Summary
holding that plain error review unavailable where defendant unequivocally waived right to a Getz instruction
Summary of this case from MacDonald v. StateOpinion
No. 584, 2001
Submitted: May 7, 2002
Decided: June 7, 2002
Court Below: Superior Court of the State of Delaware in and for Sussex County Cr. A. No. IS01-04-0227I and IS01-04-02281I and Cr. ID No. 0104000979.
Vacated and remanded.
Unpublished opinion is below.
LESTER J. HICKMAN, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 584, 2001 In the Supreme Court of the State of Delaware. Submitted: May 7, 2002 Decided: June 7, 2002Before VEASEY, Chief Justice, BERGER and STEELE, Justices.
MYRON T. STEELE, Justice.
ORDER
This 7th day of June 2002, on consideration of the briefs of the parties, it appears to the Court that:
1) In August 2001, a Superior Court jury convicted Appellant Lester J. Hickman of Trafficking in Cocaine, Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance (Cocaine), Possession of Drug Paraphernalia, and Possession of Cocaine. This is Hickman's direct appeal.
2) On April 2, 2001, Delaware State Police Officers conducting surveillance observed Hickman repeatedly engaged in activity consistent with the distribution of illegal drugs outside of his residence. Based on their observations, the officers obtained a search warrant for Hickman's property. Once inside Hickman's trailer-home, the officers discovered nearly $6,000 in cash. In addition, they located a bag containing 6.01 grams of crack cocaine buried in Hickman's backyard.
3) Hickman contends that the trial court committed reversible error by failing to provide the jury with an instruction limiting their consideration of police testimony that officers had observed Hickman selling drugs to the specific purpose of proving intent to sell cocaine. Delaware Rule of Evidence 404(b) prohibits the introduction of evidence of other crimes or bad acts in order to prove the character of any person. That evidence is, however, admissible for other purposes including intent. In Getz v. State, we held that the trial judge should instruct the jury concerning the limited purpose of the evidence of other wrongful acts. We agree with Appellant's contention that the evidence of his alleged drug dealing would normally require a Getz instruction. In this instance, however, the record plainly shows that, when the trial judge raised the issue of a potential Getz instruction, defense counsel affirmatively waived his right to one, noting that he was making a tactical decision intended to minimize the jury's courtroom exposure to Hickman's alleged drug distribution. Hickman's unequivocal waiver of his right to a Getz instruction at trial forfeits any claim for plain error review on appeal.
538 A.2d 726, 734 (Del. 1988).
4) Alternatively, Hickman advances the argument that the drugs seized from his home during the execution of a valid search warrant should have been suppressed because the police officers did not follow the "knock and announce" rule before entering his residence. Defense counsel did not include this argument in the suppression motion filed before trial. Indeed, the record is devoid of any evidence that the police executing the warrant in question did not properly announce their presence. Because a trial judge cannot err by failing to suppress evidence where the record lacks any evidence or suggestion that the State acted improperly, this argument lacks merit.
5) Finally, on its own initiative, the State has agreed that the trial court erred by allowing the jury to return guilty verdicts on charges of both trafficking and possession of cocaine. Indeed, we have held that a conviction for both Trafficking of Cocaine and the lesser-included offense of Possession of Cocaine constitutes double jeopardy under both the United States and Delaware constitutions. Thus, we find that Hickman's conviction on the possession charge must be vacated.
McRae v. State, 782 A.2d 265, 2001 WL 1175349 (Del. 2001) (order).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and hereby is, AFFIRMED in part and VACATED in part. Appellant's convictions for Trafficking in Cocaine, Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance (Cocaine), and Possession of Drug Paraphernalia are AFFIRMED. The conviction for Possession of Cocaine is VACATED. This matter is REMANDED to the Superior Court for resentencing in accordance with this Order.