              IN THE SUPREME COURT OF THE STATE OF DELAWARE


ABDUL WHITE,                                 §
                                             §   No. 210, 2018
         Defendant-Below,                    §
         Appellant,                          §   Court Below: Superior Court
                                             §   of the State of Delaware
         v.                                  §
                                             §   Cr. ID No. 1508010489 (K)
STATE OF DELAWARE,                           §
                                             §
         Plaintiff-Below,                    §
         Appellee.                           §

                               Submitted: January 16, 2019
                               Decided:   February 19, 2019

Before STRINE, Chief Justice; VALIHURA, and SEITZ, Justices.

                                             ORDER

         This 19th day of February, 2019, having considered the briefs and the record

below and oral argument, it appears to the Court that:

         (1)    After a two-week trial, a Superior Court jury convicted Abdul White of

murder first degree and lesser charges after he and two associates broke into a home,

held those inside captive, and killed John Harmon in pursuit of drugs believed to be

in Harmon’s home. On appeal, White argues the Superior Court erred by (1) not

granting a mistrial after alleged Brady1 evidence surfaced, (2) denying defense

requests during the trial to order the State to produce documents and information,


1
    Brady v. Maryland, 373 U.S. 83 (1963).
and (3) allowing the State to introduce into evidence White’s tattoo which read “Duct

Tape Bandit.” After a careful review of the record, we find that the trial court acted

within its discretion on each issue and affirm White’s convictions.

       (2)    On August 8, 2015, White and two other masked and armed men broke

into John Harmon’s home and restrained all eleven occupants. White’s wife drove

the three men to the house. White and his associates believed Harmon had a large

amount of marijuana at the house. White ordered his accomplices to restrain the

occupants with duct tape. White then allegedly interrogated and tortured Harmon

trying to find the hiding place for the marijuana. Eventually, Harmon was shot and

the three men fled the house without finding any drugs.

       (3)    The five adult witnesses who testified described the man who shot

Harmon as substantially larger than the other two and wearing a helmet.2 The helmet

had a light duct-taped to it and was found in Harmon’s house with White’s

fingerprint on it.3 One witness also identified the shooter as having a tattoo on his

face—which White also has.4

       (4)    At trial White testified that he was in the house, but not the person who

shot Harmon. White also claimed that he participated in the crime under duress.

According to White, Kevin McDonald, Sr.—White’s cousin—led a criminal



2
  App. to Answering Br. at B10-19 (Trial Tr.).
3
  Id. at B32.
4
  Id. at B5.


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operation which included White. White claimed to fear for his life if he did not aid

McDonald because White owed him $20,000.

         (5)     During the trial White’s counsel noted that Khalil Baines, one of the

men with White during the robbery, had given a two-and-a-half-hour statement to

the police, largely related to the robbery, that was not provided to White. White

argued that the statement was Brady evidence and also a statement by a co-

defendant—both of which should have been disclosed to the defense. The court

accepted the prosecutor’s statement that nothing in the statement was exculpatory,

but ordered it produced as arguably a co-defendant’s statement. The court gave

White a few days to review the tape before continuing the trial. The Superior Court

denied White’s request for a mistrial, noting that White had not alleged any

substantial prejudice and there was no evidence of prosecutorial bad faith.5

         (6)     Upon resumption of the trial, White requested that the State be ordered

to produce the probable cause affidavit attached to a search warrant request for

Baines’ DNA, and a sample of the DNA itself. The trial court refused because the

DNA was sought for a separate drug case involving Baines, and the State had not

compared Baines’ DNA to any DNA found in Harmon’s home.

         (7)     During trial the State sought to introduce evidence of the tattoo on

White’s stomach reading “Duct Tape Bandit” in a motion in limine. White opposed


5
    App. to Opening Br. at A86-87 (Trial Tr.).


                                                 3
the motion, claiming the tattoo was inadmissible hearsay and the State was

improperly using it as prejudicial character evidence. The Superior Court admitted

the tattoo because it was a party admission, duct tape was used at the crime scene,

and the risk of prejudice did not substantially outweigh its probative value.6

         (8)     After trial but before the verdict, the State received information of

threats made against White after he testified. The Superior Court denied White’s

requests for details about the threats. It found that the information came too late for

White to use in his defense and a late-2017 threat would have limited relevance to a

2015 murder. The Superior Court jury convicted White of murder first degree and

various lesser offenses. He was sentenced to life imprisonment for murder and over

a hundred years for the litany of other charges.

         (9)     A few months after trial, White became aware of misconduct by Carl

Rone, the State’s ballistics expert, and sought discovery of information about the

charges that resulted in his legal troubles. The Superior Court ruled that because the

State was not aware of any problem until about two months after the trial ended,

Rone’s report was admitted jointly, and Rone did not testify, the State did not have

to provide further information.

         (10) On appeal, White argues that the Superior Court should have required

the State to produce its search warrant affidavit for Baines’ DNA and the DNA itself


6
    State v. White, 2017 WL 3084711, at *2 (Del. Super. July 20, 2017).


                                                 4
because they might have been relevant to the crime scene evidence in the murder

case. The State argues in response that the State collected Baines’ DNA for an

unrelated drug investigation that had nothing to do with the Harmon murder. We

review the Superior Court’s denial of the request for abuse of discretion.7

          (11) We agree with the Superior Court that the affidavit of probable cause

and search warrant application for a DNA sample and the sample itself did not have

to be produced. The State requested the sample in an unrelated case. Further, the

State did not conduct a DNA comparison between Baines’ DNA and DNA from the

murder scene. Thus, the information was irrelevant to the murder trial.

          (12) White also argues that the Superior Court should have required the State

to disclose information relating to threats against White after he testified at trial.

White claims he could have used the evidence during trial. The State responds that

the information could not have been used at trial because it did not come to light

until after the case went to the jury. We find that the Superior Court did not err in

denying the request. As the court properly observed, a threat made in 2017 was

irrelevant to a 2015 duress defense.

          (13) Next, White contends the court erred in not ordering production of any

evidence related to the ballistics expert’s discipline and resignation from State

employment. We agree with the Superior Court, however, that the State did not


7
    Valentin v. State, 74 A.3d 645, 648 (Del. 2013).


                                                  5
know of information related to Rone’s alleged misdeeds until over two months after

White was convicted. More to the point, Rone did not testify in the murder trial and

his report was admitted after a joint stipulation of admissibility between the State

and the defense.

      (14) White also argues that the trial court should have granted a mistrial after

the State produced Baines’ statement, instead of granting White four additional days

to review the statement and respond. We review the denial of a motion for mistrial

for abuse of discretion.8 The State does not appear to dispute that White was entitled

to the video as a co-defendant’s statement, but notes that White does not argue any

specific prejudice. We agree with the State that the delay in trial cured any prejudice

by the late disclosure. Further, Baines’ statement did not include any exculpatory

statements to support White, White had four days to prepare before having to resume

trial, and White was probably aware of the statement prior to trial.9

      (15) White suggests that earlier knowledge of the statement would have

helped him “determine how to appropriately use that evidence, what witnesses to

call, and how to conduct cross examination of all witnesses, including not being

deceived by the chief investigating officer.”10 But, after receiving the statement,



8
  Michaels v. State, 970 A.2d 223, 229 (Del. 2009).
9
   App. to Opening Br. at A211 (Letter to Matthew Buckworth from Lindsay Taylor); App. to
Answering Br. at B48 (Trial Tr.).
10
   Opening Br. at 23.



                                           6
White did not request more time to call a different witness, did not try to recall the

chief investigating officer to the stand, or make any similar requests. White has not

identified any prejudice he suffered following production of the statement.11

       (16) Finally, White argues that the Superior Court erred in admitting his

“Duct Tape Bandit” tattoo because it was prohibited character evidence, hearsay,

and any probative value it had was substantially outweighed by the risk of prejudice.

The State responds that the tattoo is relevant because duct tape was used extensively

in the home invasion, the tattoo helped identify White as the robber using duct tape,

and the tattoo was self-explanatory.12 Further, according to the State, the tattoo was

not hearsay because it was an admission by a party opponent.

       (17) The Superior Court did not abuse its discretion in admitting the tattoo.

The tattoo qualified as a statement made by, or adopted by, White. A statement

made by, or adopted by, a party opponent is admissible as non-hearsay.13 The State’s

use of the tattoo was also not improper as evidence of a prior crime, wrongdoing, or

act under D.R.E. 404(b). In Watson v. State14 we recently dealt with a similar issue




11
   White also argued that the four issues above, cumulatively, constituted error sufficient to
mandate a mistrial. As discussed above, however, none of the actions of the Superior Court were
outside its discretion. And even taken cumulatively White has not alleged any substantial
prejudice. See Michaels v. State, 970 A.2d 223, 231 (Del. 2009) (finding no cumulative error
where the defendant has not shown any substantial prejudice).
12
   The State suggests “it means that he robs people and utilizes duct tape to facilitate his crimes.”
Answering Br. at 23.
13
   See D.R.E. 801(d).
14
   2015 WL 1279958, at *2 (Del. Mar. 19, 2015) (TABLE).


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of a tattoo purportedly representing a criminal act. This Court found that a tattoo of

“187,” believed to represent the crime of killing a police officer, was sufficient

evidence of intent to be admissible and not run afoul of D.R.E 404(b). Finally, under

D.R.E. 403 any prejudice by admission did not substantially outweigh its probative

value. During the murder, the house occupants and the victim were restrained with

duct tape at White’s order, and White’s helmet with his fingerprint had a light duct-

taped to the top. The tattoo helped identify White as the robber who used duct tape

and committed the murder. Thus, the Superior Court did not abuse its discretion by

admitting the tattoo into evidence.

      NOW, THEREFORE, it is hereby ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                              BY THE COURT:

                                              /s/ Collins J. Seitz, Jr.
                                                     Justice




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