White v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
JASON WHITE, § No. 328, 2020
§
Defendant Below, § Court Below – Superior Court
Appellant, § of the State of Delaware
v. §
§ I.D. No. 1808010617 (N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: June 9, 2021
Decided: August 6, 2021
Before VALIHURA, TRAYNOR, and MONTGOMERY-REEVES, Justices.
Upon appeal from the Superior Court. AFFIRMED.
John S. Malik, Esquire (argued), Wilmington, Delaware; for Appellant Jason White.
Matthew C. Bloom, Esquire (argued), DELAWARE DEPARTMENT OF JUSTICE,
Wilmington, Delaware; for State of Delaware.
1
MONTGOMERY-REEVES, Justice:
In 2019, Jason White was convicted of eight crimes related to possessing and dealing
narcotics. White has filed a timely direct appeal, arguing that the Superior Court abused its
discretion by allowing the State to admit text messages without proper authentication and
that the prosecutor made improper comments during his rebuttal summation by misstating
the burden of proof, denigrating the role of defense counsel, and vouching for evidence.
Having reviewed the parties’ briefs and record on appeal, and after oral argument, this
Court affirms the Superior Court’s judgment. The State provided sufficient evidence to
authenticate the text messages, and the prosecutor did not make improper remarks
warranting reversal during his rebuttal summation.
I. RELEVANT FACTS AND PROCEDURAL BACKGROUND
A. The Police Arrest White and Recover Evidence of Drug Possession and
Drug Dealing
On August 16, 2018, the New Castle County Police Department (the “NCCPD”)
executed a warrant to search a residence located on Cross Avenue in New Castle, Delaware
(the “Cross Avenue Residence”).1 The NCCPD obtained the search warrant as part of an
investigation into suspected narcotics dealing.2
1
App. to Opening Br. 20-21, at 39:12-42:11 (hereinafter, “A_”).
2
A20, at 39:15-40:2.
2
The primary breaching officer knocked on the front door, announced the presence of
police, waited a few moments, and then broke down the door and entered the residence.3 At
about the same time, another officer broke through a bathroom window and moved the
curtains to observe the bathroom and ensure that no evidence was flushed down the drain.4
That officer saw the Appellant, Jason White, attempting to enter the bathroom.5 After
noticing the officer, White ignored orders to stop and retreated back into the residence.6
Inside, the officers who entered the Cross Avenue Residence through the front door
encountered two adults, a child, and two dogs.7 The officers allowed one of the adults to
place the dogs in cages.8 After the dogs were secured, the officers noticed a third adult—
White—standing in a hallway towards the back of the residence.9 White appeared to bend
down, pick something up, and throw the object into a bedroom located in the back-right
corner of the residence.10 Afterwards, White moved into the back-right bedroom,
disappearing from the officers’ fields of view.11 The officers repeatedly ordered White to put
3
A40, at 120:10-23.
4
See id.
5
A41, at 121:10-122:8.
6
Id. at 122:18-19.
7
A45, at 5:12-18.
8
Id. at 6:6-13.
9
Id. at 7:5-14. While sweeping the Cross Avenue Residence officers found one more adult and two
more children, meaning that a total of seven people—four adults and three children—were present
at the time of the search. A22, at 47:6-15.
10
A45, at 7:5-11.
11
Id. at 7:11-14.
3
his hands up and exit the bedroom.12 White did not comply immediately, but returned to the
hallway after a few seconds and surrendered.13
After securing the scene, the officers searched the Cross Avenue Residence for
evidence of narcotics dealing.14 The residence contained three bedrooms, an addition being
used as a sleeping area, a living room, and a bathroom.15 In the living room, the officers
found a digital scale and a glass smoking pipe.16 In White’s bedroom, the officers found a
small amount of marijuana, boxes of empty plastic baggies, cut straws, and a smoking pipe.17
The officers also found three cellphones in White’s bedroom manufactured, respectively, by
Alcatel, Coolpad, and ZTE.18
In the back-right bedroom, which belonged to a woman who was not home during
the search, officers found a substantial quantity of narcotics, including more than a dozen
bags of heroin;19 more than three dozen pills that appeared to be oxycodone;20 and
methamphetamine that had been spilled onto the carpet.21 Subsequent lab tests confirmed
the presence of more than twelve grams of a heroin-fentanyl mixture;22 more than thirty-
12
Id.
13
Id.
14
See A22, at 48:4-14.
15
Id. at 45:17-46:7; A30, at 79:6-13.
16
A28, at 69:18-70:4.
17
A23, at 51:2-52:5.
18
A62, at 73:20-76:9.
19
A61, at 71:2-23; A30, at 77:16-20; A27, at 67:7-13.
20
A25, at 60:12-16.
21
A26, at 61:11-62:19.
22
A57, at 55:4-19.
4
eight grams of a methamphetamine-fentanyl mixture;23 and numerous fentanyl pills.24 The
officers did not find evidence of note in the other parts of the residence.
At the scene, the chief investigating officer asked White about the narcotics recovered
from the back-right bedroom.25 White denied any knowledge but asked for an ambulance
to clean his hands because “he believed” that they were “contaminated” with something and
he “didn’t want it to spread.”26 The officers arrested White and took him to NCCPD
headquarters, where he agreed to a second interview.27 During the second interview, White
admitted to selling heroin and methamphetamine and claimed that all of the narcotics found
at the Cross Avenue Residence belonged to him.28
B. The Jury Convicts White of Drug-Possession and Drug-Dealing Offenses
A Grand Jury charged White with eight counts related to drug dealing and possession:
three counts of felony Drug Dealing; two counts of felony Aggravated Possession of drugs;
and three misdemeanor counts of Endangering the Welfare of a Child.29 At trial, the State
offered testimony from the chief investigating officer, another officer who participated in the
August 16 raid, a lab technician who provided expert testimony about the evidence
recovered from the Cross Avenue Residence, and an NCCPD detective who provided expert
23
A58, at 57:8-15.
24
See A59-60, at 63:12-65:18.
25
A28, at 70:11-19.
26
Id. at 70:20-71:9.
27
A64, at 83:1-9.
28
A74, at 121:6-10; A88, at 15:13-16.
29
A7-10.
5
testimony on the narcotics trade.30 Among other things, the witnesses recounted
incriminating information linking White to the narcotics found at the Cross Avenue
Residence,31 and White’s confession to possessing and dealing narcotics.32
In addition to this testimony, the State introduced text messages downloaded from the
ZTE cellphone found in White’s bedroom.33 The text messages appeared to show the
phone’s user arranging narcotics transactions.34 The State claimed that the phone belonged
to White because it was found in his bedroom;35 and because it contained a message from a
contact named “Cass” informing the user, “[T]old the lady down the block ya name Jason
White.”36 A little more than a day later, the phone’s user appears to have responded with
“okay.”37 The State offered testimony at trial that White’s significant other was named
“Cassie,” and there were numerous text messages between the phone’s user and “Cass”
suggesting that they were in an intimate relationship.38 The NCCPD did not seek the phone’s
30
See A11-105.
31
See, e.g., A51-61 (testimony from a lab technician confirming that the NCCPD recovered
narcotics from the Cross Avenue Residence); A90-96 (expert testimony that the physical evidence
recovered from the Cross Avenue Residence was consistent with drug dealing).
32
A74, at 121:6-10; A88, at 15:13-16.
33
A62, at 73:20-76:21.
34
See, e.g., A70, at 105:19-106:4.
35
See A62, at 73:30-76:9.
36
A63, at 78:12-79:3.
37
Id. at 78:9-13.
38
A63, at 77:8-12; A69, at 104:20-22.
6
subscriber information,39 and the phone’s operating system identified its primary user with
the apparent pseudonym “Joe Schmoe.”40
The State also offered wiretap recordings from a separate investigation that may have
captured White making incriminating statements,41 including a conversation in which White
purportedly admitted that he tried to hide and destroy evidence of narcotics dealing during
the August 16 raid.42 The Superior Court raised some doubt about whether this recording
was sufficiently audible to understand what was said, but the recording was played for the
jury and admitted into evidence.43
White chose to rest on the State’s case and did not provide a separate presentation of
evidence.44 The jury convicted White on all counts,45 and the Superior Court imposed
sentences that were within the applicable sentencing guidelines.46
II. ANALYSIS
White has filed a timely direct appeal raising two issues. First, whether the Superior
Court abused its discretion by allowing the State to admit text messages downloaded from
39
See, e.g., A69, at 103:1-6.
40
See, e.g., id., at 102:9-20.
41
See A77-79, at 136:21-144:5.
42
A79, at 143:4-23.
43
See A81, at 152:1-7 (“THE COURT: Well, you’re saying [that an NCCPD officer] [is] familiar
with [White’s] voice. Other than [the officer] saying that, how is he familiar? . . . I’ll be candid with
you. If you think anybody in this courtroom heard anything that was said on this tape, I assure you
they didn’t because it was almost inaudible.”).
44
A113, at 114:1-4.
45
See A4.
46
See A165-71.
7
the ZTE cellphone found in White’s bedroom without properly authenticating the
messages.47 Second, whether the prosecutor made improper remarks during his rebuttal
summation by misstating the burden of proof and vouching for evidence.48 This Opinion
addresses each issue below.
A. The State Offered Sufficient Evidence to Authenticate the Text Messages
Downloaded from the ZTE Cellphone
The first issue on appeal is whether the Superior Court abused its discretion by
allowing the State to admit text messages downloaded from the ZTE cellphone without
properly authenticating that White wrote the messages.49 White’s main objection is that the
State did not offer a witness with first-hand knowledge to authenticate the text messages.50
Rather, the State relied on the chief investigating officer to authenticate and introduce the
messages.51 The chief investigating officer did not personally recover the cellphone from
White’s bedroom and relied on a different officer with technical expertise to extract the text
messages from the cellphone.52 White also objects that the State neither sought nor offered
the cellphone’s subscriber information.53
47
Opening Br. 14-20.
48
Id. at 21-29.
49
Id. at 14-20.
50
Id. at 16-19.
51
A62-63, at 73:20-79:9; A68-70, at 98:17-107:2; A73, at 117:12-119:22.
52
A31, at 81:20-84:2; A70, at 106:10-19.
53
Opening Br. 19; see, e.g., A69, at 102:21-103:6.
8
“This Court . . . reviews for abuse of discretion a trial court’s decision that evidence
has been properly authenticated.”54 “An abuse of discretion occurs when a court has . . .
exceeded the bounds of reason in view of the circumstances, [or] . . . so ignored recognized
rules of law or practice . . . to produce injustice.”55
Under Rule 901(a) of the Delaware Uniform Rules of Evidence, “the proponent” of
“an item of evidence . . . must produce evidence sufficient to support a finding that the item
is what the proponent claims it is.” To satisfy the authentication requirement, the State need
only “establish a rational basis from which the jury could conclude that the evidence is
connected with the defendant.”56 The link between the defendant and the evidence “need
not be conclusive,” and “[a]n inconclusive link diminishes the weight of the evidence but
does not render it inadmissible.”57 “[T]here are no hard-and-fast rules about how” the State
must meet the authentication requirement,58 and it is permissible to use the content and
context of a text message for authentication.59
This Court holds that the Superior Court did not abuse its discretion by concluding
that the State provided enough evidence to authenticate the text messages downloaded from
54
Cabrera v. State, 840 A.2d 1256, 1263 (Del. 2004) (citing Taylor v. State, 777 A.2d 759, 771
(Del. 2001)).
55
Parker v. State, 85 A.3d 682, 684 (Del. 2014) (alteration in original) (citing Culp v. State,
766 A.2d 486, 489 (Del. 2001)).
56
Cabrera, 840 A.2d at 1265 (citing Williams v. State, 568 A.2d 1073, 1989 WL 154710, at *1 (Del.
Dec. 4, 1989) (TABLE)).
57
Id. (citing Ward v. State, 575 A.2d 1156, 1160 (Del. 1990)).
58
Schaffer v. State, 184 A.3d 841, 2018 WL 1747793, at *5 (Del. Apr. 10, 2018) (TABLE).
59
See, e.g., Moss v. State, 166 A.3d 937, 2017 WL 2806269, at *3 (Del. June 28, 2017) (TABLE).
9
the ZTE cellphone. It is unclear why the State failed to present subscriber information, which
the State admitted during oral argument should have been easy to obtain.60 Regardless, the
authentication requirement imposes a “lenient burden” that is “easily met,”61 and the State
did not need to retrieve the cellphone’s subscriber information to clear the low bar for
authentication based on the facts of this case. The ZTE cellphone was recovered from
White’s bedroom,62 and White has not presented any evidence that the room was occupied
by another person. The cellphone contained numerous messages from White’s significant
other, Cassie.63 Among these messages was a message from Cassie informing the
cellphone’s user that Cassie “told the lady down the block ya name Jason White.”64 And the
cellphone’s user appears to have responded with “okay.”65
Finally, the chief investigating officer was present when the ZTE cellphone was
recovered from White’s bedroom,66 supervised the search,67 and was able to testify about
how a technician generated reports of the text messages downloaded from the cellphone.68
It was not an abuse of discretion to conclude that the totality of this circumstantial evidence
60
Oral Argument at 27:20-28:06 (June 9, 2021) (obtaining subscriber information “is a fairly
straightforward process . . . that is well-worn,” though it depends upon the responsiveness of the
cellphone provider), https://livestream.com/accounts/5969852/events/9697318/videos/222111730.
61
Guy v. State, 913 A.2d 558, 564 (Del. 2006) (quoting Whitfield v. State, 524 A.2d 13, 16
(Del. 1987)); Cabrera, 840 A.2d at 1264-65 (citing Whitfield, 524 A.2d at 16).
62
A62, at 73:20-76:9.
63
A63, at 77:8-12; A69, at 104:20-22.
64
A63,at 78:12-79:3 (emphasis added).
65
Id. at 78:9-13.
66
See, e.g., A23, at 51:14-21; A28, at 71:10-16; A68, at 98:7-99:1.
67
See, e.g., A31, at 83:17-84:12.
68
See, e.g., A62-63, at 73:20-77:15.
10
supplied a rational basis to infer that the ZTE cellphone belonged to White, and that White
authored the text messages downloaded from the cellphone. Thus, the Superior Court did
not abuse its discretion by allowing the State to admit the text messages downloaded from
the ZTE cellphone, and the concerns White has raised go to the weight of the evidence rather
than its admissibility.
B. The Prosecutor Did Not Make Improper Remarks Warranting Reversal
The second issue on appeal is whether the prosecutor made improper comments
during his rebuttal summation by misstating the burden of proof, denigrating the role of
defense counsel, and improperly vouching for evidence.69 We apply the plain error standard
of review because defense counsel did not object to the prosecutor’s remarks during trial.70
The first step in our analysis, however, is to review the record de novo to determine whether
the prosecutor made improper comments.71 “If we determine that no misconduct occurred,
our analysis ends.”72 If, however the prosecutor made improper comments we apply the
Wainwright standard, under which “the error complained of must be so clearly prejudicial to
69
Opening Br. 21-29.
70
See, e.g., Czech v. State, 945 A.2d 1088, 1097 (Del. 2008) (“Failure to raise a contemporaneous
objection to allegedly prejudicial testimony constitutes a waiver of that issue on appeal unless the
error is plain.” (citing Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986))); Baker v. State,
906 A.2d 139, 148 (Del. 2006) (“[O]ur standards for reviewing prosecutorial misconduct are slightly
different depending on whether the issue was fairly presented below. . . If defense counsel failed [to
object during trial] and the trial judge did not intervene sua sponte, we review only for plain error.”
(citing Kurzman v. State, 903 A.2d 702, 708-09 (Del. 2006))).
71
Baker, 906 A.2d at 150.
72
Id.11
substantial rights as to jeopardize the fairness and integrity of the trial process.”73 This review
“is limited to material defects which are apparent on the face of the record; which are basic,
serious, and fundamental in their character; and which clearly deprive an accused of a
substantial right, or which clearly show manifest injustice.”74
1. The prosecutor did not attempt to shift the burden of proof or
denigrate the role of defense counsel
Defense counsel devoted much of his closing remarks to pointing out purported
examples of reasonable doubt with the State’s case against White, such as whether the
narcotics found in the back-right bedroom belonged to White,75 whether the ZTE cellphone
belonged to White,76 and whether the evidence recovered from White’s bedroom was
consistent with drug dealing.77 The prosecutor responded to these arguments by reminding
the jury of various pieces of evidence that allegedly proved that White possessed and dealt
narcotics at the Cross Avenue Residence.78 In making this argument, the prosecutor told the
jury that defense counsel, “in doing his job for the defendant, trie[d] to raise as much
reasonable doubt as he can.”79 Elsewhere, the prosecutor transitioned between two topics
by stating, “One of the ways [defense counsel] attempted to raise issues with reasonable
73
Id. (quoting Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986)).
74
Id. (formatting altered) (quoting Wainwright, 504 A.2d at 1100).
75
See A120, at 142:3-143:13.
76
See A120-21, at 144:3-147:12.
77
See, e.g., A119, at 138:10-17.
78
See A123-25, at 153:9-162:14.
79
A124, at 157:7-8.
12
doubt [was] based on the defendant’s own statement . . . where [White] admitted [that] he
ha[d] crystal meth[amphetamine], [] [that] he sells heroin, and [that] he was doing it out of
[the Cross Avenue Residence].”80
White argues that these remarks “misstated the law as to the burden of proof and
confused the jury” by suggesting that a criminal defendant has the burden of proving a
reasonable doubt to avoid conviction.81 Further, White argues that these remarks improperly
“denigrate[d]” defense counsel’s role by suggesting to the jury that defense counsel was
trying to trick the jury into finding White not guilty.82
“In a criminal case, it is the State’s burden to prove to the jury’s satisfaction that there
is no reasonable doubt that the defendant committed the crime.” 83
“The defendant has a
constitutional right to not testify and is under no burden to introduce evidence of [their] lack
of guilt.”84 It is “entirely improper” for a prosecutor to “suggest” to the jury in closing
remarks “that the reasonable doubt standard . . . should be viewed with suspicion.”85
Similarly, it is improper for a prosecutor to “denigrate the role of defense counsel,” such as
80
Id. at 159:22-160:3.
81
Opening Br. 25.
82
See id. at 27-28.
83
See, e.g., Crosby v. State, 108 A.3d 291, 293 (Del. 2015) (citing In re Winship, 397 U.S. 358, 364
(1970)).
84
Id. (citing Griffin v. California, 380 U.S. 609 (1965)) (other citation omitted).
85
Hunter v. State, 815 A.2d 730, 736 (Del. 2002).
13
“by saying that defense counsel’s job [is] to trick the jury into letting [the defendant] go
free.”86
A prosecutor’s comment on defense counsel’s presentation, however, does not
provide automatic grounds for reversal. For example, in Derose v. State, the prosecutor
responded to defense counsel’s suggestion that a doctor’s diagnosis was influenced by
knowledge obtained before viewing the patient by stating that the diagnosis “wasn’t planted
[in the doctor’s] mind despite what the defense may have you believe.”87 The Court held that
this comment did not denigrate defense counsel because “[s]uggesting that the inference that
the defense would have the jury draw would be incorrect does not amount to an accusation
that the defense tried to ‘fool’ a jury. To rule otherwise, would be tantamount to pulling the
adversarial teeth from an effective prosecutor’s mouth in summation.”88 Similarly, in
Coverdale v. State, the Court held that the prosecutor’s characterization of defense counsel’s
argument as a “red herring” did not warrant reversal because it was a one-off remark,
supported by the record, that had “no effect on [the defendant’s] right to a fair trial.”89
86
Id. (emphasis added); see also Walker v. State, 790 A.2d 1214, 1220 (Del. 2002) (“Arguments by
the prosecutor to the jury . . . should focus on evidence introduced at trial rather than on his or her
opinion of defense counsel’s personality or trial strategy. It is impermissible for a prosecutor to
discredit defense counsel in front of the jury.” (first citing ABA STANDARDS FOR CRIM. JUST. § 4-
7.8(a) (AM. BAR ASS’N 1980); then citing Del. Laws.’ R. of Pro. Conduct 3.4; and then citing United
States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987), overruled on other grounds 775 Fed. App’x
423 (11th Cir. 2019))).
87
840 A.2d 615, 622-23 (Del. 2003) (emphasis added).
88
Id.89
844 A.2d 979, 981 (Del. 2004).
14
The Court understands White’s concern that the prosecutor’s inartful statements could
have been construed to misstate the burden of proof in a criminal case. The context makes
clear, however, that the prosecutor was simply describing defense counsel’s closing
argument and explaining how that argument was inconsistent with the evidence the State
offered against White. Defense counsel referred to examples of “reasonable doubt” several
times during his closing remarks. 90 The prosecutor made his objectionable comments in the
context of reminding the jury of the evidence that allegedly proved White’s guilt beyond a
reasonable doubt.91 In making that rebuttal argument, the prosecutor repeatedly told the jury
that the State had the burden of proving White’s guilt beyond a reasonable doubt.92 And the
Superior Court instructed the jury that it was the State’s burden to prove that White
committed each element of each crime with which he was charged beyond a reasonable
doubt.93 Finally, the record does not show that the prosecutor made any effort to denigrate
defense counsel or suggest that defense counsel was relying on frivolous arguments to
deceive the jury. Accordingly, this Court holds that the prosecutor did not make improper
90
See, e.g., A118, at 133:17-20 (“So what I’d like to do is go through some of the facts of this case
with respect to the charges and suggest to you where there may be some room for reasonable doubt
in this case.”).
91
See A123-25, at 153:9-162:14.
92
See, e.g., A123-24, at 156:23-157:2 (“Instead, we presented evidence that. . . proves the
defendant’s guilt beyond a reasonable doubt.”); A125, at 162:6-14 (“Ladies and gentleman, the State
submits that the evidence you saw is overwhelming . . . and the State has met its burden beyond a
reasonable doubt to show that the defendant” is guilty. (emphasis added)).
93
See, e.g., A127, at 172:1-21.
15
comments by attempting to shift the burden of proof to the defendant or by casting aspersions
on the role of defense counsel.
2. The prosecutor did not improperly vouch for the strength of the
State’s case
During closing remarks, defense counsel argued that the State did not prove beyond
a reasonable doubt that all of the narcotics recovered from the Cross Avenue Residence
belonged to White.94 The prosecutor responded to this argument during his rebuttal
summation by reminding the jury of various pieces of evidence that linked White to the
narcotics, including a wiretap recording in which White purportedly admitted that he
attempted to dump narcotics in other parts of the residence to avoid criminal liability. When
transitioning from quoting this recording to another piece of evidence, the prosecutor told
the jury “I think that there pretty much explains” how the narcotics ended up in the back-
right bedroom:
There are a couple of issues and a couple of points [defense
counsel] made [that] the State didn’t necessarily agree with.
First of all, . . . [one of the detectives] testified [that] he
identified the defendant running into the bathroom, the opening
of the bathroom door, and when they ID’d him, Jason, stop,
come back, he didn’t comply. He ran back out of there.
They will connect that with a cell phone conversation
that was intercepted between [a third-party] and Jason White.
[“]Yeah, they trashed out the shit though. They got rid of most
of the shit. I mean, I was running around getting rid of the shit
when they hit the [residence]. I tried going to the bathroom and
94
See, e.g., A118-20, at 136:18-142:22.
16
shit, but they blew the . . . windows out and as soon as I walked
in . . . I turned around and . . . just started dumping the shit.
Went everywhere.[”]
I think that there pretty much explains where the stuff
went, because [the back-right] bedroom, there’s stuff
everywhere. There’s literally bags in multiple different
locations with a bag of Crystal meth strewn all over the floor.95
White argues that the prosecutor’s use of the first-person pronoun “I” was improper
because it offered the prosecutor’s personal view of the evidence.96 White adds that “[t]he
prosecutor’s remark was especially harmful because he improperly [commented] on a piece
of evidence, the wiretap calls, which were of poor audio quality.”97
The Court has recognized that it is inappropriate for prosecutors to offer their personal
opinions of the evidence or the defendant’s guilt during a closing argument.98 “This
condemnation flows from the possibility that the authority and respect the office of the
prosecutor commands may ‘induce the jury to trust the Government’s judgment rather than
[the jury’s] own view of the evidence.’”99 To combat this concern, prosecutors “ha[ve] a
duty to take care that the argument the State presents to the jury stands or falls on its own
95
A123-24, at 153:18-157:6. It is unclear whether the prosecutor’s quotation of the recording was
verbatim. White does not argue that the prosecutor made any errors transcribing the recording, see
Opening Br. 23-25, though he characterizes the prosecutor’s comments as offering a personal
interpretation of what was said rather than a quotation, Reply Br. 6-8.
96
Opening Br. 22-24.
97
Id. at 24.
98
See, e.g., Trala v. State, 244 A.3d 989, 999-1000 (Del. 2020); Brokenbrough v. State,
522 A.2d 851, 858-59 (Del. 1987).
99
Trala, 244 A.3d at 1000 (quoting United States v. Young, 470 U.S. 1, 18-19 (1985))
(citing Rasin v. State, 187 A.3d 1209, 2018 WL 2355941, at *2 (Del. May 23, 2018) (TABLE)).
17
merit, rather than relying, even unintentionally, on the respect and deference to which the
public gives the prosecutor’s office.”100
“In a closing argument, the use of the word ‘I’ only serves to emphasize for the jury
that the prosecutor . . . personally believes the point that is being submitted to the jury for
consideration. . . . This type of argument is contrary to the ABA standards and the Delaware
Rules of Professional Responsibility.”101 Nonetheless, while a prosecutor’s “use of the word
‘I’ is often problematic,”102 “there is no per se rule forbidding it.”103 Instead, the Court must
consider “the context in which the statements were made” to determine whether the
prosecutor improperly vouched for the State’s case against the defendant and, if so, whether
such comments require reversal.104 “The Court will not find a plain error” where the
prosecutor “suggest[ed] a logical inference from the evidence presented at trial” and did not
imply “awareness of other information outside the record.”105
This issue presents a closer call. It was inappropriate for the prosecutor to use the
first-person pronoun “I” when describing the evidence. Such statements are inherently
100
Id.101
Brokenbrough, 522 A.2d at 859 ; see, e.g., Del. Laws.’ Rules of Pro. Conduct 3.4(e) (prohibiting
lawyers from stating “a personal opinion as to the justness of a cause, the credibility of a witness,
. . . or the guilt or innocence of an accused . . . .”).
102
Trala, 244 A.3d at 999 (first citing Derose v. State, 840 A.2d 615, 621 (Del. 2003); and then
citing Moreta v. State, 210 A.3d 142 (Del. 2019)).
103
Id. (citing Swan v. State, 820 A.2d 342, 356 n.35 (Del. 2003)).
104
Id.105
Id. (citation omitted) (citing Booze v. State, 919 A.2d 561, 2007 WL 445969, at *4 (Del. Feb. 13,
2007) (TABLE)).
18
suspect because they can suggest that the State is throwing its power and special access to
information behind its view of the evidence.106 Nonetheless, the context shows that the
prosecutor’s statement was an inartful attempt to transition between discussing two pieces of
evidence, not an effort to vouch for the content of the wiretap recording. And on appeal,
White does not challenge the Superior Court’s decision to admit the wiretap recording or
object to the prosecutor’s transcription of what was said on the recording.107 Accordingly,
the Court holds that the prosecutor’s use of the first-person pronoun “I” was not an attempt
to express a personal opinion about a piece of evidence that “jeopardized the fairness and
integrity” of White’s trial.108
III. CONCLUSION
For the reasons provided above, the judgment of the Superior Court is affirmed.
106
See, e.g., id. at 999-1000.
107
See Opening Br. 21-29.
108
Baker, 906 A.2d at 150 (quoting Wainwright, 504 A.2d at 1100).
19