           IN THE SUPREME COURT OF THE STATE OF DELAWARE

TROY DIXON,                                §
                                           §      No. 653, 2013
      Defendant-Below,                     §
      Appellant,                           §      Court Below:
                                           §
      v.                                   §      Superior Court of the
                                           §      State of Delaware, in and for
STATE OF DELAWARE,                         §      New Castle County
                                           §
      Plaintiff-Below,                     §      Cr. I.D. No. 1211005646A
      Appellee.                            §

                          Submitted: September 24, 2014
                            Decided: October 1, 2014

Before HOLLAND, RIDGELY, and VALIHURA, Justices.

                                     ORDER

      This 1st day of October 2014, upon consideration of the parties’ briefs and

the record below, it appears to the Court that:

      1.     The appellant, Troy Dixon (“Dixon”), appeals his convictions for

Assault in the Second Degree, Possession of a Firearm During the Commission of

a Felony, and Resisting Arrest. The State’s theory was that Dixon fired shots into

a car four days after certain events took place at the Rebel nightclub and the

Thunderguards clubhouse where another individual, Kevin Bell (“Bell”), had been

fatally shot. The car Dixon allegedly fired upon contained three occupants:

Darren Brown (“Brown”), the driver, Maurice Harrigan (“Harrigan”), a long-time

associate of Bell’s, and Aaron Summers (“Summers”). Brown was driving
Harrigan and Summers to Bell’s funeral when Dixon allegedly shot at the back of

the car hitting Summers in the back of the neck. Dixon argues on appeal that the

Superior Court erred in: (i) allowing two photographic lineups into evidence; (ii)

denying a mistrial based on a witness’ unsolicited hearsay statement; (iii) admitting

evidence of certain events on November 4, 2012 (four days before Dixon was

arrested) that occurred at the Rebel nightclub and the Thunderguards motorcycle

club where Bell was shot and killed; and (iv) denying a mistrial after jurors had

contact with two trial spectators in and outside of the courthouse. After carefully

considering these issues, we agree with the Superior Court’s judgment and affirm.

         2.      Dixon first claims that the Superior Court erred by admitting two

photographic lineups into evidence because they were confusing and prejudicial.

Although neither witness positively identified Dixon as the shooter, Brown was

able to identify the shooter as having a complexion and facial hair similar to

Dixon’s. Harrigan was able to identify Dixon as the individual with whom he

argued at the Rebel nightclub. The trial court found Harrigan’s testimony to be

relevant to the State’s motive theory. We review a trial judge’s decision to admit

or exclude evidence, over a party’s objection, for abuse of discretion.1 If a party

did not raise an objection below, we review for plain error.2 Plain error is an error



1
    Wright v. State, 25 A.3d 747, 752 (Del. 2011).
2
    Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
                                                     2
that is so clearly prejudicial to a defendant’s substantial rights as to jeopardize the

fairness and integrity of the trial.3

          3.    In this case, Dixon objected to the testimony about the photo lineup

shown to Brown but did not object to the photo lineup shown to Harrigan.

Ultimately, the Superior Court concluded that any objection to the admission of the

lineup evidence shown to Brown went to the weight of the evidence and not its

admissibility.4

          4.    Dixon does not cite to any facts in the record or case law in support of

his contention that admission of the lineup evidence was “confusing and

problematic” and denied him the right to a fair trial. Although neither witness

could positively identify Dixon as the shooter, Brown was able to identify the

shooter as having a complexion and facial hair that resembled Dixon’s; and

Harrigan was able to identify Dixon as the man he encountered at the Rebel

nightclub with whom he had an argument. The trial court admitted Harrigan’s

testimony, finding it to be relevant to the State’s motive theory. Both lineups

provided some circumstantial evidence connecting Dixon to the crime.5 We do not

believe the Superior Court abused its discretion in admitting the lineup evidence



3
    Id.
4
    Appellant’s Amended Appendix at A105.
5
    See Bohan v. State, 2012 WL 2226608, *1 (Del. Jun. 15, 2012).
                                                    3
shown to Brown. Nor did it commit plain error in admitting the lineup evidence

shown to Harrigan.

          5.     Dixon next argues that the Superior Court erred in refusing his request

for a mistrial after Harrigan offered unsolicited hearsay testimony. We review the

denial of a motion for a mistrial for abuse of discretion as the trial judge is in the

best position to assess the risk of any prejudice resulting from trial events.6 The

Superior Court took immediate curative efforts to strike Harrigan’s unresponsive

comment and to instruct the jury to disregard the statement. The jury is presumed

to have followed that instruction.7 Based upon our review of the record below, we

affirm the Superior Court’s denial of a mistrial for the reasons cited by the trial

court.8

          6.     Dixon next contends that the trial court erred in permitting the

testimony concerning the events that occurred at the Rebel nightclub and the

Thunderguards club. Dixon, however, includes no citation to the record of any

specific evidence or testimony that he asserts was erroneously admitted. This

Court has consistently held that the cursory treatment of an issue is insufficient to




6
 Copper v. State, 85 A.3d 689, 692 (Del. 2014) (citing Sykes v. State, 953 A.2d 261, 267 (Del.
2008)).
7
    Revel v. State, 956 A.2d 23, 27 (Del. 2008).
8
    Appellant’s Amended Appendix at A228-30.
                                                   4
preserve an issue for appeal.9 Accordingly, on the record before us, we conclude

that Dixon has waived the issue on appeal.

          7.     Dixon finally claims that the Superior Court erred in denying his

motion for a mistrial after several jurors had contact with two trial spectators in

and outside of the courthouse. While the interactions between the jurors and the

spectators are troubling, we have provided trial judges “very broad discretion in

deciding whether a case must be retried or the juror summoned and investigated

due to alleged exposure to prejudicial information or improper outside

influence.”10 To impeach a jury verdict, the defendant has the burden of

establishing both improper influence and actual prejudice to the impartiality of the

juror’s deliberations.11 However, “[i]f a defendant can prove a reasonable

probability of juror taint, due to egregious circumstances, that are inherently

prejudicial, it will give rise to a presumption of prejudice and the defendant will

not have to prove actual prejudice.”12

          8.     The record reflects that, after the first full day of trial, two spectators

at the trial encountered several jurors while standing near the courthouse elevators.

The bailiff did not allow the jurors to get on the same elevator as the spectators and


9
    Ploof v. State, 75 A.3d 811, 822 (Del. 2013).
10
     Sheeran v. State, 526 A.2d 886, 897 (Del. 1987).
11
     See Flonnory v. State, 778 A.2d 1044, 1054 (Del. 2001).
12
     Id. (citing Massey v. State, 541 A.2d 1254, 1259 (1988)).
                                                        5
instead sent the jurors down on the freight elevator.13 When the jurors got off the

elevator, Juror No. 10 stated that he noticed the same two spectators “eyeballing”

him.14 Juror No. 7 stated that as he walked past the two men, one of them tried to

get the juror’s attention by saying, “Hey, you. Hey buddy.”15 The juror kept

walking without responding, and the encounter ended. There was no actual

exchange of words or introduction of new factual information about the case.16

          9.     The morning after this occurrence, the trial judge conducted an

individual voir dire with each juror in the presence of the prosecutor and defense

counsel.17 At the end of the voir dire, both defense counsel moved for a mistrial,

which the judge denied.

          10.    We review the denial of a motion for a mistrial for abuse of discretion

as the trial judge is in the best position to assess the risk of any prejudice resulting

from trial events.18 Where the claim involves the infringement of a constitutional

right, we review the claim de novo.19 Both the Sixth Amendment of the United


13
     Appellant’s Amended Appendix at A125.
14
     Appellant’s Amended Appendix at A139.
15
     Appellant’s Amended Appendix at A135-36.
16
  Cf. Baird v. Owczarek, 93 A.3d 1222, 1230 (Del. 2014) (holding that a juror’s internet
research relating to the case “ha[d] the potential to prejudicially compromise the jury’s function
under the Delaware Constitution to determine facts exclusively based upon evidence that is
presented in the courtroom”) (emphasis in original)).
17
     Appellant’s Amended Appendix at A134-86.
18
     Copper, 85 A.3d at 692 (citing Sykes, 953 A.2d at 267).
19
     Copper, 85 A.3d at 692.
                                                     6
States Constitution and Article I, § 7 of the Delaware Constitution provide

defendants in criminal cases with a fundamental right to a fair trial and an impartial

jury.20 As this Court has recently stated in Copper, “[j]uror impartiality must be

maintained not only in the interest of fairness to the accused, but also to assure the

overall integrity of the judicial process.”21 Further, “[g]ranting a mistrial is an

extraordinary remedy, warranted only when there is manifest necessity and no

meaningful and practical alternatives.”22 This Court has held that voir dire

questioning that eliminates any source of potential prejudice before the jury begins

deliberations is one practical alternative remedy.23 When a judge determines that

the jury may have been exposed during the course of trial to an extraneous

influence that raises a serious question of possible prejudice, the trial judge should

conduct a voir dire of jurors to ascertain the extent of their exposure to the

extraneous influence and to assess its prejudicial effect.24 The initial questioning

concerning whether any juror was affected by the potentially prejudicial influence

may be carried out collectively, but if any juror indicates that he or she has been


20
     Id. at 693 (citing Flonnory, 778 A.2d at 1052).
21
     Copper, 85 A.3d at 693 (citing Knox v. State, 29 A.3d 217, 222-23 (Del. 2011)).
22
  Copper, 85 A.3d at 693 (quoting Burns v. State, 968 A.2d 1012, 1018 (Del. 2009)) (internal
quotation marks omitted).
23
  Copper, 85 A.3d at 695 (“[T]he mitigating action taken by the trial judge – the curative
instruction and additional jury voir dire – ensured that any potential prejudice was eliminated.”).
24
  See id. at 695-96; Flonnory, 778 A.2d at 1053-55; Massey, 541 A.3d at 1256-59; Hughes v.
State, 490 A.2d 1034, 1045-48 (Del. 1985).
                                                       7
exposed to the extraneous influence, there should be individual questioning of that

juror, outside of the presence of any other juror, to determine the extent of the

juror’s exposure and its effects on the juror’s ability to render an impartial verdict.

         11.    In this case, the trial judge conducted a thorough voir dire of each

juror about the juror’s previous day’s contact with the spectators and the juror’s

subsequent discussions with other jurors about the incident.25 The trial judge asked

each juror open-ended questions about what each of them had seen.26 The trial

judge also questioned the jurors as to whether any of the events might affect their

ability to be fair and impartial in this case. Juror No. 1 “felt uncomfortable,”27 but

stated that nothing would affect his or her ability to be fair and impartial.28 Juror

No. 3 stated that he or she might be “a little apprehensive” and had discussed with

other jurors “leaving in groups.”29 Yet, each one indicated he or she would have

no bias for or against either side.

         12.    As the trial court pointed out, the public nature of any courthouse, and

the layout of the New Castle County Courthouse in particular, which does not

provide a separate elevator for jurors, makes some contact between spectators and



25
     Appellant’s Amended Appendix at A125-86.
26
     Appellant’s Amended Appendix at A134-86.
27
     Appellant’s Amended Appendix at A148.
28
     Appellant’s Amended Appendix at A147.
29
     Appellant’s Amended Appendix at A152-53.
                                                8
jurors inevitable. In this case, the only contact involved “eyeballing” and the

statement, “Hey, you. Hey, buddy.”

           13.   The trial judge found upon the conclusion of the voir dire that the

facts developed did not warrant the remedy of a mistrial. The court stated that the

events did not rise to the level of “intimidation.”30 There was no actual exchange

of words or information about the case. Moreover, the trial judge’s voir dire of

each juror reflected that, notwithstanding the spectator contact, each juror could

continue to be impartial and render a fair verdict. Under the circumstances, the

minimal contact between the jurors and the spectators does not amount to improper

influence and actual prejudice to the impartiality of the juror’s deliberations.

Further, Dixon has not shown that there were egregious circumstances of juror

taint that were inherently prejudicial to give rise to a presumption of prejudice.

           14.   Our sister courts in California and Massachusetts have dealt with

similar situations. In People v. Panah, “supporters of defendant were following or

‘shadowing’ the jurors during breaks in their deliberations, while others, including

[defendant’s] mother, were clustering near the jury while it was assembling on

breaks.”31 One of the jurors reported feeling intimidated.32 Although the

California Supreme Court found that a claim of juror bias was forfeited because the

30
     Appellant’s Amended Appendix at A192.
31
     People v. Panah, 107 P.3d 790, 846 (Cal. 2005).
32
     Id.
                                                       9
defense did not request a voir dire or raise an objection, the court nevertheless

found the claim meritless.33 The court held that the jurors’ concern did not support

a claim that defendant was denied an impartial jury.34 In Commonwealth v.

Womack, comments to the jurors “smack[ed] of juror intimidation.”35 The trial

judge conducted a voir dire of the jurors individually and four of the thirteen jurors

expressed some concern.36 One of the jurors “expressed being ‘a little concerned

when I leave . . . . There seems to be a lot of people in the area that are just kind of

staring down.’”37 Another juror stated: “[W]hen we walk in or come back from

lunch, they horde around the front of the building. They don’t easily let you pass.

And there are comments made . . . [such as] ‘That’s one of the jurors.’ And then I

just try and walk fast.”38 A third juror was made uncomfortable when the juror

walked out of the courthouse on the first day and one of the spectators asked,

“How’s your day?”39 A fourth juror expressed discomfort when spectators were

“gathering outside the court room when we’re trying to leave, and the possibility

that . . . they’ll see where our cars are parked.”40 However, all the jurors assured

33
     Id.
34
     Id.
35
     Commonwealth v. Womack, 929 N.E.2d 943, 952 (Mass. 2010).
36
     Id.
37
     Id. at 953.
38
     Id.
39
     Id.
40
     Id.
                                                10
the judge that their experience would not affect their ability to remain fair and

impartial, and the defense counsel did not object to the voir dire.41 The

Massachusetts Supreme Court deferred to the trial judge’s determination that each

juror remained impartial.42

           15.     Based on the record here, we find no error in the Superior Court’s

determination to deny the motion for a mistrial.

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

Court is hereby AFFIRMED.


                                                   BY THE COURT:




                                                   /s/ Karen L. Valihura
                                                   Justice




41
     Id.
42
     Id. at 954.
                                                 11
