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Caulk v. State

Supreme Court of Delaware

March 19, 2019

ROBERT P. CAULK, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: January 23, 2019

          Court Below-Superior Court of the State of Delaware Cr. ID Nos. N1705002474 & N1705004722

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

          ORDER

          KAREN L. VALIHURA, JUSTICE

         After consideration of the appellant's Supreme Court Rule 26(c) brief, the State's response, and the record on appeal, it appears to the Court that:

         (1) On January 8, 2018, after a two-day bench trial, the Superior Court found the appellant, Robert P. Caulk, guilty of three counts of Robbery in the First Degree and one count of Possession of a Deadly Weapon During the Commission of a Felony ("PDWDCF") and not guilty of two counts of PDWDCF. After granting the State's motion to declare Caulk a habitual offender under 11 Del. C. § 4214(d), the Superior Court sentenced Caulk as follows: (i) for two counts of Robbery in the First Degree, as a habitual offender, twenty-five years of Level V incarceration for each count, with credit for time served; (ii) for one count of Robbery in the First Degree, fifteen years of Level V incarceration, suspended after three years for decreasing levels of supervision; and (iii) for PDWDCF, two years of Level V incarceration. This is Caulk's direct appeal.

         (2) The charges arose from robberies of the same 7-Eleven in Wilmington on April 19, 2017, May 4, 2017, and May 8, 2017. At trial, the 7-Eleven clerk testified, through an interpreter, about all three robberies. The clerk testified that, on April 19, 2017, a man tried to buy something with his card, but the card did not work. The man told the clerk to go ahead and ring up another customer. After the clerk finished dealing with the other customer and the customer left, the man pulled a knife out and told the clerk to open the register and give him the money. The clerk opened one of the registers and gave the money in it as well as lottery tickets or cigarettes to the man. The robbery was reported to the police.

         (3) The clerk testified that, on May 4, 2017, the same man came up to him from behind, pressed a knife against his back, and demanded money from the register. The man took money from the register and also took cigarettes. Based on a review of the video footage of both robberies and other investigation, the police determined that Caulk was the primary suspect. The clerk identified the photograph of Caulk as the person who robbed the store on April 19th and May 4th. A warrant was issued for Caulk's arrest.

         (4) On May 8, 2017, Caulk returned to the 7-Eleven. The clerk immediately recognized him as the person who had previously robbed the store and testified that he showed him something black that the clerk thought might be the knife. He took money from the register as well as cigarettes and lottery tickets. The clerk identified Caulk again in a photograph array. A customer who was at the store during the robbery identified Caulk as the robber at trial.

         (5) Caulk was arrested not long after the third robbery. According to one of the testifying police officers, Caulk was arrested in a stained sweatshirt and pants that matched the clothes of the man in the video of the last 7-Eleven robbery. At the time of his arrest, Caulk was carrying money, cigarettes, a screwdriver, and a cell phone.

         (6) The police obtained search warrants to search the phone and Caulk's house. An analysis of cell tower data showed that the cell phone taken from Caulk was in use near the 7-Eleven around the time of the May 4th and May 8th robberies. During the search of the house, the police found a blue hooded sweatshirt that appeared similar to the clothing of the man in the video of the April 19th and May 4throbberies. A set of latent fingerprints collected from an interior door at the 7-Eleven did not match Caulk's fingerprints. The State played surveillance video of all three robberies at trial.

         (7) At the conclusion of the State's case, Caulk moved for a judgment of acquittal as to the May 8th robbery, arguing that the clerk did not expressly testify that Caulk had a weapon. The Superior Court denied the motion. Caulk also asked for the Superior Court to consider Robbery in the Second Degree as a lesser included offense for the May 8th robbery, which the Superior Court agreed to do. The Superior Court dismissed Aggravated Menacing charges and related weapon charges and stated that it would consider Aggravated Menacing as a lesser included offense of the May 4th robbery.

         (8) Caulk exercised his right not to testify and did not submit any evidence. The Superior Court found Caulk guilty of three counts of Robbery in the First Degree and one count of PDWDCF as to the April 19th robbery. The Superior Court found Caulk not guilty of PDWDCF as to the May 4th and May 8th robberies. This appeal followed.

         (9) On appeal, Caulk's appellate 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 Caulk of the provisions of Rule 26(c) ...


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