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Givens v. State

Supreme Court of Delaware

June 6, 2017

MARQUESE GIVENS, Defendant Below-Appellant,
v.
STATE OF DELAWARE, Plaintiff Below-Appellee.

          Submitted: March 16, 2017

         Court Below-Superior Court of the State of Delaware Cr. ID 1508006714 (N)

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          ORDER

         This 6th day of June 2017, 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) In January 2016, a Superior Court jury convicted the appellant, Marquese Givens, of Possession of a Firearm by a Person Prohibited and Possession of Ammunition by a Person Prohibited. After denying his post-trial motion for a judgment of acquittal, the Superior Court sentenced Givens to a total period of twenty-three years at Level V incarceration to be suspended after serving five years in prison for decreasing levels of supervision. This is Givens' direct appeal.

         (2) Givens' counsel on appeal has filed a brief and a motion to withdraw under Rule 26(c). Givens' counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Givens' attorney informed him of the provisions of Rule 26(c) and provided Givens with a copy of the motion to withdraw and the accompanying brief. Givens also was informed of his right to supplement his attorney's presentation.

         (3) Givens has raised four claims for the Court to consider. First, he contends that the trial court erred in allowing the State, during its rebuttal presentation, to introduce the out-of-court statement of a previously-excused defense witness. Second, he contends that the trial court erred in denying his post-trial motion for a judgment of acquittal. Third, he contends that the prosecutor engaged in multiple instances of misconduct. Finally, he argues that the trial judge engaged in misconduct.

         (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.[1]

         (5) The State's case-in-chief at trial was presented primarily through the testimony of the arresting police officer, Corporal Danny Silva. Silva testified that, on the evening of August 8, 2015, Wilmington police were dispatched to Third and North Franklin Streets in the City of Wilmington. Silva and his partner arrived in their patrol vehicle. Other officers were already on the scene tending to a man with a head wound. Silva observed a distraught woman walking up and down the sidewalk, yelling at people on the opposite side of the street. As he approached the woman, she immediately pointed to a parked car across the street and told Silva that there was a gun in the car.[2] Silva shined his flashlight into the car and saw part of a gun sticking out from under the driver's seat.

         (6) Silva checked the vehicle's registration and learned that it belonged to Givens, whose registered address was not in the neighborhood. After asking a large group of people nearby if anybody owned the car and receiving no answer, Silva called for a tow truck. While he and his partner waited for the tow truck, Silva testified that he was approached by a man, Givens, who asked what they were doing with his car. Silva testified that he asked Givens if he knew what was in the car and Givens immediately responded, "there's a gun." Silva testified that, after making that statement, he patted Givens down and read him his Miranda rights. Silva testified that Givens told him that the gun belonged to his girlfriend. He further testified that Givens told him that he had driven to the area with his girlfriend and, upon their arrival, Givens was involved in an altercation and his girlfriend had removed the gun from the car and was waving it in the air. When Silva asked Givens for his girlfriend's name, Givens refused to answer and stopped cooperating.

         (7) Silva's partner also testified at trial. He confirmed Silva's testimony that Givens told Silva that he had driven to that location, that he knew there was a gun in the car, and that the gun belonged to his girlfriend. Silva's partner also confirmed that Silva patted Givens down and read him his Miranda rights. After the car was towed to a police lot, Silva obtained a search warrant. Other officers searched Givens' car and retrieved the gun. Testing on the gun revealed that it was fully loaded. There were no fingerprints recovered from the gun.

         (8) The defense called three witnesses, who were two of Givens' friends and his girlfriend, Starasia Gregory.[3] All three testified that they and Givens had carpooled together that morning in the female friend's car to a local park. After spending several hours there, the two couples then went together in the afternoon to a friend's child's birthday party. While at the party, Givens received a call about a family matter that required him to pick up his young nephew at the police station. The female friend drove Givens and dropped him off at the station. She went back to the party and picked up the other two and returned to the male friend's house at Third and Franklin Streets. Givens walked from the police station and met them there.

         (9) While they were inside playing cards, they heard a commotion in the street and went outside to see what was happening. When they saw officers looking at Givens' car, the four of them approached the vehicle. Once Givens' identified the vehicle as his, the officers immediately put Givens in handcuffs and did not read him Miranda rights. All three denied hearing Givens tell Silva that he had been driving the car and that he knew there was a gun it.

         (10) Gregory further testified that Givens had not driven at all that day. She stated that after returning from the birthday party to Third and Franklin Streets, while Givens was dealing with his family situation, she drove the car back to her apartment to get money for dinner. While she was in the apartment, she retrieved the gun from its lockbox with the intention of taking it to a friend later who was going to show her how to clean it and fix the ...


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