IN THE SUPREME COURT OF THE STATE OF DELAWARE
MANUEL SALABERRIOS, §
§ No. 248, 2016
Defendant Below, §
Appellant, § Court Below–Superior Court of
§ the State of Delaware
v. §
§ Cr. ID No. 1405016171
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: October 28, 2016
Decided: January 20, 2017
Before STRINE, Chief Justice; VAUGHN and SEITZ, Justices.
ORDER
This 20th day of January 2017, having considered the appellant’s brief under
Supreme Court Rule 26(c), his attorney’s motion to withdraw, and the State’s
response, it appears to the Court that:
(1) In May 2014, the appellant, Manuel Salaberrios, and another man,
Scott Kuntz, were incarcerated at the Central Violation of Probation Center
(CVOP) near Smyrna, Delaware. On May 19, 2014, the two men were in the
CVOP’s housing area during free time when Salaberrios struck Kuntz in the face.
The incident was recorded by a CVOP security camera. Following the incident,
Kuntz was examined by a registered nurse in the CVOP’s medical unit. The nurse
noted a laceration on the inside of Kuntz’ lower lip and some swelling. Kuntz told
the nurse that he was not in pain, and he declined medication for the injury.
(2) As a result of the incident, Salaberrios was indicted in June 2014 on
one count of assault in a detention facility for having intentionally caused physical
injury to Kuntz.1 On December 12, 2014, a Superior Court jury convicted
Salaberrios of attempted assault in a detention facility as a lesser-included offense
of assault in a detention facility.2 At sentencing on April 29, 2016, the Superior
Court declared Salaberrios a habitual offender and sentenced him to a mandatory
minimum of eight years at Level V incarceration followed by six months at Level
IV. This is Salaberrios’ direct appeal.
(3) On appeal, Salaberrios’ appellate counsel has filed a no-merit brief
and a motion to withdraw under Supreme Court Rule 26(c).3 Appellate counsel
asserts that, based upon a complete and careful examination of the record, there are
no arguably appealable issues in Salaberrios’ case. Appellate counsel has advised
the Court that he provided Salaberrios with a copy of the motion to withdraw, the
no-merit brief and appendix in draft form, and a letter requesting that Salaberrios
1
See 11 Del. C. § 1254(a) (“Any person who, being confined in a detention facility, intentionally
causes physical injury to . . . any other person confined in a detention facility . . . shall be guilty
of [assault in a detention facility].”)
2
See 11 Del. C. § 531(2) (“A person is guilty of an attempt to commit a crime if the person . . .
[i]ntentionally does or omits to do anything which, under the circumstances as the person
believes them to be, is a substantial step in a course of conduct planned to culminate in the
commission of the crime by the person.”).
3
Salaberrios was represented by different counsel at trial.
2
send him written points for the Court’s consideration. Salaberrios sent written
points to appellate counsel. The points are included in the brief. The State has
responded to the no-merit brief, Salaberrios’ written submission, and has moved to
affirm the Superior Court’s judgment.
(4) When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must be satisfied that the appellant’s counsel has made
a conscientious examination of the record and the law for arguable claims.4 Also,
the Court must conduct its own review of the record and determine “whether the
appeal is indeed so frivolous that it may be decided without an adversary
presentation.”5 In this case, having conducted “a full examination of all the
proceedings” and found “no nonfrivolous issue for appeal,”6 the Court is satisfied
that Salaberrios’ appellate counsel made a conscientious effort to examine the
record and the law and properly determined that Salaberrios could not raise a
meritorious claim on appeal.
(5) The record reflects that, on the first day of trial, the prosecutor asked
the Superior Court to conduct a colloquy with Salaberrios on his decision to reject
the State’s plea offer. The prosecutor also indicated that the State would be
4
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
Penson v. Ohio, 488 U.S. at 81.
6
Id. at 80.
3
requesting a jury instruction on attempted assault in a detention facility as a lesser-
included offense of assault in a detention facility.
(6) The State’s plea offer required Salaberrios to plead guilty to assault in
a detention facility, which has a two-year mandatory minimum sentence of
incarceration.7 As part of the offer, the State agreed that it would not seek habitual
offender sentencing and that it would recommend that the court impose no more
than three years of incarceration.
(7) The Superior Court conducted a colloquy with Salaberrios about the
plea offer and the potential consequences of accepting and rejecting the plea. At
the conclusion of the colloquy, the court took a recess to give Salaberrios extra
time to consult with his trial counsel and consider the offer. An excerpt from the
trial transcript reflects the following exchange.
TRIAL JUDGE: All right. And the State’s charged you with assault in a
detention facility, and apparently thinks that because of your criminal
history, you’re going to qualify for sentencing as a habitual offender.
They’ve told you that, I assume; right?
SALABERRIOS: Yes, Your Honor.
TRIAL JUDGE: And has [your trial counsel] gone over the fact that if
you – if this trial doesn’t go the way you’d like it to go and you’re
convicted, the State is going to play its card that you’re habitual, and
then they’re going to force me to impose an eight-year jail sentence.
And what I want to assure you of is if this doesn’t go right today, I
have no discretion. Assuming you qualify for habitual, that is, you
7
11 Del. C. § 1254(a).
4
have three prior felony convictions. . . . I have to impose an eight-
year sentence. I have no discretion. I have no choice. . . . Okay?
SALABERRIOS: Okay.
***
TRIAL JUDGE: Now, look, you’re standing here. You’ve got two
guards behind you and a bailiff here. Do you want a couple of
minutes to think about this?
SALABERRIOS: Yes, Your Honor.8
After a short recess, Salaberrios’ trial counsel informed the court that Salaberrios
wanted to proceed to trial.
(8) At the start of trial, Salaberrios’ trial counsel moved to dismiss the
indictment, arguing that the State could not proceed without a witness who could
testify “as to whether or not there was actually something going on between
[Salaberrios and Kuntz] or if they were just fooling around or anything like that.”9
The Superior Court denied the motion, ruling that “[t]he State can proceed and try
its case however it can try its case.”10 In its case in chief, the State introduced the
video footage from the CVOP’s security camera, the testimony of a correctional
officer who was working at the CVOP on the date of the incident, and the
testimony of the nurse who examined Kuntz.
8
Trial Tr. at 8–13 (Dec. 11, 2014).
9
Id. at 14.
10
Id.
5
(9) Following the jury verdict on December 12, 2014, the Superior Court
ordered a presentence investigation and scheduled sentencing for March 20, 2015.
On January 23, 2015, the State filed a motion to declare Salaberrios a habitual
offender.
(10) On December 19 and December 29, 2014, Salaberrios submitted pro
se letters informing the Superior Court that he was hearing voices and having other
symptoms of mental illness for which he needed medical treatment. On March 4,
2015, the Superior Court ordered that Salaberrios receive a mental health
evaluation. A few days later, the court ordered that further proceedings—such as
Salaberrios’ sentencing—should be stayed until the court received the report from
the mental health evaluation.
(11) The Superior Court record includes the March 13, 2015 mental health
evaluation report submitted by a licensed psychologist affiliated with the
Department of Correction Bureau of Correctional Healthcare. The report states
that the psychologist evaluated Salaberrios on March 12, 2015 “for diagnostic and
treatment planning purposes.” The report provides a diagnosis based on
Salaberrios’ “current mental status” and makes recommendations for treatment
during Salaberrios’ incarceration.
(12) In his points on appeal, Salaberrios asks the Court to consider that (1)
the jury should not have been permitted to consider the lesser-included offense of
6
attempted assault in a detention facility; (2) there was insufficient evidence to
support the jury’s verdict; (3) he was not competent to stand trial; (4) he was
denied the right to confront his accuser; (5) the prosecution withheld witnesses
who would have provided testimony favorable to the defense; (6) the jury
instructions contained errors; and (7) his trial counsel was ineffective. For the
following reasons, the Court concludes that Salaberrios’ points are without merit or
are not subject to review on direct appeal.
(13) Salaberrios contends that the Attorney General’s decision to bring a
criminal prosecution against him was motivated by the personal animus of a
correctional officer. The claim is without merit. A prosecutor has broad discretion
to bring criminal charges “so long as the prosecutor has probable cause to believe
that the accused committed an offense defined by statute.”11 In this case,
Salaberrios has not substantiated, and the record does not reflect, that the decision
to prosecute him for assault in a detention facility was motivated by the personal
animus of a correctional officer.
(14) Salaberrios contends that the State’s decision not to call Kuntz to
testify was a violation of his constitutional right to confront his accuser. Also,
Salaberrios contends that the State “withheld information that could help the
[defense]” when the prosecutor did not call two correctional officers to testify,
11
Albury v. State, 551 A.2d 53, 61 (Del. 1988) (quoting Bordenkircher v. Hayes, 434 U.S. 357,
364 (1978)).
7
even though the officers were included on the State’s witness list. Both claims are
without merit. The Confrontation Clause of the Sixth Amendment guarantees a
defendant the right to cross-examine an adverse witness at trial.12 It does not
13
require the State to call any particular individual to testify as a witness, even
when the individual is listed on the State’s list of potential witnesses.14 Salaberrios
has not demonstrated that the State’s decision not to call the two correctional
officers in its case-in-chief constituted a failure to disclose exculpatory or
impeaching information to the defense.15 The State did not suppress the identity of
the two officers.16 Salaberrios knew of the officers before trial and could have
called them to testify for the defense.
(15) Salaberrios contends that the Superior Court should not have granted
the State’s request to instruct the jury on attempted assault in a detention facility,
and that the jury instructions given by the court contained errors. The claims are
without merit. The Superior Court is required to provide a lesser-included offense
12
Reed v. State, 1994 WL 100083, at *2 (Del. Mar. 23, 1994) (“The main and essential purpose
of confrontation is to secure for the opponent the opportunity for cross-examination.” (quoting
Davis v. Alaska, 415 U.S. 308, 315-16 (1974))).
13
Gordon v. State, 1990 WL 168256, at*2 (Del. Sept. 17, 1990) (citing Delaware v. Fensterer,
474 U.S. 15, 22 (1985)).
14
See e.g., Charbonneau v. State, 904 A.2d 295, 302 (Del. 2006) (providing that the State’s list
of potential witnesses did not obligate the State to call all those listed).
15
In Brady v. Maryland, the United States Supreme Court held that the State’s failure to disclose
material exculpatory or impeaching evidence to the defense is a violation of the Fourteenth
Amendment. Brady v. Maryland, 373 U.S. 83, 87 (1963).
16
Id. To constitute a Brady violation, the evidence at issue must have been suppressed by the
State. Robinson v. State, 2016 WL 5957289, at **2 (Del. Oct. 13, 2016) (citing Norman v. State,
968 A.2d 27, 30 (Del. 2009)).
8
instruction upon request by either party if the evidence presented at trial is such
that a jury could rationally find the defendant guilty of the lesser-included offense
and acquit the defendant of the greater offense.17 In this case, the Superior Court
properly granted the State’s request to instruct the jury on attempted assault in a
detention facility as a lesser-included offense. The evidence at trial supported the
instruction. We have reviewed the instructions given by the court and can find no
error. As required, the instructions as a whole provide a correct statement of the
law, are informative, and are not misleading.18
(16) Salaberrios contends that there was insufficient evidence to convict
him of assault in a detention facility. The claim is without merit. Salaberrios was
not convicted of assault in a detention facility. He was convicted of attempted
assault in a detention facility. When evaluating a sufficiency of the evidence
claim, the Court must ask if, considering the evidence in the light most favorable to
the State, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.19 In this case, to find Salaberrios guilty of
attempted assault in a detention facility, the jury was required to find, beyond a
reasonable doubt, that Salaberrios took a substantial step to commit assault in a
17
Brown v. State, 2013 WL 434054, at *3 (Del. Feb. 4, 2013) (citing Wiggins v. State, 902 A.2d
1110, 1113 (Del. 2006)).
18
Rybicki v. State, 119 A.3d 663, 675 (Del. 2015).
19
Goode v. State, 136 A.3d 303, 314 (Del. 2016).
9
detention facility, that is, to cause physical injury to Kuntz.20 The evidence in this
case included the video footage from the CVOP security camera showing
Salaberrios striking Kuntz in the face. The evidence was sufficient to find
Salaberrios guilty beyond a reasonable doubt of attempted assault in a detention
facility.
(17) Salaberrios contends that he was “not mentally fit” to stand trial. “To
be competent to stand trial, a defendant must have ‘a sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding’ and
must possess ‘a rational as well as factual understanding of the proceedings against
him.’”21 The Superior Court must inquire into a defendant’s competence when
there is a reason to doubt the defendant’s competence to stand trial.22 In this case,
the trial transcript does not reveal any indication that Salaberrios was unable to
consult with his trial counsel with a reasonable degree of rational understanding or
that he did not have a rational and factual understanding of the proceedings against
him. On direct appeal, in the absence of any indication in the trial transcript that
Salaberrios not competent to stand trial or that the Superior Court had a reason to
doubt his competence, Salaberrios’ claim that he was not competent to stand trial is
without merit.
20
Supra notes 1, 2.
21
Kostyshyn v. State, 51 A.3d 416, 420 (Del. 2012) (internal citations omitted).
22
Id.
10
(18) Salaberrios contends that his trial counsel “neglected to let the court
know about his mental issues” and that counsel failed to make sure he understood
“what was meant by lesser included.” Salaberrios also contends that his trial
counsel was not prepared to defend against the lesser-included offense of
attempted assault in a detention facility. The Court does not consider claims of
ineffective assistance of counsel on direct appeal.23 Salaberrios may bring those
claims in a motion for postconviction relief filed in the Superior Court.
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/ Collins J. Seitz, Jr.
Justice
23
Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
11