Opinion
ID No. 88001884.
Submitted: July 10, 2006.
Decided: September 25, 2006.
Upon Consideration of Defendant's Motion for Postconviction Relief.
Bernard J. O'Donnell, Office of Public Defender, New Castle County, State of Delaware, for Defendant.
Loren C. Meyers, Department of Justice, New Castle County, State of Delaware, for the State of Delaware.
INTRODUCTION
Vicky Chao ("Defendant") filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Procedure Rule 61, wherein she seeks to set aside her judgment of criminal convictions for felony murder based on the "newly recognized right" under Williams v. State. In recognizing this right, the Williams Court specifically overruled the opinion of the Court that convicted Defendant Chao for felony murder.
818 A.2d 906 (Del. 2003).
The Superior Court in State v. Chao convicted Defendant based on its reading of the felony murder statute, and the Supreme Court of Delaware reaffirmed this decision by ruling that, "for felony murder liability to attach, a killing need only accompany the commission of an underlying felony." Several years later, the Williams Court overruled the Chao Court stating that, "felony murder cannot attach unless the murder is a consequence of the felony and is intended to help the felony progress." Hence, for the Court to convict a Defendant of felony murder, the Court must also find that the murder helped move the felony forward.
Chao v. State, 604 A.2d 1351 (Del. 1992).
Williams, 818 A.2d at 912.
Following the Williams decision, the Superior Court in State v. Kirk granted the defendant's Motion for Postconviction Relief, and the Supreme Court subsequently confirmed this decision. The Kirk Court held that the felony murder statute recognized by Williams invalidated the defendant's convictions of felony murder. Similar to the case at hand, an arson started by the defendant resulted in the deaths of three people. In Kirk, the defendant argued that the Williams decision "required the vacation of his three felony murder convictions. .". The State conceded to this position.
Kirk v. State, 2005 WL 3526325 (Del.).
Id.
Id. at *1.
Id.
Id.
In her Motion for Postconviction Relief, Defendant Chao, therefore, asserts that the Court should retroactively apply the Williams decision to invalidate her conviction of three counts of felony murder. The Superior Court denied this motion and summarily concluded that reconsideration was not necessary in the "interest of justice". Defendant then appealed this decision to the Supreme Court.
On appeal, the Supreme Court concluded that the Superior Court abused its discretion by abstaining from offering rationale for its decision. The Supreme Court, thereby, remanded this decision and asked the Superior Court to address two issues: 1) Is the Superior Court required to reconsider Chao's felony murder convictions in light of Williams?, and 2) Is the State estopped from arguing against the retroactive application of Williams in light of its contrary position in State v. Kirk?
In response to these questions, the Court has made the following conclusions of law. First, the Superior Court is required to reconsider Chao's felony murder conviction in light of Williams. Second, the State is not estopped from arguing against the retroactive application of Williams in light of its contrary position in State v. Kirk.
FACTS
William Chen ("Chen") immigrated to the United States with his mother in 1978 from China. Although he and his mother first settled in Delaware, Chen moved to New York City to attend college. It was there that he met and became involved in a romantic relationship with the Defendant. Although they never actually lived together, Chen eventually gave the Defendant the keys to his apartment and the two grew close, often spending a great amount of time together. At one point in their relationship the Defendant provided Chen with four thousand dollars enabling him to open his business. Their relationship, however, changed dramatically in 1985 when Chen traveled to China to marry Jing Hong Guo Chen. Upon returning from China with his wife, the couple settled in Claymont, Delaware.During the early morning hours of March 9, 1988, a fatal fire occurred at Chen's Claymont residence. Chen's wife, mother, and daughter were killed in a fire that burned their home. Chen was the sole survivor of those living in the house. During the police investigation, Chen named the Defendant as a person who might have information regarding the crime. Investigators interviewed Chen on three separate occasions on the day of the conflagration. During an interview Chen revealed that he had been involved in a turbulent relationship with the Defendant. He recounted an incident in which the Defendant had him arrested for assaulting her approximately one month prior to the fire. Moreover, Chen indicated that as early as nine days before the fire, the Defendant had been to his Claymont home causing a disturbance. In particular, he claimed that she became embroiled in an argument with both his wife and mother and that she threatened to cause "big trouble" if he didn't "throw his family away" and marry her instead.
State v. Chao, 1989 WL 89691, at *1 (Del.Super.).
Id.
Id.
Id.
Chao v. State, 604 A.2d at 1353.
Id.
Id.
Id.
Id. at 1353-1354.
On March 9, investigators traveled to New York City to question the Defendant. Law enforcement personnel arrived at Defendant's apartment and informed her that they were investigating an "incident." They asked her to accompany them to the 115th Precinct of the New York City Police Department. The Defendant agreed. Eventually, the Defendant announced that she was willing to make a tape-recorded statement. In that statement, the Defendant implicated an individual named Tze Poong Liu ("Liu") as the arsonist. According to the Defendant, she and Chen were mutual acquaintances of Liu. She explained to investigators that Liu wanted to kill Chen and that he forced her to accompany him to Delaware the previous night in a taxicab. She further stated that while traveling to Delaware Liu stopped and filled a plastic container with gasoline. She then claimed that when they arrived at Chen's home she was terrified and waited in the taxi after Liu exited it because he had threatened her. The Defendant stated that when Liu eventually returned to the taxi he exclaimed that he had set fire to the house.
State v. Chao, 1989 WL 89691, at *1.
Id.
Id.
Id.
Id. at *2.
Chao v. State, 604 A.2d at 1355.
Id.
Id.
Id.
Id.
Id.
By the following day, the police had implicated the Defendant in the crime along with Liu. Therefore, they decided to question the Defendant again. The Defendant again made statements containing allegedly inculpatory material. She was arrested several hours later and taken to Queens Criminal Court for arraignment. The police then returned to Delaware with the Defendant. On March 12, 1988, the Defendant was arraigned in Delaware.
State v. Chao, 1989 WL 89691, at *2.
Id.
Id.
Id.
Id.
Id. at *3.
According to expert testimony offered at trial in 1989, the investigation revealed that gasoline had been poured in three separate areas of the house, and a "very intense, fast-burning fire" had been set at each location. Given the strategic placement of the gasoline, investigators concluded that the fires had been specifically set so as to deny the occupants of the house a route of escape. The State rebutted the Defendant's account of her victimized bystander role in the arson-murder with evidence portraying her as a vengeful woman scorned. The prosecution argued that the Defendant had become distraught over Chen's refusal to leave his family and was jealous of the life he made for himself in Delaware. Consequently, the State argued that she acted upon these emotions by soliciting Liu, another suitor, to help her seek retribution against Chen.
Chao v. State, 604 A.2d at 1353.
Id.
Id. at 1355.
Id.
Id.
On August 14, 1989, the jury convicted the Defendant of six counts of Murder in the First Degree, 11 Del. C. §§ 636(a)(1), 636(a)(2); one count of Attempted Murder in the First Degree, 11 Del. C. § 531; one count of Arson in the First Degree, 11 Del. C. § 803(2); one count of Burglary in the First Degree, 11 Del. C. § 826; two counts of Conspiracy in the First Degree, 11 Del. C. § 513; and one count of Conspiracy in the Second Degree, 11 Del. C. § 512. A penalty hearing was held at which the jury found the existence of two statutory aggravating circumstances beyond a reasonable doubt, but did not unanimously find that the statutory circumstances outweighed the mitigating circumstances.
Id. at 1352.
State v. Chao, 1995 WL 862121 (Del.Super.).
On September 8, 1989, the Defendant filed a motion for new trial. The Superior Court denied Defendant's motion on March 29, 1990. The Defendant was sentenced on May 24, 1990 to seven consecutive terms of life imprisonment to be served without probation or parole or any other reduction, 11 Del. C. § 4209, and fifteen years' imprisonment.
State v. Chao, 1990 WL 47367 (Del.Super.).
Id.
Chao v. State, 604 A.2d at 1352-1353.
On January 7, 1992, the Defendant filed an appeal in the Supreme Court raising several claims, including an allegation that the Court abused its discretion in sentencing her to six life terms on the basis of convictions of both intentional murder, 11 Del. C. § 636(a)(1), and felony murder, 11 Del. C. § 636(a)(2) for each of three victims. The Defendant also alleged that there was insufficient evidence to establish her guilt of intentional murder and felony murder beyond a reasonable doubt. Specifically, she argued that since all of the State's evidence indicated that she intended to kill the Chens by setting their house on fire, no rational juror could infer that the killings were caused "in furtherance of the commission" of arson, a felony. The Delaware Supreme Court held that, in order "[f]or felony murder liability to attach, a killing need only accompany the commission of an underlying felony. Thus, if the `in furtherance' language has any limiting effect, it is solely to require that the killing be done by the felon, him or himself." The Court cited Weick v. State for support, without overruling that portion of Weick requiring that death be a consequence of the felony and not a coincidence of it. Defendant's convictions were affirmed by the Supreme Court on January 29, 1992.
Id. at 1353.
Id.
Id. at 1362-1363. 11 Del. C. § 636(a)(2) defining felony murder states: "A person is guilty of murder in the first degree when . . . in the course of and in furtherance of the commission or attempted commission of a felony or immediate flight therefrom, the person recklessly causes the death of another person."
Id. at 1363.
Id.
420 A.2d 159 (Del. 1980).
Chao v. State, 604 A.2d 1351.
Shortly thereafter, Defendant filed a Rule 61 Motion for Postconviction Relief on the ground of ineffective assistance of counsel and moved for a new trial on the ground that Chen testified and admitted at the co-defendant's trial that he had previously lied under oath at defendant's trial. Given that the State had made much of motive in this case, the Court found that if Chen's perjured testimony had been corrected, he might also have had a motive for committing the crimes. The jury would have heard that the love affair had not ended after his marriage and that they continued to have sexual relations in 1985, 1986 and 1987. In addition, he would have stated that instead of occasional trips to New York, he stayed at the Defendant's apartment for as long as two months as late as the Fall of 1987. The significance of the true testimony was that the jury could have discerned a possible motive on the part of Chen to be rid of his family. As a result of the perjured testimony, the Court granted Defendant's motion for a new trial on February 17, 1995. The Court did not reach her claim of ineffective assistance of counsel holding instead that the claim was rendered moot by its decision to order a new trial.
State v. Chao, 1995 WL 412364 (Del.Super.).
Id. at *5.
Id.
Id.
Id.
Id. at *6.
Chao v. State, 1998 WL 112527 (Del.Supr.).
The Defendant's second trial began in October 1995. The jury acquitted the Defendant of her intentional murder charge and convicted her of three counts of Felony murder and various other offenses. In December 1995, the Superior Court sentenced the Defendant to three consecutive life sentences. On November 24, 1997, the Defendant filed an appeal to the Supreme Court. She argued that the Court erred in failing to reach the merits of her ineffective-assistance claim. The Supreme Court agreed, and therefore, remanded the case for consideration of the Defendant's allegations that her original trial counsel was ineffective. The Superior Court held that the Defendant had failed to satisfy her duty under Strickland v. Washington of establishing prejudice from counsel's error. The Supreme Court affirmed the Defendant's conviction and sentence on January 23, 1998. However, after Defendant's new appellate counsel discovered that the Supreme Court had not ruled on two issues that Defendant had raised in her direct appeal, the Supreme Court recalled the mandate on her case in order to decide those issues.
Id. at *1.
Id.
Id.
Id.
Id.
Id.
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Chao v. State, 1998 WL 112527, at *2.
Id.
State v. Chao, 2002 WL 31007908, at *1 (Del.Super.).
Defendant filed a Motion for Postconviction Relief on May 22, 2002, asserting four claims upon which relief could have been granted including violation of her Fourth Amendment rights and specific allegations of ineffective assistance of counsel. On August 22, 2002, Defendant's Motion for Postconviction Relief was denied.
Id.
Id.
After the Court issued its opinion in Williams, the Defendant, acting pro se, filed a Motion for Postconviction Relief on September 16, 2004, arguing that the Court's decision in that case should be applied retroactively to invalidate her conviction of three counts of felony murder. The Superior Court did not explicitly address the Defendant's argument that reconsideration of her claim was warranted based on the Court's ruling in Williams. On September 24, 2004, the Superior Court summarily concluded that reconsideration was not necessary in the "interest of justice." The Defendant filed an appeal. On April 13, 2006, the Supreme Court concluded that, in the absence of a rationale, the Superior Court abused its discretion when it summarily denied the Defendant's motion.
State v. Chao, 2004 WL 2153698 (Del.Super.).
State v. Chao, 2006 WL 1073069, at *2 (Del.Supr.).
Id.
Id. at *1.
The Supreme Court, therefore, reversed the judgment of the Superior Court and remanded this matter for further proceedings. In addition, the Supreme Court asked the Superior Court to hold a hearing and issue its findings on two questions of law. However, both parties have stipulated that a hearing is not necessary.
APPLICABLE PROCEDURAL BARS
Under Delaware law, when considering a motion for postconviction relief, this Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of defendant's postconviction relief claim. To protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim where a procedural bar exists.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Gattis, 1995 WL 790961, at *3 (citing Younger, 580 A.2d at 554).
Pursuant to Rule 61(i)(1), a postconviction motion that is filed more than three years after judgment of conviction is untimely, and thus procedurally barred. The time bar of Super. Ct. Crim. R. 61(i)(1) more fully provides:
A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
Super. Ct. Crim. R. 61(i)(1).
Under Rule 61(i)(4), any ground for relief which has already been adjudicated is barred unless reconsideration of the claim is warranted in the "interest of justice." In order to invoke the "interest of justice" provision of Rule 61(i)(4) to obtain relitigation of a previously resolved claim a movant must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him. "The term `authority' [to convict or punish] includes not only the concept of jurisdiction, but also encompasses violations of rights guaranteed by the United States Constitution. The policy underlying the "interest of justice" language is described as follows:
Id. at (i)(4).
Flamer v. State, 585 A.2d 736, 746 (Del. 1990) (citing comparatively Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109, 116-117 (1974)).
Bailey v. State, 588 A.2d 1121, 1126, n. 5 (Del. 1991) (citing Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)); Flamer v. State, 585 A.2d 749 (Del. 1990).
The State interest in finality of judgments that underlies the former adjudication bar Rule 61(i)(4) defines the scope of the "interest of justice" exception. Consequently, while the countervailing interest of the defendant in access to the Court must always be considered, exceptions to the former adjudication bar are necessarily narrow in scope. Otherwise, the bar would not achieve its purpose of finality and would be meaningless. Thus, legal arguments which have been previously adjudicated "may not be reasserted in later proceedings except under exceptional circumstances. . . ."
State v. Rosa, 1992 WL 302295, at *7, n. 10 (Del.Super.).
The Williams Decision
The Court in Williams, sitting en banc, overruled Chao v. State, and its progeny, with respect to the meaning of the "in furtherance" language of 11 Del. C. § 636(a)(2). Twelve years earlier in Chao, the Delaware Supreme Court had held that, in order "[f]or felony murder liability to attach, a killing need only accompany the commission of an underlying felony. Thus, if the `in furtherance' language has any limiting effect, it is solely to require that the killing be done by the felon, him or himself." The Chao Court cited Weick for support, without overruling that portion of Weick requiring that death be a consequence of the felony and not a coincidence of it.In consideration of its prior holdings in Chao and Weick, the Court in Williams addressed the remaining question of "whether the felony murder rule still includes a restriction that there be a causal connection between the felony and the murder in that the murder must be not only "in the course of" but also "in furtherance of" the felony." Adopting the rules of statutory analysis set forth in Industrial Rentals, Inc. v. New Castle County Board of Adjustment and in Nationwide Insurance Co. v. Graham the Court analyzed the felony murder statute as a whole, giving full effect to all the words and pertinent statutory language to produce the most reliable, well-balanced outcome. In the Court's opinion, the two phrases, "in the course of" and "in furtherance of," separated by the conjunctive "and," and construed together, "[g]ive the sense the statute requires both that the murder occur during the felony and that the murder occur to help move the felony forward." Therefore, the Court reasoned, "[f]elony murder cannot attach unless the murder is a consequence of the felony and is intended to help the felony progress." Adopting this line of reasoning, the Court concluded that:
Williams, 818 A.2d at 912.
776 A.2d 528, 530 (Del. 2001).
451 A.2d 832, 834 (Del. 1982).
Williams, 818 A.2d at 912.
Id.
[T]o the extent that the Chao opinion states that the `in furtherance of' language of the statute addresses solely the identity of the person who is committing the actual killing, it is overruled. Accordingly, we adhere to the holding of Weick and hold that the felony murder language requires not only that the defendant, or his accomplices, if any, commit the killing [sic] but also that the murder helps move the felony forward.
(footnote omitted).
Id. at 913.
DISCUSSION
On remand, the Supreme Court has asked this Court to issue its findings on the following questions of law: (1) Is the Superior Court required to reconsider Chao's felony murder convictions in light of Williams?, and (2) Is the State estopped from arguing against the retroactive application of Williams in light of its contrary position in State v. Kirk?I. The Superior Court is Required to Reconsider Chao's Felony Murder Conviction In Light of Williams
The Defendant contends that the decision in Williams should be applied retroactively to invalidate her conviction of three counts of felony murder because the ruling in Williams reinterpreted the meaning of the "in furtherance of" language in the felony murder statute. In Davis, the United States Supreme Court articulated the appropriate standard for evaluating the retroactivity of new substantive criminal decisions under § 2255. There the defendant's conviction, although already affirmed by the Ninth Circuit, was called into question by a new Ninth Circuit decision decided on nearly identical facts. Addressing the retroactivity of the new decision, the Court held that, "the appropriate inquiry [is] whether the claimed error of law was a `fundamental defect which inherently results in a complete miscarriage of justice,' and whether [i]t present[s] exceptional circumstances where the need for the remedy afforded'" by collateral relief is apparent. The Court held that the situation presented by Davis, in which the defendant may have been convicted for acts that were not considered criminal under the relevant statute, satisfied this standard. It concluded that the injustice that would occur but for the retroactive application of the new Ninth Circuit decision was sufficiently egregious to warrant retroactivity. "Most courts have construed Davis as requiring that a substantive change in the law, or reinterpretation of the statutory law, must be applied retroactively, and have considered Davis the final word on retroactivity of statutory changes."
United States v. Woods, 986 F.2d 669, 676 (3d Cir. 1993).
Id.
Id. (citations omitted).
Id.
Id. at 676-677.
Price v. United States, 959 F.Supp. 310, 314 (E.D. Va. 1997).
In contrast to the substantive retroactivity standard established in Davis, the United States Supreme Court revisited the retroactivity doctrine for new rules of criminal procedure raised in habeas corpus suits in Teague. In Teague, the habeas petitioner asked the Court to apply the "fair cross section" requirement to the petit jury in his case. In declining to do so, the Court discarded the Linkletter balancing test and announced a general rule that new criminal procedural rules would be non-retroactive in habeas corpus suits. The Court identified two narrow exceptions to this rule of non-retroactivity. First, a court should apply a new criminal procedural rule retroactively if "it places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Second, under Teague a court should apply a new procedural rule retroactively if "it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty."
Id. at 299. The petitioner argued that the Sixth Amendment's requirement that the jury venire be drawn from a "fair cross section" of the community should also be applied to the petit jury as well. Id. (citing Taylor v. Louisiana, 419 U.S. 522, 538 (1975)).
Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
Teague, 489 U.S. at 306 (citing Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971)).
Id. (citations and internal quotations omitted).
The Delaware Supreme Court, in Flamer v. State, discussed the impact of Teague on postconviction relief motions. Based on the Teague standard, the Court held:
585 A.2d 736 (Del. 1990).
[W]e adopt a general rule of non-retroactivity for cases on collateral review. A postconviction relief court need apply only the constitutional standards that prevailed at the time the original proceedings took place. The application of a constitutional rule not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect. Therefore, we hold that new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced, unless the rules fall within one of two exceptions.
Flamer, 585 A.2d at 749 (citing Teague, 489 U.S. at 288).
Flamer, 585 A.2d at 749.
Adopting federal retroactivity principles the Delaware Supreme Court analyzed Flamer's contention, that his Sixth Amendment right to counsel was violated under the rule set out by the United States Supreme Court in Michigan v. Jackson, under the approach articulated in Teague. Jackson was a case decided three years after Flamer's convictions and two years after Flamer's sentences were affirmed on direct appeal. The Court of Appeals for the Eleventh Circuit had concluded that the rule announced in Jackson undoubtedly constituted a new rule because the United States Supreme Court "imposed a new obligation on police (not to initiate an interrogation after a defendant has asserted his right to counsel under the sixth amendment) and established a bright line rule excluding police-initiated statements (a result not dictated by then existing precedent)."
475 U.S. 625 (1986).
Flamer, 585 A.2d at 747-748.
Id. at 747.
Collins v. Zant, 892 F.2d 1502, 1511 (11th Cir. 1990).
Id. at 1512.
Moreover, the rule in Jackson fell under neither of the two available exceptions. Because the rule in Jackson had no retroactive application to Flamer's case, the Delaware Supreme Court concluded that reconsideration of his claim was not warranted in the "interest of justice" provision of Rule 61(i)(4). Thus, his contention was rejected pursuant to Superior Court Criminal Rule 61(i)(4). The Delaware Supreme Court noted that in order to invoke the "interest of justice" provision a movant must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him. The Flamer court cited to Davis as authority that supported a proposition different from the main proposition, but sufficiently analogous to lend support.
Id.
Flamer, 585 A.2d at 750.
Id.
Id. at 746 (citing comparatively Davis, 417 U.S. at 342).
In United States v. Woods, the Third Circuit recognized that there are two separate doctrinal standards that the Court has created for the retroactive application of new rules of substantive and procedural criminal law which are not all that different. Rather, there are common animating principles underlying the two. Inherent in both doctrinal formulations is the overarching notion that the interest in finality bears an important place in our legal system such that retroactivity is the exception, not the norm. Consequently, both the procedural and the substantive standards reflect the principle that new decisions will not be retroactively applied without substantial justification. Conversely, both tests account for the fact that if holding a new decision non-retroactive would clearly result in an egregious injustice, then retroactivity is appropriate.
986 F.2d 669 (3d Cir. 1993).
Id. at 678.
Id.
Id.
Id.
Id.
In the Court's view, the Williams holding bears no resemblance to what the United States Supreme Court has commonly characterized as a new criminal procedural rule for retroactivity purposes. Therefore, Teague is inapplicable. Nonetheless, because of the reasoning set forth in Woods and the fact that the Delaware Supreme Court has adopted the Teague standard for evaluating the retroactivity of new criminal procedural rules, the Court is convinced that adopting and applying the Davis standard for evaluating the retroactivity of new substantive criminal decisions is appropriate in the present case. The Court finds further support in applying Davis because Flamer cited to Davis as authority that supported a proposition different from the main proposition, but sufficiently analogous to lend support in the context of the "interest of justice" provision of Rule 61(i)(4). Specifically, Davis is cited as the authority that supports the proposition that "a movant must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish."
Flamer, 585 A.2d at 746.
After consideration of these and other relevant principles, the Court is convinced that, in the present case, it is appropriate to adopt the standard for evaluating new statutory interpretations that render the conduct of which the Defendant was convicted non-criminal. The Court finds that the Defendant has been convicted of acts that no longer lawfully constitute a crime under the new law established in Williams redefining the "in furtherance" language in 11 Del. C § 636(a)(2). When applying the holding in Williams to the case at bar, it is clear that the murders of Chen's wife, mother and daughter, did not help "move the felony" of arson forward. The Defendant Chao did not cause the deaths of these three members of the Guo family in order to further or promote the fire that burned down their house. Defendant's situation, therefore, typifies the type of miscarriage of justice contemplated by Davis so that "[n]o circumstances call more for the invocation of a rule of complete retroactivity." As such, Defendant's claim meets the "fundamental fairness" exception of Rule 61(i)(5). Hence, the Superior Court determines that it is required to reconsider Chao's felony murder conviction in light of Williams.
Williams, 818 A.2d at 913.
Woods, 986 F.2d at 681 (citations omitted).
II. The State is Not Estopped from Arguing Against the Retroactive Application of Williams in Light of Its Contrary Position in State v. Kirk.
2004 WL 396407 (Del.Super. Feb. 26, 2004), aff'd, 2005 WL 3526325 (Del. Dec. 23, 2005).
The Defendant maintains that because this Court recognized in Kirk that the interpretation of the felony murder statute as recognized in Williams should be retroactively applied, that same rule should be retroactively applied in this case. Otherwise, this Court "would overturn the Delaware Supreme Court's ruling on retroactivity under these circumstances which the Superior Court cannot do." As authority for this argument the Defendant cites Pesta. In Pesta, the Court concluded that the doctrine of judicial estoppel applied and therefore precluded the defendant from repudiating an assertion he made when filing his petition in the Justice of the Peace Court. Pesta, however, is distinguishable. Unlike Pesta, the position taken in this proceeding is not inconsistent with a position previously taken in the same or in an earlier proceeding involving Chao. The State is not attempting to establish an inconsistent or different cause of action arising out of the same occurrence. Therefore, the doctrine of judicial estoppel does not apply and the State is free to assert its claim.
Def. Br., D.I. 245, at 12.
Furthermore, the Defendant asserts that the State is estopped from arguing against the retroactive application of Williams because a state procedural rule must be "consistently or regularly applied." The Defendant, however, fails to note that the Supreme Court has also held that if a state supreme court has faithfully applied a procedural rule in "the vast majority" of cases, its willingness in a few cases to overlook the rule and address a claim on the merits does not mean that it does not apply the procedural rule regularly or consistently. "An occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate." The Court does not find the Defendant's argument persuasive. Thus, the Court determines that the doctrine of judicial estoppel does not apply and the State is free to assert that Williams is not retroactive.
Johnson v. Mississippi, 486 U.S. 578, 588-589, 108 S.Ct. 1981, 1988, 100 L.Ed.2d 575 (1988); see also Ford v. Georgia, 498 U.S. 411, 423-424, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991).
Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997) (citations omitted).
Id.
CONCLUSION
For all of the foregoing reasons, the Court makes the following findings and recommendations in regard to the questions asked by the Supreme Court. First, the Superior Court is required to reconsider Chao's felony murder conviction in light of Williams. Second, the State is not estopped from arguing against the retroactive application of Williams in light of its contrary position in State v. Kirk. Because of stipulations made by the parties, the Court will not hold a hearing on this matter.