IN THE SUPREME COURT OF THE STATE OF DELAWARE
TODD GREEN, §
§
Defendant-Below, § No. 540, 2015
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 1406002733
§
Plaintiff-Below, §
Appellee. §
Submitted: August 24, 2016
Decided: September 7, 2016
Before STRINE, Chief Justice; VALIHURA, and SEITZ, Justices.
ORDER
This 7th day of September 2016, upon consideration of the parties’ briefs and
the record below, it appears to the Court that:
(1) A Superior Court jury convicted Todd Green of raping the thirteen
year old daughter of his girlfriend, Theresa Ferrer (“Mother”). The jury convicted
Green on the strength of physical evidence and testimony from witnesses,
including the victim, Mother, victim’s older sister, and the nurse who treated the
victim on the night of the rape. The Superior Court sentenced Green to a
mandatory prison term of fifty years and nine months.
(2) Green makes one argument on appeal. He contends that the
cumulative effect of irrelevant and prejudicial testimony deprived him of a fair
trial. After a careful review of the record on appeal, we find that the challenged
testimony did not jeopardize Green’s substantial rights or deprive him of a fair
trial. We therefore affirm his convictions.
(3) Mother and her three daughters lived for a time in Connecticut, but
moved to Mother’s sister’s house in Camden, Delaware due to conflict between
Mother and Green. In February 2012, Mother and her daughters then moved to
Kent Acres in Dover, Delaware. Green soon moved into the Kent Acres home.
The five then moved to another home on Thames Drive in Dover. In August 2013,
they again moved, this time to Stevens Street in Kent County just south of Dover.
The victim and her older sister shared a bedroom in the Stevens Street home.
(4) On May 28, 2014, the victim stayed home from school because she
did not feel well. That evening, Mother left the house at around 8 p.m. to go
bowling. The victim’s older sister was away from the house at work. After the
youngest daughter went outside to play, the victim and Green were the only ones in
the house. Green went into the victim’s bedroom while she was sleeping and
removed her clothes. Green then sexually assaulted the victim. When victim’s
older sister came home from work after missing calls from the victim, the victim
2
told her that Green raped her. Green had gone “out somewhere” and was not at the
house when the victim’s older sister returned.1 The victim’s older sister called 911.
(5) When a police officer arrived at the Stevens Street home around
midnight, he spoke with the victim and collected the clothes she wore during the
assault. Once Mother returned home, the officer accompanied Mother, the victim,
and the victim’s sisters to Kent General Hospital for a medical examination. Dawn
Culp, a sexual assault nurse examiner, examined the victim. Culp swabbed the
victim’s chest for seminal fluid residue and noted abrasions in the victim’s vagina.
A DNA analysis of seminal fluid stains from the victim’s clothes and the swab
from her breast revealed a match with Green’s DNA.
(6) On February 2, 2015, a grand jury indicted Green on fifteen counts of
sexual assault. The indictment alleged that four counts occurred at the Kent Acres
home, four counts occurred at the Thames Drive home, and the remaining seven
counts occurred at the Stevens Street home.
(7) At Green’s June 2015 trial, the victim, the Mother, victim’s older
sister, and Culp testified. The victim, who was fourteen at the time, testified that
Green raped her on three separate occasions, once at each of their homes. The
victim’s older sister testified that when she returned from work the night of the
May 2014 incident, the victim told her that Green raped her and that it was not the
1
App. to Opening Br. at 4.
3
first time. Mother testified that after she came home from her bowling league,
police were at the house. She also testified that she went to the hospital with her
daughters where the victim was crying and did not want to talk about the incident.
Culp testified that she performed an extensive examination of the victim. During
her examination, she found abrasions in the victim’s vagina and swabbed for DNA
material. The DNA taken from the victim’s clothes and breast matched Green’s
DNA.
(8) As part of some background questions about Green’s relationship with
Mother, the victim’s older sister testified that she had problems with Green
because “he would hit [her] mom.”2 Green’s counsel did not object. Mother also
testified that she and her daughters moved from Connecticut to Delaware because
she and Green had a fight while living in Connecticut and he threatened to kill
them. Green’s counsel objected and the court sustained the objection. Counsel did
not request a curative instruction.
(9) During Culp’s testimony, in response to a question about whether the
victim’s complaints were consistent with the injuries she found, Culp responded
that she believed what the victim told her about what occurred. Green’s counsel
objected to Culp’s vouching for the credibility of the victim. The court sustained
the objection and instructed the jury to disregard Culp’s personal opinion
2
Id. at 18.
4
testimony on the victim’s credibility. After trial the jury found Green guilty of
three of the fifteen counts of sexual assault. The court sentenced Green to a
mandatory fifty year and nine month Level V sentence.
(10) Green argues on appeal that the cumulative effect of the statements
made at trial by the Mother, victim’s older sister, and Culp deprived him of a fair
trial. Green contends first that the victim’s older sister’s statement about Green
hitting her mother was unfairly prejudicial.3 He argues that the sister’s testimony
was improperly used to show Green’s bad character, and therefore should have
been stricken.
(11) Counsel did not object to the testimony. When there is no objection to
evidence, we review for plain error.4 Error is plain when it is “so clearly
prejudicial to substantial rights as to jeopardize the fairness and integrity of the
trial process.”5 Plain errors are “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
3
App. to Opening Br. at 18.
Q: What was your relationship like with the defendant?
A: We were okay at first.
Q: And then what was your relationship after you were okay?
A: We started having problems because I found out that he would hit my mom.
Q: After you found that out, what happened in your relationship between you and
the defendant?
A: I didn’t like him anymore.
4
Supr. Ct. R. 8; Wainwright, 504 A.2d at 1100.
5
Wainwright, 504 A.2d at 1100.
5
manifest injustice.”6 “To be plain, the alleged error must affect substantial rights,
generally meaning that it must have affected the outcome of [the] trial.”7 The
burden of demonstrating that the error was prejudicial is on the party claiming
error.8
(12) Green has failed to meet his heavy burden to show that allowing the
unobjected-to testimony was such fundamental error that it jeopardized the fairness
of the trial. Although the testimony might have been stricken if there had been an
objection, we find that the other admissible evidence of Green’s guilt overcomes
any prejudice from the older sister’s isolated remark. The victim testified that
Green raped her at the Stevens Street home, her older sister and Mother testified
about the events following the rape, and Culp testified convincingly about the
results of her sexual assault examination of the victim. Further, the DNA evidence
recovered from the victim’s clothes and her body matched Green’s DNA. With
such overwhelming evidence of guilt, Green has failed to show that the admission
of the older sister’s statement would have affected the outcome of the trial.
(13) Green argues next that Mother’s statement—that she and her
daughters moved from Connecticut to Delaware because Green threatened to kill
them—was unfairly prejudicial because the court gave no curative instruction after
6
Id.
7
Brown v. State, 897 A.2d 748, 753 (Del. 2006) (citing to United States v. Olano, 507 U.S. 725,
734 (1993)).
8
Brown, 897 A.2d at 753.
6
sustaining an objection.9 Green argues that although his counsel objected to
Mother’s statement and the court sustained the objection, the court nonetheless
erred because it did not on its own initiative give a curative instruction to prevent
prejudice. Generally, whether to give a curative instruction is at the discretion of
the trial judge, and we would review for abuse of discretion.10 But it is incumbent
on counsel to request a curative instruction, which he did not.11 Because trial
counsel did not make the request, we review for plain error.12 A similar plain error
analysis applies to this argument. After reviewing the record, we find that the
isolated reference to threats that were allegedly made years before the rape was not
so prejudicial as to undermine the fairness of Green’s trial. Further, as we noted
when reviewing the older sister’s testimony, the overwhelming testimonial and
physical evidence of his guilt outweighed any prejudice that might have occurred.
(14) Green also argues that Culp’s statement at trial vouching for the
credibility of the victim was unfairly prejudicial, impermissible, and warranted a
9
App. to Opening Br. at 29:
Q: Why did you move to Delaware?
A: Well, we having a fight—I having a fight with him that time. And then he
threatened my kids and me, that he’s going to kill us; so I move. I move out.
10
Sammons v. Doctors for Emergency Servs., P.A., 913 A.2d 519, 539 (Del. 2006).
11
88 C.J.S. Trial § 157, Westlaw (updated 2016) (“When an error is made, it is incumbent upon
opposing counsel to then and there voice an objection and, if sustained, move for appropriate
relief.”); 88 C.J.S. Trial § 216, Westlaw (updated 2016); Sudler v. State, 83 A.3d 738 (Del.
2013) (Table) (citing Swan v. State, 820 A.2d 342, 357 (Del. 2003)) (“The defense objected to
the remark and the trial court sustained the objection. The prosecutor rephrased his comment,
but the judge did not give a curative instruction. . . . [T]his error was not plain error because it
was insufficient to overcome the extensive evidence of Swan’s guilt.”).
12
See Sudler v. State, 83 A.3d 738 (Del. 2013) (Table); see also Claudio v. State, 585 A.2d 1278,
1281 (Del. 1991).
7
mistrial. Because Green’s trial counsel did not request a mistrial, we review for
plain error.
(15) A witness may not bolster or vouch for the credibility of another
witness by testifying that the other witness is telling the truth.13 Vouching
“includes testimony that directly or indirectly provides an opinion on the veracity
of a particular witness.”14 Culp’s statement vouched for the credibility of the
victim. But the Superior Court should grant a mistrial only where there is
“manifest necessity” or the “ends of public justice would be otherwise defeated.”15
A mistrial is proper only when there are “no meaningful and practical alternatives”
to remedy the matter.16 Further, a prompt curative instruction can, under certain
circumstances, mitigate the prejudice from inadmissible evidence.17
(16) Here, Culp’s comment was an isolated occurrence. The Superior
Court asked Green’s attorney more than once what action she wanted the court to
take.18 Green’s attorney did not ask for a mistrial, but instead asked that the
statement be stricken from the record. The Superior Court complied and promptly
13
Richardson v. State, 43 A.3d 906, 910 (Del. 2012) (quoting Capano v. State, 781 A.2d 556,
595 (Del. 2001)).
14
Id.
15
Brown, 897 A.2d at 752 (quoting Fanning v. Superior Court, 320 A.2d 343, 345 (Del. 1974)).
16
Dawson v. State, 637 A.2d 57, 62 (Del. 1994) (quoting Bailey v. State, 521 A.2d 1069, 1077
(Del. 1987)).
17
Zimmerman v. State, 628 A.2d 62, 66 (Del. 1993).
18
App. to Opening Br. at 40.
8
instructed the jury to disregard Culp’s statement.19 Under the circumstances,
where the court took the steps requested by counsel to mitigate any prejudice, and
no request was made for a mistrial, the Superior Court did not plainly err by
continuing with the trial.
(17) Green also argues that the cumulative effect of the bad character
evidence from the Mother and victim’s older sister, and the impermissible
vouching from Culp, was prejudicial error that warrants reversal. Where several
errors occur in the Superior Court, we weigh the cumulative effect to determine
whether the errors were so “prejudicial to substantial rights as to jeopardize the
fairness and integrity of the trial process.”20 The burden is on Green to
demonstrate that the admission of prejudicial evidence amounted to plain error.21
(18) Green has not shown that the cumulative effect of the witnesses’
statements deprived him of a fair trial or resulted in “manifest injustice.” 22 As we
have noted before, the statements were isolated events in the trial, the trial judge
properly addressed evidentiary objections brought to his attention, and gave a
19
App. to Opening Br. at 41.
THE COURT: Ladies and Gentlemen, I’m going to instruct you at this stage to
disregard the testimony regarding a personal opinion of the witness as to the
credibility of the—of another individual in this case.
You, as a jury, are the sole determiners of credibility. And you are to put no
weight on the opinion of another person testifying as to whether someone is
truthful or not; that is based on your assessment of credibility of the witnesses.
So, given that, that answer will be stricken, and we’ll continue with this case.
20
Starling v. State, 130 A.3d at 336 (quoting Wainwright, 504 A.2d at 1100).
21
Brown, 897 A.2d at 753.
22
Wainwright, 504 A.2d at 1100.
9
curative instruction when requested. Any prejudicial effect of the testimony relied
upon by Green is also far outweighed by the overwhelming evidence of his guilt.
Thus, the Superior Court was not required to grant Green a new trial based on the
evidentiary issues raised by Green.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is affirmed.
BY THE COURT:
/s/ Collins J. Seitz, Jr.
Justice
10
Green v. State
Combined Opinion