            IN THE SUPREME COURT OF THE STATE OF DELAWARE

VERNON CEPHAS,                              §
                                            §      No. 12, 2017
       Defendant Below,                     §
       Appellant,                           §      Court Below—Superior Court of the
                                            §      State of Delaware
       v.                                   §
                                            §      Cr. ID No. 1503005476 (K)
STATE OF DELAWARE,                          §
                                            §
       Plaintiff Below,                     §
       Appellee.                            §

                             Submitted: April 20, 2017
                             Decided:   July 18, 2017

Before STRINE, Chief Justice; VALIHURA and SEITZ, Justices.

                                         ORDER

       This 18th day of July 2017, upon consideration of 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 2015, the appellant, Vernon Cephas, was arrested for having

allegedly committed sexual offenses against his girlfriend’s seven-year old niece,

Theresa.1 Following his arrest, Cephas was indicted on charges of Rape First

Degree, Rape Second Degree, Sexual Solicitation of a Child, and Continuous Sexual

Abuse of a Child. Following a four–day jury trial in September 2016, Cephas was


1
 The Court has chosen a pseudonym to protect the identity of the complaining witness. Del. Supr.
Ct. R. 7(d).
convicted of four counts of Unlawful Sexual Contact First Degree (as lesser included

offenses of the first degree rape charges) and the other counts in the indictment.

After a presentence investigation, the Superior Court sentenced Cephas to a total of

seventy-nine unsuspended years of Level V imprisonment. This is Cephas’ direct

appeal.

       (2)    Cephas’ Appellate Counsel has filed a no-merit brief and a motion to

withdraw under Supreme Court Rule 26(c). Appellate Counsel asserts that, based

upon a complete and careful examination of the record, there are no arguably

appealable issues. Appellate Counsel provided Cephas with a copy of the motion to

withdraw and the no-merit brief in draft form and advised Cephas that he could

submit written points for the Court’s consideration. Cephas submitted written points

and he opposes the motion to withdraw. The State has filed a response to Cephas’

points and has moved to affirm the Superior Court’s judgment.

       (3)    When reviewing a motion to withdraw and accompanying brief under

Rule 26(c), the Court must be satisfied that the appellant’s counsel has made a

conscientious examination of the record and the law for arguable claims.2 The Court




2
 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
also 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.”3

         (4)     In this case, the record reflects that, near the end of February 2015,

Theresa told her mother that Cephas had been molesting her. Theresa’s mother

reported the alleged abuse to the child’s pediatrician on March 3, 2015. After talking

to Theresa and conducting a physical examination, the pediatrician referred Theresa

and her mother to the hospital, where Theresa was seen by a sexual assault nurse

examiner. On the 11th of the same month, Theresa was interviewed by a forensic

interviewer at the Child Advocacy Center. After the interview, Detective Mark

Csapo of the Delaware State Police applied for, and was granted, a warrant for

Cephas’ arrest.

         (5)     Later that day, the police arrested Cephas at his home. After knocking

on the door and receiving no response, the police were approached by a juvenile

male who allowed them into the home after telling the police that he lived there and

that Cephas was inside. When entering the residence, the police announced their

presence several times but received no response. The police found Cephas standing

in a bedroom closet that was partially closed.




3
    Penson v. Ohio, 488 U.S. at 82.


                                             3
         (6)     After Cephas was placed under arrest, he was taken to State Police

Troop 3 where he was given Miranda warnings by Detective Csapo.4 After the

warnings were given, Cephas indicated that he wanted to answer the Detective’s

questions. During the interrogation that followed, Cephas denied some of the

accusations, but admitted others.

         (7)     In July 2016, Defense Counsel filed a motion to suppress Cephas’

statement on the ground that Cephas’ waiver of Miranda rights was involuntary.

The Superior Court held an evidentiary hearing in early August and issued an order

denying the motion to suppress.5

         (8)     On the first day of trial in September 2016, Defense Counsel moved to

reopen the suppression motion to present grounds for suppression that were not

previously raised. The additional grounds for suppression were, first, that Cephas

had invoked his right to remain silent during the interrogation, and second, that there

were possible defects in the timing of the arrest warrant that could render his arrest

illegal.       The Superior Court denied the motion to reopen after finding “no

extraordinary circumstances or good cause” to consider grounds for suppression that




4
    Miranda v. Arizona, 384 U.S. 436 (1966).
5
    State v. Cephas, 2016 WL 4409550 (Del. Super. Aug. 16, 2016).


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Defense Counsel could have raised in the motion to suppress or at the evidentiary

hearing.6

       (9)     On appeal, Cephas claims that the Superior Court erred when denying

the motion to suppress and the motion to reopen the motion to suppress. Cephas

also claims that: (1) evidence should have been suppressed because of a defect in the

application for the arrest warrant; (2) there was insufficient evidence to support his

convictions; (3) there were errors in the jury instructions; (4) the prosecutor engaged

in improper vouching; (5) the Superior Court was biased; and (6) Defense Counsel

was ineffective. Because this is Cephas’ direct appeal, we will not consider the claim

of ineffective assistance of counsel.7 To the extent the claims were not fairly

presented in the Superior Court, our review is limited to plain error.8

       (10) In his first claim on appeal, Cephas argues that the Superior Court

should have suppressed his statement to the police on the ground that his waiver of

Miranda rights was involuntary. When determining the validity of a waiver of

Miranda rights, the Superior Court first must consider whether, under the totality of

the circumstances, the waiver was a free and deliberate choice, rather than one made




6
  Trial Tr. at A-11 (Sept. 7, 2016).
7
  Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
8
  Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986). Plain error is error “so clearly prejudicial
to substantial rights as to jeopardize the fairness and integrity of the trial process.” Id.


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under intimidation, coercion, or deception, and second, whether the waiver was

made with a full understanding of the nature of Miranda rights and the consequences

of abandoning them.9           Because the Superior Court’s determination of the

voluntariness of a Miranda waiver is typically based on case-specific factual

findings, this Court will not disturb the determination when there is sufficient

evidence in the record to support it.10 In this case, the Superior Court conducted a

thorough inquiry into Cephas’ waiver of Miranda rights—which was captured in a

video recording—and specifically addressed each of the grounds Cephas argued to

support his motion, before concluding that his statement was made voluntarily and

was not “forced or coerced by physical or psychological pressure.”11 Sufficient

evidence in the record supports the court’s findings and conclusions.

       (11) In his second claim on appeal, Cephas contends that the Superior Court

erred when denying the motion to reopen the motion to suppress. The claim is

without merit. The Superior Court properly determined that the motion to reopen

was, in effect, an attempt to seek reargument on the original motion to suppress, by

raising new arguments that should have, but were not, raised in his original timely




9
  Bennett v. State, 2010 WL 987025, *3 (Del. Mar. 18, 2010) (citing cases).
10
   Hanna v. State, 591 A.2d 158, 165 (Del. 1991) (citing Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973)).
11
   State v. Cephas, 2016 WL 4409550, *3.


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motion to suppress. Absent exceptional circumstances, the Superior Court is not

required to consider an untimely motion to suppress.12 On appeal, Cephas has not

demonstrated, and the record does not reflect, that exceptional circumstances

prevented Defense Counsel from raising all of the grounds for suppression in the

motion to suppress filed in July 2016. The Superior Court’s denial of the motion to

reopen was a proper exercise of the court’s broad discretion to enforce its rules of

procedure and pretrial orders.13 On appeal, Cephas also argues that his statement

should have been suppressed because he was arrested before the warrant issued. A

similar claim was raised in the motion to reopen, which was properly denied as

untimely. This Court will not consider the claim on appeal.

       (12) In his third claim on appeal, Cephas argues that his statement should

have been suppressed because of a deficiency in the application for the arrest

warrant. This argument was not raised below. On plain error review, the claim is

without merit. The record reflects that the Child Advocacy Center interview with

Theresa provided sufficient information to support an independent judgment that

there was probable cause for the warrant.14




12
   Small v. State, 2015 WL 71631, *3 (Del. Jan. 5, 2015).
13
   Miller v. State, 2010 WL 3328004, *2 (Del. Aug. 24, 2010).
14
   Thomas v. State, 467 A.2d 954, 956 (Del. 1983).


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       (13) Cephas’ fourth claim on appeal challenges the jury instructions. First,

Cephas argues that the jury instruction on “evasion of arrest” was not supported by

the evidence. The claim is without merit. When the argument was made at trial, the

Superior Court determined, and we agree, that the trial testimony was sufficient to

support a reasonable inference that Cephas concealed himself in the bedroom closet

because of consciousness of guilt and therefore a jury instruction on evasion of arrest

was warranted.15 Second, Cephas claims for the first time that the jury instruction

“for 3507 statement” was “inadequate.”16 Because he did not raise this vague

argument below, we review the record only for plain error. Under 11 Del. C. § 3507,

“the voluntary out-of-court prior statement of a witness who is present and subject

to cross-examination may be used as affirmative evidence with substantive

independent testimonial value.”17 In this case, the Superior Court properly admitted

Theresa’s videotaped Child Advocacy Center interview into evidence under § 3507

and properly instructed the jury members that they must “decide whether an out-of-

court statement is credible or believable and how much weight it should be given.”18




15
   Robertson v. State, 41 A.3d 406, 409 (Del. 2012).
16
   See 11 Del. C. § 3507 (governing use of prior statement as affirmative evidence).
17
   Id.
18
   Trial Tr. at D-20 (Sept. 13, 2016).


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Cephas has not demonstrated, and the record does not reflect, plain error in the

§ 3507 jury instruction.

       (14) In his fifth claim on appeal, Cephas contends that the prosecutor

engaged in improper vouching. “Improper vouching occurs when a prosecutor

implies that he or she has superior knowledge, beyond that logically inferable from

the evidence, that a witness has testified truthfully.”19 But, Cephas fails to identify

any statements in the record that support his claim of improper vouching. In fact,

the record reflects one instance when the Superior Court interrupted the direct

examination of Detective Csapo20 specifically out of concern that some of the

questions presented to him “should [might] have been reasonably expected to have

elicited potential vouching with regard to the truth or falsity of the defendant’s

statement.”21 The Trial Judge’s sua sponte interruption of the testimony was an

appropriate use of the court’s discretion and prevented the possibility of Detective

Csapo giving an impermissible opinion on the veracity of Cephas’ statement.22

       (15) In his sixth claim, Cephas argues that the lack of physical evidence

should have resulted in his acquittal at trial on the basis of insufficient evidence. In



19
   Quirico v. State, 2004 WL 220328, *4 (Del. Jan. 27, 2004) (citing Saunders v. State, 602 A.2d
623, 624 (Del. 1984)).
20
   Trial Tr. at C-88–89 (Sept. 12, 2016).
21
   Id. at C-113.
22
   Richardson v. State, 43 A.3d 906, 910 (Del. 2012).


                                               9
the absence of a motion for a directed verdict or judgment of acquittal below, we

review the claim for plain error.23 An alleged victim’s identification of the defendant

as the perpetrator, even in the absence of physical evidence linking the defendant to

the crime, constitutes sufficient evidence to support the defendant’s conviction of a

sexual crime as long as the alleged victim’s testimony establishes every element of

the offense charged.24 In this case, Theresa’s in-court testimony, out-of-court

statement, and Cephas’ partial confession were sufficient to establish the elements

of the offenses for which Cephas was convicted.

       (16) In his seventh and last claim on appeal, Cephas contends that the

Superior Court was biased against him because the Trial Judge did not appoint him

new counsel despite knowing of “the obvious disconnect” between Cephas and

Defense Counsel. Cephas offers no evidence to support his claim of judicial bias or

impartiality, and the record reveals no such bias. The record reflects that the Trial

Judge accommodated Cephas’ requests to continue the trial so that Cephas could

hire private counsel to replace Defense Counsel. Then, when Cephas was unable to

hire counsel, the Trial Judge continued the trial a third time to give Defense Counsel

time to prepare for trial. Also, during the suppression hearing, when Defense



23
   Bessicks v. State, 2017 WL 1383760, *2 (Del. April 13, 2017) (citing Swan v. State, 820 A.2d
342, 358 (Del. 2003)).
24
   Philhower v. State, 2016 WL 6407472, **2 (Del. Oct. 28, 2016).


                                              10
Counsel informed the Trial Judge that Cephas had written her a note saying that he

wanted to proceed pro se, the Trial Judge addressed Cephas’ concern and gave him

the option to proceed through the required colloquy. 25 Cephas chose to stay with

Defense Counsel.26

       (17) The Court conducted “a full examination of all the proceedings” in the

Superior Court and found “no nonfrivolous issue for appeal.”27 Also, we are

satisfied that Appellate Counsel made a conscientious effort to examine the record

and the law and properly determined that Cephas could not raise a meritorious claim

on 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 THE COURT:
                                       /s/ Leo E. Strine, Jr.
                                       Chief Justice




25
   Hr’g Tr. at 12–13 (Aug. 4, 2016).
26
   Id. at 13.
27
   Penson v. Ohio, 488 U.S. at 80.


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