IN THE SUPREME COURT OF THE STATE OF DELAWARE
JEFFREY W. THOMAS, §
§
Defendant Below- § No. 156, 2015
Appellant, §
§
v. § Court Below: Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID. No. 1403008516
Plaintiff Below- §
Appellee. §
Submitted: October 7, 2015
Decided: December 17, 2015
Before STRINE, Chief Justice; HOLLAND and SEITZ, Justices.
ORDER
This 17th day of December 2015, 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) After a two-day jury trial in January 2015, the defendant-appellant,
Jeffrey Thomas, was convicted of Burglary in the Second Degree, Theft of a Motor
Vehicle, Theft, and Conspiracy in the Second Degree. On March 3, 2015, the State
filed a motion to declare Thomas to be a habitual offender. On March 12, 2015,
the Superior Court sentenced Thomas as a habitual offender to a total period of
twenty-two years at Level V incarceration, to be suspended after serving
twenty-one years in prison for probation. This is Thomas’s direct appeal.
(2) Thomas’s counsel on appeal has filed a brief and a motion to
withdraw under Rule 26(c). Thomas’s counsel asserts that, based upon a complete
and careful examination of the record, there are no arguably appealable issues. By
letter, Thomas’s attorney informed him of the provisions of Rule 26(c) and
provided Thomas with a copy of the motion to withdraw and the accompanying
brief. Thomas also was informed of his right to supplement his attorney’s
presentation. Thomas filed several points for this Court’s consideration. The State
has responded to Thomas’s points, as well as to the position taken by Thomas’s
counsel, and has moved to affirm the Superior Court’s judgment.
(3) The trial record fairly reflects that, on March 8, 2014, Dover police
responded to a report of a burglary and car theft. The victim lived alone in a first
floor apartment on Division Street. She told police that, sometime after she went
to sleep the previous evening, someone had entered her apartment and taken her
computer, cell phone, wallet, and car keys, among other things. Her car, a 2005
Nissan Sentra, was missing from where she had parked it outside her apartment.
Later that morning, the victim discovered that her credit card had been used at a
nearby convenience store and a Burger King restaurant. After interviewing
witnesses and reviewing surveillance evidence from the two businesses, the police
were able to develop Monica Heath and Thomas as suspects. At trial, the victim
testified that the day before the burglary, Thomas, whom she did not know, had
2
helped her carry groceries into her apartment. The victim never informed the
police about this encounter before trial.
(4) The investigating officer, Detective Toto, interviewed Thomas on
March 12, 2014 at the police station. The interview was recorded, but the
recording quality was poor. At trial, Detective Toto testified that Thomas told him
that he and Heath went to the apartment on Division Street and saw the victim
sleeping in her bed. Thomas lifted Heath up through an open window, and Heath
unlocked the front door of the apartment to let Thomas in. Thomas took the
victim’s car keys. The recording of Thomas’s interview was admitted at trial
without objection.
(5) Thomas testified in his own defense at trial. He admitted lifting Heath
up through the window. He also admitted that he knew the apartment did not
belong to Heath. He asserted, however, that he had never entered the apartment
and that Heath drove off in the victim’s car alone. He further denied that he had
ever been in the apartment or helped the victim with her groceries the day before
the burglary.
(6) The jury found Thomas guilty of second degree burglary, theft of a
motor vehicle, second degree conspiracy, and theft. The State filed a motion to
declare Thomas to be a habitual offender on March 3, 2015. After Thomas
conceded before sentencing that he previously had been convicted of four predicate
3
felonies, the Superior Court declared Thomas to be a habitual offender and
sentenced him accordingly to a total period of twenty-two years at Level V
incarceration, to be suspended after serving twenty-one years in prison for
decreasing levels of supervision. This appeal followed.
(7) Thomas fairly raises the following eight points for the Court’s
consideration on appeal: (i) the Superior Court erred in allowing Detective Toto to
testify about what Thomas said during the videotaped interview; (ii) the Superior
Court should have given a jury instruction under 11 Del. C. § 274; (iii) Thomas did
not receive adequate notice of the State’s habitual offender motion; (iv) the State
failed to preserve evidence; (v) the indictment was defective; (vi) Thomas’s
statement to police was not knowing, intelligent, and voluntary; (vii) Thomas was
denied the right to confront Heath, his codefendant; and (viii) Thomas should not
have been declared a habitual offender because his New Jersey convictions for
third degree burglary were not qualifying predicate convictions.
(8) 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
4
devoid of at least arguably appealable issues that it can be decided without an
adversary presentation.1
(9) Thomas’s first and sixth arguments relate to his videotaped statement
to Detective Toto after his arrest. Thomas asserts that his statement should not
have been admitted because it was involuntary because he did not know he was
being videotaped and because he was high on cocaine. Thomas also argues that
the Superior Court erred in overruling his objection at trial to Detective Toto’s
testimony regarding his recollection of what Thomas said to him during the
videotaped interview.
(10) Thomas did not move before trial to suppress his statement to the
police as involuntary, nor did he object to the admission of the videotaped
statement at trial. In the absence of plain error, which we do not find, we will not
consider Thomas’s challenge to the admission of his statement for the first time on
appeal.2 Moreover, we find no error or abuse in the Superior Court’s decision to
overrule defense counsel’s objections to Toto’s testimony regarding his
recollection of what Thomas said to him during the interview. Thomas’s
1
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).
2
Del. Supr. Ct. R. 8 (2015).
5
statements to Toto were the admissions of a party opponent and were admissible
under Delaware Rule of Evidence 801(d)(2).3
(11) Thomas next argues that the Superior Court erred in failing to give a
jury instruction under 11 Del. C. § 2744 regarding his state of mind as to the second
degree burglary charge. Defense counsel did not request such an instruction at
trial, so this claim may only be reviewed on appeal for plain error.5 We find no
plain error in this case. Thomas was not charged with first degree burglary, and
there was no basis for a charge regarding third degree burglary because, as the
Superior Court judge properly found, the undisputed factual evidence established
that the victim’s apartment was a “dwelling.”6 Thus, the only state of mind that the
jury had to consider was whether Thomas acted “knowingly” under the second
degree burglary statute.7 The jury was properly instructed on all of the elements of
second degree burglary, including a “knowing” state of mind, and on the issue of
accomplice liability. Moreover, Thomas admitted during his testimony at trial that
he knowingly assisted Heath in entering an occupied apartment that did not belong
3
D.R.E. 801(d)(2) provides that a party-opponent’s out-of-court statements are not hearsay.
Thus, such statements are admissible at trial.
4
11 Del. C. § 274 provides in relevant part that when two or more people are criminally liable
for an offense that is divided into degrees, “each person is guilty of an offense of such degree as
is compatible with that person’s own culpable mental state….”
5
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1996).
6
Under 11 Del. C. § 829(b) (Supp. 2014), a “dwelling” means a building that is usually occupied
by a person lodging there at night.
7
The second degree burglary statute, 11 Del. C. § 825, provides in relevant part under subsection
(a)(1) that a “person is guilty of burglary in the second degree when the person knowingly enters
or remains unlawfully … in a dwelling with intent to commit a crime therein.”
6
to her. Under these circumstances, the absence of an instruction under § 274 was
not error.
(12) Thomas next contends that he did not receive sufficient prior notice of
the State’s motion to seek habitual offender sentencing in order to prepare a
defense. There is no merit to this claim. The State filed its motion to seek habitual
offender sentencing on March 3 after a presentence investigation. Sentencing was
scheduled for March 12. The State was required to file its motion “after conviction
and before sentence,”8 which it did. Thomas did not ask for a continuance of the
sentencing date in order to prepare a defense, nor did he complain about
inadequate notice of the State’s intent to seek habitual offender sentencing prior to
the Superior Court’s consideration of the motion. In fact, Thomas’s only response
to the State’s habitual offender motion was to admit on the record that he had been
convicted of each of the four predicate felonies set forth in the State’s motion.
Thus, we reject this claim on appeal.
(13) Moreover, Thomas’s claim that his New Jersey convictions for third
degree burglary were not qualifying predicate offenses for habitual offender
sentencing is simply incorrect. The relevant habitual offender statute, 11 Del. C.
§ 4214(a), provides that “[a]ny person who has been 3 times convicted of a felony
… under the laws of this State, and/or any other state … who shall thereafter be
8
11 Del. C. § 4215(b) (2007).
7
convicted of a subsequent felony of this State is declared to be an [sic] habitual
offender….”9 Thus, Thomas’s felony convictions in New Jersey qualified as
predicate offenses under Section 4214(a). His claim to the contrary has no merit.
(14) Thomas next argues that the State erred in failing to preserve evidence
of still photographs taken by security cameras at the convenience store where the
victim’s credit card was used. In support of this assertion, Thomas cites to
Deberry v. State,10 although he does not argue how Deberry applies to his case.
We held in Deberry that the State is obligated to preserve evidence that is material
to a defendant’s guilt or innocence and that if the State fails to preserve material
evidence, then the defendant is entitled to have the jury instructed that they should
presume the missing evidence was exculpatory.11
(15) Thomas never raised this claim below. Accordingly, we review only
for plain error.12 In this case, there is nothing in the record to suggest that Thomas
requested the State to produce the still photographs or that the State failed to
produce them. Moreover, the testimony at trial established that Thomas was not
even visible in the still photographs, thus it is unclear that the photographs were
material in any way to the charges against Thomas. We find no plain error.
9
11 Del. C. § 4214(a) (2007).
10
457 A.2d 744 (Del. 1983).
11
Id. at 754.
12
Del. Supr. Ct. R. 8 (2015).
8
(16) Thomas next contends that the Superior Court erred in amending the
indictment to delete Monica Heath’s name. Although defense counsel initially
expressed concern about deleting Heath’s name from the indictment, he did not
object to the amendment. Thus, we review this claim on appeal for plain error. 13
Thomas cites no legal authority in support of his contention that the State was
required to name his codefendant in the indictment. Moreover, under Delaware
law, a defendant who is indicted as a principal may be convicted as an accomplice
and vice versa.14 Thus, the amendment to the indictment did not include additional
or different offenses and did not prejudice Thomas’s substantial rights.15 We find
no plain error on appeal.
(17) Finally, Thomas contends that he was denied his right to confront
Heath at trial. At its core, Thomas faults his trial counsel for failing to call Heath
as a witness. This Court, however, will not consider claims of ineffective
assistance of counsel for the first time on direct appeal.16
(18) This Court has reviewed the record carefully and has concluded that
Thomas’s appeal is wholly without merit and devoid of any arguably appealable
issue. We also are satisfied that Thomas’s counsel has made a conscientious effort
13
Del. Supr. Ct. R. 8 (2015).
14
11 Del. C. § 275 (2007).
15
Del. Super. Ct. Crim. R. 7(e) (2015) (providing that the Superior Court may permit the
amendment of the indictment any time before the jury’s verdict “if no additional or different
offense is charged and if substantial rights of the defendant are not prejudiced.”).
16
Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
9
to examine the record and the law and has properly determined that Thomas could
not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
10
Thomas v. State
Combined Opinion