           IN THE SUPREME COURT OF THE STATE OF DELAWARE

DERRICK CROSBY,                        §
                                       §     No. 180, 2014
      Defendant Below-                 §
      Appellant,                       §     Court Below: Superior Court
                                       §     of the State of Delaware in
      v.                               §     and for New Castle County
                                       §
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below-                 §
      Appellee.                        §

                          Submitted: January 14, 2015
                           Decided: January 15, 2015

Before STRINE, Chief Justice; RIDGELY and VALIHURA, Justices.

Bernard J. O’Donnell, Esquire, Office of Public Defender, Wilmington, Delaware,
for Appellant.
Morgan T. Zurn, Esquire, Department of Justice, Wilmington, Delaware, for
Appellee.




STRINE, Chief Justice:
       Derrick Crosby was convicted by a jury of second degree robbery and second

degree conspiracy. He was arrested within minutes of the alleged crime, because the

robbery was committed against a police informant who had arranged to purchase a gun

from co-defendant Rakim Huggins as part of a police sting operation. The police were

therefore monitoring the scene in close vicinity. Instead of selling the informant the gun,

Huggins and an accomplice robbed the informant at gunpoint. The informant testified

that Huggins pulled out a revolver and used his other hand to take $500 from the

informant’s jacket pocket. The accomplice then opened the driver’s seat door, rifled

through the informant’s pockets, and took his cell phone from the door console.

       When the gun purchase did not go as planned, the informant alerted the police

with whom he was working and they moved in quickly. About a minute after the robbery

took place, police spotted Huggins and Crosby walking together. Huggins was arrested

and the informant identified him as one of his assailants. Crosby was also arrested

promptly, and had in his possession the informant’s cell phone. But the informant could

not make a positive identification that Crosby was Huggins’ accomplice in committing

the robbery.

       In this appeal, Crosby argues that his counsel was unfairly limited in presenting a

closing argument on his behalf. Specifically, Crosby argues that the Superior Court erred

by sustaining an objection by the State to any argument that Crosby could have obtained

the informant’s cell phone from Huggins’ accomplice. The Superior Court reasoned that

there was no evidence in the record that supported a rational inference that, in the limited

time between when the informant was robbed and when Crosby was arrested, Huggins’
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accomplice turned over the cell phone to Crosby and then left the scene. But the Superior

Court did allow Crosby’s attorney to argue that “there’s a fair inference that someone

other than Mr. Crosby committed this robbery and that there were ways in which

[Crosby] came into possession of the cell phone after the incident.”1

       We review a trial judge’s determination of the proper bounds of closing arguments

for abuse of discretion.2 Although a trial court should be cautious about restricting

defense counsel’s ability to argue that the State has not ruled out possible scenarios

beyond a reasonable doubt, the trial judge has the discretion to restrict arguments that

have no rational basis in the evidentiary record.3 In this case, there was no evidence to

suggest that Huggins’ accomplice passed the informant’s cell phone to Crosby in the

brief period between when the informant was robbed and when Crosby was arrested

(which may have been less than one minute in total). In light of the record, the Superior

Court did not abuse its discretion in limiting the defense attorney’s closing argument in

the specific way it did, and leaving the defense the opportunity, as was taken, to make the

more general argument that there were many ways in which Crosby could have come into

possession of the informant’s cell phone. Furthermore, the Superior Court permitted the

defense to argue that Crosby was not the robber and to suggest, by use of the informant’s

inability to identify Crosby, that Huggins had another accomplice who was not Crosby.


1
  Opening Br. Ex. A at 134.
2
  See Brown v. State, 49 A.3d 1158, 1159 (Del. 2012); Anderson v. State, 930 A.2d 898, 904
(Del. 2007).
3
  See State v. Bennefield, 567 A.2d 863, 867 (Del. 1989) (quoting Standard 4.7.8(a) of the ABA
Standards for Criminal Justice, which states that a closing argument by defense counsel should
be limited to “all reasonable inferences from the evidence in the record”).
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       Although we find that the trial court did not abuse its discretion in this case, we

caution that trial judges must be mindful of the distinctions that exist between the civil

and criminal context in addressing objections to defense counsel’s closing argument. In a

criminal case, it is the State’s burden to prove to the jury’s satisfaction that there is no

reasonable doubt that the defendant committed the crime.4 The defendant has a

constitutional right not to testify and is under no burden to introduce evidence of his lack

of guilt.5 Therefore, it is traditional for a defense attorney’s closing argument to stress

that the State’s evidence is insufficient to rule out other reasonable scenarios under which

the defendant did not commit the crime of which he is accused.6 That does not, of

course, give defense counsel license to misrepresent the record or invent facts.7 But it is

normally appropriate and indeed required for defense counsel to point out all the material

weaknesses and gaps in the State’s case and to argue that they leave open factual




4
  See In re Winship, 397 U.S. 358, 364 (1970).
5
  See, e.g., Griffin v. California, 380 U.S. 609 (1965) (recognizing that a defendant cannot be
penalized for exercising his constitutional right to remain silent by prosecutorial suggestions that
silence implies guilt); JACOB A. STEIN, CLOSING ARGUMENTS § 1:108 (2014-2015 ed.) (“In the
context of criminal prosecutions, it is generally improper for the prosecutor to suggest that the
defendant has the burden of proof or any obligation to produce evidence to prove
his innocence.”).
6
  See, e.g., 2 CRIMINAL PRACTICE MANUAL § 57:9 (2014) (“It is almost universally permissible to
mention [the state’s burden to prove guilt beyond a reasonable doubt in closing arguments], and
most jurisdictions permit counsel to explain it during argument.”); JACOB A. STEIN, CLOSING
ARGUMENTS § 2:4 (2014-2015 ed.) (“In a criminal case, reasonable doubt is the best witness. . . .
[U]nder our criminal justice system, the defendant is presumed innocent until proven guilty, and
it is the prosecution’s job to prove guilt. Finally, the prosecution’s burden of proof is a heavy
one, they must prove that the defendant is guilty beyond a reasonable doubt.”).
7
  See Bennefield, 567 A.2d at 867 (“Counsel’s characterizations and use of descriptive terms are
not impermissible to the extent they are based upon and supported by the record and fair
inferences therefrom.”).
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circumstances under which the defendant would not be guilty.8 And, it is, of course,

during closing argument that opposing counsel and the trial court itself should be the

most restrained in interrupting the flow of counsel’s argument.9

       But because the trial judge in this case did allow defense counsel to argue that the

State had not ruled out the reasonable possibility that Huggins had an accomplice other

than Crosby (by stressing that the informant could not make a positive identification of

Crosby), and suggest that there were many ways that Crosby could have come into

possession of the cell phone other than being Huggins’ accomplice, we cannot find that

the Superior Court abused its discretion, especially given the undisputed fact that Crosby

was arrested within minutes of the robbery.

       For these reasons, we AFFIRM the judgment of convictions of the Superior Court.




8
  See, e.g., Herring v. New York, 422 U.S. 853 (1975) (holding that the closing argument plays a
central role in the adversary system because “[o]nly then can [the attorneys] argue the inferences
to be drawn from all the testimony, and point out the weaknesses of their adversaries’
positions”).
9
  See WAYNE LAFAVE ET. AL., 6 CRIMINAL PROCEDURE § 24.7(b) (3d ed. 2007) (“The closing
argument traditionally has been the one place in the trial where counsel is given greatest leeway
in manner of expression even as the courts strive also to bar the excesses of the overzealous
advocate.”).
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