Pena v. State, 856 A.2d 548 (Del. 2004). · Go Syfert
Pena v. State, 856 A.2d 548 (Del. 2004). Cases Citing This Book View Copy Cite
87 citation events (87 in the last 25 years) across 3 distinct courts.
Strongest positive: Gustave v. State (del, 2025-07-29)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Under fire: who is questioning this case
Citations from separate opinions of courts that could overrule this case. This is a warning signal, not a treatment change. The flag color above is unaffected.
Concurrence Phillips v. State (2017)
“Ct. Sept. 3, 2015). . 856 A.2d 548 (Del. 2004). .”
Top citers, strongest first. 33 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Gustave v. State
Del. · 2025 · signal: see also · quote attribution · 1 verbatim quote · confidence high
prompt jury instructions are presumed to cure error and adequately direct the jury to disregard improper statements, even when the error references extraneous offenses.
discussed Cited as authority (rule) State v. Taylor (2×)
Del. Super. Ct. · 2023 · confidence medium
And 12 Revel v. State, 956 A.2d 23, 27 (Del. 2008) (citing Brown v. State, 897 A.2d 748, 752 (Del. 2006)) (citations omitted). 13 Flowers v. State, 858 A.2d 328 , 334–35 (Del. 2004) (citing Ashley v. State, 798 A.2d 1019, 1022 (Del. 2002)). 14 Pena v. State, 856 A.2d 548, 552 (Del. 2004) (citing Davis v. State, 725 A.2d 441 (Del. 1999) (quoting Steckel v. State, 711 A.2d 5, 11 (Del. 1998)). 15 Flowers, 858 A.2d at 335 (citations omitted). 16 Revel, 956 A.2d at 27 (quoting Pena, 856 A.2d at 551 ) (citations omitted). 17 856 A.2d 548 (Del. 2004). 18 Pena, 856 A.2d at 550-51 (citations omitted)…
discussed Cited as authority (rule) Envolve Pharmacy Solutions, Inc. v. Rite Aid Hdqtrs. Corp.
Del. Super. Ct. · 2023 · confidence medium
Centene advances two final grounds for a new trial: (1) Rite Aid’s counsel used the Court’s March 2023 summary judgment Memorandum Opinion and Order “as substantive evidence”; and (2) Rite Aid’s counsel, during closing argument, 209 See DRE 403 (2023). 210 Centene Motion at 30. 211 May 22 Trial Tr. at 145. 212 Centene Motion at 30. 213 Estate of Swan v. Balan, 956 A.2d 1222, 1226 (Del. 2008) (citing Dunn v. Riley, 864 A.2d 905, 909 (Del. 2004)); Revel v. State, 956 A.2d 23, 30 (Del. 2008) (“We have held that an error can normally be cured by the use of a curative instruction to the…
discussed Cited as authority (rule) Lloyd v. State
Del. · 2021 · confidence medium
In Pena, this Court set forth a 75 Id. 76 Id. at A403-04. 77 Id. at A1276. 78 Id. at A1458 (Jury Instructions). 79 856 A.2d 548, 550-51 (Del. 2004) (citing Griffith v. State, 2003 WL 1987915 , at *4 (Del. 2003)). 80 Opening Br. at 25 n.10. 81 Chambers v. State, 930 A.2d 904, 909 (Del. 2007). 19 four-factor test for appellate review of an alleged prejudicial remark by a witness: (1) the nature and frequency of the offending comment; (2) the likelihood of resulting prejudice; (3) the closeness of the case; and (4) the adequacy of the judge’s actions to mitigate any potential prejudice.82 Here,…
discussed Cited as authority (rule) Trala v. State
Del. · 2020 · confidence medium
Juries are presumed to follow the trial 88 App. to Op. Br. at A79–81 (Additional Jury Instructions). 89 Baker, 906 A.2d at 148 . 90 Id. 91 Revel v. State, 956 A.2d 23, 27 (Del. 2008) (quoting Pena v. State, 856 A.2d 548, 551 (Del. 2004)); see also Galindez v. State, 220 A.3d 912 , 2019 WL 518842 , at *3 (Del.
discussed Cited as authority (rule) State v. Anderson
Del. Super. Ct. · 2020 · confidence medium
A52-74, 81-113, 116-117. °> Pena v. State, 856 A.2d 548, 550-51 (Del. 2004), citing Taylor v. State, 690 A.2d 933, 935 (Del. 1997). °° Id., citing Griffith v. State, No. 570,2002, 2003 WL 1987915 , at *4 (Del.2003); Taylor, 690 A.2d at 935 (“First, the Court examines the nature, persistency, and frequency of the outburst.
discussed Cited as authority (rule) State v. Payne
Del. Super. Ct. · 2017 · confidence medium
Did not represent me as he should on his cross examining Ground 3 Fail to properly identify me (suspect) The victim never Identified me in trial. 4Pena v. Slale, 856 A.2d 548, 550 (Del.2004) (“Pena”). 5Payne v. State, supra at *2. 6Defendant’s numbering system is confusing; the Court sets forth defendant’s various arguments and applies its own numbering system.
discussed Cited as authority (rule) Phillips v. State (2×)
Del. · 2017 · confidence medium
She was told not to form an opinion from the start, and has 31 Revel v. State, 956 A.2d 23, 27 (Del. 2008) (citing Pena v. State, 856 A.2d 548, 551-52 (Del. 2004). 32 Id. at 30. 33 Id. at 27 (quoting Brown v. State, 897 A.2d 748, 752 (Del. 2006)).
discussed Cited as authority (rule) Phillips v. State (2×)
Del. · 2017 · confidence medium
Revel v. State, 956 A.2d 23, 27 (Del. 2008) (citing Pena v. State, 856 A.2d 548, 551-52 (Del. 2004). 52 .
discussed Cited as authority (rule) Rhoades v. State (2×)
Del. · 2016 · confidence medium
This Court reviews 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 determine 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 . 4 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 to deny a mistrial unless the decision was based on “unreasonable o…
discussed Cited as authority (rule) Boykin v. State
Del. · 2016 · confidence medium
We therefore review only for plain error.12 A mistrial is required only where there is manifest necessity or the ends of public justice would be otherwise defeated.”13 In Pena v. State, this Court set forth a four-part test to determine whether a witness’s unsolicited response requires a mistrial: (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 efforts to mitigate any prejudice in determining whether a witness’s conduct was so prejudicial as to warrant a mistr…
discussed Cited as authority (rule) Alexopoulos v. State of Delaware (2×)
Del. Super. Ct. · 2016 · confidence medium
But Alexopoulos declined the offer of a curative jury instruction because he did not want to "emphasize the problem." Per Alexopoulos’s request, the trial judge gave no curative instruction.zz (l l) Whether to grant a mistrial after an unsolicited response by a witness rests within the trial judge’s sound discretion” because "the [ ] Court [of Common Pleas] is in a better position to measure the risk of prejudice from events at trial."m A mistrial is required only where there is "manifest necessity or the ends of public 2° 1a ar 85-88 (chihg Ravaz v. s»a»a, 956 A.za 23 (Del. 2008), wh…
discussed Cited as authority (rule) Alexopoulos v. State (2×)
Del. Super. Ct. · 2016 · confidence medium
But Alexopoulos declined the offer of a curative jury instruction because he did not want to "emphasize the problem." Per Alexopoulos’s request, the trial judge gave no curative instruction.zz (l l) Whether to grant a mistrial after an unsolicited response by a witness rests within the trial judge’s sound discretion” because "the [ ] Court [of Common Pleas] is in a better position to measure the risk of prejudice from events at trial."m A mistrial is required only where there is "manifest necessity or the ends of public 2° 1a ar 85-88 (chihg Ravaz v. s»a»a, 956 A.za 23 (Del. 2008), wh…
discussed Cited as authority (rule) Goode v. State
Del. · 2016 · confidence medium
Revel v. State, 956 A.2d 23, 27 (Del.2008) ("A trial judge’s prompt curative instructions 'are presumed to cure error and adequately direct the jury to disregard improper statements.’ ” (quoting Pena v. State, 856 A.2d 548, 551 (Del.2004))). 38 .
cited Cited as authority (rule) Williams v. State
Del. · 2015 · confidence medium
Police found the 7 Pena v. State, 856 A.2d 548, 550 (Del. 2004). 3 1d. at 550-51. revolver where Williams had been standing before being taken into custody.
examined Cited as authority (rule) Lowman v. State (3×)
Del. · 2015 · confidence medium
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 Joh…
discussed Cited as authority (rule) Snipes v. State
Del. · 2015 · confidence medium
In Bailey, we found a mistrial was warranted after three witnesses mentioned that the defendant had been previously tried for murder, the offense for which he was currently being tried.7 However, as the trial court noted in this case, Bailey can be distinguished because three witnesses testified in Bailey as Opposed to one witness in this case, and the third :Pena v. State, 856 A.2d 548, 550-51 (Del. 2004).
cited Cited as authority (rule) Copper v. State
Del. · 2014 · confidence medium
Revel v. State, 956 A.2d 23, 27 (Del.2008) (quoting Pena v. State, 856 A.2d 548, 551 (Del.2004)). .
cited Cited as authority (rule) Drummond v. State
Del. · 2012 · confidence medium
Pena v. State, 856 A.2d 548, 550 (Del.2004); see also Dickens v. State, 2 A.3d 73 , 2010 WL 2889501, at *4 (Del.
discussed Cited as authority (rule) Gomez v. State
Del. · 2011 · confidence medium
McNair, 990 A.2d at 403 ; Purnell, 979 A.2d at 1108-09 ; Smith v. State, 963 A.2d 719, 722-23 (Del.2008); Revel v. State, 956 A.2d 23, 27 (Del.2008); Justice v. State, 947 A.2d 1097, 1100 (Del.2008); Hendricks v. State, 871 A.2d 1118, 1122-23 (Del.2005); Fuller v. State, 860 A.2d 324, 328-29 (Del.2004); Price v. State, 858 A.2d 930, 939-40 (Del.2004); Pena v. State, 856 A.2d 548, 551-52 (Del.2004); Steckel v. State, 711 A.2d 5, 11-12 (Del.1998); Taylor v. State, 690 A.2d 933, 935 (Del.1997); Ferguson v. State, 642 A.2d 772, 778 (Del.1994); Dawson v. State, 637 A.2d 57, 62 (Del.1994); Sawyer v.…
cited Cited as authority (rule) Bohan v. State
Del. · 2010 · confidence medium
Pena v. State, 856 A.2d 548, 552 (Del.2004). 9 .
cited Cited as authority (rule) Purnell v. State
Del. · 2009 · confidence medium
Pena v. State, 856 A.2d 548, 551 (Del. 2004). 19 .
discussed Cited as authority (rule) Smith v. State
Del. · 2008 · confidence medium
See Revel v. State, 956 A.2d 23, 27 (Del.2008); Chambers v. State, 930 A.2d 904, 909 (Del.2007); Guy v. State, 913 A.2d 558, 565 (Del.2006); Brown v. State, 897 A.2d 748, 752 (Del.2006); Flowers v. State, 858 A.2d 328, 332-33 (Del.2004); Pena v. State, 856 A.2d 548, 550 (Del.2004). 6 .
examined Cited as authority (rule) Revel v. State (4×) also: Cited "see, e.g."
Del. · 2008 · confidence medium
See Brown v. State, 897 A.2d at 752 ; Flowers v. State, 858 A.2d at 334-35 ; Pena v. State, 856 A.2d 548, 550 (Del.2004); Ashley v. State, 798 A.2d 1019, 1022 (Del.2002); Hope v. State, 570 A.2d 1185, 1189 (Del.1990). 4 .
discussed Cited as authority (rule) Justice v. State (2×) also: Cited "see"
Del. · 2008 · confidence medium
Id. at 550-51 (citation omitted); accord Taylor v. State, 690 A.2d 933, 935 (Del.1997). 21 . 437 A.2d 559 (Del.1981). 22 . 815 A.2d 730 (Del.2002). 23 .
cited Cited "see" Dixon v. James T. Vaugh Correctional Center
D. Del. · 2021 · signal: see · confidence high
See Pena v. State, 856 A.2d 548, 550-51 (Del. 2004); Taylor v. State, 690 A.2d 933, 935 (Del. 1997).
cited Cited "see" Revel v. Pierce
D. Del. · 2014 · signal: see · confidence high
See Pena v. State, 856 A.2d 548, 550-51 (Del.2004); Taylor v. State, 690 A.2d 933, 935 (Del.1997).
cited Cited "see" Johnson v. State
Del. · 2009 · signal: see · confidence high
See Revel v. State, 956 A.2d 23, 27 (Del. 2008) (citing Pena v. State, 856 A.2d 548 , 551— 52 (Del.2004)). 101 .
cited Cited "see" Jackson v. State
Del. · 2007 · signal: see · confidence high
See Pena v. State, 856 A.2d 548, 550-51 (Del.2004). 4 .
discussed Cited "see, e.g." Green v. State
Del. · 2020 · signal: see also · confidence medium
But during the CAC interview that occurred on May 29th, Sarah told the interviewer that Green only performed an act of cunnilingus after which he ejaculated on her buttocks and 66 Revel v. State, 956 A.2d 23, 27 (Del. 2008) (quoting Dawson v. State, 637 A.2d 57, 62 (Del. 1994)) (internal quotation marks omitted); see also Phillips v. State, 154 A.3d 1130, 1144 (Del. 2017). 67 Pena v. State, 856 A.2d 548, 550 (Del. 2004). 68 Revel, 956 A.2d at 27 (quoting Brown v. State, 897 A.2d 748, 752 (Del. 2006)). 31 then left the room.
discussed Cited "see, e.g." Payne v. State
Del. · 2015 · signal: see also · confidence medium
Payne argues that this denial was an abuse of discretion. (7) A decision to grant or deny a mistrial is reviewed for an abuse of discretion.2 “This grant of discretion recognizes the fact that a trial judge is in the best position to assess the risk of any prejudice resulting from trial events.”3 “A trial judge should grant a mistrial only where there is ‘manifest necessity’ or the ‘ends of public justice would be otherwise defeated.’”4 “The remedy of a mistrial is ‘mandated only when there are ‘no meaningful and practical alternatives’ to that 2 Smith v. State, 963 A.2…
discussed Cited "see, e.g." Banther v. State
Del. · 2009 · signal: see also · confidence medium
See Allen v. State, 970 A.2d 203, 215-16 (Del.2009) (explaining that "when dealing with potential prosecutorial misconduct, '[i]f defense counsel raised a timely and pertinent objection to prosecutorial misconduct at trial, or if the trial judge intervened and considered the issue sua sponte, we essentially review for harmless error'") (quoting Justice v. State, 947 A.2d 1097, 1100 (Del.2008); Baker v. State, 906 A.2d 139, 148 (Del.2006)); see also Pena v. State, 856 A.2d 548, 551 (Del.2004).
cited Cited "see, e.g." Chambers v. State
Del. · 2007 · signal: see, e.g. · confidence medium
See, e.g., Pena v. State, 856 A.2d 548, 552 (Del.2004) (citations omitted). 13 .
Retrieving the full opinion text from the archive…
Jose F. PENA, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee
555, 2003.
Supreme Court of Delaware.
Aug 12, 2004.
856 A.2d 548
2004 Del. LEXIS 345
2004 WL 1874703
Jerome M. Capone, Wilmington, Delaware, for Appellant., Gregory E. Smith, Department of Justice, Wilmington, Delaware, for Appellee.
Steele, Holland, Berger.
Cited by 41 opinions  |  Published
STEELE, Chief Justice.

A Superior Court jury convicted Jose Pena of various drug-related charges. Pena moved in Superior Court for a mistrial based on a repeated reference to a narcotics investigation by a State’s witness as the impetus for an initial traffic stop. Counsel for both parties had agreed before trial that the witness would not refer to the drug investigation because of its potentially prejudicial effect upon the jury. The trial judge denied the motion after giving cautionary instructions to the witness and jury-

After reviewing the record, we find that the trial judge acted appropriately within his discretion, this was not a close case, and that Pena was not denied a fair trial. Accordingly, we AFFIRM the judgment of the Superior Court.

I.

Around noon on September 23, 2002, Appellant Jose Pena encountered Lakisha Brown on her way to a GED class at DelTech in Wilmington and asked if she would be interested in accompanying him to New York City later that day. Brown and Pena had met at a club two nights earlier. Brown agreed and phoned a friend, Nicole Shaw, to see if she would join them. Brown and Shaw thought that they would be going to New York City to go clubbing and have some money spent on them. They also expected to prostitute themselves in exchange for money and marijuana. Alex Rosa, a man unfamiliar to both Brown and Shaw, also accompanied them to New York City.

They departed Wilmington that afternoon and arrived at Pena’s mother’s apartment in the Bronx that evening. Pena left the apartment for about half an hour to purchase some crack cocaine while Rosa, Brown, and Shaw sat down to eat dinner. When Pena returned he asked Brown and Shaw to go into the bathroom with him where he broke a large piece of cocaine into two pieces and placed it into two plastic bags. He then asked the two women to place it into their vaginas in order to conceal it during the return trip to Delaware. The women agreed to do so.

Before they left New York City to return to Delaware, Pena and Rosa stopped to buy some marijuana. While Pena and Rosa were out of the car making the purchase, Brown and Shaw removed the cocaine from their vaginas, broke off some small pieces, and placed them in Shaw’s purse. They returned the remaining cocaine to their vaginas. Upon their return to Wilmington, the police, acting on a tip, stopped the gold Acura in which they were traveling near the intersection of Maryland Avenue and South Broom Street. The car improperly displayed a temporary tag. The police recovered almost 32 grams of crack cocaine from the women’s purse and vaginas.

Pena was arrested and later testified that he knew nothing about the drugs. He said the three dropped him off in New York City, that he went to his mother’s house alone by taxi, and that they later picked him up for the trip back to Delaware.

After a three day Superior Court trial, a jury convicted Pena of: Trafficking in Co[*550] caine; Possession with Intent to Deliver Cocaine; Maintaining a Vehicle for the Delivery of a Controlled Substance; Conspiracy in the Second Degree; and Criminal Impersonation. He was sentenced, inter alia, to a total of 16 years at Level V, suspended at various points for decreasing levels of probation.

II.

Pena insists that the repeated improper references to a “drug investigation” as the purpose for stopping Pena’s car by the State’s witness so prejudiced his right to a fair trial that his motion for a mistrial should have been granted. He maintains that the repeated, prejudicial references by the State’s witness, and the denial of the motion for a mistrial, ultimately forced him to change his trial strategy and testify in his own defense.

Before trial, the prosecutor and defense counsel agreed that no police witness would mention the narcotics investigation that led to the traffic stop and Pena’s arrest. The prosecutor cautioned Detective Vincent Jordan before he took the stand not to cite the drug investigation as the reason he stopped Pena’s car. Shortly thereafter, the following exchange took place during direct examination. of Detective Jordan:

Q. What was your assignment those early evening hours?
A. Conducting a drug investigation.

The defense objected and, after a sidebar conference, the objection was overruled. The judge did not directly prohibit Detective Jordan from using the phrase “drug investigation,” but he did suggest that the prosecutor “lead him through this” by asking him: “Did he stop the car?” Five answers later, Detective Jordan said that he asked the two women if he could question them “in regard to the other investigation.” The defense did not object to this response.

Finally, when asked about his interaction with Brown during the traffic stop, Detective Jordan responded that she had given him a false name and that he mentioned that he was “conducting an investigation in regards to narcotics.” The defense objected and the trial judge instructed the witness to refrain from references to drug investigations. He also instructed the jury to disregard the witness’s last response. [1] Detective Jordan made no more references to the investigation. After Detective Jordan’s testimony was finished, defense counsel moved for a mistrial. The court reserved judgment but later denied the motion.

III.

A trial judge sits in the best position to determine the prejudicial effect of an unsolicited response by a witness on the jury. [2] We review the denial of a motion for mistrial after an unsolicited response by a witness for abuse of discretion or the denial of a substantial right of the complaining party. [3] In doing so, we consider the nature and frequency of the conduct or comments, the likelihood of resulting prejudice, the closeness of the case and the sufficiency of the trial judge’s efforts to mitigate any prejudice in determining[*551] whether a witness’s conduct was so prejudicial as to warrant a mistrial. [4]

The prosecutor cautioned detective Jordan before he testified not to mention the narcotics investigation during his testimony. Jordan’s two objectionable references did not constitute an outburst nor were they intentionally non-responsive. Both were direct answers to otherwise routine, specific questions. There is no suggestion that Jordan intended to circumvent the prosecutor’s admonition on the trial judge’s ruling. Importantly, Jordan did not persist after being instructed by the trial judge to refrain from making further reference to a drug investigation.

The two references to an unspecified narcotics investigation are unlikely to have misled the jury or to have prejudiced Pena unfairly. We note that Detective Jordan referred only generically in both instances to an investigation. The first reference was in response to his “assignment” on the evening of the incident. The second reference was in direct response to a question about what he said to Brown during her detention at the time of the traffic stop. Detective Jordan’s testimony did not reveal that Pena was the target of the investigation, or that the traffic stop was a part of the Pena investigation.

Further, the record makes it clear that it was not a close case. Pena was seated in the front passenger seat of a car that had just returned from a trip to New York City when drugs were found on two other passengers. Receipts from travel plazas along the way confirmed testimony about the travel. Brown and Shaw both testified that they were carrying the cocaine as instructed by Pena. They testified that Pena invited them to New York City, purchased the cocaine, and then asked them to conceal the drugs in their vaginas until they returned to Delaware. The jury chose to believe their testimony. The fact that they admitted to drug use and prostitution made them more credible and likely, not less likely, to be acting as mules in drug trafficking. [5]

Finally, the trial judge took steps to mitigate any prejudice that may have resulted from the “investigation” comments. Prompt jury instructions are presumed to cure error and adequately direct the jury to disregard improper statements, even when the error references extraneous offenses. [6] In Dawson, a witness referred to the defendant’s previously overturned death penalty conviction. The judge instructed the jury to disregard and this Court held that it was an adequate instruction. Like an extraneous offense, an ongoing drug investigation can arouse prejudice that a defendant is more likely to have committed the alleged crime. Here, as in[*552] Dawson, the trial judge acted appropriately by both instructing the witness not to make any more references to- a drug investigation and instructing the jury to disregard the witness’s comment.

Mistrials are required “only where there is ‘manifest necessity’ or the ‘ends of public justice would be otherwise defeated.’ ” [7] Here, the references to a narcotics investigation were not so prejudicial that they required a mistrial. This was not a close case and the trial judge’s instructions to both witness and jury were sufficient to mitigate any prejudice to Pena. The trial judge’s instruction appropriately kept the jury focused on the incident in question and did not unnecessarily compound the effect of the references to a narcotics investigation. Further, the trial judge correctly reasoned that while the jury may have been curious about why Pena’s car was stopped, the instruction tended to deflect any speculation that it was the result of a narcotics investigation.

Finally, Pena cites no legal authority to support a reversal of his conviction and sentence because he was “forced to change his trial strategy and testify in his own defense.” Pena fails to show how his testimony harmed his case. Because this argument rests on a supposition that a mistrial should have been declared, and we have found otherwise, Pena’s contention has no merit.

IV.

For the foregoing reasons, the judgment of the Superior Court is hereby AFFIRMED.

1

. The trial judge said: "Objection sustained. The jury will disregard that last answer, all such references hereafter by the witness should [not be] used. The Court is allowing this only to explain what — just leave it at that.”

2

. Taylor v. State, 690 A.2d 933, 935 (Del. 1997).

4

. Griffith v. State, No. 570,2002, 2003 WL 1987915, at % 2003 Del. LEXIS 254, at *5 (Del.2003); Taylor, 690 A.2d at 935 First, the Court examines the nature, persistency, and frequency of the outburst. Second, the Court considers whether the outburst created a likelihood that the jury was misled or prejudiced. Third, the Court examines the closeness of the case. Fourth, the Court considers the trial judge’s attempt to mitigate any prejudice.

5

. See e.g. Malloy v. United States, 605 A.2d 59, 60 (D.C.1992) (describing the practice of drug dealers using other individuals as "mules” to transport drugs from place to place in order to reduce the risk that they will be caught with drugs on their own person).

6

. Dawson v. State, 637 A.2d 57, 62 (Del.1994) (jury instruction sufficient to cure prejudice even when the error references extraneous offenses); Brown v. State, No. 528,2000, 2001 WL 898589, at *2, 2001 Del. LEXIS 325, at *3 (Del.2001) (juries are presumed to understand and follow instructions issued by the Superior Court); Zimmerman v. State, 628 A.2d 62, 66 (Del. 1993) (jury instruction usually sufficient to remedy prejudice, caused by improper admission of evidence).

7

. Davis v. State, 1999 WL 86055, at *2 (Del.) (quoting Steckel v. State, 711 A.2d 5, 11 (Del. 1998)).