      IN THE SUPREME COURT OF THE STATE OF DELAWARE

SIRRON BENSON,                      §
                                    §
      Defendant-Below,              §      No. 380, 2013
      Appellant,                    §
                                    §      Court Below:
      v.                            §      Superior Court of the State
                                    §      of Delaware, in and for
STATE OF DELAWARE,                  §      New Castle County
                                    §      Cr. I.D. 1107007485
      Plaintiff-Below               §
      Appellee.                     §


                         Submitted: October 15, 2014
                         Decided: December 1, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.


    Upon appeal from the Superior Court of the State of Delaware.
AFFIRMED.

     Peter W. Veith, Esquire, Wilmington, Delaware, Attorney for Defendant-
Below, Appellant.


      Maria T. Knoll, Esquire, Department of Justice, Wilmington, Delaware,
Attorney for Plaintiff-Below, Appellee.



HOLLAND, Justice:
          This is an appeal from a final judgment of convictions that was entered by

the Superior Court. Following a six-day trial, a jury convicted Sirron Benson

(“Benson”) of Murder First Degree and Possession of a Firearm During the

Commission of a Felony in connection with the July 3, 2011 shooting death of

Braheem Curtis. Benson was sentenced to a term of life imprisonment as to

Murder First Degree and twenty years at Level V to be served consecutively as to

Possession of a Firearm During the Commission of a Felony.

          Benson raises two issues in this direct appeal. First, Benson contends that it

was plain error for the trial judge not to issue a curative instruction sua sponte

when the prosecutor, in his rebuttal summation, stated that Benson’s intent to cause

death could be inferred from the weapon used to perpetrate the crime. Second,

Benson submits that the trial judge committed reversible error by failing to give a

cautionary instruction relating to the testimony of an informant witness who was

receiving a benefit from the State in exchange for his testimony.

          We have concluded that neither of Benson’s arguments has merit.

Therefore, the judgment of the Superior Court must be affirmed.

                                               Facts1

          On July 3, 2011, people were congregating outside in the area of Ninth and

Kirkwood Streets on the east side of Wilmington. They were conversing with one


1
    This factual recitation is taken from Benson’s Opening Brief.
                                                  2
another and setting off fireworks in anticipation of the upcoming July Fourth

holiday. Among those gathered were Benson; decedent Braheem Curtis (“Curtis”);

Donnie Stephens; Barbara Stephens; Shirl Williams; and Shelly Cannon. In the

midst of the fireworks being set off, an argument erupted between Benson and

Curtis.   In the course of the argument, Benson told Curtis to stop with the

fireworks or else he would go and “get [his . . .] gun.”

      Following the argument, Benson, who was wearing blue jeans and a white t-

shirt, left the area walking up Ninth Street toward his residence.       Benson’s

argument with Curtis and his departure was observed by numerous bystanders who

were also gathered nearby. Shortly after leaving the area, Benson returned, raised

his arm and fired a single shot at Curtis causing him to fall to the ground. Benson

continued walking toward Curtis and fired a second shot at him while he lay on the

ground. After firing the second shot, Benson continued walking up Ninth Street

toward Lombard Street where he discarded the weapon.

      Robin Unthank, who resides at 810 Lombard Street, reported to police that

she observed an individual wearing blue jeans and a white t-shirt run past her

residence and throw a black object that appeared to be a gun up onto the roof.

Unthank’s report came in shortly after the reported shooting of Braheem Curtis.

Sergeant Hauk of the Wilmington Police Department responded and recovered a

.45 caliber Ruger Blackhawk revolver from the roof of Unthank’s residence.


                                          3
      As Benson and Curtis argued, a bystander had called 911 to complain about

the fireworks. A patrol unit was dispatched to respond to the fireworks complaint.

Immediately after the shooting, a bystander flagged down an officer who was on

patrol and reported the shooting at Ninth and Kirkwood. Officer Malloy of the

Wilmington Police Department arrived on scene to find Braheem Curtis laying on

the ground, unresponsive, and suffering from an apparent gunshot wound to the

chest. Officer Malloy provided first aid until Emergency Medical Services arrived.

      Upon arrival, Emergency Medical Services placed Curtis into an ambulance

and transported him to Christiana Hospital, where he was later pronounced dead

from a gunshot wound to the chest. While undergoing treatment at Christiana

Hospital, a single projectile was recovered and turned over to the Office of the

Chief Medical Examiner. Curtis’ body and personal effects were transferred to the

Office of the Chief Medical Examiner where an autopsy was conducted. In the

course of the autopsy, a second projectile was recovered from Curtis’ chest cavity.

      The Medical Examiner’s autopsy revealed Curtis’ cause of death to be

exsanguination caused by a gunshot wound to the thoracic aorta. Benson was

subsequently arrested and charged with the Curtis’ death. He was later indicted for

intentional Murder First Degree and Possession of a Firearm During the

Commission of a Felony.




                                         4
      At trial, the State called Barbara and Donnie Stephens, Shirl Williams and

Shelly Cannon as eye witnesses. Each witness testified that they were out in the

area of the shooting on the right in question, and that they observed the events as

they occurred. Each witness also testified that they were familiar with Benson

from the neighborhood, that he was wearing blue jeans and a white t-shirt on the

night in question, and that he was in fact the individual who shot Curtis. The State

also introduced testimony of investigating and responding police officers;

responding EMS personnel; DNA experts; a ballistics expert; Benson’s former

cellmate; and the pathologist who performed the autopsy on Curtis.

      The State’s ballistics expert, Carl Rone (“Rone”) testified that the projectiles

recovered from Curtis’ body were fired from a .45 caliber pistol. He further

testified that the weapon from which the bullets were fired had conventional, right-

twist rifling. Rone’s testimony also established that the weapon recovered from

the rooftop of 810 Lombard was a .45 caliber revolver that had conventional, right-

twist rifling and that the recovered projectiles were consistent with being fired

from this type of weapon. Rone further testified, however, that the recovered

projectiles were too damaged to be tested to the degree necessary to determine that

they had been fired from the recovered weapon. At no time during the State’s

case-in-chief did it establish the lethality of the recovered weapon versus that of

other weapons, nor did it establish that Benson had other firearms available to him.


                                          5
      During its case-in-chief, the State also called David Lawhorn (“Lawhorn”)

to testify as to the substance of conversations that he had with Benson while the

two were incarcerated together. Lawhorn and Benson were cellmates between

January and August 2012. At the time of Benson’s trial, Lawhorn had pleaded

guilty to multiple burglaries and had been sentenced.         Lawhorn testified that

Benson had confessed to having shot and killed Curtis, discarding the gun on a

nearby rooftop, and fleeing to a nearby apartment complex and later to Dover.

Lawhorn acknowledged that his testimony for the State at Benson’s trial was in

exchange for the later filing of a substantial assistance motion from which

Lawhorn stood to benefit.

      In its summation, the defense argued that the evidence was not sufficient to

prove that Benson had the requisite intent to sustain a verdict of guilty of Murder

First Degree.     The defense argued that in light of Benson’s youth and

impulsiveness, and the inconclusiveness of the physical evidence, that the only

homicide offenses that could be sustained by the evidence were Murder Second

Degree, Manslaughter or Criminally Negligent Homicide. All of these offenses

required a lesser mental state than intent.

      In its rebuttal summation, the State argued, inter alia, that the size of the gun

and bullets involved in the shooting were proof that Curtis was intentionally killed.

The prosecutor also mentioned that a witness had testified that Curtis was writhing


                                              6
about on the ground when Benson shot him a second time, an assertion Benson

now submits was not supported by the testimony or evidence. Benson’s trial

attorney did not object to the State’s remarks when they were made and the trial

judge did not intervene sua sponte.

      Following the closing arguments, the Superior Court issued its final

instructions to the jury. Those jury instructions informed the jury of the necessary

elements which must be proven to sustain guilty verdicts for the indicted offenses

as well as the lesser included offenses. The jury instructions also set forth the

burdens of proof and informed the jury that questions and remarks by counsel were

not evidence and that deliberations should only consider witness testimony and the

evidence that was admitted at trial. Following two and a half hours of deliberation,

the jury returned verdicts of guilty as to Murder First Degree and Possession of a

Firearm During the Commission of a Felony.

                         Prosecutor’s Closing Comments

      Benson’s first argument is that in the State’s rebuttal closing argument, the

prosecutor made impermissible inflammatory remarks stating his own opinion

regarding Benson’s intent to kill based upon the size of the firearm. There was no

objection to those remarks by Benson’s trial attorney. This Court reviews claims




                                         7
of prosecutorial misconduct to which there was no such objection at trial for plain

error.2

          In applying the plain error standard, this Court will first review the record de

novo to determine whether prosecutorial misconduct has in fact occurred.3 If the

Court finds no error, the analysis ends.4 If, however, the Court finds the prosecutor

erred, the Court applies the Wainright standard,5 under which, “plain error is

limited to material defects which are apparent on the fact 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.”6

          In order to prove that Benson was guilty of First Degree Murder, the State

was required to prove that he intentionally killed Curtis. Intent must usually be

inferred from the actions of the perpetrator.7 The intent necessary for First Degree

Murder may be inferred from the type of weapon used, the manner in which it was

used, the type of wound inflicted and the events leading up to and immediately




2
  Baker v. State, 906 A.2d 139, 151 (Del. 2006) (“[W]here defense counsel fails to raise any
objection at trial to allege prosecutorial misconduct and the trial judge fails to intervene sua
sponte, we review claims of prosecutorial misconduct on appeal for plain error.” (emphasis in
original))).
3
  Id.
4
  Id.
5
  Id.
6
  Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (citations omitted).
7
  Brown v. State, 233 A.2d 445, 447 (Del. 1967).
                                                 8
following the death.8 With regard to intent, the trial judge instructed the jury in

Benson’s case, as follows:

                     State of mind. One element of a criminal offense
              is the defendant’s state of mind. It is difficult to know
              what is going on in another person’s mind. Therefore,
              you are permitted to draw an inference, or reach a
              conclusion, about the defendant’s state of mind based on
              the facts and circumstances surrounding the act the
              defendant is alleged to have done.

In addressing Benson’s state of mind, the prosecutor commented:

              Because the most important evidence, the proof that
              leaves you beyond all doubt of his intention came from –
              look at the size of this gun, a .45 caliber gun. It’s no
              peashooter, as they say. It’s not a BB gun. It’s not a
              small gun. Look at the bullets. They’re in evidence.
              Look how big they are. This is a weapon to kill
              somebody. When you shoot somebody one time with a
              weapon this large, do you think it’s their intent – can you
              infer from that their intent to shoot to kill them?
              Absolutely.

              But again, that’s not all you have here. Right? Because
              he not only shot him. Because if his conscious object
              and purpose was to hurt him, he did that with the first
              shot. He did that with the first shot. Braheem went
              down on the ground. [ ] He could have just walked on or
              ran on or whatever. But he didn’t do that. Because you
8
 State v. Diaz, 679 A.2d 902, 916 (Conn. 1996); State v. Raguseo, 622 A.2d 519, 523-24 (Conn.
1993); State v. Rokus, 483 N.W.2d 149, 154-55 (Neb. 1992) (“[No one could] argue that a
hollow-point bullet fired from a .44 Magnum is not a life-threatening projectile. Intent to kill
may be inferred from deliberate use of a deadly weapon in a manner reasonably likely to cause
death.”); Williams v. State, 804 S.W.2d 346, 347-48 (Ark. 1991); Parker v. State, 717 S.W.2d
800, 801 (Ark. 1986); State v. Hamilton, 478 So.2d 123, 128-29 (La. 1985); Domanski v. State,
665 S.W.2d 793, 798 (Tex. Ct. App. 1983) (stating that every case of murder presents a different
factual situation where the State must establish the existence of intent to kill which may be
inferred by the mode of killing, whether by a firearm that is deadly per se, or the manner in
which a weapon other than a firearm is used).
                                               9
              remember what the testimony was. He shot him. And
              when he was down, he made sure he was going to kill
              him because he points down and shoots him again. And
              how is that not intent to kill somebody?

       In closing argument, a prosecutor “is allowed and expected to explain all the

legitimate inferences of the [defendant’s] guilt that flow from [the] evidence.”9

The size of the weapon in this case was a fact in evidence which the jury could

logically consider in its deliberation. In Johnson v. State,10 the Texas Court of

Appeals considered whether a knife could be used as a deadly weapon and

determined that, although a knife may not be a deadly weapon per se, a jury may

consider all of the facts of the case, “and the State can prove, even without expert

testimony, that a particular knife is a deadly weapon by showing its size, shape,

sharpness, the manner of its use, and its capacity to produce death or serious bodily

injury.”11

       In Benson’s case, the prosecutor argued an inference that could be logically

drawn from the evidence - a large gun and bullets is circumstantial evidence of

Benson’s intangible intent to kill.         The prosecutor’s argument referred to the

physical evidence, including the size of the gun and the bullets. Those items were

admitted into evidence and reviewable by the jury, which was free to accept or

reject the prosecutor’s argument. The record reflects that the prosecutor’s closing

9
  Hooks v. State, 416 A.2d 189, 204 (Del. 1980).
10
   919 S.W.2d 473 (Tex. Ct. App. 1986).
11
   Id. at 477.
                                               10
comments in Benson’s case were not improper. Accordingly, there was no plain

error.

                                    Jury Instructions

         Benson’s second argument is that by failing to instruct the jury that they

should treat the testimony of a jailhouse informant, David Lawhorn, with “great

care and caution,” the trial judge committed reversible error.        There was no

objection at trial to the jury instructions that were given. Therefore, this argument

is also reviewed for plain error.

         Lawhorn testified that from January through August 2012, while he was

incarcerated at Howard R. Young Correctional Facility for pending burglary

charges, he was Benson’s cellmate. Lawhorn testified that Benson told him that on

July 3, 2011, he and a bunch of friends were partying and shooting off fireworks

on Kirkwood Street when he got into an argument with Curtis. Benson said he was

going to go home and get his gun, but his friends talked him out of it. Benson left,

but returned and got a .45 caliber revolver from one of “his boys” and shot across

the street, hitting Curtis in the chest. When Curtis grabbed his chest and fell to the

ground, Benson ran to him and shot him again and then left, throwing the gun onto

a rooftop as he ran towards Bethel Villa. From there, Benson’s brother, Lovey,

took him to Dover.




                                           11
          In his direct testimony, Lawhorn stated that prior to testifying, he had pled

guilty to multiple burglary charges and received a four and half year sentence and

had a prior conviction for Robbery First Degree. Lawhorn also acknowledged that

in return for his agreement to testify truthfully against Benson he understood that

he would receive substantial assistance from the State in reducing his sentences.

On cross-examination, Benson reviewed with Lawhorn his prior convictions for

burglary and robbery, the basis of his knowledge and his motivations for testifying.

          During the prayer conference, the parties discussed Lawhorn’s testimony.

The trial judge noted that she would give the “witness’ conviction for a crime”

instruction in light of Lawhorn’s testimony. Benson’s counsel also told the trial

judge that he was unable to find and was unaware of a “super-duper cautionary

instruction” similar to the accomplice liability instruction in Bland v. State12 that

would apply to Lawhorn’s informant testimony. Benson’s counsel stated that he

was bringing the issue up “just to make sure [he was] not missing something.”

          The trial judge responded that counsel was free to submit an instruction for

consideration. The State commented that the “credibility of witnesses’” instruction

already informed the jury to consider the motivation for a witness’ testimony. The

record reflects that Benson’s counsel did not submit a follow-up instruction and




12
     263 A.2d 286, 288-89 (Del. 1970).
                                            12
did not object to the instructions that were given. As to the credibility of the

witnesses, the Superior Court instructed the jury as follows:

             You are the sole judges of the credibility of witnesses
             and of the weight to be given to their testimony. You are
             to judge the credibility of all of the witnesses who have
             testified before you. And police officers are witnesses
             just like anybody else, and you should judge their
             credibility, just as you would any other witness.

             For each witness, you may consider the following
             factors: the circumstances under which the witness
             obtained the knowledge, the strength of memory, the
             opportunity for observation, their reasonableness or
             unreasonableness of the testimony, the consistency or
             inconsistency of the testimony, the motivations of the
             witness, whether the testimony has been contradicted,
             whether the witness has any bias or prejudice or interest
             in the outcome of the case, the manner or behavior or
             demeanor of the witness on the witness stand, the
             apparent truthfulness of the testimony, and all other facts
             and circumstances shown by the evidence that may affect
             the credibility of the testimony.

      The Superior Court also instructed the jury that, in making a determination

regarding conflicts in testimony, to consider the witness’ demeanor or behavior,

the reasonableness of the testimony, “the witness’ opportunities for learning and

knowing the facts about which they testify, and any prejudice or interest they may

have concerning the outcome of the case” The jury was further instructed that a

witness’ conviction for a crime of dishonesty could be considered for judging the

credibility of that witness.



                                         13
       The record reflects that Benson’s trial attorney emphasized to the jury

Lawhorn’s reasons for testifying and expounded upon them in closing argument:

              We know what David Lawhorn is. He’s a convicted
              robber, serial burglar. He’s been sentenced to four and a
              half years in jail. And now he comes into court and he’s
              got a deal with the State. Come in and tell you what you
              allegedly heard the defendant tell you. And the State, the
              Department of Justice, will file a motion with the judge.
              And the judge will make a decision about whether he
              cuts David Lawhorn a break.             How credible or
              trustworthy is that type of person on the stand that has an
              ulterior motive to come forward? He didn’t come
              forward when he first heard the defendant allegedly tell
              him this stuff.

       Benson now argues on appeal that the jury should have been given an

instruction in accordance with the Third Circuit’s Pattern Jury Instruction for

informant witnesses. Benson acknowledges, however, that an informant witness

instruction is not required in all cases. In fact, the case that Benson cites to support

his argument on appeal, United States v. Isaac,13 did not require such an

instruction.14

        “As a general rule, a defendant is not entitled to a particular instruction, but

he does have the unqualified right to a correct statement of the substance of the

law.”15 “A trial court’s jury charge will not serve as grounds for reversible error if


13
   134 F.3d 199 (3d Cir. 1998).
14
   Id. at 205.
15
   Smith v. State, 913 A.2d 1197, 1241 (Del. 2006); (quoting Bullock v. State, A.2d 775 A.2d
1043, 1047 (Del. 2001); Floray v. State, 720 A.2d 1132, 1138 (Del. 1998)); see also Flamer v.
State, 490 A.2d 104, 128 (Del. 1983).
                                              14
it is ‘reasonably informative and not misleading, judged by common practices and

standards of verbal communication.’”16 Therefore, as long as the trial judge’s jury

instruction was legally correct, the fact that it differed from Benson’s current

desired instruction, which was not requested at trial, is irrelevant.17

          Benson’s jury was given the pattern instruction on the credibility of

witnesses, conflicts in testimony and witness’ conviction of a crime. The jury

instructions that were given adequately guided the jury as trier of fact and

determiner of credibility and enabled the jury to perform its duty. The record

reflects no plain error.

                                            Conclusion

          The Superior Court’s judgment of convictions is affirmed.




16
     Bullock, 775 A.2d at n. 47; (quoting Baker v. Reid, 57 A.2d 103, 109 (Del. 1947)).
17
     See Grace v. State, 658 A.2d 1011, 1014 (Del. 1995).
                                                  15
