IN THE SUPREME COURT OF THE STATE OF DELAWARE

DERRELL SNIPES, §
§ No. 447, 2014
Defendant—Below, ‘ §
Appellant, §
§
V. § Court Below—Superior Court
‘ § of the State of Delaware in
STATE OF DELAWARE, § and for Sussex County, Delaware
§ Cr. ID No. 1305019727
Plaintiff -Below, §
Appellee. §

Submitted: February 25, 2015
Decided: March 12, 2015

Before HOLLAND, VALIHURA, and VAUGHN, Justices.
O R D E R

This 12th day of March 2015, it appears to the Court that:

(1) The defendant-below/appellant Derrell Snipes (“Snipes”) appeals
from a Superior Court’s order denying his motion for a mistrial, and a subsequent
jury conviction of Possession of a Firearm by a Person Prohibited (“PFBPP”) and
Possession of Ammunition by a Person Prohibited (“PABPP”).

(2) Snipes raises one claim of error in this appeal. Snipes contends that
the trial court abused its discretion by not declaring a mistrial after the jury was
informed three times by a testifying police ofﬁcer that there had been a prior trial.
We ﬁnd no merit to Snipes’ claim and afﬁrm the Superior Court’s judgment of

convictions.

(3) On May 24, 2013, Dover Police Department Patrolman First Class
John Michael Willson (“Patrolman Willson”) was on patrol at 2 am. on South
New Street in Dover when he observed a group of 15 to 20 people gathering in
front of the Colonial Apartments at '132 South New Street. Patrolman Willson
reported the situation to his supervisor, Sergeant Spicer (“Sgt Spicer”). Sgt.
Spicer ordered Patrolman Willson to return to the Dover Police station, gather
other ofﬁcers, and devise a plan. Willson contacted Master Corporal Brian
Sherwood (“Master Corporal Sherwood”), Patrolman First Class Joseph Bauer
(“Patrolman Bauer”) and Patrolmen Matthew Krogh (“Patrolman Krogh”), James
Wood (“Patrolman Wood”), and Brian Schmidt, and requested they meet him at
the Dover Police station.

(4) At the police station, the police ofﬁcers were able to observe the
civilians assembled on South New Street via a remote camera that was transmitting
images to two 72 inch high deﬁnition screens. They observed Trevor Jenkins
(“Jenkins”) walk to a silver Mercury Marquis automobile parked on South New
Street, retrieve an object from the driver’s compartment, and place it in his right
rear pocket. Next the ofﬁcers saw Warren Brooks (“Brooks”) walk to the same

car, open the trunk, remove a long object covered with clothing or cloth, and walk

to an alleyway fence. Brooks then set the object on the other side of the fence
where it was retrieved by Snipes.

(5) In response to what Sgt. Spicer thought to be an imminent shooting,
Patrolman Willson and Master Corporal Sherwood were dispatched to New Street
and the other four ofﬁcers were sent to South Queen Street. Upon arrival at South
Queen Street, Patrolman Krough and Patrolman Wood shined a ﬂashlight down an
alleyway and saw approximately 15 individuals. Three of the individuals, Brooks,
Jenkins, and Snipes, saw the officers and began to run.

(6) Patrolman Wood chased Snipes. With Patrolman Wood in pursuit,
Snipes stopped as he ran deeper into the alley, threw the object he was carrying
into a grassy area next to a tree, and began walking back toward the group of
individuals who did not run. Patrolman Wood was within ten feet of Snipes when
he witnessed Snipes throw the cloth package to the ground. Patrolman Wood took
Snipes into custody as he started to walk back towards the group. The object
Snipes had thrown on the ground was retrieved by Patrolman Bauer. It was
thereafter determined that the cloth covered object was a sawed-off shotgun
containing two lZ-gauge rounds. Brooks and Jenkins were also captured and taken

into police custody.

(7) The trials of Brooks, Jenkins, and Snipes were consolidated. A jury
found Snipes guilty of resisting arrest, but could not reach a unanimous verdict as
to Snipes and Jenkins on the charges of PFBPP or PABPP.

(8) In April 2014, Snipes and Jenkins were retried in a consolidated trial
for the ﬁrearm offenses. On cross-examination by defense counsel, Master
Corporal Sherwood mentioned a prior trial on three separate occasions. First,
when asked by Jenkins’ defense counsel if he had viewed the surveillance video,
Master Corporal Sherwood stated “[t]he last time I viewed it was at the last trial.”
Master Corporal Sherwood was later asked by Snipes’ defense counsel whether he
had reviewed a written report by the chief investigating ofﬁcer, and Master
Corporal Sherwood responded, “[a]t the last trial I did, yes.” After some additional
questions about the report, Snipes’ counsel asked, “[y]ou indicated you read it?”
and Master Corporal Sherwood replied, “I read it at the beginning of the last trial,
yes.” At no time did either of defendants’ counsel object to Master Corporal
Sherwood’s references to the prior trial.

(9) Shortly thereafter, the trial court ordered a recess for lunch. After the
jury left the courtroom, the trial court addressed its concern regarding Master
Corporal Sherwood mentioning the prior trial three times during his testimony.
Both Snipes’ and Jenkins’ attorneys. requested a curative instruction that stated

“there was a reference to a prior trial and that information should be disregarded.”

(10) However, after the lunch recess, Snipes’ counsel informed the trial
court that she did not think a curative instruction would sufﬁce and moved for a
mistrial. Jenkins joined Snipes in the motion for a mistrial. The trial court denied
the motion for a mistrial. The court reasoned that the references in question were
made by only one Witness, there were no references to prior convictions, and the
answers were in response to defense counsel’s questions on cross-examination.

‘(l 1) After the motion for a mistrial was denied, counsel for Jenkins stated
a curative instruction did not appear to be proper because it would bring up the
issue of a prior trial again. Counsel for Snipes and for Jenkins each stated that they
would not ask for a curative instruction. Snipes was found guilty of both ﬁrearm
offenses. This appeal followed.

(12) A decision to grant or deny a mistrial is reviewed for abuse of
discretion.1 “This grant of discretion recognizes the fact that a trial judge is in the
best position to assess the risk of any prejudice resulting from trial events.”2 “A
trial judge should grant a mistrial only when there is manifest necessity or the ends
of public justice would be otherwise defeated. The remedy of a mistrial is
mandated only when there are no meaningﬁil and practical alternatives to that

remedy.”3

1 Smith v. State, 963 A.2d 719, 722 (Del. 2008).
2 Revel v. State, 956 A.2d 23, 27 (Del. 2008).
3 Smith, 963 A.2d at 722 (internal quotations omitted).

5

(13) In Pena v. State, this Court developed a four—part analysis to
determine whether the unsolicited comments of a witness require the trial judge to
declare a mistrial.4 This analysis considers: (1) the nature and frequency of the
comments; (2) the likelihood of resulting prejudice; (3) the closeness of the case;
and (4) the sufﬁciency of the trial judge’s efforts to mitigate any prejudice.5

(14) Applying the four-part Pena analysis to the case at bar, the ﬁrst prong
favors the State. The nature and frequency of the comments made by Master
Corporal Sherwood do not favor the grant of a mistrial. The references at issue
here were made by a single witness testifying on the second day of a four-day trial.
The references were nonspeciﬁc and could have referred to a trial that did not
involve Snipes. The remarks were made in response to questions by defense
counsel and were not elicited by the State.

(15) Snipes relies on our holding in Bailey v. State,6 to support his
contention that a mistrial was warranted. In Bailey, we found a mistrial was
warranted after three witnesses mentioned that the defendant had been previously
tried for murder, the offense for which he was currently being tried.7 However, as
the trial court noted in this case, Bailey can be distinguished because three

witnesses testiﬁed in Bailey as Opposed to one witness in this case, and the third

:Pena v. State, 856 A.2d 548, 550-51 (Del. 2004).
Id.

6Bailey v. State, 521 A.2d 1069 (Del. 1987).

7 Id. at 1072. .

witness in Bailey explicitly mentioned the defendant’s prior murder conviction. In
this case, Master Corporal Sherwood did not reveal who was involved in the last
trial or the outcome. Thus, the ﬁrst prong of Pena favors the State and militates
against ﬁnding that the trial court abused its discretion by not declaring a mistrial.

(16) As to the second prong of Pena, the likelihood of resulting prejudice,
the jury was not told who was involved in the previous trial or what the outcome
was in the previous trial. Additionally, the references to the first trial were vague,
innocuous, and made no speciﬁc reference to Snipes or the crime for which he was
charged. Snipes’ attorney correctly pointed out that the jury might assume that the
last trial was the trial of Brooks, Snipes’ absent co-defendant in the instant case.
Accordingly, the second prong of Pena favors the State and weighs against ﬁnding
that the trial court abused its discretion by not declaring a mistrial.

(17) The third prong of Pena. also weighs in favor of the State. This was
not a close case. Brooks was caught on video removing a long, hard object
wrapped in cloth from the trunk of a car. He was then seen placing the object on
the other side of a fence. Snipes was seen retrieving the object. When Patrolman
Wood arrived at the scene, he saw Snipes holding the object and saw him throw
the object into the grass.

(18) Patrolman Wood took Snipes into custody within ten feet of where the

object had been thrown, never losing sight of Snipes or the object. At Patrolman

Wood’s direction, Patrolman Bauer retrieved the object and discovered a loaded

shotgun inside the cloth covering. There was more than sufﬁcient evidence to
allow a rational trier of fact to ﬁnd Snipes guilty of the ﬁrearm offenses. Thus, the

third prong of Pena favors the State.

(19) As to the ﬁnal prong of Pena, the trial court offered to give a curative

instruction in order to mitigate any prejudice caused by Master Corporal
Sherwood’s references. In fact, the trial court gave defense counsel an opportunity
to craft the curative instruction to its satisfaction for submission to the court.
Signiﬁcantly, however, both Snipes and Jenkins made a strategic decision to
decline the court’s offer to give a curative instruction. Speciﬁcally, Snipes’
defense counsel stated, “[A]ny curative [instruction] that you would give would
just further inﬂame the situation and reinforce the fact that there had been a
previous trial, which is inappropriate during the trial.”

(20) In this direct appeal, Snipes cannot challenge the reasonableness of
his defense counsel’s strategy. The'trial court offered to give the jury a curative
instruction. Snipes’ counsel expressly requested that the trial court refrain from

giving such an instruction. Accordingly, the fourth Pena factor weighs in favor of

the State.

(21) After carefully weighing the factors under a Pena analysis, we
conclude the trial court was within its discretion in denying Snipes’ motion for a
mistrial.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court be, and the same hereby, is AF FIRlVIED.

BY THE COURT:

[3:16 95W

. Justice

