        IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHRISTOPHER CLAY,                     §
                                      §     No.   8, 2016
      Defendant Below,                §
      Appellant/Cross-Appellee,       §     Court Below: Superior Court of
                                      §     the State of Delaware
      v.                              §
                                      §     ID No. 1408007714A (S)
STATE OF DELAWARE,                    §
                                      §
      Plaintiff Below,                §
      Appellee/Cross-Appellant.       §
                                      §
                                      §


                        Submitted:    April 12, 2017
                         Decided:     June 1, 2017


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

Upon appeal from the Superior Court. AFFIRMED in part, REVERSED in part.

Michael W. Andrew, Esquire, Law Office of Mooney & Andrew, P.A., Georgetown,
Delaware, for Appellant/Cross-Appellee, Christopher Clay.

Kathryn J. Garrison, Esquire, Delaware Department of Justice, Georgetown,
Delaware, for Appellee/Cross-Appellant, State of Delaware.




VAUGHN, Justice:
                               I.   INTRODUCTION

      Defendant-below/Appellant Christopher Clay appeals from a Superior Court

jury verdict finding him guilty of Robbery in the First Degree, Possession of a

Firearm During the Commission of a Felony, Tampering with Physical Evidence,

Conspiracy in the Second Degree, and Resisting Arrest.       He asserts three claims on

appeal.   First, he claims that the trial court abused its discretion by denying his

motion to sever his trial from the trial of his co-defendants.   Second, he claims that

the trial court erred by denying his motion for judgment of acquittal on all charges.

Finally, he claims that the trial court erred by finding the police possessed a

reasonable, articulable suspicion to seize him and probable cause to arrest him.    On

cross-appeal, the State claims that the Superior Court abused its discretion by

requiring the State to provide the defendant with a redacted copy of a Department of

Justice intake document and a copy of the prosecutor’s notes from witness interviews

under Superior Court Criminal Rule 26.2.

      For the reasons which follow, we find that the trial court abused its discretion

when it denied Clay’s motion for judgment of acquittal on the Tampering with

Physical Evidence charge, but reject his remaining claims.       We also find that the

trial court erred by requiring the State to provide a copy of the Department of

Justice’s intake document and copies of the prosecutor’s notes under Rule 26.2.




                                           1
The judgment of the Superior Court is, therefore, affirmed in part and reversed in

part.

                   II.   FACTS AND PROCEDURAL HISTORY

        On August 9, 2014, an employee of the Dollar General store in Georgetown,

Delaware was taking a register till to her office shortly before 9:00 p.m.       As she

entered her office, a man wearing a black hat and a t-shirt that said “Security” on the

back approached her in her office while displaying a black handgun.          He ordered

her to give him the money from the register till she had and another till that was in

the office.   After she did so, he told her to get on the ground.   The man then exited

the store and the employee called the police.

        Shortly after the robbery occurred, Corporal Joel Diaz of the Georgetown

Police Department observed three black males run across the street.       Corporal Diaz

testified that his attention was initially drawn to the men because a series of robberies

had recently taken place in the area.     As Corporal Diaz continued to observe the

men, a call came over his radio that a robbery had just taken place at the Dollar

General store, which was a quarter of a mile away from his location.      The radio call

described the suspect as a black male dressed in all black and possibly armed with a

handgun.      Corporal Diaz realized that one of the three men that he was observing

was dressed in all black.   The officer approached the men, rolled down his window

and asked them to stop.      At first, the men ignored him, but when Corporal Diaz


                                            2
stopped and exited his vehicle, one of the men, later identified as Christopher Clay,

ran.     Corporal Diaz radioed to other officers to pursue Clay and ordered the other

two men, later identified as Maurice C. Land and Booker T. Martin, to stop.

         Corporal Diaz and another Georgetown Police officer, Officer Derrick

Calloway, were eventually able to detain Land and Martin.             As Land was getting

on the ground, he removed his shirt, which was black with “Security” written across

the back in yellow letters.        The officers also found a black baseball cap on the

sidewalk near where Land had been standing.            At the time of his arrest, Land had a

latex glove and $81 in cash on his person.          Martin had $897 in cash in his pocket

in three bundles that were folded and organized by denomination.

         While Corporal Diaz and Officer Calloway were with Land and Martin,

Officer John Wilson was responding to Corporal Diaz’s call to pursue Clay.

Officer Wilson saw Clay running in the opposite direction of his car.         He exited his

vehicle and began chasing Clay on foot.       Clay continued to run, and Officer Wilson

observed him raise his hand into the air.         Officer Wilson testified:

                I didn’t know if [Clay] was going to run like he was going
                to turn or if he was throwing something. And I thought -
                - I did think I saw something leave his hand, but the lights
                are - - it was dark; my overheads on my police car are on;
                everything’s flashing. 1




1
    App. to Appellee’s Answering Br. at 57.

                                              3
Clay eventually got into a parked vehicle, and Officer Wilson ordered him out of the

vehicle at gunpoint.   Clay had $280 in cash in his pocket, folded and organized by

denomination, and $1.17 in change.     Officers later recovered a black handgun on

the opposite side of a fence near where Officer Wilson observed Clay making a

throwing motion.

      Security footage from the Dollar General store showed Clay entering the store

with Land shortly before 9:00 p.m.    Land went to the back of the store and into the

office, where surveillance cameras recorded him putting on a clear glove and taking

money out of an employee’s wallet.     When the employee entered the office, Land

pointed a handgun at her and demanded the money from the register tills.        He then

made her get on the ground, and he left the office.      As Land was in the back of the

store, Clay placed several items on the counter.       Four seconds after Land left the

store, Clay followed without purchasing any of those items.

      On November 10, 2014, Clay was indicted on charges of Robbery in the First

Degree, two counts of Possession of a Firearm During the Commission of a Felony

(“PFDCF”), Aggravated Menacing, Conspiracy in the Second Degree, Possession

of a Firearm by a Person Prohibited (“PFBPP”), Possession of Ammunition by a

Person Prohibited (“PABPP”), Receiving a Stolen Firearm, Tampering with

Physical Evidence, and Resisting Arrest.       The Superior Court scheduled a joint trial

for Clay and his two co-defendants.    Before trial, Clay filed a motion to suppress


                                           4
evidence.    After a hearing, the Superior Court denied Clay’s motion.       Clay filed

motions to sever his case from Land and Martin and to sever his Person Prohibited

charges.    The court granted Clay’s request to sever the charges, but denied his

request to sever his trial from his co-defendants.      The State then filed an amended

indictment charging Clay with Robbery in the First Degree, PFDCF, Conspiracy in

the Second Degree, Tampering with Physical Evidence, and Resisting Arrest.        Clay

filed another motion to suppress which was also denied following a hearing.

      Trial went forward and at the conclusion of the State’s case, Clay moved for

judgment of acquittal on all charges.     The Superior Court denied Clay’s motion,

and at the end of the trial, the jury found Clay guilty of Robbery in the First Degree,

PFDCF, Tampering with Physical Evidence, Conspiracy in the Second Degree, and

Resisting Arrest.   Clay was sentenced to forty years and six months of Level V

incarceration followed by probation.      He then filed a notice of appeal with this

Court and the State filed its notice of cross-appeal.

                                III.   DISCUSSION

A. The Trial Court Did Not Abuse its Discretion by Denying Clay’s Motion to
             Sever His Trial from the Trial of his Co-defendants

      Clay’s first claim is that the trial court abused its discretion by denying his

motion to sever his trial from his co-defendants’ trial.           Motions to sever a

defendant’s trial from the trial of co-defendants “lie in the sound discretion of the

trial court and will not be overturned, absent a showing of prejudice by the

                                           5
defendant.”2       This Court “review[s] such motions to determine only if, under the

specific facts and circumstances of the case before us, the trial court abused its

discretion in denying the motion.” 3

                 As a general rule, the factors to be considered when
                 determining whether a motion for a separate trial should
                 be granted are: [1] problems involving co-defendant’s
                 extra-judicial statements; [2] an absence of substantial
                 independent competent evidence of the movant’s guilt; [3]
                 antagonistic defenses as between the co-defendant and the
                 movant; and [4] difficulty in segregating the State’s
                 evidence as between the co-defendant and the movant.4

         Clay contends that the second and fourth factors are applicable.    He claims

that the State did not offer substantial independent competent evidence of his guilt,

and that the jury had difficulty segregating the evidence between Clay and his co-

defendant, Land.        Both of Clay’s claims lack merit.

         The State presented evidence against Clay at the joint trial that would have

been admissible against Clay had he been tried separately from Land.         The video

surveillance from the Dollar General store showed Clay entering the store with Land

and leaving the store just after Land without purchasing the items he had placed on

the counter.      A police officer also saw Clay walking across the street with Land

shortly after the robbery, and when the officer approached the men, Clay ran.    Clay



2
    Skinner v. State, 575 A.2d 1108, 1119 (Del. 1990).
3
    Floudiotis v. State, 726 A.2d 1196, 1210 (Del. 1999).
4
    Manley v. State, 709 A.2d 643, 652 (Del. 1998).

                                                 6
continued to run from a second officer, who observed Clay throw his hands into the

air as though he was throwing something.                 Officers later found a gun near where

the officer made this observation.         Clay also does not dispute the fact that evidence

that Land committed the robbery would still be admissible at Clay’s trial had his

motion to sever been granted.            This evidence collectively constitutes substantial

independent competent evidence of Clay’s guilt that is attributable only to Clay, and

therefore, Clay did not suffer any prejudice because of the joint trial.           The record

reflects that the Superior Court appropriately exercised its discretion in denying

Clay’s motion to sever his trial.

       B. The Trial Court Erred by Denying Clay’s Motion for Judgment of
           Acquittal as to the Tampering with Physical Evidence Charge

         Clay contends that the trial court erred by denying his motion for judgment of

acquittal because the State failed to produce sufficient evidence to establish beyond

a reasonable doubt that Clay was guilty of the offenses of Robbery in the First

Degree, PFDCF, Conspiracy in the Second Degree, and Tampering with Physical

Evidence. This Court reviews an appeal from the denial of a motion for judgment

of acquittal de novo.5 Specifically, this court examines “whether any rational trier

of fact, viewing the evidence in the light most favorable to the State, could find a

defendant guilty beyond a reasonable doubt of all the elements of the crime.” 6 We


5
    Cline v. State, 720 A.2d 891, 892 (Del. 1998).
6
    Id.

                                                     7
conclude that the trial court did err in denying Clay’s motion for judgment of

acquittal as to the tampering charge, but did not err in denying the motion as to the

remaining charges.

         i. Accomplice Liability for Robbery in the First Degree and PFDCF

         Clay argues that the State did not produce sufficient evidence to establish his

liability as an accomplice on the first degree robbery charge. Specifically, Clay

argues that the State failed to establish that Clay and Land had a prior ongoing

relationship, or that Clay and Land came together at any point prior to being at the

Dollar General on the night of the robbery. Clay also contends that he cannot be

held liable as an accomplice as to the PFDCF charge because the State did not

present evidence that Clay knew that Land possessed a firearm during the robbery.

We reject these contentions.

         An individual is liable for the conduct of another when “[i]ntending to

promote or facilitate the commission of the offense the person . . . [a]ids, counsels

or agrees or attempts to aid the other person in planning or committing [the

offense].”7 While mere presence at the scene of a crime is not sufficient to prove

accomplice liability, “a simple word or gesture may be enough” to show that an

individual “actively encouraged the principal to commit the crime.” 8             Such



7
    11 Del. C. § 271(2)(b).
8
    Dalton v. State, 252 A.2d 104, 105 (Del. 1969).

                                                 8
encouragement must occur prior to or during the other person’s commission of the

crime.9

          At trial, the State presented a video showing Clay enter the Dollar General in

front of Land, and showing him exit the store seconds after Land without purchasing

the items he had placed on the counter. The State also presented the following

evidence: police saw Clay walking with Land and Martin shortly after the robbery;

Clay ran when an officer attempted to stop the men; Clay continued to run from a

second police officer; Clay made a throwing motion as he was running; and police

later recovered a gun near the area where Clay was observed making the throwing

motion. Viewing this evidence in the light most favorable to the State, a rational

juror could find that Clay intended to facilitate the commission of the robbery by

being Land’s “lookout” while he was in the back of the store, and that Clay knew

that Land was armed.

          ii. Conspiracy in the Second Degree

          Clay asserts that the State did not establish the elements of conspiracy because

the State did not offer evidence to show that Land and Clay planned to commit a

robbery nor did the State offer any evidence that the pair knew each other. Under

11 Del. C. § 512,

                A person is guilty of conspiracy in the second degree
                when, intending to promote or facilitate the commission of

9
    Id.

                                              9
             a felony, the person: (1) Agrees with another person or
             persons that they or 1 or more of them will engage in
             conduct constituting the felony or an attempt or
             solicitation to commit the felony; or (2) Agrees to aid
             another person or persons in the planning or commission
             of the felony or an attempt or solicitation to commit the
             felony; and the person or another person with whom the
             person conspired commits an overt act in pursuance of the
             conspiracy.

For the reasons given above in connection with accomplice liability, we are satisfied

that when the evidence is viewed in the light most favorable to the State, a rational

juror could find that Clay conspired with Land to commit the robbery and assisted

Land by acting as his lookout.

      iii. Tampering with Physical Evidence

      Clay contends that no rational juror could find him guilty of Tampering with

Physical Evidence because the evidence in this case, the gun, was immediately

retrievable and therefore was not successfully suppressed.   We agree.     In pertinent

part, 11 Del. C. § 1269 states:

             A person in guilty of physical evidence when . . .
             [b]elieving that certain physical evidence is about to be
             produced or used in an official proceeding or a prospective
             official proceeding, and intending to prevent its
             production or use, the person suppresses it by any act of
             concealment, alteration or destruction, or by employing
             force, intimidation or deception against any person.

As this Court stated in Harris v. State, “11 Del. C. § 1269 criminalizes neither

inchoate tampering nor tampering with items, but, rather, successful suppression of


                                         10
evidence.” 10       Where evidence is immediately retrievable by the police, an

individual has failed to actually suppress the evidence, and is therefore not guilty of

tampering under § 1269. 11           Evidence is immediately retrievable if the police

perceive the evidence or the defendant’s “act of suppression” through sight, sound

or otherwise.12      This includes when an officer observes an individual “making a

throwing motion during pursuit.”13

         In this case, Officer Wilson observed Clay make a throwing motion as he was

running away from the officer.         Police later recovered a gun in the area where Clay

made the throwing motion.          The gun was immediately retrievable because Officer

Wilson perceived Clay’s “act of suppression.”            Therefore, Clay failed to actually

suppress the evidence as is required for an individual to be found guilty of

Tampering with Physical Evidence under § 1269.                    We therefore reverse the

Superior Court’s denial of Clay’s motion for judgment of acquittal as to the

tampering charge.

      C. The Trial Court Did Not Abuse its Discretion When it Denied Clay’s
                              Motions to Suppress

         Clay argues that the Superior Court abused its discretion when it denied his

motions to suppress.         In particular, Clay claims that Corporal Diaz, the initial


10
     991 A.2d 1135, 1138 (Del. 2010) (emphasis added).
11
     Id. (citing Pennewell v. State, 977 A.2d 800, 803 (Del. 2009)).
12
     Id. at 1140-41.
13
     Id. at 1141 (citing Commonwealth v. Delgado, 679 A.2d 223, 225 (Pa. 1996)).

                                               11
officer that approached Clay, did not have a reasonable, articulable suspicion that

Clay had engaged in criminal activity to justify stopping him.          Clay also contends

that officers lacked probable cause to arrest Clay.        The Superior Court rejected both

of Clay’s motions to suppress, finding that the officers had reasonable suspicion to

stop Clay, and probable cause to arrest him.

         “We review the grant or denial of a motion to suppress for an abuse of

discretion.”14     “[T]his Court will defer to the factual findings of a Superior Court

judge unless those findings are clearly erroneous.” 15          We review the trial judge’s

application of the law to his or her factual findings de novo.16

         Clay first claims that the Superior Court erred when it denied his first motion

to suppress because Corporal Diaz did not have a reasonable, articulable suspicion

of criminal activity to justify stopping Clay and Martin simply because they were

walking near Land after the robbery. When “reviewing the denial of a motion to

suppress evidence based on an allegedly illegal stop and seizure, we conduct a de

novo review to determine whether the totality of the circumstances, in light of the

trial judge’s factual findings, support a reasonable articulable suspicion for the

stop.”17     “Reasonable suspicion has been defined as the officer’s ability to ‘point to




14
     Lopez-Vazquez v. State, 956 A.2d 1280, 1285 (Del. 2008).
15
     State v. Rollins, 922 A.2d 379, 382 (Del. 2007).
16
     Burrell v. State, 953 A.2d 957, 960 (Del. 2008).
17
     Lopez-Vazquez, 956 A.2d at 1285.

                                               12
specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant th[e] intrusion.’” 18 “A determination of reasonable

suspicion must be evaluated in the context of the totality of the circumstances as

viewed through the eyes of a reasonable, trained police officer in the same or similar

circumstances, combining objective facts with such an officer’s subjective

interpretation of those facts.”19

       When Corporal Diaz first encountered the men, they were running across the

street at an intersection near the Dollar General store just after it had been robbed.

Corporal Diaz testified that upon seeing his marked police vehicle, the trio began

walking quickly, and the Superior Court found that such “behavior is reasonably

seen as furtive.”20 The Superior Court judge also found that it was reasonable for

the officer to find Land, Clay and Martin’s “concerted activity” suspicious

considering a robbery had just taken place near where the men were seen, and one

of the men matched a description of the suspect. No other individuals were in the

area. Viewing the totality of the circumstances through the eyes of a trained police

officer in the same or similar circumstances, the foregoing facts as well as rational

inferences from those facts warranted Corporal Diaz’s effort to detain Clay. Thus,




18
   Coleman v. State, 562 A.2d 1171, 1174 (Del. 1989) (quoting Terry v. Ohio, 392 U.S. 1, 21
(1968)).
19
   Jones v. State, 745 A.2d 856, 861 (Del. 1999).
20
   Appellant’s Opening Br., Ex. A at 11.

                                              13
the Superior Court did not abuse its discretion when it denied Clay’s first motion to

suppress.

         Second, Clay contends that the Superior Court erred when it denied his second

motion to suppress because Officer Wilson did not have probable cause to arrest

him. “This Court has stated that a police officer has probable cause to arrest

someone when the officer possesses ‘information which would warrant a reasonable

man in believing that a crime has been committed.’” 21 The Superior Court found

that Officer Wilson did have probable cause to arrest Clay for the crimes of robbery

and conspiracy, and we agree.

         As discussed, shortly after the robbery an officer observed Clay walking near

the Dollar General store with a man who matched the description of the robbery

suspect. After a lawful encounter with that officer, Clay ran. As he was running,

he appeared to throw an object over a fence. Given the totality of the circumstances,

it was reasonable for Officer Wilson to believe that Clay was involved in the robbery

and therefore had probable cause to place him under arrest. The Superior Court did

not abuse its discretion by denying Clay’s second motion to suppress.




21
     Clendaniel v. Voshell, 562 A.2d 1167, 1170 (Del. 1989).

                                                14
     D. The Superior Court Abused its Discretion when it Required the State to
     Provide a Copy of a Department of Justice Intake Sheet and Copies of the
       Prosecutor’s Notes from Witness Interviews to Defense Counsel under
                        Superior Court Criminal Rule 26.2

         On cross-appeal, the State claims that the Superior Court abused its discretion

when it required the State to provide a redacted copy of the Department of Justice’s

intake document and copies of the prosecutor’s notes from witness interviews to

defense counsel under Superior Court Criminal Rule 26.2.                       “We review a trial

judge’s application of the Superior Court Rules relating to discovery for an abuse of

discretion.”22

         Rule 26.2 codifies the decision of the United States Supreme Court in Jencks

v. United States,23 and provides that following the direct examination of a witness,

the party who did not call the witness may move for the opposing party “to produce,

for the examination and use of the moving party, any statement of the witness that




22
   Oliver v. State, 60 A.3d 1093, 1095 (Del. 2013).
23
   353 U.S. 657 (1957). As this Court noted in Valentin v. State, “Superior Court Criminal Rule
26.2 substantively mirrors Federal Rule of Criminal Procedure 26.2” which was adopted to
incorporate the Jencks Act, 18 U.S.C. §3500, into the Federal Rules. 74 A.3d 645, 648 n. 10 (Del.
2013). In these situations, this Court i) reviews the Superior Court’s application of the Superior
Court Rules of Criminal Procedure for an abuse of discretion, and, if the Rules were misapplied
or an abuse of discretion occurred, ii) applies “a three-factor test that considers ‘(1) the centrality
of the error to the case; (2) the closeness of the case; and (3) the steps taken to mitigate the results
of the error.’” Id. at 649 (quoting Oliver, 60 A.3d at 1096–97). “We will reverse a conviction
on the basis of a discovery violation only if the defendant’s substantial rights are ‘prejudicially
affected.’” Id. (quoting Oliver, 60 A.3d at 1097).


                                                  15
is in their possession and that relates to the subject matter concerning which the

witness has testified.”24      A “statement” under the rule is defined as:

                 (1) A written statement made by the witness that is signed
                 or otherwise adopted or approved by the witness; (2) A
                 substantially verbatim recital of an oral statement made by
                 the witness that is recorded contemporaneously with the
                 making of the oral statement and that is contained in a
                 stenographic, mechanical, electrical, or other recording or
                 a transcription thereof; or (3) A statement, however taken
                 or recorded, or a transcription thereof, made by the witness
                 to a grand jury.25

         It was error for the Superior Court to require the State to provide Clay’s

counsel with a redacted copy of the Department of Justice’s intake document

following direct examination of Corporal Diaz.           The Superior Court reviewed the

intake document, in camera, and determined that certain portions of the intake

document were “beyond the purview of Rule 26 cross-examination” as “work

product and investigative techniques.” 26            The Superior Court also determined,

however, that certain portions of the document had to be disclosed under Rule 26.2

because the intake officer, Detective Cordrey, was “reporting what others have

reported to him, and in context, you can see where [Corporal Diaz’s] input is

reflected.”27




24
     Super. Ct. Crim. R. 26.2(a) (emphasis added).
25
     Super. Ct. Crim. R. 26.2(f).
26
     Appellee’s Answering Br., Ex. A at 3-4.
27
     Id. at 5.

                                                16
       While we understand the trial court’s commendable concern that defense

counsel have all the information necessary to address the State’s case, Rule 26.2

does not authorize the production of the intake sheet, as the intake sheet was not a

statement as that term is defined by the rule.28          As previously stated, a statement is

defined, in relevant part, as “a written statement made by the witness that is signed

or otherwise adopted or approved by the witness” 29 or “a substantially verbatim

recital of an oral statement made by the witness.” 30                Clay’s counsel sought the

intake document as Corporal Diaz’s statement following his direct examination.

However, Corporal Diaz was not present when the intake sheet was created, and he

did not sign, adopt or approve the intake document.31               Further, Diaz had not made

an oral statement that had been reduced to a substantially verbatim recital.                   Thus,

the Department of Justice’s intake sheet is not discoverable under Rule 26.2 because

it is not Corporal Diaz’s “statement” as defined under the rule.




28
   Additionally, Superior Court Criminal Rule 16 specifically provides that it “does not authorize
the discovery or inspection of reports, memoranda, or other internal state documents made by the
attorney general or other state agents in connection with the investigation or prosecution of the
case, or of statements by state witnesses or prospective state witnesses.” Super. Ct. Crim. R.
16(a)(2).
29
   Super. Ct. Crim. R. 26.2(f)(1).
30
   Super. Ct. Crim. R. 26.2(f)(2).
31
   The prosecutor explained that during an intake, the intake officer, in this case Detective Cordrey,
gives a general narrative of events to an intake paralegal who will then type notes into a document
called the Department of Justice Intake Sheet. The narrative typically reflects what is written in
the police report.

                                                 17
         The Superior Court also committed error by requiring the prosecutor to

produce notes she had taken during witness interviews in preparation for the

suppression hearings and trial to Clay’s defense counsel under Rule 26.2.            The trial

court initially ordered the prosecutor to turn over notes she had taken during her

interview with Karl Woody, the custodian of the Dollar General store surveillance

video from the night of the robbery.           The trial court denied the prosecutor’s request

that the court review her notes in camera, reasoning that the prosecutor should have

had an investigator present during the interview.           At a later point, acknowledging

that defense counsel would likely make a request under Rule 26.2 for every witness,

the prosecutor made the trial court aware that she possessed notes from interviews

with several police officers, which she took when preparing for the suppression

hearings and trial.      The prosecutor reiterated that she objected to turning over her

notes, but wanted to ensure that she was complying with the trial court’s earlier

ruling.     The trial court ordered the prosecutor to turn over the notes.

         The notes that the prosecutor was required to turn over do not qualify as

witness statements under Rule 26.2(f).             During the trial court’s initial discussion

with the prosecutor regarding the notes from her interview with Mr. Woody, the

prosecutor stated that she “read the notes to the witness and he confirmed their

accuracy.” 32      However, the notes were merely notes and were not a statement


32
     App. to Appellee’s Answering Br. at 68.

                                                 18
signed, adopted or approved by the witness.    The prosecutor also stated that none

of her notes were substantially verbatim recitations of the witness’s oral statement.

The record supports the prosecutor’s characterization of her notes as to all of the

witnesses.   Therefore, the Superior Court abused its discretion by ordering that the

prosecutor turn over her notes as qualifying witness statements under Rule 26.2.

                              IV.   CONCLUSION

      For the foregoing reasons, we REVERSE in part and AFFIRM in part the

judgment of the Superior Court.




                                         19
