IN THE SUPREME COURT OF THE STATE OF DELAWARE

CARL R. RHOADES, § § No. 201, 2016 Defendant-Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID. No. 1408009170 STATE OF DELAWARE, § § Plaintiff-Below, § Appellee. § Submitted: November 16, 2016 Decided: November 30, 2016 Before STRINE , Chief Justice; VAUGHN , and SEITZ , Justices. ORDER This 30 th day of November, 2016, having considered the brief s and the record below, it appears to the Court that: (1) A Superior Court jury convicted Carl R. Rhoades of drug dealing heroin, aggravated possession of heroin, and relate d offenses. At trial, the State asked Officer Patrick Stock about the extent of his involvement in the case after he arrested Rhoades. Officer Stock testified that he could not remember the person he spoke with or who refused to give a statement. Rho ades objected to the testimony as violative of his Fifth Amendment right against s elf-incrimination and moved for a mistrial. The Superior Court denied the motion, reasoning that the Officer had not specifically referred to Rhoades in his testimo ny. The Superior Court also2

offered to give a curative instruction, which Rhoad es declined. On appeal, Rhoades argues that the Superior Court abused its d iscretion when it refused to grant a mistrial after Officer Stock’s testimony. He also argues, and the State agrees, that the Superior Court erred when it faile d to merge the aggravated possession and drug dealing charges. For the reaso ns set forth below, we affirm the court’s denial of a mistrial, but remand for re sentencing. (2) On August 11, 2014, Rhoades parked his car at the R oyal Farms on Old Baltimore Pike in New Castle County. Rhoades l eft his car and walked toward the store’s entrance. Usef Dickerson and Julius Wi lliams were parked in the lot in a Dodge Magnum. Dickerson was driving the Magnum a nd Williams was sitting in the passenger’s seat. Williams left the car and walked with Rhoades toward an unoccupied Buick Lacrosse. Dickerson drove away in the Magnum while Williams and Rhoades sat in the Lacrosse for severa l minutes. Rhoades returned to his car and drove away. Williams drove away in the Lacrosse. (3) Detective Eric Huston of the Delaware State Police had been conducting surveillance of the Royal Farms parking lot and found the circumstances suspicious. He radioed for back up a nd followed Williams’ car. He stopped Williams for a traffic violation and found over $500 in cash. Officers who heard Officer Huston’s radio call stopped Dickerson . As one of the officers approached him, Dickerson fled. The officers were able to catch Dickerson, and3

arrested him. They found a Ziploc bag containing multiple bags of heroin in th e grass nearby, labeled “blue stamp.” (4) At the same time, officers attempted to stop Rhoade s. Rhoades sped away from police. Officer Jeffrey Gliem saw Rhoade s throw a bag from his window and notified the recovery team of his locati on. Rhoades reached a dead end and fled on foot. Officers Gliem and Stock pur sued Rhoades and arrested him. Officer Gliem found a Ziploc bag containing 4.74 gr ams of heroin in the grassy area near where Rhoades threw the bag. Most of the heroin packets in the Ziploc bag contained a “blue stamp” marking. (5) The State charged Rhoades with drug dealing heroin, aggravated possession of heroin, conspiracy second degree, dis regarding a police officer’s signal, resisting arrest, driving a vehicle while l icense suspended or revoked, disregarding a red light, driving the wrong way on one-way street, driving at an unreasonable speed, and failure to provide proof of insurance. During trial, the prosecutor asked Officer Stock if he “did [ ] anyth ing else that night or was that the end of your involvement?” 1 Officer Stock responded, “I believe I interviewed someone, but I don’t remember which, according to m y notes I would have [to look to see what defendant I interviewed [and] who didn’t want to give
statements.” 2

1 App. to Opening Br. at 18. 2 Id

.4

(6) At sidebar, Rhoades moved for a mistrial. The Supe rior Court denied Rhoades’ motion for a mistrial because Officer Stoc k did not directly implicate Rhoades as the defendant who refused to give a stat ement, and the jury was aware of co-defendants through previous testimony. Furth er, the Superior Court offered to give a curative instruction several times. Rhoa des repeatedly refused the curative instruction and asked the Superior Court t o “leave it alone” because he did not want to draw the jury’s attention to it. (7) After a two-day trial, a Superior Court jury acquit ted Rhoades of conspiracy second degree, but found him guilty of a ll remaining charges. The State moved to sentence Rhoades as an habitual offe nder. On April 8, 2016, the Superior Court granted the motion. The Superior Co urt sentenced Rhoades to six years unsuspended Level V incarceration, followed b y decreasing levels of supervision and fines. This appeal followed. (8) Rhoades first argues that the Superior Court abused its discretion when it denied his motion for a mistrial following Officer Stock’s comment about someone refusing to give statements. This Court re views a trial court’s decision to deny a mistrial for abuse of discretion. 3 A trial judge has discretion to grant a mistrial because he “sits in the best position to d etermine the prejudicial effect of an unsolicited response by a witness on the jury.” 4 A mistrial should only be

3 Pena v. State , 856 A.2d 548, 550 (Del. 2004). 4 Id. at 551.5

granted in cases “where there is manifest necessity or the ends of public justice would be otherwise defeated.” 5 This Court will uphold a trial judge’s decision t o deny a mistrial unless the decision was based on “u nreasonable or capricious grounds.” 6 (9) “The right to remain silent is derived from the Fif th Amendment’s privilege against self-incrimination.” 7 The State is not permitted to comment on a defendant’s assertion of the right to remain silent

. 8 But not “every reference to the exercise of the right to remain silent mandates rev ersal.” 9 To determine whether an unsolicited comment about the defendant’s assertion of the right to remain silent requires a mistrial, this court looks to the four f actor test set forth in Pena v.
State

. 10 The factors include: (1) the nature and frequency of the conduct or comments; (2) the likelihood of resulting prejudice ; (3) the closeness of the case and (4) the sufficiency of the trial judge’s effort s to mitigate any prejudice in determining whether a witness’s conduct was so prej udicial as to warrant a mistrial. 11 (10) Here, the Pena factors do not weigh in favor of a mistrial. Off icer Stock’s comment was isolated, unsolicited, and did not directly implicate Rhoades.

5 Id. at 552 (internal quotations omitted). 6 Revel v. State , 956 A.2d 23, 27 (Del. 2008). 7 Id. (citing Miranda v. Arizona , 384 U.S. 436, 442 (1966)). 8 Shantz v. State , 344 A.2d 245, 246-47 (Del. 1975) (citing Griffin v. California , 380 U.S. 609 (1965)). 9 Shantz , 344 A.2d at 246-47 (citing People v. Key , 522 P.2d 719, 721 (Colo. 1974)). 10 856 A.2d at 552. 11 Id. at 551-52.6

Second, the potential prejudice to Rhoades was mini mal. Officer Stock did not specifically state that Rhoades refused to give a s tatement, and the jury was aware through previous testimony that there were co-defen dants. Further, Rhoades chose not to testify at trial. Thus, “it was obvious tha t he was asserting his right to remain silent about [the] allegations.” 12 (11) Third, this was not a close case. Officers saw Rho ades, Williams, and Dickerson acting suspiciously outside of Royal Farm s. When officers stopped Williams, they recovered over $500 in cash. The of ficers also saw Rhoades throw a bundle of heroin out of his car while fleeing fro m the officers. Most of the bags were marked “blue stamp.” The same marking was loc ated on heroin found in the bag that Dickerson threw out of his window. The St ate also presented evidence that Rhoades fled from police. The jury could reas onably infer Rhoades’ guilt from these actions. 13 Finally, Rhoades refused the trial judge’s curati ve instruction because he did not want to draw the jury’s attentio n to the comment. Because Rhoades declined the curative instruction, this fac tor weighs against a mistrial. 14

12 Revel , 956 A.2d at 27. 13 See Robertson v. State , 41 A.3d 406, 409-410 (Del. 2012) (explaining that evidence of evasion of arrest and flight “may be considered by [the jur y] in light of all other facts proved. Whether or not such evidence shows consciousness of guilt and the significance to be attached to such evidence are matters solely for [the jury’s] determ ination.”). 14 See Snipes v. State , 2015 WL 1119505, at *3-4 (Del. March 12, 2015) (T able) (stating that a defendant “cannot challenge the reasonableness of h is defense counsel’s strategy” on direct appeal and the fourth Pena factor weighs in favor of the State when the defen se refuses a curative instruction)).7

The Superior Court did not abuse its discretion whe n it denied Rhoades’ motion for a mistrial. (12) Rhoades next argues that the Superior Court erred w hen it failed to merge the drug dealing and aggravated possession of heroin charges. The State agrees that these charges should have merged. Unde r 16 Del. C. § 4766 and principles of Double Jeopardy, aggravated possessio n is a lesser included offense of drug dealing, requiring that the two crimes be m erged for sentencing. 15 Accordingly, we remand to the Superior Court for re sentencing. NOW, THEREFORE, IT IS HEREBY ORDERED that the judgm ent of the Superior Court is AFFIRMED in part, REVERSED in par t, and REMANDED to the Superior Court for further proceedings consiste nt with this Order. Jurisdiction is not retained.
BY THE COURT:
/s/ Collins J. Seitz, Jr. Justice

15 16 Del. C. § 4766. (“[A] defendant may be convicted under any 1 of the following respective sections . . . (1) the lesser-included offenses und er § 4752 [drug dealing] are §§ 4753 [aggravated possession] . . . .”) ; see also Blockburger v. United States , 284 U.S. 299, 304 (1932) (where same act or transaction violates two distinct statutes “ the test to be applied to determine whether there are two offenses or only one, is whether each provi sion requires proof of a fact which the other does not.”).