Opinion
No. 211, 2002
Submitted: November 22, 2002
Decided: January 14, 2003
Court Below-Superior Court of the State of Delaware, in and for Kent County Cr.A. Nos. IK01-01-0175 IK01-01-0179
Affirmed.
Unpublished opinion is below.
KEVIN L. DICKENS, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 211, 2002 In the Supreme Court of the State of Delaware. Submitted: November 22, 2002 Decided: January 14, 2003
Before VEASEY, Chief Justice, BERGER and STEELE, Justices
ORDER
This 14th day of January 2003, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) A Kent County jury found the defendant-appellant, Kevin L. Dickens, guilty of Assault and Resisting Arrest. On the assault conviction, he was sentenced to 8 years incarceration at Level V, to be suspended after 4 years for decreasing levels of probation. On the conviction for resisting arrest, he was sentenced to 1 year incarceration at Level V, to be suspended after 30 days for 6 months of probation. This is Dickens' direct appeal.
Dickens represented himself at trial, with standby counsel, and represents himself in this appeal, with standby counsel.
(2) In his appeal, Dickens claims that: a) he was arrested without probable cause; b) one of his co-workers was improperly permitted to remain as a juror; c) he should not have been forced to wear a stun belt at trial; d) he was improperly convicted of violating an unconstitutional statute; e) there was insufficient evidence to sustain his convictions; and f) he was denied his constitutional right to counsel.
(3) The Superior Court trial took place between December 3 and December 12, 2001. O'Shell Howell, the manager of the Data Center for the Delaware Economic Development Office in Dover, Delaware, testified first for the State. Howell described the Development Office as a liaison between the United States Census Bureau and the State of Delaware. Howell's first contact with Dickens was in June 2000, when Dickens, who had worked as a crew leader for the Census Bureau, contacted Howell to complain that the census count for low income and minority neighborhoods was inaccurate. She told him she would talk to her boss and see what could be done.
There was also a pretrial evidentiary hearing on May 22, 2001 at which Capitol Police Officers Michael Lawson and William Foraker testified.
(4) On September 29, 2000 at about 4:30 p.m., Dickens drove up behind Howell as she walked to her car in the parking lot of the Development Office. As Howell got into her car, Dickens exited his vehicle and pounded on one of Howell's back windows. He called her a "sellout" and an "Uncle Tom" and berated her for not helping with the problem he had raised with her in June.
Dickens then followed Howell as she walked back to her building to call the police and attempted to prevent her from entering the building by pushing against her with his chest. Then, as Howell attempted to call 911, Dickens shoved her, called her names and tried to grab the telephone from her. Howell picked up a chair and told Dickens to stay away from her, but Dickens knocked the chair away and began hitting and kicking her, saying "I will kill you." Howell's glasses were knocked off in the struggle and she fell to the floor, with Dickens kicking her repeatedly in the abdomen and chest. Dickens then ran out of the building.
(5) Sheri Bullock, another employee of the Development Office, testified that, on September 29, 2000 at about 4:30 p.m., she observed as Howell was being followed by Dickens inside their building. Bullock told Dickens to move away from Howell and attempted to call the Capitol Police. Dickens grabbed the phone from her, yelled into the receiver and finally disconnected the call. Bullock then observed Dickens knock Howell to the ground and kick her repeatedly. Once the police had been called, Howell paced back and forth between Howell's office and the front hall saying "Bring them on."
(6) Cheryl Biddle, a third employee, testified that, on September 29, 2000 around 4:30 p.m., she heard a disturbance coming from a lower floor, went downstairs and saw Sheri Bullock and Dickens arguing. Bullock was attempting to talk to the police and Dickens was trying to take the phone from her. He was yelling "Bring them on." Then Dickens focused his attention on O'Shell Howell, pushing her down, hitting her in the face and kicking her. After Dickens ran out of the building and before Biddle could lock the door, he ran back in again, swinging his arms and ranting hysterically.
(7) Sergeant William Foraker of the Capitol Police testified at the pretrial evidentiary hearing and at trial. He stated that, when he and fellow officer Michael Lawson arrived at the parking lot of the Development Office, Dickens came out of the building and approached them. Dickens was angry and yelling, but Sergeant Foraker could not understand what he was saying. He and Officer Lawson followed Dickens back into the building and, once inside, Dickens continued to yell and refused to calm down. Officer Lawson, who also testified at both the evidentiary hearing and at trial, warned Dickens that, unless he calmed down, he would be handcuffed for his own protection. When Dickens continued to act in an aggressive manner, Officer Lawson took Dickens' wrist. Dickens pulled his arm away and pushed Officer Lawson in the chest. Dickens then pushed Sergeant Foraker. At that point, the officers told Dickens he was under arrest. Dickens struggled with the officers and, after about 15 minutes, was finally subdued after being maced.
(8) Howell was taken to the emergency room with cuts on her lip and forehead and finger and chest pain. The Emergency Room Physician's Assistant testified that Howell sustained a sprained finger and bruising to her chest.
(9) Dickens' claim that he was arrested without probable cause is without merit. The testimony of the police officers at the evidentiary hearing established that there was probable cause for Dickens' arrest. Probable cause for a warrantless arrest is determined on the basis of the "totality of the circumstances."
Dickens was originally charged with Offensive Touching, DEL. CODE ANN. tit. 11, § 601, Resisting Arrest, DEL. CODE ANN. tit. 11, § 1257, Terroristic Threatening, DEL. CODE ANN. tit. 11, § 621, and Assault, DEL. CODE ANN. tit 11, § 612. The jury found him not guilty of Offensive Touching and Terroristic Threatening.
Darling v. State, 768 A.2d 463, 466 (Del. 2001).
Dickens' conduct both prior to the time the police officers arrived at the Development Office, as described by several witnesses, and at the time the police officers arrived at the Development Office, as observed by the police officers themselves, was clearly sufficient to support Dickens' arrest on all of the charges against him.
(10) Dickens' claim that the jury was tainted because one of the jurors was a co-worker is baseless. The record reflects that, on the first day of trial, Dickens informed the judge that he thought he recognized one of the female jurors from his place of employment. The judge questioned the juror and determined that she did not recognize Dickens. On the second day of trial, the State requested that the juror be removed because it had been confirmed that she and Dickens were employed by the same company. Dickens did not join in the State's request, which the judge denied. The trial proceeded with no further discussion concerning this particular juror. There is, thus, no factual support for Dickens' claim that the jury was tainted.
(11) Dickens' next claim that the judge improperly required him to wear a stun belt during the trial is also without merit. The record reflects that Dickens became belligerent when the judge sustained the State's objection to certain of his questions to O'Shell Howell in his case in chief. The judge ordered the bailiff to restrain Dickens, excused the jury and admonished Dickens that he would not be permitted to disrupt the proceedings. Dickens requested that the judge recuse himself and moved for a mistrial, arguing that his case had been prejudiced because the jury had seen him being restrained. The judge denied both requests.
(12) Before the jury entered the courtroom the next day, the judge ordered that a stun belt be placed on Dickens because his "conduct was escalating out of control." Before trial resumed, the judge advised Dickens not to mention to the jury that he was wearing a stun belt and, when the jury reconvened, ordered them to disregard the incident that had occurred the day before. When Dickens took the witness stand to testify in his own defense, he removed his jacket, permitting the jury to see that he was wearing a stun belt.
(13) The record reflects that the judge consistently acted with propriety and patience at all times during this lengthy and difficult trial. There is no evidence that the judge abused his discretion either when he ordered Dickens to be restrained or when he required Dickens to wear the stun belt. Dickens himself bears full responsibility for any bad impression left with the jury.
(14) Dickens next claims that he was improperly convicted of violating an unconstitutional statute. Specifically, Dickens argues that DEL. CODE ANN. tit. 11, § 612(a)(8) violates equal protection by discriminating against private sector employees and failing to define what constitutes a State employee. Dickens also argues that the State failed to prove that Howell was discharging a duty of employment when the incident occurred.
The statute makes the assault of a State employee in the course of discharging or attempting to discharge a duty of employment a Class D felony.
(15) Because the statutory distinction between private and public employees involves neither a suspect class nor a fundamental right, it is Dickens' burden to show that the distinction is either irrational or arbitrary. Because Dickens has failed to make any such showing, his claim that the statute is unconstitutional must fail. Moreover, we find no abuse of discretion in the judge's ruling that the State could properly rely on the statute to prosecute Dickens for his attack on Howell.
Abrams v. State, 689 A.2d 1185, 1188 (Del. 1997).
Id.
(16) Dickens' next claim that there was insufficient evidence presented at trial to sustain his convictions for Assault and Resisting Arrest is meritless. In reviewing a claim of insufficiency of the evidence, the inquiry of this Court is "whether any rational trier of fact, viewing the evidence in the light most favorable to the [State], could have found the essential elements of the charged offense beyond a reasonable doubt." The record clearly reflects that there was more than sufficient evidence to sustain Dickens' convictions for Assault and Resisting Arrest.
Morrisey v. State, 620 A.2d 207, 213 (Del. 1993).
DEL. CODE ANN. tit. 11, § 612(a)(8) (2001) ("The person intentionally causes physical injury to any state employee . . . when that employee is . . . discharging or attempting to discharge a duty of employment . . . .").
DEL. CODE ANN. tit. 11, § 1257 (2001) (". . . the person intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention . . . .").
(17) Dickens' final claim is that he was denied his right to counsel.
Specifically, Dickens contends that, when O'Shell Howell was on the witness stand testifying in his case in chief, the judge improperly refused to permit his standby counsel pick up a courtroom chair to demonstrate how Howell had used a chair to attack him rather than simply defend herself. Howell also complains that the judge improperly refused to allow standby counsel to pose questions to Howell during his trial testimony and, rather, required him to testify in narrative fashion.
(18) The trial judge was correct in refusing to permit standby counsel, who was not a witness to the incident, to demonstrate how Dickens alleged Howell held the chair at the time of the incident. Dickens himself could have provided the demonstration to the jury, but chose not to. Furthermore, the record reflects that the judge told Dickens that he would allow standby counsel to question him on the witness stand, but that, once that occurred, Dickens would relinquish his right to represent himself for the remainder of the trial. There was no error or abuse of discretion in the judge's ruling that, if Dickens chose to represent himself, he would have to testify in narrative fashion and that hybrid representation would not be permitted.
In re Carl J. Haskins, Jr., 551 A.2d 65, 66 (Del. 1988).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.