McGriff v. State ( 2023 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOSHUA MCGRIFF, §
§ No. 161, 2022
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 2004002455 (N)
STATE OF DELAWARE, §
§
Appellee. §
Submitted: December 9, 2022
Decided: January 27, 2023
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
After consideration of the appellant’s Supreme Court Rule 26(c) brief, the
State’s response, and the record on appeal, it appears to the Court that:
(1) On July 21, 2021, a Superior Court jury found the appellant, Joshua
McGriff, guilty of attempted second-degree robbery and second-degree conspiracy.
The Superior Court sentenced McGriff to three years of Level V incarceration,
suspended after one year for one year of Level III probation. This is McGriff’s direct
appeal.
(2) The evidence presented at trial established that, at approximately 11:30
p.m. on April 3, 2020, Shamir Shabazz stopped at a Bank of America drive-up ATM
located on Fox Hunt Drive in Bear. As he was entering his PIN into the ATM, two
individuals approached his car. One individual came from the rear and started
punching Shabazz in the chest. The other individual came from the front. Shabazz,
who carried bear mace for safety reasons, sprayed the bear mace, and the individuals
ran away.
(3) Shabazz called the police, who arrived a few minutes later. He told the
police that one of the individuals was a man and that the other individual could have
been a man or woman. Shabazz testified that he did not get a good look at his
assailants’ faces, but both appeared to be African-American and were wearing
hoodie sweatshirts. Shabazz did not know if any of the bear mace hit either of his
assailants.
(4) Corporal Gregory Gaffney of the Delaware State Police was called to
the scene of the robbery. As he drove eastbound on Route 40 to the Bank of America
ATM, he received a description of the suspects and was advised that the suspects
were last seen heading toward Rickey Boulevard and Route 40. Gaffney saw
someone who resembled the description of one of the suspects walking westbound
on Route 40, made a U-turn, and stopped the person, McGriff, in a Dunkin’ Donuts
parking lot.
(5) Gaffney advised McGriff that he was stopping him because he matched
the description of a suspect (dark clothing with grey hooded sweatshirt pulled over
the head) in a nearby robbery. McGriff, who was cooperative, told Gaffney that he
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was heading to his girlfriend’s house in Elkton, which was several miles away.
Gaffney testified that McGriff did not appear to be out of breath or showing effects
of pepper spray, like a runny nose or red eyes. The police did not have access to the
ATM surveillance footage at that time so they let McGriff go after taking a
photograph of him and his State-issued identification card.
(6) Detective Todd Dukes of the Delaware State Police obtained
surveillance footage of the Bank of America ATM. He reviewed footage of the
attempted robbery, which showed that the individual who approached Shabazz’s car
from the rear was wearing a dark jacket with a zipper on the left sleeve and a grey
hooded sweatshirt pulled over his head. Dukes took still clips of the assailants from
the video footage to create an “Attempt to Identify” flier. The flier was distributed
to various agencies in an attempt to identify the robbery suspects. In response to the
flier, Dukes received the photograph of McGriff taken by police the night of the
robbery.
(7) Dukes interviewed McGriff on April 22, 2020. During the interview,
Dukes showed McGriff still images taken from the surveillance footage along with
the photograph of McGriff taken the night of the robbery. As he looked at the still
images, McGriff said “showing me this is pretty much like showing me that you got
me” and “so I can’t really say that, oh it’s not me. Nah, man, it’s me, but I don’t
3
recall.”1 The jury found McGriff guilty of attempted second-degree robbery and
second-degree conspiracy.
(8) On appeal, McGriff’s appellate 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 issues. Counsel informed McGriff of the provisions of Rule 26(c) and
provided McGriff with a copy of the motion to withdraw and the accompanying
brief.
(9) Counsel also informed McGriff of his right to identify any points he
wished this Court to consider on appeal. McGriff has raised points 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.
(10) 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 McGriff’s arguments on appeal may be summarized as
1
Trial Exhibit 8, 7:20-7:24, 7:33-7:39.
2
Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
4
follows: (i) his asserted right to a speedy trial was violated; (ii) the prosecutor
violated Brady v. Maryland3 by withholding inculpatory and exculpatory evidence;
(iii) suggestive identification; (iv) there was insufficient evidence to support his
convictions; and (v) ineffective assistance of counsel.
(11) We first address McGriff’s claim of a speedy-trial violation. To
determine if there is a speedy-trial violation, we use the four-factor balancing test
set forth in Barker v. Wingo.4 The four factors are the length of the delay, the reason
for the delay, the defendant’s assertion of his right, and the prejudice to the
defendant.5 The factors are related and no one factor is conclusive.6
(12) A defendant’s right to a speedy trial “attaches as soon as the defendant
is accused of a crime through arrest or indictment whichever occurs first.”7 Unless
the length of delay is determined to be “presumptively prejudicial,” it is not
necessary to consider the additional Barker factors.8 This Court has held that if the
delay between arrest or indictment and trial approaches one year, then the Court will
generally consider the additional factors.9
3
373 U.S. 83 (1963)
4
407 U.S. 514 (1972). See also Johnson v. State, 305 A.2d 622, 623 (Del. 1973) (adopting Barker
test)).
5
Barker, 407 U.S. at 530.
6
Id. at 533.
7
Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002).
8
Id.9
Cooper v. State, 2011 WL 6039613, at *7 (Del. Dec. 5, 2011).
5
(13) More than one year passed between McGriff’s arrest on April 22, 2020
2020 and trial on July 20, 2021. McGriff fails, however, to acknowledge the reason
for this delay. For much of the time between McGriff’s arrest and trial, there was a
judicial emergency in effect because of the COVID-19 pandemic.10 With the
exception of a brief period between October 5, 2020 and November 16, 2020, jury
trials were suspended.11 The Chief Justice’s judicial emergency orders tolled the
time requirements under the Speedy Trial Guidelines.12
(14) McGriff also fails to identify any prejudice that he suffered from the
delay. He has not shown that the delay caused any impairment to his defense.
McGriff’s right to a speedy trial was not violated.
(15) McGriff did not raise his Brady claim below so we review for plain
error.13 “[T]he doctrine of plain error is limited to material defects which are
apparent on the face of the record; which are basic, serious and fundamental in their
character, and which clearly deprive an accused of a substantial right, or which
10
Administrative Order No. 22 (June 29, 2021) (extending the judicial emergency until July 13,
2021); Order (Mar. 13, 2020) (declaring judicial emergency effective March 16, 2020).
11
Administrative Order No. 19 (Apr. 30, 2021) (providing for resumption of jury trials on June 1,
2021); Administrative Order No. 13 (Nov. 16, 2020) (suspending jury trials); Administrative Order
No. 10 (Sept. 4, 2020) (providing for resumption of jury trials on October 5, 2020); Administrative
Order No. 3 (Mar. 22, 2020) (closing courthouses to public beginning on March 23, 2020).
12
Administrative Order No. 22 (June 9, 2021) (tolling the time requirements under the Speedy
Trial Guidelines until July 13, 2021); Order (Mar. 13, 2020) (tolling the time requirements under
the Speedy Trial Guidelines).
13
Supr. Ct. R. 8; Weber v. State, 38 A.3d 271, 276 (Del. Feb. 21, 2012).
6
clearly show manifest injustice.”14 Under Brady, the State must disclose material
exculpatory and impeachment evidence to the defense before trial.15 McGriff does
not identify the exculpatory or impeachment evidence that he contends the State
failed to disclose. Brady does not apply to inculpatory evidence.16 There is no plain
error.
(16) McGriff did not raise his suggestive-identification claim below so we
review for plain error.17 The record does not reflect that there was anything
impermissibly suggestive in how Dukes identified McGriff as a suspect or showed
McGriff his photograph from the night of the robbery and stills from the surveillance
footage. McGriff has not shown plain error.
(17) McGriff did not move for a judgment of acquittal in the Superior Court,
so we review his insufficient evidence claim for plain error.18 There is no plain error
here as there was sufficient evidence to support McGriff’s convictions for attempted
second-degree robbery19 and second-degree conspiracy.20 This evidence included
14
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
15
373 U.S. at 87.
16
Rose v. State, 542 A.2d 1196, 1199 (Del. 1988).
17
See supra n.13.
18
Supr. Ct. R. 8; Swan v. State, 820 A.2d 342, 358 (Del. 2003).
19
A defendant is guilty of attempted second-degree robbery when he attempts to take property of
another person and uses or threatens the immediate use of force on that person with the intent to
overcome resistance to the taking of the property. 11 Del. C. § 531; 11 Del. C. § 831(a).
20
A defendant is guilty of second-degree conspiracy when he agrees with another person to
commit a felony, the defendant or another person commits an overt act in furtherance of the
conspiracy, and the defendant acted intentionally. 11 Del. C. § 512(a)(1).
7
Shabazz’s testimony about two people who approached and assaulted him while he
was at the ATM, the ATM surveillance footage, McGriff’s presence in the area
shortly after the crime occurred while wearing clothing similar to the clothing of one
of the assailants in the surveillance footage, and McGriff’s statements to the police
when he was shown stills from the surveillance footage.
(18) Finally, McGriff asserts multiple claims of ineffective assistance of
counsel. We have consistently held that we will not consider ineffective assistance
of counsel claims for the first time on direct appeal, and decline to do so here.21
(19) This Court has reviewed the record carefully and has concluded that
McGriff’s appeal is wholly without merit and devoid of any arguably appealable
issues. We also are satisfied that Counsel has made a conscientious effort to examine
the record and the law and has properly determined that McGriff could not raise a
meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court be AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Gary F. Traynor
Justice
21
Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
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