Nickerson v. State ( 2018 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DENZEL NICKERSON, §
§ No. 330, 2017
Defendant Below, §
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 1610017497 (N)
§
Plaintiff Below, §
Appellee. §
Submitted: April 3, 2018
Decided: May 15, 2018
Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
This 15th day of May 2018, upon consideration of the appellant’s Supreme
Court Rule 26(c) brief, the State’s response, and the record below, it appears to the
Court that:
(1) In June 2017, a Superior Court jury found the appellant, Denzel
Nickerson, guilty of Drug Dealing (Tier 2), Aggravated Possession (Tier 2), and
Resisting Arrest. The Aggravated Possession conviction was merged with the Drug
Dealing conviction for purposes of sentencing. The Superior Court sentenced
Nickerson as follows: (i) for Drug Dealing, fifteen years of Level V incarceration,
suspended after five years for decreasing levels of supervision; and (ii) for Resisting
Arrest, one year of Level V incarceration, suspended for one year of Level II
probation. This is Nickerson’s direct appeal.
(2) The State’s witnesses at trial included a friend of Nickerson’s niece,
four police officers, and a forensic analyst chemist from the Department of Forensic
Sciences. The friend of Nickerson’s niece testified that, late in the afternoon on
October 27, 2016, she was in the back seat of a car her friend was driving. Nickerson
was in the front passenger seat. Nickerson’s niece stopped at an apartment complex
where Nickerson got out of the car. Shortly thereafter the police came to the car and
told the girls to get out.
(3) Detective Matthew Radcliffe testified that, around dusk on October 27,
2016, he and other members of the Delaware State Police’s Governor’s Task Force
were at an apartment complex (Patrician Terrace) near Route 7 in New Castle
County.1 Detective Radcliffe, who was wearing a vest with a State police badge,
saw Nickerson and left his car to approach him. Nickerson was advised to stop, but
he immediately ran away. The police officers ran after Nickerson, identifying
themselves as police, and telling Nickerson to stop.
(4) Detective Radcliffe saw Nickerson throw a black bag between two cars
as he was running away from the police. Officer Bryan Vettori grabbed Nickerson,
1
As discussed in more detail below, the police were at the apartment complex based on the tip of
a confidential informant.
2
who broke free. Another police officer deployed his taser, which caused Nickerson
to slow down. Nickerson continued to resist as the police officers brought him to
the ground and handcuffed him.
(5) Officer Vettori testified that he was with Detective Radcliffe and other
police officers at the Patrician Terrace Apartment Complex on October 27, 2016.
Officer Vettori saw Nickerson, left his car, approached Nickerson, identified himself
as a police officer, and told Nickerson to get on the ground. Nickerson immediately
turned and ran away. Officer Vettori chased Nickerson with Detective Radcliffe.
After Nickerson was seized and handcuffed, Officer Vettori went to the area where
he saw Nickerson throw a black bag. He found a black plastic bag under a SUV.
(6) Officer Vettori gave the black bag to Officer Thomas Rhoades. Officer
Rhoades testified that the black bag contained 325 small bags. A forensic analytical
chemist testified that testing of a random sampling of the substance in the bags
confirmed that it was heroin. The drug weight of the bags was over two grams.
Detective Trevor Riccobon testified that the packaging of the heroin was consistent
with drug dealing, not personal use.
(7) On appeal, Nickerson’s counsel (“Counsel”) filed a brief and a motion
to withdraw under Supreme Court Rule 26(c). Counsel asserts that, based upon a
complete and careful examination of the record, there are no arguably appealable
3
issues. Counsel informed Nickerson of the provisions of Rule 26(c) and provided
Nickerson with a copy of the motion to withdraw and the accompanying brief.
(8) Counsel also informed Nickerson of his right to identify any points he
wished this Court to consider on appeal. Nickerson has raised several issues for this
Court’s consideration. The State has responded to the Rule 26(c) brief and has
moved to affirm the Superior Court’s judgment.
(9) When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a
conscientious examination of the record and the law for arguable claims; and (ii)
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
(10) The issues Nickerson raises on appeal may be summarized as follows:
(i) Counsel was ineffective because she did not file certain motions he wanted her to
file; (ii) the confidential informant’s reliability was not established, the confidential
informant’s information was not corroborated, and the police lacked reasonable
articulable suspicion to detain Nickerson; (iii) the police officers failed to comply
with 11 Del. C. § 1902; and (iv) some of the police officers’ trial testimony was
inconsistent with their reports. As to Nickerson’s claim that Counsel failed to file
2
Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
4
motions he wanted her to file, this Court will not consider a claim of ineffective
assistance of counsel for the first time on direct appeal.3
(11) Nickerson next argues that the confidential informant’s reliability was
not established, the confidential informant’s information was not corroborated, and
the police lacked reasonable articulable suspicion to detain Nickerson. Nickerson
did not raise this claim in the Superior Court, so we review for plain error.4 “Under
the plain error standard of review, the error complained of must be so clearly
prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial
process.”5 The burden of persuasion is on the defendant to show prejudice. 6
(12) “An informant’s tip may provide reasonable suspicion for a stop and
seizure where the totality of the circumstances, if corroborated, indicates that the
information is reliable.”7 To make that determination, “a court must consider the
reliability of the informant, the details contained in the informant’s tip, and the
degree to which the tip is corroborated by independent police surveillance and
information.”8
(13) In this case, the confidential informant told the police someone he knew
by sight, but not name, would be delivering heroin to the mail box area of the
3
Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
4
Supr. Ct. R. 8; Wainwright t. State, 504 A.2d 1096, 1099-11 (Del. 1986).
5
Wainwright, 504 A.2d at 1100.
6
Brown v. State, 897 A.2d 748, 752 (Del. 2006).
7
Miller v. State, 25 A.3d 768, 771 (Del. 2011).
8
Brown, 897 A.2d at 751.
5
Patrician Terrace Complex on October 27, 2016. The informant was with police
officers during their surveillance of the area. The informant identified Nickerson as
the person delivering the heroin as he walked past the informant to the mail boxes.
Nickerson was the only person near the mail boxes. The informant provided specific
information (date, location, and nature of the illegal activity) that was predictive of
Nickerson’s actions and corroborated by the police when Nickerson approached the
designated area on the designated date and the informant contemporaneously
identified Nickerson as the person delivering the heroin. Under these circumstances,
there is no plain error. The informant’s information was corroborated and the police
officers had reasonable articulable suspicion to detain Nickerson.9
(14) Nickerson next contends that the police officers failed to comply with
11 Del. C. § 1902 because they did not first ask him for his name, address, business
abroad, or destination. Nickerson did not raise this claim below so we review for
plain error.10 Under § 1902, “[a] peace officer may stop any person abroad, or in a
public place, who the officer has reasonable ground to suspect is committing, has
committed or is about to commit a crime, and may demand the person’s name,
address, business abroad and destination.”
9
See, e.g., Miller, 25 A.3d at 773 (holding police had reasonable suspicion to stop and detain
person for suspected drug dealing where the informant, who was not a past-proven reliable source
of information, told the police two men of a certain appearance would drive to a specific part of a
parking lot to deliver heroin and contemporaneously confirmed with the police that the car in the
designated part of the parking lot was the correct one).
10
See supra n.4.
6
(15) As this Court has previously noted, Ҥ 1902(a) specifies that the officer
‘may’ demand of a person answers to the enumerated inquiries. The mandatory term
‘shall’ is not used.”11 The police had reasonable articulable suspicion to detain
Nickerson.12 Nickerson ignores that the police had no opportunity to ask the § 1902
questions because he immediately fled when they approached him. Under these
circumstances, there is no plain error.
(16) Finally, Nickerson argues that there were inconsistencies between the
reports and testimony of Detective Radcliffe, Officer Vettori, and Detective Hogate.
On cross-examination, Counsel explored the differences between the reports and
testimony of Detective Radcliffe and Officer Vettori. Detective Hogate did not
testify at trial. To the extent there were any inconsistencies between the testimony
of the police officers and their reports, the jury was solely responsible for judging
the credibility of the witnesses and resolving any conflicts in the evidence. 13 This
claim is without merit.
(17) This Court has reviewed the record carefully and has concluded that
Nickerson’s appeal is wholly without merit and devoid of any arguably appealable
issue. We also are satisfied that Counsel has made a conscientious effort to examine
11
Buckingham v. State, 482 A.2d 327, 333 (Del. 1984)
12
See supra ¶ 13 .
13
Pryor v. State, 453 A.2d 98, 100 (Del. 1982).
7
the record and the law and has properly determined that Nickerson could not raise a
meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Karen L. Valihura
Justice
8