Opinion
ID. No. 83007303DI.
Submitted: November 24, 2008.
Decided: December 10, 2008.
Defendant's Pro Se Motion for Postconviction Relief DENIED.
Charles Blizzard, Sussex Correctional Institution, Georgetown, DE, pro se.
Richard Andrews, Esquire, Dept. of Justice, Wilmington, DE.
OPINION
I. INTRODUCTION
Defendant collaterally attacks his conviction for felony murder claiming that the revised interpretation of 11 Del. C § 636(a)(2) as set forth in Williams v. State requires this Court to vacate his conviction. Because Defendant fails to establish that the murder of Howard Marshall was not committed "in furtherance of" robbery, his claim is DENIED.
818 A.2d 906 (Del. 2002).
II. BACKGROUND
On the early morning of June 4, 1982, Defendant Charles Blizzard ("Blizzard") and his co-defendant Ronnie Cordell ("Cordell") beat Howard Marshall ("Marshall") until he was unconscious and then took $10 in cash from his pocket. Blizzard and Cordell dragged Marshall to a nearby lot, covered him with a blanket and left him lying on the ground between several trashcans. Marshall sustained multiple broken bones in addition to fractures of the thyroid cartilage which resulted in his death from asphyxia. His dead body was later found by a yard worker.On March 20, 1984, Blizzard was convicted by a jury of Murder First Degree (felony murder), Robbery First Degree and Conspiracy Second Degree. On September 4, 1984, he was sentenced to life imprisonment without parole for the murder charge, three years imprisonment for robbery and two years for conspiracy. The Delaware Supreme Court affirmed his convictions and sentence on July 28, 1986. On February 26, 2008, he filed the current pro se postconviction motion.
Sentencing Order, D.I. 21.
Blizzard v. State, 513 A.2d 1318 (Del. 1986).
Def. Mot. for Postconviction Relief, D.I. 39.
Blizzard seeks appointment of counsel and an evidentiary hearing. He claims that his felony murder conviction must be vacated in light of the Delaware Supreme Court's decision in Williams v. State. In Williams, the Court held that the "in furtherance of" language of the Delaware felony murder statute requires a murder to occur not only in the course of the felony, but also to "help move the felony forward." In Chao v. State, the Delaware Supreme Court found the holding in Williams applies retroactively.
818 A.2d 906 (Del. 2003).
Id. at 213.
Chao v. State, 931 A.2d 1000 (Del. 2007)("We conclude that in the interest of justice, Williams must be applied retroactively, because Chao may have been convicted for acts that do not constitute felony murder.").
Before addressing the merits of a postconviction relief claim, the Court must first determine whether the claims pass through the procedural filters of Rule 61. To protect the integrity of the procedural rules, the Court will not address the substantive aspects of the claims if a defendant's claims are procedurally barred. Although Blizzard brings this motion more than twenty years after his final conviction, he survives procedural default under Rule 61(i)(1) because his claim falls under the "fundamental fairness" exception of Rule 61(i)(5). Rule 61(i)(5) is applicable where the right relied upon is recognized for the first time after a direct appeal. Therefore, pursuant to this Rule, the Court will address the merits of Blizzard's claim.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991)("The first inquiry in any analysis of a post-conviction relief claim is whether the petition meets the procedural requirements of Rule 61.") See also Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Super. Ct. Crim. R. 61(i)(1).
Super. Ct. Crim. R. 61(i)(5).
Younger v. State, 580 A.2d 552, 555 (Del. 1990) (citing Teague v. Lane, 489 U.S. 288, 297-99 (1989)).
III. DISCUSSION
The question before the Court is whether sufficient evidence exists to show that the murder of Howard Marshall was committed "in furtherance of" the robbery. To answer this question, Williams and its progeny require the Court to determine whether Marshall's murder was committed in order to "facilitate," or help move the robbery forward. The Court finds sufficient evidence that the murder did facilitate the robbery.
The record reflects that on the night of the attack, Blizzard and Cordell were sitting under the I-95 Freeway overpass with their girlfriends when Marshall walked by them. Although the sequence of events is slightly varied, it is undisputed that Blizzard and Cordell hit and kicked Marshall in the face, chest and head until he was unconscious. As he lay on the ground, Blizzard told Cordell to "[c]heck to see if he has any money." Cordell searched Marshall's pockets and found $10 in cash. He gave half of the money to Blizzard. According to Blizzard's girlfriend, Marshall did not provoke the attack.
Trial Tr. 91:3-4.
Trial Tr. C22:17-C23:4.
The fact that Blizzard and Cordell beat Marshall until he was unconscious is an important fact in this case because the attack left Marshall helpless and unable to defend against the theft. Without the use of such force, Marshall could have fought back making it harder for Blizzard and Cordell to perpetuate the robbery. By beating Marshall until he was unconscious, Blizzard and Cordell effectively eliminated an obstacle that could have prevented them from stealing Marshall's money. Based on these facts, the Court finds that the murder of Marshall helped Blizzard and Cordell proceed with the robbery.
Cordell testified at trial that Marshall did not appear intoxicated and that Marshall hit him in the face. Cordell's account only lends more support to a finding that Marshall, had he not been beaten unconscious, would have attempted to fend off the defendant's attempt to steal his money. Trial Tr. 108:5-109:8.
The only remaining question then is whether Blizzard and Cordell formed the intent to rob Marshall before they killed him or if the robbery occurred as an afterthought. This Court dealt with this issue in State v. Outten. In that case, the defendant Outten and his co-defendants beat their victim to death and then robbed him. This Court vacated Outten's felony murder conviction, however, because it found insufficient evidence that Outten and his co-defendants had formed the intent to rob their victim before they killed him. The fact that Outten was never indicted for conspiracy to commit robbery was a significant fact in that case. The question did not go to the jury and the Court could not find any evidence of an intent or an agreement by Outten and his co-defendants to rob the victim before they beat him to death.
2008 WL 100117 (Del.Super.).
Outten, 2008 WL 100117, at *3.
The crucial distinction in this case, however, is that Blizzard was indicted and convicted of Conspiracy Second Degree in that a jury found that "[Blizzard and Cordell] did agree with each other to engage in conduct constituting the felony of Robbery First Degree and did commit an overt act in furtherance of said conspiracy by committing Robbery First Degree . . ." Furthermore, at the penalty hearing the jury unanimously found the statutory aggravating circumstance "that the murder was committed while [the] defendants were engaged in the commission of a robbery." Thus, the Court is not faced with the quandary that was present in Outten. The jury found beyond any reasonable doubt that Blizzard and Cordell formed the intent to rob Marshall before they beat Marshall to death.
Indictment, D.I. 1.
Penalty Hearing, D.I. 17.
IV. CONCLUSION
The Court finds sufficient evidence that Blizzard's intent to rob Marshall was formed before the killing of Marshall and that the killing helped facilitate the robbery. Accordingly, Marshall's murder was committed "in furtherance of" the robbery and Blizzard's conviction of felony murder must stand. Consequently, Blizzard's request for appointment of counsel and an evidentiary hearing is DENIED.
IT IS SO ORDERED.