Submitted: February 25, 2015
Court Below-Superior Court of the State of Delaware in and for Sussex County, Delaware Cr. ID No. 1305019727
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
This 12 day of March 2015, it appears to the Court that:
(1) The defendant-below/appellant Derrell Snipes ("Snipes") appeals from a Superior Court's order denying his motion for a mistrial, and a subsequent jury conviction of Possession of a Firearm by a Person Prohibited ("PFBPP") and Possession of Ammunition by a Person Prohibited ("PABPP").
(2) Snipes raises one claim of error in this appeal. Snipes contends that the trial court abused its discretion by not declaring a mistrial after the jury was informed three times by a testifying police officer that there had been a prior trial. We find no merit to Snipes' claim and affirm the Superior Court's judgment of convictions.
(3) On May 24, 2013, Dover Police Department Patrolman First Class John Michael Willson ("Patrolman Willson") was on patrol at 2 a.m. on South New Street in Dover when he observed a group of 15 to 20 people gathering in front of the Colonial Apartments at 132 South New Street. Patrolman Willson reported the situation to his supervisor, Sergeant Spicer ("Sgt. Spicer"). Sgt. Spicer ordered Patrolman Willson to return to the Dover Police station, gather other officers, and devise a plan. Willson contacted Master Corporal Brian Sherwood ("Master Corporal Sherwood"), Patrolman First Class Joseph Bauer ("Patrolman Bauer") and Patrolmen Matthew Krogh ("Patrolman Krogh"), James Wood ("Patrolman Wood"), and Brian Schmidt, and requested they meet him at the Dover Police station.
(4) At the police station, the police officers were able to observe the civilians assembled on South New Street via a remote camera that was transmitting images to two 72 inch high definition screens. They observed Trevor Jenkins ("Jenkins") walk to a silver Mercury Marquis automobile parked on South New Street, retrieve an object from the driver's compartment, and place it in his right rear pocket. Next the officers saw Warren Brooks ("Brooks") walk to the same car, open the trunk, remove a long object covered with clothing or cloth, and walk to an alleyway fence. Brooks then set the object on the other side of the fence where it was retrieved by Snipes.
(5) In response to what Sgt. Spicer thought to be an imminent shooting, Patrolman Willson and Master Corporal Sherwood were dispatched to New Street and the other four officers were sent to South Queen Street. Upon arrival at South Queen Street, Patrolman Krough and Patrolman Wood shined a flashlight down an alleyway and saw approximately 15 individuals. Three of the individuals, Brooks, Jenkins, and Snipes, saw the officers and began to run.
(6) Patrolman Wood chased Snipes. With Patrolman Wood in pursuit, Snipes stopped as he ran deeper into the alley, threw the object he was carrying into a grassy area next to a tree, and began walking back toward the group of individuals who did not run. Patrolman Wood was within ten feet of Snipes when he witnessed Snipes throw the cloth package to the ground. Patrolman Wood took Snipes into custody as he started to walk back towards the group. The object Snipes had thrown on the ground was retrieved by Patrolman Bauer. It was thereafter determined that the cloth covered object was a sawed-off shotgun containing two 12-gauge rounds. Brooks and Jenkins were also captured and taken into police custody.
(7) The trials of Brooks, Jenkins, and Snipes were consolidated. A jury found Snipes guilty of resisting arrest, but could not reach a unanimous verdict as to Snipes and Jenkins on the charges of PFBPP or PABPP.
(8) In April 2014, Snipes and Jenkins were retried in a consolidated trial for the firearm offenses. On cross-examination by defense counsel, Master Corporal Sherwood mentioned a prior trial on three separate occasions. First, when asked by Jenkins' defense counsel if he had viewed the surveillance video, Master Corporal Sherwood stated "[t]he last time I viewed it was at the last trial.55 Master Corporal Sherwood was later asked by Snipes5 defense counsel whether he had reviewed a written report by the chief investigating officer, and Master Corporal Sherwood responded, "[a]t the last trial I did, yes.55 After some additional questions about the report, Snipes5 counsel asked, u[y]ou indicated you read it?55 and Master Corporal Sherwood replied, "I read it at the beginning of the last trial, yes.55 At no time did either of defendants5 counsel object to Master Corporal Sherwood's references to the prior trial.
(9) Shortly thereafter, the trial court ordered a recess for lunch. After the jury left the courtroom, the trial court addressed its concern regarding Master Corporal Sherwood mentioning the prior trial three times during his testimony. Both Snipes5 and Jenkins5 attorneys requested a curative instruction that stated "there was a reference to a prior trial and that information should be disregarded.55
(10) However, after the lunch recess, Snipes' counsel informed the trial court that she did not think a curative instruction would suffice and moved for a mistrial. Jenkins joined Snipes in the motion for a mistrial. The trial court denied the motion for a mistrial. The court reasoned that the references in question were made by only one witness, there were no references to prior ...