Opinion
No. 463, 1997.
Decided: November 23, 1998.
Superior CrA IN96-10-0468.
Affirmed.
Unpublished Opinion is below.
DERRICK T. EVERETT, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 463, 1997. In the Supreme Court of the State of Delaware. Submitted: September 22, 1998. Decided: November 23, 1998.
Before WALSH, HARTNETT and BERGER, Justices.
ORDER
This 23rd day of November, upon consideration of the briefs of the parties, it appears to the Court that:
1) Derrick T. Everett appeals from his conviction, following a jury trial, of first degree murder. Everett argues that the Superior Court erred in two respects:
(I) it denied his motion to redact portions of his videotaped statement; and (ii) it refused to grant a mistrial after the victim's mother started sobbing during closing arguments.
2) Everett spent the evening with the victim, Stacy Kenner, on the night she died. The next morning, he voluntarily appeared at the Wilmington Police Station to report her death. According to Everett, Kenner became loud and unruly after consuming a large quantity of crack cocaine at her apartment. Everett tried to calm her down by placing her in a headlock and choking her. Kenner quieted down and Everett helped her into bed. The two had sex and Everett went to sleep. When Everett awoke the next morning, Kenner was lying next to him, dead.
3) Everett described his relationship with Kenner and detailed the events that preceded her death in a videotaped interview with two police officers. At trial, he asked that the videotape be redacted to delete four references to the fact that Everett sold drugs. The trial court denied the request on the ground that the four statements were intertwined with the rest of Everett's description of his and Kenner's activities on the night she died.
4) Everett argues that the drug references were irrelevant and inadmissible under D.R.E. 404(b) as evidence of bad character or criminal propensity. He acknowledges that bad acts evidence may be admitted if it is "inextricably intertwined" with evidence of the charged offense, but argues that the drug references could have been deleted without a "chronological and conceptual void" that would confuse the jury. Pope v. State, Del. Supr., 632 A.2d 73, 76 (1993).
In addition, Everett contends that the evidence should have been excluded because its prejudicial effect outweighed its probative value.
5) The trial court's decision not to redact the videotape is reviewed for abuse of discretion. Howard v. State, Del. Supr., 549 A.2d 692 (1988). We are satisfied that the court acted within its discretion in concluding that the drug references were inextricably intertwined in the account of Kenner's death. Everett and Kenner had spent the evening consuming alcohol and cocaine. During that time, Everett sold some of his cocaine, gave some to Kenner, watched her become loud and unruly, and tried to calm her down by choking her. Everett's description of how the evening unfolded would have been incomplete and confusing if the requested material had been redacted.
6) At trial, Everett did not object that the evidence also should be excluded because of its prejudicial effect. Accordingly, we review for plain error and will reverse only if the failure to redact the videotape was "so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process." Wainwright v. State, Del. Supr., 504 A.2d 1096, 1100 (1986).
7) We find no basis to reverse. The drug sale references were four very brief statements in a videotape that was more than one hour long. Both the videotape and the trial focused on the consumption of drugs and the death that followed, not on the sale of drugs. The additional negative impact on the jury of knowing that Everett was a drug seller in addition to a drug user was not significant in the context of this brutal murder by strangulation.
8) Finally, Everett argues that the trial court should have granted a mistrial because Kenner's mother was sobbing during closing arguments. We find no merit to this argument. The trial court is in the best position to gauge how an outburst, by a witness or spectator, affects the jury. Taylor v. State. Del. Supr., 690 A.2d 933 (1997). In this case, the trial court noted that, although Kenner's mother had been sobbing, she was not being disruptive. The court even questioned whether the jury noticed the sobbing. There is nothing in the record to suggest that the trial court's evaluation was incorrect and we find no abuse of discretion in the court's denial of the mistrial motion.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.