Submitted October 3, 2014
Case Closed December 2, 2014.
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 New Castle County. Cr. ID 1306020689.
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
Henry duPont Ridgely, Justice
This 12th day of November 2014, 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) The defendant-appellant, Arthur Carter, was convicted by a Superior Court jury in January 2014 of Aggravated Menacing, Possession of a Firearm During the Commission of a Felony (PFDCF), and Possession of a Firearm by a Person Prohibited (PFPP). The Superior Court declared Carter to be a habitual offender and sentenced him to a total period of thirty-five years at Level V incarceration to be suspended after serving thirty years for a period of probation. This is Carter's direct appeal.
(2) Carter's counsel on appeal has filed a brief and a motion to withdraw under Rule 26(c). Carter's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Carter's attorney informed him of the provisions of Rule 26(c) and provided Carter with a copy of the motion to withdraw and the accompanying brief. Carter also was informed of his right to supplement his attorney's presentation.
(3) In response to his counsel's Rule 26(c) brief, Carter raised three issues for the Court's consideration. First, he contends that the State violated his Sixth Amendment right to confront a witness against him when it failed to call the victim to testify. Carter next asserts that the State's evidence was insufficient to establish his guilt on the charge of PFDCF because there was no gun or shell casing or other physical evidence admitted at trial. Finally, Carter contends that the admission into evidence of his taped interview with the police violated his due process rights because his statement was not knowing and voluntary because he was intoxicated. After the State filed its response to counsel's Rule 26(c) brief, Carter filed an additional argument contending that the State violated Brady v. Maryland when it failed to disclose that the victim had written two letters recanting her prior statement to the police. The State has moved to affirm the Superior Court's judgment.
(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 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.
(5) The State's evidence at trial fairly established the following version of events. On June 22, 2013, Carter got into an argument with his pregnant girlfriend, Morlicea Capers, at her uncle's home in Edgemoor Gardens. Capers' uncle forcibly pushed Carter out of the residence. Once Carter was outside, he fired a gun into the air and then sped off in a silver car. Both Capers and a child inside the home telephoned 911 during the incident. Tapes of both phone calls were admitted into evidence. The State also admitted a redacted videotaped statement that Carter gave to police on June 27, 2013, the day he was arrested. In the tape, Carter initially says that someone fired a gun but that he did not know who. Later in the videotape, Carter admits that he fired a .45 caliber gun in the air before fleeing the scene.
(6) Two neighborhood residents testified at trial that they heard gunshots on the evening of June 22, 2013. One of those witnesses testified that she heard an argument just prior to the sound of a gunshot. Neither neighbor could identify the shooter. One of the police officers who responded to the scene testified that he arrived within minutes after receiving a dispatch reporting a domestic dispute involving a gun. The officer interviewed Capers who stated that she had had a physical altercation with Carter, after which Carter left the residence and then returned with a handgun and fired a shot in the air outside the residence before he fled the scene in a silver car. Capers did not testify at trial. Carter also did not testify at trial. At the close of the State's evidence, counsel ...