Submitted: April 3, 2018
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
L. Valihura Justice
15th day of May 2018, upon consideration of the
appellant's Supreme Court Rule 26(c) brief, the
State's response, and the record below, it appears to the
June 2017, a Superior Court jury found the appellant, Denzel
Nickerson, guilty of Drug Dealing (Tier 2), Aggravated
Possession (Tier 2), and Resisting Arrest. The Aggravated
Possession conviction was merged with the Drug Dealing
conviction for purposes of sentencing. The Superior Court
sentenced Nickerson as follows: (i) for Drug Dealing, fifteen
years of Level V incarceration, suspended after five years
for decreasing levels of supervision; and (ii) for Resisting
Arrest, one year of Level V incarceration, suspended for one
year of Level II probation. This is Nickerson's direct
State's witnesses at trial included a friend of
Nickerson's niece, four police officers, and a forensic
analyst chemist from the Department of Forensic Sciences. The
friend of Nickerson's niece testified that, late in the
afternoon on October 27, 2016, she was in the back seat of a
car her friend was driving. Nickerson was in the front
passenger seat. Nickerson's niece stopped at an apartment
complex where Nickerson got out of the car. Shortly
thereafter the police came to the car and told the girls to
Detective Matthew Radcliffe testified that, around dusk on
October 27, 2016, he and other members of the Delaware State
Police's Governor's Task Force were at an apartment
complex (Patrician Terrace) near Route 7 in New Castle
County. Detective Radcliffe, who was wearing a
vest with a State police badge, saw Nickerson and left his
car to approach him. Nickerson was advised to stop, but he
immediately ran away. The police officers ran after
Nickerson, identifying themselves as police, and telling
Nickerson to stop.
Detective Radcliffe saw Nickerson throw a black bag between
two cars as he was running away from the police. Officer
Bryan Vettori grabbed Nickerson, who broke free. Another
police officer deployed his taser, which caused Nickerson to
slow down. Nickerson continued to resist as the police
officers brought him to the ground and handcuffed him.
Officer Vettori testified that he was with Detective
Radcliffe and other police officers at the Patrician Terrace
Apartment Complex on October 27, 2016. Officer Vettori saw
Nickerson, left his car, approached Nickerson, identified
himself as a police officer, and told Nickerson to get on the
ground. Nickerson immediately turned and ran away. Officer
Vettori chased Nickerson with Detective Radcliffe. After
Nickerson was seized and handcuffed, Officer Vettori went to
the area where he saw Nickerson throw a black bag. He found a
black plastic bag under a SUV.
Officer Vettori gave the black bag to Officer Thomas Rhoades.
Officer Rhoades testified that the black bag contained 325
small bags. A forensic analytical chemist testified that
testing of a random sampling of the substance in the bags
confirmed that it was heroin. The drug weight of the bags was
over two grams. Detective Trevor Riccobon testified that the
packaging of the heroin was consistent with drug dealing, not
appeal, Nickerson's counsel ("Counsel") filed a
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 informed Nickerson of the
provisions of Rule 26(c) and provided Nickerson with a copy
of the motion to withdraw and the accompanying brief.
Counsel also informed Nickerson of his right to identify any
points he wished this Court to consider on appeal. Nickerson
has raised several issues for this Court's consideration.
The State has responded to the Rule 26(c) brief and has moved
to affirm the Superior Court's judgment.
When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), 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 ...