IN THE SUPREME COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
No. 110, 2011
Court BelowBSuperior Court
of the State of Delaware in
and for New Castle County
Cr. ID No. 0909018475A
Submitted: July 15, 2011
October 14, 2011
Before STEELE, Chief Justice, HOLLAND and JACOBS, Justices.
This 14th day of October 2011, it appears to the Court that:
In November 2010, a Superior Court jury convicted the appellant,
Michael Washington, of two counts each of Manslaughter and Possession of a
Firearm During the Commission of a Felony in the September 1, 2008 fatal
shooting of Leighton Francis and Amin Guy in Wilmington, Delaware. For those
convictions, plus a third weapon conviction, Washington was sentenced in
February 2011 to a total of eighty-six years at Level V suspended after sixty-four
years for descending levels of probation.1 This is Washington’s direct appeal.
The record reflects that a charge of Possession of a Firearm by a Person Prohibited was severed
prior to verdict. Washington was subsequently found guilty of that charge by the trial judge.
On appeal, Washington’s defense counsel (“Counsel”) has filed a
brief and a motion to withdraw pursuant to Supreme Court Rule 26(c) (“Rule
26(c)”) asserting that there are no arguably appealable issues.2
through Counsel, has submitted two issues for the Court’s consideration. The State
has responded to Washington’s issues and has moved to affirm the Superior
When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must be satisfied that the defendant’s counsel has
made a conscientious examination of the record and the law for arguable claims.3
The Court must also 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.4
It appears from the record that Francis and Guy were found shot to
death on September 1, 2008 (hereinafter “the shooting”) in the front seat of a
bullet-ridden black Lexus (hereinafter “the vehicle”) in the 500 block of E. 10th
Street. The first police officer to arrive at the scene found the vehicle stopped in
the middle of traffic, still in gear and wedged against another car.
Detective John Ciritella of the Wilmington Police Department
(hereinafter “Ciritella”) was assigned to investigate the shooting.
See Del. Supr. Ct. R. 26(c) (governing appeals without merit).
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).
investigation unfolded, Ciritella theorized that the shooting occurred from inside
the vehicle as it was leaving the 700 block of E. 10th Street and that the vehicle
continued moving until it came to a stop in the 500 block.
Ciritella recovered a significant number of bullets, bullet fragments
and/or shell casings, from the interior of the vehicle, the 700 block of E. 10th Street,
and the victims’ bodies following the medical examiner’s autopsies. Ciritella did
not, however, recover a weapon that was used in the shooting.
At trial, Ciritella testified that initially and for several months after the
shooting, he could not develop a lead on a suspect. Finally, however, in April
2009, Ciritella was advised that an inmate in federal custody, Christopher
Waterman, was interested in disclosing information about the shooting that he had
allegedly heard from another inmate.
The other inmate turned out to be
Washington. Similarly, in May 2009 and December 2009, Ciritella learned that
inmates William Coleman and Isaiah Fields also wanted to disclose information
that another inmate, again Washington, purportedly told each of them about the
Ciritella conducted individual one-on-one interviews with Waterman,
Coleman and Fields. As a result of those interviews, Ciritella learned that between
the fall of 2008 and the spring of 2009, Washington allegedly individually told
Waterman, Coleman and Fields at different times that he was either in the vehicle
during the shooting or that he was the shooter, and that the weapon involved in the
shooting was a “Mac 10,” which Ciritella knew was a candidate weapon. Ciritella
also learned from Waterman, Coleman and Fields that the shooting was possibly
the result of a botched robbery or a dispute over a drug deal, and that the gun had
discharged unexpectedly in the vehicle.
Ciritella learned additional information from Coleman about
Washington’s possible involvement in the shooting, namely that Washington was
worried that a resident of the 700 block of E. 10th Street, April Gardner, had
witnessed the shooting.
Moreover, Fields told Ciritella that he was with
Washington in June or July 2008 at 930 Spruce Street, a drug hangout, when the
“Mac 10” Washington was holding suddenly went off and sprayed gunfire.
(10) As a result of his interview with Fields, Ciritella obtained a search
warrant for 930 Spruce Street and in the ensuing search found a number of bullet
holes in the floor and walls from which he recovered three bullets. From his
interview with Coleman, Ciritella was able to locate Gardner at her 729 E. 10th
Street home. Gardner told Ciritella that she witnessed the events leading to the
shooting on September 1, 2008 from the front steps of her home.
(11) At trial, Gardner testified that, prior to the shooting, she was outside
sitting on her front steps watching her grandson ride his bicycle when she observed
Washington and another male – later identified as Guy – walking down 10th Street.
Gardner told the jury that she knew Washington because he had grown up in the
neighborhood and had gone to school with her children.
(12) Gardner testified that she observed Washington and his companion
approach another man who was sitting in the driver’s seat of a vehicle that was
parked directly in front of her house. According to Gardner, after the three men
conversed briefly, Guy got into the right front passenger seat of the vehicle and
Washington got into the right rear passenger seat.
(13) Gardner testified that moments after the two men entered the vehicle
the vehicle’s windows “erupted.” Shocked by the explosion, Gardner said, she
immediately “grabbed [her] grandson” and ran to her daughter’s house around the
corner on Bennett Street where she remained for several hours before returning
home. Gardner testified that as she ran from the scene, she could feel shards of
glass getting caught in her hair, and that she had “glass all in [her] hair” when she
reached her daughter’s house. Gardner further testified that Washington came to
her home later that evening “to apologize,” but that she refused to speak to him.
(14) On September 28, 2009, Washington was charged with two counts of
Murder in the First Degree, two counts of Possession of a Firearm During the
Commission of a Felony and one count of Possession of a Firearm by a Person
Prohibited. Washington went to trial on those charges on October 26, 2010.
(15) At trial, the State’s ballistics expert, Delaware State Police Firearms
Examiner Carl Rone (hereinafter “Rone”), opined that the strafing of the vehicle’s
interior was the result of a semi-automatic or automatic weapon discharging more
than thirty rounds inside the vehicle from the area of the right rear passenger seat.
Rone further opined that the sixteen bullets and thirty spent shell casings he
examined, which were recovered from the vehicle, the victims’ bodies, and 930
Spruce Street, all came from the same semi-automatic or automatic weapon.
(16) Washington testified at trial that he visited “Miss April” later in the
evening on September 1, 2008, because he was sorry to hear that Leighton and
Francis had been shot in front of her house, and that she had witnessed the
shooting. Washington also testified that, a few days prior to the shooting, he had a
conversation with Leighton and Guy, while in the vehicle, about a gun his cousin
wanted to sell. According to Washington, the gun he was helping his cousin sell
“hold[s] 30 rounds” and was “the same gun that went off in the house [on] 930
Spruce Street.” Washington denied any involvement in the shooting, however, and
he testified that at the time of the shooting he was “cooking up some drugs” at 930
(17) On November 11, 2010, at the conclusion of the nine-day trial, the
jury convicted Washington of two counts of Manslaughter as lesser-included
offenses of Murder in the First Degree and two counts of Possession of a Firearm
During the Commission of a Felony. The jury acquitted Washington of Attempted
Robbery in the First Degree.
(18) In his issues raised for this Court’s consideration, Washington claims
that he is entitled to a new trial on the basis of insufficient evidence because of two
misleading statements that were made at trial. Because Washington’s claims of
error could have been raised at trial but were not, this Court has considered the
claims for plain error.5
(19) Under the plain error standard of review, the error
complained of must be so clearly prejudicial to
substantial rights as to jeopardize the fairness and
integrity of the trial process. Furthermore, the doctrine of
plain error is limited to material defects which are
apparent on the face of the record; which are basic,
serious and fundamental in their character, and which
clearly deprive an accused of a substantial right, or which
clearly show manifest injustice.6
(20) Washington’s first claim is that the prosecutor misled the jury in her
opening statement when she referred to a cell phone call between Francis and Guy
that was not substantiated at trial.
The trial transcript reflects the following
relevant portion from the prosecutor’s opening statement:
Detective Ciritella talks to some people on the
street, and what he finds out is that Amin Guy, who lives
at 707 East 10th Street, and got a phone call, got a phone
call, and he walks down the street.
The phone records will show that Leighton
[Francis] called Guy before 8:30 p.m. September 1st,
2008. Amin left that house, but never came back.7
(21) Washington is correct that the prosecutor made a reference in her
opening statement to a cell phone call that was never proven at trial. Washington is
incorrect, however, that the prosecutor’s misstatement was prejudicial.8 Rather,
Del. Supr. Ct. R. 8.
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (citations omitted).
Trial tr. at 21 (Oct. 26, 2010).
See Dailey v. State, 956 A.2d 1191, 1195 (Del. 2008) (“Only comments that prejudicially affect
the ‘substantial rights’ of the accused compromise the integrity of the verdict and the fairness of
having reviewed the trial transcript, the Court concludes that the prosecutor’s
reference to a cell phone conversation between Francis and Guy immediately
before the shooting was of no apparent consequence to the case.
(22) Washington’s second claim is that Rone testified at trial, contrary to a
written report, that two bullet fragments found in the 700 block of E. 10th Street
came from the same weapon as the other bullets recovered in the investigation.
According to Washington, as a result of the alleged error in Rone’s testimony,
Rone’s expert opinion was misleading and baseless.
(23) Washington’s second claim is without merit. The record reflects that
Rone testified that sixteen intact bullets and thirty spent shell casings were
recovered from the vehicle, the victims’ bodies, and 930 Spruce Street. It does not
appear that Rone testified about bullet fragments that were recovered from the 700
block of E. 10th Street.
(24) Finally, it does not appear, as Washington seems to suggest, that the
unproven cell phone call and/or the presence or absence of expert testimony on two
bullet fragments had an impact on the sufficiency of the evidence.
sufficiency of evidence claim, the relevant inquiry is whether, considering the
evidence in the light most favorable to the State, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.9 In this
case, after a thorough review of the Superior Court record, the Court concludes that
trial.” (quoting Daniels v. State, 859 A.2d 1008, 1011 (Del. 2004))).
Dixon v. State, 567 A.2d 854, 857 (Del. 1989).
there was sufficient evidence supporting the jury’s conviction of Washington on
two counts each of Manslaughter and Possession of a Firearm During the
Commission of a Felony.
(25) The Court concludes that Washington’s 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 Washington could not raise a meritorious claim on 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/ Randy J. Holland