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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Submitted: November 1 8 , 2021 Decided: November 18, 2021 Written Order Issued: December 7 , 2021 Withdrawn and Reissued with Correct ions: December 8, 2021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. B erry,

1 State v. Dale , 2021 WL 5232344, at *1 (Del. Super. Ct. Nov. 10, 2021).- 2

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fatally. 2 The incident was recorded on the Printz Market’s several in

- store and

outdoor surveillance camera s , 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 hi s 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 e ither 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 Depar tment 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

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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 particip ation in the robbery, pleaded guilty to an attempted murder count, and
agreed to testify in the trial s of Messrs. Dale and Brittingham. 8 Mr. Brittingham has
also since entered into a plea agreement
, is currently awaiting sentencing , and is now expected t o 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 mu r der

. 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 f

elony m urder count

. 11 The State filed its r esponse

thereto 12 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 2 5, 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

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(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 murd er 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 f elony

- m urder charge should also be time

barred

. 14

ANALYSIS

- T HE P LAIN L ANGUAGE OF 11 D EL
. C. § 205 A LLOWS THE I NITIATION OF A F ELONY M URDER P ROSECUTION “A T A NY T IME . ”
(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 D EL

. C ODE A NN . tit. 11, § 205(a) (2012) (Time limitations)

.

16 Id. § 205(b)(1) (emphasis added)

.

17 D EL

. C ODE A NN . tit. 11, § 636 (2012) (Murder in the first degree; class A felony).- 5

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[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 a ny 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 D EL

. L AWS . ch. 246, synopsis (2004)).- 6

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thereof is best un derstood 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 t he Delaware Supreme

Court has never squarely addressed this precise question. 23 But it has been asked of

and answered by a n y 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 depende nt 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 “i s a specific offense that is separate from the underlying felony, [ ] the running of the statute of limitations on the underlying felon y does not extinguish the [felony] murder charge”).- 7

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subordinate crime because of a time limitation has no effect upon the question of

whether such crime was committed. The crime of murde r 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 C ourt 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, l ikewise, 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.”)

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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 ne ver been mention of some requirement that the accused must be still subject to successful prosecution for th e specific felony he was engaged in the commission of, attempting to commit, or in
flight after committing or attempting to commit

. H e 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. D ale’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, 32 5 (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

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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 o f the Indictment that charges him with first

- degree f elony m urder 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