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State v. Appiah

Superior Court of Delaware

November 26, 2019


          Date Submitted: September 11, 2019

         Upon Defendant Kenneth Appiahs 's Motion for New Trial. DENIED.

          Matthew C. Bloom, Esquire, Department of Justice, Wilmington, Delaware, Deputy Attorney General.

          Misty A. Seemans, Esquire, Office of the Public Defender, Wilmington, Delaware, Attorney for Defendant.


          JAN P. JURDEN, President Judge


         On March 19, 2019, a jury returned guilty verdicts against Defendant Kenneth Appiah for Burglary First Degree, Possession of a Firearm During the Commission of a Felony ("PFDCF"), Aggravated Menacing, Reckless Endangering First Degree, and Criminal Mischief. Appiah timely moves for a new trial pursuant to Superior Court Criminal Rule 33 on the basis that certain of the prosecutor's statements during the State's closing argument and rebuttal deprived him of his right to a fair trial.[1] For the reasons that follow, Appiah's Motion for New Trial is DENIED.


         Appiah was charged with Home Invasion, Burglary First Degree, PFDCF, Attempted Robbery First Degree, Reckless Endangering First Degree, and Criminal Mischief in connection with the December 13, 2017 shooting at the home of his former roommate, Aruna Kanu. On December 13, 2017, Kanu reported to police that Appiah entered his apartment, pointed a black handgun at him, and fired two rounds of ammunition through Kanu's bedroom door after Kanu ran into the bedroom and slammed the door.[2] The police collected two spent .32-caliber shell casings and one spent projectile from Kanu's apartment.[3]

         Later that night, on December 13, 2017, police reported to Appiah's home to question him regarding the shooting.[4] Appiah denied going to Kami's apartment, and gave police his .32-caliber Davis Industries pistol, Serial Number PI32309 for testing.[5] In July 2018, firearms examiner, Robert Freese ("Freese"), conducted a ballistic examination where he analyzed the recovered shell casings and projectile against ones test-fired from Appiah's firearm.[6] Based on sufficient agreement of their class and individual characteristics, Freese determined that the recovered shell casings were fired from Appiah's firearm.[7] On August 31, 2018, New Castle County Police arrested Appiah in connection with the December 13, 2017 shooting.[8]

         On March 12, 2019, Appiah's case went to a jury trial. Freese testified about the similarities of the shell casings and projectile recovered from Kamu's home and those test-fired from Appiah's firearm.[9] Freese concluded that "[t]he two cartridge cases that were submitted were fired from the submitted Davis Industries pistol, Serial Number P132309."[10]

         During closing argument, the prosecutor stated, "[O]fficers recovered the defendant's firearm and shell casings, and they matched."[11] Defense Counsel objected and moved for a mistrial.[12] The Court denied the motion for a mistrial, and instructed the prosecutor as follows:

THE COURT: There's no ground for a mistrial by what the State said. I want [the State] to go back and emphasize that was the expert testimony because I don't want it to sound like you are deciding that you are giving an opinion.[13]

         Following this instruction, the prosecutor advised the jury:

Just for brief clarification, it was Mr. Freese, firearms examiner, who concluded the shell casings were fired from that firearm.[14]

         During rebuttal, the prosecutor stated, "[t]he corroborating evidence, the firearm, the shell casing, the test-fired shell casings, and shell casing recovered match."[15] Defense Counsel again objected and moved for a mistrial.[16] The Court denied the request and instructed the prosecutor as follows:

THE COURT: I don't find it rises to the level of a mistrial. Once again, I'm going to ask [the State] to go back and parrot or paraphrase what the expert said because that's the only competent testimony about the casings and the weapon.
PROSECUTOR: Yes, Your Honor.
THE COURT: So you need to stop making these conclusory statements that they match. You need to refer it to specific testimony.[17]

         Following the Court's instructions, the prosecutor advised the jury:

Again, the test-fired shell casings . . . had many of the same characteristics, many of the same individual characteristics.[18]

         In response to Defense Counsel's request for a curative instruction, the Court declined to give a curative instruction, noting that it had already told the jury that the statements of counsel are not evidence, and that it would tell them again when it read the jury instructions to them.[19] The jury found Appiah guilty of Burglary First Degree, five counts of PFDCF, Aggravated Menacing (a lesser included offense of Attempted Robbery), three counts of Reckless Endangering First Degree, and Criminal Mischief. On June 14, 2019, Appiah filed this Motion for New Trial.[20]


         Appiah claims his right to a fair trial was unfairly prejudiced as a result of prosecutorial misconduct stemming from the State's remarks that the shell casings recovered from the shooting matched Appiah's firearm.[21] Appiah contends this was a "close case" where the ballistic evidence was a critical issue, and the State's error was not mitigated because it was repeated in rebuttal and a curative instruction was not given.[22]

         In opposition, the State argues that the prosecutor's statements were not improper because the prosecutor summarized the firearms examiner's findings and, even assuming arguendo the statements were improper, this was not a close case, identity was a central issue-not ballistic evidence, and the prosecutor amended his comments by reciting the firearms examiner's testimony.[23]


         Superior Court Criminal Rule 33 provides, "[t]he Court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice."[24] A new trial is warranted "only if the error complained of resulted in actual prejudice or so infringed upon defendant's fundamental right to a fair trial as to raise a presumption of prejudice, "[25] and the grounds for the new trial must have been asserted during the original trial.[26] Because the trial judge is in the best position to measure the risk of prejudice from events at trial, the decision to grant a new trial in the interest of justice rests in the trial judge's very broad discretion.[27]

         The standard for reviewing prosecutorial misconduct claims depends on whether the issue was fairly presented at trial.[28] If defense counsel raised a timely objection to the conduct at trial, or if the trial judge considered the issue sua sponte, then the conduct is reviewed for harmless error.[29] Here, Defense Counsel raised timely objections at trial, and therefore, the Court will review for harmless error.[30]

         Under harmless error review, the Court conducts a review of the "record to determine whether the prosecutor's actions were improper."[31] If the Court determines that no misconduct occurred, then the analysis ends.[32] However, if the Court determines that prosecutorial misconduct occurred, then the next inquiry is whether the misconduct prejudicially affected the defendant.[33]

         The prosecutor plays a special role in the adversarial system that is not limited to representing the State but also includes the responsibility as a minister of justice.[34]The Court relies on the American Bar Association ("ABA") standards for analyzing prosecutorial conduct and deciding whether a prosecutor's statements are improper.[35] Consistent with the ABA standards, a prosecutor may not misrepresent the ...

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