            IN THE SUPREME COURT OF THE STATE OF DELAWARE

PIERRE DOWNS,                             §
                                          §
              Defendant Below,            §   No. 220, 2018
              Appellant,                  §
                                          §   Court Below—Superior Court
      v.                                  §   of the State of Delaware
                                          §
STATE OF DELAWARE,                        §
                                          §   Cr. ID. K1610003784A&B
              Plaintiff Below,            §
              Appellee.                   §

                           Submitted: January 9, 2018
                           Decided:   March 4, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

                                     ORDER

      This 4th day of March 2019, after careful consideration of the parties’ briefs

and the record on appeal, it appears to the Court that:

      (1)     Pierre Downs appeals his convictions of first-degree robbery, third-

degree assault, theft of a firearm, second-degree conspiracy, and possession of a

firearm by a person prohibited. The charges stemmed from an assault and robbery

of Jose Acobe outside the Golden Fleece Tavern on Loockerman Street in Dover.

      (2)     Downs raises two issues on appeal. First, he argues that the Superior

Court erred by admitting a hearsay statement relating to whether the SUV that

Downs raided after the assault of Acobe contained a gun—the alleged theft of which

formed the basis of the firearm-theft and person-prohibited charges—and that such
error was not harmless. Second, Downs argues that there was insufficient evidence

to support four of his convictions.

      (3)     We reject Downs’ insufficient evidence claims, but we agree that the

Superior Court erred by admitting the hearsay statement, and we conclude that the

error was not harmless. Accordingly, we affirm Downs’ convictions of first-degree

robbery, third-degree assault, and second-degree conspiracy and vacate in part

Downs’ convictions of theft of a firearm and possession of a firearm by a person

prohibited.

                                        ***

      (4)     On the evening of September 23, 2016, Acobe went to the Golden

Fleece Tavern. Acobe drove a white Chevrolet Blazer (“SUV”) that he had borrowed

from his aunt and parked it across the street from the bar. After ordering a beer,

Acobe left the bar and returned to the SUV to apply cologne. While outside, Acobe

noticed a group of men looking at him strangely. After this encounter, Acobe

returned to the bar to pay for his beer. Several of the men from outside then entered

the Golden Fleece and stared at Acobe. The men from outside then left the Golden

Fleece.

      (5)     Feeling uncomfortable and scared, Acobe also decided to leave the

Golden Fleece. But as soon as Acobe walked into the street, a man punched him in

the head, knocking him unconscious. When Acobe regained consciousness, he saw



                                         2
a crowd of people standing around him and discovered that his cell phone and wallet

were missing.

         (6)     Emergency medical technicians and Corporal Brian Wood of the Dover

Police Department responded to the scene. While emergency medical personnel

attended Acobe, a Golden Fleece employee told Corporal Wood that something had

been taken from the SUV. Upon approaching the SUV, Corporal Wood noticed that

the driver’s side rear door was open a couple of inches. Corporal Wood inspected

the SUV and found a box of shotgun shells on the driver’s seat.

         (7)     Meanwhile, Acobe was taken to Kent General Hospital.         After

inspecting the SUV, Corporal Wood went to the hospital to interview Acobe. Acobe

told Corporal Wood that “unknown black males had struck him and taken his

phone.”1

         (8)     Upon his return to police headquarters, Wood reviewed footage from

surveillance cameras near the Golden Fleece. The footage showed men walking

from the front of the tavern to Acobe’s SUV, entering Acobe’s SUV, removing an

object, and leaving. The footage then showed the men split up and enter two

vehicles: a silver Mercedes-Benz and an orange Dodge Charger. After reviewing the

footage, Corporal Wood turned the investigation over to Detective Christopher

Bumgarner.


1
    App. to Am. Op. Br. at A291 (“A__” hereafter).

                                                 3
           (9)   Detective Bumgarner examined more surveillance footage that had

been captured earlier that night. In the footage, he saw a group of people, one of

whom he identified to be Downs, walk to Irish Mike’s, another bar. When the group

left Irish Mike’s, they headed toward the tavern. As they were walking, one of the

members of the group peered inside Acobe’s SUV.

           (10) In the footage, Detective Bumgarner saw a few members of the group

entered the Golden Fleece while Downs and other members of the group waited

outside. As mentioned, Acobe then walked out of the Golden Fleece only to be

punched in the head by an assailant. Detective Bumgarner identified that assailant

as Downs. After Acobe fell, Detective Bumgarner could not see whether Downs and

the group were kicking Acobe or taking his belongings due to a light pole obscuring

the camera’s view.

           (11) Following the assault, Downs and two others from the group

approached Acobe’s SUV.          Based on his training and experience, Detective

Bumgarner thought that the two others were acting as lookouts for Downs. One of

these lookouts opened the front door of the SUV while Downs opened the back door

and removed “a large, long object.”2 Detective Bumgarner believed the object was

either a rifle or a shotgun based on the butt, barrel protrusion, and shape of the object,

but also acknowledged that it could have been a BB gun or other air rifle. Downs


2
    A72.

                                            4
then walked away from the SUV at a brisk pace, directly passing under a camera at

Bradford and Loockerman Streets which allowed Detective Bumgarner to identify

him.

       (12) Other cameras showed the orange Charger and the silver Mercedes-

Benz drive away. The Mercedes-Benz followed the Charger until the Mercedes-

Benz stopped at a townhouse on Reed Street. There, a person got out of the

Mercedes-Benz, took out a long object,3 walked to the townhouse, and left the

townhouse without the object. The Charger stopped at Downs’ home.

       (13) After reviewing the surveillance footage, Detective Bumgarner

interviewed Acobe at his home and photographed his injuries. Acobe told Detective

Bumgarner that after his assault, he “discovered that his cousin, Fruto Cantres, that

his [Cantres’] shotgun had been removed from the vehicle.” 4 Additionally, Acobe

told Detective Bumgarner that Cantres “had left [a shotgun] in the vehicle and

described it as a 12-gauge shotgun.”5

       (14) While at Acobe’s home, Detective Bumgarner collected approximately

fifteen 12-gauge shotgun shells and a shotgun magazine. After further investigation,




3
  Although Detective Bumgarner testified that the object appeared to be a rifle or a shotgun, having
reviewed the video, we believe that a reasonable juror could reject that characterization.
4
  A266.
5
  A273.

                                                 5
Detective Bumgarner discovered that Cantres had purchased a Marlin Model 55, 12-

gauge shotgun in Newark, Delaware, about two years before Acobe’s assault.

          (15) A week after the robbery, Corporal Wood found the orange Charger

parked outside of Downs’ home and the silver Mercedes-Benz parked down the

street.

          (16) The police searched Downs’ home pursuant to a warrant but they did

not find Acobe’s cell phone, wallet, or Cantres’ shotgun.

          (17) On January 1, 2018, Cantres died of a chronic illness.        He was

accordingly unable to testify at Downs’ subsequent trial.

                                         ***

          (18) On appeal, Downs first argues that the Superior Court erred by

admitting the following testimony by Detective Bumgarner regarding what Acobe

had told him during the investigation: “[Acobe] then later discovered that his cousin,

Fruto Cantres, that his shotgun had been removed from the vehicle.” 6

          (19) At trial, before Detective Bumgarner testified, Acobe took the stand.

Acobe testified that he learned that Cantres never recovered his shotgun, even

though Acobe also testified that he “never” got the SUV back after the assault. And

Acobe testified that “I don’t remember” in response to the question “In the car that

evening was there a firearm?” These statements gave Downs reason to believe that


6
    Am. Op. Br. 4; A266.

                                           6
Detective Bumgarner would offer inadmissible double hearsay when testifying

about his interview of Acobe.

       (20) According to Downs, Detective Bumgarner’s testimony was

inadmissible double hearsay because Acobe’s statement to Detective Bumgarner was

not based on Acobe’s personal knowledge, but rather on a later out-of-court

statement made by Cantres to Acobe that Cantres’ shotgun had been in the SUV.7

Downs’ contention regarding the basis of Acobe’s knowledge of this fact was borne

out by Acobe’s later testimony that he had no personal knowledge that there was a

shotgun in the SUV and that he only later learned from Cantres that Cantres’ shotgun

was in the SUV that night.8

       (21) The Superior Court nevertheless admitted Detective Bumgarner’s

testimony because it thought that the testimony was admissible via 11 Del. C.

§ 3507, which provides that “the voluntary out-of-court prior statement of a witness

who is present and subject to cross-examination may be used as affirmative evidence

with substantive independent testimonial value.”


7
  We note that the State initially offered Bumgarner—not Acobe—to testify as to Acobe’s prior
statement. A263. By the time Acobe testified as to the contents of his prior statement, the Superior
Court had already admitted the prior statement.
8
  A322. In fairness to the Superior Court, Acobe gave that testimony after the Superior Court had
already ruled on the hearsay objection. Still, we think that given the testimony that had been
presented, Acobe’s comments to Detective Bumgarner were more likely than not to have been
hearsay, and if there were questions as to the admissibility of the testimony in question, the
Superior Court could have held a hearing outside of the presence of the jury to determine if that
was the case.



                                                 7
       (22) Ordinarily, we review a trial court’s evidentiary rulings for abuse of

discretion. But we review de novo rulings where the alleged error infringes upon a

constitutionally protected right—here, the right to confrontation. If we find error,

we next examine whether the error was harmless. 9 A constitutional error is harmless

only if the State has proven “beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained.”10 We must reverse if we find that the

error was not harmless.11

       (23)     “If double hearsay is being offered into evidence, each aspect must

qualify independently as an exception to the hearsay rule.” 12 Section 3507 acts as

such an exception, permitting the admission of out-of-court statements of a present

witness available for cross-examination.




9
  We automatically reverse where a constitutional error is structural, Brice v. State, 815 A.2d 314,
324 (Del. 2003) (discussing the six types of structural error, each inapplicable here), overruled on
other grounds by Rauf v. State, 145 A.3d 430 (Del. 2016), but otherwise, we conduct a harmless
error analysis.
10
   Dawson v. State, 608 A.2d 1201, 1204 (Del. 1992).
11
   Van Arsdall v. State, 524 A.2d 3, 11 (Del. 1987) (quoting Chapman v. California, 386 U.S. 18,
24 (1967)); Williams v. State, 141 A.3d 1019, 1035 (Del. 2016).
12
   Demby v. State, 695 A.2d 1152, 1162 (Del. 1997).



                                                 8
       (24) Although § 3507 creates an exception to one layer of hearsay, it does

not permit a court to admit otherwise-inadmissible embedded hearsay within the

§ 3507 statement13—in this case, a statement from a deceased declarant, Cantres.

       (25) With respect to Detective Bumgarner’s testimony, § 3507 provided an

exception for the first layer of hearsay—Acobe’s out-of-court statement to Detective

Bumgarner—because Acobe was present and available for cross-examination. But

§ 3507 does not cover the second layer of hearsay—Cantres’ presumed out-of-court

statement to Acobe. Neither would Cantres’ presumed statement to Acobe have

satisfied any other hearsay exception, such as the exception for statements made

under the belief of imminent death. Accordingly, Detective Bumgarner’s testimony

regarding what Acobe presumably learned from Cantres about the shotgun is

inadmissible hearsay, and its admission deprived Downs of his constitutional right

to confrontation.

       (26) The State argues on appeal that the Superior Court did not err in

admitting Detective Bumgarner’s testimony because § 3507(b) does not require that

the witness offer consistent trial testimony. But § 3507(b) does not render double


13
   For example, in Demby, the Superior Court, applying § 3507, admitted the victim’s out-of-court
statement to a police officer that a third party had told the victim that the third party saw the
defendant shoot the victim. We reversed, holding that “any hearsay within [the victim’s] section
3507 statement was inadmissible unless it was permitted by an exception to the hearsay rule.” Id.
at 1161. Because the victim herself had not seen who shot her, the victim’s out-of-court statement
telling the officer what the third party told her constituted hearsay within hearsay. Therefore, “the
statement attributed to [the third party was] inadmissible hearsay included within hearsay.” Id.
(quoting D.R.E. 805).

                                                 9
hearsay admissible, which is the issue in this case. Furthermore, the testimony in

this case is not fundamentally inconsistent. Therefore, § 3507(b) is irrelevant.

       (27) When conducting harmless-error analyses after finding error in the

admission of evidence, we distinguish between garden-variety evidentiary missteps

and “evidentiary errors of constitutional magnitude.” Where the error did not

implicate constitutional rights, “[t]he well-established rule is that where the evidence

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

error in admitting the evidence is harmless.”14 But where, as here, the error violated

protected constitutional rights, an error is harmless only if the State proves “beyond

a reasonable doubt that the error complained of did not contribute to the verdict

obtained.”15

       (28) We cannot conclude beyond a reasonable doubt that the jury’s verdict

would have been the same without Detective Bumgarner’s testimony. Although the

jurors viewed the videos themselves, 16 it is reasonable to think that their viewing

was influenced by Detective Bumgarner’s testimony on whether there was in fact a

shotgun in the SUV. That fact was critical and testimony regarding that fact likely

affected the jury’s determination that the item Downs removed was a shotgun.



14
   Johnson v. State, 587 A.2d 444, 451 (Del. 1991).
15
   Dawson v. State, 608 A.2d 1201, 1204 (Del. 1992); Johnson, 587 A.2d at 451; Delaware v. Van
Arsdall, 475 U.S. 673 (1986).
16
   To be sure, the footage from the Bradford and Loockerman intersection camera depicted Downs
walking away from the SUV with an object that reasonable jurors might conclude was a long gun.

                                             10
       (29) There was a substantial gap in the State’s proof of whether there was a

shotgun in the SUV. At trial, Detectives Bumgarner and Michael Wilson, another

investigating officer, acknowledged that they could not say whether the object taken

from the SUV might have been—besides a shotgun—a BB gun, pellet rifle, or air

rifle.17 None of those latter weapons are firearms within the meaning of the firearms

charges that Downs faces.18

       (30) During its closing statement, the State itself highlighted that this gap in

its case was filled with the challenged hearsay statement: “How do you know it’s

really a gun? . . . What is the evidence to support that? First, Mr. Acobe told the

officers initially, yes, my cousin’s shotgun was in the car and it was stolen.” 19

       (31) Absent Detective Bumgarner’s testimony as to what Cantres told

Acobe, we think a reasonable juror could very well have entertained reasonable

doubt as to whether Downs took a firearm from the SUV or instead a non-firearm

object and therefore could have voted to acquit Downs on the firearms charges.

       (32) Because a reasonable juror might have voted to acquit and thus changed

the outcome of the trial, we cannot find that the error was harmless beyond a

reasonable doubt. We accordingly vacate Downs’ convictions for theft of a firearm

and possession of a firearm by a person prohibited.


17
   See A134, A190.
18
   See 22 Del. C. § 222(12) (“‘Firearm’ . . . does not include a BB gun.”).
19
   A437.

                                                11
                                              ***

       (33) Downs also raises insufficient evidence challenges as to his convictions

of first degree robbery and second degree conspiracy.20

       (34) This Court reviews “claims of insufficient evidence de novo[] to

determine whether a rational trier of fact, viewing the evidence in the light most

favorable to the State, could find the defendant guilty beyond a reasonable doubt.”21

We note that this is a substantially different standard of review than what we applied

in the harmless-error analysis above.

       (35) As recited above, there were substantial facts, each well-established by

admissible and admitted evidence, that support Downs’ convictions of the robbery,

assault, and conspiracy charges.

       (36) We also note that Downs’ argument that the State failed to prove

conspiracy because “there was no evidence that [he] intended to aid or abet anyone

in committing a theft of personal property from [Acobe]”22 is misplaced. It appears

that Downs has conflated the requirements of conspiracy with those of accomplice

liability; intent to aid or abet someone else is not a required element of conspiracy.23



20
   Downs also raises insufficient evidence challenges as to his convictions of theft of a firearm
possession of a firearm by a person prohibited, but because we vacate those convictions due to the
hearsay issue, we need not reach whether they were supported by sufficient evidence.
21
   Neal v. State, 3 A.3d 222, 223 (Del. 2010).
22
   Am. Op. Br. 26.
23
   11 Del. C. § 511–13 (conspiracy defined; conspiracy only requires “intent to promote or
facilitate” the commission of a crime).

                                               12
That said, the evidence produced at trial readily permitted a rational trier of fact to

conclude beyond a reasonable doubt that the State had proven the elements of

conspiracy, and Downs was not prejudiced by this slight misstatement.

                                        ***

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

Court is AFFIRMED as to Downs’ convictions of first-degree robbery, third-degree

assault, and second-degree conspiracy and VACATED as to Downs’ convictions of

theft of a firearm and possession of a firearm by a person prohibited.

                                        BY THE COURT:


                                        /s/ Gary F. Traynor
                                        Justice




                                          13
