IN TI-IE SUPREME COURT OF THE STATE OF DELAWARE

KEVIN WILLIAMS, §
§ No. 499, 2013
Defendant BeloW- §
Appellant, §
§ Court Below-Superior Court
v. § of the State of Delaware,
§ in and for New Castle County
STATE OF DELAWARE, § Cr. lD 1204002559
§
Plaintiff Below- §
Appe1lee. §

Submitted: June 30, 2014
Decided: August 21, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.
0 R D E R

This 21st day of August 2014, upon consideration of the appellant‘s brief
filed under Supreme Court Ru1e 26(0), his attorney's motion to withdraw, and the
State's response thereto, it appears to the Court that:

(1) In June 2013, a Superior Court jury convicted the appellant, Kevin
Williarns, on five counts of Unlawful Sexual Contact in the First Degree and one
count'of Continuous SeXual Abuse of a Child. ~The State ultimately dismissed two
of Williams’ convictions for Unlawful Sexual Contact. On his four remaining
convictions, the Superior Court sentenced Williams to a total period of twenty-nine
years at Level 5 imprisonment, to be suspended after serving twenty-three years in

prison for decreasing levels of supervision This is Williams’ direct appeal.

(2) Williams’ counsel on appeal has filed a brief and a motion to
withdraw under Rule 26(c). Williams’ counsel asserts that, based upon a complete
and careful examination of the record, there are no arguably appealable issues. By
letter, Williams’ attorney informed him of the provisions of Rule 26(c) and
provided Williams with a copy of the motion to withdraw and the accompanying
brief. Williams also was informed of his right to supplement his attorney’s
presentation. Williams has raised several issues for this Court's consideration. The
State has responded to the position taken by Williams’ counsel, as well as to the
points raised by Williarns, and has moved to affirm the Superior Court's judgment.

(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.l

(4) Williams initially was indicted in November 2012 on nineteen charges

of unlawful sexual contact and one count of continuous sexual abuse of a child.z

l Pens0n v. Ohz`o, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wz'sconsin, 486 U.S.
429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).

2 The State was permitted to amend the indictment twice prior to tria1.
2

Williams ultimately went to trial on only six charges. The victims were Williams’
minor daughters, both of whom testified against him at his four-day jury trial.
Williams’ older daughter testified about three specific incidents of molestation
occurring between 2003, when the victim was 8 years old, and 2009. Williams’
younger daughter also testiied against him about two specific incidents of
molestation. Williams testified in his own defense. He denied ever touching either
of his daughters in an inappropriate way. The jury convicted Williams of all six
charges, although the State later dismissed two of those charges.

(5) On appeal, Williams has submitted a sixteen-page typed document
that raises a number of overlapping issues. Williams’ arguments generally are that:
(i) the State committed a Brady:` violation by failing to provide Williams with a
copy of a police report dated November 10, 2011; (ii) the Superior Court erred in
denying the jury’s request to have a copy of the November 10, 2011 police report
during its deliberations; (iii) the victims’ out-of-court statements and trial
testimony contained various discrepancies and were inconsistent with the
statements reflected in the November 10, 2011 police report; (iv) his attomey-
client privilege was violated because his first lawyer tricked Williams into
unknowingly signing a waiver of his preliminary hearing and then later went to
work for the Attomey General’s oflice; and (v) the prosecutor engaged in

misconduct.

3 Brady v. Maryland, 373 U.S. 83 (1963).

(6) With respect to Williams’ claim of a Brady violation, the State asserts
that Williams had copies of all of the police reports, the Child Advocacy Center
interview, and the affidavit of probable cause. The trial transcript confirms that
defense counsel had copies of the documents and the taped interview because they
were referred to by defense counsel in his cross-examination of the State’s
witnesses and were used to point out inconsistencies between the victims’ prior
statements and their testimony at trial. Because the State provided defense counsel
with the police reports and victim statements, there is no factual basis for
Williams’ claim of a Brady violation. Moreover, because defense counsel did not
request that the November 2011 police report be admitted into evidence, the
Superior Court committed no error in denying the jury’s request to see it.‘
Accordingly, there is no merit to Williams’ Hrst two arguments on appeal.

(7) Williams also challenges the discrepancies between the various
reports and the testimony of the State’s witnesses at trial, which we interpret as a
challenge to the sufficiency of the evidence to sustain his convictions, When a
defendant challenges the sufficiency of the evidence on appeal, the relevant
question for this Court is whether "after reviewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

4 Elbert v. Scott, 90 A. 587, 594 (Del. 1914) (stating that "[p]apers not admitted in evidence
carmot go before a jury. . ..").

4

essential elements of the crime beyond a reasonable doubt."s In this case, we find
the State’s evidence sufficient to support Williams’ convictions beyond a
reasonable doubt. Although Williams argues that there were inconsistencies
between the victims’ out-of-court statements and their in-court testimony, the jury
is solely responsible for judging the credibility of the witnesses and resolving
conflicts in the evidence.° It was entirely within the ju.ry's purview to credit the
testimony of the State’s witnesses at trial. Thus, we find no merit to this argument.
(8) Williams next claims that his attorney-client privilege was violated
because his first attorney ended his representation of Williams and accepted a job
with the Department of Justice. 1n support of this claim, Williarns contends that
his first attorney tricked him into waiving his right to a preliminary hearing by
asking Williams to sign in for court when, in fact, the document Williams signed
was a waiver of preliminary hearing form. Williams also asserts that, on his Hrst
day of trial, he saw his first attomey in the courthouse wishing "good luck" to the
prosecutor in Williams’ case. Based on these two alleged incidents, Williams
seems to suggest that his first attomey actually was working on behalf of the

PI`OS€CU'COI`.

5 Williams v. State, 539 A.2d 164, 168 (Del. 1988) (quotz‘ng Jackson v. Vz'rgim`a, 443 U.S. 307,
319 (1979)).

6 '_ryre v. szme, 412 A.zd 326, 330 (Del. 1980).

(9) Williams did not raise this claim in the Superior Court. Generally,
this Court will not consider on direct appeal claims of ineffective assistance of
counsel that were not raised to the Superior Court in the first instance.7 The only
exception to this general rule is when the ineffectiveness is "so apparent from the
record that this Court can fully consider obvious deficiencies in representation."s
In this case, there is nothing in the current record before us to support Williams’
allegation that his first attomey was biased against him and had aided the State in
its prosecution of him. Accordingly, we will not consider this unsubstantiated
allegation of ineffective assistance of counsel in this direct appeal.

(10) Williams’ final contention alleges various instances of prosecutorial
misconduct. Specifically, Williams suggests that the prosecutor unfairly
overcharged him with twenty counts in order to compel him to plead guilty. In our
criminal justice system, as long as the prosecutor has probable cause to believe the
accused has committed an offense defined by statute, the decision on which
charges to submit to the grand jury generally rests entirely within the prosecutor’s
discretion.g Williams was obligated to raise any objections or defenses based on

alleged defects in the indictment prior to trial.l° Williams did not raise any

7 Dur@ss v. s:aze, 494 A.zd 1265, 1267 (Dei. 1935).

3 hobson v. sra¢e, 2013 wL 5918409, *2 (Del. oct 31, 2013).
’ Azbury v. s¢a¢e, 551 A.za 53, 61 (Del. 1938).

‘° Del. super. ct crim. R. 12(1>)(2),(1)(2014).

6

challenge to the indictment below, nor did he raise any objections to the State’s
two amendments to the indictment Accordingly, we will not consider this claim
on appeal."

(l1) Williams also contends that the prosecutor engaged in misconduct by
failing to collect exculpatory evidence, including his daughter’s Facebook account
as well as surveillance videos from a mall and a gas station, and in suppressing
evidence of the prosecutor’s notes from victim interviews, Although the State has
a duty to gather and preserve exculpatory evidence, 12 there is nothing in the record
to reflect that these materials were ever in the State’s possession or that Williams
ever requested the State to collect, preserve, and provide him with the surveillance
videos or the victim’s Facebook account. Moreover, Williams did not request any
relief from the Superior Court due to the absence of these materials. Accordingly,
the Court will not review this claim on appeal.“ Furthermore, to the extent that
Williams complains that the prosecutor withheld notes from victim interviews, the
prosecutor’s notes in conjunction with an investigation are not discoverable

material. 14

“ r)el. supr. ct R. s (2014).
12 611 A.zd 956 (Del. 1992).
‘3 Del. supr. ct R. s (2014).
‘4 Del. super ct crim. R. 16(¢1)(2) (2014).

(12) Finally, Williarns contends that the prosecutor engaged in misconduct
by interfering with his presentation of character witnesses. The record belies this
claim. Following the first day of trial, the Court and the parties discussed which of
Williams’ prior criminal charges and incidents of prior bad conduct the State
would be allowed to present in rebuttal to Williams’ sixteen identified character
witnesses. On the morning of the second day of trial, defense counsel infonned the
Court that Williams would not be presenting any character witnesses. Under the
circumstances, this was a tactical decision by Williarns’ attomey and reflects no
misconduct by the prosecutor.

(13) This Court has reviewed the record carefully and has concluded that
Williams’ appeal is wholly without merit and devoid of any arguably appealable
issue. We also are satisfied that Williams’ counsel has made a conscientious effort
to examine the record and has properly determined that Williams 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 'I`HE COURT:

”\»fé/SYALQQMLQ/

Justice U y

