Opinion
I.D. No. 0107010230.
Submitted: November 26, 2007.
Decided: February 13, 2008.
Upon Defendant's Motion for Postconviction Relief.
DENIED.Loren C. Meyers, Esquire, Chief of Appeals Division, Department of Justice, Wilmington, Delaware, Attorney for the State.
Robert Garvey, Smyrna, Delaware, pro se.
ORDER
This 13th day of February, 2008, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that:
A. Facts and Procedural history
1. In the early morning of July 15, 2001, Defendant, Robert Garvey, killed Donald Jordan during the course of a robbery gone awry. Defendant ambushed Jordan and Jordan's cousin on a stairwell inside of an apartment building, located at Brandywine Hills Apartments. A struggle ensued, during which struggle Defendant's firearm discharged, and Jordan was shot in the chest. Jordan died minutes later. Defendant then chased Jordan's cousin out of the apartment building and into a dumpster area of the complex. There, Defendant pistol-whipped the cousin before taking his jewelry and threatening to kill him. The cousin escaped, and was picked up by the police down the road from the apartment building.
2. On October 22, 2003, a jury found Defendant guilty of Murder First Degree; Robbery First Degree, Attempted Robbery First Degree, Conspiracy First Degree; Conspiracy Second Degree, Possession of a Firearm During the Commission of a Felony (two counts), and Carrying a Concealed Deadly Weapon (two counts).
3. Defendant took a direct appeal to the Delaware Supreme Court, "claiming that the trial judge abused his discretion by denying a pretrial motion to suppress [Defendant's] post-arrest statement and a motion to declare a mistrial. [Defendant] also [contended] for the first time on appeal that the jury's findings at the guilt and penalty stages were inconsistent." The Supreme Court upheld the trial court's decisions denying both Defendant's motion to suppress and Defendant's motion for a mistrial. The Supreme Court held that Defendant had unambiguously waived his Miranda rights, and thus the trial court did not abuse its discretion in holding that suppression of his post-arrest statements was unnecessary. Additionally, the Supreme Court opined that the trial court did not abuse its discretion when it denied Defendant's motion for a mistrial despite the fact that a witness "improperly commented on the redacted status" of Defendant's videotaped statement to the police; the curative instruction given to the jury sufficiently limited any prejudice to Defendant. Finally, the Supreme Court held that the jury's verdicts at the guilt stage and the penalty stage, though arguably inconsistent, were nonetheless explicable as the product of jury lenity. 4. On September 20, 2005, Defendant filed his first motion for postconviction relief pursuant to Superior Court Criminal Rule 61, alleging ineffective assistance of counsel as the ground for the motion. The Superior Court denied this motion, holding that the defense "Counsel's conduct did not fall below an objective standard of reasonable professional conduct" in any of the instances Defendant cited. The Supreme Court affirmed the Superior Court's decision on appeal.
Garvey v. State, 873 A.2d 291 (Del. 2005).
Id. at 301.
Id. The jury found by an 8-4 verdict that Defendant had committed the robbery for pecuniary gain; however, the jury found by a 9-3 verdict that the aggravating factors of Defendant's case did not outweigh the mitigating factors, thus finding against the imposition of the death sentence.
Defendant raised four grounds for ineffective assistance of counsel: "(1) counsel for Defendant failed to raise a violation of Defendant's right to speedy trial on direct appeal, (2) counsel on direct appeal failed to challenge the Superior Court's June 9, 2003, denial of Defendant's motion to suppress that challenged Defendant's arrest as lacking probable cause, (3) counsel on direct appeal failed to raise Defendant's claim that the search of his gym bag, which contained the probable murder weapon, violated Defendant's Fourth Amendment rights, and (4) counsel failed to appeal the Court's December 4, 2003, denial of Defendant's Motion for Judgment of Acquittal." State v. Garvey, 2006 WL 1495786, *2 (Del.Super.).
State v. Garvey, 2006 WL 1495786 (Del.Super.).
Garvey v. State, 2007 WL 1221136 (Del.Supr.).
5. Defendant filed this, his second Rule 61 motion for postconviction relief, on August 20, 2007, which he later amended on September 13, 2007. Defendant now argues two grounds for postconviction relief: 1) that his right to be present while the Court questioned jurors during the trial was violated (which is couched in an ineffective assistance of counsel claim), and 2) that since the State had failed to prove that the death of Donald Jordan "furthered" the commission of the robbery, that his felony murder conviction should be vacated under Chao v. State and Williams v. State.
Chao v. State, 931 A.2d 1000 (Del. 2007).
Williams v. State, 818 A.2d 906 (Del. 2003).
B. Contentions of Defendant
6. Defendant lists various instances in which the Court questioned jurors during the trial in the presence of Defendant's counsel, but in the absence of Defendant. Defendant argues that this was a violation of his right to be present at trial under Superior Court Criminal Rule 43.
D.I. 208, att. mem., at 11-21.
7. Defendant additionally argues that the discharge of his weapon during his struggle with Jordan was not intentional, and thus Defendant could not have had the requisite intent to establish that the killing was "in furtherance" of the robbery. Defendant asserts that the recent decision of Chao v. State and Williams v. State require the vacation of his conviction because, in Williams, the Supreme Court held that the "in furtherance of" language of the Delaware felony murder statute requires a murder occur not only in the course of the felony, but also to "help move the felony forward." In Chao, the Supreme Court found the holding in Williams applies retroactively.
D.I. 208, att. mem., at 22-26.
Williams, 818 A.2d 906, 913. See 11 Del. C. § 636(a)(2) "A person is guilty of murder in the first degree when . . . [i]n the course of and in furtherance of the commission or attempted commission of a felony. . ., the person recklessly causes the death of another person."
C. Contentions of the State
8. The State maintains that both of Defendant's claims are procedurally barred under Superior Court Criminal Rule 61(i)(2). Notwithstanding the procedural bars, the State contends that the claims are without merit since: 1) Defendant has not sufficiently shown that he was prejudiced when the Court questioned jurors outside of Defendant's presence but in the presence of Defendant's counsel, and 2) the Court properly incorporated the Williams decision in its instruction to the jury, and there was sufficient evidence for the jury to conclude that Defendant committed the murder "in furtherance" of the robbery.
D. Discussion
9. The Court holds that Defendant's claim that his right to be present when the Court interviewed jurors was violated is procedurally barred by Superior Court Criminal Rule 61(i)(2). Furthermore, Defendant has not presented a "colorable claim" to allow him to proceed under Rule 61(i)(5), which provides the exception to the procedural bars of Rule 61. Neither is Defendant entitled to relief under his second claim that, under Chao v. State and Williams v. State, he could not have been convicted of felony murder. This Court correctly took into account the holding in Williams when it instructed the jury as to the requirements for finding that the killing of Jordan occurred "in furtherance" of the robbery, and there was ample evidence for the jury so to find.
10. The Court first discusses the alleged violation of Defendant's right to be present when jurors were questioned by the Court during the trial, when various issues relating to the jurors arose. A defendant's right to be present at trial is codified in Superior Court Criminal Rule 43. Before addressing the merits of this motion for postconviction relief, the Court must first apply the procedural bars of Superior Court Criminal Rule 61. If a procedural bar exists, then the Court will not consider the merits of the postconviction claim. Rule 61(b)(2) requires a defendant to "specify all the grounds for relief which are available to [him] and of which [he] has or, by the exercise of reasonable diligence, should have knowledge. . . ." Under Rule 61(i)(2), any claim for relief not asserted in a prior postconviction motion is barred.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
11. This is Defendant's second motion for postconviction relief. In his prior postconviction motion, Defendant had the opportunity to raise his complaint that his rights were violated due to the fact that he was not present when the Court made inquiries to particular jurors. He did not do so, and offers no explanation as to why it was not raised in his first motion for postconviction relief. Therefore, Defendant's newly raised claim is barred by Rule 61(i)(2).
12. Defendant argues nevertheless that the procedural bar of Rule 61(i)(2) does not apply to his complaint, maintaining that Rule 61(i)(5) applies to his claim. Rule 61(i)(5) provides:
The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply . . . 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.
13. Defendant has not presented a claim that rises to the level required under Rule 61(i)(5). Defendant has not established that his presence during the questioning of any particular juror would have helped to ensure a more reliable determination into the ability of any particular juror to sit. Defendant's " pro forma recitals [of prejudice] are insufficient to establish either fundamental prejudice or that his absence from the [jury questioning] deprived him of right of due process." Thus, Defendant has no ground to bypass the procedural bars of Rule 61(i)(2) through the exception of Rule 61(i)(5).
Hall v. State, 1989 WL 27783 (Del.Supr.).
14. Neither is Defendant's second argument, that he was erroneously convicted under the felony murder rule, meritorious. The decision in Williams was released in April of 2003, well before Defendant's trial in October of 2003. The Court was aware of the import of Williams, as is evident by an examination of the trial transcript. The Court gave the jury the following instruction, which incorporated the Williams decision specifically addressing the definition of the phrase "in furtherance of":
Tr. 122-124; 180-181 (Oct. 20, 2003).
The phrase "in the course of" means that the death must have occurred during the commission of another felony or in the attempted commission of another felony. The phrase "in the furtherance of" means that the death occurred to help move the felony forward and was not merely coincidental to the commission of or the attempted commission of the felony. In other words, a person cannot be guilty of felony murder unless the murder is a consequence of the felony or attempted felony and is intended to help the felony or attempted felony progress.
The state has alleged two separate theories of defendant's liability in the murder first degree count: One, that the felony robbery first degree was committed (with respect to [Jordan's cousin]); and/or, two, that the felony of attempted robbery first degree was committed (with respect to Donald Jordan).
Tr. 107-108 (Oct. 21, 2003).
There was ample evidence for the jury to conclude that Defendant discharged his firearm during the struggle in order to help move the robbery of Jordan and Jordan's cousin forward. Thus, the record is clear that the Court followed the Williams decision when it instructed the jury, and Defendant has no ground for relief under Williams or Chao.
15. Defendant has requested the Court to appoint counsel to represent him in this proceeding, asserting that he has presented a "substantial ground for relief." The Court cannot agree; neither of Garvey's claims present a "substantial ground for relief," and appointment of counsel is therefore unwarranted.
Super. Ct. Crim. R. 61(e)(1).
E. Conclusion
16. For the reasons stated, Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.