Court Below—Superior Court of the State of Delaware, in and for New Castle County, Cr. ID 0908020419.Upon appeal from the Superior Court. AFFIRMED.

Jan A.T. van Amerongen, Jr., Esquire, Wilmington, Delaware, for appellant. James T. Wakley, Esquire, Department of Justice, Wilmington, Delaware, for appellee.

Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices.

HOLLAND, Justice:

The defendant-appellant, Charleston S. Williams (“Williams”), appeals from his conviction for Unlawful Sexual Contact in the First Degree, a lesser-included offense of Rape in the First Degree. Williams raises one claim on appeal. William contends that his conviction should be reversed because the prosecutor improperly prodded the victim to cry in front of the jury. We have concluded that the record evidence does not support that contention. Accordingly, the judgment of the Superior Court must be affirmed.

Facts

At approximately 4:00 a.m. on August 21, 2009, M.F. was in her apartment in Wilmington, Delaware smoking crack cocaine when Williams began knocking on her door. M.F. knew Williams from prior encounters. After an initial exchange about M.F.'s crack pipe, Williams left.

Williams returned minutes later. When M.F. opened the door, he grabbed her by her throat and pushed her toward the couch. Williams tightened his grip on her neck as they struggled on the couch. Williams eventually forced her to the ground and raped her.

At some point Williams released M.F. and instructed her to come to the front room of the apartment. M.F. disregarded that instruction and was able to escape, while naked, to her parent's home. M.F. was evaluated at Christiana Care later that day for sexual assault. DNA analysis was consistent with M.F.'s account that Williams had raped her.

Williams was charged with Rape in the First Degree. The matter proceeded to a four-day jury trial. During M.F.'s testimony, the following relevant exchanges occurred:

Re–Direct Examination:

State: Is there any doubt [ ] in your mind today as you testify that the defendant choked you and raped you? Yes or no, ma'am?

M.F.: No.

(Pause.)

State: Why are you crying?

M.F.: I'm just so angry at him. He didn't have to do what he done. I'm sorry.

State: That's okay....

Re–Cross Examination:

Defense: Do you remember in that meeting with [the prosecutor and the detective] and the social worker about a week ago that you were told it would be okay to cry in front of the jury?

M.F.: Yes.

Defense: Yeah. Do you remember that you were told they'll [sic] be a point where you can cry in front of the jury?

M.F.: Yes.

Re–Direct Examination:

State: Are you crying because I told you you should cry?

M.F.: I'm crying—that's how I feel, that I shouldn't have been hurt.

State: Is this the first time you cried in front of me?

M.F.: No, it isn't.

After additional re-cross-examination and an attempt at re-direct examination, the trial judge excused the jury and witness and sua sponte called a sidebar conference regarding the above exchange. The trial judge described it as “the oddest exchange I've seen in 20 years on the bench and 35 years as a member of the [B]ar....” The trial judge and counsel discussed the exchange at length. Ultimately, the judge determined a curative instruction was unnecessary.

Williams was found guilty of Unlawful Sexual Contact in the First Degree. The trial judge sentenced Williams to eight years imprisonment at level V, with credit for time served, suspended after six years with decreasing levels of supervision.

Misconduct Issue Waived

The State contends that Williams is barred from bringing his claim on appeal for plain error review because Williams expressly waived any objection for prosecutorial misconduct at trial. This Court has previously found that defense counsel's failure to object at trial, despite inquiry by the trial judge, may give rise to a waiver. In Hickman v. State, the defendant claimed on appeal that the trial judge committed reversible error by failing to provide a Getz instruction. We found that he had forfeited that claim, stating:

[T]he record plainly shows that, when the trial judge raised the issue of a potential Getz [ v. State, 538 A.2d 726 (Del.1988) ] instruction, defense counsel affirmatively waived his right to one, noting that he was making a tactical decision intended to minimize the jury's courtroom exposure to Hickman's alleged drug distribution. Hickman's unequivocal waiver of his right to a Getz instruction at trial forfeits any claim for plain error review on appeal. In MacDonald v. State, defense counsel acknowledged that “slips” occurred at trial when the prosecutor and a witness referred to the defendant's prior trial—but, defense counsel did not object or request that the witness's response be stricken from the record. We found that “because MacDonald waived his right to object to the ‘slips,’ or to strike these references to his first trial, he is precluded from any claim of plain error on appeal.”

In this case, defense counsel engaged in an extended colloquy with the trial judge and prosecutor about the conduct challenged on appeal. The discussion occurred because the trial judge raised the issue sua sponte during sidebar, not because defense counsel objected. In fact, defense counsel stated to the trial judge:

Your honor, I would like to say I do not dispute [the prosecutor's] representation to the court in any way that she did not tell this witness to cry. I have never known her in any way to even have a reputation for underhanded tactics or anything like that. However, what I interpreted to be going on was an attempt to elicit the emotional reaction. I do not think she told this witness or instructed this witness to cry when I put you on the stand.

The trial judge then asked whether the attorneys would like to add anything to the record. Defense counsel apologized, and did not raise a claim of prosecutorial misconduct, request a mistrial, or pursue a curative instruction. Accordingly, we hold that Williams' claim on appeal for prosecutorial misconduct was waived.

No Plain Error

Conclusion

The judgment of the Superior Court is affirmed.

1. Hickman v. State, 801 A.2d 10, 2002 WL 1272154, at *1 (Del. June 7, 2002).

2. Id.

3. MacDonald v. State, 816 A.2d 750, 756 (Del.2003).

4. Id.

5. Baker v. State, 906 A.2d 139, 148 (Del.2006).

6. Id. at 150.

7. Id.

8. Id.

9. Webb v. State, 931 A.2d 1007, 2006 WL 2959891, at *1 (Del. Oct. 18, 2006).