      IN THE SUPREME COURT OF THE STATE OF DELAWARE


AARON O. LOWMAN,                        §
                                        §      No. 23, 2015
      Defendant Below,                  §
      Appellant,                        §
                                        §      Court Below – Superior Court
      v.                                §      of the State of Delaware in
                                        §      and for Kent County
STATE OF DELAWARE,                      §
                                        §      Criminal ID No. 1305008595
      Plaintiff Below,                  §
      Appellee.                         §

                         Submitted: August 26, 2015
                          Decided: August 28, 2015

Before STRINE, Chief Justice; VALIHURA, and SEITZ, Justices.

                                  ORDER

      This 28th day of August 2015, upon consideration of the parties’

briefs and the record below, it appears to this Court that:

      (1)    On October 22, 2014, a Superior Court jury convicted

Appellant Aaron O. Lowman of possession of a firearm by a person

prohibited, possession of a firearm during the commission of a felony,

possession of firearm ammunition, disregarding a police signal, resisting

arrest, driving with a suspended or revoked license, aggressive driving,

improper passing on the left, improper lane change, failure to have lights on,
and speeding. 1 Prior to sentencing, the State filed a Motion to Declare

Lowman a Habitual Offender under 11 Del. C. § 4214(b). 2 The Superior

Court granted the motion and sentenced Lowman to life in prison without

the award of good time. 3

       (2)    Lowman appeals his convictions. He argues that the Superior

Court erred in denying his motion for a mistrial after a witness for the State

started to testify about a transaction in which Lowman was involved where

he acquired a handgun in exchange for drugs. We find that the Superior

Court did not abuse its discretion when it denied the motion. We therefore

affirm the judgment of the Superior Court.

       (3)    On the evening of June 15, 2013, Delaware State Police

Detective Matthew Long and Delaware Department of Probation and Parole

officer David Angelo were driving in Smyrna, Delaware in an unmarked

Chevrolet Impala. They spotted Lowman, whom they knew was wanted on

outstanding criminal charges. 4 Lowman was driving a rented beige Nissan

Altima registered in North Carolina. 5



1
  App. to Opening Br. at 1-2 (Superior Court Docket), 6-22 (Indictment).
2
  Id. at 4 (Superior Court Docket).
3
  Opening Br. at 5.
4
  App. to Opening Br. at 28 (Trial Transcript); App. to Answering Brief at 2 (Trial Test.
of Angelo, Oct. 21, 2014).
5
  App. to Opening Br. at 30 (Trial Test. of Long, Oct. 21, 2014).



                                           2
       (4) Detective Long and Officer Angelo attempted to stop the Nissan.6

Officer Angelo got out of the police vehicle with his gun drawn and

identified himself as a probation and parole officer. He addressed Lowman

by name and told him to step out of the car.7 Instead of complying, Lowman

sped away. 8 Detective Long and Officer Angelo chased the Nissan with

warning lights on at speeds exceeding 100 miles per hour. A camera in the

police car recorded the high speed chase. Lowman managed to pull away,

and the officers discontinued the chase.9

       (5)     Long and Angelo came across the Nissan again later in the

evening and resumed pursuit.10 Lowman managed once again to pull away

from the police vehicle, but Long and Angelo ultimately found the Nissan on

State Route 9, overturned on its roof. 11

       (6)     As Detective Long and Officer Angelo approached the Nissan,

they saw Lowman break the glass out of the back window, crawl out of the

vehicle, and attempt to run away. 12 Detective Long used his taser to subdue

Lowman and then put him in handcuffs.13


6
  Id.
7
  App. to Answering Br. at 2 (Trial Test. of Angelo, Oct. 21, 2014).
8
  Id.
9
  App. to Opening Br. at 32-39 (Trial Test. of Long, Oct. 21, 2014).
10
   Id. at 40.
11
   Id.; App. to Answering Br. at 2 (Trial Test. of Angelo, October 21, 2014).
12
   App. to Opening Br. at 42-44 (Trial Test. of Long, Oct. 21, 2014).
13
   Id. at 45-46.

                                            3
       (7)     Lowman’s girlfriend, Marshay Johnson, who was also charged

in the matter, was inside the Nissan.14 The officers took Lowman from the

scene to Christiana Hospital for medical treatment. 15 After a tow truck

arrived and turned the Nissan upright, Delaware State Police Officer David

Hake, Jr. searched the vehicle and found a loaded handgun on the driver’s

floorboard and a package of .22 caliber ammunition underneath the

dashboard above the gas pedal. 16

       (8)     Nine days later, Detective Long interviewed Lowman at the

James T. Vaughn Correctional Center. He read Lowman a Miranda warning

and Lowman confirmed that he understood his rights.                      Detective Long

attempted to record the interview but the quality of the recording turned out

to be poor.17 The interview was difficult to hear on the recording 18 and the

recording was not introduced into evidence at Lowman’s trial. 19 Detective

Long testified at Lowman’s trial that in the course of the interview Lowman

told Detective Long that the handgun and ammunition found in the Nissan

belonged to him. 20



14
   Id. at 44-45.
15
   Id. at 49.
16
   App. to Opening Br. at 69-70 (Trial Test. of Hake, Oct. 21, 2014).
17
   App. to Opening Br. at 106-07 (Trial Test. of Long, Oct. 21, 2014).
18
   Id. at 107.
19
   Opening Br. at 21.
20
   App. to Opening Br. at 118 (Trial Test. of Long, Oct. 21, 2014).

                                            4
       (9)    The State called Detective Long as a witness at Lowman’s trial.

The following exchange took place between the prosecutor and Detective

Long, regarding the interview with Lowman at the Vaughn Correctional

Center:

       Prosecutor:           What did he say about the handgun?

       Detective Long:       I asked him questions about the handgun.
                             What Mr. Lowman advised to me is that he
                             obtained the handgun from what he
                             described as a fiend, or someone who
                             commonly abuses drugs. What he explained
                             to me was that he traded three grams of
                             crack cocaine – 21

Interrupting the testimony, defense counsel objected and moved for a

mistrial.    The prosecutor informed the court that the witness had been

instructed not to bring up drugs during his testimony. 22 Defense counsel

argued that Detective Long’s testimony was highly prejudicial to Lowman

because it introduced evidence of an uncharged crime. 23



21
   Id. at 108.
22
   App. to Opening Br. at 109 (Trial Transcript). This Court has previously directed the
State to “prepare their witnesses to avoid the risk of prejudice from unnecessary
references” to past alleged criminal acts on the part of defendants. Justice v. State, 947
A.2d 1097, 1102 n. 27 (Del. 2008). “Evidence of other crimes, wrongs or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Del. R. Evid. 404(b). It appears in this case the caution was given to the
witness, but the witness inadvertently referenced the alleged drug transaction when
testifying about Lowman’s account of how he had come into possession of the handgun
found in the Nissan.
23
   Id.

                                            5
        (10) The trial judge applied the four-factor test established by this

Court in Pena v. State 24 to evaluate whether the unsolicited comment from

Detective Long was sufficiently prejudicial to merit a mistrial.           After

reviewing all of the factors, the court found the factors weighed against a

mistrial. Citing Lowman’s admission to the police that the handgun and

ammunition discovered in the rental car belonged to him, the court

concluded that the case was not a close one and thus Lowman was not likely

prejudiced by Long’s testimony. The court also believed that a curative jury

instruction was sufficient to mitigate any prejudice. 25 The court denied the

motion for a mistrial and instructed the jury as follows:

        Earlier you may have heard the officer, who was on the stand,
       testify and provide testimony which indicated that the handgun
       was obtained through someone who commonly abuses drugs.
       And it was explained to him that, perhaps, the drugs were
       traded for prohibited contraband. You are to ignore that
       statement. That has no bearing on this case. It is to be stricken
       from the record, and you are not to consider it at all in any
       determination you have in this case.26

       (11) Lowman argues on appeal that the Superior Court abused its

discretion in denying his motion for a mistrial. Lowman contends that, in its

application of the Pena factors, the Superior Court gave insufficient weight


24
   856 A.2d 548 (Del. 2004).
25
   App. to Opening Br. at 112-115 (Trial Transcript).
26
   Id. at 118.



                                            6
to the prejudice Lowman suffered as a result of Long’s testimony, and

overstated the ability of the instruction to cure the prejudice. In Lowman’s

view, when the jury heard evidence that Lowman was guilty of uncharged

drug dealing, it encouraged them to improperly infer that he was guilty of

the firearms offenses because of the prevalent association in crime statistics,

the media, and popular culture of drug dealing with firearms possession.

According to Lowman, the curative instruction was insufficient to mitigate

the prejudice because the instruction simply called attention once more to

the testimony and emphasized its importance.

         (12) The State argues in response that the trial judge properly

applied the Pena factors in determining that a mistrial was not warranted.

The State notes that Detective Long’s testimony was “isolated and not

repeated.” 27 The State also emphasizes that it was the defense that first

introduced drug evidence at trial, by questioning Detective Long about the

marijuana grinder found in Lowman’s pocket. The State contends that the

case was not close on guilt and thus Lowman was not likely prejudiced by

Detective Long’s remarks.      Finally, the State argues that the curative

instruction mitigated any prejudice to Lowman.




27
     Answering Br. at 12.

                                      7
       (13) Whether to grant a mistrial after an unsolicited response by a

witness rests within the trial judge’s sound discretion. 28 We review the

denial of a motion for mistrial in these circumstances for abuse of discretion

or a denial of a substantial right of the complaining party. 29 The decision

will be reversed on appeal only if it is based on unreasonable or capricious

grounds.30

       (14) As an initial matter, we are skeptical that Detective Long’s

testimony was improper. The State asked a non-leading question that did

not suggest an answer relating to drugs. The gun for drugs transaction was

directly relevant to one of the central issues in the case – whether the

handgun and ammunition found in the rented Nissan belonged to Lowman.

       (15) Assuming, as the parties have in this appeal, that Detective

Long should not have referred to drugs in his testimony, we review the

Superior Court’s application of the four factor test adopted by this Court in

Pena: (1) the nature or frequency of the conduct or comments; (2) the

likelihood of resulting prejudice; (3) the closeness of the case; and (4) the




28
   Taylor v. State, 690 A.2d 933, 935 (1997) (citing Johnson v. State, 311 A.2d 873, 874
(1973)).
29
   Justice v. State, 947 A.2d 1097, 1102 (Del. 2008) (quoting Pena v. State, 856 A.2d
548, 550 (Del. 2004)).
30
   Banther v. State, 977 A.2d 870, 890 (Del. 2009) (citing Zimmerman v. State, 628 A.2d
62, 65 (Del. 1993)).

                                           8
sufficiency of the trial judge’s efforts to mitigate any prejudice. 31 Applying

the Pena factors to this case, we find no abuse of discretion.

       (16) First, Detective Long’s comments were “neither persistent nor

frequent.”32 Long’s reference to Lowman’s alleged participation in a drug

transaction amounted to a lone remark that was not repeated. It was an

“isolated occurrence.” 33

       (17) Second and third, although there was a risk of resulting

prejudice from the testimony, the likelihood that Lowman was prejudiced by

Long’s comments was slight in this case because the case was not a close

one. The evidence against Lowman on the firearm possession charges –

possession of a firearm by a person prohibited and possession of a firearm

during the commission of a felony – was overwhelming.                Lowman

stipulated that he was a person prohibited from possessing a firearm. 34 His

commission of the felony – disregarding a police officer’s signal – was

caught on the police car camera. 35 Detective Long saw him crawling out of

and fleeing from the car involved in the chase, in which the handgun and




31
   Pena, 856 A.2d at 550-51 (citation omitted).
32
   Copper v. State, 85 A.3d 689, 694 (Del. 2014).
33
   Id.
34
   App. to Opening Br. at 24 (Trial Transcript).
35
   Id. at 32-39 (Trial Test. of Long, Oct. 21, 2014).

                                              9
ammunition were found. Lowman later admitted to Detective Long that the

gun and ammunition belonged to him. 36

       (18) Finally, the curative instruction given to the jury by the trial

judge was a meaningful and practical alternative in this case to declaring a

mistrial. 37 As our cases recognize, curative instructions can be effective to

address problematic testimony. 38 Given the reality that the drug charges

against Lowman had been dropped, the curative instruction for the jury to

focus solely on whether Lowman had possession of the fireman was

sufficient in these circumstances. Detective Long’s testimony was not the

kind of prejudicial testimony that is so powerful that a curative instruction

could not neutralize the harmful effects.

       (19) The trial judge properly assessed the factors for determining

whether a mistrial must be ordered, and concluded that a sufficient

alternative to a mistrial existed in a curative instruction, which he promptly

issued to the jury.




36
   Id. at 42-43, 118.
37
   See Justice, 947 A.2d at 1100 (“A mistrial is appropriate only when there are no
meaningful or practical alternatives to that remedy or the ends of public justice would
otherwise be defeated.”).
38
   Pena, 856 A.2d at 551 (citation omitted); accord Copper, 85 A.3d at 695; McNair v.
State, 990 A.2d 398, 403 (Del. 2010); Purnell v. State, 979 A.2d 1102, 1109 (Del. 2009);
Revel v. State, 956 A.2d 23, 27 (Del. 2008).

                                          10
     NOW, THEREFORE IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                   BY THE COURT:

                                   /s/ Collins J. Seitz, Jr.
                                          Justice




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