Benjamin v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KALVIN BENJAMIN, §
§ No. 72, 2024
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 2110002285 (N)
STATE OF DELAWARE, §
§
Appellee. §

Submitted: September 19, 2024
Decided: November 7, 2024

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

After consideration of the appellant’s Supreme Court Rule 26(c) brief, the

State’s response, and the record on appeal, it appears to the Court that:

(1) A Superior Court jury found the appellant, Kalvin Benjamin, guilty of

stalking, strangulation, and offensive touching. The Superior Court sentenced

Benjamin to five years and thirty days of Level V incarceration, followed by

eighteen months of Level III GPS supervision. This is Benjamin’s direct appeal.

(2) The evidence presented at trial established that Benjamin and his ex-

wife Tracy Simmons reconnected as friends in the spring of 2021. Benjamin would

come to Simmons’ apartment and they would cook or go out together. Benjamin
would also spend time with Simmons when she was on a break from her job as a toll

collector.

(3) During the summer of 2021, Simmons loaned Benjamin one of her cars

on the condition that he pay for the lease. After Benjamin fell behind on the lease

payments and had accidents with the car, Simmons decided to end the arrangement.

She also discouraged Benjamin from appearing unannounced at her apartment where

she lived by herself, but he continued to do so anyway.

(4) At the end of August, Benjamin sent Simmons multiple texts

complaining that she was ignoring him. Simmons told Benjamin not to call her or

come to her home until he returned the car to her. Benjamin responded angrily to

Simmons’ request for the return of her car and the parties exchanged accusatory

texts. Benjamin threatened to come to Simmons’ place and repeatedly called her

names. Simmons told Benjamin to leave her alone. At the end of September,

Benjamin sent Simmons texts demanding to know where she was. Simmons told

Benjamin to stay away from her, but Benjamin said he would come to her home and

continued to send texts demanding that she respond to him.

(5) On October 5, 2021, Benjamin sent Simmons texts asking if she was at

work. Simmons said yes, but did not respond to Benjamin’s texts regarding when

she would be on break. When Benjamin asked if Simmons had taken her last break,

she said yes. Shortly after Simmons got home, Benjamin arrived without warning.

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Simmons was unwilling to speak with Benjamin, but agreed to let him in so he could

use the bathroom. After using the bathroom, Benjamin began screaming at Simmons

and accusing of her lying about being at work. He grabbed Simmons and choked

her by putting his hand around her neck and squeezing. He also punched her.

(6) During the struggle, Benjamin took Simmons’ phone. Simmons, who

had a gun in her purse that Benjamin knew about, put her hand in her purse so that

Benjamin would give her phone back to her. Benjamin threw the phone at Simmons,

who then called 911. Benjamin left before the police arrived. The police took

photographs of Simmons’ injuries, including bruises on her neck and face. Shortly

after the police departed, Benjamin returned to the apartment and yelled at Simmons

to let him in. Simmons called the police, who returned and did not find Benjamin.

Benjamin subsequently sent Simmons texts accusing her of being a liar.

(7) Simmons sought medical treatment on October 11, 2021. A forensic

nurse testified that the photographs and the October 11 medical records were

consistent with strangulation. At the conclusion of the State’s case, Benjamin moved

for a judgment of acquittal on the stalking charge. The Superior Court denied the

motion. Based on Simmons’ testimony that Benjamin knew she had a gun in her

purse and that she intentionally reached into her purse during the struggle to make

Benjamin think she was getting the gun, the Superior Court granted, over the State’s

objection, Benjamin’s request for a jury instruction on self-defense.

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(8) The jury found Benjamin guilty of stalking, strangulation, and

offensive touching. At sentencing on February 16, 2024, the Superior Court

sentenced Benjamin as follows: (i) for stalking, effective October 6, 2021, one year

of Level V incarceration; (ii) for strangulation, four years of Level V incarceration

followed by eighteen months of Level III GPS probation; and (iii) for offensive

touching, thirty 30 days of Level V incarceration. This appeal followed.

(9) On appeal, Benjamin’s appellate counsel (“Counsel”) filed a brief and

a motion to withdraw under Supreme Court Rule 26(c). Counsel asserts that, based

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

appealable issues. Counsel informed Benjamin of the provisions of Rule 26(c) and

provided Benjamin with a copy of the motion to withdraw and the accompanying

brief.

(10) Counsel also informed Benjamin of his right to identify any points he

wished this Court to consider on appeal. Benjamin has raised points for this Court’s

consideration. The State has responded to the Rule 26(c) brief and has moved to

affirm the Superior Court’s judgment.

(11) When reviewing a motion to withdraw and an accompanying brief

under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a

conscientious examination of the record and the law for arguable claims; and (ii)

conduct its own review of the record and determine whether the appeal is so totally

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devoid of at least arguably appealable issues that it can be decided without an

adversary presentation.1

(12) Benjamin’s arguments on appeal may be summarized as follows: (i) his

right to a speedy trial was violated; (ii) his right to speedy sentencing was violated;

and (iii) the testimony of the forensic nurse and the admission of Simmons’ medical

records violated his right to confront witnesses against him.

(13) Benjamin did not assert his right to a speedy trial in the Superior Court

so we review for plain error.2 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.”3 To determine whether Benjamin’s Sixth

Amendment right to a speedy trial was violated, we use the four-factor balancing

test set forth in Barker v. Wingo.4 The four factors are the length of the delay, the

reason for the delay, the defendant’s assertion of his right, and the prejudice to the

defendant.5 The factors are related and no one factor is conclusive.6

1
Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
2
Supr. Ct. R. 8; Page v. State, 934 A.2d 891, 896 (Del. 2007).
3
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
4
407 U.S. 514 (1972). See also Johnson v. State, 305 A.2d 622, 623 (Del. 1973) (adopting Barker
test)).
5
Barker, 407 U.S. at 530.
6
Id. at 533.

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(14) A defendant’s right to a speedy trial “attaches as soon as the defendant

is accused of a crime through arrest or indictment, whichever occurs first.”7 Unless

the length of delay is determined to be “presumptively prejudicial,” it is not

necessary to consider the additional Barker factors.8 If the delay between arrest or

indictment (whichever occurs first) and the start of trial exceeds one year, this Court

will generally consider the additional factors.9

(15) More than one year passed between Benjamin’s arrest (October 6,

2021) and the commencement of trial (May 8, 2023) so we consider the additional

Barker factors, starting with the reason for the delay. Some of the delay between

Benjamin’s arrest and trial is attributable to the COVID-19 pandemic and some is

attributable to the State. When the judicial emergency in effect as a result of the

COVID-19 pandemic expired on July 13, 2021, the Speedy Trial Guidelines were

amended to provide that certain provisions (including that 100% of all criminal cases

be adjudicated to guilt or innocence within one year of indictment) did not apply to

Superior Court cases pending between March 16, 2020, and December 31, 2021.10

Benjamin’s case fell within this time period because the Superior Court accepted it

on November 2, 2021. The Superior Court was directed to prioritize cases like

7
Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002).
8
Id.
9
Cooper v. State, 2011 WL 6039613, at *7 (Del. Dec. 5, 2011).
10
Administrative Order No. 22 ¶ 3; Administrative Order No. 22, Ex. 1 § (a)(iv).

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Benjamin’s as it determined “to be in the best interests of justice and of allowing for

the prompt and efficient management of the caseload resulting from the COVID-19

pandemic.”11 Benjamin’s trial was originally scheduled for March 6, 2023, but was

postponed twice at the request of the prosecutor because she was scheduled for other

trials. Even though the Speedy Trial Guideline requirement that 100% of Superior

Court cases be resolved within one year of the indictment did not apply to

Benjamin’s case, he was still adjudicated as to guilt within one year of his

indictment.

(16) Because Benjamin did not assert his right to a speedy trial in the

Superior Court, this factor weighs in favor of the State. The last Barker factor—

prejudice to the defendant—also weighs in the State’s favor. Benjamin has not

identified any prejudice that he suffered from the delay or shown that the delay

impaired his defense. Having weighed the Barker factors, we conclude that there

was no violation of Benjamin’s constitutional right to a speedy trial.

(17) Benjamin did not assert his right to speedy sentencing in the Superior

Court, so we also review this claim for plain error.12 We assume that Benjamin had

a constitutional right to speedy sentencing and again apply the Barker factors.13 In

the speedy sentencing context, “[t]he alteration of defendant’s status from accused

11
Administrative Order No. 22, Ex. 1 § (a)(iv).
12
See supra n.2.
13
Harris v. State, 956 A.2d 1273, 1275 (Del. 2008).

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and presumed innocent to guilty and awaiting sentence is a significant change which

must be taken into account in the balancing process.”14

(18) As the State notes, there is less than a year between Benjamin’s

adjudication of guilt (May 10, 2023) and his sentencing (February 16, 2024). This

period is, however, longer that the sixty days for cases where a presentence

investigation is ordered as set forth in the Speedy Trial Guidelines.15 After the

reading of the verdict in this case, the Superior Court ordered a presentence

investigation. The Superior Court initially ruled that sentencing would take place

on July 14, 2023, but also directed that sentencing would occur at the same as

Benjamin’s violation-of-probation hearing in a different case. The record does not

indicate why sentencing did not occur on July 14, 2023.

(19) At the end of August 2023, the State filed a motion to declare Benjamin

a habitual offender. Benjamin filed an answer to the motion on October 2, 2023.

The State filed a response and amended motion on October 24, 2023. After an office

conference on November 16, 2023, the Superior Court denied the State’s motion to

declare Benjamin a habitual offender on November 27, 2023. Sentencing occurred

on February 16, 2024. Even assuming the delay in sentencing is attributable to the

State, the remaining factors do not weigh in Benjamin’s favor. Benjamin did not

14
Id. at 1275 (quoting Perez v. Sullivan, 793 F.2d 249, 254 (10th Cir.1986)).
15
Administrative Order No. 22 Ex. 1 § (a)(ii) (“In all cases in which a presentence report has been
ordered, the sentencing shall take place within sixty (60) days of the date of the plea or verdict.”).

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assert his right to speedy sentencing in the Superior Court and has not identified any

prejudice he suffered as a result of the delay. There was no violation of Benjamin’s

right to speedy sentencing.

(20) We turn to Benjamin’s contention that the testimony of the forensic

nurse and the admission of Simmons’ medical records violated his Sixth

Amendment right to confront witnesses against him. The Confrontation Clause of

the Sixth Amendment “bars the prosecution from introducing the testimonial

statements of witnesses absent from trial unless the witness is unavailable and the

defendant has had a prior opportunity to cross-examine him.”16 Simmons argues

that he had a right to confront the “forensic analyst” who prepared “the report” that

the forensic nurse relied upon for her testimony.17

(21) When the forensic nurse began to testify about her review of Simmons’

medical records and the signs of strangulation, Benjamin objected that she had not

prepared her own report and could not testify as an expert based on records and

interviews she had not prepared or conducted herself. The prosecutor responded that

she had notified Benjamin of her intent to call a forensic nurse to testify as an expert

on strangulation. After reviewing the State’s Superior Court Criminal Rule 16

response, which disclosed that the State intended to call a forensic nurse to testify as

16
Chavis v. State, 227 A.3d 1079, 1088 (Del. 2020) (citing Crawford v. Washington, 541 U.S. 36,
59 (2004)).
17
Non-Merit Br., Ex. B at 4-5.

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an expert on strangulation and whether Simmons’ injuries were indicative of

strangulation, the Superior Court overruled Benjamin’s objection.

(22) Because Benjamin did not object to the forensic nurse’s testimony

based on a violation of his Sixth Amendment right to confrontation, our review is

limited to plain error.18 Benjamin relies on the United State Supreme Court’s

decisions in Melendez-Diaz v. Massachusetts19 and Bullcoming v. New Mexico20 to

argue that his right to confrontation was violated. This reliance is misplaced. In

Melendez-Diaz, the Supreme Court held that the defendant was entitled to confront

at trial the laboratory analysts who prepared certificates reporting the results of

testing to determine the composition and weight of a substance (cocaine) because

those certificates were testimonial.21 In Bullcoming, the Court held that the

Confrontation Clause did not permit admission of a forensic laboratory report

certifying the defendant’s blood-alcohol concentration “through the in-court

testimony of a scientist who did not sign the certification or perform or observe the

test reported in the certification.”22

(23) In this case, however, the forensic nurse did not rely upon the results of

forensic testing performed by an absent analyst for her testimony. She relied upon

18
See supra n.2.
19
557 U.S. 305 (2012).
20
564 U.S. 647 (2011).
21
Melendez-Diaz, 557 U.S. at 311.
22
Bullcoming, 564 U.S. at 652.

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statements, in medical records, that Simmons made to obtain medical treatment. As

the Supreme Court stated in Melendez-Diaz, “medical reports created for treatment

purposes” are not testimonial statements covered by the Confrontation Clause.23

Statements that Simmons made to medical providers about her symptoms and the

cause of those symptoms did not constitute hearsay.24 In addition, Benjamin was

notified of the State’s intent to submit Simmons’ medical records under D.R.E.

803(6) (providing that records of a regularly conducted activity are not hearsay) and

D.R.E. 902(11) (providing that certified records of a regularly conducted activity are

self-authenticating) and did not object to the admission of the records. The

admission of the forensic nurse’s testimony and Simmons’ medical records did not

constitute plain error.

(24) Finally, the offensive touching sentence in the sentencing order is

inconsistent with the sentence imposed by the Superior Court during sentencing. At

the sentencing hearing, the Superior Court sentenced Benjamin to thirty days of

Level V incarceration for offensive touching. The sentencing order, however,

describes the sentence for offensive touching as thirty months of Level V

incarceration. As this Court has previously recognized in the context of sentencing

errors, the “Superior Court may, at any time, correct ‘[c]lerical mistakes in

23
Melendez-Diaz, 557 U.S. at 312 n.2.
24
Delaware Uniform Rule of Evidence (“D.R.E.”) 803(4).

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judgments, orders or other parts of the records and errors in the record arising from

oversight of omission.’”25 We will remand the matter to the Superior Court for the

limited purpose of issuing a corrected sentencing order.

(25) This Court has reviewed the record carefully and has concluded that

Benjamin’s appeal is wholly without merit and devoid of any arguably appealable

issue. We also are satisfied that Counsel has made a conscientious effort to examine

the record and the law and has properly determined that Benjamin could not raise a

meritorious claim in this appeal.

NOW, THEREFORE, IT IS ORDERED that this matter is remanded to the

Superior Court for correction of the clerical error in the sentencing order. In all other

respects, the judgment of the Superior Court is AFFIRMED. The motion to

withdraw is moot. Jurisdiction is not retained.

BY THE COURT:

/s/Karen L. Valihura
Justice

25
Puller v. State, 2023 WL 1099179, at *2 (Del. Jan. 27, 2023) (quoting Super. Ct. Crim. R. 36).

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