Submitted: March 15, 2010.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below-Superior Court of the State of Delaware in and for Kent County, Cr. ID No. 0808006229.
Before HOLLAND, BERGER and JACOBS, Justices.
CAROLYN BERGER, Justice.
This 19th day of April 2010, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) The defendant-appellant, Julius Cannon, was found guilty by a Superior Court jury of Possession of a Firearm By a Person Prohibited and Conspiracy in the Second Degree. On the weapon conviction, Cannon was sentenced to 6 years of incarceration at Level V, to be followed by 6 months Level IV Halfway House. On the conspiracy conviction, he was sentenced to 2 years of incarceration at Level V, to be suspended for 1 year at Level III probation. This is Cannon's direct appeal.
(2) Cannon's trial counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). 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) the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal; and (b) the Court must conduct its own review of the record to determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.
(3) Cannon's counsel asserts that, based upon a careful and complete examination of the record and the law, there are no arguably appealable issues. By letter, Cannon's counsel informed Cannon of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw, the accompanying brief and the complete trial transcript. Cannon also was informed of his right to supplement his attorney's presentation. Cannon has responded with a brief that raises five issues for this Court's consideration. The State has responded to the position taken by Cannon's counsel as well as the issues raised by Cannon and has moved to affirm the Superior Court's judgment.
(4) Cannon raises five issues for this Court's consideration. He claims that a) there was insufficient evidence presented at trial to support the conviction of second degree conspiracy; b) the jury's questions to the judge during deliberations were not answered adequately; c) there was insufficient evidence presented at trial to support the weapon conviction; d) the charges, which stemmed from separate incidents, should have been severed; and e) the State's witnesses presented inconsistent testimony.
(5) The following evidence was presented at trial. In the early morning of July 17, 2008, there was an armed home invasion at the residence of James and Corrine Jones in Harrington, Delaware. The Joneses and Timothy Clokey, Corrine's son, testified that five to six African American men entered the residence and stole, among other things, a number of firearms and electronic items such as an X-Box and DVD's. A neighbor, Daniel Lilly, testified that he saw a dark-colored 4-door sedan and several unknown individuals on the Jones property at the time of the incident. James Jones testified in detail regarding the stolen items, including the serial numbers of the weapons. Corrine Jones testified that she was sexually assaulted with the barrel of a firearm held by one of the men.
(6) Delaware State Police Detective Matthew Fuski was the investigating officer called to the scene of the home invasion. He testified that his investigation of the incident was at a standstill when, on August 4, 2008, he was notified by the Milford, Delaware police that, while investigating a trespassing complaint at Unit 214, Colony West Apartments, they had identified a firearm taken from Unit 221 that had been stolen in the home invasion. After receiving permission to search Unit 214, additional items stolen in the home invasion were found. Following the execution of a search warrant, still more items were found in Unit 220, where Cannon lived with co-defendants Theodore Singletary, Tykisha Hannah and Zipporah Long.
(7) All of the items recovered from Colony West Apartments were taken to Troop 3, where the Joneses identified them as their stolen property. According to Detective Fuski, 80-85% of the items stolen from the Joneses were found in Units 214 and 220. In a taped statement to Detective Fuski, Cannon admitted to having regular access to the apartments, to being in possession of a Playstation (later determined to have been stolen in the home invasion), and to owning a dark-colored Cadillac sedan (where a DVD player stolen in the home invasion was found). Several witnesses testified that Cannon lived in Unit 220 with his girlfriend and had access to the other units. Cannon's co-defendant, Keith Jones, testified that Cannon ...