IN THE SUPREME COURT OF THE STATE OF DELAWARE
JESSIE THOMAS, § § No. 501, 2014 Defendant Below, § Appellant, § Court Below–Superior Court § of the State of Delaware in v. § and for New Castle County § STATE OF DELAWARE, § Cr. ID No. 1304013732 § Plaintiff Below, § Appellee. §
Submitted: February 11, 2015 Decided: May 8, 2015
Before HOLLAND, VALIHURA and VAUGHN, Justices.
ORDER
This 8th day of May 2015, upon consideration of the appellant’s brief
filed pursuant to Supreme Court Rule 26(c), his attorney’s motion to
withdraw, and the State’s response, it appears to the Court that:
(1) In May 2013, the appellant, Jessie Thomas, was indicted on two
counts of Possession of a Firearm by a Person Prohibited (“PFBPP”), two
counts of Carrying a Concealed Deadly Weapon (“CCDW”), and one count
of Possession of Ammunition by a Person Prohibited (“PABPP”). At
Thomas’ jury trial in February 2014, the parties stipulated that Thomas was
a person prohibited from possessing a firearm and ammunition. (2) The jury convicted Thomas of one count each of PFBPP and
CCDW and the single count of PABPP and acquitted him on the remaining
counts. On August 28, 2014, the Superior Court sentenced Thomas to a total
of twenty-one years at Level V imprisonment, suspended after seven years
for decreasing levels of supervision. This is Thomas’ direct appeal.
(3) On appeal, Thomas’ appellate counsel (“Counsel”) has filed a
brief and a motion to withdraw under Supreme Court Rule 26(c) (“Rule
26(c)”).1 Counsel asserts that, based upon a complete and careful
examination of the record, there are no arguably appealable issues. Thomas,
through Counsel, has submitted six claims for the Court’s consideration. In
its response, the State has moved to affirm the Superior Court’s judgment.
(4) When reviewing a motion to withdraw and an accompanying
brief under Rule 26(c), this Court must be satisfied that the appellant’s
counsel has made a conscientious examination of the record and the law for
arguable claims.2 Also, the Court must conduct its own review of the record
and determine whether “the appeal is indeed so frivolous that it may be
decided without an adversary presentation.”3
1 Thomas was represented by different counsel at trial. 2 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). 3 Penson v. Ohio, 488 U.S. at 81. 2 (5) In this case, the probable cause affidavit in the Superior Court
record reflects that, during the evening of April 15, 2013, Wilmington Police
Officer Anthony Easterling received a confidential tip that a black male
known as “Black Nose” had just pointed a firearm at another black male
known as “Ike.” The confidential informant told Officer Easterling that the
location of the disturbance was Sixth and Jefferson Streets, and that Black
Nose was dressed in a gray jacket and blue jeans and driving a white Volvo.
(6) Officer Easterling relayed the confidential tip to Detective
Robert Fox. At approximately 8:50 p.m., Detective Fox radioed the tip to
Officer Matthew Geiser and Corporal Justin Cannon (collectively “Geiser
and Cannon”), who were on patrol in the area. When driving the short
distance to Sixth and Jefferson Streets, Geiser and Cannon were contacted
by Detective Steven Barnes, who advised that he knew Black Nose as Jessie
Thomas.
(7) Upon arriving at Sixth and Jefferson Streets, Geiser and
Cannon observed a white Volvo station wagon parked on the west side of
Jefferson Street. Although the Volvo’s side and back windows were heavily
tinted, Geiser and Cannon could see through the front windshield that a
black male wearing a gray jacket was sitting in the driver’s seat.
3 (8) After circling the block, Geiser and Cannon followed the
Volvo, as it had started travelling north on Jefferson Street. In the 800 block
of Jefferson Street, after observing the Volvo pull to the side of the road
without signaling, Geiser and Cannon activated the patrol vehicle’s
emergency equipment and initiated a vehicle stop.
(9) Officer Geiser made contact with the driver while Corporal
Cannon remained in the patrol vehicle to call in the stop. When approaching
the driver’s side of the Volvo, Officer Geiser could see that the driver was
sitting in the driver’s seat with his hand out of the window. Officer Geiser
advised the driver that he could not see into the Volvo due to the heavy
window tinting, and he asked the driver to keep his hands in plain sight.
When the driver abruptly moved his hands into his lap, Officer Geiser pulled
his service weapon and directed the driver to get out of the car. At trial,
Officer Geiser testified that he drew his weapon because he could not see
what the driver was doing and he “was too close to the car to retreat in case
[the driver] had something.”4 Once the driver was outside of the car, Officer
Geiser moved the driver to the rear bumper area where another officer patted
him down. While this was happening, Officer Joseph Lucyk, who had
arrived as back up, checked the Volvo for passengers.
4 Trial tr. at 15 (Feb. 26, 2014). 4 (10) At trial, Officer Lucyk testified that, from where he stood
outside the still-open door of the Volvo, he could see the barrel of a gun
protruding from underneath the driver’s seat. Officer Lucyk immediately
alerted the other officers that the driver should be taken into custody. At that
point, the driver, Thomas, was placed under arrest, and Officer Lucyk left
the scene to respond to another call. At trial, Officer Lucyk estimated that
he was at the scene a total of “three to six minutes.”5
(11) After Thomas was arrested and secured in Geiser and Cannon’s
patrol vehicle, Officer Geiser drove him to the police station. Corporal
Cannon drove the Volvo to the police station and secured it in the staff
garage. Later that evening, after obtaining a search warrant, Corporal
Cannon and other officers searched the Volvo. They seized a loaded semi-
automatic Taurus handgun from under the front seat, a loaded semi-
automatic Mauser handgun that was found to the left of the brake pedal, and
personal papers and photographs of Thomas.
(12) On appeal, Thomas has raised six overlapping claims of error,
including ineffective assistance of counsel. None of Thomas’ claims was
raised at trial. As a result, with the exception of the ineffective counsel
5 Id. at 41. 5 claim, which is not reviewable on direct appeal,6 we have reviewed the
claims for plain error.7 Plain error is error that is “so clearly prejudicial to
substantial rights as to jeopardize the fairness and integrity of the trial
process.”8
(13) Thomas claims that Detective Barnes’ trial testimony was
inadmissible hearsay. On plain error review, the claim is without merit. The
record reflects that Detective Barnes’ testimony was limited to his personal
experience and first-hand observations of Black Nose, who Detective Barnes
knew as Thomas. Detective Barnes’ testimony was not hearsay.9
(14) Thomas claims that Geiser and Cannon did not have a
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
JESSIE THOMAS, § § No. 501, 2014 Defendant Below, § Appellant, § Court Below–Superior Court § of the State of Delaware in v. § and for New Castle County § STATE OF DELAWARE, § Cr. ID No. 1304013732 § Plaintiff Below, § Appellee. §
Submitted: February 11, 2015 Decided: May 8, 2015
Before HOLLAND, VALIHURA and VAUGHN, Justices.
ORDER
This 8th day of May 2015, upon consideration of the appellant’s brief
filed pursuant to Supreme Court Rule 26(c), his attorney’s motion to
withdraw, and the State’s response, it appears to the Court that:
(1) In May 2013, the appellant, Jessie Thomas, was indicted on two
counts of Possession of a Firearm by a Person Prohibited (“PFBPP”), two
counts of Carrying a Concealed Deadly Weapon (“CCDW”), and one count
of Possession of Ammunition by a Person Prohibited (“PABPP”). At
Thomas’ jury trial in February 2014, the parties stipulated that Thomas was
a person prohibited from possessing a firearm and ammunition. (2) The jury convicted Thomas of one count each of PFBPP and
CCDW and the single count of PABPP and acquitted him on the remaining
counts. On August 28, 2014, the Superior Court sentenced Thomas to a total
of twenty-one years at Level V imprisonment, suspended after seven years
for decreasing levels of supervision. This is Thomas’ direct appeal.
(3) On appeal, Thomas’ appellate counsel (“Counsel”) has filed a
brief and a motion to withdraw under Supreme Court Rule 26(c) (“Rule
26(c)”).1 Counsel asserts that, based upon a complete and careful
examination of the record, there are no arguably appealable issues. Thomas,
through Counsel, has submitted six claims for the Court’s consideration. In
its response, the State has moved to affirm the Superior Court’s judgment.
(4) When reviewing a motion to withdraw and an accompanying
brief under Rule 26(c), this Court must be satisfied that the appellant’s
counsel has made a conscientious examination of the record and the law for
arguable claims.2 Also, the Court must conduct its own review of the record
and determine whether “the appeal is indeed so frivolous that it may be
decided without an adversary presentation.”3
1 Thomas was represented by different counsel at trial. 2 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). 3 Penson v. Ohio, 488 U.S. at 81. 2 (5) In this case, the probable cause affidavit in the Superior Court
record reflects that, during the evening of April 15, 2013, Wilmington Police
Officer Anthony Easterling received a confidential tip that a black male
known as “Black Nose” had just pointed a firearm at another black male
known as “Ike.” The confidential informant told Officer Easterling that the
location of the disturbance was Sixth and Jefferson Streets, and that Black
Nose was dressed in a gray jacket and blue jeans and driving a white Volvo.
(6) Officer Easterling relayed the confidential tip to Detective
Robert Fox. At approximately 8:50 p.m., Detective Fox radioed the tip to
Officer Matthew Geiser and Corporal Justin Cannon (collectively “Geiser
and Cannon”), who were on patrol in the area. When driving the short
distance to Sixth and Jefferson Streets, Geiser and Cannon were contacted
by Detective Steven Barnes, who advised that he knew Black Nose as Jessie
Thomas.
(7) Upon arriving at Sixth and Jefferson Streets, Geiser and
Cannon observed a white Volvo station wagon parked on the west side of
Jefferson Street. Although the Volvo’s side and back windows were heavily
tinted, Geiser and Cannon could see through the front windshield that a
black male wearing a gray jacket was sitting in the driver’s seat.
3 (8) After circling the block, Geiser and Cannon followed the
Volvo, as it had started travelling north on Jefferson Street. In the 800 block
of Jefferson Street, after observing the Volvo pull to the side of the road
without signaling, Geiser and Cannon activated the patrol vehicle’s
emergency equipment and initiated a vehicle stop.
(9) Officer Geiser made contact with the driver while Corporal
Cannon remained in the patrol vehicle to call in the stop. When approaching
the driver’s side of the Volvo, Officer Geiser could see that the driver was
sitting in the driver’s seat with his hand out of the window. Officer Geiser
advised the driver that he could not see into the Volvo due to the heavy
window tinting, and he asked the driver to keep his hands in plain sight.
When the driver abruptly moved his hands into his lap, Officer Geiser pulled
his service weapon and directed the driver to get out of the car. At trial,
Officer Geiser testified that he drew his weapon because he could not see
what the driver was doing and he “was too close to the car to retreat in case
[the driver] had something.”4 Once the driver was outside of the car, Officer
Geiser moved the driver to the rear bumper area where another officer patted
him down. While this was happening, Officer Joseph Lucyk, who had
arrived as back up, checked the Volvo for passengers.
4 Trial tr. at 15 (Feb. 26, 2014). 4 (10) At trial, Officer Lucyk testified that, from where he stood
outside the still-open door of the Volvo, he could see the barrel of a gun
protruding from underneath the driver’s seat. Officer Lucyk immediately
alerted the other officers that the driver should be taken into custody. At that
point, the driver, Thomas, was placed under arrest, and Officer Lucyk left
the scene to respond to another call. At trial, Officer Lucyk estimated that
he was at the scene a total of “three to six minutes.”5
(11) After Thomas was arrested and secured in Geiser and Cannon’s
patrol vehicle, Officer Geiser drove him to the police station. Corporal
Cannon drove the Volvo to the police station and secured it in the staff
garage. Later that evening, after obtaining a search warrant, Corporal
Cannon and other officers searched the Volvo. They seized a loaded semi-
automatic Taurus handgun from under the front seat, a loaded semi-
automatic Mauser handgun that was found to the left of the brake pedal, and
personal papers and photographs of Thomas.
(12) On appeal, Thomas has raised six overlapping claims of error,
including ineffective assistance of counsel. None of Thomas’ claims was
raised at trial. As a result, with the exception of the ineffective counsel
5 Id. at 41. 5 claim, which is not reviewable on direct appeal,6 we have reviewed the
claims for plain error.7 Plain error is error that is “so clearly prejudicial to
substantial rights as to jeopardize the fairness and integrity of the trial
process.”8
(13) Thomas claims that Detective Barnes’ trial testimony was
inadmissible hearsay. On plain error review, the claim is without merit. The
record reflects that Detective Barnes’ testimony was limited to his personal
experience and first-hand observations of Black Nose, who Detective Barnes
knew as Thomas. Detective Barnes’ testimony was not hearsay.9
(14) Thomas claims that Geiser and Cannon did not have a
legitimate basis to stop the Volvo. On plain error review, the claim is
without merit. The record reflects that Geiser and Cannon had probable
cause to stop the Volvo for the traffic violation they observed.10
6 Desmond v. State, 654 A.2d 821, 829 (Del. 1994). 7 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986). 8 Id. 9 Jenkins v. State, 8 A.3d 1147, 1153 (Del. 2010) (concluding that witness’ testimony “based on firsthand observations of which he had personal knowledge” was not hearsay). 10 Holden v. State, 23 A.3d 843, 847 (Del. 2011) (citing Whren v. United States, 517 U.S. 806, 810 (1996)). 6 (15) Thomas claims that, even if the initial traffic stop was valid,
Officer Geiser’s conduct during the stop violated Thomas’ right to be free
from unreasonable search and seizure.
During a lawful traffic stop, a police officer may order . . . the driver . . . out of the vehicle pending completion of the traffic stop. The scope and duration of the detention must be reasonably related to the initial justification for the traffic stop. A police officer may not conduct a pat down search of a person during a traffic stop unless the office has reasonable suspicion that the person subject to the frisk is armed and dangerous.11
In this case, the Court finds, based on the record, that Officer Geiser had a
reasonable belief that Thomas was armed and dangerous when, as Geiser
approached the Volvo, Thomas suddenly concealed his hands.12 On plain
error review, Thomas’ claim to the contrary is without merit.
(16) Thomas claims that Officer Geiser’s trial testimony concerning
the reported disturbance at Sixth and Jefferson Streets was inadmissible
hearsay. On plain error review, the claim is without merit. Officer Geiser’s
testimony about the reported disturbance was not a “principal factor” in
11 Holden v. State, 23 A.3d 843, 847 (Del. 2011) (citations omitted). See also Rodriguez v. United States, No. 13-9972, 2015 WL 1780927 (U.S. April 21, 2015) (holding that police may not extend otherwise-completed traffic stop, absent reasonable suspicion, to conduct dog sniff). 12 Moore v. State, 997 A.2d 656, 666-67 (Del. 2010). 7 Thomas’ convictions. 13 Thomas convictions were based on evidence seized
under a search warrant issued after a lawful traffic stop. To the extent
Officer Geiser’s testimony was inadmissible hearsay, its admission was
harmless error.14
(17) Thomas claims that there was insufficient evidence to support
his convictions. On plain error review, the claim is without merit. When a
defendant claims that the evidence against him was insufficient to support a
jury verdict, this Court must determine “whether any rational trier of fact,
viewing the evidence in the light most favorable to the State, could find the
defendant guilty beyond a reasonable doubt.”15 In this case, viewing the
evidence in the light most favorable to the State, a reasonable jury could
find, beyond a reasonable doubt, that Thomas, a person prohibited, was
guilty of PFBPP (possessing a firearm), CCDW (carrying a concealed
deadly weapon), and PABPP (possessing ammunition).
13 Compare Williams v. State, 98 A.3d 917, 922 (Del. 2014) (holding that any error in admission of non-testifying police dispatcher’s out-of-court statements to responding officer was harmless because the statements were not a principal factor in the conviction), with Sanabria v. State, 974 A.2d 107, 121 (Del. 2009) (holding that admission of non- testifying police dispatcher’s out-of-court statements to responding officer was unduly prejudicial when statements were admitted without a limiting instruction and were a principal factor in the conviction). 14 Williams v. State, 98 A.3d 917, 922 (Del. 2014). 15 Robertson v. State, 596 A.2d 1345, 1355 (Del. 1993). 8 (18) The Court has reviewed the record carefully and has concluded
that Thomas’ appeal is wholly without merit and devoid of any arguably
appealable issue. We are satisfied that Counsel made a conscientious effort
to examine the record and the law and properly determined that Thomas
could not raise a meritorious claim on direct 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/ Karen L. Valihura Justice