Opinion
No. 411, 1998.
May 21, 1999.
Appeal from the Superior Court, CrA IN97-01-0884-0886, IN97-01-0888-0892 and IN97-01-1639-1641.
AFFIRMED.
Unpublished Opinion is below.
TERRENCE L. JONES, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 411, 1998. Supreme Court of Delaware. Submitted: April 9, 1999. Decided: May 21, 1999.
Court Below: Superior Court of the State of Delaware, in and for New Castle County Cr.A. No. IN97-01-0884 thru -0886, IN97-01-0888 thru -0892 and IN97-01-1639 thru -1641.
Before VEASEY, Chief Justice, WALSH and BERGER, Justices.
ORDER
This 21st day of May 1999, 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 November 1997, the defendant-appellant, Terrence L. Jones ("Jones"), was tried before a Superior Court jury on multiple criminal charges arising from the robbery of a Dollar Express store in Stanton, Delaware. The jury found him guilty of second degree conspiracy but was hung as to the remaining counts. A second trial was held in July 1998. Jones was found guilty of first degree robbery, two counts of attempted first degree robbery, second degree assault, second degree burglary, wearing a disguise during the commission of a felony, and five counts of possession of a firearm during the commission of a felony. The Superior Court sentenced Jones to one hundred sixty years in jail followed by probation. This is Jones' direct appeal from his convictions and sentences. We find no merit to the appeal. Accordingly, we affirm.
(2) Jones' counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Jones' counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Jones' attorney informed him of the provisions of Rule 26(c) and provided Jones with a copy of the motion to withdraw and the accompanying brief. Jones also was informed of his right to supplement his attorney's presentation.
(3) Jones filed a fairly lengthy response that complains about his trial in numerous respects. Of these complaints, we can discern only five cognizable legal issues. First, Jones attacks the credibility of the witnesses who testified against him, including a claim that at least one witness committed perjury. Second, Jones attacks the performance of his trial counsel in several respects. Third, Jones contends that the prosecutor made a misleading and prejudicial statement in his opening statement. Fourth, Jones complains that the jury may have been tainted by media coverage of his case. Finally, Jones contends that he was unfairly prejudiced by the testimony of one witness who suggested that Jones had engaged in prior criminal misconduct. The State has responded to the position taken by Jones' counsel as well as the points raised by Jones and has moved to affirm the Superior Court's decision.
(4) 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).
(5) The evidence fairly presented at trial reflects that in October 1996, Jones and his girlfriend, Tessa Fields, developed a plan to rob the Dollar Express store where Fields worked. On October 30, 1996, Fields was scheduled to work from 5:00 p.m. to 9:00 p.m. and then remain to help close up the store. She received permission, however, to leave at nine o'clock. She told her co-workers that she needed to catch a bus. She left the store at approximately 9:05, but she returned ten minutes later asking to use the bathroom. A co-worker, Joanne Santiago, unlocked the front door to let Fields back in the store. While inside, Fields received a phone call. Minutes later, Fields asked to be let out of the building again. Santiago escorted Fields back to the front door of the building. As Santiago unlocked the front door to let Fields out, an armed, masked man pushed his way into the store and struck Santiago several times. The man then went to the back of the store where two other employees were counting money. The robber demanded and received the money that the two employees were counting. When informed that the employees could not access the money contained in the store's safe, the robber ripped the phone from the wall and fled. Both Fields and her brother-in-law, George Kelly, who was waiting outside the store at Fields' request to give her a ride home, identified Jones as the robber.
(6) Jones' first contention on appeal is that the testimony of the witnesses who testified against him were not credible in many respects. He points out alleged inconsistencies in some of the witnesses' testimony and offers reasons why some other witnesses were motivated to offer perjured testimony against him. Under Delaware law, however, the jury is the sole trier of fact, responsible for determining witness credibility and resolving conflicts in the testimony. Tyre v. State, Del. Supr., 412 A.2d 326, 330 (1980). In this case it was entirely within the jury's discretion to accept the State's evidence, and we find that the evidence presented was sufficient as a matter of law to sustain the jury's verdicts. See Pryor v. State, Del. Supr., 453 A.2d 98, 100 (1982). Consequently, Jones' first contention is without merit.
(7) Jones' second category of complaints relates to the performance of his trial attorney. Jones contends that his attorney was ineffective in his cross-examination of key State witnesses, that his attorney failed to conduct an adequate pre-trial investigation, and that his attorney became angry with him during trial when Jones' tried to assist in the examination of a witness. This Court, however, will not consider on direct appeal any claim of ineffective assistance of counsel that was not raised below. Desmond v. State, Del. Supr., 654 A.2d 821, 829 (1994); Duross v. State, Del. Supr., 494 A.2d 1265, 1267 (1985). Accordingly, we will not consider Jones' claims of ineffective assistance of counsel for the first time in this direct appeal.
(8) Jones' third claim asserts that the prosecutor incorrectly told the jury in his opening statement that George Kelly would testify that he saw Jones running from the Dollar Express store on the night in question. Jones alleges that, contrary to the prosecutor's opening statement, Kelly testified that he never saw Jones go into or come out of the Dollar Express store. Jones' contention is without merit. The record reflects that Kelly testified he saw Jones in front of the Dollar Express on the night in question and that Jones was dressed in all black clothing with a black ski mask on his head that was not pulled down over his face. Although Kelly never saw Jones enter the store, several minutes after their initial encounter Kelly saw someone whom he believed to be Jones running away from the store. Kelly admitted that he could not see Jones' face as he was running away but that he believed the man to be Jones based on the man's build and the way he was dressed. The prosecutor's opening statement fairly depicted the substance of Kelly's testimony. Accordingly, Jones' third claim is without merit.
(9) Jones next suggests that jury may have been tainted by media coverage of his case. On the second day of trial, however, the trial judge asked the jurors whether any of them had read or heard anything about the case. There were no affirmative responses. Accordingly, this claim is factually unsubstantiated.
(10) Finally, Jones contends that he was unfairly prejudiced by a comment made by Tessa Fields during her testimony in which she stated that she had asked Jones "why does he have to do, keep doing things illegal?" Although not clearly articulated, Jones apparently contends that the reference to him "doing things illegal" violated Delaware Rule of Evidence 404(b). Jones did not object to this statement at trial. His claim therefore is waived unless the impropriety rises to the level of plain error. Supr. Ct. R. 8. Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process. Wainwright v. State, Del. Supr., 504 A.2d 1096, 1100 (1986). In this case, although Fields' statement was improper, we find that it was unsolicited, non-specific, and very brief. Therefore, Fields' improper comment does not rise to the level of plain error.
(11) This Court has reviewed the record carefully and has concluded that Jones' appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Jones' counsel has made a conscientious effort to examine the record and has properly determined that Jones 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:
/s/ E. NORMAN VEASEY, Chief Justice