HAROLD R. EDWARDS, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: November 28, 2016
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.
27th day of February 2017, upon consideration of the
appellant's brief under Supreme Court Rule 26(c), his
attorney's motion to withdraw, and the State's
response, it appears to the Court that:
August 2014, Harold R. Edwards was indicted for two counts of
Robbery in the First Degree and three counts of Shoplifting.
In 2015, a Superior Court jury found Edwards guilty of all
five counts. The Superior Court sentenced Edwards to a total
of fifteen years of unsuspended Level V incarceration
followed by one year of Level UJ probation. This is
Edwards' direct appeal.
appeal, Edwards' trial counsel has filed a no-merit brief
and a motion to withdraw under Supreme Court Rule 26(c).
Counsel asserts that, based upon a complete and careful
examination of the record, there are no arguably appealable
issues. Counsel provided Edwards with a copy of the motion to
withdraw and the no-merit brief in draft form and advised
Edwards that he could submit written points for the
Court's consideration. Edwards* written points are
included in the brief filed with the Court. The State has
filed a response to Edwards' points and has moved to
affirm the Superior Court's judgment.
When reviewing a motion to withdraw and brief under Rule
26(c), the Court must be satisfied that the appellant's
counsel has made a conscientious examination of the record
and the law for arguable claims. Also, the Court must conduct
its own review of the record and determine whether "the
appeal is indeed so frivolous that it may be decided without
an adversary presentation." In this case, having
conducted "a full examination of all the
proceedings" and found "no nonfrivolous issue for
appeal, " the Court is satisfied that Edwards'
counsel made a conscientious effort to examine the record and
the law and properly determined that Edwards could not raise
a meritorious claim on appeal.
indictment against Edwards arose from a series of thefts from
Wawa convenience stores and an Exxon gas/convenience store in
April and May 2014. All of the stores were located on
Philadelphia Pike in or near Wilmington. And in all of the
thefts, Edwards stole only cartons of Newport 100s
cigarettes. Identity was not an issue at trial. Edwards
admitted that he was guilty of shoplifting in all five
incidents. His defense strategy focused on challenging the
two counts of first degree robbery.
first three incidents led to the shoplifting charges. In
those incidents, as could be seen from the store surveillance
videos played at trial, Edwards simply grabbed the cigarette
cartons from the checkout counter and walked out of the store
without paying for them.
fourth and fifth incidents led to the robbery charges. In the
fourth incident, which was at a Wawa, Edwards allegedly had a
knife and threatened the store clerk. In the fifth incident,
which was at the Exxon, the store manager was injured. The
store surveillance video from the Exxon incident was
misplaced prior to trial.
trial, witnesses testified that Edwards got into a physical
altercation with the Exxon store manager as the manager was
trying to keep Edwards from leaving the store with the
cigarettes. Three witnesses also testified that, when
struggling to leave the store with the cigarettes, Edwards
took the lid off of an outdoor ashtray stand and swung it at
the manager and a store employee who were trying to restrain
him. Although the three witnesses were interviewed at the
scene by the police officer who wrote the police report, the
police report made no mention of the ashtray, and at trial,
the police officer testified that he had no memory of the
witnesses telling him that Edwards swung an ashtray lid at
the store manager and employee. The police officer testified
that he "possibly, most probably" took notes when
interviewing the witnesses, but that he had discarded the
notepad and no longer had the notes.
Edwards has raised the following claims on appeal: (1) the
Exxon robbery charge should have been tried separately from
the other charges; (2) the jury instructions did not
sufficiently inform the jury of the meaning of the term
"physical injury"; (3) the State failed to preserve
potentially exculpatory evidence; (4) the evidence at trial
was conflicting and insufficient; and (5) there were errors
in the jury selection process.
Edwards contends that the robbery charge associated with the
Exxon incident should have been severed and tried separately
from the other robbery and the shoplifting charges associated
with the Wawa incidents. Edwards did not file a motion to
sever in the Superior Court. Consequently, our review of the
claim is limited to plain error.
Under the plain error standard of review, the error
complained of must be so prejudicial to substantial rights as
to jeopardize the fairness and integrity of the trial
process. Plain error is a material defect apparent
on the face of the record, basic, serious and fundamental in
character, and that deprives an accused of a substantial
right or manifests injustice.
Superior Court Criminal Rule 8 permits two or more offenses
to be charged in the same indictment "if the offenses
charged are of the same or similar character or are based on
the same act or transaction or on two or more acts of
transactions connected together or constituting parts of a
common scheme or plan."In Edwards' case, it was
appropriate to indict all five charges together as part of a
common scheme or plan. When allegedly robbing the Exxon on
May 27, 2014, Edwards attempted to steal cartons of Newport
100s cigarettes, the same things he had stolen from the
nearby Wawas on April 20 and 21, 2014, and May 24, 2014. The
month-long lapse of time between the first incident and the
last incident, and the fact that one incident took place at
an Exxon and the other incidents occurred at Wawas, did not
require severance and a separate trial on the Exxon robbery
charge.Moreover, Edwards' trial counsel made
a tactical decision to use the Wawa shoplifting charges to
argue that Edwards had merely been shoplifting from the
Exxon, not robbing it. Under all of these circumstances,
Edwards cannot show plain error from having been tried on the
Exxon robbery charge with the other charges.
Edwards contends that the jury instructions did not
sufficiently inform the jury of the meaning of the term
"physical injury." Edwards did not raise the claim
in the Superior Court. We have reviewed the claim for plain
error and found none. The Trial Judge instructed the jury
that "[p]hysical injury means impairment of physical
condition or substantial pain, " as the term
is defined in the Delaware Criminal Code.
his third claim, Edwards contends that the State failed to
preserve the Exxon surveillance video and the police
officer's interview notes as discoverable evidence.
Edwards did not raise the issue of the police officer's
notes in the Superior Court. We have reviewed that part of
the claim for plain error.
The State is obligated to preserve evidence that is material
to a defendant's guilt or innocence. Evidence is
material if there is a reasonable probability that it would
have changed the outcome of the proceeding. When there
has been a failure to preserve evidence material to a
defendant's guilt or innocence, the Superior Court will
consider to what extent the failure to preserve is
prejudicial to the defendant. If circumstances warrant it,
the court will instruct the jury that the defendant is
entitled to an inference that the missing evidence would have
The record does not reflect that Edwards was prejudiced by
the State's failure to preserve the police officer's
notes. Assuming that the notes were discoverable evidence,
the notes were not material to Edwards' guilt or
innocence. The evidence at trial included the police report,
which made no mention of the ashtray lid, as well as the
police officer's trial testimony that he had no
recollection of the witnesses telling him about the lid.
Under these circumstances, assuming that the notes were
exculpatory, the notes would have added little to
Edwards' defense. Also, where there is no indication that
the notes were destroyed in bad faith or that there was
insufficient evidence to support the jury verdict, the record
does not reflect that Edwards was prejudiced by the absence
of a missing evidence jury instruction.
for the missing Exxon surveillance video, the State
acknowledged at trial that it failed to preserve the video.
The Trial Judge instructed the jury as follows:
In this case, the Court has determined that the State failed
to collect and preserve certain evidence that is material to
the defense; namely, the security surveillance video of the
incident alleged to have occurred at the Exxon Gas Station on
Philadelphia Pike on May 27, 2014. The failure of the State
to collect and preserve this evidence entitles Mr. Edwards to
an inference that if such evidence were available at trial it
would be exculpatory. That means that for purposes of
deciding this case you are to assume that the missing