. Dale insists that because he was indicted on the above charges more
    than five years after the Printz Market robbery/homicide occurred, his felony murder
    charge is time-barred under 11 Del. C. § 205(b)(1).13 Says Mr. Dale, given the
    passage of time, the State cannot prosecute him on any underlying robbery charge,
    and so, to him, it follows that the State’s felony-murder charge should also be time-
    barred.14
    ANALYSIS
    - THE PLAIN LANGUAGE OF 11 DEL. C. § 205 ALLOWS THE INITIATION OF
    A FELONY MURDER PROSECUTION “AT ANY TIME.”
    (7)     Section 205(a) permits the “prosecution for murder or any Class A
    felony” to be commenced at any time.15 While, under section 205(b)(1), “[a]
    prosecution for any felony except murder or any class A felony . . . must be
    commenced within 5 years after it is committed.”16
    (8)     Murder in the first degree is a Class A felony in Delaware.17 Under
    11 Del. C. § 636(a)(2), a “person is guilty of murder in the first degree when . . .
    13
    Mot. to Dismiss, p.1.
    14
    Mot. to Dismiss, p.2.
    15
    DEL. CODE ANN. tit. 11, § 205(a) (2012) (Time limitations).
    16
    Id. § 205(b)(1) (emphasis added).
    17
    DEL. CODE ANN. tit. 11, § 636 (2012) (Murder in the first degree; class A felony).
    -4-
    [w]hile engaged in the commission of, or attempt to commit, or flight after
    committing or attempting to commit any felony, the person recklessly causes the
    death of another person.”18
    (9)     Over the last four decades, Delaware’s felony murder statute has
    received careful scrutiny with respect to a killing’s relationship to the commission
    of some other felony.19 At present—and at the time of the crimes alleged here—
    § 636(a)(2) requires that the reckless killing of another occur “while” the accused is
    engaged in any felony.20 And “‘while’ engaged in felonious conduct mean[s] ‘only
    that the killing must be directly associated with the predicate felony as one
    continuous occurrence.’”21 Indeed, the fact that the slaying occurred “[w]hile [an
    accused] engaged in the commission of, or attempt to commit, or flight after
    committing or attempting to commit any felony” is a necessary element that must be
    proven to obtain a felony murder conviction. But that’s all the engaged-in-other-
    felonious-conduct requirement is—an element. And that said, the true operation
    18
    Id., § 636(a)(2) (2012) (felony murder statute).
    19
    See e.g. Weick v. State, 
    420 A.2d 159
     (Del. 1980); Chao v. State, 
    604 A.2d 1351
     (Del. 1992);
    Williams v. State, 
    818 A.2d 906
     (Del. 2002); Comer v. State, 
    977 A.2d 334
     (Del. 2009).
    20
    Comer v. State, 
    977 A.2d at 340
    .
    21
    
    Id.
     (citing 74 DEL. LAWS. ch. 246, synopsis (2004)).
    -5-
    thereof is best understood thusly:
    [T]he felony in felony murder is essential in the sense that if there
    were no felony the defendant could not do anything in the course
    of it, but the felony is only a precondition, not an element of
    independent significance. The real element of felony murder is
    not so much the felony itself as the special status a felon has from
    moment to moment while committing the felony.22
    (10) Now, Mr. Dale is correct when he points out that the Delaware Supreme
    Court has never squarely addressed this precise question.23 But it has been asked of
    and answered by any number of courts in other jurisdictions; the resounding answer
    is that “[t]he running of the statute of limitation on the underlying felony is irrelevant
    to a prosecution for a felony murder.”24
    (11) As explained concisely by one, the Supreme Court of Georgia: “a
    felony murder conviction is not dependent upon the successful prosecution of the
    underlying felony. The mere preclusion of the state’s capacity to prosecute the
    22
    People v. Holt, 
    440 N.E.2d 102
    , 104 (Ill. 1982) (addressing whether Illinois had jurisdiction
    over a given felony murder charge); 
    id. at 105
     (“The felony in a felony murder is the occasion for
    the homicide and colors the way the law will view any homicide that occurs, throwing it
    automatically into the murder category rather than a lower grade; but it is not what murder is
    about.”).
    23
    This Court, though, has issued one very succinct ruling that given the plain language of 11 Del.
    C. § 205(a) mentioned above—“prosecution for murder or any class A felony may be commenced
    at any time”—a felony murder count was not barred by the statute of limitations applicable to the
    underlying felony. State v. Brown, 
    2016 WL 3356938
    , at *7 (Del. Super. Ct. June 2, 2016).
    24
    22A C.J.S. Criminal Procedure and Rights of Accused § 592 (2021); id. (instructing further
    that because felony murder “is a specific offense that is separate from the underlying felony, [ ]
    the running of the statute of limitations on the underlying felony does not extinguish the [felony]
    murder charge”).
    -6-
    subordinate crime because of a time limitation has no effect upon the question of
    whether such crime was committed. The crime of murder is independent of the
    underlying felony. . . . and the fact that [the underlying felony] is time-barred does
    not preclude a prosecution for felony murder.”25 And Georgia certainly is not alone
    on this.26
    (12) For example, the en banc Supreme Court of Washington held that
    “[c]omplying with the underlying felony’s statute of limitation is not a jurisdictional
    prerequisite to prosecuting someone for felony murder.”27 Similarly, the en banc
    Arizona Supreme Court held its state’s felony murder statute “does not require that
    the defendant be charged and convicted of the underlying felony. The jury must
    simply find that the defendant committed or attempted to commit it. Even if the
    statute of limitations has expired on the predicate offense, a defendant may still be
    prosecuted for felony murder.”28 And, likewise, the Superior Court of Pennsylvania
    25
    State v. Jones, 
    553 S.E.2d 612
    , 615 (Ga. 2001) (internal citations omitted).
    26
    State v. Adams, 
    45 N.E.3d 127
    , 145 (Ohio 2015) (“Similarly, our sister high courts have
    uniformly rejected the argument that an aggravated-felony-murder prosecution is time-barred if
    the predicate felonies are time-barred.”) (listing cases).
    27
    State v. Dennison, 
    801 P.2d 193
    , 202 (Wash. 1990) (en banc); see also Jackson v. State, 
    513 So. 2d 1093
    , 1095 (Fla. Dist. Ct. App. 1987).
    28
    State v. Lacy, 
    929 P.2d 1288
    , 1298 (Ariz. 1996) (en banc) (Observing that Arizona’s felony
    murder statute “does not require that the defendant be charged and convicted of the underlying
    felony. The jury must simply find that the defendant committed or attempted to commit it. Even
    if the statute of limitations has expired on the predicate offense, a defendant may still be prosecuted
    for felony murder.”).
    -7-
    held that the running of the statute of limitations on an underlying felony was
    immaterial so long as the essential elements of felony murder were proven beyond
    a reasonable doubt.29
    (13) It makes sense then, that through all the discussion of Delaware’s
    felony murder statute, in its various iterations, there has never been mention of some
    requirement that the accused must be still subject to successful prosecution for the
    specific felony he was engaged in the commission of, attempting to commit, or in
    flight after committing or attempting to commit. He need not be.30 “The mere
    preclusion of the state’s capacity to prosecute the subordinate crime because of a
    time limitation has no effect upon the question of whether such crime was
    committed” and subject to proof as part of a felony murder prosecution.31
    CONCLUSION
    (14) Mr. Dale’s suggestion that he is due dismissal of the felony murder
    count is precluded by the plain language of 11 Del. C. § 205, which allows the
    29
    Commonwealth v. Munchinski, 
    585 A.2d 471
    , 482-83 (Pa. Super. Ct. 1990), appeal denied,
    
    600 A.2d 535
     (Pa. 1991).
    30
    In fact, one need not even be charged with the underlying felony that gives rise to the felony
    murder count. See e.g., People v. Seals, 
    776 N.W.2d 314
    , 325 (Mich. Ct. App. 2009) (“Michigan’s
    felony-murder statute requires only proof that the murder occurred during the commission of a
    specified felony. There is no additional requirement that the defendant be charged and convicted
    of the underlying felony.”) (emphasis in original); Lacy, 929 P.2d at 1298 (A felony murder
    prosecution simply “does not require that the defendant be charged and convicted of the underlying
    felony.”).
    31
    Jackson, 513 So.2d at 1095.
    -8-
    initiation of a felony murder prosecution “at any time.” The crime of first-degree
    felony murder is independent of any underlying felony alleged to support it. So the
    fact that such underlying felony may be time-barred simply does not preclude a
    prosecution for felony murder. Accordingly, Mr. Dale’s Motion to Dismiss Count
    III of the Indictment that charges him with first-degree felony murder must be
    DENIED.
    IT IS SO ORDERED,
    Paul R. Wallace, Judge
    Original to Prothonotary
    cc:   Anthony A. Figliola, Jr., Esq.
    John W. Downs, Esq., Deputy Attorney General
    Marc Petrucci, Esq., Deputy Attorney General
    -9-