Submitted: December 13, 2018
Below: Superior Court of the State of Delaware Cr. ID No.
VALIHURA, SEITZ, and TRAYNOR, Justices.
F. Traynor, Justice
28th day of February 2019, upon consideration of the no-merit
brief under Supreme Court Rule 26(c), appellate counsel's
motion to withdraw, and the State's response, it appears
to the Court that:
June 2017, the appellant was convicted of Possession of a
Firearm by a Person Prohibited, Possession of Ammunition by a
Person Prohibited, Possession of a Firearm during the
Commission of a Felony, Disregarding a Police Officer's
Signal, and Disregarding a Red Light. At sentencing, Jackson
was declared a habitual offender and was sentenced to a total
of forty-three years of Level V incarceration suspended after
forty years for probation. This is Jackson's direct
appeal, Jackson's appellate counsel has filed a no-merit
brief and motion to withdraw under Rule 26(c). Appellate
counsel asserts that, based upon a complete and careful
examination of the record, there are no arguably appealable
issues. Jackson has supplemented the Rule 26(c) brief with
claims for our consideration. The State has responded to the
position taken by Jackson's appellate counsel and the
claims raised by Jackson and has moved to affirm the Superior
When considering a Rule 26(c) brief and motion to withdraw,
our standard and scope of review is twofold. First, we must be
satisfied that the appellant's counsel made a
conscientious examination of the record and the law for
claims that could arguably support the appeal. Second, we must
conduct our own review of the record to determine whether the
appeal is so totally devoid of at least arguably appealable
issues that it can be decided without an adversary
evidence at trial fairly established that, on August 17,
2016, between 6:00 and 7:00 p.m., Wilmington Police Detective
Matthew Rosaio and his partner, Probation Officer Joseph
Scioli, were driving west on East 26th Street
through the intersection at Northeast Boulevard when a green
Mercury Marquis traveling south entered the same intersection
against the red light. Midway through the intersection the
driver of the Mercury Marquis slammed on his brakes, which
forced the other drivers proceeding through the intersection
on the green light-including Detective Rosaio-to slam on
their brakes. After about ten seconds, the driver of the
Mercury Marquis put his car in reverse and returned to where
he should have stopped to properly await a green light.
Detective Rosaio activated the emergency equipment on his
patrol vehicle to stop the Mercury Marquis for the red light
violation. The Mercury slowed down and pulled over to the
curb as if to stop but then sped off when Detective Rosaio
exited the patrol car. Due to the vehicle and pedestrian
traffic in the area, Detective Rosaio did not attempt to
pursue the fleeing Mercury and instead relayed information
about the Mercury and its direction of travel to other
officers in the immediate area.
Detective Rosaio and Officer Scioli lost sight of the Mercury
for about fifteen seconds. When they saw it again, it was
stopped at the intersection of West 26thStreet and
North Washington Street. The front passenger door of the
Mercury was open, the front passenger seat was unoccupied,
the keys were in the ignition, and the car was running. When
Detective Rosaio approached the driver side of the Mercury,
he saw that the driver's seat was unoccupied. Detective
Rosaio also saw a black semiautomatic firearm with an
extended magazine on the front driver side floorboard.
Wearing latex gloves, Detective Rosaio removed the magazine
and one live round of ammunition from the firearm and placed
it on the passenger seat of the Mercury. When moving the
firearm, Detective Rosaio also found a black cell phone.
Rather than take photographs of the Mercury Marquis and its
contents at the intersection of 26th Street and
North Washington Street, Officer Scioli drove the vehicle
back to the station where he and Detective Rosaio took
photographs of the vehicle and collected the evidence.
Eventually, the firearm and cell phone were swabbed for DNA.
Those swabs, and a buccal swab from Jackson, were sent to
BODE Laboratory ("BODE") for DNA comparison. When
filling out the laboratory transmittal form, Detective Rosaio
checked a box on the form giving BODE permission to consume
the entire DNA sample, if necessary.
entire DNA sample was consumed during the testing. The
analyst's test results revealed that Jackson's DNA
was on the firearm and the magazine.
Jackson's preliminary hearing, Detective Rosaio testified
in error that he photographed the Mercury Marquis at
"the scene, [at] 26th and
Washington."Detective Rosaio corrected his misstatement
later when he testified at a suppression hearing that the
photos "were actually taken at the police
station." At trial, Detective Rosaio testified again
that he photographed the Mercury Marquis and its contents ...