           IN THE SUPREME COURT OF THE STATE OF DELAWARE


NAEES BEEKS,                             §
                                         §       No. 192, 2015
      Defendant Below,                   §
      Appellant,                         §       Court Below: Superior Court
                                         §       of the State of Delaware,
      v.                                 §       in and for New Castle County
                                         §
STATE OF DELAWARE,                       §       Cr. ID. No. 1404019473
                                         §
      Plaintiff Below,                   §
      Appellee.                          §

                         Submitted: November 18, 2015
                         Decided:   December 1, 2015

Before HOLLAND, VALIHURA, and SEITZ, Justices.

                                     ORDER

      This 1st day of December, 2015, it appears to the Court that:

      (1)    In May, 2014, the police arrested Naees Beeks after he threatened the

parents of the mother of his child.          At trial, defense counsel cross-examined

Wilmington Police Department Detective Michael Gifford regarding the events

that led to Beeks’ arrest. Detective Gifford testified on cross-examination that

Terrance Cook, a witness to the incident, told him that Beeks had a gun. Instead of

objecting to the testimony as hearsay, Beeks’ attorney continued to question

Detective Gifford about the statement.

      (2)    In his closing statement, defense counsel argued to the jury that only

the parents said Beeks had a gun.            On rebuttal, the State corrected defense
counsel’s misstatement and reminded the jury of Detective Gifford’s testimony

about what Cook had told him. Beeks objected to the reference to Detective

Gifford’s testimony as hearsay and moved for a mistrial. The Superior Court

denied that request and instructed the jury to rely on their recollection of the

testimony and to draw their own conclusions. The jury found Beeks guilty of all

charges.

      (3)   Beeks has appealed, claiming that the Superior Court erred when it

permitted the jury to hear hearsay statements objected to during closing argument.

We find no merit to Beeks’ appeal and affirm the Superior Court’s denial of

Beeks’ motion for a new trial.

      (4)   Morgan McCallum and her daughter’s father, Naees Beeks, had been

involved in a tumultuous relationship. McCallum and her daughter lived with

McCallum’s mother and stepfather. Because of Beeks’ prior incidents of violence

against McCallum, Beeks was not permitted at their residence.

      (5)   On April 26, 2014, Beeks and his friend, Terrance Cook, went to

McCallum’s house. Beeks and McCallum were arguing in front of the home, and

McCallum’s stepfather told Beeks to leave. Beeks refused to leave until he saw his

daughter. The stepfather once again told Beeks to leave and cautioned that if he

did not leave, trouble would follow. Beeks then displayed a firearm and threatened

the stepfather. McCallum’s mother went outside when she heard the commotion

and told Beeks he had to leave. She saw Beeks point a firearm at the two of them.

                                        2
       (6)     On May 1, 2014, the police arrested Beeks and charged him with

Aggravated Menacing, 1 Possession of a Firearm During the Commission of a

Felony, 2 and Carrying a Concealed Deadly Weapon.3 At trial, Detective Gifford of

the Wilmington Police Department testified about the April 26 incident. On cross-

examination by defense counsel, Detective Gifford testified that Cook told him

Beeks brandished a gun during the incident.                  The record reflects that once

Detective Gifford recited Cook’s statement, Beeks’ counsel did not object.

Instead, counsel questioned Detective Gifford further:

       Q: That was Mr. Cook, okay, so Mr. Cook said he had a gun?
       A: Mr. Cook said who had a gun?
       Q: That Mr. Beeks had a gun?
       A: Mr. Cook said your client had a gun.
       ...
       Q: . . . Since you brought it up, Mr. Cook said that Mr. Beeks had a
       handgun?
       A: That’s correct.4

       (7)     Beeks’ counsel did not object or ask that the testimony be disregarded

because he did not want to call any more attention to the statement. 5 Cook did not

testify. On redirect, the State did not ask any questions regarding Cook’s statement

to Detective Gifford, nor did the State mention the testimony in the first part of its

closing argument. In Beeks’ closing argument, however, defense counsel stated

that only McCallum’s mother and stepfather said Beeks had a gun. On rebuttal,

1
  11 Del. C. § 602.
2
  11 Del. C. § 1447A.
3
  11 Del. C. § 1442.
4
  App. to Opening Br. at 22 (Trial Test. of Det. Gifford).
5
  Id. at 31; Opening Br. at 6-7.
                                                 3
the State sought to correct the record and reminded the jury of Detective Gifford’s

statement. Beeks’ counsel immediately asked for a sidebar conference.

         (8)      At the sidebar conference, Beeks objected to the State’s repetition of

Detective Gifford’s hearsay testimony. He also explained that he did not object

earlier to Detective Gifford’s statement because he did not want to draw attention

to the improper testimony.            The trial judge was unsure of the substance of

Detective Gifford’s statement, but permitted the State to make the argument that

there was another witness who said Beeks had a gun. He also permitted Beeks to

object.        After the conference concluded, the State continued its rebuttal and

reminded the jury of Detective Gifford’s testimony.             Beeks objected to the

testimony as hearsay. The judge then instructed the jury to rely on their own

recollection as to what Detective Gifford said in court and to “make of it what you

will.” 6 Beeks moved for a mistrial, which the court denied. The jury found Beeks

guilty of all charges. The trial judge sentenced him to ten years at Level V,

suspended after three years for decreasing levels of supervision.

         (9)      Beeks argues that Cook’s statement through Detective Gifford should

not have been admitted and a mistrial should have been granted. Specifically,

Beeks claims that Cook’s statement through Detective Gifford was a statement by

a non-testifying co-defendant and therefore inadmissible under the Confrontation

Clause of the Sixth Amendment to the United States Constitution and Bruton v.

6
    App. to Opening Br. at 31 (State’s Closing Statement).
                                                 4
United States.7 The State responds that the Confrontation Clause was not violated

because Beeks was not on trial with his co-defendant Cook. Further, the State

contends that Beeks’ failure to object when Detective Gifford testified constituted

a waiver of any objection. The State argues that we should not review the claim on

appeal because counsel’s failure to object was a strategic decision that resulted in a

waiver of the right to appeal the issue. Our standard of review for a trial court’s

denial of a motion for mistrial is abuse of discretion.8

       (10) Under Bruton, a defendant is deprived of his rights under the

Confrontation Clause when, in a joint trial, the State’s admission of a

codefendant’s confession incriminates the defendant, unless the confession is

sufficiently redacted to exclude the possibility that the jury will use it against the

defendant.9 As a threshold matter, Bruton is inapplicable. By definition, to raise a

claim under Bruton, the statement must come from a co-defendant in a joint trial.10

The State entered a nolle prosequi on Cook’s charges prior to Beeks’ trial. Thus,

they were not co-defendants and not involved in a joint trial. Additionally, the




7
  391 U.S. 123 (1968).
8
  See Taylor v. State, 827 A.2d 24, 27 (Del. 2003).
9
  Id.; see also Smith v. State, 647 A.2d 1083, 1089 (Del. 1994) (“In a joint trial, admission of a
codefendant’s confession that also incriminates the defendant violates the Confrontation Clause,
unless the confession is sufficiently redacted to exclude the possibility that a jury will use it
against the defendant.”) (internal citation omitted).
10
   See, e.g., Lampkins v. State, 465 A.2d 785, 794 (Del. 1983) (“The mere possibility that in a
joint trial some evidence may be admitted against one defendant which is inadmissible against
another is not, standing alone, a sufficient reason to require separate trials.”).
                                                5
State did not introduce the evidence of Cook’s statement. The testimony occurred

during cross-examination. Bruton is therefore inapplicable.

       (11) It is also settled law that a conscious decision to refrain from objecting

at trial as a tactical matter constitutes a waiver that precludes plain error review on

direct appeal. 11 Beeks’ theory of the case was that only McCallum’s mother and

stepfather, two biased witnesses, saw Beeks with a gun on the date of the incident,

and thus a reasonable doubt existed as to whether Beeks in fact had a gun.12 Both

at trial and in his brief, Beeks admits that he did not contemporaneously object to

Detective Gifford’s testimony because he did not wish to call attention to it and

discredit his theory of the case.          This deliberate action was the result of an

informed tactical decision by defense counsel. Thus, Beeks waived appellate

review of any arguable claim of error.

       (12) Beeks also argues that the Rules of Professional Conduct prohibited

the State from mentioning the Detective’s hearsay testimony during closing

because hearsay statements are inadmissible regardless of the failure to object.13

The State argues in response that hearsay testimony admitted without objection


11
   Jones v. State, 2015 WL 694151, at *3 (Del. Nov. 9, 2015) (“This Court has held that where a
party elects not to object, then a waiver has occurred and plain error review is not available.”);
Wright, 980 A.2d at 1020 (“However, if the record reflects that the decision not to object at trial
was a ‘deliberate tactical maneuver by’ defense counsel and did not result from oversight, then
that action constitutes a true waiver.”); see also Stevens v. State, 3 A.3d 1070 (Del. 2010); Czech
v. State, 945 A.2d 1088 (Del. 2008); Crawley v. State, 929 A.2d 783 (Del. 2007) (Table); Baker
v. State, 637 A.2d 825 (Del. 1993) (Table); Tucker v. State, 564 A.2d 1110 (Del. 1989).
12
   Opening Br. at 6-7.
13
   See D.R.P.C. 3.4(e).
                                                6
becomes substantive evidence and part of the trial record, and can be used by the

State in closing argument.

       (13) When inadmissible hearsay evidence is admitted without objection,

the general rule is that the hearsay thereafter becomes part of the record and can be

used to determine the facts of the case. 14 As stated in McCormick on Evidence:

       [The] failure to make a sufficient objection to incompetent evidence
       waives any ground of complaint as to the admission of the evidence.
       But it has another equally important effect. If the testimony is
       received without objection, the testimony becomes part of the
       evidence in the case and is usable as proof to the extent of its rational
       persuasive power. The fact that it was inadmissible does not prevent
       its use as proof so far as it has probative value. The inadmissible
       evidence, unobjected to, may be relied on in argument, and alone or in
       part it can support a verdict or finding. . . . This principle is almost
       universally accepted.15

       (14) In our adversarial system, counsel has an obligation to object to

hearsay evidence, particularly if it is damaging or untrue. When counsel fails to

object to hearsay, the evidence becomes part of the record. Any other rule would

lead to the undesirable result of requiring the trial judge to police the record for

unobjected to hearsay, which if missed could be raised as error after trial. We

therefore follow the “almost universally accepted” view and hold that once hearsay



14
   J.A. Bock, Annotation, Consideration, in Determining Facts, of Inadmissible Hearsay
Evidence Introduced Without Objection, 79 A.L.R.2d 890 § 3 (Originally published in 1961);
Tom Fulkerson, Hearsay Admitted Without Objection: A Reassessment of Its Probative Value, 33
BAYLOR L. REV. 983, 983 (1981) (“In the vast majority of American jurisdictions hearsay
evidence admitted without objection has probative force on review. Texas and Georgia form a
distinct minority, holding that in both civil and criminal cases hearsay is without probative value,
even if admitted without objection.”).
15
   1 MCCORMICK ON EVIDENCE § 54 (7th ed. 2013).
                                                 7
evidence is admitted without objection, a prosecutor may properly refer to the

evidence in closing argument.16

       (15) Finally, Beeks appears to make a claim for ineffective assistance of

counsel. It is settled Delaware law that this Court will not consider allegations of

ineffective assistance of counsel made for the first time on direct appeal. 17

Accordingly, we will not address this claim.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                                      BY THE COURT:

                                                      /s/ Collins J. Seitz, Jr.
                                                              Justice




16
   State v. Trewartha, 2006 WL 2780160, at *4 (Ohio Ct. App. Sept. 28, 2006) (“Although
appellant now claims that Detective Day’s testimony was hearsay and should not have been
utilized by the prosecutor during rebuttal, this argument rings hollow in light of his failure to
object at trial. . . . [T]he prosecution is afforded considerable latitude in closing argument, and a
prosecutor may comment upon the testimony and other evidence, and may suggest reasonable
inferences to be drawn thereon.”); Gochicoa v. Johnson, 118 F.3d 440, 447-48 (5th Cir. 1997)
(“[T]he prosecutor’s use of the hearsay evidence did not constitute prosecutorial misconduct; the
hearsay statements, once admitted in evidence without objection, were a proper subject of the
prosecutor’s closing argument.”); People v. Dandridge, 424 N.E.2d 1262, 1265-66 (Ill. App.
1981) (trial court properly allowed prosecutor’s reference in his closing argument to two city
employees’ testimony where defense counsel failed to make timely objection to hearsay during
the employees’ testimony); State v. Clark, 387 So. 2d 1124, 1130-31 (La. 1980) (trial judge did
not err in overruling defendant’s objection to prosecutor’s reference to hearsay testimony during
closing argument where defendant did not object to introduction of hearsay statements when they
were made); Commonwealth v. Bennett, 372 N.E.2d 271, 271-72 (Mass. App. 1978) (where
hearsay evidence had been admitted without objection, it was reversible error for trial judge to
refuse to allow defendant’s counsel to comment on it in closing argument).
17
   Desmond v. State, 654 A.3d 821, 829 (Del. 1994).
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