IN THE SUPREME COURT OF THE STATE OF DELAWARE
DOMINIQUE TISINGER, § § No. 198, 2024 Defendant Below, § Appellant, § Court Below–Superior Court § of the State of Delaware v. § § Cr. ID No. 1510007181 (N) STATE OF DELAWARE, § § Appellee. §
Submitted: June 18, 2025 Decided: July 22, 2025
Before SEITZ, Chief Justice; LEGROW and GRIFFITHS, Justices.
ORDER
After consideration of the brief and motion to withdraw filed by the
appellant’s counsel under Supreme Court Rule 26(c), counsel’s supplemental Rule
26(c) brief, the appellee’s response, and the Superior Court record, it appears to the
Court that:
(1) In December 2015, a Superior Court grand jury indicted the appellant,
Dominique Tisinger, for possession of a firearm by a person prohibited, possession
of ammunition by a person prohibited, carrying a concealed deadly weapon, resisting
arrest, and attempted third-degree escape. Following a one-day bench trial, the
Superior Court found Tisinger guilty on all counts and ordered a presentence
investigation. Before sentencing, the State dismissed the attempted third-degree escape charge. On October 7, 2016, the Superior Court sentenced Tisinger to an
aggregate of ten years of unsuspended incarceration, followed by decreasing levels
of community supervision.1
(2) The evidence presented at trial established the following. The morning
of October 12, 2015, Wilmington Police Department Officer Steven Parrott was
dispatched to the intersection of Lancaster Avenue and Union Street in Wilmington,
Delaware, in response to 911 calls claiming that a man was, in Officer Parrott’s
words, “waving a gun around threatening people.”2 The State introduced a 911 call
placed by a female who excitedly told the dispatcher that a black male and a white
male had chased her from the KFC on Lancaster Avenue across the street to the Auto
Zone. The caller described the black male, who continued to pursue her, as wearing
a black hoodie and white jeans and wielding a gun with a black handle. At Auto
Zone, a witness (the “Auto Zone Witness”) told Officer Parrott that she had seen “a
man armed with a gun [that he had been] waving . . . around.”3 The Auto Zone
Witness described the man as wearing a black hoodie and white jeans and walking
1 Following Tisinger’s 2016 sentencing, trial counsel did not file a notice of appeal. Tisinger then timely moved for postconviction relief, arguing that trial counsel was ineffective for, among other things, failing to file a notice of appeal on his behalf. The Superior Court agreed on this point and vacated its sentencing order. State v. Tisinger, 2024 WL 1757229 (Del. Super. Ct. Apr. 23, 2024). On May 13, 2024, the Superior Court resentenced Tisinger to his original sentence, with slight modifications to its probationary terms. This appeal followed. 2 App. to Rule 26(c) Br. at A59. 3 Id. at A62. 2 with a white male in the area of the Save A Lot grocery store, farther east on
Lancaster Avenue.
(3) Officer Parrott responded to the Save A Lot parking lot and observed a
man wearing a black hoodie and white jeans walking with a white male on the
opposite side of the street. Officer Parrott followed the men in his marked police
vehicle and pulled up alongside them. At the same time, backup officers Detective
Robert Fox and Detective Charles Puit pulled up behind Officer Parrott in their
unmarked Crown Victoria. Officer Parrott ordered the men to stop. The man in the
white jeans and black hoodie—later identified as Tisinger—fled. All three officers
exited their vehicles. As Tisinger ran, Detective Puit observed him pull a small black
handgun from his waistband and fling it over a fence into a nearby backyard.
Detective Puit immediately secured the handgun while Detective Fox and Officer
Parrott returned to their respective vehicles and pursued Tisinger. Tisinger’s efforts
to evade the officers were unsuccessful, and he was arrested. After ascertaining
Tisinger’s identity, the police learned that he was a person prohibited from
possessing a firearm.
(4) On appeal, counsel filed a brief and a motion to withdraw under Rule
26(c). Counsel asserted that, after a complete and careful examination of the record,
he could not identify any arguably appealable issues. Counsel informed Tisinger of
the provisions of Rule 26(c), provided him with a copy of the motion to withdraw
3 and a draft of the accompanying brief, and informed him of his right to supplement
his attorney’s presentation. Tisinger raised issues for the Court’s consideration,
which counsel attached to the Rule 26(c) brief. Specifically, Tisinger argued that (i)
the prosecution withheld exculpatory information in violation of Brady v.
Maryland;4 and (ii) the Superior Court improperly admitted hearsay evidence at trial.
The State responded to the Rule 26(c) brief and moved to affirm the Superior Court’s
judgment.
(5) The Court granted counsel’s motion to withdraw and appointed new
counsel (“Substitute Counsel”). Substitute Counsel filed a brief and a motion to
withdraw under Rule 26(c), asserting that he, too, could not identify any arguably
appealable issues after a complete and careful examination of the record. The Court
then asked Substitute Counsel to specifically address Tisinger’s argument that the
Superior Court improperly admitted hearsay evidence at trial. Substitute Counsel
submitted a supplemental brief, arguing that the Superior Court did not improperly
admit hearsay evidence at trial. The State has responded to Substitute Counsel’s
briefs and has moved to affirm the Superior Court’s judgment.
(6) The standard and scope of review applicable to the consideration of a
motion to withdraw and an accompanying brief under Rule 26(c) is twofold. First,
the Court must be satisfied that defense counsel has made a conscientious
4 373 U.S. 83 (1963). 4 examination of the record and the law for claims that could be arguably raised on
appeal. 5 Second, the Court must 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.6
(7) In response to Substitute Counsel’s Rule 26(c) brief, Tisinger has not
submitted any points for this Court’s consideration. We nevertheless incorporate the
arguments that Tisinger raised in response to his original attorney’s Rule 26(c) brief
and address them here.
(8) Tisinger first argues that the prosecution withheld exculpatory Brady
information. At Tisinger’s preliminary hearing, Officer Parrott testified that the
Auto Zone Witness identified Tisinger by name. Tisinger claims that the
prosecution’s failure to disclose the Auto Zone Witness’s name was a Brady
violation. We review Tisinger’s Brady claim for plain error because it was not raised
below.7 “A Brady violation occurs where the State fails to disclose material
evidence that is favorable to the accused, because it is either exculpatory or
impeaching, causing prejudice to the defendant.”8 There is no plain error here
5 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wis., 486 U.S. 429, 442 (1988); Anders v.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
DOMINIQUE TISINGER, § § No. 198, 2024 Defendant Below, § Appellant, § Court Below–Superior Court § of the State of Delaware v. § § Cr. ID No. 1510007181 (N) STATE OF DELAWARE, § § Appellee. §
Submitted: June 18, 2025 Decided: July 22, 2025
Before SEITZ, Chief Justice; LEGROW and GRIFFITHS, Justices.
ORDER
After consideration of the brief and motion to withdraw filed by the
appellant’s counsel under Supreme Court Rule 26(c), counsel’s supplemental Rule
26(c) brief, the appellee’s response, and the Superior Court record, it appears to the
Court that:
(1) In December 2015, a Superior Court grand jury indicted the appellant,
Dominique Tisinger, for possession of a firearm by a person prohibited, possession
of ammunition by a person prohibited, carrying a concealed deadly weapon, resisting
arrest, and attempted third-degree escape. Following a one-day bench trial, the
Superior Court found Tisinger guilty on all counts and ordered a presentence
investigation. Before sentencing, the State dismissed the attempted third-degree escape charge. On October 7, 2016, the Superior Court sentenced Tisinger to an
aggregate of ten years of unsuspended incarceration, followed by decreasing levels
of community supervision.1
(2) The evidence presented at trial established the following. The morning
of October 12, 2015, Wilmington Police Department Officer Steven Parrott was
dispatched to the intersection of Lancaster Avenue and Union Street in Wilmington,
Delaware, in response to 911 calls claiming that a man was, in Officer Parrott’s
words, “waving a gun around threatening people.”2 The State introduced a 911 call
placed by a female who excitedly told the dispatcher that a black male and a white
male had chased her from the KFC on Lancaster Avenue across the street to the Auto
Zone. The caller described the black male, who continued to pursue her, as wearing
a black hoodie and white jeans and wielding a gun with a black handle. At Auto
Zone, a witness (the “Auto Zone Witness”) told Officer Parrott that she had seen “a
man armed with a gun [that he had been] waving . . . around.”3 The Auto Zone
Witness described the man as wearing a black hoodie and white jeans and walking
1 Following Tisinger’s 2016 sentencing, trial counsel did not file a notice of appeal. Tisinger then timely moved for postconviction relief, arguing that trial counsel was ineffective for, among other things, failing to file a notice of appeal on his behalf. The Superior Court agreed on this point and vacated its sentencing order. State v. Tisinger, 2024 WL 1757229 (Del. Super. Ct. Apr. 23, 2024). On May 13, 2024, the Superior Court resentenced Tisinger to his original sentence, with slight modifications to its probationary terms. This appeal followed. 2 App. to Rule 26(c) Br. at A59. 3 Id. at A62. 2 with a white male in the area of the Save A Lot grocery store, farther east on
Lancaster Avenue.
(3) Officer Parrott responded to the Save A Lot parking lot and observed a
man wearing a black hoodie and white jeans walking with a white male on the
opposite side of the street. Officer Parrott followed the men in his marked police
vehicle and pulled up alongside them. At the same time, backup officers Detective
Robert Fox and Detective Charles Puit pulled up behind Officer Parrott in their
unmarked Crown Victoria. Officer Parrott ordered the men to stop. The man in the
white jeans and black hoodie—later identified as Tisinger—fled. All three officers
exited their vehicles. As Tisinger ran, Detective Puit observed him pull a small black
handgun from his waistband and fling it over a fence into a nearby backyard.
Detective Puit immediately secured the handgun while Detective Fox and Officer
Parrott returned to their respective vehicles and pursued Tisinger. Tisinger’s efforts
to evade the officers were unsuccessful, and he was arrested. After ascertaining
Tisinger’s identity, the police learned that he was a person prohibited from
possessing a firearm.
(4) On appeal, counsel filed a brief and a motion to withdraw under Rule
26(c). Counsel asserted that, after a complete and careful examination of the record,
he could not identify any arguably appealable issues. Counsel informed Tisinger of
the provisions of Rule 26(c), provided him with a copy of the motion to withdraw
3 and a draft of the accompanying brief, and informed him of his right to supplement
his attorney’s presentation. Tisinger raised issues for the Court’s consideration,
which counsel attached to the Rule 26(c) brief. Specifically, Tisinger argued that (i)
the prosecution withheld exculpatory information in violation of Brady v.
Maryland;4 and (ii) the Superior Court improperly admitted hearsay evidence at trial.
The State responded to the Rule 26(c) brief and moved to affirm the Superior Court’s
judgment.
(5) The Court granted counsel’s motion to withdraw and appointed new
counsel (“Substitute Counsel”). Substitute Counsel filed a brief and a motion to
withdraw under Rule 26(c), asserting that he, too, could not identify any arguably
appealable issues after a complete and careful examination of the record. The Court
then asked Substitute Counsel to specifically address Tisinger’s argument that the
Superior Court improperly admitted hearsay evidence at trial. Substitute Counsel
submitted a supplemental brief, arguing that the Superior Court did not improperly
admit hearsay evidence at trial. The State has responded to Substitute Counsel’s
briefs and has moved to affirm the Superior Court’s judgment.
(6) The standard and scope of review applicable to the consideration of a
motion to withdraw and an accompanying brief under Rule 26(c) is twofold. First,
the Court must be satisfied that defense counsel has made a conscientious
4 373 U.S. 83 (1963). 4 examination of the record and the law for claims that could be arguably raised on
appeal. 5 Second, the Court must 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.6
(7) In response to Substitute Counsel’s Rule 26(c) brief, Tisinger has not
submitted any points for this Court’s consideration. We nevertheless incorporate the
arguments that Tisinger raised in response to his original attorney’s Rule 26(c) brief
and address them here.
(8) Tisinger first argues that the prosecution withheld exculpatory Brady
information. At Tisinger’s preliminary hearing, Officer Parrott testified that the
Auto Zone Witness identified Tisinger by name. Tisinger claims that the
prosecution’s failure to disclose the Auto Zone Witness’s name was a Brady
violation. We review Tisinger’s Brady claim for plain error because it was not raised
below.7 “A Brady violation occurs where the State fails to disclose material
evidence that is favorable to the accused, because it is either exculpatory or
impeaching, causing prejudice to the defendant.”8 There is no plain error here
5 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wis., 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 6 Penson, 488 U.S. at 81–82. 7 Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented.”). 8 Wright v. State, 91 A.3d 972, 977 (Del. 2014). 5 because Tisinger does not explain either how the State’s disclosure of the Auto Zone
Witness’s name would have been favorable to his defense or how he was prejudiced
by the State’s failure to disclose her identity.9
(9) Tisinger next argues that the Superior Court improperly admitted the
Auto Zone Witness’s out-of-court statements. We review a trial court’s evidentiary
rulings for an abuse of discretion.10 In Delaware, hearsay—defined by Delaware
Rule of Evidence 801 as an out-of-court statement that a party “offers in evidence to
prove the truth of the matter asserted in the statement”11—is generally not
admissible.12 Here, defense counsel objected when the State began questioning
Officer Parrott about the Auto Zone Witness’s out-of-court statements. The trial
court then indicated that it would not consider the statements for the truth of the
matter asserted. “A judge, sitting as a trier of fact, is presumed to have made [her]
verdict only on the admissible evidence before [her] and to have disregarded that
which is inadmissible.”13 Here, Tisinger is unable to rebut the presumption that the
trial judge considered the Auto Zone Witness’s statement as anything other than
“information received” that led Officer Parrott to respond to the nearby Save A Lot
9 See id. at 988 (noting that the three components of a Brady violation are: (i) evidence exists that is favorable to the accused, because it is either exculpatory or impeaching; (ii) that evidence is suppressed by the State; and (iii) its suppression prejudices the defendant). 10 Foster v. State, 961 A.2d 526, 529 (Del. 2008). 11 D.R.E. 801(c). 12 D.R.E. 802. 13 Kurzmann v. State, 903 A.2d 702, 709 & n. 7 (Del. 2006) (citation modified). 6 parking lot.14 Accordingly, the admission of the Auto Zone Witness’s statements
was not reversible error.
(10) The Court has reviewed the record carefully and has concluded that
Tisinger’s appeal is wholly without merit and devoid of any arguably appealable
issues. We are also satisfied that Tisinger’s counsel has made a conscientious effort
to examine the record and the law and has properly determined that Tisinger could
not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED. Counsel’s motion to withdraw is moot.
BY THE COURT:
/s/ N. Christopher Griffiths Justice
14 See Sanabria v. State, 974 A.2d 107, 109 (Del. 2009) (“The State’s interest in providing the jury with a background context for the officer’s actions could have been accomplished by referring to ‘information received.’”). 7