Submitted: Nov. 13, 2013.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below— Superior Court of the State of Delaware, in and for New Castle County, Cr. A. No. 1205011761.
RANDY J. HOLLAND, Justice.
This 20th day of November, 2013, it appears to the Court that:
1) The defendant-appellant, Raymond Saunders (" Saunders" ), appeals his criminal convictions following a jury trial in the Superior Court for Possession of a Tier 4 Quantity of a Controlled Substance, Possession of a Tier 2 Quantity of a Controlled Substance with an Aggravating Factor, Conspiracy in the Second Degree, Conspiracy in the Third Degree, Possession of Marijuana, and Possession of Drug Paraphernalia.
2) Saunders raises two claims on appeal. First, Saunders contends that the trial court abused its discretion in denying his motion for a mistrial following the revelation of a Brady  violation for not disclosing a recorded statement by a State's witness. Second, Saunders submits that it was reversible error, during closing argument, for the prosecutor to refer to a witness's testimony as completely " candid."
3) We have concluded that both of Saunders' arguments are without merit. Therefore, the judgments of the Superior Court are affirmed.
4) A joint task force of the United States Drug Enforcement Agency (" DEA" ), the City of Newark Police Department, and the New Castle County Police Department investigated Saunders for drug dealing by using a confidential informant (the " CI" ). The investigation leading up to Saunders' arrest involved two controlled purchases of cocaine. The controlled buys were arranged by recorded telephone calls between the CI and Saunders. On both occasions, agents monitored the transactions by remote audio and video.
5) Given this information, officials obtained and executed a search warrant at Saunders' residence. The search yielded a small amount of marijuana and drug paraphernalia. Saunders also admitted to police that he had directed his co-defendant girlfriend to flush marijuana down a toilet when he heard the officers knock and announce their presence.
6) On the first day of trial, the CI testified about the two controlled purchases and admitted that he had cooperated with law enforcement in order to reduce his own criminal penalties for drug dealing. The State called DEA Agent Hughes to explain the protocol for law enforcement's use of confidential informants. During his testimony, Agent Hughes mentioned that an audiotape existed of his conversation with the CI regarding the prospect and terms of his cooperation with the Saunders investigation. Defense counsel moved for a mistrial on grounds that the tape constituted Brady  material that had not been timely disclosed.
7) Prior to the second day of trial, the prosecutor obtained a copy of the tape from police and provided it to the trial judge for an in camera review. The trial judge denied Saunders' motion for a mistrial but allowed defense counsel to review portions of the tape relevant to impeachment. Although the CI was made available to be recalled, defense counsel did not seek another opportunity to cross-examine him after hearing the audiotape.
8) During closing argument, the State acknowledged that the CI's credibility was a central issue in the case. The prosecutor attempted to ameliorate the CI's admitted self-interest by characterizing the testimony as " completely candid." Defense counsel objected and moved for a mistrial. The trial court sustained the objection and gave an immediate curative instruction to the jury that " the credibility of each of the witnesses who testified before you is within your sole province to determine." The trial judge ...