Spence v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHRISTOPHER SPENCE, §
§ No. 298, 2014
Defendant Below-Appellant, §
§ Court Below:
§
v. § Superior Court of the
§ State of Delaware, in and for
§ New Castle County
STATE OF DELAWARE, §
§ Cr. I.D. No. 1208011625A
Plaintiff Below-Appellee. §

Submitted: September 24, 2015
Decided: November 13, 2015

Before VALIHURA, VAUGHN, and SEITZ, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Eugene J. Maurer, Jr., Esquire, Wilmington, Delaware for Appellant.

Andrew J. Vella, Esquire, Department of Justice, Wilmington, Delaware for Appellee.

VALIHURA, Justice:
 Defendant-Below, Appellant, Christopher Spence (“Spence”), appeals from a

Superior Court Order denying his Motion for a Mistrial. We AFFIRM the ultimate

holding of the trial court based largely upon the well-reasoned Order denying Spence’s

Motion, but with three exceptions to the trial court’s underlying analysis. The exceptions

relate, in part, to the State’s use of a PowerPoint presentation during its closing argument.

I. FACTUAL AND PROCEDURAL HISTORY1

This case arises from a shooting that occurred during an event at a party venue

located at 1232 King Street in Wilmington, Delaware. During the shooting, Spence shot

and killed Kirt Williams (“Williams”), and shot and wounded Kelmar Allen (“Allen”).

Because Spence admitted to shooting Williams and Allen, the case centered on: (1)

whether the State could prove each element of the indicted charges beyond a reasonable

doubt; (2) whether Spence was guilty of lesser included offenses; and (3) whether Spence

had a viable justification defense, either self-defense or defense of others.

The trial commenced December 3, 2013. Over the course of the trial, the State

called twenty-one witnesses to testify in support of its case. Spence called three

witnesses, including himself, to testify in support of his case.

Spence testified at trial that, during the party, certain threats were made and a fight

occurred between members of a gang known as the “Sure Shots” and friends of his.

Spence’s defense focused on the gang’s reputation for violence. At the party and while

they were waiting for an elevator, Spence approached two individuals—Allen and

1
The facts are taken from the May 15, 2014 Order of the Superior Court denying Spence’s
Motion for a Mistrial and from the record below.
1
Williams—whom Spence associated with the Sure Shots. Spence had a pump-action

shotgun in his hands, which he had been handed by a man known as “Trini” moments

before. Spence testified that, after he approached the victims, he perceived Williams,

also known as “Little Man” and “Short Man,” reaching for his waist. At that point,

Spence fired multiple shots at Williams and Allen because he feared for his safety and for

that of his friends.

On cross-examination with respect to his justification defenses, Spence testified

that he did not call the police prior to the shooting because they would have broken up

the party. Spence also stated that he had the opportunity to leave safely before he

approached the victims with the shotgun, and continued to have that opportunity after he

began to fire the weapon. He testified as follows:

Q. But you had opportunities to get away before any of this?

A. Yeah.

Q. Before you took the shotgun you had an opportunity to leave; right?

A. Right.

Q. After you fired the first shot, you could have left?

A. Yeah. I could have.

Q. But you didn’t?

A. But I want to make sure that everybody was safe.

Q. You want to make sure they were dead?

A. Yes.

2
 Although Spence testified that he fired three shots at the victims, other witnesses,

forensic evidence, and expert testimony suggested that four shots were fired. Williams’s

body was found by Wilmington police in the elevator of the party venue. Spence did not

see either victim with a firearm, as he testified at trial:

Q. You never saw Kirk Williams or Kelmar Allen with a gun?

A. No.

Q. Never heard they had a gun? You just --

A. No.

Q. -- assumed it?

A. Yes.

In fact, no weapons—including the pump-action shotgun—were recovered at the scene,

nor were any discovered on Williams’s body. No witness testified that they saw a

weapon on Allen or Williams during the party. Allen survived the shooting, despite

receiving gunshot wounds.

Moments before closing argument, the State provided defense counsel with a

black and white copy of the PowerPoint presentation it intended to use during

summation. The version of the PowerPoint presentation displayed to the jury was in

color (the “PowerPoint”). During the State’s closing argument, the defense objected to

two statements in which the State suggested of Spence: “he wants you to believe his

story.” After the prosecution’s closing argument, the defense objected to a slide in the

PowerPoint on which the word “MURDER” appeared in red lettering, and which was

juxtaposed with an image of Williams’s deceased and bloodied body. The defense also

3
objected to statements which Spence alleges undermined the dangerousness of the Sure

Shots while the State was simultaneously prosecuting members of the gang for violent

crimes.

On December 18, 2013, upon the conclusion of closing arguments, the trial court

instructed the jury on the law governing the case. The jury instructions were the product

of a lengthy prayer conference. The trial court included instructions regarding all the

indicted offenses, lesser included offenses, and the two justification defenses. The jury

instructions also contained instructions regarding “Credibility of Witnesses” and

“Attorney’s Belief or Opinion.”2 The parties had no exceptions to the instructions. In

addition, Spence did not raise any objections to the instructions in his later-filed Motion

for a Mistrial (the “Motion”) or Memorandum in Support of the Defendant’s Motion for

Mistrial (the “Memorandum”). The trial court provided each juror with a copy of the jury

instructions to use during deliberations. While the trial court did make the State’s closing

argument PowerPoint a court exhibit, it did not allow the PowerPoint to go back with the

jury during its deliberations.

At the end of closing arguments, Spence’s counsel moved for a mistrial based on

the alleged instances of prosecutorial misconduct. The trial court reserved ruling on the

motion until after trial.

2
In the “Attorney’s Belief or Opinion” instruction, the trial court instructed the jury that “. . . it is
not proper for an attorney to state a personal opinion as to the truth or falsity of any testimony or
evidence or on the guilt or innocence of an accused. What an attorney personally thinks or
believes about the testimony or evidence in a case is simply not relevant, and you are instructed
to disregard any personal opinion or belief concerning testimony or evidence which an attorney
offers during opening statements or closing arguments, or at any other time during the course of
the trial.” B292 (Tr. 120:8-18).
4
 On December 19, 2013, the jury deliberated for less than six hours, ultimately

returning a verdict of guilty on the indicted offenses of Murder in the First Degree,

Attempted Murder in the First Degree, Reckless Endangering in the First Degree, and

three counts of Possession of a Firearm During the Commission of a Felony.

On December 27, 2013, Spence, through counsel, filed the Motion on the basis of

prosecutorial misconduct. He supplemented the Motion with the Memorandum, on

January 27, 2014. Spence argued that a mistrial was appropriate due to six alleged

instances of prosecutorial misconduct during closing arguments at his trial. He had

objected to three such purported instances during the trial. In the Motion and the

Memorandum, Spence raised, for the first time, objections to the following: (1) two

PowerPoint slides which referred to the victims as “helpless;” (2) PowerPoint slides

containing alleged misstatements of the justification defenses; and (3) a PowerPoint slide

containing the statement that “[t]he defendant is guilty of all the charges against him[.]”

The trial court denied the Motion.

II. THE PARTIES’ CONTENTIONS ON APPEAL

This appeal centers on the same six instances of alleged prosecutorial misconduct

that were raised in the proceedings below. On appeal, Spence contends that the trial

court erred when it denied the Motion. He argues that the State made improper

statements during its closing argument, including statements contained in the State’s

PowerPoint, that unfairly prejudiced the jury’s deliberative process. The State counters

by asserting that the prosecutor’s closing remarks and visual aids were within the bounds

of permissible commentary on the evidence and, therefore, did not constitute misconduct.

5
Further, the State contends that, even if the actions did constitute prosecutorial

misconduct, a mistrial was unwarranted.

III. STANDARD OF REVIEW

“[O]ur standards for reviewing prosecutorial misconduct are slightly different

depending on whether the issue was fairly presented below. If defense counsel raised a

timely and pertinent objection to prosecutorial misconduct at trial, or if the trial judge

intervened and considered the issue sua sponte, we essentially review for ‘harmless

error.’ If defense counsel failed to do so and the trial judge did not intervene sua sponte,

we review only for plain error.”3 The trial court analyzed the objections in this fashion,

as do we.4

IV. ANALYSIS

A. Harmless Error Review of the Timely Objections

First, we consider the three objections that were made in a timely fashion. Under

harmless error review, we perform a de novo review of the record and determine whether

the prosecutor’s actions were improper.5 If no misconduct occurred, the analysis ends.

If misconduct has occurred, then we must determine “whether the misconduct

prejudicially affected the defendant.”6 To determine whether the misconduct

prejudicially affected the defendant, we apply the three factors indentified in Hughes v.

3
Baker v. State, 906 A.2d 139, 148 (Del. 2006) (citation omitted).
4
The trial court reviewed, under the harmless error standard, one objection made during the
State’s closing argument and two objections made immediately after. It reviewed the three
objections made after trial under the plain error standard.
5
Kirkley v. State, 41 A.3d 372, 376 (Del. 2012) (citing Baker, 906 A.2d at 148).
6
Id. (citing Baker, 906 A.2d at 148).
6
State,7 which are: (1) the closeness of the case, (2) the centrality of the issue affected by

the error, and (3) the steps taken to mitigate the effects of the error (the “Hughes test”).8

“The factors in the Hughes test are not conjunctive and do not have the same impact in

every case; for example, one factor may outweigh the other two.”9

Even if the conduct is not found to have prejudiced the defendant under Hughes,

Delaware courts must apply the test articulated in Hunter v. State,10 which considers

“whether the prosecutor’s statements are repetitive errors that require reversal because

they cast doubt on the integrity of the judicial process” (the “Hunter test”).11

Thus, we first examine whether there has been prosecutorial misconduct through a

harmless error review. Spence’s three timely objections include the following: (1)

during the State’s closing argument, Spence objected to the statement, “[t]hat’s what

Christopher Spence said in front of you, because he wants you to believe his story[;]” 12

(2) after the State’s closing argument, Spence objected to a PowerPoint slide that was

displayed during the closing, which showed the word “MURDER” in large, red lettering

and juxtaposed with an image of Williams’s body (“Slide 067”); and, (3) after the State’s

closing argument, Spence objected to certain statements that, he argued, undermined the

dangerousness of the Sure Shots at a time when the State was simultaneously prosecuting

members of the gang for multiple acts of violence in other criminal proceedings.

7
437 A.2d 559 (Del. 1981).
8
Id. at 571 (quoting Dyson v. United States, 418 A.2d 127, 132 (D.C. App. 1980)).
9
Baker, 906 A.2d at 149.
10
815 A.2d 730 (Del. 2002).
11
Id. at 733.
12
A126 (Tr. 27:1-3).
7
 As to the first objection, the State’s comment referred specifically to prior

testimony. We have held that “[p]rosecutors may refer to statements or testimony as a

‘lie’ . . . only if the ‘prosecutor relates his argument to specific evidence which tends to

show that the testimony or statement is a lie.’”13 The record supports the trial court’s

conclusion that the prosecutor was referring to prior testimony regarding a Jamaican sign

of music appreciation known as “bigging up a song.” Multiple witnesses testified that, in

Jamaican reggae culture, pointing two fingers in the air and saying “blau, blau, blau” is a

sign of appreciation for a song. However, during testimony, Spence stated that the

gesture was used as a threat. The prosecutor’s statement, which Spence objected to,

referred specifically to that testimony, and was not a general or sweeping comment that

Spence was lying. Therefore, we agree with the trial court that the statement failed to rise

to the level of prosecutorial misconduct.

The second objection concerns Slide 067. The slide displayed a picture of

Williams’s body, splayed and bloodied, and read “Christopher Spence’s actions led to . . .

Terror . . . Fear . . . And to the ultimate crime . . . MURDER[.]”14 The word “MURDER”

appeared in large, red lettering. The picture used was an exhibit, which had been

properly admitted into evidence during the trial. The slide was the last of the presentation

and contained the photograph of the victim, displayed for the third time. On appeal,

Spence contends that “[t]he State’s additional commentary and improper visual aids

unfairly ignited the ‘flames of passion’ immediately prior to jury deliberations.”

13
Warren v. State, 774 A.2d 246, 256 (Del. 2001) (quoting Hughes, 437 A.2d at 571)).
14
A210.
8
 As to Slide 067, the trial court stated that, “[w]hether this conduct amounted to

prosecutorial misconduct at all is questionable.”15 In fact, it appeared that the trial court

was prepared to provide, if one had been requested, a curative instruction. 16 But rather

than make an explicit finding, the trial court determined that, “regardless of whether this

conduct does in fact amount to misconduct, in order to determine whether reversal is

warranted the remaining two steps of harmless error must be applied.” 17 It then found

that any error was harmless. While a specific finding as to prosecutorial misconduct may

not have been necessary in view of the remainder of the trial court’s analysis, we address

this point specifically in order to provide guidance to the Bar, as the use of PowerPoint

presentations and their acceptable boundaries in criminal prosecutions present issues of

first impression in Delaware. Because this is a novel issue in this State, we have

examined recent decisions from our sister courts across the country.

The Supreme Court of Washington has addressed similar issues in two recent

opinions. First, in In re Glasmann,18 the Supreme Court of Washington determined that

the word “GUILTY,” displayed in red font across the booking photograph of the

defendant, was an impermissible appeal to the jury’s emotions. It granted a new trial

because the prosecution’s slideshow presentation contained multiple assertions of the

defendant’s guilt, statements that the jurors could only acquit the defendant if they

15
State v. Spence, 2014 WL 2089506, at *5 (Del. Super. May 15, 2014).
16
A128 (Tr. 35:7-18).
17
Spence, 2014 WL 2089506, at *5.
18
286 P.3d 673 (Wash. 2012).
9
believed the defendant’s trial testimony, and improperly modified exhibits.19 In addition,

the court found the misconduct to be so pervasive that it could not have been cured by an

instruction.

Second, and more recently, in State v. Walker,20 the Supreme Court of Washington

reversed a defendant’s conviction and remanded for a new trial based on prosecutorial

misconduct where the prosecution “committed egregious misconduct in its closing

PowerPoint presentation[.]”21 There, the court found that the prosecution’s slideshow

was improper because

it included multiple exhibits that were altered with inflammatory captions
and superimposed text; it suggested to the jury that [the defendant] should

19
Spence also relies on State v. Rivera, a Superior Court of New Jersey case we find to be
readily distinguishable. 99 A.3d 847 (N.J. App. Div. 2014). There, the court reversed the
defendant’s convictions on the basis of the “cumulative impact of the prosecutor’s misconduct.”
Id. at 865. The prosecutor, in Rivera, “declared [the defendant] guilty” twice. Id. at 854-55. In
so declaring during its opening statement, the prosecution showed a PowerPoint, which
“contain[ed] a photograph showing [the] defendant’s face and neck, which [was] displayed with
a bright red border. It also include[d] text, printed in the same color and density, ‘Defendant
GUILTY OF: ATTEMPTED MURDER.’ The words ‘Defendant’ and ‘GUILTY OF:’
appear[ed] on separate lines to the right of [the] defendant’s photograph, and ‘ATTEMPTED
MURDER’ appear[ed] below the photograph in much larger typeface.” Id. at 854 (emphasis in
original). In reversing the defendant’s convictions, the Rivera court recognized that New
Jersey’s Supreme Court “has consistently condemned conduct that invades the exclusive
province of the jury to resolve factual disputes, assess credibility and decide whether the State’s
evidence establishes guilt.” Id. at 856 (citations omitted). Further, the court suggested that “[i]t
is difficult to conclude that a prosecutor’s declaration of the defendant’s guilt before the first
witness is sworn would not have invaded the province of the jurors.” Id. Finally, the Rivera
prosecutor used the PowerPoint presentation in summations and “included statements about the
law of self-defense that were so oversimplified as to be misleading.” Id. at 864. Four of the
prosecution’s final five slides employed oversimplified summaries of the law of self-defense. Id.
at 864-65. The court concluded that, despite the judge’s instructions to the jury, “the sheer
quantity and variety of highly prejudicial remarks, visual displays and a courtroom antic, give us
reason to have serious doubt about the jurors’ capacity to follow those instructions.” Id. at 865
(citations omitted). Because the prosecutor’s conduct here does not approach the degree of
repetition in Rivera, we find the instant matter to be distinguishable.
20
341 P.3d 976 (Wash. 2015), cert. denied, 135 S. Ct. 2844 (2015).
21
Id. at 985.
10
 be convicted because he is a callous and greedy person who spent the
robbery proceeds on video games and lobster; it plainly juxtaposed
photographs of the victim with photographs of [the defendant] and his
family, some altered with racially inflammatory text; and it repeatedly and
emphatically expressed a personal opinion on [the defendant’s] guilt.22

The PowerPoint was approximately 250 slides in length, with over 100 such slides

containing the heading “DEFENDANT WALKER GUILTY OF PREMEDITATED

MURDER.” The court also noted that two slides had the heading “DEFENDANT

WALKER GUILTY OF ASSAULT IN THE FIRST DEGREE,” and three had the

heading “DEFENDANT WALKER GUILTY OF SOLICITATION TO COMMIT

ROBBERY.” Additionally, the PowerPoint included the words “GUILTY BEYOND A

REASONABLE DOUBT” over the defendant’s booking photo. The lettering was bright

red.

The Supreme Court of Washington observed that “[c]losing argument provides an

opportunity to draw the jury’s attention to the evidence presented, but it does not give a

prosecutor the right to present altered versions of admitted evidence to support the State’s

theory of the case, to present derogatory depictions of the defendant, or to express

personal opinions on the defendant’s guilt.”23 It found the State’s misconduct to be so

flagrant, pervasive, and prejudicial that it could not have been overcome with a timely

objection and an instruction to the jury to disregard the improper slides.24

22
Id. at 985.
23
Id. (citation omitted).
24
Id. The court noted that “[t]he voluminous number of slides depicting statements of the
prosecutor’s belief as to [the] defendant’s guilt, shown to the jury just before it was excused for
deliberations, is presumptively prejudicial and may in fact be difficult to overcome, even with an
instruction.” Id. at 986.
11
 In Lopez-Bonilla v. State,25 the Supreme Court of Nevada reviewed a trial court’s

judgment of conviction and considered a defendant’s argument that “the State committed

prosecutorial misconduct during rebuttal closing argument by briefly displaying

photographs of him and the co[-]defendant with the word ‘guilty’ across the front.”26

Notably, the trial court disallowed a PowerPoint presentation offered by the defendant

“because it found some of the presentation to be extremely inflammatory, prejudicial,

inappropriate, and biased.”27 Nonetheless, the trial court allowed the prosecution to

display the marked photographs. Lopez-Bonilla’s co-defendant objected to the

photographs, “conceding that their limited use was proper but objecting to any prolonged

display, and the [trial] court sustained the objection” when the photographs were shown

for a second time.28 The Supreme Court of Nevada upheld Lopez-Bonilla’s conviction,

providing: “even assuming error, we conclude that [the defendant] fail[ed] to establish

that [the photographs] affected his substantial rights.”29

A different result was obtained in the Supreme Court of Nevada in Watters v.

State,30 where the prosecution, during its opening statement, utilized a PowerPoint slide

showing the defendant’s booking photograph with the word “GUILTY” displayed

“across his battered face.”31 While the offending slide was displayed to the jury, the

prosecutor stated: “So after hearing the evidence in the case, we’re going to ask you to

25
2015 WL 1797303 (Nev. Apr. 15, 2015).
26
Id. at *2.
27
Id. at *1.
28
Id. at *2.
29
Id. (citations omitted).
30
313 P.3d 243 (Nev. 2013).
31
Id. at 245.
12
find the [d]efendant guilty on possession of stolen vehicle, guilty on grand larceny auto,

and guilty on failure to stop on a police officer’s signal.”32 In reversing and remanding

for a new trial, the Supreme Court of Nevada rejected the State’s harmless error

argument, which was based upon the fact that “the PowerPoint was not admitted into

evidence; the jury was instructed on the presumption of innocence at the beginning and

end of trial; the slides were displayed only briefly; and the evidence of [the defendant’s]

guilt was overwhelming.”33 In rejecting the State’s argument, the Supreme Court of

Nevada held that, “in the presumption-of-innocence context, ‘[t]he actual impact of a

particular practice on the judgment of jurors cannot always be fully determined,’ and the

[United States] Supreme Court ‘has left no doubt that the probability of deleterious

effects on fundamental rights calls for close judicial scrutiny.’”34

In State v. Kalmio,35 the Supreme Court of North Dakota declined to reverse a

defendant’s conviction on the grounds that the State engaged in prosecutorial misconduct

by displaying slides with “images of a gun and red circles” that were not in evidence and

which the defendant “claimed resembled blood.”36 The trial court sustained the

defendant’s objections to the slides and instructed “the jury to disregard the images.”37

Further, the trial judge directed the jury “that any comments or statements by counsel

concerning the evidence which are not supported by the evidence should be disregarded

32
Id. at 246 (emphasis in original).
33
Id. at 248.
34
Id. at 248-49 (quoting Estelle v. Williams, 425 U.S. 501, 504 (1976)).
35
846 N.W.2d 752 (N.D. 2014).
36
Id. at 766.
37
Id.
13
and the jury member[s] should rely on their own recollection or observation.”38 In

affirming the trial court’s judgment, the Supreme Court of North Dakota held that “the

prosecutor’s attempt to use two images during closing argument was not sufficiently

prejudicial to violate [the defendant’s] due process rights because the [trial] court directed

the images to be removed and the jury to disregard the images.”39

These cases demonstrate that the question of whether slideshow presentations rise

to the level of prosecutorial misconduct is a highly-contextualized and fact-specific

analysis.40 As a general matter, PowerPoint presentations are not inherently good or bad.

Rather, their content and application determines their propriety. This Court does not seek

to discourage the use of technology in closing arguments to summarize and highlight

relevant evidence for the benefit of the jury. But slides may not be used to put forward

impermissible evidence or make improper arguments before the jury. A PowerPoint may

not be used to make an argument visually that could not be made orally. While

prosecutors are given latitude in making closing arguments, his or her comments must be

limited to properly admitted evidence and any reasonable inferences or conclusions that

can be drawn therefrom. The prosecutor may neither misstate the law nor express his or

38
Id. at 767 (citation omitted).
39
Id.
40
It would be, no doubt, perilous for this Court to attempt to derive specific rules regarding
visual aids. For example, use of the color red is not always prejudicial. Use of capitalized letters
does not necessarily constitute “shouting.” The word “guilty,” when presented as a written word
in a visual aid, does not always constitute an improper expression of a prosecutor’s opinion of
guilt.
14
her personal opinion on the merits of the case or the credibility of witnesses.41 A

defendant should timely object to improper comments or slideshow presentations, so that

the trial court is offered an opportunity to address any objections.

In the instant matter, we conclude that the prosecutor’s use of Slide 067 was

improper and that the display of Williams’s bloody body with the words “Terror,”

“Fear,” and “MURDER” in red lettering served no purpose other than to attempt to

inflame the jury. Closing arguments are an opportunity for counsel to argue reasonable

inferences drawn from the evidence. While the prosecutor is entitled to focus the jury’s

attention on admitted evidence, a slide that achieves no end but to inflame the passions of

the jury is improper. This conclusion flows from the recognition that prosecutors

represent the people of the State and must act impartially in the pursuit of justice.

Fanning the flames of a jury’s collective emotions through the use of improper

PowerPoint slides to obtain a conviction does not serve the interests of justice.42

41
See generally Kyle C. Reeves, PowerPoint in Court: The Devil’s Own Device, or a Potent
Prosecution Tool?, 48 PROSECUTOR 26, 28-29 (2014) (“An informal survey of cases reported in
all 50 states found that 37 states . . . have appellate decisions in criminal cases that mention the
use of PowerPoint by the prosecutor at some phase of trial—almost always in conjunction with a
defendant’s claim of prosecutorial misconduct. . . . Of the 37 states where the reported cases
mention PowerPoint, seven states . . . have reported one or more criminal cases being reversed
because of prosecutorial misconduct involving the use of PowerPoint.”) (citations omitted).
42
See Bennett v. State, 164 A.2d 442, 446 (Del. 1960) (“A prosecuting attorney represents all the
people, including the defendant who [is] being tried. It is his [or her] duty to see that the State’s
case is presented with earnestness and vigor, but it is equally his [or her] duty to see that justice
be done by giving [the] defendant a fair and impartial trial.”); Mitchell v. State, 2014 WL
1202953, at *6 (Del. Mar. 21, 2014) (same); Miller v. State, 893 A.2d 937, 951 n.51 (Del. 2006)
(same, and also noting that “prosecutors must resist the urge to win at all costs” (citation
omitted) (internal quotation omitted)); Taylor v. State, 827 A.2d 24, 27 (Del. 2003) (quoting
Bennett, 164 A.2d at 446) (referencing the prosecutor’s “dual obligation to present the State’s
case ‘with earnestness and vigor’ while discharging ‘his duty to see that justice be done by
giving defendant a fair and impartial trial’”); Price v. State, 858 A.2d 930, 941 (Del. 2004) (“A
15
 The third objection raised at trial was with respect to statements which Spence

argued undermined the dangerousness of the Sure Shots gang. At times during

summation, the State asserted that Sure Shots was a violent gang, and, in its PowerPoint,

stated that Spence could only recall two incidents involving the Sure Shots besides the

so-called Palmer Murder. The State argued that, even though the gang was violent,

Spence had knowledge of only a few violent incidents involving the Sure Shots, and none

of the incidents involved the victims in the instant matter, and, thus, it was unlikely that

Spence subjectively believed his life was in danger when he shot Williams and Allen.

Based on the record, we agree with the trial court that the State maintained that the

Sure Shots was a dangerous gang. The statements, both in the PowerPoint presentation

and during the State’s closing, describe the Sure Shots as such. Because Spence’s

subjective belief as to the danger he found at the time of the shooting was the focus of his

defense, we agree with the trial court that these statements did not amount to

prosecutorial misconduct.

B. Hughes Test: Timely Objections

The second step in the harmless error review is to apply the three-pronged Hughes

test, where we must consider (1) the closeness of the case, (2) the centrality of the issue

affected by the error, and (3) the steps taken to mitigate the effects of the error. 43

prosecutor is simultaneously both an officer of this Court and an officer of this State; the direct
report of a duly elected Attorney General.”); Hunter, 815 A.2d at 735 (explaining that
prosecutors “must ‘seek justice, not merely convictions’”) (citation omitted).
43
Hughes, 437 A.2d at 571 (quoting Dyson, 418 A.2d at 132).
16
Although Slide 067 was improper, we agree that the slide does not require reversal of

Spence’s conviction under the Hughes test.

As to the closeness of the case, this case was not close. Spence admitted to the

intentional killing of Williams and the attempted killing of Allen. Although Spence

relied on the justification defenses of self-defense and defense of others, he could not

satisfy the requirements of the defenses, even under his own version of the events. Under

11 Del. C. § 464(c), the use of deadly force is justifiable if the defendant believes that

such force is necessary to protect himself from death or serious physical injury.

However, the use of deadly force is not justifiable if “[t]he defendant knows that the

necessity of using deadly force can be avoided with complete safety by retreating . . . .”44

Likewise, as to the defense of others, “[w]hen the person whom the defendant seeks to

protect would have been obliged under [11 Del. C.] § 464 . . . to retreat, . . . the defendant

is obliged to try to cause the person to do so before using force in the person’s protection

if the actor knows that complete safety can be secured in that way.”45 Therefore, the

person claiming self-defense must retreat if he—or the person he seeks to protect—can

do so safely.

At trial, Spence testified that he had the opportunity to leave safely before he

approached the victims with the shotgun, as well as after he began to fire. While at oral

argument, Spence’s counsel argued that, at the precise time of the shooting by the

elevator, Spence did not have an opportunity to retreat. According to Spence’s own

44
11 Del. C. § 464(e)(2).
45
11 Del. C. § 465(c).
17
recollection of the events at trial, however, Spence had multiple opportunities to retreat.

Further, Spence continued to fire after the first shot, when he had another opportunity to

retreat. In his testimony, he described how he continued to pump the shotgun and fire

multiple times after the first shot:

Q. And that gun you were using was a pump action shotgun?

A. Yes.

Q. That means after you fired the first time, you had to pull the gun back and
jam it forward to get another shell into that chamber?

A. Yes.

Q. Didn’t automatically feed?

A. No.

Q. So when you fired, you had to move the action, move it up, fire again?

A. Yes.

Q. Move the action, move it up?

A. Yes.

Q. Fire again?

A. Yes.

In addition, Spence testified that he left the party at one point and chose to return

despite the presence of the Sure Shots. During the trial, Spence also stated that, although

he could have called the police, he chose not to because the police would “break the party

up.”

18
 Self-defense is also unavailable if the defendant, “with the purpose of causing

death or serious physical injury, provoked the use of force against the defendant in the

same encounter . . . .”46 Here, it was Spence, with shotgun in hand, who approached the

two victims. According to Spence, it was only after his approach that he observed, in his

view, Williams reaching for his waist. Therefore, the justification defense would also not

be available based on Spence’s provocation. As Spence’s own testimony negated the

applicability of self-defense and there were no other defenses offered, the case before the

jury was not close on the issue of justification.

Moreover, the State produced additional evidence during the trial, including

testimony from a number of witnesses present during the party, eyewitnesses to the

shooting, and the testimony of Allen. The State also provided forensic testimony,

physical evidence, and Spence’s prior statements to the police. Ultimately, the jury took

less than six hours to convict Spence on all the indicted charges. Therefore, this factor,

“the closeness of the case,” weighs heavily in favor of harmless error.

The second factor is “the centrality of the issue affected by the error.” The issue at

trial was whether Spence had a meritorious justification defense. Slide 067 depicts the

victim of the homicide but does not speak to the issue of justification.

With respect to the third factor, “the steps taken to mitigate the effects of the

error,” the jury instructions addressed the personal opinions or beliefs of the attorneys.

Further, the defense rejected the trial court’s offer of a curative instruction at the time of

its objection to Slide 067.

46
11 Del. C. § 464(e)(1).
19
 Considering all three factors, we conclude that the alleged prosecutorial

misconduct, which was objected to in a timely manner, did not amount to more than

harmless error under the Hughes test. The first factor, the closeness of the case, is

particularly compelling. Accordingly, a mistrial was not required under Hughes.

C. Plain Error Review of Untimely Objections

“Where defense counsel fails to raise a timely and pertinent objection to alleged

prosecutorial misconduct at trial and the trial judge does not intervene sua sponte, we

review only for plain error.”47 In plain error review, we first examine the record de novo

to determine whether prosecutorial misconduct occurred, a process reflective of the

procedure followed in connection with harmless error review. If we determine that no

misconduct occurred, our analysis ends there. 48 If, however, the prosecutor did engage in

misconduct, we move to the second step in the plain error analysis by applying the

Wainwright standard.49

Under the Wainwright standard, “the error complained of must be so clearly

prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial

process” (the “Wainwright test”).50 Further, “the doctrine of plain error 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

47
Baker, 906 A.2d at 150 (citations omitted).
48
Id.
49
Id.
50
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (citing Dutton v. State, 452 A.2d 127,
146 (Del. 1982)).
20
right, or which clearly show manifest injustice.”51 If we find plain error under

Wainwright, we must reverse without reaching the third step of the analysis.

“As with the harmless error analysis, if we conclude that the misconduct would

not warrant reversal under the Wainwright standard, we proceed to apply Hunter as the

third analytical step and consider whether the prosecutor’s statements are repetitive errors

that require reversal because they cast doubt on the integrity of the judicial process.”52

Under the Hunter analysis, we can reverse, “even if the prosecutorial misconduct would

not warrant reversal under the Wainwright standard.”53

Spence identifies three instances of alleged prosecutorial misconduct that he did

not object to during the proceedings below, namely: (1) the State, during its slideshow,

impermissibly characterized the victims as “helpless;” (2) the State misstated the law of

the justification defenses of self-defense and defense of others in its PowerPoint

presentation; and (3) the State included the statement “[t]he defendant is guilty of all the

charges against him” in its slideshow. The trial court found, in each instance, that the

prosecutor’s statements did not amount to prosecutorial misconduct.

1. The PowerPoint’s Characterization of the Victims

We reject Spence’s contention that the State’s characterization of the victims as

“helpless” in its PowerPoint presentation was misconduct and an impermissible appeal to

the jury’s emotions. The slides in question included the following statements: “Intent

can be formed in an instant…like when walking over top of a helpless person and

51
Baker, 906 A.2d at 150 (quoting Wainwright, 504 A.2d at 1100).
52
Id. (emphasis removed).
53
Id.
21
shooting them as they lay helpless” and “[s]hot him as he lay helpless on the floor[.]”

Spence argues that the State could have used another word, such as “unarmed,” which

would not have packed an emotional punch. We agree with the trial court that it would

have made little difference, in terms of emotional appeal to the jury, if the State had

substituted the term “unarmed” for the word “helpless.” When viewing the statements as

a whole, saying that a defendant shot an “unarmed” victim versus saying that a defendant

shot a “helpless” victim is a question of semantics. The terms “unarmed” and “helpless”

are substantially similar in effect—to be unarmed during the shooting at the elevator was

to be helpless.

Further, it was reasonable for the State to draw the inference, based on the facts,

evidence, and testimony presented, that Williams and Allen, at the time of the attack,

were helpless to defend themselves. According to Spence’s testimony, the victims were

waiting for the elevator at the time of the shooting. Although Spence testified that he

perceived Williams “reaching for his waist” after Spence had approached with the

shotgun, he admitted that he never observed Williams or Allen with a gun. In fact, no

gun was found on Williams’s body, nor was there any testimony or evidence presented

suggesting that either victim was armed. Thus, based on the evidence before this Court,

the State could logically infer that Williams and Allen were “helpless” at the time of the

shooting. Accordingly, we agree with the trial court’s conclusion that these statements

were not improper appeals to the jury’s emotions amounting to prosecutorial misconduct.

2. The PowerPoint’s Statement of the Law of Self-Defense

22
 Spence also untimely objected to four slides that, he contends, misstate the law

regarding the justification defenses. Spence objected to slides, which stated: “They (i.e.

SureShots) + Might (i.e. what could happen) ≠ Self Defense[.]” Spence also objected to

slide 059, which appeared as follows:

Self Defense
 Immediately necessary to protect against the
unlawful use of force
 To protect against death or serious physical injury
 When you are the aggressor

and

 You assume they might have a gun
There is no Self Defense54

Spence further objected to slide 060, which largely mirrored slide 059, but substitutes

“There is no Defense of Others” for “There is no Self Defense[.]”55

Spence contends that these slides misstated the law because knowledge that

someone “might” be armed, coupled with movements toward his waist, could reasonably

support a subjective belief that the person was in imminent physical harm. Therefore, he

argues that the fact that he did not know for certain whether the victims were armed did

not preclude a justification defense. The State argued that the PowerPoint slides were

only demonstrative aids and must be taken in conjunction with the comments that

accompanied each slide. We agree that the slides were improper, as they misstate the law

of self-defense.

54
A201 (emphasis in original). The last line, “There is no Self Defense,” appeared in enlarged
text.
55
A201-02. The last line, “There is no Defense of Others,” appeared in enlarged text.
23
 While a portion of the State’s oral presentations focused on Spence’s subjective

belief, the inaccurate slides created the potential for confusion.56 That is, the slides do

not properly represent the substance of 11 Del. C. § 464 to the jury. 11 Del. C. § 464(b)

provides, in part, that “a person employing protective force may estimate the necessity

thereof under the circumstances as the person believes them to be when the force is used,

without retreating, surrendering possession, doing any other act which the person has no

legal duty to do or abstaining from any lawful action.”57 Further, 11 Del. C. § 464(c) sets

forth: “The use of deadly force is justifiable under this section if the defendant believes

that such force is necessary to protect the defendant against death, serious physical injury,

kidnapping or sexual intercourse compelled by force or threat.”58 In that regard, the

slides are inaccurate and improper.

3. The PowerPoint’s Assertion that the Defendant is Guilty

Spence’s third untimely objection was to slide 066, which includes the following

statement: “The defendant is guilty of all the charges against him[.]”59 Spence argues

that this statement constituted improper vouching, as it was a personal expression

56
During closing arguments, the prosecutor paraphrased the trial court’s instructions to the jury
with respect to the defendant’s subjective belief, stating that “self-defense is when you use the
immediate use of force to protect yourself or others and you use deadly force when you think
you are going to be killed or seriously injured, and that has to be reasonable.” The prosecutor
further stated that “if someone is using self-defense, it is justifiable when that force is
immediately necessary for the purpose of protecting himself.” The prosecutor also argued to the
jury: “. . . you’ve heard about the Sure Shots and them and how dangerous they were. If you
think that was something the defendant was considering, but if that was not reasonable, if he
thought because the Sure Shots are bad, I’ve got to kill these guys, and that thought is not based
on a sound reason, then self-defense doesn’t apply to those offenses which have a reckless
mindset.”
57
11 Del. C. § 464(b).
58
11 Del. C. § 464(c).
59
A153 (emphasis in original). In the slideshow, the relevant typeface was enlarged.
24
attributable to the State concerning Spence’s guilt. “Conceptually, improper vouching

occurs when the prosecutor implies personal superior knowledge, beyond what is

logically inferred from the evidence at trial.”60 In Kirkley v. State, we addressed the issue

of improper vouching regarding the following statement made during closing arguments:

“The State of Delaware is bringing this charge because it is exactly what [the defendant]

did.”61 This Court found that “[a]sserting that the State brought the charges because [the

defendant] committed the crime implies personal knowledge outside the evidence and

emasculates the constitutionally guaranteed presumption of innocence.”62

We agree that the statement contained in slide 066 was improper. While the State

asserts that the statement appeared at the end of a series of slides in which it set forth its

arguments for each offense, the State should have included a qualifier before its

statement, such as, for example, “the evidence demonstrates.”

D. Wainwright Test: Untimely Objections

Although we disagree with the trial court’s conclusions as to two of the objections

in our plain error review, we agree that the statements and slides at issue do not rise to the

level of plain error under the Wainwright test. As noted, under the standard, “the error

complained of must be so clearly prejudicial to substantial rights as to jeopardize the

60
Kirkley, 41 A.3d at 377 (citing White v. State, 816 A.2d 776, 779 (Del. 2003); Flonnory v.
State, 893 A.2d 507, 539 (Del. 2006) (“It is well-settled that prosecutors may not express their
personal opinions or beliefs about the credibility of witnesses or about the truth of any
testimony.”)).
61
Id. at 375.
62
Id. at 378.
25
fairness and integrity of the trial process.”63 Here, the conduct at issue was not so

prejudicial to substantial rights that the fairness and integrity of the trial process was

jeopardized. As explained above with regard to Spence’s timely objections, this was not

a close case. We have previously suggested that a “plain error is more likely to be found

in the improper vouching context where witness credibility is central in a ‘close case,’

and where the error is so egregious that the trial judge should have intervened sua sponte

to correct it.”64 Accordingly, we conclude that the alleged misconduct which Spence

failed to timely object to does not satisfy the Wainwright standard.

As to the misstatement of the law of self-defense, the trial court did instruct the

jury accurately.65 The trial court explained that “[t]he Delaware code defines, in relevant

part, this defense as follows: The use of force upon or toward another person is

justifiable when the defendant believes that such force is immediately necessary for the

purpose of protecting the defendant against the use of unlawful force by the other person

on the present occasion.”66 The trial court also instructed that “[t]he use of deadly force

is justifiable if the defendant believes that the -- believes that such force is necessary to

protect the defendant against death or serious physical injury.”67 There were no

objections to the instructions with respect to the law of self-defense.

63
Wainwright, 504 A.2d at 1100 (citing Dutton, 452 A.2d at 146).
64
Whittle v. State, 77 A.3d 239, 248 (Del. 2013) (citing Clayton v. State, 765 A.2d 940, 944
(Del. 2001)).
65
B289-90 (Tr. 107:1-112:3).
66
Compare B289 (Tr. 107:13-19) with 11 Del. C. § 464(a).
67
Compare B289 (Tr. 108:4-7) with 11 Del. C. § 464(c). The trial court continued, instructing
the jury:

26
 Further, as to the use of force to protect another, the trial court instructed the jury

that “[t]his defense is available only if all -- is available only if all three of the following

conditions are met: One, Mr. Spence would have been justified in using such force to

protect himself against the unlawful force that he believed to be threatened against the

person Mr. Spence sought to protect; and, two, Mr. Spence believed that under the

circumstances, the person he sought to protect would have been justified in using such

protective force; and, three, Mr. Spence believed that the intervention was necessary for

the protection of the other person.”68 The trial court continued: “You may find Mr.

Spence guilty only if you’re satisfied beyond a reasonable doubt that Mr. Spence did not

believe that the force he used was immediately necessary to protect others then and there

from unlawful force used by the other person.”69 Although the self-defense slides were

You may find Mr. Spence guilty only if you are satisfied beyond a reasonable
doubt that Mr. Spence did not believe that the force -- that the force he used was
immediately necessary to protect himself then and there from unlawful force used
by another person -- by the other person. If you find that Mr. Spence believed
that the use of deadly force upon Mr. Williams and Mr. Allen was necessary to
protect himself against death or serious physical injury but that he was reckless in
having such belief, which was material to justify the use of deadly force, self-
defense is unavailable for the offenses of murder in the second degree,
manslaughter-reckless causation of death, and reckless endangering in the first
degree.

B289 (Tr. 108:19-109:11).
68
B289 (Tr. 109:20-110:8).
69
B290 (Tr. 111:6-11). The trial court also instructed the jury as follows: “If you find that Mr.
Spence believed that the use of deadly force upon Mr. Williams and Mr. Allen was necessary to
protect others against death or serious physical injury but that he was reckless in having such
belief, which was material to justify the use of deadly force, the defense of use of force to protect
others is unavailable for the offenses of murder second degree, manslaughter-reckless causation
of death and reckless endangering in the first degree.” B290 (Tr. 111:12-21).
27
improper, the trial court’s instructions were accurate. We conclude that the error did not

jeopardize the fairness and integrity of the trial.

E. The Hunter Test

The final step of both harmless and plain error review is to apply the Hunter test to

any instances of prosecutorial misconduct, regardless of whether the conduct passed the

Hughes test or the Wainwright test. The Hunter test, as noted, considers “whether the

prosecutor’s statements are repetitive errors that require reversal because they cast doubt

on the integrity of the judicial process.”70 Here, of Spence’s alleged six instances of

prejudicial misconduct, three of these can be considered prosecutorial misconduct: Slide

067, the slide that provides “[t]he defendant is guilty of all the charges against him[,]”

and the slides describing the justification defenses. But, even when viewed together,

these statements did not cast doubt on the integrity of the judicial process, particularly in

light of the substantial amount of evidence presented in the case against Spence,

including his own testimony. The trial court’s instructions were proper and there were no

objections to them. Therefore, this Court finds that reversal is not warranted under the

Hunter test.

V. CONCLUSION

For the foregoing reasons, the judgment of the Superior Court is AFFIRMED.

70
Hunter, 815 A.2d at 733.
28