FRANKLIN v. STATE, 930 A.2d 928 (Del. 2007)

No. 427, 2006.Supreme Court of Delaware.
June 28, 2007.

Court Below — Superior Court of the State of Delaware, in and for Kent County, Cr. ID 0512002190.

Before BERGER, JACOBS, andRIDGELY, Justices.

ORDER
JACK B. JACOBS, Justice.

This 28th day of June 2007, upon consideration of the parties’ briefs and the record on appeal, it appears to the Court that:

(1) A Superior Court jury convicted the appellant James Franklin of possession of a deadly weapon by a person prohibited, driving without a license, and failure to have a valid insurance card, but acquitted him on the charge of carrying a concealed deadly weapon. The Superior Court sentenced Franklin as a habitual offender to a total period of two years at Level V incarceration followed by a six-month period of probation, plus fines. This is Franklin’s direct appeal from his convictions and sentence.

(2) Franklin was represented at trial by court-appointed counsel. After the notice of appeal was filed, Franklin filed an affidavit requesting leave to dismiss his counsel and to represent himself on appeal. We remanded the matter to the Superior Court for a hearing on Franklin’s request. The Superior Court determined that Franklin’s request to waive his right to counsel on appeal was made intelligently and voluntarily with full knowledge of the hazards of self-representation. After the matter was returned from remand, this Court granted Franklin’s request to exercise his right to self-representation and dismissed his counsel.

(3) Franklin filed his pro se opening brief on appeal, which raises three issues for the Court’s consideration. First, Franklin contends that the Superior Court erred when it permitted the charge of possession of a deadly weapon by a person prohibited to be tried with the other three counts of the indictment. Second, Franklin asserts that the Superior Court erred in denying his motion for an evidentiary hearing and in failing to void the search warrant affidavit. Finally, Franklin argues that he was deprived of his constitutional right to the effective assistance of counsel. We will not address Franklin’s ineffectiveness claim, however, for the first time on direct appeal.[1]

(4) With respect to the two remaining claims, we find the record at trial fairly supports the following version of events leading to Franklin’s arrest: On December 3, 2005, Dover Officer Jennifer King stopped a 1993 Ford Crown Victoria after receiving a stolen vehicle report. Franklin was driving the vehicle, and his girlfriend, Rose Smith, was in the front passenger seat. Officer King asked both occupants to step out of the vehicle. Upon doing so, Officer King observed a knife fall to the ground near Smith. Upon being arrested on suspected auto theft, Franklin was given his Miranda rights and then made a statement to Officer King. During the course of the interrogation, Franklin told Officer King that the knife was “ours.” He later stated that the knife was “mine.” Franklin told Officer King that the glove compartment on the car was broken, so the knife had been on the front seat. Franklin apologized for the knife being in the car.

(5) Rose Smith was the only defense witness. She testified that the knife was hers and that she believed the knife had fallen out of her coat pocket when she stepped out of the vehicle. Smith further testified that she already had pled guilty to a charge of carrying a concealed deadly weapon as a result of the December 2005 arrest. During the State’s rebuttal, Officer King testified that she also had taken a statement from Smith on December 3, 2005 and that Smith had never indicated that the knife had fallen out of her coat pocket. Officer King also testified that Smith stated that the knife was on the car seat and that it was “ours.”

(6) Franklin’s first contention on appeal is that the Superior Court erred in trying all four charges in one proceeding. In essence, Franklin asserts that the charge of possession of a deadly weapon by a person prohibited should have been severed from the other charges because proof of that charge required admission into evidence of Franklin’s prior felony conviction, even though Franklin did not take the stand and testify. Because this argument was not raised below, we review it on appeal for plain error.[2] To be plain, the alleged error must be so clearly prejudicial to Franklin’s substantial rights as to have jeopardized the fairness of the trial proceedings.[3]

(7) We find no plain error in this case because no prejudice to Franklin’s rights has been shown. Of the four charges against him, Franklin did not dispute the two motor vehicle charges, and the jury acquitted him of the charge of carrying a concealed deadly weapon. We find the evidence on the record with respect to the fourth charge, possession of a deadly weapon by a person prohibited, more than sufficient to support the jury’s guilty verdict.[4] Thus, even if that charge had been tried separately from the other three charges, we find that the outcome for Franklin would have been no different. Moreover, we find the jury’s acquittal of Franklin on the charge of carrying a concealed deadly weapon clearly indicates that the jury followed the trial judge’s instruction not to draw any improper inference from Franklin’s prior felony conviction.[5]

(9) Franklin’s next argument relates to an inconsistency between the trial testimony of the arresting officer, Jennifer King, and a statement she made in the probable cause affidavit. King’s probable cause affidavit stated that she located the knife during a search of the front seat of the vehicle. At trial, however, King testified that she found the knife on the ground where it fell after Smith exited the vehicle. Defense counsel confronted King about this inconsistency during cross-examination.

(10) Franklin argues that this inconsistency is evidence that King lied in her probable cause affidavit and was grounds for a mistrial. We disagree. Alleged inconsistencies in a witness’ statements go only to the weight to be accorded to the witness’ testimony, not to its admissibility.[6] The jury is the sole judge of a witness’ credibility and is responsible for resolving conflicts in the testimony.[7] In fulfilling its duty, the jury must consider all of the evidence but is free, in its discretion, to accept part of a witness’ testimony while rejecting other parts.[8] In this case, defense counsel cross-examined King regarding the inconsistency between the probable cause affidavit and her trial testimony. The jury was free to accept King’s trial testimony as credible. The jury’s verdict will not be set aside merely because it is based upon conflicting evidence.[9]

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.