Opinion
No. 285, 1998.
Submitted: December 7, 1998.
Decided: December 29, 1998.
Superior CrA IN97-02-0100.
AFFIRMED.
Unpublished opinion is below.
ANTHONY WALKER, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 285, 1998. In the Supreme Court of the State of Delaware. Submitted: December 7, 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), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) In November 1998, the Superior Court, sitting without a jury, found the defendant-appellant, Anthony Walker ("Walker"), guilty of possession with intent to deliver a narcotic drug and not guilty of two other related charges. The Superior Court sentenced Walker to thirty years in jail, suspended after a mandatory minimum fifteen year term for ten years of probation. This is Walker's direct appeal from his conviction and sentence.
(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.
(3) Walker has raised three issues for this Court's consideration. First, Walker asserts that his counsel was constitutionally ineffective for failing to challenge the search that led to Walker's arrest. Second, Walker contends that the evidence was insufficient to support his conviction for possession with intent to deliver. Third, Walker contends that the Superior Court inappropriately shifted the burden of proof onto the defense to prove that Walker only possessed the drugs for his own consumption and that he did not have the intent to distribute. The State has responded to the position taken by Walker's counsel as well as the points raised by Walker 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) Walker's first assertion is that his trial counsel was ineffective for failing to challenge the legality of the search that led to his arrest. 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 Walker's claim of ineffective assistance for the first time in this direct appeal.
(6) Walker's second claim, challenging the sufficiency of the evidence, also was never presented to the Superior Court in the first instance. Such a claim normally is reviewable on appeal only if the defendant has first presented it to the trial court either in a timely motion for judgment of acquittal or motion for directed verdict. Monroe v. State, Del. Supr., 652 A.2d 560, 563 (1995). Because Walker did not file such a motion in this case, his claim is waived unless the trial court committed plain error. See id; Supr. Ct. R. 8. In determining whether the trial court committed plain error in failing to grant a judgment of acquittal sua sponte, this Court, viewing the evidence in the light most favorable to the State, must determine whether any rational trier of fact could have found Walker guilty beyond a reasonable doubt of possession with intent to deliver. See Robertson v. State, Del. Supr., 596 A.2d 1345, 1355 (1991).
(7) In this case, Detective Thomas Looney of the Wilmington Police Department testified that on the afternoon of January 10, 1997 approximately eight officers executed a search warrant for the residence of Benjamin Ellegood. The officers found three individuals inside the dwelling, including Walker, Ellegood, and Lawanda Archie. The officers recovered one bag of heroin from Archie, which had a street value of about $15. The officers also recovered 22 bags of heroin, which Looney testified had a total street value of about $320, from Walker's person. Finally, Looney testified that six similar-sized bags of heroin were found under the mattress on which Ellegood was sleeping. Looney testified that no other evidence, such as drug paraphernalia or cash, were found in Ellegood's apartment.
(8) Looney, who was a veteran police officer experienced in drug sales, testified that the 22 bags of heroin found on Walker appeared to be packaged for sale. Looney also stated that that quantity of heroin, which had an undisputed street value of $320, was more than the average heroin addict would purchase at one time.
(9) Walker testified in his own defense. He stated that he was a drug addict but did not sell drugs. He stated that he purchased the 22 bags of drugs earlier that morning for $150. He testified that he had purchased such a large quantity because he knew that it was a good deal. He also stated that he typically would use seven or eight $15 bags a day, and so the 22 bags that the police found in his possession was only enough for his personal consumption for a few days. Walker further testified that he went to Ellegood's apartment around 7 o'clock that morning to telephone someone for a ride home. Walker stated that he was in the process of consuming one of the bags he had bought, which he left sitting on the coffee table, when he apparently fell asleep and missed his ride. He awoke that afternoon to the police entering the apartment. Detective Looney stated that the police did not find any open bag of drugs on Ellegood's coffee table.
(10) After considering the testimony, the Superior Court, sitting without a jury, declared that it found Walker's testimony not to be credible. The judge did not find it credible that Walker purchased such a large quantity of drugs for only half of what the drugs were worth. Under Delaware law, the judge, sitting without a 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). It is entirely within the trial court's discretion to accept one witness' testimony and reject the conflicting testimony of other witnesses. See Pryor v. State, Del. Supr., 453 A.2d 98, 100 (1982).
(11) In this case, it clearly was within the purview of the trial court, sitting without the jury, to credit the evidence presented by the State, notwithstanding the conflicting testimony presented by Walker. On the face of this record, it is clear that the State presented sufficient evidence to sustain Walker's conviction for possession with intent to deliver. The State's evidence concerning the quantity of the drugs and the circumstances under which Walker possessed the drugs was clearly sufficient to allow the Superior Court to infer Walker's intent to deliver the drugs. See Malloy v. State, Del. Supr., 462 A.2d 1088, 1091-92 (1983). Consequently, Walker's second contention is without merit.
(12) Walker's final claim is that the Superior Court improperly shifted the burden of proof by requiring him to prove that he did not possess the drugs with the intent to sell them. Walker has not explained the basis for his claim of error nor has he cited to any evidence in the record to support it. Consequently, the absence of any record to support this unsubstantiated claim precludes appellate review. Tricoche v. State, Del. Supr., 525 A.2d 151, 154 (1987).
(13) 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 has properly 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.