-1-

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Withdrawn and Reissued with Corrections: December 8, 2021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).
-2-

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.
-3-

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).
-4-

(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 timebarred.

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).
-5-

[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-otherfelonious-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)).
-6-

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”).
-7-

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.”). 
-8-

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.
-9-

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