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Terry v. State

Supreme Court of Delaware

August 4, 2017

KENNARD TERRY, Defendant Below-Appellant,
STATE OF DELAWARE, Plaintiff Below-Appellee.

          Submitted: July 6, 2017

         Court Below-Superior Court of the State of Delaware Cr. ID No. 1507014451

          Before VALIHURA, VAUGHN, and SEITZ, Justices.


         This 4th day of August 2017, upon consideration of the appellant's Supreme Court Rule 26(c) brief, the State's response, the appellant's motion for appointment of new counsel, and the record below, it appears to the Court that:

         (1) On July 27, 2016, a Superior Court jury found the appellant, Kennard Terry, guilty of Assault in the Second Degree, Possession of a Deadly Weapon During the Commission of a Felony ("PDWDCF"), and Possession of a Deadly Weapon by a Person Prohibited ("PDWBPP"). After granting the State's motion to declare Terry a habitual offender under 11 Del C § 4214(d), the Superior Court sentenced Terry to ten years of non-suspended Level V time with credit for 242 days previously served. This is Terry's direct appeal.

         (2) On appeal, Terry's counsel ("Counsel") filed a brief and a motion to withdraw pursuant to Supreme Court Rule 26(c) ("Rule 26(c)"). Counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. Counsel informed Terry of the provisions of Rule 26(c) and provided Terry with a copy of the motion to withdraw and the accompanying brief. Counsel also informed Terry of his right to identify any points he wished this Court to consider on appeal. Terry has raised several issues for this Court's consideration. The State has responded to the issues raised by Terry and moved to affirm the Superior Court's judgment.

         (3) When reviewing a motion to withdraw and an accompanying brief, this Court must: (i) be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; and (ii) 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]

         (4) At trial, Arthur Freeman, an acquaintance of Terry, testified that while he was at a neighbor's place on July 18, 2015, Terry called to tell him he should stop hanging out with a certain woman. Terry also said he was kicking the door of Freeman's apartment. After Freeman went to his apartment, Terry hit him.

         (5) Freeman returned to his neighbor's place to discuss what happened with Terry. Freeman left his neighbor's place again and ran into Terry outside the door. Freeman and Terry began tussling. According to Freeman, Terry stabbed him in the back of his neck with a box cutter knife. Freeman was taken to the hospital. An emergency room nurse testified Freeman came to the hospital with four stab wounds to his neck and shoulder. Emergency room records indicated Freeman was intoxicated when he arrived at the hospital and suffered from Post-Traumatic Stress Disorder ("PTSD").

         (6) Detective Brian Shahan testified that he obtained an arrest warrant for Terry. As Detective Shahan approached Terry's residence in an unmarked car, he saw Terry's car, a green Jeep. Detective Shahan saw the Jeep drive away at a high rate of speed. Detective Shahan did not see who was driving the Jeep, but believed that Terry saw his unmarked car and fled in the Jeep. Terry was subsequently arrested. The police did not find a box cutter knife or a similar instrument in their search of Terry's residence and Jeep. Freeman testified that Terry came to his apartment after the incident and said he should have killed Freeman.

         (7) The testimony and reports of Officer Daniel McCardle and Detective Shahan reflected that Freeman gave differing accounts of the dispute with Terry to police. Freeman told Officer McCardle that a debt triggered the dispute. Freeman told Detective Shahan that his refusal to drink and party with Terry led to the dispute.

         (8) The parties stipulated that Terry was a person prohibited. The jury found Terry guilty of Assault in the Second Degree, PDWDCF, and PDWBPP. Terry filed a pro se appeal and Counsel filed an appeal. The appeals were consolidated.

         (9) On appeal, Terry primarily attacks Freeman's credibility and mental health. He argues that: (i) Freeman testified he had no mental health issues, but the record reflects he suffered from PTSD; (ii) his testimony regarding the reason for the fight was inconsistent with his statements to the police; (iii) he testified Terry had a weapon, but no weapon was recovered; and (iv) the emergency room records indicate Freeman was intoxicated and suffered from PTSD. All of these matters were raised at trial. The jury is the sole trier of fact responsible for determining witness credibility, resolving any conflicts in the testimony, and drawing all reasonable inferences from the proven facts.[2]

         (10) To the extent Terry claims there was insufficient evidence to support his convictions, this claim is without merit. Generally, we review a sufficiency of evidence claim de novo to determine whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found the defendant guilty beyond a reasonable doubt.[3] Terry did not move for a directed verdict or judgment of acquittal so we review this claim for plain error.[4] "[P]lain error is limited to material defects which are apparent on the face of the record; which are basic, ...

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