Opinion
ID. No. 9703012700.
Submitted: January 27, 2009.
Decided: February 20, 2009.
Upon Defendant's Third Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61. DENIED
COMMISSIONER'S REPORT AND RECOMMENDATIONSteven Wood, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Luis G. Cabrera, Smyrna, Delaware, pro se
This 20TH day of February, 2009, upon consideration of Defendant's Third Motion for Postconviction Relief, it appears to the Court as follows:
FACTS AND PROCEDURAL HISTORY
On October 26, 1994, Defendant Luis Guillermo Cabrera and the eventual victim, Fundador Otero, conspired to obtain a false State of Delaware identification card. Otero posed in a photograph as Defendant's father, Luis Cabrera, Sr., and used Defendant's father's pedigree information.
State v. Cabrera, 1999 WL 41630 (Del.Super.).
With Otero portraying Cabrera, Sr. and Defendant acting as interpreter, the two used the false identification to procure a second mortgage on Cabrera, Sr.'s home without his knowledge. Cabrera, Sr. found the false identification card inside a drawer in his house, where Defendant sometimes left personal items.
Cabrera, Sr. went to the Department of Motor Vehicles ("DMV") on December 23, 1994 to report the falsification. Later, Cabrera, Sr. went to see Mr. Otero to question him about the card, at which time Mr. Otero became very upset and apologetic, and began to cry. On January 3, 1995, during the course of the ensuing fraud investigation, a DMV investigator met with Otero.
Having become aware of the DMV investigation, Defendant recruited Luis Eduardo Reyes to "take Otero out." On January 5, 1995, Defendant and Reyes went to Otero's apartment. Reyes did not know Otero before that night. Otero opened the door slightly, but did not remove the chain. Cabrera and Otero exchanged words in Spanish. As Otero proceeded to close his door, Cabrera kicked it open. Once inside the apartment, Otero was ordered to sit on the couch between Cabrera and Reyes. Otero began to plead with Cabrera that he had not talked to the police about the fraud. Cabrera insisted that Otero had.
Reyes, a high school wrestling star, held Otero down so he could not move. Otero was sixty-seven and slight in stature. While Reyes was holding Otero, Cabrera placed a wet washcloth and another unidentified object over Otero's face to smother him. Otero struggled but could not free himself from Reyes' hold. Cabrera then tied a plastic bag over Otero's head. Otero struggled and pleaded, but died within forty-five minutes to one hour.
After the murder, Cabrera removed the plastic bag from Otero's head. Cabrera and Reyes put clothes on the corpse and placed the body in Otero's truck. Cabrera drove Otero's truck and instructed Reyes to follow him in Cabrera's truck from Wilmington to New Jersey. At some point on the New Jersey Turnpike, they removed Otero's corpse and placed it in Cabrera's truck, leaving Otero's truck on the side of the highway. Cabrera drove sixty miles to Burlington County, New Jersey, where they parked in the rear of an empty department store building and placed Otero's body, head first, into a dumpster. Cabrera then retrieved a can of gasoline from his truck, poured the gasoline over the corpse, and set the corpse on fire. It took two years to identify Otero's body.
On April 8, 1997, Cabrera was arrested and charged with Intentional Murder First Degree, Felony Murder First Degree, Conspiracy First Degree, and Burglary First Degree. On May 29, 1998, a Superior Court jury found Cabrera guilty of all four charges. The jury unanimously found that the State had proved beyond a reasonable doubt at least one of the statutory aggravating circumstances. During the penalty phase, seven jurors recommended death and five jurors recommended life imprisonment.
After weighing the aggravating and mitigating circumstances, the Court sentenced Cabrera to two consecutive terms of life imprisonment without benefit of probation, parole or any other reduction. Cabrera was sentenced to 4 years at Level V for Burglary First Degree and 5 years at Level V for Conspiracy First Degree.
State v. Cabrera, 1999 WL 41630 (Del.Super.).
The Delaware Supreme Court affirmed Cabrera's convictions and issued a mandate on March 24, 2000. On March 17, 2003, Cabrera filed his first motion for postconviction relief pursuant to Superior Court Criminal Rule 61. The Superior Court denied the motion on October 8, 2003. The Superior Court's denial of the motion was affirmed by the Delaware Supreme Court on April 26, 2004.
Cabrera v. State, 747 A.2d 543 (Del. 2000).
Cabrera v. State, 2004 WL 906552 (Del.).
On December 28, 2005, Cabrera filed a second motion for postconviction relief, requesting that the Court vacate his felony murder conviction in light of the Delaware Supreme Court's reconsideration of its interpretation of the felony murder statute.
Williams v. State, 818 A.2d 906 (Del. 2003).
In Williams v. State, 818 A.2d 906 (Del. 2003), the Delaware Supreme Court, in reconsidering its interpretation of the felony murder statute, held that when a burglary is committed for the sole purpose of murdering the victim, a defendant cannot be convicted under the felony murder statute. The Williams Court found that "the Delaware 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." When the purpose of the burglary is to murder the victim, the murder was not committed to carry out the commission of the burglary. The murder was not carried out "in furtherance of" the burglary. Instead, the burglary was committed so that the defendant could murder the victim.
Id. at 913.
Id.
After the Williams decision, the felony murder statute was amended.
On February 6, 2007, Cabrera's second motion for postconviction relief was stayed pending resolution by the Delaware Supreme Court of the appeal in Chao v. State, as to whether the interpretation of the felony murder statute as set forth in Williams v. State should be applied retroactively.
931 A.2d 1000 (Del. 2007).
On June 20, 2007, the Delaware Supreme Court held that the interpretation of the felony murder statute as set forth in Williams v. State should be applied retroactively.
Chao v. State, 931 A.2d 1000 (Del. 2007).
In light of the change in law and its retroactive effect, on August 22, 2008, the Superior Court granted Cabrera's Second Motion for Postconviction Relief and vacated the Felony Murder conviction. The convictions and sentences for Intentional Murder First Degree, Conspiracy First Degree and Burglary First Degree remained as previously imposed.
State v. Cabrera, 2008 WL 4868762 (Del.Super).
On December 29, 2008, Cabrera filed a Third Motion for Postconviction Relief. Cabrera raises two grounds as the basis for this motion. First, Cabrera raises ineffective assistance of counsel "for failure to file pretrial motion challenging the felony murder charge." Second, Cabrera raises "constitutional violations" for "failure to give jury option of considering lesser included offenses. . . ."
DISCUSSION
Before addressing the merits of this motion for postconviction relief, the Court must first consider the procedural bars of Superior Court Criminal Rule 61(i). If a procedural bar exists, the Court will not consider the merits of the individual claims.Pursuant to the applicable version of Rule 61(i)(1), a motion for postconviction relief may not be filed more than three years after the judgment of conviction is final. If the motion asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, the motion must be filed not 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). If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, the motion must be filed within one year. See, Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61 (i)(1) (May 1, 1996).
Cabrera's judgment of conviction became final on March 24, 2000. At the time of Cabrera's conviction, he was properly convicted under the felony murder statute as it was being interpreted at that time. It was not until 2003 that the Delaware Supreme Court reconsidered its interpretation of the felony murder statute, and not until June 2007 that the Delaware Supreme Court settled the issue that the new interpretation should apply retroactively.
Williams v. State, 818 A.2d 906 (Del. 2003).
Chao v. State, 931 A.2d 1000 (Del. 2007).
This motion, filed December 29, 2008, although filed over eight years after the judgment of conviction was final, was filed within three years after the Delaware Supreme Court settled the issue that the new interpretation of the felony murder statute should apply retroactively. Consequently, the Court will consider the merits of the motion.
Cabrera raises as the first ground for postconviction relief, ineffective assistance of counsel "for failure to file pretrial motion challenging the felony murder charge". Cabrera fails to recognize that he was properly charged and convicted under the felony murder statute as it was interpreted at the time of his conviction. It was not until years later that the interpretation changed. Moreover, and more importantly, Cabrera's felony murder conviction was vacated on August 22, 2008. Any contention that his counsel rendered ineffective services related to the felony murder conviction is moot. Cabrera prevailed on the felony murder conviction which was vacated. Any actions or inactions of Cabrera's counsel has not resulted in any prejudice to Cabrera, since the felony murder conviction was vacated, and therefore Cabrera cannot prevail on an ineffective assistance of counsel claim related to this charge.
Strickland v. Washington, 466 U.S. 668 (1984).
Cabrera raises as the second ground for postconviction relief "constitutional violations" for "failure to give jury option of considering lesser included offenses. . . ." In Cabrera's memorandum of law he explains his position that he feels that his entitlement to jury instructions on lesser included offenses is somehow strengthened now that his felony murder conviction has been vacated.
Cabrera also contends that his allegation that his counsel failed to investigate an alibi defense, which he previously raised in his First Motion for Postconviction Relief, somehow becomes even more egregious now that his felony murder conviction has been vacated.
The Court has already adjudicated the issue of Cabrera's alibi defense. Rule 61(i)(4) bars any ground for relief that was previously adjudicated, unless reconsideration of the claim is warranted in the interest of justice.
As the Court previously held, Cabrera's argument that his counsel failed to investigate an alibi defense is without factual support. While counsel tried to find the individual identified by Cabrera as an alibi witness, the witness could not be located. The vacation of Cabrera's felony murder conviction does not change the fact that his alleged alibi witness could not be located.
Cabrera v. State, 2004 WL 906552 (Del.)
Turning now to Cabrera's contention that the failure to give the jury the option of considering lesser included offenses violated his constitutional rights, no request was made for a jury instruction on a lesser included offense, and there was no rational basis in the record for any such request.
Delaware law requires that before a trial court may instruct a jury on a lesser included offense, there must be a "rational basis" in the evidence for a verdict acquitting the defendant of the charged offense and convicting him of the lesser offense. When there is no testimony or other evidence to suggest that the killing of the victim was other than intentional, there is no basis to instruct the jury on a lesser included offense.
Baker v. State, 1993 WL 557951, at *6 (Del.).
Id.
Cabrera fails to recognize that his felony murder conviction was vacated precisely because he broke into the victim's residence for the sole purpose of, and with the intent to kill Otero. The vacation of Cabrera's felony murder conviction does not somehow open the issue of Cabrera's mental state (i.e., negligent, reckless or intentional). Indeed, had Cabrera broke into the victim's residence for any other purpose, other than for the sole purpose of killing the victim, Cabrera's felony murder conviction would not have been vacated.
Cabrera solicited Reyes' participation to assist in killing Mr. Otero, the day before it was carried out. Cabrera went to Mr. Otero's residence to kill him. Cabrera placed a jug of gasoline in his truck to burn the corpse after he had completed the killing. He knew he would need another's assistance to hold Mr. Otero in place while Cabrera suffocated Mr. Otero.
There was no rational basis for a jury instruction on a lesser included offense. There was no doubt that Mr. Otero's murder was the result of Cabrera's premeditation, substantial planning, and was a cold-blooded intent to kill that was more contemplated, more methodical, more controlled and more calculated than that necessary to sustain a conviction for first degree murder.
State v. Cabrera, 1999 WL 41630, *8 (Del.Super.).
CONCLUSION
For the reasons stated above, Defendant's Third Motion for Postconviction Relief should be denied.IT IS SO RECOMMENDED.