CUMMINGS v. STATE, 846 A.2d 238 (Del. 2004)

No. 401, 2003.Supreme Court of Delaware.Submitted: March 23, 2004.
Decided: March 25, 2004.

Superior Court of the State of Delaware in and for New Castle County, Cr. ID. No. 0211015387.

Before VEASEY, Chief Justice, HOLLAND, BERGER, STEELE, and JACOBS, Justices, constituting the Court en banc.

ORDER
MYRON T. STEELE, Justice.

This 25th day of March 2004, upon consideration of the briefs of the parties, it appears to the Court as follows:

1. On May 29, 2003, a New Castle County jury convicted Appellant Jacqueline Cummings of felony theft. A Superior Court judge sentenced her to two years at Level IV home confinement suspended after six months for probation and approximately $4,800 in restitution.

2. On September 19, 2002, Appellant Jacqueline Cummings visited the home of her friend William Higgins, who lived with his older sister, Carol Malone. Higgins was in his mid-thirties, mildly retarded but employed and highly functional in daily living tasks. In early October, Malone discovered valuable jewelry missing. A police investigator determined that Cummings pawned similarly described jewelry on September 19, 2002.

3. Cummings appeals her conviction, contending that the trial judge excluded relevant evidence that Malone had her brother arrested just before his in-court testimony. Cummings focused her defense on the theory that Higgins had stolen the jewelry from his sister and then gave it to Cummings as a gift. Higgins denied stealing his sister’s jewelry and also denied that he had pawned a missing Sony Playstation 2 belonging to his sister. At trial, Higgins admitted that he had lied in earlier testimony about pawning the Playstation 2. Cummings later sought to introduce the fact that Higgins had been arrested at the direction of Malone after an altercation at their house.[1] We review a trial judge’s ruling on the admissibility of evidence for abuse of discretion.[2] The trial judge’s ruling that Malone’s accusation about her brother that resulted in his arrest was irrelevant was not an abuse of discretion. Neither the arrest nor Malone’s motive have any probative value bearing on the issues in this case.

4. Cummings next asserts that the trial judge violated her Constitutional right to present evidence by barring testimony from her 12-year-old son about his recollection of the gifts given by Higgins to his mother. D.R.E. 403 states that, although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, waste of time or needless presentation of evidence. Here, the trial judge, after voir dire of the son, found that the testimony would be irrelevant and cumulative.[3] The record supports the trial judge’s action refusing to admit this evidence.

5. Finally, Cummings contends that the prosecutor made remarks during trial that deprived Cummings of a fair trial. During cross-examination, Cummings’ mother suggested that her daughter and Higgins had a “mixed up” relationship and that Higgins was a “lonely man.” The Prosecutor remarked “Sounds that way, sounds like somebody is being manipulated.” Because there was no objection by defense counsel, we review for plain error. For us to find plain error, the remark must have been so clearly prejudicial to Cummings’ substantial rights that they deprived her of a fair trial. Nothing in the record supports a finding that Cummings was denied a fair trial. Ample, objective evidence in the record supported the State’s contention that Cummings manipulated Higgins.[4]

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.