         IN THE SUPREME COURT OF THE STATE OF DELAWARE

GUY JONES,                               §
                                         §   No. 489, 2018
      Defendant Below,                   §
      Appellant,                         §   Court Below: Superior Court
                                         §   of the State of Delaware
             v.                          §
                                         §   Cr. ID: K1701006494
STATE OF DELAWARE,                       §
                                         §
      Plaintiff Below,                   §
      Appellee.                          §

                          Submitted: June 5, 2019
                          Decided:   July 16, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

                                    ORDER

      (1)    After a Superior Court jury trial, Guy Jones was convicted of a number

of charges, including first-degree murder. In this direct appeal, Jones claims eight

bases for relief, although several involve overlapping issues. We reject Jones’s

claims and affirm the judgment of the Superior Court.

      (2)    Several of Jones’s arguments are identical or nearly identical to those

advanced by his codefendant, DePaul Wilson, in a separate appeal. Although this

Court’s disposition of Wilson’s appeal has no direct preclusive effect upon Jones’s

claims, we find no error with our earlier affirmance of Wilson’s convictions and

adopt similar reasoning to reject Jones’s claims that are based on substantially the

same facts and legal arguments. In particular and for the reasons stated in Wilson v.
State,1 we reject Jones’s arguments that (i) the prosecutor engaged in misconduct

when he argued that the jury could infer that the alleged murder victim fired shots

from a prone position, and (ii) the trial court abused its discretion when it overruled

Jones’s objection to the prosecutor’s statements in closing argument that the jury

was to “decide what occurred.”2

       (3)    We likewise reject the remainder of Jones’s arguments.

       (4)    First, the trial court did not commit plain error by not severing the trial

of Jones and Wilson sua sponte. On the record before us, it appears to us that there

is at least a plausible basis for concluding that Jones’s trial counsel chose not to

move to sever for strategic reasons. It did not violate Jones’s right to a fair trial for

the trial court to decline to interfere sua sponte with such a plausible strategy.

       (5)    Second, Jones’s due process rights were not violated when the State

presented a recording of Jones’s interview by a detective that included two

comments by the detective to which Jones now objects. These comments include

one where the detective said, “I hope you come clean here soon,” and another where

the detective said, “you know this game and you know it well.” Jones argues that

these comments improperly impugned Jones’s credibility and character. We


1
  Wilson v. State, 2019 WL 2157517, at *1 (Del. May 16, 2019).
2
  The State argues that Jones failed to object to the prosecutor’s statements at trial and that,
therefore, we should review for plain error. Although our previous ruling against Wilson on this
same issue suggests that Jones’s argument should fail as an a fortiori matter if we are reviewing
for plain error, it seems to us that Wilson’s trial counsel spoke for both defendants on this
objection, B437–39, and thus that Jones adequately preserved the issue for appeal.

                                                   2
disagree. These comments were included only after Jones had an opportunity to and

did in fact redact objectionable portions of the interview. In other words, Jones did

not object at trial to the jury hearing these comments. Moreover, these comments

were fleeting in the context of a long interview. 3 And finally, in response to the

detective’s comment that he wanted Jones to “come clean,” Jones did indeed change

his account to the detective.

       (6)    Third, it was not improper for the prosecutor to refer to the defendants’

accounts as “stories.” As the State correctly points out, the term “story” has several

meanings, and we are satisfied that when considered in context, the prosecutor’s use

of “stories” meant something like “accounts” and not “lies.”

       (7)    Fourth, it was not plain error for the Superior Court to refer on occasion

to Jones and Wilson as a collective unit in its jury instructions. Neither Jones nor

Wilson opposed those aspects of the instructions during trial, and in any case, the

trial court separately instructed the jury that they should separately consider each

count as to each individual defendant.

       (8)    Last, it was not plain error for the Superior Court to permit a recording

of Jones’s police interview to go to the jury room. Jones did not make a

contemporaneous objection, and Jones’s argument on appeal is unavailing. Jones


3
  This characterization is supported by the fact that Jones’s experienced trial counsel did not
request a redaction of these comments during the pretrial review of the video transcript with the
prosecution and the trial court.

                                                   3
argues that, as a piece of out-of-court testimony, the recording should not have been

allowed into the jury room. Jones cites United States v. Binder 4 in support, but

Binder dealt with the videotaped testimony of a non-defendant witness,

distinguishing it from Jones’s case. Furthermore, as we held in Flonnery v. State,5

Jones’s proposition “does not apply to . . . incriminating statements a defendant

makes directly.”6

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

Court is AFFIRMED.

                                       BY THE COURT:


                                       /s/ Gary F. Traynor
                                       Justice




4
  769 F.2d 595 (9th Cir. 1985).
5
  893 A.2d 507 (Del. 2006).
6
  Id. at 527.

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