Opinion
No. 216, 1998.
Submitted: December 14, 1998.
Decided: December 31, 1998.
Superior CrA IN96-10-1539 -1541.
AFFIRMED.
Unpublished opinion below.
JEREMY WALKER, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 216, 1998. In the Supreme Court of the State of Delaware. Submitted: December 14, 1998. Decided: December 31, 1998.
Before WALSH, HOLLAND, and HARTNETT, Justices.
ORDER
This 31st day of December 1998, 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 January 1998, a Superior Court jury convicted the defendant-appellant, Jeremy Walker ("Walker"), of second degree burglary, felony theft, and criminal mischief. The Superior Court sentenced Walker to serve a total of two years at Level V incarceration followed by five years at decreasing levels of supervision. This is Walker's direct appeal from his convictions and sentences.
(2) Walker's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Walker's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Walker's attorney informed him of the provisions of Rule 26(c) and provided Walker with a copy of the motion to withdraw and the accompanying brief. Walker also was informed of his right to supplement his attorney's presentation. Walker responded with a letter to his counsel in which he raised a single issue for this Court's consideration. The State has responded to the position taken by Walker's counsel as well as the point raised by Walker 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) Walker's only apparent contention on appeal is that the evidence was insufficient to support his convictions. Walker essentially asserts that one of the State's witnesses, who was the only eyewitness to Walker's alleged crime, was too far away to have positively identified him as one of the perpetrators. The witness in question, Leonard Hardy, testified that he is a neighbor and friend of the victim, Martin Morales. Hardy testified that he was standing in front of his house waiting for his girlfriend on the morning of October 7, 1996. At about 11:00 a.m. he noticed a small pick-up truck park in front of Morales' house, which was five houses away from where Hardy was standing. Hardy saw two white males exit the truck. After several minutes, the two men returned to the truck and threw what appeared to be a small bag into the back. Morales arrived about 15 minutes after the truck left. When he heard that Morales had been robbed, Hardy contacted him and later spoke with the police. Hardy identified Walker as one of the men he saw in the pick-up truck.
(5) In reviewing a claim of insufficient evidence, this Court's standard of review is "whether any rational trier fact, viewing the evidence in the light most favorable to the State, could find the defendant guilty beyond a reasonable doubt." Robertson v. State, Del. Supr., 596 A.2d 1345, 1355 (1991). Under Delaware law, the jury is the sole trier of fact, responsible for determining witness credibility and resolving conflicts in testimony. Tyre v. State, Del. Supr., 412 A.2d 326, 330 (1980). In this case, defense counsel attempted to discredit Hardy's testimony by challenging his ability to see the events in question based on his vantage point several houses away from the site of the alleged burglary. Nonetheless, we find it was entirely within the purview of the jury to credit Hardy's testimony and the testimony of the other State witnesses, notwithstanding the alibi defense presented by Walker. We find that a rational juror in this case could find Walker guilty beyond a reasonable doubt. Accordingly, Walker's claim of insufficient evidence is without merit.
(6) This Court has reviewed the record carefully and has concluded that Walker's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Walker's counsel has made a conscientious effort to examine the record and properly has determined that Walker 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.