           IN THE SUPREME COURT OF THE STATE OF DELAWARE

RAMON A. JOYNER,                        §
                                        §         No. 65, 2016
      Defendant Below,                  §
      Appellant,                        §         Court Below—Superior Court of the
                                        §         State of Delaware
      v.                                §
                                        §         Cr. ID No. 1502005446
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                           Submitted: October 3, 2016
                           Decided:   January 20, 2017

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

                                     ORDER

      This 20th day of January 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 April 2015, the appellant, Ramon A. Joyner, was indicted for

Attempted Rape in the First Degree, Rape in the Second Degree, Kidnapping in the

First Degree, Strangulation, and Malicious Interference with Emergency

Communications. The charges arose from Joyner‘s assault of an acquaintance,
Amanda Brooks,1 on February 8, 2015, at a hotel in Newark, Delaware. Joyner

went to trial on the charges in October 2015.

         (2)     The trial transcript reflects that Brooks, her mother, and two friends,

went to a casino in Wilmington, Delaware on February 7, 2015. Brooks saw

Joyner at the casino and struck up a conversation with him. Brooks and Joyner

were acquainted with each other and had each other‘s cell phone numbers. Early

the next morning, Brooks and Joyner decided to leave the casino in separate cars

and go out for breakfast. After picking up food at a drive-thru restaurant, Brooks

and Joyner went to Joyner‘s nearby hotel room, where Brooks fell asleep after

eating breakfast.

         (3)     Brooks testified that when she woke up awhile later, Joyner was gone

and her ID and car keys were missing. Brooks texted and called Joyner multiple

times with no answer. Joyner finally responded to Brooks, sending her a text

expressing his desire to have sex with her and his frustration that she would not

oblige. Brooks eventually agreed to have sex with Joyner for the purpose of

obtaining her keys. According to Brooks, when Joyner returned to the room with

the keys, he stated that she needed to ―live up to [her] end of the bargain‖ and have

sex with him.2



1
    The Court has assigned a pseudonym to the victim. Del. Supr. Ct. R. 7(d).
2
    Trial Tr. at 136 (Oct. 7, 2015).
                                                 2
       (4)     Brooks testified that she did not want to have sex with Joyner, but that

he was standing between her and the hotel room door and ―something about his

stance . . . let [her] know that he wasn‘t going to give up easily.‖3 Consequently,

Brooks picked up the room phone and dialed zero to call the front desk to ask for

help, telling the woman who answered the phone, ―I need someone in the room.‖4

At that, according to Brooks, Joyner became angry, snatched the phone from her

hand, and hit her with a closed fist. Brooks testified that Joyner continued to hit

her as he held her down and buried her face in a pillow, which suffocated her, and

that he pulled down her pants and touched her buttocks and vagina with his hands.

According to Brooks, Joyner then took his arm off of the back of her neck and used

his hand to try to guide his penis into her vagina. Brooks testified that when she

felt his penis on her buttocks she ―started squirming‖ and ―thrust [her] body on the

floor, and [she] literally fell on the floor.‖5

       (5)     Brooks testified that she attempted twice to flee the hotel room during

the ordeal. The first time, Brooks made it out of the room and to her car before

Joyner caught her and dragged her back to the room where he continued to beat

and choke her. When Brooks attempted to escape the second time, Joyner stopped

her, ripped the phone cord from the base of the phone and tied her arms with it and


3
  Id. at 137.
4
  Id.
5
  Id. at 140–141.
                                             3
her feet with another cord. According to Brooks, when Joyner eventually left the

room, she untied her arms, deadlocked the door, and attempted without success to

reconnect the phone and call 911. Brooks periodically looked outside for Joyner,

but she stayed in the room even after there was no sight of his car. Eventually

Brooks left the room and sought help from a maintenance worker.

          (6)    When Joyner left the room he went to the hotel front desk to check out

and retrieve his room deposit. A few minutes later, and while Joyner was still in

the hotel lobby, Brooks and the maintenance worker entered the lobby and alerted

other hotel staff about the altercation in Joyner‘s room. The hotel staff called 911.

Joyner remained in the lobby, stating that he wanted to explain to the police that

Brooks had attempted to rob him. Officers from the Delaware State Police then

arrived at the scene and arrested Joyner.

          (7)    Later that morning, Brooks went to Christiana Hospital where she was

examined by a forensic nurse examiner. At trial, the nurse read from the medical

history she prepared of the information Brooks told her about why Brooks was at

the hospital, which included Brooks‘ report that Joyner had penetrated her vagina

with his finger.6

          (8)    On the second day of trial, the Superior Court granted Joyner‘s

request for a jury instruction on unlawful sexual contact as a lesser-included


6
    Id. at 60.
                                             4
offense of rape second degree. Later that day, at the conclusion of the State‘s case,

Joyner moved for a judgment of acquittal on rape second degree, arguing that

Brooks never testified that Joyner penetrated her with his finger. The Superior

Court denied the motion, ruling that the forensic nurse examiner‘s testimony

established a sufficient evidentiary basis to submit the rape second degree charge

to the jury.

       (9)     When it was his turn to testify, Joyner described a much different

scenario. Joyner testified that when he returned to the room after Brooks woke up,

the couple decided to shower together. According to Joyner, Brooks got out of the

shower, saying that she had to get her facial cleanser, but instead she ran out of the

hotel room with his jacket, which contained his money and ID. Joyner testified

that he chased Brooks and stopped her before she made it to her vehicle, and when

he found his money in her purse, Brooks struck him, and he struck her back.

Joyner denied attempting any sexual contact.

       (10) At the conclusion of the three-day trial, the jury convicted Joyner of

unlawful sexual contact in the first degree (as a lesser-included offense of rape

second degree), kidnapping first degree, strangulation, and malicious interference

with emergency communications. The jury could not reach a verdict on attempted

rape first degree, and the State entered a nolle prosequi on that charge. The

Superior Court sentenced Joyner to a total of twenty years of unsuspended Level V

                                          5
incarceration followed by six months at Level IV and concurrent terms of

probation. This is Joyner‘s direct appeal.

      (11) On appeal, Joyner‘s appellate counsel7 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 Joyner with a copy of the

motion to withdraw and the no-merit brief in draft form and advised Joyner that he

could submit written points for the Court‘s consideration. Joyner has submitted

several written points, which are included in the brief filed with the Court. The

State has filed a response to Joyner‘s points and has moved to affirm the Superior

Court‘s judgment.

      (12) When reviewing a motion to withdraw and an 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. 8 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.‖9   In this case, having conducted ―a full examination of all the



7
  Joyner was represented by different counsel at trial.
8
  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).
9
  Penson v. Ohio, 488 U.S. at 82.
                                            6
proceedings‖ and found ―no nonfrivolous issue for appeal,‖10 the Court is satisfied

that Joyner‘s appellate counsel made a conscientious effort to examine the record

and the law and properly determined that Joyner could not raise a meritorious

claim on appeal.

      (13) In his first point on appeal, Joyner claims that the Superior Court

failed to rule on his motion to dismiss counsel and appoint new counsel that he

filed in July 2015. The claim is not supported by the record, which reflects that the

Superior Court ruled on the motion at a hearing on August 18, 2015, more than a

month before trial.11

      (14) Joyner‘s motion to dismiss counsel and appoint new counsel stemmed

from his belief that his trial counsel was not devoting enough time to the case.

During the August 18 hearing, Joyner told the Superior Court that his trial counsel

had spoken to him only once, and that was only because Joyner had filed the

motion to dismiss counsel and appoint new counsel. Moreover, Joyner told the

court that when they finally spoke a few days before the hearing, trial counsel did

not discuss trial strategy with him, which suggested to Joyner that trial counsel had

no strategy.




10
  Id. at 80.
11
   Hr‘g Tr. (Aug. 18, 2015) (hearing on motion to dismiss counsel and appoint substitute
counsel).
                                           7
          (15) After hearing from Joyner, the Superior Court denied the motion to

dismiss counsel, ruling that Joyner‘s dissatisfaction with his trial counsel a month

and a half before trial was not sufficient cause to appoint new counsel. The court

advised Joyner that, going forward, his options were to proceed with his trial

counsel, retain private counsel, or seek permission to represent himself.

          (16) The Superior Court‘s denial of Joyner‘s motion to dismiss counsel and

appoint new counsel was not an abuse of discretion. When affirming the Superior

Court‘s decision on this issue, we rely on the broad discretion that a trial judge

must be afforded to decide a motion to appoint new counsel.12 In this case, the trial

judge was familiar with Joyner‘s case and with trial counsel‘s reputation,

experience, and ability to be ready to represent Joyner at a trial scheduled in six

weeks. Furthermore, it does not appear that trial counsel was neglecting the case.

The record and Superior Court docket reflect that trial counsel filed motions on

Joyner‘s behalf in March and April 2015 and participated in an office conference

and final case review in June 2015. Under these circumstances, the Superior

Court‘s decision that Joyner‘s dissatisfaction with his trial counsel did not justify

the appointment of new counsel was not an abuse of discretion.

          (17) Having said that, given that the record does not contradict Joyner‘s

contention that trial counsel did not meet with him for the first time until a few


12
     Bultron v. State, 897 A.2d 758, 762 (Del. 2006).
                                                  8
days before the August 18 hearing, we would be remiss in not acknowledging

Joyner‘s concern. By August 2015, Joyner had been in jail for six months and was

facing very serious felony charges. This case turned in large measure on the

comparative credibility of Brooks‘ story versus Joyner‘s story.           Under these

circumstances, assuming that trial counsel had, in fact, not yet met with Joyner, it

is clear Joyner had a rational basis to wonder how his trial counsel could

effectively defend him unless counsel spent time with him going over his version

of events and sharing what counsel knew of the State‘s theory.

          (18) Given this potential reality, it is not surprising that the next issue on

appeal concerns Joyner‘s request for a trial continuance to obtain private counsel.

Joyner sought the continuance on the first day of trial, telling the court that he did

not ―feel comfortable‖ with his trial counsel, and that he needed time to arrange for

the appearance of privately retained counsel or, in the alternative, to prepare for

trial so that he could represent himself.13        Joyner told the court that he had

contacted a private attorney but had not heard back from him, and that he would

―rather go pro se.‖14

          (19) The Superior Court denied Joyner‘s request for a continuance after

finding that: the private attorney retained by Joyner to review the case had not

entered an appearance; the jury and witnesses were ready to proceed; and trial

13
     Trial Tr. at 13 (Oct. 6, 2015).
14
     Id.
                                             9
counsel was ready to try the case. The court advised Joyner that his options were

to continue with his trial counsel or to represent himself without a continuance.

Faced with those options, Joyner chose to continue with trial counsel as his

counsel.

          (20) Joyner claims that the Superior Court erred when denying his motion

for a continuance to arrange for the appearance of privately retained counsel.

When faced with a request for a change in counsel at the start of a criminal trial,

the Superior Court must determine if the reasons for a change in counsel justify a

continuance of the trial to make such a change.15 We review the denial of a

continuance for a change of counsel at the start of a criminal trial for an abuse of

discretion.16

          (21) Joyner requested the continuance because he was uncomfortable with

trial counsel and wanted to arrange for the appearance of privately retained

counsel. Joyner‘s concerns about his trial counsel, however, were raised at the

August 18 hearing six weeks earlier. At that time, the Superior Court advised

Joyner that his options were to proceed with trial counsel, retain private counsel, or

seek permission to represent himself.

          (22) Joyner had an opportunity to retain private counsel but did not advise

the court of his intention to retain such counsel until October 6, the first day of

15
     Stevenson v. State, 709 A.2d 619, 630–31 (Del. 1998).
16
     Id.
                                                10
trial.     Considering that the jury, witnesses, trial counsel, and counsel for the

prosecution were ready to proceed on October 6, and that Joyner‘s private counsel

had not entered an appearance in the case, the Superior Court‘s denial of Joyner‘s

request for a continuance to arrange for the appearance of private counsel was not

an abuse of discretion.

          (23) A discretionary ruling on a motion for a continuance will not be

disturbed by this Court unless the ruling is based on clearly unreasonable or

capricious grounds, which was not the case here.17            That said, we again

acknowledge that if, in fact, trial counsel did not speak to Joyner until six weeks

before trial, Joyner was put under a considerable time pressure to obtain new

counsel, and his motion for a continuance is understandable. Nonetheless, the

denial of the motion was within the wide discretion of the Superior Court.18

          (24) Following the denial of Joyner‘s request for a continuance, the

Superior Court took a brief recess. After the recess, but before the jury or Joyner

were brought back into the courtroom, Joyner‘s trial counsel alerted the court that

Joyner was unhappy that his request for a continuance had been denied. Trial

counsel expressed concern that Joyner‘s unhappiness could lead to a disruption at

trial, and both counsel suggested that the court address the situation in a cautionary

instruction. The courtroom discussion is excerpted here:

17
     Hicks v. State, 434 A.2d 377, 381 (Del. 1981).
18
     Secrest v. State, 679 A.2d 58, 64–65 (Del. 1996).
                                                 11
          TRIAL COUNSEL: Your Honor . . . when I tried to talk to [Joyner] after
          you last addressed him, he was making some statements about he‘s
          not just going to sit by and let nothing happen . . . while this trial
          happens or he‘s railroad[ed]. . . . So I wanted to caution, thought it
          might be a good idea to bring it to the Court‘s attention, make an
          instruction.

          TRIAL JUDGE: Do you have any suggestions anybody?
          PROSECUTOR: State would ask the Court to remind Mr. Joyner the
          rules of the courtroom, but beyond that, I don‘t think there‘s much
          that can be done unless he is so disruptive.

          TRIAL JUDGE: I am reluctant to do that, and I will tell you why. . . .
          [His relationship with trial counsel] doesn‘t appear to be the best from
          his standpoint, and . . . if I were to say something to him about
          decorum in the courtroom, it might seem to him that . . . [trial counsel
          is]a pipeline to me, which might undermine an opportunity to repair
          the relationship, but I will talk to the [Court Officers] and tell them to
          be on special alert.

          TRIAL COUNSEL: I already did that. I understand that, Your Honor.

          ***

          TRIAL JUDGE: [I]t might be good of you to . . . let him know if you
          have concerns along those lines that it‘s only going to [harm] him in
          front of the jury any misbehavior. [H]e‘s not going to create a mistrial
          by his own behavior.19

          (25) In his third point on appeal, Joyner claims that his absence from the

courtroom during counsel‘s discussion with the trial judge about his displeasure

with the court‘s ruling and the possible need for a cautionary instruction violated




19
     Trial Tr. at 21–23 (Oct. 6, 2015).
                                             12
his right under Rule 43 to be ―present . . . at every stage of the trial.‖20 Neither trial

counsel nor counsel for the State raised the Rule 43 issue at trial. We have

reviewed the claim for plain error.21 Plain error exists 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.22

       (26) A defendant in a criminal case has a right to be present at trial based

on the Sixth Amendment right to confront one‘s accusers and the common law

―privilege of presence‖ during trial.23 In Delaware, the right to be present at trial is

addressed by Superior Court Criminal Rule 43(a).24                    Rule 43(b) and (c) list

circumstances when the right to be present at trial is not required,25 such as ―[a]t a

conference or argument upon a question of law.‖26

       (27) When the defendant in Capano v. State did not ―allege that he was

absent during the ‗traditional and formal confrontation stage of the trial,‘‖ 27 we



20
   Del. Super. Ct. Crim. R. 43(a) (―Presence required. The defendant shall be present at the
arraignment, at the time of the plea, at every stage of the trial including the impaneling of the
jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided
by this rule.‖).
21
   Del. Supr. Ct. R. 8.
22
   Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
23
   Capano v. State, 781 A.2d 556, 653 (Del. 2001) (quoting Shaw v. State, 282 A.2d 608, 609
(Del. 1971)).
24
   Supra note 20.
25
   Super. Ct. Crim. R. 43(b) (listing when a defendant‘s ―continued presence‖ is not required); R.
43(c) (listing when a defendant‘s ―presence‖ is not required).
26
   R. 43(c). See Capano v. State, 781 A.2d at 653 (noting that ―the right to be present at trial has
definite boundaries‖ in discussion of R. 43(b)–(c)).
27
   Capano v. State, 781 A.2d at 653–54 (citing Bass v. State, 1989 WL 47282 Del. (April 5,
                                                13
held that the defendant was required to ―show that he suffered some prejudice as a

result of his absence.‖28 In this case, Joyner does not argue, and the record does

not reflect, that he was absent during a traditional and formal confrontation stage

of the trial or that he suffered prejudice as a result of his absence. Joyner was

absent from an on-the-record discussion between counsel and the court outside the

presence of the jury on a limited question of courtroom management and in a

discussion where it was apparent the trial judge was attempting to protect Joyner‘s

rights and was most likely to make sure he comport himself in a manner that would

best serve his own interests in an effective defense. Under these circumstances,

and in the absence of plain error, we conclude that Joyner‘s claim under Rule 43 is

without merit.

       (28) Joyner next claims that his indictment for both attempted rape first

degree and rape second degree violated principles of Double Jeopardy.29 The

claim is without merit because the indictment charged Joyner with attempted rape

first degree and rape second degree, not as lesser and greater offenses, but as

separate offenses requiring proof of different elements. Double Jeopardy is not

implicated when each offense charged requires proof of an element that the other



1989) (quoting Dutton v. State, 452 A.2d 127, 147 (Del. 1982))).
28
   Id. at 654.
29
   See Feddiman v. State, 558 A.2d 278, 288 (Del. 1989) (―The division of a single offense into
multiple counts of an indictment violates the double jeopardy provisions of the Constitutions of
the State of Delaware and of the United States.‖).
                                              14
does not.30 Also, the claim is unavailing because Joyner waived any defect in the

indictment by failing to raise the issue prior to trial.31

       (29) To the extent Joyner is attempting to claim that the evidence at trial

did not support submitting the rape second degree charge to the jury because

Brooks did not testify that Joyner penetrated her vagina with his finger, his claim is

without merit. When denying the motion for judgment of acquittal, the Superior

Court found:

       There was testimony not from [Brooks] in court, but rather from [the
       forensic nurse examiner] when she read what Brooks told her at the
       hospital, and that did include a comment that the defendant had
       penetrated her with his finger. That evidence is sufficient to meet the
       standard on the motion for judgment of acquittal because the jury
       could accept that testimony.32

Upon de novo review, we agree that the State presented sufficient evidence to

submit the rape second degree charge to the jury and therefore conclude that the

Superior Court did not err when denying the motion for judgment of acquittal.33

       (30) In his fifth point on appeal, Joyner contends that the prosecutor‘s

closing statement was ―prejudicial.‖            Joyner fails to identify any specific

statements that support his claim, and our review of the record reveals no



30
   Johnson v. State, 709 A.2d 1158, 1159 (Del. 1998) (citing Blockburger v. United States, 284
U.S. 299, 304 (1932)).
31
   Del. Super. Ct. Crim. R. 12(f).
32
   Trial Tr. at 65 (Oct. 8, 2015).
33
   Jacobs v. State, 2015 WL 6780786, at *2 (Del. Nov. 5, 2015) (citing White v. State, 906 A.2d
82, 85 (Del. 2006)).
                                              15
impropriety by the prosecutor during her closing statement. The claim is without

merit.

         (31) Lastly, Joyner claims that his trial counsel was ineffective. The Court

has not considered the claim. A claim of ineffective assistance of counsel is not

reviewed by the Court in the first instance on direct appeal.34

         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




34
     Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
                                                16
