        IN THE SUPREME COURT OF THE STATE OF DELAWARE

BRANDON WILLIAMS,                     §
                                      §     No. 523, 2013
     Defendant Below-                 §
     Appellant,                       §     Court Below: Superior Court
                                      §     of the State of Delaware in and
v.                                    §     for New Castle County
                                      §
STATE OF DELAWARE,                    §     No. 1210009895
                                      §
     Plaintiff Below-                 §
     Appellee.                        §
                                      §

                          Submitted: May 28, 2014
                           Decided: July 25, 2014

Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.

Upon appeal from the Superior Court. AFFIRMED.


Nicole M. Walker, Esquire, Office of the Public Defender, Wilmington, Delaware
for Appellant.

Maria T. Knoll, Esquire, State of Delaware Department of Justice, Wilmington,
Delaware, for Appellee.
RIDGELY, Justice:

      Defendant-Below/Appellant Brandon Williams appeals from a judgment of

convictions in the Superior Court of Burglary Second Degree, Unlawful Use of a

Credit Card, Misdemeanor Theft, and Resisting Arrest. The State alleged that

Williams entered the home of Jeffrey Fisher through an open window and stole his

wallet from his home office. Police officers were alerted and initiated a search of

the area using a K-9 scent-tracking dog. During the search, a dispatcher told the

officers about a white male attempting to break into a nearby BP gas station.

Officers investigated and after a foot chase of that man, who was later identified as

Williams, officers found him in possession of Fisher’s wallet.           The wallet

contained a receipt for a purchase with Fisher’s credit card minutes earlier at a

nearby drug store. Store surveillance video confirmed the use of the card by

Williams.

      Williams did not object at trial to the evidence of the dispatch to the BP

station. In his defense, Williams conceded that he unlawfully used Fisher’s credit

card and that he resisted arrest.    But he denied that he was the person who

burglarized the Fishers’ home. Instead, Williams claimed that he found the wallet

and that he had been too intoxicated to commit the burglary. The jury found

Williams guilty of all charges. The trial court sentenced Williams to fifteen years




                                         2
of imprisonment as a habitual offender pursuant to 11 Del. C. § 4214(a). This

appeal followed.

      Williams raises two claims on appeal. He first contends that the trial court

committed plain error when it allowed the State to emphasize through four police

officers and closing argument that Williams was arrested in this burglary case after

the police responded to a call of an attempted burglary at the BP station. Second,

Williams claims that the trial court plainly erred and unfairly bolstered police

testimony when it provided an expert-witness jury instruction that referred to

police officers because there was no qualified expert who testified at trial.

      We find no merit to Williams’ appeal. The record shows that Williams’ trial

counsel did not object to the evidence of the dispatch to the BP station for tactical

reasons. Defense counsel also referred to the dispatch call during her closing

argument in support of Williams’ defense. This tactical decision constitutes a

waiver that precludes plain error review. Even if Williams had objected or if

defense counsel had not used the dispatch call as part of a trial strategy, any error

in admitting the hearsay statements was harmless. We also find that the K-9

handler testified as an expert witness, which means that the expert-witness jury

instruction was proper. Accordingly, we affirm.




                                          3
                           Facts and Procedural History

      On the evening of October 14, 2012, Jeffrey Fisher heard a noise in his

computer room while he and his wife were at home. He went to investigate the

noise because he thought that his cat escaped through an open window. When he

looked out the window for the cat, he saw a tall male running. Although no

computer equipment was taken, Fisher’s wife called 911 to report the incident.

Fisher later learned that his wallet, which he normally left on the office desk, was

missing.

      Police were dispatched to the Fisher home. Shortly thereafter, dispatch

advised nearby officers of a tall, white male at a local BP station attempting to kick

in the front window or break into the business. Officer Louis Torres responded to

the BP call and parked his car adjacent to the station. Officer Torres saw, a tall,

shirtless, white male, crossing the BP parking lot. When that man, who was later

identified as Williams, saw Officer Torres, he sprinted away.         Officer Torres

chased Williams, but he lost sight of him.

      Minutes later, Officer Torres found Williams straddling a fence. Torres

ordered Williams to get off the fence and surrender, but Williams refused and

hopped the fence. Other officers apprehended Williams on the other side of the

fence. Police found a wallet on the ground near Williams containing Fisher’s

driver’s license, credit cards, and a receipt from a nearby Rite Aid. Detectives later


                                          4
obtained surveillance video from the Rite Aid of Williams entering the store,

approaching the register, and spreading out multiple credit cards on the counter

before selecting one and purchasing a drink.

       Williams was charged with burglary second degree, misdemeanor theft,

unlawful use of a credit card, and resisting arrest. At trial, four officers testified to

the call from dispatch about the incident at the BP station.                    Before jury

deliberations, the trial court provided an expert witness instruction without

objection.    The instruction included a reference to law enforcement officer

testimony. The jury convicted Williams on all counts. The trial court sentenced

Williams to fifteen years at Level V incarceration, suspended after twelve years for

decreasing levels of supervision. This appeal followed.

                                         Discussion

       Williams contends that the trial court plainly erred, first, when it allowed the

State to introduce inadmissible hearsay testimony from the police dispatch and,

second, when it provided an expert-witness jury instruction without qualifying an

expert in the case. Because Williams failed to raise these claims in the proceeding

below, Williams must show plain error to have his conviction overturned on

appeal.1 “Under the plain error standard of review, the error complained of must

be so clearly prejudicial to substantial rights as to jeopardize the fairness and

1
 See Turner v. State, 5 A.3d 612, 615 (Del. 2010) (quoting Del. Sup. Ct. R. 8; Monroe v. State,
652 A.2d 560, 563 (Del. 1995)).
                                              5
integrity of the trial process.”2 “[P]lain error is limited to material defects which

are apparent on the face of the record; which are basic, serious and fundamental in

their character, and which clearly deprive an accused of a substantial right, or

which clearly show manifest injustice.”3

       When police officers testify about an investigation, “[b]ackground

information may be necessary to give the jury a complete picture at trial and to

ensure the jury is not confused in a way that would be unfavorable to the

prosecution.”4 Such information should be primarily used to “fill in gaps” and

“help the jury understand the case in context.”5 But problems can occur where a

statement can serve more than one purpose. As we have stated:

          In criminal cases, an arresting or investigating officer should
          not be put in the false position of seeming just to have
          happened upon the scene; he should be allowed some
          explanation of his presence and conduct. His testimony that he
          acted “upon information received,” or words to that effect,
          should be sufficient. Nevertheless, cases abound in which the
          officer is allowed to relate historical aspects of the case, replete
          with hearsay statements in the form of complaints and reports,
          on the ground that he was entitled to give the information upon
          which he acted. The need for the evidence is slight, the
          likelihood of misuse great.6



2
  Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (citing Dutton v. State, 452 A.2d 127,
146 (Del. 1982)).
3
  Id. (citing Bromwell v. State, 427 A.2d 884, 893 n.12 (Del. 1981)).
4
  Sanabria v. State, 974 A.2d 107, 112 (Del. 2009).
5
  Id. (quoting People v. Resek, 821 N.E.2d 108, 109–10 (N.Y. 2004)).
6
  Johnson v. State, 587 A.2d 444, 448 (Del. 1991) (quoting Edward W. Cleary, McCormick on
Evidence § 249, at 734 (3d ed. 1984)).
                                             6
       Where evidence can be used for more than one purpose, the “preferable

practice” is to allow the State to introduce the background evidence based “upon

information received” rather than introducing specific statements.7 Alternatively,

the trial court can provide a limiting instruction explaining “the purpose for which

the testimony is received” in order to “avert[] any prejudice to the defendant.”8

Nonetheless, where the trial court fails to limit the hearsay statements or provide a

limiting instruction, such error is still subject to harmless error review.9

       Williams argues that plain error occurred here. In Wright v. State, we

explained that “[t]he plain error standard of appellate review is predicated upon the

assumption of oversight.”10 But where “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.”11 And we have

consistently held that a “conscious decision to refrain from objecting at trial as a

tactical matter” will preclude any plain error appellate review.12




7
   McNair v. State, 703 A.2d 644, 1997 WL 753403, at *2 (Del. 1997) (quoting McCormick on
Evidence, supra, § 249, at 734).
8
  Sanabria, 974 A.2d at 116 (quoting Curry v. Burge, 2004 WL 2601681, at *25 (S.D.N.Y. Nov.
17, 2004)).
9
  See Johnson, 587 A.2d at 451.
10
   Wright v. State, 980 A.2d 1020, 1023 (Del. 2009) (citing Tucker v. State, 564 A.2d 1110, 1118
(Del. 1989)).
11
   Id. (citing Czech v. State, 945 A.2d 1088, 1097 (Del. 2008)).
12
   Id.; e.g., Czech, 945 A.2d at 1098; Crawley v. State, 929 A.2d 783, 2007 WL 1491448, at *3
(Del. 2007); Tucker, 564 A.2d at 1125.
                                               7
         Despite Williams’ plain error claim, we find that plain error review of the

officers’ hearsay statements is inapplicable.             The record shows that defense

counsel did not object to the admission of this hearsay evidence for tactical

reasons.     Specifically, defense counsel argued that dispatch’s description of

Williams at the BP station was not the same as Fisher’s description.13 Because

Williams’ failure to object to the admission of the officers’ hearsay statements

appears to have been a conscious, tactical choice, any plain error review was

waived. Given the lack of an objection and the strategic use of the dispatch’s

statements in closing arguments, Williams’ first claim of plain error is without

merit.

         Even if Williams had objected below, any error in admitting the hearsay

evidence was harmless beyond a reasonable doubt. Our harmless error standard

for improperly admitted evidence is well-established.                “[W]here the evidence

exclusive of the improperly admitted evidence is sufficient to sustain a conviction,


13
 In her closing argument, defense counsel told the jury:
       Later when the BP calls, or someone calls and said there’s someone at the BP
       kicking either a gas pump or the door to the building, and that person is a white
       male with dark hair, don’t confuse the two descriptions. And for one second let’s
       talk about tall. I am not tall. Detective Sendek is six-feet tall, he told you that
       yesterday. Sergeant Norris is six-feet tall. I didn’t ask Jeff Fisher how tall he
       was, but you were able to observe him. He said a tall man. Detective Sendek first
       wanted to tell you that Brandon Williams is the same height he is until, once
       again, he had to be shown a piece of paper he completed and tell you that it said
       Brandon Williams was five-feet-eight-inches tall. So ask yourself if somebody
       the size of Jeff Fisher is going to describe somebody who is five-feet-eight-inches
       tall as tall.
Appellant’s Op. Br. Appendix at A45.
                                                8
error in admitting the evidence is harmless.”14 Harmless error and plain error are

distinct but analogous doctrines. Harmless error is “[a]ny error, defect, irregularity

or variance which does not affect substantial rights.”15             Whereas plain error

concerns “errors or defects affecting substantial rights [that] may be noticed

although they were not brought to the attention of the court.”16 “[T]he difference

between harmless error and plain error is that for plain error, ‘it is the defendant

who bears the burden of persuasion with respect to prejudice.’”17                  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.18 Even assuming error in the cumulative use

of the dispatch call, that error was harmless.

       In Sanabria v. State, we reversed a conviction where a dispatcher’s out-of-

court statements were introduced, and we “determined that the trial judge in

Sanabria had erred by failing to provide a limiting instruction and in admitting

testimony in violation of the Confrontation Clause of the Sixth Amendment.”19

This was because the out-of-court statements in that case were “not merely

14
   Johnson, 587 A.2d at 451 (quoting Collins v. State, 420 A.2d 170, 177 (Del. 1980)).
15
   Super. Ct. Crim. R. 52(a).
16
   Super. Ct. Crim. R. 52(b).
17
   Bullock v. State, 775 A.2d 1043, 1055 n.43 (Del. 2001) (Veasey, C.J., concurring) (quoting
United States v. Olano, 507 U.S. 725, 734 (1993)).
18
   Dawson v. State, 608 A.2d 1201, 1204 (Del. 1992) (citing Chapman v. California, 386 U.S.
18, 24, 26 (1967)).
19
   Holmes v. State, 11 A.3d 227, 2010 WL 5043910, at *5 (Del. 2010) (citing Sanabria, 974
A.2d at 116–20).
                                             9
cumulative evidence,” but instead were “a principal factor in [the] conviction.”20

Unlike Sanabria, the statements relating to the alleged attempted burglary at the

BP station were not a principal factor in Williams’s conviction. Rather, the record

shows that the sequence of events and timeline were the principal factors

supporting Williams’ conviction.

         At roughly 11 p.m., Fisher heard a noise in his office and saw a tall male

running from his home.            By 11:14, Williams had entered the Rite Aid and

purchased a beverage three minutes later. Fisher’s wife called 911 at 11:18, and

dispatch relayed information about the Fisher burglary at 11:20. Approximately

seven minutes later, dispatch advised officers that there was a disturbance

involving a tall, white male at the BP station, which was a quarter mile away from

the Fishers’ home. Officer Torres went to the BP station, where he first saw

Williams at 11:36. Williams fled and a foot chase ensued. Officers ultimately

captured Williams at 11:44 p.m.

         In addition to this timeline, Williams was found at the time of his arrest with

Fisher’s wallet, driver’s license, and credit cards. Williams used one of the cards

to make an unauthorized purchase as shown by the surveillance video and the

receipt. Evidence of his flight was also relevant to show consciousness of guilt.

This evidence was sufficient to sustain the conviction.          Because the dispatch


20
     Sanabria, 974 A.2d at 120.
                                            10
statement about the events at the BP station was not a principal factor in the

conviction, any error in the admission of the dispatch statements was harmless.

       Williams next claims that the trial court unfairly bolstered the testimony of a

police officer when it issued an expert-witness jury instruction because there was

no expert witness in the case. “Implicit in every jury instruction is the fundamental

principle that the instruction applies to the specific facts in that particular case and

contains an accurate statement of the law.”21 This Court will reverse only “if the

instructions ‘undermined . . . the jury’s ability to intelligently perform its duty in

returning a verdict.’”22

       In Smith v. State, we outlined the standard to determine the propriety of a

jury charge:

          In evaluating the propriety of a jury charge, we view the jury
          charge as a whole with no individual statement read in a
          vacuum. “The standard is not one of perfection; some
          inaccuracies and inaptness in statement are to be expected in
          any charge.” Even where there are some inaccuracies in a
          charge, we will reverse only if the alleged deficiency in the jury
          instructions undermined the jury’s ability to “intelligently
          perform its duty in returning a verdict.”23

       Here, the trial judge gave an expert witness instruction, providing:



21
   Bullock v. State, 775 A.2d 1043, 1053 (Del. 2001).
22
   Moye v. State, 988 A.2d 937, 2010 WL 376872, at *2 (Del. 2010) (omission in original)
(quoting Bullock, 775 A.2d at 1047).
23
   Smith v. State, 913 A.2d 1197, 1241–42 (Del. 2006) (footnotes and internal quotation marks
omitted) (quoting Bullock, 775 A.2d at 1047, 1056 n.47; Floray v. State, 720 A.2d 1132, 1138
(Del. 1998); Sirmans v. Penn, 588 A.2d 1103, 1104 (Del. 1991)).
                                             11
          A witness who has special knowledge in a particular science,
          profession or subject is permitted to testify about that
          knowledge and to express opinions within the witness’s field of
          expertise to aid you in deciding the issues. You should give
          expert testimony the weight you consider appropriate. In
          addition to the factors already mentioned for weighing the
          testimony of any other witness, you may consider the expert’s
          qualifications, the reasons for the expert opinion, and the
          reliability of the information assumptions upon which it is
          based. Also, you must not give any more or less credit to a law
          officer’s testimony simply because he is a law officer.24
Williams did not object to this instruction. Nor would an objection have been

sustained if made.       The record demonstrates that the trial court did qualify

Corporal Breitigan as an expert witness to testify about the proper handling of a

K-9 police dog.

       Prior to Corporal Breitigan’s testimony, defense counsel argued that

Corporal Breitigan was not listed as an expert witness in violation of the rules of

discovery. The trial court overruled the objection, explaining that it did not “see

any violation of a rule of discovery” or “any prejudice assuming that there were a

violation.”25 The trial court further ruled that it was “satisfied” that Corporal

Breitigan could “testify about the dog’s training and what [the dog] did.”26 He did

so. Because Corporal Breitigan was qualified as an expert and testified as one, the




24
   Appellant’s Op. Br. Appendix at A52.
25
   Id. at A18.
26
   Id.
                                          12
jury instruction concerning his expert testimony could not have been erroneous or

prejudicial. Thus, Williams’ second claim also lacks merit.

                                   Conclusion

      The judgment of the Superior Court is AFFIRMED.




                                        13
