            IN THE SUPREME COURT OF THE STATE OF DELAWARE

DANIEL WOODS,                          §
                                       §     No. 259, 2018
      Defendant Below,                 §
      Appellant,                       §     Court Below: Superior Court
                                       §     of the State of Delaware
      v.                               §
                                       §     Cr. ID Nos. 1702009428 (N)
STATE OF DELAWARE,                     §                 1702009077
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                             Submitted: November 26, 2018
                             Decided:   February 14, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

                                       ORDER

      This 14th day of February 2019, upon consideration of the brief under Supreme

Court Rule 26(c), appellate counsel’s motion to withdraw, and the State’s response, it

appears to the Court that:

      (1)    On February 14, 2017, at approximately 8:30 a.m., the Delaware State

Police responded to a 911 call regarding a suspicious vehicle in the area of Blackbird

Station Road in Townsend. The caller described the vehicle as a black Jeep Wrangler

and provided a Delaware tag number. Corporal Raymond Shatley drove to the area

and spotted the Jeep. Corporal Shatley activated his patrol vehicle’s lights and siren

and attempted to initiate a stop.
      (2)     The driver of the Jeep—who turned out to be the appellant, Daniel

Woods—disregarded the police signal and fled, with Corporal Shatley in pursuit.

Trooper Edwin Ramirez and Corporal William Walker joined in the chase with Trooper

Ramirez’ vehicle taking the lead. At one point, the Jeep came to a stop at the entrance

of the Saint Anne’s Golf Course, where the driver opened his door and discarded

several items. Corporal Walker returned to that spot later that morning and retrieved

the discarded items, which turned out to be DVDs.

      (3)     The chase lasted about twenty-five minutes and ended when the Jeep

overheated and came to a complete stop. At the direction of Trooper Ramirez, Woods

got out of the Jeep with his hands up and got on the ground. When conducting a pat

down search of Woods, Trooper Ramirez removed a pocket knife from Woods’ front

pants pocket. Also, Trooper Ramirez saw several bracelets, other jewelry, and multiple

DVDs on the floor of, and scattered inside, the Jeep.

      (4)     At approximately 1:00 p.m. on February 14, 2017, Laura Campbell

returned home from work after receiving a call from her husband that their home

(located at 505 Dogtown Road in Townsend) had been broken into. Laura Campbell

noted that the front door of the home was damaged, and that a number of items were

missing from inside the home, including her laptop, two Xbox systems, jewelry, and

DVDs.       Unfortunately for the Campbells, their home was burglarized again on



                                          2
February 16, 2017. In the second break-in, the intruder entered the home through a

kitchen window and stole a scope mounting kit for a firearm and a clarinet.

          (5)     Some of the property taken in the February 14 burglary—namely, the

jewelry and some of the DVDs—were returned to the Campbells on February 14, 2017.

The laptop and Xbox systems were returned to the Campbells on February 23, 2017,

when Corporal Walker retrieved those items from a construction worker who had

called the police to report finding the items when working at the Saint Anne’s Golf

Course.

          (6)     Woods was indicted and tried for offenses arising from the vehicle chase

and the February 14 burglary of the Campbell residence. On January 5, 2018, the jury

convicted Woods of Burglary in the Second Degree, Felony Theft, Criminal Mischief,

Disregarding a Police Officer’s Signal, Resisting Arrest, and Carrying a Concealed

Deadly Weapon.

          (7)     Immediately after the verdict was read, Woods interrupted the

proceedings to tell the Superior Court that he wanted to move “for an acquittal on the

charges.”1 The trial judge denied the request as follows:

          Mr. Woods, you have chosen up to this point to allow Mr. Buckworth to
          represent you. If you decide at this point to go pro se, the Court needs to
          have a hearing and address a motion to proceed pro se. It’s not one that I
          would suggest that you make, but you’re free to do so. But I’m not going



1
    Trial Tr. at 147 (Jan. 5, 2018).
                                               3
       to consider an oral motion at this time. It’s a motion that you need to make
       in writing and the Court will address it at a later time.2

Woods did not revisit the matter of proceeding pro se, and he did not file a written

motion for judgment of acquittal. On April 27, 2018, the Superior Court declared

Woods a habitual offender and sentenced him to fourteen years of Level V

incarceration for the second-degree burglary conviction and to concurrent probation

for the other convictions.3 This is Woods’ direct appeal.

       (8)    On appeal, Woods’ appellate counsel has filed a brief and motion to

withdraw under Rule 26(c). Appellate counsel asserts that, based upon a complete and

careful examination of the record, there are no arguably appealable issues. Woods has

supplemented the Rule 26(c) brief with claims he would like us to consider on appeal.

The State has responded to the position taken by Woods’ appellate counsel, the claims

raised by Woods, and has moved to affirm the Superior Court’s judgment.

       (9)    When considering a Rule 26(c) brief and motion to withdraw, our standard

and scope of review is twofold.4 First, we must be satisfied that the appellant’s counsel

has made a conscientious examination of the record and the law for claims that could




2
  Id.
3
  In the same sentencing proceeding, the Superior Court sentenced Woods in Cr. ID No. 1701019682
for convictions he received in September 2017 for Receiving Stolen Property and Selling Stolen
Property.
4
  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).
                                               4
arguably support the appeal.5 Second, we must conduct our own review of the record

to determine whether the appeal is so totally devoid of at least arguably appealable

issues that it can be decided without an adversary presentation.6

         (10) Fairly read, Woods’ supplement to the brief raises nine claims. First,

Woods claims that Trooper Ramirez did not read him his Miranda rights. Second,

Woods claims that he was charged, in part, for stealing property that was taken in the

second burglary of the Campbells’ residence on February 16, 2017. Third, Woods

claims that the indictment misstated the brand name of the laptop that was reported

missing on February 14, 2017 and found on February 23, 2017. Fourth, Woods claims

that the prosecutor misrepresented the evidence in the State’s opening statement. Fifth,

Woods claims that there was insufficient evidence to support the Carrying a Concealed

Deadly Weapon conviction because his pocket knife was clipped to the outside of his

pants. Sixth, Woods claims that there was insufficient evidence to support the Felony

Theft conviction because the jury did not determine that the value of the property was

over $1,500. Seventh, Woods claims that he was denied the right to cross-examine the

construction worker who found the laptop and the Xbox systems. Eighth, Woods

claims that the Superior Court erred when denying his post-verdict pro se request for

an acquittal. Last, Woods claims that his trial counsel was ineffective.



5
    Penson v. Ohio, 488 U.S. at 83.
6
    Id.
                                           5
       (11) We have not considered Woods’ claim of ineffective assistance of

counsel. As a general rule, we will not consider a claim of ineffective assistance of

counsel on direct appeal when the claim was not raised in the Superior Court in the first

instance.7 Typically an ineffective counsel claim is pursued through a motion for

postconviction relief under Superior Court Criminal Rule 61 and is adjudicated on the

basis of the record developed during the postconviction proceeding.8

       (12) Turning to the other claims, we conclude, first, that the Superior Court did

not err or abuse its discretion when denying Woods’ pro se request for a judgment of

acquittal. Before allowing a criminal defendant to proceed pro se, the Superior Court

must conduct a hearing to inform the defendant of the risks inherent in going forward

in a criminal trial without the assistance of legal counsel and to determine that the

defendant’s decision to proceed without counsel is a knowing and voluntary waiver of

the constitutional right to counsel.9 The Superior Court’s refusal to consider Woods’

request for a judgment of acquittal without first conducting the required hearing on

Woods’ request to proceed pro se, and the court’s ruling that Woods must file a written

motion for acquittal, were entirely appropriate. To the extent Woods attempts to argue




7
  Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
8
  Id.
9
  Hartman v. State, 918 A.2d 1138, 1140–41 (Del. 2007).
                                               6
the basis of his request for an acquittal here, we will not consider his claim in the first

instance.10 Woods will have to make the argument in a postconviction proceeding.

       (13) Because none of the other claims on appeal were raised at trial, we have

reviewed the claims for plain error.11 Plain error is error that is “so clearly prejudicial

to substantial rights as to jeopardize the fairness and integrity of the trial process.”12

       (14) Woods claims that Trooper Ramirez did not give him Miranda warnings.

The claim is without merit.          No statement by Woods was introduced at trial.

Consequently, whether or not Woods was read his Miranda rights is irrelevant.13

       (15) Woods’ claims of errors in the indictment are also without merit. Woods

was indicted for the February 14, 2017 burglary of the Campbells’ residence, not the

second burglary on February 16, 2017. The laptop’s brand name was not an essential

element of any of the crimes charged, and the indictment gave Woods sufficient notice

of the charges. Any discrepancy in the indictment concerning the brand name of the

laptop, and any variance between the indictment and the evidence adduced at trial, were

not prejudicial.14

       (16) Woods claims that the prosecutor misrepresented the evidence in the

State’s opening statement when he told the jury that the laptop and the Xbox systems


10
   Del. Sup. Ct. R. 8.
11
   Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
12
   Id.
13
   Malin v. State, 2008 WL 2429114, at *2 (Del. June 17, 2008).
14
   Del. Super. Ct. Crim. R. 7(c)(1), (2).
                                                7
were located “[w]hen the police officer went back and retraced the path of flight of the

defendant.”15 On plain error review, the claim is without merit. To the extent the

prosecutor suggested in error that the evidence would show that the laptop and the

Xbox systems were among the discarded items that Corporal Walker retrieved from

the entrance of the Saint Anne’s Golf Court on February 14, 2017, Woods makes no

reasoned effort to show that the misstatement was prejudicial, and we have discerned

no prejudice.

       (17) Woods claims that he was denied the right to cross-examine the

construction worker who found the laptop and Xbox systems. His claim is without

merit. The Confrontation Clause of the Sixth Amendment guarantees a defendant the

right to cross-examine an adverse witness at trial.16 It does not require the State to call

any particular individual to testify as a witness.17 To the extent Woods complains that

the substance of statements attributed to the construction worker by other trial

witnesses was impermissible hearsay and thus was admitted in error in violation of his

right to confrontation, the record reflects that the parties, through counsel, stipulated to

the admission of those statements.18




15
   Trial Tr. at 17 (Jan. 3, 2018).
16
   Davis v. Alaska, 415 U.S. 308, 315–16 (1974).
17
   Salaberrios v. State, 2017 WL 443721, at *3 (Del. Jan. 20, 2017) (citing Charbonneau v. State, 904
A.2d 295, 302 (Del. 2006)).
18
   Trial Tr. at 54–55 (Jan. 5, 2018).
                                                 8
          (18) Finally, viewing the evidence in the light most favorable to the State, we

conclude that a reasonable jury could have found beyond a reasonable doubt that

Woods was guilty of Carrying a Concealed Weapon and Felony Theft. Trooper

Ramirez testified that he found Woods’ pocket knife inside of Woods’ right front pants

pocket.19 Detective Bridget Harris and Laura Campbell testified that the value of the

property taken in the February 14 burglary was “over $2,000.”20

          (19) Having carefully reviewed the record, we conclude that Woods’ appeal is

wholly without merit and devoid of any arguably appealable issue. We are satisfied

that Woods’ appellate counsel made a conscientious effort to examine the record and

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

appeal.

          NOW, THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED.

The judgment of convictions is AFFIRMED. The motion to withdraw is moot.

                                                  BY THE COURT:

                                                  /s/ Collins J. Seitz, Jr.
                                                         Justice




19
     Id. at 44.
20
     Id. at 80; Trial Tr. at 52 (Jan. 3, 2018).
                                                      9
