Opinion
No. 289, 1998.
Decided: December 29, 1998.
Superior Sussex CrA IN95-11-0431.
Affirmed.
Unpublished opinion below.
TARRON T. ADAMS, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 289, 1998. In the Supreme Court of the State of Delaware. Submitted: December 10, 1998. Decided: December 29, 1998.
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
ORDER
This 29th day of December 1998, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c) ("Rule 26(c)"), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) In April 1998, following a two-day jury trial in the Superior Court, the defendant-appellant, Tarron T. Adams ("Adams"), was convicted of first degree vehicular homicide, driving a motor vehicle while license suspended, and driving under the influence. Adams was sentenced to a total of two years and four months at Level V incarceration, with credit for time served, followed by four years and four months at decreasing levels of supervision. This is Adams' direct appeal.
(2) The evidence at trial established that on March 16, 1997, at approximately 3:23 p.m., Adams, who was then 24 years-old, along with 15 year-old Charles Garland ("Garland"), and 23 year-old John Parks ("Parks"), were traveling west in a car on County Road 207. Adams and Garland are cousins. The car, a red Geo Storm, was owned by Adams' girlfriend. All three occupants of the car — Adams, Garland, and Parks — had been drinking alcohol that day, and the car was traveling at a high rate of speed. At approximately one mile east of Lincoln, the driver lost control of the car. The car left the roadway, drove onto the shoulder and into the grass, flipping over several times. The accident resulted in serious injuries to Adams and Parks. Garland suffered less serious injuries. Eight days after the accident, Parks died of his injuries.
(3) As the alleged driver of the car, Adams was charged with first degree vehicular homicide, driving a motor vehicle while license suspended, and driving under the influence. At trial, Adams maintained that he was not the driver of the car, but that Parks was. At the conclusion of the trial, the jury convicted Adams of all three charges.
(4) Adams' appellate counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Rule 26(c) is twofold: (a) the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal; and (b) the Court must conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation. Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
(5) Adams' appellate counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Adams' counsel informed him of the provisions of Rule 26(c) and provided Adams with a copy of the motion to withdraw, the accompanying brief, and the complete trial transcript. Adams also was informed of his right to supplement his attorney's presentation. Adams responded with documents that raise several issues for this Court's consideration. The State has responded to the position taken by Adams' counsel as well as the points raised by Adams and has moved to affirm the Superior Court's decision.
(6) Adams raises three issues for this Court's consideration: (i) insufficient evidence to prove that Adams was driving the motor vehicle at the time of the accident; (ii) ineffective assistance of counsel; and (iii) newly-discovered evidence. Adams has failed to raise a claim upon which relief can be granted.
(7) Adams' first arguably appealable issue is that there was insufficient evidence to prove that he was driving the car at the time of the accident. It appears from the record that the State presented the testimony of two witnesses who came upon the scene of the accident shortly after it happened. Both witnesses testified that Garland, at the scene of the accident, told them that his "cousin," meaning Adams, was driving the car at the time of the collision. The State also presented the testimony of two Delaware State troopers, who testified that Garland, on the day of the accident and again two days later, identified Adams as the driver of the car at the time of the accident. At trial, Garland testified that it was Parks, and not Adams, who was driving the car at the time of the collision.
(8) When a defendant claims that the evidence is insufficient to support a guilty verdict, the burden is on the defendant to show that after reviewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt. Davis v. State, Del. Supr., 453 A.2d 802 (1982). The record in this case reflects that there was sufficient evidence presented by the State to support the jury's verdict. It was entirely within the purview of the jury to consider the conflicting testimony concerning who was the driver of the car, weigh the evidence, and conclude that Adams was the driver. See Pryor v. State, Del. Supr., 453 A.2d 98, 100 (1982). Adams' claim of insufficient evidence is without merit.
(9) Adams' second arguably appealable issue is that he received ineffective assistance of counsel at trial. Adams' claim appears to center around his counsel's alleged failure to subpoena certain witnesses for trial. Delaware law is well-settled that, on direct appeal, this Court will not consider claims of ineffective assistance of counsel which were not raised in the court below. Supr. Ct. R. 8; Duross v. State, Del. Supr., 494 A.2d 1265 (1985). Accordingly, we decline to review this claim.
(10) Adams' third arguably appealable issue is that there are witnesses available who would testify that he was not the driver of the car at the time of the accident. Defense evidence, however, cannot be presented for the first time on appeal. Supr. Cr. R. 8. If the evidence is newly-discovered, Adams may have a remedy under Superior Court Criminal Rule 33. Draper v. State, Del. Supr., 146 A.2d 796, 800 (1958).
(11) This Court has reviewed the record carefully and has concluded that Adams' appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Adams' appellate counsel has made a conscientious effort to examine the record and has properly determined that Adams could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to withdraw is moot.