      IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL WALKER,                          §
                                         §   No. 324, 2016
      Defendant Below-                   §
      Appellant,                         §
                                         §
      v.                                 §   Court Below—Superior Court
                                         §   of the State of Delaware
STATE OF DELAWARE,                       §
                                         §   Cr. ID 1511009579
      Plaintiff Below-                   §
      Appellee.                          §

                           Submitted: October 20, 2016
                           Decided: January 3, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                  ORDER

      This 3rd day of January 2017, 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)    In June 2016, the defendant-appellant, Michael J. Walker, was

convicted following a Superior Court bench trial of Possession of a Firearm

by a Person Prohibited (“PFPP”). The Superior Court sentenced Walker to

fifteen years at Level V incarceration, to be suspended after serving a

minimum mandatory term of five years in prison for decreasing levels of

supervision. This is Walker’s direct appeal.
      (2)    Walker’s counsel on appeal has filed a brief and a motion to

withdraw under 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)    In response to his counsel’s Rule 26(c) brief, Walker submitted

two points for the Court’s consideration. First, he contends that the gun

should not have been admitted into evidence because the State failed to

establish a continuing chain of custody. Second, he asserts that there was

missing or tainted evidence because the officer who recovered the gun

testified at trial that the gun she retrieved contained nine bullets (one in the

chamber and eight in the magazine), however, the evidence envelope at trial

contained the gun, magazine, and only eight bullets. Walker contends that

the missing bullet tainted the gun evidence, rendering all of the evidence in

the envelope inadmissible.

      (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



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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.1

       (5)   The State’s evidence at trial fairly established the following

version of events. On September 9, 2015, at approximately 1:45 A.M.,

Dover police were investigating a single vehicle collision near the Dover

Country Club Apartments. The police officer who arrived on the scene

observed Walker pacing beside the crashed vehicle.                As the officer

approached him, Walker fled. During the ensuing foot chase, Walker ran to

the nearby apartment complex. The officer lost sight of Walker several

times before eventually apprehending him in the stairwell of Building B.

      (6)    Several hours later, an employee of the apartment complex

found a handgun behind a trash dumpster at Building F. The dumpster was

located along the path of the earlier foot chase. Using a metal trash picker,

the employee retrieved the weapon without touching it, put it in a bucket,

and returned to the management office. The manager called the Dover

police. Officer Nicolosi came to retrieve the weapon. She disarmed it, took

it back to the police station, and logged it into the police evidence locker.
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).


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Another officer later retrieved the gun from the evidence locker and

conducted forensic testing, which revealed a latent fingerprint on the

weapon. It was later established that the fingerprint came from Walker. At

trial, Officer Nicolosi identified the weapon as the one she retrieved from the

apartment. The gun, its magazine, and bullets were admitted into evidence

without objection.

         (7)     Walker’s first argument on appeal is that the State failed to

establish a sufficient chain of custody for the gun. Walker failed to raise any

objection to the admission of the gun at trial. Thus, we review his claim on

appeal for plain error.2 Plain error exists when the error complained of is

apparent on the face of the record and is so prejudicial to a defendant’s

substantial rights as to jeopardize the integrity and fairness of the trial.3

         (8)     Delaware Rule of Evidence 901(a) states that, “The requirement

of authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in

question is what its proponent claims.”4               The State may authenticate

evidence either by having a witness identify the item as that which was

actually involved in the crime or by establishing a chain of custody for the

2
    Guy v. State, 913 A.2d 558, 564 (Del. 2006).
3
    Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
4
    D.R.E. 901(a) (2016).


                                              4
item to ensure the identity and integrity of the evidence by tracing its

whereabouts.5          The authentication requirement is “lenient”6 and only

requires the State to eliminate the possibility of misidentification or

adulteration as a matter of reasonable probability.7

          (9)    In this case, the State presented evidence that the gun was found

by an employee of the apartment complex where Walker was arrested. The

employee stated that he did not touch the gun with his hands and that he

turned the gun over to the manager, who then called police. Officer Nicolosi

testified that she retrieved the gun from the manager. She made the weapon

safe by emptying the round in the chamber and removing the magazine. She

placed these items in a bag. Upon returning to the police station, she placed

the bag in an evidence locker. Another officer testified to retrieving the bag

from the evidence locker and conducting tests on the evidence.               Both

officers identified the gun at trial as the one that had been placed into and

retrieved from the police evidence locker. Under these circumstances, we

find no plain error in the admission of the gun into evidence at trial.

          (10) Walker’s second claim on appeal relates to Officer Nicolosi’s

testimony at trial that the gun she retrieved contained nine bullets (one in the

5
    Guinn v. State, 841 A.2d 1239, 1241 (Del. 2004).
6
    Whitfield v. State, 524 A.2d 13, 16 (Del. 1987).
7
    Tricoche v. State, 525 A.2d 151, 153 (Del. 1987).


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chamber and eight in the magazine), which were logged into the police

evidence locker along with the gun. Only eight bullets were admitted with

the gun into evidence at trial, however. Walker contends that the missing

bullet rendered both the gun and the fingerprint retrieved from the gun

inadmissible.

         (11) We disagree. Any discrepancies between the description of the

evidence logged into the police locker and the evidence admitted at trial

goes to the weight to be afforded to the evidence and not to its

admissibility.8 In this case, there was sufficient evidence for the judge,

sitting as the trier of fact, to conclude beyond a reasonable doubt that the gun

found within hours after Walker’s flight from the police, containing his

fingerprint, had been recently possessed by Walker and that Walker, because

of his prior record, was a person prohibited from possessing a gun.

         (12) 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 the law and has properly

determined that Walker could not raise a meritorious claim in this appeal.




8
    Demby v. State, 695 A.2d 1127, 1132 (Del. 1997).


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      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/ James T. Vaughn, Jr.
                                        Justice




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