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Thompson v. State

Supreme Court of Delaware

July 24, 2018

JAMAR K. THOMPSON, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: May 9, 2018

          Court Below: Superior Court of the State of Delaware ID. No. 1209018130

         Upon appeal from the Superior Court. AFFIRMED.

          Tasha M. Stevens, Esquire, of the Office of Fuqua, Willard, Stevens & Schab, P.A., Georgetown, Delaware for Appellant.

          Abby Adams, Esquire, of the Department of Justice, Georgetown, Delaware for Appellee.

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          VAUGHN, JUSTICE:

         In this appeal, Appellant Jamar K. Thompson challenges a Superior Court finding that he violated his probation. He asserts three claims. He first contends that his right to due process under Amendment XIV of the United States Constitution was violated because he was provided with an untimely and incomplete disclosure of the evidence against him, he was unavailable to testify, and a witness he intended to call was not permitted to testify. He next contends that the Superior Court violated his rights under Amendments IV and XIV of the United States Constitution and Article I § 6 of the Delaware Constitution by refusing to consider his argument, made at the hearing, that the evidence against him was the product of an unlawful search and seizure and should be suppressed. Finally, he contends that the evidence against him was insufficient to support a finding that he violated his probation. After considering Thompson's claims, we have concluded that the judgment of the Superior Court should be affirmed.


         On July 4, 2017, at about 12:47 p.m., Officer DeMalto of the Governor's Task Force was driving an unmarked sport utility vehicle on Route 13 southbound in the area of Seaford. He noticed a gold Acura RL hastily weaving through traffic ahead of him. Traffic was heavy and the car was not signaling lane changes. The officer followed the Acura as it turned onto Brickyard Road. The driver of the Acura then began following close behind a black sedan. Suddenly, the officer observed what he termed an "explosion" in the front of the Acura. Smoke and fluid spewed from under the hood. Believing the Acura had collided with the black sedan, the officer followed it as it pulled into the parking lot of the Service Tire Truck Center at Route 13 and Brickyard Road.

         The officer pulled his vehicle behind the Acura, intending to check and make sure no one in the Acura was injured and to investigate why the car was following so closely behind the black sedan. He exited his vehicle and approached the Acura. The driver, Appellant Thompson, was the only one in the vehicle. The vehicle appeared to be "unstable, unsafe, and inoperable. There was a large amount of green fluid on the windshield and leaking from the hood area. There was a noticeable amount of smoke and steam coming from the hood area . . . ."[1]

         Thompson explained to the officer that something in the car had malfunctioned, causing it to overheat and explode. For the safety of Thompson and the officer, Thompson was asked to get out of the vehicle.

         As Thompson spoke to the officer outside the vehicle, he appeared to be nervous. He was looking off into the distance and avoided eye contact. He walked around the vehicle and tried to open the hood, stating that he needed to get to a nearby residence.

         The officer asked Thompson for his driver's license and returned to his patrol vehicle to check Thompson's history. He learned that Thompson was on probation, and that he had an extensive criminal history with several drug and weapon offenses. Due to Thompson's nervous demeanor and his criminal history, the officer called a Town of Blades police officer who he knew was nearby to assist him. The officer also contacted a probation officer who was assigned to the Governor's Task Force to check on Thompson's probation compliance.

         Office DeMalto returned to Thompson and asked him questions about his probation. Thompson told the officer he was compliant with his probation but he could not remember on which day in the prior week he had reported. The officer told Thompson that an officer with a K-9 would be arriving. Thompson then made an odd statement that the K-9 would probably alert to the green fluid coming out of his vehicle.

         Officer DeMalto asked Thompson if he would consent to a search and Thompson declined. When the Blades officer arrived, Officer DeMalto asked him to use his narcotic-certified dog to conduct a free-air sniff of the vehicle. The K-9 alerted at the driver's door. The officer asked Thompson if there was "anything illegal inside the vehicle that would cause such an alert such as firearms, narcotics, or drug paraphernalia. . . . Thompson advised that it was his girlfriend's car and that there wasn't anything illegal in the car that belonged to him."[2] The officer asked Thompson to stand with the Blades officer, and he searched the Acura. As the search began, Thompson told the officer that there was some marijuana in the center arm rest. The officer located marijuana in the center arm rest, and also found a Smith & Wesson 9 millimeter handgun concealed under the front passenger seat, within arm's reach of Thompson when he was in the driver's seat. The gun was loaded with a magazine containing fourteen 9 millimeter rounds. The officer asked Thompson if his fingerprints would be on the gun, and Thompson said that they would. The officer then searched Thompson. The officer found $755 in United States Currency. The substance in the center arm rest field-tested positive for marijuana. The entire encounter, up to the point where the officer located the firearm, took about 20 minutes.

         Officer DeMalto took Thompson back to the state police barracks for processing. Thompson told the officer the cash did not belong to him. Fingerprints were lifted from the gun, but the test results were inconclusive. The gun was analyzed for DNA, but the result was not known at the time of the violation of probation ("VOP") hearing. Thompson declined to be interviewed.

         The Acura was registered to Sheneese Showell. Shortly after Thompson's arrest she called Officer DeMalto and informed him that the firearm found in the car belonged to her and she would like to have it back. The officer told her it had been admitted into evidence and would not be immediately available to her. The gun was, in fact, registered to Ms. Showell.

         Thompson was charged with Possession of a Firearm by a Person Prohibited, Possession of Ammunition by a Person Prohibited, Carrying a Concealed Deadly Weapon, Possession of Marijuana, and Following Too Closely. On July 13, 2017 the State dismissed the charges, subject to further investigation and a potential indictment at a later date. Because of the new charges, however, Thompson was also added to a VOP calendar scheduled for July 14. At that hearing, the State indicated that it would pursue the VOP despite dismissing the charges, and the VOP hearing was rescheduled for September 8, 2017.

         On August 4, 2017 Thompson's counsel filed a Request for Discovery under Superior Court Criminal Rules 16 and 32.1. In early September, not having received a response, defense counsel emailed a deputy attorney general about discovery. The deputy responded that he had not received the request and forwarded a copy of the police report to defense counsel the day before the scheduled hearing.

         The hearing proceeded on September 8. At the beginning of the hearing, Thompson's counsel objected to having received the police report only the day before the hearing. She also raised an objection that the disclosure of evidence was inadequate. She argued that she believed there was relevant evidence that was not included in the police report. The Superior Court judge dealt with her objections by limiting the State's presentation of evidence to only what was contained in the police report that Thompson's counsel had received. Thompson's counsel also indicated that she had a witness present, Ms. Showell, but that the State had recommended that she obtain counsel to protect her against any criminal charges that may be brought against her in connection with her ownership of the firearm.[3] The judge indicated that he would deal with that issue as it came up. The State then proceeded with testimony from Officer DeMalto and Thompson's probation officer.

         When the State rested, Thompson's counsel raised the issue of calling Ms. Showell as a witness. Counsel indicated to the Court that she had planned on calling Ms. Showell, who was present, as a witness, but that prior to the hearing the State advised Ms. Showell that she would need an attorney because of possible charges which might arise from her testimony. The judge then asked Thompson's counsel to proffer what her testimony would be. Thompson's counsel then proffered, in summary, that she would testify that she owned the gun, that the marijuana in the car was hers, and that the car was hers. She further proffered that Thompson had asked to borrow her car that morning to pick up his daughter. The judge then stated that he would accept that proffer as evidence. Thompson's counsel then indicated that she would have called Thompson as a witness, but that he chose to exercise his Fifth Amendment right not to testify.

         During closing arguments, Thompson's counsel attempted to argue that the new charges (except the traffic charge of following too closely) were the product of an unlawful search and seizure and that the evidence supporting the new charges should be suppressed. The judge responded that he would not consider such an argument on the grounds that suppression does not apply in VOP hearings.

         At the conclusion of the hearing, the judge found that Thompson had violated his probation based on the evidence of the new charges.

         On November 13, 2017, Thompson was indicted on the new charges. The current status of the new criminal case, however, is not included in the record of this proceeding.


         Our standard of review for constitutional challenges is de novo.[4] To the extent we review the sufficiency of the evidence, it is for an abuse of discretion.[5] Our review of a Superior Court judge's revocation ...

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