JAMAR K. THOMPSON, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: May 9, 2018
Below: Superior Court of the State of Delaware ID. No.
appeal from the Superior Court. AFFIRMED.
M. Stevens, Esquire, of the Office of Fuqua, Willard, Stevens
& Schab, P.A., Georgetown, Delaware for Appellant.
Adams, Esquire, of the Department of Justice, Georgetown,
Delaware for Appellee.
VALIHURA, VAUGHN, and SEITZ, Justices.
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
AND PROCEDURAL HISTORY
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.
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 . . . ."
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.
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
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
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.
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." 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.
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
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.
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.
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.
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. 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.
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.
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.
conclusion of the hearing, the judge found that Thompson had
violated his probation based on the evidence of the new
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.
standard of review for constitutional challenges is de
novo. To the extent we review the sufficiency of
the evidence, it is for an abuse of discretion. Our review of a
Superior Court judge's revocation ...