Submitted: September 24, 2014
Court Below Superior Court of the State of Delaware, in and for New Castle County Cr. I.D. No. 1211005646A
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
Karen L. Valihura Justice
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. If a party did not raise an objection below, we review for plain error. Plain error is an error that is so clearly prejudicial to a defendant's substantial rights as to jeopardize the fairness and integrity of the trial.
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. 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. We do not believe the Superior Court abused its discretion in admitting the lineup evidence 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. 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. 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.
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 preserve an issue for appeal. 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." 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. 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."
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 instead sent the jurors down on the freight elevator. When the jurors got off the elevator, Juror No. 10 stated that he noticed the same two spectators "eyeballing" him. 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." 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.
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. At the end of the voir dire, both defense ...