Walker v. State ( 2017 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL WALKER, §
§ No. 324, 2016
Defendant Below- §
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 1511009579
Plaintiff Below- §
Appellee. §
Submitted: October 20, 2016
Decided: January 3, 2017
Before VALIHURA, VAUGHN, and SEITZ, Justices.
ORDER
This 3rd day of January 2017, upon consideration of the appellant's
Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, and the
State's response thereto, it appears to the Court that:
(1) In June 2016, the defendant-appellant, Michael J. Walker, was
convicted following a Superior Court bench trial of Possession of a Firearm
by a Person Prohibited (“PFPP”). The Superior Court sentenced Walker to
fifteen years at Level V incarceration, to be suspended after serving a
minimum mandatory term of five years in prison for decreasing levels of
supervision. This is Walker’s direct appeal.
(2) Walker’s counsel on appeal has filed a brief and a motion to
withdraw under Rule 26(c). Walker’s counsel asserts that, based upon a
complete and careful examination of the record, there are no arguably
appealable issues. By letter, Walker’s attorney informed him of the
provisions of Rule 26(c) and provided Walker with a copy of the motion to
withdraw and the accompanying brief. Walker also was informed of his
right to supplement his attorney's presentation.
(3) In response to his counsel’s Rule 26(c) brief, Walker submitted
two points for the Court’s consideration. First, he contends that the gun
should not have been admitted into evidence because the State failed to
establish a continuing chain of custody. Second, he asserts that there was
missing or tainted evidence because the officer who recovered the gun
testified at trial that the gun she retrieved contained nine bullets (one in the
chamber and eight in the magazine), however, the evidence envelope at trial
contained the gun, magazine, and only eight bullets. Walker contends that
the missing bullet tainted the gun evidence, rendering all of the evidence in
the envelope inadmissible.
(4) 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: (a) this Court must be satisfied that defense counsel
2
has made a conscientious examination of the record and the law for arguable
claims; and (b) this 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.1
(5) The State’s evidence at trial fairly established the following
version of events. On September 9, 2015, at approximately 1:45 A.M.,
Dover police were investigating a single vehicle collision near the Dover
Country Club Apartments. The police officer who arrived on the scene
observed Walker pacing beside the crashed vehicle. As the officer
approached him, Walker fled. During the ensuing foot chase, Walker ran to
the nearby apartment complex. The officer lost sight of Walker several
times before eventually apprehending him in the stairwell of Building B.
(6) Several hours later, an employee of the apartment complex
found a handgun behind a trash dumpster at Building F. The dumpster was
located along the path of the earlier foot chase. Using a metal trash picker,
the employee retrieved the weapon without touching it, put it in a bucket,
and returned to the management office. The manager called the Dover
police. Officer Nicolosi came to retrieve the weapon. She disarmed it, took
it back to the police station, and logged it into the police evidence locker.
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).
3
Another officer later retrieved the gun from the evidence locker and
conducted forensic testing, which revealed a latent fingerprint on the
weapon. It was later established that the fingerprint came from Walker. At
trial, Officer Nicolosi identified the weapon as the one she retrieved from the
apartment. The gun, its magazine, and bullets were admitted into evidence
without objection.
(7) Walker’s first argument on appeal is that the State failed to
establish a sufficient chain of custody for the gun. Walker failed to raise any
objection to the admission of the gun at trial. Thus, we review his claim on
appeal for plain error.2 Plain error exists when the error complained of is
apparent on the face of the record and is so prejudicial to a defendant’s
substantial rights as to jeopardize the integrity and fairness of the trial.3
(8) Delaware Rule of Evidence 901(a) states that, “The requirement
of authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.”4 The State may authenticate
evidence either by having a witness identify the item as that which was
actually involved in the crime or by establishing a chain of custody for the
2
Guy v. State, 913 A.2d 558, 564 (Del. 2006).
3
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
4
D.R.E. 901(a) (2016).
4
item to ensure the identity and integrity of the evidence by tracing its
whereabouts.5 The authentication requirement is “lenient”6 and only
requires the State to eliminate the possibility of misidentification or
adulteration as a matter of reasonable probability.7
(9) In this case, the State presented evidence that the gun was found
by an employee of the apartment complex where Walker was arrested. The
employee stated that he did not touch the gun with his hands and that he
turned the gun over to the manager, who then called police. Officer Nicolosi
testified that she retrieved the gun from the manager. She made the weapon
safe by emptying the round in the chamber and removing the magazine. She
placed these items in a bag. Upon returning to the police station, she placed
the bag in an evidence locker. Another officer testified to retrieving the bag
from the evidence locker and conducting tests on the evidence. Both
officers identified the gun at trial as the one that had been placed into and
retrieved from the police evidence locker. Under these circumstances, we
find no plain error in the admission of the gun into evidence at trial.
(10) Walker’s second claim on appeal relates to Officer Nicolosi’s
testimony at trial that the gun she retrieved contained nine bullets (one in the
5
Guinn v. State, 841 A.2d 1239, 1241 (Del. 2004).
6
Whitfield v. State, 524 A.2d 13, 16 (Del. 1987).
7
Tricoche v. State, 525 A.2d 151, 153 (Del. 1987).
5
chamber and eight in the magazine), which were logged into the police
evidence locker along with the gun. Only eight bullets were admitted with
the gun into evidence at trial, however. Walker contends that the missing
bullet rendered both the gun and the fingerprint retrieved from the gun
inadmissible.
(11) We disagree. Any discrepancies between the description of the
evidence logged into the police locker and the evidence admitted at trial
goes to the weight to be afforded to the evidence and not to its
admissibility.8 In this case, there was sufficient evidence for the judge,
sitting as the trier of fact, to conclude beyond a reasonable doubt that the gun
found within hours after Walker’s flight from the police, containing his
fingerprint, had been recently possessed by Walker and that Walker, because
of his prior record, was a person prohibited from possessing a gun.
(12) This Court has reviewed the record carefully and has concluded
that Walker’s appeal is wholly without merit and devoid of any arguably
appealable issue. We also are satisfied that Walker’s counsel has made a
conscientious effort to examine the record and the law and has properly
determined that Walker could not raise a meritorious claim in this appeal.
8
Demby v. State, 695 A.2d 1127, 1132 (Del. 1997).
6
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/ James T. Vaughn, Jr.
Justice
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