Mullen v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JEREMY MULLEN, §
§ No. 414, 2023
Defendant Below, §
Appellant, § Court Below–Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 2006006802 (K)
STATE OF DELAWARE, §
§
Appellee. §

Submitted: April 26, 2024
Decided: July 16, 2024

Before VALIHURA, TRAYNOR, and LEGROW, Justices.

ORDER

After consideration of the no-merit brief and motion to withdraw filed by the

appellant’s counsel under Supreme Court Rule 26(c), the State’s response, and the

Superior Court record, it appears to the Court that:

(1) In September 2020, the appellant, Jeremy Mullen, was indicted for the

rape of his half-sister Jennifer Adams.1 Following a four-day trial, a Superior Court

jury found Mullen guilty of second-degree rape. On October 19, 2023, the Superior

Court sentenced Mullen to twenty-five years of incarceration, suspended after fifteen

years for decreasing levels of supervision. This appeal followed.

1
The Court has assigned a pseudonym to the complaining witness under Supreme Court Rule 7(d).
(2) The State’s main witness at trial was Adams, who testified to the

following. Adams—who was separated from Mullen (and her other half-siblings)

as a two-year-old and raised by another family—reconnected with Mullen (and other

family members) through Facebook in late 2019. Thereafter, Adams and Mullen

began texting, and Adams attended a family party with Mullen in December 2019.

In May 2020, Mullen invited Adams, who was living in Pennsylvania at the time, to

visit him at his apartment in Dover, Delaware. Adams agreed to stay with Mullen

the night of May 15, 2020.

(3) The evening of May 15, Mullen, Adams, and other relatives mingled at

Mullen’s apartment, socializing and drinking alcohol. Mullen, who was drinking

heavily, eventually began slurring his words and otherwise exhibiting signs of

intoxication. The other relatives dispersed, leaving Mullen and Adams alone in

Mullen’s living room. At some point thereafter, Mullen FaceTimed with a woman

whom Adams understood to be a girlfriend of Mullen’s. Adams saw Mullen speak

angrily to the woman and point a gun at his phone screen. Adams took the gun away

from Mullen and tried to calm him. Mullen began woozily asking Adams if she

loved him and rubbing his hands over her body. Mullen then became physically ill

and vomited. After Adams cleaned up the vomit and encouraged Mullen to drink a

glass of water, Mullen forcefully insisted that Adams follow him into his bedroom.

Adams acquiesced, wanting to keep an eye on Mullen because she was worried that

2
he was going to be physically sick again. Mullen laid down on the bed and, once

Adams believed him to be asleep, she too laid down on the bed and tried to sleep.

Mullen awoke shortly thereafter and began aggressively touching Adams. Mullen

eventually hiked up Adams’ skirt, pulled down her underwear, and penetrated her

vagina with his penis despite her repeated protests. After several minutes, Adams

was able to scramble away from Mullen and flee the apartment. Adams drove back

to Pennsylvania and called the Dover Police Department to report the assault around

midnight on May 16. Adams acknowledged that she did not seek or submit to a

physical exam and that she did not return to Delaware to speak to a police officer

until June 9, 2020.

(4) The State also admitted into evidence, without objection, two sets of

text messages between Adams and Mullen that had been extracted from Adams’ cell

phone. Mullen’s many text messages to Adams from the early morning hours of

May 16, 2020, through the early days of June 2020 refer to, among other things: (i)

his extreme intoxication on May 15, (ii) his concern for Adams’ well-being, and (iii)

his embarrassment for the events that transpired on the night of May 15. The text

messages also show that Adams asked Mullen to buy her a car, give her money, and

provide her with a key to his apartment. The parties also entered into a stipulation

(the “DNA Stipulation”) that was made a court exhibit and read into the record:

[Adams] provided her clothing she wore immediately after the alleged
sexual intercourse occurred between her and the Defendant on May 16,
3
2020. This clothing was provided to Delaware’s Division of Forensic
Science and the Defendant’s DNA was not matched to any of the stains
that had previously been identified on the clothing.2

Mullen did not testify at trial.

(5) On appeal, counsel has filed a brief and a motion to withdraw under

Rule 26(c). Counsel asserts that, after a complete and careful examination of the

record, he could not identify any arguably appealable issues. Counsel informed

Mullen of the provisions of Rule 26(c) and provided him with a copy of the motion

to withdraw and a draft of the accompanying brief. Counsel also informed Mullen

of his right to supplement his attorney’s presentation. Mullen has raised issues for

the Court’s consideration, which counsel attached to the Rule 26(c) brief. The State

has responded to the Rule 26(c) brief and has moved to affirm the Superior Court’s

judgment.

(6) The standard and scope of review applicable to the consideration of a

motion to withdraw and an accompanying brief under Rule 26(c) is twofold. First,

the Court must be satisfied that defense counsel has made a conscientious

examination of the record and the law for claims that could be arguably raised on

appeal. 3 Second, the Court must conduct its own review of the record and determine

2
App. to Opening Br. at A454.
3
Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wis., 486 U.S. 429, 442
(1988); Anders v. California, 386 U.S. 738, 744 (1967).
4
whether the appeal is so totally devoid of at least arguably appealable issues that it

can be decided without an adversary presentation.4

(7) Mullen raises five arguments for the Court’s consideration: (i) the

prosecution’s repeated reference to Adams as a “victim” was unduly prejudicial; (ii)

Adams’ testimony that she witnessed him show a firearm to someone on a FaceTime

call was improperly admitted; (iii) the second set of text messages was improperly

admitted; (iv) a text message that Mullen tried to introduce was improperly

excluded; and (v) the DNA Stipulation should have been sent back to the jury during

jury deliberations. After careful review, we find no merit to Mullen’s arguments.

(8) Mullen first claims that the prosecutor and the chief investigating

officer improperly referred to Adams as a “victim” and that this characterization

prejudiced him in the eyes of the jury. This Court has cautioned that the term

“victim” “should not be used in a case where the commission of a crime is in

dispute.”5 Here, the Superior Court cured any prejudice that may have arisen from

the use of the term to describe Adams. After defense counsel objected to the

prosecutor’s use of the term in her opening statement, the Superior Court instructed

the jury to disregard any reference to Adams as a victim and directed the prosecutor

to advise her witnesses not to refer to Adams as a victim. During the chief

4
Penson, 488 U.S. at 81-82.
5
Jackson v. State, 600 A.2d 21, 24 (Del. 1991).
5
investigating officer’s testimony, he: (i) referred to Adams as a victim and

immediately corrected himself on one occasion,6 and (ii) referred to victims of sexual

assault generally on two occasions. After defense counsel brought this testimony to

the court’s attention, the Superior Court again instructed the jury to disregard any

reference to Adams as a victim. As a general rule, jurors are presumed to have

followed the trial court’s instructions.7 We find that the prosecution’s use of the

term “victim” under these circumstances does not constitute reversible error.

(9) Mullen next argues that Adams’ testimony that he threatened someone

on a FaceTime call should have been excluded. We review a trial court’s evidentiary

rulings for an abuse of discretion.8 Admission of a defendant’s prior bad acts is

governed by D.R.E. 404(b) and the so-call “Getz factors.”9 After defense counsel

objected to the aforementioned testimony, the State made a proffer (specifically, that

Mullen’s display of a weapon had an effect on Adams’ state of mind), the Superior

Court considered the Getz factors and found that they weighed in favor of admitting

the testimony, and the Superior Court gave an appropriate limiting instruction. The

Superior Court did not abuse its discretion by admitting this testimony under these

circumstances.

6
App. to Opening Br. at A116 (“I was advised that the victim was now—I’m sorry—[Adams] was
now in Pennsylvania and was reporting this assault.”).
7
Revel v. State, 956 A.2d 23, 27 (Del. 2008).
8
See Getz v. State, 538 A.2d 726, 728 (Del. 1988).
9
Id. at 734.
6
(10) Mullen next challenges the admission of the second of the two sets of

text messages (“State’s Exhibit 2”) that was admitted into evidence without

objection. Mullen argues that State’s Exhibit 2 “cannot be traced back to [him] at

all.”10 Mullen has waived this claim. Generally, the failure to raise a

contemporaneous objection to allegedly inadmissible evidence constitutes a waiver

of a defendant’s right to raise that issue on appeal, subject to review for plain error.11

But “the plain error standard of appellate review is predicated upon the assumption

of oversight.”12 When the record reflects, as here, that the decision not to object at

trial was a deliberate tactical decision by defense counsel—that is, the failure to

object is not attributable to counsel’s oversight—the failure to object constitutes a

true waiver of the issue on appeal.13 We take this opportunity to note that defense

counsel cross-examined Adams extensively about the text messages that she sent

Mullen and used them to undercut Adams’ testimony that she felt uncomfortable

around Mullen and to highlight, among other things, Adams’ familiarity with

“partying” and the timing of her requests for money from Mullen (specifically, the

fact that she repeatedly asked him for money or other things of value before she

returned to Delaware on June 9 to give a statement to the chief investigating officer).

10
Ex. B to Opening Br. at 2.
11
Wright v. State, 980 A.2d 1020, 1023 (Del. 2009).
12
Id.
13
Id.
7
Finally, to the extent that Mullen argues that his attorney was ineffective for failing

to object to the admission of State’s Exhibit 2, we ordinarily do not consider claims

of ineffective assistance of counsel on direct appeal,14 and we decline to do so here.

(11) Mullen next claims that the Superior Court erred by excluding a text

message that he sent to Adams in which he expressed, among other things, his

incredulity at Adams’ rape accusation (the “Message”). Mullen’s argument is

predicated on Adams’ admission that she received the Message and, he implies, that

her admission was sufficient to authenticate the Message. It was not. The Delaware

Rules of Evidence provide that the authentication requirement is satisfied when the

proponent produces “evidence sufficient to support a finding that the item is what

the proponent claims it is.”15 Notably, the Message was not captured by the phone

extraction on June 9, 2020. And Adams testified that could not remember when she

received the Message or, importantly, whether she received it before she returned to

Delaware to give a statement to police. Here, Mullen claimed that the Message was

sent by Mullen to Adams at some point between May 15, 2020, and June 9, 2020,

when the contents of Adams’ phone were extracted. But the Message did not have

a time stamp that aligned with the previously admitted sets of text messages and it

did not have a date stamp at all. Simply put, it was unclear if the Message was what

14
Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
15
D.R.E. 901(a).
8
Mullen claimed it was—that is, a text message Mullen sent to Adams before she

gave a statement to police—and the Superior Court did not abuse its discretion by

declining to admit it.

(12) Finally, Mullen complains that the DNA Stipulation should have been

sent to back to the jury room during jury deliberations. We review this claim for

plain error because it was not raised below.16 There is no plain error here. The DNA

Stipulation was, at its core, a summary of what the State’s DNA expert witness’s

testimony would have been. Whether to send an exhibit, including the transcript of

a witness’s testimony, to the jury room is a matter within the Superior Court’s broad

discretion.17 The Superior Court did not abuse its discretion by declining, sua

sponte, to send the DNA Stipulation to the jury room.

(13) The Court has reviewed the record carefully and has concluded that

Mullen’s appeal is wholly without merit and devoid of any arguably appealable

issue. We are also satisfied that Mullen’s counsel has made a conscientious effort

to examine the record and the law and has properly determined that Mullen could

not raise a meritorious claim in this appeal.

16
Del. Supr. Ct. R. 8.
17
See Flonnory v. State, 893 A.2d 507, 526 (Del. 2006) (noting our concern that “allowing the
jury to have transcripts of trial testimony during their deliberations might result in the jury giving
undue emphasis and credence to that portion of the testimony”).
9
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court be AFFIRMED. Counsel’s motion to withdraw is moot.

BY THE COURT:

/s/ Gary F. Traynor
Justice

10