IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL WALKER,

Defendant BelowAppellant,

v.

STATE OF DELAWARE,

Plaintiff BelowAppellee.

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§ No. 324, 2016

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§

§

§ Court Below—Superior Court

§ of the State of Delaware

§ 

§ Cr. ID 1511009579

§

§

Submitted: October 20, 2016

Decided: January 3, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices.

O R D E R

This 3

rd day of January 2017, 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 June 2016, the defendant-appellant, Michael J. Walker, was 

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

by a Person Prohibited (“PFPP”). The Superior Court sentenced Walker to 

fifteen years at Level V incarceration, to be suspended after serving a 

minimum mandatory term of five years in prison for decreasing levels of 

supervision. This is Walker’s direct appeal.
2

(2) Walker’s counsel on appeal has filed a brief and a motion to 

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

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

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

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

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

right to supplement his attorney's presentation. 

(3) In response to his counsel’s Rule 26(c) brief, Walker submitted 

two points for the Court’s consideration. First, he contends that the gun 

should not have been admitted into evidence because the State failed to 

establish a continuing chain of custody. Second, he asserts that there was 

missing or tainted evidence because the officer who recovered the gun 

testified at trial that the gun she retrieved contained nine bullets (one in the 

chamber and eight in the magazine), however, the evidence envelope at trial 

contained the gun, magazine, and only eight bullets. Walker contends that

the missing bullet tainted the gun evidence, rendering all of the evidence in 

the envelope inadmissible. 

(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 
3

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 September 9, 2015, at approximately 1:45 A.M., 

Dover police were investigating a single vehicle collision near the Dover 

Country Club Apartments. The police officer who arrived on the scene 

observed Walker pacing beside the crashed vehicle. As the officer

approached him, Walker fled. During the ensuing foot chase, Walker ran to 

the nearby apartment complex. The officer lost sight of Walker several 

times before eventually apprehending him in the stairwell of Building B. 

(6) Several hours later, an employee of the apartment complex 

found a handgun behind a trash dumpster at Building F. The dumpster was 

located along the path of the earlier foot chase. Using a metal trash picker, 

the employee retrieved the weapon without touching it, put it in a bucket, 

and returned to the management office. The manager called the Dover

police. Officer Nicolosi came to retrieve the weapon. She disarmed it, took 

it back to the police station, and logged it into the police evidence locker. 

 

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).
4

Another officer later retrieved the gun from the evidence locker and 

conducted forensic testing, which revealed a latent fingerprint on the 

weapon. It was later established that the fingerprint came from Walker. At 

trial, Officer Nicolosi identified the weapon as the one she retrieved from the 

apartment. The gun, its magazine, and bullets were admitted into evidence 

without objection.

(7) Walker’s first argument on appeal is that the State failed to 

establish a sufficient chain of custody for the gun. Walker failed to raise any 

objection to the admission of the gun at trial. Thus, we review his claim on 

appeal for plain error.2Plain 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.3 

(8) Delaware Rule of Evidence 901(a) states that, “The requirement 

of authentication or identification as a condition precedent to admissibility is 

satisfied by evidence sufficient to support a finding that the matter in 

question is what its proponent claims.”4 The State may authenticate 

evidence either by having a witness identify the item as that which was 

actually involved in the crime or by establishing a chain of custody for the 

 

2 Guy v. State, 913 A.2d 558, 564 (Del. 2006).

3 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).

4 D.R.E. 901(a) (2016).
5

item to ensure the identity and integrity of the evidence by tracing its 

whereabouts.5 The authentication requirement is “lenient”

6

and only 

requires the State to eliminate the possibility of misidentification or 

adulteration as a matter of reasonable probability.7

(9) In this case, the State presented evidence that the gun was found 

by an employee of the apartment complex where Walker was arrested. The 

employee stated that he did not touch the gun with his hands and that he 

turned the gun over to the manager, who then called police. Officer Nicolosi 

testified that she retrieved the gun from the manager. She made the weapon 

safe by emptying the round in the chamber and removing the magazine. She 

placed these items in a bag. Upon returning to the police station, she placed 

the bag in an evidence locker. Another officer testified to retrieving the bag 

from the evidence locker and conducting tests on the evidence. Both 

officers identified the gun at trial as the one that had been placed into and 

retrieved from the police evidence locker. Under these circumstances, we 

find no plain error in the admission of the gun into evidence at trial.

(10) Walker’s second claim on appeal relates to Officer Nicolosi’s 

testimony at trial that the gun she retrieved contained nine bullets (one in the 

 

5 Guinn v. State, 841 A.2d 1239, 1241 (Del. 2004).

6 Whitfield v. State, 524 A.2d 13, 16 (Del. 1987).

7

Tricoche v. State, 525 A.2d 151, 153 (Del. 1987).
6

chamber and eight in the magazine), which were logged into the police 

evidence locker along with the gun. Only eight bullets were admitted with 

the gun into evidence at trial, however. Walker contends that the missing 

bullet rendered both the gun and the fingerprint retrieved from the gun 

inadmissible.

(11) We disagree. Any discrepancies between the description of the 

evidence logged into the police locker and the evidence admitted at trial 

goes to the weight to be afforded to the evidence and not to its 

admissibility.8 In this case, there was sufficient evidence for the judge, 

sitting as the trier of fact, to conclude beyond a reasonable doubt that the gun 

found within hours after Walker’s flight from the police, containing his 

fingerprint, had been recently possessed by Walker and that Walker, because 

of his prior record, was a person prohibited from possessing a gun.

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

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

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

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

determined that Walker could not raise a meritorious claim in this appeal.

 

8 Demby v. State, 695 A.2d 1127, 1132 (Del. 1997).
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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/ James T. Vaughn, Jr.

Justice