           IN THE SUPREME COURT OF THE STATE OF DELAWARE

NICOLE HANSLEY,                             §
                                            §      No. 586, 2013
      Defendant Below-                      §
      Appellant,                            §
                                            §      Court Below: Superior Court
      v.                                    §      of the State of Delaware in and
                                            §      for New Castle County
STATE OF DELAWARE,                          §
                                            §      No. 1211021447
      Plaintiff Below-                      §
      Appellee.                             §

                           Submitted: September 17, 2014
                             Decided: October 27, 2014

Before STRINE, Chief Justice, HOLLAND, RIDGELY, VALIHURA, Justices,
and NOBLE, Vice Chancellor.*

Upon appeal from the Superior Court. REVERSED.

Bernard J. O’Donnell, Esquire, of the Office of the Public Defender, Wilmington,
Delaware for Appellant.
Maria T. Knoll, Esquire, of the Department of Justice, Wilmington, Delaware for
Appellee.




*
 Sitting by designation pursuant to art. IV, § 12 of the Delaware Constitution and Supreme
Court Rules 2 and 4(a) to fill up the quorum as required.
RIDGELY, Justice:

          Defendant-Below/Appellant Nicole Hansley (“Hansley”) appeals from a jury

conviction in the Superior Court of Tier 4 Drug Dealing, Tier 5 Aggravated

Possession, Possession of Cocaine, and Possession of Drug Paraphernalia.

Hansley raises two claims on appeal, one of which has been conceded by the

State.1     Hansley’s remaining claim is that the trial court erred by precluding

Hansley from introducing relevant testimony of a former police officer, Cynthia

Aman (“Aman”), that Hansley was a prostitute addicted to crack cocaine, thereby

violating Hansley’s constitutional right to present a defense.2 We find that the trial

court erred by excluding relevant testimony in violation of the Delaware Rules of

Evidence (“D.R.E.”). Accordingly, we reverse. Because we find that the trial

court committed reversible error by excluding Aman’s testimony in violation of the

D.R.E., we do not reach Hansley’s constitutional argument.


1
  Hansley argued, and the State conceded, that the crimes of Drug Dealing under 16 Del. C.
§ 4752(1) and Aggravated Possession under 16 Del. C. § 4752(3) should have merged for the
purpose of sentencing.
2
  The Supreme Court of the United States has stated:
           The right to offer the testimony of witnesses, and to compel their
           attendance, if necessary, is in plain terms the right to present a defense, the
           right to present the defendant’s version of the facts as well as the
           prosecution’s to the jury so it may decide where the truth lies. Just as an
           accused has the right to confront the prosecution’s witnesses for the
           purpose of challenging their testimony, he has the right to present his own
           witnesses to establish a defense. This right is a fundamental element of
           due process of law.
Washington v. Texas, 388 U.S. 14, 19 (1967).
                         I.   Facts and Procedural History

      In 2012, Delaware State Police, along with other officers of the Governor’s

Task Force,3 were conducting surveillance at the Riverview Motel in Claymont,

Delaware. During this surveillance, the officers engaged and began questioning

two individuals.    While the officers were talking to the individuals, Hansley

approached the officers, informed them that she was staying in Room 404 of the

motel, and told them that the two individuals being questioned were there to give

her a ride. Hansley also admitted that she had recently smoked marijuana. The

officers then went to the door of Room 404 and noticed a strong odor of marijuana

emanating from inside. Hansley was arrested and searched. The officers found a

small glassine bag containing .01 grams of cocaine on Hansley’s person, and a

digital scale with cocaine residue on its base in her purse. A later search at the

police station revealed two pipes used to ingest crack cocaine hidden in Hansley’s

buttocks.

      Subsequently, the officers obtained a search warrant for the motel room.

While executing the search warrant, officers found six small packets containing

heroin concealed in an empty cigarette pack in a nightstand, and a two quart plastic

container of rice with 755 individual packets of heroin under one of the motel

room beds. Taken together, the heroin weighed a total of 7.04 grams. The officers


3
 The Governor’s Task Force is a unit comprised of Police Officers as well as Probation and
Parole Officers. Appellant’s Op. Br. App. at A13.

                                            3
also recovered a locked safe that contained an additional 1,298 individual packets

of heroin, weighing a total of 13.17 grams. Even without the heroin stored in the

safe, the amount found under the bed and in the nightstand was sufficient to meet

the 4-gram minimum for Tier 4 Drug Dealing,4 and the 5-gram minimum for Tier 5

Aggravated Possession.5       The officers also found a prescription pill bottle issued

to Hansley and Social Security paperwork with her name on it in the motel room.

Documents belonging to Marquis Brown (“Brown”), who Hansley contended to be

a drug dealer and the owner of the heroin found in the motel room, were also

recovered. But the officers did not find the key to the motel room or the safe.

Fingerprint analysis also revealed that Hansley’s fingerprints were not on the

plastic container filled with rice and heroin or the cigarette box full of heroin.

         Hansley was arrested and charged with Tier 4 Drug Dealing, Tier 5

Aggravated Possession, Possession of Cocaine, and Possession of Drug

Paraphernalia. At trial, Hansley premised her defense on the theory that a drug

dealer would not trust a cocaine-addicted prostitute to control his valuable drug

inventory. In support of that theory, Hansley attempted to introduce the testimony

of Aman, a retired Wilmington police officer who had arrested Hansley for cocaine

possession and prostitution on numerous occasions. The State objected to the




4
    16 Del. C. § 4751C(2)b.
5
    16 Del. C. § 4751C(1)b.

                                            4
admission of Aman’s testimony, and the trial court ruled that Aman would not be

permitted to testify unless Hansley herself first testified to lay a proper foundation.

The court stated:

             Now, this other officer from Wilmington, it seems to me, first
             of all, that just like when a person does something bad one time
             doesn’t mean they’ve done something bad the next time. The
             fact that they’ve committed one crime one time doesn’t mean
             they didn’t commit another crime another time. And so I
             believe two things. One, that if the intent is to present that
             testimony without the defendant having to testify to establish
             what her defense is, I don’t believe that can be done. If the
             question were posed, if she provides through her own testimony
             certain foundation, there may be some questions that would be
             permitted of that other witness. But the defendant herself is
             going to have to provide that foundation. I can’t allow that
             witness to testify.6

         The jury found Hansley guilty on all counts. The trial court sentenced

Hansley as a habitual offender to five years incarceration at Level 5 supervision on

the charge of Tier 4 Drug Dealing, four years incarceration at Level 5 suspended

after two years on the charge of Tier 5 Aggravated Possession, and probated terms

on each of the Possession of Cocaine and Possession of Drug Paraphernalia

offenses.




6
    Appellant’s Op. Br. App. at A9–10.

                                            5
                                    II.   Discussion

       We generally review a trial judge’s evidentiary rulings for abuse of

discretion.7 “However, alleged constitutional violations pertaining to a trial court’s

evidentiary rulings are reviewed de novo.”8 This Court has also explained that,

when reviewing claims for harmless error, “[t]he reviewing court considers the

probability that an error affected the jury’s decision. To do this, it must study the

record to ascertain the probable impact of error in the context of the entire trial.”9

As a result, “‘[a]ny harmless error analysis is a case-specific, fact-intensive

enterprise.’”10 “This approach indicates that the reviewing court must consider

both the importance of the error and the strength of the other evidence presented at

trial. An error may be important if, for example, it concerned a witness giving

significant testimony . . . .”11 “Under a harmless error analysis, ‘[t]he defendant

has the initial burden of demonstrating error,’ and then the State has the burden to

demonstrate that any error was harmless beyond a reasonable doubt.”12




7
   Manna v. State, 945 A.2d 1149, 1153 (Del. 2008) (citing Pope v. State, 632 A.2d 73, 78–79
(Del. 1993)).
8
   Allen v. State, 878 A.2d 447, 450 (Del. 2005) (citing Hall v. State, 788 A.2d 118, 123 (Del.
2001)).
9
  Van Arsdall v. State, 524 A.2d 3, 9–10 (Del. 1987).
10
    Capano v. State, 781 A.2d 556, 598 (Del. 2001) (quoting Dawson v. State, 608 A.2d 1201,
1204 (Del. 1992)).
11
   Van Arsdall, 524 A.2d at 10.
12
    Williams v. State, 2014 WL 3702418, at *3 (Del. 2014) (quoting Dawson v. State, 608 A.2d
1201, 1204 (Del. 1992)).

                                              6
       This Court has held that a trial court’s failure to admit relevant evidence, not

otherwise excluded under D.R.E. 403, constitutes reversible error.13 Under the

D.R.E., “[a]ll relevant evidence is admissible, except as otherwise provided by

statute or by [the D.R.E.] or by other rules applicable in the courts of [Delaware].

Evidence which is not relevant is not admissible.”14                “Relevant evidence” is

defined as “evidence having any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable

than it would be without the evidence.”15 “To be considered relevant, the purpose

for which the evidence is offered must be material and probative.”16 “Evidence is

material if the fact it is offered to prove is ‘of consequence’ to the action.”17

“Evidence has probative value if it ‘advances the probability’ that the fact is as the

party offering the evidence asserts it to be.”18

       D.R.E. 403 provides that the trial court may exclude relevant evidence “if its

probative value is substantially outweighed by the danger of unfair prejudice,



13
   See Kiser v. State, 769 A.2d 736, 741–42 (Del. 2001) (finding that the trial court abused its
discretion in excluding witness testimony, because that testimony would have been relevant to
the defendant’s claim of misidentification, and because the testimony was not prohibited under
D.R.E. 403); Watkins v. State, 23 A.3d 151, 154–157 (Del. 2011) (reversing a defendant’s
conviction due to the trial court’s failure to admit evidence relevant to his defense); see also
United States v. Stevens, 935 F.2d 1380, 1407 (3d Cir. 1991) (reversing a defendant’s conviction
based on the district court’s failure to admit evidence relevant to his defense).
14
   D.R.E. 402.
15
   D.R.E. 401.
16
   Norwood v. State, 95 A.3d 588, 598 (Del. 2014) (citing Kiser, 769 A.2d at 740).
17
   Id. (quoting Watkins, 23 A.3d at 155).
18
   Id. (quoting Watkins, 23 A.3d at 155).

                                               7
confusion of the issues or misleading the jury, or by considerations of undue delay,

waste of time or needless presentation of cumulative evidence.”19

                                Parties’ Contentions

         Hansley argues that the trial court erred by refusing to admit Aman’s

testimony. Hansley contends that Aman’s testimony was relevant because it was

necessary to establish that she was a cocaine-addicted prostitute, a fact vital to her

defense, and that the heroin in Room 404 actually belonged to Brown. The State

argues that Aman’s testimony was not material to her defense because it did not

negate her guilt, and thus was not relevant under D.R.E. 401. Alternatively, the

State argues that, assuming the trial court did err in refusing to admit Aman’s

testimony, the error was harmless. In support of this argument, the State points out

that defense counsel painted Hansley as a drug-addicted prostitute in both opening

and closing statements. Defense counsel also elicited testimony from the State’s

drug expert that: (1) the cocaine and drug paraphernalia found on her person were

likely for personal use; (2) prostitutes “latch” themselves on to drug dealers; and

(3) when drug dealers are found with prostitutes it is generally the drug dealers

who have control of the drugs. Finally, Derrick Tann, a friend of Hansley’s who

was also at the Riverview Motel on the night Hansley was arrested, testified that

Hansley was a prostitute.


19
     D.R.E. 403.

                                          8
            Aman’s Testimony Should Have Been Admitted Under the D.R.E.

         We find that the trial court abused its discretion by excluding Aman’s

testimony, as it was both relevant under D.R.E. 401, and permissible under D.R.E.

403. Hansley was charged with Drug Dealing and Aggravated Possession. Both

of these charges require the State to show that Hansley had either actual or

constructive possession of the heroin. The trial court charged the jury with the

following instruction on constructive possession:

             In addition to actual possession, possession includes location in
             or about the defendant’s person, premises, belongings, vehicle,
             or otherwise within her reasonable control. In other words, a
             person who, although not in actual possession, has both the
             power and the attention at a given time to exercise control over
             a substance either directly or through another person or persons
             is then in constructive possession of it.20

Further, the crime of Drug Dealing requires that the State prove beyond a

reasonable doubt that Hansley possessed the heroin with the intent to deliver it.21

         A crucial part of Hansley’s defense was premised on convincing the jury

that she was a cocaine-addicted prostitute whom a drug dealer, with actual control

of the drugs, would not trust to possess his valuable inventory. Hansley wanted to

establish these facts to explain her close proximity to the heroin, and show the jury

that she neither possessed nor intended to deliver the heroin. Aman’s testimony

was relevant in that it would have helped negate a jury finding of constructive


20
     Appellant’s Op. Br. App. at A103.
21
     16 Del. C. § 4752(1).

                                            9
possession, as well as the intent necessary to be convicted of Drug Dealing.

Specifically, Aman’s testimony would have supported Hansley’s argument that the

heroin actually belonged to Brown, and thus Hansley had no ability to exercise

control over it. The testimony would have also supported the argument that, even

if Hansley had access to the drugs, she had no intent to control or deliver them.

Rather, she was merely a prostitute who had “latched” on to Brown for the purpose

of serving her drug addiction. The State has also failed to show how Aman’s

testimony would have been prejudicial or confusing to the jury in any way under

D.R.E. 403.

       Additionally, we find that the trial court’s rationale for excluding Aman’s

testimony was based on the misplaced conception that Hansley herself was

required to testify to her drug addiction and prostitution before Aman could do so.

This reasoning finds no support under Delaware law and would have improperly

forced Hansley to waive her Fifth Amendment privilege against self-incrimination.

At oral argument before this Court, the State was asked to explain the trial court’s

reasoning in excluding Hansley’s testimony and candidly conceded: “To be frank

with the Court, I don’t know, I don’t agree with that reasoning.”22 For these

reasons, we conclude that the trial court’s rationale for refusing to admit Aman’s




22
   Oral Argument at 22:42, Hansley v. State, No. 586, 2013 (Del. Sep. 19, 2014), available at
http://courts.delaware.gov/supreme/oralarguments/.

                                             10
testimony was erroneous and that the court’s decision to exclude this relevant

evidence constituted an abuse of discretion.

                            The Trial Court’s Error Was Not Harmless

       Finally, we find no merit to the State’s argument that the trial court’s error

was harmless beyond a reasonable doubt. The evidence tending to show that

Hansley was in possession of the heroin found in the motel room is not

overwhelming. The State failed to prove that Hansley was registered to the motel

room where the heroin was found. She did not have a key to the motel room or the

locked safe inside of the motel room. Further, Hansley’s fingerprints were not

found on the plastic container filled with rice and heroin or the cigarette box that

contained heroin.

       Also significant to our analysis is the fact that the State refused to stipulate

at trial that Hansley was either a prostitute or a cocaine addict. In fact, the State

resisted both propositions before the jury. Aman’s testimony would have, at the

very least, bolstered Hansley’s assertions. Instead, Hansley was forced to rely

solely on her friend Derrick Tann to testify that she was a prostitute.23 Testimony

given by a friend of the accused is far less objective, and therefore arguably less

credible to the jury, than the excluded testimony of Aman, a former police officer.


23
   The State objected during Tann’s testimony and attempted to cast doubt on his statements that
Hansley was a prostitute. See Appellant’s Op. Br. App. at A73–74 (“Your Honor, the State’s
concern is that this witness is going to be used to try to establish that she is, in fact, a prostitute
or she does, in fact, have certain addictions.”).

                                                  11
The importance of Aman’s testimony is emphasized by the weight the State put on

negating Hansley’s defense.              During closing argument, the State argued that

“[t]here is no testimony at all before you that Nicole Hansley uses drugs at all.” 24

Although defense counsel objected to this statement, the trial court, which had

earlier excluded Aman’s testimony establishing Hansley’s drug use, overruled the

objection and allowed the State to argue to the jury that there was no direct

evidence or testimony that Hansley used drugs. Based on these facts, we find that

the trial court’s erroneous decision to exclude Aman’s testimony was not harmless.

                                     III.    Conclusion
         Hansley’s claim that she was a cocaine-addicted prostitute who had no

ability or intent to control or deliver the heroin seized in this case was the crux of

her defense. Exclusion of Aman’s relevant testimony deprived Hansley of a full

opportunity to present that defense and was an abuse of discretion. The judgment

of the Superior Court is REVERSED and the matter REMANDED for a new trial

consistent with this Opinion.




24
     Appellant’s Op. Br. App. at A100.

                                                12
