VEASEY, Chief Justice.
In this case we reaffirm the principle that it is improper for prosecutors to argue that the jury may acquit the defendant only if the jury finds that the State’s witnesses are “lying.”
The trial court here
committed plain error by failing to intervene sua sponte and take appropriate action to cure the effect of this patently improper prosecutorial argument.
We decline to address a further aspect of this case that was raised for the first time at oral argument in this Court. That issue is whether the defendant may now, on this record, raise the bar of double jeopardy, thus preventing a retrial, on the ground that the prosecutorial misconduct was so egregious that it was plainly designed to goad the defendant into moving for a mistrial in order that the State could improve its chances of conviction on a retrial. Although in certain circumstances the double jeopardy clauses of the Fifth Amendment of the Federal constitution
and Article I, Section 8 of the Delaware constitution
may be available as a remedy for egregious prosecutorial misconduct,
the issue may only arise if the prosecution seeks a retrial. Thus, the issue is not ripe for consideration in this case and we decline to address it at this time.
Accordingly, we reverse the judgment below and vacate the defendant’s sentence. We remand this case to the trial court for proceedings consistent with this Opinion.
Facts
Between 7:85 a.m. and 7:40 a.m. on November 1, 1999, a man approached James Bibbins as Bibbins rode his bicycle on his way to work on North Race Street in Georgetown, Delaware. Bibbins stopped his bicycle and the man told Bibbins that he had wanted to meet him so he could beat him up.
The man then said that Bibbins had “disrespected” him during a phone conversation. Bibbins responded: “I don’t see how I disrespected you, I didn’t even talk to you.” When Bibbins resumed his commute to work, the man threw a rock at him. The man then picked up a piece of pipe, ran after Bibbins, and struck him in the head with the pipe. The blow broke several bones in Bibbins’ head and tore the optic nerve in his right eye. The assailant then ran away around a street corner.
A police investigation led to the indictment of Alonzo Morris, Jr. for first-degree assault and possession of a deadly weapon during the commission of a felony. At trial, the State produced two eyewitnesses who identified Morris as the person who attacked Bibbins. But Bibbins was unable to identify Morris as his assailant. Morris presented an alibi defense by testifying that, on the morning of the assault, he left his girlfriend’s apartment between 7:45 a.m. and 8:00 a.m., stopped at the post office and arrived at his residence ten or fifteen minutes later. Morris’ testimony was corroborated, at least in part, by the testimony of his girlfriend and that of Sergeant Ronald Brock, who testified that he saw Morris near the post office at about 8:10 a.m. on the morning of the assault.
The jury found Morris guilty of both crimes charged. The Superior Court found that the convictions violated Morris’ probation. The court sentenced Morris to ten years in prison for the assault conviction, twenty years in prison for the weap
ons conviction, and five years and three months in prison for the violation of probation. Morris appeals his sentence on various grounds, including prosecutorial misconduct.
Morris’ Claim of Prosecutorial Misconduct
Morris argues that the prosecutor made several improper statements during closing argument that undermined the fairness of his trial. Because defense counsel did not object at trial to the prosecutor’s statements and the Superior Court did not intervene sua sponte, we review for plain error.
First, Morris contends that the prosecutor misrepresented the testimony of Officer Barlow concerning the time of Barlow’s arrival at Morris’ residence on Douglas Street. On direct examination, Barlow testified that about thirty or forty minutes passed between the time he was “there with Mr. Bibbins” and the time he arrived at Douglas Street. He then agreed that his estimate placed him at Morris’ residence at 8:10 or 8:20 a.m. On cross-examination, Barlow conceded that he may have arrived at Morris’ residence at 8:30 or 8:45 a.m., but he “couldn’t verify that for certain.” On re-direct, the prosecutor asked Barlow:
Q: Officer Barlow, I just want to clarify this thirty-or forty-minute time period that you estimated. Are you estimating that it was thirty or forty minutes from the time you were actually standing there by Mr. Bibbins’ side until the time you were standing at Douglas Street? Or are you saying it was thirty or forty minutes from the time that you had cleared and you were at the Georgetown station until the time you were at Douglas Street? Which would it be?
A: I would say that it was thirty or forty minutes from the time that I was with Mr. Bibbins to the time at Douglas Street. It would seem to me ... that I went from that area back to the station, ran computer checks, then was told by the secretaries that there might be an incident up on Douglas Street, and then left from the police station and went to that. So it was a chain of events. I don’t believe could have been more than forty minutes in total.
During closing argument the prosecutor summarized this testimony as follows:
[Barlow] says it was about 30 to 40 minutes afterwards that, you know, between the time he was there by Mr. Bibbins’ side and the time he was at Douglas Street talking to those other parties about the complaint, is when he saw J.R. Morris there. Well, that puts him there probably about 8:10 or 8:15.
Morris argues that this statement is improper because Barlow clarified on re-direct that the “chain of events ... began when [Barlow] was
last
with Bibbins (about 8:00 a.m.), and estimated he arrived at Douglas Street 40 minutes later.”
Morris’ argument mischaracterizes Barlow’s testimony. The prosecutor asked Barlow to choose one of two options as the starting point of the chain of events: (1) “the time you were actually standing there by Mr. Bibbins’ side” or (2) “the time that you had cleared” the assault scene. Barlow chose the former option and thus indicated that he was at Morris’ residence at approximately 8:15 a.m., thirty minutes after he arrived on the scene of the assault on Bibbins. Because this testimony supports the prosecutor’s time estimate, the prosecutor did not materially misrepresent Barlow’s testimony during closing argument.
Morris next points to the prosecutor’s characterization of Bibbins’ failure to identify Morris as his assailant during the trial. On direct examination, the prosecutor asked Bibbins if he saw “the person who hit you with the pipe.” Bibbins responded: “No, I don’t see him.” The State then presented expert testimony that, as a result of head trauma from the assault and unrelated glaucoma, Bibbins could not see out of his right eye and could not identify with his left eye facial features that are more than twelve feet away. During the State’s summation, the prosecutor stated:
[Bibbins] took that stand, he was asked if he could identify the person who hit him. He looked around out of his one eye, he stood up, and he looked around and he just couldn’t. Well, have confidence in the fact — let that relate to Mr. Bibbins’ credibility, that Mr. Bibbins isn’t going to stand up there with his hand on the Bible and tell you a he. He couldn’t make out the face.
During rebuttal summation, the prosecutor repeated that Bibbins “just couldn’t see.”
Although the prosecutor’s statement does not accurately reflect Bibbins’ unqualified testimony (“No, I don’t see him.”), the statement does find some support in the testimony of the State’s expert. The prosecutor could legitimately ask the jury to infer from the expert’s testimony that Bibbins’ eyesight was sufficiently poor that he could not identify Morris, who was seated about twenty-four feet away at the defense table.
Although the prosecutor did not explicitly disclose that his statement was based on an inference drawn from the expert’s testimony, the record does support the prosecutor’s inference and hence the statement was not improper.
Second, Morris argues that, during the State’s rebuttal summation, the prosecutor referred to facts not in evidence relating to whether the view of a witness was blocked. Sergeant Brock testified that, at about 8:10 a.m., he saw and waved to Morris, who was standing on a side street near the post office, as Brock drove by. The prosecutor sought to impeach Brock’s testimony by contending that a two-story house would have blocked Brock’s view of Morris as Brock approached the side street.
During cross-examination, the prosecutor, on several occasions, asked Brock about the house, but Brock did not agree that the house exists or that it blocked his view of Morris on the
morning of the assault. Brock also testified that he did not notice this house. There was no other testimony about the house blocking Brock’s view. Nevertheless, during rebuttal the prosecutor stated:
I guess this whole case should hinge upon this Sergeant Brock coming up West or East Market Street driving a van.... He goes past the side street there that he estimates to be 12-feet wide. There is a big church on one corner and
there is a big house on the other comer blacking his view.
So you can’t see whose [sic] coming up the street before you get to it. You can’t look and see who’s coming up the street after you get past him. You’ve got a window of 12 feet, which you’re going to cover in less than a second. He looks down there and says, Alonzo, Alonzo Morris. He doesn’t know whether he got dark clothing on, light clothing, whether he got glasses on. Their case certainly doesn’t hinge on that testimony, ladies and gentlemen.
The State argues that a prosecutor may properly draw “legitimate inferences of the [defendant’s] guilt that flow from the evidence.”
This is correct in the abstract, but, the prosecutor may not misrepresent the evidence presented at trial.
In the present case, a review of the trial transcript indicates that the prosecutor’s assertion concerning the “big house on the other corner blocking [Brock’s] view” has no evidentiary support at all. Although Brock testified that there is a fine of houses on the side street, he testified that he did not notice a big house on the corner that might block his view down the side street. Because there is no other evidence that the two-story house exists, the prosecutor’s assertion that such a house exists and was “blocking his view” was an improper misrepresentation of the evidence. We need not decide, however, whether this misstatement standing alone would have constituted plain error because there was other prosecutorial misconduct that constitutes plain error requiring reversal.
Morris argues that the prosecutor improperly distorted the State’s burden of proof in his closing argument:
How many liars are we going to have to have in this case for [Morris] to be not guilty? Well, you’d better be satisfied that James Bibbins is lying when he says he knows who did this to him and that it’s J.R. It’s J.R. Copes.
You’d better be satisfied that James Bynum, who’s known him since he was a baby boy, that he’s lying, when there has been no reason to think that James Bynum
has any type of motive to lie against J.R. Morris....
You’d better be satisfied that Rick Hughes is lying when he identifies [Morris] as the one who hit Mr. Bibbins. You’d better be satisfied that Lenora Middleton is lying. You’d better be satisfied that Joyce Bailey is lying. For [Morris] to be not guilty, there has to be all of these amazing coincidences and all these liars....
This is a patently improper argument. In
Fensterer v.
State,
we held that a prosecutor may not imply that the jury has to find that the State’s witnesses committed perjury, in order to acquit the defendant.
In finding the prosecutor’s remarks improper, we observed that “[t]he jury is not required to choose between the State’s and the defendant’s version of the facts” and that the defendant therefore has “no affirmative burden to disprove the testimony of the [State’s witnesses].”
In the present case, the State concedes that the prosecutor’s lengthy argument on this point was “improper and unnecessary.”
Indeed the prosecutor’s improper argument that the jury may acquit Morris only if the State’s witnesses were lying was egregious and patently improper under established case law. It was inexcusable in fight of
Fensterer
and, in fact, was significantly more severe than the brief statement by the prosecutor in Fensterer,
We must determine next whether this prosecutorial misconduct was plain error and requires reversal of Morris’ sentence and vacation of his conviction. To constitute plain error, “credibility must be a central issue in a close case” and the State’s improper statements must “be so clear and defense counsel’s failure to object so inexcusable that a trial judge ... has no reasonable alternative other than to intervene.”
This case is distinguishable from
Trump v.
State
where we found no reversible error. Here, unlike
Trump,
the improper statements are, indeed, “so clear and defense counsel’s failure to object so inexcusable that [the trial judge had] ... no reasonable alternative other than to intervene.”
We find that the Superior Court plainly erred by not intervening sua sponte after the prosecutor’s improper argument. Thus, the first element of plain error, clear prosecutorial misconduct, has been met. We need not decide what precise remedy the trial court should have applied here had it intervened.
We find that the prosecutorial misconduct also meets the second main element of plain error — that the misconduct attacked witness credibility which was indisputably a central issue. The combined effect of the egregious prosecutorial misconduct and the centrality of credibility compel the conclusion that the plain error standard has been met.
Whether the Prosecutor’s Misconduct Creates a Bar to a Retrial of Morris Under the Double Jeopardy Clause
At oral argument on appeal in this Court, Morris claimed for the first time that, if we reverse his sentence and remand his case to the Superior Court, we must find on this appeal that a retrial is barred. Morris claims that the prosecutor intended to goad the defendant into moving for a mistrial and that we should apply the double jeopardy bar even though he did not move for a mistrial, citing the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
and Article I, § 8 of the Delaware constitution
and
Oregon v. Kennedy,
among other authorities. We asked for supplemental memoranda on this point.
Morris and the State agree that a properly presented claim that retrial is barred by double jeopardy cannot be raised unless and until the State elects to reprosecute.
Accordingly, the issue is not ripe and we decline to pass upon the question. Whether or not the State will seek a retrial and, if so, how the double jeopardy issue will be presented to the Superior Court and how it will rule are all, of course, unknown future events. As interesting as this issue is, we may never have to decide it. If we were to speak to the issue in this Opinion we would be expressing an advisory opinion, and that is not our proper function.
Morris’ Other Claims on Appeal
We have held that the prosecutorial misconduct alone warrants reversal of Morris’
sentence. In the interest of justice, however, we will address Morris’ other claims made on appeal to assist the parties and the trial court in the event of a retrial.
In addition to his claim of prosecutorial misconduct, Morris asserts that the Superior Court committed reversible error in the following ways: (1) by finding that the jury had a rational basis on which to conclude that Morris assaulted Bibbins; (2) by admitting hearsay testimony regarding Bibbins’ statements after the assault; and (3) by failing to balance the probative value of Morris’ prior convictions for burglary and kidnapping against the potential for unfair prejudice under D.R.E. 609.
A. Whether the Jury Had a Rational Basis for Finding Morris Guilty
Morris argues that the Superior Court erred in finding that the jury had a rational basis on which to conclude that Morris assaulted Bibbins. Morris contends that the State did not produce sufficient competent evidence to prove beyond a reasonable doubt that he was the person who attacked Bibbins.
Morris preserved his sufficien-ey-of-the-evidence challenge for appeal by presenting a timely motion to acquit under Superior Court Criminal Rule 29 in the trial court.
The Superior Court’s decision to grant or deny a motion to acquit is subject to de novo review by this Court. As a general rule, a conviction must be sustained if “any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the defendant guilty beyond a reasonable doubt.”
In denying Morris’ motion to acquit, the trial court found that “there was almost overwhelming evidence of guilt.” The State points to several key facts that provide a rational basis on which the jury could convict Morris for the attack.
First, although Bibbins did not make an in-court identification of Morris, two eyewitnesses, James Bynum and Richard Hughes, testified at trial that Morris was the assailant.
Second, immediately after the attack (and at trial), Bibbins identified the assailant as J.R. or Jerrold Copes.
The State also presented evidence that Morris has been known in some situations as “J.R. Copes.” Third, Bibbins testified that the assault was somehow related to a telephone call that took place while he was staying with Lenora Middleton and the attack involved Middleton’s then-boyfriend. The State also presented evidence that Morris and Middleton were dating in 1998 and early 1999. Finally, Middleton testified that Morris was upset with Bib-bins after Morris discovered that Bibbins had sexually assaulted Middleton.
Taken together, this evidence supports a reasonable inference that Morris attacked Bibbins, that Bibbins identified Morris by another name (“J.R. Copes”), and that Morris had a reason to attack Bibbins. This evidence was, sufficient to support Morris’ conviction.
B. Whether the Superior Court Plainly Erred by Admittiny Hearsay Testimony Concerning
Bibbins’
Statements After the Assault
At trial, the State presented the testimony of several eyewitnesses who spoke to Bibbins immediately after the assault. These witnesses testified about Bibbins’ descriptions of the assailant and about his theory on the reason for the attack. For example, Rick Hughes testified that Bib-bins told him that someone attacked him “because [the assailant’s] girlfriend was staying with me. He called me up and cussed me out on the phone and I hung up on him.” Alan Hill testified that Bibbins’ told him that “some guy named J.R., they had a dispute over some girl, somebody disrespecting somebody....” Georgie McCrea also testified that Bibbins’ mentioned that the girlfriend’s name was Nora.
Although trial counsel did not object to these statements, Morris now argues the statements are hearsay and do not fit within a recognized exception.
The State contends that the hearsay statements were admissible as a present sense impression under D.R.E. 808G).
Where a party fails to object to the admission of evidence at trial, the issue is deemed waived unless the trial court committed plain error in admitting the evidence.
As an initial matter, these out-of-court statements are hearsay because the State has offered the testimony to prove the truth of the matter asserted in the statements.
The statements are therefore inadmissible unless they fall within a recognized exception to the hearsay rule.
In this case, the two most relevant hearsay exceptions are for present sense impressions and excited utterances. The present sense impression exception covers “statement[s] describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”
Although the statements do not have to “be precisely contemporaneous with the triggering event[, they] must be in response to it and occur within a short time after the stimulus.”
Only those statements in which Bibbins describes the circumstances of the attack are admissible under the present sense impression exception. Bibbins’ statements concerning his telephone con
versation with the assailant and the assailant’s relationship with “Nora,” by contrast, do not describe or explain the recent event (that is, the attack) or Bibbins’ condition (for example, his injuries). As a consequence these statements are not admissible under D.R.E. 808(1) as a present sense impression.
Bibbins’ statements about these earlier events are admissible under D.R.E. 803(2) as excited utterances. Under 803(2), a statement is admissible if it “relat[es] to a startling event or condition” and is “made while the declarant is under the stress of excitement caused by the event or condition.” In
Gannon v. State,
we held that this exception requires the proponent to establish that: “(1) the excitement of the declarant [was] precipitated by an event; (2) the statement being offered as evidence [was] made during the time period while the excitement of the event was continuing; and (3) the statement must be related to the startling event.”
In the present case, Bibbins’ made the contested statements immediately after a “startling event” — the assault. Moreover, the statements relate to the attack because they identify the assailant and identify a possible motive
for the
assault. There is no explicit testimony that Bibbins was “excited,” but it seems clear that the statements were “induced by the shock of the event.”
Morris argues that the statements were not “excited utterances” because Bibbins made the statements in response to questions.
As Morris points out, the witnesses asked Bibbins broad questions about the attack when they first approached him.
Bibbins’ answers were not prompted by leading questions and were often unresponsive. Although one could argue that responses to questions can never be entirely “spontaneous,”
we do not think that the admission of these statements under the excited utterance exception constitutes plain error. Morris can renew his objection if there is another trial and this evidence is offered by the State.
C. Whether the Superior CouH Abused its Discretion by Failing to Perform the Balancing Test of D.R.E. 609 Regarding Morris’ Prior Felony Convictions
At trial, Morris testified that he had been convicted of three felonies. The State sought to cross-examine Morris on the nature of these felonies, but defense counsel objected because one of the convictions was for assault. As a compromise, defense counsel agreed to permit cross-examination concerning the burglary and kidnapping convictions, and the prosecutor agreed not to cross-examine on the assault conviction. On appeal, Morris argues that the Court was still obligated to undertake the balancing analysis described in D.R.E. 609.
The State argues that Morris
waived his right to the balancing analysis by agreeing to the compromise.
Before we reach this waiver question, however, we must establish whether the trial court was obligated to engage in the balancing test with respect to the kidnapping and burglary convictions.
The trial court’s decision to admit evidence of prior felony convictions is subject to review in this Court for an abuse of discretion.
Under Rule 609, the trial court must first determine whether the conviction involved a felony or whether the conviction involved dishonesty or false statement.
Rule 609(a)(1) then requires the trial court to balance the probative value and prejudice of admitting prior felony conviction, whereas Rule 609(a)(2) permits the admission of prior convictions of crimes involving dishonesty without applying the balancing test of Rule 609.
In
Archie v. State,
we held that, on cross-examination seeking to impeach the defendant, the State may “inquire into the type of crime and the date and place of the convictions.”
But, as Morris correctly points out, we assumed that admission of this evidence would be subject to the limitations described in Rule 609, including the requirement that the trial court weigh the prejudicial effects of admitting convictions for crimes not involving dishonesty.
In the present case, the State sought to impeach Morris by cross-examining him on his burglary and kidnapping convictions. There is some dispute whether the underlying offense on the burglary conviction was kidnapping or theft.
Although “prior convictions for robbery, burglary and theft clearly have been determined by this Court to be crimes involving dishonest conduct,” it is unclear (1) whether kidnapping is a crime involving dishonesty and (2) whether a burglary conviction based on kidnapping, as distinct from robbery or theft, is a crime involving dishonesty or false statement.
This Court has defined “dishonesty” to mean “the act or practice of lying, deceiving, cheating, stealing or defrauding.”
Although this Court has not addressed whether kidnapping is a crime involving dishonesty, the Iowa Supreme Court has held that kidnapping does not involve “dishonesty or false statement.”
Similarly, we find that D.R.E. 609 required the Supe
rior Court to apply the balancing test to Morris’ kidnapping conviction because it did not involve dishonest conduct.
The trial transcript suggests that Morris agreed to waive the application of balancing test by agreeing to permit cross-examination on the kidnapping conviction in exchange for the State’s promise not to discuss the assault conviction. But, this agreement was based on the trial court’s statement that the State was entitled to question Morris as to “what the felonies were, [and] what courts they were in.” The court did not indicate that admission of this evidence was subject to the Rule 609 balancing test. The Superior Court thus misstated the law set forth in
Archie
and led Morris’ trial counsel to agree to the arrangement proposed by the State.
As a consequence, we do not think that this waiver should bind Morris in this Court.
Although the Superior Court abused its discretion by admitting Morris’ kidnapping conviction without performing the balancing test in Rule 609, we conclude that the error did not seriously prejudice the defense and therefore is not an independent ground for reversal. Morris’ credibility was undoubtedly at issue because, as noted earlier, only his testimony supported his alibi defense. But, the testimony of two eyewitnesses and the other circumstantial evidence of identification and motive presented at trial make it unlikely that the kidnapping conviction tainted the jury’s deliberations. In the event of a retrial, we assume this issue will become moot unless the prosecutor should seek to use the kidnapping conviction again.
Conclusion
The prosecutor at Morris’ trial improperly commented that the jury could not acquit Morris unless the jury found that the State’s witnesses were lying. We reaffirm that such egregious prosecutorial misconduct is reversible error, and it is plain error in a case like this where credibility of witnesses is central. Accordingly, we reverse Morris’ sentence and vacate his conviction. We remand this ease to the Superior Court for proceedings consistent with this Opinion.