IN THE SUPREME COURT OF THE STATE OF DELAWARE

AARON O. LOWMAN, §

§ No. 23, 2015

Defendant Below, §

Appellant, §

§ Court Below – Superior Court

v. § of the State of Delaware in

§ and for Kent County

STATE OF DELAWARE, §

§ Criminal ID No. 1305008595

Plaintiff Below, §

Appellee. §

Submitted: August 26, 2015

Decided: August 28, 2015

Before STRINE, Chief Justice; VALIHURA, and SEITZ, Justices.

O R D E R

This 28th day of August 2015, upon consideration of the parties’ 

briefs and the record below, it appears to this Court that:

(1) On October 22, 2014, a Superior Court jury convicted 

Appellant Aaron O. Lowman of possession of a firearm by a person 

prohibited, possession of a firearm during the commission of a felony, 

possession of firearm ammunition, disregarding a police signal, resisting 

arrest, driving with a suspended or revoked license, aggressive driving, 

improper passing on the left, improper lane change, failure to have lights on, 
2

and speeding. 1 Prior to sentencing, the State filed a Motion to Declare 

Lowman a Habitual Offender under 11 Del. C. § 4214(b).2

 The Superior 

Court granted the motion and sentenced Lowman to life in prison without 

the award of good time.3

(2) Lowman appeals his convictions. He argues that the Superior 

Court erred in denying his motion for a mistrial after a witness for the State 

started to testify about a transaction in which Lowman was involved where 

he acquired a handgun in exchange for drugs. We find that the Superior 

Court did not abuse its discretion when it denied the motion. We therefore 

affirm the judgment of the Superior Court.

(3) On the evening of June 15, 2013, Delaware State Police 

Detective Matthew Long and Delaware Department of Probation and Parole 

officer David Angelo were driving in Smyrna, Delaware in an unmarked 

Chevrolet Impala. They spotted Lowman, whom they knew was wanted on 

outstanding criminal charges.

4 Lowman was driving a rented beige Nissan 

Altima registered in North Carolina.5

 

 1 App. to Opening Br. at 1-2 (Superior Court Docket), 6-22 (Indictment). 

2 Id. at 4 (Superior Court Docket). 

3 Opening Br. at 5. 

4 App. to Opening Br. at 28 (Trial Transcript); App. to Answering Brief at 2 (Trial Test. 

of Angelo, Oct. 21, 2014). 

5 App. to Opening Br. at 30 (Trial Test. of Long, Oct. 21, 2014). 
3

(4) Detective Long and Officer Angelo attempted to stop the Nissan.

6

Officer Angelo got out of the police vehicle with his gun drawn and

identified himself as a probation and parole officer. He addressed Lowman 

by name and told him to step out of the car.

7

 Instead of complying, Lowman 

sped away.8

 Detective Long and Officer Angelo chased the Nissan with 

warning lights on at speeds exceeding 100 miles per hour. A camera in the 

police car recorded the high speed chase. Lowman managed to pull away, 

and the officers discontinued the chase.

9

(5) Long and Angelo came across the Nissan again later in the 

evening and resumed pursuit.

10 Lowman managed once again to pull away 

from the police vehicle, but Long and Angelo ultimately found the Nissan on 

State Route 9, overturned on its roof.

11 

(6) As Detective Long and Officer Angelo approached the Nissan, 

they saw Lowman break the glass out of the back window, crawl out of the 

vehicle, and attempt to run away.

12 Detective Long used his taser to subdue 

Lowman and then put him in handcuffs.

13

 6 Id. 7 App. to Answering Br. at 2 (Trial Test. of Angelo, Oct. 21, 2014). 

8 Id.

9 App. to Opening Br. at 32-39 (Trial Test. of Long, Oct. 21, 2014).

10 Id. at 40. 

11 Id.; App. to Answering Br. at 2 (Trial Test. of Angelo, October 21, 2014).

12 App. to Opening Br. at 42-44 (Trial Test. of Long, Oct. 21, 2014).

13 Id. at 45-46. 
4

(7) Lowman’s girlfriend, Marshay Johnson, who was also charged 

in the matter, was inside the Nissan.14 The officers took Lowman from the 

scene to Christiana Hospital for medical treatment. 15 After a tow truck 

arrived and turned the Nissan upright, Delaware State Police Officer David 

Hake, Jr. searched the vehicle and found a loaded handgun on the driver’s 

floorboard and a package of .22 caliber ammunition underneath the 

dashboard above the gas pedal.16 

(8) Nine days later, Detective Long interviewed Lowman at the 

James T. Vaughn Correctional Center. He read Lowman a Miranda warning 

and Lowman confirmed that he understood his rights. Detective Long 

attempted to record the interview but the quality of the recording turned out 

to be poor.17 The interview was difficult to hear on the recording18 and the 

recording was not introduced into evidence at Lowman’s trial.19 Detective 

Long testified at Lowman’s trial that in the course of the interview Lowman 

told Detective Long that the handgun and ammunition found in the Nissan 

belonged to him.20

 14 Id. at 44-45.

15 Id. at 49. 

16 App. to Opening Br. at 69-70 (Trial Test. of Hake, Oct. 21, 2014).

17 App. to Opening Br. at 106-07 (Trial Test. of Long, Oct. 21, 2014).

18 Id. at 107. 

19 Opening Br. at 21.

20 App. to Opening Br. at 118 (Trial Test. of Long, Oct. 21, 2014).
5

(9) The State called Detective Long as a witness at Lowman’s trial. 

The following exchange took place between the prosecutor and Detective 

Long, regarding the interview with Lowman at the Vaughn Correctional 

Center:

Prosecutor: What did he say about the handgun?

Detective Long: I asked him questions about the handgun. 

What Mr. Lowman advised to me is that he 

obtained the handgun from what he 

described as a fiend, or someone who 

commonly abuses drugs. What he explained 

to me was that he traded three grams of 

crack cocaine –21

Interrupting the testimony, defense counsel objected and moved for a 

mistrial. The prosecutor informed the court that the witness had been 

instructed not to bring up drugs during his testimony.

22 Defense counsel 

argued that Detective Long’s testimony was highly prejudicial to Lowman 

because it introduced evidence of an uncharged crime.23 

 21 Id. at 108. 

22 App. to Opening Br. at 109 (Trial Transcript). This Court has previously directed the 

State to “prepare their witnesses to avoid the risk of prejudice from unnecessary 

references” to past alleged criminal acts on the part of defendants. Justice v. State, 947 

A.2d 1097, 1102 n. 27 (Del. 2008). “Evidence of other crimes, wrongs or acts is not 

admissible to prove the character of a person in order to show action in conformity 

therewith.” Del. R. Evid. 404(b). It appears in this case the caution was given to the 

witness, but the witness inadvertently referenced the alleged drug transaction when 

testifying about Lowman’s account of how he had come into possession of the handgun 

found in the Nissan.

23 Id.
6

(10) The trial judge applied the four-factor test established by this 

Court in Pena v. State24 to evaluate whether the unsolicited comment from 

Detective Long was sufficiently prejudicial to merit a mistrial. After 

reviewing all of the factors, the court found the factors weighed against a 

mistrial. Citing Lowman’s admission to the police that the handgun and 

ammunition discovered in the rental car belonged to him, the court 

concluded that the case was not a close one and thus Lowman was not likely 

prejudiced by Long’s testimony. The court also believed that a curative jury

instruction was sufficient to mitigate any prejudice.25 The court denied the 

motion for a mistrial and instructed the jury as follows:

Earlier you may have heard the officer, who was on the stand, 

testify and provide testimony which indicated that the handgun 

was obtained through someone who commonly abuses drugs. 

And it was explained to him that, perhaps, the drugs were 

traded for prohibited contraband. You are to ignore that 

statement. That has no bearing on this case. It is to be stricken 

from the record, and you are not to consider it at all in any 

determination you have in this case.26

(11) Lowman argues on appeal that the Superior Court abused its 

discretion in denying his motion for a mistrial. Lowman contends that, in its 

application of the Pena factors, the Superior Court gave insufficient weight 

 24 856 A.2d 548 (Del. 2004). 

25 App. to Opening Br. at 112-115 (Trial Transcript). 

26 Id. at 118.
7

to the prejudice Lowman suffered as a result of Long’s testimony, and 

overstated the ability of the instruction to cure the prejudice. In Lowman’s 

view, when the jury heard evidence that Lowman was guilty of uncharged 

drug dealing, it encouraged them to improperly infer that he was guilty of 

the firearms offenses because of the prevalent association in crime statistics, 

the media, and popular culture of drug dealing with firearms possession.

According to Lowman, the curative instruction was insufficient to mitigate 

the prejudice because the instruction simply called attention once more to 

the testimony and emphasized its importance. 

(12) The State argues in response that the trial judge properly 

applied the Pena factors in determining that a mistrial was not warranted. 

The State notes that Detective Long’s testimony was “isolated and not 

repeated.”27 The State also emphasizes that it was the defense that first 

introduced drug evidence at trial, by questioning Detective Long about the 

marijuana grinder found in Lowman’s pocket. The State contends that the 

case was not close on guilt and thus Lowman was not likely prejudiced by 

Detective Long’s remarks. Finally, the State argues that the curative 

instruction mitigated any prejudice to Lowman.

 27 Answering Br. at 12.
8

(13) Whether to grant a mistrial after an unsolicited response by a 

witness rests within the trial judge’s sound discretion. 28 We review the 

denial of a motion for mistrial in these circumstances for abuse of discretion 

or a denial of a substantial right of the complaining party.29 The decision 

will be reversed on appeal only if it is based on unreasonable or capricious 

grounds.30

(14) As an initial matter, we are skeptical that Detective Long’s 

testimony was improper. The State asked a non-leading question that did 

not suggest an answer relating to drugs. The gun for drugs transaction was 

directly relevant to one of the central issues in the case – whether the 

handgun and ammunition found in the rented Nissan belonged to Lowman. 

(15) Assuming, as the parties have in this appeal, that Detective 

Long should not have referred to drugs in his testimony, we review the 

Superior Court’s application of the four factor test adopted by this Court in 

Pena: (1) the nature or frequency of the conduct or comments; (2) the 

likelihood of resulting prejudice; (3) the closeness of the case; and (4) the 

 28 Taylor v. State, 690 A.2d 933, 935 (1997) (citing Johnson v. State, 311 A.2d 873, 874 

(1973)). 

29 Justice v. State, 947 A.2d 1097, 1102 (Del. 2008) (quoting Pena v. State, 856 A.2d 

548, 550 (Del. 2004)).

30 Banther v. State, 977 A.2d 870, 890 (Del. 2009) (citing Zimmerman v. State, 628 A.2d 

62, 65 (Del. 1993)).
9

sufficiency of the trial judge’s efforts to mitigate any prejudice.31 Applying 

the Pena factors to this case, we find no abuse of discretion. 

(16) First, Detective Long’s comments were “neither persistent nor 

frequent.”32 Long’s reference to Lowman’s alleged participation in a drug 

transaction amounted to a lone remark that was not repeated. It was an 

“isolated occurrence.”33 

(17) Second and third, although there was a risk of resulting 

prejudice from the testimony, the likelihood that Lowman was prejudiced by 

Long’s comments was slight in this case because the case was not a close 

one. The evidence against Lowman on the firearm possession charges –

possession of a firearm by a person prohibited and possession of a firearm 

during the commission of a felony – was overwhelming. Lowman 

stipulated that he was a person prohibited from possessing a firearm.34 His 

commission of the felony – disregarding a police officer’s signal – was 

caught on the police car camera.

35 Detective Long saw him crawling out of 

and fleeing from the car involved in the chase, in which the handgun and 

 31 Pena, 856 A.2d at 550-51 (citation omitted). 

32 Copper v. State, 85 A.3d 689, 694 (Del. 2014).

33 Id. 34 App. to Opening Br. at 24 (Trial Transcript).

35 Id. at 32-39 (Trial Test. of Long, Oct. 21, 2014).
10

ammunition were found. Lowman later admitted to Detective Long that the 

gun and ammunition belonged to him.36

(18) Finally, the curative instruction given to the jury by the trial 

judge was a meaningful and practical alternative in this case to declaring a 

mistrial. 37 As our cases recognize, curative instructions can be effective to 

address problematic testimony. 38 Given the reality that the drug charges 

against Lowman had been dropped, the curative instruction for the jury to 

focus solely on whether Lowman had possession of the fireman was 

sufficient in these circumstances. Detective Long’s testimony was not the 

kind of prejudicial testimony that is so powerful that a curative instruction 

could not neutralize the harmful effects. 

(19) The trial judge properly assessed the factors for determining 

whether a mistrial must be ordered, and concluded that a sufficient

alternative to a mistrial existed in a curative instruction, which he promptly 

issued to the jury.

 36 Id. at 42-43, 118.

37 See Justice, 947 A.2d at 1100 (“A mistrial is appropriate only when there are no 

meaningful or practical alternatives to that remedy or the ends of public justice would 

otherwise be defeated.”).

38 Pena, 856 A.2d at 551 (citation omitted); accord Copper, 85 A.3d at 695; McNair v. 

State, 990 A.2d 398, 403 (Del. 2010); Purnell v. State, 979 A.2d 1102, 1109 (Del. 2009); 

Revel v. State, 956 A.2d 23, 27 (Del. 2008). 
11

NOW, THEREFORE IT IS ORDERED that the judgment of the 

Superior Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr.

Justice