Opinion
I.D. No. 0309013358.
Submitted: October 15, 2007.
Decided: December 7, 2007.
Decision upon Defendant's Motion for Postconviction Relief.
On July 17, 2007, Donald Cole ("defendant") filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule ("Rule 61") alleging ineffective assistance of counsel. His entire argument is stated in two sentences: "Counsel failed to argue at trial and on direct appeal that Felony Murder wasn't in furtherance of underlining [sic] felony. Death must be a consequence of the felony…and not merely coincidence[.]" For the reasons set forth below, the defendant's Motion for Postconviction Relief is DENIED.
Def. Mot. for Postconviction Relief 4, July 17, 2007.
Factual and Procedural Background
The defendant's arrest and subsequent conviction stem from the deaths of Benjamin Jones and Ethelda Nurridin on August 31, 2001. A full statement of the facts can be found at State v. Johnson, 2006 WL 3308200 (Del.Super. Nov. 9, 2006). Cole and two others, Larry Johnson and Travanian Norton, went to a residence at 105 East 23rd Street, Wilmington, Delaware. Cole and Johnson entered the house through an upstairs window. The purpose of the burglary was to steal drugs and money from the son of the victims, a drug dealer who no longer lived in the residence. Mr. Jones heard the intruders, woke up to investigate the noise and was shot down. Ms. Nurridin followed Jones into the hallway; she too was shot down. A neighbor observed three men fleeing from the property.
Cole was indicted on September 22, 2003. The indictment charged him with two counts of Murder First Degree, Count IV, Benjamin Jones and Count VI, Ethelda Nurridin, as well as two counts of felony murder, Count VIII, Benjamin Jones and Count X, Ethelda Nurridin. The felony murder Counts allege that Cole "did recklessly cause the death of [victim] in the course of and in furtherance of the commission or attempted commission of Burglary First Degree."
Indictment 5-6, Sept. 22, 2003.
At trial, the jury was instructed that Delaware law defines felony murder as:
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.
Tr. Transcript 163, July 29, 2004.
The court further instructed the jury that `in furtherance of' means:
[T]he killing must have been done by the person who commits the other felony, or by an accomplice, for the purpose of assisting the defendant or an accomplice in committing, attempting or fleeing from the other felony.
Tr. Transcript 165-66, July 29, 2004.
On July 31, 2004 the jury returned verdicts of guilty of the two Counts of Second Degree Murder, two Counts of Felony Murder, Burglary 1st degree, Conspiracy Second Degree, and five counts of Possession of a Firearm during the Commission of a Felony. Following a penalty hearing, seven jurors concluded that the aggravating factors outweighed the mitigating factors; five jurors concluded otherwise. On September 2, 2004, the defendant was sentenced to, inter alia, two life terms in prison on the two charges of felony murder.
Cole appealed his conviction to the Delaware Supreme Court. The Supreme Court affirmed his conviction on March 12, 2007. Cole's attorneys at trial and on appeal were Michael C. Heyden, Esquire and Jan A. T. Van Amerongen, Jr., Esquire ("counsel"). On July 17, 2007, Cole filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule ("Rule 61") alleging ineffective assistance of counsel.
Cole v. State, 922 A.2d 364 (Del. 2007).
Ineffective Assistance of Counsel
To prevail on a postconviction relief claim based on ineffective assistance of counsel, defendant is required to meet both prongs of the test set forth in Strickland v. Washington. A movant must show both "that counsel's representation fell below an objective standard of reasonableness," and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." In attempting to establish a claim of ineffective assistance of counsel, the defendant must allege concrete allegations of actual prejudice and substantiate them. Any review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable.
Strickland v. Washington, 466 U.S. 668 (1984).
Id. at 689.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Strickland, 466 U.S. at 689.
Cole's defense at trial was that the State was prosecuting the wrong person. His counsel acknowledge that they did not make an argument regarding the charge of felony murder. As they explain, not only did the facts not support such an argument, but such an argument would have weakened the identification argument and would have had an adverse effect on the jury.
Heyden Resp. ¶ 7, Sept. 21, 2007.
Cole's reply argues that he is "challenging statutory law of felony murder which cannot attach unless the murder is a consequence of the felony and is intended to help the felony." The legal proposition which governs this issue is found in Williams v. State which held that the felony murder statute "not only requires that the murder occur during the course of the felony but also that the murder occur to facilitate commission of the felony." In Williams, the purpose of the burglary was to commit murder, thus the murder was not in furtherance of the felony.
Def. Reply 2, Oct. 15, 2007.
Williams v. State, 818 A.2d 906, 913 (Del. 2002).
The evidence in this case supports the conclusion that the burglary was committed to steal from the victims' son, a drug dealer. In the course of committing the burglary, the victims were awaken and were shot. The jury found that the defendant intended to commit the burglary, and that the murders occurred recklessly in furtherance of that burglary. The instructions to the jury clearly stated the proof required for a finding of guilt on the felony murder charges.
The defendant adds, in his reply, that his attorneys "failed to hold the prosecution to the standard of proving the issue concerning felony murder," thereby depriving him of a fair trial. This argument appears to be a different way of stating his initial argument as no further facts are provided. This argument lacks merit. The jury was instructed on State's burden of proof. Nothing more was required. The facts of this incident support the jury's verdict.
Def. Reply 3, Oct. 15, 2007.
The other additional claim added in his reply — that the State did not meet its burden of proving the statutory aggravating factors associated with the death penalty prosecution — is not only conclusory, but is not a matter for consideration in post-conviction.
Def. Reply 4, Oct. 15, 2007.
Superior Court Criminal Rule 61(i)(3); Epperson v. State, 901 A.2d 119 (Del. 2006).
Defendant also charges that his counsel failed to properly investigate the case because they did not raise the felony murder issue; they "still don't understand the laws of Delaware concerning felony murder. . . ." As discussed above, there is no merit to this argument.
Def. Reply 8, Oct. 15, 2007.
The defendant has failed to demonstrate a basis for his claim of ineffective assistance of counsel.
The defendant's Motion for Postconviction Relief is DENIED.