Hopkins v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DEREK HOPKINS, §
§ No. 102, 2022
Defendant-Below, §
Appellant, § Court Below: Superior Court of
§ the State of Delaware
v. §
§ Cr. ID No. K2001012867
STATE OF DELAWARE, §
§
Appellee. §
Submitted: November 16, 2022
Decided: February 20, 2023
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Zachary A. George, Esquire, Hudson Jones Jaywork & Fisher, Dover, Delaware, for
Appellant, Derek Hopkins.
Brian L. Arban, Esquire, Department of Justice, Wilmington, Delaware, for
Appellee.
VAUGHN, Justice:
The Defendant-Below, Appellant, Derek Hopkins, appeals from his
convictions in Superior Court for Drug Dealing, Disregarding a Police Officer’s
Signal, Conspiracy in the Third Degree, Resisting Arrest, Illegal Possession of a
Controlled Substance (2 counts), Driving While Suspended or Revoked, Reckless
Driving, Failure to Transfer Title and Registration, Unreasonable Speed, and Failure
to Stop at a Stop Sign. He was also found “responsible” for possession of
marijuana.1 He makes three claims. First, he claims that the Superior Court abused
its discretion by refusing to accept a plea agreement offered by the State and the
defense on the morning of trial. Second, he claims that the Superior Court erred as
a matter of law by denying his motion for judgment of acquittal as to the charge of
Drug Dealing. Finally, he claims that the cumulative effect of the errors was to
prejudice his substantial rights, requiring the convictions to be vacated. We find no
merit to the defendant’s claims and affirm.
FACTS AND PROCEDURAL HISTORY
On January 21, 2020, around 10 p.m., Delaware State Police Officers Brian
Holl and Lloyd McCann were patrolling the area of Frederica, Delaware in an
unmarked SUV. They observed the defendant driving a Ford Crown Victoria on
1
“[S]imple possession of a personal use quantity of marijuana is a civil, not criminal, offense.”
State v. Murray, 158 A.3d 476, 479 (Del. Super. 2017); see 16 Del. C. § 4764(c)(1). It is our
understanding that, in cases involving marijuana possession as a civil violation, a court will find
an individual “responsible” or “not responsible.”
2
Bowers Beach Road. They ran the tag number of the defendant’s vehicle and
discovered that the vehicle’s title and registration had not been properly transferred.
Trooper Holl, the driver of the police vehicle, activated his emergency lights and
attempted to stop the defendant’s vehicle. The defendant failed to comply and
attempted to flee at a high rate of speed. He continued to travel at a high rate of
speed, running through several stop signs. Finally, he lost control of his vehicle and
crashed into a cement porch at a residence. When the officers exited their unmarked
SUV and approached the defendant’s vehicle, he attempted to pull away in reverse.
Trooper Holl then broke the driver’s door window with his baton. Officer McCann
unlocked the driver’s side door, removed the defendant from the vehicle and, despite
the defendant’s resistance, secured him with handcuffs. A female passenger was
also taken into custody.
Upon the defendant’s arrest, Officer McCann conducted a search of his
person. The officer found two bags containing a green leafy substance, suspected
and later confirmed to be marijuana, and a prescription pill bottle containing a white
rock substance, suspected and later confirmed to be crack cocaine. The cocaine
weighed in at 1.3 grams. Officer McCann also found $573 cash in the defendant’s
pocket. The defendant stated to Officer McCann that the substances belonged to
him, but signed a Notice of Forfeiture form indicating that the money was not his.
3
Heroin was also found in the vehicle. A bundle2 of heroin was discovered in
the “back passenger floorboard area.”3 Bags containing the heroin were labeled
“Armany AX.”4 When asked about this labeling, Officer McCann explained: “It’s
common for packaged heroin to have a -- it’s stamped, but it’s the brand . . . of the
heroin.”5 The following day, Trooper Holl discovered bags of heroin bearing the
label “Hell Cat”6 in the back seat of his vehicle where the defendant’s female
passenger had been the previous evening. She was charged with possession of the
“Hell Cat” heroin. No drug paraphernalia of the kind used to ingest drugs was found
in the vehicle or on the defendant’s person.
The defendant’s indictment occurred during the public health and judicial
emergencies caused by COVID-19. During that time, emergency restrictions on
judicial branch activity were in effect and jury trials were not being held. The
emergency declarations were rescinded on July 13, 2021, and the Superior Court
began to address the significant backlog of cases which were then pending. The
defendant’s trial was scheduled for Monday, October 18, 2021, and Thursday,
October 14, 2021, was established as a plea-by-appointment deadline. In other
2
Officer McCann, who testified about the discovery of this heroin in the vehicle, described a
bundle of heroin as a collection of nine to thirteen bags of heroin which are wrapped together,
usually with a rubber band.
3
App. to Opening Br. at A-280.
4
Id.
5
Id.
6
Id. at A-285.
4
words, any plea agreement between the State and the defendant was required to be
presented to the court by October 14, and a plea agreement tendered after that date
was subject to rejection by the court as untimely.
In addition to this case, the defendant had two other outstanding cases, one
which included drug charges and one which included drug and weapons charges.
They were also scheduled for trial for October 18. The State offered a plea
agreement to the defendant a week before the plea-by-appointment deadline that
would have resolved all three of the defendant’s cases with a recommended sentence
of three years at Level V. This plea offer was not accepted by the defendant. At a
pretrial conference on Friday, October 15, the Superior Court assigned this case as
the one that would go forward for trial on October 18, with the other two cases being
given new trial dates. Negotiations between defendant’s counsel and the State
continued past the October 14 deadline and into the weekend. These continued
negotiations resulted in the State making a new plea offer that would resolve this
case and the other drug case with a recommendation for a sentence involving only
probation. The new offer did not include the drugs and weapons case and left it
unresolved, to be discussed at a later time.
On the morning scheduled for trial, the State and defense counsel appeared
before the judge who was calling the criminal trial calendar and informed him of the
new plea offer made after the plea-by-appointment deadline. Defense counsel
5
indicated that he believed the defendant would be receptive to the plea offer, but that
he had been unable to speak with him that morning before appearing in court. The
court expressed frustration with the parties for this and rejected the plea offer,
explaining:
And, again, in the COVID scenario, I’ve had a hundred
something jurors get thrown in today. And the parties
need to come to grips with that and they need to
understand that and they need to take that seriously when
we’re handling these matters . . . . I’ve got to worry about
the State’s concerns, the defendant’s concerns the jurors
and the court system’s concerns as a whole, and we need
to make sure that these deadlines are worked . . . . I’m
hearing the parties got together, did more negotiating over
this weekend, decided they were going to resolve matters
that would take this case off the calendar. And that’s not
acceptable.7
Later that morning, defense counsel and the State met with the assigned trial
judge in chambers. During this office conference, the court informed the parties that
the earlier rejection of the plea offer would not be changed or reconsidered. The
trial judge explained:
And let me just make this clear. The case is regarding the
Court’s discretion to accept a late plea, and based on the
principle that the Court has to manage its docket, and the
Court cannot effectively manage its docket if counsel do
not follow the directives of the Court. The Court has made
it clear countless times to counsel that we have a plea-by-
appointment deadline that has been in effect now for a
number of months, and, particularly, in the context of the
pandemic, and requiring jurors to expose themselves to
7
App. to Opening Br. at A-182.
6
danger by coming out and serving, which they have been
doing, that we must abide by that plea-by-appointment
deadline. If the Court begins to allow that deadline just to
be disregarded, and then plea negotiations to continue after
the plea-by-appointment deadline, then the Court loses
control over its docket.8
The court further reiterated that there existed no rule of law that mandated that plea
agreements must be accepted by the court, especially in cases when they are
presented outside the established deadlines.
Trial by jury then proceeded. During the trial, Trooper Holl and Officer
McCann testified about the events surrounding the defendant’s arrest. Officer
McCann testified to a number of points relevant to the drug dealing charge:
• Drug dealers do not usually have drug paraphernalia—
the “kind to ingest drugs”9—with them.
• No such drug paraphernalia was found in the
defendant’s vehicle.
• “[D]rug dealers usually have a larger amount of
currency in smaller denominations”10 and the
defendant’s money included “one $1 bill, one $2 bill,
12 $5 bills, 23 $10 bills and 14 $20 bills.”11
• “[I]t’s common for drug dealers to separate themselves
from funds that are a profit of drug sales.”12
• “[I]n my experience, drug dealers are those that are
selling drugs for any kind of profit. They usually have
a larger quantity of narcotics, usually multiple variants
of narcotics, as well as some sort of digital scale to be
8
Id. at A-169.
9
Id. at A-281.
10
Id.
11
Id.
12
Id. at A-286.
7
used with any kind of drug paraphernalia associated
with those that are actually selling the narcotics.”13
• Officer McCann “use[d] force to pull [the defendant]
out of the car”14 and after being laid on the ground with
his hands underneath of his body, the defendant’s
hands had to be physically pulled behind his back so
that he could be handcuffed, as the defendant “would
not comply with [Officer McCann’s] verbal commands
to put his hands behind his back.”15
• 1.3 grams of cocaine is “more than a user amount”16
and, in Officer McCann’s experience, users of cocaine
usually do not possess quantities over one gram.
• Officer McCann did not know how much 1.3 grams of
cocaine would cost or how much cocaine a person
could get for $50.
• Officer McCann “think[s]”17 the amount of cocaine
typically bought by users “all depends on how much
money the person that wants to buy the drugs has.”18
• When crack cocaine is sold, the dealer will break a
piece off of the rock, and that piece “could be as small
as a piece of sand.”19
• Crack cocaine is usually consumed by smoking, and
some methods involve use of a cigarette or crack pipe.
• Officer McCann “assum[ed]”20 cocaine could be
ingested orally, but he “never had anyone say that they
ingest crack cocaine by eating it or swallowing it.”21
Officer McCann explained that he “can’t testify to [the defendant’s] intent[,]”22 and
13
Id. at A-281.
14
Id. at A-277.
15
Id.
16
Id. at A-289.
17
Id.
18
Id.
19
Id. at A-290.
20
Id. at A-286.
21
Id.
22
Id. at A-287.
8
further explained, “No, I mean I’m not in his head. But the totality of the
circumstances with drugs, money, and him fleeing from the police, you could
conclude that there was drug sales.”23
At the conclusion of the State’s case, defense counsel moved for judgment of
acquittal as to the drug dealing charge. The drug dealing count charged the
defendant with knowingly delivering or possessing with intent to deliver cocaine.
Defense counsel argued that there was a “decidedly insufficient amount of evidence
to submit [the charge] to the jury on the issue of intent to deliver.” 24 The motion
was denied.
STANDARD OF REVIEW
We review a court’s rejection of a plea agreement for abuse of discretion.25
“Abuse of discretion occurs when, among other things, the trial judge has ‘ignored
recognized rules of law or practice so as to produce injustice.’”26
This Court reviews the denial of a motion for judgment of acquittal de novo.27
Specifically, this Court examines whether any rational trier of fact, viewing the
evidence and all reasonable inferences to be drawn therefrom in the light most
23
Id. Officer McCann elaborated: “Without him stating, yes, I’m a drug dealer, yes, I do not
know.” Id.
24
Id. at A-297.
25
Berryman v. State, 897 A.2d 767, 2006 WL 954242, at *2 (Del. Apr. 11, 2006) (ORDER).
26
Longford-Myers v. State, 213 A.3d 556, 558 (Del. 2019) (quoting Edwards v. State, 925 A.2d
1281, 1284 (Del. 2007)) (citations omitted).
27
Ways v. State, 199 A.3d 101, 106 (Del. 2018).
9
favorable to the State, could find the defendant guilty beyond a reasonable doubt of
all the elements of the crime.28 “For the purposes of this inquiry, this Court does not
distinguish between direct and circumstantial evidence[,]”29 and in cases involving
purely circumstantial evidence, the State need not “disprove every possible innocent
explanation[.]”30
DISCUSSION
The defendant first claims that the Superior Court abused its discretion by
rejecting the parties’ late plea agreement.31 He contends that the State’s making of
a revised offer after the plea-by-appointment deadline had passed, an offer not
available to the defendant on or before the plea-by-appointment date, constituted
good cause to accept the plea agreement on the morning of trial.32
Superior Court Criminal Rule 11(e)(3) states: “Time of Plea Agreement
Procedure. Except for good cause shown, notification to the court of the existence
of a plea agreement shall be given at the arraignment or at such other time, prior to
trial, as may be fixed by the court.”33 “A defendant has no constitutional right to
28
Id. at 106-07; Gronenthal v. State, 779 A.2d 876, 879 (Del. 2001).
29
Ways, 199 A.3d at 107 (quoting Cline v. State, 720 A.2d 891, 892 (Del. 1998)).
30
Monroe v. State, 652 A.2d 560, 567 (Del. 1995).
31
Opening Br. at 15.
32
Id.33
Super. Ct. Crim. R. 11(e)(3) (emphasis in original).
10
have the court accept a plea agreement.[34] Trial courts have significant control over
and discretion in the management of their dockets and the scheduling of cases.”35
The morning of trial, after being informed of the updated plea offer, the
judicial officer calling the criminal trial calendar asked the State three times to
provide a reason as to why the plea offer was not discussed before the plea-by-
appointment deadline. The State explained that over the weekend defense counsel
had broached the possibility of negotiating a plea agreement for this case and the
other drug case, and leaving the third case, the drugs and weapons case, which
carried mandatory time, for another day. This was an approach that had not been
considered before. The State indicated that it was willing to consider this approach
and over the weekend made the above-described offer to resolve this case and the
other case involving drug charges.
A similar discussion occurred in an office conference with the trial judge. The
trial judge asked for a demonstration as to whether some kind of “change in
circumstances . . . prevented the State from making this offer before the plea-by-
appointment deadline[.]”36 The trial judge reiterated: “can anyone offer me any
34
Berryman v. State, 897 A.2d 767, 2006 WL 954242, at *2 (Del. Apr. 11, 2006) (ORDER)
(quoting Slade v. State, 746 A.2d 277, 2000 WL 140039, at *1 (Del. Jan. 24, 2000) (citation
omitted)) (internal quotation marks omitted).
35
Berryman, 2006 WL 954242 at *2 (quoting Washington v. State, 844 A.2d 293, 295 (Del. 2004))
(internal quotation marks omitted).
36
App. to Opening Br. at A-170.
11
reason why this couldn’t have occurred before the plea-by-appointment deadline?”37
After hearing responses from both the State and the defendant’s counsel, which were
similar to those given to the judge calling the criminal calendar, the court stated that
the previous ruling on the matter would remain intact.
It appears that the revised plea offer evolved from continued negotiations of
the parties after expiration of the plea-by-appointment deadline, and not from any
new or unexpected developments in this case. We understand the logic of the
defendant’s contention – that he was denied a probationary plea for two cases that
was not available to him until after the plea-by-appointment deadline had passed.38
Both of the Superior Court Judges involved, however, explored with counsel the
reasons why the revised plea offer was made after expiration of the plea-by-
appointment deadline, and both concluded that no good cause existed for the
untimely plea offer. After carefully considering the defendant’s argument, our
conclusion is that the Superior Court acted within its broad discretion in deciding
that good cause did not exist to justify accepting an untimely plea agreement. No
abuse of discretion occurred. Accordingly, we reject the defendant’s first claim.
The defendant’s second claim that the Superior Court’s denial of his motion
for judgment of acquittal was error.39 We disagree. The evidence, viewed in the
37
Id.38
Opening Br. at 15-16.
39
Id. at 22.
12
light most favorable to the State, is sufficient for a rational trier of fact to find the
defendant guilty beyond a reasonable doubt of drug dealing.40
The defendant claims that he could not be guilty beyond a reasonable doubt
on the drug dealing charge “because there is no evidence to support a finding that
[he] had the requisite state of mind – intent to deliver the cocaine found in his
possession.”41 He argues that Officer McCann’s testimony “contort[ed] the facts”
to support a bias against the defendant; that the cocaine did not weigh enough to be
on a tier schedule; that it was not packaged in multiple bags; that police did not
observe any drug sales; that he did not admit possessing the cocaine with the intent
to deliver it; and that his flight was not probative of an intent to sell the cocaine
because he was in possession of illegal substances.42
In Laws v. State, this Court stated the following regarding proof of “intent to
distribute:”
[T]his Court held that an “intent to distribute” may be
established through evidence of an additional element
beyond mere possession. This additional element may
include: (i) an admission by the defendant that the drugs
were not for personal use; (ii) expert testimony about the
amount or type of packaging generally used by sellers vs.
users; or, (iii) some other credible evidence.43
40
See Ways v. State, 199 A.3d 101, 106-07 (Del. 2018); Gronenthal v. State, 779 A.2d 876, 879
(Del. 2001).
41
Opening Br. at 23 (emphasis in original).
42
Id. at 26.
43
Laws v. State, 840 A.2d 641, 2003 WL 22998850, at *1 (Del. Dec. 18, 2003) (ORDER) (citing
Cline v. State, 740 A.2d 891, 892-93 (Del. 1998)) (footnote omitted).
13
Officer McCann provided testimony, without objection, as an expert. He testified
that the defendant carried $573 on his person in denominations of $20 and under and
drug dealers often have large sums of money in small denominations; the defendant
claimed the money was not his, and drug dealers often try to “separate themselves”
from drug profits;44 1.3 grams of cocaine was “more than a user amount[;]”45 the
defendant did not possess drug paraphernalia and drug dealers usually do not have
drug paraphernalia with them; the defendant possessed more than one kind of drug,
as drug dealers often do; and the defendant resisted arrest.46 This evidence, viewed
in the light most favorable to the State, was more than sufficient to justify a rational
trier of fact’s finding of guilt beyond a reasonable doubt for drug dealing.47
The defendant’s third claim is that cumulative error occurred in the court
below. In light of our decisions that no abuse of discretion occurred with respect to
the rejection of the late plea agreement and that no error occurred with respect to the
denial of the defendant’s motion for judgment of acquittal, we find that no
cumulative error occurred.
44
App. to Opening Br. at A-286.
45
Id. at A-289.
46
Trooper Holl also testified to the fact that the defendant resisted arrest.
47
See Ways v. State, 199 A.3d 101, 106-07 (Del. 2018); Gronenthal v. State, 779 A.2d 876, 879
(Del. 2001).
14
CONCLUSION
For the foregoing reasons, the judgment of the Superior Court is
AFFIRMED.
15
TRAYNOR, Justice concurring:
Although I agree with my colleagues that Hopkins’ convictions should be
affirmed, I write separately to express my misgivings over the strength of the
prosecution’s evidence on the charge of drug dealing. In the context of this case,
that charge required proof beyond a reasonable doubt that Hopkins possessed
cocaine with the intent to deliver it. If not for the deferential standard applicable to
motions for judgment of acquittal, I would have grave reservations about the
adequacy of the proof of Hopkins’ intent. In my view, Officer McCann’s testimony,
admittedly unrebutted by Hopkins, that the quantity of cocaine Hopkins possessed—
1.3 grams—was “more than a user”48 amount, but one gram would not be, is suspect.
Moreover, the logic of the officer’s testimony that Hopkins’ claim that the money
found in Hopkins’ back pocket was not his and Hopkins’ lack of cooperation are
indicative of drug dealing instead of simple possession is puzzling. And finally, the
officer’s lack of familiarity with the street value of the cocaine seized from
Hopkins49 calls into question his expertise in this area.
But we are left with the fact that Hopkins did not challenge Officer McCann’s
expertise or object to any of the opinions he offered. I therefore reluctantly conclude
48
App. to Opening Br. at A289. The basis for the officer’s opinion that a crack-cocaine user
would not typically possess more than one gram was that he had “stopped a lot of users and they
usually don’t have more than a gram on them.” Id.49
When asked if he knew the “cost[]” of 1.3 grams of cocaine, the officer candidly
acknowledged that he had “no idea.” Id.16
that, viewing the evidence in the light most favorable to the State, a rational trier of
fact could rely on Officer McCann’s expert opinion—based on his largely
unchallenged interpretation of the evidence seized incident to Hopkins’ arrest—and
find Hopkins guilty of drug dealing beyond a reasonable doubt.
17