fN Tl-IE SUPREME COURT OF THE S'I`ATE OF DELAWARE

MARQUESE olvENs, §
§ No. 309, 2016
Det`endant Below- §
Appellant, §
§
v_ .' Court Below_Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID 1508006714 (N)
Plaintiff Below- §
Appellee. §

Submitted: March 16, 2017
Decided: June 6, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices.
0 R D E R

This 6"‘ day of June 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:

(l) In January 2016, a Superior Court jury convicted the appellant,
Marquese Givens, of Possession of a Firearm by a Person Prohibited and
Possession of Ammunition by a Person Prohibited. After denying his post-
trial motion t`or a judgment of acquittal, the Superior Court sentenced Givens
to a total period of twenty-three years at Level V incarceration to be
suspended after serving five years in prison for decreasing levels of

supervision This is Givens’ direct appeal.

(2) Givens’ counsel on appeal has filed a brief and a motion to
withdraw under Rule 26(c). Givens’ counsel asserts that, based upon a
complete and careful examination of the record, there are no arguably
appealable issues. By letter, Givens’ attorney informed him of the
provisions of Rule 26(c) and provided Givens with a copy of the motion to
withdraw and the accompanying brief. Givens also was informed of his
right to supplement his attorney’s presentation

(3) Givens has raised four claims for the Court to consider. First,
he contends that the trial court erred in allowing the State, during its rebuttal
presentation, to introduce the out-of-court statement of a previously-excused
defense witness. Second, he contends that the trial court erred in denying his
post-trial motion for a judgment of acquittal Third, he contends that the
prosecutor engaged in multiple instances of misconduct Finally, he argues
that the trial judge engaged in misconduct

(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
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 presentationl

(5) The State’s case-in-chief at trial was presented primarily
through the testimony of the arresting police officer, Corporal Danny Silva.
Silva testified that, on the evening of August 8, 2015, Wilmington police
were dispatched to Third and North Franklin Streets in the City of
Wilmington. Silva and his partner arrived in their patrol vehicle. Other
officers were already on the scene tending to a man with a head wound.
Silva observed a distraught woman walking up and down the sidewalk,
yelling at people on the opposite side of the street. As he approached the
woman, she immediately pointed to a parked car across the street and told
Silva that there was a gun in the car.2 Silva shined his flashlight into the car
and saw part of a gun sticking out from under the driver’s seat.

(6) Silva checked the vehicle’s registration and learned that it
belonged to Givens, whose registered address was not in the neighborhood

After asking a large group of people nearby if anybody owned the car and

 

' Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court oprpeals oj`Wisconsin, 486
U.S. 429, 442 (1988); Anders \’. Calt`fornia, 386 U.S. 738, 744 (1967).

2 The State called the woman as a witness at trial. She testified that she had been drunk
that night and did not recall much other than fighting with the father of her child and
some other unidentified people who tried to intervene in their argument. She testified
that she did not recall ever speaking to Silva1 although she did recall seeing a man in the
driver’s seat of a parked car near where Silva had testified that Givens’ car had been
parked. She could not offer any details about the car or the person in the driver’s seat.

receiving no answer, Silva called for a tow truck, While he and his partner
waited for the .tow truck, Silva testified that he was approached by a man,
Givens, who asked what they were doing with his car. Silva testified that he
asked Givens if he knew what was in the car and Givens immediately
responded, “there’s a gun.” Silva testified that, after making that statement,
he patted Givens down and read him his Mimnda rights. Silva testified that
Givens told him that the gun belonged to his girlfriend He further testified
that Givens told him that he had driven to the area with his girlfriend and,
upon their arrival, Givens was involved in an altercation and his girlfriend
had removed the gun from the car and was waving it in the air. When Silva
asked Givens for his girlfriend’s name, Givens refused to answer and
stopped cooperating

(7) Silva’s partner also testified at trial. He confirmed Silva’s
testimony that Givens told Silva that he had driven to that location, that he
knew there was a gun in the car, and that the gun belonged to his girlfriend.
Silva’s partner also confirmed that Silva patted Givens down and read him
his Miranda rights. After the car was towed to a police lot, Silva obtained a
search warrant. Other officers searched Givens’ car and retrieved the gun.
Testing on the gun revealed that it was fully loaded. There were no

fingerprints recovered from the gun.

(8) The defense called three witnesses, who were two of Givens’
friends and his girlfriend, Starasia Gregory.~" All three testified that they and
Givens had carpooled together that morning in the female friend’s car to a
local park. After spending several hours there, the two couples then went
together in the afternoon to a friend’s child’s birthday party. While at the
party, Givens received a call about a family matter that required him to pick
up his young nephew at the police station. The female friend drove Givens
and dropped him off at the station. She went back to the party and picked up
the other two and returned to the male friend’s house at Third and Franklin
Streets. Givens walked from the police station and met them there.

(9) While they were inside playing cards, they heard a commotion
in the street and went outside to see what was happening When they saw
officers looking at Givens’ car, the four of them approached the vehicle.
Once Givens’ identified the vehicle as his, the officers immediately put
Givens in handcuffs and did not read him Miranda rights. All three denied
hearing Givens tell Silva that he had been driving the car and that he knew
there was a gun it.

(10) Gregory further testified that Givens had not driven at all that

day. She stated that after returning from the birthday party to Third and

 

3 The Superior Court appointed counsel to represent Gregory. Gregory testified against
the advice of her appointed counsel.

Franklin Streets, while Givens was dealing with his family situation, she
drove the car back to her apartment to get money for dinner. While she was
in the apartment, she retrieved the gun from its lockbox with the intention of
taking it to a fi'iend later who was going to show her how to clean it and fix
the sights. She put the gun under the seat. She did not tell Givens that the
gun was in the car when she saw him later that night.

(l l) Givens also testified at trial.4 I-ie testified that he had not driven
his car at all that day and that he never told Silva that he had been driving.
He denied telling Silva that he had been involved in an altercation or that
Gregory had been waving a gun in the air. He testified that he knew
Gregory owned a gun, but he had no idea that she had put it in his car. l-Ie
iiirther denied that Silva had read him his Miranda rights.

(12) After the defense rested, the State recalled Gregory to question
her about a prior out-of-court statement that she had made to an investigator
from the Attorney General’s office. After consulting with her appointed
counsel, Gregory agreed to testify on rebuttal without a subpoena. Over
defense counsel’s objection, a taped recording of Gregory’s telephone
conversation with the investigator was played for the jury. During the

conversation, Gregory told the investigator that Givens had been driving the

 

4 Givens acknowledged on the stand that he was a convicted felon.

car earlier in the day. She also told the investigator, however, that she had
driven the car later, without Givens, and had put the gun in the car at that
time without his knowledge On the stand, Gregory testified that she had
been trying to deal with her daughter while she was on the phone with the
investigator and that she was simply incorrect when she said that Givens had
driven the car.

(13) The jury convicted Givens of possession of a firearm and
possession of ammunition by a person prohibited Givens filed a post-trial
motion for a judgment of acquittal, which the Superior Court denied After
sentencing, Givens filed this appeal.

(l4) Givens’ first point on appeal is that the Superior Court erred in
allowing Gregory’s out-of-court statement into evidence According to
Givens, Gregory’s statement was inadmissible under ll De[. C. § 3507
because the State failed to introduce it before the conclusion of Gregory’s
direct examination and because the State failed to establish that the
statement was voluntary. Although the State addresses and rejects the merits
of Givens’ § 3507 claim in its motion to affirm, we do not need to analyze
this claim on appeal. The trial record reflects that the prosecutor did not
offer Gregory’s out-of-court statement as independent, substantive evidence

under § 3507, but instead offered it under Delaware Rule of Evidence 613

solely to impeach Gregory’s testimony that Givens’ had not driven his car at
any time on August 8, 2015.5 Gregory was given the opportunity to explain
her prior inconsistent statement, and defense counsel was permitted to
question her about the statement6 Under the circumstances, we find no
error in the Superior Court’s admission of Gregory’s statement into
evidence.

(15) Givens next contends that the Superior Court erred in denying
his post-trial motion for a judgment of acquittal because there was
insufficient evidence to prove Givens had constructive possession of the gun
found under the driver’s seat of his car. This Court reviews the denial of a
motion for a judgment of acquittal de novo to determine whether any
rational trier of fact, viewing the evidence in the light most favorable to the
State, could find the defendant guilty beyond a reasonable doubt.7 In order
to prove constructive possession of a gun by a person prohibited, the State is
required to prove that the defendant: (i) knew the location of the gun; (ii)
had the ability to exercise dominion and control over the gun; and (iii)

intended to exercise dominion and control over the gun either directly or

 

5 See W_vche v. State, 3 A.2d 257, 262 (Del. 2010)

" see Del. R. Evid. 613(b).
t Pm-do v. smie, _ A.3d _, 2017 wL 1491334, *9 (Del. Apr. 26, 2017).

through another person.8 Constructive possession does not require the State
to prove that the gun was accessible at the specific time of the arrest,`) and
circumstantial evidence may be sufficient to meet the State’s burden of
proof`.‘°

(16) Viewing the evidence in the light most favorable to the State,
we find no error in the Superior Court’s denial of Givens’ motion for a
judgment of acquittal In this case, Silva testified that Givens told him that
he owned the car, had driven the car to his friend’s neighborhood, and knew
that there was a gun in the car, which was found under the driver’s seat.
Although the defense presented witnesses to rebut Silva’s testimony, it was
the jury’s responsibility to assess the credibility of the witnesses, to resolve
any conflicts in the testimony, and to draw any inferences from the proven

‘ We conclude that a rational trier of fact could find that Givens had

facts.'
the ability and the intent to exercise dominion and control over the loaded
gun that was found under the driver’s seat of his car.';' We find no merit to

Givens’ second claim on appeal.

 

8 Eley v. State, 2010 WL 5395787, *3 (Del. Dec. 28, 2010); Lecarcs v. Sta!e, 987 A.Zd
413, 426 (Del. 2009).

9 Lecates v. State, 987 A.2d at 421.

"’ ld. at 426.

" Poon t»_ smie, ssa A.2d 236, 233([)¢1. 2005).
12 tamm v. srare, 937 A.sd 413, 426 (Del. 2009).

(17) Givens next contends that the prosecutor engaged in multiple
instances of misconduct He contends that the prosecutor threatened several
times to reindict him, adding weapon and assault charges to the new
indictment Givens, however, points to nothing in the record to support this
claim as a factual matter. Moreover, as a legal matter, he does not cite to
any authority to support his claim that the alleged statements were improper.
ln fact, Givens was not reindicted We find no basis to consider this
unsubstantiated claim further.

(18) Givens also contends that the prosecutor’s closing and rebuttal
arguments reflected misconduct because the prosecutor did not point to any
evidence to reflect Givens’ intention to exercise control over the gun in his
car and because the prosecutor mischaracterized the evidence when he
argued that Givens stated “that is my gun.” Neither of these claims was

3 Plain error exists

raised below. Thus, we review for plain error only.l
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.14 The burden of persuasion is on the defendant to

show prejudice15

 

'3 Del. Supr. Ct. R. 8.
"' Waimw'ight v. Sta!e, 504 A.?_d 1096, l 100 (Del. 1986).
15 alarm v. Sm:e, 897 A.2d 748, 753 (Del. 2006).

10

(19) We find no plain error in this case. ln its instructions, the
Superior Court properly informed the jurors that they were the sole triers of
the facts and that the statements made by counsel in their opening and
closing arguments were not evidence. To the extent the jurors’ recollection
of the testimony at trial disagreed with anything said by the lawyers, the
Superior Court instructed the jurors to be guided entirely by their own
recollection Under the circumstances, even assuming that the prosecutor
misstated Givens’ testimony, we find no plain error requiring reversal on
appeal

(20) Givens final claim on appeal is that the trial judge engaged in
misconduct by: (i) admitting Gregory’s statement under ll De[. C. § 3507;
(ii) by making a pretrial request for a summary of the anticipated evidence;
(iii) by failing, sua sponte, to conduct an evidentiary hearing on Givens’
waiver of his Miranda rights; and (iv) by failing, sua sponre, to poll the jury
after Givens alleged at the end of trial that Silva may have mouthed
something to the jury.

(21) ln order to prevail on a claim of judicial misconduct a
defendant must show that the trial judge’s actions during the course of` trial

created “a pervasive climate of partiality and unfairness” that “could have

ll

led the jury to a predisposition of guilt.”16 Givens’ contentions reflect
nothing more than his disagreement with the trial judge’s rulings or alleged
failures to take action sua sponte. Givens’ does not allege “a pervasive
climate of partiality and unfairness” by the trial judge sufficient to meet the
stringent standard for reversing a verdict due to judicial misconduct.'7 We
thus reject Givens’ final claim on appeal.

(22) The Court has reviewed the record carefully and has concluded
that Givens’ appeal is wholly without merit and devoid of any arguably
appealable issue. We also are satisfied that Givens’ counsel has made a
conscientious effort to examine the record and the law and has properly
determined that Givens 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 T E COURT:

 

 

"’ Wrrlmms v. srme, 1997 wL 560394, ar2(1_')@1. sept 2, 1997)
17
rd.

12

