Opinion
C.A. No. 75060892DI.
Submitted: September 27, 2007.
Decided: December 11, 2007.
Upon Consideration of Defendant's Pro Se Motion for Postconviction Relief., Cr. A. Nos.: IN75-06-092-R2; 0895-R2; 0900-R2; 0905R2.
ORDER
This 10th day of December, 2007, it appears to the Court that:
1. On March 18, 1976, Sterling Hobbs, now known as Amir Fatir ("Defendant"), was convicted by a jury of Murder First Degree (felony murder), Robbery First Degree, Conspiracy, and Possession of a Deadly Weapon. Defendant was sentenced to life imprisonment without the possibility of parole for the Murder First Degree conviction and an additional 67 years in prison for the remaining three offenses.
See State v. Fatir, 2006 WL 3873238, *1 (Del.Super.Ct. 2006).
Docket Item ("D.I.") 131; D.I. 68-69; D.I. 66-67; D.I. 64-65.
2. Defendant claims that his felony murder conviction should be vacated under the interpretation of 11 Del. C. § 636(a)(2) ("Section 636(a)(2)") set forth in Williams v. State, because the State failed to establish that the murder he committed was "in furtherance of" and "in the course of" the robbery of his victim. Prior to addressing the substantive merits of any claim for postconviction relief, this Court must first determine whether the Defendant has met the procedural requirements of Superior Court Criminal Rule 61 ("Rule 61"). If the procedural requirements of Rule 61 are not met, then this Court will decline to consider the merits of a postconviction claim in order to protect the integrity of the procedural rules.
818 A.2d 906 (Del.Supr. 2002) (holding that a defendant may not be convicted of felony murder unless it has been established that the murder is a consequence of the felony and facilitates the felony).
Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991).
State v. Gattis, 1995 WL 790961, at *2 (Del.Super.Ct. 1995).
3. Rule 61(i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction or within one year of a retroactively applicable right that is recognized by the Supreme Court of Delaware or the United State Supreme Court; (2) any basis for relief must have been asserted previously in any prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formally adjudicated in any proceeding.
If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)).
4. Defendant's claim is time barred because his motion was not timely filed in accordance with Rule 61(i)(1). The Supreme Court of Delaware issued its final order of conviction on May 30, 1980, but Defendant did not file this motion until September 27, 2007, twenty-seven years after his conviction became final. Moreover, the decision upon which defendant has based his motion, Williams v. State, was issued almost five years prior to the filing of this motion. Under any view of Rule 61(i)(1), therefore, the motion is not timely.
See Hooks v. State, 416 A.2d 189 (Del. 1980) (affirming the Superior Court's conviction of the Defendant).
5. Since Defendant's motion is time barred under Rule 61(i)(1), this Court must determine if his claim for relief fits an exception set forth in Rule 61(i)(5). The bars to relief under Rule 61 do not apply "to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."
Super. Ct. Crim. R. 61(i)(5).
6. Defendant has attempted to set forth a colorable claim of a constitutional violation under Rule 61(i)(5) based upon the Supreme Court of Delaware's ruling in Williams v. State. In Williams, the Court revised the interpretation of the "in the course of" and "in furtherance of" language of 11 Del. C. § 636(a)(2) and, in doing so, overruled prior precedent interpreting this fundamental aspect of Delaware's felony murder statute. Accordingly, it is appropriate to consider whether the Defendant's conviction would stand under the current interpretation of felony murder in Delaware.
11 Del. C. § 636(a)(2) (which defines murder first degree as "In the course of an in furtherance of the commission or attempted commission of a felony or intermediate flight therefrom, the person recklessly causes the death of another person.")
Williams, 881 A.2d at 913; The Williams Court overruled Chao v. State, 604 A.2d 1351 (Del.Supr. 1992).
7. Williams relied heavily upon a decision of the Supreme Court of Arkansas in reaching its revised interpretation of the felony murder statute. In Parker, the defendant attempted to kill his victims outside the victims' home. The victims fled into their house and subsequently the defendant committed burglary by unlawfully breaking into their home and killing the victims while they were inside. The Supreme Court of Arkansas overturned the felony murder conviction as a result of its interpretation of a statute similar to the Delaware statute. Specifically, the Court concluded that the statute's use of the phrase "in the course of and in furtherance of the felony," meant that the "murder [must] be committed to facilitate the carrying out of the burglary." The crucial inquiry is whether the murder occurred during the course of the felony and to facilitate the commission of the felony. In other words, the fact-finder must inquire whether the Defendant murdered in order to facilitate the commission of the underlying felonies. The court ultimately concluded that Parker did not commit the murder in furtherance of the felony.
See Parker v. State, 731 S.W.2d 756, 758 (1987).
Williams, 818 A.2d at 913 (citing Parker).
Id.
8. This Court applied the Williams standard in State v. Chao. There, the defendant burned a house down and killed three members of the household. The court explained that the defendant did not kill the occupants of the home in order to further or promote the fire that burned down the house. Instead, the defendant burned down the house as a means to commit the killing.
2006 WL 2788180 (Del.Super. 2006).
Id. at *8.
9. The Defendant in this case clearly committed felony murder. Unlike the defendant in Chao, the jury in this case found that the Defendant murdered his victim to further and promote the robbery. Count I of the indictment charged Murder First Degree, and alleged that Defendant did "feloniously and in the course of and in furtherance of the commission of a felony to wit: Robbery First Degree, recklessly cause the death of Phillip Whiteman, by shooting him with a handgun." Count II charged Robbery First Degree and alleged that Defendant, "in the course of committing theft, use[d] immediate force upon Phillip Whiteman with the intent to prevent resistance to the taking of property . . . [and] shot Phillip Whiteman with a handgun, causing his death."
D.I.1.1
Id. (emphasis added).
10. During its closing argument, the prosecution summed up the State's theory of felony murder as follows:
The next witness was Bryan Scanlon, who made the positive identification of Sterling Hobbs. [Scanlon] was in the store at the far end. . . . He heard a gun shot. I submit to you that Mr. Whiteman, being hard of hearing, had not heard what was going on. Freeze. Mr. Whiteman is turning around with a bottle in his hand, which he's stocking. Perhaps the robber thought that he was making an attacking gesture. The man was shot.
Trial Transcript ("Volume X") at p. X172.
11. On March 18, 1976, a jury convicted Defendant of Robbery First Degree and Murder First Degree as indicted. The jury apparently was convinced beyond a reasonable doubt that Defendant killed Phillip Whiteman not after or incidental to the robbery, but rather during the robbery to prevent Phillip's resistance to the robbery. The murder of Phillip Whiteman occurred "in the course of" and "in furtherance of" the Defendant's robbery of him; it was felony murder as defined by statute and interpreted by Williams.
12. Because Defendant's arguments are without merit, Defendant fails to demonstrate a colorable claim. Therefore, Defendant's motion is procedurally barred by Rule 61.
13. Based on the foregoing, Defendant's motion for postconviction relief is DENIED.
IT IS SO ORDERED.