           IN THE SUPREME COURT OF THE STATE OF DELAWARE


ISAIAH BOYKIN,                         §
                                       §    No. 92, 2016
      Defendant-Below,                 §
      Appellant,                       §    Court Below: Superior Court
                                       §    of the State of Delaware
      v.                               §
                                       §    Cr. ID. No. 1410012608
STATE OF DELAWARE,                     §
                                       §
      Plaintiff-Below,                 §
      Appellee.                        §

                          Submitted: October 13, 2016
                          Decided:   October 27, 2016

Before HOLLAND, VAUGHN, and SEITZ, Justices.

                                       ORDER

      This 27th day of October, 2016, having considered the briefs and the record

below, it appears to the Court that:

      (1)    In 2013, a New Castle County grand jury indicted Isaiah Boykin for

robbery and related offenses for beating and robbing Gage Pyle. Boykin’s co-

conspirator, Donna Evans, testified against him at trial. On cross examination,

defense counsel asked about Evans’ relationship with Boykin, and if the two had

previously engaged in sexual intercourse. She said that they had been intimate on

one occasion and that if she had not been under the influence of drugs supplied by

Boykin she would not have done it. Boykin’s counsel objected to the answer and
requested a curative instruction. The Superior Court declined, explaining that the

witness’s statement was simply a reply to the question counsel asked. A jury

eventually convicted Boykin on all charges. On appeal, Boykin argues that the

Superior Court abused its discretion when it declined to give a curative instruction

and plainly erred by failing to immediately grant a mistrial on the basis of Evans’

testimony. According to Boykin, Evans’ comment amounted to a rape allegation,

and denied him the right to a fair trial. We find Boykin’s arguments to be without

merit, and affirm.

      (2)    On October 17, 2014, Evans contacted her ex-boyfriend Pyle to buy

marijuana for herself, Boykin, Josh Campos, and others. When Evans told them

that Pyle had marijuana for them to buy, Boykin and Campos decided they would

steal the marijuana from him instead. Evans arranged for Pyle to meet her at a

friend’s home in the Hampton Walk Apartments in New Castle, Delaware.

      (3)    Pyle’s friend, Kenyatta Berg-Moultry, drove him from Smyrna to the

New Castle apartment. There were two other individuals in the car. Pyle got out

of the car and followed Evans up the stairs into a nearby apartment building while

the others waited in the car. As Pyle was walking up the stairs, he saw a man with

a tattoo on his hand wearing a black hooded sweatshirt sitting on the steps. Pyle

began to feel nervous and tried to run down the stairs.




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      (4)    When he turned to leave, the man, who he later identified as Boykin,

pulled him down the stairs. Boykin hit him repeatedly over the head while several

of Boykin’s associates, including Campos, stole his money, marijuana, and cell

phone. Boykin held a gun to Pyle’s throat, pistol-whipped him, and threatened to

kill him. When Pyle got up, Boykin bent Pyle over a car near Berg-Moultry’s car,

and told him to tell his friends to give him everything they had. Berg-Moultry saw

the gun and sped away down the wrong side of the street, nearly hitting a police

car. Berg-Moultry shouted to the police that somebody was being robbed around

the corner and drove away.

      (5)    The police stopped Berg-Moultry’s car. After explaining to the police

that they had just witnessed a robbery, Berg-Moultry pointed to three individuals

walking by as the men that had robbed his friend. One of the two police officers

ran after them and caught Campos. When he returned, Pyle was standing with the

group next to the other officer. He was covered in blood. Tammy Caraballo, a

resident at the Hampton Walk Apartments, saw the attack occur and had driven

Pyle to where the police and Pyle’s friends were gathered. Pyle later identified

Boykin in a photo lineup at the hospital as the main attacker.

      (6)    The following day, on October 18, 2014, police arrested Boykin at a

shopping center. Boykin was wearing a black hooded sweatshirt and had Pyle’s

cell phone. A grand jury indicted Boykin on charges of robbery first degree,




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assault second degree, two counts of possession of a deadly weapon during the

commission of a felony, possession of a deadly weapon by a person prohibited,

conspiracy second degree, possession of marijuana, and terroristic threatening.

Before trial, the State entered a nolle prosequi on the marijuana charge.

         (7)     Evans cooperated with the State in exchange for a plea deal. At trial,

she testified against Boykin.        She was distressed and cried throughout direct

examination. During cross examination, Boykin’s counsel elicited that Boykin had

provided her with drugs that Evans took before their only sexual encounter.

         Counsel:       Okay. Now, I know on direct examination, you said that
                        Mr. Boykin was not your boyfriend.

         Evans:         Correct.
         Counsel:       But you were sleeping with him?

         Evans:         It was one time and, no, if I wasn’t under the influence
                        and if he wasn’t feeding me Xanax and Ecstasy pills, no,
                        I would not have done it. I would not have done it. And
                        you have text messages, you can see that.1

         (8)     At sidebar, Boykin’s counsel requested a curative instruction, and the

State did not oppose. But the Superior Court denied counsel’s request, stating:

         “This is one of the problems when you ask questions of people you do
         not interview. You tread on dangerous ground and sometimes the ice
         breaks through. And this is something that you asked of someone
         who is an emotional witness and, so, that’s the answer you got.”2


1
    App. to Opening Br. at 407.
2
    Id. at 408.




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Neither side questioned Evans’ and Boykin’s relationship further or commented on

it during closing argument. After a four day trial, a Superior Court jury convicted

Boykin on all charges. The Superior Court sentenced Boykin to a total of thirty

years at level V incarceration, suspended after seven years for decreasing levels of

supervision. This appeal followed.

         (9)    Boykin raises two arguments on appeal. First, he argues that the

Superior Court abused its discretion when it refused to give a curative instruction

regarding Evans’ testimony about her sexual encounter with Boykin. He argues

that her testimony was essentially that Boykin sexually assaulted her, which

prejudiced his right to a fair trial. He also makes a related argument that the

Superior Court committed plain error by failing to immediately declare a mistrial

after Evans’ testimony. This Court reviews the denial of a request for a curative

instruction for abuse of discretion.3 “An abuse of discretion occurs when a court

has exceeded the bounds of reason in view of the circumstances, or so ignored

recognized rules of law or practice to produce injustice.”4

         (10) “A trial court has the sole discretion whether and when to give a

curative instruction to the jury because it ‘is in a better position to determine




3
    Sammons v. Doctors for Emergency Servs., P.A., 913 A.2d 519, 539 (Del. 2006).
4
    Culp v. State, 766 A.2d 486, 489 (Del. 2001) (internal citations omitted).




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whether a curative instruction should be given.’”5 Where a trial court should have

given a curative instruction, reversal is required only if this Court cannot say the

error was harmless beyond a reasonable doubt.6

       (11) Boykin argues that this Court’s decisions in Widgeon v. State7 and

Reid v. State8 establish that the Superior Court abused its discretion when it refused

to give a curative instruction. In Widgeon, the defendant was on trial for stabbing

his girlfriend during an argument. At trial, the State asked the girlfriend how she

felt when the defendant touched her face during the argument, and the girlfriend

said she was scared because the defendant had beaten her several times in the past.9

In Reid, the defendant was on trial for sexually assaulting his girlfriend’s daughter.

At trial, the girlfriend testified that “it was out before that he had [done] something

to the girls.”10 In both cases, this Court found that the trial judges’ curative

instructions were sufficient to cure any prejudice the statements caused.

       (12) Widgeon and Reid do not assist Boykin. First, in neither case did this

Court rule that the judge abused his discretion by failing to give a curative

instruction. Rather, we held that the Superior Court did not err by failing to grant a

mistrial, and that a curative instruction sufficiently removed any potential prejudice

5
  Hamilton v. State, 82 A.3d 723, 726 (Del. 2013) (quoting Sammons, 913 A.2d at 539).
6
  Ashley v. State, 85 A.3d 81, 86 (Del. 2014).
7
  Widgeon v. State, 870 A.2d 1192, 2005 WL 580304 (Del. March 7, 2005) (Table).
8
  Reid v. State, 888 A.2d 232, 2005 WL 3272134 (Del. Nov. 30, 2005) (Table).
9
  Widgeon, 2005 WL 580304, at *1.
10
   Reid, 2005 WL 3272134, at *1.




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the statements caused.          Further, in both Widgeon and Reid, the witnesses’

statements were made during the State’s direct examination and were directly

related to the subject of the litigation.

       (13) In this case, Evans’ testimony came out on cross, not on direct.

Further, Evans’ statement was unrelated to the subject of the litigation. Rather, in

response to defense counsel’s question about her sexual relationship with Boykin,

she expressed regret, and said she would not have done it had she not been

intoxicated. She did not directly testify that Boykin raped her or that he forced her

to take drugs. There was clear evidence that Evans was involved with drugs as she

was the one who set up the drug deal. Here, defense counsel pried too closely into

an emotional witness’s personal life and received an unresponsive answer. Under

the circumstances, the court did not “exceed the bounds of reason” or “ignore

recognized rules of law” when he declined to give a curative instruction.

       (14) Further, the Superior Court’s failure to give a curative instruction was

harmless beyond a reasonable doubt.11 The State presented substantial evidence

implicating Boykin in the robbery. Pyle testified that Boykin beat and robbed him.

He noticed Boykin’s tattoo on his hand and that he was wearing a black hooded

sweatshirt. He quickly picked out Boykin from a photo lineup later that evening.

11
    Williams v. State, 98 A.3d 917, 922 (Del. 2014) (“Where the evidence exclusive of the
improperly admitted evidence is sufficient to sustain a conviction, error in admitting the evidence
is harmless.”) (internal citation omitted).




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After the attack, Berg-Moultry pointed out the group of men who attacked Pyle.

Video surveillance showed Boykin and Campos with that group near the site of the

attack, and Boykin was wearing a black hooded sweatshirt. Boykin had Pyle’s cell

phone when the police arrested him. Evans, Berg-Moultry, and Caraballo all

testified consistently with Pyle’s account. Thus, any possible error the Superior

Court made in refusing to give a curative instruction was harmless beyond a

reasonable doubt.

       (15) Boykin next argues that the Superior Court erred by failing to

immediately declare a mistrial after Evans’ testimony. Boykin did not request a

mistrial. We therefore review only for plain error.12 A mistrial is required only

where there is manifest necessity or the ends of public justice would be otherwise

defeated.”13 In Pena v. State, this Court set forth a four-part test to determine

whether a witness’s unsolicited response requires a mistrial: (1) the nature and

frequency of the conduct or 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 in determining whether a witness’s conduct was so

prejudicial as to warrant a mistrial.14



12
   Czech v. State, 945 A.2d 1088, 1097 (Del. 2008).
13
    Pena v. State, 856 A.2d 548, 552 (Del. 2004). “A trial judge sits in the best position to
determine the prejudicial effect of an unsolicited response by a witness on the jury.” Id. at 550.
14
   Id. at 550-51.




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      (16) First, Evans’ statement was said only once and was never referenced

again. Second, the comment was unlikely to prejudice Boykin because it was

completely unrelated to the charged crimes. Additionally, the jury was aware that

Evans was involved with drugs, and counsel thoroughly exposed that she may have

had motive to fabricate her testimony as a co-conspirator cooperating with the

State in exchange for a plea deal. Third, as explained above, this was not a close

case. The evidence against Boykin was strong and substantial. Finally, although

the trial judge did not take steps to mitigate any potential prejudice the statement

caused, the balance of the factors do not weigh in favor of a mistrial. Thus, the

Superior Court did not err by failing to declare a mistrial.


      NOW, THEREFORE, it is hereby ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                               BY THE COURT:

                                               /s/ Collins J. Seitz, Jr.
                                                      Justice




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