      IN THE SUPREME COURT OF THE STATE OF DELAWARE

GERALD AIKENS,                           §
                                         §   No. 63, 2016
      Defendant Below-                   §
      Appellant,                         §
                                         §
      v.                                 §   Court Below—Superior Court
                                         §   of the State of Delaware
STATE OF DELAWARE,                       §
                                         §   Cr. ID 1501012505
      Plaintiff Below-                   §
      Appellee.                          §

                           Submitted: June 20, 2016
                           Decided:   August 29, 2016

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

                                    ORDER

      This 29th day of August 2016, 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:

      (1)    In October 2015, the defendant-appellant, Gerald Aikens, was

convicted following a Superior Court bench trial of Possession of a Firearm

by a Person Prohibited (“PFPP”), Carrying a Concealed Deadly Weapon

(“CCDW”), and Driving While Suspended.               Following a presentence

investigation, the Superior Court sentenced Aikens to a total period of

thirteen years at Level V incarceration to be suspended after serving five

years in prison for a period of probation. This is Aikens’ direct appeal.
      (2)    Aikens’ counsel on appeal has filed a brief and a motion to

withdraw under Rule 26(c). Aikens’ counsel asserts that, based upon a

complete and careful examination of the record, there are no arguably

appealable issues.    By letter, Aikens’ attorney informed him of the

provisions of Rule 26(c) and provided Aikens with a copy of the motion to

withdraw and the accompanying brief. Aikens also was informed of his

right to supplement his attorney's presentation.

      (3)    In response to his counsel’s Rule 26(c) brief, Aikens filed four

different documents raising many overlapping issues.             His distinct

arguments are that: (i) the trial court improperly considered hearsay

evidence regarding statements made by Aikens at his videophone

arraignment; (ii) the State engaged in misconduct and committed Brady and

Deberry violations by failing to preserve and test a partial fingerprint

obtained from the gun found in his car; (iii) the State erred in admitting

testimony concerning marijuana found in Aikens’ car at the time of his arrest

because those drugs were not properly authenticated and because the State

did not prove beyond a reasonable doubt that he possessed marijuana; (iv)

the police stop of his vehicle was pretextual and the resulting search violated

his constitutional rights; (v) he was never given Miranda warnings; (vi) the

testifying officer committed perjury; (vii) the trial judge improperly engaged



                                      2
in an unrecorded sidebar with counsel; (viii) he was not driving without a

license; (ix) his waiver of a jury trial was not knowing, intelligent, and

voluntary; and (x) the evidence was insufficient to sustain his convictions.

      (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 presentation.1

       (5)   The State’s evidence at trial fairly established the following

version of events. On January 21, 2015, a Delaware State police officer was

sitting in his patrol car at the intersection of Harmony Road and Route 273

in New Castle County. He saw a green Monte Carlo exit a gas station

parking lot and drive northbound in the southbound lane of Harmony Road.

The officer pulled his car behind the vehicle. He checked the vehicle’s

registration and determined that one of the vehicle’s owners, Aikens, had a

suspended driver’s license. The officer pulled the vehicle over. Aikens was

the driver, and Khalif Samuels was his front seat passenger. The officer

1
 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
smelled freshly burned marijuana and saw, in plain view, a plastic bag

containing vials filled with a green leafy substance, which later field tested

positive for marijuana.

      (6)    The officer asked both men to exit the vehicle. The officer

searched the car and found a loaded handgun in the closed center console.

Both men were arrested. The gun was later tested for fingerprints, but no

usable prints were recovered. During his videophone arraignment, Aikens

twice said to the Justice of the Peace that the gun belonged to him and that

the police should not have arrested Samuels. After the magistrate reminded

him of his right to remain silent, Aikens again stated that the gun was his. It

was undisputed that Aikens was prohibited from possessing a gun. Aikens

did not testify at trial. During closing, defense counsel argued that without

fingerprints to connect him to the gun, there was reasonable doubt that

Aikens, and not Samuels, was in possession of the gun. The Superior Court

convicted Aikens of all three charges.

       (7)   Aikens’ first point on appeal is that the Superior Court

improperly considered hearsay evidence of statements that Aikens made

during his videophone arraignment.           Aikens’ characterization of his

statements as hearsay, however, is simply incorrect. Under Delaware Rule




                                         4
of Evidence 801(d)(2)(A), a party’s own statements are not hearsay.2 This

argument has no merit.

       (8)    Aikens next contends that the State violated his rights by failing

to preserve and test fingerprint evidence recovered from the gun. Aikens is

incorrect. Through the testimony of the arresting officer, the State presented

the laboratory test results of the fingerprint evidence that was recovered

from the gun. The report concluded that “latent prints are of no value to the

comparison.” The report was admitted without any objection by Aikens, and

Aikens’ trial counsel argued in closing that the lack of fingerprint evidence

linking Aikens’ to the gun created reasonable doubt that the gun had been in

Aikens’ possession. There is no factual basis for Aikens’ contention that the

State failed to preserve evidence or violated any discovery requirements.

       (9)    Aikens’ next two issues are intertwined. He argues that the

police officer’s stop of his vehicle was pretextual and the resulting search

violated his constitutional rights. He also contends that the Superior Court

erred in admitting testimony concerning marijuana seen in plain view in his

car at the time of the traffic stop because the evidence was not properly

authenticated and because the State did not prove that he possessed

marijuana beyond a reasonable doubt. Because the State did not charge him

2
  D.R.E. 801(d)(2)(A) provides that any statement that is offered against a party and is
the party’s own statement is not hearsay.


                                           5
with any drug offense, Aikens asserts that the marijuana also was a pretext

for the resulting search of his vehicle, which was unconstitutional, and that

the evidence seized as a result of that search (i.e., the gun) should have been

deemed inadmissible.

       (10) Aikens, however, did not file a motion to suppress the evidence

seized as a result of the search of his vehicle, nor did he raise any objections

at trial to the testimony concerning his possession of marijuana. Thus, we

review these claims for plain error.3         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.4

       (11) We find no plain error in this case.             The arresting officer

testified at trial that he saw Aikens’ vehicle driving northbound in a

southbound lane. The officer also ran a check and discovered that one of the

vehicle’s registered owners, Aikens, had a suspended license. Given this

testimony, we reject Aikens’ belated contention that the stop was pretextual

and unjustified.5




3
  Del. Supr. Ct. R. 8 (2016).
4
  Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
5
  Harrison v. State, ___ A.3d ___, 2016 WL 3678292 (Del. July 8, 2016).


                                          6
         (12) Moreover, at Aikens’ bench trial, the trial judge, sua sponte,

raised the issue of the justification for the officer’s search of Aikens’

vehicle.      Only then did the prosecutor proffer the officer’s testimony

concerning the smell of freshly-burned marijuana and the bag of marijuana

in plain view in Aikens’ car. Aikens did not object to this testimony, and we

find no plain error in its admission.6 Contrary to Aikens’ suggestion, the

State was not required to establish a chain of custody of the marijuana

because the marijuana itself was not admitted into evidence. Moreover,

because the possession of marijuana charge was dismissed before trial, the

State was not required to prove that Aikens possessed marijuana beyond a

reasonable doubt. The presence of marijuana in plain view in Aikens’

vehicle was sufficient justification to arrest Aikens and to conduct a search

of the vehicle beyond the purpose of the initial traffic stop.7 We find no

plain error with respect to the admission of the gun seized from Aikens’

vehicle as a result of the officer’s search.

         (13) Aikens also appears to argue that the arresting officer’s

testimony concerning the marijuana he found in Aikens’ car was perjured.

The sole basis for Aikens’ allegation is that the State did not offer this

testimony until the trial judge, sua sponte, raised the question about the

6
    Del. Supr. Ct. R. 8.
7
    Jenkins v. State, 970 A.2d 154, 158-59 (Del. 2009).


                                              7
justification for the search of Aikens’ vehicle. As already noted, however,

Aikens did not challenge the admission of this testimony. There is no

support in the record for Aikens’ conclusory allegation that the arresting

officer gave false testimony.

          (14) Aikens next asserts that he was never advised of his Miranda

rights. To the extent that Aikens suggests that he made statements to the

police that should have been suppressed, he does not identify what those

statements were. Moreover, in the absence of plain error (which we do not

find), his failure to raise this issue below constitutes a waiver of the claim on

appeal.8

          (15) Aikens also contends that his waiver of his right to a jury trial

and his waiver of his right to testify were not knowing and intelligent

because he was under the influence of drugs. The trial transcript, however,

belies these assertions. The record reflects that the Superior Court judge

engaged in appropriate colloquies with Aikens regarding his waiver of both

of these trial rights. Aikens responded to the judge intelligibly, and there is

no evidence in the record to suggest that Aikens was not competent to waive

these rights. Thus, we find no merit to this belated claim.




8
    Del. Supr. Ct. R. 8.


                                         8
         (16) Aikens’ next claim—that the Superior Court improperly

engaged in an unrecorded sidebar during trial—is also unsupported by the

trial transcript. The transcript reflects that during the course of trial, the

judge held only one sidebar with counsel regarding the justification for the

search of Aikens’ vehicle. That sidebar was recorded and is part of the trial

record. There is no factual basis for Aikens’ claim to the contrary.

         (17) Finally, Aikens contends that he was not driving without a

license and that the evidence was insufficient to support any of his

convictions. In reviewing a sufficiency of the evidence claim, the Court

must determine, after viewing the evidence in the light most favorable to the

prosecution, whether any rational trier of fact could have found the

defendant guilty beyond a reasonable doubt.9 In this case, Aikens’ counsel

conceded at trial that Aikens was driving and that his license was suspended.

Accordingly, the State’s evidence was sufficient to prove Aikens guilty of

that charge. Moreover, with respect to the weapon offenses, the evidence at

trial reflected that Aikens was prohibited from possession a firearm, that a

gun was found in the center console of Aikens’ car while Aikens was driving

it, and that Aikens admitted during his arraignment that the gun belonged to




9
    Jackson v. Virginia, 443 U.S. 307, 319 (1979).


                                              9
him. Under the circumstances, the evidence was sufficient to prove Aikens’

guilty of PFPP and CCDW.10

          (18) This Court has reviewed the record carefully and has concluded

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

appealable issue. We also are satisfied that Aikens’ counsel has made a

conscientious effort to examine the record and the law and has properly

determined that Aikens 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 THE COURT:


                                               /s/ Collins J. Seitz, Jr.
                                                       Justice




10
     Lecates v. State, 987 A.3d 413, 426 (Del. 2009).


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