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Nickerson v. State

Supreme Court of Delaware

May 15, 2018

DENZEL NICKERSON, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: April 3, 2018

          Court Below-Superior Court of the State of Delaware Cr. ID No. 1610017497 (N)

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


          Karen L. Valihura Justice

         This 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 Court that:

         (1) In 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 appeal.

         (2) The 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 get out.

         (3) 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.[1] 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.

         (4) 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.

         (5) 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.

         (6) 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 personal use.

         (7) On 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.

         (8) 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.

         (9) 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 ...

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