Submitted: July 6, 2017
Below-Superior Court of the State of Delaware Cr. ID No.
VALIHURA, VAUGHN, and SEITZ, Justices.
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:
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.
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.
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.
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.
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").
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.
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.
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.
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.
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. Terry did not move for a directed verdict
or judgment of acquittal so we review this claim for plain
error. "[P]lain error is limited to material
defects which are apparent on the face of the record; which
are basic, ...