Summary
The Supreme Court of Delaware affirmed John E. Foster's convictions for second-degree burglary and second-degree robbery. The court held that the prosecutor's improper reference to the television show CSI did not constitute plain error, that testimony concerning the victim's statements was admissible as an excited utterance, and that Foster waived his challenge to the foundation for admission under 11 Del. C. § 3507.
Topics
Practice areas
Questions Presented
- Whether the prosecutor's reference to CSI in opening statement denigrated the reasonable-doubt standard and constituted plain error.
- Whether the trial court abused its discretion by admitting Flickenger's statements to his sister under the excited-utterance exception to the hearsay rule.
- Whether the trial court committed plain error by admitting Flickenger's out-of-court statements under 11 Del. C. § 3507 without an adequate predicate foundation.
Holdings
- Although the prosecutor's CSI-related argument was improper because it was unsupported by record evidence, the unobjected-to comments did not denigrate the reasonable-doubt standard or constitute plain error.
- The trial court acted within its discretion in admitting Flickenger's statements to his sister because the statements satisfied Delaware Rule of Evidence 803(2)'s excited-utterance requirements.
- Foster waived his argument that the State failed to establish the foundation required by 11 Del. C. § 3507. Even absent waiver, admission of the statements did not constitute plain error.
Key quotations
“However, no form of argument by analogy or otherwise can suggest that a jury base its decision upon substantive facts that are not in evidence.” (529)
“While the amount of time that has elapsed from the occurrence of the event or condition is a factor to consider in the analysis, it is not solely determinative.” (530)
Factual background
In the early morning of March 28, 2007, Foster entered Bruce Flickenger's home through a bedroom window, demanded money, and took twenty dollars. Flickenger, a mentally handicapped adult, sought help and made statements about the incident to several people, including his sister, while appearing terrified, pale, shaken, and repetitive. The trial court admitted the statements, and the prosecutor referred to the television show CSI during opening statement despite the absence of forensic evidence of value.
Procedural history
A Superior Court jury convicted Foster of second-degree burglary and second-degree robbery. The trial court adjudicated him a habitual offender under 11 Del. C. § 4214(a) and sentenced him to eighteen years' incarceration. Foster appealed, challenging the prosecutor's CSI reference and the admission of out-of-court statements; the Supreme Court of Delaware affirmed.