Delaware Case Law

JOHNSON v. STATE, 287, 2006 (Del. 2006) MARCUS JOHNSON,
Defendant Below-Appellant, v. STATE OF DELAWARE Plaintiff
Below, Appellee. No. 287, 2006. Supreme Court Of
Delaware. Submitted: October 20, 2006. Decided: December
22, 2006.

Court Below: Superior Court of the State of Delaware in and
for New Castle County ID # 0403012959.


Henry duPont Ridgely, Justice.

(1) Appellant Marcus Johnson appeals his Superior Court
conviction of various drug and vehicle related
charges.[fn1] He contends that the trial court erred by not
declaring a mistrial when two State witnesses made vague
references to Johnson being “known” by police. We find no
merit to his arguments and affirm.

(2) Responding to citizen reports of drug activity,
Detectives Messiner and Whiley and Seargent Becker, all of
the New Castle County Police Department, observed a vehicle
with an expired temporary registration parked facing
westbound on the eastbound traffic lane of Parma Avenue
with two people inside. After surveilling the vehicle for
several minutes, the police decided to approach. The
passenger identified himself as Richard Jones. Detective
Messiner immediately noticed that Jones had what appeared
to be a metal pipe used to smoke crack cocaine attached to
his key ring.[fn2]

(3) Upon noticing the pipe, Detective Messiner ordered
Jones out of the vehicle. Once Jones exited, she noticed a
“clear sandwich baggy which contained an off-white,
rock-like substance that appeared to be consistent with
crack cocaine” beneath where Jones was sitting. At this
point, Detective Messiner ordered the driver out of the car
and the police performed a searched the vehicle.[fn3]
During the search, Sergeant Becker found a “brown sandwich
bag . . . [containing] an orange digital scale and
identical sandwich baggies, identical to what the cocaine
was found in.” Police recovered a total of 21.49 grams of
crack cocaine from the vehicle.

(4) Both Jones and Johnson were arrested. Jones pled guilty
to possession of drug paraphernalia and, pursuant to his
plea agreement, testified as a State witness at Johnson’s
trial. Regarding the drugs, Jones testified, “[t]hey

mine. All I can say is they weren’t my drugs. I didn’t see
any drugs in the car. We weren’t talking about drugs, we
were talking about working on the car.”[fn4]

(5) Detective Messiner and Sergeant Becker also testified
at trial. It is the testimony of these two witnesses that
form the basis of Johnson’s appeal. The prosecutor asked
Detective Messiner, “[d]id your surveillance reveal
something that caused you to approach the vehicle?”
Detective Messiner responded, “[w]e had information that the
vehicle was driven by or had been operated by Marcus
Johnson, who I was familiar with, and that the same vehicle
was involved from the neighborhood complaints and drug
activity.” Sergeant Becker similarly testified that he knew
the Defendant. When asked by defense counsel whether
Johnson tried to hide his identity, he stated, “he was a
known entity anyway, so really.” The trial judge
struck both statements from the record.[fn5] In addition,
the trial judge immediately gave a curative instruction,
telling the jury not to consider the previous

(6) Johnson complains that these two statements were so
unduly prejudicial that they could not be cured, and thus,
the trial court erred in not granting a mistrial. “We
review the denial of a motion for mistrial after an
unsolicited response by a witness for abuse of

(7) A mistrial should be granted “only where there is
`manifest necessity’ or the `ends of public justice would
be otherwise defeated.'”[fn8] When determining whether
non-responsive answers by witnesses form the basis for a
mistrial, this Court considers “the nature and frequency of
the conduct or comments, the likelihood of resulting
prejudice, the closeness of the case and the sufficiency of
the trial judge’s efforts to mitigate any prejudice in
determining whether a witness’s conduct was so prejudicial
as to warrant a mistrial.”[fn9] Johnson claims that each
factor weighs in favor of reversal.

(8) Johnson has not established a manifest necessity for a
mistrial. Vague and infrequent statements that do not
reference past criminal conduct are generally the type that
can be cured.[fn10] In Pena, this Court determined that
three vague statements by a police officer relating to a
drug investigation did not warrant a mistrial because the
detective only referenced the investigations “generically,”
and “did not reveal that the defendant was the target of
the investigation, or that the traffic stop was a part of
the [defendant’s] investigation.[fn11] We reached a similar
result in Hendricks, where an officer testified that he
found a “standard court paper of notice” when searching the
defendant’s hotel room.[fn12] Although decided before Pena,
Gattis v. State[fn13] is also instructive. In Gattis, the
trial court denied defendant’s motion for a mistrial after
a police officer testified that he knew the defendant “from
my days with the Wilmington P.D.”[fn14] We held in that
case that the trial court did not abuse its discretion in
denying a mistrial because “there was no direct reference
to prior criminal conduct and . . . the officer’s previous
contact with the defendant could have been in a context
other than an arrest.”[fn15]

(9) The statements which Johnson claims require a new trial
were vague and infrequent and there was no direct reference
to past criminal activity. The first statement only implied
that the vehicle was reported to be involved in drug

in the past, not Johnson himself, and there was testimony
at trial that the vehicle did not belong to Johnson. In
addition, the statement that Johnson was a “known entity”
is no more prejudicial than the reference to court papers
in Hendricks. Being a “known entity” could have a variety
of meanings, and Johnson could be known from “a context
other than arrest.”[fn16]

(10) In addition, this was not a very close case. The State
offered testimony of the only other passenger in Johnson’s
vehicle, who testified that the drugs did not belong to
him. As the driver, Johnson had easy access to both the
cocaine found under the front passenger seat and the
paraphernalia found behind the passenger seat. These facts
support the jury’s finding that the drugs belonged to him
and not to Jones. Thus, the case was not as close and
Johnson argues.

(11) The trial judge’s response to the statements
ameliorated any prejudice that may have resulted. The trial
judge immediately struck both statements from the record
and instructed the jury to disregard the previous
statement.[fn17] The jury is presumed to follow these

(12) Johnson also argues that officers Messiner and
Becker’s testimony undermined his trial strategy. The
defense contends that Johnson “elected not to testify in
order to prevent his prior convictions from being admitted
into evidence.” As we stated in Pena, Johnson “cites no
legal authority to support a reversal of his conviction and
sentence because he was forced to change his trial
strategy. . . .”[fn19]

NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED.

[fn1] Johnson was convicted of Trafficking in Cocaine,
Possession with Intent to Deliver Cocaine, Use of a Vehicle
for Keeping a Controlling Substance, Possession of Drug
Paraphernalia, Displaying an Expired Temporary Registration
Plate, and Driving While License Suspended and/or Revoked.

[fn2] Jones later testified that the metal object on his key
ring was a “survival whistle” that he purchased from an
automotive store.

[fn3] Police also searched the individuals and found a crack
pipe in Jones’ coat pocket.

[fn4] Jones was an out-of-work auto mechanic and claimed
that he was with Johnson that day to do work on the

[fn5] Johnson moved for a mistrial after both statements
were made. The trial judge denied the first motion
immediately and reserved his decision on the motion
following Becker’s statement. The judge later denied that
motion as well.

[fn6] With regard to Detective Messiner’s testimony, the
trial judge gave the following instruction to the jury:
“Members of the jury, I have just sustained an objection to
the last answer of the witness, which referenced alleged
prior use of the automobile. So you are directed to give no
weight whatsoever to that last answer by the witness and pay
no he[ed] to it at all.” Following Becker’s testimony, the
trial judge told the jury, “the Court will strike the last
answer of the witness to the question asked. You are to
give no weight whatsoever or consider it in any way
— not consider it in any way to your deliberations.”

[fn7] Pena v. State, 856 A.2d 548, 550 (Del. 2004). “A trial
judge sits in the best position to determine the
prejudicial effect of an unsolicited response by a witness
on the jury.” Id.

[fn8] Hendricks v. State, 871 A.2d 1118, 1122 (Del. 2005)
(citing Zimmerman v. State, 628 A.2d 62,66 (Del. 1993));
Pena, 856 A.2d at 552 (citations omitted);

[fn9] Pena, 856 A.2d at 550-51.

[fn10] Hendricks, 871 A.2d at 1123 (holding that the trial
judge did not abuse his discretion in denying a mistrial
when the statement “did not automatically create an
inference that the defendant was involved in another
criminal proceeding, or subject to other criminal charges.”
Cf. Bailey v. State, 521 A.2d 1069, 1076 (Del. 1987)
(holding that the grant of a mistrial was appropriate
because “[t]he jury not only learned that the defendant had
been previously tried for the same charge, but that the
1980 trial had ended in a conviction. That information,
regardless of how it is received, is inherently prejudicial
and even more so when a juror is exposed to those facts
during trial.”

[fn11] Pena, 856 A.2d at 550. The officer in Pena was told
before testifying not to cite the druginvestigation.
Notwithstanding those instructions, he testified that his
assignment that day was to “conduct a drug investigation,”
that he asked the two woman if he could question them “in
regard to the other investigation,” and that he told the
defendant at the scene of the crime that he was “conducting
an investigation in regards to narcotics.” Id.

[fn12] Hendricks v. State, 871 A.2d 1118, 1122 (Del. 2005)
(nothing the vagueness of the response, the Court stated
that “[t]he mere reference to `court papers’ did not
automatically create an inference that Hendricks was
involved in another criminal proceeding, or subject to
other criminal charges.” See also Bunting v. State, 907 A.2d
145 (Del. 2006) (applying “the more stringent standard
applied to claims of prosecutorial misconduct,” this Court
held that testimony from a probation officer stating that
she had been to the defendant’s house on an “average of
about three times a month” did not constitute grounds for a

[fn13] Gattis v. State, 637 A.2d 808, (Del 1994).

[fn14] ID.

[fn15] ID.

[fn16] Gattis, 637 A.2d at 819.

[fn17] Pena, 856 A.2d at 551 (“Prompt jury instructions are
presumed to cure error and adequately direct the jury to
disregard improper statements, even when the error
references extraneous offenses.”).

[fn18] Hendricks, 871 A.2d at 1123.

[fn19] Pena, 856 A.2d at 552.