IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL JACKSON, § § No. 395, 2018 Defendant Below, § Appellant, § Court Below: Superior Court of the § State of Delaware v. § § Cr. ID No. 1608013519 (N) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §
Submitted: December 13, 2018 Decided: February 28, 2019
Before VALIHURA, SEITZ, and TRAYNOR, Justices.
ORDER
This 28th day of February 2019, upon consideration of the no-merit brief under
Supreme Court Rule 26(c), appellate counsel’s motion to withdraw, and the State’s
response, it appears to the Court that:
(1) In June 2017, the appellant was convicted of Possession of a Firearm by a
Person Prohibited, Possession of Ammunition by a Person Prohibited, Possession of a
Firearm during the Commission of a Felony, Disregarding a Police Officer’s Signal,
and Disregarding a Red Light. At sentencing, Jackson was declared a habitual offender
and was sentenced to a total of forty-three years of Level V incarceration suspended
after forty years for probation. This is Jackson’s direct appeal. (2) On appeal, Jackson’s appellate counsel has filed a no-merit brief and
motion to withdraw under Rule 26(c). Appellate counsel asserts that, based upon a
complete and careful examination of the record, there are no arguably appealable
issues. Jackson has supplemented the Rule 26(c) brief with claims for our
consideration. The State has responded to the position taken by Jackson’s appellate
counsel and the claims raised by Jackson and has moved to affirm the Superior Court’s
judgment.
(3) When considering a Rule 26(c) brief and motion to withdraw, our standard
and scope of review is twofold. 1 First, we must be satisfied that the appellant’s counsel
made a conscientious examination of the record and the law for claims that could
arguably support the appeal.2 Second, we must conduct our own review of the record
to determine whether the appeal is so totally devoid of at least arguably appealable
issues that it can be decided without an adversary presentation. 3
(4) The evidence at trial fairly established that, on August 17, 2016, between
6:00 and 7:00 p.m., Wilmington Police Detective Matthew Rosaio and his partner,
Probation Officer Joseph Scioli, were driving west on East 26th Street through the
intersection at Northeast Boulevard when a green Mercury Marquis traveling south
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 Penson v. Ohio, 488 U.S. at 83. 3 Id.
2 entered the same intersection against the red light. Midway through the intersection
the driver of the Mercury Marquis slammed on his brakes, which forced the other
drivers proceeding through the intersection on the green light—including Detective
Rosaio—to slam on their brakes. After about ten seconds, the driver of the Mercury
Marquis put his car in reverse and returned to where he should have stopped to properly
await a green light.
(5) Detective Rosaio activated the emergency equipment on his patrol vehicle
to stop the Mercury Marquis for the red light violation. The Mercury slowed down and
pulled over to the curb as if to stop but then sped off when Detective Rosaio exited the
patrol car. Due to the vehicle and pedestrian traffic in the area, Detective Rosaio did
not attempt to pursue the fleeing Mercury and instead relayed information about the
Mercury and its direction of travel to other officers in the immediate area.
(6) Detective Rosaio and Officer Scioli lost sight of the Mercury for about
fifteen seconds. When they saw it again, it was stopped at the intersection of West 26th
Street and North Washington Street. The front passenger door of the Mercury was
open, the front passenger seat was unoccupied, the keys were in the ignition, and the
car was running. When Detective Rosaio approached the driver side of the Mercury,
he saw that the driver’s seat was unoccupied. Detective Rosaio also saw a black
semiautomatic firearm with an extended magazine on the front driver side floorboard.
Wearing latex gloves, Detective Rosaio removed the magazine and one live round of
3 ammunition from the firearm and placed it on the passenger seat of the Mercury. When
moving the firearm, Detective Rosaio also found a black cell phone.
(7) Rather than take photographs of the Mercury Marquis and its contents at
the intersection of 26th Street and North Washington Street, Officer Scioli drove the
vehicle back to the station where he and Detective Rosaio took photographs of the
vehicle and collected the evidence. Eventually, the firearm and cell phone were
swabbed for DNA. Those swabs, and a buccal swab from Jackson, were sent to BODE
Laboratory (“BODE”) for DNA comparison. When filling out the laboratory
transmittal form, Detective Rosaio checked a box on the form giving BODE permission
to consume the entire DNA sample, if necessary.
(8) The entire DNA sample was consumed during the testing. The analyst’s
test results revealed that Jackson’s DNA was on the firearm and the magazine.
(9) At Jackson’s preliminary hearing, Detective Rosaio testified in error that
he photographed the Mercury Marquis at “the scene, [at] 26th and Washington.”4
Detective Rosaio corrected his misstatement later when he testified at a suppression
hearing that the photos “were actually taken at the police station.”5 At trial, Detective
Rosaio testified again that he photographed the Mercury Marquis and its contents at
4 Hr’g Tr. at 19 (Sept. 21, 2016). 5 Hr’g Tr. at 37 (Mar. 24, 2017). 4 the police station. 6 The photographs were admitted into evidence at trial without
objection. 7
(10) A month before trial, Jackson’s trial counsel filed a motion seeking a Lolly
instruction because of the State’s failure to preserve part of the DNA sample for use by
the defense or to notify the defense that the State had directed BODE to fully consume
the sample.8 On June 19, 2017, the Superior Court issued a preliminary decision
finding that the State had a duty to preserve the DNA sample. 9 The court reserved its
decision on the request for the Lolly instruction, however, until after the close of
evidence at trial.10
(11) On the first day of trial, Jackson’s trial counsel asked the Superior Court
to convert the motion seeking a Lolly instruction to a motion to suppress the DNA
evidence. Trial counsel argued that the evidence should be excluded because the jury
would be confused by an instruction telling them to give a favorable inference to the
defense when considering the evidence, when the jury had also heard that the same
evidence revealed a DNA match unfavorable to the defense. Trial counsel also
informed the court that Jackson wanted a bench trial rather than a jury trial. After
6 Trial Tr. at 152–53 (June 20, 2017). 7 Trial Tr. at 7 (June 21, 2017). 8 Lolly v. State, 611 A.2d 956 (Del. 1992). In a case where the State has failed to collect or preserve evidence that is material to the defense, a Lolly instruction tells the jury to assume that the missing evidence is favorable to the defense. McNair v.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL JACKSON, § § No. 395, 2018 Defendant Below, § Appellant, § Court Below: Superior Court of the § State of Delaware v. § § Cr. ID No. 1608013519 (N) STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §
Submitted: December 13, 2018 Decided: February 28, 2019
Before VALIHURA, SEITZ, and TRAYNOR, Justices.
ORDER
This 28th day of February 2019, upon consideration of the no-merit brief under
Supreme Court Rule 26(c), appellate counsel’s motion to withdraw, and the State’s
response, it appears to the Court that:
(1) In June 2017, the appellant was convicted of Possession of a Firearm by a
Person Prohibited, Possession of Ammunition by a Person Prohibited, Possession of a
Firearm during the Commission of a Felony, Disregarding a Police Officer’s Signal,
and Disregarding a Red Light. At sentencing, Jackson was declared a habitual offender
and was sentenced to a total of forty-three years of Level V incarceration suspended
after forty years for probation. This is Jackson’s direct appeal. (2) On appeal, Jackson’s appellate counsel has filed a no-merit brief and
motion to withdraw under Rule 26(c). Appellate counsel asserts that, based upon a
complete and careful examination of the record, there are no arguably appealable
issues. Jackson has supplemented the Rule 26(c) brief with claims for our
consideration. The State has responded to the position taken by Jackson’s appellate
counsel and the claims raised by Jackson and has moved to affirm the Superior Court’s
judgment.
(3) When considering a Rule 26(c) brief and motion to withdraw, our standard
and scope of review is twofold. 1 First, we must be satisfied that the appellant’s counsel
made a conscientious examination of the record and the law for claims that could
arguably support the appeal.2 Second, we must conduct our own review of the record
to determine whether the appeal is so totally devoid of at least arguably appealable
issues that it can be decided without an adversary presentation. 3
(4) The evidence at trial fairly established that, on August 17, 2016, between
6:00 and 7:00 p.m., Wilmington Police Detective Matthew Rosaio and his partner,
Probation Officer Joseph Scioli, were driving west on East 26th Street through the
intersection at Northeast Boulevard when a green Mercury Marquis traveling south
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 Penson v. Ohio, 488 U.S. at 83. 3 Id.
2 entered the same intersection against the red light. Midway through the intersection
the driver of the Mercury Marquis slammed on his brakes, which forced the other
drivers proceeding through the intersection on the green light—including Detective
Rosaio—to slam on their brakes. After about ten seconds, the driver of the Mercury
Marquis put his car in reverse and returned to where he should have stopped to properly
await a green light.
(5) Detective Rosaio activated the emergency equipment on his patrol vehicle
to stop the Mercury Marquis for the red light violation. The Mercury slowed down and
pulled over to the curb as if to stop but then sped off when Detective Rosaio exited the
patrol car. Due to the vehicle and pedestrian traffic in the area, Detective Rosaio did
not attempt to pursue the fleeing Mercury and instead relayed information about the
Mercury and its direction of travel to other officers in the immediate area.
(6) Detective Rosaio and Officer Scioli lost sight of the Mercury for about
fifteen seconds. When they saw it again, it was stopped at the intersection of West 26th
Street and North Washington Street. The front passenger door of the Mercury was
open, the front passenger seat was unoccupied, the keys were in the ignition, and the
car was running. When Detective Rosaio approached the driver side of the Mercury,
he saw that the driver’s seat was unoccupied. Detective Rosaio also saw a black
semiautomatic firearm with an extended magazine on the front driver side floorboard.
Wearing latex gloves, Detective Rosaio removed the magazine and one live round of
3 ammunition from the firearm and placed it on the passenger seat of the Mercury. When
moving the firearm, Detective Rosaio also found a black cell phone.
(7) Rather than take photographs of the Mercury Marquis and its contents at
the intersection of 26th Street and North Washington Street, Officer Scioli drove the
vehicle back to the station where he and Detective Rosaio took photographs of the
vehicle and collected the evidence. Eventually, the firearm and cell phone were
swabbed for DNA. Those swabs, and a buccal swab from Jackson, were sent to BODE
Laboratory (“BODE”) for DNA comparison. When filling out the laboratory
transmittal form, Detective Rosaio checked a box on the form giving BODE permission
to consume the entire DNA sample, if necessary.
(8) The entire DNA sample was consumed during the testing. The analyst’s
test results revealed that Jackson’s DNA was on the firearm and the magazine.
(9) At Jackson’s preliminary hearing, Detective Rosaio testified in error that
he photographed the Mercury Marquis at “the scene, [at] 26th and Washington.”4
Detective Rosaio corrected his misstatement later when he testified at a suppression
hearing that the photos “were actually taken at the police station.”5 At trial, Detective
Rosaio testified again that he photographed the Mercury Marquis and its contents at
4 Hr’g Tr. at 19 (Sept. 21, 2016). 5 Hr’g Tr. at 37 (Mar. 24, 2017). 4 the police station. 6 The photographs were admitted into evidence at trial without
objection. 7
(10) A month before trial, Jackson’s trial counsel filed a motion seeking a Lolly
instruction because of the State’s failure to preserve part of the DNA sample for use by
the defense or to notify the defense that the State had directed BODE to fully consume
the sample.8 On June 19, 2017, the Superior Court issued a preliminary decision
finding that the State had a duty to preserve the DNA sample. 9 The court reserved its
decision on the request for the Lolly instruction, however, until after the close of
evidence at trial.10
(11) On the first day of trial, Jackson’s trial counsel asked the Superior Court
to convert the motion seeking a Lolly instruction to a motion to suppress the DNA
evidence. Trial counsel argued that the evidence should be excluded because the jury
would be confused by an instruction telling them to give a favorable inference to the
defense when considering the evidence, when the jury had also heard that the same
evidence revealed a DNA match unfavorable to the defense. Trial counsel also
informed the court that Jackson wanted a bench trial rather than a jury trial. After
6 Trial Tr. at 152–53 (June 20, 2017). 7 Trial Tr. at 7 (June 21, 2017). 8 Lolly v. State, 611 A.2d 956 (Del. 1992). In a case where the State has failed to collect or preserve evidence that is material to the defense, a Lolly instruction tells the jury to assume that the missing evidence is favorable to the defense. McNair v. State, 990 A.2d 398, 400 n.1 (Del. 2010). 9 2017 WL 2651711 (Del. Super. June 19, 2017). 10 Id. 5 conducting the required colloquy with Jackson, the Superior Court accepted Jackson’s
jury trial waiver as knowing and voluntary. After that, the Superior Court ruled that it
would exclude the DNA evidence. At the conclusion of the bench trial, the Superior
Court found Jackson guilty of the charged offenses based on the trial testimony of
Detective Rosaio and Officer Scioli—who observed the driver of the Mercury
Marquis—and evidence establishing that the cell phone in the Mercury belonged to
Jackson and that the loaded firearm was at the driver’s feet.
(12) In his first claim on appeal, Jackson claims that Detective Rosaio
committed perjury at the preliminary hearing when testifying that he took photographs
of the Mercury Marquis at the scene. Jackson also claims that the prosecutor
knowingly used the perjured testimony at trial. Because the claims were not raised at
trial, we have reviewed them for plain error. 11
(13) Under the Delaware Code, a person is guilty of perjury when the person
“swears falsely.”12 “A person ‘swears falsely’ when the person intentionally makes a
false statement or affirms the truth of a false statement previously made, knowing it to
be false or not believing it to be true, while giving testimony.” 13
(14) Jackson has not demonstrated, and the record does not reflect, that
Detective Rosaio intentionally made a false statement at the preliminary hearing when
11 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986). 12 11 Del. C. §§ 1221–1223. 13 Id. § 1224 (Supp. 2019). 6 he testified about where the photographs were taken. Jackson also has not
demonstrated how he was prejudiced by the misstatement. There is no indication in
the record that the prosecutor argued that the photographs were taken at the scene. On
plain error review, Jackson’s claims are without merit.
(15) In his second claim on appeal, Jackson claims that the trial judge’s
decision to exclude the DNA evidence rather than to make an inference that the
evidence was exculpatory was an abuse of discretion. Jackson’s assertion disregards
his trial counsel’s tactical decision to seek exclusion of the evidence rather than the
Lolly inference. Jackson’s disagreement with his trial counsel’s strategy is in the nature
of an ineffective assistance of counsel claim. Because we do not consider an ineffective
assistance of counsel claim on direct appeal, we decline to consider the claim as part
of this appeal. 14
(16) Having carefully reviewed the record, we conclude that Jackson’s appeal
is wholly without merit and devoid of any arguably appealable issue. We are satisfied
that Jackson’s appellate counsel made a conscientious effort to examine the record and
the law and properly determined that Jackson could not raise a meritorious claim on
appeal.
14 Desmond v. State, 654 A.2d 821, 829 (Del. 1994). 7 NOW, THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED.
The judgment of convictions is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Gary F. Traynor Justice