Submitted: June 10, 2015
Court Below – Superior Court of the State of Delaware, in and for New Castle County Criminal ID No. 1308022148
Upon appeal from the Superior Court. REVERSED AND REMANDED.
Bernard J. O'Donnell, Esquire, Office of the Public Defender, Wilmington, Delaware, for Appellant Mark Smolka.
Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, for Appellee.
Before HOLLAND, VAUGHN, and SEITZ, Justices.
In August 2013, officers from New Castle County Police Operation Safe Streets searched a home at 5 Worthy Down Avenue in Bear, Delaware. During the search, the officers found Mark Smolka inside the house and a Taurus .38 special revolver in a closet. Smolka, who is a person prohibited from possessing a firearm, admitted at the scene that he had moved the gun to a closet and placed a lock on it. Smolka was arrested and charged with, among other offenses, possession of a firearm by a person prohibited.
Before trial, Smolka filed a motion to suppress evidence he claimed was illegally obtained during the search as well as his statements to the officers. The Superior Court denied Smolka's motion because Smolka failed to appear at the suppression hearing. The State then introduced at trial the evidence subject to the suppression motion. The jury found Smolka guilty of the firearm possession offense, and the trial judge sentenced him to three years imprisonment at Level 5 suspended for six months at Level 4 home confinement and one year at Level 3 probation supervision.
Smolka claims on appeal that the trial court erred when it found that he waived his right to suppress the evidence in question because he failed to appear at the suppression hearing. We hold that a defendant's voluntary failure to appear at a suppression hearing waives his right to be present at the hearing, but does not waive the defendant's constitutional right to challenge evidence as unlawfully obtained. We therefore remand the case to Superior Court to conduct a suppression hearing.
Smolka also claims on appeal that the Superior Court erred by refusing to instruct the jury on a "lesser of evils" defense. Because jurisdiction is retained, we need not rule on Smolka's second ground for error at this time.
On August 26, 2013, County officers from Operation Safe Streets were investigating a probationer, Pablo Jackson, for thefts, including theft of a firearm. The officers responded to Jackson's last known address in the Four Seasons development near Bear, Delaware. They were advised that Jackson never lived there. The officers consulted Jackson's address history and identified ...