IN THE SUPREME COURT OF THE STATE OF DELAWARE

ABDUL WHITE, § § No. 210, 2018 Defendant-Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID No. 1508010489 (K) STATE OF DELAWARE, § § Plaintiff-Below, § Appellee. § Submitted: January 16, 2019 Decided: February 19, 2019 Before STRINE , Chief Justice; VALIHURA , and SEITZ , Justices. ORDER This 19 th day of February, 2019, having considered the briefs and the record below and oral argument, it app ears to the Court that: (1) After a two-week trial, a Superior Court jury convicted Abdul White of murder first degree and lesser charges after he and two associates broke into a home, held those inside captive, and killed John Harmon in pursuit of dr ugs believed to be in Harmon’s home. On a ppeal, White argues the Superior Court erred by (1) not granting a mistrial after alleged Brady 1 evidence surfaced, (2 ) denying defense requests during the trial to order the Stat e to produce documents and information,

1 Brady v. Maryland , 373 U.S. 83 (1963).2 and (3) allowing the State to introduce into evidence White’s tattoo which read “Duct Tape Bandit.” After a careful review of the record, we fi nd that the trial court acted within its discretion on each issue and affirm White’s convictions. (2) On August 8, 2015, White and two ot her masked and armed men broke into John Harmon’s home and re strained all eleven occupants. White’s wife drove the three men to the house. White and hi s associates believed Harmon had a large amount of marijuana at the house. White ordered his accomplices to restrain the occupants with duct tape. White then allegedly interr ogated and tort ured Harmon trying to find the hiding place for the mar ijuana. Eventually, Harmon was shot and the three men fled the house without finding any drugs. (3) The five adult witnesses who tes tified described the man who shot Harmon as substantially larger than the other two and wearing a helmet. 2 The helmet had a light duct-taped to it and was found in Harmon’s house with White’s fingerprint on it. 3 One witness also identified th e shooter as having a tattoo on his face—which White also has. 4 (4) At trial White testified that he wa s in the house, but not the person who shot Harmon. White also cl aimed that he participated in the crime under duress. According to White, Kevin McDonald, Sr.—White’s cousin—led a criminal

2 App. to Answering Br. at B10-19 (Trial Tr.). 3 Id. at B32. 4 Id. at B5.3 operation which included White. White claime d to fear for his life if he did not aid McDonald because White owed him $20,000. (5) During the trial White’s counsel noted that Khalil Baines, one of the men with White during the robbery, had gi ven a two-and-a-half-hour statement to the police, largely related to the robbery, that was not provided to White. White argued that the statement was Brady evidence and also a statement by a codefendant—both of which shoul d have been disclosed to the defense. The court accepted the prosecutor’s statement that not hing in the statement was exculpatory, but ordered it produced as arguably a co-def endant’s statement. The court gave White a few days to review th e tape before continuing the trial. The Superior Court denied White’s request for a mistrial, noting that White had not alleged any substantial prejudice and there was no evidence of prosecutorial bad faith. 5 (6) Upon resumption of the trial, White re quested that the State be ordered to produce the probable cause affidavit a ttached to a search warrant request for Baines’ DNA, and a sample of the DNA itself. The tria l court refused because the DNA was sought for a separate drug case involving Baines, and the State had not compared Baines’ DNA to any DNA found in Harmon’s home. (7) During trial the State sought to introduce evidence of the tattoo on White’s stomach reading “Duct Tape Bandit” in a motion in limine. White opposed

5 App. to Opening Br. at A86-87 (Trial Tr.).4 the motion, claiming the tattoo was in admissible hearsay and the State was improperly using it as prejudicial characte r evidence. The Superior Court admitted the tattoo because it was a party admission, duct tape was used at the crime scene, and the risk of prejudice did not substantially outweigh its probative value. 6 (8) After trial but before the verdict, the State received information of threats made against White after he testif ied. The Superior Court denied White’s requests for details about the threats. It fo und that the information came too late for White to use in his defense and a late-2017 threat would have lim ited relevance to a 2015 murder. The Superior Court jury convi cted White of murder first degree and various lesser offenses. He was sentenced to life imprisonment for murder and over a hundred years for the litany of other charges. (9) A few months after trial, White became aware of misconduct by Carl Rone, the State’s ballistics expert, and s ought discovery of information about the charges that resulted in his legal troubles. The Superior Court ruled that because the State was not aware of any problem until about two months after the trial ended, Rone’s report was admitted jointly, and Rone did not testify, the State did not have to provide further information. (10) On appeal, White argues that the S uperior Court should have required the State to produce its search warrant a ffidavit for Baines’ DNA and the DNA itself

6 State v. White , 2017 WL 3084711, at *2 (Del. Super. July 20, 2017).5 because they might have been relevant to the crime scene evid ence in the murder case. The State argues in response that the State collected Baines’ DNA for an unrelated drug investigation that had nothi ng to do with the Harmon murder. We review the Superior Court’s denial of the request for abuse of discretion. 7 (11) We agree with the Superior Court th at the affidavit of probable cause and search warrant application for a DNA sa mple and the sample itself did not have to be produced. The State re quested the sample in an unrelated case. Further, the State did not conduct a DNA comparison between Baines’ DNA and DNA from the murder scene. Thus, the information wa s irrelevant to the murder trial. (12) White also argues that the Superior Court should have required the State to disclose information relating to threats ag ainst White after he testified at trial. White claims he could have used the eviden ce during trial. Th e State responds that the information could not have been used at trial because it did not come to light until after the case went to the jury. We find that the Superior Court did not err in denying the request. As th e court properly observed, a threat made in 2017 was irrelevant to a 2015 dure ss defense. (13) Next, White contends the court erre d in not ordering production of any evidence related to the ba llistics expert’s discipline and resignation from State employment. We agree with the Superior Court, however, that the State did not

7 Valentin v. State , 74 A.3d 645, 648 (Del. 2013).6 know of information related to Rone’s a lleged misdeeds until over two months after White was convicted. More to the point, Rone did not testify in the murder trial and his report was admitted after a joint stipul ation of admissibility between the State and the defense. (14) White also argues that the trial court should have granted a mistrial after the State produced Baines’ statement, instead of granting White four additional days to review the statement and respond. We review the denial of a motion for mistrial for abuse of discretion. 8 The State does not appear to dispute that White was entitled to the video as a co-defendant’s statemen t, but notes that White does not argue any specific prejudice. We agree w ith the State that the delay in trial cured any prejudice by the late disclosure. Further, Baines’ statement did not include any exculpatory statements to support White, White had four days to prepare before having to resume trial, and White was probably aware of the statement prior to trial. 9 (15) White suggests that earlier knowledge of the statement would have helped him “determine how to appropriately use that evidence, what witnesses to call, and how to conduct cros s examination of all witnesses, including not being deceived by the chief investigating officer.” 10 But, after receiving the statement,

8 Michaels v. State , 970 A.2d 223, 229 (Del. 2009). 9 App. to Opening Br. at A211 (Letter to Matth ew Buckworth from Lindsay Taylor); App. to Answering Br. at B48 (Trial Tr.). 10 Opening Br. at 23.7 White did not request more ti me to call a different witne ss, did not try to recall the chief investigating officer to the stand, or make any similar reque sts. White has not identified any prejudice he suffered following production of the statement. 11 (16) Finally, White argues that the Supe rior Court erred in admitting his “Duct Tape Bandit” tattoo be cause it was prohibited character evidence, hearsay, and any probative value it had was substantia lly outweighed by the risk of prejudice. The State responds that the tattoo is releva nt because duct tape was used extensively in the home invasion, the tattoo helped id entify White as the robber using duct tape, and the tattoo was self-explanatory. 12 Further, according to the State, the tattoo was not hearsay because it was an admission by a party opponent. (17) The Superior Court did not abuse its discretion in admitting the tattoo. The tattoo qualified as a stat ement made by, or adopted by, White. A statement made by, or adopted by, a party opponent is admissible as non-hearsay. 13 The State’s use of the tattoo was also not improper as evidence of a prior crime, wrongdoing, or act under D.R.E. 404(b). In Watson v. State 14 we recently dealt with a similar issue

11 White also argued that the f our issues above, cumulatively, c onstituted error sufficient to mandate a mistrial. As discussed above, however, none of the actions of the Superior Court were outside its discretion. And even taken cumula tively White has not alleged any substantial prejudice. See Michaels v. State , 970 A.2d 223, 231 (Del. 2009) (finding no cumulative error where the defendant has not show n any substantial prejudice). 12 The State suggests “it means that he robs people and utilizes duct ta pe to facilitate his crimes.” Answering Br. at 23. 13 See D.R.E. 801(d). 14 2015 WL 1279958, at *2 (Del. Mar. 19, 2015) (TABLE).8 of a tattoo purportedly representing a criminal act. This Court found that a tattoo of “187,” believed to represent the crime of killing a police officer, was sufficient evidence of intent to be admissible and not run afoul of D.R.E 404(b). Finally, under D.R.E. 403 any prejudice by admission did not substantially outweigh its probative value. During the murder, the house occupants and the victim were restrained with duct tape at White’s order, and White’s helmet with his fingerprint had a light ducttaped to the top. The tattoo helped iden tify White as the robbe r who used duct tape and committed the murder. Thus, the Superi or Court did not abuse its discretion by admitting the tattoo into evidence. NOW, THEREFORE, it is hereby OR DERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT: /s/ Collins J. Seitz, Jr. Justice