Submitted July 17, 2013.
Corrected: Oct. 8, 2013.
[Copyrighted Material Omitted]
Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr. ID No. 1111010324.
Upon appeal from the Superior Court.
Nicole M. Walker, Office of the Public Defender, Wilmington, Delaware for appellant.
Maria T. Knoll, Department of Justice, Wilmington, Delaware for appellee.
Before STEELE, Chief Justice, BERGER and JACOBS, Justices.
STEELE, Chief Justice:
In a trial focusing primarily on the testimony of three key witnesses, a Superior Court jury found Defendant-Appellant Davear Whittle guilty of Murder in the Second Degree, Possession of a Firearm During the Commission of a Felony, Reckless Endangering in the First Degree, and Possession of a Firearm by a Person Prohibited. This appeal addresses whether the prosecutor improperly vouched for the credibility of those three witnesses in his closing argument, by stating that they were " right" or " correct" at least 20 times. We conclude that the prosecutor's conduct about which Whittle complains amounts to improper vouching and constitutes plain error. Therefore, we REVERSE the judgment of the Superior Court and REMAND for a new trial.
I. FACTUAL AND PROCEDURAL HISTORY
On August 1, 2010, around 10 p.m., Namil Owens, Donald Williams, LeAndre Prince, and another man drove to 330 Townsend Street in Southbridge, Delaware. There, Prince bought marijuana from various people on the street. Owens and Williams then dropped off Prince and the other man at the Winchester Bridge in Southbridge and headed back to Townsend Street to buy more drugs, and possibly attempt to scam the drug dealers.
When they arrived back at Townsend Street, Owens parked behind a Ford Taurus outside 328 Townsend Street. Cammellia Stewart, who lived at 328 Townsend Street, and her friend Mia Biddle, were sitting in the Taurus. Leaving Williams in the passenger seat, Owens got out of his car and unsuccessfully attempted to buy drugs from Davear Whittle, who is nicknamed " Snizz." When Owens returned to his car, another man approached Owens' window and asked Owens and Williams if they were the ones who wanted to buy marijuana. Owens responded that they were no longer interested. Williams then yelled, " [H]e's pulling out a gun," apparently referring to the man standing at Owens' window. But before the man at Owens' window could pull out his gun, Owens heard shots fired " on the passenger side from the rear of the car." Upon hearing the shots, Owens immediately drove away. After driving a couple of blocks, Owens pulled over and discovered that Williams was dead. Owens then
called the police and walked away, leaving the car behind.
At trial, the testimony of Biddle, Stewart, and Owens comprised most of the State's evidence. Stewart and Biddle knew Whittle by the name of Snizz because he dated Stewart's sister. Biddle testified that she ducked down in her car upon hearing gunshots, but was still able to see Whittle shooting from some steps through the back passenger window. After the shooting, Biddle saw Whittle running into Stewart's house with a gun. She could not tell if there was more than one shooter. Stewart testified at one point that she saw Whittle shoot at Owens' car, but during cross-examination testified that she ducked after the shooting started and did not actually see Whittle firing a gun. After Stewart looked up, she saw Whittle running into her house, but did not see him carrying a gun. Owens, who was admittedly high on heroin the day of the shooting, also testified that he did not see a shooter and was unsure whether there was more than one person shooting.
The testimony of Biddle, Stewart and Owens is replete with contradictions and inconsistencies. Stewart initially testified that she saw Whittle shooting at Owens' car, but later Stewart admitted that she did not see Whittle shooting, or even carrying, a gun. Biddle testified that she could see Whittle clearly during the shooting because he was standing under a street light; however, Stewart testified that the street light outside her house was not working and there were only two other streetlights in the area. One streetlight was a couple of doors up and the other was across the street. Biddle and Stewart testified that Whittle told them the bandage on his leg covered up a fresh tattoo, but medical records showed that the bandage was actually treatment for a burn. In an initial photograph lineup, Stewart did not point out Whittle to the police, yet she identified him more than a week later and then again at trial. Stewart also testified that Whittle had a tattoo on his arm that read " S-B," but a photograph introduced into evidence by the State showed that Whittle did not have a tattoo matching that description. Finally, after the shooting occurred and Stewart and Biddle drove off, Stewart testified that it took them only 30 to 45 minutes to return to the scene, while Biddle testified that it took them two or three hours.
Other than that witness testimony, the State presented only a small amount of physical evidence. The State had a forensic firearms expert examine the bullets found in Owens' car. The expert testified that the trajectory of the bullets showed that the shooter must have been standing directly behind Owens' car. The expert further testified that ballistics evidence indicated that at least three of the four bullets recovered were fired from the same gun. No gun was introduced into evidence, however. As mentioned, medical records confirmed that Whittle had a burn on his left leg, which proved relevant to Biddle and Stewart's testimony that Whittle had a bandage on his leg the night of the shooting. Finally, after the shooting, an apparently bloody white t-shirt was found in Stewart's bathroom, but the police never performed a chemical test on that t-shirt to determine whether the substance was actually blood. Although the t-shirt may have had some relevance (because the witnesses testified that Whittle was wearing a white t-shirt on the day of the shooting), its probative value in determining whether Whittle was the shooter seems unclear (and minimal at best).
In July 2012, a Superior Court jury found Whittle guilty of Murder in the Second Degree, Possession of a Firearm During the Commission of a Felony, Reckless Endangering in the First Degree, and Possession of a Firearm by a Person Prohibited. During his closing argument, the prosecutor stated at least 20 times that the witnesses were " right" or " correct" about various assertions in their testimony. On this direct appeal, Whittle alleges that the prosecutor improperly vouched for the witnesses, which deprived him of his right to a fair trial.
II. STANDARD OF REVIEW
We review alleged prosecutorial misconduct, such as improper vouching, for plain error where the defendant did not object to the asserted prosecutorial misconduct at trial, and the trial judge failed to intervene sua sponte.  In plain error review, we examine the record de novo to determine whether prosecutorial misconduct occurred.
If we determine that the prosecutor did not engage in misconduct, the analysis ends. But, if we find that the prosecutor erred, we apply the Wainwright v. State plain error standard, which requires the error to be " so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."  Further, we find plain error only for " material defects which are apparent on the face of the record [,] which are basic, serious and fundamental in their character, and which clearly deprive ...