Terry v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
KENNARD TERRY, §
§ Consol. Nos. 521, 2016 and
Defendant Below- § 543, 2016
Appellant, §
§ Court Below--Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 1507014451
§
Plaintiff Below- §
Appellee. §
§
Submitted: July 6, 2017
Decided: August 4, 2017
Before VALII-IURA, VAUGHN, and SEITZ, Justices.
O R D E R
This 41h day of August 2017, upon consideration of the appellant’s
Supreme Court Rule 26(c) brief, the State’s response, the appellant’s motion
for appointment of new counsel, and the record below, it appears to the Court
that:
(1) On July 27, 2016, a Superior Court jury found the appellant,
Kennard Terry, guilty of Assault in the Second Degree, Possession of a
Deadly Weapon During the Commission of a Felony (“PDWDCF”), and
Possession of a Deadly Weapon by a Person Prohibited (“PDWBPP”). After
granting the State’s motion to declare Terry a habitual offender under 1 l Del.
C. § 4214(d), the Superior Court sentenced Terry to ten years of non-
suspended Level V time with credit for 242 days previously served. This is
Terry’s direct appeal.
(2) On appeal, Terry’s counsel (“Counsel”) filed a brief and a motion
to withdraw pursuant to Supreme Court Rule 26(c) (“Rule 26(c)”). Counsel
asserts that, based upon a complete and careful examination of the record,
there are no arguably appealable issues. Counsel informed Terry of the
provisions of Rule 26(c) and provided Terry with a copy of the motion to
withdraw and the accompanying brief. Counsel also informed Terry of his
right to identify any points he wished this Court to consider on appeal. Terry
has raised several issues for this Court’s consideration The State has
responded to the issues raised by Terry and moved to affirm the Superior
Court’s judgment.
(3) When reviewing a motion to withdraw and an accompanying
brief, 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.l
(4) At trial, Arthur Freeman, an acquaintance of Terry, testified that
while he was at a neighbor’s place on July 18, 2015, Terry called to tell him
he should stop hanging out with a certain woman. Terry also said he was
kicking the door of Freeman’s apartment After Freeman went to his
apartment, Terry hit him.
(5) Freeman returned to his neighbor’s place to discuss what
happened with Terry. Freeman left his neighbor’s place again and ran into
Terry outside the door. Freeman and Teny began tussling. According to
Freeman, Terry stabbed him in the back of his neck with a box cutter knife.
Freeman Was taken to the hospital. An emergency room nurse testified
Freeman came to the hospital With four stab wounds to his neck and shoulder.
Emergency room records indicated Freeman was intoxicated when he arrived
at the hospital and suffered from Post-Traumatic Stress Disorder (“PTSD”).
(6) Detective Brian Shahan testified that he obtained an arrest
warrant for Terry. As Detective Shahan approached Terry’s residence in an
unmarked car, he saw Terry’s car, a green Jeep. Detective Shahan saw the
' Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del.
1996).
Jeep drive away at a high rate of speed. Detective Shahan did not see who
was driving the Jeep, but believed that Terry saw his unmarked car and fled
in the Jeep. Terry was subsequently arrested The police did not find a box
cutter knife or a similar instrument in their search of Terry’s residence and
Jeep. Freeman testified that Terry came to his apartment after the incident
and said he should have killed Freeman.
(7) The testimony and reports of Officer Daniel McCardle and
Detective Shahan reflected that Freeman gave differing accounts of the
dispute with Terry to police. Freeman told Officer McCardle that a debt
triggered the dispute. Freeman told Detective Shahan that his refusal to drink
and party with Terry led to the dispute.
(8) The parties stipulated that Terry was a person prohibited The
jury found Terry guilty of Assault in the Second Degree, PDWDCF, and
PDWBPP. Terry filed a pro se appeal and Counsel filed an appeal. The
appeals were consolidated
(9) On appeal, Terry primarily attacks Freeman’s credibility and
mental health. I-Ie argues that: (i) Freeman testified he had no mental health
issues, but the record reflects he suffered from PTSD; (ii) his testimony
regarding the reason for the fight was inconsistent with his statements to the
police; (iii) he testified Terry had a weapon, but no weapon was recovered;
and (iv) the emergency room records indicate Freeman was intoxicated and
suffered from PTSD. All of these matters were raised at trial. Thejury is the
sole trier of fact responsible for determining witness credibility, resolving any
conflicts in the testimony, and drawing all reasonable inferences from the
proven facts.2
(10) To the extent Terry claims there was insufficient evidence to
support his convictions, this claim is Without merit. Generally, we review a
sufficiency of evidence claim de novo to determine whether any rational trier
of fact, viewing the evidence in the light most favorable to the State, could
have found the defendant guilty beyond a reasonable doubt.3 Terry did not
move for a directed verdict orjudgment of acquittal so we review this claim
4 “[P]lain error is limited to material defects which are apparent
for plain error.
on the face of the record; Which are basic, serious and hindamental in their
character, and which clearly deprive an accused of a substantial right, or which
clearly show manifest injustice.”5
(l l) A conviction for Assault in the Second Degree requires proof that
the defendant recklessly or intentionally caused physical injury to another
2 Morgan v. sraze, 922 A.zd 395, 400 (Del. 2007).
3 Farmer v. State, 844 A.2d 297, 300 (Del. 1990).
4 Supr. Ct. R. 8; chm v. Smfe, 820 A.2d 342, 358 (Del. 2003).
5 Wainwright v. Stare, 504 A.2d 1096, 1100 (Del. 1986).
person by means of a deadly weapon.6 A conviction for PDWDCF requires
proof that a defendant possessed a deadly weapon during the commission of
a felony.7 A conviction for PDWBPP requires proof that the defendant is a
prohibited person and that he knowingly “possesses, purchases, owns or
controls a deadly weapon or ammunition or a firearrn.”8 A deadly weapon
includes a “knife of any sort (other than an ordinary pocketknife carried in a
closed position).”9
(12) There is no plain error here. Freeman testified that Terry stabbed
him in the neck with a box cutter knife, the emergency room nurse testified
that Freeman was stabbed in the neck and shoulder, medical records and
photographs of the stab wounds were admitted into evidence, and the parties
stipulated that Freeman was a person prohibited from possessing a deadly
weapon. As the sole judge of the witness’ credibility,10 the jury could find
Freeman’s testimony that Terry stabbed him credible. Viewing the evidence
in the light most favorable to the State, a rational jury could have found Terry
guilty beyond a reasonable doubt of Assault in the Second Degree, PDWDCF,
and PDWBPP.
6 11 Del. C. § 612(3)(2).
7 11 Del. C.1447(a).
8 11 Del. C. § 144s(b).
9 1 1 Del. C. § 222(5).
w See signch n.2.
(13) Finally, Terry argues this case belonged in Mental Health Court,
There is no indication that Terry’s case was eligible for the Mental Health
Court or that there was likely to be a collaborative decision to place the case
there.Il This claim is without merit.
(14) This Court has reviewed the record carefully and has concluded
that Terry’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 the record and the law and has properly determined that
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appointment of new counsel due to Counsel’s motion to withdraw is denied.
NOW, TI-[EREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED. The motion to withdraw is moot. The motion
to appoint new counsel is DENIED.
BYTHECOURF
WCA/g/
Justice
ll See http://courts.delaware.gov/superior/mentalhealth! (providing “[n]ot eligible for the
program are defendants charged with sex offenses, homicide, domestic violence, weapons
offenses, or offenses involving serious bodily injury” and refen'ing to program
“collaborative partnership” of, among others, the Superior Court, Department of Justice,
and Office of the Public Defender).