IN THE SUPREME COURT OF TI'IE STATE OF DELAWARE

HAROLD R. EDWARDS, §
§ No. 32, 2016
Defendant Below, §
Appellant, § Court Below_Superior Court of the
§ State of Delaware
v. §
§ Cr. ID No. 1405 02363 6
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: November 28, 2016
Decided: February 27, 2017

Before STRINE, ChiefJustice; HOLLAND and VAL]HURA, Justices.
0 R D E R

This 27th day of February 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) ln August 2014, Harold R. Edwards was indicted for two counts of
Robbery in the First Degree and three counts of Shoplifcing. ln 2015, a Superior
Court jury found Edwards guilty of all five counts. The Superior Court sentenced
Edwards to a total of fifteen years of unsuspendecl Level V incarceration followed

by one year of Level III probation.1 This is Edwards’ direct appeal.

 

' ln the same sentencing proceeding, Edwards also was sentenced to two years of incarceration in
an unrelated case, Cr. ID No. 1405024210. Edwards‘ conviction in that case is not a part of this
appeal.

(2) On appeal, Edwards' trial counsel has filed a rio-merit brief and a
motion to withdraw under Suprerne Court Rule 26(0). Counsel asserts that, based
upon a complete and careful examination of the record, there are no arguably
appealable issues. Counsel provided Edwards with a copy of the motion to withdraw
and the no-merit brief in draft form and advised Edwards that he could submit
written points for the Court’s consideration Edwards’ written points are included
in the brief filed with the Court. The State has filed a response to Edwards’ points
and has moved to affirm the Superior Court’s judgment

(3) When reviewing a motion to withdraw and 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." 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.”3 In this case,
having conducted “a full examination of all the proceedings“ and found “no
nonfrivolous issue for appeal,”4 the Court is satisfied that Edwards’ counsel made a
conscientious effort to examine the record and the law and properly determined that

Edwards could not raise a meritorious claim on appeal.

 

2 Penson v. Ohio, 488 U.S. 75, 83 (1988); McC'oy v. Cour! oprpeals ofWiscansin, 486 U.S. 429,
442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).

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

“ Id. at so.

(4) The indictment against Edwards arose from a series of thefts from
Wawa convenience stores and an Exxon gas/convenience store in April and May
2014. All of the stores were located on Philadelphia Pike in or near Wilmington.
And in all of the thefts, Edwards stole only cartons of Newport 1005 cigarettes
Identity was not an issue at trial. Edwards admitted that he was guilty of shoplifting
in all five incidents His defense strategy focused on challenging the two counts of
first degree robbery.

(5) The first three incidents led to the shoplifting charges. In those
incidents, as could be seen from the store surveillance videos played at trial, Edwards
simply grabbed the cigarette cartons from the checkout counter and walked out of
the store without paying for them.

(6) The fourth and fifth incidents led to the robbery charges. In the fourth
incident, which was at a Wawa, Edwards allegedly had a knife and threatened the
store clerk. In the fifth incident, which was at the Exxon, the store manager was
injured. The store surveillance video from the Exxon incident was misplaced prior
to trial.

(7) At trial, witnesses testified that Edwards got into a physical altercation
with the Exxon store manager as the manager was trying to keep Edwards nom
leaving the store with the cigarettesl Three witnesses also testified that, when

struggling to leave the store with the cigarettes, Edwards took the lid off of an

3

outdoor ashtray stand and swung it at the manager and a store employee who were
trying to restrain him. Although the three witnesses were interviewed at the scene
by the police officer who wrote the police report, the police report made no mention
of the ashtray, and at trial, the police officer testified that he had no memory of the
witnesses telling him that Edwards swung an ashtray lid at the store manager and
employee. The police officer testified that he “possibly, most probably” took notes
when interviewing the witnesses, but that he had discarded the notepad and no longer
had the notes.5

(8) Edwards has raised the following claims on appeal: (1) the Exxon
robbery charge should have been tried separately from the other charges; (2) the jury
instructions did not sufficiently inform the jury ofthe meaning of the term “physical
injury”; (3) the State failed to preserve potentially exculpatory evidence; (4) the
evidence at trial was conflicting and insufficient; and (5) there were errors in the jury
selection process.

(9) Edwards contends that the robbery charge associated with the Exxon
incident should have been severed and tried separately from the other robbery and

the shoplifting charges associated with the Wawa incidents Edwards did not file a

 

5 Trial Tr. at 169-70 (May 19, 2015).

motion to sever in the Superior Court. Consequently, our review of the claim is
limited to plain error.6

(10) Under the plain error standard of review, the error complained of must
be so prejudicial to substantial rights as tojeopardize the fairness and integrity of the
trial process."' Plain error is a material defect apparent on the face of the record,
basic, serious and fundamental in character, and that deprives an accused of a
substantial right or manifests injustice8

(11) Superior Coln't Criminal Rule 8 permits two or more offenses to be
charged in the same indictment “if the offenses charged are of the same or similar
character or are based on the same act or transaction or on two or more acts of
transactions connected together or constituting parts of a common scheme or plan.”9
In Edwards’ case, it was appropriate to indict all five charges together as part of a
common scheme or plan. When allegedly robbing the Exxon on May 27, 2014,
Edwards attempted to steal cartons of Newport lOOs cigarettes, the same things he
had stolen fi'om the nearby Wawas on April 20 and 21, 2014, and May 24, 2014.
The month-long lapse of time between the first incident and the last incident, and

the fact that one incident took place at an Exxon and the other incidents occurred at

 

5 Del. Supr. Ct. R. 8. Wainwright v. St'ate, 504 A.2d 1096, 1100 (Del. 1986).
7 Wainwrigh!, 504 A.2d at llOO.

8 rd.

9 Del. Super. Ct. Crirn. R. S(a).

Wawas, did not require severance and a separate trial on the Exxon robbery charge '°
Moreover, Edwards’ trial counsel made a tactical decision to use the Wawa
shoplifting charges to argue that Edwards had merely been shoplifting from the
Exxon, not robbing it.ll Under all of these circumstances, Edwards cannot show
plain error from having been tried on the Exxon robbery charge with the other
charges.12

(12) Edwards contends that the jury instructions did not sufficiently inform
the jury of the meaning of the term “physical injury.” Edwards did not raise the
claim in the Superior Court. We have reviewed the claim for plain error and found
none. The Trial Judge instructed the jury that “[p]hysical injury means impairment
of physical condition or substantial pain,”13 as the term is defined in the Delaware
Criminal Code.14

(13) In his third claim, Edwards contends that the State failed to preserve the

Exxon surveillance video and the police officer’s interview notes as discoverable

 

m Skinner v. Srate, 575 A.2d 1108, 1118 (Del. 1990).

l' See Johnsan v. Stafe, 983 A.2d 904, 923 (Del. 2009) (“[P]lain error is predicated upon oversight,

as opposed to a tactical decision, of counsel.").

12 To the extent Edwards claims that his trial counsel‘s failure to seek severance was ineffective

representation, the claim is unavailing This Court will not entertain an ineffective assistance of

counsel claim on appeal if the Superior Court did not consider the claim in the first instance.

Desmond v. Srate, 654 A.2d 821, 829 (Del. 1994).

13 rria1 Tr. ar 142 (May 21, 2015).

14 See ll Del. C. § 222(23) (Supp. 2017) (delining “physical injury” in list of general detinitions).
6

evidence, Edwards did not raise the issue of the police officer’s notes in the Superior
Court. We have reviewed that part of the claim for plain error.

(14) The State is obligated to preserve evidence that is material to a
defendant’s guilt or innocence.15 Evidence is material if there is a reasonable
probability that it would have changed the outcome of the proceeding.16 When there
has been a failure to preserve evidence material to a defendant’s guilt or innocence,
the Superior Court will consider to what extent the failure to preserve is prejudicial
to the defendant17 If circumstances warrant it, the court will instruct the jury that
the defendant is entitled to an inference that the missing evidence would have been
exculpatory.13

(15) The record does not reflect that Edwards was prejudiced by the State’s
failure to preserve the police officer’s notes. Assuming that the notes were
discoverable evidence, the notes were not material to Edwards’ guilt or innocence
The evidence at trial included the police report, which made no mention of the
ashtray lid., as well as the police officer’s trial testimony that he had no recollection

of the witnesses telling him about the lid. Under these circumstances, assuming that

 

'5 Thoma.s' v. State, 2015 WL 9265084, at **3 (Del. Dec. 17, 2015) (citing Deberry v. State, 457
A.2d 744, 754 (Del. 1983)).
16 Uniredsrares v. aagley, 473 U.s. 667, 682 (1935).
" Caldwell v. State, 2004 W'L 2937673, at *2 (Del. Dec. 17, 2004) (citing Hammond v. State, 569
Q.2d 81, 87-90 (Del. 1990)).

l Id.

the notes were exculpatory, the notes would have added little to Edwards’ defense.
Also, where there is no indication that the notes were destroyed in bad faith or that
there was insufficient evidence to support the jury verdict, the record does not reflect
that Edwards was prejudiced by the absence of a missing evidence jury instruction19

(16) As for the missing Exxon surveillance video, the State acknowledged
at trial that it failed to preserve the video. The Trial Judge instructed the jury as
follows:

In this case, the Court has determined that the State failed to
collect and preserve certain evidence that is material to the defense;
namely, the security surveillance video of the incident alleged to have
occurred at the Exxon Gas Station on Philadelphia Pike on May 27,
2014. The failure of the State to collect and preserve this evidence
entitles Mr. Edwards to an inference that if such evidence were
available at trial it would be exculpatory That means that for purposes
of deciding this case you are to assume that the missing evidence, had
it been collected and preserved, would not have incriminated Mr.
Edwards and would have tended to prove Mr. Edwards not guilty.20

The missing evidence jury instruction was appropriate Edwards has not identified,
and the record does not reflect, that he is entitled to firrther relief as a result of the

misplaced video.

 

'9 See Wm'ner v. State, 2005 WL 535010, at *3 (Del. Feb. 15, 2005) (“At most, [the defendant] has
shown that the destruction of the [police officer’s] notes was negligent, but he has not shown bad
faith, prejudice, or insufficient evidence, Accordingly, the Superior Court properly denied [the
defendant’s] request for a missing evidence instruction.”).

1“ Triar Tr. ar 155-56 (May 21, 2015).

8

(17) Edwards challenges the sufficiency of the evidence, He contends that
the witnesses’ testimony was conflicting and that the evidence did not establish that
the Exxon store manager incurred a “physical injury” as that term is used in the
statute governing robbery in the irst degree.

(18) At the close of the State’s case in chief`, Edwards’ trial counsel
challenged the sufficiency of the evidence in “a general motion for judgment of
acquittal with respect to all charges.”21 The Trial Judge denied the motion as

follows:

I will generally deny [the acquittal motion] with the appropriate
standard when viewing the evidence and all reasonable inferences from
the evidence in the light most favorable to the State could a rationaljury
find the defendant guilty here? Clearly, I think that’s the case,
obviously with the shopliftings, because you’ve admitted them.

And with respect to the testimony today and Count l, about that
robbery, we have the testimony of [the Wawa store clerk] that he saw a
knife, that there was a threat to kill him, and connected with the taking
of the cigarettes, those are the elements of robbery first degree.

Viewed in the light most favorable to the State with respect to
the testimony about the companion robbery charge, we had the
testimony of [the Exxon store manager] that there was an attempt to
steal a case of cigarettes, and during that struggle an attempt to
overcome the resistance of the taking of property, [the store manager]
got injured; hands, elbows, knee was bleeding, so I think in light of all
that, a reasonable_well, in light of that evidence taken in the light most
favorable to the State, certainly a reasonable juror could fmd defendant
guilty of that charge, as well, so l’m going to deny that motion.22

 

2'1¢1. ar 71.
22 Id. at 77_78.

(19) This Court reviews the denial of a motion for 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.”23 Review of the jury’s factual findings is deferential. 24 The jury is the sole
trier of fact responsible for determining witness credibility, resolving any conflicts
in the testimony, and drawing all reasonable inferences ii'om the proven facts.25

(20) To convict Edwards of first degree robbery in the Exxon incident, the
State was required to prove that, in the course of committing theft or immediate
flight therefrom, Edwards used or threatened the use of immediate force upon
another person with intent to prevent or overcome resistance to the taking of the
property or to the retention thereof immediately after the taking and that Edwards
caused physical injury to a person who was not a participant in the crime.25 As
previously noted, physical injury is defined as “impairment of physical condition or
substantial pain.”z" The Court has held that “pain and bruising can be sufficient to

establish impairment of physical condition giving rise to physical injury.1128 Also,

 

23 Robertson v. State, 596 A.2d 1345, 1355 (Del. 1991).

24 Morgcm v. State, 922 A.2d 395, 400 (Del. 2007).

25 ]d_

16 See 11 Del. C. § ssz(a)(i) (supp. 2017) (goveming robbery in the first degree).
27 Supra note 13.

28 Mercer v. State, 2009 WL 4164765, at *3 (Del. NOV. 25, 2009).

10

the Court has held that a victim’s testimony alone is sufficient to establish physical
injury.29

(21) In this case, the store manager and other witnesses to the Exxon incident
testified that the manager was injured as he was attempting to keep Edwards from
leaving the store with the stolen cigarettes, The manager and the witnesses testified
that the manager suffered scratches on his hands from which he was bleeding, and
that his knees and arm were hurt. EMS treated the manager at the scene, and the
manager went to the hospital for treatment. Under de novo review, the Court
concludes that the evidence at trial was sufficient for the jury to find, beyond a
reasonable doubt, that the Exxon manager incurred a “physical injury“ as that term
is used in the first degree robbery statute.30 Edwards’ claim to the contrary is without
merit.

(22) In his final claim on appeal, Edwards contends that the jury selection
process in his case was flawed because the jury pool was not sufficiently diverse.31

Relying on a document he submitted with his written points, Edwards contends that

 

29 Williamson v. State, 113 A.3d 155, 159 (Del. 2015).

30 See supra note 25.

3' The United States Supreme Court has held that the jury venire nom which a jury is selected
must represent a fair cross-section of the community. Duren v. Mi.rsouri, 439 U.S. 357, 363-64
(1979).

ll

there were only five blacks in the jury pool.32 Edwards further contends that the
State used its peremptory challenges to strike black jurors.3~”

(23) In his two-part jury diversity claim, Edwards is required to make a
prima facie showing of an inii'ingement of the fair cross-section requirement34 and
that the State used its peremptory challenges on the basis of race.35 Edwards did not
raise either part of the claim in the Superior Court. ln the absence of the Superior
Court’s consideration of the claim, the Court declines to consider the claim on

appeal.“’

 

32 Edwards submitted a non-record “juror proHle” document listing a pool of twenty-eight jurors
in his case, of which nve (18%) were identified as black. According to Edwards, the document
demonstrates that the jury pool did not represent a fair cross-section of blacks, which he says is
estimated to be 21% of the voting population in Delaware, as reflected in another non-record
document submitted by Edwards, i.e., a chart depicting the race profiles of the voting age
population in Delaware in 2015. In response to Edwards’ submission, the State contends that
Edwards’ juror profile document relates to a smaller jury pool from which additional alternates
were selected in his case,

33 The United States Supreme Court has held that “a prosecutor may exercise peremptory
challenges for any reason at all, ‘as long as that reason is related to [the prosecutor’s] view
concerning the outcome of the case to be tried’ and not based ‘solely on account of the juror's race
or on the assumption that blackjurors as a group will be unable impartially to consider the State's
case against a black defendant.’" Guy v. State, 999 A.2d 863, 868 (Del. 2010) (quoting Bat.ron v.
Kentucky, 476 U.S. 79, 89 (1986)).

34 BIoimt v. State, 511 A.2d 1030, 1037 (Del. 1986) (citing Duren v. Missouri, 439 U.S. 357, 364
(1979)).

35 Rober!son v. State, 630 A.2d 1084, 1089 (Del. 1993) (citing Batson v. Kem’ucky, 476 U.S. 79,
96 (1986)).

36 Dei. supr. Cr. R. s.

12

NOW, TI-IEREFOR.E, IT IS ORDERED that the motion to affirm is
GRANTED. The judgment of the Superior Court is AFFIR]V[ED. The motion to

withdraw is moot.

 

BY THE COU`RT:
‘Y. .
Justice U l

13

