Summary
finding that a defendant's firing of a gun in a residential neighborhood was sufficient evidence to prove First Degree Reckless Endangering
Summary of this case from Britt v. StateOpinion
No. 52, 2003.
Submitted: November 7, 2003.
Decided: January 23, 2004.
Superior Court of the State of Delaware, in and for New Castle County, Cr.A. Nos. IN01-04-1576, -1581, and IN01-05-2004, Cr. ID 0104010887.
Before VEASEY, Chief Justice, HOLLAND, and JACOBS, Justices.
ORDER
This 23rd day of January 2004, upon consideration of the appellant's Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) The defendant-appellant, Akbar Hassan-El, was convicted by a Superior Court jury of first degree reckless endangerment, possession of a firearm during the commission of a felony, and resisting arrest. The jury acquitted Hassan-El of carrying a concealed deadly weapon. The Superior Court sentenced Hassan-El to a total period of ten years at Level V incarceration, to be suspended after serving five years for decreasing levels of supervision. This is Hassan-El's direct appeal.
(2) Hassan-El's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Hassan-El's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Hassan-El's attorney informed him of the provisions of Rule 26(c) and provided Hassan-El with a copy of the motion to withdraw and the accompanying brief. Hassan-El also was informed of his right to supplement his attorney's presentation. Hassan-El has raised several issues for this Court's consideration. The State has responded to the position taken by Hassan-El's counsel, as well as Hassan-El's points, and has moved to affirm the Superior Court's judgment.
(3) The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Supreme Court 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) In his response to his counsel's Rule 26(c) brief, Hassan-El has raised four discernable issues for the Court's consideration. First, Hassan-El asserts that the Superior Court abused its discretion in denying defense counsel's motion for a judgment of acquittal because the State's evidence was insufficient to convict him on all or some of the charged offenses. Second, Hassan-El contends that the Superior Court erred in giving the jury an instruction on flight. Third, Hassan-El contends that he was denied his constitutional right to a speedy trial. Finally, Hassan-El argues that the Superior Court erred by considering his then-pending capital murder charges in formulating its sentence on the present charges. We review these claims seriatim.
(5) On appeal from the denial of a motion for judgment of acquittal, this Court makes a de novo determination of whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could find a defendant guilty beyond a reasonable doubt. Viewing the evidence in the light most favorable to the State, the record fairly supports the following version of events. On the evening of April 17, 2001, three undercover police officers were working together in the area of Fourth and Dupont Streets in the city of Wilmington. Two of the officers testified at trial. Both officers indicated hearing a verbal altercation across the street from where they were standing. The officers saw two black males. One of the men was dressed all in denim with a dark hooded shirt underneath. The officers saw the man in denim fire several shots from a handgun. The officers identified themselves, ordered the men to stop, and gave chase when the men began running. Both officers testified that they saw the man in denim throw something as he ran. Moments later, the officers apprehended the suspects.
Davis v. State, 706 A.2d 523, 525 (Del. 1998).
(6) At trial, the officers identified Hassan-El as the man dressed in denim with the black hooded shirt. Another officer testified regarding a gun that was recovered in the street adjacent to the sidewalk down which the suspects had fled. Hassan-El testified at trial. He admitted being at the scene with his friend. He claimed that his friend asked him to hold some ammunition for him. Hassan-El contended that it was his friend, not him, who fired the gun.
(7) The jury convicted Hassan-El of first degree reckless endangering, possession of a firearm during the commission of a felony, and resisting arrest. To prove the elements of the first two offenses, the State had to prove beyond a reasonable doubt that Hassan-El recklessly engaged in conduct that created a substantial risk of death to another person by discharging a firearm in his possession. To prove the elements of resisting arrest, the State was required to prove that Hassan-El intentionally fled from police officers after he had been ordered to stop. Given the officers' testimony that they saw Hassan-El fire a weapon in a residential neighborhood and that Hassan-El fled after the officers identified themselves and ordered him to stop, we conclude that a rational juror could have found Hassan-El guilty beyond a reasonable doubt of the three charges. It was entirely within the jury's province as the trier of fact to credit the officers' eyewitness identification of Hassan-El and to reject Hassan-El's contention that he was not the individual who shot the gun. Accordingly, we find no error in the Superior Court's denial of Hassan-El's motion for judgment of acquittal.
11 Del. C. § 604, 1447A.
11 Del. C. § 1257.
See Chao v. State, 604 A.2d 1351, 1363 (Del. 1992).
(8) Hassan-El's second argument is that the Superior Court erred by instructing the jury on flight. No objection was made to this jury instruction at trial. Accordingly, we review this claim on appeal for plain error. The challenged instruction informed the jury that "[e]vidence of evasion of arrest and flight is admissible in a criminal case as a circumstance tending to show identity and consciousness of guilt." The Superior Court cautioned the jury that evidence of flight could not be considered for any other purpose than that stated. The judge also told the jury that the evidence of flight must be considered in light of all the other facts proved and that the jury was solely responsible for determining the significance of the evidence. Under the circumstances, we find the Superior Court's instructions on flight to be entirely appropriate. Several witnesses testified that Hassan-El fled the scene after being ordered to stop. Evidence of flight may be considered as tending to show consciousness of guilt. Accordingly, the Superior Court properly addressed the issue of flight within its instructions to the jury.
See Supr. Ct. R. 8.
Tice v. State, 382 A.2d 231, 233 (Del. 1977).
(9) Hassan-El next complains that he was denied his right to a speedy trial. In determining whether a defendant has been deprived of his right to a speedy trial, the Court will consider all relevant circumstances, including the following four factors: (a) the length of the delay; (b) the reason for the delay; (c) the defendant's assertion of the right to a speedy trial; and (d) prejudice to the defendant. None of the four factors alone is "either a necessary or sufficient condition" to finding a deprivation of the right to a speedy trial.
Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002).
Id. (quoting Barker v. Wingo, 407 U.S. 514, 533 (1972)).
(10) The length of the delay between Hassan-El's arrest and trial in this case was over twenty months. Although substantial, the reason for the delay is largely attributable to Hassan-El. The record reflects that the week after his arrest on these charges in April 2001, he was released on bail but was subsequently re-arrested three months later on unrelated charges that included first degree murder. The State argues that, for tactical reasons, defense counsel requested Hassan-El's trial on the reckless endangering and related charges be postponed because of his pending capital murder charges. Hassan-El does not dispute this contention, nor does he dispute that he never raised a speedy trial concern below. Furthermore, Hassan-El fails to assert that he suffered any prejudice as a result of the delay. Under these circumstances, we find no merit to Hassan-El's speedy trial claim.
(11) Finally, Hassan-El complains that the prosecutor improperly presented, and the Superior Court improperly considered, his capital murder charges at sentencing. In reviewing a sentence that is within statutory limits, as Hassan-El's sentence is, this Court will not find error unless it is clear from the record below that a sentence has been imposed on the basis of demonstrably false information or information lacking a minimal indicia of reliability. Even if we assume that the trial court considered Hassan-El's pending murder charges at sentencing in this case, which is an assumption unsupported by the record, it was within the Superior Court's broad discretion to consider any relevant information relating to Hassan-El's behavior, including pending criminal charges unrelated to the conduct for which he was convicted. Accordingly, we find no merit to this claim.
Walt v. State, 727 A.2d 836, 840 (Del. 1999) (quoting Mayes v. State, 604 A.2d 839, 843 (Del. 1992)).
In pronouncing sentence, the Superior Court reflected upon the evidence presented at trial and the seriousness of the crime involved, which involved the indiscriminate, repeated firing of a gun in a residential area. The judge noted that Hassan-El was "very, very fortunate standing here and not having killed somebody with what you did in this case." There is nothing to reflect that the judge considered any information beyond the specific facts of this case in sentencing Hassan-El within the statutory limits on the present charges.
See Siple v. State, 701 A.2d 79, 85 (Del. 1997).
(12) This Court has reviewed the record carefully and has concluded that Hassan-El's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Hassan-El's counsel has made a conscientious effort to examine the record and the law and has properly determined that Hassan-El 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.