           IN THE SUPREME COURT OF THE STATE OF DELAWARE


IRVAN ADAMS,                        §     No. 700, 2014
                                    §
      Defendant Below,              §
      Appellant,                    §     Court Below – Superior Court
                                    §     of the State of Delaware in and
      v.                            §     for Kent County
                                    §
STATE OF DELAWARE,                  §     Cr. Id. No. 1310005383
                                    §
      Plaintiff Below,              §
      Appellee.                     §

                         Submitted: August 19, 2015
                         Decided:   September 28, 2015

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

Upon appeal from the Superior Court. REVERSED and REMANDED.

Bernard J. O’Donnell, Esquire, Office of Public Defender, Wilmington, Delaware,
for Petitioner Below, Appellant, Irvan Adams.

John R. Williams, Esquire, Deputy Attorney General, Dover, Delaware, for
Plaintiff Below, Appellee, State of Delaware.




SEITZ, Justice:
                                I.     Introduction

      In October, 2014, a Superior Court jury convicted Irvan Adams of

possession of a firearm by a person prohibited, possession of ammunition by a

person prohibited, carrying a concealed deadly weapon, and conspiracy second

degree. The Superior Court judge sentenced Adams to five years at Level V on the

conviction for possession of a firearm by a person prohibited, and suspended the

terms of imprisonment on the remaining offenses for probation.

      Adams raises one issue on appeal. He claims the Superior Court abused its

discretion when it refused to admit into evidence a prior consistent statement of

Adams’s brother, Javan Cale.         Adams claims the affidavit supported Cale’s

exculpatory testimony at trial and rebutted the State’s implication of recent

fabrication on Cale’s part. The trial judge refused to admit the affidavit, ruling it

was superfluous.

      We find that the trial court erred when it sustained the State’s objection and

excluded the affidavit from evidence, and that the exclusion was not harmless error

beyond a reasonable doubt. We therefore reverse Adams’s conviction and remand

for proceedings not inconsistent with this opinion.

                      II.    Facts And Procedural History

      On October 8, 2013, Dover Police Corporal Thomas Hannon, Detective

Mark Hurd, and Probation Officer Daniel Stagg stopped the car driven by Cale for


                                             2
a burned out brake light. 1 Adams was seated in the front passenger side seat.

Erick Morton, a cousin of Cale’s girlfriend, sat in the rear passenger side seat. 2

The occupants were removed from the car while the Officers searched the car after

smelling marijuana.3 The Officers found a Snake Slayer Colt .45 handgun under

the driver’s front seat where Cale had been sitting. Underneath the front passenger

seat where Adams had been seated the Officers found a loaded 10 millimeter

Glock Model 20 semi-automatic pistol. After the Officers took the car from the

scene and searched it further, they found a loaded 9 millimeter Glock Model 19

semi-automatic pistol underneath the rear passenger seat that had been occupied by

Morton.4

       At the Dover police station, upon questioning, Adams initially invoked his

Miranda rights. According to Corporal Hannon, as he was being escorted to his

cell and told what the charges were, he became upset and started to explain what

happened. Corporal Hannon testified that Adams told him that Adams’s brother,

Cale, called Adams the night before and said he had been robbed at gunpoint. He

also testified that Adams told him that his purpose in coming to Dover was to help

his brother find the person who robbed him. 5 Corporal Hannon testified that


1
  App. to Answering Br. at 2 (Trial Test. of Cpl. Thomas Hannon, Oct. 13, 2014).
2
  Id. at 3.
3
  Id. at 2-4.
4
  Id. at 4, 7; id. at 17 (Trial Test. of Officer Daniel Stagg, Oct. 14, 2014).
5
  Id. at 8-9 (Trial Test. of Cpl. Thomas Hannon, Oct. 13, 2014).

                                                  3
Adams admitted he knew about the guns but Adams told him he did not plan to use

them because “he was a country boy who used his hands.” 6 Probation Officer

Stagg, who discovered the loaded 10 millimeter Glock under the front passenger

seat, testified that it was accessible to Adams. 7 Adams was a convicted felon

prohibited from possessing a firearm. 8

       Before Adams’s trial, Cale pled guilty to possession of a firearm by a person

prohibited, two counts of carrying a concealed deadly weapon, and conspiracy.9

He had been sentenced by the time of Cale’s trial and had served a prison sentence

and was out on work release.10 The State called him as a witness at Adams’s trial.

The State played Cale’s taped interview with police after his arrest. 11 In the

interview Cale first admitted responsibility for only one gun. After Detective

Hurd, who was interviewing him, told Cale that the police had found three guns,

Cale changed his story and admitted all three guns belonged to him. He said he

gave one of the firearms to Adams and another to Morton before Cale, Adams, and

Morton went looking for the person who had robbed Cale at gunpoint.12 Cale said




6
  Id. at 9.
7
  Id. at 18 (Trial Test. of Officer Daniel Stagg, Oct. 14, 2014).
8
  Id. at 9 (Trial Test. of Cpl. Thomas Hannon, Oct. 13, 2014).
9
  Id. at 21 (Trial Test. of Javan Cale, Oct. 14, 2014).
10
   App. to Opening Br. at 90-91 (Trial Test. of Javan Cale, Oct. 14, 2014).
11
   App. to Answering Br. at 24 (Trial Test. of Det. Scott Andrew Hurd, Oct. 14, 2014).
12
   App. to Opening Br. at 68-72 (Trial Test. of Javan Cale, Oct. 14, 2014).

                                                   4
in the interview he did not know where the gun he gave Adams was found by

police because he did not know where Adams put it. 13
                                                                                           14
       At Adams’s trial, Cale testified to yet another version of events.

Regarding the firearms, he testified that he had been target shooting the night

before the robbery and had left the guns under the seat.15 He also claimed that

neither Adams nor Morton knew the handguns were under their seats. 16 He

testified he was high on marijuana when he was earlier questioned by police and

had “made up stories” because he was scared. 17

       Morton testified at Adams’s trial that he was aware that Cale had been

robbed, but there was no discussion of guns in the car. 18 Adams also testified at

his trial, and claimed that, although his brother was upset, there was no discussion

of guns and he was unaware of guns in the car.

       Pertinent to this appeal, during redirect examination of Cale by the State at

Adams’s trial, the State asked pointed questions consistent with the State’s theme

that Cale’s account at Adams’s trial was a recent fabrication as to how the guns

had gotten into the car. After showing the jury Cale’s taped interview with police,

13
   Id. at 104.
14
   The State also tried Morton on weapons charges. During Morton’s trial, Cale told three
different versions of how the firearms ended up under the car seats. Morton v. State, 2014 WL
7252046, at *1 (Del. Dec. 19, 2014).
15
   App to Opening Br. at 40 (Trial Test. of Javan Cale, Oct. 14, 2014).
16
   Id. at 82.
17
   Id. at 45, 62, 87, 99.
18
   Opening Br. at 5.

                                                 5
the State in its questions suggested Cale was telling a different story at Adams’s

trial because, having pled guilty and already been sentenced, Cale was no longer

concerned for himself and was now seeking to help his brother:

             Prosecutor: [In the taped interview with police], you were
      trying to help yourself by cooperating, right?

            Cale:        I guess, yes, yes.

            Prosecutor: Yes. And by cooperating, that meant telling
      Detective Hurd everything that had happened and how those guns
      ended up in your car; isn’t it true?

            Cale:        Yes. Yes. You can say yes.

            Prosecutor: And how you had given the ten millimeter Glock
      to your brother. That’s what you said?

            Cale:        Yeah, I guess. Yes.

             Prosecutor: So to help yourself you essentially threw your
      brother under the bus, and now he’s – you put a gun in his hand,
      didn’t you?

             Cale:       I guess you could say that.
             ....
             Prosecutor: But by the end of [the interview with police], an
      interview where, by your own admission, you were trying to help
      yourself by cooperating with the police, you went from, I had one gun
      and I was on my way to Little Caesars, to, there were three guns, they
      were all mine, I gave the other two to my brother and to Erick, and we
      were looking for the guy who robbed me. Isn’t that how it went?

            Cale:        Yeah, I guess.
            ....

            Prosecutor: And how did you put it? This is the honest-to-god
      truth? Do you remember you saying that story?
                                              6
                 Cale:          Yeah, from seeing it.

                 Prosecutor: Right. And now you’re sitting here having been
          convicted of those four crimes, possession of a firearm by a person
          prohibited, two counts of carrying a concealed deadly weapon for the
          other two guns in your car, and conspiracy?

                 Cale:          Mm-hmm.

                Prosecutor: Having pled guilty freely and voluntarily with full
          knowledge of what those offenses were all about and the possible
          penalties you faced?

                 Cale:          Mm-hmm.

                Prosecutor: You’re now saying: I didn’t give my brother the
          gun and he didn’t know it was in the car?

                 Cale.          No, he didn’t know it was in the car.

                Prosecutor. Alright. And that’s because you love your brother
          and you don’t want to see him get into trouble because your case is
          over?

                 Cale.          No.

                 Prosecutor. Now it’s his turn for you to help him?

                 Cale.          No, because that’s the truth.

                 Prosecutor. Right. I have no further questions.19




19
     App. to Opening Br. at 102-06 (Trial Test. of Javan Cale, Oct. 14, 2014).

                                                      7
        In response, defense counsel sought on Cale’s re-cross examination to

introduce a two-sentence 2013 affidavit executed by Cale about a week after Cale

was arrested.20 Cale states in the affidavit:

        I, Javan Cale, clearly state that on October 8, 2013 the weapons found
        in my trunk by the Dover Police Department belong to me.
        Furthermore, the other people in the vehicle (Irvan F. Adams, Jr. and
        Erick Morton) had no knowledge that the weapons were in the
        vehicle.21

        The State objected on two grounds:

        First of all, there was reciprocal discovery in this matter, and that
        document has never been provided to the State. Second of all, that
        question would potentially elicit the contents of that document and
        what it is, and that’s what we’re objecting to. 22

That is, the State appeared to object on the basis that: (1) the defense never

provided it a copy of the affidavit despite reciprocal delivery obligations; and (2)

that the affidavit was inadmissible hearsay. Defense counsel represented to the

court that he provided the affidavit to the State “early on as soon as it was executed

in order to try to resolve the matter.” 23 He argued that the affidavit should be

admitted because it was “within the scope of the [State’s] redirect” in light of the

State’s focus on Cale’s inconsistency, and because it “solidifie[d]” Cale’s account




20
   Id. at 106-07.
21
   Id. at 116.
22
   Id. at 107.
23
   Id. at 107.

                                                8
at trial, having been executed just eight days after Cale’s arrest. 24 Although

defense counsel could surely have been clearer, he was noting that the affidavit

was made at a time when Cale faced criminal jeopardy and offering this to rebut

the State’s claim that Cale had changed his story to help his brother only after he

himself no longer faced criminal consequences. The trial judge, after suggesting

on his own instance and without an objection on that ground from the State that the

affidavit might have been cumulative, denied the request to admit the affidavit,

ruling: “This is of marginal value. It probably was not provided previously, though

it presumably should have been, so I’m not going to admit it.” 25

        Before Cale’s testimony continued the following morning, defense counsel

raised Cale’s affidavit again. Defense counsel confirmed that Cale’s affidavit was

drafted in preparation for a preliminary hearing and was hand-delivered to the

State to resolve the charges against Adams at that time. 26 That confirmation

therefore addressed the State’s primary objection and the trial judge’s primary

basis for excluding the affidavit. Defense counsel then renewed his request to

introduce Cale’s affidavit as “a statement made shortly after . . . that agrees with

what he’s saying today.” 27 After a colloquy with defense counsel, the trial judge



24
   Id. at 109-10.
25
   Id. at 114.
26
   Id. at 117.
27
   Id. at 118.

                                             9
confirmed his earlier ruling excluding the affidavit but based it on his own

determination that the affidavit was cumulative:

          I don’t think that changes anything . . . as . . . it’s not necessary for
          admissibility . . . . I think this is completely superfluous. There have
          been four or five versions on details relative to Mr. Cale’s concept of
          the thing. He’s given different detailed descriptions within each time
          he was questioned: At the police station, in the original trial,
          yesterday in trial. I think anything like that is totally superfluous. 28

          Despite having gotten the affidavit excluded, the State continued to stress

that Cale was telling a new story now that he faced no jeopardy to himself. For

example, after the exclusion of the affidavit, Cale then returned to the stand and the

prosecutor continued to question him about the inconsistencies in his testimony:

                Prosecutor: Essentially, you’re willing to say anything and
          everything to get yourself out of trouble aren’t you?

                 Cale: Right.

                Prosecutor: And you’re willing to do that for your friends and
          your brother, aren’t you?

                 Cale: No, I’m just here to tell the truth.29

          In its closing argument, the State zeroed in on Cale’s testimony as the

lynchpin of the State’s case. At the start of the State’s closing argument, after

reciting the elements of the crime, the State immediately brought up Cale’s

testimony:

28
     Id. at 118-19.
29
     Transcript of Trial at C21-22, State v. Adams, No. 1310005383 (Del. Super. 2014).

                                                    10
          When I was thinking about this case and primarily Javan Cale’s
          statement to Detective Hurd within hours of his arrest, the arrest of the
          defendant back at the police station on October 8, a good quote came
          into my head: “Oh, what a tangled web we weave when first we
          practice to deceive.” . . . Clearly, the evidence shows Javan Cale was
          practicing to deceive.30

          Still early in its closing argument, the State argued:

                 Nobody can argue that Javan Cale’s testimony has been
          consistent or his statements. The motives actuating any witness.
          Javan Cale told you and he told the jury in the prior proceeding in
          which he testified that his interest was to save himself, to help
          himself; that he was willing to say and do anything to help himself.
          And when he was arrested on October 8, he knew he was in trouble.
          His case is over. He’s resolved it. Now he’s here to testify for his
          brother. And that goes to what the judge has already told you. Not
          only the motives actuating any witness; the fact, if it is a fact, that the
          testimony has been contradicted or corroborated by the other
          evidence; the bias, prejudice, or interest, if any; the manner or
          demeanor upon the witness stand; and all other facts and
          circumstances shown by the evidence which affect the credibility of
          the testimony. 31

          Then, after discussing the other evidence, including Cale’s recorded

statements at the police station, the location of the pistol under Adams’s seat, and

Adams’s own unrecorded statement to Corporal Hannon that he knew the guns

were in the car, the State argued that the jury could find that Adams had

knowledge of the pistol by looking to Cale’s statement at Morton’s trial:

          The other way you would get that knowledge, the fourth aspect that
          you should consider, is that after Javan Cale had taken his plea on

30
     Id. at C169-70.
31
     Id. at C170-71.

                                                 11
       April 7 of this year, had been sentenced to jail, was then brought into
       a court to testify at Erick Morton’s trial, he’s done. Nothing more is
       going to happen to him. So what do I do? Well, I’ll help my
       girlfriend’s cousin.32

       Next, the State asked the jury to take into consideration “not only the

defendant’s motives but his own brother’s motives . . . .” 33 The State further urged

the jury to consider Cale’s initial admissions when he still faced penal

consequences and later changed his story:

       What Javan Cale, [Adams’s] brother, co-conspirator, initially told the
       police trying to be more helpful to himself because he knew he was in
       trouble . . . And you can consider that when you consider the
       credibility of his statement. He dug a deeper hole for himself trying to
       help himself by cooperating. . . . Or are you trying to cooperate to
       help yourself in the long run and now when you don’t have to, you
       decide to help your brother? Because you heard the testimony of
       Javan Cale during this trial versus what he said in the last trial versus
       what he said to Detective Hurd. Who was he helping? That’s for you
       to decide. 34

       Finally, near the end of his closing argument, the State referred to Cale as

“the main character in this case”:

       You have a lot to sort through, ladies and gentlemen. There have
       been different statements made by the one person who, clearly, is the
       main character in this case, Javan Cale. No doubt you heard it, you’ve
       seen it. He’s given different versions.35

       Following deliberations, the jury convicted Adams on all charges.

32
   Id. at C174.
33
   Id. at C180.
34
   Id. at C180-81.
35
   Id. at C186.

                                             12
                                   III.   Discussion

          Adams argues on appeal that it was an abuse of discretion to exclude Cale’s

affidavit because it was offered, not for the purpose of cumulating evidence that

Adams was unaware that a gun was beneath his seat, but instead for the purpose of

rebutting the State’s implied charge of recent fabrication against Cale. 36 Executed

before Cale pled guilty, Adams claims that the affidavit contradicted the State’s

implication of Cale’s recent fabrication of events at Adams’s trial after his own

responsibility for the events of October 8, 2013 was resolved. Adams contends

that a prior consistent statement offered for a legitimate purpose under Rule

801(d)(1)(B) should not be excluded as cumulative because a prior consistent

statement is by definition cumulative, and excluding such statements on that

ground would render Rule 801(d)(1)(B) a nullity. 37 Adams posits that the error in

this case was not harmless beyond a reasonable doubt because the case was a close

one, as evidenced by the fact that Adams’s co-defendant Morton was acquitted on

charges of possession of a firearm by a person prohibited, possession of

ammunition by a person prohibited, and carrying a concealed deadly weapon after

presentation of similar evidence to the jury at his trial.




36
     Opening Br. at 9.
37
     Id.

                                              13
       The State argues in response that the affidavit was cumulative to Cale’s trial

testimony, his prior statements to police, and his testimony at Morton’s trial

because it added nothing to those statements. 38 The State claims in the alternative

that, if the trial judge’s ruling was an abuse of discretion, it was at worst harmless

error beyond a reasonable doubt because the jury heard testimony from Corporal

Thomas Hannon that Adams had acknowledged to him the day of his arrest that he

knew there were guns in Cale’s vehicle. 39

       We review a trial court’s evidentiary rulings for abuse of discretion. 40

                   Cale’s Affidavit Was Admissible Under DRE 801

       Hearsay evidence is generally not admissible unless subject to an exception

under the Delaware Rules of Evidence (“DRE”). 41 DRE 801(d)(1) addresses prior

statements of witnesses and provides that such a statement is not hearsay if “[t]he

declarant testifies at the trial or hearing and is subject to cross-examination

concerning the statement, and the statement is (A) inconsistent with his testimony,

or (B) consistent with his testimony and is offered to rebut an express or implied




38
   Cale’s statement to police and his testimony at Morton’s trial were introduced into evidence by
the State under Rule 801(d)(1)(A) as non-hearsay prior statements inconsistent with Cale’s trial
testimony.
39
   Answering Br. at 11-12.
40
   Jones v. State, 940 A.2d 1, 9 (Del. 2007).
41
   D.R.E. 802.

                                                   14
charge of recent fabrication or improper influence or motive . . . .” 42 A charge of

recent fabrication “can be accomplished by several means of impeachment,

including opposing counsel’s questions and the introduction of prior inconsistent

statements.” 43

       Cale’s affidavit was not hearsay because he testified at trial and was

available for cross-examination, the affidavit is consistent with his trial testimony,

and the affidavit tended to rebut the State’s charge that Cale recently fabricated his

trial testimony to help his brother now that Cale was out of jeopardy. The State

focused its redirect examination to draw contrasts between Cale’s prior statements

to the police and his testimony at Adams’s trial. Cale’s case had been resolved and

he was no longer in fear of any personal consequences from the incident. Cale’s

affidavit pre-dated the resolution of his own case and was consistent with his

testimony at trial in Adams’s case. It tended to rebut the State’s implication that

Cale had recently made up his current version of events at Adams’s trial, based on

a newfound interest in helping his brother.

       The Superior Court ruled that the affidavit was superfluous, which we

interpret to mean redundant or cumulative. But, the State itself actually never

42
   D.R.E. 801(d)(1). See also 11 Del. C. § 3507 (“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 . . . . The rule . . . shall apply regardless of
whether the witness’ in-court testimony is consistent with the prior statement or not.”).
43
   Frank W. Bullock, Jr. & Steven Gardner, Prior Consistent Statements and the Premotive Rule,
24 FLA. ST. U. L. REV. 509, 514 (1997).

                                                   15
objected on this ground. And, by definition, a prior consistent statement inherently

repeats evidence that has already been heard at trial.                The rules of evidence

distinguish between introducing the same evidence simply to bolster a witness’s

testimony (DRE 103), as opposed to the specific use of cumulative testimony to

rebut a charge that the witness has a particular motive to lie on the stand (DRE

801(d)(1)(B)). 44 Here, the defense sought to admit the affidavit right after the

prosecutor accused Cale of fabricating his story at trial because he no longer faced

penal consequences and wanted to help his brother. The defense offered the

affidavit to rebut that charge because Cale executed the affidavit six months before

Cale accepted his plea when he still faced serious criminal consequences. The

affidavit was also the only documentary evidence consistent with Cale’s trial

testimony. Under DRE 801(d)(1), the affidavit was cumulative, but admissible for

purposes other than simply bolstering prior testimony.




44
   See, e.g., Tome v. United States, 513 U.S. 150, 150 (finding that the analogous federal rule of
evidence “permits the introduction of a declarant’s consistent out-of-court statements to rebut a
charge of recent fabrication or improper influence or motive only when those statements were
made before the charged fabrication, influence, or motive, conditions that were not established
here”); see also Guy v. State 999 A.2d 863, 870 (Del. 2010) (“Cumulative evidence is
‘[a]dditional or corroborative evidence to the same point. That which goes to prove what has
already been established by other evidence.’ Here, defense counsel used the out-of-court
statements for purposes different from the witnesses’ actual testimony at trial. Although the
State used the statements to prove the charges against Guy, defense counsel used the statements
to undermine the credibility of the witnesses who gave those statements.”) (citation omitted).

                                                   16
             The Error Was Not Harmless Beyond A Reasonable Doubt

       Where the Superior Court has erred in an evidentiary ruling, we must “weigh

the significance of the error against the strength of the untainted evidence of guilt

to determine whether the error may have affected judgment and determine whether

the error constituted harmless error beyond a reasonable doubt.” 45 We consider the

entire record to determine the significance of the error. 46

       Although the State presented untainted evidence of Adams’s guilt, the

State’s reliance in redirect examination and closing on inconsistencies between

Cale’s trial testimony and his prior statements outweighs the record evidence

supporting guilt, and was prejudicial to Adams. The State’s case against Adams

relied heavily on the testimony of the individuals in the car. The jury had to make

credibility determinations. After the Superior Court sustained the State’s objection

to the affidavit’s admissibility, the State took advantage of the ruling and continued

to press its theme that Cale had every reason to fabricate his trial testimony

because he was no longer in jeopardy. The State insinuated in its resumed redirect

examination that Cale was making up a story to assist his brother because he was

no longer in jeopardy. 47 Adams was unable to counter this attack by introducing

Cale’s affidavit, executed at a time where he in fact faced penal jeopardy. Then, in
45
   Edwards v. State, 925 A.2d 1281, 1285 (Del. 2007) (quoting Smith v. State, 647 A.2d 1083,
1090-91 (Del.1994)).
46
   Id. at 597-98; Van Arsdall v. State, 524 A.2d 3, 10 (Del. 1987).
47
   Transcript of Trial at C21–22.

                                                17
closing, Cale became the “main character” in the case, and the State once again

focused its attention on the inconsistencies between Cale’s trial testimony and prior

statements. 48 Adams once again could not rely on the affidavit to counter this

charge, as defense counsel promised he would do in his opening statement. 49

       If further corroboration was needed of the closeness of the case and the

degree of prejudice resulting from the error, one need only look to the outcome of

fellow co-defendant Morton’s trial. The evidence and testimony at the two trials

were similar, and in particular Cale’s testimony at the two trials was similar. 50 The

jury acquitted Morton of the firearms offenses.51

                                      IV.    Conclusion

       The Superior Court erred by not admitting Cale’s affidavit into evidence,

and the error was not harmless beyond a reasonable doubt. The judgment of the

Superior Court is reversed, and the case is remanded to the Superior Court for

proceedings not inconsistent with this opinion. Jurisdiction is not retained.


48
   Id. at C169-71; 174; 180-81.
49
   Id. at A38-39.
50
   See Morton, 2014 WL 7252046, at *1 (“Cale . . . told three different versions of how the
firearms ended up under the seats of the SUV. Cale’s first version was told to police during a
recorded interview where Cale stated that the firearm under the driver's seat was his, but that he
did not know how the other guns got into the SUV. After being informed that all three guns
would be checked for DNA, Cale changed his story. He stated that all three guns were his, and
that he had given the ten-millimeter Glock to Adams and the nine-millimeter Glock to Morton.
At trial, Cale changed his story again. This time he denied giving the ten-millimeter Glock to
Morton and testified that it was there prior to Morton getting in the car.”).
51
   Id.



                                                   18
