     IN THE SUPREME COURT OF THE STATE OF DELAWARE

JESSIE THOMAS,                         §
                                       §      No. 501, 2014
      Defendant Below,                 §
      Appellant,                       §      Court Below–Superior Court
                                       §      of the State of Delaware in
      v.                               §      and for New Castle County
                                       §
STATE OF DELAWARE,                     §      Cr. ID No. 1304013732
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                          Submitted: February 11, 2015
                          Decided:   May 8, 2015

Before HOLLAND, VALIHURA and VAUGHN, Justices.

                                 ORDER

      This 8th day of May 2015, upon consideration of the appellant’s brief

filed pursuant to Supreme Court Rule 26(c), his attorney’s motion to

withdraw, and the State’s response, it appears to the Court that:

      (1)    In May 2013, the appellant, Jessie Thomas, was indicted on two

counts of Possession of a Firearm by a Person Prohibited (“PFBPP”), two

counts of Carrying a Concealed Deadly Weapon (“CCDW”), and one count

of Possession of Ammunition by a Person Prohibited (“PABPP”).               At

Thomas’ jury trial in February 2014, the parties stipulated that Thomas was

a person prohibited from possessing a firearm and ammunition.
          (2)    The jury convicted Thomas of one count each of PFBPP and

CCDW and the single count of PABPP and acquitted him on the remaining

counts. On August 28, 2014, the Superior Court sentenced Thomas to a total

of twenty-one years at Level V imprisonment, suspended after seven years

for decreasing levels of supervision. This is Thomas’ direct appeal.

          (3)    On appeal, Thomas’ appellate counsel (“Counsel”) has filed a

brief and a motion to withdraw under Supreme Court Rule 26(c) (“Rule

26(c)”).1       Counsel asserts that, based upon a complete and careful

examination of the record, there are no arguably appealable issues. Thomas,

through Counsel, has submitted six claims for the Court’s consideration. In

its response, the State has moved to affirm the Superior Court’s judgment.

          (4)    When reviewing a motion to withdraw and an accompanying

brief under Rule 26(c), this Court must be satisfied that the appellant’s

counsel has made a conscientious examination of the record and the law for

arguable claims.2 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


1
    Thomas was represented by different counsel at trial.
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).
3
    Penson v. Ohio, 488 U.S. at 81.
                                              2
      (5)    In this case, the probable cause affidavit in the Superior Court

record reflects that, during the evening of April 15, 2013, Wilmington Police

Officer Anthony Easterling received a confidential tip that a black male

known as “Black Nose” had just pointed a firearm at another black male

known as “Ike.” The confidential informant told Officer Easterling that the

location of the disturbance was Sixth and Jefferson Streets, and that Black

Nose was dressed in a gray jacket and blue jeans and driving a white Volvo.

      (6)    Officer Easterling relayed the confidential tip to Detective

Robert Fox. At approximately 8:50 p.m., Detective Fox radioed the tip to

Officer Matthew Geiser and Corporal Justin Cannon (collectively “Geiser

and Cannon”), who were on patrol in the area. When driving the short

distance to Sixth and Jefferson Streets, Geiser and Cannon were contacted

by Detective Steven Barnes, who advised that he knew Black Nose as Jessie

Thomas.

      (7)    Upon arriving at Sixth and Jefferson Streets, Geiser and

Cannon observed a white Volvo station wagon parked on the west side of

Jefferson Street. Although the Volvo’s side and back windows were heavily

tinted, Geiser and Cannon could see through the front windshield that a

black male wearing a gray jacket was sitting in the driver’s seat.



                                       3
          (8)     After circling the block, Geiser and Cannon followed the

Volvo, as it had started travelling north on Jefferson Street. In the 800 block

of Jefferson Street, after observing the Volvo pull to the side of the road

without signaling, Geiser and Cannon activated the patrol vehicle’s

emergency equipment and initiated a vehicle stop.

          (9)     Officer Geiser made contact with the driver while Corporal

Cannon remained in the patrol vehicle to call in the stop. When approaching

the driver’s side of the Volvo, Officer Geiser could see that the driver was

sitting in the driver’s seat with his hand out of the window. Officer Geiser

advised the driver that he could not see into the Volvo due to the heavy

window tinting, and he asked the driver to keep his hands in plain sight.

When the driver abruptly moved his hands into his lap, Officer Geiser pulled

his service weapon and directed the driver to get out of the car. At trial,

Officer Geiser testified that he drew his weapon because he could not see

what the driver was doing and he “was too close to the car to retreat in case

[the driver] had something.”4 Once the driver was outside of the car, Officer

Geiser moved the driver to the rear bumper area where another officer patted

him down. While this was happening, Officer Joseph Lucyk, who had

arrived as back up, checked the Volvo for passengers.

4
    Trial tr. at 15 (Feb. 26, 2014).
                                        4
          (10) At trial, Officer Lucyk testified that, from where he stood

outside the still-open door of the Volvo, he could see the barrel of a gun

protruding from underneath the driver’s seat. Officer Lucyk immediately

alerted the other officers that the driver should be taken into custody. At that

point, the driver, Thomas, was placed under arrest, and Officer Lucyk left

the scene to respond to another call. At trial, Officer Lucyk estimated that

he was at the scene a total of “three to six minutes.”5

          (11) After Thomas was arrested and secured in Geiser and Cannon’s

patrol vehicle, Officer Geiser drove him to the police station. Corporal

Cannon drove the Volvo to the police station and secured it in the staff

garage.          Later that evening, after obtaining a search warrant, Corporal

Cannon and other officers searched the Volvo. They seized a loaded semi-

automatic Taurus handgun from under the front seat, a loaded semi-

automatic Mauser handgun that was found to the left of the brake pedal, and

personal papers and photographs of Thomas.

          (12) On appeal, Thomas has raised six overlapping claims of error,

including ineffective assistance of counsel. None of Thomas’ claims was

raised at trial. As a result, with the exception of the ineffective counsel




5
    Id. at 41.
                                          5
claim, which is not reviewable on direct appeal,6 we have reviewed the

claims for plain error.7 Plain error is error that is “so clearly prejudicial to

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

process.”8

          (13) Thomas claims that Detective Barnes’ trial testimony was

inadmissible hearsay. On plain error review, the claim is without merit. The

record reflects that Detective Barnes’ testimony was limited to his personal

experience and first-hand observations of Black Nose, who Detective Barnes

knew as Thomas. Detective Barnes’ testimony was not hearsay.9

          (14) Thomas claims that Geiser and Cannon did not have a

legitimate basis to stop the Volvo. On plain error review, the claim is

without merit. The record reflects that Geiser and Cannon had probable

cause to stop the Volvo for the traffic violation they observed.10




6
    Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
7
    Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
8
    Id.
9
  Jenkins v. State, 8 A.3d 1147, 1153 (Del. 2010) (concluding that witness’ testimony
“based on firsthand observations of which he had personal knowledge” was not hearsay).
10
  Holden v. State, 23 A.3d 843, 847 (Del. 2011) (citing Whren v. United States, 517 U.S.
806, 810 (1996)).
                                             6
          (15) Thomas claims that, even if the initial traffic stop was valid,

Officer Geiser’s conduct during the stop violated Thomas’ right to be free

from unreasonable search and seizure.

                 During a lawful traffic stop, a police officer may
                 order . . . the driver . . . out of the vehicle pending
                 completion of the traffic stop. The scope and
                 duration of the detention must be reasonably
                 related to the initial justification for the traffic
                 stop. A police officer may not conduct a pat down
                 search of a person during a traffic stop unless the
                 office has reasonable suspicion that the person
                 subject to the frisk is armed and dangerous.11

In this case, the Court finds, based on the record, that Officer Geiser had a

reasonable belief that Thomas was armed and dangerous when, as Geiser

approached the Volvo, Thomas suddenly concealed his hands.12 On plain

error review, Thomas’ claim to the contrary is without merit.

          (16) Thomas claims that Officer Geiser’s trial testimony concerning

the reported disturbance at Sixth and Jefferson Streets was inadmissible

hearsay. On plain error review, the claim is without merit. Officer Geiser’s

testimony about the reported disturbance was not a “principal factor” in




11
   Holden v. State, 23 A.3d 843, 847 (Del. 2011) (citations omitted). See also Rodriguez
v. United States, No. 13-9972, 2015 WL 1780927 (U.S. April 21, 2015) (holding that
police may not extend otherwise-completed traffic stop, absent reasonable suspicion, to
conduct dog sniff).
12
     Moore v. State, 997 A.2d 656, 666-67 (Del. 2010).
                                             7
Thomas’ convictions. 13 Thomas convictions were based on evidence seized

under a search warrant issued after a lawful traffic stop. To the extent

Officer Geiser’s testimony was inadmissible hearsay, its admission was

harmless error.14

          (17) Thomas claims that there was insufficient evidence to support

his convictions. On plain error review, the claim is without merit. When a

defendant claims that the evidence against him was insufficient to support a

jury verdict, this Court must 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.”15 In this case, viewing the

evidence in the light most favorable to the State, a reasonable jury could

find, beyond a reasonable doubt, that Thomas, a person prohibited, was

guilty of PFBPP (possessing a firearm), CCDW (carrying a concealed

deadly weapon), and PABPP (possessing ammunition).




13
   Compare Williams v. State, 98 A.3d 917, 922 (Del. 2014) (holding that any error in
admission of non-testifying police dispatcher’s out-of-court statements to responding
officer was harmless because the statements were not a principal factor in the conviction),
with Sanabria v. State, 974 A.2d 107, 121 (Del. 2009) (holding that admission of non-
testifying police dispatcher’s out-of-court statements to responding officer was unduly
prejudicial when statements were admitted without a limiting instruction and were a
principal factor in the conviction).
14
     Williams v. State, 98 A.3d 917, 922 (Del. 2014).
15
     Robertson v. State, 596 A.2d 1345, 1355 (Del. 1993).
                                              8
      (18) The Court has reviewed the record carefully and has concluded

that Thomas’ appeal is wholly without merit and devoid of any arguably

appealable issue. We are satisfied that Counsel made a conscientious effort

to examine the record and the law and properly determined that Thomas

could not raise a meritorious claim on direct 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/ Karen L. Valihura
                                              Justice




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