         IN THE SUPREME COURT OF THE STATE OF DELAWARE

  ELI ESCALERA,                          §
                                         §   No. 329, 2017
        Defendant Below,                 §
        Appellant,                       §
                                         §   Court Below—Superior Court
        v.                               §   of the State of Delaware
                                         §
  STATE OF DELAWARE,                     §   Cr. ID No. 1606024326A&B (N)
                                         §
        Plaintiff Below,                 §
        Appellee.                        §

                           Submitted: May 9, 2018
                           Decided:   May 25, 2018

Before VALIHURA, SEITZ and TRAYNOR, Justices.

                                     ORDER

      This 25th day of May 2018, having considered the briefs and the record below,

it appears to the Court that:

             The State accused Eli Escalera of threatening another person with a

knife. A jury convicted him of aggravated menacing, possession of a deadly weapon

during the commission of a felony, and disorderly conduct. Escalera was also a

person prohibited from possessing a deadly weapon and, after the jury returned its

verdict, he was tried and found guilty at a bench trial of a person-prohibited charge.

On the basis of the person-prohibited conviction, he was declared a habitual

offender, and the Superior Court sentenced him to twenty-five years of

imprisonment.
                Escalera’s theory at trial was that he was never in possession of a knife

and that a knife the police recovered—which they found in a grassy area near where

the confrontation occurred—did not belong to him. Notably, however, he told law

enforcement that “his DNA would be on the knife because he threw it.”1 As it turned

out, a DNA test of the knife did not find his DNA, but he was convicted anyway.

His sole contention on appeal is that the prosecutor, during her closing argument,

mischaracterized the nature of the DNA testing that the State performed on the knife

to make it seem as though the test was less comprehensive—and thus more likely to

have simply missed collecting his DNA—than the test actually was. He claims that

her mischaracterization of the record—and the trial court’s failure to adequately

address it—prejudiced his defense.

                At trial, it was undisputed that the detective used two swabs to swab the

knife at two locations and that one swab returned a partial DNA profile that was not

consistent with Escalera’s while the other swab did not contain enough DNA

material to draw any conclusions.

                During his closing argument, Escalera’s counsel argued that this

inconclusive DNA evidence tended to exonerate Escalera, going so far as to tell the

jury that “we know that Mr. Escalera’s DNA is not on the knife.”2 The prosecution



1
    App. to Answering Br. B45.
2
    App. to Opening Br. A026.


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attempted during its rebuttal to identify the locations on the knife that were swabbed

and observed, among other things, that “there is no testimony about whether the

defendant’s DNA is anywhere else on [the] knife.”3

              According to Escalera, the prosecutor’s rebuttal argument, to which he

objected twice, mistakenly suggested that the two areas on the knife that were tested

were each swabbed only once—with one swab being used to swab one area, and the

other swab being used to swab the other area—rather than both areas each being

swabbed twice (once with each of the two swabs). In his view, if both swabs were

applied to both parts of the knife—which is arguably more consistent with the

detective’s testimony—that would make it less likely that his DNA was simply

missed, and more likely that his DNA was not there. The trial judge sustained both

of Escalera’s objections and, in between the two putatively misleading comments,

provided a curative instruction:

       Closing arguments are required to be limited to the evidence presented,
       and the State misspoke when she said two different locations of the
       knife. That was not testimony. You can continue.4

              Prosecutors are allowed to “comment on the evidence and the

reasonable inferences therefrom,”5 provided they stay within the bounds of “the facts

of the case”6 and do not “misstate the evidence or mislead the jury as to the

3
  Id. at A028.
4
  Id.
5
  Hughes v. State, 437 A.2d 559, 573 (Del. 1981).
6
  Hooks v. State, 416 A.2d 189, 206 (Del. 1980).


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inferences it may draw.”7 But an improper remark does not require a new trial unless

it “prejudicially affect[ed] the ‘substantial rights’ of the accused.”8 That translates to

what is “essentially review for ‘harmless error,’”9 and it takes the form of two-step

inquiry. First, the prosecutor’s actions are reviewed de novo to determine whether

they were “improper.”10 If so, three factors must then be evaluated to determine

whether the defendant suffered reversible prejudice: “(1) the closeness of the case,

(2) the centrality of the issue affected by the error, and (3) the steps taken to mitigate

the effects of the error.”11

               It   is questionable       here       whether the prosecutor’s         statement

mischaracterized the record, which is not a model of clarity regarding the number of

swabs and the locations on the knife swabbed by each. But even if the prosecutor

mischaracterized the DNA collection, the misstep does not rise to the level of

reversible error.

               First, this was not a particularly close case. Escalera’s defense is that

he had no knife, but both the victim and a responding police officer testified that

they saw Escalera with a knife, they each positively identified the knife at trial, and



7
  Daniels v. State, 859 A.2d 1008, 1011 (Del. 2004) (quoting Sexton v. State, 397 A.2d 540, 545
(Del. 1979)).
8
  Id.
9
  Baker v. State, 906 A.2d 139, 148 (Del. 2006).
10
   Spence v. State, 129 A.3d 212, 219 (Del. 2015).
11
   Id. (citing Hughes, 437 A.2d at 571); see Daniels, 859 A.2d at 1011–12 (applying this framework
to a claim that a “prosecutor mischaracterized the significance of the DNA evidence”).


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a knife matching the victim’s description was recovered from the approximate area

where she testified that she saw Escalera dispose of it. Moreover, Escalera told the

officer who collected the DNA sample from Escalera that “his DNA would be on

the knife because he threw it and that other people’s DNA would also be on the

knife.”12

                Second, the prosecutor’s misstatement—if it was a misstatement—did

not strike at a central issue. This is not a case where the prosecutor mischaracterized

the outcome of a DNA test, such as by suggesting that an inconclusive test was

incriminating or an exculpatory test was inconclusive. For Escalera, the most this

DNA test could have established was an absence of evidence—that his DNA was

not recovered from the swabs. The difference between his reading of how the test

was performed and the characterization he believes that the prosecutor imparted to

the jury related only to how thoroughly the knife was tested; neither reading could

have definitely exonerated him or incriminated him.

                Finally, the trial court responded adequately to remedy the prosecutor’s

purported mischaracterization. Escalera believes that the trial judge should have

given a second curative instruction after his counsel’s second objection, but the

statement that Escalera is most concerned about—the prosecutor’s suggestion that

the two swabs were taken from “two different portions of the knife”—occurred prior


12
     App. to Answering Br. B45.


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to his first objection. The trial judge responded to that objection both by correcting

the record (telling the jury, “There was no evidence where the swabs were taken

from”) and by reminding the jury that “[c]losing arguments are required to be limited

to the evidence presented.” Escalera’s second objection was in response to the

prosecutor’s statement that “[o]nly certain portions of the knife were swabbed by

Detective Pantalone,”13 but that statement was a fair characterization of the

detective’s testimony, who testified that he “swabbed the thumb screw area and the

serrated portion of the blocking mechanism because [he] figured that’s the first thing

someone would probably touch.” In any event, the trial judge sustained his second

objection, and the prosecutor then moved on. Given that the trial judge had reminded

the jury only moments before that attorney summations are not evidence, repeating

the instruction a second time was unnecessary to dispel any prejudice Escalera might

have suffered.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court be AFFIRMED

                                            BY THE COURT:

                                            /s/ Gary F. Traynor
                                            Justice




13
  See Opening Br. 9 (“Shortly thereafter the State remarked that ‘[o]nly certain portions of the
knife were swabbed by Det. Pantalone,’ and the Defendant again objected.” (citation omitted)).


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