         IN THE SUPREME COURT OF THE STATE OF DELAWARE

KYRAN JONES,                          §
                                      §      No. 115, 2015
      Defendant Below,                §
      Appellant,                      §      Court Below: Superior Court
                                      §      of the State of Delaware,
            v.                        §      in and for New Castle County
                                      §
STATE OF DELAWARE,                    §      Cr. ID. Nos. 1307021270A and
                                      §      1308004537
      Plaintiff Below,                §
      Appellee.                       §

                         Submitted: October 28, 2015
                         Decided:   November 9, 2015
                         Revised:   November 10, 2015

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                     ORDER

      This 9th day of November, 2015, it appears to the Court that:

      (1)    Kyran Jones appeals from his October 10, 2014 Superior Court

conviction for first degree assault, attempted robbery, and two counts of possession

of a firearm during the commission of a felony. The court sentenced Jones to

eleven years of incarceration. Jones challenges his conviction on two grounds.

First, he argues a statement made by the prosecutor in the State’s closing argument

amounted to prosecutorial misconduct and was unduly prejudicial. Second, he

argues that testimony about prior drug sales should have been excluded as

inadmissible prior bad act evidence.      We hold that although the prosecutor’s
comment was improper, it did not amount to reversible error. As to the evidence

of prior drug sales, we hold that Jones has waived appellate review of this

contention, and that in any event, the evidence was admissible. Accordingly, we

affirm.

      (2)    On July 25, 2013, Raymond Mayne and his friend Peewee drove to a

church parking lot in the Riverside neighborhood of Wilmington to buy heroin

from Jones. Peewee drove. Mayne had prior dealings with Jones, who he knew as

“Lo,” all related to the drug trade. Jones and Mayne had been communicating by

mobile phone to arrange the transaction. The pair made contact with Jones while

in the car in the parking lot. Mayne examined the product as he sat in the

passenger seat of Peewee’s car. Dissatisfied with the quality of heroin Jones

showed him, Mayne asked for a different variety. Jones assured him that he had

the type of heroin that Mayne wanted, but would have to go around the corner to

get it. The would-be purchasers waited in the car.

      (3)   When Jones returned, he pointed a handgun at Mayne and demanded

his money. Mayne grabbed the gun, and a struggle ensued. Jones fired several

shots. Peewee accelerated at that point, and the two made their escape. As they

drove away, Mayne realized he had been shot. They made it to the hospital, where




                                         2
Mayne was treated and recovered. At the hospital, Mayne identified Jones as the

shooter in a photo lineup, although he believed the photo of Jones was old. 1

       (4)     Jones was tried before a Superior Court jury from October 8-10, 2014.

Before the trial began, the court addressed the admissibility of testimony about

prior drug transactions between Mayne and Jones. The parties agreed that the

evidence was admissible to show that Mayne knew Jones, and helped to establish

his identity as the shooter. Jones did not object to admissibility of this evidence.

He merely requested a limiting instruction that it be considered to show identity,

and not bad character. 2 The court later gave such an instruction. 3

       (5)     Mayne testified at trial, but was not asked by the prosecutor to make

an in-court identification. Later, in the State’s closing argument, the prosecutor

said of Mayne:

       But does he want to come into this courtroom in front of everybody
       present and point out his Riverside heroin dealer? Think of how he
       met Lo. That was through somebody else. There was another person
       out there who made that introduction. What was that person going to
       think of [Mayne] taking the stand? He knows these people have guns.
       He knows the hard way that they use those guns.4

At this point, Jones objected and the trial judge called counsel to sidebar. The

court decided that the statement was not supported by the evidence, but the parties
1
  The photo was in fact several years old at the time. App. to Opening Br. at 111 (Trial Test. of
Detective Randall Nowell).
2
  App. to Opening Br. at 78-79 (Trial Tr. Oct. 8, 2014); see also id. at 88 (“I can’t make a good-
faith argument that it’s more prejudicial to my client than probative in the State’s case.”).
3
  Id. at 105.
4
  App. to Opening Br. at 147 (Trial Tr. Oct. 10, 2014).
                                                3
and the court elected to go on without any curative instruction. 5 The jury later

returned a guilty verdict.

       (6)    On appeal, Jones argues the prosecutor’s comment in his closing

argument, where he said that Mayne “knows these people have guns, [h]e knows

the hard way that they use those guns,” 6 was improper. He claims that it was

improper because it was not based on any of the evidence presented at trial. The

State argues in response that the statements were a fair inference from Mayne’s

trial testimony. We agree with Jones that the statements were improper, but hold

that the statements did not prejudice Jones, and therefore this isolated instance of

misconduct did not amount to reversible error.

       (7)    This Court’s review of prosecutorial misconduct requires a two-step

analysis. First, we determine whether misconduct has occurred. 7 If it has not, our

analysis ends. If it has, then we must analyze the misconduct under the framework

outlined in Hughes v. State to determine whether it unduly prejudiced the

defendant and thus amounted to reversible error.8 In Hughes, this Court adopted a

three-factor balancing test to determine whether prosecutorial misconduct

prejudiced the defendant such that it justifies reversal: 9 “(1) the closeness of the



5
  Id.
6
  Id.
7
  Baker v. State, 906 A.2d 139, 148-49 (Del. 2006).
8
  Id.
9
  437 A.2d 559, 571 (Del. 1981).
                                               4
case, (2) the centrality of the issue affected by the error, and (3) the steps taken to

mitigate the effects of the error.” 10

       (8)    The prosecutor’s statement amounted to misconduct.                    In closing

arguments, lawyers are not permitted to express opinions that are not supported by

the evidence presented, or are not direct, rational inferences from the evidence

presented.11 It is prosecutorial misconduct “intentionally to misstate the evidence

or mislead the jury as to the inferences it may draw.” 12 Here, the prosecutor’s

statement that Mayne testified reluctantly because he was afraid of retaliatory

violence had no basis in the record. Mayne merely testified that he was unhappy to

be in court testifying under subpoena, without any explanation as to why. 13 The

prosecutor’s statement therefore raised an improper inference that Mayne’s

reluctance was caused by a fear of retaliatory violence, which had no basis in any

of the testimony presented.

       (9)    Turning to the first Hughes factor, this was not a close case. Mayne

positively identified Jones in the photo array shortly after the shooting.14

Examination of Jones mobile phone revealed communications between the victim

10
   Id.; see also Kirkley v. State, 41 A.3d 372, 376 (Del. 2012).
11
   Hunter v. State, 815 A.2d 730, 735 (Del. 2002); Hughes, 437 A.2d at 571 (“[T]he prosecutor
who labels testimony as a lie runs the risk of passing from a legitimate inference drawn from the
evidence to the expression of an impermissible personal opinion.”) (internal citations omitted).
12
   Daniels v. State, 859 A.2d 1008, 1011 (Del. 2004) (quoting Sexton v. State, 397 A.2d 540, 545
(Del. 1979)).
13
   App. to Opening Br. at 97 (Trial Test. of Raymond Mayne) (“Q: Mr. Mayne, would it be fair
to say you’re not happy to be here today? A: Yeah.”).
14
   App. to Opening Br. at 110 (Trial Test. of Detective Randall Nowell).
                                               5
and him before the time of the shooting. 15 Forensic analysis of telephone records

placed Jones at the location of the crime during the shooting.16 And Mayne was

attempting to buy heroin from, and was shot by, someone with the alias “Lo,” who

the State presented evidence was actually Jones.17 This factor weighs against the

statement amounting to reversible error.

       (10) The second Hughes factor, the centrality of the issue affected by the

error, does not weigh in Jones’ favor. The identity of the shooter was the main

issue at trial. The prosecutor’s statement had little if anything to do with the

identity of the shooter. Whether Mayne was reluctant to testify as to Jones’ guilt

because of a fear of reprisal did not make it any more or less probable that Jones

was the shooter. Because any connection between the statement and the central

issue in the trial would be tenuous at best, this factor weighs against the statement

amounting to reversible error.

       (11) Lastly, no curative instruction was given. This was partially the result

of a tactical move on the part of Jones to avoid drawing attention to the

statement. 18 Also, the court did not consider the statement overly prejudicial, and

believed that its general instruction about inferences from the evidence would be

15
   Id. at 117-19.
16
   App. to Opening Br. at 124-35 (Tr. Testimony of Special Investigator Brian Daly).
17
   App. to Opening Br. at 128-29 (Tr. Testimony of Detective Robert Nowell).
18
   App. to Opening Br. at 148 (Trial Tr. Oct. 10, 2014) (“You know, I think, just for the record, I
could ask that the Court instruct the jury to disregard [the prosecutor’s] comments that there was
someone out there that could potentially pose a direct threat to the witness, but I don’t want to
highlight that.”).
                                                6
sufficient to cure any defect. 19 Although the lack of a curative instruction would

seem to weigh in favor of a finding of reversible error, in this instance Jones

arguably benefited from the fact that attention was not drawn to the statement. In

any event, the court’s general instruction about inferences had a curative effect.

After considering all of the Hughes factors, we find that the prosecutor’s improper

remarks during closing did not prejudice Jones or result in an unfair trial.

       (12) Jones also argues that testimony about prior drug sales should have

been excluded as unduly prejudicial, and should be reviewed for plain error.

Jones’ counsel conceded that such testimony was admissible for the purpose of

establishing identity. 20 The State argues that because Jones conceded that evidence

of his prior drug dealing was admissible, he has waived any claim of error and the

Court should not review for plain error. This Court has held that where a party

elects not to object, then a waiver has occurred and plain error review is not

available.21     As such, because Jones consciously elected not to object to the



19
   Id. (“Let’s just pull back on making too much of that particular point. I think that the
instruction will cure what was stated in closing.”).
20
   App. to Opening Br. at 78-79 (Tr. Transcript Oct. 8, 2014) (“I believe it’s admissible under
404(b) with a limiting instruction that the jury is just to use that evidence, that testimony for
identity purposes only and not to infer general disposition upon my client to commit prior bad
acts, including drug dealing.”); id. at 88 (“I can’t make a good-faith argument that it’s more
prejudicial to my client than probative in the State’s case.”).
21
   Wright v. State, 980 A.2d 1020, 1023 (Del. 2009) (“[I]f the record reflects that the decision not
to object at trial was a deliberate tactical maneuver by defense counsel and did not result from
oversight, then that action constitutes a true waiver.”) (internal quotations omitted); id. (“[T]his
Court has consistently held that a conscious decision to refrain from objecting at trial as a tactical
matter is a waiver that will negate plain error appellate review.”); see also Stevens v. State, 3
                                                  7
admission of the evidence, conceding that there was no “good-faith argument” for

its exclusion, he has waived this argument.

       (13) Even if Jones had not waived appellate review by acquiescing to the

admission of the evidence, we would find no plain error. To find that mistakes at

trial qualify as plain error, they must be “so clearly prejudicial to substantial rights

as to jeopardize the fairness and integrity of the trial process.” 22 The defects must

be plain and clear from the record, and must be of a “basic, serious and

fundamental” character such that they deprive the defendant of a fundamental right

or reflect manifest injustice. 23

       (14) Under the relevant evidentiary rule, potentially prejudicial prior bad

act evidence is admissible to show identity and for other legitimate purposes.24

This Court has upheld admission of evidence of prior drug-related conduct when

introduced for legitimate purposes. 25 In this case, the prosecutor, the court, and

even Jones’ counsel agreed that this was admissible to show identity. 26 Mayne’s

familiarity with Jones, and thus the reliability of his identification, resulted from


A.3d 1070, 1075-77 (Del. 2010); Czech v. State, 945 A.2d 1088, 1097-98 (Del. 2008); Tucker v.
State, 564 A.2d 1110, 1117-18 (Del. 1989).
22
   Blake v. State, 65 A.3d 557, 562 (Del. 2013) (citing Turner v. State, 5 A.3d 612, 615 (Del.
2010)).
23
   Id.
24
   D.R.E. 404(b).
25
   See Torres v. State, 979 A.2d 1087, 1098-99 (Del. 2009) (upholding admission of evidence of
prior drug transaction to show common scheme or plan); Williams v. State, 796 A.2d 1281, 1288
(Del. 2002) (holding it was not plain error to fail to give a limiting instruction related to evidence
of prior association with drug dealers to show access to drugs).
26
   App. to Opening Br. at 78-79, 88 (Trial Tr. Oct. 8, 2014).
                                                  8
prior drug deals between the two. Therefore, admission of the prior drug dealing

testimony was proper to show identity, and would be upheld even if Jones had not

waived his objection to its admission.

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

Court is AFFIRMED.

                                             BY THE COURT:

                                             /s/ Collins J. Seitz, Jr.
                                                    Justice




                                         9
