Opinion
No. 200, 1999.
Submitted: November 15, 1999.
Decided: January 21, 2000.
Appeal from Superior Court of the State of Delaware, in and for New Castle County, Cr.A. Nos. IN96-02-0924 and -0925.
AFFIRMED.
Before WALSH, HOLLAND, and HARTNETT, Justices.
ORDER
This 21st day of January 2000, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) In February 1999, a Superior Court jury found the defendant-appellant, Dwayne E. Cropper, guilty of attempted first degree murder and possession of a deadly weapon during the commission of a felony. The Superior Court sentenced Cropper as an habitual offender to a total of 35 years at Level V incarceration followed by 10 years of decreasing levels of supervision. This is Cropper's direct appeal.
(2) Cropper's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Cropper's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Cropper's attorney informed him of the provisions of Rule 26(c) and provided Cropper with a copy of the motion to withdraw and the accompanying brief. Cropper also was informed of his right to supplement his attorney's presentation. Cropper wrote two letters raising several issues for this Court's consideration. The State has responded to the position taken by Cropper's counsel as well as the points raised by Cropper and has moved to affirm the Superior Court's decision.
(3) 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) this Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; and (b) this 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).
(4) Although not enumerated as such, Cropper raises five cognizable issues for this Court to consider on appeal. First, Cropper contends that the jury should not have convicted him of attempted first degree murder because he did not intend to kill the victim, his wife Erika. Second, Cropper asserts that the Superior Court erred in admitting evidence of a prior threat that Cropper made against Erika. Third, Cropper argues that the State should have called Maurice Reeves to testify and that the tape of Reeves' 911 phone call should have been presented to the jury. Fourth, Cropper contends that his trial counsel was ineffective in several respects. Fifth, Cropper asserts that the trial court erred at sentencing in considering certain prejudicial evidence.
(5) At trial Cropper's then-wife Erika testified that on January 21, 1996 she drove from Wilmington to Georgetown to pick up Cropper from a work release center. The two argued in the car. Among other things, Cropper accused Erika of being unfaithful. Erika told Cropper that their relationship was over. After returning to their apartment in Wilmington, Erika began to make breakfast for Cropper. It is undisputed that Cropper approached Erika from behind and stabbed her repeatedly with a knife in the neck and upper body rendering her permanently disabled.
(6) Erika testified that while she was lying on the ground in a pool of blood, Cropper stood over her and said, "I want you dead." Cropper left Erika lying in the kitchen. He changed his clothes and made a phone call to his sister, telling her that he had "hurt Erika bad this time." He also took keys and money from Erika's pocket. He then told Erika that he loved her and that he would call an ambulance. Cropper left the apartment locking the door behind him. He returned later after a brief visit with his sister. Erika testified that Cropper kicked her in the foot and face several times and threatened to hit her with a baseball bat before leaving the apartment a second time. Cropper visited another sister before fleeing Delaware in Erika's car. A few hours after the stabbing, Erika's brother and a friend, Maurice Reeves, arrived at the Croppers' apartment and let themselves in with a key. Because the phone had been disconnected, Reeves ran across the street and called 911. Erika's car was recovered in South Carolina. Cropper was arrested later in Florida and returned to Delaware for trial.
(7) At trial, defense counsel conceded that Cropper had stabbed Erika but contended that he was guilty only of first degree assault not attempted murder. Defense counsel also admitted guilt on the weapon charge. Accordingly, the only issue for the jury to decide was whether Cropper was guilty of attempted first degree murder or the lesser offense of first degree assault. The jury convicted Cropper of attempted first degree murder and the weapon charge.
(8) On appeal Cropper first contends that the evidence was insufficient to prove that he intended to kill Erika. To sustain Cropper's first degree attempted murder conviction under 11 Del. C. § 531 and 636(a)(1), the State was required, among other things, to prove Cropper's intent. To show intent, the State had to prove that it was Cropper's conscious object to kill his wife. The State was not required to prove premeditation or malice.
Duonnolo v. State, Del. Supr., 397 A.2d 126, 129 (1978).
See Del. Crim. Code with Commentary at 194 (1973).
(9) Based upon both the direct and circumstantial evidence in the record, as well as all reasonable inferences to be drawn therefrom in the light most favorable to the State, a reasonable finder of fact could conclude that Cropper was guilty beyond a reasonable doubt of intentional first degree attempted murder. The testimony at trial reflected that Erika was stabbed approximately 20 times in the neck and upper body, leaving her permanently disabled. After the attack, Cropper stood over Erika's injured body and told her that he wanted her dead. After fleeing the first time, Cropper returned to the scene and kicked Erika several times and threatened her with a baseball bat before fleeing again. Cropper remained on the lam for many months. There also was testimony concerning an incident that occurred two and a half years prior to the stabbing during which Cropper had told Erika, "If I can't have you, I'll kill you." Given the totality of the evidence, the record reflects that the jury could have reasonably inferred Cropper's intent to kill his wife.
See Winborn v. State, Del. Supr., 455 A.2d 357, 359 (1982) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
(10) Next Cropper argues that the Superior Court erred in admitting into evidence the prior threat that he had made against Erika. The record reflects that the State made a motion in limine proffering evidence of seven prior incidents of domestic violence by Cropper against Erika. The Superior Court considered the proffered evidence in accordance with the analysis set forth in Getz v. State and concluded that only one proffered incident was admissible under Getz. That incident, which occurred on August 2, 1993, ended with Cropper telling Erika that he would kill her if he could not have her. The Superior Court found: that the 1993 incident was material to Cropper's intent, which was an issue in dispute, and also was a purpose sanctioned by DRE 404(b); that the 1993 incident was not too remote in time; that Erika's testimony regarding the incident was clear and conclusive evidence; and that the probative value of the evidence outweighed its prejudicial effect. Furthermore, the Superior Court gave two cautionary instructions to the jury regarding its consideration of this prior bad act evidence. In light of this record, there was no abuse of discretion in the trial court's ruling.
Getz v. State, Del. Supr., 538 A.2d 726, 734 (1988). The Court in Getz held that evidence of a defendant's other crimes are admissible as part of the State's case-in-chief under the following conditions:
(1) the evidence is material to an issue or ultimate fact in dispute;
(2) the evidence is introduced for a purpose sanctioned by DRE 404(b);
(3) the other crimes are proved by plain, clear and conclusive evidence;
(4) the other crimes are not too remote in time from the charged offense;
(5) the probative value of the evidence is balanced against the unfairly prejudicial effect under DRE 403; and
(6) the jury is instructed on the limited purpose of the admission of the evidence under DRE 105.
(11) Cropper next summarily asserts that the prosecution should have called Maurice Reeves as a witness and that the tape of Reeves' 911 call should have been presented to the jury. Cropper does not explain the basis for this claim of alleged error, nor does he cite any case law to support it. To the extent Cropper is alleging that the State could not sustain its burden of proof beyond a reasonable doubt without Reeves' testimony and the 911 tape, this Court already has concluded that the evidence presented by the State at trial was sufficient to support Cropper's convictions. To the extent Cropper is alleging that defense counsel was ineffective for not raising an issue concerning the State's failure to present this evidence, this Court will not review such a claim of defense counsel error for the first time on direct appeal.
Duross v. State, Del. Supr., 494 A.2d 1265, 1267 (1985).
(12) Cropper next contends that his trial counsel was ineffective in several respects. Cropper alleges that his counsel erred by: failing to contact unspecified defense witnesses; failing to have Cropper testify at trial; failing to produce phone records; and failing present evidence that the victim had abused Cropper. Claims of attorney error, however, will not be considered for the first time on direct appeal.
Desmond v. State, Del. Supr., 654 A.2d 821, 829 (1994).
(13) Finally, Cropper contends that the Superior Court erred at his sentencing hearing by considering certain prejudicial evidence that the State had not been permitted to present at trial. The record reflects that during trial the State had proffered evidence concerning the testimony of several inmates, which the Superior Court had ruled was too prejudicial to be admitted at trial. At Cropper's sentencing, the State made reference to this proffered testimony, although the inmates did not actually testify.
(14) This Court reviews sentencing of a defendant under an abuse of discretion standard. Appellate review of a sentence generally ends once it is determined that the sentence is within prescribed statutory limits. If the sentence is within statutory limits, then this Court will not find error unless it is clear that the sentencing court relied upon "demonstrably false information or information lacking a minimal indicium of reliability." There is nothing in the record to reflect that the Superior Court actually relied upon the inmates' proffered testimony in sentencing Cropper. Nonetheless, even assuming it did, there was no error in Cropper's sentence. Although the Superior Court had found the inmates' proffered testimony to be too prejudicial to be admitted at trial, it did not find the evidence to be inaccurate or unreliable. Consequently, the Superior Court's suppression of the inmates' testimony at trial did not preclude the court from considering it at sentencing. Accordingly, we find no merit to this issue.
Mayes v. State, Del. Supr., 604 A.2d 839, 842 (1992). In this case, Cropper could have received a life sentence. Instead, the Superior Court sentenced him to 35 years at Level V incarceration followed by 10 years of decreasing supervision. This sentence clearly was within statutory limits.
Id. at 843.
(15) This Court has reviewed the record carefully and has concluded that Cropper's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Cropper's counsel has made a conscientious effort to examine the record and has properly determined that Cropper 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.
BY THE COURT:
RANDY J. HOLLAND Justice