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Edwards v. State

Supreme Court of Delaware

February 27, 2017

HAROLD R. EDWARDS, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: November 28, 2016

         Court Below-Superior Court of the State of Delaware Cr. ID No. 1405023636

          Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.

          ORDER

         This 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:

         (1) In 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.[1] This is Edwards' direct appeal.

         (2) On 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.

         (3) 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.[2] 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."[3] In this case, having conducted "a full examination of all the proceedings" and found "no nonfrivolous issue for appeal, "[4] 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.

         (4) The 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.

         (5) The 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.

         (6) The 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.

         (7) At 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.[5]

         (8) 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.

         (9) 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.[6]

         (10) 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.[7] 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.[8]

         (11) 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."[9]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.[10]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.[11] Under all of these circumstances, Edwards cannot show plain error from having been tried on the Exxon robbery charge with the other charges.[12]

         (12) 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, "[13] as the term is defined in the Delaware Criminal Code.[14]

         (13) In 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.

         (14) The State is obligated to preserve evidence that is material to a defendant's guilt or innocence.[15] Evidence is material if there is a reasonable probability that it would have changed the outcome of the proceeding.[16] 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.[17] If circumstances warrant it, the court will instruct the jury that the defendant is entitled to an inference that the missing evidence would have been exculpatory.[18]

         (15) 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.[19]

         (16) As 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 evidence, ...

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