           IN THE SUPREME COURT OF THE STATE OF DELAWARE


BRUCE WORTHY,                      §
                                   §      No. 290, 2014
      Defendant Below,             §
      Appellant,                   §      Court Below - Superior Court
                                   §      of the State of Delaware in
      v.                           §      and for Sussex County
                                   §
STATE OF DELAWARE,                 §     Cr. ID. No. 1310012858
                                   §
     Plaintiff Below,              §
     Appellee.                     §

                          Submitted: August 5, 2015
                           Decided: August 6, 2015

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and
SEITZ, Justices, constituting the Court en banc.

Upon appeal from the Superior Court. REVERSED.

Santino Cecotti, Esquire, Office of the Public Defender, Wilmington, Delaware,
for Appellant Bruce Worthy.

Maria T. Knoll, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, for Appellee.




SEITZ, Justice:
                                I.      INTRODUCTION

       The defendant, Bruce Worthy, allegedly threatened his mother and brother

with a gun. Worthy’s mother, Valerie Coleman, called 911 to report the threat,

leading to Worthy’s arrest and a number of criminal charges. At trial, Coleman

was one of the State’s main witnesses. 1 The State subpoenaed Coleman to testify,

but she failed to appear at trial. The State tracked her down and put her in jail on a

material witness capias. 2 When the State brought her from jail to testify, Coleman

was uncooperative and tried to end her testimony by “plead[ing] the Fifth.” 3

       The trial judge removed the jury and spoke with the prosecutor, who in

response to prompting from the trial judge, said that the State was giving Coleman

“full immunity . . . [o]n everything,” 4 including perjury. The trial judge instructed

Coleman that “[e]ven if you commit a crime by your testimony the State has

basically said that you cannot be prosecuted.”5 Coleman reluctantly continued her

testimony after the judge’s instruction. A jury found Worthy guilty of aggravated

menacing against Coleman, but acquitted him on all other counts.




1
  App. to Answering Br. at 2-3.
2
  Id.; App. to Opening Br. at 25(a).
3
  App. to Answering Br. at 7-12; App. to Opening Br. at 25(a).
4
  App. to Opening Br. at 25(b).
5
  Id. at 25(c).
                                               1
       On appeal, Worthy argues that the prosecutor erred in granting Coleman

immunity against prosecution for perjury, and that the legal error was not harmless

beyond a reasonable doubt. We agree, and reverse and remand for a new trial.

                                  II.    BACKGROUND

       In the late evening hours on October 20, 2013, Bridgeville Police Officer

John Cullen responded to a 911 call from Coleman at 311 Delaware Avenue,

Bridgeville, Delaware. 6 Coleman called the police because Worthy was “running

around here with a gun.” 7 In the course of the call, she stated repeatedly, “he point

the gun at me.” 8 Coleman also said that Worthy was leaving the house and driving

away in “a 1986 F-150.” 9

       A few minutes later, Bridgeville Police Officer Nicolas DeMalto saw a

white Ford F-150, matching the description sent out over dispatch after Coleman’s

911 call.10 Officer DeMalto turned on his patrol car lights and chased the pickup

truck.11    Worthy, driving the F-150, ignored DeMalto’s lights and drove back to

311 Delaware Avenue with DeMalto in pursuit. 12 Officer DeMalto eventually

stopped and arrested Worthy at the house. When DeMalto asked Worthy about



6
  Id. at 23; Answering Br., Exhibit A.
7
  Answering Br., Exhibit A.
8
  Id.
9
  Id.
10
   App. to Answering Br. at 20-22.
11
   Id. at 22-24, 29.
12
   Id. at 28-29, 33-34.
                                           2
having a gun in the house, Worthy claimed it was a beer can and not a gun. 13 The

police did not find a weapon in Worthy’s vehicle.14                    Worthy was taken to

Nanticoke Hospital for a blood draw on suspicion of driving while intoxicated. 15

His blood alcohol level measured 0.14.16

       Officer Cullen interviewed Coleman and her other son, Troy Worthy

(“Troy”), in the early morning hours of October 21.17                  According to Cullen,

Coleman said she argued with Worthy, who left the house but then “came inside,

kicked in the back door, had the gun, was pointing it and waving it at both of

them.” 18 Officer Cullen testified at Worthy’s trial that Troy agreed with this

sequence of events. Coleman and Troy both provided the police with written and

recorded statements.19

       A Sussex County grand jury indicted Worthy on December 16, 2013, on

twenty-four charges: two counts of aggravated menacing, for pointing a gun at

Coleman and Troy; two counts of possession of a firearm during the commission

of a felony; two counts of terroristic threatening; one count of possession of a

firearm by a person prohibited; one count of driving a motor vehicle under the



13
   Id. at 27-28.
14
   Id. at 27.
15
   Id. at 29-30.
16
   Id. at 30-31.
17
   App. to Opening Br. at 98-99.
18
   Id. at 99.
19
   App. to Answering Br. at 19; App. to Opening Br. at 26-27, 85-86.
                                               3
influence; and sixteen other motor vehicle charges. 20 Worthy pled guilty to driving

under the influence and the other motor vehicle charges, and went to trial in March

2014 on the weapons, aggravated menacing, and terroristic threatening charges.21

        The State served Coleman and Troy with subpoenas to appear to testify at

trial.22 Both failed to appear. 23 The prosecutor told the Superior Court that during

their interviews in preparation for trial, Coleman and Troy told the prosecutor that

Worthy contacted them from prison. 24 The Superior Court granted the State’s

request for material warrant capiases for Coleman and Troy, who were located and

put in jail. 25

        When the State brought Coleman from jail and called her as a witness at

trial, she was “argumentative.”26 She backtracked on her prior statements about

Worthy waving a gun. “I assume I saw a gun,” she said. 27 “I don’t know if it was

keys or a gun, but I said it was a gun and I thought it was . . . . I didn’t say specific

that it was a gun.”28 The prosecutor asked Coleman if she blamed the State for

putting her in jail. 29 Coleman said that she did and felt, “if I didn’t want to be here,


20
   App. to Opening Br. at 5-10 (Indictment).
21
   Id. at 3-4, 11.
22
   App. to Answering Br. at 2-3.
23
   Id. at 3.
24
   Id.
25
   Id.; Answering Br. at 7; App. to Opening Br. at 25(a), 77.
26
   Answering Br. at 9.
27
   App. to Answering Br. at 7.
28
   Id. at 8.
29
   App. to Opening Br. at 25(a).
                                                4
I shouldn’t have to be here.” 30 At that point, she stated, “And as of now . . . I plead

the Fifth. I don’t want to say anymore.” 31 The prosecutor showed Coleman her

prior written statement and she responded, “I still plead the Fifth.” 32

         The Superior Court removed the jury and the following colloquy ensued

among the judge, prosecutor (Gelof), Coleman, and her defense attorney (Stumpf):

         THE COURT: Mr. Gelof, as to the potential of a, quote, false report
         and the witness’s desire to rely on the Fifth Amendment of the Bill of
         Rights, is the State going to offer her immunity?

         MR. GELOF: Yes, she has – she’s not facing the potential for any
         criminal prosecution other than perjury.

         THE COURT: Well, that is –

         MR. GELOF: I mean, that’s –

         THE COURT: She could take the Fifth. Are you offering her full
         immunity?

         MR. GELOF: Yes.

         THE COURT: On everything?

         MR. GELOF: Yes.

         THE COURT: Ma’am, what that means is, you have no Fifth
         Amendment right. The State will not prosecute you. You only have a
         Fifth Amendment right to not testify against yourself. Since the State
         is basically saying that whatever you say here today cannot ever be
         used against you for a crime, you will be required to testify. Do you
         understand that? It’s not your personal choice. The State –

30
   Id.
31
   Id.
32
   Id.
                                           5
       THE WITNESS: So I can’t plead the Fifth?

       THE COURT: You can’t plead the Fifth because there’s no possible
       crime you could commit. Even if you commit a crime by your
       testimony, the State has basically said that you cannot be prosecuted.

       THE WITNESS: Okay.

       THE COURT: All right.

       MR. STUMPF: Your Honor, if I may, this is a little bit of new
       territory for me, but I would object in that it seems the State has just
       given Ms. Coleman carte blanche to lie and with no repercussion
       which absolutely voids the oath which she’s taken on the stand –

       THE COURT: I don’t think they’ve given her carte blanche to lie.

       MR. STUMPF: They just said that they wouldn’t prosecute her for
       perjury.

       THE COURT: They said they wouldn’t prosecute her for anything.
       All right? So the jury will decide, ultimately, as you said, the truth.
       All right? And if you want to bring this out on cross-examination that
       she has been offered immunity, whatever she says, you can do so.
       That goes to her bias, etcetera.33

       The prosecutor continued with his direct examination of Coleman and had

Coleman read to the jury her prior written statement that Worthy had pointed a gun

at her. 34 Coleman read the statement, in the State’s view, “reluctantly.” 35 She

continued to testify that she was not sure whether Worthy had a gun in his hand. 36


33
   Id. at 25(b)-25(d).
34
   Id. at 26-31; Answering Br. at 9-10.
35
   Answering Br. at 9.
36
   App. to Opening Br. at 38, 41-43, 45, 48, 50, 52.
                                                6
Troy followed her lead and testified to the same doubts.37 The State treated them

both as hostile witnesses.38 Their testimony, along with their earlier statements to

police and a recording of Coleman’s 911 call, were the only evidence presented at

trial.

         The jury found Worthy guilty of one charge of aggravated menacing as to

Coleman, and not guilty on all the remaining charges.39          Worthy was then

sentenced as a habitual offender to 18 years in prison.

                                     III.    ANALYSIS

         Worthy argues on appeal that the Superior Court erred as a matter of law in

granting Coleman immunity from prosecution for perjury. We agree. Under

Delaware law, the Superior Court cannot grant a witness immunity from perjury.

         “The power of government to compel persons to testify in court or before

grand juries or other governmental agencies is firmly established in Anglo-

American jurisprudence.”40 At the same time, there are “a number of exceptions

from the testimonial duty, the most important of which is the Fifth Amendment

privilege against compulsory self-incrimination.”41 The Fifth Amendment to the




37
   Id. at 83, 87; App. to Answering Br. at 15-16.
38
   App. to Opening Br. at 34.
39
   Id. at 115-16.
40
   Kastigar v. United States, 406 U.S. 441, 443 (1972).
41
   Id. at 444.
                                                7
United States Constitution provides in relevant part that “[n]o person shall be . . .

compelled in any criminal case to be a witness against himself . . . .” 42

       Immunity statutes “seek a rational accommodation between the imperatives

of the privilege and the legitimate demands of government to compel citizens to

testify.” 43 Under the Delaware immunity statute, the Superior Court can compel

testimony from witnesses refusing to answer questions due to self-incrimination. It

also provides certain protections against prosecution. 44 But the statute contains an

explicit perjury exception:

       In no event, however, shall such person, acting pursuant to such order
       [granting immunity], be exempt from prosecution or penalty or
       forfeiture for any perjury, false statement or contempt committed in
       answering or failing to answer, or in producing or failing to produce
       evidence in accordance with the order, and any testimony or evidence
       so given or produced shall not by virtue of this section be rendered
       inadmissible in evidence upon any criminal action, investigation or
       proceeding concerning such perjury, false statement or contempt. 45
       Under the statute, the Superior Court erred in granting Coleman immunity

from perjury. On appeal, the State has no real response to this error, saying only

that it “does not agree that by providing Coleman with immunity, she was also free



42
   U.S. Const. amend. V.; see also Del. Const. art. I, § 7 (“In all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself or herself . . . .”).
43
   Kastigar, 406 U.S. at 446; 11 Del. C. § 3506.
44
   11 Del. C. § 3506.
45
   Id. An implied perjury exception exists under the federal immunity statute because “it cannot
be conceived that there is power to compel the giving of testimony where no right exists to
require that the testimony shall be given under such circumstances and safeguards as to compel it
to be truthful.” Glickstein v. United States, 222 U.S. 139, 142 (1911).
                                               8
from the specter of possible perjury charges.” 46 The State never explains how this

could be so, given the undisputed trial record where the Superior Court told

Coleman that she could not be prosecuted for any crime.

      The State’s main argument on appeal rests on harmless error. Under a

harmless error analysis, the defendant must first prove, as he has done here, that

there was error. The burden then shifts to the State to demonstrate that the error

was harmless beyond a reasonable doubt. 47            This Court considers “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 or if it concerned evidence obtained only through testimony

erroneously admitted.” 48

      The State argues that the grant of immunity for perjury was harmless

because Worthy had the opportunity to cross-examine Coleman on her

understanding of the grant of immunity, as well as her inconsistent statements. It

also contends that Coleman’s testimony was not necessary to convict Worthy

because other evidence existed that was sufficient to convict Worthy, such as

Coleman’s 911 call recording and Troy’s statement to police. 49



46
   Answering Br. at 14.
47
   Williams v. State, 98 A.3d 917, 922 (Del. 2014) (quoting Dawson v. State, 608 A.2d 1201,
1204 (Del. 1992)).
48
   Van Arsdall v. State, 524 A.2d 3, 10 (Del. 1987).
49
   Answering Br. at 19-21.
                                            9
       Worthy argues in response that the Superior Court’s error was not harmless

beyond a reasonable doubt because Coleman was “the State’s star witness,”50

particularly with respect to the charge of aggravating menacing as to her – the only

charge for which Worthy was found guilty. Worthy also points to the fact that

Coleman’s testimony allowed the State to introduce into evidence Coleman’s out-

of-court statements about Worthy pointing a gun at her. 51                  As evidence that

Coleman’s testimony contributed to the guilty verdict, Worthy cites the Superior

Court’s finding that Coleman could be incarcerated on a material witness capias.

Evidence is material, Worthy claims, “only if there is a reasonable likelihood that

the testimony could have affected the judgment of the trier of fact.” 52

       We agree with Worthy that the State has not proven that the trial court’s

error in granting Coleman immunity from perjury was harmless beyond a

reasonable doubt. The police did not find a gun in Worthy’s car or in the house,

leaving Coleman’s and Troy’s trial testimony and statements to the police and

Coleman’s 911 call recording as the only evidence to convict Worthy. Coleman

was a central witness in the trial. It is plausible, as the defense argued at trial, that

Coleman and Troy simply wanted the police to get Worthy out of the house in his

drunk and disruptive state. The jury thus had to make a credibility determination

50
   Opening Br. at 12.
51
   Id.
52
   Reply Br. at 4-5 (quoting Cole v. State, 959 A.2d 18, 23 (Del. 2008)).

                                                10
whether their testimony at trial about being mistaken about seeing a gun was more

credible than the statements to the police and the 911 call.

      In making that credibility determination, the offer of “full immunity” to

Coleman was highly relevant. She failed to appear at trial, was aggravated at being

arrested and put in jail, and might not have wanted to be the cause of a long prison

sentence for her son. Knowing that she was immune from any consequences for

lying under oath could have persuaded the jury to believe her earlier statements to

the police, which incriminated Worthy, over her trial testimony, which tended to

exculpate him.

      We recognize that an overbroad grant of immunity could also be viewed as

giving Coleman free rein to testify favorably in Worthy’s defense, and that the jury

instead apparently rejected her trial testimony. But Coleman’s testimony was

central to the prosecution’s case and an untainted testing of her credibility was

indispensable for the jury to determine the weight to be given to the statements

made during her 911 call and to the police after the incident.

      We believe that it would be hazardous to speculate after the fact what effect

exempting a witness from a major portion of the affirmation that all witnesses must

give—acknowledging that they face possible prosecution for perjury if they testify

untruthfully—had on the witness’ testimony or the jury’s reaction to it. When a

witness is critical to the State’s case, as was the situation here, that witness must be

                                          11
subject to the consequences for perjury faced by all other witnesses. Although it is

doubtless the case that the ritual of requiring a witness to affirm her duty to testify

truthfully under penalty of perjury does not deter all witnesses from lying on the

stand, our law regards this affirmation as a baseline requirement of justice in all

cases, civil or criminal, and one that plays a useful role in producing good faith

testimony. When the consequences are as important as those faced by a defendant

in a felony trial, we cannot deem the elimination of this fundamental requirement

as to an important prosecution witness to be harmless beyond a reasonable doubt.

                               IV.   CONCLUSION

      The Superior Court erred in granting Coleman immunity from perjury. The

error was not harmless beyond a reasonable doubt. We therefore reverse and

remand to the Superior Court for a new trial.




                                          12
