IN THE SUPREME COURT OF THE STATE OF DELAWARE
RONALD DAVIS, § § No. 691, 2013 Defendant Below, § Appellant, § Court Below–Superior Court § of the State of Delaware in v. § and for New Castle County § STATE OF DELAWARE, § § Plaintiff Below, § Cr. ID No. 1211016788 Appellee. §
Submitted: June 2, 2014 Decided: August 12, 2014
Before STRINE, Chief Justice, HOLLAND and RIDGELY, Justices.
ORDER
This 12th day of August 2014, upon consideration of the appellant’s
brief filed under Supreme Court Rule 26(c), his attorney’s motion to
withdraw, and the State’s response, it appears to the Court that:
(1) In September 2013, a Superior Court jury convicted the
appellant, Ronald Davis, of Possession of a Deadly Weapon by a Person
Prohibited and Resisting Arrest. In December 2013, the Superior Court
granted the State’s habitual offender motion and sentenced Davis to a total
of nine years at Level V. This is Davis’ direct appeal.
(2) On appeal, Davis’ trial counsel has filed a brief and a motion to
withdraw pursuant to Supreme Court Rule 26(c) (“Rule 26(c)”) asserting that there are no arguably appealable issues. Davis, through his trial
counsel, has submitted several points for the Court’s consideration. The
State has responded to Davis’ points and has moved to affirm the Superior
Court judgment.
(3) When reviewing a motion to withdraw and an accompanying
brief under Rule 26(c), this Court must be satisfied that the defendant’s
counsel has made a conscientious examination of the record and the law for
arguable claims.1 The Court must also conduct its own review of the record
and determine whether the appeal is so totally devoid of at least arguably
appealable issues that it can be decided without an adversary presentation.2
(4) The State’s first witness was Wilmington Police Officer Gaetan
MacNamara. Officer MacNamara testified that shortly after 2:00 a.m. on
November 21, 2012, as he was sitting in his patrol car on West Third Street
in Wilmington, a green Honda Accord drove through a stop sign and almost
struck his car. Officer MacNamara activated the patrol car’s overhead
emergency equipment and attempted to stop the Accord for the traffic
violations. When the Accord failed to stop, a vehicle chase ensued.
According to Office MacNamara, over the course of the chase, which lasted
1 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 2 Id. 2 for several city blocks, the driver of the Accord disregarded several more
stop signs and attempted to elude the police car. Ultimately, when the
Accord sustained a flat tire, the driver exited the car and fled on foot into a
nearby residential area.
(5) Officer MacNamara and Wilmington Police Officer John
Santiago pursued Davis on foot. During the foot chase, Officer MacNamara
and Officer Santiago saw Davis throw a dark semiautomatic-style gun into
an alley between two houses. Both officers also heard the sound of
something metal hitting the asphalt. At that point, Officer MacNamara
stopped chasing Davis to secure the area where Davis had thrown the gun.
Office Santiago continued chasing Davis down another alleyway where he
apprehended him after a brief struggle.
(6) Office MacNamara found a loaded .9 millimeter handgun in the
alley where he saw Davis throw the gun. Upon finding the gun, Officer
MacNamara alerted the other officers in the area who were looking for the
gun, and called for the evidence detection unit to retrieve it. One of the
other officers in the area, Wilmington Police Officer Steven Bender, testified
that he was standing next to the handcuffed Davis when he heard the shout
that the gun was recovered. According to Officer Bender, upon hearing the
3 shout about the gun, Davis looked at him, and said, “I know you all found it.
I had the gun, but it ain’t mine.”3
(7) Officer MacNamara testified that the gun recovered in the alley
was loaded with eight .380-caliber rounds of ammunition. Officer
MacNamara further testified that when he and other officers executed a
search warrant later that day at 102 North Van Buren Street, Davis’ listed
address, they found “another .380-caliber round, same make, same model”
inside an aquarium in the basement.4
(8) In his first point on appeal, Davis claims that the State withheld
“potentially exculpatory evidence” when the State obtained a sample of his
DNA, “to see if [his] DNA matched the fingerprints on the gun that was
found,” but then did not submit the sample for testing and did not present
any DNA evidence at trial. Because Davis did not raise the claim in the
Superior Court, we have reviewed the claim for “plain error.”5 Plain error is
error that is “so clearly prejudicial to substantial rights as to jeopardize the
fairness and integrity of the trial process.”6
3 Trial Tr. at 81 (Sept. 5, 2013). 4 Id. at 28-29. 5 Del. Supr. Ct. R. 8. 6 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (citations omitted). 4 (9) Contrary to Davis’ claim on appeal, Delaware law does not
require that the State perform any specific testing on the physical evidence
that it gathers.7 In the absence of any indication that Davis requested DNA
testing or that DNA testing would have affirmatively proven that he did not
possess the gun, Davis has not demonstrated that he was prejudiced by the
State’s decision not to submit his DNA sample for testing and not to present
any DNA evidence at trial.
(10) Davis’ second point on appeal alleges a speedy trial violation.
When assessing a speedy trial violation, the Court considers four factors: (i)
the length of the delay; (ii) the reason for the delay; (iii) the defendant’s
assertion of the right, and (iv) prejudice to the defendant.8 Unless the delay
is lengthy enough to be presumptively prejudicial, there is no need to inquire
into the remaining factors.9
(11) In this case, it appears from the docket that Davis was convicted
on September 5, 2013, approximately nine and one-half months after his
arrest on November 21, 2012 and roughly eight months after his indictment
7 Anderson v. State, 1999 WL 504332, *2 (Del. Mar. 18, 1999) (citing Deberry v. State, 457 A.2d 744, 751 (Del. 1983)). 8 Hicks v. State, 2011 WL 2937393, *2 (Del. July 21, 2011) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). 9 Id. (citing Middlebrook v. State, 802 A.2d 268, 273-74 (Del. 2002). 5 on January 7, 2013.10 It further appears that Davis was released on bail on
November 29, 2012 and remained out on bail until his conviction on
September 5, 2013.11 Under these circumstances, we do not find the delay in
this case to be presumptively prejudicial and conclude without further
analysis that Davis’ claim of a speedy trial violation is without merit.12
(12) In his third point on appeal, Davis claims that the prosecutor
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
RONALD DAVIS, § § No. 691, 2013 Defendant Below, § Appellant, § Court Below–Superior Court § of the State of Delaware in v. § and for New Castle County § STATE OF DELAWARE, § § Plaintiff Below, § Cr. ID No. 1211016788 Appellee. §
Submitted: June 2, 2014 Decided: August 12, 2014
Before STRINE, Chief Justice, HOLLAND and RIDGELY, Justices.
ORDER
This 12th day of August 2014, upon consideration of the appellant’s
brief filed under Supreme Court Rule 26(c), his attorney’s motion to
withdraw, and the State’s response, it appears to the Court that:
(1) In September 2013, a Superior Court jury convicted the
appellant, Ronald Davis, of Possession of a Deadly Weapon by a Person
Prohibited and Resisting Arrest. In December 2013, the Superior Court
granted the State’s habitual offender motion and sentenced Davis to a total
of nine years at Level V. This is Davis’ direct appeal.
(2) On appeal, Davis’ trial counsel has filed a brief and a motion to
withdraw pursuant to Supreme Court Rule 26(c) (“Rule 26(c)”) asserting that there are no arguably appealable issues. Davis, through his trial
counsel, has submitted several points for the Court’s consideration. The
State has responded to Davis’ points and has moved to affirm the Superior
Court judgment.
(3) When reviewing a motion to withdraw and an accompanying
brief under Rule 26(c), this Court must be satisfied that the defendant’s
counsel has made a conscientious examination of the record and the law for
arguable claims.1 The Court must also conduct its own review of the record
and determine whether the appeal is so totally devoid of at least arguably
appealable issues that it can be decided without an adversary presentation.2
(4) The State’s first witness was Wilmington Police Officer Gaetan
MacNamara. Officer MacNamara testified that shortly after 2:00 a.m. on
November 21, 2012, as he was sitting in his patrol car on West Third Street
in Wilmington, a green Honda Accord drove through a stop sign and almost
struck his car. Officer MacNamara activated the patrol car’s overhead
emergency equipment and attempted to stop the Accord for the traffic
violations. When the Accord failed to stop, a vehicle chase ensued.
According to Office MacNamara, over the course of the chase, which lasted
1 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 2 Id. 2 for several city blocks, the driver of the Accord disregarded several more
stop signs and attempted to elude the police car. Ultimately, when the
Accord sustained a flat tire, the driver exited the car and fled on foot into a
nearby residential area.
(5) Officer MacNamara and Wilmington Police Officer John
Santiago pursued Davis on foot. During the foot chase, Officer MacNamara
and Officer Santiago saw Davis throw a dark semiautomatic-style gun into
an alley between two houses. Both officers also heard the sound of
something metal hitting the asphalt. At that point, Officer MacNamara
stopped chasing Davis to secure the area where Davis had thrown the gun.
Office Santiago continued chasing Davis down another alleyway where he
apprehended him after a brief struggle.
(6) Office MacNamara found a loaded .9 millimeter handgun in the
alley where he saw Davis throw the gun. Upon finding the gun, Officer
MacNamara alerted the other officers in the area who were looking for the
gun, and called for the evidence detection unit to retrieve it. One of the
other officers in the area, Wilmington Police Officer Steven Bender, testified
that he was standing next to the handcuffed Davis when he heard the shout
that the gun was recovered. According to Officer Bender, upon hearing the
3 shout about the gun, Davis looked at him, and said, “I know you all found it.
I had the gun, but it ain’t mine.”3
(7) Officer MacNamara testified that the gun recovered in the alley
was loaded with eight .380-caliber rounds of ammunition. Officer
MacNamara further testified that when he and other officers executed a
search warrant later that day at 102 North Van Buren Street, Davis’ listed
address, they found “another .380-caliber round, same make, same model”
inside an aquarium in the basement.4
(8) In his first point on appeal, Davis claims that the State withheld
“potentially exculpatory evidence” when the State obtained a sample of his
DNA, “to see if [his] DNA matched the fingerprints on the gun that was
found,” but then did not submit the sample for testing and did not present
any DNA evidence at trial. Because Davis did not raise the claim in the
Superior Court, we have reviewed the claim for “plain error.”5 Plain error is
error that is “so clearly prejudicial to substantial rights as to jeopardize the
fairness and integrity of the trial process.”6
3 Trial Tr. at 81 (Sept. 5, 2013). 4 Id. at 28-29. 5 Del. Supr. Ct. R. 8. 6 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (citations omitted). 4 (9) Contrary to Davis’ claim on appeal, Delaware law does not
require that the State perform any specific testing on the physical evidence
that it gathers.7 In the absence of any indication that Davis requested DNA
testing or that DNA testing would have affirmatively proven that he did not
possess the gun, Davis has not demonstrated that he was prejudiced by the
State’s decision not to submit his DNA sample for testing and not to present
any DNA evidence at trial.
(10) Davis’ second point on appeal alleges a speedy trial violation.
When assessing a speedy trial violation, the Court considers four factors: (i)
the length of the delay; (ii) the reason for the delay; (iii) the defendant’s
assertion of the right, and (iv) prejudice to the defendant.8 Unless the delay
is lengthy enough to be presumptively prejudicial, there is no need to inquire
into the remaining factors.9
(11) In this case, it appears from the docket that Davis was convicted
on September 5, 2013, approximately nine and one-half months after his
arrest on November 21, 2012 and roughly eight months after his indictment
7 Anderson v. State, 1999 WL 504332, *2 (Del. Mar. 18, 1999) (citing Deberry v. State, 457 A.2d 744, 751 (Del. 1983)). 8 Hicks v. State, 2011 WL 2937393, *2 (Del. July 21, 2011) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). 9 Id. (citing Middlebrook v. State, 802 A.2d 268, 273-74 (Del. 2002). 5 on January 7, 2013.10 It further appears that Davis was released on bail on
November 29, 2012 and remained out on bail until his conviction on
September 5, 2013.11 Under these circumstances, we do not find the delay in
this case to be presumptively prejudicial and conclude without further
analysis that Davis’ claim of a speedy trial violation is without merit.12
(12) In his third point on appeal, Davis claims that the prosecutor
misrepresented the evidence in the State’s opening statement when he told
the jury that “[t]here isn’t DNA or gunshot residue” in this case.13 Because
Davis did not object to the asserted prosecutorial misconduct at trial, and the
trial judge did not intervene sua sponte, we have reviewed the alleged
misconduct for plain error.14
(13) In an opening statement, a prosecutor “should confine his
remarks to evidence he intends to offer which he believes in good faith will
be available and admissible, and a brief statement of the issues in the
10 See docket at 22, 1 & 2, State v. Davis, Del. Super., Cr. ID No. 1211016788. 11 Id. 12 See Hughey v. State, 522 A.2d 335, 341 (Del. 1987) (finding that 10-month delay between arrest and trial was not presumptively prejudicial). 13 Trial Tr. at 15 (Sept. 4, 2013). 14 Williams v. State, 2014 WL 2803068, at *1 (Del. June 17, 2014) (quoting Torres v. State, 979 A.2d 1087, 1093-94 (Del. 2009)). 6 case.”15 A prosecutor should not “allude to any evidence unless there is a
good faith and reasonable basis for believing that such evidence will be
tendered and admitted into evidence.”16
(14) In this case, it appears that the prosecutor did not intend to offer
DNA or gunshot residue evidence and did not have a basis for believing that
either DNA or gunshot residue evidence would be “tendered and
admitted.”17 We therefore conclude that the prosecutor’s opening statement
telling the jury that the case would not include DNA or gunshot residue
evidence was accurate and did not misrepresent the evidence.
(15) In his fourth point on appeal, Davis challenges the sufficiency
of the evidence by highlighting several alleged inconsistencies in the
testimonies of Officer MacNamara and Officer Santiago. Davis also asserts,
as he did at trial, that there was insufficient evidence to prove that he lived at
102 North Van Buren Street, the residence where the police found the
ammunition.
(16) In a jury trial, the jury is the sole trier of fact responsible for
determining witness credibility, resolving conflicts in the testimony, and for
15 Hughes v. State, 437 A.2d 559, 566-67 (Del. 1981) (citing ABA Standards, the Prosecution and Defense Functions § 5.5 (Approved Draft, 1971)). 16 Id. 17 Id. 7 drawing any inferences from the proven facts.18 In this case, to the extent
Davis alleges inconsistencies in the testimony of Officer MacNamara and/or
Office Santiago, it was for the jury to determine the weight of the evidence
and to resolve any conflicts in the testimony.19 Also, the jury was entitled to
give more credence to Officer MacNamara’s testimony that he had seen
Davis “freely enter and exit [102 North Van Buren Street] easily over a
hundred times”20 than to Davis’ testimony that he had “never” been there.21
(17) In his fifth point on appeal, Davis contends that the Superior
Court should have excluded the trial testimony of Officer Santiago because
the State was required to disclose Officer Santiago as a witness in pretrial
discovery and did not. In the absence of any challenge to Officer Santiago’s
testimony, we have reviewed the claim for plain error.22
(18) Superior Court Criminal Rule 16, which governs discovery,
does not require that the State disclose its witnesses prior to trial.23 To the
18 Newman v. State, 942 A.2d 588, 595 (Del. 2008). 19 Kane v. State, 2013 WL 5519823, *2 (Del. Oct. 2, 2013) (citing Tyre v. State, 402 A.2d 326, 330 (Del. 1980)). 20 Trial Tr. at 114 (Sept. 5, 2013). 21 Id. at 88, 111 (Sept. 5, 2013). Pryor v. State, 453 A.2d 98, 100 (Del. 1982) 22 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986). 23 See Del. Super. Ct. Crim. R. 16(a)(2) (listing information not subject to disclosure). Accord Quirico v. State, 2004 WL 220328, *4 (Del. Jan. 27, 2004); Thompson v. State, 1991 WL 112884, *3 (Del. June 3, 1991). 8 extent Davis argues that he suffered prejudice because of an alleged
discovery violation by the State, he offers no factual support for that
argument.
(19) The Court concludes that Davis’ appeal is wholly without merit
and devoid of any arguably appealable issue. We are satisfied that Davis’
trial counsel made a conscientious effort to examine the record and the law
and properly determined that Davis could not raise a meritorious claim on
appeal.
NOW, THEREFORE, IT IS ORDERED that the State’s motion to
affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
The motion to withdraw is moot.
BY THE COURT:
/s/ Henry duPont Ridgely Justice